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Home Source documents Government’s Response in Opposition to Defendant Christopher A. Mazzei’s Motion Under 28 U.S.C. § 2255 — Case No. CR22-00045 JMS-01 (Dkt. 142, D. Haw.)

Government’s Response in Opposition to Defendant Christopher A. Mazzei’s Motion Under 28 U.S.C. § 2255 — Case No. CR22-00045 JMS-01 (Dkt. 142, D. Haw.)

Summary

The U.S. Attorney’s Office for the District of Hawaii filed this 44-page response on March 20, 2026, opposing Christopher A. Mazzei’s motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. It recounts that a grand jury indicted Christopher and Erin V. Mazzei on May 26, 2022 on four counts, that both pleaded guilty on August 28, 2024 to conspiracy to commit wire fraud and conspiracy to launder money under plea agreements, and that on January 9, 2025 Christopher Mazzei was sentenced to 36 months of imprisonment. The government says the motion makes approximately 18 claims, most of them waived by the plea agreement, which preserved only ineffective-assistance claims. It argues that his attorneys performed competently, and that restitution and forfeiture orders cannot be challenged under Section 2255. It asks the Court to deny the motion.

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Case 1:22-cr-00045-JMS      Document 142   Filed 03/20/26   Page 1 of 44 PageID.1444




 KENNETH M. SORENSON
 United States Attorney
 District of Hawaii

 GREGG PARIS YATES #8225
 Assistant U.S. Attorney
 District of Hawaii
 Room 6-100, PJKK Federal Building
 300 Ala Moana Boulevard
 Honolulu, Hawaii 96850
 Telephone: (808) 541-2850
 E-Mail: Gregg.Yates@usdoj.gov

 Attorneys for Plaintiff
 United States of America

                 IN THE UNITED STATES DISTRICT COURT

                            FOR THE DISTRICT OF HAWAII

 UNITED STATES OF AMERICA, )               CASE NO. CR22-00045 JMS-01
                               )           CASE NO. CR26-00025-JMS-KJM
                   Plaintiff,  )
                               )           GOVERNMENT’S RESPONSE
           vs.                 )           IN OPPOSITION TO DEFENDANT
                               )           CHRISTOPHER A. MAZZEI’S
 CHRISTOPHER A. MAZZEI, (1) )              MOTION UNDER 28 U.S.C. § 2255 TO
                               )           VACATE, SET ASIDE, OR CORRECT
                   Defendant. )            SENTENCE BY A PERSON
                               )           FEDERAL CUSTODY; EXHIBITS A-D
 _____________________________ )           CERTIFICATE OF SERVICE


           GOVERNMENT’S RESPONSE IN OPPOSITION TO
          DEFENDANT CHRISTOPHER A. MAZZEI’S MOTION
          UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR
       CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY
Case 1:22-cr-00045-JMS                 Document 142            Filed 03/20/26           Page 2 of 44 PageID.1445




                                            TABLE OF CONTENTS

                                                                                                                 Page(s)

 INTRODUCTION .....................................................................................................1

 BACKGROUND .......................................................................................................2

    I.     Procedural History ...........................................................................................2

    II. Christopher Mazzei’s Representation..............................................................3

 ARGUMENT .............................................................................................................4

    I.     Legal Standard .................................................................................................4

    II. The Defendant Knowingly and Voluntarily Waived the Right to File a

           Section 2255 Motion to Collaterally Attack His Conviction and Sentence,

           Other Than Upon the Ground of Ineffective Assistance of Counsel ..............7

    III. The Defendant Did Not Receive Ineffective Assistance of Counsel ............11

         A. The Record Does Not Support the Motion’s Claim of Ineffective

              Assistance From Attorney Richard Gronna ...............................................12

         B. Attorney Cogdell Reasonably Did Not Raise Issues to the Court’s

              Attention Pertaining to Discovery Violations or the Terms of the Plea

              Agreement in Light of the Defendant’s Decision to Plead Guilty .............13

         C. Attorney Cogdell Provided Reasonable and Competent Legal

              Assistance at the Defendant’s Sentencing .................................................20
Case 1:22-cr-00045-JMS                  Document 142                    Filed 03/20/26            Page 3 of 44 PageID.1446




          1. Attorney Cogdell Relayed the Defendant’s Request to Cooperate to the

                Government Several Times; The Government Did Not Accept ................... 20

          2. Attorney Cogdell Reasonably Refrained from Challenging the Court’s

                Correct Sentencing Calculation Based Upon Actual Loss ................................ 21

          3. No Prejudice Resulted from Attorney Cogdell’s Decision Not to Object

                to the Factual Record at Sentencing ..................................................................................... 24

          4. No Prejudice Resulted From Attorney Cogdell’s Failure to Raise Other

                Arguments Regarding Government Conduct At or After Sentencing ...... 28

       D. The Motion’s Remaining Claims Pertaining to Attorney Cogdell Fail to

             Demonstrate Any Prejudice .......................................................................31

    IV. Most of the Motion’s Grounds are

          Procedurally Defaulted [Grounds II, III, IV].................................................33

    V. Defendant’s Remaining Grounds are Not Cognizable Under

          Section 2255 [Ground III] .............................................................................35

 CONCLUSION ........................................................................................................37




                                                                   ii
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                                      TABLE OF AUTHORITIES

 Cases                                                                                                   Page(s)

 Blackledge v. Allison,
    431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) ....................................... 11
 Boag v. Raines,
   769 F.2d 1341 (9th Cir. 1985) ......................................................................... 16
 Boehme v. Maxwell,
   423 F.2d 1056 (9th Cir. 1970) ......................................................................... 31
 Bousley v. United States,
   523 U.S. 614 (1998) ......................................................................................... 35
 Brady v. United States,
   397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) ..................................... 14
 Coleman v. Thompson,
   501 U.S. 722 (1991) ......................................................................................... 35
 Cooper v. Fitzharris,
   551 F.2d 1162, 1166 (9th Cir. 1977) ............................................................... 16
 Cunningham v. Wong,
   704 F.3d 1143 (9th Cir. 2013) .................................................................... 15-16
 Dodd v. United States,
   321 F.2d 240 (9th Cir. 1963) ........................................................................... 34
 Davis v. United States,
   417 U.S. 333 (1974) ........................................................................................... 5
 Garcia-Santos v. United States,
   273 F.3d 506 (2d Cir. 2001) ............................................................................ 35
 Hammond v. United States,
   408 F.2d 481 (9th Cir. 1969) ...................................................................... 34-35
 Ivy v. Pontesso,
    328 F.3d 1057 (9th Cir. 2003) ........................................................................ 4-5

                                                         iii
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 Cases                                                                                                  Page(s)

