United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255 MOTION)
Henry E. Hudson United States District Judge
Joseph T. Hackett, a former federal inmate proceeding pro se, submitted this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("§ 2255 Motion, " ECF No. 60). I-Iackett contends that he experienced ineffective assistance of counsel in conjunction with his criminal proceedings, and that his conviction and sentence are unlawful. Specifically, Hackett demands relief because:
Claim One: "In Tanner v. [United States], 483 U.S. 107, 97 L.Ed.2d 90, 107 S.Ct. 2739 [(1987)], the U.S. Supreme Court ruled that [18 U.S.C] § 371 covers conspiracies to defraud the U.S., or any agency thereof, and does not describe any private corporation, nor does the various ways the federal government provides financial assistance or that such assistance is always accompanied by restrictions on its use, and it is asking the U.S. Supreme Court to expand the reach of criminal provision by reading new language into the statute; Petitioner has in no way conspired to defraud the United States nor any agency thereof, and is being held outside of the maxims prescribed by law." (§ 2255 Mot. 7.)
Claim Two: "Title 18 U.S.C. § 371 was imposed in violation of Petitioner's 10th Amendment rights, where in Bond v. [United States, 564 U.S. 211 (2011)], the United States Supreme Court ruled that Bond did have the right to question the applicability of [the] federal statute applied in the state; where powers not delegated to the U.S.** by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people, and petitioner was never made aware that he was being coerced or defrauded into waiving this right intentionally by knowledge and it was malice of the ineffectiveness of counsel, which allowed such mistake in violation of 6th Amendment."
Claim Three: "The Judge even had to warn the government at pretrial that he saw no criminal intent, as the alleged Medicaid fraud was based upon clear clerical error and not malice, petitioner has a record with the state where he asked for more training if needed prior to even being indicted erroneously under said biased Indictment based off erroneous government testimony and application of statute in error as well as inapplicably, however, counsel was ineffective as counsel did not give petitioner any insight on the malice at hand, but coerced him into an unlawful plea." (Id. at 8.)
The Government has responded, asserting that Hackett's first claim is procedurally defaulted and that his remaining claims lack merit. (ECF No. 62.) Hackett has filed a Reply. (ECF No. 64.) For the reasons set forth below, Hackett's § 2255 Motion (ECF No. 60) will be denied.
I. PROCEDURAL HISTORY
On March 19, 2012, a grand jury charged Hackett with four counts of health care fraud, in violation of 18 U.S.C. §§ 2 and 1347, and one count of conspiracy to pay health care kickbacks, in violation of 18 U.S.C. § 371. (Indictment 1-13, ECF No. 1.) On August 10, 2012, the Government filed a Criminal Information, charging Hackett with one count of conspiracy to commit health care fraud, in violation of 18 U.S.C. § 371. (Criminal Information 1-2, ECF No. 36.) On August 13, 2012, Hackett entered into a Plea Agreement in which he agreed to plead guilty to the charge contained in the Criminal Information. (Plea Agreement ¶ 1, ECF No. 40.)
In the signed Statement of Facts that accompanied his Plea Agreement, Hackett admitted that he had operated an intensive in-home therapy ("IIH") program for children that was funded by Medicaid. (Statement of Facts ¶¶ 2-4, ECF No. 41.) He admitted that the purpose of the conspiracy was "to unlawfully enrich himself through the submission of false and fraudulent Medicaid claims for IIH services that were not medically necessary, were not therapeutic services, and were not delivered through qualified counselors." (Id. ¶ 16.) As a result, Hackett, through his company, submitted at least $1, 570, 041.60 in fraudulent claims to Medicaid. (Id. ¶ 27.)
On November 14, 2012, the Court entered judgment against Hackett and sentenced him to 48 months of incarceration. (J. 2, ECF No. 54.) Hackett did not appeal. On May 7, 2013, Hackett filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the District of South Carolina. (See ECF No. 56.) On July 31, 2013, after providing notice to Hackett, the District of South Carolina recharacterized Hackett's § 2241 Petition as a § 2255 Motion and ordered that the § 2255 Motion be transferred to this Court for further proceedings. (See ECF No. 58, at 2.)
II. PROCEDURALLY DEFAULTED CLAIM
In Claim One, Hackett contends that pursuant to the Supreme Court's decision in Tanner v. United States, 483 U.S. 107 (1987), he "in no way conspired to defraud the United States nor any agency thereof." (§ 2255 Mot. 7.) Hackett cites Tanner for the proposition that 18 U.S.C. § 371 only "covers conspiracies to defraud the U.S., or any agency thereof, and does not describe any private corporation." (Id.) Hackett appears to suggest that because the United States "contributes approximately 50% of the cost of Medicaid" in Virginia, Medicaid is akin to a private corporation and therefore is not an agency of the United States. (See id.)
The procedural default rule bars Claim One from review here, absent a showing of cause and prejudice or actual innocence, because Hackett could have raised, but did not raise, this claim on direct appeal. See Bousley v. United States, 523 U.S. 614, 622-23 (1998); see also United States v. Under, 552 F.3d 391, 397 (4th Cir. 2009) (internal quotation marks omitted) (citation omitted) (explaining that a petitioner who waives the right to appeal "is not precluded from filing a petition for collateral review. But he is precluded from raising claims that are the sort that could have been raised on appeal."). In his Reply, Hackett states that he is "actually innocent of the claim(s) brought against him under 18 U.S.C. § 371 on the face of the statute under its congressional intent and U.S. Supreme Court precedence in Tanner v. United States" (Reply 2.) With respect to actual innocence, a "petitioner must demonstrate that in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley, 523 U.S. at 623 (citation and internal quotation marks omitted). Moreover, actual innocence refers to "factual innocence, not mere legal insufficiency." Id. (citation omitted).
Hackett pled guilty to conspiracy to commit health care fraud, in violation of 18 U.S.C. § 371. (Plea Agreement ¶ 1.) Title 18 U.S.C. Section 371 "criminalizes two types of conspiracies: conspiracies to commit an offense against the United States [the "offense clause"] and conspiracies to defraud the United States [the "defraud clause"]." United States v. Ellis, 121 F.3d 908, 913 (4th Cir. 1997) (citing United States v. Arch Trading Co., 987 F.2d 1087, 1090 (4th Cir. 1993)). The offense clause "extends generally to cover any offense made illegal by federal law." Id. (citations omitted). For a conspiracy charged under the defraud clause, however, the Government must prove that the United States, or an agency thereof, was the target ...