United States v. Prasad

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 19, 2025
• Docket: 23-1968
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 19 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-1968 D.C. Nos. Plaintiff - Appellee, 3:18-cr-00368-CRB-1; 3:22-cv-01230-CRB v. MEMORANDUM* ABHIJIT PRASAD,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding

Submitted September 17, 2025** San Francisco, California

Before: HAMILTON, R. NELSON, and BUMATAY, Circuit Judges.***

Defendant Abhijit Prasad appeals the district court’s denial of his motion to

vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 due to ineffective

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable David F. Hamilton, United States Circuit Judge for the Court of Appeals, 7th Circuit, sitting by designation. assistance of counsel. Defendant also requests that this court expand his certificate

of appealability (“COA”) so he can raise several other collateral challenges to his

conviction. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We affirm the

district court and deny Defendant’s request for an expansion of his COA.

We review the denial of a 28 U.S.C. § 2255 motion de novo. United States v.

Rodriguez, 49 F.4th 1205, 1211 (9th Cir. 2022). We review the district court’s

factual findings for clear error. United States v. Avery, 719 F.3d 1080, 1082 (9th

Cir. 2013).

1. Prasad’s claim of ineffective assistance of appellate counsel does not excuse

his procedural default. See Bousley v. United States, 523 U.S. 614, 621 (1998). To

show ineffective assistance of counsel, Prasad “must show that counsel’s advice fell

below an objective standard of reasonableness, and that there is a reasonable

probability that, but for counsel’s unprofessional errors, [Prasad] would have

prevailed on appeal.” Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989)

(simplified). These two prongs often overlap, when, for example, counsel fails to

raise an issue “because she foresees little or no likelihood of success on that issue.”

Id. In those instances, “[a]ppellate counsel will [] frequently remain above an

objective standard of competence (prong one) and have caused her client no

prejudice (prong two) for the same reason—because she declined to raise a weak

issue.” Id.

2 23-1968 Prasad’s appellate counsel was not ineffective in failing to raise his materiality

claim. He asserts that his 18 U.S.C. § 1546(a) convictions must be reversed because

the indicted false statements lack materiality. In particular, Prasad contends that the

misrepresentations regarding the existence of “actual existing work projects,”

“specific work positions,” “specific, bona fide positions,” and “work readily

available” in the relevant H-1B forms were not material because they were not

required under immigration law.

In United States v. Patnaik, we recently addressed the same issue. 125 F.4th

1223, 1227 (9th Cir. 2025). Defendants asserted “that the alleged false statements

[with regard to the existence of actual H-1B positions] cannot be material to the

government because USCIS can’t request information that Congress did not

require.” Id. But, we held, “even assuming that USCIS was not permitted to ask

detailed questions about jobsite locations or specific projects, Defendants cannot lie

to the government in response.” Id. Instead, “[t]he proper forum to challenge

USCIS’s authority to ask detailed questions on I-129 petitions [isn’t] through an

attack on a criminal fraud indictment.” Id. at 1229. Thus, we held the false

statements were still material regardless of whether the immigration authorities were

allowed to ask the questions. Id. at 1227.

Patnaik forecloses Prasad’s materiality claim. Even though Patnaik came

after Prasad’s direct appeal, it relied on “the longstanding principle that the

3 23-1968 government may punish untruthful responses to unlawful questions.” Id. at 1230.

Thus, it was not objectively unreasonable for Prasad’s appellate counsel to not raise

the materiality argument and pursue alternative legal arguments on direct appeal.

See Moormann v. Ryan, 628 F.3d 1102, 1109–10 (9th Cir. 2010).

2. We decline to expand Prasad’s COA. “A certificate of appealability may

issue . . . only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). See also Valerio v. Crawford, 306

F.3d 742, 767 (9th Cir. 2002). Prasad has not “demonstrate[d] ‘that jurists of reason

could disagree with the district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve encouragement

to proceed further.’” Troiano v. United States, 918 F.3d 1082, 1088 (9th Cir. 2019)

(quoting Buck v. Davis, 580 U.S. 100, 115 (2017)).

AFFIRMED.

4 23-1968