Fard v. United States of America

Filing 17

ORDER: Akbar Ghaneh Fard's pro se 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence (Doc. # 1) is DENIED. The Clerk is directed to enter judgment for the United States of America and to close this case. Signed by Judge Virginia M. Hernandez Covington on 8/2/2022. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
AKBAR GHANEH FARD,
v.

Case No. 8:17-cr-131-VMC-SPF
8:21-cv-2049-VMC-SPF

UNITED STATES OF AMERICA.
_______________________________/
ORDER
This matter is before the Court on Akbar Ghaneh Fard’s
28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct
Sentence (Civ. Doc. # 1; Crim. Doc. # 203), filed on August
24, 2021. The United States of America responded on January
24, 2022. (Civ. Doc. # 11). Fard replied on March 25, 2022.
(Civ. Doc. # 16). For the reasons that follow, the Motion is
denied.
I.

Background
On March 22, 2017, a grand jury indicted Fard on six

counts of wire fraud, in violation of 18 U.S.C. § 1343. (Crim.
Doc. # 1). A jury trial was conducted, and Fard was found
guilty on all charges on February 9, 2018. (Crim. Doc. # 109).
The wire fraud charges concern fraudulent scientific
research proposals that Fard submitted to obtain federal
funds through the Small Business Innovations Research Program
1

(“SBIR”) and the Small Business Transfer Technology Program
(“STTR”). (Crim. Doc. # 134 at 33). The programs require any
federal agency, department, or entity that has a research
budget larger than $100 million to set aside part of the
research
purpose

budget
is

to

for

small

stimulate

businesses.

innovation,

(Id.).

promote

The

SBIR’s

growth,

and

encourage commercialization of products by small businesses
in the United States. (Id. at 47).
In submitting proposals for SBIR funding, Fard certified
that the information he provided, including the budget, was
true, and acknowledged that providing false information in
his proposals was a federal offense. (Crim. Doc. ## 106-24,
106-44). Despite this, Fard provided false information in his
budget proposals. Specifically, although he proposed a seven
percent

profit,

Fard

ultimately

took

a

seventy

percent

profit. (Crim. Doc. # 135 at 46). Fard also stated in his
proposals that his business, Advanced Materials Technology,
Inc., had two employees, when Fard was the only employee.
(Crim Doc. # 138 at 81). Additionally, Fard proposed costs
for materials and equipment that were already included in the
subcontractor fee. (Crim. Doc. # 136 at 71).
Fard’s trial counsel moved for judgment of acquittal
three times. (Crim. Doc. # 138 at 20-21, 70; Crim. Doc. #
2

114). The motion was denied each time. (Crim. Doc. # 138 at
23, 71; Crim. Doc. # 116). On August 23, 2018, the Court
sentenced Fard to thirty-six months’ imprisonment and three
years of supervised release. (Crim. Doc. # 163).
Fard appealed. (Crim. Doc. # 166). The United States
Court of Appeals for the Eleventh Circuit affirmed. United
States v. Fard, 805 F. App’x 618 (11th Cir. 2020). The
Eleventh Circuit wrote in relevant part:
The
district
court
did
not
err
in
denying Fard’s motion for judgment of acquittal as
sufficient
evidence
supports
his
convictions. Throughout the trial, the jury heard
how Fard was warned that lying in the proposals was
illegal, and how the contracting officers relied on
the statements made by Fard, they negotiated
with Fard to ensure the budgets and research met
the agencies’ needs, and entered a final agreement,
which required modifications to be made with the
contracting officers. Further, the jury heard from
Special Agent Mazzella about how the awards were
Advanced Material Technology, Inc.’s (AMTI’s) only
source of income, Fard’s spending was inconsistent
with
the
information
in
the
budgets,
and Fard diverted approximately 70 percent of the
funds awarded to AMTI. From the combination
of Fard’s obligations and actual spending, the
Government presented sufficient evidence to show
that Fard had made material misrepresentations to
the agencies. From his success in obtaining the
awards,
the
jury
could
also
conclude
that Fard’s statements had the natural tendency of
influencing those in charge of granting the awards.
Additionally, the jury could conclude the agencies
were harmed and did not receive the benefits of
their bargaining with Fard. From both NASA and the
Navy
representatives,
the
jury
heard
how Fard’s intentional misrepresentations resulted
3

