Case 3:11-cv-01673-L Document 7 Filed 01/13/12 Page 1 of 18 PageID 114 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION BASSEY JACKSON EKANEM, ) ID # 33575-177, ) Movant, ) vs. ) No. 3:11-CV-1673-L-BH ) No. 3:05-CR-0173-L UNITED STATES OF AMERICA, ) Respondent. ) Referred to U.S. Magistrate Judge FINDINGS, CONCLUSIONS, AND RECOMMENDATION Pursuant to Special Order 3-251, this case has been automatically referred for findings, conclusions, and recommendation. Based on the relevant filings, evidence and applicable law, the motion to vacate should be DENIED. I. BACKGROUND Federal inmate Bassey Jackson Ekanem (Movant) filed a Motion to Vacate, Set Aside, or Correct Sentence (Mot.) under 28 U.S.C. § 2255 challenging his federal conviction and sentence in Cause No. 3:05-CR-0173-L. The respondent is the United States of America (Government). A. Factual & Procedural History On February 23, 2006, Movant was charged by superseding indictment with five counts of health care fraud in violation of 18 U.S.C. § 1347. (See doc. 38).1 He pled not guilty and was tried before a jury on April 10-21, 2006. According to the trial testimony, movant operated a medical equipment business named Rooster Medical Equipment and Supplies in Fort Worth, Texas. Rooster was an approved durable medical equipment (DME) provider under Medicare. (R. 2:186, 290-91). Movant: 1) supplied patients with scooters but billed Medicare, and was paid, for the more expensive power wheelchairs 1 Unless otherwise noted, all document numbers refer to the docket number assigned in the underlying criminal action. Case 3:11-cv-01673-L Document 7 Filed 01/13/12 Page 2 of 18 PageID 115 (R. 2:384-86; R. 5:979-982, 992-93; R. 6:1146-47, 1155-65; R. 7:1405-10); 2) submitted forged doctor’s signatures as support for reimbursements (R. 4:675-693); and 3) supplied scooters to people who never saw a doctor to have the equipment prescribed for them, but were instead contacted and asked whether they wanted a free scooter or wheelchair. (R. 5:980-82, 993-96). Movant was convicted on all five counts. (See doc. 80). After sentencing hearings on November 27, 2006, and December 18, 2006, the district court sentenced movant to ten years imprisonment on each count, to run concurrently. (doc. 93). Movant appealed his convictions and sentence. On January 7, 2009, the Fifth Circuit affirmed his convictions in a published opinion, but remanded the case for resentencing after determining that the district court had erred in determining that movant had entered into a jointly undertaken criminal activity with another person and finding this to be relevant conduct that increased the applicable sentencing range. United States v. Ekanem, 555 F.3d 172 (5th Cir. Jan. 7, 2009). On April 6, 2009, after hearing argument from counsel and a statement from movant, the district court again sentenced movant to ten years of imprisonment on all counts, to be served concurrently. (doc. 150). Movant’s appeal of his resentencing was dismissed by the Fifth Circuit as frivolous. United States v. Ekanem, No. 09-10371 (5th Cir. March 17, 2010). Movant did not file a petition for certiorari with the Supreme Court. B. Substantive Claims Movant filed his motion to vacate and supporting memorandum (“Mem.”) on July 11, 2011, asserting the following claims: (1) his trial attorney rendered ineffective assistance of counsel by: -failing to conduct a pretrial investigation, failing to hire an investigator to conduct an investigation, and failing to contact potential witnesses (Mem. at 9-10); 2 Case 3:11-cv-01673-L Document 7 Filed 01/13/12 Page 3 of 18 PageID 116 -failing to object to the indictment (Mem. at 10-12); -failing to object to perjured testimony given by government witnesses (Mem. at 15- 17); -failing to properly object to the withholding of exculpatory evidence by the prosecution (Reply at 9-10); -not permitting movant to testify at trial (Mem. at 10); -making an improper argument in his closing argument to the jury (Mem. at 9); and -failing to object to the jury instruction failing to limit the jury to the five transactions set forth in the indictment (Mem. at 6-8); (2) his appellate attorney rendered ineffective assistance of counsel by: -refusing to incorporate any information movant gave her into her brief on appeal, and instead relying solely on information in the trial transcript (Mem. at 12-13); -refusing to meet with movant face-to-face or speak to movant by telephone (Mem at 13); -failing to raise “obviously winning arguments” on appeal, such