USA v. Cruise

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA, §
§
Plaintiff/Respondent, §
§ CIVIL ACTION NO. H-25-2169
v. § (CRIMINAL NO. H-18-0344-01)
§ CIVIL ACTION NO. H-25-2624
JOHN CRUISE and § (CRIMINAL NO. H-18-0344-02)
LASHONIA JOHNSON, §
§
Defendants/Petitioners. §
AMENDED1 MEMORANDUM OPINION AND ORDER
John Cruise and Lashonia Johnson (collectively, “Petitioners”)
were found guilty of conspiracy to commit wire fraud and health
care fraud, in violation of 18 U.S.C. §§ 1349, 1347, and 1343.2
Pending before the court are Petitioners’ Motions to Jointly File
28 USCS § 2255 Petition Pursuant to F.R.C.P. 20 (Docket Entry
Nos. 1104, 1114); Requests to File Oversized 28 U.S.C. § 2255
Briefs (Docket Entry Nos. 1100, 1113); and Petitioners’ Motions
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By
a Person in Federal Custody (“Cruise’s § 2255 Motion,” Docket Entry
No. 1102) (“Johnson’s § 2255 Motion,” Docket Entry No. 1115).
Johnson has also filed numerous motions to amend her § 2255 Motion
(Docket Entry Nos. 1131, 1172, 1179, 1183, 1188); motions for bond
1Page 1 of this Amended Memorandum Opinion and Order is
amended to correct the civil action number for Lashonia Johnson.
2Judgment in a Criminal Case (Cruise), Docket Entry No. 783,
p. 1; Judgment in a Criminal Case (Johnson), Docket Entry No. 786,
p. 1. For purposes of identification, all page numbers refer to
the pagination imprinted at the top of the page by the court’s
Electronic Case Filing System.
United States District Court
Southern District of Texas
ENTERED
April 16, 2026
Nathan Ochsner, Clerk
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pending appeal (Docket Entry Nos. 1112, 1132, 1151, 1154, 1161,
1171, 1178, 1190, 1217); motions to unseal certain documents (Docket
Entry Nos. 1162, 1163, 1222); a Motion for Discovery Under Rule 6 of
the Rules Governing 2255 Proceedings (Request for Grand Jury
Transcript) (Docket Entry No. 1175); a Motion for Judicial Admission
and Judicial Estoppel (Docket Entry No. 1195); and a Pro Se Motion
for Correction of Presentence Investigation Report Pursuant to Fed.
R. Crim. P. 32 (Docket Entry No 1213). Cruise has filed a Motion
for Release Pending Appeal (Docket Entry No. 1101); Petitioner’s
Supplemental Motion in Support of 28 U.S.C. § 2255 Motion (“Cruise’s
§ 2255 Supplement”) (Docket Entry No. 1191); a Motion for
Evidentiary Hearing Pursuant to 28 U.S.C. § 2255(b) (Docket Entry
No. 1223); and a Request to Take Judicial Notice of Substitution of
Government Counsel (Docket Entry No. 1224).
I. Background
On July 20, 2018, Petitioners were indicted alongside eleven
codefendants in this case.3 The 26-count indictment alleged that
Petitioners were involved in “a $126 million compounding-fraud
scheme to defraud the Department of Labor’s . . . insurance program
for federal workers and TRICARE, a health program for members of
the military and their families.”4
3Indictment, Docket Entry No. 1, p. 1.
4United States’ Combined Opposition to Petitioners John Cruise
and Lashonia Johnson’s Motions to Vacate, Set Aside, or Correct
Sentences Pursuant to 28 U.S.C. § 2255 (“Government’s Response”)
Docket Entry No. 1203, p. 3 (sealed); Indictment, Docket Entry
No. 1, pp. 1-2, 4-5 ¶¶ 1, 16-28.
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On October 21, 2021, after consulting with their retained
counsel, Petitioners pled guilty to count two of the indictment,
“which charged them with conspiracy to commit wire fraud and health
care fraud, in violation of 18 U.S.C. § 1349.”5 During their plea
hearing, Petitioners stated that they were fully satisfied with the
advice and counsel their attorneys provided them and confirmed that
the factual bases contained in their plea agreements were a true
and correct description of their roles in the offense.6 The court
explained the consequences of entering a guilty plea and warned
Petitioners about the maximum sentence they each faced.7 The court
accepted the Petitioners guilty pleas after finding that
Petitioners were “fully competent and capable of entering . . . a
knowing and voluntary plea.”8
After they pled guilty Petitioners began cooperating with the
Government. The court repeatedly continued Petitioners’ sentencing
5Government’s Response, Docket Entry No. 1203, p. 4 (sealed);
Rearraignment (Cruise), Docket Entry No. 451; Rearraignment
(Johnson), Docket Entry No. 454; Plea Agreement (Cruise), Docket
Entry No. 452, p. 1 (sealed); Plea Agreement (Johnson), Docket
Entry NO. 455, p. 1. Petitioners retained individual counsel to
represent them in this matter: Cruise retained Attorneys Kent
Schaffer and James Kennedy and Johnson retained Attorney Dan
Cogdell. Cruise’s § 2255 Motion, Docket Entry No. 1102, p. 10;
Johnson’s § 2255 Motion, Docket Entry No. 1115, p. 10.
6Transcript of Re-arraignment Proceedings Heard Before the
Honorable Sim Lake, United States District Judge (“Rearraignment
Transcript”), Docket Entry No. 662, p. 8 lines 14–16, p. 10 lines
23–25, p. 28 lines 2–4, p. 29 lines 18–20.
7Id. at 13 line 22 thru p. 14 line 24, p. 18 line 23 thru
p. 24 line 10.
8Id. at 28 lines 13–20 (Cruise); p. 30 lines 16-22 (Johnson).
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so that they could complete their cooperation.9 Their cooperation
included providing the Government with details about their
participation in the conspiracy and “how key aspects of the scheme
worked.”10
Over a year after pleading guilty, Petitioners retained new
counsel: Cruise retained Attorneys Meredith Carpenter-Black and
Gordon Armstrong and Johnson retained Attorney Jason Darley.11
Petitioners then filed motions to withdraw their pleas, asserting
actual innocence.12 After holding a hearing on their motions, the
court denied Petitioners’ motions to withdraw their pleas, finding
“that the totality of the circumstances [did] not favor allowing
[Petitioners] to withdraw [their] guilty plea[s]” because they
“failed to show that any of the seven Carr factors weigh[ed] in
[their] favor.13
On April 13, 2023, the court sentenced Cruise to 240 months’
imprisonment and Johnson to 180 months’ imprisonment.14
9Order Resetting Sentencing, Docket Entry No. 483 (Cruise);
Order Resetting Sentencing, Docket Entry No. 522 (all defendants).
10Government’s Response, Docket Entry No. 1203, p. 4 (sealed).
11Cruise’s § 2255 Motion, Docket Entry No. 1102, p. 10;
Johnson’s § 2255 Motion, Docket Entry No. 1115, p. 10.
12Motion to Withdraw Plea (Cruise), Docket Entry No. 682, p. 1;
Motion to Withdraw Guilty Plea (Johnson), Docket Entry No. 679,
p. 1.
13Memorandum Opinion and Order (Cruise), Docket Entry No. 692,
p. 7; Memorandum Opinion and Order (Johnson), Docket Entry No. 693,
pp. 7–8.
14Judgment in a Criminal Case (Cruise), Docket Entry No. 783,
pp. 1–2; Judgment in a Criminal Case (Johnson), Docket Entry
No. 786, pp. 1–2.
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After sentencing, Johnson retained Attorney Susan Clouthier
while Cruise continued to be represented by Attorney Armstrong.15
Petitioners appealed their sentences and convictions to the Fifth
Circuit, which affirmed the court’s decision to deny Petitioners’
motions to withdraw their guilty pleas and Petitioners’ sentences
and convictions.16 The Fifth Circuit issued Cruise’s opinion on
March 12, 2024, and Johnson’s opinion on June 13, 2024.17 Because
Petitioners did not file a writ of certiorari, their convictions
became final 90 days after the Fifth Circuit issued its decisions:
June 12, 2024, for Cruise and September 13, 2024, for Johnson.
Dodd v. United States, 125 S. Ct. 2478, 2480 (2005). Accordingly,
Cruise had until June 12, 2025, to file a § 2255 motion while
Johnson had until September 13, 2025. See 28 U.S.C. § 2255(f)(1).
On April 23, 2025, Cruise filed his § 2255 Motion, alleging
ineffective assistance of counsel and prosecutorial misconduct.18
On June 3, 2025, Johnson filed her § 2255 Motion, alleging
15Johnson’s § 2255 Motion, Docket Entry No. 1115, p. 10;
Cruise’s § 2255 Motion, Docket Entry No. 1102, p. 10.
16Notice of Appeal (Cruise), Docket Entry No. 840; Notice of
Appeal (Johnson), Docket Entry No. 828, p. 1; Opinion of the Fifth
Circuit Court of Appeals (Cruise), Docket Entry No. 1047, pp. 2–3;
Opinion of the Fifth Circuit Court of Appeals (Johnson), Docket
Entry No. 1058, pp. 2–3.
17Opinion of the Fifth Circuit Court of Appeals (Cruise),
Docket Entry No. 1047, p. 1; Opinion of the Fifth Circuit Court of
Appeals (Johnson), Docket Entry No. 1058, p. 1.
18Cruise’s § 2255 Motion, Docket Entry No. 1102, p. 12;
Cruise’s § 2255 Supplement, Docket Entry No. 1191, p. 15.
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ineffective assistance of counsel and prosecutorial misconduct.19
Petitioners have requested to jointly file their § 2255 motions.20
Before Johnson’s one-year filing deadline had expired, she filed
two motions to amend her § 2255 Motion, asserting additional
grounds for habeas relief.21 She filed three more motions to amend
her § 2255 Motion after her one-year filing deadline.22
A number of additional motions are pending before the court:
(1) Petitioners have filed numerous motions requesting bond while
their § 2255 Motions are considered;23 (2) Johnson has filed
19Johnson’s § 2255 Motion, Docket Entry No. 1115, pp. 4–8.
