USA v. Avery

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
MARK J. AVERY,
Defendant.
Case No. 3:07-cr-00028-RRB
SUPPLEMENTARY ORDER ON
§ 2255 MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE
(Dockets 623 & 641)
I. 	INTRODUCTION
This matter comes before the Court on the U.S. Court of Appeals for the
Ninth Circuit’s remand order at Docket 660. The parties have filed updated opposition and
reply memoranda.1 	For the reasons described in this order, the Court concludes that an
evidentiary hearing is required for Claim 5 of the original § 2255 motion. 	However, the
original § 2255 motion’s other claims will be denied.2
1 Docket 677 (Opposition); Docket 683 (Reply).
2 This order does not address or reconsider the claims from Avery’s amended § 2255 motion.
The Court already has ruled on those claims, see Docket 655, and they remain to be resolved by the Ninth
Circuit on appeal.
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II. 	BACKGROUND
A more complete account of this case’s factual and procedural background
may be found in the Court’s previous orders.3 To briefly summarize, Defendant Mark J.
Avery pleaded guilty in 2007 to several counts of honest-services wire fraud and money
laundering, and this Court sentenced him to 102 months in prison. 	Following the
U.S. Supreme Court’s decision in Skilling v. United States,4 which limited the scope of the
honest-services fraud statute, Avery filed a motion for habeas corpus relief under 28 U.S.C.
§ 2255, alleging that he actually was innocent of the crime of honest-services fraud as
defined by Skilling. The Court denied Avery’s motion, but the Ninth Circuit vacated and
remanded.5 	On remand, the Court vacated Avery’s conviction.6 	The Government then
obtained a new indictment against Avery for multiple counts of money- and property-based
wire fraud, money laundering, bank fraud, and making false statements to a bank. In 2016,
a jury found Avery guilty of most of the counts, and the Court sentenced him to 160 months
in prison. 	The Ninth Circuit affirmed Avery’s conviction on appeal,7 and the Supreme
Court denied his petition for certiorari.8
On January 28, 2020, Avery, proceeding pro se, filed this second motion to
vacate his sentence under § 2255.9 The Court appointed counsel to represent Avery for the
3 E.g., Docket 655, available at 2021 WL 149676; Docket 213, available at 2014 WL 4546021;
see also United States v. Avery, 719 F.3d 1080 (9th Cir. 2013); United States v. Avery, 747 F. App’x 482
(9th Cir. 2018).
4 561 U.S. 358 (2010).
5 Avery, 719 F.3d at 1082–86.
6 Docket 155.
7 Avery, 747 F. App’x at 483–86.
8 Docket 621.
9 Docket 623.
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purposes of the motion.10 Avery’s counsel then filed an amended § 2255 motion,11 which
the Government opposed.12 	On January 13, 2021, the Court issued a decision denying
Avery’s motion.13 The Court issued a Certificate of Appealability,14 and Avery appealed.15
On appeal, the Ninth Circuit noted that the Court’s decision only addressed
the claims raised in the amended motion Avery’s counsel had filed, not the claims Avery
had raised in his original pro se motion.16 	The Ninth Circuit remanded the case to this
Court “for the limited purpose of allowing the district court to consider the claims raised
in the pro se § 2255 motion in the first instance.”17 The Government then filed an updated
10 Dockets 630 (text entry), 632, 633.
11 Docket 641.
12 Docket 651.
13 Docket 655.
14 Docket 659.
15 Docket 656.
16 Docket 665 at 1–2.
17 Docket 665 at 1. It is not clear to the Court why not addressing Avery’s pro se claims was
erroneous. The Ninth Circuit’s remand order did not elaborate on its legal reasoning. See Docket 665 at
1–2. In the Court’s understanding, because Avery’s court-appointed counsel had filed an amended § 2255
motion, addressing Avery’s pro se § 2255 claims would have contravened both the Federal and Local Rules
of Civil Procedure.
First, under the Federal Rules of Civil Procedure, it is a “well-established doctrine” that an amended
pleading supersedes the original pleading it amends. Koala v. Khosla, 931 F.3d 887, 895 (9th Cir. 2019)
(quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992)). The Ninth Circuit has long held that
once a pleading has been amended, “the original pleading no longer performs any function and is ‘treated
thereafter as non-existent.’” Ferdik, 963 F.2d at 1262 (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.
1967)). The Federal Rules of Civil Procedure apply to § 2255 proceedings, see Rule 12, Rules Governing
Section 2255 Proceedings for the United States District Courts (2019), and other district courts in this circuit
have applied the amended-pleading doctrine to § 2255 motions. E.g., United States v. Shields, No. 12-cr-
00410-BLF-1, 2018 WL 4181960, at *5 (N.D. Cal. Aug. 30, 2018); United States v. Shepard, No. CV 15-
504-TUC-CKJ, 2018 WL 2387946, at *2 (D. Ariz. May 25, 2018); United States v. Twyman, No. LA CR
07-01142-VBF-4, 2016 WL 4072486, at *1 (C.D. Cal. July 11, 2016).
Second, the District of Alaska Local Civil Rules—which apply to criminal cases, D. Alaska Loc.
Crim. R. 1.1(b), and to habeas proceedings, D. Alaska Loc. Civ. R. 81.1—prohibit parties from proceeding
pro se once they have appeared through counsel. D. Alaska Loc. Civ. R. 11.1(a)(3). Judges of this district
have interpreted this rule to prohibit habeas petitioners from simultaneously proceeding on both their
original pro se petitions and their amended petitions filed by counsel. See, e.g., United States v. Lampkin,
No. 3:15-cr-00005-SLG-MMS-5, CM/ECF No. 1028, at *2 (D. Alaska Dec. 20, 2021). For these reasons,
the Court believed that addressing Avery’s pro se claims would have been erroneous. 	However, in
accordance with the Ninth Circuit’s order, the Court now addresses Avery’s pro se claims.
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opposition memorandum,18 and Avery filed a reply memorandum authored by counsel.19
The Court now addresses Avery’s original pro se claims.
III. 	LEGAL STANDARDS
A. 	Section 2255—In General
Under 28 U.S.C. § 2255, a prisoner in custody pursuant to a sentence
imposed by a U.S. federal court may file a motion to vacate, set aside, or correct his
sentence on the ground that “the sentence was imposed in violation of the Constitution or
laws of the United States, or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.”20
“Unless the motion and the files and records of the case conclusively show
that the prisoner is entitled to no relief, the court shall cause notice thereof to be served
upon the United States attorney, grant a prompt hearing thereon, determine the issues and
make findings of fact and conclusions of law with respect thereto.”21 “If the motion is not
dismissed, the judge must review the answer, any transcripts and records of prior
proceedings, and any materials submitted . . . to determine whether an evidentiary hearing
is warranted.”22 “The district court may deny a section 2255 motion without an evidentiary
hearing only if the movant’s allegations, viewed against the record, either do not state a
18 Docket 677.
19 Docket 683.
20 28 U.S.C. § 2255(a).
21 28 U.S.C. § 2255(b).
