Thompson v. United States of America

Filing 95

ORDER granting 75 Motion to Dismiss; adopting 86 Report and Recommendation and declining to issue a certificate of appealability. Signed by Chief Judge Jeffrey L. Viken on 5/29/19. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 16-5035-JLV

SCOTT THOMPSON,
Movant,

ORDER

vs.
UNITED STATES OF AMERICA,
Respondent.
INTRODUCTION

Mr. Scott Thompson, appearing pro se, moves the court to overturn his
criminal conviction under 28 U.S.C. § 2255. (Dockets 1 & 36). Following a
ten-day jury trial, Mr. Thompson was convicted of two counts of making a false
claim to a federal agency, two counts of submitting a false document to a
federal agency, two counts of wire fraud, and one count of receiving stolen
government money. (Dockets 213 & 218). The convictions stem from Mr.
Thompson’s improper representations to the National Science Foundation
(“NSF”) in a grant application and report and his improper use of NSF grant
funding. He now claims his trial was marred by ineffective assistance of
counsel, false testimony, and prosecutorial misconduct. (Docket 64). He also
claims he is actually innocent of the crimes for which he was convicted. Id.
The government seeks to dismiss Mr. Thompson’s § 2255 motion. (Docket 75).
Mr. Thompson’s motion was referred to Magistrate Judge Veronica L.
Duffy pursuant to the court’s standing order of October 16, 2014, and

28 U.S.C. § 636(b)(1) for a report and recommendation (“R&R”). After extensive
briefing, the magistrate judge issued an R&R concluding Mr. Thompson’s
motion should be denied in full without an evidentiary hearing. (Docket 86).
Mr. Thompson timely objected to the R&R. (Docket 93).
Under the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a party files
written objections to the magistrate judge’s proposed findings and
recommendations, the district court is required to “make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” Id. The court may “accept,
reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge.” Id. For the reasons given below, the court overrules Mr.
Thompson’s objections to the R&R and adopts that thorough document in full.
The court denies Mr. Thompson’s requests for discovery and an evidentiary
hearing. The court denies Mr. Thompson’s § 2255 motion.
ANALYSIS
I.

Facts and Procedural History
Mr. Thompson does not specifically object to the factual findings made by

the magistrate judge. However, he presents a short factual recitation that
differs in material respects from the magistrate judge’s findings. (Docket 93 at
pp. 2-4). Given Mr. Thompson’s pro se status, the court will construe his
factual recitation as objections to the magistrate judge’s findings. See Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally

2

construed[.]”) (internal quotation omitted). The court denies these factual
objections below. See infra Section III.
The magistrate judge exhaustively summarized the complex testimony
presented at Mr. Thompson’s jury trial. (Docket 86 at pp. 5-69). The summary
is adopted in full. In its order denying Mr. Thompson’s motions for acquittal
and a new trial, the court also made factual findings of its own regarding the
trial testimony. (CR. Docket 279 at pp. 3-8).1 Given the extensive factual
summary presented in the R&R and the order denying defendant’s post-trial
motions, the court will not repeat the facts here. As necessary, the court will
recite facts from those sources pertinent to Mr. Thompson’s objections.
A brief explanation of the procedural history of this case is necessary to
note the pleadings the court considered in reaching its decision. Mr.
Thompson first filed his § 2255 motion on May 27, 2016. (Docket 1).
Following four extensions, Mr. Thompson filed an amended motion and a 231page brief in support of the motion.2 (Dockets 36 & 37). The government
moved to require Mr. Thompson to comply with the local rules governing brief
length. (Docket 54). The magistrate judge granted that motion. (Docket 55).

1Mr.

Thompson’s criminal case may be found at this court’s docket
number CR. 11-50054. The court will cite to documents filed in the criminal
case as “(CR. Docket ___)”.
2The

court notes Mr. Thompson filed his amended motion untimely.
Compare Docket 14 (requiring Mr. Thompson to file his amended motion by
February 15, 2017) with Docket 36 (amended motion filed on March 3). The
magistrate judge was untroubled by Mr. Thompson’s tardiness. Given his pro
se status, the court will not penalize Mr. Thompson for his violation of the
magistrate judge’s order.
3

Mr. Thompson then petitioned the magistrate judge three times to file an
overlength brief, whittling the proposed page number down each time.
(Dockets 56, 58 & 62). The magistrate judge permitted Mr. Thompson to file a
41-page brief. (Dockets 63 & 64). The court only considers that brief.
In support of his amended motion, Mr. Thompson also filed, by the
magistrate judge’s count, 2,606 pages of exhibits. (Docket 86 at p. 78)
(referencing Dockets 38-53). The magistrate judge did not indicate whether
she considered any of Mr. Thompson’s voluminous exhibits.3 The Rules
Governing Section 2255 Proceedings state “[if] the motion is not dismissed, the
judge may direct the parties to expand the record by submitting additional
materials relating to the motion. The judge may require that these materials be
authenticated.” Governing Rule 7(a) (emphasis added). Neither the magistrate
judge nor this court permitted Mr. Thompson to supplement the existing
record.4 Finally, the existing record is itself most detailed, including more than
1,200 pages of trial transcript, hundreds of trial exhibits, and hundreds more
pages of briefing and orders regarding Mr. Thompson’s 2255 motion. The court
has all the information it needs to resolve this matter without delving into Mr.
Thompson’s exhibits. Accordingly, the court does not consider Mr. Thompson’s

3To

the extent Mr. Thompson intended to object to the magistrate judge’s
refusal to consider his exhibits, the court overrules that objection. For the
reasons given in this section, the magistrate judge did not err in declining to
consider Mr. Thompson’s excessive and improper exhibits.
4Contrast

that silence with the magistrate judge’s order directing the
government to supplement the record with Mr. Poppen’s affidavit. (Docket 71).  
4

exhibits, which were neither submitted with the court’s permission nor
authenticated.
The government requested and was granted a waiver of Mr. Thompson’s
attorney-client privilege regarding the attorney who represented him at trial,
Mr. Brett Poppen. (Dockets 69, 71 & 73). Mr. Poppen filed an affidavit
responding to Mr. Thompson’s ineffective assistance claims. (Docket 77). The
government referred to Mr. Poppen’s affidavit in its motion to dismiss. (Docket
76). Mr. Thompson responded to the government’s motion to dismiss. (Docket
85).
Mr. Thompson filed objections to the R&R. (Docket 91). He then filed a
document styled as a motion to amend his objections, but which consisted
solely of the amended objections with no request or justification for the
amendment. (Docket 93). The court nevertheless accepted the amended
objections and informed Mr. Thompson it would only consider the amended
objections. (Docket 94). The court then declared the matter fully briefed. Id.
II.

Summary of Movant’s Objections
As noted above, the court discerns five factual objections to the R&R

from Mr. Thompson’s factual recitations. As summarized by the court, those
objections contend:
1.

Dr. Qiquan Qiao logged into the NSF’s website as Dr. Jing Li
and submitted a grant proposal on behalf of Isosceles, LLC.
(“Isosceles”) listing Dr. Li as the grant’s principal investigator
(“PI”). (Docket 93 at p. 2).

2.

