United States v. Holloway ( 2019 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS September 19, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-4083
ROBERT LEE HOLLOWAY,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Utah
(D.C. Nos. 2:17-CV-00267-RJS & 2:11-CR-00984-RJS-1)
_________________________________
Gregory W. Stevens, Salt Lake City, UT, for the Appellant.
Ryan D. Tenney (John W. Huber, United States Attorney, with him on the brief), Office
of the United States Attorney, District of Utah, Salt Lake City, UT, for the Appellee.
_________________________________
Before HARTZ, MURPHY, and CARSON, Circuit Judges.
_________________________________
CARSON, Circuit Judge.
_________________________________
A jury convicted Robert Holloway in federal district court of four counts of wire
fraud in violation of 18 U.S.C. § 1343 and one count of submitting a false tax return in
violation of 26 U.S.C. § 7206. The district court sentenced Holloway to 225 months’
imprisonment, after applying a six-level enhancement for crimes involving 250 or more
victims under U.S.S.G. § 2B1.1(b)(2)(C) (2014).1 After unsuccessfully challenging his
conviction and sentence on direct appeal, Holloway filed a 28 U.S.C. § 2255 motion
raising three grounds for relief: (1) that a total breakdown of communication between
Holloway and his trial counsel caused his trial counsel to perform ineffectively; (2) that
his trial counsel acted ineffectively by failing to argue that the evidence did not support
the district court’s application of the six-level sentencing enhancement; and (3) that the
prosecution violated his due process rights by failing to turn over to the defense favorable
information possessed by a prosecution witness contrary to Brady v. Maryland, 373 U.S.
83 (1963). The district court denied Holloway’s § 2255 motion, but granted a certificate
of appealability on all three issues. We exercise jurisdiction pursuant to 28 U.S.C. §§
1291 and 2253 and affirm.
I.
Robert Holloway was the president and CEO of US Ventures—a company that
traded in the futures market. Holloway told investors he had developed a special
algorithm that allowed him to trade without losses. He claimed that because of the
algorithm he “could trade the markets and make money whether the market went up or
the market went down.”
Holloway’s grandiose claims were false. Instead, for several years Holloway
operated US Ventures as a “Ponzi deal”—“taking new clients’ money and paying out
1
All references U.S.S.G. § 2B1.1 in this opinion are to the 2014 version.
2
salaries and distributions.” This scheme continued until 2007 when the SEC froze his
accounts.
Holloway subsequently faced criminal charges. Relevant to this case, federal
prosecutors indicted Holloway on four counts of wire fraud and one count of submitting a
false tax return.
Attorney Edwin Wall initially represented Holloway in his criminal case.
Approximately a month and a half before trial was set to begin, Wall withdrew as counsel
for Holloway. After Wall’s withdrawal, the district court vacated the trial date due to the
complexity of the case and appointed attorney Kevin Murphy to represent Holloway.
On November 19, 2013, the district court held a status conference hearing with the
parties. Murphy mentioned a long-shot chance that Holloway might retain private
counsel before trial. The judge responded directly to Holloway: “[I]f you’re going to
retain counsel you’re going to do so by the end of the year. We’re not going to delay this
trial date. And so if you hire a lawyer, you are welcome to do so, but it has got to be by
the end of the calendar year so he can get in and get up to speed and maintain all of the
dates that we have got.”
In March 2014, Murphy filed a motion requesting a hearing on Holloway’s
competency. In support of the motion, Murphy attached a competency evaluation and a
supplemental evaluator memorandum written by Dr. Jonathan Bone. During his initial
competency evaluation, Dr. Bone determined that Holloway exhibited mild paranoia, and
features of mania and hypomania. He also noted that Holloway met the criteria for
3
Narcissistic Personality Disorder. Yet, he ultimately concluded that Holloway was
competent to stand trial.
In his supplemental evaluation, however, Dr. Bone expressed greater concern
regarding Holloway’s disposition and ability to stand trial. Dr. Bone stated that he
“believe[d] that [Holloway was] likely compromised with regard to judgment, decision-
making, and assisting properly in his defense.”
For his part, Holloway adamantly opposed an incompetency defense, and his
counsel’s supposed fixation on his mental health frustrated him. Emails between
Holloway and Murphy demonstrate the increasing strain these competency evaluations
placed on the attorney-client relationship. For example, Murphy repeatedly sought
Holloway’s permission to disclose Dr. Bone’s evaluation to prosecutors. Holloway
denied each request.2 In an email dated March 24, 2014, Murphy requested that
Holloway allow him to talk with prosecutors generally about Dr. Bone’s evaluation
without disclosing it to them. Holloway responded:
My answer would be. Since i strongly disagree with the report, especially
the assertion of you and Dr. Bone what it was faked My answer is a definate
no. I do not want anything regarding this report discussed in anyway shape
or form with prosecutors or anyone else. As far as a more definite pea
bargain i am not interested in showing our ( your) hand at this time. At such
time as it would be appropriate i will let you know.[3]
2
Ultimately, Murphy sought ex parte authorization from the magistrate judge
to file certain material related to Holloway’s mental health under seal.
3
The email excerpts reproduced in this opinion are in their original form. We
have not edited their contents.
4
Holloway expressed a similar sentiment in an email dated March 27, 2014, after
Murphy again asked for permission to disclose Holloway’s mental health evaluation to
prosecutors:
You told me that Bone was brought in to evaluate whether or not there was
an attempt to defraud. I was also told by you that the investigator was
brought in by you on limited resources to investigate potential lead that
would bring out the truth. Instead it appears Dr. Bone & the investigators
were brought on solely to portray me as mentally ill. If I had of known Dr.
