NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0574n.06
Case Nos. 15-3900, 15-3901
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Oct 10, 2017 DEBORAH S. HUNT, Clerk LANCE K. POULSEN, ) ) Petitioner-Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE SOUTHERN DISTRICT OF UNITED STATES OF AMERICA, ) OHIO ) Respondent-Appellee. ) ) ____________________________________ )
BEFORE: KEITH, McKEAGUE, and STRANCH, Circuit Judges.
DAMON J. KEITH, Circuit Judge. This consolidated appeal arises from the convictions
of Appellant Lance K. Poulsen (hereinafter “Poulsen” or “Appellant”) in the United States
District Court for the Southern District of Ohio in two separate cases involving securities fraud1
and obstruction of justice.2 Poulsen now challenges the district court’s dismissal of his motions
to vacate his convictions pursuant to 28 U.S.C. § 2255, the dismissal of his constitutional claims
1 In the securities fraud case, Poulsen was found guilty of: (1) conspiracy, in violation of 18 U.S.C. § 371; (2) six counts of securities fraud, in violation of 15 U.S.C. §§ 77q(a), 77x; (3) wire fraud, in violation of 18 U.S.C. § 1343; (4) conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956; and (5) three counts of concealment money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i), after entering a plea of not guilty to all counts of the superseding indictment. 2 In the obstruction of justice case, Poulsen was found guilty of: (1) conspiracy, in violation of 18 U.S.C. § 371; (2) witness tampering, in violation of 18 U.S.C. § 1512(b)(2)(A); (3) witness tampering by influencing testimony, in violation of 18 U.S.C. § 1512(b)(1) and (4) obstruction of justice, in violation of 18 U.S.C. § 1503(a), after entering a plea of not guilty to all counts of the second superseding indictment. Case Nos. 15-3900/3901, Poulsen v. United States
of prosecutorial misconduct due to procedural default, and the denial of his request for discovery
and an evidentiary hearing on his claim of ineffective assistance of counsel. Upon review of the
district court’s decision, we affirm.
I.
On May 19, 2006, a grand jury returned a sixty-count indictment charging Poulsen and six
co-conspirators with fraudulent activity arising from their involvement with National Century
Financial Enterprises (“NCFE”), a large healthcare finance company. Poulsen co-founded
NCFE in 1990 and later served as the entity’s president, chairman, and chief executive officer.
A detailed account of the fraudulent scheme underlying Poulsen’s convictions can be found in
this court’s opinion issued on direct appeal. See United States v. Poulsen, 655 F.3d 492 (6th Cir.
2011). The pertinent procedural background is as follows.
After the return of the sixty-count indictment, arrest warrants were issued for the defendants
and Poulsen was arrested on May 22, 2006. Poulsen retained attorney Thomas Tyack (“Tyack”)
to represent him in the securities fraud case. A grand jury subsequently returned a second
indictment charging Poulsen and a co-defendant with obstruction of justice and witness
tampering. Following the return of the indictment for obstruction, the district court granted
Tyack’s motion to withdraw as counsel for Poulsen, and Peter Anderson and William Terpening
were retained as counsel in Tyack’s stead. On July 10, 2007, a grand jury returned the operative
superseding indictment in the securities fraud case, which also added a seventh co-defendant.
Prior to trial in the securities case, Poulsen moved to sever his case from those of his co-
defendants to allow his newly-retained counsel sufficient time to prepare for trial. Poulsen’s
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motion was granted and a trial date was set for August 4, 2008.3 In the interim, Poulsen was
tried and convicted in the related obstruction case and sentenced to 120 months of incarceration.
After resolution of pre-trial motions, the securities fraud trial began in October of 2008. At
the close of the government’s evidence, Poulsen moved for judgment of acquittal on all counts of
the superseding indictment. The district court denied the motion. Defense counsel proceeded
with its presentation of evidence, which included Poulsen’s testimony. At the close of all of the
evidence, the district court denied Poulsen’s renewed motion for judgment of acquittal. On
October 31, 2008, a jury found Poulsen guilty on all counts. Poulsen, through counsel, filed a
post-trial motion for acquittal or a new trial alleging insufficiency of the government’s evidence.