Dr. Qiao told Mr. Thompson South Dakota State University
(“SDSU”) would process the paperwork needed for Dr. Li to
5

be employed with Isosceles for purposes of the grant. Id. at
p. 3.
3.

Dr. Qiao falsely told Mr. Thompson he was required to apply
for a certain visa to enable Dr. Li to work for Isosceles. Id.

4.

Drs. Qiao and Li prepared the final report required by the
NSF following the grant termination and included in that
report false statements and plagiarized text. Id.

5.

Mr. Thompson certified to the NSF that Dr. Li worked 160
hours on the grant but did not certify those hours were
worked specifically on behalf of Isosceles. Id. at p. 4.

The court will first address each factual objection in turn.
Mr. Thompson also raised 12 objections to the magistrate judge’s legal
conclusions. As summarized by the court, those objections argue:
1.

Mr. Poppen’s representation of Mr. Thompson was ineffective
because he did not present evidence Mr. Thompson was not
required to obtain any specific visa before hiring Dr. Li. Id.
at pp. 6-8.

2.

Mr. Poppen’s representation was ineffective because he did
not hire an expert witness to refute testimony by Dr. Prakesh
Balan that NSF rules prohibited Mr. Thompson’s use of
grant funds. Id. at pp. 9-10.

3.

Mr. Poppen’s representation was ineffective because he did
not fully advise Mr. Thompson of Dr. Dennis Helder’s “hostile
disposition” toward him before asking him to sign a waiver of
conflict based on Mr. Poppen’s friendship with Dr. Helder’s
son. Id. at pp. 11-13.

4.

Mr. Poppen’s representation was ineffective because he did
not properly investigate NSF grant rules and consequently
did not present evidence that Mr. Thompson’s use of grant
funding to pay credit card bills was permissible. Id. at
pp. 13-14.

5.

Mr. Poppen’s representation was ineffective because his
“unpreparedness” denied Mr. Thompson his right to testify.
Id. at pp. 14-15.

6.

Mr. Thompson was not required to obtain any specific visa
before hiring Dr. Li. Id. at p. 15.
6

7.

Mr. Thompson did in fact hire Dr. Li. Id. at pp. 16-17.

8.

All expenses Mr. Thompson charged to the grant were
permitted under NSF rules. Id. at pp. 17-19.

9.

Trial testimony regarding Mr. Thompson using Dr. Li’s
credentials to submit a final report to the NSF improperly
broadened the indictment. Id. at p. 19.

10.

Mr. Thompson was actually innocent. Id. at pp. 19-21.

11.

Prosecutors committed misconduct by presenting false
evidence Mr. Thompson was required to obtain a visa before
hiring Dr. Li. Id. at pp. 21-22.

12.

Mr. Thompson did not procedurally default his nonineffective assistance claims because the failure to raise his
claims on direct appeal were due to Mr. Poppen’s
incompetence “and/or newly discovered evidence.” Id. at
pp. 23-24.

Many of these legal objections center around two broad themes: whether Mr.
Thompson was required to affirmatively obtain a specific visa before hiring Dr.
Li to work on the Isosceles grant and whether NSF rules permitted Mr.
Thompson to spend the grant funding as he did. Accordingly, the court will
address these two questions and the objections hinging on them before turning
to the remainder of the legal objections.
III.

Movant’s Factual Objections
In the context of a § 2255 motion, “[a] petitioner’s allegations must be

accepted as true . . . unless they are contradicted by the record, inherently
incredible, merely conclusory, or would not entitle the petitioner to relief.”
Garcia v. United States, 679 F.3d 1013, 1014 (8th Cir. 2012). Reviewing Mr.
Thompson’s factual objections under this standard, the court overrules each of
them.

7

A.

Filing the grant proposal

Defendant asserts Dr. Qiao logged into the NSF’s online portal as Dr. Li
and submitted the grant proposal on behalf of Isosceles, listing Dr. Li as the PI.
(Docket 93 at p. 2). This assertion is belied by trial testimony and exhibits.
The proposal shows Mr. Thompson electronically signed the proposal and
submitted it on February 25, 2009, as Isosceles’ authorized organizational
representative. Trial Ex. 1. Dr. Qiao testified at trial he did not file the grant
proposal. (CR. Docket 240 at p. 27).5
The jury verdict is equivocal on this factual matter. Mr. Thompson’s
version of the proposal filing contradicts the jury’s verdict of guilty on count 4
of the indictment as it was presented to the jury.6 (CR. Docket 218 at p. 2).
That count charged Mr. Thompson with submitting the proposal and falsely
stating in the proposal that Steven Makrinos was the CEO for Isosceles. (CR.
Docket 208 at p. 9). However, the jury found Mr. Thompson not guilty on
count 7, which charged Mr. Thompson with wire fraud for submitting the grant

5The

trial transcript consists of eight volumes filed as separate entries in
the criminal docket. See Dockets 238-245. The magistrate judge cited to the
transcript as a single, continuously paginated volume. (Docket 86 at p. 4 n.1).
For ease of reference by a reader with access to the criminal docket, the court
will instead cite to the transcript at its individual docket entry and as
paginated by the CM/ECF system.
6The

court dismissed the original count 4 of the indictment on the
motion of the government. (CR. Dockets 179, 201, 203 & 204). The counts
presented to the jury were renumbered to account for the dismissal. See
Docket 208 at pp. 5-16 (listing the counts and their elements in the primary
jury instructions). The count 4 presented to the jury represents count 5 in the
superseding indictment. In general, this order will refer to counts of the
indictment as they were presented to the jury.
8

proposal. (CR. Docket 218 at p. 2). The verdict form does not indicate the
jury’s reasoning for finding Mr. Thompson not guilty on count 7. Id. Given the
jury’s guilty verdict on count 4, however, the court deduces the jury’s
disagreement with the charge was not a factual one based on the question of
who submitted the proposal.
Accordingly, the court finds Mr. Thompson submitted the grant proposal
listing Dr. Li as the PI. The objection is overruled.
B.

SDSU & Dr. Li’s visa

Mr. Thompson claims Dr. Qiao told him “SDSU would process the
necessary paperwork for [Dr.] Li’s employment in connection with the grant.”
(Docket 93 at p. 2). This claim is contradicted by the trial record. Dr. Qiao
testified Mr. Thompson asked him to arrange for SDSU to obtain a visa
allowing Dr. Li to work for Isosceles. See Docket 86 at pp. 27-30 (summarizing
trial testimony regarding Mr. Thompson and Dr. Qiao’s communications on Dr.
Li’s visa). Dr. Qiao at first referred Mr. Thompson to SDSU employees
knowledgeable about international student and worker visas. Id. Dr. Qiao
nevertheless made clear to Mr. Thompson that he was responsible for hiring
Dr. Li. Id.
Trial exhibits make clear that both Dr. Qiao and SDSU employees
informed Mr. Thompson it was his responsibility to obtain the proper visa for
Dr. Li. In May of 2009, Dr. Qiao informed Mr. Thompson via e-mail he “would
need to take care of [Dr. Li’s] training visa or H4 visa. SDSU can not [sic] do
that for your company . . . period.” Trial Ex. 526AA at p. 2. Again via e-mail,
9

in September of 2009—after Isosceles was required to hire Dr. Li under NSF
rules—Dr. Qiao referred Mr. Thompson to John Mann, an international student
advisor for SDSU. Trial Ex. 526H at p. 4. Mr. Mann informed Mr. Thompson
he would need to register as an exchange visitor sponsor with the State
Department to transfer Dr. Li’s J-1 visa—which he stated was not possible—or
sponsor Dr. Li for an H-1 work visa. Id. at pp. 2-3. Dr. Qiao responded to that
e-mail thread with a message clarifying Mr. Thompson would “need to transfer
Dr. Jing Li’s VISA [sic] from SDSU to Isosceles” and he “did not mention that
John at SDSU will transfer [Dr. Li’s] exchange VISA[.]” Id. at p. 2. Mr.
Thompson then agreed to submit a visa application for Dr. Li. Id. at pp. 1-2.
The trial record is clear Dr. Qiao did not agree SDSU would process the
paperwork needed for Isosceles to hire Dr. Li. The objection is overruled.
C.

