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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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