John R. Toney - Page 9

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               Petitioner opposes collateral estoppel.  Petitioner also               
          argues that he did not have a fair opportunity to contest the               
          $14,611 figure at trial in the criminal proceeding and that he              
          received ineffective assistance of counsel in the criminal                  
          proceeding.                                                                 
               Collateral estoppel precludes relitigation of any issue of             
          fact or law that was actually litigated and necessarily                     
          determined by a valid and final judgment.  Montana v. United                
          States, 440 U.S. 147, 153 (1979).  Collateral estoppel applies              
          when “(1) there was a full and fair opportunity to litigate the             
          issue in the previous action; (2) the issue was actually                    
          litigated in that action; (3) the issue was lost as a result of a           
          final judgment in that action; and (4) the person against whom              
          collateral estoppel is asserted in the present action was a party           
          or in privity with a party in the previous action”.  In re                  
          Palmer, 207 F.3d 566, 568 (9th Cir. 2000) (quoting Pena v.                  
          Gardner, 976 F.2d 469, 472 (9th Cir. 1992); Parklane Hosiery Co.            
          v. Shore, 439 U.S. 322, 329 (1979)).                                        
               We are satisfied that the issue in the present case                    
          regarding fraudulent intent is the same as the issue that was               
          presented and determined adversely against petitioner in the                
          criminal case.  The underlying issue in this case is that of                
          fraud.  Petitioner’s prior conviction was based on fraud; i.e.,             
          the charge of his knowingly and willfully attempting to evade               






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