Holiday v. United States

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 JUAN MARQUIS HOLIDAY, Case Nos.: 25-cv-00082-AJB;

Petitioner, 17-cr-01370-AJB

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13 v. ORDER:

1) DENYING PETITIONER’S

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UNITED STATES OF AMERICA, MOTION TO VACATE, SET ASIDE,

15 Respondent. OR CORRECT SENTENCE UNDER

28 U.S.C. § 2255;

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17 2) DENYING PETITIONER’S

MOTION TO APPOINT COUNSEL;

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AND

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3) DENYING PETITIONER’S

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MOTION FOR SANCTIONS FOR

21 FRAUD

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(Doc. Nos. 286; 287; 292)

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24 Before the Court are three motions filed by Petitioner Juan Marquis Holiday

25 (“Petitioner”): (1) Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.

26 § 2255 (“Motion to Vacate”), alleging ineffective assistance of counsel by his attorney,

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1 Douglas C. Brown (Doc. No. 287); (2) Motion to Appoint Counsel (Doc. No. 286); and

2 (3) Motion for Sanctions for Fraud Upon the Court (“Motion for Sanctions”) (Doc. No.

3 292). Respondent the United States (the “Government”) filed an opposition to the Motion

4 to Vacate (Doc. No. 290), to which Petitioner replied (Doc. No. 291). The Government

5 also filed an opposition to the Motion for Sanctions (Doc. No. 295), to which Petitioner

6 replied (Doc. No. 305). Having reviewed the parties’ briefs and all relevant filings, and for

7 the reasons set forth below, the Court DENIES Petitioner’s Motion to Vacate, Motion to

8 Appoint Counsel, and Motion for Sanctions.

9 I. BACKGROUND

10 On May 15, 2017, Petitioner was arrested and a four-count complaint was issued,

11 charging Petitioner with two counts of robbery occurring first on April 6, 2017 at Market

12 at the Ranch, and second, on April 20, 2017 at Apollo Liquor store, along with two counts

13 of carrying, brandishing, and discharging a firearm in commission of those robberies. (See

14 Doc. Nos. 1, 2, 4.) The same day, Petitioner made his initial appearance before then

15 Magistrate Judge Andrew G. Schopler, who provisionally appointed Federal Defenders to

16 represent Petitioner. (Doc. No. 5.) Two days later, Chase Scolnick appeared as counsel for

17 Petitioner. (Doc. No. 10.)

18 Over the next year, a grand jury issued an indictment and two superseding

19 indictments as to Petitioner, culminating in the twenty-count Second Superseding

20 Indictment, (Doc. No. 57). (See also Doc. Nos. 21, 27.) The Second Superseding

21 Indictment charged Petitioner with a total of ten robberies and attempted robberies

22 occurring from January 5, 2017, to April 22, 2017, along with ten counts of carrying,

23 brandishing, and discharging a firearm in commission of those robberies and attempted

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1 The instant Motions before the Court are filed in both Petitioner’s civil case and the underlying

27 criminal case. (Compare Doc. No. 1, Holiday v. United States, No. 25-cv-00082-AJB (S.D. Cal.) with

Doc. No. 287, United States v. Holiday, No. 17-cr-001370-AJB-1 (S.D. Cal.).) Hereafter, all docket entries

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1 robberies. (Doc. No. 57.) On July 13, 2018, Petitioner was arraigned on the Second

2 Superseding Indictment and pleaded not guilty. (Doc. No. 71.)

3 A five-day jury trial was held before this Court from March 3, 2020, to March 10,

4 2020. (Doc. Nos. 175, 177, 178, 180, 182.) After approximately a day of deliberations, on

5 March 11, 2020, the jury found Petitioner guilty on all Counts 1–20. (See Doc. Nos. 183,

6 184.) On June 8, 2020, Petitioner was originally sentenced to eighty-five years and ten

7 months. (Doc. No. 208.) However, on March 16, 2023, following the Supreme Court’s

8 ruling that an attempted Hobbs Act robbery does not qualify as a crime of violence as a

9 predicate for felony conviction and enhanced sentencing for using a firearm in furtherance

10 of a crime of violence, see United States v. Taylor, 596 U.S. 845 (2022), the Court amended

11 Petitioner’s sentence to sixty-four years and ten months. (Doc. No. 256.)

12 Since Petitioner’s initial arrest and appointment of counsel, Petitioner had several

13 changes in counsel. First, on July 19, 2017, attorney Linda Lopez replaced Chase Scolnick

14 as lead counsel. (Doc. No. 31.) Then, on August 9, 2017, Joshua J. Jones appeared for

15 Petitioner as co-counsel with Linda Lopez remaining as lead counsel. (Doc. No. 34.) On

16 September 25, 2018, Amrutha N. Jindal joined as co-counsel (Doc. No. 94), and one week

17 later, Joshua J. Jones assumed the role of lead counsel for Petitioner (Doc. No. 95).

18 Approximately one month later, on November 20, 2018, Petitioner made an oral request

19 for new counsel, which the Court granted. (Doc. No. 112.) The Court relieved Amrutha N.

20 Jindal and Joshua J. Jones, and appointed attorney Douglas C. Brown to represent

21 Petitioner. (Id.) Douglas C. Brown represented Petitioner for the duration of Petitioner’s

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2 The Second Superseding Indictment charged Petitioner with seven counts of robbery occurring on

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January 5, 2017, at an Arco Gas station (“Arco Station Robbery”) (Count 1), January 11, 2017, at a Perry

25 Liquor store (Count 2), Par Liquor store (Count 3), and Greene Cat Liquor store (Count 4); April 6, 2017,

at Market at the Ranch (Count 5); April 19, 2017, at a 7-Eleven (Count 6); and April 22, 2017, at Victoria’s

26 Mexican Grill (Count 10). (Doc. No. 57 at 1–3, 5.) It separately charged Petitioner with three counts of

attempted robbery occurring on April 20, 2017, at Eastridge Liquor store (Count 7), Apollo Liquor store

27 (Count 8), and G&M Market (Count 9). (Id. at 4–5.) The remaining charges were for knowingly using,

carrying, and brandishing a firearm in conjunction with the robberies and attempted robberies (Counts 11,

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1 trial.

