United States District Court, D. Maryland
Lipton Hollander United States District Judge.
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. 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.
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”). The government opposes the Petition.
ECF 675 (“Opposition”). Sodipo has replied (ECF
679, “Reply”), and has included an Affidavit.
Id. at 12-14.
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
Factual and Procedural Background
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; 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.
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.
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
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.
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.
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.
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.
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).
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.
facts are included in the Discussion.
Standard of Review
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).
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).
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.
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
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.
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).
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
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
consider, sua sponte, whether Sodipo's release
from incarceration and/or the expiration of his term of
supervised release has rendered his Petition
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
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
“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.
Lane, 455 U.S. at 631-32, the Supreme Court
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. ...