in the agencies awarding funds they otherwise would
not have, thereby undermining the purpose of the
programs to stimulate innovation and economic
growth.
Id. at 619–20 (citations omitted).
Fard has now filed the instant motion pursuant to 28
U.S.C.

§

2255.

(Civ.

Doc.

#

1).

The

United

States

has

responded (Civ. Doc. # 11), and Fard has replied (Civ. Doc.
# 16). The Motion is ripe for review.
II.

Legal Standard
Fard bears the burden of proving that he is entitled to

relief under Section 2255. Rivers v. United States, 777 F.3d
1304, 1316 (11th Cir. 2015).
To prevail on a claim of ineffective assistance of
counsel,

a

petitioner

must

show

that

(1)

his

counsel’s

performance was deficient, and (2) the deficient performance
prejudiced his defense. Strickland v. Washington, 466 U.S.
668, 687 (1984). To establish deficient performance, Fard
must demonstrate by a preponderance of the evidence “that
particular and identified acts or omissions of counsel ‘were
outside

the

wide

range

of

professionally

competent

assistance.’” Chandler v. United States, 218 F.3d 1305, 1314
(11th Cir. 2000) (citations omitted). In other words, Fard
must show that “no competent counsel would have taken the

4

action that his counsel did take.” Id. at 1315. In deciding
whether an attorney’s performance was deficient, courts are
“highly deferential” and “indulge [the] strong presumption
that counsel’s performance was reasonable and that counsel
made all significant decisions in the exercise of reasonable
professional judgment.” Id. at 1314 (internal quotation marks
omitted).
To satisfy Strickland’s second prong — prejudice — Fard
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. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. “However, if a
claim fails to satisfy the prejudice component, the Court
need not make a ruling on the performance component.” Ortiz
v. United States, No 8:15-cr-409-VMC-JSS, 2017 WL 6021645, at
*2 (M.D. Fla. Jan. 11, 2017).
III. Analysis
In his Motion, Fard advances two grounds for postconviction relief, both based on ineffective assistance of
counsel. (Civ. Doc. # 1 at 4-5).

5

A.

Ground One

First, Fard argues that his trial counsel, Bruce H. Lehr,
was ineffective because he failed to: (1) investigate the
facts, law, and evidence; (2) obtain, develop, and present
exculpatory

evidence;

(3)

confront

and

impeach

the

government’s witnesses; (4) investigate, interview, and call
favorable defense witnesses; (5) file a pre-trial motion to
dismiss the indictment; and (6) adequately and effectively
argue a Rule 29 motion. (Civ. Doc. # 1 at 4).
1. Investigation and Exculpatory Evidence
Regarding Lehr’s investigation, Fard argues that Lehr
failed to investigate the contracts and subsequently failed
to present exculpatory evidence. (Civ. Doc. # 2 at 4). Fard
also contends that Lehr failed to investigate and produce
evidence

that

demonstrated

that

the

proposed

costs

were

estimates, and that the General and Administrative (“G & A”)
rates were not fraudulent. (Id. at 6, 14). Additionally, Fard
claims that Lehr failed to investigate and present evidence
pertaining to the NASA SBIR and STTR Program Solicitations,
the

Federal

Acquisition

Regulations

(“FAR”),

and

the

government SBIR website. (Id. at 9).
Fard has not shown that Lehr was ineffective for failing
to investigate or present the evidence to which Fard cites in
6

his

memorandum.