2 On January 13, 2025, Petitioner timely filed the instant § 2255 habeas Motion to

3 Vacate, (Doc. No. 287), and Motion to Appoint Counsel, (Doc. No. 286). On April 2, 2025,

4 Petitioner filed the instant Motion for Sanctions. (Doc. No. 292.)

5 II. MOTION TO VACATE PURSUANT TO 28 U.S.C. § 2255

6 A. Legal Standard

7 A federal prisoner in custody under a sentence of a court may move to vacate, set

8 aside, or correct the sentence “upon the ground that the sentence was imposed in violation

9 of the Constitution or laws of the United States, or that the court was without jurisdiction

10 to impose such sentence, or that the sentence was in excess of the maximum authorized by

11 law, or is otherwise subject to collateral attack[.]” 28 U.S.C. § 2255(a). To warrant relief

12 under § 2255, a prisoner must allege a constitutional, jurisdictional, or otherwise

13 “fundamental defect which inherently results in a complete miscarriage of justice [or] an

14 omission inconsistent with the rudimentary demands of fair procedure.” United States v.

15 Timmreck, 441 U.S. 780, 783 (1979). If it is clear a petitioner has failed to state a claim, or

16 has “no more than conclusory allegations, unsupported by facts and refuted by the record,”

17 a district court may deny a § 2255 motion without an evidentiary hearing. United States v.

18 Quan, 789 F.2d 711, 715 (9th Cir. 1986).

19 B. Petitioner’s Ineffective Assistance of Counsel Claims

20 In the Motion to Vacate, Petitioner asserts five claims, all alleging violations of his

21 Sixth Amendment right to effective assistance of counsel. (Doc. No. 287 at 4–13; Doc. No.

22 287-1 at 4–11.) The claims center around Mr. Brown’s alleged failure to: (1) rebut the

23 chain of custody of DNA evidence recovered near the scene of the January 5, 2017, Arco

24 Station Robbery (Ground 1); (2) object to the special verdict forms (Ground 2); (3) argue

25 that Petitioner’s youth be considered in sentencing (Ground 3); (4) poll the jury to ensure

26 the special verdicts were unanimous (Ground 4); and (5) present testimony of an alibi

27 witness (Ground 5). (Doc. No. 287-1 at 4–11.)

28 “The Sixth Amendment right to counsel is the right to the effective assistance of

1 counsel, and the benchmark for judging any claim of ineffectiveness must be whether

2 counsel’s conduct so undermined the proper functioning of the adversarial process that the

3 trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. 668, 669

4 (1984). To prevail on a claim of ineffective assistance of counsel, a petitioner must satisfy

5 a two-part test outlined in Strickland. The Petitioner must show that (1) counsel’s

6 representation was deficient such that it “fell below an objective standard of

7 reasonableness,” and (2) counsel’s deficient performance prejudiced the petitioner such

8 that “there is a reasonable probability that, but for counsel’s unprofessional errors, the

9 result of the proceeding would have been different.” Id. at 687–88, 694.

10 The first prong of the Strickland test requires a showing that “counsel made errors

11 so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by

12 the Sixth Amendment.” Id. at 687. “The reasonableness of counsel’s performance is to be

13 evaluated from counsel’s perspective at the time of the alleged error and in light of all the

14 circumstances, and the standard of review is highly deferential.” Kimmelman v. Morrison,

15 477 U.S. 365, 381 (1986); see also Strickland, 466 U.S. at 689 (noting there is “a strong

16 presumption that counsel’s conduct falls within the wide range of reasonable professional

17 assistance”).

18 The second prong requires a showing “that there is a reasonable probability that, but

19 for counsel’s unprofessional errors, the result of the proceeding would have been

20 different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient

21 to undermine confidence in the outcome.” Id. Unless the petitioner can make a showing for

22 both Strickland prongs, “it cannot be said that the conviction . . . resulted from a breakdown

23 in the adversary process[.]” Id. at 687.

24 1. Alleged Failure to Challenge Chain of Custody of DNA Evidence (Ground

25 1)

26 Petitioner argues his trial counsel was deficient in failing to adequately challenge the

27 “vague” chain of custody of DNA evidence collected on January 5, 2017, “outside the

28 scene of one of the robberies, an Arco gas station, in the very neighborhood where

1 [Petitioner] lived.” (Doc. No. 287-1 at 4.) Petitioner asserts that “it was obvious the chain

2 of custody between the officer that discovered [the DNA evidence],” Officer Kyle Rack,

3 and the officer who retrieved the DNA evidence, Officer Salvador Torres, “had not been

4 established or maintained,” and that Officer Torres “did not testify at trial.” (Doc. No. 287-

5 1 at 5.) Petitioner also takes issue that Office Torres “does not appear in any of the chain

6 of custody documents[.]” (Id.) In response, the Government asserts that it established a

7 proper chain of custody, cites to the trial transcript where Office Torres did in fact testify

8 at trial, (Doc. No. 290 at 14 (citing Doc. No. 191 at 63–72)), notes that Petitioner’s counsel

9 cross-examined all four of the prosecution’s witnesses related to the discovery, collection,

10 and verification of the DNA evidence, and raises that Petitioner does not challenge the

11 authenticity of the DNA evidence. (Doc. No. 290 at 14.)

12 The Government established a clear chain of custody of the DNA evidence. First,

13 Officer Rack’s testimony at Petitioner’s trial reveals that he discovered a black plastic bag

14 near the site of the Arco Station Robbery, secured the scene, and notified the case agent,

15 Officer Torres, of the bag. (Doc. No. 191 at 28:16-23, 30:16-20, 31:6-7, 35:7-6.)

16 Petitioner’s attorney, Mr. Brown, cross-examined Officer Rack at Petitioner’s trial. (Id. at

17 35.) Second, on March 4, 2020, contrary to Petitioner’s allegations, Officer Torres testified

18 at trial that Officer Rack notified him of the secured bag, so Officer Torres, while wearing

19 gloves so as not to contaminate any evidence, collected and impounded the evidence

20 containing the DNA. (Id. at 68:14–69:19.) Petitioner’s attorney also cross-examined

21 Officer Torres. (Id. at 69.) Third, a crime scene specialist, Ms. Ally Southerland, testified

22 regarding the anti-contamination procedures and techniques she employed to process the

23 DNA sample found on the secured plastic bag. (Id. at 38–39.) Petitioner’s attorney cross-

24 examined Ms. Southerland. (Id. at 40.) Finally, criminalist Tess Hemmerling, a DNA

25 expert, testified regarding the quality control measures she took in analyzing the DNA

26 sample to prevent contamination and ensure the accuracy of her findings. (Id. at 54.) Mr.

