Petition for Writ of Certiorari — William J. Wise, Petitioner v. United States

Supreme Court briefJan 27, 2025

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No. ___________

In the Supreme Court of the United States

October 2025 Term

__________________________________________

WILLIAM J. WISE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

________________________________________

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Geoffrey M. Jones

Cal. State Bar No. 187373

Counsel of Record, appointed under the

Criminal Justice Act of 1964

773 Center Blvd., No. 69

Fairfax, CA 94978

Tel: (415) 517-3569

email: gffjones@comcast.net

Attorney for Petitioner

William J. Wise

Question Presented for Review

The sole question raised by this Petition for Certiorari is whether the Ninth

Circuit Court of Appeals fundamentally erred by dismissing the appeal of

petitioner’s amended section 2255 motion to vacate sentence as an impermissible

second or successive petition, in direct contravention of this Court’s opinion in

Panetti v. Quarterman, 551 U.S. 930 (2007), and the Ninth Circuit’s own

published opinion in United States v. Jackson, 21 F.4th 1205 (9th Cir. 2022),

among other authorities.

Parties to the Proceeding

The parties to the proceeding are only those listed in the caption: the

petitioner, William J. Wise, and the United States Government.

List of Directly Related Proceedings

The following list contains all proceedings in the federal trial and appellate

courts directly related to the instant case.

United States v. Wise, Northern District of California, No. 12-cr-111-EMC,

in which judgment was entered on May 11, 2022. The district court’s

unpublished order is included in the Appendices to the instant petition for

certiorari as Appendix C.

United States v. Wise, United States Court of Appeals for the Ninth Circuit,

No. 22-16165 in which judgment was entered on September 13, 2024, and

petitioner’s petition for rehearing was denied on November 22, 2024. The

Ninth Circuit’s unpublished decision is included in the Appendices as

Appendix B, and the Ninth Circuit’s order denying the petition for rehearing

is at Appendix A.

TABLE OF CONTENTS

Page

INDEX TO APPENDICES

iii

TABLE OF AUTHORITIES

Opinions Below

Jurisdiction

Constitutional and Statutory Provisions Involved in Case

2-3

STATEMENT OF THE CASE

Procedural Background

Factual Background

REASONS FOR GRANTING THE WRIT

Introduction

II.

The Ninth Circuit Court of Appeals Erred in Construing as

Second or Successive Petitioner’s Motion to Amend His

Section 2255 Motion to Include a Newly Ripened, Not

Previously Available Claim of Ineffective Assistance of

Counsel in Violation of the Sixth Amendment.

Pertinent Legal Principles.

The District Court’s Decision.

The Decision of the Court of Appeals.

The Court of Appeals Fundamentally Erred, Failing to Vindicate

Petitioner’s Fifth and Sixth Amendment Rights to Effective

Assistance of Counsel During the Plea Process, by Rejecting His

Amended Section 2255 Motion as Second or Successive.

CONCLUSION

APPENDIX

INDEX TO APPENDICES

APPENDIX A:

Order of the United States Court of Appeals for the Ninth Circuit

Denying Petition for Panel Rehearing and Petition for Rehearing En Banc,

Filed November 22, 2024.

APPENDIX B:

Unpublished Memorandum Opinion of the United States Court of Appeals for the

Ninth Circuit, Filed September 13, 2024.

APPENDIX C:

Order of the United States District Court for the Northern District of California

Denying Motion for Leave to File Amended Motion to Vacate Sentence under 28

U.S.C. § 2255, Filed May 11, 2022.

iii

TABLE OF AUTHORITIES

CASES

Boykin v. Alabama

395 U.S. 238 (1969)

Brown v. Atchley

76 F.4th 862 (9th Cir. 2023)

22, 25

Brown v. Muniz

889 F.3d 661 (9th Cir. 2018)

14-15, 21, 25

Ford v. Wainwright

477 U.S. 399 (1986)

Gage v. Chappell

793 F.3d 1159 (9th Cir. 2015)

Hill v. Lockhart

474 U.S. 52 (1985)

17, 23

Lambert v. Blodgett

393 F.3d 943 (9th Cir. 2004)

Panetti v. Quarterman

551 U.S. 930 (2007)

passim

Strickland v. Washington

466 U.S. 668 (1984)

passim

Tong v. United States

81 F.4th 1022 (9th Cir. 2023)

Tollett v. Henderson

411 U.S. 258 (1973)

17-18

United States v. Buenrostro

638 F.3d 720 (9th Cir. 2011)

15, 21, 25

United States v. Jackson

21 F.4th 1205 (9th Cir. 2022)

passim

CONSTITUTIONAL PROVISIONS, STATUTES

& OTHER SOURCES

United States Constitution

Amend. V

Amend. VI

2, 17-18

passim

18 U.S.C.

§ 1341

§ 1343

§ 1349

§ 1957

§ 7201

28 U.S.C.

§ 1254(1)

§ 1291

§ 2253

§ 2255(a)

§ 2255(d)

§ 2255(h)

passim

No. ___________

In the Supreme Court of the United States

October 2025 Term

__________________________________________

WILLIAM J. WISE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner respectfully prays that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the Ninth Circuit.

Opinions Below

The unpublished opinion of the United States Court of Appeals for the Ninth

Circuit appears at Appendix (“App.”) B. The district court’s order denying

petitioner’s section 2255 motion to vacate sentence appears at App. C. Finally, the

Ninth Circuit’s order denying petitioner’s petition for rehearing appears at App. A.

Jurisdiction

The district court had jurisdiction pursuant to 18 U.S.C. § 2255(a). The

Ninth Circuit Court of Appeals had jurisdiction pursuant to 28 U.S.C. §§ 1291,

2253, and 2255(d). The Ninth Circuit entered judgment on September 13, 2024,

affirming the district court’s denial of petitioner’s section 2255 motion to vacate

sentence. See App. B at 3, 5. Petitioner timely filed a motion for panel rehearing

and for rehearing en banc with the Ninth Circuit on September 21, 2024, which the

lower court denied on November 22, 2024. See App. A at 1.

Petitioner invokes this Court’s jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Constitutional Provisions

The Fifth Amendment to the United States Constitution guarantees that

“[n]o person shall be ... deprived of life, liberty, or property, without due process

of law ….” U.S. Const., Amend. V.

The Sixth Amendment provides in pertinent part: “In all criminal

prosecutions, the accused shall enjoy the right … to have the Assistance of

Counsel for his defence.” U.S. Const., Amend. VI.

