Petition for Writ of Certiorari — Samuel Elliott, Petitioner v. United States

Supreme Court briefFeb 11, 2026

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IN TH

E SUPREME CO

URT OF THE UNITED STATES

MUELELLIOTT,

Movant-Appellant,

UNITED STATES OFAMERICA,

Respondent-Appellee.

ON PETITION FOR WRIT OF CERTIORARI

AF TER DIRECT APPEAL FROM

THE UNITED STATES DISTRICT COURT FOR

E DISTRICT OF NE

W ME

XICO,

HONORABLE MA

TTHEW L. GARCIA

SE NO

S.21-cv-226 MLG/GBW

& 14-cr-3822 MLG/GBW,

THE UN

ITED ST ATES CO

URT OF AP PEALS FOR

THE TENTH CIRCUIT,

.25-2018

TITIONER SA

MUELELLIOTT’S PETITION FOR

WRIT OF CERTIORARI

SCOTT M. DAVIDSON

UNSEL FOR PETITIONER SA

MUELELLIOTT

THE LAW OFFICE OF SC

OTT M. DAVIDSON, PH.D., ESQ.

1011 LOMAS BOULEVARD NW

ALBUQUERQUE, NM87102

05-255-9084

scott@justappeals.net

ESTION PRESENTED FOR RE

VIEW

Petitionersoughtreliefunder28U.S.C.§ 2255ongroundsofineffective

assistance arising from errors and omissions by counsel pertaining to both

custody and a restitution amount of $730,000.00. The courts below denied

the restitution-related claim on grounds that relief under § 2255 is not

available for ineffective assistance related to restitution. Would reasonable

jurists find the denial of Petitioner’s ineffective assistance claim on these

grounds debatable or wrong?

TABLE OF CO

NTENTS

QUESTION PRESENTED FOR REVIEW...............................................................2

BLE OF AUTHORITIES.....................................................................................4

OPINIONS BELOW................................................................................................6

JURISDICTION......................................................................................................7

DERAL CONSTITUTIONAL PROVISION IN

VOLVED........................................7

STATEMENT OF THE CA

SE..................................................................................7

REASONS FOR GR

ANTING THE WRIT..............................................................10

ARGUMENT.........................................................................................................10

CONCLUSION......................................................................................................16

CERTIFICATE OF SERVICE................................................................................17

DEX TO APPENDICES

Appendix A:

rder Denying Certificate of Appealability,United States of

America v. Samuel Elliott, No. 25-2018 (10thCir., November 13,

2025)

AppendixB:

Order Adopting Magistrate Judge’s Proposed Findings and

Recommended Disposition (D.N.M., July 11, 2024)

Appendix C:

Final Judgment (D.N.M., Dec. 18, 2024)

AppendixD:

Order Denying Certificate of Appealability (D.N.M., March 10,

2025)

TABLE OF AUTHORITIES

CASES FROM THE FE

DERAL CO

URTS

Bernickel v. United States,

113 F.3d 704 (7th Cir. 1997).............................................................11

Blaik v. United States,

161 F.3d 1341 (11th Cir. 1998).........................................................11

Erlandson v. Northglenn Mut. Ct.,

528 F.3d 785 (10th Cir. 2008)..........................................................10

Kaminski v. United States,

399 F.3d 84 (2nd Cir. 2003)..................................................11, 13, 15

Obado v. New Jersey,

328 F.3d 716 (3rd Cir. 2003).............................................................11

Smullen v. United States,

94 F.3d 20 (1st Cir. 1996).................................................................11

Strickland v. Washington,

466 U.S. 668 (1984)....................................................................10, 13

United States v. Bernard,

351 F.3d 360 (8th Cir. 2003).........................................................9-10

United States v. Mayhew,

995 F.3d 171 (4th Cir. 2021)............................................................12

United States v. Michaud,

901 F.2d 5 (1st Cir. 1990).................................................................13

United States v. Segler,

37 F.3d 1131 (5th Cir. 1994).............................................................11

United States v. Thiele,

314 F.3d 399 (9th Cir. 2002)............................................................10

United States v. Trimble,

12 F. Supp.3d 742 (E.D. Pa. 2014)...................................................11

DERAL ST

ATUTES AND COURT RULES

28 U.S.C. § 1254(l)……………………………………………………………...7

28 U.S.C. § 2255…………………………………………………………..passim

Supreme Court Rule 10(a).........................................................................10

Petitioner Samuel Elliott respectfully prays that a writ of certiorari

issuetoreviewtheorderoftheUnitedStatesCourtofAppealsfortheTenth

Circuit denying habeas relief under 28 U.S.C. § 2255.

