United States District Court, E.D. Michigan, Southern Division
PRESENT Honorable Gerald E. Rosen United States District
OPINION AND ORDER (1) DENYING § 2255 MOTION TO
VACATE, SET ASIDE, OR CORRECT SENTENCE, (2) DENYING
CERTIFICATE OF APPEALABILITY, AND (3) DENYING LEAVE TO APPEAL
IN FORMA PAUPERIS
E. Rosen, United States District Judge
session of said Court, held in the U.S. Courthouse, Detroit,
Michigan on November 10, 2016
Khan was indicted, along with 15 co-defendants, on charges of
conspiracy to commit health care fraud in violation of 18
U.S.C. § 1349. The First Superseding Indictment also
charged Khan with one count of conspiracy to pay and receive
kickbacks and two counts of money laundering.
26, 2012, Khan pleaded guilty, pursuant to a Rule 11 Plea
Agreement, to one count of health care fraud conspiracy.
Under the Plea Agreement, Defendant agreed that his
applicable Guidelines sentencing range was 57-71 months. On
May 13, 2013, Khan was sentenced to a term of 60 months'
imprisonment, to be followed by two years of supervised
release, and ordered to pay $1, 789, 234.74 in restitution.
The Court further entered a money judgment of $13, 888,
930.00 against Khan, jointly and severally, and ordered the
forfeiture of $113, 479.58 in seized assets. Kahn did not
appeal his sentence or conviction.
13, 2014, Khan filed the instant Motion pursuant to 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence. As
grounds for § 2255 relief, Defendant Khan claims (1)
that he received ineffective assistance of counsel during
plea negotiations and at sentencing; and (2) that the Court
improperly used facts not found by a jury to enhance his
sentence, and therefore, under Alleyne v. United
States, 133 S.Ct. 2151 (2013), his sentenced must be
DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF
Khan claims that ineffective assistance of counsel during
plea negotiations and sentencing resulted in a longer
sentence than the 0-6 months he contends should have been his
applicable Guidelines range. Specifically Khan claims that
(1) counsel failed to explain that the charge to which he
pled guilty in the plea agreement would result in a higher
Guidelines range than the offense charged in Count 1 of the
First Superseding Indictment; (2) counsel failed to inform
him that the Government had not proved all of the elements of
the health care fraud conspiracy offense; (3) counsel failed
to negotiate a more favorable plea deal; (4) counsel failed
to file written objections to the Pre-Sentence Investigation
Report; and (5) at sentencing, counsel did not object to the
court's calculation of the Guidelines range and failed to
comply with 18 U.S.C. § 3553(a) thereby failing to
preserve those issues for appeal. For the reasons that
follow, the Court finds no merit in any of Defendant's
claims of ineffective assistance of counsel.
requirements for demonstrating ineffective assistance of
counsel were established by the United States Supreme Court
in Strickland v. Washington, 406 U.S. 668, 104 S.Ct.
2052 (1984). To establish ineffective assistance of counsel,
it must be shown (1) that counsel's performance was
deficient and (2) that the deficient performance prejudiced
the defense. 406 U.S. at 687, 104 S.Ct. at 2064.
proper standard for assessing an attorney's performance
is that of reasonably effective assistance. Id.
Thus, a guilty plea cannot be attacked as based on inadequate
legal advice unless counsel was not “a reasonably
competent attorney” and the advice was not
“within the range of competence demanded of attorneys
in criminal cases.” Id.
Strickland court further directed that judicial
scrutiny of counsel's performance must be highly
deferential. Id., 406 U.S. at 689, 105 S.Ct. at
court explained the need for deference:
It is all too tempting for a defendant to second-guess
counsel's assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
counsel's defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance
requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct and to
evaluate the conduct from counsel's perspective at the
time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance; that is the defendant
must overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial
Id. (Citations omitted).
context of a guilty plea, the Supreme Court has held as
[T]he two-part Strickland v. Washington test applies
to challenges to guilty pleas based upon ineffective
assistance of counsel. In the context of guilty pleas, the
first half of the Strickland v. Washington test is
nothing more than a restatement of attorney competence. . . .
The second, or “prejudice” requirement, on the
other hand, focuses on whether counsel's constitutionally
ineffective performance affected the outcome of the plea
process. In other words, in order to satisfy the
“prejudice” requirement, the defendant must show
that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial.
Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366,
Sixth Circuit applied the foregoing standards in Sullivan
v. United States, 11 F.3d 573 (6th Cir. 1993),
a § 2255 case where, as in this case, the petitioner,
challenged the length of his sentence by arguing ineffective
assistance of counsel in connection with his having entered
into a Rule 11 plea agreement. The district court denied
Sullivan's § 2255 motion and the Sixth Circuit
[P]etitioner's claim fails to meet even the first prong
of Strickland. There has been no showing that
counsel's performance was not competent. The record
reveals that the district court discussed the terms of the
plea agreement with petitioner and that he was informed of
the possible sentence which he faced. These terms were
discussed, in petitioner's presence, in ...