UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Criminal Action No. 04-543 (BAH)
CHARLES E. HALL, Chief Judge Beryl A. Howell
Defendant.
MEMORANDUM AND ORDER
Pending before the Court is the defendant’s pro se Motion for an Indicative Ruling on a
Motion for Relief that is Barred by a Pending Appeal (“Def.’s Mot.”), ECF No. 276, which this
Court construes as a motion under Federal Rule of Civil Procedure 62.1(a), rather than under
Federal Rule of Criminal Procedure 37(a) as relied upon by the defendant, because the rules of
civil procedure apply to habeas cases such as this one. See Gonzalez v. Crosby, 545 U.S. 524,
529 (2005); United States v. Arrington, 763 F.3d 17, 22 (D.C. Cir. 2014) (applying Crosby’s
rationale to post-conviction civil proceedings under 28 U.S.C. § 2255). Federal Rule of Civil
Procedure 62.1 permits a district court, “[i]f a timely motion is made for relief that the court
lacks authority to grant because of an appeal that has been docketed and is pending,” to “defer
considering the motion,” “deny the motion,” or “state either that it would grant the motion if the
court of appeals remands for that purpose or that the motion raises a substantial issue,” FED. R.
CIV. P. 62.1(a).
This Court denied the defendant’s motion for a new trial in a Memorandum and Order,
United States v. Hall, No. 04-cr-543 (BAH), 2018 WL 6434772 (D.D.C. Dec. 7, 2018)
(addressing certain arguments), and, following an evidentiary hearing, in an oral ruling, see Min.
Entry (Dec. 13, 2018); Tr. of Evidentiary H’rg, Dec. 13, 2018 (“H’rg Tr.”) at 101:16–106:8, ECF 1 No. 275 (addressing remaining arguments). The defendant timely appealed, see Notice of
Appeal, ECF No. 268, and this Court issued a Certificate of Appealability, see Order (Jan. 23,
2019), ECF No. 273.
The defendant’s appeal is currently pending before the D.C. Circuit, see United States v.
Hall, 18-3092 (D.C. Cir. appeal docketed Dec. 31, 2018), and thus this Court no longer has
jurisdiction over the defendant’s case. See Griggs v. Provident Consumer Discount Co., 459
U.S. 56, 58 (1982) (per curiam) (noting that, as a general rule, “[t]he filing of a notice of appeal
is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and
divests the district court of its control over those aspects of the case involved in the appeal”);
United States v. DeFries, 129 F.3d 1293, 1302 (D.C. Cir. 1997) (per curiam).
Given this procedural posture, the defendant seeks only an indicative ruling. Although
the defendant couches his motion in rules of criminal rather than civil procedure, the Court
construes his motion as one made under Federal Rule of Civil Procedure 60(b)(1), (2), (3), or (6)
to reopen the judgment denying his habeas motion on the proffered ground of ineffective
assistance of counsel in his habeas proceedings. This motion is denied.
The specific bases for the defendant’s assertions that his attorney in his habeas
proceedings provided ineffective assistance of counsel are that this attorney: (1) overlooked or
otherwise failed to pursue what the defendant claims was “newly discovered” evidence and other
meritorious arguments the defendant made in his pro se motions and supplements, including
arguments made in a pro se Motion to Amend Pleadings as a Matter of Course or in the
Alternative by Leave of Court, ECF No. 229, which was denied as moot, with the parties’
agreement, in light of a later, counseled motion, see Min. Order (Dec. 13, 2017); Def.’s Mot. at
6–7 & n.16; (2) was operating under a conflict of interest, in part because the attorney agreed to
2 dismiss the defendant’s pro se Motion to Amend without adequate consultation with the
defendant, Def.’s Mot. at 6–7; and (3) failed to adequately prepare for an evidentiary hearing on
the defendant’s habeas motion because the attorney failed to subpoena an attorney, Marc
Sliffman, to testify regarding the defendant’s advice-of-counsel defense, id. at 7–9.
Although the defendant purports to focus his motion on the alleged ineffectiveness of the
attorney assisting him with his habeas proceeding, a review of his motion and supporting
documentation reveals that the defendant’s motion actually reflects another attempt to relitigate
the merits of his habeas case. That is, the arguments that the defendant accuses his counsel of
overlooking are, for the most part, arguments that this Court already considered and rejected in
denying his § 2255 motion.
For example, the defendant claims that “throughout [his] hearings and/or proceedings,
exculpatory evidence discovered after trial . . . fell short of being utilized by all defense counsels
of record,” id. at 2, and that his habeas counsel “actively represented conflicting interests when
he unilaterally dismissed [defendant’s] newly discovered documents proving actual innocence,”
id. at 6–7. Yet this purported “exculpatory evidence” and “newly discovered documents proving
actual innocence” relate to the defendant’s persistent argument, rejected both on direct appeal by
the D.C. Circuit and as grounds for habeas relief in this Court, that the defendant’s scheme to
“flip” residential properties did not qualify as bank fraud. See id. at 10–21 (listing various facts
and arguments regarding mortgage financing, federally insured financial institutions, and
whether the defendant’s conduct is properly considered bank fraud). The D.C. Circuit rejected
the defendant’s challenges to his bank fraud convictions on these grounds on direct appeal, see
United States v. Hall, 613 F.3d 249, 252–53 (D.C. Cir. 2010), and this Court rejected his
attempts to relitigate those convictions in a habeas proceeding, see Hall, 2018 WL 6434772, at
3 *4–5. Just as before, the defendant has failed to establish “how any intervening change of law or
other exceptional circumstance would allow him to relitigate this issue,” id. at *5.
Further, although the defendant argues that his habeas counsel was ineffective by not
calling a witness to testify at the evidentiary hearing, this Court’s resolution of the habeas
petition—which focused in part on whether the defendant’s trial counsel was ineffective for
failing to call or seek an advice-of-counsel instruction related to that same witness—explained in
detail why trial counsel had sound strategic reasons for failing to call this witness or to seek such
an instruction, and why the defendant had not established that he suffered prejudice as a result of
his trial counsel’s alleged failures. See H’rg Tr. at 103:1–105:23 (“[B]ased on what [the trial
counsel] said about the risks of calling Mr. Sliffman, the decision not to do so makes sound
sense.”). Those same risks, including the possibility that Mr.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Criminal Action No. 04-543 (BAH)
CHARLES E. HALL, Chief Judge Beryl A. Howell
Defendant.
MEMORANDUM AND ORDER
Pending before the Court is the defendant’s pro se Motion for an Indicative Ruling on a
Motion for Relief that is Barred by a Pending Appeal (“Def.’s Mot.”), ECF No. 276, which this
Court construes as a motion under Federal Rule of Civil Procedure 62.1(a), rather than under
Federal Rule of Criminal Procedure 37(a) as relied upon by the defendant, because the rules of
civil procedure apply to habeas cases such as this one. See Gonzalez v. Crosby, 545 U.S. 524,
529 (2005); United States v. Arrington, 763 F.3d 17, 22 (D.C. Cir. 2014) (applying Crosby’s
rationale to post-conviction civil proceedings under 28 U.S.C. § 2255). Federal Rule of Civil
Procedure 62.1 permits a district court, “[i]f a timely motion is made for relief that the court
lacks authority to grant because of an appeal that has been docketed and is pending,” to “defer
considering the motion,” “deny the motion,” or “state either that it would grant the motion if the
court of appeals remands for that purpose or that the motion raises a substantial issue,” FED. R.
CIV. P. 62.1(a).
This Court denied the defendant’s motion for a new trial in a Memorandum and Order,
United States v. Hall, No. 04-cr-543 (BAH), 2018 WL 6434772 (D.D.C. Dec. 7, 2018)
(addressing certain arguments), and, following an evidentiary hearing, in an oral ruling, see Min.
Entry (Dec. 13, 2018); Tr. of Evidentiary H’rg, Dec. 13, 2018 (“H’rg Tr.”) at 101:16–106:8, ECF 1 No. 275 (addressing remaining arguments). The defendant timely appealed, see Notice of
Appeal, ECF No. 268, and this Court issued a Certificate of Appealability, see Order (Jan. 23,
2019), ECF No. 273.
The defendant’s appeal is currently pending before the D.C. Circuit, see United States v.
Hall, 18-3092 (D.C. Cir. appeal docketed Dec. 31, 2018), and thus this Court no longer has
jurisdiction over the defendant’s case. See Griggs v. Provident Consumer Discount Co., 459
U.S. 56, 58 (1982) (per curiam) (noting that, as a general rule, “[t]he filing of a notice of appeal
is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and
divests the district court of its control over those aspects of the case involved in the appeal”);
United States v. DeFries, 129 F.3d 1293, 1302 (D.C. Cir. 1997) (per curiam).
Given this procedural posture, the defendant seeks only an indicative ruling. Although
the defendant couches his motion in rules of criminal rather than civil procedure, the Court
construes his motion as one made under Federal Rule of Civil Procedure 60(b)(1), (2), (3), or (6)
to reopen the judgment denying his habeas motion on the proffered ground of ineffective
assistance of counsel in his habeas proceedings. This motion is denied.
The specific bases for the defendant’s assertions that his attorney in his habeas
proceedings provided ineffective assistance of counsel are that this attorney: (1) overlooked or
otherwise failed to pursue what the defendant claims was “newly discovered” evidence and other
meritorious arguments the defendant made in his pro se motions and supplements, including
arguments made in a pro se Motion to Amend Pleadings as a Matter of Course or in the
Alternative by Leave of Court, ECF No. 229, which was denied as moot, with the parties’
agreement, in light of a later, counseled motion, see Min. Order (Dec. 13, 2017); Def.’s Mot. at
6–7 & n.16; (2) was operating under a conflict of interest, in part because the attorney agreed to
2 dismiss the defendant’s pro se Motion to Amend without adequate consultation with the
defendant, Def.’s Mot. at 6–7; and (3) failed to adequately prepare for an evidentiary hearing on
the defendant’s habeas motion because the attorney failed to subpoena an attorney, Marc
Sliffman, to testify regarding the defendant’s advice-of-counsel defense, id. at 7–9.
Although the defendant purports to focus his motion on the alleged ineffectiveness of the
attorney assisting him with his habeas proceeding, a review of his motion and supporting
documentation reveals that the defendant’s motion actually reflects another attempt to relitigate
the merits of his habeas case. That is, the arguments that the defendant accuses his counsel of
overlooking are, for the most part, arguments that this Court already considered and rejected in
denying his § 2255 motion.
For example, the defendant claims that “throughout [his] hearings and/or proceedings,
exculpatory evidence discovered after trial . . . fell short of being utilized by all defense counsels
of record,” id. at 2, and that his habeas counsel “actively represented conflicting interests when
he unilaterally dismissed [defendant’s] newly discovered documents proving actual innocence,”
id. at 6–7. Yet this purported “exculpatory evidence” and “newly discovered documents proving
actual innocence” relate to the defendant’s persistent argument, rejected both on direct appeal by
the D.C. Circuit and as grounds for habeas relief in this Court, that the defendant’s scheme to
“flip” residential properties did not qualify as bank fraud. See id. at 10–21 (listing various facts
and arguments regarding mortgage financing, federally insured financial institutions, and
whether the defendant’s conduct is properly considered bank fraud). The D.C. Circuit rejected
the defendant’s challenges to his bank fraud convictions on these grounds on direct appeal, see
United States v. Hall, 613 F.3d 249, 252–53 (D.C. Cir. 2010), and this Court rejected his
attempts to relitigate those convictions in a habeas proceeding, see Hall, 2018 WL 6434772, at
3 *4–5. Just as before, the defendant has failed to establish “how any intervening change of law or
other exceptional circumstance would allow him to relitigate this issue,” id. at *5.
Further, although the defendant argues that his habeas counsel was ineffective by not
calling a witness to testify at the evidentiary hearing, this Court’s resolution of the habeas
petition—which focused in part on whether the defendant’s trial counsel was ineffective for
failing to call or seek an advice-of-counsel instruction related to that same witness—explained in
detail why trial counsel had sound strategic reasons for failing to call this witness or to seek such
an instruction, and why the defendant had not established that he suffered prejudice as a result of
his trial counsel’s alleged failures. See H’rg Tr. at 103:1–105:23 (“[B]ased on what [the trial
counsel] said about the risks of calling Mr. Sliffman, the decision not to do so makes sound
sense.”). Those same risks, including the possibility that Mr. Sliffman may have been deemed a
co-conspirator, foreclosing an advice-of-counsel defense, id. at 105:3–11, or that he would have
deflected any criminal liability onto the defendant, id. at 105:12–18, apply equally to the
defendant’s habeas attorney’s failure to call this witness to testify at the evidentiary hearing. In
addition, the defendant’s own testimony at trial and in his habeas hearing established that he did
not tell Mr. Sliffman all of the material facts pertinent to the activities in question, negating the
viability of an advice-of-counsel defense. Id. at 105:19–23.
Accordingly, any Rule 60(b) motion made on the grounds the defendant raises must be
denied, because a motion that attacks the court’s prior resolution of a § 2255 claim on the merits
is “similar enough” to a habeas motion that the district court, under 28 U.S.C. § 2244 and 28
U.S.C. § 2255(h), may not consider the motion without prior authorization from the court of
appeals. Crosby, 545 U.S. at 531–32 & n.5 (noting that “an attack based on . . . [defendant’s]
habeas counsel’s omissions . . . ordinarily does not go to the integrity of the proceedings, but in
4 effect asks for a second chance to have the merits determined favorably” (citation omitted));
Arrington, 763 F.3d at 22–24; United States v. Washington, 653 F.3d 1057, 1065 (9th Cir. 2011)
(“Because the gravamen of [defendant’s] assertions go to the merits of his conviction, his Rule
60(b) motion is, in fact, a § 2255 motion in disguise.”). With the exception of faulting his
habeas attorney for failing to call a witness at an evidentiary hearing, the defendant’s reasons for
seeking to reopen the judgment in his habeas case are merits-based challenges to this Court’s
previous rulings on those same arguments. Those challenges, as well as the defendant’s motion
to replace his current court-appointed attorney, which motion is included in the documents filed
in this Court, see ECF No. 276 at 32–37, are most appropriately addressed in the D.C. Circuit,
where the defendant’s appeal remains pending. See United States v. All Assets Held in Account
No. 80020796, No. 13-cv-1832 (JDB), 2017 WL 6886092, at *2 (D.D.C. Nov. 15, 2017) (“There
is little indication the drafters of Rule 62.1 intended it to be used . . . to ask a district court to
issue an indicative ruling reconsidering the same question being reviewed by the court of
appeals.” (citation and internal alterations omitted)).
Accordingly, it is hereby
ORDERED that the defendant’s pro se Motion for an Indicative Ruling is DENIED.
SO ORDERED.
Date: May 31, 2019
_______________________ BERYL A. HOWELL Chief Judge