 Lorentsen v. Hood,
   223 F.3d 950, 953 (9th Cir. 2000) .................................................................. 4-5
 Mahrt v. Beard,
   849 F.3d 1164 (9th Cir. 2017) ......................................................................... 14
 Massaro v. United States,
   538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed. 2d 714 (2003) ................................ 35
 Strickland v. Washington,
    466 U.S. 668 (1984) ......................................................................... 6, 12, 20, 33
 Tollett v. Henderson,
   411 U.S. 258 (1973) ......................................................................................... 14
 United States v. Abarca,
   985 F.2d 1012 (9th Cir. 1993) ........................................................................... 8
 United States v. Anglin,
   215 F.3d 1064 (9th Cir. 2000) ........................................................................... 8
 United States v. Banks
     55 F.4th 246 (3d Cir. 2022) ........................................................................ 23-24
 United States v. Davis,
   706 F.3d 1081 (9th Cir. 2013) ......................................................................... 18
 United States v. Finze,
   428 Fed. Appx. 672 (9th Cir. 2011) ................................................................. 36
 United States v. Freitekh,
   114 F.4th 292 (4th Cir. 2024) .......................................................................... 23
 United States v. Hackett,
   123 F.4th 1005 (9th Cir. 2024) ........................................................................ 23
 United States v. Jackson,
   21 F.4th 1205 (9th Cir 2022) ............................................................................. 8
 United States v. Leonti,
   326 F.3d 1111 (9th Cir. 2003) ........................................................................... 7
                                                        iv
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 Cases                                                                                                       Page(s)

 United States v. Marchese,
   341 F.2d 782 (9th Cir. 1965) ........................................................................... 34
 United States v. Newman,
   659 F.3d 1235 (9th Cir. 2011) ......................................................................... 18
 United States v. Pacheco-Navarette,
   432 F.3d 967 (9th Cir. 2005) ........................................................................... 17
 United States v. Quan,
   789 F.2d 711 (9th Cir. 1986) ....................................................................... 7, 12
 United States v. Rodriguez,
   49 F.4th 1205 (9th Cir. 2022) ............................................................................ 8
 United States v. Speelman,
   431 F.3d 1226 (9th Cir. 2005) ........................................................................ 8-9
 United States v. Thiele,
   314 F.3d 399 (9th Cir. 2002) ........................................................................... 36
 United States v. Timmreck,
   441 U.S. 780 (1979) ......................................................................................... 36
 United States v. Transfiguracion,
   442 F.3d 1222, 1228 (9th Cir. 2006) ................................................................. 8
 United States v. Wilcox,
   640 F.2d 970 (9th Cir. 1981) ............................................................................. 5

 Statutes and Rules                                                                                          Page(s)
 18 U.S.C. § 982 ............................................................................................... 26, 27
 18 U.S.C. § 1349 .................................................................................................... 2
 18 U.S.C. § 1956 .................................................................................................... 2
 18 U.S.C. § 3553 ............................................................................................ 28, 29
 21 U.S.C. § 853 .................................................................................................... 30
 28 U.S.C. § 2255 ........................................................................................... passim
                                                           v
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 Statutes and Rules                                                                                         Page(s)
 U.S.S.G. § 2B1.1 ................................................................................ 21, 22, 23, 24
 U.S.S.G. § 5K1.1 .................................................................................................. 20
 Fed. R. Crim. P. 11 ............................................................................................... 17




                                                          vi
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                                  INTRODUCTION

       Defendant Christopher Mazzei moves pursuant to Title 28, United States

 Code, Section 2255 for an order to vacate, set aside, or correct his sentence

 (Motion). The Motion makes approximately 18 claims that fall into four

 categories: (I) ineffective assistance of counsel; (II) misconduct and Brady

 violations committed by the prosecution; (III) forfeiture and restitution issues; and

 (IV) additional constitutional issues.

       The government respectfully submits its brief in opposition to the Motion.

 First, the defendant waived his right to challenge his conviction or sentence in a

 Section 2255 motion when he signed a Memorandum of Plea Agreement (MOPA),

 and pled guilty to two counts of the Indictment. The waiver in the MOPA

 encompasses all legally waivable claims and permits only claims based upon

 ineffective assistance of counsel. The defendant’s admissions under oath in his

 plea colloquy also foreclose many of the grounds of his Motion.

       The Motion’s ineffective assistance of counsel ground itself comprises 12

 factual allegations. Motion 4-5, 16-18. These allegations fail to show that his

 counsel’s performance was incompetent or prejudiced him.

       Finally, many of the grounds of the Motion have been procedurally

 defaulted, or are not cognizable pursuant to 28 U.S.C. § 2255.
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                                  BACKGROUND

 I.    Procedural History

       On May 26, 2022, a Federal grand jury returned a four-count indictment

 against Christopher A. Mazzei and Erin V. Mazzei, charging them with conspiracy

 to commit wire fraud [Count 1], wire fraud [Count 2], conspiracy to launder money

 [Count 3], and money laundering [Count 4]. ECF No. 1.

       On August 28, 2024, both Christopher and Erin Mazzei entered pleas of

 guilty to Counts 1 and 3 of the Indictment pursuant to plea agreements. Count 1

 charged them with conspiracy to commit wire fraud in violation of Title 18, United

 States Code, Section 1349; Count 3 charged them with conspiracy to launder

 money, in violation of Title 18, United States Code, Section 1956(h). ECF Nos.

 77-79. Each plea agreement contained a waiver of the defendant’s right to appeal

 the conviction and sentence, except that each defendant retained the “right to

 appeal the portion of [the] sentence greater than specified in [the] guideline range

 and the manner in which that portion was determined and to challenge that portion

 of his sentence” in a motion pursuant to Title 28, United States Code, Section

 2255. MOPA ¶ 13(b), ECF No. 78. The Mazzeis also each waived the right to

 challenge his/her conviction or sentence in a Section 2255 motion on all grounds

 other than ineffective assistance of counsel. Id. ¶ 13(a), ECF No. 78.

                                           2
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       On January 9, 2025, the Court sentenced Christopher Mazzei to a term of

 imprisonment of 36 months, followed by a term of supervised release of 3 years, as

 well as restitution of $1,418,174.70. ECF No. 106. The Court sentenced Erin

 Mazzei to a term of imprisonment of 27 months, followed by a term of supervised

 release of 3 years, as well as restitution of $1,418,174.70. Id. The Court also

 entered an order of forfeiture against both defendants, which included an order for

 certain specific property, including a home in Kapolei, Hawaii and their home in

 Arroyo Grande, California, both of which they paid for in part with fraud proceeds.

 ECF No. 105. Neither defendant appealed.

       On January 23, 2026, Christopher and Erin Mazzei each filed a Motion

 Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in

 Federal Custody. ECF Nos. 123, 124.

 II.   Christopher Mazzei’s Representation

       In pre-indictment communications with the United States, Christopher

 Mazzei had retained a criminal defense attorney, Amanda Touchton, Esq, to

 represent him. On June 13, 2022, shortly after indictment, Christopher Mazzei

 accepted Court-appointed representation from Richard Gronna. ECF No. 6.




                                          3
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         On September 19, 2022, Attorney Gronna filed a motion to withdraw as

 counsel. ECF No. 21. The Court granted the motion and appointed Jason Say to

 represent Christopher Mazzei. ECF Nos. 25, 26.

         On April 10, 2023, Attorney Say filed a Motion to Withdraw as Attorney.

 ECF No. 38. The Court granted Attorney Say’s Motion and appointed Harlan

 Kimura to represent Christopher Mazzei. ECF Nos. 42, 43.

         Christopher and Erin Mazzei then together retained attorney Andrew

 Marcantel, Esq., to represent them jointly. Attorney Marcantel entered an

 appearance on behalf of both Mazzeis on September 19, 2023, and Attorney

 Kimura withdrew from representing Christopher Mazzei. ECF No. 49.