Bones background regarding his work with as an expert on the criminally
insane or innocence by being mentally ill pleas, and that was your intent from
the beginning, I would have gone in completely different direction.
Spending the limited resources that the Government allocated to you to
attempt to convince me into a plea deal was not part of the intended plan.
We have now wasted 7 months of my life to be nowhere. Being creative, not
being like everyone else in a box does not equate mental illness. I do not
appreciate the constant reference to your belief that I am mentally ill or your
belief that I faked the results of the test merely because the results did not
support your theory of the case.
Your job is to defend me not package me for the purpose of an easy plea. In
my last meeting with you & Dr. Bone I felt like I was ambushed. The
accusations and language used by both of you which is still continuing is
what I would expect from an accuser not from my counsel. The last 7 months
should have been spent addressing the facts of the case rather than looking
for the simple way out. Early on it is apparent you bought into the
Government side of the case rather than attacking it or addressing my side.
With what little time we have we need to spend it building my case. To show
Government that report is of no benefit to my case. Rather showing that each
of the Government witnesses have a reason to lie, that I did not intently
mislead any investor and that the Governments attempt to make me look like
the ringmaster is not true.
On March 31, 2014, Murphy asked Holloway if he would agree to a second
psychological evaluation. Holloway wrote back:
It has been my written and verbal direction since retaining you to seek out
the truth that would prove same and get closure for me and my family.
5
Instead it seems evident that your intent is to take the easy road, try to prove
me insane, dump me and go on with your law practice. After multiple emails
and verbal instructions to cease the insults, and personal attacks yet you
continue. I will ask you one more time to stop the attacks. It is apparent that
you have no interest in defending me . . . spending 7 months doing nothing
to same. If you want out . . . get me a large delay and i will figure it out
myself. Its apparent the person who is afraid of the Prosecutor is you not me.
Answer is again no . . . Had i known you were going to this focused on trying
to ambush and almost extort me into saying uncle i would have never agreed.
Had i known the background of Bone whos deal is criminal insane plea . . .
same
The same day, Murphy filed the motion seeking a hearing on the competency issue.
On April 4, 2014, a federal magistrate judge held a status hearing. After
reviewing Murphy’s motion on competency and hearing from both parties, the judge
issued an Order for Competency Evaluation.
Scheduling the court-ordered competency evaluation caused even more friction
between Holloway and Murphy. Holloway was adamant that the evaluation not be
scheduled over a weekend and that he be given several weeks’ notice so that he could
take the best flights. He also pointed out to Murphy that the prosecutors scheduled the
evaluation over Easter weekend, and asked Murphy to request different dates. Murphy
followed up with prosecutors on Holloway’s request and later informed Holloway that
they “refuse to re-schedule the competency examination dates, even though I reminded
them it is Easter weekend. They are making arrangements to pay your air fare to come
here for the examination.”
Dr. Noel Gardner evaluated Holloway on April 19, 2014. He determined that
Holloway has “situational[ly] paranoid interpersonal perspectives” and has a “narcissistic
6
personality makeup.” He also concluded that Holloway has a “very mild form of
persistent hypomania.” But despite these conditions, Dr. Garner concluded that
Holloway “has the capacity but not the willingness to carefully assess [his] legal options”
and that Holloway did not have a “mental disease or defect” that would render him
incompetent “to stand trial.”
On June 3, 2014, the district court held another status conference hearing.4 The
district court invited Holloway to address the issue of his competency. Holloway stated:
Well, Your Honor, I trust the direction that—that my counsel is taking. I
certainly feel no lack of competency in going to court and telling the real
story, and have no lack of confidence that when we get there we’re going to
be able to prove innocence. So I’m not—I’m not—I certainly don’t want to
be—you know, I’m ready to go. I mean I have—I have no desire to
(unintelligible) negate my right to be able to have a fair trial. So I’m sure we
don’t want to go down that road.
At the hearing, Holloway also told the district court that he had not seen a
copy of Dr. Bone’s evaluation, although he asked for a copy, and that he learned of
the results from Dr. Garner’s evaluation during the hearing. The district court
eventually found that Holloway was competent to stand trial.
The day after the hearing, Holloway expressed his anger regarding Murphy’s
focus on competency. Holloway emailed Murphy that:
The competency fiasco is not behind us . . . It was your tact not mine. As far
as i am concerned and it is agreed by a great deal of people is we have wasted
1 year of valuable time based on the understanding that you do not
understand what the make up of a complex man is. You from day one
convicted me and really do believe what the prosecutors have. You have
4
Holloway claims that by this time his relationship with Murphy had
deteriorated so much that he and Murphy were no longer communicating by
telephone.
7
emphatically stressed that you think i am guilty and mentally ill and argued
with the judge that Gardner was wrong . . . . . so it is not behind us.
...
I am not mad at you but its not behind us. You humiliated your client by
going outside of my instructions and causing this entire delay.
Are we going to have a strategy or not? if so what is it.
I am calm yet focused. I am not going to sit back and trust your strategy
because so far you are on the same side as the Gov trying to bail and have
me plea.
Holloway also expressed his concern that Murphy should have spent more time
formulating a defense, stating that “[w]e clearly should have been preparing for trial 9
months ago instead of this last minute deal. I am not happy with how this is going.”
