Opinion
CRIMINAL 7:18-cr-2-KKC-CJS Civil 7:22-cv-79-KKC-CJS
02-29-2024
UNITED STATES OF AMERICA, Plaintiff, v. JACKSON NOEL, Defendant.
ORDER AND REPORT AND RECOMMENDATION
CANDACE J. SMITH, UNITED STATES MAGISTRATE JUDGE
Jackson Noel, proceeding through counsel, has filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (R. 219) and a Motion to Amend his § 2255 Motion (R. 232). The Government has filed a Response to Noel's § 2255 Motion (R. 231) and a Response to his Motion to Amend (R. 234). Noel has filed a Reply. (R. 235). Pursuant to local practice, this matter has been referred to the undersigned for the preparation of a report and recommendation under 28 U.S.C. § 636(b). For the reasons set forth below, it will be recommended that Defendant Noel's § 2255 Motion be denied.
I. FACTUAL AND PROCEDURAL HISTORY
In September 2019, a jury convicted Noel of one count of conspiring to distribute or dispense pills containing oxycodone or oxymorphone in violation of 21 U.S.C. § 846. (See R. 111). On September 30, 2020, Noel was sentenced to 120 months of imprisonment with 3 years of supervised release to follow. (See R. 187; R. 190). The Sixth Circuit affirmed his conviction and sentence on November 8, 2021. (R. 217). Noel did not file a petition for writ of certiorari with the United States Supreme Court.
On July 30, 2022, Noel filed the instant § 2255 Motion. (R. 219). Noel's Motion challenges his conviction based on the following six grounds of alleged ineffective assistance of counsel: 1) counsel failed to object or otherwise limit “extremely damaging” opinion testimony from a non-expert Government witness; 2) counsel failed to investigate and present evidence countering the Government-elicited testimony that Noel was charging “exorbitant prices” for controlled substances; 3) counsel failed to call the defense expert Noel had retained to counter the Government's witnesses; 4) counsel called his client to the stand without adequate preparation; 5) counsel failed to request or review discovery from the Government regarding other pharmacists who had filled prescriptions for the doctor at issue; and 6) counsel's opening statement failed to state Noel's defense, made prejudicial statements against his client, and “asserted an irrelevant defense that was not adequately presented during the defense case.” (R. 219 at Page ID 3475).
Following the filing of Noel's § 2255 Motion, the United States filed a Motion Finding Waiver of the Attorney-Client Privilege so that it might contact Noel's trial defense counsel, Attorney James Cagle. (R. 223). Noel opposed the Motion, arguing that based on an American Bar Association (“ABA”) Ethics Opinion, the Court should supervise any communications between the United States and his former counsel. (R. 223). The Court ultimately found that Noel had impliedly waived his attorney-client privilege by filing his § 2255 Motion premised on the ineffective assistance of counsel, and the ABA Opinion was not binding on this Court. (R. 230). Following the entry of that Order, the United States responded to Noel's § 2255 Motion. (R. 231). On February 21, 2023, the Court entered an Order that permitted Noel to file a Reply to the United States' Response to his § 2255 Motion no later than March 23, 2023. (R. 233). Noel timely filed a Reply addressing that Response. (R. 235).
Also pending before the Court is Noel's Motion to Amend or Correct his original § 2255 Motion. (R. 232). Noel is seeking to add a claim that the U.S. Supreme Court's decision in Ruan v. United States, 142 S.Ct. 2370 (2022) renders his sentence in violation of the Constitution or laws of the United States. (Id.). Noel argues that this amendment is timely because Ruan was decided on June 27, 2022, and according to 28 U.S.C. § 2255(f)(2) and (3), he has until June 27, 2023 to assert and preserve a claim under this change in the law. (Id. at Page ID 3592). The United States filed a Response not directly opposing Noel's Motion to Amend but addressing the Ruan argument on its merits. (R. 234).
II. ANALYSIS
Under 28 U.S.C. § 2255(a), a federal prisoner may seek relief on grounds that: his conviction or sentence violated the Constitution or laws of the United States; the court lacked jurisdiction to impose the sentence; the sentence exceeded the maximum authorized by law; or the sentence is otherwise subject to collateral attack. To succeed on a § 2255 motion alleging constitutional error, a federal prisoner “must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)). To obtain relief for a non-constitutional error, a federal prisoner “must establish a ‘fundamental defect which inherently results in a complete miscarriage of justice,' or, an error so egregious that it amounts to a violation of due process.” Id. (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990)). In sum, a federal prisoner must allege in his § 2255 motion that: (1) his conviction was the result of an error of constitutional magnitude; (2) his sentence was imposed outside of statutory limits; or (3) there was an error of law or fact so fundamental as to render the proceedings invalid. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006) (citing Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). A federal prisoner must prove his allegations by a preponderance of the evidence. Id. at 964.
A. Procedural Default
The United States first argues that grounds 1, 2, and 5 are “simply attempts to shoehorn appellate issues into a motion to vacate” and because Noel did not raise the issues on direct appeal, they are not permitted to be considered here. (R. 232 at Page ID 3577). Thus, before considering the merits of Noel's claims for ineffective assistance of counsel, the Court will evaluate whether Noel has procedurally defaulted grounds 1, 2, and 5.
It is well-settled that a petitioner's failure to raise a claim at trial or on direct appeal results in a procedural default, or waiver, of the claim in a § 2255 proceeding, absent a showing of both cause and actual prejudice. Murr v. United States, 200 F.3d 895, 900 (6th Cir. 2000) (quoting United States v. Frady, 456 U.S. 152, 164-65, 167 (1982)). The United States cites to Mitts v. United States as an example where the court rejected claims from a petitioner that were titled as claims of ineffective assistance of counsel but “could have been, or were, raised on direct appeal.” No. 3:07-CR-40, 2013 WL 1856460, at *6 (W.D. Ky. Feb. 22, 2013). In Reply, Noel argues that Mitts is distinguishable because the defendant's counsel raised objections to the introduction of evidence that the defendant contested in his § 2255, and Noel's counsel did not. (R. 235 at Page ID 3602). Noel argues that his § 2255 Motion is not seeking to argue the sufficiency of the evidence of TFO Dalrymple's testimony (ground 1), the relative cost of the drugs (ground 2), and the testimony of Jason Neal (ground 5). (Id. at Page ID 3603). Instead, Noel asserts that Attorney Cagle's failure to make objections to those introductions was ineffective assistance of counsel, and any discussion of the evidence in his Motion is simply demonstrating how the evidence prejudiced him. (Id. at Page ID 3605).
To the extent that Noel is repackaging claims that could have been raised on direct appeal but were not, the United States is correct that those claims would be procedurally defaulted. See Murr, 200 F.3d at 900. But in Grounds 1, 2, and 5, Noel's Motion states how he believes his counsel was ineffective. (R. 219 at Page ID 3483-95, 3500, 3509). He includes specific citations from the record where he believes his counsel erred, and focuses on how his counsel's performance prejudiced him (i.e., resulted in testimony that should not have been admitted, in his view). Noel's grounds are distinguishable from Mitts, where the court declined to address claims from the defendant that included challenges to “the proper standard on which to determine his guilt or innocence”; errors in the jury instructions; the United States' failure to meet their burden of proof; and the irrelevance of a witness's testimony. Mitts, 2013 WL 1856460 at *1-2, 6. The court found that none of these grounds raised a claim for ineffective assistance of counsel, and because they all could have been or were raised on direct appeal, the court would not consider them. Id. at *6. While there are underlying evidentiary issues at the heart of his grounds, Noel at least makes the argument that competent counsel should have made proper objections or investigated the issues more thoroughly so he could make proper objections. The argument for each of the grounds does vary as to the depth in which Noel focuses on his counsel's performance but overall, assertion of these grounds as being ineffective assistance by his trial counsel does not appear to be an attempt to avoid procedural default for claims that should have been raised on direct appeal. Thus, each ground for relief will be evaluated as a claim for ineffective assistance of counsel.
