UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

Crim. No. 91-cr-560-3 (TFH)
vs.

ARTUR TCHIBASSA,

Defendant.

\/\/\/\/§/\_/§/\./\./\y

Memorandum Opinion

Pending before the Court are (i) Mr. Tchibassa’s FRCP 60(b) Motion for Relief (the "R_ul_e__6_0_
10 from the Court’s August 2l, 2009 judgment denying his motion under 18 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence (the "Habeas Motion") as expounded by a supplemental
habeas brief filed on his behalf under the Inmate Legal Assistance Proj ect (the "Supplemental Habeas
l"); (ii) the Govemment’s Motion to Transfer the Rule 60 Motion (the "Motion to Transfer");
(iii) Mr. Tchibassa’s Motion to Strike the Govemment`s Motion to Transfer (the "l\/Iotion to Strike");
and (iv) Mr. Tchibassa`s Motion for a Certificate of Appealability of the Court’s denial of his habeas
motion (the "COA Motion"). After a careful review of the record of the case, the motions and the
oppositions thereto, the Court will deny the COA Motion and the Motion to Strike, and grant the

Motion to Transfer.

I. Background

Mr. Tchibassa was indicted in l99l for one count of hostage-taking and one count of
conspiracy to commit hostage-taking related to events in his native Angola. Arrested in 2002 in the
Democratic Republic of the Congo, he went to trial in September 2003, where a jury found him guilty
of both counts in the indictment. The Court sentenced him to concurrent sentences of 60 months for
the conspiracy and 293 months for the hostage-taking.

The D.C. Circuit affirmed Mr. Tchibassa’s conviction on July 7, 2006. See United States v.
Tchibassa, 452 F.3d 918 (D.C. Cir. 2006). Specifically, the circuit ruled that (l) this Court’s
treatment of the United States Sentencing Guidelines ("Guidelines") as mandatory when sentencing
Tchibassa did not prejudice him; (2) the eleven-year delay between Mr. Tchibassa`s indictment and
arrest did not violate his right to a speedy trial; and (3) the alleged errors in this Court’s admission of
testimony from witness Piotr Dietrich and exclusion of proposed testimony from witness Martins
Leitao were harmless and therefore not cognizable. Id. at 922-30.

Mr. Tchibassa filed his Habeas Motion on March 2l, 2008. Students from the Indiana
University Maurer School of Law further supplemented this motion with the eighteen-page
Supplemental Habeas Motion on March 20, 2009. The Habeas Motion contained the following claim

("Ground Four"):

12_ Stale concisely every ground on which you claim thalyou are being held in violation oflhe
conslimlion, laws or treaties of the United Slates. Sumnzarize briefly thefacts supporting each

ground 

D. Grouna’four: Movant’s Sixth Amendment rights were violated by his sentencing under the

mandatory guidelines scheme.

 

Supporting FACTS (state briefly without citing cas'es' or lam).'

Intervening change in law would have let Movant present evidence to the judge of relevant
sentencing factors such as, inter alia, Movant`s health, family, responsibility, age, disparity,
etc., per 18 U.S.C. § 3553A, potentially resulting in a lower sentence Fuithermore, the judge
engaged in unconstitutional fact-finding under the mandatory guidelines scheme, violating

Movant`s right to trial by jury.

13. lt any oft/le grounds listed in l2A, B, C, and D were not previously presented, state briefly

what grounds were not so presented and give your reasonfor not presenting them.'

Ground 4 was presented below but new facts and argument listed are due to intervening

change in law. Additionally, counsel was ineffective for failing to raise the fact-finding claim.

On August 21, 2009 the Court denied the Habeas Motion, finding that it largely rehashed the
issues on appeal. In relevant part, the opinion denied the two claims that (l) "the Court’s treatment
of the Guidelines as mandatory must now be deemed a Sixth Amendment violation in light of
subsequent Supreme C ourt decisions” and (2) "trial counsel have ineffective assistance by not
objecting to treatment ofthe Guidelines as mandatory during sentencing." Mem. Op. at 2 (Aug, 21,
2009).