         On March 28, 2024, Christopher Mazzei filed a motion to substitute Dan

 Cogdell, Esq. as his counsel of record. ECF No. 71. The Court granted the

 defendant’s motion on the same date. ECF No. 73. Attorney Cogdell

 represented Christopher Mazzei at the time of his guilty plea and through

 sentencing and judgment.

                                     ARGUMENT

    I.      Legal Standard

         In general, Section 2255 of Title 28 of the United States Code provides the

 exclusive procedural mechanism by which a federal prisoner may test the legality

                                            4
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 of his detention. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003), quoting

 Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000).        Under Section 2255, “[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 a sentence, 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); United States v. Wilcox, 640 F.2d 970,

 972 (9th Cir. 1981).    Section 2255 is “intended to afford federal prisoners a

 remedy identical in scope to federal habeas corpus.” Davis v. United States, 417

 U.S. 333, 343 (1974).

       A section 2255 motion is not an unlimited procedural mechanism; grounds

 for Section 2255 are limited to: (1) constitutional issues, (2) challenges to the

 district court’s jurisdiction to impose the sentence, (3) challenges to the length of a

 sentence in excess of the statutory maximum, and (4) claims that the sentence is

 otherwise subject to collateral attack. Wilcox, 640 F.2d at 972. Where the

 moving party does not allege a lack of jurisdiction or constitutional error, there is

 no basis for collateral relief under Section 2255 unless the claimed error constitutes

 a fundamental defect which inherently results in a complete miscarriage of justice.

                                            5
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 Id. 972-73.

       Pursuant to Section 2255, a petitioner may seek to set aside his conviction

 on the ground that his Sixth Amendment right to counsel was violated because he

 received ineffective assistance of counsel. Strickland articulates a two-prong test

 to establish ineffective assistance of counsel: (1) deficient performance by counsel

 (the “incompetence prong”); and (2) that such deficient performance prejudiced his

 defense (the “prejudice prong”). Strickland v. Washington, 466 U.S. 668, 687

 (1984). To succeed on a claim of ineffective assistance of counsel, a petitioner

 must satisfy both prongs of the Strickland test. See id. 700.

       The court's analysis of an ineffective assistance of counsel claim does not

 require the mechanical application of the standards articulated in Strickland. Id.

 696. The Strickland Court explained,

               [T]here 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.... If it is easier to dispose of an
               ineffectiveness claim on the ground of lack of sufficient
               prejudice, which we expect will often be so, that course
               should be followed. Courts should strive to ensure that
               ineffectiveness claims not become so burdensome to
               defense counsel that the entire criminal justice system
               suffers as a result.
                                           6
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 Id. 697.

       When considering a Section 2255 petition, the petitioner’s allegations need

 not be accepted as true to the extent that they are contradicted by the record.

 United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986), cert. denied, 478 U.S.

 1033 (1986). If the petitioner’s allegations, when viewed against the record, do

 not state a claim for relief or are so palpably incredible or patently frivolous as to

 warrant summary dismissal, no evidentiary hearing is required. United States v.

 Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003).

 II.   The Defendant Knowingly and Voluntarily Waived the Right to File a
       Section 2255 Motion to Collaterally Attack His Conviction and Sentence,
       Other Than Upon the Ground of Ineffective Assistance of Counsel

       The defendant waived the right to collateral attack his conviction and

 sentence on grounds other than ineffective assistance of counsel (Ground I) in his

 plea agreement with the government. In the MOPA, the defendant agreed that he

 “waives the 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 . . . .” MOPA ¶ 13(a),

 ECF No. 78. The MOPA only preserved the defendant’s right to collaterally

 attack the portion of his sentence that was greater than his sentencing guidelines

 range, and a claim based upon ineffective assistance of counsel. Id.
                                            7
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       A defendant may waive a right to collaterally attack a conviction and

 sentence pursuant to 28 U.S.C. § 2255. United States v. Abarca, 985 F.2d 1012,

 1014 (9th Cir. 1993). Courts recognize that strong public policy considerations

 justify the enforcement of plea agreements containing knowing and voluntary

 waivers of the statutory right to collateral attack a conviction or sentence because

 such “waivers usefully preserve the finality of judgments and sentences imposed

 pursuant to valid plea agreements.” United States v. Anglin, 215 F.3d 1064, 1066

 (9th Cir. 2000). A waiver is enforceable if the language of the waiver

 encompasses the defendant’s right to collaterally challenge a conviction on the

 ground raised, and the waiver is knowingly and voluntarily made. United States v.

 Rodriguez, 49 F.4th 1205, 1212 (9th Cir. 2022).

       The language of the defendant’s collateral attack waiver clearly

 encompasses most of the grounds in the Motion. The analysis of the collateral

 attack waiver in a plea agreement is generally conducted under the ordinary rules

 of contract interpretation. United States v. Jackson, 21 F.4th 1205, 1213 (9th Cir

 2022), citing United States v. Transfiguracion, 442 F.3d 1222, 1228 (9th Cir.

 2006). Thus, if the terms of the plea agreement and an appeal waiver are clear and

 unambiguous on their face, the Court does not look to extrinsic evidence to

 determine their meaning. United States v. Speelman, 431 F.3d 1226, 1229 (9th

                                           8
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 Cir. 2005). The defendant’s plea agreement here contains a clear and

 unambiguous 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,”

 and should be enforced. MOPA ⁋ 13(a), ECF No. 78.

       Moreover, the defendant’s waiver was knowing and voluntary. The

 defendant appeared at his plea hearing with counsel and affirmed under oath that

 he was alert, competent, and capable of entering a plea. Exh. A (Transcript of

 August 28, 2024 Change of Plea Hearing at 2:10-14; 5:17-9:10). The defendant

 confirmed that he knowingly entered into a plea agreement with the government,

 and that he understood its terms. Id. at 20:18-21:20. The defendant then

 confirmed under oath at his plea hearing that he understood that he was waiving

 his ability to collateral attack his conviction. Id. at 25:25-27:17. The defendant

 then entered a guilty plea and the Court accepted the plea. Id. 70:10-16.

       The defendant enjoyed a significant benefit from his plea bargain: in

 exchange for the collateral challenge waiver, the government agreed to not to file

 unrelated bank fraud charges against the Mazzeis in connection with fraudulent

 submissions that they had made to at least three mortgage lenders with respect to

 two homes that the Mazzeis sought to purchase with the proceeds of their charged

                                          9
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 fraud, and earlier, for a home they purchased prior to their charged fraud. MOPA

 ¶ 4, ECF No. 78. The government also agreed not to charge the Mazzeis with

 identity theft in connection with one of these fraudulent submissions. Id.

       The Motion now suggests that the plea agreement was involuntary and

 coerced because the prosecution “had threatened to file charges against his 77-

 year-old mother who was not connected to the case in any way, shape, or form.”

 Motion 5, 17. Attorney Cogdell refutes this claim, and explains the actual

 motivation for the defendant’s decision to plead guilty.

       Attorney Cogdell explains that the defendant was “extremely familiar with

 the discovery in his case, and believed that a trial was in his best interest. Exhibit

 B at 4 (Declaration of Dan Cogdell). The defendant discussed possible defenses

 on multiple occasions. Id. However, the government presented Attorney Cogdell

 with evidence that supported additional bank fraud and aggravated identity theft

 charges, including proof that Christopher Mazzei had “literally ‘cut and pasted’

 false information into Bank statements that were ultimately provided to lenders

 which greatly inflated the amounts in Mazzei’s accounts.” Id. The government

 then offered the defendant the choice of accepting a plea to the existing charges, or

 the government would charge him with additional bank fraud and aggravated

 identity theft counts “which effectively more than doubled his exposure.” Id.