The district court denied the motion, finding that, with respect to the money laundering counts:
The evidence also supports a conclusion that the transaction was designed to disguise the nature, location, source, ownership or control of the proceeds. Even though the June 5, 2001 wires to HCCA/HMA and its affiliates were unsupported by any accounts receivable purchases, a normal receivables purchase report was prepared for the wires. A receivables purchase report[] was supposed to represent funding sent out in exchange for the purchase of eligible accounts receivable. Accordingly, the use of the purchase report also served to hide the fact that the wires were actually pure conversion of investor funds to satisfy the debts of a third-party company in which Poulsen had a financial stake. Therefore, the Court finds that Poulsen’s money laundering conviction was based on sufficient evidence and was not against the manifest weight of the evidence.
In March of 2009, Poulsen was sentenced to 360 months of incarceration, to run concurrently
with the sentence imposed in the obstruction case, followed by three years of supervised release
and restitution in the amount of over two billion dollars. Poulsen timely appealed.
On appeal, Poulsen argued that, in the obstruction case, the district court erred in:
(1) declining to provide the jury an entrapment instruction; (2) denying his motion to suppress
wiretap evidence; and (3) allowing into evidence the amount of loss for consideration at
3 Poulsen later moved to continue the trial to a later date through a written motion, which the district court denied. Subsequently, Poulsen requested a continuance once more, and the district court granted Poulsen a two-month continuance.
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sentencing. See Poulsen, 655 F.3d at 498. He further argued, in relation to the securities fraud
case, the district court: (1) erred in denying his motion to transfer venue; (2) improperly admitted
evidence from the obstruction case; (3) erred in allowing into evidence the amount of loss
without also admitting evidence of other causes of that loss; and (4) erred in imposing a sentence
that was procedurally and substantively unreasonable. See id. We affirmed the district court’s
decision with respect to all of Poulsen’s claims. Id.
In 2010 and 2011, this court reviewed the money laundering convictions of Poulsen’s co-
defendants on direct appeal, on the contention that the Supreme Court’s decision in Cuellar v.
United States, 553 U.S. 550 (2008) rendered reversal appropriate. In Cuellar, the Court
distinguished the interpretation of “design,” which would require “proof that the purpose—not
merely effect—of the trans[action] was to conceal or disguise a listed attribute,” from the
interpretation applied by the Fifth Circuit, which would allow the government to satisfy its
burden by showing that concealment or disguise was used to structure or facilitate an alternate
unlawful purpose. Id. at 565-67. Finding that Cuellar established a heightened mens rea
requirement, this court reversed the convictions of Poulsen’s co-defendants on the ground that
the government failed to proffer sufficient evidence that “concealment” was also a purpose for
conducting the fraudulent transaction, rather than just the mechanism utilized to accomplish the
offense. See, e.g., United States v. Faulkenberry, 614 F.3d 573, 585-88 (6th Cir. 2010); United
States v. Ayers, 386 F. App’x 558, 560, 564-66 (6th Cir. 2010); United States v. Dierker, 417 F.
App’x 515, 516, 521-22 (6th Cir. 2011); United States v. Speer, 419 F. App’x 562, 563, 569-70
(6th Cir. 2011).
In 2013, Poulsen filed motions to vacate his convictions in both the securities and obstruction
cases, pursuant to 28 U.S.C. § 2255. In the securities case, Poulsen argued that in light of the
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Supreme Court’s decision in Cuellar, his convictions for money laundering should also be
reversed because they were based on an erroneous interpretation of the mens rea element of the
offense and violated due process. Next, he alleged ineffective assistance of counsel for his
counsel’s failure to raise a Cuellar-based defense. Last, Poulsen argued that Tyack’s withdrawal
deprived him of his choice of counsel in violation of the Sixth Amendment and contended that
the government engaged in prosecutorial misconduct in violation of the Due Process Clause.4
Poulsen also filed a motion for partial summary judgment to vacate his conviction for money
laundering and a motion for discovery. The district court, at the recommendation of a magistrate
judge, denied the summary judgment motion and request for discovery and an evidentiary
hearing.