20Motion to Jointly File 28 USCS § 2255 Petition Pursuant to
F.R.C.P. 20 (Cruise), Docket Entry No. 1104; Motion to Jointly File
28 USCS § 2255 Petition Pursuant to F.R.C.P. 20 (Johnson), Docket
Entry No. 1114.
21Addendum Additional Grounds to the 28 U.S.C. 2255 (“Johnson’s
Addendum”), Docket Entry No. 1131; Motion to Amend “Prior
Submitted” 2255 Motion Pursuant to Fed. R. Civ. P. (15)(a)
(“Johnson’s Motion to Amend”), Docket Entry No. 1172.
22Motion to Amend “Prior Submitted” 2255 Motion Pursuant to
Fed. R. Civ. P. (15)(a), Docket Entry No. 1179 (sealed);
Petitioner’s Motion to Amend Pending § 2255 Petition Under Fed. R.
Civ. P. 15(a), Docket Entry No. 1183; Petitioner’s Motion to Amend
Pending § 2255 Petition Under Fed. R. Civ. P. 15(a), Docket Entry
No. 1188.
23Notice of No Opposition and Request for Ruling on Defendant’s
Motion for Bond Appeal (Johnson), Docket Entry No. 1132; Petitioner
Lashonia Johnson Motion for Bond Pending Her 2255 in Response to
United States Opposition, Docket Entry No. 1151; Petitioner
Lashonia Johnson Motion for Bond Pending Her 2255 in Response to
United States Opposition, Docket Entry No. 1154; Petitioner
Lashonia Johnson Motion for Bond Pending Her 2255 in Response to
United States Opposition, Docket Entry No. 1161; Amended Motion for
Release Pending 28 U.S.C. 2255 Habeas Review Appeal (Johnson),
Docket Entry No. 1171; Emergency Motion for Expedited on Bond
Pending 2255 Proceedings (Johnson), Docket Entry No. 1178;
(continued...)
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numerous motions asking the court to unseal or asking the
Government to produce various documents, a motion requesting
judicial admission and estoppel, and a motion requesting a
correction to her Presentence Investigation Report;24 and (3) Cruise
has filed a motion requesting an evidentiary hearing and a motion
requesting that the court take notice of the substitution of
Government counsel.25
On December 14, 2025, the Government filed a response opposing
both of Petitioners’ § 2255 Motions.26 On January 23, 2026,
Petitioners filed a joint reply.27 Each attorney involved in this
23(...continued)
Emergency Motion to Expedite Ruling and Grant Temporary Release
Pending 2255 Resolution (Johnson), Docket Entry No. 1190; Motion
for Status and Expedited Ruling on Emergency Release and § 2255
Motion (Johnson), Docket Entry No. 1217; Motion for Release Pending
Appeal (Cruise), Docket Entry No. 1101.
24Motion to Unseal Response Affidavit to File Response Motion
to Government Opposition and Prosecutor Misconduct and Interference
with Legal Mail and Court Filings, Docket Entry No. 1162;
Amendment: Motion to Unseal Response Affidavit [to] File Response
to Government Opposition and Prosecutorial Misconduct Concerning
Interference with Legal Mail and Court Filings, Docket Entry
No. 1163; Motion for Discovery Under Rule 6 of the Rules Governing
2255 Proceedings (Request for Grand Jury Transcript), Docket Entry
No. 1175; Request for Access to Sealed Docket Entries, Docket Entry
No. 1222; Petitioner’s Motion for Judicial Admission and Judicial
Estoppel, Docket Entry No. 1195; Pro Se Motion for Correction of
Presentence Investigation Report Pursuant to Fed. R. Crim. P. 32,
Docket Entry No. 1213 (sealed).
25Motion for Evidentiary Hearing Pursuant to 28 U.S.C.
§ 2255(b), Docket Entry No. 1223; Request to Take Judicial Notice
of Substitution of Government Counsel, Docket Entry No. 1224.
26Government’s Response, Docket Entry No. 1203, p. 3 (sealed).
27Joint Reply to the Government’s Response and Supplemental
Memorandum in Support of § 2255 Relief Addressing Petitioner
(continued...)
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action has filed an affidavit addressing Petitioners’ claims of
ineffective assistance of counsel.28
On February 25, 2026, the Government also filed a response
opposing Johnson’s motion to correct her presentence investigation
report.29 Johnson has filed a reply.30
II. Analysis
Pending before the court are (1) Petitioners’ original § 2255
Motions and Johnson’s motions to amend her original § 2255 Motion,
(2) Petitioners’ motions requesting bond, and (3) Johnson’s motion
requesting judicial admission and estoppel, and (4) Johnson’s
motion requesting a correction to her Presentence Investigation
Report.31
27(...continued)
Lashonia Johnson’s Individual Additional Grounds, Docket Entry
No. 1209. Cruise also filed an individual reply on January 23,
2026 (Reply to the United States’ Combined Opposition Motion - 28
U.S.C. § 2255, Docket Entry No. 1211).
28Affidavit of Susan J. Clouthier (“Clouthier Affidavit”)
(Johnson), Docket Entry No. 1137 (sealed); Affidavit of Kent A.
Schaffer (“Schaffer Affidavit”) (Cruise), Docket Entry No. 1142
(sealed); Affidavit of James M. Kennedy (“Kennedy Affidavit”)
(Cruise), Docket Entry No. 1143 (sealed); Affidavit of Gordon G.
Armstrong, III (“Armstrong Affidavit”) (Cruise), Docket Entry
No. 1144 (sealed); Affidavit of Jason Darley (“Darley Affidavit”)
(Johnson), Docket Entry No. 1152 (sealed); Affidavit of Dan L.
Cogdell (“Cogdell Affidavit”) (Johnson), Docket Entry No. 1155
(sealed).
29Response in Opposition to Defendant’s Motion to Amend
Presentence Investigation Report, Docket Entry No. 1219 (sealed).
30Defendant’s Reply in Support of Motion for Clarification of
Presentence Investigation Report, Docket Entry No. 1221.
31The court will not address the following pending motions in
detail because they are moot: Motion to Unseal Response Affidavit
(continued...)
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A. Petitioners’ § 2255 Motions
Petitioners’ original § 2255 Motions argue that they are
entitled to habeas relief because (1) they received ineffective
assistance of counsel and (2) the government engaged in
prosecutorial misconduct throughout their case.32
On November 10, 2025, Cruise filed a supplement to his § 2255
Motion.33 Although the supplement was filed outside of Rule 15(a)’s
21-day window and outside AEDPA’s one-year limitation, the court,
in its discretion, will permit and consider the arguments contained
in the amendment because it “‘clarifies or amplifies a claim or
theory in a timely filed § 2255 petition after ADEPA’s one year
statute of limitations has expired’” as opposed to seeking “to add
an entirely new claim or new theory of relief.” United States v.
Flores-Guerrero, No. CIV A. H-04-4617, 2006 WL 2161740, at *3 (S.D.
Tex. July 27, 2006) (quoting United States v. Thomas, 221 F.3d 430,
433–34 (3rd Cir. 2000)).
31(...continued)
to File Response Motion to Government Opposition and Prosecutor
Misconduct and Interference with Legal Mail and Court Filings,
(Docket Entry No. 1162); Amendment: Motion to Unseal Response
Affidavit [to] File Response to Government Opposition and
Prosecutorial Misconduct Concerning Interference with Legal Mail
and Court Filings (Docket Entry No. 1163); Motion for Discovery
Under Rule 6 of the Rules Governing 2255 Proceedings (Request for
Grand Jury Transcript) (Docket Entry No. 1175); Cruise’s Motion for
Evidentiary Hearing Pursuant to 28 U.S.C. § 2255(b) (Docket Entry
No. 1223); and Cruise’s Request to Take Judicial Notice of
Substitution of Government Counsel (Docket Entry No. 1224).
32Cruise’s § 2255 Motion, Docket Entry No. 1102, pp. 4–8;
Johnson’s § 2255 Motion, Docket Entry No. 1115, pp. 4–8.
33Cruise’s § 2255 Supplement, Docket Entry No. 1191, p. 15.
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On July 11, 2025, Johnson filed a supplement to her § 2255
Motion.34 On September 22, 2025, she filed a motion to amend her
§ 2255 Motion.35 Both filings assert new claims or theories of
relief.36 Although the motions assert new claims, because they were
filed within or around the AEDPA’s one-year limitation, the court
will consider the new claims raised in both motions. See United
States v. Callen, Civil Action No. H-14-207, 2015 WL 1034245, at
*12 (S.D. Tex. Mar. 10, 2015) (explaining that an addendum to a
§ 2255 motion must be filed within AEDPA’s one-year limitation);
Terry v. United States, No. 2:04CR113-P-B, 2009 WL 3297209, at *9
(N.D. Miss. Oct. 9, 2009) (ruling on Petitioner’s addendum that was
filed within AEDPA’s one-year limitation).37
The court therefore considers Cruise’s § 2255 Motion as
supplemented by Docket Entry No. 1191 and Johnson’s § 2255 Motion
as amended by Docket Entry Nos. 1131 and 1172.
34Johnson’s Addendum, Docket Entry No. 1131.
35Johnson’s Motion to Amend, Docket Entry No. 1172.
36Johnson’s Addendum, Docket Entry No. 1131, p. 5; Johnson’s
Motion to Amend, Docket Entry No. 1172, p. 1.
37Johnson filed three motions to amend after her one-year
filing deadline had expired. Motion to Amend “Prior Submitted”
2255 Motion Pursuant to Fed. R. Civ. P. (15)(a), Docket Entry
No. 1179 (sealed); Petitioner’s Motion to Amend Pending § 2255
Petition Under Fed. R. Civ. P. 15(a), Docket Entry No. 1183;
Petitioner’s Motion to Amend Pending § 2255 Petition Under Fed. R.
Civ. P. 15(a), Docket Entry No. 1188. Because the motions were
filed outside of her one-year filing deadline and because the
motions assert the same arguments raised in Docket Entry Nos. 1131
and 1172, which the court will consider, Johnson’s subsequent
motions to amend will be denied as moot.
