1

IN THE UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF VIRGINIA 

Alexandria Division 

SABRI BENKAHLA, ) 

 ) 

 Petitioner, ) 1:06cr9 (JCC) 

 ) 1:10cv30 

 v. ) 

 ) 

UNITED STATES OF AMERICA, ) 

 ) 

 Respondent. ) 

M E M O R A N D U M O P I N I O N

 This case is before the Court on Petitioner’s Motion 

pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside his 

Conviction, or Correct his Sentence (the “Petition”). For the 

reasons stated below, the Petition is denied. 

I. Background

 The facts of the case of Sabri Benkahla (“Benkahla” or 

“Petitioner”) are familiar to this Court, and what follows 

offers only a brief recital of the relevant facts here.1

 Between 

1999 and 2003, Benkahla associated with a group of young Muslim 

men who followed the teachings of lecturer Ali Timimi (“Timimi”) 

at the Dar Al-Arqam Islamic Center in Falls Church, Virginia 

(“Dar Al-Arqam”). Timimi regularly espoused the importance of 

engaging in violent jihad against the enemies of Islam. 

 

1

 For a review of the factual background, please see this Court’s Memorandum 

Opinion (“Mem. Op.”) of July 24, 2007 [Dkt. 144] and United States v. 

Benkahla, 530 F.3d 300, 303 (4th Cir. 2008).

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 Between at least 1999 and 2002, a terrorist group 

known as Lashkar-e-Taiba (“LET”) provided free jihad training to 

Muslim men from around the world at camps in Pakistan and 

Afghanistan. LET advertised its beliefs on the internet and in 

its newsletter and openly espoused hatred for the United States 

and called for jihad worldwide. (See GX 1D27, 1D28, 1D29, 1D45, 

1D46, 1D48, 1D52.)2 Between 2000 and 2002, at least seven 

associates of Benkahla and Timimi at Dar Al-Arqam, other than 

Benkahla, trained overseas with LET. See United States v. Khan, 

461 F.3d 477 (4th Cir. 2006). These associates included Ibrahim 

al-Hamdi and Yong Kwon, who were both close friends with 

Benkahla. 

 Benkahla was acquitted in 2004 on charges relating to 

attending a jihad camp in Afghanistan because the Government was 

unable to prove the location of the camp. See Benkahla, 530 

F.3d at 304. He was awarded statutory immunity and ordered to 

testify before the grand jury. Id. Petitioner agreed to answer 

questions posed by investigators outside the grand jury under 

the same protections and conditions that he answered questions 

inside the grand jury. Id.

 Before investigators and in grand jury testimony in 

2004, Benkahla denied attending any jihad camp in the summer of 

1999 and denied using any weapons in connection with such a 

 

2

 “GX” refers to the government exhibit filed at trial with the specified 

number. “DX” refers to the defendant exhibit filed at trial. “Tr.” refers 

to the page of the transcript of the trial.

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trip. Id. Further, he denied recollection of any specifics 

about suspicious individuals with whom he had traveled or 

visited, including Manaf Kasmuri and Ibrahim Buisir. Id. He 

also denied that he had corresponded about jihad training. (GX 

9D1, 9D2.) 

 In 2006, Benkahla was indicted for perjury, 

obstruction of justice, and for making false statements for his 

statements and testimony in 2004. After a four-day trial, he 

was convicted on all counts. The jury found that Benkahla 

testified falsely, obstructed justice, and provided false 

answers to the FBI about whether he participated in a jihad 

training camp in 1999, who facilitated his attendance at that 

camp, who else attended such camps, and with whom he 

corresponded about jihad training and related matters. Id. at 

305. 

 During trial, the Government offered the expert 

testimony of Evan Kohlmann (“Kohlmann”) regarding the Taliban’s 

control of Afghanistan and the prevalence of terrorist training 

camps there and of Special Agent (“SA”) Sarah Linden (“Linden”). 

(See Pet. at 12-17.) Benkahla’s trial counsel, John Keats 

(“Keats”), did not object to Kohlmann’s expert qualifications. 

