Court filing

Order (1) Denying Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, ECF No. 123; and (2) Denying Certificate of Appealabilty — United States v. Mazzei (Dkt. 147, D. Haw.)

Summary

Judge J. Michael Seabright of the U.S. District Court for the District of Hawaii denied Christopher A. Mazzei’s pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence (ECF No. 123) and denied a certificate of appealability in this 42-page order dated May 1, 2026. Mazzei entered a plea of guilty on August 28, 2024, under a plea agreement, to conspiracy to commit wire fraud and conspiracy to commit money laundering, and was sentenced on January 9, 2025, to 36 months of incarceration, three years of supervised release and restitution of $1,418,174.70. The order states that the fraudulent conduct involved Paycheck Protection Program loans. It describes his arguments as a litany, many barred by the plea agreement’s collateral-attack waiver and others without basis in fact or law, and finds that reasonable jurists could not find its rulings debatable.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Filed May 1, 2026 in Christopher A. Mazzei; one of 2 filings from this case.

Record facts

Court	U.S. District Court for the District of Hawaii
Filed	2026-05-01

Cite this document

“Order (1) Denying Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, ECF No. 123; and (2) Denying Certificate of Appealabilty — United States v. Mazzei (Dkt. 147, D. Haw.).” U.S. District Court for the District of Hawaii, No. 1:22-cr-00045, Doc. 147, filed 2026-05-01. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/us-v-christopher-a-mazzei/2026-05-01-order-1-denying-motion-under-28-u-s-c-2255-to-vacate-set-asi-dkt-147/, SHA-256 c04cec289ebf56e736d14fdb45bea8b8ecbcc35e56e0aba48fbdfd469492aa4e.

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Case 1:22-cr-00045-JMS Document 147 Filed 05/01/26 Page 1 of 42 PageID.1671

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

UNITED STATES OF AMERICA, CR. NO. 22-00045 JMS-01
(CIV. NO. 26-00025 JMS-KJM)
Plaintiff-Respondent,
ORDER (1) DENYING MOTION
v. UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR
CHRISTOPHER A. MAZZEI, (01) CORRECT SENTENCE BY A
PERSON IN FEDERAL
Defendant-Petitioner. CUSTODY, ECF NO. 123; AND
(2) DENYING CERTIFICATE OF
APPEALABILTY

ORDER (1) DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE,
SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL
CUSTODY, ECF NO. 123; AND (2) DENYING CERTIFICATE OF
APPEALABILITY

I. INTRODUCTION

Before the court is pro se Defendant-Petitioner Christopher A.

Mazzei’s (“Defendant”) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or

Correct Sentence by a Person in Federal Custody (“§ 2255 Motion”). ECF No.

123.1 For the reasons discussed below, the court DENIES the § 2255 Motion and

DENIES a Certificate of Appealability.

1
All ECF citations in this Order are to the docket in the underlying criminal case, Cr.
No. 22-00045 JMS.

Case 1:22-cr-00045-JMS Document 147 Filed 05/01/26 Page 2 of 42 PageID.1672

II. BACKGROUND

A. Factual Background and Prior Proceedings

This background section sets forth only the facts necessary to

understand the general history of this case and place the § 2255 Motion into proper

context. As necessary, the court will address more specific facts as they relate to

particular claims raised in the § 2255 Motion.

Defendant and his wife, Erin Mazzei, were charged in a May 26, 2022

Indictment with: (1) conspiracy to commit wire fraud in violation of 18 U.S.C

§ 1349 (count 1); (2) wire fraud in violation of 18 U.S.C. § 1343 (count 2);

(3) conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h)

(count 3); and (4) money laundering in violation of 18 U.S.C. § 1957 (count 4).

ECF No. 1.

On August 28, 2024, Defendant entered a plea of guilty, pursuant to a

plea agreement, to counts 1 and 3 of the Indictment. ECF Nos. 77, 78. In return

for entering a plea of guilty, the United States agreed to dismiss counts 2 and 4

after sentencing and not to file additional charges against Defendant relating to:

(1) the submission of false statements to several mortgage lenders; and (2) identity

theft. ECF No. 78 at PageID.265–266. Defendant was sentenced on January 9,

2025, to a total term of incarceration of 36 months, a term of supervised release of

three years, and restitution in the amount of $1,418,174.70 (less amounts

Case 1:22-cr-00045-JMS Document 147 Filed 05/01/26 Page 3 of 42 PageID.1673

previously paid). See ECF Nos. 106, 107. In addition, the court ordered forfeiture

of real property located in Kapolei, Hawaii, real property located in Arroyo

Grande, California, and over $625,000 in United States currency. ECF No. 105

(forfeiture order).

Defendant’s plea agreement contains a waiver of his right “to

challenge his conviction or sentence or the manner in which it was determined in

any collateral attack, including, but not limited to, a motion brought under Title 28,

United States Code, Section 2255.” ECF No. 78 at PageID.281. This waiver

contains two exceptions: (1) if the court imposed a sentence above the guideline

range as determined by the court, then Defendant retained the right to collaterally

attack “the portion of his sentence greater than specified in that guideline range”;

and (2) a claim based on ineffective assistance of counsel. Id.2 Defendant signed

the plea agreement under the heading “AGREED.” Id. at PageID.294. And during

his August 28, 2024 change of plea hearing, Defendant confirmed that he read the

plea agreement, discussed it with counsel, and understood its terms. ECF No. 114

at PageID.1037–1038.

2
Defendant’s 36-month sentence fell within the guideline range as determined by the
court. With a guideline offense level 20 and criminal history category I, the advisory guideline
range was 33 to 41 months. See ECF No. 108 at PageID.978 and ECF No. 115 at PageID.1116–
1117.
3

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Defendant has been represented by several counsel throughout this

proceeding. First, Criminal Justice Act (“CJA”) attorney Richard Gronna

represented Defendant both pre- and post-indictment. He was appointed to

represent Defendant on July 26, 2021. See ECF No. 6 in Misc. No. 21-00299

LEK-KJM. On September 23, 2022, after Gronna’s motion to withdraw was

granted, CJA counsel Jason Say was appointed to represent Defendant. See ECF

Nos. 25, 26, 27. Say then filed a motion to withdraw, which was granted on April

21, 2023. See ECF Nos. 38, 41. CJA counsel Harlan Kimura was then appointed

to represent Defendant. ECF No. 43. On September 19, 2023, Andrew Marcantel,

an attorney in private practice from Chandler, Arizona, entered an appearance on

behalf of Defendant. ECF No. 49. On March 28, 2024, Marcantel withdrew as

counsel and Houston, Texas attorney Dan Cogdell entered an appearance on behalf

of Defendant. See ECF Nos. 71, 73. Cogdell represented Defendant at both his

change of plea and sentencing hearings.

Defendant now makes a litany of arguments, many of which are

barred, and others of which are without basis in fact or law.

B. Procedural Background

Defendant filed his § 2255 Motion on January 23, 2026. ECF No.

123. The United States filed its response on March 20, 2026, ECF No. 142.

Case 1:22-cr-00045-JMS Document 147 Filed 05/01/26 Page 5 of 42 PageID.1675

Defendant was afforded the opportunity to file a reply, ECF No. 140, but failed to

do so.3

III. SECTION 2255 LEGAL STANDARDS

The court’s review is governed by 28 U.S.C. § 2255(a), which

provides:

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.

A court may deny a § 2255 motion if “it plainly appears from the

motion, any attached exhibits, and the record of prior proceedings that the moving

party is not entitled to relief.” R. 4(b) Governing § 2255 Proceedings in the U.S.