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1. Ineffective Assistance of Counsel Claims
Petitioners’ original § 2255 Motions assert that their counsel
were ineffective by failing to: (1) move to dismiss the
indictment, (2) move to sever counts and defendants, (3) disclose
joint representation before the court in violation of Rule 44 of
the Federal Rules of Criminal Procedure, (4) move to withdraw
Petitioners’ guilty pleas, (5) present evidence of a Brady
violation, and (6) impeach the Government attorney with secret
recordings.38 Johnson’s amendments also assert that her counsel
were ineffective by failing to (1) raise certain objections to the
indictment and presentence investigation report, (2) review the
final presentence investigation report with her, (3) raise a
selection prosecution claim, (4) allege that Johnson lacked
criminal intent, and (5) adequately represent Johnson on appeal.39
“A claim for ineffective assistance of counsel is properly
made in a § 2255 motion because it raises an issue of
constitutional magnitude and, as a general rule, cannot be raised
on direct appeal.” United States v. Conley, 349 F.3d 837, 839 n.1
(5th Cir. 2003) (internal quotation marks and citation omitted).
To prevail on an ineffective assistance of counsel claim a
convicted defendant must show (1) that defense counsel’s
38Cruise’s § 2255 Motion, Docket Entry No. 1102, pp. 4–8;
Cruise’s § 2255 Supplement, Docket Entry No. 1191, p. 2; Johnson’s
§ 2255 Motion, Docket Entry No. 1115, pp. 39, 40–49.
39Johnson’s Addendum, Docket Entry No. 1131, pp. 1–5.
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performance was deficient and (2) that the deficient performance
prejudiced the defendant. Strickland v. Washington, 104 S. Ct.
2052, 2064 (1984).
Performance is deficient if the defendant’s lawyer “made
errors so serious that [he] was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. “[A] court
must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Id.
at 2065. “[S]trategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually
unchallengeable.” Id. at 2066.
To show 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.”
Id. at 2068. For a trial error, the defendant must show that
counsel’s errors were “‘so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable.’” Harrington v.
Richter, 131 S. Ct. 770, 787-88 (2011).
The court addresses each of Petitioners’ claims in the order
they allegedly occurred.
a. Pre-Plea Claims of Ineffective Assistance of
Counsel
“A voluntary guilty plea waives all nonjurisdictional defects
in the proceedings against the defendant,” which “includes claims
of ineffective assistance of counsel except insofar as the
ineffectiveness is alleged to have rendered the guilty plea
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involuntary.” United States v. Glinsey, 209 F.3d 386, 392 (5th
Cir. 2000).
The record clearly establishes that Petitioners’ guilty pleas
were knowing and voluntary. During their plea hearings the court
ensured that Petitioners understood the consequences of pleading
guilty, warned Petitioners about the maximum sentence each
Petitioner faced, and reviewed specific provisions of the plea
agreements with Petitioners.40 Based on Petitioners’ responses to
the court’s questions, the court found the Petitioners were
entering their guilty plea knowingly, freely, and voluntarily.41
These findings were affirmed by the court’s order denying
Petitioners’ motions to withdraw their guilty pleas and by the
Fifth Circuit.42
Accordingly, because Petitioners entered knowing and voluntary
pleas, all of their ineffective assistance of counsel claims that
occurred before the pleas are waived. Glinsey, 209 F.3d at 392.
However, even if Petitioners’ pre-plea claims were not waived
by their knowing and voluntary pleas, their claims fail on the
merits.
40Rearraignment Transcript, Docket Entry No. 662, p. 13 line 22
thru p. 14 line 24; p. 18 line 23 thru p. 24 line 10.
41Id. at 28 lines 5-7 and lines 13–20 (Cruise); p. 30
lines 16–22 (Johnson).
42Memorandum Opinion and Order (Cruise), Docket Entry No. 692,
pp. 4–6; Memorandum Opinion and Order (Johnson), Docket Entry
No. 693, pp. 4–6; Opinion of the Fifth Circuit Court of Appeals
(Cruise), Docket Entry No. 1047, p. 1; Opinion of the Fifth Circuit
Court of Appeals (Johnson), Docket Entry No. 1058, p. 1.
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i. Failure of Schaffer, Kennedy, and Cogdell to
Move to Dismiss the Indictment
Petitioners assert that their counsel were ineffective in
failing to move to dismiss the indictment because it was improperly
based on Cruise’s immunized statements from a prior federal case,
Rose v. United States.43 Petitioners also assert that their counsel
were ineffective in failing to move for a Kastigar hearing.44
There is no evidence before this court that suggests the
indictment in this case was improperly based on Cruise’s immunized
statements. In fact, the record reflects that there was no
immunity agreement between Cruise and the Government in Rose. In
his Affidavit Attorney Schaffer stated:
In fact, I did not know that [Cruise] ever received any
type of grant of immunity, and I do not believe that
immunity was ever conferred upon him. At no time did he
ever tell me that he was immunized and while he told me
that he had testified at the [Rose] trial, it was my
understanding that he had received no assurances from the
government. . . . I later came to understand that at no
time was Mr. Cruise given immunity.
All of that being said, the charges in Mr. Cruises’
indictment had nothing to do with the [Rose] case. In a
Kastigar hearing the government would be required to
prove that they are not using evidence that was derived
43Cruise’s § 2255 Motion, Docket Entry No. 1102, pp. 4–5;
Cruise’s § 2255 Supplement, Docket Entry No. 1191, pp. 2–3;
Johnson’s § 2255 Motion, Docket Entry No. 1115, pp. 4–5, 21–27.
44Cruise’s § 2255 Motion, Docket Entry No. 1102, pp. 4–5;
Cruise’s § 2255 Supplement, Docket Entry No. 1191, pp. 2–3;
Johnson’s § 2255 Motion, Docket Entry No. 1115, pp. 4–5. In
Kastigar v. United States, 92 S. Ct. 1653 (1972), the Court held
that when the prosecution uses privileged information in an
indictment, they have “the affirmative duty to prove that the
evidence it proposes to use is derived from a legitimate source
wholly independent of the compelled testimony.” Id. at 1665.
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from Mr. Cruise’s prior testimony if that testimony was
given under a grant of immunity or was compelled by a
court in any way. This was not what happened, so I saw
no reason to file a motion for a Kastigar hearing.45
In his Affidavit Attorney Kennedy stated:
Both [the counsel for the government] and [defendant’s
former counsel] confirmed that the defendant did not
provide testimony under a proffer of immunity.
. . . Given all of this, after several discussions with
the trial team, we felt there were no grounds for a
Kastigar hearing because there was no immunized
testimony, and there was no tainted grand jury
evidence.46
Because the indictment did not rely on immunized statements,
a motion to dismiss the indictment and secure a Kastigar hearing
would have been futile. Counsel therefore had no obligation to
file it. United States v. Kimler, 167 F.3d 889, 893 (5th Cir.
1999) (stating that counsel is not required to file futile motions
“because the result of the proceeding would not have been different
had [counsel] raised the issue”).
Petitioners also assert that counsel should have moved to
dismiss the indictment because it (1) excluded certain facts,
(2) misrepresented certain facts, and (3) excluded certain members
of the conspiracy, such as Dr. Lanier.47 In support of this
assertion, Petitioners allege that the government intentionally
45Schaffer Affidavit, Docket Entry No. 1142, pp. 1–2 (sealed).
46Kennedy Affidavit, Docket Entry No. 1143, pp. 1–2 (sealed).
47Cruise’s § 2255 Motion, Docket Entry No. 1102, p. 4; Cruise’s
§ 2255 Supplement, Docket Entry No. 1191, p. 4; Johnson’s § 2255
Motion, Docket Entry No. 1115, p. 4.
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left out certain facts in order to “create confusion and improperly
assign guilt.”48
“An indictment is legally sufficient if (1) ‘each count
contains the essential elements of the offense charged,’ (2) ‘the
elements are described with particularity,’ and (3) ‘the charge is
specific enough to protect the defendant against a subsequent
prosecution for the same offense.’” United States v. Cooper, 714
F.3d 873, 877 (5th Cir. 2013) (quoting United States v. Threadgill,
172 F.3d 357, 366 (5th Cir. 1999)). “The government generally
enjoys broad discretion in determining whom it will prosecute.”
United States v. Ryan, 619 F.Supp.3d 581, 590 (E.D. La. 2022). The
record establishes that the indictment was sufficient. In his
affidavit Attorney Schaffer stated:
While it is permissible to file a motion to quash the
indictment if it fails to state the elements of the
offense; in this case I believe that the indictment
contained sufficient language and notice and there would
have been no basis for quashing the indictment.49
In his Affidavit Attorney Cogdell stated:
. . . [T]here simply is no legal basis for filing a
motion to dismiss the indictment based upon insufficient
evidence. Indeed, even had there been any such basis,
the evidence against Ms. Johnson was certainly sufficient
to overcome any such challenge.50
48Cruise’s § 2255 Supplement, Docket Entry No. 1191, p. 4.
49Schaffer Affidavit, Docket Entry No. 1142, p. 4 (sealed).
50Cogdell Affidavit, Docket Entry No. 1155, p. 2 (sealed).
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Petitioners do not explain how the indictment was insufficient
nor do they demonstrate that a motion to dismiss would have been
granted. Marshall v. Cockrell, No. 3:01-CV-0511-R, 2002 WL 1733718,
at *8 (N.D. Tex. July 25, 2002). Accordingly, counsel were not
ineffective for failing to move to dismiss the indictment for a
lack of sufficiency.
For the reasons explained above, the court finds that
Petitioners have failed to establish either prong of the Strickland
test for these claims.
ii. Failure of Cogdell to Raise a Selective
Prosecution Claim
Johnson argues that her counsel was ineffective in failing to
raise a selective prosecution claim.51 She argues that the
Government engaged in selective prosecution by failing to indict
other physicians who wrote the same prescriptions.52
“To establish that the government has engaged in
unconstitutionally discriminatory selective prosecution, a
defendant must make a two-pronged showing.” United States v.
Webster, 162 F.3d 308, 333 (5th Cir. 1998). “First, [s]he needs to
make out a prima facie showing that the has been singled out for
prosecution but other similarly situated of a different race were
not prosecuted.” Id. at 333–34. “Second, [s]he must demonstrate
51Johnson’s Addendum, Docket Entry No. 1131, pp. 2–3.
52Id.
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that the discriminatory selection of him for prosecution is
invidious or in bad faith, in that it rests on such impermissible
considerations as race, religion, or the desire to prevent his
exercise of his constitutional rights.” Id. at 334.