Subsequently, the court adopted the recommendation of a magistrate judge to deny Poulsen’s
§ 2255 motions. Poulsen’s objections to the magistrate judge’s recommendations were
overruled. The district court found that Poulsen’s counsel did raise the substantive issue
addressed in Cuellar—that the government failed to demonstrate the requisite showing to satisfy
the mens rea element of the offense—in the post-trial motion for acquittal or a new trial, and
ultimately concluded that Poulsen’s claim of ineffective assistance of counsel was meritless
because, even post-Cuellar, the government’s evidence was sufficient to sustain Poulsen’s
convictions.5 Further, the district court found that Poulsen failed to show “good cause” for his
request for discovery. Last, the district court found that Poulsen was not entitled to an
4 Poulsen’s motion to vacate in the obstruction case was premised on the same contentions alleged in the § 2255 motion relating to the securities fraud case. 5 Defense counsel argued in Poulsen’s motion for judgment of acquittal or a new trial, that: “[t]he evidence was [] insufficient to show that Mr. Poulsen knew that the funds were proceeds of unlawful activity or deliberately attempted to disguise the source of any funds transferred, because Mr. Poulsen clearly believed he was operating within the parameters of the governing documents.”
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evidentiary hearing where it was clear from the motion and evidentiary record that he was not
entitled to relief.
II.
Poulsen first contends that the district court erred in denying his claims of ineffective
assistance of counsel. This court reviews claims of ineffective assistance of counsel brought
under 28 U.S.C. § 2255, which raise a mixed question of law and fact, de novo. See United
States v. Allen, 254 F. App’x 475, 477 (6th Cir. 2007); Strickland v. Washington, 466 U.S. 668,
698 (1984). The Supreme Court in Strickland developed a two-prong analysis, which requires
the court to consider both the alleged deficient performance and any prejudicial effect that
performance has on the outcome of the proceedings. See Lockhart v. Fretwell, 506 U.S. 364,
369 (1993) (citing Strickland, 466 U.S. at 687). In order to demonstrate that relief from a
criminal conviction is warranted, a defendant must show counsel’s performance was
“professionally unreasonable,” Strickland, 466 U.S. at 691, and “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. In addition, “a criminal defendant alleging prejudice must show ‘that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.’” Lockhart, 506 U.S. at 369 (quoting Strickland, 466 U.S. at 687).
Second, Poulsen challenges the district court’s dismissal of his prosecutorial misconduct
claims for procedural default. We review the district court’s conclusion that a petitioner’s
habeas claim is procedurally defaulted de novo. See Leberry v. Howerton, 583 F. App’x 497,
499 (6th Cir. 2014), as amended on denial of reh’g (Nov. 6, 2014) (citations omitted). When a
defendant fails to raise an issue at trial or on direct appeal, that issue is generally waived. See
Huff v. United States, 734 F.3d 600, 605–06 (6th Cir. 2013). A claim that would otherwise be
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waived may be raised through a collateral attack under § 2255 if a defendant “can demonstrate
cause and prejudice to excuse his default.” Id. at 606. “Ineffective assistance of counsel can
constitute cause for a procedural default.” Id.
Last, Poulsen contends that he was entitled to conduct discovery and proceed with an
evidentiary hearing, and the district court’s denial of his requests to do so was an abuse of the
court’s discretion. Pursuant to § 2255, “a district court may authorize a movant to conduct
discovery upon a showing of good cause”—establishing through “specific allegations” that there
is “reason to believe that [the movant] may, if the facts are fully developed, be able to
demonstrate entitlement to relief.” Cornell v. United States, 472 F. App’x 352, 354 (6th Cir.
2012).
A court’s denial of an evidentiary hearing is reviewed for abuse of discretion. See Ray v.
