Weitzman v. USA

Filing 14

MEMORANDUM DECISION AND ORDER granting 8 Motion to Dismiss; dismissing in its entirety 1 Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 USC § 2255; finding as moot Weitzman's Motion for Bail. No certificate of appealability shall issue. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

UNITED STATES OF AMERICA,
Plaintiff-Respondent,
v.

Case No. 1:11-CV-226-BLW
1:06-CR-126-BLW
MEMORANDUM DECISION AND
ORDER

LAWRENCE WEITZMAN,
Defendant-Movant.

Pending before the Court is Lawrence Weitzman’s Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255 and Emergency Motion for Bail (Dkt. 1).
Having reviewed the Motion, Weitzman’s Supporting Memorandum (Dkt. 4), the
Government’s Motion to Dismiss (Dkt. 8), and Weitzman’s Response to the Motion to
Dismiss (Dkt. 10), as well as the underlying criminal record, the Court enters the
following Order dismissing the § 2255 Motion and finding the Motion for Bail moot.
BACKGROUND AND SUMMARY OF ISSUES
MEMORANDUM DECISION AND ORDER - 1

Following his plea of guilty to conspiracy to structure transactions and launder
money in violation of 18 U.S.C. § 371, the Court sentenced Weitzman to a term of
imprisonment of 27 months, a fine of $25,000, and a special assessment of $100 and
ordered Weitzman to forfeit property in the substituted value of $175,000. Judgment,
Dkt. 1110 in criminal case. The Court found the guideline range to be 87 to 108 months
which was capped at the statutory maximum of 60 months. The Court then imposed a
sentence below the guideline range primarily because Weitzman suffers from an incurable
form of blood cancer, Waldenstrom’s Macrogobulinemia. Aware that he was being
actively treated at the Stanford University Medical School with an experimental clinical
trial drug called Cal-101, the Court postponed his reporting date to allow for an additional
treatment prior to incarceration and included in the Judgment the following
recommendations:
. . . that the Defendant undergo a thorough medical
assessment by the Bureau of Prisons, and that the Defendant
be granted a medical furlough under 18 U.S.C. § 3622(a)(1)
(sic)1 in order to obtain medical treatment and to allow the
Defendant to continue his participation in a clinical trial. The
cost of the medical furlough shall be paid by the Defendant.
The Court further recommends that the Defendant be placed
in a facility as close to his residence as possible.
Judgment at 2, Dkt. 1110.
Weitzman self-reported on November 17, 2010, to the Bureau of Prison’s (“BOP”)

1

The subsection to which the Court was actually referring was 18 U.S.C. § 3622(a)(3) which
pertains to furloughs for medical treatment not otherwise available. Subsection 3622(a)(1) pertains to
furloughs to visit a relative who is dying.
MEMORANDUM DECISION AND ORDER - 2

medical center in Butner, North Carolina, where he remains incarcerated. His projected
release date is November 1, 2012.
Because his Plea Agreement contained an appeal waiver, Weitzman did not appeal
his conviction or sentence. However, he timely filed the pending § 2255 Motion under an
exception to the § 2255 waiver which permitted a § 2255 motion alleging ineffective
assistance of counsel based solely on information not known to him at the time of
sentencing and which could not have been known by him at that time. Plea Agreement at
¶ VII.B, pp. 11-12, Dkt. 681. More specifically, Weitzman alleges that counsel was
ineffective for not determining prior to sentencing that despite its Policy Statement
6031.01 permitting medical furloughs, BOP’s actual practice is to deny furloughs for
medical care involving clinical trials. He contends that “counsel’s erroneous reliance
upon the Bureau’s program statement mislead the sentencing court into believing that the
defendant would be accorded a reasonable opportunity to obtain medical furloughs to
continue his treatment on Cal-101.” § 2255 Motion at 10.
The § 2255 Motion was prompted by the steady decline of Weitzman’s health
since January 2011 and the BOP’s alleged refusal to allow him a furlough to participate in
the Stanford clinical trial despite the recommendation of the Dr. Andres Carden, the lead
oncologist at Butner, that he be placed back on the trial.
Weitzman seeks release on bail to resume treatment and seeks resentencing taking
into consideration the “newly discovered impediments to defendant’s access to vital
medical treatment.” § 2255 Motion at 11.
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The Government has moved to dismiss the § 2255 Motion and the Motion for Bail
contending that issues regarding medical condition and treatment do not provide a basis
for § 2255 relief, that counsel’s performance was not objectively unreasonable, that the
claims are speculative, and that he has not been prejudiced.
LEGAL STANDARD
1.