Dr. Qiao & Dr. Li’s visa

Mr. Thompson alleges Dr. Qiao falsely told him he “was required to
procure” Dr. Li’s visa. (Docket 93 at p. 3). As described above, see supra
Section III.B., Dr. Qiao did tell Mr. Thompson he was required to procure an
appropriate visa in order to hire Dr. Li. Whether that statement was false is
an underlying concern of much of Mr. Thompson’s § 2255 motion. The court
rejects Mr. Thompson’s argument below. See infra Section IV.A. The objection
is overruled.
D.

Plagiarism in final report

Mr. Thompson claims that the portion of the final report he was required
to submit to the NSF authored by Drs. Qiao & Li contained “false statements
10

and plagiarized text.” (Docket 93 at p. 3). He does not explain what
statements were false or what portions of the report were plagiarized. In his
opening brief, Mr. Thompson asserts unspecified e-mails would show Dr. Qiao
copied his portion of the final report from an individual named Yu Xie. (Docket
64 at p. 18). In his reply brief, Mr. Thompson asserted he instructed Mr.
Poppen to “look for any . . . evidence the report was plagiarized.” (Docket 85 at
p. 10). He claims Mr. Poppen was provided the “plagiarized work.” Id. In his
objections, Mr. Thompson also argues Mr. Poppen should have used the
“plagiarized report” to “impeach the testimony offered by most of the
government’s witnesses.” (Docket 93 at p. 20).
Mr. Thompson’s factual objection on this point is conclusory.7 He never
provides the court with any specific examples of plagiarism or false statements
in the final report. The trial testimony regarding the final report was sparse
and did not allege it contained plagiarism or false statements. The portions of
the report authored by Drs. Qiao and Li are short and heavily technical in
nature. Trial Exs. 736 & 737. There is no indication from the face of the
reports that they contain false statements or plagiarized text. The factual
objection is overruled.

7Additionally,

the court cannot discern, even if this objection was true
and the final report was plagiarized or false, how this factual matter would
support Mr. Thompson’s § 2255 motion. The jury did not convict him of lying
regarding the final report’s technical portions. The jury convicted him of lying
in the final report regarding Dr. Li’s employment with Isosceles. (CR. Dockets
208 at pp. 6, 9 & 218 at pp. 1-2).
11

E.

Dr. Li’s work for Isosceles

Mr. Thompson states he certified to the NSF that Dr. Li worked 160
hours on the grant, as required by NSF rules, but he argues he did not
specifically certify Dr. Li worked those hours on behalf of Isosceles, as opposed
to SDSU. (Docket 93 at p. 4). This assertion was the subject of testimony at
trial and was rejected by the jury, as reflected in its verdict.
The final report submitted to the NSF in relation to this grant indicated,
on its face, that it was filed by Dr. Li and that Dr. Li worked more than 160
hours on the project. Trial Ex. 4. The portion of the report stating it was filed
by Dr. Li was automatically generated by the NSF’s website because it was
submitted by a person using Dr. Li’s credentials. (Docket 86 at p. 65). Mr.
Thompson submitted the report using Dr. Li’s credentials. (CR. Docket 279 at
p. 6). Dr. Li did not submit the report. (Docket 86 at p. 39). In its ruling on
Mr. Thompson’s motion for a judgment of acquittal at trial, the court concluded
it was a question of fact for the jury as to whether Mr. Thompson “claimed Jing
Li was employed as the principal investigator for Isosceles for the project and
that he worked more than a 160 hours on the project knowing the claims were
false in that Jing Li was not an employee of Isosceles LLC and had not worked
160 hours.” (CR. Docket 244 at p. 115).
The jury resolved this factual matter in its verdict. The jury convicted
Mr. Thompson on counts 3 and 6, both of which alleged Mr. Thompson falsely
claimed Dr. Li was employed by Isosceles as the PI and worked 160 hours as
the PI for Isosceles. (CR. Docket 208 at pp. 6, 9). Because the trial record
12

reflects the jury was presented with this factual question and resolved it in a
manner contradicting Mr. Thompson’s objection, the objection is overruled.
IV.

Movant’s Legal Objections
As noted above, two legal questions underlie much of Mr. Thompson’s

§ 2255 motion: whether he was required to obtain a visa to employ Dr. Li and
whether he was permitted to spend the Isosceles grant funds as he did. As
discussed below, the court concludes Dr. Li could not have worked for Isosceles
on his exchange visitor visa at the time Mr. Thompson told the NSF Dr. Li was
employed by Isosceles. The court also concludes Mr. Thompson was not
permitted to spend Isosceles’ grant funds on his credit card bills. The court
accordingly overrules the objections grounded in these erroneous premises.
A.

Whether Mr. Thompson was required to obtain Dr. Li’s visa

Mr. Thompson strenuously argues he was not required to procure any
particular visa before hiring Dr. Li. See, e.g., Docket 93 at pp. 15-17. He
argues testimony to the jury that he was required to procure a visa “somehow
supports a finding [Mr.] Thompson knew at the time he certified” documents to
the NSF that “he had not hired [Dr.] Li.” Id. at p. 20. He believes the jury
convicted him because they found he knew he had not hired Dr. Li due to the
lack of an appropriate visa. Id. at pp. 21-22.
Dr. Li came to the United States in 2008 as a post-doctoral student and
researcher. (CR. Docket 241 at p. 131). He was present in the United States
on a J-1 visa. Id. at p. 132. He believed he was unable to work for Isosceles
without an H-1 visa. Id. at pp. 138-39. As noted above, Mr. Thompson was
13

given the same information by Dr. Qiao and Mr. Mann at SDSU. See supra
Section III.B (citing Trial Ex. 526H).
J-1 visas are designed to “increase mutual understanding between the
people of the United States and the people of other countries by means of
educational and cultural exchanges.” 22 C.F.R. § 62.1. Only foreign persons
intending to engage in certain educational or cultural pursuits in the United
States are eligible for a J-1 visa. See 22 C.F.R. § 62.4 (defining the categories
of persons eligible for a J-1 visa). The regulations governing employment of J-1
visa holders depends on the category of visa held. The trial record does not
contain a copy of Dr. Li’s J-1 visa or the accompanying paperwork. However,
given the trial testimony, it is apparent Dr. Li’s visa was in either the category
“Professors and Research Scholars” or “College and University Students.”8
Neither category of J-1 visa permits holders to seek general employment
outside their academic sponsoring institution. J-1 visa holders in the professor
or research scholar category may only seek outside employment in “occasional
lectures and short-term consultations” which must be “incidental to the
exchange visitor’s primary program activities.” 22 C.F.R. § 62.20(g). There is
no evidence Dr. Li’s employment with Isosceles would have been a lecture or
short-term consultation, nor does Mr. Thompson make that argument.