                                           10
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 Attorney Cogdell opined that the additional charges were “virtually impossible to

 defend against.” Id. Attorney Cogdell discussed the offer on multiple calls with

 the defendant, and on calls with Erin Mazzei and her attorney. Id. The defendant

 ultimately decided to plead guilty to his then-existing charges. Attorney Cogdell

 indicates that he “know[s] absolutely nothing about” any purported threat by the

 government against the defendant’s mother, as alleged in the Motion. Exh. B at 4.

        Consistent with Attorney Cogdell’s account, the defendant appeared at his

 change of plea hearing and expressly denied under oath that anyone had “made any

 promise or assurance to you of any kind in an effort to get you to enter a plea of

 guilty other than what is in the plea agreement itself” and that “anyone threatened

 you or anyone else, or forced you in any way to plead guilty.” Exh. A (Aug. 28,

 2024 Hrg. Tr. 8:22-9:3). “Solemn declarations in open court carry a strong

 presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 75, 97 S.Ct. 1621, 52

 L.Ed.2d 136 (1977).

        In sum, the defendant knowingly and voluntarily waived his right to

 collaterally attack his conviction and sentence on all grounds contained in his

 Motion, other than upon the basis of ineffective assistance of counsel.

 III.   The Defendant Did Not Receive Ineffective Assistance of Counsel

        The Motion fails to demonstrate that the defendant received ineffective

                                          11
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 assistance of counsel. As to this ground, the Motion makes two kinds of

 arguments: (1) Attorney Cogdell failed to raise various legal arguments at the

 change of plea and sentencing phases of the prosecution, such as objections to the

 government’s purported discovery violations, a term of the plea agreement, the

 factual record at sentencing, and the Court’s sentencing calculation, and inquiring

 about the application of forfeiture to restitution; and (2) Attorney Cogdell failed to

 communicate with the defendant, relay requests to the government to cooperate, or

 remove himself “after concerns were raised” of his representation. Mot. 4-5.

 These arguments do not satisfy the defendant’s burden to establish either the

 incompetence prong or prejudice prong of Strickland.

       A. The Record Does Not Support the Motion’s Claim of
          Ineffective Assistance From Attorney Richard Gronna

       The defendant fails to establish that his first court-appointed attorney,

 Richard Gronna, was ineffective. The Motion argues that “[i]n the year that

 Gronna represented Mazzei, he did no motions, no interviews, no files, no review,

 not even returning a phone call,” before he withdrew from representation. Id. 16.

       The uncontradicted record does not support the Motion’s claims against

 Attorney Gronna. Quan, 789 F.2d at 715 (allegations need not be accepted as true

 if contradicted by the record). The Indictment against the defendants was filed on

 May 26, 2022; the Court appointed Attorney Gronna to represent Christopher
                                           12
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 Mazzei about 3 weeks later, on June 13, 2022. ECF Nos. 1, 6. Attorney Gronna

 filed a motion to withdraw from representation on September 19, 2022, just three

 months after that, far short of the year that the defendant alleges. ECF No. 21.

 Christopher Mazzei did not enter a plea of guilty until two years later, on August

 28, 2024. ECF No. 77. During this time, Christopher Mazzei was represented by

 four other attorneys. The Motion fails to show that Attorney Gronna’s conduct in

 the three months that he represented Christopher Mazzei prejudiced him afterward.

       B. Attorney Cogdell Reasonably Did Not Raise Issues to the Court’s
          Attention Pertaining to Discovery Violations or the Terms of the Plea
          Agreement in Light of the Defendant’s Decision to Plead Guilty

       The Motion fails to establish that Attorney Cogdell provided ineffective

 assistance of counsel prior to and at his change of plea of hearing. As to the

 period prior to his guilty plea, the Motion alleges that Attorney Cogdell “did not

 argue Brady Violation,” in particular, that the government “suppressed

 [exculpatory] emails,” “tendered a plea deal that prohibited ALL downward

 departures,” and “did not question [the] judge[‘s] comments about [whether]

 forfeiture would be applied to restitution.” Motion 4-5. However, the

 defendant’s knowing and voluntary guilty plea negated any basis upon which

 Attorney Cogdell might have challenged the government’s evidence based upon a




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 violation of its discovery obligations, or any objection to the terms in the plea

 agreement.

       “That a guilty plea is a grave and solemn act to be accepted only with care

 and discernment has long been recognized.” Brady v. United States, 397 U.S.

 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). “Central to the plea and the

 foundation for entering judgment against the defendant is the defendant’s

 admission in open court that he committed the acts charged in the indictment.” Id.

 “But the plea is more than an admission of past conduct; it is the defendant’s

 consent that judgment of conviction may be entered without a trial – a waiver of

 his right to trial before a jury or a judge.” Id. Therefore, “[w]hen 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.” Tollett v. Henderson, 411 U.S. 258, 267 (1973). However,

 “there is an exception to the general rule barring federal habeas relief arising out of

 pre-plea constitutional violations” that permits a petitioner to “‘attack the voluntary

 and intelligent character of the guilty plea’ based on pre-plea ineffective assistance

 of counsel. . . .” Mahrt v. Beard, 849 F.3d 1164, 1170 (9th Cir. 2017), quoting

 Tollett, 411 U.S. at 267-68.

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       By pleading guilty, the defendant waived any challenge to the government’s

 evidence, including one based upon its purported failure to provide exculpatory

 evidence. The Motion alleges that the government “suppressed emails from the

 loan originators that explicitly stated that payroll projections were acceptable for

 [Paycheck Protection Program (PPP)] loan applications.” Motion 17. This

 evidence is apparently relevant to whether the Mazzeis possessed the requisite

 intent to deceive and cheat for Count 1, the wire fraud conspiracy.

       However, both defendants admitted to their fraudulent conduct and their

 intent under oath at their change of plea hearing: in particular, they admitted that

 they were aware that they had provided false records to banks in support of their

 PPP loan applications and that they lied about owning other businesses that were

 receiving PPP loans, and that they did so with the intent to defraud the banks. See

 generally Exh. A (Aug. 28, 2024 Hrg. Tr. 51:17-61:2). Following their

 admissions, Attorney Cogdell reasonably did not pursue any objection based upon

 a discovery issue.

       Indeed, separate and apart from whether the exculpatory evidence that the

 Motion claims existed, i.e., emails from loan originators to the defendants

 instructing them to submit false PPP applications, this evidence was in the

 possession of the defendants themselves at the time of their plea. “[N]o Brady

                                           15
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 issue exists if the alleged suppressed information was apparent to the defendant or

 within the knowledge of the defendant.” Cunningham v. Wong, 704 F.3d 1143,

 1154 (9th Cir. 2013). Therefore, any Brady violation argument would have been

 meritless, and Attorney Cogdell’s purported failure to raise one does not constitute

 ineffective assistance. Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985), citing

 Cooper v. Fitzharris, 551 F.2d 1162, 1166 (9th Cir. 1977) (“Failure to raise a

 meritless argument does not constitute ineffective assistance.”).

