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Appeal to the Tenth Circuit
Combine Certificate for Appealability and Brief
Case 09-1505
Comes now, Albert Celio, Pro Se, showing that a substantial denial of Movant's 5 and 6
Amendment Right occurred debatable among jurists that a court could resolve the issues
differently, or that the questions deserve further proceedings.
Movant requests that the Tenth Circuit Court grant him relief and remand back to the District
Court, his 2255 Motion for further proceedings that either requires the U.S. Attorneys office to
respond to the facts and issues presented in violation of Movant's 5th and 6th Amendment Rights
in the best interest of justice, or allow Movant the opportunity to amend his 2255 Motion based
on the errors, issues, facts, and arguments, presented herein thus preventing a gross miscarriage
of justice.
The issued raise in this appeal are that the district court erred in dismissing Movant's Pro Se
2255 Motion with prejudice:
1) Without considering errors found in Magistrate Judge's recommendations;
2) That Movant's 2255 Motion (Doc. # 495-1-2 and doc. # 498) were ―overly long and
―prolix‖;
3) Without addressing any part, or portion thereof, of claims 1-4 (Doc. # 495-1) and the
Addendum (Doc. # 498, Pgs. 1-9), based on their being ―vague‖, or ―confusing‖, or that
claims 5 and 6 were ―difficult to understand‖;
4) Without addressing any portion thereof, and facts thereto, in support of claims 7-10 (Doc.
# 495-1);
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5) Without properly considering Nasious's five-point criteria;
6) Using rule 8(a)(2), 12, and 2(c) governing Fed. R. Civ. P. to subjectively weed out Pro Se
filings, while asserting otherwise, and;
7) Based on HB 4115 that if passes prohibits the district court from dismissing a complaint
based on the out-dated Conley standard.
Statement of Case
1) On May 10, 2001, Movant was indicted on seven counts -- counts 1-4 for writing four
individual prescriptions (3 post-dated) for a control substance issued without medical necessity
and counts 5, 6 and 7 for conspiracy to distribute control substances with co-defendants Steve
Compton, Lu-Ann Reyes and Tim Murphy (Doc. # 1).
2) On April 6, 2005, Movant was tried and convicted on counts 1-4 in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(C), and aiding and abetting in violation of 18 U.S.C. § 2 in a three day while
being incarcerated for ten months previously. Movant was sentenced July 1, 2005 to 27 months
in Federal prison (Leavenworth) with a concurrent three-year status of supervised release ending
May 2009 (Case # 01-CR-165) (Doc. # 409 to 422).
3) Movant's court appointed attorney raised the following counts or issues on direct appeal
(Case # 05-1330): A) Insufficiency of the evidence to convict; B) Failure to instruct the jury
that the defendant ―knowingly acted outside the usual course of medical practice or without a
legitimate medical purpose; C) Failure to grant motion for mistrial based on government’s
failure to supply exculpatory evidence prior to trial, and; D) Thirteen issues of Prosecutorial
misconduct.
4) 10th Circuit Court of Appeal affirm conviction on April 30, 2007 (Doc. # 466);
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5) Supreme Court denied Certiorari October 1st, 2007 (Doc. # 468);
6) On September 26, 2008 (Doc # 472 with exhibits submitted), and on October 31, 2008,
resubmitted his second 2255 Motion, with memorandum (Doc. # 479, 480 & 481). The 2255
form was obtained from the district court.
7) On February 17, 2009, Movant submitted a Motion for court appointed attorney (Doc. # 486).
Movant was denied motion for appointment of counsel on April 27, 2009 (Doc. # 494).
8) On March 18, 2009, Movant was ordered to resubmit a third 2255 complying with rules 2(c),
8(a) and 12 by April 20, 2009 (Doc # 487).
9) Movant submitted a 2255 printout on April 20, 2000 intended only as an exhibit (Doc. # 490)
concurrent with a written request for a ten day extension to the court for Movant to submit his
April 20 2255 Motion (See doc. # 489).
10) Movant filed his third 2255 Motion on April 28, 2009 (Doc. # 495 and 495-2) with an
Addendum filed May 7, 2009 (See doc. # 498).
11) On August 5, 2009, the Magistrate Judge recommended to the District Court to dismiss Dr.
Celio’s Motion with prejudice based allegedly on his failure to cite claims in accordance to rules
appended but mainly for failure to present his 2255 Motion in a short and clear manner pursuant
to rule 8(a)(2) (Doc. # 501).
12) On August 19, 2009, Dr. Celio filed a Motion to draft a final 2255 Motion or be given time
to seek and retain counsel by February 17, 2010 (See doc. # 502), but on October 29, 2009,
Movant was denied his Motion (Doc. # 503).
13) On November 16, 2009, Movant filed his objection to Magistrate's recommendation to
dismiss case with prejudice (Doc. # 508).
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14) On January 20, 2010, Movant filed a supplement to doc. # 495 (2) memorandum's statement
of facts (See doc. # 513).
15) On February 10, 2010, Judge Arguello adopted and affirmed Magistrate's recommendation
to dismiss the case with prejudice (See doc. # 514).
16) On April 2, 2010, Movant filed a Motion with the Tenth Circuit Court of Appeals for the
court granting Movant counsel supported by the facts and evidence in a 40 page document.
Movant was denied his Motion on April 5, 2010 with no reason given.
17) On April 12, 2010, Movant filed a motion for clarification to Sean Harrington's allegation in
the futility of a Pro Se litigant's federal cases being granted. The court has yet to reply.
Statement Of The Facts
Salient Points Presented In Movant's Memorandum, Doc. # 495-2
All exhibits and soundtracks are referenced unchanged from Movant's September 26, 2008
2255 Motion (Doc. # 472 ).
During February 1999 and 2000, Dr. Celio discovered and had the DEA notified of serious
individual breaches in controlled substance trafficking through his office by Lu-Ann Reyes
(Office manager) and Steve Compton (ex-patient) respectively (Trial testimony, Pg. 429, Ls. 7-
17 and Pg. 288, Ls. 9-16). Between 1997 and 1999, Reyes was ordering and receiving narcotic
shipments behind Dr. Celio's back (Exhibits 11, 11A and 12) during times Dr. Celio was either at
another office or covering emergency rooms. Dr. Celio incorporated the services of an outside
investigative team (Daril Cinquanta and David Colwell) (Exhibit 2, 2A, 3 and 4). Steve
Compton was suspected as being involved with Lu-Ann Reyes and referenced, as such, on two
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documents written by David Colwell on April 15, 1999 and May 14, 1999 (Exhibit 2, pages 4
and 5) (See also trial transcript, Pg. 288, Ls. 9-16 ). The later document stated that ―Steve
Compton's name was turned over to the DEA two weeks ago‖ and asking Daril ―the status‖
thereof). The DEA acknowledged ―knowing‖ that Steve Compton ―had a forged script pad‖
referenced in a taped interview they had with Lu-Ann Reyes on March 2, 1999) (See exhibit 10,
Pg. 26, Ls. 1-4, bates # 000158). On April 5, 1999, Dr. Celio's private detective was told by the
DEA to ―back off‖ his investigative efforts (Exhibit 2A). Dr. Celio’s office maintained
intermittent contact with the DEA since February 1999 after reporting Lu-Ann Reyes ordering
controlled substances (Facts. cited in doc. 495-2, Pgs. 8-11).
Lu-Ann Reyes's co-accomplice (Steve Compton's) was caught forging scripts after a
pharmacist faxed a script on February 18, 2000 to Dr. Celio requesting authenticity (See exhibit
7, cited doc. # 495-2, Pg. 11). Thereafter, Dr. Celio had the staff at All Family Health Care
randomly called and investigated a number of pharmacies (Exhibit 46A, Pg. 2, Ls. 10-20). After
uncovering numerous forgeries, Dr. Celio had his staff report Compton's forgeries to the DEA
(Trial transcript, Pg. 288, Ls. 9-16) (Cited doc. 495-2, Pg. 34 and 37). Compton forged
numerous scripts during a span of eight to nine months, a portion of which is represented in
exhibit 17. Dr. Celio confronted Steve Compton (Trial transcript, Pg. 428, Ln. 21 to Pg. 429, Ln.
6) and placed Compton in drug rehab (Pg. 247, Ls. 22-24) (See also Compton's confession
exhibit 19D, Pg. 34, Ln. 13 to Pg. 35, Ln. 12). Dr. Celio had discharged Steve Compton
approximately nine months earlier after he didn’t follow the referral of a specialist that had
initially prescribed Compton narcotics and even wrote a refill for 40 percocet during Compton's
referral visit (Exhibit 64 and exhibit 19E, Pg. 45, Ls. 7-21). Dr. Celio didn’t tell Compton that he
had the forgeries turned over to the DEA as Compton acknowledged in his interview with Dr.
Celio's investigator (Exhibit 19C, Pg 30, Ls. 11-15).
When confronted by the DEA, Lu-Ann Reyes told the DEA, on March 2, 1999, that Dr. Celio
knew and split controlled substances she was ordering. The interview was taped by the DEA
demonstrating numerous contradictions and false statements that physical evidence corroborated
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that Reyes "knew" and "split" allegations were false (Exhibit 10, or summary as cited doc. # 495-
2, Pgs. 13-28) (Wendy Iacovetta, exhibit 15, Pg. 5, Ln. 18 to Pg. 6, Ln. 20, cited doc. # 495-2,
Pgs. 29-30) and Compton's confession (Exhibit 19, Soundtrack D-1 and D-2, cited doc. # 495-2,
Pgs. 38-43) corroborating that Dr. Celio took no part in Compton's drug trafficking. Specifically,
Compton stated that ―Some things were made up, construed and flat out lied about -- And they
needed someone to participate, corroborate and verify that‖ (Exhibit 19, Pg. 31, Ls. 1-3); that he
was ―threatened with my life‖ and that ―when they went to my wife‖ they said, ―you better get
your husband to say this, this, and this or, we are going to take your kids and you won’t see them
again‖ (Exhibit 19, Pg. 47, Ln. 21 to Pg. 48, Ln. 21; Pg. 7, Ls. 5-10). Compton affirmatively
stating to Dr. Celio's investigator that ―Doc didn’t show you how to write shit did he?‖-- ―You
told them he did?‖-- ―And you told them that he gave a pad of scripts to you?‖ (Pg. 32, Ls. 15-
21). Dr. Celio's investigator stated ―I think that you hooked that DEA agent so that the two
thousand dollars he was bringing, you knew, or he knew, or you both knew, he was going to take
it because you told him it was the money that was owed to him by you. And that made it look
like a sale. You know?‖ Compton answered affirmatively (Pg. 8, Ls. 11-17). Steve Compton's
wife also stated to Dr. Celio's detective that she was threaten with removal of her kids as well
(Exhibit 20, Pg. 5, Ls. 7-11, or soundtrack E cited on Pg. 43 of doc. # 495-2). Tim Murphy, (co-
defendant in the testosterone count) stated that agent(s) threaten and leveraged him as well with
his co-indicted fiancee if he didn't cooperate -- "that's what they made me agree to in the plea"
(Exhibit 53, Pg. 13, Ls. 15-21 and Pg. 29, Ls. 6-10 or soundtrack M). However, the prosecution
made it a point to assassinate Dr. Celio at trial interjecting Murphy as co-defendant in the other
case, not once, but twice (Trial transcript, Pg. 173, Ls. 4-9 and Pg. 298, Ls. 15-22).
On March 20, 2000, Steve Compton told the DEA that Dr. Celio gave him "a" script pad to
forge and told him how to do it (DEA report MK-99-2041 or exhibit 39A) (See physical
evidence exhibits 40, 41, 42 & 43 demonstrating these statements completely false that agents
for the prosecution could have or should have known were false (Cited on pages 97-99 of doc. #
495-2).
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On April 2, 2002, instead of taking a plea offer (Public defender as counsel), Dr. Celio hired
private counsel to represent him. Afterwords, the prosecution began to undermine and
systematically strip Dr. Celio from his employment (Excel and Walsenberg ER) (Exhibit 1D and
1E) (See also doc. # 495-1, Pg. 69, Ln. 17 to Pg. 70. Ln. 9). After Dr. Celio refused to take a
plea offer in August 2003, agents for the prosecution were in contact with Dr. Celio's Medical
Board. At a detention hearing on June 25, 2004, an agent for the prosecution testified that he
contacted Dr. Celio's medical board approximately "ten" times (Doc. # 383, Pg. 90, Ln. 22 to Pg.
91, Ln. 1) (Movant cited the detention hearing facts, doc. # 495-2 pages 108-111) and the issue to
such (Doc. # 495-1, Pg. 65, Ln. 1 to Pg. 67, Ln. 2 and Pg. 70, Ln. 1-10). An agent for the
prosecution testified that the board "felt that there might be causation for Dr. Celio to have an
evaluation (Doc. # 383,or doc. # 495-2, Pg. 91, Ls. 9-10) and that he felt that Dr. Celio was a
"jeopardy to public safety" (Doc. # 383, or doc. # 495-2, Pg. 92, Ls. 12-13) (The medical board
was previously well aware of Dr. Celio's May 10, 2001 indictment after Dr. Celio's attorney sent
a letter to the board on December 6, 2002 of a pending plea agreement (Exhibit 103 provided
upon request). It would appeared that agents for the prosecution caused, or precipitated, Dr.
Celio's medical board into conducting a competence evaluation so that it may claim its own
incompetency evaluation at the expense of Dr. Celio’s 5th Amendment right (Exhibits 80A and
85 A & B and exhibits 71, 83 & 84 respectively). Dr. Celio presented the facts and arguments
above. The prosecution petitioned the court for any and everything discussed during the medical
board’s evaluation be disclosed (Exhibits 71, 83 & 84). Dr. Celio’s medical license was
suspended on March 2, 2004. The medical board upheld the suspension on March 15, 2004
(Exhibit 73) allegedly for Dr. Celio's failure to complete the evaluation that was contingent on
him discussing his criminal case despite CPHP sending a letter to the medical board after a
scheduled February 9, 2004 meeting with Dr. Celio stating that they cannot complete their
evaluation until after the trial (Exhibit 72, Pg. 8, Ls. 6-16). On March 11, 2004, at a post-
suspension hearing with the medical board, Dr. Celio objected and cited his constitutional rights
and the understanding he had with CPHP. On June 14, 2004, the medical board sent Dr. Celio an
offer for an "Administrative Medical License" stating that, although it felt that it didn't violate
Dr. Celio's 5th Amendment right, by signing said document, Dr. Celio would be able to hold an
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―Administrative Medical License‖ with certain stipulations (See exhibit 74). At the avocation of
prosecutor Tafoya, Dr. Celio was incarcerated four days later at a status conference meeting and
the administrative license offer became mute. However, probation officer Zorn testified at Dr.