Mr. Tchibassa filed this Rule 60 Motion two months later on October 21 , 2009. He claims
that the Court misread the Habeas Motion to be re-arguing the constitutional claim he raised based on
United States v. Booker, 543 U.S. 220 (2005) on appeal (i.e, that the Court’s treatment of the
Guidelines as mandatory prejudiced him), when he really meant to argue that the Court just failed to

properly consider the sentencing factors enumerated in 18 U.S.C. § 3553(a) (the "3553 Factors") and

ineffective assistance of counsel related to that failure. The Govemment argues in its Motion to

 

Transfer that this 3553 Factor argument is a new habeas claim, and thus the court of appeals must
certify the filing. Mr. Tchibassa filed his Motion to Strike the Motion to Transfer on October 7,

2010.

II. Analysis
a. The Rule 60 Motion

The main holding in Booker_i.e. that courts must treat the Guidelines as advisory rather than
mandatory_rested on constitutional, Sixth Amendment grounds. In contrast, "[a] district court's
failure to consider [3553 Factors] . . . is a species of . . . non-constitutional (statutory) [Booker]
error." United States v. Simpson, 430 F.3d 1177, 1 183 (D.C. Cir. 2005). "[J]udges have been
required to consider [3553 Factors] in determining the particular sentence to be imposed . . . since the
enactment of the Sentencing Reform Act of 1984." Id. at 1 186 (internal quotations and citations
omitted).

The premise of Mr. Tchibassa’s argument is that he understood the difference between these
two types of Booker error upon filing his Habeas Motion. Mr. Tchibassa also admits that his
"inartful" pro se drafting led the Court to believe that he was arguing the constitutional Booker issue.
However, he asks the Court to give him the benefit of the doubt in light of the rule that courts should
construe pro se motions liberally. See Second Amendment Found. v. U.S. Conference ofMayors, 274

F. 3d 521, 523 (D.C. Cir. 2001). The Court, however, finds that Mr. Tchibassa’s Habeas Motion and

Supplemental Habeas Motion clearly argued the constitutional Booker issue.

 

Mr Tchibassa mentioned the 3553 Factors in three places that approach a statement of the

claim he now tries to assert. The first instance is at page 3 of the Supplemental Habeas l\/Iotion

listing as a single ground for relief:

D. That Tchibassa’s Sixth Amendment Rights were further violated by his sentencing under
the mandatory guidelines scheme; by the Court’s failure to consider relevant sentencing
factors under 18 U.S.C. § 3553(a); and by unconstitutional judicial fact-finding.

("Ground D"). The second instance appears in the Supplemental Habeas Motion, at page 9:

There is little in the transcript of the sentencing proceedings documenting that the Court
considered the full range of § 3553(a) sentencing factors, and arrived at an independent
estimate of reasonableness using those factors, in deciding what was an appropriate sentence
for Tchibassa."

The third instance appears in the Supplemental Habeas Motion, at page 11:

The failure by sentencing judge [sic] to consider the § 3553 factors is a "significant procedural
error." Gall, 128 S. Ct. 586 (although it does not necessarily constitute the ‘Booker error’ of
treating the Guidelines as mandatory. . . . Where a trial court denies a defendant’s request to
introduce mitigating evidence, that casts doubt on whether the sentencing court understood its
obligation to consider § 3553 factors . . . . United States v. Ayers, 428 F.3d 312, 314-15 (D.C.
Cir. 205)). Ordinarily, it is presumed that [the] district court took into account all the factors,
[but] in Ayers . . . that presumption was rebutted by [the] court’s unexplained denial of [a]
request to enter additional mitigating evidence, warranting remand."

lt bears noting that because the Guidelines are one of the 3553 Factors, if a court commits the
constitutional Booker error it naturally suggests that the court may havefailed to grant the other 3553
Factors their due relative weight in a given case, Thus, courts must expect certain remarks regarding
the relative weight of 3553 F actors in the context of even a constitutional Booker argument. The
Court considers the three above instances as examples of this. They are either couched in
constitutional Booker-error terms, do not clearly state a procedural § 3553 claim, and/or in light of
the rest of the Habeas Motion and Supplemental Habeas Motion are much better construed as color

on the importance on the 3553 F actor framework in general.

