Tchibassa v. Willis
MEMORANDUM OPINION AND ORDER. Dismissed without prejudice. Denied a certificate of appealability. Signed by Judge Frank Montalvo. (lc3)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
Reg. No. 25340-069,
MEMORANDUM OPINION AND ORDER
Artur Tchibassa seeks relief from his sentence through apro se "Petition for Writ of Habeas
Corpus Pursuant to 28 U.S.C. Section 2241 under 2255(e) Savings Clause" (ECF No. 1). Tchibassa, a
federal prisoner at the La Tuna Federal Correctional Institution in Anthony, Texas,1 asserts the trial court
erred when it failed to resentence him after the Supreme Court decided United States v. Booker, 543 U.S.
220 (2005), and denied his motion to dismiss his indictment on speedy trial grounds.2 He also invokes
the strictissimijuris standardwhich would require the prosecution to strictly show his personal criminal
purposeto proclaim his actual innocence. After reviewing the record and for reasons discussed below,
the Court will, on its own motion, dismiss Tchibassa's petition, pursuant to 28 U.S.C. § 2243.
BACKGROUND AND PROCEDURAL HISTORY
Tchibassa' s criminal case arose from the 1990 hostage-taking of a United States citizen, Brent
Anthony is located in El Paso County, Texas, which is within the territorial limits of the Western District
of Texas, El Paso Division. 28 U.S.C. § 124(d)(3) (2012).
Pet'r's Pet 1, ECF No.
28 U.S.C. § 2243 (2012) ("A court ... entertaining an application for a writ of habeas corpus shall
forthwith award the writ or issue an order directing the respondent to show cause why the writ should not
be granted, unless it appears from the application that the applicant or person detained is not entitled
Swan, in Angola by the Front for the Liberation of the Enclave of Cabinda ("FLEC"). Tchibassa acted as
FLEC's foreign minister and chief spokesman during the negotiations for Swan's release with
representatives of Swan's United States based employer, Chevron Overseas Petroleum, Inc. After
completing the negotiations, Tchibassa signed the receipt for a ransom in goods given by Chevron to
FLEC in exchange for Swan's release.
A grand jury in the United States District Court for the District of Columbia indicted Tchibassa in
1991 on one count
of conspiracy to commit hostage-taking and one count of hostage-taking.4 Tchibassa
remained at large in Zaire (now the Democratic Republic of the Congo) until his arrest in 2002. He went
to trial in September 2003, where a jury found him guilty of both counts. The district court sentenced
Tchibassa to concurrent terms of 60 months' imprisonment for the conspiracy and 293 months'
imprisonment for the hostage-taking.
Tchibassa appealed on three grounds. First, he asserted the district court erred when it treated the
United States Sentencing Guidelines as mandatory, in violation of United States
Booker, 543 U.S. 220
(2005). Second, he maintained the government violated his Sixth Amendment right to a speedy trial by
2002some eleven years after his indictmentto arrest and prosecute him.
argued the district court erred in admitting the testimony of Piotr Dietrich about a similar FLEC
hostage-taking in 1994, but excluding the testimony of Martins Lietao about his participation in FLEC
hostage negotiations in 1992 and 2001.
The District of Columbia Circuit Court of Appeals rejected Tchibassa's arguments and affirmed
his convictions and
See United States v. Tchibassa, 1:91-CR-560-TFH-3 (D. D.C.).
See United States v. Tchibassa, 452 F.3d 918 (D.C. Cir. 2006).
The D.C. Circuit reasoned the district court's treatment of the Guidelines as mandatory did not
prejudice Tchibassa. It relied on its prior analysis in United States v. Coles, 403 F.3d 764 (D.C. Cir.
2005), and explained that while the district court's treatment of the Guidelines as mandatory was plain
error, Tchibassa could not obtain relief unless he showed the error affected his substantial rights. It
observed the district court expressed its strong and unambiguous approval of the sentence's
appropriateness on the record. The D.C. Circuit was therefore
confidenteven if the district court
re-sentenced Tchibassa under the advisory Guidelinesthe district court would not impose a materially
more favorable sentence on him. Accordingly, the D.C. Circuit concluded Tchibassa could not show the
Booker error affected his substantial rights.
