PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ROBERT LEE HOLLOWAY, Defendant - Appellant. No. 18-4083

________________ _________________ Appeal from the United States District Court for the District of Utah (D.C. Nos. 2:17-CV-00267-RJS & 2:11-CR-00984-RJS-1)

________________ _________________ Gregory W. Stevens, Salt Lake City, UT, for the Appellant. Ryan D. Tenney (John W. Huber, United Stat es Attorney, with himon the brief), Office of the United States Attorney, District of Utah, Salt Lake City , UT, for the Appellee.

________________ _________________ Before HARTZ , MURPHY , and CARSON , Circuit Judges.

________________ _________________ CARSON , Circuit Judge.

________________ _________________ A jury convicted Robert Hollowa y in federal district court of f our counts of wire fraud in violation of 18 U.S.C. § 1343 and one count of submitt ing a false tax return in violation of 26 U.S.C. § 7206. T he district court sentenced Ho lloway to 225 months’ imprisonment, after applying a s ix-level enhancement for crimes involving 250 or more FILED United States Court of Appeals Tenth Circuit 

### September 19, 2019
Elisabeth A. Shumaker Clerk of Court2 victims under U.S.S.G. § 2B1.1(b)(2)(C) (2014). 1 After unsuccessfully challenging his conviction and sentence on direct appeal, Holloway filed a 28 U .S.C. § 2255 motion raising three grounds for relief: (1) that a total breakdown of communication between Holloway and his trial counsel ca used his trial counsel to perf orm ineffectively; (2) that his trial counsel acted ineffectively by failing to argue that the evidence did not support the district court’s application of the six-level sentencing en hancement; and (3) that the prosecution violated his due p rocess rights by failing to turn over to the defense favorable information possessed by a prosecu tion witness contrary to Brady v. Maryland, 373 U.S. 83 (1963). The district court denied Holloway’s § 2255 motion, but granted a certificate of appealability on all three issu es. We exercise jurisdictionpursuant to 28 U.S.C. §§ 1291 and 2253 and affirm.
I. Robert Holloway was the presiden t and CEO of US Ventures—a comp any that traded in the futures market. H olloway told investors he had d eveloped a special algorithm that allowed him to tra de without losses. He claimed that because of the algorithm he “could trade the ma rkets and make money whether th e market went up or the market went down.” Holloway’s grandiose claims w ere false. Instead, for several y ears Holloway operated US Ventures as a “Ponzi deal”—“taking new clients’ mon ey and paying out

1 All references U.S.S.G. § 2B1.1 in this opinion are to the 201 4 version.3 salaries and distributions.” Thi s scheme continued until 2007 when the SEC froze his

accounts. Holloway subseque ntly faced criminal charges. Relevant to this case, federal prosecutors indicted Holloway on four counts of wire fraud and one count of submitting a false tax return. Attorney Edwin Wall initially represented Holloway in his crimi nal case. Approximately a month and a hal f before trial was set to begin, Wall withdrew as counsel for Holloway. After Wall’s withdrawal, the district court vac ated the trial date due to the complexity of the case and appoin ted attorney Kevin Murphy to r epresent Holloway. On November 19, 2013, the distric t court held a status conferen ce hearing with the parties. Murphy mentioned a long -shot chance that Holloway mig ht retain private counsel before trial. The judge responded directly to Holloway : “[I]f you’re going to retain counsel you’re going to do so by the end of the year. W e’re not going to delay this trial date. And so if you hire a lawyer, you are welcome to do so, but it has got to be by the end of the calendar year so he can get in and get up to spe ed and maintain all of the dates that we have got.” In March 2014, Murphy filed a mo tion requesting a hearing on Ho lloway’s competency. In support of the motion, Murp hy attached a compet ency evaluation and a supplemental evaluator memora ndum written by Dr. Jonathan Bone. During his initial competency evaluation, Dr. Bone d etermined that Holloway exhibi ted mild paranoia, and features of mania and hypomania . He also noted that Holloway m et the criteria for4 Narcissistic Personality Disor der. Yet, he ultimately conclude d that Holloway was competent to stand trial. In his supplemental evaluation , however, Dr. Bone expressed gre ater concern regarding Holloway’s disposition and ability to stand trial. D r. Bone stated that he “believe[d] that [Holloway was] l ikely compromised with regard to judgment, decisionmaking, and assisting properly in his defense.” For his part, Holloway adamantly opposed an incompetency defens e, and his counsel’s supposed fixation on h is mental health frustrated him . Emails between Holloway and Murphy demonstrate the increasing strain these com petency evaluations placed on the attorney-client re lationship. For example, Murph y repeatedly sought Holloway’s permission to disclos e Dr. Bone’s evaluation to pros ecutors. Holloway denied each request. 2 In an email dated March 24, 2014, Murphy requested that Holloway allow him to talk with p rosecutors generally about Dr. Bone’s evaluation without disclosing it to the m. Holloway responded: My answer would be. Since i str ongly disagree with the report, especially the assertion of you and Dr. Bone what it was faked My answer i s a definate no. I do not want anything regarding this report discussed in anyway shape or form with prosecutors or anyone else. As far as a more defi nite pea bargain i am not interested in showing our ( your) hand at this time. At such time as it would be appropriate i will let you know.[ 3 ]

2 Ultimately, Murphy sought ex parte authorization from t he magistrate judge to file certain material related to Holloway’s mental health un der seal.

