United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING WITHOUT PREJUDICE
DEFENDANT'S MOTION FOR RECONSIDERATION, TRANSFERRING
DEFENDANT'S SECOND § 2255 MOTION TO THE SIXTH
CIRCUIT, AND DENYING DEFENDANT'S MOTION FOR APPOINTMENT
H. CLELAND UNITED STATES DISTRICT JUDGE.
Nakeysha Wisdom was convicted by her plea of guilty to one
count of conspiracy to commit health care fraud in violation
of 18 U.S.C. §§ 1349, 1347 and sentenced to 70
months imprisonment. (Dkt. #65.) Before the court are three
pending motions: a motion for reconsideration of the
court's order denying her motion under 28 U.S.C. §
2255 (Dkt. #92), a motion for appointment of counsel (Dkt.
#109), and a motion to vacate her sentence under § 2255.
As to the first motion, the Government has filed a response.
(Dkt. #110.) For the following reasons, Defendant's
motion for reconsideration will be denied without prejudice,
her motion to vacate her sentence will be transferred to the
Sixth Circuit, and her motion for appointment of counsel will
opened and operated CLW Adult Day Care Service
(“CLW”), a business that purportedly provided
psychotherapy services. (Dkt. #31 Pg. ID 139.) From May 2011
to December 2013, CLW billed Medicare for those services; all
told, CLW submitted approximately $4.7 million in claims to
Medicare, for which Medicare paid approximately $900, 000.
(Id. at Pg. ID 139-40.) Defendant admitted that she
“directed the billing of Medicare for psychotherapy
services that were not medically necessary, were never
provided, or were for beneficiaries who were not present at
CLW.” (Id. at Pg. ID 139.) She acknowledged
receipt of the $900, 000 paid by Medicare, but she denied
that the entire amount was attributable to fraudulent
billing. (Id. at Pg. ID 139-40.)
Motion for Reconsideration (Dkt. #92)
entry of judgment in this case, Defendant moved under 28
U.S.C. § 2255 to vacate her sentence. (Dkt. #66.) After
the Government responded to the motion (Dkt. #80), Defendant
moved to obtain copies of the transcript of her sentencing
hearing at no cost to her. (Dkt. #88.)
ruling on the motion for the sentencing transcript, the court
issued its order denying Defendant's motion to vacate.
(Dkt. #91.) Defendant now moves for reconsideration of that
order. (Dkt. #92.) She informs the court that, at the same
time she moved to obtain the sentencing transcript, she sent
in a motion to hold her § 2255 in abeyance so that she
would have time to review the transcript and respond
appropriately. She asks for reconsideration because the court
did not hold the § 2255 motion in abeyance, so she did
not have time to review the transcript before filing a reply.
She asserts that the failure to grant an abeyance and allow a
reply brief is a palpable defect because the transcript was
necessary to point out errors by the Government.
initial matter, there is no record of a motion to hold the
§ 2255 in abeyance in June 2017, around the time of her
motion for the sentencing transcript. Although she asserts
that she sent the two motions in the same envelope, the court
has been unable to find any record of having received the
original abeyance motion. There is, however, what seems to be
a copy of the abeyance motion docketed in August 2017, just
moments after the motion for reconsideration. It appears to
the court that Defendant must have sent in a copy of her
abeyance motion along with her motion for reconsideration.
The court accepts Defendant's representation that she
sent in the original abeyance motion in June, not just with
her reconsideration motion.
event, the court is inclined to find that the motion for
reconsideration is without merit. Defendant was not entitled
to a reply brief on her § 2255 motion; replies are
optional, and the court could properly decide her motion
without the benefit of a reply. See Rule 5(e), Rules
Governing Section 2254 and 2255 Cases. But the Government
suggests-and the court agrees-that a sensible course is to
permit Defendant, if she can do so in good faith, to file a
renewed motion for reconsideration. Defendant should now be
in receipt of the transcript of her sentencing hearing, as
the court granted her motion for a transcript by docket text
order and served her with a copy of the transcript. If
Defendant determines, after reviewing the transcript, that
there was some palpable defect by which the court or the
parties have been misled that would lead to a different
disposition of her motion to vacate, see E.D. Mich.
L.R. 7.1(h)(3), she may file a renewed motion for
reconsideration no later than July 30, 2018.
Motion to Vacate Sentence Under 28 U.S.C. § 2255 (Dkt.
noted above, Defendant first filed a motion to vacate her
sentence under 28 U.S.C. § 2255 in January 2017 (Dkt.
#66), which the court denied (Dkt. #91). Now before the court
is another motion to vacate under § 2255. (Dkt. #112.)
defendant seeks to file a second or successive motion under
§ 2255 with the district court, the defendant must file
a motion in the appropriate court of appeals for
authorization. 28 U.S.C. § 2244(b)(3)(A). “[W]hen
a second or successive petition for habeas corpus relief or
§ 2255 motion is filed in the district court without
§ 2244(b)(3) authorization from [the court of appeals],
the district court shall transfer the document to [the court
of appeals] pursuant to 28 U.S.C. § 1631.” In
re Sims, 111 F.3d 45, 47 (6th Cir. 1997). Because
Defendant has not obtained authorization from the Sixth
Circuit to file a second motion under § 2255, this court
must transfer any second or successive § 2255 motion to
the Sixth Circuit. Given the docket confusion in this case,
the court could consider this entry as an amended
motion to vacate-rather than a second motion to vacate-that
includes the arguments Defendant intended to offer in reply
on her initial motion. Indeed, the motion seems to offer up
many of the same arguments Defendant made in her first §
2255 motion. But the second motion does raise at least one
new claim: that Defendant's counsel failed to file a
direct appeal within 14 days of her sentencing. (See
Dkt. #112 Pg. ID 626.) In light of the styling of the motion
and the inclusion of another ground for relief, the court
will construe the motion as a second § 2255 motion and
will, as it is bound to do, transfer it to the Sixth Circuit.
The court makes this transfer notwithstanding Defendant's
ability to move again for reconsideration on the denial of
her first § 2255 motion; even if the court were to grant
a motion for reconsideration, it would not affect the status
of this motion as a second motion under § 2255 that is
properly transferred to the Sixth Circuit.
Motion for Appointment of ...