OPINIONS BE

LOW

The Order Denying Certificate of Appealability of the United States

Court of Appeals for the Tenth Circuit is attached in Appendix A. The

Order Adopting Magistrate Judge’s Proposed Findings and Recommended

Disposition,filedbytheUnitedStatesDistrictCourtfortheDistrictofNew

Mexico is attached in Appendix B. TheDistrictCourt’sFinalJudgmentis

attached in Appendix C. TheDistrictCourt’sOrderDenyingCertificateof

Appealability is attached in Appendix D.

RISDICTION

The United States Court of Appeals for the Tenth Circuit issued its

orderdenyingcertificateofappealabilityanddenyingreliefunder28U.S.C.

§ 2255 on November 13, 2025. See Appendix A. A petition for writ of

certiorariistimelyiffiledonorbeforeFebruary11,2026. Thejurisdictionof

this Court is invoked under 28 U.S.C. § 1254(l).

FEDERAL CONSTITUTIONAL PROVISIONS INVOLVED

The relevant portion of the Sixth Amendment to the United States

Constitution provides that “[i]n all criminal prosecutions, the accused shall

enjoy the right to . . . have the Assistance of Counsel for his defence.”

ATEMENT OF THE CA

This petition for writ of certiorari followsadirectappealtotheUnited

StatesCourtofAppealsfortheTenthCircuitfromtheUnitedStatesDistrict

CourtfortheDistrictofNewMexico’sdenialofPetitioner’spetitionunder28

U.S.C. § 2255 challengingthevalidityofhisfederalconvictionandsentence,

and the district court’s order denying certificate of appealability.

Petitioner wasrepresentedbycourt-appointedcounsel. Hepledguilty

to threecountsofproducingchildpornographyandfourcountsofpossessing

child pornography.

The plea agreement required that any restitution

imposed on Petitioner be conditioned on two requirements: (1) that the

victims be identified, and (2) that they request restitution prior to sentencing.

At the sentencing hearing, Petitioner was sentenced to 170 years of

imprisonment, based on 360 months for each of the three productioncounts

and 240 months for each of the four possession counts; all counts were run

consecutively.

The district court entered a restitution award in the amount of

$730,000.00.

In spite of the fact that the terms of the plea agreement required the

victims tobeidentifiedandthattheyrequestrestitutionpriortosentencing,

Petitioner’s trial counsel madenoefforttoensurethatthisrequirementwas

met prior to the imposition of $730,000.00 in restitution at sentencing.

Without taking any steps to confirm that this requirement had been

met, counsel took the prosecutor at his word that victims had said they

wanted restitution. There is nothing in the record showing any claim of

restitution by any of the victims. Petitioner was never made aware of any

such claims of restitution, as required by the plea agreement.

Petitioner’strialcounselalsomadenoefforttoargueforareductionin

the amount of restitution.

The restitution award of $730,000.00wasimposedwithouttheexpress

requirements in the plea agreement having been met.

Petitionersoughtreliefunder§2255intheUnitedStatesDistrictCourt

for the District of New Mexico. At the evidentiary hearing, trial counsel

acknowledged that he did not discuss with Petitioner any plan to monitor

whether the required requests were madepriortosentencing. Trialcounsel

neverprovidedtoPetitioneranyconfirmationthattherequiredrequestshad

been made. Trial counsel testified that he assumed that the amount of

$730,000.00 was “based on a recommendation from probation.”

There was no evidence produced at sentencing that any such requests

weremade. Intheproceedingsunder§2255,neitherthegovernmentnorthe

district court produced or pointed to any portion of the record documenting

that any of the victims had requested restitution, in spite of the express

requirement in the plea agreement.

The District Court denied Petitioner’s claim for relief. The Tenth

Circuitondirectappealaffirmedthedistrictcourt’sdecisionongroundsthat

§ 2255 provides relief only to prisoners claiming a right to be released from

custody, and Petitioner “cannot challenge the restitution award by way of §

2255.” The Tenth Circuit cited cases soholdingfromtheEighth,Ninthand

Tenth Circuits. See United States v. Bernard, 351 F.3d 360, 361 (8th Cir.

2003); Erlandson v. Northglenn Mut. Ct.,528F.3d785,788(10thCir.2008);

UnitedStatesv.Thiele,314F.3d399,402(9thCir.2002). SeeAppendixAat

4. Petitioner now seeks a writ of certiorari to the Tenth Circuit.

ASONS FOR GRANTING THE WRIT

A writ of certiorari should be granted to Petitioner because theTenth

CircuithasenteredadecisioninconflictwiththedecisionofanotherUnited

States court of appeals on the same important matter. SeeSupremeCourt

Rule 10(a). There is a circuit split on the question whether an ineffective

assistance of counsel claim arising from deficient representation that

prejudiced the petitioner by the imposition of an unlawful $730,000.00

restitutionawardiscognizableunder28U.S.C.§ 2255. Thisisaquestionof

national importance because prisoners such as Petitioner are at a

constitutional disadvantage due to geographical differences on this legal

question.

ARGUMENT

Petitioner has a fundamental constitutional right to counsel in all

critical phases of this criminal prosecution. See Strickland v. Washington,

466U.S.668,687(1984). Theentryoftherestitutionorderintheamountof

$730,000.00isasignificanteventinPetitioner’scase. Theamountissolarge

that it qualifies as the sort of restitutionawardSecondCircuitJudgeGuido

Calebresi must have had in mind when he wrote the following: “[W]e have

not as yet foreclosed the possibility that a restitution order might entail a

sufficientlysevererestraintonliberty,notsharedbythepublicatlarge,asto

amounttoaformofcustody.” Kaminskiv.UnitedStates,399F.3d84,87(2nd

Cir. 2003). A restitution amount of $730,000.00 is a severe restraint on

liberty not shared by the public at large and thus amounts to a form of

custody, warranting cognizability under 28 U.S.C. § 2255.

Thereisacircuitsplitonthequestionwhetheraprisonercanchallenge

a restitution award under § 2255 via an ineffective assistance of counsel

claim arising from counsel’s deficient performance thatresultedinprejudice

to the prisoner. The majority of circuits have held that a prisoner may not

bring such a challenge under § 2255, whether directly or through aclaimof

ineffective assistance of counsel. See Smullen v. United States, 94 F.3d 20,

25-26 (1st Cir. 1996); Kaminski, 339 F.3d at89;UnitedStatesv.Trimble,12

F. Supp.3d 742, 745(E.D.Pa.2014);Obadov.NewJersey,328F.3d716,718

(3rdCir.2003)(similarholdingincontextof28U.S.C.§ 2254);UnitedStates

v. Segler, 37 F.3d 1131, 1136 (5th Cir. 1994); Bernickel v. United States, 113

F.3d704,706(7thCir.1997);Thiele,314F.3dat402;Erlandson,528F.3dat

788; Blaik v. United States, 161 F.3d 1341, 1343 (11th Cir. 1998). Other

jurisdictions allow such a claim to be brought under § 2255. See United

States v. Mayhew, 995 F.3d 171, 184 (4th Cir. 2021).

Due to the split of authority among the circuits on this question,

prisoners in some partsoftheUnitedStatesareaffordedfewerrightsunder

the Sixth Amendment than those in otherpartsoftheNation. Ifaprisoner

brings a challenge to their restitution award due to ineffective assistanceof

counsel in oneofthecircuitsthathaverefusedtorecognizethecognizability

of this type of claim under § 2255, they cannot vindicate their Sixth

Amendment right to counsel. Those in other geographical locations have

more robust constitutional protectionsbecausetheirSixthAmendmentright

to counsel extends to representation in relation to a restitution award.

The overwhelming magnitude of the restitution award in Petitioner’s

case—$730,000.00—sets thisapartfromthemodestawardsatissueincases

where courts have denied reliefunder§2255. Itisagargantuansum. Itis

an outlier.

It is inconceivable that Petitioner will be able to repay this amount in

his natural life. He was sentenced to 170 years in prison—based on 360

monthsoneachofthreecounts,and240monthsoneachoffourothercounts,

all of which were run consecutively.

Due to the unfathomable size of this restitution award, it imposes a

restraint on liberty so severe that it amounts to a form of custody, just as

Judge Calebresi envisioned in Kaminski. See 339 F.3d at 87. Although a

modest fine might not be “a sufficient restraint on liberty to meet the ‘in

custody’ requirement for § 2255 purposes,” United States v. Michaud, 901

F.2d 5,7(1stCir.1990),Petitioner’s$730,000.00fineiscertainlynotmodest

andissolargethatitistantamounttoarestraintonliberty,meetingthe“in

custody” requirement under § 2255.

InlightoftheobjectivelyunreasonableperformancebyPetitioner’strial

counsel regarding the restitution award, there is no doubt that Petitioner

meets the deficient performance prong under Strickland. Trial counsel

testified that he thought probation had recommended the $730,000.00

amount, so he did not challenge it. He made no inquiry and conducted no

investigation to ascertain the basis for the calculation of this restitution

amount. Trial counsel did notobjecttoit. Withrespecttothebasisforthis

extremely large restitution award, trial counsel unreasonably mounted no

challenge at all.

