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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

EASTERN DIVISION
CASE NO. 1:14 CR 276
HAROLD PERSAUD, 

Defendant- Petitioner, JUDGE DONALD C. NUGENT

v. 

UNITED STATES OF AMERICA, 
AND ORDER
Plaintiff-Respondent. 

This matter comes before the Court upon Harold Persaud?s Motion to Vacate under 28
U.S.C. 2255. (ECF #217). The petition raises two grounds for relief, both involving
allegations of ineffective assistance of counsel at trial and on appeal. The ?rst ground alleges
that counsel was ineffective for allowing ?untested, unquali?ed ?expert? testimony and
impermissible opinion testimony? to be admitted at trial, and for failing to challenge the
admission of such testimony on appeal. The second ground claims ineffective assistance of
counsel for failing to object to ?amount of loss? calculations and failing to properly address this
issue on appeal. The government ?led a Response in opposition, and Dr. Persaud ?led a Reply
and a Supplement to his Reply. (ECF #223, 224, 225). This matter is now fully briefed and

ready for disposition.

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FACTUAL AND PROCEDURAL HISTORY

Following a nearly month long jury trial, Dr. Persaud was convicted of ?fteen counts of
Health Care Fraud, Making False Statements Relating to Health Care Matters, and Monetary
Transactions in Property Derived from Criminal Activity. The charges were based in large part
on claims that Dr. Persaud performed unnecessary medical procedures and tests, falsi?ed medical
records and test results, including systematically over reporting the degree of arterial blockages in
his patients in order to justify additional procedures, and ?upcoding? certain services performed
when billing insurers and Medicare, all for monetary gain. The jury also found that money seized
?om Dr. Persaud?s accounts was forfeitable as proceeds of this health care scheme; money in his
wife?s account was related to his money-laundering conviction; and that his scheme generated
pro?ts in the amount of $2,100,000. During trial, the Government presented testimony from
retained experts, and from physician witnesses, among others. The defense relied on one expert
cardiologist, two referring physicians, and a coding expert. Dr. Persaud was sentenced to twenty
years of imprisonment and restitution in the amount of $5,486,857.03.

Following his conviction, Dr. Persaud ?led three separate appeals challenging the
conviction and sentence, the forfeiture order, and the restitution amounts. The Court of Appeals
af?rrned Dr. Persaud?s convictions on all counts, as well as the forfeiture order and the

restitution amount.

LEGAL STANDARD
In order to obtain collateral relief ?a prisoner must clear a signi?cantly higher hurdle that

would exist on direct appeal.? United States v. rady, 456 U.S. 152, 166, (1982). There are only

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four grounds upon which a request for relief under 28 U.S.C. 2255 may be granted: that
the sentence was imposed in violation of the Constitution or the laws of the United States; (2)
that the court was without jurisdiction to impose such a sentence; (3) that the sentence was in
excess of the maximum authorized by law; or (4) that the sentence is otherwise subject to
collateral attack.? Hill v. United States, 368 US. 424, 426-427 (1962). Dr. Persaud claims that
his conviction and resulting sentence were imposed in violation of the Constitution of the laws of
the United States, or are otherwise subject to collateral attack. In order to succeed, he must
?sustain[] [his] contentions by a preponderance of the evidence.? The burden of showing that he
is in custody ?in violation of the Constitution of the United States is on the prisoner,? See, eg.,
Jones v. Russell, 396 F.2d 797 (6th Cir. 1968). Pough v. United States, 442 F.3d 959, 964 (6th
Cir. 2006). Section 2255 relief is not available for alleged errors that are not of a constitutional
or jurisdictional magnitude or that could have been reached by a direct appeal. Stone v. Powell,
428 US. 465, 477 (1976). ?Once the defendant?s chance to appeal has been waived or
exhausted. . . we are entitled to presume that he stands fully and fairly convicted. United

States v. Frady, 456 US. 152, 164 (1982).

ANALYSIS
1. Ineffective Assistance of Counsel
Both grounds in Dr. Persaud?s petition seek redress for the alleged ineffectiveness of his
trial and appellate counsel. A defendant seeking to establish ineffective assistance of counsel
must satisfy the standards set forth in Strickland v. Washington, 466 US. 668 (1984). In

Strickland, the United States Supreme Court held that a defendant must ?rst show that counsel?s

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performance was de?cient. Id. at 687. This means that counsel?s representation ?fell below an
objective standard of reasonableness.? Id. at 687-88. This inquiry must be made in proper
context, considering the prevailing circumstances and counsel?s perspective at trial, and without
relying on the 20-20 vision created by hindsight. See, Id. at 688?89. In addition, judicial
scrutiny of counsel?s performance must be ?highly deferential.? Id. at 689. The Court should
presume that counsel?s conduct falls within the wide range of reasonable professional
assistance.? Id. ?Counsel may exercise his professional judgment with respect to the viability of
certain defenses and evidentiary matters without running afoul of the Sixth Amendment.? Lewis
v. Alexander, 11 F.3d 1349, 1363-54 (6th Cir. 1993).