27 Brown then cross-examined Ms. Hemmerling. (Id. at 57.) In sum, the record establishes

28 the chain of custody of the DNA evidence on the plastic bag discovered by Officer Rack,

1 collected by Officer Torres, and examined by Ms. Southerland and Ms. Hemmerling. (See

2 generally Doc. No. 191.) Petitioner does not dispute the authenticity or accuracy of the

3 DNA evidence, (see Doc. No.287-1), which established Petitioner’s DNA was on the

4 plastic bag, and the weight of the evidence was evaluated by the jury in their determinations

5 with regard to Count 1.

6 Furthermore, Petitioner fails the second part of the Strickland test as he provides no

7 evidence that any additional objection by his counsel to the chain of custody would have

8 led to a different outcome. The individuals involved in the collection of the evidence and

9 its impoundment took the stand, testified with regard to the handling of the evidence, and

10 were cross-examined by Petitioner’s counsel. (See Doc. No. 191.) Without any evidence

11 demonstrating that further challenge would have led to an alternative outcome, Petitioner’s

12 claim fails to meet the Strickland test. Strickland, 466 U.S. at 687–88, 694.

13 Accordingly, the Court DENIES the instant Motion with respect to allegations Mr.

14 Brown deficiently challenged the chain of custody of DNA evidence found at the scene of

15 the January 5, 2017, Arco Station Robbery.

16 2. Alleged Failure to Object to Special Verdict Forms (Ground 2)

17 Petitioner next asserts Mr. Brown was ineffective for failing to object to the

18 formatting of the verdict forms. (Doc. No. 287-1 at 7.) Petitioner claims that the verdict

19 forms were “manipulated in such way as to give the impression to the [j]ury that if they

20 found [P]etitioner guilty of the overhead [robbery] count, they had to find [P]etitioner

21 [guilty] of the underlying special verdict[,]” or associated firearms count. (Id.) Relatedly,

22 Petitioner states that his counsel “failed to object to [the] [C]ourt not giving the Jury an

23 instruction to complete the special verdict, only if they found [P]etitioner guilty of the

24 general verdicts.” (Id. at 8.) Finally, Petitioner argues that in the verdict forms, the

25 Government “re-arranged the order of the counts and listed them out of chronological

26 order,” which Petitioner claims is “linked to constructive amending.” (Id. at 7.)

27 The Court addresses Petitioner’s challenges in turn. First, Petitioner presents no

28 evidence that the verdict forms misled the jury beyond his own speculation. As the

1 Government asserts, to the extent the jury was confused by the verdict forms, they could

2 have asked the Court for clarification, but the jury declined to do so. (Doc. No. 290 at 16.)

3 Additionally, the verdict forms are clear on their face as to what the appropriate inquiry is

4 for each of the complex charges brought in the case. (See Doc. No. 184.) For example, for

5 each underlying count, the jury was given the option of finding Petitioner “Guilty” or “Not

6 Guilty,” (see id. at 1–2), and each special verdict begins with, “If the jury finds the

7 defendant guilty of [the respective Count], answer the following [special verdict] questions

8 . . . .” (See Doc. No. 184 at 2–10.) Accordingly, because the verdict forms are clear, and

9 Petitioner fails to present any evidence of jury confusion regarding the verdict forms, or

10 any errors in the forms themselves, the Court rejects Petitioner’s claim that his counsel was

11 deficient for failing to object to the verdict forms. See James v. Borg, 24 F.3d 20, 26 (9th

12 Cir. 1994) (“Conclusory allegations which are not supported by a statement of specific

13 facts do not warrant habeas relief.”)

14 Second, as the Government argues, Petitioner’s constructive amendment claim is

15 misplaced. (See Doc. No. 290 at 16.) “A constructive amendment occurs when the charge

16 the jury considers is so altered as to charge a different offense from that found in the

17 indictment.” United States v. Corrales-Quintero, 171 F. App’x 33, 35 (9th Cir. 2006). To

18 assess “whether the special verdict form constituted a constructive amendment of the

19 indictment,” the Court “look[s] to both the special verdict form and the accompanying jury

20 instructions to determine if the jurors were instructed to convict [Petitioner] of the same

21 [crime] that was charged in the original indictment.” Id. Here, the analysis is simple. There

22 were no changes to the charges and the special verdict forms aligned with the charging

23 document at the time of trial. (Compare Doc. No. 57 with Doc. No. 184.) Without any

24 specific facts or support to demonstrate constructive amendment, all Petitioner relies on is

25 speculation, which is insufficient to merit relief. See Borg, 24 F.3d at 26.

26 Accordingly, the Court DENIES the instant Motion with regard to Petitioner’s

27 allegations that Mr. Brown deficiently challenged the special verdict forms.

28 / / /

1 3. Alleged Failure to Consider Petitioner’s Youth in Sentencing (Ground 3)

2 In Petitioner’s third claim of ineffective assistance of counsel, Petitioner argues his

3 counsel was ineffective for failing to raise Petitioner’s youth as a mitigating factor in

4 sentencing. (Doc. No. 287-1 at 8–9.) Petitioner further alleges, “[t]he record is devoid of

5 any indication that the [P]etitioner’s age at the time of offense was considered at

6 sentencing.” (Id. at 9.) Petitioner states he was twenty-five years old when the offenses

7 occurred. (Id. at 8.)