8Mr.

Thompson repeatedly refers to 22 C.F.R. § 62.23 as the basis for his
argument he was not required to obtain a visa for Dr. Li. See, e.g., Docket 93
at p. 8. That regulation governs J-1 visas for college and university students.
The court assumes Mr. Thompson is therefore claiming Dr. Li was present in
the United States on a student J-1 visa.
14

Student J-1 visa holders may participate in “an academic training
program for wages[.]” 22 C.F.R. §§ 62.23(f)(2). Mr. Thompson asserts Dr. Li
was eligible to work for Isosceles under the academic training employment
provision.9 (Docket 93 at p. 15).
The most obvious problem with this argument is there is no evidence
employment with Isosceles would have qualified as academic training under
the regulations. To qualify as academic training, the proposed program must
both relate to the student’s major field of study and constitute “an integral or
critical part of the academic program of the student.” 22 C.F.R.
§§ 62.23(f)(5)(i)(C), (D). There is no evidence Isosceles would have so qualified
and a considerable amount of evidence in the trial record indicating that
Isosceles was a profit-seeking venture not designed to provide academic
training. See, e.g. Docket 86 at pp. 5-9 (summarizing trial testimony
establishing the grant Isosceles received from NSF was designed to aid
“startups and small businesses with innovative ideas.”).
Furthermore, the academic institution sponsoring the student must
permit the student to engage in the training. Id. at § 62.23(f)(5)(i). The

9Mr.

Thompson cites to portions of the evidentiary exhibits he provided in
support of this assertion. (Docket 93 at p. 15) (citing Dockets 38-5 at p. 12 &
39-4 at pp. 5, 10-12). As noted above, see supra Section I, the court did not
consider Mr. Thompson’s exhibits. The court notes the proffered evidence is a
page from the SDSU 2012-2013 international student handbook stating J-1
visa holders cannot be employed without “proper authorization” and a 2016
e-mail from an SDSU official stating J-1 visa holders can engage in academic
training internships with school sponsorship. Even if the court were to
consider the proffered documents, they do not prove SDSU authorized Dr. Li to
work for Isosceles in 2009 as academic training.
15

student’s “academic dean or advisor” must complete a letter of
recommendation certifying the importance of the training program. Id. Dr.
Qiao was Dr. Li’s academic advisor.10 (CR. Docket 240 at p. 18). The idea that
Dr. Qiao authorized Dr. Li to work with Isosceles as academic training is wholly
contradicted by the abundant evidence in the trial record that Dr. Qiao believed
Dr. Li needed a separate visa to work for Isosceles. See, e.g., id. at p. 25.
The evidence in the trial record makes clear SDSU did not fulfill the
conditions which would have allowed Dr. Li to be employed with Isosceles
under the academic training provision of the J-1 visa regulations.11 No other
path to employment outside SDSU was open to Dr. Li while he was in the
United States on a J-1 visa. See C.F.R. § 62.16 (stating unauthorized
employment may result in J-1 visa termination). It is also uncontroverted that
Dr. Li did not obtain any other type of visa before the Isosceles grant was
awarded. The court must conclude Mr. Thompson could not have legally hired

10Because

the trial record does not contain Dr. Li’s visa or any visa
paperwork, there may appear to be some uncertainty regarding whether Dr.
Qiao was Dr. Li’s academic advisor for visa purposes. Mr. Thompson provides
no evidence that: 1. another SDSU professor was Dr. Li’s academic advisor for
visa purposes; and 2. that other professor authorized employment with
Isosceles as academic training. Even if he had provided such evidence, it
would be contradicted by the trial record, which makes abundantly clear Dr. Li
came to SDSU from China to work with Dr. Qiao and that Dr. Qiao was Dr. Li’s
primary academic supervisor. See, e.g. CR. Docket 240 at p. 18, CR. Docket
241 at pp. 131-33. The court concludes Dr. Qiao was Dr. Li’s academic advisor
for visa purposes.
11The

court is highly skeptical employment with Isosceles would have
qualified as academic training even if SDSU had permitted Dr. Li to work there.
That question does not impact the resolution of Mr. Thompson’s § 2255
motion, so the court has no occasion to analyze it further.
16

Dr. Li as of the date the grant came into effect because Dr. Li’s J-1 visa did not
permit employment without SDSU authorization and because Dr. Li did not
obtain any other visa.
The court need not resolve the question of whether Mr. Thompson was
required to obtain a certain visa to permit employment to overrule Mr.
Thompson’s objections on this topic.12 It is enough for the court to hold Dr. Li
could not have been legally employed by Isosceles because SDSU did not
authorize him to seek employment with Isosceles as academic training and
because his J-1 visa did not permit any other form of outside employment. Put
another way, someone had to obtain a different visa or SDSU approval before
Isosceles could employ Dr. Li. Whether that someone was Mr. Thompson or
another person is immaterial because no one acted to make Dr. Li eligible for
outside employment prior to the date Mr. Thompson told the NSF Dr. Li was
employed by Isosceles.
The jury convicted Mr. Thompson of lying to the NSF by stating Isosceles
employed Dr. Li. (CR. Dockets 208 at pp. 6, 9 & 218 at pp. 1-2). That verdict

12H-1

visas authorize certain aliens to “come to the United States
temporarily to perform services or labor for, or to receive training from, an
employer, if petitioned for by that employer.” 8 C.F.R. § 214.2(h)(1)(i). An H-1B
visa permits aliens to reside in the United States to “perform services in a
specialty occupation” when the “prospective employer has filed a labor
condition application” that has been approved by the Secretary of Labor. Id. at
§ 214.2(h)(1)(ii)(B)(1). Mr. Thompson would have been required to apply for an
H-1B visa for Dr. Li if that was the method he chose to employ Dr. Li. The
court makes no findings regarding whether other options, aside from the H-1B
visa or J-1 academic training program, would have permitted Isosceles to
employ Dr. Li or whether Mr. Thompson would have been responsible for
pursuing those options.
17