3 The email excerpts reproduced i n this opinion are in their ori ginal form. We have not edited their contents.5 Holloway expressed a similar senti ment in an email dated March 27, 2014, after Murphy again asked f or permission to disclose Holloway’s mental health evaluation to prosecutors: You told me that Bone was brought in to evaluate whether or not there was an attempt to defraud. I was also told by you that the investi gator was brought in by you on limited res ources to investigate potential lead that would bring out the truth. Instead it appears Dr. Bone & the i nvestigators were brought on solely to portray me as mentally ill. If I had of known Dr. Bones background regarding his work with as an expert on the cr iminally insane or innocence by being mentally ill pleas, and that was y our intent from the beginning, I would have gone in completely different direct ion. Spending the limited resources that the Government allocated to you to attempt to convince me into a plea deal was not part of the int ended plan. We have now wasted 7 months of my life to be nowhere. Being cr eative, not being like everyone else in a box does not equate mental illnes s. I do not appreciate the constant reference to your belief that I am ment ally ill or your belief that I faked the results of the test merely because the results did not support your theory of the case. Your job is to defend me not package me for the purpose of an e asy plea. In my last meeting with you & Dr. Bone I felt like I was ambushed. The accusations and language used by both of you which is still con tinuing is what I would expect from an accuser not from my counsel. The l ast 7 months should have been spent addressing the facts of the case rather than looking for the simple way out. Early on it is apparent you bought into the Government side of the case rath er than attacking it or address ing my side. With what little time we have we need to spend it building my c ase. To show Government that report is of no benefit to my case. Rather sho wing that each of the Government witnesses have a reason to lie, that I did no t intently mislead any investor and that the Governments attempt to make m e look like the ringmaster is not true. On March 31, 2014, Murphy asked Holloway if he would agree to asecond psychological evalu ation. Holloway wrote back: It has been my written and verbal direction since retaining you to seek out the truth that would prove same and get closure for me and my f amily.6 Instead it seems eviden t that your intent i s to take the easy r oad, try to prove me insane, dump me and go on with your law practice. After mul tiple emails and verbal instructions to cease the insults, and personal atta cks yet you continue. I will ask you one more time to stop the attacks. It is apparent that you have no interest in defending me . . . spending 7 months do ing nothing to same. If you want out . . . get me a large delay and i will figure it out myself. Its apparent the person who is afraid of the Prosecuto r is you not me. Answer is again no . . . Had i known you were going to this foc used on trying to ambush and almost extort me into saying uncle i would have n ever agreed. Had i known the background of Bone whos deal is criminal insane plea . . . same The same day, Murphy filed the mo tion seeking a hearing on the competency issue. On April 4, 2014, a federal magist rate judge held a status hear ing. After reviewing Murphy’s motion on competency and hearing from both p arties, the judge issued an Order for Competency Evaluation. Scheduling the court-ordered co mpetency evaluation caused even more friction between Holloway and Murphy. Ho lloway was adamant that the eva luation not be scheduled over a weekend and that he be given several weeks’ no tice so that he could take the best flights. He also pointed out to Murphy that the prosecutors scheduled the evaluation over Easter weekend, a nd asked Murphy to request dif ferent dates. Murphy followed up with pros ecutors on Holloway’s request and later in formed Holloway that they “refuse to re-schedule the competency examination dates, e ven though I reminded them it is Easter week end. They are maki ng arrangements to pay your air fare to come here for the examination.” Dr. Noel Gardner evaluated Hollo way on April 19 , 2014. He dete rmined that Holloway has “situational[ly] paranoid interpersonal perspectiv es” and has a “narcissistic7 personality makeup.” He also concluded that Hollowa y has a “very mild form of persistent hypomania.” But des pite these conditions, Dr. Garne r concluded that Holloway “has the capacity but not the willingness to carefullyassess [his] legal options” and that Holloway did not have a “mental disease or defect” tha t would render him incompetent “to stand trial.” On June 3, 2014, the district cour t held another status confere nce hearing. 4 The district court invited Holloway to address the issue of his com petency. Holloway stated: Well, Your Honor, I trust the direction that—that my counsel is taking. I certainly feel no lack of compet ency in going to court and tell ing the real story, and have no lack of confidence that when we get there we ’re going to be able to prove in nocence. So I’m not—I’m not—I certainly don ’t want to be—you know, I’m ready to go. I mean I have—I have no desire t o (unintelligible) negate my right t o be able to have a fair tria l. So I’m sure we don’t want to go down that road. At the hearing, Holloway also told the district court that he h ad not seen a copy of Dr. Bone’s evaluation, a lthough he asked for a copy, an d that he learned of the results from Dr. Garner’s eva luation during the hearing. Th e district court eventually found that Holloway wa s competent to stand trial. The day after the hearing, Hollo way expressed his anger regardi ng Murphy’s focus on competency. Hollo way emailed Murphy that: The competency fiasco is not behind us . . . It was your tact n ot mine. As far as i am concerned and it is agreed by a great deal of people is we have wasted 1 year of valuable time based on the understanding that you do not understand what the make up of a complex man is. You from day one convicted me and really do believe what the prosecutors have. You have

4 Holloway claims that by this tim e his relationship with Murphy had deteriorated so much that he and Murphy were no longer communic ating by telephone.8 emphatically stressed that you t hink i am guilty and mentally i ll and argued with the judge that Gardne r was wrong . . . . . so it is not be hind us.

. . . I am not mad at you but its not b ehind us. You humiliated your client by going outside of my instructions and causing this entire delay. Are we going to have a strategy or not? if so what is it. I am calm yet focused. I am not going to sit back and trust yo ur strategy because so far you are on the same side as the Gov trying to ba il and have me plea. Holloway also expressed his con cern that Murphy should have spe nt more time formulating a defense, stating th at “[w]e clearly should have b een preparing for trial 9 months ago instead of this last minute deal. I am not happy with how this is going.” Ultimately, Holloway retained pri vate counsel without informing Murphy. On July 23, 2014, six day s before trial was set to start, the pros ecutors in this case received a call from attorney Rebecca Skordas informing them that she had just received a retainer to represent Holloway. She also i nformed the prosecutors that Holloway had asked her to request a trial continuance. On July 25, 2014, p rosecutors inf ormed the district court of this development. Tha t same day, Murphy file d a motion to with draw as Holloway’s counsel. The motion stated: Without passing judgment upon the propriety of defendant Hollow ay’s request, it does behoove defense counsel, as a matter of courte sy, to present the request to this Court. Also, as this motion was being draf ted, defense counsel received the prosecution’s sixteen-page “Notice of Defe ndant’s Potential Motion to Substitute Counsel and Move for at [sic] Tr ial Continuance.”

