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Judge Palermo’s Report and Recommendation & Order — United States v. Kasali (Dkt. 488, S.D. Tex.)

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A report and recommendation and order by United States Magistrate Judge Dena Hanovice Palermo in United States v. Lola Kasali, Criminal No. 4:21-CR-00054, in the U.S. District Court for the Southern District of Texas, Houston Division, entered May 7, 2026 as Document 488. It addresses Kasali's motion to vacate her sentence under 28 U.S.C. § 2255 (ECF No. 448), noting that after her conviction she was sentenced to 70 months of imprisonment, later reduced to 57 months. It recommends that the motion be denied with prejudice because none of the grounds can support relief under § 2255, and addresses whether a certificate of appealability should issue.

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Filed May 7, 2026 in Lola Kasali; one of 4 filings from this case.

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Court	U.S. District Court for the Southern District of Texas
Filed	2026-05-07

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“Judge Palermo’s Report and Recommendation & Order — United States v. Kasali (Dkt. 488, S.D. Tex.).” U.S. District Court for the Southern District of Texas, No. 4:21-cr-00054, Doc. 488, filed 2026-05-07. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/lola-kasali-v-united-states-of-america/2026-05-07-judge-palermo-s-report-and-recommendation-order-dkt-488/, SHA-256 447e765fca6ddce165069edf3b73789233abb51da8da2d46a17682db36a572c3.

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Case 4:21-cr-00054 Document 488 Filed 05/07/26 in TXSD Page 1 of 11
United States District Court
Southern District of Texas

ENTERED
May 07, 2026
UNITED STATES DISTRICT COURT
Nathan Ochsner, Clerk
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

UNITED STATES OF AMERICA §
§
v. § CRIMINAL NO. 4:21-CR-00054
§
LOLA KASALI §

JUDGE PALERMO’S REPORT AND RECOMMENDATION & ORDER

Pending before the Court is Defendant Lola Kasali’s motion to vacate her

sentence, brought under 28 U.S.C. § 2255. ECF No. 448. 1 Under Rule 3 of the Rules

Governing § 2255 Proceedings for the United States District Courts, the motion must

be entered on the criminal docket of the case in which the challenged judgment was

entered, thus, it has been filed in this criminal case, No. 4:21-cr-54. R. Gov. Sec.

2255 Proceedings 3(b). 2 Rule 4 requires the court to promptly examine the motion,

its attached exhibits, and the record of prior proceedings. R. Gov. Sec. 2255

Proceedings 4(b). If the motion shows the movant is not entitled to relief, the Court

1
The district judge to whom this case is assigned referred all pending matters and matters related
to the Supervised Release Petition, ECF No. 396, to this Court. Order, ECF No. 411. Under
Rule 10 of the Rules Governing Section 2255 Proceedings, a magistrate judge may perform the
duties of a district judge pursuant to 28 U.S.C. § 636. Since the motion to vacate references the
Supervised Release Petition, ECF No. 448, this motion is properly before the Court.
2
The motion was originally filed as a separate civil proceeding in Civil No. 4:26-cv-2441 but was
transferred into this criminal case.

Case 4:21-cr-00054 Document 488 Filed 05/07/26 in TXSD Page 2 of 11

must dismiss the motion and direct the clerk to notify the movant. Id.3 Having

conducted the required examination, and considering the briefing and applicable

law, the Court finds that Defendant’s motion is without merit and should be

dismissed. 4

I. BACKGROUND.
Defendant was convicted of four counts of fraud in April 2022. United States

v. Kasali, 111 F.4th 637, 640 (5th Cir. 2024), cert. denied, 145 S. Ct. 1462, 221 L.

Ed. 2d 572 (2025); ECF No. 377 at 3 (filed on August 2, 2024). Following her

conviction, she was sentenced to 70 months of imprisonment and five years of

supervised release on each count, running concurrently. Kasali, 111 F.4th at 642;

ECF No. 377 at 6.5 She appealed her conviction and sentence, contending the district

court erred in “(1) denying her motions to substitute counsel, (2) conducting the first

day of her trial in her absence, (3) applying a sentencing enhancement under

intended loss, and (4) awarding restitution to the [Small Business Administration]

when no actual loss occurred.” Kasali, 111 F.4th at 642–43; ECF No. 377 at 6. The

Fifth Circuit affirmed. Kasali, 111 F.4th at 640; ECF No. 377 at 1.