rested on a “fact question . . . as to whether, express or implied, Jing Li was
hired by the company and whether the hiring encountered the impossibility of
the visa problems.” (CR. Docket 245 at p. 4). The court even gave a
supplemental instruction allowing the jury to determine if Dr. Li was employed
by Isosceles pursuant to an implied employment contract, over strenuous
government objection. (CR. Dockets 211 at p. 4 & 245 at pp. 2-14). The jury
obviously resolved that fact question against Mr. Thompson. Mr. Thompson
has not shown testimony regarding Dr. Li’s visa status was false, much less so
willfully false as to be a constitutional violation.
Accordingly, the court overrules all of Mr. Thompson’s objections to the
R&R that rest on his visa argument. This includes his third factual objection,
see supra Section III.C, and his first, sixth, seventh, tenth and eleventh legal
objections. Mr. Thompson’s first objection argues Mr. Poppen’s representation
was ineffective because he did not present Mr. Thompson’s visa theory to the
jury. (Docket 93 at pp. 6-8). It is not ineffective representation when defense
counsel declines to present a legally erroneous theory to the jury. The other
objections all contend the magistrate judge erred in rejecting arguments related
to Mr. Thompson’s visa theory. His sixth and seventh objections assert the
magistrate judge erred by concluding Dr. Li needed a new visa to work at
Isosceles and that Isosceles never hired Dr. Li. Id. at pp. 15-17. Mr.
Thompson’s tenth objection asserts the magistrate judge erred by concluding
Mr. Thompson did not show actual innocence. Id. at pp. 19-21. He asserts his
visa theory proves his innocence. Id. at pp. 20-21. Finally, his eleventh
18

objection asserts the magistrate judge erred by rejecting his argument
prosecutors engaged in misconduct when they presented evidence
contradicting his visa theory at trial. Id. at pp. 21-22. The court overrules all
these objections. The magistrate judge was correct in rejecting Mr. Thompson’s
visa theory.
B.

Whether Mr. Thompson’s use of NSF grant funding was
permissible

Mr. Thompson argues all the expenses he charged to the grant “were
allowable under the NSF’s grant conditions.” (Docket 93 at p. 18). He argues
the jury would not have convicted him of converting NSF funds had his theory
been presented at trial. Id. at p. 19. These arguments are flatly contradicted
by trial testimony and exhibits.
The award letter from the NSF regarding the grant states the funding is
provided to Isosceles “for support of the project described in the proposal . . .
as modified by revised budget dated May 10, 2009.” Trial Ex. 2 at p. 1. The
letter includes a summary of the approved budget. Id. at p. 3. The entire
budget was received into evidence at trial. Trial Ex. 1A. Dr. Prakesh Balan, a
NSF official, testified at trial the budget included in a grant proposal governs
once the award is granted. (CR. Docket 238 at pp. 72-73). Dr. Balan also
testified grant funds could not be transferred to a “purely personal account”
after the grant had been terminated. (CR. Docket 239 at p. 116). Isosceles’
grant was terminated as of December 20, 2009. Trial Ex. 2B.
The government introduced abundant evidence showing Mr. Thompson
spent thousands of dollars of grant funds on personal expenses before and
19

after the Isosceles grant was terminated. Mr. Thompson opened an account for
Isosceles at Dakotah Bank. (CR. Docket 243 at p. 15). The NSF deposited
$100,000 connected with the grant into that account on July 6, 2009. Id. at
p. 17. Mr. Thompson proceeded to spend tens of thousands of dollars on
personal bills in his own name. (Docket 86 at pp. 50-51) (summarizing trial
testimony concerning use of grant funding). The grant budget—approved by
the NSF and binding on Mr. Thompson—allowed only $14,788 in direct labor
costs for Mr. Thompson and $4,848 in fringe benefits for both Mr. Thompson
and Dr. Li, for a total of $19,936 in possible compensation to Mr. Thompson.
Trial Ex. 1A. The magistrate judge calculated from trial exhibits that Mr.
Thompson spent $56,781.52 on credit card bills alone. (Docket 86 at p. 50).
Mr. Thompson asserts he used the grant funds for “insurance,
retirement, phone bills, and service charges” which were all allowable
expenses. (Docket 93 at p. 14). These were allowable expenses, but only as
allocated by the grant budget. Without even delving into the credit card
expenditures, Mr. Thompson spent $23,460 on the costs he highlights—far in
excess of the $19,936 in total compensation allowable for his personal use.13
Trial Ex. 10. He further asserts Mr. Poppen should have argued he had
sufficient personal funds to repay the grant funds he spent on his credit card
bills. (Docket 93 at p. 14). Even if true, this argument does not affect the fact
Mr. Thompson spent $56,781.52 of grant funding on his credit card bills.

13In

fact, the total budget for fringe benefits was $4,848—Mr. Thompson
spent $16,847.01 on his health insurance and retirement benefits.
20

Whether he had the ability to pay the credit card bills using non-grant funding
is immaterial.
Continuing this line of reasoning, Mr. Thompson argues he earned the
grant funding he spent on the credit card bills and those cards were in his
company’s name. Id. He also argues his expenditures were allowable
commercialization costs. Id. at pp. 18-19. These arguments are conclusory
and belied by the trial record.14 At trial, the government extensively examined
Mr. Thompson’s credit card expenditures. (CR. Docket 243 at pp. 27-57). That
examination showed the use of these credit cards for shopping, dining, and
travel. See, e.g. id. at p. 55-56. Mr. Thompson does not explain how any of
these charges are related to Isosceles or the grant funding. The only possible
budget item which might allow these expenses is the $14,788 in compensation
to Mr. Thompson. Trial Ex. 1A. In total, as noted above, Mr. Thompson spent
$56,781.52 on the credit card bills. Some of those credit cards were in the
name of other companies owned by Mr. Thompson, Realtronics, Inc. and Black
Hills Office and Computer Supply. (CR. Docket 243 at pp. 44-45). None of the
credit cards were in Isosceles’ name. Id. at p. 68. Mr. Thompson makes no
effort to legitimize any of the specific charges to his credit cards that he paid
using grant funding as approved by the grant budget.

14Mr.

Thompson points the court to federal acquisition regulations in
support of this arguments. (Docket 93 at p. 19). The grant’s general
conditions specifically state the award was not subject to the regulations Mr.
Thompson cites except in the case of contested costs incurred after grant
termination. Trial Ex. 2A at p. 2. Additionally, Mr. Thompson’s expenditures
were unauthorized by the grant budget, regardless of their compliance with the
proffered regulations.
21

Accordingly, Mr. Thompson’s argument that his use of Isosceles’ grant
funding was legitimate is contradicted by the trial record. NSF rules clearly
barred Mr. Thompson from spending tens of thousands of dollars over the
binding budget on his personal expenses. This finding overrules Mr.
Thompson’s second, fourth and eighth objections to the R&R. In his second
objection, Mr. Thompson argues Mr. Poppen’s representation was ineffective
because he did not hire an expert to contradict Dr. Balan’s testimony that Mr.
Thompson’s use of grant funds was illegitimate. (Docket 93 at pp. 9-10). Mr.
Poppen could not have ethically hired an expert to testify falsely—that is, to
testify NSF rules allowed Mr. Thompson to spend grant funding on his personal
expenses in excess of the budget. His fourth objection asserts Mr. Poppen’s
representation was ineffective because he did not present to the jury Mr.
Thompson’s theory that his use of grant funding was legitimate. Id. at pp. 1314. Mr. Poppen had no obligation to present a false theory to the jury. Finally,
Mr. Thompson’s eighth objection asserts the magistrate judge erred in rejecting
his theory. Id. at pp. 17-19. For the reasons given above, these objections are
all overruled.
C.

