MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant's objections to the magistrate judge's report and recommendation that his 28 U.S.C. § 2255 motion be denied without an evidentiary hearing. The Court granted Defendant's request for an evidentiary hearing limited to the issue of his trial counsel's effectiveness in advising Defendant about the government's plea offer. A hearing was held in August 2012. Defendant's request for an evidentiary hearing on the other two issues was denied. Applying the Strickland framework, the Court ultimately concludes that even assuming Defendant was provided deficient performance by his counsel, he simply cannot prove any prejudice. Therefore, Defendant's objections (DE 184) to the magistrate judge's report (DE 183) are sustained in part and overruled in part. Defendant's motion to vacate (DE 166) is DENIED.
Defendant, Ali Hadi Sawaf, filed a "motion for habeas corpus, pursuant
to 28 U.S.C. § 2255" alleging that the performance of his trial
counsel, Russell Alred, was constitutionally ineffective.*fn1
This case has a lengthy and complicated history. A full
summary of this case from
2001 to the present objections can be found in the Sixth Circuit
opinion United States v. Sawaf, 129 F. App'x 136, 138-41 (6th Cir.
2005), and need not be repeated in full.
On appeal, the Sixth Circuit affirmed Sawaf's conviction, the sentencing guidelines calculation, and the pill count. Id. at 141-142, 144-146. The case was remanded, however, for resentencing in the context of the advisory sentencing guideline scheme set forth in United States v. Booker, 543 U.S. 220 (2005). Id. at 143. On remand, the Court heard arguments as to the relevant 18 U.S.C. § 3553(a) factors, but determined that the same sentence of 20 years in prison was appropriate under the advisory scheme as it had been under the mandatory guideline scheme. Sawaf appealed again, and the Sixth Circuit remanded for a third sentencing because, at the second sentencing hearing, Sawaf was not afforded his right of allocution. (DE 127).
At his third sentencing, Sawaf was represented by "different" counsel, John P. Chappell. Again, the appropriate advisory guideline range was determined to be 235 months to 293 months. At the hearing, Sawaf made clear his belief that he had done nothing wrong. Sawaf said, "Your Honor, I have-I would say I prescribe a regimen for the good of my patients according to my judgment and ability. I never do harm to anyone." (DE 159 at 11). Sawaf believed that his "case has been a classical textbook for selective prosecution." (DE 159 at 11). Sawaf went on to state that "[s]even patients testified on my behalf, your Honor, including two patients from the government, that 'Dr. Sawaf gave us bona fide medical help.' The jury found three counts not guilty. That means I had good faith, I was entrapped." (DE 159 at 13).
During his allocution at the third sentencing hearing, Sawaf also discussed rejecting a plea offer from the government. Sawaf stated that his response to the offer was, "Give it to the jury, because I haven't done anything wrong." (DE 159 at 15). Sawaf said that "[h]ad I known that you would be punished severely to go to trial, I would have taken a different course. But I have to live with myself. I didn't do anything wrong." (DE 159 at 16 (emphasis added)). Sawaf concluded by stating that "I'm not a criminal. I don't try a criminal. I may speak with an accent, but I don't think with an accent. I want to tell the world and the Iraqi people that I serve the people. There's prejudice in Ali Sawaf case, and everybody say that, your Honor." (DE 159 at 19). Again, Sawaf was sentenced to 20 years in prison.
Sawaf appealed this third sentence and ultimately, the United States Supreme Court denied certiorari. (DE 165). Sawaf now has filed a motion to vacate that sentence under 28 U.S.C. § 2255 alleging that the performance of his counsel at trial and on his first two appeals, Russell Alred, was constitutionally ineffective in three ways. (DE 166). First, Sawaf argues that Alred failed to properly investigate and contest the Court's calculation of the pill count, used to determine his adjusted offense level. Second, Sawaf claims that Alred failed to properly consult and advise him about a plea offer from the government by not explaining the relevance and impact of the Sentencing Guidelines. Third, Sawaf contends that Alred failed to investigate and call as witnesses medical doctors who could opine about Sawaf's reputation within the medical community.
The magistrate judge recommended all three of Sawaf's claims be denied without an evidentiary hearing. (DE 183). Sawaf objected to each of the magistrate judge's recommendations and argued that he was entitled to an evidentiary hearing on all issues. (DE 184). A prisoner who files a § 2255 motion challenging a federal conviction is entitled to "a prompt hearing" at which the district court is to "determine the issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. § 2255. The Court granted Sawaf's request for an evidentiary hearing but confined the scope of the hearing to Sawaf's claim that before his trial, Alred failed to fully advise him of the probable punishment under the Sentencing Guidelines which were at that time mandatory. (DE 191; DE 206). The ineffective assistance of counsel claims not at issue in the evidentiary hearing will be addressed first, followed by a discussion of the claim regarding the plea offer.
