Saoud v. USA

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATION (DKT. NO. 6 ) AND DENYING AND DISMISSING 2255 PETITION (DKT. NO. 1 ). This case is dismissed with prejudice. The Court denies a certificate of appealability and directs the Clerk to enter a separate judgment order in this matter. Signed by Senior Judge Irene M. Keeley on 4/13/18. (mh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ALLEN G. SAOUD,
Petitioner,
v.

//

CIVIL ACTION NO. 1:16CV73
CRIMINAL ACTION NO. 1:12CR113
(Judge Keeley)

UNITED STATES OF AMERICA,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 6]
AND DENYING AND DISMISSING § 2255 PETITION [DKT. NO. 1]
Pending is the Motion for Relief Pursuant to 28 U.S.C. § 2255
(“Petition”) filed by the petitioner, Allen G. Saoud (“Saoud”). The
question presented is whether, under the Sixth Amendment and United
States v. Cronic, 466 U.S. 648 (1984), the Court must presume that
Saoud was prejudiced by the ineffective assistance of trial counsel
because the grand jury returned a second superseding indictment
eight days before his trial. Concluding that no such presumption
obtains under the facts of this case, the Court DENIES the Petition
and DISMISSES the case WITH PREJUDICE (Dkt. No. 1).
I. BACKGROUND
A.

Conviction and Sentencing1
On December 4, 2012, a grand jury sitting in the Northern

District of West Virginia returned a 23-count indictment against
1

Unless otherwise indicated, citations to docket entries in
this section refer to Criminal No. 1:12cr113, and citations to
docket entries in the remainder of the Order refer to Civil No.
1:16cv73.

1:16CV73/1:12CR113

SAOUD v. USA

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 6]
AND DENYING AND DISMISSING § 2255 PETITION [DKT. NO. 1]
Saoud, charging him with health care and bankruptcy fraud, among
other offenses (Dkt. No. 1). In short, the indictment alleged that
Saoud defrauded Medicare and Medicaid by concealing his involvement
in medical practices that participated in federal health care
programs, despite the fact that he previously had entered into a
settlement agreement with the Government that forbade him from
receiving payment from such programs. See id. On May 7, 2013, the
grand jury returned a superseding indictment, which amended certain
language

in

the

original

indictment

but

did

not

allege

any

additional violations (Dkt. No. 29). Saoud responded by asserting
his right to a speedy trial and requesting that the case proceed to
trial as scheduled on June 12, 2013 (Dkt. No. 33).
On June 4, 2013, however, the grand jury returned a second
superseding indictment, which added eight new counts of health care
fraud, in violation of 18 U.S.C. § 1347, and one new count of
aggravated identify theft, in violation of 18 U.S.C. § 1028A(a)(1)
(Dkt. No. 56 at 8-11). The crux of the new charges was the
allegation that Saoud had solicited Dr. Frank Swisher to be the
laboratory director at his dermatology practice, which in turn
submitted claims for laboratory services that falsely indicated
they had been performed by Dr. Swisher. Id. Saoud moved to sever
the additional counts based on undue prejudice under Fed. R. Crim.
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SAOUD v. USA

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 6]
AND DENYING AND DISMISSING § 2255 PETITION [DKT. NO. 1]
P. 14(a) or, in the alternative, to continue the trial on the
entire indictment (Dkt. No. 62).2 Asserting that “[t]he bulk of the
evidence” it would offer had been “disclosed to [Saoud] months
ago,” the Government opposed the motion because Saoud had failed to
make the requisite “strong showing of prejudice” (Dkt. No. 64).
At the pretrial conference on June 7, 2013, the Government
explained that the additional charges would be proven through the
testimony of Dr. Frank Swisher - from whom it already had intended
to elicit similar testimony regarding the original charges - as
well as approximately 15 pages of billing records (Dkt. No. 194 at
13, 16-17). The Court thus denied Saoud’s motion, finding he had
failed to establish that any undue prejudice would result if trial
proceeded as scheduled (Dkt. Nos. 71; 194 at 18). The Court
explained in a subsequent order:
A defendant seeking to sever charges has the burden of
demonstrating a strong showing of prejudice. Here, Saoud
failed to establish a strong showing of prejudice based
on the additional charges being added shortly before
trial. The new charges in the Second Superseding
Indictment not only related to the existing charges in
the original indictment, but they also occurred within
2

