NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

MUHANAD ELFATIH M.A. BADAWI, 

Defendant-Appellant.

No. 21-55944 

D.C. No. 

8:15-cr-00060-DOC-2 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

David O. Carter, District Judge, Presiding

Argued and Submitted April 8, 2024

Pasadena, California

Before: BERZON and MENDOZA, Circuit Judges, and BOLTON,** District 

Judge.

Muhanad Badawi appeals the denial of his motion to vacate, set aside, or 

correct his sentence under 18 U.S.C. § 2255. Badawi was convicted of conspiracy 

to provide and aiding and abetting an attempt to provide material support—in the 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Susan R. Bolton, United States District Judge for the 

District of Arizona, sitting by designation.

FILED

JUL 23 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

form of personnel—to a foreign terrorist organization. 18 U.S.C. § 2339B. He was 

also convicted of financial aid fraud stemming from his use of Pell Grant funds to 

purchase a plane ticket for his co-defendant to travel internationally. 20 U.S.C. 

§ 1097(a). “We review de novo a district court’s decision to grant or to deny a 

petition for habeas corpus.” Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th 

Cir. 1996). 

1. Badawi first argues that he is “factually innocent” of “misappl[ying]” 

financial aid funds under § 1097(a) because his use of Pell Grant funds to purchase 

a plane ticket for someone else did not involve the “conversion” of funds, which he 

contends is a required element of the crime. Badawi did not advance this position 

at trial and did not challenge his financial aid fraud conviction on this ground, or 

any other, on direct appeal. “Where a defendant has procedurally defaulted a claim 

by failing to raise it on direct review, the claim may be raised in [a § 2255 petition] 

only if the defendant can first demonstrate either ‘cause’ and actual ‘prejudice,’ or 

that he is ‘actually innocent.’” Bousley v. United States, 523 U.S. 614, 622 (1998) 

(citations omitted).

Construing Badawi’s innocence claim as a challenge to the sufficiency of the 

evidence,1a claim cognizable in a § 2255 proceeding, he may proceed only “if the 

1 Badawi did not in his briefing rely on Herrera v. Collins to assert a 

“freestanding claim[] of actual innocence,” 506 U.S. 390, 401 (1993), nor does he 
3 

settled procedural prerequisites for such a claim have otherwise been satisfied.” 

Jackson v. Virginia, 443 U.S. 307, 324 (1979); see also United States v. Johnson, 

988 F.2d 941, 945 (9th Cir. 1993) (concluding that the defendant must demonstrate 

cause and prejudice to excuse the procedural default of an insufficiency-of-theevidence claim under § 2255). Ineffective assistance of trial counsel or counsel on 

direct appeal may constitute cause for procedural default. See Murray v. Carrier, 

477 U.S. 478, 488 (1986); United States v. Ratigan, 351 F.3d 957, 964–65 (9th Cir. 

2003) (applying Murray to a sufficiency-of-the-evidence claim raised in a § 2255 

petition); United States v. Withers, 638 F.3d 1055, 1064–65 (9th Cir. 2011)

(recognizing ineffective assistance of appellate counsel as “cause” for procedural 

default). To establish that counsel was constitutionally ineffective, petitioner must 

show (1) that counsel’s performance was deficient, and (2) that he was prejudiced 

by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). 

Badawi contends trial and appellate counsel were ineffective for failing to 

challenge his conviction under § 1097(a) on the ground that the government failed 

to prove the element of conversion. Although the statute does not refer to 

“conversion,” the Seventh and Eleventh Circuits have held that a conviction for 

allege that his innocence should serve as a “gateway” to excuse the default of 

another constitutional claim under Schlup v. Delo, 513 U.S. 298, 316 (1995). He 

did rely on Jackson v. Virginia, 443 U.S. 307, 309 (1979). We therefore construe 

his argument that he is factually innocent of financial aid fraud as a constitutional 

sufficiency-of-the-evidence challenge.
4 

“misappl[ying]” financial aid funds under 20 U.S.C. § 1097(a) requires proof of 

conversion, defined as “an act of dominion or control over the property that 

seriously interferes with the owner’s rights.” United States v. Kammer, 1 F.3d 

1161, 1165 (11th Cir. 1993), disapproved of on other grounds by Bates v. United 

States, 522 U.S. 23 (1997) (citation omitted); see United States v. Bates, 96 F.3d 

964, 968–70 (7th Cir. 1996); United States v. Weaver, 275 F.3d 1320, 1328–29

(11th Cir. 2001). The Supreme Court has not decided whether conversion is an 

element of misapplication under § 1097(a), although it mentioned the Seventh 

Circuit’s definition in Bates v. United States. 522 U.S. at 31 n.7. 

And, in analyzing a statute prohibiting the conversion of government 

property, 18 U.S.C. § 641, the Supreme Court noted that “[c]onversion may 

include misuse or abuse of property” and encompasses “use in an unauthorized 

manner or to an unauthorized extent of property placed in one’s custody for limited 

use.” Morissette v. United States, 342 U.S. 246, 272 (1952); see also United States 

v. Andreen, 628 F.2d 1236, 1241 (9th Cir. 1980) (citing Morissette’s definition in 

analyzing conversion of employee welfare assets under 18 U.S.C. § 664); United 

States v. Eriksen, 639 F.3d 1138, 1145, 1150 (9th Cir. 2011), as amended on denial 

of reh’g (May 23, 2011); United States v. Thordarson, 646 F.2d 1323, 1335 & n.22 

(9th Cir. 1981) (citing Morissette’s definition in interpreting conversion of union 

funds under 29 U.S.C. § 501(c)). 
5 

Considering that there is no language in the financial aid fraud statute 

referring to conversion, as well as the absence of binding precedent on whether 

conversion is a required element of misapplication under § 1097(a) and, if so, what 

conversion means in this context, Badawi’s counsel was not constitutionally 

deficient for failing to raise a defense on this ground.

