Petition for Writ of Certiorari — Spurgeon Green, Jr., Petitioner v. United States

Supreme Court briefApr 18, 2018

Ask Donna

What actually matters in this document.

Text

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 17-10211-J

SPURGEONGREEN, JR.,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court

for the Middle District of Georgia

Before: TJOFLAT and MARCUS, Circuit Judges.

BY THE COURT:

Spurgeon Green has filed pro se a motion for reconsideration, pursuant to 11th Cir.

R. 22-1(c) and 27-2, of this Court's November 29, 2017, order denying his motion for a

certificate of appealability. Upon review, Green's motion for reconsideration is DENIED

because he has offered no new evidence or arguments of merit to warrant relief.

Fed.R.App.P. 40(a)(2).

See

FILED

EN THE UNITED STATES COURT OF APPEALS

U.S. COURT OF A".ALS

ELEVENTH C:C:LhT

FOR THE ELEVENTH CIRCUIT

NOV 29 2:'

No. 17-102114

David J. STth

Clerk

SPURGEON GREEN, JR.,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court

for the Middle District of Georgia

ORDER:

To merit a certificate of appealability, appellant must show that reasonable jurists would

find debatable both (I) the merits of an underlying claim, and (2) the procedural issues that he

seeks to raise. See 28 U.S.C. § 2253(cX2); Slack v. McDaniel, 529 U.S. 473, 478 (2000).

Because appellant has failed to satisfy the first prong of Slack's test, the motion for a certificate

of appealability is DENIED.

Is! Stanley Marcus

UNITED STATES CIRCUIT JUDGE

Case 5:07-cr-00002-CAR-CHW Document 489 Fi!ecl 10/18/16 Page 1 of 2

THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

SPURGEON GREEN, JR.,

Petitioner,

No. 5:07-cr-2 (CAR)

No. 5:14-cv-439 (CAR)

UNITED STATES OF AMERICA,

Proceedings under 28 U.S.C. § 2255

Respondent.

ORDER ON RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court is the United States Magistrate Judge's Recommendation [Doc.

482] to deny Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28

U.S.C. § 2255 [Doc. 4591. Petitioner has filed two Objections to the Recommendation

[Docs. 486 & 488] wherein he restates his original arguments and contentions which

have been thoroughly and completely addressed in the Recommendation. This Court

has fully considered the record in this case and made a de novo determination of the

portions of the Recommendation to which Petitioner objects. Having done so, the

Court finds the Objections to be without merit. Accordingly, the Magistrate Judge's

Recommendation [Doc. 482] is HEREBY ADOPTED AND MADE THE ORDER OF

THE COURT. Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to.

EXHIBIT C, p.l of 2

2 of 2

Case 5:07-cr-00002-CAR-CHVV Document 489 Filed 10/18/16 Page

s to Expand

28 U.S.C. § 2255 [Doc. 4591 is DENIED, Petitioner's First and Fourth MOtion

the Record [Docs. 471 &z 477] are GRANTED, Petitioner's Second and Third

Motions to

s to Compel

Expand the Record [Docs, 472 & 474] are DENIED, and Petitioner's Motion

[.Doc. 466, 467, & 468] are DENIED. Additionally, because Petitioner has failed

to make

ate of appealability

a substantial showing of the denial of a constitutional right, a certific

is DENIED.

It is SO ORDERED this 18th day of October, 2016.

S/ C. Ashley Royal

C. ASHLEY ROYAL, JUDGE

UNITED STATES DISTRICT COURT

EXHIBIT C, p.2 of 2

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 1 of 69

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

SPURGEON GREEN, JR.,

Petitioner,

NO. 5:07-CR-00002 (CAR)

NO. 5:14-CV-00439 (CAR)

UNITED STATES OF AMERICA,

Respondent.

Proceedings under 28 U.S.C. § 2255

Before the U.S. Magistrate Judge

REPORT & RECOMMENDATION

Currently pending before the Court is Petitioner Spurgeon Green's Motion to Vacate, Set

Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 459), accompanied by three

Motions to Compel (Docs. 466, 467, 468), and four Motions to Expand the Record (Does. 471,

472, 474, 477). For the reasons set out below, it is recommended that Petitioner's Motion to

Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doe. 459) be DENIED.

Additionally, it is ORDERED that Petitioner's Motions to Compel (Does. 466, 467, and 468) be

DENIED, and it is RECOMMENDED that Petitioner's First and Fourth Motions to Expand the

Reocrd (Does. 471, 477) be GRANTED, and that his Second and Third Motions (Does. 472,

474) be DENIED.

Petitioner's case has a long and complex history. Following a trial that lasted more than

six weeks, culminating in over 4000 pages of trial transcript, Petitioner was convicted on 42 of

85 counts from an 89-count indictment. Count 1 of the indictment alleged that Petitioner, a

physician, conspired with two codefendants to distribute and dispense controlled substances such

as oxycodone and hydrocodone to patients, "not for a legitimate medical purpose and outside the

Case 5:07-cr-00002 -CAR -CHW Document 482 Filed 02/26/16 Page 2 of 69

usual course of professional practice." Doc. 141, p. 5. Counts 2 through 14 of the indictment

alleged that death or serious bodily injury resulted from the use of the substances distributed or

dispensed to 13 named patients. Counts 15 through 47 alleged specific instances of distribution

of Schedule II substances, primarily oxycodone. Counts 48 through 51 alleged specific instances

of distribution of hydrocodone, a Schedule III drug. Counts 52 through 83 alleged distribution of

Schedule II substances, primarily oxycodone, by using pre-signed prescriptions provided to

patients by co-defendant Mack, a physician's assistant. Count 87 alleged maintaining a location

for the purpose of distributing controlled substances "not for a legitimate purpose and outside the

normal course of professional practice." Doe. 141, p. 23. Count 89 was a criminal forfeiture

count.'

Petitioner was represented at trial by retained counsel, 0. Hale Almand, Jr. As the Court

has previously observed, Petitioner's trial counsel vigorously challenged the government's

evidence through "effective cross-examinations of the Government's witnesses and several days

of testimony by defense witnesses." Doe. 432, p. 2. Petitioner himself testified for nearly two

days. The jury deliberated for seven days. Petitioner was convicted on the conspiracy count, but

was acquitted of 37 of the substantive counts of distribution or dispensing controlled substances,

including 12 of the 13 counts involving death or serious bodily injury. Of the death or serious

bodily injury counts, Petitioner was convicted only on count 12, involving the death of Evon

Harper. The jury failed to reach a verdict as to counts 3 and 87. The defendants waived jury trial as

to the forfeiture claims in count 89, and the parties later entered into a stipulated settlement of the

forfeiture claims. Doe. 281.

'Counts 84, 85, 86, and 88 applied only to co-defendant Joseph.

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 3 of 69

The jury returned its verdict on November 6, 2008. Petitioner was sentenced nine months

later, on August 5, 2009. Between conviction and sentencing, Petitioner filed a number of post-trial

motions and retained a series of attorneys. Six days after the trial, Petitioner's trial counsel filed a

motion for judgment of acquittal. Doc. 260. In February 2009, Petitioner filed a copy of a letter

terminating the services of his trial counsel Doc. 283), along with apro se motion to dismiss the

indictment based on speedy trial violations. Doc. 284. Petitioner also filed a pro se "Motion for

Immediate Release" (Doe. 290) and motion for judgment of acquittal. Doc. 333. At a status

conference on May 13, 2009, the Court granted trial counsel's motion to withdraw. Doc. 340. The

Court then appointed attorney John Francisco to represent Petitioner. Doc. 348. Petitioner also

moved to terminate Francisco, but his motion was denied. Doc. 365. Petitioner appeared with new

retained counsel, Stephen Scarborough, for a sentencing hearing on June 25, 2009. Doc. 370. The

Court continued the sentencing until August 5, 2009, to allow counsel to prepare. Doc. 369. On

August 5, 2009, Petitioner was sentenced to serve a term of 360 months incarceration. Doe. 375.

Petitioner filed a timely notice of appeal on five grounds, challenging jury instructions,

admissibility of evidence, Fourth Amendment violations, Petitioner's conviction, and his

sentencing. See U.S. v. Joseph, 709 F.3d 1082 (11th Cir. 2013). Petitioner initially retained

Scarborough as appellate counsel, but later retained Laura Hogue, after Scarborough withdrew,

apparently based on health concerns. The Court of Appeals for the Eleventh Circuit affirmed the

conviction and sentence in an opinion dated February 21, 2013. Doc. 440. Petitioner filed his

timely Section 2255 motion on December 18, 2014. Doc. 459.

Due to Petitioner's lengthy case history and numerous motions, this Recommendation is

organized as follows: Part I details the factual and procedural background of Petitioner's case; Part

Case 5:07-cr-00002- CAR -CHW Document 482 Filed 02/26/16 Page 4 of 69

II sets out in detail Petitioner's twenty-one separate grounds for relief; Part III addresses

Petitioner's three Motions to Compel and the reasons for denying them; Part IV addresses

Petitioner's four Motions to Expand the Record; and Part V addresses Petitioner's twenty-one

grounds for relief and the reasons for denying each one.

FACTUAL BACKGROUND

The essential facts surrounding Petitioner's indictment, trial, conviction, and sentencing

were thoroughly outlined by the United States Court of Appeals for the Eleventh Circuit, as

follows:

From 1992 to 2003, [Petitioner] Green operated a medical clinic in Perry,

Georgia. Houston County police became suspicious that Green's medical clinic

was not an ordinary doctor's office after they received complaints about long lines

of people waiting outside the clinic. Police conducted surveillance of the clinic

and observed that the parking lot outside the clinic was often full of patients

waiting to see Green. Green's patients frequently arrived in groups of three or four

people and in cars with license plates that suggested they had traveled from other

counties in Georgia or from other states. Police also conducted sixty-four trash

pulls from the dumpster outside the clinic, and they conducted traffic stops of

vehicles departing the clinic to identify the occupants of those vehicles. Police

learned that many of Green's patients had their prescriptions filled at a pharmacy

that was owned and operated by Joseph.

Police executed warrants to search Green's medical clinic, his home, and a storage

unit that he maintained. The search warrants were supported by affidavits that

attested that Green had unlawfully dispensed or distributed controlled substances

and that evidence of Green's crimes would be found at his home. During the

search, police retrieved, among other evidence, medical records from Green's

clinic, about $800,000 from his home, and receipt books from his storage unit.

Green filed a motion to suppress the fruits of the search of his home on the ground

that the affidavit failed to provide probable cause that evidence of Green's crimes

would be found there, but the district court denied the motion.

A federal grand jury returned an 89—count second superseding indictment

charging Green, Joseph, and Mack with violations of the Controlled Substances

Act. The indictment charged that Green, with the assistance of Mack, prescribed

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 5 of 69

controlled substances outside the usual course of professional practice to patients

who had no legitimate medical need for those substances, and that Joseph filled

those prescriptions even though he knew that Green and Mack issued the

prescriptions without any legitimate medical need and outside the usual course of

professional practice. The indictment charged that these actions violated section

841(a)(1) of the Act, which provides that, "[e]xcept as authorized by this

subchapter, it shall be unlawful for any person knowingly or intelligently

manufacture, distribute, or dispense, or possess with intent to manufacture,

-distribute, or dispense, a controlled substance." Id. § 841(a)(1). Practitioners may

issue prescriptions for controlled substances so long as the prescriptions are

issued "for a legitimate medical purpose by an individual practitioner acting in the

usual course of his professional practice," 21 C.F.R. § 1306.04(a), and the

indictment charged that all three defendants acted without a legitimate medical

purpose and outside the usual course of professional practice. Count I of the

indictment charged Green, Mack, and Joseph with conspiring to dispense and

distribute Schedule II, III, and IV controlled substances without a legitimate

medical purpose and outside the usual course of professional practice, 21 U.S.C. §

846. Counts 2 through 86 charged some or all of the defendants with substantive

violations of the Act, id. § 841(a)(1). Counts 87 and 88 charged Green and Joseph

respectively with maintaining a place of business for the purpose of unlawfully

distributing a controlled substance, id. § 856(a)(1). And count 89 provided the

defendants notice of criminal forfeiture, id. § 853. All three defendants proceeded

to a jury trial.