8 Petitioner’s argument lacks merit. First, the Court sentenced Petitioner to the

9 mandatory minimum sentence for each of the charges, so any additional mitigating factors

10 could not have lowered his sentence. (See Doc. Nos. 256; 264 at 7–13.) Additionally,

11 Petitioner’s age was well-known to the Court, to counsel, and to the United States

12 Probation Office, and was set forth in Petitioner’s Presentence Investigation Report

13 (“PSR”). (Doc. No. 194.) Petitioner presents no basis to demonstrate that the Court failed

14 to consider the PSR, and to the contrary, Petitioner’s counsel’s receipt and review of the

15 PSR with Petitioner was discussed at the sentencing hearing. (Doc. No. 254.) Finally, even

16 if Petitioner’s sentence could be further mitigated, which it cannot be, Petitioner was an

17 adult at age twenty-five at the time of the offenses, so he would not be eligible for a

18 decreased sentence based on age. See Miller v. Alabama, 567 U.S. 460, 471 (2012)

19 (“children are constitutionally different from adults for purposes of sentencing[.]”)

20 The cases Petitioner cites in support of his argument that “it is now commonly

21 accepted that youth at the time of offense should be considered at sentencing,” (Doc. No.

22 287-1 at 8), either involve juvenile defendants or are inapposite. See e.g., United States v.

23 Briones, 18 F.4th 1170, 1171, 1174 (9th Cir. 2021) (district judge considered that defendant

24 was seventeen years old at time of offense); Khalifa v. Cash, 594 F. App’x 339, 345 (9th

25 Cir. 2014) (dissenting opinion advocating that defendant’s fifteen-year-old age and minor

26 involvement in the crime “should have been considered” in sentencing); see also United

27 States v. Gonzales, 981 F3d. 11 (1st Cir. 2020) (declining to extend Miller beyond

28 protection of juvenile offenders and finding discretionary sentence of life without parole

1 for twenty-year old offender did not violate the Eighth Amendment). Again, because

2 Petitioner was twenty-five years old at the time of the offenses, and not a minor, the law

3 does not support additional consideration of Petitioner’s age at sentencing. Because the

4 Court does not find Mr. Brown’s performance deficient and Petitioner was not prejudiced

5 by an omission to further raise Petitioner’s age, Petitioner’s claim fails the first and second

6 prongs of the Strickland test. See Strickland, 466 U.S. at 687, 694.

7 Accordingly, because Petitioner was an adult at the time of the offenses and received

8 the mandatory minimum sentence for each offense, the Court DENIES the instant Motion

9 with respect to allegations that Mr. Brown deficiently failed to raise Petitioner’s age at the

10 time the offenses occurred.

11 4. Alleged Failure to Poll the Jury to Confirm Unanimous Verdicts (Ground

12 4)

13 In Petitioner’s fourth claim, Petitioner argues that his trial counsel was ineffective

14 for failing to poll the jury to ensure that the special verdicts were unanimous. (Doc. No.

15 287-1 at 9.) He claims that as the special verdict stipulations were being read, Petitioner

16 noticed a juror “shaking his head ‘No’ as if in disagreement with the special verdicts.” (Id.)

17 In response, the Government states that Petitioner’s claim is speculative. (Doc. No. 290 at

18 18.)

19 “Any criminal defendant . . . being tried by a jury is entitled to the uncoerced verdict

20 of that body.” Lowenfield v. Phelps, 484 U.S. 231, 241 (1988). “The parties may poll the

21 jury in order ‘to ascertain for a certainty that each of the jurors approves of the verdict as

22 returned.’” Harrison v. Gillespie, 640 F.3d 888, 899 n.7 (9th Cir. 2011) (quoting

23 Humphries v. Dist. of Columbia, 174 U.S. 190, 194 (1899)). “Such a poll exists primarily

24 to dispel uncertainty about the jury’s verdict.” Harrison, 640 F.3d at 899 n.7.

25 Here, while Petitioner’s counsel did not ask for each juror to be individually polled,

26 the Court did. (See Doc. No. 223 at 15:18–17:17 (“Let’s go ahead and individually poll the

27 panel on that question.”)) Each and every juror was specifically asked if the verdict was

28 theirs, and the Court accepted each juror’s affirmation and recorded the special verdict.

1 (Id.) Additionally, Petitioner presents no evidence that a juror was shaking his head, “no”

2 as if in disagreement. (See Doc. No. 287-1 at 9.) However, even if the juror had engaged

3 in such behavior, the Court’s supervision over the verdict and decision to individually poll

4 the jury eliminated any uncertainty about the unanimity of the verdict. See Harrison, 640

5 F.3d at 899 n.7.

6 Because the Court polled the jury and Petitioner does not provide any evidence of

7 juror confusion, Petitioner fails to carry his burden under Strickland’s first prong to

8 demonstrate that his counsel acted unreasonably. See McCarthy v. Maass, 145 F.3d 1339

9 (9th Cir. 1998) (“[D]efense counsel did not act below the standard of reasonableness by

10 not polling the jury” where “jury was not confused but understood the instructions.”)

11 Petitioner’s claim also fails under Strickland’s second prong given that the Court polled

12 the jury, so Petitioner was not prejudiced by any alleged omission from his counsel. See

13 Strickland, 466 U.S. at 687–88, 694.

14 Accordingly, the Court DENIES the instant Motion with respect to allegations Mr.

15 Brown deficiently failed to poll the jury to ensure that the special verdicts were unanimous.

16 5. Alleged Failure to Present Testimony of Alibi Witness (Ground 5)

17 Petitioner’s final ground of his ineffective assistance of counsel claim is that Mr.

18 Brown failed to call Petitioner’s alibi witness, Petitioner’s wife, to testify at his trial

19 regarding Petitioner’s location on the night of the January 5, 2017, Arco Station Robbery.

20 (Doc. No. 287-1 at 10.) Petitioner asserts that he “notified counsel, early in the defense

21 preparation that he had an alibi for the date and time of the alleged Arco gas station robbery

22 [on January 5, 2017] . . . [t]hat he had been home with the mother of his children[.]” (Id.)

23 Petitioner states, “trial counsel Brown spoke directly to the witness, Brijonna McNeely,

24 and verified [P]etitioner’s alibi, yet never raised it.” (Id.) Petitioner continues, “Brown

25 admitted he had failed to give the proper notice of [P]etitioner’s alibi defense.” (Id.) In

26 support of Petitioner’s argument, Petitioner filed a declaration from Ms. McNeely stating,

27 “from January[] 4, 2017, until at least the early evening of January 6, 2017, I was in the

28 company of [Petitioner]. During that time[,] we cohabitated as man and wife.” (Doc. No.

