Daisy Miller v. United States

USCA11 Case: 20-11988 Document: 84-1 Date Filed: 07/10/2023 Page: 1 of 30

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-11988

____________________

DAISY MILLER,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket Nos. 1:16-cv-21090-JEM,

1:12-cr-20757-JEM-2

____________________

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2 Opinion of the Court 20-11988

Before WILSON, NEWSOM, and LAGOA, Circuit Judges.

LAGOA, Circuit Judge:

After a five-week trial, a jury found Daisy Miller guilty on

various counts relating to Medicare fraud. During the trial, the jury

heard from many witnesses and was presented with many docu-

ments corroborating the government’s theory of the case and dis-

crediting Miller’s testimony. Following our affirmance of her con-

viction in United States v. Kallen-Zury (Kallen-Zury I), 629 F. App’x

894 (11th Cir. 2015), Miller moved to vacate her conviction under

28 U.S.C. § 2255. The district court denied the motion, and Miller

now appeals that denial. On appeal, she argues that her trial coun-

sel should have called several witnesses in her defense, that coun-

sel’s failure to do so constituted ineffective assistance of counsel,

and that we should vacate her conviction and grant her a new trial.

For the reasons explained below, and with the benefit of oral

argument, we conclude that trial counsel’s decision not to call

these witnesses did not prejudice Miller or constitute deficient per-

formance. Accordingly, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Underlying Criminal Case

This is the second time Miller has come before this Court

regarding her trial. We outlined the facts of this case in our previ-

ous decision affirming Miller and her co-defendants’ convictions in

their direct appeal, see Kallen-Zury I, 629 F. App’x 894, as well as in

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our decision affirming the district court’s denial of Karen Kallen-

Zury’s—Miller’s co-defendant—motion for a new trial, see United

States v. Kallen-Zury (Kallen-Zury II), 710 F. App’x 365 (11th Cir.

2017).

On October 2, 2012, a federal grand jury in the Southern Dis-

trict of Florida returned an indictment charging Miller with the fol-

lowing offenses: conspiracy to commit health care fraud and wire

fraud, in violation of 18 U.S.C. § 1349 (Count 1); wire fraud, in vio-

lation of 18 U.S.C. §§ 1343 and 2 (Counts 2 to 6); health care fraud,

in violation of 18 U.S.C. §§ 1347 and 2 (Counts 7 and 8); and con-

spiracy to defraud the United States and to pay and receive health

care kickbacks, in violation of 18 U.S.C. § 371 (Count 9). The in-

dictment also charged her co-defendants Karen Kallen-Zury, Chris-

tian Coloma, Michele Petrie, and Gloria Himmons with the same

or related conspiracy, fraud, and kickback offenses. On November

2, 2012, Omar Malone was appointed pursuant to the Criminal Jus-

tice Act (the “CJA”) to represent Miller, who elected to proceed to

trial.

At trial, the government established that Hollywood Pavil-

ion (“HP”) is “a mental health facility that included both inpatient

and outpatient treatment programs.” Kallen-Zury I, 629 F. App’x at

897. Miller was a licensed clinical social worker who began work-

ing for HP in 2002. At all relevant times, she was the clinical direc-

tor for HP’s inpatient facility and ran its day-to-day operations. Id.

Miller worked closely with Chris Gabel, HP’s Chief Operating Of-

ficer, and Dr. Alan Gumer, HP’s psychiatric medical director. Id.

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4 Opinion of the Court 20-11988

During Miller’s tenure at HP, the facility paid recruiters to

recruit patients on its behalf and received Medicare reimburse-

ments for those patients. Id. This practice, however, is illegal. The

government’s theory of the case was that Miller and her co-defend-

ants conspired to defraud the United States by creating a health

care kickback scheme through Medicare reimbursements and that

Miller participated in the scheme in order to keep her job, title, sal-

ary, and status.

“The backbone of the government’s case was the testimony

of several patient recruiters”—Keith Humes, Jean Luc Veraguas,

Mathis Moore, Curtis Gates, and Gloria Himmons—“who pleaded

guilty to Medicare fraud related to HP and other facilities.” Id.

“These recruiters would find patients from as far away as Maryland

and would pay to have the patients ride buses down to HP in Hol-

lywood, Florida.” Kallen-Zury II, 710 F. App’x at 367. “Most of

the[se] patients were drug addicts who did not need the psychiatric

services offered at HP.” Id. Therefore, “the conspirators often fal-

sified the patients’ records to reflect serious psychiatric problems

or told the patients to claim psychiatric issues upon admission” to

HP. Id. HP would then pay the recruiter for each patient the re-

cruiter sent to its facility. See id. at 367–68. Additionally, HP only

admitted “patients who had enough days on their Medicare plans

to have their treatment periods paid for by the government.”

Kallen-Zury I, 629 F. App’x at 897. When the Medicare money ran

out for a patient, the facility would stop treatment and discharge

the patient. Id. “Some . . . recruiters also ran halfway houses and

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made extra money when HP referred discharged patients to those

facilities.” Id.