2 The “failure to recognize 

every possible legal argument, including the arguably insufficient proof offered by 

the government as to one element of the crime, does not . . . constitute cause” to 

excuse procedural default. Ratigan, 351 F.3d at 965. 

Further, a defense attorney’s strategic choices are given “a heavy measure of 

deference,” Strickland, 466 U.S. at 691, and “a reviewing court is not free to 

engage in after-the-fact second-guessing of strategic decisions made by defense 

counsel,” United States v. Claiborne, 870 F.2d 1463, 1468 (9th Cir. 1989). “Once 

counsel reasonably selects a defense, it is not deficient performance to fail to 

pursue alternative defenses.” Rios v. Rocha, 299 F.3d 796, 807 (9th Cir. 2002).

Here, Badawi’s trial counsel argued that the defendant did not misapply Pell Grant 

funds because he was reimbursed for the plane ticket in cash, which he permissibly 

used for living expenses. The district court allowed that defense to go to the jury, 

although the defense did not prevail. Given counsel’s reasonable strategic choice, 

2 We make no ruling on the merits of whether conversion is a required 

element of misapplication of financial aid funds under § 1097(a).
6 

her conduct was not “error[] . . . so serious as to deprive [Badawi] of a fair trial,” 

Strickland, 466 U.S. at 687, and so does not constitute cause for the procedural 

default of the conversion interpretation of 20 U.S.C. § 1097(a) at trial and on direct 

appeal. 

In sum, no cause exists to excuse the default of a constitutional sufficiencyof-the-evidence challenge to the financial aid fraud conviction.

2. Badawi separately contends that trial counsel was ineffective for 

failing to object to and correct various misstatements of law concerning the 

financial aid fraud charge, and that appellate counsel was ineffective for failing to 

raise the same issues. The “failure to raise an ineffective-assistance-of-counsel 

claim on direct appeal does not bar the claim from being brought in a later, 

appropriate proceeding under § 2255.” Massaro v. United States, 538 U.S. 500, 

509 (2003).

Counsel was not constitutionally ineffective for failing to object to “lay legal 

opinion” testimony by a Department of Education employee that the recipient of a 

Pell Grant is not “allowed to use his own . . . funds to provide something to

someone else.” To establish prejudice under Strickland v. Washington, a defendant 

must show “there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” 466 U.S. at 694.

Here, other evidence was before the jury concerning the purpose of and limits on 
7 

the use of Pell grants. There is no reasonable probability that absent the contested 

testimony, the jury would have found that the use of Pell Grant funds to purchase a 

plane ticket for a friend was consistent with the terms of the grant.

Nor was counsel deficient for failing to object to the prosecution’s reliance 

in closing argument on the testimony of the Department of Education employee to 

argue that Badawi violated § 1097(a). The Ninth Circuit has “repeatedly held that, 

‘absent egregious misstatements,’ failing to object to error during closing argument 

falls within the ‘wide range’ of reasonable assistance.” Demirdjian v. Gipson, 832 

F.3d 1060, 1073 (9th Cir. 2016) (quoting Cunningham v. Wong, 704 F.3d 1143, 

1159 (9th Cir. 2013)). The prosecutor’s statements were not so “egregious” or 

“inflammatory” as to require correction. Zapata v. Vasquez, 788 F.3d 1106, 1116 

(9th Cir. 2015). 

Because counsel’s failure to object to the introduction of the testimony or 

the prosecution’s closing argument was not ineffective, counsel similarly was not 

deficient for failing to request jury instructions correcting the alleged errors, or to 

move for acquittal or for a new trial based upon the prosecution’s argument. 

Finally, because we have concluded that trial counsel did not fall below “prevailing

professional norms” for failing to challenge the sufficiency of the evidence 

concerning conversion, Strickland, 466 U.S. at 690, counsel was similarly not 

deficient for failing to request an instruction defining “misapplies.” 
8 

3. Finally, Badawi contends counsel was ineffective for failing to 

challenge his consecutive sentences for conspiracy and aiding and abetting an 

attempt to provide material support to a terrorist organization. Badawi argues that

U.S.S.G. § 5G1.2(d), which directs the court to impose consecutive sentences 

under the circumstances that exist here, conflicts with 28 U.S.C. § 994(l)(2), which 

directs the Sentencing Commission to “insure that the guidelines . . . reflect . . . the 

general inappropriateness of imposing consecutive terms of imprisonment for an 

offense of conspiring to commit an offense . . . and for an offense that was the sole 

object of the conspiracy.” 

The language of § 994(l)(2) refers to the “general inappropriateness” of 

consecutive sentences for conspiracy and its object; it does not prohibit provision 

for consecutive sentences in all circumstances. So recognizing, Badawi’s argument 

has been rejected by every circuit court directly to consider it. See United States v. 

Saccoccia, 58 F.3d 754, 786–87 (1st Cir. 1995); United States v. Kapaev, 199 F.3d 

596, 598 (2d Cir. 1999) (per curiam); United States v. Kleinebreil, 966 F.2d 945, 

952 (5th Cir. 1992); accord United States v. Wade, 788 F.2d 722, 722 (11th Cir. 

1986) (per curiam). Given that neither the language of the statute nor existing case 

law supports Badawi’s argument, defense counsel’s failure to make the argument

at sentencing did not “f[a]ll below an objective standard of reasonableness.”

Strickland, 466 U.S. at 688.
9 

AFFIRMED.