ORDER ACCEPTING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE
No objections having been filed to the Magistrate Judge's RecommendedDecision filed October 24, 2002 the Recommended Decision is accepted.
Accordingly, it is ORDERED that the petition filed pursuant to28 U.S.C. § 2255 is DENIED.
RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION
Peter Morin-Smith was sentenced to twenty-seven months ofimprisonment, three years of supervised release, and was ordered to pay$392,922 in restitution after pleading guilty to one count of health carefraud in violation of 18 U.S.C. § 1347. He took no direct appeal.Rather, Morin-Smith has filed a timely 28 U.S.C. § 2255 motion forhabeas relief from the December 3, 2001, judgment. (Docket No. 38.) TheUnited States has responded. (Docket No. 46.) For the reasons articulatedbelow, I recommend that the Court DENY Morin-Smith's motion.
During the period of October 1997 to June 2001 Morin-Smith was employedas the Chief Financial Officer of Commonsense Housing, Inc. (CHI), anentity that provides assisted housing and medical care for handicappedindividuals. Medicaid reimbursed CHI for some health-care servicesprovided to CHI's Medicaid-eligible clients, a dynamic that generated thefederal criminal prosecution.1 For approximately a three-year periodMorin-Smith wrote unauthorized payroll checks to himself.
Morin-Smith asserts there are two grounds that entitle him to relieffrom his sentence. First he argues that the sentencing judge's decisionto allow at the sentencing hearing the testimony of the victims ofMorin-Smith's fraud was in contravention of Federal Rule of CriminalProcedure 32(c)(3). The second ground disputes the $392,992 restitutionamount both in terms of the restitution requirement and the role thefigure played in increasing the length of Morin-Smith's sentence.
Challenges to sentences under § 2255 can be brought only,
upon the ground 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.
28 U.S.C. § 2255 ¶ 1.
Morin-Smith does not describe his challenges as falling under theconstitution nor does he contend that the Court lacked jurisdiction tosentence him. With respect to the remaining grounds for § 2255relief, the First Circuit explained in United States v. UnitedStatesKnight, 37 F.3d 769, 772 (1st Cir. 1994):
While the statutory language is rather general, the Supreme Court has narrowly confined the scope and availability of collateral attack for claims that do not allege constitutional or jurisdictional errors. Such claims are properly brought under § 2255 only if the claimed error is "a fundamental defect which inherently results in a complete miscarriage of justice" or "an omission inconsistent with the rudimentary demands of fair procedure." Hill [v. United States], 368 U.S. [424,] 428 [(1962)]. The error must "present exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent." Id. (quoting Bowen v. Johnston, 306 U.S. 19, 27 (1939)); see Fasano v. Hall, 615 F.2d 555, 557 (1st. Cir.). . . . Errors warranting a reversal on direct appeal will not necessarily support a collateral attack. See United States v. Addonizio, 442 U.S. 178, 184-85 (1979).
37 F.3d at 772.
Knight was also a § 2255 case in which the movant had not pursued adirect appeal. The First Circuit's statement on this score is of somemoment to the disposition of Morin-Smith's motion:
The reason for so sharply limiting the availability of collateral attack for nonconstitutional, nonjurisdictional errors is that direct appeal provides criminal defendants with a regular and orderly avenue for correcting such errors. The Supreme Court has repeatedly emphasized that § 2255 is not a substitute for direct appeal. See, e.g., United States v. Frady, 456 U.S. 152, 165 (1982); Addonizio, 442 U.S. at 184-85; Sunal v. Large, 332 U.S. 174, 178 (1947). A nonconstitutional claim that could have been, but was not, raised on appeal, may not be asserted by collateral attack under § 2255 absent exceptional circumstances. See Stone v. Powell, 428 U.S. 465, 477 n. 10 (1976); Suveges v. United States, 7 F.3d 6, 10 (1st Cir. 1993) (applying cause and prejudice standard to procedural default of jurisdictional claim).