3
Under Rule 9, the movant must obtain an order from the court of appeals before presenting a
second or successive motion.
4
The Government filed a motion seeking an extension to respond, ECF No. 458, which the Court
granted, Order, ECF No. 459. Defendant filed two motions to strike the Government’s motion,
ECF No. 458, and the Court’s order, ECF No. 459, or the order of detention, ECF No. 427. ECF
No. 471, 477. Defendant’s motions are without merit and are denied.
5
Defendant’s sentence was later reduced to 57 months under revised sentencing guidelines. Order,
ECF No. 371.

Case 4:21-cr-00054 Document 488 Filed 05/07/26 in TXSD Page 3 of 11

Defendant now moves to vacate her sentence, asserting four constitutional

violations: (1) denial of her right to be present at trial; (2) a stipulation regarding

sentencing enhancements was entered without her knowledge or consent;

(3) ineffective assistance of counsel due to conflicts with counsel; and (4) inability

to retain counsel of her choice because she was denied the right to make phone calls.

ECF No. 448 at 6–10.

II. STANDARD FOR A MOTION TO VACATE UNDER § 2255.

“It is well settled that following a conviction and exhaustion or waiver of the

right to direct appeal, courts presume a defendant stands fairly and finally

convicted.” Plata-Garza v. United States, No. CR 7:23-00679-2, 2026 WL 942243,

at *13 (S.D. Tex. Jan. 28, 2026) (quoting United States v. Cervantes, 132 F.3d 1106,

1009 (5th Cir. 1998)), adopted, No. 7:23-CR-00679-2, 2026 WL 939625 (S.D. Tex.

Apr. 6, 2026). A federal prisoner may move to vacate, set aside, or correct their

sentence on four limited grounds: (1) constitutional violations; (2) jurisdictional

challenges; (3) challenges to the sentence length as in excess of the statutory

maximum; and (4) claims that the sentence is otherwise subject to collateral attack.

Id. (quoting 28 U.S.C. § 2255(a)).

Where claims under those grounds are raised on appeal, however, they are

foreclosed for review in a § 2255 motion. Rogers v. United States, No. 4:24-CR-

0002-P, 2025 WL 3677528, *3 (N.D. Tex. Dec. 18, 2025) (citing United States v.

Case 4:21-cr-00054 Document 488 Filed 05/07/26 in TXSD Page 4 of 11

Kalish, 780 F.2d 506, 508 (5th Cir. 1986)). Moreover, a petitioner cannot raise a

new issue “for the first time on collateral review without showing both ‘cause’ for

his procedural default, and ‘actual prejudice’ resulting from the error.” Plata-Garza,

2026 WL 942243, at *13 (quoting United States v. Shaid, 937 F.2d 228, 232 (5th

Cir. 1991)). This “rigorous standard” applies even where fundamental constitutional

error is alleged. Id. (quoting Shaid, 937 F.2d at 232). There is a limited exception to

this requirement: “where ‘a constitutional violation has probably resulted in the

conviction of one who is actually innocent.’” Id. (quoting Shaid, 937 F.2d at 232).

III. DEFENDANT’S MOTION SHOULD BE DENIED.

A. Defendant’s Motion Is Untimely.
A motion brought under 28 U.S.C. § 2255 must be filed within one year of

the latest of four events, which here is the date the judgment became final. Id. at *12

(citing 28 U.S.C § 2255(f)(1)). A judgment becomes final when the Supreme Court

denies certiorari review. Ramirez v. Lumpkin, No. 7:18-CV-386, 2024 WL 4509123,

at *40 (S.D. Tex. May 31, 2024) (citing Giesberg v. Cockrell, 288 F.3d 268, 271

(5th Cir. 2002 (per curiam)), adopted in part, rejected in part, No. 7:18-CV-0386,

2024 WL 4491822 (S.D. Tex. Oct. 15, 2024).

The Supreme Court denied Defendant’s petition for a writ of certiorari on

March 24, 2025. ECF No. 394. The judgment became final on that date. Ramirez,

2024 WL 4509123, at *40. Defendant’s deadline to file her motion under § 2255

Case 4:21-cr-00054 Document 488 Filed 05/07/26 in TXSD Page 5 of 11

was one year later, March 24, 2026. Her motion was filed on March 26, 2026. ECF

No. 448. It is untimely on the face of the motion and record. 28 U.S.C § 2255(f)(1).