as claims of ineffective assistance of trial counsel and the admission of hearsay testimony (Mem. at 14, 17-18); and -refusing to consult with movant before filing an Anders brief during his second direct appeal (Mem. at 13); . (3) movant was constructively denied his right to counsel at his criminal trial because he was denied the use of his resources when the money in his bank accounts was seized, and when the government filed a civil case and he could not afford counsel (Mem. at 19-20); (4) movant was convicted based on a defective indictment because there were discrepancies between the testimony and the indictment and because of mistakes in the indictment (Reply at 2-6); and (5) movant was convicted based on the withholding and suppression of exculpatory evidence, hearsay, and perjured testimony (Reply at 7-10). The Government filed a response brief on September 13, 2011. (See Resp. Opp’n Mot. (“Resp.”)). 3 Case 3:11-cv-01673-L Document 7 Filed 01/13/12 Page 4 of 18 PageID 117 Movant filed a reply brief on October 5, 2011. II. SCOPE OF RELIEF AVAILABLE UNDER § 2255 “Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.” United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (citations and internal quotation marks omitted). It is well established that “a collateral challenge may not do service for an appeal.” United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc) (quoting United States v. Frady, 456 U.S. 152, 165 (1982)). A failure to raise a claim on direct appeal may procedurally bar an individual from raising the claim on collateral review. United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001). Defend- ants may only collaterally attack their convictions on grounds of error omitted from their direct appeals upon showing “cause” for the omission and “actual prejudice” resulting from the asserted error. Shaid, 937 F.2d at 232. However, “there is no procedural default for failure to raise an ineffective-assistance claim on direct appeal” because “requiring a criminal defendant to bring [such] claims on direct appeal does not promote the[] objectives” of the procedural default doctrine, “to conserve judicial resources and to respect the law’s important interest in the finality of judg- ments.” Massaro v. United States, 538 U.S. 500, 503-04 (2003). The Government may also waive the procedural bar defense. Willis, 273 F.3d at 597. III. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL Movant asserts that his trial counsel provided ineffective assistance in several respects. The Sixth Amendment to the United States Constitution provides in relevant part that “[i]n all criminal prosecutions, the accused shall enjoy the right . to have the Assistance of Counsel for 4 Case 3:11-cv-01673-L Document 7 Filed 01/13/12 Page 5 of 18 PageID 118 his defense.” U.S. Const. art. VI. The Sixth Amendment guarantees a criminal defendant the effective assistance of counsel, both at trial and on appeal. Strickland v. Washington, 466 U.S. 668 (1984); Evitts v. Lucey, 469 U.S. 387, 396 (1985). To successfully state a claim of ineffective assistance of counsel, the prisoner must demonstrate that counsel’s performance was deficient and that the deficient performance prejudiced his or her defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). A failure to establish either prong of the Strickland test requires a finding that counsel’s performance was constitutionally effective. See 466 U.S. at 696. The Court may address the prongs in any order. Smith v. Robbins, 528 U.S. 259, 286 n.14 (2000). In determining whether counsel’s performance is deficient, courts “indulge a strong pre- sumption that counsel’s conduct falls within the wide range of reasonable assistance.” Strickland, 466 U.S. at 689. “The reasonableness of counsel’s actions may be determined or substantially influ- enced by the defendant’s own statements or actions.” Id. at 691. To establish prejudice, a movant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability suffi- cient to undermine confidence in the outcome.” Id. at 694; Williams v. Taylor, 529 U.S. 362, 393 n.17 (2000) (inquiry focuses on whether counsel’s deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair). Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been different absent counsel’s alleged errors. Strickland, 466 U.S. at 695-96. To show prejudice in the sentencing context, the movant must demonstrate that the alleged deficiency of counsel created a reasonable probability that his sentence would have been less harsh.