Celio’s June 25, 2004 detention hearing, she wasn’t asking that Dr. Celio be detained, but for a
status conference and halfway house placement (Doc. # 383, Pg. 37, Ls. 4-7; Pg. 38, Ls. 10-12 )
and never asked for a warrant (Pg. 38, Ls. 10-12). Zorn's recommendation was also faxed to
prosecutor Tafoya on June 3, 2004 (Document available upon request) advocating a status
conference and halfway house placement. The prosecution capitalized on these events, in the
end, advocating detention because Dr. Celio had ―unstable employment‖, ―not following rules‖,
and ―not disclosing his change of address‖ despite Dr. Celio giving his attorney the address to
give to pretrial services with concerns to prevent perceived home-owner contact and harassment
(See doc. # 382, Pg. 96, Ls. 9-14; Pg. 97 Ls. 20-21 and Pg. 98, Ls. 10-23) (See also exhibits 89A,
B and C).
While incarcerated, Dr. Celio wasn’t given the option to deny the court-ordered incompetency
evaluation raised by the prosecution that would help prevent the prosecution from obtaining
defense information (See governments pre-sentencing report stating that ―the court is aware of
the report in its entirety‖ and that ―The government submits that, based on what is believed to be
contained in the report, defendant would benefit by an extended period of supervised release‖
(PSI report, Pg. 8, paragraph L). Dr. Buckhorn conducted the court-ordered interview on
September 17, 2004 without Dr. Celio having the benefit to present evidence and exhibits in his
defense. Despite this deficit, Dr. Buckhorn stated that ―it is equally likely than not that what was
discussed was as Dr. Celio described‖ (Exhibit 58, Pg. 3, Ls. 10-14).
Salient Tape Related Facts Presented In Brief Only
On May 11, 2000, Steve Compton called Dr. Celio, while consensually being taped by the
DEA, to medically help his ―buddy‖ (Robert Hogan - undercover officer) allegedly ―in some
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pain‖ (Exhibit 23, Pg. 2, Ln. 13, government's exhibit 101C). Dr. Celio denied, not once, but
five times Compton's request to call in a prescription before seeing his ―buddy‖ (Pg. 3, Ls. 8 &
30; and Pg. 4, Ls. 23, 25, & 27) despite Compton stating that his ―buddy‖ had "one thousand
dollars" (Pg. 2, Ln. 4) (Reference to the above facts cited doc. # 495-2, Pgs. 49-52).
On May 18, 2000, Hogan scheduled an office-visit under the name Robert Logan. The office
visit was taped by the DEA (See exhibit 25, government’s exhibit 104E). Hogan stated that he
―had an old knee injury‖ (Pg. 8, Ln. 19) involving the ―cartilage‖ (Pg. 10, Ln. 7) that acts up
―when the weathers bad" (Pg. 8, Ls. 27-28) and is "painful at times" (Pg. 13, Ln. 6). Hogan
responded yes to the question that it is "progressively getting worse" (Pg. 16, Ls. 29 to Pg. 17,
Ln. 2) and falsely responded to Dr. Celio's examination of his knee (Pg. 12, Ls. 5-9 -- passage,
exhibit 101 or soundtrack F). Hogan turned down alternative medications (Pg. 9, Ls. 1-2) and an
injection (Pg. 10, Ln. 2). Hogan obtained a non-contested prescription for 30 Percocet (Exhibit
102, government’s exhibit # 6) with a working diagnosis of DJD (Degenerate Joint Disease, Pg.
15, Ln. 14), and instructions to obtain an x-ray (Pg. 23, Ln. 1). Hogan paid the administrative
office, which Dr. Celio was sub-contacted to, the normal and customary rate of seventy dollars
(Pg. 23, Ln. 18) (See exhibit 38) (May 18, 2000 tape cited doc. # 495-2, Pgs. 53-66).
On May 25, 2000, instead of following up for an office visit, Hogan surprised Dr. Celio with
Compton (Trial transcript, Pg. 374, Ln. 24 to Pg. 375, Ln. 2) at a meeting Steve Compton
arranged (Exhibit 27, Governments 106E). Dr. Celio obtained additional stock, held as collateral
for debt previously owed by Compton, at the request and assurance that Compton had 2000
dollars (Exhibit 34). Before Dr. Celio arrived, Compton stated to Hogan ―We just say, hey Doc,
you know, 1 got the dough. Steve said you needed some dough for the stocks -- We hooked up
my side to come along anyway‖ (Pg. 3, Ls. 6-13).
After Dr. Celio arrived (Pg. 27. Ln. 10), Compton stated ―Bobby gonna spot you the dough so
we can do this stock deal‖ (Pg. 29, Ls. 14-16). Hogan expressed that he didn't want to go back to
the office (Pg. 38, Ls. 18-19; Pg. 39, Ls. 10-11; Pg. 40, Ls. 20-21; Pg. 66, Ln. 21). Hogan stated
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―I'd like to get my scrip renewed -- get a couple of month's worth, so I don't have to come back‖
(Pg. 41, Ls. 12-17). Hogan stated ―got a couple of grand here – it's yours if you can at least work
something out‖ (Pg. 54, Ls. 5-11). Steve Compton had unchecked access to untold blank
prescriptions from Lu-Ann Reyes that represented a clear and present danger to self and others,
now with possible ties to said ―buddy‖, assuming Hogan's name and address were even correct.
The DEA’s opportunity to catch Compton ―red-handed‖ may have been undermined by Dr. Celio
"confronting Steve Compton about Compton's stealing Dr. Celio's prescription pad and writing
prescriptions" (See trial transcript, Pg.428, Ls. 21-23 and exhibit 104, Pg. 2, Ls. 3-6) and placing
Compton in drug rehab (Trial transcript, Pg. 247, Ls. 22-24). Hogan acknowledged that he knew
Compton was ―in treatment‖ (Pg. 53, Ln. 20). After Dr. Celio raised concerns about addiction
potentials and agreed to prescribe refills, Hogan interjected and mentioned "party" (Pg. 44, Ln.
24 and Pg. 47, Ln. 3) and later stated that I'm not going to burn off my liver; they aren’t all going
to me; ―Kimmy‖ (girlfriend) will take a couple and whoever in Dallas will get a couple‖ (Pg. 52,
Ls. 23-25) which further raised the suspicion that ―Kimmy‖ and ―others‖ meant Compton was
involved. Hogan stated that ―I was hoping maybe you could write me three‖ (Pg. 47, Ls. 18-19;
Pg. 52, Ln. 4). Hogan stated ―I gotta go out of town, probably Saturday. I probably won't be
back this way for probably until about the middle of June, in about three weeks‖ (Pg. 47, Ls. 14-
18). Dr. Celio made no mention to Hogan that Steve Compton was under investigation during
the May 25, 2000 encounters (Above facts to 5-25-2000 cafe cited in doc. # 495-2, Pgs. 68 -73).
Hogan followed up on May, 25, 2000. The conversation was taped by the DEA (Exhibit 28;
Govs. 107C). To mitigate Hogan altering the refills, Dr. Celio stated ―It’s got to be the same pen.
That's why I've gotta bring the pen out that I use, because anything that deviates on this is, you
know‖ (Pg. 4, Ls. 9-11). It would be premature for Dr. Celio to discuss inappropriate distribution
of medication and Compton's possible involvement during this May 25, 2000 encounter before
writing any refills or excepting any money even though owed. Dr. Celio wrote two refills, one
for ―fifty right now‖ (Pg. 5, Ln. 3; Govs. exhibit 1) and another fifty post-dated on June 5, 2000
(Pg. 5, Ls. 13-14) that Dr. Celio handed Hogan. Hogan then persisted, not Dr. Celio, by stating
―In case I can't get back in, could we get a couple more‖ (Pg. 5, Ls. 26-27) and (Pg. 6, Ln. 3) and
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I got a couple grand, I don't want to put it back in the bank‖ (Pg. 6, Ls. 5-6). Dr. Celio wrote a
third refill script on 06/15‖ (Pg. 6, Ls. 12-13; Govs. Exhibit 3) and rewrote the second script
from the 5th to the 3rd of June. To mitigate Hogan tampering with the scripts, Dr. Celio stated
―They're very specific with these – you can't deviate, they'll call – It's one that they have to send
into the DEA; Keep it on file I mean‖ (Pg. 7, Ls. 19-22). Hogan stated ―Well, is Stevie being
straight with me‖ (Pg. 9, Ln. 27) followed by ―He's told me ten bucks a pill (Pg. 10, Ls. 2). Dr.
Celio followed stating ―That's a hundred and fifty of em ... if you wanna look at it as a tip, that's
fine. I'm not gonna require it, alright. Cause this way I am not held to any unethical‖ (Pg. 11,
Ls. 17-21). Dr. Celio interjected a "tip" response to Hogan interjecting that Compton told him its
ten bucks a pill. Hogan then mentions Kimmy stating if he ―can get something for her‖ (Pg. 19,
Ls. 25-27)? The taped conversation between Dr. Celio and Hogan bantered back and forth and
had numerous portions that skipped (Listen to exhibit soundtrack under skipping) lending doubt
as to parts stated or intended. However, in response, Dr. Celio stated ―that is percocet‖ (Pg. 20,
Ln. 7) -- ―That is one hundred and fifty‖ (Pg. 20, Ls. 16-17) and that ―scripts have to be in your
name‖ (Pg. 20, Ln. 24) -- that ―you already got‖ (Pg. 20, Ln. 30) and -- ―That's the best that l can
do‖ (Pg. 21, Ln. 4). Hogan already had, in hand, a ready-to-fill script for May 25, 2000, and two
refills dated June 3 and June 15, 2000. Hogan stated ―l want these for me, but l don't wanna
share this with her‖ (Pg. 22, Ls. 3-4). Instead of Dr. Celio writing a script for Kimmy, Dr. Celio
took back the June 3rd 2000 script of fifty from Hogan and rewrote one for sixty on June 1st, 2000
(Pg. 24, Ln. 22). Hogan previously stated at the cafe that he would be leaving Saturday May
27th, 2000 (Exhibit 27; Govs. 106E, Pg. 47, Ls. 14-15, also exhibit 28, Pg. 8, Ln. 7-9) and wanted
the scripts previously written for him. By Dr. Celio taking back the third script and post-dating
another in its exchange, but still after Hogan departed, served only to foil or make the
―kimmy‖issue mute. Hogan then interjected ―Well would you want to write one for me for July
1, and then I don't have to come back and bug you‖ (Pg. 28, Ls. 8-10). Dr. Celio made the last
and forth refill, offset 15 days later, on June 30, 2000 (Pg. 29. Ln. 28) for fifty (Pg. 30, Ln. 6)
(The 5-25-2000 taped facts outside the office stated herein were cited in doc. # 495-2, Pgs. 73-
79).
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On July 18, 2000, Hogan's called and requested to meet Dr. Celio at the Sports cafe the
following day (Govs. Bates 008969, or exhibit 28A, Pg. 7, Ln. 21). The July 19, 2000 cafe
encounter was taped (Exhibit 29, Govs. 109E). Dr. Celio asked probing questions and made
disturbing statements about Steve Compton pretending that it had recently came to his attention,
and the DEA, that Steve was doing, or may be doing, something criminal after Hogan's last visit
that could now jeopardize both of them; Specifically if ―pills‖ got to Steve. Dr. Celio stated
Compton ―went out of his way to write scripts on his own‖ (Pg. 141, Ls. 12-19). Dr. Celio stated
that Steve had ―lied and he brought you in and under a different motive‖ (Pg. 152, Ls. 13-15).
Dr. Celio stated that ―if something's gotten to Steve from the passing, then we're not‖ (Pg. 151,
Ls. 15-16) and that ―I need to be confidential with you because you got sucked into this and I
need to know how far you got sucked into this‖ (Pg 152. Ls. 22-25). Dr. Celio stated that
allegedly he learned from someone’s boss at Bar None about the DEA investigating Compton
(Pg. 153, Ls. 16-23). Dr. Celio further stated that a pharmacy called saying ―Did you write this
for him followed by ―I never wrote that quantity ever, and I have not wrote that in that period of
time" (Pg. 150, Ls. 28 to Pg. 151, Ln. 4) (The incident concerning the pharmacy calling
happened on February 18, 2000, but that specific date was not revealed to Hogan).
Hogan denied given any pills to Compton throughout the meeting (Pg. 141, Ls. 25-26; Pg.
144, Ln. 9; Pg.145, Ls. 20-22; Pg. 146, Ls. 8-9; Pg. 149, Ls. 24-29; Pg. 151, Ls. 14-17; Pg. 158,
Ls. 9-11; Pg. 161, Ls. 21-22; Pg. 162, Ln. 19; and Pg. 166, Ln. 13). Instead, Hogan asked, on
several occasions, if the books where okay and if we were covered (Pg. 145, Ls. 23-24; Pg. 151,
Ln. 8; Pg. 159, Ls. 7-8; Pg. 161, Ls. 17-18; Pg. 162, Ls. 16-17; Pg. 162, Ls. 20-21; and Pg. 166,
Ls. 4-6). Hogan persisted and stated that he ―liked to keep doing it‖ (Pg. 164, Ls. 11). Instead of
writing another prescription, Dr. Celio stalled and emphasized that:
1) ―The use of these medications gotta be legit for the person that it’s prescribed to‖ (Pg. 141,
Ls. 13-14);
2) ―I don’t want you to get hooked or addicted because I’m doing you a disservice / disfavor
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that’s not medically appropriate‖ (Pg. 151, Ls. 21-25);
3) ―It has to be reasonable and for a condition that justifies it medical-legally‖ -- ―I can only
do office visits for a certain price‖ -- ―I cannot accept above and beyond for it, because that is, in
a way, not legal either -- or proper -- I'll do only proper‖ (Pg. 148, Ln. 13-26);
4) ―You said you party -- your hooked -- you get high on it -- I can’t let you do that either‖
(Pg. 164, Ls. 28 to Pg. 165, Ln. 1); and;
5) ―It still needs to be reasonable and ethical -- I want to do things that are legit and not
something that I know is not legit‖ (Pg. 167, Ls. 2-3).