Keats did not concede that Benkahla’s contested grand jury 

statements were “material” under the definition of the perjury 

statute. See 18 U.S.C. § 1001. Keats also chose not to object 

to the showing of the video “Destruction of the USS Cole;” 

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however, he did object, and was sustained, twice during the 

playing of the video, which ultimately led to the termination of 

the video. (Tr. at 125-126.) Further, Keats did not object to 

SA Linden’s testimony regarding a video titled “Russian Hell 

2000.” (GX 3A8.) This Court granted Keats’s motion on behalf 

of Benkahla to suppress the playing of “Russian Hell 2000” (Mem. 

Op., Oct. 2, 2006 at 13); however, the existence of the video 

was not suppressed, as it was repeatedly referenced in 

Benkahla’s electronic files. (See Mem. Op. at 13; GX9H55.) 

 Benkahla’s Petition also alleges that a juror entered 

the courtroom during a pre-trial evidentiary ruling on January 

29, 2007, and that Benkahla informed Keats of this at the time. 

(Pet. at 44.) Keats himself denies that this event occurred. 

(See Gov’t Opposition to Pet. (“Opp.”) at 23-24.) On January 

20, 2010, Keats addressed this issue in an email that was also 

sent to Jonathan Sheldon (Benkahla’s present counsel): 

As I indicated to you on January 14th, I have no 

recollection of the event described by Sabri in his 

petition. I cannot think that I would have 

disregarded it if it did happen and I was made aware 

of it. It is also possible that something was said to 

me and we were immediately satisfied that the person 

was not a juror in which case it left no impression on 

me. 

(Opp. at 23-24.) Furthermore, near the end of the January 29, 

2007 hearing, the Court indicated that it wished to spend more 

time considering whether a number of exhibits would be 

admissible. At that time, the Court stated: “Let me think about 

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it for a moment. [Courtroom Security Officer] Cooper, just hold 

the jury. Just let me know if they're all here. Let me come 

back. I'll take a brief recess.” (Tr. 20.) The record shows 

that a brief recess was taken and then additional evidentiary 

arguments were made by counsel, but there was no indication that 

any of the jurors were missing. Thus, for Benkahla’s allegation 

about the juror to be correct, one of those jurors had to have 

left the jury room, circled around to the courtroom’s public 

entrance and then joined the audience in the courtroom without 

the Court, the attorneys, the law clerks, or the Courtroom 

Security Officer noting his entrance. The next time that the 

jury is mentioned in the trial record is approximately four 

pages later when the following exchange takes place: 

The Court: Okay. I have to swear the jury. 

Mr. Keats: Judge, before you do, first of all, I'm going to 

ask for a rule on witnesses. 

The Court: I can't hear you, sir. 

Mr. Keats: I'm going to ask for the rule on witnesses. 

The Court: I'll grant it. I'll do it when the jury comes 

in. 

(Tr. 24.) The Court then proceeded to swear the jury and 

invoked the rule on witnesses and then asked the witnesses to 

stand and leave the courtroom. (Tr. 29-30.) Neither the Court, 

nor the trial counsel, nor the Courtroom security officer, nor a 

single member of the jury indicated that a juror was in the 

courtroom during the evidentiary hearings. 

 At sentencing, this Court found that, for purposes of 

application of the United States Sentencing Guidelines 

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(“U.S.S.G.”) § 3A1.4 App. n. 2 (the so-called “terrorism” 

enhancement), Benkahla’s false and misleading answers obstructed 

an investigation of a federal crime of terrorism. This Court 

calculated Benkahla’s guideline range at 210 - 270 months in 

prison, but then imposed a variance by reducing his Criminal 

History Category from VI to I, which resulted in a sentence of 

121 months in prison. Benkahla timely appealed. Benkahla, 530 

F.3d at 305. The Fourth Circuit affirmed his convictions and 

sentence. Id. at 303. At trial, Benkahla was represented by 

retained counsel Keats. At sentencing and on direct appeal, he 

was primarily represented by retained counsel Jonathan Shapiro 

(“Shapiro”) and William Moffitt (“Moffitt”), respectively. 

 On January 11, 2010, Petitioner moved, pursuant to 28 

U.S.C. § 2255, to Vacate, Set Aside his Conviction, or Correct 

his Sentence, arguing that (1) he was provided ineffective 

assistance of trial and appellate counsel; (2) that a juror was 

exposed to pre-trial evidentiary rulings; and (3) that the 

Government violated its duty under Brady v. Maryland, 373 U.S. 

83 (1963) to provide Benkahla with exculpatory information. 