Remaining ineffective assistance claims

Three of Mr. Thompson’s ineffective assistance claims survive the above
inquiries. He argues Mr. Poppen was ineffective because he failed to disclose
alleged conflicts of a potential government witness who was the father of Mr.
Poppen’s friend. (Docket 93 at pp. 11-13). Mr. Thompson then argues Mr.
Poppen’s “unpreparedness” denied him his right to testify. Id. at pp. 14-15.
22

Finally, he argues Mr. Poppen failed to object when the prosecution presented
evidence broadening the scope of the indictment. Id. at p. 19. The court
rejects these arguments.
To prevail on an ineffective assistance of counsel claim, Mr. Thompson
must make two showings.
First, [he] must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed [him] by the Sixth
Amendment. Second, [he] must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors
were so serious as to deprive [him] of a fair trial, a trial whose result
is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984). “[T]he proper standard for
attorney performance is that of reasonably effective assistance.” Id. “Scrutiny
of counsel’s performance must be highly deferential. There is a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Davis v. United States, 858 F.3d 529, 532 (8th Cir.
2017).
1.

Dr. Helder conflict

Mr. Thompson claims a conflict was created when Dr. Dennis Helder, an
SDSU employee and father of a friend of Mr. Poppen, appeared in
documentation provided to Mr. Poppen in discovery. (Docket 64 at pp. 23-24).
Dr. Helder originally agreed to allow SDSU to pay Dr. Li using funds provided
by Isosceles. (Docket 77 at p. 7). This “payroll pass-through” was the subject
of trial testimony. (Docket 86 at pp. 46-47). Mr. Poppen “made the strategic
decision not to call” Dr. Helder as a witness because his personal knowledge

23

was limited and because other witnesses provided the necessary testimony.
(Docket 77 at p. 7). Mr. Thompson signed a waiver before trial indicating Mr.
Poppen explained his relationship with Dr. Helder and agreeing to continue the
representation. (Docket 77-1). He now alleges Mr. Poppen’s friendship with
Dr. Helder’s son caused him to “refrain[] from investigating and presenting
exculpatory evidence showing [Dr.] Helder’s involvement in fabricating fictitious
receipts, timesheets, and other billing documents[.]” (Docket 93 at p. 12). He
asserts Mr. Poppen’s incompetence convicted him because his “failure to
challenge [Dr.] Helder’s efforts to conceal SDSU’s lack of work on the grant . . .
allow[ed] the jury to accept arguments he withheld payment to SDSU without
cause.” Id. at p. 13.
The factual underpinning of this claim—that Dr. Helder was part of a
conspiracy to fabricate evidence against Mr. Thompson—is conclusory. Mr.
Thompson does not explain what evidence Dr. Helder fabricated or how it
prejudiced him. Even if these allegations were true, Mr. Thompson was not
convicted of defrauding SDSU, but rather of converting the Isosceles grant
funding to his own use. (CR. Dockets 208 at p. 15 & 218 at p. 3). As noted
above, see supra Section IV.B, there was abundant evidence presented at trial
showing Mr. Thompson’s conversion of grant funding. How much, if any, of
that money should have gone to SDSU does not alter the fact Mr. Thompson
converted the money from the NSF.
If Mr. Thompson “can show that ‘an actual conflict of interest adversely
affected his lawyer's performance,’ [the court] will presume prejudice rather
24

than require an affirmative showing[.]” Winfield v. Roper, 460 F.3d 1026, 1039
(8th Cir. 2006) (quoting Cuyler v. Sullivan, 446 U.S. 335, 348 (1980)).15 To
show an actual conflict of interest with an adverse effect, Mr. Thompson must
“identify a plausible alternative defense strategy or tactic that defense counsel
might have pursued, show that the alternative strategy was objectively
reasonable under the facts of the case, and establish that the defense counsel’s
failure to pursue that strategy or tactic was linked to the actual conflict.” Id.
(quoting Covey v. United States, 377 F.3d 903, 908 (8th Cir. 2004)). Mr.
Thompson asserts Mr. Poppen should have called Dr. Helder and others as
witnesses to testify SDSU did no work on the grant and wrongly billed him.
(Docket 92 at p. 12). This testimony would have impeached government
witnesses, in Mr. Thompson’s view. Id.
Mr. Thompson cannot meet the Cuyler standard entitling him to a
presumption of prejudice. Even assuming it would have been a reasonable
defense to show SDSU was improperly seeking money from the Isosceles grant
for work Dr. Qiao or other SDSU employees did not perform, Mr. Thompson
does not explain why Mr. Poppen’s friendship with Dr. Helder’s son caused him
not to pursue that defense. Mr. Thompson’s conclusory assertions that Mr.
Poppen chose not to pursue the defense out of loyalty to the Helder family are

15The

United States Court of Appeals for the Eighth Circuit repeatedly
declined to extend the Cuyler standard quoted here to alleged conflicts outside
the joint representation context. Winfield, 460 F.3d at 1039; see also Noe v.
United States, 601 F.3d 784, 790 (8th Cir. 2010). That court has nevertheless
analyzed conflicts under Cuyler to avoid deciding on the expansiveness of that
standard. Id. The court will follow that example and analyze this conflict
under Cuyler.
25

insufficient. Id. at p. 11. Additionally, as the magistrate judge noted, Mr.
Poppen questioned other witnesses regarding the theory that SDSU employees
failed to perform agreed upon work on the grant. (Docket 86 at p. 111).
Switching back to the Strickland standard, Mr. Thompson cannot show either
deficiency or prejudice when the alleged conflict did not prevent Mr. Poppen
from pursuing his proffered defense by questioning different witnesses.
Finally, Mr. Thompson’s waiver of any conflict was clear and informed. Mr.
Thompson’s objection on this matter is overruled and the R&R is affirmed.
2.

Right to testify

Mr. Thompson asserts he would have testified in his own defense but for
Mr. Poppen’s unpreparedness. (Docket 93 at pp. 14-15). Mr. Thompson’s
version of events is that Mr. Poppen advised him not to testify, pleading
unpreparedness, and he took that advice. Id. In his affidavit, Mr. Poppen
states he “thoroughly advised Mr. Thompson regarding his right to testify” and
that Mr. Thompson “alone” decided not to testify. (Docket 77 at p. 7).
[A] knowing and voluntary waiver of the right [to testify] may be
found based on a defendant’s silence when his counsel rests without
calling him to testify. . . . [U]nder such circumstances the defendant
must act affirmatively rather than apparently acquiescing in his
counsel’s advice that he not testify, and then later claiming that his
will to testify was overcome.
Frey v. Schuetzle, 151 F.3d 893, 898 (8th Cir. 1998) (quoting United States v.
Bernloehr, 833 F.2d 749, 751 (8th Cir. 1987)). In the Eighth Circuit, there is
no “bright-line rule requiring all defendants who do not testify to waive this
right to testify on the record.” Berkovitz v. Minn., 505 F.3d 827, 828 (8th Cir.
2007).
26

