Holloway v. USA

Filing 19

MEMORANDUM DECISION AND ORDER Denying 1 Defendant's Motion to Vacate, Set Aside or Correct Sentence. Because the court concludes Holloway has not shown a violation of his right to effective assistance of counsel or of his right to due process, his Motion to Vacate, Set Aside or Correct Sentence is DENIED. The Clerk of Court is ordered to close the case. Signed by Judge Robert J. Shelby on 4/16/18. (dla)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
ROBERT LEE HOLLOWAY,
Petitioner,
v.

MEMORANDUM DECISION AND
ORDER DENYING DEFENDANT’S
MOTION TO VACATE, SET ASIDE OR
CORRECT SENTENCE

UNITED STATES OF AMERICA,
Case No. 2:17-cv-267
Respondent.
Judge Robert J. Shelby
Petitioner Robert Lee Holloway was convicted in August 2014 of four counts of wire
fraud and one count of making and subscribing a false tax return. He was subsequently
sentenced to 225 months in prison. Holloway has now filed a Motion to Vacate, Set Aside or
Correct the Sentence under 28 U.S.C. Section 2255, arguing the sentence violated the
Constitution because he received ineffective assistance of counsel and was denied due process.
For the reasons stated below, the motion is denied.1
BACKGROUND
Holloway was convicted of wire fraud and making a false tax return in connection with
an investment scheme he operated through his company, US Ventures. In the months leading up
to trial, Holloway and his court-appointed attorney had frequent conflicts regarding strategy and
scheduling. Holloway’s attorney repeatedly stated that he believed Holloway had a mental
illness that prevented him from making sound decisions, and Holloway repeatedly stated that he
1

Section 2255 requires that the court hold a hearing “[u]nless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). The court finds the record in this
case conclusively shows that Holloway is not entitled to relief, and therefore declines to hold a hearing.

did not believe that to be the case, did not want to undergo mental health evaluations, and did not
want to rely on any mental health evidence as the basis for a defense. The disagreement on this
point came to a head when Holloway, without notifying his court-appointed attorney, retained a
new attorney six days before the trial was scheduled to begin. After conferring with the court
and with his original and new counsel, Holloway ultimately decided to proceed to trial with only
his court-appointed counsel.
During trial, the prosecution submitted evidence of more than 250 defrauded investors.
Seven investors testified at trial about their investments with US Ventures and subsequent losses.
The prosecution also submitted evidence and testimony from a court-appointed receiver for a
related civil case against US Ventures. Holloway was convicted on all five counts.
The court at sentencing applied a guideline that enhanced the sentence in cases involving
more than 250 victims and sentenced Holloway to 225 months in prison. Holloway seeks to
vacate, set aside, or correct his sentence under 28 U.S.C. Section 2255 on the grounds that he
received ineffective assistance of counsel for two reasons: (1) there was a “total breakdown of
communications” with his attorney, and (2) his attorney failed to object to the guideline
calculation based on more than 250 victims. Holloway also argues he was denied due process
because the Receiver was unlawfully involved with the criminal prosecution and, as a result, the
prosecution withheld evidence that would have been favorable to Holloway’s defense.
ANALYSIS
Under Section 2255, a prisoner may move the court to vacate, set aside, or correct a
sentence on one of four grounds: (1) the sentence was unlawful; (2) the court lacked jurisdiction
to impose the sentence; (3) the sentence exceeded the maximum authorized by law; or (4) the

2

sentence is otherwise subject to a collateral attack.2 Holloway argues the first ground applies
because he was denied his Sixth Amendment right to effective assistance of counsel and because
the prosecution violated his due process rights. The court will address these issues in turn.
I.

Ineffective Assistance of Counsel

Holloway argues he was denied his Sixth Amendment right to effective assistance of
counsel for two reasons: (1) there was “a total breakdown of communications” between
Holloway and his original trial counsel, and (2) his trial counsel overlooked a valid objection as
to the number of victims, which affected the application of the sentencing enhancement.
A. Communication breakdown
The Sixth Amendment guarantees the right to the effective assistance of counsel.3 To
prove the denial of this right, a defendant must show that (1) counsel’s performance fell below an
objective standard of reasonableness and (2) there is a reasonable probability that, absent the
deficient performance, the result of the proceeding would have been different.4
In some circumstances, “a presumption of ineffectiveness arises,” and the court need not
examine counsel’s actual performance.5 The Tenth Circuit has held that a “complete breakdown
in communication between an attorney and client may give rise to such a presumption.”6 In
deciding whether a complete breakdown in communication rendered counsel’s performance
ineffective, the court looks to four factors: (1) whether the defendant made a timely motion
requesting new counsel, (2) whether the trial court adequately inquired into the matter, (3)
whether the attorney/client conflict “was so great that it resulted in a total lack of communication
2

28 U.S.C. § 2255.

3

Strickland v. Washington, 466 U.S. 668, 686 (1984).

