Watson v. USA

Filing 4

ORDER Denying Petition to Vacate under 28 USC 2255. Petitioners Motion under section 2255 is Denied without prejudice. The Court Denies a certificate of appealability. Signed by Judge M. James Lorenz on 3/7/2018.(All non-registered users served via U.S. Mail Service)(anh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, Plaintiff, 12 13 Case No.: 13-cr-2988-L ORDER: v. (1) DENYING MOTION TO VACATE, SET ASIDE, or CORRECT SENTENCE UNDER 28 U.S.C. 2255, and 14 15 WILLIAM JOSEPH WATSON, 16 Defendant. 17 (2) DENYING CERTIFICATE OF APPEALABILITY 18 19 20 21 22 Petitioner, William Joseph Watson (“Petitioner”) filed a motion pursuant to 28 23 U.S.C. § 2255 to vacate, set aside or correct his sentence. Respondent filed a Response 24 and Opposition to the Motion, and Petitioner has filed a Supplemental Traverse in 25 response. The Court has reviewed the record, the submissions of the parties, and the 26 supporting exhibits. For the reasons set forth below, the Court DENIES Petitioner’s 27 Motion without prejudice. 28 // 1 13-cr-2988-L 1 I. 2 Petitioner Watson was a licensed Doctor of Osteopath (D.O.) in the State of FACTUAL BACKGROUND 3 California and was also registered as a physician with the Drug Enforcement 4 Administration (DEA). These designations allowed him to prescribe controlled 5 substances to patients including Oxycodone, Hydrocodone, and Xanax. The prescription 6 of controlled substances for pain is subject to guidelines promulgated in a policy 7 statement enacted by the Medical Board of California. Included in the guidelines is the 8 requirement that a prescribing physician take a medical history and conduct a physical 9 exam for patients, which includes substance abuse history. Physicians are directed to 10 develop a treatment plan and keep patient records. The State of California also maintains 11 a Controlled Substance Utilization Review and Evaluation System (CURES) to monitor 12 all Schedule I through IV, and some Schedule V, controlled substance prescriptions 13 dispensed by pharmacies in California. CURES is managed by the California 14 Department of Justice, and is used by law enforcement and regulatory agencies to 15 monitor the patterns and practices of physicians prescribing controlled substances in 16 California. When law enforcement reviewed Petitioner’s CURES reports, they 17 discovered that he had been prescribing large quantities of controlled substances. 18 Petitioner was aware that some of the individuals to whom he prescribed Oxycodone 19 were using the prescriptions to obtain and sell Oxycodone to various customers. During 20 the time period in question, Petitioner wrote prescriptions for the distribution and 21 dispensing of Oxycodone in an amount equal to or exceeding 105,000 milligrams of 22 actual Oxycodone without any legitimate medical purpose and was compensated for 23 doing so by those to whom he provided or agreed to provide the prescriptions. 24 25 II. 26 Petitioner was charged in a 41-count indictment on August 13, 2013, with: Count 27 1, Conspiracy to Distribute and Dispense Oxycodone without a Legitimate Prescription, 28 in violation of 21 U.S.C. § 841 and 846; and Counts 2 through 41 with Distributing and PROCEDURAL BACKGROUND 2 13-cr-2988-L 1 Dispensing Oxycodone Without Legitimate Medical Purposes, in violation of 21 U.S.C. 2 § 841(a)(1) and (b)(1)(C)) and 18 U.S.C. § 2. 3 On August 26, 2016, Petitioner pled guilty to Count 1 of the indictment pursuant to 4 a plea agreement. Under the terms of the plea agreement, Petitioner agreed to waive any 5 right to appeal or to collaterally attack his conviction and sentence, provided the court did 6 not impose a custodial sentence greater than the high end of the guidelines range 7 recommended by the Government. See, Plea Agreement, 8-9 [ECF NO. 55.] In 8 exchange, the Government agreed to recommend a base offense level of 30, a 2-level 9 safety valve departure pursuant to United States Sentencing Guidelines (“USSG”) 10 §§ 2D1.1(b)(6) and 5C1.2 if applicable, a 2-level reduction for acceptance of 11 responsibility pursuant to USSG § 3E1.1, along with a 2 level increase for abuse of 12 position under USSG § 3B1.3. Id. at 6. 13 At sentencing, the prosecution requested a sixty-three month sentence, the low-end 14 of the Guideline Range. On December 8, 2014, Petitioner was sentenced by this Court to 15 57 months in the custody of the Bureau of Prisons, and three years supervised release. 16 [ECF NO. 65.] 