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Jha v. United States

United States District Court, D. Maryland

February 27, 2019



          Ellen L. Hollander United States District Judge.

         This Memorandum Opinion resolves a motion filed by Manoj K. Jha under 28 U.S.C. § 2255, seeking to vacate his convictions and sentence. ECF 180. Jha, who is self-represented, has also filed three supplements. ECF 208; ECF 238; ECF 243 (collectively with ECF 180, the “Petition”). Jha presents numerous issues in his post-conviction challenge.

         The government filed an opposition to the initial § 2255 motion. See ECF 207. Jha filed a Reply. ECF 209. By Order of November 27, 2018 (ECF 239), the Court directed the government to respond to Jha's second supplement (ECF 238). The government's response is docketed at ECF 240. Thereafter, on December 31, 2018, Jha replied. ECF 241.

         On January 14, 2019, Jha filed a third supplement, based on a claim of newly discovered evidence. ECF 243. In particular, he complains about the government's “belatedly released exhibits 1, 2, and 3 (ECF 240-1, 240-2, and 240-3) attached to government's response to [Jha's] second supplement to the 2255 motion.” Id. at 1. Jha labels this contention as ground 24. In his view, the evidence “proves that government deliberately withheld Brady materials from the defense.” Id.

         The Court directed the government to respond. ECF 244. It did so on January 31, 2019. ECF 245. Jha replied. ECF 245.

         In addition, on February 18, 2019, Jha filed a “Motion For Leave To Authorize Supplemental Discovery.” ECF 247. In particular, Jha seeks to subpoena records from the United States Attorney's Office and the National Science Foundation, which he regards as relevant to his claims. Id.

         The parties have also included numerous exhibits with their submissions. In their submissions, both sides cited to the appellate Joint Appendix (“J.A.”), without providing a copy to the Court. See, e.g., ECF 180 at 22; ECF 207 at 13. Therefore, by Order of November 27, 2018 (ECF 239), I directed the government to provide the Court with a copy of the Joint Appendix. The government provided a six-volume J.A. on December 14, 2018.[1] The Joint Appendix is not docketed.

         Under 28 U.S.C. § 2255(b), a hearing is required “[u]nless the motion and the files and records of the case conclusively show the prisoner is entitled to no relief . . . .” This is such a case. No. hearing is necessary. For the reasons that follow, I shall deny the Petition.

         I. Procedural Summary

         Jha was indicted on November 14, 2012. ECF 1. A Superseding Indictment was filed on August 21, 2013. ECF 49. Through retained counsel, Jha filed numerous pretrial motions. See, e.g., ECF 52 (Motion to Quash Indictment); ECF 53 (Motion to Suppress Proffer Statement and Dismiss Proffer Agreement); ECF 54 (Motion to Dismiss Counts One and Eight); ECF 55 (Motion to inspect transcripts of grand jury testimony); ECF 56 (Motion to Suppress Statements and Tangible Evidence); ECF 57 (Motion to Strike Government's Notice Pursuant to Rule 404(b)(2)); ECF 58 (Motion in Limine); ECF 65 (Motion in Limine).

         The Court held pretrial motions hearings on February 14, 2014 (ECF 77); February 19, 2014 (ECF 83); and February 24, 2014 (ECF 89). A nine-day jury trial began on March 18, 2014. On April 1, 2014, the jury convicted Jha of all charges: three counts of wire fraud, in violation of 18 U.S.C. § 1343; mail fraud, in violation of 18 U.S.C. § 1341; falsification of records, in violation of 18 U.S.C. § 1519; and federal program fraud, in violation of 18 U.S.C. § 666. ECF 118; ECF 119.

         Sentencing was held on August 29, 2014. ECF 134. The Presentence Report (‘PSR, ” ECF 123) found an offense level of 27 and a criminal history category of I. ECF 12. At sentencing, the Court resolved several disputes concerning the calculation of the advisory sentencing guidelines, including the determination of the amount of the loss and whether Jha was subject to an enhancement for obstruction of justice, as a result of his trial testimony. See ECF 158 (sentencing transcript) at 8-9, identifying the disputes). Although the Presentence Report (“PSR”, ECF 123) applied a two-level upward adjustment for obstruction of justice under U.S.S.G. § 3C1.1, the Court declined to apply it.

