J. RONNIE GREER, District Judge.
This matter is before the Court on the motion of John Theodore Hancock ("petitioner" or "Hancock") To Vacate, Set Aside Or Correct Sentence Under 28 U.S.C § 2255, [Doc. 146].
On August 12, 2008 the federal grand jury returned a three-count indictment, [Doc. 3]] which charged petitioner, a medical doctor, with health care fraud in violation of 18 U.S.C. § 1347 (Count 1), unlawfully dispensing methadone, a Schedule II controlled substance in violation of 21 U.S.C. § 841 (Count 2), and unlawfully dispensing alprazolam, a Schedule IV controlled substance in violation of 18 U.S.C. § 841 (Count 3). A superseding indictment was returned on September 9, 2008, [Doc. 6]. The superseding indictment contained 112 counts. Counts 1, 2, 18, and 19 of the superseding indictment charged the petitioner with health care fraud resulting in the death of the patients named in those counts in violation of 18 U.S.C. §§ 1347 and 2. Counts 3-8, 10-17, 20-21, and 23-32 of the indictment charged the petitioner with health care fraud in violation of 18 U.S.C. §§ 1347 and 2. Counts 33 through 36 charged the petitioner with unlawfully dispensing controlled substances resulting in death in the use of such substances in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(C) and 18 U.S.C. § 2. Counts 37-42, 44-51, 64-68, 75-81 and 83-90 charged the petitioner with unlawfully dispensing controlled substances in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(C), 841(b)(1)(D) and 841(b)(2). Counts 50-63, 69-74, and 92-105 charged the petitioner with unlawfully dispensing controlled substances in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(C) or (b)(1)(D) or 841(b)(2). Counts 106 and 107 charged petitioner with money laundering in violation of 18 U.S.C. §§ 1957 and 2. Count 108 of the indictment charged petitioner with evasion of income tax during calendar years 1994 and 1995 in violation of 26 U.S.C. § 7203. Finally, Counts 109 through 112 charged petitioner with failure to file income tax returns for calendar years 2002, 2003, 2004 and 2005 in violation of 26 U.S.C. § 7203
After significant pretrial motion practice and several continuances, the case proceeded to trial on July 6, 2009, [Doc. 79]. At the conclusion of the nine day trial, Hancock was found guilty of Counts 1-8, 10-18, 20-21, 23-42, 44-51, 53-66, 68-70, 72-81, 83-87, 89-90, 92-95, and 97-112 and not guilty of Counts 19, 67, 71, 88 and 96, [Doc.92]. A PSR was prepared and Hancock was sentenced on July 30, 2009 to a term or imprisonment of 276 months as to Counts 1 and 2; 120 months as to Counts 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 106 and 107; 240 months as to Counts 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 44, 45, 46, 47, 48, 49, 50, 51, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62 and 63; 60 months as to Counts 64, 65, 66, 68, 69, 70, 72, 73, 74 and 108; 36 months as to Counts 75, 76, 77, 78, 79, 80, 81, 83, 84, 85, 86, 87, 89, 90, 92, 93, 94, 95, 97, 98, 99, 100, 101, 102, 103, 104 and 105; and 12 months as to Counts 109, 110, 111 and 112 to run concurrently, for a net sentence of 276 months. Judgment was entered on August 19, 2010, [Doc. 121].
Hancock appealed his convictions and sentence to the Sixth Circuit Court of Appeals, [Doc. 122]. The Sixth Circuit affirmed the Court's judgment in full on March 9, 2012, [Doc. 139]. Hancock's petition for writ of certiorari to the United States Supreme Court was denied on October 2, 2012, [Doc. 142]. The instant motion to vacate was filed on October 4, 2013, [Doc. 146]. United States responded in opposition on November 3, 2014, [Doc. 149].
The facts in the case were succinctly stated by the Sixth Circuit:
United States v. John Theodore Hancock, 473 Fed. App'x 424, at ** 1 (6
This Court must vacate and set aside petitioner's sentence if it finds that "the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, . . ." 28 U.S.C. § 2255. Under Rule 4 of the Governing Rules, the Court is to consider initially whether the face of the motion itself, together with the annexed exhibits and prior proceedings in the case, reveal the movant is not entitled to relief. If it plainly appears the movant is not entitled to relief, the court may summarily dismiss the § 2255 motion under Rule 4.
