from the United States District Court for the District of
Utah (D.C. Nos. 2:17-CV-00267-RJS & 2:11-CR-00984-RJS-1)
Gregory W. Stevens, Salt Lake City, UT, for the Appellant.
D. Tenney (John W. Huber, United States Attorney, with him on
the brief), Office of the United States Attorney, District of
Utah, Salt Lake City, UT, for the Appellee.
HARTZ, MURPHY, and CARSON, Circuit Judges.
CARSON, CIRCUIT JUDGE.
convicted Robert Holloway in federal district court of four
counts of wire fraud in violation of 18 U.S.C. § 1343
and one count of submitting a false tax return in violation
of 26 U.S.C. § 7206. The district court sentenced
Holloway to 225 months' imprisonment, after applying a
six-level enhancement for crimes involving 250 or more
victims under U.S.S.G. § 2B1.1(b)(2)(C)
(2014). After unsuccessfully challenging his
conviction and sentence on direct appeal, Holloway filed a 28
U.S.C. § 2255 motion raising three grounds for relief:
(1) that a total breakdown of communication between Holloway
and his trial counsel caused his trial counsel to perform
ineffectively; (2) that his trial counsel acted ineffectively
by failing to argue that the evidence did not support the
district court's application of the six-level sentencing
enhancement; and (3) that the prosecution violated his due
process rights by failing to turn over to the defense
favorable information possessed by a prosecution witness
contrary to Brady v. Maryland, 373 U.S. 83 (1963).
The district court denied Holloway's § 2255 motion,
but granted a certificate of appealability on all three
issues. We exercise jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253 and affirm.
Holloway was the president and CEO of U.S. Ventures-a company
that traded in the futures market. Holloway told investors he
had developed a special algorithm that allowed him to trade
without losses. He claimed that because of the algorithm he
"could trade the markets and make money whether the
market went up or the market went down."
grandiose claims were false. Instead, for several years
Holloway operated U.S. Ventures as a "Ponzi
deal"-"taking new clients' money and paying out
salaries and distributions." This scheme continued until
2007 when the SEC froze his accounts.
subsequently faced criminal charges. Relevant to this case,
federal prosecutors indicted Holloway on four counts of wire
fraud and one count of submitting a false tax return.
Edwin Wall initially represented Holloway in his criminal
case. Approximately a month and a half before trial was set
to begin, Wall withdrew as counsel for Holloway. After
Wall's withdrawal, the district court vacated the trial
date due to the complexity of the case and appointed attorney
Kevin Murphy to represent Holloway.
November 19, 2013, the district court held a status
conference hearing with the parties. Murphy mentioned a
long-shot chance that Holloway might retain private counsel
before trial. The judge responded directly to Holloway:
"[I]f you're going to retain counsel you're
going to do so by the end of the year. We're not going to
delay this trial date. And so if you hire a lawyer, you are
welcome to do so, but it has got to be by the end of the
calendar year so he can get in and get up to speed and
maintain all of the dates that we have got."
March 2014, Murphy filed a motion requesting a hearing on
Holloway's competency. In support of the motion, Murphy
attached a competency evaluation and a supplemental evaluator
memorandum written by Dr. Jonathan Bone. During his initial
competency evaluation, Dr. Bone determined that Holloway
exhibited mild paranoia, and features of mania and hypomania.
He also noted that Holloway met the criteria for Narcissistic
Personality Disorder. Yet, he ultimately concluded that
Holloway was competent to stand trial.
supplemental evaluation, however, Dr. Bone expressed greater
concern regarding Holloway's disposition and ability to
stand trial. Dr. Bone stated that he "believe[d] that
[Holloway was] likely compromised with regard to judgment,
decision-making, and assisting properly in his defense."
part, Holloway adamantly opposed an incompetency defense, and
his counsel's supposed fixation on his mental health
frustrated him. Emails between Holloway and Murphy
demonstrate the increasing strain these competency
evaluations placed on the attorney-client relationship. For
example, Murphy repeatedly sought Holloway's permission
to disclose Dr. Bone's evaluation to prosecutors.
Holloway denied each request. In an email dated March 24, 2014,
Murphy requested that Holloway allow him to talk with
prosecutors generally about Dr. Bone's evaluation without
disclosing it to them. Holloway responded:
My answer would be. Since i strongly disagree with the
report, especially the assertion of you and Dr. Bone what it
was faked My answer is a definate no. I do not want anything
regarding this report discussed in anyway shape or form with
prosecutors or anyone else. As far as a more definite pea
bargain i am not interested in showing our ( your) hand at
this time. At such time as it would be appropriate i will let
expressed a similar sentiment in an email dated March 27,
2014, after Murphy again asked for permission to disclose
Holloway's mental health evaluation to prosecutors:
You told me that Bone was brought in to evaluate whether or
not there was an attempt to defraud. I was also told by you
that the investigator was brought in by you on limited
resources to investigate potential lead that would bring out
the truth. Instead it appears Dr. Bone & the
investigators were brought on solely to portray me as
mentally ill. If I had of known Dr. Bones background
regarding his work with as an expert on the criminally insane
or innocence by being mentally ill pleas, and that was your
intent from the beginning, I would have gone in completely
Spending the limited resources that the Government allocated
to you to attempt to convince me into a plea deal was not
part of the intended plan. We have now wasted 7 months of my
life to be nowhere. Being creative, not being like everyone
else in a box does not equate mental illness. I do not
appreciate the constant reference to your belief that I am
mentally ill or your belief that I faked the results of the
test merely because the results did not support your theory
of the case.