. . .9 The prosecutors characterize Defendant’s request as a “last-minute, desperate attempt to manipulate the legal system . . . .” That seems unnecessarily harsh. It will suffice to respond that defendant Holloway’s judgment is suspect. The district court held a hearing on the motion and the final p retrial conference on July 28, 2014. The district court was prepared to permit Skord as to enter an appearance as Holloway’s counsel, but afte r a recess, Holloway agreed to p roceed to trial with Murphy and Murphy’s co-counsel. T he district court denied Holl oway’s motion to continue the trial and denied M urphy’s motion to withdraw. The case proceeded to trial as planned. During the government’s case-in -chief, it called witnesses who testified regarding the numbers of investors in US Ve ntures. Four main investor gr oups invested in US Ventures. Representatives of eac h group testified at trial that their groups lost money. Although each group received some money back from their investm ents, representatives of each group testified that co llectively each group lost moneyduring Holloway’s scheme. Their testimony indicat ed that at least 363 individual investors invested in US
Ventures. 5

5 Robert Andres, head of Winsome Investment Trust, testified tha t Winsome Investment Trust had “about 239 , 240, 260” individual investors . Klein testified that the bank records showed that Wins ome Trust investors gave Hollo way $24.7 million, but they received only $14.5 million back. David Story, majority owner of US Ventures International, testi fied that US Ventures International had “appr oximately a hundred individual investors.” Klein testified that US Ventures Inter national investors gave Hollowa y approximately $4.45 million, but they receive d only approximately $3.39 milli on back.10 Roy Klein testified at trial. Kle in was the “court appointed r eceiver” in the related civil matter recovering funds. T he government explained that i t called Klein “only as a summary witness of the bank records.” For his part, Klein testified tha t he worked on “a related civi l matter” and had “familiarity with the bank record s of U.S. Ventures.” He expla ined that his staff had prepared spreadsheets summarizing 5,300 pages of bank records. He then detailed the amounts that investor groups had paid Holloway and the amounts they had rece ived back. Holloway had requested that Murp hy defend him on a theory of in tent, but at the end of trial the jury convicted Holloway on all counts. Hollow ay then appealed. See United States v. Holloway, 826 F.3d 1237 (10th Cir. 2016). H e raised four issues, two of which are relevant here. First, Holloway raised what we i nterpreted as an ineffective as sistance of counsel claim based on “a total breakdown in communication between him and his appointed counsel.” Holloway , 826 F.3d at 1242. We did not, however, re ach that issue “because ‘[i]neffective assistance of counsel claims should be brought i n collateral proceedings, not on direct appeal.’” Id. at 124 3 (quoting Unite d States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995)).

