The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA, )
)
Plaintiff-Respondent, )
)
v. ) No. CR-23-227-R
) (CIV-25-1207-R)
ERICK GACHUHI WANJIKU, )
)
Defendant-Petitioner. )
ORDER
Before the Court is Defendant-Petitioner Erick Gachuhi Wanjiku’s Motion under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody
[Doc. No. 186]. The Government responded in opposition [Doc. No. 207] and Petitioner
replied [Doc. No. 212]. The Court has considered the arguments, relevant authorities, and
record,1 and for the reasons explained below, finds no hearing is needed, no expansion of
the record is necessary, and the Motion should be denied.
BACKGROUND
Petitioner Wanjiku was convicted of a felony in 2022. State of Oklahoma v. Wanjiku,
Dist. Ct. of Tulsa Cnty., Okla., No. CF-2019-4181 (2019). After his sentence expired, he
1 “Unless the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine
the issues and make findings of fact and conclusions of law with respect thereto.” 28 U.S.C.
§ 2255(b). See also United States v. Marr, 856 F.2d 1471, 1472 (10th Cir. 1988) (citation
omitted) (evidentiary hearing not required where “case record conclusively shows the
prisoner is entitled to no relief”). The Court finds the existing record conclusively shows
the Petitioner is not entitled to relief and thus no evidentiary hearing is needed. United
States v. Lopez, 100 F.3d 113, 121 (10th Cir. 1996).
was released into the custody of Immigration and Customs Enforcement because his felony
conviction called into question his lawful permanent resident status [Doc. No. 89, Final
Pre-Sentence Investigation Rep., ¶ 6; Doc. No. 1, Crim. Compl., p. 3 n.1]. On May 8, 2023,
Petitioner arrived at the Enforcement and Removal Operations Office in Oklahoma City.
PSR, ¶ 6. Petitioner was later removed from his cell to take fingerprints and sign
paperwork, but due to his noncompliance, he was handcuffed. Id. Shortly thereafter,
Petitioner kicked ICE Officer C.V. near his left knee and lunged toward ICE Officer M.C.,
biting him in the chest. Id. The incident was recorded on surveillance cameras and another
ICE officer’s iPhone [Doc. No. 129, Trial Tr., 31]. PSR, ¶ 8.
Petitioner was later tried and found guilty of two counts of Assault on a Federal
Officer pursuant to 18 U.S.C. § 111 [Doc. No. 50]. In January of 2024, he was sentenced
to 36 months’ imprisonment [Doc. Nos. 96-98]. Petitioner filed this pro se motion pursuant
to 28 U.S.C. § 2255 in October of 2025,2 asserting four overarching grounds for relief: (1)
ineffective assistance of trial counsel, (2) ineffective assistance of appellate counsel, (3)
prosecutorial misconduct, and (4) this Court’s bias and abuse of discretion.
DISCUSSION
“A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed in violation
of the Constitution or laws of the United States, or that the court was without jurisdiction
2 Because Petitioner is proceeding pro se, the Court liberally construes his arguments. Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But it is not “the proper function of the
district court to assume the role of advocate for the pro se litigant.” Id.
to impose such sentence, or that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). “Section 2255
is available to correct errors of constitutional or jurisdictional dimension, or fundamental
errors which result in a complete miscarriage of justice.” Brown v. United States, 34 F.3d
990, 991 (10th Cir. 1994); see also United States v. Addonizio, 442 U.S. 178, 184-86
(1979).
I. Timeliness
The Government argues Petitioner’s Motion is untimely. There is a one-year
limitations period for § 2255 motions which, in most cases, runs from “the date on which
the judgment of conviction becomes final.” § 2255(f)(1). A conviction becomes final upon
completion of direct review. United States v. Burch, 202 F.3d 1274, 1277 (10th Cir. 2000).
Petitioner’s conviction became final on December 9, 2024, when the Supreme Court denied
his Petition for Writ of Certiorari [Doc. No. 157]. Petitioner filed his § 2255 Motion in
October 2025, within the one-year limitations period. Accordingly, his Motion is timely.
II. Ineffective Assistance of Counsel
a. Legal Standard
When ineffective assistance of counsel is the basis of a § 2255 claim, the defendant
must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687
(1984). Under this test, a defendant must show both that his “counsel’s performance was
deficient” and that “the deficient performance prejudiced the defense.” Id.
A defendant can establish the first prong by showing that counsel performed below
the level expected from a reasonably competent attorney. Id. at 687-88. In evaluating
counsel’s performance, courts should make “every effort . . . to eliminate the distorting
effects of hindsight” and “must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Id. at 689.
To establish the second prong, a defendant must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. A reasonable probability is “a probability sufficient to
undermine confidence in the outcome.” Id. The likelihood of a different result “must be
substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). “The
focus of the inquiry is ‘whether counsel’s deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair.’” United States v. Deiter, 890 F.3d
1203, 1209 (10th Cir. 2018) (quoting Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)).
Every effort must be made “‘to evaluate the conduct from counsel’s
perspective at the time,’” and “‘[c]ounsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.’” Dever v. Kan. State
Penitentiary, 36 F.3d 1531, 1537 (10th Cir. 1994) (quoting Strickland, 466
U.S. at 689). To overcome this strong presumption, a defendant “bears a
heavy burden.” Fox v. Ward, 200 F.3d 1286, 1295 (10th Cir. 2000).
United States v. Challoner, 583 F.3d 745, 749 (10th Cir. 2009) (citations modified).