Dist. Cts. A court need not hold an evidentiary hearing if the allegations are

“palpably incredible” or “patently frivolous or false” or if the issues can be

conclusively decided based on the evidence in the record. Blackledge v. Allison,

431 U.S. 63, 76 (1977) (internal quotation marks and citation omitted); see also

3
Defendant’s wife and co-defendant, Erin Mazzei, also filed a § 2255 Motion on
January 23, 2026, raising many of the same arguments that Defendant does. Because the two
motions raise many of the same issues, this Order often parallels the Order on Christopher
Mazzei’s § 2255 Motion.
5

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United States v. Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1998) (explaining that a

“district court has discretion to deny an evidentiary hearing on a § 2255 claim

where the files and records conclusively show that the movant is not entitled to

relief”). Conclusory statements in a § 2255 motion are insufficient to require a

hearing. United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993). Instead, to

require a hearing, a petitioner must allege specific facts that, if true, would entitle

the petitioner to relief. See United States v. Rodrigues, 347 F.3d 818, 824 (9th Cir.

2003) (citing United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996)).

Several limitations to raising a collateral attack apply to Defendant’s

§ 2255 Motion. These include restrictions precluding a collateral attack based on:

(1) a plea of guilty; (2) a plea agreement waiver (other than a claim of ineffective

assistance of counsel); (3) procedural default; and (4) a claim relating to a

forfeiture or restitution order. Further, if “a petitioner does not allege lack of

jurisdiction or constitutional error, an error of law will not provide a basis for

habeas relief unless that error resulted in a complete miscarriage of justice or in a

proceeding inconsistent with the rudimentary demands of fair procedure.”

Hamilton v. United States, 67 F.3d 761, 763–64 (9th Cir. 1995) (internal quotation

marks omitted); United States v. Addonzio, 442 U.S. 178, 185 (1979).

First, as to a plea of guilty, Tollett v. Henderson, 411 U.S. 258, 267

(1973), explained:

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[A] guilty plea represents a break in the chain of events
which has preceded it in the criminal process. When a
criminal defendant has solemnly admitted in open court
that he is in fact guilty of the offense with which he is
charged, he may not thereafter raise independent claims
relating to the deprivation of constitutional rights that
occurred prior to the entry of the guilty plea.

Thus, “when the judgment of conviction upon a guilty plea has

become final and the offender seeks to reopen the proceeding [in a collateral

attack], the inquiry is ordinarily confined to whether the underlying plea was both

counseled and voluntary.” United States v. Broce, 488 U.S. 563, 569 (1989). This

general rule does not apply “where on the face of the record the court had no

power to enter the conviction or impose the sentence.” Id.; see also United States

v. Chavez-Diaz, 949 F.3d 1202, 1207–08 (9th Cir. 2020) (explaining that the

exception “allows for constitutionally-based appeals—despite an unconditional

guilty plea—where the appeal, if successful, would mean that the government

cannot prosecute the defendant at all”). This exception exists where a defendant

challenges the government’s jurisdiction to prosecute him for the charges to which

he pled guilty. See United States v. Garcia-Valenzuela, 232 F.3d 1003, 1006–07

(9th Cir. 2000). Such challenges include claims of vindictive prosecution,

violation of the double jeopardy clause, challenges to the constitutionality of the

statutes underlying the indictment, and claims that the indictment fails to state an

offense. Id. at 1005–06; see also Class v. United States, 583 U.S. 174, 178 (2018).

Case 1:22-cr-00045-JMS Document 147 Filed 05/01/26 Page 8 of 42 PageID.1678

And there is a limitation on raising these claims—they must “be proved by relying

on the face of the indictment and on the record as it existed when the trial judge

accepted the guilty plea.” Garcia-Valenzuela, 232 F.3d at 1006 n.2; see also

Broce, 488 U.S. at 575–76. In an ineffective assistance of counsel context,

although “freestanding constitutional claims are unavailable to habeas petitioners

who plead guilty, claims of pre-plea ineffective assistance of counsel are

cognizable on federal habeas review when the action, or inaction, of counsel

prevents petitioner from making an informed choice whether to plead.” Mahrt v.

Beard, 849 F.3d 1164, 1170 (9th Cir. 2017).

Second, a waiver of appellate and/or § 2255 rights “is enforced if

(1) the language of the waiver encompasses [the defendant’s] right to appeal [or

bring a collateral attack] on the grounds raised, and (2) the waiver is knowingly

and voluntarily made.” United States v. Rodriguez, 49 F.4th 1205, 1212 (9th Cir.

2022) (internal quotation marks omitted).4 “To discern whether a waiver is

knowing and voluntary, we must ask ‘what the defendant reasonably understood to

be the terms of the agreement when he pleaded guilty.’” United States v. Medina-

Carrasco, 815 F.3d 457, 461 (9th Cir. 2016) (quoting United States v. De la

Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993)). The court assesses the knowing and

4
A waiver of the right to appeal is subject to the same analysis as a waiver of the right to
bring a collateral attack. Rodriguez, 49 F.4th at 1211–12 & n.3.
8

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voluntary nature of a waiver “by assessing the knowing and voluntary nature of the

plea agreement as a whole.” Rodriguez, 49 F.4th at 1212. “A plea agreement is

made knowingly if the defendant understands the terms and, to a certain extent, the

consequences of the agreement. A plea agreement is made voluntarily if the

defendant is not induced by promises or threats to enter the agreement.” Id.

(footnote, internal citation, and quotation marks omitted). In other words, as to

Defendant, the § 2255 waiver is enforceable other than to claims of involuntariness

of the waiver itself or a claim of ineffective assistance of counsel. See, e.g., United

States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993); United States v. Pruitt, 32

F.3d 431, 433 (9th Cir. 1994) (determining that a defendant may waive the right to

file a § 2255 motion to challenge the length of his sentence); Wondra v. United

States, 2024 WL 4665670, at *3 (D. Idaho Nov. 4, 2024) (“A defendant may waive

his statutory right to file a § 2255 motion challenging his sentence, and that waiver

is enforceable.”); see also United States v. Johnson, 67 F.3d 200, 203 (9th Cir.

1995) (explaining that a defendant who does not “foresee the specific issue that he

now seeks to appeal does not place that issue outside the scope of his waiver”);

United States v. Goodall, 21 F.4th 555, 562 (9th Cir. 2021) (“When a defendant

waives his appellate rights, he knows that he is giving up all appeals, no matter

what unforeseen events may happen.”).

Case 1:22-cr-00045-JMS Document 147 Filed 05/01/26 Page 10 of 42 PageID.1680

Third, a § 2255 defendant procedurally defaults claims that could

have been raised on direct appeal but were not. Bousley v. United States, 523 U.S.

614, 622 (1998). Procedural default can be overcome if a defendant demonstrates

either cause and actual prejudice or actual innocence. Id. Cause “must be

something external to the [movant], something that cannot fairly be attributed to

him.” Coleman v. Thompson, 501 U.S. 722, 753 (1991) (emphasis omitted);

Murray v. Carrier, 477 U.S. 478, 488 (1986). Thus, a plea agreement appeal

waiver provision does not constitute cause. Garcia-Santos v. United States, 273

F.3d 506, 508 (2d Cir. 2001); Norris v. United States, 2024 WL 4311671, at *8

(S.D. Ala. Sept. 5, 2024). A defendant who pled guilty is prejudiced if there is a

reasonable probability that, but for the error, he would not have pled guilty. United

States v. Werle, 35 F.4th 1195, 1198 (9th Cir. 2022). Exceptions to the cause and

prejudice requirement include (1) claims that could not be presented without

further factual development, and (2) ineffective assistance of counsel claims.

United States v. Braswell, 501 F.3d 1147, 1149 n.1 (9th Cir. 2007).

