McCutcheon v. United States of America

Filing 10

MEMORANDUM OPINION. Signed by Senior Judge Inge P Johnson on 8/25/2014. (PSM)

FILED
2014 Aug-25 PM 03:10
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
DIANA K. MCCUTCHEON,

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Petitioner,
v.

UNITED STATES OF AMERICA,
Respondent.

CV: 14-8017-IPJ
CR: 12-183-IPJ

MEMORANDUM OPINION
Petitioner Diana K. McCutcheon moves the court to vacate, set aside, or
correct her sentence pursuant to 28 U.S.C. § 2255 and for an evidentiary hearing
on the claims in her motion (doc. 1). Despite giving the court every assurance that
she did in fact understand the charges against her, agree with the facts as
recounted in the plea agreement, enter her guilty plea knowingly and voluntarily,
as well as assuring the court that her attorney was “excellent,” Dr. McCutcheon
now claims that due to ineffective assistance of counsel, she pleaded guilty neither
knowingly nor voluntarily. The court, however, remains persuaded by the
numerous uncoerced admissions Dr. McCutcheon made during the plea hearing,
and, therefore, finds that her § 2255 motion is due to be denied.
1

STATEMENT OF FACTS1
Diane McCutcheon pleaded guilty to health care fraud and wire fraud
arising out of her internal medicine and laser surgery practices. At the time of her
indictment, McCutcheon was a physician who owned and operated three clinics:
Elgin Quickmed Clinic, Lexington Clinic, and Lexington Cosmetic Laser Surgery,
which was housed in the same building as Elgin Clinic. Plea Agreement p. 3 (crim.
doc. 32). Enrolled as a health case service provider to Blue Cross Blue Shield of
Alabama (BCBS) and Medicare, McCutcheon submitted claims for her services to
BCBS and Medicare using numerical codes (“CPT codes”). Id. at 4. McCutcheon
contracted with Medical Management Associates of Florence Alabama to perform
her billing services. Id. In 2010, BCBS noticed that McCutcheon was billing an
unusually high number of treatments under the CPT code 17004, which
corresponded to a procedure for the destruction of 15 or more skin lesions at one
time. Id. Upon receiving BCBS’s tip-off, the FBI began investigating
McCutcheon, which produced the following evidence: In 2007, McCutcheon
ranked 14,273% higher in reimbursements for 17004 procedures than her
counterparts and her cost for the procedure was $53.44 per patient when the

1

These facts are taken from the Plea Agreement, and McCutcheon stipulated that they are
substantially correct. Plea Agreement p. 7 (crim. doc. 32).
2

average physician’s cost was $0.18 per patient. Id. at 5. In 2008, McCutcheon
ranked 22,970% higher than her peers in 17004 reimbursements and had an
average cost per patient of $88.68 compared to peers’ average costs of $0.20 per
patient. Id. In 2009, McCutcheon ranked 18,564% higher than her peers in 17004
reimbursements and had an average cost per patient for the procedure of $66.97
compared to peers’ average cost per patient of $0.26. Id. And in 2010,
McCutcheon ranked 18,648% higher than her peers in 17004 reimbursements and
had an average cost per patient of $195.39 compared to peers’ average costs per
patient of $0.70. Id. at 5. In 2007, 2008, and 2009, 17004 procedures were
McCutcheon’s second-most billed procedure and 17004 procedures were her most
commonly billed procedure in 2010 and 2011. Id. at 5–6.
In 2008, McCutcheon’s 17004 bills constituted 70% of the total amount
billed to Medicare for 17004 procedures by internal medicine physicians in the
state of Alabama. Id. at 6. In 2009, McCutcheon accounted for 90% of those billed
procedures and in 2010, 95%. Id. While 17004 procedures constituted only 1.29%
of her peers’ billings, they constituted 25% of McCutcheon’s Medicare billings.
Id. Upon interviewing McCutcheon’s patients, the Government learned that while
“[a] nurse practitioner or the defendant did spray some liquid nitrogen on the
patients’ skin when they were in for laser treatments,” this procedure did not
3