22 Rule 8(a), Rules Governing Section 2255 Proceedings for the United States District Courts.
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claim for relief or are so palpably incredible or patently frivolous as to warrant summary
dismissal.”23
If the court determines that relief is warranted, “the court shall vacate and set
the judgment aside and shall discharge the prisoner or resentence him or grant a new trial
or correct the sentence as may appear appropriate.”24 	“The ‘general rule’ is that
constitutional errors do not require reversal of a conviction, but are susceptible to harmless
error review.”25 A constitutional violation usually is harmless unless, “in light of the record
as a whole,” the violation had “a substantial and injurious effect or influence in determining
the jury’s verdict.”26 “This inquiry is not a matter of pure logic, but of sensitive judgment
based on the case presented to the jury by the prosecution and defense.”27
B. 	Section 2255—Procedural Default
“The general rule in federal habeas cases is that a defendant who fails to raise
a claim on direct appeal is barred from raising it on collateral review.”28 	“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
23 United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989) (per curiam); see also United States
v. Rodriguez, 49 F.4th 1205, 1213 (9th Cir. 2022) (“[A] hearing is mandatory whenever the record does not
affirmatively manifest the factual or legal invalidity of the petitioner’s claims.” (quoting Baumann v. United
States, 692 F.2d 565, 571 (9th Cir. 1982)).
24 28 U.S.C. § 2255(b).
25 United States v. Montalvo, 331 F.3d 1052, 1056–57 (9th Cir. 2003) (per curiam) (quoting
Arizona v. Fulminante, 499 U.S. 279, 306–07 (1991)).
26 Id. at 1057–58 (emphasis removed) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).
Certain “structural” constitutional errors are never harmless. These include total deprivations of the right
to counsel at trial, a judge who was not impartial, unlawful exclusion of members of the defendant’s race
from a grand jury, violations of the right to self-representation at trial, and violations of the right to a public
trial. Id. at 1057.
27 Id. at 1058.
28 Sanchez-Llamas v. Oregon, 548 U.S. 331, 350–51 (2006).
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actual ‘prejudice’, or that he is ‘actually innocent.’”29 	“The procedural-default rule is
neither a statutory nor a constitutional requirement, but it is a doctrine adhered to by courts
to conserve judicial resources and to respect the law’s important interest in the finality of
judgments.”30 	The procedural default rule does not apply to ineffective assistance of
counsel allegations, however, primarily because in most cases the record is not sufficiently
developed at the direct appeal stage to properly evaluate them.31
A similar default rule applies to issues that were raised on direct appeal and
expressly rejected by the appellate court.32
IV. 	DISCUSSION
Avery’s pro se § 2255 motion asserts eight violations of his constitutional
rights:
(1) 	Violation of his Fifth Amendment due process rights due to
lack of a “fair and impartial judge”;33
(2) 	Violation of his Fifth Amendment double jeopardy rights;34
29 Bousley v. United States, 523 U.S. 614, 622 (1998) (citations omitted) (quoting Murray v.
Carrier, 477 U.S. 478, 485, 496 (1986)).
30 Massaro v. United States, 538 U.S. 500, 504 (2003).
31 Id. at 505–09.
32 See United States v. Redd, 759 F.2d 699, 701 (9th Cir. 1985) (per curiam) (“[Petitioner] raised
this precise claim on direct appeal, and this court expressly rejected it. Therefore, this claim cannot be the
basis of a § 2255 motion.”); Egger v. United States, 509 F.2d 745, 748 (9th Cir. 1975) (“Issues raised at
trial and considered on direct appeal are not subject to collateral attack under 28 U.S.C. § 2255.”); see also,
e.g., United States v. Ramirez, 327 F. App’x 751, 752 (9th Cir. 2009) (“[Petitioner] is barred from using a
§ 2255 motion to relitigate issues decided on direct appeal.”).
33 Docket 623 at 4–7.
34 Id. at 8–10.
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(3) 	Violation of his Fifth Amendment due process rights and
Fourth Amendment rights due to “unlawful[] seizure without a warrant” and
“imprison[ment] without judicial process”;35
(4) 	Violation of his Sixth Amendment right to effective assistance
of 	counsel 	by 	defense 	attorney 	Scott 	Dattan’s 	alleged 	failure 	to 	record 	an
interrogation;36
(5) 	Violation of his Sixth Amendment right to effective assistance
of counsel by defense attorney Michael Dieni’s alleged failure to “investigate” and
“present a competent defense to the jury,” as well as his allegedly poor “personal
interaction” with Avery;37
(6) 	Violation 	of 	his 	Sixth 	Amendment 	confrontation 	rights
“because the trial court allowed testimony from dead witnesses”;38
(7) 	Violation of his Fifth Amendment due process rights due to the
inclusion of two distinct parties in a single indicted charge;39 and
(8) 	Violation of his Fifth Amendment due process rights under the
facial provisions of the Jencks Act and Rule 16 of the Federal Rules of Criminal
Procedure.40
The Court addresses each allegation in turn.
35 Id. at 11–14.
36 Id. at 15–16.
37 Id. at 17–44.
38 Id. at 45–46.
39 Id. at 47–48.
40 Id. at 49–50.
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A. 	Avery’s Fifth Amendment Right to a “Fair and Impartial Judge”
Avery first asserts that his sentence violates his Fifth Amendment right to
due process because, allegedly, the Court was so biased against him that the presiding judge
“functioned as an adjunct to the prosecution.” Avery alleges that:
• 	The Court “took no action for weeks” after the Ninth Circuit ruled that Avery had
shown “actual innocence” sufficient to excuse procedural default of his first § 2255
motion, thereby “keeping an innocent man imprisoned”;
• 	The Court denied Avery’s motion for substitution of counsel, saying that Avery
would never be satisfied with “any attorney”;
• 	The Court sua sponte suggested a jury instruction on deliberate ignorance;
• 	At sentencing, the Court told Avery that he had been “delusional” to take his case
to trial; and
• 	Other prisoners told Avery that they overheard court personnel “talking shit” about
Avery after his sentencing.41
Avery asserts that these allegations establish that the Court “did not administer [his] case
fairly and impartially, and that [he] suffered prejudice as a result.” He seeks to have venue
transferred out of the District of Alaska, asserting that he cannot otherwise “get a fair and
impartial review of this motion.”42
The 	Government 	opposes 	Avery’s 	claim, 	maintaining 	that 	the 	record
establishes a lack of any evidence of judicial bias against Avery. The Government points
41 Id. at 4–6.
42 Id. at 6.
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out that the legal rulings Avery cites as evidence of judicial bias were affirmed on appeal.
It further asserts that Avery has neither provided evidence of judicial bias nor demonstrated
the appearance of any such bias. 	The Government concludes that “Avery’s claims,
summarized, establish nothing more [than] being dissatisfied with the court’s rulings
against him.”43
The Court interprets Avery’s allegation as a combined habeas claim and
motion for recusal.44 The Court first addresses Avery’s motion for recusal, then addresses
his habeas claim.
(1) 	Avery has not demonstrated sufficient basis for judicial recusal
The Court first concludes that Avery has not made a timely and sufficient
showing that would warrant judicial recusal. 	Under both 28 U.S.C. § 144 and § 455, an
allegation of a judge’s bias or prejudice warrants recusal when “a reasonable person with
knowledge of all the facts would conclude that the judge’s impartiality might reasonably
be questioned.”45 Nothing in the record or in Avery’s motion indicates that this standard
is met here.
As an initial matter, several of Avery’s allegations reference allegedly unfair
or incorrect rulings as evidence of the Court’s bias against him. But the Court’s rulings in
question—denying Avery’s motion for substitution of counsel and issuing a deliberate-
43 Docket 677 at 21–27.
44 To the extent that Avery’s § 2255 motion includes a motion for judicial recusal, his motion
contravenes D. Alaska Loc. Civil Rule 7.1(e), which requires all motions to be filed separately unless a
specific rule provides otherwise.
45 Glick v. Edwards, 803 F.3d 505, 508 (9th Cir. 2015) (quoting United States v. Studley, 783 F.2d
934, 939 (9th Cir. 1986)).
