USA v. Kasali

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA
v.
§
§
§
§
§
CRIMINAL NO. 4:21-CR-00054
LOLA KASALI
JUDGE PALERMO’S REPORT AND RECOMMENDATION & ORDER
Pending before the Court is Defendant Lola Kasali’s motion to vacate her
sentence, brought under 28 U.S.C. § 2255. ECF No. 448.1 Under Rule 3 of the Rules
Governing § 2255 Proceedings for the United States District Courts, the motion must
be entered on the criminal docket of the case in which the challenged judgment was
entered, thus, it has been filed in this criminal case, No. 4:21-cr-54. R. Gov. Sec.
2255 Proceedings 3(b). 2 Rule 4 requires the court to promptly examine the motion,
its attached exhibits, and the record of prior proceedings. R. Gov. Sec. 2255
Proceedings 4(b). If the motion shows the movant is not entitled to relief, the Court
1 The district judge to whom this case is assigned referred all pending matters and matters related
to the Supervised Release Petition, ECF No. 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.
2 The motion was originally filed as a separate civil proceeding in Civil No. 4:26-cv-2441 but was
transferred into this criminal case.
United States District Court
Southern District of Texas
ENTERED
May 07, 2026
Nathan Ochsner, Clerk
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must dismiss the motion and direct the clerk to notify the movant. Id.3 Having
conducted the required examination, and considering the briefing and applicable
law, the Court finds that Defendant’s motion is without merit and should be
dismissed.4
I. 	BACKGROUND.
Defendant was convicted of four counts of fraud in April 2022. United States
v. Kasali, 111 F.4th 637, 640 (5th Cir. 2024), cert. denied, 145 S. Ct. 1462, 221 L.
Ed. 2d 572 (2025); ECF No. 377 at 3 (filed on August 2, 2024). Following her
conviction, she was sentenced to 70 months of imprisonment and five years of
supervised release on each count, running concurrently. Kasali, 111 F.4th at 642;
ECF No. 377 at 6.5 She appealed her conviction and sentence, contending the district
court erred in “(1) denying her motions to substitute counsel, (2) conducting the first
day of her trial in her absence, (3) applying a sentencing enhancement under
intended loss, and (4) awarding restitution to the [Small Business Administration]
when no actual loss occurred.” Kasali, 111 F.4th at 642–43; ECF No. 377 at 6. The
Fifth Circuit affirmed. Kasali, 111 F.4th at 640; ECF No. 377 at 1.
3 Under Rule 9, the movant must obtain an order from the court of appeals before presenting a
second or successive motion.
4 The Government filed a motion seeking an extension to respond, ECF No. 458, which the Court
granted, Order, ECF No. 459. Defendant filed two motions to strike the Government’s motion,
ECF No. 458, and the Court’s order, ECF No. 459, or the order of detention, ECF No. 427. ECF
No. 471, 477. Defendant’s motions are without merit and are denied.
5 Defendant’s sentence was later reduced to 57 months under revised sentencing guidelines. Order,
ECF No. 371.
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Defendant now moves to vacate her sentence, asserting four constitutional
violations: (1) denial of her right to be present at trial; (2) a stipulation regarding
sentencing 	enhancements 	was 	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.
ECF No. 448 at 6–10.
II. 	STANDARD FOR A MOTION TO VACATE UNDER § 2255.
“It is well settled that following a conviction and exhaustion or waiver of the
right 	to 	direct 	appeal, 	courts 	presume a 	defendant 	stands 	fairly 	and 	finally
convicted.” Plata-Garza v. United States, No. CR 7:23-00679-2, 2026 WL 942243,
at *13 (S.D. Tex. Jan. 28, 2026) (quoting United States v. Cervantes, 132 F.3d 1106,
1009 (5th Cir. 1998)), adopted, No. 7:23-CR-00679-2, 2026 WL 939625 (S.D. Tex.
Apr. 6, 2026). A federal prisoner may move to vacate, set aside, or correct their
sentence on four limited grounds: (1) constitutional violations; (2) jurisdictional
challenges; (3) challenges to the sentence length as in excess of the statutory
maximum; and (4) claims that the sentence is otherwise subject to collateral attack.
Id. (quoting 28 U.S.C. § 2255(a)).
Where claims under those grounds are raised on appeal, however, they are
foreclosed for review in a § 2255 motion. Rogers v. United States, No. 4:24-CR-
0002-P, 2025 WL 3677528, *3 (N.D. Tex. Dec. 18, 2025) (citing United States v.
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Kalish, 780 F.2d 506, 508 (5th Cir. 1986)). Moreover, a petitioner cannot raise a
new issue “for the first time on collateral review without showing both ‘cause’ for
his procedural default, and ‘actual prejudice’ resulting from the error.” Plata-Garza,
2026 WL 942243, at *13 (quoting United States v. Shaid, 937 F.2d 228, 232 (5th
Cir. 1991)). This “rigorous standard” applies even where fundamental constitutional
error is alleged. Id. (quoting Shaid, 937 F.2d at 232). There is a limited exception to
this requirement: “where ‘a constitutional violation has probably resulted in the
conviction of one who is actually innocent.’” Id. (quoting Shaid, 937 F.2d at 232).