United States, 721 F.3d 758, 761 (6th Cir. 2013). An evidentiary hearing is mandatory “unless
the record conclusively shows that the petitioner is entitled to no relief.” Pola v. United States,
778 F.3d 525, 532 (6th Cir. 2015) (internal quotations and citations omitted). However, a
hearing need not be conducted “when a petitioner’s claims cannot be accepted as true because
they are contradicted by the record, inherently incredible, or [are] conclusions rather than
statements of fact.” Ray, 721 F.3d at 761 (internal quotation and citations omitted).
On September 8, 2015, the district court granted Poulsen’s certificate of appealability
(“COA”) on the issues of (1) whether Poulsen was denied effective assistance of counsel; and
(2) whether the district court erred in denying his claims as procedurally defaulted. This court
expanded the COA to include: (3) whether the district court erred in denying his request for
discovery and an evidentiary hearing on his claim of ineffective assistance of counsel. We
address each of Poulsen’s claims in turn.
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III.
A.
Poulsen’s claim of ineffective assistance of counsel stems from the failure of his newly-
retained counsel to raise a defense to his money laundering convictions based on the Supreme
Court’s decision in Cuellar, decided four months before Poulsen’s securities fraud trial began.
The district court adopted the recommendation of a magistrate judge, which distinguished, at
length, the facts alleged against Poulsen and those underlying the convictions in Cuellar, and
Poulsen’s co-defendants’ cases, and concluded that the evidence presented against Poulsen was
sufficient to establish the designed-to-conceal element of the money laundering offense. In other
words, the magistrate judge found that the addition of Cuellar to Poulsen’s defense would not
have affected the outcome of the proceedings because the government presented sufficient
evidence to satisfy the mens rea interpretation articulated in Cuellar. As a result, the magistrate
judge found that counsel’s omission of a direct reference to Cuellar was reasonable.
Subsequently, the district court adopted the recommendation, stating that the court “. . . was
unpersuaded that . . . the prosecution would have abandoned the money laundering-related
charges asserted against Petitioner if only his attorneys had expressly referred to Cuellar,” or that
the convictions would have been reversed on appeal.
Moreover, the district court found that Poulsen’s counsel had, in fact, raised the substantive
issue addressed in Cuellar in its motion for judgment of acquittal and for a new trial, although
not by way of direct reference. Accordingly, the court denied Poulsen’s motions to vacate for
ineffective assistance of counsel, concluding that Poulsen failed to establish either the deficiency
prong or the prejudice prong of the Strickland standard.
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To establish ineffective assistance of counsel, Poulsen must satisfy Strickland’s two-prong
analysis: the performance prong, which requires a petitioner “to show that h[is] attorney’s
representation fell below an objective standard of reasonableness” and “the prejudice prong,
which requires the petitioner to demonstrate that there exists a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different[.]”
Ballard v. United States, 400 F.3d 404, 407 (6th Cir. 2005). Deficient performance is
determined by “an objective standard of reasonableness.” United States v. Arny, 831 F.3d 725,
731 (6th Cir. 2016). The reviewing court begins its consideration of the reasonableness of
counsel’s performance with a “strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” O’Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir.
1994) (quoting Strickland, 466 U.S. at 689). Working from this presumption, the court should
resist “the temptation to rely on hindsight . . . in the context of ineffective assistance claims.”
Carson v. United States, 3 F. App’x 321, 324 (6th Cir. 2001); Strickland, 466 U.S. at 689
(“A fair assessment of attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.”).
Here, the error alleged is counsel’s failure to specifically argue that the government’s
evidence was insufficient post-Cuellar. Poulsen contends this omission was objectively
unreasonable, particularly where the inclusion of a Cuellar-based argument effectuated the
vacatur of his co-defendants’ convictions. While the success of Poulsen’s co-defendants may be
relevant, placing too much emphasis on it would be tantamount to engaging in the precise
reliance on hindsight that the Court advised against in Strickland. We conclude, in accordance
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with the district court’s finding, that counsel’s performance, notwithstanding the omission of a
Cuellar-based defense, was within the “wide range of reasonable professional assistance.” Id.