Before the meeting ended, Dr. Celio stated to Hogan ―you cannot take my script there and
write it‖ (Pg. 170, Ls. 25-1) after Hogan requested scripting alternatives. This was Dr. Celio’s
main concern and fear that materialized after numerous forgeries were discovered on February
18 to 21, 2000 that Hogan re-raised with Compton during the May 25, 2000 surprise meeting.
Later that afternoon, Hogan called Dr. Celio stating ―I gotta get out on that plane in the morning
early. If we can do something‖ (Pg. 1, Ls. 19-20). Dr. Celio stated ―Well, the other thing is
come to the office‖ (See exhibit 33, Pg. 1, Ls. 21-22, governments 110C).
Hogan followed up at Dr Celio's office. The encounter was taped by agents for the
government (See exhibit 29A) (Transcript provided by Dr. Celio's medical board). During the
office visit, Dr. Celio spoke softly conveying to Hogan ―they know‖ (Pg. 3, Ln. 12) -- and that
―they will have nothing to do with Steve, nothing to do with you‖ (Pg. 4, Ls. 10-11). Dr. Celio
showed Hogan his chart and stated ―why did you put that‖ (Pg. 3, Ln. 13). Hogan stated ―Is
there any way we can, by pass it here at all‖-- Dr. Celio responded, ―Not at all‖ (Pg. 7, Ls. 15-
16). Before Hogan left the exam-room Hogan stated ―but why didn’t they say anything the first
time I was here‖ (Pg. 7, Ls. 22-23). Dr. Celio fictitiously shifted the blame to the office staff.
But, by contract, ―AFHC shall not in any manner practice medicine or dictate the treatment of
patient care‖ (See exhibit 38, Pg. 3, last paragraph). Donna testified that ―all of the patients and
the patient care was in his hands‖ (Dr. Celio's) (Trial transcript, Pg. 385, Ls. 21-22).
13
Before Hogan left the office, Dr. Celio confronted him in front of the staff. Specifically, Dr.
Celio stated ―We have had problems with Steve, and I just wanted to bring this out in the open,
so everybody's involved‖ (Exhibit 29, Pg. 9, Ls. 6-7). Dr. Celio followed stating that “I am just
looking at this from the past and (you) were referred from Steve Compton, these pills, and I'm
just telling you he's basically been under investigation; these pills in no way got to Steve"
(Exhibit 30, Pg. 1, Ls. 5-9 and soundtrack G-2)? Hogan stated ―No, no way. I’ve taken them I
swear‖ (Pg. 9, Ln. 16). Dr. Celio followed this stating that "Because of things that Steve has
done; with, myself, my office, my license, to these people that he has put them through" (Exhibit
29A, Pg. 10, Ls. 5-8). Donna Lapetina followed stating that "Doc Celio just wanted to let and
you know up front, because, it’s a concern of ours for a while" (Exhibit 29A, Pg. 10, Ls. 18-20).
This documents that Dr. Celio set up Hogan ahead of time by telling Donna and staff about
Hogan being referred by Steve.
The office-visit would have ended if not for Hogan requesting and following Dr. Celio to
break a one hundred dollar bill (Exhibit 29A, Pg. 11, Ln. 16 to Pg. 12, Ln. 2, versus the certified
corrected version where Hogan asks Dr. Celio ―Can I go with you‖, exhibit 30, Pg. 2, Ls. 13-18 -
- soundtrack G-2). No further contact occurred with Hogan (Trial transcript, Pg. 369, Ls. 1-2).
The medical office was raided five months later on December 11, 2000.
Facts Related To Counsel Ineffective Assistance
Counsel failed to present any exculpatory evidence, tapes and defense witnesses, including
Dr. Celio. In particular, defense counsel failed to present the government’s 7-19-2000 final tape
(Exhibit 29A) that has Dr. Celio confronting Hogan in front of the office staff completely
avoided by the prosecution at trial. In addition, counsel failed to present the May 24, 2000, July
18, 2000 and the July 19, 2000 café tapes (Exhibits 21, 22, 29 and 29A).
Counsel additionally failed to present physical evidence in support (See exhibits 35, 36, 40,
14
41, 42 & 43) along with taped interviews or witnesses, of Wendy Iacovette (Exhibit 15, Pg. 5, Ln
18 to Pg. 6, Ln. 20, Soundtrack B); Pam Carver (Exhibit 46A, Pg. 3, Ln. 14 to Pg. 4, Ln. 1,
Soundtrack J); Ron Taylor (Soundtrack K); Chuck Teeples (Exhibit 48, Pg. 3, Ln. 16 to Pg. 6,
Ln. 6, Soundtrack L) and a taped confession by the Steve Compton (Exhibit 19C, Pg. 32, Ln. 15
to Pg. 33, Ln. 1, Soundtracks D1 and D2) submitted to defense counsel, that clearly
demonstrated that Dr. Celio took no part in illegal distribution of controlled substances with the
co-defendants.
Counsel requested additional time whether to present any evidence, or not, whether to call, or
not, Dr. Celio (Trial transcript, Pg. 458, Ls. 20-21), or whether, or not, to call Steve Compton
(Pg. 459, Ls. 8-9). The court followed commenting that "you're required to think of a strategy
before trial"; "You can't do everything by the seat of your pants" (Pg. 459, Ls. 11-13). Dr.
Celio's counsel was so ill-prepared that counsel had to rely on the prosecution to replay certain
taped passages of their clipped presentation. Counsel stated ―Maybe we can impose on the good
grace of agent Fiore to assist us‖ (Pg. 256, Ls. 4-5; and Pg. 258, Ls. 11-12), afterwords
stating ―Well, let's see what they have‖ (Pg. 258, Ln. 20). The following day, at trial, instead of
presenting defendant's exculpatory tapes, counsel again relied on the prosecution to replay a
section on their limited, clipped and formatted tapes. Counsel stated ―Whatever the Government
has, we'll listen to‖ (Pg. 289, Ls. 24-25). Defense counsel, in final closing arguments, simply
stated "there is a lot of things missing the Government had that they controlled that aren't before
you" (Trial transcript, Pg. 525, Ls. 7-8).
Counsel initially raised an entrapment defense (Pg. 463, Ln 2) then argued for time to
consider this defense overnight (Pg. 470, Ln. 3 to Pg. 474, Ln. 6), after vacillating on whether to
call Dr. Celio (Pg. 461, Ln. 19), including Steve Compton (Pg. 461, Ls. 6-7). Counsel then
declined not to present any evidence (Pg. 466, Ln. 21). Despite defense counsel being granted
the time to consider an overnight entrapment defense, counsel declined to pursue an entrapment
defense (Pg. 485, Ln. 7). Counsel had previously stated that this case "will be done in two days"
(Pg. 132, Ln. 3) (Doc. # 495, Pgs. 79-85).
15
Counsel additionally failed to contest inconsistencies and false statements made by two
witnesses for the prosecution that own, billed and managed the administrative office that Dr.
Celio worked at ((Doc. # 495-1, issues A through E (Donna) and issues A through D (Karen) that
follow, pages 26-36 in doc. #495-1)). In particular, counsel failed to broach the subject of tainted
testimony from these witnesses, one of whom (Donna Lapetina) was read her rights, admitted to
being addicted (Exhibit 61 & 61A) and accused of ordering narcotics by co-defendant (See Lu-
Ann Reyes exhibit 10 and Reyes's PSI report, Pg. 7, # 34, and exhibit 62A with Donna's name as
placing the order December 23, 1998). Dr. Celio stopped Donna from ordering any further
shipments of Nubain from GIV on November 29, 2000 before the office was raided (See exhibit
62). On September 29, 2007, the FBI sent out a letter to patient's of Dr. Celio stating that it had
seized their medical records on December 11, 2000 due to a "Health Care Fraud investigation",
not prescription fraud (See exhibit 60). Karen was also part owner of the billing company that
billed the insurance for AFHC as she testified at trial (Pg. 431, Ls. 12-21).
Donna misinformed the court when she testified when and why Steve Compton’s was
removed from the practice in 1999 (Trial transcript, Pg. 393, Ln. 3). On direct-exam Donna
stated ―It had come to our knowledge that he had been passing scripts, prescriptions, for
painkillers…―We were -- the practice was contacted by a pharmacy that they had a prescription
that did not appear correct. They had faxed us the prescription. And to make a long story short,
it turned out that the prescription was not written by the doctor or signed by the doctor. And as it
turned out, there were several of these prescriptions that had been written‖…―Steve Compton
was asked to leave the practice‖… ―we had notified the police, the DEA, that this had
happened‖ (Trial transcript Pg. 393, Ln. 6-17). The fax referred to by Donna came in on
February 18, 2000 from Pharmor pharmacy (Exhibit 7 – fax dated 2-18-2000). File report
prepared by the DEA (Dated 6-25-2000 – MK-99-2041 # 000663 (Exhibit 63), has Donna calling
D/I Pickerell at Dr. Celio’s request during the week of February 28, 2000 that stated Steve
Compton was ―found forging scripts‖ and reported that ―Dr. Celio discharged Steve as a patient
in Sept 1999‖ (Critical point on issue to the case). Further corroborating evidence provided by
16
Donna is found in her 12-11-2000 DEA statement that – ―Steve Compton, a former patient at All
Family, is suspected of having stolen a prescription pad from Celio several months ago‖ (Bates
000384). Jaster also stated Compton was ―a former patient‖ when the DEA received the fax (See
Trial transcript, Pg. 170, Ln. 17). However, Donna affirmatively responded to the prosecution’s
question that ―Up until this point, when you learned about this incident involving Steve
Compton, do you know whether for a fact Dr. Celio had been writing prescriptions for Lorcet for
Steve Compton‖; Donna stated ―Yes‖ (Pg. 394, ls. 19-23). By Donna falsely testifying that
Compton was dismissed in 1999 when the forgeries were discovered (Reaffirmed in Donna’s
cross exam (Pg. 429, Ls. 7-12), the prosecution wrongfully capitalized on, and advocated that,
Dr. Celio ―still continued to see Compton, and all of these things were still going on‖. The
prosecution, furthermore, was able to inappropriately advocate at trial and during closing that a
―commission was paid and that Dr. Celio was Compton’s ―source‖ instead of Steve Compton’s
past doctor.
Claims Submitted in Movant's 2255 Motion Doc 495-1
The claims and supporting issues cited in Movant's 2255 Motion (Doc. # 495-1), along with,
in part, legal cases in support for brevity, were as follows:
Claim 1) Withholding of Evidence by the prosecution (14 issues, Pgs. 9-18):
A) Compton's previously know forgeries admitted by agent Brannon during Reyes interview
(Exhibit 10, Pg. 26, Ls. 1-4);
B) Drug movement report pulled by Gierwatoski referenced in DEA 209A-DN-58779;
C) ―Health care fraud‖ report concerning Lapetina and Lutz referenced by agent Jaster at trial
(Pg. 174, Ls. 7-10) and supported by document referencing such (See exhibit 60);
17
D) Missing taped transcripts 009003 to 009097 and 009107 to 009121 not disclosed to
Movant;
E) Tape conversation of Compton 5-24-2000 (referenced exhibit 21, or bates # 009086)
stating that Compton would call first, after Dr. Celio requested such, before the meeting on 5-25-
2000 whereby his ―friend‖ would be bringing money to pay Celio for stock;
F) Missing tape dialog, 4 minutes 5-25-2000 cafe, 2 minutes 5-25-2000 car tape shown to
exist by the discrepancy between what the Appeals Court received on direct and agent Fiore's
time logs (50:54 verses 55 minutes and 30: 52 verses 35 minutes respectively) and Jaster's trial
testimony of dialog that ―Dr. Celio told him that he didn't have his prescription pad, and he
would have to go back to the office‖ (Pg. 216, Ls. 6-8) that do not appear on any transcript
handed over to the defense.
G) Tape transcripts that the DEA or FBI had with Compton that any normal and prudent agent
would have taken;
H) Compton's medical records from Dr. (B's) office that any prudent agent would have
obtained;
I) Fax report sent by AFHC that Jaster testified that he received from the office (Pg. 169, Ln.
23);
J) AFHC's hard drive computer and medical records on Compton and (S). Lapetina stated
that ―AFHC had a patient file for Doug (S) and his name was also in the computer‖ (DEA
document 209A-DN- 58779, bates # 000380 and Donna Lapetina statement, 12-21-2000, Pg. 2
Ls. 13-15). Agents ―were authorized to seize computers storing or capable of storing information
and remove them along with peripheral devices‖ (Bates 000777 government’s document).
18
K) Reyes and Lapetina's deposition on December 28, 1999 (Case 99 CV 1776, Div 10);
L) Any and all DEA taped phone conversation the DEA had with AFHC (Lapetina / Celio)
known to have occurred;
M) Agent Jaster's contemporaneous notes taken during Celio's search and seizure
Interview, as testified at trial (Pg. 246, Ln. 21 to pg. 247, Ln. 1);
N) FBI taped transcript taken during Celio's search and seizure interview that in U.S. v. Sneed,
34 F.3d 1570, 1581 (10 Cir. 1994) is ―a general policy of the FBI to tape conversations‖.
Movant presented, in part but not inclusive, legal argument that a ―prosecutor has a duty
constitutionally to disclosed exculpatory evidence it possesses favorable to the accuse‖ Brady v.
Maryland, 373 U.S. 83, 87; 83 S.Ct. 1194, 1996; 10 L.Ed.2d 215, 218 (1963); U.S. v. Deluna, 10
F.3d 1529, 1534 (10th Cir. 1993); U.S. v. Sneed 34 F.3d 1570, 1581 (10th Cir. 1994). A ―Brady
violation occurs when nondisclosure was so serious that there is reasonable probability that the
suppressed evidence would have produced a different verdict. ―Materiality of exculpatory
evidence potential impact should be weighed in light of whole record, which might suffice jury‖
U.S. v. Robinson, 39 F.3d 1115 (10th Cir. 1994) (Doc. # 495-1, Pg. 16, Ln. 17 to Pg. 17, Ln. 8).