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ignorance jury instruction sua sponte—were neither unfair nor incorrect. Avery challenged
both rulings on direct appeal, and the Ninth Circuit affirmed them both.46 	These rulings
are evidence of sound legal judgment by the Court, not personal bias or prejudice.
Nor do the statements Avery attributes to the Court constitute a basis for
recusal. Avery has submitted no affidavits in support of his assertions. The statutory text
of § 144 requires motions for recusal to be supported by a “timely and sufficient”
affidavit.47 A failure to file such an affidavit, as is the case here, defeats a party’s allegation
of bias.48
But even if Avery had submitted an affidavit averring the factual allegations
in his motion, the Court still would conclude that recusal was not warranted. With respect
to allegations of judicial bias, the Supreme Court has explained that
opinions formed by the judge on the basis of facts introduced
or events occurring in the course of the current proceedings, or
of prior proceedings, do not constitute a basis for a bias or
partiality motion unless they display a deep-seated favoritism
or antagonism that would make fair judgment impossible.
Thus, judicial remarks during the course of a trial that are
critical or disapproving of, or even hostile to, counsel, the
parties, or their cases, ordinarily do not support a bias or
partiality challenge.49
46 Avery, 747 F. App’x at 484–85.
47 See 28 U.S.C. § 144.
48 United States v. Azhocar, 581 F.2d 735, 738 (9th Cir. 1978).
49 Liteky v. United States, 510 U.S. 540, 555 (1994); see also, e.g., Larson v. Palmateer, 515 F.3d
1057, 1067 (9th Cir. 2008) (“In the absence of any evidence of some extrajudicial source of bias or
partiality, neither adverse rulings nor impatient remarks are generally sufficient to overcome the
presumption of judicial integrity, even if those remarks are ‘critical or disapproving of, or even hostile to,
counsel, the parties, or their cases.’” (quoting Liteky, 510 U.S. at 555)).
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The factual allegations in Avery’s motion regarding statements allegedly made by the
Court or attributable to the Court, even if they were true, would evidence nothing more
than a negative or critical assessment of the merits of Avery’s case based on the Court’s
experience with the proceedings. 	They do not establish any “deep-seated favoritism or
antagonism that would make fair judgment impossible.” 	The Court exercised fair,
reasoned, and impartial judgment in its rulings during Avery’s trial, and the Ninth Circuit
affirmed each of the Court’s rulings that Avery challenged in his direct appeal. For these
reasons, to the extent that Avery’s § 2255 motion includes a motion for recusal, the motion
for recusal is denied.
(2) 	Avery has procedurally defaulted his claim that his conviction violated
his Fifth Amendment due process right to a fair and impartial trial
Avery has procedurally defaulted his claim that his Fifth Amendment due
process rights were violated because of judicial bias on the part of the Court. 	Avery did
not raise this claim on direct appeal.50 He therefore is barred from raising it in his present
§ 2255 motion unless he “can first demonstrate either ‘cause’ and actual ‘prejudice’, or that
he is ‘actually innocent.’”51
Avery asserts ineffective assistance of appellate counsel as an excuse for his
failure to raise this issue on direct appeal.52 To establish ineffective assistance of appellate
counsel, Avery must demonstrate under the familiar standard of Strickland v. Washington53
50 See United States v. Avery, CA No. 16-30134, Appellant’s Opening Brief, CM/ECF No. 36
(9th Cir. Sept. 27, 2017).
51 Bousley, 523 U.S. at 622 (quoting Murray, 477 U.S. at 485, 496).
52 See Docket 623 at 7 (“Appointed counsel decided what issues to appeal. If this should have
been appealed, then I claim ineffective assistance of appellate counsel.”).
53 466 U.S. 668 (1984).
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that: 	(1) his counsel’s advice fell below an objective standard of reasonableness; and
(2) there is a reasonable probability that, but for counsel’s unprofessional errors, he would
have prevailed on appeal.54
But there is no reasonable probability that Avery would have prevailed on
appeal had his counsel raised this issue, and the Court therefore rejects Avery’s proffered
excuse of ineffective assistance of counsel.55 	The record conclusively establishes that
Avery’s conviction did not violate his due process right to a fair and impartial trial. 	The
Due Process Clause guarantees criminal defendants the right to “a fair and impartial
judge.”56 	To establish a due process claim based on judicial bias, a defendant must
“overcome a presumption of honesty and integrity in those serving as adjudicators.”57 But
as earlier explained, Avery has not demonstrated any evidence of bias or partiality on the
part of the Court, let alone bias or partiality from an “extrajudicial source”58 or bias or
partiality of a magnitude that might constitute “deep-seated favoritism or antagonism that
would make fair judgment impossible.”59
For this reason, there was no reasonable probability that Avery would have
prevailed on appeal had his counsel raised this issue. 	Even if it was objectively
unreasonable for Avery’s counsel not to have raised this issue, any such deficiency did not
54 Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989).
55 See Smith v. Robbins, 528 U.S. 259, 286 n.14 (2000) (“The performance component need not
be addressed first. ‘If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.’” (quoting Strickland, 466 U.S.
at 697)). 56 Larson, 515 F.3d at 1067.
57 Id. (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).
58 Id.
59 Liteky, 510 U.S. at 555.
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prejudice Avery. 	Thus, Avery has not satisfied the Strickland standard for ineffective
assistance of counsel, and he has no excuse for his failure to raise this issue on direct appeal.
Consequently, Avery’s judicial-bias due process claim is barred by procedural default.
B. 	Avery’s Fifth Amendment Double Jeopardy Right
Avery next asserts that his second trial violated his Fifth Amendment double
jeopardy rights because, according to Avery, the evidentiary hearing the Court held in
connection with Avery’s first § 2255 motion in 2013 was “the equivalent of a court trial on
the merits of substantive offenses, during which jeopardy attache[d].”60 Avery asserts that
in granting his first § 2255 motion on “actual innocence” grounds, the Court “necessarily
found me ‘factually innocent’ of all of the theories of wire fraud, including the ones for
which I was tried a second time, leading to the instant judgment.”61 	He concludes that
“[w]hen the Government recharged me in 2013 and 2014 for the exact same offenses and
the exact same conduct about which I had already proven that I was factually innocent, the
Government violated the Fifth Amendment to the U.S. Constitution Double Jeopardy
prohibition.”62
The Government first maintains that Avery’s double jeopardy claim is
procedurally defaulted. 	It secondly asserts that no possibility of a double jeopardy
violation existed because of the different elements of the statutes involved, and therefore
60 Docket 623 at 8–9.
61 Id. at 9.
62 Id.
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any failure by Avery’s appellate counsel cannot have constituted ineffective assistance of
counsel.63
The Court agrees that Avery has procedurally defaulted this claim. 	Avery
did not raise his double jeopardy claim on direct appeal.64 	He therefore is barred from
raising this issue in his present § 2255 motion unless he “can first demonstrate either
‘cause’ and actual ‘prejudice’, or that he is ‘actually innocent.’”65
Avery asserts ineffective assistance of appellate counsel as an excuse for his
failure to raise this issue on direct appeal.66 To establish ineffective assistance of appellate
counsel, Avery must demonstrate that: 	(1) his counsel’s advice fell below an objective
standard of reasonableness; and (2) there is a reasonable probability that, but for counsel’s
unprofessional errors, he would have prevailed on appeal.67 	But the record conclusively
shows that there is no reasonable probability that Avery would have prevailed on appeal
had his counsel raised this double jeopardy claim. 	When it vacated and remanded the
Court’s denial of Avery’s first § 2255 motion in 2013, the Ninth Circuit expressly
recognized the possibility that “Avery’s conduct may still constitute money- or property-
based wire fraud.”68 The Ninth Circuit also recognized that the Government might seek a
new indictment against Avery after its mandate issued.69 When the Court vacated Avery’s
63 Docket 677 at 27–30.
64 See United States v. Avery, CA No. 16-30134, Appellant’s Opening Brief, CM/ECF No. 36
(9th Cir. Sept. 27, 2017).
