How a Written Jury Waiver Affects a § 2255 Motion

In the Ninth Circuit, a written jury-trial waiver is presumed to be voluntary, knowing, and intelligent. A later motion under 28 U.S.C. § 2255 has to overcome that presumption. On October 29, 2026, the court applied the rule in United States v. Eltareb, No. 24-6029 (Read the decision (PDF)). It affirmed the denial of Hussien Fawas Eltareb's motion.

The memorandum is marked "NOT FOR PUBLICATION." Under Ninth Circuit Rule 36-3(a), an unpublished disposition is not precedent, except when law of the case or preclusion makes it relevant. Rule 36-3(b) allows an unpublished disposition issued on or after January 1, 2007, to be cited to the courts of the circuit, consistent with Federal Rule of Appellate Procedure 32.1. This memorandum may be cited. It does not bind a later panel. Other circuits follow their own law.

What the court decided

Eltareb was convicted after a bench trial of federal drug and firearm offenses. The district court sentenced him to 15 years in prison. In 2021, the Ninth Circuit affirmed the conviction and sentence on direct appeal. United States v. Eltareb, 853 F. App'x 128 (9th Cir. 2021). He later filed a § 2255 motion in the Central District of California, No. 5:21-cv-01733-JGB, challenging the judgment in criminal case No. 5:17-cr-16-JGB-2.

The court of appeals granted a certificate of appealability on two questions. 28 U.S.C. § 2253. The first was whether the jury-trial waiver was knowing, voluntary, and intelligent. The second was whether trial counsel was ineffective for failing to advise him adequately of the right to a jury trial. The memorandum states that a denial of a § 2255 motion is reviewed de novo, and that a denial of an evidentiary hearing is reviewed for abuse of discretion. United States v. Gordon, 151 F.4th 1090, 1097 (9th Cir. 2025).

On the waiver, the court held that Eltareb did not overcome the presumption that his written waiver was "a voluntary, knowing, and intelligent one." United States v. Cochran, 770 F.2d 850, 851 (9th Cir. 1985). His main argument was that the waiver was invalid because he did not know the district court would later admit expert testimony. The court said that later ruling does not bear on whether the waiver was voluntary, knowing, and intelligent. What matters is that he understood "the nature and import of the right he was waiving." United States v. Shorty, 741 F.3d 961, 969 (9th Cir. 2013).

Cochran urged trial judges to cover four facts before accepting a waiver. It did not require them to do so. United States v. Ceja, 23 F.4th 1218, 1224 (9th Cir. 2022). The four facts are:

• A jury is made up of 12 members of the community.
• The defendant may take part in jury selection.
• A jury verdict must be unanimous.
• If the defendant waives a jury, the judge alone decides guilt or innocence.

Eltareb's declaration said he understood that there would be no jury and that a judge would decide the case. He also understood that a jury has 12 people. He was not made aware of two of the four facts: that he could take part in jury selection, and that a jury verdict must be unanimous. The court held that those gaps did not make the waiver invalid on this record. It pointed to Ceja. There, the Ninth Circuit said the four-fact colloquy is required when a defendant's mental or emotional state is a salient fact that puts the judge on notice the waiver may not be knowing and intelligent. 23 F.4th at 1224.

The advice claim failed for related reasons. A claim of ineffective assistance of counsel requires proof that counsel's representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 688 (1984). The memorandum held that Eltareb had not made that showing. It did not discuss prejudice. The Strickland page explains both parts of the test.

The district court also denied an evidentiary hearing. Section 2255(b) requires a prompt hearing unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. The court of appeals held that refusing a hearing was not an abuse of discretion, because the record met that test.

That holding is about this record. On October 19, 2026, in United States v. Anderson, the same court required a hearing when the prisoner and his lawyer gave conflicting sworn statements about a request for an appeal, and the files did not settle the dispute. In Eltareb, the court treated the files and records as conclusive.

What a written jury waiver requires

When the defendant is entitled to a jury, Federal Rule of Criminal Procedure 23(a) says the trial must be by jury unless three things are true. The defendant waives a jury trial in writing. The government consents. The court approves. The right to a jury trial in a criminal prosecution is in the Sixth Amendment.

Cochran is the Ninth Circuit case this memorandum used for the presumption that attaches to a written waiver. The four facts above are the colloquy Cochran urged and Ceja described as not mandatory. A guilty plea is a different waiver. Plea-hearing answers are covered in a separate note.

What to check before filing

This memorandum is not binding precedent. The statute and the cases the court applied still point to four checks.

• Read the written waiver. Rule 23(a) asks for a writing, the government's consent, and the court's approval. The Cochran presumption is about that kind of waiver.

• Separate a later ruling from the waiver itself. Not knowing that the judge would later allow expert testimony did not undo this waiver. The question was whether Eltareb understood the right he was giving up.

• Compare the colloquy with the four facts. Missing the points about jury selection and a unanimous verdict did not invalidate this waiver. Ceja says the fuller colloquy is required when mental or emotional state is a salient fact that puts the court on notice. 23 F.4th at 1224.

• Match a hearing request to the record. If the files conclusively show no relief, § 2255(b) does not require a hearing. If sworn accounts conflict on a fact that matters, Anderson is the recent Ninth Circuit example the other way.

Get the written waiver, the transcript of the hearing where the court accepted it, and the order that denied the § 2255 motion. Book a consultation and tell us what happened.