Claim 2) Misrepresentation and false testimony that prejudice Dr. Celio (* Severe prejudice) (27
issues raised, doc. # 495-1, Pgs. 18-38).
Hogan misrepresented the facts at trial:
A) * Hogan's misrepresented the taped conversation Celio had with Hogan in front of office
staff on 7-19-2000 by stating that ―he wanted them to know that I was okay, that, you know, not
to worry about me, that type of thing‖ (Pgs. 356, Ln. 23 to 357, Ln. 9) (Exhibit 29A, Pgs. 9-10).
19
B) Hogan's statement about not seeing his chart again ―why did you put that‖ (Exhibit 29A,
Pg. 3, Ln. 12).
C) * Hogan's testimony that 5-25-2000 cafe taped conversation had nothing mentioned
dealing with the case prior to Dr. Celio arriving (Pg. 332, Ls. 7-12). In rebuttal see exhibit 27, or
Govs. 106E, Pg. 3, Ls. 6-14 about Compton telling Hogan what to say and how he ―hooked up
his side‖.
D) * Hogan's testimony denying Compton owned a debt to Dr. Celio (Pg. 369, Ls. 3-17). Dr.
Celio stated to Hogan ―He (Steve) owes me the car, the Honda (Exhibit 25, Pg. 147, Ls. 13-16).
E) Hogan's testimony denying Compton had a drug problem (Pg. 370, Ln. 370, Ln. 25 to
371, Ln. 4). hogan stated ― I know he's in treatment‖ (Govs. 106E, Pg. 53, Ls. 20-21).
F) * Hogan's testimony that Dr. Celio requested and therefore walked with him after Hogan's
7-19-2000 office visit confrontation which would have ended Hogan's engagement with Dr.
Celio (Tape mis-transcribed). The correct version has Hogan stating ―Can I go with you‖
(Exhibit 30, Pg.12, Ln. 2).
Jaster misrepresented the facts at trial:
A) *Jaster misrepresented the taped conversation Celio had with Hogan in front of office staff
7-19-2000. Jaster stated that ―He was talking about the chart and Compton and the fact that he
couldn't give any prescriptions to him‖ (Pg. 231, Ls. 7-13). In rebuttal, see exhibit 29A, Pg. 9-
10).
B) * Testimony of not being aware that Compton was arrested for a second prescription fraud
felony against another physician by the state (02-CR-2419) when Jaster work in the same office
20
with the arresting DEA agent (Barnhill) and that ― Jaster ―followed through all the way (Pg. 533,
Ls. 22-24).
D) * Testimony that the DEA, via Compton, didn't ask Dr. Celio on 5-11-2000 to wright out a
prescription that day. (Pg. 254, Ls. 5-7). On 5-11-2000 the taped conversation has Compton
stating ―Will you writ him a script‖ (Govs. 101C, Pg. 2, Ls. 4-6).
E) * Testimony that taped interviews are not conducted by Jaster's office (Pg. 245, Ln. 6-11
and Pg. 246, Ls. 4-9). Reyes' DEA interview of 3-2-1999 was taped (Exhibit 10).
F) * Jaster's interpretation of the Control Substance Act in reference to a doctor not going
outside the scope of professional practice to ―protect the public‖ (Pg. 151, Ls. 9-17).
G) Testimony that prescription drugs are illicit for ―the way they make me feel‖ (Pg. 167,
Ls. 9-14).
H) * Jaster misinformed the court comparing the quality of the May 25, 2000 to the May 19,
2000 cafe tapes (Listen to exhibit 32 for comparison of 7-19 to 5-25, 2000 cafe tapes.
J) * Jaster misinformed the court stating that the tapes were accurate – ―no discrepancies‖
(Pg. 179, Ln. 19 to Pg. 180, Ln. 1) (Comparison exhibit 30 verses 30A).
K) * Jaster misinformed the court by testimony that Dr Celio was therefore involved with
Compton's forgeries (Pg. 169, L. 25 to Pg. 171, Ln. 8) (See taped statement of facts refuting
Jaster's testimony and exhibit 19 Compton's confession, Pg. 45, Ls. 14-20).
L) * Jaster outright misinformed and falsified to the court that Dr. Celio ―told us that it was
not his voice on the tape‖ (Pg. 243, Ls. 18-19) (See misrepresentation and facts against in under
Karen (A) that follows).
21
Donna Lapetina misinformed and falsified the facts to the court:
A) * Donna falsified to the court when she testified when and why Compton was removed
from the practice in 1999 when the forgeries were discovered. On direct-exam Donna stated ―It
had come to our knowledge that he had been passing scripts, prescriptions, for painkillers… ―We
were -- the practice was contacted by a pharmacy that they had a prescription that did not appear
correct. They had faxed us the prescription. And to make a long story short, it turned out that
the prescription was not written by the doctor or signed by the doctor. And as it turned out, there
were several of these prescriptions that had been written‖… ―Steve Compton was asked to leave
the practice‖… ―we had notified the police, the DEA, that this had happened‖ (Trial transcript
pg. 393, Ln. 6-17). The fax referred to came in on February 18, 2000 from Pharmor pharmacy
(Exhibit 5 – fax dated 2-18-2000). File report prepared by the DEA (Dated 6-25-2000 – MK-99-
2041 # 000663 (Exhibit 63), has Donna calling D/I Pickerell, at Dr. Celio’s request, during the
week of February 28, 2000 stating that Steve Compton was ―found forging scripts‖ and reporting
that ―Dr. Celio discharged Steve as a patient in Sept 1999‖ (Critical point on issue to the case).
Further corroborating evidence that Compton was released by Dr. Celio months before forgeries
were discovered is found in Donna's 12-11-2000 DEA statement – ―Steve Compton, a former
patient at All Family, is suspected of having stolen a prescription pad from Celio several months
ago‖ (Bates 000384). Jaster also stated during trial that Compton was ―a former patient‖ when
the DEA received the fax (Trial transcript, Pg. 170, Ln. 17).
B) * Donna falsified to the court that after she learned about Compton's forgeries that Dr.
Celio had been writing prescriptions for Compton (Pg. 394, Ls. 19-23) (Same argument and
evidence cited in rebuttal presented above).
C) * Donna misinformed the court when she testified that she told or prohibited Dr. Celio
providing care or prescriptions for Compton (Pg. 397, Ln. 25, to Pg. 398, Ln. 1-7). In rebuttal
see exhibit 38, AFHC contract prohibiting such and Lapetina's 302's that state that ―she cannot
22
direct in anyway the medical decision making of the practice‖ (Bates 000382 and 000386).
D) * Donna misinformed the court that she ―directly confronted Dr. Celio about his
prescribing practice for narcotics‖ (Pg. 426, Ln. 24 to Pg. 427, Ln. 9) (Same reason in rebuttal as
referenced above).
Karen Lutz misinformed and falsified to the court:
A) * Karen Lutz falsified her testimony to the court about hearing a ―not my voice‖ statement
that Dr. Celio allegedly made when interviewed by the DEA/FBI during the search and seizure of
AFHC (Pg, 437, Ls. 12-19). Dr. Celio’s detective briefly confronted Karen Lutz outside the
courtroom. Karen testified that she didn't know if I was even supposed to be talking to him (Pg.
441, Ls. 20-21). Karen stated to Daril that she ―didn't remember the tape‖ (Pg. 441, Ln. 9).
Karen testified on the stand that she ―stopped talking‖ to detective Cinquanta ―when Donna and
Bob came in‖ (Pg. 444, Ln. 1) cutting short a critical interview. On the stand, Karen made it
sound that she misunderstood which tape Daril was talking about. Nowhere was this alleged
―not my voice‖ statement documented by the agents or Karen in their 302 discovery (See trial
transcript Pg. 276, Ls. 15-16). Specifically, the prosecution stated that:
1) ―The FBI agent looked on his computer and looked in general in his file – to see if there was
a report that he did, and we couldn't find one‖ (Pg. 273, Ls. 14-16);
2) ―The defendant in fact denied that that was his voice on the "phone", denied any involvement
in this case‖ (Pg. 272, Ls. 21-22);
3) ―Karen Lutz, who is a witness, has always been known to the defendant and has always been
available to be interviewed. I don't know that they ever tried to interview her or not, but she
heard this as well‖ (Pg. 274,Ls. 13-17), and;
4) Had counsel ―interviewed Karen Lutz, they would have discovered that "Karen Lutz is
prepared to say she directly confronted the defendant about his denial that it was his voice on the
23
tape‖ (Pg. 275, Ls. 1-3).
Karen’s whereabouts were not disclosed to counsel before trial. This preventing the defense
from effectively interviewing Karen outside the courtroom for impeachment purposes (Pg. 278,
Ln. 18 to 279, Ln. 5). Defense counsel stated that ―One, I have Karen Lutz's 302s as well. There
is no suggestion in these that she heard the statement, was present when any statement was made,
anything close to that. We did try to interview Karen Lutz, and we couldn't find her‖ (Pg. 275,
Ls. 9-14). We interviewed Donna Lapetina, and I have the tape report, the interview of that.
Nothing about this came up -- They're trying to show he's a liar -- because he knows he did
something wrong‖ (Pg. 275, Ls. 13-23). When the Court asked the prosecution ―Did you give an
address" to defense counsel, she stated, ―Probably not‖ (Pg. 279, Ls. 4-5).
Instead of Dr. Celio's alleged voice denial occurring during an interview with agents that
Karen Lutz allegedly overheard, Karen couldn't keep their story straight. The prosecutor stated,
previous to Karen's testimony, that "Karen Lutz is prepared to say she directly confronted the
defendant about his denial that it was his voice on the tape‖ (Pg. 275, Ls. 1-3). The prosecution
also contradicted Jaster's prior testimony stating that when the prosecutor stated that ―The
defendant in fact denied that that was his voice ―on the phone", denied any involvement in this
case‖ (Pg. 272, Ls. 21-22).
On direct exam the prosecution asked Karen if she overhead ―the investigating agents play
tapes, tape-recordings for Dr. Celio‖. Karen stated that ―There -- there was one, and Dr. Celio
kept saying that wasn't his voice on the tape‖ (Trial transcript, Pg. 437, Ls. 15-19). The
prosecution asked Karen -- ―After the execution of the search warrant, did you have an
opportunity to talk to Dr. Celio about the investigation‖, Karen stated that ―Dr. Celio said he was
doing a reverse sting and that she was ―frustrated‖ (Pg. 438, Ls. 6-13) and not that "Karen Lutz is
prepared to say she directly confronted the defendant about his denial that it was his voice on the
tape‖ (Pg. 275, Ls. 1-3).
24
The prosecution asked Karen ―When you arrived at court today, did Mr. Cinquanta ask you
some questions about this incident, about the playing of tapes for Dr. Celio?...―What did you say
to him‖? Karen stated, ―I told him that that was a long time ago. I couldn't remember exactly,
but if I heard the tape, I would probably recognize it (Pg. 437, Ln. 23 to 438, Ln. 5).
When defense counsel asked Karen on cross-exam, ―Did Mr. Cinquanta specifically ask you
if you remember Dr. Celio ever saying that's not me on the tape‖ (Pg. 444, Ls. 23-25), Karen
stated that "I couldn't remember, it was like five years ago, but if I heard it or had some kind of
clue of what it said, you know, if I would have heard it, I would have told him‖ (Pg. 445, Ls. 12-
14). When Defense counsel followed with ―You remember the next question he asked you was,
did you hear Dr. Celio say that's not me on the tape‖, Karen stated ―He did not ask me that‖ (Pg.
445, Ls. 15-17). Karen directly contradicts her previous statement above whereby she
acknowledges being asked about a tape by Mr. Cinquanta when she states "I didn't remember the
tape" and "I couldn't remember, it was like five years ago". Previously when the prosecution
asked Karen if she overhead ―the investigating agents play tapes, tape-recordings for Dr. Celio‖.
Karen stated that ―There -- there was one, and Dr. Celio kept saying that wasn't his voice on the
tape‖ (Trial transcript, Pg. 437, Ls. 15-19). Karen also stated on cross-exam that ―there was a lot
of people in that room‖... There was like 20 of them‖ (Pg. 441, Ls. 10-11). The room referred
by Karen was Exam Room one, an 8 ft. by 10-ft. room. Why, or how could 20 people place
themselves into one small room, even if they could, for an interview? The door was closed and
agent Jaster testified that agent Fiore was present during the attempted interview (Pg. 304, Ln.
3). Why use Karen when FBI agent Fiore was present. Agent Jaster, when questioned by the
prosecution, stated that there were eight or probably ten law-enforcement people in the ―office‖.
Jaster’s trial testimony places Lutz in the reception area during the December search… ―And
there is a picture of Karen Lutz, standing on -- behind the counter‖ (Pg. 235, Ls. 11-13).
On further cross-exam defense asked, ―So who played the tape for you‖? Karen stated, ―I
don’t even remember‖. Defense asked, ―No, I mean, today‖? Karen stated, ―Nobody’s played it
25
for me today‖. Defense stated, ―Oh, because when you saw Mr. Cinquanta, which would have
been at about 1:15 today, you told him you don’t remember, but if you heard the tape, it might
refresh your recollection, right‖? – Karen stated, ―Well, for one thing, I didn’t know if I was
even supposed to be talking to him. He kind of cornered me out there‖ (Pg. 441, Ls. 4-21). A
tape played for Karen, not the one she overheard at the search and seizure -- a tape she admits
hearing at the FBI office, therefore, not the tape played during the raid! This is a positive – yes
statement of affirmation, with the excuse of – ―well I didn’t know I was supposed to be talking to
him‖. The prosecution was present in court that morning when the defense requested their desire
to interview Lutz. Dr. Celio’s detective asked Lutz the question of a tape being played during the
search warrant and if Dr. Celio denied the voice on that tape. Karen couldn’t possible remember
a not my voice statement allegedly made by Dr. Celio, stated on direct-exam, if she can’t
remember contexts of a tape played during the search and seizure unless she reheard it, or was
clued in.
