SARAH S. VANCE, District Judge.
Defendant Paige Okpalobi moves to vacate her sentence under 28 U.S.C. § 2255.
On September 25, 2014, Okpalobi was charged in a second superseding indictment with (1) conspiracy to commit health care fraud, in violation of 18 U.S.C. §§ 1347, 1349 (count one); (2) conspiracy to pay and receive health care kickbacks, in violation of 18 U.S.C. § 371 (count two); conspiracy to falsify records in a federal investigation, in violation of 18 U.S.C. §§ 371, 1519 (count six); and falsifying records in a federal investigation, in violation of 18 U.S.C. §§ 1519, 2 (count seven).
On February 2, 2015, Okpalobi entered into a plea agreement with the government.
On February 22, 2017, Okpalobi was sentenced to (1) 120 months imprisonment as to count one, and 42 months imprisonment as to count six, to be served consecutively; (2) three months of supervised release; (3) and restitution—to be paid jointly and severally with her co-defendants—of $44,792,958 to Medicare.
Okpalobi now moves to vacate her sentence under 28 U.S.C. § 2255. She asserts two separate ineffective assistance of counsel claims.
Section 2255 of Title 28 of the United States Code provides that a federal prisoner serving a court-imposed sentence "may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). Only a narrow set of claims are cognizable on a Section 2255 motion. The statute identifies four bases on which a motion may be made: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is "otherwise subject to collateral attack." Id. A claim of error that is neither constitutional nor jurisdictional is not cognizable in a Section 2255 proceeding unless the error constitutes "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
When a Section 2255 motion is filed, the district court must first conduct a preliminary review. "If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion . . . ." Rules Governing Section 2255 Proceedings, Rule 4(b). If the motion raises a nonfrivolous claim to relief, the court must order the Government to file a response or to take other appropriate action. Id. The judge may then order the parties to expand the record as necessary and, if good cause is shown, authorize limited discovery. Id., Rules 6-7.
After reviewing the Government's answer, any transcripts and records of prior proceedings, and any supplementary materials submitted by the parties, the court must determine whether an evidentiary hearing is warranted. Id., Rule 8. An evidentiary hearing must be held "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). No evidentiary hearing is required if the prisoner fails to produce any "independent indicia of the likely merit of [his] allegations." United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006) (quoting United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998)).
Ultimately, the petitioner bears the burden of establishing his claims of error by a preponderance of the evidence. Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980). For certain "structural" errors, relief follows automatically once the error is proved. Brecht v. Abrahamson, 507 U.S. 619, 629-30 (1993). For other "trial" errors, the court may grant relief only if the error "had substantial and injurious effect or influence" in determining the outcome of the case. Id. at 637-38 (citation omitted); see also United States v. Chavez, 193 F.3d 375, 379 (5th Cir. 1999) (applying Brecht in a Section 2255 proceeding). If the court finds that the prisoner is entitled to relief, it "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b).
To establish a claim of constitutionally ineffective assistance of counsel, a petitioner must show both (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that but for counsel's deficient performance, the likely outcome of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-96 (1984). The petitioner must meet both prongs of the Strickland test and, if the Court finds that the petitioner has made an insufficient showing as to either prong, the Court may dispose of the claim without addressing the other prong. See id. at 697.
As to the first prong of the Strickland test, counsel's performance must be compared to "an objective standard of reasonableness, mindful of the strong presumption of adequacy." Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997). A court should not find inadequate representation merely because, with the benefit of hindsight, the court disagrees with counsel's strategic choices. Id. The Fifth Circuit has made clear that "[a] conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness." Id. (quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)). As to the second Strickland prong, a petitioner must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
Okpalobi retained counsel in connection with her initial Section 2255 motion.
Prisoners mounting collateral attacks on their convictions do not have a right to counsel under the Sixth Amendment. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). But a court has discretion to appoint counsel to a "financially eligible person" seeking relief under 28 U.S.C. § 2255 when "the interests of justice so require." 18 U.S.C. § 3006A(a)(2). The Court finds that for the reasons stated below, Okpalobi's motion to vacate lacks a legal basis and therefore does not warrant appointment of counsel. See United States v. West, No. 09-391, 2017 WL 6325768, at *1 (E.D. La. Dec. 11, 2017) (declining to appoint counsel for Section 2255 motion because collateral attack lacked legal basis).