...

The prosecution presented evidence at trial that Green's medical practice and his

clinic were unusual in many respects. Green saw as many as 100 patients each

day. He required that his patients pay in cash or by credit card before they met

with him, and he did not accept private insurance. Inside the clinic, patients were

sometimes rude and hysterical. Some patients could be heard retching in the

bathroom, while other patients offered the receptionists bribes to see the doctor as

soon as possible. Outside the clinic, patients sometimes camped overnight,

sleeping in cars and urinating in public.

Many of Green's former patients were addicted to prescription drugs or sold their

prescription drugs to addicts. These patients went to Green's clinic because they

knew he would give them the prescription drugs they wanted. One former patient

testified that it was "common knowledge

that you could go to [Green] and

basically write a grocery list [of] what you needed, and, you know, he would fill

it." Another former patient addicted to prescription drugs testified that her "honest

...

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 6 of 69

opinion was it was a dope house," and she testified that "people were getting sick

in the bathroom, you know. There was drug deals going on in the parking lot."

Green and Dorothy Mack, who worked as a physician's assistant at Green's clinic

from 2000 to 2003, knew that many of their patients were drug abusers. Some

patients had on their arms "track marks," which evidence drug abuse and make it

difficult for nurses to find a vein to draw blood. Green and Mack often assisted

the nurses at the clinic to draw blood from patients with track marks. Friends and

family of Green's patients sometimes called Green's clinic to report that Green's

patients were misusing their drugs and these complaints were communicated to

Green and sometimes to Mack.

Sergeant Manny Quinones, a police officer who investigated Green's clinic,

testified that police determined, during the course of their investigation, that

Green's patients included about 300 individuals who had violated drug laws in the

past. Quinones testified that officers identified these drug offenders based on

months of visual surveillance of the clinic, investigation of the license plate

numbers of Green's patients, traffic stops of vehicles leaving the clinic, and sixtyfour trash pulls conducted at the clinic. Green objected to this testimony on the

grounds that it was unduly prejudicial and that the government did not lay an

adequate foundation for the testimony, but the district court overruled the

objection and admitted the testimony.

The prosecution also presented expert testimony that Green, Mack, and Joseph

dispensed or distributed the prescription drugs without a legitimate medical

purpose and outside the usual course of professional practice. Dr. Barry Straus, an

expert in pain management and the prescription of controlled substances who was

a practicing physician in Georgia, testified, based on his review of the medical

records maintained by Green and Mack, that their medical treatment was "below

minimum standards on recordkeeping, on treatment, on diagnosis." Dr. Straus

testified that there was no legitimate medical reason to prescribe many of the

combinations of drugs that Green and Mack prescribed for their patients. Dr.

Straus also testified that, based on his review of the medical records, Green and

Mack did not conduct a thorough medical examination of their patients. Dr.

Straus testified that, if Green had conducted a thorough evaluation of each new

patient, he would not have been able to treat the large number of patients he

treated each day. Dr. Straus also testified that Green's computer medical records

suggested that records detailing physical exams of patients were fabricated. Dr.

Straus stated that, after reviewing the medical records, one has to "really bend[ ]

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 7 of 69

over backwards and just mak[e] stuff up to justify [the medical practices of Green

and Mack]."

The prosecution presented expert testimony that certain warning signs should alert

doctors and pharmacists that their patients may be abusing prescription drugs, and

the prosecution presented evidence that many of Green's patients and Joseph's

customers exhibited these warning signs. Dr. Straus testified about the warning

signs that should alert a physician that his patients are either abusing their drugs

or selling their drugs to drug abusers. Dr. Straus testified that among these

warning signs are patients who lose their medication or run out of their

medication early, patients who travel long distances to see a particular physician,

and phone calls from family and friends stating that a patient is abusing his or her

prescription drugs. Dr. John Holbrook, an expert in pharmacology and the

prescription of controlled substances, testified about the warning signs that should

alert a pharmacist that a patient is abusing or selling his drugs or that a patient's

prescription was not written for a legitimate medical purpose. Dr. Holbrook

testified that among these red flags are patients who are unduly anxious to have

their prescriptions filled, have their prescriptions filled at pharmacies located far

from their homes, and wear long-sleeved clothing during warm weather seasons

to conceal "track marks" on their arms. Dr. Holbrook also testified that a

pharmacist has ethical, moral, and legal responsibilities to ensure that he does not

fill for a single patient several prescriptions that, if taken together, pose a danger

to the health of the patient.

Green and Mack also dispensed or distributed controlled substances during the

week of September 23, 2002, when Green was out of town and Mack saw 88 of

Green's patients on his behalf. Before he left town, Green pre-signed dozens of

prescriptions for his patients, and he instructed Mack to deliver the prescriptions

to his patients if she thought it appropriate to do so. All of the 88 patients that

Mack examined during the week of September 23, 2002, were existing patients of

Green, and Mack did not examine any new patients that week. Mack delivered to

32 of those 88 patients prescriptions for controlled substances that the Drug

Enforcement Agency classified as "Schedule II" controlled substances. Schedule

II controlled substances have "a high potential for abuse," and "[a]buse of the

drug or other substances may lead to severe psychological or physical

dependence." Id. § 812(b)(2). Mack lacked authority under Georgia law to write

prescriptions for Schedule II drugs, but she had authority to write prescriptions for

Schedule III, Schedule IV, and Schedule V drugs, which have a lower potential

for abuse than Schedule II drugs.

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 8 of 69

Experts for both the prosecution and defense stated that doctors are not permitted

to pre-sign prescriptions. Dr. Straus testified that both state and federal

regulations prohibit doctors from signing prescriptions on a date other than the

date on which they deliver the prescriptions to patients. The relevant federal

regulation provides that "[a]ll prescriptions for controlled substances shall be

dated as of, and signed on, the day when issued." 21 C.F.R. § 1306.05. Dr. Straus

testified that these regulations are designed to ensure that the doctor examines the

patient before delivering the prescription and to ensure that there is a legitimate

medical reason for delivering the prescription. Dr. Straus stated that every

"legitimate doctor" and "legitimate physician's assistant" knows that he may not

pre-sign prescriptions. Dr. Straus did not review any of the patient charts of the 32

patients who received pre-signed prescriptions during the week of September 23,

2002. Dr. Frank Adams, an expert in pain management and internal medicine who

testified on behalf of the defendants, testified that there are "[n]o exceptions" to

the rule that doctors "cannot pre-sign Schedule II prescriptions." But Dr. Adams

testified that, in some circumstances, it might be acceptable "from a clinical point

of view" for a physician's assistant to give a patient a new prescription for a drug

that a medical doctor has already prescribed for that patient in the past.

Mack testified at trial and conceded that she had violated the regulation that

prohibits physicians from pre-signing prescriptions. Mack knew that she was not

allowed to write prescriptions for Schedule H controlled substances, but she

nonetheless gave some patients pre-signed prescriptions for Schedule II drugs

during the week of September 23, 2002. Mack testified that she did not know then

that prescriptions may not be pre-dated or pre-signed, although she conceded that

she should have known about that prohibition. Mack testified that she examined

all 88 of the patients she saw that week and that she tried to determine "in [her]

best judgment, whether or not [the patients] needed the medications that Dr.

Green had them on." Mack testified that she did not become suspicious that any

of those 88 patients were abusing or diverting their prescription medications until

she heard testimony to that effect at trial. Mack also testified that she often

refused to fill prescriptions for patients who showed signs of drug abuse and that,

during the week of September 23, 2002, she dismissed some patients from the

clinic because they showed signs of abusing prescription drugs.

The prosecution presented evidence contradicting Mack's testimony that she had

scrupulously considered whether her patients had a legitimate medical need for

their prescriptions. Tonya Tyson, an investigator with the Drug Enforcement

Agency, testified that the medical records from the week of September 23, 2002,

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 9 of 69

suggested that Mack had performed either no physical exam or only a cursory

exam before she prescribed patients Schedule 11 drugs. And Dr. Straus testified

that, if Mack sometimes refused to treat patients who appeared to have abused

their drugs, Mack would have been even more culpable if she had prescribed

controlled substances for other patients who showed evidence of drug abuse.

Green testified at trial and admitted that he had pre-signed the 32 prescriptions.

Green testified that he contacted the Drug Enforcement Agency by telephone to

inquire whether he could pre-sign prescriptions and that an Agency official told

him that he could pre-sign the prescriptions. Green could not recall the name of

the agent who approved the pre-signed prescriptions. Green stated that presigning a prescription is akin to writing a prescription with a "Do Not Fill Until"

date, and Green testified that he directed Mack to deliver the prescriptions to his

patients only if she determined that there were no signs that the patients were

abusing the medication.

The prosecution produced testimony that contradicted Green's statement that a

pre-signed prescription is akin to a "Do Not Fill Until" prescription. Dr. Straus

said that there is a significant difference between pre-signing prescriptions and

dispensing to a patient a "Do Not Fill Until" prescription. Dr. Straus testified that,

in 2002, it was uncertain whether it was legal for a physician to consult with a

patient and give them a "Do Not Fill Until" prescription for a Schedule TI

substance, but that "no one ever thought pre-signing and pre-dating prescriptions

was legal." Mark Caverly, the chief of the Office of Diversion Control in the

Drug Enforcement Agency, testified that pre-signed prescriptions and "Do Not

Fill Until" prescriptions are "completely separate issue[s]," and he testified that

the Agency has never permitted doctors to pre-sign and pre-date prescriptions.

Near the end of the trial, the district court instructed the jury that the prosecution

had to prove beyond a reasonable doubt that the practitioners delivered the

prescriptions without a legitimate medical purpose or outside the usual course of

professional practice. And the district court instructed the jury as follows about a

"good faith" defense under the Act:

[A] pharmacist who in good faith dispenses a controlled substance

pursuant to a proper prescription from a licensed physician for a legitimate

medical purpose in the usual course of his professional practice does not

violate the statute.

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 10 of 69

A controlled substance is prescribed by a physician in the usual course of

professional practice and, therefore, lawfully, if the substance is prescribed

by him in good faith as a part of his medical treatment for the patient in

accordance with a standard of medical practice generally recognized and

accepted in the United States.

The district court also instructed the jury that "[a] pharmacist who is registered

under the Controlled Substances Act is authorized to dispense or distribute

controlled substances pursuant to the legitimate prescription of a registered

physician." Green objected that the district court should have adopted his

proposed instruction that, "[i]f a doctor dispenses drugs based on a good faith

belief he is medically treating a patient, then the doctor has dispensed the drug for

a legitimate medical purpose in the usual course of medical practice; that is, he

has dispensed the drug lawfully," but the district court overruled this objection.

The Act provides for an enhanced prison sentence of 20 years of imprisonment to

life imprisonment if "death or serious bodily injury results from the use of" an

unlawfully dispensed or distributed Schedule 11 controlled substance, 21 U.S.C. §

841(b)(1)(C), and the indictment charged some or all of the defendants with 13

counts of causing death or serious bodily injury. The district court instructed the

jury that the delivery of the controlled substance must be a "but for" cause of the

victim's death or serious bodily injury. The district court did not instruct the jury

that the Act requires that the prosecution prove that the delivery of the controlled

substance was also a proximate cause of the victim's death or serious bodily

injury.

The jury found Green guilty as to the conspiracy count and 45 substantive counts

of violating section 841 (a)(1). Among these substantive counts, the jury convicted

Green of count 12, which charged that Green unlawfully dispensed or distributed

a Schedule II controlled substance, causing death or serious bodily injury to the

patient, and of counts 52 through 83, which charged that Green unlawfully

dispensed or distributed Schedule II controlled substances, without a legitimate

medical purpose and outside the usual course of professional practice, by presigning prescriptions that were delivered to patients during the week of September

23, 2002. The jury convicted Mack of counts 52 through 83, which charged that

Mack unlawfully dispensed or distributed Schedule II controlled substances,

without a legitimate medical purpose and outside the usual course of professional

practice, by issuing pre-signed prescriptions to patients during the week of

September 23, 2002. The jury convicted Joseph only of the conspiracy count.

