United States District Court, E.D. Michigan, Southern Division
At a session of said Court, held in the U.S. Courthouse, Detroit, Michigan on June 12, 2015
PRESENT: Honorable Gerald E. Rosen Chief Judge, United States District Court
OPINION AND ORDER DENYING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE HIS CONVICTION AND SENTENCE
GERALD E. ROSEN, Chief District Judge.
On November 29, 2007, Petitioner Fawzi Mustapha Assi entered a plea of guilty to count one of the indictment in this case, in which Petitioner was charged with attempting to provide material support to a foreign terrorist organization in violation of 18 U.S.C. § 2339B(a)(1). In accordance with the plea agreement entered into by the parties under Fed. R. Crim. P. 11, the remaining three counts of the indictment were dismissed. The parties further agreed that in determining Petitioner's sentence, the Court would decide whether to apply § 3A1.4 of the U.S. Sentencing Guidelines, which calls for a sentencing enhancement if the offense of conviction "is a felony that involved, or was intended to promote, a federal crime of terrorism."
Following an evidentiary hearing on June 23, 2008, the Court held in an October 17, 2008 opinion and order that § 3A1.4 was applicable in determining Petitioner's sentencing range under the Sentencing Guidelines. See United States v. Assi, 586 F.Supp.2d 841 (E.D. Mich. 2008). As a result, the Guidelines called for an advisory sentencing range of 235 to 293 months, but this "range" was reduced to 120 months - the statutory maximum sentence for a violation of 18 U.S.C. § 2339B(a)(1) at the time Petitioner committed his offense - by operation of § 5G1.1(a) of the Guidelines. On December 12, 2008, the Court sentenced Petitioner to a 120-month term of imprisonment and two years of supervised release, and the Sixth Circuit Court of Appeals affirmed Petitioner's sentence on direct appeal, rejecting his various challenges to this Court's application of the § 3A1.4 sentencing enhancement. See United States v. Assi, No. 09-1021, 428 F.Appx. 570 (6th Cir. June 30, 2011).
Through the present pro se motion brought under 28 U.S.C. § 2255, Petitioner challenges his conviction and sentence on a variety of grounds. The Government has filed a response in opposition to this motion, arguing that Petitioner's various attacks on his conviction and sentence are defeated by a combination of procedural default, the "law of the case" doctrine, and an absence of factual and/or legal support. As discussed below, the Court agrees with the Government that Petitioner's motion must be denied in its entirety.
As noted by the Government, Petitioner's pro se motion is somewhat unclear in its delineation and presentation of the issues Petitioner wishes to pursue. Nonetheless, the Court reads Petitioner's motion as advancing the following challenges to his conviction and sentence: (i) that his guilty plea failed to provide factual support for the scienter element of the offense defined by 18 U.S.C. § 2339B(a)(1), (ii) that § 2339B is void for vagueness, (iii) that the Court erred in applying the § 3A1.4 enhancement to determine Petitioner's sentencing range under the Sentencing Guidelines, and (iv) that the undersigned judicial officer was obligated to recuse himself from presiding over this case or deciding the present motion because of his Jewish religious affiliation. The Court addresses each of these issues in turn.
A. Petitioner's Challenge to the Scienter Element of His Guilty Plea Is Procedurally Defaulted and Lacking in Merit.
As the first issue advanced in his present motion, Petitioner contends that his plea of guilty to count one of the indictment is invalid for lack of a factual basis to support the scienter element of the § 2339B offense to which he pled guilty. Yet, because Petitioner failed to raise this challenge to his guilty plea on direct appeal, the Court finds that this claim has been procedurally defaulted. In addition, Petitioner has failed to make a showing of actual innocence that would overcome this procedural default.
The Supreme Court has "strictly limited the circumstances under which a guilty plea may be attacked on collateral review." Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 1610 (1998). In particular, because "[h]abeas review is an extraordinary remedy and will not be allowed to do service for an appeal, " the Supreme Court has emphasized that "the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review." Bousley, 523 U.S. at 621, 118 S.Ct. at 1610 (internal quotation marks and citations omitted); see also Waucaush v. United States, 380 F.3d 251, 254 (6th Cir. 2004). Applying this principle here, Petitioner's failure to challenge his guilty plea on direct appeal means that he has procedurally defaulted his present claim that this plea lacked a factual basis. See Bousley, 523 U.S. at 621, 118 S.Ct. at 1610; Vanwinkle v. United States, 645 F.3d 365, 369 (6th Cir. 2011).
In light of this procedural default, Petitioner may pursue his present challenge to his guilty plea only by demonstrating either (i) cause for his default and prejudice that would result from the failure to consider this challenge, or (ii) that he is actually innocent of the § 2339B offense to which he pled guilty. See Bousley, 523 U.S. at 622, 118 S.Ct. at 1611; Waucaush, 380 F.3d at 254. Petitioner makes no effort in his motion to establish cause and prejudice,  but instead endeavors to demonstrate his actual innocence of violating § 2339B(a)(1). Specifically, he points to the same purported factual insufficiency that underlies his substantive challenge to his guilty plea, arguing that the record fails to establish the element of scienter that is necessary to find him guilty of a § 2339B offense.
The Supreme Court has explained that an "actual innocence" inquiry focuses on "factual innocence, not mere legal insufficiency." Bousley, 523 U.S. at 623, 118 S.Ct. at 1611. Accordingly, Petitioner "must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley, 523 U.S. at 623, 118 S.Ct. at 1611 (internal quotation marks and citations omitted). Assuming that Petitioner can make such a threshold showing of actual innocence, the Government's rebuttal of this showing need not be confined solely to the evidence "presented during [P]etitioner's plea colloquy, " but may instead rest upon "any admissible evidence of [P]etitioner's guilt" that might be found anywhere in the record. Bousley, 523 U.S. at 624, 118 S.Ct. at 1611-12.
In support of his claim of actual innocence, Petitioner focuses on the statutory requirement that he must have "knowingly" provided material support or resources to a foreign terrorist organization. See 18 U.S.C. § 2339B(a)(1). At his November 27, 2007 plea hearing, Petitioner initially testified as follows as to the factual basis for this and the other elements of the § 2339B offense to which he pled guilty:
THE COURT: How do you plead to Count One of the indictment?
THE COURT: Please tell me what you did, sir?
DEFENDANT: On July 13th 98, I was boarding an airplane going to Lebanon and -
THE COURT: Was that here in Detroit?
DEFENDANT: Yes, in Detroit. I was stopped. In my possession I had two global positioning modules, night vision goggles and [a] thermal imaging camera. These items were going to a person in Lebanon who was purchasing these items [for] Hizballah wh[ich] was designated as a foreign terrorist organization at the time.
THE COURT: Did you know at the time that what you were doing was illegal?
DEFENDANT: I know it was sending these items to ...