         As a result, the Court determined that Jha had a final offense level of 25. ECF 158 at 70. Therefore, his final advisory sentencing guidelines range called for a period of incarceration ranging from 57 to 71 months. See ECF 158 at 70; ECF 138.

         The government sought a sentence of 65 months' incarceration. ECF 158 at 78. But, the Court sentenced Petitioner to a below-guidelines term of imprisonment of 36 months. ECF 137. The Court also ordered restitution in the amount of $105, 726.31.

         An Amended PSR (ECF 133) was filed to conform to the Court's rulings. Judgment was entered on September 11, 2014. See ECF 137. Thereafter, Jha timely noted an appeal to the United States Court of Appeals for the Fourth Circuit. ECF 135.

         The Fourth Circuit affirmed Jha's convictions and sentence in an unpublished opinion issued on June 4, 2015. ECF 163; see United States v. Jha, 613 Fed. App'x 212 (4th Cir. 2015) (per curiam). The mandate issued on June 26, 2015. ECF 164. Thereafter, Jha filed a petition for a writ of certiorari to the United States Supreme Court, which was denied on October 13, 2015. See 136 S.Ct. 349 (2015). Then, on December 7, 2015, the Supreme Court denied Jha's petition for reconsideration. See 136 S.Ct. 611 (2015).

         Jha has filed numerous post-trial motions with this Court, which include the following: “Fed. R. Crim. P. 33 Motion To Vacate The Judgment Of Conviction, Sentence And Restitution, And Order A New Trial (‘Rule 33 Motion')”; (ECF 166); “Motion For Reconsideration And To Recall The Court's Extension Request Of The Government” (ECF 170), “Motion And Affidavit For Disqualification And Recusal Of The Trial Judge” (ECF 182); “Motion For Supplemental Discovery To Uncover Full Scope Of Judge Ellen Hollander's Bias” (ECF 189); “Motion For Release Or Home Confinement Pending Disposition Of The 2255 Motion” (ECF 190); “Motion For Extension Of Time To File Memorandum In Support Of ECF 180” (ECF 193); Objection To The Order Denying Motion For Release From Custody (ECF 197); “Notice To The Court” (ECF 200), claiming the government failed to serve copies of its filings; “Application To The Chief Judge For Disciplinary Action As To The Prosecutor” (ECF 205); correspondence requesting information from the prosecution's file (ECF 210); a request for stay as to ECF 180, pending the filing of a petition for certiorari in the Supreme Court (ECF 211); “Motion To Enforce The Court's Order For Restitution As Is” (ECF 213); correspondence regarding admission of facts (ECF 215); and “Second Motion For Recusal Of Judge Hollander” (ECF 217).

         In addition, Jha filed assorted “housekeeping” motions. These included a request to travel (ECF 226); a motion for release of his passport (ECF 235); and a motion to file electronically. ECF 220; ECF 230. I granted Jha's request for electronic filing. ECF 231. I also approved the return of his passport (ECF 236), and I approved his request for foreign travel. ECF 227.

         In a Memorandum (ECF 173) and Order (ECF 174) of June 13, 2016, I denied the Rule 33 Motion. Thereafter, Jha noted an appeal to the Fourth Circuit. ECF 175; Appeal 16-6856. On November 22, 2016, the Fourth Circuit affirmed in a per curiam opinion. ECF 185. However, the mandate was stayed (ECF 188), pending Jha's petition for rehearing and rehearing en banc. Those requests were denied (ECF 191) and the mandate issued on February 1, 2017. ECF 192.

         In a Memorandum (ECF 198) and Order (ECF 199) of February 24, 2017, I denied Jha's first motion for recusal (ECF 182); his motion for supplemental discovery (ECF 189); and his objection (ECF 197). But, I granted his motion for extension of time (ECF 193).

