Petition for Writ of Certiorari — Chimene Hamilton Onyeri, Petitioner v. United States

Supreme Court briefAug 18, 2025

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Case: 24-50483

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Date Filed: 05/23/2025

Appendix A

©niteii States: Court of Appeals

for tfje jfiftlj Circuit

United States Court of Appeals

Fifth Circuit

FILED

May 23, 2025

No. 24-50483

Lyle W. Cayce

Clerk

United States of America,

Plaintiff—Appellee,

versus

Chimene H Jmilton Onyeri,

Defendant—Appellant.

Application for Certificate of Appealability

the United States District Court

for the Western District of Texas

USDC No. l:22-CV-800

USDC No. 1:16-CR-241-1

UNPUBLISHED ORDER

Before Southwick, Willett, and Oldham, Circuit Judges.

Per Curiam:!

ChimenelHamilton Onyeri, federal prisoner # 79217-380, seeks a

certificate of appealability (COA) to appeal the district court’s denial of his

28 U.S.C. § 2255 motion, which challenged his multiple convictions related

to his conspiracy to violate the Racketeer Influenced and Corrupt

Organizations 7?:t (RICO), and the denial of his Federal Rule of Civil

Case: 24-504:83

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No. 24-50483

Procedure 59(e) motion. Onyeri argues that his trial attorneys rendered

ineffective assi stance by failing to (i) use Officer Derek Uresti’s police report

to impeach Uresti’s testimony during his suppression hearing; (ii) properly

1 i

prepare Onyeri to testify at trial; (iii) object to a violation of the Confrontation

Clause; and (y) move to dismiss the count charging a RICO conspiracy.

Additionally, he contends that his appellate counsel was ineffective for failing

to argue on appeal that Uresti testified falsely and that the prosecution

engaged in mis•conduct by knowingly using and failing to correct Uresti’s

allegedly false testimony and by violating Brady v. Maryland, 373 U.S. 83

(1963).

Although Onyeri also argues that his defense was hindered due to

financial conflicts of interest between his trial attorneys, he does not

adequately add: ress the district court’s denial of leave to amend his § 2255

motion to incluji le this claim, and thus he has abandoned any challenge to this

determination. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999);

Brinkmann v. E alias Cnty. Deputy SheriffAbner, 813 F.2d 744, 748 (5th Cir.

1987). We do not consider Onyeri’s separate argument, raised for the first

time in his COA motion, that his trial attorneys were ineffective for failing to

challenge allege inconsistencies between the trial testimony given by Uresti,

son Gullingsrud* Detective Derek Israel, and Rasul Scott, as

well as Uresti’si police report. See id.

To obtain a COA, Onyeri must show that “reasonable jurists would

find the district! court’s assessment of the constitutional claims debatable or

wrong,” Slack k McDaniel, 529 U.S. 473, 484 (2000), or that reasonable

jurists could cor elude that the district court’s denial of his Rule 59(e) motion

constituted an abuse of discretion, Hernandez v. Thaler, 630 F.3d 420, 428

(5th Cir. 2011).i See 28 U.S.C. § 2253(c)(2). He has not made the required

showings. Accordingly, his motion for a COA is DENIED.

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No. 24-50483

Because Onyeri fails to make the required showing for a COA, we do

not reach his c laim regarding an evidentiary hearing. See United States v.

Davis, 971 F.3c 524,534-35 (5th Cir. 2020).

Case l:16-cr-00241-DAE Document 407 Filed 04/16/24 Page 1 of 20

Appendix n

I UNITED STATES DISTRICT COURT

I WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

, Ii

CHIMENE HAMILTON ONYERI

VS<

NA-22-CV-00800-DAE-SH

No -16-CR-00241 -DAE-11

UNITED STATES OF AMERICA,

ORDER

Judge Hightower issued her Report and Recommendation on October

23, 2023. On February 2, 2024, this Court adopted Judge Hightower’s Report and

Recommendation and denied Onyeri’s Motion Under 28 U.S.C. § 2255 to Vacate,

Set Aside, or Correct Sentence by a Person in Federal Custody. (Dkt. # 399.)

At the tipe the Court adopted the Report on February 2, 2024, it had

not received Onyeri’s objection. On February 5, 2024, the Court received Onyeri’s

objection to Judge Hightower’s report. (Dkt. # 401.) Of note, Onyeri signed and

dated his objection oh November 28,2023. (Id.) Based on these events, on February

29, 2024, Onyeri filed a Motion to Reconsider this Court’s Adoption of Judge

Hightower’s report. (Dkt. # 404.) In the Motion to Reconsider, Onyeri incorporated

1 !■I|

his Objection to Judge Hightower’s Report. (Id.)

On March 11, 2024, the

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Government responded to Onyeri’s Motion for Reconsideration. (Dkt. # 405.) On

April 1, 2024, Onyer i filed a reply. (Dkt. # 406.)

The Court finds this matter suitable for disposition without a hearing.

After careful consideration, the Court—for the reasons that follow— DENIES

Onyeri’s Motion to Reconsider and ADOPTS Judge Hightower’s Report.

