United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 AND MOOTING OTHER PENDING MOTIONS, GRANTING PETITION TO PROCEED IN FORMA PAUPERIS, AND DENYING PETITIONER'S CERTIFICATE OF APPEALABILITY
VICTORIA A. ROBERTS, District Judge.
In August 2007, the Government charged Petitioner Paul Howard Emerson ("Emerson") in a 108 count indictment for various controlled substance violations. In January 2009, Emerson pled guilty under Rule 11 of the Federal Rules of Criminal Procedure to Counts 1 (Conspiracy to Distribute Controlled Substances) and 2 (Unlawful Distribution of Controlled Substances Resulting in Death), in exchange for the dismissal of other charged counts and a reduced maximum sentence of 144 months imprisonment. As part of the plea agreement, Emerson waived his right to appeal the conviction or sentence imposed by the Court.
After pleading guilty, Emerson failed to file: (1) a direct appeal; and (2) a motion under 28 U.S.C. § 2255 within the mandatory one-year statutory period. His conviction became final after failure to appeal on October 31, 2010, and he did not file this motion until January 21, 2015, over four years after his conviction became final. These failings are procedural bars to Emerson's collateral attack under 28 U.S.C. § 2255. While a claim of "actual innocence" can act as an equitable exception to these procedural bars under certain circumstances, Emerson fails to meet the requirements to establish a claim of actual innocence.
Emerson's habeas petition to vacate his sentence is DENIED, (Doc. No. 223); and, the Court GRANTS the Government's Motion to Dismiss Petitioner's Motion to Vacate (Doc. No. 238). Accordingly, Emerson's other pending motions are moot: (1) Motion for Discovery (Doc. No. 236); (2) Motion for Discovery (Doc. No. 239); (3) Motion for Continuance Time (Doc. No. 242); (4) Motion to Compel (Doc. No. 245); and (5) Motion to Vacate (Doc. No. 253).
Emerson moves to vacate his federal conviction under 28 U.S.C. § 2255. Emerson claims that he received ineffective assistance of counsel in violation of his Sixth Amendment right because his attorney: (1) failed to investigate and present evidence showing that the autopsy report and drug screening related to Stephen Slone's death did not test him for heroin usage; and (2) relied on the autopsy report provided through the discovery process and failed to obtain a certified copy. Emerson claims that Mr. Slone's wife and brother informed him that Mr. Slone injected heroin on the night of his death. Emerson argues that his attorney's failure to obtain medical reports testing for heroin as the cause of Mr. Slone's death constitutes ineffective assistance of counsel.
Emerson also argues that Mr. Slone did not die from the methadone dosage that Emerson prescribed. Emerson states that Mr. Slone had five times more than his prescribed dosage in his body at the time of death. He argues that if Mr. Slone was taking five times the dosage, the last prescription given by him would have lasted only six days. Therefore, the methadone in Mr. Slone's system at the time of his death was obtained from sources other than Emerson.
Finally, Emerson claims that the Government offered circumstantial evidence and failed to provide direct evidence of his intent to commit a crime or to aid and abet a crime. He claims that the circumstantial evidence did not establish his guilt or provide a sufficient basis to indict him.
The Government contends that Mr. Slone's autopsy examination and drug screening show that he took the methadone, Xanax, and hydrocodone that Emerson prescribed him and he died of methadone intoxication; there was no evidence that Mr. Slone used heroin. The Government also argues that because Emerson pled guilty and took responsibility for the death of Mr. Slone, the United States did not need to produce evidence that Emerson knowingly prescribed a fatal dose of methadone to Mr. Slone and that heroin was not the cause of death. The Government argues that Mr. Slone's toxicology reports establish the facts against Emerson and a medical expert was prepared to testify that Emerson prescribed controlled substances to Mr. Slone outside of legitimate medical practice.
A. STRICKLAND STANDARD
To establish ineffective assistance of counsel, a defendant must show that his attorney's representation "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 669 (1984). A defendant must also show that his attorney's performance "prejudiced the defense" and that there is a reasonable probability that the result of the case would differ but for his attorney's unprofessional errors. Id. When defendants such as Emerson plead guilty, they must satisfy the prejudice requirement by showing that "there is a reasonable probability that, but for their attorney's errors, [they] would not have pleaded guilty and would have insisted on going to trial." Hill v. ...