Petition for Writ of Certiorari — Muhamed Pathe Bah, Petitioner v. United States

Supreme Court briefSep 10, 2025

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No. 25In the

Supreme Court of the United States

MUHAMED PATHE BAH,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Niles Illich

Counsel of Record

Palmer Perlstein

15455 Dallas Parkway,

Suite 540

Addison, TX 75001

(214) 225-3707

niles@palmerperlstein.com

Counsel for Petitioner

120641

(800) 274-3321 • (800) 359-6859

QUESTION PRESENTED

Courts in every federal district apply Rule 56 to 2255

motions; the application, however, is uneven. In the Second

Circuit, the summary-judgment rules do not apply “in

their entirety” in habeas proceedings, but in the Fourth

and Sixth Circuits the summary-judgment rules apply as

in civil cases. Here, a district court in the Fifth Circuit

inverted the summary-judgment standard and placed the

summary-judgment burden on the nonmovant. Petitioner

asks this Court to use this case to define the relationship

between Rule 56 and a motion brought under 28 U.S.C.

§ 2255.

What duties, if any, does an attorney owe his client

when counsel is aware the client is acutely mentally ill and

that client instructs counsel not to investigate mitigation

evidence?

PARTIES TO THE PROCEEDINGS

Petitioner is Muhamed Pathe Bah.

Respondent is the United States of America.

There are no entities required to be identified under

Rule 29.6.

iii

RELATED PROCEEDINGS

United States Court of A ppeals for the Fifth Circuit:

United States v. Muhamed Pathe Bah, No. 24-40672,

appeal of denial of certificate of appealability, not

reported in Westlaw.

United States v. Bah, No. 21-40712, 2023 WL 2239021,

at *1 (5th Cir. Feb. 24, 2023) (direct appeal from

conviction).

United States District Court for the Southern District

of Texas , Brownsville Division:

Bah v. United States, No. 1:23-CV-00166, 2024 WL

4453815, at *1 (S.D. Tex. Oct. 9, 2024) (order denying

relief under 28 U.S.C. § 2255).

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDINGS . . . . . . . . . . . . . . ii

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . vi

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . vii

PETITION FOR A WRIT OF CERTIORARI . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTORY PROVISIONS INVOLVED . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 4

Factual Background . . . . . . . . . . . . . . . . . . . . . . . 4

REASONS TO GRANT THE PETITION . . . . . . . . . . . 7

Circuits Apply Rule 56 and its Precedent

Unevenly to motions under 28 U.S.C.

§ 2255. This case provides apt facts to

clarify the relationship between Rule 56

and 28 U.S.C. § 2255 . . . . . . . . . . . . . . . . . . . . . . . 7

Table of Contents

Page

A. T he d i st r ic t c ou r t ’s r e a s on i ng

makes this an apt case to resolve the

uneven application of Rule 56 to 2255

proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B. The circuits apply Rule 56 unevenly . . . . . . 9

II. Does an Attorney Owe a Mentally Ill Client

a Duty to Investigate Even if the Mentally

Ill Client Instructs the Attorney Not to

Investigate? Does Landrigan apply? . . . . . . . . 11

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

TABLE OF APPENDICES

Page

APPENDIX A — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT, FILED APRIL 16, 2025 . . . . . . 1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

S OU T H ER N DI S T R IC T OF T E X A S ,

BR OW NS V I L L E DI V I S ION, F I L ED

OCTOBER 9, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4a

APPENDIX C — MAGISTRATE JUDGE’S

REPORT A N D RECOM M EN DAT ION,

UNITED STATES DISTRICT COURT

F OR T H E S OU T H ER N DI S T R IC T

OF TEXAS, BROWNSVILLE DIVISION,

FILED AUGUST 26, 2024 . . . . . . . . . . . . . . . . . . . . . 9a

APPENDIX D — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT, FILED MAY 14, 2025 . . . . . . . 63a

vii

TABLE OF CITED AUTHORITIES

Page

Cases

Andrews v. Davis,

944 F.3d 1092 (9th Cir. 2019) . . . . . . . . . . . . . . . . . . . 13

Autry v. McKaskle,

727 F.2d 358 (5th Cir. 1984) . . . . . . . . . . . . . . . . . . . . 14

Celotex Corp. v. Catrett,

477 U.S. 317, 106 S. Ct. 2548,

91 L. Ed. 2d 265 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . 9

Copeland v. Machulis,

57 F.3d 476 (6th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . 10

Cummings v. Sec’y for Dep’t of Corr.,

588 F.3d 1331 (11th Cir. 2009) . . . . . . . . . . . . . . . . . . 13

Hamilton v. Ayers,

583 F.3d 1100 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . 13

Hervis v. United States,

No. CIV. 09-CV-158-JD,

2010 WL 411233 (D.N.H. Jan. 28, 2010) . . . . . . . . 7, 11

In re Moore,

830 F.3d 1268 (11th Cir. 2016) . . . . . . . . . . . . . . . . . . . 8

N. Carolina Bar & Tavern Ass’n v. Stein,

S.E.2d , No. 126PA24,

2025 WL 2427604 (N.C. Aug. 22, 2025) . . . . . . . . . . . 4

viii

Cited Authorities

Page

Porter v. McCollum,

558 U.S. 30, 130 S. Ct. 447,

175 L. Ed. 2d 398 (2009) . . . . . . . . . . . . . . . . . . . . . . . 14

Puglisi v. United States,

586 F.3d 209 (2d Cir. 2009) . . . . . . . . . . . . . . . . . . . . . 10

Schriro v. Landrigan,

550 U.S. 465, 127 S. Ct. 1933,

167 L. Ed. 2d 836 (2007) . . . . . . . . . . . . . . 11, 12, 13, 14

Shore v. Davis,

845 F.3d 627 (5th Cir. 2017) . . . . . . . . . . . . . . . . . . . . 14

Silva v. Woodford,

279 F.3d 825 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . 13

Sonnier v. Quarterman,

476 F.3d 349 (5th Cir. 2007) . . . . . . . . . . . . . . . . . . . . 14

Stankewitz v. Wong,

698 F.3d 1163 (9th Cir. 2012) . . . . . . . . . . . . . . . . . . . 13

Summerlin v. Schriro,

427 F.3d 623 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . 13

Sweeney v. Erving,

228 U.S. 233, 33 S. Ct. 416,

57 L. Ed. 815 (1913) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Cited Authorities

Page

United States v. Aguiar,

105 F. Supp. 3d 1 (D.D.C. 2015) . . . . . . . . . . . . . . . . . 10

United States v. Boyd,

No. 04-80391, 2011 WL 318098

(E.D. Mich. Jan. 31, 2011) . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Masat,

896 F.2d 88 (5th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . 14

United States v. White,

366 F.3d 291 (4th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . 9

Wiggins v. Smith,

539 U.S. 510, 123 S. Ct. 2527,

156 L. Ed. 2d 471 (2003) . . . . . . . . . . . . . . . . . . . . . . . 12

Statutes and Rules

28 U.S.C. § 2254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 9

28 U.S.C. § 2255 . . . . . . . . . . . . . . . . . . . . . 2, 7, 8, 9, 10, 11

28 U.S.C. § 2255(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Fed. R. Civ. P. 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Fed. R. Civ. P. 81(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fed. R. Civ. P. 56 . . . . . . . . . . . . . . . . . . . . . . . 2, 7, 8, 10, 11

Cited Authorities

Page

Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Fed. R. Civ. P. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

PETITION FOR A WRIT OF CERTIORARI

Petitioner Muhamed Pathe Bah respectfully petitions

this Court for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The opinion from the United States Court of Appeals

is unpublished. (1a-3a). The district court’s opinion is

likewise unpublished but available at 2024 WL 4453815.

(4a-8a). The magistrate’s recommendations that the

district court adopted are likewise unpublished. (9a-62a).

JURISDICTION

The court of appeals affirmed the denial of the

certificate of appealability on April 16, 2025. (1a-3a).

Petitioner filed for reconsideration on April 30, 2025. The

panel denied the motion for reconsideration on May 14,

2025. This Court granted Petitioner until September 11,

2025 to file this petition.

STATUTORY PROVISIONS INVOLVED

1. Rule 81(a)(4) of the Federal Rules of Civil

Procedure: (a) Applicability to Particular

Proceedings. . . . (4) Special Writs. These

rules apply to proceedings for habeas corpus

and for quo warranto to the extent that

the practice in those proceedings: (A) is

not specified in a federal statute, the Rules

Governing Section 2254 Cases, or the Rules

Governing Section 2255 Cases; and (B) has

previously conformed to the practice in civil

actions.

2. Rule 56 of the Federal Rules of Civil

Procedure: (a) Motion for Summa r y

Judgment or Partial Summary Judgment.

A party may move for summary judgment,

identifying each claim or defense—or the

part of each claim or defense—on which

summary judgment is sought. The court

shall grant summary judgment if the

movant shows that there is no genuine

dispute as to any material fact and the

movant is entitled to judgment as a matter

of law. The court should state on the record

the reasons for granting or denying the

motion. . . . (c) Procedures. (1) Supporting

Factual Positions. A party asserting that

a fact cannot be or is genuinely disputed

must support the assertion by: (A) citing

to particular parts of materials in the

record, including depositions, documents,

electronically stored information, affidavits

or declarations, stipulations (including

those made for purposes of the motion

only), admissions, interrogatory answers,

or other materials; or (B) showing that the

materials cited do not establish the absence

or presence of a genuine dispute, or that an

adverse party cannot produce admissible

evidence to support the fact. (2) Objection

That a Fact Is Not Supported by Admissible

Evidence. A party may object that the

material cited to support or dispute a fact

cannot be presented in a form that would

be admissible in evidence. (3) Materials

Not Cited. The court need consider only

the cited materials, but it may consider

other materials in the record. (4) Affidavits

or Declarations. An affidavit or declaration

used to support or oppose a motion must

be made on personal knowledge, set out

facts that would be admissible in evidence,

and show that the affiant or declarant is

competent to testify on the matters stated.

3. 28 U.S.C. § 2255: (a) 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.

(b) Unless the motion and the files and

records of the case conclusively show that

the prisoner is entitled to no relief, the court

shall cause notice thereof to be served upon

the United States attorney, grant a prompt

hearing thereon, determine the issues and

make findings of fact and conclusions of

law with respect thereto. If the court finds

that the judgment was rendered without

jurisdiction, or that the sentence imposed

was not authorized by law or otherwise

open to collateral attack, or that there has

been such a denial or infringement of the

constitutional rights of the prisoner as to

render the judgment vulnerable to collateral

attack, the court shall vacate and set the

judgment aside and shall discharge the

prisoner or resentence him or grant a new

trial.

STATEMENT OF THE CASE

Factual Background

This case is an unintended consequence of North

Carolina’s COVID-19 “stay at home” orders. Exec. Order

No. 121, 34 N.C. Reg. 1903 (Mar. 27, 2020); see N. Carolina

Bar & Tavern Ass’n v. Stein, S.E.2d , No. 126PA24,

2025 WL 2427604, at *2 (N.C. Aug. 22, 2025) (discussing

orders). These orders indirectly forced the closure of the

clinic that treated Mr. Bah for schizophrenia. When Mr.

Bah stopped receiving treatment, he left his family in

North Carolina for Harlingen, Texas. Within forty-five

days of being in Texas Mr. Bah robbed a bank and tried

to escape on a gold-Huffy bicycle. The police arrested Mr.

Bah immediately and he admitted to the offense; the only

question was the sentence. The district court imposed

a life sentence followed by a sentence of three-hundred

months.

Mr. Bah’s story, however, begins as an ordinary

child in North Carolina. But, between his seventeenth

and eighteenth birthdays, he began to suffer from

schizophrenia. As a result of the schizophrenia, between

2012 and 2019 North Carolina courts involuntarily

committed Mr. Bah to mental health treatment at least

six times.

In March 2019, a North Carolina court ordered

Mr. Bah to enter an in-patient treatment program at

Behavior Health in Charlotte. The clinic provided Mr. Bah

schizophrenia medication. The medications, in particular

an extended-release injection, alleviated the severe

symptoms of Mr. Bah’s schizophrenia. After Mr. Bah’s

release, he continued to receive the monthly injections

until Behavioral Health shut down due to the COVID-19

“stay at home orders.” Two months after his last injection,

Mr. Bah’s symptoms returned and he moved to Harlingen,

Texas. At the time of his move—about a month before the

offense—Mr. Bah had almost no money and knew no one

in Harlingen, yet he moved fifteen hundred miles from his

family (who provided his financial support) for a “lower

cost of living.”

One week after Mr. Bah moved to Harlingen, and twoto-three weeks before the offense, Mr. Bah’s family, who

had not heard from him and who were concerned about

the deterioration of Mr. Bah’s mental health, contacted the

Harlingen Police Department, and requested a welfare

check on Mr. Bah. The welfare check took place on June

22, 2020 (only four days before the offense). Lamentably,

the police could not contact Mr. Bah.

On June 26, 2020, Mr. Bah—equipped to escape with

a gold-Huffy bicycle—robbed Texas Regional Bank in

Harlingen and in the process he shot a teller (the teller

lived and did not require overnight care in the hospital).

Almost immediately after Mr. Bah left the bank on the

bicycle, the police arrested him.

Mr. Bah admitted to the offense and the only question

was the nature and duration of the sentence.

The PSR tangentially mentioned Bah’s mental health

problems. The PSR informed the district court:

• The “Mental and Emotional Health” section of the

PSR simply states Mr. Bah’s diagnosis “with minor

schizophrenia” and “recommended that he participate

in mental health assessment and treatment while

incarcerated.”

• The PSR briefly mentioned Mr. Bah’s “in-patient

treatment for 18 months at the Behavior Health

Center in 2020, because he was having psychosis

episodes.”

• The PSR mentioned Dr. Thomas Gonzalez, a

psychiatrist, on February 22, 2021, saw Mr. Bah

through Telehealth while he was in Cameron County

Detention Center in Brownsville, Texas, but “did not

give any recommendations regarding diagnosis or

medication.”

When the district court asked counsel about Applicant’s

mental health disorders, counsel theorized: “I think a root

to Mr. Bah’s conduct is that it–it strongly appears that Mr.

Bah suffers from some type of psychological disorder,” and

reported that the “conduct [wa]s consistent of somebody

that—that had—there’s a disorder,” and feebly concluded

“there’s something wrong, to be quite honest.”

The district court sentenced Bah to three-hundred

months and to life and ordered the sentences to be served

consecutively.