B. Ineffective Assistance of Counsel
When assessing an ineffective assistance of counsel claim, the Court must consider “whether counsel's conduct so undermined the proper function of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). To establish he has been deprived of effective assistance, a defendant must show that counsel's performance was both constitutionally deficient and prejudicial. Id.
To prove deficient performance, a defendant must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. A defendant meets this burden by showing “that counsel's representation fell below an objective standard of reasonableness” as measured by “prevailing professional norms . . . considering all the circumstances.” Id. at 688. Judicial scrutiny of counsel's performance, however, is “highly deferential,” consisting of a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. When assessing counsel's performance, the Court must make “every effort . . . to eliminate the distorting effects of hindsight . . . and to evaluate the conduct from counsel's perspective at the time.” Id. The tactical decisions of a defendant's trial counsel are presumed to be part of sound trial strategy and therefore will not be subject to successful attack absent a defendant overcoming such presumption. Darden v. Wainwright, 477 U.S. 168, 185-87 (1986); see also McQueen v. Scroggy, 99 F.3d 1302, 1311 (6th Cir. 1996), abrogated on other grounds by In re Abdur'Rahman, 392 F.3d 174 (6th Cir. 2004).
To prove prejudice, a defendant “must show 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. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Thus, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691. With the preceding overarching standards in mind, each of Noel's allegations are addressed below.
1. Ground 1 - Failure to Object to Testimony
In Noel's first ground for relief, he argues that Attorney Cagle failed to object to the “improper and improperly noticed” expert opinion testimony of Drug Enforcement Agency (“DEA”) Task Force Officer Richard Dalrymple (“TFO Dalrymple”).(R. 219 at Page ID 3483). He argues that the Government agreed at a pretrial bench conference that TFO Dalrymple would not be “rendering an opinion as to anything,” instead simply providing background into pharmaceutical investigations generally. (Id.). Noel argues that during the trial, TFO Dalrymple offered expert opinions that went unchallenged by Attorney Cagle without giving proper notice under Federal Rule of Criminal Procedure Rule 16(a)(1)(G). (Id. at 3484-85).
For clarity, the Court notes that DEA TFO Richard Dalrymple and DEA Special Agent Iain Dalrymple were both witnesses in this case. (R. 114). Noel only challenges his attorney's performance during the testimony of TFO Richard Dalrymple.
Noel cites to United States v. Lopez-Medina to support the argument that reversal is appropriate when a jury is not properly instructed as to the “dual role” of law enforcement testifying as both a fact witness and an expert witness. (R. 219 at Page ID 4396) (citing United States v. Lopez-Medina, 461 F.3d 724 (6th Cir. 2006)). In Lopez-Medina, the Sixth Circuit found plain error where the trial court allowed DEA agents involved in the case to testify as both fact and expert witnesses without providing proper cautionary jury instructions or a clear demarcation between the fact testimony and expert opinion testimony. Id. at 745.
In its Response, the United States argues that Attorney Cagle's decision not to object was a strategic one, as the United States “properly qualified” TFO Dalrymple to testify as to his training and experience in drug diversion cases. (Id. at Page ID 3582). The United States notes that the Sixth Circuit has held that a failure to provide Rule 16 disclosures for law enforcement testimony based on training and experience does not warrant a reversal without a finding of abuse of discretion by the trial court. (Id. at 3584) (citing United States v. White, 563 F.3d 184 (6th Cir. 2009) and United States v. Quinn, 230 F.3d 862, 866 (6th Cir. 2000)). The United States also argues that even if Noel could show that Attorney Cagle's strategic decisions were deficient, he cannot show prejudice, because other witnesses also gave similar testimony. (Id.).
As Strickland cautions, “the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” 466 U.S. at 690; see also O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). Although the Court must be highly deferential when scruitinizing an attorney's performance, an act is not objectively reasonable unless it “might be considered sound trial strategy.” Strickland, 466 U.S. at 689.
Noel's case differs from Medina-Lopez, White, and Quinn in one significant way. In each of the cases offered by the parties addressing the appropriateness of “dual-role” testimony of law enforcement, the officers were directly involved with either the traffic stop leading to the criminal charges or an investigation into the defendant's criminal activity. See Medina-Lopez, 461 F.3d at 730-35 (explaining the agents' involvement in the investigation into defendant and coconspirators); White, 563 F.3d at 190 (explaining how the testifying officers performed the initial traffic stop of the defendants before testifying at trial to “the tools of the drug trade”); Quinn, 230 F.3d at 866 (permitting testimony regarding the amount of crack cocaine found at the traffic stop and fingerprint testing from the officer that conducted the traffic stop). As the United States notes, TFO Dalrymple had no direct involvement in the investigation of Noel's pharmacy and did not offer testimony on the specific facts of the case, meaning he could not have served in a “dual-role” as a fact and expert witness. (R. 231 at Page ID 3580).
Rule 701 of the Federal Rules of Evidence states that if a lay witness is not testifying as an expert, their opinion testimony is limited to opinions that are “(a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed.R.Evid. 701. At trial, the presiding District Judge permitted TFO Dalrymple's testimony “based on his training and experience” as background into diverted pharmaceutical investigations. (R. 149 at Page ID 1467). In a discussion before TFO Dalrymple's testimony began, Attorney Cagle stated that he was “not going to waive that [he wouldn't] object, because [he] read some of that kind of testimony before and it looks like an opinion ....”. (Id.). Despite that statement, Attorney Cagle did not object to any of TFO Dalrymple's testimony. (Id.). Noel takes issue with specific opinions TFO Dalrymple rendered regarding his definition of “pill mills”; “red flags” that a pharmacist “should be able to see”; and his interpretation of what duty the relevant Code of Federal Regulations places on pharmacists. (Id. at 3486).
The Sixth Circuit has stated that a decision not to object to testimony can be viewed as a strategic one. United States v. Cobbs, 233 Fed.Appx. 524, 541 (6th Cir. 2007) (“Indeed, [counsel] may have decided not to request a cautionary instruction as a mattery of strategy to avoid elevating [officer's] testimony to expert status before the jury.”).Here, both parties note that at trial, Attorney Cagle had a copy of the Government's notice of expert testimony of TFO Dalrymple from another criminal case. Noel argues this is evidence that Attorney Cagle knew the United States considered TFO Dalrymple's testimony was that of an expert, and should have objected. (R. 219 at Page ID 3484-85). The United States argues that this means Attorney Cagle could not have been “surprised” by the substance of TFO Dalrymple's testimony, and instead was evidence that TFO Dalyrmple was properly qualified to give these opinions and thus reasoning for Attorney Cagle not to object. (R. 31 at Page ID 3582).
Like the previously noted cases, the officer providing expert testimony in Cobbs also participated in the investigation of the defendant. While he testified as an expert on “tools of the trade” of drug traffickers, he also interviewed the defendant following his arrest. 233 Fed.Appx. at 529-30.
On one hand, Attorney Cagle was aware that TFO Dalrymple was not involved in Noel's case and that TFO Dalrymple was likely to give expert opinions based on the disclosure he had from another criminal case. On the other, Attorney Cagle could have withheld his objections to prohibit drawing more attention to TFO Dalrymple's testimony. Given the deferential standard by which Attorney Cagle's actions must be judged, his actions were not so unreasonable as to be deficient performance. Strickland, 466 U.S. at 689. However, even if Attorney Cagle's actions did constitute deficient performance, Noel cannot show that these actions prejudiced him.