“At trial, the recruiters explained that HP had them enter

into contracts that stated they were providing either ‘case manage-

ment’ or ‘marketing’ services.” Kallen-Zury II, 710 F. App’x at 367–

68. “HP also asked the recruiters to submit reports documenting

their purported performance of these services.” Id. at 368. “The

recruiters’ reports, however, were false,” as the recruiters “were

never asked to and never did provide these other services.” Id. In-

stead, the recruiters “were paid solely to refer patients.” Id. The

government also produced various documents at trial, including a

“patient register” that tracked which patients were referred by

which recruiters. Id. at 370.

Several recruiters, each of whom testified under a grant of

immunity, claimed to have discussed with Miller how HP would

pay them to recruit patients and how HP would admit the re-

cruited patients. For instance, Humes testified that when he had

trouble admitting one of his recruited patients to HP, he called Mil-

ler, and she arranged for his patient to be admitted to HP. Him-

mons testified that, at first, she worked for Humes to recruit pa-

tients for HP, and Miller later asked her to send patients to HP

through Veraguas. Eventually, Miller and Kallen-Zury hired Him-

mons to continue recruiting patients as a “marketer.” Miller also

instructed Himmons to submit false monthly reports detailing her

nonexistent marketing services. Moore testified that he met with

Miller multiple times to get paid to recruit patients for HP and that

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6 Opinion of the Court 20-11988

she instructed him to have his patients falsely claim that they were

suicidal and off their medication to be admitted to HP. Miller also

agreed to pay Moore through his non-profit company to make his

payments appear legitimate. Veraguas similarly testified that he

called Miller to get paid to recruit patients for HP.

The government also presented the testimony of Dr. Gumer

to explain that most of the patients admitted to HP did not need

psychiatric treatment, either because they only had substance

abuse issues or because they were homeless. Kallen-Zury v. United

States (Kallen-Zury IV), No. 20-12385, 2023 WL 164065, at *2 (11th

Cir. Jan. 12, 2023). Dr. Marci Kagan and Marcia Starkman also tes-

tified for the government. Dr. Kagan, a psychotherapist at HP, tes-

tified that Miller told her to “stress the negative” in her patient files

because, otherwise “the patient wouldn’t have criteria to be in the

hospital.” Starkman, an HP employee, testified that she once

learned patient files were being fabricated at HP and notified Miller

about an incident where a doctor falsified a note and then tried to

have the note shredded. Miller, however, never addressed the is-

sue, and when Starkman tried to raise the issue in an administrative

meeting, Miller jammed her elbow in Starkman’s side, signaling

that Starkman should keep quiet.

After the government rested its case, the defendants, includ-

ing Miller, argued that “they acted in good faith and believed the

recruiters were providing lawful ‘marketing’ services.” Kallen-Zury

I, 629 F. App’x at 897. They also argued that “HP’s lawyers drafted

the contracts with the recruiters and instructed HP’s management

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[on] how to ensure that their agreements with the recruiters fell

within statutory and regulatory ‘safe harbor’ provisions.” Id. at

897–98.

Miller’s trial counsel, Malone, called Miller to testify in her

own defense. Miller denied all the charges in the indictment. She

testified that she never asked anyone to increase the severity of

their notes to justify the patients’ continued stays at HP. She knew

that HP paid some halfway-house owners for marketing services

but did not believe that HP was paying these owners to send pa-

tients to HP. According to Miller, Veraguas and Humes “provided

a lot of case management,” and Himmons “did business develop-

ment” for HP. Miller also testified that she did not determine how

long patients stayed in HP’s inpatient facility and that HP’s psychi-

atrists decided when to admit and discharge patients. Miller dis-

puted the testimony of all of the government’s witnesses regarding

their interactions with her. Malone called no other witnesses.

As an important side note, the government did not receive

patient files for the two patients listed in Counts 7 and 8. See Kallen-

Zury IV, 2023 WL 164065, at *6 n.4. The government raised a Fed-

eral Rule of Criminal Procedure 16 objection to the use of the two

patient files, which the defense expert, Dr. Jeffrey Danziger, had re-

viewed. Id. The district court sustained the objection and preemp-

tively excluded any testimony on the two patients, such that Dr.

Danziger could not testify on those two patients if he were called

as a witness. Id. That said, Dr. Danziger was not called as a witness

by Malone.

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8 Opinion of the Court 20-11988

The jury found Miller guilty of all the charges. Kallen-Zury I,

629 F. App’x at 898. The judge sentenced Miller to fifteen years in

prison. After her conviction, Miller filed a direct appeal, and we

affirmed her conviction. See id.

B. Motion to Vacate

On March 25, 2016, Miller moved to vacate her convictions

under 28 U.S.C. § 2255, asserting that Malone provided ineffective

assistance under Strickland v. Washington, 466 U.S. 668 (1984). Of

relevance to this appeal, Miller claimed that Malone failed to con-

duct an adequate investigation, consult and present an expert wit-

ness, and subpoena potential witnesses for trial. In support of her

motion, Miller attached the following: affidavits from herself and

her husband, Dale Miller; a twenty-nine-page summary of HP em-

ployees and their potential testimony; interview reports of prospec-

tive witnesses from Malone’s investigator; and many emails from

Malone, Miller, and other individuals. Miller’s motion referenced

a separate list of prospective trial witnesses that she provided

Malone after he was appointed to represent her. Miller also filed

affidavits from potential trial witnesses who were not called at trial.