If a defendant cannot show either “deficient performance” or “sufficient prejudice,”
his claim of ineffective assistance fails. Strickland, 466 U.S. at 700.
b. Petitioner’s Trial Counsel
First, Petitioner asserts his trial counsel was ineffective by failing to file a motion to
suppress evidence. According to Petitioner, ICE (1) illegally arrested him pursuant to a
detainer that was later cancelled and (2) used illegal force to obtain his thumbprint on
processing forms. Petitioner claims this conduct violated his Fourth Amendment right to
be free from unreasonable searches and seizures. Thus, Petitioner says, the evidence of his
kicking and biting ICE officers after his illegal arrest and/or ICE’s illegal force was “fruit
of the poisonous tree” that his trial counsel should have moved to suppress. See Wong Sun
v. United States, 371 U.S. 471, 488 (1963).
Petitioner’s argument does not bear fruit. “Evidence of a separate, independent
crime initiated against police officers in their presence after an illegal entry or arrest will
not be suppressed under the Fourth Amendment.” United States v. Waupekenay, 973 F.2d
1533, 1538 (10th Cir. 1992). In Waupekenay, the Tenth Circuit noted that “[i]n assault,
resisting arrest, disorderly conduct, and weapons-related trials, [] courts have uniformly
rejected motions to suppress arising from skirmishes” “subsequent to an unlawful search
or seizure.” Id. at 1537 (collecting cases).
We conclude that Mr. Waupekenay did not have a legitimate, reasonable
expectation of privacy when he initiated criminal activity—assault—in the
presence of the police officers within [his] trailer. Once Mr. Waupekenay was
aware that the police officers were present in his home and were observing
him, he could not have had a reasonable expectation of privacy for any
actions initiated subsequently to that time in their presence. He obviously
intended for the police to see him aim a semi-automatic weapon at them.
Thus, he could not have had a legitimate expectation of privacy in that action.
See Katz v. United States, 389 U.S. 347, 351 (1967) (“What a person
knowingly exposes to the public, even in his own home or office, is not a
subject of Fourth Amendment protection.”) (citations omitted).
Id. at 1537 (citation modified).
Whether his arrest3 or the actions taken by ICE to obtain his thumbprint4 were illegal
or not, Petitioner could not have had a reasonable expectation in his privacy when he
initiated the assault in plain view of ICE officers in the ERO. Petitioner has failed to
establish his trial counsel performed below the level expected of a reasonably competent
attorney by declining to file a motion to suppress the evidence of the assault.
Petitioner next argues his trial counsel was ineffective by failing to subpoena certain
witnesses to testify at trial. “Generally, the decision whether to call a witness rests within
the sound discretion of trial counsel.” Jackson v. Shanks, 143 F.3d 1313, 1320 (10th Cir.
1998) (citing United States v. Snyder, 787 F.2d 1429, 1432 (10th Cir. 1986)). And
3 In any event, Petitioner has failed to adequately argue his arrest/detention was
unconstitutional. The Court liberally construes Petitioner’s pro se petition, but it will not
“fashion [Petitioner’s] arguments for him where his allegations are merely conclusory in
nature and without supporting factual averments.” United States v. Fisher, 38 F.3d 1144,
1147 (10th Cir. 1994) (citing Hall, 935 F.2d at 1110).
4 Throughout his Motion, Petitioner insists ICE could not use force to obtain his fingerprints
on immigration paperwork. He primarily relies on ICE Policy to make this argument. But
that Policy, a copy of which Petitioner attached to his Motion, states that “necessary and
reasonable force may be used to obtain fingerprints from noncompliant individuals” on
certain forms, including an I-385 [Doc. No. 186-13, at p. 3]. An I-385 is an Alien Booking
Record form. Id. The Policy further provides that “[b]efore attempting to obtain a
fingerprint from a noncompliant individual, ICE . . . will first place the individual in
appropriate restraints . . .” which generally entails “securing an individual’s hands behind
his or her back.” Id. at p. 4. At trial, ICE Officer M.C. testified that Petitioner was required
to complete an I-385 form and when Petitioner was noncompliant, he was placed in
handcuffs. Trial Tr., 29-30, 45-46. Petitioner’s argument that ICE violated its Policy by
handcuffing him to obtain thumbprints on an I-385 is a nonstarter—based on the record
before this Court, the Policy permitted officers to use reasonable force, including
handcuffs, to attempt to obtain Petitioner’s thumbprint on the I-385 form.
“[g]enerally, counsel’s failure to call witnesses whose testimony would be corroborative or
cumulative of evidence already presented at trial is not deemed constitutionally deficient.”
Snow v. Sirmons, 474 F.3d 693, 729 (10th Cir. 2007). And even if trial counsel makes an
unreasonable decision not to call a witness, “‘[t]o affirmatively prove prejudice,
[Petitioner] . . . must show not only that the testimony of [an] uncalled witness[] would
have been favorable, but also that [the] witness [] would have testified at trial.’” Id. at 730
n.42 (quoting Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990)).
Petitioner asserts uncalled witness ICE Officer M.S.D. would have impeached
Officer M.C’s trial testimony that Petitioner was not threatened with force. At trial, Officer
M.C. testified he was not aware of any threats or intimidating statements made to Petitioner.
Trial Tr., 40. Petitioner compares this with Officer M.S.D.’s affidavit [Doc. No. 186-10],
in which M.S.D. wrote that he “explained to Wanjiku that his refusal to comply with [the
fingerprinting] requirement could result in his fingerprints being forcibly obtained.”
The Court finds it difficult to credit Petitioner’s interpretation of the facts. Even if
Petitioner had shown Officer M.S.D. would have testified at all, Officer M.S.D. informing
Petitioner that force may be used to take his fingerprints is not the same as threatening
Petitioner with physical or other harm. The record indicates M.S.D. was merely informing
Petitioner of ICE’s Policy of permitting reasonable force to obtain noncompliant
individuals’ fingerprints. See Doc. No. 186-13. Petitioner has not demonstrated his trial
counsel acted unreasonably in choosing not to call Officer M.S.D. to testify at trial.