LEGAL STANDARD

Review of a Magistrate Judge’s Report and Recommendation

The Court must conduct a de novo review of any of the Magistrate

Judge’s conclusions to which a party has specifically objected. See 28 U.S.C.

§ 636(b)(1)(C) (“A judge of the court shall make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which

objection is made.”). The objections must specifically identify those findings or

recommendations that the party wishes to have the district court consider.

Thomas v. Am, 474 L ,S. 140, 151 (1985). A district court need not consider

“[fjrivolous, conclusiye, or general objections.” Battle v. U.S. Parole Comm’n,

834 F.2d 419, 421 (5th Cir. 1987). “Ajudge of the court may accept, reject, or

modify, in whole or in part, the findings or recommendations made by the

magistrate judge.” 28 U.S.C. § 636(b)(1)(C).

II.

Motion for Relief Pursuant to 28 U.S.C. § 2255

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Section 2255(a) permits a federal prisoner to file a motion “to vacate,

set aside or correct” his sentence “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.”

Challenging a conviction and sentence with a Section 2255 motion is

“fundamentally different from a direct appeal.” U.S, v. Samuels, 59 F.3d 526, 528

(5th Cir. 1995) (quoting U.S, v. Drobny, 955 F.2d 990, 994 (5th Cir. 1992)).

“Once the defendant’s chance to appeal has been waived or exhausted . . . [courts]

are entitled to presume he stands fairly and finally convicted.” U.S, v. Frady, 456

U.S. 152, 164 (1982). The “general rule” is that “claims not raised on direct appeal

may not be raised on collateral review unless the petitioner shows cause and

prejudice.” Massaro v. U.S., 538 U.S. 500, 504 (2003). Thus, relief under Section

2255 “is reserved for transgressions of constitutional rights and for a narrow range

of injuries that could not have been raised on direct appeal and would, if condoned,

result in a complete miscarriage ofjustice.” U.S, v. Acklen, 47 F.3d 739, 741 (5th

Cir. 1995).

In a Section 2255 motion, a petitioner has the burden of sustaining his

contentions by a preponderance of the evidence. U.S, v. Clay, 921 F.3d 550, 559

Case l:16-cr-00241-DAE Document 407 Filed 04/16/24 Page 4 of 20

(5th Cir. 2019). On collateral review, courts view the facts in the light most

favorable to the verdict. Drobny, 955 F.2d at 992.

III.

Sixth Amendment Right to Counsel

The Sixth Amendment to the United States Constitution guarantees a

criminal defendant the right to the effective assistance of counsel. Strickland v,

Washington, 466 U.S. 668, 686 (1984). To succeed on a claim of ineffective

assistance of counsel, the petitioner must show that (1) counsel’s performance was

deficient, and (2) the deficient performance prejudiced the defense. Id. at 687.

To establish deficient performance, the petitioner must show that

“counsel’s representation fell below an objective standard of reasonableness.” Id.

at 688. A court considering a claim of ineffective assistance must apply a “strong

presumption” that counsel’s representation was within the “wide range” of

reasonable professional assistance. Id. at 689. The petitioner’s burden is to show

“that counsel made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687.

As for prejudice, a challenger must show “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. at 694. It is not enough “to show that

the errors had some conceivable effect on the outcome of the proceeding.” Id. at

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693. Counsel’s errors must be “so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable.” Id. at 687.

Surmounting Strickland’s high bar is never an easy task.” Harrington

v. Richter, 562 U.S. 86, 105 (2011). Judicial scrutiny of counsel’s performance

“must be highly deferential.” Strickland, 466 U.S. at 689.

A fair assessment of attorney performance requires that every effort

be made to eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel’s challenged conduct, and to evaluate the

conduct from counsel’s perspective at the time. Because of the

difficulties inherent in making the evaluation, a court must indulge a

strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the

challenged action “might be considered sound trial strategy.”

Id. (citation omitted).

DISCUSSION

Motion to Reconsider

“A district court enjoys considerable discretion in granting or denying

a motion under Rule 59(e) [of the Federal Rules of Civil Procedure].” Clancy v.

Emp, Health Ins. Co., 101 F. Supp. 2d 463, 464 (E.D. La. 2000)'

1 While the Federal Rules of Civil Procedure do not formally recognize the existence

of motions for reconsideration, courts customarily consider such motions under Rule

60(b) or 59(e).” Adams v. United Ass’n of Journeymen and Apprentices of the

Plumbing and Pipefitting Indus., 495 F. Supp. 3d 392, 395 (E.D. La. 2020) (cleaned

up).

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“In exercising this discretion, four factors are typically considered: (1)

whether the judgment was based upon a manifest error of fact or law; (2) whether

the movant presents newly discovered or previously unavailable evidence; (3)

whether amendment is necessary to prevent a manifest injustice; and (4) whether

an intervening change in controlling law has occurred.” Grant v. Tex. Attorney

General, 2022 WL 17732705, at *1 (W.D. Tex. Sept. 9, 2022) (cleaned up). In

doing so, a court “must attempt to strike the proper balance between two

competing imperatives: (1) finality, and (2) the need to render just decisions on the

basis of all the facts.” See id. (cleaned up).