The D.C. Circuit next held the eleven-year delay between Tchibassa's indictment and arrest did
not violate his speedy trial rights. The D.C. Circuit explained it evaluated speedy trial claims using the
four-factor balancing test in Barker v. Wingo, 407 U.S. 514 (1972).6 These four factors included
considerations of the "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and
prejudice to the defendant."7 In Tchibassa's case, the D.C. Circuit accepted the length of the delay as
"presumptively prejudicial," which triggered its consideration of the other three Barker factors. Turning
to the second factor, it found "the fault for the delay in arrest lay primarily with Tchibassa himself'
because of his "continued residence in an area over which the United States had no control and little
It ruled the third factor also favored the government, because Tchibassa learned of the
charges against him in 1994, but did not assert his speedy trial rights until April 21, 2003, nine months
Id at 924.
Id (citing Barker, 407 U.S. at 530).
Id at 925-26.
after his arrest. Finally, the D.C. Circuit found under the fourth Barker factor that Tchibassa could not
make a showing of "articulable prejudice," but instead relied solely on "presumptive prejudice," which, it
Thus, the D.C. Circuit concluded the balance of the four Barker factors
favored the government.'0
Finally, the D.C. Circuit determined any error in the district court's admission of the testimony
from Dietrich, and the exclusion of the testimony from Lietao, was harmless.
The Supreme Court denied Tchibassa's petition for a writ of certiorari.1' A motion for collateral
relief under 28 U.S.C. § 2255 followed.
Tehibassa's § 2255 motion largely rehashed the same issues raised in his direct appeal. 12 First, he
asserted an entitlement to re-sentencing based on Booker.
Second, he claimed his trial counsel provided
ineffective assistance by failing to object to the application of the Guidelines as mandatory. Third, he
argued his trial and appellate counsel failed to effectively argue the delay in bringing him to trial violated
his speedy trial rights. Finally, he claimed the district court erred in admitting Dietrich's testimony, and
excluding Lietao's testimony.
Tchibassa asserted an entitlement to re-sentencing because the district court sentenced him under
the mandatory Guidelines regime, which the Supreme Court later deemed unconstitutional in Booker.
Notwithstanding the D.C. Circuit's prior rejection of his claim in his direct appeal based on its analysis
under United States v. Coles, 403 F.3d 764 (D.C. Cir. 2005), Tchibassa argued an intervening change in
Id. at 927.
' Tchibassa v. United
States, 549 U.S. 1298 (2007).
See United States v. Tchibassa, 646 F. Supp. 2d 144 (D.D.C. 2009).
law invalidated Coles. To support his claim, he cited the Supreme Court's line of decisionsRita v.
United States, 551 U.S. 338 (2007); Kimbrough v. United States, 552 U.S. 85 (2007); Gall v. United
States, 552 U.S. 38 (2007); Spears v. United States, 129 S. Ct. 840 (2009); and Nelson
129 S. Ct. 890 (2009)which elaborated on the post-Booker sentencing regime. He maintained these
cases undercut the analytic framework of Coles, which he insisted focused excessively on the rigid
technical workings of the Guidelines, implicitly ratified the district court's presumption that the
Guidelines ranges were reasonable, and did not give primacy to the sentencing factors set forth in 18
3553(a). In light of this new case law, Tchibassa argued, re-sentencing was warranted.
The district court rejected this argument, concluding that none of the cases cited by Tchibassa
directly impacted the Coles holding. "Indeed, the D.C. Circuit applied Coles as good law ... after Rita,
Kimbrough, and Gall were decided."3 Furthermore, it noted the Rita / Kimbrough / Gall / Spears /
Nelson chain of cases were decided after the Supreme Court denied Tchibassa's petition for a writ of
certiorari, and asserted they were not applicable retroactively to his case on collateral review.
Tchibassa then claimed his trial counsel gave ineffective assistance by not objecting to the
treatment of the Guidelines as mandatory. In rejecting this claim, the district court observed it "sentenced
Tchibassa on February 27, 2004, eleven months prior to the release of the Booker decision on January 12,
It explained "[fjailure to predict a change in the law does not generally render counsel's
Tchibassa next argued his trial and appellate counsel provided ineffective assistance by failing to
Id. at 148 (citing United States v. Brown, 516 F.3d 1047 (D.C. Cir. 2008)).
