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Hogan v. United States

United States District Court, E.D. Michigan, Southern Division

November 2, 2016

RICHARD HOGAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING PLAINTIFF'S § 2255 HABEAS MOTION

          Victoria A. Roberts, United States District Judge.

         I. INTRODUCTION

         This is a habeas case brought under 28 U.S.C. § 2255. Hogan seeks to vacate, set aside, or correct his sentence related to his conviction for conspiracy to commit Medicare fraud. The Sixth Circuit affirmed Hogan's conviction.

         This petition is DENIED.

         II. BACKGROUND

         Richard Hogan worked at New Century, a medical facility in Flint, Michigan. He performed various tasks. He administered direct care to patients; acted as a liaison between patients and their doctors; and helped with the intake of new patients. In April 2012, the FBI raided New Century. Several employees were eventually indicted, including Hogan for Medicare fraud. A jury convicted Hogan guilty of conspiracy to commit health care fraud. He was sentenced to 60 months in prison.

         In April 2014, Hogan appealed his sentence arguing there was: (1) a variance in the evidence used to indict and convict him; (2) insufficient evidence to prove his involvement in a conspiracy; and (3) improperly admitted hearsay evidence. In upholding the convictions, the Sixth Circuit stated, “the record is hardly ‘devoid of evidence' that Hogan knowingly and voluntarily joined the conspiracy to commit Medicare fraud.” “The [G]overnment presented evidence that Hogan . . . recruited many of the clinic's patients with promises of drugs; that he instructed patients that they needed to sign up for psychotherapy treatments if they wanted those drugs; that he diagnosed patients with mental-health disorders though they had none; that he directed the clinic's doctor to prescribe Vicodin, Xanax, and similar drugs to patients; that he assisted employees in creating fake progress notes; that he created such notes himself and that he admitted to the FBI that he knew the clinic had billed Medicare for treatments never provided.” Additionally, the Sixth Circuit held that any hearsay admitted was harmless given the weight of other evidence.

         On February 1, 2016, Hogan filed this motion to vacate, set aside, or correct his sentence. He says false information was used to indict and convict him and he had ineffective assistance of counsel. Specifically, Hogan states his attorney did not: (1) investigate and interview witnesses requested by Hogan which could prove his innocence; (2) move to sever the case from that of co-defendant employees; (3) mention that Hogan reported the fraud to the authorities; (4) correct the Government's allegations that he was a third ranking officer at New Century and knew about the conspiracy; (5) raise the issue that there is a variance in the evidence used to indict and convict him; or (6) preserve a sufficiency of the evidence argument for appeal. Hogan insists that his report of the fraud proves that he did not knowingly and voluntarily join the conspiracy. In fact, he suggests no evidence proved that he knowingly and voluntarily joined the conspiracy.

         All of Hogan's arguments are unavailing.

         III. STANDARD OF REVIEW

         A. Section 2255 Motion

         A prisoner contesting a sentence under 28 U.S.C. § 2255 must show evidence “that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “In order to prevail upon a § 2255 motion, the movant must allege as a basis for relief: ‘(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.' Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001).” Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003). Nonetheless, “a § 2255 motion may not be employed to re[-]litigate an issue that was raised and considered on direct appeal absent highly exceptional circumstances, such as an intervening change in the law.” Jones v. United States, 178 F.3d 790, 796 (6th Cir. 1999).

         B. Ineffective Assistance of Counsel

         A defendant has a Sixth Amendment right to “the effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984). The Supreme Court's two-prong Strickland test for determining whether a habeas petitioner has received ineffective assistance of counsel requires petitioner to establish: (1) that counsel's ...


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