And last, a § 2255 motion cannot be used as a vehicle to collaterally

attack a restitution or forfeiture order:

28 U.S.C. § 2255 is available to prisoners claiming the
right to be released from custody. Claims for other[]
types of relief, such as relief from a restitution order,
cannot be brought in a § 2255 motion, whether or not
the motion also contains cognizable claims for release
from custody.
10

Case 1:22-cr-00045-JMS Document 147 Filed 05/01/26 Page 11 of 42 PageID.1681

United States v. Thiele, 314 F.3d 399, 400 (9th Cir. 2002); United States v. Finze,

428 F. App’x 672, 677 (9th Cir. 2011) (applying Thiele to bar a § 2255 challenge

to a forfeiture order); United States v. Kealoha, 2023 WL 3505328, at *4 (D. Haw.

May 17, 2023); see also 28 U.S.C. § 2255(a).

Because the court concludes that the § 2255 Motion can be decided

conclusively based on the existing record, the court will not hold an evidentiary

hearing. Further, the court decides the § 2255 Motion without a hearing pursuant

to Criminal Local Rule 12.2(a)(1).

IV. ANALYSIS

Defendant raises a myriad of grounds in his § 2255 Motion. The court

begins with Defendant’s claims of ineffective assistance of counsel and then

addresses Defendant’s remaining claims.

A. Ineffective Assistance of Counsel Claims

1. Legal Standard

The Sixth Amendment guarantees the right to effective assistance of

counsel at all critical stages of a criminal proceeding, including sentencing. See

United States v. Gonzalez, 113 F.3d 1026, 1029 (9th Cir. 1997). To prevail on an

ineffective assistance of counsel claim, a petitioner must show that (1) counsel’s

representation fell below an objective standard of reasonableness, and (2) there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

Case 1:22-cr-00045-JMS Document 147 Filed 05/01/26 Page 12 of 42 PageID.1682

proceeding would have been different. Strickland v. Washington, 466 U.S. 668,

687–88, 694 (1984). That is, the petitioner must show not only that there was a

deficiency, but that the deficiency was prejudicial. Id. at 692; see also Wiggins v.

Smith, 539 U.S. 510, 521 (2003) (“An ineffective assistance claim has two

components: A petitioner must show that counsel’s performance was deficient,

and that the deficiency prejudiced the defense.”). “[I]t is unnecessary to consider

the prejudice prong of Strickland if the petitioner cannot even establish

incompetence under the first prong.” Siripongs v. Calderon, 133 F.3d 732, 737

(9th Cir. 1998) (citing Hendricks v. Calderon, 70 F.3d 1032, 1039 (9th Cir. 1995)).

Counsel “is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment.” Strickland, 466 U.S. at 690. “[S]trategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after less than complete investigation

are reasonable precisely to the extent that reasonable professional judgments

support the limitations on investigation.” Id. at 690–91. Conclusory allegations of

ineffective assistance of counsel made with no factual or legal explanation fall well

short of stating a cognizable claim for ineffective assistance of counsel. See

Blackledge, 431 U.S. at 74 (1977) (“[P]resentation of conclusory allegations

unsupported by specifics is subject to summary dismissal . . . .”). Further,

Case 1:22-cr-00045-JMS Document 147 Filed 05/01/26 Page 13 of 42 PageID.1683

“[s]tatements made by a defendant during a guilty plea hearing carry a strong

presumption of veracity in subsequent proceedings attacking the plea.” United

States v. Ross, 511 F.3d 1233, 1236 (9th Cir. 2008); Blackledge, 431 U.S. at 73–74

(“[T]he representations of the defendant [at a plea hearing] . . . constitute a

formidable barrier in any subsequent collateral proceedings. Solemn declarations

in open court carry a strong presumption of verity.”); see also United States v.

Morrison, 113 F.3d 1020, 1021 (9th Cir. 1997) (“Any attempt to contradict the

factual basis of a valid plea must fail.”); United States v. Yamashiro, 788 F.3d

1231, 1237 (9th Cir. 2015) (finding that the district court did not err in denying a

motion to withdraw a guilty plea where the defendant’s under-oath statements

during a change-of-plea hearing contradicted his contention that the plea was not

voluntary and knowing). Absent a showing of extraordinary circumstances, a

defendant cannot overcome the presumption of veracity that attaches to under-oath

statements. Muth v. Fondren, 676 F.3d 815, 821–822 (9th Cir. 2012) (citing

cases); see also, e.g., Favela-Astorga v. United States, 2024 WL 4416977, at *5

(D. Ariz. Oct. 4, 2024); Chipman v. United States, 2023 WL 2184633, at *3 (W.D.

Wash. Feb. 23, 2023).

2. Allegations of Ineffective Assistance of Counsel Against Gronna

As set forth above, Gronna represented Defendant both pre-indictment

(from July 26, 2021 until May 26, 2022) and post-indictment (from May 26, 2022

Case 1:22-cr-00045-JMS Document 147 Filed 05/01/26 Page 14 of 42 PageID.1684

until September 23, 2022). Defendant claims that Gronna “did no motions, no

interviews, no files, no review, not even returning a phone call.” ECF No. 123 at

PageID.1228. He further claims that after he asked Gronna to challenge the

seizure of assets, Gronna requested to be removed from the case. 5 Id. This claim

fails for several reasons.

At least in part, Defendant’s argument fails as a legal matter—an

attorney cannot provide ineffective assistance of counsel pre-indictment. See

United States v. Olson, 988 F.3d 1158 (9th Cir. 2021) (stating that the Sixth

Amendment right to effective assistance of counsel does not attach prior to the

time that a defendant is formally charged). And Defendant points to no specific

actions that Gronna took or failed to take during the post-indictment period.

Instead, he simply lumps the two time periods together.

Further, Defendant fails to argue, let alone prove, any prejudice from

Gronna’s alleged shortcomings. See Rodriguez, 49 F.4th at 1213 (explaining that

to prove prejudice a defendant must demonstrate that absent deficient performance

by counsel, he would “either have gone to trial or received a better plea bargain”)

(citations omitted). And finally, Defendant has not shown that Gronna’s

5
The record actually shows something different—Gronna requested to be removed as
counsel after Defendant filed an ethics complaint against Gronna with the Hawaii Supreme
Court’s Disciplinary Board, not based on a disagreement over the filing of a motion. See ECF
No. 21.
14

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representation prevented him “from making an informed choice whether to plead.”

Mahrt, 849 F.3d at 1170. In short, Defendant’s conclusory statements are

insufficient to meet his burden.6 Blackledge, 431 U.S. at 74 (“[P]resentation of

conclusory allegations unsupported by specifics is subject to summary

dismissal . . . .”).

3. Allegations of Ineffective Assistance of Counsel Against Cogdell

Liberally construed, Defendant claims that Cogdell provided

ineffective assistant of counsel because he: (i) provided substandard representation

due to an illness of his wife; (ii) failed to respond to various requests by Defendant

“on the subject of filing a [United States Sentencing Guideline section] 5K1.1”

6
Defendant also claims that Gronna violated his right to a speedy trial without
consulting him. In fact, there was no Speedy Trial Act violation under 18 U.S.C. § 3161 et seq.
during the period that Gronna represented Defendant. See ECF Nos. 6 (setting the initial trial
date on August 9, 2022) and 12 (stipulation and order continuing the trial date, and waiving time
under the Speedy Trial Act, from August 9, 2022 until June 6, 2023). In short, Defendant fails to
show that his speedy trial rights were violated in any way. Further, a knowing and voluntary
guilty plea forecloses a collateral attack as to events antecedent to the guilty plea, unless the
court lacked the power to enter a conviction and impose sentence. See Broce, 488 U.S. at 569.
And this bar applies to challenges based on a violation of the Speedy Trial Act. See United
States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992) (“By pleading guilty, Bohn waived his right to
assert a violation of the Speedy Trial Act.”). Finally, to the extent Defendant argues that Gronna
was ineffective by agreeing to continue the trial date and waive time under the Speedy Trial Act
without consulting him, that decision constitutes a scheduling matter, part of “an attorney’s
prerogative” which “may be decided without client approval.” United States v. Moore, 2021 WL
5702157, at *4 (D. Idaho Dec. 1, 2021); see also United States v. Gates, 709 F.3d 58, 66 (1st Cir.
2013) (“We hold, therefore, that in the ordinary course and within the confines of the [Speedy
Trial Act] exclusion provisions, defense counsel has the power to seek [a Speedy Trial Act]
continuance without first informing his client or obtaining his client’s personal consent.”).