Your job is to defend me not package me for the purpose of an
easy plea. In my last meeting with you & Dr. Bone I felt
like I was ambushed. The accusations and language used by
both of you which is still continuing is what I would expect
from an accuser not from my counsel. The last 7 months should
have been spent addressing the facts of the case rather than
looking for the simple way out. Early on it is apparent you
bought into the Government side of the case rather than
attacking it or addressing my side.
With what little time we have we need to spend it building my
case. To show Government that report is of no benefit to my
case. Rather showing that each of the Government witnesses
have a reason to lie, that I did not intently mislead any
investor and that the Governments attempt to make me look
like the ringmaster is not true.
March 31, 2014, Murphy asked Holloway if he would agree to a
second psychological evaluation. Holloway wrote back:
It has been my written and verbal direction since retaining
you to seek out the truth that would prove same and get
closure for me and my family.
Instead it seems evident that your intent is to take the easy
road, try to prove me insane, dump me and go on with your law
practice. After multiple emails and verbal instructions to
cease the insults, and personal attacks yet you continue. I
will ask you one more time to stop the attacks. It is
apparent that you have no interest in defending me . . .
spending 7 months doing nothing to same. If you want out . .
. get me a large delay and i will figure it out myself. Its
apparent the person who is afraid of the Prosecutor is you
Answer is again no . . . Had i known you were going to this
focused on trying to ambush and almost extort me into saying
uncle i would have never agreed. Had i known the background
of Bone whos deal is criminal insane plea . . . same
same day, Murphy filed the motion seeking a hearing on the
April 4, 2014, a federal magistrate judge held a status
hearing. After reviewing Murphy's motion on competency
and hearing from both parties, the judge issued an Order for
the court-ordered competency evaluation caused even more
friction between Holloway and Murphy. Holloway was adamant
that the evaluation not be scheduled over a weekend and that
he be given several weeks' notice so that he could take
the best flights. He also pointed out to Murphy that the
prosecutors scheduled the evaluation over Easter weekend, and
asked Murphy to request different dates. Murphy followed up
with prosecutors on Holloway's request and later informed
Holloway that they "refuse to re-schedule the competency
examination dates, even though I reminded them it is Easter
weekend. They are making arrangements to pay your air fare to
come here for the examination."
Noel Gardner evaluated Holloway on April 19, 2014. He
determined that Holloway has "situational[ly] paranoid
interpersonal perspectives" and has a "narcissistic
personality makeup." He also concluded that Holloway has
a "very mild form of persistent hypomania." But
despite these conditions, Dr. Garner concluded that Holloway
"has the capacity but not the willingness to carefully
assess [his] legal options" and that Holloway did not
have a "mental disease or defect" that would render
him incompetent "to stand trial."
3, 2014, the district court held another status conference
hearing. The district court invited Holloway to
address the issue of his competency. Holloway stated:
Well, Your Honor, I trust the direction that-that my counsel
is taking. I certainly feel no lack of competency in going to
court and telling the real story, and have no lack of
confidence that when we get there we're going to be able
to prove innocence. So I'm not-I'm not-I certainly
don't want to be-you know, I'm ready to go. I mean I
have-I have no desire to (unintelligible) negate my right to
be able to have a fair trial. So I'm sure we don't
want to go down that road.
hearing, Holloway also told the district court that he had
not seen a copy of Dr. Bone's evaluation, although he
asked for a copy, and that he learned of the results from Dr.
Garner's evaluation during the hearing. The district
court eventually found that Holloway was competent to stand
after the hearing, Holloway expressed his anger regarding
Murphy's focus on competency. Holloway emailed Murphy
The competency fiasco is not behind us . . . It was your tact
not mine. As far as i am concerned and it is agreed by a
great deal of people is we have wasted 1 year of valuable
time based on the understanding that you do not understand
what the make up of a complex man is. You from day one
convicted me and really do believe what the prosecutors have.
You have emphatically stressed that you think i am guilty and
mentally ill and argued with the judge that Gardner was wrong
..... so it is not behind us.
I am not mad at you but its not behind us. You humiliated
your client by going outside of my instructions and ...