`NOT FOR PUBLICATION
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`UNITED STATES COURT OF APPEALS
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`FOR THE NINTH CIRCUIT
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`UNITED STATES OF AMERICA,
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` Plaintiff-Appellee,
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` v.
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`MARK J. AVERY,
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` Defendant-Appellant.
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` No. 21-35066
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`D.C. No.
`3:07-cr-00028-RRB-1
`
`
`MEMORANDUM*
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`Appeal from the United States District Court
`for the District of Alaska
`Ralph R. Beistline, District Judge, Presiding
`
`Argued and Submitted May 15, 2025
`San Francisco, California
`
`Before: N.R. SMITH and DE ALBA, Circuit Judges, and BENNETT,** District
`Judge.
`
` Defendant-Appellant Mark J. Avery (“Avery”) appeals the District of
`Alaska’s denial of his motions to vacate pursuant to 28 U.S.C. § 2255. “We review
`de novo a district court’s denial of relief under 28 U.S.C. § 2255.” United States v.
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` * This disposition is not appropriate for publication and is not precedent
`except as provided by Ninth Circuit Rule 36-3.
`
` ** The Honorable Richard D. Bennett, United States Senior District
`Judge for the District of Maryland, sitting by designation.
`FILED
`
`MAY 23 2025
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
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` 2
`Swisher, 811 F.3d 299, 306 (9th Cir. 2016) (en banc). The factual findings
`underlying the district court’s decision are reviewed for clear error. United States v.
`Seng Chen Yong, 926 F.3d 582, 589 (9th Cir. 2019). We affirm.
`1. To show ineffective assistance of appellate counsel, a defendant must prove
`deficient performance and resulting prejudice. See Strickland v. Washington, 466
`U.S. 668, 687 (1984). To establish prejudice, a defendant “must show a reasonable
`probability that, but for his counsel’s unreasonable failure . . . he would have
`prevailed on his appeal.” Smith v. Robbins , 528 U.S. 259, 285 (2000) (citing
`Strickland, 466 U.S. at 694). However, where (as here) the defendant would have
`challenged the jury instruction for the first time on direct appeal, we would have
`reviewed the instruction for plain error. United States v. Moreland, 622 F.3d 1147,
`1166 (9th Cir. 2010). “Plain error review requires us to find (1) an error that is (2)
`plain and (3) affects substantial rights.” Id. (quoting United States v. Kilbride, 584
`F.3d 1240, 1247 (9th Cir. 2009) ). To establish that an error affected substantial
`rights, a defendant must show a “high probability ” that the error affected the
`outcome of the proceeding. United States v. Fuchs, 218 F.3d 957, 962–63 (9th Cir.
`2000) (quoting United States v. Jerome, 942 F.2d 1328, 1331 (9th Cir. 1991)).
`On appeal, Avery raises a Strickland claim based on his appellate counsel’s
`failure to challenge the disjunctive instruction as outlined in Shaw v. United States,
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` 3
`580 U.S. 63 (2016), which was decided while his case was pending direct appeal. 1
`The government does not dispute appellate counsel’s deficient performance.
`However, Avery has not shown prejudice under Strickland, because he cannot show
`a reasonable probability that the disjunctive jury instruction affected his substantial
`rights. In United States v. Saini, 23 F.4th 1155 (9th Cir. 2022), we held that where
`intent to deceive and intent to cheat are intertwined—such as in a scheme to obtain
`money by deception—a defendant cannot show that the jury’s verdict would have
`been different with the conjunctive instruction. Id. at 1165. In this case, Avery’s
`purpose in deceiving his co-trustees regarding the details of the proposed investment
`plan was to cheat the May Smith Trust of millions of dollars that he then used for
`personal exp enditures. Similarly, his purpose in omitting the $50 million loan
`encumbering his business’s assets from his personal financial statement to Wells
`Fargo was to obtain a line of credit. As in Saini, Avery has “advanced no theory on
`which the jury could have found that he had intent to deceive but not cheat” or intent
`to cheat but not deceive. Id. Accordingly, he cannot show a high probability that
`the outcome of his trial would have differed with the proper instruction. See Fuchs,
`
`1 Under Shaw, intent to defraud as an element of wire fraud requires intent to deceive
`and cheat. See id. at 69. Similarly, under United States v. Miller, 953 F.3d 1095 (9th
`Cir. 2020), intent to defraud as an element of bank fraud requires intent to deceive
`and cheat. Id. at 1101. These cases were decided after Avery’s trial such that his
`jury received the now defunct, disjunctive instruction that intent to defraud requires
`intent to deceive or cheat.
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`218 F.3d at 962.
` 2. Avery seeks to expand the certificate of appealability to include his pro se
`claim of constructive denial of his Sixth Amendment right to counsel based on a
`severe breakdown of communications with his defense counsel prior to trial. To
`obtain a certificate of appealability, the defendant must establish “a substantial
`showing of the denial of a constitutional right.” Miller-El v. Cockrell, 537 U.S. 322,
`328, 335–37 (2003) (quoting 28 U.S.C. § 2253(c)(2) ). We decline to expand the
`certificate of appealability because Avery has not shown prejudice or facts sufficient
`to establish a presumption of prejudice as required to raise constructive denial of
`assistance of counsel under the Sixth Amendment. See Strickland, 466 U.S. at 683,
`687; Frazer v. United States , 18 F.3d 778, 783 (9th Cir. 1994) overruled on other
`grounds by Ellis v. Harrison , 891 F.3d 1160 (9th Cir. 2018) (recognizing
`presumption of prejudice based on counsel’s overt racial animus toward defendant).
`Specifically, Avery’s assertion that his counsel used abusive language toward him
`shortly before trial is not sufficient to establish a presumption of prejudice.
` AFFIRMED.
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