       The defendant also waived the right to challenge his plea agreement upon

 the ground that it “prohibited ALL downward departures,” which the Motion now

 characterizes as “coercive” and “unconstitutional.” Motion 5, 17. Attorney

 Cogdell explained this term to the defendant when he was considering the

 government’s plea offer, and he was “plainly aware of this restriction” when he

 signed the plea agreement. Exh. B at 4 (Cogdell Decl.). As shown in Part II,

 supra, the defendant entered into the plea knowingly and voluntarily, and not as a

 result of coercion, and stated as much under oath at his change of plea hearing.

 Exh. A (Aug. 28, 2024 Hrg. Tr. 11:14-23). By so doing, he waived any objections

 to any particular terms, and Attorney Cogdell reasonably did not seek to challenge

 the validity of the plea agreement on this basis.




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       Moreover, the Motion mischaracterizes the plea agreement to support its

 attack upon one of its terms. Paragraph 10(a) of the Mazzeis’ plea agreements

 restricted the defendants from “argu[ing] for a sentence within the calculated

 advisory guideline range,” but permitted the Court to depart from the advisory

 guidelines range. ECF No. 78 ¶ 10(a) (“CHRISTOPHER MAZZEI understands

 that this stipulation is not binding on the Court.”). Paragraph 10(a) cited to

 Federal Rule of Criminal Procedure 11(c)(1)(B), which explicitly states that “a

 recommendation or request” pursuant to it “does not bind the court.” Fed. R.

 Crim. Proc. R 11(c)(1)(B). In any event, stipulated sentencing ranges are legally

 permissible, and not unconstitutional. United States v. Pacheco-Navarette, 432

 F.3d 967, 970 (9th Cir. 2005) (permitting stipulated sentencing range even outside

 Guidelines range). Any argument to the contrary would have been meritless.

       Finally, Attorney Cogdell reasonably did not “question [the] judge[‘s]

 comments about [whether] forfeiture would be applied towards restitution,” as the

 Motion argues he should have. The Motion claims that the Court “made allusions

 to how recovered funds should work in relation to restitution, giving the

 impression that [the] Mazzeis would not pay twice for the same amount. Mot. 18;

 see also Mot. 7 (“The Court misled defendants at [the] Change of Plea hearing

 about how recovered/forfeited funds would be applied to restitution.”).

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       Notwithstanding the defendant’s claim that the Court misled them, the

 defendant’s MOPA unambiguously states that the defendant was subject to both

 forfeiture and restitution, and that “the forfeiture of the forfeitable property does

 not constitute and will not be treated as satisfaction, in whole or in part, of any . . .

 restitution . . . .” MOPA ¶ 15(f), ECF No. 78. This term is consistent with Ninth

 Circuit authority, which holds that forfeiture and restitution are distinct and

 represent separate remedies with different purposes. United States v. Davis, 706

 F.3d 1081, 1083 (9th Cir. 2013); United States v. Newman, 659 F.3d 1235, 1241

 (9th Cir. 2011). Forfeiture is a punishment for the commission of crime;

 restitution serves to make the victim whole. Davis, 706 F.3d at 1084 (“[Forfeiture

 and restitution] are different in nature, kind, and purpose.”); Newman, 659 F.3d at

 1241. “Money levied as a punitive fine does not ‘double’ the money intended to

 compensate a loss anymore [sic] than the addition of apples to one’s store doubles

 the orange stock.” Davis, 706 F.3d at 1084. Therefore, a defendant convicted of

 a fraud crime against the government is subject to both forfeiture and restitution,

 and one does not offset the other. Id. (“[T]here is no provision that authorizes an

 offset solely because the government will receive both restitution and

 forfeiture. Because Congress clearly knew how to provide for offset in other

 situations, we conclude it did not intend it here.”).

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       The Court’s statements at the defendant’s change of plea hearing were clear

 that the defendant would be subject to two distinct obligations for forfeiture and

 restitution, which was consistent with the MOPA. Exh. A (Aug. 28, 2024 Hrg. Tr.

 18:7-12) (“So, in addition to forfeiture, there would be a restitution order.”).

 However, upon questioning from Erin Mazzei as to the amount of restitution

 owing, the Court explained that it could not provide that amount, and volunteered

 that, as a hypothetical example, there may be “credit for monies already received.”

 Id. 18:18-19:16. The Court explicitly stated that its example was a “hypothetical”

 explanation of restitution, not a specific reference to the government’s forfeiture of

 the fraud proceeds in the Mazzeis’ case.

       In light of the foregoing, Attorney Cogdell reasonably did not object or raise

 the issue of whether forfeiture would be applied toward restitution at the

 defendant’s change of plea or sentencing hearings. Exh. B at 6-7 (Cogdell Decl.).

 Moreover, the defendants were not prejudiced by Attorney Cogdell’s omission.

 The prior seizures of funds and assets were credited toward the defendant’s

 forfeiture obligation. See Final Order of Forfeiture 4-6, ECF No. 105. No

 authority requires that the defendant’s restitution obligation also be offset by the

 money seized in forfeiture.




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       In sum, Attorney Cogdell’s representations and omissions at the plea phase

 do not satisfy either the Strickland incompetence or prejudice prongs.

       C. Attorney Cogdell Provided Reasonable and Competent
          Legal Assistance at the Defendant’s Sentencing

       The Motion fails to establish that the defendant received ineffective

 assistance at the sentencing phase. The Motion raises four claims regarding this

 phase. Ground One explains that: (1) Attorney Cogdell “did not respond to

 numerous requests from Petitioner for a [U.S.S.G. §] 5K1.1” cooperation

 agreement with the government; (2) he “did not argue actual loss v. intended loss;”

 and that (3) he failed to argue that the government attorney committed

 “misconduct,” which the defendant explains in Ground Two was making “false

 statements regarding material issues at sentencing hearing.” Mot. 4-5. Ground

 Two also complains that: (3) a “DOJ investigator called a character witness

 [posing] as a court official to ‘verify’ his character letter.” Mot. 5.

           1. Attorney Cogdell Relayed the Defendant’s Request to Cooperate to
              the Government Several Times; The Government Did Not Accept

       Contrary to the claim made by the Motion, Attorney Cogdell had

 approached the government on multiple occasions, in writing and over the

 telephone, with the defendant’s offer to cooperate Sentencing Guideline Section

 5K1.1. Exh. B at 1-3 (Cogdell Decl.). In particular, the defendant claimed that

                                            20
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 he possessed evidence that representatives from various banking institutions had

 engaged in fraudulent behavior. Based upon its investigation into the defendant’s

 interactions with multiple banks and investment companies, the government

 determined that the defendant’s claims were not credible, and did not accept his

 offer to cooperate. Attorney Cogdell acknowledges that the government’s

 discovery of “separate and additional fraudulent conduct in the form of mortgage

 fraud” had made seeking cooperation “exceedingly difficult.” Id. at 3.

           2. Attorney Cogdell Reasonably Refrained from Challenging the
              Court’s Correct Sentencing Calculation Based Upon Actual Loss

       Attorney Cogdell reasonably refrained from challenging the defendant’s

 sentencing calculation based upon the loss at issue. Sentencing Guideline Section

 2B1.1 explains that the Court must determine a defendant’s offense level for fraud

 cases by starting with a base offense level of 7 and then increasing that offense

 level to the level corresponding to the amount of the loss, as set forth in the loss

 table at Section 2B1.1(b)(1). The defendants here stipulated that they “obtained

 approximately $1,365,000.00 in PPP funds” in the MOPA, which represents the

 actual loss at issue in this case. MOPA ¶ 8(c), ECF No. 79. Section 2B1.1(b)(1)

 explains that an actual loss amount between $550,000 and $1,500,000 equates to

 an increase of 14 levels. The Court correctly applied Section 2B1.1(b)(1) and

 determined that the defendant had a total offense level of 20, after enhancements
                                           21
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 and adjustments, which carried a guideline range of 33 to 41 months. PSR ¶ 53, p.

