United States District Court, E.D. Michigan, Southern Division
ORDER DENYING A CERTIFICATE OF APPEALABILITY
VICTORIA A. ROBERTS, UNITED STATES DISTRICT JUDGE.
October 5, 2017, this Court issued an order denying
Devenkumar C. Patel's (“Patel”) motion to
vacate sentence brought pursuant to 28 U.S.C. § 2255.
(Doc. # 119). Patel filed a Notice of Appeal (Doc. # 120).
The United States Court of Appeals for the Sixth Circuit
remanded the appeal to this Court for the sole purpose of
determining whether to grant or deny a certificate of
reasons stated below, that certificate of appealability is
may not proceed on appeal unless he first obtains a
certificate of appealability. 28 U.S.C. § 2253(c)(1);
Fed. R. App. Proc. 22(b). Such a certificate may be issued
only upon a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
demonstrate this denial, the applicant is required to show
that reasonable jurists could debate whether, or agree that,
the petition or motion to vacate sentence “should have
been resolved in a different manner, or that the issues
presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473,
483-84 (2000) (internal citations and quotations omitted).
When a district court rejects a petitioner's
constitutional claims on the merits, the petitioner must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims to be
debatable or wrong. Id.
entering a guilty plea, Patel was convicted and sentenced on
one count of unlawful distribution of a controlled substance,
18 U.S.C. § 842(a), and one count of health care fraud,
18 U.S.C. § 1347. In his motion to vacate, Patel argued:
(1) his plea was defective because there was no factual basis
at the time his plea was taken; and (2) he was denied
effective assistance of counsel because his lawyers gave him
erroneous advice that he could commit his charged offenses
through mere negligence, leading him to plead guilty to
conduct which was not criminal.
Factual Basis for the Guilty Plea
claimed that there was an insufficient factual basis to
support his guilty plea. He argued that the Court must
consider the record at the time the plea was taken when
determining the factual basis for a plea. In its order
denying Patel's § 2255 motion, the Court noted that
the law of the Sixth Circuit clearly states that “[a]
sufficient factual basis for [Petitioner's] guilty plea,
therefore, must have been present by the time of his
sentencing, when judgment was entered, and not, as
[Petitioner] contends, at his guilty plea hearing.”
United States v. Bennett, 291 F.3d 888, 894 (6th
Cir. 2002). The law also states that “when assessing
whether a district court determined correctly that there was
a factual basis for the plea, pursuant to Rule 11(b)(3),
[the] Court may examine the entire record, including
proceedings that occurred after the plea
colloquy.” United States v. McCreary-Redd, 475
F.3d 718, 722 n.1 (6th Cir. 2007) (internal quotations and
citations omitted). In viewing the record as a whole, the
Court found that Patel had made out a sufficient factual
basis for the crimes that he pleaded guilty to, and denied
the record reflects that Patel made out an adequate factual
basis when he pled guilty, he is not entitled to a
certificate of appealability on this claim. See Sanford
v. Burgess, 2011 U.S. Dist. LEXIS 145624, *16-18 (W. D.
Mo. Dec. 19, 2011) (where the court denied a certificate of
appealability where the record as a whole refuted the
petitioner's claim that there was no factual basis for
his guilty plea).
Ineffective Assistance of Counsel
argued that he was deprived of the effective assistance of
counsel. Specifically, he claimed that his counsel's
ineffectiveness led him to believe that he could commit
unlawful distribution of a controlled substance and health
care fraud through negligence. However, as the Court noted,
the intent requirement for these crimes can be satisfied
through deliberate indifference. See United States v.
Seelig, 622 F.2d 207, 213 (6th Cir. 1980) (“The
deliberate ignorance [jury] instruction has also been
approved for violations of the Controlled Substances
Act.”); see United States v. Reeves, 2014 U.S.
Dist. LEXIS 178695 *27; (N.D. Ohio Dec. 30, 2014) (“The
record contains sufficient evidence to warrant the deliberate
indifference [jury] instruction” in a criminal case
where defendant was convicted of unlawfully distributing
Oxycodone and health care fraud).
admitted to acting deliberately indifferent to his legal
obligations as a pharmacy owner, satisfying the intent
requirement for his charged crimes. Because Patel was
mistaken on the intent requirement of his crimes, and the
consequences of his admissions, his alleged advice from
defense counsel did not and could not have resulted ...