65 Bousley, 523 U.S. at 622 (quoting Murray, 477 U.S. at 485, 496).
66 See Docket 623 at 10 (“Appointed counsel decided what issues to appeal. If this should have
been appealed, then I claim ineffective assistance of appellate counsel.”).
67 See Miller, 882 F.2d at 1434.
68 Avery, 719 F.3d at 1085 n.3.
69 See Docket 129 (text entry) (Court of Appeals Notice).
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initial conviction, it did so based upon the Government and Avery’s joint stipulation that
Avery’s convictions for honest-services wire fraud and money laundering would be set
aside in light of the Ninth Circuit’s decision, not because of a conclusion that Avery was
innocent of all conceivable forms of wire fraud.70
Furthermore, contrary to Avery’s assertion, the Court’s handling of Avery’s
first § 2255 motion in 2013 did not constitute a “decision on the merits” that barred
subsequent prosecution of Avery for other types of fraud. 	Avery never was placed in
jeopardy during his first habeas evidentiary hearing. 	Longstanding Supreme Court
precedent holds that the Double Jeopardy Clause “does not come into play until a
proceeding begins before a trier ‘having jurisdiction to try the question of the guilt or
innocence of the accused.’ 	Without risk of a determination of guilt, jeopardy does not
attach, and neither an appeal nor further prosecution constitutes double jeopardy.”71 	In
Avery’s evidentiary hearing, the question before the Court was whether he actually was
innocent of honest-services wire fraud for the purposes of habeas corpus relief. The Court
was not considering whether Avery might have been guilty of money- or property-based
wire fraud or bank fraud. There was no possibility that the proceeding could have resulted
in Avery being found guilty of those crimes. The Court’s determination that Avery actually
was innocent of honest services fraud did not acquit him of those other offenses.
Consequently, jeopardy did not attach, and the Government was not precluded from
70 See Docket 153-1 (Proposed Order); Docket 154 (Minute Entry); Docket 155 (Order). 	The
Government had indicated that it planned to present Avery’s case to the next grand jury. See Docket 154.
71 Serfass v. United States, 420 U.S. 377, 391–92 (1975) (citation omitted) (quoting Kepner v.
United States, 195 U.S. 100, 133 (1904)).
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seeking a new indictment against Avery. Therefore, Avery’s subsequent trial cannot have
caused him to suffer double jeopardy.72
For these reasons, there is no reasonable probability that Avery might have
prevailed on appeal had his counsel raised this issue. Therefore, even if it was objectively
unreasonable for Avery’s counsel not to have raised this issue, any such deficiency did not
prejudice Avery. 	Thus, Avery has not satisfied the Strickland standard for ineffective
assistance of counsel, and he has no excuse for his failure to raise this issue on direct appeal.
Consequently, Avery’s double-jeopardy claim is barred by procedural default.
C. 	Avery’s Fifth and Fourteenth Amendment Rights Against Warrantless Seizure
and Imprisonment Without Due Process
Avery next asserts that his conviction violated his Fifth Amendment due
process rights because the Court lacked proper subject matter jurisdiction over his second
criminal prosecution. 	Avery asserts that when the Court granted his first § 2255 motion
and vacated his conviction, he should have been released from prison immediately. Avery
claims that by not releasing him or issuing a new arrest warrant, and by having him brought
to Alaska, the Court violated his Fourth Amendment right against unlawful seizure and his
due process rights under the Fifth Amendment. 	He accuses the Court of “unlawfully
orchestrat[ing] my seizure, imprisonment, and transport,” and “execut[ing] the functions
of the police officer. Taking me and transporting me without a warrant and against my will
is, literally, kidnapping.” He asserts that he was forced to endure opprobrious conditions
72 See id. at 393 (speaking of “the fundamental principle that an accused must suffer jeopardy
before he can suffer double jeopardy”).
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such as sleeping on a pad in a prison bathroom due to overcrowding in regular cells, being
walked through a public airport while in restraints, and being subjected to long hours of
restraint in handcuffs and chains. 	Avery asserts that these alleged violations of his
constitutional rights were so flagrant that they violated his due process rights and deprived
the Court of criminal jurisdiction over his subsequent prosecution. As part of his argument,
Avery challenges existing precedents holding that such circumstances do not deprive U.S.
district courts of criminal jurisdiction over a defendant.73
The Government maintains that Avery’s assertions constitute an allegation
of false imprisonment that are a matter for a civil lawsuit, not grounds for habeas relief.
The Government asserts that any claim of Avery’s for false imprisonment is time-barred.
The 	Government 	also 	disputes 	Avery’s 	allegations 	regarding 	the 	illegality 	of 	his
confinement after the Court granted his first § 2255 motion.74
In reply, Avery invokes the Court’s power to dismiss indictments for flagrant
due process violations. He asserts that “[t]he government’s effort to keep [me] in custody
despite the Ninth Circuit’s explicit reversal of the basis for [my] incarceration is the type
of misconduct that is contemplated by this principle.” He asks the Court to “sanction the
government for its outrageous misconduct by granting [my] § 2255 motion.”75
As an initial matter, Avery has procedurally defaulted this jurisdictional
claim. Avery did not raise this jurisdictional argument on direct appeal.76 He therefore is
73 Docket 623 at 11–13.
74 Docket 677 at 30.
75 Docket 683 at 10–14.
76 See United States v. Avery, CA No. 16-30134, Appellant’s Opening Brief, CM/ECF No. 36
(9th Cir. Sept. 27, 2017).
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barred from raising it in his present § 2255 motion unless he “can first demonstrate either
‘cause’ and actual ‘prejudice’, or that he is ‘actually innocent.’”77
Avery asserts ineffective assistance of appellate counsel as an excuse for his
failure to raise this argument on direct appeal.78 	But the record conclusively forecloses
this assertion. For more than a century, the Supreme Court has held that “the power of a
court to try a person for a crime is not impaired by the fact that he had been brought within
the court’s jurisdiction by reason of a ‘forcible abduction.’”79 Known as the Ker/Frisbie
doctrine, this “venerable principle” of the law provides that “the manner by which a
defendant is brought to trial does not affect the government’s ability to try him.”80 	The
Ninth Circuit has recognized two limited exceptions to the Ker/Frisbie doctrine that apply
“if either: 	(1) the transfer of the defendant violated the applicable extradition treaty, or
(2) the United States government engaged in misconduct of the most shocking and
outrageous kind to obtain his presence.”81
The 	record 	in 	Avery’s 	case 	conclusively 	establishes 	a 	lack 	of 	any
“misconduct of the most shocking and outrageous kind” that might constitute an exception
to the Ker/Frisbie doctrine.82 Under the doctrine’s second exception, mandatory dismissal
77 Bousley, 523 U.S. at 622 (quoting Murray, 477 U.S. at 485, 496).
78 See Docket 623 at 14 (“Appointed counsel decided what issues to appeal. If this should have
been appealed, then I claim ineffective assistance of appellate counsel.”).
79 Frisbie v. Collins, 342 U.S. 519, 522 (1952) (quoting Ker v. Illinois, 119 U.S. 436, 444 (1888)).
80 United States v. Struckman, 611 F.3d 560, 571 (9th Cir. 2010) (quoting United States v. Matta-
Ballesteros, 71 F.3d 754, 762 (9th Cir. 1995)).