A petitioner seeking relief under § 2255 "must allege as a basis for relief: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." Mallett v. United States, 334 F.3d 491, 497 (6th Cir. 2003). Here, Sawaf's allegations fall into the first category because he claims that his constitutional right to effective assistance of counsel was violated. Sawaf must prove these allegations by a preponderance of the evidence. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). To prevail on an ineffective assistance of counsel claim, the defendant must meet the two-pronged Strickland v. Washington test. 466 U.S. 668 (1984). See also Mallett, 334 F.3d at 497 (applying Strickland in context of § 2255 motion). First, the defendant must show that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Second, the deficient performance must have prejudiced the defendant. Id. at 687.
A.Failure to Contest the 'Pill Count'
Sawaf argues that his counsel was ineffective because "he failed to properly investigate or contest the 'pill count' of 87,760 set forth in the PSR [presentence investigation report]." (DE 166 at 5). Sawaf was convicted of eight drug-related counts. Count 1, the "umbrella count," charged Sawaf "with knowingly distributing Schedule II, III, and IV controlled substances by writing or approving prescriptions that were not in the usual course of his particular practice. The remaining seven counts involved particular prescriptions issued by Defendant to law enforcement officers working in an undercover capacity." Sawaf, 129 F. App'x at 138. Sawaf argued at trial, at sentencing, and on appeal that the pill count should have been limited to the number of pills charged in the indictment, without consideration of the relevant conduct considered in Count 1. Id. at 144-45. The Sixth Circuit rejected this argument as "unpersuasive in light of the trial testimony from pharmacists who filled Defendant's prescriptions and the detailed application of the sentencing guidelines by the probation officer for each of the counts for which Defendant was convicted." Id.; see also 21 U.S.C. § 841(b)(1)(C) (providing maximum penalties for illegal distribution or dispensation of schedule II, III, and IV controlled substances without regard to the quantity of drugs involved).
The sentencing court must consider all conduct that is part of the "same course of behavior"-which the Guidelines define as "Relevant Conduct." Setser v. United States, 132 S.Ct. 1463, 1475 (2012). The Guidelines command that "the base offense level" shall include "all acts and omissions committed . . . by the defendant" U.S.S.G. § 1B1.3(a) (2001). Sawaf was convicted of Count 1 which charged him with knowingly distributing Schedule II, III, and IV controlled substances by writing or approving prescriptions that were not in the usual course of his particular practice. This count was not limited to specific prescriptions, so all prescriptions not written for a medical purpose constituted relevant conduct.
The initial PSR concluded that Sawaf wrote prescriptions without a legitimate medical purpose for 87,760 pills/tablets of Schedule II and III controlled substances. These prescriptions were obtained by Sawaf's patients at pharmacies in Kentucky, Tennessee, and Virginia. (DE 88, PSR maintained under seal, at 9). The original PSR based this conclusion on the documentation of prescription medication provided by the United States Attorney, the testimony from pharmacists at trial, and testimony at trial of experts who stated that none of Sawaf's prescriptions for controlled substances had a medical basis. (Id. at 9-10). Alred timely filed objections to the PSR's pill count calculation. Before sentencing, the probation officer reviewed Alred's objections and revised the PSR favorably to Sawaf. The probation officer clarified that the pill count was based on "pharmacy printouts which were submitted into evidence" at trial. The Court rejected Sawaf's argument that only the number of pills listed in the indictment should be counted. After announcing that the total offense level was 36, the Court asked if there was any objection to the Guidelines calculation, and the following exchange took place:
Mr. West: Not from the United States, your honor.
Mr. Alred: Your Honor, we just renew our objection that none of the pills should be a counted ---
The Court: Your objection is noted for the Record.
The Court: Based on the pill count cited by the Court, do you object to this calculation based on the Court's pill count being utilized?
Mr. Alred: No, your Honor. (DE 107 at 14).
Sawaf now claims that Alred "failed to properly investigate or contest the 'pill count'" at sentencing. (DE 166). Specifically, Sawaf argues that Alred should have forced the government to present evidence that every prescription was written without a medical purpose and hired an expert witness to investigate each prescription to contest the government's evidence. The magistrate judge rejected this argument because Alred's strategic decision to contest the pill count in one way, but not in the ...