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 11 of 69

The district court sentenced Green to 30 years in prison, Mack to 41 months in

prison, and Joseph to 84 months in prison. Green's presentence investigation

report calculated his guideline range as 30 years of imprisonment to life

imprisonment, and at Green's sentencing hearing, the district court adopted that

guideline range. Green requested a downward variance to the mandatory

minimum sentence of 20 years of imprisonment. The district court rejected

Green's request and imposed a prison sentence of 30 years of imprisonment.

United States v. Joseph, 709 F.3d 1082, 1088-1093 (11th Cir. 2013). This statement of facts is a

thorough and accurate summary of the evidence in the record.

Petitioner timely filed a Motion for Judgment of Acquittal or for New Trial. Doc. 260.

Petitioner argued three grounds for his Motion. First, he argued for a judgment of acquittal

because the evidence was insufficient to support a conviction, or in the alternative that he was

entitled to a new trial because the weight of the evidence preponderated heavily against the

verdict. Second, he argued that he should have a new trial because the Court did not give a

requested jury charge on good faith. Third, he argued that the Court improperly excluded an expert

witness who would have testified regarding flaws in Green's computer record system. See Doc.

260. The district court denied Petitioner's Motion on May 17, 2010, finding no grounds for a

new trial. Doc. 432.

Petitioner, with new counsel, filed a direct appeal from his conviction and sentence to the

United States Court of Appeals for the Eleventh Circuit. Doc. 383. The Eleventh Circuit distilled

the main issue as "involv[ing] a jury instruction about proving a violation of the Controlled

Substances Act, 21 U.S.C. § 801 et seq., by medical professionals." Joseph, 709 F.3d at 1087.

Appellants also challenged "the sufficiency of the evidence, the admission of testimony by a

police investigator, a search warrant of [Petitioner]'s home, and the reasonableness of

[Petitioner]'s sentence." Joseph, 709 F.3d at 1087-88. The Eleventh Circuit affirmed Petitioner's

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 12 of 69

sentence and conviction on February 21, 2013. Doc. 440; see also Joseph, 709 F.3d 1082, 108788. Petitioner petitioned the Eleventh Circuit for rehearing, and that petition was denied on April

26, 2013. The Supreme Court of the United States denied Petitioner's petition for writ of

certiorari on February 24, 2014.

On December 18, 2014, Petitioner filed the instant 28 U.S.C. § 2255 motion to vacate.

Doc. 459.

II.

PETITIONER'S GROUNDS FOR RELIEF

In his Petition, Petitioner raises twenty-one separate grounds for relief. See Doc. 459.

Trial Counsel rendered ineffective assistance when he failed to give Evon

Harper's medical records from Green's medical facilities to Green's medical

expert for testimony at trial. Doc. 459, p. 3.

Trial Counsel rendered ineffective assistance because he "labored under an actual

conflict of interest." Doc. 459, p. 4.

Trial Counsel rendered ineffective assistance by failing to call Petitioner's

medical expert witness, Thomas Sachy, M.D., to testify on Petitioner's behalf at

trial. Doc. 459, p. 7.

Trial Counsel rendered ineffective assistance by failing to challenge the "judge's

bias/misconduct at trial." Doc. 459, p. 8.

Trial Counsel rendered ineffective assistance by failing to challenge "the trial

judge's decision not to allow [Petitioner]'s computer-expert-witness to testify at

trial." Doc. 459, p. 10.

Trial Counsel rendered ineffective assistance because trial counsel and the

prosecutor "were privy to exculpatory evidence that would have impeached the

Medical Examiner, Melissa Sims, M.D., who was the prosecution witness." Doc.

459,p. 11.

Trial Counsel rendered ineffective assistance by not challenging "the prosecutionwitness who alleged to be an IRS tax-agent who testified before the jury that

[Petitioner] had IRS tax problems when [Petitioner] did not." Doc. 459, p. 12.

Trial Counsel rendered ineffective assistance when he "failed to challenge the

prosecutor's use of false computer-data that was authenticated to be [Petitioner]'s

patients-medical-files used in [Petitioner]'s medical practice." Doc. 459, p. 13.

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 13 of 69

Trial Counsel rendered ineffective assistance when he "failed to present at trial

material exculpatory evidence to show that [Petitioner] did not violate any Federal

or state law nor any DEA policy or agency rules that had been published in the

Federal Register when [Petitioner] left signed and dated prescriptions to the

patient only if there were a legitimate medical purpose based upon her physical

and medical examination of that patient on the date that the prescription was

signed and dated." Doc. 459, p. 14.

Trial Counsel rendered ineffective assistance when he —fa-iled to present

exculpatory evidence at trial to challenge the prosecutor's misrepresentation—

'but for'—that narcotic medication prescribed by [Petitioner] on September 27,

2002 contributed to Evon Harper's death caused by acute respiratory distress

syndrome (ARDS) and severe respiratory syndrome (SARS) caused by

Pneumococcal pneumonia." Doc. 459, p. 15.

Trial Counsel rendered ineffective assistance when he "failed to introduce and

submit material exculpatory evidence at trial that would have impeached the

testimony of the Sheriff Deputy whose testimony was that [Petitioner] treated

over 300 known drug addicts." Doc. 459, p. 16.

Trial Counsel rendered ineffective assistance when he "failed to challenge

prosecutorial misconduct that resulted in a miscarriage of justice contributing to a

conviction that had no legal basis because of the prosecutor's adoption of a

misleading position alleging that so-called predating prescriptions was a violation

of federal law when there was no such law, nor were there DEA-agency rules that

had been published in the federal register." Doc. 459, p. 17.

Trial Counsel rendered ineffective assistance when he "operated under a conflict

of interest and failed fiduciary-duty to his client—[Petitioner]—because [trial

counsel] was privy to the facts that the computer-medical-records-files presented

in testimony at trial were misrepresented as being authentic when they were in

fact test-records from [Petitioner]'s laptop computer that was used for computer

programming." Doc. 459, p. 18.

Appellate Counsel rendered ineffective assistance when she "failed to raise on

appeal the district-court judge's decision to violate [Petitioner]'s Sixth

Amendment rights to have witnesses to testify in his favor." Doc. 459, p. 19.

Trial Counsel rendered ineffective assistance of counsel when he "failed to

challenge prosecutorial misconduct manifested by the presentation of selected

pages copied from patients' medical records and presented piece-meal--out of

context—on a projection screen before the jury." Doc. 459, p. 20.

Trial Counsel rendered ineffective assistance of counsel when he "failed to

challenge the prosecutor's prejudicial statements, prejudicial body language,

perjured testimony and inaccurate/false exhibits that case a negative

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 14 of 69

characterization and description of [Petitioner] in the presence of the jury." Doc.

459, p. 21.

Appellate Counsel rendered ineffective assistance when she "failed to raise on

appeal the absence of defense counsel during the morning session of the trial

when Attorney 0. Hale Almand—defense counsel—was discovered unconscious

after having fallen face-down onto the table while the prosecutor was examining a

witness on the Witness Stand during the morning session of the trial." Doe. 459,

p. 22.

Trial Counsel rendered ineffective assistance when he "failed to challenge the

indictment as multiplicitous." Doe. 459, p. 23.

Appellate Counsel rendered ineffective assistance when she "failed to raise on

appeal the citing of multiplicitous charges to the jury for the same offense." Doe.

459, p. 24.

Appellate Counsel rendered ineffective assistance when she "failed to raise on

appeal the district-court's violation of [Petitioner]'s Fifth Amendment rights when

the district-court did not merge for sentencing the multiple counts of controlled

substance—sell distribute or dispense—that was based upon an alleged single

criminal episode that allegedly took place on September 27, 2002." Doe. 459, p.

25.

Trial Counsel rendered ineffective assistance when he "failed to raise before trial

the violation of [Petitioner]'s Sixth Amendment rights to a speedy trial and his

failure caused harm to [Petitioner]." Doe. 459, p. 26.

In.

PETITIONER'S MOTIONS TO COMPEL

Of preliminary concern in this recommendation are Petitioner's Motions to Compel.

Does. 466, 467, and 468. For the following reasons, it is ORDERED that Petitioner's Motions to

Compel be DENIED.

Petitioner moves "pursuant to Fed. R. Civ. P. 45; Local Rule 5.413; and Fed. R. Civ. P. 6"

to compel various documents from various parties. Although federal habeas petitions are

technically categorized as civil actions, "[a] habeas petitioner, unlike the usual civil litigant in

federal court, is not entitled to discovery as a matter of ordinary course." Bracy v. Gramley, 520

U.S. 899, 904 (1997). Habeas petitions seek to collaterally attack judgments reached in cases

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 15 of 69

where discovery has already been conducted. As such, the Supreme Court held in Harris v.

Nelson, 394 U.S. 286, 295 (1969), that the "broad discovery provisions" of the Federal Rules of

Civil Procedure do not apply in habeas proceedings.

Despite this general prohibition against discovery, Rule 6 of the Rules Governing Section

2255 Proceedings for the. -United--States District Courts ailOws disdbery under limited

circumstances. Under Rule 6(a), a court "may, for good cause, authorize a party to conduct

discovery." To show "good cause," the requesting party "must provide [specific] reasons for the

request." Id. at 6(b). "Where specific allegations before the court show reason to believe that the

petitioner may, if the facts are fully developed, be able to demonstrate that he is

...

entitled to

relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate

inquiry." Isaacs v. Head, 300 F.3d 1232, 1248 (11th Cir. 2002) (quoting Bracy, at 908-09).

In his first Motion to Compel, Petitioner makes the following requests from the County

Commissioners of Bibb County:

Copies of all contractor/employment agreements that Bibb County, State of

Georgia and its agencies, agents and any subsidiaries entered into with 0.

Hale Almand;

Copies of all 1099 Internal Revenue Forms that Bibb County and its agencies,

agents and any subsidiaries issued to 0. Hale Almand;

Copies of all cancelled checks made payable to 0. Hale Almand from Bibb

County, State of Georgia and its agencies, agents, and subsidiaries;

Copies of all medical records and treatment records for Evon Harper at the

Medical Center of Central Georgia;

Copies of all outpatient medical and treatment records for Evon Harper at the

Medical Center of Central Georgia;

Copies of all inpatient medical and treatment records for Evon Harper at the

Medical Center of Central Georgia; and

Copies of all medical and treatment records for Evon Harper at the Pain

Clinic.

Case 5:07-cr-00002 -CAR -CHW Document 482 Filed 02/26/16 Page 16 of 69

Doc. 466, p. 1. In support of these requests, Petitioner argues that this "material—exculpatory—

evidence" would be obtained to support Grounds One, Two, Three, Six, and Ten. Doc. 466, p. 2.

As more fully explained below, Petitioner's Grounds are without merit and there is no reason to

believe Petitioner could demonstrate he is entitled to relief if these records were obtained. More

specifically, the two requests addressing trial counsel's alleged conflict are simply requests for

documents Petitioner thinks will support his speculative allegations against his trial counsel.

Petitioner offers no specific instances of conflict related to Mr. Almand's representation of

Petitioner, and the requests Petitioner makes are not specific enough to show the Court that a

conflict existed.

Petitioner's requests for the medical records of Evon Harper do not provide a reason for

the Court to believe Petitioner could demonstrate he is entitled to relief if these records were

obtained. The medical records of Evon Harper were stipulated to at trial. Doc. 202, p. 4; Doc.

395, p. 74. Further, there was testimony discussing Ms. Harper's medical records by the

prosecution's witness, and trial counsel cross-examined the witness about that testimony. As

more fully explained later in this recommendation denying Petitioner's first Ground, Petitioner's

arguments and requests regarding Evon Harper should be denied.

In his second Motion to Compel, Petitioner makes the following requests from the Peach

County Hospital:

Copies of all outpatient medical and treatment records for Evon Harper at

Peach County Hospital;

Copies of all inpatient medical and treatment records for Evon Harper at

Peach County Hospital; and

Copies of all medical and treatment records for Evon Harper at all facilities

operated by Peach County Hospital.

