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United States v. Morris

November 22, 2010

UNITED STATES OF AMERICA
v.
DEBORAH MORRIS, DEFENDANT



The opinion of the court was delivered by: Stengel, J.

MEMORANDUM OPINION

On December 7, 2006, following a jury trial, Deborah Morris was convicted of health care fraud, mail fraud, and making a false statement in a health care proceeding. She has filed a pro se petition for relief pursuant to 28 U.S.C. § 2255. For the reasons set forth below, I will deny the petition.

I. Procedural History

On October 25, 2005, a grand jury in the United States District Court for the Eastern District of Pennsylvania returned an indictment charging Deborah Morris with 34 counts of health care fraud, in violation of 18 U.S.C. § 1347, 14 counts of mail fraud, in violation of 18 U.S.C. § 1341, and one count of making a false statement in a health care proceeding, in violation of 18 U.S.C. § 1035. Trial commenced on November 27, 2006, and, on December 7, 2006, the jury found Ms. Morris guilty on all charges.

On October 23, 2007, Ms. Morris was sentenced to a term of 60 months imprisonment and a term of three years supervised release. Ms. Morris was ordered to pay restitution to Medicare in the amount of $278,507.05 and a special assessment of $4,900.00. The court entered judgment on November 6, 2007. Ms. Morris timely appealed, alleging there was insufficient evidence for the jury to return a guilty verdict for healthcare fraud and there was insufficient evidence to support the allegations in the indictment and the requirements of the mail fraud statute. See Brief for Appellant Deborah Morris at 3, United States v. Morris, 07-4528 (3d Cir. filed June 8, 2009). On April 16, 2010, the United States Court of Appeals for the Third Circuit affirmed her conviction and sentence.

On July 9, 2008, Ms. Morris filed a pro se petition for relief under 28 U.S.C. § 2255. On July 22, 2008, the Court ordered Ms. Morris to complete the standard § 2255 form within 45 days. Ms. Morris filed the form and a memorandum in support of her petition on October 7, 2008. On February 27, 2009, Ms. Morris's petition was denied because her direct appeal was pending.

On May 17, 2010, after the Third Circuit affirmed her conviction and sentence, Ms. Morris filed a motion for the Court to hear the § 2255 motion that previously had been denied. On May 25, 2010, the Court granted Ms. Morris's motion and ordered the Government to file a response.

Ms. Morris's § 2255 petition alleges: (1) counsel ineffectiveness for failing to conduct an adequate investigation; (2) counsel ineffectiveness for failing to review discovery materials with Ms. Morris; (3) counsel ineffectiveness for failing to present evidence in Ms. Morris's defense at trial; (4) counsel ineffectiveness for failing to know other civil remedies could be used to address the charges against Ms. Morris; (5) counsel ineffectiveness for failing to show Ms. Morris a witness list before trial; (6) counsel ineffectiveness for failing to challenge the credibility of witnesses and their testimony; (7) counsel ineffectiveness for stipulating to incorrect information and refusing to correct errors pertaining to the stipulation; (8) counsel ineffectiveness because the attorney who gave the closing argument was not the attorney who tried the remainder of her case; (9) counsel ineffectiveness for failing to allow her to testify at trial; (10) a Due Process violation concerning jury selection; and (11) the Government knowingly presented perjured testimony. See Memorandum in Support of Habeas Corpus Motion Under 28 U.S.C. § 2255, United States v. Morris, No. 05-cr-613-1, No. 08-cv-3233 (E.D. Pa. filed Oct. 7, 2008) [hereinafter Petitioner's Memorandum].

II. Facts

Ms. Morris founded D.N. Morris and Associates, a business which provided social work services to children. D.N. Morris and Associates used independent contractors, including psychiatrists, psychologists, and behavioral consultants, to provide the services.

In 1997 Ms. Morris obtained a Medicare provider number as an individual and for her business. Medicare is the federal health insurance program for the elderly, the blind, and the disabled. Ms. Morris's application for a provider number contained a false Social Security number and a false statement that she graduated from the University of Pennsylvania. Ms. Morris submitted a falsified social worker license, altering another person's social worker license to show Ms. Morris's name.

Ms. Morris submitted 5,021 claims for services which allegedly were provided to 59 Medicare beneficiaries from January 1, 1997 through December 31, 2002. The claims totaled $964,454.17, of which Medicare paid $278,507.05. The claims certified that D.N. Morris and Associates provided psychotherapy services to the 59 beneficiaries. The services, however, were never provided. Several of the supposed beneficiaries testified at trial that they did not receive psychotherapy services from D.N. Morris and Associates or from anyone who worked for D.N. Morris and Associates. Three of the beneficiaries were deceased at the time D.N. Morris and Associates allegedly provided services to them, another three were in the hospital.

In June 2002, a hearing officer for Medicare held an enrollment hearing by telephone with Ms. Morris and her daughter Davonne Roye. The Medicare carrier had revoked the provider numbers for Ms. Morris and D.N. Morris and Associates. Ms. Morris had appealed the revocations. The telephone conversation was recorded and was played at the trial. The hearing officer affirmed the revocation of Ms. Morris's number, finding Ms. Morris was not a licensed clinical worker. He also affirmed the revocation of D.N. Morris and Associates' number because the group was based on Ms. Morris and Dr. Kimberly Walker, and only Dr. Walker was an eligible provider.

III. Discussion

A prisoner in custody may move the sentencing Court "to vacate, set aside, or correct" a sentence imposed "in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. Section 2255 "permits relief for an error of law or fact only where the error constitutes a 'fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Eakman, 378 F.3d 294, 298 (3d Cir. 2004) (quoting United States v. Addonizio, 442 U.S. 178, 185 (1979)).

A. Counsel Ineffectiveness Claims

To establish a claim of ineffective assistance of counsel, a petitioner must show (1) "counsel's performance was deficient" and (2) "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984); accord Rainey v. Varner, 603 F.3d 189, 197 (3d Cir. 2010) (noting ineffectiveness claims are "governed by the familiar two-prong test set forth in Strickland[]" (quoting Shelton v. Carroll, 464 F.3d 423, 438 (3d Cir.2006)). To prove counsel's performance was deficient, petitioner must show "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Rainey, 603 F.3d at 197 (quoting Strickland, 466 U.S. at 687). To establish prejudice, the petitioner must show "counsel's errors were so serious as to deprive the defendant of a fair trial." Strickland, 466 U.S. at 486. "The defendant 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 sufficient to undermine confidence in the outcome." Rainey, 603 F.3d at 197 (quoting Strickland, 466 U.S. at 689).

1. Investigation

Ms. Morris claims her counsel was ineffective for failing to conduct an adequate investigation. She alleges counsel failed to thoroughly investigate the accuracy of the allegations and failed to conduct a comprehensive interview of Ms. Morris. See Petitioner's Memorandum at 13.

Ms. Morris fails to specify what evidence her counsel failed to investigate, and what information counsel would have uncovered had a more thorough investigation occurred. She attached documents to her petition, filed documents as an addendum, and filed additional documents with two motions to "adjoin" documents.*fn1 The attached documents contain, among other items, her applications for a medical provider number and the regulations governing Medicare. These documents do not establish her counsel did not conduct an investigation. Moreover, Ms. Morris cannot establish prejudice. The documents do not undermine the jury's verdict and Ms. Morris fails to establish the outcome of her trial would have been different if the documents had been entered into evidence. Ms. Morris's ineffectiveness claim for failing to investigate is meritless.

2. Review of Discovery Materials

Ms. Morris alleges her counsel failed to review discovery materials with her. Petitioner's Memorandum at 13. Her petition is vague and conclusory, and it fails to specify which ...


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