Although Johnson argues that other doctors who had engaged in
similar actions were not prosecuted, she fails to show that the
failure to prosecute those doctors was because of race, religion,
or some other protected classification. In his Affidavit Attorney
Cogdell explained why he did not raise a selective prosecution
claim:
. . . This selective prosecution argument fails for
several reasons. First, not every person involved in a
criminal enterprise must be charged. The Government is
under no obligation to charge anyone and everyone
involved. Second, a defendant must show that similarly
situated individuals of a different race, religion or
other protected classes were not prosecuted. Johnson
does not even attempt to even allege such because it
cannot be done. Lastly, in this context at least,
Johnson must allege and prove that the prosecution was
motivated by an intent to discriminate based upon a
protected class. Again, Johnson doesn’t even attempt to
articulate such because it is impossible to do so in this
context.53
For the reasons explained above, the court finds that Johnson
has failed to establish either prong of the Strickland test for
this claim.54
53Cogdell Affidavit, Docket Entry No. 1155, p. 6 (sealed).
54To the extent that Johnson is attempting to assert a
standalone selective prosecution claim, it fails for the same
reasons explained above.
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iii. Failure of Schaffer, Kennedy, and Cogdell to
Move to Sever
Petitioners’ original § 2255 Motions assert that their counsel
were ineffective by failing to move to sever counts and defendants
from the indictment.55
“[T]he law of this circuit [holds] that when severance is not
required as a matter of law, counsel’s failure to seek such relief
does not constitute incompetency.” Murray v. United States, Civil
Action No. 4:13-0032, 2013 WL 12210802, at *6 (S.D. Tex. Sept. 3,
2013) (citing United States v. Garza, 563 F.2d 1164, 1166 (5th Cir.
1977)). “[W]hen severance is not required as a matter of law, the
failure to seek such relief can amount to nothing more than a
‘mistaken tactical decision.’” Id. (quoting Garza, 563 F.2d at
1166). In support of the decision to not sever, Attorney Schaffer
explained that
We did not file for severance because there was no legal
basis to do so. . . . [I]f [Cruise] is talking about a
severance from co-defendants, there was no plausible
argument that could have been raised to justify such a
severance. The weight of the evidence was probably
stronger against Mr. Cruise than any of the other
defendants except for his wife. Additionally, at no time
did Mr. Cruise suggest that he was interested in
obtaining any type of severance and I do not believe that
a severance from other defendants would have given him
any type of advantage.56
55Cruise’s § 2255 Supplement, Docket Entry No. 1191, p. 8;
Cruise’s § 2255 Motion, Docket Entry No. 1102, p. 5; Johnson’s
§ 2255 Motion, Docket Entry No. 1115, pp. 5, 27–31.
56Schaffer Affidavit, Docket Entry No. 1142, p. 3 (sealed).
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Attorney Cogdell’s Affidavit explained that
Simply stated, there was no viable basis to file a
severance motion on behalf of Ms. Johnson. Not only was
there no legal basis for so doing, but there was also
likewise no tactical basis.57
Based on the aforementioned, this court finds counsel’s
decision not to sever was reasonable. For the reasons explained
above, the court finds that Petitioners have failed to establish
either prong of the Strickland test for this claim.
iv. Failure of Schaffer, Kennedy, and Cogdell to
Pursue and Assert Certain Defenses
Petitioners’ original § 2255 Motions assert that their counsel
were ineffective by failing to assert certain defenses.
“[S]trategic choices about which lines of defense to pursue are
owed deference commensurate with the reasonableness of the
professional judgments on which they are based.” Strickland, 104
S. Ct. at 2061. Accordingly, “to show prejudice in regard to a
claim that the attorney failed to raise a certain defense, the
petitioner must show that the defense likely would have been
successful at trial.” Mangum v. Hargett, 67 F.3d 80, 84 (5th Cir.
1995).
Petitioners first argue that their counsel were ineffective by
failing to assert an advice-of-counsel defense.58 It is clear from
57Cogdell Affidavit, Docket Entry No. 1155, p. 2 (sealed).
58Cruise’s § 2255 Motion, Docket Entry No. 1102, p. 5; Cruise’s
§ 2255 Supplement, Docket Entry No. 1191, pp. 4–6; Johnson’s § 2255
Motion, Docket Entry No. 1115, p. 5.
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the record that counsel made a strategic choice not to assert this
defense. Attorney Schaffer has stated that after his co-counsel
spoke to Ivan Wood, who was the attorney Cruise retained when he was
setting up his business, it became apparent that “waiving the
attorney client privilege [between Cruise and Wood] . . . could be
devastating to [Cruise’s] defense.”59 Attorney Schaffer also states
that he explained this to Cruise, who ultimately “agreed that it was
best not to use Mr. Wood as a witness.”60
Petitioners argue that under the factors in United States v.
Rosen, 582 F.2d 1032 (5th Cir. 1978), they were engaged in good
faith practices and that their counsel were ineffective for failing
to pursue evidence to establish that defense.61 The record reflects
that counsel carefully reviewed the factual record and diligently
prepared for trial62 and that the decision not to pursue a good-
faith defense under Rosen was a “conscious and informed decision on
trial tactics and strategy” that “cannot be the basis for
59Schaffer Affidavit, Docket Entry No. 1142, pp. 7, 13 (sealed).
60Id. at 8, 13.
61Cruise’s § 2255 Supplement, Docket Entry No. 1191, pp. 6–8;
Johnson’s § 2255 Motion, Docket Entry No. 1115, pp 30–31.
62Schaffer Affidavit, Docket Entry No. 1142, pp. 4–5 (“We had
more than a dozen trial strategy meetings . . . most of the trial
team was present and in almost every meeting . . . most of these
meetings . . . would usually last for hours.”) (sealed); Kennedy
Affidavit, Docket Entry No. 1143, p. 4 (“We had every reason to
believe we were going to trial, and we were actively preparing for
trial . . . .”) (sealed).
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constitutionally ineffective assistance of counsel.”63 Green v.
Johnson, 116 F.3d 1116, 1122 (5th Cir. 1997).
Johnson also argues that her counsel was ineffective in failing
to assert that she lacked the criminal intent necessary for the
criminal violation.64 This claim is meritless because there was
overwhelming evidence of Johnson’s criminal intent. Attorney
Cogdell’s Affidavit summarized the evidence of Johnson’s intent:
Both the Indictment and the underlying proof to support
it were rife with evidence [of] criminal conduct which
resulted in harm to a myriad of victims through
fraudulent and unnecessary prescriptions, billings for
services not provided, continued billings for
prescriptions and services after the patient informed
them that the prescriptions were unnecessary, etc.
. . . Unfortunately for Ms. Johnson, the proof required
to demonstrate the criminal intent required by law was
manifest and obvious. Johnson (a non-physician) was even
personally recorded on calls with care providers wherein
she insisted upon them providing unnecessary prescrip-
tions that simply maximized the profit to her and her
63The Rosen factors have never been applied in a case involving
conspiracy to commit health care and wire fraud. The Fifth Circuit
has only applied the Rosen factors in controlled substance cases.
See, e.g., Rosen, 582 F.2d at 1033–36 (involving a violation of 21
U.S.C. § 841(a)(1)); United States v. Lamartiniere, 100 F.4th 625,
652 (5th Cir. 2024) (same). The factors are used to determine
whether the defendant-physician was intentionally engaging in drug
pushing or whether the defendant-physician was merely performing
his job as a physician. Rosen, 582 F.2d at 1033–36 (“A physician
is restricted to dispensing or prescribing drugs in the bona fide
treatment of a patient’s disease, including a dispensing of a
moderate amount of drugs to a known addict in a good-faith attempt
to treat the addiction or to relieve conditions or suffering
incident to addiction. However, under the guise of treatment a
physician cannot sell drugs to a dealer nor distribute drugs
intended to cater to cravings of an addict. Congress did not
intend for doctors to become drug ‘pushers’.”).
64Johnson’s Addendum, Docket Entry No. 1131, pp. 3–4.
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husband. Bribes and kickbacks for providing those
unnecessary prescriptions were paid through the criminal
organization on behalf of Johnson and her husband. All
the above conduct was engaged in for one primary purpose:
to maximize financial gain to Johnson and her husband.
For her to content that this was simply “a civil
regulatory matter” is breathtaking in its audacity.65
For the reasons explained above, the court finds that
Petitioners have failed to establish either prong of the Strickland
test for these claims.
v. Failure of Schaffer, Kennedy, and Cogdell to
Disclose Joint Representation
Petitioners’ original § 2255 Motions assert that Cruise’s
counsel were ineffective because they owned a practice with
codefendant Kenny Ozoude’s counsel, Attorney Nathan Mays, and failed
to disclose to the court that they were jointly representing
codefendants in the case.66
In claims of ineffective assistance based on a conflict of
interest a petitioner must show that there (1) was “an actual
conflict of interest” that (2) “adversely affected his lawyer’s
performance.” Cuyler v. Sullivan, 100 S. Ct. 1708, 1718 (1980).
“Joint representation does not necessarily create a conflict of
interest.” United States v. Rico, 51 F.3d 495, 508 (5th Cir. 1995).
But “‘[w]here an attorney obtains confidential information helpful
to one defendant but harmful to another, a conflict of interest may
65Cogdell Affidavit, Docket Entry No. 1155, p. 7 (sealed).
66Cruise’s § 2255 Motion, Docket Entry No. 1102, pp. 5–6;
Cruise’s § 2255 Supplement, Docket Entry No. 1191, pp. 9–12;
Johnson’s § 2255 Motion, Docket Entry No. 1115, pp. 5–6, 31–34.
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exist.’” United States v. Placente, 81 F.3d 555, 559 (5th Cir.
1996) (quoting Parker v. Parratt, 662 F.2d 479, 484 (8th Cir.
1981)).