[Dkt. 172.] The Government has opposed. [Dkt. 180.] Benkahla, 

again through counsel, filed a response. [Dkt. 181.] The 

Petition is before the Court. 

II. Standard of Review 

 Under 28 U.S.C. § 2255, a prisoner in federal custody 

may attack his sentence on four grounds: (1) the sentence was 

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imposed in violation of the Constitution or the laws of the 

United States; (2) the court was without jurisdiction to impose 

the sentence; (3) the sentence was in excess of the maximum 

authorized by law; or (4) the sentence is otherwise subject to 

collateral attack. 28 U.S.C. § 2255; see also Hill v. United 

States, 368 U.S. 424, 426-27 (1962). To prevail on a § 2255 

Motion, the petitioner bears the burden of proof by a 

preponderance of the evidence. Miller v. United States, 261 

F.2d 546, 547 (4th Cir. 1958). 

III. Analysis 

 A. Ineffective Assistance of Counsel

 Benkahla makes numerous claims of ineffective 

assistance of trial counsel, and one claim of ineffective 

assistance of appellate counsel. To succeed on a claim for 

ineffective assistance of counsel under the Sixth Amendment, a 

petitioner must satisfy the two-pronged test established by the 

Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 

(1984). See also United States v. Breckenridge, 93 F.3d 132, 136 

(4th Cir. 1996); Smith v. South Carolina, 882 F.2d 895, 898 (4th 

Cir. 1989). Under the Strickland test, a petitioner must show 

that: (1) counsel’s representation fell short of an objective 

standard of reasonableness; and (2) there is a reasonable 

probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different. Strickland, 

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466 U.S. at 687-94. The Fourth Circuit has labeled these two 

elements of the Strickland test as the “performance prong” and 

the “prejudice prong.” See Fields v. Attorney Gen. of Md., 956 

F.2d 1290, 1297 (4th Cir. 1992). If a petitioner fails to meet 

either requirement, his claim for ineffective assistance of 

counsel fails. Strickland, 466 U.S. at 700. Because “[t]he 

defendant bears the burden of proving Strickland prejudice,” if 

a defendant fails to meet this burden, “a reviewing court need 

not consider the performance prong.” Fields, 956 F.2d at 1297, 

accord Strickland, 466 U.S. at 697. The Court will address each 

of Petitioner’s ineffective assistance of counsel claims in 

turn. 

i. Failure to Object to the Expert Qualifications of 

Evan Kohlmann on the subject of the LET 

 Benkahla argues that his trial counsel, Keats, “should 

have objected to Kohlmann’s expertise as to the facts at issue 

in this trial.” (Pet. at 21.) Specifically, Benkahla argues 

that Kohlmann was not a qualified expert under Daubert v. 

Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), as the 

Government’s notice regarding his testimony did not mention any 

knowledge of LET. (Pet. at 20; Reply at 4-5.) The Government 

argues that the Fourth Circuit has already ruled on Kohlmann’s 

qualifications, finding that they were “obviously substantial” 

and that “the district court acted well within its discretion in 

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determining that they were sufficient.” (Opp. at 6 (citing 

Benkahla, 530 F.3d at 309 n.2).) Benkahla attempts to 

distinguish that ruling by arguing that, because of Keats’s 

failure to object to Kohlmann’s qualifications, the Fourth 

Circuit was examining whether this Court abused its discretion 

by “failing to sua sponte ‘police’ Kohlmann’s testimony.” 

(Reply at 4.) 

 In evaluating an ineffectiveness claim, a court must 

hold a “strong presumption that conduct falls within the wide 

range of reasonable professional assistance.” Strickland, 466 

U.S. at 689. In short, Benkahla must overcome the presumption 

that, under the circumstances, the actions he challenges now 

“might be considered sound trial strategy.” Id; see United 

States v. Terry, 366 F.3d 312, 316-18 (4th Cir. 2004). An 

attorney's decision to object or not to object to certain items 

in the course of a jury trial is precisely “the type of act for 

which Strickland requires that judicial scrutiny be highly 

deferential.” Green v. Lynaugh, 868 F.2d 176, 178 (5th Cir. 

1989). The attorney’s decision not to object constitutes a 

conscious, tactical choice between two viable alternatives. 