1 287-2 at 4.) Ms. McNeely provides no further detail about the activities of Petitioner during

2 that two-day time frame. (Id.) Ms. McNeely also confirmed speaking with Mr. Brown,

3 telling him she “was willing to testify on [Petitioner’s] behalf.” (Id.) According to Ms.

4 McNeely, Mr. Brown thanked her, “and said he would be in touch if needed,” but she

5 “never spoke to him again in regards to that.” (Id.) In response, the Government retorts that

6 Petitioner’s claim is baseless because trial counsel Brown investigated Ms. McNeely’s

7 testimony but made a strategic, tactical decision not to call her to the stand, and that her

8 declaration lacks specificity and credibility. (Doc. No. 290 at 18–19.)

9 “Few decisions a lawyer makes draw so heavily on professional judgment as whether

10 or not to proffer a witness at trial.” Lord v. Wood, 184 F.3d 1083, 1095 (9th Cir. 1999).

11 While the standard of review to assess the reasonableness of counsel’s performance is

12 “highly deferential,” Kimmelman, 477 U.S. at 381, “where . . . a lawyer does not put a

13 witness on the stand, his decision will be entitled to less deference than if he interviews the

14 witness.” Lord, 184 F.3d at 1095 n.8. “The reason for this is simple: A lawyer who

15 interviews the witness can rely on his assessment of their articulateness and demeanor-

16 factors we are not in a position to second-guess.” Id.

17 Absent from the parties’ original briefing was an affidavit or declaration from Mr.

18 Brown regarding whether he interviewed Ms. McNeely prior to Petitioner’s trial. (See Doc.

19 No. 307.) In the interest of compiling a complete record, on June 10, 2025, this Court found

20 that if Petitioner wished to maintain his ineffective assistance of counsel claim on this last

21 ground, good cause existed to waive the attorney-client privilege between Petitioner and

22 his former counsel with respect to their communications concerning whether Ms. McNeely

23 would be called as an alibi witness to testify as to Petitioner’s location the evening of the

24 January 5, 2017, robbery. (Id.) Petitioner filed a letter stating that he did not object to the

25 partial waiver because he seeks to maintain his ineffective assistance of counsel claim.

26 (Doc. No. 312.)

27 Mr. Brown filed a declaration in response. (Doc. No. 315.) He states that prior to

28 trial, “Brijonna McNeely was interviewed by me, my investigator, and by Federal Defender

1 lawyers and investigators[,]” including on June 15, 2018, October 26, 2018, November

2 2018, January 5, 2019, March 14, 2019, and June 11, 2019. (Id. ¶¶ 3, 6.) Brown hired an

3 investigator “for the specific purpose of investigating any possible alibi.” (Id. ¶ 3.) He

4 further declares he “spoke with Ms. McNeely by telephone and in person about the case

5 and specifically if she could supply an alibi.” (Id.) Brown states, “Ms. McNeely denied

6 having an alibi for the Arco robbery, indicating the Petitioner was likely at work.” (Id.)

7 Moreover, Mr. Brown states, “Petitioner was interviewed and denied having an alibi for

8 the Arco robbery.” (Id. ¶ 4.) Finally, he states, “[f]or the entire time I represented Petitioner,

9 he did not suggest an alibi for the Arco robbery. Nor did Ms. McNeely. . . . The first time

10 I was made aware of any alibi witness or defense was when I received the instant court

11 order.” (Id. ¶¶ 6–7.)

12 In addition to Mr. Brown’s Declaration stating that he interviewed Ms. McNeely,

13 both Petitioner and Ms. McNeely concede that Mr. Brown spoke with Ms. McNeely about

14 Petitioner’s alibi. (Doc. No. 287-1 at 10 (Petitioner declaring, “trial counsel Brown spoke

15 directly to the witness, Brijonna McNeely, and verified [P]etitioner’s alibi, yet never raised

16 it.”)3; see also Doc. No. 287-2 at 4.) Having interviewed Ms. McNeely about any potential

17 alibi for Petitioner, deference to Mr. Brown’s professional judgment is merited, see Lord,

18 184 F.3d at 1095, and Mr. Brown’s performance did not fall below an “objective standard

19 of reasonableness[,]”Strickland, 466 U.S. at 688; see also Jones, 2008 WL 505230, at *13

20 (“Counsel’s concerns about the credibility of Petitioner’s alibi witnesses and the viability

21

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3 Petitioner later contradicts his initial declaration, stating that his counsel “explored nothing, and

23 thus had nothing to base a tactical decision on . . . he [would have] had to talk to [McNeely] first, and see

what she would have been able to testify to, and that did not happen here.” (Doc. No. 291 at 9.) Petitioner’s

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conflicting assertions, first claiming that Brown “verified [P]etitioner’s alibi[,]” (Doc. No. 287-1 at 10),

25 and then stating that Brown did not talk to her, (Doc. No. 291 at 9) only weaken Petitioner’s credibility.

“A claim of failure to interview a witness may sound impressive in the abstract, but it cannot establish

26 ineffective assistance when the person’s account is otherwise fairly known to defense counsel.” See

Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986) (quoting United States v. Decoster, 624 F.2d

27 196, 209 (D.C. Cir. 1976)). Here, both Petitioner and Ms. McNeely admit to speaking with Brown about

her alibi, so Petitioner’s later-in-time claim that Brown failed to speak with Ms. McNeely rings hollow.

28

1 of the defense is a strategic reason for not presenting the defense at trial.”); see also

2 Siripongs v. Calderon, 133 F.3d 732, 735 (9th Cir. 1998) (“[A]ccomplice defense was not

3 deemed credible enough for presentation to the jury, and we have no basis to fault this

4 tactical judgment.”)