First,

counsel

is

not

ineffective

for

choosing not to investigate or present every bit of potential
evidence. See Strickland, 466 U.S. at 690-91 (finding that
“[s]trategic

choices

made

after

less

than

complete

investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation”); see also Fugate v. Head, 261 F.3d 1206, 1217
(11th Cir. 2001) (recognizing that “there is no absolute duty
to

investigate

particular

facts

or

a

certain

line

of

defense”).
More importantly, Lehr swore in his affidavit that he
“fully familiarized [himself] with all the discovery provided
by the Government” and “explored all possible defenses,”
supporting that Lehr did investigate the case. (Civ. Doc. #
11-1 at 2). Lehr also met with Fard in person to go over the
discovery and Fard’s theories of innocence. (Id. at 3). But
“[e]ach of [Fard’s] theories only showed him to be more guilty
of the allegations.” (Id. at 2). According to Lehr, “[w]hat
[Fard] refused to accept or comprehend was that he made
numerous representations to the government to be awarded
grants; they were blatantly false; when the investigation
took place, he blatantly lied, and then spent the monies of
the grants for everything from groceries to household items
7

instead of the purposes for which they were awarded.” (Id. at
3). Nevertheless, despite Lehr’s belief that the government’s
case was “tremendous[ly]” strong, he hired and called an
expert witness to testify to Fard’s interpretation of the
contracts: that once the grant monies “were received the
grantee was free to do what he wished with the funds.” (Id.
at 3-4).
Thus,
relevant

record

the

discovery,

reflects

that

investigated

Lehr

the

reviewed

defense

all

theories

proposed by his client, and determined those theories to be
meritless. Under these circumstances, the Court cannot hold
that Lehr’s representation was ineffective. See Bryant v.
United States, No.: 2:10-cv-8044-RDP-JHE, 2013 WL 4079339 at
*9 (N.D. Ala., Aug. 13, 2013) (explaining that trial counsel’s
affidavit demonstrated that petitioner’s conclusory claims
lacked

merit

investigate

because

the

case,

counsel
meet

“had

with

his

sufficient
client,

time

and

to

obtain

necessary information”).
Regardless, even if Lehr was ineffective, the Court does
not find prejudice. As this Court and the Eleventh Circuit
have previously held, the government provided strong evidence
that Fard made material misrepresentations to the agencies
and Fard’s arguments to the contrary are unconvincing. See
8

Fard, 805 F. App’x at 620 (holding that a reasonable jury
could conclude that Fard made material misrepresentations to
government agencies that harmed those agencies); see also
United States v. Aldissi, 758 F. App’x 694, 708 (llth Cir.
2018) (explaining that “[w]hile the FAR does apply to a
certain extent to SBIR/STTR, other rules also govern these
types of awards”).
2. Confront and Impeach Government’s Witnesses
Next, Fard asserts that Lehr failed to confront and
impeach

the

government

witnesses

and

reveal

that

the

government presented false testimony. (Civ. Doc. # 2 at 2).
Specifically, Fard argues that the government presented false
testimony that (1) Fard submitted a fraudulent G & A Rate,
(2)

Fard

charged

SBIR/STTR

contracts

with

business

entertainment expenses, (3) Fard was entitled to receiving
only seven percent of the value of the contract as profit,
and (4) Fard undermined the purpose of the SBIR/STTR programs.
(Id. at 39). He asserts that Lehr should have presented
evidence

to

demonstrate

the

alleged

falsity

of

this

testimony. (Id.).
However, as an initial matter, Fard has not proven that
this testimony was false. The testimony of the government
witnesses was credible and consistent with the independent
9

evidence establishing Fard’s guilt. See United States v.
Georgiou, No. CR 09-88, 2018 WL 9618008, at *44 (E.D. Pa.
June

19,

2018)

(explaining

that

the

petitioner

had

not

established prejudice based on counsel’s alleged failure to
impeach a witness because the claim that the witness testified
falsely

was

conclusory

and

against

the

weight

of

the

evidence).
For instance, Fard contends that Special Agent Mazzella,
Carlos Torrez (the SBIR/STTR program manager at NASA), Libby
Romaguera (a contracting officer at NASA), and Brad Binder (a
contract specialist at NASA) lied about their interpretations
of

Fard’s

SBIR/STTR

contracts.

Not

only

are

Fard’s

allegations entirely conclusory, but there is evidence to
support their testimony that the contract estimates were
binding. For example, Fard acknowledged that providing false
information in his proposals for the SBIR contracts was a
federal

offense.

(Crim.

Doc.

##

106-24,

106-44).

Additionally, the government’s witnesses provided largely
consistent testimony. See Honken v. United States, 42 F. Supp.
3d 937, 172 (N.D. Iowa 2013) (finding that testimony was not
false

when

witnesses’

testimony

was

“extraordinarily

consistent”). Because Fard has not proven that the testimony
was false, he cannot show prejudice.
10

Likewise, Fard has not shown that Lehr was ineffective
for failing to prove that the testimony was false. Lehr acted
reasonably and did cross-examine and impeach some of the
government’s witnesses, including Special Agents Mazzella and
Matteis, among others. (Doc. # 135 at 48-75; Doc. # 137 at
123-24).

For

example,

at

one

point,

Lehr

challenged

government witness Torrez by asking him what language in the
contracts made the estimates binding. (Crim. Doc. # 135 at
142).
Additionally, even if Lehr performed poorly when crossexamining the government witnesses, he hired and called an
expert witness to testify to Fard’s interpretation of the
contracts. That is, he presented the testimony of an expert
that conflicted with the government witnesses’ testimony and
interpretations of the contracts. Therefore, the Court cannot
find that Lehr was ineffective. See Honken, 42 F. Supp. 3d at
1024 (finding no ineffective assistance of counsel when trial
counsel called witnesses to support the movant’s version of
events).
3. Failure to Call Favorable Witnesses
Fard also argues that Lehr was ineffective because “Lehr
failed

to

conduct

any

investigation

on

[four]

potential

defense witnesses,” and “[h]ad Lehr called these government
11

officials to testify, they would have provided exculpatory
testimony.” (Civ. Doc. # 2 at 14). Although Fard names these
potential

witnesses,

insufficient

to

his

allegations

establish

either

are

conclusory

and

ineffectiveness

or

prejudice. See Wilson v. United States, 962 F.2d 996, 998
(11th Cir. 1992) (per curiam) (“Conclusory allegations of
ineffective

assistance

are

insufficient.”

(citation

omitted)).
First, the decision to call a witness is typically a
strategic decision and there is a strong presumption that
declining to call the witness was “sound trial strategy.”
Place v. United States, No. 09-10152-NMG, 2014 WL 2803740, at
*3 (D. Mass. June 20, 2014); see also Buckelew v. United
States, 575 F.2d 515, 521 (5th Cir. 1978) (“[C]omplaints of
uncalled witnesses are not favored, because the presentation
of testimonial evidence is a matter of trial strategy and
because allegations of what a witness would have testified
are largely speculative.”). Here, while he did not call the
potential witnesses Fard names, Lehr called an expert to
testify to Fard’s interpretation of the contracts. Therefore,
Fard has not shown that Lehr was unreasonable in his choice
of which witnesses to present at trial.

12

Furthermore, Fard does not identify what exculpatory
evidence the potential witnesses would have provided through
their testimony. See Harrison v. Quarterman, 496 F.3d 419,
428

(5th

Cir.