The district court referred Miller’s motion to a magistrate

judge. The magistrate judge then held an evidentiary hearing on

Miller’s motion. The following testimony was elicited at the evi-

dentiary hearing.

First, Robin Smith, HP’s utilization review coordinator and

psychotherapist, stated that, if called as a witness, she would have

testified that in her role as a coordinator, she reviewed patient files,

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and she did not notice any inconsistencies among entries by psy-

chiatrists, therapists, and others. According to Smith, Miller super-

vised the therapists but did not supervise HP’s psychiatrists, medi-

cal doctors, or nurses. Smith stated that patients were not admitted

to HP if they did not have the appropriate psychiatric criteria for

admission. She was unaware of any policy to keep patients at HP

for the duration of their Medicare coverage, regardless of their psy-

chiatric needs, or to discharge them when their Medicare coverage

ended. On cross-examination, Smith conceded that she was not

responsible for billing or marketing decisions. She did not know if

HP’s “marketers” were recruiters who were paid to bring patients

to HP. She was also not present for any meetings that Miller had

with Moore, Humes, or Himmons.

Manuel Llano is a healthcare CEO who supervised Miller at

Sunrise Regional Medical Center (“Sunrise”) from 1999 through

2001, before she started working at HP. Llano testified that he of-

fered Miller a job at least twice after she left Sunrise, but she de-

clined those offers because she enjoyed working at HP. No one

contacted Llano before the trial about testifying on Miller’s behalf.

On cross-examination, Llano conceded that he was not present at

the meetings between Miller and HP’s recruiters, never saw Miller

interact with patients at HP, never reviewed any of HP’s patient

charts, and was unaware of any instructions HP gave its employees

about completing patient charts.

Dr. Michael Piercey is the director of a medical facility that

tests new medications and was the Chairman and CEO of Sunrise

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10 Opinion of the Court 20-11988

when Miller worked there. Dr. Piercey testified that he was im-

pressed by Miller’s intelligence, energy, and ethics, and would “be

delighted to have [Miller] work with [him] again[,] . . . assuming

she were available and interested.” Dr. Piercey was not contacted

before the trial. On cross-examination, Piercey conceded that he

was unfamiliar with HP’s admissions process, did not know

whether HP paid recruiters to recruit patients, and did not know

what Miller told Dr. Gumer and other HP employees.

Rita Sordellini worked as a part-time psychotherapist for

HP. Whenever Sordellini reviewed patient files at HP, she never

noticed inconsistencies among the notes entered by different indi-

viduals. She did not recall therapists raising concerns about incon-

sistencies at the weekly treatment team meetings that Miller facili-

tated. Sordellini never saw evidence of Miller instructing therapists

to stress a patient’s negative symptoms to ensure that Medicare

would reimburse HP. Miller never told her that particular patients

needed to be discharged because they were out of Medicare days

nor instructed her to keep patients longer because they had Medi-

care days remaining. Sordellini only had a “very quick” conversa-

tion with Malone or his investigator before trial and volunteered

to testify for Miller, but she was not contacted afterward. On cross-

examination, Sordellini conceded that Malone emailed her asking

her to contact him about “anything or anyone that would be help-

ful to [Miller’s] cause.” Sordellini acknowledged that she was not

responsible for discharge, insurance, or marketing decisions at HP

and would not be aware if HP hired “marketers” to recruit patients.

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She also conceded that she was not present at any meetings be-

tween Miller and the recruiters.

Melvin Hunter oversaw the Admissions Department at HP,

and he testified that patients who arrived at HP were usually “pre-

cleared” through an interview process and that doctors at HP ulti-

mately made the final admission decision. He also testified that HP

admitted patients even though there was no chance HP would be

paid on “quite a few” occasions. As for his willingness to testify in

Miller’s case, Hunter explained that he had declined to testify be-

fore the grand jury because his attorney was not permitted to ac-

company him into the grand jury room. Hunter, however, stated

that he would have testified at Miller’s trial, even if his attorney

advised him not to testify, because he believed that the allegations

against HP and its staff were false. Hunter did not know if anyone

contacted his attorney about testifying at Miller’s trial or if his

counsel invoked his Fifth Amendment rights. On cross-examina-

tion, Hunter acknowledged that he did not know what happened

to the patient files after the admissions process was completed or if

they were falsified after he saw them. Hunter also conceded that

he was not privy to all the conversations between Miller and Dr.

Gumer, other staff members, or the recruiters.

Michael Calabria provided an affidavit but did not testify at

Miller’s hearing. According to his affidavit, he worked with Miller

as a psychotherapist at Sunrise and HP and presently works at HP’s

successor facility. Calabria stated that Miller was a “great supervi-

sor” and a “great mental health professional.” Calabria also stated

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12 Opinion of the Court 20-11988

that the quality of care at HP was “very good” and that the doctors

were responsible for admitting and discharging patients. Miller

never told him to write anything specific in his patients’ charts. Fi-

nally, he stated that no one contacted him about testifying at Mil-

ler’s trial.

Sandra Novak also provided an affidavit but did not testify at

Miller’s hearing. Novak worked with Miller as a therapist at Sun-

rise and HP. In Novak’s opinion, Miller would not have jeopardized

her career, family, and future to participate in the charged offenses.

No one contacted her about testifying at Miller’s trial.