         Jha filed a petition for a writ of mandamus with the Fourth Circuit in October 2017. See Appeal 17-2210. There, he sought an order from the Fourth Circuit directing this Court to recuse itself from Jha's § 2255 proceedings. In addition, in December 2017, in Appeal No. 17-2210, Jha filed a “Motion For Equitable Vacatur Of Previous Judgment Procured From Fraud on the Court, ” asking the Fourth Circuit to vacate its affirmance of his convictions. In an unpublished, per curiam opinion of February 1, 2018, the Fourth Circuit denied Jha's recusal request, as well as his request to vacate its opinion affirming Jha's criminal conviction. See In re: Manoj Kumar Jha, 710 Fed. App'x 127 (4th Cir. 2018) (per curiam).[2]

         On February 2, 2018, Jha filed a second motion in this Court, again seeking my recusal and disqualification. ECF 217. By Memorandum and Order (ECF 233; ECF 234) of June 12, 2018, I denied the second motion for recusal. Jha filed yet another petition for a writ of mandamus, asking the Fourth Circuit to direct the recusal of this Court. In an unpublished, per curiam opinion, issued on October 25, 2018, the Fourth Circuit rejected that mandamus petition. See Appeal No. 18-1718; In Re: Manoj Kumar Jha, 740 Fed. App'x 336 (4th Cir. 2018) (per curiam).[3]

         As noted, this Memorandum Opinion addresses Jha's motion to vacate under 28 U.S.C. § 2255 (ECF 180), as supplemented three times. See ECF 203; ECF 238. The initial motion contains ten claims of alleged error. ECF 180. The first supplement (ECF 203) contains an additional ten claims, although several of them are duplicative of the contentions asserted in the original petition. In Petitioner's submission on November 9, 2018 (ECF 238), Jha added grounds twenty-one through twenty-three. And, in his latest submission, filed January 14, 219 (ECF 243), he added ground 24.

         The Petitioner is now on supervised release. However, the government acknowledges that his claims are not moot, in light of the potential collateral consequences arising from his convictions. ECF 207 at 3.

         II. Factual Summary[4]

         At the relevant time, Jha was employed full-time as an engineering professor at Morgan State University (“MSU” or “Morgan”) in Baltimore, Maryland. He was also the sole owner and operator of a for-profit company, Amar Transportation Research & Consulting, Inc. (“ATRC”). ATRC's principal place of business was the same as Jha's personal residence in Severn, Maryland.

         Beginning in June 2007, the defendant used ATRC in an attempt to obtain $700, 000 in federal research funds in the form of grants from a program sponsored by the National Science Foundation (“NSF”), titled the Small Business Technology Transfer Program (“STTR”). NSF's STTR program offers research grants to “small business concerns” (“SBC”) willing to collaborate with large research institutions. ATRC, as the SBC, collaborated with the University of Maryland, a research institution.

         The STTR program required, inter alia, that the person serving as the Primary Investigator (“PI”) with respect to the proposed STTR project must be “primarily employed” by the SBC that receives the STTR grant. The PI of the SBC is responsible for the day-to-day management and operation of the STTR project.

         Jha represented to the NSF that the grants would be used for a research proposal he titled A MultiObjective Bilevel Approach to Highway Alignment Opitmization (the “Highway Project”). Although Jha was a full-time employee of MSU, he identified himself as the PI on ATRC's grant applications during each of three phases of the STTR award process.

         On June 13, 2007, Jha filed an online application with NSF on behalf of ATRC for Phase I funding in the amount of $150, 000. Phase I requires a feasibility study to determine the suitability of the research topic. On November 7, 2007, the NSF awarded ATRC a STTR grant of $150, 000.

         Jha submitted an online application with NSF on October 16, 2008, seeking STTR supplementary Phase IB funding of $50, 000 for ATRC's Highway Project. In order to qualify for the grant of $50, 000, Jha had to demonstrate that ATRC had obtained $100, 000 from a third-party investor. The NSF awarded ATRC the maximum Phase IB STTR grant of $50, 000 on January 15, 2009.

         On January 31, 2009, Jha filed an online application with NSF on behalf of ATRC for STTR Phase II funding for the Highway Project. The research proposal sought the maximum allowable grant of $500, 000 to fund 24 months of additional research. To qualify for a Phase II grant, the defendant had to show that ATRC successfully completed the Phase I research project and ATRC had to submit to a financial review by NSF's Cost Analysis and Audit Resolution Branch (“CAAR”).

