MAX O. COGBURN, JR., District Judge.
Petitioner was indicted for conspiring with Joye Strong in a health care fraud conspiracy with: Count (1), health care fraud conspiracy; Counts (2)-(5), health care fraud; Counts (6)-(9), false statements relating to health care matters; Counts (10)-(17), aggravated identity theft; Count (18), money laundering; and Count (19), false statements. (3:13-cr-160, Doc. No. 1). A jury found him guilty of all counts. (
The Presentence Investigation Report ("PSR") calculated the total offense level for Counts (1)-(9), (18), and (19) as 24. This resulted from using the conspiracy base offense level of six and adding 14 levels for a reasonably foreseeable loss amount between $400,000 and $1,000,000, two levels for abusing a position of trust, and two levels for obstruction of justice. (
Defense counsel filed written Objections to the PSR arguing, inter alia, that enhancements for obstruction of justice and abusing a position of trust should be removed. (
(3:13-cr-160, Doc. No. 44 at 8).
Counsel asked Petitioner for his objections, which he emailed to her. (3:13-cr-160, Doc. No. 44 at 3). However, the only objection she received was Petitioner was his denial that he was "working with this lady and her companies," (3:13-cr-160, Doc. No. 44 at 9), which counsel determined would not impact the sentence, so she filed objections that she felt were appropriate. (3:13-cr-160, Doc. No. 44 at 6). Petitioner acknowledged that he understood what counsel said about his objections having no effect on the guidelines. (3:13-cr-160, Doc. No. 44 at 7).
The Court overruled Petitioner's PSR objections and imposed a below-guideline sentence of 63 months' imprisonment, comprised of 39 months on each of Counts (1)-(9), (18) and (19), concurrent, and 24 months on each of Counts (10)-(17), concurrent with each other but consecutive to Counts (1)-(9), (18), and (19). (
Petitioner argued on direct appeal that the Government committed plain error by vouching for the credibility of a cooperating co-conspirator during closing argument. The Fourth Circuit Court of Appeals affirmed.
Petitioner filed the original § 2255 Motion to Vacate in the instant case on August 29, 2016, arguing that counsel was ineffective during trial preparation, at trial, and at sentencing. (Doc. No. 1). On May 1, 2017, he filed the Amended § 2255 Motion to Vacate which re-alleges the ineffective assistance claims and adds a claim of prosecutorial misconduct. (Doc. No. 4).
A federal prisoner claiming that his "sentence was imposed in violation of the Constitution or the laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a).
The Sixth Amendment to the U.S. Constitution guarantees that in all criminal prosecutions, the accused has the right to the assistance of counsel for his defense.
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with "any attached exhibits and the record of prior proceedings . . ." in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the arguments presented by Petitioner can be resolved without an evidentiary hearing based on the record and governing case law.
Petitioner contends that counsel failed to adequately investigate potential witnesses, subpoena them, and call them at trial. Petitioner gave counsel the names of the witnesses during pre-trial investigation stages but counsel never interviewed or called them. They would have testified at trial and their testimony would have been "greatly beneficial" to Petitioner's case. (Doc. No. 1 at 19).
This claim is too vague and conclusory to support relief because Petitioner fails to identify the individuals whom counsel allegedly should have investigated and called to testify and has not proffered their testimony. Therefore, this claim cannot support relief.
Petitioner argues that counsel provided ineffective assistance at his trial by failing to: (i) demand that the prosecutor produce W-2 tax forms or receipts of deposits into any account controlled by Petitioner, which would have established that no such documents existed and would have exonerated Petitioner; (ii) correct the prosecutor's assertion that Petitioner and co-defendant Joye Strong are blood relatives and had an employer-employee relationship; (iii) have a handwriting expert examine the signed docs that the prosecutor was using to prove Petitioner's guilt. An independent handwriting expert would have established that the signatures were not Petitioner's which would suggest he was not guilty of participating in any fraud scheme; and (iv) introduce a chain of emails that could have helped exonerate Petitioner, that counsel lost the emails, and now Petitioner does not know where they are.
(i) First, counsel cannot be deemed ineffective for failing to request from the Government documents that, Petitioner admits, do not exist.
