United States v. Alebbini

UNITED STATES OF AMERICA, Plaintiff, v. LAITH WALEED ALEBBINI, Defendant.

Nos. 3:17-cr-071, 3:21-cv-259

United States District Court, S.D. Ohio, Western Division

September 16, 2022

District Judge Walter H. Rice

REPORT AND RECOMMENDATION

MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE

This case under 28 U.S.C. § 2255 is before the Court for decision on the merits. Relevant pleadings are Defendant's § 2255 Motion to Vacate (ECF No. 132) the Government's Response in Opposition (ECF No. 163) and Defendant's Traverse (ECF No. 170). The § 2255 Motion was referred to the undersigned before February 1, 2022, for a report and recommendations; ultimate decision of the Motion is reserved to the assigned District Judge, Walter H. Rice.

Litigation History

Defendant was indicted by the grand jury for this District on May 11, 2017, and charged with knowingly attempting to provide material support and resources to ISIS, a foreign terrorist organization, in his own person, in violation of 18 U.S.C. § 2339B(a)(1)(Count One)(ECF No. 12). A First Superseding Indictment filed May 21, 2018, added a count of conspiring to violate the same statute (ECF No. 36). On September 4, 2018, Defendant waived his right to trial by jury (ECF No. 56). The case was tried to the bench beginning November 13, 2018 (Minute Entries, ECF No. 60, et seq.). On December 6, 2018, Judge Rice announced his verdict of guilty on both counts (ECF No. 71). On June 13, 2019, Judge Rice sentenced Defendant to 180 months on each count with the time to be served concurrently (Minutes, ECF No. 91). Defendant appealed to the Sixth Circuit Court of Appeals which affirmed the conviction on November 5, 2020. United States v. Alebbini, 979 F.3d 537 (6^th Cir. Nov. 5, 2020)(copy at ECF No. 127). Neither the docket nor the Westlaw database reflects any attempt by Defendant to obtain review by the United States Supreme Court.

Defendant filed his § 2255 Motion to Vacate in this Court on September 21, 2021, pleading the following Grounds for Relief:

Ground One: Prosecutorial Misconduct

Sub-claim A: By Making False Statements to the Court (ECF No. 132, PageID 3988).

Sub-claim B: By Surprise Id. at PageID 3991.

Ground Two: Ineffective Assistance of Counsel

Sub-claim A: By choosing a bad strategy. Id. at PageID 3991, PageID 4001.

Sub-claim B: By making a Harmful Objection. Id. at PageID 3997.

Sub-claim C: By failure to present evidence on behalf of the Defendant. Id. at PageID 3998.

Sub-claim D: Defense counsel refused to file post-conviction motions on behalf of Defendant.

Ground Three: Judicial Misconduct

Sub-claim A: Classified Information Procedure Act. Id. PageID 4003.

Sub-claim B: The Honorable Judge Rice does not accept pro se motions. Id.

Sub-claim C: The verdict is not supported by sufficient competent evidence. Id.

Government's Response

The United States defends against Alebbini's claims on a number of bases. Some of the claims or sub-claims are argued to be procedurally defaulted because they were not properly preserved by objection at trial or raised on appeal. Some are argued to be barred by res judicata because they were raised on appeal, but decided adversely to Alebbini's claim, or could have been raised on appeal but were not. Finally, some are argued to be without merit.

