Al-Amin v. United States

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA

IHSAAN AL-AMIN, )

)

Petitioner, )

) Nos.: 1:18-CV-14, 1:18-CV-15

v. )

)

UNITED STATES OF AMERICA, ) Judge Collier

)

Respondent. )

M E M O R A N D U M

Before the Court is Petitioner’s motion to vacate his sentence under 28 U.S.C. § 2255.

(Doc. 2 in Case No. 1:18-cv-14, Doc. 1 in Case No. 1:18-cv-15.)1 The Government has responded

in opposition. (Doc. 15.) Petitioner has not filed a reply and the time to do so has expired. See

E.D. Tenn. L.R. 7.1(a). For the reasons set out below, the Court will DENY Petitioner’s motion.

I. BACKGROUND

A. Offense Conduct

On November 14, 2013, Petitioner pleaded guilty to one count of knowingly and

intentionally dispensing, and causing to be dispensed, quantities of hydrocodone, outside the scope

of professional practice and not for a legitimate medical purpose, in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(E) and 18 U.S.C. § 2, and two counts of willfully attempting to evade and defeat

a large part of the income tax he owed to the United States, by preparing and causing to be

prepared, and signing and causing to be signed, a false and fraudulent United States Individual Tax

1 All docket numbers are to docket entries in Case No. 1:18-cv-14 unless otherwise

indicated.

Return filed with the Internal Revenue Service (“IRS”), in violation of 26 U.S.C. § 7201. (Docs.

58, 61, 63 in Case No. 1:12-cr-50.)

According to the amended plea agreement, Petitioner was a Tennessee-licensed physician

who operated a solo practice, the O’Neil Medical Clinic, in Chattanooga, Tennessee. (Doc. 63 at

3 in Case No. 1:12-cr-50.)

On August 28, 2006, Petitioner caused an income tax return to be prepared for the 2005

taxable year in which he claimed his taxable income was $6,286.00, when he knew his taxable

income that year was approximately $321,807.00. (Id. at 4–5.) On August 18, 2009, Petitioner

caused an income tax return to be prepared for the 2006 taxable year, and claimed his taxable

income was $53,766.00, when his taxable income for 2006 was approximately $262,871.00. (Id.

at 5.) Petitioner admitted he willfully filed his tax returns with the intent to evade and defeat a

large part of the income tax due, and paid an amount substantially less than what he owed. (Id.)

Beginning in August 2009, law enforcement employed an informant to pose as a patient at

Petitioner’s medical clinic. (Id. at 3.) The informant was prescribed controlled substances by

Petitioner and requested a prescription for pain medication for his brother. (Id. at 3–4.) The

informant explained that his brother was a long-distance truck driver and was not able to visit a

doctor for an examination. (Id. at 4.) Petitioner stated that the informant’s brother would have to

come into the office. (Id.) On December 8, 2009, an undercover agent posing as the informant’s

brother went to Petitioner’s office. (Id.) The undercover agent told Petitioner he had back pain,

but did not provide any medical records or documentation of his pain. (Id.) Petitioner performed

a cursory physical exam and asked the undercover agent to provide documentation of his back

pain, either with an X-ray or other type of image, before his next visit. (Id.) On December 29,

2009, Petitioner wrote a prescription for the undercover agent for twenty-one tablets of

Hydrocodone 10mg. (Id.) For the purposes of the plea agreement, Defendant agreed that the

prescription was not for a legitimate medical purpose. (Id.)

B. Sentencing Proceedings

Petitioner’s sentencing proceedings took place over three days. (Docs. 133, 135, 148 in

Case No. 1:12-cr-50.) On the first day of the proceedings, Petitioner’s counsel, Hallie McFadden

and David Ward, objected to the Presentence Report on four grounds. His counsel asserted there

was insufficient evidence to apply the two-level tax-loss enhancement under USSG § 2T1.1(b)(1),

the four-level leadership enhancement under USSG § 3B1.1(a), or the two-level firearm

enhancement under USSG § 2D1.1(b)(1). (Doc. 151 at 7–9 [May 4, 2015, Hearing Tr. at 7:7–25,

8:1–4, 9:9–25] in Case No. 1:12-cr-50.) His counsel also argued any conduct regarding other

patients not included in the plea agreement should not be considered by the Court because such

conduct was not illegal and was not relevant to the conduct to which Petitioner pleaded guilty. (Id.

at 8–10 [May 4, 2015, Hearing Tr. at 8:18–25, 9:1–8, 10:9–15].)

