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Borrasi v. Sepanek

United States District Court, Sixth Circuit

May 24, 2013

ROLAND BORRASI, Petitioner,
v.
MICHAEL SEPANEK, Warden, Respondent.

MEMORANDUM OPINION AND ORDER

HENRY R. WILHOIT, Jr., District Judge.

Roland Borrasi is an inmate confined in the Federal Correctional Institution ("FCI") in Morgantown, West Virginia.[1] Proceeding without counsel, Borrasi has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his federal conviction and sentence. [D. E. No. 1]

The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F.Appx. 544, 545 (6th Cir. 2011). The Court must deny the petition "if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions under Rule 1(b)). The Court evaluates Borrasi's petition under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts Borrasi's factual allegations as true, and construes his legal claims in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

Having reviewed the habeas petition, the Court must deny it because Borrasi can not pursue his claims in a habeas corpus proceeding under § 2241.

BACKGROUND

On June 30, 2009, an Illinois federal jury convicted Borrasi, a medical doctor, of one count of conspiracy to defraud the United States government, in violation of 18 U.S.C. § 371, and six counts each of Medicare-related bribery, in violation of 42 U.S.C. § 1320a-7b et seq. United States v. Borrasi, No. 06-CR-916-2, (N.D. Ill. 2006) Borrasi received a 72-month prison term and a 2-year supervised release term, and was ordered to pay $497, 204 in restitution. On appeal, Borrasi's conviction and sentence were affirmed. United States v. Borrasi, 639 F.3d 774 (7th Cir. 2011)

In his appeal, Borrasi argued that the trial court erroneously interpreted and applied the Federal Rules of Evidence when it prevented him from introducing, during his defense, comments from the Rock Creek Psychiatric Hospital ("Rock Creek") committee meetings, despite the court's earlier decision to allow the government to introduce the minutes into evidence and use them for a different purpose. Borrasi, 639 F.3d at 778-80. Borrasi alleged that the reports met the business-records exception to the hearsay prohibition and that their exclusion was erroneous, prejudicial, and constituted grounds to reverse his conviction. Id.

The Seventh Circuit rejected those arguments, holding that any error in excluding the substantive descriptions in certain committee reports about medical services that Borrasi and his employees allegedly performed for hospital, which were contained in hospital committee meeting minutes, was harmless error, where, even if the evidence had been admitted, it was highly unlikely that it would have offset the overwhelming evidence that Borrasi and his employees were being paid for their referrals to the hospital instead of for their services. Id. at 780.

On June 17, 2011, Borrasi filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. United States v. Borrasi, No. 1:11-CV-04152 (N.D. Ill. 2011). Borrasi argued that his sentence should be vacated because the government violated Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), by failing to inform him that Mahmood Baig, a co-defendant and one of the government's witnesses, had a history of prescription drug abuse and mental health treatment. [D. E. No. 1, therein]

On April 13, 2012, the district court denied Borrasi's § 2255 motion, concluding that (1) Borrasi have waived his Brady claim by failing to raise it on direct appeal of his conviction and sentence; (2) the information concerning Baig was not material to Borrasi's defense; and (3) the government likely did not possess the information about Baig at the time it received Borrasi's pre-sentence investigation report. [D. E. No. 16, pp. 1-2, therein] The court declined to grant a certificate of appealability. [ Id., p. 2, therein]

In his § 2241 habeas petition, Borrasi contends that he is entitled to relief under § 2241 for the following reasons:

(1) that during his federal criminal proceeding, his trial counsel rendered ineffective legal assistance to him, [2] in violation of his right to effective assistance of counsel guaranteed by the Sixth Amendment of the U.S. Constitution;

(2) that the trial court improperly excluded exculpatory evidence consisting of the minutes of administrative meetings conducted at the Rock Creek, in violation of his right to due process of law guaranteed by the Fifth Amendment of the U.S. Constitution;

(3) that the government failed to disclose material information concerning co-defendant and government witness Mahmood Baig, in violation of his right to due process of law guaranteed ...


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