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Hudspeth v. United States

United States District Court, N.D. Texas, Dallas Division

March 10, 2017

WALTER R. HUDSPETH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          PAUL D. STICKNEY UNITED STATES MAGISTRATE JUDGE.

         This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow:

         I. Procedural Background

         Petitioner filed this petition to vacate, set-aside, or correct sentence pursuant to 28 U.S.C. § 2255. He challenges his conviction for conspiracy to distribute and dispense hydrocodone without a legitimate purpose and outside of the scope of professional practice. On September 24, 2014, the district court sentenced him to an above guidelines sentence of 72 months. On February 12, 2016, the Fifth Circuit Court of Appeals affirmed. United States v. Hudspeth, 639 Fed.Appx. 1004 (5th Cir. 2016).

         On March 18, 2016, Petitioner filed this § 2255 petition. He argues he received ineffective assistance of counsel when:

(1) Trial counsel failed to object to the government's intent to seek an upward departure;
2. Trial counsel failed to object to the court's imposition of an upward variance based on his criminal history; and
3. Appellate counsel failed to raise his ineffective assistance of trial counsel claims on appeal.

         On May 20, 2016, the government filed its response. Petitioner did not file a reply. The Court now finds the petition should be denied.

         II. Factual Background

         The following factual background is taken from the PSR and sentencing transcripts.

         In August 2010, Dr. Nicholas Padron was operating a clinic on Ross Avenue in Dallas, Texas, where he wrote illegitimate prescriptions to patients seeking hydrocodone in exchange for cash. Petitioner would bring in patients who would pay cash for visits and who, in return, would receive prescriptions for hydrocodone. Dr. Padron, who did not examine patients prior to issuing a prescription for hydrocodone, paid Petitioner a referral fee for each patient he brought in. Dr. Padron also wrote prescriptions for alprazolam, and promethazine with codeine, which is a cough syrup.

         Petitioner worked with other co-defendants to take patients to Dr. Padron's clinic and then take them to pharmacies to have the prescriptions filled. Petitioner and his co-defendants would then take the pills from the patients and illegally re-sell them.

         Petitioner and several others were indicted for conspiracy to distribute hydrocodone outside the scope of professional practice and without a legitimate ...


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