constitute a 17004 procedure, under which the defendant billed for the removal of
30 or more skin lesions through cryosurgery. Id.
In response to a 2010 audit by BCBS, McCutcheon hired a private
consultant who reviewed McCutcheon’s medical records and concluded that she
had engaged in overbilling 17004 procedures and should reimburse BCBS. Id. A
dermatologist retained as an expert also reviewed McCutcheon’s records and
determined that had the 17004 procedure been performed as often as claimed in
the records, the patients would have sustained serious harm because it takes at
least three weeks for patients to heal from cryosurgery. Id. at 7. McCutcheon’s
records indicated, however, that she performed 17004 procedures a week or two
apart and on consecutive days in one case. Id.
McCutcheon pleaded guilty to Health Care Fraud in violation of 18 U.S.C. §
1347 (Counts 4, 5, 64 & 65) and Wire Fraud in violation of 18 U.S.C. § 1343
(Counts 31 & 86). Judgement p. 1 (crim. doc. 45). On April 23, 2013, the court
entered judgment against McCutcheon, from which she did not appeal. Id. The
court sentenced McCutcheon to a term of twelve months and one day
imprisonment followed by three years of supervised release. Id. at 2–3.
McCutcheon filed the instant § 2255 motion on April 14, 2014 (doc. 1). The court
ordered the government to show cause as to why McCutcheon’s motion should not
4

be granted (doc. 2), and the Government timely responded (doc. 9). McCutcheon’s
§ 2255 motion is timely. Although McCutcheon has been released from prison
since she filed her § 2255 motion, she remains in federal custody due to her term
of supervised release. See United States v. Brown, 117 F.3d 471, 475 (11th Cir.
1997) (“Supervised release carries with it the possibility of revocation and
additional jail time. Therefore, we conclude, that as a person serving a term of
supervised release, Brown was ‘in custody’ within the meaning of § 2255 when he
filed his petition in the district court.”). Having considered Dr. McCutcheon’s
motion and the government’s response, the court finds that McCutcheon’s motion
is due to be denied for the reasons discussed below.
DISCUSSION
Despite all indications to the contrary, Dr. McCutcheon now claims that her
attorney rendered ineffective assistance and that as a result, McCutcheon
understood neither what she was pleading guilty to nor the consequences of
entering a guilty plea. It is well-settled that “representations of the defendant, his
lawyer, and the prosecutor at a [plea hearing], as well as any findings made by the
judge accepting the plea, constitute a formidable barrier in any subsequent
collateral proceedings. Solemn declarations in open court carry a strong
presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 73–74 (1977) (citation
5

omitted). See also United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994)
(“There is a strong presumption that the statements made during the colloquy are
true”). Additionally, where “the record refutes the applicant’s factual allegations
or otherwise precludes habeas relief, a district court is not required to hold an
evidentiary hearing.” Schiriro v. Landrigan, 550 U.S. 465, 474 (2007).
I.

Ineffective Assistance of Counsel
To establish an ineffective counsel claim, a defendant must show that the

lawyer’s performance was so objectively unreasonable as to be deficient and that
the deficiency prejudiced the client. Strickland v. Washington, 466 U.S. 668, 687
(1984). The test for deficient performance by counsel is an objective one. Id. at
688. Moreover, “[j]udicial scrutiny of counsel’s performance must be highly
deferential” and “a court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Id. at 689. A
petitioner establishes prejudice by showing that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Boyd v. Allen, 592 F.3d 1274, 1293 (11th Cir. 2010)
(quotation marks and citation omitted). In the case of guilty pleas, “to satisfy the
‘prejudice’ requirement, the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and
6