In addition to proving de?ciency under this highly deferential standard, a defendant must
show that the de?cient error by counsel was prejudicial to his defense. Id at 692. It is not
suf?cient for the defendant to show ?that the errors had some conceivable effect on the outcome
of the proceeding? as nearly every conceivable ?act or omission of counsel would meet this test.?
Id. at 693. Instead, the ?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
694. reasonable probability is a probability suf?cient to undermine con?dence in the
outcome.? Id.

A. Ground One: Failing to challenge expert and lay witness opinion testimony

Dr. Persaud claims that his trial and appellate counsel were both ineffective for failing to
lodge a Daubert challenge to the Govemment?s expert witnesses at trial, and for failing to raise
this issue on appeal. He also claims counsel were ineffective for failing to challenge the

admission of opinion testimony from the physician witnesses who were not identi?ed as expert

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witnesses prior to trial. He claims that counsel was ineffective for failing to object to the
introduction of expert testimony without the proper quali?cation of the expert witnesses, and for
failing to object to the admission of opinion testimony by physician witnesses who testi?ed for
the Government but who were not identi?ed in discovery as experts.

1. Identi?ed Experts? Opinion Testimony

There is no question, based on the evidence presented at trial that the witnesses who had
been identi?ed as experts were suf?ciently quali?ed to opine on the matters addressed by each at
trial. ?If evidence admitted without objection was admissible, then the complained of action fails
both prongs of the Strickland test.? United States v. Dado, 759 F.3d 550, 566 (6?1 Cir. 2014).
Counsel is not required to make a Daubert challenge to a expert testimony that clearly meets
Daubert ?5 standards for admissibility. Further, there is no need to conduct a voir dire on a
proffered expert?s quali?cations if their quali?cations are obvious. See, United States v. Cobb,
397 F. App?x 128, 139 (6th Cir. 2010). At trial, the Government presented evidence of each
expert?s quali?cations, and with or without objection, the Court would have permitted the
testimony of each expert based on the information provided. Dr. Persaud has offered no
evidence or suggestion of any identi?able de?ciency that would have prevented any of these
experts from being quali?ed to offer testimony in this case.

Further, the quali?cations of the expert witnesses were known to the defense prior to trial,
so defense counsel was likely aware that any challenge to the admissibility of the expert?s
testimony would have been fruitless. Judicial scrutiny of counsel?s performance is required to
be highly deferential, and the exercise of sound strategy and judgment should be presumed.

There was no need for Dr. Persaud?s counsel to waste resources and time, and risk being seen as

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unduly argumentative or incompetent by the jury, by objecting to the admission of clearly
admissible testimony. It is well established that a defendant?s right to counsel does not give him
a right to force his counsel to present every possible non-??ivolous argument that could be made
on his behalf. See, Jones v. Barnes, 463 U.S. 745, 751 (1983). In addition, although Dr.
Persaud?s trial counsel did not baselessly attempt to attack the admissibility of the testimony, he
did vigorously challenge the substance and credibility of the testimony at trial on cross-
examination, and through the testimony of experts retained by the defense. Trial counsel?s
failure to challenge or object to the admission of the Government?s retained experts was not
unreasonable and did not prejudice Dr. Persaud?s case in any way. Consequently, Dr. Persaud?s
appellate counsel was also not ineffective for raising this issue on appeal as it was clear that trial
counsel did not err in allowing the testimony to be admitted unchallenged. Dr. Persaud has not
presented any information that would suggest that his counsel?s failure to challenge the
admissibility of the Government experts? testimony was error, that it rose to the level of a
constitutional violation, or that he suffered any prejudice whatsoever from this alleged error.
2. Physicians? Opinion Testimony

Dr. Persaud argues that physician witnesses called by the Government provided opinion
testimony that was not allowed under Fed. R. Evid. 701, and was not properly quali?ed under
Fed. R. Evid. 702. As part of his ?rst ground for he relief, he claims that his trial and appellate
counsel were ineffective for failing to object to the presentation of this evidence, and failing to
object that these witnesses were not disclosed as experts prior to trial. The government argues
that these physicians were not retained experts, provided testimony based upon on their own ?rst

hand observations, and to the extent that they may have provided opinions subject to Rule 702,

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that they met all of the quali?cations necessary to do so. A great deal of the testimony provided
by the physicians was within the scope of Rule 701. They testi?ed to what they saw and heard
when reviewing patient ?les and test results and images, talking with patients, and in their
personal interactions with Dr. Persaud. A lay witness may testify to the ?appearance of persons
or things, identity, the manner of conduct, competency of a person, degrees of light or darkness,
sound, size, weight, distance, and an endless number of items that cannot be described factually
in words apart from inferences.? Harris v. J.B. Robinson Jewelers, 627 F.3d 235, 240 (6?h Cir.
2010). To the extent that they may have also testi?ed about conclusions or other opinions
relating to the interpretation of any such information, there is no question that these physicians
are quali?ed to be experts with special knowledge, training, and education in the medical ?eld.
Further, the fact that multiple physician witnesses, and retained expert witnesses testi?ed
similarly provides some evidence that these witnesses were applying reliable principles and
methods to the facts of this case.