Rule 14(a) provides that, “[i]f the joinder of offenses
. . . for trial appears to prejudice a defendant . . . the court
may order separate trials of counts.” The Fourth Circuit reviews
Rule 14 decisions for abuse of discretion and “will not reverse a
denial of a motion to sever absent a showing of clear prejudice.”
United States v. Dinkins, 691 F.3d 358, 367-68 (4th Cir. 2012).
3

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SAOUD v. USA

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 6]
AND DENYING AND DISMISSING § 2255 PETITION [DKT. NO. 1]
the same time frame as the existing charges. Moreover,
the issues presented were not complicated, nor did they
require extensive preparation on the part of defense
counsel in order to refute them at trial, as Saoud
already possessed the relevant discovery material.
(Dkt. No. 191 at 3) (internal citation omitted).
On June 25, 2013, following a ten day jury trial, Saoud was
convicted of thirteen counts of health care fraud, in violation of
18 U.S.C. § 1347; one count of aggravated identity theft, in
violation of 18 U.S.C. § 1028A(a)(1); one count of concealment of
a health care matter, in violation of 18 U.S.C. § 1035(a)(1); one
count

of

a

corrupt

endeavor

to

obstruct

and

impede

the

due

administration of internal revenue laws, in violation of 26 U.S.C.
§ 7212(a); five counts of bankruptcy fraud, in violation of 18
U.S.C. § 152(2); and one count of false statement to a federal
agent, in violation of 18 U.S.C. § 1001(a)(3). Notably, the jury
convicted Saoud of all nine additional counts included the second
superseding indictment (Dkt. No. 106). On March 25, 2014, the Court
sentenced

Saoud

to

99

months

of

imprisonment

and

imposed

a

$2,630,000 fine (Dkt. No. 170). The Court also imposed $339,817.50
of restitution and a forfeiture money judgment in the amount of
$1,243,118.29 (Dkt. No. 240).

4

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SAOUD v. USA

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 6]
AND DENYING AND DISMISSING § 2255 PETITION [DKT. NO. 1]
B.

Direct Appeal
On April 8, 2014, Saoud noticed his appeal to the Fourth

Circuit Court of Appeals (Crim. No. 1:12cr113, Dkt. No. 183). As
relevant to the pending Petition, Saoud argued that he had been
unduly prejudiced when this Court denied his motion to sever or, in
the alternative, continue the trial. More particularly, Saoud
asserted that he “did not have adequate time to prepare a defense,”
“review the over 200,000 pages of discovery documents,” “interview
the witnesses contained in the additional nine counts,” or “hire an
expert” (Dkt. No. 5-1 at 24). As it did below, the Government
argued that Saoud had not been prejudiced “because the new charges
were related to the original charges, were not complex, and were
largely based on previously disclosed discovery” (Dkt. No. 5-2 at
22).
At oral argument on appeal, Saoud’s trial counsel repeatedly
expressed that he had not been prepared to defend against the
additional counts in the second superseding indictment (Dkt. No. 1
at 4-5). Nonetheless, on December 19, 2014, the court of appeals
affirmed Saoud’s conviction:
[Saoud] does not explain, as he must, how his inability
to do these things specifically prejudiced his defense.
Our precedent establishes that an appellant cannot
demonstrate prejudice with “a general allegation of ‘we
5

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SAOUD v. USA

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 6]
AND DENYING AND DISMISSING § 2255 PETITION [DKT. NO. 1]
were not prepared,’” United States v. LaRouche, 896 F.2d
815, 825 (4th Cir. 1990), or “post-hoc assertions by
counsel that given more time something might have turned
up,” id. (quoting United States v. Badwan, 624 F.2d 1228,
1231 (4th Cir. 1980)) (internal quotation marks omitted).
Even at oral argument, with the benefit of hindsight, Dr.
Saoud could identify no specific source of prejudice.
See Unites States v. Saoud, 595 F. App’x 182, 186 (4th Cir. 2014).
The Supreme Court of the United States denied Saoud’s petition for
a writ of certiorari on April 27, 2015 (Dkt. No. 1 at 2).
C.