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 17 of 69

Doe. 467, p. 1. In support of these requests, Petitioner argues that "material—exculpatory—

evidence" would be obtained to Grounds One, Two, Three, Six, and Ten. For the same reasons

discussed above, requests for Evon Harper's medical records are not supported by specific

allegations that would give the Court reason to believe that the Petitioner may be able to

demonstrate he is entitled to relief. -Therefore, Petitioner's second Motion to Compel must be

denied.

In his third Motion to Compel, Petitioner makes the following requests from James L.

Wiggins, former law partner of Mr. Almand, who is now deceased:

Evon Harper's medical records that were in custody of 0. Hale Almand aka

0. Hale Almand PC aka Law Offices of Almand & Wiggins aka Almand &

Wiggins;

All correspondence, transcripts, memoranda, documents, reports,

electronically stored information, records, statements, audits, lists of names,

applications, diskettes, letters, expense logs and receipts, calendar and/or dairy

logs, facsimile logs, facsimiles, telephone records, call sheets, tape recordings,

video/movie recordings, notes, examinations, opinions, folders, files, books,

manuals, pamphlets, forms, drawings, charts, photographs, electronic mail and

other documents and things that refer to or relate to all legal services that 0.

Hale Almand aka 0. Hale Almand PC aka Law Offices of Almand & Wiggins

aka Almand & Wiggins provided to Spurgeon Green, Jr.

Doe. 468, p. 1. Yet again, Petitioner argues that "material—exculpatory----evidence" would be

obtained to Grounds One, Two, Three, Six, and Ten. Doe. 468, p. 1. Further, Petitioner states

these documents would prove Petitioner "is actually innocent of having violated 21 U.S.C. §

841." Doe. 468, p. 1. As stated above, requests for Evon Harper's medical records are not

supported by specific allegations that would give the Court reason to believe that the Petitioner

may be able to demonstrate he is entitled to relief. Further, Petitioner's second request is

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 18 of 69

overbroad, unduly burdensome, and not likely to lead to the discovery of relevant information,

therefore it too must be denied.

Therefore, Petitioner's three Motions to Compel (Docs. 466, 467, 468) are DENIED.

IV.

PETITIONER'S MOTIONS TO EXPAND THE RECORD

Petitioner has also filed four Motions to Expand the Record with various supporting

Memoranda of Law pursuant to Rule 7 of the Rules Governing Section 2255 Proceedings. Docs.

471, 472, 474, and 477. Petitioner has submitted various affidavits and other evidentiary

materials that were not a part of the trial or appellate record. For the reasons set forth below, it is

RECOMMENDED that Petitioner's First and Fourth Motions (Docs. 471, 477) be GRANTED

and that his Second and Third Motions (Docs. 472, 474) be DENIED. To the extent that these

motions present additional arguments concerning Petitioner's claims, those arguments have been

reviewed and considered in the preparation of this Recommendation.

Under Rule 7 of the Rules Governing Section 2255 Proceedings, "[i]f the [Section 2255]

motion is not dismissed, the judge may direct the parties to expand the record by submitting

additional materials relating to the motion." Fed. R. § 2255 P. 7(a). This Rule further provides

that the Court may require affidavits and "answers under oath to written interrogatories

propounded by the judge." Fed. R. § 2255 P. 7(b). The Supreme Court has said this language

gives courts the authority to expand "the record to include any appropriate materials that enable

the judge to dispose of some habeas petitions not dismissed on the pleadings without the time

and expense required for an evidentiary hearing." Black/edge v. Allison, 431 U.S. 63, 82 (1977)

(internal quotation marks omitted) (discussing identical language in Rule 7 of Rules Governing §

2254 Proceedings). The Court can require this evidence directly from a petitioner's former

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 19 of 69

attorney. Fed. R. § 2255 P. 7 advisory committee's note ("Revised Rule 7(a) is not intended to

restrict the court's authority to expand the record through means other than requiring the parties

themselves to provide the information."); see also Blackledge, 431 U.S. at 82 n. 25 ("[B]efore

dismissing facially adequate allegations short of an evidentiary hearing, ordinarily a district

judge should seek as a minimum to-obtain affidavits from all persons likel y- to have firsthand

knowledge" of the matter.).

Before the Court is a record with over 4000 pages of trial and sentencing transcript, as

well as 481 docket entries, including Orders on Petitioner's Motion for New Trial and the

Opinion and Mandate from the Eleventh Circuit Court of Appeals. As the existing record is

adequate to dispose of Petitioner's Habeas Petition, no expansion would be necessary.

The Motions could, instead, be construed under Rule 6 of the Rules Governing Section

2255 Proceedings, but as explained in connection with Petitioner's Motions to Compel, "[a]

habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a

matter of ordinary course." Bracy, 520 U.S. at 904. Petitioner has not shown good cause as to

why the Court should consider the documents presented in these various motions, so even under

Rule 6, Petitioner's Motions could be denied.

Petitioner's "Motions" and supporting memoranda could be liberally construed as an

additional ground that Petitioner's conviction was obtained in violation of Brady v. Maryland,

373 U.S. 83 (1963), as he cites Brady repeatedly in his accompanying memoranda. The evidence

he presents, however, does not support any claim of a Brady violation by the Government.

In Strickler v. Greene, 527 U.S. 263, 281-82 (1999), the United States Supreme Court

enunciated the three components of a true Brady violation as follows: "[1] The evidence at issue

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 20 of 69

must be favorable to the accused, either because it is exculpatory, or because it is impeaching;

that evidence must have been suppressed by the State, either willfully or inadvertently; and

prejudice must have ensued." Under the prejudice prong, the defendant must show that the

suppressed evidence is material. See id. at 282. "[E]vidence is material only if there is a

reasonable probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different. A 'reasonable probability' is a probability sufficient to

undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682 (1985). As

discussed below, the evidence that Petitioner presents all appears to have been in his custody or

his counsel's custody. Petitioner has not alleged or shown that any of the evidence presented in

his Motions to Expand the Record was suppressed by the State, nor can he show prejudice.

First Motion to Expand the Record

The record reflects that on December 22, 2014, this Court ordered Green to "amend his

petition to include every unalleged possible constitutional error or deprivation entitling him to

federal habeas corpus relief" within thirty (30) days. Doc. 461, p. 1. More than three months

later Petitioner filed his first "Motion to Expand the Record" (Doc. 471) pursuant to "Rule 7";

attaching the Affidavits of Frank Adams, MD, and Thomas H. Sachy, MD, "in support of the

supporting facts under Grounds One, Two, Three, and Six." Notably, these Motions came after

the Respondent filed its Response. However, the Motion should be granted, and the affidavit of

Dr. Adams is considered in Section V.13.1., below; the affidavit of Dr. Sachy is considered in

Section V.13.3.

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 21 of 69

Second Motion to Expand the Record

Petitioner's second Motion to Expand the Record (Doc. 472) contains eight separate

items of "evidence deemed material" to support Petitioner's first ground. None of this evidence

is relevant to the Court's decision on Petitioner's Section 2255 motion.

Appendix A contains Evon Harper's Office Treatment Records. All medical records in

this case were stipulated to at trial, and it is not necessary to review these unauthenticated

medical records now. Doc. 202, P. 4; Doc. 395, p. 74.

Exhibit B contains excerpts from Petitioner's June 28, 2006 deposition. Petitioner has not

shown that his deposition is material to the decision on his Section 2255 motion. Petitioner

testified at trial for two full days. His prior deposition was relevant and admissible only for

purposes of impeachment, and the Government used the deposition for that purpose on several

occasions. Doc. 411, pp. 42-49, 57-66, 183-184, 221-228.

Appendix C contains purported excerpts from trial counsel's type-written notes prior to

trial, in reference to Evon Harper's medical records and to Petitioner's computer system. Doc.

472-3. These notes appear to be quite detailed. In addition, the exhibit includes the autopsy report

for Evon Harper, with hand-written notes in the margins suggesting that Ms. Harper's death may

have been caused by rhabdomyolosis. Petitioner does not identify the source of the hand-written

notes. These notes and materials are of uncertain provenance and have minimal relevance to the

issues in Petitioner's present motion.

In Appendices D and E Petitioner resubmits the affidavits presented to the Court in his

first Motion for Expansion of the Record. Those affidavits have already been discussed. In

Appendices F, G, and H Petitioner submits record requests made to various individuals and

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 22 of 69

entities. Docs. 472-6; 472-7; 472-8. These are not proper discovery materials and present no

evidence to the Court other than evidence of Petitioner's efforts to obtain the medical records of

Evon Harper, which were stipulated to at trial. Therefore, Petitioner's second Motion to Expand

the Record must be denied.

Third Motion to Expand the Record

Petitioner's third Motion to Expand the Record (Doc. 474) contains ten separate items of

"evidence deemed material" to support Petitioner's Ninth, Twelfth, and Fifteenth Grounds.

Appendix A presents the Court with what appears to be an email detailing the Standards

for Physician Assistant Practice (Doc. 474-1, p. 1); a letter from the Composite State Board of

Medical Examiners to Petitioner dated February 20, 2003 discussing the state licensing

requirements for physician's assistants (Doc. 474-1, p. 2); as well as various O.C.G.A. sections

printed from LexisNexis. These documents are not relevant to Petitioner's instant motion, nor do

they support Petitioner's Ninth, Twelfth, or Fifteenth Grounds for ineffective assistance of

counsel, and will not be considered by the Court.

Appendices B and E present purported notes from trial counsel's pretrial files. As

discussed in connection with Petitioner's Second Motion to Expand the Record, these notes have

not been authenticated and cannot be considered by the Court.

Appendix C contains a sworn affidavit from Harvey A. Jones, affirming that he acted as a

covering physician for Petitioner when Petitioner was out of town. Doc. 474-3. This affidavit

supports testimony at trial that Dr. Harvey Jones was Petitioner's back-up doctor in Macon. Doc.

413, p. 124. Such evidence would be cumulative of testimony presented at trial.

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 23 of 69

Appendixes D and F contain rules from the DEA which were discussed during trial, and

selected sections of HIPPA, which are not relevant to Petitioner's motion. Appendices G, H, I,

merely present definitions of words and Appendix J presents selected Statutes and Regulations.

Therefore, Petitioner's third Motion to Expand the Record must be denied.

4...

Fourth Motion to-Expand the Record

Petitioner's Fourth Motion to Expand the Record (Doc. 477) contains two separate items

of "evidence deemed material" to support Petitioner's Third, Sixth, Eighth, Tenth, Thirteenth,

and Fifteenth Grounds.

Appendix A presents "Materials obtained via Freedom of Information Act regarding the

First Degree Felony Forgery investigation of Melissa Sims, M.D;" while Appendix B presents

the Court with Dr. Sachy's affidavit for a third time. Doc. 477. Appendix A contains a string of

emails and an unauthenticated incident report from Jones County stating that Dr. Thomas Sachy

was apparently married to Dr. Melissa Sims, and that Dr. Sims attempted to have their

daughters' legal name changed. Doe. 477-1, p. 22. Dr. Sachy requested a forgery investigation

into both the notary used to sign documents, and Dr. Sims herself. Additionally, a blurred out

and edited copy of an unidentified memo from the District Attorney's office discussing the status

of the investigation is also presented to the Court. Finally, there are a string of emails from Dr.

Sachy to the GBI regarding an Open Records Request made in 2009. The motion should be

granted, and this evidence is discussed in Section V.13.3., below.

V. PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

In his Section 2255 motion and supporting memoranda, Petitioner asserts twenty-one

numbered grounds for relief (Doe. 459) arguing that both his trial and appellate counsel were

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 24 of 69

ineffective. In grounds One through Thirteen, Fifteen through Sixteen, Eighteen, and TwentyOne, Petitioner alleges his trial counsel, 0. Hale Almand, violated his Fifth Amendment right to

due process and his Sixth Amendment right to effective assistance of counsel in various ways

throughout the trial. Doc. 459 at 1-18, 20-21, 23, and 26. In grounds Fourteen, Seventeen,

Nineteen, and Twenty, Petitioner alleges that his appellate counsel, Laura Hogue, violated his

Fifth and Sixth Amendment rights to due process and effective assistance of counsel in her

handling of his appeal. Doc. 459 at 19, 22, 24, and 25.