would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). If
a petitioner cannot satisfy both the deficiency and prejudice prongs, the court must
deny the requested relief. Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir.
2004).
Specifically, McCutcheon argues that her counsel rendered ineffective
assistance by “failing to investigate material aspects of the charges and applicable
defenses in advising [her] to plead guilty,” failing to adequately prepare for the
plea negotiation, “inducing [McCutcheon] to plead guilty with a promise of a
sentence of probation,” and “inducing [her] to plead guilty with threats of a
draconian sentence.” § 2255 Motion pp. 5, 13, 16, 17 (doc. 1). As an initial matter,
despite Dr. McCutcheon’s current allegations of her counsel’s deficiencies, at the
plea hearing she expressed that she had no problems with her counsel’s handling
of her case. McCutcheon even went so far as to praise her lawyer’s performance:
THE COURT: Okay. Did you read through these documents with Mr.
Tuten before you signed them?
THE DEFENDANT: Yes, ma’am.
THE COURT: Did you have sufficient time to talk to him about
anything and everything that was in those documents?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. Have you had enough time to talk to Mr. Tuten
7

about the facts of this case?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Have you had enough time to talk to him about your
constitutional rights?
THE DEFENDANT: Yes, Your Honor.
THE COURT: . . . [A]re you satisfied with the services he has provided
you as your lawyer in this case?
THE DEFENDANT: Yes, Your Honor.
...
THE COURT: Okay. One of the waivers includes a waiver of a right to
file a motion pursuant to 28 U.S.C. Code, Section 2255.
So basically, this is your last chance to tell me if you have any
complaints about anything Mr. Tuten has done or not done in connection
with being your lawyer in this case.
THE DEFENDANT: No. He’s been an excellent lawyer.
Plea Hearing Transcript pp. 5–6, 7 (crim. doc. 49) (emphasis added). But, more
importantly, even were the court to accept McCutcheon’s factual allegations as
true, McCutcheon’s ineffective assistance of counsel claims fail because she
cannot establish that she has been prejudiced by any of her attorney’s alleged
deficiencies. In other words, McCutcheon cannot establish that but for her
attorney’s alleged deficiencies, she would not have pleaded guilty and would have
insisted on going to trial.

8

A.

Counsel’s Failure to Properly Negotiate Plea or Investigate
Material Aspects of Charges

McCutcheon’s extensive factual recitations in support of this claim, § 2255
Motion pp. 5–12 (doc. 1), are squarely refuted by her own representations at the
plea and sentencing hearings.2 For example, McCutcheon claims that “[d]efense
counsel rendered ineffective assistance in advising Movant to plead guilty when
the overwhelming evidence indicating [sic] that there was no knowing and
intentional criminal intent on the part of Movant, but rather a staggering number
of billing discrepancies.” § 2255 motion p. 8 (doc. 1). Yet the court explicitly
informed McCutcheon that she was charged with knowing and willful violations,
not mistaken error, and McCutcheon voiced no objections:
THE COURT: And with respect to the charge of wire fraud – wire fraud.
The Government would have to prove that on or about the times and
places set out in the indictment, Counts Number 31 and 86, that you
knowingly devised or participated in a scheme to defraud or to obtain
money or property by using false pretenses, representations, or promises.
I’m just telling you right now knowingly means not as a result of

2

The court also agrees with respondent’s assertion that petitioner’s factual allegations are
conclusory in that they are supported by nothing other than petitioner’s own averments and
petitioner’s claims therefore do not warrant an evidentiary hearing. See Lynn v. United States,
365 F.3d 1225, 1238–39 (11th Cir. 2004) (finding no evidentiary hearing necessary where
affidavits submitted by petitioner amounted to mere conclusory allegations); see also Tejada v.
Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (“A petitioner is not entitled to an evidentiary
hearing, however, when his claims are merely conclusory allegations unsupported by specifics or
contentions that in the face of the record are wholly incredible.”) (emphasis in original)
(quotation marks and citation omitted).
9

