OPINION AND ORDER

JON E. DeGUILIO, District Judge.

Defendant Wanda C. Shorter was convicted by a jury of committing health care fraud (Count 1) and aggravated identity theft (Counts 2-4).1 She was sentenced to seventy-five months of imprisonment (which represented the low end of the applicable guideline range)2 and two years of supervised release. Shorter was also ordered to pay restitution to Indiana Medicaid in the agreed amount of $1,340,284.32. On appeal, Shorter challenged in relevant part the sufficiency of the evidence as to Counts 2-4, but the Seventh Circuit rejected this argument because "the government submitted a substantial amount of evidence to support the convictions for Counts 2-4." United States v. Shorter, 874 F.3d 969, 977-78 (7th Cir. 2017).

Shorter now seeks to vacate her convictions and sentence under 28 U.S.C. § 2255. She argues that her attorney, Mr. Jay Stevens, was ineffective during trial for failing to object to the admission of the government's summary Exhibits 35 and 40. Shorter also alleges that Mr. Stevens was ineffective during sentencing for: (1) failing to object to her receipt of a two-level enhancement under guideline § 3B1.3 for abusing a position of trust; and (2) failing to advise her of the supervised release conditions proposed by the presentence investigation report [DE 84, hereinafter, "PSR"] in paragraphs 89-99.

For the following reasons, the Court finds that Shorter is not entitled to relief and that no hearing is required on these claims, so it denies the petition. Lafuente v. United States, 617 F.3d 944, 946 (7th Cir. 2010) ("A hearing, though, is not required when `the files and records of the case conclusively show that the prisoner is entitled to no relief'") (quoting 28 U.S.C. § 2255(b)).

I. FACTUAL BACKGROUND

In early 2011, Shorter, already a licensed nurse, formed Empowerment Non-Emergency Medical Transportation, Inc. to provide transportation services to Medicaid clients. In April 2011, Shorter began submitting invoices for Empowerment's services. Indiana Medicaid provides reimbursements for health-related transportation services to eligible patients. The provider of those services agrees to follow Medicaid's billing policies and to seek reimbursement for only medically necessary and truly rendered services. To ensure compliance, transportation providers must submit bills by using a unique Medicaid provider identification number and must maintain trip tickets that include the recipient's name and identification number, date of transport, type of services rendered, whether it was one-way or round trip, and the mileage driven. Each type of service is assigned a Medicaid code used for reimbursement.3 The service provider submits the applicable codes to Medicaid, which reimburses according to set rates specific to the type of service provided. For instance, Medicaid reimburses twice as much if the patient is wheelchair-bound, and it provides additional reimbursement without prior authorization when an attendant also rides or when rides are more than twenty but fewer than one hundred miles round-trip. Empowerment billed and received Medicaid reimbursements using these codes until early 2014.

To prove that Shorter was guilty of the charges, the government submitted the following evidence, as summarized by the Seventh Circuit on Shorter's direct appeal:

United States v. Shorter, 874 F.3d 969, 972-73 (7th Cir. 2017). For her part, Shorter's defense was emphasized through cross-examination of the witnesses where Mr. Stevens attempted to convey that Shorter denied being responsible for Empowerment's billing errors and for the drivers' failure to submit adequately documented trip tickets. Despite this, the jury convicted Shorter on all counts.

At sentencing, Shorter admitted under oath that she had received and reviewed a copy of the PSR, which included the proposed conditions of supervised release along with their justifications. She also acknowledged that she had discussed these matters with Mr. Stevens. Mr. Stevens lodged a single objection to the PSR with respect to the loss amount and successfully obtained a two-level deduction from the sixteen-level enhancement proposed by the PSR. Shorter also received uncontested two-level enhancements for defrauding a government health care program of over one million dollars and for abusing a position of public trust. The Court then rejected Mr. Stevens' request pursuant to 18 U.S.C. § 3553 for imposition of a below guideline sentence; and instead, the Court imposed a sentence at the low end of the applicable guideline range. Shorter unsuccessfully appealed her conviction and then timely filed a motion to vacate her convictions and sentence under 28 U.S.C. § 2255. Her motion has been fully briefed and the Court GRANTS her unopposed request to supplement her original motion [DE 134].

II. STANDARD OF REVIEW

Section 2255(a) of Title 28 provides that a federal prisoner "claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). The Seventh Circuit has recognized that § 2255 relief is appropriate only for "an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004). Relief under § 2255 is extraordinary because it seeks to reopen the criminal process to a person who has already had an opportunity of full process. Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007) (citing Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006)).

