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United States v. Holman

United States District Court, D. Nevada

June 21, 2017

UNITED STATES OF AMERICA, Plaintiff(s),
v.
ERIC HOLMAN, Defendant(s).

          ORDER

         Presently before the court is petitioner Erik Holman's (“petitioner”) motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (ECF No. 159). The government filed a response (ECF No. 166), to which petitioner replied (ECF No. 168).

         I. Facts

         Petitioner was charged with conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349 (count one) and 14 counts of wire fraud in violation of 18 U.S.C. § 1343 (counts two through fifteen) and was indicted by a federal grand jury in December 2011. (ECF No. 1). On July 8, 2013, petitioner filed a motion to dismiss alleging that the government failed to preserve potentially exculpatory evidence and acted in bad faith by failing to acquire that evidence. (ECF No. 62). The government responded, and petitioner replied. (ECF Nos. 63, 65). The magistrate judge recommended denying the motion to dismiss, to which defense counsel did not object. (ECF No. 72). The court adopted the magistrate judge's report and recommendation in its entirety. (ECF No. 81).

         In March 2014, petitioner was found guilty of all 15 counts by a jury. (ECF No. 106). On October 23, 2014, petitioner appeared before the court and was sentenced to 37 months imprisonment concurrently on all claims. (ECF No. 138). Petitioner filed a notice of appeal on November 4, 2014. (ECF No. 143). Petitioner argued on appeal that the government failed to preserve potentially exculpatory evidence and acted in bad faith by failing to acquire that evidence; the Ninth Circuit barred these arguments because, by failing to respond to the magistrate's report and recommendation, defendant waived the right to challenge the magistrate's factual findings. See United States v. Holman, 633 F. App'x. 404 (9th Cir. Jan. 29, 2016); (ECF No. 159).

         Petitioner filed the instant motion to vacate on April 6, 2017, alleging ineffective assistance of counsel because counsel failed to object to the magistrate's factual findings in the report and recommendation and thereby failed to preserve the issue for appeal. (ECF No. 155). Petitioner also reasserts prosecutorial misconduct and government violations of Brady v. Maryland, 373 U.S. 83, (1963). (ECF No. 159).

         II. Legal Standard

         Federal prisoners “may move . . . to vacate, set aside or correct [their] sentence” if the court imposed the sentence “in violation of the Constitution or laws of the United States . . . .” 28 U.S.C. § 2255(a). Section 2255 relief should be granted only where “a fundamental defect” caused “a complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 345 (1974); see also Hill v. United States, 368 U.S. 424, 428 (1962).

         Limitations on § 2255 motions are based on the fact that the movant “already has had a fair opportunity to present his federal claims to a federal forum, ” whether or not he took advantage of the opportunity. United States v. Frady, 456 U.S. 152, 164 (1982). Section 2255 “is not designed to provide criminal defendants multiple opportunities to challenge their sentence.” United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).

         III. Discussion

         In the instant motion, petitioner asserts (1) ineffective assistance of counsel, (2) prosecutorial misconduct, and (3) government violations of Brady v. Maryland. (ECF No. 159). As an initial matter, the second and third issues raised by petitioner are barred by the petitioner's direct appeal on those issues. United States v. Hayes, 231 F.3d 1132, 1139, (9th Cir. 2000) (citing United States v. Redd, 759 F.2d 699, 700-01 (9th Cir. 1985)) (“When a defendant has raised a claim and has been given a full and fair opportunity to litigate it on direct appeal, that claim may not be used as basis for a subsequent § 2255 petition.”).

         The Brady violation was heard on appeal when considering whether there was evidence presented in defendant's motions that exculpatory emails were suppressed by the government. (ECF Nos. 62, 159). The magistrate judge concluded that the government never possessed the allegedly exculpatory emails in the first place, that the petitioner presented no evidence showing the emails were in fact exculpatory, and that the government was had no duty to procure those emails if they were. (ECF No. 72). The petitioner seeks to relitigate these issues under the guide of a Brady violation.

         Even allowing the Brady violation argument, petitioner must prove: “(1) [t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.” United States v. Williams, 547 F.3d 1187, 1202 (9th Cir. 2008) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)) (internal quotation marks omitted). The petitioner, here, once again fails to provide evidence that the emails were, in fact, “favorable to the accused” or that the evidence was suppressed by the state. (See ECF No. 159).

As to the ineffective assistance of counsel claim, a petitioner must show:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious 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 showing that counsel's ...

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