17 18 19 20 III. DISCUSSION A. Sentencing Error Petitioner argues that his Sixth Amendment due process rights were violated when 21 the prosecutor wrongly claimed that the drugs prescribed by Petitioner caused Gabriel 22 Nussbaum’s death of a drug overdose. (Mot. 2). Although the prosecutor knew that 23 Nussbaum’s autopsy report showed no opiates in his system, he argued that “it’s by the 24 grace of God that [Petitioner] isn’t looking at manslaughter charges” which would carry a 25 twenty year minimum mandatory sentence under 21 U.S.C. § 841(b)(1)(C). (Id. at 3; 26 Traverse at 3). As a result of the prosecutor’s presentation of false and inflammatory 27 evidence, Petitioner claims his due process rights were violated under Alcorta v. State of 28 Texas, 355 U.S. 28 (1957), United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) and 3 13-cr-2988-L 1 Napue v. Illinois, 369 U.S. 264, 269 (1959). (Supp Traverse 3-4). Petitioner contends 2 that the prosecutor’s statements caused the Court to believe the sentencing 3 recommendation in the plea agreement was sufficiently lenient in light of the seriousness 4 of the offense, and resulted in a higher sentence. (Id.) Although Petitioner agreed to 5 waive his appeal and collateral attack rights, he did not believe he was also waiving his 6 right to challenge prosecutorial misconduct that occurred during sentencing proceedings, 7 therefore he contends his waiver of appeal and collateral attack were invalidated by the 8 Government’s misconduct. (Id.) 9 The Government counters that Petitioner waived his right to collaterally challenge 10 his sentence via a section 2255 Motion when he knowingly and voluntarily waived that 11 right in his plea agreement. (Opposition at 9). By the terms of that agreement, the 12 United States and Petitioner contemplated that he would not file any collateral attacks on 13 his conviction and sentence if the United States abided by its promise to recommend a 14 low-end sentence, which the Government did. (Id. at10). Petitioner has not argued that 15 his waiver of appeal and collateral attack was not knowingly and voluntarily made, and 16 the record supports this claim. (Id.) For this reason, the Government claims the Court 17 should enforce Petitioner’s waiver and dismiss the petition. (Id. at 11). 18 Plea agreements are contractual in nature and the plain language of the agreement 19 will generally be enforced if it is clear and unambiguous on its face. United States v. 20 Jeronimo, 398 F. 3d 1149, 1153 (9th Cir. 2005) overruled on other grounds by United 21 States v. Castillo, 496 F.3d 947, 957 (9th Cir.2007) (en banc). In contrast, the right to 22 collaterally attack a sentence under 28 U.S.C. § 2255 is statutory in nature, and a 23 defendant may therefore waive the right to file a § 2255 petition. See, e.g., United States 24 v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993) (by entering plea agreement waiving right 25 to appeal sentencing issues, defendant relinquished his right to seek collateral relief from 26 his sentence on the ground of newly discovered exculpatory evidence). An appellate 27 rights waiver “is enforceable if (1) the language of the waiver encompasses his right to 28 appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made.” 4 13-cr-2988-L 1 Jeronimo, 398 F.3d at 1153. To determine whether a guilty plea, and plea agreement, 2 were knowing and voluntary, the court looks to the Rule 11 plea colloquy. Jeronimo, 398 3 F.3d at 1157 n. 5. Such a waiver might also be ineffective where the sentence imposed is 4 not in accordance with the negotiated agreement, or if the sentence imposed violates the 5 law. United States v. Littlefield, 105 F.3d 527, 528 (9th Cir. 1996). Finally, a waiver 6 may not “categorically foreclose” defendants from bringing § 2255 proceedings 7 involving ineffective assistance of counsel or involuntariness of waiver. Abarca, 985 8 F.2d at 1014; United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1992). 9 Here, the prosecutor’s remarks regarding Nussbaum’s death did not violate 10 Petitioner’s due process rights and invalidate his appellate and collateral attack waiver. 11 During sentencing proceedings, defense counsel acknowledged that Petitioner had 12 overprescribed drugs, but recommended a sentence of 5 months incarceration and 5 13 months home confinement, with the ability to work or do volunteer service outside the 14 home. (Sentencing Transcript at 4 [ECF NO. 67]). Counsel argued that Petitioner was a 15 gifted healer who would better serve society by being able to help individuals as a 16 massage therapist. (Id.) 17 To counter this mitigation evidence, the prosecutor emphasized that Petitioner had 18 been overprescribing “tens of thousands of pills” which had significant consequences. 