UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES,

v. 

CALEB GRAY-BURRISS,

Defendant. 

Case No. 10-cr-00178 (CRC)

MEMORANDUM OPINION

Defendant Caleb Gray-Burriss, proceeding pro se, filed a “Motion Pursuant to 18 U.S.C. 

§ 2255 to Vacate, Set Aside, or Correct Sentence” on April 13, 2020. See Motion to Vacate, 

ECF. No. 313. For the reasons explained below, the Court will deny the motion.

I. Background

A. Factual and Procedural History

This Court and the D.C. Circuit have laid out the factual and procedural background in

this case in several prior opinions. See United States v. Gray-Burriss, 791 F.3d 50 (D.C. Cir. 

2015) (“Gray-Burriss I”); United States v. Gray-Burriss, 251 F. Supp. 3d 13 (D.D.C. 2017) 

(Cooper, J.) (“Gray-Burriss II”); United States v. Gray-Burriss, 920 F.3d 61 (D.C. Cir. 2019) 

(“Gray-Burriss III”). Only those facts immediately relevant to the instant dispute are recounted 

here. 

Defendant Caleb Gray-Burris was convicted in 2012 of fraud and embezzlement arising 

from his management of the National Association of Special Police and Security Officers

(“NASPSO”), an organization which he founded in 1993. See Gray-Burriss I, 791 F.3d at 52–

53. In April 2013, the Court, through former Chief Judge Roberts, sentenced Gray-Burris to 76 
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months’ imprisonment and 36 months’ supervised release, and ordered him to pay $252,276.38

in restitution. See Minute Order April 8, 2013. 

Gray-Burriss appealed his conviction to the D.C. Circuit asserting, inter alia, that he 

received ineffective assistance of counsel and that the trial court erred by excluding an 

employment contract purporting to authorize certain salary payments to him. See Gray-Burriss I, 

791 F.3d at 54. After dealing with the other issues on appeal, the D.C. Circuit held that the 

exclusion of the employment contract was error and remanded the issue along with GrayBurriss’s ineffective assistance of counsel claims to the District Court in order to determine if the 

exclusion of the contract impacted Gray-Burriss’s loss or restitution amount. See id. at 58–59, 

65. On remand, Gray-Burriss moved for a new trial and resentencing. Gray-Burriss II, 251 F. 

Supp. 3d at 14–15. This Court conducted a two-day evidentiary hearing on the ineffective 

assistance and employment contract issues where Gray-Burriss’s previous lawyers, the former 

general counsel of the NASPSO, and Gray-Burriss himself testified. Gray-Burriss III, 920 F.3d 

at 64–65. The Court denied Gray-Burriss’s motions. Gray-Burriss II, 251 F. Supp. 3d at 15, 27. 

In addition to denying Gray-Burriss’s ineffective assistance claims, the Court rejected his

challenge to the loss and restitution amount ordered in the original sentence on the basis that he

had failed to “rebut the government’s evidence [on] or to offer any evidence to support the 

legitimacy of” the challenged employment contract. Id. at 27. The Court found that the 

restitution amount was proper and further concluded that the same sentence would have been 

warranted even if payments to Gray-Burris under the challenged contract had been subtracted 

from the loss amount. See Gray-Burriss III, 920 F.3d at 64 n.3 (noting that “[o]n remand, the 

district court determined that the same sentence was warranted, and Gray-Burriss has not raised 

that issue on appeal”). The D.C. Circuit affirmed. Id. at 69.
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Gray-Burriss filed the instant motion on April 13, 2020, challenging the restitution 

amount imposed in the sentence and citing essentially the same employment-contract grounds 

previously rejected. Compare Motion to Vacate at 10 (“I ask this court in the interest of justice

[to] reconsider the 2009 Employment Agreement”), with Gray-Burriss I, 791 F.3d at 54–61 

(describing the challenged employment contracts) and Gray-Burriss II, 251 F. Supp. 3d at 27 

(holding that Gray-Burriss had failed to bring forth any evidence sufficient to rebut the 

government’s showing regarding the 2009 employment contract).1

 Gray-Burriss also asks the 

Court to appoint him counsel. See Letter Filed by Caleb Gray-Burriss Regarding Request for 

Appointment of Counsel on 2255 Motion, ECF No. 314.

II. Analysis

A. Request for Habeas Relief

A “prisoner in [federal] custody” may petition the court to “vacate, set aside or correct” 

his sentence if he believes that it “was imposed in violation of the Constitution or laws of the 

 

1 To the extent that Gray-Burriss’s motion may be construed as addressing other factual

matters allegedly justifying a reduction in the restitution amount, the Court is procedurally barred

from considering them here, as Gray-Burriss failed to raise these challenges in either of his direct 

appeals. See Gray-Burriss I, 791 F. 3d at 54–61 (describing the employment contracts

challenged in Gray-Burriss’s first appeal); Gray-Burriss III, 920 F. 3d at 64 n.3 (noting that 

“Gray-Burriss has not raised [the issues related to the sentencing impact of the employment 

contracts] on appeal”). As the Supreme Court has explained “[w]here a defendant has

procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in 

habeas 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); see also United States v. Valdez, 199 F. Supp. 3d 13, 17 (D.D.C. 2016) (Cooper, J.) 