(ii)-(iv) Petitioner's remaining claims are facially insufficient to support relief. Petitioner fails to explain why challenging the existence of a familial or employer-employee relationship between himself and Strong, having a handwriting expert testify at trial, or introducing a chain of emails at trial, would have been helpful to the defense and probably would have resulted in a different trial outcome.
Petitioner contends that counsel was ineffective with regards to sentencing by (i) failing to give Petitioner a copy of the PSR seven days before sentencing pursuant to Rule 32, which deprived him of the opportunity to object to "any errors, discrepancies, or miscalculations of the applicable guidelines," and led to "needless and inapplicable sentencing enhancements," (Doc. No. 1 at 18); and (ii) failing to object to adjustments to the guideline range for abuse of position of trust and obstruction of justice even though they are clearly inapplicable, both of which increased his sentence.
(i) First, Petitioner contends that counsel was ineffective for failing to timely provide him with a copy of the PSR.
Rule 32 requires the probation officer to "give the presentence report to the defendant, the defendant's attorney, and an attorney for the government at least 35 days before sentencing" unless that period is waived. Fed. R. Crim. P. 32(e)(2). The probation officer "must submit to the court and to the parties the presentence report and an addendum containing any unresolved objections, the grounds for those objections, and the probation officer's comments on them," at least seven days before sentencing. Fed. R. Crim. P. 32(g).
The Draft PSR was docketed on September 4, 2014, 94 days before the December 10, 2014, sentencing hearing. (3:13-cr-160, Doc. No. 26). The Final PSR was docketed on September 30, 2014, and the Probation Officers' Revised Recommendation was filed on October 3, 2014, 72 and 68 days before the sentencing hearing, respectively.
Petitioner's claim that he did not timely receive a copy of the PSR is refuted by the sentencing hearing transcript. Counsel noted on the record that Petitioner was provided with the PSR via email on the same day it was filed. Petitioner agreed at the hearing that he was familiar with the PSR, went over it with counsel via email, and raised objections with counsel. The record also indicates that the Final PSR was docketed well more than seven days before trial. The record does not specifically show the date on which Petitioner received the Final PSR. However, assuming arguendo that he received it late, this claim nevertheless fails. Petitioner has failed to demonstrate prejudice by explaining what further objections he could have raised had he received the PSR sooner that would have probably resulted in a lower sentence.
(ii) Petitioner's contention that counsel was ineffective for failing to object to the enhancements for abusing a position of trust and obstructing justice is conclusively refuted by the record. Counsel raised both of these issues in written objections to the PSR and at the sentencing hearing.
Therefore, Petitioner's claims that counsel was ineffective with regards to sentencing will be denied.
Petitioner raises the following claim in his Amended § 2255 Motion to Vacate:
(Doc. No. 4 at 19).
A one-year statute of limitation applies to motions to vacate under § 2255, which runs from the latest of:
28 U.S.C. § 2255(f).
For an untimely claim relate back to the original timely-filed pleading, it must be shown that "the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading." Fed. R. Civ. P. 15(c)(1)(B). In the context of a habeas motion, "conduct, transaction, or occurrence" does not mean the same "trial, conviction, or sentence," such that any claim that relates to the prior conviction or sentence challenged in a habeas motion is considered timely, no matter how long after the original motion it is filed. Rather, a proposed amendment relates back to the date of the original motion if it "state[s] claims that are tied to a common core of operative facts."
Petitioner's conviction and sentence became final when the time for filing a certiorari petition in the U.S. Supreme Court expired on March 8, 2016.
Petitioner timely filed the original § 2255 Motion to Vacate in the instant case on August 29, 2016, in which he raised his claims of ineffective assistance of trial counsel. (Doc. No. 1). He filed his Amended § 2255 Motion to Vacate, in which he realleged his ineffective assistance claims and raised the claim of prosecutorial misconduct for the first time, outside the one-year limit on May 1, 2017. (Doc. No. 4). Petitioner's prosecutorial misconduct claim is entirely new, does not arise from the same conduct, transaction, or occurrence as the timely ineffective assistance of counsel claims, and thus does not relate back to the timely § 2255 petition. Petitioner does not allege that any exception to the time-bar applies. Therefore, the prosecutorial misconduct claim will be dismissed with prejudice.
For the foregoing reasons, the Court denies and dismisses Petitioner's Amended § 2255 Motion to Vacate.
