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UNITED STATES OF AMERICA, Plaintiff, v. ALEKSANDR SURIS, Defendant.
ORDER RE: MOTION TO VACATE SENTENCE PURSUANT TO 28 U.S.C. § 2255
On August 20, 2019, following a trial, a jury convicted Aleksandr Suris of two counts of conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349, six counts of health care fraud in violation of 18 U.S.C. § 1347, and one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). (Crim. ECF No. 166.)1 On February 26, 2020, the trial court sentenced Suris to 144 months in federal custody. (Crim. ECF No. 254.) Suris appealed his conviction and sentence, and a Ninth Circuit panel affirmed both on February 16, 2021. (Crim. ECF No. 305.)
On January 24, 2022, Suris filed an unsigned 2 motion to vacate his sentence pursuant to 28 U.S.C. § 2255 in which he raises three grounds for relief due to ineffective assistance of counsel. (Mot., Civ. ECF No. 1.) The Government filed a brief opposing the motion, (Opp'n, Civ. ECF No. 24), and Suris filed a reply, (Reply, Civ. ECF No. 29).
A. Legal Standards
1. Section 2255
Section 2255 provides a mechanism by which a federal inmate may move to vacate, set aside, or correct a sentence if “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.” 28 U.S.C. § 2255(a); see also Davis v. United States, 417 U.S. 333, 344–45 (1974); United States v. Hill, 915 F.3d 669, 674 (9th Cir. 2019).
To warrant relief, a movant generally must demonstrate the existence of an error of constitutional magnitude that had a substantial and injurious effect. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) (extending Brecht harmless error standard to § 2255 motions). Relief is warranted only where a movant has shown “a fundamental defect which inherently results in a complete miscarriage of justice.” Davis, 417 U.S. at 346 (quoting Hill v. United States, 368 U.S. 424, 428 (1962)); accord United States v. Gianelli, 543 F.3d 1178, 1184 (9th Cir. 2008).
2. Ineffective Assistance of Counsel
“The Sixth Amendment guarantees criminal defendants the effective assistance of counsel.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam); accord Missouri v. Frye, 566 U.S. 134, 138 (2012) (“The right to counsel is the right to effective assistance of counsel.”). To succeed on an ineffective assistance of counsel claim, a defendant must demonstrate: (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). An ineffective assistance claim may be denied if the defendant fails to establish either prong of the Strickland test. See id.; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) (“Failure to satisfy either prong of the Strickland test obviates the need to consider the other.”). “Judicial scrutiny of counsel's performance must be highly deferential.” Strickland, 466 U.S. at 689.
A defendant may establish deficient performance by showing that “counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. There is 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. at 689 (internal quotation marks omitted). Courts “must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” Id. at 690. The court may neither second-guess counsel's decisions or trial strategy “nor apply the fabled twenty-twenty vision of hindsight.” Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009) (internal quotation marks omitted); accord Gentry, 540 U.S. at 8 (“The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.”). The defendant must show an error “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.
The prejudice inquiry “focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” Williams v. Taylor, 529 U.S. 362, 393 n.17 (2000). A defendant may establish prejudice by showing “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 391 (quoting Strickland, 466 U.S. at 694). “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011); accord Strickland, 466 U.S. at 693 (“It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.”).
Suris raises three grounds upon which he asserts his counsel rendered constitutionally ineffective representation. Each ground lacks merit.
1. Claim One
Suris faults his counsel with failing to argue at sentencing and on direct appeal that the sentencing court erred in its analysis of the commentary to the United States Sentencing Guidelines (“USSG”). Suris contends that counsel should have argued that the sentencing court improperly granted deference to an agency interpretation of a term in USSG § 2B1.1. (Mot. 4, 16–19.)
