United States District Court, D. Colorado
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)
L. KANE SENIOR U.S. DISTRICT JUDGE
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 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).
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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
Double Jeopardy and Due Process Claims
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. 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. However, even if it could sit in review of
such rulings, Worku's double jeopardy and due process
claims lack merit.
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. See
Prichard, 875 F.2d at 791 (citing Nolan, 571
F.2d at 530).
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 ...