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United States v. Worku

United States District Court, D. Colorado

September 11, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
KEFELEGNE ALEMU WORKU, Defendant-Movant. Criminal 12-cr-00346-JLK-1

          ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY (ECF NO. 170)

          JOHN L. KANE SENIOR U.S. DISTRICT JUDGE

         Defendant Kefelegne Alemu Worku (Worku) moves to have his sentence vacated, set aside, or corrected pursuant to 28 U.S.C. § 2255. A number of Worku's arguments-particularly those urging me to reverse a court of appeals decision-are disconcerting, but of even greater concern is Worku's inept citation to sources throughout his filings. Many of his citations are inaccurate and clearly distinguishable to the point that they are misleading. In the end, such distortions of sources and the record fail to persuade. I deny the Motion.[1]

         A motion pursuant to 28 U.S.C. § 2255 attacks the legality of detention and must be filed with the court that imposed the sentence. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996).

         A defendant may assert “the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255. Worku alleges his 22-year sentence for identity theft and immigration fraud violates the Double Jeopardy and Due Process Clauses of the Fifth Amendment to the U.S. Constitution and his right to effective assistance of counsel under the Sixth Amendment.

         Specifically, Worku's § 2255 Motion asserts three grounds for relief: (1) by shifting the burden of proof to Worku, the Tenth Circuit improperly upheld his conviction which would have otherwise been invalidated on double jeopardy grounds; (2) the Tenth Circuit used a new standard in upholding the constitutionality of the photo array identifications, violating Worku's due process rights; and (3) his attorney provided ineffective assistance of counsel. His first two claims are not cognizable in a habeas corpus proceeding as they petition a district court to reverse a federal court of appeals. And the third, a demonstration of the maxim that no good deed goes unpunished, is meritless. To illustrate the fallacies underlying Worku's positions, some background information is necessary.

         I. Background[2]

         In Ethiopia in the late 1970s, Defendant Kefelegne Alemu Worku tortured political prisoners, including children, while acting as a guard at a makeshift prison known as Higher 15. At that time, Ethiopia was in turmoil; monarchal rule had ended and a military regime, known as the Derg, had come to power. Matthew J. McCracken, Abusing Self-Determination and Democracy: How the TPLF is Looting Ethiopia, 36 Case W. Res. J. Int'l L. 183, 190 (2004). The chief opposition group of the Derg, the Ethiopian People's Revolutionary Party (EPRP), “launched systematic attacks designed to undermine the military rule of the Derg.” Id. at 191. In response, the Derg pursued a two-year campaign known as the Red Terror, in which countless individuals deemed threats to the government or suspected of supporting the EPRP were killed or disappeared. Id.

         In 1992, after the Derg was overthrown, Worku fled to Kenya. He was tried in absentia in Ethiopia and convicted by the resurgent government of the murder of at least 70 people. While in Kenya, Worku was put into contact with the children of Habteab Berhe Temanu who sought to immigrate to the United States and needed a stand-in for their father who was too ill to participate in the immigration process. Worku falsely assumed the identity of Mr. Temanu and immigrated to the United States with the children. They settled in Denver.

         Then, in order to obtain a Permanent Resident Card from U.S. Citizenship and Immigration Services, Worku represented on an Application to Register Permanent Residence or Adjust Status, Form I-485, that he was Habteab Berhe Temanu. Almost three years later, he filed an Application for Naturalization, Form N-400, in which he again made false representations, including that he was Habteab Berhe Temanu and that he had never persecuted any person because of political opinion or membership in a particular social group. He was issued a Permanent Resident Card and then a Certificate of Naturalization on the basis of those false Applications.

         Worku covertly lived in Denver for years until a witness of his torture discovered him. Kiflu Ketema, a former prisoner of Higher 15, heard through his brother that one of the guards from the prison was in Denver. At first, Mr. Ketema did not believe his brother, but then, he recognized Worku smoking outside a bar where his brother believed he had seen him. Mr. Ketema reported the information about Worku's identity and history to U.S. Department of Homeland Security Immigration and Customs Enforcement, and Special Agent Jeffrey Lembke promptly began investigating.