mistake.
The Government would further have to prove that the false
pretenses, representations, or promises were about a material fact.
The Government would have to prove that you acted with the
intent; that is, purpose, to defraud; and fourthly, the Government would
have to prove that you transmitted or caused to be transmitted by wire
some communication in interstate commerce to help carry out a scheme
to defraud.
With respect to healthcare fraud, which is what is charged in
Count 4, 5, 64, and 65, the Government would have to prove that on our
about the time and place specified in the indictment in these counts that
you knowingly – and again, that means not as a result of mistake –
executed or attempted to execute a scheme or artifice to defraud a
healthcare benefit program by means of false and fraudulent pretenses,
representations, or promises.
And I want to say something here. We’re talking about both
Medicare and Blue Cross Blue Shield.
The Government would have to further show that these false or
fraudulent pretenses, representations, or promises related to a material
fact.
The Government would have to show that you acted willfully and
intended to defraud. And willfully is really just another word to say
intentionally or purposefully. That was your purpose, to defraud. That’s
what the Government would have to show. And that you did so in
connection with a delivery of or payment for healthcare benefits, items,
or services.
Do you understand that’s what the Government would have to
prove beyond a reasonable doubt?
THE DEFENDANT: Yes, Your Honor.
10

Plea Hearing Transcripts pp. 16–17 (crim. doc. 49) (emphasis added).
McCutcheon also asserts that “[h]ad defense counsel done the most superficial
investigation, he would have learned that the reason Movant was red-flagged was
due to Medical Management Associates’ billing errors and not to allegedly
fraudulent billing practices by Movant (which the overwhelming weigh of
evidence did not support).” § 2255 Motion p. 10 (doc. 1). Yet the court asked
McCutcheon whether the facts recounted in the Plea Agreement, which detailed all
of the government’s evidence asserting McCutcheon’s billing fraud, were
substantially correct. And McCutcheon responded that those facts detailing her
fraudulent billing practices were, in fact, substantially correct:
THE COURT: Okay. Now, I’m going to ask you a couple of things
about the plea agreement. Okay?
Do you see the factual basis for the plea that begins on Page 3 and
goes on to Page 4, goes on to Page 5, goes on to Page 6, and ends on
Page 7?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. Do you see that on Page 7, you have stipulated that
the facts stated in the factual basis for the complaint are substantially
correct, and you have stipulated that the Court can use these facts in
calculating the defendant’s sentence?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. Has it been explained to you and do you
11

understand that that means that the Court can take all those facts in
consideration without additional proof at the sentencing?
THE DEFENDANT: Yes, Your Honor.
...
THE COURT: And is what is stated in the factual basis of the plea or for
the plea in the plea agreement, is that correct as to what you did?
THE DEFENDANT: Yes, Your Honor.
Plea Hearing Transcript pp. 20–21, 24 (crim. doc. 49). More importantly, at the
sentencing hearing, Dr. McCutcheon informed the court that she took full
responsibility for all of her offices’ billing violations. Specifically, McCutcheon
admitted that she was “going to take the blame for everything in [her] office,” that
“there’s no one to blame except for [her],” that she’s “the person that made the
mistake,” that she “failed terribly in the running of her business” and that she
“owe[d] the Government a lot of money.” Sentencing Hearing Transcript pp. 7–8
(crim. doc. 50). Although Dr. McCutcheon claims that “[t]he result of defense
counsel’s incompetent advice was that Movant misapprehended the critical
elements of the charged offenses . . . .” § 2255 Motion p. 12 (doc. 1), this court
informed McCutcheon of the material aspects of the charges against her and
McCutcheon stated that she understood those charges. See Plea Hearing Transcript
pp. 16–17 (crim. doc. 49).

12

Dr. McCutcheon also conveyed that she understood the consequences of
foregoing a trial and had no objections or questions.
THE COURT: Okay. Okay. Let me just go back to the certification of
rights form. Do you understand that when charges are made against you
in an indictment such as this that you have a right to plea not guilty?
THE DEFENDANT: Yes, Your Honor.
...
THE COURT: And that you have a right to plea guilty, which is what
you’re in the process of doing?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And do you understand that if you ple[a]d not guilty,
you would have a right to a speedy and a public trial by a jury where a
jury would come in and determine whether or not the Government has
met its burden of proof to prove you guilty of the charges beyond a
reasonable doubt?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And you would have a right to face all witnesses and
accusers who testify against you and have them cross-examined by
your lawyer while they testify under oath?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And you would have a right to use the Court’s
subpoena powers to subpoena witnesses to come in and give evidence
in your favor and to bring into court such other evidence in your favor
as you may have and choose?
THE DEFENDANT: Yes, Your Honor.