III. 	DEFENDANT’S MOTION SHOULD BE DENIED.
A. Defendant’s Motion Is Untimely.
A motion brought under 28 U.S.C. § 2255 must be filed within one year of
the latest of four events, which here is the date the judgment became final. Id. at *12
(citing 28 U.S.C § 2255(f)(1)). A judgment becomes final when the Supreme Court
denies certiorari review. Ramirez v. Lumpkin, No. 7:18-CV-386, 2024 WL 4509123,
at *40 (S.D. Tex. May 31, 2024) (citing Giesberg v. Cockrell, 288 F.3d 268, 271
(5th Cir. 2002 (per curiam)), adopted in part, rejected in part, No. 7:18-CV-0386,
2024 WL 4491822 (S.D. Tex. Oct. 15, 2024).
The Supreme Court denied Defendant’s petition for a writ of certiorari on
March 24, 2025. ECF No. 394. The judgment became final on that date. Ramirez,
2024 WL 4509123, at *40. Defendant’s deadline to file her motion under § 2255
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was one year later, March 24, 2026. Her motion was filed on March 26, 2026. ECF
No. 448. It is untimely on the face of the motion and record. 28 U.S.C § 2255(f)(1).
However, under Rule 3, an inmate filing is timely if deposited in the internal
mailing system of the institution where the inmate is confined on or before the last
day for filing. R. Gov. Sec. 2255 Proceedings 3(d). The motion is signed and dated
March 23, 2026 in handwriting, ECF No. 448 at 14, however, Rule 3 requires a
declaration or notarized statement setting forth the date of deposit and that first-class
postage has been prepaid. R. Gov. Sec. 2255 Proceedings 3(d). The form contains a
preprinted declaration that the motion was placed in the prison mail system, but it
does not state that the postage was prepaid. Defendant has filed no such declaration
or statement otherwise, only stating in her motion that it is timely. ECF No. 448 at
13 (“motion is timely”); id. at 20 (same). Thus, she has failed to prove that the filing
was timely under the Rules.
The Defendant’s motion therefore should be denied on this basis.
B. Defendant’s Claim She Was Denied Her Right To Be Present At
Trial and Ineffective Assistance of Counsel Are Barred Because
They Were Raised On Appeal.
Even if the Court were to consider Defendant’s untimely motion, two of her
arguments fail because they were raised and addressed in her direct appeal. Rogers,
2025 WL 3677528, *3. First, Kasali asserted that she was denied her constitutional
right to be present at trial. ECF No. 448 at 6. The Fifth Circuit, applying de novo
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review, determined that she had waived her right to be present at trial, finding that
her “actions and continued misconduct were sufficient for the district court to imply
a voluntary waiver of [Defendant]’s presence” at trial.” Kasali, 111 F.4th at 648;
ECF No. 377 at 15. Because this claim was raised on appeal, it is foreclosed for
review in a § 2255 motion. Rogers, 2025 WL 3677528, *3 (citing Kalish, 780 F.2d
at 508).
As her third argument, Kasali claims ineffective assistance of counsel due to
conflicts with her appointed counsel and that she was not permitted to substitute
counsel. ECF No. 448 at 9–10. The Fifth Circuit detailed the district court’s denials
of 	her 	motions 	to 	substitute 	counsel, 	finding 	no 	error 	because 	Defendant’s
“intransigence was the root cause of the attorney-client communication issues.”
Kasali, 111 F.4th at 641, 643–44; ECF No. 377 at 9. Because the Fifth Circuit has
already decided this issue, it cannot be the basis of a § 2255 motion. Rogers, 2025
WL 3677528, *3.
Defendant’s motion asserting denial of her right to be present at trial and
ineffective assistance of counsel are without merit.
C. Defendant’s 	Claim 	of 	Ineffective 	Assistance 	Of 	Counsel 	and
Inability to Retain Counsel Fail Because Defendant Does Not
Demonstrate Cause And Prejudice For Failing To Raise These
Issues On Appeal.
Finally, 	Defendant’s 	remaining 	arguments—that 	her 	right 	to 	effective
assistance of counsel was violated because of sentencing enhancements agreed to
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without her consent, and that she could not make phone calls to retain her own
counsel of choice—fail because she does not demonstrate cause for failing to raise
these grounds as error on direct appeal and prejudice. ECF No. 448 at 7, 9; Plata-
Garza, 2026 WL 942243, at *13.