§ 2255 Petition
On April 27, 2016, Saoud filed his § 2255 Petition in this

Court, raising one ground for relief (Dkt. No. 1). He argues that
“[t]he inability of counsel to prepare for trial following the
second superseding indictment where nine new counts were added,
bringing forth new legal theories with new discovery, just eight
calender days before trial,” warrants a presumption of prejudice
under United States v. Cronic, 466 U.S. 648 (1984). Saoud asks the
Court “to grant a petition for a writ of habeas corpus, and grant
a new trial or any relief available under Johnson v. United States,
135 S. Ct. 2551 (2015)” (Dkt. No. 1 at 4-5).3

3

This is Saoud’s only reference to Johnson v. United States,
135 S. Ct. 2551 (2015), which is in no way applicable to the
question presented by the Petition.
6

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SAOUD v. USA

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 6]
AND DENYING AND DISMISSING § 2255 PETITION [DKT. NO. 1]
Pursuant to 28 U.S.C. § 636 and the local rules of this
District, the Petition was referred to the Honorable James E.
Seibert, United States Magistrate Judge, for initial review. In a
report and recommendation (“R&R”) entered on September 26, 2017,
Magistrate Judge Seibert recommended that the Court deny the
Petition (Dkt. No. 6). First, he reasoned that Saoud’s ineffective
assistance

claim

is

precluded

because

the

same

issues

were

presented on direct appeal. Id. at 8. Second, he concluded that the
circumstances of Saoud’s case do not warrant a presumption of
prejudice.

Id.

at

8-10.

Saoud

filed

objections

to

the

recommendation on October 11, 2017 (Dkt. No. 7).
II. APPLICABLE LAW
Under 28 U.S.C. § 2255(a), a prisoner may move his sentencing
court “to vacate, set aside or correct” a sentence if he claims it
“was imposed in violation of the Constitution or laws of the United
States.” A prisoner’s sentence violates the Constitution if he was
deprived of his Sixth Amendment right to the effective assistance
of trial counsel. To establish a claim of ineffective assistance of
counsel, a defendant must demonstrate “that counsel’s performance
was deficient” and “that the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

7

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SAOUD v. USA

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 6]
AND DENYING AND DISMISSING § 2255 PETITION [DKT. NO. 1]
To

satisfy

the

“performance

prong,”

a

defendant

must

demonstrate that “counsel’s representation fell below an objective
standard of reasonableness.” Id. at 687-88. There is a “strong
presumption” that the conduct at issue is reasonable on the “wide
range of reasonable professional assistance.” United States v.
Rangel, 781 F.3d 736, 742 (4th Cir. 2015) (quoting United States v.
Higgs, 663 F.3d 726, 739 (4th Cir. 2011)). Under the “prejudice
prong,” the defendant must establish that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland,
466 U.S. at 694. “There must be ‘a probability sufficient to
undermine

confidence

in

the

outcome’

of

the

trial,”

but

“a

defendant is not required to establish that ‘counsel’s deficient
conduct more likely than not altered the outcome of the case.’”
Rangel, 781 F.3d at 742 (quoting Strickland, 466 U.S. at 693-94).
Nonetheless, in United States v. Cronic, “the Supreme Court
held that there are certain situations where the reliability of a
trial becomes so questionable that the defendant need not show that
he was actually prejudiced. Instead, prejudice is presumed.” United
States v. Ragin, 820 F.3d 609, 612 (4th Cir. 2016). The presumption
of prejudice applies in three “limited contexts”:

8

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SAOUD v. USA

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 6]
AND DENYING AND DISMISSING § 2255 PETITION [DKT. NO. 1]
First, prejudice is presumed when the defendant is
completely denied counsel “at a critical stage of his
trial.” Second, prejudice is presumed if there has been
a constructive denial of counsel. This happens when a
lawyer “fails to subject the prosecution's case to
meaningful adversarial testing,” thus making “the
adversary process itself presumptively unreliable.”
Third, the [Supreme] Court identified certain instances
“when although counsel is available to assist the accused
during trial, the likelihood that any lawyer, even a
fully competent one, could provide effective assistance
is so small that a presumption of prejudice is
appropriate without inquiry into the actual conduct of
the trial.”
Id. at 617-18 (internal citation omitted). If a defendant can make
the “extremely high showing” necessary to warrant a presumption of
prejudice, he necessarily establishes that there was a “structural
error” in his trial. Id. at 618 (concluding that a presumption of
prejudice was warranted when the defendant’s trial attorney slept
during “substantial” portions of the trial).
III. DISCUSSION
When reviewing a magistrate judge’s R&R, the Court must review
de novo the portions to which an objection is timely made. 28
U.S.C. § 636(b)(1)(c). Having conducted a de novo review of the
record

and

Saoud’s

objections,

9

the

Court

concludes

that

the

1:16CV73/1:12CR113

SAOUD v. USA

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 6]
AND DENYING AND DISMISSING § 2255 PETITION [DKT. NO. 1]
Petition is without merit because Saoud is not entitled to a
presumption of prejudice under United States v. Cronic.4
The facts of Cronic itself illustrate that Saoud has not made
the “extremely high showing” necessary to establish a presumption
of prejudice in this case. In Cronic, the defendant was charged
with mail fraud totaling $9,400,000. When his retained attorney
withdrew, “[t]he court appointed a young lawyer with a real estate
practice to represent [the defendant], but allowed him only 25 days
for pretrial preparation.” Cronic, 466 U.S. at 649. Although the
defendant
conviction

was

convicted,

because

it

“the

Court

inferred

of

Appeals

that

[the

reversed

the

defendant’s]

constitutional right to the effective assistance of counsel had
been

violated.”

inference

on

Id.

five

at

652.

factors:

The
“(1)

4

court

of

[T]he

appeals
time

based

afforded

its
for

The R&R also concluded that Saoud’s ineffective assistance
of counsel claim is precluded because the issue was decided on
direct appeal (Dkt. No. 6 at 8) (citing United States v. Roane, 378
F.3d 328, 397 (4th Cir. 2004)), but the Court must respectfully
disagree. Presumptive prejudice under Cronic is a structural error,
which warrants relief “without any inquiry into the existence of
actual prejudice.” Ragin, 820 F.3d at 618. The Fourth Circuit
rejected Saoud’s argument on direct appeal because he failed to
establish how the Court’s denial of his motion to sever or continue
“specifically prejudiced his defense.” Saoud, 595 F. App’x at 186.
Given that no such showing is required under Cronic, the Fourth
Circuit’s analysis on direct appeal does not preclude the Sixth
Amendment question presented by Saoud’s § 2255 Petition.
10

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SAOUD v. USA

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 6]
AND DENYING AND DISMISSING § 2255 PETITION [DKT. NO. 1]
investigation and preparation; (2) the experience of counsel; (3)
the gravity of the charge; (4) the complexity of possible defenses;
and (5) the accessibility of witnesses to counsel.” Id.
On certiorari, the Supreme Court acknowledged that a lack of
preparation time may result in a presumption of prejudice. Id. at
660 (citing Powell v. Alabama, 287 U.S. 45 (1931)). It further
reasoned, however, that “every refusal to postpone a criminal trial
will not give rise to such a presumption.” Id. at 661 (citing Avery
v. Alabama, 308 U.S. 444 (1940)). Rather “only when surrounding
circumstances justify a presumption of ineffectiveness can a Sixth
Amendment claim be sufficient without inquiry into counsel’s actual
performance at trial.” Id. at 662.
In light of this standard, the Court stated that “[n]either
the period of time that the Government spent investigating the
case, nor the number of documents that its agents reviewed during
that investigation, is necessarily relevant to the question whether
a competent lawyer could prepare to defend the case in 25 days.”
In this case, the time devoted by the Government to the
assembly, organization, and summarization of the
thousands of written records evidencing the two streams
of checks flowing between the banks in Florida and
Oklahoma unquestionably simplified the work of defense
counsel in identifying and understanding the basic
character of the defendants’ scheme. When a series of
repetitious transactions fit into a single mold, the
number of written exhibits that are needed to define the
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SAOUD v. USA

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 6]
AND DENYING AND DISMISSING § 2255 PETITION [DKT. NO. 1]
pattern may be unrelated to the time that is needed to
understand it.
Id. at 663-64. Furthermore, because the authenticity of the records
was not in dispute, “25 days to consider the question whether those
facts justify an inference of criminal intent [was] not so short
that it even arguably justifie[d] a presumption that no lawyer
could provide the [defendant] with the effective assistance of
counsel required by the Constitution.” Id. at 665. Therefore, the
Supreme Court reversed the court of appeals, holding that the facts
did not warrant a presumption of prejudice. Id. at 666.
Likewise, Saoud’s “case is not one in which the surrounding
circumstances make it unlikely that the defendant could have
received the effective assistance of counsel.” Id. Although Saoud’s
trial attorney stated that he was “completely unprepared” to
address the new charges (Dkt. No. 1 at 4-5), the record does “not
demonstrate that counsel failed to function in any meaningful sense
as the Government’s adversary” or constructively was “prevented
from

assisting

the

accused

during

a

critical

stage

of

the

proceeding.” Cronic, 466 U.S. at 659 n.25, 666.
Saoud’s trial attorney first appeared in the case in January
2013, just one month following the indictment and five months prior
to Saoud’s trial (Crim. No. 1:12cr113, Dkt. No. 19). Trial counsel
12

