Pellmann v. United States of America

Filing 13

ORDER Denying Motion Pursuant to 28 U.S.C. § 2255 1 , Denying Motion for Order to Convert Writ of Habeas Corpus to Coram Nobis 11 , Denying Certificate of Appealability, and Dismissing Case. (cc: all counsel; via US Mail to Petitioner) ((cef), C. N. Clevert, Jr.)

UNITED STATES DISTRICT COURTS
EASTERN DISTRICT OF WISCONSIN

ROGER A. PELLMANN,
Petitioner,
v.

Case No. 12-C-1242

UNITED STATES OF AMERICA,
Respondent.

ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255 (DOC. 1),
DENYING MOTION FOR ORDER TO CONVERT WRIT OF HABEAS CORPUS TO
CORAM NOBIS (DOC. 11), DENYING CERTIFICATE OF APPEALABILITY,
AND DISMISSING CASE
Roger A. Pellmann is proceeding pursuant to 28 U.S.C. § 2255 challenging his
conviction following a jury trial in United States v. Pellmann, Case No. 10-CR-14, on ten
counts of unlawfully distributing fentanyl in violation of 21 U.S.C. § 841(a)(1), and six
counts of obtaining morphine by misrepresentation, fraud, and deception in violation of 21
U.S.C. § 843(a)(3). The court sentenced Pellmann to 48 months on each count, and
directed that the sentences run concurrently. A three-year period of supervised release
was also imposed. After hiring new counsel for his appeal, Pellmann argued that the
government failed to introduce expert testimony to prove that he had distributed Schedule
II narcotics outside of his professional practice for other than a legitimate medical purpose.
Additionally, Pellmann asserted that the court improperly enhanced his sentence for
obstruction of justice. The Seventh Circuit Court of Appeals affirmed the conviction finding
the “evidence is not only sufficient to support the jury’s conviction, it is overwhelming.”
United States v. Pellmann, 668 F.3d 918, 925 (7th Cir. 2012). For the reasons set forth
below, the pending motion to vacate filed pursuant to 28 U.S.C. § 2255 will be denied.

Before turning to the merits of Pellmann’s § 2255 motion, the court is mindful that
Pellmann has asked that his petition for writ of habeas corpus be converted to a petition
for writ of coram nobis. A writ of error coram nobis is traditionally brought to vacate a
federal conviction where the sentence imposed has already been served. United States
v. Morgan, 346 U.S. 502, 74 S. Ct. 247, 98 L. Ed. 248 (1954). However, it is not available
to an incarcerated prisoner and is “limited to former prisoners who seek to escape the
collateral civil consequences of wrongful conviction.” Owens v. Boyd, 235 F.3d 356, 360
(7th Cir. 2000), as amended (Jan. 22, 2001) (citing United States v. Morgan, 346 U.S. 502,
74 S. Ct. 247, 98 L. Ed. 248 (1954)); See also Guyton v. United States, 453 F.3d 425, 427
(7th Cir. 2006). Because Pellmann was in custody when he filed the pending § 2255
motion and commenced his 36-month term of supervised release on January 21, 2014,
§ 2255 relief is still available because supervised release is classified as a form of custody.
Clarke v. United States, 703 F.3d 1098, 1101–02 (7th Cir. 2013) (emphasis added).
In support of his § 2255 motion, Pellmann asserts that he was denied effective
assistance of counsel. An ineffective assistance of counsel claim “may be brought in a
collateral proceeding under § 2255, whether or not the petitioner could have raised the
claim on direct appeal.” Massaro v. United States, 538 U.S. 500, 504 (2003). Pellmann
can sustain a claim for ineffective assistance of counsel if “(1) his counsel's performance
fell below an objective standard of reasonableness; and (2) the deficient performance so
prejudiced his defense that it deprived him of a fair trial.” United States v. Hall, 212 F.3d
1016, 1021 (7th Cir. 2000) (citing Strickland v. Washington, 466 U.S. 668, 688–94 (1984)).
To this end, Pellmann explains that his conviction was the result of “overreaching
and concocted prosecution” “flowing together with a poorly prepared and inadequate
2

