Miсhael A. ROSIN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 14-10175.
United States Court of Appeals, Eleventh Circuit.
May 14, 2015.
873
The R & R adopted by the district court carefully analyzed the factual and temporal basis of J.S.‘s mental health treatment. Although Dr. Patterson had testified Keelan began grooming J.S. in the fall of 2009, the magistrate judge excluded all costs prior to February 14, 2010--the day Keelan first sexually abused J.S.--finding there was “no doubt” Keelan proximately caused J.S.‘s psychiatric problems after that date.8 The chronology of the trial evidence firmly supported the conclusion that J.S.‘s prior mental health problems were secondary to Keelan‘s manipulation and abuse. J.S.‘s mental well-being, according to his own trial testimony, deteriorated precipitously after Keelan sexually exploited him. Moreover, numerous letters and affidavits submitted from J.S.‘s medical providers stated Keelan‘s сriminal conduct was the driving force necessitating J.S.‘s treatment. We cannot conclude the district court clearly erred in finding Keelan proximately caused J.S.‘s mental health treatment expenses.
IV. CONCLUSION
In light of the foregoing reasons, we affirm Keelan‘s conviction and sentence.
AFFIRMED.
Yvette Rhodes, Arthur Lee Bentley, III, U.S. Attorney‘s Office, Tampa, FL, Katherine M. Ho, U.S. Attorney‘s Office, Orlando, FL, for Respondent-Appellee.
Before WILSON and ANDERSON, Circuit Judges, and VOORHEES,* District Judge.
WILSON, Circuit Judge:
Michael Rosin is a federal prisoner currently serving a 264-month term of imprisonment. He was convicted of thirty-five counts of health care fraud in violation of
I.
Rosin, a former dermatologist, owned a dermatology clinic and laboratory in Sarasota, Florida. In 2004, Rosin‘s long-time office manager filed a qui tam action alleging that Rosin had committed Medicare fraud by performing hundreds of unnecessary Mohs surgeries on his elderly patients.1 These allegations led to an investigation of Rosin‘s medical practicе and, eventually, to the filing of criminal charges against him. Rosin pleaded not guilty.
Rosin was tried in 2006 over a span of seventeen days. At trial, Rosin was represented by Theresa Van Vliet, Patsy Zimmerman-Keenan, and Gregory Kehoe. Many of Rosin‘s former employees testified against him at trial, and Rosin testified in his own defense. While on the stand, Rosin challenged the credibility of his former employeеs, claiming that they were biased because they stood to gain financially in exchange for their testimony and that they had set him up. After deliberating for one-and-one-half days, the jury convicted Rosin on all seventy counts charged in the indictment.
At Rosin‘s sentencing hearing, the district court calculated an offense level of thirty-eight and assigned a criminal history category of I. His calculated Sentencing Guidelines range was approximately nineteen to twenty-four years’ imprisonment. He was given an opportunity to make a statement before the imposition of his sentence, during which he never accepted personal responsibility for the crimes for which he had been convicted. The judge then sentenced him to a twenty-two-year term of imprisonment. Rоsin subsequently challenged his conviction and sentence on direct appeal, but we affirmed. See United States v. Rosin, 263 Fed.Appx. 16 (11th Cir.2008) (per curiam).
In 2009, Rosin timely filed the present
We previously considered Rosin‘s
II.
As mentioned above, both parties submitted affidavits in support of their respective arguments. Rosin attests in his affidavit that he asked Van Vliet if five to six years of imprisonment was a reasonable estimation of his potential prison sentence, to which Van Vliet replied, “That‘s about right.” Rosin claims that Van Vliet never told him that the court could potentially impose a twenty-two-year term of imprisonment, nor did she discuss the possibility of a plea bargain, its advantages or disadvantages, or whether it was in his best interest to seek one. Rosin asserts that “had [he] known [his] sentence could have been enhanced to 22 years[,] [he] would have insisted Theresa Van Vliet seek a plea bargain on [his] behalf or [he would] get a new attorney who would.”
