Rosin v. United States, No. 14–10175.

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: WILSON, Circuit Judge
• Citation: 786 F.3d 873
• Parties: Michael A. ROSIN, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Docket Number: No. 14–10175.
• Decision Date: 14 May 2015

786 F.3d 873

Michael A. ROSIN, Petitioner–Appellant
v.
UNITED STATES of America, Respondent–Appellee.

No. 14–10175.

United States Court of Appeals, Eleventh Circuit.

May 14, 2015.

786 F.3d 874

Joel Hirschhorn, Brian Harris Bieber, GrayRobinson, PA, Jake Matthew Greenberg, Miami, FL, Keith A. Pierro, Gold & Gold, PA, Boca Raton, FL, for Petitioner–Appellant.

Yvette Rhodes, Arthur Lee Bentley, III, U.S. Attorney's Office, Tampa, FL, Katherine M. Ho, U.S. Attorney's Office, Orlando, FL, for Respondent–Appellee.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket Nos. 8:09–cv–01158–SCB–MAP; 8:05–cr–00143–T–24–MAP.

Before WILSON and ANDERSON, Circuit Judges, and VOORHEES,^* District Judge.

Opinion

WILSON, Circuit Judge:

Michael Rosin is a federal prisoner currently serving a 264–month term of imprisonment. He was convicted of thirty-five counts of health care fraud in violation of 18 U.S.C. §§ 1347 and 2, and thirty-five counts of making false statements related to health care matters in violation of 18 U.S.C. §§ 1035 and 2. Rosin appeals the district court's denial of his motion to vacate his conviction pursuant to 28 U.S.C. § 2255. Rosin contends that his trial counsel rendered ineffective assistance by grossly underestimating the sentence that he could receive if he were convicted at trial and by failing to pursue a plea bargain. The district court denied Rosin's § 2255 motion without affording him an evidentiary hearing. We must determine

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whether doing so was an abuse of its discretion.

I.

Rosin, a former dermatologist, owned a dermatology clinic and laboratory in Sarasota, Florida. In 2004, Rosin's long-time office manager filed a qui tam action alleging that Rosin had committed Medicare fraud by performing hundreds of unnecessary Mohs surgeries on his elderly patients.¹ These allegations led to an investigation of Rosin's medical practice and, eventually, to the filing of criminal charges against him. Rosin pleaded not guilty.

Rosin was tried in 2006 over a span of seventeen days. At trial, Rosin was represented by Theresa Van Vliet, Patsy Zimmerman–Keenan, and Gregory Kehoe. Many of Rosin's former employees testified against him at trial, and Rosin testified in his own defense. While on the stand, Rosin challenged the credibility of his former employees, claiming that they were biased because they stood to gain financially in exchange for their testimony and that they had set him up. After deliberating for one-and-one-half days, the jury convicted Rosin on all seventy counts charged in the indictment.

At Rosin's sentencing hearing, the district court calculated an offense level of thirty-eight and assigned a criminal history category of I. His calculated Sentencing Guidelines range was approximately nineteen to twenty-four years' imprisonment. He was given an opportunity to make a statement before the imposition of his sentence, during which he never accepted personal responsibility for the crimes for which he had been convicted. The judge then sentenced him to a twenty-two-year term of imprisonment. Rosin subsequently challenged his conviction and sentence on direct appeal, but we affirmed. See United States v. Rosin, 263 Fed.Appx. 16 (11th Cir.2008) (per curiam).

In 2009, Rosin timely filed the present § 2255 motion alleging that his trial counsel was ineffective for grossly underestimating the prison sentence that he would receive if he was convicted at trial and for failing to pursue a plea bargain. He also requested that the district court hold an evidentiary hearing. In support of his § 2255 motion, Rosin executed and submitted his own affidavit to the court. The government opposed Rosin's § 2255 motion, arguing that he was not entitled to an evidentiary hearing on any of his claims because the record established that they lacked merit. In support, the government submitted affidavits executed by Rosin's trial counsel. After consideration of the parties' arguments and the record evidence, the district court denied Rosin's § 2255 motion without affording him an evidentiary hearing. It concluded that Rosin failed to adequately allege that he suffered prejudice as a result of his trial counsels' alleged ineffective assistance. Rosin appealed the district court's order.

We previously considered Rosin's § 2255 challenge in Rosin v. United States, 522 Fed.Appx. 578 (11th Cir.2013) (per curiam), but we concluded that the district court erred when it applied the wrong legal standard to Rosin's contentions. In denying Rosin's § 2255 motion, the district court erroneously applied a “clear and convincing evidence” standard, rather than the required “reasonable probability” standard, in evaluating the prejudice prong of the two-part analysis for claims of ineffective assistance of counsel under Strickland

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v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Consequently, we vacated the district court's order and remanded the matter with instructions that it apply the appropriate legal standard under Strickland and determine whether Rosin was entitled to an evidentiary hearing. See Rosin, 522 Fed.Appx. at 579. On remand, and having applied the correct legal standard, the district court again denied Rosin's § 2255 motion without granting his request for an evidentiary hearing. It concluded that Rosin failed to adequately allege that he suffered prejudice as a result of his trial counsels' alleged ineffective assistance. This appeal ensued.

II.

As mentioned above, both parties submitted affidavits in support of their respective arguments. Rosin attests in his affidavit that he asked Van Vliet if five to six years of imprisonment was a reasonable estimation of his potential prison sentence, to which Van Vliet replied, “That's about right.” Rosin claims that Van Vliet never told him that the court could potentially impose a twenty-two-year term of imprisonment, nor did she discuss the possibility of a plea bargain, its advantages or disadvantages, or whether it was in his best interest to seek one. Rosin asserts that “had [he] known [his] sentence could have been enhanced to 22 years[,] [he] would have insisted Theresa Van Vliet seek a plea bargain on [his] behalf or [he would] get a new attorney who would.”

However, Van Vliet's affidavit states that she gave Rosin a general assessment of a potential sentence if he were convicted as charged in the indictment, including the statutory maximum penalty for Medicare fraud, possible enhancements for conduct such as an abuse of position of trust, and informed him that his total sentencing exposure was the statutory maximum sentence for each charge in the indictment. Van Vliet contends that Rosin adamantly professed his innocence during her entire representation of him.

According to Van Vliet, she never once believed that there was a possibility that Rosin would consider a plea bargain because Rosin, as she puts it, “shut down any discussion of such a course of action.” Because Rosin was unwilling to consider a genuine assessment of his case, Van Vliet avers she conducted a mock jury trial to persuade Rosin to consider a plea bargain in the event the mock trial produced unfavorable results. According to Van...