Petitioners have failed to establish that their counsels’ firm
jointly represented codefendant Ozoude and Cruise. Although
Attorneys Schaffer and Kennedy shared a common office space with
Attorney Mays, they were not business partners. Attorneys Schaffer
and Kennedy represented Cruise while Attorney Mays separately
represented Ozoude. Attorney Schaffer’s Affidavit stated the
following about the alleged conflict of interest and joint
representation:
There was never a conflict of interest between Nathan
Mays and me. Nathan Mays is a local criminal defense
lawyer who started officing with me in April 2019. We
were never in a partnership and although we used the name
of Schaffer, Carter, Kennedy, and Mays; we made clear
that we were not a partnership. . . . We never shared
income and Mr. Mays paid rent on a month-to-month basis.
Regarding the Cruise case, I cannot recall even one
meeting wherein Mr. Mays and I sat down and shared
information. We both intended to go to trial and
prepared separately, but we never sat down to compare
notes; mostly because I typically do not share
information and I did not trust that Mr. Mays’ client
would not ultimately cooperate against Mr. Cruise. . . .
. . .
At no time did Mr. Mays and I share any sort of joint
defense strategy or share in responsibilities for trial.
We did not have one meaningful discussion with Mr. Mays
about the case because we always thought it was possible
that he would cooperate with the government. At no time
did Mr. Mays participate in a joint strategy meeting.67
67Schaffer Affidavit, Docket Entry No. 1142, pp. 2–3 (sealed).
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The court concludes that Attorneys Schaffer, Kennedy, and Mays
did not jointly represent Cruise and Ozoude.
Moreover, even if an actual conflict of interest had existed,
Petitioners have failed to show how the conflict “adversely affected
his lawyer’s performance.” Cuyler, 100 S. Ct. at 1718. Petitioners
merely assert without evidence that their counsel pressured them
into taking a plea deal so that they could “avoid inevitable Rule
44 disclosures at [the] pending trial”: they offer no explanation
about how or when they were “pressured [by their counsel] into
accepting a plea agreement.”68 Despite Petitioners’ conclusory
allegations, the record establishes that Petitioners voluntarily
entered their guilty pleas.69
For the reasons explained above, the court finds that
Petitioners have failed to establish either prong of the Strickland
test for this claim.
68Cruise’s § 2255 Motion, Docket Entry No. 1102, p. 5. Cruise
includes Johnson’s counsel in this allegation.
69Schaffer Affidavit, Docket Entry No. 1142, p. 6 (“At no time
did I pressure Mr. Cruise to plead guilty, and we were ready for
trial at the time he decided to plead.”) (sealed); Cogdell
Affidavit, Docket Entry No. 1155, pp. 3-4 (“Not only did
Ms. Johnson not only fully appreciate the reality of her situation
before she entered her guilty plea, she also voluntarily
participated in at least two debriefings that lasted many hours
with the government after her plea of guilt.”) (sealed);
Re-Arraignment Transcript, Docket Entry No. 662, p. 28 lines 13-18
(Cruise), p. 30 lines 16-20 (Johnson) (“It is the finding of the
Court that [the defendant] [Lashonia Johnson] is fully competent
and capable of entering an informed plea and that [the defendant’s]
[her] plea of guilty is a knowing and voluntary plea supported by
an independent basis in fact establishing each of the essential
elements of the offense.”). Any independent claim that their pleas
were involuntary fail for the same reasons explained in this
footnote.
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b. Failure of Schaffer, Kennedy, and Cogdell to Object
to An Invalid Plea
Petitioners argue that their counsel were ineffective for
pressuring them into pleading guilty.70
As discussed above, the record clearly establishes that
Petitioners’ pleas were knowing and voluntary. During their plea
hearing the court ensured that Petitioners understood the
consequences of pleading guilty, warned Petitioners about the
maximum sentence they faced, and reviewed specific provisions of the
plea agreement with Petitioners.71 Based on Petitioners’ responses
to the court’s questions, the court found the Petitioners were
entering their guilty pleas knowingly, freely, and voluntarily.72
This finding was affirmed in the court’s order denying Petitioners’
motions to withdraw their guilty pleas and by the Fifth Circuit.73
There is no evidence that supports Petitioners’ claims that they
were pressured into pleading guilty.
Johnson argues that her counsel was also ineffective in
failing to object to her plea agreement and plea because (1) the
70Cruise’s § 2255 Motion, Docket Entry No. 1102, p. 5;
Johnson’s § 2255 Motion, Docket Entry No. 1115, p. 5.
71Rearraignment Transcript, Docket Entry No. 662, p. 13 line 22
thru p. 14 line 24; p. 18 line 23 thru p. 24 line 10.
72Id. at 28 lines 5-7, 13–20 (Cruise); p. 30 lines 16–22
(Johnson).
73Memorandum Opinion and Order (Cruise), Docket Entry No. 692,
pp. 4–6; Memorandum Opinion and Order (Johnson), Docket Entry
No. 693, pp. 4–6; Opinion of the Fifth Circuit Court of Appeals
(Cruise), Docket Entry No. 1047, p. 1; Opinion of the Fifth Circuit
Court of Appeals (Johnson), Docket Entry No. 1058, p. 1.
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factual basis of her plea agreement provided facts that supported
a conviction for violating 18 U.S.C. § 371 as opposed to 18 U.S.C.
§ 1349 and (2) Johnson did not plead to the facts or conduct
alleged in the indictment during her re-arraignment.74
Johnson’s additional claims are meritless. Johnson’s plea
agreement contained a factual basis that supported the offense
charged.75 Additionally, the testimony from the plea hearing
clearly established that Johnson read the factual basis contained
in the plea agreement and pled guilty to violating 18 U.S.C. § 1349
based on those facts:
THE COURT: I understand that you also wish to plead
guilty to Count 2 of the indictment --
DEFENDANT JOHNSON: Yes, Your Honor.
THE COURT: -- which charges you with conspiracy to
commit wire fraud in violation of 18, United States Code,
Section 1349; is that correct?
DEFENDANT JOHNSON: Yes, sir.
. . .
THE COURT: Before I can accept your guilty pleas, I must
ask you a number of questions. . . .
74Johnson’s Addendum, Docket Entry No. 1131, p. 1; Johnson’s
Motion to Amend, Docket Entry No. 1172, pp. 1–2. Johnson also
argues that the plea agreement she agreed to and signed in court
was different than the plea agreement she reviewed with her
attorney. There is no evidence to support this claim. See Cogdell
Affidavit, Docket Entry No. 1155, p. 5 (sealed) (stating that “the
elements of the crime and the factual basis [in the signed plea
agreement] were essentially identical as the prior ‘version’ that
was previously signed in my office and was certainly not to the
detriment of Johnson in any way”).
75Plea Agreement, Exhibit C to Government’s Response, Docket
Entry No. 1203-3, pp. 10–12.
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It is very important that you listen carefully to all my
questions and that you answer all of my questions
truthfully and completely for several reasons.
First, since you are now under oath, if you give an
untrue answer to a question, you could be charged with a
separate crime of perjury. . . .
Ms. Johnson, do you understand that?
DEFENDANT JOHNSON: I do, sir.
. . .
THE COURT: Also before I can accept your guilty plea, I
must make a number of findings. My findings are based on
your answers to my questions. In order for my findings
to be correct, it is therefore necessary that all of your
answers to my questions be truthful and complete.
. . .
THE COURT: Okay. How many times have you discussed this
case with Mr. Cogdell?
DEFENDANT JOHNSON: Several times.
THE COURT: More than ten?
DEFENDANT JOHNSON: Yes, sir.
THE COURT: Has he discussed with you the charges against
you and what the government would have to prove to
establish your guilt?
DEFENDANT JOHNSON: Yes, sir.
THE COURT: Has he reviewed with you the evidence the
government has against you?
DEFENDANT JOHNSON: Yes, sir.
THE COURT: Has he discussed with you how the federal
advisory sentencing guidelines might apply in your case?
DEFENDANT JOHNSON: Yes, sir.
THE COURT: Has he answered all of your questions?
DEFENDANT JOHNSON: Yes, sir.
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THE COURT: Are you fully satisfied with the advice and
counsel that Mr. Cogdell has provided you?
DEFENDANT JOHNSON: Yes, sir.
. . .
THE COURT: . . . Ms. Johnson, would you please turn in
your plea agreement to Page 8.
Paragraph 16 says: “Defendant has pleaded guilty
because she is guilty of the charge contained in
Count 2 of the indictment. If this case were to
proceed to trial, the United States could prove
each element of the offense beyond a reasonable
doubt. The following facts, among others, would be
offered to establish the defendant’s guilt.”
And on Pages 8, 9 and 10, the government sets out
the facts it says it could prove if the case were
tried. Have you carefully read Pages 8, 9 and 10
of your plea agreement?
DEFENDANT JOHNSON: Yes, Your Honor.
THE COURT: Are all the facts stated there true?
DEFENDANT JOHNSON: Yes, sir.
THE COURT: Did you do everything described on those
three pages of the plea agreement?
DEFENDANT JOHNSON: Yes, sir.
THE COURT: How do you plead to the offense charged
against you in Count 2? Guilty or not guilty?
DEFENDANT JOHNSON: Guilty.76
Attorney Cogdell’s Affidavit states that
. . . Johnson (somehow) contends that “she never admitted
to guilt to the specific conduct alleged in the
indictment” when she did exactly that through the
execution of the Plea Agreement. Ms. Johnson verbally
76Rearraignment Transcript, Docket Entry No. 662, p. 4
lines 1–8; p. 5 lines 1–6, 9-10, and 14-17; p. 10 lines 6–25; p. 29
lines 3–23.
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agreed to the accuracy of the Factual Basis after it was
read by the Government and this Court asked Ms. Johnson
if the factual basis was accurate. In so doing, Johnson
did in Court exactly what she contends in her pleading
that she did not do . . .77
For the reasons explained above, the court finds that Johnson
has failed to establish either prong of the Strickland test for
this claim.
c. Failure of Schaffer, Kennedy, and Cogdell to Move
to Withdraw Pleas
Petitioners argue that their counsel was ineffective in
failing to move to withdraw their guilty pleas after becoming aware
that the Government “withheld exculpatory information or avoided
disclosures that undermined the factual basis of their original
indictment.”78 This claim has no merit because the record clearly
establishes counsel were not ineffective in failing to move to
withdraw Petitioners’ pleas. Attorney Schaffer’s Affidavit, which
Attorney Cogdell adopted in its entirety,79 states that
I never attempted to withdraw Mr. Cruise’s guilty plea
because I did not know that he wanted to withdraw
it. . . . I specifically recall Mr. Cruise being
enthusiastic about earning a reduction and not once did
he ask me to help him withdraw his plea.
The first time that I learned that Mr. Cruise wanted to
withdraw his plea was after he hired new counsel and they
filed a motion to withdraw the plea. . . .
77Cogdell Affidavit, Docket Entry No. 1155, p. 5 (sealed).
78Johnson’s § 2255 Motion, Docket Entry No. 1115, p. 35;
Cruise’s § 2255 Supplement, Docket Entry No. 1191, pp. 12–14.
79Cogdell Affidavit, Docket Entry No. 1155, p. 2 (sealed).
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In addition, at no time during the debriefing sessions
did Ms. Wagner inform counsel that she failed to provide
exculpatory evidence. To my knowledge, we received all
the evidence from the government, and we were never made
aware that any exculpatory evidence was withheld.80
Moreover, Petitioners “terminated the attorney-client
relationship with” Attorneys Schaffer, Kennedy, and Cogdell when
Petitioners “[retained] new counsel to represent [them] in moving
to withdraw [their] guilty plea[s].” Petitioners therefore “cannot
show prejudice.” Strother v. United States, Civil Action No. 4:21-
CV-564, 2024 WL 3927240, at *8 (E.D. Tex. Aug. 22, 2024). For the
reasons explained above, the court finds that Petitioners have
failed to establish either prong of the Strickland test for this
claim.
d. Failure of Armstrong, Darley, and Clouthier to
Present Evidence of a Brady Violation
Petitioners claim that when they began cooperating with the
Government after they pled guilty Cruise recorded the meetings.81
Petitioners contend that these recordings establish that the
Government deliberately failed to provide defense counsel with
exculpatory provider agreements.82 Petitioners argue that their
counsel were ineffective in failing to present these recordings in
their motions to withdraw their guilty pleas.83
80Schaffer Affidavit, Docket Entry No. 1142, p. 8 (sealed).
81Johnson’s § 2255 Motion, Docket Entry No. 1115, pp. 36, 38-39.
82Id. at 38-39.
83Id. at 35; Cruise’s § 2255 Supplement, Docket Entry No. 1191,
p. 14.
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Counsel were not ineffective by failing to present the secret
recordings in Petitioners’ motions to withdraw their guilty pleas.
The record clearly establishes that counsel did not have the secret
recordings at the time they moved to withdraw Petitioners’ guilty
pleas. Attorney Armstrong submitted an Affidavit stating:
. . . Cruise received the draft of the motion [to
withdraw], was aware of its contents and had seen the
conversations regarding strategy, and he did not suggest
or instruct counsel to add or remove any language or
arguments; more specifically, to include the fact that he
had secretly recorded his debrief without the knowledge
or consent of his attorney’s or the representatives of
the United States, as he now contends should have been
done.
. . .
. . . [C]ounsel was not even in possession of the
referenced “secret recordings” in advance of the hearing,
so they could not have been offered even if the court
deemed them relevant and admissible for some unknown
reason.84
Attorney Darley submitted an affidavit stating:
. . . These recordings were emailed the early morning
hours of April 4, 2023, barely 24 hours prior to
Johnson’s hearing to Withdraw her Guilty Plea, held
before Hon. Judge Lake on April 5, 2023.
. . .
Johnson approved the Motion to Withdraw the Guilty Plea
prior to it being filed with no reference to
recordings. . . . [I]f Johnson believed these recordings
to be the “silver bullet” that she characterizes them to
be (they are not), she could have insisted they be
included in the Motion to Withdraw her plea, or
sentencing memorandum filings, or she could have
referenced the recordings in either hearing, had she
chosen to do so.85
84Armstrong Affidavit, Docket Entry No. 1144, pp. 7, 9
(sealed).
85Darley Affidavit, Docket Entry No. 1152, pp. 2–3 (sealed).
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The record establishes that the Government did not violate
Brady. The Government had no obligation to turn over exculpatory
evidence to defense before Petitioners pled guilty because “Brady
focuses on the integrity of trials and does not reach pre-trial
guilty pleas.” Mansfield v. Williamson County, 30 F.4th 276, 280
(5th Cir. 2022). Moreover, Petitioners claim that the Government
failed to turn over “exculpatory provider agreements.”86 However,
that claim is patently false: the Government turned over those
documents to Petitioners in the production letter it sent on
July 10, 2018.87
For the reasons explained above, the court concludes that
Petitioners have failed to establish either prong of the Strickland
test for this claim.88
e. Failure of Armstrong and Darley to Use the Secret
Recordings to Impeach the Government
Petitioners argue that counsel were ineffective for failing to
use the secret recordings to impeach the United States Attorney for
86Johnson’s § 2255 Motion, Docket Entry No. 1115, p. 38 ¶ 14.
87United States Attorney’s Email to Petitioners, Exhibit B to
Government’s Response, Docket Entry No. 1203-2, pp. 2–3 (sealed).
88Petitioners also argue that their counsel were ineffective
for failing to present the secret recording on appeal. Johnson’s
§ 2255 Motion, Docket Entry No. 1115, p. 39. It is clear from the
record that counsel reviewed the record and only appealed “the
issues that had arguable merit.” Armstrong Affidavit, Docket Entry
No. 1144, p. 11 (sealed); Clouthier Affidavit, Docket Entry
No. 1137, p. 1 ¶ 4 (sealed) (stating that the recordings did not
pertain to Johnson’s case). For the same reasons discussed above,
counsel were not ineffective for failing to present the secret
recordings on appeal.
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making inconsistent statements at the hearing on Petitioners’
motions to withdraw their guilty pleas.89
To impeach with prior inconsistent statements, there must be
a witness to impeach. Fed. R. Evid. 613(a) (“When examining a
witness about the witness’s prior statement, a party need not show
it or disclose its contents to the witness.”). Because the
United States Attorney was not a witness for the defense or the
Government, Petitioners’ counsel could not use the secret recordings
to impeach her.
In his affidavit, Attorney Armstrong explained why he did not
use the secret recordings:
. . . [T]here was no testimony or witness offered by the
government regarding the debriefs other than [the] cross
examination of Cruise. The purported value of any secret
recordings of his debriefs, notwithstanding admissibility
and ethical concerns, would only have been to impeach a
contrary witness if such a witness had been called and
testified inconsistently. As such, Cruise’s belief that
arguments of counsel are statements that can be impeached
is misplaced.90
Also, Attorney Darley explained why he did not use the secret
recordings:
. . . [T]he recordings — even assuming they are relevant
— and with any value at all, would have likely been used
only to impeach witnesses adverse to Johnson. Neither
the change of plea hearing or sentencing hearing
consisted of adverse witnesses being called, rather there
was testimony of the defendants, family members, and
89Johnson’s § 2255 Motion, Docket Entry No. 1115, pp. 43–45
(“Counsels Armstrong and Darley were aware of the recordings, and
failed to bring them to the court’s attention as evidence of the
government’s misconduct.”); Cruise’s § 2255 Supplement, Docket
Entry No. 1191, pp. 13–14.
90Armstrong Affidavit, Docket Entry No. 1144, pp. 8–9 (sealed).
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arguments of Counsel for the Government and all
parties.91
For the reasons explained above, the court finds that
Petitioners have failed to establish either prong of the Strickland
test for this claim.
f. Failure of Darley to Object to the Presentence
Investigation Report
Johnson argues that her counsel was ineffective in failing to
review the final presentence investigation report with her.92 The
record establishes that Johnson read and discussed the presentence
report with her attorney before being sentenced:
THE COURT: Have you read the presentence investigation
report before today?
THE DEFENDANT: Yes, sir.
THE COURT: Have you discussed it with your lawyer?
THE DEFENDANT: Yes, sir.93
After the court ruled on the objections to the Presentence
Investigation Report filed by Johnson’s lawyer, the court again
addressed Johnson:
THE COURT: Do you have any additional objections of your
own to the Presentence Investigation Report or the
proposed conditions?
DEFENDANT JOHNSON: No, sir.94
91Darley Affidavit, Docket Entry No. 1152, p. 3 (sealed).
92Johnson’s Addendum, Docket Entry No. 1131, pp. 1–2.
93Transcript of Sentencing Proceedings Heard Before the
Honorable Sim Lake, United States District Judge, Docket Entry
No. 851, p. 2 lines 15–23.
94Id. at 3 lines 11-13.
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Johnson additionally argues that her counsel was ineffective
for failing to object to various facts contained in the final
presentence investigation report.95
Johnson first argues that the final presentence investigation
report falsely states that Dr. Jackson was paid an illegal
kickback.96 She argues that because Dr. Jackson was paid each day
that he signed prescriptions, he was not receiving illegal
kickbacks.97 However, “Johnson’s understanding of what constitutes
a ‘kickback’ is inaccurate.”98 “The record reflects that
Dr. Jackson was paid to sign prescriptions for compounded
drugs–which is an illegal payment for referrals.”99 The payment
system was set up so that “the more days [Dr. Jackson] spent acting
in furtherance of the conspiracy, the more money he made.”100
Johnson also argues that the final presentence investigation
report misrepresents that $91 million was paid from the government
95Johnson’s Addendum, Docket Entry No. 1131, pp. 1–2.
96Id. at 2.
97Id.
98Government’s Response, Docket Entry No. 1203, p. 34 (sealed).
99Id.; Presentence Investigation Report, Docket Entry No. 686,
pp. 20–22 ¶¶ 49–51 (sealed); Plea Agreement, Docket Entry No. 455,
pp. 9–10 (“Defendant and her co-conspirators sent or caused to be
sent claimants recruited by IFWAA to Dr. Jay Bender, Dr. James
Jackson, and others, who were paid illegal remuneration in exchange
for prescribing these compounded drugs to claimants, regardless of
medical need or condition.”).
100Government’s Response, Docket Entry No. 1203, p. 35
(sealed).
