Hancock v. United States
| Decision Date | 15 August 2016 |
| Docket Number | No. 2:13-CV-252-JRG,No. 2:08-CR-75-JRG-DHI,2:08-CR-75-JRG-DHI,2:13-CV-252-JRG |
| Parties | JOHN THEODORE HANCOCK, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of Tennessee |
This matter is before the Court on the motion of John Theodore Hancock ("petitioner" or "Hancock") To Vacate, Set Aside Or Correct Sentence Under 28 U.S.C § 2255, [Doc. 146].1 The matter is ripe for review and the Court has determined that the files and records in the case conclusively establish that petitioner is not entitled to relief under § 2255 and, therefore, no evidentiary hearing is necessary. For the reasons which follow, petitioner's § 2255 motion lacks merit and will be DENIED.
On August 12, 2008 the federal grand jury returned a three-count indictment, [Doc. 3]] which charged petitioner, a medical doctor, with health care fraud in violation of 18 U.S.C. § 1347 (Count 1), unlawfully dispensing methadone, a Schedule II controlled substance in violation of 21 U.S.C. § 841 (Count 2), and unlawfully dispensing alprazolam, a Schedule IV controlled substance in violation of 18 U.S.C. § 841 (Count 3). A superseding indictment was returned on September 9, 2008, [Doc. 6]. The superseding indictment contained 112 counts.Counts 1, 2, 18, and 19 of the superseding indictment charged the petitioner with health care fraud resulting in the death of the patients named in those counts in violation of 18 U.S.C. §§ 1347 and 2. Counts 3-8, 10-17, 20-21, and 23-32 of the indictment charged the petitioner with health care fraud in violation of 18 U.S.C. §§ 1347 and 2. Counts 33 through 36 charged the petitioner with unlawfully dispensing controlled substances resulting in death in the use of such substances in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(C) and 18 U.S.C. § 2. Counts 37-42, 44-51, 64-68, 75-81 and 83-90 charged the petitioner with unlawfully dispensing controlled substances in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(C), 841(b)(1)(D) and 841(b)(2). Counts 50-63, 69-74, and 92-105 charged the petitioner with unlawfully dispensing controlled substances in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(C) or (b)(1)(D) or 841(b)(2). Counts 106 and 107 charged petitioner with money laundering in violation of 18 U.S.C. §§ 1957 and 2. Count 108 of the indictment charged petitioner with evasion of income tax during calendar years 1994 and 1995 in violation of 26 U.S.C. § 7203. Finally, Counts 109 through 112 charged petitioner with failure to file income tax returns for calendar years 2002, 2003, 2004 and 2005 in violation of 26 U.S.C. § 72032
After significant pretrial motion practice and several continuances, the case proceeded to trial on July 6, 2009, [Doc. 79]. At the conclusion of the nine day trial, Hancock was found guilty of Counts 1-8, 10-18, 20-21, 23-42, 44-51, 53-66, 68-70, 72-81, 83-87, 89-90, 92-95, and 97-112 and not guilty of Counts 19, 67, 71, 88 and 96, [Doc.92]. A PSR was prepared and Hancock was sentenced on July 30, 2009 to a term or imprisonment of 276 months as to Counts 1 and 2; 120 months as to Counts 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 106 and 107; 240 months as to Counts 33, 34, 35, 36, 37, 38, 39,40, 41, 42, 44, 45, 46, 47, 48, 49, 50, 51, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62 and 63; 60 months as to Counts 64, 65, 66, 68, 69, 70, 72, 73, 74 and 108; 36 months as to Counts 75, 76, 77, 78, 79, 80, 81, 83, 84, 85, 86, 87, 89, 90, 92, 93, 94, 95, 97, 98, 99, 100, 101, 102, 103, 104 and 105; and 12 months as to Counts 109, 110, 111 and 112 to run concurrently, for a net sentence of 276 months. Judgment was entered on August 19, 2010, [Doc. 121].
Hancock appealed his convictions and sentence to the Sixth Circuit Court of Appeals, [Doc. 122]. The Sixth Circuit affirmed the Court's judgment in full on March 9, 2012, [Doc. 139]. Hancock's petition for writ of certiorari to the United States Supreme Court was denied on October 2, 2012, [Doc. 142]. The instant motion to vacate was filed on October 4, 2013, [Doc. 146]. United States responded in opposition on November 3, 2014, [Doc. 149].