Dr. Persaud does not come out and allege that the physicians would not have been
quali?ed as expert witnesses had they been overtly presented as such. Rather, he alleges that his
counsel was de?cient for failing to challenge the admission of such evidence. For all of the
reasons set forth above in the discussion about the retained experts, Dr. Persaud?s argument on
this issue fails to convince. The physicians were clearly quali?ed to be experts based on their
education and experience. As noted above, a defendant?s right to counsel does not give him a
right to force his counsel to present every possible non-frivolous argument that could be made on
his behalf, and it certainly does not require an attorney to present motions that have no chance of

success. See, Jones v. Barnes, 463 US. 745, 751 (1983). Dr. Persaud cannot establish any

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prejudice stemming from his counsel?s failure to raise an objection that would have been
overruled.

Even if Dr. Persaud could show that his trial counsel?s failure to challenge the admission
of any Opinion testimony offered by physician witnesses amounted to error, he has not
established that the error rose to the level of a constitutional violation, or that he suffered any
prejudice from that alleged error. Dr. Persaud identi?es various rules of discovery and evidence
that he claims were violated by the Government, but does not allege that these violations
impacted Dr. Persaud?s ability to present a defense, nor does he identify any changes that would
have been made in his approach to trial if those rules had been followed. There is no allegation
that Dr. Persaud or his counsel were unaware of the testimony expected to be offered by the
physician witnesses, including what opinions those witnesses would espouse, what those
opinions were based on, and what quali?cations they had to render such opinions. Therefore,
even if the Government failed to identify the physicians? testimony under Fed. R. Crim. P.
there is absolutely no basis upon which this Court could ?nd that Dr. Persaud was
prejudiced by this alleged failure. As set forth above, there is no evidence of inef?ciency of
appellate counsel and no evidence that Dr. Persaud was prejudiced by any alleged errors made by
his counsel. Ground One provides no basis for the requested relief.

B. Ground Two: Amount of Loss Calculation

Dr. Persaud also argues that his counsel was ineffective for failing to object to the amount
of loss calculation used to calculate his sentence. This claim is belied by the record. Trial
counsel did object to the amount of loss calculation multiple times throughout the sentencing

process, including in the Sentencing Memorandum (ECF #115, PageID 1111), in the objections

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to the Presentence Investigation Report (ECF #106, PageID 926-928), and at the sentencing
hearing. (ECF #133, PageID 1604-1611). Although, the Court ruled against Dr. Persaud on
these objections and arguments, and his sentence was af?rmed on appeal, there is no basis for a
?nding that his counsel was ineffective, since his counsel addressed these issues at every

available opportunity prior to sentencing.

HI. Certi?cate of Apnealabili?w

Pursuant to 28 U.S.C. 2253, the Court must determine whether to grant a certi?cate of
appealability as to any of the claims presented a petition under 28 U.S.C. ?2255. That section
provides, in part, as follows:

Unless a circuit justice or judge issues a certi?cate of appealability, an
appeal may not be taken to the court of appeals from --

(A) the ?nal order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court; or

(B) the ?nal order in a proceeding under section 2255.
(2) A certi?cate of appealability may issue under paragraph (1) only if the
applicant has made a substantial showing of the denial of a constitutional

right.

(3) The certi?cate of appealability under paragraph (1) shall indicate which
speci?c issue or issues satisfy the showing required by paragraph (2).

In order to make ?substantial showing? of the denial of a constitutional right, as required
under 28 U.S.C. 2255(c)(2), a habeas prisoner must demonstrate ?that reasonable jurists could
debate whether . . . the petition should have been resolved in a different manner or that the issue
presented were ?adequate to deserve encouragement to proceed further.? Slack v. McDaniel, 529
US. 473, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000) (quoting Barefoot v. Estelle, 463 US. 880,

9

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893 n.4, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983).)

Although the statute speci?es that a certi?cate of appealability must be issued by a circuit
justice or judge. the Sixth Circuit is one of three circuits that has held that this language includes
both circuit and district judges. See, Lyons v. Ohio Adult Parole 105 F.3d 1063 
Cir. 1997). The Federal Rules of Appellate Procedure have explicitly included district judges
under this authority as well. Fed. App. R. P. This Court. after reviewing the standards
and conditions required for the issuance of a certi?cate of appealability, and having thoroughly
reviewed the arguments, both procedural and factual in support of Mr. Viola?s motion to vacate,
determines that there is no substantial showing of the denial of a constitutional right, and there is
no reasonable basis upon which to debate the Court?s procedural rulings. Therefore. the Court

denies the certi?cate of appealability.

CONCLUSION
For the reasons set forth above, Dr. Persaud?s Motion to Vacate under 28 U.S.C. 2255,

(ECF #217), is DENIED and no certi?cate of appealability will be issued. IT IS SO ORDERED.

Wilt/Wt

DONALD C. 
United States District dge

DATED:  10 lg

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