In response to these objections, the Government presented testimony from Charles

Whitson, a supervisory investigator with Tennessee’s Health-Related Boards, Office of

Investigations, Scott Kennedy, a special agent with IRS Criminal Investigation, and Dr. Stephen

Loyd, the chief of medical services at James H. Quillen Veterans Affairs Medical Center in

Johnson City, Tennessee. (Docs. 151, 152 in Case No. 1:12-cr-50.) Petitioner’s counsel cross

examined each of the Government’s witnesses and presented testimony from Dr. Donald Ray

Taylor, a pain management and addiction specialist. (Id.)

Based on the testimony presented, the Court found Petitioner’s conduct related to four of

his patients not included in the plea agreement was both illegal and sufficiently connected to the

conduct in the plea agreement to warrant consideration in sentencing him. (Doc. 153 at 3 [June 1,

2015, Hearing Tr. at 374:9–13] in Case No. 1:12-cr-50.) However, the Court found there was

insufficient evidence to support imposition of the leadership or firearm enhancements. (Id. at 5,

8–9 [June 1, 2015, Hearing Tr. at 376:14–22, 379:15–25, 380:1].) Finally, the Court found the

objection to the two-level tax-loss enhancement moot because adding or removing it would not

alter the guidelines calculation. (Id. at 10 [June 1, 2015, Hearing Tr. at 381:4–7].)

Petitioner was sentenced to one hundred months’ imprisonment followed by two years of

supervised release. (Doc. 149 in Case No. 1:12-cr-50.)

C. Appeal Proceedings

Petitioner filed an appeal to the Sixth Circuit Court of Appeals, and the Sixth Circuit

affirmed Petitioner’s sentence. (Docs. 147, 156, 157 in Case No. 1:12-cr-50.) The Sixth Circuit

explained that the Court did not err in considering conduct related to four patients not included in

the plea agreement because the Court was permitted to consider relevant evidence outside of the

facts included in the plea agreement. (Doc. 156 at 2–3 in Case No. 1:12-cr-50.) The Sixth Circuit

also found that the Court had not erred in crediting the Government’s expert over Petitioner’s

expert because there were two permissible views of the evidence. (Id. at 3–4.) The Sixth Circuit

further held that Petitioner’s objection to the Court’s decision not to rule on the two-level

enhancement under USSG §2T1.1(b)(1) was unfounded because Petitioner failed to challenge the

decision at sentencing and the Court did not plainly err in finding the objection moot. (Id. at 4.)

Finally, the Sixth Circuit held Petitioner did not overcome the presumption that his sentence was

substantively reasonable. (Id. at 5.)

Petitioner then filed a writ of certiorari to the Supreme Court, which was denied on January

11, 2017. (Docs. 158, 159 in Case No. 1:12-cr-50.)

D. 28 U.S.C. § 2255 Petition

On January 23, 2018, Petitioner filed the instant 28 U.S.C. § 2255 petition, moving to

vacate his sentence to time served based on three main arguments: first, Petitioner challenges the

validity of his guilty plea; second, Petitioner raises several claims of ineffective assistance of

counsel; and third, Petitioner asserts the Government failed to provide exculpatory evidence prior

to his sentencing. (Docs. 2, 11.) The Government has filed a response in opposition (Doc. 15),

and the time for filing a reply has expired. See E.D. Tenn. L.R. 7.1(a).

II. STANDARD OF REVIEW

Under 28 U.S.C. § 2255, a federal prisoner may move to vacate, set aside, or correct a

sentence when the sentence imposed was in violation of the Constitution or federal law, the court

was without jurisdiction to impose such a sentence, the sentence was in excess of the maximum

authorized by law, or the sentence is otherwise subject to collateral attack. To prevail on a § 2255

motion, the petitioner “must allege one of three bases as a threshold standard: (1) an error of

constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact

or law that was so fundamental as to render the entire proceeding invalid.” Weinberger v. United

States, 268 F.3d 346, 351 (6th Cir. 2001) (citing United States v. Addonizio, 442 U.S. 178, 185–

86 (1979)). Thus, “a petitioner must clear a significantly higher hurdle than would exist on direct

appeal.” United States v. Frady, 456 U.S. 152, 166 (1982). This is in line with the historic meaning

of habeas corpus, which is “to afford relief to those whom society has ‘grievously wronged.’”