19 (Id.) To illustrate this point, the prosecutor described a few of Petitioner’s clients 20 including: 21 22 23 24 25 26 27 28 Gabriel Nussbaum, who was getting 25 Oxycodones a day by this defendant, written in his name and his mother's name. And when that wasn't enough, he switched over to Ambien and Soma, until Gabriel Nussbaum, at 24 years old, was found dead of an overdose from the pills this individual had prescribed. It's by the grace of God that he isn't looking at manslaughter charges because he was overdosing on Schedule IV substances that aren't covered by the code. (Id. at 10). Defense counsel responded by stating he was concerned about Nussbaum and did extensive investigation into that situation, but his conclusion was 5 13-cr-2988-L 1 Nussbaum had a medical condition which caused a lot of pain and for which he 2 had been prescribed many of the same drugs by multiple doctors, including 3 Petitioner. (Id. at 13). The Court considered this and other mitigation evidence 4 provided by Petitioner, including a medical report which diagnosed Petitioner with 5 significant mental health issues. (Id.) After considering this evidence, the Court 6 reduced his sentence by 1 point, resulting in a guideline range of 57 to 71 months. 7 (Sentencing Transcript at 19 [ECF NO. 67]). Rather than sentencing Petitioner to 8 63 months as requested by the Government, the Court sentenced him to the low- 9 end of the amended guideline range of 57 months. (Id.) 10 The Court specifically addressed allegations made by the Government 11 concerning Nussbaum’s death, stating, “I am not here to decide whether your drugs 12 caused the specific death of the one individual or the other, but I have to believe it 13 added to the cause, and as a result, that’s really just as serious.” (Id. at 19). While 14 it was not the sentence requested by Petitioner, it was evident that the Court did not 15 make a determination about Petitioner’s responsibility for Nussbaum’s death when 16 pronouncing Petitioner’s sentence, although it was weighed and considered. 17 Petitioner would like the Court to believe that the prosecutor’s statements 18 violated his due process rights as defined in Napue and its progeny. The Court does 19 not agree. Under Napue, “a conviction obtained through use of false evidence, 20 known to be such by representatives of the State, must fall under the Fourteenth 21 Amendment.” 360 U.S. at 269. To prevail on a Napue claim, “the petitioner must 22 show that (1) the testimony (or evidence) was actually false, (2) the prosecution 23 knew or should have known that the testimony was actually false, and (3) that the 24 false testimony was material. See Napue, 360 U.S. at 269-71. Evidence is material 25 if there is “any reasonable likelihood that the false testimony could have affected 26 the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103 (1976). In 27 Hayes, the Ninth Circuit determined that the prosecutor’s knowing presentation of 28 false evidence and failure to correct the record during trial violated the defendant’s 6 13-cr-2988-L 1 due process rights, noting that “[t]here is nothing redemptive about the sovereign’s 2 conspiring to deceive a judge and jury to obtain a tainted conviction.” 399 F.3d at 3 981. Similarly, in Alcorta, the defendant’s due process rights were violated during 4 trial when the prosecutor told a key witness not to volunteer damaging 5 impeachment evidence of which the prosecutor was aware and sat by while the 6 witness committed perjury, leading to a reversal. 355 U.S. 28, 30-32 (1957). 7 Unlike Napue, this case does not concern a conviction obtained through the use of 8 knowingly false evidence, but rather, the impact of allegedly false and misleading 9 evidence during sentencing proceedings. As indicated in Hayes, it is unquestionable that 10 the utilization of false evidence to obtain a conviction invokes grave due process 11 concerns, however the posture of a defendant who has pled guilty pursuant to a 12 negotiated plea agreement with the advice of counsel and agrees that his waiver of 13 appellate rights was knowingly and voluntarily given is in a much different position. See 14 Hayes, 399 F.3d at 978; Mooney v. Holohan, 294 U.S. 103, 112 (1935) (“safeguarding 15 the liberty of the citizen against deprivation through the action of the state, embodies the 16 fundamental conceptions of justice which lie at the base of our civil and political 17 institutions.”) 