Through letters, Onyeri has notified the Court of issues with the

prison mail system. (Dkt. # 403.) Onyeri wrote to the Court that the prison had

been on lock down and he has had trouble filing documents with the Court. (Id.)

Given Onyeri’s circumstances, the Court will consider each of Onyeri’s objections

and review Judge Hightower’s Report de novo.

II.

Uresti’s Police Report

Onyeri objects to Judge Hightower’s analysis of Houston Police

Officer Derek Uresti’s official police report (“Police Report”). (Dkt. # 381-1.)

Onyeri claims that Uresti never had probable cause to stop the silver Dodge

Charger. Onyeri asserts that Uresti was never briefed about the Silver Dodger

Charger prior to the arrest. (Dkt. #401 at 3.) Onyeri argues that, contrary to

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Uresti’s testimony, the officer was never told to be on the lookout for the Silver

Dodge charger.

Upon review of the record and Onyeri’s arguments, the Court adopts

Judge Hightower’s analysis of the Police Report. Onyeri’s objection does not offer

any novel, persuasive justification to alter Judge Hightower’s recommendation.

As Judge Hightower wrote, Onyeri misrepresents Uresti’s Police

Report. The Police Report clearly states that Uresti was briefed by officers

beforehand. In the police report, Uresti notes that he was advised by U.S.

Marshals that the suspect was inside the vehicle. (Dkt. #381-1 at 78). This

vehicle was seen driving towards Onyeri’s father’s house and made an illegal turn.

While Uresti’s testimony at the suppression hearing was more specific, it was

entirely consistent with the Police Report. (Dkt. #381-1 at 78.)

Uresti’s Police Report is also consistent with the testimony of other

witnesses who testified before the District Court to the “Silver Charger with black

rims.” For instance, Deputy U.S. Marshal Jason Gullingsrud testified that after he

stopped at 12383 Wellington Park Drive, he “saw the vehicle . . . that Onyeri was

supposed to be in” - the “Silver Charger, black rims.” (Suppression Hearing

Transcript, Dkt. 190 at 76:17-77:17.) Based on all the evidence, the District Court

found that Uresti had probable cause to initiate the traffic stop.

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To prove prejudice, Onyeri must show that “there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694. The Court agrees with

Judge Hightower that Onyeri does not show how use of the Police Report would

have changed the District Court’s ruling. “Counsel cannot be deficient for failing

to press a frivolous point.” Sones v. Hargett, 61 F.3d 410, 415 n.5 (5th Cir. 1995).

Because a failure to make a frivolous argument “does not cause counsel’s

performance to fall below an objective level of reasonableness,” the Court agrees

with Judge Hightower that Onyeri has not established that his attorneys were

deficient. Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998).

III.

Confrontation Clause

Onyeri objects to how the Report characterized the testimony of U.S.

Marshal Gullingsrud. Gullingsrud testified that “a task force member” had seen

the vehicle. Onyeri believes that the Confrontation Clause was violated because

the unnamed Task Force member “never testified.” (Dkt. # 375 at 31.)

Judge Hightower noted, “testifying officers may provide context for

their investigation or explain ‘background’” facts. Such out-of-court statements

are not offered for the truth of the matter asserted therein, but instead for another

purpose: to explain the officer’s actions.” U.S, v. Kizzee, 877 F.3d 650, 659 (5th

Cir. 2017).

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Onyeri argues that Gullingsrud’s testimony was not explaining

background facts. Rather, Onyeri argues that he was providing accusatory

testimony.

The Court disagrees with Onyeri. Officers may testify on a tip they

received for “the limited purpose of explaining why they were at a particular

location” because such information is “simply background information showing

the police officers did not act without reason.” U.S, v. Vitale, 596 F.2d 688, 689

(5th Cir. 1979).

The Court agrees with Judge Hightower that Gullingsrud’s testimony

was not hearsay because it was used to explain why officers were looking for a

silver Dodge Charger with black rims. Therefore, the Confrontation Clause was

not violated.

IV.

Appellate Counsel

Onyeri argues that his appellate counsel, Edmond N. O’Suji, rendered

ineffective assistance when he failed to argue on appeal that Uresti’s testimony at

the suppression hearing contradicted his statements in his Police Report.

Onyeri also disputes Judge Hightower’s finding that O’Suji raised the

inconsistent Police Report argument in his opening appellate brief. Judge

Hightower noted that in “Issue Two,” O’Suji argued that Onyeri’s Fourth

Amendment rights were violated because the traffic stop was initiated without

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probable cause or reasonable suspicion. (No. 18-50869, Dkt. # 38 at 20.) Onyeri

asserts that Issue Two does not specifically address the Police Report in question.

Therefore, the Fifth Circuit issued a decision based on an incomplete factual

record.

The Court again disagrees with Onyeri because he has failed to

distinguish between counsel being unsuccessful and being deficient. Onyeri’s

counsel briefed the Fifth Circuit on whether there was probable cause or

reasonable suspicion. These arguments were ultimately unsuccessful. The Fifth

Circuit specifically rejected Onyeri’s argument that Uresti’s testimony was not

credible:

Onyeri disputes the district court’s finding that Officer Uresti’s

testimony was credible. The crux of his argument centers on Officer

Uresti’s responses that he didn’t remember certain details of the traffic

stop. Onyeri argues that Officer Uresti’s failure to recall aspects of the

stop undermines the district court's credibility finding, and therefore,

any probable cause.

Onyeri’s contentions are misleading. Officer Uresti also answered,

with certainty, many other questions about the traffic stop. For

example, he testified that traffic was permitted to flow during the

traffic stop and that the road was not obstructed. He also stated that

his line of sight to the silver Charger was not obstructed in any way

and that he had no doubt that he saw the Charger turn into the number

one lane. These details are crucial to the determination of whether to

stop the Charger, and whether the officers had probable cause. In

contrast, many of the aspects of the stop that Officer Uresti could not

remember were unimportant to the propriety of initiating the traffic

stop.

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It is eminently plausible that the traffic stop occurred just as Officer

Uresti explained; nothing in the record suggests otherwise. And the

district court twice stated for our review that it found Officer Uresti

credible. Furthermore, “the clearly erroneous standard is particularly

strong because the judge had the opportunity to observe the demeanor

of the witnesses” at the suppression hearing and at trial. We cannot

identify any clear errors in the district court’s factual findings.

Accordingly, we conclude that the district court correctly denied

Onyeri’s motion to suppress.

United States v. Onyeri, 996 F.3d 274, 279 (5th Cir. 2021).

Onyeri’s lawyer, while unsuccessful, did not render ineffective

assistance. Onyeri does not show that “counsel made errors so serious that counsel

was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Strickland, 466 U.S. at 687.

Onyeri’s Testimony

Onyeri claims he was rendered ineffective assistance of counsel when

his attorneys failed to prepare him to testify at trial. Onyeri claims his attorneys

forced him to testify.

Judge Hightower noted this claim is conclusory because Onyeri does

not explain how the preparation “would have changed what he said, and how he

said it, such that the results of the proceedings would have been different.” PerezSolis v. U.S., No. CR L-l 1-799-2, 2015 WL 12645531, at *6 (S.D. Tex. July 13,

2015).

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Moreover, as Judge Hightower noted, the evidence contradicts

Onyeri’s allegation that defense counsel forced him to testify against his will. In a

sworn declaration, Trial Counsel stated that “it was against our advice” for Onyeri

to testify at trial because counsel feared his testimony would alienate the jury.

(Dkt. # 380-4 H 15.) Trial Counsel further stated that, “from the beginning, the

defendant made it clear to us that he was going to testify regardless of counsel’s

advice.” (Id.

14.)

Onyeri objects by bringing in a new argument that counsel wanted to

continue to bill the case under the Criminal Justice Act, thereby creating a

conflicting financial interest. (Dkt. #401 at 9.) Onyeri asserts that his hired

counsel, Martinez, pursued a different defense strategy than the court appointed

attorney. (Dkt. # 401 at 11.) This lack of coordination led to Onyeri’s inadequate

preparation for his trial testimony. Onyeri believes that the result of the trial would

have been different because there would not have been incriminating testimony

without this ineffective assistance of counsel. (Id.)

Onyeri also argues that Judge Hightower failed to address his affidavit

on not being prepared to testify. Onyeri asserts the combination of being

unprepared, surprised, and unsupported could have the effect of appearing less

credible. He believes this led to an unfair trial and could have had a substantial

effect on the outcome of the case.

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As discussed below, the Court will not entertain Onyeri’s new

argument regarding the conflicting financial interests of his counsel. If a movant

fails to include legal grounds or facts in his 2255 motion, a court is not required to

consider them in a reply. See United States v. Cervantes, 132 F.3d 1106, 111 0-11

(5th Cir. 1998).

Even upon review of Onyeri’s affidavit supporting his belief that he

was unprepared to testify, the Court still concludes that Onyeri has failed to

explain how the preparation “would have changed what he said, and how he said it,

such that the results of the proceedings would have been different.” Perez-Solis v.

U.S., No. CRL-11-799-2, 2015 WL 12645531, at *6 (S.D. Tex. July 13,2015).

As Onyeri notes, this analysis can involve a “venture into speculative territory.”

(Dkt. #401 at 10.) However, Onyeri has not pointed to any remarks he testified to

or remarks he wishes he made that would have changed the result of the

proceedings. Ultimately, “the jury’s decision not to believe Defendant was out of

the hands of defense counsel.” Perez-Solis, 2015 WL 12645531, at *6.

Therefore, the Court agrees with Judge Hightower that this claim of ineffective

assistance of counsel also fails.

VI.

RICO Claim

Onyeri argues that defense counsel was ineffective for failing to move

to dismiss Count One because “[a]ttempted capital murder, as charged in the

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indictment is not listed [in the] definition of what constitutes a RICO activity”

under 18 U.S.C. § 1961(1). (Dkt. # 375 at 34.)

As Judge Hightower noted, several circuits have found that attempted

murder is a predicate offense under RICO. See U.S, v. Nichols, 76 F.4th 1046,

1055 (8th Cir. 2023) (stating that “[a]ttempted murder is an underlying

“racketeering activity” under § 1961(1)); U.S, v. Farmer, 38 F.4th 591, 602 (7th

Cir. 2022) (‘“Racketeering activity’ includes murder, attempted murder, arson,

robbery, extortion, and drug trafficking.”), cert, denied, 143 S. Ct. 841 (2023); U.S,

v. Pungitore, 910 F.2d 1084, 1134 (3d Cir. 1990) (rejecting defendant’s claim that

indictment was fatally defective because § 1961 (1 )(A) “does not specifically

mention attempted murder”); see also U.S, v. Johnson, 825 F. App’x 156, 166 (5th

Cir. 2020) (per curiam) (stating that “attempted murder” is a predicate offense

under RICO).

On Onyeri’s direct appeal, the Fifth Circuit held that there was

sufficient evidence to support Onyeri’s RICO conspiracy conviction based on

evidence presented at trial showing that Onyeri attempted to murder Judge

Kocurek. Onyeri, 996 F.3d at 280-81.

Onyeri argues that none of the cases cited by the Report reflect Fifth

Circuit precedent. The issue according to Onyeri is that counsel was ineffective

when they failed to file and preserve a motion to dismiss Count One of the

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superseding indictment under Rule 12(b)(3) when it charged attempted murder as a

“pattern of racketeering activity,” which is not enumerated in the offense. Onyeri

argues that, contrary to the Report, preserving a position on a claim that has not

been addressed by the Fifth Circuit cannot be considered a meritless claim.

This Court disagrees. Again, Onyeri confuses ineffective assistance

of counsel with being unsuccessful in litigation. Just because counsel did not

engage in the take the best course of action does not render his or her performance

deficient. In this case, the Fifth Circuit cited a plethora of caselaw from other

circuits that have included attempted murder a predicate offense under RICO.

Counsel is not deficient for failing to preserve his claim for appeal given the

precedent issued by numerous circuits throughout the federal judiciary. Moreover,

the Court does not find that Onyeri was prejudiced by not preserving the claim. It

is clear that “[a]n attorney’s failure to raise a meritless argument. . . cannot form

the basis of a successful ineffective assistance of counsel claim because the result

of proceeding would not have been different had the attorney raised the issue,”

United States v, Kimler, 167 F.3d 889, 893 (5th Cir. 1999), and that “[c]ounsel

cannot be deemed ineffective for failing to file a frivolous motion.” McGowan v.

United States, 2013 WL 1285499, at *2 (N.D. Tex. Mar. 29, 2013).

VII. Onyeri’s claim that Appellate Counsel did not argue that Uresti

testified falsely.

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Onyeri argues that the Report did not address whether appellate

counsel failed to raise on appeal that Uresti gave false testimony during trial.

Onyeri asserts that appellate counsel rendered ineffective assistance by failing to

raise this argument.

The Court disagrees with Onyeri. Appellate counsel contended before

the Court of Appeals that “Uresti’s testimony [wa]s not credible, rendering the

traffic stop invalid.” See Gov. Ex. 6 at 11 (Onyeri’s appellate brief). Counsel’s

effort to do so on appeal was entirely reasonable. Nevertheless, Onyeri has

proffered only conclusory allegations of prejudice regarding the performance of

appellate counsel. This assertion is insufficient to show a reasonable probability

that the result of Onyeri’s direct appeal would have been different had counsel

further challenged Uresti’s credibility before the Court of Appeals. See, e.g,,

Escamilla v. Stephens, 749 F.3d 380, 388 (5th Cir. 2014).

VIII. Prosecutorial Misconduct

Onyeri argues that the government committed prosecutorial

misconduct and violated his due process rights by failing to correct Uresti’s alleged

false testimony during the suppression hearing and at trial. In the alternative,

Onyeri argues that the government withheld Uresti’s Police Report containing

impeachment evidence until late in the proceedings, in violation of Brady v.

Maryland, 373 U.S. 83, 87 (1963).

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Onyeri asserts that the government knew Uresti’s testimony was false.

Onyeri argues Judge Hightower did not review the Police Report or Uresti’s

testimony in her Report.

The Court finds that Onyeri’s prosecutorial misconduct argument also

fails. Onyeri has only proffered conclusory allegations, which are insufficient to

show that the government knowingly offered false testimony—which it did not—

or that the allegedly false testimony was material. See, e.g., United States v.

Stanford, 824 F.3d 814, 839 (5th Cir. 2016).

Under Brady, the movant must show the evidence is material.

Suppressed evidence is material “if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have

been different.” U.S, v. Bagley, 473 U.S. 667, 685 (1985).

Judge Hightower concluded that Onyeri failed to meet any of the

Brady factors, and this Court agrees. As stated earlier, the Court does not find the

Police Report to be exculpatory or impeaching. Moreover, the Court finds no fault

or error in how Uresti’s Police Report was handled.

IX.

Request for Hearing

Onyeri argues that the allegations warrant an evidentiary hearing.

Onyeri claims the allegations relate to events not included in present “files and

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records.” Onyeri asserts that the record and affidavits in the Section 2255 Motion

conflict with each other.

The Court denies Onyeri’s request to hold an evidentiary hearing on

his Section 2255 Motion. “A motion brought under 28 U.S.C. § 2255 can be

denied without a hearing only if the motion, files, and records of the case

conclusively show that the prisoner is entitled to no relief.” U.S, v. Bartholomew,

974 F.2d 39, 41 (5th Cir. 1992); see also 28 U.S.C. § 2255(b). Onyeri is not

entitled to a hearing because the motion, files, and record conclusively show that

he is not entitled to relief.

Denying Leave to Amend

In Onyeri’s Objection to Judge Hightower’s Report and Reply to the

Government’s Opposition to vacate his conviction and sentence, he raises multiple

new arguments. (Dkt. #391.) (“Def. Reply.)

First, Onyeri claims his counsel failed to return the case file and

neglected to secure critical discovery materials. (See Def. Reply at 2-5.)

Second, Onyeri claims his right to an attorney of choice came into

question because one of his trial attorneys “requested] Criminal Justice Act funds

from the court and from Onyeri’s family as well.” (See id. at 12 n.3.) Onyeri

asserts his counsel had conflicting strategies, creating confusion. Moreover, he

Case l:16-cr-00241-DAE Document 407 Filed 04/16/24 Page 19 of 20

argues that “the undisclosed involvement of a court-appointed attorney raises

concerns about conflicts of interest.” (See id. at 15-17.)

Third, Onyeri claims his appellate counsel engaged in purportedly

“[deceptive [c]onduct,” “submitted an incomplete appeal,” “turned in an appeal

without informing Onyeri,” and “failed to return Onyeri’s case file.” (See id. at 4

(emphasis omitted)).

The Rules Governing Section 2255 Proceedings require that a motion

to vacate must, among other things, “specify all the grounds for relief available to

the moving party,” as well as “the facts supporting each ground.” See Rules

Governing Section 2255 Proceedings for the United States District Courts 2(b)(1),

2(b)(2).

If a movant fails to include legal grounds or facts in his Section 2255

motion, a court is not required to consider them in a reply. See United States v.

Cervantes, 132 F.3d 1106, 1110-11 (5th Cir. 1998).

There are three ways a movant may amend his 2255 motion. First,

“[a] party may amend its pleading once . . . within 21 days after serving it.” See

Fed. R. Civ. P. 15(a)(1)(A). Second, “if the pleading is one to which a responsive

pleading is required,” “[a] party may amend its pleading once as a matter of course

within ... 21 days after service of a responsive pleading.” Fed. R. Civ. P.

Case l:16-cr-00241-DAE Document 407 Filed 04/16/24 Page 20 of 20

15(a)(1)(B). Third, “[i]n all other cases, a party may amend its pleading only with

the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2).

Onyeri does not fit into any of the three exceptions and therefore his

new arguments will not be considered by the Court. Further, the record does not

support any of his new “arguments.”

CONCLUSION

For the foregoing reasons, the Court, upon review of Onyeri's

objections, ADOPTS Judge Hightower’s Report and DENIES Onyeri’s Motion

Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in

Federal Custody. (Dkt. # 368.) The Court DENIES a certificate of appealability

in this case.

IT IS SO ORDERED.

DATED: Austin, Texas, April 16, 2024.

David Alan Ezra

Senior U.S. District Judge

Case l:16-cr-00241-DAE Document 399 Filed 02/02/24 Page 1 of 21

Appendix C

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

CHIMENE HAMILTON ONYERI

vs.

UNITED STATES OF AMERICA,

No. A-22-CV-00800-DAE-SH

A-16-CR-00241-DAE-11

ORDER ADOPTING U.S. MAGISTRATE JUDGE HIGHTOWER’S

REPORT AND RECOMMENDATION

On October 23, 2023, Judge Hightower issued a Report and

Recommendation (the “Report”) recommending that this Court deny Plaintiff

Chimene Hamilton Onyeri’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or

Correct his Sentence and deny his request for an evidentiary hearing. (Dkt. # 368.)

Onyeri filed no objection. .

The Court finds this matter suitable for disposition without a hearing.

After careful consideration, the Court—for the reasons that follow— ADOPTS

Judge Hightower’s Report.

Case l:16-cr-00241-DAE Document 399 Filed 02/02/24 Page 2 of 21

BACKGROUND

Facts

Judge Hightower thoroughly and accurately recounted the facts in her

Report. This Court reproduces them below in full:

Petitioner Chimene Hamilton Onyeri shot Texas State Judge Julie

Kocurek four times in the face and upper torso in an attempt to avoid prison. Onyeri

was convicted in this Court on seventeen counts of RICO violations, including the

predicate offense of attempted capital murder, and sentenced to life imprisonment.

The Fifth Circuit affirmed his conviction and sentence in a published opinion, U.S,

v. Onyeri, 996 F.3d 274 (5th Cir. 2021). Onyeri now seeks to vacate his conviction

and sentence under 28 U.S.C. § 2255.