The facts in the case were succinctly stated by the Sixth Circuit:
Defendant operated a medical business known as "Hancock Family Medicine" in Mooresburg, Tennessee. Defendant prescribed controlled substances, including methadone, morphine, oxycodone (OxyContin), hydrocodone, and benzodiazepine, for patients without performing physical examinations and without determining whether the drugs were medically necessary. Most of the drugs were paid for through the TennCare program, Tennessee's program for indigent medical care. Several of defendant's patients died.
United States v. John Theodore Hancock, 473 Fed. App'x 424, at ** 1 (6th Cir. March 29, 2012).
This Court must vacate and set aside petitioner's sentence if it finds that "the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, . . ." 28 U.S.C. § 2255. Under Rule 4 of the Governing Rules, the Court is to consider initiallywhether the face of the motion itself, together with the annexed exhibits and prior proceedings in the case, reveal the movant is not entitled to relief. If it plainly appears the movant is not entitled to relief, the court may summarily dismiss the § 2255 motion under Rule 4.
When a defendant files a § 2255 motion, he must set forth facts which entitle him to relief. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961). "Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing." O'Malley, 285 F.2d at 735 (citations omitted). A motion that merely states general conclusions of law without substantiating allegations with facts is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th Cir. 1959); United States v. Johnson, 940 F. Supp. 167, 171 (W.D. Tenn. 1996).
To warrant relief under 28 U.S.C. § 2255 because of constitutional error, the error must be one of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted) (§ 2254 case); Clemmons v. Sowders, 34 F. 3d 352, 354 (6th Cir. 1994). See also United States v. Cappas, 29 F.3d 1187, 1193 (7th Cir. 1994) (). If the sentencing court lacked jurisdiction, then the conviction is void and must be set aside. Williams v. United States, 582 F. 2d 1039, 1041 (6th Cir.), cert. denied, 439 U.S. 988 (1978). To warrant relief for a non-constitutional error, petitioner must show a fundamental defect in the proceeding that resulted in a complete miscarriage of justice or an egregious error inconsistent with the rudimentary demands of fair procedure. Reed v. Farley, 512 U.S. 339, 354 (1994); Grant v. United States, 72 F. 3d 503, 506 (6th Cir.), cert. denied, 517 U.S. 1200 (1996). In order to obtain collateral relief under § 2255, a petitioner must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152 (1982).
A petitioner alleging ineffective assistance of counsel must satisfy a two-part test. Stickland v. Washington, 466 U.S. 668, 687 (1987). See also, Huff v. United States, 734 F.3d 600, 606 (6th Cir. 2013). First, the Petitioner must establish, by identifying specific acts or omissions, that counsel's performance was deficient and that counsel did not provide "reasonably effective assistance," as measured by "prevailing professional norms." Rompilla v. Beard, 545 U.S. 374, 380 (2005). Counsel is presumed to have provided effective assistance, and the Petitioner bears the burden of showing otherwise. Mason v. Mitchell, 320 F.3d 604, 616-17 (6th Cir. 2003); see also Strickland, 466 U.S. at 689 () (internal citation omitted).
Second, the Petitioner must demonstrate "a reasonable probability that, but for [counsel's acts or omissions], the result of the proceedings would have been different." Strickland, 466 U.S. at 694. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691; see also Smith v. Robbins, 528 U.S. 259, 285-86 (2000). The Court is not required to analyze both prongs of the Strickland test as to every claim. Strickland, 466 U.S. at 697. Indeed, the Supreme Court recommended that, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." Id.; accord United States v. Hynes, 467 F.3d 951, 970 (6th Cir. 2006).
Petitioner faults trial counsel for failing to "present any rebuttal witness to challenge the government's misleading statistical evidence,"3 and failing to use "a rebuttal forensics and toxicology expert from the University of Alabama due to lack of defense funds and the expert's unavailability during the summer months." [Doc. 146 at 25]. Petitioner also argues that, lacking the referenced expert, counsel should have "allow[ed] Dr. Hancock to offer rebuttal testimony regarding the same misleading statistics." [Id.]. He further asserts that the "Court can not decide, before reviewing...
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