5 Petitioner has also not adequately demonstrated that he was prejudiced by Ms.

6 McNeely not testifying. As an initial matter, Ms. McNeely, as Petitioner’s wife, is a family

7 member of Petitioner, and therefore “lack[s] the inherent credibility” of a disinterested

8 witness. See Jones v. Woodford, No. CIV. 03CV1463J(RBB), 2008 WL 505230, at *59

9 (S.D. Cal. Feb. 25, 2008) (“Here, the alibi witnesses are all family members or friends of

10 Jones, so they lack the inherent credibility of the disinterested witnesses in Lord.”)

11 Additionally, Ms. McNeely’s declaration includes only a vague assertion that she was with

12 Petitioner for a two-day period encompassing the January 5, 2017, Arco Station Robbery.

13 (Doc. No. 287-2 at 4 (“That from January[] 4, 2017, until at least the early evening of

14 January 6, 2017, I was in the company of [Petitioner].”)) Without specifying where

15 Petitioner was at the exact time of the Arco Station Robbery, and why he could not have

16 robbed the Arco station, Petitioner asks the Court to speculate as to the content of Ms.

17 McNeely’s testimony. See Borg, 24 F.3d at 26 (“Conclusory allegations which are not

18 supported by a statement of specific facts do not warrant habeas relief.”) Finally, it would

19 be difficult for any counsel to objectively verify Ms. McNeely’s testimony given the

20 overwhelming evidence against Petitioner with respect to the Arco Station Robbery.

21 Petitioner’s DNA was found on the Arco station black plastic bag (Doc. No. 191 at 52:4 –

22 56:15), which the Arco station cashier testified filling with money and providing to

23 Petitioner while Petitioner held her at gunpoint (see id. at 3:9–6:11; 13:10–14:5).

24 Furthermore, the video footage of the Arco Station Robbery aligns with the modus

25 operandi of the remaining robberies—the robber brandished a handgun with a laser sight

26 attached to the trigger guard and was wearing a hooded sweatshirt with the hood drawn

27 tightly around his face. (Doc. No. 194 at 6.) Therefore, it is doubtful that the alibi witness’s

28 testimony would have changed the outcome of Petitioner’s trial. Petitioner’s claim

1 therefore falls short of satisfying Strickland’s second prong. See Strickland, 466 U.S. at

2 687–88, 694.

3 Accordingly, because it is undisputed that Petitioner’s counsel interviewed

4 Petitioner’s alibi witness and made the strategic decision not to call her to testify, and

5 Petitioner fails to show prejudice, the Court DENIES the instant Motion with respect to

6 allegations Mr. Brown deficiently failed to call Petitioner’s alibi witness to the stand.

7 III. MOTION TO APPOINT COUNSEL

8 In a separate motion, Petitioner requests that the Court appoint counsel. (Doc. No.

9 286.) “[T]he protections of the Sixth Amendment right to counsel do not extend to either

10 state collateral proceedings or federal habeas corpus proceedings.” Bonin v. Vasquez, 999

11 F.2d 425, 430 (9th Cir. 1993). However, the Court may provide a financially eligible

12 § 2255 petitioner with representation when “the interests of justice so require . . . .” 18

13 U.S.C. § 3006A(a)(2)(B). “Unless an evidentiary hearing is required, the decision to

14 appoint counsel is within the discretion of the district court.” Knaubert v. Goldsmith, 791

15 F.2d 722, 728 (9th Cir. 1986); cf. R. 8(c), Rules Governing Section 2255 Proceedings (“If

16 an evidentiary hearing is warranted, the judge must appoint an attorney to represent a

17 moving party who qualifies to have counsel appointed under 18 U.S.C. § 3006A.”).

18 A district court must hold an evidentiary hearing before denying a § 2255 motion,

19 unless it is conclusively shown that the petitioner is entitled to no relief. 28 U.S.C. §

20 2255(b); see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (“Summary

21 dismissal is appropriate only where the allegations in the petition are ‘vague or conclusory’

22 or ‘palpably incredible,’ or ‘patently frivolous or false.’”) (quoting Allison, 431 U.S. at 75–

23 76). However, if it is clear the petitioner has failed to state a claim, or has “no more than

24 conclusory allegations, unsupported by facts and refuted by the record,” a district court

25 may deny a § 2255 motion without an evidentiary hearing. Quan, 789 F.2d at 715. As

26 discussed above, the Court finds that Petitioner has failed to state a claim on all grounds.

27 The Court finds that an evidentiary hearing is not required and, accordingly, DENIES

28 Petitioner’s request for appointment of counsel.

1 IV. MOTION FOR SANCTIONS

2 In response to the Government’s opposition brief to Petitioner’s Motion to Vacate,

3 Petitioner filed a Motion for Sanctions against the Government pursuant to Federal Rule

4 of Civil Procedure 11(c). (Doc. No. 292.) Petitioner argues that the Government made four

5 misrepresentations in its opposition brief that merit Rule 11 sanctions: (1) the Government

6 did not attach a “memorandum of points and authorities” or any exhibits despite

7 representing that its response “is based upon the attached memorandum of points and

8 authorities, exhibits, and the files and records in the underlying criminal case. . . [,]” (id.

9 ¶ 4; Doc. No. 290 at 1); (2) the Government stated that “Holiday seems to imply that the

10 DNA results were indeed accurate,” which Petitioner disputes, (Doc. No. 292 ¶ 5; Doc.

11 No. 290 at 14); (3) the Government asserted that Petitioner “even admits that after

12 investigating [Petitioner’s alibi witness’s] claim, ‘it would not have made much of a

13 difference . . .,’” which Petitioner finds “preposterous,” (Doc. No. 292 ¶ 6; Doc. No. 290

14 at 19 (quoting Doc. No. 287-2 at 3)4); and (4) the Government misstated the date it mailed

15 its response to Petitioner on its certificate of service, (Doc. No. 292 ¶ 7).

16 A. Legal Standard

17 Federal Rule of Civil Procedure 11 provides in pertinent part, that when a party

18 presents a signed paper to a court, that party is certifying that to the best of their

19 “knowledge, information and belief, formed after an inquiry reasonable under the

20 circumstances ... the claims, defenses, and other legal contentions are warranted by existing

21 law or by nonfrivolous argument for extending, modifying, or reversing existing law or for

22

23

24 4 Petitioner also characterizes the Government’s citation, “See Deft. Motion, 287- at 3,” (Doc. No.

290 at 19), as a citation to a “‘ghost’ location.” (Doc. No. 292 ¶ 6.) In response, the Government states

25

that it “meant to cite to ‘287-2 at 3[]’” and its “error was a typo.” (Doc. No. 295 at 6.) While rampant

26 typographical errors can be considered in a Rule 11 sanctions analysis, see Ludyjan-Woods v. Am. Mortg.