4

Id. at 687–88.

5

United States v. Soto Hernandez, 849 F.2d 1325, 1328 (10th Cir. 1988).

6

Id.

3

preventing an adequate defense,” and (4) whether the defendant “substantially and unjustifiably
contributed to the breakdown in communication.”7 Examples of complete breakdowns that
result in a total lack of communication include circumstances in which the defendant “would not,
in any manner whatsoever, communicate” with his attorney or where “the attorney/client
relationship had been a stormy one with quarrels, bad language, threats and counter-threats.”8
There is no real dispute on the first two factors, as Holloway filed a motion to retain new
counsel six days before trial and the court held a hearing to discuss the motion. As to the third
factor, the court concludes that there was not “a total lack of communication preventing an
adequate defense.”9
There was indeed conflict in Holloway’s relationship with his attorney: Holloway
provided emails between himself and counsel in which Holloway repeatedly expressed his
displeasure with counsel’s strategy. Holloway refused to speak with counsel on the phone and
resorted only to email. Counsel urged Holloway to consider a defense based on the argument
that he was suffering from a mental disorder, and Holloway repeatedly rebuffed the idea, stating
that he believed counsel was “on a war path” to have Holloway “committed.”10 Emails between
the two evince a tense relationship, with Holloway stating he felt “ambushed” and “humiliated”
by his counsel’s strategy.11 The conflict came to a head when Holloway retained new counsel
without notifying his original counsel. However, there was not a complete breakdown in
communication. The record shows that Holloway’s counsel replied to all of Holloway’s emails
within a day. Counsel disagreed with Holloway’s perception of the case but discussed his
7

Romero v. Furlong, 215 F.3d 1107, 1113 (10th Cir. 2000) (citation omitted).

8

Soto Hernandez, 849 F.2d at 1325 (emphasis in original) (internal quotation marks omitted).

9

Romero, 215 F.3d at 1113.

10

Dkt. 1 at 97.

11

Dkt. 1 at 79, 97.

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attempts to compromise on scheduling issues and reiterated his ethical obligation to respect
Holloway’s wishes regarding a potential mental health defense. Even after Holloway retained
new counsel, Holloway and his original counsel exchanged civil emails about the change in
representation, in which Holloway “sincerely thank[ed]” counsel for his help.12 The relationship,
while tense, did not dissolve into a total communication breakdown. Holloway has thus failed to
meet the third factor of the “complete breakdown” test.
Finally, there is evidence that Holloway substantially and unjustifiably contributed to any
breakdown in communication by initially refusing to work with his counsel or the prosecution on
scheduling issues. Taking all four factors together, the court concludes that Holloway did not
receive ineffective assistance of counsel as the result of a communication breakdown.
B. Sentencing enhancement
Holloway also argues his Sixth Amendment right was violated because his counsel erred
in not objecting to the sentencing enhancement based on the number of victims.
As with Holloway’s first Sixth Amendment argument, he must show both that his
counsel’s performance was constitutionally deficient and that the error prejudiced him.13 An
attorney’s failure to challenge a sentencing enhancement may constitute deficient performance
under Strickland. 14 But such an error is not always prejudicial.15
In this case, the court applied U.S.S.G. Section 2B1.1(b)(2)(C), which at the time
provided for a sentencing enhancement where a crime involves more than 250 victims.16 The

12

Dkt. 1 at 104.

13

Strickland, 466 U.S. at 687–88.

14

See United States v. Kissick, 69 F.3d 1048, 1055 (10th Cir. 1995).

15

Id. (citing cases in which attorney’s failure to argue for potential reduction in defendant’s sentence was not

prejudicial).
16

This section was amended in 2015.