Carter v. Holt, 817 F.2d 699, 701 (11th Cir. 1987); see also 

United States v. Ortiz Oliveras, 717 F.2d 1, 3 (1st Cir. 1983) 

(“[T]actical decisions, whether wise or unwise, successful or 

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unsuccessful, cannot ordinarily form the basis of a claim of 

ineffective assistance”). 

 Here, regardless of the standard of review, the Fourth 

Circuit Court held, as did this Court, that Kohlmann’s 

qualifications to testify on the issues he did were “obviously 

substantial.” Benkahla, 530 F.3d at 309 n.2; (Tr. 90-91). 

Keats’s decision not to object to Kohlmann’s expert 

qualifications, particularly in light of the fact that Kohlmann 

already had been qualified as an expert witness in terrorism 

matters at least five times in the United States, including by 

Judge Brinkema in Benkahla’s first trial, was not unreasonable 

nor did that decision result in actual prejudice constituting 

ineffective assistance of counsel.3 See Strickland, 466 U.S. at 

700; (Tr. 90-91). 

ii. Failure to Concede to the Element of 

“Materiality” under the Perjury Statute 

 Benkahla argues that his trial counsel was ineffective 

because he did not simply stipulate to the element of 

“materiality” on the charge of perjury. (Pet. at 22.) A 

defendant is guilty of grand jury perjury when the government 

proves: (1) that the defendant gave false testimony to the grand 

 

3

 Benkahla argues that the case of United States v. Amawi, 541 F. Supp. 2d 945 

(N.D. Ohio 2008) should be persuasive here. In Amawi ̧ a case decided after

the Petitioner was tried here, Kohlmann’s expert testimony was rejected by 

the district court judge. Id. at 950-952. The District Court of Ohio’s 

ruling on a separate basis in a separate case does not trump the Fourth 

Circuit’s ruling on Kohlmann’s qualifications. 

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jury under oath; (2) that the testimony was false; (3) that the 

false testimony was given knowingly; and (4) that the subject 

matter of the testimony was material to the grand jury's 

investigation. United States v. Sarihifard, 155 F.3d 301, 306 

(4th Cir. 1998). In Benkahla’s view, by stipulating to this 

fourth element, he would have been able to keep Kohlmann and SA 

Linden off of the witness stand, thus eliminating a great deal 

of what he calls “prejudicial” testimony from these witnesses.4

 Petitioner’s argument, however, can only be premised 

on the theory that the Government is required to agree to a 

stipulation of materiality. The case on which Petitioner relies 

is United States v. Old Chief, 519 U.S. 172 (1997), which found 

that a district court abused its discretion in rejecting 

defendant’s stipulation to a prior offense when charged with 

being a felon in possession of a firearm. Id. In Old Chief the 

Court stated: 

In sum, the accepted rule that the prosecution is 

entitled to prove its case free from any defendant's 

option to stipulate the evidence away rests on good 

sense. A syllogism is not a story, and a naked 

proposition in a courtroom may be no match for the 

robust evidence that would be used to prove it. 

People who hear a story interrupted by gaps of 

 

4

 The Petitioner harps on the nature of Kohlmann’s and Linden’s testimony in 

both his Petition and his Reply. (See Pet. at 29-36; Reply at 6-7 

(“Benkahla’s trial was focused on precisely those inadmissible things”).) 

The Fourth Circuit has already rejected Petitioner’s appeal on that score and 

found that “[t]he trial judge managed the proceedings in this case with care 

and skill, and we see no abuse of discretion in the testimony and exhibits 

admitted.” See Benkahla, 530 F.3d at 308-310. This Court will analyze 

Petitioner’s current claim of ineffective assistance, taking into account 

that none of the testimony admitted at trial was unduly prejudicial. 

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abstraction may be puzzled at the missing chapters, 

and jurors asked to rest a momentous decision on the 

story's truth can feel put upon at being asked to take 

responsibility knowing that more could be said than 

they have heard. A convincing tale can be told with 

economy, but when economy becomes a break in the 

natural sequence of narrative evidence, an assurance 

that the missing link is really there is never more 

than second best. 