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motion;7 (iii) failed to argue actual loss versus intended loss under the sentencing

guidelines; (iv) failed to present “crucial evidence,” including “evidence that banks

were not fully knowledgeable of the guidelines of the PPP program, banks that

were now being incentivized to turn in those that had received PPP loans, and

legitimate business evidence of the Ohana Project”; (v) failed to argue improper

venue; (vi) failed to argue a Brady v. Maryland, 373 U.S. 83 (1963), violation8;

(vii) failed to point out misstatements made by the prosecutor during sentencing;

(viii) failed to question the court’s comments regarding restitution and forfeiture at

sentencing; (ix) failed to withdraw as Defendant’s counsel after the change of plea

hearing; (x) failed to object to a plea agreement that prohibited “ALL downward

departures;” (xi) failed to object when a DOJ investigator posed as a court official

and called to verify a character letter provided to the court; and (xii) failed to

object when the AUSA threatened to prosecute Defendant’s mother. See ECF No.

123 at PageID.1216–1217, 1228–1229.

7
Under Guideline § 5K1.1, “upon motion of the government stating that the defendant
has provided substantial assistance in the investigation or prosecution of another person who has
committed an offense, a sentence that is below the otherwise applicable guideline range may be
appropriate.”
8
Under Brady, “the prosecution has an obligation, imposed by the Due Process Clause,
to produce evidence favorable to an accused . . . where the evidence is material either to guilt or
to punishment. Evidence is material 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.”
United States v. Cano, 934 F.3d 1002, 1022 (9th Cir. 2019) (internal citations and quotation
marks omitted).
16

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The court addresses each claim in turn.

i. Substandard representation due to illness of wife

Defendant contends that because Cogdell’s wife was ill, Cogdell

provided ineffective assistance of counsel. 9 In support of this argument, Defendant

attaches emails in which he expresses displeasure with Cogdell’s services. See,

e.g., ECF No. 123 at PageID.1236–1238. But even assuming that Cogdell’s wife

was ill and that he was preoccupied as a result, Defendant fails to show (1) that

Cogdell’s conduct fell below an objective standard of reasonableness due to his

wife’s illness, or (2) that even if it did, Defendant was prejudiced in any way.

Defendant’s conclusory allegations do not satisfy his burden. Blackledge, 431 U.S.

at 74 (“[P]resentation of conclusory allegations unsupported by specifics is subject

to summary dismissal . . . .”).

ii. Failing to communicate with the government regarding a
possible § 5K1.1 motion

Defendant claims that Cogdell “did not respond to numerous requests

from Petitioner for a [section] 5K1.1” motion. ECF No. 123 at PageID1216. To

the extent that Defendant alleges that Cogdell failed to discuss the possibility of

cooperation with the government, he is mistaken. Cogdell spoke to the assigned

9
Defendant also claims the Sixth Amendment was violated because a “personal injury
attorney” handled his criminal case. But Cogdell was privately retained by Defendant, not
appointed by the court. And to the extent he is referring to Gronna, Say, or Kimura, they are
experienced criminal defense attorneys that participated in the court’s CJA panel for years. This
claim is both conclusory and not based in fact.
17

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Assistant United States Attorney (“AUSA”) about the possibility of cooperation

and a § 5K1.1 motion on April 17, 2024, June 12, 2024, July 10, 2024, and

November 25, 2024. ECF No. 142-2 at PageID.1523–1524. Then, on January 8,

2025, Cogdell sent the AUSA an email, which stated in part, “[a]s I have

mentioned to you before, [Defendant] has always been interested in assisting the

Government in prosecuting other folks . . . .” ECF No. 123 at PageID.1239. The

AUSA’s response also refers to a previously raised offer to cooperate. ECF No.

142-2 at PageID.1524 (“I passed this information along to the agents when you

first made the offer.”). Cogdell was not deficient in failing to raise the possibility

of a § 5K1.1 motion with the government. And even if he was, Defendant has

failed to show that he was prejudiced as a result. 10

iii. Failing to argue “actual loss” versus “intended loss” under the
guidelines

Defendant claims that Cogdell stated that he “would argue actual loss

vs. intended loss” under the sentencing guidelines, and that United States v. Banks,

55 F.4th 246 (3d Cir. 2022), supports this position. ECF No. 123 at PageID.1228.

Although not clear, Defendant appears to claim that the court applied an intended

10
To the extent Defendant claims that Cogdell should have sought a § 5K1.1 motion
from the government based on his early “repayment of 84% of the ‘loss’ before sentencing,”
ECF No. 123 at PageID.1228, the repayment of funds is not a valid basis for the government to
bring a § 5K1.1 motion. Instead, such a motion is limited to “substantial assistance in the
investigation or prosecution of another person who has committed an offense.” Guideline §
5K1.1.
18

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loss amount, but Cogdell should have argued for an application of actual loss.

And, according to Defendant, his guideline offense level would have been much

lower had the court applied an actual loss amount. ECF No. 123 at PageID.1228.

Defendant is mistaken on several fronts.

First, some background—Defendant’s fraudulent conduct involved

Paycheck Protection Program (“PPP”) loans under the Coronavirus Aid, Relief,

and Economic Security Act. Defendant stipulated in his plea agreement to certain

facts, including that he and his wife conspired to obtain PPP funds by submitting

false and fraudulent loan applications and supporting documentation, while

concealing the fact that they submitted multiple PPP loan applications. Further, as

a “result of the scheme, [Defendant] and Erin Mazzei obtained approximately

$1,365,000.00 in PPP funds to which they were not entitled, which they used to

pay for personal expenses and an unallowable new business venture.” ECF No. 78

at PageID.270. Specifically, Defendant and his wife’s PPP fraud resulted in the

payment to them of: $92,500 from “Bank 1”; $562,500 from “Bank 2”; and

$710,332 from “Bank 3.” Id. at PageID. 271–275.

In determining the loss, the presentence investigation report

determined that Defendant fraudulently obtained a total of $1,365,332 in PPP

loans. ECF No. 99 at PageID.793, 798. Under guideline § 2B1.1, the report

applied a base offense level 7 and a 14-level increase based on the loss of

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$1,365,332.11 Id. at PageID.798. At sentencing, Cogdell did object to the total loss

amount,12 and the court determined that $1,365,332 was the loss amount that

applied to Defendant. ECF No. 115 at PageID.1117.

And so, Defendant’s argument is premised on a mistaken view—that

the court calculated intended loss, not actual loss, in determining total loss. In fact,

the loss was premised on the amount of fraudulently obtained funds from three

separate banks. That represents actual, not intended, loss. And the § 2255 Motion

does not claim that Cogdell could have presented evidence to offset the loss

amount, such as money returned before his offense was detected. See Guideline

§ 2B1.1, application note 3(D) (stating that loss shall be reduced by money

returned “to the victim before the offense was detected”).13 In short, Cogdell was

not deficient in failing to argue actual loss at sentencing.

iv. Failing to present “crucial” evidence

Defendant claims that Cogdell failed to present “crucial” evidence,

including that “banks were not fully knowledgeable of the guidelines of the PPP

11
The 14-level increase was based on a loss of between $500,000 and $1,500,000 under
§ 2B1.1(b)(1)(H).
12
Cogdell did argue that Defendant should not be held responsible for the entire loss
amount under § 2B1.1(b)(17)(A). The court overruled this objection at sentencing. ECF No.
115 at PageID.1101–1117.
13
United States v. Banks, 55 F.4th 246 (3d Cir. 2022), which held that the pre-2024
Guidelines requires a calculation based only on actual loss, is simply irrelevant. Even if Banks
applied in the Ninth Circuit, see United States v. Hackett, 123 F.4th 1005 (9th Cir. 2024), the
court used the calculation—actual loss—approved by Banks.
20

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program” and banks “were now being incentivized to turn in those that had

received PPP loans.” ECF No. 123 at PageID.1229. This argument fails—whether

the banks were “not fully knowledgeable” about the PPP program, or whether they

have been “incentivized” to report PPP fraud, is simply irrelevant to the issues

before the court. As a result, Cogdell was not deficient in failing to raise these

matters; and even if he were, there could be no prejudice.

v. Failing to argue improper venue

Defendant claims that Cogdell (and perhaps Gronna) was ineffective

for failing to challenge venue in the District of Hawaii. Id. at PageID.1231.