“‘This cause and actual prejudice standard presents ‘a significantly higher
hurdle’ than the ‘plain error’ standard [applied] on direct appeal.’” Plata-Garza,
2026 WL 942243, at *13 (quoting Shaid, 937 F.2d at 232 (citing United States v.
Frady, 	456 	U.S. 	152, 	168 	(1982))). 	“[A] 	petitioner 	must 	explain 	why 	the
constitutional or jurisdictional claim was not brought up on direct appeal (the cause
for the procedural default to not appealing the issue) and the harm caused by said
claim (the prejudice resulting from such claim).” Id. “This ‘rigorous standard’ is
applied ‘to ensure that final judgments command respect and that their binding effect
does not last only until the ‘next in a series of endless postconviction collateral
attacks.’” Id. (citing Shaid, 937 F.2d at 232 (quoting Frady, 456 U.S. at 165-66)).
Defendant claims that she raised both issues on appeal in her motion, but the
Fifth Circuit’s opinion does not address these specific constitutional violations, so
Defendant has failed to prove cause. In addition, Defendant has failed to explain the
harm caused. ECF No. 448 at 7–11. Because Defendant has not met her significantly
higher burden, these arguments cannot support a motion under § 2255. See Plata-
Garza, 2026 WL 942243, at *13.
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Thus, these two claims are without merit.
IV. 	CONCLUSION
Defendant’s motion under § 2255 is untimely. Moreover, none of the grounds
asserted can provide the basis of a motion under § 2255. Therefore, the Court
RECOMMENDS that Defendant’s motion to vacate her sentence, ECF No. 448,
should be DENIED WITH PREJUDICE.
Certificate of Appealability
It is further recommended that the district judge deny a certificate of
appealability. An appeal may not be taken to the court of appeals from a final order
in a habeas corpus proceeding “unless a circuit justice or judge issues a certificate
of appealability.” 28 U.S.C. § 2253(c)(1)(A). The Rules Governing Section 2255
Proceeding instruct that the district judge “must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” R. Gov. Sec. 2255
Proceedings 	11. 	Because 	the 	Court 	recommends 	denial 	with 	prejudice 	of
Defendant’s motion to vacate, the Court may be required to address whether
Defendant is entitled to a certificate of appealability.
To be entitled to a certificate, the applicant must show she has made a
substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
The statute requires “an overview of the claims in the habeas petition and a general
assessment of their merits.” Plata-Garza, 2026 WL 942243, at *24 (quoting Miller-
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El v. Cockrell, 537 U.S. 322, 336 (2003)). For claims denied on their merits, “[t]he
petitioner must demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong.” Id. (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000); United States v. Jones, 287 F.3d 325, 329 (5th
Cir. 2002) (applying the Slack standard to a COA determination in the context of a
§ 2255 proceeding)). Petitioner may also satisfy this standard by showing that
“jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Id. (citing Miller-El, 537 U.S. at 327; see also Jones, 287 F.3d
at 329). For claims that a district court rejects solely on procedural grounds, the
petitioner must show both that “jurists of reason would find it debatable whether the
petition states a valid claim of denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was correct in its procedural
ruling.” Id. (quoting Slack, 529 U.S. at 484).
Based on the record and for the reasons explained above, Defendant would
not be able to demonstrate that reasonable jurists would find the “district court’s
assessment of the constitutional claims debatable or wrong[,]” nor would she be able
to show that the issues “deserve encouragement to proceed further.” Id. (citations
omitted). Accordingly, Defendant is not entitled to a certificate of appealability.
ORDER
The following motions are DENIED AS MOOT: ECF Nos. 443 (motion to
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proceed IFP), 445 (motion to appoint counsel for evidentiary hearing), 446 (motion
to show cause against the Government why the motion to vacate should not be
granted), 447 (motion requesting copies of court documents), 449 (motion to amend
motion to vacate), 457 (emergency motion for hearing), 468 (motion for emergency
hearing), 469 (motion for a discovery hearing), 470 (motion for service of process),
475 (motion to show cause regarding appointment of expert witness), 476 (motion
for emergency hearing), 478 (motion for service of process), and 479 (motion for
discovery hearing).
It is further ORDERED that Defendant’s motions to revoke Judge Bryan’s
detention order, ECF No. 427, are DENIED as MOOT, ECF Nos. 467 & 474.
Defendant is no longer held in detention pursuant to Judge Bryan’s order, but
pursuant to Judge Palermo’s order, Minute Entry, dated Mar. 9, 2026 (Defendant is
remanded to custody) and R&R, ECF No. 464 (recommending term of supervised
release be revoked and Defendant be sentenced to additional prison time).
It is further ORDERED that Defendant’s motions to strike, ECF Nos. 471 &
477, are DENIED.
Notice to the Parties
The 	Parties 	have 	fourteen 	days 	from 	service 	of 	this 	Report 	and
Recommendation to file written objections. 28 U.S.C. § 636(b)(1)(C); F ED. R.
C IV . P. 72(b). Failure to file timely objections will preclude review of factual
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findings or legal conclusions, except for plain error. Quinn v. Guerrero, 863 F.3d
353, 358 (5th Cir. 2017).
The Clerk shall provide copies of this R&R and Order to Defendant and
counsel for the Government.
Signed at Houston, Texas, on May 7, 2026.|
_________________________________
Dena Hanovice Palermo
United States Magistrate Judge
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