         Special Agent Lembke created a photo array containing Worku's photo from his immigration file and five other photographs of Ethiopian males similar in age to Worku. This array was presented at separate times and places to Mr. Ketema and three other individuals who were imprisoned at Higher 15-Berhan Dargie, Nesibu Sibhat, and Abebech Demissie. Each of these individuals independently identified Worku as Kefelegne Alemu, one of the men who was responsible for the torture of prisoners at Higher 15. Assayehgen Feleke, a fifth prisoner of Higher 15, was shown an array with six additional photos, 12 in total, and also identified Worku.

         Months after he was arrested, Worku notified the court that he wished to plead guilty to procurement of citizenship in violation of 18 U.S.C. § 1425 and fraud and misuse of immigration documents in violation of 18 U.S.C. § 1546. It seemed he mistakenly believed that doing so could prevent witnesses from testifying against him and exposing his past in Ethiopia. Since the prosecutor had already advised that she would present testimony at the time of sentencing, see Notice of Intent to Present Testimonial Evid., ECF No. 37, I informed Worku that witnesses would be permitted to testify at sentencing even if he chose to plead guilty and forgo a trial. Worku consequently decided to proceed with the trial instead of pleading guilty.

         During the trial, three of the Temanu children identified Worku as the man who immigrated with them using their father's name. In addition, each of the five witnesses who had been imprisoned at Higher 15 and had picked Worku out of the photo arrays gave heartrending testimony and identified Worku with complete certainty. The relevant testimony of the Higher 15 witnesses is as follows.

         • Berhan Dargie, now an attorney in Washington, D.C., was arrested in about January 1978 and taken to Higher 15 where he was beaten multiple times by Worku. He identified Worku as a man he saw twice a week over the almost ten months he was imprisoned and testified that he would never forget Worku's face because Worku almost killed him one night. Transcript 10/9/13 at 458:23-459:9, ECF No. 134.

         • Nesibu Sibhat was arrested along with his sister and taken to Higher 15 in about December 1977. He testified that, at age 14 over several months, he was stripped and severely beaten at the prison by a number of people, including Worku. Mr. Sibhat identified Worku by sight and by his voice and expressed no doubt about the accuracy of his identification. Transcript 10/9/13 at 483, 500-501.

         • Assayehgen Feleke was arrested in January 1978 and later transferred to the Higher 15 prison. He testified that, with Worku present, he was beaten and hot water was poured in his open wounds while he was naked and hanging upside down. Mr. Feleke confidently stated he would never forget Worku's face. Transcript 10/10/13 at 538:14-15, ECF No. 135.

         • Abebech Demissie, then a sixteen-year-old schoolgirl, was arrested near the end of 1977, and on her first night at Higher 15, stripped to her underwear and beaten by three people, one of whom she identified as Worku. Ms. Demissie testified she was beaten by Worku multiple other times over her eight months at the prison and was one hundred percent sure of his identity. Transcript 10/10/13 at 614:9-13. One night at the prison Ms. Demissie stated she would never forget was when she saw Worku shoot and kill three boys and order another prisoner to drink the blood of the others. Id. at 604:17-610:15, 635:23-636:6.

         • Remembering the exact day on which he first encountered Worku, Mr. Ketema testified that he witnessed Worku come to Higher 15 and beat and torture prisoners almost on a daily basis for many months. Mr. Ketema was one hundred percent sure of Worku's identity and stated he could pick Worku's face out of a million people. Transcript 10/8/13 at 89:6-10, ECF No. 133. Mr. Ketema further described Worku as “a big fish” at Higher 15 and the “most feared” of those in control. Id. at 64:21, 88:18-19, 89:1-2. Apart from prisoners at Higher 15, Worku was also identified by Kinfe Wolday, who had conversations with Worku while they were detained together for around seven months in the early 1980s. Wolday testified that Worku gloated saying he had been in charge of the Higher 15 prison and had killed around 150 people. Transcript 10/10/13 at 569:15-570:20.

