Lattisaw v. United States, Criminal Action No. ELH-15-345
| Decision Date | 18 September 2018 |
| Docket Number | Criminal Action No. ELH-15-345 |
| Parties | CALELAH JOHN LATTISAW, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — District of Maryland |
CALELAH JOHN LATTISAW, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.
Criminal Action No. ELH-15-345
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
September 18, 2018
(Related Civil Action No. ELH-17-060)
MEMORANDUM OPINION
This Memorandum Opinion resolves a "Motion to Vacate, Set Aside, or Correct Sentence" (ECF 65), filed under 28 U.S.C. § 2255 by Calelah John Lattisaw, the self-represented petitioner. It is supported by a memorandum of law (ECF 65-1) (collectively, the "Petition"). Lattisaw has also filed a "MOTION FOR LEAVE TO FILE AMENDED AND SUPPLEMENTAL PLEADINGS." See ECF 66 ("Motion to Amend") (capitalization in original).
Additionally, Lattisaw submitted filings styled "Supplemental Pleading Rule 15(d)" (ECF 72); "Fed. R. Civ. Pro. Rule 15 Amended and Supplemental Pleadings 15(d) Motion" (ECF 77); and "Motion for Judgment on Partial Findings For Movant's 28 U.S.C.S. [sic] § 2255 Claim (Fed. R. Civ. P. 52(c))." ECF 79. Lattisaw also seeks a transcript from August 24, 2016, at government expense. ECF 68. And, he seeks the appointment of counsel. ECF 67.
The government opposes the Petition (ECF 73, "Opposition"), and has filed two exhibits. See ECF 73-1; ECF 73-2. Lattisaw has replied (ECF 76, "Reply"), and he provided additional exhibits. ECF 76-1; ECF 76-2; ECF 76-3.
I am mindful that 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
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'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) (noting that a self-represented litigant's submissions are to be liberally construed); see also 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).
Because Lattisaw is proceeding without counsel, I shall construe Lattisaw's supplemental filings as amendments to the Petition. For the purpose of this Memorandum Opinion, I shall refer to ECF 72, ECF 77, and ECF 79 collectively as the "Supplemental Filings."
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. . . ." United States v. LeMaster, 403 F.3d 216, 220-23 (4th Cir. 2005); 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).
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No hearing is necessary to resolve this matter. For the reasons that follow, I shall deny the Petition. A Certificate of Appealability shall not issue.
On an unspecified date, Lattisaw applied for Social Security Administration ("SSA") Supplemental Security Income ("SSI"), on the basis that he was disabled due to a diagnosis of schizophrenia. ECF 47 at 8. The SSI Application notified Lattisaw that he was required to inform the SSA of any change regarding his "living situation, resources, or income." Id. At the time, Lattisaw was living with two other individuals who were receiving SSA benefits, a fact he did not disclose. Id. Further, Lattisaw represented to the SSA that he had no other income. Id. However, "Lattisaw took several steps to hide additional income and assets" from the SSA. Id.
Lattisaw began receiving benefits from the SSA in February 1993. ECF 47 at 8. During 1997, Lattisaw was living with his sister-in-law, S.L.2, who received "Survivor Insurance Benefits" from the SSA, and a "D.C. pension" administered by the U.S. Treasury. Id. S.L. received benefits "via direct deposit into an Industrial Bank account in S.L.'s name." Id. Lattisaw was added as a co-signor on S.L.'s Industrial Bank account under the alias "John H. Lattisaw." Id. Additionally, Lattisaw used the Social Security Number of B.K. for his own on the account. Id. S.L. died on November 23, 1997, and Lattisaw failed to alert either the SSA or the U.S. Treasury of her death. The SSA and the U.S. Treasury continued to deposit benefits into S.L.'s Industrial Bank Account until 2010, amounting to $44,962.00 from the SSA and $593,344.22 from the U.S. Treasury. Id.