A defendant may waive her statutory right to appeal as part of a plea agreement. United States v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995). A waiver of post-conviction relief such as under 28 U.S.C. § 2255 is valid if the waiver is informed and voluntary. United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). The defendant must know that she had "a right to appeal [her] sentence and that [she] was giving up that right." United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994) (internal quotation marks and citation omitted). It is the responsibility of the district court "to insure that the defendant fully understands [her] right to appeal and the consequences of waiving that right." United States v. Gonzalez, 259 F.3d 355, 357 (5th Cir. 2001) (quoting United States v. Baty, 980 F.2d 977, 979 (5th Cir. 1992)).
Here, the evidence indicates that Okpalobi's plea and waiver were both knowing and voluntary. Okpalobi's signed plea agreement contains an express waiver of her right to appeal or seek relief under Section 2255.
In all, Okpalobi reserved the right to bring an ineffective assistance of counsel claim only to the extent that she claims the ineffective assistance "directly affected the validity" of her entering the plea agreement and waiving her appeal rights. See United States v. White, 307 F.3d 336, 341 (5th Cir. 2002) (a defendant's waiver of appeal in a plea agreement "may not be enforced against a Section 2255 petitioner who claims that ineffective assistance of counsel rendered that waiver unknowing or involuntary" (emphasis in original)). In other words, Okpalobi's ineffective assistance of counsel claims survive her waiver of appeal "only when the claimed assistance directly affected the validity of that waiver or the plea itself." Id. at 343.
Okpalobi brings two separate ineffective assistance of counsel claims. Her first claim involves the conduct of Lance Unglesby, her first attorney whom she retained before she was charged in the second superseding indictment.
On May 9, 2013, the government handed down its first indictment, which named Morad but not Okpalobi.
Okpalobi alleges that during Morad's later negotiations with the government over his plea bargain, Morad "divulged knowledge" about her "that he obtained while she assisted him and his lawyer."
This claim fails for at least two reasons. First, in her plea agreement she waived any right to bring this claim. As already addressed, Okpalobi waived any ineffective assistance of counsel claim except a claim that her counsel's deficient performance "directly affected the validity of [her] waiver or the plea itself." White, 307 F.3d at 343. Okpalobi has offered no explanation for how Unglesby's actions before she was indicted affected the validity of her waiver of appeal and collateral challenge rights or the validity of the guilty plea. See id. at 344. (holding plea agreement waived petitioner's right to challenge his sentence under section 2255 and thus barred his claim of ineffective assistance at sentencing). The Court therefore finds that Okpalobi's ineffective assistance claim regarding Unglesby's alleged actions is subject to waiver, which cannot be evaded. See United States v. Brown, No. 11-288, 2017 WL 497671, at *5 (E.D. La. Feb. 7, 2017) (finding that attorney's alleged deficient performance before the plea stage was waived).
Second, even if Okpalobi had not waived her right to bring this claim, her ineffective assistance of counsel claim would fail because it is grounded in her counsel's allegedly deficient performance before she was indicted. "[A] defendant has no constitutional right to the effective assistance of counsel" in the absence of a right to counsel. United States v. Ewing, 334 F. App'x 697 (5th Cir. 2009) (citing Coleman v. Thompson, 501 U.S. 722, 752 (1991)). "The Supreme Court has held that the right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant." Id. at 698 (internal quotation marks omitted). "Adversary judicial proceedings may begin by way of a formal charge, preliminary hearing, indictment, information, or arraignment." Id. (internal quotation marks omitted). Here, Unglesby's alleged deficient performance occurred before Okpalobi was named in the second superseding indictment, and therefore before any adversarial judicial proceedings against her began. Because Okpalobi did not have a right to counsel at this time, she cannot bring a claim for ineffective assistance of counsel for Unglesby's performance.
Okpalobi's second ineffective assistance of counsel claim concerns the performance of Ralph S. Whalen, Jr., whom she hired on October 6, 2014, after she was named in the second superseding indictment.
Okpalobi did not waive this ineffective assistance claim in her plea agreement, because the claim goes directly to the validity of her guilty plea and appeal waiver. But Okpalobi's claim nevertheless fails under both prongs of the Strickland test.
First, she does not show that Whalen's advice that she accept the plea deal was deficient or erroneous. Okpalobi effectively alleges that Whalen advised her that she could not win at trial, and that she was likely to receive a more lenient sentence if she accepted the government's deal. Based on the record, it is true that Okpalobi's decision to plead guilty led to a more lenient sentence than if she had gone to trial and lost. In her plea agreement, the government agreed to drop two of the counts from the superseding indictment, and also support a full three-level reduction in her base offense level because of her timely acceptance of responsibility.