§ 2255: Scope of the Remedy

A prisoner seeking relief under 28 U.S.C. § 2255 must allege either “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid” Mallett v. United States, 334 F.3d 491, 496-97 (6^th Cir. 2003); Nichols v. United States, 563 F.3d 240, 250 (6^th Cir. 2009). In other words, to warrant relief under § 2255, a prisoner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect of influence on the guilty plea or the jury's verdict. Griffin v. United States, 330 F.3d 733, 737 (6^th Cir. 2006), citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). To obtain relief under 28 U.S.C. § 2255, a defendant must establish the denial of a substantive right or defect in the trial that is inconsistent with the rudimentary demands of fair procedure. United States v. Timmreck, 441 U.S. 780 (1979); United States v. Ferguson, 918 F.2d 627, 630 (6^th Cir. 1990)(per curiam). Relief under 28 U.S.C. § 2255 is available when a federal sentence was imposed in violation of the Constitution or laws of the United States or the trial court was without jurisdiction or the sentence is in excess of the maximum sentence allowed by law, or is "otherwise subject to collateral attack." United States v. Jalili, 925 F.2d 889, 893 (6^th Cir. 1991). Apart from constitutional error, the question is "whether the claimed error was a 'fundamental defect which inherently results in a complete miscarriage of justice,'" Davis v. United States, 417 U.S. 333, 346 (1974), quoting Hill v. United States, 368 U.S. 424, 428-429 (1962); see also Griffin v. United States, 330 F.3d 733, 736 (6^th Cir. 2006). Nonconstitutional claims not raised at trial or on direct appeal are waived for collateral review except where the errors amount to something akin to a denial of due process. Grant v. United States, 72 F.3d 503, 506 (6^th Cir. 1996).

Procedural Default Generally

The procedural default doctrine in habeas corpus is described by the Supreme Court as follows:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause of the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 (6^th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). “Absent cause and prejudice, ‘a federal habeas petitioner who fails to comply with a State's rules of procedure waives his right to federal habeas corpus review.'” Boyle v. Million, 201 F.3d 711, 716 (6^th Cir. 2000), quoting Gravley v. Mills, 87 F.3d 779, 784-85 (6^th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.

[A] federal court may not review federal claims that were procedurally defaulted in state court-that is, claims that the state court denied based on an adequate and independent state procedural rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009). This is an important “corollary” to the exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124 S.Ct. 1847, 158 L.Ed. d 659 (2004). “Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address” the merits of “those claims in the first instance.” Coleman [v. Thompson], 501 U.S. [722,] 731-732, 111 S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. The procedural default doctrine thus advances the same comity, finality, and federalism interests advanced by the exhaustion doctrine. See McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct.1454, 113 L.Ed.2d 517 (1991).

Davila v. Davis, 137 S.Ct. 2058, 2064 (2017). “[A] federal court may not review federal claims that were procedurally defaulted in state courts.” Theriot v. Vashaw, 982 F.3d 999 (6^th Cir. 2020), citing Maslonka v. Hoffner, 900 F.3d 269, 276 (6th Cir. 2018) (alteration in original) (quoting Davila v. Davis, 137 S.Ct. 2058, 2064 (2017)).

This precedent relates directly to defaults occurring in the state courts, but the procedural default analysis of Wainwright and its progeny is fully applicable to § 2255 motions. United States v. Frady, 456 U.S. 152 (1982); Kaufman v. United States, 394 U.S. 217 (1969); Ratliff v. United States, 999 F.2d 1023 (6^th Cir. 1993).

Res Judicata Generally

[W]hen a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are bound "not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose." Cromwell v. County of Sac, 94 U.S. 351, 352 (1877). The judgment puts an end to the cause of action, which cannot again be brought into litigation between the parties upon any ground whatever, absent fraud or some other factor invalidating the judgment. Commissioner v. Sunnen, 333 U.S. 591 (1948), diverged from in Montana v. United States, 440 US. 147 (1979).

"[R]es judicata has four elements: (1) a final decision on the merits by a court of competent jurisdiction; (2) a subsequent action between the same parties or their privies; (3) an issue in the subsequent action which was litigated or which should have been litigated in the prior action; and (4) an identity of the causes of action." Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 528 (6^th Cir. 2006), quoting Kane v. Magna Mixer Co., 71 F.3d 555, 560 (6^th Cir. 1995); State of Ohio ex rel Boggs v. Cleveland, 655 F.3d 516 (6^th Cir. 2011).

Analysis

Reading Alebbini's Traverse as a whole, it evinces a desire to re-try the case. Issues that were tried and decided by Judge Rice, who was then affirmed on appeal, are brought forward in the ...