Id. at 150-51.
Id. at 151 (citing United States v. Williams, 374 F. Supp. 2d 173, 175 (D. D.C. 2005)).
demonstrate how the eleven-year delay from his indictment to the start of his trial prejudiced him. The
district court rejected this argument after first noting Tchibassa's counsel filed a motion to dismiss the
indictment on speedy trial grounds, which it court rejected after conducting an evidentiary hearing. The
district court also noted the D.C. Circuit recognized the eleven-year interval was significant, but held that
the delay did not violate Tchibassa's speedy trial rights.'6 The district court concluded Tchibassa's claim
failed because he did not show his counsel's performance was either deficient or prejudiced his cause.'7
Finally, Tchibassa averred the district court ruled wrongly under Federal Rule of Evidence 404(b)
in admitting the Dietrich testimony and excluding the Lietao testimony. The district court noted the D.C.
Circuit had already denied the claim, and explained
will not be entertained on a
" [c]laims already raised and rejected on direct review
2255 motion absent extraordinary circumstances such as an intervening
change in the law."8 The district court found no extraordinary circumstances and concluded
Tchibassa's claim was procedurally barred.
2241 petition, Tchibassa renews two old claims and asserts one new claim. First, he once
again posits an entitlement to re-sentencing. He contends the Court wrongly sentenced him under the
mandatory Guidelines regime, which the Supreme Court later deemed unconstitutional in Booker. In
support of his claim, he cites the same Supreme Court's line of decisionsRita / Kimbrough / Gall!
Spears / Nelsonwhich elaborated on the post-Booker sentencing regime. Second, he once again
maintains the government violated his Sixth Amendment right to a speedy trial by waiting eleven years to
452 F.3d at 922-27.
Tchibassa, 646 F. Supp. 2d at 151.
Id. at 153 (quoting United States v. Stover, 576 F. Supp. 2d 134, 141 (D. D.C. 2008) (citations
arrest and prosecute him. Finally, he invokes the strictissimijuris standard to proclaim his actual
innocence. He opines the FLEC had both legal and illegal aims. He declares "he was engaged as
Foreign Affairs Secretary for F.L.E.C., only in lawful advocacy to procure the release of Brent Swan,
rather than conspiracy to commit
In this context, the strictissimijuris standard would require a court to judge a defendant's intent in
the strictest manner. The standard arose from the Supreme Court's decisions in United States
367 U.S. 203 (1961), and United States v. Noto, 367 U.S. 290 (1961). These cases involved prosecutions
for alleged violations of the Smith Act.2° The Smith Act proscribed, among other things, knowing
membership in an organization which advocated the overthrow of the United States Government by force
or violence.2' The petitioners were both members of the Communist Party. They challenged the
sufficiency of the evidence that the Communist Party, at the time of their membership, advocated the
overthrow of the United States Government.22 The Supreme Court also addressed the requirement that
petitioners have a "personal criminal purpose to bring about the overthrow of the Government by force
In Scales, the Court noted, "a ... blanket prohibition of association with a group having both legal
and illegal aims" would present "a real danger that legitimate political expression or association would be
18 U.S.C. § 2385 (2012).
Scales, 367 U.S. at 205.
Id. at 230; Noto, 367 U.S. at 291.
Noto, 367 U.S. at 299.
Instead, "[t]here must be clear proof that a defendant 'specifically intend(s) to accomplish
(the aims of the organization) by resort to violence."25 In Noto, the Court said, specific intent "must be
judged strictissimijuris" to avoid punishment for mere association with the legitimate aims of an
"Courts use strictissimijuris only under very special circumstances."27 In United States v.
Dellinger, the Seventh Circuit explained:
When group activity out of which the alleged offense develops can be
described as a bifarious undertaking, involving both legal and illegal
purposes and conduct, and is within the shadow of the first amendment, the
factual issue as to the alleged criminal intent must be judged strictissimi
juris. This is necessary to avoid punishing one who participates in such an
undertaking and is in sympathy with its legitimate aims, but does not intend
to accomplish them by unlawful means. Specially meticulous inquiry into
the sufficiency of proof is justified and required because of the real
possibility in considering group activity, characteristic of political or social
movements, of an unfair imputation of the intents or acts of some
participants to all others.28
As the Court noted above, Tchibassa was not prosecuted for his membership in FLEC, he was
prosecuted on one count of conspiracy to commit hostage-taking and one count of hostage-taking. The
evidence showed Tchibassa acted as the FLEC's foreign minister and chief spokesman during
Scales, 367 U.S. at 229.
