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Ward v. United States

United States District Court, S.D. Florida

June 19, 2018

LYDIA WARD, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AFFIRMING AND ADOPTING REPORT OF MAGISTRATE JUDGE, DENYING MOTION TO VACATE, DENYING CERTIFICATE OF APPEALABILITY, AND CLOSING CASE

          PATRICIA A. SEITZ UNITED STATES DISTRICT JUDGE

         THIS CAUSE is before the Court on the Report of Magistrate Judge [DE 14], in which Magistrate Judge White recommends that Petitioner's Motion to Vacate be denied, that no certificate of appealability issue, and that this case be closed. The Petitioner has filed objections [DE 19].[1] Petitioner was indicted, tried, and convicted on one count of conspiracy to commit health care fraud. The Report found that Petitioner's Motion to Vacate [DE 1], Amended Motion to Vacate [DE 7], and Supplement to the Motion to Vacate [DE 8] raised six grounds for relief:

(1) Petitioner was denied effective assistance of trial counsel when her lawyer failed to object and preserve for appeal: (a) that the Court erred in permitting the Government to introduce into evidence post-arrest statements of cooperating co-defendants that implicated Petitioner; (b) that the Court erred in permitting the Government to question its cooperating witnesses about their guilty pleas in order to prove Petitioner's guilt; and (c) that the Court erred in allowing the Government to cross-examine the Petitioner regarding whether other witnesses had lied during trial.
(2) There was insufficient evidence adduced at trial to support Petitioner's conspiracy conviction since she neither agreed to join nor was otherwise part of the charged conspiracy.
(3) The trial court erred in allowing Quindoza to testify as an expert witness regarding Medicare coverage rules requiring that all patients be personally examined by physicians.
(4) The trial court erred in denying Petitioner the opportunity to call a rebuttal expert, Ms. Panzer, regarding Medicare guidelines and policies in order to rebut Quindoza's testimony.
(5) Petitioner was denied effective assistance of counsel, where her lawyer failed to investigate the Government's "probable misconduct" in another criminal case, which she maintains could also have occurred in her case.
(6) Petitioner is entitled to vacatur of her sentence and a minor role reduction to her base offense level in accordance with Amendment 794 to U.S.S.G. § 3B1.2.

         The Magistrate Judge found that all six grounds lacked merit and recommended denial of Petitioner's claims. While Petitioner does not object to the Magistrate Judge's recitation of the procedural history or the facts adduced at trial, Petitioner raises four objections to the Report:

(1) Petitioner was denied effective assistance of trial counsel when counsel failed to make timely objections to the admission of certain evidence at trial.
(2) Petitioner was denied effective assistance of trial counsel when counsel failed to present expert witnesses to refute the issues of Medicare fraud raised by the Government.
(3) Petitioner was denied effective assistance of trial counsel when counsel failed to properly investigate and present the evidence presented to him by Petitioner.
(4) Petitioner was denied effective assistance of appellate counsel because counsel failed to argue "plain error" on appeal.

         Petitioner's first two objections address issues 1, 3, and 4 in the Magistrate Judge's Report. Petitioner's last two objections, however, raise new claims, ...


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