Duane Johnson and Ralph Thomps on of Novus Technologies testifie d. Approximately twenty-four Novus Technologies investors invested with Holloway. Novus Technologies investors in vested approximately $872,000 an d they received only approximately $266,000 back. Casey Hall of RCH-2 did not tes tify about the number of investo rs involved. Roy Klein testified that the RCH -2 investors gave Holloway appr oximately $3.2 million, but they received only $168,461.90 back.11 Second, Holloway claimed that the district court erred in calcu lating the applicable Guideline range—specifically, tha t “there was no evidence prese nted at any time showing that each of the 250-plus invest ors suffered an ‘actual loss.’” Id. at 1250–51 ; see also U.S.S.G. § 2B1.1(b)(2)(C). But a t sentencing Holloway “failed to object, as he [did] on appeal, to the number of ‘victim s’ being over 250.” Id. at 125 1. Indeed, at sentencing he argued “there was insufficien t evidence showing that he was aware there were 250 ‘victims’ . . . .” Id. (emphasis in original). Because Hollow ay failed to object to the
number of victims at sentencing, we revi ewed his claim for plain erro r. We concluded that “any error was not plain.” Id. at 1251–52. After we affirmed Holloway’s co nviction and sentence, Holloway filed a 28 U.S.C. § 2255 motion. In his mo tion, he raised three grounds f or relief. First, he reasserted his ineffective assis tance of counsel claim based on a complete breakdown of communication between him and his trial counsel. Second, he claimed that the government failed to prove there were 250 or more victims and t hat by failing to object Murphy provided ineffectiv e assistance. Finally, Hollow ay argued the prosecution violated his due pro cess rights by not turning over to the defense favorable information in the c ustody of the receiver. The district court denied Holloway’s § 2255 motion, but granted Holloway a certificate of appealability on all three issues raised in his motion. We address each issue in turn.
II.12 “We review the district court’ s legal rulings on a § 2255 motio n de novo and its findings of fact for clear error.” United States v. Orange, 44 7 F.3d 792, 796 (10th Cir. 2006). We review mixed questions of law and fact de novo. This includ es ineffective assistance of counsel claims and claims brought under Brady v. Maryland, 373 U.S. 83 (1963). Hickman v. Spears, 160 F.3d 1269, 1273 (10th Ci r. 1998) (ineffective assistance of counsel claims); Banks v. Rey nolds, 54 F.3d 1508, 1516 (10thCir. 1995) (Brady claims).
III.
A. Holloway contends a total break down in communication existed be tween him and his trial counsel and that break down caused a violation of his Sixth Amendment right to effective assistance of counsel. Ineffective assistance of counsel claims ordinarily require a s howing of both deficient performance and prejud ice. Strickland v. Washington , 466 U.S. 668, 687 (1984). But in “certain circumsta nces a presumption of ineffec tiveness arises making it unnecessary to examine [the] act ual performance of counsel.” U nited States v. Soto Hernandez, 849 F.2d 1325, 1328 (10th Ci r. 1988) (citing United States v. Cronic, 466 U.S. 648, 658 (1984)). This rule m ay apply when there has been a “complete breakdown in communication between an attorney and client.” Id. While no precise definition exists of “[t]he types of communica tion breakdowns that constitute ‘total breakdowns ,’” generally “a defendant mus t put forth evidence of a13 severe and pervasive conflict w ith his attorney or evidence tha t he had such minimal contact with the attorney that me aningful communication was not possible.” United States v. Lott (“Lott I”), 310 F. 3d 1231, 1249 (10th Cir. 2002) . We consider four factors when determining whether a compl ete breakdown in communication rendered a defendant’s representation constitutionally ineffective: 1) whether the defendant’s motion for new counsel was timely; 2 ) whether the trial court adequately inqui red into defendant’s reasons fo r making the motion; 3) whether the defendant-attorney conflict was so great that it led to a total lack of communication precluding an adequate defense; and 4) whether the defendant substantia lly and unreasonably contribute d to the communication breakdown. Id. at 1250 (citing Romero v. Fur long, 215 F.3d 1107, 1113 (10t h Cir. 2000)). Applying these four Romero factors, the d istrict court c oncluded that no complete breakdown in communication rendered Holloway’s representation ineffective. Holloway v. United States, No. 2:17-CV-267, 2018 W L 1831835, at *2–3 (D. Utah Apr. 16, 2018). Holloway contends the district c ourt erred when it analyzed eac h Romero factor. We now analyze each fact or and conclude that no total breakdown in communication occurred. First, we consider whether Hollo way “made a timely motion reque sting new counsel.” Romero, 215 F.3d at 11 13. Holloway contends his mot ion for new counsel was timely, even though he filed it six days before a long-sche duled multi-week trial because: (1) the district court did not find that he filed the motion simply for the purpose of delay; (2) he was una ble to retain counsel of his ch oice until late in the process for financial reasons; and (3) although the deadline fo r filing a motion to14 substitute counsel was set 21 days before trial, his counsel di d not inform him of that deadline. None of these arguments convince us that Holloway’s motion was timely. First, while the district court did not find that Holloway file d the motion to delay trial, throughout the litigation th e district court warned Holl oway that if he wanted to hire private counsel he needed t o do so quickly. (“We’re not g oing to delay this trial date. And so if you hire a lawye r . . . it has got to be by th e end of the calendar year so he can get in and get up to s peed and maintain all of the da tes that we have got.”). More importantly, Holloway subm itted an affidavit in support of his § 2255 motion that stated if he “had known of the 21-day deadline, [he] would have retained Ms. Skordas earlier, because my frie nd who paid her retainer for me had the funds available.” Because by his own admission he could have hired counsel earlier, but nevertheless decided to wait unt il six days before trial, we ar e convinced the motion was untimely. Next, we examine whether the tria l court adequately inquired in to the matter. Romero, 215 F.3d at 1113. Signi ficantly, at the hearing on Murphy’s motion to withdraw, the district court di d not specifically inquire into the total breakdown of communication between Holloway and Murphy. Murphy’s motion, ho wever, never expressly raised the issue. Ind eed, Murphy informed the distri ct court that he requested to withdraw as counsel because Holloway had obtained private counsel (Skordas).15 At the same hearing, the distric t court granted Murphy a recess after denying the motion to withdraw so that M urphy, Skordas, and Holloway co uld meet and discuss Skordas’s role. When they returned, Murphy explained t o the district court that Skordas would not make her appearance as Holloway’s counse l at the time. Murphy then represented, in Ho lloway’s presence and with no obj ection from Holloway, that they had discussed whether Holloway “might wish to make a record on his own behalf” in connection with the motion to “[c]ontinue the trial and substitute counsel,” but t hat he had declined. 6 Under these circumstances, where neither counsel nor the defend ant indicated that a total breakdown of communication existed, and both had an op portunity to do

so , we conclude the district cour t adequately inquired into the m atter. See Romero, 215 F.3d at 1114 (concluding “we . . . doubt whether the trial court failed to make an adequate inquiry under the circum stances,” where the appellant made an ambiguous statement that may have put the t rial court on notice of his co mplete breakdown of communication claim and where th e appellant failed to renew his objection after his counsel indicated that the trial court’s resolution would adequ ately resolve any conflict).

6 Holloway claims his conflict with Murphy began as early as Mar ch 24, 2014. Yet, the district court held mul tiple hearings prior to the hea ring on Murphy’s motion to withdraw in which Holloway coul d have informed the district court of his displeasure with Murphy’s repres entation. Recall, Holloway rep resented to the district court on June 3, 2014 th at he “trust[ed] the direction that” Murphy was taking and that he and Murphy were “all good.”16 Third, we consider whether the conflict between Holloway and Mu rphy was so great as to result in a total b reakdown of communication preclu ding an adequate defense. Romero, 215 F.3d at 111 3. Specifically, Holloway arg ues that: (1) Murphy’s motion to withdraw indicated that his judgment was “suspect”; (2) Murphy repeatedly sought to have him declared incompetent; and (3) Murphy’s belief that he was incompetent controlled Murphy’s approach to the case and usurped his right to determine th e objective of his case. 7 None of Holloway’s arguments cause us to conclude that any c onflict between Holloway and Mur phy was so great as to result in a total lack of c ommunication precluding an adequa te defense. Conflict that results in a tota l breakdown of communication exi sts where the defendant and counsel could not, i n any manner, communicate. S ee, e.g., Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir. 1970) (holding that when a defendant and his counsel did not communicate becau se of an “embroiled . . . irre concilable conflict” the defendant was “deprive[d] . . . of the effect ive assistance of . . . counsel . . . .”). A total breakdown can also exis t where the defendant and counse l are embroiled in a “stormy [relationship] with qua rrels, bad language, threats, an d counter-threats.” United States v. Williams, 594 F. 2d 1258, 1260 (9th Cir. 1979); but see United States v. John Doe No. 1, 272 F.3d 116, 124 (2d Cir. 2001) (concluding that while the