 33; U.S. Sentencing Guidelines Ch. 5, Pt. A.

        The Motion alleges that Attorney Cogdell “and his team” represented to

 him that they would challenge the Court’s sentencing calculation by arguing that

 the Court erroneously based its calculation upon “intended loss,” rather than actual

 loss. Mot. 16. As further explained by Erin Mazzei’s attorney, John Schum, the

 Mazzeis apparently believed that the actual loss at issue should have been $0,

 possibly because they believed—incorrectly— that the government seized the full

 amount of the PPP loan proceeds that they fraudulently obtained, and therefore, the

 seized amount should have been credited against their loss for the purposes of

 calculating their sentences. The Motion concludes that, had Attorney Cogdell

 pursued this argument, “[t]he sentencing guideline would have been much lower,

 most likely resulting in probation. . . .” Mot. 16.

       The Motion is mistaken. U.S.S.G. Section 2B1.1 defines “actual loss” as

 the “reasonably foreseeable pecuniary harm that resulted from the offense.” The

 defendant stipulated that he obtained $1,365,000, from the PPP program, which

 was the pecuniary harm from the defendant’s fraud. PSR ¶¶ 42, 43; MOPA ¶

 8(c), ECF No. 78. Even if the defendant is correct that the assets that the

 government seized from him after his fraud was discovered should be credited

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 against his loss for the purposes of his sentencing calculation,1 the defendant

 clearly intended to obtain the full $1,365,000 loan. Therefore, the defendant’s

 conduct would still fall within the Section 2B1.1 definition of “intended loss,”

 which is “the pecuniary harm that the defendant purposely sought to inflict.”

 Accordingly, as Section 2B1.1 defines “loss” as the greater of actual or intended

 loss, the defendant’s sentencing calculation would still be based upon a $1,365,000

 loss.

         United States v. Banks, cited by the Motion, is inapposite. 55 F.4th 246 (3d

 Cir. 2022). Banks stands for the proposition that U.S. Sentencing Guidelines

 Section 2B1.1 requires that sentencing calculations for fraud cases must be based

 upon the loss at issue, which the Third Circuit held ordinarily meant “actual loss,”

 and therefore, the Section 2B1.1 rule commentary that defined “loss” to include

 “intended loss” was entitled to “no weight.” Banks, 55 F.4th at 258. However,

 Banks was never the law in the Ninth Circuit. See United States v. Hackett, 123

 F.4th 1005, 1015 (9th Cir. 2024). Moreover, the U.S. Sentencing Commission


 1
    The government does not concede this point, which is unnecessary to resolve
 here. See United States v. Freitekh, 114 F.4th 292, 320 (4th Cir. 2024) (actual loss
 is not reduced by amount recovered after detection); see also U.S.S.G. § 2B1.1,
 Application Note 3(D)(i) (“Credits Against Loss – Loss shall be reduced by the
 following: The money returned . . . by the defendant . . . to the victim before the
 offense was detected.”) (emphasis added).

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 superseded Banks by incorporating the definition of intended loss into the main

 body of Section 2B1.1, and pulling it out of the rule commentary. See U.S.S.G.

 § 2B1.1(b)(1) (*Notes to Table: (A) Loss—Loss is the greater of actual loss or

 intended loss.”) (2024). The 2024 Sentencing Guidelines Manual, which the

 Probation Office relied upon in calculating the defendants’ sentences, reflects this

 change. See PSR ¶ 42. Therefore, the Section 2B1.1 definition of “intended

 loss” applies in the Ninth Circuit and the defendant is responsible for a fraud loss

 of $1,365,000 under either definition of actual or intended loss.

       In sum, the Court’s sentencing calculation was accurate and Attorney

 Cogdell reasonably did not challenge it.

          3. No Prejudice Resulted from Attorney Cogdell’s
             Decision Not to Object to the Factual Record at Sentencing

       The Motion also does not establish any prejudice to the defendant from

 Attorney Cogdell’s failure to object to “several false statements regarding material

 issues at [the] sentencing hearing” by the government attorney. Motion 4, 5. In

 his attached brief, the defendant details four purportedly untrue statements made

 by the government at sentencing to support its recommended sentence: “the

 Kapolei condo was purchased solely for a VRBO home;” “the claim that PPP

 funds were used to pay off the Arroyo Grande, California home mortgage;” “the

 claim that Mazzeis purchased a billboard to get the attention of Dwayne “The
                                            24
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 Rock” Johnson;” and the mischaracterization of Ohana Project as a ‘vanity

 television project.’” Id. 17.

       Attorney Cogdell’s failure to object to the government’s purported statement

 regarding the purpose of the Mazzeis’ Kapolei condominium did not prejudice the

 defendants. As to this matter, the salient fact for sentencing was that the Mazzeis

 defrauded the PPP loan program to purchase an asset for personal use, not the

 particular personal use that the Mazzeis found for the asset. Nonetheless,

 Attorney Cogdell was able to clarify at sentencing that his client had indeed further

 profited off the Kapolei condo that the Mazzeis purchased with PPP proceeds by

 listing it on a short-term rental website, VRBO, just as the government alleged, but

 had only done so “after the fraud was discovered.” Exhibit C (Transcript of

 January 9, 2025 Sentencing Hearing 43:7-10). As the defendant was able to

 address this nonsalient point, he was not prejudiced by the government’s statement.

       Similarly, the Motion fails to establish that the defendant was prejudiced by

 Attorney Cogdell’s failure to object to the government’s argument that the Mazzeis

 sought the attention of producer Dwayne “The Rock” Johnson for their

 fraudulently-funded venture, and the government’s argument that the venture was a

 “vanity television project.” Neither statement was material to the defendant’s

 sentence: both defendants admitted that they intentionally misused PPP loan funds

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 to “develop various film and television projects” and that they “spent

 approximately $164,796 to film a promotional trailer for a project ‘Ohana’ that

 they planned to produce in the State of Hawaii.” MOPA ¶ 8(q), ECF No. 78.

 Moreover, Motion’s supporting documentation admits that the Mazzeis had in fact

 purchased a billboard to reach Dwayne Johnson to promote their fraudulent PPP-

 funded business venture, albeit with non-PPP funds. Mot. 40 (“The DOJ seized

 all our assets and funds on May 25, 2021. The funds used to purchase this billboard

 were given to us by a family friend.”).

       Finally, Attorney Cogdell reasonably did not argue to the Court the Motion’s

 erroneous claim that the defendant’s fraudulently-obtained PPP funds were not

 used to pay the mortgage on his home in Arroyo Grande; the sentencing record

 amply refutes this claim. The Mazzeis both pled guilty to Count 3 of the

 Indictment, which charged them with wire fraud conspiracy in connection with a

 scheme to fraudulently obtain PPP loan funds. Indictment 6-16, ECF No. 1. As

 charged in the Indictment, pursuant to Title 18, United States Code, Section

 982(a)(2)(A), the government was entitled to “any and all property, real or

 personal, that … is derived from proceeds traceable to, or . . . obtained directly or

 indirectly as a result of, violations of” the Count 3 wire fraud conspiracy. Id. 20.

