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Alston v. United States

December 16, 2008

MICHAEL ALSTON, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Tucker, J.

MEMORANDUM ORDER

Presently before this Court is Petitioner Michael Alston's Habeas Corpus Petition to Vacate/Set Aside/Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 69), and the Government's Memorandum in Opposition (Doc. 75). For the reasons below, this Court will deny Petitioner's Motion.

BACKGROUND

On June 14, 2005, Petitioner Michael Alston was charged in a fourteen count indictment with two counts of mail fraud, in violation of 18 U.S.C. § 1341, and twelve counts of health care fraud, in violation of 18 U.S.C. § 1347. The indictment alleged that Petitioner and his wife owned and operated physical therapy centers that billed insurance companies for medical treatments that were not provided. Specifically, eighteen insurance companies paid by mail a total of $1,761,285.54 for first party benefit claims, and bodily injury claims.

On January 9, 2006, Petitioner pled guilty to all counts in the indictment. There was no plea agreement with the government, and the parties agreed that the amount of loss would be litigated at the time of the sentencing. At the guilty plea hearing, the Court conducted a lengthy colloquy of Petitioner prior to accepting his plea. Petitioner affirmed that he had a sufficient opportunity to discuss his case with counsel and was satisfied with his counsel's representation. Petitioner also stated that he reviewed the charges set forth in the indictment and understood the elements of each offense. Petitioner further indicated that his guilty plea was not coerced, and he was not made any promises in exchange for his plea. Finding Petitioner fully capable and competent to enter into a plea, this Court accepted his guilty plea. Petitioner later filed a motion to withdraw his guilty plea.

The court conducted an evidentiary hearing on Petitioner's motion to withdraw his guilty plea on June 6, 2006. At the hearing, Petitioner asserted his innocence, witness credibility, and lack of understanding of the government's allegation that the fraud loss was in excess of $1,000,000.00 as the reasons behind his attempt to withdraw his plea. On June 7, 2006, this Court denied Petitioner's motion, finding that his assertion of innocence and reasons for seeking plea withdrawal lacked credibility. On June 8, 2006, this Court imposed a sentence of fifty-seven (57) months imprisonment, three (3) years of supervised release, $800,000.00 in restitution, and a $1,400.00 special assessment. This Court also found that Petitioner was a leader and organizer of the fraud scheme, and that he obstructed justice.

Petitioner timely appealed to the United States Court of Appeals for the Third Circuit, alleging the following: 1) this Court erred in imposing a two-level enhancement for obstruction of justice; 2) this Court erred in imposing a four-level enhancement for Petitioner's role as a leader and organizer; and 3) this Court erred in not properly considering the relevant § 3553(a) sentencing factors.

The Court of Appeals affirmed this Court's decision on September 21, 2007. Specifically, the Court of Appeals found that the evidence supported a sentencing guidelines offense level enhancement for Petitioner's role as a leader and organizer of the fraudulent scheme, that the Court made sufficient findings to support enhancement for obstruction of justice, and that the relevant § 3553(a) factors were adequately considered.

On April 21, 2008, Petitioner filed this pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255.

LEGAL STANDARD

28 U.S.C. § 2255 provides that a prisoner in custody under sentence of the Court, who believes that the sentence was imposed in violation of the constitution or laws of the United States, or is otherwise subject to collateral attack, may move the Court which imposed the sentence to vacate, set aside, or correct the sentence. Relief for a habeas corpus petition is proper where judgment was made without jurisdiction, the sentence is not authorized by law, or the prisoner's constitutional rights have been infringed upon.

DISCUSSION

In his § 2255 motion, Petitioner raises numerous claims. Among these claims are the following: 1) witnesses relied upon lacked credibility; 2) sentencing violated Booker v. United States, 543 U.S. 220 (2005), because unindicted conduct was used to enhance sentence in violation of Petitioner's constitutional rights; 3) the Government failed to establish the locus delecti of the crimes charged; 4) Petitioner's plea was coerced in violation of the Fifth and Sixth Amendments; 5) this Court lacked territorial jurisdiction; 6) this Court is not an Article III court and any sentence is void; 7) the judge is not independent; 8) Petitioner was denied effective assistance of counsel; 9) the Government concealed exculpatory evidence; 10) no verified complaint exists and the case was void from its inception; 11) no arrest warrant affidavit exists in violation of the Fourth Amendment; and 12) ex parte communications occurred.

This Court will deny Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. ยง 2255, as all of Petitioner's claims are without merit and fail to entitle him to relief. As a preliminary matter, two of Petitioner's claims fail because they cannot be relitigated. Specifically, Ground One, witness credibility, and Ground Two, the alleged Booker violation, were issues that were decided by this Court and that the Court of Appeals affirmed on direct review. Petitioner ...


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