Bah appealed the reasonableness of the sentence

but the Fifth Circuit affirmed. Bah then challenged

the conviction under 28 U.S.C. § 2255. The magistrate

held an in-person evidentiary hearing. The magistrate

recommended denying relief; the district court affirmed

and denied a certificate of appealability; and the

Fifth Circuit affirmed the denial of the certificate of

appealability and rejected Bah’s request for rehearing.

REASONS TO GRANT THE PETITION

Circuits Apply Rule 56 and its Precedent Unevenly

to motions under 28 U.S.C. § 2255. This case provides

apt facts to clarify the relationship between Rule

56 and 28 U.S.C. § 2255.

“Because of differences between habeas corpus

proceedings and other civil proceedings,

however, the Second Circuit has determined,

persuasively, that Federal Rule of Civil

Procedure 56 does not apply in its entirety in

the habeas context.”

Hervis v. United States, No. CIV. 09-CV-158-JD, 2010

WL 411233, at *2 (D.N.H. Jan. 28, 2010).

The district court’s reasoning makes this an

apt case to resolve the uneven application of

Rule 56 to 2255 proceedings.

This Court is aware that the district courts, circuit

courts, and even this Court face an annual avalanche

of 2255 filings—many filed pro se. Rule 56 provides a

convenient tool to resolve many of these cases, yet the

application of Rule 56 to these thousands of annual filings

is uneven. This is an apposite case to establish uniformity

because here the district court placed the summaryjudgment burden on Mr. Bah, the nonmovant.

Here the district court claimed to apply the traditional

summary-judgment standard under Rule 56. Yet, the

magistrate’s opinion, adopted by the district court,

concluded “Bah has failed to meet his burden to prove

that Counsel’s performance was deficient or that he was

prejudiced. The undersigned recommends that the Court

grant the Government summary judgment on Bah’s claims

for ineffective assistance of counsel’s alleged failure

to investigate or present mitigation evidence.” (34a).

(emphasis added).

The standard applied by the district court placed the

burden on Bah—the nonmovant on summary judgment—

to “prove” he was entitled to relief. (34a).

In a 2255 motion, the ultimate burden rests with the

movant. See, e.g., In re Moore, 830 F.3d 1268, 1272 (11th

Cir. 2016) (collecting cases). That fact does not distinguish

2255 motions from most civil cases. See, e.g., Sweeney v.

Erving, 228 U.S. 233, 237, 33 S. Ct. 416, 417, 57 L. Ed. 815

(1913) (“The trial judge refused this request, and, on the

contrary, instructed the jury: ‘That the burden of proof

is upon the plaintiff to establish by a fair preponderance

of the evidence that the burn upon her back was caused

by negligence on the part of the defendant in the manner

in which he subjected her to exposure by the X-ray.’”).

In a traditional civil case, the defendant can move for

summary judgment, but the defendant has the burden to

establish there is no genuine issue of material fact. See,

e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct.

2548, 2555, 91 L. Ed. 2d 265 (1986) (“The Federal Rules

of Civil Procedure have for almost 50 years authorized

motions for summary judgment upon proper showings

of the lack of a genuine, triable issue of material fact.”).

Under Rule 12 of the Rules Governing Section 2255

cases, the “Federal Rules of Civil Procedure . . . to the

extent they are not inconsistent with any statutory

provisions or these rules, may be applied to a proceeding

under these rules.” Rules Governing § 2254 and § 2255

Proceedings, Rule 12.

In this case the district court—in adopting the

magistrate’s recommendations—inverted the summaryjudgment standard and required Bah to “prove” he was

entitled to relief to survive summary judgment. (34a).

B. The circuits apply Rule 56 unevenly.

Most circuits, including the circuit in this case, claim

to apply summary judgment to 2255 motions without

amendment. See, e.g., United States v. White, 366 F.3d 291,

300–01 (4th Cir. 2004) (“ . . . a court may grant summary

judgment only when ‘there is no genuine issue as to any

material fact and . . . the moving party is entitled to

judgment as a matter of law,’ Fed. R. Civ. P. 56(c), with

‘any permissible inferences . . . drawn from the underlying

facts to be viewed in the light most favorable to the party

opposing the motion.’”); See United States v. Boyd, No. 0480391, 2011 WL 318098, at *1 (E.D. Mich. Jan. 31, 2011)

(denying summary judgment in 2255 motion on standard

grounds under Rule 56); Copeland v. Machulis, 57 F.3d

476, 478 (6th Cir. 1995).

Other circuits find the straightforward application of

Rule 56 to 2255 motions ungainly. See Puglisi v. United

States, 586 F.3d 209, 214 (2d Cir. 2009).

In Puglisi, the Second Circuit explained:

• There is no discovery in summary judgment in a 2255

so “a petitioner may need only to identify available

sources of relevant evidence rather than obtain it as

in civil cases or seek a discovery order from the court

under Rule 6 of the Rules Governing Section 2255

Proceedings.”

• “[A] district court need not assume the credibility of

factual assertions, as it would in civil cases, where

the assertions are contradicted by the record in the

underlying proceeding.”

• The district court can make credibility determinations

(and therefore abandon the normal summaryjudgment standard)—especially if the judge that

heard the case is presiding over the 2255 proceedings.

Id. at 213–14; see also United States v. Aguiar, 105 F. Supp.

3d 1, 3 (D.D.C. 2015) (“[t]he procedure for determining

whether a hearing [on a § 2255 motion] is necessary is in

part analogous to, but in part different from, a summary

judgment proceeding.”); Hervis v. United States, No. CIV.

09-CV-158-JD, 2010 WL 411233, at *2 (D.N.H. Jan. 28,

2010) (“Because of differences between habeas corpus

proceedings and other civil proceedings, however, the

Second Circuit has determined, persuasively, that Federal

Rule of Civil Procedure 56 does not apply in its entirety

in the habeas context.”).

This case asks this Court to clarify the relationship

between Rule 56 and the thousands of 2255 motions filed

annually. Defining the relationship between Rule 56 and

2255 motions will affect thousands of cases every year

and set precedent for decades.

This is an apt case for this Court to clarify the

application of the rules of summary judgment to motions

brought under 28 U.S.C. § 2255 because here the district

court placed the summary-judgment burden on the

nonmovant to “prove” he was entitled to his requested

relief. (34a). This is a recurrent problem faced by all

district courts each week.

II. Does an Attorney Owe a Mentally Ill Client a

Duty to Investigate Even if the Mentally Ill Client

Instructs the Attorney Not to Investigate? Does

Landrigan apply?

Statistics vary but generally agree that between a

quarter and a half of all federal inmates have a history of

mental illness. This case presents the question of whether

an attorney has a duty to investigate mitigation evidence

even if a competent but mentally ill client instructs counsel

not to do so.

A doctor found Mr. Bah competent but there was no

question he suffered from mental impairment during the

period of representation. While suffering from mental

impairment Mr. Bah told his attorney not to investigate

mitigation evidence. The attorney followed this instruction

and did not do a meaningful investigation into mitigation

evidence.

This case asks whether an attorney has a duty to

investigate potential mitigation evidence if his client is

mentally ill and instructs counsel not to investigate any

mitigation evidence.

This Court has recognized a generalized duty to

investigate mitigation evidence in capital and noncapital

cases. See Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct.

2527, 2535, 156 L. Ed. 2d 471 (2003) (“counsel has ‘a duty

to make reasonable investigations” of potential mitigating

evidence or “to make a reasonable decision that makes

particular investigations unnecessary.’”).

A sub-set of cases, sometimes called affirmativeinstruction cases, like this one, present a muddle. When

an attorney represents a mentally ill defendant, does the

attorney, even in the face of an affirmative instruction

to the contrary, have a duty to investigate mitigation

evidence?

This question begins with this Court’s opinion in

Schriro, which holds that when a defendant refused to

allow the presentation of any mitigating evidence that the

defendant “could not establish Strickland prejudice based

on his counsel’s failure to investigate further possible

mitigating evidence.” Schriro v. Landrigan, 550 U.S. 465,

127 S. Ct. 1933, 167 L. Ed. 2d 836 (2007).

Since Schriro, courts have cabined it to instances when

the defendant “threaten[ed] to obstruct the presentation

of any mitigating evidence.” See Hamilton v. Ayers, 583

F.3d 1100, 1119 (9th Cir. 2009); Stankewitz v. Wong, 698

F.3d 1163, 1170 n.2 (9th Cir. 2012) (concluding that Schriro

did not apply because the defendant “did not interrupt or

try to sabotage trial counsel’s presentation”).

Schriro provides direction but does not answer the

question of whether an attorney who represents a mentally

ill client has an obligation to that client—even in the face of

an affirmative instruction to the contrary—to investigate

mitigation evidence.

In the absence of direction from this Court, circuits

have opined on counsel’s duty to a mentally impaired or

challenged (although competent) client.

In the Eleventh Circuit, counsel cannot “blindly

follow” a client’s instructions not to investigate or present

mitigation evidence, especially when the client may have

a mental impairment that prevents proper judgment.

Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331, 1358

(11th Cir. 2009).

In the Ninth Circuit, a client may direct his attorney

not to conduct a mitigation investigation, but that

instruction does not relieve counsel of the obligation to

investigate. “[A] lawyer’s duty to investigate is virtually

absolute, regardless of a client’s expressed wishes.” Silva

v. Woodford, 279 F.3d 825, 840 (9th Cir. 2002); Summerlin

v. Schriro, 427 F.3d 623, 638 (9th Cir. 2005); see also

Andrews v. Davis, 944 F.3d 1092, 1111 (9th Cir. 2019)

(“A client may be ‘fatalistic or uncooperative, but that

does not obviate the need for defense counsel to conduct

some sort of mitigation investigation.’” (quoting Porter v.

McCollum, 558 U.S. 30, 40, 130 S. Ct. 447, 175 L. Ed. 2d

398 (2009)). While this rule does not address mentally ill

clients specifically, there is no reason that mentally ill

or mentally impaired clients would be exempt from this

broad mandate.

In the Fifth Circuit, however, a defendant can

interfere with his attorney’s duty to investigate and

render the attorney immune from attack for a failure to

investigate. (31a). See Shore v. Davis, 845 F.3d 627, 633

(5th Cir. 2017) (per curiam) (“A defendant cannot raise a

Strickland claim based on counsel’s compliance with his

instructions.”). This case relied on Shore to find that trial

counsel was constitutionally effective. (31a).

Shore relied on Fifth Circuit precedent that predated

Schriro to hold that an instruction not to investigate

forever insulates an attorney from a claim of ineffective

assistance of counsel for failing to investigate. Shore cited:

• United States v. Masat, 896 F.2d 88, 92 (5th Cir.

1990) (“[A defendant cannot] avoid conviction on the

ground that his lawyer did exactly what he asked

him to do.”).

• Autry v. McKaskle, 727 F.2d 358, 361 (5th Cir. 1984)

(“By no measure can [a defendant] block his lawyer’s

efforts and later claim the resulting performance

was constitutionally deficient.”). And,

• Sonnier v. Quarterman, 476 F.3d 349, 362 (5th Cir.

2007).

This case is an apt case to decide whether counsel

owes a mentally impaired or mentally ill client a duty to

investigate even if that client instructs the attorney not

to do the investigation.

As the magistrate explained, Mr. Bah’ attorney

argued during sentencing:

(1) other than a misdemeanor offense five

years prior, Bah had no criminal record beyond

traffic violations;

(2) while Bah fired his weapon, he only did

so once, sparing the remaining individuals at

the bank;

(3) Bah did not resist arrest when he was

ultimately apprehended;

(4) “a root to Mr. Bah’s conduct is that . . . it

strongly appears that Mr. Bah suffers from

some type of psychological disorder,” indeed,

“the PSR clearly reflects that . . . Mr. Bah was

committed into a mental institution back in

North Carolina”;

(5) Dr. Gonzalez “did not find any evidence of

schizophrenia,” but Bah’s conduct during his

legal proceedings was erratic and “consistent

of somebody” with a disorder—hiring and

firing his attorneys and waffling on whether

to represent himself pro se multiple times; and

(6) that Counsel spoke with Bah “quite a bit

. . . and there’s . . . something wrong.”

(47a).

As the magistrate noted, “Bah instructed [Counsel]

not to contact his family, precluding [Counsel] from

developing additional mitigation evidence.” (31a).

This case asks whether the Eleventh Circuit and the

Ninth Circuit are correct, and that Mr. Bah’s counsel had

a duty to investigate the medical records from the seven

involuntary commitments, to speak with Mr. Bah’s family

about Mr. Bah’s illness, and to investigate the magnitude

of Mr. Bah’s mental health problems. Or whether the

district court was correct and, while counsel recognized

there was “something wrong” with Mr. Bah, counsel

was free to blindly follow Mr. Bah’s instructions not to

investigate mitigation evidence?

The answer to this question will have immediate

effects on the criminal practice in nearly every circuit.

Applicant asks this Court to grant this petition and

to decide whether an attorney has a duty to investigate

mitigation evidence even if his mentally ill client instructs

him not to do so. This question need not reach all

defendants and instead asks whether an attorney can

decide not to investigate mitigation evidence based on the

instruction of a client known to be mentally ill.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Niles Illich

Counsel of Record

Palmer Perlstein

15455 Dallas Parkway,

Suite 540

Addison, TX 75001

(214) 225-3707

niles@palmerperlstein.com

Counsel for Petitioner

September 10, 2025

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT, FILED APRIL 16, 2025 . . . . . . 1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

S OU T H ER N DI S T R IC T OF T E X A S ,

BR OW NS V I L L E DI V I S ION, F I L ED

OCTOBER 9, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4a

APPENDIX C — MAGISTRATE JUDGE’S

REPORT A N D RECOM M EN DAT ION,

UNITED STATES DISTRICT COURT

F OR T H E S OU T H ER N DI S T R IC T

OF TEXAS, BROWNSVILLE DIVISION,

FILED AUGUST 26, 2024 . . . . . . . . . . . . . . . . . . . . . 9a

APPENDIX D — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT, FILED MAY 14, 2025 . . . . . . . 63a

Appendix

A UNITED STATES

APPENDIX A — ORDER

OF THE

COURT OF APPEALS FOR THE FIFTH CIRCUIT,

FILED APRIL 16, 2025

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 24-40672

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MUHAMED PATHE BAH,

Defendant-Appellant.

