United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, CHIEF JUDGE
the Court is the Motion to Vacate under 28 U.S.C. § 2255
(Doc. 716) and the Motion to Request to Supplement/Amend the
Motion to Vacate (Doc.744) filed by Petitioner Roslyn Dogan.
The United States filed oppositions. (Doc. 726, 737). For the
following reasons, the Motion to Vacate (Doc. 716) is DENIED,
and the Motion to Request to Supplement/Amend the Motion to
Vacate (Doc. 744) is GRANTED IN PART and DENIED IN PART.
2, 2013, Petitioner was indicted for conspiracy to commit
health care fraud in violation of 18 U.S.C § 1349, and
two counts of health care fraud in violation of 18 U.S.C.
§ 1347. (Doc. 150 at p. 7, 13-15). After a five day
trial, the jury returned guilty verdicts on all counts. (Doc.
402). On October 31, 2014, the Court sentenced Petitioner to
90 months imprisonment, two years of supervised release, and
ordered $43, 528, 584.00 in restitution. (Doc. 648).
Petitioner did not appeal her conviction.
filed a Motion to Vacate under 28 U.S.C. § 2255 on
October 30, 2015. (Doc. 716). In her motion, Petitioner
claims that her counsel was ineffective by failing to: (1)
examine all the evidence presented during discovery; (2)
interview prosecution witnesses; (3) file a motion to sever
the loss amount from her co-defendants loss amount; (4) file
a motion to sever her from her co-defendant for the purposes
of trial; (5) file motion a for joinder; (6) disclose
information to Petitioner that may cause a conflict of
interest; (7) challenge all inaccuracies and "false
facts" in the presentence investigation report; (8)
advise defendant of the limited timeline to appeal and
misrepresenting the benefits of appealing. (Doc. 716 at p.
4-9). On January 22, 2016, the Government filed an
opposition. (Doc. 726).
then timely filed a memorandum in support of her Motion to
Vacate after the Court granted her request to file the
memorandum. (Doc. 735-36). Petitioner realleged that her
counsel failed to sever the loss amount and failed to sever
her from her co-defendant. (Doc. 736 at p. 5). Without
seeking leave from the Court, Petitioner also added seven
additional claims of ineffective assistance of counsel. She
claims that her counsel failed to: (1) cross examine
government witnesses; (2) present rebuttal witnesses; (3) use
impeachment evidence as directed by Petitioner; (4) call
critical or expert witnesses; (5) correct the prosecutor for
using "false statistic and inaccurate information";
(6) challenge prosecutorial misconduct; and (7) review
Jencks material. (Doc. 736 at p. 5). The Government
filed a supplemental response on May 6, 2016. (Doc. 737).
December 12, 2016, Petitioner then filed a Motion to Request
to Supplement/Amend her Motion to Vacate. (Doc. 744). In this
motion, Petitioner realleged that her counsel failed to
challenge the loss amount. (Doc. 744 at p. 1). Plaintiff
additionally claims that her counsel failed to object to the
victim enhancements thoroughly and effectively and that he
failed to object to the restitution amount. Id.
2255 provides that a federal prisoner serving a court-imposed
sentence may move the court to vacate, set aside or correct
his sentence. 28 U.S.C. § 2255(a). Only a narrow set of
claims are cognizable on a § 2255 motion. The statute
identifies four grounds on which a motion may be made: (1)
the sentence was imposed in violation of the Constitution or
laws of the United States; (2) the court was without
jurisdiction to impose the sentence; (3) the sentence exceeds
the statutory maximum sentence; or (4) the sentence is
"otherwise subject to collateral attack."
petitioner files a § 2255 motion, the district court is
required by statute to hold a hearing "[u]nless the
motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief." §
2255(b). Applying this statutory command demands a two-step
inquiry. First, the court must determine whether the record
"conclusively negate[s] the factual predicates asserted
in support of the motion for post-conviction relief and
second whether "the petitioner [would] be entitled to
post-conviction relief as a legal matter if those factual
allegations which are not conclusively refuted" are
true. Friedman v. United States, 588 F.2d 1010, 1015
(5th Cir. 1979).
Petitioner's Proposed Amendments
asserts numerous additional claims for relief in her
memorandum in support of her Motion to Vacate, (Doc. 736),
and her Motion to Amend her Motion to Vacate. (Doc.
744). To be timely, a motion under §
2255 must be filed within one year of the judgement of
conviction becoming final. 28 U.S.C. § 2255(f).A judgment
of conviction becomes final when the conviction is affirmed
on direct review or when the time for perfecting an appeal
expires. Clay v. United States, 537 U.S. 522, 527
(2003). Since no appeal was taken, Petitioner's
conviction became final on November 14, 2014, fourteen days
after judgment was entered. See Fed. R. App. P.
4(b); (Doc. 648). The statute of limitations therefore
expired one year later on November 14, 2015.
filed her initial Motion to Vacate two weeks before the
limitations period expired. (See Doc. 716). However, her
memorandum in support of her Motion to Vacate and her Motion
to Amend her Motion to Vacate, which raise new grounds for
relief, were filed five and thirteen months, respectively,
after the limitations period expired. (Doc. 736, 744).
Amendments to a motion to vacate are timely only if the
amended claims relate back to the original petition.
United States v. Gonzalez,592 F.3d 675, 679 (5th
Cir. 2009). "An amendment to a pleading relates back to
the date of the original pleading when ... the amendment
asserts a ...