Ultimately, Holloway retained private counsel without informing Murphy. On
July 23, 2014, six days before trial was set to start, the prosecutors in this case received a
call from attorney Rebecca Skordas informing them that she had just received a retainer
to represent Holloway. She also informed the prosecutors that Holloway had asked her to
request a trial continuance. On July 25, 2014, prosecutors informed the district court of
this development. That same day, Murphy filed a motion to withdraw as Holloway’s
counsel. The motion stated:
Without passing judgment upon the propriety of defendant Holloway’s
request, it does behoove defense counsel, as a matter of courtesy, to present
the request to this Court. Also, as this motion was being drafted, defense
counsel received the prosecution’s sixteen-page “Notice of Defendant’s
Potential Motion to Substitute Counsel and Move for at [sic] Trial
Continuance.”
...
8
The prosecutors characterize Defendant’s request as a “last-minute,
desperate attempt to manipulate the legal system . . . .” That seems
unnecessarily harsh. It will suffice to respond that defendant Holloway’s
judgment is suspect.
The district court held a hearing on the motion and the final pretrial conference on
July 28, 2014. The district court was prepared to permit Skordas to enter an appearance
as Holloway’s counsel, but after a recess, Holloway agreed to proceed to trial with
Murphy and Murphy’s co-counsel. The district court denied Holloway’s motion to
continue the trial and denied Murphy’s motion to withdraw. The case proceeded to trial
as planned.
During the government’s case-in-chief, it called witnesses who testified regarding
the numbers of investors in US Ventures. Four main investor groups invested in US
Ventures. Representatives of each group testified at trial that their groups lost money.
Although each group received some money back from their investments, representatives
of each group testified that collectively each group lost money during Holloway’s
scheme. Their testimony indicated that at least 363 individual investors invested in US
Ventures.5
5
Robert Andres, head of Winsome Investment Trust, testified that Winsome
Investment Trust had “about 239, 240, 260” individual investors. Klein testified that
the bank records showed that Winsome Trust investors gave Holloway $24.7 million,
but they received only $14.5 million back.
David Story, majority owner of US Ventures International, testified that US
Ventures International had “approximately a hundred individual investors.” Klein
testified that US Ventures International investors gave Holloway approximately
$4.45 million, but they received only approximately $3.39 million back.
9
Roy Klein testified at trial. Klein was the “court appointed receiver” in the related
civil matter recovering funds. The government explained that it called Klein “only as a
summary witness of the bank records.”
For his part, Klein testified that he worked on “a related civil matter” and had
“familiarity with the bank records of U.S. Ventures.” He explained that his staff had
prepared spreadsheets summarizing 5,300 pages of bank records. He then detailed the
amounts that investor groups had paid Holloway and the amounts they had received back.
Holloway had requested that Murphy defend him on a theory of intent, but at the
end of trial the jury convicted Holloway on all counts. Holloway then appealed. See
United States v. Holloway, 826 F.3d 1237 (10th Cir. 2016). He raised four issues, two of
which are relevant here.
First, Holloway raised what we interpreted as an ineffective assistance of counsel
claim based on “a total breakdown in communication between him and his appointed
counsel.” Holloway, 826 F.3d at 1242. We did not, however, reach that issue “because
‘[i]neffective assistance of counsel claims should be brought in collateral proceedings,
not on direct appeal.’” Id. at 1243 (quoting United States v. Galloway, 56 F.3d 1239,
1240 (10th Cir. 1995)).
Duane Johnson and Ralph Thompson of Novus Technologies testified.
Approximately twenty-four Novus Technologies investors invested with Holloway.
Novus Technologies investors invested approximately $872,000 and they received
only approximately $266,000 back.
Casey Hall of RCH-2 did not testify about the number of investors involved.
Roy Klein testified that the RCH-2 investors gave Holloway approximately $3.2
million, but they received only $168,461.90 back.
10
Second, Holloway claimed that the district court erred in calculating the applicable
Guideline range—specifically, that “there was no evidence presented at any time showing
that each of the 250-plus investors suffered an ‘actual loss.’” Id. at 1250–51; see also
U.S.S.G. § 2B1.1(b)(2)(C). But at sentencing Holloway “failed to object, as he [did] on
appeal, to the number of ‘victims’ being over 250.” Id. at 1251. Indeed, at sentencing he
argued “there was insufficient evidence showing that he was aware there were 250
‘victims’ . . . .” Id. (emphasis in original). Because Holloway failed to object to the
number of victims at sentencing, we reviewed his claim for plain error. We concluded
that “any error was not plain.” Id. at 1251–52.
After we affirmed Holloway’s conviction and sentence, Holloway filed a 28
U.S.C. § 2255 motion. In his motion, he raised three grounds for relief. First, he
reasserted his ineffective assistance of counsel claim based on a complete breakdown
of communication between him and his trial counsel. Second, he claimed that the
government failed to prove there were 250 or more victims and that by failing to
object Murphy provided ineffective assistance. Finally, Holloway argued the
prosecution violated his due process rights by not turning over to the defense
favorable information in the custody of the receiver.
The district court denied Holloway’s § 2255 motion, but granted Holloway a
certificate of appealability on all three issues raised in his motion. We address each issue
in turn.
II.
11
“We review the district court’s legal rulings on a § 2255 motion de novo and its
findings of fact for clear error.” United States v. Orange, 447 F.3d 792, 796 (10th Cir.
2006).
We review mixed questions of law and fact de novo. This includes ineffective
assistance of counsel claims and claims brought under Brady v. Maryland, 373 U.S. 83
(1963). Hickman v. Spears, 160 F.3d 1269, 1273 (10th Cir. 1998) (ineffective assistance
of counsel claims); Banks v. Reynolds, 54 F.3d 1508, 1516 (10th Cir. 1995) (Brady
claims).