Additionally, Roy Rindom provided an affidavit but did not

testify at Miller’s hearing. Rindom worked with Miller as a psycho-

therapist at HP from 2004 to 2007. Rindom’s job was to conduct

patient evaluations, including psychosocial interviews for admitted

patients. Rindom stated that Miller never asked him to do anything

unethical and that there were “no shenanigans” in connection with

admissions, discharges, or treatment of patients. However, Rin-

dom acknowledged that he was “engrossed in [his] daily duties and

. . . was not aware of what Daisy Miller was doing at any given mo-

ment of the work day.” Rindom was also not involved in insur-

ance-based decisions at HP. Finally, according to Rindom, no one

contacted him about testifying at Miller’s trial. 1

1 Miller concedes, however, that contrary to Rindom’s affidavit, Malone inter-

viewed Rindom before the trial.

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Karen Bryan provided an affidavit but did not testify at Mil-

ler’s hearing. She monitored patients, took vital signs, and assisted

with the intake process. Bryan acknowledged that she had little

interaction with Miller but thought Miller was “amazing.” How-

ever, she knew nothing about HP’s billing process. No one con-

tacted her about testifying at Miller’s trial.

Miller also testified at the evidentiary hearing. After she was

indicted, she prepared a list of witnesses she believed would help

her defense and provided it to Malone. Miller was aware that

Malone agreed to a joint defense agreement with her co-defend-

ants, and they attended the weekly joint defense meetings to-

gether. But as the trial grew closer, Miller concluded that Malone’s

loyalty was to the joint defense theme rather than to her individual

defense. When Miller told Malone that she wanted a medical ex-

pert to testify on her behalf and suggested several psychiatrists,

Malone told her that Kallen-Zury’s attorney, Michael Pasano, had

retained an expert, Dr. Danziger, who would testify about the clin-

ical issues. Malone never discussed with Miller the reason why Dr.

Danziger did not testify.

On cross-examination, Miller conceded that she did not in-

clude Calabria, Hunter, Llano, Piercey, Sordellini, and Bryan as po-

tential witnesses in the twenty-nine-page memorandum she pre-

pared for Malone before trial. Miller also acknowledged that, con-

trary to Rindom’s affidavit, Malone had interviewed him before the

trial. Miller also conceded that Malone contacted other witnesses

on her behalf, sent her interview reports, and gave her periodic

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14 Opinion of the Court 20-11988

updates. Finally, she conceded that none of her witnesses at the

evidentiary hearing interacted with HP’s recruiters, with the possi-

ble exceptions of Humes and Veraguas.

Malone testified on behalf of the government. Malone is an

experienced criminal defense attorney who has tried between fifty

and sixty jury trials to verdict. Malone testified that, for this case,

he conducted an extensive pretrial investigation, which entailed re-

viewing discovery at the government’s warehouse, examining pa-

tient files and other documents, hiring an investigator to obtain wit-

ness statements, meeting and sharing information with attorneys

for Miller’s co-defendants, and identifying and interviewing poten-

tial witnesses. As for the joint defense agreement, Malone testified

that he entered into the agreement in order to pool resources,

jointly attack the government’s charges, identify who the govern-

ment’s witnesses might be, and take advantage of the work that the

other defense attorneys had already done. As to his strategy for

Miller’s defense, Malone testified that he intended to present Miller

to the jury as “an upstanding citizen of this community who took

her work very seriously” and “looked out for the well-being of [HP]

patients.” He believed that Miller would be an excellent witness in

this regard, and he decided not to call other witnesses so that the

government would be unable to repeat, through cross-examina-

tion, the negative information it had presented in its case-in-chief.

As to the allegations about Miller’s participation in recruiting pa-

tients, Malone testified that he did not have any evidence to refute

them other than Miller’s general denial.

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Next, as to his investigation of potential witnesses, Malone

remembered speaking with Llano, could not recall who Dr. Piercey

was, could not recall if he spoke with Smith, and recalled interview-

ing Sordellini but could not recall any details about their conversa-

tion. With respect to Hunter, Malone testified that he could not

contact him directly because he was represented by counsel and

that Hunter’s counsel would not let him testify at Miller’s trial. As

for Dr. Danziger, Malone determined that Dr. Danziger could not

have explained why so many out-of-state patients were admitted

when they could have gotten the same services much closer to

home. Malone noted that Dr. Danziger admitted that the out-of-

state patients were “a problem.” Malone was also concerned that

Dr. Danziger would be cross-examined about how his opinion as-

sumed that the patient files were not fabricated when Dr. Gumer

had already testified that the patient files were fabricated.

The magistrate judge also took judicial notice of Dr. Dan-

ziger’s testimony from the hearing on Kallen-Zury’s § 2255 mo-

tion. Kallen-Zury retained Dr. Danziger in May 2012 to review a

sample of HP patient files. Over a one-year period, Dr. Danziger

reviewed thirty-six charts of nineteen different patients to deter-

mine whether there were reasonable grounds for the patients’ ad-

missions. At Kallen-Zury’s § 2255 hearing, Dr. Danziger testified

that all nineteen patients met Medicare’s standards for admission

to HP. As for suspicions of document fabrication, Dr. Danziger

testified that it was unlikely that the charts he reviewed were fabri-

cated because the entries were made by multiple practitioners and

internally consistent, and “it would stretch credibility that

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16 Opinion of the Court 20-11988

everyone was faking.” Still, Dr. Danziger conceded that he could

not determine whether the notes he reviewed were truthful and

could only determine that they were consistent across multiple

medical practitioners. Finally, Dr. Danziger testified that he did

not remember speaking with Malone. But contrary to his testi-

mony at Kallen-Zury’s § 2255 hearing, Dr. Danziger’s declaration

filed here states that on June 15, 2013, he spoke with Malone about

his proposed trial testimony.

