1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 EBRAHIM SHABUDIN, Case No. 22-cv-02057-LB

12 Petitioner,

ORDER TO SHOW CAUSE

13 v. Re: ECF No. 1 14 ANTHONY CASTELLANO, 15 Respondent. 16 17 INTRODUCTION 18 The petitioner, Ebrahim Shabudin, was convicted of conspiracy, securities fraud, making false 19 bank entries, and other financial crimes in 2015.1 The court sentenced him to 97 months in prison 20 and ordered him to forfeit his salary of $348,000.2 He is currently on supervised release. 21 Following a partially successful appeal and the denial of an earlier habeas petition based on 22 ineffective assistance of counsel, the petitioner now seeks habeas relief under 28 U.S.C. §§ 2241 23 and 2255(e) on the grounds that new Supreme Court and Ninth Circuit decisions establish that the 24 government’s theory against the petitioner was “legally insufficient to support a federal fraud 25 26 27 1 Pet. – ECF No. 1 at 6. Citations refer to material in the Electronic Case File (ECF); pinpoint citations are to the ECF-generated page numbers at the top of documents. 1 prosecution.”3 Under Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United 2 States District Courts, the court reviews the petition to determine if “it plainly appears” that the 3 petitioner is “not entitled to relief.”4 Because the petition satisfies this minimal standard, the court 4 orders the respondent, Anthony Castellano, to respond to the petition. 5 6 STATEMENT 7 In 2015, a jury in the Northern District of California convicted the petitioner of conspiracy, 8 securities fraud, making false bank entries, and other financial crimes in Case No. 4:11-cr-00664- 9 JSW-1.5 The court sentenced the petitioner to 97 months in prison and ordered the forfeiture of his 10 $348,000 salary.6 The court also ordered him to pay $946 million in restitution.7 The petitioner 11 appealed and the Ninth Circuit affirmed the conviction but reversed the restitution award.8 12 In 2018, the petitioner unsuccessfully sought habeas relief under 28 U.S.C. § 2255 based on 13 ineffective assistance of counsel.9 Specifically, the petitioner argued that his trial counsel should 14 have challenged the U.S. Sentencing Guidelines calculations at the time of sentencing.10 The court 15 denied the petitioner’s habeas petition under § 2255 in October 2019.11 The petitioner voluntarily 16 dismissed an appeal of this order.12 17 Having been released in January 2022, the petitioner is currently on supervised release under 18 the U.S. Probation Office for the Northern District of California, headed by the respondent 19

20 3 Id. 21 4 Rules Governing Section 2255 Proceedings for the U.S. Dist. Cts. (Dec. 1, 2019), https://www.uscourts.gov/sites/default/files/rules_governing_section_2254_and_2255_cases_in_the_u. 22 s._district_courts_-_dec_1_2019.pdf. 23 5 Pet. – ECF No. 1 at 6. 6 Id. 24 7 Id. at 12–13. 25 8 Id. at 13 (citing United States v. Shabudin, 701 F. App’x 599 (9th Cir. 2017)). 26 9 Id. at 13. 10 Id. 27 11 Id. at 14; Ex. M in Supp. of Pet. – ECF No. 1-14. 1 Anthony Castellano.13 The petitioner now seeks habeas relief under 28 U.S.C. §§ 2241 and 2 2255(e) based on new Supreme Court and Ninth Circuit decisions, from 2020 and 2021, 3 respectively. These decisions were issued after the denial of the petitioner’s first habeas petition 4 and purportedly establish that the government’s theory against the petitioner is “legally 5 insufficient to support a federal fraud prosecution.”14 6 The petitioner specifically relies on Kelly v. United States, 140 S. Ct. 1565 (2020) and United 7 States v. Yates, 16 F.4th 256 (9th Cir. 2021). In Kelly, which was a criminal fraud case arising 8 from the closure of the George Washington Bridge under New Jersey Governor Chris Christie, the 9 Court held that federal property fraud statutes “bar only schemes for obtaining property.” 140 S. 10 Ct. at 1574. And in Yates, which involved bank fraud and conspiracy, the court found that an 11 “accurate-information theory” — i.e., a theory that there was an illegal conspiracy to “conceal the 12 true financial condition of the Bank” — was legally insufficient because “[t]here is no cognizable 13 property interest in the ethereal right to accurate information.” 16 F.4th at 264–65 (cleaned up). 14 The petitioner claims that, under these recent decisions, he would not have been convicted of 15 conspiracy and fraud and that his other convictions depended on the conspiracy and fraud 16 counts.15 17 18 ANALYSIS 19 “A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith 20 award the writ or issue an order directing the respondent to show cause why the writ should not be 21 granted, unless it appears from the application that the applicant or person detained is not entitled 22 thereto.” 28 U.S.C. § 2243. “Summary dismissal is appropriate only where the allegations in the 23 petition are vague or conclusory or palpably incredible, or patently frivolous or false.” Hendricks 24 v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (cleaned up). 25 26 13 Id. at 6. 27 14 Id. 1 The petitioner previously petitioned for habeas relief and there is a general rule against 2 unauthorized successive habeas petitions. Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006) 3 (citing 28 U.S.C. § 2244(b)(2) and (3)). Nonetheless, the petitioner seeks relief here based on the 4 savings clause or “escape hatch” provided by § 2255(e), which permits a successive habeas 5 petition where the petitioner satisfies certain conditions.16 6 The Ninth Circuit has held that “a § 2241 petition is available under the ‘escape hatch’ of § 7 2255 when a petitioner (1) makes a claim of actual innocence, and (2) has not had an 8 ‘unobstructed procedural shot’ at presenting that claim.” Stephens, 464 F.3d at 898; see also Allen 9 v. Ives, 950 F.3d 1184, 1188 (9th Cir. 2020). In this context, “actual innocence” means that “it is 10 more likely than not that no reasonable juror would have convicted” the petitioner. Allen, 950 F.3d 11 at 1188. Furthermore, evaluating whether the petitioner had an “unobstructed procedural shot” 12 depends on: “(1) whether the legal basis for petitioner’s claim did not arise until after he had 13 exhausted his direct appeal and first § 2255 motion; and (2) whether the law changed in any way 14 relevant to petitioner’s claim after that first § 2255 motion.” Id. at 1190. 15 Based on these standards, the court cannot say that it is plainly apparent that the petitioner is 16 “not entitled to relief.” 17 18 CONCLUSION 19 For the foregoing reasons, 20 1. The petition warrants a response. 21 2. The clerk must serve by mail a copy of this order, the petition, and all attachments 22 thereto upon the respondent. 23 3. The clerk also must serve a copy of the “consent or declination to magistrate judge 24 jurisdiction” form upon the respondent. 25 26 27 1 4. By May 31, 2022, the respondent must file and serve upon the petitioner an answer 2 conforming in all respects to Rule 5 of the Rules Governing Section 2255 Cases, 3 showing cause why a writ of habeas corpus should not be issued. 4 5. The petitioner may submit a reply to the respondent’s answer. Should he wish to do so, 5 he must file and serve upon the respondent the reply by June 30, 2022. 6 The matter will be taken under submission, or set for hearing, in the court’s discretion. 7 8 IT IS SO ORDERED. 9 Dated: April 1, 2022 LAE 10

LAUREL BEELER

11 United States Magistrate Judge a 12

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