Mr. Thompson acknowledges he made his desire to testify known to Mr.
Poppen. (Docket 93 at p. 14). Mr. Poppen informed the court on the record at
trial that he intended to call Mr. Thompson as a witness. (CR. Docket 243 at
p. 209). In response, the prosecutor stated her cross-examination of Mr.
Thompson would be “much more extensive” than other witnesses. Id.
However, the defense rested its case without calling Mr. Thompson and without
Mr. Thompson alerting the court to his desire to testify or any problems
between him and Mr. Poppen. This conduct constitutes a waiver of the right to
testify under Eighth Circuit case law.
In Mr. Thompson’s view, his waiver of the right to testify was forced
because Mr. Poppen told him he was unprepared to call him as a witness.
(Docket 93 at pp. 14-15). The court finds this argument inherently incredible
based on its observation of Mr. Poppen’s performance during the trial. The
court noted at Mr. Thompson’s sentencing its belief that Mr. Thompson “could
not have paid to have the quality of representation in this case that Mr. Poppen
provided.” (CR. Docket 301 at p. 89). In its order denying Mr. Poppen’s motion
to withdraw as counsel after trial, the court, “having observed Mr. Poppen’s
performance at trial,” noted “the skill with which Mr. Thompson’s defense was
presented to the jury.” (CR. Docket 252 at p. 3). The court finds Mr. Poppen
was not unprepared to present Mr. Thompson’s testimony to the jury.
Regardless of this finding, Mr. Thompson cannot complain now about his
waiver of his right to testify. His objection is overruled and the R&R is affirmed
on this point.
27

3.

Broadening the indictment

Mr. Thompson asserts prosecutors constructively amended the
indictment by eliciting testimony he signed into the NSF website using Dr. Li’s
credentials to submit the grant’s final report. (Docket 64 at p. 36). He argues
Mr. Poppen’s failure to object to that testimony constitutes ineffective
assistance of counsel. Id. at pp. 21-28. He also contends the alleged
constructive amendment was a stand-alone constitutional violation meriting
habeas relief. Id. at pp. 35-38. He now argues the magistrate judge erred in
rejecting his arguments on this topic. (Docket 93 at p. 19).
“A constructive amendment arises when the essential elements of the
offense described in the charging instrument are altered, either actually or in
effect, by the prosecutor or the court so that a substantial likelihood exists that
the defendant was convicted of an uncharged offense.” United States v. McDill,
871 F.3d 628, 631 (8th Cir. 2017). “A constructive amendment implicates a
defendant’s Fifth Amendment right to indictment by a grand jury and Sixth
Amendment right to notice of the charges against him.”16 Id. A related concept
is a “variance in the evidence” presented at trial. United States v. Stuckey, 220
F.3d 976, 980 (8th Cir. 2000).
A variance arises when the evidence presented proves facts that are
materially different from those alleged in the indictment. A variance

16The

Eighth Circuit questions whether a finding of constructive
amendment necessitates reversal. United States v. Stephens, 888 F.3d 385,
388 (8th Cir. 2018) (citing United States v. Gill, 513 F.3d 835, 850 (8th Cir.
2008)). Because the court concludes there was no constructive amendment
here, the court need not decide whether such a finding would necessitate
habeas relief.
28

in the evidence affects the defendant’s right to adequate notice
under the Sixth Amendment. When a variance occurs, the charging
document does not change, only the evidence against which the
defendant expected to defend varies. Where the indictment fully and
fairly apprises the defendant of the allegations against which he
must defend, prejudice is absent and any variance is harmless error.
United States v. Buchanan, 574 F.3d 554, 564-65 (8th Cir. 2009) (internal
quotations and citations omitted).
Testimony that Mr. Thompson submitted the final report using Dr. Li’s
credentials did not constructively amend the indictment or improperly vary the
evidence. The government had to establish Mr. Thompson submitted the final
report as an element in counts 3, 6 and 9 of the indictment. (CR. Docket 208
at pp. 6, 9, 12). Given that the final report indicates on its face it was
submitted by Dr. Li, the government had no choice but to prove its case with
evidence Mr. Thompson submitted the final report using Dr. Li’s credentials.
Trial Ex. 4. The government did successfully prove that proposition, see supra
Section III.E, and Mr. Thompson agrees he used Dr. Li’s credentials to submit
the report. (Docket 93 at p. 4).
Mr. Thompson asserts a question asked by the jury during their
deliberation is evidence of constructive amendment.17 (Docket 64 at pp. 3738). In his view, the jury question shows jurors convicted him for improperly
using Dr. Li’s credentials, not for the charged offenses. (Docket 85 at p. 14).
The court disagrees. The jury may have been attempting to resolve the factual

17The

question asked: “Please clarify if the PI is the only person who has
access to the final report – or could Scott have signed in under his own name &
completed the form?” (CR. Docket 215 at p. 1). The court responded by
instructing the jury to use their own recollection of the evidence. Id. at p. 2.
29

questions of whether Mr. Thompson submitted the final report under Dr. Li’s
name or whether Mr. Thompson had the intent to lie to the NSF regarding Dr.
Li’s employment and hours worked when he submitted the final report. In any
case, the jurors had to grapple with questions about who submitted the report
to render a verdict on counts 3, 6, and 9. Their question is therefore not
evidence of constructive amendment.
Because the evidence presented about Mr. Thompson’s use of Dr. Li’s
credentials to submit the final report was critical to establishing an element of
three charged offenses, the court finds that evidence did not constructively
amend or vary the indictment to reach uncharged offenses. Mr. Poppen’s
failure to raise this theory does not constitute ineffective assistance of counsel,
nor does the government’s presentation of this evidence violate Mr. Thompson’s
constitutional rights. The objection is overruled.
D.

Procedural default

The magistrate judge held Mr. Thompson procedurally defaulted on his
claim that the government “subvert[ed] the fact-finding process” in violation of
various constitutional and statutory provisions by presenting false evidence.
(Docket 86 at pp. 117-26) (summarizing the defaulted claims). The magistrate
judge noted Mr. Thompson did not present this claim on direct appeal or show
appropriate cause for his failure to do so.18 Id. at pp. 122, 126. In his
objections, Mr. Thompson argues his procedural default should be excused
because of Mr. Poppen’s alleged incompetence. (Docket 93 at pp. 22-24). He

18Mr.