Defense continued and asked Karen ―What was the exact question you remember? Karen
responded, ―He was just talking about a tape, and that confused me, because I wasn’t sure which
one he was talking about. Well, how many tapes have you heard played in this case? I haven’t –
today. Any time? I’ve heard one. And that one was the only tape you ever heard, and that was
in December of 2000, correct? No. That wasn’t in 2000. I heard the one in 2000, and I heard
another one when I was at the FBI’s office (Pg. 444, Ls. 9-19). Karen contradicts her story from
hearing only one, to two—so she could state she ―wasn’t sure which one he (Cinquanta) was
talking about‖. If Karen can’t remember or needs some kind of clue of what it said about a tape
played when the ―bust‖ came in – the one in December, how can she truly have heard the alleged
―not my voice statement‖ that she earlier stated she did on direct-exam for the prosecution? The
question posed by Dr. Celio’s detective earlier in the hallways, re-posed on cross exam, is the
same question posed by the prosecution on Lutz’s direct-exam. On direct-exam, Lutz
remembers the tape enough to state overhearing an alleged not my voice, to not remembering the
tape when the bust occurred on cross-exam. On cross-exam, Lutz tries to deflect defenses line of
questioning by referring to a ―tape‖ also heard at the FBI’s office that otherwise Dr. Celio’s
26
detective confused her about. The problem with that argument is that Lutz admits, when
questioned by the prosecution, that she only heard one tape. Therefore, by Lutz stating she
cannot remember the ―tape‖ when the search warrant was executed, she otherwise alleges and
asserts that she heard Dr. Celio’s ―not my voice‖ statement at the FBI’s office. That would mean
that the search and seizure interview with Dr. Celio had to been taped. In U.S. v. Sneed, 34 F.3d
1570, 1581 (10th Cir. 1994), FBI agent Coffey stated ―that it is a general policy of the FBI to tape
conversations‖. Agent Fiore of the FBI was present. Therefore, a tape would, therefore, exist
rendering it discoverable and proving the actual statements made. This would be a material
decisive discovery violation as advocated. Lutz’s testimony was needed to dispute the defense
side of the case and for the prosecution to effectively use at trial and closing.
The prosecution, agent Jaster, and Karen Lutz presented Dr. Celio's ―not my voice
statement‖ at trial knowing that this would hamper the defense’s ability to effectively investigate
and dispute. This was intentional, and not a whimsical, fleeting moment of brilliant
enlightenment, but a prejudicial and orchestrated false-act directed to assassinate Dr. Celio’s
defense in front of the jury. The prosecution, in closing arguments, capitalized on this by stating
―And what kind of reverse sting is it when -- when the tapes recording you prescribing controlled
substances outside the course of professional practice are played for you, and you deny that it's
you? You say that it's not your voice‖ (Pg. 509, Ls. 17-20).
B) * Karen knowingly falsified to the court when she testified that she the ―Compton thing
happened before I started‖ (Pg. 438, Ls. 19-24) In rebuttal see Safeway pharmacy fax on March
18, 2000 (Exhibit 67, bates 007447) addressed to Karen's requesting verification signature on
Steve and Stacy Compton's script.
C) * Karen knowingly falsified to the court that ―before I started working there, there was
something about prescription pads being missing (Pg. 436, Ls. 17-20). In rebuttal same argument
in evidence stated above and testimony from Lutz that she was present December or October of
1999 (Pg. 432, Ls. 7-10).
27
D) * Karen falsified to the court about Hogan's referral status testifying that ―we had
discussion that he couldn't see this patient‖ after 5-18-2000 (Pg. 436, Ln. 12). In rebuttal, Lutz
contradicts her testimony from July to May and Lapetina's July testimony. Additionally,
nowhere in Lutz 302's is their mentioning Hogan's referral status.or that Dr. Celio couldn't see
this patient.
Movant presented, in part but not inclusive, legal argument in reference to misrepresentation
and false statement that Rule 60(b)(3) allows grounds for relief from a final judgment either by
fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an
opposing party. ―The dignity of the U.S. government will not permit the conviction of any
person on tainted testimony Mesareosh v. U.S. 352 U.S. 1, 1LE2d 1, 77 S. Ct 1 (1956). False
statements would be consider material if it is capable of influencing the tribunal on the issue
before it U.S. v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), It has been held
to be a denial of due process if a prosecutor knowingly allows false testimony to be used against
the accused Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935); Alcorta v.
Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed. 2d 9 (1957). 18 U.S.C. 1622 prohibits inducing, or
procuring another, to commit perjury U.S. v. Norris 300 U.S. 564, 574 (1934). Prosecutors
knowing use of false evidence violates due process regardless of whether the evidence goes to a
substantive issue or merely to a witness credibility State v. Massey, 235 F.3d 1259 (10th Cir.
2000), and improper and so prejudicial calling for a new trial, U.S. v. Ludwig, 508 F.2d 140 (10th
Cir. **** ) and even though defense counsel was also aware of the perjury and did not object
Demarco v. U.S. 928 F.2d 1074 (11 Cir. 1991) (Doc. # 495-1, Pg. 36, Ln. 5 to Pg. 37, Ln. 11).
Claim 3) Ineffective Assistance (34 issues with sub-parts to F, J and L issues presented) (Doc. #
495-1, Pgs. 38-48) (See section statement of facts presented in this brief for pertinent issues
raised and facts in support for ineffective assistance).
In addition to those cited, counsel was ineffective for: B) Not exposing inaccurate,
28
misleading, or false statements made by Hogan and Jaster listed above respectively under
misrepresentation; C) Not exposing or countering inaccurate, misleading, and false statements
made by Donna and Lutz listed above respectively under misrepresentation; D) Not cross-
examining Gierwatoski about the record he kept after the prosecution stated that ―it was unusual
for this pharmacy to keep a record of the particular prescribing practice of‖ (Pg. 456, Ls, 4-6)
when pharmacies must keep records of doctor's narcotic prescriptions for 2 years; I) Not calling
for more than one mistrial after objecting to numerous prosecution statements of misconduct
(Cited tenth Circuit, case 05-1330, Pg. 18, Ls. 6-8); J) Not challenging further statements of
prosecution misconduct during opening statements cited in argument under prosecution
misconduct issue 14, 22, 12, 13, 26 A,B,C, 21A, and 21C; K) Not calling for a mistrial
immediately after Jaster's testified alleging that Dr. Celio's denied his voice during the search and
seizure interview not in discovery; L) Not presenting motive for impeachment purposes to
Lapetina testimony concerning her self-admitted addiction (Exhibit 61), the DEA threatening to
indict her (Exhibit 9, Pg. 10, Ls. 13-14 and Ls. 18-19), and evidence of Dr. Celio's stopping her
illicit drug orders and self injections (Exhibit 62); M) Not challenging Dr. Celio's incarceration
status after five months of detention requested by Movant (Exhibit 89); N) Not challenging
Jaster's hearsay testimony about money borrowed (Pg. 293, Ls. 12-20); O) Not objecting or
calling for a mistrial based on alleged testimony of Lapetina's and Lutz's not found in their
respected 302 discovery; Q) Not presenting any evidence in favor of the defendant (Pg. 466, Ls.
19-21); R) Not presenting evidence of Dr. Celio's investigator making contact with the DEA and
investigating Reyes with possible ties to Compton (See exhibit 2 and 2A, and; S) By not
presenting AFHC's contract demonstrating Dr. Celio's autonomy about medical decision and
prescribing (Exhibit 38).
Movant presented, in part but not inclusive, legal argument to ineffective assistance by citing
that the Supreme Court has recognized that the right to counsel means little unless counsel
provides a defendant effective representation McMann v. Richardson, 397 U.S. 759 (1970).
Failure of counsel, whether appointed or retained, to be an effective advocate for the defendant
constitutes a basis to award a defendant a new trial Cuyler v. Sullivan, 446 U.S. 335 (1980).
29
Examples where relief might well be afforded include failure of counsel to present evidence
favorable to the accused, failure to challenge the admissibility of evidence presented and failure
to challenge prosecution misconduct. And, ineffective assistance of counsel can be raised in a
2255 appeal for the first time based on a two-prong argument Strickland v Washington, 466 US
668, 104 S Ct 2052, L Ed 2d 674 (1984) (Doc. # 491-1, Pg. 46, Ln. 14 to pg. 47, Ln. 3).
Claim 4) Prosecution Misconduct, 33 issues, supported by case law with sub-parts to 18, 21, 22,
26, and 30 (Doc. # 495-1, Pgs. 55-73), are raised in addition to thirteen original issues on direct
(Pgs. 46-55) in light of facts and evidence presented not on the record on direct appeal. The 33
specific misconduct issues that follow, in addition to the 13 misconduct issues raised on direct
appeal (Case # 05-1330), amounted to flagrant misconduct that severely prejudice the defendant.
The 13 original issues of prosecution misconduct were; 1) Other complains (Pg. 169, Ls. 11-
19); 2) Previous investigation involving Dr. Celio and some other people (Pg. 173, Ls. 4-20); 3)
Providing prescriptions to Stacy Compton (Pg. 175, Ls. 5-21; 4) Regarding Tim Murphy (Pg.
298, Ln. 13 to 300, Ln. 19); 5) Confronting Dr. Celio about his prescribing practice for narcotics
(Pg. 428, Ln. 11); 6) That it was unusual for this pharmacy to have kept a record of the
particular prescribing practice (Pg. 456, Ln. 12); 7) That this isn't the first time that Dr. Celio has
done this kind of thing (Pg. 497, Ln. 16 to 498, Ln. 12); 8) That Compton was a means that was
used to get into his source (Pg. 528, Ln. 6 to 529, Ln. 17; 9) Sharing the medication with Dr.
Celio... She was... convicted (Pg. 168, Ls. 1-7); 10) Heroin .. same class used to treat heroin
addicts (Pg. 137, Ls. 1-8); 11) Pure source of what is almost heroin than buying it on the street
(Pg. 526, Ls. 6-13); 12) Like Steve did for (S) in closing argument previously ruled off-limits
(Pg. 496, Ls. 17-18), and; 13) That I think you gave Doug that deal in closing that again was
ruled to be off-limits (Pg. 538, Ls. 16-18).
Pertinent issues presented in Movant's 2255 (Doc. # 495-1, Pgs. 55-73) were as follows:
14) The prosecution repeated her ―heroin‖ comparison to percocet during closing arguments
30
(Pg. 526, Ls. 12-13) after the Judge sustained it as over the top (Pg. 137, Ls. 1-4); 17) That there
must be ― a cover-up‖ (Pg. 233, Ls. 15-23); 18) The prosecution asking questions that ―Would
you have a problem with a patient being referred to AFHC by Compton‖ (Pg. 392, Ls. 7-18);
―You ever directly confront Dr. Celio about his prescribing practice for narcotic‖ (Pg. 427, Ln. 2
to 428, Ln. 9), and; ―Discussing with him the prescribing or dosing of controlled substances‖
(Pg. 451, Ls. 10-15); 20) That misconduct occurred when the prosecution advocating an
affidavit (Exhibit 20) on February 20, 1999 that had nothing to do with Compton but implied as
such (Pg. 306, Ln. 20 to Pg. 307, Ln. 13); 21) That misconduct occurred during the prosecutions
opening statements, contrary to the facts, that the ―officer was required to tip‖ (Pg. 134, Ln. 15);
that Hogan had to come ―one time as a patient in order to get a chart to justify such a huge
number of pills‖ (Pg. 136, Ls. 25-1); that Hogan's knee ―Doesn't really hurt‖ -- ―It's not really
bothering me‖ (Pg. 136, Ls. 11-12), and; ―percocet for a no knee pain‖ (Pg. 136, Ln. 19); 22)
That misconduct occurred during prosecution's closing arguments that ―Compton got a
commission‖ – ―a commission paid by Celio‖ (Pg. 536, Ls. 1-3); that Compton is the
―middleman (Pg. 536, Ln. 7); that Dr. Celio is ―seeing too many that are referred by Compton‖
(Pg. 531, Ln. 24 to Pg. 532, Ln. 3); that ―there is no evidence that ―ever contacted the DEA‖ (Pg.
533, Ls. 15-21); that Dr. Celio ―didn't say no – he immediately dealt with him (Pg. 534, Ls. 8-
10), and; that ―you have not seen any evidence of him being a doctor‖ – There is just no medical
evidence here‖ (Pg. 536, Ls. 13-15); 23) That misconduct occurred by the agent(s) for the
prosecution collaborating with defendant's medical board against defendant's 5th Amendment
Right (Exhibit 71, 72, 73, and 74); 24) That misconduct occurred when the prosecution
requested and obtained orders banning employment with Excel (Exhibit 1D); 25) That
misconduct occurred when the prosecution advocated that medical care was lacking because the
doctor failed to look in the patient's ears, eyes and throat for a complaint of knee pain (Pg. 323,
Ln. 1 to Pg. 324, Ln. 13); 26) That misconduct occurred when the prosecution put their
knowledge, or beliefs, on the scales by stating ―This isn't the first time that Dr. Celio has done
this kind of think‖ (Pg. 497, Ls. 23-24); that ―You want evidence of intent, of deliberation, of
knowledge, of calculation on the part of the defendant – He has to get the right pen so that it
looks legitimate‖ (Pg. 501, Ls. 6-10), and; that by asking the witness how many times did you
31
confront Dr. Celio about his prescribing practice for narcotics then interjecting that ―It goes to
defendant's knowledge and intent‖ (Pg. 428, Ls. 1-9); 27) That misconduct occurred during
closing arguments that ―No evidence that Dr. Celio was in good faith trying to help law
enforcement or the tapes give no credence‖ (Pg. 533, Ls. 15-21); 28) That misconduct occurred
when the prosecution admitted that they didn't disclose the whereabouts of witness Karen Lutz
(Pg. 279, Ls. 4-5); 29) That misconduct occurred when the prosecution and its agent(s)
interfered with defendant's employment advocating later at a detention hearing that Dr. Celio had
unstable employment and was not following rules (See doc. # 495-2, Memorandum, Pgs. 108-
111), and; 30) That misconduct occurred by the prosecution not correcting false statements made
by witnesses that the prosecution could have or should have known, based on the evidence in
tapes and documents seized, specifically that Compton was let go after the forgeries were
discovered; that Lapetina confronting Dr. Celio when seized documents of AFHC prohibited
such; that Lutz wasn't at AFHC when the Compton thing or forgeries occurred; that Jaster's and
Hogan's misrepresented their testimony as related to the conversation Dr. Celio had with Hogan
in front of the office staff on 7-19-2000; that Compton didn't ask Dr. Celio to write a script on the
taped phone-call of 5-11-2000; that interviews are not taped by the DEA, or Jaster's office; that
doctors not go outside the the normal course of practice to ―protect the pubic‖ is in the
Controlled Substance Act; that the quality in the tapes are comparable; that no discrepancies
from the tapes to manuscripts exist; that there was no discussion about the case between Hogan
and Compton before Dr. Celio arrived on 5-25-2000; that Compton didn't have a debt owed, and;
that Hogan, not Dr. Celio asked to walk along to the Diamond Shamrock after the office visit on
7-19-2000.