7 Holloway also pointed to the f act that Murphy learned that he retained private counsel from the governme nt. Because that fact relates to Holloway’s actions, not Murphy’s, we address this argum ent under the final Romero fact or— “whether the defendant substan tially and unreasonably contribut ed to the breakdown in communication.” Romero, 215 F.3d at 1113.17 relationship between defendant a nd counsel “was at times intens e as a result of [defendant’s] violent and aggre ssive nature, the conflict betwe en the two was not ‘so great that it . . . resulted in t otal lack of communication pre venting an adequate defense.’” (quoting United States v. Simeonov, 252 F.3d 238, 24 1 (2d Cir. 2001)). Meanwhile, certain contacts betw een a defendant and counsel can establish that no complete breakdown in communication occurred. For exam ple, in United States v. Lott (“Lott II”), 433 F.3d 718, 721 (10th Cir. 2006), Lott’s counsel did not provide Lott with any discovery a nd never visited Lott in jail. Yet, we concluded “there was not a lack of commu nication precluding an adequate d efense” because: (1) counsel met with Lott and hi s probation officer in person t o prepare the PSR; (2) counsel had a policy permitting his clients to call him collect from jail at any time, Lott was aware of that policy, a nd Lott made at least one call to counsel; (3) counsel sent Lott letters, “including one attaching a copy of the PSR a nd asking for comments or corrections;” and (4) counsel met in person with Lott in a h olding area before sentencing. Id. at 725; see als o United States v. Vaughan, 119 F. App’x 227, 231 (10th Cir. 2004) (unpublished disposition cited only for its pe rsuasive value) (concluding that the third Romero factor was not satisfied when counsel argued for their client at sentencing). In this case, Holloway claims tha t Murphy’s description of his judgment as “suspect” evinces the “adversaria l divide” between them. The st atement arose in Murphy’s motion to withdraw in re sponse to prosecutors’ claims that Holloway requested a change of counsel in a “last-minute, desperate atte mpt to manipulate the18 legal system.” Murphy replied, “ [t]hat seems unnecessarily har sh. It will suffice to respond that defendant Hollowa y’s judgment is suspect.” Referring to Holloway’s judgmen t as “suspect” is not the type o f egregious conduct in which a presumption of prejudice arises under Cronic . See, e.g., Turrentine v. Mullin, 390 F.3d 11 81, 1208 (10th Ci r. 2004) (“Th is Court has repeatedly found the Cronic presum ption inapplicable where coun sel actively participated in all phases of t he trial proceedings.” (internal quotation marks omitted)); United States v. Colem an, 835 F.3d 60 6, 612 (6th Cir . 2016) (“[T]he presumption of prejudice applie s only in limited, egregious cir cumstances . . . .” (internal quotation marks omitted)). Indeed, that comment tells us nothi ng about the relationship between Holloway a nd Murphy except that Murphy con tested the government’s negative characteri zation of his client’s motives. Accordingly, we conclude this lone sta tement by defense c ounsel does not evince a “severe and pervasive” conflict. Lott I, 310 F.3d at 1249. Holloway also argues that his co unsel’s focus on competency sho ws a conflict resulting in a total breakdown in communication. In United Sta tes v. Boigegrain, 155 F.3d 1181, 1187 (10th Cir. 1998), we held that “[t]he Sixth Ame ndment . . . [does] not require that [a] public defe nder adhere to the defendant’s apparent wish to avoid the competency i ssue.” “[W]hen a lawyer has reason to believe that her client may not be mentally competent to sta nd trial, she does not render i neffective assistance of counsel by making her concerns k nown to the court.” Id. This is because “[t]he Constitution prohibits a court fro m trying defendants who are m entally incompetent.”19 Id. at 1188 (citing Pate v. Robins on, 383 U.S. 375, 378 (1966)) . And “[d]efense counsel is often in the best pos ition to determine whether a de fendant’s competency is questionable.” Bryson v. War d, 187 F.3d 1193, 1201 (10th Ci r. 1999), cert. denied, 529 U.S. 1058 (2000). T hus, “the defendant’s lawyer is not only allowed to raise the competency issue, but , because of the importance of t he prohibition on trying those who cannot understa nd proceedings against them, sh e has a professional duty to do so when appropriate .” Boigegrain, 155 F.3d at 1188. Here, Murphy had reason to belie ve that Holloway might not have been mentally competent to stand tria l. Dr. Bone’s evaluation concl uded that Holloway was competent; yet, his supplemen tal evaluator memorandum expre ssed his belief “that [Holloway] is likely com promised with regard to judgment, decision-making, and assisting properly in his de fense.” But unlike the evaluat ion, the supplemental evaluator memorandum arose out o f a meeting between Dr. Bone, H olloway, and Murphy. The meeting’s purpose was to discuss Dr. Bone’s findin gs from the initial evaluation. The purpose was not to reevaluate Holloway. Yet after that meeting, Dr. Bone provided the supplemental evaluator memorandum, in which h e described a renewed concern for Holloway’s competency to stand trial. After receiving the supplementa l evaluator memorandum, Murphy appropriately raised Holloway’s competency with t he district co urt in order to seek an additional opinion. And while Holloway criticizes his couns el’s attempts to have him declared incompetent, he ind icated that he understood the p urpose of his20 evaluation was to determine if he could form the requisite inte nt to defraud the victims. Holloway also asserts that Murphy ’s intent-based defense usurpe d his ability to control the objective of his c ase. But strategic disputes d o not establish conflicts that support total breakdown in c ommunication claims. United S tates v. Hutchinson, 573 F.3d 1011, 1025 ( 10th Cir. 2009) (“‘strategic disagreement[ s],’ while no doubt unhelpful to a productive working relationship, are ‘not suffic ient to show a complete breakdown in communication.’” (al teration in original) (quoting Lott II, 433 F.3d at 725)); Lott I, 310 F.3d at 1249 (“Good cause for substitution o f counsel consists of more than a mere strategic disag reement between a defendant and his attorney . . . rather there must be a total bre akdown in communications.” (int ernal citation omitted)); cf. Hale v. Gibson, 2 27 F.3d 1298, 1323 (10th Cir. 2 000) (concluding that Cronic was not implicated where counsel “made a reasonable stra tegic decision to concede some involvement by Hale , given the overwhelming eviden ce presented at trial, and focused on the extent of his involvement and whether others could have been involved”). And defenses pur sued (or not pursued) at tria l are quintessentially strategic decisions. Gonzalez v . United States, 553 U.S. 242, 248 (2008) (“[D]ecisions by counsel are gen erally given effe ct as to what arguments to pursue . . . .”); Anderson v. A ttorney Gen. of Kan., 425 F.3d 8 53, 859 (10th Cir. 2005) (“Whether to raise a part icular defense is one aspect of trial strategy . . . .”). Here, Holloway expressly represen ted to Murphy that he wanted t o contest the intent element of the wire fraud charges against him. Indeed, Holloway asked21 Murphy to convince the jury tha t he “did not intent[ionally] mi slead any investor.” Because Holloway sanctioned a de fense based on intent, we are n ot convinced that Murphy “usurped” his ability to define the objective of his def ense. 8 Accordingly, Murphy’s pursuit of an intent-bas ed defense at trial does not s upport a complete breakdown of communication claim. Finally, we consider whether Ho lloway “substantially and unjust ifiably contributed to the breakdown in c ommunication.” Romero, 215 F. 3d at 1113. “A defendant cannot simply manufact ure a breakdown in communicatio n and thereby give rise to a constitutional violation.” Id. at 1114. Holloway contends no evidence ex ists that his actions contribut ed to the strained communication with counsel, but the record is to the contrary. As Holloway points out, Murphy heard about his retenti on of private counsel from prosec utors, not from