Statutory Provisions

28 U.S.C. § 2255(a) provides: “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 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(h) states: “A second or successive motion must be

certified as provided in section 2244 by a panel of the appropriate court of appeals

to contain –

(1) newly discovered evidence that, if proven and viewed in light of the

evidence as a whole, would be sufficient to establish by clear and convincing

evidence that no reasonable factfinder would have found the movant guilty of the

offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously unavailable.”

STATEMENT OF THE CASE

Procedural Background

This petition for certiorari arises out of an appeal of the district court’s

denial of a motion to amend a previously filed motion to correct sentence under 28

U.S.C. § 2255(a), which the district court denied on the merits, but which the Ninth

Circuit rejected as a second or successive motion under section 2255(h).

On February 21, 2012, the government filed an indictment in twenty-three

counts charging Mr. Wise (hereinafter referred to as “petitioner”) and his codefendant with offenses relating to a fraudulent investment scheme. ER-174-187.

Seventeen of the twenty-three counts charged petitioner with the following

offenses: conspiracy to commit mail and bank fraud (18 U.S.C. § 1349) (count 1),

mail fraud (§ 1341) (counts 2-13), wire fraud (§ 1343) (counts 14-16), and money

laundering (§ 1957) (count 17). ER-176, 182-184. Petitioner was also charged with

a single count of tax evasion (26 U.S.C. § 7201) in a related case that was

transferred from the Eastern District of North Carolina, No. 12-cr-00642-EMC.

ER-229 (docket sheet); ER-150 (Plea Hearing); see ER-160 (plea agreement).

Petitioner’s co-defendant was indicted in 22 counts, including all of the offenses

for which petitioner was indicted other than the single count of money laundering.

ER-178, 182-187.

On September 12, 2012, petitioner pleaded guilty to the 17 counts in the

indictment, and the tax evasion count from the related case. ER-158; see ER-160.

Nearly two and a half years later, on February 4, 2015, the district court sentenced

petitioner to a term of 262 months in federal prison, with a three-year term of

supervised release. ER-100-101; see Dkt 119 (judgment).1

On February 3, 2016, petitioner filed a motion to vacate sentence, pursuant

to 28 U.S.C. § 2255(a), raising claims that his Sixth Amendment right to counsel

was violated by his attorney’s conflict of interest and ineffective representation as

to petitioner’s cooperation with the government before sentencing, and that the

government violated the plea agreement. Dkt #160 at 4-5; Dkt #161 at 2, 12, 15,

19-20. The district court initially ordered an evidentiary hearing to address

petitioner’s claims of ineffective assistance (Dkt #195) but then granted the

government’s motion for reconsideration (Dkt #208) and denied petitioner’s

section 2255 motion without a hearing. Dkt #209. This Court affirmed the district

court’s ruling in Appeal No. 17-15129. Dkt #213.

Documents available on the district court’s docket through the CM/ECF system

(if not included in the appellant’s excerpts of record) are cited as “Dkt” followed

by their docket number (in Northern District of California Case No. 12-cr-00111EMC), and by the page number of the PDF file where appropriate.

In April of 2022, shortly after he learned that his request to be transferred to

Canada to serve the remainder of his sentence there had been denied by the

Department of Justice (ER-23), petitioner filed a motion to amend his section 2255

motion to add the newly ripened claim that his attorney failed to competently

advise and represent petitioner during the plea proceedings with respect to the

United States’s promise that it would not oppose his application to transfer to a

Canadian prison, including counsel failing to thoroughly review the plea agreement

with petitioner and properly advise him about the agreement’s meaning and

limitations. ER-20-24; see ER-10-19.

On May 11, 2022, the district court denied petitioner’s motion to amend his

section 2255 motion on the merits. App. C at 4. Following the district court’s

denial of his motion for reconsideration (ER-4), petitioner filed a timely notice of

appeal on August 1, 2022. ER-188. On August 15, 2022, the district court granted

a certificate of appealablity as to the issue whether petitioner’s appointed attorney

provided ineffective assistance during the plea proceedings regarding the United

States’ promise not to oppose petitioner’s transfer to Canadian prison. See ER-2-3;

see also ER-20-23.

On September 13, 2025, the Ninth Circuit Court of Appeals affirmed the

district court’s denial of petitioner’s motion to amend his section 2255 motion,

concluding that the motion was an impermissible second or successive petition

under section 2255(h). App. B at 3-5.

This Petition for Writ of Certiorari is timely under Rule 13(3) of the rules of

this Court, as the 90th day from the Ninth Circuit’s denial of petitioner’s petition

for panel rehearing and rehearing en banc falls on February 20, 2025.

Factual Background

At the change of plea hearing on September 12, 2012, petitioner affirmed

during the plea colloquy that the government would be able to prove the following

facts, which are set forth in Paragraphs 2.a. through 2.f. of the plea agreement (but

which were not recited during the plea hearing):

With respect to Count One of the Indictment (conspiracy to commit mail and

wire fraud), I agreed with my co-defendant, Jacquline Hoegel, to commit

mail and wire fraud by engaging in a long-running scheme to defraud

investors by selling fraudulent certificates of deposit (CDs) issued by three

entities: (1) Millennium Bank; (2) United Trust of Switzerland (“UT of S”);

and (3) Sterling Bank and Trust (“Sterling”) (collectively, the “Millennium

Entities”). More than 1,200 investors purchased fraudulent CDs issued by

the Millennium Entities, all of which promised guaranteed rates of return

that co-defendant Hoegel and I falsely informed investors were and would

be generated by overseas investments. As co-defendant Hoegel and I both

knew, the Millennium Entities did not use investor funds to make overseas

investments; instead, as we both knew, the Millennium Entities were a Ponzi

scheme through which earlier investors’ guaranteed interest payments

consisted of later investors’ funds. I exercised ultimate control over the

Millennium Entities, with co-defendant Hoegel acting as my co-conspirator

and right-hand person in running the scheme to defraud.

With respect to Counts Two through Thirteen of the Indictment (mail fraud),

along with co-defendant Hoegel, I engaged in the above-described scheme to

defraud investors via fraudulent CDs issued by the Millennium Entities. In

furtherance of the scheme to defraud investors, co-defendant Hoegel and I

directed others working for the Millennium Entities to tell certain investors

to mail their account applications and personal checks (to purchase

fraudulent CDs) to the Napa, California, office run by co-defendant Hoegel.

The Napa, California, office run by co-defendant Hoegel was known by

various names throughout its existence, including Millennium Offshore

Advisors, Globalized Services, and Global Advisors (“Millennium/Global”).