Id. at 189. The exception to this rule recognized in Old Chief

was specifically limited to defendant’s legal status. Id. at 

190. The Supreme Court concluded that the defense may require 

the Government to stipulate to a prior conviction, but “the 

prosecutor's choice will generally survive a Rule 403 analysis 

when a defendant seeks to force the substitution of an admission 

for evidence creating a coherent narrative of his thoughts and 

actions in perpetrating the offense for which he is being 

tried.” Id. at 191-92. Here there is no reason to believe 

that, had Keats offered to stipulate to the “materiality” of 

Petitioner’s statements, the Government would have accepted such 

a stipulation. Petitioner cannot show, by a preponderance of 

the evidence, that the lack of stipulation as to “materiality” 

that there is a reasonable probability that, had such a 

stipulation been made and accepted, the result of the trial 

would have been different thereby failing the “prejudice” prong 

of Strickland. See Strickland, 466 U.S. at 700. Furthermore, 

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it was not objectively unreasonable for Keats to contest the 

materiality element as part of a zealous defense strategy.5

iii. Failure to Object to the USS Cole Video 

 Benkahla next argues that Keats’s failure to object to 

the playing of the USS Cole video and failure to move for 

mistrial or a limiting instruction constituted ineffective 

assistance of counsel. (Pet. at 36.) An attorney's decision to 

object or not to object to certain items in the course of a jury 

trial is a classic example of a strategic trial judgment, “the 

type of act for which Strickland requires that judicial scrutiny 

be highly deferential.” Green, 868 F.2d at 178. With regards 

to the USS Cole video, Keats in fact objected twice after the 

video began -- once to images of Osama Bin Laden, and once to 

images of the Kenya embassy bombings. Both times the Court 

sustained the objections. (Tr. 125-126.) After the second 

objection, the Government ended the playing of the video. It 

was a short video played during the course of a four-day trial, 

and Keats objected to the video when he found it objectionable 

and was sustained. Keats was an attentive attorney and clearly 

did not hesitate to object where he felt it was warranted. He 

 

5

 The Court notes that many of the Petitioner’s arguments at trial were 

premised on the lack of “materiality” of his statements to the Grand Jury. 

(See Tr. 21, 73-74, 76-77, 994-995, 999-1000, 1014.) For example, at 

closing, defense counsel argued that “[t]he Government tells you that most of 

the evidence we heard here has to do with materiality . . . If you go through 

[the] 89 materiality exhibits, I submit to you that you will find 

approximately six that mention Sabri Benkahla, six.” (Tr. at 1014.) 

Although Keats’s trial strategy of contesting materiality proved 

unsuccessful, it was not unreasonable. 

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objected to and moved to exclude numerous exhibits during the 

trial. (See e.g., Tr. 47-49, 57, 80-81, 127, 131, 146, 156, 

172-175, and 187.) A defendant “is entitled to a fair trial, 

but not a perfect one, for there are no perfect trials.” 

McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 553 

(1984). Petitioner cannot now show that Keats provided 

ineffective assistance of counsel based on his failure to object 

to a piece of evidence, when he objected to parts of the 

evidence twice and ultimately succeeded in efforts to halt its 

presentation. Keats’s conduct with regard to the USS Cole video 

was objectively reasonable and Petitioner has not shown that 

there is a reasonable probability that the outcome of his trial 

would have been different had Keats acted otherwise. 

iv. Failure of Trial Counsel to Object to Testimony 

Regarding the Russian Hell 2000 Video 

 Benkahla also claims that Keats should have objected 

to SA Linden’s testimony about the Russian Hell 2000 video, 

Government Exhibit 3A8. (Pet. at 39.) This Court granted the 

motion by Keats to keep the video itself out of evidence because 

viewing the particular scenes within it risked prejudice that 

outweighed its probative value; however, the existence of the 

video was not suppressed, as the video was referenced in an 

email from Benkahla to a government witness, Yong Kwon, and 

retained by Benkahala. (Mem. Op., October 2, 2006, at 13; GX 

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9H55.) The contested testimony consists of seven lines spoken 

by SA Linden describing what the video was. (Tr. at 301.) 

Keats’s conduct in moving to exclude the video but failing to 

object to testimony describing the admittedly relevant existence 

of the video is objectively reasonable. 