18 Even if the prosecutor’s statement concerning Nussbaum was in whole or part 19 factually incorrect, the evidence did not adversely affect Petitioner’s sentence because 20 Petitioner’s sentence fell below the anticipated plea agreement range. Such a sentence 21 cannot constitute a miscarriage of justice that “seriously affects the fairness, integrity, or 22 public reputation of judicial proceedings” as defined in Hahn, 359 F.3d at 1327. 23 Finally, there is no merit to Petitioner’s argument that his waiver is invalid on the 24 basis that he did not knowingly and voluntarily agree to allow the Government to present 25 false evidence during sentencing proceedings. Petitioner contends that a defendant is 26 entitled to know the entire scope of the rights he is forfeiting when he agrees to waive his 27 collateral attack rights, which did not happen here. However, Petitioner’s only authority 28 for this proposition is the dissent in Jeronimo, 398 F. 3d at 1158, which the Court does 7 13-cr-2988-L 1 not find persuasive. Instead, the Court finds that Petitioner was properly advised of the 2 rights he was foregoing when he executed the plea agreement, including the waiver of his 3 right to appeal or collaterally attack his sentence. During the plea colloquy, the Court 4 confirmed that Petitioner and his attorney had “gone over each and every page of the 5 agreement” and that he understood the terms and conditions of the agreement, asking: 6 7 8 9 THE COURT: Do you also understand if I pronounce sentence in accordance with the terms of the agreement, you have waived your right to appeal the sentence or at a later date, collaterally attack the sentence. Is that clear? MR. WATSON: Yes. 10 (Change of Plea Transcript at 6-7 [ECF NO 75.]) 11 Because Petitioner agreed that he understood the rights he was waiving, the Court 12 finds his waiver valid and enforceable. Jeronimo, 398 F.3d at 1157 n. 5 (A waiver is 13 considered knowing and voluntary where the plea colloquy satisfies Rule 11, and the 14 record reveals no misrepresentation or gross mischaracterization by counsel that tainted 15 the plea.) 16 17 For these reasons, the Court finds the prosecutor’s statements did not violate Petitioner’s due process rights during sentencing proceedings. 18 19 B. Ineffective Assistance of Counsel at Sentencing 20 The right to effective assistance of counsel under the Sixth Amendment exists 21 during sentencing proceedings. Lafler v. Cooper, 566 U.S. 156, 165 (2012). To establish 22 ineffective assistance of counsel, a petitioner must prove by a preponderance of the 23 evidence that: (1) the assistance provided by counsel fell below an objective standard of 24 reasonableness; and (2) there is a reasonable probability that, but for counsel’s errors, the 25 result of the proceeding would have been different. Strickland, 466 U.S. at 688. To 26 satisfy the deficiency prong of the Strickland test, the Petitioner must show that his 27 counsel’s performance was not “within the range of competence demanded of attorneys 28 in criminal cases.” Id. at 687 (quoting in part McMahan v. Richardson, 397 U.S. 759, 8 13-cr-2988-L 1 771 (1970). In considering this issue, there pis a “strong presumption that counsel’s 2 conduct falls within a wide range of professional assistance.” Strickland, 466 U.S. at 3 689. Moreover, courts typically find that post hoc complaints about the strategy or tactics 4 that defense counsel employed are insufficient to satisfy the first prong of Strickland. 5 See, e.g., United States v. Simmons, 923 F.2d 934, 956 (2d. Cir. 1991) (holding that 6 appellant’s displeasure with strategy employed by trial counsel was insufficient to 7 establish ineffectiveness). 8 9 Petitioner contends his constitutional right to effective assistance of counsel was violated by defense counsel’s failure to thoroughly research and present evidence to 10 counter the Government’s introduction of inflammatory evidence regarding Nussbaum’s 11 death. (Mot. 2-4). Counsel’s failure to introduce Nussbaum’s autopsy and toxicology 12 reports constituted deficient performance because, without the reports, it made it appear 13 that the plea agreement was fair by limiting the Government’s sentencing 14 recommendation to a sixty-three month sentence for conduct which otherwise would 15 expose Petitioner to a mandatory prison sentence of twenty years. (Supp. Traverse at 6). 