With respect to the requirement that restitution be requested by

identified victims, trial counsel did nothing to ensure that this requirement

was met. Thepleaagreementexpresslyrequiredthatanyrestitutionaward

be predicated on two conditions prior to sentencing. The first is that the

victims be identified. It appears that this may have been met, though the

record is unclear as to whether the manner in which they were identified

meets the requirement specified in the plea agreement. Evenassumingthe

first requirement was met, the record is devoid of any indication that any

victim ever came forth to request restitution.

Yet this was a specific

requirement of the plea agreement.

Petitioner’s lawyer did nothing to ensure that this requirement was

met. Hetestifiedthathetooktheprosecutor’swordthatthevictimstoldthe

prosecutortheywantedrestitution. Therewasnocorroborationofthis. Trial

counsel did nothing to ensure that this requirement was met. Essentially,

trial counsel just assumed that the victims would want restitution.

This isnotwhatthepleaagreementspecified. Itrequiredthatspecific

requests for restitutionbemadebeforearestitutionawardcouldbeimposed

at sentencing. No such requests appear anywhere in the record.

Trial counsel did nothing to ensure that the restitution amount was

based on solid factual evidence that would warrant such a huge amount.

And he did nothing to ensure that the victims requested restitution, as

required by the plea agreement.

Under these circumstances, trial counsel’s performancewasobjectively

unreasonable.

Petitioner was prejudiced by the deficient performance of his attorney

because in the absence of trial counsel’s unprofessional errors, there is a

reasonablelikelihoodthattheamountofrestitutionwouldhavebeenfarless,

or that no restitution award would have been imposed at all. For instance,

had counsel conducted an investigation into the basis for the restitution

award, it is likely that he would have discovered that it was devoid of any

factual basis to warrant such huge sums. Second,ifcounselhadobjectedto

restitution at sentencing on grounds that the conditions precedent had not

been met, there is a reasonable likelihood that the district court would not

have imposed restitution at all. The parties agreed that any restitution

award was predicated on specific conditions being met prior to sentencing.

The record is clear that those requirements were not met. Under these

circumstances,Petitionerwasprejudicedbyhisattorney’sfailuretopointout

to the sentencing judge that the government failed to meet this necessary

condition for a restitution award.

The record supports afindingofineffectiveassistanceofcounselunder

Strickland,buttheTenthCircuitruledthat§2255cannotproviderelieffrom

the denial of the Sixth Amendment guarantee of counsel in a criminal

prosecutionevenwherethedeficientperformanceledtoarestitutionamount

solarge—$730,000.00—astoamounttoasevererestraintonlibertyandthus

qualify as a form of custody for purposes of § 2255. SeeAppendix A at 4.

NCLUSION

Reasonable jurists could find debatable or wrong the district court’s

denial of Petitioner Elliott’s § 2255 petition. Where the Sixth Amendment

guarantee ofcounselinacriminalprosecutionwasdeniedduetoineffective

assistance that resulted in the unwarranted imposition of a restitution

award in the amount of $730,000.00—a restraint on liberty so severe as to

amount to a form of custody—it is debatable or wrong to conclude that §

2255 can provide no relief. Petitioner respectfully requests that thisCourt

grant this petition for writ of certiorari, and reverse the Tenth Circuit’s

denial of § 2255 relief.

Respectfully submitted,

s/ Scott M. Davidson (electronically filed)

OTT M. DAVIDSON

COUNSEL FOR PE

TITIONER SA

MUEL ELLIOTT

E LA

W OF FICE OF SC

OTT M. DAVIDSON, PH.D., ESQ.

1011 LOMAS BOULEVARD NW

ALBUQUERQUE, NM 87102

505-255-9084

scott@justappeals.net

RTIFICATE OF SERVICE

I hereby certify that on the 11th dayofFebruary2026,Ielectronically

filedthecertioraripetitionandappendicesonbehalfofPetitionerElliottwith

theClerkoftheCourtfortheUnitedStatesSupremeCourt. Ifurthercertify

that I have sent on this 11th day of February 2026 via FedEx to thisCourt

the original and ten copies of the petition for writ of certiorari and

appendices. In addition, I certify that I have sent on this 11th day of

February 2026 via FedEx a copy of the petition for writ of certiorari and

appendices to Counsel of Record for the Respondent.

/s/ Scott M. Davidson (electronically filed)

SCOTT M. DAVIDSON

OUNSEL FOR PE

TITIONER SA

MUEL ELLIOTT

E LA

W OF FICE OF SC

OTT M. DAVIDSON, PH.D., ESQ.

1011 LOMAS BOULEVARD NW

ALBUQUERQUE, NM 87102

505-255-9084

scott@justappeals.net

Appellate Case: 25-2018

Document: 29-1

Date Filed: 11/13/2025

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA,

Page: 1

FILED

United States Court of Appeals

Tenth Circuit

November 13, 2025

Christopher M. Wolpert

Clerk of Court

Plaintiff - Appellee,

SAMUEL ELLIOTT,

No. 25-2018

(D.C. Nos. 2:14-CR-03822-MLG-GBW-1

& 2:21-CV-00226-MLG-GBW)

(D. N.M.)

Defendant - Appellant.

_________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY *

_________________________________

Before TYMKOVICH, BALDOCK, and PHILLIPS, Circuit Judges.

_________________________________

Petitioner Samuel Elliott, a federal prisoner, requests a certificate of appealability

(COA) to appeal the district court’s denial of his 28 U.S.C. § 2255 petition to vacate, set

aside, or correct his sentence. We deny a COA and dismiss this matter.

Background

Under the advice of court-appointed counsel, Mr. Elliott entered a conditional plea

to three counts of producing child pornography and four counts of possessing child

pornography. After the evidentiary hearing, the district court sentenced Mr. Elliott within

the guidelines range to 170 years’ imprisonment—360 months’ imprisonment for each of

This order is not binding precedent except under the doctrines of law of the case,

res judicata, and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Appendix A

Appellate Case: 25-2018

Document: 29-1

Date Filed: 11/13/2025

Page: 2

the three production counts to run consecutively, and 240 months’ imprisonment for each

of the four possession counts, also to run consecutively. The district court also entered a

restitution award against Mr. Elliot. Mr. Elliott appealed, and this court held that three of

the four possession convictions violated the Double Jeopardy Clause and remanded to the

district court with instructions to vacate three of the possession convictions and

sentences. See United States v. Elliott, 937 F.3d 1310, 1312 (10th Cir. 2019). On

remand, the district court sentenced Mr. Elliott to a within-guidelines sentence of 360

months’ imprisonment for the production counts and 240 months’ imprisonment for the

remaining possession count, all to run consecutively, for a total of 110 years’

imprisonment. The restitution award remained.

Mr. Elliott filed a pro se motion under 28 U.S.C. § 2255 asserting a violation of

his Sixth Amendment right to counsel. The case was referred to a magistrate judge to

conduct hearings and to issue proposed findings and recommendations for disposition

(PFRD). The magistrate judge appointed Mr. Elliott new counsel, held an evidentiary

hearing, and recommended denying Mr. Elliott’s § 2255 petition on the merits and

denying a COA. Mr. Elliott objected to the PFRD. After de novo review, the district

court entered an order overruling Mr. Elliott’s objections, adopting the PFRD in full,

denying the § 2255 petition on the merits, and dismissing the case with prejudice.

Following a limited remand from this court, the district court also denied Mr. Elliott a

COA. Supp. R. at 13. Mr. Elliott now seeks a COA from this court.

Appellate Case: 25-2018

II.

Document: 29-1

Date Filed: 11/13/2025

Page: 3

Discussion

To appeal, Mr. Elliott must obtain a COA. 28 U.S.C. § 2253(c)(1)(B). To obtain

a COA, the petitioner must make a substantial showing of the denial of a constitution

right. Id. § 2253(c)(2). When the district court rejects “the constitutional claims on the

merits . . . [t]he petitioner must demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

529 U.S. 473, 484 (2000).

Mr. Elliott asserts three grounds for relief under § 2255 based on ineffective

assistance of counsel. To succeed on an ineffective assistance of counsel claim, he must

demonstrate that (1) “counsel’s performance was deficient” and (2) “that the deficient

performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687

(1984). A counsel’s performance is deficient if “that counsel made errors so serious that

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

Amendment.” Id. (internal quotation marks omitted). Specifically, “the defendant must

show that counsel’s representation fell below an objective standard of reasonableness.”

Id. at 688. A deficient performance is prejudicial to the defendant, when the defendant

shows “there is 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. Both prongs

must be met, id. at 687, but the court may address them in any order, id. at 697. If the

defendant fails to satisfy one, then the court need not address both. Id. Mr. Elliott asserts

claims based on counsel’s failure to challenge his restitution order, his failure to view the

Appellate Case: 25-2018

Document: 29-1

Date Filed: 11/13/2025

Page: 4

evidence related to his sentencing, and his failure to advocate for him in plea

negotiations.

Concerning the first claim, the plain language of § 2255 provides relief to

prisoners claiming a right to be released from custody. 28 U.S.C. § 2255. Because

§ 2255 affords relief to a movant claiming a right to be released from custody, we

conclude Mr. Elliott cannot challenge the restitution award by way of § 2255. See, e.g.,

United States v. Bernard, 351 F.3d 360, 361 (8th Cir. 2003) (concluding § 2255 “affords

relief only to prisoners claiming a right to be released from custody”); cf. Erlandson v.

Northglenn Mun. Ct., 528 F.3d 785, 788 (10th Cir. 2008) (observing that “the payment of

restitution or a fine, absent more, is not the sort of significant restraint on liberty

contemplated in the custody requirement of the federal habeas statutes” (internal

quotation marks and brackets omitted)). And challenging the restitution award within an

ineffective assistance claim, or together with other claims seeking release from custody,

does not cure the custody requirement. See United States v. Thiele, 314 F.3d 399, 402

(9th Cir. 2002) (concluding relief from restitution is not a cognizable claim under § 2255

even when presented with a cognizable claim or as an ineffective-assistance claim).

As for Mr. Elliott’s second and third claims, we conclude he has failed to

demonstrate that reasonable jurists would find the district court’s assessment of his

ineffective assistance of counsel claim debatable or wrong. Mr. Elliott contends counsel

was ineffective because he failed to view certain evidence when giving advice to

Mr. Elliott concerning his objections at the sentencing hearing. Mr. Elliott contends the

advice given “was objectively unreasonable because it was not based on an adequate

Appellate Case: 25-2018

Document: 29-1

Date Filed: 11/13/2025

Page: 5

investigation of the relevant facts.” Pet’r’s Br. at 27. Mr. Elliott argues that had counsel

viewed the video evidence and confirmed that the conduct in the video met the definition

of penetration for purposes of determining a sentence enhancement, he would have

withdrawn his objection. He also argues that counsel’s failure to view the video

precluded counsel from giving Mr. Elliott better advice on whether to testify about the

video and planning a more effective cross-examination of the agent who testified about it.

Finally, Mr. Elliott contends counsel—who admitted he would have withdrawn if

asked—should have withdrawn if he did not want to conduct a reasonable investigation.

In sum, Mr. Elliott asserts counsel’s conduct was objectively unreasonable. We disagree.

The record supports the district court’s findings that counsel did not act objectively

unreasonable under the circumstances. And Mr. Elliott has not established any prejudice

based on counsel’s alleged deficient performance. Thus, reasonable jurists would not

find the district court’s assessment of Mr. Elliott’s constitutional claim debatable or

wrong.

Mr. Elliott also argues that counsel “effectively abandoned” plea bargaining.

Pet’r’s Br. at 30. He claims counsel’s failure to timely communicate plea offers and

advocate for a plea agreement closer to the mandatory minimum—15 years’

imprisonment—amounted to deficient performance. We need not consider whether

counsel was deficient in his performance because in claiming ineffective assistance of

counsel for a guilty plea “a defendant must establish prejudice by showing a reasonable

probability that they would have accepted the earlier plea offer had they been afforded

effective assistance of counsel.” Missouri v. Frye, 566 U.S. 134, 147 (2012) (internal

Appellate Case: 25-2018

Document: 29-1

Date Filed: 11/13/2025

Page: 6

quotation marks omitted). Mr. Elliott does not argue that he would have accepted any of

the plea offers, or a plea closer to the mandatory minimum, if one had been successfully

negotiated. Failure to do so is fatal to his claim. See id.

III.

Conclusion

We deny Mr. Elliott a COA and dismiss this matter.

Entered for the Court

Bobby R. Baldock

Circuit Judge

Case 2:21-cv-00226-MLG-GBW

Document 72

Filed 12/18/24

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

____________________

SAMUEL ELLIOTT,

Plaintiff,

Civ. Case No. 2:21-cv-00226-MLG-GBW

Crim. Case No.: 14-cr-03822-MLG-GBW-1

UNITED STATES OF AMERICA,

Defendant.

ORDER ADOPTING MAGISTRATE JUDGE’S PROPOSED

FINDINGS AND RECOMMENDED DISPOSITION

Magistrate Judge Gregory B. Wormuth filed the Proposed Findings and Recommended

Disposition (“PFRD”) on April 9, 2024. Doc. 59. This PFRD recommends the Court deny Plaintiff

Samuel Elliott’s Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a

Person in Federal Custody, Doc. 1, and dismiss his civil case with prejudice.1 Doc. 59 at 1, 27.

Elliott raised three grounds for relief, all based on ineffective assistance of counsel, including: (1)

defense counsel’s failure to review the evidence against him and advise Elliott as to the accuracy

of the presentence reports and potential objections, Doc. 1 at 4; Doc. 2 at 1-7; (2) poor assistance

of counsel during plea bargaining, Doc. 1 at 5; Doc. 2 at 7-9; and (3) defense counsel’s failure to

correct two alleged errors in the Court’s awardance of restitution, Doc. 1 at 7; Doc. 2 at 10-13. The

PFRD recommends denying each of Elliot’s arguments. Doc. 59 at 5-6; id. at 7-19 (addressing

evidentiary review arguments); id. at 19-24 (analyzing plea arguments); id. at 25-26 (considering

restitution arguments).

Elliott also filed this motion in the related criminal case. See Motion Under 28 U.S.C. § 2255 to

Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, United States v. Elliott,

2:14-cr-03822-MLG-GBW-1 (Mar. 12, 2021), ECF. No. 170.

$SSHQGL[%

Case 2:21-cv-00226-MLG-GBW

Document 72

Filed 12/18/24

Page 2 of 2

The PFRD notified the parties of their ability to file objections within fourteen days and

that failure to do so waived appellate review. Id. at 27. After twice extending Elliott’s time to file

objections to the PFRD, Elliott filed his objections on June 14, 2024. Docs. 61, 63, 64. The United

States also sought an extension and then responded on July 31, 2024. Doc. 69.

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Federal Rule of Civil Procedure 72(b), the Court

has conducted a de novo review of the record and of the PFRD and considered the relevant

objections. The Court finds no reason either in law or fact to depart from Judge Wormuth’s wellreasoned and extremely thorough PFRD and will adopt the conclusions memorialized therein in

full. Doc. 59. The Court will enter a separate final judgment pursuant to Federal Rule of Civil

Procedure 58.

It is therefore ordered as follows:

Elliott’s objections to the Proposed Findings and Recommended

Disposition, Doc. 64, are overruled.

Judge Wormuth’s Proposed Findings and Recommended Disposition, Doc.

59, is adopted in full.

Elliott’s motion to vacate under 28 U.S.C. § 2255, Doc. 1, is denied and this

civil case is hereby dismissed with prejudice.

The same motion to vacate filed in Elliott’s criminal case, Elliott, 2:14-cr03822-MLG-GBW-1, ECF No. 170, is similarly denied. That criminal case

will remain closed.

UNITED STATES DISTRICT JUDGE

MATTHEW L. GARCIA

Case 2:21-cv-00226-MLG-GBW

Document 71

Filed 12/18/24

Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

____________________

SAMUEL ELLIOTT,

Plaintiff,

Civ. Case No. 2:21-cv-00226-MLG-GBW

UNITED STATES OF AMERICA,

Defendant.

JUDGMENT

Pursuant to Federal Rule of Civil Procedure 58(a), and consistent with the Order Adopting

Magistrate Judge’s Proposed Findings and Recommended Disposition filed contemporaneously

herewith, the Court issues its separate judgment finally disposing of this civil case. It is ordered

that this civil action is dismissed with prejudice.

____________________________________

UNITED STATES DISTRICT JUDGE

MATTHEW L. GARCIA

$SSHQGL[&

Case 2:21-cv-00226-MLG-GBW

Document 80

Filed 03/10/25

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

____________________

SAMUEL ELLIOTT,

Plaintiff,

Civ. Case No. 2:21-cv-00226-MLG-GBW

Crim. Case No.: 14-cr-03822-MLG-GBW-1

UNITED STATES OF AMERICA,

Defendant.

ORDER DENYING CERTIFICATE OF APPEALABILITY

This matter initially came before the Court on Plaintiff Samuel Elliott’s Motion Under 28

U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. Doc. 1

(“Motion”). Elliott raised three grounds for relief, all based on ineffective assistance of counsel,

including: (1) defense counsel’s failure to review the evidence against him and advise Elliott as to

the accuracy of the presentence reports and potential objections, Doc. 1 at 4; Doc. 2 at 1-7; (2)

poor assistance of counsel during plea bargaining, Doc. 1 at 5; Doc. 2 at 7-9; and (3) defense

counsel’s failure to correct two alleged errors in the Court’s awardance of restitution, Doc. 1 at 7;

Doc. 2 at 10-13. The Court referred the matter to Magistrate Judge Gregory B. Wormuth to hold

hearings and submit his analysis, findings of facts, and recommended disposition. Doc. 58.

Judge Wormuth then filed the Proposed Findings and Recommended Disposition

(“PFRD”) which addressed Elliott’s Motion. Doc. 59. The PFRD recommended the Court deny

Elliott’s Motion, dismiss his civil case with prejudice, and deny a certificate of appealability

(“COA”). Id. at 1, 5-6, 7-19 (addressing evidentiary review arguments), 19-24 (analyzing plea

arguments); id. at 25-26 (considering restitution arguments), 27 (summarizing conclusions). The

Court adopted the recommendation in full and overruled Elliott’s objections to the PFRD, Doc.

$SSHQGL['

Case 2:21-cv-00226-MLG-GBW

Document 80

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Page 2 of 3

64. Doc. 72 at 2. The Court neglected, however, to affirmatively state whether the Court would

deny a COA. See id. at 1-2. Elliott then filed his Request for Certificate of Appealability, Doc. 73,

and appealed this Court’s dismissal of his Motion. Doc. 74.

On March 5, 2025, the Tenth Circuit Court of Appeals abated Elliott’s appeal and directed

this Court to consider whether to issue a COA in connection with the dismissal of Elliott’s Motion.

Doc. 79.

An appeal cannot be taken unless a circuit justice or judge issues a COA. 28 U.S.C. §

2253(c)(1). To merit issuance of a COA, the petitioner must have “made a substantial showing of

the denial of a constitutional right,” which includes a showing that reasonable jurists would find

the ruling “debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); 28 U.S.C. §

2253(c). Elliott argues he met that standard and his Motion should have been resolved in a different

manner because he was denied his constitutional right to counsel due to his trial attorney’s

“objectively unreasonable failure” to (1) challenge the restitution order, (2) review critical

evidence and give “solid advice” regarding objections to the presentence report, and (3) conduct

plea negotiations. Doc. 73 at 1-2. For the reasons detailed in the PFRD, which the Court adopted

in full, the Court disagrees. Elliott has failed to make the requisite substantial showing that he was

denied a constitutional right.

The Court lacks subject matter jurisdiction to alter restitution orders under 28 U.S.C. §

2255, “even when coupled with a challenge to a sentence of imprisonment.” United States v.

Satterfield, 218 F. App’x 794, 795 (10th Cir. 2007); see Doc. 59 at 25-26. Elliott objected to this

jurisdictional bar, arguing the PFRD erroneously ignored other circuit court precedent that allowed

review of restitution orders under Section 2255. Doc. 64 at 9 (citing United States v. Bernard, 351

F.3d 360, 361 (8th Cir. 2003), and Weinberger v. United States, 268 F.3d 346, 351 n.1 (6th Cir.

Case 2:21-cv-00226-MLG-GBW

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2001)). The Tenth Circuit has followed the Eighth Circuit’s approach (along with a majority of

circuits) in concluding “a federal prisoner cannot challenge the restitution portion of his sentence

using 28 U.S.C. § 2255, because the statute affords relief only to prisoners claiming a right to be

released from custody.” United States v. Sorsby, No. 20-3249, 2021 WL 4901655, at *3 (10th Cir.

Oct. 21, 2021) (quoting Bernard, 351 F.3d 361, and citing cases).

As to Elliott’s two other arguments, the PFRD carefully detailed and applied evidence and

testimony from the evidentiary hearing and concluded that several of Elliott’s arguments

concerning the objections to the presentence report were “flawed” and “fatal” to his argument.

Doc. 59 at 8-9. The PFRD also determined Elliott’s counsel did communicate particular plea offers

to him, Elliott did not show a reasonable probability that he would have accepted the at-issue plea

offers, and he failed to present evidence of a formal plea offer of “20-45 years.” Id. at 19-24.

Elliott’s objections rehashed many of the arguments he raised in his prior briefing and failed to

show that his trial attorney “made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed . . . by the Sixth Amendment,” or that he was prejudiced by his attorney’s

errors. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Doc. 64 at 11-21.

Accordingly, for the reasons stated in the PFRD and the Court’s order adopting those

findings, the Court concludes Elliott has not made a substantial showing of a denial of his

constitutional rights, nor is it reasonably debatable that he was afforded adequate effective counsel.

The Court therefore denies a COA in connection with the dismissal of Elliott’s petition.

The Clerk’s Office shall supplement the preliminary record as requested and transmit a

copy of this Order to the Tenth Circuit Court of Appeals in compliance with the Order issued

March 5, 2025. It is so ordered.

UNITED STATES DISTRICT JUDGE

MATTHEW L. GARCIA

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.