United States District Court, D. Maryland
L. Hollander United States District Judge.
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
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.
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.”
Court directed the government to respond. ECF 244. It did so
on January 31, 2019. ECF 245. Jha replied. ECF 245.
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.
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. The Joint Appendix is not docketed.
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.
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).
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.
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
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.
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,
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.
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).
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).
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.
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.
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).
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
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).
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
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.
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,
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
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.
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.
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.
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,
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
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.
Office of Inspector General (“OIG”) discovered
that all three of the defendant's research proposals and
supporting documentation contained numerous
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.
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.
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.
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.
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
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
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).
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.
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
v. Haley, 541 U.S. 386, 393 (2004); Reed v.
Farley, 512 U.S. 339, 354 (1994) (“the writ is
available only if the petitioner establishes
‘cause' for the waiver and shows ‘actual
prejudice resulting from the alleged violation.'”).
the “cause and prejudice” standard, the
petitioner must show: (1) cause for not raising the claim of
error on direct appeal; and (2) actual prejudice from the
alleged error. Bousley, 523 U.S. at 622; see