Application for Certificate of Appealability

the United States District Court

for the Southern District of Texas

USDC No. 1:23-CV-166

USDC No. 1:20-CR-433-1

ORDER:

Muhamed Pathe Bah, federal prisoner # 17991-579,

moves for a certificate of appealability (COA) to challenge

the dismissal of his 28 U.S.C. § 2255 motion. Bah filed the

§ 2255 motion to challenge his consecutive sentences of

300 months of imprisonment and life imprisonment, which

were imposed following his guilty plea convictions of bank

robbery with a dangerous weapon and use of a firearm

during a crime of violence.

Appendix A

As an initial matter, Bah, who is represented

by counsel, does not reprise his claims of ineffective

assistance of trial counsel based on failure to present all

formal plea offers and failure to raise objections to the

presentence report. By failing to brief these claims, Bah

has abandoned them. See Hughes v. Johnson, 191 F.3d

607, 613 (5th Cir. 1999).

Bah renews his claim that his trial counsel was

ineffective for failing to investigate his mental health

problems and present mitigating evidence related to the

mental health issues at sentencing. Bah contends that

reasonable jurists could debate both the district court’s

determination that his trial counsel did not perform

deficiently and the determination that, even if counsel’s

performance was deficient, he had not established

prejudice.

To obtain a COA, Bah must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84

(2000). When, as here, a district court has denied a claim

on the merits, a movant must show “that jurists of reason

could disagree with the district court’s resolution of his

constitutional claims or that jurists could conclude the

issues presented are adequate to deserve encouragement

to proceed further.” Miller-El v. Cockrell, 537 U.S. 322,

327 (2003) (internal quotation marks and citation omitted);

see Slack, 529 U.S. at 484.

Because Bah fails to make the requisite showing, his

request for a COA is DENIED.

Appendix A

/s/James E. Graves, Jr.

James E. Graves

United States Circuit Judge

Appendix

B UNITED STATES

APPENDIX B — ORDER

OF THE

DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF TEXAS, BROWNSVILLE DIVISION,

FILED OCTOBER 9, 2024

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

Civil Action No. 1:23-cv-00166

MUHAMED PATHE BAH,

“Petitioner,”

UNITED STATES OF AMERICA,

“The Government.”

ORDER

Before the Court is the “Magistrate Judge’s Report

and Recommendation” (“R&R”) (Dkt. No. 48) and

Petitioner’s “Objections to Magistrate Judge’s R&R”

(“Objections”) (Dkt. No. 49). The Magistrate recommended

that this Court: “(1) GRANT the Government’s Motion for

Summary Judgment on Bah’s first and second claims;

(2) DISMISS all three of Bah’s claims; (3) DECLINE to

issue a certificate of appealability; and (4) DIRECT the

Clerk of Court to close this case” Dkt. No. 48. Upon a de

novo review, the Court ADOPTS the R&R (Dkt. No. 48).

Appendix B

BACKGROUND

On June 26, 2020, Petitioner robbed a bank in

Harlingen, Texas, during which he shot a bank teller in

the head. Dkt. No. 4 at 8-9. Later, a grand jury indicted

Petitioner on one count of robbery in violation of 18 U.S.C.

§ 2113(a) and (d) (“Count One”) and one count of use of

a firearm during a crime of violence in violation of 18

U.S.C. § 924(c)(1)(A)(iii) (“Count Two”). Dkt. No. 3 at 97.

Ultimately, this Court sentenced Petitioner to twenty-five

years’ incarceration on Count One and life imprisonment

on Count Two. CR Dkt. No. 80 at 24-25.1

Now seeking habeas relief, Petitioner claims he

received ineffective assistance of counsel during his

sentencing. Dkt. No. 3 at 2-3. He argues that his counsel

failed: (1) “to present mitigating evidence to explain

Bah’s history of mental illness”; (2) “to object to make

fundamental objections to . . . Bah’s case”; and (3) “to

present all formal plea offers.” Id.

II. STANDARD OF REVIEW

If a party objects to a magistrate’s ruling, the district

court will review that determination de novo. United

States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).

1. The Court references the docket in this § 2255 action

using the “Dkt.” designation. The Court references the docket in

Petitioner’s underlying criminal cause, No. 1:20-cr-00433-1, using

the “CR Dkt.” designation.

Appendix B

III. DISCUSSION

Petitioner first objects to the Magistrate’s finding

that “Bah’s family members reached out to Counsel to

be involved in and to request notice of Bah’s sentencing

date.” Dkt. No. 48 at 10 (emphasis added). Upon review of

the record, this Court finds that Petitioner’s family tried

to contact counsel to get involved with Petitioner’s case

but agrees that it is unclear whether they also requested

notice of his sentencing date. 2 Thus, Objection One is

SUSTAINED.

Petitioner next objects to the Magistrate’s finding that

“the Court possessed the PSR, which included, among

other things, information gleaned from interviews with

Bah’s mother and sister summarizing Bah’s mental health

history.” Dkt. No. 48 at 19 (emphasis added). Petitioner

claims there is error as Probation never received mental

health information from Petitioner’s mother. Yet the

PSR states that his “personal and family history was

corroborated by... his mother, Satoumata Binta Miller, on

August 5, 2021, via a telephonic interview.” Dkt. No. 4, at

19 ¶ 67. Thus, the Court finds no error. Objection Two is

OVERRULED.

Petitioner’s third Objection is that the Magistrate

erroneously applied a summary judgment standard to a

§ 2255 habeas action. Dkt. No. 49 at 2. As Petitioner notes,

however, the Fifth Circuit approves the use of summary

judgment for these types of cases. Randle v. Scott, 43 F.3d

221, 226 (5th Cir. 1995). Thus, the Court finds no error.

Objection Three is OVERRULED.

2. The Court notes this for the sake of an accurate record. This

finding does not change the Court’s final judgment.

Appendix B

Petitioner’s fourth Objection relies on a finding that

the Magistrate erred with Objection Three. The Court

found no error. Objection Four is OVERRULED.

Petitioner’s next objection is that the Magistrate

erred when granting summary judgment on his first

ineffective assistance claim because “there is a genuine

issue of material fact about whether trial counsel was

deficient for failing to investigate... mitigation evidence.”

Dkt. No 49 at 4 (emphasis added). Petitioner misstates the

standard though because whether counsel performance

is deficient is a legal determination, not an issue of fact.

See Strickland v. Washington, 466 U.S. 668, 687-88,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Moreover, the

underlying material facts that the Magistrate considered

in making this determination were undisputed. Finding

no error with the Magistrate’s analysis, Objection Five

is OVERRULED.

Objection Six is OVERRULED; it merely reiterates

the same argument related to Petitioner’s second and

third ineffective assistance claims.

After reviewing the evidence, the Magistrate found

that Petitioner failed to make a “substantial showing of

denial” of his right to effective assistance of counsel, which

is required to issue such a certificate. See generally Dkt.

No. 48; see also Miller-El v. Cockrell, 537 U.S. 322, 336,

123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003). Objection Seven is

OVERRULED because “reasonable jurists” would agree

that the Magistrate carefully analyzed that Petitioner’s

counsel’s performance was reasonable. See Miller-El, 537

U.S. at 336 (citing standard for certificate of appealability).

Appendix B

Petitioner’s eighth Objection is that the Magistrate

misapplied the standard governing the reasonableness

of Petitioner’s counsel’s performance. Dkt. No. 49 at 7.

Specifically, Petitioner argues that the Magistrate did

not properly hold Petitioner’s previous counsel to their

duty of investigating mitigating evidence. Id. Upon a de

novo review, the Court finds no error with either counsel

or the Magistrate’s application of law. Objection Eight is

OVERRULED.

IV. CONCLUSION

For these reasons, Petitioner’s Objections (Dkt. No.

49) are OVERRULED (except for Objection 1, which

does not affect this order). The R&R (Dkt. No. 48) is

ADOPTED. The Court GRANTS the Government’s

“Motion for Summary Judgment and Response” (Dkt.

No. 16) as to Petitioner’s first and second claims and

DISMISSES with prejudice all three of his claims. A

certificate of appealability is DENIED, and the Clerk of

the Court is ORDERED to close this case.

Signed on this 9th day of October, 2024.

/s/ Rolando Olvera

Rolando Olvera

United States District Judge

Appendix C JUDGE’S REPORT

APPENDIX C — MAGISTRATE

AND RECOMMENDATION, UNITED STATES

DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF TEXAS, BROWNSVILLE DIVISION,

FILED AUGUST 26, 2024

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

Civil Action No. 1:23-cv-166

MUHAMED PATHE BAH,

Movant,

UNITED STATES OF AMERICA,

Respondent.

MAGISTRATE JUDGE’S

REPORT AND RECOMMENDATION

Muhamed Pathe Bah moves under 28 U.S.C. § 2255

to vacate, set aside, or correct his federal sentence,

arguing in three claims that he received ineffective

assistance of counsel at trial. Dkt. Nos. 1, 3 (collectively,

Bah’s “Motion”). The United States of America (“the

Government”) responded and moved for summary

judgment, asserting that Bah has failed to meet his burden

to prove ineffective assistance of counsel. Dkt. No. 16.1 For

1. The Court references the docket in this § 2255 action using

the “Dkt.” designation. The Court references the docket in Bah’s

underlying criminal cause, No. 1:20-cr-00433-1, using the “CR Dkt.”

designation.

10a

Appendix C

the reasons provided below, the undersigned recommends

that the Court: (1) GRANT the Government’s Motion for

Summary Judgment on Bah’s first and second claims; (2)

DISMISS all three of Bah’s claims; (3) DECLINE to issue

a certificate of appealability; and (4) DIRECT the Clerk

of Court to close this case.

I. Jurisdiction

The Court has federal question subject matter

jurisdiction. See 28 U.S.C. §§ 1331, 2255.

II. Background & Procedural History

On June 26, 2020, Bah robbed the Texas Regional

Bank in Harlingen, Texas. Dkt. No. 4 at 8. During the

robbery, Bah fired one shot, which hit a bank teller in

the head—the teller fell to the ground bleeding, felt a

burning sensation, and temporarily lost his hearing. 2 Id.

at 8-9, 12. Bah then aimed his gun at a second teller and

demanded money; the second teller obliged, filling Bah’s

backpack with greenbacks. 3 Id. at 9-10. Bah fled on his

bicycle only to be apprehended by police soon after. Id. at

9. Police found on Bah a ten-shot, .22 caliber revolver and

2. The teller was taken to the hospital for various tests and

treatments, ultimately receiving over a dozen staples in his scalp.

CR Dkt. No. 63 at 2.

3. As a result of the robbery, the second teller spent a day in

the hospital, noting that she could not breathe, she felt her heart

beating very fast, and she thought she would pass out or suffer a

heart attack. Id. at 14.

11a

Appendix C

a backpack containing stacks of currency totaling $16,500.

Id. at 9, 11. They retrieved surveillance footage from the

bank showing the robbery. Id. at 9.

Police transported Bah to the police station where

they tested his hands for gunshot residue, got a positive

result, and discovered nine rounds and one spent bullet

casing loaded in Bah’s revolver. Id. at 10-11. The police

read Bah his Miranda rights, and Bah admitted that

he entered the bank with the gun but did not remember

firing it. Id. at 11.

On July 21, 2020, a grand jury indicted Bah on one

count of robbery in violation of 18 U.S.C. § 2113(a) and (d)

(“Count One”) and one count of use of a firearm during

a crime of violence in violation of 18 U.S.C. § 924(c)(1)

(A)(iii) (“Count Two”). Dkt. No. 3 at 97. In October 2020, at

Bah’s initial appearance, the Court appointed the Federal

Public Defender to represent Bah. CR Dkt. (October 5,

2020 Minute Entry). At his arraignment in November

2020, Bah informed the Court that he desired to proceed

pro se. CR Dkt. (November 2, 2020 Minute Entry). The

Court warned Bah that proceeding pro se is inadvisable

and then discharged the Federal Public Defender from

the case. Id. At a final pretrial conference on December

2, 2020, Bah confirmed his desire to proceed pro se and

announced ready for trial. CR Dkt. No. 77 at 5. The

Government expressed concern over Bah’s proceeding

pro se given, among other things, his prior schizophrenia

diagnosis. Id. at 5-7. It urged that “given the seriousness

and potential punishment range for this case,” and

because “Bah indicated that he had been diagnosed with

12a

Appendix C

schizophrenia at one point,” which “may be something

that could feed into [his] election [to proceed pro se] . . . it

would behoove us all” to have an attorney interview Bah

to ensure his desire to proceed pro se. Id. at 7, 14. The

Court warned Bah a second time about proceeding pro

se and appointed a Criminal Justice Act Panel attorney

(“Counsel”) as standby trial counsel to assist Bah.4 Id. at

7-8, 15-16.

On December 4, 2020, though ostensibly still

on standby status, Counsel moved to evaluate Bah’s

competency, informing the Court in part that:

During the attorney-client interview, [Bah]

appeared to have a psychological illness and it

appears to [C]ounsel that [Bah] may presently

be suffering from a mental disease or defect to

the extent that he is unable to understand the

nature and the consequences of the proceedings

against him or properly assist in his defense

. . . [and] is unable to understand the nature and

the consequences of his conduct with respect to

the charges filed against him.

CR Dkt. No. 25 at 1. The Court granted the motion (CR

Dkt. No. 29), and psychiatrist Dr. Tomas A. Gonzalez

4. As described in more detail below, throughout this case,

Counsel shifted on Bah’s request from standby status to counsel of

record then back to standby status and then to counsel of record once

more. The undersigned refers to Bah’s trial counsel as “Counsel”

throughout this Report and Recommendation irrespective of

Counsel’s status at any one point.

13a

Appendix C

examined Bah and submitted a report containing his

findings (CR Dkt. No. 33).

Among other things, Dr. Gonzalez’s report describes

the “current status” of Bah’s mental health, Bah’s “past

medical history,” and Bah’s “legal history.” CR Dkt. No.

33 at 2-3. The report lists that: (1) Bah’s family committed

him to certain psychiatric hospitals eight times from

2012 through 2019; (2) Bah received medication for

his mental health; (3) Police arrested Bah in 2016 for

assaulting a government official; and (4) Bah claims he

is schizophrenic, but he was not presenting signs or

symptoms of schizophrenia during the exam. Id. at 3-4.

Based on his examination, Dr. Gonzalez concluded that

Bah was competent to stand trial and assist in his defense.

Id.

At a status conference in March 2021, Bah indicated

that he no longer desired to proceed pro se, and the

Court designated Counsel as Bah’s counsel of record.