lndeed, Mr. Tchibassa stated in Ground Four that his "Sixth Amendment rights were violated
by his sentencing under the mandatory guidelines scheme." (emphasis added). The Habeas Motion
further admitted that Ground F our was presented on appeal. The Supplemental Habeas Motion
asserts "Tchibassa raised this Booker issue on direct appeal.” Id. at 5; see also id. at 12 ("appellate
counsel d`;d raise the Booker issue on direct appeal") (emphasis in original). The Supplemental
Habeas Motion further asserts that Ground D is based on "the mandatory sentencing guidelines, and
ineffective assistance as it related to those guidelines". 1d_ at 4. Further, the Supplemental Habeas
Motion characterizes Ground Four as based on the treatment of the Guidelines as mandatory. 1d. at 5.
Moreover, the Supplemental Habeas Motion provides lengthy argument for why the court should
entertain the Booker claim even though it was rejected on direct appeal-i.e. intervening changes in
law. Id at 5-6. Such arguments are nonsensical unless Mr. Tchibassa was arguing a constitutional
Booker claim.

lt is true that pro se motions deserve liberal construction. Second Amendment Found., 274 F.
3d at 523. But Mr. Tchibassa`s present arguments contradict his prior habeas motions in letter and
spirit Moreover, it is important to consider that Mr. Tchibassa does not argue that he raised both the
constitutional and non-constitutional Booker errors in his habeas motions. In light of the statements
above_and many others in the habeas motions_it is simply implausible that Mr. Tchibassa was
trying to raise a pure 3553 Factor argument.

"Regardless of how a pro se prisoner styles his motion, a court must review the motion based
on its substance." United States v. Akers, 519 F. Supp. 2d 94, 95 (D.D.C. 2007) (citing Gonzalez v.
Crosby, 545 U.S. 524, 531 (2005) (holding that a court should treat a Rule 60(b) motion that presents

omitted claims of constitutional error as a successive habeas petition under 28 U.S.C. § 2254)).

"Generally, a motion pursuant to Rule 60(b) seeks a remedy for some defect in the collateral review

 

process. By contrast, an attack on a prisoner's conviction or sentence is tantamount to a § 2255
motion." Ia’. at 95-96 (intemal citations omitted). Substantively, Mr. Tchibassa’s Rule 60 Motion is
an attack on his sentencing lt is therefore a successive habeas motion under 28 U.S.C. § 2255. "A
second or successive motion must be certified as provided in section 2244 [28 USCS § 2244] by a

panel of the appropriate court of appeals." 28 U.S.C. § 2255(h). Until such certification occurrs the

Court lacks jurisdiction over Mr. Tchibassa’s motion. See, e.g., United States v. Mathis, 660 F. Supp.

2d 27, 29 (D.D.C. 2009). Thus, the Rule 60 Motion must be transferred to the D.C. Circuit to

determine whether it will be allowed.

III. The COA Motion

Mr. Tchibassa appealed the Court’s denial of his habeas motion on October 26, 2010. The
Court of Appeals held the appeal in abeyance until the District Court rules on the issue of a COA.
For all the reasons stated in the Couit’s thorough Memorandum Opinion denying the habeas motion,
the COA should be denied.

For a COA to issue Mr. Tchibassa must make "a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). This standard demands that he “demonstrate[d] that
the issues are debatable among jurists of reason; that a court could resolve the issues [in a different
manner]; or that the questions are adequate to deserve encouragement to proceed further."’ United
States v. Mitchell, 216 F.3d 1126, 1130 (D.C. Cir. 2000) (quoting Barefoot v. Estelle, 463 U.S. 880,
893 n.4 (1983) (emphasis in original)). Mr. Tchibassa has not met this burden.

The Court readily dismissed Mr. Tchibassa’s four claims for relief raised in his habeas
motions in its August 21, 2009 Memorandum Opinion, finding each completely meritless. lndeed,

the claims "largely rehashe[d]" his claims already rejected in his direct appeal. Mem. Op. at 2 (Aug.

_7_

21, 2009). Thus, Mr. Tchibassa’s claims are neither “debatable among jurists of reason" nor

deserving of"encouragement to proceed further." Mitchell, 216 F.3d at 1 130.

IV. Conclusion

For reasons state above, the Court will grant the Motion to Transfer, deny Mr. Tchibassa`s
Motion to Strike, and deny a COA regarding Mr. Tchibassa’s appeal of the August 21, 2009 denial of

his habeas motion.

An appropriate order will accompany this memorandum.

SO ORDERED.

/’
//
January 27, 2011 “ ' a /

Thomas F. Hogan
UNHED SrATEs DisrRicr J

Coi>iEs To:

ARTUR TCHIBASSA
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