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Sodipo v. United States

United States District Court, D. Maryland

November 17, 2016

UNITED STATES OF AMERICA, Respondent Crim. No. ELH-06-0444


          Ellen Lipton Hollander United States District Judge.

         Following a lengthy trial by jury, Steven Abiodun Sodipo and his codefendant, Callixtus Nwaehiri, were convicted on July 31, 2008, of various offenses, including conspiracy to distribute and possess with intent to distribute hydrocodone, under 21 U.S.C. § 846.[1] ECF 480; ECF 498. On December 12, 2008, Chief Judge Benson E. Legg sentenced Sodipo to 60 months' imprisonment, followed by two years of supervised release. ECF 488; ECF 498.[2]

         On September 30, 2013, Sodipo, who is now self-represented, filed a petition to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255 (ECF 672), along with a supporting memorandum and exhibits. See ECF 672-1 to ECF 627-9. A redacted petition (ECF 673) was also submitted, along with a supporting memorandum (ECF 673-1) and several exhibits (ECF 673-2 to ECF 673-9) (collectively, “Petition”).[3] The government opposes the Petition. ECF 675 (“Opposition”). Sodipo has replied (ECF 679, “Reply”), and has included an Affidavit. Id. at 12-14.[4]

         Under 28 U.S.C. § 2255(b), a hearing is required “[u]nless the motion and the files and the records of the case conclusively show that the prisoner is entitled to no relief....” This is such a case; no hearing is necessary. For the reasons that follow, I shall deny the Petition.

         I. Factual and Procedural Background

         Sodipo was a licensed pharmacist in Maryland and, along with Nwaehiri, he was a part owner and operator of NewCare Home Health Services, Inc., also known as NewCare Pharmacy (“NewCare”). See Joint Appendix (“JA”) at 976-78;[5] ECF 682 at 1. 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 673-1 at 3; ECF 675 at 4-5. Patients from all 50 states contacted the Florida Headquarters; 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 675 at 3, 5. 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”), 21 U.S.C. § 801 et seq. See ECF 675 at 3, 8-9; see, e.g., JA at 1460; JA at 1489.

         On October 4, 2006, Sodipo and several others were indicted on one count of conspiracy to distribute and possess with intent to distribute a controlled substance, “outside the scope of professional practice and not for a legitimate medical purpose, ” i.e., “at least eight (8) million dosage units of hydrocodone. . . .” ECF 1 at 1 (Indictment); see also ECF 675 at 1. On September 19, 2007, a Superseding Indictment was filed as to multiple defendants, charging additional crimes. ECF 177 (Superseding Indictment); see also ECF 675 at 1-2.

         At trial, the government produced evidence that various warning signs alerted, or should have alerted, Sodipo and his coconspirators to the fact that many of NewCare's customers were abusing hydrocodone, and that the prescriptions completed by the Florida Headquarters were not for legitimate medical needs. 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, who were NewCare customers, were addicted to hydrocodone. JA at 883-84; JA at 1080-81; JA at 1085. Fed-Ex called to complain about deliveries in neighborhoods with heavy drug use. JA at 889.

         Notably, NewCare received “two to ten” after-hours calls a night from hysterical customers who had not received their drugs or had received incorrect pill counts. Supp. Joint App'x (“SJA”) at 101-102. Sodipo was aware of these calls. JA at 884-90. In addition, staff members expressed concern to Sodipo and Nwaehiri 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 the Florida-based medical providers who prescribed the hydrocodone. JA at 1381-86; SJA at 83; JA at 879-890; JA at 973. Sodipo also made misrepresentations about the nature of NewCare's business to state regulators, NewCare's suppliers, and NewCare's staff. See, e.g., JA at 990-91; JA at 1385-86; SJA at 85; JA at 853-57; SJA at 164-65; SJA at 136-37; JA at 1210-11.

         On July 31, 2008, after an eight-week trial before then Chief Judge Benson E. Legg, a jury convicted Sodipo 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 21 U.S.C. § 841(a) and 18 U.S.C. § 2; conspiracy to launder monetary instruments and two counts of money laundering, in violation, respectively, of 18 U.S.C. §§ 1956(h) and 1957(a); and filing a false tax return, in violation of 26 U.S.C. § 7206(1). See ECF 480, ECF 498; see also ECF 177.

         Judge Legg held a sentencing hearing on December 2, 2008. ECF 45. It resumed on December 12, 2008. ECF 488. See also ECF 498 (Judgment). As noted, Sodipo received a sentence of five years' imprisonment. ECF 488; ECF 498.

         On December 17, 2008, Sodipo appealed his conviction and sentence to the Fourth Circuit. ECF 489. Nwaehiri also appealed. Both argued that the trial court erred in denying the defendants' motion for a mistrial on grounds that a government witness testified about evidence the Court had ruled inadmissible, and that the prosecutor had made improper statements during closing arguments. United States v. Sodipo, 467 F. App'x 161, 162-63 (4th Cir. 2012) (per curiam), cert. Denied, ___ U.S. ___, 133 S.Ct. 281 (2012), and cert. Denied, ___ U.S. ___, 133 S.Ct. 457 (2012). The defendants also argued that the District Court erred in denying their motion for 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.” Sodipo, 467 F. App'x at 163. Sodipo's appellate counsel was also his trial counsel.