8 In McCoy v. Louisiana, 138 S. C t. 1500, 1508–11 (2018), the Su preme Court held that a defendant has an au tonomy right (i.e., the “[a]uton omy to decide . . . the objective of the defense”) to as sert actual innocence, and wher e counsel has violated that right, no showing of preju dice is necessary . Unlike ineff ective assistance of counsel jurisprudence, “a client ’s autonomy, not counsel’s comp etence, is in issue.” Id. at 1510–11. “These are not s trategic choices about how bes t to achieve a client’s objectives; they are choices about what the client’s objectives in fact are .” Id. at 1508 (emphases in original). H olloway relies on McCoy to sugge st that counsel usurped Holloway’s right to dete rmine the objective of his defe nse. Clearly McCoy permits a free-sta nding autonomy claim. But Holl oway did not present that claim to the dis trict court and the district c ourt did not grant a COA for such a claim. Fur ther, the Supreme Court recognized in McC oy that the disputes there “were not strategic disputes about whether to concede an element of a ch arged offense.” Id. at 1510 (emphasi s added). Meanwhile, the disput es here are strategic disputes. And as noted above, Ho lloway expressly requested his counsel attack the intent element of the govern ment’s case against him.22 Holloway himself. Holloway chose not to communicate directly with Murphy about an issue that directly affected h is representation. Indeed, Hollo way stopped taking Murphy’s calls and limited thei r communication to email. This undoubtedly contributed to a tense relationship. Fina lly, much of Holloway’s hostility is attributable to the competency proceedings , which, as we just c oncluded, counsel ha d an obligation to
pursue. In sum, we conclude that the Ro mero factors do not support Holl oway’s contention that he suffered a co mplete breakdown in communicati on with Murphy that rendered his representation ineffective.
B. Holloway also argues that his c ounsel’s failure to object to a six-level sentencing enhancement for 250 or more vict ims under U.S.S.G. § 2B1.1(b)(2 )(C) deprived him of effective assistance of counsel . As we explained in Holloway’s direct appeal, The [district] court calculated Mr. Holloway’s Guideline range as 188 to 235 months and sentenced him to a term of imprisonment of 225 month s. Part of that calculation came from a six-level enhancement that applies if a crime “involved 250 or more victims.” U.S.S.G. § 2B1.1(b)(2)(C) (201 4). A victim was defined as “any person who sustained any part of the actual loss,” § 2B1.1 n.1, and “actual loss” was defined as “the reasonably f oreseeable pecuniary harm that resulted from the offense.” Id. at n.3. Holloway, 826 F.3d at 1250. In applying the enhancement, the district court appears to have extrapolated from the testimony of seven witnesse s that the number of victims exc eeded 250. Holloway contends these witnesses’ testim ony did not establish by a prep onderance of the evidence23 the existence of 250 or more vi ctims. Because Holloway believe s his counsel overlooked this objection, he contends his c ounsel provided ineffective as sistance. We evaluate ineffective assistan ce of counsel claims using the framework provided in Strickland v. Was hington, 466 U.S. 668 (1984). Und er Strickland, a defendant “must show both that his counsel’s performance ‘fell below an objective standard of reasonableness’ and th at ‘the deficient performance prejudiced the defense.’” Byrd v. Workman, 645 F .3d 1159, 1167 (10th Cir. 2011) (emphasis omitted) (quoting Strickland, 466 U.S. at 687–88 ). “Courts are free to address these two prongs in any order, and failure under either is dispositive.” Id. at 1168. “[O]ur review of counsel’s perfo rmance under the first prong of Strickland is a ‘highly deferential’ one.” Id . (quoting Hooks v. Workman, 606 F.3d 715, 723 (10th Cir. 2010)). We employ “a strong presum ption that counsel provided effective assistance.” United States v. Kennedy, 225 F.3 d 1187, 1197 ( 10th Cir. 2000). To be constitutionally deficient, counsel’s performance “must have been ‘completely un reasonable, not merely wrong, so that it bears no relati onship to a possible defense s trategy.’” Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir. 1997) (quoti ng Hatch v. Oklahoma , 58 F.3d 1447, 1459 (10th Cir. 1995)). Indeed, “we start by presuming, absent a sh owing to the contrary, that an attorney’s conduct is objectiv ely reasonable because it coul d be considered part of a legitimate trial strategy.” Bu llock v. Carver, 2 97 F.3d 1036, 1047 (10th Cir. 2002). The defendant bears the “heavy burden” of overcoming that presumpti on. Fox v. Ward, 200 F.3d 1286, 1295 (10th Cir. 2000). A nd “the absence of evidence cannot overcome the ‘strong presumption that counsel ’s conduct [fell] within the wi de range of reasonable24 professional assistance.’” Burt v. Titlow, 571 U.S. 12, 23 (20 13) (alteration in original) (quoting Strickland, 4 66 U.S. at 689). Here, Holloway failed to establis h that his counsel was constit utionally ineffective. Holloway correctly asserts that: (1) testimony at trial establi shed that US Ventures had at least 363 investors; (2) the government’s case-in-chief only in cluded the testimony of seven investors who testified to their losses during the scheme ; and (3) no testimony was presented during trial or at sent encing regarding the specific number of investors who were made whole befo re the scheme ended. 9 But Holloway has not overcome the strong presumption that, under al l the circumstances, the chall enged action “ might be considered sound trial strategy. ” Strickland, 466 U.S. at 689 (emphasis added); cf. Lott v. Trammell, 705 F.3d 1167 , 1186 (10th Cir. 2013) (“Appell ant must demonstrate . . . that the challe nged action could not be consi dered sound trial strategy.”). Indeed, Holloway doe s not even advance an argumen t in this regard. The strong presumption in favor o f attorney compe tence assumes that counsel makes a strategic evaluation afte r considering the relevant cos ts and benefits of certain actions. Here, while Hol loway’s argument is colorable, the case law is not settled in this Circuit. In oth er contexts we have approved re asonable estimates during sentencing. See, e.g., United St ates v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005) (“[W]hen the actual drugs . . . are not seized, the trial court may rely upon an estimate to