Although “ ‘a misapplication of advisory sentencing guidelines’ is not reviewable under § 2255,” Brown v. United States, 688 F. App'x 644, 651 (11th Cir. 2017) (quoting Spencer v. United States, 773 F.3d 1132, 1140 (11th Cir. 2014)); accord United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999) (“Misapplications of the Sentencing Guidelines ․ are not cognizable in § 2255 motions.”), a brief discussion of Suris's theory is appropriate. USSG § 2B1.1(b)(1) increases the offense level for certain theft and fraud claims based on the amount of “loss.” Application Note 3(A) provides that “loss is the greater of actual loss or intended loss,” and Application Note 3(F)(viii) provides that in a case where a defendant is convicted of an offense involving a government health care program, “the aggregate dollar amount of fraudulent bills submitted to the Government health care program shall constitute prima facie evidence of the amount of the intended loss.” Suris claims that, because the term “loss” as used in § 2B1.1(b)(1) is “patently unambiguous,” its interpretation in the Application Notes is not authoritative and should not be given deference. (Mot. 16–19.) His argument rests on Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019), which held that courts should not defer to an agency rule “unless the regulation is genuinely ambiguous.” Suris argues that, in calculating loss in his case, the “gross billings for prescriptions” should be offset by deducting amounts “for the prescriptions properly provided to patients.” (Id. at 16.)3
Adopting Suris's position would require a significant expansion or reconstruction of existing law. First, the Ninth Circuit has yet to apply Kisor to guidelines commentary. Instead, the Ninth Circuit continues to apply the standard stated in Stinson v. United States, 508 U.S. 36 (1993): “an Application Note ‘that interprets or explains a guideline is authoritative unless it ․ is inconsistent with, or a plainly erroneous reading of, that guideline.” United States v. Kirilyuk, 298 F.4th 1128, 1136 (9th Cir. 2022) (ellipsis in original) (quoting United States v. Prien-Pinto, 917 F.3d 1155, 1157 (9th Cir. 2019)); see id. at 1149 (Bress, J., dissenting) (collecting published decisions for the proposition that “our circuit has continued to apply Stinson to Guidelines commentary after Kisor”). Accordingly, whether the term “loss” is unambiguous is immaterial under the law of this circuit. Second, even if Kisor did apply, Suris offers no cogent argument why the term “loss” is not genuinely ambiguous. In fact, Suris's proposed calculation of loss as applied to him undermines his argument. If the term “loss” as used in USSG § 2B1.1(b)(1) were unambiguous, then there would be no need to determine whether “loss” should or should not be offset by the amounts attributable to prescriptions provided to patients, or any other amount. Nothing in the text of the guideline itself contemplates the offset Suris advocates.
Even if Kisor applied and USSG § 2B1.1(b)(1) unambiguously required an offset, Suris has not advanced a measure of the offset, if any, or his preferred calculation of the total loss. As the Government submits, the fraud of which Suris was convicted did not involve any “prescriptions properly provided to patients”—instead, the evidence showed that Suris and his codefendant submitted false and fraudulent claims to Medicare Part D drug plans for dispensing brand name prescription drugs to Medicare Part D patients even though they never purchased the drugs, let alone distributed them to patients. (Opp'n 3–4 (citing Trial Tr. 466–69, Crim. ECF No. 196).) The loss amount calculated by the sentencing court, $11,826,444.65, derives from the amount stated in an invoice reconciliation identifying drug shortages between January 2013 and March 2015. (Sentencing Tr. 12–13, Crim. ECF No. 262; see Pullio Decl. Ex. A, Crim. ECF No. 240-2 (invoice reconciliation).) Suris offers no argument or evidence that the loss calculated by the sentencing court should be offset by any amount given the evidence upon which the loss calculation is based, let alone any alternative calculation of loss he wishes his counsel had advanced.
In short, Suris's theory of loss lacks factual and legal merit. Accordingly, Suris fails to show that his counsel's decision not to raise his novel sentencing argument was tantamount to objectively deficient performance. “There are countless ways to provide effective assistance in any given case.” Strickland, 466 U.S. at 689. Suris cannot prevail by showing that his interpretation of the sentencing guidelines was reasonable or that counsel failed to advance it. He must allege facts supporting an inference that his attorney's strategy was unreasonable. Here, counsel's decision not to advance a theory he believes not “to be a true statement of the law” is reasonable for the reasons described above. (Steingard Decl. ¶ 20(a), Civ. ECF No. 25-1.) See, e.g., Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (“[T]he failure to take a futile action can never be deficient performance ․”); James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994) (“Counsel's failure to make a futile motion does not constitute ineffective assistance of counsel.”).
Suris also fails to demonstrate prejudice. For the reasons discussed above, even if counsel had advanced Suris's meritless argument, there is no reasonable probability the sentencing judge or the panel on direct appeal would have accepted it and imposed a different sentence or would have vacated the sentence imposed.
2. Claim Two
Suris contends his counsel rendered ineffective assistance by failing to provide “the constitutionally minimum advice necessary to make a knowing and voluntary decision to proceed to trial.” (Mot. 20.) He contends that, if counsel had adequately advised him of the likelihood of conviction in light of the evidence, there is a reasonable probability that he would have pleaded guilty instead of proceeding to trial. See id. at 5, 19–23.)