However, Van Vliet‘s affidavit states that she gave Rosin a general assessment of a potential sentence if he were convicted as charged in the indictment, including the statutory maximum penalty for Medicare fraud, possible enhancements for conduct such as an abuse of position of trust, and informed him that his total sentencing exposure was the statutory maximum sentence for each charge in the indictment. Van Vliet contends that Rosin adamantly professed his innocence during her entire representation of him.
According to Van Vliet, she never once believed that there was a possibility that Rosin would consider a plea bargain because Rosin, as she puts it, “shut down any disсussion of such a course of action.” Because Rosin was unwilling to consider a genuine assessment of his case, Van Vliet avers she conducted a mock jury trial to persuade Rosin to consider a plea bargain in the event the mock trial produced unfavorable results. According to Van Vliet, Rosin did not “fare well” in front of the mock jury; jurors commented negatively regarding his сredibility. Van Vliet claims that despite such negative feedback, Rosin continued to profess his innocence and insisted on proceeding to trial.
Kehoe‘s affidavit largely corroborates the statements made by Van Vliet in her affidavit. According to Kehoe, at their initial meeting, “[I]t was clear from [Rosin‘s] professed statements of innocence that [Rosin] did not want to consider pleading guilty under any circumstances.” Kehoe contends that Rosin re-affirmed his position on several other occasions. Kehoe notes that the most considerable example of Rosin‘s unwillingness to concede guilt was when Rosin accused his trial counsel of being disloyal to him after counsel raised the prospect of a guilty plea. Kehoe attests that he wаs retained for the sole purpose of assisting Van Vliet at trial, and if the prospect of reaching a plea deal was being considered realistically, Van Vliet would have handled the case without his assistance.
Zimmerman-Keenan‘s affidavit also corroborates the statements made by Van Vliet and Kehoe in their affidavits. Zimmerman-Keenan recalls having a “cleаr
III.
Our analysis is focused on whether Rosin was entitled to an evidentiary hearing before the district court denied his
We review a district court‘s denial of an evidentiary hearing in a
When a challenge to the validity of a conviction on the basis of ineffective assistance of counsel arises in the context of the plea process, Strickland‘s two-part test applies. See Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 369-70, 88 L.Ed.2d 203 (1985). Therefore, in order to be entitled to an evidentiary hearing on any such challenge, a defendant must show that: (1) his trial counsel‘s “performance was deficient” and (2) that his trial counsel‘s “deficient pеrformance prejudiced the defense.” Strickland, 466 U.S. at 687.
Trial counsel is considered to have performed deficiently when she has “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Trial counsel‘s representation is judged by a standard of “reasonableness under prevailing professional norms,” and there is a “strong presumption that counsel‘s conduct [fell] within the wide range of reasonable professional assistance.” Id. at 688-89. Trial counsel‘s deficient performance prejudices the defense when “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Where the defendant argues that his lawyer‘s unprofеssional conduct during the plea stage prejudiced him, a defendant must show that there is “a reasonable probability that, but for counsel‘s errors, he would have pleaded guilty and would not have insisted on going to trial.” Coulter v. Herring, 60 F.3d 1499, 1504 (11th Cir.1995) (per curiam); see Hill, 474 U.S. at 59. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
In order for Rosin to have been entitled to an evidentiary hearing, hе had to make a credible allegation that he was prejudiced by his counsels’ deficient performance.2 In this case, prejudice requires a showing that, but for his trial counsels’ error, Rosin would have pleaded guilty and not insisted on going to trial. See Hill, 474 U.S. at 59. The alleged errors of his trial counsel were the erroneous calculation of Rosin‘s potential prison sentence if hе were to be convicted at trial and the failure to pursue plea negotiations. Therefore, Rosin was required to allege that he would have accepted a guilty plea and would not have insisted on going to trial but for his trial counsels’ alleged miscalculation of his potential prison sentence and failure to pursue plea negotiations. See id. at 59; see also Coulter, 60 F.3d at 1504.