81 Id. (internal quotation marks omitted) (quoting United States v. Anderson, 472 F.3d 662, 666
(9th Cir. 2006)).
82 Avery does not attempt to invoke the first Ker/Frisbie exception. See Docket 623 at 11–13;
Docket 683 at 10–14.
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of an indictment is required “[w]here the Government’s conduct to obtain a defendant’s
presence is so shocking and outrageous ‘as to violate the universal sense of justice.’”83 As
its language suggests, this exception is a high bar. For example, the Ninth Circuit has held
that the exception was not warranted where a group of U.S. Marshals forcibly abducted a
defendant from his home in the middle of the night and subjected him to beatings and stun
gun burnings before transporting him back to the United States.84
Under this and other precedents, the Government’s actions with respect to
Avery fall far short of the “misconduct of the most shocking and outrageous kind” required
to invoke the exception. 	Within days of the Ninth Circuit’s order vacating the Court’s
denial of Avery’s first § 2255 motion, the Court ordered the Government to show cause as
to why Avery should not be promptly released from prison. The Government responded
in opposition to Avery’s release. After several hearings and the filing of several motions
by both parties over the course of more than a month, Avery was released from custody.
Even if Avery’s allegations regarding the Government’s handling of him between the time
of the Ninth Circuit’s remand of his initial § 2255 are true, they fall far short of the
“shocking and outrageous misconduct” exception to the Frisbie/Ker doctrine. 	As such,
there is no reasonable probability that Avery would have prevailed if his appellate counsel
had raised this argument on direct appeal.
83 Struckman, 611 F.3d at 573 (quoting United States v. Barrera-Moreno, 951 F.2d 1089, 1092
(9th Cir. 1991)).
84 Matta-Ballesteros, 71 F.3d at 761–63.
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Similarly, there is no reasonable probability that an appeal based on the
Court’s supervisory powers would have prevailed. Federal courts may dismiss indictments
for governmental violations that do not rise to the level of due process violations in certain
exceptional circumstances: “(1) to implement a remedy for the violation of a recognized
statutory or constitutional right; (2) to preserve judicial integrity by ensuring that a
conviction rests on appropriate considerations validly before a jury; and (3) to deter future
illegal conduct.”85 Avery’s situation did not satisfy any of these exceptional circumstances.
The Court initiated prompt proceedings regarding Avery’s motion and his potential release
from prison after the Ninth Circuit vacated the Court’s initial § 2255 decision. 	The
Government opposed Avery’s immediate release from prison based on its “inten[tion] to
introduce evidence of uncharged crimes that are not part [of] the record.”86 	There is no
indication that the Government’s opposition constituted flagrant misconduct or was the
continuation of past illegal conduct. Thus, an appeal on these grounds would have had no
reasonable probability of success.
For these reasons, even if it was objectively unreasonable for Avery’s
counsel not to have raised this issue on direct appeal, any such deficiency did not prejudice
Avery. 	Avery thus has failed to establish the requisite ineffective assistance of counsel
necessary to excuse his failure to raise this issue on direct appeal. 	Avery’s lack-of-
jurisdiction claim therefore is barred by procedural default.
85 Struckman, 611 F.3d at 574 (quoting Matta-Ballesteros, 71 F.3d at 763).
86 Docket 135 at 2 (Response to Order to Show Cause).
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D. 	Avery’s Sixth Amendment Right to Effective Assistance of Counsel—S. Dattan
Avery next asserts that defense attorney Scott Dattan, who represented him
in 2006 and 2007 in his original criminal investigation, plea agreement, and sentencing,
provided ineffective assistance of counsel by failing to electronically record one of Avery’s
initial interrogations. 	Avery asserts that he asked Dattan to record the interrogation, but
that Dattan failed to do so. Avery asserts that the Government eventually used information
from the interrogation at his trial in 2016. Avery alleges that Dattan’s failure to record the
interview “le[ft] me with no way to challenge the veracity of the Government’s writings
purported to be my statements.”87
The Government maintains that Avery’s claim is time-barred because he
failed to raise it within one year of the judgment on his original charges. The Government
asserts that “the facts of any claim [against Dattan] were present in 2008 and waived. Nor
is there any new evidence alleged . . . . Thus, it is barred from being raised here.”88
In reply, Avery asserts that his claim against Dattan is not time-barred
because his ineffective assistance of counsel claim relates only to his second conviction
from 2016, not his original conviction from 2007. His reply concludes that “[u]nless the
Court determines that Mr. Avery would not be entitled relief even if the facts assumed were
true, he should be granted leave to conduct a deposition of Mr. Dattan.”89
87 Docket 623 at 15.
88 Docket 677 at 30.
89 Docket 683 at 14–15.
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The Court concludes that the record conclusively establishes that any
deficiency in Dattan’s decision not to record Avery’s interrogation did not prejudice
Avery’s 	case. 	The 	veracity 	of 	the 	Government’s 	evidence 	relating 	to 	Avery’s
interrogations did not play a significant role in the Government’s case-in-chief or in
Avery’s defense. In its decision on Avery’s direct appeal, the Ninth Circuit concluded that
the financial documentary evidence in the case would have allowed “any rational trier of
fact” to find beyond a reasonable doubt that Avery committed the essential elements of the
crimes of which he was convicted.90
Furthermore, the jury 	knew that 	Avery’s 	interrogations had 	not been
electronically 	recorded. 	Avery’s 	trial 	attorney 	discussed 	the 	lack 	of 	independent
recordings of Avery’s interrogations by the FBI during his cross-examination of the
Government’s rebuttal witness, Special Agent Matthew Campe, questioning the veracity
of Campe’s notes and his testimony regarding Avery’s admissions in the interviews.91
Avery’s trial attorney also mentioned the lack of electronic recordings of Avery’s
interrogations in his closing argument to the jury.92 	Nevertheless, the jury found Avery
guilty of most of the charges. Thus, the Court summarily concludes that, even if Dattan’s
alleged omission constituted ineffective assistance of counsel, it did not have any
“substantial and injurious effect or influence in determining the jury’s verdict.”93 	Any
hypothetical deficiency in Dattan’s representation therefore would be harmless for the
90 Avery, 747 F. App’x at 484–85 (emphasis in original).
91 Docket 563 at 111–14.
92 Id. at 183.
93 Montalvo, 331 F.3d at 1057–58 (emphasis removed) (quoting Brecht, 507 U.S. at 623).
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purposes of habeas corpus relief.94 	The Court therefore concludes that the record
conclusively establishes that Avery’s claim against Dattan is without merit.
E. 	Avery’s Sixth Amendment Right to Effective Assistance of Counsel—M. Dieni
Avery next asserts that his trial defense attorney, Michael Dieni, provided
him with ineffective assistance of counsel through a host of “inexcusable” mistakes.
Following a lengthy recitation of his version of the facts leading up to his conviction, Avery
accuses Dieni of failing to file a complaint against FBI agents whom Avery accused of
illegal activity, failing to challenge search warrants the FBI obtained for property Avery
owned or had access to on the ground that—according to Avery—the FBI had obtained the
warrants using falsified evidence, and failing to attempt to use the existence of the FBI’s
allegedly falsified evidence to impeach the Government’s rebuttal witness.
Avery also alleges that he and Dieni “had a communication problem,”
claiming that Dieni “was verbally abusive” toward him.
Through most of the representation [Dieni] was verbally
abusive and kept trying to convince me to plead guilty. 	I
asserted my innocence and he became angry. I was not abusive
towards him. 	On a number of occasions he swore at me and
called me an idiot. He did this in front of his investigator . . . .