Because Petitioner's ineffective assistance of counsel claims are without merit, as

explained in more detail below, Petitioner's Motion to Vacate, Set Aside, or Correct Sentence

Pursuant to 28 U.S.C. § 2255 (Doc. 459) should be DENIED.

A. General Standards

Congress enacted 28 U.S.C. § 2255, authorizing convicted criminal defendants to file a

motion to correct sentences that violate federal law, with the intention that the statute serve as the

primary method of collateral attack on federally-imposed sentences. United States v. Jordan, 915

F.2d 622, 625 (11th Cir. 1990). Pursuant to § 2255, individuals sentenced by a federal court can

attack the sentence imposed by claiming one of four different grounds: "(1) that the sentence was

imposed in violation of the Constitution or laws of the United States; (2) that the court was

without jurisdiction to impose such sentence; (3) that the sentence was in excess of the maximum

authorized by law; and (4) that the sentence is otherwise subject to collateral attack." Hill v.

United States, 368 U.S. 424, 426-27 (1962) (internal quotation marks and citations omitted).

"To obtain collateral relief a prisoner must clear a significantly higher hurdle than would

exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982). The Petitioner must

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 25 of 69

establish that the facts surrounding his claim present "exceptional circumstances where the need

for the remedy afforded by the writ of habeas corpus is apparent." Bowen v. Johnston, 306 U.S.

19, 27 (1939).

An evidentiary hearing is not warranted if "the motion and the files and records of the

case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). Based on

the record before the Court, an evidentiary hearing is not required in this case as the Petitioner's

Motion claims are procedurally defaulted or meritless. See Diaz v. United States, 930 F.2d 832,

834 (11th Cir. 1991) (noting that, prisoner seeking collateral relief is entitled to evidentiary

hearing if relief is warranted by facts he alleges, but that a hearing is not required if record

conclusively demonstrates that no relief is warranted).

B. Ineffective Assistance of Counsel

As noted by Petitioner, the Sixth Amendment of the United States Constitution states that

"in all criminal prosecutions, the accused shall enjoy

...

the Assistance of Counsel for his

defense." U.S. Const. amend. VI. The right to counsel provision provides the accused the right to

effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970). To

prevail on a claim of ineffective assistance of counsel, the Petitioner bears the burden of

establishing by a preponderance of the evidence that: 1) his attorneys performance was deficient,

and 2) he was prejudiced by the inadequate performance. Strickland, 466 U.S. at 687 (1984); see

also Eagle v. Linahan, 279 F. 3d 926, 938 (11th Cir. 200 1) (applying Strickland to allegations of

ineffective assistance of appellate counsel). A petitioner must prove both prongs of the

Strickland test to show his counsel was ineffective. Id. And as the Eleventh Circuit has noted:

"the cases in which habeas petitioners can properly prevail on the ground of ineffective

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 26 of 69

assistance of counsel are few and far between." Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir.

1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)).

To establish deficient performance, a petitioner must prove that counsel's performance

was unreasonable under prevailing professional norms and that the challenged action was not

sound strategy. Chateloin v. Singletary, 89 F.3d 749, 752 (11th Cir. 1996). A strong presumption

exists that counsel's performance was reasonable and the challenged action constituted sound

trial strategy. Id. In order to establish that counsel's performance was unreasonable, a petitioner

must show that no objectively competent counsel would take the action in question. Van Poyck

v. Florida Department of Corrections, 290 F.3d 1318, 1322 (11th Cir. 2002). A court analyzing

Strickland's first prong must be "highly deferential" and must "indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable professional assistance." Strickland,

466 U.S. at 689; Atkins v. Singletary, 965 F.2d 952, 958 (11th Cir.1992) ("We also should

always presume strongly that counsel's performance was reasonable and adequate ....") (citation

omitted).

To establish prejudice, a petitioner must show that there is a reasonable probability that,

but for counsel's inadequate representation, the outcome of the proceedings would have been

different. Strickland, 466 U.S. at 697; Meeks v. Moore, 216 F.3d 951, 960 (11th Cir. 2000).

Reasonable probability is defined as a "probability sufficient to undermine confidence in the

outcome." Id. (quoting Strickland, 466 U.S. at 694). If a petitioner fails to prove that she has

suffered prejudice, the court need not address the deficient performance prong of the Strickland

test. Holiday v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 27 of 69

The Supreme Court has also addressed the difficulty of appellate advocacy: "experienced

advocates since time beyond memory have emphasized the importance of winnowing out weaker

arguments on appeal and focusing on one central issue if possible, or at most on a few key

issues." Jones v. Barnes, 463 U.S. 745, 751-52 (1985). "Most cases present only one, two, or

three significant questions.... Usually,—. iyoucannot win on a few major points, the others are

not likely to help, and to attempt to deal with a great many in the limited number of pages

allowed for briefs will mean that none may receive adequate attention." Id. at 752

For the reasons set forth below, Petitioner cannot make a showing by a preponderance of

the evidence that his counsel was ineffective in failing to raise any of the other grounds presented

in his motion.

1. Trial Counsel rendered ineffective assistance when he failed to give Evon

Harper's medical records from Green's medical facilities to Green's medical

expert for testimony at trial. Doc. 459, p. 3.

In Ground One, Petitioner alleges that trial counsel was ineffective because he failed to

give Evon Harper's medical records from Petitioner's office and from other medical facilities to

Petitioner's medical expert, Dr. Frank Adams. Petitioner argues that had Ms. Harper's medical

records been given to Petitioner's medical expert, the evidence would have been exculpatory,

proving that Ms. Harper's physical and psychological illnesses were treated by Petitioner under

the applicable standard of medical care. Doc. 459, p. 3. Because Petitioner cannot show by a

preponderance of the evidence that trial counsel's performance was deficient, or that he was

prejudiced by the inadequate performance, relief on this ground should be denied.

The jury found Petitioner guilty on Count 12 of the indictment for unlawfully,

knowingly, willfully, and intentionally distributing and dispensing, and causing to be

distributed and dispensed, Oxycodone to Evon Harper, not for a legitimate medical purpose

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 28 of 69

and outside the usual course of professional practice, in violation of 21 U.S.C. § 841. The jury

also found that serious bodily injury to Evon Harper resulted from the use of the 0xycodone2

so distributed and dispensed. Doe. 141, p. 15; Doe. 250, p. 11.

At trial, the evidence showed that Ms. Harper died on December 27, 2002, just over ten

months after her first visit to Petitioner's clinic. Doe. 404, p. 211. The medical examiner, Dr.

Melissa Sims, testified that the cause of death was lobar pneumonia and adult respiratory distress

syndrome, and that polypharmacy was a contributing factor in her death. Doe. 404, p. 181.

Harper had been admitted to the hospital for a possible drug overdose the day before she

died. Doe. 404, p. 180. The toxicology tests on Harper's body showed that Harper had

hydroeodone, oxycodone, and diazepam in her system at the time of death. Doe. 404, pp. 181182. The oxycodone and hydrocodone were still at levels considered to be above a therapeutic

range, even though she died some twenty-four hours after she was admitted to the hospital. Doe.

404, pp. 181-182. Dr. Sims explained that the drugs contributed to Harper's death because such

depressants may cause a person to lose control of her airway and aspirate stomach contents into

the lungs. Doe. 404,.p. 182. The aspirated stomach contents then lead to a bacterial infection that

causes pneumonia and respiratory distress. Doe. 404, p. 182. Dr. Sims testified that the drugs

caused serious bodily injury to Harper by causing the pneumonia that led to her death. Doe. 404,

p. 182. Trial counsel cross-examined Dr. Sims, and specifically questioned Dr. Sims about her

diagnosis of Ms. Harper, and Ms. Harper's blood levels at autopsy. Doe. 404, pp. 211-218.

Dr. Barry Straus, a pain management physician and expert witness for the Government

summarized Dr. Green's treatment of Ms. Harper:

In the facts stipulated to by the parties, it was recognized that Oxycodone has an assortment of trade names such as

"OxyContin, Roxicodone, Roxicet, OxyiR, Percocet, Percodan, Endocet, Tylox, and others." Doc. 395, p. 69.

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 29 of 69

Ms. Harper was a 43-year-old lady who Dr. Green first saw in February 2002.

She comes to him just saying she has chronic knee pain and low back pain and

that she's on OxyContin 40 milligrams, three times a day, Soma, four times a day,

Lortab 10 milligrams, three times a day, Valium 10 milligrams, three times a day,

and Vioxx. Old records are never are never sent for to make sure she really was

on any of these medicines, any workup had been done. She eventually dies of an

overdose ten months later.

Doc. 401, p. 3-4. Dr. Straus testified that Petitioner's own medical records further indicated that,

as a whole, Ms. Harper's medical records played a part in "the whole pattern of substandard care,

ignoring, not paying any attention to what was going on with the patients or trying to see if they

really needed these drugs." Doc. 401, p. 4. Further examination of Ms. Harper's medical records

showed that she received every "medication that she asked for in her initial history." Doc. 401, p.

8. Dr. Straus also noted that while Ms. Harper's chart was generally consistent with the "whole

pattern of substandard care" he observed throughout Petitioner's records, he conceded that it did

not have as many "red flags" as other charts he reviewed:

Of the 30 or 40 charts I did, this one was sort of the best of the bunch in the sense

of just

If I had seen this one just by itself, I would have said substandard, but not

really bad when seen witheverything else.

Doe. 401, p. 4.

In the defense case, Petitioner's counsel called his own medical expert, Dr. Frank Adams,

largely to respond to the testimony of Dr. Straus. Dr. Adams testified generally as to the standard

of care for administration of pain medication. He indicated that chronic pain is a serious disease

and should be treated as such, suggesting that many patients who might be considered "addicts"

were in fact under-treated and in need of additional medication to control their pain. Doe. 410, p.

29. He also explained that "the first commandment of pain management is the patient is to be

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 30 of 69

believed." Doe. 410, p. 206. Dr. Adams relayed that he was familiar with OxyContin, Lortab,

Lorcet, Percocet, Xanax, Diazepam, and Soma, and that these drugs were frequently used, either

alone in combination, as a "basic armamentarium of chronic pain treatment." Doe. 410, p. 19. He

testified that OxyContin was a comparatively safe and effective treatment for severe pain (Doe.

410, p. 20), and that required dosages for treatment could vary based on a patient's level of pain

and individual tolerance for the drug (Doe. 410, pp. 21-22). He also testified that it was

appropriate to prescribe OxyContin in combination with other drugs such as hydrocodone, Soma,

and Xanax, a combination characterized by the prosecution as an inappropriate "cocktail." Doe.

410, p. 37.

In addition to his general testimony about the standard of care, Dr. Adams also addressed

several specific patient files. Dr. Adams testified that he reviewed approximately fifteen charts,

eight of them in depth. Doe. 410, p. 12. He explained that he spent "eight to ten hours per chart

per review" on those eight charts, and reviewed the rest of them "sort of in cursory fashion,

without taking notes or submitting any kind of written response to them." Id. Dr. Adams

testified specifically about Marjorie Abernathy, Melissa Allen, David Barbari, Patricia Boyton,

Mark Bracewell, Marty Jackson, and Michael Jackson. Doe. 410, pp. 46-62, 62-74, 74-85, 8589, 89-93, 93-103, 103-110. Dr. Adams did not specifically testify about Evon Harper.

In his testimony about the specific patient files, Dr. Adams illustrated his opinions about

the standard of care for pain patients. For example, in his review of the files of Marjorie

Abernathy, Dr. Adams testified that the patient had a history of physical conditions indicative of

severe pain. Among other conditions, she claimed to suffer from arachnoiditis, which Dr. Adams

characterized as "one of the worst pains you can have, one of the most untreatable pains, one of

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 31 of 69

the most unresponsive pains to any form of medication that you can try." Doe. 410, P. 47. He

characterized the treatment prescribed by Petitioner as "minimally effective" (Doe. 410, p. 51),

noting that the patient experienced some relief, but explaining that "You can go very high on the

Oxycontin or any of the opiates with people with arachnoiditis and you will probably not achieve

any better score than Dr. Green was able to achieve with the low dose of Oxycontn he was

using." Doe. 410, p. 50. He concluded by affirming that Petitioner's treatment of Ms. Abernathy

was within the bounds of legitimate medical practice and the standard of care. Doe. 410, p. 62.

Dr. Adams also reviewed the autopsy report for Ms. Abernathy, and stated that he could

not determine with certainty whether the levels of hydrocodone and oxycodone in her blood

would have been fatal because the responses to medication were "highly dependent on each

individual patient." Doe. 410, p. 58. He explained that pathologists do not have clinical

experience with pain medication and frequently attribute death to drugs when there are no

external findings to suggest a cause of death. Doe. 410, p. 61.

Trial counsel directed Dr. Adams through a similar analysis of each of the eight specific

charts listed above. Trial counsel's direct examination was thorough and methodical, and it was

apparent that he was intimately familiar with the patient records and well-versed in the medical

issues involved. Petitioner maintains that because trial counsel did not give Evon Harper's

medical records to Dr. Adams for review, trial counsel rendered ineffective assistance of

counsel.

In his first Motion to Expand the Record (Doe. 471), Petitioner submits an affidavit from

Dr. Adams, dated August 18, 2014, in which Dr. Adams testifies that Petitioner's trial counsel,

0. Hale Almand, did not provide him with the medical records of Evon Harper. Doe. 471-1, p. 1.

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 32 of 69

Dr. Adams further states that he "could not render an expert medical opinion concerning the

medical treatment of Evon Harper during [Petitioner's] trial

...

because Attorney 0. Hale

Almand never sent me any medical records of Evon Harper." Doe. 471-1, p. 1.

Dr. Adams further states his opinion: "Spurgeon Green, Jr. met the standards of medical

care regarding all of his patient records I examined, and Evon Harper's medical records more

likely than not would have met the standard of medical care as did the others." Doe. 471, p. 1. In

the doctor's opinion, "had I been given the opportunity to examine the medical records of Evon

Harper and testified to the jury regarding them, the outcome of the trial would have been

different for the defense." Doe. 471, p. 1. This affidavit adds little to the trial record.

At trial, counsel stated that Dr. Adams reviewed only eight to ten patient files and that he

would testify about those. Doe. 407, p. 4-5. Dr. Adams testified that he reviewed approximately

fifteen charts, eight of them in depth. Doe. 410, p. 12. Dr. Adams relayed that he was familiar

with Oxycontin, Lortab, Lorcet, Percocet, Xanax, Diazepam, and Soma, and that these drugs

were frequently used, either alone in combination, as a "basic armamentarium of chronic pain

treatment." Doe. 410, p. 19. Dr. Adams testified specifically about Marjorie Abernathy, Melissa

Allen, David Barbari, Patricia Boyton, Mark Bracewell, Marty Jackson, and Michael Jackson.

Doe. 410, pp. 46-62, 62-74, 74-85, 85-89, 89-93, 93-103, 103-110. Dr. Adams did not testify

about Evon Harper.

The trial record indicates that trial counsel's strategy was within the range of reasonable

professional assistance. The primary purpose of Dr. Adams testimony was to present evidence of

a professional difference of opinion as to the standard of care for treating patients with chronic

pain. Secondarily, Dr. Adams testified as to several specific patients, both to illustrate his

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 33 of 69

opinion of the standard of care and to cast doubt on the arguments of the Government. In

addition to contesting the Government's proposed standard of care, Dr. Adams challenged the

tendency of pathologists to attribute cause of death to drugs based merely on the presence of

drugs in the system. The effect of this testimony was to cast doubt on thecause of death as to all

of the- deceased patients, including Harper.

Dr. Adams testified that he spent at least eighty hours reviewing the medical files, and it

is apparent from the record that trial counsel was well-prepared in his direct examination. Given

the amount of evidence involved, the length of the trial, and the similarity of the issues among

the patients, it was not objectively unreasonable for trial counsel to pursue a strategy of

examining selected files to illustrate disputes over the standard of care and to create reasonable

doubt about the reliability of the autopsy reports.

Petitioner himself testified at length about Evon Harper's records and the reasons for his

treatment decisions. Doc. 409, pp. 112-116. The records themselves were admitted into

evidence. The trial transcripts show that trial counsel effectively developed the trial record

regarding Ms. Harper through cross-examination of Dr. Straus, the general testimony of Dr.

Adams, and the more specific testimony of Petitioner. Petitioner has not identified any additional

evidence that his counsel should have presented. The record therefore fails to support

Petitioner's claim that his counsel rendered ineffective assistance of counsel in failing to give

Ms. Harper's records to Dr. Adams for review, or to show that Petitioner was prejudiced thereby.

2. Trial Counsel rendered ineffective assistance because he "labored under an

actual conflict of interest." Doc. 459, p. 4.

Petitioner's second ground also relates to the medical records of Evon Harper. In Ground

Two, Petitioner maintains that trial counsel, as an attorney for Bibb County, had a conflict of

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 34 of 69

interest in representing Petitioner and, because of that conflict did not give Evon Harper's

medical records to Petitioner's expert witness.

An attorney's conflict of interest may deprive a defendant of his Sixth Amendment right

to assistance of counsel. Strickland, 466 U.S. at 692; Cuyler v. Sullivan, 446 U.S. 335, 348

(1980). The existence of a conflict of interest does not automatically require reversal. Mickens v.

Taylor, 535 U.S. 162, 168 (2002). A conflict of interest will rise to the level of reversible

constitutional error only if the defendant has demonstrated that "an actual conflict of interest

adversely affected his lawyer's performance." Id. (citing Cuyler, 446 U.S. at 348-49).

Petitioner makes the conclusory allegation that "Almand was an attorney—employee—

for Bibb County, State of Georgia and defense counsel for [Petitioner]. Almand's clients—Bibb

County and Green—had conflicting interests." Doc. 459, p. 4. However, Petitioner has not

demonstrated that "an actual conflict of interest adversely affected his lawyer's performance."

Petitioner's conclusory allegations are insufficient to support a finding that counsel operated

under a conflict of interest, much less that such a conflict adversely affected his performance.

See Caderno v. United States, 256 F.3d 1213, 1218-19 (11th Cir. 200 1) (defendant must show

that counsel actually actively represented his own financial interest during trial, not just that the

possibility of an actual conflict existed). For these reasons, Petitioner's second ground must be

denied.

3. Trial Counsel rendered ineffective assistance by failing to call Petitioner's

medical expert witness, Thomas Sachy, M.D., to testify on Petitioner's behalf

at trial. Doc. 459, p. 7.

In his third ground, Petitioner contends that trial counsel should have given Evon

Harper's medical records to Dr. Thomas Sachy, who he maintains was also his medical expert.

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 35 of 69

Green broadly asserts that had Dr. Sachy testified at trial the outcome would have been different.

The record, however, does not support a finding that trial counsel's decision not to call Dr. Sachy

at trial fell below an objective standard of reasonableness or that Petitioner was prejudiced by the

decision.

The record shows that-at the end of the first day of Petitioners direct examination, the

jury was excused and the Court discussed the upcoming trial schedule with the respective

parties' counsel and the government. Doc. 408, pp. 231-239. At that time, trial counsel indicated

that in addition to calling Dr. Frank Adams, the defense had "one other [expert] who may or may

not testify depending on how things go." Doc. 408, p. 233. Trial counsel indicated that the other

expert would be Dr. Thomas Sachy from Gray, Georgia, who was a psychiatrist and also a pain

medicine specialist. Doc. 408, p. 233.

In his first Motion to Expand the Record (Doc. 472), Petitioner submits the affidavit of

Dr. Sachy. Doc. 471-2, p. 1. Dr. Sachy testifies that he "was going to testify about exculpatory

evidence which would have been used to impeach the medical examiner used by the United

States Attorney to prosecute Dr. Spurgeon Green." Doc. 471-2. He also states that he never

received Evon Harper's medical records from trial counsel. Dr. Sachy's affidavit does not state

what the substance of his testimony would have been.

Petitioner's Fourth Motion to Expand the Record (Doc. 477) gives some indication of the

nature of Dr. Sachy's proposed testimony related to the impeachment of Dr. Sims. Appendix A

to the motion presents "Materials obtained via Freedom of Information Act regarding the First

Degree Felony Forgery investigation of Melissa Sims, M.D." These materials include a string of

emails and an unauthenticated incident report from Jones County showing that Dr. Thomas

Case 5:07-cr-00002-CAR-CHW Document 482 Filed.02/26/16 Page 36 of 69

Sachy was married to Dr. Melissa Sims, and that Dr. Sims attempted to have their daughters'

legal name changed. Doc. 477-1, p. 22. Dr. Sachy requested a forgery investigation into both the

notary used to sign documents and Dr. Sims herself. Additionally, a blurred out and edited copy

of an unidentified memo from the District Attorney's office discussing the status of the

investigation is also presented to the Court. Finally, there is a string of emails from Dr. Sachy to

the GBI regarding an Open Records Request made in 2009. None of this material would have

been admissible as impeachment evidence under the Federal Rules of Evidence. Nothing in the

Federal Rules of Evidence permits impeachment of a witness by evidence of a criminal

investigation that did not result in a conviction or by the criminal accusations of an ex-husband.

See Fed. R. Evi. 609 (a).

The standard in reviewing whether counsel's conduct was deficient is "highly

deferential" and must "indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance." Strickland, 466 U.S. at 689.

Petitioner has failed to direct the Court to anything in the record that would show what

Dr. Sachy's testimony would have been, or how it would have resulted in a different outcome,

particularly after the jury heard the conflicting testimony of two other pain specialists

Adams and Dr. Straus

Dr.

as well as Petitioner's own testimony. The record indicates that Dr.

Sachy's testimony would have been irrelevant and inadmissible as to impeachment of Dr. Sims,

and cumulative of the medical opinion evidence offered by Dr. Adams. As such, the record fails

to support a finding that counsel failed to provide constitutionally adequate representation or

prejudiced Petitioner by deciding not to call Dr. Sachy. Therefore, Petitioner's third ground must

be denied.

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 37 of 69

4. Trial Counsel rendered ineffective assistance by failing to challenge the

"judge's bias/misconduct at trial." Doc. 459, p. 8.

In his fourth ground, Petitioner alleges that trial counsel was ineffective for failing to

challenge the trial court's bias or misconduct. Petitioner contends that the trial court exhibited

bias by stating, after the close of the Government's case, "There is culpability here," and by

exhibiting "body language that indicated that Green was guilty and that the prosecutor had done

a good job." Doc. 459, p 8.

The record does not support Petitioner's assertions. Review of the trial transcript from

the point at which the government concluded its evidence does not support any of Petitioner's

claims. Doc. 407, p. 220-246. After the close of evidence, the Court and counsel for both the

government and defendants attended to evidentiary issues and administrative details. Doc. 407, p.

221. The record shows that the defendants moved for judgments of acquittal, which the trial

court denied, after finding the evidence was sufficient to permit the case to go forward. Doc.

407, p. 223-246.

Petitioner's counsel moved for a judgment of acquittal as to counts 52 through 83,

challenging Dr. Straus's testimony about pre-dated prescriptions, and whether they were written

for a legitimate medical purpose. Doc. 407, p. 243. The Court responded: "1 think the jury has

plenty, plenty, plenty of evidence in this case to decide that there was no legitimate medical

purpose for any of these that he wrote." Doc. 407, p. 243. In ruling on a motion for judgment of

acquittal, a trial court must by necessity comment on the sufficiency of the evidence. These

statements were not made before the jury, however, and present no bias against Petitioner

personally. Thus, Petitioner has failed to show that there was any conduct by the court

that required a challenge by trial counsel.

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 38 of 69

5. Trial Counsel rendered ineffective assistance by failing to challenge "the trial

judge's decision not to allow [Petitionerl's computer-expert-witness to testify

at trial." Doc. 459, p. 10.

In his fifth ground, Petitioner alleges that trial counsel was ineffective for failing "to

challenge the trial judge's decision not to allow Green's computer-expert-witness to testify at

trial." Doc. 459 at 10. As Respondent points out, it is not clear from Petitioner's description of

his claim at what stage of the litigation he believes his attorney was ineffective, but the assertion

is unsupported by the record.

The record reflects that trial counsel did challenge the trial court's decision to

exclude Petitioner's computer expert, James Puckett, in his motion for new trial. Doe. 260 at

15-19. Specifically, Petitioner argued that "the defense intended to call a computer expert to

testify regarding flaws in how Dr. Green's computer medical record program functioned."

Doe. 260, p. 18. He further stated that "this evidence was essential to the defense because

throughout the trial, the Government relied upon reports they printed from the program in some

instances as their only evidence regarding Dr. Green's treatment of particular patients." Doe.

260, p. 18. Thus, contrary to Petitioner's assertion, counsel did challenge the trial court's

decision to exclude the computer expert from testifying at trial, so Petitioner cannot argue that

his counsel was deficient for failing to do so.

Furthermore, Petitioner cannot make a showing, even if counsel was deficient, of

prejudice. The district court, in ruling on the Motion for New Trial, found that Petitioner's

defense was not prejudiced by the exclusion of Puckett:

As the Court observed throughout several discussions ofPuckett's testimony, Green

never demonstrated that Puckett's testimony was necessary to assist the jury to

understand the evidence or to determine a fact in issue. Any testimony from

Puckett would have been cumulative at best, misleading at worst. Green himself

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 39 of 69

testified extensively about the nature of his computer records system and its many

flaws. Green was the creator of the system and its primary user. He was the

person most qualified to testify about its use. Green's testimony about the

system was largely successful, effectively rebutting the Government's

contention that the computer records were fraudulent.

Instead, it appeared most likely that the computer records were simply unreliable

due to--an inherenUy—flawed system. Whether the records were fraudulent or

merely flawed was ultimately unimportant to the case. In either circumstance, the

computer records and the handwritten records tended to show that Green's

practice in prescribing controlled substances was not consistent with any standard

of practice generally recognized and accepted in the United States. As such, it is

unlikely that Puckett's testimony would have affected the jury's decision.

Doc. 432 at 27. Therefore, Petitioner's claim of ineffective assistance as enumerated in his fifth

ground is meritless and must be denied.

6. Trial Counsel rendered ineffective assistance because trial counsel and the

prosecutor "were privy to exculpatory evidence that would have impeached

the Medical Examiner—Melissa Sims, M.D.—who was the prosecution

witness." Doc. 459, p. 11.

In his sixth ground, Petitioner alleges that trial counsel and the Government were privy to

exculpatory evidence that would have impeached a key prosecution witness, Dr. Melissa Sims, a

medical examiner. Doc. 459, p. 11. Specifically, Petitioner states that trial counsel "failed to call

a defense witness who would have testified and presented material facts." Doc. 459, p. 11.

Although Petitioner's petition is devoid of facts to support his allegation, Petitioner filed a

Fourth Motion to Expand the Record in Support of Grounds Three, Six, Eight, Ten, Thirteen and

Fifteen (Doc. 477) where he presents "evidence" to support his claims. As noted above in

Section V.13.3., this evidence consisted of documents concerning a marital dispute between Dr.

Sachy and Dr. Sims and a forgery investigation against Dr. Sims instigated at Dr. Sachy's

request. Because such evidence is irrelevant and inadmissible under any rule of the Federal Rules

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 40 of 69

of Evidence, Petitioner's counsel did not provide ineffective assistance as a result of any decision

not to attempt to introduce it at trial.

7. Trial Counsel rendered ineffective assistance by not challenging "the

prosecution-witness who alleged to be an IRS tax-agent who testified before

the jury that [Petitioner] had IRS tax problems when [Petitioner] did not."

Doc. 459, p. 12.

In his seventh ground, Petitioner alleges that trial counsel did not challenge "the

prosecution-witness who alleged to be an IRS tax-agent who testified before the jury that

[Petitioner] had IRS tax problems when [Petitioner] did not." Doe. 459, p. 12. He further argues

that trial counsel failed to introduce exculpatory evidence that would have impeached the witness

and would have exonerated Petitioner of those accusations.

The record reflects that at trial, the government called Emmett Denham, a special agent

with the Internal Revenue Service, Criminal Investigation Division. Doe. 407, p. 142. Mr.

Denham affirmed that he investigates, among other things, tax evasion, money-laundering, and

structuring. Doe. 407, p. 142. The Government then presented evidence of several tax returns for

Petitioner, Dorothy Green, and several health care facilities. Doe. 407, p. 143. Denham testified

as to the wages reported by Petitioner and his wife during 2000, 2001, and 2002, and to the gross

receipts for his medical facilities. Doe. 407 at 142-55. After reviewing the tax records, Denham

testified that he could not explain based on the tax records how Green could have accrued the

$700,000 in cash and other assets that were found during a search of Green's house. Doe. 407, p.

155 ("Nothing on the return signifies that there would be an excess of cash to store at the

residence.").

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 41 of 69

The record reflects that trial counsel cross-examined Mr. Denham, and challenged some of

Mr. Denham's testimony. Doc. 407, P. 182. Particularly, trial counsel challenged Mr. Denham's

knowledge of the amount of cash, and the source of that cash, found in Petitioner's house:

Trial Counsel: Now, you alluded in your direct testimony to the money that was

found in Dr. Green's house. I believe Mr. Brown said over

$700,000. Do you remember that question?

Yes.

Witness:

Trial Counsel: Now, of that $700,000 that was found in Dr. Green's house, are

you able to provide any information whatsoever of how much of

that related to treatment of patients for pain where they received

controlled substances?

We just tied it to his treatment of patients, from my knowledge.

Witness:

Trial Counsel: All right. So that money, as far as you know, could cover a wide

variety of income from patients for all manner of treatments,

couldn't it?

It's based on his patients. I have no knowledge of how many

Witness:

patients, you know, pain, how many patients whatever you stated

before, I mean, I just it's just number of deposits. I mean, it's his

business bank account. It speaks for itself.

Trial Counsel: So all you're doing is testifying as to numbers, nothing else?

Right. The amount of deposits, the amount of projected-- that he

Witness:

was projected to earn in those years, and subtract the two, and you

get a difference there of approximately $500,000 dollars, which if

they're not deposited in the bank, in my experience and knowledge,

it's cash.

Trial Counsel: All right. The point is whatever is not deposited in the bank, you

do not know the source of that money, do you?

Doc. 407, p. 187. The record reflects that trial counsel clearly challenged Mr. Denham's

testimony. Further, as Petitioner has failed to identify what evidence trial counsel failed to

present that would have countered the accusations, and failed to offer any evidence that

would show how Mr. Denham could have been impeached in such a way that the outcome of

the trial would have been different, Petitioner's seventh ground must be denied.

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 42 of 69

8. Trial Counsel rendered ineffective assistance when he "failed to challenge the

prosecutor's use of false computer-data that was authenticated to be

[Petitionerj 's patients-medical-files used in IPetitionerl 's medical practice."

Doc. 459, p. 13.

In Ground Eight, Petitioner contends that his trial attorney was ineffective for failing to

challenge the Government's use of records from his laptop which, he contends, were not the

actual patient medical files. Instead, Petitioner asserts that the actual patient medical records

were on a server that was seized by the Houston County Sheriff's Department. Doc. 459, p. 13.

The record reflects that Petitioner's counsel and the government stipulated to the Green

patient file database as well as the patient records, both the physical files and the computer files.

Doc. 202, p. 4; Doc. 395, p. 74. The stipulation provided:

The copies of the individual patient files provided in discovery to the defense are

stipulated by the Government and Defendants as files assembled and maintained

by the staff of Complete Health Care Center, inc. and/or Medical Center Urgent

Care, Inc., taken from the custody and care of Spurgeon Green, Jr. as the operator

of said practice by law enforcement. As such the said files (both computer and

paper) are admissible as being true and accurate reproductions of those patient

records.

It is further stipulated that a computer program which Green created for the

management of patient files was seized by and duplicated by law enforcement. A

CD identified as Exhibit P-1384 is admitted into evidence jointly by the

Government and the Defendants as being true and accurate versions and

reproductions of those computer patient records of the Green practice (the original

data remained on Green's computers which were returned after the information

had been duplicated) and used by the staff of Complete Health Care Center, Inc.

and/or Medical Center Urgent Care, Inc. to include Green for the purpose of

maintaining patient records.

Doc. 202, p. 5. Petitioner has offered no details by which his claim can be analyzed, and his vague

assertions do not show that trial counsel was deficient in failing to object to the stipulated medical

records. Therefore, Petitioner's eighth ground must be denied.

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 43 of 69

9. Trial Counsel rendered ineffective assistance when he "failed to present at

trial material exculpatory evidence to show that [Petitioner] did not violate

any Federal or state law nor any DEA policy or agency rules that had been

published in the Federal Register when [Petitioner] left signed and dated

prescriptions to the patient only if there were a legitimate medical purpose

based upon her physical and medical examination of that patient on the date

that the prescription was signed and dated." Doc. 459, p. 14.

In his ninth ground, Petitioner contends that trial counsel failed to present evidence that

would have refuted the government's showing that Petitioner violated federal regulations when

he left signed, dated prescriptions with his Physician's Assistant, Dorothy Mack.

Petitioner's argument mirrors his testimony on cross-examination, which is littered with

objections from trial counsel. Doc. 411, pp. 199-212. During cross-examination, the Government

questioned Mr. Green about the Code of Federal Regulations. Doc. 411, p. 199. Over objection

from trial counsel, the 2002 Code of Federal Regulations was admitted. Doc. 411, p 201. The

Government then read into the record Section 1306-05 of the Code of Federal Regulations: "all

prescriptions for controlled substances shall be dated as of and signed on the date when issued;

and shall bear the full name and addresses of the patient, the drug name, strength, dosage, form,

quantity prescribed, directions for use and the name, address and registration number of the

practitioner?" Doc. 411, p. 202. Petitioner responded: "1 agree with that." Doc. 411, p. 202.

During the Government's case, the following testimony from Dr. Straus concerning

federal and state regulations of Schedule II narcotics was elicited:

Prosecution: All right. How about predating prescriptions for Schedule Two

narcotics?

That's a no-no. Basically, you can't do it. It's illegal. You're told

Dr. Straus:

that you cannot predate When you write a prescription for

narcotics, it has to be on the date that you signed it. So it's the date

you signed it. You can't predate them; you can't postdate them.

It has to be

Prosecution: Are there any exceptions to that?

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 44 of 69

Dr. Straus:

No.

Prosecution: And what is the purpose for this First of all, where does that

regulation come from?

That's both Federal and State regulations.

Dr. Straus:

Doc. 400, pp. 36-37.

The relationship between the federal regulations regarding pre-dated prescriptions and the

criminal law regarding dispensing controlled substances was intensely argued throughout the

proceedings in this case. Trial counsel challenged this evidence both at trial and in his post-trial

motion for judgment of acquittal or new trial. Trial counsel argued that "violations of

prescription-writing rules are often dealt with at the state level through the Composite Medical

Board of Georgia by means of fines, probationary conditions on one's practice, and

continuing education requirements." Doc. 260, p. 11. Further, Petitioner argued that he was

issuing multiple prescriptions on a single visit for up to a 90-day supply, provided that each

separate prescription included written instructions indicating the earliest date on which a

pharmacy could fill each prescription, pursuant to 21 C.F.R. § 1306.12. Green testified at length

about this procedure, which he described as a "do not fill until" prescription.

In its Order denying Petitioner's motion for judgment of acquittal or new trial, the Court

explained that "the overall evidence indicated that Green intended to give his patients the drugs

they requested, with no concern for whether they needed the drugs or not." Do c. 432, p. 17. It

further noted: "In light of the extensive evidence about Green's overall practices and the specific

evidence about his practices with the patients who received pre-signed prescriptions, the

weight of the evidence preponderated heavily in favor of a finding that Green was

distributing controlled substances illegally." Id.

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 45 of 69

The Eleventh Circuit also addressed this issue in its opinion. On appeal, Petitioner and codefendant Mack argued that there was insufficient evidence to convict them of counts 52 through 83,

for unlawfully dispensing or distributing controlled substances by pre-signing prescriptions. The

Eleventh Circuit recognized the viability of counsel's argument, but ultimately held that while "a

violation of section 1306.05 does not constitute a per se violation of section 841, the jury was entitled

to infer, based on Green's pre-signing and pre-dating of the prescriptions and Mack's delivery of

those prescriptions to Green's patients, that they violated the Act." Joseph, 709 F.3d at 1102.

The record shows that Petitioner's counsel vigorously and effectively raised arguments

concerning Petitioner's compliance with federal regulations, at trial, in post-trial motions, and on

appeal. The fact that these arguments were not accepted by the jury, trial court, or court of appeals

is not, alone, sufficient to establish ineffective assistance of counsel. The record of written and

oral arguments by Petitioner's counsel shows that counsel's conduct was well within the

Constitutional requirements.

10. Trial Counsel rendered ineffective assistance when he "failed to present

exculpatory evidence at trial to challenge the prosecutor's

misrepresentation—'but for'—that narcotic medication prescribed by

[Petitioner] on September 27, 2002 contributed to Evon Harper's death

caused by acute respiratory distress syndrome (ARDS) and severe

respiratory syndrome (SARS) caused by Pneumococcal pneumonia." Doc.

459, p. 15.

In his tenth ground, Petitioner argues that his trial counsel did not adequately challenge

the testimony of the medical examiner regarding the cause of death for patient Evon Harper.

Because Petitioner cannot show by a preponderance of the evidence that trial counsel's

performance was deficient or that he was prejudiced by the inadequate performance, relief on

this ground should be denied.

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 46 of 69

During trial, Dr. Melissa Sims, the medical examiner testified as to her knowledge of the

autopsy report of Ms. Harper. Doe. 404, pp. 180-182. Dr. Sims specifically stated the cause of

Ms. Harper's death was "due to lobar pneumonia. In other words, a bacterial pneumonia that has

affected an entire lobe of a lung and adult respiratory distress syndrome. And I said polypharmacy

was a contributory factor in the death." Doc. 404, p. 181. The prosecutor did not represent that Ms.

Harper would not have died "but for" the narcotic prescribed by Petitioner. Instead, Dr. Sims stated

that the polypharmacy, specifically, hydrocodone, oxycodone, and Diazepam "contributed to" Ms.

Harper's death. Doe. 404, p. 181. As mentioned in Ground One, supra, Dr. Sims explained that

the drugs contributed to Ms. Harper's death because such depressants may cause a person to

lose control of her airway and aspirate stomach contents into the lungs. Doc. 404, p. 182. The

aspirated stomach contents then lead to a bacterial infection that causes pneumonia and

respiratory distress. Doc. 404, p. 182. Dr. Sims testified that the drugs caused serious bodily

injury to Harper by causing the pneumonia that led to her death. Doe. 404, p. 182.

On cross-examination, Petitioner's trial counsel questioned Dr. Sims regarding the

proximate cause of Ms. Harper's death. Dr. Sims reiterated that the primary cause of death was

pneumonia, accompanied by adult respiratory distress syndrome. Doe. 404, p. 215. Counsel

questioned Dr. Sims further about the results of toxicology testing on Ms. Harper's blood. Dr.

Sims testified that the levels of oxycodone and hydrocodone were "above the accepted

therapeutic range," but acknowledged that there was "a big difference between above

therapeutic and toxic." Doe. 404, p. 213. She affirmed that "a person can have above

therapeutic at quite a high level and still not die from it," though she also noted that the

pathology report was based on "autopsy blood" rather than the blood samples obtained when

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 47 of 69

Ms. Harper was admitted to the hospital. Id. Ms. Harper was admitted to the hospital

approximately 24 hours before she died. Doe. 404, p. 212.

In addition to cross-examination, trial counsel challenged the findings of Dr. Sims

through the testimony of Dr. Adams and also through Petitioner's own testimony. As noted

above, Dr. Adams reviewed the autopsy reports of several of the deceased patients, and testified

generally that pathologists do not have clinical experience with pain medication and frequently

attribute death to drugs when there are no external findings to suggest a cause of death. Doe.

410, p. 61. He noted that several of the deceased patients had serious medical conditions that

made premature death likely. See, e.g. Doe. 410, pp. 60, 82, 91. He also testified that drug levels

are of little significance because different patients are able to tolerate different levels of drugs.

Doe. 404, pp. 60, 81.

Petitioner, himself a physician, specifically addressed the autopsy report for Ms. Harper

during his testimony. He noted that the primary cause of death listed in the autopsy report was

lobar pneumonia, with a secondary finding of adult respiratory distress syndrome and a third

finding of polypharmacy. Doe. 409, p. 111. Petitioner testified that opiates would not cause fluid

to accumulate in the lungs, although an overdose could cause accumulation "indirectly

attacking the respiratory center." Id.

The record shows that Petitioner's counsel adequately challenged the autopsy results as

to Ms. Harper on cross-examination, direct examination of the defense expert, and direct

examination of Petitioner. There is no indication that other exculpatory evidence was available.

Case 5:07-cr-00002-CAR-CHW Document 482 Piled 02/26/16 Page 48 of 69

11. Trial Counsel rendered ineffective assistance when he "failed to introduce

and submit material exculpatory evidence at trial that would have impeached

the testimony of the Sheriff Deputy whose testimony was that [Petitioner]

treated over 300 known drug addicts." Doc. 459, p. 16.

In his eleventh ground, Petitioner says that his attorney failed to introduce

evidence at trial that would have impeached the testimony of a Sheriff Deputy. According

to Petitioner, the evidence would have shown that his office was inundated with a flood of

new patients between March and May of 2003, and that these new patients were drug

addicts. He claims he had documentation that would have shown that each of these patients

was given a referral for drug rehabilitation. Doc. 459, p. 16.

In this ground, Petitioner appears to be referencing Houston County Sheriff's Deputy

Manny Quinones. Deputy Quinones testified at trial that Petitioner's patients included about 300

individuals who had violated drug laws in the past. Doc. 395, pp. 83-85. Trial counsel

specifically objected to this testimony as irrelevant, that an inadequate foundation had been laid,

and that the evidence was inadmissible under Fed. R. Evi. 403 as highly prejudicial. Doc. 395, p.

87. The district court overruled the objection, finding that while the evidence was prejudicial, it

was "clearly relevant" and admitted it. Doc. 395, p. 87. On cross-examination, trial counsel

inquired as to the search warrants issued to Deputy Quinones, as well as to the general procedure

used during the search of Petitioner's offices. Doc. 395, pp. 122-143.

Appellate counsel argued too, on appeal, that the district court erred in admitting the

testimony, but the Eleventh Circuit found no error. The Circuit Court concluded that the

"testimony was relevant to prove that many of Green's patients either abused their drugs or sold

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 49 of 69

their drugs and that Green either knew or should have known about his patients' misuse of

their prescription drugs." Joseph, 709 F.3d at 1101.

Now Petitioner claims that trial counsel had in his possession exculpatory evidence which

would have impeached the testimony of Deputy Quinones. Doc. 459, p. 16. However, Petitioner

does not present this evidence to the Court, and the court has no basis for believing such

evidence exists. Therefore, as Petitioner cannot make a showing that counsel was deficient in

failing to present evidence that does not appear to exist, relief on Petitioner's eleventh ground

must be denied.

12. Trial Counsel rendered ineffective assistance when he "failed to challenge

prosecutorial misconduct that resulted in a miscarriage of justice

contributing to a conviction that had no legal basis because of the

prosecutor's adoption of a misleading position alleging that so-called

predating prescriptions was a violation of federal law when there was no

such law, nor were there DEA-agency rules that had been published in the

federal register." Doc. 459, p. 17.

Petitioner argues that trial counsel was ineffective in failing to challenge the presentation

of evidence regarding the legality of pre-dated prescriptions. Doc. 459, p. 17. This argument is

similar to the one raised in ground nine in that Petitioner is re-asserting he predated prescriptions

for a legitimate medical purpose after examining his patients. Specifically, similar to ground

nine, Petitioner now asserts that the argument presented by the Government amounted to

prosecutorial misconduct. In order to show prosecutorial misconduct, "(1) the remarks must be

improper, and (2) the remarks must prejudicially affect the substantial rights of the defendant."

United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). "A defendant's substantial rights

are prejudicially affected when a reasonable probability arises that, but for the remarks, the

outcome of the trial would have been different." Id. Petitioner essentially recasts his Motion for

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 50 of 69

New Trial, and his appeal, in the form of alleged actions of prosecutorial misconduct. Because

Petitioner's argument addressing the predated prescriptions have been discussed in other parts

this motion, and the Petitioner has not shown in this ground that his counsel was ineffective by

not challenging the alleged prosecutorial misconduct claim, relief on this ground should be

denied.

13. Trial Counsel rendered ineffective assistance when he "operated under a

conflict of interest and failed fiduciary-duty to his client—[Petitioner]—

because [trial counsel] was privy to the facts that the computer-medicalrecords-files presented in testimony at trial were misrepresented as being

authentic when they were in fact test-records from [Petitionerl's laptop

computer that was used for computer programming." Doc. 459, p. 18.

Petitioner's thirteenth ground is similar in form to his second ground, in that he alleges

trial counsel operated under a conflict of interest. As stated above, an attorney's conflict of

interest may deprive a defendant of his Sixth Amendment right to assistance of counsel.

Strickland, 466 U.S. at 692; Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). The existence of a

conflict of interest does not automatically require reversal. Mickens v. Taylor, 535 U.S. 162, 168

(2002). A conflict of interest will rise to the level of reversible constitutional error only if the

defendant has demonstrated that "an actual conflict of interest adversely affected his lawyer's

performance." Id. (citing Cuyler, 446 U.S. at 348-49).

Petitioner makes the conclusory allegation that "[trial counsel] was privy to the facts that

the computer-medical-records-files presented in testimony at trial were misrepresented as being

authentic when they were in fact test-records from [Petitioner]'s laptop computer that was used

for computer programming." Doc. 459, p. 18. Petitioner has not, however, demonstrated that "an

actual conflict of interest adversely affected his lawyer's performance." Petitioner's conclusory

allegations are insufficient to support a finding that counsel operated under a conflict of interest,

Case 5:07-cr-00002-CAR-CHW Document 482 Filed 02/26/16 Page 51 of 69

much less that such a conflict adversely affected his performance. See Caderno v. United States,

256 F.3d 1213, 1218-19 (11th Cir. 2001) (defendant must show that counsel actually actively

represented his own financial interest during trial, not just that the possibility of an actual conflict

existed). Further, as discussed in Petitioner's eighth ground, the record reflects that Petitioner's

counsel and the Government stipulated to- the Green patient file database as well as the patient

records, both the physical files and the computer files. Doc. 202, p. 4; Doc. 395, p. 74.

For these reasons, Petitioner's thirteenth ground must be denied.

14. Appellate Counsel rendered ineffective assistance when she "failed to raise

on appeal the district-court judge's decision to violate [Petitioner]'s Sixth

Amendment rights to have witnesses to testify in his favor." Doc. 459, p. 19.

In Petitioner's fourteenth ground, Petitioner challenges appellate counsel's alleged failure

to raise on appeal the Court's "refus[al] to allow Green's computer-expert-witness to testify at

trial." Doc. 459, p. 19. He further maintains that "had the computer-expert been allowed to

testify at trial, the outcome of the trial would have been different." Doc. 459, p. 19. This ground

is related to Petitioner's fifth ground, in which he alleged his trial counsel was ineffective by

failing "to challenge the trial judge's decision not to allow Green's computer-expert-witness to

testify at trial." Doc. 459 at 10. Just as relief on ground five should be denied, relief on this

ground should also be denied.

As Respondent indicated in the discussion of Petitioner's fifth ground, it is still unclear

from Petitioner's description of his claim at what stage of the litigation he believes his trial

counsel was ineffective, but the assertion is unsupported by the record. When reviewing

appellate counsel's performance, the ambiguity becomes even more apparent. This

Case 5:07-cr-00002 -CAR -CHW Document 482 Filed 02/26/16 Page 52 of 69

Recommendation presumes that Petitioner is challenging the trial court's decision to exclude

Petitioner's computer expert, James Puckett.

As mentioned above, the record reflects that the Court, in its ruling on Petitioner's

Motion for New Trial, found that Petitioner's defense was not prejudiced by the exclusion of

Puckett's testimony: