United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
KINKEADE UNITED STATES DISTRICT JUDGE.
Frenchitt Su-Dell Collins, a federal prisoner, proceeding
pro se, has filed a 28 U.S.C. § 2255 motion to
vacate, set aside, or correct his federal sentence. He raises
numerous challenges to his convictions for aiding and
abetting, conspiracy to commit health care and mail fraud,
fraud, aggravated identity theft, and conspiracy to tamper
with witnesses. He also challenges his sentence. Because he
is not entitled to the relief that he seeks, for the reasons
set out below, the Court DENIES his Section
and his coconspirators-including Kara Collins, Natasha
Robinson, Stephanie Moses, Allen Robison, and
others-“filed false claims for automobile accidents
that never happened, using postal boxes registered to assumed
names.” United States v. Collins, 774 F.3d
256, 259 (5th Cir. 2014), cert. denied 136 S.Ct. 260
(2015). “They advertised on television and elsewhere,
used heavy machinery to damage recruits' automobiles, and
created sham chiropractic clinics to ‘provide
treatment.'” Id. Collins also conspired
with Robison to obtain favorable trial testimony from
prospective witnesses. See Id. at 260-61.
was indicted on the following nine counts: one count of
conspiracy to commit mail fraud and health care fraud, and
aiding and abetting, in violation of 18 U.S.C. §§ 2
and 1349; three counts of mail fraud and aiding and abetting,
in violation of 18 U.S.C. §§ 2 and 1341; four
counts of aggravated identity theft and aiding and abetting,
in violation of 18 U.S.C. §§ 2 and 1028; and one
count of conspiracy to tamper with witnesses, in violation of
18 U.S.C. § 1512(k). Two of the
aggravated-identity-theft counts were dismissed before trial,
and the jury found Collins guilty on the remaining counts.
See Id. at 260; see also United States v.
Collins, 3:11-cr-128-K (2) (N.D. Tex.), Dkt. No. 274.
The Court sentenced him to 180 months in prison with three
years of supervised release and ordered $700, 715.04 in
restitution. See United States v. Collins,
3:11-cr-128-K (2) (N.D. Tex.), Dkt. No. 274.
his unsuccessful direct appeal, Collins filed this Section
2255 motion. Dkt. No. 1. He raised three claims: (1) his
conviction under the healthcare fraud statute-18 U.S.C.
§ 1347-violated his right to due process because that
statute is unconstitutionally vague, see Dkt. No. 1
at 4, 16-21; (2) the Court violated his Sixth Amendment
rights at sentencing when it, and not the jury, determined
the amount of loss under the United States Sentencing
Guidelines (“U.S.S.G.”), see Id. at 5,
22-24; and (3) the Court likewise violated his Sixth
Amendment rights when it determined which specific offense
characteristics applied to his Guidelines sentence, see
Id. at 7, 29-31. Collins then supplemented his Section
2255 motion to add claim (4)-that his counsel was ineffective
for failing to (a) gather evidence that would have shown that
Collins's company was a legitimate business to rebut the
government's representation at trial that the business
was a sham, (b) present evidence to the jury, including
checks from Dr. B., to show that Collins's business was
legitimate, (c) present evidence or argue that co-conspirator
Robison was in jail during the same months that the
government alleged Collins was engaged in conspiracies to
commit fraud, (d) argue that no evidence connected Collins to
fraudulent claims for medical benefits; (e) cross-examine
Stacy Brown on her erroneous in-court identification of
Robison as Collins, (f) challenge, at sentencing, the
Court's loss calculation or its decision to apply the
mass-marketing enhancement; (g) remind the Court that, at the
forfeiture hearing, the Court made clear that it “could
not make [Collins] pay $500, 000;” and (h) represent
Collins at oral argument on direct appeal. See Dkt.
No. 6 (requesting the Court's leave to amend his Section
2255 motion); see also Dkt. No. 13 (granting leave).
then amended his Section 2255 motion a second time.
