United States v. Prasad

Docket Number18-cr-00368-CRB-1
Decision Date03 August 2023
PartiesUnited States, Plaintiff, v. Abhijit Prasad, Defendant.
CourtU.S. District Court — Northern District of California



Before the Court is Defendant Abhijit Prasad's motion to vacate set aside, or correct his sentence pursuant to 28 U.S.C § 2255. See Mot. (dkt. 184). Having denied Prasad's motion for court-appointed habeas counsel, see dkt. 183, and having carefully reviewed the parties' briefing, the Court determines that an evidentiary hearing is not required because Prasad is not entitled to relief as a matter of law, and DENIES the motion.


In 2016, Abhijit Prasad was indicted on twenty-nine counts of making false statements on visa petitions in violation of 18 U.S.C. § 1546(a), two counts of obtaining H-1B nonimmigrant visas by fraud in violation of 18 U.S.C. § 1546(a), and two counts of aggravated identity theft for using the digital signature of a former colleague to support the fraudulent visa petitions in violation of 18 U.S.C. § 1028A(a)(1). Indictment (dkt. 1-3).

Prasad was the president and CEO of a visa services company called Maremarks. U.S. Trial Br. at 2 (Dkt. 53). The Government alleged that although Maremarks' basic business model was legitimate-“visa servicing companies can file visa petitions with United States Citizenship and Immigration Services (USCIS) for qualified beneficiaries who seek to come to the United States on nonimmigrant work visas”-Prasad committed fraud to obtain H-1B visas. Id. Under the guidance in effect at that time, H-1B visas required that the visa beneficiary have “an existing work project.” Id. The H-1B visa application thus asked for the “location where work will be performed, job title, and the length of visa requested.” Id. at 3. The Government's theory at trial was that “Prasad falsely stated that work would be performed at a specific end-client-Cisco (counts 1, 3, 5, 8-11, 13-14, 16-18, 22-23, 25, 27) and Ingenuus (counts 19-21)-when no such work projects existed at either end-client.” Id. The Government also alleged that Prasad submitted false supporting documents, including false Statements of Work (“SOWs”), to bolster the visa applications, and forged digital signatures of real Cisco employees on two false SOWs. Id.

Before trial, the Government moved to dismiss Counts 2, 4, 6, 7, 12, 15, 24, 26, 28, and 29 of the Indictment, and the Court granted the motion. Request to Dismiss (dkt. 48); dkt. 60. After a six-day trial, the jury convicted Prasad on all counts. See dkt. 80.

After denying Prasad's motion for acquittal and motion for a new trial, see dkt. 103, the Court sentenced Prasad to 36 months in prison and three years of supervised release. See dkt. 118. Prasad then appealed his conviction and the Court's forfeiture order, and the Court of Appeals affirmed both rulings. See United States v. Prasad, 18 F.4th 313 (9th Cir. 2021); United States v. Prasad, No. 19-10454, 2021 WL 5176462 (9th Cir. Nov. 8, 2021). Prasad, now on supervised release, brings this motion to vacate his sentence under 28 U.S.C. § 2255.


Pursuant to 28 U.S.C. § 2255, a court may grant relief if: “the sentence was imposed in violation of the Constitution or laws of the United States, or . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).

The remedy available under § 2255 is as broad and comprehensive as that provided by a writ of habeas corpus. See United States v. Addonizio, 442 U.S. 178, 184-85 (1979). The remedy, however, does not encompass all claimed errors in conviction and sentencing. See id. at 185. Rather, it is limited to attack convictions and sentences entered by a court without jurisdiction or in violation of the Constitution or laws of the United States. See Id. A mere error of law therefore does not provide a basis for collateral attack unless the claimed error constituted “a fundamental defect which inherently results in a complete miscarriage ofjustice.” Id. (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). An error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment. Id. at 184.

