RAD v. UNITED STATES OF AMERICA

Filing 53

OPINION filed. Signed by Judge Anne E. Thompson on 9/7/2018. (mps)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

CHRISTOPHER RAD,

HONORABLE ANNE E. THOMPSON

Petitioner,
Civil Action
No. 15-7740 (AET)

v.
UNITED STATES OF AMERICA,

OPINION
Respondent.

RECE~VED
APPEARANCES:

SEP o7 2018

CHRISTOPHER RAD, Petitioner pro se
175 Pike Co. Blvd.
Lords Valley, PA 18428

AT 8:30

M

WILLIAM T. WALSH

CLERK

ALEXANDER EDWARD RAMEY, Esq.
UNITED STATES ATTORNEY'S OFFICE
402 East State Street
Room 430
Trenton, New Jersey 08608
Attorney for Respondent United States of America

THOMPSON, District Judge:
I.

INTRODUCTION
Christopher Rad ("Petitioner") moves to vacate, correct, or

set aside his federal sentence pursuant to 28 U.S.C.
(United States v.

Rad,

3: 15-cv-7740,

§

2255.

("hereinafter "15-7740")

ECF No. 1 at 37). Respondent United States of America
("Respondent") opposes the motion.

(15-7740, ECF No. 50). For

the reasons stated herein, Petitioner's motion is partially
denied, and no certificate of appealability will issue on the

denied claims.

However, for the reasons discussed infra, the

Court will conduct a hearing on two of Petitioner's ineffective
assistance of counsel claims.
II .

BACKGROUND

Petitioner was originally charged in the United States
District Court for the District of New Jersey, in a one-count
indictment to a conspiracy offense.
3:2011-cr-161,

(United States v. Rad,

(hereinafter "11-cr-161")

(D.N.J. ECF No. 1.))

Two of Petitioner's co-conspirators, James Bragg and Doyle Scott
Elliott, were charged and convicted in separate proceedings in
the District of New Jersey.

Petitioner was subsequently charged

in a nine-count superseding indictment to two conspiracy
offenses and seven electronic mail-related fraud offenses.

(11-

cr-161, ECF No. 16.)
Petitioner's conduct related to securities fraud by
employing the use of misleading spam 1 emails touting stocks with
the objective of selling the stocks to the public at
artificially inflated prices.

Petitioner was considered the

"middleman between stock promoters seeking to pump shares of
stock, and computer experts located inside and outside of the
United States who used various means, including spam e-mail

1

Unsolicited bulk commercial e-mail.

6) •

2

(11-cr-161, ECF No. 1 at

campaigns, botnets 2 , and hacking to pump the stock."

( l l-cr-16:1,

ECF No. 1 at 1) (internal quotations omitted).
On November 30, 2012, a jury found Petitioner guilty on six
counts:

(1) one count of conspiracy to commit securities fraud,

false header spamming, and/or false registration spamming in
violation of 18 U.S.C. § 371;

(2) one count of conspiracy to

commit unauthorized access spamming in violation of 18 U.S.C. §
371;

(3) and four counts of unauthorized access spamming; aiding

and abetting, in violation of 18 U.S.C.
161, ECF No. 68).

§

1037 (a) (1).

(11-cr-

Petitioner was found not guilty of three

counts of false registration spamming; aiding and abetting in
violation of 18 U.S.C. § 1037 (a) (4) and 2.

(Id.

at 1-2).

Petitioner appeared for sentencing on May 13, 2013.
cr-161, ECF No. 104).

(11-

The Probation Office calculated the

offense level to be 32 and the criminal history category as I,
resulting in a guideline range of 121-151 months.