9 We also note that an individual is not a “victim” who suffered an “actual loss” under § 2B1.1(b)(2) if t he individual is “fully and timel y reimbursed.” See United States v. Orr, 567 F. 3d 610, 616 (10th Cir. 2009).25 establish the defendant’s guide line offense level so long as th e information relied upon has some basis of support in the facts of the particular case and bears sufficient indicia of reliability.” (internal quotatio n marks omitted)). But we have not addressed this type of extrapolation. Other circuits h ave reached different conclusio ns in analogous circumstances. Compare United St ates v. Savarese, 686 F.3d 1, 16 (1st Cir. 2012) (affirming a district court that determined that ten or more cr edit card companies were victims under U.S.S.G. § 2B1.1( b)(2)(A) because: (1) the co-con spirators executed fraudulent transactions on 107 credit cards, which each resulte d in actual loss to the financial institution that issu ed that card; (2) most credit ca rds were destroyed after use, but 23 were issued by five diffe rent institutions; (3) there wa s additional evidence that a sixth issuer was harmed), with U nited States v. Brown, 771 F.3d1149, 1160 (9th Cir. 2014) (rejecting the argument that“the district court could de termine that 100 [out of 405] victims had their financial security substantially endange red solely by extrapolating from the 27 out of 29 victim impac t statements provided to it”) . Thus, the benefits of objecting were unclear. Furthermore, an objection could have harmed Holloway. At sente ncing, Murphy sought leniency from the distri ct court, imploring it to depart from the Guideline range to account for Holloway’s mental proclivities. 10 An objection could have resulted in additional evidence regarding i ndividual victims, which counsel could have reasonably