(describing the limitations on collateral review under 28 U.S.C. § 2255). Gray-Burriss’s motion 

does not purport to demonstrate any actual innocence on his part, and he has failed to cite or 

show any cause for his failure to raise these claims on direct appeal. Therefore, to the extent that 

his motion may be construed as challenging restitution amounts beyond those associated with the 

previously challenged employment contract, these claims are procedurally barred and denied.
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United States . . . or is otherwise subject to collateral attack[.]” 28 U.S.C. § 2255(a). The 

petitioner bears the burden of proof and must demonstrate by a preponderance of the evidence 

his right to relief. See United States v. Valdez, 199 F. Supp. 3d 13, 17 (D.D.C. 2016) (Cooper, 

J.).2 

Gray-Burriss cannot show that he is entitled to habeas relief here. It is well-established 

that “challenges to restitution orders are not cognizable under 28 U.S.C. § 2255.” United States 

v. Wilkins, 734 F. App’x 1, 5 (D.C. Cir. 2018), cert. denied, 139 S. Ct. 347 (2018). Because “a 

claim disputing a restitution order in the circumstances here does not challenge any aspect of the 

government’s custody over the defendant,” such claims “therefore may not be brought under 

§ 2255.” Id. While at points Gray-Burris uses the words “loss/restitution” in reference to the 

issue presented in his petition, see, e.g., Motion to Vacate at 3, the substance of his petition 

contests the restitution amount, and not any aspect of the underlying conviction or sentence, see, 

e.g., id. at 6 (“I Ask this court in its consideration of the Restitution Hearing issues credit in the 

amount which are mention[ed] in these counts.”). Thus, because Gray-Burriss’s petition only 

 

2 The Government treats the present motion as a second successive habeas petition, and 

argues for its denial on the basis that Gray-Burriss has not satisfied the demanding procedural 

requirements for such motions. See Gov’t Response in Opposition to Defendant’s Second 

Motion for Relief Under Section 2255, ECF. No. 316 at 5–6. While the Court notes that the 

docket appears to list a motion filed during the pendency of the 2016 remand and evidentiary 

hearings as a habeas proceeding, see Supplement Motion to Consider Claims of Ineffective 

Assistance of Counsel, ECF No. 282, neither this Court nor the D.C. Circuit treated those 

proceedings as involving collateral review, see Gray-Burriss II, 251 F. Supp. 3d at 15, 27; GrayBurriss III, 920 F. 3d at 69. As such, the Court will not treat Gray-Burriss’s instant motion as a 

second successive habeas petition.
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concerns the restitution amount imposed at sentencing, the Court will deny his motion for habeas 

relief under Section 2255.3

B. Appointment of Counsel

“In habeas corpus proceedings, the Court may appoint counsel ‘for any financially 

eligible person who . . . is seeking relief under section . . . 2255 of title 28’ if ‘the interests of 

justice so require.’” Valdez, 199 F. Supp. 3d at 16 (quoting 18 U.S.C. § 3006A(a)(2)(B)). In 

determining whether appointment of counsel serves the interests of justice, courts must consider:

1) the petitioner’s likelihood of success on the merits, 2) the ability of the 

petitioner to articulate his claims pro se in light of the complexity of the legal 

issues involved, and 3) the factual complexity of the case and whether the 

petitioner has the ability to investigate undeveloped facts.

Id. (quoting United States v. King, 4 F. Supp. 3d 114, 125 (D.D.C. 2013)).

Considering these factors here, each weighs against the appointment of counsel. See id.

at 21. As explained above, the Court has rejected each of Gray-Burriss’s claims, and he thus 

fails to demonstrate a likelihood of success on the merits. Additionally, while Gray-Burriss’s 

filing is not a model of clarity, the Court has no trouble determining the core of his claims. 

Finally, and as explained above, the factual issues of relevance here have already been explored 

in lengthy prior proceedings, leaving few, if any, undeveloped facts to investigate. Therefore, 

 

3 Even if construed as a challenge to the loss amount underlying the Guidelines 

calculation at sentencing, and even accepting that Gray-Burriss was entitled to have the entire 

amount of the employment contract excluded from the loss calculation, the sentence ordered 

would not have differed. See Gray-Burriss III, 920 F. 3d at 64 n.3 (noting that “[o]n remand, the 

district court determined that the same sentence was warranted”). Indeed, as the D.C. Circuit 

stated, the $27,000 in loss represented by the disputed contract would not have altered GrayBurriss’s Sentencing Guidelines range. See Gray-Burriss I, 791 F. 3d at 59 n.3. Nothing GrayBurriss presents in his instant filing alters either of these conclusions. Therefore, to the extent 

his petition may be construed as challenging the loss amount relied upon at sentencing, the Court

re-affirms that the ultimate sentence would not have differed even if the challenged contract 

amounts had been excluded from the loss calculation.
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the Court determines that appointment of counsel at this stage would not be in the interests of 

justice. 

III. Conclusion--

For the foregoing reasons, the Court will deny Gray-Burriss’s Motion to Vacate Under 28 

U.S.C. § 2255 and Gray-Burriss’s Letter Motion Requesting Appointment of Counsel. A 

separate Order shall accompany this memorandum opinion.

CHRISTOPHER R. COOPER

United States District Judge

Date: October 5, 2020