III.
A.
Holloway contends a total breakdown in communication existed between him and
his trial counsel and that breakdown caused a violation of his Sixth Amendment right to
effective assistance of counsel.
Ineffective assistance of counsel claims ordinarily require a showing of both
deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687
(1984). But in “certain circumstances a presumption of ineffectiveness arises making it
unnecessary to examine [the] actual performance of counsel.” United States v. Soto
Hernandez, 849 F.2d 1325, 1328 (10th Cir. 1988) (citing United States v. Cronic, 466
U.S. 648, 658 (1984)). This rule may apply when there has been a “complete breakdown
in communication between an attorney and client.” Id.
While no precise definition exists of “[t]he types of communication breakdowns
that constitute ‘total breakdowns,’” generally “a defendant must put forth evidence of a
12
severe and pervasive conflict with his attorney or evidence that he had such minimal
contact with the attorney that meaningful communication was not possible.” United
States v. Lott (“Lott I”), 310 F.3d 1231, 1249 (10th Cir. 2002). We consider four factors
when determining whether a complete breakdown in communication rendered a
defendant’s representation constitutionally ineffective:
1) whether the defendant’s motion for new counsel was timely; 2) whether
the trial court adequately inquired into defendant’s reasons for making the
motion; 3) whether the defendant-attorney conflict was so great that it led to
a total lack of communication precluding an adequate defense; and 4)
whether the defendant substantially and unreasonably contributed to the
communication breakdown.
Id. at 1250 (citing Romero v. Furlong, 215 F.3d 1107, 1113 (10th Cir. 2000)). Applying
these four Romero factors, the district court concluded that no complete breakdown in
communication rendered Holloway’s representation ineffective. Holloway v. United
States, No. 2:17-CV-267, 2018 WL 1831835, at *2–3 (D. Utah Apr. 16, 2018).
Holloway contends the district court erred when it analyzed each Romero
factor. We now analyze each factor and conclude that no total breakdown in
communication occurred.
First, we consider whether Holloway “made a timely motion requesting new
counsel.” Romero, 215 F.3d at 1113. Holloway contends his motion for new counsel
was timely, even though he filed it six days before a long-scheduled multi-week trial
because: (1) the district court did not find that he filed the motion simply for the
purpose of delay; (2) he was unable to retain counsel of his choice until late in the
process for financial reasons; and (3) although the deadline for filing a motion to
13
substitute counsel was set 21 days before trial, his counsel did not inform him of that
deadline.
None of these arguments convince us that Holloway’s motion was timely.
First, while the district court did not find that Holloway filed the motion to delay
trial, throughout the litigation the district court warned Holloway that if he wanted to
hire private counsel he needed to do so quickly. (“We’re not going to delay this trial
date. And so if you hire a lawyer . . . it has got to be by the end of the calendar year
so he can get in and get up to speed and maintain all of the dates that we have got.”).
More importantly, Holloway submitted an affidavit in support of his § 2255 motion
that stated if he “had known of the 21-day deadline, [he] would have retained Ms.
Skordas earlier, because my friend who paid her retainer for me had the funds
available.” Because by his own admission he could have hired counsel earlier, but
nevertheless decided to wait until six days before trial, we are convinced the motion
was untimely.
Next, we examine whether the trial court adequately inquired into the matter.
Romero, 215 F.3d at 1113. Significantly, at the hearing on Murphy’s motion to
withdraw, the district court did not specifically inquire into the total breakdown of
communication between Holloway and Murphy. Murphy’s motion, however, never
expressly raised the issue. Indeed, Murphy informed the district court that he
requested to withdraw as counsel because Holloway had obtained private counsel
(Skordas).
14
At the same hearing, the district court granted Murphy a recess after denying
the motion to withdraw so that Murphy, Skordas, and Holloway could meet and
discuss Skordas’s role. When they returned, Murphy explained to the district court
that Skordas would not make her appearance as Holloway’s counsel at the time.
Murphy then represented, in Holloway’s presence and with no objection from
Holloway, that they had discussed whether Holloway “might wish to make a record
on his own behalf” in connection with the motion to “[c]ontinue the trial and
substitute counsel,” but that he had declined.6
Under these circumstances, where neither counsel nor the defendant indicated
that a total breakdown of communication existed, and both had an opportunity to do
so, we conclude the district court adequately inquired into the matter. See Romero,
215 F.3d at 1114 (concluding “we . . . doubt whether the trial court failed to make an
adequate inquiry under the circumstances,” where the appellant made an ambiguous
statement that may have put the trial court on notice of his complete breakdown of
communication claim and where the appellant failed to renew his objection after his
counsel indicated that the trial court’s resolution would adequately resolve any
conflict).
6
Holloway claims his conflict with Murphy began as early as March 24, 2014.
Yet, the district court held multiple hearings prior to the hearing on Murphy’s motion
to withdraw in which Holloway could have informed the district court of his
displeasure with Murphy’s representation. Recall, Holloway represented to the
district court on June 3, 2014 that he “trust[ed] the direction that” Murphy was taking
and that he and Murphy were “all good.”
15
Third, we consider whether the conflict between Holloway and Murphy was so
great as to result in a total breakdown of communication precluding an adequate
defense. Romero, 215 F.3d at 1113. Specifically, Holloway argues that:
(1) Murphy’s motion to withdraw indicated that his judgment was “suspect”;
(2) Murphy repeatedly sought to have him declared incompetent; and (3) Murphy’s
belief that he was incompetent controlled Murphy’s approach to the case and usurped
his right to determine the objective of his case.7 None of Holloway’s arguments
cause us to conclude that any conflict between Holloway and Murphy was so great as
to result in a total lack of communication precluding an adequate defense.