defense of a Medical Doctor” who is guilty of nothing more that careless record-keeping
and overall professional responsibility. First, he attacks counsel’s failure to procure and
utilize medical records of Jacqueline Evans and asserts that the government did not use
an expert because the prosecution knew that his medical treatment was not improper or
illegal.
Pellmann has submitted medical records in support of this claim. According to his
assessment, testimony regarding these records would have established that Evans
requested a referral to an oral surgeon in March of 2009 after her dentist attempted a third
root canal surgery resulting in extreme facial pain consistent with Trigeminal Neuralgia.
While Pellmann referred Evans to Dr. John Edward Bissel, he contends that he continued
with her pain treatment regimen at Bissell’s request. It is Pellmann’s belief that the fentanyl
administered or prescribed to Evans was within FDA approved dosing guidelines and high
doses of pain medication are medically indicated for the treatment of Trigeminal Neuralgia.
Pellmann submits that he made additional referrals, consulted a neurologist, and his
assessment was confirmed by others. He believes a medical expert would have known
that addiction is rare in patients seeking pain relief even with a high does of opioids.
According to Pellmann, he recommended that Dr. V. Misra act as an expert in this case.
The problem with Pellmann’s arguments is that the jury was provided with extensive
testimony and records regarding Evans’s medical history. Evans testified that Pellmann
started prescribing vicodin for her neck and back pain in early 2008 related to injuries that
Pellmann confirmed with MRIs. (No. 10-CR-14, Doc. 33, Tr. 397.)1 Evans conceded that

1

The citation to the docket entry includes a reference to the page of the transcript rather than the page
of the ECF filing.

