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United States v. Dogan

United States District Court, M.D. Louisiana

December 10, 2017

UNITED STATES OF AMERICA
v.
ROSLYN DOGAN

          RULING AND ORDER

          BRIAN A. JACKSON, CHIEF JUDGE

         Before 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.

         I. BACKGROUND

         On May 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.

         Petitioner 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[1]; (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).

         Petitioner 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).

         On 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.

         II. LEGAL STANDARD

         Section 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." Id.

         Once a 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).

         III. DISCUSSION

         A. Petitioner's Proposed Amendments

         Petitioner 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).[2] 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).[3]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.

         Petitioner 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 ...


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