Before the district court, Rosin alleged that, but for his trial counsels’ error, he would have insisted that his trial counsel “seek” a plea bargain on his behalf. Rosin did not allege, however, that he would have accepted a plea of guilt and would not have insisted on going to trial. See Coulter, 60 F.3d at 1504 (evidence of a defendant‘s willingness to enter a plea agreement, without proof that the defendant would have actually accepted a plea offer, was insufficient to establish that he was prejudiced by his counsel‘s alleged deficient performance). Merely alleging that he would have insisted that trial counsel “seek” a plea bargain is insufficient to show that the result of Rosin‘s proceedings would have been different had he done so. Rosin‘s assertion to the district сourt that he would have instructed his counsel to, in essence, inquire about a plea offer also assumes that he could have rejected such an offer had one been extended. Thus, because Rosin did not allege that he would have accepted a guilty plea and abstained from proceeding to trial but for the alleged errors of his trial counsel, Rosin has failed to show that the alleged errors prejudiced him. See Hill, 474 U.S. at 59; Coulter, 60 F.3d at 1504.
Furthermore, the record evidence affirmatively contradicts Rosin‘s claims on appeal that he would have accepted a plea bargain. See Holmes, 876 F.2d at 1553. It is well-settled that the district court is not required to grant an evidentiary hearing when the defendant‘s claims are affirmatively contradicted by the record evidеnce, nor is a hearing required if the claims are grounded upon generalizations that are unsupported by the record evidence. See Guerra, 588 F.2d at 521 (no hearing necessary when claims are based on unsupported generalizations); Holland v. United States, 406 F.2d 213, 216 (5th Cir.1969) (per curiam) (no hearing necessary when a petitioner‘s petition is supported by only factual claims that are legally incapable of justifying a finding in his favor).3
Rosin persistently refused to accept responsibility and adamantly professed his innocence during all stages of his criminal proceedings. In Van Vliet‘s affidavit, for example, she states that Rosin maintained his innocence and insisted on going to trial during her entire representation of him.
Rosin‘s refusal to accept any responsibility is further demonstrated by the record of Rosin‘s trial. While testifying, Rosin blamed other people for his plight, submitting to the jury that he had been set up by his employees and suggesting that his employees stood to gain financially in exchange for their testimony. To be clear, Rosin was by no means required to admit guilt or assume responsibility for the conduct alleged. Still, Rosin‘s actions at trial reflected an infinite resolve to proclaim his innocence; they did not manifest any intention on Rosin‘s part to accept responsibility for the conduct alleged. Even at his sentencing hearing, when afforded the opportunity to make a statement to the court and to, perhaps, accept personal responsibility for the conduct alleged, Rosin refused. We refuse to review Rosin‘s appeal in a vacuum; his assertions on appeal are informed by everything that came before it.
Thus, the record evidence patently contradicts Rosin‘s assertion on aрpeal that he would have accepted a guilty plea and not insisted on going to trial but for his trial counsels’ alleged error. See Holmes, 876 F.2d at 1553. The evidence shows that Rosin, in fact, had absolutely no interest in accepting any responsibility or guilt whatsoever. See Coulter, 60 F.3d at 1504. Rosin requests that we, in essence, accept his conclusory assertion on appeal that his failure to accept a guilty plea and his insistence on going to trial were caused by his trial counsels’ ineffective assistance. However, in the absence of any evidence other than his own conclusory after-the-fact assertion--and given the record evidence contradicting it--we cannot accept that conclusion.
IV.
Rosin failed to show that his trial counsels’ alleged deficient performance prejudiced him, and his allegations are affirmatively contradicted by the record evidence. Although we generally prefer that a district court simply hold an evidentiary hearing, in this circumstance we are compelled to find that the district court did not go so far as to abuse its discretion in denying Rosin‘s
AFFIRMED.
LELO INC., Leloi AB, Appellants
v.
INTERNATIONAL TRADE COMMISSION, Appellee.