         The Fourth Circuit affirmed the defendants' convictions. Id. Sodipo's petition for writ of certiorari was denied by the Supreme Court on October 1, 2012. Sodipo v. United States, ___ U.S. ___, 133 S.Ct 281 (2012). On September 30, 2013, Sodipo timely filed his Petition. ECF 672; ECF 673. See 28 U.S.C. 2255(f) (providing a one-year limitations period for the filing of a petition, dating from the date of finality of the judgment).

         As noted, this case was reassigned to me on January 28, 2016. See Docket. By that point, Sodipo's two-year period of supervised release had expired. Therefore, by Order of March 18, 2016 (ECF 691), I asked Sodipo to advise the Court whether he wished to pursue his Petition. Id. The Clerk docketed correspondence from Sodipo on April 4, 2016, advising the Court of his desire to pursue his Petition. ECF 693.

         Additional facts are included in the Discussion.

         II. Standard of Review

         Pursuant to 28 U.S.C. § 2255(a), a prisoner in federal custody may “move the court which imposed the sentence to vacate, set aside or correct the sentence, ” but only on certain grounds: “that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. . . .” See also United States v. Newbold, 791 F.3d 455, 459 (4th Cir. 2015).

         Collateral attack is not a substitute for direct appeal; failure to raise certain issues on direct appeal may render them procedurally defaulted on post-conviction review. United States v. Frady, 456 U.S. 152, 165 (1982); accord Bousely v. United States, 523 U.S. 614, 630 (1998). As a general rule, a petitioner who fails to raise a claim on direct appeal is barred from raising the claim on collateral review. Sanchez-Llamas v. Oregon, 548 U.S. 331, 350-51 (2006). However, this bar generally does not apply to claims pertaining to ineffective assistance of counsel. See, e.g., Massaro v. United States, 538 U.S. 500, 503-04 (2003).

         Under 28 U.S.C. § 2255(b), the post-conviction court must hold a hearing “[u]nless the motion and the files and records conclusively show that the prisoner is entitled to no relief. . . .” See, e.g., United States v. White, 366 F.3d 291, 302 (4th Cir. 2004). Courts have determined that a hearing is not necessary where “the motion . . . fail[s] to allege sufficient facts or circumstances upon which the elements of constitutionally deficient performance might properly be found [or] where the defendant has failed to present any affidavits or other evidentiary support for the naked assertions contained in his motion.” United States v. Taylor, 139 F.3d 924, 933 (D.C. Cir. 1998) (internal quotation marks and citation omitted); accord United States v. McGill, 11 F.3d 223, 225-26 (1st Cir. 1993). On the other hand, a hearing is generally “required when a movant presents a colorable Sixth Amendment claim showing disputed material facts and a credibility determination is necessary to resolve this issue.” United States v. Robertson, 219 Fed. App'x 286, 286 (4th Cir. 2007); see also United States v. Ray, 547 Fed. App'x 343, 345 (4th Cir. 2013).

         Of course, a self-represented litigant is generally “held to a ‘less stringent standard[ ]' than is a lawyer, and the Court must liberally construe his claims, no matter how ‘inartfully' pled.” Morrison v. United States, RDB-12-3607, 2014 WL 979201, at *2 (D. Md. Mar. 12, 2014) (internal citations omitted); see Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972) (stating that claims of self-represented litigants are held “to less stringent standards than formal pleadings drafted by lawyers”); Bala v. Commonwealth of Va. Dep't of Conservation & Recreation, 532 F. App'x 332, 334 (4th Cir. 2013) (per curiam) (same). Nevertheless, I am satisfied that no hearing is necessary to resolve Sodipo's claims.

         III. Discussion


         The Petition contains three principal contentions, two of which are related. First, Sodipo contends that the District Court committed a “constitutional error” when it denied his motion for a mistrial because of an alleged grudge between the Court and defense counsel. ECF 673-1 at 4. Second, he claims ineffective assistance of counsel because his trial counsel failed to investigate and articulate a proper and adequate defense based upon provisions of Florida Board of Medicine Regulations and telemedicine practices that govern the practice of prescribing medication via the Internet. ECF 673-1 at 6. Finally, Sodipo claims his counsel failed to object to erroneous jury instructions that omitted the Florida Regulations. ECF 673-1 at 9-10.

