United States District Court, S.D. Ohio, Western Division, Cincinnati
Michael R. Merz, Magistrate Judge
DECISION AND ORDER
J. Dlott, District Judge
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).
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.
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.
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.
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.
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.
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,  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
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, but factually the claims are
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
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).
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.
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 ...