The record demonstrates that trial counsel conferred extensively with Suris regarding plea options before and during trial. (Steingard Decl. ¶¶ 10–18; Driscoll Decl. ¶¶ 4–10, Civ. ECF No. 25-2.) For example, Suris's attorneys “met frequently with Suris,” commonly “discuss[ed] the possibility of a settlement,” and “always advised Suris” of communications with prosecutors. (Steingard Decl. ¶ 10; accord Driscoll Decl. ¶¶ 4–6.) Counsel explains that he provided Suris with calculations of the consequences of pleading guilty and being convicted after trial on at least two occasions in the context of discussing plea negotiations. (Steingard Decl. ¶¶ 15–16 & Exs. 4–5.)
Despite this robust record, Suris faults his counsel with not providing him an evaluation of the likelihood of conviction in his case. (Mot. 20; Reply 8.) Although reducing the likelihood of conviction to a subjective, probabilistic estimate might have helped Suris understand the consequences of electing to proceed to trial, the Court declines to conclude that counsel failed to meet an objective standard of reasonable representation by not making such an estimate. “[A]ttorneys need only inform their clients of the ‘possible consequences,’ ‘potential consequences,’ or ‘likely consequences’ ” of plea decisions. United States v. Cazarez-Santos, 66 F. Supp. 3d 1301, 1307 (S.D. Cal. 2014) (citing Womack v. McDaniel, 497 F.3d 998, 1003–04 (9th Cir. 2007), and Gonzalez v. United States, 33 F.3d 1047, 1048 (9th Cir. 1994)). In other words, to render effective assistance, counsel need only lay out the “likely consequences” or “possible consequences” of making a plea decision, Brady v. United States, 397 U.S. 742, 748 & n. 6 (1970), “not the likelihood of each consequence,” Cazarez-Santos, 66 F. Supp. 3d at 1307. A long line of cases holding that attorneys do not render deficient performance by making a “mere inaccurate prediction” in administering advice regarding a sentence or plea illustrates this point. Sophanthavong v. Palmateer, 378 F.3d 859, 868 (9th Cir. 2004) (quoting Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986)); see also, e.g., McMann v. Richardson, 397 U.S. 759, 770–71 (1970); United States v. Keller, 902 F.2d 1391, 1394 (9th Cir. 1990). Counsel need not don a fortune teller's shawl and peer into a crystal ball to render constitutionally effective representation.
Further, Suris's claim also rests on a supposition that counsel knew or should have known, but neglected to communicate to Suris, “that there was virtually no chance he could prevail at trial.” (Mot. 20) This allegation is unsupported by any facts, and the record does not support such an inference. Indeed, Suris prevailed on several counts for which he was tried. (See Crim. ECF No. 166 (acquitting Suris of three counts of health care fraud).) The Court would “apply the fabled twenty-twenty vision of hindsight” by which counsel's performance may not be judged if it were to deem unreasonable counsel's decision not to communicate a forecast of certain defeat. Matylinsky, 577 F.3d at 1091. Here, counsel met an objective standard of reasonableness by providing Suris sufficient information concerning the possible consequences of his plea decisions.
Even if counsel erred, Suris fails to show prejudice. To demonstrate prejudice when a defendant rejects a plea based on erroneous advice, “a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.” Lafler v. Cooper, 566 U.S. 156, 164 (2012). Here, “[t]here is no indication besides [Suris's] own words that he would have made a different decision in accepting one of the government's plea deals had he believed his likelihood of conviction to be more likely or his sentence to be more severe.” United States v. Gadson, No. 4:11-cr-00010-04-RRB, 2018 U.S. Dist. LEXIS 229298, at *34 (D. Ala. Sept. 18, 2018). Moreover, although Suris posits that the sentence imposed would have been lower if he accepted a plea, (Mot. 22), Suris offers no analysis of whether the trial judge would have accepted the terms of any plea to which he would have agreed had he better understood the likelihood of conviction.
3. Claim Three
Suris claims the individual and cumulative impact of multiple errors by his counsel resulted in ineffective assistance. (Mot. 6, 23–24.) In support, Suris offers scattershot, unsubstantiated arguments criticizing counsel's performance.