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SAOUD v. USA

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 6]
AND DENYING AND DISMISSING § 2255 PETITION [DKT. NO. 1]
was

experienced

in

criminal

matters

and

had

five

months

to

familiarize himself with the charges and facts of the case. As
noted,

the

nine

additional

counts

of

the

second

superseding

indictment arose out of the same course of conduct alleged in the
original indictment. Because the authenticity of the few underlying
billing records was not disputed, eight days was sufficient for
Saoud’s attorney to consider the new allegations and devise a
strategy to counter the Government’s theory. See Cronic, 466 U.S.
at 665.
Indeed, the substance of Dr. Swisher’s testimony demonstrates
that a competent attorney could have been effective. Cf. Ragin, 820
F.3d at 619. The testimony comprised just 30 pages of the 1,743page trial transcript. Dr. Swisher testified that he agreed to be
Saoud’s

laboratory

director

for

the

limited

purpose

of

“supervis[ing] the policies, procedures, the lab certification,
[and] mak[ing] sure the staff [were] meeting qualifications” (Crim.
No. 1:12cr113, Dkt. No. 127 at 21-22). Dr. Swisher was not a
dermatologist, and he “never gave permission for [his] name or
numbers to be used for billing,” nor supervised any providers at
Saoud’s practice. Id. at 28, 30. When shown billing records that
bore his name as the provider, Dr. Swisher testified unequivocally
that he had not provided the services. Id. at 31-36. On cross13

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SAOUD v. USA

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 6]
AND DENYING AND DISMISSING § 2255 PETITION [DKT. NO. 1]
examination, Saoud’s attorney utilized the Government’s exhibits
and elicited Dr. Swisher’s admission that he did not know whether
Saoud

himself

was

responsible

for

fraudulently

placing

Dr.

Swisher’s name in the billing records. Id. at 44-46.
Based on these circumstances, the Court finds that whether
Saoud’s attorney effectively addressed the new allegations is
“perfectly amenable to analysis under the Strickland prejudice
test,” and that the relatively short window of preparation time did
not effectively deprive Saoud of counsel. Ragin, 820 F.3d at 619
(quoting Tippins v. Walker, 77 F.3d 682, 686 (2d Cir. 1996)). The
presumption of prejudice is meant to apply only in cases where
“prejudice ‘is so likely that case-by-case inquiry . . . is not
worth the cost,’” James v. Harrison, 389 F.3d 450, 455 (4th Cir.
2004) (quoting Strickland, 466 U.S. at 692). This is not such a
case. Tellingly, Saoud has not even attempted to identify an actual
deficiency in counsel’s performance that would have prejudiced his
defense. Therefore, the Petition must be denied.
IV. CONCLUSION
For the reasons discussed the Court:
1)

ADOPTS the R&R (Civil No. 1:16cv73, Dkt. No. 6; Crim. No.
1:12cr113, Dkt. No. 287); and
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ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 6]
AND DENYING AND DISMISSING § 2255 PETITION [DKT. NO. 1]
2)

DENIES the Petition (Civil No. 1:16cv73, Dkt. No. 1;
Crim. No. 1:12cr113, Dkt. No. 227), and DISMISSES this
case WITH PREJUDICE.
CERTIFICATE OF APPEALABILITY

Pursuant

to

Rule

11(a)

of

the

Rules

Governing

§

2255

Proceedings, the district court “must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant”
in such a case. If the court denies the certificate, “a party may not
appeal the denial but may seek a certificate from the court of
appeals under Federal Rule of Appellate Procedure 22.” 28 U.S.C.
foll. § 2255(a).
The Court finds it inappropriate to issue a certificate of
appealability

in

this

matter

because

Saoud

has

not

made

a

“substantial showing of the denial of a constitutional right.” See 28
U.S.C.

§

2253(c)(2).

A

petitioner

satisfies

this

standard

by

demonstrating that reasonable jurists would find that any assessment
of the constitutional claims by the district court is debatable or
wrong, and that any dispositive procedural ruling by the district
court is likewise debatable. See Miller–El v. Cockrell, 537 U.S. 322,
336–38 (2003). Upon review of the record, the Court concludes that

15

SAOUD v. USA

1:16CV73

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 6]
AND DENYING AND DISMISSING § 2255 PETITION [DKT. NO. 1]
Saoud

has

failed

to

make

the

requisite

showing,

and

DENIES

a

certificate of appealability.

It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and to enter a separate judgment order.
DATED: April 13, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

16