3

she had “quite a few” prescriptions for controlled substances from Pellmann and that the
evidence from Walgreens indicated that there were more than 140 prescriptions from
September 1, 2007, through August 31, 2009 (an average of six per month). (No. 10-CR14, Doc. 33, Tr. 399.) Notably, there were four occasions when Pellmann provided Evans
with controlled substance prescriptions in her daughter’s name. (No. 10-CR-14, Doc. 33,
Tr. 400.)
Evans considered Pellmann to be her treating physician even though he was an
interventional radiologist. In late 2008 or early 2009 he started prescribing fentanyl for her
migraines. (No. 10-CR-14, Doc. 33, Tr. 402-404.) He came to Evans’s fiance’s home with
an IV bag, lines, syringe, and needle, and administered the fentanyl through an IV. (No.
10-CR-14, Doc. 33, Tr. 405.) In March of 2009, Pellmann gave Evans fentanyl for mouth
pain and abscesses, which began after she was treated by Dr. Ciatti. (No. 10-CR-14, Doc.
33, Tr. 407.) While Dr. Ciatti drained some abscesses and tried to save her tooth, he did
not prescribe fentanyl. (No. 10-CR-14, Doc. 33, Tr. 407, 451.) Pellmann continued to
administer fentanyl to Evans as her tooth was not healing and a nerve fired continuously.
(No. 10-CR-14, Doc. 33, Tr. 409.) She started with injections of fentanyl one-to-two times
per week and the injections were administered at the clinic, her home, or Pellmann’s. (No.
10-CR-14, Doc. 33, Tr. 410-413.)
In 2009, Pellmann supplemented Evans’s fentanyl injections with morphine to help
her sleep. (No. 10-CR-14, Doc. 33, Tr. 414-415.) The injections were administered by
Pellmann or Evans, a registered nurse. (Id.) Evans testified that Pellmann always knew
what she had been given the day before. Notably, she never paid Pellmann for his
services. (No. 10-CR-14, Doc. 33, Tr. 420.) By the time agents searched Evans’s home
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in November of 2009, Evans was using 40 to 50 vials of fentanyl daily. (No. 10-CR-14,
Doc. 33, Tr. 421.) She believed Pellmann was keeping track of the morphine as well, but
did not know how he kept track and had not seen the record. (No. 10-CR-14, Doc. 33, Tr.
423.) The ostensible reason Evans received the fentanyl was treatment of her Trigeminal
Neuralgia, a painful nerve condition, sometimes referred to as suicide disease. (No. 10CR-14, Doc. 33, Tr. 423, 452.) Evans described the pain to Pellmann and told him how
it affected her. (No. 10-CR-14, Doc. 33, Tr. 452.) She said the pain shot past her eye,
across her forehead, and her lips would quiver making it difficult to eat or drink. (No. 10CR-14, Doc. 33, Tr. 453.) Moreover, Evans indicated the pain attacks would last four-toten minutes as often as every forty minutes. (No. 10-CR-14, Doc. 33, Tr. 454.) Neither
vicodin nor the fentanyl patches proved to be effective. (No. 10-CR-14, Doc. 33, Tr. 455.)
Evans testified about her medical conditions and treatment by Drs. Ciatti (No. 10CR-14, Doc. 33, Tr. 407, 450-51), Bissell (No. 10-CR-14, Doc. 33, Tr. 424, 457-60),
Kuemmel (No. 10-CR-14, Doc. 33, Tr. 461-62), Michaels (No. 10-Cr-14, Doc. 33, Tr. 46264), Rauwerdink (No. 10-CR-14, Doc. 33, Tr. 424, 465), Jensen (No. 10-CR,14, Doc. 33,
Tr. 424, 465-67), Junig (No. 10-CR-14, Doc. 33, Tr. 433-440, 496), Diamond (No. 10-CR14, Doc. 33, Tr. 500-02), Misra (No. 10-CR-14, Doc. 33, Tr. 505), and Acevedo (No. 10CR-14, Doc. 33, Tr. 506). She also testified regarding the treatment she received from
Pellmann. According to Evans, the only doctor that knew about the fentanyl was Dr.
Bissell. (No. 10-CR-14, Doc. 33, Tr. 424.) Pellmann accompanied her to her first
appointment, reviewed Dr. Bissell’s x-rays, and talked with Dr. Bissell. (No. 10-CR-14,
Doc. 33, Tr. 457-458.) Dr. Bissell, in consultation with Pellmann, decided to extract the
tooth. (No. 10-CR-14, Doc. 33, Tr. 458.) Dr. Bissell also performed a bone graft because
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Evans had osteomyelitis, an infection into the bone. (No. 10-CR-14, Doc. 33, Tr. 460.)
Evans did not ask Dr. Bissell for pain medications. (No. 10-CR-14, Doc. 33, Tr. 460.) Dr.
Acevedo diagnosed Evans with Trigeminal Neuralgia and Occipital Neuralgia, which Evans
described as the firing of a nerve near the base of your head. (No. 10-CR-14, Doc. 33, Tr.
506.) Two weeks prior to trial, Evans saw Dr. Misra, a neuorologist, and made plans for
a Botox block. (No. 10-CR-14, Doc. 33, Tr. 505.) Dr. Misra prescribed tegretol. (No. 10CR-14, Doc. 33, Tr. 507.)

In December of 2009, Dr. Junig treated Evans for her

dependence on opiates, and wrote a prescription for topamax, an antiseizure medication
that is not a controlled substance, for migraines. (No. 10-CR-14, Doc. 33, Tr. 321.)
Evans then saw Dr. Michaels and Kuemmel on multiple occasions because the area
treated by Dr. Bissell was not healing. (No. 10-CR-14, Doc. 33, Tr. 461-462.) She
purposefully did not disclose the fentanyl use to the other doctors when she completed the
medical history for the other doctors. (No. 10-CR-14, Doc. 33, Tr. 424. ) She went to Dr.
Jensen to see if she could get the tooth to heal, but Pellmann never referred her to a pain
specialist. (No. 10-CR-14, Doc. 33, Tr. 430.) Ultimately, Evans saw six different dental
professionals, and each of those multiple times. (No. 10-CR-14, Doc. 33, Tr. 467.) Evans
testified that Pellmann always accompanied her for the appointments and typically
discussed her care with the providers. (No. 10-CR-14, Doc. 33, Tr. 493.)
According to Evans’s testimony, Pellmann never prescribed the fentanyl or
morphine for recreational use, but always for her pain. (No. 10-CR-14, Doc. 33, Tr. 509.)
She testified that Pellmann treated her headaches, sinus infections, bronchitis, and
migraines.