Suris argues that, at sentencing, counsel “failed to investigate or present available evidence and legal authority material to ․ sentencing,” and failed to object to evidence used to determine the guideline range and sentence. (Mot. 24.) As discussed in connection with the first claim, Suris fails to articulate a sound theory favoring a different sentence, let alone any other facts or law that reasonably should have been advanced at sentencing and likely would have changed the result of the proceeding. Suris argues that counsel failed to advise him “as to all facts and law relevant to his decision to plead not guilty and proceed to trial.” (Mot. 23.) As discussed in connection with the second claim, counsel provided reasonably professional assistance in presenting Suris with information to allow him to make an informed decision about whether to plead guilty. (See generally Steingard Decl. ¶¶ 10–19; Driscoll Decl. ¶¶ 4–10.) Suris does not describe any facts or law which, if conveyed to him, likely would have changed his decision to proceed to trial.
Suris also tersely argues that trial counsel failed to move to suppress evidence without identifying any evidence subject to suppression that materially affected his conviction, (Mot. 23); that counsel failed to investigate or present evidence and testimony at trial without identifying any such evidence or stating how that evidence would have been admissible at trial and likely would have swayed the jury as to his guilt, (id.); that counsel failed to object to the introduction of the prosecution's evidence without identifying any such evidence, establishing on what ground the evidence was inadmissible, and demonstrating how the evidence's exclusion would have led to a different result at trial, (id.); that counsel failed to request appropriate jury instructions or object to instructions administered without identifying any instructions, articulating why they were improper, and explaining how different instructions likely would have led to a different result at trial, (id. at 24); that counsel failed to object to improper prosecution argument or request curative instructions without describing why the prosecution's argument was improper, why the impropriety needed to be cured, and why the cure likely would have changed the result of trial, (id.); that appellate counsel failed to investigate or present the strongest issues on direct appeal without describing any meritorious issues that might have made his appeal successful, (id.); and that counsel “labored under an actual conflict of interest” without identifying any actual or potential conflict or describing how the conflict impacted his defense, (id.).4
The allegations in this claim share a common theme: they are conclusory and unsupported. “It is well-settled that ‘conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.’ ” Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 2005) (alteration in original) (quoting James, 24 F.3d at 26); see also Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989) (stating “vague and conclusory” allegations in a § 2255 motion do not support relief); Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980) (“We also concur in the dismissal of the allegations concerning the photographic array shown to some witnesses as vague, conclusory and without any facts alleged in support of the claim.”); Neighbors v. United States, 457 F.2d 795, 795 (9th Cir. 1972) (affirming denial of § 2255 motion where the allegations regarding ineffective assistance of counsel were entirely conclusory and without support in the record). Relief must be denied because Suris's cursory arguments are insufficient to overcome the “strong presumption” that counsel acted reasonably. Strickland, 466 U.S. at 689.
The cumulative effect of these purported errors is not prejudicial. Prejudice under Strickland may result from the cumulative impact of multiple deficiencies in representation. “When an attorney has made a series of errors that prevents the proper presentation of a defense, it is appropriate to consider the cumulative impact of the errors in assessing prejudice.” Turner v. Duncan, 158 F.3d 449, 457 (9th Cir. 1998); see also Boyde v. Brown, 404 F.3d 1159, 1176 (9th Cir. 2005) (“[P]rejudice may result from the cumulative impact of multiple deficiencies.” (internal quotation marks omitted)); Harris ex rel. Ramseyer v. Wood, 64 F.3d 1432, 1438–39 (9th Cir. 1995) (observing that cumulative prejudice may obviate the need to analyze individual prejudicial effect of each of defense counsel's errors). Here, however, the Court has not found any instances in which counsel performed deficiently under Strickland. Nor does the Court find that the prejudicial impact of the alleged attorney errors, when considered together, undermines confidence in the result of the criminal proceedings. See Strickland, 466 U.S. at 694.
In summary, none of Suris's grounds for relief has merit. The Court denies the motion.
III. EVIDENTIARY HEARING, DISCOVERY, AND APPOINTMENT OF COUNSEL
In his motion, Suris requests appointment of counsel, discovery, and an evidentiary hearing. (Mot. 26–27.) The Court denied these requests without prejudice and informed Suris that it would “determine the propriety of appointment of counsel, discovery, and an evidentiary hearing in its review of the motion and records.” (Civ. ECF No. 10.)
28 U.S.C. § 2255 requires an evidentiary hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). A hearing is not necessary when the factual allegations asserted by the defendant “are so palpably incredible or patently frivolous as to warrant summary dismissal.” United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984) (citing Blackledge v. Allison, 431 U.S. 63, 76 (1977)).