(PSR

~~~

120,

123, 150). The Court heard argument regarding the recommended
upward departures as well as the government's recommendation for
a three-level enhancement based on Petitioner's managerial role
in the offense.

(11-cr-161, ECF No. 104 at 6-33).

counsel objected to the calculations.

Petitioner's

First, counsel

A network of computers infected with malicious software that
allowed a third party to control the entire computer network
without the knowledge or consent of the computer owners.
(11cr-161, ECF No. 1 at 6).

2

3

unsuccessfully argued that the specific offense characteristics
that resulted in an eighteen-level offense increase were
premised on an incorrect loss calculation of $2.8 million.
at 15-20).

(.Id.

Petitioner's counsel next successfully objected to

the probation office's two-level upward adjustment
recommendation based on the offense having involved electronic
email addresses.

(Id. at 20-27).

Finally, Petitioner's counsel

unsuccessfully objected to the government's three-level upward
departure recommendation for Petitioner's managerial role in the
offense.

(Id. at 27-33).

The Court ultimately granted a six-level downward variance
resulting in an offense level of 25.

(Id. at 65).

The Court

concluded a high end-guideline sentence was appropriate and
sentenced Petitioner to 71 months imprisoriment followed by five
years of supervised release.

(Id. at 65-66) .

Petitioner appealed to the Third Circuit arguing that "the
District Court denied him a fair trial by misinterpreting the
Controlling the Assault of Non-Solicited Pornography and
Marketing Act("CAN-SPAM")and preventing his counsel from
properly defending his case."
App'x 148; 149 (3d Cir. 2014).

United States v. Rad, 559 F.
The Court of Appeals rejected

this argument and affirmed the sentence.

Id. at 151.

Petitioner thereafter filed this § 2255 motion.
No. 1).

(15-7740, ECF

Additionally, Petitioner filed a series of other
4

motions in his criminal case, all of which were summarily
dismissed on October 25, 2017.

(ll-cr-161, ECF No. 133).

The

Court subsequently dismissed Petitioner's motion for partial
summary judgment on December 13, 2017.

(15-7740, ECF No. 32).

Moreover, Petitioner's initial§ 2255 filing was amended on
January 18, 2018.

(15-7740, ECF No. 37).

When deciding the motion, the Court considered all of
Petitioner's filings which are the: original petition filed on
October 28, 2015 (15-7740, ECF No. l); supplement to the motion
to vacate/set aside/correct sentence filed on November 9, 2015
(15-7740, ECF No. 4); an amended petition filed on January 18,
2018 (15-7740, ECF No. 37); "Petitioner's Habeas Petition in
Lieu of Government's Answer" filed on May 21, 2018
No. 45); a traverse filed on July 18, 2018

(15-7740, ECF

(15-7740, ECF No.

51); and "Submission to Court of Letter to Mr. Ramey" filed on
August 1, 2018.

(15-7740, ECF No. 52).

Respondent filed an

answer asserting that the claims should be denied on the merits
on June 29, 2018.

(15-7740, ECF Nos. 50).

Petitioner raises six grounds for this Court's
consideration:

(1) trial counsel was ineffective for "failing to

impeach the knowing use of false, perjured and conflicting
testimony";

(2) prosecutor's failure to disclose potential

impeachment evidence against its witness constituted misconduct;
(3)

(a) trial counsel was ineffective for failing to advance a
5

meritorious defense and (b) for failing to advise Petitioner of
his potential sentence exposure if convicted at trial;

(4) trial

counsel was ineffective for failing to investigate government
witness, James Bragg's criminal history;

(5) trial counsel was

ineffective for failing to "properly move for judgement of
acquittal" on Counts Five through Nine; and (6) trial counsel
was ineffective for failing to "properly move for judgment of
acquittal" on Count One.
For the following reasons, the Court will order an
evidentiary hearing on Claim 3 that raises ineffective
assistance due to trial counsel's failure to advance a sound
defense strategy and failure to advise Petitioner of his
potential sentence exposure but will deny relief on the
remaining claims Petitioner has

raised~

III. DISCUSSION

Section 2255 provides in relevant part that:
[a] prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be
released upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United
States ... may move the court which imposed the sentence
to vacate, set aside or correct the sentence.
28 U.S.C.

§

hearing on a

2255(a).
§

A district court must hold an evidentiary

2255 motion unless the "motion and the files and

records of the case conclusively show" that the movant is not
entitled to relief. 28 U.S.C. § 2255(b); see also United States

6

v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005).

Here, the record

conclusively demonstrates that Petitioner is not entitled to
relief on all but one of his claims because his arguments lack
merit.
A. Prosecutorial Misconduct

Petitioner submits that the prosecution's failure to
disclose government witness James Bragg's plea and sentencing
transcripts constitutes misconduct under Brady v. Maryland, 373
U.S. 83 (1963).

Additionally, Petitioner argues in a separate

claim that the government's knowing use of Bragg's perjured
testimony constituted misconduct.

Although Petitioner raises

this second argument within the context of an ineffective
assistance claim, the gravamen of Petitioner's claim is that the
government's misconduct and his counsel's subsequent purported
failure to discredit Bragg's inconsistent statements violated
his constitutional rights.

Petitioner also raises an additional

argument that portions of FBI Agent Laurie Allen's trial
testimony were untrue and that this could have been impeached
had the government provided Petitioner with the purported
relevant records to support her testimony.

(15-7740, ECF No. 52

at 2-3).
First, allegations involving Brady, 373 U.S. 83 are analyzed
as a type of prosecutorial misconduct, which requires that certain
elements be met.

See Banks v. Dretke,

7

540 U.S.

668,

671

(2004).

In that regard,
withheld

Petitioner "must show that:

evidence,

either

evidence was favorable,
impeachment value;

and

willfully

or

the government

inadvertently;

( 2)

the

either because it was exculpatory or of
(3)

the withheld evidence was material."

Lambert v. Blackwell, 387 F.3d 210, 252

omitted) .

( 1)

"[E]vidence is

(3d Cir. 2004)

(citations

'material' within the meaning of Brady

when there is a reasonable probability that, had the evidence been
disclosed, the result of the proceeding would have been different."
Cone v. Bell, 556 U.S. 449, 469-70 (2009).

When

assessing

unequivocally

Brady

rejected

violations,

any

distinction

evidence and exculpatory evidence.
U.S.

667,

676

(1985).

the

Supreme
between

Court

has

impeachment

United States v. Bagley,

473

"[A] constitutional error occurs, and the

conviction must be reversed, only if the evidence is material in
the sense that its suppression undermines con£idence in the outcome
of the trial."
"recognize[s]

Id.

at

678.

Additionally,

the

Third Circuit

that the Bagley inquiry requires consideration of

the totality of the circumstances, including possible effects of
non-disclosure on the defense's trial preparation."
v. Perdomo, 929 F.2d 967, 971 (3d Cir. 1991)

United States

(citation omitted).

Allegations involving the prosecution's knowing use of
perjured testimony is governed by the rule articulated by the
Supreme Court in Napue v. Illinois, 360 U.S. 264

(1959).

the Court held that the state violates the Fourteenth
8

There

Amendment's due process protection when it "knowingly presents
or fails to correct false testimony in a criminal proceeding."
Id. at 269.

Moreover, "[a] conviction must be set aside even if

the false testimony goes only to a witness's credibility rather
than the defendant's guilt."

Haskell v. Superintendent, 866

F.3d 139, 146 (3d Cir. 2017).
Petitioner must show that:
perjury,

To establish such a claim,

(1) "[the witness] committed

(2) the [prosecution] knew or should have known that

the testimony was false,

(3) the false testimony was not

corrected, and (4) there is a reasonable likelihood that the
perjured testimony could have affected the judgment of the
jury."

Id.

(citation omitted).

1. Prosecution's Failure to Disclose Bragg's Prior Case
Proceeding Transcripts and Plea Agreement
James Bragg, an internet company proprietor who provided
spamming services to Petitioner, was eventually charged and
convicted as a co-conspirator in the United States District
Court for the District of New Jersey.

In 2009, Bragg, who was

then awaiting sentencing for an unrelated offense in Michigan,
agreed to cooperate with the government in their investigation
against Petitioner.

Bragg was later called by the government to

testify at Petitioner's trial.

Bragg described the start of his

business relationship with Petitioner and the nature of the
service he provided.

Bragg testified that he was charged and

9

awaiting_ the disposition of a case being prosecuted in the
Eastern District of Michigan when he began working with
Petitioner.

He also testified that he was awaiting sentencing

in the.current conspiracy prosecution pending against him in the
District of New Jersey and volunteered to cooperate with the
government in their case against the Petitioner.

(11-cr-161,

ECF No. 81 at 35, 138-40).
Petitioner argues that Bragg's trial testimony was
inconsistent with statements he provided at his 2009 debrief
with the Assistant United States Attorney ("AUSA") prosecuting
Petitioner's case in New Jersey; with Bragg's statements to the
Michigan and New Jersey sentencing courts; and with his answers
to Petitioner's interrogatories dated four years after
Petitioner's trial.

(15-7740, ECF No. 37-1 at 2-3).

Petitioner first asserts that Bragg's trial testimony
included false statements that he was not in prison for using
proxies, and he was not working with the government before his
Michigan sentence.

(Id. at 2).

a. Bragg's Testimony About His Cooperation
At Petitioner's trial, the following colloquy between Bragg
and the AUSA took place:
Q:
Did you get sentenced as part of the
Ralsky case?
A:
Yes, I did.
Q:
What were you sentenced to?
A: A year and a day.

10

Q:
Did you do any cooporation where you
were given credit for cooperation as part of
the Ralsky case?
A:
No.
Q:
You were sentenced to a year and a day.
Did you have to serve a sentence as part of
that case?
A:
Yes, I did.
Q:
When was the sentence, if you remember,
the exact dates or approximate dates, did
you serve with respect to Alan Ralsky?
A:
From the end of 2008, roughly end of
2008 until toward the end of 2009, I
believe. I'm sorry, that's incorrect.
2009,
I was released in 2010, in May of 2010.
Q: 2009 to 2010 was the date of your
sentence?
A:
Yes.
Q: Before that sentence, were you working
with the Government?
A:
No, I was not.
(11-cr-161, ECF No. 81 at 104-105).
Petitioner maintains that Bragg's testimony about his prior
government cooperation and his prior conviction were

untruthful~

First, with respect to Bragg's testimony about the tenure of his
government cooperation, Bragg's testimony about when his
cooperation started is not exactly untrue.

As previously

quoted, the prosecutor posed the question as follows:
that sentence, were you working with the Government?"

~Before

At the

time of Bragg's interview with federal prosecutors on August 6,
2009, he was incarcerated at the Federal Bureau of Prisons
Detention Center in Milan, Michigan, awaiting sentencing.
7740, ECF 37-2 at 26).

(15-

Bragg met with federal prosecutors

during this period of incarceration to discuss his activities
11

with Petitioner.

(Id.)

Petitioner refers to the government's

trial exhibit, FBI Form 302, memorializing their August 6, 2009,
debrief with Bragg as well as the cooperation agreement dated
October 24, 2009, to support his argument that Bragg's testimony
that he did not cooperate prior to the start of his sentence
constituted perjury.
Petitioner also refers to Bragg's answers to Petitioner's
interrogatories filed in 2016.

There, Bragg does not contradict

his trial testimony by any means.

In fact, his answers reflect

his failure to recall the exact start of his cooperation.
Moreover, despite Petitioner's insistence that Bragg's answer to
the interrogatory further supports that Bragg's trial testimony
was not truthful; Bragg's interrogatory response that his
debrief while at the Milan Detention Center only pertained to
Berg's activities, could also just be a result of Bragg's
difficulty recalling the details of a then seven-year old
meeting.
Interrogatory No. 12
You answered that you "never talk to anyone
about this case until I was in prison." By
prison do you mean the prison that you
served your sentence in, and NOT the pretrial holding center in Michigan?
ANSWER:
Do not remember exactly when my
first talk was.
But it was in Milan Prison
in Michigan, and these talks did not involve
you only your partner Berg.

12

Please state the location of the prison that
you served your sentence in.
ANSWER:

Michigan and Arizona.

Do you understand that your Michigan
sentence did not begin until a£ter you were
sentenced on 11/24/2009, and that you were
retroactively credited the time you spent in
the pre-trial holding/detention center?
ANSWER:
Yes but due to the time passed I
can not give you exact dates as I have no
record of this.
(15-7740, ECF 37-2 at 10).
The record supports Petitioner's submission that Bragg was
not sentenced in the Eastern District of Michigan until November
24, 2009.

Although Bragg's sentence did not officially begin

until his sentence was imposed, Bragg was detained pending
sentencing in a federal detention facility at the time of the
debrief and subsequent official cooperation agreement.

Taken

within this context, Bragg's testimony at Petitioner's trial
does not suggest dishonesty but rather that he conflated the
start of his sentence with the start of any time which he spent
in custody in connection with his Michigan offense.
Nonetheless, Petitioner maintains in his traverse that Bragg's
use of the word "sentence" should be taken in the literal sense
and should demonstrate Bragg's willingness to commit perjury at
Petitioner's trial.

(15-7740, ECF No. 51 at 12-13).

13

Bragg's testimony about when his government cooperation
commenced is not inconsistent or indicative of dishonesty, when
assessed within context.

Moreover, Petitioner has not

established how this truthful testimony renders the government
responsible for using purportedly perjured testimony.
Petitioner has not met the constitutional standards set in Napue
and its progeny.

Consequently, Petitioner has not established

that a Brady or Napue violation occurred.
b. Bragg's Testimony About Prior Incarceration for
Using Proxies
Petitioner also maintains that Bragg's testimony about his
prior conviction is inconsistent with Bragg's 2009 conviction in
the Eastern District of Michigan and with his statements during
the 2009 debrief.

In 2009, Bragg pled guilty to, among other

things, bulk e-mailing using proxy 3 computers in violation of 18
U.S.C. § 1037(a) (2).

(15-7740, ECF No. 37-2 at 32).

The relevant portion of the statute provides, in part, the
following:

"Proxy computers could be used by spammers to camouflage the
originating IP address of a spammer's e-mail communication
because the real IP address of the spammer would be replaced in
the header with the IP address of the proxy computers making it
difficult for recipients, Internet providers, or law enforcement
to trace the spam e-mail through proxy computers to hide their
identity, avoid being detected, and evade anti-spam filters and
other spam blocking techniques."
(ll-cr-161, ECF No. 1 at 7).
3

14

(a)IN GENERAL. -Whoever, in or affecting interstate or foreign
commerce, knowingly(1)

Accesses a protected computer with6ut authorization, and
intentionally initiates the transmission of multiple
commercial electronic mail messages from or through such
computer,

(2)

Uses a protected computer to relay or retransmit multiple
commercial electronic mail messages, with the intent to
deceive or mislead recipients, or any Internet access
service, as to the origin of such messages,
or conspires to do so, shall be punished as provided in
subsection (b) .

18

u.s.c.

§

1037.

On cross-examination, the following colloquy between Bragg
and defense counsel took place:

Q: Now, previously in 2008, wasn't it your
understanding that Mr. Rad would not use
proxies then?
A:
That's not my understanding because he
worked with Breg and Breg, it was well known
that he used proxies.
Q:
Let me ask you this:
With respect
because you're not Mr. Breg and Mr. Breg is
not on the stand. With respect to your, was
it your understanding that Mr. Rad would not
work with proxies?
A:
No, it was not my understanding.
Q: Okay. Was it your understanding that Mr.
Rad did not want you to use proxies in his
e-mail campaigns?
A:
I don't recall it ever being discussed.

15

Well, you did tell him that you were 100
percent legit, didn't you?
A:
Yes, I did, on Skype.
Q:
And illegal proxies would not be 100
percent legit, would it?
A:
Proxies are not botnets.
You can have a
[sic] legal proxies, there are such things
as legal proxies, not a botnet. The proxies
I'm referring to here would be illegal
proxies or botnet, yes.
Q:
So in this case, you were suggesting
using illegal proxies?
A:
Yes.
Q:
Even though you just been to prison for
that?
A:
I wasn't in prison for using proxies.
I
was in prison for spamming and security
fraud.
Q:

(11-cr-161, ECF 82 at 90-91).
Respondents submit that Petitioner's claim takes Bragg's
testimony about proxies "completely out of context."
ECF No. 50 at 16.)

This Court agrees.

(15-7740,

Respondents refer to

Rad's own trial testimony where he stressed the difference
between legal and illegal use of proxies.
At trial, Petitioner took the witness stand in his defense
and provided the following testimony:
What equipment do you use or did you use
during that period?
Q:

A: Actually I have Tl lines run to my house
with my own IPs.
I have what's called a
proxy service, a legal proxy service that
you can send the mail through and I actually
have about three or four other mailers, mail
servers that are allowed to send mail from
my mailing business basically.

16

Q: What do you mean by a "legal proxy
service"?
MR. PAK:

Objection, your Honor.

The COURT:

Overruled.

A:
So if you have an IP and this is another
IP, when you mail through this IP, it takes
off your information and puts the other one
on, okay.
So it can be used to hide.
When
you use that without permission, it's not
legal.
(11-cr-161, ECF No. 86 at 129).
Petitioner's own contrasting definitions of proxies
undermines his argument that Bragg's testimony was dishonest.
According to Petitioner's description of the different types of
proxies, Bragg's testimony seemed to establish that although he
may have used proxies, he was not sentenced for using unlawful
proxies.
Petitioner next argues that Bragg's trial testimony about
his prior conviction is inconsistent with the sentencing
proceedings in the United States District Court for the Eastern
District of Michigan.

Petitioner provides portions of the

sentencing transcript to support this premise, however nothing
in the exhibit indicates that Bragg was convicted of using
unlawful proxies.

Nonetheless, Respondents delineate the

distinguishing elements of 18 U.S.C. §§ 1037 (a) (1) and (a) (2),
the latter section which Bragg was convicted of in Michigan.

17

Pursuant to his plea agreement in the
Michigan case, Bragg pleaded guilty to one
substantive violation of the CAN-SPAM Act
under 18 U.S. C. Section 1037 (a) (2), and a
number of related conspiracy charges.
Section 1037 (a) (2) punishes the use of "a
protected computer to relay or retransmit
multiple commercial messages, with the
intent to deceive or mislead recipients, or
any Internet access service as to the origin
of such messages." Thus, although a
violation of this provision involves the use
of proxies, it is not established
unless the proxies are used for an otherwise
unlawful end.
This contrasts with 18 U.S.C.
1037 (a) (1), which explicitly punishes the
use of a computer as a proxy without
authorization.
In other words, under
Section 1037(a) (1), the end of sending the
messages is not important: the act of using
the computer as a proxy is the violation.
(15-7740, ECF No. 50 at 19).
In other words, one subsection of the statute punishes the
use of proxies where another subsection punishes the use of the
computer.
In his traverse, Petitioner maintains that notwithstanding
the different elements between the two sections of the statute,
it "makes little difference as§ 1037(a) (2) clearly punishes
using proxies, and Bragg testified that he was not in prison for
using proxies."

(15-7740, ECF No. 51 at 7)

(internal quotations

omitted) .
Finally, Petitioner argues that Bragg's trial testimony
about not being sentenced for using illegal proxies is
inconsistent with his statements at his 2010 New Jersey guilty
18

plea entry hearing where he purportedly admitted to using
botnets.

(15-7740, ECF No. 45 at 6-7).

At that hearing, Bragg

admitted to working with third parties who used botnets to
distribute spam emails.

Bragg's comments at the guilty plea

hearing are not necessarily inconsistent with his comments at
Petitioner's trial.

Nonetheless, Petitioner asserts that these

two statements demonstrate Bragg's incredible testimony at his
trial.
At his 2010 guilty plea hearing, Bragg engaged in the
following colloquy with the judge:
Q:
Also in furtherance of the conspiracy,
did you retain third parties, including a
computer hacker and spammer located in
Russia with the initials B.T. to further
disseminate spam e-mails touting the stocks?
A:
Yes, Sir.
Q:
At the time of the conspiracy, were you
aware that B.T. used an illegal botnet, that
is an illegal network of computers infected
with malicious software that allowed him to
control the computer network without the
computers' owners to distribute spam emails?
A:
Yes.
(15-7740, ECF No. 1-4 at 50-51).
Two years later at Petitioner's trial, Bragg testified to
the following:
Q:
You did not use botnets in distribution
of the mail 'did you?
A:
No, I did not.
Q:
And you never represented to Mr. Rad
that you would do so, did you?
A: No, I did not.

19

Q:
Okay. And th~t's because that would be
illegal, correct?
A:
That is - - let me answer this followed
by the question.
Can you re-ask that
questions a little differently?
Q:
You did not use any botnets in the
distribution of the ema~ls because that is
illegal, correct?
A:
I didn't use it because I think it's
unethical to use hacked computers to send email.
That's why I did not do it.

(11-cr-161, ECF No. 82 at 36).
Bragg's statements expressing his own disinterest in
personally using botnets is not inconsistent with using third
parties to do so.

Once again, Petitioner takes a literal

reading of Bragg's comments to support his unfounded perjury
allegation.
Petitioner has not established how Bragg's statements about
his use of unlawful proxies have been inconsistent.
Petitioner's argument that the actual elements of Bragg's 2009
Michigan conviction would serve to better discredit Bragg are
belied by the record.

The record reflects that Bragg's

testimony established that he had a lengthy history of engaging
in computer-related crimes.

Bragg repeatedly testified about

other criminal cases, including the one that was currently
pending in the District of New Jersey, and periods of
incarceration in correctional facilities as a result of these
cases.

The transcript of his online conversations with

Petitioner, which were admitted into evidence, also indicated
20

that both men discussed one of Bragg's then-pending criminal
cases.

Bragg even testified about losing civil actions taken

against him by America Online for similar behavior.
v. Wilson,

See Hollman

158 F.3d 177, 181-82 (3d Cir. 1998) (holding that

there was no Brady violation as a result of Government's failure
to disclose witness's criminal record because the jury was made
aware of his criminal record and the additional impeachment
evidence of his crimen f alsi convictions "would not have put the
whole case in such a different light as to undermine our
confidence in the verdict.")

Finally, these statements do not

establish that Bragg perjured himself at Petitioner's trial and
therefore cannot amount to a meritorious Napue claim against the
prosecution.

Bragg testified that he was not convicted for

using proxies in his Michigan case.

The prosecution would have

had no basis to attempt to correct this testimony, because as
Respondents explain in their Answer, Bragg's characterization of
his count of conviction was consistent with the letter of the
law under 18 U.S.C.

§

1037(a) (2).

c. Bragg's inconsistent statements about
working with the petitioner and about not
wanting to use computers
Petitioner also cites to a series of statements made by
Bragg either at his Michigan sentencing hearing or at his 2009
debrief.

Petitioner asserts that these statements constitute

Brady evidence and the prosecution should have made them
21

available before his trial for defense counsel to successfully
impeach Bragg's credibility.
First, Petitioner cites to Bragg's counsel's statement to
the Michigan sentencing court that he "wants nothing to do with
computers for the balance of his life."
4).

(15-7740, ECF 37-1 at

According to Petitioner, this statement contradicts Bragg's

testimony three years later at Petitioner's trial, where he
described himself as a "computer programmer."

Id.

Even if this

statement from Bragg's lawyer was to be literally interpreted,
Bragg's return to the computer programming field could arguably
be a function of necessity rather than a show of his dishonesty
to the sentencing court.

Moreover, nothing about the computer

programming field is inherently illegal and Petitioner has
failed to demonstrate how this benign comment would have
supported his defense.
Next, Petitioner refers to another one of Bragg's
statements at .his 2009 Michigan sentencing hearing to illustrate
more of Bragg's purportedly dishonest testimony at Petitioner's
trial.

At the sentencing hearing, Bragg along with his defense

counsel engaged in a colloquy with the sentencing judge about
his then-pending case in New Jersey.

Although Petitioner was

not explicitly named, Bragg references the New Jersey case and
denies having worked with "him."

Petitioner argues that Bragg's

denying having worked with him in 2009 was emblematic of his
22

dishonesty both at his Michigan sentencing proceeding and at
Petitioner's trial.
Petitioner's as well as Bragg's charging documents in the
District of New Jersey indicate that multiple people were
involved in the conspiracy, some of which were identified by
name, others by their initials and some that were unidentified.
(11-cr-161, PSR

~

1, ECF No. 1).

Two of those several

individuals who were eventually charged in the District of New
Jersey, were Petitioner and Doyle Scott Elliott.

In light of

the multiplicity of individuals involved in the underlying
conspiracy that resulted in the charges in the District of New
Jersey, Bragg's statements to the Michigan sentencing court are
too vague to determine whether they rise to the level of being
false statements.

(11-cr-161, PSR

~

1).

Petitioner has not demonstrated how any of the
aforementioned statements were actually inconsistent.
Petitioner attempts to support his premise that Bragg's
testimony at Petitioner's trial was

perjur~d

by repeatedly

taking Bragg's pre-trial and post-trial statements out of
context, however he has not established how he was prejudiced by
these statements as they were not material for Brady purposes.
See United States v. Walker,

657 F.3d 160, 188

(3d Cir. 2011)

("it is only those new avenues of impeachment that sufficiently
undermine confidence in the verdict that will make out a
23

successful Brady claim.").

Accordingly, because Petitioner has

not established that Bragg's statements were untruth£ul, his
Napue claim fails as well.

d. Prosecution's Failure to Disclose Records to Support
Agent Allen's Testimony
Petitioner next claims that the prosecution failed to
disclose evidence relied on by FBI Agent Laurie Allen, who
testified for the government at Petitioner's trial.

More

specifically, Petitioner contends that Allen's testimony did not
support how "she knew of Bragg."

(15-7740, ECF No. 52 at 2).

Allen testified about the series of ways that she became
familiar with Bragg including emails, through payments made from
Petitioner to Bragg and by E-Gold records,

4

which were admitted

into the trial record as Government exhibit G902.

(Id. at 3)

~

Petitioner argues that the only documentary evidence which
the government provided that may be able to corroborate Allen's
testimony of how she knew of Bragg were illegible "e-gold
records."

Petitioner maintains that the illegible records,

coupled with the rest of Allen's uncorroborated testimony,
indicate that Agent Allen was not truthful at Petitioner's
trial.

The record, however, reflects Agent Allen's trial

testimony that she met Bragg at a 2009 interview in an attempt

Allen testified that E-Gold is an online money remitter service
that uses digital currency.
(ll-cr-361, ECF No. 85 at 129).

4

24

to gain his cooperation with the FBI.

(11-cr-161, ECF No. 85 at

143) .
Next, Petitioner alleges that Allen's testimony about
Trevor Ruiz's existence was false.

(15-7740, ECF No. 52 at 3).

James Bragg testified on cross-examination that he was not the
user behind the Skype screenname "trevman" after trial counsel
showed him a Skype dialogue transcript including three users,
one of which was "trevman".

(11-cr-161, ECF No. 81 at 156-57).

There was no further line of questioning on this subject.

Agent

Allen later testified that the screenname "treveman187" was
associated with a Trevor Ruiz who resides in Canada.
ECF No. 85 at 146-47).

(11-161,

The prosecution subsequently asked Agent

Allen whether "trevman187" was James Bragg, to which she replied
in the negative.

(Id.)

Petitioner argues that his inability to corroborate Allen's
testimony about "trevman187"'s actual identity is a result of
her testimony being fabricated.

He bases this claim on his

independent search for an individual in Canada named Trevor Ruiz
that did not yield any positive results.

(Id.)

Petitioner does not provide any basis to support the claim
that Allen committed perjury on the stand.

He has not provided

any evidence that is contrary to Allen's testimony and he has
not demonstrated how her initial knowledge of James Bragg or
Trevor Ruiz's existence is material.
25

Moreover, he certainly has

not provided any basis to support his claim that the government
was aware of this purported perjury.

His bald assertions of

suppressed Brady evidence and perjury are not supported by the
record and not meritorious.

Therefore, Petitioner is denied

relief with respect to these claims.
Accordingly, all of Petitioner's Brady and Napue claims are
denied.

B. Ineffective Assistance of Trial Counsel
Grounds One, Three, Four, Five and Six concern Petitioner's
trial counsel's representation.

The United States Supreme Court

has set forth the standard by which courts must evaluate claims
of ineffective assistance of counsel in Strickland v.

Washington,

466 U.S. 668

(1984).

"The first part of the Strickland test requires 'showing that
counsel made errors so serious that counsel was not functioning as
the

'counsel'

guaranteed the defendant by the Sixth Amendment.'"

United States v.
Strickland,

Bui,

466 U.S.

795 F.3d 363,
at 687).

366

(3d Cir.

2015)

(quoting

To satisfy the second "prejudice"

prong, Petitioner must show that "there is a reasonable probability
that, but for counsel's unprofessional errors,
proceeding would have been different.

the result of the

A reasonable probability is

a probability sufficient to undermine confidence in the outcome."

Strickland, 466 U.S. at 694.

26

Counsel's

performance

is

deficient

if

his

representation

falls "below an objective standard of reasonableness" or outside
of the "wide range of professionally competent assistance."
at

690.

In examining the

scrutiny of counsel's
Id.

at 689.

question

of

performance must

In addition,

deficiency,
be

Id.

" [ j] udicial

highly deferential."

judges must consider the facts of the

case at the time of counsel's conduct and must make every effort
to escape what the Strickland court referred to as the "distorting
effects of hindsight."

Id.

The petitioner bears the burden of

showing that counsel's challenged action was not sound strategy.

Kimmelman v. Morrison,
defendant

must

show

counsel's errors,
different.
i.

477 U.S.
a

365,

reasonable

381

(1986).

probability

Furthermore, a
that,

but

for

the result of the proceeding would have been

Id. at 694.
Trial Counsel's Failure to Adequately Investigate and
Impeach the Government's Witness Was Ineffective
Assistance

Petitioner argues trial counsel rendered ineffective
assistance when he failed to investigate James Bragg's criminal
history and "impeach the knowing use of false, perjured and
conflicting testimony."

(15-7740, ECF No. 37 at 5).

Petitioner

raises these two ineffective assistance claims related to James
Bragg in grounds one and four of his petition.
37 at 5, 9).

27

(55-740, ECF No.

As discussed in the previous section, Petitioner has not
demonstrated that Bragg's trial testimony was inconsistent with
his prior statements nor that it was perjured.
Section A.

See supra

Therefore, he is not entitled to relief.

Furthermore, Petitioner cannot establish that his counsel's
performance fell below an objective standard of reasonableness
as the record conclusively demonstrates trial counsel conducted
a thorough cross examination of James Bragg.

Obtaining Bragg's

criminal history would not have undermined his testimony because
despite Petitioner's claim that Bragg was previously convicted
and sentenced for using illegal proxies, the record proves
otherwise.

As explained in the previous section, Bragg's

Michigan conviction was not for the unlawful use of proxies.
Moreover, Bragg consistently denied using illegal proxies
including at his 2009 debrief, the memorialization of which
Petitioner cites to multiple times throughout his Petition.
(15-7740, ECF No. 1-4 at 24).

Petitioner is not entitled to relief under

§

2255 on these

grounds.
ii.

Counsel's Failure to Properly Advise Petitioner of
Whether a Valid Defense Exists to 15 U.S.C. § 7702(17)
and Subsequent Failure to Communicate Potential
Sentencing Exposure if Convicted at Trial was
lnef fective Assistance
Counsel's Failure to Advise of a Valid Defense

28

Petitioner argues that trial counsel rendered ineffective
assistance during the plea negotiation process by misadvising
him as to the availability of a defense under 15 U.S.C. §
7702(17).

(15-7740, ECF No. 1 at 4).

Petitioner's claim on direct appeal was that the trial
court erroneously prevented his counsel from pursuing the "optin" defense to the CAN-SPAM Act violation.
150.

Rad, 559 F. App'x at

As the Third Circuit noted on Petitioner's direct appeal,

the trial court's denial of Petitioner's interpretation of the
CAN-SPAM Act's "transactional or relationship" message
exception, was an appropriate ruling.
51.

Rad, 559 F. App'x at 150-

Moreover, the Third Circuit characterized the defense as

one "that was lacking in support, as a matter of law, so as to
be misleading to the jury."

Id. at 151.

Petitioner now argues that trial counsel repeatedly advised
him that the emails in question's "transactional" nature fell
under the exemptions to the CAN-SPAM Act.
at 10).

(15~7740,

ECF No. 1-5

Trial counsel, Francis Williams Montenegro, Esq., filed

an affidavit in response to this ineffective assistance claim,
where he unequivocally denied that he "guaranteed or promised"
that Petitioner would prevail at trial.

(15-7740, ECF No. 12-11

at 3) .
Petitioner argues that the failed defense strategy
motivated his decision to reject a plea offer.
29

The Sixth

Amendment right to counsel extends to the plea-bargaining
process, Lafler v. Cooper, 132 S. Ct. 1376, 1384

(2012), and

claims arising out the plea process are governed by the two-part
Strickland test.

Hill v. Lockhart, 474 U.S. 52, 57

(1985).

The record reflects that Petitioner became aware of the
trial court's rejection of the CAN-SPAM Act exemption after
trial had commenced.

(15-7740, ECF No. 12-3 at 32-36).

On the

second day of Petitioner's trial, the trial court gave its
reasoned decision for why Petitioner's interpretation of the
CAN-SPAM Act was invalid.

Moreover, it instructed the jury to

disregard any opening arguments or testimony about a possible
"opt-in" exemption to the statute.

(11-cr-161, ECF No. 82 at

10-11).
Almost immediately after the court's decision, trial
counsel requested a brief recess to convey the contents of a
conversation it just had with the prosecution, to the
Petitioner, which the court agreed to.

(Id.

at 9).

The record also indicates that shortly after the trial
court's refusal to allow the exemption defense, the prosecution
asked the trial court to engage in a second colloquy with
Petitioner confirming that plea negotiations occurred and that
Petitioner articulated that he knowingly rejected the
government's plea offers.

The record is unclear about whether

the negotiations referenced in the colloquy include anv offer
30

extended after the court's decision to prohibit the exemption
defense.
At this juncture, the Court needs further information in
order to make a determination that counsel's representation fell
below an objective standard of reasonableness pursuant to
Strickland.

The Court will hear evidence about whether

counsel's failed defense strategy constituted deficient
performance and what if any prejudice Petitioner suffered as a
result of purportedly rejecting a plea offer on this reliance.
See United States v.

Tolliver,

800 F.3d 138, 142 (3d Cir. 2015)

("[W]here there are disputes of material fact, the first step is
to hold an evidentiary hearing.")

Therefore, an evidentiary

hearing on this claim will be ordered.

Petitioner will be

appointed counsel to represent him at this hearing.
Counsel's Failure to Advise Petitioner of the Potential
Sentence Exposure