Exp. Corp., No. 12CV2892-LAB WMC, 2013 WL 693065, at *2 (S.D. Cal. Feb. 26, 2013) (citing Hickey

27

v. Scott, 738 F.Supp.2d 55, 73 (D.D.C.2010)), the Court does not find that the Government’s single

28 incomplete citation rises to the level of warranting Rule 11 sanctions.

1 establishing new law.” Fed. R. Civ. P. 11(b)(2). Sanctions under Rule 11(c) are warranted

2 only when there has been a violation of Rule 11(b), i.e., when a party files a paper that is

3 frivolous, legally unreasonable, without factual foundation, or is otherwise brought for an

4 improper purpose. Warren v. Guelker, 29 F.3d 1386, 1388 (9th Cir. 1994) (citing Conn v.

5 Borjorquez, 967 F.2d 1418, 1420 (9th Cir. 1992); Operating Engrs. Trust v. A-C Co., 859

6 F.2d 1336, 1344 (9th Cir. 1988)). A filing is “frivolous” when it is “both baseless and made

7 without a reasonable and competent inquiry.” Townsend v. Holman Consulting Corp., 929

8 F.2d 1358, 1362 (9th Cir. 1990). A filing is made for an improper purpose if it was intended

9 “to harass, cause unnecessary delay, or needlessly increase the cost of litigation[.]” Fed. R.

10 Civ. P. 11(b)(1). Either improper purpose or frivolousness is sufficient to sustain an award

11 of sanctions under Rule 11(c). Townsend, 929 F.2d at 1362.

12 A finding of subjective bad faith is not required under Rule 11. See Smith v. Ricks,

13 31 F.3d 1478, 1488 (9th Cir. 1994) (“Counsel can no longer avoid the sting of Rule 11

14 sanctions by operating under the guise of a pure heart and empty head.”). If the court

15 determines a Rule 11 violation occurred, “the court may impose an appropriate sanction on

16 any attorney, law firm, or party that violated the rule or is responsible for the violation.”

17 Fed. R. Civ. P. 11(c)(1).

18 B. Discussion

19 The Court finds that none of the four bases proffered by Petitioner warrant Rule 11

20 sanctions against the Government.

21 1. Failure to Attach Exhibits (Ground 1)

22 Petitioner first asserts that the Government engaged in fraud upon the court by

23 stating in the first paragraph of its opposition brief that the brief was based upon “the

24 attached memorandum of points and authorities” and “exhibits” when Petitioner contends,

25 “no memorandum of points and authorities, or exhibits were attached.” (Doc. No. 292 at

26 2; Doc. No. 290 at 1.) The Government responds that “a memorandum of points and

27 authorities consists of a statement of facts, an explanation of the relevant law, arguments,

28 and a conclusion” and that “is nearly the whole of the United States’ response.” (Doc. No.

1 295 at 4.) The Government stipulates that while it is true that no exhibits were attached to

2 its response, it’s inclusion of the word, “exhibits” was “an editing error – not a ‘fraud upon

3 the court.’” (Id.)

4 The Court agrees with the Government. The Government’s response brief included

5 a substantial “relevant facts” section that cited to the record, (Doc. No. 290 at 2–11), which

6 preceded its “argument” that cited to relevant legal authority and case law, (id. at 12–23).

7 For all intents and purposes, the Government’s brief could be characterized as a

8 “memorandum of points and authorities,” so no Rule 11 violation exists. As to Petitioner’s

9 second argument that the Government did not include any exhibits despite stating that

10 exhibits were attached, the Court considers the Government’s statement a minor violation.

11 Petitioner does not allege any prejudice as a result of the misstatement, nor does the Court

12 find that any exists. Because “Rule 11 is not intended to be used against attorneys for minor

13 violations[,]” Art Attacks Ink, LLC v. MGA Ent., Inc., No. 04CV1035 J (BLM), 2006 WL

14 8439887, at *8 (S.D. Cal. June 21, 2006), the Government’s editing error does not warrant

15 Rule 11 sanctions.

16 2. Government’s Arguments Regarding Petitioner’s View on Accuracy of

17 DNA Evidence & Saliency of Alibi Witness (Grounds 2 & 3)

18 Petitioner next takes issue with two of the Government’s arguments. First, Petitioner

19 characterizes the Government’s statement, “Holiday seems to imply that the DNA results

20 were indeed accurate,” (see Doc. No. 290 at 14), as “a lie,” asserting that “at no time has

21 the [Petitioner] made any such implication.” (Doc. No. 292 ¶ 5.) In response, the

22 Government reiterates the basis for its argument. In Petitioner’s Motion to Vacate,

23 Petitioner argued “[b]ecause the [Petitioner] lives in the area where the bag was allegedly

24 found, the source of the DNA, and insurance of noncontaimination [sic], or touch

25 contamination, was crucial[,]” (Doc. No. 287-1 at 6), potentially implying that Petitioner’s

26 DNA may have been recovered from the bag because he “lives in the area[,]” but someone

27 else robbed the Arco gas station. (Doc. No. 295 at 5.) The Court finds the Government’s

28 inference reasonable and nonfrivolous.

1 Second, Petitioner finds it “preposterous” that the Government asserted that

2 Petitioner “even admits that after investigating [Petitioner’s alibi witness’s] claim, ‘it

3 would not have made much of a difference . . . .’” (Doc. No. 292 ¶ 6; Doc. No. 290 at 19

4 (quoting Doc. No. 287-2 at 3).) The Government responds that it made this argument

5 because “[t]o concede that [Petitioner’s] counsel said the alibi defense would not have

6 made much of a difference severely undermines the ineffective assistance of counsel claim

7 . . . .” (Doc. No. 295 at 6.) The Government also concedes, “[t]o be fair, the United States

8 could have better delineated that Holiday was admitting that it was his attorney who said

9 the alibi defense would not have made much of a difference,” (id.), and not Petitioner

10 himself. The Court agrees with the Government’s concession that the Government could

11 have been clearer in its language, (see Doc. No. 287-2 at 3), but that its argument was

12 nonfrivolous and not intended to harass.

13 In sum, while Petitioner may disagree with the Government’s framing of these two

14 arguments, disagreement with an argument reasonably constructed from facts in the record

15 or in response to Petitioner’s own motion do not warrant Rule 11 sanctions. See Psaila v.

16 Girardi, No. CV 23-07120-MWF (SKX), 2024 WL 5341340, at *1 (C.D. Cal. Dec. 4,

17 2024) (declining to impose Rule 11 sanctions because counsel’s “disagreement with the

18 inferences that [opposing] counsel drew from the alleged facts are not reasonable grounds

19 for concluding the [pleading] is factually baseless.”) Additionally, Petitioner was not

20 prejudiced by the Government’s arguments because Petitioner had the opportunity to

21 respond in his traverse. Rule 11 sanctions are not warranted.

22 3. Certificate of Service (Ground 4)

23 Petitioner’s final complaint is that the Government’s certificate of service

24 accompanying the Government’s response to Petitioner’s Motion to Vacate indicated that

25 the Government’s response was mailed to Petitioner on “February 18, 2025,” but it was

26 electronically filed on “February 16, 2025,” and postmarked, “February 20, 2025,” which

27 Petitioner characterizes as “more fraud upon the court.” (Doc. No. 292 at 3.) In response,

28 the Government states that the undersigned Assistant United States Attorney electronically

1 filed the Government’s response on February 16, 2025, a Sunday, and had arranged for the

2 response to be mailed to Petitioner on Tuesday, February, 18, 2025, which was the first

3 business day after the response was filed (February 17, 2025, was a federal holiday). (Doc.

4 No. 295 at 6–7; see also Doc. No. 295-1.) The Government further responds, due to an

5 “administrative processing error,” its response was not actually mailed until February 19,

6 2025, and then postmarked the following day. (Doc. No. 295 at 7; see also Doc. No. 295-

7 3.) The Government “concedes that an amended or corrected certificate should have been

8 filed and apologizes for not doing so[,]” but that “there was certainly no intent to mislead

9 the Court or [Petitioner]. . .” (Doc. No. 295 at 7.) In his reply, Petitioner responds, “The

10 [G]overnment’s ‘apology’ is the clearest indicator that there is certainly [a] basis for

11 sanctions.” (Doc. No. 305 at 1 (internal quotation marks omitted).)

12 Nothing before the Court indicates that the Government’s administrative processing

13 error was made in bad faith or is anything besides an inadvertent mistake. Additionally,

14 Petitioner does not argue that he was prejudiced by the two-day delay. (See Doc. Nos. 292,

15 305.) Nevertheless, because Petitioner complied with Rule 11’s twenty-one day safe-

16 harbor provision by notifying the Government of his intent to file a motion for sanctions

17 because of the date error on the certificate of service, (see Doc. No. 292 at 6), the

18 Government should have noticed the error and filed a corrected certificate of service. See

19 Bonadeo v. Lujan, 748 F. Supp. 2d 1268, 1273 (D.N.M. 2009) (“The Court is not

20 minimizing that fact that counsel for the Defendants should have noticed the error and are

21 responsible for filing pleadings which are accurate.”) Especially in consideration that

22 Petitioner is proceeding pro se, the Government is advised to be more attentive in the

23 future.

24 Looking at the totality of the circumstances, the Court finds that the Government’s

25 error “was not so inexcusably reckless as to warrant sanctions.” Id. (declining to impose

26 Rule 11 sanctions where defendants’ certificate of service stated incorrect date where there

27 was no indication of bad faith and Plaintiff was not prejudiced); see also Scott v. Stephens,

28 No. C.A. C-06-108, 2007 WL 1522622, at *2 (S.D. Tex. May 23, 2007) (declining to

1 impose Rule 11 sanctions where defendants’ certificate of service was dated three days

2 prior to postmark date where there was no indication it was intentional “but instead, was

3 simply an oversight and mistake” and “plaintiff suffered no harm as a result”). Because

4 “Rule 11 is not intended to be used against attorneys for minor violations[,]” Art Attacks

5 Ink, LLC, 2006 WL 8439887, at *8, the Court does not impose sanctions on the

6 Government for the date error in its certificate of service.

7 Accordingly, the Court DENIES Petitioner’s Motion for Sanctions and ORDERS

8 the Government to file a “Notice of Errata” correcting the service date on its certificate of

9 service.

10 V. CERTIFICATE OF APPEALABILITY

11 Lastly, “[u]nder the Antiterrorism and Effective Death Penalty Act of 1996, there

12 can be no appeal from a final order in a § 2255 proceeding unless a circuit justice or judge

13 issues a certificate of appealability.” Welch v. United States, 578 U.S. 120, 127 (2016)

14 (citing 28 U.S.C. § 2253(c)(1)). A court may issue a certificate of appealability “only if the

15 applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

16 § 2253(c)(2). “That standard is met when ‘reasonable jurists could debate whether (or, for

17 that matter, agree that) the petition should have been resolved in a different manner.’”

18 Welch, 578 U.S. at 127 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

19 Having reviewed the record, the Court finds that no reasonable jurist would dispute

20 that Mr. Brown’s challenged performance fell within the “wide range of reasonable

21 professional assistance.” See Strickland, 466 U.S. at 689. The Court therefore DENIES a

22 certificate of appealability.

23 VI. CONCLUSION

24 After careful consideration, the Court finds that Petitioner’s Motions, the briefs filed

25 in opposition thereto and support thereof, and the record as a whole “conclusively show

26 that [Petitioner] is entitled to no relief.” 28 U.S.C. § 2255(b). Accordingly, the Court

27 DENIES Petitioner’s Motion to Vacate pursuant to 28 U.S.C. § 2255, DENIES

28 Petitioner’s Motion to Appoint Counsel, and DENIES Petitioner’s Motion for Sanctions

| || for fraud upon the Court. The Court ORDERS the Government to file a “Notice of Errata,”

2 ||correcting the date on the certificate of service accompanying its opposition brief to

3 || Petitioner’s Motion to Vacate.

4 The Clerk of the Court is instructed to enter judgment in both the underlying criminal

5 and Petitioner’s civil case and close Petitioner’s civil case.

6 IT IS SO ORDERED.

7 Dated: July 28, 2025 ,

9 United States District Judge

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