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MEMORANDUM and ORDER denying 79 Motion to Vacate (2255); denying 113… — PPP Attempt Conspiracy Legal Filings (Dkt. 133)

No. 1:20-cr-00074-WES-LDA · Doc. 133 · Docket on CourtListener

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A Memorandum and Order by District Judge William E. Smith in United States v. David Staveley, No. 1:20-cr-00074-WES-LDA, in the U.S. District Court for the District of Rhode Island, filed August 11, 2023 as Document 133. It denies and dismisses Staveley's motion to vacate his sentence under 28 U.S.C. § 2255 (ECF No. 79). The order recounts that Staveley pleaded guilty on May 17, 2021 to conspiracy to commit bank fraud (Count 1) and failure to appear (Count 7), and was sentenced on October 7, 2021 to 56 months of incarceration and three years of supervised release. The court finds that he has not shown prejudice under Strickland from the actions or omissions of attorneys Mark Josephs and Jason Knight. It also denies his motions to amend and to compel, denies two time motions as moot, and declines a certificate of appealability under 28 U.S.C. § 2253(c)(2).

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Case 1:20-cr-00074-WES-LDA Document 133 Filed 08/11/23 Page 1 of 24 PageID #:
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

______________________________
)
UNITED STATES )
)
v. ) Cr. No. 20-074 WES
)
DAVID STAVELEY, )
)
Defendant. )
______________________________)

MEMORANDUM AND ORDER

WILLIAM E. SMITH, District Judge.

Defendant David Staveley has filed a motion to vacate, set

aside, or correct sentence pursuant to 28 U.S.C. § 2255 in the

above-captioned matter. See Mot. to Vacate, ECF No. 79. The

government has filed a response to the Motion to Vacate. Gov’t

Resp., ECF No. 117. The Court has determined that no hearing is

necessary. For the following reasons, the Motion to Vacate is

DENIED and DISMISSED.1

I. Background and Travel

As recounted by the Court of Appeals for the First Circuit:2

When the COVID-19 pandemic ravaged the nation, Congress
created emergency financial assistance programs to

1Staveley has also filed several additional motions, which
will be addressed at the end of this Memorandum and Order.

2The First Circuit took these facts from the change-of-plea
colloquy, the unchallenged portions of the presentence
investigation report (“PSR”), and the transcript of the sentencing
hearing. United States v. Staveley, 43 F.4th 9, 11 (1st Cir. 2022).
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ameliorate the economic consequences wrought by the
crisis. One of these programs—the Paycheck Protection
Program (PPP)—provided small businesses with funds
necessary to meet their employees’ salaries and other
operating expenses.

In April of 2020, the defendant—along with a co-
conspirator—submitted several false and fraudulent loan
applications seeking PPP funds. Those applications were
ostensibly made on behalf of various entities, claiming
that the entities had several employees and large
payrolls. In reality, those entities—at the time the
applications were made—either had no employees at all or
paid out no wages in the relevant time frame.

After these machinations came to light, the defendant
was charged by criminal complaint in the District of
Rhode Island. The affidavit accompanying the complaint
alleged in substance that the defendant had committed
bank fraud, had conspired to commit bank fraud, and had
perpetrated other federal crimes. While awaiting trial,
the defendant was released on personal recognizance and
was later required to stay in home confinement.

In disregard for the conditions of his release, the
defendant fled from the state. To avoid apprehension,
he staged a fake suicide and—while on the lam—used false
identities and stolen license plates. Those events led
to an additional federal charge for failing to appear in
court.

Staveley, 43 F.4th at 11-12 (internal citations omitted).

Staveley was apprehended by the United States Marshal Service

in Alpharetta, Georgia, on July 23, 2020. Tr. of May 17, 2021,

Change of Plea Hrng. (“Plea Hrng. Tr.”) 24, ECF No. 68; see also

Tr. of October 7, 2021, Sentencing Hrng. (“Sent. Hrng. Tr.”) 17,

ECF No. 69. In the meantime, he had missed a court appearance

scheduled for June 2, 2020. Plea Hrng. Tr. at 24. Staveley was

subsequently indicted by a grand jury in the District of Rhode
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Island. See Staveley, 43 F. 4th at 12; see also Indictment, ECF

No. 27.

On May 17, 2021, Staveley pleaded guilty to two counts of the

Indictment, charging him with conspiracy to commit bank fraud

(Count 1) and failure to appear in court as required (Count 7).

