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United States v. Turner

United States District Court, S.D. Texas, Houston Division

April 4, 2019

United States of America
v.
Valnita Turner, R.N.

          MEMORANDUM OPINION AND ORDER

          Gray H. Miller Senior District Judge.

         Defendant Valnita Turner, represented by counsel, filed a motion to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255. (Docket Entry No. 298.) The Government filed a response, (Docket Entry No. 299), to which she filed a reply (Docket Entry No. 305).

         Having reviewed the section 2255 motion, the Government's response and Defendant's reply, the record, and the applicable law, the Court DENIES the motion for the reasons that follow.

         Background and Claims

         A jury found Defendant guilty of conspiring to commit health care fraud in violation of 18 U.S.C. § 1349 (Count 2), and four counts of substantive violations of the health care fraud statute, 18 U.S.C. § 1347 (Counts 5-8). The Court subsequently sentenced Defendant to 120 months' imprisonment on Count 2 and 31 months' imprisonment on Counts 5 through 8, to be served concurrently with each other but consecutively to Count 2, for a total prison term of 151 months, to be followed by three years of supervised release. The Court held Defendant jointly and severally liable with others named in the indictment for restitution in the amount of $3, 011, 899.09. Defendant's convictions and sentences were affirmed on appeal. United States v. Turner, Appeal No. 14-20399 (5th Cir. Aug. 6, 2015).

         As grounds for relief in the instant proceeding, Defendant claims that counsel was ineffective in the following particulars:

1. Failing to communicate or negotiate a plea offer and cooperation benefits;
2. Failing to review discovery and government evidence or discuss trial strategy prior to trial;
3. Failing to subject the Government's case to meaningful adversarial testing;
4. Failing to provide proper advice as to Defendant's right to testify;
5. Failing to challenge the sufficiency of the evidence as to Count Eight of the indictment;
6. Failing to have a forensic accountant conduct an analysis of the alleged losses; and
7. Failing to challenge the aggravating role enhancements.

         The Government argues that these claims are without merit and should be denied.

         Legal Standards

         Generally, there are four grounds upon which a defendant may move to vacate, set aside, or correct his sentence pursuant to section 2255: (1) the imposition of a sentence in violation of the Constitution or the laws of the United States; (2) a lack of jurisdiction of the district court that imposed the sentence; (3) the imposition of a sentence in excess of the maximum authorized by law; and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). Section 2255 is an extraordinary measure, and cannot be used for errors that are not constitutional or jurisdictional if those errors could have been raised on direct appeal. United States v. Stumpf, 900 F.2d 842, 845 (5th Cir. 1990). If the error is not of constitutional or jurisdictional magnitude, the movant must show the error could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. United States v. Smith, 32 F.3dl94, 196 (5th Cir. 1994).

         The pleadings of a pro se prisoner litigant are reviewed under a less stringent standard than those drafted by an attorney, and are provided a liberal construction. Haines v. Kerner, 404 U.S. 519 (1972). Nevertheless, a pro se litigant is still required to provide sufficient facts to support his claims, and "mere conclusory allegations on a critical issue are insufficient to raise a constitutional issue." United States v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993). Accordingly, "[a]bsent evidence in the record, a court cannot consider a habeas petitioner's bald assertion on a critical issue in his pro se petition ... to be of probative evidentiary value." Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983).

         Ineffective Assistance of Counsel

         The United States Supreme Court's decision in Strickland v. Washington provides the familiar two-pronged test for establishing a claim of ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious 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 ... resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. 668, 687 (1984). A court need not address both components of the inquiry if the defendant makes an insufficient showing on one. Carter v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997) ("Failure to prove either deficient performance or actual prejudice is fatal to an ineffective assistance claim.").

         A counsel's performance is strongly presumed to fall within the wide range of reasonable professional assistance. Premo v. Moore, 562 U.S. 115, 121 (2011). To overcome that presumption, a habeas petitioner must "show that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Id. at 121-22 (internal quotations omitted). The standard for judging counsel's representation is a deferential one. "The question is whether an attorney's representation amounted to incompetence under 'prevailing professional norms,' not whether it deviated from best practices or most common custom." Id.

         Defendant contends that counsel was ineffective in the following instances.

         Plea Offer and Cooperation Benefits

         Defendant argues that trial counsel was ineffective for failing to communicate or negotiate a plea offer and cooperation benefits. Specifically, she claims that counsel "wholly failed to address, on any legitimate basis, the possibility of her pleading guilty and seeking a plea agreement, or cooperating for a sentence less than ...


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