         On September 2, 2009, based on CAAR's financial review, the NSF declined to award the $500, 000 Phase II STTR grant to ATRC. It cited CAAR's inability to complete the financial review due to problems with ATRC's accounting system and lack of financial resources.

         NSF's Office of Inspector General (“OIG”) discovered that all three of the defendant's research proposals and supporting documentation contained numerous misrepresentations.

         First, Jha misrepresented his ability to act as the PI for the Highway Project by certifying that he was primarily employed by ATRC during the research period when, in fact, he was employed as a full-time professor at Morgan.

         Second, Jha falsely represented that a company called KM Infotech and an individual named Kishore Ampani had invested $100, 000 in ATRC. He sent copies of KM Infotech checks to NSF totalling $100, 000, and made it appear that KM Infotech provided funds to ATRC. But, it was a sham transaction; no such corporate funds were ever invested. To illustrate, the defendant took $25, 000 from his own bank account, which was then deposited into Ampani's account. He then instructed Ampani to transfer the money to KM Infotech, which then wrote a check to ATRC in the amount of $25, 000.

         Third, the defendant falsely represented the number of employees hired by ATRC and their job descriptions. Fourth, the defendant misrepresented the extent to which UM participated as the collaborating research institution in regard to the Highway Project by spending the UM's $20, 000 sub-award as well as $12, 000 that UM had attempted to return to NSF.

         According to the government, Jha misrepresented his intended use of the STTR grants by providing research budgets that concealed his conversion of some of those funds to his personal use. He paid down the principal on his home mortgage, paid off personal credit cards, paid an unauthorized salary to his wife, and overpaid himself.

         On February 15, 2011, as part of its investigation, OIG demanded certain information from ATRC and the defendant. In response to the investigative demand, the defendant provided investigators with altered corporate records that concealed his lack of adequate recordkeeping and his misuse of the funds, including a falsified expenditure ledger and bogus employee timesheets.

         During the course of OIG's investigation, agents also discovered that the defendant had executed a scheme to defraud yet a different federal program. In particular, it uncovered information showing that Jha demanded kickbacks from graduate students at Morgan for whom he authorized research stipends payable from two MSU research projects funded by the Department of Defense. While serving as one of the PIs on those research projects, the defendant offered his graduate students research stipends on the condition that they agree to give him a portion of the stipend money. Several of Jha's former students testified at trial about Jha's demands and their kickback payments to him, in compliance with Jha's demands. Jha spent most of the money on personal expenses.

         III. Section 2255

         Section 2255(a) of Title 28 of the United States Code provides relief to a prisoner in federal custody only on specific grounds: that the sentence was imposed in violation of the Constitution or laws of the United States; that the court was without jurisdiction to impose such a sentence; that the sentence was in excess of the maximum authorized by law; or that the sentence is otherwise subject to collateral attack. See Hill v. United States, 368 U.S. 424, 426-27 (1962) (citing 28 U.S.C. § 2255); United States v. Newbold, 791 F.3d 455, 459 (4th Cir. 2015).

         “[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice.'” United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill, 368 U.S. at 428). In other words, the movant must establish (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law so fundamental as to render the entire proceeding invalid. Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003).

         The scope of a collateral attack under § 2255 is far narrower than an appeal, and a “‘collateral challenge may not do service for an appeal.'” Foster v. Chatman, U.S., 136 S.Ct. 1737, 1758 (2016) (quoting United States v. Frady, 456 U.S. 152, 165 (1982)). Thus, any failure to raise a claim on direct appeal constitutes a procedural default that bars presentation of the claim in a § 2255 motion unless the petitioner can demonstrate “cause and actual prejudice resulting from the errors of which he complains, ” or “actual innocence.” United States v. Pettiford, 612 F.3d 270, 280 (4th Cir. 2010) (citing United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999)). See Bousley v. United States, 523 U.S. 614, 621 (1998) (“Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal.”) (internal quotations and citations omitted); Murray v. Carrier, 477 U.S. 478, 485 (1986); see also Dretke ...

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