Finally, the magistrate judge took judicial notice of Pasano’s

testimony from Kallen-Zury’s § 2255 hearing. Pasano’s trial strat-

egy was to build a case around Kallen-Zury’s good faith in operat-

ing HP. Pasano testified that an important part of his defense strat-

egy was to have Kallen-Zury testify and that he made a tactical de-

cision not to call other witnesses once she completed her testi-

mony. He had reservations about the limited nature of Dr. Dan-

ziger’s testimony because Dr. Danziger only reviewed a few patient

files. He also feared that, in cross-examining Dr. Danziger, the gov-

ernment could highlight its contention that the patient records had

been falsified, rendering Dr. Danziger’s opinion incorrect for hav-

ing assumed the veracity of the patient files.

On May 24, 2019, after the evidentiary hearing, the magis-

trate judge issued a 110-page report and recommendation, recom-

mending that the district court deny Miller’s motion because Miller

had not satisfied the performance prong or the prejudice prong un-

der Strickland and also recommending that the district court issue

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23-10182 Opinion of the Court 17

a certificate of appealability (“COA”) regarding Malone’s failure to

call additional witnesses.

As for the performance prong of Strickland, the magistrate

judge explained that Malone’s decision not to call additional wit-

nesses, “made after balancing the potential risks against the possi-

ble benefits,” was “logical, rational, and understandable” and there-

fore “reasonable.” The magistrate judge noted that Malone had

spent about 1,200 hours defending Miller and that, in reviewing

counsel’s performance, a court must avoid using “the distorting ef-

fects of hindsight” and instead must evaluate the reasonableness of

Malone’s performance from his perspective at the time. And the

magistrate judge emphasized that Pasano had made exactly the

same decision as Malone in not calling additional witnesses.

As to the prejudice prong of Strickland, the magistrate judge

concluded that “there is no reasonable probability that [Miller’s]

prosecution would have had a different outcome had Malone

called” witnesses other than Miller at trial. Most of the witnesses

could only offer impermissible character evidence about Miller,

which the trial court had already excluded. Other witnesses were

not “smoking gun” type witnesses. Several witnesses never worked

at HP in the first place, so they could not testify about what Miller

did or did not do at HP or what she did or did not know about the

fraud at HP. Other witnesses did work at HP during the years at

issue, but they did not know the inner workings of HP’s finance,

marketing, insurance, and admissions departments. Still other wit-

nesses were not at HP every day, were unaware of what Miller did

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18 Opinion of the Court 20-11988

every day, or were not privy to the conversations that Miller had

with those involved in the fraud.

On April 30, 2020, the district court adopted the “thorough,

exhaustive, and persuasive” report and recommendation and de-

nied Miller’s motion. The district court then issued a COA only as

to Miller’s claim “that her former trial counsel was ineffective for

failing to call any witnesses at trial other than [Miller] herself.”

This appeal ensued.

II. STANDARD OF REVIEW

In a § 2255 proceeding, we review the district court’s legal

conclusions de novo and the underlying factual findings for clear er-

ror. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004). “We

allot ‘substantial deference to the factfinder . . . in reaching credi-

bility determinations with respect to witness testimony.’” Devine

v. United States, 520 F.3d 1286, 1287 (11th Cir. 2008) (quoting United

States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003)).

III. ANALYSIS

A. Scope of Appeal

Before reaching the merits of this case, we must address a

procedural issue. The report and recommendation, which the dis-

trict court adopted, states that “[t]rial counsel’s decisions, particu-

larly about whether to call certain witnesses and introduce docu-

ments, are entitled to great deference, and there is a presumption

that trial counsel’s decisions are reasonable.” However, Miller ar-

gues that Malone’s decisions should not be entitled to deference

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23-10182 Opinion of the Court 19

because they were based on an inadequate investigation and were

thus not informed, strategic decisions. Thus, according to Miller,

our inquiry must include an analysis of whether Malone’s investi-

gation “was itself reasonable.” That is, even though the COA spec-

ifies that the only issue on appeal is whether Malone “was ineffec-

tive for failing to call any witnesses at trial other than [Miller] her-

self,” Miller argues that the Court should address a subsidiary claim

that Malone failed to conduct an adequate investigation of poten-

tial witnesses and documents. The government agrees that ad-

dressing the issue on appeal necessarily encompasses the subsidiary

claim of whether Malone conducted an adequate investigation of

other potential witnesses. However, to the extent that Miller ar-

gues that Malone failed to properly review the government’s dis-

covery and investigate potential documents—rather than potential

witnesses—the government contends that such arguments are be-

yond the scope of the COA and that we should not address those

issues.