Conflict that results in a total breakdown of communication exists where the
defendant and counsel could not, in any manner, communicate. See, e.g., Brown v.
Craven, 424 F.2d 1166, 1170 (9th Cir. 1970) (holding that when a defendant and his
counsel did not communicate because of an “embroiled . . . irreconcilable conflict”
the defendant was “deprive[d] . . . of the effective assistance of . . . counsel . . . .”).
A total breakdown can also exist where the defendant and counsel are embroiled in a
“stormy [relationship] with quarrels, bad language, threats, and counter-threats.”
United States v. Williams, 594 F.2d 1258, 1260 (9th Cir. 1979); but see United States
v. John Doe No. 1, 272 F.3d 116, 124 (2d Cir. 2001) (concluding that while the
7
Holloway also pointed to the fact that Murphy learned that he retained
private counsel from the government. Because that fact relates to Holloway’s
actions, not Murphy’s, we address this argument under the final Romero factor—
“whether the defendant substantially and unreasonably contributed to the breakdown in
communication.” Romero, 215 F.3d at 1113.
16
relationship between defendant and counsel “was at times intense as a result of
[defendant’s] violent and aggressive nature, the conflict between the two was not ‘so
great that it . . . resulted in total lack of communication preventing an adequate
defense.’” (quoting United States v. Simeonov, 252 F.3d 238, 241 (2d Cir. 2001)).
Meanwhile, certain contacts between a defendant and counsel can establish
that no complete breakdown in communication occurred. For example, in United
States v. Lott (“Lott II”), 433 F.3d 718, 721 (10th Cir. 2006), Lott’s counsel did not
provide Lott with any discovery and never visited Lott in jail. Yet, we concluded
“there was not a lack of communication precluding an adequate defense” because:
(1) counsel met with Lott and his probation officer in person to prepare the PSR; (2)
counsel had a policy permitting his clients to call him collect from jail at any time,
Lott was aware of that policy, and Lott made at least one call to counsel; (3) counsel
sent Lott letters, “including one attaching a copy of the PSR and asking for comments
or corrections;” and (4) counsel met in person with Lott in a holding area before
sentencing. Id. at 725; see also United States v. Vaughan, 119 F. App’x 227, 231
(10th Cir. 2004) (unpublished disposition cited only for its persuasive value)
(concluding that the third Romero factor was not satisfied when counsel argued for
their client at sentencing).
In this case, Holloway claims that Murphy’s description of his judgment as
“suspect” evinces the “adversarial divide” between them. The statement arose in
Murphy’s motion to withdraw in response to prosecutors’ claims that Holloway
requested a change of counsel in a “last-minute, desperate attempt to manipulate the
17
legal system.” Murphy replied, “[t]hat seems unnecessarily harsh. It will suffice to
respond that defendant Holloway’s judgment is suspect.”
Referring to Holloway’s judgment as “suspect” is not the type of egregious
conduct in which a presumption of prejudice arises under Cronic. See, e.g.,
Turrentine v. Mullin, 390 F.3d 1181, 1208 (10th Cir. 2004) (“This Court has
repeatedly found the Cronic presumption inapplicable where counsel actively
participated in all phases of the trial proceedings.” (internal quotation marks
omitted)); United States v. Coleman, 835 F.3d 606, 612 (6th Cir. 2016) (“[T]he
presumption of prejudice applies only in limited, egregious circumstances . . . .” (internal
quotation marks omitted)). Indeed, that comment tells us nothing about the
relationship between Holloway and Murphy except that Murphy contested the
government’s negative characterization of his client’s motives. Accordingly, we
conclude this lone statement by defense counsel does not evince a “severe and
pervasive” conflict. Lott I, 310 F.3d at 1249.
Holloway also argues that his counsel’s focus on competency shows a conflict
resulting in a total breakdown in communication. In United States v. Boigegrain, 155
F.3d 1181, 1187 (10th Cir. 1998), we held that “[t]he Sixth Amendment . . . [does]
not require that [a] public defender adhere to the defendant’s apparent wish to avoid
the competency issue.” “[W]hen a lawyer has reason to believe that her client may
not be mentally competent to stand trial, she does not render ineffective assistance of
counsel by making her concerns known to the court.” Id. This is because “[t]he
Constitution prohibits a court from trying defendants who are mentally incompetent.”
18
Id. at 1188 (citing Pate v. Robinson, 383 U.S. 375, 378 (1966)). And “[d]efense
counsel is often in the best position to determine whether a defendant’s competency
is questionable.” Bryson v. Ward, 187 F.3d 1193, 1201 (10th Cir. 1999), cert.
denied, 529 U.S. 1058 (2000). Thus, “the defendant’s lawyer is not only allowed to
raise the competency issue, but, because of the importance of the prohibition on
trying those who cannot understand proceedings against them, she has a professional
duty to do so when appropriate.” Boigegrain, 155 F.3d at 1188.
Here, Murphy had reason to believe that Holloway might not have been
mentally competent to stand trial. Dr. Bone’s evaluation concluded that Holloway
was competent; yet, his supplemental evaluator memorandum expressed his belief
“that [Holloway] is likely compromised with regard to judgment, decision-making,
and assisting properly in his defense.” But unlike the evaluation, the supplemental
evaluator memorandum arose out of a meeting between Dr. Bone, Holloway, and
Murphy. The meeting’s purpose was to discuss Dr. Bone’s findings from the initial
evaluation. The purpose was not to reevaluate Holloway. Yet after that meeting, Dr.