Because venue was proper in the District of Hawaii as to both counts 1 and 3 of the

Indictment, this claim necessarily fails.

A criminal defendant “has a constitutional right to be tried in a district

where the crime was committed.” United States v. Lukashov, 694 F.3d 1107, 1119

(9th Cir. 2012). And Federal Rule of Criminal Procedure 18 provides that

“[u]nless a statute or these rules permit otherwise, the government must prosecute

an offense in a district where the offense was committed.” Venue must be proper

as to each count in an indictment. United States v. Pace, 314 F.3d 344, 349 (9th

Cir. 2002).

To decide whether venue is proper the court “must initially identify

the conduct constituting the offense (the nature of the crime) and then discern the

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location of the commission of the criminal acts.” United States v. Rodriguez-

Moreno, 526 U.S. 275, 279 (1999). To determine the “nature of the crime,” the

court looks to the “essential conduct element[s]” of the offense. Id. at 280.

Unless otherwise provided by law, “any offense against the United

States begun in one district and completed in another, or committed in more than

one district, may be inquired of and prosecuted in any district in which such

offense was begun, continued, or completed.” 18 U.S.C. § 3237(a). And it is

“well settled that venue on a conspiracy charge is proper where . . . any overt act

committed in furtherance of the conspiracy occurred.” United States v. Gonzalez,

683 F.3d 1221, 1224 (9th Cir. 2012); see also United States v. Hui Hsiung, 778

F.3d 738, 746 (9th Cir. 2015).

Count 1 charged Defendant with conspiracy to commit wire fraud in

violation of 18 U.S.C. §§ 1343, 1349. 14 ECF No. 1 at PageID.6–16. Specifically,

that count charges that by email Defendant submitted a fraudulent application and

records to the Bank of Hawaii,15 which is a bank based and headquartered in

Hawaii, in support of a loan application seeking over $710,000 in PPP funds. Id. at

PageID.13. Given these facts, there was no factual or legal basis for counsel to

14
There is no specific venue statute covering wire fraud or conspiracy to commit wire
fraud.
15
The Indictment refers to “Bank 3” as “based” and “headquartered” in the State of
Hawaii,” and the presentence report specifically identified “Bank 3” as the Bank of Hawaii. See
ECF No. 1 at PageID.5, 13 and ECF No. 99 at PageID.792–793.
22

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have challenged venue as to count 1 in the District of Hawaii. See Pace, 314 F.3d

at 349) (stating that venue is established in a wire fraud case “in those locations

where the wire transmission at issue originated, passed through, or was

received”).

Count 3 charged Defendant with conspiracy to commit money

laundering, in violation of 18 U.S.C. §§ 1956(h) and 1957. For this violation, a

specific venue provision applies:

(i) Venue.

(1) Except as provided in paragraph (2), a prosecution for
an offense under this section or section 1957 may be
brought in—

(A) any district in which the financial or monetary
transaction is conducted; or

(B) any district where a prosecution for the underlying
specified unlawful activity could be brought, if the
defendant participated in the transfer of the proceeds of
the specified unlawful activity from that district to the
district where the financial or monetary transaction is
conducted.

(2) A prosecution for an attempt or conspiracy offense
under this section or section 1957 may be brought in the
district where venue would lie for the completed offense
under paragraph (1), or in any other district where an act
in furtherance of the attempt or conspiracy took place.

(3) For purposes of this section, a transfer of funds from
1 place to another, by wire or any other means, shall
constitute a single, continuing transaction. Any person
who conducts (as that term is defined in subsection
23

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(c)(2)) any portion of the transaction may be charged in
any district in which the transaction takes place.

18 U.S.C. § 1956(i)(1)–(3).

Here, among the financial transactions listed in count 3 was a

$175,000 “[w]ire transfer by ERIN MAZZEI from Bank 5 acct. no. x0096 to

T.G.E.S., an entity based in the District of Hawaii, for down payment on a Koio

Drive condo.” ECF No. 1 at PageID.19.16 Venue is thus proper in the District of

Hawaii as a “district in which the financial or monetary transaction is

conducted.” 17 Again, because there was no factual or legal basis for counsel to

challenge venue in the District of Hawaii, counsel was not deficient.

vi. Failure to argue a Brady violation

Defendant claims that Cogdell failed to argue that the government

violated its Brady obligation.18 Specifically, Defendant claims that the government

suppressed emails “from loan originators that explicitly stated that payroll

16
“T.G.E.S.” is Title Guaranty Escrow Services. See ECF No. 99 at PageID.794. It
makes sense that funds were transferred to a Hawaii title and escrow company because, as
alleged in the Indictment, the “Koio Drive condo” is located in Kapolei, Hawaii. See ECF No. 1
at PageID.21 (forfeiture allegation).
17
“[T]he term ‘conducts’ includes initiating, concluding, or participating in initiating, or
concluding a transaction . . . .” 18 U.S.C. § 1956(c)(2).
18
Defendant also claims that the prosecution engaged in other forms of prosecutorial
misconduct beyond a Brady violation. Those allegations are discussed separately in this Order.
24

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projections were acceptable for PPP loan applications.” ECF No. 123 at

PageID.1229.

A defendant may challenge a pre-plea Brady claim only to challenge

the voluntariness of a guilty plea. United States v. Sanchez, 50 F.3d 1448, 1453

(9th Cir. 1995).19 To prevail, Defendant must demonstrate that “there is a

reasonable probability that but for the failure to disclose the Brady material, the

defendant would have refused to plead and would have gone to trial.” Id. at 1454.

The test to determine whether a defendant would have gone to trial is an objective

one that centers on the likely persuasiveness of the withheld information. Id.

(quotation marks and citation omitted).

First, Defendant’s argument falls under its own weight. If Cogdell

was aware of the loan originator emails, then there was no Brady violation. See

Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006) (finding no Brady violation if the

defendant is aware of the essential facts that enable him to take advantage of the

19
In United States v. Ruiz, 536 U.S. 622, 633 (2002), the Supreme Court concluded that
“the Constitution does not require the Government to disclose material impeachment evidence
prior to entering a plea agreement with a criminal defendant.” Ruiz creates some tension with
Sanchez. See, e.g., Parker v. County of Riverside, 78 F.4th 1109, 1117–18 (9th Cir. 2023)
(reiterating that “as I have previously noted, [the Ninth Circuit’s] holding that Brady applies
during plea bargaining conflicts with the Supreme Court’s decision in [Ruiz],” and stating that
“we should revisit this issue with the benefit of Ruiz. . . in an appropriate case”) (R. Nelson, J.
concurring) (citing United States v. Harshman, 2021 WL 3929926, at *2–4 (9th Cir. Sep. 2,
2021) (R. Nelson, J., concurring)). Regardless, this Order applies Sanchez as binding precedent
in the Ninth Circuit, under which Defendant’s claim still fails (and so this is not an “appropriate
case” to revisit the tension between Sanchez and Ruiz).
25

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exculpatory evidence). 20 And if Cogdell was unaware of the emails, then he could

not have been ineffective in failing to argue a Brady violation. Second, in any

event, the alleged emails do not constitute Brady material. Defendant’s conviction

was not based on inaccurate payroll projections—instead, Defendant admitted

under oath at his change of plea hearing to multiple fraudulent statements unrelated

to payroll projections that he made in relation to the PPP loans. See ECF No. 114

at PageID.1059–1075. Stated differently, the content of the alleged emails stating

that “payroll projections were acceptable for PPP loan applications,” was not

material to Defendant’s guilt or punishment. Brady, 373 U.S. at 87. And third,

even if the emails were Brady material, and even if Cogdell should have argued

they were being withheld, Defendant has not shown a reasonable probability that

but for the failure to disclose the Brady material, he would have refused to enter a

guilty plea and would have gone to trial instead.