Petitioner also claims that trial counsel "failed to
communicate any information relating to Movant's potential
sentencing exposure if convicted at trial versus the benefits of
accepting the government's plea offer."

(15-7740, ECF No. 1-5

at 12) .
Respondents argue that the November 1, 2015 affidavit,
submitted by Petitioner and purportedly signed by his trial
counsel, indicates that the potential immigration-related

31

collateral consequences led to Petitioner's reservations in
accepting the government's plea offers, and this undermines his
claim that he rejected the plea offers because he was unaware of
the sentencing exposure.

(15-7740, ECF Nos. 50 at 52 and 5-2 at

1) .

In his traverse, Petitioner submits that he was not aware
that he was facing a potential thirty-seven-year sentence, which
he characterizes as a life sentence, and that counsel's
incorrect advice about possible deportation spurred his decision
to reject the plea offer.s

(15-7740, ECF No. 51 at 19-20}.

"Knowledge of the comparative sentence exposure between
standing trial and accepting a plea offer will often be crucial
to the decision whether to plead guilty."

United States v. Day,

969 F.2d 39, 43 (3d Cir. 1992).
This Court has reviewed the two
extended by the prosecution.

wr~tten

plea offers

One of the two written plea offers

reflects that the maximum sentence for one of the six statutes
for which Petitioner was charged with violating was five years.
The plea offer dated November 8, 2012, provides the statutory
sentencing maximumi five years, should Petitioner plead guilty

s Petitioner arrived at the conclusion that his crime of
conviction does not subject him to immigration consequences
based on his own research. This Court does not make any findings
as to whether there are immigration consequences to Petitioner's
conviction.
32

to one count of conspiracy in violation of 18 U.S.C. § 371.
(15-7740, ECF No. 12-8 at 3). Petitioner, however, claims that
he was never advised of the statutory sentencing maximum on all
nine counts charged, and he would have accepted a plea if he had
known the maximum he faced.
The record contains two conflicting affidavits from
Petitioner's trial counsel.

In the November 1, 2015, affidavit

submitted by Petitioner but purportedly signed by his trial
counsel; trial counsel stated:
3)
On or about October 16, 2012, when I
showed Rad the government's plea offer, I
advised him that he could win at trial based
on the above.
(4)
He could be deported if he pled guilty
to the October 16, 2012 plea agreement that
the government offered him.
(15-7740, ECF No. 5-2 at 1).
In the March 21, 2016, affidavit, trial counsel certified
the following with respect to the Petitioner's sentence
exposure.
5) I reviewed the Superseding Indictment
with Christopher Rad and, as is my normal
practice, informed him of the relevant
statutory maximum penalties for each of the
charges, and also informed him that, because
a sentencing judge could sentence him to
consecutive sentences for each of the
counts, that he faced significant additional
exposure as a result of the new charges.
7) With respect to Christopher Rad's
likelihood of prevailing at trial, I
33

informed him that there were viable defenses
and defense strategies that we could pursue
at trial; however, as is my normal practice,
I never guaranteed or promised an acquittal
at trial.
(15-7740, ECF No. 12-11 at 2).
Petitioner's November 1, 2015, affidavit provided

self~

serving statements that are curiously absent from the March 21,
2016, affidavit.

For example, the November 2015 affidavit

indicates that counsel told Petitioner about a proper defense
strategy and also that his technical ineptitude prevented him
from recognizing that some of the government's witnesses were
providing false testimony.

(15-7740, ECF No. 5-2).

Whereas,

the March 21, 2016, affidavit provides an unequivocal statement
that counsel did not guarantee Petitioner a victorious trial
outcome.

(15-7740, ECF No. 12-11 at 3).

Based on the conflicting affidavits, the record does not
conclusively show that Petitioner is not entitled to federal
habeas relief on this claim.
Cir. 2015).

See Tolliver,

800 F.3d at 142 (3d

Therefore, out of an abundance of caution given the

two different affidavits, an evidentiary hearing on this claim
will be ordered.
iii. Trial Counsel's Failure to Move for a Post-Verdict
Motion of Acquittal was Ineffective Assistance
In Grounds Five and Six, Petitioner alleges that trial
counsel's failure to move for a post-verdict judgment of

34

acquittal on Counts One, Five, Six, Seven, Eight and Nine
constituted ineffective assistance.
14).

(15-7740, ECF No. 37 at

More specifically, with respect to Counts Five through

Nine, Petitioner argues that counsel should have advanced the
argument that the evidence failed to support that "multiple emails had been sent through any specific protected computer, nor
that Movant had agreed to do so."

(15-7740, ECF No. 1 at 7).

The record reflects that trial counsel unsuccessfully moved for
judgment· of acquittal on all counts twice during the pendency of
Petitioner's trial.

(11-cr-161, ECF No. 86 at 96).

The trial

court ruled on Petitioner's first Rule 29 motion for judgment of
acquittal after the prosecution presented its case in chief.
Petitioner's trial counsel subsequently unsuccessfully renewed
his motion for judgment of acquittal after the verdict was
delivered.

(11-cr-161, ECF No. 76.)
Judgment of Acquittal on Count One

Petitioner argues that "there was no evidence presented at
trial that Movant had agreed to the false registration of any
emails."

Additionally, he argues that trial counsel failed to

move for judgment of acquittal "on count one where the
government presented no evidence that any headers were
materially falsified."

(15-7740, ECF No. 4 at 4, 7).

The trial court denied the motion for judgement of
acquittal with respect to count one as follows:
35

First of all, with respect to the testimony of
James Bragg, we have on pages 98 of the record,
page 99, 100, 102 through 103 in which Mr.
Bragg
testified
not
only
about
his
relationship with Mr.
Rad,
but also the
purpose
for
that
relationship
and
the
mechanism for executing what was described as
a securities fraud scheme.
Particularly on page 100, Mr. Bragg testified
that Mr. Rad's role was to provide him, Bragg,
with stock; that he, Rad was the one in charge
of selling the stock after I, Bragg, promoted
it and, "QUESTION: Why did he need you to do
this?"
His answer was, page 100, line 8, "getting
past spam filters and when you're spamming or
in that world to get past those filters, you
have to have certain knowledge to be able to
bypass and get into people's inbox.
If you
don't know what you're doing, everything goes
directly to the spam folder."
On
page
101,
Mr.
Bragg
explained
the
mechanism, line three, "he would paste it in
the chat program we were using, word-for-word
in the text format."
At that point, line 7,
"he," Rad, "generally told me the amount of
shares we needed to move, then I would base
the mailing on that.
I would load the e-mail
message that he's given me into my e-mail
software, my e-mail software would then go out
to the larger ISP's as hotmail, gmail, yahoo
and
it
would
create
e-mail
accounts,_
fictitious e-mail accounts and send the e-mail
through those accounts."
Page 102, Mr. Bragg testified that "e-mail
accounts were set up in randomly-generated
names from text files that he "Bragg, "would
put into the software.
"QUESTION:
"ANSWER:

Were they false names?
Yes, they were.

36

"QUESTION:
"ANSWER:

Were the registration[s] false?
Yes, they were.

"QUESTION:
ANSWER:

How many of these did you create?

Hundreds of thousands.

"QUESTION:
about this?
