The opinion of the court was delivered by: William W. Caldwell United States District Judge
On November 11, 2008, Defendant Clifford Fake, an inmate at SCI-Cresson, filed a motion pursuant to 28 U.S.C. § 2255 (doc. 125). After granting him leave to amend, Defendant filed his amended § 2255 motion (doc. 131) on February 26, 2009. The Government filed an opposition brief in response to our Order to Show Cause. In his motion, Fake asserts two grounds for relief, namely (1) lack of evidence to convict and (2) ineffective assistance of counsel. We will construe Fake's first ground for relief as seeking to withdraw his guilty plea. After review, we will deny defendant's § 2255 motion.
On April 20, 2006, Fake pleaded guilty to a two-count indictment charging him with Health Care Fraud Resulting in Serious Bodily Injury in violation of 18 U.S.C. § 1347 and Criminal Forfeiture pursuant to 18 U.S.C. § 982(a)(7) and 28 U.S.C. § 2461(c). (doc. 51). On January 24, 2007, he was sentenced to 218 months' imprisonment and ordered to pay restitution in the amount of $236,853.21. (doc. 69). The Third Circuit affirmed Fake's conviction and sentence. See United States v. Fake, 269 F.App'x 208 (3d Cir. 2008).
The charges stem from a residential personal care facility in Lebanon County, Pennsylvania operated by Fake and his wife. The Fakes participated in a number of state and federally funded programs to provide care to dependent individuals. An investigation revealed that the Fakes fraudulently obtained payments from these programs by submitting false documentation which overstated the level of care provided and the number of hours worked by the care providers. The failure to provide proper care to individuals at the facility also led to episodes of neglect and abuse.
As noted, Fake pursued a direct appeal of his conviction and sentence. However, he did not challenge the validity of his guilty plea on appeal. The government argues that Fake procedurally defaulted this claim by not challenging its validity on direct review.
"It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked." Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)(citations omitted). Additionally, the validity of a guilty plea may only be attacked on collateral review if it was first challenged on direct review. Id. Failure to raise a claim on direct appeal results in procedural default of the claim, foreclosing collateral review unless the prisoner can show cause excusing the default and actual prejudice. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). See also United States v. Essig, 10 F.3d 968, 979 (3d Cir. 1993). A defendant may also overcome a procedural default if he can show that he is "actually innocent." United States v. Garth, 188 F.3d 99, 106 (3d Cir. 1999)(citations omitted). Actual innocence, meaning factual rather than legal innocence, requires a defendant to establish that "in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Id. at 107 (quoting Bousley, 523 U.S. at 623).*fn1
The "cause" prong for an exception to procedural default requires a showing that "some objective factor external to the defense impeded counsel's efforts" to raise the claim. Essig, 10 F.3d at 979 (internal quotations omitted). To establish actual prejudice, a defendant must show "not merely that the errors at...trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Frady, 456 U.S. at 170. It is well settled that a successful claim of ineffective assistance of counsel "satisfies the 'cause' prong of a procedural default inquiry." Garth, 188 F.3d at 107.
Fake has raised ineffective assistance of counsel in his § 2255 motion. However, only one of his 12 arguments, styled as grounds for relief, asserts that his appellate counsel was ineffective for failing to challenge his guilty plea on appeal. Instead, 11 of his arguments allege that his attorney was ineffective at the plea and sentencing stages. These arguments go to the merits of whether his plea was knowing and voluntary, not to whether ineffective assistance "caused" his failure to challenge his guilty plea on direct review. See Id. Therefore, 11 of his 12 arguments are not relevant to our analysis.
We conclude that Fake's argument that appellate counsel was ineffective is not sufficient to establish the "cause" prong for an exception to procedural default. In order for ineffectiveness to constitute "cause," it must rise to a level of constitutional deprivation. The defendant must show that "'counsel's representation fell below an objective standard of reasonableness,'" and that the deficient representation prejudiced the defendant to the extent that "'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" United States v. Mannino, 212 F.3d 835, 840 (3d Cir. 2000)(quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Defendant's allegations amount to mere assertions and legal conclusions. He has not met his burden of showing that appellate counsel's representation fell below an objective standard of reasonableness.
The second exception to procedural default requires Fake to establish that he is actually innocent. Garth, 188 F.3d at 106. Contrary to his assertion, the evidence clearly indicates that it is more likely that not that a reasonable juror would have convicted him of the crimes as charged. Also, as we indicated earlier, the Third Circuit affirmed his conviction. We, therefore, conclude that Fake is procedurally barred from challenging his guilty plea through a § 2255 motion. Even if he was not procedurally ...