The jury instructions provided at Noel's trial were unlike the instructions the Sixth Circuit took issue with in Lopez-Medina. In that case, the Sixth Circuit held that the provided general jury instructions were insufficient to guard the jury against mistakenly weighing opinion testimony as fact and did not instruct the jury that they were free to reject the opinions given. 461 F.3d at 744 (finding the jury instruction insufficient where the instruction simply read that the testimony of government agents “is not entitled to any greater weight,” and that “it is quite legitimate for defense counsel to try to attack the credibility of a law enforcement agent witness on the grounds that his or her testimony may be colored by a personal or professional interest in the outcome of the case.”). But here, the Court adopted specific jury instructions for witnesses like TFO Dalrymple that offered both facts and opinions. (R. 112 at Page ID 798). The instructions cautioned the jury that they “[did] not have to accept any of the opinions of these witnesses” and “[i]n deciding how much weight to give them, [the jury] should consider the qualifications of the witnesses and how they reached their conclusions along with the other factors discussed in [the] instructions for weighing the credibility of witnesses.” (Id.). The jury was also instructed that they alone would decide how much of a witness's testimony to believe and how much weight it deserved. (Id.). Thus, even if Attorney Cagle should have objected to TFO Dalrymple's testimony as improper, the jury instructions cured the error. See, e.g., Medina-Lopez, 461 F.3d at 744 (holding that a proper jury instruction would guard against the jury mistakenly weighing opinion testimony as if it were fact and instruct the jury that they are free to reject the opinions given).
Further, as the United States notes, multiple witnesses discussed red flags in the context of diverted pharmaceuticals, including Noel himself. (R. 231 at Page ID 3583) (citing transcript of testimony from Lori Moles (R. 150 at Page ID 1759, 70-71); David Lucas (R. 151 at Page ID 1860-61, 80-81, 91-92); Jason Neal (R. 151 at Page ID 1896-98, 1900); Jack Luikhart (R. 151 at Page ID 1902); Kyle Sizemore (R. 151 at Page ID 1910, 14, 30-32); and Jackson Noel (R. 152 at Page ID 2017, 28, 37, 50-53, 60, 66-67, 75-77, 80)). Likewise, witnesses other than TFO Dalrymple discussed what pill mills are (R. 150 at Page ID 1650 (Lora Kicklighter); R. 152 at Page ID 2111 (Diana Eads)), or testified as to the corresponding responsibility, or duty, that the relevant Code of Federal Regulations places on pharmacists (R. 151 at Page ID 1886-87 (David Lucas), 1898 (Jason Neal), 1931 (Kyle Sizemore)). Therefore, it cannot be argued that Noel was prejudiced by Attorney Cagle's failure to object to TFO Dalrymple's testimony because the jury also received that information through other witnesses that Noel did not object to at trial or raise here in his § 2255 Motion. Because Noel cannot show that Attorney Cagle was deficient or that Noel was prejudiced, he has not met the Strickland standard of ineffective assistance of counsel on this ground.
2. Ground 2 - Failure to Investigate and Present Evidence
In his second ground, Noel argues that Attorney Cagle failed to investigate and present evidence at trial that countered the Government's assertions that the prices of drugs at Noel's pharmacy, Buffalo Drugs, were “excessively high.” (R. 219 at Page ID 3499-3500). Counsel may be found constitutionally ineffective for failing to “make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691; see also Howard v. United States, 743 F.3d 459, 468 (6th Cir. 2014). A defendant has the burden of demonstrating by a preponderance of evidence that counsel's performance was inadequate, Pough, 442 F.3d at 964, which requires more than conclusory allegations. See Wogenstahl v. Mitchell, 668 F.3d 307, 335 (6th Cir. 2012) (citing Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998); see also Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972) (finding no evidentiary hearing warranted where habeas petitioner “supplied no factual material upon which to test the validity of his conclusions . . .”); O'Malley v. United States, 285 F.2d 733, 734 (6th Cir. 1961) (“Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing.”). In other words, a defendant must provide “sufficiently precise information as to the nature and probable effect that would have been obtained had counsel undertaken the desired investigation.” Crawford v. United States, No. 04-cv-71543, 2008 WL 2948055, at *5 (E.D. Mich. July 31, 2008) (citing United States v. Farr, 297 F.3d 651, 658-59 (7th Cir. 2002)).
Noel argues that the drug prices were actually below what other pharmacies were charging, and that due to Attorney Cagle's failure to investigate and challenge this issue, he received ineffective assistance of counsel. (R. 219 at Page ID 3500). Noel cites to an affidavit and report from Chris Killmeier, R. Ph., which indicates that “73.7% of the time Buffalo [Drugs]'s cash prices for controlled substances sold to the [drug trafficking organization] members were lower than other pharmacies.” (Id. at Page ID 3526). Noel also compares this case to the trial of Assad Nasr, where the defense counsel presented evidence of lower than average cash prices. (Id. at Page ID 3500) (referencing United States v. Nasr, No. 7:18-cr-7-KKC-EBA (E.D. Ky. 2018)). In that case, Noel claims that the government never made Nasr's pricing an issue at trial, despite his prices being “as high or higher” than Noel's. (Id. at Page ID 3500-01).
The United States argues that the evidence used at trial to demonstrate the prices Noel was charging came from his own business records, and that Noel admitted as such during his testimony. (R. 231 at Page ID 3585-86). Thus, the United States argues that Noel could not show that the outcome of his case would have been different if Attorney Cagle had explored the pricing of similar drugs at other pharmacies, and therefore he did not receive ineffective assistance of counsel. (Id. at Page ID 3586).
Here, it could be argued that Noel has provided “sufficiently precise information as to the nature and probable effect that would have been obtained had counsel undertaken the desired investigation.” Crawford, 2008 WL 2948055, at *5. Noel provides an affidavit and report from Chris Killmeier, R. Ph., a licensed pharmacist of 32 years, that reviews the prescriptions used as evidence in Noel's case and provides cost comparisons with five other pharmacies, including the use of discount cards. (R. 219 at Page ID 3524-28). The report raises some questions, however. No dates are provided for when Killmeier conducted his analysis, and it is not clear where the numbers were pulled from or from what specific pharmacies.Further, while it is clear that Killmeier has experience in the pharmaceutical industry, his resume does not include a list of cases in which he has provided expert testimony or other consulting services for criminal cases such as this. (Id. at Page ID 3524-35). His report was not subject to Daubert challenges, crossexamination, or subject to rebuttal by competing expert testimony.
Notably, in his report, Killmeier says “I shopped two independent pharmacies, (Audubon Pharmacy and Kentuckiana Pharmacy), and three chain pharmacies, (CVS, Kroger, and Walgreens).” (R. 219 at Page ID 3526). However, the Court can find no online record of Kentuckiana Pharmacy, and the report does not include an address of which CVS, Kroger, or Walgreens that Killmeier investigated. As Killmeier notes, “[p]harmacy pricing varies drastically from pharmacy to pharmacy, location to location, and even between pharmacies within the same chain of drug stores.” (Id. at Page ID 3528). Thus, not including the location of the pharmacies he investigated raises questions as to the evidentiary value of his report.
