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Collins v. United States

United States District Court, N.D. Texas, Dallas Division

January 23, 2018

FRENCHITT SU-DELL COLLINS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          ED KINKEADE UNITED STATES DISTRICT JUDGE.

         Movant 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 2255 motion.

         BACKGROUND

         Collins 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.

         Collins 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.

         After 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).

         Collins 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.

         LEGAL STANDARDS

         Post-conviction 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).

         The 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 694.

         ANALYSIS

         Due Process Challenge to 18 U.S.C. § 1347

         Collins 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).

         Collins 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) ...


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