Whalen's advice could have been erroneous or deficient if there were evidence that Okpalobi had a strong chance of succeeding at trial. But Okpalobi has not provided any evidence that would exonerate her. There is in fact no reason to believe Okpalobi would have been successful at trial, considering the substantial amount of evidence the government set forth in her factual basis, and the numerous other guilty pleas and trial convictions the government secured from Okpalobi's co-defendants.
Second, for similar reasons, Okpalobi fails to show how she was prejudiced by Whalen's allegedly deficient advice. Whether a petitioner can argue persuasively that she was prejudiced by erroneous advice depends partly on her chances for success at trial. See Magnum v. Hargett, 67 F.3d 80, 84 (5th Cir. 1995); Armstead v. Scott, 37 F.3d 202, 210-11 (5th Cir. 1994) (noting that strong evidence of defendant's guilt and longer potential sentence if convicted refuted defendant's assertion that but for counsel's advice, he would have rejected the plea bargain). Again, the evidence in Okpalobi's factual basis was substantial, and many of her co-defendants had already pleaded guilty. Under such circumstances, her chances of success at trial were unlikely. See United States v. Givens, No. 01-282, 2005 WL 2060900, at *4 (E.D. La. Aug. 22, 2005) (finding defendant not prejudiced by allegedly erroneous advice because his co-conspirators had already been convicted and the evidence against him was "substantial"). In addition, as already addressed, by pleading guilty Okpalobi received a reduction in both her statutory maximum sentence and base offense level under the sentencing guidelines. Okpalobi has provided no evidence to suggest that but-for Whalen's advice that she enter the plea agreement, she would have decided to proceed to trial. The Court finds no convincing reason to conclude otherwise.
Okpalobi has therefore failed to demonstrate either Whalen's deficient performance or any prejudice, and her claim that Whalen rendered ineffective assistance that invalidates her plea or her appeal waiver must fail.
Okpalobi separately argues that at her rearraignment hearing she was "unable to give competent responses to the Court and therefore entered into the plea agreement unknowingly" and "at the direction of her attorney."
Okpalobi specifically argues that at the time of her hearing, she had a "fragile mental state," and that "shortly after" her guilty plea she had a "fourteen day stay at a psychiatric hospital."
The Court assessed Okpalobi and her mental state at her rearraignment hearing:
Because of Okpalobi's answers to these questions, the Court determined that Okpalobi's judgment was not impaired and that she was pleading guilty knowingly and voluntarily. Okpalobi has provided no evidence in support of her contention that she was in fact impaired during her hearing. The Court therefore finds that there is no merit to her contention that she did not enter into her plea agreement voluntarily. See See Blackledge, 431 U.S. at 74 (declarations in open court are presumed to be truthful and "constitute a formidable barrier in any subsequent collateral proceedings"); United States v. Urias-Arianas, 327 F. App'x 468, 469-70 (5th Cir. 2009) (defendant's "sworn representations" that he was not mentally or psychologically impaired, that he was not under the influence of narcotics of medication, and that he understood is waiver of appellate rights, showed that his "guilty plea was knowing and voluntary").
The Court finds that an evidentiary hearing is not required, because Okpalobi has failed to produce any "independent indicia of the likely merit of [her] allegations." United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006); see also United States v. Saenz, 282 F.3d 354, 356 (5th Cir. 1980) (noting that mere conclusory allegations are not sufficient to support a request for an evidentiary hearing).
When a district court enters a final order adverse to a petitioner under 28 U.S.C. § 2255, the court must issue or deny a certificate of appealability. Rules Governing Section 2255 Proceedings, Rule 11(a). A court may only issue a certificate of appealability if the petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The "controlling standard" for a certificate of appealability requires the petitioner to show "that 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 [are] adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). With respect to claims denied on procedural grounds, the petitioner must make a two-part showing:
(1) that "jurists of reason would find it debatable whether the district court was correct in its procedural ruling," and (2) that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." Johnson v. Quarterman, 483 F.3d 278, 284 (5th Cir. 2007) (quoting Slack, 529 U.S. at 484).
Okpalobi's motion does not satisfy these standards. For the reasons stated in this order, the Court finds that Okpalobi's arguments do not amount to a substantial showing that her constitutional rights were compromised, nor would they engender any type of debate among reasonable jurists. Accordingly, the Court will not issue a certificate of appealability.
For the foregoing reasons, the Court DENIES Okpalobi's 28 U.S.C. § 2255 motion. The Court will not issue a certificate of appealability.