CR Dkt. (March 24, 2021 Minute Entry). In April 2021,

Bah once again desired to proceed pro se. CR Dkt. (April

21, 2021 Minute Entry); Dkt. No. 16-1 at 3. The Court

again designated Counsel as standby counsel and set

the trial date for June 28, 2021. CR Dkt. (April 21, 2021

Minute Entry); Dkt. No. 16-1 at 3. On June 25, 2021, Bah

changed his mind once more and requested that Counsel

be reappointed counsel of record, and the Court granted

that request. Dkt. Nos. 3 at 79-80, 16-1 at 3-4.

On June 28, 2021, Bah entered an open plea of guilty

on both counts alleged in the indictment, which the

14a

Appendix C

Court accepted. Dkt. No. 3 at 89. The Court ordered a

presentence investigation report (“PSR”) and scheduled

sentencing for September 22, 2021. Id. at 92-93. The

United States Probation Office filed the PSR on September

21, 2021. Dkt. No. 4 at 6. The PSR summarized the facts

of the case, including that Bah had been diagnosed as

schizophrenic and committed for treatment; described

the United States Sentencing Guidelines (“U.S.S.G.” or

the “Guidelines”) offense level computation; and concluded

that the guidelines range for Count One was fifty-one to

sixty-three months’ imprisonment, and the mandatory

minimum term on Count Two was a consecutive, ten-year

term of imprisonment. Dkt. No. 4 at 20-21. Further, the

PSR stated that the statutory maximum punishment on

Count One was twenty-five years’ imprisonment, and life

imprisonment on Count Two. Id.

On September 22, 2021, the Court held Bah’s

sentencing hearing. CR Dkt. No. 80. Neither party

objected to the PSR. Id. at 2-3. The Government sought

consecutive punishment in the form of twenty-five years’

(300 months’) incarceration on both counts, constituting an

upward departure or variance from the Guidelines range

of a combined 171-183 months. Id. at 6-9. Ultimately, the

Court sentenced Bah to twenty-five years’ incarceration

on Count One and life imprisonment on Count Two—both

the statutory maximums. Id. at 24-25. Bah appealed his

sentence, challenging the Court’s upward variances on

both counts; the Fifth Circuit affirmed Bah’s sentence as

to both counts. United States v. Bah, No. 21-40712, 2023

U.S. App. LEXIS 4682, 2023 WL 2239021, at *4 (5th Cir.

Feb. 24, 2023) (per curiam).

15a

Appendix C

On November 13, 2023, Bah filed his instant Motion

arguing that he received ineffective assistance of counsel

during sentencing when Counsel failed: (1) “to present

mitigating evidence to explain Bah’s history of mental

illness and schizophrenia diagnosis”; (2) “to object to

make fundamental objections to . . . Bah’s case”; and (3)

“to present all formal plea offers by the United States to

. . . Bah” when “there [was] a reasonable probability [Bah]

would have accepted an earlier plea offer had he been

afforded effective assistance of counsel.” Dkt. No. 3 at

2-3. Bah advances multiple arguments within each of the

three listed grounds for ineffective assistance of counsel.

For clarity, the Court will list additional facts pertinent

to its analysis when addressing each issue below.

On January 25, 2024, the Government responded to

Bah’s Motion and moved for summary judgment. Dkt.

No. 16. Bah replied on February 13, 2024. Dkt. No. 22.

The Government filed its surreply on February 29, 2024.

Dkt. No. 24. And Bah filed his sur-surreply on March 6,

2024. Dkt. No. 28. On August 2, 2024, the Court held an

evidentiary hearing limited to Bah’s third issue concerning

plea offers. Dkt. (August 2, 2024 Minute Entry). Bah’s

Motion is now ripe for consideration.

III. Legal Standard

A. 28 U.S.C. § 2255

Postconviction relief under 28 U.S.C. § 2255 is limited

to errors of constitutional dimension that could not have

been raised on direct appeal and that, if left unaddressed,

16a

Appendix C

would result in a complete miscarriage of justice. See

United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir.

1998); see also United States v. Rodriguez-Castro, 814 F.

App’x 835, 837-38 (5th Cir. 2020) (per curiam). Given these

limitations, a federal defendant may move to vacate, set

aside, or correct his sentence under § 2255 only if: (1) the

sentence was imposed in violation of the Constitution or

laws of the United States; (2) the court lacked jurisdiction

to impose the sentence; (3) the sentence imposed exceeds

the statutory maximum; or (4) the sentence is otherwise

subject to collateral attack. 28 U.S.C. § 2255; United States

v. Placente, 81 F.3d 555, 558 (5th Cir. 1996).

B. Summary Judgment Standard

The standard applied when ruling on a motion for

summary judgment is set forth in Rule 56 of the Federal

Rules of Civil Procedure. Fed. R. Civ. P. 56(a). In pertinent

part, Rule 56 provides that a court “shall grant summary

judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Id.; see also Celotex Corp.

v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d

265 (1986) (same). When considering a motion for summary

judgment, the court must view the evidence and “construe

all facts and inferences in the light most favorable to the

nonmoving party.” Valderas v. City of Lubbock, 937 F.3d

384, 388, 774 Fed. Appx. 173 (5th Cir. 2019) (per curiam).

“The movant bears the burden of identifying those

portions of the record it believes demonstrate the absence

of a genuine [dispute] of material fact.” Triple Tee Golf,

Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007). “A

fact is material if its resolution could affect the outcome

17a

Appendix C

of the action.” Dyer v. Houston, 964 F.3d 374, 379 (5th Cir.

2020) (cleaned up). “A dispute is genuine if the evidence

is such that a reasonable jury could return a verdict for

the nonmoving party.” Westfall v. Luna, 903 F.3d 534, 546

(5th Cir. 2018) (per curiam) (cleaned up). In the context

of habeas petitions, the Federal Rules of Civil Procedure

apply to the extent that they do not conflict with the Rules

Governing § 2255 Proceedings. Rule 12, Rules Governing

§ 2255 Proceedings; see also Fed. R. Civ. P. 81(a)(4).

Ineffective Assistance of Counsel

The “Sixth Amendment guarantees a defendant the

right to have counsel present at all ‘critical’ stages of the

criminal proceedings” instituted against him. Missouri

v. Frye, 566 U.S. 134, 140, 132 S. Ct. 1399, 182 L. Ed. 2d

379 (2012) (citing Montejo v. Louisiana, 556 U.S. 778,

786, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009)). Critical

stages include trial and pretrial proceedings—including

the plea-bargaining process. Lafler v. Cooper, 566 U.S.

156, 168, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012). Even

though sentencing does not concern the defendant’s guilt

or innocence, ineffective assistance of counsel during a

sentencing hearing is also constitutionally impermissible.

Id. at 164-65.

Whether a criminal defendant has been denied

effective assistance of counsel is governed by Strickland

v. Washington’s two-part inquiry:

First, the defendant must show that counsel’s

performance was deficient. This requires

showing that counsel made errors so serious

18a

Appendix C

that counsel was not functioning as the

“counsel” guaranteed the defendant by the

Sixth Amendment. Second, the defendant must

show that the deficient performance prejudiced

the defense. This requires show ing that

counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose result

is reliable.

466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

To demonstrate that an attorney’s performance was

constitutionally deficient, a defendant bears the burden

to prove that his counsel’s representation “fell below an

objective standard of reasonableness.” Id. at 687-88. In

reviewing counsel’s performance, the Court must be

“highly deferential,” making every effort “to eliminate the

distorting effects of hindsight,” and must “indulge a strong

presumption that counsel’s conduct [fell] within the wide

range of reasonable professional assistance.” Id. at 689.

To establish prejudice, the convicted 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. “Failure to make the required showing of

either deficient performance or sufficient prejudice defeats

the ineffectiveness claim.” Id.

IV. ANALYSIS

Bah contends that Counsel provided ineffective

assistance of counsel during sentencing for three reasons.

Dkt. No. 3 at 2-3. The Court addresses each contention

in turn.

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(1) Failure to Present Mitigation Evidence

The bulk of the parties’ briefing addresses Bah’s first

claim, in which he asserts that his “[t]rial counsel was

constitutionally ineffective for failing to present mitigating

evidence to explain Bah’s history of mental illness and

schizophrenia diagnosis.” Dkt. No. 3 at 12. Counsel “failed

him,” Bah continues, “by not presenting all arguments or

evidence to help in reaching a fair and just sentence, not

gathering and submitting as much mitigating information

relevant to sentencing as reasonabl[y] possible, and

by not independently investigating the facts relevant

to sentencing and simply relying on the presentence

investigation report (‘PSR’).” Id. at 13. Bah claims that the

PSR merely “touched on [his] history of mental disorders,”

including a diagnosis for “minor schizophrenia” and

inpatient treatment for psychosis episodes, when, in fact,

there were considerable other mental health-related

narratives that should have been raised. Id. at 13-14.

Bah provides affidavits in support of his Motion

from his three siblings and his mother, who live in North

Carolina, cataloguing his mental health history. Id. at

154-57, 313-24. Each relative testified that Bah’s behavior

changed at around age seventeen from a happy, active, and

hygienic kid who was a good student and enjoyed school,

to a kid who dropped out of school, stopped brushing his

teeth, shaved his head, stayed in his room with the lights

off, and laughed and talked to himself. See generally id. at

154-57, 313-24. His family members aver that they moved

on multiple occasions to involuntarily commit Bah to a

behavioral health facility, and that a judge signed orders of

involuntary commitment. See generally id. at 154-57, 313-

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Appendix C

24. They state that Bah was diagnosed with schizophrenia

and began receiving medication in the form of a pill and

a monthly injection. Id. at 318. His family contends that

with medication, Bah began acting like himself again.

Id. He eventually switched from inpatient to outpatient

care. Id. at 156. In 2020, the facility at which Bah received

treatment closed due to COVID-19, purportedly leaving

Bah without the ability to refill his prescription or receive

his monthly shots. Id. Consequently, Bah’s mental health

deteriorated. Id.

At some point in early 2020, Bah learned that

Harlingen has a “low cost of living.” Id. Within two

days of that discovery, he drove to Harlingen from his

home in North Carolina. Id. About two days after that,

Bah “became unreachable.” Id. On June 22, 2020, Bah’s

sister called the Harlingen police department to request

a welfare check of her brother. Id. at 318-19. When

authorities arrived at his rental house, Bah was nowhere

to be found. Id. Four days later, Bah walked into the Texas

Regional Bank, shot a teller, and made off with $16,500.

Id. at 319.

Bah’s family members assert that they reached out to

Counsel to be involved in Bah’s case and to request notice

of Bah’s sentencing date. Dkt. No. 3 at 319. However,

according to the family, when they called Counsel, he “was

uninterested in speaking with” them and “told [them] to

never call him again.” Id. at 323. Each family member

affirmed that they were available and would have testified

for Bah at his sentencing hearing on June 28, 2021. Id. at

157, 315, 319, 323.

21a

Appendix C

Bah also provides the Court with “seven years’ worth

of involuntary commitment and mental health records,”

from September 2012 through July 2019, from “the North

Carolina Court system.” Dkt. No. 3 at 27-35, 159-252.

Among other facts, the records show that:

> In September 2012, Bah’s family brought

him to the hospital because he was talking

about messages from the TV, he exhibited

aggressive behavior toward his siblings, and

he withdrew “from all friends/activities.” Id.

at 172. Bah also scratched his mother on the

way to the emergency room. Id. A doctor

deemed Bah mentally ill and a danger

to himself or others. Id. The Doctor also

noted that Bah was hallucinating and acted

aggressively toward his family. Id. Bah was

committed for thirty days. Id.

> In January 2013, a doctor at the behavioral

health center determined that Bah appeared

paranoid and recommended inpatient

commitment for fourteen days to prevent

harm to Bah and others. Id. at 184-88.

Doctors believed that Bah was exhibiting

signs of schizophrenia. Id. at 184-85. A

North Carolina court determined that Bah

should be committed to a mental health

hospital. Id. at 190.

> In May 2016, Bah was again involuntarily

committed after the North Carolina state

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court found him to be “mentally ill and

dangerous to self or others or mentally ill

and in need of treatment in order to prevent

further disability or deterioration that

would predictably result in dangerousness.”

Id. at 198. The commitment stemmed from

a few incidents during which Bah became

aggressive toward his family members,

threatened his family members, ransacked

his bedroom, punched a hole in the wall, did

not talk to anybody for days, and shaved his

head until it started bleeding. Id. at 200.

> In March 2019, Bah was again committed

to a mental health facility after his family

found him aimlessly wandering the streets,

covered in gasoline, and carrying a gasoline

canister. Id. at 240. The commitment

order states that he held a schizophrenia

diagnosis. Id. Bah’s family provides a video

clip of the incident. Id. at 273.

Bah contends that Counsel’s failure to present the mitigating

evidence resulted in a sentence that “unreasonably fails

to reflect the statutory sentencing factors in 18 U.S.C.

§ 3553(a).” Id. at 36; see 28 U.S.C. § 3553(a) (“Factors to

be considered in imposing a sentence.”).

The Government responds, arguing that Bah’s

ineffective assistance for failure to provide mitigating

evidence claim is meritless because: (1) “Bah instructed

[Counsel] not to contact his family, precluding [Counsel]

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from developing additional mitigation evidence”; and (2)

the district court “was aware of Bah’s mental health issues

and history” when it sentenced Bah. Dkt. No. 16 at 60. As

to its first assertion, the Government provides an affidavit

from Counsel stating in relevant part:

I met with Mr. Bah on August 17, 2021, . . . [and]

I asked Mr. Bah to allow me to speak to his mom

or sister, so that I could get letters in support

of him at sentencing and to give me support

statements or documents as to any mental

issues that he had in the past. He refused to give

me permission to contact them. In fact, under

oath, I asked Mr. Bah on numerous occasions

to give me permission to speak to his family to

help me develop mitigations and to ask them to

appear as character witnesses in person or at

least send me letters of support, and he refused

to give me permission each and every time.

Dkt. No. 16-1 at 4. The Government also notes that Bah

“limited the degree to which [Counsel] could address his

mental health issues, and refused to either apologize to

the victims or allow [Counsel] to apologize on his behalf.”

Dkt. No. 16 at 28, 61-62. As to its second assertion, the

Government contends that even if Counsel provided

deficient performance, Bah cannot prove that he was

prejudiced because the Court was sufficiently informed of

Bah’s mental health history through Bah’s mental health

evaluation, the PSR, Counsel’s arguments at sentencing,

and the Court’s own observations. Id. at 62-63.

24a

Appendix C

In his reply to the Government’s response, Bah

clarifies that his first argument centers not solely on

Counsel’s failure to present mitigation evidence, but

also his failure to reasonably investigate for any such

evidence. Dkt. No. 22. Bah contends that Fifth Circuit

precedent holds that an attorney has a duty to investigate

for mitigation evidence even if the defendant refuses to

consent to the investigation. Id. at 7 (citing Sonnier v.