Bone provided the supplemental evaluator memorandum, in which he described a
renewed concern for Holloway’s competency to stand trial.
After receiving the supplemental evaluator memorandum, Murphy
appropriately raised Holloway’s competency with the district court in order to seek
an additional opinion. And while Holloway criticizes his counsel’s attempts to have
him declared incompetent, he indicated that he understood the purpose of his
19
evaluation was to determine if he could form the requisite intent to defraud the
victims.
Holloway also asserts that Murphy’s intent-based defense usurped his ability
to control the objective of his case. But strategic disputes do not establish conflicts
that support total breakdown in communication claims. United States v. Hutchinson,
573 F.3d 1011, 1025 (10th Cir. 2009) (“‘strategic disagreement[s],’ while no doubt
unhelpful to a productive working relationship, are ‘not sufficient to show a complete
breakdown in communication.’” (alteration in original) (quoting Lott II, 433 F.3d at
725)); Lott I, 310 F.3d at 1249 (“Good cause for substitution of counsel consists of
more than a mere strategic disagreement between a defendant and his attorney . . .
rather there must be a total breakdown in communications.” (internal citation
omitted)); cf. Hale v. Gibson, 227 F.3d 1298, 1323 (10th Cir. 2000) (concluding that
Cronic was not implicated where counsel “made a reasonable strategic decision to
concede some involvement by Hale, given the overwhelming evidence presented at
trial, and focused on the extent of his involvement and whether others could have
been involved”). And defenses pursued (or not pursued) at trial are quintessentially
strategic decisions. Gonzalez v. United States, 553 U.S. 242, 248 (2008)
(“[D]ecisions by counsel are generally given effect as to what arguments to
pursue . . . .”); Anderson v. Attorney Gen. of Kan., 425 F.3d 853, 859 (10th Cir.
2005) (“Whether to raise a particular defense is one aspect of trial strategy . . . .”).
Here, Holloway expressly represented to Murphy that he wanted to contest the
intent element of the wire fraud charges against him. Indeed, Holloway asked
20
Murphy to convince the jury that he “did not intent[ionally] mislead any investor.”
Because Holloway sanctioned a defense based on intent, we are not convinced that
Murphy “usurped” his ability to define the objective of his defense.8 Accordingly,
Murphy’s pursuit of an intent-based defense at trial does not support a complete
breakdown of communication claim.
Finally, we consider whether Holloway “substantially and unjustifiably
contributed to the breakdown in communication.” Romero, 215 F.3d at 1113. “A
defendant cannot simply manufacture a breakdown in communication and thereby give
rise to a constitutional violation.” Id. at 1114.
Holloway contends no evidence exists that his actions contributed to the strained
communication with counsel, but the record is to the contrary. As Holloway points out,
Murphy heard about his retention of private counsel from prosecutors, not from
8
In McCoy v. Louisiana, 138 S. Ct. 1500, 1508–11 (2018), the Supreme Court
held that a defendant has an autonomy right (i.e., the “[a]utonomy to decide . . . the
objective of the defense”) to assert actual innocence, and where counsel has violated
that right, no showing of prejudice is necessary. Unlike ineffective assistance of
counsel jurisprudence, “a client’s autonomy, not counsel’s competence, is in issue.”
Id. at 1510–11. “These are not strategic choices about how best to achieve a client’s
objectives; they are choices about what the client’s objectives in fact are.” Id. at
1508 (emphases in original). Holloway relies on McCoy to suggest that counsel
usurped Holloway’s right to determine the objective of his defense.
Clearly McCoy permits a free-standing autonomy claim. But Holloway did
not present that claim to the district court and the district court did not grant a COA
for such a claim. Further, the Supreme Court recognized in McCoy that the disputes
there “were not strategic disputes about whether to concede an element of a charged
offense.” Id. at 1510 (emphasis added). Meanwhile, the disputes here are strategic
disputes. And as noted above, Holloway expressly requested his counsel attack the
intent element of the government’s case against him.
21
Holloway himself. Holloway chose not to communicate directly with Murphy about an
issue that directly affected his representation. Indeed, Holloway stopped taking
Murphy’s calls and limited their communication to email. This undoubtedly contributed
to a tense relationship. Finally, much of Holloway’s hostility is attributable to the
competency proceedings, which, as we just concluded, counsel had an obligation to
pursue.
In sum, we conclude that the Romero factors do not support Holloway’s
contention that he suffered a complete breakdown in communication with Murphy that
rendered his representation ineffective.
B.
Holloway also argues that his counsel’s failure to object to a six-level sentencing
enhancement for 250 or more victims under U.S.S.G. § 2B1.1(b)(2)(C) deprived him of
effective assistance of counsel. As we explained in Holloway’s direct appeal,
The [district] court calculated Mr. Holloway’s Guideline range as 188 to 235
months and sentenced him to a term of imprisonment of 225 months. Part of
that calculation came from a six-level enhancement that applies if a crime
“involved 250 or more victims.” U.S.S.G. § 2B1.1(b)(2)(C) (2014). A
victim was defined as “any person who sustained any part of the actual loss,”
§ 2B1.1 n.1, and “actual loss” was defined as “the reasonably foreseeable
pecuniary harm that resulted from the offense.” Id. at n.3.
Holloway, 826 F.3d at 1250.