Although appellate review is limited to issues specified in the

COA, Turner v. Sec’y, Dep’t of Corr., 991 F.3d 1208, 1211 n.1 (11th

Cir. 2021) (quoting Murray v. United States, 145 F.3d 1249, 1250–51

(11th Cir. 1998)), we conclude that Malone’s decision to call wit-

nesses could have been elucidated by a reasonable investigation of

the government’s discovery and documentary evidence. Thus, our

inquiry will include an analysis of whether Malone’s investigation

of the documentary evidence, as well the potential witnesses, was

reasonable to determine whether Malone’s decisions at issue are

entitled to deference.

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20 Opinion of the Court 20-11988

With this procedural matter resolved, we now turn to the

merits of Miller’s ineffective assistance claim.

B. Prejudice

To prevail on an ineffective assistance of counsel claim, a pe-

titioner must “demonstrate both that (1) ‘counsel’s performance

was deficient,’ and (2) ‘the deficient performance prejudiced the de-

fense.’” United States v. Webb, 655 F.3d 1238, 1258 (11th Cir. 2011)

(quoting Strickland, 466 U.S. at 687). “We may consider the prongs

of the Strickland test in either order, and the defendant must show

that both prongs are satisfied in order to demonstrate a Sixth

Amendment violation.” Id. This standard is necessarily a fact-in-

tensive one, requiring a court to “consider[] all the circumstances”

when evaluating counsel’s performance. Strickland, 466 U.S. at

688. If a defendant makes an insufficient showing on one of the

requisite prongs, we need not address the other prong. Id. at 697.

Determining whether there is prejudice under Strickland is a mixed

question of law and fact, making our review plenary. See, e.g.,

Brooks v. Comm’r, Ala. Dep’t of Corr., 719 F.3d 1292, 1300 (11th Cir.

2013). Underlying factual determinations, however, are subject to

clear error review. See Devine, 520 F.3d at 1287.

To establish prejudice under the second prong of Strickland,

a defendant must show “a reasonable probability that, but for coun-

sel’s unprofessional errors, the result of the proceeding would have

been different.” Id. at 694. “A reasonable probability is a probabil-

ity sufficient to undermine confidence in the outcome.” Id. In

other words, “[i]t is not enough for the defendant to show that the

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23-10182 Opinion of the Court 21

errors had some conceivable effect on the outcome of the proceed-

ing.” Id. at 693. The petitioner instead must show that counsel’s

deficient representation rendered the result of the trial unfair. See

id. at 697. The prejudice component of the Strickland standard thus

reflects “[t]he purpose of the Sixth Amendment guarantee of coun-

sel,” which is to “ensure that a defendant has the assistance neces-

sary to justify reliance on the outcome of the proceeding.” Id. at

691–92. We have recognized that, given the principles and pre-

sumptions associated with ineffective assistance claims, “the cases

in which habeas petitioners can properly prevail are few and far

between.” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir.

2000) (en banc) (omission adopted) (quoting Waters v. Thomas, 46

F.3d 1506, 1511 (11th Cir. 1995) (en banc)).

Here, we conclude that the district court did not err in de-

termining Miller did not suffer prejudice by Malone’s decision not

to call additional witnesses. The magistrate judge found that Mil-

ler’s proposed witnesses were either not credible or credible but

could not offer material testimony, meaning their testimony would

not have changed the outcome of the trial. After a review of the

record, we conclude that the magistrate judge’s factual findings

about the potential witnesses are not clearly erroneous, especially

given the substantial deference we afford to the factfinder as to

credibility determinations. We discuss each proposed witness in

turn.

First, Dr. Danziger’s testimony would have been of little

value to Miller’s defense. As we noted previously in Kallen-Zury IV,

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22 Opinion of the Court 20-11988

because Dr. Danziger analyzed only nineteen of the thousands of

patients at HP during the period in question, his conclusions were

not based on a significant sample to hold much weight at trial. See

2023 WL 164065, at *9. “Additionally, his analysis assumed the ve-

racity of the treatment forms, even though he had no corrobora-

tion for such an assumption.” Id. Dr. Danziger conceded that,

while the files were internally consistent, he could not determine

whether the files were truthful, raising the possibility that the files

were consistently falsified. Even if the jury believed Dr. Danziger’s

claim that it was unlikely that everyone had falsified their part of

the patient files in an internally consistent manner, he could not

explain the out-of-state patients, which he described as a “prob-

lem.” In addition, Dr. Danziger could not rebut the recruiters’ tes-

timony and documentary evidence about Miller’s participation in

hiring recruiters and preparing the recruiters’ false monthly re-

ports. So even if he could convince the jury that the recruited pa-

tients were properly admitted, he would not have been able to re-

fute the evidence that HP was not permitted to pay recruiters to

bring patients but did so anyway. Being unable to address that as-

pect of the criminal scheme and Miller’s participation in that

scheme, there is no reasonable probability that Dr. Danziger’s tes-

timony would have led to a different outcome here.

Next, Smith was not responsible for billing and marketing

and did not know if the recruiters were paid to recruit patients. She

testified that she did not attend any meetings that Miller had with

Moore, Humes, or Himmons. Therefore, like Dr. Danziger, she

would have not refuted Miller’s involvement in the recruiting

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23-10182 Opinion of the Court 23

scheme. She would have merely testified that she did not know of

any fraud at HP. Her lack of knowledge, however, would not have

overturned the verdict. Indeed, it is unsurprising that those partic-

ipating in a fraudulent scheme would not inform all of their em-

ployees of the fraud. Thus, the jury could have reasonably con-

cluded that Miller and her co-defendants took affirmative steps to

keep knowledge of the fraud from Smith and other non-participat-

ing employees.