When a defendant files a § 2255 motion, he must set forth facts which entitle him to relief. Green v. Wingo, 454 F.2d 52, 53 (6
To warrant relief under 28 U.S.C. § 2255 because of constitutional error, the error must be one of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted) (§ 2254 case); Clemmons v. Sowders, 34 F.3d 352, 354 (6
A petitioner alleging ineffective assistance of counsel must satisfy a two-part test. Stickland v. Washington, 466 U.S. 668, 687 (1987). See also, Huff v. United States, 734 F.3d 600, 606 (6th Cir. 2013). First, the Petitioner must establish, by identifying specific acts or omissions, that counsel's performance was deficient and that counsel did not provide "reasonably effective assistance," as measured by "prevailing professional norms." Rompilla v. Beard, 545 U.S. 374, 380 (2005). Counsel is presumed to have provided effective assistance, and the Petitioner bears the burden of showing otherwise. Mason v. Mitchell, 320 F.3d 604, 616-17 (6th Cir. 2003); see also Strickland, 466 U.S. at 689 (a reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that . . . the challenged action might be considered sound trial strategy") (internal citation omitted).
Second, the Petitioner must demonstrate "a reasonable probability that, but for [counsel's acts or omissions], the result of the proceedings would have been different." Strickland, 466 U.S. at 694. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691; see also Smith v. Robbins, 528 U.S. 259, 285-86 (2000). The Court is not required to analyze both prongs of the Strickland test as to every claim. Strickland, 466 U.S. at 697. Indeed, the Supreme Court recommended that, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." Id.; accord United States v. Hynes, 467 F.3d 951, 970 (6th Cir. 2006).
Petitioner faults trial counsel for failing to "present any rebuttal witness to challenge the government's misleading statistical evidence,"
The government is correct on this issue. Petitioner has done nothing more than speculate here that an unnamed expert called to give unknown testimony would have made any difference in the outcome of his case. There is little doubt that trial counsel is obligated "to make reasonable investigation or to make a reasonable decision that makes particular investigation unnecessary." Stewart v. Wolfenbarger, 468 F.3d 338, 356 (6
Petitioner relies on Leonard v. Michigan, 287 F.Supp.2d 765, 792 (E.D. Mich. 2003), as a case "indistinguishable from Dr. Hancock's case." [Doc. 146 at 27]. That case is, however, easily distinguishable. In Leonard, at the time of counsel's appointment, an expert witness had been identified and consulted by prior counsel and had provided an opinion that "various deficiencies . . . existed with respect to the admissibility and reliability of the [critical] DNA evidence" in the case. 287 F. Supp. 2d at 790. Counsel, however, did not contact the expert until four days before the suppression hearing and the expert was unable to attend the suppression hearing. Counsel then made no attempt "to secure the services or advice of any other expert prior to the suppression hearing, even though his missing expert would have provided him with these names." Id. The court found ineffective assistance of counsel. Leonard is thus distinguishable because there the identity of the expert was known, unlike in this case, and the expert had rendered a specific favorable opinion which would have contested the primary evidence against the defendant, also unlike this case.
As for petitioner's alternative claim that, in lieu of a third-party expert, counsel should have "allow[ed] Dr. Hancock" to testify, that claim also fails. First of all, although petitioner's identity is known, his argument suffers from the same deficiencies noted above. Petitioner has not stated the substance of his testimony or how it might have affected the outcome of his case. More fundamentally, however, there is a second flaw in petitioner's claim. Petitioner now claims that counsel "precluded him from testifying in his own defense," and that he "strongly disavows his previous affirmations to the court." [Doc. 146 at 31]. He claims that he was "coached" by his attorney as to how to respond to the Court's query, that counsel "even subtly threatened him into not testifying, and that counsel never fully informed him of his right to testify in his own defense." [Id. at 41]. Petitioner claims that counsel had threatened to "withdraw from" or "abandon" petitioner's case if he told the Court of his desire to testify. [Id. at 41-42]. Dr. Hancock asserts that he "did all that he could possibly do to exercise his right to testify in his own defense." [Id. at 42].
This issue is governed and foreclosed by clear Sixth Circuit precedent. In United States v. Stover, 474 F.3d 904 (6
Stover, 474 F.3d at 908-09 (quoting United States v. Webber, 208 F.3d 545, 551 (6
Hancock did nothing to alert the Court to his desire to testify and the Court, under no duty to inquire, could have simply presumed that petitioner waived his right to testify. The Court went further, however, and specifically inquired about whether petitioner had decided not to testify and the voluntariness of his waiver of the right to testify. The following exchange took place between the Court and the petitioner:
[Doc. 131 at 118-19]. Although petitioner now seeks to disavow his statements, he will not be permitted to do so. "[S]olemn declarations in open court carry a strong presumption of verity," Blackledge v. Allison, 431 U.S. 63, 74 (1977), and the Court is entitled to rely on those statements. Otherwise, petitioner would simply make a mockery of the Court. This issue is without merit.
Petitioner argues that, despite counsel's awareness that petitioner's funds were "running out" or "had run out," counsel "never timely raised the issue of lack of funding with the trial court or requested a continuance of Dr. Hancock's trial to further investigate the available options." [Doc. 146 at 28]. He more specifically alleges that counsel should have sought Criminal Justice Act monies for investigative or expert services to refute testimony by government experts (doctors) that the drugs prescribed by Hancock were medically unnecessary. In conclusory fashion, Hancock alleges that "[s]uch an expert would have confirmed that the drugs prescribed . . . actually had a legitimate and therapeutic purpose . . ." [Id.]