 Furthermore, even if this Court were to determine that 

Keats’s conduct in this regard was unreasonable, the failure to 

object did not cause sufficient prejudice to support an 

ineffective assistance of counsel claim. The jury in this case 

answered 21 special verdicts with respect to the various 

statements and obstructions alleged in the four counts against 

Petitioner. The jurors found that Benkahla neither obstructed 

the grand jury nor committed perjury by testifying that he 

traveled with an individual to Pakistan as a result of such 

individual’s offer to him to show him around. In other words, 

they found that his testimony was neither evasive (for purposes 

of the obstruction charged in Count 3), nor false (for purposes 

of the perjury charged in Count 2). Given the Jury’s close 

parsing of the record and the verdict, Benkahla cannot establish 

that an objection to seven lines of SA Linden’s testimony would 

have a reasonable probability of changing the outcome of the 

trial. He cannot establish the “prejudice” prong of the 

Strickland test. 

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v. Ineffective Assistance During Sentencing 

 

 Benkahla next claims that Keats and his post-trial 

counsel, Shapiro, were ineffective for failing to apprise this 

Court of “relevant cases that demonstrated a sentencing 

disparity.” (Pet. at 47.) Petitioner argues that, although his 

sentencing memorandum dealt with the sentences of his previous 

co-defendants, it “never discussed cases outside of that small 

sample.” (Pet. at 47.) In support of this allegation, 

Petitioner offers ten cases where defendants were awarded 

lighter sentences. (Pet. at 48-50.) 

 Petitioner’s Sentencing Guideline range was reached 

after this Court imposed (and the Fourth Circuit ultimately 

upheld) the “terrorism enhancement” found in Application note 2 

to U.S.S.G. § 3A1.4. See Benkahala, 520 F.3d at 311-313. After 

finding a range of 210 – 270 months, this Court saw fit to 

impose a variance, cutting Petitioner’s sentence in half. See 

id. Significantly, the only case cited by Petitioner where the 

terrorism enhancement was imposed was one that occurred four 

months after Benkahla was sentenced. (See Pet. at 50 (citing 

“United States v. Marzook, 1:03-cr-978 (N.D. Ill.)”).) In his 

Reply, Petitioner acknowledges his error and argues that a 

separate defendant in that case, a Mr. Salah, was sentenced to 

less time than Benkahla for similar conduct. (Reply at 19.) 

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 After reviewing the cases cited by Petitioner, it is 

clear that not one of those cases is sufficiently analogous to 

the case at bar for any omission by defense counsel to 

constitute ineffective assistance. Given that Petitioner’s 

attorneys raised the sentences of his former co-defendants 

during the sentencing phase, they were not objectively 

unreasonable for failing to raise cases that presented differing 

facts, in other jurisdictions, where the terrorism enhancement 

was not imposed. See, e.g., United States v. Abu Ali, 528 F.3d 

210, 264 (4th Cir. 2008) (holding that cases with dramatic 

differences cannot serve as the basis for useful comparison, and 

that such comparisons “would be tantamount to comparing the 

incomparable”). Furthermore, even assuming counsel acted 

unreasonably, counsel’s failure to bring these cases to the 

Court’s attention would not have resulted in a different 

outcome, as Benkahla’s sentence would not have changed given 

that this Court already granted an approximately 50% variance 

from the recommended guideline range. 

vi. Failure of Appellate Counsel to Appeal this 

Court’s Ruling on Limiting the Cross-Examination 

of SA Tracy Kneisler 

 Finally, Benkahla claims that Moffitt was ineffective 

for failing to raise on appeal the fact that Keats was prevented 

at trial from impeaching SA Tracy Kneisler (Kneisler”) on the 

grounds of her purported bias against Benkahla. (Pet. at 52.) 

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In deciding which issues to raise on appeal, an attorney “is 

entitled to a presumption that he decided which issues were most 

likely to afford relief on appeal. A decision with respect to 

an appeal is entitled to the same presumption that protects 

sound trial strategy.” Pruett v. Thompson, 996 F.2d 1560, 1568 

(4th Cir. 1993). Here, Moffitt chose three issues to raise in 

his fifty-five page opening brief: (1) double jeopardy, (2) 

improper admission of expert testimony, and (3) the application 

of the terrorism enhancement. The “process of winnowing out 

weaker arguments on appeal and focusing on those more likely to 

prevail, far from evidence of incompetence, is the hallmark of 

effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 

536 (1986) (internal quotation marks omitted). The standard is 

not what a later attorney believes should have been included in 

the earlier appeal, but instead whether counsel at the time 

acted within the liberal bounds of competent representation. 

Burket v. Angelone, 208 F.3d 172, 190 (4th Cir. 2000). Given 

that the standard on appeal for reviewing this Court’s ruling on 

cross-examination is deferential, it was objectively reasonable 

for Moffitt to set this issue aside, so as to focus on more 

weighty and promising matters. This Court gave a complete 

explanation as to why it was not allowing defense counsel to 

impeach SA Kneisler, and it was highly unlikely that the Fourth 

Circuit could have found an abuse of discretion on appeal. (See 

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Tr. 14-18.) Again, Petitioner’s counsel acted in an objectively 

reasonable manner, and Petitioner cannot establish that had he 

acted differently there was a reasonable probability that the 

outcome would have been different. 

 B. Juror Contamination

 Benkahla next alleges that he is entitled to a new 

trial because a juror was exposed to prejudicial information 

when he sat in court during a pre-trial evidentiary ruling, and 

that Benkahla told this to Keats at the time. (Pet. at 44.) 

Aside from the allegation offered by Benkahla, a convicted 

perjurer, there is no evidence that a juror was so exposed.6 

Keats has disputed Petitioner’s account in an email to 

Petitioner’s current counsel. (Opp. at 22.) For Petitioner’s 

account is implausible. For it to be accurate, a juror would 

have had to leave the jury room without the Courtroom Security 

Officer or the other jurors noticing, walk around to the front 

entrance to the courtroom and re-enter without any of the 

attorneys, clerks, or the Court noticing his presence, observe 

the evidentiary hearings and then quickly retreat to the jury 

room (again unobserved) and then re-enter with the jury without 

being recognized. In support of this story, Petitioner offers 

only his own bare allegation that he told his trial counsel – an 

 

6

 In weighing the validity of Petitioner’s allegation, this Court also 

considers that Petitioner failed to raise this issue through his counsel 

Jonathan Shapiro in post-trial motions or before his sentencing in 2007, or 

through his counsel William Moffitt before his appeal in 2008.

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allegation trial counsel has refuted. Furthermore, immediately 

after Petitioner alleges he told his trial counsel about the 

juror, Keats moved the Court to exclude witnesses from the 

courtroom. Keats’s silence regarding a juror in the courtroom 

at this time corroborates his version of events rather than 

Petitioner’s. In any event, Benkahla cannot carry his burden to 

establish that an error occurred. A petitioner bears the burden 

of proving his grounds for collateral review of his sentence by 

a preponderance of the evidence. Jacobs v. United States, 350 

F.2d 571, 574 (4th Cir. 1965); Hall v. United States, 30 F. 

Supp.2d 883, 889 (E.D. Va. 1998). Petitioner has not done so 

here. 

 Petitioner also requests that this Court order the 

list of juror names turned over to defense counsel so he can 

identify any “Asian names” among them as the juror he alleges 

was in the courtroom was Asian. Petitioner then asks this Court 

to hold a hearing to which “the likely juror is brought for 

brief questioning.” (Reply at 17.) “In order to obtain an 

evidentiary hearing . . . a habeas petitioner must come forward 

with some evidence that the claim might have merit.” Nickerson 

v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992). “Evidentiary 

hearings on 2255 petitions are the exception, not the norm, and 

there is a heavy burden on the petitioner to demonstrate that an 

evidentiary hearing is warranted.” Moreno-Morales v. United 

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States, 334 F.3d 140, 145 (1st Cir. 2003). Petitioner has 

failed to offer any evidence other than his own allegation, that 

his claim has any merit. No evidentiary hearing is warranted. 

 C. Brady Violation

 Benkahla next argues that the Government failed to 

provide him with exculpatory evidence, on the grounds that the 

Government failed to produce to him records that reflected that 

cooperating witnesses told the Government that they did not know 

that Benkahla traveled to a training camp. (Pet. at 50-51.) A 

motion for a new trial on grounds of newly-discovered evidence 

is granted only if (1) the evidence is, in fact, newly 

discovered; (2) facts are alleged which allow an inference of 

diligence on defendant’s part; (3) the evidence is not merely 

cumulative or impeaching; (4) the evidence is material to the 

issues involved; and (5) the evidence would probably produce an 

acquittal at a new trial. United States v. Bates, 813 F.2d 

1289, 1295 (4th Cir. 1987). There is an exception to these 

requirements for evidence undiscovered because of a Brady

violation. See United States v. Cohn, 166 F. App’x 4, 7 (4th 

Cir. 2006). In such a case, the Defendant would need to 

demonstrate that the withheld evidence was in fact Brady/Giglio 

material, in which case a new trial may be warranted even if the 

evidence is merely impeaching and, if presented at a new trial, 

would create a “reasonable probability of a different result.” 

