USA v. Kasali

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LOLA KASALI, §
§
Plaintiff, §
§
v. § CIVIL ACTION NO. H-26-2441
§ CRIMINAL ACTION NO. H-21-54
§
UNITED STATES OF AMERICA, §
§
Defendant. §
ORDER OF ADOPTION
The Court has carefully considered Magistrate Judge Palermo’s
Report and Recommendation (“Report and Recommendation”) (Docket
Entry No. 488), dated May 7, 2026, and Defendant Lola Kasali’s
objections thereto (Docket Entry Nos. 493 and 496), and concludes
that Kasali’s objections should be overruled, the Report and
Recommendation should be adopted, Kasali’s motion to vacate her
sentence under 28 U.S.C. § 2255, Docket Entry No. 448, should be
denied with prejudice, and a certificate of appealability should be
denied.
Kasali originally filed the pending motion to vacate her
sentence, Docket Entry No. 448, in Civil Action No. 4:26-cv-2441.
The motion was transferred to this Criminal Action pursuant to
Rule 3 of the Rules Governing § 2255 Proceedings for the United
States District Courts, which requires such motions to be entered
on the criminal docket of the case in which the challenged judgment
was entered. See R. Gov. § 2255 Proceedings 3(b). The Magistrate
Judge concluded that Kasali’s motion to vacate her sentence should
1
United States District Court
Southern District of Texas
ENTERED
June 08, 2026
Nathan Ochsner, Clerk
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be denied because it was not timely filed, and because even if the
motion had been timely, Kasali’s claims fail on the merits. The
Magistrate Judge also concluded that Kasali is not entitled to a
Certificate of Appealability, that Kasali’s two motions to strike
(Docket Entry Nos. 471 and 477) should be denied, and that a number
of other motions should be denied as moot.
Although Kasali’s motion to vacate her sentence under 28
U.S.C. § 2255 may have been untimely filed, the Court prefers to
focus on the motion’s merits. Kasali asserted four constitutional
violations in support of her motion to vacate her sentence:
(1) denial of her right to be present at trial; (2) ineffective
assistance of counsel based on a stipulation regarding sentencing
enhancements entered without her knowledge or consent;
(3) ineffective assistance of counsel due to conflicts with
counsel; and (4) inability to retain counsel of her choice because
she was denied the right to make phone calls.1 The Magistrate
Judge found that Kasali’s claims for denial of her right to be
present at trial and for ineffective assistance of counsel due to
conflicts with counsel fail because they were raised and rejected
on appeal.2 The Magistrate Judge found that Kasali’s claims for
ineffective assistance of counsel due to a stipulation entered
1Report and Recommendation, Docket Entry No. 488, p. 3 (citing
28 U.S.C. § 2255 Motion, Docket Entry No. 448, pp. 6-10). Page
numbers for docket entries refer to the pagination inserted at the
top of the page by the court’s electronic filing system.
2Id. at 5-6.
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without her knowledge or consent and due to an inability to retain
counsel of her choice fail because Kasali did not demonstrate cause
and prejudice for failing to raise these issues on appeal.3
Kasali’s objections to the Report and Recommendation challenge
the Magistrate Judge’s authority to issue the Report and
Recommendation on her motion to vacate her sentence.4 Citing inter
alia Parks v. Collins, 761 F.2d 1101 (5th Cir. 1985),5 Kasali
argues that
[o]n December 1, 2025, [J]udge Sim Lake referred
document[s] 396, 397, and all related matters pending on
the record on December 1, 2025, to [M]agistrate [J]udge
Dena Hanovice Palermo. However, [the] 28 U.S.C. 2255
motion to vacate sentence was not on the record on
December 1, 2025. The 28 U.S.C. 2255 motion to vacate
sentence was mailed to the Court on March 23, 2026 and
docketed on the record on March 26, 2026 (see
document[s] 448 and 448-1).
The 28 U.S.C. 2255 motion did not mention anything
about document 396 and document 397. Therefore, it
appears that [M]agistrate [J]udge Dena Hanovice Palermo
does not know the meaning of “related [matters].”
. . .
Because there was no referral, the magistrate judge
lacked authority to issue the report and recommendation.6
3Id. at 6-8.
4See Objection to Report and Recommendation (Document 488),
Docket Entry Nos. 493 and 496, p. 1.
5Id. at 2.
6Id. at pp. 1-2 of Docket Entry No. 493, and p. 1 of Docket
Entry No. 496.
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In pertinent part the Parks court concluded that the
magistrate judge who had entered an order setting aside a default
judgment did so without authority because there was no order of
reference from the district court and no indication that the
parties had consented to have the magistrate judge rule on the
relevant motions. Id. at 1104-06. Kasali’s reliance on Parks is
misplaced because there is a referral order in this case. As the
magistrate judge stated,
[t]he district judge to whom this case is assigned
referred all pending matters and matters related to the
Supervised Release Petition, ECF 396, to this Court.
Order ECF No. 411. Under Rule 10 of the Rules Governing
Section 2255 Proceedings, a magistrate judge may perform
the duties of a district judge pursuant to 28 U.S.C.
§ 636. Since the motion to vacate references the
Supervised Release Petition, ECF No. 448, this motion is
properly before the Court.7
On December 1, 2025, the court entered an Order of Referral
stating in pertinent part that
[o]n November 14, 2025, the Motion Under 18 USC
§ 3583(e)(2) to Modify []or Reduce Term of Supervised
Release to Time Served (docket no. 397) and all related
matters were REFERRED to Magistrate Judge Dena Hanovice
Palermo for resolution.