         As a preliminary matter, in his Reply, Sodipo seeks leave to adopt codefendant Nwaehiri's opening and reply briefs, in their entirety, as to Nwaehiri's § 2255 proceedings. ECF 679 at 2. Two of the three issues raised by Sodipo in this Petition were also raised by Nwaehiri in his § 2255 petition, namely the claim of ineffective assistance of counsel, albeit a different lawyer, and the claim as to the alleged erroneous jury instructions. However, Nwaehiri raised three claims that Sodipo has not asserted: 1) that his counsel did not move for administrative resolution of his case; 2) that his counsel developed a conflict of interest; and (3) that the prosecution committed a violation under Brady v. Maryland, 373 U.S. 83 (1963), by failing to inform the Court and the jury of the Florida Regulations. See Nwaehiri v. United States, WDQ-13-09903, 2014 WL 1800404, at *2 (D. Md. May 5, 2014).

         Nwaehiri's claim of a conflict of interest on the part of his lawyer is not applicable to Sodipo, as Sodipo and Nwaehiri did not share the same trial counsel. And, the Fourth Circuit has stated: “It is a well settled rule that contentions not raised in the argument section of the opening brief are abandoned.” United States v. Al-Hamdi, 356 F.3d 564, 571 n. 8 (4th Cir. 2004) (declining to consider argument first raised in reply brief); see also United States v. Williams, 445 F.3d 724, 736 n. 6 (4th Cir. 2006) (declining to consider an argument raised for the first time in the reply brief); Hanlin-Cooney v. Frederick Cnty., Md., 2014 WL 576373, at *11 n. 32 (D. Md. Feb. 11, 2014) (declining to consider an argument first raised in reply brief). The rationale behind this general principle is that that the opposing party would be prejudiced by a consideration of the argument absent an opportunity to respond. See Clawson v. FedEx Ground Package Sys., Inc., 451 F.Supp.2d 731, 735 (D. Md. 2006) (citing United States v. Head, 340 F.3d 628, 630 n. 4 (8th Cir. 2003)).

         In its Opposition to Sodipo's Petition, the government of course did not address the three additional arguments that Nwaehiri had raised. However, the government did respond to those arguments in the context of its opposition to Nwaehiri's § 2255 petition. See ECF 666 (“Nwaehiri Opposition”). Moreover, the contentions were considered by Judge Quarles and rejected. ECF 682; 2014 WL 1800404, at *5-6. Therefore, I decline to allow Sodipo to use his Reply as a vehicle to adopt Nwaehiri's opening and reply briefs.

         B. Mootness

         I next consider, sua sponte, whether Sodipo's release from incarceration and/or the expiration of his term of supervised release has rendered his Petition moot.[6]

         Sodipo was released from prison on June 21, 2013, and at that point he began a two-year term of supervised release. Thus, he was on supervised release when he filed his Petition on September 30, 2013. See, e.g., ECF 671. Sodipo's term of supervised release expired on June 20, 2015 (see, e.g., ECF 671). However, he was “in custody” for purposes of § 2255 at the time he filed his Petition.

         “Whether an individual is in custody for § 2255 purposes is determined at the time the habeas action is filed . . . . The fact that custody expires after the habeas action is filed is irrelevant.” United States v. Bryson, 981 F.2d 720, 726 (4th Cir. 1992); see United States v. Pregent, 190 F.3d 279, 283 (4th Cir. 1999) (“A prisoner on supervised release is considered to be “in custody” for purposes of a § 2255 motion.”); see also Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam) (“We have never held . . . that a habeas petitioner may be ‘in custody' under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed.”) (emphasis in original); Carafas v. LaVallee, 391 U.S. 234, 238 (1968) (“The federal habeas corpus statute requires that the applicant must be ‘in custody' when the application for habeas corpus is filed.”).

         Generally, “expiration of [the] sentence does not moot the action” unless “‘there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.'” Bryson, 981 F.2d at 726 (citation omitted). However, when a petitioner “does not challenge the validity of his underlying convictions, ” a § 2255 petition is “moot” when the petitioner has “completely served his sentence which his motions attack[.]” United States v. Caputo, 972 F.2d 342, 1992 WL 180147 (4th Cir. July 29, 1992) (per curiam) (unpublished table decision) (citing Lane v. Williams, 455 U.S. 624 (1982)).

         In Lane, 455 U.S. at 631-32, the Supreme Court explained:

Since respondents elected only to attack their sentences, and since those sentences expired during the course of these proceedings, this case is moot.
In Carafas [v. LaVallee, 391 U.S. 234 (1968)] we held that an attack on a criminal conviction was not rendered moot by the fact that the underlying sentence had expired. On the basis of New York law, we noted that “[i]n consequence of [the petitioner's] conviction, he cannot engage in certain businesses; he cannot serve as an official of a labor union for a specified period of time; he cannot vote in any election held in New York State; he cannot serve as a juror.” Id., at 237, 88 S.Ct., at 1559 (footnotes omitted). These substantial civil penalties were sufficient to ensure that the litigant had “‘a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him.' ” Ibid. (quoting Fiswick v. United States, 329 U.S. 211, 222, 67 S.Ct. 224, 230, 91 L.Ed. 196). In Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. ...

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