She tried to explain to me “how he was.”95
Avery alleges that he had been diagnosed with several mental health conditions and had
been prescribed medication during preparation for his trial, and that Dieni “made no
accommodation for my disabilities in his representation of me.” 	Avery asserts that “his
94 Id.
95 Docket 623 at 25.
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symptoms and behavior patterns were very relevant to my defense,” but that Dieni
“dismissed it as foolish” and refused to use a mental health professional Avery consulted
in his defense strategy. He recounts a litany of specific instances in which he alleges, for
example, that Dieni screamed at him, that Dieni refused to challenge an allegedly tainted
prospective juror during jury selection, that Dieni refused to investigate certain allegedly
exculpatory facts, and other similar allegations. Avery asserts that if not for these alleged
mistakes by Dieni, the jury would have found him not guilty on all charges.96
In opposition, the Government maintains that Avery’s allegations against
Dieni are meritless. 	The Government notes that the FBI searches whose legality Avery
challenges were upheld after being scrutinized in an evidentiary hearing in an earlier case,
and that therefore it would have been pointless for Dieni to have attempted to challenge
them at Avery’s trial. The Government points out that the Court questioned the prospective
juror Avery alleged to have been tainted, and that both the Court and the parties, including
Avery himself, were satisfied with the juror’s answers.97 	It also maintains that Avery’s
psychiatric conditions were irrelevant to his case because they were “not a defense” to the
criminal conduct with which he had been charged. The Government maintains that it was
objectively reasonable for Dieni to decide not to pursue the other avenues Avery accuses
him of failing to pursue because each was irrelevant to Avery’s defense.98
96 Id. at 17–43.
97 See Docket 546 at 10–16 (Tr. Trans., Day 2).
98 Docket 677 at 31–43.
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In habeas proceedings, “[a]n evidentiary hearing is usually required if the
motion 	states 	a 	claim 	based 	on 	matters 	outside 	the 	record 	or 	events 	outside 	the
courtroom.”99 In the present case, Avery’s allegations against Dieni extensively reference
interactions that occurred outside of the courtroom. 	At present, neither Avery nor the
Government have submitted affidavits from Avery or Dieni regarding these allegations.
Out of an abundance of caution, the Court concludes that an evidentiary hearing is required
at which the parties can introduce relevant evidence on this issue. The evidentiary hearing
may, at the parties’ option, be held in person, telephonically, or by affidavit. As set out in
the conclusion of this order, the Court will hold a Telephonic Scheduling Conference so
that the parties may choose an appropriate date for the evidentiary hearing. As the habeas
challenger, Avery will bear the burden at the hearing to make the requisite showing under
the Strickland standard.100
F. 	Avery’s Sixth Amendment Right to Confront Witnesses Against Him
Avery next asserts that his conviction violated his Sixth Amendment right to
confront the witnesses against him. 	Specifically, he alleges that the Court erroneously
allowed two witnesses to testify about their “impressions” of out-of-court statements made
by two other parties, noting that his defense counsel objected on evidentiary and Sixth
99 Burrows, 872 F.2d at 917.
100 See, e.g., Harrington v. Richter, 562 U.S. 86, 104 (2011) (“The challenger’s burden is to show
‘that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the
Sixth Amendment.’” (quoting Strickland, 466 U.S. at 687)); see also, e.g., Murtishaw v. Woodford, 255
F.3d 926, 939 (9th Cir. 2001) (“The defendant bears the heavy burden of proving that counsel’s assistance
was neither reasonable nor the result of sound trial strategy.”).
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Amendment grounds at trial. Avery asserts that his inability to cross-examine the two other
parties violated his right under the Confrontation Clause.101
The Government maintains that Avery’s claim is defaulted because he raised
it both at trial and on direct appeal, where it was rejected on its merits.102 In reply, Avery
asserts that this claim was not raised on direct appeal because his appeal framed the claim
of error in terms of evidentiary hearsay rules, rather than as a matter of Sixth Amendment
constitutional law. Conceding that he may have failed to raise his Sixth Amendment claim
on direct appeal, Avery asserts ineffective assistance of appellate counsel as cause to
excuse his procedural default.103
A review of Avery’s appellate filings reveals that Avery apparently raised
his Confrontation Clause arguments on appeal. In the “Summary of Argument” section of
his opening brief, Avery framed his claim of error regarding the Court’s admission of the
two witnesses’ “impression” testimony in terms of both evidentiary rules and Sixth
Amendment constitutional law:
The district court’s hearsay rulings denied Mr. Avery his due
process right to present a defense by limiting his ability to
describe the effect on him of [the declarant’s] representations,
while denying him his right to confront adverse witnesses by
admission of ‘impressions’ about adverse witnesses.104
101 Docket 623 at 45–46.
102 Docket 677 at 44–45.
103 Docket 683 at 17–18.
104 United States v. Avery, CA No. 16-30134, Appellant’s Opening Brief, CM/ECF No. 36, at *13
(9th Cir. Sept. 27, 2017). Avery did not discuss the constitutional aspect of this claim in the body of his
brief. See id. at *58.
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But the Ninth Circuit appears not to have addressed Avery’s constitutional argument.105
Because the Ninth Circuit did not “consider” or “expressly reject” his argument, the Court
concludes that Avery is not barred from raising the issue in the present § 2255 motion.106
Nevertheless, the record conclusively establishes that Avery’s Confrontation
Clause right was not violated. The Confrontation Clause prohibits the Government from
introducing “[t]estimonial statements of witnesses absent from trial” as evidence against a
criminal defendant unless “the declarant is unavailable, and only where the defendant has
had a prior opportunity to cross-examine [the witness].”107 “[N]on-testimonial statements
do not implicate the Confrontation Clause.”108 As the Ninth Circuit explained in Avery’s
direct appeal, no testimonial evidence from the two witnesses in question was ever
introduced in Avery’s case.109 	Rather, the witnesses who testified at Avery’s trial gave
“opinion testimony” of their own “impressions” regarding the reactions of the two
witnesses in question.110 No testimony from the other two witnesses was ever presented.
Therefore, no violation of Avery’s Confrontation Clause right could have occurred.
Moreover, even if such a violation had occurred, it would have been harmless
error. The Ninth Circuit concluded in Avery’s direct appeal that the other evidence in the
case established that “any rational trier of fact could have found the essential elements” of
105 See Avery, 747 F. App’x at 485.
106 See Redd, 759 F.2d at 701 (speaking of issues an appellate court “expressly reject[s]” being
barred on collateral attack); Egger, 509 F.2d at 748 (speaking of issues that were “considered” by an
appellate court being barred on collateral attack).
107 Whorton v. Bockting, 549 U.S. 406, 413 (2007) (alterations in original) (quoting Crawford v.
Washington, 541 U.S. 36, 59 (2004)).
108 Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009).
109 Avery, 747 F. App’x at 485.
110 Id.
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Avery’s convicted charges “beyond a reasonable doubt.”111 	Because the harmless-error
standard for constitutional “trial errors” is lower in habeas proceedings than it is on direct
appeal,112 the Ninth Circuit’s decision establishes that the Confrontation Clause error
Avery asserts would have been harmless error.
For these reasons, the Court concludes that Avery’s assertion that his
conviction violated his Sixth Amendment right to be confronted with the witnesses against
him is conclusively without merit.