Poulsen also asserts that counsel’s failure to raise Cuellar demonstrates that counsel did not
thoroughly assess the state of the relevant case law at the time of Poulsen’s trial, rendering
performance deficient. Contrary to the district court’s determination regarding counsel’s
awareness of the Supreme Court’s decision in Cuellar, we find that the record—most notably,
the filing of Supplemental Authority on appeal—supports the inference that Poulsen’s counsel
did not become aware of Cuellar until the convictions of Poulsen’s co-defendants were vacated.
Nevertheless, we find that counsel’s awareness of Cuellar at trial is not dispositive of the
reasonableness of counsel’s performance and affirm the district court’s determination regarding
deficient performance. See City Mgmt. Corp. v. U.S. Chem. Co., 43 F.3d 244, 251 (6th Cir.
1994) (affirming on different grounds than those relied on by the district court).
In support of his contention, Poulsen directs the court’s attention to the result in Ballard, 400
F.3d at 409, where we found that, collectively, appellate counsel’s failure to raise an Apprendi or
Dale defense, failure to thoroughly review the trial transcripts, and failure to utilize the appellate
briefs of his co-defendant constituted deficient performance. In Hicks, however, we recognized
that an assessment of reasonableness also includes a consideration of the strength of the legal
argument omitted. See Hicks v. United States, 258 F. App’x 850, 852-54 (6th Cir. 2007). “[I]t
can hardly be doubted that defense lawyers have a constitutional obligation to investigate and
understand the law. . . .” Joseph v. Coyle, 469 F.3d 441, 460 (6th Cir. 2006) (emphasis omitted).
However, as the district court held, where Poulsen’s conviction did not violate the newly
articulated interpretation in Cuellar, counsel’s failure to raise it did not render counsel’s
performance deficient. This analysis is also supported by the Eleventh Circuit’s decision in
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Magluta v. United States, 660 F. App’x 803 (11th Cir. 2016). Analyzing the exact issue raised
before us on appeal, the Eleventh Circuit concluded that:
the [defendant’s] attorney did not render deficient representation by failing to raise a Cuellar argument given that any such argument would have been futile in light of the evidence adduced at trial, as set out above. Thus, [the defendant’s] lawyer’s performance did not fall below objectively reasonable standards. . . Moreover, because a Cuellar-based argument would have failed, [the defendant] has not carried his burden to show prejudice.
Magluta, 660 F. App’x at 809.
We find that the alleged error at issue is also distinguishable from Joseph, cited by Poulsen in
support of his deficient performance argument. Unlike counsel’s omission in this case, the court
in Joseph concluded, where trial counsel failed to comprehend “perhaps the most basic aspect of
representing a capital defendant,” and failed to conduct “minimal case research,” among other
shortcomings, counsel’s performance fell below both the objective standard of reasonableness
and the standard of performance articulated in the ABA Guidelines for performance of counsel in
death penalty cases. Joseph, 469 F.3d at 460–61. As it pertains to Poulsen, the record does not
support a finding that counsel’s performance came anywhere close to the deficiency of
performance rendered in Joseph, where counsel “failed to achieve a rudimentary understanding
of the well-settled law,” id., 469 F.3d at 460 (citation omitted), and failed to obtain a basic
understanding of the offense for which a defendant, on death row, was convicted. At the time of
trial, Cuellar was not well-established case law in this Circuit, at least with respect to the
transaction provision of the money laundering statute. Therefore, the omission of a Cuellar-
based argument does not indicate that Poulsen’s counsel lacked the requisite understanding of
the money laundering offense to render effective assistance. See O’Hara, 24 F.3d at 828 (“[T]he
standard to which an attorney is held is not that of the most astute counsel, but rather that of
‘reasonably effective assistance.’”).
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Once Poulsen’s counsel became aware that Cuellar had been successfully argued by
Poulsen’s co-defendants’ counsel, a Cuellar-based argument was raised immediately in a
supplemental filing. Upon consideration of the merits of the Cuellar argument by the magistrate
judge, the district court found that Poulsen’s conviction did not run afoul of Cuellar. Thus, as
we determined in Hicks, and the Eleventh Circuit concluded in Magluta, after assessing the
strength of defense counsel’s Cuellar argument, the district court found that the omission of
Cuellar did not render counsel’s performance deficient because the convictions did not violate
Cuellar’s new interpretation of the mens rea element of the money laundering offense. On the
unique facts of this case, the record reflects that Poulsen’s counsel presented an objectively
reasonable defense to the money laundering offense, notwithstanding counsel’s omitted citation
to Cuellar. See Strickland, 466 U.S. at 689 (“There are countless ways to provide effective
assistance in any given case.”). Accordingly, upon a narrow and factually intensive review of
the performance rendered by trial counsel, we are not persuaded that counsel’s omission of
Cuellar was an error “so serious that counsel was not functioning as the counsel guaranteed the
defendant by the Sixth Amendment.” Id. at 687.
Prejudice under Strickland requires a showing of “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014).
Upon review of the lower court’s decision, we notice that the district court did not expressly
address whether Poulsen demonstrated a “reasonable probability” that, had counsel raised
Cuellar at trial¸ the jury would have had a reasonable doubt regarding Poulsen’s guilt and the
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outcome of the proceedings would have been different. See Strickland, 466 U.S. at 695. The
district court found, notwithstanding the mens rea requirement articulated by the Court decision
in Cuellar, that the evidence was sufficient to sustain Poulsen’s conviction for money
laundering. However, the pertinent question with respect to a determination of prejudice is not
one of sufficiency. The prejudice prong of Strickland requires a judicial assessment of the
fairness of the proceedings under the Sixth Amendment. Walker v. Hoffner, 534 F. App’x 406,
412 (6th Cir. 2013) (“[T]he standard has always been concerned with the probability of a
different result based on the fairness of the proceeding.”). The words “reasonable probability”
are absent from the district court’s articulation of the Strickland standard and its analysis of
Poulsen’s claims, and as a result, we are unable to clearly discern from the record whether the
district court applied the appropriate prejudice analysis.
Nevertheless, our review in this case is de novo and we have similarly determined that
Poulsen has failed to rebut the presumption that his counsel’s performance was objectively
reasonable. Accordingly, we need not decide the prejudice prong on appellate review nor
remand for further clarification because Poulsen cannot satisfy the first prong of Strickland. The
district court’s determination that Poulsen failed to satisfy the Strickland test for ineffective
assistance of counsel is affirmed.
B.
Next, Poulsen challenges the district court’s finding that his constitutional claims of
prosecutorial misconduct were barred by procedural default. Generally, the procedural default
doctrine provides “that claims not raised on direct appeal may not be raised on collateral review
unless the petitioner shows cause and prejudice,” or actual innocence. Massaro v. United States,
538 U.S. 500, 504 (2003). In order to demonstrate cause and prejudice to excuse default, a
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prisoner must ordinarily “show that some objective factor external to the defense impeded
counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478,
488 (1986).
On appeal, Poulsen claims that the government’s misconduct and interference with the
proceeding caused the default of his Fifth and Sixth Amendment claims alleging prosecutorial
interference with his due process right to a fair criminal proceeding and his right to counsel of
his choice. Accordingly, we must first determine whether the alleged prosecutorial misconduct
constitutes “cause and prejudice” to justify the procedural default.
Poulsen cites Murray for the proposition that “interference by officials” is one way the Court
provided for petitioners to demonstrate cause and prejudice to justify a procedural default. Id.