Movant presented, in part but not inclusive, legal argument to prosecution misconduct ―We
must consider the trial record as a whole and order a new trial only if the prosecutor’s
misconduct was enough to influence the jury to render a conviction on grounds beyond the
admissible evidence‖ U.S. v. Pena, 930 F.2d 1486, 1491 (10th Cir. 1991).‖ (Doc. # 495, Pg. 71,
Ls. 7-10). When character evidence is improperly presented, it may be grounds for reversal. See
Berger v. United States, 295 U.S. 78, 89, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935) (Doc. # 491-1,
32
Pg. 72, Ls. 6-9).
Claim 5) Defense of Necessity coupled with deliberate ignorance presented supported by case
law (Doc. # 495-1, Pgs 74-77). Compton forged and had unchecked access to black
prescriptions that posed a serious danger to self and the community at large. Dr. Celio allowed
the DEA months to address Compton's forgeries. Compton raised the real likelihood of on-going
criminal activity with Hogan and Dr. Celio stated ―you cannot take my script there and write it‖
(Exhibit 29, Pg 170-171, Ls. 29-1 Governments transcript to medical board).
Movant presented, in part but not inclusive, legal argument to the Defense of Necessity citing
that ―if the defendant was presented with facts that put him on notice that criminal activity is
probably afoot but failed to investigate those facts thereby deliberately declining to verify or
discover the criminal activity‖ U.S. v. Espinoza, 244 F.3d 1234 (10 Cir. 2001) and U.S. v. Glick,
710 F.2d 639 (10 Cir. 1983). A defendant is entitled to jury instruction concerning his theory of
defense, U.S. v. Visinaiz, 428 F.3d 1300, 1308 (10th Cir. 2005). ―A criminal defendant is entitled
to an instruction on his theory of defense provided that the theory is supported by some evidence
and the law‖ U.S. v. Alcorn, 329 F.3d 759, 767 (10th Cir. 2003). U.S. v. Bailey, 444 U.S. 394,
416, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980) cites instructions on the defense are proper if the
defendant produces evidence upon which a reasonable jury could conclude by a preponderance
of the evidence that five requirements are met (Doc. 3 495-1, Pg. 74, Ln. 15 to Pg. 75, Ln. 6).
Claim 6) Immunity. Pursuant to Colo. Rev. Stat. 12-36-118(3), ―any person participating in
good faith in making of a complaint or report or participating in any investigation or
administrative proceeding pursuant to this section shall be immune from any liability, civil or
criminal, that otherwise might result by reason of such action‖. A ―complaint‖ was made to the
DEA. Dr. Celio contacted Professional Investigators (See exhibits 2, 2A, 3 & 4), contacted
pharmacies and followed leads in an attempt to stop drug trafficking though his office long
before Hogan came into the picture and, therefore, was ―Participating in an investigation‖ (Doc.
# 495-1, Pg 78).
33
Claim 7) Entrapment. Movant presented evidence and argument, supported by case law, for
reversal of conviction based on entrapment raised then ineffectively dismissed by defense
counsel. Dr. Celio’s claim of entrapment could not be asserted on direct due to the necessity to
present evidence that no similar design, criminal enterprise or act existed prior to Hogan. Dr.
Celio never asked for money, never tried to sell scripts, never initiate or bragged about ―drug
deals‖ and surely didn’t express his interest to meet on 5-25-2000 with Hogan or any time (Trial
transcripts, Pg. 369, Ln. 18 to 370, Ln. 2; Pg. 374, Ls. 23-25; and Pg. 375, Ls. 3-8). The
enhanced and withheld taped versions, coupled with the totality of the evidence presented in this
appeal, demonstrates a deceptive and coercive degree of agent(s) involvement, Dr. Celio’s
unwillingness to do drug deals, Dr. Celio's ethical prescribing concerns, Dr. Celio's lack of
desire for profit, and a lack of similar conduct or formed design for which he was charged (Doc.
# 495-1, Pgs 79-85).
Movant presented, in part but not inclusive, legal argument to entrapment in that a defendant
may assert an entrapment defense while also claiming innocence U.S. v. Gamache, 156 F.3d 1
(1st Cir. 1998). We hold that even if the defendant denies one or more elements of the crime, he
is entitled to an entrapment instruction whenever there is sufficient evidence from which a
reasonable jury could find entrapment Mathews v. U.S., 485 U.S. 65, 108 S.Ct. 883, 886 (1988).
In Sorrells v. U.S., 287 U.S. 435, 53 S.Ct. 19, L.Ed 511 (1932), the court indicated that the key to
an entrapment defense was the accuser’s predisposition to commit the crime. The court stated
that the government could legitimately provide an opportunity for commission of a crime but
held that entrapment provided a valid defense when a person ―otherwise innocent‖ was induced
by the government to commit a crime so that the government might prosecute. This position was
affirmed in Sherman v. U.S., 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed 2d 848 (1958), The defense of
entrapment is available when a defendant, who was induced to commit an offense by government
agents, had no predisposition to commit the offense U.S. v. Russell, 411 U.S. 423 and U.S. v.
Young, 954 F.2d 614, 616 (10th Cir. 1992) citing U.S. v. Fadel, 844 F.2d 1429 and U.S. v. Nguyen,
413 F.3d 1170, 1178 (10th Cir. 2005). The government must prove that the defendant was not
34
only ―willing‖ to commit the offense charged but also that he or she was ―ready‖ to commit the
offense in the absence of official encouragement U.S. v. Hollingsworth, 27 F.3d 1196 97 Cir.
1994) (Doc. # 495-1, Pg. 80, Ln. 15 to Pg. 81, Ln. 21).
Claim 8) Outrageous Conduct. Six issues raised and presented supported by case law (Doc. #
495-1, Pgs. 85 to 90): 1) That agent's allegedly coerced, or induced, witnesses, co-defendants
and their significant others to misrepresent the facts and offer false statements and; 2) That
agents arranged a surprised meeting, after two outright undercover failures, made with the intent
for Dr. Celio to pick up money already owed by Compton but withheld and contingent on Hogan
obtaining refills. Compton stated that ― we hooked up my side to come along anyway‖ implying
knowledge and collusion with the DEA (Exhibit 27, Govs. 106E, Pg. 3, Ls. 5-14); 3) That
Hogan, falsified a medical condition on his first office visit of 5-18-2000 in order to obtain a
narcotic prescription uncontested by the prosecution as a illegal act; 4) That agent(s) may have
prepped their witness testimony contrary to the facts; 5) That agent(s) based their case and relied
on incredible witness statements that a prudent investigator would have or should have known
was false based on physical evidence and contradicting statements, and; 6) That agent(s) called
Dr. Celio's hospitals, or place of ER employment and instead of verifying employment, discussed
Dr. Celio's indictment that agent(s) should have known would adversely result in ―termination
after officials learned of his involvement in the instant case‖ (PSI report , Pg. 17, # 122).
Movant presented, in part but not inclusive, legal argument to outrageous conduct that occurs
―when government’s conduct during sting operation is sufficiently outrageous courts will not
allow government to prosecute crimes which are the result of that conduct‖ U.S. v. Sneed, 34
F.3d 1570 (10th Cir. 1994) or so outrageous that it violates fundamental fairness and is shocking
to universal justice afforded by the 5th and 14th Amendments. Relevant inquiry is ―whether,
considering the totality of the circumstances in any given case, the government’s conduct is so
shocking, outrageous and intolerable that it offends the universal sense of justice‖ U.S. v. Lacey,
86 F.3d 956, 964 (10 Cir. 1996) and U.S. v. Mosley, 965 F.2d 906, 910 (10 Cir. 1992) (Doc. #
495-1, Pg. 89, Ln. 1-11).
35
Claim 9) Abuse of Discretion. Thirteen issues raised and presented supported by case law (Doc.
# 495-1, Pgs. 91-101): 1) That Judge Nottingham abused his discretion concerning defense's
second motion for a mistrial by ruling, in an arbitrary and whimsical manner, that denied,
contradicted and goes against the second motion for a mistrial. ―When the statement was
brought up in Investigator Jaster's testimony, the defense responded with a vigorous cross-
examination, pointing out that the statement had never been written down before. It is also open
to the defendant at a proper point to establish that the defendant was surprised by the statement,
and that can be done by questioning on cross-examination‖ (Trial transcript, Pg. 277, Ls. 9-15).
However, when the defense raised its second motion for a mistrial, after the prosecution’s second
witness confirmed that ―so the first time I would ever hear any of this, in terms of any recorded
statements of my client, is today in court (Pg. 360, Ls. 10-12), Judge Nottingham stated ―well,
why don't you just continue. I will consider the motion to have been made at this time‖ (Pg. 360,
Ls. 17-20). this directly contradicts the Judges prior ruling that denied the defense a rightful
claim to a mistrial; 2) By not allowing re-cross after granting the prosecution a re-direct exam –
―This is not a tennis match‖ (Pg. 308, Ls. 9-15); 3) By allowing continual prosecution
misconduct and character assassination despite repeated objections by the defense; 4) By
allowing the case to be argued by the prosecution without expert testimony from a doctor; 5) By
allowing agent Jaster give a medical opinion and interpret the rule as law (Pg. 161, Ln. 25 to 162,
Ln. 6); 6) By stating that ―good motive alone is never a defense where the act done or omitted is
a crime‖ during jury instructions (Pg. 568, Ls. 11-12); 7) By allowing the prosecution to portray
Dr. Celio as Compton's ―source‖ or middle-man in closing based on alleged case law and
circumstantial evidence that comes out in the tapes‖ (Pg. 528, Ln. 6 to 529, Ln. 19) that evidence
in Movant's 2255 exculpatory tape presentation and Compton's taped confession refutes; 8) By
allowing repeated and forbidden discussion during trial testimony to continue in closing
arguments about (S) (Pg. 497, Ln. 19 to 498, Ln. 12 and Pg. 538, Ls. 16-17); 9) By asking the
prosecution to interject their opinion after defense objected in front of the jury instead of calling
for a closed hearing concerning calls from pharmacies about prescription for controlled
substances (Pg. 395, Ls. 2-13), about directly confronting Dr. Celio about his prescribing practice
36
(Pg. 427, Ls. 1-9), and about the comment interjected by the prosecution in defense objecting
that exhibits 68 through 78 be admitted (Pg. 236, Ls. 14-25); 10) By allowing the prosecution
ban Dr. Celio's employment at Excel where for 11 months it was followed and allowed but
requested only after Dr. Celio refused plea offers and obtained private counsel (See doc. # 232);
11) By not granting a mistrial based on pervasive prosecution misconduct occurring during
opening statements, trial testimony, and closing arguments; 12) By denying judgment of
acquittal based on a preconceived and bias opinion about the taped conversation between the
undercover agent and Dr. Celio in light of the facts and evidence presented in Movant's 2255
(Pg. 460, Ls. 16-21), and; 13) By, and of itself, that Nottingham's Judgeship may have been
compromised by improprieties leading to his resignation that would raise the possibilities of
outside influences (Rocky Mountain News 10-17-2008, Pg. 5 by Scott Robinson).
Movant presented, in part but not inclusive, legal argument to abuse of discretion that ―A
decision granting an abuse of discretion would occur only if it is ―arbitrary, capricious,
whimsical, or manifestly unreasonable showing the defendant suffered prejudice U.S. v. Combs,
267 F.3d 1167, 1176 (10th Cir. 2001) (citing Coletti v. Cudd Pressure Control, 165 F.3d 767, 777
(10th Cir. 1999) (quoting FDIC v. Oldenburg, 34 F.3d 1529, 1555 (10th Cir. 1994) (Doc. # 495-1,
Pg. 93, Ls. 14-18). The courts, by examining the trial and entire record as a whole, may grant a
mistrial for an abuse of discretion if the error deprived the defendant of a fair trial United States
v. Begay, 144 F.3d 1336, 1339 (10th Cir. 1998).
Claim 10) Conflict of Defense Counsel with Spedding as a previous client (Doc. # 495-1, Pg.
102), and Claim 11 Bias (Doc. # 495-1, Pg. 102).
Movant's May 7, 2009 Addendum expounded on issues to claims 4 (Issue 9) and claim 4
(Issues 23, 24,and 29) generating three issues under 1) Misrepresentation (Issue M) (Jaster's
testimony that Reyes allegedly shared medications with Dr. Celio with argument and facts in
rebuttal); 2) Ineffective assistance (Issue T) of defense counsel allowing Jaster to testify about
Reyes allegedly sharing medication with Dr. Celio that constituted hearsay, as such; and 3)
37
Outrageous conduct (Issue 7) by agent(s) undermining Dr. Celio employment by pitting his 5th
Amendment right against license suspension if he didn't comply with the medical board's order
(Doc. # 498, Pgs. 1-9).