G. 	Avery’s Fifth Amendment Right to a Unanimous Verdict
Avery next asserts that his conviction violated his Fifth Amendment due
process rights because the Court did not sua sponte issue a specific jury instruction on
unanimity. Avery alleges that he was charged with defrauding “May Smith and the May
Smith Trust,” but that when the case was sent to the jury “neither the court nor the
Government clarified whether the charges applied to the May Smith Trust or to May
Smith.” Avery asserts that he was “not convicted on a unanimous verdict” because “some
of the jurors could have found that I had defrauded May Smith . . . and some could have
found that I defrauded the May Smith Trust.”113
The Government maintains that Avery waived this claim by failing to raise
it in an objection at trial. 	It further maintains that no specific unanimity jury instruction
was needed in Avery’s case because of the clarity of the Government’s indictment and the
111 Id. (quoting United States v. Sullivan, 522 F.3d 967, 974 (9th Cir. 2008) (per curiam)).
112 Brecht, 507 U.S. at 622–23, 638.
113 Docket 623 at 47.
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“overwhelming” amount of evidence against Avery on the counts of the indictment on
which he was convicted.114
The Court concludes that Avery has procedurally defaulted his unanimity-
charge violation claim. Avery did not raise this issue on direct appeal.115 He therefore is
barred from raising it in his present § 2255 motion unless he “can first demonstrate either
‘cause’ and actual ‘prejudice’, or that he is ‘actually innocent.’”116
Avery asserts ineffective assistance of appellate counsel as a cause for his
failure to raise this argument on direct appeal.117 	But the record conclusively refutes
Avery’s assertion. 	To establish ineffective assistance of appellate counsel, Avery must
demonstrate 	that: 	(1) 	his 	counsel’s 	advice 	fell 	below 	an 	objective 	standard 	of
reasonableness; 	and 	(2) 	there 	is 	a 	reasonable 	probability 	that, 	but 	for 	counsel’s
unprofessional errors, he would have prevailed on appeal.118 	But there is no reasonable
probability that Avery would have prevailed on appeal had his counsel raised this issue.
Federal Rule of Criminal Procedure 30(d) provides that “[a] party who objects to any
portion of the [jury] instructions or to a failure to give a requested instruction must inform
the court of the specific objection and the grounds for the objection before the jury retires
114 Docket 677 at 45–49.
115 See United States v. Avery, CA No. 16-30134, Appellant’s Opening Brief, CM/ECF No. 36
(9th Cir. Sept. 27, 2017). Regarding jury instructions, Avery’s direct appeal challenged only the Court’s
deliberate-ignorance instruction and its refusal to incorporate a good faith defense in its specific-intent
instruction. See id. at *33–38, *39–49. The Ninth Circuit concluded that the jury instructions were proper.
Avery, 747 F. App’x at 484.
116 Bousley, 523 U.S. at 622 (quoting Murray, 477 U.S. at 485, 496).
117 See Docket 623 at 48 (“Appointed counsel decided what issues to appeal. If this should have
been appealed, then I claim ineffective assistance of appellate counsel.”).
118 See Miller, 882 F.2d at 1434.
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to deliberate.” 	Rule 30(d) also provides that “[f]ailure to object in accordance with this
rule precludes appellate review,” except for plain errors that affect substantial rights.119
In this case, Avery did not raise a unanimity objection to the jury instructions
at trial,120 nor did he request a specific unanimity instruction in his proposed jury
instructions.121 	Therefore, Avery only could have prevailed on appeal by arguing plain
error. A federal appellate court has the discretionary power to correct a forfeited plain error
“so long as the error ‘seriously affects the fairness, integrity, or public reputation of judicial
proceedings.’”122 	“An error is plain if it is contrary to the law at the time of appeal.”123
And an error affects substantial rights “if the defendant can ‘demonstrate a reasonable
probability that [he] would have received a different sentence if the district court had not
erred.’”124
The lack of a specific unanimity instruction in Avery’s case would not have
constituted plain error. 	At the close of Avery’s trial, the Court gave the jury a standard
general unanimity charge: 	“Your verdict, whether guilty or not, must be unanimous.”125
119 See Fed. R. Crim. P. 30(d) & 52(b).
120 See Docket 543 (Trans. of Final Pre-Trial Conference); Docket 563 at 220–29 (Tr. Trans.,
Day 12).
121 See Docket 388 (Def.’s Proposed Jury Instructions).
122 United States v. Depue, 912 F.3d 1227, 1232 (9th Cir. 2019) (en banc) (internal quotation marks
omitted) (quoting United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc)). Contrary to
the Government’s memorandum, the Supreme Court has rejected the older “miscarriage of justice” standard
for forfeited plain errors as overly narrow. See, e.g., Rosales-Mireles v. United States, 138 S. Ct. 1897,
1906 (2018).
123 Id. at 1234 (internal quotation marks omitted) (quoting Ameline, 409 F.3d at 1078).
124 Id. (alteration in original) (quoting United States v. Joseph, 716 F.3d 1273, 1280 (9th Cir.
2013)). 125 Docket 563 at 228; see also id. at 228–29 (“After you’ve reached unanimous agreement on all
the verdicts . . . . It is important that you attempt to reach a unanimous verdict . . . . On the day you reach a
verdict . . . you should have your foreperson date and sign the verdict form unanimously agreed upon by
your members . . . .”).
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“Ordinarily, the ‘general unanimity instruction suffices to instruct the jury that they must
be unanimous on whatever specifications form the basis of the guilty verdict.’”126
However, “[a] specific unanimity instruction is necessary ‘where it appears that there is a
genuine possibility of jury confusion or that a conviction may occur as the result of
different jurors concluding that the defendant committed . . . acts’ consisting of different
legal elements.”127
In Avery’s case, there was no genuine possibility that different jurors
concluded that Avery committed different acts. Avery’s indictment clearly described the
acts for which he was charged with money- or property-based wire fraud.128 	The
indictment specified the dates involved and the amounts of money that formed the basis of
the acts constituting the basis of each count.129 	The jury’s verdict forms also clearly
specified the transactions upon which each count of the indictment was based.130 The Court
polled the jury after the verdicts were delivered, and each juror indicated that the verdicts
were their true verdicts.131 	The only substantive legal question the jury submitted to the
Court during their deliberations related to the definition of “acting knowingly.”132 There
was no indication that the jury was confused about whom Avery’s wire fraud targeted, nor
126 United States v. Mancuso, 718 F.3d 780, 792–93 (9th Cir. 2013) (quoting United States v.
Lyons, 472 F.3d 1055, 1068 (9th Cir. 2007)).
127 United States v. Tuan Ngoc Luong, 965 F.3d 973, 985 (9th Cir. 2020) (internal quotation marks
omitted) (second alteration in original) (quoting United States v. Anguiano, 873 F.2d 1314, 1319 (9th Cir.
1989)). 128 See Docket 220 at 1–11 (First Superseding Indictment).
129 See Docket 220 at 1–11.
130 See Dockets 461-1 through 461-16 (Jury Verdict Forms).
131 Docket 566 at 20–23 (Tr. Trans., Day 15).
132 See id. at 3–11.
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that jurors might have concluded that Avery committed acts consisting of different legal
elements. The Government’s case did not rely on multiple theories regarding Avery’s wire
fraud charges, nor was the case so “factually complex” that jury confusion was likely to
occur.133 For these reasons, no specific unanimity instruction was required.
Avery cites to the Ninth Circuit’s recent decision in United States v. Miller134
to support his arguments, but Miller is both inapposite and inapplicable to his case. First,
Miller is inapposite because it held only that the wire fraud statute requires the Government
to prove that a defendant intended to both deceive and cheat a victim, not merely deceive
or cheat them.135 	Miller’s holding did not relate to whether the intent must have been
directed toward a single victim in particular.136 	Second, even if Miller had held so, the
Miller decision was issued more than four years after Avery’s trial and more than a year
after his appeal became final. 	As such, Miller was not “the law at the time of [Avery’s]
appeal,”137 and it therefore would not have made the Court’s decision constitute plain error
even if Avery’s interpretation of it were correct.