16 Petitioner claims he was prejudiced by receiving a much higher sentence as a result of 17 counsel’s deficient performance. (Id.) 18 In response, the Government argues that Petitioner was represented by experienced 19 counsel who raised and advocated mitigating evidence with enough force to convince the 20 Court to depart downward from the agreed upon range in the plea agreement. (Oppo. 21 12). 22 During the sentencing hearing, defense counsel argued for a minimal amount of 23 custody by illustrating how Petitioner had been a successful medical professional who 24 helped many people with pain management during the course of his practice, prior to his 25 mental health issues deteriorating. (Sent. Tr. 13). Defense counsel acknowledged that 26 Petitioner was prescribing large amounts of drugs to young people, but argued that 27 Petitioner was manipulated by some of these addicts because he was a naïve, kind- 28 hearted person. (Id.) Counsel stated that Petitioner knew what he did was wrong, that he 9 13-cr-2988-L 1 accepted responsibility, and understood he was going to be punished. (Id.) With regard 2 to the statements about Nussbaum’s death, defense counsel said: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I am concerned about the statements he [ASUA] made about Mr. Nussbaum. Of course, I was concerned about Nussbaum and did a lot of investigation into the situation. Mr. Nussbaum had suffered from a syndrome called Ehlers-Danlos syndrome, which causes an individual to have a lot of pain. He had been treating with many physicians and was basically receiving the same drugs that Dr. Watson was prescribing for him. ... I have reviewed the autopsy report. There was an accidental overdose of drugs. Nussbaum was receiving drugs from lots of sources. So there seems to be an implication that they can't prosecute Dr. Watson for this, and the reason they shouldn't be able to prosecute was that the family just doesn't feel that he is responsible for it, for Gabriel Nussbaum's death. (Id. 13-14). Contrary to Petitioner’s claim, defense counsel conducted investigation into Nussbaum’s death, and determined it was an accidental overdose with no clear causation attributable to Petitioner. Wiggins v. Smith, 539 U.S. 510, 521-22 (2003) (duty to conduct investigation into mitigating evidence exists during sentencing). Counsel referred to Nussbaum’s autopsy report in response to the allegations made by the Government and noted that Petitioner was not being prosecuted for Nussbaum’s death, which contradicted the implication made by the prosecutor that Petitioner was lucky he wasn’t facing manslaughter charges. Far from being deficient performance, defense counsel’s conduct was “within the range of competence demanded of attorneys in criminal cases.” Strickland, 466 U.S. at 687. Because Petitioner fails to satisfy the deficiency prong of Strickland, the Court need not address whether he suffered prejudice, though it is relevant to note that Petitioner received a lower sentence than contemplated by the plea agreement due in part to defense counsel’s introduction of medical reports which outlined Petitioner’s ongoing mental health struggles. For the foregoing reasons, Petitioner has 27 28 10 13-cr-2988-L 1 not demonstrated he suffered ineffective assistance of counsel during sentencing 2 proceedings. Accordingly, the Court DENIES his claim. 3 A. 4 A certificate of appealability is authorized “only if the applicant has made a 5 substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To 6 meet this standard, Petitioner must show that “jurists of reason could disagree with the 7 district court’s resolution of his constitutional claims or that jurists could conclude the 8 issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. 9 Cockrell, 537 U.S. 322, 327 (2003). Petitioner does not have to show “that he should 10 prevail on the merits. He has already failed in that endeavor.” Lambright v. Stewart, 220 11 F.3d 1022, 1025 (9th Cir. 2000) (internal quotation omitted). CERTIFICATE OF APPEALABILITY 12 Having reviewed the matter, the Court finds that Petitioner has not made a 13 substantial showing that he was denied a constitutional right and the Court is not 14 persuaded that jurists could disagree with the Court’s resolution of his claims or that the 15 issues presented deserve encouragement to proceed further. Therefore, a certificate of 16 appealability is DENIED . 17 II. 18 19 20 CONCLUSION For the foregoing reasons, Petitioner’s Motion under section 2255 is DENIED without prejudice. Further, the Court DENIES a certificate of appealability. IT IS SO ORDERED 21 22 Dated: March 7, 2018 23 24 25 26 27 28 11 13-cr-2988-L

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