\\\

20
Defendant appears to have been aware of this “Brady” information as early as March
30, 2020. See ECF No. 123 at PageID.1275–1278 (setting forth an email chain from March 29
and 30, 2020, between Christopher Mazzei and South End Capital containing an alleged
exculpatory email) and PageID.1241 (email from Christopher Mazzei to his attorney stating th at
several loan originators informed him that he could use payroll projections to apply for a PPP
loan).
26

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vii. Failing to point out misstatements made by the prosecutor
during sentencing

Defendant further claims that Cogdell did not argue or correct various

alleged misstatements made by the AUSA during sentencing. ECF No. 123 at

PageID.1216. Specifically, he alleges that the AUSA falsely stated that:

the Kapolei condo was purchased solely for a VRBO
vacation home; the claim that the PPP funds were used to
pay off the Arroyo Grande, California home mortgage;
the claim that [Defendant] purchased a billboard to get
the attention of Dawyne “The Rock” Johnson; and the
mischaracterization of the Ohana Project as a “vanity
television project.”21

Id. at PageID.1229. These arguments fail.

During the change of plea hearing, the government provided the

following proffer as to how Defendant and his wife spent the fraudulently obtained

PPP funds:

And upon receiving the aforementioned PPP loan funds,
Christopher Mazzei and Erin Mazzei moved the funds
into their bank accounts and began spending the funds on
unallowable personal and other expenses. Among the
notable personal expenses made by Christopher Mazzei
and Erin Mazzei were a $39,445 payment for the
mortgage on their home in Arroyo Grande, California;
$175,500 for the purchase of a home in Kapolei, Hawaii;
and $125,877 for the purchase of two vehicles.

Christopher Mazzei and Erin Mazzei also committed

21
Elsewhere in the § 2255 Motion, Defendant claims that Cogdell failed to present
“legitimate business evidence” of the Ohana Project. ECF No. 123 at PageID.1216.
27

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$793,000 of PPP funds to a third party production
company to develop various film and television projects.
Of this amount, they spent approximately $164,796 to
film a promotional trailer for a television project entitled
Ohana that they planned to produce in the State of
Hawaii.

ECF No. 114 at PageID.1066. When asked by the court if the AUSA’s proffer was

accurate, Defendant stated, “Yes, Your Honor.” Id. at PageID.1067. The court

later asked: “And then [the AUSA] went through some of the spending of the

funds on unallowable expenses. Do you agree to what he said on that as well?”

Defendant answered, “Yes.” Id. at PageID. 1074. Defendant thus admitted under

oath that he and his wife used $39,445 of PPP proceeds towards the mortgage on

their home in Arroyo Grande, California. This statement “carr[ies] a strong

presumption of veracity in subsequent proceedings attacking the plea.” Ross, 511

F.3d at 1236.22

Further, Defendant admitted that he used $175,500 of PPP funds for

the purchase of a home (condo) in Kapolei, Hawaii. Against this backdrop, at

sentencing the AUSA stated that Defendant and his wife put the Kapolei condo “on

a vacation rental service called VRBO, and they pulled in $41,000 from renting

that condominium in Kapolei, Hawaii.” ECF No. 115 at PageID.1122. Contrary

22
To the extent Defendant claims that the AUSA incorrectly stated that PPP funds were
used to “pay off” the mortgage as opposed to simply paying down the mortgage balance, any
such misstatement would be immaterial. And Cogdell was certainly not deficient in failing to
raise such an inconsequential discrepancy.

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to Defendant’s claim, the AUSA never stated that the condo was used “solely” as a

vacation rental. ECF No. 123 at PageID.1229. Instead, he set forth facts which

Defendant does not challenge—that the condo generated $41,000 through VRBO

rentals.23 And at sentencing, Cogdell corrected any misimpression that could have

been left by the AUSA—he told the court that “the VRBO rental didn’t begin until

after the fraud was discovered.” ECF No. 115 at PageID.1139. The court accepted

that proffer as accurate. Id. In short, Cogdell corrected any possible false

impression left by the AUSA during sentencing.

As set forth above, Defendant also admitted that he and his wife spent

$793,000 on a third-party production company. In his remarks to the court during

sentencing, the AUSA stated that Defendant and his wife “set aside $793,000 for a

Vanity television project called Ohana, spending $164,000 to film a promotional

trailer.” Id. at PageID.1122. Defendant appears to claim that Cogdell should have

corrected the statement that these funds were spent on a “vanity” television project.

But given that Defendant admitted that he used fraudulently obtained PPP funds to

support the Ohana project, it was quite reasonable for Cogdell to avoid a

23
The AUSA made this comment in response to Erin Mazzei’s statement that the condo
was purchased as a “home writing and production office as we started making connections in the
Hawaii film industry.” ECF No. 115 at PageID.1122. In short, the AUSA was pointing out that
the condo was used—at least in part—as a vacation rental at some point in time.
29

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discussion of the project, and in particular not to nitpick as to whether it was a

“vanity” project. 24

During sentencing, the AUSA also stated that Defendant’s “support

letters include one letter from a production partner that explains that the Mazzeis

hoped to attract the attention and support of a film actor with ties to Hawaii,

Dwayne the Rock Johnson, and that was how they spent the PPP loan money.” Id.

The AUSA then pointed out that the purpose of the PPP was not to provide funds

for new business ventures. Id. at PageID.1123. The reference letter, written by an

individual that worked with Defendant on the Ohana project, states that Defendant

and his wife “sold personal items to finance a billboard near Dwayne Johnson’s

Los Angeles residence, hoping to gain his support.” ECF No. 103-1 at

PageID.865; see also ECF No. 104-4 at PageID.918 (showing a photograph of the

billboard, which states in part, “Let’s Keep The Legacy of Filmmaking in Hawaiʻi

Strong. OhanaTheSeries.com”). And in his § 2255 Motion, Defendant claims the

billboard was financed by a family friend. ECF No. 123 at PageID.1252. But

regardless of the actual source of funds, Defendant claims that Cogdell should have

made clear that PPP funds were not used to purchase the billboard advertisement.

24
To be clear, the court believed at sentencing, and believes now, that Defendant and his
wife put funds into the Ohana project hoping that it would succeed and provide them with
income. The court was never of the view that the Ohana project itself was illegitimate or illegal.
But there is no dispute that funds used on the Ohana project were fraudulently obtained. And
whether it was a “vanity” project has always been irrelevant to the court.
30

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A defense counsel need not address every issue raised by a Defendant

during sentencing. Strategic choices must be made, and those are “virtually

unchallengeable.” Strickland, 466 U.S. at 690. Here, Defendant admitted under

oath that he used a large part of the fraudulently obtained PPP funds to support the

Ohana project. It would make little sense for Cogdell to provide an accounting as

to how much of the Ohana project was funded by illegal proceeds versus legal

ones. What was material to the court was that Defendant obtained PPP funds

through fraud, and then spent those proceeds, in part, on a television project—what

specific funds went to a particular part of that project is simply not relevant.