III. DISCUSSION

Shorter offers three grounds in support of her motion which rely only on her sworn statements. First, she argues that government's summary Exhibits 35 and 40 are inaccurate because the underlying billings or invoices (which Shorter has not provided; indeed, has not even identified) would show that Medicaid was never billed by Empowerment for transportation services; and therefore, Mr. Stevens ought to have objected to their admission at trial. Second, Shorter alleges that she should not have received a two-level enhancement for abusing a position of trust; and therefore, Mr. Stevens ought to have objected to application of the enhancement at sentencing. Third, Shorter contends that Mr. Stevens failed to warn her that the Court intended to impose overly broad and inapplicable supervised release conditions; and therefore, Mr. Stevens should not have waived the Court's reading of those conditions at sentencing. Shorter makes each of these arguments through the lens of an ineffective-assistance-of-counsel claim.

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. To prevail on a claim of ineffective assistance of counsel, a defendant must show: (1) that her counsel's performance was deficient, meaning that it fell below an objective standard of reasonableness; and (2) that she was prejudiced by the deficiencies in her counsel's performance, meaning that there is a reasonable probability that the results of the proceeding would have been different with effective representation. Strickland v. Washington, 466 U.S. 687 (1984). To demonstrate prejudice in the trial context, Shorter must show that trial counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Cooper v. United States, 378 F.3d 638, 642 (7th Cir. 2004). In the sentencing context, a defendant must show that there is a reasonable probability that the results of the sentencing hearing would have been different but for the ineffective assistance. Fuller v. United States, 398 F.3d 644, 650 (7th Cir. 2005).

A. Summary Exhibits 35 and 40

Shorter contends she received ineffective assistance because her attorney failed to object to the admission of government Exhibits 35 and 40 (and instead, stipulated to their admission), despite knowledge that the underlying documents were not going to be identified by a testifying witness or admitted into evidence at trial. Exhibits 35 and 40 consist of charts that summarize Empowerment's Medicaid billings for Cassamdra Cook and Chitika Cox. Shorter alleges that these summary exhibits are inaccurate because the actual bills or invoices underlying Counts 2-4 were either (1) never sent to Medicaid; or, (2) if sent to Medicaid, then the bills were for medical services provided by physicians and not transportation services rendered by Empowerment (despite evidence of payment from Medicaid to Empowerment). Again, Shorter makes these contentions without further documentary proof or even specific reference to the documents.

In response, the government submits the affidavit of Mr. Stevens who attests that the decision not to attack the underlying documents was a matter of trial strategy because the documentary evidence of erroneous billings was overwhelming [DE 131-1]. They also argue that Shorter authorized the stipulation. Thus, the trial strategy adopted was to let Exhibits 35 and 40 come into evidence without objection, while arguing that Shorter had no intention to defraud the government; rather, any errors were the result of confusion or were someone else's doing.

Shorter retorts [DE 134] that she never agreed to the admission of these summary exhibits without questioning their authenticity and that Mr. Stevens should have conducted additional investigation into the underlying documents. She makes this argument even though she was present during the final pretrial conference where the stipulation4 regarding the authenticity of the exhibits was discussed and agreed upon.

As explained below, the Court resolves this issue on the trial record alone without reliance on Mr. Stevens' affidavit which was submitted by the government in response to the § 2255 petition. First, and generally speaking, summary exhibits need not be supported by the separate admission of their underlying documents. Second, even had Mr. Stevens lodged an objection to the admission of Exhibits 35 and 40, the government's other trial evidence amply supports Shorter's convictions (and in fact, further supports the accuracy of Exhibits 35 and 40).

The documents underlying government Exhibits 35 and 40 were not admitted into evidence, but they did not have to be. Federal Rule of Evidence 1006 allows a court to admit into evidence summaries of "voluminous writings . . . that cannot conveniently be examined in court," provided that all parties have had an opportunity to examine the documents summarized. Rule 1006 does not require admission of the documents underlying a summary exhibit; indeed, the rule's purpose is to obviate the admission of voluminous documents. Committee Comment to Seventh Circuit Pattern Criminal Jury Instruction 3.16. Nor does Shorter contend that the defense did not have the opportunity to examine the documents underlying Exhibits 35 and 40. Thus, any objection to Exhibits 35 and 40 premised on the fact that not all of the underlying documents were identified by a witness or offered into evidence would have been meritless (assuming for a moment the accuracy of the summary exhibits). As a result, Mr. Stevens' performance was not deficient in this respect, nor could his lack of an objection have influenced the outcome of Shorter's trial. See Hough v. Anderson, 272 F.3d 878, 898 (7th Cir. 2001) ("If evidence admitted without objection was admissible, then the complained of action fails both prongs of the Strickland test: failing to object to admissible evidence cannot be a professionally `unreasonable' action, nor can it prejudice the defendant against whom the evidence was admitted.").