         After hearing this testimony, the jury returned a verdict of guilty on all three counts: (1) procurement of citizenship in violation of 18 U.S.C. § 1425(a) and (b); (2) aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1); and (3) fraud and misuse of immigration documents in violation of 18 U.S.C. § 1546(a). The jury answered six special interrogatories in the affirmative, including that Worku falsely represented that he had never “persecuted (either directly or indirectly) any person because of race, religion, national origin, membership in a particular social group, or political opinion.” Verdict Form, ECF No. 110-1. I sentenced Worku based on the factors set forth in 18 U.S.C. § 3553 and not under the U.S. Sentencing Guidelines. I found the Guidelines to be inapplicable to the circumstances of the case and that the egregious nature of Worku's conduct warranted imposition of the maximum sentence for each count, a total of 22 years.

         On appeal, Worku argued that (1) his convictions under 18 U.S.C. § 1425 and § 1546 violated the Double Jeopardy Clause of the Fifth Amendment, (2) he could not be convicted under 18 U.S.C. § 1028A since his use of the identity of another was consensual, and (3) his sentence was substantively unreasonable. The Tenth Circuit Court of Appeals rejected these arguments and affirmed his convictions and sentences in a published opinion, United States v. Worku, 800 F.3d 1195 (10th Cir. 2015). The court then denied his petition for rehearing and rehearing en banc. Worku filed a petition for writ of certiorari with the Supreme Court, and it was denied on February 29, 2016. Worku's instant § 2255 motion was filed February 24, 2017 and, as stated above, raises double jeopardy, due process, and ineffective assistance of counsel claims.[3]

         II. Double Jeopardy and Due Process Claims

         Both Worku's first and second claims-that his convictions under 18 U.S.C. § 1425 and § 1546 violate the Double Jeopardy Clause and that the use of photo array identifications violated his due process rights-were presented to and disposed of by the Tenth Circuit on direct appeal. “Absent an intervening change in the law of a circuit, issues disposed of on direct appeal generally will not be considered on a collateral attack by a motion pursuant to § 2255.” United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989) (citing United States v. Nolan, 571 F.2d 528, 530 (10th Cir. 1978)). Worku nevertheless argues his double jeopardy and due process claims should not be rejected because he was not provided the opportunity for full and fair consideration of them on direct review. For authority he cites Stone v. Powell, 428 U.S. 465, 495 (1976), but that case has no bearing or relevance whatsoever to the issues here.[4] It is axiomatic that, absent an intervening change in the law, this court cannot review the Tenth Circuit's substantive rulings. It is the height of presumption to suggest that it otherwise could.[5] However, even if it could sit in review of such rulings, Worku's double jeopardy and due process claims lack merit.

         A. Double Jeopardy

         Worku argued on direct appeal and again here that his sentences under 18 U.S.C. § 1425 and § 1546 violate the Double Jeopardy Clause of the Fifth Amendment because they are based on the same conduct. He now also asserts that, in disposing of his double jeopardy claim on appeal, the Tenth Circuit subjected him to an additional violation of his Fifth Amendment rights by basing its affirmance of his conviction on his failure to testify or prove his innocence. Due to the Tenth Circuit's “improper and unconstitutional analysis, ” Worku submits that, although his double jeopardy argument was addressed on direct appeal, he is not precluded from raising it again here. Mot. at 16, ECF No. 170. I am not persuaded. Since Worku does not allege an intervening change in the law, his double jeopardy claim cannot be revisited via the instant motion.[6] See Prichard, 875 F.2d at 791 (citing Nolan, 571 F.2d at 530).

         Regardless, neither his convictions under § 1425 and § 1546 nor the Tenth Circuit's affirmance of those convictions violate his Fifth Amendment rights. The government charged Worku under § 1425 and § 1546, based on his statements on two separate immigration and naturalization forms, Form I-485 and Form N-400, completed at different times. Worku complains that the jury instructions did not distinguish the facts required to prove each count and that the jury was permitted to convict him of both counts without proof of any additional fact for either. Thus, he argues that his sentences for the convictions are for the same offense, in violation of the Double Jeopardy Clause of the Fifth Amendment. After considering this double jeopardy argument on direct appeal, the Tenth Circuit properly held that the evidence of Worku's guilt ...


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