United States District Court, N.D. Texas, Dallas Division
WALTER R. HUDSPETH, Petitioner,
UNITED STATES OF AMERICA, Respondent.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
D. STICKNEY UNITED STATES MAGISTRATE JUDGE.
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:
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).
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
3. Appellate counsel failed to raise his ineffective
assistance of trial counsel claims on appeal.
20, 2016, the government filed its response. Petitioner did
not file a reply. The Court now finds the petition should be
following factual background is taken from the PSR and
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.
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
and several others were indicted for conspiracy to distribute
hydrocodone outside the scope of professional practice and
without a legitimate ...