Yet, the Court must also address Shorter's claim that the actual billing documents or invoices underlying Exhibits 35 and 40 (which have not been submitted or identified) would have proven the inaccuracy of these summary exhibits. More specifically, she claims that the billings which were the subject of Counts 2-4 were never summitted to Medicaid by Empowerment, and so they should have been presented to the jury for its consideration. However, Shorter's allegations are belied by the trial record beyond Exhibits 35 and 40.

Investigators with the Office of the Indiana Attorney General's Medicaid Fraud Control Unit, Lisa Sweatland and Sandy Weston, testified during trial. These witnesses acknowledged that they personally analyzed the trip tickets seized during the execution of the search warrant on Empowerment (government's Exhibit 20) and compiled various summaries of Empowerment's Medicaid billings. They further provided testimony that was consistent with the billings and payments reflected in government's Exhibit 19.5

Relevant to Count 2, their testimony established personal familiarity with trip tickets dated August 7, 2012 and August 21, 2012 for Cassamdra Cook, which were introduced into evidence as government's Exhibit 18. The investigators' testimony (and the trip tickets) revealed that the August 7th trip was for a one-way transport because Cook was getting a ride home from someone else, while the August 21st trip was supported by documented mileage for only oneway. Despite this evidence, government's Exhibit 19 (which Shorter does not contest the accuracy of) revealed that Empowerment billed Medicaid using its Medicaid provider number on August 9th for the August 7th trip and on August 24th for the August 21st trip, and that those billings were for round-trip transport of a nonambulatory client, Medicaid recipient Cassamdra Cook. These round-trip billings were submitted to Medicaid by Empowerment despite Cook's trial testimony that she only took one-way trips with Empowerment and never needed a wheelchair. Testimony by Cook's mother, Clara Jones, corroborated the fact that Cook only took one-way trips because she drove Cook home.

Relevant to Counts 3 and 4, the investigators' testimony established personal familiarity with trip tickets dated June 10, 2013 and June 19, 2013 for Chitika Cox, which were introduced into evidence as government's Exhibit 18. The investigators' testimony revealed that Cox's June 10th trip ticket indicated that the trip was canceled. But based on their investigation, it was discovered that Empowerment had in fact billed Medicaid (under the name of Chitika Cox using Empowerment's Medicaid identification number) on August 16, 2013, for round-trip transportation of a nonambulatory client with an accompanying attendant. In addition, although the June 19th trip ticket indicated that Cox did not come outside to catch her ride, on June 21, 2013, Empowerment billed Medicaid for services rendered. And per government's Exhibit 19, Empowerment billed Medicaid in June 2013 for at least eight round-trips of a nonambulatory client using Cox's Medicaid information. Ultimately, the testimony of Cox established that she canceled many trips, did not require an attendant, and only used a wheelchair for a very short time at the end of 2013.

Accordingly, even if the Court had sustained an objection to government Exhibits 35 and 40, the government's other trial evidence amply supports Shorter's convictions. In other words, subtracting Exhibits 35 and 40 from the government's proof would not have altered the overwhelming weight of evidence submitted against Shorter at trial. Alternatively, the testimony and other exhibits introduced at trial support the accuracy of Exhibits 35 and 40, and any objection to their admission would have been frivolous. Thus, Shorter fails to establish that she was prejudiced by her attorney's decision not to object to government Exhibits 35 and 40. Her ineffective assistance claim on that ground fails.

B. Sentencing Enhancement for Abuse of Trust

Shorter next argues, without much explanation, that Mr. Stevens should have objected to the Court's imposition of a sentencing enhancement for abusing a position of trust consistent with guideline § 3B1.3. The Court surmises that Shorter's contention appears based on the already rejected argument that had Mr. Stevens objected to the admission of government Exhibits 35 and 40, then she would not have been convicted of Counts 2-4. And in turn had she not sustained convictions for aggravated identity theft, then she would not have received the sentencing enhancement.

But the Court has already concluded that Shorter's convictions for aggravated identity theft were amply supported by the trial record. Accordingly, for the reasons previously stated, the Court concludes that Shorter is unable to succeed on her ineffective assistance claim in this respect.

Moreover, the enhancement was properly applied and can't support a claim of ineffectiveness. A two-level enhancement under § 3B1.3 applies if "the defendant abused a position of public or private trust" in committing the offenses. The application notes state "an adjustment under this guideline shall apply to the following: . . . [a] defendant who exceeds or abuses the authority of his or her position in order to obtain, transfer, or issue unlawfully, or use without authority, any means of identification." § 3B1.3 n.2(B). "Means of identification" has the meaning given that term in 18 U.S.C. § 1028(d)(7). Id. In turn, § 1028(d)(7) indicates that "means of identification" includes "any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any—(A) name, . . . [or] official State or government issued driver's license or identification number."