It is ORDERED that the Supervised Release Petition
(docket no. 396) and all pending motions and related
matters are REFERRED to United States Magistrate Judge
Dena Hanovice Palermo.8
Kasali objects to the Report and Recommendation on her motion to
vacate sentence as unrelated to the motions expressly referred to
7Report and Recommendation, Docket Entry No. 488, p. 1 n. 1.
8Order of Referral, Docket Entry No. 411.
4
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the magistrate judge because the motion to vacate (Docket Entry No.
448) was filed on March 26, 2026, over four months after the motion
to modify Kasali’s term of supervised release (Docket Entry
No. 397) was filed on November 5, 2025. Since, however, both
motions seek the same relief, i.e., an order for immediate release
from custody, the court is not persuaded that Kasali’s motion to
vacate her sentence under 28 U.S.C. § 2255 is unrelated to her
motion to modify or reduce her term of supervised release under 18
U.S.C. § 3583(e)(2) (Docket Entry No. 448). Therefore, unlike the
magistrate judge in Parks, Magistrate Judge Palermo had authority
to issue the Report and Recommendation, Docket Entry No. 488,
pursuant to the December 1, 2025, Order of Referral, Docket Entry
No. 411.
Kasali’s objections do not address the Magistrate Judge’s
determination that her motion to vacate was untimely filed, that
the four constitutional violations asserted in support of the
motion all fail for lack of merit, or that a Certificate of
Appealability should be denied.9 Nor do Kasali’s objections
address the Magistrate Judge’s conclusions that her two motions to
strike (Docket Entry Nos. 493 and 496) should be denied, or that
other motions addressed should be denied as moot.
9See Objection to Report and Recommendation (Document 488),
Docket Entry Nos. 493 and 496, p. 2 (“This motion only addressed
the procedural errors of document 488, . . . and did not address
document 488 on the merits.”).
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DENIAL OF CERTIFICATE OF APPEALABILITY
Kasali has not requested a certificate of appealability
(“COA”), but this court may determine whether she is entitled to
this relief in light of the foregoing rulings. See Alexander v.
Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (per curiam) (“It is
perfectly lawful for district court’s [sic] to deny COA sua sponte.
The statute does not require that a petitioner move for a COA; it
merely states that an appeal may not be taken without a certificate
of appealability having been issued.”). A petitioner may obtain a
COA either from the district court or an appellate court, but an
appellate court will not consider a petitioner’s request for a COA
until the district court has denied such a request. See Whitehead
v. Johnson, 157 F.3d 384, 388 (5th Cir. 1988) (per curiam). See
also Hill v. Johnson, 114 F.3d 78, 82 (5th Cir. 1997) (“[T]he
district court should continue to review COA requests before the
court of appeals does.”). “A plain reading of the A[ntiterrorism
and] E[ffective] D[eath] P[enalty] A[ct] compels the conclusion
that COAs are granted on an issue-by-issue basis, thereby limiting
appellate review to those issues alone.” Lackey v. Johnson, 116
F.3d 149, 151 (5th Cir. 1997).
A COA may issue only if the petitioner has made a “substantial
showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). See also United States v. Kimler, 150 F.3d 429, 431
(5th Cir. 1998) (per curiam). A petitioner “makes a substantial
showing when he demonstrates that his application involves issues
that are debatable among jurists of reason, that another court
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could resolve the issues differently, or that the issues are
suitable enough to deserve encouragement to proceed further.”
Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.), cert. denied,
121 S. Ct. 400 (2000). The Supreme Court has stated that:
Where a district court has rejected the constitutional
claims on the merits, the showing required to satisfy
§ 2253(c) is straightforward: The petitioner must
demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims
debatable or wrong. The issue becomes somewhat more
complicated where . . . the district court dismisses the
petition based on procedural grounds. We hold as
follows: When the district court denies a habeas petition
on procedural grounds without reaching the prisoner’s
underlying constitutional claim, a COA should issue when
the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.
. . Where a plain procedural bar is present and the
district court is correct to invoke it to dispose of the
case, a reasonable jurist could not conclude either that
the district court erred in dismissing the petition or
that the petitioner should be allowed to proceed further.
In such a circumstance, no appeal would be warranted.
Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000).
This court has carefully considered Kasali’s petition. The
court finds that reasonable jurists would not find it debatable
that Kasali’s claims are procedurally barred, either because they
were raised and rejected on appeal or because Kasali failed to
demonstrate cause and prejudice for failing to raise them on
appeal. Kasali thus fails to make a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The
court therefore concludes that Kasali is not entitled to a
certificate of appealability.
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CONCLUSIONS AND ORDER
For the reasons stated above, Kasali's objections to
Magistrate Judge Palermo's Report and Recommendation (Docket Entry
No. 488) asserted in Docket Entry Nos. 493 and 496 are OVERRULED.
Magistrate Judge Palermo's Report and Recommendation, Docket Entry
No. 488, is ADOPTED by this Court.
Defendant's 28 U.S.C. § 2255 Motion, Docket Entry No. 448 is
DENIED W:CTH PREJUDICE. No Certificate of Appealability shall
issue.
SIGNED at Houston, Texas, this 8th day of June, 2026.
SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE
8
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