Id. at 772-73. See also Cofske v. United States, 290 F.3d 437, 441 (1stCir. 2002) ("Although the language of 28 U.S.C. § 2255 is quitegeneral, the Supreme Court has restricted collateral attack for claimsthat do not allege constitutional or jurisdictional errors; such claimsare said to be cognizable only where the alleged error presents "afundamental defect which inherently results in a complete miscarriage ofjustice" or "an omission inconsistent with the rudimentary demands offair procedure," quoting Hill v. United States, 368 U.S. 424, 428(1962)).
Related to this concern, as the United States points out, is the factthat Morin-Smith has also "procedurally defaulted" both grounds. It isuncontested that he failed to formally object to the testimony or therestitution amount at any point prior to this § 2255 motion, be it atthe sentence-related proceedings or on appeal. Thus, to the extent theseclaims are cognizable within the meaning of § 2255 ¶ 1, for the Courtto consider them here Morin-Smith must demonstrate "cause and prejudice"for this default. Derman v. United States, 298 F.3d 34, 45 (1st Cir.2002); Cody v. United States, 249 F.3d 47, 52 (1st Cir. 2001); see alsoProu v. United States, 199 F.3d 37, 42 (1st Cir. 1999) (applying "causeand prejudice standard to "waivable issues of statutory authorization").I do note that even if it is permissible to deny the claims because ofthe failure to raise them at trial and/or on direct review, the court canalso deny them because they are without merit without undertaking thecause and prejudice analysis. Tse v. United States, 290 F.3d 462, 465(1st Cir. 2002).2
A. Permissibility of Victim's Statements
With respect to his first ground, Morin-Smith contends that onewitness's emotional and tear-filled speech, combined with letters to thejudge written by CHI management, influenced the sentencing judge andresulted in a sentence in the high range of the United States SentencingGuidelines. His legal ground for this claim is premised on Federal Ruleof Civil Procedure 32(c)(3)(E) which requires a judge presiding over asentencing for a crime of violence or sexual abuse to personally addressthe victim, if present, and determine if the victim want to make astatement or present any information relating to the sentence.Fed.R.Crim.P. 32(c)(3)(E) (emphasis added).
Morin-Smith has misapprehended the operation of this provision. Thefact that the rule requires the judge to make this inquiry of the victimwhen sentencing for crimes of violence or sexual abuse does not mean thejudge is prohibited from allowing victim testimony or the presentation ofinformation vis-à-vis all other crimes.
The sentencing judge's broad discretion as to what information isconsidered in arriving at the sentence has been guarded by the UnitedStates Congress, 18 U.S.C. § 3661 ("No limitation shall be placed onthe information concerning the background, character, and conduct of aperson convicted of an offense which a court of the United States mayreceive and consider for the purpose of imposing an appropriatesentence.") and the First Circuit United States v. Berzon, 941 F.2d 8, 21(1st Cir. 1991) ("Generally, there is no limitation on the informationwhich a court may consider in sentencing other than that the informationbear sufficient indicia of reliability to support its probable accuracy,and evidence not ordinarily admissible under the rules of evidence attrial may be considered."). Given this latitude, just because Rule 32does not require the court to consider the victim testimony in every casethe law certainly does not prohibit this consideration. See United Statesv. Dominguez, 951 F.2d 412, 417 (1st Cir. 1991) (noting that, while theVictim and Witness Protection Act of 1982 required a court to considervictim impact information, the law prior to the enactment did notprohibit the consideration). Thus the consideration of this testimony isnot by any stretch "a complete miscarriage of justice" so as to make thisclaim cognizable under § 2255. Cofske, 290 F.3d at 441.3
B. The Setting of the Restitution Amount
1. The Direct Challenge to the Restitution Order
The First Circuit law is clear, even though Morin-Smith is "in custody"he cannot seek review of his restitution order through28 U.S.C. § 2255. Smullen v. United States, 94 F.3d 20, 26 (1st Cir.1996) ("[W]e hold that [a § 2255 movant] cannot challenge hisrestitution obligation in [a] § 2255 proceeding.").