13

THE COURT: And at such a trial, you would have a right to testify in
your own behalf. But if you chose not to testify, you could not be
forced to testify by anyone?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. And you would have a right to require that the
Government prove your guilt beyond a reasonable doubt before you
could be adjudged guilty?
THE DEFENDANT: Yes, Your Honor.
Plea Hearing Transcript pp. 14–16 (crim. doc. 49).
Relying on McCutcheon’s representations at the plea and sentencing
hearings, the court finds that there is no reasonable probability that absent
McCutcheon’s counsel’s alleged deficiencies in negotiating the plea agreement
and investigating material aspects of the charges, Dr. McCutcheon would not have
entered the Plea Agreement or guilty plea. Accordingly, the court finds that
McCutcheon has failed to establish that she was prejudiced by counsel’s alleged
deficiencies.
B.

Counsel’s Failure to Adequately Prepare for Plea Negotiations3

At the outset, the court notes that the facts that McCutcheon claims her
counsel failed to uncover were in fact uncovered and presented to the court. For

3

McCutcheon’s claim here overlaps with her previous claim, but the court will address it
separately in the interest of clarity.
14

instance, despite arguing in her § 2255 Motion that her counsel was ineffective for
failing to uncover the information that McCutcheon “would often pray with
troubled patients,” § 2255 Motion p. 13 (doc. 1), McCutcheon told the court
herself at the sentencing hearing that she prays with her patients. Sentencing
Hearing Transcript p. 9 (crim. doc. 50). Similarly, Carole Medley, a Lauderdale
County district judge, and Keith Medley, an attorney, also testified at the
sentencing hearing that McCutcheon cares greatly for her patients, was a thorough
doctor, and volunteered abroad, facts that McCutcheon claims her counsel failed
to unearth. Id. at 11–15. Other than the facts concerning her good character, which
were largely presented to the court at the sentencing hearing, the remaining facts
that McCutcheon alleges are conclusory and/or unequivocally refuted by her
representations at the plea and sentencing hearings. See supra Part I.A.
More importantly, McCutcheon cannot establish that she was prejudiced by
her attorney’s failure to adequately prepare for the plea negotiation. For example,
McCutcheon argues that her defense counsel never showed her the evidence that
the government had against her. § 2255 Motion p. 15 (doc. 1). Yet the court asked
Dr. McCutcheon if the facts as recounted in the Plea Agreement, which detailed
the government’s evidence against McCutcheon, were substantially correct and
she stated that they were. Plea Hearing Transcript pp. 20–21, 24 (crim. doc. 49).
15

Additionally, at the plea hearing, this court informed McCutcheon of the charges
against her, what the government would have to prove, and the consequences of
foregoing a trial. Plea Hearing Transcript pp. 16–17 (crim. doc. 49). If
McCutcheon had concerns about how her attorney prepared for the plea
negotiations, any of the aspects of the charges against her, or the consequences of
pleading guilty, McCutcheon had numerous opportunities at the plea hearing to
voice those objections or concerns to the court. Instead, McCutcheon stated that
her lawyer had been excellent and she voiced no objections or questions about the
Plea Agreement, the facts recounted therein, the guilty plea, or the consequences
of pleading guilty.
The court is equally unpersuaded by McCutcheon’s claim that she did not
understand her Guilty Plea Advice of Rights Certification because her lawyer
failed to explain to her, as a layperson, the import of the form and the consequence
of her signing it. See § 2255 Motion p. 15 (doc. 1). At the time of the Plea
Hearing, Dr. McCutcheon was a fifty-five year old physician. Plea Hearing
Transcript p. 5 (crim. doc. 49). Letters to the court in support of Dr. McCutcheon
also indicated that she was a skilled and thoughtful physician. Sentencing Hearing
Transcript pp. 21–22 (crim. doc. 50). Yet McCutcheon contends that she did not
understand the Advice of Rights Certification which contained such basic
16