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Id. (emphasis added) (citing Kyles v. Whitley, 514 U.S. 419, 434 

(1995), United States v. Bagley, 473 U.S. 667, 676 (1985)). 

 Here, Petitioner argues “on information and belief” 

that his original co-defendants Randall Royer and Chwaja Mahmood 

Hasan both told the FBI that Benkahla had never been to training 

camps in Pakistan. (Pet. at 50-51.) This argument is supported 

only by Petitioner’s speculation and is rebutted by the 

Government’s letter of March 12, 2006 providing Benkahla’s 

attorney will all of the relevant reports of interviews with the 

government witnesses, including Randall Royer and Chwaja Mahmood 

Hansan. (See Opp. Ex. A (March 12, 2006 Letter).) Petitioner 

also argues that the Government’s failure to provide him with a 

copy of a “terrorist training manual” discovered at the home of 

his acquaintance, Masoud Kahn, constituted a Brady violation. 

(Pet. at 51.) The manual was not an exhibit used during 

Benkahla’s trial, although it was referenced during the 

testimony of SA Linden. 

 Neither of Petitioner’s allegations meets the criteria 

for properly stating a Brady violation. There is nothing in 

Petitioner’s Motion regarding why statements disclosed to 

Petitioner pre-trial or the non-exhibit manual were withheld or 

how the disclosure of such evidence would lead to the 

”reasonable probability” of a different result. See Kyles, 514 

U.S. at 434. While Petitioner requests an evidentiary hearing 

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regarding the statements, in order to obtain an evidentiary 

hearing, as stated above, “a habeas petitioner must come forward 

with some evidence that the claim might have merit.” Nickerson, 

971 F.2d at 1136. “Evidentiary hearings on 2255 petitions are 

the exception, not the norm, and there is a heavy burden on the 

petitioner to demonstrate that an evidentiary hearing is 

warranted.” Moreno-Morales at 145 (1st Cir. 2003). Petitioner 

has not offered sufficient evidence to show that his claim has 

any merit. 

 D. Request for an Evidentiary Hearing

 Finally, Benkahla makes a blanket argument that he has 

“the right to an Evidentiary Hearing” on the claims he brings in 

his Petition. (Pet. at 53.) As this Court has repeatedly 

stated supra, “[e]videntiary hearings on 2255 petitions are the 

exception, not the norm, and there is a heavy burden on the 

petitioner to demonstrate that an evidentiary hearing is 

warranted.” Moreno-Morales 334 F.3d at 145. “In order to 

obtain an evidentiary hearing . . . a habeas petitioner must 

come forward with some evidence that the claim might have 

merit.” Nickerson, 971 F.2d at 1136. Petitioner has not offered 

sufficient evidence to show that his claims might have any 

merit. Here, the “[M]otion and the files and records of the 

case conclusively show that the Petitioner is entitled to no 

relief.” See 28 U.S.C. § 2255. Accordingly, this Court will 

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not grant an evidentiary hearing on any of Petitioner’s claims. 

 E. Certificate of Appealability

 An appeal may not be taken from the final order in a § 

2255 proceeding unless a judge issues a certificate of 

appealability (“COA”). 28 U.S.C. § 2253(c)(1)(B). A COA will 

not issue unless a prisoner makes “a substantial showing of the 

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 

This requirement is satisfied only when “reasonable jurists 

could debate whether (or, for that matter, agree that) the 

petition should have been resolved in a different manner or that 

the issues presented were ‘adequate to deserve encouragement to 

proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) 

(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)); 

see United States v. Gray, 2010 WL 2593499 (E.D. Va. 2010). 

Petitioner has not satisfied this standard. Accordingly, a 

certificate of appealability will not be issued. 

IV. Conclusion 

 For the foregoing reasons, the Court will deny the 

Petitioner’s Motion pursuant to 28 U.S.C. § 2255 to Vacate, Set 

Aside his Conviction, or Correct his Sentence. 

 An appropriate Order will issue. 

 

 /s/ 

July 8, 2010 James C. Cacheris 

Alexandria, Virginia UNITED STATES DISTRICT COURT JUDGE

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