(No. 10-CR-14, Doc. 33, Tr. 447-448.)

He even treated her daughter,

Gabriella, ordered an MRI, and treated an “ankle, a foot or something, and maybe
6

sinuses.” (No. 10-CR-14, Doc. 33, Tr. 447-448.) Indeed, he first ordered an MRI of
Evans’s back as early as 2005, and he referred her to a chiropractor and sat in the
appointment. (No. 10-CR-14, Doc. 33, Tr. 446-447.) Pellmann diagnosed Evans’s
Trigeminal Neuralgia sometime between her appointments with Drs. Ciatti and Bissell.
(No. 10-CR-14, Doc. 33, Tr. 468.) He also provided Evans with dosing charts, discussed
the risk of abuse with those drugs, monitored her blood pressure, and asked her about her
pain levels. (No. 10-CR-14, Doc. 33, Tr. 470-472.) He performed a breast ultrasound in
August of 2009 and also administered an ultrasound of her thyroid. (No. 10-CR-14, Doc.
33, Tr. 482.) There was never a day that they did not discuss her condition, and he
prescribed anti-inflammatories such as toradol. (No 10-CR-14, Doc. 33, Tr. 491-492.)
Additionally, Pellmann’s lawyer introduced medical records via a stipulation
reflecting Evans’s treatment by Drs. Bissell, Rauwerdink, and Michaels. (No. 10-CR-14,
Doc. 34, Tr. 628-29, Exs. 118-120.) Dr. Jensen testified regarding the procedures he
supervised, including a bone graft. (No. 10-CR-14, Doc. 32, Tr. 42.) Pellmann himself
testified about Evans’s medical condition as well as his own diagnosis and treatment, and
acknowledged that he did not document this diagnosis or treatment. (No. 10-CR-14, Doc.
34, Tr. 651-58, 684-86.) That Pellmann now feels he did not make a good witness
because he was anxious does not render counsel’s decision not to call another witness
ineffective.
Pellmann’s arguments in support of his claim of ineffective assistance of counsel
cite evidence received after the trial. However, counsel cannot be ineffective for failing to
produce documents that did not exist. Moreover, one of the documents is dated July 23,
2010, which is in contravention of the court’s instruction after the guilty finding that
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Pellmann was to “have no contact whatsoever with Miss Evans.” (No. 10-CR-14, Doc. 35,
Tr. 912). And, while Pellmann argues that the government didn’t use an expert because
it knew his treatment was proper, it is apparent on the record that the governmet didn’t use
an expert because it didn’t need one. On appeal, the Seventh Circuit rejected Pellmann’s
argument that the government needed expert testimony to prove its case where a
physician-defendant was charged with violating § 841(a)(1). Pellmann, 668 F.3d at 924.
Indeed, a jury can reasonably find that a doctor prescribed controlled substances not in the
usual course of professional practice or for other than a legitimate medical purpose from
adequate evidence, including lay witness testimony respecting the facts and circumstances
of the drugs at issue. Id. (quoting United States v. Armstrong, 550 F.3d 382 (5th Cir.
2008), overruled on other grounds by United States v. Guillermo Balleza, 613 F.3d 432,
433 (5th Cir. 2010)).
Ultimately, counsel’s performance was not deficient inasmuch as Evans discussed
her medical history, diagnoses and treatment in detail and Pellmann discussed his
diagnosis and treatment. Evans testified that Pellmann was her treating physician and had
treated her for everything from sinusitis to back pain. She described her discussions with
Pellmann and his discussions with her other doctors. On the other hand, Pellmann himself
discussed Evans’s condition and treatment, and Pellmann’s attorney introduced Evans’s
medical records.
The expert Pellmann says he would have called, Dr. Misra, saw Evans for the first
time two weeks prior to her testimony. However, Dr. Misra’s testimony would not have
negated the fact that Evans concealed the fentanyl use from her treating physicians, other
than Pellmann, and that the overwhelming evidence made clear that the drugs that
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Pellmann administered to Evans were not provided in the usual course of professional
practice.
Between March 2009 through November of 2009, Pellmann–a radiologist–operating
an imaging clinic and a vein and laser clinic, administered approximately 14,000 vials of
fentanyl and substantial quantities of morphine to Evans. (No. 10-CR-14, Doc. 34, Tr. 56667, Ex. 128; Tr. 561-62, 722, 727, Ex. 126 and 127.) He had no records of treating Evans
in 2009, and did not document the quantities, proportions or frequency of the narcotics he
provided. These medications were administered to Evans in her home or Pellmann’s home,
and Pellmann allowed Evans to give herself injections as frequently as every 40 or 50
minutes. Notably, no other physician prescribed fentanyl or morphine.2
Next, Pellmann asserts that counsel was ineffective in failing to protect him “from
due process abuses by the prosecution.” He maintains that there was “falsification of
evidence” by DEA Diversion Investigator Kathy Federico. Federico claimed that her search
on January 14, 2010, recovered 144 ampules of fentanyl from a locked cabinet in the
clinics. (No. 10-CR-14, Doc. 32, Tr. 146.) However, Pellmann says he inspected the
cabinet on January 14, 2010, and insists that 271 remained. He locked the cabinet and
gave the keys to the DEA., leading him to surmise that the DEA agents illegally possessed
127 ampules. (No. 10-CR-14, Doc. 32, Tr. 145-146, 181-83.)
While Pellmann offers no support for these allegations, he also fails to explain how
the discrepancy of 127 fentanyl ampules would warrant reversal of his conviction that was
otherwise supported by “substantial evidence.” The evidence presented at trial included

2

Dr. Jensen testified that he adm inistered fentanyl during a procedure but did not write Evans a
prescription for future use.

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Pellmann’s testimony, Evans’s testimony, records from Walgreens, and the results of
searches that were conducted at Pellmann’s clinic and residence.
In further support of his claim of prosecutorial abuse, Pellmann argues that Federico
should not have been allowed to testify that Evans was an addict, suggest that he falsified
Evans’s medical records after his arrest, or otherwise transposed the names of Drs.
Jensen and Bissel when she testified regarding conversations with Pellmann about
Evans’s pain management treatment. However, Pellmann misstates Federico’s testimony
inasmuch as Federico did not testify that Evans was an addict but rather testified that
Pellmann told her during the November 12, 2009, search of his clinic that he was worried
about Evans’s addiction. (No. 10-CR-14, Doc. 32, Tr. 138-39.) On cross-examination by
defense counsel respecting this point, Federico again testified that it was Pellmann who
used the word “addiction.” (No. 10-CR-14, Doc. 32, Tr. 163.) Along the same lines,
Federico testified that Pellmann admitted his treatment of Evans was outside the scope of
his practice and that he did not maintain a patient file for his diagnosis and treatment of
Evans prior to the search of his clinic on November 12, 2009. (No. 10-CR-14, Doc. 32, Tr.
139, 684-86.) Further, Federico’s “suggestion” that Pellmann falsified records was really
testimony regarding a stipulation that the parties reached concerning the progress notes
that Pellmann e-mailed to his lawyer on January 15, 2010–after his arrest–that were not
received by the government until March 4, 2010. (No. 10-CR-14, Doc. 18 at ¶ 20.) Finally,
Federico’s testimony respecting Dr. Jensen was not an issue at trial but rather at
sentencing where the court’s finding that Pellmann’s false testimony resulted in a two-level
enhancement for obstruction. Thus, it is unclear to this court how Dr. Bissell’s testimony
would have helped Pellmann, particularly considering that the Seventh Circuit addressed
10