Onyeri’s criminal activities “involved a multitude of misdeeds that

spanned almost half a decade.” Onyeri, 996 F.3d at 276. Relevant here, from

January 2012 through November 2015, Onyeri led his co-conspirators “in

conducting the affairs of an enterprise through a pattern of racketeering activity

consisting of multiple acts of mail fraud, wire fraud, bribery of a public official,

identity theft, access device fraud, money laundering, conspiracy to commit money

laundering, and murder.” (Dkt. #231 at 22.) After serving three years in prison, and

while on bond for other state felony charges including violent crimes, Onyeri was

arrested and charged in Texas state court for some of his fraudulent activity. Onyeri,

Case l:16-cr-00241-DAE Document 399 Filed 02/02/24 Page 3 of 21

996 F.3d at 277. He remained in state custody for one year and attempted to continue

to lead his criminal enterprise from prison, hl

The Honorable Julie H. Kocurek, a Texas state judge for the 390th

District Court in Austin, was assigned to Onyeri’s case. Id. Onyeri pled guilty to

the charges stemming from his 2012 arrest, and Judge Kocurek placed him on three

years’ deferred adjudication probation, under which he would not face conviction

for those charges if he successfully completed probation. Id. But after two-and-a-

half years, following allegations that Onyeri had engaged in fraudulent use of debit

cards in Calcasieu Parish, Louisiana, the Government moved to proceed with an

adjudication of guilt. Id. Judge Kocurek later testified that “she insisted the District

Attorney’s Office move quickly with Onyeri’s case,” reset the case for a hearing, and

“suggested Onyeri may face six to seven years in prison.” Id.

On Friday, November 6, 2015, two days before the scheduled hearing,

Onyeri placed a trash bag in front of Judge Kocurek’s driveway. As the family

returned home from a high school football game, Judge Kocurek’s 15-year-old son,

Will Kocurek, was driving her SUV, with Judge Kocurek in the passenger seat and

her nephew and sister in the back seat. (Dkt. # 188 at 1.) As Will pulled into the

driveway, he noticed the bag and got out of the SUV to move it. (Id.) Onyeri then

walked toward the driver’s side of the vehicle and fired four to five shots through

the driver’s side window at Judge Kocurek, striking her in the face and arm. (Id. at

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1-2.) At trial, Judge Kocurek testified that when Onyeri fired his gun, she was hit

with “a wall of metal” and thought at that moment that she was “going to die” in

front of her son, sister, and nephew. (Trial Transcript, Dkt. # 332 at 41:7-13.) Judge

Kocurek was seriously injured in the shooting, suffering multiple gunshot wounds.

Onyeri, 996 F.3d at 277.

Onyeri fled in a getaway car. A co-conspirator testified that, when he

got in the car, he said: “I got that bitch. I got that bitch.” (Trial Transcript, Dkt. #

330 at 221:20-21.) Onyeri testified that he was “happy” he shot Judge Kocurek and

“scared the living hell” out of her son because “I had gotten my payback.” (Id., Dkt.

# 334 at 5:17-6:7.)

On November 9, 2015, law enforcement received a tip that Onyeri was

responsible for the shooting. Investigators learned that there was an active warrant

for Onyeri’s arrest for felony larceny in Louisiana. (Id.) The Houston Police

Department (“HPD”), along with investigators of the Gulf Coast Violent Offender

and Fugitive Task Force, began a search for Onyeri in the Houston area, where he

was known to stay. (Id.) During the investigation, officers learned that Onyeri was

traveling in or associated with a silver Dodge Charger with black wheel rims. (Id.)

As officers interviewed witnesses at Onyeri’s father’s house, HPD Officer Derek

Uresti and Deputy U.S. Marshal Jason Gullingsrud spotted the Charger heading

toward the house and began to follow it. (Id.) Uresti testified that the officers

Case l:16-cr-00241-DAE Document 399 Filed 02/02/24 Page 5 of 21

followed the car through the neighborhood, ultimately initiating a traffic stop when

the Charger made an errant right turn. (Id.) Onyeri and several of his co-conspirators

were arrested. (Id.)

During the traffic stop, officers observed cell phones on the rear

floorboard of the driver’s side of the Charger, including a “smashed” Samsung

Galaxy cell phone later identified as Onyeri’s phone. (Dkt. # 188 at 3.) Officers had

the Charger taken to a storage area until a search warrant was obtained. (Id.) Along

with the warrant for the car, officers obtained state and federal search warrants for

the cell phones recovered from the car and a separate warrant for cell-tower data.

(Id.) Despite the damage to Onyeri’s phone, investigators were able to obtain

evidence showing that he was in Austin at the time of Judge Kocurek’s shooting, as

well as text messages and photos implicating him in the shooting and other crimes.

(Suppression Hearing Transcript, Dkt. # 190 at 38:5-41:23.)

II.