See Plea Hrng. Tr. at 26; Plea Agrmt. ¶ 1, ECF No. 42; see also

Staveley, 43 F.4th at 12. In exchange, the government agreed to

recommend a sentence within the range determined by the U.S.

Sentencing Guidelines (“USSG” or the “Guidelines”) and to dismiss

the remaining counts (Counts 2-6)3 of the Indictment at the time

of sentencing. Plea Hrng. Tr. at 11-12; see also Sent. Hrng. Tr.

at 20, 54; Plea Agrmt. ¶ 2.

Staveley was sentenced on October 7, 2021, to an aggregate

term of 56 months of incarceration, followed by three years of

supervised release. Sent. Hrng. Tr. at 63; J. 2-3, ECF No. 51;

see also Staveley, 43 F.4th at 12. He filed a Notice of Appeal,

ECF No. 53, as well as a motion for reconsideration, ECF No. 59.

The latter was denied by text order dated October 19, 2021. The

First Circuit dismissed Staveley’s appeal without prejudice to

bringing his ineffective assistance of counsel claims in a motion

3Counts 2-6 included three counts of bank fraud, one count
of making false statements to influence the Small Business
Administration (“SBA”), and one count of aggravated identity
theft. See Indictment ¶¶ 23-36.
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to vacate. Staveley, 43 F.4th at 19; see also First Circuit Op.,

ECF No. 72. Staveley did not seek further review. See Mot. to

Vacate at 2.4

On August 29, 2022, Staveley timely filed the instant Motion

to Vacate.

II. Legal Standard

A. Section 2255

Section 2255 provides in relevant part:

A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be
released upon 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, may move the court which imposed
the sentence to vacate, set aside or correct the
sentence.

28 U.S.C. § 2255(a).

Generally, the grounds justifying relief under 28 U.S.C.

§ 2255(a) are limited. A court may grant relief pursuant to § 2255

in instances where the court finds a lack of jurisdiction, a

constitutional error, or a fundamental error of law. United States

v. Addonizio, 442 U.S. 178, 185 (1979). “[A]n error of law does

not provide a basis for collateral attack unless the claimed error

constituted a fundamental defect which inherently results in a

Page numbers reflect the pagination generated by the Court’s
4

Electronic Filing System (“ECF”).
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complete miscarriage of justice.” Id. (internal quotation marks

omitted); see also Rosario-Rosado v. United States, CIVIL NO. 21-

1431 (RAM), 2023 WL 2665594, at *1 (D.P.R. Mar. 27, 2023) (“[A]part

from claims of constitutional or jurisdictional nature, a

cognizable section 2255 claim must reveal exceptional

circumstances that make the need for redress evident.” (quoting

David v. United States, 134 F.3d 470, 474 (1st Cir. 1998)))

(alteration in original). Moreover, § 2255 is not a substitute

for a direct appeal. Knight v. United States, 37 F.3d 769, 772

(1st Cir. 1994) (citing cases).

B. Strickland Standard

The standard for analyzing a claim of ineffective assistance

of counsel stems from Strickland v. Washington, 466 U.S. 668

(1984), which provides a two-pronged test for evaluating such

claims. Kholi v. Wall, CA No. 14-307-JJM, 2015 WL 567148, at *4

(D.R.I. Feb. 10, 2015). Under the “performance prong” of the

Strickland test, a defendant must show his counsel “made errors so

serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Strickland, 466

U.S. at 687. Under the “prejudice prong,” a defendant must show

that “the deficient performance prejudiced the defense.” Id. “The

benchmark for judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper functioning of the

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adversarial process that the trial cannot be relied on as having

produced a just result.” Id. at 686.

Strickland instructs that “[j]udicial scrutiny of counsel’s

performance must be highly deferential.” Id. at 689; see also id.

(“It is all too tempting for a defendant to second-guess counsel’s

assistance after conviction or adverse sentence, and it is all too

easy for a court, examining counsel’s defense after it has proved

unsuccessful, to conclude that a particular act or omission of

counsel was unreasonable.”). The court “must indulge a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial strategy.’”

Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

Moreover, “[a] fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Id. at 689.

The same principles apply in the context of guilty pleas.

See Hill v. Lockhart, 474 U.S. 52, 57 (1985). The Hill Court held

that “the two-part Strickland v. Washington test applies to

challenges to guilty pleas based on ineffective assistance of

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counsel.” Id. at 58; see also Padilla v. Kentucky, 559 U.S. 356,

371 n.12 (2010) (“In Hill, the Court recognized—for the first time—

that Strickland applies to advice respecting a guilty plea.”).