Similarly, Sordellini’s potential testimony that the patients

were properly admitted would not have overturned the verdict. As

a part-time employee at HP, Sordellini conceded that she was not

responsible for discharge, insurance, or marketing decisions at HP,

and she was unaware if HP hired “marketers” to recruit patients.

And Sordellini conceded that she was not present at any meetings

with Miller and the recruiters. It is therefore unlikely that the jury

would have rejected the government’s evidence of fraud and Mil-

ler’s participation in the fraud based on a part-time employee’s tes-

timony that she was unaware of the scheme. Instead, it is more

likely that the jury would have concluded that, as a part-time em-

ployee, Sordellini was simply not privy to the criminal scheme.

Thus, like Dr. Danziger and Smith, she would not have refuted the

government’s evidence of Miller’s involvement.

As for Hunter, we already concluded in Kallen-Zury IV, that

his testimony would not have impacted the outcome of the trial

with respect to Kallen-Zury. See 2023 WL 164065, at *8. The same

conclusion applies to the outcome of the trial with respect to

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24 Opinion of the Court 20-11988

Miller. Hunter conceded that he was unaware if Miller instructed

Dr. Gumer to falsify records to ensure that patient files reflected

severe symptoms. Similar to the previous witnesses, the fact that

he was unaware does not mean that the jury would have rejected

the government witnesses’ testimonies. Being unaware of the

fraud does not establish that the alleged conduct did not happen; it

merely suggests that Hunter did not know whether the conduct

happened. Furthermore, similar to the magistrate judge in Kallen-

Jury IV, 2023 WL 164065, at *8, the magistrate judge here did not

find Hunter’s testimony to be credible. We agree that Hunter’s

claim that he would have testified at Miller’s trial is not credible be-

cause he invoked his Fifth Amendment rights before the grand jury.

In sum, Hunter lacked credibility and was not privy to the criminal

scheme to have made a difference in Miller’s trial.

As for Llano and Dr. Piercey, because they never worked at

HP, they too could not credibly testify about the fraud at HP. To

the extent that they could have undercut the government’s theory

that Miller engaged in criminal conduct to keep her job by testify-

ing that she had other job prospects, their testimony about her mo-

tive, or the lack thereof, would not have overwhelmed other docu-

mentary and testimonial evidence of her criminal conduct. The

government presented significant evidence over the five-week trial,

and Llano and Dr. Piercey’s ancillary arguments related to motive

would have been insignificant in comparison. Thus, even if their

testimonies were admitted, it is unlikely that they would have made

a difference.

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23-10182 Opinion of the Court 25

The affiants, Calabria, Novak, Rindom, and Bryan, would

not have made a difference either. Even if the affiants testified that

they were unaware of the criminal scheme, that does not exclude

the possibility that Miller asked other employees to participate in

the scheme without the affiants’ knowledge. In addition, Novak

and Bryan would have merely provided character evidence that

Miller was honest, which would not have overturned the outcome

of the trial.

In sum, the testimony from these witnesses—taken together

or separately—would not have created a reasonable probability

that Miller’s trial would have resulted in a different outcome. See

Devine, 520 F.3d at 1287. None of the potential witnesses could re-

but the government’s evidence that Miller participated in a kick-

back scheme with the recruiters because they were not privy to the

pertinent conversations between Miller and the recruiters. Thus,

and considering the weight of the evidence presented against Miller

during the five-week trial, we conclude that Miller cannot show

that she was prejudiced by Malone’s failure to call these witnesses

at trial and cannot satisfy the second Strickland prong.

C. Deficient Performance

Because Miller has failed to show that she was prejudiced by

counsel’s failure to call witnesses at trial, we need not consider the

first prong of Strickland. However, even if we were to assume that

Miller were prejudiced and met the second Strickland prong, Miller

still cannot prevail because Malone’s decision not to call additional

witnesses did not amount to deficient performance.

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26 Opinion of the Court 20-11988

“The standard for counsel’s performance is ‘reasonableness

under prevailing professional norms.’” Chandler, 218 F.3d at 1313

(quoting Strickland, 466 U.S. at 688). There is a strong presumption

that counsel rendered reasonable professional assistance and thus

Miller has the burden to overcome this presumption. See Dingle v.

Sec’y for Dep’t of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007). We

generally afford great deference to counsel’s strategic decision not

to call witnesses. Conklin v. Schofield, 366 F.3d 1191, 1204 (11th Cir.

2004); Chandler, 218 F.3d at 1313. Further, “[o]ur strong reluctance

to second guess strategic decisions is even greater where those de-

cisions were made by experienced criminal defense counsel.”

Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998). And

“[e]ven if counsel’s decision appears to have been unwise in retro-

spect, the decision will be held to have been ineffective assistance

only if it was ‘so patently unreasonable that no competent attorney

would have chosen it.’” Dingle, 480 F.3d at 1099 (quoting Adams v.

Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983)).