Procedural history

Onyeri and his co-conspirators were indicted in the Western District

of Texas. (Dkt. # 3.) A seventeen-count Superseding Indictment, returned on

December 20, 2016, charged Onyeri and his co-conspirators with conspiracy to

violate the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18

U.S.C. § 1962(d) (Count One). (Dkt. # 72 at 2.) The pattern of racketeering

activity consisted of “multiple acts” of mail fraud, bribery of a public official, wire

Case l:16-cr-00241-DAE Document 399 Filed 02/02/24 Page 6 of 21

fraud, fraud in connection with identification documents, authentication features

and information, access device fraud, conspiracy to commit money laundering,

money laundering, and an act “involving murder.” (Id. at 4.) Count One also

included a “Special Sentencing Allegation” that Onyeri and his co-conspirators

“did, with specific intent to commit the offense of the Capital Murder of Julie

Kocurek, attempt to intentionally and knowingly cause the death of Julie Kocurek

in retaliation for and on account of the service and status of Julie Kocurek as a

Judge of the District Court.” (Id. at 7-8.) The Superseding Indictment also

charged Onyeri with conspiracy to commit mail fraud, in violation of 18 U.S.C §§

1349 and 1341 (Count Two); aggravated identity theft, involution of 18 U.S.C. §

1028A(a)(l) (Counts 3, 5-9, and 11); conspiracy to commit wire fraud, in violation

of 18 U.S.C. §§ 1349 and 1343 (Counts 4 and 10); and six counts of tampering

with a witness (Counts 12-17). (Id. at 8-34.)

Onyeri pled not guilty to all charges. On January 10, 2018, he moved

to suppress the information obtained from his cell phone, arguing that the officers

did not have probable cause to initiate the traffic stop that led to the phone’s

seizure. (Dkt. # 154.) The District Court held a multiday evidentiary hearing on

the motion, during which the Court heard testimony from Onyeri; Reginald

Matthews, the driver of the vehicle; HPD Officer Uresti; and Deputy U.S. Marshal

Case l:16-cr-00241-DAE Document 399 Filed 02/02/24 Page 7 of 21

Gullingsrud. The District Court denied Onyeri’s Motion to Suppress, finding that

Uresti had probable cause to initiate the traffic stop. (Dkt. # 179; Dkt. # 188.)

Onyeri’s jury trial commenced March 26, 2018 and lasted 20 days.

(Dkt. # 207.) Onyeri was represented at trial by attorneys Victor Arana and Lenard

Martin Martinez. At trial, thousands of exhibits were introduced and many

witnesses testified, including Onyeri. On March 26, 2018, the jury returned a

unanimous verdict finding Onyeri guilty on all seventeen counts. (Dkt. # 236.)

Onyeri moved for a new trial, arguing that the District Court should

reconsider its decision to deny his Motion to Suppress; his conviction on Count

One should be reversed because RICO’s “pattern of racketeering activity” element

is unconstitutionally vague; the jury instructions on Count One were erroneous and

there was insufficient evidence to support a conviction; and the evidence could not

establish the required mental state for attempted Capital Murder or to establish that

the attempted Capital Murder was part of a pattern of racketeering activity. (Dkt. #

243.) The District Court denied the motion for new trial. (Dkt. # 257.) On

October 2, 2018, the District Court sentenced Onyeri to a term of life

imprisonment plus 24 months, a five-year term of supervised release, and

$178,374.41 in restitution. (Dkt. # 269.)

Onyeri filed a direct appeal, arguing that: (1) the District Court erred

by admitting evidence obtained from the traffic stop because it was not supported

Case l:16-cr-00241-DAE Document 399 Filed 02/02/24 Page 8 of 21

by probable cause or reasonable suspicion, claiming that Uresti’s testimony was

not credible; (2) there was insufficient evidence to support his RICO conspiracy

conviction on Count One; and (3) the District Court erred in ordering his monthly

annuity payments to be garnished. The Fifth Circuit affirmed his conviction and

sentence. Onyeri, 996 F.3d at 278-83. Onyeri did not file a writ of certiorari. He

now brings this Motion to Vacate under 28 U.S.C. § 2255, arguing that he was

denied effective assistance of counsel and that the government committed

prosecutorial misconduct.

LEGAL STANDARD

Review of a Magistrate Judge’s Report and Recommendation

The Court must conduct a de novo review of any of the Magistrate

Judge’s conclusions to which a party has specifically objected. See 28 U.S.C.

§ 636(b)(1)(C) (“A judge of the court shall make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which

objection is made.”). The objections must specifically identify those findings or

recommendations that the party wishes to have the district court consider.

Thomas v. Am, 474 U.S. 140, 151 (1985). A district court need not consider

“[f]rivolous, conclusive, or general objections.” Battle v. U.S. Parole Comm’n,

834 F.2d 419, 421 (5th Cir. 1987). “A judge of the court may accept, reject, or

Case l:16-cr-00241-DAE Document 399 Filed 02/02/24 Page 9 of 21

modify, in whole or in part, the findings or recommendations made by the

magistrate judge.” 28 U.S.C. § 636(b)(1)(C).

Findings to which no specific objections are made do not require de

novo review; the Court need only determine whether the Recommendation is

clearly erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221

(5th Cir. 1989).