the testimony regarding Dr. Jensen on appeal and affirmed the enhancement finding that
the district court was in the best position to assess Pellmann’s credibility. Pellmann, 668
F.3d at 927. Hence, counsel’s performance was not deficient with respect to Federico and
Pellmann cannot establish prejudice.
Pellmann further asserts that his lawyer failed to challenge the credibility of DEA
Special Agents Greg Connor and Jill Ceran. He notes that these agents photographed a
bar-coded box of medical supplies in his bathroom and then photographed the same barcoded box in the living room, with its contents scattered all over the furniture. Pellmann
maintains these agents also photographed the trash from the disposal containers and
claimed that was how they found the premises. Additionally, he submits that these officers
stole his camcorder on November 12, 2009, then returned it to his clinic on January 14,
2010. Pellmann also contends, the agents removed a lab coat from a hanger, rolled into
a ball, and stuffed in the corner of his closet.
Notably, Pellmann does not complain that the items in the photographs were not
found in his residence or in the garbage. Nor does he complain that the camcorder or the
lab coat were used against him. Moreover, the government only called Greg Connor
whose testimony was limited to his involvement in the November 12, 2009, search.
Moreover, the parties stipulated that the exhibits introduced through Connor were “items
and/or photographs of items that were found by federal agents at the Defendant’s
residence located in New Berlin, Wisconsin on November 12, 2009.” ( No. 10-CR-14, Doc.
33, Tr. 216.) Connor testified where he found the items. For example, he explained that
the IV bags were pulled out and placed in one location on the floor for the photograph.
(No. 10-CR-14, Doc. 33, Tr. 225.) Defense counsel cross-examined Connor concerning
11

how the items appeared when he and Ceran found them. (No. 10-CR-14, Doc. 33, Tr.
231-233.) Consequently, the court finds that Pellmann was not subjected to undue
prejudice with respect to Connor’s testimony or that defense counsel’s representation was
substandard with regard to Connor’s testimony.
Other issues cited by Pellmann include his counsel’s instruction that he not possess
any medication which caused him to dispose of 40 vials of midazalom.

Pellmann

maintains that counsel did nothing to correct the impression that these medications weren’t
accounted for or that addiction was synonymous with withdrawal. Additionally, according
to Pellmann, he wanted counsel to subpoena Lisa Evans to reveal that “she was the
envious drug seeking sister-in-law who perpetrated a malicious hoax.” (No. 12-C-1242,
Doc. 2 at p. 12.) Pellmann further asserts that subsequently, counsel failed to inform the
court that Ms. McGrath posted some communication on Facebook following her testimony
at trial and that the government violated HIPPA inasmuch as the Journal/Sentinel
published an article revealing that he treated Evans with narcotics for an impacted tooth.
Lastly, Pellmann charges that Agent Reid’s analysis of the number of prescriptions for
Evans never took into account that the dosing was within FEDA guidelines and the quantity
never exceeded a 3-to-7 day supply.
With respect to counsel’s instructions to Pellmann that he dispose of the
medications, it appears that the instruction was given after the trial in June of 2010, while
Pellmann was on bond after his conviction. Hence, counsel’s performance had no impact
on Pellmann’s conviction. Nor was counsel deficient in failing to call Lisa Evans, who was
not a witness, for the sole purpose of impeaching her. Pellmann’s proposed impeachment
of Lisa Evans did not impact the outcome of his trial because she did not testify. Moreover,
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Lisa Evans’s motives for contacting the government do not undermine the strength of the
government’s case. Instead, they may simply explain why the government launched its
investigation. Similarly, Pellmann’s argument regarding the Facebook post fails because
Pellmann has not provided evidence that there was a post or that a Facebook post was
seen by any juror. Additionally, the court instructed each witness not to discuss his or her
testimony with anyone and also instructed the jury not to discuss the case, do any research
or “get on any social networking blog or web site or means of communication.” (No. 10CR-14, Doc. 32, Tr. 168.) Jurors were further instructed to alert the court to anyone who
attempts to discuss the case with them. (Id.)
Pellmann’s arguments regarding DEA Investigator Laura Reid fail because
Walgreens’s data was admitted pursuant to a stipulation and Pellmann’s lawyer crossexamined Reid about the weaknesses in her testimony. (No-Cr-14, Doc. 32, Tr. 85-86.)
For example, Reid had not searched all pharmacies that patients had used to fill their
prescriptions, thereby skewing her statistics with respect to Evans.
Last, Pellmann focuses on counsel’s failure to object to the jury instructions for the
alleged violations of 21 U.S.C. § 843(a)(3). The section provides:
It shall be unlawful for any person knowingly or intentionally ... to acquire or
obtain possession of a controlled substance by misrepresentation, fraud,
forgery, deception or subterfuge.
21 U.S.C. § 843(a)(3). Accordingly, the jury was instructed as follows:
OBTAINING MORPHINE BY MISREPRESENTATION,
FRAUD, AND DECEPTION
21 U.S.C. § 843(a)(3)
To sustain the charge of knowingly and intentionally obtaining a
controlled substance by misrepresentation, fraud or deception, as charged