For the reasons described above, the record conclusively demonstrates that Suris's grounds for relief lack merit. Suris provides insufficient facts to support a finding of ineffective assistance of counsel and thus fails to state a claim upon which relief may be granted. An evidentiary hearing would not further his claim for relief. See Hill v. Lockhart, 474 U.S. 52, 60 (1985) (“Because petitioner in this case failed to allege the kind of ‘prejudice’ necessary to satisfy the second half of the Strickland v. Washington test, the District Court did not err in declining to hold a hearing on petitioner's ineffective assistance of counsel claim.”).
Likewise, discovery is inappropriate. “A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). However, “[a] judge may, for good cause, authorize a party to conduct discovery,” and “[a] party requesting discovery must provide reasons for the request,” including “any proposed interrogatories and requests for admission” and “any requested documents.” Rule 6(a)–(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts. Rule 6 permits discovery only if the defendant offers “specific allegations” that give the court “reason to believe” the defendant could show he would be “entitled to relief” if the record were “fully developed.” Bracy, 520 U.S. at 908–09 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)). Here, further development of the record would be futile because the record conclusively demonstrates Suris's claims lack merit. Good cause to permit discovery is lacking.
The Court also declines to appoint counsel. Generally, there is no right to counsel in federal habeas proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions, and we decline to so hold today.” (citation omitted)). Nevertheless, the Court has discretion to appoint counsel for “any financially eligible person” seeking § 2255 relief “when the interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B); see also 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford counsel.”). The decision to appoint counsel generally is within the discretion of the court. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). “In deciding whether to appoint counsel in a habeas proceeding, the district court must evaluate the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Here, Suris has demonstrated the ability to articulate his claims without an attorney; notwithstanding, he cannot succeed on the merits. The Court declines to exercise its discretion to appoint counsel. Further, the Court determines that this case is not one in which appointment is required because counsel is not necessary for effective utilization of discovery procedures, no evidentiary hearing is required, and due process does not require appointment. Rules 6(a) and 8(c) of the Rules Governing Section 2255 Proceedings for the United States District Courts; see Chaney, 801 F.2d at 1196.
IV. CERTIFICATE OF APPEALABILITY
Suris has not requested a certificate of appealability, but the Court addresses whether one should issue. See United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” This means that “reasonable jurists could debate whether (or, for that matter, agree that) the petition 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 (2000) (internal quotation marks omitted). For the reasons discussed above, Suris has not made a substantial showing of the denial of a constitutional right. The Court denies a certificate of appealability.
The Court denies the motion; denies Suris's requests for an evidentiary hearing, discovery, and appointment of counsel; and denies a certificate of appealability. The Court directs the Clerk to close the civil action.
Because this Order rests in part on information in sealed documents, the Court provisionally seals this Order. Within 21 days, each party shall file a statement as to whether any matter stated in this Order is information that should remain under seal. Thereafter, the Court will determine whether any portions of this Order should be redacted in the version filed on the public docket.
IT IS SO ORDERED.
Notice has been delivered by First Class U.S. Mail to all counsel (or parties) at their last known address of record in this action on this date
1. The Court uses “Crim.” to refer to entries in the criminal case, No. 2:17-cr-00420-MCS-1, and “Civ.” to refer to entries in the civil case, No. 2:22-cv-00568-MCS.
2. Rule 2(b)(5) of the Rules Governing § 2255 Proceedings for the United States District Courts requires § 2255 motions to “be signed under penalty of perjury by the movant or by a person authorized to sign it for the movant.” The motion on file with the Court is undated and unsigned. Notwithstanding, the Court exercises jurisdiction over the claims. Ferrara v. United States, 456 F.3d 278, 295 (1st Cir. 2006).
3. In his reply, Suris further contends that, for the purpose of sentencing, the Court should calculate “loss” based on “actual loss” as opposed to “intended loss.” (Reply 5–6.) The Court rejects this argument because Suris presented it for the first time in his reply brief, Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007), and Suris rests the argument on a rhetorical observation in a dissent with no precedential value, (Reply 5 (quoting United States v. Kirilyuk, 29 F.4th 1128, 1152 (9th Cir. 2022) (Bress, J., dissenting))).
4. With respect to the last of these arguments, the record unequivocally demonstrates that there was no conflict of interest. (Steingard Decl. ¶ 22(a); Driscoll Decl. ¶ 13; Larson Decl. ¶ 5, ECF No. 25-4; Potashner Decl. ¶ 5, ECF No. 25-5.)
MARK C. SCARSI UNITED STATES DISTRICT JUDGE
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Docket No: Civ. Case No. 2:22-cv-00568-MCS
Decided: September 06, 2022
Court: United States District Court, C.D. California.
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