statements as “I have had enough time to discuss the case with my attorney and to
discuss the facts of my case and my constitutional rights. I am satisfied with the
services of my attorney and I have no complaints as to the way he/she has handled
my case.” Guilty Plea Advice of Rights Certification p. 1 (crim. doc. 31). The form
also plainly stated “I understand that the Court must be satisfied that I am pleading
guilty freely, voluntarily and of my own free will. I understand that I have a duty
to inform the Court if, at any time during this proceeding, I do not understand
something that is said or done.” Id. at 2. These statements comprised no grandiose
legal terms or concepts, and the claim that a person of Dr. McCutcheon’s
education level and work experience would not be able to understand such
affirmations is, quite simply, absurd.4 Importantly, the Advice of Rights form also
stated in capital letters right above McCutcheon’s signature: “I HAVE READ
THE ABOVE OR IT WAS READ TO ME AND I UNDERSTAND IT. I DO NOT
HAVE ANY QUESTIONS ABOUT ANY OF MY RIGHTS AS STATED
ABOVE. I AM NOT UNDER THE INFLUENCE OF DRUGS, ALCOHOL OR
MEDICINE. MY SIGNATURE APPEARS BELOW.” Id. at 5. Accordingly, the
court finds that there is no reasonable probability that absent McCutcheon’s

4

The court finds Dr. McCutcheon’s proposition that she did not understand the Guilty
Plea Advice of Rights Certification even more preposterous considering that McCutcheon filed
such an intricate and verbose § 2255 Motion pro se.
17

attorney’s alleged failure to adequately prepare for the plea negotiations,
McCutcheon would not have entered the guilty plea.
C.

Counsel’s Promise of a Sentence of Probation

Further, McCutcheon cannot establish prejudice stemming from her
attorney’s alleged promise of a sentence of probation. Once more, the court finds
that McCutcheon’s “supporting facts” are conclusory allegations and/or are wholly
refuted by her representations at the plea and sentencing hearings. See supra Part
I.A. Additionally, at the plea hearing, the court informed Dr. McCutcheon of the
potential penalties for the crimes with which she was charged, how the sentencing
guidelines were calculated, and explained to her that the sentencing guidelines
were advisory in nature only. Plea Hearing Trancript pp. 10–11 (crim. doc. 49).
McCutcheon expressed that she understood the sentencing guidelines and the
potential consequences of her charges, id., and she still pled guilty. Accordingly,
the court finds that there is no reasonable probability that had McCutcheon’s
attorney not promised her a sentence of probation, McCutcheon would have
forgone the guilty plea.
D.

Counsel’s Threat of a Draconian Sentence

Finally, McCutcheon cannot establish that she was prejudiced by her
counsel’s alleged threats of a draconian sentence. Once more, this court informed
18

McCutcheon of the elements of the crimes with which she was being charged, the
potential punishments for the crimes, the consequences of foregoing a trial, and
that the sentencing guidelines were advisory in nature only. See supra Parts I.A–C.
Had McCutcheon felt threatened with a draconian sentence, she had multiple
opportunities to voice such concerns to this court. Instead, McCutcheon conveyed
that she understood the charges against her, had ample time to review those
charges with her attorney, was satisfied with her attorney’s excellent performance,
understood the consequences of foregoing a trial, understood the potential
penalties that her crimes carried, and understood that the sentencing guidelines
were advisory in nature only. Id. Thus McCutcheon utterly fails to establish that
there is a reasonable probability that absent her attorney’s alleged threat of a
draconian sentence, McCutcheon would not have entered the Plea Agreement or
guilty plea.
Because McCutcheon cannot establish that she was prejudiced by any of her
attorney’s alleged deficiencies, the court finds that McCutcheon did not suffer
ineffective assistance of counsel.
II.