Quarterman, 476 F.3d 349, 358 (5th Cir. 2007)).

The Government argues in its surreply first that Bah

improperly relies on “capital murder death sentences

cases to support his claim that counsel was ineffective” for

allegedly failing to investigate for and present mitigation

evidence and, in any event, even under the capital murder

standard, Bah’s claim fails. Dkt. No. 24 at 2, 9-10. The

Government claims there is no constitutional duty to

present mitigation evidence in non-capital cases. Id. at 8-9.

The Government then contends that under Supreme Court

and Fifth Circuit precedent, a defendant’s instruction not

to present mitigation evidence forecloses an ineffective

assistance claim for failing to investigate for mitigation

evidence. Id. at 13-15 (first citing Schriro v. Landrigan,

550 U.S. 465, 478, 127 S. Ct. 1933, 167 L. Ed. 2d 836 (2007);

and then citing Balentine v. Lumpkin, No. 18-70035, 2021

U.S. App. LEXIS 22909, 2021 WL 3376528, at *7 (5th

Cir. Aug. 3, 2021) (per curiam)). And the Government

asserts that Bah’s argument “comes down to a matter of

degrees.” Id. at 17. That is, Bah’s habeas evidence merely

“provide additional details on Bah’s childhood and mental

health episodes,” and “[n]one of the evidence establishes

any additional substantive issues that th[e] Court was not

25a

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already aware of at sentencing—namely that Bah had a

mental health history with a diagnosis of schizophrenia.”

Id.

Finally, Bah responds in his sur-surreply, arguing

among other things that “[w]hile there may not be a

constitutional requirement that mitigating evidence be

presented in a non-capital case, there is a constitutional

right to effective assistance of counsel, and for counsel

to deliver effective assistance, counsel has a duty to

investigate.” Dkt. No. 28 at 5. Bah also takes issue with the

Government’s “matter of degrees” argument because, per

Bah, Counsel conducted no investigation at all. Id. at 9-10.

“[C]ounsel has a duty to make reasonable investigations

or to make a reasonable decision that makes particular

investigations unnecessary.” Strickland, 466 U.S. at

691. The Supreme Court “has explicitly rejected a

‘constitutional duty to investigate’ applicable to all cases,

instead emphasizing that the ‘constitutionally protected

independence of counsel’ precludes the establishment

of a ‘particular set of detailed rules’ or even ‘specific

guidelines’ beyond reasonableness.” Clark v. Thaler, 673

F.3d 410, 419 (5th Cir. 2012) (quoting Cullen v. Pinholster,

563 U.S. 170, 194-95, 131 S. Ct. 1388, 179 L. Ed. 2d 557

(2011)). Accordingly, “[i]n any ineffectiveness case, a

particular decision not to investigate must be directly

assessed for reasonableness in all the circumstances,

applying a heavy measure of deference to counsel’s

judgments.” Strickland, 466 U.S. at 691. Courts must

“judge the reasonableness of counsel’s challenged conduct

on the facts of the particular case, viewed as of the time

26a

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of counsel’s conduct.” Id. The Supreme Court “long ha[s]

recognized that ‘[p]revailing norms of practice as reflected

in American Bar Association standards . . . are guides

to determining what is reasonable[.]’” United States v.

Juarez, 672 F.3d 381, 388 (5th Cir. 2012) (quoting Padilla

v. Kentucky, 559 U.S. 356, 366-67, 130 S. Ct. 1473, 176 L.

Ed. 2d 284 (2010)). However, the American Bar Association

(“ABA”) standards are “only guides, and not inexorable

commands.” Padilla, 559 U.S. at 367 (cleaned up). While

the “standards may be valuable measures of the prevailing

professional norms of effective representation,” id., the

ultimate test remains one of reasonableness under the

circumstances, Strickland, 466 U.S. at 689-90; see Clark,

673 F.3d at 419.

On that note, Bah relies on Sonnier v. Quarterman,

476 F.3d 349 (5th Cir. 2007), for the proposition that “a

defendant’s refusal to consent to counsel undertaking

more extensive and in-depth discussions with the

defendant’s family and acquaintances to determine the

nature and extent of the mitigation evidence available is

not a reasonable grounds for their failure to do so.” Dkt.

No. 22 at 7 (cleaned up). Sonnier stemmed from a death

row inmate’s 28 U.S.C. § 2254 petition. Sonnier, 476 F.3d

at 354. In that case, at sentencing, “Sonnier’s attorneys,

pursuant to [Sonnier’s] wishes and instructions, did not

present any mitigation evidence. Sonnier, on the record,

confirmed that he had consistently instructed his attorneys

not to present any mitigation evidence.” Id. at 355. The

Texas state court sentenced Sonnier to death. Id. Sonnier

later filed his federal habeas petition, which was denied

along with his request for a certificate of appealability

(“COA”). Id. Sonnier then requested a COA from the

27a

Appendix C

Fifth Circuit contending, among other things, that his

trial counsel was ineffective for failing to investigate and

present mitigation evidence at the punishment phase of

his trial. Id.

Addressing the deficient performance Strickland

prong, the Fifth Circuit explained that in Strickland,

the Supreme Court “rel[ied] upon the guideposts of the

ABA’s Guidelines for the Appointment and Performance

of Counsel in Death Penalty Cases, [when] not[ing] that

counsel has a duty to make reasonable investigations

or to make a reasonable decision that makes particular

investigations unnecessary.” Id. at 357- 58 (citing

Strickland, 466 U.S. at 691). At the time, the version of

ABA standards for death penalty cases in place provided

that “investigation for preparation of the sentencing phase

should be conducted regardless of any initial assertion

by the client that mitigation is not to be offered.” Id. at

358 n.3 (quoting ABA, Guidelines for the Appointment

and Performance of Counsel in Death Penalty Cases

§ 11.4.1c (1989)). So, the Fifth Circuit, “[a]pplying that

standard,” concluded “that the trial attorneys stopped

short of making a reasonable investigation,” and that

“Sonnier’s refusal to consent to their undertaking more

extensive and in-depth discussions with his family and

acquaintances to determine the nature and extent of the

mitigation evidence available was not reasonable grounds

for their failure to do so.” Id. at 358 (emphasis added). 5

5. The Fifth Circuit concluded, however, that Sonnier could

not meet his burden to prove the prejudice prong of Strickland, so

it denied his request for a certificate of appealability. Sonnier v.

Quarterman, 476 F.3d 349, 358-59 (5th Cir. 2007).

28a

Appendix C

That standard does not apply in the non-death

penalty context within the “criminal justice standards

for the defense function” cited by Bah here—indeed,

they specify that “the death penalty differs from other

criminal penalties” and informs counsel in capital cases

to reference the applicable death penalty standards.

See ABA, Criminal Justice Standards for the Defense

Function, § 4-1.2(g) (4th ed. 2017) (“Because the death

penalty differs from other criminal penalties, defense

counsel in a capital case should make extraordinary

efforts on behalf of the accused and, more specifically,

review and comply with the ABA Guidelines for the

Appointment and Performance of Defense Counsel in

Death Penalty Cases.”). Instead, in non-capital offenses,

counsel maintains a “duty to investigate in all cases, and

to determine whether there is a sufficient factual basis

for criminal charges.” Id. § 4-4.1(a). The standard also

provides that “[t]he duty to investigate is not terminated

by factors such as the apparent force of the prosecution’s

evidence, a client’s alleged admissions to others of facts

suggesting guilt, a client’s expressed desire to plead guilty

or that there should be no investigation, or statements to

defense counsel supporting guilt.” Id. § 4-4.1(b). Unlike in

the death penalty context, the standard does not specify

its applicability or necessity in the sentencing phase of

trial and for mitigation purposes. Id. And as applicable

here, that standard also does not provide that an attorney

must disregard a defendant’s instructions not to contact

specific witnesses, like one’s parents and siblings. Id.; see

also Neiheisel v. United States, No. 3:17-CR-89-BJD-JBT,

2022 U.S. Dist. LEXIS 205005, 2022 WL 17534123, at *8

(M.D. Fla. Sept. 27, 2022) (“Nor do the ABA standards

29a

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provide, as Lamos suggested, that an attorney must

disregard a client’s directive not to contact a specific

witness even when the client has not suggested that the

witness would be helpful.”), adopted by, No. 3:17-CR089-BJD-JBT, 2022 U.S. Dist. LEXIS 204391, 2022 WL

16833629 (M.D. Fla. Nov. 9, 2022); cf. Richmond v. United

States, No. 4:15CR00028-001, 2019 U.S. Dist. LEXIS

58676, 2019 WL 1499160, at *5 (E.D. Tex. Apr. 5, 2019)

(suggesting that the reasonableness standard applied to

counsel’s failure to investigate and present mitigation

evidence in the death penalty context differs from the

standard “in the context of a non-capital case after a

plea of guilty pursuant to a plea agreement”). For these

reasons, to the extent it bears on the reasonableness of

Counsel’s performance, the ABA standards Bah cites and

Sonnier provide little guidance here.6

The Government cites Schriro v. Landrigan, 550 U.S.

465, 127 S. Ct. 1933, 167 L. Ed. 2d 836 (2007), Balentine,

2021 WL 3376528, at *7, Shore v. Stephens, No. CV H-131898, 2016 WL 687563, at *11 (S.D. Tex. Feb. 19, 2016),

Ramirez v. Davis, 780 F. App’x 110, 119-20 (5th Cir. 2019),

and Villanueva v. Stephens, 619 F. App’x 269, 273-74 (5th

Cir 2015) (per curiam), for the proposition that “a defendant

who refuse[s] to allow the presentation of any mitigation

evidence could not establish Strickland prejudice based

6. Bah also cites Soffar v. Dretke, 368 F.3d 441, 477 (5th Cir.

2004), and Escamilla v. Stephens, 749 F.3d 380, 392 (5th Cir. 2014),

for support. These cases, too, are distinguishable. See Soffar, 368 F.3d

at 477 (death penalty case where counsel’s inadequate investigation

was not due to defendant’s instructions not to investigate); Escamilla,

749 F.3d at 392 (death penalty case relying on Sonnier).

30a

Appendix C

on his counsel’s failure to investigate further possible

mitigating evidence,” because “a competent defendant’s

instructions are entitled to be followed by counsel” as

the defendant is the “master of his own defense.” Dkt.

No. 24 at 13, 13-15. While an accurate recitation of the

stated rule, here, according to the evidence in the record,

Bah did not disallow the investigation or presentation of

any mitigation evidence, but only Counsel’s investigation

and presentation of testimony from his family and Bah’s

medical records. See Dkt. Nos. 16 at 28, 61-62; 16-1 at 4.

Nevertheless, family testimony and medical records are

the two focuses of Bah’s briefing, so the undersigned only

addresses the same.

In his affidavit, Counsel states that he asked Bah for

permission to speak to Bah’s mother or sister to obtain

“support statements or documents as to any mental

issues that he had in the past” for use at sentencing, but

Bah refused. Dkt. No. 16-1 at 4. After Bah’s sentencing,

Counsel asked Bah to answer some questions on the

record:

[Counsel]

Now I . . . just want to ask you on

the record, sir, prior to today, I . . .

did go visit you at the jail on several

occasions and I asked you to give

me permission to reach out to your

family so they could maybe write a

letter of reference or something on

your behalf; is that correct?

[Bah]

Yeah.

31a

Appendix C

[Counsel]

And you said, no. You did not allow

me to do that correct?

[Bah]

That’s true.

Dkt. No. 3 at 82. Bah does not dispute that he informed

Counsel not to contact his family for records or testimony.

This evidence precludes a deficiency finding regarding

Counsel’s alleged failure to interview and collect medical

records from Bah’s family members. After being found

competent to assist in his defense, Bah directed Counsel

not to interview or collect records from his family members,

and Counsel complied. Bah cannot now fault Counsel for

following his directions. See Shore v. Davis, 845 F.3d 627,

633 (5th Cir. 2017) (per curiam) (“A defendant cannot raise

a Strickland claim based on counsel’s compliance with

his instructions.”); Roberts v. Dretke, 356 F.3d 632, 638

(5th Cir. 2004) (“[W]hen a defendant blocks his attorney’s

efforts to defend him, including forbidding his attorney

from interviewing his family members for purposes of

soliciting their testimony as mitigating evidence during

the punishment phase of the trial, he cannot later claim

ineffective assistance of counsel.”); cf. Mullis v. Lumpkin,

70 F.4th 906, 914 (5th Cir. 2023) (stating that counsel’s

request for a mental health evaluation constituted a form

of investigation).

Finding that Counsel did not provide deficient

performance, the Court need not assess Bah’s assertion

that his sentence would have been different had his

family’s testimony and his medical records been before

the Court at sentencing. See Strickland, 466 U.S. at 694;

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Appendix C

Amos v. Scott, 61 F.3d 333, 348 (5th Cir. 1995) (“In deciding

ineffective assistance claims, a court need not address

both prongs of the conjunctive Strickland standard, but

may dispose of such a claim based solely on a petitioner’s

failure to meet either prong of the test.”); see also Motley

v. Collins, 18 F.3d 1223, 1226 (5th Cir. 1994) (“[I]n deciding

ineffectiveness claims, we need not address both prongs

of the Strickland test.”). Nevertheless, even assuming

without finding that Counsel was deficient, the Court

finds that Bah cannot prove that he was prejudiced. See

Strickland, 466 U.S. at 694. To establish prejudice, Bah

must prove that but for his family members’ testimony

and the health records, the Court would have imposed a

shorter sentence. See id. at 687, 694.

As stated above, concerned with Bah’s mental health,

Counsel requested a psychiatric evaluation, which the

Court ordered. CR Dkt. Nos. 25, 29. Dr. Gonzalez then

interviewed Bah, chronicled his mental health history,

and subjected him to certain forensic tests. CR Dkt.

No. 33. Dr. Gonzalez learned that Bah’s family had him

involuntarily committed eight times from 2012 through

2019, and that Bah carried a schizophrenia diagnosis. Id.

at 2. Dr. Gonzalez concluded that Bah showed no current

signs or symptoms of schizophrenia, was competent to

stand trial, and was capable of assisting in his defense.

Id. at 3-4.

After being found competent to do so, Bah pleaded

guilty to each count in his indictment. CR Dkt. (June 28,

2021 Minute Entry). The only issue that then remained

was sentencing before the Court. Before sentencing, and

33a

Appendix C

in addition to Dr. Gonzalez’s report, Counsel and the Court

possessed the PSR, which included, among other things,

information gleaned from interviews with Bah’s mother

and sister summarizing Bah’s mental health history. Dkt.

No. 4 at 18-20. The affidavits and medical records Bah

presents here, while heavier on specific details of certain

mental health episodes, contain the same basic information

listed in the PSR—that Bah: (1) was diagnosed with

schizophrenia; (2) received medical treatment in North

Carolina; (3) suffered from psychosis episodes and was

involuntarily committed to a mental health facility

multiple times from 2012 through 2019; (4) was medicated

and began feeling better; (5) stopped taking his medication

when released from his commitment and his mental

health deteriorated; and (6) was in denial that he suffered

from a mental condition. Id. The Court also possessed

surveillance video of Bah’s robbery showing Bah shooting

the bank teller; victim impact statements detailing what

the Fifth Circuit described as “the harrowing facts of

the case”; and the Court observed Bah and listened to

Bah’s brief testimony throughout his various proceedings

in which he asserted that he had been diagnosed with

schizophrenia and refused to apologize to his victims.

Dkt. No. 4; CR Dkt. Nos. 65, 80 at 11, 63-63-5; Bah, 2023

U.S. App. LEXIS 4682, 2023 WL 2239021, at *4. With

all that information in hand, the specific details of Bah’s

psychosis episodes—most occurring years earlier—were

of limited additional value to present in mitigation. Thus,

the undersigned does not find that their presentation

to the Court at sentencing would have changed Bah’s

sentence. See Strickland, 466 U.S. at 694.

34a

Appendix C

Bah has failed to meet his burden to prove that

Counsel’s performance was deficient or that he was

prejudiced. Id. The undersigned recommends that the

Court grant the Government summary judgment on Bah’s

claim of ineffective assistance of counsel for Counsel’s

alleged failure to investigate or present mitigation

evidence.

(2) Failure to Make Certain Objections to the PSR

By his second claim with five sub-claims, Bah argues

that Counsel was ineffective for failing to make various

objections to the PSR. Dkt. No. 3 at 40. Specifically, Bah

argues that:

There were at least five objections counsel could

have made to the PSR, but which he did not

make: (1) Counsel failed to object to a four-level

increase for a victim sustaining “serious bodily

injury,” (2) Counsel failed to object to the PSR’s

failure to comply with Rule 32 of the Federal

Rules of Criminal Procedure, (3) Counsel failed

to object to the PSR’s finding that factors were

present to support an upward departure, (4)

Counsel advocated against Mr. Bah by taking

an adverse position and recommending an

upward departure/variance of at least five

years, and (5) Counsel failed to dispute the

United States’s mischaracterization of Mr.

Bah’s only prior misdemeanor conviction as a

“conviction of violence conviction” [sic]. (Exs.

4, 9). Had counsel made these objections, this

35a

Appendix C

Court could have subtracted two points off the

offense level, reducing the Guideline range from

fifty-one to sixty-three months to forty-one to

fifty-one months for Count One. See U.S.S.G.

§5A.

Id. 7 For various reasons considered below, the Government

asserts that each of these five claims is meritless. Dkt. No.

16 at 42. The Court addresses the claims in turn.

(i) Failure to object to enhancement for “serious

bodily injury”

Bah asserts that Counsel was ineffective when he

“failed to object to the absolute lack of evidentiary support

necessary for the Court to make a finding that the offense

caused ‘serious bodily injury’” and “failed to object to the

PSR’s erroneous application of a four-level increase for

serious bodily injury, which resulted in an improperly

calculated offense level and Guideline range.” Dkt. No. 3

at 41. According to Bah, the PSR exaggerated the teller’s

injury by repeated reference to his being “shot in the

head” when there is no evidence that the bank teller’s

headwound was any more serious than a mere graze. Id.

at 41-43.

The Government responds, arg uing that Bah

“minimizes the injury he inflicted by shooting the bank

7. In arguing the deficient performance prong of Strickland for

the five sub-arguments of his second issue, Bah cites no case law to

assist the Court in its analysis. See Dkt. No. 3 at 40-56.

36a

Appendix C

teller in the head and ignores the text of the guidelines.”

Dkt. No. 16 at 43. It highlights that the teller was treated at

a hospital, underwent testing, and received “over a dozen

staples in [his] scalp.” Id. at 44; see also CR Dkt. No. 63 at

1-4 (the teller’s victim impact statement). The Government

asserts that courts “have affirmed the [serious bodily

injury] enhancement as applied to lesser injuries than

presented here” and “Counsel cannot be deficient for

failing to press a frivolous point.” Dkt. No. 16 at 44-45.

Attached to its response is an affidavit by Counsel stating

that objecting to the serious bodily injury designation here

would have been frivolous and potentially violative of the

Rules of Professional Conduct. Dkt. No. 16-1 at 4. The

Government also highlights that claims raising Guidelines

errors are not cognizable in § 2255 motions. Dkt. No. 16

at 42-43 n.12; see United States v. Williamson, 183 F.3d

458, 462 (5th Cir. 1999) (“Misapplications of the Sentencing

Guidelines . . . are not cognizable in § 2255 motions.”)).

The Government contends that Bah’s PSR claims “are

thinly veiled in . . . Bah’s [Motion] and brief as ineffective

assistance claims,” purportedly as an attempt to skirt the

former argument’s restriction in this § 2255 action. Dkt.

No. 16 at 42-43 n.12.

Section 2B3.1(b)(3)(B) of the Guidelines calls for a

four-level sentence increase if the victim of a robbery

sustained a “serious bodily injury.” U.S.S.G. § 2B3.1(b)

(3)(B). “Serious bodily injury” is defined in the Guidelines

commentary as an “injury involving extreme physical

pain or the protracted impairment of a function of a

bodily member, organ, or mental faculty; or requiring

medical intervention such as surgery, hospitalization, or

physical rehabilitation.” Id. § 1B1.1. cmt. n.(1)(M); see also

37a

Appendix C

United States v. Nelson, No. 22-12511, 2023 U.S. App.

LEXIS 22981, 2023 WL 5608430, at *3 (11th Cir. Aug.

30, 2023) (per curiam) (unpublished) (“[T]he Guidelines

themselves do not define serious bodily injury.”). Courts

have found a wide spectrum of injuries to constitute

serious bodily injuries. See, e.g., United States v. Lavert,

830 F. App’x. 894, 895 (9th Cir. 2020) (concluding no error

when district court held defendant caused serious bodily

injury when he “struck the victim on the head with a

gun, causing a laceration requiring nine staples”); United

States v. Urbina-Robles, 817 F.3d 838, 847 (1st Cir. 2016)

(concluding the same regarding a lesion on one victim’s

head, multiple bruises on both victims’ faces and heads,

and necessary continued psychiatric care for trauma);

United States v. Clay, 90 F. App’x. 931, 933 (6th Cir. 2004)

(concluding the same when defendant pistol whipped

the victim causing him to lose consciousness, bleed, and

require sutures); United States v. Reed, 26 F.3d 523, 531

(5th Cir. 1994) (holding that post-traumatic stress disorder

can constitute a “serious bodily injury”); United States v.

Moore, 997 F.2d 30, 37 (5th Cir. 1993) (concluding no error

when district court held defendant caused serious bodily

injury where victim had extremely painful gunshot flesh

wound in leg requiring a two-hour emergency room visit

but no surgery).

Per the record, one bank teller “was shot at the top

right side of [his] head.”8 CR Dkt. No. 63 at 2. He fell to the

8. Notably, Bah agreed with the Government’s factual summary

of his offense stating, among other things, that he shot one teller “in

the head” and “assaulted and put in jeopardy the life of a person by

the use of a dangerous weapon, a firearm.” Dkt. Nos. 3 at 91, 43-2;

CR Dkt. No. 49.

38a

Appendix C

ground, was bleeding profusely, and temporarily lost his

hearing. Dkt. No. 4 at 12. He “was taken to Valley Baptist

Medical Center and underwent a full body CT scan to

ensure that there was not any bleeding in his head.” CR

Dkt. No. 63 at 2. He “was monitored for several hours and

had [his] head wound cleaned and received over a dozen

staples in [his] scalp.” Id. The undersigned finds that these

injuries would have supported a “serious bodily injury”

designation and enhancement. See, e.g., Lavert, 830 F.

App’x. at 895; Clay, 90 F. App’x. at 933. Therefore, Counsel

was not deficient for failing to object to the designation,

and Bah was not prejudiced. See United States v. Kimler,

167 F.3d 889, 893 (5th Cir. 1999) (“An attorney’s failure to

raise a meritless argument . . . cannot form the basis of a

successful ineffective assistance of counsel claim because

the result of the proceeding would not have been different

had the attorney raised the issue.”); Smith v. Puckett, 907

F.2d 581, 585 n.6 (5th Cir. 1990) (“Counsel is not deficient

for, and prejudice does not issue from, failure to raise a

legally meritless claim.”); see also Strickland, 466 U.S. at

687. The undersigned recommends that the Court grant

the Government summary judgment on this claim.

(ii) Failure to object to the PSR’s noncompliance

with Rule 32 of the Federal Rules of Criminal

Procedure

Federal Rule of Criminal Procedure 32(d) sets forth

the requirements of a PSR. See Fed. R. Crim. P. 32.

Among other things, the PSR must “identify any factor

relevant to . . . the appropriate kind of sentence, or . . .

the appropriate sentence within the applicable sentencing

39a

Appendix C

range,” id. R. 31(d)(1)(D), and “any other information that

the court requires, including information relevant to the

factors under 18 U.S.C. § 3553(a),” id. R. 31(d)(2)(G); see

18 U.S.C. § 3553(a) (“Factors to be considered in imposing

a sentence.”). Bah asserts that “[i]nstead of presenting

an objective review of all factors relevant to determining

the sentence, the PSR injected its own subjective and

unqualified medical opinions in alleging Mr. Bah caused

‘serious bodily injury.’” Dkt. No. 3 at 44. He also alleges

that the PSR lacks sufficient detail of his mental health

history. Id. at 45. Given the Probation Officer’s purported

violation of Rule 32, Bah contends that Counsel was

ineffective for failing to object to the PSR. Id.

The Government responds by noting, as it did above,

that this claim too is “thinly veiled as an ineffective

assistance claim, but is actually an attack on the PSR

and the Probation Officer.” Dkt. No. 16 at 46. It states

that “Bah does not point to any particular section of Rule

32 that the PSR failed to comply with.” Id. It directs the

Court to Counsel’s affidavit in which he states that Bah’s

argument that he “did not object [to the fact] that the PSR

violated Rule 32” is “broad, nonspecific[,] and [he] was not

aware of any improper issue with the PSR that would give

rise to a violation of Rule 32.” Dkt. No. 16-1 at 4.

Indeed, Bah does not specify which of and how the

PSR requirements were not met and cites no authority

beyond a general Rule 32 citation in advancing this subclaim to help clarify his argument for the Court. See

Dkt. No. 3 at 44-46. To the extent that Bah argues that

Counsel’s failure to object to the PSR prejudiced him

40a

Appendix C

because the PSR recommended a four-level increase for

a “serious bodily injury” to the victim, the undersigned

has already found that a serious bodily injury existed

to support the increase, making that claim meritless.

See Kimler, 167 F.3d at 893. The only other contention

Bah advances is that “[C]ounsel’s failure to object to

the PSR’s failure to comply with Rule 32 and failure

to adequately present Mr. Bah’s mental health history

was clearly detrimental to Mr. Bah.” Dkt. No. 3 at 46.

Critically, lacking further development, this argument

does not suffice to prove that Counsel was deficient. See

Strickland, 466 U.S. at 687; United States v. Holmes, 406

F.3d 337, 361 (5th Cir. 2005) (“Mere conclusory allegations

in support of a claim of ineffective assistance of counsel

are insufficient to raise a constitutional issue.” (citation

omitted)). The undersigned recommends that the Court

grant the Government summary judgment on this claim.

(iii) Failure to object “to the PSR’s finding that

factors were present to support an upward

departure/variance”

Bah argues that the PSR improperly calls for an

upward departure from the Guidelines sentencing range.

Dkt. No. 3 at 46; see Dkt. No. 4 at 23-24. Count One of

Bah’s indictment is for bank robbery; Count Two is for

use of a firearm during a crime of violence. Dkt. No. 3

at 97-100. Under Guidelines § 2B3.1(b)(2), a seven-level

increase is warranted when “a firearm was discharged”

during an offense’s commission. U.S.S.G. § 2B3.1(b)(2).

But when, as here, the indictment lists a second count

with a mandatory, consecutive minimum sentence, the

41a

Appendix C

enhancement is not added “to avoid unwarranted double

counting.” Id. § 3D1.1 cmt. n.2.

Bah concedes that the PSR is correct when—in line

with the Guidelines—it states as follows:

Specific Offense Characteristics: Pursuant

to USSG § 2B3.1(b)(2)(A), if a firearm was

discharged, a seven-level increase is applicable.

Although Bah entered the bank and shot the

victim . . . in the head, this enhancement is not

applicable pursuant to USSG § 3D1.1, comment.

(n.2). This instructions’ [sic] main emphasis is to

avoid unwarranted double counting; therefore,

the offense level for Count 1 under USSG

§ 2B3.1 is computed without application of the

enhancement for weapon possession or use as

otherwise required by subsection (b)(2) of that

guideline.

Dkt. No. 4 at 13-14. In other words, although Bah

discharged a firearm during the commission of his robbery,

the seven-level enhancement under § 2B3.1(b)(2)(A) was

not included in the underlying sentence level calculation

because a mandatory, consecutive sentence was already

included for Count Two of Bah’s indictment for use of a

firearm during a crime of violence.

Bah disagrees with the PSR, though, in that it includes

a section listing “factors that may warrant departure and/

or variance.” Dkt. No. 4 at 23-24; see Dkt. No. 3 at 47. In

that section, the PSR states:

42a

Appendix C

Pursuant to USSG § 5K 2.6, if a weapon

or dangerous instrumentality was used or

possessed in the commission of the offense

the Court may increase the sentence above

the authorized guideline range. The extent

of the increase ordinarily should depend on

the dangerousness of the weapon, the manner

in which it was used, and the extent to which

its use endangered others. The discharge of a

firearm might warrant a substantial sentence

increase.

In committing the robbery in the instant

offense, the defendant discharged his handgun

and shot the victim in the head. The victim

suffered serious bodily injury to his head and

could have been killed. Additionally, after

the victim was shot, the defendant pointed

the handgun to another teller demanding the

money be given to him. The teller also received

medical treatment and may have suffered a

minor heart attack or anxiety attack as a result.

Dkt. No. 4 at 23-24. “[F]or reasons unknown and

unexplained in the PSR,” Bah contends, “the United

States Probation Office ignored the directives of [§ 3D1.1

of] the Guidelines by suggesting factors explicitly excluded

from consideration in determining the offense level could

somehow justify an upward departure from the offense

level [under § 5K2.6].” Dkt. No. 3 at 47. Bah evidently

treats the sentencing enhancement considerations under

§ 2B3.1 the same as a sentencing departure consideration

43a

Appendix C

under § 5K2.6—if improper under § 2B3.1, then improper

under § 5K2.6.

The Government responds by noting again that “[t]his

is another issue in which Bah attacks the PSR and the

Probation Officer, couching it as an ineffective assistance

claim.” Dkt. No. 16 at 50. It further highlights that “courts

have affirmed upward departures under § 52K.6, even in

cases where [use of a firearm during a crime of violence]

convictions were involved, when defendants intentionally

discharged firearms at other individuals.” Id. at 51. And

critically, it notes that the Court’s sentence represented a

variance, not a departure from the Guidelines range. Id.

at 52; see United States v. Watley, 46 F.4th 707, 718 n.7

(8th Cir. 2022) (“A departure occurs within the context

of the Guidelines themselves, which prescribe that the

sentencing court should depart from the Guidelines range

in certain situations . . . . A variance, however, results from

a separate analysis of whether a non-Guidelines sentence

would be more appropriate under the circumstances

pursuant to 18 U.S.C. § 3553(a).” (cleaned up)); United

States v. Jacobs, 635 F.3d 778, 781-82 (5th Cir. 2011) (per

curiam) (describing the differences between departures

and variances and noting that the two “are not one and

the same”).

The Court need only address the Government’s latter

point because it is dispositive. Bah’s sub-claim fails in part

because he cannot prove that he was prejudiced by the

Court’s application of the Guidelines’ departure sections,

as the Court did not depart from the Guidelines range to

impose its sentence—rather, it varied from it. CR Dkt.

44a

Appendix C

No. 73 at 2-3; cf. Watley, 46 F.4th at 718 n.7; Jacobs, 635

F.3d at 781-82. In other words, Bah was not prejudiced by

the PSR’s (proper or improper) inclusion of information

relative to departures when the Court did not depart from

Bah’s sentence.9

In a final argument, Bah asserts that Counsel was

ineffective by failing to object to the PSR’s “improper

use of subjective and emotionally charged language”

used to “justify its position that factors were present to

warrant an upward departure.” Dkt. No. 3 at 48-49. Bah

opposes the PSR’s statement that the first bank teller

was “shot in the head,” that the teller suffered “serious

bodily injury,” and that the teller “could have been killed.”

Id. at 48-50. He also rejects the PSR’s assertion that the

second teller “may have suffered a minor heart attack

or anxiety attack” when Bah pointed a gun at him.” Id.

However, again, the Court did not depart from Bah’s

Guidelines range, it varied from it. Further, even before

the Probation Office prepared the PSR, Bah agreed

with the Government’s factual summary of his offense

stating, among other things, that he shot one teller “in

the head” and “assaulted and put in jeopardy the life of

a person by the use of a dangerous weapon, a firearm.”

See Dkt. No. 3 at 91; CR Dkt. No. 49. Bah pleaded guilty

to those offenses. Dkt. No. 3 at 89. Counsel, then, was

9. On direct appeal, Bah “challeng[ed] the sufficiency of the

district court’s reasoning in” varying upward and “imposing [a

sentence of] 300 months and life in prison, respectively.” United

States v. Bah, No. 21-40712, 2023 U.S. App. LEXIS 4682, 2023 WL

2239021, at *1 (5th Cir. Feb. 24, 2023) (per curiam). As noted, the

Fifth Circuit affirmed Bah’s sentence. Id. at 1-4.

45a

Appendix C

not ineffective for failing to object to the information in

the PSR to which Bah previously admitted. See Clark v.

Collins, 19 F.3d 959, 966 (5th Cir. 1994) (“Failure to raise

meritless objections is not ineffective lawyering; it is the

very opposite.”). Even assuming without finding deficient

performance for failure to object to the PSR’s inclusion

of the opposed information, the information was provided

to the Court elsewhere in the record.10 Thus, the Court

cannot find that but for Counsel’s failure to object to the

information in the PSR, Bah’s sentence would be different.

See Strickland, 466 U.S. at 694.

The undersigned recommends that the Court grant

the Government summary judgment on this claim.

(iv) Counsel “should not have . . . advocated

against Mr. Bah by recommending an upward

departure/variance of at least five years”

Bah next claims that Counsel was ineffective “by

recommending an upward departure/variance of at

least five years.” Dkt. No. 3 at 50. “While the Guidelines

provided an advisory range of 171 months to 183 months

imprisonment,” Bah continues, “[C]ounsel inexplicably

argued for a sentence of 243 months, thus adding five

years to the high-end of the advisory Guideline range and

10. In affirming the Court’s sentence variance in Bah’s direct

appeal, the Fifth Circuit cited as a reason for its conclusion the

Court’s “intimate[] familiar[ity] with the harrowing facts of the

case[.]” Bah, 2023 U.S. App. LEXIS 4682, 2023 WL 2239021, at *4.

Those facts include “Bah’s admission of guilt,” Bah’s decision not

to allocute, and details contained in victim impact statements. Id.

46a

Appendix C

over six years to the low-end of the advisory Guideline

range.” Id. The Government contends that Counsel “was

pursuing an advisable trial strategy given the egregious

facts of Bah’s offense, which were highly likely to lead to an

upward departure or variance.” Dkt. No. 16 at 53. That is,

with a “variance or departure [being] highly likely,” it was

sound strategy to recommend a sentence of 283 months’

imprisonment in the face of the Government’s request for

600 months’ imprisonment. Id. at 53-54.

“Judicial scrutiny of counsel’s performance must be

highly deferential.” Strickland, 466 U.S. at 689. “It is all

too tempting for a defendant to second-guess counsel’s

assistance after conviction or adverse sentence, and it is

all too easy for a court, examining counsel’s defense after

it has proved unsuccessful, to conclude that a particular

act or omission of counsel was unreasonable.” Id. Courts

“must indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional

assistance” and “that, under the circumstances, the

challenged action might be considered sound trial

strategy.” Id. (cleaned up).

At the September 22, 2021 sentencing hearing, the

Government informed the Court that: (1) Bah’s Guidelines

range on Count One was fifty-one to sixty-three months’

imprisonment; (2) a consecutive, minimum ten-year

sentence was mandatory on Count Two, making the

effective Guidelines range 171-183 months’ imprisonment

for both counts; (3) Count One has a statutory maximum

sentence of twenty-five years’ imprisonment, and Count

Two a maximum sentence of life imprisonment; (4) the

47a

Appendix C

Government sought an upward departure and variance,

as per its notice and intent filed August 27, 2021, of

twenty-five years’ incarceration on both counts to run

consecutively, because the Guidelines “punishment range

at the high end . . . grossly underrepresents the facts of

this crime and the dangerousness of Mr. Bah”—including

the fact that Bah shot one bank teller within five seconds

of approaching him; and (5) the victims of Bah’s crime

continue to suffer from emotional trauma. CR Dkt. No.

80 at 5-17. The Court also possessed the PSR detailing,

among other things, Bah’s robbery and mental health

history; Bah’s competency evaluation; and surveillance

video of Bah’s robbery—including his shooting the bank

teller. Dkt. No. 4; CR Dkt. Nos. 65, 80 at 11.

With that information before the Court, Counsel

replied, noting that: (1) other than a misdemeanor offense

five years prior, Bah had no criminal record beyond traffic

violations; (2) while Bah fired his weapon, he only did

so once, sparing the remaining individuals at the bank;

(3) Bah did not resist arrest when he was ultimately

apprehended; (4) “a root to Mr. Bah’s conduct is that . . . it

strongly appears that Mr. Bah suffers from some type

of psychological disorder,” indeed, “the PSR clearly

reflects that . . . Mr. Bah was committed into a mental

institution back in North Carolina”; (5) Dr. Gonzalez “did

not find any evidence of schizophrenia,” but Bah’s conduct

during his legal proceedings was erratic and “consistent

of somebody” with a disorder—hiring and firing his

attorneys and waffling on whether to represent himself

pro se multiple times; and (6) that Counsel spoke with Bah

“quite a bit . . . and there’s . . . something wrong.” CR Dkt.

48a

Appendix C

No. 80 at 17-21. Counsel then asked the Court to consider

sixty-three months’ imprisonment on Count One and 180

months’ imprisonment on Count Two, for a total of 243

months’ imprisonment, and stated that he believed that

sentence “serves to punish Mr. Bah for what he’s done but

also takes into consideration the mitigating factors . . . that

I’m hoping the court will . . . consider with respect to what

happened that day and then the conditions that . . . Mr. Bah

suffers from.” Id. at 20-21. The Court then varied upward

past Counsel’s and the Government’s recommendations

and sentenced Bah to consecutive terms of twenty-five

years’ and life imprisonment. Dkt. No. 3 at 135-36.

The Court further finds Bah has not overcome the

presumption that Counsel’s conduct might have been

sound strategy. Strickland, 466 U.S. at 689. For one thing,

Bah does not address that possibility. See Dkt. No. 3 at

50-52. Rather, Bah contends that Counsel “inexplicably”

recommended a sentence of 243 months’ imprisonment

in violation of the ABA’s Standards for Criminal Justice:

Prosecution and Defense Function, and that prejudice

followed. Id. at 50, 56; see ABA, Criminal Justice

Standards for the Defense Function, § 4-1.2(b), (d) (4th

ed. 2017) (concerning counsel’s duties to “render effective,

high-quality legal representation with integrity” and to

“act zealously within the bounds of the law and standards

on behalf of their clients”). Neither does Bah supply the

Court with relevant authority holding that recommending

a sentence above the Guidelines range but well below the

Government’s recommended sentence represents per se

deficient performance. Instead, Counsel very well might

have been confident that the Court would vary significantly

49a

Appendix C

from the Guidelines range, particularly if he requested

a within-Guidelines sentence, given the grim details of

the case. See Bah, 2023 U.S. App. LEXIS 4682, 2023 WL

2239021, at *4. Stated otherwise, as the Government does,

Counsel could have been “keenly aware that a significant

variance or departure was highly likely, and seemed to

be attempting to account for that while undercutting the

Government’s recommendation by more than 25 years.”

Dkt. No. 16 at 54.

In the end, even assuming without finding that

Counsel provided deficient performance, Bah cannot prove

prejudice because the Court did not sentence Bah to a

within-Guidelines range, 243 months’ imprisonment as

recommended by Counsel, or 600 months’ imprisonment

as per the Government’s request, but instead life plus

twenty-five years’ imprisonment. Dkt. No. 3 at 135-36.

There is no indication in the record that Bah’s sentence

would have been shorter had Counsel requested a sentence

within the Guidelines range.

Bah has failed to show that Counsel provided

ineffective assistance. Thus, the Government’s summary

judgment on this claim should be granted.

(v) Fa i lu r e t o d i s put e t he G o ve r n me nt’s

“mischaracterization of Mr. Bah’s only prior

conviction”

The PSR asserts that Bah was once convicted for

a crime. Dkt. No. 3 at 52-53; see Dkt. No. 4 at 15. The

misdemeanor in question is a 2016 arrest and conviction

50a

Appendix C

in North Carolina for assault of a government employee,

resulting in a sixty-day jail sentence, which, according to

the PSR, the North Carolina state court suspended and

then placed Bah on a term of twelve months’ probation.

Dkt. No. 4 at 15. By his final sub-claim, Bah argues

that Counsel was ineffective for failing to object at the

sentencing hearing to the Government’s claim that the

same conviction was for a crime “of violence,” which Bah

asserts contributed to the Court’s “upward departure.”

Dkt. No. 3 at 54.

Among other things, the Government argues that

Bah’s “attempt[] to characterize the Government’s brief

comment as critical to the argument for an upward

variance . . . is not supported by the record.” Dkt. No. 16

at 58. “The focus of the Government’s argument for an

upward departure or variance was the egregious nature

and circumstances of the offense, particularly injuries and

impact on the victims.” Id. The Government highlights

that the alleged improper comment “was a single sentence

in the ten pages of [its] argument for an upward departure

or variance.” Id.

The parties amply assess whether Bah’s assault

conviction was a crime of violence under North Carolina

law. Dkt. Nos. 3 at 52-55, 16 at 56-59. But the Court

need not analyze North Carolina law here because, even

assuming without finding that Counsel’s performance

was deficient by failing to object to the PSR and at the

sentencing hearing regarding the Government’s mention

of Bah’s 2016 misdemeanor conviction as being one for a

“crime of violence,” Bah has not met his burden to prove

51a

Appendix C

that his sentence would be different but for the deficient

representation. See Strickland, 466 U.S. at 697 (“If it is

easier to dispose of an ineffectiveness claim on the ground

of lack of sufficient prejudice, which we expect will often

be so, that course should be followed.”). When it sentenced

Bah, the Court was “intimately familiar with the harrowing

facts of the case.” Bah, 2023 U.S. App. LEXIS 4682, 2023

WL 2239021, at *4. Those facts include “Bah’s admission

of guilt,” Bah’s decision not to allocute, details contained

in victim impact statements, and surveillance video of the

robbery. Id. The Government reiterated those details at

the September 22, 2021 sentencing hearing. CR Dkt. No.

80 at 5-17. There is nothing in the record supporting the

contention that the Government’s brief “crime of violence”

statement had any impact on the Court’s sentence. So

Bah has not established that counsel’s alleged deficient

performance prejudiced him, and his claim fails.

The undersigned recommends that the Court grant

the Government summary judgment on this claim.11

(3) Failure to Present All Formal Plea Agreements

Bah’s final ineffective assistance of counsel claim

concerns Counsel’s alleged failure to present all plea

offers to him. “[T]he Sixth Amendment right to effective

11. Bah concludes this section of his argument by asserting that

Counsel’s deficiencies, considered in the aggregate, prejudiced Bah.

Dkt. No. 3 at 56-59. But as noted, four of Counsel’s alleged failures

did not constitute deficient performance, and the one remaining of

Counsel’s actions, even assuming deficient performance, did not

prejudice Bah.