10 The parties did not include the s entencing transcript in the r ecord on appeal. Nevertheless, we take judicial notice of district court filings . See United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 201 0) (taking judicial notice of district court record that was not part of the record on appeal).26 believed would reduce the likeli hood of lenienc y. Accordingly, we conclude that Holloway failed to overcome the presumption that his counsel’s actions were strategic. See Hanson v. Sherrod, 797 F.3d 810, 829 (10th Cir. 2015) (“[W] hen counsel focuses on some issues to the exclusion of o thers, there is a strong presu mption that he did so for tactical reasons rather than thro ugh sheer neglect.” (quoting Y arborough v. Gentry, 540 U.S. 1, 8 (2003)). Nevertheless, Holloway argues tha t “a valid sentencing challeng e overlooked by trial counsel satisfies both prong s of the Strickland analysis. ” In support, Holloway relies on United States v. Kissick, 69 F.3d 1048 (10th Cir. 1995) and United States v. Glover, 97 F.3d 1345 (10t h Cir. 1996). Neither cas e persuades us that Holloway’s counsel was ineffective. In Kissick, defense counsel “fa il[ed] to challenge the use of a prior conviction to classify the defendant as a caree r offender when that prior con viction [was] facially insufficient ” to satisfy the requirements for the career offender classific ation. Kissick, 69 F.3d at 1056 (emphasis added). T here, we concluded that counse l’s failure to object satisfied the deficient perform ance prong under Strickland. Id . Similarly, in Glover we held that “[w]hen counsel has unwittingly relieved the governme nt of its burden of proof, particularly when the evidence of record does not satisfy that burden, it is fair to say counsel has ‘so undermined the proper functioni ng of the advers arial process that [it] cannot be relied on as having pr oduced a just result.’” Glover , 97 F.3d at 1349 (alteration in original) (footnote omitted) ( quoting Strickland, 466 U.S. a t 686). But we emphasized27 that the sentencing “issue counsel failed to raise was clearly meritorious .” Id. (emphasis added). In both Kissick and Glover, counse l failed to raise clearly mer itorious arguments and there was no indication that the defendant could have been prejudiced if counsel objected. Here, the objection wa s not a clear winner and could have prejudiced Holloway. Thus, counsel’s failu re to object to the number of v ictims is reasonably attributable to sentencing stra tegy. For those reasons, we are not persuaded that either Kissick or Glover dictate our reso lution of Holloway’s claim. Accordingly, Hollowayfailed to carry his burden with respect t o this claim.
IV. Finally, Holloway argues that the prosecution violated his due process rights by failing to turn over evidence inthe receiver’s possession. Ho lloway seeks all the documents in the receiver’s posse ssion. The district court con strued this claim as a Brady violation and denied relief. “[T]he suppression by the prosecu tion of evidence favorable to an accused . . . violates due process where the ev idence is material either to g uilt or to punishment, irrespective of the good faith or bad faith of the prosecution. ” Brady, 373 U.S. at 87. To establish a Brady violation, the defendant bears the burden of establishing that: the prosecution suppressed evidence; the evidence was favorable to the accused; and the evidence was material . Smith v. Sec’y o f N.M. Dep’t of Corr., 50 F.3d 801, 824 (10th Cir. 1995). The “prosecution” incl udes “not only the individua l prosecutor handling the case, but also extends to the p rosecutor’s entire office, as we ll as . . . other arms of the28 state involved in investigative aspects of a particular crimina l venture.” Smith, 50 F.3d at 824 (internal citation and footnote omitted). Holloway contends that the rece iver was a member of the prosecu tion team, and thus the prosecution had a duty to ask the receiver to provide it with all exculpatory and material documents. 11 “A Brady claim fails if the existen ce of favorable evidence is merely suspected.” United Stat es v. Erickson, 561 F.3d 1150, 1 163 (10th Cir. 2009). The defendant bears the burden o f establishing that the evidenc e exists. Id. Here, Holloway’s Brady violation fa ils because he does not even attempt to argue that the documents in the receiver’s po ssession are favorable to him. I ndeed, he claims he cannot evaluate favorability because he ha s not seen the receiver’s do cuments. Speculation is insufficient to estab lish favorability unde r Brady. United Sta tes v. Acosta-Gallardo, 656 F.3d 1109, 1117 (10th Cir. 2011) (c oncluding that the defendant failed to establish favorability under Brady where “no one knows whether the result s [of the fingerprint analysis] would have been favorab le” to the defendant); Sandova l v. Ulibarri, 548 F.3d 902, 915 (10th Cir. 2008) (explain ing that the defendant had th e burden to establish “his

11 The district court concluded th at the receiver did not fall wi thin the prosecution team because he was an officer of the court. Hollo way, 2018 WL 1831835, at *4. We have not addressed whether a court-appointe d receiver can be a member of the prosecution team f or Brady purposes. Because we resolve this issue on other grounds, we do not reach that question.29 [Brady] theory was more than sp eculation”). Here, Holloway off ers even less than speculation. Thus, Holloway’s Brady claim necessarily fails. 12 We note that Holloway seeks a ccess to all the documents in the receiver’s possession. To the extent this request may be construed as a d iscovery motion, we conclude that he waived the argument. See Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Argume nts inadequately briefed in the opening brief are waived.”). Holloway’s briefing re ferenced only a Brady violati on, made no mention of discovery, and did not cite the p roper standard for discovery i n § 2255 proceedings. See Rule 6(a) of the Rules Governi ng Section 2255 Proceedings. Ind eed, neither party briefed the issue of whether Ho lloway is entitled to discovery in the § 2255 context to the district court or on appeal. Acco rdingly, Holloway waived any argument for discovery.
AFFIRMED.

12 As to materiality, “[u]nder Bra dy, evidence is material if it creates a reasonable probability that, had t he evidence been disclosed to the defense, the result of the proceedings would have b een different.” U nited States v . Acosta-Gallardo, 656 F.3d 1109, 1117 ( 10th Cir. 2011) (internal quotation marks omitted). “A reasonable probability is a prob ability sufficient to undermine confidence in the outcome.” Id. (quoting Scott v. Mullin, 303 F.3d 1222, 1230 (1 0th Cir. 2002). Holloway fails to allege that th e documents are material. But, even if he had, at trial the prosecution presen ted overwhelming evidence of Hol loway’s guilt, including Holloway’s own emails d escribing his operation of US Ventures as a “Ponzi deal.” We doubt that any documents in the possession of the receiver would undermine our confidence in the outcome of the case, particular ly because Holloway’s defense strategy focu sed on his mental culpability, not on whether he was engaged in the unde rlying conduct itself.