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

Rule 4(b) of the Rules Governing Section 2255 Proceedings requires a district court to

summarily dismiss a § 2255 motion if “it plainly appears from the face of the motion, any attached

exhibits, and the record of the prior proceedings that the moving party is not entitled to relief[.]”

See Rules Governing Section 2255 Proceedings in United States District Courts Rule 4(b).

If the motion is not summarily dismissed, Rule 8(a) of the Rules Governing Section 2255

Proceedings requires the district court to determine, after a review of the answer and the records

of the case, whether an evidentiary hearing is required. See Rules Governing Section 2255

Proceedings in United States District Courts Rule 8(a). A petitioner’s burden of establishing that

he is entitled to an evidentiary hearing is relatively light. See Martin v. United States, 889 F.3d

827, 832 (6th Cir. 2018). If a petitioner presents a legitimate factual dispute, then “the habeas

court must hold an evidentiary hearing to determine the truth of the petitioner’s claims.” Huff v.

United States, 734 F.3d 600, 607 (6th Cir. 2013) (quoting Valentine v. United States, 488 F.3d

325, 333 (6th Cir. 2007)).

An evidentiary hearing is not required, however, if “the petitioner’s allegations cannot be

accepted as true because they are contradicted by the record, inherently incredible, or conclusions

rather than statements of fact.” Martin, 889 F.3d at 832 (quoting MacLloyd v. United States, 684

F. App’x 555, 559 (6th Cir. 2017) (internal quotation marks omitted)). Nor does a petitioner’s

assertion of innocence, without more, entitle him to a hearing. Martin, 889 F.3d at 832.

III. DISCUSSION

The Court conducted an initial review of Petitioner’s § 2255 motion and determined from

its face that it should not be summarily dismissed. (Docs. 2, 5.) Upon further review of the

submissions of the parties, the record, and applicable law, the Court finds that a hearing is not

necessary to resolve the motion.

The Court will first consider Petitioner’s challenge to the validity of his guilty plea, and

will then turn to the claims of ineffective assistance of counsel, before finally addressing

Petitioner’s allegations that the Government withheld exculpatory evidence.

A. Validity of Guilty Plea

Petitioner asserts his guilty plea is invalid because he was never informed that he would be

“tried” at his sentencing hearing for an incident, the overdose of his former patient, Coey Waller,

that was not included in his plea agreement and for which he was not responsible. (Doc. 2 at 5.)

In response, the Government first notes that this claim was not raised on appeal and

Petitioner has not shown good cause for failing to raise it then. (Doc. 15 at 16.) As a result, the

Government contends Petitioner’s challenge is procedurally defaulted and should be denied. (Id.)

Even if it were not procedurally defaulted, the Government asserts the record shows Petitioner was

aware that relevant conduct would impact his sentencing, and thus Petitioner’s claim fails on the

merits as well. (Id.)

“[T]he voluntariness and intelligence of a guilty plea can be attacked on collateral review

only if first challenged on direct review.” Bousley v. United States, 523 U.S. 614, 621 (1998). A

failure to challenge the validity of a guilty plea on direct appeal will result in the claim being

procedurally defaulted on collateral review unless the defendant can show cause and actual

prejudice, or that he is “actually innocent.” Id. at 622. To show cause, a petitioner must

demonstrate that an “objective factor external to the defense” prevented his or her counsel from

complying with the procedural rule or that the procedural default was because of his or her

counsel’s constitutionally ineffective performance. Murray v. Carrier, 477 U.S. 478, 488 (1986).

Prejudice requires a petitioner to show “not merely that the errors at . . . trial created a possibility

of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire

trial with error of constitutional dimensions.” Id. at 494 (quoting Frady, 456 U.S. at 170)

(emphasis in original). “To establish actual innocence, petitioner must demonstrate that, in light

of all the evidence, it is more likely than not that no reasonable juror would have convicted him.”

Bousley, 523 U.S. at 623 (internal quotations omitted).