This claim fails for several reasons. Petitioner has not specifically identified any investigative services which could have refuted testimony by government witnesses nor has he identified any expert who could have done so. He has not provided the name of an expert or an affidavit from any expert willing to testify, nor has he given the Court any indication of what the testimony would have been, except to allege, in conclusory fashion, that it might refute testimony from the government experts that the drugs prescribed by Hancock were not for legitimate and therapeutic purposes. In short, petitioner has not provided anything beyond speculation which would even warrant an evidentiary hearing. There is no evidence that petitioner's defense was hindered in any way by insufficient funding. This claim lacks merit.
Petitioner states his second ground as:
[Doc. 146 at 5]. Petitioner claims that appellate counsel should have argued more broadly on appeal that the evidence was insufficient to sustain a conviction for health care fraud, rather than focusing more narrowly on the convictions for health care fraud resulting in death. More specifically, counsel's contentions in the Sixth Circuit focused on the level of causation required for the enhanced penalty under § 1347(a)(2) where the offense "resulted in death," while petitioner claims he instructed counsel to argue "a stronger issue on appeal," i.e., whether he
The United States responds to this second claim only briefly. The government suggests that the issue now raised by petitioner was meritless and "counsel is not required to raise [ ] every non-frivolous claim on appeal." [Doc. 149 at 7 (citing Coleman v. Mitchell, 268 F.2d 417, 430-31 (6
Petitioner's claim of ineffective assistance of appellate counsel fails for multiple reasons. First, it appears that the Court did not give the objected to instruction which was problematic in Awad. The transcript has been filed as document 136 and a word search of the document reveals no such instruction. As a result, the instruction found improper in Awad is missing in this case. Second, although the Sixth Circuit has not explicitly defined "willfully" for the purpose of a health care fraud charge brought under § 1347, the Court gave the jury a generally accepted definition of willfulness. The Court charged the jury that "[a] person acts `willfully' when that person acts deliberately, voluntarily, and intentionally." [Doc. 136 at 40]. The Court did not, however, specifically charge the jury that the government, to prove that defendant acted willfully, had to prove that defendant acted with knowledge that his conduct was unlawful. See Ratzlaf v. United States, 510 U.S. 135 (1994).
In United States v. Hunt, 521 F.3d 636, 645 (6
As noted above, the problematic instruction that was the subject of Awad was not given in this case. Even if it had been given, however, there would have been no prejudice to the petitioner. Just as the Court stated in Awad, where the jury instructions required proof that the defendant acted with an "intent to defraud," as they did here, "[n]o reasonable jury could have found that a physician intended to deceive or cheat the Federal Government but did not know that conduct is unlawful . . ." Awad, 551 F.3d at 940. Thus, any failure on the part of counsel to request such an instruction did not prejudice petitioner in any way.
On March 29, 2012, the Sixth Circuit affirmed petitioner's convictions and sentence. [Doc. 139]. Petitioner then filed a pro se petition for writ of certiorari in the United States Supreme Court, [Doc. 141]. On October 1, 2012, the Supreme Court denied the petition, [Doc. 142]. Petitioner then filed his § 2255 motion on October 4, 2013
As this Court noted in its prior order, a federal prisoner has one year in which to file a § 2255 motion and this includes any amendments to the motion. 28 U.S.C. § 2255(f); Mayle v. Felix, 545 U.S. 644, 654 (2005); Oleson v. United States, 27 Fed. App'x 566, 570-71 (6
Thus, this issue boils down initially to whether "Burrage announced a new substantive rule that applies retroactively." The Sixth Circuit has not decided whether Burrage applies retroactively to cases on collateral review and, as noted above, has directed this Court to decide the question in the first instance. Based on the virtually unanimous weight of authority from other courts, the Court concludes that Burrage is not retroactive to cases on collateral review and therefore affords Hancock no basis for relief.
For the reasons set forth above, the Court holds that petitioner's conviction and sentencing were not in violation of the constitution or laws of the United States and his motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 is DENIED.
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of appealability should be granted. A certificate should issue if petitioner has demonstrated a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Sixth Circuit Court of Appeals disapproves of the issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6
Under Slack, to warrant a grant of the certificate, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." After reviewing each of Petitioner's claims, the Court finds that reasonable jurists could not conclude that petitioner's claims are adequate to deserve further review, with one exception. Although the full weight of authority supports the Court's holding that Burrage v. United States is not retroactive to cases on collateral review, the Sixth Circuit has not yet addressed the issue, and the Court will grant the certificate as to that limited issue, but the certificate will be denied as to all other issues.
A separate judgment will enter.