The Tenth Circuit Court incorporated and affirmed Dr. Celio's conviction on direct appeal of
April 30, 2007 (Case # 05-1330) based on evidence shown to be false in this appeal. Those
issues on point were that:
1) Compton had been officially dismissed from Celio’s practice at the All family Health Care
Clinic after Compton obtained one of Celio's prescription pads and began writing prescriptions
for Lorcet, a Schedule 111 narcotic‖ (Tenth Circuit, case # 05-1330, Pg.2, Ls. 15-18, based on
trial transcript, Pg. 393, Ls. 6-17);
2) That ―Celio, however, continued to see Compton after hours and maintained contact with
him‖ (Tenth Circuit, case # 05-1330, Pg.2, Ls. 18-19);
3) That ―the DEA’s investigation of Compton led to an investigation of Celio using Compton as
a ―cooperating source‖ (Tenth Circuit, case # 05-1330, Pg.2, Ls. 19-20)
The Tenth Circuit Court also wrongly affirmed Movant's conviction on direct appeal based
further on five reasons cited (Case # 05-1330). Those issues, as mentioned by the Tenth Circuit
Court, shown in this appeal not reflective of the facts, or out of Dr. Celio's control were that:
1) ―Celio did not present any evidence or witness in his own defense‖ (Pg. 6, Ln.7);
2) ―Saying nothing to discourage Hogan from sharing pills‖, "that all the prescriptions had to
be in Hogan's name" (Pg. 5, Ls. 1-2);
3) Indicating to Hogan that ―he could not write anymore Percocets until things quieted down‖
(Pg. 5, Ls. 14-15);
38
4) Indicating that ―Hogan gave Celio 2000 for the prescription" (Pg. 5, Ln. 10); and
5) ―Theorizing that he was engaged in an honest but misguided reverse sting‖ (Pg. 6, Ls 9-
10).
Issues
Issues presented in Movant's objection s to Magistrate's recommendations to dismiss (Doc. #
501) are raised in this appeal and cited as follows.
Issue One
The Magistrate Judge, and Judge Arguello by affirmation, erred and abused their discretion by
dismissing Movant's Pro Se 2255 Motion with prejudice based, in part, on errors found in
Magistrate Judges recommendation to dismiss (Doc. # 501). Movant objected to the Magistrates
recommendations to dismiss (Doc. # 508) based on that:
1) Movant challenged as false hundreds of statements made by witnesses at trial, and statements
made out side of trial (See doc # 501 Magistrate Judge, Pg. 4, Ln. 10). Movant specifically
raised 27 examples of misrepresentation and falsities in his 2255 found in Claim 2 (See pages
18-36 of doc. # 495-1 & 495-2) and approximately three dozen falsities in his memorandum (See
doc. # 498, Pgs. 12-29, Pg. 41and Pgs. 96-98) (Objection found Doc 508, Pg. 8, # 5);
2) That claims, raised in the 2255 Motion, are ―buried‖ in the memorandum (See Magistrate
Judge doc. # 501, Pg. 4, Ln. 7). All claims are listed in the 2255 Motion form provided by the
court and systematically follows, in an orderly fashion, specific issues supported by evidence,
documents, exhibits and legal arguments that are concise and not repetitious (See doc. # 495-1,
pages 9-102 and doc. # 498, pages 1-9) and not buried, as alleged in the memorandum (Doc. #
39
495-2, Pgs. 9-138) (Objection found doc. # 508, Pg, 7, # 4);
3) That despite the court affording Mr. Celio multiple opportunities to eliminate the prolixity in
his motion, ―his filings demonstrate that he has not even attempted to comply‖ (See doc. # 501,
page 5, Ls. 3-4). The Magistrate Judge’s analysis is misleading and not accurate. Movant’s 2255
Motion of October 31, 2008 (Doc. # 479) consisted of 248 pages of single spaced sentences
verses the April 28, 2009 filing (Doc. # 495-1 and 2) consisting of 257 pages of a double spaced
format (Nearly a 50% reduction in ―prolixity‖). The court has not mentioned at what length it
will, or will not, except a Pro Se 2255 filing, or the number of pages that it would otherwise
deem prolix as the Appeal Court specifically limits to 14,000 words to the appellant's brief
(Objection found doc. # 508, Pg. 9, # 7);
4) That Movant’s May 7, 2009 Addendum (Doc. # 498) was 30 pages long (Doc. # 501, Pg. 3,
Ls. 20-21). Movant’s Addendum (Doc. # 498) was only 9 pages long (Objection found doc. #
508, Pg 9, # 8), and;
5) That Movant's April 20, 2010 filing (Doc. # 490) represented his third of four attempts at
filing a 2255 Motion (See Magistrate Judge, Doc. # 501, Pg. 3, Ln. 12 and Judge Arguello's,
Doc. # 514, Pg. 3, Ln. 15 and Pg. 4, Ln. 13). Movant placed approximately 20 pages of the 2255
Motion, only as an example, in support of his filing a 10 day motion for extension
demonstrating why his printout was incompatible (Similar to showing proof of
compliance)(Facts found doc. # 508, Pg. 4, # 8).
Argument
Movant argues that based on the district court's errors, 1-4 above, and the court's mis-
perception that Movant had filed a third 2255 Motions, meant as an example, Movant should be
granted relief to refile an amended 2255 Motion.
40
Issue 2
The Magistrate Judge, and Judge Arguello by affirmation, erred and abused their discretion by
dismissing Movant's Pro Se 2255 Motion with prejudice based, in part, that Movant's 2255
Motion (Doc. # 495 (1), (2) and doc. # 498) were ―overly long and ―prolix‖ (Doc. # 501, Pg. 5,
Ln. 6)..
Movant objected to the Magistrates findings (Doc. # 508) asserting that his April 28, 2009
filing (Doc. # 495-1) are claims supported by short issues, evidence and legal argument (one
sentence to three paragraphs) presented in a concise, systematically, and non-repeating nature.
Movant’s asserts that his statement of the facts (Doc. # 495- 2, Pgs. 8-138) incorporated
exhibits, taped manuscripts and a summary of the attorney’s opening and closing statement
placed in the body of the text in order for the reader to better follow and understand Movant’s
arguments to the finding of the facts without stopping to verify such. Movant asserts and has
proven that by just removing, and referencing all facts on point, the pages to statement of the
facts (Doc. # 495- 2) can be reduced from 130 pages to 53 (See doc. # 513) (Objection found
doc. # 508, Pgs. 6-7, # 1).
Argument
Movant asserts that the length to his statement of facts (Doc. # 495-2) and issues in support of
his claims (Doc. # 495-1) is secondary to the shear lack of exculpatory evidence presented by
counsel and the false statements and misrepresentation of the facts made at trial, which by
necessity, Movant must address and refute by sufficient facts and argument for the court to
reverse his conviction. Movant demonstrated that he filed his third 2255 Motion (Doc. # 495-1
and 2) while reducing prolixity by half (See issues 1-3 above), and of this filing has reduced the
presentation of the Memorandum (Doc. # 495-2) to under 6,000 words.
41
However, Movant faces an unfair conundrum, or ―catch 22‖; Be prejudice by dismissal for
failure to raise sufficient issues to each claim supported by facts and evidence necessary to alter
the outcome of the verdict, or have his case dismissed do to alleged prolixity. In support,
Movant references the Tenth Circuit's ruling that ―The instances challenged by Celio do not rise,
either individually or cumulatively, to the level of flagrant prosecutorial misconduct required for
a new trial‖ (See case 05-1330, Pg. 11, paragraph 2).
The district court did not address, or state, permissible limits allowed in filing a 2255 Motion
so that Movant may know how much, or not, he can submit. Movant's appeal to the Tenth
Circuit Court has a 14,000 word limitation that Movant has complied with. As such, Movant's
2255 Motion should not be dismissed with prejudice base on prolixity and requests the Appeal's
Court grant relief for Movant to resubmit his 2255 Motion based on the merits and facts
submitted herein that he has shown that he can properly address.
Issue 3
The Magistrate Judge, and Judge Arguello by affirmation, erred and abused their discretion by
dismissing Movant's Pro Se 2255 Motion with prejudice without addressing any part, or portion
thereof, claims 1-4 (See doc. # 495-1) and Addendum (Doc. # 498, Pgs. 1-9), based on their
being ―vague‖, or ―confusing‖ (Doc. # 501, Pg. 5, Ln. 6-7), or not ―simply and concisely‖ stated
(Doc. # 501, Pg. 5, Ln. 7), or that claims 5 and 6 were ―difficult to understand‖(Doc. # 501, Pg.
4, Ls. 20-21).
The Magistrate Judge cited Rule 8(a)(2) (Doc 501, Pg. 2, Ln. 9 and Pg. 5, Ls. 5 and 15) and
Rule 12 (Pg. 2, Ln. 6). The Magistrate Judge did not address any fact thereto in support of a
claim (Doc. # 495-2), submitted and sworn to by Movant, in violated Movant's 5th and 6th
Amendment Rights that would otherwise require the U.S. Attorney to respond. Judge Arguello
affirmed the Magistrates recommendation to dismiss with prejudice Movant's case, in particular,
42
citing rule 8(a)(2) (Doc. # 514, Pg. 5, Ln. 4) with mention to rule 12 and 2(c) (Doc. # 514, Pg. 4,
footnote 3 and 5 respectively). Judge Arguello stated ―What Mr Celio fails to grasp is that, in
order for the court to be able to determine what issues a given pleading shows or raises, the
pleading must be intelligible‖ (Doc. # 514, Pg. 6, Ls. 15-17) (Objection found, doc. # 508, Pg.
11, # 4, 5; Pg. 12, # 6 and 7).
In support of issue 3, Movant objected to the Magistrates findings that Movant's claims 1-4,
on their face, were sufficiently plain supported by facts that would otherwise entitle him to relief.
And, while claims of Defense of Necessity and Immunity (Claims 5 & 6) were ―difficult to
understand‖ (Doc. # 501, Pg. 4, Ls. 20-21), they were claims made simple and concise enough
supported by the facts and case law that would entitle Movant relief (Objection found doc. # 508,
Pg 7, # 2).
Argument
The language in Rule 2(c), under 2255 proceedings, only states that "a moving party must
substantially follow the standard form, which is appended to the rules, or a form provided by the
court". Movant obtained and filled out, to the best of his ability, a 2255 Motion on a form
provided by the court. Although mis-styled, Movant should "not be barred from an appropriate
remedy because he has mis-styled his motion" United States v. Morgank, 346 U.S. 502, 505
(1954). Specifically, Rule 2(b) under section 2255 states that the motion: 1) Specify all grounds
for relief available to the moving party; 2) State the facts supporting each ground; 3) State the
relief requested; 4) Be legible and; 5) Be signed under penalty of perjury.
Movant asserts that he has also followed filing procedures, pursuant to the court's December
1, 2008 ―Local Rules of Practice‖ referenced on pages 8-10 that the Motion: A) Be filed on a
white 8 one half by 11-inch paper with; B) Have margins 1 and one-half at the top and 1 inch at
the left, right, and bottom; C) Be 12-point font; E) Be doubled spaced; F) Be Printed on one
side; G) Be legible; I) Have notation as required to identified parties involved in the case on the
43
first page; K) Have name, mailing address, telephone number and signature at the end of the
paper; J) Follow the caption as designated, and; K) Follow that name, current mailing address,
and telephone number be typed in a signature block at the end of the paper.
Movant acknowledges that his six-paged ―Table of Authorities‖ listed in Memorandum (Pages
138-144) is misplaced and does not referenced authorities cited in his arguments (See doc. # 501,
Pg. 5, Ls. 1-2) and was corrected in his objection to Magistrate Judge's recommendation to
dismiss (Doc. # 508). As such, this should not warrant his case dismissed with prejudice.
Rule 12, specifically Fed. R. Civ. P. 12(b)(6) alleges that to state a claim upon which relief
can be granted, enough facts to state a claim to relief that is plausible on its face need occur Bell
Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). "Factual allegations must be enough to
raise a right to relief above the speculative level." The court must accept as true all well-pleaded
facts and construe all reasonable allegations in the light most favorable to the plaintiff U.S. v.
Colorado Supreme Court, 87 F.3d 1161, 1164 (10 Cir. 1996). Further, the court is to make all
reasonable inferences in the plaintiff's favor Timpanogos Tribe v. Conway, 286 F.3d 1195, 1204
(10 Cir. 2002).
Generally, "if a prisoner’s 2255 Petition raises an issue of material fact (Argument found doc.
# 508, Pg. 10, # 3), the district court must hold a hearing to determine the truth of the
allegations" United States. v. Essig, 10 F.3d 968, 976 (3d Cir. 1993). Section 2255 of 28 U.S.C.
(2000) (Argument found doc. # 508, Pg. 13, # 8) (Summary dismissal inappropriate ―[u]nless the
motion and the files and records of the case conclusively show that the prisoner is entitled to no
relief‖, and that ―[u]nless the motion and the files and records of the case conclusively show that
the prisoner is entitled to no relief, the court shall grant a prompt hearing thereon, determine the
issues and make findings of the fact and conclusions of law with respect thereto‖ Fontaine v.
United States, 411 U.S. 213, 215 (1973) – "It is reversible error for district court not to hold
hearing to resolve genuine factual dispute" United States v. Marr, 856 F.2d 1471, 1472 (10th Cir.
1988).
44
Rule 8(a)(2) states only that a "short and plain statement" be made showing that the pleader is
entitled to relief. Movant found that Rule 8(a) gives no direction, or limit to length and number
of issues or evidence in support of a claim, but, only states that the plaintiff give a "short and
plain statement" of jurisdiction a "short and plain statement" of the claim, and a demand for
judgment. One important exception to this rule is that when a party alleges fraud that the party
must plead the facts of the alleged fraud with particularity (F.R.C.P. 9(b)) in which Movant has
done. However, the "courts should look to the specific allegations in the complaint to determine
whether they plausibly support a legal claim for relief" Alvarado v. KOB-TV, 493 F.3d 1210,
1215 n.2 (10th Cir. 2007). "[T]o state a claim in federal court, a complaint must explain what
each defendant did to him or her; when the defendant did it; how the defendant's action harmed
him or her, and what specific legal right the plaintiff believes the defendant violated Nasious v.
Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10 Cir. 2007).
Movant asserts that in each of his claims, in particular 1, 2, 3, 4, 7, 8 and 9 (Doc. # 495-1),
Movant names each and every person, what they did that harmed him, and what specific legal
right was violated including a demand. Magistrate Judge, and Judge Arguello by affirmation,
only subjectively deny further proceedings, including that the respondent (U.S. Attorney) not
respond to any specific fact supporting any claim, or portion thereof, despite Movant presenting
facts that were not generalities or conclusive in nature. Instead, the court used a ―generic phrase‖
that the ―Respondents would be prejudiced by having to respond to a Motion as wordy and
unwieldy as Mr. Celio remains.‖ (Doc. # 501, Pg. 6, Ls. 1-2) that, otherwise, blocks and protects
the U.S. Attorney's office, and its agent(s), from addressing facts that, otherwise, they would be
hard press to defend or explain.