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to IFWAA. However, the plea agreement and final presentence
investigation report never stated that $91 million was paid from
the government to IFWAA — the documents reflect that Johnson and
her co-conspirators caused $91 million in intended loss.101 Johnson
agreed to this loss amount in her plea.102
For the reasons explained above, the court finds that Johnson
has failed to establish either prong of the Strickland test for
these claims.
g. Failure of Clouthier to Adequately Represent
Johnson on Appeal
Johnson claims that her counsel was ineffective on appeal in
failing to (1) use the secret recordings, (2) raise a challenge to
Johnson’s plea, (3) rebut the loss calculation, (4) raise the rule
44 conflicts of her previous counsel, and (5) allow Johnson to
review the appellate brief before filing it.103
“[A]ppellate counsel need not ‘raise every nonfrivolous ground
of appeal available’ in order to be effective.” Higgins v. Cain,
720 F.3d 255, 265 (5th Cir. 2013) (quoting Green v. Johnson, 160
F.3d 1029, 1043 (5th Cir. 1998)). “Instead, appellate counsel’s
failure to raise an argument on direct appeal will be considered
ineffective only when counsel fails to perform ‘in a reasonably
101Presentence Investigation Report, Docket Entry No. 686,
p. 29 ¶ 64 (sealed).
102Plea Agreement, Docket Entry No. 455, p. 7.
103Johnson’s Addendum, Docket Entry No. 1131, pp. 4–5.
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effective manner.’” Id. (quoting Green, 160 F.3d at 1043). “This
standard requires that appellate counsel ‘research relevant facts
and law, or make an informed decision that certain avenues will not
prove faithful.’” Id. (quoting United States v. Phillips, 210 F.3d
345, 348 (5th Cir. 2000)). Therefore, “to determine whether
appellate counsel’s performance was deficient, [the court] must
consider whether the . . . arguments are ‘sufficiently meritorious
such that [Johnson’s] counsel should have raised [them] on
appeal.’” Id. (quoting Phillips, 210 F.3d at 348).
As discussed at length above, Johnson’s claims regarding the
secret recordings, her plea, and alleged Rule 44 conflicts, all
lack merit.104 Counsel was therefore not ineffective in failing to
raise these issues on appeal.
Although Attorney Clouthier admits that she did not allow
Johnson to review the appellate brief before it was filed,
Attorney Clouthier traveled to meet with Johnson and discussed
potential appeal points with her.105
Finally, although Johnson argues that Attorney Cloutheir
failed to rebut the loss calculation, the record establishes that
Attorney Clothier raised the loss calculation issue on appeal.106
104Attorney Clouthier explained in an Affidavit that she raised
only meritorious claims on appeal. Clouthier Affidavit, Docket
Entry No. 1137 (sealed).
105Clouthier Affidavit, Docket Entry No. 1137 (sealed).
106Opinion of the Fifth Circuit Court of Appeals, Docket Entry
(continued...)
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If Johnson is attempting to argue that Attorney Clouthier should
have used a different argument on appeal to rebut the loss
calcuation, that argument is procedurally barred. United States v.
Alanis, 88 F. App’x 15, 22 (5th Cir. Feb. 10, 2004).
For the reasons explained above, the court finds that Johnson
has failed to establish either prong of the Strickland test for
these claims.
2. Prosecutorial Misconduct
In their original § 2255 Motions Petitioners allege that the
Government (1) violated Brady and (2) made false statements about
Petitioners at sentencing.107 Johnson’s addendum additionally
asserts that the Government (1) violated the plea agreement by
falsifying facts in the plea agreement and the presentence
investigation report, (2) selectively prosecuted Petitioners, and
(3) made false statements at the hearing on Petitioners’ motions to
withdraw their guilty pleas.108
106(...continued)
No. 1058, pp. 1-2.
107Johnson’s § 2255 Motion, Docket Entry No. 1115, pp. 39,
43–48.
108Johnson’s Addendum, Docket Entry No. 1131, pp. 1–5. The
court will not address Johnson claims that the Government breached
the plea agreement or her claim that she was selectively
prosecuted. The substance of these claims is addressed above in
rejecting her claim that her counsel were ineffective for failing
to object to the final presentence report and her claim that her
counsel were ineffective for failing to raise a selective
prosecution claim.
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A prosecutorial misconduct claim “may not be raised for the
first time on collateral review without a showing of cause for
failing to raise the issue on direct appeal and actual prejudice
resulting from the alleged error.” United States v. Galindo,
Nos. 5:96-CR-0061(01), 5:99-CR-221, 2002 WL 31166824, at *3 (N.D.
Tex. Sept. 18, 2002) (citing United States v. Shaid, 937 F.2d 228,
231–32 (5th Cir. 1991)). “To prove ‘cause,’ a petitioner must show
that an external obstacle prevented him from raising his claim
either at trial or on direct appeal.” Craft v. United States,
No. CR H-04-442-13, 2008 WL 11424149, at *2 (S.D. Tex. June 18,
2008). “To prove ‘actual prejudice,’ the petitioner must show he
has suffered an actual and substantial disadvantage as a result of
the alleged error.” Id.
Petitioners’ prosecutorial misconduct claims were procedurally
defaulted. Because Petitioners failed to raise their prosecutorial
misconduct claims in their direct appeal and have not shown
“adequate cause for failing to” do so, Petitioners’ prosecutorial
misconduct claims cannot be “presented for the first time in a
§ 2255 motion.” Galindo, 2002 WL 31166824, at *3.
However, even if Petitioners’ claims were not procedurally
defaulted, their claims fail on the merits.
a. Brady Violation
Petitioners argue that the Government violated Brady by
failing to (1) turn over “exculpatory provider agreements” to
Petitioners and (2) adequately research the defenses that allegedly
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applied to Petitioners.109
“A Brady violation occurs when the government fails to
disclose evidence materially favorable to the accused.” Youngblood
v. West Virginia, 126 S. Ct. 2188, 2190 (2006). “Such evidence is
material if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different.” Id. (quoting Strickler v.
Greene, 119 S. Ct. 1936, 1952 (1999) (internal quotation marks
omitted)).
Petitioners have failed to establish that the Government
violated Brady. The claim that the Government failed to turn over
“exculpatory provider agreements” to Petitioners is false because
the Government made those documents available to Petitioners in the
production letter it sent on July 10, 2018.110 Moreover, the claim
that the Government violated Brady by failing to adequately
research the defenses that allegedly applied to Petitioners is
without merit. Brady only requires the Government to “disclose
evidence materially favorable to the accused,” it does not require
the Government to adequately research defenses that may apply in
the case. Id.
b. False Statements by the Government
109Johnson’s § 2255 Motion, Docket Entry No. 1115, pp. 38–39.
110United States Attorney’s Email to Petitioners, Exhibit B to
Government’s Response, Docket Entry No. 1203-2, pp. 1–2 (sealed).
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Petitioners argue that the Government’s statements at
sentencing violated Napue v. Illinois, 79 S. Ct. 1173 (1959),
because the statements were false.111 Petitioners point to the
following statements: (1) “Obviously this is a large and serious
fraud.”; (2) “[Cruise] was involved in another entity, Team Work
Ready, that did the exact same thing.”; and (3) “[Cruise] admitted
his role, and he admitted what he did.”112
Courts apply a two-step analysis to charges of prosecutorial
misconduct. United States v. Duffaut, 314 F.3d 203, 210 (5th Cir.
2002). First, courts decide “whether the prosecutor’s comments
were improper” and “if the comments were improper,” then courts
decide “whether they prejudiced the defendant’s substantive
rights.” Id.
The statements made by the Government at sentencing were
proper and true. First, the Government’s statement that this case
involved large and serious fraud was true: “[t]he intended loss of
the offense was approximately $91.7 million.”113 Second, the
Government’s statement that Cruise was involved in Team Work Ready
was true. Cruise was the Chief Operating Officer at Team Work
Ready (“TWR”) when it was investigated for submitting false and
111Cruise’s § 2255 Supplement, Docket Entry No. 1191, p. 13;
Johnson’s § 2255 Motion, Docket Entry No. 1115, pp. 46–48.
112Johnson’s § 2255 Motion, Docket Entry No. 1115, pp. 46–47.
113Presentence Investigation Report (Cruise), Docket Entry
No. 659, p. 31 ¶ 78 (sealed).
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fraudulent claims to the Federal Employee’s Compensation Act.114
The investigation found that “[t]he TWR staff, including John
Cruise, were directly aware of, and personally participated in the
ongoing scheme.”115 Finally, the Government’s statement that Cruise
admitted to his role in the fraud was true. The record clearly
establishes that Cruise plead guilty to the offense and was
cooperating with the Government before he attempted to withdraw his
guilty plea.116 His cooperation included providing the Government
with an explanation of how their scheme worked.117
Johnson additionally argues that the Government violated Napue
when it referred to an unsigned prescription as signed during the
hearing on her motion to withdraw her guilty plea.118 Although the
Government did refer to an unsigned prescription as signed, the
mistake was immediately corrected.119 This misstatement therefore
did not prejudice Petitioners.
For the reasons explained above, the court concludes that
114Id. at 10 ¶ 24.
115Id.
116Johnson’s § 2255 Motion, Docket Entry No. 1115, pp. 36–38.
117Government’s Response, Docket Entry No. 1203, p. 4 (sealed).
The Government brought up his cooperation “to provide the Court
with mitigating evidence . . . even though no Rule 5K.1.1 motion
for downward departure had been filed.” Id. at 26 (sealed).
118Johnson’s Addendum, Docket Entry No. 1131, p. 4.
119Motion Hearing Before the Honorable Sim Lake, United States
District Judge, April 5, 2023, Docket Entry No. 694, p. 50 line 12
thru p. 51 line 7 (“So you’re sending unsigned prescriptions to the
– Mr. Ozoude, correct?”).
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Petitioners failed to establish that the Government’s comments were
improper or that the Government’s comments prejudiced their
substantive rights.
B. Petitioners’ Bond Requests
Pursuant to 18 U.S.C. § 3143(b), Petitioners have requested
bond pending resolution of their § 2255 motions.120
“A convicted defendant does not have a constitutional right to
bail pending appeal.” United States v. Nelson, NO. 4:17-CR-131-1,
2023 WL 3721340, at *2 (N.D. Miss. May 30, 2023) (citing
United States v. Olis, 450 F.3d 583, 585 (5th Cir. 2006)).