Thompson did not appeal his criminal conviction.
30

asserts Mr. Poppen’s failure to “investigate law, expert witnesses, or
exculpatory evidence” prevented him from appealing, presumably because the
alleged failures resulted in a lack of appropriate evidence for direct appeal. Id.
at p. 23. The court rejects these arguments.
“Habeas review is an extraordinary remedy and will not be allowed to do
service for an appeal.” Bousley v. United States, 523 U.S. 614, 621 (1998)
(internal quotations omitted). “[A] petitioner may not raise an issue before the
district court for the first time in a § 2255 motion if the issue was not
presented on direct appeal from the conviction.” Jennings v. United States,
696 F.3d 759, 762 (8th Cir. 2012). “Where a defendant has procedurally
defaulted a claim by failing to raise it on direct review, the claim may be raised
in habeas only if the defendant can first demonstrate either cause and actual
prejudice or that he is actually innocent.” Bousley, 523 U.S. at 622 (internal
quotations and citations omitted).
In order to establish a valid claim of actual innocence, a defendant
must show factual innocence, not simply legal insufficiency of
evidence to support a conviction. Accordingly, [the court] will
overturn [a] conviction only if he can demonstrate, in light of all the
evidence, that it is more likely than not that no reasonable juror
would have convicted him. This is a strict standard; generally, a
petitioner cannot show actual innocence where the evidence is
sufficient to support a [] conviction.
McNeal v. United States, 249 F.3d 747, 749-50 (8th Cir. 2001).
“The mere fact that counsel failed to recognize the factual or legal basis
for a claim, or failed to raise the claim despite recognizing it, does not
constitute cause for a procedural default.” Murray v. Carrier, 477 U.S. 478,
486 (1986).
31

[T]he question of cause for a procedural default does not turn on
whether counsel erred or on the kind of error counsel may have
made. So long as a defendant is represented by counsel whose
performance is not constitutionally ineffective under the standard
established in Strickland v. Washington, we discern no inequity in
requiring him to bear the risk of attorney error that results in a
procedural default. Instead, we think that the existence of cause for
a procedural default must ordinarily turn on whether the prisoner
can show that some objective factor external to the defense impeded
counsel’s efforts[.]”
Id. at 488. “If a prisoner fails to demonstrate cause, the court need not
address prejudice.” Cagle v. Norris, 474 F.3d 1090, 1099 (8th Cir. 2007).
Mr. Thompson did not show cause for his procedural default. Mr.
Poppen’s alleged errors do not constitute cause for default unless they rise to
the level of ineffective assistance of counsel. Murray, 477 U.S. at 488. The
court overruled all of Mr. Thompson’s objections on the subject of ineffective
assistance. See supra Sections IV.A-C. And as noted above, the court already
expressed its view Mr. Poppen provided excellent assistance to Mr. Thompson.
See supra Section IV.C.2. The court finally notes Mr. Thompson alleges Mr.
Poppen advised him to “pursue a habeas appeal and NOT a direct appeal[.]”
(Docket 93 at p. 20). If true, this is the exact sort of error internal to the
attorney-client relationship the Supreme Court determined does not constitute
cause for procedural default. Murray, 477 U.S. at 488. Mr. Thompson’s
argument his procedural default should be excused because of Mr. Poppen’s
alleged ineffective assistance of counsel is barred by case law and lacks factual

32

support.19 The court need not address whether the default actually prejudiced
Mr. Thompson.
Because Mr. Thompson did not show cause for his default, the court
must then consider whether his actual innocence opens the door to judicial
scrutiny of his false evidence claims. The court previously rejected Mr.
Thompson’s actual innocence argument, which he grounded in his visa theory.
See supra Section IV.A. Additionally, the court rejected Mr. Thompson’s
motions for acquittal and for a new trial. (CR. Docket 279). Mr. Thompson
proffers no evidence on this point the court has not already reviewed and
rejected.
Mr. Thompson can neither show cause for his procedural default nor his
actual innocence. Accordingly, his false evidence claims are procedurally
defaulted. His objection to the R&R on this point is overruled.
E.

Evidentiary hearing

The magistrate judge concluded Mr. Thompson’s motion did not merit an
evidentiary hearing. (Docket 86 at p. 137). Mr. Thompson objects. (Docket 93
at p. 25). Mr. Thompson’s objection does not grapple with the law on habeas

19Mr.

Thompson asserts “procedural default does not apply to claims that
require development of facts outside the trial record.” (Docket 93 at p. 22)
(emphasis removed). He supports this argument with a citation to Bousley. Id.
The cited page distinguishes Waley v. Johnston, a 1942 case where the
Supreme Court held a habeas petition can extend to procedurally defaulted
cases where the facts are outside the scope of the “record and their effect on
the judgment was not open to consideration and review on appeal.” 316 U.S.
101, 104 (1942). Like the petition at issue in Bousley, Mr. Thompson’s claim
could have been “fully and completely addressed on direct review based on the
record” had he raised his false evidence claims to the court during or after his
trial and thence to the Eighth Circuit. Bousley, 523 U.S. at 622.
33

evidentiary hearings, but instead relates to his argument against procedural
default. Id. Given his pro se status, the court will nevertheless examine the
magistrate judge’s conclusion on this point.
“Ordinarily, the district court must hold an evidentiary hearing and make
factual findings before ruling on the merits of the motion.” Adejumo v. United
States, 908 F.3d 357, 361 (8th Cir. 2018).
A § 2255 motion may be dismissed without a hearing if (1) the
criminal defendant’s allegations, accepted as true, would not entitle
him or her to relief; or (2) the allegations cannot be accepted as true
because they are contradicted by the record, are inherently
incredible, or are conclusions rather than statements of fact.
Hyles v. United States, 754 F.3d 530, 534 (8th Cir. 2014).
For the reasons given throughout this order, the court finds the facts Mr.
Thompson alleges are “contradicted by the record,” “inherently incredible,”
“conclusions rather than statements of fact,” or, even if true, would not merit
habeas relief. Id. As the magistrate judge found, “[t]here is no issue of fact or
credibility to be determined by holding an evidentiary hearing.”20 (Docket 86 at
p. 137). The court overrules Mr. Thompson’s objection and denies his request
for a hearing.

20The

court carefully reviewed Mr. Thompson’s filings and did not discern
any allegation that Mr. Poppen refused to file a direct appeal of Mr. Thompson’s
conviction against his will. Such a claim would merit an evidentiary hearing.
Witthar v. United States, 793 F.3d 920, 923 (8th Cir. 2015) (“Because failure to
file a requested appeal is deficient performance and because we presume
prejudice, these allegations alone generally are sufficient to warrant a
hearing.”). Mr. Thompson instead argues other supposed deficiencies in Mr.
Poppen’s performance resulted in his failure to appeal. (Docket 93 at pp. 2224). Under these circumstances, the court does not believe Eighth Circuit case
law requires an evidentiary hearing into the question of Mr. Thompson’s failure
to appeal.
34

ORDER
For the reasons given above, it is
ORDERED that Mr. Thompson’s objections to the magistrate judge’s
report and recommendation (Docket 93) are overruled.
IT IS FURTHER ORDERED that the report and recommendation (Docket
86) is adopted in full.
IT IS FURTHER ORDERED that the government’s motion to dismiss Mr.
Thompson’s § 2255 motion (Docket 75) is granted.
IT IS FURTHER ORDERED that Mr. Thompson’s amended § 2255 motion
(Docket 36) is denied with prejudice.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 2253(c) and
Rule 11 of the Rules Governing Section 2255 Cases, the court declines to issue
a certificate of appealability. A certificate may issue “only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2) (emphasis added). A “substantial showing” under this section is a
showing that “reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.
473, 484 (2000). In other words, a “substantial showing” is made if a “court
could resolve the issues differently, or the issues deserve further proceedings.”
Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). Mr. Thompson has not made
a substantial showing of the denial of a constitutional right.
Although the court declines to issue a certificate of appealability, Mr.
Thompson may timely seek a certificate of appealability from the United States
35

Court of Appeals for the Eighth Circuit under Federal Rule of Appellate
Procedure 22. See Governing Rule 11(a); Fed. R. App. P. 22.
Dated May 29, 2019.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

36