Most importantly, however, though Noel has provided this report demonstrating his prices may have been lower than other pharmacies generally at an unspecified time, he has not demonstrated how his counsel introducing this information at trial would have changed the result. Even if Attorney Cagle had introduced a qualified expert report detailing the costs of drugs at other pharmacies, Noel has not shown the “probable effect” this evidence would have had on his trial. As the United States notes, the disproportionate cost of Noel's drugs were referenced multiple times at trial by numerous witnesses, including Noel himself. (R. 231 at Page ID 3585-86) (citing transcript of testimony from TFO Dalrymple (R. 149 at Page ID 1516-23, 25-32, 35, 37, 49, 4148, 50, 89); Darryl Williams (R. 150 at Page ID 1617, 1621); Lora Kicklighter (R. 150 at Page ID 1657, 72-74); Michael Robinette (R. 150 at Page ID 1681); Bryan Harlow (R. 150 at Page ID 1693); Brandon Goins (R. 150 at Page ID 1727, 40); Lori Moles (R. 150 at Page ID 1761-62, 73); Lucas Hobson (R. 150 at Page ID 1806); David Lucas (R. 151 at Page ID 1857-59, 62, 81, 91); Kyle Sizemore (R. 151 at Page ID 1910-11, 26-27, 32, 34-26); Jackson Noel (R. 152 at Page ID 2029-30, 37, 46-49, 52, 65-66); Christine Tucker (R. 152 at Page ID 2098-99); and Diana Eads (R. 152 at Page ID 2115-17, 19)). In fact, Noel explained why he was charging the higher prices during his testimony:
Q. Tell the jury why you charged cash and why you charged what you did.
A. Okay. Before I opened Buffalo Drug, I had dealt with pain pills down in Boone County for Rite Aid. Every pharmacy you go to, it's the fastest move down there. It's just one script after another. Taken a couple of stands down there. Refused prescriptions and nothing worked. All they would do is go across the street and transfer their whole profiles out. You get tired of dealing with that every day. And I didn't want to deal with it anymore. So I decided that I was going to make my price what it was, and that was just going to be it. I did that to decrease the amount of people I was going to be
dealing with. And honestly, I felt like -- I think it did, it put less pills on the street, not more. And then after I opened, there was some other factors and I actually raised my prices higher, and that's because of the allocation that I was faced with. You could only get so many of them. And so I raised it due to that. And there was another time that I had to raise the prices because my wholesaler doubled the price between December and January.
(R. 152 at Page ID 2029-30).
Due to the overwhelming amount of testimony and evidence from Noel and his business records on the issue, even if Attorney Cagle had performed deficiently by failing to investigate his competitors' drug pricing, Noel cannot show that this prejudiced him. Further, the drug pricing was not the only incriminating evidence of the drug trafficking operation. As the Government noted multiple times during their case, the costs were one of “several red flags” indicating a conspiracy. (R. 153 at Page ID 2175) (“The sixth red flag, charging an excessive amount for prescriptions . . .”). The Government referenced up to nine “red flags” as evidence Noel was engaging in a criminal conspiracy during their closing argument. (Id. at Page ID 2180). Even if Attorney Cagle had presented evidence of other pharmacies' drug pricing, it would not have had an impact on the remaining eight “red flags” that investigators challenged, and therefore Attorney Cagle's alleged failure to investigate the drug pricing does not meet the Strickland test for ineffective assistance of counsel.
3. Ground 3 - Failure to Call Expert Defense Witness
In Noel's third ground, he argues that counsel was ineffective because he failed to call his retained expert, Steven DeAtley, Ph.D. (“Dr. DeAtley”) and left the Government's witness testimony “entirely unrefuted.” (R. 219 at Page ID 3501). Noel claims that Dr. DeAtley was told by Attorney Cagle while he was waiting outside the Courthouse in his vehicle that he would not be called because “the Government did not prove their case.” (Id.). Noel states that Dr. DeAtley was meant to testify on the relevant standard of care for pharmacists and what red flags were relevant for prescribing opioids specifically, as well as the corresponding responsibility. (Id.). Essentially, Noel argues Dr. DeAtley should have been called to refute TFO Dalrymple's testimony, and Attorney Cagle was ineffective for choosing not to have the expert testify. (Id.).
Noel does not include a signed affidavit from Dr. DeAtley discussing these events. Instead, counsel states that this information was represented to him by Dr. DeAtley. (R. 219 at Page ID 3501).
In its Response, the United States first argues that counsel's trial strategy is not a basis for vacating a conviction unless the decision is “so ill-chosen that it permeates the entire trial with obvious unfairness.” (R. 231 at Page ID 3586) (quoting Hughes v. United States, 258 F.3d 453, 457 (6th Cir. 2001)). Next, the United States submits that Dr. DeAtley was retained as a rebuttal witness, hired only for the purpose of countering the United States' expert, and when the United States did not call that expert witness, there was nothing to rebut. (R. 231 at Page ID 3586).
In his Reply, Noel notes that at no point was Dr. DeAtley designated solely as a rebuttal expert. The record does not reflect such a specific designation for Dr. DeAtley. (R. 235 at Page ID 3606-07). Noel references his Rule 16(b)(1)(C) disclosure of Dr. DeAtley, wherein the defense disclosed a summary of testimony to the United States that Dr. DeAtley was going to be offered “as an expert in pharmacy and pharmacology.” (R. 79). Additionally, Noel points to trial proceedings, wherein the Court questioned Attorney Cagle about Dr. DeAtley's availability on the fourth day of trial. (R. 152 at Page ID 2125). Due to Dr. DeAtley's medical issues, he was not available on day four of the trial and it was agreed that he would testify at the start of the next day. (Id.). However, at the beginning of the next day, Attorney Cagle decided not to call him to the stand. (Id.). The record does not reflect why Attorney Cagle decided not to call him, but one explanation could be that during the overnight recess defense counsel was still deciding whether to have Dr. DeAtley testify at all, given the United States had chosen not to call its expert witness but also weighing that TFO Dalrymple had been permitted to testify about diverted pharmaceutical investigations generally. Although Noel now asserts that Dr. DeAtley should have been used to counter that testimony by TFO Dalrymple, determining not to call Dr. DeAtley to testify was a strategic decision made in the course of trial.
Under the Strickland standards for ineffective assistance of counsel, it is presumed that an attorney's decision not to call a particular witness was based upon a sound trial strategy, absent evidence in the record to the contrary. Hutchison v. Bell, 303 F.3d 720, 749 (6th Cir. 2002). As stated by the Sixth Circuit, counsel's performance is given “great deference” and a “presumption of reasonableness,” such that when choosing to call a witness, “[f]or counsel's [decision] to rise to the level of constitutional ineffectiveness, the decision . . . must have been completely unreasonable, not merely wrong, so that it bears no relationship to a possible defense strategy.” Moore v. Mitchell, 708 F.3d 760, 767 (6th Cir. 2013) (citing Strickland, 446 U.S. at 689; Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir. 1997)). Additionally, “[w]hen a defendant claims that his attorney failed to call a witness at trial, he must ‘[a]t the very least . . . submit sworn affidavits from each of the individuals he has identified as uncalled witnesses stating whether they were in fact available to appear at trial and able to give testimony favorable to [the] defense.'” United States v. Tilghman, No. 07-cr-138-KSF, 2013 WL 4735578, at *10 (E.D. Ky. Sept. 3, 2013) (quoting Talley v. United States, No. 1:00-cv-74, 2006 WL 3422997, at *10 (E.D. Tenn. Nov. 27, 2006); citing United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (“Under whatever framework, however, evidence about the testimony of a putative witness must generally be presented in the form of actual testimony by the witness or on affidavit.”)). Further, “[a] defendant cannot simply state that the testimony would have been favorable; self-serving speculation will not sustain an ineffective assistance claim.” United States v. Guzman, No. 5:16-cr-41-JMH-EBA-1, 2019 WL 4120811, at *4 (E.D. Ky. Aug. 29, 2019) (quoting United States v. Slater, No. 5:05-CR-38-JBC, 2011 WL 7168921, at *4 (E.D. Ky. Dec. 5, 2011)).
Noel alleges Attorney Cagle did not call Dr. DeAtley to the stand because he did not believe the Government had proved its case.(R. 219 at Page ID 3501). And in portions of this section of his argument, Noel appears to agree with Attorney Cagle. He notes that the Government “clearly failed to meet its legal burden to show that Mr. Noel committed an illegal act, yet counsel failed to notice this at any point in the trial.” (Id. at 3506). If the United States “clearly failed to meet its burden” during its case-in-chief, then it would not be unreasonable for counsel to forego calling an expert witness. Further, though the Court has the transcript indicating that Dr. DeAtley was not called as well as the notice of what was given to the United States, Noel submits no affidavit from Dr. DeAtley of why he was not called or what testimony he planned to give. See Tilghman, 2013 WL 4735578, at *10. Thus, Noel has not shown that his counsel's decision constituted deficient performance.
There is no affidavit from Attorney Cagle confirming that is why he did not proceed with Dr. DeAtley's testimony. (See R. 219 at 3501); supra n.4.
Even assuming Attorney Cagle's performance on this point was deficient, Noel has not shown that this decision prejudiced him. Noel argues that Attorney Cagle's failure to call the expert witness allowed the United States to have the “last word” regarding definitions of pill mills, red flags, and the relevant provisions of the C.F.R. (R. 235 at Page ID 3609). However, as noted above with respect to Noel's first two grounds, numerous witnesses besides TFO Dalrymple testified on these topics, and there was a sufficient limiting instruction for the jury. Thus, Noel has not demonstrated that Attorney Cagle's decision was “so ill-chosen that it permeates the entire trial with obvious unfairness.” Hughes, 258 F.3d at 457.
4. Ground 4 - Failure to Adequately Prepare Defendant for Testimony
A criminal defendant has a constitutional right to testify in his own defense. Rock v. Arkansas, 483 U.S. 44, 49 (1987). While defense counsel should advise defendant of this right, the ultimate decision regarding whether to take the stand rests with the defendant himself. United States v. Webber, 208 F.3d 545, 551 (6th Cir. 2000). In Noel's fourth ground for relief, he argues that Attorney Cagle was ineffective for failing to adequately prepare Noel for testimony at trial. (R. 219 at Page ID 3507). Noel argues that competent counsel would have conducted a “mock cross-examination” of the client, “ideally by someone other than counsel himself, in as realistic and as close to the style of the prosecutor as possible.” (Id. at Page ID 3507). Noel cites Rayborn v. United States in support of the proposition that a court can find ineffective assistance of counsel if counsel fails to discuss the strategic implications of testifying at trial. (Id. at 3508) (citing 489 Fed.Appx. 871, 880 (6th Cir. 2012)). Noel argues that counsel did not prepare him to testify and thus, Noel made admissions on the stand that were harmful to his case. (Id. at Page ID 3507-08) In support of his assertions, he includes an affidavit that is dated February 15, 2020, just before his sentencing. (Id. at Page ID 3531). Therein, Noel states that his testimony preparation with Attorney Cagle consisted of “5-10 minutes here and there for a total of no more than an hour.” (Id.). He stated that Attorney Cagle would ask him open-ended questions and express dissatisfaction with his answers, told him that he talked too long, and “never warned [him] about the emotions, confusion, and memory lapse [he] experienced during his actual testimony.” (Id.). He also claims that the plan was for him to be called as the last defense witness to give him an extra night to prepare for his testimony, but when the United States rested “early” Attorney Cagle put him on the stand because no other witnesses were ready, and Attorney Cagle had a “gut feeling” that Noel should testify. (Id. at Page ID 3530-31).
The United States notes that that the presiding District Judge confirmed with Noel on the record that he had the right to remain silent, the right against self-incrimination, and the need to carefully consider whether he wanted to testify. (R. 231 at Page ID 3577) (citing R. 151 at Page ID 1946-47). The United States argues that the presiding District Judge's inquiry cures any claims by Noel that his testimony was unknowing or improperly made, and Noel fails to clarify how additional trial testimony preparation would have prevented his conviction.
The record adds context to Noel's assertion that he was called “early.” (Id.). The Court conducted a colloquy of Noel on the third day of trial, a Friday, informing him that he would waive his Fifth Amendment rights by testifying and that it was his absolute right not to testify. (R. 151 at Page ID 1946). Court then stood in recess from Friday afternoon until Monday morning. (Id. at 1947). When the Court returned Monday morning, the Government called one more witness before closing their case-in-chief. (R. 152 at Page ID 1977). After entertaining motions, the Court took a break. (Id. at Page ID 1981). The record does indicate that Attorney Cagle intended to call another witness that was not present (id.) (“I told him to be here at 10:30 . . . He's not here.”), but Attorney Cagle ultimately called Noel to the stand instead. (Id. at Page 1982). While it is possible that Noel was supposed to receive an additional day to prepare for his testimony, his Motion does not address the notice he received on the Friday of trial that the United States would be wrapping up their case on the following Monday, or explain what he and counsel did to prepare over the weekend.
Turning to the merits of this ground, the Sixth Circuit did find ineffective assistance where counsel failed to prepare a defendant to testify in Rayborn v. United States, but the case differs from Noel's case in a few key ways. 489 Fed.Appx. at 871. Therein, the defendant first received a mistrial, and the court found his counsel did not properly prepare him to testify at the second trial. Id. at 874-75. The court stated that counsel was obligated to explain to the defendant how this testimony would differ from the first trial, rather than rely on the conversation they had with the defendant “over a year earlier and at a significantly different stage of the case.” Id. at 880-81. Further, the court used the outcome of the first trial to demonstrate the prejudice that the defendant suffered from counsel's deficient performance, and noted that the evidence against the defendant was “entirely circumstantial and lacked any direct or physical evidence linking” the defendant to the crime, meaning that the defendant's testimony had a greater impact on the jury's verdict. Id. at 881-83.
Here, it is possible that Attorney Cagle's performance was deficient. As Noel notes, if Attorney Cagle decided not to call Dr. DeAtley because “the Government had not proven their case” (R. 219 at Page ID 3501, 3509), it makes little sense why he would proceed with Noel's testimony is debatable. As the Sixth Circuit has noted, “it is often the defendant, above all others, who is the most influential witness to the jury.” Rayborn, 489 Fed.Appx. at 882 (citing Ferguson v. Georgia, 365 U.S. 570, 582 (1961)). But Noel does not argue that Attorney Cagle did not prepare him for testimony at all - instead, Noel argues that counsel should have conducted a mock cross-examination of Noel to avoid performing deficiently. (R. 219 at Page ID 3507). Notably, Noel does not provide case law that mandates the use of this kind of technique to avoid a claim for ineffective assistance of counsel. While Noel may have benefitted from more preparation before he testified, he does not provide the Court with enough information to overcome the “highly deferential” and “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” See Strickland, 466 U.S. at 689.
Regardless, the Court does not need to determine whether Attorney Cagle's performance was deficient, because Noel cannot show that the lack of preparation prejudiced him. See United States v. DeGrave, No. 6:17-cr-39-GFVT-CJS, 2020 WL 2739877 *2 (E.D. Ky. Apr. 30, 2020) (“Courts may approach the Strickland analysis in any order, and an insufficient showing on either prong ends the inquiry.”). Noel argues that he made admissions during cross-examination that he would not have made with adequate preparation; namely, that his pharmacy exhibited all of the characteristics, or “red flags” of a pill mill. (R. 219 at Page ID 3508). However, this conclusion is speculative and as noted previously, multiple witnesses discussed red flags in the context of diverted pharmaceuticals besides Noel. (See R. 150 at Page ID 1759, 70-71 (Lori Moles); R. 151 at Page ID 1860-61, 80-81, 91-92 (David Lucas); R. 151 at Page ID 1896-98, 1900 (Jason Neal); R. 151 at Page ID 1902 (Jack Luikhart); R. 151 at Page ID 1910, 14, 30-32 (Kyle Sizemore); and R. 152 at Page ID 2017, 28, 37, 50-53, 60, 66-67, 75-77, 80 (Jackson Noel)).
Unlike Rayborn, where the evidence against the defendant was “entirely circumstantial and lacked any direct or physical evidence linking” the defendant to the crime, 489 Fed.Appx. 881-83, the United States in Noel's case presented direct evidence, testimony of additional witnesses, and business records in support of the charge. Thus, Noel has not made a sufficient showing of what specific further preparation was required and would have resulted in a different outcome. Further, as the United States notes, the Court conducted a colloquy with Noel to make sure that he was fully informed of his rights before testifying. (R. 151 at Page ID 1946-47). If Noel did not feel adequately prepared to give testimony in this case, he was aware that it was his absolute right to decide whether to testify and he did not have to proceed. Thus, Noel did not receive ineffective assistance of counsel and Noel is not entitled to relief on this ground.
5. Ground 5 - Failure to Request or Review Discovery
In his fifth ground for relief, Noel argues that his counsel was ineffective for failing to review discovery as it related to the testimony of Jason Neal. (R. 219 at Page ID 3509). Neal was a Walmart pharmacist the United States called as a witness to testify about refusing to process prescriptions from the doctor involved in the conspiracy. (Id.). Specifically, Noel argues that Neal's statements were “hearsay evidence which was not made available to (or requested by) defense counsel for cross examination” and because Attorney Cagle failed to request or review discovery, he did not object to the introduction of Neal's hearsay testimony. (Id. at 3509-10). Noel cites a quote from Attorney Cagle at trial, where he states to the presiding District Judge, “I'm going to have a leap of faith that somewhere I've been provided the documents, you know. But I don't know, particularly with reference to this, what documents you allowed.” (Id.) (quoting R. 151 at Page ID 1915). The United States argues that even if the Court finds it was deficient performance for counsel not to lodge a hearsay objection against Neal's testimony, his performance could not be prejudicial to Noel, due to the limited nature of Neal's testimony and the overwhelming weight of the evidence against Noel. (Id. at Page ID 3588).
A review of the record indicates that Attorney Cagle made two discovery requests: one for documents related to the search and seizure at Buffalo Drugs (R. 23); and another for statements from Noel within the possession of the United States and its agents, results of examinations, tests, and experiments, and documents, witness reports, and summaries of expert witness testimony (R. 24). Further, Neal's testimony was incredibly brief, testifying that he had declined to fill some of Dr. Smithers's prescriptions and explaining the “red flags” he saw in some of the prescriptions. (R. 151 Page ID 1894-1901). On cross, Attorney Cagle elicited responses from Neal that affirmed that each pharmacist must make the determination of whether to fill a prescription independently, and how Neal would not be able to see in his system if patients were getting their prescriptions filled at other Wal-Marts. (Id. at 1899-1900). With respect to Attorney Cagle's comment about his “leap of faith” that he had been provided the documents, that was in reference to a different witness where Attorney Cagle had approached the bench to raise an issue with an exhibit provided to him by the United States. (Id. at 1916-17). Because of the specific objection that Attorney Cagle raised here, the Court limited the testimony the Government could present related to records from prescribing doctors. (Id.).
While Noel has come up with questions post-trial that might have been better to ask Mr. Neal, the Court must make “every effort . . . to eliminate the distorting effects of hindsight . . . and to evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 689. Due to the brief testimony of Jason Neal, it could be considered sound trial strategy that Attorney Cagle was attempting to avoid over-emphasizing his testimony by not objecting. See Cobbs, 233 Fed.Appx. at 541. With respect to a failure to request or review discovery, Noel provides no evidence, other than the statement that Attorney Cagle was taking a “leap of faith” that he had been provided a document, that Attorney Cagle failed to review discovery in the case. (R. 151 at Page ID 1915). And this statement in context shows that Attorney Cagle made a proper and successful objection to the testimony that was elicited.
As noted above, the tactical decisions of a defendant's trial counsel are presumed to be part of sound trial strategy and therefore will not be subject to successful attack absent a defendant overcoming such presumption. See Darden, 477 U.S. at 185-87. Noel has not overcome this presumption and has not shown that Attorney Cagle's performance was deficient or prejudicial. Thus, he is not entitled to relief on this ground.
6. Ground 6 - Improper and Prejudicial Opening Statement
In his sixth ground for relief, Noel argues that counsel was ineffective for making “prejudicial” statements about Noel in his opening statement and included information that was “irrelevant” that counsel “never attempted to prove at trial.” (R. 219 at Page ID 3510-11). He first argues that Attorney Cagle's comments about the opioid epidemic were “inflammatory statements” that would have been subject to objection if the prosecution had made them, and thus had no place in the defense opening. (Id. at Page ID 3511). During his opening statement, Attorney Cagle stated:
We all understand, because we see it and we read about it in the papers every day, that there has been an epidemic of drug use in West Virginia, in Kentucky and all of America. That's a given. None of us likes it. It's a shame, it's killing children. But what this case is about is not just that, but it's about changing the relationship between a doctor and the pharmacist and changing the relationship between the pharmacist and the customer.
(R. 149 at Page ID 1462). Noel argues, without citation to case law, that referencing the opioid epidemic in this manner was improper, and if a prosecutor had made these statements, an objection “would have no doubt been sustained.” (R. 219 at Page ID 3511).
Noel argues that the next portion of the opening statement is “consistent with the overall theme of his statement, which was that the defense was not going to challenge any of the evidence presented by the prosecution.” (R. 219 at Page ID 3511). At trial, Attorney Cagle stated,
And you will see that the defense relies upon the same set of facts as does the United States. The witnesses will come from several sources. There will be customers/patients, which [the prosecutor] has described as some being addicts, others being people that engage illegally in the transmission of drugs to others. It will come from investigators. Investigators that do their best, that are honorable people. We don't dispute that. But this case is about a perspective. It's about criminal intent or the lack thereof. And you will hear from others, not just customers/patients or dealers. You will hear from people who work in the business. And I submit to you that the evidence that you will hear will be that there are differences in opinions about how to address a customer who shows up to your pharmacy with a prescription written by a licensed physician for a substance that has a medical purpose, but as we know now, after the fact, has been abused. All of
those will be facts presented by the government and not disagreed with by the defense.(Id. at Page ID 1463).
Lastly, Noel challenges that counsel emphasized an “irrelevant, never developed issue: the time period of the indictment and when the drug transactions occurred.” (R. 219 at Page ID 3512). Attorney Cagle stated,
The period involved is extremely important, and that's why we're showing that to you now. That is what is charged. Those are the charged coconspirators. At the close of the evidence of this case, you will see that the government not only has relied upon evidence that does not involve that period of time, in fact, almost entirely the government's evidence is not that which involves the alleged coconspirators and that finite, defined in the indictment is the applicable period of time. I will repeat that. The government's evidence will be almost entirely not that period of time in the indictment and not the alleged coconspirators. And you can hold me to that because I will be talking about that at the close of the evidence in this case.(Id. at Page ID 1465). Noel argues that Attorney Cagle “presented this information as the primary defense in the case” and that it was irrelevant to the charges that Noel was involved in an ongoing conspiracy. (R. 219 at Page ID 3512). Noel concludes that this is “obviously” ineffective representation, but provides no citation to case law in support of his assertions.
The United States argues that, again, counsel's trial strategy is not a valid basis for vacating a conviction, citing to England v. United States in support of the proposition that the content of an attorney's opening statement is a matter of trial tactics and generally not a basis for ineffective assistance of counsel. (R. 231 at Page ID 3589) (citing No. 2:19-CV-151-JRG-CRW, 2022 WL 4785411 at *3 (E.D. Tenn. Sept. 30, 2022) (“the Court must presume that [defendant's] attorney had a strategic, legally sound reason, or reasons, for crafting and presenting his opening statement in the way that he did, even if [defendant], after the fact, now disagrees with it.”) (collecting cases)).
“When an attorney ‘act[s] as an advocate for [a] defendant' during an opening statement, by ‘emphasi[zing] the burden of proof” or ‘press[ing] [the] defendant's case,' his opening statement, even if it is ‘not as eloquent as it could have been,' is not constitutionally ineffective.” Id. at *4 (quoting Campbell v. United States, 364 F.3d 727, 733 (6th Cir. 2004)). Though he mentions that it would be “reversible error” if used by the prosecution (R. 219 at Page ID 3510), Noel does not provide authority stating that it is ineffective assistance of counsel when a defense attorney commits an error that would be objectionable if the attorney were a prosecutor. Noel provides no case law or authority that supports his assertion that Attorney Cagle was deficient for making these statements in his opening. And even if Noel had detailed how Attorney Cagle's opening statement constituted deficient performance, Noel does not address the prejudicial effect these portions of the opening statement had on his case, or how “the result of the proceeding would have been different” had Attorney Cagle omitted these remarks from his opening statement. See Strickland, 466 U.S. at 694. For these reasons, Noel has not demonstrated that he received ineffective assistance of counsel on this ground.
C. New Claim under Ruan v. United States, 142 S.Ct. 2370 (2022)
On February 16, 2023, Noel filed a Motion to Amend his § 2255 to add an additional claim for relief based on the Supreme Court's decision in Ruan v. United States. (R. 232 at Page ID 3592) (citing 142 S.Ct. 2370 (2022)). Noel asserts that because Ruan was decided on June 27, 2022, he had until June 27, 2023 to assert and preserve a claim under AEDPA. (Id.); see 28 U.S.C. § 2255(f)(3). The United States challenges that (1) this claim is procedurally defaulted because Noel did not raise the issue of mens rea at trial or on direct appeal; (2) this claim is not based on a “recent” change in law because Ruan was decided on June 27, 2022, one month before Noel filed his § 2255 Motion; and (3) Ruan is inapplicable to the case at hand because Noel was not convicted under the same statute as the defendants in Ruan. (R. 234 at Page ID 3598-99).
1. Amended Petition and Relation Back
The Federal Rules of Civil Procedure apply to § 2255 motions “to the extent that they are not inconsistent with any statutory provisions or [the Federal Rules Governing § 2255 proceedings].” Rule 12 of the Rules Governing Section 2255 Proceedings for the United States District Courts. “A motion to amend a § 2255 motion is governed by Federal Rule of Civil Procedure 15(a).” United States v. Clark, 637 Fed.Appx. 206, 209 (6th Cir. 2016). And a “Rule 15(a) motion for leave to amend the complaint . . . is the appropriate mechanism through which a party may assert additional claims for relief.” Michael v. Ghee, 498 F.3d 372, 386 (6th Cir. 2007); see Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008) (noting that an attempt to raise new claims is subject to § 2255(f)'s statute of limitations period). However, “a Rule 15 motion will be denied where it is filed after [the statute of limitations] period expires unless the proposed amendment relates back to the date of the original pleading.” Howard, 533 F.3d at 475. Accordingly, the question to be considered is whether Noel's Motion to Amend is timely.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) subjects § 2255 motions to a one-year limitation period. 28 U.S.C. § 2255(f). The statute provides:
The [one-year] limitation period shall run from the latest of
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme
Court and made retroactively applicable to the cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.Id. Subsection (f)(1) is the most commonly applicable provision, requiring a federal criminal defendant to file his § 2255 motion within one year of the conviction becoming final. Id.
Noel's original § 2255 Motion was filed pursuant to § 2255(f)(1), when he filed his Motion within one year of the date on which his Judgment became final. The Sixth Circuit affirmed Noel's sentence on November 30, 2021. (R. 218). Noel then had 90 days to file a petition for writ of certiorari with the Supreme Court. See Supreme Court Rule 13(1). Because Noel did not file such a petition, his conviction became “final” for AEDPA purposes on February 28, 2022. Thus, Noel had until February 28, 2023 to file his § 2255 Motion. Noel filed his original § 2255 Motion on July 30, 2022, well in advance of the one-year deadline. (R. 219). Further, Noel's Motion to Amend was filed on February 16, 2023, 12 days before the February 28, 2023 deadline. (R. 232). Thus, the Motion to Amend is timely under the one-year period set forth in § 2255(f)(1), and Noel's Motion to Amend therefore will be granted.
Because Noel's Motion to Amend is timely under § 2255(f)(1), the Court need not consider his argument that his Motion to Amend is timely under § 2255(f)(3). Additionally, the Sixth Circuit has not squarely addressed whether Ruan applies retroactively on collateral review, so it is possible that § 2255(f)(3) would not start a new limitations period for Noel to bring this claim anyway.
2. The Applicability of Ruan
Though Noel's Motion to Amend his § 2255 Motion may be timely, he faces additional hurdles on the merits. As the United States notes, even if the Sixth Circuit had clearly indicated Ruan applied retroactively on collateral review, Ruan would not apply to Noel because he was convicted under a different statute. (R. 234 at Page ID 3599).
In Ruan v. United States, the Supreme Court held that 21 U.S.C. § 841(a)'s “knowingly or intentionally mens rea” applies to the entirety of the statute, including the “except as authorized” clause. 142 S.Ct. 2370, 2375 (2022). In practice, the Court's interpretation means that “[a]fter a defendant produces evidence that he or she was authorized to dispense controlled substances, the Government must prove beyond a reasonable doubt that the defendant knew that he or she was acting in an unauthorized manner, or intended to do so.” Id. at 2375. The Supreme Court recognized that requiring the Government to prove a defendant's lack of authorization is “sufficiently like an element . . . to warrant similar legal treatment.” Id. at 2380. In other words, Ruan can arguably be read as adding a new element to 21 U.S.C. § 841(a).
However, Noel was convicted under 21 U.S.C. § 846, for conspiracy to dispense and distribute oxycodone. (R. 190). And a charge under § 846 is substantively different than a charge under § 841. See United States v. Wheat, 988 F.3d 299, 306 (6th Cir. 2021) (“[A] drug conspiracy requires the government show that two or more individuals have agreed to violate a drug law (such as § 841(a)(1)'s ban on distributing drugs) and that the defendant knowingly and voluntarily entered into this agreement....The agreement thus separates the crime of conspiring to distribute drugs (in violation of § 846) from the crime of distributing drugs (in violation of § 841(a)).”). Indeed, “[n]ot only is it unnecessary for each member of a conspiracy to agree to commit each element of the substantive offense, but also a conspirator may be convicted ‘even though he was incapable of committing the substantive offense' himself.” Ocasio v. United States, 578 U.S. 282, 289 (2016) (emphasis added) (citation omitted); see United States v. Christian, 786 F.2d 203, 211 (6th Cir. 1986) (“Proof of knowledge is satisfied by proof that the defendant knew the essential object of the conspiracy. . . . Every member of a conspiracy need not be an active participant in every phase of the conspiracy, so long as he is a party to the general conspiratorial agreement.”) (citations omitted). The Sixth Circuit has not addressed whether the Ruan standard would apply to prosecutions for conspiracy.
How the Eleventh Circuit handled Ruan on remand from the Supreme Court is insightful. See United States v. Ruan, 56 F.4th 1291, 1299 (11th Cir. 2023) (“Ruan II”). Therein, the Eleventh Circuit held that the jury was not adequately instructed with respect to the defendants' charges under 21 U.S.C. § 841. Id. at 1297-98. However, with respect to the conspiracy charges under 21 U.S.C. § 846, the court held that revised jury instructions would have “no effect” on the jury's analysis, because the jury instructions for conspiracy “already required them to find that the defendant acted with subjective knowledge.” Id. at 1299. The Eleventh Circuit reasoned,
The jurors in this case were instructed to convict only if they found ‘two or more people in some way agreed to try and accomplish a shared unlawful plan to distribute or dispense . . . the alleged controlled substance or substances.' Further, they were instructed to convict only if they found that the defendants ‘knew the unlawful purpose of the plan and willfully joined it.' The instructions told the jury that a person acts with willfulness only when they act ‘voluntarily and purposefully . . . to do something the law forbids.' Had the jury in this case concluded that Dr. Ruan or Dr. Couch believed their actions to be for a legitimate medical purpose they could not have found the defendants made an ‘unlawful plan' and ‘knew' its ‘unlawful purpose,' nor could they have concluded they ‘willfully' joined that plan.Id.
Noel's jury instructions contained the same language that the Eleventh Circuit found persuasive in upholding the defendants' convictions under 21 U.S.C. § 846 on remand. (R. 112). Jury Instruction No. 12 reads, “With regard to the criminal agreement, you must find that two or more members of the conspiracy conspired or agreed, to knowingly and intentionally distribute or dispense oxycodone or oxymorphone[.]” (Id. at Page ID 788). Instruction No. 14 reads, “With regard to the second element - the defendant's connection to the conspiracy - the government must prove that the defendant knowingly and voluntarily joined that agreement. The government must prove that the defendant knew the conspiracy's main purpose and voluntarily joined the conspiracy intending to help advance or achieve its goals.” (Id. at Page ID 790). Thus, using the Eleventh Circuit's analysis, Noel's jury instructions correctly instructed the jurors to evaluate Noel's subjective knowledge of the illegal object of the conspiracy, and therefore did not run afoul of Ruan. See Ruan II, 56 F.4th at 1299; see also Korcz v. United States, No. 2:23-cv-8002-RDP, 2023 WL 2998483, at *7 (N.D. Ala. Apr. 18, 2023).
Even if the Eleventh Circuit's consideration in Ruan II were not persuasive and this Court were instead required to address Noel's conviction based on the underlying intent of 21 U.S.C. § 841, his new claim is still unsuccessful. Jury Instruction No. 15 reads,
No one can avoid responsibility for a crime by deliberately ignoring the obvious. If you are convinced that the defendant deliberately ignored a high probability that the controlled substances alleged in the indictment were distributed or dispensed without a legitimate medical purpose and outside the usual course of professional practice, then you may find that he knew this was the case.
But to find this, you must be convinced beyond a reasonable doubt that the defendant was aware of a high probability that the controlled substances alleged in the indictment were distributed or dispensed without a legitimate medical purpose and outside the usual course of professional practice, and that the defendant deliberately closed his eyes to what was obvious. Carelessness, or negligence, or foolishness on his part is not the same as knowledge, and it is not enough to convict.
(R. 112 at Page ID 791) (emphasis added). The Sixth Circuit held in United States v. Anderson that this exact instruction for a defendant facing a charge under 21 U.S.C. § 841 “substantially cover[ed] the concept of knowledge through the description of deliberate ignorance and the juxtaposition of ‘knowledge' with ‘[c]arelessness, negligence, or foolishness.'” 67 F.4th 755, 766 (6th Cir. 2023). Thus, even if the court were required to evaluate Noel's jury instructions based on Ruan's holding as to the mens rea for the “except as authorized” clause of 21 U.S.C. § 841(a), the Sixth Circuit in Anderson found the same instruction Noel received sufficiently covered the knowledge requirement and there was no error. Id.
Noel references cases in this Circuit and in others where the Government has either dropped similar charges against pharmacists, or jury instructions were modified in light of Ruan and led to acquittal of all charges. (Id. at Page ID 3594) (referencing Order Granting Motion to Dismiss, United States v. Rattini, et al., No. 19-CR-81 (S.D. Ohio Aug. 11, 2022), ECF No. 149; Judgment of Acquittal, United States v. Bothra, et al., No. 2:18-CR-20800 (E.D. Mich. July 20, 2022) ECF No. 456; Judgment of Acquittal, United States v. Given, No. 3:21-CR-63 (N.D. Fla. July 25, 2022), ECF No. 72; Order Granting Motion to Dismiss, United States v. Kim, CR-20-163 (W.D. Okla. Aug. 1, 2022), ECF No. 54; Order Dismissing Indictment, United States v. Brian August, No. 3:21-cr-912-FM-1 (W.D. Tex. Sept. 29, 2022), ECF No. 70). It is possible the United States has changed its prosecution strategy in light of Ruan, but these cases have no bearing on Noel's case because each has its own context and procedural posture and a review of their dockets does not indicate any formal opinion that this Court can cite and rely upon. While the Court certainly notes that these actions were dismissed (with the exception of the acquittal in Given and Bothra), the courts simply granted the motions of the United States without an in-depth analysis of how Ruan would or would not permit the prosecution to proceed. Thus, the Court cannot use these cases as precedent to apply to Noel's case; the published cases noted above control this Court's consideration. Based on the Eleventh Circuit's decision in Ruan II and the Sixth Circuit's decision in Anderson, the jury instructions used in Noel's case sufficiently addressed the subjective knowledge requirement resulting from Ruan. See Ruan II, 56 F.4th at 1299; Anderson, 67 F.4th at 566. Thus, though his Motion to Amend (R. 232) is timely, Noel is not entitled to relief on this additional ground.
III. CERTIFICATE OF APPEALABILITY
Under Rule 11 of the Federal Rules Governing Section 2255 Proceedings, “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” A certificate may issue only if a defendant “has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court explained this requirement in Slack v. McDaniel, 529 U.S. 473 (2000) (addressing issuance of a certificate of appealability in the context of a habeas petition filed under 28 U.S.C. § 2254, which legal reasoning applies with equal force to motions to vacate brought under 28 U.S.C. § 2255). Where a district court rejects a petitioner's constitutional claims on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Id. at 484. When a district court denies a habeas petition on procedural grounds without reaching the petitioner's underlying constitutional claim, a certificate of appealability should issue when the petitioner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Id.
In this case, reasonable jurists would not debate the denial of Noel's § 2255 Motion or conclude that “the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Accordingly, it also will be recommended that a certificate of appealability be denied upon the entry of a final order in this matter.
IV. CONCLUSION
For the reasons stated above, IT IS ORDERED that:
1) Noel's Motion to Amend (R. 232) is hereby granted; and
2) Noel's Addendum Amending § 2255 Motion (R. 232-1) shall be filed of record.
Further, IT IS RECOMMENDED that:
1) Noel's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (R. 219) as amended by his Addendum Amending § 2255 Motion (R. 240) be denied;
2) a Certificate of Appealability be denied in conjunction with the entry of a final order denying Noel's § 2255 Motion; and
3) a Judgment in favor of the United States be entered in Noel's ancillary action dismissing and striking the ancillary action from the active docket of the Court.
The parties are directed to 28 U.S.C. § 636(b)(1) for appeal rights and mechanics concerning this Report and Recommendation, issued under subsection (B) of the statute. See also Rule 8(b), Rules Governing Section 2255 Proceedings for the United States District Courts. Within fourteen (14) days after being served with a copy of this Report and Recommendation, any party may serve and file specific written objections to any or all findings or recommendations for determination, de novo, by the District Judge. Failure to make a timely objection consistent with the statute and rule may, and normally will, result in waiver of further appeal to or review by the District Judge and Sixth Circuit Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981).