defendant’s

2007)

failure

(explaining
to

present

that
some

“[o]rdinarily,

evidence

from

a

the

uncalled witness regarding that witness’s potential testimony
and willingness to testify would be fatal to an ineffective
assistance of counsel claim”). Indeed, Fard did not submit
affidavits from the potential witnesses setting forth their
possible testimony. See Streeter v. United States, 335 F.
App’x 859, 864 (11th Cir. 2009) (holding that the district
court did not err in denying claim for ineffective assistance
of counsel when movant did not provide an affidavit setting
forth the testimony of the potential witness). Because Fard
did not specify what testimony the potential witnesses would
have provided, he has not shown prejudice.
4. Motion to Dismiss the Indictment
Next, Fard claims that Lehr “should have filed a motion
to dismiss the [indictment] because the alleged scheme in
wire fraud charges did not amount to a crime.” (Civ. Doc. #
2 at 26-27).
First, the Court notes that, while Lehr did not move to
dismiss the indictment based on the argument that Fard’s
13

scheme was not a crime, he did move to dismiss two counts on
statute of limitations grounds. (Crim. Doc. # 89). This
suggests that Lehr made a reasonable strategic decision to
pursue certain arguments in a motion to dismiss rather than
others. See United States v. Hinds, 2 F. App’x 420, 423 (6th
Cir. 2001) (“Trial strategy includes the decision not to file
certain motions if, after investigation, doing so would not
be necessary or advantageous.”).
And to establish prejudice, Fard must show a reasonable
probability that, had a motion to dismiss the indictment been
filed, it would have been granted. See Zeigler v. Crosby, 345
F.3d 1300, 1308-09 (11th Cir. 2003) (explaining that the
defendant had to show a reasonable probability that, had a
motion to dismiss the indictment been filed, it would have
been granted). This he cannot do.
Notably, Lehr moved for a Rule 29 judgment of acquittal
and raised similar arguments regarding Fard’s scheme on three
separate occasions, and each time the motion was denied.
(Crim. Doc. # 138 at 20-21, 23, 70-71; Crim. Doc. # 114; Crim.
Doc. # 116). The Eleventh Circuit affirmed, holding that this
Court did not err in denying Fard’s motion for judgment of
acquittal. Given the merit of the charges against Fard, Fard
has not shown that a motion to dismiss the indictment would
14

have had a reasonable probability of being granted. See
Rollins v. United States, No. 08-cv-665-DRH, 2011 WL 3667522,
at *5 (S.D. Ill. Aug. 21, 2011) (finding that “[t]here [was]
no evidence to suggest a motion to dismiss the indictment
would have been meritorious at any stage of the trial”).
In short, Lehr was not ineffective for failing to file
a pre-trial motion to dismiss the indictment arguing that
Fard committed no crime and Fard was not prejudiced by such
failure. Such motion would have been meritless. See United
States

v.

Winfield,

960

F.2d

970,

974

(11th

Cir.

1992)

(stating that no ineffective assistance of counsel exists
when an attorney fails to preserve a meritless issue).
5. Rule 29 Motion
Fard also alleges that Lehr failed to argue the Rule 29
motion for judgment of acquittal adequately and effectively.
(Civ. Doc. # 2 at 27-29). Fard contends that Lehr failed to
argue in his Rule 29 motion that the commercialization goal
of the SBIR program was achieved, that the government got the
full benefit of the bargain, and that the purpose of the
program

was

not

undermined

by

Fard’s

conduct.

(Id.).

Additionally, Fard claims that Lehr failed to demonstrate
that

the

estimated

costs

were

15

not

binding

and

that

the

SBIR/STTR fixed price contracts were the same as regular fixed
price contracts. (Id. at 29).
First,

Lehr

raised

many

related

arguments

in

his

supplemental motion for judgment of acquittal, including that
Fard’s budget proposals were just estimates, that the G & A
rate used by Fard was not fraudulent, the government “got
what it paid for” and suffered no loss, and that there was
nothing in the government’s evidence that limited Fard’s
ability to spend the money. (Crim. Doc. # 114). Although Fard
takes issue with Lehr’s framing of arguments in the motion
for

judgment

of

acquittal,

Fard

falls

far

short

of

establishing that Lehr’s performance related to the Rule 29
motion was unreasonable or ineffective.
Regardless, Lehr’s alleged failure to adequately argue
the issues referred to above did not prejudice Fard because
the