The first prong of the Strickland test is “nothing more than a

restatement of the standard of attorney competence” described

above. Hill, 474 U.S. at 58.

The second, or “prejudice,” requirement, on the other
hand, focuses on whether counsel’s constitutionally
ineffective performance affected the outcome of the plea
process. In other words, in order to satisfy the
“prejudice” requirement, the defendant must show that
there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.

Id. at 59; see also Lafler v. Cooper, 566 U.S. 156, 163 (2012)

(“In the context of pleas a defendant must show the outcome of the

plea process would have been different with competent advice.”);

Padilla, 559 U.S. at 372 (noting that “to obtain relief on this

type of claim, a petitioner must convince the court that a decision

to reject the plea bargain would have been rational under the

circumstances”). These predictions, as the Supreme Court

reiterated in Hill, should be made objectively. See 474 U.S. at

59-60.

III. Discussion

A. Motion to Vacate

Staveley argues that he received ineffective assistance of

counsel from two attorneys who represented him during these
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proceedings, Mark Josephs and Jason Knight, on several grounds.

The bottom line is this: Staveley has not demonstrated prejudice

under Strickland with respect to any of his claims regarding

counsel’s actions and/or omissions. Accordingly, the Motion to

Vacate must be denied.5

1. Mark Josephs

Although Staveley makes no allegations against Josephs in the

Motion to Vacate itself, he does so in other filings.6 Accordingly,

5Under Strickland, a defendant must make both showings. See
466 U.S. at 687. Accordingly, because Staveley has failed to
demonstrate prejudice, the Court need not address the performance
prong. See id. at 697 (“Although we have discussed the performance
component of an ineffectiveness claim prior to the prejudice
component, there is no reason for a court deciding an ineffective
assistance claim to approach the inquiry in the same order or even
to address both components of the inquiry if the defendant makes
an insufficient showing on one. In particular, a court need not
determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of
the alleged deficiencies.”).
6In addition to the allegations against Josephs, Staveley
also seeks to add another claim against trial counsel as well as
a claim against the government. See Mot. for Leave to Amend Pet.
23 (“Mot. to Amend”), ECF No. 113; Mot. to Show Prosecution/US
Attorney Failed to Provide Exculpatory Evidence 6-7 (“Mot. to Show
Failure to Provide”), ECF No. 82; Mot. Identifying Prejudice
Egregious Performance—Ineffective Counsel (“Mot. Identifying
Prejudice”) 1-3, ECF No. 83. The former is currently pending; the
latter two were denied without prejudice by text order on September
15, 2022, with the notation that: “These Motions include
allegations that are part of the Petitioner’s Motion to Vacate and
will be addressed when that motion is addressed by the Court.”

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the Court addresses Staveley’s contentions that Josephs provided

ineffective assistance.

According to Staveley:

Attorney Josephs represented Defendant in the early stages
of these proceedings, a period of eight (8) months, during
which time he did not communicate with the Defendant, did
not show or zealously assert evidence showing an illegal
search and never brought proof of Defendant’s location
which would have from the outset prevented negative court
action upon the Defendant. Josephs during his term of
representation of the Defendant took no action on the
Defendant’s behalf, as displayed in [the] Court Docket,
other than filing a withdrawal without prior
knowledge/notice or assent of the Defendant and to file a
motion for compassionate release for which the Defendant
was not yet entitled.

Def.’s Reply 3 (“Reply”), ECF No. 125; see also Mot. Identifying

Prejudice at 1-3.

The Court need not address in detail Staveley’s allegations

against Josephs because Staveley has not shown that he was

prejudiced by Josephs’ actions or omissions, i.e., that “there is

a reasonable probability that, but for counsel’s errors, he would

not have pleaded guilty and would have insisted on going to trial.”

Hill, 474 U.S. at 59.7 The Court, therefore, rejects Staveley’s

claim that he received ineffective assistance from Josephs.