However, under Rule 3, an inmate filing is timely if deposited in the internal

mailing system of the institution where the inmate is confined on or before the last

day for filing. R. Gov. Sec. 2255 Proceedings 3(d). The motion is signed and dated

March 23, 2026 in handwriting, ECF No. 448 at 14, however, Rule 3 requires a

declaration or notarized statement setting forth the date of deposit and that first-class

postage has been prepaid. R. Gov. Sec. 2255 Proceedings 3(d). The form contains a

preprinted declaration that the motion was placed in the prison mail system, but it

does not state that the postage was prepaid. Defendant has filed no such declaration

or statement otherwise, only stating in her motion that it is timely. ECF No. 448 at

13 (“motion is timely”); id. at 20 (same). Thus, she has failed to prove that the filing

was timely under the Rules.

The Defendant’s motion therefore should be denied on this basis.

B. Defendant’s Claim She Was Denied Her Right To Be Present At
Trial and Ineffective Assistance of Counsel Are Barred Because
They Were Raised On Appeal.
Even if the Court were to consider Defendant’s untimely motion, two of her

arguments fail because they were raised and addressed in her direct appeal. Rogers,

2025 WL 3677528, *3. First, Kasali asserted that she was denied her constitutional

right to be present at trial. ECF No. 448 at 6. The Fifth Circuit, applying de novo

Case 4:21-cr-00054 Document 488 Filed 05/07/26 in TXSD Page 6 of 11

review, determined that she had waived her right to be present at trial, finding that

her “actions and continued misconduct were sufficient for the district court to imply

a voluntary waiver of [Defendant]’s presence” at trial.” Kasali, 111 F.4th at 648;

ECF No. 377 at 15. Because this claim was raised on appeal, it is foreclosed for

review in a § 2255 motion. Rogers, 2025 WL 3677528, *3 (citing Kalish, 780 F.2d

at 508).

As her third argument, Kasali claims ineffective assistance of counsel due to

conflicts with her appointed counsel and that she was not permitted to substitute

counsel. ECF No. 448 at 9–10. The Fifth Circuit detailed the district court’s denials

of her motions to substitute counsel, finding no error because Defendant’s

“intransigence was the root cause of the attorney-client communication issues.”

Kasali, 111 F.4th at 641, 643–44; ECF No. 377 at 9. Because the Fifth Circuit has

already decided this issue, it cannot be the basis of a § 2255 motion. Rogers, 2025

WL 3677528, *3.

Defendant’s motion asserting denial of her right to be present at trial and

ineffective assistance of counsel are without merit.

C. Defendant’s Claim of Ineffective Assistance Of Counsel and
Inability to Retain Counsel Fail Because Defendant Does Not
Demonstrate Cause And Prejudice For Failing To Raise These
Issues On Appeal.

Finally, Defendant’s remaining arguments—that her right to effective

assistance of counsel was violated because of sentencing enhancements agreed to

Case 4:21-cr-00054 Document 488 Filed 05/07/26 in TXSD Page 7 of 11

without her consent, and that she could not make phone calls to retain her own

counsel of choice—fail because she does not demonstrate cause for failing to raise

these grounds as error on direct appeal and prejudice. ECF No. 448 at 7, 9; Plata-

Garza, 2026 WL 942243, at *13.

“‘This cause and actual prejudice standard presents ‘a significantly higher

hurdle’ than the ‘plain error’ standard [applied] on direct appeal.’” Plata-Garza,

2026 WL 942243, at *13 (quoting Shaid, 937 F.2d at 232 (citing United States v.

Frady, 456 U.S. 152, 168 (1982))). “[A] petitioner must explain why the

constitutional or jurisdictional claim was not brought up on direct appeal (the cause

for the procedural default to not appealing the issue) and the harm caused by said

claim (the prejudice resulting from such claim).” Id. “This ‘rigorous standard’ is

applied ‘to ensure that final judgments command respect and that their binding effect

does not last only until the ‘next in a series of endless postconviction collateral

attacks.’” Id. (citing Shaid, 937 F.2d at 232 (quoting Frady, 456 U.S. at 165-66)).

Defendant claims that she raised both issues on appeal in her motion, but the

Fifth Circuit’s opinion does not address these specific constitutional violations, so

Defendant has failed to prove cause. In addition, Defendant has failed to explain the

harm caused. ECF No. 448 at 7–11. Because Defendant has not met her significantly

higher burden, these arguments cannot support a motion under § 2255. See Plata-

Garza, 2026 WL 942243, at *13.

Case 4:21-cr-00054 Document 488 Filed 05/07/26 in TXSD Page 8 of 11

Thus, these two claims are without merit.

IV. CONCLUSION

Defendant’s motion under § 2255 is untimely. Moreover, none of the grounds

asserted can provide the basis of a motion under § 2255. Therefore, the Court

RECOMMENDS that Defendant’s motion to vacate her sentence, ECF No. 448,

should be DENIED WITH PREJUDICE.

Certificate of Appealability

It is further recommended that the district judge deny a certificate of

appealability. An appeal may not be taken to the court of appeals from a final order

in a habeas corpus proceeding “unless a circuit justice or judge issues a certificate

of appealability.” 28 U.S.C. § 2253(c)(1)(A). The Rules Governing Section 2255

Proceeding instruct that the district judge “must issue or deny a certificate of

appealability when it enters a final order adverse to the applicant.” R. Gov. Sec. 2255

Proceedings 11. Because the Court recommends denial with prejudice of

Defendant’s motion to vacate, the Court may be required to address whether

Defendant is entitled to a certificate of appealability.

To be entitled to a certificate, the applicant must show she has made a

substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).

The statute requires “an overview of the claims in the habeas petition and a general

assessment of their merits.” Plata-Garza, 2026 WL 942243, at *24 (quoting Miller-

Case 4:21-cr-00054 Document 488 Filed 05/07/26 in TXSD Page 9 of 11

El v. Cockrell, 537 U.S. 322, 336 (2003)). For claims denied on their merits, “[t]he

petitioner must demonstrate that reasonable jurists would find the district court's

assessment of the constitutional claims debatable or wrong.” Id. (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000); United States v. Jones, 287 F.3d 325, 329 (5th

Cir. 2002) (applying the Slack standard to a COA determination in the context of a

§ 2255 proceeding)). Petitioner may also satisfy this standard by showing that

“jurists could conclude the issues presented are adequate to deserve encouragement

to proceed further.” Id. (citing Miller-El, 537 U.S. at 327; see also Jones, 287 F.3d

at 329). For claims that a district court rejects solely on procedural grounds, the

petitioner must show both that “jurists of reason would find it debatable whether the

petition states a valid claim of denial of a constitutional right and that jurists of

reason would find it debatable whether the district court was correct in its procedural

ruling.” Id. (quoting Slack, 529 U.S. at 484).

Based on the record and for the reasons explained above, Defendant would

not be able to demonstrate that reasonable jurists would find the “district court’s

assessment of the constitutional claims debatable or wrong[,]” nor would she be able

to show that the issues “deserve encouragement to proceed further.” Id. (citations

omitted). Accordingly, Defendant is not entitled to a certificate of appealability.

ORDER

The following motions are DENIED AS MOOT: ECF Nos. 443 (motion to

Case 4:21-cr-00054 Document 488 Filed 05/07/26 in TXSD Page 10 of 11

proceed IFP), 445 (motion to appoint counsel for evidentiary hearing), 446 (motion

to show cause against the Government why the motion to vacate should not be

granted), 447 (motion requesting copies of court documents), 449 (motion to amend

motion to vacate), 457 (emergency motion for hearing), 468 (motion for emergency

hearing), 469 (motion for a discovery hearing), 470 (motion for service of process),

475 (motion to show cause regarding appointment of expert witness), 476 (motion

for emergency hearing), 478 (motion for service of process), and 479 (motion for

discovery hearing).

It is further ORDERED that Defendant’s motions to revoke Judge Bryan’s

detention order, ECF No. 427, are DENIED as MOOT, ECF Nos. 467 & 474.

Defendant is no longer held in detention pursuant to Judge Bryan’s order, but

pursuant to Judge Palermo’s order, Minute Entry, dated Mar. 9, 2026 (Defendant is

remanded to custody) and R&R, ECF No. 464 (recommending term of supervised

release be revoked and Defendant be sentenced to additional prison time).

It is further ORDERED that Defendant’s motions to strike, ECF Nos. 471 &

477, are DENIED.

Notice to the Parties

The Parties have fourteen days from service of this Report and

Recommendation to file written objections. 28 U.S.C. § 636(b)(1)(C); FED. R.

CIV. P. 72(b). Failure to file timely objections will preclude review of factual

Case 4:21-cr-00054 Document 488 Filed 05/07/26 in TXSD Page 11 of 11

findings or legal conclusions, except for plain error. Quinn v. Guerrero, 863 F.3d

353, 358 (5th Cir. 2017).

The Clerk shall provide copies of this R&R and Order to Defendant and

counsel for the Government.

Signed at Houston, Texas, on May 7, 2026.|

_________________________________
Dena Hanovice Palermo
United States Magistrate Judge

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