Court

would

have

denied

the

motion

for

judgment

of

acquittal even if these arguments were raised as Fard wished.
See Johnson v. United States, No. 2:09-cv-647-JES-SPC, 2012
WL 2996593, at *5-6 (M.D. Fla. July 23, 2012) (holding that
there was no ineffective assistance of counsel when there was
no reasonable probability that a sufficiency of the evidence
challenge would have prevailed). The Eleventh Circuit agreed
with this Court that the government’s evidence was sufficient
16

to uphold Fard’s conviction. Fard, 805 F. App’x at 620. The
appellate court also determined that a jury could conclude
that

the

agencies

did

not

receive

the

benefit

of

their

bargain, and that Fard undermined the purpose of the programs.
Id. None of Fard’s arguments would have altered the Court’s
conclusion that Fard’s conviction should be upheld.
Fard has not established ineffective assistance by Lehr
regarding this or any other argument. His Motion is denied as
to his first ground.
B.

Ground Two

Next, Fard argues that his appellate counsel, Orlando do
Campo, was ineffective for failing to do three things: (1)
investigate
government’s

and

review

theory

of

the

record

prosecution

and
was

argue
wrong

that
and

the

Fard’s

conviction was based on false testimony; (2) raise the issue
that Fard’s conviction was in conflict with the Eleventh
Circuit Court’s holding in White v. United States, 765 F.2d
1469 (11th Cir. 1985); and (3) raise the issues of government
misconduct and deprivation of due process rights.
1. Investigation and Evidence
First, Fard alleges that do Campo was ineffective for
failing to investigate the record and failing to argue that
there was no scheme to defraud. (Civ. Doc. # 2 at 30). But,
17

as the government notes, the argument that there was no scheme
to defraud “was raised in his appeal” — along with arguments
that Fard made no misrepresentations and the evidence at trial
was insufficient to sustain his conviction — “and [was]
rejected by the Eleventh Circuit.” (Civ. Doc. # 11 at 16).
Fard’s allegation that do Campo failed to investigate the
record is conclusory and contradicted by the fact that do
Campo did brief multiple issues on appeal. See Edwards v.
Jackson, No. 3:08-cv-584-RJC, 2012 WL 137413, at *6 (W.D.N.C.
Jan. 18, 2012) (finding that petitioner’s allegations were
conclusory, as he failed to show how any further investigation
by

appellate

counsel

would

have

altered

the

outcome

of

petitioner’s appeal).
Even

if

appellate

counsel

had

not

investigated

and

raised this argument, appellate counsel is not required to
raise meritless issues on appeal. See Card v. Dugger, 911
F.2d 1494, 1520 (11th Cir. 1990) (“Counsel cannot be labeled
ineffective

for

failing

to

raise

issues

which

have

no

merit.”). Additionally, an appellate advocate does not have
to raise every nonfrivolous issue. Jones v. Barnes, 463 U.S.
745, 753-54 (1983). Rather, “effective advocates ‘winnow out’
weaker arguments even though the weaker arguments may be
meritorious.” Heath v. Jones, 941 F.2d 1126, 1131 (11th Cir.
18

1991). Even if appellate counsel is deficient, failure to
raise an argument on appeal is not prejudicial unless the
neglected argument would have a reasonable probability of
success on appeal. Id. at 1132.
But the arguments that the government’s theory was wrong
and that Fard’s conviction was based on false testimony lack
merit. Again, the government’s theory on Fard’s scheme to
defraud

was

correct,

and

Fard

has

not

proven

that

the

government’s witnesses provided false testimony.
2. Conflict with Eleventh Circuit Precedent
Regarding the second argument, Fard asserts that do
Campo was ineffective because he failed to argue that Fard’s
conviction conflicted with the Eleventh Circuit’s holding in
White. (Civ. Doc. # 2 at 35). This argument also lacks merit.
First,