28 U.S.C. § 2255
Title 28 U.S.C. § 2255 provides four grounds under which a federal court may

grant relief to a federal prisoner who challenges the imposition or length of his or her
incarceration: (1) “that the sentence was imposed in violation of the Constitution or laws
of the United States;” (2) “that the court was without jurisdiction to impose such
sentence;” (3) “that the sentence was in excess of the maximum authorized by law;” and
(4) that the sentence is otherwise “subject to collateral attack.” 28 U.S.C. § 2255(a).
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that a federal
district court judge must dismiss a § 2255 motion “[i]f it plainly appears from the motion,
any attached exhibits, and the record of prior proceedings that the moving party is not
entitled to relief.” If the Court does not dismiss pursuant to Rule 4(b), the Court shall
order the Government “to file an answer, motion, or other response within a fixed time, or
to take other action the judge may order.”
The Court may dismiss a § 2255 motion at other stages of the proceeding such as
pursuant to a motion by respondent, after consideration of the answer and motion, or after
consideration of the pleadings and an expanded record. See Advisory Committee Notes
MEMORANDUM DECISION AND ORDER - 4

following Rule 8 of the Rules Governing Section 2254 Proceedings incorporated by
reference into the Advisory Committee Notes following Rule 8 of the Rules Governing
Section 2255 Proceedings.
2.

Ineffective Assistance of Counsel
The well-established two-prong test for evaluating ineffective assistance of

counsel claims is deficient performance and resulting prejudice. See Strickland v.
Washington, 466 U. S. 668 (1984). Mere conclusory allegations are insufficient to state a
claim of ineffective assistance of counsel. See Shah v. United States, 878 F.2d 1156,
1161 (9th Cir. 1989). The Strickland standard is “highly demanding.” Kimmelman v.
Morrision, 477 U.S. 365, 381-82; 386 (1986).
In order to establish deficient performance, a defendant must overcome the strong
presumption that counsel’s performance falls “within the wide range of reasonable
professional assistance” by showing that counsel’s performance “fell below an objective
standard of reasonableness.” Strickland, 466 U.S. at 688-89. In order to establish
prejudice, a defendant must affirmatively prove by a reasonable degree of probability
that, but for counsel's unprofessional errors, the result of the proceeding would have been
different. Id. at 694.
Both prongs of the Strickland test must be met “before it can be said that a
conviction (or sentence) ‘resulted from a breakdown in the adversary process that
render[ed] the result [of the proceeding] unreliable’ and thus in violation of the Sixth
Amendment.” United States v. Thomas, 417 F.3d 1053, 1056 (9th Cir. 2005) (quoting
MEMORANDUM DECISION AND ORDER - 5

Strickland, 466 U.S. at 687). In evaluating an ineffective assistance of counsel claim, the
Court may consider the performance and prejudice components of the Strickland test in
either order. Strickland, 466 U.S. at 697. Furthermore, the Court need not consider one
component if there is an insufficient showing of the other. Id.
DISCUSSION
There is no dispute regarding the seriousness of Weitzman’s longstanding medical
condition. It was amply documented throughout the various stages of the underlying
criminal case. Indeed, hearings were continued for long periods of time to allow
Weitzman to undergo treatment whenever his condition deteriorated to the point where he
could not adequately participate in the proceedings. Furthermore, the Court was well
aware of the concerns of counsel at sentencing when he argued for a sentence of
probation with home confinement. Nevertheless, regardless of how much the Court may
be sensitive to his concerns, it cannot grant relief under § 2255.
1.

§ 2255 Does Not Apply to Claims Pertaining to Inadequate Medical Care
Section 2255 pertains to challenges to the legality or validity of a conviction or

sentence. The crux of Weitzman’s issue is that BOP is allegedly refusing to provide what
may be his only viable medical treatment. That claim would appear to be more
appropriately addressed in either of two ways. First, he could challenge the execution of
his sentence pursuant to 28 U.S.C. § 2241. See Hernandez v. Campbell, 204 F.3d 861,
864-65 (9th Cir. 1999) (§ 2241 is the appropriate vehicle for challenging the manner,
location, or condition under which a sentence is executed and must be brought in the
MEMORANDUM DECISION AND ORDER - 6

custodial court). Secondly, he could bring a civil rights claim pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) alleging
deliberate indifference to his serious medical needs in violation of the Eighth
Amendment. See Pollard v. The GEO Group, Inc., 629 F.3d 843, 863 (9th Cir. 2010)
(noting that courts have regularly recognized Eighth Amendment Bivens actions against
federal prison officials).
The Court expresses no opinion on which of the two options is more appropriate or
whether Wetizman would likely prevail on either one of the options. However, even if
§ 2255 were the appropriate vehicle for receiving treatment, Weitzman’s claim is subject
to dismissal.
2.

Argument is Based on an Inaccurate Account of What Transpired at
Sentencing.
Weitzman’s § 2255 Motion and his Response to the Motion to Dismiss are replete

with references to counsel’s erroneously advising the Court at sentencing about the
availability of a medical furlough program that the Court allegedly relied upon to
Weitzman’s detriment. The argument is summarized very well in his Response:
Here, Mr. Weitzman argues that this Court would not have
necessarily sentenced him to 27 months confinement, nor
indirectly cause (sic) him to be incarcerated 2500 miles from
his physicians and family, had Defense counsel brought to
this Court’s attention that the BOP would not permit
Weitzman a medical furlough to maintain his treatment at
Stanford University. Defense counsel’s research and
argument on the availability of a medical furlough plainly
affected this Court’s thinking at sentencing.

MEMORANDUM DECISION AND ORDER - 7

Response at 10, Dkt. 9.
In resolving a § 2255 motion as opposed to a § 2254 habeas petition challenging a
state conviction, a court has the benefit of referring to the record, its notes, and its own
recollections of a proceeding or of counsel. Here, the Court’s recollection that it had
advised counsel of the possibility of a medical furlough was confirmed by a review of the
rough transcript of the sentencing hearing.2
A review of the transcript reveals that the first mention of Weitzman’s health was
the Court’s comments during AUSA Stiles’ sentencing argument. The Court noted that it
had determined that furloughs “can” be granted or accommodated. Then, at the outset of
defense counsel’s sentencing argument, the Court indicated that there are statutory
provisions for medical furloughs and that it would make a “very strong recommendation”
to the BOP for a furlough. Next, during his argument, defense counsel stated that he did
not think that Weitzman would get a furlough to go to Stanford once a week to continue
the clinical trial but that it was something he could look into.
Counsel may have researched the furlough statute and related BOP policies prior
to sentencing. However, there is clearly no evidentiary support for the claim that defense
counsel enlightened the Court at sentencing about the possibility of a furlough and
persuaded the Court that it would be an available option. The primary thrust of counsel’s

2

The Court may rely on the draft transcript as augmented by its own notes and recollections in
reaching its decision on the § 2255 Motion. The official transcript has been ordered, but given the
urgency of this § 2255 Motion, this decision may be filed before the official transcript is filed.

MEMORANDUM DECISION AND ORDER - 8

argument regarding Weitzman’s medical condition was that Weitzman would die in
prison if sentenced to a term of imprisonment.
Even if the Court were to liberally construe Weitzman’s argument to include the
scenario suggested in the § 2255 Motion or to assume that counsel was ineffective for not
advising the Court at sentencing that the BOP practice (as opposed to policy) was to deny
furloughs for clinical trials, the claim would still fail.
3.

Counsel’s Performance was not Objectively Unreasonable
Defense counsel’s strategy at sentencing was to argue vociferously and eloquently

for a sentence of home confinement. His argument was based primarily on Weitzman’s
health issues but also stressed Weitzman’s failure to recognize red flags that should have
alerted him that he was assisting in money laundering, his otherwise exemplary life, his
age, and his contributions to the community. To so argue was a reasonable strategy. Any
attempt to persuade the Court that BOP had a furlough policy for medical treatment
would have undermined his arguments for home detention.
Counsel’s arguments convinced the Court to impose a sentence of approximately
half the capped guideline range and one-third of what the guideline range would have
been absent the five-year statutory maximum. Counsel was aware, either through his own
efforts or that of the Court’s, that there was a statute and BOP policy providing for
medical furloughs. He has cited no authority indicating that it is objectively unreasonable
to fail to look behind a BOP policy to determine BOP’s actual practices implemented
under that policy. The Court simply can not find that failure to look behind the policy
MEMORANDUM DECISION AND ORDER - 9

constitutes an error of constitutional dimension. However, even if it did, Weitzman
would still have to demonstrate prejudice.
4.

Prejudice
The appropriate measure of prejudice is not whether Weitzman’s health has

deteriorated absent treatment and continues to do so. As stated above, Weitzman must
demonstrate that absent the alleged deficient performance, the result of the proceeding
would have been different. His contention that the Court otherwise would have “not
necessarily” sentenced Weitzman to 27 months of imprisonment is purely speculative.
Response at 10. The wording of the contention itself suggests the speculation.
Furthermore, a review of the transcript indicates that the Court was well aware of the fact
that the BOP might not grant a furlough yet still imposed the 27-month sentence.
The Court cited 18 U.S.C. § 3622(1) and BOP Policy Statement 5280.08 regarding
furloughs when discussing the § 3553(a) factor of Weitzman’s health.3 The Court noted
that the policy “may allow” a furlough and noted that the BOP is “generally very
cooperative” regarding medical care. The Court further stated that the BOP “may very
well accommodate” a request for furlough. The Court then recommended to the BOP that
it grant a furlough for the clinical trial while at the same time stating that all it could do
was make the recommendation. Although the possibility of a furlough “provided some
comfort” to the Court, at no time did the Court indicate that it would have imposed a
3

Policy Statement 5280.08 refers to furloughs in general, including medical furloughs. Policy
Statement 6031.01 cited by defense counsel more specifically relates to furloughs in the context of patient
care.
MEMORANDUM DECISION AND ORDER - 10

lesser sentence or probation were a furlough not an option. In other words, the Court
knew at the time it imposed sentence that BOP in its discretion could decide not to grant a
furlough. Accordingly, Weitzman has not demonstrated prejudice.
CONCLUSION
Generally, a § 2255 motion is brought by a prisoner pro se or by new counsel.
This case is unusual in that counsel himself is trying to emphatically persuade the Court
that he provided ineffective assistance of counsel. However, counsel’s claims of his own
ineffectiveness cannot compel § 2255 relief in these circumstances.
Given the rapid deterioration of Weitzman’s health, pursuing relief under § 2241
or Bivens may not be feasible. The Court encourages both defense counsel and the
Government to continue to work with the BOP to reach a practical solution to secure
effective treatment whether it is the Stanford clinical trial or another viable option.
The Court is hopeful, given its experience noted at the sentencing hearing that
BOP is generally very cooperative regarding medical care, the Declaration of Elizabeth
A. Nagy, and the statements of defense counsel in his Response regarding some
movement by the BOP, that a suitable arrangement for treatment can be made without
further delay.4

4

Elizabeth A. Nagy is the Special Assistant to the Assistant Director/General Counsel for the
BOP. Her Declaration submitted by the Government to “clarify the record in response to the factual
allegations made in the § 2255 motion and memorandum,” indicates that an inmate’s participation in a
clinical trial is determined on a case-by-case basis and is not dependent on granting of a medical furlough.
Nagy Decl., Dkt. 7. Furthermore, defense counsel acknowledges in his Response that since the filing of
the § 2255 Motion, the BOP has requested Stanford’s clinical administrator to explore three options for
administering the clinical trial. Response at 5-6.
MEMORANDUM DECISION AND ORDER - 11

CERTIFICATE OF APPEALABILITY
A § 2255 movant cannot appeal from the denial or dismissal of his § 2255 motion
unless he has first obtained a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R.
App. P. 22(b). A certificate of appealability will issue only when a movant has made “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
satisfy this standard when the court has dismissed a § 2255 motion (or claims within a
§ 2255 motion) on procedural grounds, the movant must show that reasonable jurists
would find debatable (1) whether the court was correct in its procedural ruling, and (2)
whether the motion states a valid claim of the denial of a constitutional right. Slack v.
McDaniel, 529 U.S. 473, 484 (2000).5 When the court has denied a § 2255 motion or
claims within the motion on the merits, the movant must show that reasonable jurists
would find the court’s decision on the merits to be debatable or wrong. Slack, 529 U.S. at
484; Allen v. Ornoski, 435 F.3d 946, 951 (9th Cir. 2006).
After carefully considering the record and the relevant case law, the Court finds
that reasonable jurists would not find the Court’s determination that Weitzman has not
demonstrated either deficient performance or prejudice to be debatable or wrong.
Accordingly, a certificate of appealability will not issue.
ORDER

5

The requirements for a certificate of appealability for a § 2255 appeal do not appear to differ
from the requirements for a certificate of appealability for a § 2254 habeas petition related to a state
conviction. See United States v. Asrar, 116 F.3d 1268 (9th Cir. 1997). Therefore, cases addressing the
requirements in the context of a § 2254 proceeding are pertinent to a § 2255 proceeding as well.
MEMORANDUM DECISION AND ORDER - 12

IT IS ORDERED:
1.

The Government’s Motion to Dismiss (Dkt. 8) is GRANTED.

2.

Lawrence Weitzman’s Motion to Vacate, Set Aside, or Correct Sentence
Pursuant to 28 U.S.C. § 2255 (Dkt. 1) is DISMISSED in its entirety.

3.

Weitzman’s Motion for Bail is MOOT.

4.

No certificate of appealability shall issue. Weitzman is advised that he may
still request a certificate of appealability from the Ninth Circuit Court of
Appeals, pursuant to Federal Rule of Appellate Procedure 22(b) and Local
Ninth Circuit Rule 22-1. To do so, he must file a timely notice of appeal.

5.

If Weitzman files a timely notice of appeal, and not until such time, the
Clerk of Court shall forward a copy of the notice of appeal, together with
this Order, to the Ninth Circuit Court of Appeals. The district court’s file in
this case is available for review online at www.id.uscourts.gov.

DATED: June 15, 2011

Honorable B. Lynn Winmill
Chief U. S. District Judge

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