Millennium/Global received account applications and personal checks via

U.S. Mail as well as interstate commercial carrier, such as Federal Express.

In addition, co-defendant Hoegel and I directed Millennium/Global

employees to send post-dated interest payment checks to certain investors

via U.S. Mail and interstate commercial carrier. Counts Two through Five

and Seven through Twelve represent checks sent by investors to

Millennium/Global via U.S. Mail or interstate commercial carrier. Counts

Six and Thirteen represent post-dated interest payment checks sent from

Millennium/Global to investors via U.S. Mail or interstate commercial

carrier.

With respect to Counts Fourteen through Sixteen of the Indictment (wire

fraud), in furtherance of the above-described scheme to defraud investors,

co-defendant Hoegel and I (and others working at our direction) told certain

investors to wire funds from their personal accounts to accounts in the name

of UT of S at Washington Mutual in Las Vegas, Nevada, and Napa,

California. Counts Fourteen through Sixteen represent interstate wire

transfers initiated by investors who purchased fraudulent CDs.

With respect to Count Seventeen of the Indictment (money laundering),

knowing that the money in the Bank of America account ending in -9544

represented proceeds of the above-described scheme to defraud investors, I

directed an employee working for Millennium/Global to transfer $15,000

from that Bank of America account to an account in the name of L.W., for

L.W.’s personal use.

I agree that I knowingly participated in the above-described scheme to

defraud investors from approximately 1999 to late March 2009, and that,

during this time, I intended to defraud the investors. I further agree that

between January 2004 and March 2009, via the Millennium Entities, codefendant Hoegel and I caused the sale of more than $129.5 million worth of

fraudulent CDs, which caused investors to suffer actual losses of more than

$75 million.

I agree that in 2008, I earned significant income from the above-described

scheme to defraud investors, that I was aware that I had $1,045,250 of tax

due and owing to the United States based on that income, and that I willfully

took affirmative steps to evade or defeat that tax due and owing. For

example, I used cash extensively, and I failed to maintain any books and

ledgers for income and expenditures, as are routinely kept in the normal

course of business. In addition, I used my income – both cash and

otherwise – to pay debts owed to creditors other than the IRS (such as

making interest payments on a private jet, and paying for construction and

furnishings on a large personal property in St. Vincent and the Grenadines).

ER-163-65 (plea agreement); see ER-156-58 (plea hearing).

REASONS FOR GRANTING THE WRIT

I. Introduction.

Petitioner seeks a writ of certiorari in the instant case as to a single issue of

exceptional importance, which turns on the Ninth Circuit’s erroneous application

of federal law in construing petitioner’s motion to vacate sentence based on his

appointed attorney’s ineffective assistance of counsel as an impermissible second

or successive petition under section 2255(h).

Petitioner is a 73-year old Canadian man with no criminal record of any sort

prior to entering his guilty plea in this case. Although he earned a Canadian law

degree in the 1970s, prior to this case petitioner had no experience with the

criminal justice system, either in Canada or America.

Petitioner was residing in Toronto when he learned he had been indicted in

this matter, and through a Canadian lawyer he negotiated an agreement with the

government whereby he would waive formal extradition, fly to San Francisco, and

immediately self-surrender to federal authorities. It was contemplated that

petitioner would plead guilty and cooperate with the government against other

participants in the fraud scheme. A key promise from the government was that the

United States would not oppose petitioner’s application for transfer to a Canadian

prison, pursuant to treaty, after he had served a third of his sentence in federal

prison. For example, in an email from AUSA Tracie Brown to petitioner’s

Canadian attorney dated March 30, 2012, Brown wrote

I have authority to agree that the United States will not oppose [petitioner’s]

application for a transfer to Canada, provided that he may not apply for such

a transfer until he has served at least 1/3 of his sentence or 54 months (4.5

years) in the United States, whichever is longer. The government’s

agreement on this point is subject to [petitioner] (a) voluntarily surrendering

in San Francisco no later than April 16, 2012; (b) immediately going into

custody; and (c) not breaching any terms of the plea agreement we

ultimately execute.

ER-173.

One reason this promise was material to petitioner’s decision is that Canada

liberally accepts unopposed transfer requests from its citizens and offers parole to

nonviolent offenders after they complete a third of their prison sentence.

In March of 2012, before petitioner had travelled to San Franciso and while

the negotiations around his self-surrender were taking place, an attorney (Paul

Wolf) was appointed to represent petitioner in the Northern District of California.

After petitioner flew to San Francisco and voluntarily surrendered, on April 16th,

the Canadian attorney was no longer involved in the case. Represented by new

counsel, petitioner maintained his intention to plead guilty and cooperate with the

government, based on the understanding he had reached with AUSA Brown prior

to his surrender. While petitioner was in custody prior to pleading guilty, on

multiple occasions AUSA Brown assured him, with his attorney present, that his

right to apply for an unopposed transfer to Canada would be honored, including

telling him that the promise “was already cleared in Washington.” Also during this

period, petitioner was assured by his attorney, Wolf, that his right to transfer would

be preserved and that he should trust the promises made to him by AUSA Brown.

With the plea hearing set for September 12, 2012, petitioner had limited

contact with his attorney, despite petitioner’s repeated requests to meet to discuss

the plea agreement. On September 12th, Wolf met with petitioner at the courthouse

before the change of plea hearing, in order to show him the final plea agreement

and discuss petitioner’s concerns about it. In order to allay petitioner’s concerns,

Wolf invited AUSA Brown to attend the tail end of the meeting. However, Wolf

arrived late for their meeting, and they only had 10-15 minutes to discuss the plea

agreement. They had not finished going through the document when ASUA Brown

arrived.

With the plea hearing about to commence, Brown assured petitioner that his

cooperation with the government had thus far met “the gold standard” and that he

would receive a sentence that was “nowhere near 20 years.” In response to

petitioner’s question, Wolf assured him that his “right to unequivocally transfer to

Canada” was secured and that he shouldn’t worry about it. This assurance by

petitioner’s attorney mirrored the promises petitioner had received from AUSA

Brown since before he self-surrendered and was taken into custody.

Petitioner signed the plea agreement and pleaded guilty on September 12,

2012. While the plea agreement included the promise that the United States would

not oppose petitioner’s transfer to Canada, the plea agreement also included a

separate, boilerplate provision (Paragraph 15) stating that the government’s

promises in the agreement bind only the local U.S. Attorney’s Office.