Instead, it was well within the professional range of reasonableness for Cogdell to

focus at sentencing—as he did—on more significant mitigating factors, such as

Defendant’s minor children and his other legitimate business. See ECF No. 115 at

PageID.1129–1130. Given these facts, there was no reason for Cogdell to

highlight Defendant’s involvement in the Ohana project. And, in any event, there

was certainly no prejudice in failing to do so. That is, even assuming that Cogdell

should have raised these various arguments at sentencing, Defendant has failed to

demonstrate that there is a reasonable probability that, but for counsel’s

unprofessional errors, he would have received a lesser sentence.

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viii. Failing to question the court’s comments regarding
restitution and forfeiture at sentencing

Defendant argues that Cogdell was ineffective at the sentencing

hearing when he “did not question” the court’s comments about how “forfeiture

would be applied towards restitution.” ECF No. 123 at PageID.1216. Specifically,

Defendant argues that the court left him with the impression that he would not

have to pay both restitution and forfeiture, and that Cogdell was ineffective in not

correcting this impression. Id. at PageID.1230. But even assuming the court left

this impression with Defendant, the plea agreement outlines that Defendant would

be required to pay full restitution and forfeiture. See ECF No. 78 at PageID.267–

268, 284–289. The court highlighted this fact during the change of plea hearing,

informing Defendant: “So, in addition to forfeiture, there would be a restitution

order.” ECF No. 114 at PageID.1035. Further, there is no double recovery if both

restitution and forfeiture are ordered. “The two payments represent different types

of funds: punitive and compensatory. They are different in nature, kind, and

purpose.” United States v. Davis, 706 F.3d 1081, 1084 (9th Cir. 2013). Given the

requirement in the plea agreement for Defendant to pay both forfeiture and

restitution, there was no reason for Cogdell to correct any misimpression that the

court may have left with Defendant himself at the time of sentencing. Further,

even if Cogdell should have explained the restitution and forfeiture obligation to

Case 1:22-cr-00045-JMS Document 147 Filed 05/01/26 Page 33 of 42 PageID.1703

Defendant more clearly during sentencing, the failure to do so could not have

prejudiced Defendant. 25

ix. Failing to withdraw as Defendant’s counsel

Defendant claims that Cogdell “would not remove himself after

concerns were raised of his ability to defend after Change of Plea hearing.” ECF

No. 123 at PageID.1216.26 Later, Defendant states that “Cogdell had a duty to

provide adequate representation or withdraw and he did neither.” Id. at

PageID.1228. Defendant provides no support for this claim, and Cogdell states

that no such “demand” was made. ECF No. 142–2 at PageID.1527. Regardless,

even if Defendant raised concerns to Cogdell, he does not allege that he requested

Cogdell to file a motion to withdraw. Instead of being a stand-alone claim of

ineffective assistance of counsel, this allegation appears to argue that Cogdell was

ineffective in representing Defendant, and thus he was ineffective in failing to file

a motion to withdraw. This reasoning assumes—incorrectly—that Cogdell was

25
Defendant also claims that the Department of Justice “violated their forfeiture policy,
stating a 90-day window for charges to be filed after assets are seized, or the property is to be
returned. [Defendant] claims that it took an entire year for the charges to be filed.” ECF No.
123 at PageID.1230. Although unclear, Defendant may be referencing a 90-day period for the
government to file a complaint if an individual makes a claim to seized property under 18 U.S.C.
§ 983(a)(3)(A). Here, Defendant does not provide evidence (or even allege) that he filed a claim,
and thus the 90-day period is inapplicable. See Snitko v. United States, 90 F.4th 1250, 1258 n.5
(9th Cir. 2024) (explaining application of § 983(a)(3)(A)).
26
At the change of plea hearing, Defendant stated that he was satisfied with Cogdell’s
representation of him. ECF No. 114 at PageID.1025.
33

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ineffective in representing Defendant during the course of his change of plea.

Further, Defendant has shown no prejudice based on Cogdell’s continued

representation of him through sentencing.

x. Failing to object to a plea agreement that prohibited any
downward departure

Defendant states that the AUSA “tendered a plea deal that prohibited

ALL downward departures,” and that Cogdell failed to object to this “misconduct.”

ECF No. 123 at PageID.1217; see also id. at PageID.1229 (claiming “prosecutorial

misconduct based on a plea agreement provision prohibiting “any downward
---
departure”). Defendant is mistaken as to the nature of the plea agreement.

Under the plea agreement, “the parties agree that [Defendant] will not

seek a variance or departure from the advisory guideline range as determined by

the Court at the time of sentencing and therefore will argue for a sentence within

the calculated advisory guideline range . . . .” ECF No. 78 at PageID.278. The

plea agreement also made clear that this provision “is not binding on the Court.”

Id. at PageID.279. In other words, Defendant’s claim that the plea agreement

prohibited any downward variance or departure is simply incorrect. The court had

discretion to sentence below the guideline range, within the guideline range, or

above the guideline range.

Further, Defendant provides no argument or evidence as to why the

inclusion of this provision in the plea agreement constituted “prosecutorial
34

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misconduct.” Defendant was aware of this provision, discussed it with Cogdell,

and agreed to it. ECF No. 114 at PageID.1038; ECF No. 142-2 at PageID.1526.

Because there was no prosecutorial misconduct, Cogdell could not have been

deficient in failing to raise the issue with the court.

xi. Failing to object when a DOJ investigator posed as a court
official

Defendant claims that “a DOJ agent called character witness PJ

Haarmsa the day before sentencing posing as a court official to ‘verify’ his

character letter, but in reality, it was a DOJ investigator, which undermines the

integrity of the investigation.” ECF No. 123 at PageID.1229. In support of this

claim Defendant attaches a text communication in which Haarmsa states that “the

court just called me asking if my letter was legit.” Id. at PageID.1280. When

Haarmsa was asked for the phone number of the person who called, he provided a

number starting with a 310 area code, and then wrote “Lynn the agent.” Id. Given

this communication, it appears that Haarmsa may have confused the difference

between a court official and law enforcement. Regardless, Haarmsa identified the

caller as an “agent,” a person clearly not attempting to falsely claim affiliation with

the court.

Further, even if these events happened, Defendant has failed to show

that he was prejudiced by this in any way. Had Cogdell made the court aware of

this issue, it would not have been relevant to the court’s consideration of the
35

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relevant 18 U.S.C. § 3553(a) factors or the ultimate sentence. Any such failure by

Cogdell did not constitute ineffective assistance of counsel.

xii. Failure to object when the AUSA threatened to prosecute
Defendant’s mother

Defendant next claims the AUSA “used a tactic of threatening charges

against [his] mother if [he] didn’t sign the plea deal.” Id. at PageID.1229. He

provides no evidence that Cogdell relayed such a threat to him, or even that

Cogdell was aware of such a threat. More importantly, Defendant confirmed under

oath that nobody threatened him or anyone else or forced him in any way to enter a

plea of guilty. ECF No. 114 at PageID.1026. Instead, he stated that he was

pleading guilty of his own free will because he was guilty. Id. Defendant also

confirmed under oath that, other than the written plea agreement, there was no

other agreement between Defendant and the United States (such as a non-

prosecution agreement as to Defendant’s mother). Id. at PageID.1039. In other

words, although Defendant now claims that threats were made, he stated otherwise

while under oath. See Blackledge, 431 U.S. at 73–74 (“[T]he representations of the

defendant [at a plea hearing] . . . constitute a formidable barrier in any subsequent

collateral proceedings. Solemn declarations in open court carry a strong

presumption of verity.”). And Defendant has not presented a compelling

explanation for the contradiction or demonstrated extraordinary circumstances to

permit this claim to go forward. See Muth, 676 F.3d at 821–22 (“[A] motion that
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can succeed only if the defendant committed perjury at the plea proceedings may

be rejected out of hand unless the defendant has a compelling explanation for the

contradiction.”) (quoting United States v. Peterson, 414 F3d 825, 827 (7th Cir.