Poulsen argues the “government[’s] action involving alleged misconduct and interference” and
“overall pattern of suspect win-at-all costs pre-trial and trial tactics” was the cause and prejudice
for counsel’s failure to timely raise his constitutional claims. Under this logic, the court must
infer that the alleged misconduct has been an existing fixture in this case since the pre-trial stage
of the proceedings, allowing Poulsen’s counsel ample time to assess the cumulative actions of
the government and their effects in sufficient time to present any claim of misconduct by direct
appeal. Poulsen contends, but cites no legal authority in support of his contention that
“interference by officials” or prosecutorial misconduct can be analogized to the inherent cause
and prejudice associated with a claim of ineffective assistance of trial counsel.6 Thus, where
Poulsen has failed to demonstrate the requisite cause or prejudice excusing the default, we affirm
the district court’s finding that Poulsen’s constitutional claims were procedurally defaulted.
6 We see no conflict between the district court’s determination that Poulsen’s counsel “knew” of the alleged misconduct at the time of trial and was required to raise any claim of misconduct by direct appeal, and the Court’s holding in Massaro, which speaks with particularity to the unique qualities of a claim of ineffective assistance of counsel.
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C.
This court granted an expansion of the district court’s certificate of appealability to
include the question of whether Poulsen was improperly denied discovery and an evidentiary
hearing with respect only to “his ineffective-assistance-of-counsel claim.” We will limit our review
accordingly.
Courts have the discretion to grant discovery in collateral challenges upon a showing of
“good cause” under Rule 6 of the Rules Governing 28 U.S.C. § 2255 cases. See Cornell, 472 F.
App’x at 354. “Good cause is established where specific allegations show reason to believe that
the movant may, if the facts are fully developed, be able to demonstrate entitlement to relief.”
Id. (quoting Bracy v. Gramley, 520 U.S. 899, 908–09 (1997)) (internal quotations omitted).
As the government suggests in its brief, we are unable to locate in the record any
indication that a request for discovery or an evidentiary hearing was ever explicitly made by
Poulsen with respect to his ineffective assistance of counsel claim. However, assuming that
Poulsen’s general request for discovery and an evidentiary hearing encompassed his ineffective
assistance claim, he has still failed to demonstrate the requisite “good cause.”
Poulsen alleges that “numerous factual questions” remain concerning his claim of
ineffective assistance of counsel based on counsel’s failure to raise a Cuellar-based defense.
However, Poulsen fails to specifically allege what facts would enable him to demonstrate that he
is entitled to relief, if he was permitted to conduct discovery. Besides counsel’s subjective
awareness of Cuellar, which we have already determined is not dispositive of the reasonableness
of counsel’s performance, the court knows of no other fact that would be revealed through
discovery, to support Poulsen’s allegation that counsel’s omission of Cuellar constituted
deficient performance. Poulsen is correct in his assertion that he does not carry the burden to
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demonstrate what specific evidence might be obtained through discovery; however, he must
demonstrate that there is reason to believe that, if the facts were fully developed through
discovery, he would be entitled to relief. Because the failure to raise Cuellar did not render
counsel’s performance deficient, Poulsen cannot show, even if the facts were fully developed
through discovery, that his counsel was ineffective. Therefore, the trial court did not abuse its
discretion by denying discovery with respect to the ineffective assistance claim.
Although we apply a different standard of review to the district court’s denial of an
evidentiary hearing, the outcome of our review of the district court’s denial of an evidentiary
hearing is the same. We find no abuse of discretion. See Pola, 778 F.3d at 532 (“The
evidentiary hearing is mandatory unless “the record conclusively shows that the petitioner is
entitled to no relief.” (internal citations and quotations omitted)); id. at 534 (petitioner was
entitled to a hearing where “there is a material factual disagreement that could be resolved at an
evidentiary hearing.”) (emphasis added). Here, Poulsen’s allegations are insufficient to convince
us that, even on a fully developed factual record, he would be able to prove Strickland’s deficient
performance prong. As a result, we find conclusively, on this record, that Poulsen is not entitled
to the relief sought in his §2255 motions alleging ineffective assistance of counsel. Accordingly,
we affirm the district court’s denial of an evidentiary hearing.
IV.
For the reasons set forth in this opinion, the district court’s judgment is affirmed.
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