A federal prisoner may not raise claims in a § 2255 motion that he failed to raise on direct appeal. See Bousley v. United States, 523 U.S. 614, 621 (1998); Reed v. Farley, 512 U.S. 339, 354 (1994). That is, if he could have raised a claim of error on direct appeal but failed to do so, the prisoner has procedurally defaulted the claim and may obtain collateral review under § 2255 only if he can show either cause and actual prejudice or that he is actually innocent. See Bousley, 523 U.S. at 621 (prisoner who failed to challenge validity of guilty plea on appeal procedurally defaulted claim); United States v. Skurdal, 341 F.3d 921, 925 (9th Cir. 2003) (prisoner who failed to bring claims of error on direct appeal procedurally defaulted them); United States v. Mejia-Mesa, 153 F.3d 925, 928 (9th Cir. 1998) (same). A claim rejected on direct appeal may not be litigated again in a § 2255 motion. See United States v. Scrivner, 189 F.3d 825, 828 (9th Cir. 1999) (appellate court decision rejecting claim was binding on court considering § 2255 motion).

Section 2255 requires that a court hold an evidentiary hearing unless the record reveals that the petitioner is not entitled to relief. See Mejia-Mesa, 153 F.3d at 929. [T]he petitioner need not detail his evidence, but must only make special factual allegations which, if true, would entitle him to relief.” Id. (quoting Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982). [A] district court may deny a § 2255 motion without an evidentiary hearing if the petitioner's allegations, viewed against the record, either do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal.” Id. at 931 (district court properly denied evidentiary hearing on claims that failed to state a claim for relief under § 2255 as a matter of law).


Prasad contends that relief is proper under § 2255 for four reasons: First, the government improperly instructed the jury to disregard required elements of the visa fraud charge; second, Prasad's convictions for visa fraud were based on misrepresentations that were not material; third, the government's expert on H-1B visas gave false testimony; and fourth, intervening changes in the law have altered the regulatory requirements for H-1B visas since Prasad's conviction. The government argues that by failing to make any of these arguments on direct appeal, Prasad procedurally defaulted and must show either cause and actual prejudice or that he is actually innocent. See Opp'n (dkt. 186); Bousley, 523 U.S. at 621. Prasad argues that his appellate attorney's “intransigence and lack of knowledge in immigration law” occasioned his failure to raise these issues on direct appeal. Reply (dkt. 190) at 2.[1] The Court interprets Prasad's reply to raise a claim for ineffective assistance of appellate counsel as to each of the four claims he now raises in this motion.[2]

Claims of ineffective assistance of appellate counsel are reviewed according to the standard set out in Strickland v. Washington, 466 U.S. 668 (1984). See Smith v. Robbins, 528 U.S. 259, 285 (2000); Moormann v. Ryan, 628 F.3d 1102, 1106 (9th Cir. 2010).

“First, the petitioner must show that counsel's performance was objectively unreasonable, which in the appellate context requires the petitioner to demonstrate that counsel acted unreasonably in failing to discover and brief a merit-worthy issue.” Moormann, 628 F.3d at 1106 (citing Smith, 528 U.S. at 285). The Court “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. The absence of evidence that counsel provided constitutionally inadequate advice cannot overcome the presumption that counsel's conduct fell within the range of reasonable professional advice. See Burt v. Titlow, 571 U.S. 12, 23 (2013). The relevant inquiry is therefore not what defense counsel could have done, but whether the choices counsel made were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998).

Second, the petitioner must show prejudice, which in the appellate context means that the petitioner must demonstrate a reasonable probability that, but for appellate counsel's failure to raise the issue, the petitioner would have prevailed in his appeal. Smith, 528 U.S. at 285-86; Moormann, 628 F.3d at 1106. The Court applies this standard to each of the four claims Prasad raises in his motion.

A. Government's Closing Argument

Prasad contends that, because the government “instructed” the jury to “focus on the first two elements” of the offense of visa fraud, 18 U.S.C. § 1546(a), the government “prevented” the jury from considering the third, fourth, and fifth elements of the offense. Mot. at 3-4. Prasad does not explain why his appellate counsel did not raise this argument on appeal, but it is not difficult to glean: Prasad confuses an uncontroversial invitation to the jury to focus on the elements that were heavily contested at trial with an instruction to the jury to disregard three elements of the charge. See Mot. at 4. Reviewing the government's statements in context provides more evidence that the government did not, in fact, minimize the elements of visa fraud from five to two:

Let's go through the elements of this charge first. As the Judge just

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