2. The Impact of the Restitution Amount on the Sentence
Morin-Smith also challenges his restitution amount on the basis that itleads to an increase of his base-offense by nine levels under UnitedStates Sentencing Guideline 251.1(b)(1)(J) because the loss amount wasmore than $350,000 but less that $500,000. Morin-Smith explains that hehas not previously challenged the restitution calculations because heonly recently received the independent accountant's report andpre-sentence reports, his previous copies having been lost upon histransfer to Federal Custody in January 2002. He cites to eight errors inthe reports that he contends resulted in too high a restitution amount.
This challenge falls within the embrace of Knight as anonconstitutional, nonjurisdictional fact-finding error that could havebeen but was not raised on direct appeal. 37 F.3d at 772-73. Concernedwith the immigration consequence of a restitution judgment in excess of$10,000, Morin-Smith attempted to persuade the Sentencing Court that itcould frame the judgment as an order to return property to avoid enteringan order of restitution with a dollar amount. (Sentencing Tr. at 22-23.)The Court concluded that it did not have the authority to structure thejudgment in this fashion. (Id. at 23-24.)
The setting of restitution in this case was mandated by Congress. See18 U.S.C. § 3663A; United States Sentencing Guideline § 5E1.1. Ifany error was made in the calculation of the restitution amount it was"ordinary error" far short of a "complete miscarriage of justice."Knight, 37 F.3d at 773. At the close of his sentencing proceedingMorin-Smith was notified of his right to appeal. (Sentencing Tr. at47-48.) Morin-Smith had the reports available to him prior to sentencingand until his January 2002 transfer. This was the time critical toraising a challenge during sentencing or framing an appeal. "Havingbypassed his opportunity to raise the claim on direct appeal,"Morin-Smith "cannot raise it now on collateral attack." Id. at 773.Thus, this application-of-the-sentencing-guidelines claim is notcognizable under § 2255. Id.
For these reasons I recommend that the Court DENY Morin-Smith's28 U.S.C. § 2255 motion.
1. Section 1347 of title 18 provides:
Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice —
(1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program, in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than 10 years, or both. If the violation results in serious bodily injury (as defined in section 1365 of this title), such person shall be fined under this title or imprisoned not more than 20 years, or both; and if the violation results in death, such person shall be fined under this title, or imprisoned for any term of years or for life, or both.
18 U.S.C. § 1347.
2. The United States' first line of attack on Morin-Smith's § 2255motion is that, although he signed the statutory equivalent to the oathon the form — § 2255 motion he did not so sign his hand-writtenattachment that Morin-Smith directs the court to for his "supportingfacts." I do not recommend dismissal on this ground. I think it is fairto incorporate Morin-Smith's attachment into his sworn petition in lightof his reference to the attachment on the sworn form.
3. Though Morin-Smith raises this solely as a Rule 32 concern, claimsthat improper information was considered at sentencing can implicate theDue Process clause. United States v. Serhant, 740 F.2d 548, 552 (7thCir. 1984) ("[The sentencing judge's] authority is limited only by thedue process requirements that a sentence may not be set in reliance on"`improper or inaccurate information,'" quoting United States v. Harris,558 F.2d 366, 373 (7th Cir. 1977)). Even if Morin-Smith had developedthis as a constitutional concern in this § 2255 motion, his failureto raise the issue before or at sentencing and his decision not to take adirect appeal would warrant denial of the claim outright due to theprocedural default. Morin-Smith's contention that he has only just becomeaware of Rule 32(c)(3)(E) cannot satisfy the "cause" requirement forovercoming a procedural default for many reasons. Indeed, there is a wantof cause and prejudice on this basis for, as explained above, Rule32(c)(3)(E) is not grounds for the relief Morin-Smith seeks.