Magistrate Shaffer cited Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994) (See
Doc. # 501, Pg. 4, Ln. 4) in his recommendation to dismiss Movant's case. However, it was
noted in Ogden that at least the Judge requested the defendant (San Juan County) respond to the
allegations.
45
Websters Unabridged Dictionary interprets the word ―plain‖ as clear to the mind, evident,
manifest, or obvious. The word ―intelligible‖ as displaying sound thought or good judgment.
Movant believes his claims, with issues and facts in support, specifically fraud, are clear and
obvious enough to warrant his case not be dismiss with prejudice.
Issue 4
The Magistrate Judge, and Judge Arguello by affirmation, erred and abused their discretion by
dismissing Movant's Pro Se 2255 Motion with prejudice without addressing any portion thereof,
and facts thereto, in support of claims 7-10 (Doc. # 495-1) that violated Movant's 5 and 6
amendment rights and that would, otherwise, require the U.S. Attorney to respond (Objection
found doc. # 508, Pg. 7, # 3).
Movant objected to the court's findings, or the lack thereof, made in reference to Claims of
Entrapment (Pgs. 79-85), Outrageous Conduct (Pgs. 85-90), and Abuse of Discretion (Pgs. 91-
102). Although possibly mis-grouped or mis-styled, Movant raised valid claims, or parts thereof,
supported by facts, evidence, and case law clearly enough to have warrant further proceedings.
Issue 5
The Magistrate Judge, and Judge Arguello by affirmation, erred and abused their discretion by
dismissing Movant's Pro Se 2255 Motion with prejudice based on Nasious's five-point criteria
(Objection and argument found doc. # 508, Pgs. 14 and 17).
Movant objected to the Magistrate's findings to dismiss Movant’s case based on Nasious v.
Two Unknown B.I.C.E. Agens, 492 F.3d 1158, 1162 (10th Cir. 2007) that references five criteria in
consideration to dismiss a case with prejudice. These criteria include: 1) The degree of actual
prejudice to the defendant; 2) The amount of interference with the judicial process; 3) The
culpability of the litigant; 4) Whether the court warned the party in advance that dismissal of the
action would be a likely sanction for noncompliance, and; 5) The efficacy of lesser sanctions.
46
Movant specifically objected to the Magistrate's findings to dismiss Movant's case with
prejudice based on Nasious (Doc. # 508, Pg. 14-17) and offers the following facts in support:
1) The degree of actual prejudice would lie with Movant, not the defendants (U.S. Attorney), as
issues and facts in support indicate.
2) Movant has attempted each time, to the best of his understanding, and not purposely
otherwise, to comply by providing clear and concise claims while reducing his prolixity (See
issues 1, sub-parts 1-4). Movant is not interfering with the judicial process in that a 2255 Motion
is a necessary and a procedural right granted a Movant in order to right a wrong that the courts
should not take lightly and quickly discard, as such, because there are overburdened;
3) Movant’s degree of culpability, in Pro Se litigant’s amended Motion, does not have the court
explaining what is (and is not) expected to Movant's pleadings. Pro Se litigants are unschooled
in the art of law and are at a disadvantage in filing motions, void of specific and objective
guidelines, to avoid fatal pitfalls. The courts supposedly ―acknowledge‖ that they liberally
―construe‖ a pro se litigants documents, Haines v. Kerner, 404 U.S. 519, 520-21 (1972) and Hall
v. Bellmon, 935 f.2d 1106, 1110 (10th Cir. 1991). As such, it would be disingenuous of the courts
to quickly cast off a 2255 Motion that demonstrate sufficient merit and facts that would
otherwise warrant a evidentiary hearing. The court made the statement only to the affect that
―even pro se litigants must follow the rules of federal procedure‖. But, they did not explained
any objective procedural requirements, or rules that a litigant must follow, other than after-the-
fact, that case laws cited in the text must have a table of authorities indexing the page number
whereby it is found;
4) The District Court or Magistrate only ―warned Mr. Celio that failure to file an appropriate
amended 2255 Motion within the time allowed may result in denial of relief without further
notice‖ (Doc. # 501, Pg. 2, Ls. 16-18 and Pg. 3, Ls. 9-11 referencing doc. # 477 at Pg. 3 of 3 and
doc. # 488 respectively). Movant asserts that the warning states only that it ―may‖ result in
denial of relief without further notice and not that it ―will‖ result in such, and surely not that it
47
would be dismiss ―with‖ prejudice.
5) Movant asserts that there are lesser sanctions available, such as dismissal without prejudice,
partial dismissal leaving intact any claims that are adequately stated, or assigning counsel based
on issue of material fact not conclusive or without merit.
Argument
―The complaint should not be dismissed for failure to state a claim‖ unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him
to relief Conly v. Gibson, 335 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Meade v.
Grubbs, 841 F.2d 1512, 1526 (10th Cir. 1988); Grider v. Texas Oil and Gas Corp., 868 F.2d 1147,
1148 (10 Cir. 1989).
In Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), ―if the Court can reasonably read the
pleadings to state a valid claim on which plaintiff could prevail, it should do so despite the
plaintiff’s failure to cite proper legal authority, his confusion of varies legal theories, his poor
syntax and sentence construction, or his unfamiliarity with pleading requirements‖. ―Plaintiff
whose factual allegations are closed to stating a claim but are missing some important element
that may not have occurred to him should be allowed to amend his complaint‖ Reynoldson v.
Shillinger, 907 F.2d 124, 126-27 (10th Cir. 1990). ―In analyzing the sufficiency of the plaintiff’s
complaint, the court need accept as true only the plaintiff’s well-plead factual contentions, not
his conclusory allegations‖ Dunn v. White, 880 F.2d 1190 (10th Cir. 1989).
The Federal Magistrate Judge overseeing Nasious case entered an order indicating that ―Mr.
Nasious's pleading did not comply with the requirements of Federal Rule of Civil Procedure 8
which, among other things, instructs that "[e]ach averment of a pleading shall be simple, concise,
and direct." (Fed. R. Civ. P. 8(e); see also Fed. R. Civ. P. 8(a), 12(e)). The District Court
dismissed the amended complaint, holding that Nasious continued to fail "to provide a clear and
48
concise statement of each claim that identifies the constitutional right that allegedly has been
violated and that includes specific facts alleging how the [d]efendant or [d]efendants linked to
each claim personally participated in the asserted constitutional violation." The Tenth Circuit
Court reverse the 2007 District Court's dismissal with prejudice and remand for further
proceedings consistent with their opinion; having found Mr. Nasious's appeal meritorious.
Although, dismissals under Rule 41(b) can be used (Argument against found doc. # 508, Pgs.
15 and 16), the Appeals Court cites examples for abuse of discretion, Olsen v. Mapes, 333 F.3d
1199, 1204 (10th Cir. 2003); Petty v. Manpower, Inc., 591 F.2d 615, 617 (10th Cir. 1979). The
Court further argued that ―the standard depends in great measure on the nature of the district
court's dismissal that is, whether dismissal was ordered with or without prejudice to subsequent
attempts at amendment‖. For the culpability of a pro se litigant, ―filing a still-prolix amended
complaint depends in great measure on the usefulness of the notice he or she has received from
the court about what is (and is not) expected in an initial pleading‖. But, Pro Se litigants,
unschooled in the law, are at a disadvantage Erickson v. Pardus, 127 S. Ct. at 2200 (10th Cir.
2007); Andrews v. Heat, 483 F.3d at 1076-78 (10 Cir. 2007) and lesser sanctions, such as
dismissal without prejudice or perhaps partial dismissal, can leave intact any claims that are
adequately stated (if any exist) so that the party does not unknowingly lose its right of access to
the courts because of a technical violation."
The Appeal Courts has upheld the District Court’s dismissal pursuant to 41(b) upon plaintiff
failure to file timely, appear ,or follow court specific orders Reed v. Bennett, 312 F.3d 1190,
1193 (10th Cir. 2002); Jones v. KU Medical Center, # 08-2357-KHV (10th Cir. 2009); Wallace v.
Russell, # 08-6044 (10th Cir.2008), and; Scherer v. State of Kansas, # 07-3084 (10th Cir. 2008).
This is not the case with Dr. Celio's 2255 Motion. As such, Movant 2255 Motion should not be
dismissed with prejudice based on the Nasious factors applied and request the Appeal's Court
grant relief by allowing Movant the opportunity to resubmit his 2255 Motion based on the errors,
issues, and argument cited herein.
49
Issue 6
The Magistrate Judge, and Judge Arguello by affirmation, erred and abused their discretion by
dismissing Movant's Pro Se 2255 Motion with prejudice using rule 8(a)(2), 12, and 2(c)
governing Fed. R. Civ. P. to subjectively weed out Pro Se filings, while asserting otherwise, that
would otherwise require the U.S. Attorney to response to facts and issues in support of any
claim.
In Support, Sean Harrington at knowyourcourt.com has asserted that pro se litigant's filings
are an exercise in ―futility‖ and systematically weeded out. Movant has shepardized Nasious,
complying 479 references since 2007, and has not found a Pro Se litigant being granted relief
after the district court ruled that their filings were not ―short and plain‖ or did not follow rules
appended, in particular rule 8(a) (See doccelio.com under Nasious, 5 of 27 pages submitted).
Movant also has yet to receive clarification to Harrington's allegations from the Appeals court
filed as a Motion on April 12, 2010.
According to Sean Harrington at www.knowyourcourts.com, under Pro Se Litigants
Exposed, "the federal district and appellate courts have perfected a seven-step process to impose
the same futility by systemically weeding out an entire class of cases, regardless of merit, whilst
maintaining the appearance of accessibility:
(1) The pro se party files a Complaint and pays the $300 docket fee.
(2) The Article III judge, upon receiving ECF notification of a pro se filed complaint, issues a
template "General Order of Reference" to the workhorse of the policy, a magistrate judge.
(3) The magistrate judge will review the Complaint and arrive at a predetermined outcome by
actively ignoring facts that were alleged; misstating facts that were alleged; or misrepresenting
precedents and legal holdings that are not applicable or that do not exist. The magistrate will
axiomatically recommend dismissal of all claims against all defendants. During this time, which
may last up to a year, the magistrate will often suspend all discoveries, depriving the plaintiffs of
the evidence he may need to prove his claims.
50
(4) The plaintiff' may file objections to the magistrate's recommendations, pursuant to Rule
72(b).
(5) The article III judge will accept the recommendation to dismiss the case. The order of
dismissal may range from a single sentence disingenuously claiming to have performed a de
novo review of the magistrate's recommendations to a several-page order summarizing and
paraphrasing the magistrate's recommendations.
(6) The pro se party may file an appeal and pay the $450 docket fee.
(7) Although "Granting defendant's motion to dismiss is a harsh remedy which must be
cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to
protect the interests of justice," the Tenth Circuit will issue an unpublished memorandum
opinion, which may summarize the magistrate's recommendations and/or the district court's order
of dismissal but, make little or no mention of the appellant's dismissed complaint or his appellate
arguments. The memorandum order, drafted by a law clerk in only a few hours of time and
barely glanced at (if at all) by a circuit judge, will apply a purely deferential standard of review
(de novo review of conclusions-of-law is, apparently, withheld), noting that the magistrate's
findings require no elaboration. The trial court's judgment will be affirmed and the case will
stand as dismissed, purportedly "on the merits."
Unbelievable, a blueprint raping a defendant's due process and equal protection for relief
under the 6 Amendment. So far, it appears that the court's song and dance act is playing out like
clockwork. In parallel, this would be as if a surgeon took his patients into surgery, made an
incision, but did not address the internal problems under the guise that he did. It would be as if a
patient came in for an office visit, but because his complaints were not short and plain, the doctor
chooses to ignore or refuses to see the patient; Or better, as if a patient came into the emergency
room, given assess, but told he or she would have to do the surgery upon themselves. Dr. Celio
shepardized Nasious 2007 pro se case that was remanded back to the district court. Despite 479
referenced cases that cite Nasious, no pro se case since then has been remanded back after the
district rejected reviewing it due to their not being short and plain, or not following rules
appended 8(a), 2(c) or 12 (See exhibit at doccelio.com under Nasious).
51
Issue 7
Accordingly, Movant raises and, as such, preserves his right to appeal his 2255 Motion due to
new legislation, HB 4115, that upon becoming law would serve as grounds for reversal of
Movant's 2255 Motion based on the district court's interpretation of the out-dated Conley
Standard. The District Court cited in conclusion that Supreme Court ―explicitly replaced the
Conley standard (Doc. # 514, Pg. 10, footnote) with a plausibility standard which asks whether
the complaint contains enough facts to state a claim to relief that is plausible on its face Ashcroft
v. Lqbal, ---U.S. ---, 129 S.Ct. 1937 (2009) and Bell Atlantic Coup. v. Twombly, 550 U.S. 544,
570 (2007). However, HR 4115 introduced November 19, 2009 is a bill, introduced and
submitted to committee, that seeks to prohibit the district court from dismissing a complaint
under subdivision (b)(6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it
appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which
would entitle the plaintiff to relief. Movant has demonstrated in this appeal that he has presented
more than enough facts, or set of facts to state a claim to relief that is plausible on its face.
Conclusion
In summary, Movant has demonstrated the District Court has erred and abused their discretion
in dismissing Movant's 2255 Motion with prejudice based on:
1) That Movant has not attempted to comply to reduce prolixity;
2) That Movant filed a forth Motion;
3) That Rules appended pursuant to 2(c), 12, or 8(a) and case law were incorrectly applied;
4) That Movant has not sufficiently demonstrated claims, or parts thereof, supported by the facts
in support of a claim in violation of his 5th or 6th Amendment that would require further
proceedings, and;
52
5) That Nasious factors were incorrectly applied.
Wherefore, Movant requests the Appeals Court grant him relief and remand back to the
District Court, his 2255 Motion for further proceedings that either requires the U.S. Attorneys
office to respond to the facts and issues presented in violation of Movant's 5th and 6th
Amendment Rights in the best interest of justice, or allow Movant the opportunity to amend his
2255 Motion based on the errors, issues, facts, and arguments, presented herein, thus preventing
a gross miscarriage of justice.
Albert Celio D.O.
P.O. Box 6581
Broomfield, Colo. 80021
720-341-5309
53