Id. (quoting Noto, 367 U.S. at 299).
Noto, 367 U.S. at 299-300; see also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 920 (1982)
("For liability to be imposed by reason of association alone, it is necessary to establish that the group itself
possessed unlawful goals and that the individual held a specific intent to further those illegal aims.").
United States v. Sanders, 211 F.3d 711, 722 (2d Cir. 2000) (quoting United States v. Montour, 944 F.2d
1019, 1024 (2d Cir.1991)).
472 F.2d 340, 392 (7th Cir. 1972).
negotiations for hostage Swan's releaseafter his kidnaping by FLEC's armed forceswith
representatives of Swan's employer, Chevron. After completing the negotiations, Tchibassa signed the
receipt for a ransom in goods given by Chevron to FLEC in exchange for Swan's release. The evidence
does not support a conclusion that Tchibassa's intent was to support only FLEC's legal aims. On the
contrary, it shows Tchibassa's intent was to support FLEC's illegal aim of kidnaping foreign nationals for
the purpose of exchanging them for goods.
As a preliminary matter, the court must determine whether a claim is properly raised in a
petition. "If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled
to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the
"A section 2241 petition for habeas corpus on behalf of a sentenced prisoner attacks the manner in
which his sentence is carried out or the prison authorities' determination of its duration."3° To prevail, a
§ 2241 petitioner must show that he is "in custody in violation of the Constitution or laws or treaties of the
United States."31 A § 2241 petitioner may make this attack only in the district court with jurisdiction over
By contrast, a motion to vacate or correct a sentence pursuant to 28 U.S.C. § 2255 "provides the
28 U.S.C. foil. § 2254 R. 4; see R.
("The district court may apply any or all of these rules to a habeas
corpus petition ...").
218 F.3d 448, 451(5th Cir. 2000) (citations omitted).
' 28 U.S.C. 224 1(c)
Cleto, 956 F.2d 83, 84 (5th Cir. 1992).
primary means of collateral attack on a federal sentence."33 Thus, relief under § 2255 is warranted for
errors that occurred at trial or sentencing.34 A § 2255 petitioner may only bring his motion in the district
of conviction and sentence.35
Section 2255 does contain a "savings clause" which acts as a limited exception to these general
rules. It provides that a court may entertain a petition for writ of habeas corpus challenging a federal
criminal conviction if it concludes that filing a motion to vacate, set aside or correct sentence pursuant to §
2255 is inadequate to challenge a prisoner's detention.36 A petitioner must satisf' a two-prong test before
he may invoke the "savings clause" to address errors occurring at trial or sentencing in a petition filed
pursuant to § 2241:
[T]he savings clause of § 2255 applies to a claim (i) that is based on a
retroactively applicable Supreme Court decision which establishes that the
petitioner may have been convicted of a nonexistent offense and (ii) that
was foreclosed by circuit law at the time when the claim should have been
raised in the petitioner's trial, appeal, or first § 2255 motion.37
Pack, 218 F.3d at 451 (quoting Cox v. Warden, 911 F.2d 1111, 1113 (5th Cir. 1990)).
See Cox, 911 F.2d at 1114 (5th Cir. 1990) ("The district court's dismissal of these grounds clearly was
proper because they concerned alleged errors that occurred at sentencing and, therefore, may be remedied
under section 2255."); Ojo v. INS, 106 F.3d 680, 683 (5th Cir. 1997) ("Because all of the errors Ojo alleges
[occurred before or during sentencing], they must be addressed in a § 2255 petition, and the only court
with jurisdiction to hear that is the court that sentenced him."); Solsona v. Warden, F.C.I., 821 F.2d 1129,
1131(5th Cir. 1987) (explaining that, because defendant's claims attacked the constitutionality of his
conviction and proof of his claims would undermine the validity of his conviction, his exclusive initial
remedy was a motion under 2255).
Pack, 218 F.3d at 452.
See 28 U.S.C. 2255(e) ("An application for a writ of habeas corpus in behalf of a prisoner who is
authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that
the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court
has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test
the legality of his detention.") (emphasis added).
Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
A petitioner must prove both prongs to successfully invoke the savings clause.38 Thus, § 2241 is not a
mere substitute for § 2255, and a petitioner bears the burden of showing the § 2255 remedy is inadequate
With these principles in mind, the Court turns to Petitioner's claims.
In his § 2241 petition, Tchibassa contends the Court wrongly sentenced him under the mandatory
Guidelines regime, maintains the eleven-year delay from his indictment to the start of his trial violated his
speedy trial rights, and invokes the strictissimijuris standard to proclaim his actual innocence. Tchibassa
may proceed with an attack on the validity of his sentence under § 2241 only if he can meet both prongs of
the stringent test for the § 2255(e) "savings
The first prong of the test is, essentially, an actual innocence requirement. The "core idea is that
the petitioner may be have been imprisoned for conduct which was not prohibited by law."41 To meet the
first prong, a petitioner must rely on a retroactively applicable Supreme Court decision which establishes
that he may have been convicted of a nonexistent offense.42 In this case, the Supreme Court decided all
of the cases Tchibassa cites to support his three claims before he filed his § 2255 motion. With regard to
his first two claimsthe Court wrongly sentenced him under the mandatory Guidelines regime and the
Pad/ha v. United States, 416 F.3d 424, 426 (5th Cir. 2005).
Reyes-Requena, 243 F.3d at 901 (citing Pack, 218 F.3d at 452; Kinder v. Purdy, 222 F.3d 209, 214 (5th
Kinder, 222 F.3d at 212.
Reyes-Requena, 243 F.3d at 903.
Id at 904.
eleven-year delay from his indictment to the start of his trial violated his speedy trial rightsthe district
court determined they were not applicable retroactively to his case on collateral review.43 With regard to
his third claimthe Court should apply a strictissimi juris
standardthe Supreme Court discussed this
standard in two cases decided in 1991. Tchibassa could have raised this third issue at trial, on appeal, and
in his § 2255 motion. Thus, Tchibassa has not identified a retroactively applicable Supreme Court
decision which establishes he may have been convicted of a nonexistent offense.
The second prong of the test is a foreclosure requirement. The petitioner must show his claims
were foreclosed by circuit law when he could have raised them at trial, on appeal, or in a
In this case, Tchibassa raisedand the district and appellate courts rejectedhis first two claims.
Tchibassa fails to identify any subsequent change in the law retroactively applicable to his case which
would have changed this outcome. His first two claims were not foreclosed when he raised them in his
direct appeal and in his § 2255 motion. Furthermore, Tchibassa could have raisedand the courts could
have consideredhis third claim at trial, on appeal, or in a
2255 motion. His third claim was not
foreclosed at the time he could have raised it.
Since Tchibassa's claims do not meet the stringent requirements of the savings clause, the Court
will not allow him to proceed pursuant to § 2241.
CONCLUSION AND ORDERS
As explained above, § 2241 does not provide authority for the Court to address Tchibassa's claims.
The Court will, therefore, dismiss his § 2241 petition as frivolous. To the extent his petition may be
construed as a second or successive § 2255 motion, the Court will dismiss it for lack of jurisdiction.44
646 F. Supp. 2d at 147.
Ojo, 106 F.3d at 683.
Tchibassa may, however, ask the D.C. Circuit to certify his petition as a second or successive § 2255
motion, as provided in 28 U.S.C. § 2244. The Court accordingly enters the following orders:
IT IS ORDERED that Artur Tchibassa's pro se "Petition for Writ of Habeas Corpus Pursuant to
28 U.S.C. Section 2241 under 2255(e) Savings Clause" (ECF No. 1) is DISMISSED WITHOUT
IT IS FURTHER ORDERED that all pending motions in this cause, if any, are DENIED AS
IT IS ALSO ORDERED that to the extent Artur Tchibassa's § 224 ipetition is construed as a
successive § 2255 motion, he is denied a CERTIFICATE OF APPEALABILITY.45
IT IS FINALLY ORDERED that the Clerk shall CLOSE this case.
day of October, 2017.
FRANK MONTA VO
UNITED STATES DISTRICT JUDGE
See 28 U.S.C. foil. § 2255 R. 11(a) ("The district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.").
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