"ANSWER:

Did

you

talk

to

the

defendant

Yes, I have."

Page 103, Bragg testified that he showed Mr.
Rad versions of the e-mail that he had sent
out and then we get into what he described as
a seed address. This is page 103, line 11.
Page 104, Mr. Bragg was asked how he made up
the mailing lists and he said, "ANSWER:
A
small amount was created by me through
building websites to opt-in.
The rest were
purchased lists I bought on the internet.
"QUESTION:

Where did you purchase them from?

Multiple forums, people in general.
Anyone
that said they had an e-mail list their people
would be interested in stock.
"QUESTION: Did you verify, did you take steps
to verify those were opt-ins?
"ANSWER:
"QUESTION:
ins?
"ANSWER:

No, I didn't.
In your experience, were they opt-

No, they were not."

Clearly through the testimony of Mr. Bragg,
who went on to say on page 114, that Mr. Rad
had pasted him the actual messages that would
be sent,
including the disclaimers which
described as false disclaimers, because he was
misrepresenting the amount of shares which
were going to be put on the market by the
37

conspirators.
I
disagree
that
there's
inadequate
evidence
to
demonstrate
a
conspiracy to commit securities fraud simply
based upon the testimony of Mr. Bragg.
(Id. at 98-101).

Notwithstanding the trial court's reasoned denial based on
voluminous documentary evidence and witness testimony during the
government's case in chief, Petitioner maintains that the
evidence did not support the conspiracy conviction.

As

respondents point out Petitioner's trial counsel made a
comprehensive argument about the insufficiency of the evidence.
Moreover, Petitioner's argument is belied by the record which
demonstrates that the prosecution met their burden of proving
the elements of 18 U.S.C. § 371, conspiracy to commit crimes
against the United States (Securities Fraud; False Header
Spamming; and False Registration Spamming).

(15-7740, ECF No.

50 at 62-65).
Judgment of Acquittal on Counts Five Through Nine
The trial court also ruled on trial counsel's motion for
judgment of. acquittal on Counts Five through Nine.
With respect to count five, whether there's
sufficient evidence to sustain a conviction as
to count give, which is a conspiracy to commit
essentially illegal spamming, we have all of
the
evidence,
Government
exhibit
1205,
Government exhibit 1202, 1201, of course,
which we'll be getting to in a minute, all of
which, and 1204 and 1200, all of which relates
to e-mails and Skype chats between Mr. Rad and
dean. swarowskiy, also known as Ega, which is
38

the individual set forth in count give of the
indictment.
So there clearly is evidence
which would sustain a conviction as to that
conspiracy.
As to the substantive counts, two through four
and six through nine, Government exhibit 1201
simple identifies the exhibits in evidence
which would support those substantive counts
of illegal spamming.
So for those reasons, I do not find that there
is
insufficient
evidence
to
sustain
a
conviction and the motion for acquittal is,
there£ore, denied. So we are ready to proceed?
Id. at 101.

Petitioner now argues that counsel should have premised
his motion on the insufficiency of the evidence.

However, the

record belies Petitioner's claim that trial counsel did not
already do so.

His initial and renewed Rule 29 motions were

premised on the insufficiency of the evidence.

Moreover, the

renewed Rule 2 9 motion argued specifically:· "The Government also
did not prove that the Defendant arranged for his newsletter to
be sent through unauthorized, protected computers."

(11-cr-161,

ECF No. 76 at 2.)
The trial court's written denial addressed the
insufficiency of the evidence argument as follows:
With respect to his second argument, Defendant
argues that "the Government did not produce a
single witness who claimed their protected
computer was used without authorization" and
that the Government's expert "agreed that a
system of controlled computers to send email
in a legal fashion would operate identically
39

and appear identical to a
system using
computers without authorization."
Motion at
2.
While Defendant is correct that the
government did not elicit testimony from any
witness whose computer was accessed without
authorization (that is, a "botnet" victim),
there was evidence produced at trial from
which the jury could find that the email
campaigns relevant to Counts V through IX were
sent though [sic] botnets.
See, e.g., Govt.
Ex. 1202 (admissions by co-conspirators) and
exhibits referenced therein.
(11-cr-161, ECF No. 93 at 3).
Here, Petitioner has failed to meet either prong of the
Strickland test.

First, he cannot show that counsel's

performance was deficient, as the record shows that counsel
diligently raised a Rule 29 motion twice.

Moreover, counsel's

motions were denied due to an abundance of evidence that
supported the counts of conviction.
Joseph,

See Govt't of V.I. v.

465 F. A'ppx 138, 142 (3d Cir. 2012) ("[T]he evidence was

sufficient to prove all of the elements of the crime.")
Consequently, Petitioner is not entitled to relief on this
basis.
IV. CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a
final order in a § 2255 proceeding unless a judge issues a
certificate of appealability on the ground that "the applicant
has made a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c) (2). Applying this standard, the

40

Court finds that a certificate of appealability shall not issue
in this case on Claims 1, 2, 4, 5 and 6.

This Court reserves

judgment on whether a certificate of appealability should issue
on Claim 3 until after the evidentiary hearing on this claim is
completed and this Court issues its_ opinion on the merits on
that claim.
V. CONCLUSION
For the reasons stated above, Claims 1, 2, 4, 5 and 6 of
Petitioner's Motion to Vacate, Correct, or Set Aside his
sentence are denied.

Petitioner's Claim 3 alleging ineffective

assistance of counsel for failure to pursue a sound defense
strategy and

fa~lure

to advise of the potential sentence

exposure is reserved for an evidentiary hearing.
Additionally, Petitioner's Motion for Discovery (15-7740,
ECF No. 38) and Motion for Partial Summary Judgment are denied.
(ECF No. 34).

Petitioner's motion for discovery seeks to compel

documentary evidence which he argues could support his claim
that James Bragg and Agent Allen's testimony was untruthful.
Under Rule 6(a) of the Rules Governing Habeas Corpus Cases Under
§

2255, "[a] judge may, for good cause, authorize a party to

conduct discovery . .

"

However, a habeas petitioner is not

entitled to discovery if his habeas petition is without merit.
See Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir. 1987).

41

In

light of the Court's resolution of those claims in this opinion,
Petitioner's motion for discovery is denied.
Petitioner filed a motion for partial summary judgement
arguing that the government failed to prove an element of the
conduct resulting in convictions on counts five through nine of
the superseding indictment.

(15-7740, ECF No. 34 at 1).

Summary judgment is appropriate "if the movant shows that there
is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law."

Fed. R. Civ. P.

56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 313
(1986).

This matter is addressed in the portion of this opinion

addressing the ineffective assistance of counsel claim
pertaining to counsel's failure to move for judgment of
acquittal on counts .five through nine.
iii.

See Supra, Section B,

Therefore, Petitioner's motion for partial summary

judgment is denied.
No certificate of appealability shall issue.

An

accompanying Order will be entered.

Date

I

ANNE E. THOMPSON
U.S. District Judge

42