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Lattisaw withdrew "substantially all" of these benefits from the Industrial Bank Account via "ATM withdrawals and debit purchases." Id. Each time Lattisaw "made a purchase or withdrawal Lattisaw caused Industrial Bank, located in Washington D.C., to communicate, via interstate wire, with the point of purchase to approve the withdrawal or purchase." Id. at 8, 9. Lattisaw failed to inform the SSA of income he was receiving from S.L.'s benefits. Id. at 9.
In 2003, Lattisaw married an elderly woman, M.B., and attempted to sell her house. Id. at 9. M.B.'s family "blocked the sale and annulled the marriage." Id. However, in 2006, Lattisaw "moved M.B. out of her nursing facility and into the home [Lattisaw] shared with his girlfriend." Id. He then remarried M.B. and took "power of attorney over M.B.'s bank account." Id. Once again, he did not alert the SSA of these changes in his living arrangement or in his income. Id. Lattisaw was added as a co-signor to M.B.'s bank account, again using the alias "John H. Lattisaw" and B.K.'s Social Security Number, "thereby preventing the SSA from locating the additional income." Id.
M.B. died on June 16, 2006. ECF 47 at 9. Subsequently, Lattisaw "liquidated a Certificate of Deposit in M.B.'s PNC account and removed $161,000." Id. at 9. He then opened a new bank account using B.K.'s Social Security Number and the alias "John H. Lattisaw". Id. Lattisaw failed to report this income to the SSA. Id. From 2000 to 2015, Lattisaw received $110,107.00 in SSI benefits "to which he was not entitled." Id.
On June 17, 2015, Lattisaw was indicted on three counts of wire fraud, and aiding and abetting, in violation 18 U.S.C. §§ 1343 and 2. He was also charged with two counts of Social Security Benefit fraud, in violation of 42 U.S.C. § 408(a)(4)(ii) and 42 U.S.C. § 1383a(a)(3)(A). ECF 1.
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On May 16, 2016, Lattisaw entered a plea of guilty to Count One, charging wire fraud, in violation of 18 U.S.C. § 1343. See ECF 46; see also ECF 71. The plea was entered pursuant to a Plea Agreement, docketed at ECF 47. Notably, the plea was entered under Fed. R. Crim. P. 11(c)(1)(C), in which the parties stipulated to a sentence of 36 months' imprisonment with three years' supervised release. Id. at 4. Additionally, the parties stipulated to the entry of a restitution order in the amount of $748,403.22. Id. at 5.
Sentencing was held on August 24, 2016. ECF 60. The Court determined that the defendant's offense level was 22, with a criminal history category of I. His advisory guidelines range called for a sentence of incarceration ranging between 41 and 51 months of incarceration. But, the Court accepted the C Plea, and sentenced Lattisaw to 36 months' imprisonment and three years of supervised release. See ECF 61 (Judgment) at 2. Counts Two through Five of the Indictment were dismissed on motion of the Government. See ECF 61. Lattisaw did not note an appeal to the United States Court of Appeals for the Fourth Circuit. See Docket in 15-cr-00345.
On January 9, 2017, Lattisaw filed the Petition. ECF 65. He subsequently filed several additional motions. ECF 72; ECF 76; ECF 77; ECF 79. In sum, Lattisaw sets forth four arguments: (1) the underlying charges of wire fraud and aiding and abetting are invalid, (2) his guilty plea was unknowing and involuntary, (3) he received ineffective assistance of counsel, for various reasons, and (4) restitution is not proper in this case.3
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Additional facts are included in the Discussion.
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" if the petitioner shows "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."
In the Petition (ECF 65) and in the Supplemental Filings, (ECF 72), Lattisaw argues that his "due process rights were infringed" because the Indictment lacked a "plain, concise, and definite written statement of facts constituting the offense charged. . . ." ECF 65-1 at 1. Further, Lattisaw argues that "[h]is actions did not add up to federal wire fraud," because he was under no duty to disclose, and "'there is no evidence that Mr. Lattisaw misled anyone about any material facts or promises about future actions.'" ECF 72 at 2.
As the government argues, Lattisaw is precluded from challenging the validity of his Indictment because of his guilty plea. See ECF 73 at 6. The Supreme Court explained in ...
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