Here, Petitioner appealed his sentence, but did not include a challenge to the validity of his

guilty plea. (Docs. 147, 156 in Case No. 1:12-cr-50.) Thus, Petitioner’s § 2255 challenge to the

validity of his guilty plea is subject to procedural default unless Petitioner can show cause and

prejudice for failing to raise it earlier, or actual innocence.

Petitioner asserts he was abandoned by his counsel in late fall 2015. (Doc. 2 at 11.)

However, the notice of appeal was filed on June 1, 2015 (Doc. 147 in Case No. 1:12-cr-50), and

Petitioner’s opening brief was filed on September 21, 2015, see Appellant Brief, United States v.

Al-Amin, Case No. 15-5583, Doc. 17 (6th Cir. 2016). Thus, even if his counsel truly abandoned

him in late fall of 2015, he still had an opportunity to raise the issue with his counsel before the

appeal was filed. Petitioner does not assert there were any obstacles that impeded his counsel’s

ability to raise the claim on appeal or that his counsel ignored a request to raise the issue on appeal.

While Petitioner claims his § 2255 petition was the first opportunity for him to raise these issues,

he does not provide any evidence to support this assertion and it is undermined by the fact that he

filed an appeal. (See Doc. 2 at 11.) As a result, Petitioner has not offered any evidence to support

a finding that the failure to challenge his guilty plea on appeal was due to cause and prejudice.

Because Petitioner does not argue he is “actually innocent,” his challenge to the validity of his

guilty plea is procedurally defaulted. See Bousley, 523 U.S. at 621–22.

Even if Petitioner’s claim were not procedurally defaulted, it would fail on the merits. The

amended plea agreement, which Petitioner reviewed and signed, states that the facts provided in

the agreement “do not necessarily constitute all of the facts in the case. Other facts may be relevant

to sentencing. Both the defendant and the United States retain the right to present additional facts

to the Court to ensure a fair and appropriate sentence in this case.” (Doc. 63 at 3 in Case No. 1:12-

cr-50.) Petitioner asked his attorney about this section when he changed his plea to guilty. (Doc.

177 at 28 [Nov. 14, 2013, Hearing Tr. at 28:5–15] in Case No. 1:12-cr-50.) As his attorney

explained to Magistrate Judge Susan K. Lee, Petitioner “had a question about our ability to present

additional proof at sentencing. I showed him the part of the plea agreement that allows the

government and us to present additional proof at sentencing.” (Id. [Nov. 14, 2013, Hearing Tr. at

28:7–11].) In addition, Petitioner moved for release pending sentencing in part because his

medical expertise and his interpretation of his handwriting on ten thousand pages of medical charts

would be beneficial in determining what conduct, if any, would be relevant for the Court to

consider at sentencing. (Doc. 60 at 4 in Case No. 1:12-cr-50.) Thus, the record demonstrates

Petitioner was aware facts could be introduced at the sentencing hearing regarding conduct not

included in the plea agreement.

Accordingly, Petitioner’s challenge to the validity of his guilty plea will be denied.

B. Ineffective Assistance of Counsel

Ineffective assistance of counsel claims are governed by the two-prong test set forth in

Strickland v. Washington, 466 U.S. 668 (1984). To establish an ineffective assistance of counsel

claim,

[f]irst the defendant must show that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.

Second, the defendant must show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable.

Id. at 687.

“The proper measure of attorney performance remains simply reasonableness under

prevailing professional norms.” Id. at 688. There is a strong presumption that counsel’s conduct

was reasonable. Id. at 689; see also Sims v. Livesay, 970 F.2d 1575, 1579–580 (6th Cir. 1992)

(“The court should begin with a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance”) (internal quotations and citations omitted). “A fair

assessment of attorney performance requires that every effort be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to

evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689.

Here, Petitioner has alleged five claims of ineffective assistance of counsel and a separate

claim of cumulative error. The Court will evaluate each claim in turn.

1. Failure to Review or Use Exculpatory Evidence

Petitioner contends his attorneys failed to review Coey Waller’s medical records or use

them at the sentencing hearing. (Doc. 2 at 15, 18, 20.) As a result, Petitioner asserts his counsel

defended him as if he had been responsible for Mr. Waller’s overdose despite the evidence in the

medical records to the contrary. (Id.) Petitioner asserts this failure by his attorneys constitutes

performance well below the objective standard of reasonableness and, but for that deficiency, the

outcome of his case would have been different. (Id.)

The Government contends that the evidence presented by both parties at the sentencing

hearing made it clear Petitioner did not prescribe the medication that caused Mr. Waller’s

overdose. (Doc. 15 at 17.) The Government also states Petitioner’s counsel introduced Mr.

Waller’s medical records into evidence and offered detailed references to the records during

questioning, demonstrating his counsel did review and use the records. (Id. at 18.) As a result,

the Government contends, there was no error by Petitioner’s counsel to support an ineffective

assistance of counsel claim. (Id.)

Petitioner’s counsel attached Mr. Waller’s medical records to a sentencing memorandum

submitted to the Court and entered the records into evidence on the first day of the sentencing

proceedings. (Doc. 127 (Notice of Manual Filing of CD of Medical Records), Doc. 151 at 144–

45 [May 4, 2015, Hearing Tr. at 144:15–25, 145:5–6] in Case No. 1:12-cr-50.) When questioning

the Government’s witnesses, Petitioner’s counsel repeatedly referred to specific information found

in Mr. Waller’s medical records. (See, e.g., Doc. 151 [May 4, 2015, Hearing Tr. at 67:7–14

(directing Agent Kennedy to Erlanger Record in Mr. Waller’s medical chart), 146–150 (cross

examining Government’s expert on specific documents in Mr. Waller’s medical records)] in Case

No. 1:12-cr-50.) Petitioner’s counsel also made clear in the hearings that Petitioner did not

prescribe the Xanax involved in Mr. Waller’s overdose. (See, e.g., Doc. 151 [May 4, 2015,

Hearing Tr. at 67:11–14 (Petitioner’s counsel clarifies Mr. Waller overdosed on Xanax), 120:18–

21 (Government’s expert states Petitioner did not prescribe Xanax)] in Case No. 1:12-cr-50.)

Thus, the record directly contradicts Petitioner’s claims that his counsel failed to review or use Mr.

Waller’s medical records and that they defended him as if he had been responsible for Mr. Waller’s

overdose.

As a result, Petitioner has not demonstrated his counsel’s performance was deficient, and

his ineffective assistance of counsel claim on this issue will be denied.

2. Failure to Call Witnesses

Petitioner claims his attorneys’ failure to call Mr. Waller, Gloria Woods, a nurse

practitioner at Petitioner’s clinic, or any of the hospital or emergency room personnel involved in

the treatment of Mr. Waller’s overdose as witnesses at his sentencing hearing constituted a

deficient performance that prejudiced his defense. (Doc. 2 at 6, 23.) Petitioner contends testimony

from Mr. Waller, Ms. Woods, or the above medical personnel would have been exculpatory on

Petitioner’s behalf by clarifying that Mr. Waller did not overdose on any medication Petitioner

prescribed. (Id.) Petitioner argues that it is highly probable the outcome of his sentencing hearing

may have been different but for his attorneys’ deficient performance on this issue. (Id.)

In response, the Government first notes that the decision to call a witness is generally a

matter of trial strategy, and the failure to call a witness only constitutes ineffective assistance of

counsel if it deprives a defendant of a substantial defense. (Doc. 15 at 17.) The Government then

explains that Mr. Waller’s testimony would not have helped Petitioner because the parties agreed

Mr. Waller’s overdose was not caused by medication Petitioner prescribed, and Mr. Waller’s

testimony “would have undoubtedly highlighted Petitioner’s failure to detect and prevent [Mr.

Waller’s] dangerous behavior.” (Id. at 18.) As a result, the Government argues his counsel’s

decision was strategic and prudent. (Id.)

“The failure to call favorable witnesses can amount to ineffective assistance where it results

in prejudice to the defense.” Pillette v. Berghuis, 408 F. App’x 873, 884 (6th Cir. 2010) (citing

Towns v. Smith, 395 F.3d 251, 258–60 (6th Cir. 2005)). Specifically, a defendant must

demonstrate “a reasonable probability that the outcome of the proceedings would have been

different had his counsel introduced the [witness’s] testimony.” Fitchett v. Perry, 644 F. App’x

485, 493 (6th Cir. 2016) (internal quotations omitted).

Here, Petitioner claims testimony from Mr. Waller, Ms. Woods, or the medical personnel

involved in treating Mr. Waller’s overdose would have been exculpatory on the issue of whether

he prescribed the medication on which Mr. Waller overdosed. (Doc. 2 at 6, 23.) However, as the

Court has already discussed, there was no dispute at sentencing that Mr. Waller overdosed on

medication Petitioner did not prescribe. Because Petitioner has not offered any other purpose for

such testimony, Petitioner has failed to demonstrated that testimony from Mr. Waller, Ms. Woods,

or any of the medical personnel involved in Mr. Waller’s overdose would have changed the

outcome of the proceedings. As a result, Petitioner has not shown that his counsel’s decision

prejudiced his defense, and his ineffective assistance of counsel claim on this issue will be denied.

3. Failure to Allow Petitioner to Speak with Expert Prior to Sentencing

Petitioner contends that his attorneys did not allow him to speak with Dr. Taylor, the pain

management and addiction specialist who testified for Petitioner, until the sentencing proceedings.

(Doc. 2 at 15.) Petitioner argues that as a result Dr. Taylor took the stand “very much

misinformed.” (Id.)

The Government asserts the decision of whether to let a defendant speak with an expert is

a strategic litigation choice. (Doc. 15 at 18–19.) The Government contends it was reasonable for

Petitioner’s counsel to not allow Petitioner to speak with Dr. Taylor before sentencing, especially

because any conversations between Petitioner and Dr. Taylor might have been subject to cross

examination. (Id.) The Government also asserts Petitioner has not identified any information he

would have told the expert that would have changed the outcome of the hearing. (Id. at 19.) Thus,

the Government contends there were no errors by Petitioner’s counsel. (Id.)

Dr. Taylor provided his expert opinion on whether Petitioner’s practices with respect to

four of his patients were medically reasonable. (Doc. 152 at 72, 73 [Taylor Direct Exam. at

239:19–25, 240:1–8] in Case No. 1:12-cr-50.) After reviewing the patients’ medical records, Dr.

Taylor ultimately concluded that Petitioner’s prescription practices and treatment decisions with

respect to these patients were reasonable. (Id. at 95–96, 100, 107, 114 [Taylor Direct Exam. at

262:10–25, 263:1–3, 267:16–25, 274:9–24, 281:3–18].)

Petitioner has not offered any evidence to suggest attorneys routinely allow defendants to

speak with experts prior to sentencings or that a failure to do so falls outside the “wide range of

reasonable professional assistance.” See Sims, 970 F.2d at 1580 (internal quotations and citations

omitted).

Further, even assuming Petitioner’s counsel were deficient in failing to allow Petitioner to

meet with Dr. Taylor before the sentencing proceedings, Petitioner has not provided any evidence

that his counsel’s decision prejudiced his defense. Petitioner does not point to any specific

testimony that was incorrect because Petitioner did not meet with Dr. Taylor until his sentencing

hearing, nor is there any evidence that Dr. Taylor’s meeting with Petitioner prior to the hearing

would have resulted in a change in the hearing’s outcome.

Accordingly, the Court will deny Petitioner’s ineffective assistance of counsel claim on

this issue.

4. Misrepresentation of Gloria Woods’s Credentials

Petitioner asserts his attorneys misled the Court regarding Gloria Woods’s credentials and

abilities by causing the Court to believe Ms. Woods was a physician’s assistant when she was

actually a nurse practitioner. (Doc. 2 at 21.) Petitioner asserts this mistake led the Court to

undervalue Ms. Woods’s testimony, and thus prejudiced his defense. (Id. at 21–22.)

The Government states Ms. Woods was only mentioned twice: first, Agent Kennedy

testified that Ms. Woods worked for Petitioner as an “in-house psychologist,” and second, Dr.

Loyd stated Ms. Woods was a nurse practitioner at Petitioner’s clinic. (Doc. 15 at 19.) Thus, the

Government asserts there is no evidence Ms. Woods’s credentials were misrepresented. (Id.)

The record demonstrates that Ms. Woods’s credentials were not misrepresented at the

sentencing proceedings. Agent Kennedy stated twice on cross examination that Ms. Woods acted

as the in-house psychologist for Petitioner’s clinic. (Doc. 151 [Kennedy Cross Exam. at 70:19–

20, 71:1–2] in Case No. 1:12-cr-50.) In addition, Petitioner’s counsel provided Mr. Waller’s

medical chart to Dr. Loyd, which confirmed Ms. Woods was a nurse practitioner. (Id. [Loyd Cross

Exam. at 164:24–25, 165:1–15].)

Thus, there is nothing in the record to suggest Ms. Woods’s credentials were

misrepresented to the Court, nor that his counsel misled the Court in any manner with respect to

her credentials or abilities. Because Petitioner has not demonstrated his counsel erred when

discussing Ms. Woods’s credentials, his claim of ineffective assistance of counsel based on Ms.

Woods’s credentials will be dismissed.

5. Failure to Object to Firearms

Petitioner asserts his attorneys should have objected to the Government’s claims that

firearms were involved in his case. (Doc. 2 at 8, 25.) Petitioner argues no firearms were involved,

and thus his counsel’s failure to object clearly constitutes ineffective assistance of counsel. (Id.)

In response, the Government explains that the evidence presented at the hearings prevented

Petitioner’s counsel from denying the existence of weapons at Petitioner’s office. (Doc. 15 at 19–

20.) The Government states that two witnesses testified to finding firearms at Petitioner’s office

or on Petitioner’s person. (Id.) In addition, the Government notes Petitioner told the Court at his

sentencing, “when they stopped me, they got a .22.” (Id.) Based on this evidence, the Government

asserts Petitioner’s counsel could not have objected to all references to firearms, but did

successfully object to the firearm enhancement. (Id.)

The evidence presented at the sentencing hearing demonstrates Petitioner’s counsel were

not ineffective with respect to the evidence of firearms. Mr. Whitson testified that a firearm was

located in the reception area of Petitioner’s clinic (Doc. 151 at 19 [Whitson Direct Exam. at 19:17–

24], 25 [Whitson Cross Exam. at 25:5–10] in Case No. 1:12-cr-50.) Agent Kennedy testified a

firearm was recovered from Petitioner’s person (Doc. 151 at 43 [Kennedy Direct Exam. at 43:4–

9], 86 [Kennedy Cross Exam. at 86:17–19] in Case No. 1:12-cr-50), and a security guard at the

clinic carried a firearm (Doc. 151 at 41–42 [Kennedy Direct Exam. at 41:15–20, 42:1–6] in Case

No. 1:12-cr-50). There is no evidence this testimony was false or misleading. Further, Petitioner

has not provided any objections his counsel could have raised in response to the witnesses

testifying to what they observed. See Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998)

(“Counsel was not required to raise meritless arguments to avoid a charge of ineffective assistance

of counsel.”). Thus, Petitioner has not provided any evidence to overcome the presumption that

his counsel’s conduct was reasonable. Accordingly, Petitioner’s claim of ineffective assistance of

counsel on this issue will be denied.

6. Claim of Cumulative Error

Finally, Petitioner claims “when one considers the total effect of all of my Attorney’s errors

. . . coupled with their performance being well below the objective standard of reasonableness, and

grossly deficient, one might conclude that the outcome of my sentencing would have been

different.” (Doc. 2 at 21.) Thus, it appears Petitioner is contending the cumulative effect of the

alleged errors supports a separate ineffective assistance of counsel claim.

In response, the Government asserts that, even if a “cumulative errors” claim is a viable

one, it does not provide relief when a petitioner fails to establish any errors by counsel. (Doc. 15

at 20.)

As discussed above, Petitioner has not demonstrated any errors by his counsel rising to the

level of a deficient performance that prejudiced his defense. Accordingly, even assuming

Petitioner’s claim of cumulative error can provide a basis for relief, his claim fails because “there

are simply no errors to cumulate.” See Getsy v. Mitchell, 495 F.3d 295, 317 (6th Cir. 2007) (en

banc).

C. Brady Allegations

On July 24, 2018, six months after Petitioner filed his 28 U.S.C. § 2255 petition, Petitioner

filed a motion to expand the record pursuant to Rule 7 of the Rules Governing 2255 Proceedings.

