United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
matter is before the Court on petitioner's petition for
annulment of stipulated agreement of forfeiture [DE 153], the
government's motion to dismiss [DE 154], and
petitioner's motion to dismiss criminal information, to
withdraw plea agreement, and for return of property. [DE
168]. Petitioner has also requested that her restitution
payments be stayed pending the outcome, of her motion to
dismiss. [DE 169, 174]. The appropriate responses and replies
having been filed, or the time for doing so having passed,
the motions are ripe for ruling. For the reasons discussed
below, the government's motion to dismiss is granted and
petitioner's motion to dismiss is denied.
January 15, 2010, petitioner pled guilty, with the benefit of
a plea agreement, to one count of health care fraud and
aiding and abetting. [DE 7]. On September 10, 2010, the Court
sentenced petitioner to 120 months' imprisonment and 3
years' supervised release. [DE 41]. Petitioner did not
appeal the judgment. On September 9, 2011, petitioner filed a
motion pursuant to 28 U.S.C. § 2255. [DE 44]. On
November 28, 2011, the Court amended the judgment and
dismissed petitioner's remaining habeas claims as moot.
December 9, 2011, petitioner appealed from the amended
judgment and the Fourth Circuit Court of Appeals affirmed in
part and dismissed in part. [DE 57]. On July 30, 2013,
petitioner filed a motion pursuant to 28 U.S.C. § 2255.
[DE 61]. Petitioner filed a subsequent motion alleging an
invalid sentence and a motion for leave to conduct discovery.
The Court dismissed petitioner's § 2255 motion and
denied the subsequent motions. [DE 77]. On June 10, 2014, the
Court denied petitioner's motion for reconsideration, and
to the extent that the motion raised new grounds for relief
under § 2255, dismissed those claims as second or
successive. [DE 90]. Petitioner noticed an appeal of that
order, [DE 95], and that appeal was dismissed. [DE 103]. This
Court subsequently denied petitioner's motion for return
of property [DE 109], which petitioner appealed and which
appeal was dismissed by the court of appeals. [DE 117].
Court denied a subsequent motion for return of property due
to violation of the Civil Asset Forfeiture Reform Act on
March 3, 2016, [DE 134], and petitioner's motion for a
new trial on June 24, 2016. [DE 148]. Petitioner noticed an
appeal of the order denying her motion for return of property
and for a new trial; the same day petitioner appealed the
order denying her motion for new trial she filed her petition
for annulment of stipulated agreement, which the government
has moved to dismiss. The Court's order denying
petitioner's motion for return of property was affirmed
by opinion entered August 30, 2016. [DE 158]. The court of
appeals affirmed this Court's denial of petitioner's
motion for new trial by opinion entered November 28, 2016.
[DE 162]. On December 8, 2016, the court of appeals denied
petitioner's motion under 28 U.S.C. § 2244 for an
order authorizing this Court to consider a second or
successive application for relied under 28 U.S.C. §
2255. [DE 165].
February 2, 2017, petitioner filed her motion to dismiss the
criminal information which is now before the Court.
Petition for annulment
petition for annulment of stipulated agreement for forfeiture
order, petitioner argues that the government procedurally
defaulted in its pursuit of criminal forfeiture under Fed. R.
Crim. P. 32 and that there was insufficient evidence to show
that she aided and abetted in health care fraud.
Court has previously held, a criminal forfeiture judgment,
which in this case was entered with consent, "must be
challenged on direct appeal or not at all." Young v.
United States, 489 F.3d 313, 315 (7th Cir. 2007)
(listing cases holding same); see also United States v.
Martinez-Mata, No. 3:14CV10, 2014 WL 5430992, at *2
(E.D. Va. Oct. 24, 2014) (challenge to criminal forfeiture
must be made on direct appeal or challenge is waived). The
criminal forfeiture of petitioner's property was a part
of her sentence and judgment. [DE 51 at 7]. Petitioner failed
to appeal her criminal forfeiture, and her challenge to it
has therefore been waived. Moreover, this Court has
previously denied petitioner's efforts to challenge the
criminal forfeiture, those denials have been affirmed on
appeal, and petitioner in her instant filing has provided no
basis upon which vacatur or modification of her criminal
forfeiture judgment is warranted.
insofar as petitioner challenges the validity of her
underlying conviction on which the criminal forfeiture is
based, petitioner has previously filed a motion pursuant to
28 U.S.C. § 2255 which was dismissed on the merits, [DE
77], and the Court must reconstrue her petition for annulment
as a second or successive motion under § 2255, which
this Court is without jurisdiction to consider absent
authorization from the court of appeals. See United
States v. Winestock, 340 F.3d 200, 206-07 (4th Cir.
2003) ("a motion directly attacking the prisoner's
conviction or sentence will usually amount to a successive
application" as will "new legal arguments or
proffers of additional evidence"); 28 U.S.C. §
2255(h) (appropriate court of appeals must certify a second
or successive motion for filing); Fed.R.Civ.P. 12(b)(1). The
facts relied on by petitioner in the instant motion existed
at the time she filed her first § 2255 motion which was
adjudicated on the merits, and the Court's construal of
the instant filing as second or successive is proper. See
United States v. Hairston, 754 F.3d 258, 262 (4th Cir.
2014). The government's motion to dismiss the petition
for annulment is granted.
Motion to dismiss criminal information
seeks dismissal of her criminal information, to withdraw her
plea agreement, and for return of her property. Petitioner
bases her motion on alleged violations of the Sixth Amendment
to the United States Constitution, the North Carolina Rules
of Professional Conduct, and the Code of Judicial Conduct.
Petitioner alleges that her trial and appellate counsel were
ineffective and had conflicts of interest when they
represented her, specifically alleging that this conflict was
present because attorneys Gilchrist and Mitchell were ...