as

the

government

points

out,

“[a]ppellate

counsel did cite to the White case [in] its brief, argued
White’s application to Dr. Fard’s case, and noted a key
distinction: White did not involve SBIR or STTR contracts,
the type involved in Dr. Fard’s case.” (Civ. Doc. # 11 at
16). Thus, Fard has failed to show ineffectiveness on the
part of do Campo.
Even if he had not addressed White on appeal, appellate
counsel is not required to raise meritless issues. Here, the
19

issue is meritless because White does not weigh against Fard’s
conviction. Fard contends that the “fixed price” contracts in
White are the same as the “fixed price” contracts in this
case. (Civ. Doc. # 2 at 35). However, unlike in White, the
“fixed price” contracts in this case are governed by SBIR/STTR
regulations.
3. Due Process Rights
Finally, Fard asserts that do Campo was ineffective
because

do

Campo

did

not

raise

the

issue

of

government

misconduct and deprivation of due process rights. (Civ. Doc.
# 2 at 30). Fard alleges that the government “engaged in
misconduct

that

rendered

[his]

trial

and

the

resulting

judgment of conviction and sentence fundamentally unfair.”
(Id. at 35). According to Fard, the government’s witnesses
presented false testimony and the government capitalized on
that false testimony. (Id. at 36).
Again, this argument fails. Fard has not shown that the
government

presented

previously,

these

false

witnesses’

testimony.
conclusion

As
that

mentioned
the

budget

estimates were binding was a reasonable interpretation of the
regulations governing Fard’s contracts. Additionally, a vast
amount

of

evidence

supports

the

conclusion

that

Fard

submitted a fraudulent G & A rate in his proposals. Fard also
20

has not shown that an argument based on alleged government
misconduct was stronger than the arguments appellate counsel
did make. See Caver v. Straub, 349 F.3d 340, 348 (6th Cir.
2003) (“As the Supreme Court has recently observed, it is
difficult

to

demonstrate

that

an

appellate

attorney

has

violated the performance prong where the attorney presents
one argument on appeal rather than another. In such cases,
the petitioner must demonstrate that the issue not presented
‘was clearly stronger than issues that counsel did present.’”
(quoting Smith v. Robbins, 528 U.S. 259, 289 (2000))).
The Court agrees with the government that “[t]here is
absolutely nothing in the trial or appellate record of this
case to suggest that Dr. Fard received anything but a fair
trial before a jury of his peers.” (Civ. Doc. # 11 at 17).
Thus, Fard has not established ineffective assistance of
counsel by appellate counsel.
The Motion is denied as to ground two.
IV.

Evidentiary Hearing
As the Court was able to readily determine that the claim

lacks merit, no evidentiary hearing is required. See 28 U.S.C.
§

2255(b)

(stating

that

an

evidentiary

hearing

is

not

necessary if “the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
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relief”); see also Hernandez v. United States, 778 F.3d 1230,
1232-33 (11th Cir. 2015)(“To establish that he is entitled to
an evidentiary hearing, Hernandez had to allege facts that
would prove that his counsel performed deficiently and that
he was prejudiced by his counsel’s deficient performance.”).
V.

Certificate of Appealability and Leave to Appeal In
Forma Pauperis Denied
The

Court

declines

to

issue

a

certificate

of

appealability because Fard has failed to make a substantial
showing of the denial of a constitutional right as required
by 28 U.S.C. § 2253(c)(2). Nor will the Court authorize Fard
to proceed on appeal in forma pauperis because such an appeal
would not be taken in good faith. See 28 U.S.C. § 1915(a)(3).
Fard shall be required to pay the full amount of the appellate
filing fee pursuant to Section 1915(b)(1) and (2).
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Akbar Ghaneh Fard’s pro se 28 U.S.C. § 2255 Motion to
Vacate, Set Aside, or Correct Sentence (Civ. Doc. # 1; Crim.
Doc. # 203) is DENIED. The Clerk is directed to enter judgment
for the United States of America and to close this case.

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DONE and ORDERED in Chambers in Tampa, Florida, this 2nd
day of August, 2022.

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