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United States v. Tsai

United States District Court, S.D. Ohio, Western Division, Cincinnati

May 4, 2018

PETER TSAI, Defendant.

          Michael R. Merz, Magistrate Judge


          Susan J. Dlott, District Judge

         This is an action on Defendant's Motion to Vacate under 28 U.S.C. § 2255, pending on Defendant's Objections ECF No. 146) to the Magistrate Judge's Report and Recommendations (ECF No. 145), Defendant's Motion for Certificate of Appealability (ECF No. 147), and the Government's Response (ECF No. 150).

         In light of the parties' submissions, the Court finds a recommittal to the Magistrate Judge is unwarranted and the Order to that effect (ECF No. 148) is VACATED.

         Under Fed.R.Civ.P. 72(b)(3), the Court reviews de novo a Magistrate Judge's report and recommendations on a prisoner petition, which includes motions to vacate under 28 U.S.C. § 2255.

         Procedural History

          Defendant was indicted June 19, 2013, on four counts for violations of 18 U.S.C. §§ 1349, 1347, 545, and 1956 (Indictment, ECF No. 1). On August 8, 2014, after three days of trial but before the Government had rested its case, Tsai entered into a plea agreement with the United States which provided in pertinent part that he would plead guilty to conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349 and illegal importation of merchandise in violation of 18 U.S.C. § 545 (ECF No. 63). After receiving and reviewing a presentence investigation report ("PSR"). the Court sentenced Tsai to 78 months imprisonment on each of Counts One and Three with the time to be served concurrently. Defendant appealed and the Sixth Circuit affirmed both the conviction and sentence. United States v. Tsai, No. 15-3655, 651 Fed.Appx. 380 (6th Cir. June 7, 2016). Tsai filed the instant Motion September 4, 2017.

         Tsai pleads one ground for relief, to wit, that his guilty plea was not knowing and voluntary due to ineffective assistance of trial counsel (Motion, ECF No. 134, PageID 1495.) The Motion is supported by a lengthy Memorandum (ECF No. 135, PageID 1504-1528) that begins with a statement of factual background citing trial testimony Id. at PageID 1505-1511. The Memorandum men relies on the attached Affidavit of Peter Tsai (ECF No. 135-1, PageID 1529-1536), which details the ways in which Tsai believes Kevin Conners, his retained defense counsel, was deficient in preparing for trial in failing to be prepared to effectively cross-examine the Government's witnesses, in not retaining expert witnesses for the defense, in not subpoenaing patients to testify in his behalf, and in a number of omer ways.

         Tsai avers that at the end of the third day of trial, Conners told him the case was not winnable (Tsai Affidavit, ECF No. 135-1, ¶ 8, PageID 1530). He farther avers, "I decided to plead guilty because I realized Mr. Conners was not prepared to defend me at trial." Id. at ¶ 10. The balance of the Affidavit details the ways in which Tsai believes Conners was unprepared.: (1) failure to consult experts to rebut the reports of Government experts Drs. Terry Torbeck and Human Akbik (ECF No. 135, PageID 1516); (2) failure to consult a radiology expert and an expert on piriformis syndrome id.; (3) failure to subpoena patient witnesses to trial, id. at PageID 1520; and (4) failure to interview Government witnesses id. at PageID 1523. As to the second or prejudice prong of Strickland v. Washington, 466 U.S. 668 (1984), Tsai asserts he would have insisted on completing the trial if Conners had been prepared. Id. at PageID 1526.

         The Answer notes what is confirmed by the docket: Tsai was sentenced ten months after the plea and never sought to withdraw his plea, change counsel, or otherwise represent that he had received ineffective assistance of trial counsel. Nor did he make any such claim at sentencing. Represented by new counsel on appeal, [1] Tsai sought reversal on a claim that the Court had violated Fed. R. Crim. P. 11 in encouraging him to plead guilty. Significantly, Tsai claimed the Court's statement at the end of the third day of trial "coerced [him] into an involuntary plea that he otherwise would not have entered."

But for the district court's violation of Rule 11, Tsai would not have entered a guilty plea because he was on the third day of trial. The fact that he pleaded guilty immediately after the judge made her improper comments demonstrates that he would not have plead [sic] guilty but for the judge's remarks.

(Brief of Appellant, 6th Cir. No. 15-3655, ECF No. 18, pp. 18-19). Nowhere in his Brief does he assert there was any other cause for his guilty plea. In particular, he makes no claim that any of his attorney's conduct or omissions had anything to do with his decision. Failure to make this claim to the Court of Appeals does not legally bar him from raising it now[2], but factually the claims are inconsistent.

         The Answer then recounts at length the Government's theories for trial and what the Government knows about Mr. Conners' preparation (ECF No. 141, PageID 1712-14). This argument includes response to the Affidavit of Loren Fishman, M. D., filed by Tsai in support of his Motion to Vacate (ECF No. 137-1). The Government concludes by arguing that Tsai can show no prejudice from anything Conners did or did not do as to Count One because he separately pleaded guilty to Count Three, the smuggling charge, and does not aver any basis for setting that conviction aside (Answer, ECF No. 141, PageID 1735).[3]

         The governing standard for ineffective assistance of counsel is found in Strickland, supra:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show mat counsel's performance was deficient. This requires showing that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing Knowles v. Mirzayance, 556 U.S.I 11 (2009).

         With respect to the first prong of the Strickland test, the Supreme Court has commanded:

Judicial scrutiny of counsel's performance must be highly deferential....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 a wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under die circumstances, the challenged action "might be considered sound trial strategy."

466 U.S. at 689.

         As to the second prong, the Supreme Court held:

The defendant must show that mere is a reasonable probability mat, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability ...

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