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in Counts Eleven through Sixteen, the government must prove the following
propositions as to each count:
First, that Roger A. Pellmann, M.D., knowingly and intentionally
acquired or obtained morphine sulfate as charged;
Second, that Roger A. Pellmann, M.D., did so by
misrepresentation, fraud, or deception; and
Third, that at the time of the making of the representation or
representations, Roger A. Pellmann knew the representation
or representations were false, fraudulent or deceptive.
If you find from your consideration of all of the evidence that each of
these propositions has been proven beyond a reasonable doubt as to the
count you are considering, then you should find the defendant guilty of that
count. If on the other hand, you find from your consideration of all of the
evidence that any one of theses propositions has not been proven beyond
a reasonable doubt as to the count you are considering, then you should find
the defendant not guilty as to that count.
(No. 10-CR-14, Doc. 21, Tr. 15.)
Pellmann argues that counsel should have disclosed to the jury that he was
authorized to acquire controlled substances through the DEA’s registration of him as an
individual practitioner rather than a business. All that was required of him was that he use
the forms to acquire the substances. Pellmann further argues that counsel should have
known that a conviction requires some “misrepresentation, fraud, forgery, deception, or
subterfuge” and there was no showing that he ever acquired or obtained possession
illegally. See United States v. Wilbur, 58 F.3d 1291 (8th Cir. 1995).
The court’s instruction was consistent with the code and properly advised the jury
that the government must prove that Pellmann knowingly obtained morphine by
“misrepresentation, fraud, or deception.”

The evidence at trial was sufficient for a

reasonable jury to return a guilty verdict because it was shown that Pellmann wrote

14

prescriptions for morphine falsely indicating on DEA Form 222 that they were for office use.
These prescriptions were filled at Ye Olde Pharmacy, and morphine was also ordered from
Anda Pharmaceutical and McKesson Corporation, through Pellmann’s medical clinic to
make it appear that Pellmann was using morphine in his practice. Pellmann acknowledged
at trial that he did not use morphine in the clinic and admitted to injecting himself and Evans
with the morphine. Pellmann’s clinic staff also confirmed that morphine was not used in the
clinic.
Because Pellmann’s § 2255 motion fails on the merits, the court must decide
whether to issue a certificate of appealability. Rule 11(a), Rules Governing Section 2255
Proceedings. Pellmann’s motion does not make a substantial showing that jurists of reason
could reasonably disagree with the court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement to
proceed further. Miller–El v. Cockrell, 537 U.S. 322, 327 (2003). Therefore,
IT IS ORDERED that Roger Pellmann’s § 2255 motion is denied.
IT IS FURTHER ORDERED that this case is dismissed.
IT IS FURTHER ORDERED that a certificate of appealability is denied.
Dated at Milwaukee, Wisconsin, this 18th day of May, 2015.
BY THE COURT

/s/ C.N. Clevert, Jr.
C.N. CLEVERT, JR.
U.S. DISTRICT JUDGE

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