See Dkt. No. 16 (requesting the Court's leave to
amend his Section 2255 motion); see also Dkt. No. 17
(granting leave). In his amended motion, he elaborated on his
claim that his counsel was ineffective for ceding the
responsibility of the oral argument to Robison's counsel,
adding that his counsel could have challenged the Court's
loss determination during the oral argument and “asked
the [Fifth Circuit] to remand the case . . . for a
determination as to which of the accidents were legitimate
accidents, and what portion of the claims would have been
paid by the various insurance companies in the absence of
fraud.” See Dkt. No. 16 at 9. And he added
claim (5)-that the Court “lacked jurisdiction” to
convict him under 18 U.S.C. § 1347 because “that
statute lacks the required nexus to interstate
commerce.” See Dkt. No. 16 at 11.
relief under Section 2255 is ordinarily limited to claims of
constitutional or jurisdictional magnitude that could not
have been raised on direct appeal and would, if ignored,
result in a complete miscarriage of justice. See United
States v. Perez, 952 F.2d 908, 909 (5th Cir. 1992).
Where a claim was raised and decided on direct appeal, a
district court may not revisit it in a Section 2255
proceeding. See United States v. Kalish, 780 F.2d
506, 508 (5th Cir. 1986) (citing United States v.
Jones, 614 F.2d 80, 82 (5th Cir. 1980)). Where a claim
could have been raised on direct appeal, but was not, it is
defaulted. See United States v. Pierce, 959 F.2d
1297, 1301 (5th Cir. 1992), cert. denied 506 U.S.
1007 (1992). To overcome the default and obtain relief on a
claim raised for the first time on collateral review, a
prisoner must show “cause” for the default and
“actual prejudice” resulting from the error.
United States v. Frady, 456 U.S. 152,
167-68 (1982). The only recognized exception to this rule is
in an “extraordinary case” where “a
constitutional violation has probably resulted in the
conviction of one who is actually innocent.” Murray
v. Carrier, 477 U.S. 478, 496 (1986).
Sixth Amendment to the United States Constitution guarantees
a defendant reasonably effective assistance of counsel at all
critical stages of a criminal proceeding. See Cuyler v.
Sullivan, 446 U.S. 335, 344 (1980). To obtain
post-conviction relief on a claim that his counsel was
constitutionally ineffective, Collins must satisfy the
two-pronged test set out in Strickland v.
Washington, 466 U.S. 668 (1984). First, he must show
that counsel's performance fell below an objective
standard of reasonable professional service. See Id.
at 687. Second, he must establish that his counsel's
substandard performance caused prejudice. See Id. at
691-92. That is, Collins must show that, “but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” Id. at
Process Challenge to 18 U.S.C. § 1347
first claims that Section 1347 is unconstitutionally vague
because no reasonable person would realize that he is
committing healthcare fraud when he submits fraudulent claims
for medical services to automobile insurance companies.
See Dkt. No. 1 at 21 (“Movant's Due
Process was violated when [Section 1347] was used to
prosecute him . . . because he did not have dealings with
healthcare insurance providers.”). Because Collins
could have, but did not, raise this argument on direct
appeal, it is defaulted, and he cannot obtain relief here
unless he shows cause and prejudice. See Bousley v.
United States, 523 U.S. 614, 622 (1998).
does not attempt to establish cause beyond mentioning that
his “appellate counsel did not see [this] argument
apparently.” See Dkt. No. 1 at 10.
Collins's statement, construed liberally, could be read
to claim that counsel's ineffectiveness was the cause of
his default. “[I]neffective assistance of counsel in
the constitutional sense” can constitute cause to
overcome a procedural bar. United States v. Guerra,
94 F.3d 989, 994 (5th Cir. 1996). But Collins cannot show
that his counsel was constitutionally ineffective for
refusing to raise this meritless claim. As the Court of
Appeals noted on direct appeal, when “automobile
insurers pay for medical treatment, they are health care
benefit programs” within the meaning of the healthcare
fraud statute. Collins, 774 F.3d at 260. That is, it
is clear that Collins would violate Section 1347 when he
submitted a false claim “for medical treatment at a
chiropractor” to an insurance carrier. See
id.; see also 18 U.S.C. § 1347 (making it
illegal to “defraud any health care benefit
program”); 18 U.S.C. § 24(b) ...