As noted above, we must first determine whether Malone’s

investigation was adequate before giving great deference to his de-

cision not to call witnesses. See Wiggins, 539 U.S. at 521–23. Turn-

ing to Malone’s investigative efforts, the magistrate judge found

that Malone, an experienced criminal defense attorney, spent about

1,200 hours defending Miller.

Although Malone did not speak to Dr. Danziger until after

Miller’s trial began, Malone testified that he knew what Dr. Dan-

ziger would have discussed at trial beyond “best practices,”

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23-10182 Opinion of the Court 27

indicating that he was sufficiently apprised of Dr. Danziger’s testi-

mony through the work of the joint defense team. Malone’s deci-

sion not to have another medical expert review additional files re-

flected Malone’s reasonable investigation of the documents and

Malone’s understanding that a second medical expert would not

have been able to rebut any allegations about Miller’s supervision

of the recruiters from the patient files, thereby making any addi-

tional investigation into patient files unnecessary and unproductive

in defending Miller. And as for the remaining witnesses who testi-

fied that Malone did not contact them or only made a brief call, we

have explained that counsel “need not interview every conceivable

witness” to satisfy Strickland. Morrow v. Warden, 886 F.3d 1138, 1148

(11th Cir. 2018); see also Chandler, 218 F.3d at 1317 (“[N]o absolute

duty exists to investigate particular facts or a certain line of de-

fense.”). Malone realized that none of those witnesses could rebut

the critical evidence about the recruiters based on the detailed list

of witnesses that Miller provided Malone. Finally, with regard to

Hunter, he was represented by counsel, and Malone cannot be

faulted for not contacting him directly or his counsel given that

Malone does not have to pursue all leads, especially not a witness

who had previously invoked his Fifth Amendment rights. Cf. Davis

v. Laffler, 658 F.3d 525, 537 (6th Cir. 2011) (en banc) (concluding that

counsel’s decision not to call a witness was a strategic choice based

in part on the concern that witness “would exercise his Fifth

Amendment right to remain silent if called”).

Even if it is otherwise unclear how Malone spent the 1,200

hours, whether he effectively used that time reviewing documents

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28 Opinion of the Court 20-11988

and interviewing additional witnesses, and why he did not discover

that the government did not have certain patient files during that

time, Malone’s inability to recollect the specifics of his investigation

six-and-a-half years after the fact is not a sufficient ground to con-

clude that his investigation was inadequate. Blankenship v. Hall, 542

F.3d 1253, 1274 (11th Cir. 2008) (“[W]hen the evidence is unclear

or counsel cannot recall specifics about his actions due to the pas-

sage of time and faded memory, we presume counsel performed

reasonably and exercised reasonable professional judgment.”); Har-

vey v. Warden, Union Corr. Inst., 629 F.3d 1228, 1245 (11th Cir. 2011)

(similar). As we stated previously, attorneys are entitled to the pre-

sumption that their conduct was reasonable, and “[a]n ambiguous

or silent record is not sufficient to disprove the strong and contin-

uing presumption.” Chandler, 218 F.3d at 1314 n.15.

We thus conclude that Malone sufficiently investigated the

witnesses and documents. Thus, his decision not to call additional

witnesses was a strategic choice made after an adequate investiga-

tion, which makes his decision “virtually unchallengeable.” Strick-

land, 466 U.S. at 690; accord Conklin, 366 F.3d at 1204 (“Which wit-

nesses, if any, to call, and when to call them, is the epitome of a

strategic decision, and it is one that we will seldom, if ever, second

guess.” (quoting Waters, 46 F.3d at 1511)).

With this deferential standard in mind, we turn to whether

Malone’s explanations for not calling witnesses were reasonable.

Malone, an experienced criminal defense attorney, testified that he

did not call Dr. Danziger because Dr. Danziger would have faced

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23-10182 Opinion of the Court 29

damaging cross-examination. Dr. Danziger reviewed only a few

patient files and assumed the veracity of the patient files, which

would have been revealed through cross-examination. And, as

stated before, the government’s theory was not that Miller was

only involved in the patient side of HP. The government’s theory

was that Miller directed recruiters, which goes beyond patient care,

and Dr. Danziger would not have been able to credibly testify about

this allegation based on his limited review of patient files. In addi-

tion, Dr. Danziger would not have been able to provide a satisfac-

tory explanation for out-of-state patients coming to HP, but for the

work of Miller’s recruiters. Thus, Malone’s decision not to call Dr.

Danziger was reasonable.

As for Malone’s decision not to call other witnesses, all of

the potential witnesses would have similarly been unable to refute

critical aspects of the government’s case and, as a result, would

have been subject to damaging cross-examination. See Chandler,

218 F.3d at 1321 (“[A] lawyer reasonably could also fear that char-

acter evidence might, in fact, be counterproductive: it might pro-

voke harmful cross-examination and rebuttal witnesses. Misgiv-

ings about hurtful cross-examination and rebuttal witnesses have

been decisive to the Supreme Court when it determined that coun-

sel was effective.” (footnote omitted)). Thus, we conclude that

Malone’s decision not to call additional witnesses was reasonable,

and that Miller has not adequately demonstrated that Malone was

deficient in his representation.

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30 Opinion of the Court 20-11988

IV. CONCLUSION

For all these reasons, we affirm the district court’s denial of

Miller’s § 2255 motion to vacate her conviction.

AFFIRMED.