Not until late 2021 was petitioner able to discover that, contrary to what he

thought he had been promised, the Department of Justice had vetoed his transfer

request, citing as reasons the seriousness of the offense and its opinion that

petitioner was a domicile of the United States, apparently because he has been

incarcerated here since his arrest in 2012. Based on this new development in the

case, petitioner brought the instant motion to amend his previously filed 2255

motion to add the claim that his attorney was ineffective for failing to competently

represent and advise him with respect to the government’s promise that it would

not oppose his transfer to Canada.

The district court addressed petitioner’s claim of ineffective assistance of

counsel on the merits, and erred by denying the motion to amend by ignoring a

number of critical factual allegations, and failing to hold an evidentiary hearing in

order to vet those allegations, which demonstrate that petitioner’s attorney was

ineffective for failing to thoroughly review the plea agreement with him and

explain the limitation in Paragraph 15, by encouraging him to rely on the repeated

off-the-record promises and assurances from AUSA Brown that his transfer to

Canada would not be opposed by the United States Government, and for failing to

take other measures to protect petitioner’s interests.

Despite the district court’s ruling on the merits of petitioner’s claim, the

Ninth Circuit erroneously construed petitioner’s motion to amend his previously

filed section 2255 motion as second or successive under section 2255(h). This

ruling by the Ninth Circuit was in clear violation of well-established principles of

federal law: Contrary to the Ninth Circuit’s conclusion, petitioner’s claim of

ineffective assistance of counsel, under Strickland v. Washington, was not yet ripe

at the time he entered his guilty plea because the prejudice required to support that

claim (i.e., Strickland’s second prong) did not occur until November 5, 2021, when

the Department of Justice vetoed petitioner’s request to transfer to a Canadian

prison, which was well after his initial, first-in-time section 2255 motion had been

denied. Thus, the factual predicate for petitioner’s claim of ineffective assistance of

counsel did not exist until November 5, 2021, and he filed his motion to amend

shortly after that date, in April of 2022. For this reason, “the facts underlying the

claim” cannot be said to have “occurred by the time of the initial petition.” Brown

v. Muniz, 889 F.3d 661, 667 (9th Cir. 2018). Moreover, the Ninth Circuit’s ruling

directly contravenes this Court’s decision in Panetti v. Quarterman, 551 U.S. 930

(2007), as well as its own published precedent, United States v. Jackson, in which

the court held that a second-in-time section 2255 motion does not constitute a

second or successive petition where “the factual circumstances underlying [the]

motion did not occur until after his first § 2255 petition had been resolved.” United

States v. Jackson, 21 F.4th 1205, 1212 (9th Cir. 2022).

II.

The Ninth Circuit Court of Appeals Erred in Construing as Second or

Successive Petitioner’s Motion to Amend His Section 2255 Motion to

Include a Newly Ripened, Not Previously Available Claim of Ineffective

Assistance of Counsel in Violation of the Sixth Amendment.

Pertinent Legal Principles.

Under the AEDPA, 28 U.S.C. § 2255(h), a petitioner “may file a ‘second or

successive’ motion only if the court of appeals certifies that the motion contains

newly discovered, dispositive evidence or relies on a new constitutional rule made

retroactive to collateral proceedings.” Tong v. United States, 81 F.4th 1022, 1024

(9th Cir. 2023). However, a previously filed section 2255 motion may be amended

to add a new claim where “the facts underlying the [new] claim” cannot be said to

have “occurred by the time of the initial petition.” Brown, 889 F.3d at 667; see

United States v. Buenrostro, 638 F.3d 720, 725-26 (9th Cir. 2011). For example,

under the Ninth Circuit’s decision in United States v. Jackson, a new claim added

by amendment to an earlier filed section 2255 motion is not considered a second or

successive petition where “the factual circumstances underlying [the] motion did

not occur until after his first § 2255 petition had been resolved.” Jackson, 21 F.4th

at 1212.

The District Court’s Decision.

The district court denied petitioner’s motion for leave to amend his section

2255 motion on the basis that amendment would be futile because there was no

merit to the claim of ineffective assistance of counsel that he wished to add to his

earlier-filed motion to vacate. App. C. at 3-4. In denying the motion, the district

court reasoned as follows: First, the plea agreement clearly stated that it only

bound the United States Attorney’s Office, as opposed to other agencies of the

United States; second, petitioner stated during his plea colloquy that the

government had made no promises other than those contained in the plea

agreement; and third, petitioner is a “sophisticated individual with a law degree”

and therefore it was “implausible” that ineffective representation by his attorney

could have altered his understanding of the plea agreement. App. C. at 3-4.

The district court erred in this ruling by failing to consider a number of

relevant facts which, when considered together, show that petitioner’s attorney

performed deficiently and that his attorney’s failures induced petitioner to accept a

plea he would not have entered if he had been properly advised. On appeal,

petitioner demonstrated that the district court erred by denying his amended 2255

motion without holding an evidentiary hearing, where petitioner’s factual

allegations, which were plausible and therefore must accepted as true if no hearing

is held, established that the attorney who represented him during the plea

negotiation process and guilty plea hearing was ineffective on multiple fronts and

entirely failed to provide petitioner with reasonably competent advice and

representation, rendering petitioner’s guilty plea not knowing and voluntary as

required by due process. AOB 40-42; see AOB 22-39. Critically, the district court

rejected the government’s argument that petitioner’s motion was second or

successive and addressed its ruling entirely to the merits of petitioner’s claim,

despite ruling erroneously in that regard, as set forth in petitioner’s appellate briefs

filed with the Ninth Circuit. See App. C. at 1-4; see AOB 22-42; ARB 9-16.

The Decision of the Court of Appeals.

In its unpublished decision, the Ninth Circuit engaged in a truncated analysis

to rule that petitioner’s amendment to his section 2255 motion constituted an

impermissible second or successive petition. The Ninth Circuit concluded that

petitioner’s ineffective assistance of counsel claim was second or successive on the

basis that “the factual predicate for [petitioner’s] second-in-time motion accrued

when [he] was prejudiced by his counsel’s allegedly deficient performance – i.e.,

when he pleaded guilty – which was well before he filed his initial § 2255 motion.”

App. B. at 3. For the reasons set forth below, the Ninth Circuit erred by rejecting

petitioner’s motion as second or successive, and thereby ignoring petitioner’s valid

claim that he was deprived of his Sixth Amendment right to counsel and Fifth

Amendment due process right to be convicted only after a knowing and voluntary

plea. See Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); Tollett v. Henderson, 411

U.S. 258, 267 (1973); Boykin v. Alabama, 395 U.S. 238, 242-43 (1969); see also

Strickland v. Washington, 466 U.S. 668, 691-92 (1984).