2005)).

* * *

Defendant has failed to show that Cogdell provided ineffective

assistance of counsel. The court now addresses the remaining claims in

Defendant’s § 2255 Motion.

B. The Remainder of Defendant’s Claims

1. The Plea Agreement Waiver Is Valid

Before discussing the specific claims that remain, the court must

determine whether Defendant’s plea agreement waiver of his § 2255 rights was

knowing and voluntary. Rodriguez, 49 F.4th at 1212. It was both.

The language of the plea agreement itself is clear: Defendant waived

his right “to challenge his conviction or sentence or the manner in which it was

determined in any collateral attack, including, but not limited to, a motion brought

under Title 28, United States Code, Section 2255.” ECF No. 78 at PageID.281.

This broad waiver contained one exception applicable here: a claim based on

ineffective assistance of counsel. Id. During Defendant’s change of plea hearing,

the court explained the waiver in detail, and he confirmed that he understood both

Case 1:22-cr-00045-JMS Document 147 Filed 05/01/26 Page 38 of 42 PageID.1708

the nature and scope of the waiver. ECF No. 114 at PageID.1042–1044. Further,

after a full colloquy, Defendant understood the terms of the plea agreement and its

consequences. Id. at PageID.1037–1038. And, other than the terms of the plea

agreement itself, Defendant was not “induced by promises or threats” to enter the

agreement. Id. at PageID.1025. 27 In short, Defendant’s waiver of the right to bring

a collateral attack, other than based on a claim of ineffective assistance of counsel,

was knowing and voluntary.

2. Barred Claims Not Premised on Ineffective Assistance of Counsel

Applying the well-established principles set forth above, the following

claims are barred: (1) by the collateral attack waiver in the plea agreement (“plea

agreement waiver”); (2) because Defendant entered a plea of guilty (“guilty plea

27
Specifically, during the August 28, 2024 change of plea hearing, the court asked
Defendant whether “anyone made any promise or assurance to you of any kind to get you to
enter a plea of guilty, other than what is in the plea agreement itself?” He answered “No.” The
court then asked Defendant, “Has anyone threatened you or anyone else, or forced you in any
way to plead guilty?” Again, Defendant answered “No.” And finally, the court asked if
Defendant was “pleading guilty of your own free will because you are guilty?” Defendant
responded: “Yes.” ECF No. 114 at PageID.1025–1026. And to the extent Defendant claims
that the plea was otherwise “coercive,” ECF No. 123 at PageID.1229, these under-oath
statements at the change of plea hearing fully undermine this claim.

Case 1:22-cr-00045-JMS Document 147 Filed 05/01/26 Page 39 of 42 PageID.1709

limitation”); (3) because of procedural default; 28 and/or (4) because the claims are

not cognizable under § 2255. Many of the claims are barred for multiple reasons.29

(1) Prosecutorial misconduct claims relating to events that predate

Defendant’s plea of guilty: (a) the suppression of emails from loan originators; (b)

a threat to prosecute Defendant’s mother; and (c) the AUSA “tendered a plea deal

that prohibited ALL downward departures,” ECF No. 123 at PageID.1217—these

claims are barred by the plea agreement waiver, the guilty plea limitation, and/or

procedural default.30

(2) Prosecutorial misconduct claims relating to events that postdate

Defendant’s plea of guilty: (a) a DOJ investigator posing as a court official and

calling a character witness to verify the witness’s letter; (b) the AUSA used

“forfeited funds to bid at foreclosure auction for personal gain (now under FBI

investigation for these misconducts);31 and (c) the AUSA made false statements at

28
For each claim subject to procedural default, Defendant has failed to show cause and
actual prejudice. Likewise, he has not demonstrated actual innocence.
29
Many of these claims are also meritless, for the same reasons set forth in the
discussion of ineffective assistance of counsel. Further, many of these claims are conclusory or
simply incorrect. This section of the Order, however, need not address the merits of many of
Defendant’s barred claims.
30
A valid § 2255 waiver covers pre-plea claims of prosecutorial misconduct. See United
States v. Lee, 2017 WL 411205, at *2, *4 (D. Haw. Jan. 30, 2017); United States v. Demasi,
2025 WL 2051601, at *3 (6th Cir. July 22, 2025); United States v. Davis, 2016 WL 6471012, at
*12 (D. Idaho Nov. 1, 2016); United States v. Porter, 2022 WL 17852017, at *8–9 (W.D. Penn.
Dec. 22, 2022).

(continued . . )
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the sentencing hearing,” id.—these claims are barred by the plea agreement waiver

and/or procedural default.

(3) Claims of error in relation to the imposition of restitution and

forfeiture: Defendant suggests that the court erred in ordering both restitution and

forfeiture, id. at PageID.1230—a § 2255 motion cannot be used as a vehicle to

collaterally attack a restitution or forfeiture order, and, in any event, would be

barred by the plea agreement waiver and/or procedural default.

(4) Claim that Defendant’s sentence was too harsh: Defendant claims

that although the court recognized his early restitution payments, the court

nonetheless “felt the need to sentence [Defendant] harshly,” and the Trump

administration has stated that most PPP cases should “be handled civilly, not

criminally” id. at PageID.1231—this claim is barred by the plea agreement waiver

and/or procedural default.

* * *

In sum, Defendant has failed to show that he is entitled to any relief,

whether viewing his claims individually or in total. Further, no evidentiary hearing

31
Defendant has presented no evidence that the AUSA was involved in bidding at a
foreclosure auction on Defendant’s previous residence. Instead, he relies on a letter from Jeremy
Engle addressed to President Trump containing double hearsay: “the bidder notified me that
government agents were present” and bidding at the auction. ECF No. 123 at PageID.1273.
Regardless, Defendant has not alleged that the government was involved in the wrongful
foreclosure of his house, so he could show no prejudice.
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is necessary as the issues raised can be conclusively decided based on the evidence

in the record.

V. CERTIFICATE OF APPEALABILITY

In denying the § 2255 Motion, the court must also address whether

Defendant should be granted a certificate of appealability (“COA”). See R. 11(a)

Governing § 2255 Proceedings in the U.S. Dist. Cts. (providing that “[t]he district

court must issue or deny a certificate of appealability when it enters a final order

adverse to the applicant”). A COA may issue only if the petitioner “has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2).

“The standard for a certificate of appealability is lenient.” Hayward v.

Marshall, 603 F.3d 546, 553 (9th Cir. 2010) (en banc), overruled on other grounds

by Swarthout v. Cooke, 562 U.S. 216 (2011). The petitioner is required to

demonstrate only “that reasonable jurists could debate the district court’s

resolution or that the issues are adequate to deserve encouragement to proceed

further.” Id. (internal quotation marks and citation omitted); see also Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (holding that a certificate of appealability

should issue only if a prisoner shows, among other things, “that jurists of reason

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

ruling”). The standard “requires something more than the absence of frivolity, but

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something less than a merits determination.” Hayward, 603 F.3d at 553 (citation

and internal quotation marks omitted).

The court carefully reviewed Defendant’s assertions and gave him

every benefit by liberally construing them. Based on the above analysis and

considering all the allegations in the § 2255 Motion, the court finds that reasonable

jurists could not find the court’s rulings debatable. Accordingly, a COA is

DENIED.

VI. CONCLUSION

For the foregoing reasons, the court DENIES Defendant’s § 2255

Motion and DENIES a Certificate of Appealability. The Clerk of Court is directed

to close the civil case file, Civ. No. 26-00025 JMS-KJM.

IT IS SO ORDERED.

DATED: Honolulu, Hawaii, May 1, 2026.

/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge

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