But even if M.S.D.’s words to Petitioner could be construed as a threat, Petitioner
has not demonstrated that M.S.D.’s testimony would have been favorable to him or that he
was prejudiced by the lack of the testimony. The jury saw ample evidence—including video
surveillance—indicating Petitioner initiated the physical assault. Petitioner has not
demonstrated that, but for the lack of Officer M.S.D.’s testimony, there is a reasonable
probability the outcome of his trial would have been different.5
Petitioner asserts Homeland Security Investigations Special Agents C.B. and R.B.
(who investigated the assaults on Officers M.C. and C.V.) would have testified that force
was being used when the assaults occurred [Doc. No. 186-5, Grand Jury Test. of Special
Agent R.B., 7; Doc. No. 138, Prelim. Hr’g Tr., 15-16]. The Court has examined the record
and cannot find that R.B.’s testimony would have been helpful to Petitioner. It would also
have been largely cumulative of what the jury saw or heard at trial. See Grand Jury Test. of
Special Agent R.B., 5-7, 9. The same can be said for C.B.’s testimony. Though she testified
Policy was to obtain a thumbprint by force if an individual refuses, she also clearly stated
ICE Officers were not aggressive when attempting to obtain Petitioner’s thumbprint.
Prelim Hr’g Tr., 15. She also indicated Petitioner reacted to officers putting ink on his
thumb by kicking Officer C.V. Id. at 16. Though Officer C.B. was questioned by trial
counsel at the preliminary hearing regarding the number of officers and amount of force
involved in restraining Petitioner after the initial kick, id. at 15-19, Petitioner has failed to
demonstrate that he was prejudiced by the lack of C.B.’s testimony on these issues at trial.
The jury saw ample evidence that Petitioner initiated the assault. His counsel was not
5 Petitioner himself testified in a manner conflicting with that of the officers who testified
at trial and the affidavits of the officers who did not. See Trial. Tr., 118-19 (testifying that
ICE officers told Petitioner they were “allowed to use up to deadly force” to get him to
sign paperwork).
unreasonable for declining to call R.B. or C.B. as witnesses, and even if she was, Petitioner
has failed to demonstrate that he was prejudiced by the absence of their testimony.
Petitioner asserts the uncalled witnesses could also have provided information
regarding why he was at the ERO, why his thumbprints were needed, why he was
handcuffed, and why ICE officers could use force to obtain thumbprints. Such testimony
is irrelevant to whether he assaulted federal officers. This Court engaged in several
discussions with trial counsel and the Government and indicated that beyond a general
explanation of why Petitioner was at the ERO, his immigration status should not be
considered and was largely irrelevant to whether Petitioner assaulted federal officers. Mots.
in Lim. Tr., 8-10, 15-21; Trial Tr., 4-5, 65-68. The Court instructed the jury accordingly.
Trial Tr., 20, 161; Jury Instrs., 21. Moreover, when trial counsel’s cross-examination of the
ICE Officers threatened to elicit testimony regarding why Petitioner did not want to sign
immigration paperwork, the Court cabined her on relevance grounds. Id. at 55-56.
Trial counsel was thus not unreasonable for declining to call witnesses to testify
about Petitioner’s immigration status, detainers, etc., especially considering the irrelevance
of those issues to the assault charges. Moreover, even if the jury had heard this testimony,
Petitioner has not demonstrated a reasonable probability it would have changed his trial’s
outcome. As stated above, the jury saw and heard abundant evidence that Petitioner
initiated the assault against the ICE officers. The testimony Petitioner claims the uncalled
witnesses would have provided would not have undermined the facts at trial or supported
a defense. Accordingly, he has not established his trial counsel was ineffective for declining
to call witnesses who would have provided cumulative, unhelpful, and/or irrelevant
testimony.
Petitioner also argues his trial counsel was ineffective by failing to investigate. First,
he insists immigration forms that he refused to sign are relevant and material and should
have been investigated by counsel. Petitioner provides no support for his assertion that his
trial counsel did not examine such forms. In any event, the forms are irrelevant to whether
he assaulted federal officers and he has failed to establish he was prejudiced by trial
counsel’s alleged failure to investigate such forms.
Next, Petitioner proclaims his trial counsel failed to investigate the full videos of his
time in the ERO (surveillance footage of Petitioner both inside and outside his cell and an
iPhone video of the assault). He insists only portions of the videos were provided by the
Government but does not support these assertions, which he has made several times during
this action [Trial Tr., 7; Doc. No. 56, Mot. for New Tr.; Doc. No. 162, Mot. to Compel;
Doc. No. 192, Mot. to Compel].
The Government has already stated all videos have been provided to Petitioner. See
Doc. No. 58; Doc. No. 207; Doc. No. 137, Voir Dire Tr., 7-8. The Court has also already
found the full video of Petitioner inside his cell was provided and was not favorable to
Petitioner [See Doc. No. 63].6 Petitioner has offered no support for his vehement claims
that more video evidence exists. Petitioner’s trial counsel could not have acted
6 After Petitioner’s trial, the Government learned video footage from inside Petitioner’s cell
existed. Doc. No. 58. This Court has previously found it contained nothing exculpatory to
Petitioner. See Doc. No. 63.
unreasonably by failing to investigate something that does not exist, nor has Petitioner
credibly asserted that even if the videos did exist, they would have had any effect on the
outcome of his trial.
Next, Petitioner argues trial counsel was ineffective by failing to object to evidence
obtained in violation of his Fourth Amendment rights. This argument has already been
rejected by the Court.
Petitioner also argues trial counsel was ineffective by failing to object to this Court’s
“suggest[ion] to misrepresent to the jury the basis of petitioner’s presence at the ICE offices
on May 8, 2023.” Doc. No. 212, at p. 12. This argument seems to be premised on the fact
that the detainer pursuant to which Petitioner was being held at the ICE offices was later
cancelled. Such information is irrelevant to the assault. The Court accordingly cabined
counsel’s ability to elicit testimony regarding Petitioner’s beliefs that the detainer was
invalid. See Mots. in Lim. Tr., 19-20 (The Court: “I’ll advise the jury . . . that [the reason
Petitioner was at the ICE facility] shouldn’t be considered in regard to whether or not there
was an assault [].”); Trial Tr., 55-56 (cabining, on relevance grounds, counsel’s attempts to
ask Officer M.C. whether Petitioner indicated he had concerns about his detainer’s
legality). The same goes for Petitioner’s arguments that counsel should have objected to
the Court’s exclusion of evidence regarding ICE policies.
Counsel made many attempts to bring up Petitioner’s immigration status and issues
relevant to it and did not act unreasonably by “failing to object” to the Court’s
determinations that such information was largely irrelevant to the assault. And even if
counsel somehow did act unreasonably, Petitioner has failed to indicate how he was
prejudiced by her failures. The jury saw ample evidence of Petitioner’s assault of the
federal officers—his immigration status is largely irrelevant to that issue.
Petitioner also asserts trial counsel was ineffective by not objecting to the (1)
Government’s failure to provide a chain of custody of the surveillance/iPhone videos and
(2) admission of the iPhone video through Officer M.C., who is not “an expert in video
technology, nor did he record the video.” Doc. No. 212, at p. 13. “When proffered evidence
has distinctive characteristics which make it unique, readily identifiable, and relatively
resistant to change, its foundation for admission may be established by testimony that the
evidence is what its proponent claims it to be.” United States v. Mills, 194 F.3d 1108, 1111-
12 (10th Cir. 1999) (citing FED. R. EVID. 901).
The Court once again rejects Petitioner’s conclusory and unsupported claims that
the videos produced by the Government were tampered with or incomplete. Officer M.C.,
who was present while the videos were taken and witnessed what they recorded in real-
time, testified (1) that he reviewed the iPhone video and surveillance video from outside
Petitioner’s detention cell and (2) the videos were a fair and accurate description of what
he saw on May 8, 2023. Trial Tr., 31-34. This is sufficient testimony to authenticate/identify
the videos. FED. R. EVID. 901(b)(1). Moreover, Petitioner has presented no credible claims
to dispute that the videos are not “‘readily identifiable,’ ‘with sufficient completeness to
render it improbable that the original item has either been exchanged with another or been
contaminated or tampered with.’” Mills, 194 F.3d at 1112 (quoting United States v.
Cardenas, 864 F.2d 1528, 1531 (10th Cir. 1989)) (indicating testimony of witness that
video is a fair and accurate description of what he saw was sufficient to authenticate video
evidence); see also Cardenas, 864 F.2d at 1531. Trial counsel was not unreasonable or
ineffective for declining to make frivolous objections related to the videos on Petitioner’s
behalf.7
Petitioner insists trial counsel should have objected when the Court did not more
specifically ask during voir dire whether any prospective jurors thought bias against
immigrants might affect their ability to be fair and impartial. The Court asked the
prospective jurors about (1) their experiences with immigration, (2) whether racial bias
might impact their ability to be fair and impartial, and (3) issues the Court did not ask about
but which might affect their ability to be fair and impartial. Voir Dire Tr., 21-22, 30. No
jurors responded to any of those inquiries. Id.
An attorney’s actions during voir dire are considered to be matters of trial
strategy. Teague v. Scott, 60 F.3d 1167, 1172 (5th Cir. 1995). A strategic
decision cannot be the basis for a claim of ineffective assistance unless
counsel’s decision is shown to be so ill chosen that it permeates the entire
trial with obvious unfairness. Id.
Nguyen v. Reynolds, 131 F.3d 1340, 1349 (10th Cir. 1997). Petitioner has failed to
demonstrate trial counsel’s failure to insist the Court question jurors specifically about
7 Petitioner makes the conclusory assertion that by failing to object to admission of the
iPhone video through Officer M.C., counsel deprived Petitioner of his right to confront a
material witness to the case. Petitioner does not further support this conclusory argument.
Construing Petitioner’s argument liberally, Petitioner may be asserting that he was deprived
of the opportunity to confront ICE Officer M.K., who filmed the iPhone video [Doc. No.
186-11]. Petitioner has not demonstrated how he was prejudiced by a lack of Officer M.K’s
testimony. As the Court said, Officer M.C.’s testimony was sufficient to authenticate the
video. The jury saw and heard ample evidence of Petitioner’s assault of the federal officers,
and even if Officer M.K. had testified, Petitioner has not demonstrated such testimony
would give rise to a reasonable probability that the outcome of his trial would have been
different.
immigration bias (in addition to questions about racial bias, questions about their
experiences with immigration, and multiple instructions not to consider Petitioner’s
immigration status) permeated the trial with unfairness.8 The jury saw and heard ample
evidence that Petitioner initiated and carried out an assault on federal officers. Petitioner
has not indicated that but-for this perceived error by trial counsel, the outcome would have
been different.
Petitioner also asserts his trial counsel failed to object to the Court giving an off-
the-record and improper Allen charge to the jury outside Petitioner’s presence. “An Allen
charge is a supplemental instruction given to the jury and designed to encourage a divided
jury to agree on a verdict.” United States v. LaVallee, 439 F.3d 670, 689 (10th Cir. 2006)
(quotation omitted). Allen charges may be improper where they “impose[] such pressure
on the jury such that the accuracy and integrity of their verdict becomes uncertain.” Id.
(quotation omitted). Petitioner claims the Allen charge is recorded on the docket at
Document 49. Doc. No. 212, at p. 16. Document 49 is a sealed record of the notes
8 “The Supreme Court has stated also that asking potential jurors generally whether any
grounds exist that would make them unable to sit fairly and impartially . . . coupled with
the question about bias towards aliens, leaves ‘little reason to believe that a juror who did
not answer this general question would have answered affirmatively a question directed
narrowly at racial prejudice.’” United States v. Murry, 31 F.4th 1274, 1289-90 (10th Cir.
2022) (quoting Rosales-Lopez v. United States, 451 U.S. 182, 193 n.8 (1981)). The Court
finds the same would apply in reverse—the Court’s questions about racial bias, combined
with its general inquiry about other issues that may bear on impartiality, leaves little reason
to believe a juror who did not answer either of those questions in the affirmative would
have answered in the affirmative a question directed narrowly at immigration bias.
Petitioner has therefore failed to establish his trial counsel acted unreasonably in not
objecting to the form of the Court’s questions to the jury, as well as to establish that he was
prejudiced by her failure to do so.
exchanged between the Court and Jury during the trial. There was no Allen charge, and the
Court is hard-pressed to see anything in the notes that could be construed as improper or
coercive. Petitioner’s trial counsel was thus not unreasonable for not objecting to these
notes, and even if she was, Petitioner was not prejudiced by such a failure.
And finally, Petitioner asserts trial counsel was ineffective for failing to impeach
Officer M.C.’s testimony with ICE Policy. Petitioner asserts that had trial counsel provided
evidence of ICE’s Policy, the jury would have learned ICE agents were not following the
policy during the May 8th incident and this would have impeached Officer M.C.’s
testimony. The Court has already addressed this issue—not only is whether ICE was
following its Policy irrelevant to whether Petitioner assaulted federal officers, but ICE
Policy does, in fact, permit reasonable force to obtain a thumbprint on an I-385 form.
Furthermore, the record reflects trial counsel made several attempts to elicit testimony
regarding ICE Policy from Officer M.C. Though the Court allowed counsel some leeway
to draw Officer M.C.’s attention to ICE Policy regarding fingerprinting noncompliant
individuals, the Court cabined her due to the lack of relevance to the assault. Trial Tr., 65-
68. Moreover, the record reflects that though trial counsel asked Officer M.C. about the
purpose of obtaining Petitioner’s fingerprints (which might have led to testimony about the
Policy), Officer M.C. instead testified Petitioner was handcuffed because of pre-assault
indicators he had shown. Id. at 68-70. Even if trial counsel was somehow unreasonable for
failing to adequately bring up ICE Policy at trial, Petitioner was not prejudiced by her
failure to do so. Whatever the reason Petitioner was handcuffed, the jury saw
overwhelming evidence that Petitioner initiated the assault against the federal officers.
Petitioner has failed to establish ineffective assistance of his trial counsel merits the
vacation, setting aside, or correction of his sentence.
c. Petitioner’s Appellate Counsel
The showing required to prove ineffective assistance of appellate counsel is,
if anything, more strict than for trial counsel:
“Claims of appellate-counsel ineffectiveness are often based on counsel’s
failure to raise a particular issue on appeal. Appellate counsel who files a
merits brief need not (and should not) raise every nonfrivolous claim, but
rather may select from among them in order to maximize the likelihood of
success on appeal. Although it is possible to bring a Strickland claim based
on counsel’s failure to raise a particular issue, it is difficult to demonstrate
that counsel was incompetent.”
United States v. Lancaster, No. CR-10-72-D, 2015 WL 8074300, at *3 (W.D. Okla. Dec.
4, 2015) (quoting Upchurch v. Bruce, 333 F.3d 1158, 1163 (10th Cir. 2003)). “[I]f the issue
is meritless, its omission [on appeal] will not constitute deficient performance.” Upchurch,
333 F.3d at 1164 (quotation omitted).
Petitioner asserts his appellate counsel was ineffective for failing to raise a claim
regarding the Court’s failure to question the jury about their opinions on immigrants. As
the Court discussed above, Petitioner has failed to demonstrate lack of a specific question
about immigration permeated the trial with unfairness. His appellate counsel was not
unreasonable for declining to raise a meritless claim on appeal and he has failed to
demonstrate the outcome of his appeal would have been different had appellate counsel
done so. See Mahdi v. Bagley, 522 F.3d 631, 638 (6th Cir. 2008) (“Given that Mahdi’s trial
counsel were not ineffective, Mahdi cannot argue that he suffered prejudice from his
appellate counsel’s failure to raise trial counsel’s decision not to question jurors about
religious and racial bias. No prejudice flows from the failure to raise a meritless claim.”).
The Court also rejects Petitioner’s claim that his appellate counsel was ineffective
for failing to raise a claim that this Court gave a coercive Allen charge. The record reflects
the Court did not give any Allen charge. Such a claim would have been meritless.
Finally, Petitioner argues his appellate counsel was ineffective for failing to
withdraw. He insists he requested appellate counsel withdraw on May 30, 2024, but counsel
continued to represent him against his wishes. Petitioner’s record on appeal, United States
v. Wanjiku, No. 24-6010 (10th Cir. 2024) [hereinafter “ROA”], reflects that he mailed a
Motion to Remove Counsel to the Tenth Circuit on May 30, 2024, and it was docketed but
not filed on June 11, 2024 [ROA, Doc. Nos. 64-1, 64-2]. Also on June 11, appellate counsel
properly filed a “Motion to Withdraw as Defendant-Appellant’s Appointed Appellate
Counsel Pursuant to Anders v. California, 386 U.S. 738 (1967)” [ROA, Doc. No. 65].
