United States District Court, E.D. Michigan, Southern Division
ORDER DENYING PLAINTIFF'S § 2255 HABEAS
Victoria A. Roberts, United States District Judge.
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.
petition is DENIED.
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.
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
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
Hogan's arguments are unavailing.
STANDARD OF REVIEW
Section 2255 Motion
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).
Ineffective Assistance of Counsel
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 ...