(Doc. 11.) Within that motion, Petitioner alleged that the Government withheld exculpatory

evidence, specifically Mr. Waller’s medical records and two affidavits procured by Petitioner’s

former counsel. (Id. at 1–2.) Petitioner asserts the Government’s conduct violated its duties under

Brady v. Maryland, 373 U.S. 83 (1963). (Id.) The Court interpreted Petitioner’s motion as a

motion to supplement, granted his motion, and directed the Government to respond to Petitioner’s

Brady claim. (Doc. 12.)

The Government first contends Petitioner’s supplement should be dismissed as untimely

because Petitioner’s allegations of Brady violations do not arise out of the same core of operative

facts as the rest of his § 2255 petition. (Doc. 15 at 21–24.) The Government then asserts that

Petitioner has not established any Brady violations because Petitioner’s counsel had the medical

records and the affidavits Petitioner is claiming were withheld. (Id.) Finally, even if the medical

records were not provided, the Government asserts the records would not have been exculpatory

or favorable to Petitioner. (Id. at 22–23.)

Under Federal Rule of Civil Procedure 15(c)(2), “pleading amendments relate back to the

date of the original pleading when the claim asserted in the amended plea ‘arose out of the conduct,

transaction, or occurrence set forth or attempted to be set forth in the original pleading.’” Mayle

v. Felix, 545 U.S. 644, 656 (2005) (quoting Fed. R. Civ. P. 15(c)(2) in the context of federal habeas

proceedings). Accordingly, an amended pleading will relate back if the original claims and the

new claims are “tied to a common core of operative facts[.]” Id. at 664. If an amended pleading

does not relate back to the original claim and falls outside the one-year statute of limitations, it

will be denied. See Howard v. United States, 533 F.3d 472, 475–76 (6th Cir. 2008).

Petitioner’s original § 2255 petition challenged the validity of his guilty plea and raised

several claims of ineffective assistance of counsel based on his counsel’s performance at the

sentencing hearing. (Doc. 2.) The petition did not discuss any facts related to the Government’s

actions prior to the sentencing hearings. (See id.) Petitioner’s new claim relates to the

Government’s actions prior to the sentencing hearings, specifically the alleged withholding of

exculpatory evidence. (Doc. 11 at 1–2.) As a result, the original claims and the new claim are not

tied to a common core of operative facts. Because the Brady claim was filed after the one-year

statute of limitations expired, the new claim is untimely.

However, even if the new claim did relate back to the original claims, Petitioner’s Brady

claim would fail on the merits.

To succeed on a Brady claim, a petitioner must demonstrate that (1) the evidence is

favorable to the petitioner “either because it is exculpatory, or because it is impeaching;” (2) the

evidence was suppressed by the Government “either willfully or inadvertently;” and (3) “prejudice

must have ensued.” Banks v. Dretke, 540 U.S. 668, 691 (2004) (internal quotations and citations

omitted).

Here, Petitioner contends Mr. Waller’s medical records and two affidavits from pain

specialists were withheld by the Government. However, as discussed above, his counsel entered

Mr. Waller’s medical records into evidence during the sentencing hearing and discussed the

records throughout the hearings. Further, the two affidavits from pain specialists were obtained

by Petitioner’s former counsel, not the Government. Thus, the Government did not withhold any

evidence from Petitioner. As a result, Petitioner has failed to demonstrate that the evidence was

suppressed by the Government. See Banks, 540 U.S. at 691. Accordingly, Petitioner’s Brady

claim will be denied.

VI. CONCLUSION

For the foregoing reasons, Petitioner’s § 2255 motion (Docs. 2, 11) will be DENIED.

Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of appealability

(“COA”) should be granted. A COA should issue if petitioner has demonstrated a “substantial

showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To warrant a grant of a

COA, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,

484 (2000). The Court finds that reasonable jurists could not conclude that Petitioner’s claims

deserve further review, as Petitioner has failed to make a substantial showing of the denial of a

constitutional right and reasonable jurists would not debate the Court’s finding that Petitioner is

not entitled to relief under § 2255. Accordingly, a COA will not issue. Further, the Court will

CERTIFY that any appeal from this action would not be taken in good faith and would be totally

frivolous. Accordingly, this Court will DENY Petitioner leave to proceed in forma pauperis on

appeal. See Fed. R. App. P. 24.

An appropriate order will enter.

/s/

CURTIS L. COLLIER

UNITED STATES DISTRICT JUDGE