52a

Appendix C

assistance of counsel extends to plea negotiations.” Miller

v. Thaler, 714 F.3d 897, 902 (5th Cir. 2013) (citing Frye, 566

U.S. at 144). “[A]s a general rule, defense counsel has the

duty to communicate formal offers from the prosecution to

accept a plea on terms and conditions that may be favorable

to the accused.” Frye, 566 U.S. at 145. The Strickland

standard also applies to claims that counsel’s deficient

performance caused a plea offer to lapse or be rejected.

Id.; see also United States v. White, 715 F. App’x. 436, 437

(5th Cir. 2018) (per curiam). When counsel’s performance

is deficient by failing to communicate formal plea offers to

the defendant, to prove Strickland’s prejudice prong, the

defendant must demonstrate a reasonable probability that:

(1) he would have accepted the plea offer had

he been afforded effective assistance of counsel;

(2) the plea would have been entered without

the prosecution canceling the offer or the trial

court’s refusing to accept it; and (3) the end

result of the criminal process would have been

more favorable by reason of a plea to a lesser

charge or a sentence of less prison time.

King v. Davis, 898 F.3d 600, 605 (5th Cir. 2018).

Bah’s final claim stems from the following exchange

at his June 28, 2021 re-arraignment hearing:

THE COURT:

And, [Counsel], have all formal

plea offers by the government

been conveyed to your client?

53a

Appendix C

[Counsel]:

They have, Your Honor.

THE COURT:

All right.

[Counsel]:

And we, for the record, we’ve

rejected them.

THE COURT:

Thank you, sir.

Dkt. No. 3 at 82. Bah asserts that contrary to Counsel’s

statement, Counsel never informed Bah of any plea

agreements. Id. at 60, 440-41 (Bah’s “Unsworn Declaration

Under Penalty of Perjury”).

The Government responds that Bah’s claim “is

unsupported by the record and meritless.” Dkt. No. 16 at

36. Attached to its motion for summary judgment is an

affidavit by Counsel stating, among other things, that:

On March 31, 2021, [Counsel] went to the jail

to review plea papers and the initial plea deal

offered by the Government which was to plea

guilty to both counts and [Bah] would receive

acceptance points and a recommendation of low

end. At this point, Mr. Bah refused to enter a

plea deal.

On April 13, 2021, [Counsel] was able to

arrange with the prosecutor, a “show and tell”

for the purpose of trying to convince Mr. Bah

to plea guilty pursuant to a plea deal. Mr. Bah

was shown pictures of all the evidence . . . . Mr.

54a

Appendix C

Bah did not want to plea guilty and did not want

to entertain a plea deal and refused to sign the

plea papers.

Dkt. No. 16-1 at 3.

Given Bah’s and Counsel’s conflicting statements, the

Court held an evidentiary hearing on August 2, 2024, to

determine whether the Government extended any plea

offers to Bah and, if so, whether Counsel informed Bah

of the offers. Dkt. No. 46; see United States v. RivasLopez, 678 F.3d 353, 358 (5th Cir. 2012) (“A district court

must hold an evidentiary hearing ‘unless the motion and

the files and records of the case conclusively show that

the prisoner is entitled to no relief.’” (quoting 28 U.S.C.

§ 2255(b) (brackets omitted))); see also United States v.

Lopez, 825 F. App’x. 196, 199 (5th Cir. 2020) (holding that

dispute between defendant and counsel as to whether

counsel advised defendant that rejecting a plea offer

could lead to a much longer sentence at trial “is precisely

the sort of factual dispute that requires an evidentiary

hearing”); cf. United States v. Giacomel, 153 F.3d 257,

258 (5th Cir. 1998) (stating that a Magistrate Judge may

make credibility findings based on evidence presented at

an evidentiary hearing in a 28 U.S.C. § 2255 case).

Testifying at the evidentiary hearing were Bah,

Counsel, and David. A. Lindenmuth—the Assistant

United States Attorney who prosecuted Bah’s case. Dkt.

No. 46 at 2. Before testimony opened, the Government

offered, without objection, six exhibits. Id. at 5; Dkt.

Nos. 43-43-6. Among the exhibits were two “plea packet

55a

Appendix C

memo[s].” Dkt. Nos. 43-1 (“Government Exhibit 1”), 43-2

(“Government Exhibit 2”). The Court admitted all six

exhibits. Dkt. No. 46 at 5.

Bah’s habeas counsel called Bah to the stand. Id.

at 7. Bah testified that the Court appointed Counsel to

represent him in his criminal case, and Counsel met

with him to discuss his case. Id. at 7-8. When asked

whether Counsel presented any plea offers to him, Bah

responded, “No.” Id. at 8. When asked whether he would

have accepted a plea offer for a recommendation of the

low end of the Guidelines sentence range and acceptance

of responsibility points, Bah responded, “Yes.” Id.

On cross-examination by the Government, Bah agreed

that Counsel visited him in jail “on many occasions.”

Id. at 9. He confirmed that he had a “show-and-tell”

with Counsel and the Government where he saw the

evidence against him, but he denied that Counsel or the

Government “mentioned anything about a plea offer.”

Id. at 9-10. Later in Bah’s testimony—after he and the

Government discussed his waffling on whether to have

Counsel represent him at trial—the Government asked

Bah whether the first time he told Counsel that he was

willing to plead guilty was just before his June 28, 2021

re-arraignment hearing. Id. at 12. Bah responded: “No, I

told [Counsel] when he came to visit me at [the detention

center] the first time to discuss the plea offer. That was

before the first Arraignment Hearing.” Id. at 12-13.

According to Bah, at some unspecified date, he informed

Counsel that he would plead guilty, and Counsel asked

Bah “to sign a paper.” Id. at 13. The paper’s substance

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represented the “same open plea . . . that [Bah] ended up

signing later on.” Id.

Next, the Government called Counsel to the stand. Id.

at 14. Counsel testified that he met with Bah on March 31,

2021, to present Bah with a “set of plea papers” containing

a recommendation “that [Bah] would get acceptance for

responsibility and a recommendation of low end on both

counts of the Indictment.” Id. at 18. The Government

asked Counsel whether he was familiar with Government

Exhibit 1, the first plea agreement extended to Bah, and

whether it was the offer Counsel presented to Bah on

March 31, 2021. Id. at 18-19. To both questions, Counsel

answered affirmatively. Id. at 18-20. Counsel testified

that in response to the Government’s plea offer, Bah

“was very hesitant, declined to sign it, [and] said he did

not want to enter a plea.” Id. at 20. Thereafter, Counsel

and the Government set up a show and tell at the United

States Attorney’s Office in Brownsville at which “Bah

was shown the evidence that the Government had.” Id. at

20-21. Counsel did not recall whether any plea offers were

discussed at the show and tell; instead, he believed the

purpose of the show and tell was for Bah to “understand

that . . . he doesn’t want to go to trial because this is the

evidence the Government has.” Id. at 21-22.

The Government then asked Counsel if “at any

other point in time” he “discuss[ed] plea offers from the

Government” with Bah. Id. at 22. Counsel responded

affirmatively and began describing a series of events

following the show and tell on April 13, 2021, to around

June 25, 2021. Id. at 22. On April 20, 2021, Counsel met

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with Bah, and Bah informed Counsel that “he wanted to

fire [Counsel] at that point and go back to representing

himself.” Id. at 22-23. Counsel immediately moved for

a hearing on the matter, and the hearing transpired

the following day. Id. at 23. At the hearing, the Court

“authorized” Bah to proceed pro se, appointed Counsel

as standby counsel again, and set the trial date for June

28, 2021. Id. at 23. Counsel testified that shortly before

June 28, he spoke with Bah via telephone, at which point

“[Bah] said he did not want to go to trial, that he wanted

to plead guilty, and he wanted [Counsel] to represent

him to get him to the plea.” Id. at 24-25. According to

Counsel, that was the first time that Bah confirmed that

he desired to plead guilty. Id. at 25. Counsel “notified

Mr. Lindenmuth . . . of what transpired” and acquired “a

second set of plea papers.” Id. In exchange for Bah’s guilty

plea, waiver of certain appellate rights, and forfeiture of

firearms, those plea papers recommended only a two-point

sentence reduction for acceptance of responsibility. Id.

Counsel advised Bah not to accept that offer because Bah

was getting nothing in return for his waiver of appellate

rights; Bah declined to sign the offer—but he did sign

“the Factual Summary [Sheet]” describing the offer.

Id. Counsel confirmed that Government Exhibit 2 is the

relevant “Factual Summary [Sheet]” that he, Lindenmuth,

and Bah each signed. Id. at 26. Counsel testified that he

had asked Lindenmuth if Bah could plead to only one

count, but Lindenmuth informed him that “the offense

[wa]s too egregious” for him “to agree to dropping either

of the counts.” Id. at 27. The Government concluded its

direct examination of Counsel by asking whether his

statement at the June 28, 2021 sentencing hearing that

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he and Bah had rejected all formal plea offers meshes

with his testimony at the evidentiary hearing. Id. at 29.

Counsel responded:

Yes, sir. I had shown [Bah] the first set of plea

papers that had an offer of acceptance and a

low end, and he had rejected that. And then the

second offer, which was of the June 28, was just

two points and waive his appellate rights. And

I advised him that he did not want to waive his

appellate rights, so we rejected that offer, too.

Id.

Last to the witness stand was Lindenmuth. Id. at

35. He testified that he prosecuted Bah’s case, and that

he extended two plea agreements to Bah. Id. at 35-36.

He stated that he likely sent the first agreement to Bah

“close in time to [Bah’s] arrest.” Id. at 36. In response to

the Government’s questioning, Lindenmuth affirmed that

there came a time after he made the first plea offer that

he reconsidered it. Id. He testified that he rescinded the

first plea offer after recognizing that the low end of the

estimated Guidelines range for Bah’s crimes “was grossly

insufficient for the behavior that [he] had charged” Bah

with. Id. at 37-38. Thereafter, Lindenmuth “superseded”

the first offer with the Government’s second plea offer and

stated that he would not have then moved forward with

the first plea offer even if Bah agreed to it. Id. at 38-39.

Lindenmuth confirmed that Government Exhibits 1 and

2 represent the two plea offers he extended to Bah. Id.

at 38-39. The Government asked Lindenmuth whether

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he discussed a plea offer at the April 12, 2021 show and

tell. Id. at 40-41. Lindenmuth responded, “Absolutely,”

and claimed that in “every single show-and-tell” that he

has ever conducted, he addressed plea offers. Id. at 41.

On cross-examination, Lindenmuth admitted that he did

not recall when exactly he withdrew the first plea offer

or which plea offer was discussed at the show and tell.

Id. at 45-47.

This record demonstrates that Counsel did not render

ineffective assistance. See Frye, 566 U.S. at 145; King,

898 F.3d at 605. Both Counsel and Lindenmuth testified

in detail that the Government extended two plea offers

to Bah, and that Counsel informed Bah of the offers.

Dkt. No. 46 at 29, 35-36. The Court admitted without

objection Government Exhibits 1 and 2, which both

Counsel and Lindenmuth testified accurately represented

the two offers presented to Bah. Further, Bah testified

inconsistently. He originally asserted via affidavit and

later testified during the evidentiary hearing that nobody

ever presented him with a plea offer. During the hearing,

he further testified that Counsel “came to visit [him] . . .

to discuss the plea offer,” and that Counsel asked him to

“sign a paper” which had the “same open plea . . . that

[Bah] ended up signing later on.” Dkt. No. 46 at 12-13. In

other words, by Bah’s own admission (and, indeed, Bah’s

signature on the Factual Summary Sheet containing one

of the two plea offers), Counsel presented at least one plea

offer to him. Evidence elsewhere in the record supports

a finding that Bah was informed of the two plea offers

presented to Counsel—most notably the fact that Bah did

not object to Counsel’s statement at his June 28, 2021 re-

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arraignment hearing that all plea offers were presented

to and rejected by Bah. See generally Dkt. No. 3 at 82.

For these reasons, after considering all the evidence

in this case, the undersigned finds that both plea offers

were extended to and rejected by Bah. And because that

ends the inquiry,12 Bah’s claim should be dismissed.

V. Certificate of A ppealability

Rule 11 of the Rules Governing § 2255 Proceedings

states that a district court “must issue or deny a certificate

of appealability when it enters a final order adverse to the

applicant.” A certificate of appealability shall not issue

unless the movant makes “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This

requires a “showing that reasonable jurists could debate

whether (or, for that matter, agree that) the [motion] should

have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 529 U.S. 473, 484,

120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000) (cleaned up).

Where claims have been dismissed on the merits, the

movant “must demonstrate that reasonable jurists would

find the district court’s assessment of the constitutional

claims debatable or wrong.” Id. District courts may deny

12. Finding that Bah failed to prove the deficient performance

Strickland prong on this claim, the Court need not assess the

prejudice prong. See Strickland v. Washington, 466 U.S. 668, 694,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Amos v. Scott, 61 F.3d 333,

348 (5th Cir. 1995).

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certificates of appealability sua sponte, without requiring

further briefing or argument. Alexander v. Johnson, 211

F.3d 895, 898 (5th Cir. 2000) (per curiam).

A certificate of appealability should not issue in this

case because a reasonable jurist would not find the Court’s

assessment of Bah’s constitutional claims debatable or

wrong.

VI. Recommendation

For the foregoing reasons, it is recommended that

the Court: (1) GRANT the Government’s Motion for

Summary Judgment on Bah’s first and second claims; (2)

DISMISS all three of Bah’s claims; (3) DECLINE to issue

a certificate of appealability; and (4) DIRECT the Clerk

of Court to close this case.

VII. Notice to Parties

A party’s failure to file written objections to the

proposed findings, conclusions, and recommendation in

a magistrate judge’s report and recommendation within

fourteen days after being served with a copy shall bar that

party, except upon grounds of plain error, from attacking

on appeal the unobjected-to proposed factual findings and

legal conclusions accepted by the district court, provided

that the party has been served with notice that such

consequences will result from a failure to object. Douglass

v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996).

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SIGNED on this 26th day of August, 2024, at

Brownsville, Texas.

/s/ Ignacio Torteya, III

Ignacio Torteya, III

United States Magistrate Judge

63a

APPENDIX D —Appendix

ORDER D

OF THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT, FILED MAY 14, 2025

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 24-40672

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MUHAMED PATHE BAH,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:23-CV-166

UNPUBLISHED ORDER

Before Smith, Graves, and Engelhardt, Circuit Judges.

Per Curiam:

A member of this panel previously DENIED

Appellant’s motion for a certificate of appealability. The

panel has considered Appellant’s opposed motion for

reconsideration.

IT IS ORDERED that the motion is DENIED.

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.