United States District Court, E.D. North Carolina, Eastern Division
TERRENCE W. BOYLE CHIEF UNITED STATES DISTRICT JUDGE
cause comes before the Court on petitioner's second
amended pro se motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. [DE 89-1].
The government has moved to dismiss petitioner's second
amended § 2255 motion. [DE 103]. Petitioner has also
moved to stay a writ of execution [DE 94], petitioned for a
writ of audita querela [DE 96], moved for a
certificate of appealability [DE 100], and moved for leave to
supplement his second amended § 2255 [DE 106]. All of
the motions are ripe for disposition. For the reasons
discussed below, petitioner's motion for leave to
supplement his § 2255 [DE 106] is GRANTED, the
government's motion to dismiss [DE 103] is GRANTED and
petitioner's second amended § 2255 motion [DE 89-1]
is DISMISSED, petitioner's original § 2255 motion
[DE 60] is DENIED AS MOOT, and petitioner's motions to
stay the writ of execution [DE 94], obtain a writ of
audita querela [DE 96] and obtain a certificate of
appealability [DE 100] are all DENIED.
August 2015, petitioner pleaded guilty, pursuant to a written
plea agreement, to one count of health care fraud, in
violation of 18 U.S.C. § 1347, and one count of engaging
in monetary transactions in property derived from health care
fraud, in violation of 18 U.S.C. § 1957. [DE 19, 21].
Petitioner was fraudulently billing Medicaid and using the
proceeds on personal purchases. [DE 15, p. 10');">p. 10]. In March
2016, Judge James C. Fox sentenced petitioner to a total term
of 240 months' imprisonment, 3 years' supervised
release, a $200 special assessment, and restitution in the
amount of $5, 962, 189.77. [DE 29, 31]. Petitioner appealed
and the Fourth Circuit dismissed his appeal given the
appellate waiver in petitioner's plea agreement. [DE 52].
2018, petitioner moved to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. [DE60]. In October
2018, the Court granted petitioner leave to file a first
amended § 2255 motion. [DE 74]. In February 2019, the
Court denied petitioner's motion for judicial records.
[DE 87]. Then, in April, the Court denied petitioner's
motion for reconsideration of the Court's February order
but granted petitioner leave to file a second amended §
2255 motion. [DE 95]. In response to the Court's February
denial of his motion for judicial records and April denial of
his motion for reconsideration, petitioner has moved for a
certificate of appealability "on the issue of [w]hether
[p]etitioner, a citizen[, ] has a qualified right of access
to judicial records." [DE 100].
March 2019, the Clerk of Court issued a writ of execution on
real property located in Plymouth, North Carolina and in
which petitioner has a substantial financial interest. [DE
92]. The following month, petitioner moved to stay execution
of the writ given his pending § 2255 motion and his
intention to file a motion to quash the writ. [DE 94].
Shortly thereafter, he petitioned for a writ of audita
querela to "stop enforcement of judgment as to
restitution." [DE 96]. The government has responded in
opposition to petitioner's motion to stay execution and
petition for a writ of audita querela. [DE 110].
second amended § 2255 motion includes ten alleged
grounds for relief. Petitioner alleges that (1) trial counsel
was ineffective in failing to move to dismiss his charges
under the Speedy Trial Act, (2) trial counsel was ineffective
in "failing to recognize the violation of the Speedy
Trial Act and counseling a guilty plea to a count that should
have been dismissed," (3) that trial counsel was
ineffective in "failing to object to the Court's
failure to follow its own rules governing loss and
restitution," (4) that trial counsel was ineffective in
"failing to review the relevant guideline case law and
guidance for vulnerable victim enhancements," (5) that
trial counsel was ineffective in "failing to review the
relevant guideline case law and guidance for abuse of
position of trust," (6) that trial counsel was
ineffective in "fail[ing] to investigate the firearm
enhancement and object to the Court's application,"
(7) trial counsel was ineffective in "fail[ing] to
object to sophisticated means based on recent
amendments," (8) trial counsel was ineffective in
"fail[ing] to object to the number of victims," (9)
trial counsel was ineffective in "counseling a plea to
Count Two ... without adequate pre-plea investigation,"
and (10) the district court violated petitioner's due
process rights by "threatening to take away his
acceptance of responsibility for challenging inapplicable
sentencing enhancements" or, alternatively, appellate
counsel was ineffective "for not attacking the
[appellate] waiver on [the] basis [of] enhancements."