Furthermore, there is no reasonable probability that a hypothetical plain error
regarding a lack of specific unanimity instruction affected Avery’s substantial rights. As
the Ninth Circuit concluded in Avery’s direct appeal, the evidence the Government
133 See Anguiano, 873 F.2d at 1320 & n.4.
134 953 F.3d 1095 (9th Cir. 2020).
135 Id. at 1101–03.
136 See id.
137 Depue, 912 F.3d at 1234 (quoting Ameline, 409 F.3d at 1078).
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adduced at trial was sufficient to allow “any rational trier of fact” to find Avery guilty of
the essential elements of wire fraud beyond a reasonable doubt.138
For these reasons, the Court concludes that there is no reasonable probability
that Avery would have prevailed had his counsel raised this unanimity instruction argument
on direct appeal. 	Consequently, even if it was objectively unreasonable for Avery’s
counsel not to have raised this issue, any such failure did not prejudice Avery. Avery thus
has failed to establish the requisite ineffective assistance of counsel necessary to excuse
his failure to raise this issue on direct appeal. 	Avery’s unanimity instruction claim
therefore is barred by procedural default.
H. 	Avery’s Fifth Amendment Due Process Rights and the Constitutionality of the
Jencks Act and Federal Rule of Criminal Procedure 16
Avery’s final assertion is that both the Jencks Act139 and Federal Rule of
Criminal Procedure 16 violate the Fifth Amendment’s Due Process Clause.
Under the current discovery laws and the Jencks Act, there is
no way for a defendant to investigate whether or not the
government 	violated 	the 	defendant’s 	constitutional 	rights.
Everything is secret. . . . I have a right, as a criminal defendant,
to investigate the government’s activities. 	The Jencks Act is
no longer viable with the level of secret investigations being
prosecuted in this country.140
Alleging a “high probability that government relied on provisions of the . . . PATRIOT
Act” to prosecute him, Avery asserts that the Jencks Act and Rule 16’s provisions inhibited
138 Avery, 747 F. App’x at 484–85.
139 18 U.S.C. § 3500.
140 Docket 623 at 49.
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his ability to prove his innocence.141 The Government opposes Avery’s arguments on the
grounds of procedural default and lack of supporting evidence.142
The Court concludes that Avery’s claim is procedurally defaulted. Avery did
not raise his constitutional challenges to the Jencks Act and Rule 16 on direct appeal.143
He therefore is barred from raising it in his present § 2255 motion unless he “can first
demonstrate either ‘cause’ and actual ‘prejudice’, or that he is ‘actually innocent.’”144
Avery asserts ineffective assistance of appellate counsel as an excuse for his
failure to raise this issue on direct appeal.145 But such an assertion is conclusively without
merit. Regarding Congress’s authority to enact the Jencks Act, the Supreme Court has held
that the Act “does not reach any constitutional barrier.”146 	Furthermore, other federal
courts have consistently rejected due process challenges to the constitutionality of the
Jencks Act and Rule 16.147 The likelihood of success on appeal on these grounds was so
remote that any deficiency in Avery’s appellate counsel’s decision not to raise this
argument on appeal cannot have prejudiced Avery. Avery therefore has failed to establish
ineffective assistance of counsel, and he cannot excuse his failure to raise this argument on
141 Id.
142 Docket 677 at 49–51.
143 See United States v. Avery, CA No. 16-30134, Appellant’s Opening Brief, CM/ECF No. 36
(9th Cir. Sept. 27, 2017).
144 Bousley, 523 U.S. at 622 (quoting Murray, 477 U.S. at 485, 496).
145 See Docket 623 at 50 (“Appointed counsel decided what issues to appeal. If this should have
been appealed, then I claim ineffective assistance of appellate counsel.”).
146 Palermo v. United States, 360 U.S. 343, 353 n.11 (1959); see also, e.g., United States v. Gatto,
763 F.2d 1040, 1046 (9th Cir. 1985) (“The Supreme Court upheld the Jencks Act in Palermo . . . .”).
147 See, e.g., United States v. Rodriguez, 539 F. Supp. 2d 592, 599 (D. Conn. 2008); United States
v. Owens, 933 F. Supp. 76, 84 (D. Mass. 1996); United States v. Til, No. 2:13 CR 68, 2018 WL 11879704,
at *1 (N.D. Ind. Sept. 19, 2013); United States v. O’Reilly, No. 05-80025, 2007 WL 2421488, at *2 (E.D.
Mich. Aug. 23, 2007).
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direct appeal. 	For these reasons, Avery’s due process claim challenging the Jencks Act
and Rule 16 is barred by procedural default.
V. 	CERTIFICATE OF APPEALABILITY
Regarding Claims 1–4 and 6–8 of Avery’s pro se § 2255 motion, the Court
concludes that a Certificate of Appealability is not warranted. 	Federal law prohibits
appeals from denials of § 2255 motions unless a Certificate of Appealability first has been
issued.148 	A Certificate of Appealability may issue only if “the applicant has made a
substantial showing of the denial of a constitutional right.”149 To make such a showing, a
habeas petitioner must demonstrate “that reasonable jurists could debate whether . . . the
petition should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.”150
Based on its analysis of Claims 1–4 and 6–8 of his pro se § 2255 motion, the
Court concludes that Avery has not made a substantial showing of a denial of a
constitutional right. 	In the Court’s view, reasonable jurists could not disagree with the
Court’s resolution of these claims, nor could they conclude that the issues he raises are
“adequate to deserve encouragement to proceed further.”151 	Therefore, pursuant to
28 U.S.C. § 2253(c), a Certificate of Appealability shall not issue regarding these claims.152
148 28 U.S.C. § 2253(c)(1).
149 28 U.S.C. § 2253(c)(2).
150 Towery v. Schriro, 641 F.3d 300, 311 (9th Cir. 2010) (quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000)).
151 Id. (quoting Slack, 529 U.S. at 484).
152 If the upcoming evidentiary hearing results in the Court denying Claim 5 of Avery’s motion,
the Court will make a supplemental ruling on a Certificate of Appealability regarding that claim.
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VI. 	CONCLUSION
For the foregoing reasons, the Court concludes that Claims 1, 2, 3, 7, and 8
of Avery’s pro se § 2255 motion are procedurally defaulted and cannot be raised or
considered on collateral attack. The Court also concludes that Claims 4 and 6 of Avery’s
pro se motion are conclusively without merit, and they therefore are denied. 	Regarding
Claim 5 of Avery’s pro se motion, the Court concludes that an evidentiary hearing is
warranted.
IT IS THEREFORE ORDERED THAT:
1. 	Claims 1, 2, 3, 4, 6, 7, and 8 of Avery’s pro se § 2255 motion at
Docket 623 are DENIED.
2. 	The 	parties 	shall 	attend 	a 	telephonic 	scheduling 	conference 	on
Tuesday, February 14, 2023, at 9:30 a.m., for the purpose of scheduling an evidentiary
hearing on the merits of Claim 5 of Avery’s pro se motion. 	Participating parties shall
attend by calling (571) 353-2301, Call ID 218615303, PIN 867901, from a landline
telephone five minutes prior to the start of the hearing.
At the scheduling conference, the parties should be prepared to discuss
whether they want the evidentiary hearing to be held in person, telephonically, or by
affidavit.
IT IS SO ORDERED this 12th day of January, 2023, at Anchorage, Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
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