In applying the enhancement, the district court appears to have extrapolated from
the testimony of seven witnesses that the number of victims exceeded 250. Holloway
contends these witnesses’ testimony did not establish by a preponderance of the evidence
22
the existence of 250 or more victims. Because Holloway believes his counsel overlooked
this objection, he contends his counsel provided ineffective assistance.
We evaluate ineffective assistance of counsel claims using the framework
provided in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a
defendant “must show both that his counsel’s performance ‘fell below an objective
standard of reasonableness’ and that ‘the deficient performance prejudiced the defense.’”
Byrd v. Workman, 645 F.3d 1159, 1167 (10th Cir. 2011) (emphasis omitted) (quoting
Strickland, 466 U.S. at 687–88). “Courts are free to address these two prongs in any
order, and failure under either is dispositive.” Id. at 1168.
“[O]ur review of counsel’s performance under the first prong of Strickland is a
‘highly deferential’ one.” Id. (quoting Hooks v. Workman, 606 F.3d 715, 723 (10th Cir.
2010)). We employ “a strong presumption that counsel provided effective assistance.”
United States v. Kennedy, 225 F.3d 1187, 1197 (10th Cir. 2000). To be constitutionally
deficient, counsel’s performance “must have been ‘completely unreasonable, not merely
wrong, so that it bears no relationship to a possible defense strategy.’” Hoxsie v. Kerby,
108 F.3d 1239, 1246 (10th Cir. 1997) (quoting Hatch v. Oklahoma, 58 F.3d 1447, 1459
(10th Cir. 1995)). Indeed, “we start by presuming, absent a showing to the contrary, that
an attorney’s conduct is objectively reasonable because it could be considered part of a
legitimate trial strategy.” Bullock v. Carver, 297 F.3d 1036, 1047 (10th Cir. 2002). The
defendant bears the “heavy burden” of overcoming that presumption. Fox v. Ward, 200
F.3d 1286, 1295 (10th Cir. 2000). And “the absence of evidence cannot overcome the
‘strong presumption that counsel’s conduct [fell] within the wide range of reasonable
23
professional assistance.’” Burt v. Titlow, 571 U.S. 12, 23 (2013) (alteration in original)
(quoting Strickland, 466 U.S. at 689).
Here, Holloway failed to establish that his counsel was constitutionally ineffective.
Holloway correctly asserts that: (1) testimony at trial established that US Ventures had at
least 363 investors; (2) the government’s case-in-chief only included the testimony of
seven investors who testified to their losses during the scheme; and (3) no testimony was
presented during trial or at sentencing regarding the specific number of investors who
were made whole before the scheme ended.9 But Holloway has not overcome the
strong presumption that, under all the circumstances, the challenged action “might be
considered sound trial strategy.” Strickland, 466 U.S. at 689 (emphasis added); cf.
Lott v. Trammell, 705 F.3d 1167, 1186 (10th Cir. 2013) (“Appellant must
demonstrate . . . that the challenged action could not be considered sound trial
strategy.”). Indeed, Holloway does not even advance an argument in this regard.
The strong presumption in favor of attorney competence assumes that counsel
makes a strategic evaluation after considering the relevant costs and benefits of
certain actions. Here, while Holloway’s argument is colorable, the case law is not
settled in this Circuit. In other contexts we have approved reasonable estimates during
sentencing. See, e.g., United States v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005)
(“[W]hen the actual drugs . . . are not seized, the trial court may rely upon an estimate to
9
We also note that an individual is not a “victim” who suffered an “actual
loss” under § 2B1.1(b)(2) if the individual is “fully and timely reimbursed.” See
United States v. Orr, 567 F.3d 610, 616 (10th Cir. 2009).
24
establish the defendant’s guideline offense level so long as the information relied upon
has some basis of support in the facts of the particular case and bears sufficient indicia of
reliability.” (internal quotation marks omitted)). But we have not addressed this type of
extrapolation. Other circuits have reached different conclusions in analogous
circumstances. Compare United States v. Savarese, 686 F.3d 1, 16 (1st Cir. 2012)
(affirming a district court that determined that ten or more credit card companies were
victims under U.S.S.G. § 2B1.1(b)(2)(A) because: (1) the co-conspirators executed
fraudulent transactions on 107 credit cards, which each resulted in actual loss to the
financial institution that issued that card; (2) most credit cards were destroyed after use,
but 23 were issued by five different institutions; (3) there was additional evidence that a
sixth issuer was harmed), with United States v. Brown, 771 F.3d 1149, 1160 (9th Cir.
2014) (rejecting the argument that “the district court could determine that 100 [out of
405] victims had their financial security substantially endangered solely by extrapolating
from the 27 out of 29 victim impact statements provided to it”). Thus, the benefits of
objecting were unclear.
Furthermore, an objection could have harmed Holloway. At sentencing, Murphy
sought leniency from the district court, imploring it to depart from the Guideline range to
account for Holloway’s mental proclivities.10 An objection could have resulted in
additional evidence regarding individual victims, which counsel could have reasonably
10
The parties did not include the sentencing transcript in the record on appeal.
Nevertheless, we take judicial notice of district court filings. See United States v.
Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010) (taking judicial notice of district court
record that was not part of the record on appeal).
25
believed would reduce the likelihood of leniency. Accordingly, we conclude that
Holloway failed to overcome the presumption that his counsel’s actions were strategic.
See Hanson v. Sherrod, 797 F.3d 810, 829 (10th Cir. 2015) (“[W]hen counsel focuses on
some issues to the exclusion of others, there is a strong presumption that he did so for
tactical reasons rather than through sheer neglect.” (quoting Yarborough v. Gentry, 540
U.S. 1, 8 (2003)).