The government has moved to dismiss petitioner's second
amended § 2255 motion under Rule 12(b)(6) of the Federal
Rules of Civil Procedure for failure to state a claim upon
which relief can be granted. [DE 103]. Petitioner has
responded in opposition to the motion to dismiss.
Petitioner's motion for a certificate of appealability is
motion for a certificate of appealability on the question of
whether he has a "qualified right of access to judicial
records" must be denied. In October 2018, petitioner
moved this Court for an order directing the U.S. Probation
Office to "provide him copies of the [victims']
affidavits used to determine the loss and restitution"
in his case. [DE 75]. In February 2019, the Court denied
petitioner's motion, determining that petitioner was not
entitled under federal law to access any underlying victim
affidavits and that petitioner instead had the opportunity to
object to loss calculations contained in his presentence
report. [DE 87]. Petitioner moved for reconsideration of the
Court's February order and his motion for reconsideration
was denied. [DE 95]. Petitioner now seeks a certificate of
appealability on whether he, as a U.S. citizen, is entitled
to copies of victim affidavits.
of appealability, authorized by 28 U.S.C. § 2253, govern
the right to appeal the dismissal of a federal habeas corpus
petition. Slack v. McDaniel, 529 U.S. 473, 480-82
(2000). In order to obtain a certificate of appealability, a
petitioner must demonstrate that reasonable jurists would
find that a court's assessment of the constitutional
claims in a federal habeas petition are debatable and,
accordingly, any dispositive procedural ruling dismissing the
constitutional claims in the habeas petition is likewise
debatable. Miller-El v. Cockrell, 537 U.S. 322,
336-38 (2003). Because the motion at issue was not a federal
habeas petition, § 2253 is inapplicable. Petitioner is
not entitled to a certificate of appealability on the
Court's denial of his motion for judicial records.
Additionally, petitioner cannot obtain a certificate of
appealability to raise particular legal issues on appeal,
because in general, parties can only raise legal arguments on
appeal from a final judgment. The final judgment rule, with
some limited exceptions that are not applicable here, serves
as a bar on piecemeal appeals. See Koehler v. Bank of
Bermuda, Ltd., 101 F.3d 863, 865 (2d Cir. 1996). In sum,
petitioner is not entitled to a certificate of appealability
and his motion is denied.
Petitioner's motion to stay execution and petition for a
writ of audita querela are denied.
petitioner's motion to stay execution of the writ of
execution issued by the Clerk in March 2019 is denied.
Petitioner moved to stay execution of the writ so that he
could file a motion to quash and so that his § 2255
proceedings could be resolved. To date, however, petitioner
has not filed a motion to quash the writ of execution.
Instead, he has petitioned for a writ of audita
writ of execution was issued in March 2019 to require
petitioner to sell his property in Plymouth, North Carolina
in order to satisfy-at least in part-the restitution that he
owes. A restitution order is a final judgment. 18 U.S.C.
§ 3664(o). Under Rule 8 of the Federal Rules of
Appellate Procedure and Rule 38 of the Federal Rules of
Criminal Procedure, a federal district court has discretion
to stay collection of a restitution order. The party
requesting a stay bears the burden of establishing that a
stay is appropriate. Nken v. Holder,566 U.S. 418,
433-34 (2009). A court deciding whether to grant such a stay
should consider "(1) whether the stay applicant has made
a strong showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured ...