United States District Court, D. Maryland, Northern Division
WILLIAM D. QUARLES, Jr., District Judge.
Callixtus Onigbo Nwaehiri was convicted by a jury of drug distribution and other crimes. ECF Nos. 480, 500. On December 12, 2008, he was sentenced to 60 months imprisonment. ECF Nos. 488, 500. Pending are Nwaehiri's pro se motions: (1) to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, ECF No. 660; and (2) for reconsideration of the Court's previous order denying his request for discovery, ECF No. 669. No hearing is necessary. See Rule 8 of the Rules Governing § 2255 Proceedings. For the following reasons, Nwaehiri's motions will be denied.
Nwaehiri was a licensed pharmacist in Maryland and a part owner and operator of NewCare Home Health Services, Inc., also known as NewCare Pharmacy ("NewCare"). ECF No. 666 at 3. In 2005, NewCare contracted with a Florida-based distribution business (the "Florida headquarters"), which consisted of several corporations, to fill prescriptions over the Internet. See ECF Nos. 660-1 at 5, 666 at 4-5. Patients from all 50 states contacted the Florida headquarters online, Florida-based doctors employed by the Florida headquarters issued prescriptions to those patients without a face-to-face meeting, and NewCare filled the prescriptions. See ECF Nos. 666 at 3, 5; 670 at 18. The vast majority of the thousands of prescriptions filled by NewCare were for hydrocodone - a highly addictive prescription painkiller - which is classified as a Schedule III controlled substance under the Controlled Substances Act ("CSA"). See ECF No. 666 at 4, 8-9.
On October 4, 2006, Nwaehiri was indicted on one count of conspiracy to distribute and possession with intent to distribute a controlled substance "outside the scope of professional practice and not for a legitimate medical purpose." ECF Nos. 15, 666 at 1. On September 19, 2007, the government filed a superseding indictment, which charged Nwaehiri with additional crimes. See ECF Nos. 177, 666 at 1. On December 2, 2008, after an eight-week trial before then Chief Judge Benson E. Legg,  a jury convicted Nwaehiri of conspiracy to distribute and possess with intent to distribute hydrocodone, in violation of 21 U.S.C. § 846; six counts of distribution of hydrocodone and aiding and abetting, in violation of 18 U.S.C. § 2, 21 U.S.C. § 841(a); conspiracy to launder money and money laundering, in violation of 18 U.S.C. §§ 1956(h), 1957(a); and filing a false tax return, in violation of 26 U.S.C. § 7206(1). ECF Nos. 480, 500.
At trial, the government produced evidence that various warning signs alerted, or should have alerted, Nwaehiri and his co-conspirators that many of NewCare's customers were abusing hydrocodone, and that the prescriptions issued by the Florida headquarters were not for legitimate medical needs. See ECF No. 666 at 11, 13. For example, staff members testified that they received calls from angry and agitated customers complaining about slightly incorrect pill counts and from others complaining that their relatives - customers of NewCare - were addicted to hydrocodone. See id. at 11. Fed-Ex called to complain about deliveries in neighborhoods with heavy drug use. See id. Further, NewCare received hundreds of after-hours calls from hysterical customers who had not received their drugs or had received incorrect pill counts. See id. at 11-12. Nwaehiri was aware of these calls. See id. Also, staff members expressed concerns to Nwaehiri and the other owners of NewCare about the validity of the prescriptions they were filling, because the majority of the prescriptions were for hydrocodone and most of the patients did not live near their prescribing doctors. See id. at 14-15. Finally, Nwaehiri made many misrepresentations about the nature of NewCare's business to, inter alia, state regulators, NewCare's suppliers, and NewCare's staff. See id. at 13-15.
On December 19, 2008, Nwaehiri appealed his conviction and sentence. ECF No. 491. His counsel argued that the district court erred in denying the defendants' motion for a mistrial on grounds that a government witness testified about evidence the district court had ruled inadmissible, and the prosecutor had made improper statements during closing arguments. United States v. Sodipo, 467 F.App'x 161, 162-63 (4th Cir. 2012) cert. denied, 133 S.Ct. 281 , 184 L.Ed.2d 165 (U.S. 2012) and cert. denied, 133 S.Ct. 457 , 184 L.Ed.2d 280 (U.S. 2012). His counsel also argued that the district court erred in denying the defendants' motion for a new trial, "because the court failed to ensure that the jury began deliberations anew when the court replaced a juror with an alternate after deliberations were in progress." Id. at 163. The Fourth Circuit affirmed Nwaehiri's conviction and also denied his motion to file a pro se supplemental brief because he was represented by counsel on appeal. Id. In a footnote, the Fourth Circuit stated that, even if it had granted Nwaehiri's motion, its "review of the proposed brief persuades us that Nwaehiri fails to articulate claims that would warrant relief." Id. at 163 n. 2.
On March 22, 2013, Nwaehiri moved to vacate, set aside, or correct his sentence under § 2255. ECF No. 660. The same day, Nwaehiri moved for discovery, asserting that he had "made numerous allegations for which part of the transcripts will be required in support." ECF No. 661. On March 26, 2013, this case was reassigned to Judge William D. Quarles, Jr. On April 5, 2013, the Court denied Nwaehiri's motion for discovery. ECF No. 665.
On May 1, 2013, the government opposed Nwaehiri's § 2255 motion. ECF No. 666. On July 1, 2013, Nwaehiri moved for reconsideration of the Court's order denying his motion for discovery. ECF No. 669. On July 2, 2013, Nwaehiri replied to the government's opposition to his § 2255 motion. ECF No. 670.
Nwaehiri contends that he is entitled to relief under § 2255 because: (1) he received ineffective assistance of trial counsel when: (a) counsel did not investigate Florida Board of Medicine Regulations (the "Florida Regulations") that govern prescribing medication online, object to their absence in the jury instructions, or use them at trial in his defense; (b) counsel did not move for administrative resolution of his case; and (c) counsel developed a conflict of interest; (2) he received ineffective assistance of appellate counsel because his counsel failed to incorporate the Florida Regulations in his appellate brief as Nwaehiri requested; and (3) the prosecution committed a Brady violation by failing to inform the Court and the jury of the Florida Regulations. ECF No. 660-1.
A. Ineffective Assistance of Counsel
1. Legal Standard
The Sixth Amendment guarantees the effective assistance of trial and appellate counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); Evitts v. Lucey, 469 U.S. 387, 397, 105 S.Ct. 830, 837, 83 L.Ed.2d 821 (1985). To prove ineffective assistance, Nwaehiri must show: (1) counsel's performance was deficient and (2) the deficiency prejudiced his defense. Strickland, 466 U.S. at 687; Evitts, 469 U.S. at 392 ( Strickland standard applies to claims of ineffective assistance of appellate counsel). To show deficient performance, Nwaehiri must establish that counsel made errors so serious that the "representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. To show prejudice, he must demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "There exists a ...