Knowing and Voluntary Plea
Intertwined with Dr. McCutcheon’s ineffective assistance of counsel claims

are her claims that she did not enter the Plea Agreement or her guilty plea
19

knowingly and voluntarily. McCutcheon claims that due to ineffective assistance
of counsel, she lacked the knowledge to enter the plea knowingly and voluntarily.
Having already determined that Dr. McCutcheon’s ineffective assistance of
counsel claims fail, the court now reiterates that Dr. McCutcheon did enter a
knowing and voluntary guilty plea and the court is satisfied that McCutcheon also
knowingly and voluntarily executed the Plea Agreement.
As discussed above, the court simply finds it inconceivable that
McCutcheon did not understand her Guilty Plea Advice of Rights Certification.
See supra Part I.B. More importantly, Dr. McCutcheon resolved any questions
about the knowing and voluntary nature of her Plea Agreement and guilty plea at
the plea hearing. At the hearing, the court reminded McCutcheon that should she
change her mind about entering the plea, she was free to continue with the trial as
planned:
THE COURT: . . . And finally, if during this proceeding you change
your mind and you don’t want to plead; you want to have a trial Monday
like we had talked about, had a pretrial about, you just tell me, and I will
not cancel the jury. I will have the trial Monday like we have scheduled.
I am not trying to get you to do anything one way or another. It’s
your decision. Okay?
THE DEFENDANT: Yes, ma’am.
Plea Hearing Transcript pp. 4–5 (crim. doc. 49).

20

Further, the court specifically asked McCutcheon whether she was entering
her plea freely and voluntarily. McCutcheon responded that she was entering the
plea voluntarily and that she had read and understood the charges in her
indictment:
THE COURT: Okay. And do you understand that the Court must be
satisfied that you’re entering this plea freely and voluntarily?
THE DEFENDANT: I’ve entered it freely and voluntarily.
THE COURT: And you have discussed the consequences of this plea
with Mr. Tuten?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And you understand them?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. And do you understand that you’re charged in the
indictment in these particular six charges that are mentioned in the plea
agreement with the offenses of healthcare fraud and wire fraud?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Would you like for me to read you those charges in the
indictment? Or have you already read them?
THE DEFENDANT: We have a copy, and I read them.
THE COURT: Okay. And has your lawyer explained to you what the
elements of these offenses are and what the punishment is, and do you
understand that?

21

THE DEFENDANT: Yes, Your Honor.
Id. at 8–9 (emphasis added). McCutcheon also expressed no objections to the
factual basis for the Plea Agreement and she stated that she understood that this
court would consider those stipulated facts in its sentencing. Id. at 20–21, 24.
Before taking Dr. McCutcheon’s guilty plea, the court once more asked
McCutcheon if she had questions about the Plea Agreement and ensured that she
was entering the agreement knowingly and voluntarily:
THE COURT: Okay. Okay. Do you have any questions about the plea
agreement?
THE DEFENDANT: No, Your Honor.
THE COURT: Did you sign that voluntarily, as well?
THE DEFENDANT: Yes, Your Honor.
Id. at 23.
The court reiterates that at the sentencing hearing, Dr. McCutcheon
accepted the blame and responsibility for everything that occurred in her office,
noting that no one else was to blame and that she owed the government a lot of
money. Sentencing Hearing Transcript pp. 7–8 (crim. doc. 50). In this case, the
Plea Colloquy served its core principles of ensuring that McCutcheon entered her
plea free from coercion, that she understood the nature of the charges, and that she

22

understood the consequences of her plea. See United States v. Moriarty, 429 F.3d
1012, 1019 (11th Cir. 2005) (per curiam) (noting that courts accepting guilty pleas
are subject to Rule 11 and the three core principles served by the Plea Colloquy).
The representations Dr. McCutcheon made during the plea and sentencing
hearings were nothing if not confirmation that she entered the agreement and
guilty plea both knowingly and voluntarily. Further, because the record refutes Dr.
McCutcheon’s factual allegations, her request for an evidentiary hearing is due to
be denied.
CONCLUSION
Based upon a consideration of the foregoing, the court finds that petitioner’s
motion and request for evidentiary hearing are due to be and hereby are DENIED.
DONE and ORDERED this 25th day of August 2014.

INGE PRYTZ JOHNSON
SENIOR U.S. DISTRICT JUDGE

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