The Court of Appeals Fundamentally Erred, Failing to Vindicate

Petitioner’s Fifth and Sixth Amendment Rights to Effective Assistance

of Counsel During the Plea Process, by Rejecting His Amended Section

2255 Motion as Second or Successive.

The Ninth Circuit’s ruling directly conflicts with this Court’s opinion in

Panetti v. Quarterman, 551 U.S. 930 (2007), as well as the Ninth Circuit’s own

published opinion in United States v. Jackson, 21 F.4th 1205 (9th Cir. 2022). A

comparison between the case at bar and the Jackson decision will illustrate the

misconceived nature of the Ninth Circuit’s decision under these authorities.

In Jackson, the defendant filed a second-in-time section 2255 motion, over a

year after his initial 2255 motion was denied, based on a new factual development:

the government offered a sentence to his codefendant that was lower than the

sentence he had received. Jackson, 21 F.4th at 1210. The defendant (Jackson)

argued that this new fact supported claims that his guilty plea had not been

knowing and voluntary, due to the government’s breach of the plea agreement and

ineffective assistance of counsel. Id. The breach claim argued that the government

had promised during the plea negotiations that it would not offer Jackson’s

codefendant a lesser sentence than that which it offered Jackson. Id. The

ineffective assistance of counsel claim alleged that Jackson’s attorney failed to

ensure that the government’s promise was memorialized in the written plea

agreement, failed to raise the issue at the plea hearing, and instructed Jackson to

falsely tell the court that no promises had been made other than what was in the

written plea agreement. Id. at 1210, 1216.

Just as in the case at bar, Jackson’s ineffective assistance of counsel claim

challenged the voluntariness of his guilty plea but also contained a factual

predicate that occurred only much later: the government’s offer of a lesser sentence

to Jackson’s codefendant. The Jackson Court reasoned that the motion was not

second or successive because “[o]n its face, Jackson’s claim is clearly based on

events that took place after his first petition was resolved.” Jackson, 21 F.4th at

1212; see id. at 1216. Having determined that the court had jurisdiction to entertain

Jackson’s second-in-time petition, this Court remanded for the district court to

address the merits of Jackson’s claim that his attorney was ineffective during the

plea process. Id. at 1216.

As noted above, in the case at bar the Ninth Circuit panel deemed

petitioner’s ineffective assistance claim to be second or successive on the basis that

“the factual predicate for petitioner’s second-in-time motion accrued when

petitioner was prejudiced by his counsel’s allegedly deficient performance – i.e.,

when he pleaded guilty – which was well before he filed his initial § 2255 motion.”

App. B. at 3. However, precisely as was the case in Jackson, petitioner’s new claim

of ineffective assistance was based a factual predicate that had not yet occurred

when he filed his initial section 2255 motion: the government’s denial of his

request to transfer to a prison in his home nation of Canada. In direct contravention

of Jackson, the Ninth Circuit conflated the elements of petitioner’s Strickland

claim (deficient performance and resulting prejudice) with the factual predicates of

that claim. It is true here (as in Jackson) that counsel’s deficient performance

happened before and during the plea hearing, and that prejudice resulted when a

guilty plea was entered that was not knowing and voluntary due to counsel’s

deficiency. However, in both cases a critical factual predicate for the claim had not

yet occurred at the time of the initial 2255 motion: Here, it was the government’s

denial of petitioner’s application to transfer to a Canadian prison, while in Jackson

it was the government’s offer of a lesser sentence to the codefendant. See Jackson,

21 F.4th at 1212. Thus, just as in Jackson, petitioner’s “claim is clearly based on

events that took place after his first petition was resolved.” Id. at 1212.

Just as the Ninth Circuit’s decision violates its own circuit precent in

Jackson, the lower court’s ruling also contravenes this Court’s decision In Panetti

v. Quarterman. In Panetti, this Court found an Eighth Amendment claim under by

Ford v. Wainwright, 477 U.S. 399 (1986) to not be second or successive because

the claim had not become “ripe” until after the initial habeas petition had been

filed. Panetti, 551 U.S. at 945, 947. The Court reasoned that a Ford claim could

only become “ripe” when its necessary factual predicates had occurred: that the

petitioner is mentally incompetent and facing an imminent execution. Id. at 945,

947-950; see Brown v. Muniz, 889 F.3d 661, 667 (2018) (explaining that under

Panetti “a claim ripens only at the time the factual predicate supporting a habeas

claim accrues”).

Under Panetti, where the factual predicates for a claim existed prior to the

filing of the initial petition, but were not discovered by the defendant, the claim is

considered second or successive. Brown, 889 F.3d at 667 (citing Panetti, 551 U.S.

at 945). For example, claims that the prosecution withheld evidence in violation of

Brady v. Maryland have been held to be second or successive, where the

exculpatory evidence existed prior to the initial petition even though it was not

revealed to the defendant until later. See id. at 668, 671-74; see, e.g., Gage v.

Chappell, 793 F.3d 1159, 1165 (9th Cir. 2015); see also Buenrostro, 638 F.3d at

725-26 (ineffective assistance claim second or successive where factual predicate

existed before initial petition but was discovered by defendant only later).

In juxtaposition to this situation are cases – such as Panetti, Jackson, and the

case at bar – where the factual predicate for a constitutional claim did not yet exist

when the initial petition was filed. See Panetti, 551 U.S. at 945, 947; Jackson, 21

F.4th at 1212; see also Brown v. Atchley, 76 F.4th 862, 873 (9th Cir. 2023)

(considering “whether the events that gave rise to Brown’s constitutional claims

occurred before” initial petition, and ruling that claims are second or successive if

they “could have been brought in” earlier petition). The Ninth Circuit’s decision in

Jackson shows why petitioner’s claim became ripe only after his initial section

2255 motion. Just as in Jackson, petitioner’s Sixth Amendment claim is based on

his attorney’s deficient performance prior to entry of his guilty plea. In Jackson,

the defendant’s claim that his attorney failed to protect his interests with respect to

an off-the-record promise by the government only ripened when the government

later broke that promise. Jackson, 21 F.4th at 1212, 1216. Here, just as in Jackson,

petitioner also claims that his attorney failed to protect his interests with respect to

an off-the-record promise by the government. See AOB at 18-19 (citing ER-6-8,

20, 23, 25). And also as in Jackson, the factual predicate petitioner’s claim did not

ripen until the government broke its alleged promise by denying his request to

transfer to a Canadian prison, which happened years after his first section 2255

motion had been resolved.

A reason for the Court of Appeal’s flawed analysis, and its resulting

contravention of Panetti and Jackson, appears to be that the Ninth Circuit’s

decision is premised on a misunderstanding of petitioner’s underlying

constitutional claim. Under Strickland v. Washington and its progeny, in order to

establish a violation of the Sixth Amendment the defendant must show that his

attorney performed deficiently and that the deficient performance resulted in

prejudice. See Strickland, 466 U.S. at 687-690; see also Hill, 474 U.S. at 56-57;

Lambert v. Blodgett, 393 F.3d 943, 979-980 (9th Cir. 2004). The deficient

performance by petitioner’s attorney took place before and during the plea hearing,

as the Ninth Circuit noted. App. B at 3. However, the factual basis for the other

half of a cognizable Strickland claim – the requirement that prejudice be shown –

did not occur until November 5, 2021, when the Department of Justice vetoed

petitioner’s request to transfer to a Canadian prison. The Ninth Circuit’s opinion

entirely ignores this critical, dispositive fact. App. B at 3.

As an example, if petitioner had somehow managed to do what the Ninth

Circuit’s decision faults him for failing to do – that is, to recognize his attorney’s

deficient performance relating to the Canadian transfer before his application was

denied, and raised that claim in his initial section 2255 motion, it is obvious that

respondent would have argued, no doubt with success, that petitioner had not

suffered prejudice because his application had not yet been made and denied.

Moreover, in this scenario the proposition that petitioner had failed to demonstrate

prejudice would likely have been further supported by assertions that the

application would have a high probability of success once petitioner made it. This

is so because, as noted at pages 26-27 of the opening brief filed with the Ninth

Circuit, in addressing the contentions that petitioner raised in his initial 2255

motion, both respondent and the district court characterized the transfer provision

of the plea agreement as being likely to result in petitioner’s successful application

to transfer to a Canadian prison, as well as being as a primary incentive underlying

petitioner’s decision to plead guilty. See, e.g., Dkt #189 at 19 (respondent’s Reply

re Motion to Dismiss, asserting that “despite his hyperbole, defendant is not likely

to die in prison. Because of the Canadian transfer provision, defendant can apply to

transfer to Canada after serving one-third of his sentence”); id. at 22 (referring to

“the likelihood that [petitioner] will be transferred to Canada after serving onethird of his sentence, and then paroled once there”); Dkt #209 at 18 & fn. 12

(district court’s Amended Order Granting Motion to Dismiss, reasoning that “[t]he

lack of any reasonable probability of [petitioner] insisting on a trial is further

established by the fact that, if he were to go to trial, he would lose the transferback-to-Canada deal and noting that petitioner’s transfer application was likely to

succeed given that “the U.S. government agreed that it would not oppose” it); Dkt

#180 at 25, 48 (respondent’s Motion to Dismiss, arguing petitioner “may only

serve a portion [of his sentence] after his transfer to Canada,” and opining that he

did not ask to withdraw guilty plea prior to sentencing because he “would have lost

the benefit of his Canadian transfer provision”); Dkt #194 at 4 (Supplemental Brief

re Motion to Dismiss, arguing that plea deal was valuable to petitioner due in part

to “very favorable Canadian transfer provision”); see also Dkt #114 at 7

(respondent’s Sentencing Memorandum, arguing that court should consider that

petitioner may “be eligible for ‘conditional release’ to the community when

transferred to Canada, and thus may serve considerably less than any sentence

imposed by this Court”). Thus, it should be abundantly clear that the final

necessary factual predicate for petitioner’s Strickland claim did not arise until

November 5, 2021, when the Department of Justice vetoed his transfer request. For

this reason, “the facts underlying the claim” cannot be said to have “occurred by

the time of the initial petition.” Brown, 889 F.3d at 667; see Panetti, 551 U.S. at

945, 947; Jackson, 21 F.4th at 1212; Buenrostro, 638 F.3d at 725-26.

Accordingly, the Ninth Circuit’s decision directly conflicts with this Court’s

decision in Panetti v. Quarterman, as illustrated by the Ninth Circuit’s published

decision in United States v. Jackson, as well as other authorities, such as

Brown v. Atchley, by misapplying the standard established by this Court and

misapprehending a critical point of fact by ruling that petitioner’s claim ripened

before a necessary factual predicate for that claim (the government’s broken

promise) had yet come into existence. Because the Ninth Circuit Court of Appeals

erroneously rejected petitioner’s section 2255 motion as second or successive, and

thereby ignored the underlying violation of petitioner’s Sixth Amendment right to

the effective assistance of counsel, the instant Petition for Writ of Certiorari should

be granted.

CONCLUSION

For the reasons set forth above, the petitioner respectfully requests that a writ

of certiorari issue to review the decision of the Ninth Circuit Court of Appeals,

which erroneously rejected as second or successive petitioner’s section 2255

motion to vacate sentence. This Court should grant review to correct the manifest

legal error by the Ninth Circuit and vindicate petitioner’s right to the effective

assistance of counsel.

Dated: January 21, 2025

Respectfully submitted,

____________________

GEOFFREY M. JONES

Attorney for Petitioner

William J. Wise

No. ___________

In the Supreme Court of the United States

October 2025 Term

__________________________________________

WILLIAM J. WISE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

________________________________________

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

APPENDIX

to Petition for Writ of Certiorari

Geoffrey M. Jones

Cal. State Bar No. 187373

Counsel of Record, appointed under the

Criminal Justice Act of 1964

773 Center Blvd., No. 69

Fairfax, CA 94978

Tel: (415) 517-3569

email: gffjones@comcast.net

Attorney for Petitioner

William Wise

APPENDIX A

Order of the

United States Court of Appeals for the Ninth Circuit

Denying Petition for Panel Rehearing and Petition for Rehearing En Banc

Filed November 22, 2024

Case: 22-16165, 11/22/2024, ID: 12915360, DktEntry: 72, Page 1 of 1

FILED

UNITED STATES COURT OF APPEALS

NOV 22 2024

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No.

22-16165

D.C. Nos.

3:12-cr-00111-EMC-1

3:12-cr-00642-EMC-1

WILLIAM J. WISE,

ORDER

Defendant-Appellant.

Before: BEA and MENDOZA, Circuit Judges, and M. FITZGERALD,* District

Judge.

The panel has voted to deny the petition for panel rehearing. Judge

Mendoza votes to deny the petition for rehearing en banc and Judge Bea and Judge

Fitzgerald so recommend. The full court was advised of the petition for rehearing

en banc and no judge has requested a vote on whether to rehear the matter.

The petition for panel rehearing and rehearing en banc, Dkt. No. 71, is

DENIED.

The Honorable Michael W. Fitzgerald, United States District Judge for

the Central District of California, sitting by designation.

APPENDIX B

Unpublished Memorandum Opinion of the

United States Court of Appeals for the Ninth Circuit

Filed September 13, 2024

(2 of 6)

Case: 22-16165, 09/13/2024, ID: 12906755, DktEntry: 70-1, Page 1 of 5

FILED

NOT FOR PUBLICATION

SEP 13 2024

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

Nos. 22-16165, 24-383

Plaintiff-Appellee,

D.C. Nos.

3:12-cr-00111-EMC-1

3:12-cr-00642-EMC-1

WILLIAM J. WISE,

MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of California

Edward M. Chen, District Judge, Presiding

Submitted September 9, 2024**

San Francisco, California

Before: BEA and MENDOZA, Circuit Judges, and M. FITZGERALD,*** District

Judge.

Defendant-Appellant William J. Wise appeals the district court’s orders:

(1) denying his motion to amend his motion to vacate or set aside his conviction

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

***

The Honorable Michael W. Fitzgerald, United States District Judge

for the Central District of California, sitting by designation.

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under 28 U.S.C. § 2255, and (2) denying his motion for compassionate release.

We review de novo whether the district court lacked jurisdiction to hear a § 2255

motion because it is an improper “second or successive” motion. United States v.

Jackson, 21 F.4th 1205, 1212 (9th Cir. 2022). We review for abuse of discretion a

district court’s denial of a motion for compassionate release. United States v.

Roper, 72 F.4th 1097, 1100 (9th Cir. 2023). We affirm.

We construe Wise’s motion to amend as a § 2255 motion because it

raises a “new ground for relief.” United States v. Buenrostro, 638 F.3d 720, 722

(9th Cir. 2011) (quoting Gonzalez v. Crosby, 545 U.S. 524, 532 (2005)). 28 U.S.C.

§ 2255 permits a defendant in federal custody to challenge a sentence that was

imposed “in violation of the Constitution or laws of the United States,” by filing a

motion with “the court which imposed the sentence to vacate, set aside or correct

the sentence.” The defendant “is generally limited to one motion under § 2255.”

United States v. Washington, 653 F.3d 1057, 1059 (9th Cir. 2011). But a

defendant may file a “second or successive” motion “only if the appropriate court

of appeals certifies that the motion contains newly discovered, dispositive evidence

or relies on a new constitutional rule made retroactive to collateral proceedings.”

Tong v. United States, 81 F.4th 1022, 1024 (9th Cir. 2023) (citing 28 U.S.C.

§ 2255(h)).

(4 of 6)

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Wise’s § 2255 motion is second or successive. In the habeas context,

“second or successive” is a “term of art,” Slack v. McDaniel, 529 U.S. 473, 486

(2000), and “[h]abeas petitions that are filed second-in-time are not necessarily

second or successive,” Clayton v. Biter, 868 F.3d 840, 843 (9th Cir. 2017). A

second-in-time filing is not second or successive if the court dismissed the first-intime motion on “technical procedural grounds without reaching the merits.”

Goodrum v. Busby, 824 F.3d 1188, 1194 (9th Cir. 2016). Similarly, a second-intime habeas filing is not second or successive if “the factual predicate for [the

second-in-time] claim accrued only after the time of the initial petition.” Brown v.

Muniz, 889 F.3d 661, 667 (9th Cir. 2018). But that is not the case here. The

district court dismissed Wise’s initial § 2255 motion on the merits. And the factual

predicate for Wise’s second-in-time motion accrued when Wise was prejudiced by

his counsel’s allegedly deficient performance—i.e., when he pleaded guilty—

which was well before he filed his initial § 2255 motion. Brown v. Atchley, 76

F.4th 862, 873 (9th Cir. 2023).

Because Wise’s § 2255 motion is second or successive, he was “required to

obtain permission from the court of appeals before filing [his] § 2255 motion in

district court.” United States v. Lopez, 577 F.3d 1053, 1056 (9th Cir. 2009). But

he did not obtain this court’s permission, so the district court lacked jurisdiction to

hear his claim. Id. And even if we construe Wise’s motion as a belated request for

(5 of 6)

Case: 22-16165, 09/13/2024, ID: 12906755, DktEntry: 70-1, Page 4 of 5

certification, we would deny it. Certification is appropriate where “newly

discovered evidence that, if proven and viewed in light of the evidence as a whole,

would be sufficient to establish by clear and convincing evidence that no

reasonable factfinder would have found the movant guilty of the offense” or “a

new rule of constitutional law, made retroactive to cases on collateral review by

the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h).

Neither situation is present here.

The district court did not abuse its discretion in denying Wise’s

motion for compassionate release. 18 U.S.C. § 3582(c)(1)(A)(i) permits a court to

modify an imposed term of imprisonment where it considers the factors laid out in

18 U.S.C. § 3553(a) and finds that “extraordinary and compelling reasons warrant

such a reduction.” The district court correctly concluded that Wise’s medical

conditions and age do not amount to extraordinary and compelling reasons to

reduce his sentence. Wise’s motion for compassionate release highlighted the

various medical issues he is dealing with in prison. But the district court correctly

noted that the record demonstrated that Bureau of Prisons (“BOP”) physicians

were evaluating and treating Wise’s conditions. The district court also correctly

determined that, even if BOP had failed to meet some or all of Wise’s medical

needs, Wise had not met his burden of showing that he was at risk of “serious

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Case: 22-16165, 09/13/2024, ID: 12906755, DktEntry: 70-1, Page 5 of 5

deterioration in health or death” or “serious deterioration in physical or mental

health” as U.S.S.G. § 1B1.13(b) requires.

AFFIRMED.

APPENDIX C

Order of the United States District Court for the Northern District of California

Denying Motion for Leave to File Amended Motion

to Vacate Sentence under 28 U.S.C. § 2255

Filed May 11, 2022

Case 3:12-cr-00111-EMC Document 298 Filed 05/11/22 Page 1 of 4

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

ORDER DENYING DEFENDANT’S

MOTION FOR LEAVE TO AMEND

WILLIAM J. WISE,

Docket No. 295

Defendant.

United States District Court

Northern District of California

Case No. 12-cr-00111-EMC-1

UNITED STATES OF AMERICA,

Plaintiff,

WILLIAM J. WISE,

Case No. 12-cr-00642-EMC-1

Docket No. 136

Defendant.

Currently pending before the Court is Mr. Wise’s motion for leave to amend his § 2255

petition.

Before addressing the motion, the Court takes into account the history of the proceedings.

Mr. Wise filed his first § 2255 petition back in February 2016. See Docket No. 160 (§ 2255

petition). In December 2016, the Court denied the petition. See Docket No. 209 (order).

Some three years later, Mr. Wise sought relief from that order, see Docket No. 216

(motion), but the Court denied that motion noting that Mr. Wise had essentially filed an

impermissible successive petition. See Docket No. 217 (order).

In June 2021, the Court ordered the government to respond to a contention made by Mr.

Wise that the government was not complying with the plea agreement with respect to a possible

United States District Court

Northern District of California

Case 3:12-cr-00111-EMC Document 298 Filed 05/11/22 Page 2 of 4

transfer to Canada. See Docket No. 265 (notice). In response, the government noted, inter alia,

that (1) it had no obligation to facilitate the transfer, (2) its only obligation was not to oppose the

transfer, and (3) per the express terms of the plea agreement, the obligation was applicable to the

USAO for the Northern District of California and the USAO for the Eastern District of North

Carolina only, and not any other federal, state, or local agency. See Docket No. 266 (response,

filed on 7/1/2021); see also Docket No. 293-1 (Plea Agmt. ¶¶ 15-16) (“I agree that the Agreement

binds the U.S. Attorney’s Offices for the Northern District of California and the Eastern District of

North Carolina only, and does not bind any other federal, state, or local agency,” and “[t]he

government . . . agreement that it will not oppose the defendant’s application for a transfer to serve

part of his sentence in Canada, provided that the defendant does not breach any terms of this

Agreement, including his promise not to apply for such a transfer until he has served at least 1/3 of

his sentence or 54 months in the United States . . . , whichever is longer.”). At a subsequent

hearing, the Court held that the government had not breached its obligations under the plea

agreement. The Court also noted that Mr. Wise had raised the issue of ineffective assistance of

counsel – i.e., based on counsel’s failure to advise that the plea agreement did not cover the entire

federal government but rather only the two USAOs – but left it to him to decide whether and how

to pursue that claim. See Docket No. 272 (minutes); see also Docket No. 293-1 (Tr. at 6-7) (at

hearing, Mr. Wise arguing ineffective assistance of counsel).

On November 5, 2021, the Department of Justice sent a letter to the relevant Canadian

authority, informing it that it had denied Mr. Wise’s request to transfer to Canada “because of the

seriousness of the offense and because [he] has become a domiciliary of the United States.”

Docket No. 293-1 (letter).

Mr. Wise now asks for leave to amend his § 2255 petition so that he may assert a claim of

ineffective assistance of counsel. As indicated above, Mr. Wise contends that he has a viable

claim for relief because counsel assured him that he had a right to transfer to Canada (subject to

approval by the Canadian government) but failed to advise him that the plea agreement bound

only the two USAOs. He asserts that his counsel never pointed out that limitation to him and that,

if he had been so notified, he never would have signed the plea agreement. See, e.g., Docket No.

Case 3:12-cr-00111-EMC Document 298 Filed 05/11/22 Page 3 of 4

United States District Court

Northern District of California

276 (letter); Docket No. 293-1 (Tr. at 6-7).

Mr. Wise’s motion to amend is subject to Federal Rule of Civil Procedure 15. See James

v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000) (stating that Rule 15 “‘applies to habeas actions with

the same force that it applies to garden-variety civil cases’”). Rule 15 provides in relevant part

that a “court should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P.

15(a)(2). Factors that a court considers in determining whether to give leave to amend include

“undue delay, the movant’s bad faith or dilatory motive, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing party, and futility.” Brown v.

Stored Value Cards, Inc., 953 F.3d 567, 574 (9th Cir. 2020).

The government argues that amendment would be futile because Mr. Wise is essentially

bringing an impermissible successive petition. The government, however, has not responded to

Mr. Wise’s assertion that his petition is “not second or successive [because] ‘ . . . the factual

predicate for [his] claim accrued only after the time of the initial petition.’” United States v.

Jackson, 21 F.4th 1205, 1212 (9th Cir. 2022). According to Mr. Wise, his new claim did not

accrue until the Department of Justice denied his request to transfer on November 5, 2021.

As a facial matter, Mr. Wise’s position seems to have some merit. Nevertheless, even if

Mr. Wise is correct on this issue, the Court finds that amendment would be futile for other

reasons. Mr. Wise’s position is predicated on his counsel failing to sufficiently review the plea

agreement with him – in particular, the limitation in ¶ 15 of the agreement which specified that the

agreement bound only the USAOs and not any other federal agency. See, e.g., Docket No. 276

(letter); Docket No. 293-1 (Tr. at 6-7). But at the plea hearing on November 15, 2012, Mr. Wise

specifically stated on the record that he had sufficient time to speak with his attorney, that he had

discussed the agreement thoroughly with his attorney, and that there were no promises made to

him other than what was contained in the agreement. See Docket No. 38 (Tr. at 5, 10). There is

no indication that these statements were made unknowingly and/or involuntarily, particularly

given that Mr. Wise has a law degree himself. See Docket No. 38 (Tr. at 4); see also Muth v.

Fondren, 676 F.3d 815, 822 (9th Cir. 2012) (stating that a “[p]etitioner’s statements at the plea

colloquy carry a strong presumption of truth” and “[o]ther circuits [that] have confronted the

United States District Court

Northern District of California

Case 3:12-cr-00111-EMC Document 298 Filed 05/11/22 Page 4 of 4

question whether a petitioner may rest a collateral challenge on allegations that directly contradict

the petitioner’s in-court statements . . . have held that, ordinarily, such petitions must fail”); United

States v. Lemaster, 403 F.3d 216, 220-21 (4th Cir. 2005) (stating that, “in the absence of

extraordinary circumstances, allegations in a § 2255 motion that directly contradict the petitioner’s

statements made during a properly conducted Rule 11 colloquy are always palpably incredible and

patently frivolous or false”). Here, the agencies bound by the agreement were specifically and

expressly spelled out in the plea agreement which Mr. Wise signed. And as noted, in response to

the court’s questions, Mr. Wise affirmed there were no promises made to him by the government

other than what was stated in the plea agreement. As a sophisticated individual with a law degree,

absent some specific compelling evidence suggesting he has a viable claim of ineffective

assistance, his proposed amendment to assert an IAC claim is implausible.

Accordingly, Mr. Wise’s motion for leave to amend is hereby DENIED.

IT IS SO ORDERED.

Dated: May 11, 2022

______________________________________

EDWARD M. CHEN

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.