United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller Senior District Judge.
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).
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
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).
grounds for relief in the instant proceeding, Defendant
claims that counsel was ineffective in the following
1. Failing to communicate or negotiate a plea offer and
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
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.
Government argues that these claims are without merit and
should be denied.
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).
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).
Assistance of Counsel
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.").
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.
contends that counsel was ineffective in the following
Offer and Cooperation Benefits
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 ...