 The Indictment gave notice to the Mazzeis that the government was seeking to

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 forfeit the “real property located at […] Arroyo Grande, California,” as “derived

 from proceeds traceable to” their wire fraud conspiracy, charged in Counts 1 and 3.

 Id. 21, ECF No. 1.

       Moreover, Christopher Mazzei agreed in the MOPA to forfeit “all of his

 right, title, and interest” in the Arroyo Grande property, and “acknowledge[d] that

 the . . . Specific Property [was] subject to forfeiture pursuant to 18 U.S.C.

 § 982(a)(2)(A) as property . . . derived from proceeds [he] obtained directly or

 indirectly as a result of the conspiracy to commit wire fraud.” MOPA ¶¶ 15(a),

 (b), ECF No. 78. Both Mazzeis acknowledged the government’s authority to

 forfeit the Arroyo Grande house at their change of plea hearing. Exh. A (Aug. 28,

 2024 Hrg. Tr. 37:16-20).

       Following review of the evidence, including the Mazzeis’ admissions, the

 PSR found that “the Mazzeis utilized [fraudulently-obtained PPP funds] on

 personal and other expenses that did not fit the purpose of the loans[, including]

 $39,445 for mortgage payments on their residence located [in] . . . Arroyo Grande

 California.” PSR ¶ 27. In light of the foregoing, the argument that the Mazzeis’

 Arroyo Grande house was not paid for in part from fraudulently-obtained PPP

 funds would have been meritless.




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       The Motion buries elsewhere in its pages other factual claims that it argues

 Attorney Cogdell was ineffective for failing to raise: i.e., [1] “evidence that banks

 were not fully knowledgeable of the [PPP] guidelines. . . [2] banks . . . [were]

 incentivized to turn in those that received PPP loans, and [3] the legitimate

 business evidence of the Ohana Project.” Motion 17. The mental state of victim

 banks is irrelevant to the defendant’s guilt or any Section 3553(a) sentencing

 factor. Similarly, the salient fact about the Mazzeis’ Ohana television venture was

 that the Mazzeis defrauded the Paycheck Protection Program by lying on multiple

 applications about business operations and salaries for employees that did not exist

 in order to fund their unrealized filmmaking dreams. Attorney Cogdell reasonably

 did not raise these irrelevant or unhelpful arguments to the Court.

         4. No Prejudice Resulted From Attorney Cogdell’s Failure to Raise Other
            Arguments Regarding Government Conduct At or After Sentencing

       The Motion also argues that Attorney Cogdell was ineffective for failing to

 raise to the Court’s attention two other acts of purported prosecutorial misconduct:

 first, a “DOJ investigator called a character witness pos[ing] as a court official to

 ‘verify’ his character letter,” and second, that the prosecutor “used forfeited funds

 to bid at [the] foreclosure auction for personal gain.” Motion 5. The Motion

 does not establish that the defendant was prejudiced by either purported act.


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       As to the first claim, the defendant was not prejudiced by the government’s

 verification of a character letter that the defendant submitted for the Court’s

 consideration at sentencing. The defendant attached the character letter at issue to

 his Motion. Motion 53-54. The defendant had attached the same letter to his

 Sentencing Memorandum. ECF No. 103-1 at 20-21. The Court considered the

 letter as part of its Section 3553(a) analysis when it determined its sentence. The

 Motion therefore does not establish that the defendant was prejudiced by the

 government’s verification of the letter’s authenticity.2

       Second, the Motion fails to establish that the defendant was prejudiced by

 Attorney Cogdell’s purported failure to raise to the Court’s attention his accusation

 that the government attorney had “used forfeited funds to bid [for the defendant’s

 Arroyo Grande home] at foreclosure auction for personal gain.” Mot. 5. The

 defendant supports this claim with a text message that he claims is from a friend

 who was present at the foreclosure auction and who reported, “[t]he feds were

 bidding it up.” Id. 60.



 2
   The government acknowledges that a case agent called the author of the
 character letter, P.J.H. to verify that he had written the letter. As referenced in the
 plea agreement, the government had discovered that the defendants had previously
 used P.J.H.’s identity without his/her consent in connection with an uncharged
 wire fraud. MOPA ¶ 4, ECF No. 78.

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       This allegation regarding the prosecutor’s purported misconduct is disputed

 and would not have prejudiced the defendant in any event. By the time of their

 sentencing, the defendants had already agreed that their Arroyo Grande home was

 subject to forfeiture in its entirety by the government. See Order of Forfeiture

 (Money Judgment) and Preliminary Order of Forfeiture (Specific Property) 9, ECF

 No. 80. Following publication of notice pursuant to 21 U.S.C. § 853(n)(3), two

 interested parties filed petitions with the Court giving notice of their interests in the

 property that were superior to the government’s. ECF Nos. 81, 86. All interested

 parties then entered into a stipulation whereby the senior-most lienholder would

 complete foreclosure proceedings against the Arroyo Grande home, and the parties

 would distribute the proceeds according to lien priority. Stipulation 5-6, ECF No.

 101. Ultimately, the sale took place on January 21, 2025 and the home was

 purchased by a third-party bidder. Exhibit D. The proceeds were distributed

 according to the parties’ stipulation.

       Separate and apart from whether any misconduct took place—which the

 government vigorously disputes—the foreclosure sale process did not affect the

 defendant, and did not take place until after the defendants’ January 9, 2025

 sentencing. Accordingly, Attorney Cogdell would not have been able to raise this




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 issue to the Court’s attention at sentencing, and the Motion fails to demonstrate

 that the defendant was prejudiced by any conduct of his attorney.

       D. The Motion’s Remaining Claims Pertaining
          to Attorney Cogdell Fail to Demonstrate Any Prejudice

       The Motion levels two other accusations against Attorney Cogdell that fail

 to satisfy the defendant’s burden to establish ineffective assistance. For instance,

 the Motion claims that: (1) Attorney Cogdell was “undergoing a family health

 issue, which hampered his ability to mount a defense,” and (2) he would not

 remove himself after concerns were raised of his ability to defend after Change of

 Plea hearing.” Motion 4.

       The defendant provides no detail to support his accusation that Attorney

 Cogdell’s representation was “hampered” by personal circumstances; this is a

 sufficient basis upon which to reject this claim. Boehme v. Maxwell, 423 F.2d

 1056, 1058 (9th Cir. 1970) (“Conclusory allegations which are not supported by a

 statement of specific facts do not warrant habeas relief.”).

       Attorney Cogdell details his extensive efforts to advise the defendant prior to

 the defendant’s decision to change his plea and at the sentencing phase. Exh. B at

 4-5 (Cogdell Decl.). After he was retained, Attorney Cogdell reviewed the case

 discovery and new investigative materials provided by the government, and

 communicated with the defendant multiple times a month via telephone and e-
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 mail. Id. 4. Attorney Cogdell provided his client with advice regarding his

 client’s likelihood of success at trial, and his assessment of the defendant’s

 sentencing exposure. Id. After the defendant decided to plead guilty, Attorney

 Cogdell negotiated the terms of his client’s plea agreement and accompanied the

 defendant at his change of plea hearing. Id. After the defendant entered his

 guilty plea, Attorney Cogdell provided the defendant with his presentence

 investigation report. Id. 5. Attorney Cogdell and his associates worked with the

 defendant to prepare a Sentencing Memorandum, including legal objections. Id.

 In preparation for sentencing, Attorney Cogdell conferred with the defendant

 several times on the telephone and once in person, and he gave the defendant an

 overview of what to expect at sentencing. Exh. B at 5. In addition, Attorney

 Cogdell worked with the defendant on his allocation. Id. In sum, Attorney

 Cogdell provided exemplary legal assistance to the defendant.

          Similarly, the defendant provides no detail regarding his claim that Attorney

 Cogdell “would not remove himself” from representation. Attorney Cogdell

 denies that the defendant made any request that he withdraw from representation.

 Id. 5.

          Finally, the Motion claims without support that the Court erred by assigning

 him a “Personal Injury Attorney,” “instead of a Criminal Defense attorney.”

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 Motion 8. The docket indicates that Christopher Mazzei was represented by five

 attorneys since his Indictment. The Court appointed three attorneys to represent

 him. Each of the appointed attorneys were drawn from the Court’s Criminal

 Justice Act panel. Following these appointments, Christopher Mazzei chose to

 retain Andrew Marcantel, before terminating Marcantel’s services and retaining

 Attorney Cogdell. The Motion does not establish that his representation by his

 three appointed counsel prejudiced him later, when he was represented by

 Attorneys Marcantel and Cogdell. Therefore, the Motion’s allegation that his

 appointed counsel did not possess criminal expertise is insufficient to establish

 either incompetence or prejudice.

       In sum, the Motion has failed to satisfy either the incompetence prong or

 prejudice prong of Strickland with respect to the defendant’s representation, and,

 therefore, the defendant has failed to demonstrate that he received ineffective

 assistance of counsel.

 IV.   Most of the Motion’s Grounds are
       Procedurally Defaulted [Grounds II, III, IV]

       Separate and apart from the fact that the defendant waived the right to

 collaterally challenge his conviction and sentence, other than upon the basis of

 ineffective assistance of counsel, he procedurally defaulted many of the claims in

 the Motion. Among other grounds, the Motion alleges: (1) violations of the
                                          33
Case 1:22-cr-00045-JMS     Document 142     Filed 03/20/26   Page 41 of 44 PageID.1484




 defendant’s pre-guilty plea discovery rights,3 (2) an illegal plea agreement term,4

 (3) improper venue,5 (4) erroneous notice of forfeiture and restitution at the change

 of plea hearing;6 (5) erroneous restitution and sentence calculations;7 (6) a Speedy

 Trial right violation;8 and (7) erroneous forfeiture procedure.9

       All these arguments were procedurally defaulted because the defendant

 failed to raise them upon direct appeal. The Ninth Circuit has held that Section

 2255 may not be invoked to “relitigate questions which were or should have been

 raised on a direct appeal from judgment of conviction. United States v. Marchese,

 341 F.2d 782, 789 (9th Cir. 1965) (emphasis added), citing Dodd v. United States,

 321 F.2d 240 (9th Cir. 1963). Thus, “grounds which were apparent when

 appellant appealed from his convictions cannot, thereafter, be made the basis for an

 attack on a motion to set aside judgment and sentence.” Hammond v. United


 3
    “AUSA Gregg Yates suppressed emails from loan originators;” Mot. 5, 17.
 “Exculpatory evidence was barred from being presented;” Id. 8, 19.
 4
    “AUSA Yates tendered a plea deal that prohibited ALL downward departures.”
 Id. 5; 17.
 5
    “Venue being improper was never argued;” Id. 8, 19.
 6
    “Court misled defendants at Change of Plea hearing about how
 recovered/forfeited funds would be applied to restitution.” Id. 7.
 7
    “Judge . . . still had required more payment than what was lost;” Mot. 7. “Court
 did not calculate sentence based on actual loss.” Id.
 8
    “Right to Speedy trial was waived by attorney, not petitioner.” Id. 8.
 9
    “DOJ violated their forfeiture policy, starting a 90-day window for charges to be
 filed after assets are seized, or the property is to be returned. Mazzei claims that it
 took an entire year for charges to be filed.” Id. 18.
                                             34
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 States, 408 F.2d 481, 483 (9th Cir. 1969). Where a defendant has procedurally

 defaulted a claim by failing to raise it on direct review, the claim may be raised in

 habeas only if the defendant can first demonstrate cause and actual prejudice.

 Bousley v. United States, 523 U.S. at 622; Massaro v. United States, 538 U.S. 500,

 504, 123 S.Ct. 1690, 155 L.Ed. 2d 714 (2003). However, cause “must be

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

 [her].” Coleman v. Thompson, 501 U.S. 722, 753 (1991). Therefore, a plea

 agreement waiver cannot constitute cause.” Garcia-Santos v. United States, 273

 F.3d 506, 508 (2d Cir. 2001).

       As the facts supporting each of the aforementioned arguments were known

 to the defendant at the time of his sentencing and judgment, the defendant could

 have raised them on appeal, had he not waived his right to appeal in his plea

 agreement. As the defendant’s appellate waiver does not constitute cause to

 permit these claims here, the aforementioned claims were procedurally defaulted

 and may not be raised for the first time in a motion pursuant to Title 28, United

 States Code, Section 2255.

 V.    Defendant’s Remaining Grounds are Not Cognizable
       Under Section 2255 [Ground III]

       Ground III of the Motion relating to “Forfeiture and Restitution Issues” does

 not state a claim for Section 2255 relief. Ground III challenges the defendant’s
                                           35
Case 1:22-cr-00045-JMS     Document 142     Filed 03/20/26    Page 43 of 44 PageID.1486




 restitution order, in part, upon the grounds that the court “required more payment

 than what was lost” and that the Court failed to give proper notice to the

 defendants “about how recovered/forfeited funds would be applied to restitution,”

 Mot. 7, which gave “the impression [the] Mazzei[s] would not pay twice for the

 same amount.” Id. 18. In addition, the Motion’s attached brief alleges that the

 government “violat[ed] their forfeiture policy, [which] stat[es that there is] a 90-

 day window for charges to be filed after assets are seized, or the property [must be]

 returned.” Id. 18.

       “[B]y its plain terms, § 2255 is available only to defendants who are in

 custody and claiming the right to be released.” United States v. Thiele, 314 F.3d

 399, 402 (9th Cir. 2002). Therefore, a Section 2255 motion may not be used to

 challenge a restitution order or a forfeiture order. See id. (restitution); United

 States v. Finze, 428 Fed. Appx. 672, 677 (9th Cir. 2011) (unpublished) (forfeiture).

 Moreover, the Motion’s claim that the government’s forfeiture violated its internal

 policies is also not cognizable under Section 2255. C.f. United States v.

 Timmreck, 441 U.S. 780, 783-84 (1979) (violations of Federal Rules of Criminal

 Procedure are non-cognizable).

 //

 //

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                                   CONCLUSION

       In light of the foregoing, the United States respectfully requests that this

 Court deny the defendant’s motion to vacate or set aside his conviction or sentence.

       DATED: March 20, 2026, at Honolulu, Hawaii.

                                               KENNETH M. SORENSON
                                               United States Attorney
                                               District of Hawaii


                                               By /s/ Gregg Paris Yates
                                                 GREGG PARIS YATES
                                                 Assistant U.S. Attorney




                                          37


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