Although 18 U.S.C. § 3143(b) allows for the release of a convicted
defendant under certain circumstances, it also “‘establishes a
presumption against’ the release of a convicted defendant pending
appeal.” Id. (quoting Olis, 450 F.3d at 585). “To overcome the
presumption, a convicted defendant bears the burden of showing:
(1) [by clear and convincing evidence] that the
defendant is not likely to flee or pose a danger to the
120Motion for Release Pending Appeal, Docket Entry No. 1101
(Cruise); Motion for Release Pending Appeal, Docket Entry No. 1112
(Johnson); Motion to Take Judicial Notice of Facts in Support of
Bond Pending Appeal, Docket Entry No. 1129 (Cruise); Notice of No
Opposition and Request for Ruling on Defendant’s Motion for Bond
Appeal, Docket Entry No. 1132 (Johnson); Petitioner Lashonia
Johnson Motion for Bond Pending Her 2255 in Response to
United States Opposition, Docket Entry No. 1151; Petitioner
Lashonia Johnson Motion for Bond Pending Her 2255 in Response to
United States Opposition, Docket Entry No. 1154; Petitioner
Lashonia Johnson Motion for Bond Pending Her 2255 in Response to
United States Opposition, Docket Entry No. 1161; Amended Motion for
Release Pending 28 U.S.C. 2255 Habeas Review Appeal, Docket Entry
No. 1171 (Johnson); Emergency Motion to Expedite Ruling and Grant
Temporary Release Pending 2255 Resolution, Docket Entry No. 1190
(Johnson); Motion for Status and Expedited Ruling on Emergency
Release and § 2255 Motion, Docket Entry No. 1217 (Johnson).
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safety of any other person or the community if released;
(2) that the appeal is not for purpose of delay;
(3) that the appeal raises a substantial question of law
or fact; and
(4) that if that substantial question is determined
favorably to defendant on appeal, that decision is likely
to result in reversal or an order for a new trial of all
counts on which imprisonment has been imposed.”
Id. (quoting United States v. Valera-Elizondo, 761 F.2d 1020, 1025
(5th Cir. 1985)). “A substantial question is one that is either
novel, which has not been decided by controlling precedent, or
which is fairly doubtful; is of more substance than would be
necessary to a finding that it was not frivolous; and is a close
question or one that very well could be decided the other way.”
Id. at *4 (quoting Valera-Elizondo, 761 F.2d at 1023–24) (internal
quotation marks omitted).
As discussed extensively above, Petitioners’ § 2255 Motions
fail to raise meritorious claims, let alone substantial questions
of law or fact. Accordingly, Petitioners have failed to overcome
the presumption against their release pending appeal. Their
requests will be denied.
C. Johnson’s Motion for Judicial Admission and Judicial Estoppel
Johnson asks the court to “find that the Government is bound
by its judicial admissions and to apply judicial estoppel regarding
the Government’s inconsistent factual and legal positions
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concerning alleged ‘kickbacks’ in this case.”121
“Judicial estoppel is an equitable doctrine that ‘prevents a
party from asserting a position in a legal proceeding that is
contrary to a position previously taken in the same or some earlier
proceeding.’” Hopkins v. Cornerstone America, 545 F.3d 338, 347
(5th Cir. 2008) (quoting Hall v. GE Plastic Pacific PTE Ltd., 327
F.3d 391, 396 (5th Cir. 2003)). “A judicial admission is a formal
concession in the pleadings or stipulations by a party or counsel
that is binding on the party making them.” Martinez v. Bally’s
Louisiana, Inc., 244 F.3d 474, 476 (5th Cir. 2001).
As discussed above, the Government did not take inconsistent
factual and legal positions concerning the kickbacks in this case.
The record reflects that Dr. Jackson was paid to fraudulently sign
prescriptions for compounded drugs – which is an illegal kickback.122
The Government has maintained this position throughout the entirety
of this action.123 Johnson’s motion will therefore be denied.
D. Johnson’s Motion to Correct the Presentence Investigation
Report
121Petitioner’s Motion for Judicial Admission and Judicial
Estoppel, Docket Entry No. 1195, p. 1.
122Johnson’s Presentence Investigation Report, Docket Entry
No. 686, pp. 20–22 ¶¶ 49–51 (sealed); Plea Agreement, Docket Entry
No. 455, p. 9 (“Defendant and her co-conspirators sent or caused to
be sent claimants recruited by IFWAA to Dr. Jay Bender,
Dr. James Don Jackson, and others, who were paid illegal
remuneration in exchange for prescribing these compounded drugs to
claimants, regardless of medical need or condition.”).
123See, e.g., Government’s Response, Docket Entry No. 1203,
pp. 34–35 (sealed).
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Johnson has filed a motion seeking to correct alleged factual
inaccuracies in her presentence investigation report under Rule 32
of the Federal Rules of Criminal Procedure.124
Because “complaints regarding the contents of a presentence
investigation report must be raised prior to the imposition of
[the] sentence,” a district court lacks jurisdiction over the
merits of a post-judgment motion that seeks to correct a
presentence investigation report. United States v. Engs, 884 F.2d
894, 897 (5th Cir. 1989) (applying this holding to a motion under
Rule 32 of the Federal Rules of Criminal Procedure); see also
United States v. Ardoin, 2026 WL 479287, at *7 (E.D. Tex. Feb. 19,
2026) (applying the same holding to a motion under Rule 36 of the
Federal Rules of Criminal Procedure).
III. Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2255 Proceedings
states that a “district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” A certificate of appealability will not issue unless
that applicant makes “a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), which requires an
applicant to demonstrate “that ‘reasonable jurists would find the
124Pro Se Motion for Correction of Presentence Investigation
Report Pursuant to Fed. R. Crim. P. 32, Docket Entry No. 1213,
pp. 1-2 (sealed).
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district court’s assessment of the constitutional claims debatable
or wrong.’” Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)
(quoting Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)). Under
that controlling standard this requires a petitioner to show “that
reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner
or that the issues presented were adequate to deserve encouragement
to proceed further.” Miller-El v. Cockrell, 123 S. Ct. 1029, 1039
(2003) (internal quotation marks omitted). A district court may
deny a certificate of appealability, sua sponte, without requiring
further briefing or argument. See Alexander v. Johnson, 211 F.3d
895, 898 (5th Cir. 2000).
Because the court concludes that reasonable jurists could not
find any of Petitioners’ claims meritorious, a certificate of
appealability will be denied.
IV. Conclusion and Order
Petitioners’ Motions to Jointly File 28 USCS § 2255 Petition
Pursuant to F.R.C.P. 20 (Docket Entry No. 1104 [Cruise], No. 1114
[Johnson]) are GRANTED.
Johnson’s motions to amend that were filed before the one-year
filing deadline (Addendum Additional Grounds to the 28 U.S.C. 2255,
Docket Entry No. 1131; and Motion to Amend “Prior Submitted” 2255
Motion Pursuant to Fed. R. Civ. P. (15)(a), Docket Entry No. 1172)
are GRANTED. Johnson’s remaining motions to amend (Docket Entry
Nos. 1179, 1183, and 1188) are DENIED AS MOOT because they were
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filed after the one-year filing deadline and reassert arguments
included in Docket Entry Nos. 1131 and 1172.
For the reasons explained above, Petitioners’ Motions Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person
in Federal Custody (Docket Entry No. 1102 [Cruise], No. 1115
[Johnson]) as amended by Johnson’s Addendum, Johnson’s Motion to
Amend, and Cruise’s § 2255 Supplement (Docket Entry Nos. 1131,
1172, and 1191, respectively) are DENIED.
Accordingly, Petitioners’ Requests to File Oversized 28 U.S.C.
§ 2255 Briefs (Docket Entry No. 1100 [Cruise], No. 1113 [Johnson]);
Johnson’s motions asking the court to unseal certain documents
(Docket Entry Nos. 1162, 1163, 1222); Johnson’s Motion for
Discovery Under Rule 6 of the Rules Governing 2255 Proceedings
(Request for Grand Jury Transcript) (Docket Entry No. 1175);
Cruise’s Motion for Evidentiary Hearing Pursuant to 28 U.S.C.
§ 2255(b) (Docket Entry No. 1223); and Cruise’s Request to Take
Judicial Notice of Substitution of Government Counsel (Docket Entry
No. 1224) are DENIED AS MOOT.
Petitioners’ motions for release pending appeal (Docket Entry
Nos. 1101, 1112, 1132, 1151, 1154, 1161, 1171, 1178, 1190, 1217)
are DENIED. Accordingly, Cruise’s Motion to Take Judicial Notice
of Facts in Support of Bond Pending Appeal (Docket Entry No. 1224)
is DENIED AS MOOT.
Johnson’s Motion for Judicial Admission and Judicial Estoppel
(Docket Entry No. 1195) is DENIED.
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Johnson’s Pro Se Motion for Correction of Presentence
Investigation Report Pursuant to Fed. R. Crim. P. 32 (Docket Entry
No. 1213) is DISMISSED.
Because the court concludes that no reasonable jurist could
find any of Petitioners’ claims meritorious, certificates of
appealability are DENIED.
Petitioners have filed a number of papers, which they may
characterize as motions, however labeled. The court has attempted
to identify and address all of the Petitioners’ motions in this
Amended Memorandum Opinion and Order. Due to the volume of papers
filed by the Petitioners, who are appearing pro se, the court may
have failed to identify a paper that Petitioners believe to be a
motion. For the sake of completeness, in the event that the court
has not expressly ruled on a paper that Petitioners believe to be
a motion, it is DENIED for the reasons stated in this Amended
Memorandum Opinion and Order.125
125The court has allowed the parties extraordinary leeway in
submitting lengthy briefs and other written materials in connection
with this federal habeas action. As the length of this Amended
Memorandum Opinion and Order indicates, the court has expended
considerable time reading these papers and performing a significant
amount of independent research to be as fully informed as possible
when addressing the parties’ arguments. While, because of the
sheer volume of information presented, it is not impossible that
some arguments were overlooked, the parties should assume that
failure to expressly address a particular argument in this Amended
Memorandum Opinion and Order reflects the court’s judgment that the
argument lacked sufficient merit to warrant discussion.
Accordingly, the court strongly discourages the parties from
seeking reconsideration based on arguments they have previously
raised or that they could have raised.
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The Clerk shall provide a copy of this Amended Memorandum
Opinion and Order to the parties.
SIGNED at Houston, Texas, on this 16th day of April, 2026.
SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE
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