Petitioner seems to be under the impression that this was improper. But Anders specifically
states that “if counsel finds [his client’s] case to be wholly frivolous, after a conscientious
examination of it, he should so advise the court and request permission to withdraw. That
request must, however, be accompanied by a brief referring to anything in the record that
might arguably support the appeal.” Anders, 386 U.S. at 744. After submission of an Anders
brief, the
client may then choose to submit arguments to the court. The Court must then
conduct a full examination of the record to determine whether defendant’s
claims are wholly frivolous. If the court concludes after such examination
that the appeal is frivolous, it may grant counsel’s motion to withdraw and
may dismiss the appeal.
United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (citing Anders, 386 U.S. at
744) (internal citations omitted). This is exactly what happened during Petitioner’s appeal.
His counsel did not act unreasonably by, as Petitioner desired, moving to withdraw and
filing an Anders brief to accompany that motion.
Petitioner has “fail[ed] to satisfy the heavy burden of proving ineffectiveness. [His]
contentions are conclusory and fail to specify how [he] was prejudiced by any such alleged
[failures].” Lancaster, 2015 WL 8074300, at *4.
III. Prosecutorial Misconduct
Petitioner argues the prosecutors at trial committed misconduct by presenting false
testimony and violating Brady and Giglio. Prosecutorial misconduct is insufficient to
overturn a conviction unless it “so infect[s] the trial with unfairness as to make the resulting
conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).
Petitioner contends the prosecutor misled the Court by eliciting testimony that ICE
Officers were attempting to take Petitioner’s fingerprints when the assault occurred.
Petitioner points to what he claims are inconsistencies in witness testimony at trial—
Officer M.C. testified ICE Officers put handcuffs on Petitioner to “prep[ him] to go south,
south meaning the detention facility in Texas,” Trial Tr., 70, while Officer C.V. testified he
was “trying to fix [Petitioner’s] hand” after he was cuffed and was not “at that time” trying
to “ink or place ink on his fingers.” Id. at 90-91. Petitioner also points to Special Agent
C.B.’s testimony at the preliminary hearing that Petitioner was handcuffed to obtain his
thumbprint on certain forms by force, Prelim. Hr’g Tr., 15-16,9 and the testimony of Special
Agent R.B at the grand jury proceedings, Grand Jury Tr., 5, 7. These inconsistencies are,
according to Petitioner, so false and misleading that they raise questions as to the validity
of the indictment and conviction.
A prosecutor violates the Due Process Clause if she “knowingly fail[s] to correct
perjured testimony in [her] case, even when the evidence [goes] only to the credibility of
the witness.” United States v. Garcia, 793 F.3d 1194, 1207 (10th Cir. 2015) (citing Napue
v. Illinois, 360 U.S. 264, 269 (1959)). Such a violation occurs when “(1) a government
witness committed perjury, (2) the prosecution knew the testimony to be false, and (3) the
testimony was material.” Id. (citing United States v. Caballero, 277 F.3d 1235, 1243 (10th
Cir. 2002)). “The false testimony is material ‘unless failure to disclose [the perjury] would
be harmless beyond a reasonable doubt.’” Id. (quoting United States v. Bagley, 473 U.S.
667, 680 (1985)). “[A] conviction obtained by the knowing use of perjured testimony is
fundamentally unfair, and must be set aside if there is any reasonable likelihood that the
false testimony could have affected judgment of the jury.” United States v. Agurs, 427 U.S.
97, 103 (1976).
Petitioner insists the allegedly false theories as to why he was placed in handcuffs
obscured the fact that ICE agents did so to obtain his signature by force. This, according to
Petitioner, was against ICE Policy. This argument is deficient for a few reasons.
9 Even if there were deficiencies in the preliminary hearing, they were mooted by the grand
jury’s indictment.
First, Petitioner has failed to credibly argue any of the testimony regarding why his
hands were placed behind his back was perjured or that the prosecution knew it to be so.
“It is not enough that there occurred at the trial mere inconsistencies or conflicts in the
testimony of a witness or witnesses.” Smith v. Oklahoma, 418 F. Supp. 907, 908 (W.D.
Okla. June 1, 1976) (citing Anderson v. United States, 403 F.2d 451 (7th Cir. 1968)). “The
existence of such conflicts or inconsistencies does not of itself support a conclusion of
perjury much less the knowing use of perjured testimony.” Id. (citing Lauer v. United
States, 320 F.2d 187 (7th Cir. 1963)).
Second, even if the testimony was false, and Petitioner could establish the
prosecution knowingly used it, “in light of the overwhelming evidence of guilt produced
at trial and the relatively innocuous nature of the [testimony], there exists no reasonable
likelihood” that the jury was prejudiced or that Petitioner’s right to a fair and impartial trial
was impaired. Caballero, 277 F.3d at 1246. Whether the officers were placing Petitioner’s
hands being his back to transport him south, to forcibly obtain his fingerprints for a form,
or in reaction to the pre-assault indicators Petitioner was displaying, such testimony is
immaterial to whether he assaulted the federal officers.
In summary, the petitioner’s contention is completely frivolous. The falsity
of the testimony complained of cannot be established. The allegation of
knowing use is wholly conclusory and speculative. The evidence of the
inconsistency was available to and known to the defense. Finally it cannot be
said that the inconsistent testimony “could . . . in any reasonable likelihood
have affected the judgment of the jury . . .” Napue, 360 U.S. at 271.
Smith, 418 F. Supp. at 909 (citation modified).10
10 See also United States v. Gordon, 657 F. App’x 773, 779 (10th Cir. 2016) (unpublished):
Next, Petitioner asserts the prosecutors committed Brady/Giglio violations by
withholding the full surveillance videos both inside and outside of Petitioner’s cell at the
ERO, the full iPhone video, and the immigration forms ICE officers marked as “refused to
sign.” “To establish a Brady violation, the defendant must prove the prosecution suppressed
evidence, the evidence was favorable to the defense, and the evidence was material.”
United States v. Erickson, 561 F.3d 1150, 1163 (10th Cir. 2009).
First, Petitioner concedes in his Reply that he is not addressing the video inside his
cell. Doc. No. 212, at p. 22.
Second, with respect to the immigration forms, Petitioner has failed to demonstrate
how they would be favorable to him. Petitioner insists that had the forms been produced at
trial, he could have proved the ICE agents were not engaged in their official duties when
the assault occurred. He proclaims the forms will prove no thumbprint is required in place
Gordon also claims the government knowingly presented the perjured
testimony of several key factual witnesses at trial or failed to correct the false
testimony when it occurred. As the judge properly concluded in denying this
claim, “Gordon . . . points to nothing more than apparent inconsistencies in
the witnesses’ testimonies” which alone do not constitute perjury and fail to
show the prosecution knew the testimony was false. (R. at 252.) See Tapia v.
Tansy, 926 F.2d 1554, 1563 (10th Cir. 1991) (“Contradictions and changes in
a witness’s testimony alone do not constitute perjury and do not create an
inference, let alone prove, that the prosecution knowingly presented perjured
testimony.”); see also United States v. Frazier, 429 F. App’x 730, 734 (10th
Cir. 2011) (unpublished) (“Discrepancies in testimony are common, and can
generally be explained as resulting from human failings short of intentional
lying. To reverse Defendant’s conviction on this ground would bring many,
perhaps most, convictions into question. We will reserve such reversals for
cases in which perjury and knowledge of perjury are either clear on the record
or have been found by the lower court.”).
of a signature. This is false. Officer M.C. testified at trial that the I-385 form required a
thumbprint. ICE Policy permits force to be used to take a thumbprint on I-385 forms. Doc.
No. 186-13. And in any event, the forms Petitioner needed to fill out were irrelevant to
whether he assaulted the federal officers. The overwhelming evidence showed the jury the
ICE Officers were engaged in their official duties when Petitioner initiated the assaults
against them. Thus, had the forms been relevant to the issues at trial, and had they been
produced to the jury, it would not have been favorable to Petitioner.
Third, the Court cannot credit Petitioner’s conclusory assertions that portions of the
(1) video of Petitioner outside his cell at the ERO and (2) the iPhone video were missing.
The Government has repeatedly stated it produced all videos to Petitioner and his counsel.
See Doc. Nos. 58, 207. Beyond Petitioner’s vehement insistence that the videos were edited
or portions of them were withheld, he offers no support for these proclamations.
Petitioner has failed to credibly establish any claims of prosecutorial misconduct
that warrant relief pursuant to 28 U.S.C. § 2255.
IV. Judicial Abuse of Discretion
And finally, Petitioner asserts the Court abused its discretion by failing to ask the
jurors about immigration bias, denying his requests for video evidence, providing an
improper Allen charge, and denying Petitioner a new trial without addressing his
allegations that the jury was denied access to immigration forms and full videos. The Court
did not abuse its discretion in these matters for the reasons already discussed above.
Petitioner also asserts this Court abused its discretion by “suggesting to mislead the
jury why petitioner was at the ERO office.” Petitioner appears to be claiming that because
the first detainer under which he was held at the ERO was later cancelled, he was illegally
arrested. The Court limiting evidence on this point was, according to Petitioner, an abuse
of discretion that hid ICE’s misconduct. As this Court has said many times, the reasons for
Petitioner’s presence at the ERO on the day of the assault were irrelevant to whether he
assaulted federal officers. This Court did not abuse its discretion in cabining the testimony
and evidence offered with respect to the ICE detainers and Petitioner’s immigration status.
Accordingly, this Court did not abuse its discretion with respect to any of the above
matters, and relief is not warranted on these grounds pursuant to 28 U.S.C. § 2255.
V. Petitioner’s Other Motions
Petitioner has moved to expand the record under Rule 7(a) of the Rules Governing
Section 2255 Proceedings: “If the petition is not dismissed, the judge may direct the parties
to expand the record by submitting additional materials relating to the petition.” Petitioner
seeks (1) the chain of custody of the surveillance videos, (2) immigration forms marked
“refused to sign,” and (3) the full iPhone video. As this Court has already stated, the
existing record clearly shows Petitioner is not entitled to relief. Moreover, the videos have
already been produced in full. Petitioner has not demonstrated that a chain of custody is
necessary or helpful to his claims. The immigration forms are irrelevant and would serve
no purpose. Accordingly, an expansion of the record is not warranted and Petitioner’s
request is DENIED.
Petitioner has moved for this Court to recuse itself from his case pursuant to 28
U.S.C. § 455(a), (b)(1). “Any . . . judge . . . of the United States shall disqualify himself in
any proceeding in which his impartiality might reasonably be questioned.” § 455(a). “He
shall also disqualify himself . . . [w]here he has a personal bias or prejudice concerning a
party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”
§ 455(b)(1). The inquiry requires consideration of whether “sufficient factual grounds exist
to cause a reasonable, objective person, knowing all the relevant facts, to question the
judge’s impartiality.” United States v. Pearson, 203 F.3d 1243, 1277 (10th Cir. 2000)
(citation omitted). “The standard is purely objective. The inquiry is limited to outward
manifestations and reasonable inferences drawn therefrom.” United States v. Cooley, 1 F.3d
985, 993 (10th Cir. 1993).
Ordinarily, when a judge’s words or actions are motivated by events
originating within the context of judicial proceedings, they are insulated from
charges of bias. Thus, adverse rulings cannot in themselves form the
appropriate grounds for disqualification. Likewise, a judge’s ordinary efforts
at courtroom administration, even if stern and short-tempered, are “immune”
from charges of bias and partiality. Although a judge’s remarks during the
course of a trial may be critical, disapproving, or hostile to a party, usually
they will not support a partiality charge.
United States v. Nickl, 427 F.3d 1286, 1298 (10th Cir. 2005) (internal citations, quotation
marks, and brackets omitted). “Judges not only have a strong duty to recuse when
appropriate, but also a strong duty to sit, and the statute ‘must not be so broadly construed
that it becomes, in effect, presumptive, so that recusal is mandated upon the merest
unsubstantiated suggestion of personal bias or prejudice.’” United States v. Wells, 873 F.3d
1241, 1251 (10th Cir. 2017) (quoting Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995)).
Petitioner claims this Court abused its discretion and violated his rights throughout
the proceedings, including by misleading the jury regarding why Petitioner was at the ERO
office, failing to ask jurors about immigration bias, and “assuming the role of the
prosecution” by remarking about sentencing guideline adjustment choices. Petitioner
already raised these arguments in a previously filed Motion to Recuse [Doc. Nos. 153, 153-
1]. This Court rejected those arguments, finding most of the allegations Petitioner made
were premised on adverse rulings which cannot themselves form the basis for recusal [Doc.
No. 156]. Nickl, 427 F.3d at 1298. The Court also found the remark about sentencing could
not form the basis for recusal. Id. The Court will quote from its Order denying Petitioner’s
earlier Motion to Recuse:
To connect these rulings and remarks to the undersigned’s alleged partiality,
Defendant implies knowledge and nefarious motive without any factual
support. These conclusory allegations are insufficient to show partiality or
bias, and therefore, Defendant’s allegations do not warrant recusal.
Doc. No. 156, at pp. 2-3.
Petitioner also accuses the Court of giving a coercive Allen instruction to the jury
off the record. The Court has already rejected this argument. The Court did not give an
Allen charge. Petitioner’s conclusory allegation of an Allen charge is insufficient to show
partiality or bias and does not warrant recusal.
Finally, Petitioner asserts recusal is warranted because he has filed an ethical
complaint against the Court. “Recusal in a court case is not required because the judge is
the subject of a misconduct proceeding filed by a litigant in that case.” Smith v. Kan. Dep’t
of Corr., 455 F. App’x 841, 844 (10th Cir. 2011) (unpublished).
“[Petitioner] thinks that the minute she filed the misconduct complaint
against [the district court judge], he became obligated to step down from any
case involving her, but this is not correct. She has not cited any rule or
decision supporting the sweeping idea that a judge must automatically
disqualify herself from a lawsuit simply because a disgruntled litigant
currently alleges (or has previously alleged) judicial misconduct. Indeed, if
that were the rule, litigants displeased with Judge A’s adverse rulings could
easily manipulate the system by filing a misconduct complaint, thereby
disqualifying Judge A from hearing the case, in the hopes that the case would
then be assigned to Judge B who might be more sympathetic to their cause.”
Id. (quoting In re Mann, 229 F.3d 657, 658-59 (7th Cir. 2000)). Merely because the
undersigned is the subject of a misconduct proceeding does not warrant recusal.
Accordingly, the Court finds that based on the totality of the allegations and circumstances,
a reasonable, objective person would not question the undersigned’s impartiality.
Therefore, Defendant’s Motion to Recuse is DENIED.
Finally, Defendant has also filed a Motion to Compel [Doc. No. 201] in which he
asks the Court to compel the Government to provide the full surveillance video from
outside his ERO holding cell. For the reasons already discussed, and the Government’s
continued assertions that it has provided all available footage, this request is DENIED.
Included in his Motion to Compel is Petitioner’s request that this Court take judicial
notice of “a new development in a civil action that he has since filed against the ICE agents
that testified against him in this case. . . This judicial notice is a showing to the court that
ICE agents have confessed by their failure to respond to the allegations in the civil action,
that they were not engaged in their official duties on May 8, 2023, an element required to
make a finding of guilt on assaulting federal officers.” Doc. No. 201, at p. 2. Construing
Petitioner’s argument liberally, the Court takes him to be referencing another case he has
filed in the Western District: Wanjiku v. Kinnison, et al., No. 25-CV-00354-PRW (W.D.
Okla. 2025). The record in that case reflects the Defendant ICE Officers did not respond to
the allegations because they had not been served properly [No. 25-CV-00354, Doc. Nos.
22, 24, 27]. Petitioner was ordered to serve the Defendants by April 29, 2026 [No. 25-CV-
00354, Doc. No. 27]. Petitioner has objected to that Order [No. 25-CV-00354, Doc. No.
29]. Even if it were proper to do so, at this point the Court cannot conclude the ICE Agents
have admitted anything that might affect this Court’s decision in determining the outcome
of his § 2255 motion. Thus, Petitioner’s request that this Court take judicial notice of
something that has not happened is DENIED.
CONCLUSION
Accordingly, Petitioner’s Motion to Vacate [Doc. No. 186] is DENIED. The motions
included in his Motion to Vacate are DENIED. His Motion to Compel [Doc. No. 201] is
also DENIED.
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Proceedings, the Court
must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant for habeas relief. A certificate of appealability may issue only if the applicant has
made “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Where the district court rejects the claim on the merits, the petitioner “must demonstrate
that reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court finds this
standard is not met in this case and a COA is therefore denied.
IT IS SO ORDERED this 6" day of May, 2026.
DAVID L. RUSSELL
UNITED STATES DISTRICT JUDGE
28