5

presentence investigation report stated that there were over 290 victims. Holloway contends
there was no evidence presented at trial showing that each of the purported victims actually
suffered a loss. Rather, Holloway argues, the only evidence of loss came from seven witnesses at
trial and thus the sentencing enhancement should have been based on U.S.S.G. Section
2B1.1(b)(2)(A), which addresses crimes involving fewer than ten victims.17
Regardless of whether Holloway’s counsel erred in not objecting on this basis, Holloway
has not shown that the error was prejudicial. The prosecution presented evidence of more than
250 investors in US Ventures, “close to a hundred” investors in US Ventures International, and
24 investors in another group involved with Holloway—much more than are needed to meet the
requirement of U.S.S.G. Section 2B1.1(b)(2)(C). Holloway argues that some investors did not
suffer actual loss, but he points to no evidence regarding how many investors should not be
considered victims. Without this evidence, the court cannot say that “the defendant has met the
burden of showing that the decision reached would reasonably likely have been different absent
the errors.”18 Thus, Holloway has not shown that his attorney’s failure to object to the number of
victims constituted ineffective assistance of counsel.
II.

Due Process

Holloway argues the prosecution violated his right to due process because it suppressed
evidence from the court-appointed Receiver that was material to Holloway’s criminal case. To
remedy this alleged error, Holloway asks the court to order the prosecution to produce the entire
record regarding the Receiver’s duties in the related civil case.
Under Brady v. Maryland, a defendant’s due process rights are violated where the
prosecution suppresses evidence that is favorable to the defendant and “material either to guilt or
17

This section was amended in 2015.

18

Strickland, 466 U.S. at 696.

6

to punishment.”19 To establish a Brady violation, the defendant bears the burden of proving
three factors: “(1) that the prosecution suppressed the evidence, (2) that the evidence was
favorable to the accused, and (3) that the evidence was material.”20
Holloway alleges the Receiver inappropriately participated in the DOJ investigation and
that the prosecutor relied on information from the Receiver but then failed to make that
information available to Holloway. The prosecution, in two separate letters to Holloway’s
attorney, denied these allegations, stating that the Receiver conducted a separate investigation
and did not participate in any of the prosecution team’s decisions. The prosecution also stated
that it did receive some information from the Receiver but that it produced all of that information
in criminal discovery.
Holloway focuses on the first prong of the Brady test, arguing that because the Receiver
“participated in the investigation . . . by providing information to the government,” his
knowledge of possibly exculpatory evidence can be imputed to the prosecutor.21 However,
Holloway concedes, “a receiver is not part of the executive branch, but, instead, is appointed as
an officer of the court to prevent the dissipation of assets.”22 The court concludes the Receiver,
as an officer of the court, was not part of the prosecution team.23

19

373 U.S. 83, 87 (1963).

20

United States v. Gonzalez-Montoya, 161 F.3d 643, 649 (10th Cir. 1998) (citation omitted).

21

Dkt. 1 at 46.

22

Dkt. 1 at 10.

23

See United States v. Feathers, No. 14-CR-00531-LHK, 2016 WL 7337518, at *16 (N.D. Cal. Dec. 19, 2016),

reconsideration denied, No. 14-CR-00531-LHK-1, 2017 WL 783947 (N.D. Cal. Mar. 1, 2017) (“[T]he Receiver and
the Receiver's attorneys are not ‘involv[ed] in the investigation’ in a manner that places the Receiver’s and the
Receiver’s attorneys’ records in the U.S. Attorney’s Office’s possession, custody, or control.”) (alteration in
original).

7

In any case, Holloway has not met his burden on the second and third prongs. Holloway
concedes that he “can only offer conjecture” as to whether the material from the Receiver was
favorable to him or material to his defense. Mere speculation that the material would be
favorable and material is insufficient for a Brady claim.24 Thus, Holloway has not met his
burden of showing a due process violation.
CONCLUSION
Because the court concludes Holloway has not shown a violation of his right to effective
assistance of counsel or of his right to due process, his Motion to Vacate, Set Aside or Correct
Sentence25 is DENIED. The Clerk of Court is ordered to close the case.
SO ORDERED this 16th day of April, 2018.
BY THE COURT:

________________________________________
ROBERT J. SHELBY
United States District Judge

24

United States v. Acosta-Gallardo, 656 F.3d 1109, 1117 (10th Cir. 2011); see also Godlock v. Fatkin, 84 F. App’x

24, 29 (10th Cir. 2003).
25

Dkt. 1.

8