The facts of this case fall plainly within the scope of application note 2(B). Shorter abused the authority of her position as owner of Empowerment by using more than five hundred Medicaid patients' identifying information, without authority, to file fraudulent claims for payment on behalf of her company. See, e.g., United States v. Abdelshafi, 592 F.3d 602, 611-12 (4th Cir. 2010) (applying an abuse of trust enhancement based on the commentary in application note 2 to a defendant who abused the authority of his position by using Medicaid patients' identifying information, without authority, to file fraudulent claims for payment). Furthermore, Shorter's abuse of trust significantly facilitated her commission of aggravated identity theft, as it granted her access to the patient identifying information necessary to file fraudulent billing claims. See id.

Given this, Mr. Stevens had "no duty to make a frivolous argument" by objecting to the abuse of trust enhancement, United States v. Rezin, 322 F.3d 443, 446 (7th Cir. 2003), overruled on other grounds, and indeed was barred by the rules of professional ethics from doing so, see Smith v. Robbins, 528 U.S. 259, 272 (2000). Thus, Shorter has failed to present any non-frivolous objection that her trial counsel failed to make to the abuse of trust sentencing enhancement that would have resulted in a more favorable sentence. See Fuller, 398 F.3d at 651-52. Because there is no merit to the claim that Mr. Stevens' performance was deficient and because there is a complete failure to demonstrate any possibility that Shorter suffered prejudice as a result of her trial counsel's performance during sentencing, her § 2255 motion cannot succeed in this respect.

C. Supervised Release Conditions

Finally, Shorter argues that Mr. Stevens rendered ineffective assistance in connection with the explanation provided regarding her supervised release conditions. But this argument is easily dispensed with as lacking merit.

First, the dispositive facts underlying this claim have already been addressed at a hearing—the sentencing hearing—and Shorter's sworn statements at that hearing preclude relief on this claim. After Shorter took an oath to tell the truth, the following exchange took place during her sentencing hearing:

[DE 106 at 5]. And later during the sentencing hearing, this was said:

[DE 106 at 78-80].

Shorter does not attempt to account for these previous sworn statements which indicate that she reviewed and discussed with her attorney the conditions of supervision and the rationales for them. The record also shows that she discussed with Mr. Stevens whether to waive their re-reading by the Court. Accordingly, the Court need not (and does not) consider Mr. Stevens' affidavit in reaching its conclusion that Shorter is not entitled to a new hearing on her § 2255 petition to show that she perjured herself at a prior hearing. See, e.g., Thompson v. United States, 732 F.3d 826, 829 (7th Cir. 2013); United States v. Peterson, 414 F.3d 825, 827 (7th Cir. 2005).

In addition, Shorter fails to point out a single problematic condition, or how a re-reading of those conditions already listed in the PSR would have assisted her. Nor has Shorter bothered to provide an explanation as to why she believes any particular condition was inappropriately imposed. Thus, Shorter has not presented sufficient facts to support her claim. Having said that, should Shorter's circumstances change such that a specific condition ought to be reconsidered, nothing prevents her from seeking an amendment of the conditions consistent with 18 U.S.C. § 3583(e). United States v. Neal, 810 F.3d 512, 516 (7th Cir. 2016). Ultimately, Shorter is unable to show that Mr. Stevens acted deficiently with respect to her supervised release conditions, or that she suffered some prejudice relative to their imposition. Therefore, the Court denies Shorter's motion.

IV. CERTIFICATE OF APPEALABILITY

Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings for the United States District Courts, the Court must "issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability may be issued "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c); Rule 11, Rules Governing Section 2255 Proceedings for the United States District Courts. The substantial showing standard is met when "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)); see Young v. United States, 523 F.3d 717 (7th Cir. 2008). Here, for the reasons just discussed, the Court does not find that Shorter has made a substantial showing of the denial of any constitutional rights, or that any issues in this motion are adequate to deserve encouragement to proceed further. The Court therefore denies the issuance of a certificate of appealability.

The Court advises Shorter that pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, when the district judge denies a certificate of appealability, the applicant may request a circuit judge to issue the certificate. The Court further advises Shorter that any notice of appeal of this judgment must be filed within 60 days after the judgment is entered. Fed. R. App. P. 4(a); Guyton v. United States, 453 F.3d 425, 427 (7th Cir. 2006) (stating that "the time to contest the erroneous denial of [the defendant's] first § 2255 motion was within 60 days of the decision").

V. CONCLUSION

For the reasons stated herein, the Court GRANTS Shorter's motion to supplement [DE 134], DENIES her motion for relief under § 2255 [DE 120], and DENIES the issuance of a certificate of appealability. The Clerk is DIRECTED to enter judgment accordingly.

SO ORDERED.