7It is true that the motion for compassionate release was
initially not filed under seal, see Docket, despite containing
deeply personal information. That was error on Josephs’ part.
However, “[a]n error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment.”
Strickland, 466 U.S. at 691.
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2. Jason Knight

Staveley first alleges that Knight failed to provide him with

discovery materials prior to his signing the Plea Agreement. Mot.

to Vacate at 4. Although it strains credulity to believe that

Knight did not go over the evidence with Staveley before the change

of plea hearing, even assuming, arguendo, that that is the case,

Staveley heard the government’s recitation of the facts of the

case during the plea colloquy and agreed that they were accurate.

Plea Hrng. Tr. at 20-26.

At the outset of the hearing, the Court asked Staveley if he

had received a copy of the Indictment and had discussed it with

Knight; whether he had had an opportunity to read and discuss the

plea agreement with Knight before signing it; whether he understood

all the terms of the plea agreement; whether he was satisfied with

Knight’s representation; whether he understood that the terms of

the plea agreement were recommendations which the Court could

reject without allowing him to withdraw the plea and could sentence

him to a sentence more severe than he may anticipate; whether he

understood that he was pleading guilty to felony offenses and that

if the Court accepted the plea and adjudged him guilty of those

offenses he could be deprived of certain valuable civil rights.

Id. at 9-11. To all these questions, Staveley responded

affirmatively, and he further denied that anyone made any promises

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or assurances to him not contained in the plea agreement, or

threatened him in any way, to persuade him to accept it. Id.

The Court then asked the government to place on the record

the elements of the two charges to which Staveley was pleading

guilty and the facts that the government would prove if the case

went to trial. Id. at 18-19. The Court advised Staveley to

“[l]isten carefully. At the end I’m going to ask you if you have

any questions and if you agree that those are the facts the

Government would present.” Id. at 19.

After listening to the government’s lengthy and detailed

recitation of the facts it would prove at trial, id. at 20-24,

Staveley stated that he agreed with the government, id. at 25.

The Court asked:

THE COURT: All right. Do you understand that you’re
admitting that those are the facts that the Government
would prove if this case were to go to trial?

THE DEFENDANT: Yes, your Honor.

THE COURT: And you’re admitting to those facts?

THE DEFENDANT: Yes, your Honor.

Id. 25-26. Then Court asked Staveley how he wished to plead,

guilty or not guilty. Id. at 26. Staveley replied, “Guilty, your

Honor.” Id.

The Court found that Staveley was “fully competent and capable

of entering an informed plea” and that “the plea of guilty is a

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knowing and voluntary plea supported by an independent basis in

fact containing each of the essential elements of the two charges.”

Id. at 26. Accordingly, the Court accepted the plea. Id.; see,

e.g., United States v. Spinks, 63 F.4th 95, 102 (1st Cir. 2023)

(“[T]he ‘district court [is] entitled to rely on the defendant’s

representations that he was satisfied with his counsel’s

handiwork, that he had reviewed the terms of the plea agreement

with his counsel, and that he understood all of those terms.’”

(quoting Staveley, 43 F.4th at 15)) (second alteration in

original); see also Lee v. United States, 582 U.S. 357, 369 (2017)

(noting that courts “should not upset a plea solely because of

post hoc assertions from a defendant about how he would have

pleaded but for his attorney’s deficiencies,” but “should instead

look to contemporaneous evidence to substantiate a defendant’s

expressed preferences”); Strickland, 466 U.S. at 689.

Whether Staveley viewed the actual evidence prior to signing

the plea agreement, Mot. to Vacate at 4, he clearly heard the

evidence during the plea colloquy. Surely, he was not hearing

these facts for the first time. Were that the case, logic dictates

that he would not, under oath, have agreed with and admitted to

the government’s recitation. See, e.g., Spinks, 63 F.4th at 102;

see also Staveley, 43 F.4th at 16 (noting “copious evidence that

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he fully understood his plea agreement and was satisfied with his

representation”).

Staveley now says, in his Reply, that “[b]ut for Attorney

Knight’s failure to provide Defendant with discovery materials and

to review those materials with Defendant, Knight’s repeated

improper threats to withdraw in a prejudicial manner and his

failure to request a continuance at sentencing as requested by

Defendant, the Defendant would have proceeded to trial.” Reply at

14.8 This argument is too little too late.

Leaving aside the fact that Staveley’s argument that he would

have gone to trial is not in the Motion to Vacate but, rather,

appears for the first time in his Reply, see United States v. Tosi,

897 F.3d 12, 15 (1st Cir. 2018) (“[A]rguments available at the

outset but raised for the first time in a reply brief need not be

considered.”), and is undeveloped, see Barreto-Barreto v. United

States, 551 F.3d 95, 99 (1st Cir. 2008) (declining to address

argument that petitioners “do not develop . . . beyond this

assertion”), such a decision would not have been “rational under

the circumstances” of the case, Padilla, 559 U.S. at 372.

The “threats to withdraw” Staveley mentions presumably
8

relate to his fourth ground for relief, discussed infra. The
request for continuance at sentencing to which Staveley refers
constitutes ground two of the Motion to Vacate, also addressed
infra.
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For example, looking only at the two counts to which Staveley

pleaded guilty, he could have received a statutory maximum sentence

of 40 years in prison — 30 years for the conspiracy charge and a

10-year consecutive sentence for failing to appear in court. See

PSR ¶ 117. Instead, he was sentenced to an aggregate 56-month

term of incarceration, Sent. Tr. at 63; J. at 2, within the

advisory guideline range of 51-63 months incarceration, Sent.

Hrng. Tr. at 12, 20; see also Plea Agrmt. ¶ 2a.

Further, the government agreed to — and did — dismiss Counts

2-6 of the Indictment as part of the Plea Agreement. See Sent.

Hrng. Tr. at 54; Plea Agrmt. ¶ 2e. Had Staveley been found guilty

of these additional counts, he would have been facing additional

prison time. As the government notes, the aggravated identity

theft count (Count 6) alone carries a mandatory minimum consecutive

sentence of two years. Gov’t Resp. at 15; see also 18 U.S.C.

§ 1028A(a)(1), (b)(2). Under these circumstances, the Court

cannot find that rejecting the plea would have been a rational

choice. See Padilla, 559 U.S. at 372.

The Court is aware that Staveley and Knight have differing

memories of what Knight did or failed to do. However, no matter

whose account is more accurate, Staveley has not shown “a

reasonable probability that, but for counsel’s unprofessional

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errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

Second, Staveley faults Knight for his failure to seek a

continuance at sentencing. Mot. to Vacate at 5. According to

Staveley, during the sentencing hearing the Assistant U.S.

Attorney (“AUSA”) indicated that Staveley “was a liar, regarding

being sexually assaulted by a [Federal Bureau of Prisons] guard

some years earlier.” Id. Staveley avers that Knight “not only

did not object, but was aware there was a U.S. Federal Court

ordered psychological report available that would demonstrate the

Defendant was truthful.” Id.

During the sentencing hearing, the AUSA stated:

I do want to spend a little while talking about this
Defendant as an individual because I know that’s what
Mr. Knight is probably going to be spending a significant
amount of time on. I don’t really think it’s appropriate
for me in this venue to talk about the allegations that
the Defendant made in the past. All I would say on that
point, your Honor, is reading through the presentence
report, there’s a lot of mixed information on that and
it’s very unclear. I’m not saying it didn’t happen, I
just don’t know; and I don’t think the Court can just
accept this Defendant’s word that that happened. It may
have; if it did, you know, I’m deeply sorry and I can’t
imagine how horrible it is, but there’s no factual basis
one way or the other.

Sent. Hrng. Tr. at 20-21.

It is true that Knight did not object at the time. See id.

But, when it was his turn to argue for a recommended sentence, he

asked the Court “to strongly consider compassion in this case as
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you figure out what to do about David Staveley and his sentence.

And I’m asking you to consider the man.” Id. at 25. Knight noted

that he had provided the Court with a detailed memo, which the

Court stated it had read. Id. The Court continued:

THE COURT: You’re free to go over anything you and
your client want, but I know there are personal details
in there.

MR. KNIGHT: Right. But I will say this. He’s got
bad PTSD, and the Government says that the source of
that PTSD, that is an allegation. But I gave the Court
medical records showing that the providers, the medical
providers believe it is the case, it is the diagnosis.
And a correctional setting, because of the nature of the
event, is what causes that PTSD; it’s what triggers him.
And they are back, those symptoms, so bad that he ran to
avoid jail, which is documented in Count VII.

Id. at 25-26.

It is clear from the foregoing that Knight was well aware of

Staveley’s prior experience, that Staveley carried a diagnosis of

PTSD as a result, that he had obtained medical records, and that

he had provided those medical records to the Court.9 There was,

9In sentencing Staveley, the Court recognized the need for
compassion:

But I am also mindful of the other factors under 3553(a)
besides deterrence of you and deterrence of the public;
and that the idea that you’re an individual human being
who deserves individual sentencing is absolutely true,
that you deserve my compassion and the compassion of
this court is absolutely true as well, and you have that.

The fact that serving time in prison for you is more
difficult because of the PTSD and the things that you’ve
been through, it is something that is awful and that
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therefore, no need for Knight to seek a continuance to further

investigate (and disprove) the AUSA’s statements, and Staveley was

not prejudiced by Knight’s failure to do so at that point. See

Vieux v. Pepe, 184 F.3d 59, 64 (1st Cir. 1999) (“Counsel is not

required to waste the court’s time with futile or frivolous

motions.” (quoting United States v. Wright, 573 F.2d 26, 27 (1st

Cir. 1978))). Staveley’s second claim is therefore rejected.

Relatedly, Staveley alleges that the AUSA withheld

exculpatory evidence from the defense and the Court. See Mot. to

Vacate at 5 (noting that AUSA was in possession of the document in

question and did not reveal it to the Court or provide it to the

defense); Mot. to Show Failure to Provide at 7-8. The “exculpatory

evidence” in question is a psychological report ordered by the

District of New Hampshire and completed in late June of 2015 by a

BOP psychiatrist at Brooklyn MDC. Mot. to Show Failure to Provide

at 6. This claim is baseless.

In Brady v. Maryland, 373 U.S. 83 (1963),

this Court cannot pretend to understand, but it’s also
a risk that you knew you were taking at the time that
you were engaging in this behavior.

Sent. Hrng. Tr. at 61-62; see also Staveley, 43 F.4th at 17 (“At
the disposition hearing, the district court acknowledged the
defendant’s PTSD ‘and the things that [the defendant had] been
through,’ which strongly indicates that the court gave at least
some credit to the defendant’s allegations of assault.”)
(alteration in original).

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the Supreme Court held that the government’s suppression
of evidence favorable to the accused violates due
process if the evidence is material to guilt or
punishment. To prevail on a Brady claim, “petitioner
must demonstrate: (1) the evidence at issue is favorable
to him because it is exculpatory or impeaching; (2) the
Government suppressed the evidence; and (3) prejudice
ensued from the suppression (i.e., the suppressed
evidence was material to guilt or punishment).”

Bucci v. United States, 662 F.3d 18, 38 (1st Cir. 2011) (quoting

Conley v. United States, 415 F.3d 183, 188 (1st Cir. 2005)). To

satisfy the prejudice, or materiality, prong, “the petitioner must

show there is ‘a reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding would

have been different.’” Id. (quoting Strickler v. Greene, 527 U.S.

263, 280 (1999)).

Staveley has not met any prong of the Brady test —

favorability, suppression, or materiality. See Bucci, 662 F.3d at

38. Staveley’s allegation that the AUSA withheld evidence is pure

speculation. See Mot. to Show Failure to Provide at 7 (“[B]eing

that many other psychological documents were offered from the BOP

in discovery, specifically other documents that were in the same

file as the Court ordered Psychological Report, it can only be

determined this key document was withheld and obstructed by the

Prosecution.”); see, e.g., United States v. Martinez Castro,

Criminal Action No. 15-10338-FDS-56, 2023 WL 2529635, at *2 (D.

18
Case 1:20-cr-00074-WES-LDA Document 133 Filed 08/11/23 Page 19 of 24 PageID
#: 1244

Mass. Mar. 15, 2023) (noting that court “need not give weight to

conclusory allegations”).

Moreover, Staveley has not shown that the report in question

was exculpatory in any way. If anything, the report was relevant

to sentencing, not guilt or innocence, and it is obvious from their

statements, quoted above, that both Knight and the Court were aware

of its contents (as was Staveley himself). Thus, whether Knight

received the report is irrelevant to the materiality, or prejudice,

question, as the incident and diagnosis described therein were

known to Knight (and the Court) at the time of sentencing. In

short, even assuming Staveley’s allegation regarding the AUSA

withholding the report is true, Staveley has not shown a

“reasonable probability” that the non-disclosure affected the

outcome of the proceeding. Barrett v. United States, 965 F.2d

1184, 1189 (1st Cir. 1992) (“The materiality test under Brady is

not met unless the nondisclosure of the evidence ‘undermine[s]

confidence in the outcome of the trial,’ which can occur only if

‘there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have

been different.’” (quoting United States v. Bagley, 473 U.S. 667,

682 (1985))) (alteration in original) (internal citation omitted);

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