Nevertheless, Holloway argues that “a valid sentencing challenge overlooked by
trial counsel satisfies both prongs of the Strickland analysis.” In support, Holloway relies
on United States v. Kissick, 69 F.3d 1048 (10th Cir. 1995) and United States v. Glover,
97 F.3d 1345 (10th Cir. 1996). Neither case persuades us that Holloway’s counsel was
ineffective.
In Kissick, defense counsel “fail[ed] to challenge the use of a prior conviction to
classify the defendant as a career offender when that prior conviction [was] facially
insufficient” to satisfy the requirements for the career offender classification. Kissick, 69
F.3d at 1056 (emphasis added). There, we concluded that counsel’s failure to object
satisfied the deficient performance prong under Strickland. Id. Similarly, in Glover we
held that “[w]hen counsel has unwittingly relieved the government of its burden of proof,
particularly when the evidence of record does not satisfy that burden, it is fair to say
counsel has ‘so undermined the proper functioning of the adversarial process that [it]
cannot be relied on as having produced a just result.’” Glover, 97 F.3d at 1349 (alteration
in original) (footnote omitted) (quoting Strickland, 466 U.S. at 686). But we emphasized
26
that the sentencing “issue counsel failed to raise was clearly meritorious.” Id. (emphasis
added).
In both Kissick and Glover, counsel failed to raise clearly meritorious arguments
and there was no indication that the defendant could have been prejudiced if counsel
objected. Here, the objection was not a clear winner and could have prejudiced
Holloway. Thus, counsel’s failure to object to the number of victims is reasonably
attributable to sentencing strategy. For those reasons, we are not persuaded that either
Kissick or Glover dictate our resolution of Holloway’s claim.
Accordingly, Holloway failed to carry his burden with respect to this claim.
IV.
Finally, Holloway argues that the prosecution violated his due process rights by
failing to turn over evidence in the receiver’s possession. Holloway seeks all the
documents in the receiver’s possession. The district court construed this claim as a Brady
violation and denied relief.
“[T]he suppression by the prosecution of evidence favorable to an accused . . .
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. To
establish a Brady violation, the defendant bears the burden of establishing that: the
prosecution suppressed evidence; the evidence was favorable to the accused; and the
evidence was material. Smith v. Sec’y of N.M. Dep’t of Corr., 50 F.3d 801, 824 (10th
Cir. 1995). The “prosecution” includes “not only the individual prosecutor handling the
case, but also extends to the prosecutor’s entire office, as well as . . . other arms of the
27
state involved in investigative aspects of a particular criminal venture.” Smith, 50 F.3d at
824 (internal citation and footnote omitted).
Holloway contends that the receiver was a member of the prosecution team, and
thus the prosecution had a duty to ask the receiver to provide it with all exculpatory and
material documents.11 “A Brady claim fails if the existence of favorable evidence is
merely suspected.” United States v. Erickson, 561 F.3d 1150, 1163 (10th Cir. 2009).
The defendant bears the burden of establishing that the evidence exists. Id. Here,
Holloway’s Brady violation fails because he does not even attempt to argue that the
documents in the receiver’s possession are favorable to him. Indeed, he claims he cannot
evaluate favorability because he has not seen the receiver’s documents. Speculation is
insufficient to establish favorability under Brady. United States v. Acosta-Gallardo, 656
F.3d 1109, 1117 (10th Cir. 2011) (concluding that the defendant failed to establish
favorability under Brady where “no one knows whether the results [of the fingerprint
analysis] would have been favorable” to the defendant); Sandoval v. Ulibarri, 548 F.3d
902, 915 (10th Cir. 2008) (explaining that the defendant had the burden to establish “his
11
The district court concluded that the receiver did not fall within the
prosecution team because he was an officer of the court. Holloway, 2018 WL
1831835, at *4. We have not addressed whether a court-appointed receiver can be a
member of the prosecution team for Brady purposes. Because we resolve this issue on
other grounds, we do not reach that question.
28
[Brady] theory was more than speculation”). Here, Holloway offers even less than
speculation. Thus, Holloway’s Brady claim necessarily fails.12
We note that Holloway seeks access to all the documents in the receiver’s
possession. To the extent this request may be construed as a discovery motion, we
conclude that he waived the argument. See Adler v. Wal–Mart Stores, Inc., 144 F.3d
664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are
waived.”). Holloway’s briefing referenced only a Brady violation, made no mention of
discovery, and did not cite the proper standard for discovery in § 2255 proceedings. See
Rule 6(a) of the Rules Governing Section 2255 Proceedings. Indeed, neither party
briefed the issue of whether Holloway is entitled to discovery in the § 2255 context to the
district court or on appeal. Accordingly, Holloway waived any argument for discovery.
AFFIRMED.
12
As to materiality, “[u]nder Brady, evidence is material if it creates a
reasonable probability that, had the evidence been disclosed to the defense, the result
of the proceedings would have been different.” United States v. Acosta-Gallardo,
656 F.3d 1109, 1117 (10th Cir. 2011) (internal quotation marks omitted). “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. (quoting Scott v. Mullin, 303 F.3d 1222, 1230 (10th Cir. 2002).
Holloway fails to allege that the documents are material. But, even if he had,
at trial the prosecution presented overwhelming evidence of Holloway’s guilt,
including Holloway’s own emails describing his operation of US Ventures as a
“Ponzi deal.” We doubt that any documents in the possession of the receiver would
undermine our confidence in the outcome of the case, particularly because
Holloway’s defense strategy focused on his mental culpability, not on whether he
was engaged in the underlying conduct itself.
29