Rush v. United States

999 F. Supp. 2d 1104, 2013 WL 6008684, 2013 U.S. Dist. LEXIS 161513
CourtDistrict Court, S.D. Illinois
DecidedNovember 13, 2013
DocketNo. 11-CV-336-WDS; No. 09-CR-30081-WDS
StatusPublished
Cited by1 cases

This text of 999 F. Supp. 2d 1104 (Rush v. United States) is published on Counsel Stack Legal Research, covering District Court, S.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rush v. United States, 999 F. Supp. 2d 1104, 2013 WL 6008684, 2013 U.S. Dist. LEXIS 161513 (S.D. Ill. 2013).

Opinion

ORDER

STIEHL, District Judge:

Petitioner Jeffrey Wayne Rush feigned paralysis to obtain a discharge from the United States Army, avoiding deployment to Iraq. He then fraudulently collected disability benefits from the Department of Veteran’s Affairs and the Social Security Administration. He used his supposed disability to bring a fraudulent lawsuit against an automobile manufacturer, obtaining a handicapped-equipped van. Petitioner is currently serving a 78-month prison sentence at the Federal Prison Camp in Millington, Tennessee. Now before the Court is his pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (Doc. 1), alleging ineffective assistance of counsel, and the government’s response (Doc. 5).

Background

Petitioner was in the United States Army, assigned to the 24th Transportation Company. The Company received notice that it would be deployed to Iraq in support of Operation Iraqi Freedom. Before deployment, petitioner was in an accident while on duty, and the vehicle he was in rolled over. Upon examination at several facilities, petitioner was evaluated for possible spinal-cord injury. He told medical professionals that he was unable to walk and that he had lost control of his bowel and bladder. They were not able to identify a physical cause for petitioner’s condition, however. The Army concluded that petitioner’s apparent paralysis was due to a conversion disorder.1 He was given a medical discharge. Petitioner had been able to walk all along, but feigned disability to avoid deployment and obtain the discharge.

Through his status as a medically retired veteran, petitioner and his wife were able to obtain medical care and benefits at reduced cost. Together they conspired to defraud the Department of Veterans Affairs (V.A.) and the Social Security Administration (S.S.A.). Petitioner repeatedly represented to both agencies that he was paralyzed. Over a period of about three years, petitioner and his wife obtained about $107,857 in benefits from the V.A. and $28,730 from the S.S.A.

They also conspired to defraud an automobile manufacturer and a manufacturer of safety equipment. They brought a products-liability lawsuit against the manufacturers claiming that defects in petitioner’s vehicle caused it to roll, leaving him paralyzed. Petitioner was able to obtain a handicapped-equipped van from the automobile manufacturer.

Petitioner was put under surveillance by federal agents. After gathering evidence and interviewing witnesses, the agents confronted petitioner at his home. Petitioner admitted that he could walk before his discharge from the Army, and he acknowledged his fraudulent schemes against the V.A., the S.S.A., and in the lawsuit. He was indicted and ultimately pleaded guilty to conspiracy to commit wire fraud involving the V.A., 18 U.S.C. §§ 1343, 1349; making a false statement to the S.S.A., 18 U.S.C. § 1001; and con[1107]*1107spiracy to commit mail fraud, 18 U.S.C. § 1341,1349, as well as mail fraud, § 1341, involving the lawsuit. He was given three concurrent sentences of 78 months and a fourth concurrent sentence of 60 months (Docs. 62, 65, Case No. 09-CR-30081). Petitioner signed a sentencing agreement waiving his right to contest any aspect of his conviction and sentence on appeal or in a collateral attack. He did not appeal.

Discussion

Relief under 28 U.S.C. § 2255 is “reserved for extraordinary situations.” Prewitt v. United States, 83 F.3d 812, 816 (7th Cir.1996) (citing Brecht v. Abrahamson, 507 U.S. 619, 633-34, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). A federal prisoner “claiming the right to be released 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” may move the sentencing court to vacate, set aside, or correct the sentence. § 2255(a).

To establish a claim of ineffective assistance of counsel under the Sixth Amendment, a prisoner must show (1) that “counsel’s performance fell below an objective standard of reasonableness,” and (2) that the prisoner’s defense was prejudiced, meaning “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington. 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the context of a guilty plea, prejudice means there is a reasonable probability that, but for counsel’s errors, the petitioner would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Morales v. Boatwright, 580 F.3d 653, 659 (7th Cir.2009). The court may evaluate either element (performance or prejudice) first and, if it finds one unsupported, need not consider the other. Strickland, 466 U.S. at 697, 104 S.Ct. 2052. Because counsel is presumed to be effective, the prisoner bears a heavy burden to establish ineffective assistance. Shell v. United States, 448 F.3d 951, 955 (7th Cir.2006); United States v. Trevino, 60 F.3d 333, 338 (7th Cir.1995).

Analysis

Petitioner makes the following allegations and claims premised on the denial of his Sixth Amendment right to counsel:

(1) His attorney failed to (a) interview the doctor who had diagnosed petitioner with conversion disorder, (b) challenge the voluntariness of petitioner’s confession to V.A. and S.S.A. agents, (c) research petitioner’s prior medical history, or (d) research petitioner’s products-liability lawsuit.
And, as a result of the attorney’s failure to investigate, petitioner claims that his presentence report was full of false information.
(2) His attorney neglected to prepare petitioner for testimony, establish any defenses, or communicate well with petitioner, which made him feel concern about his chances at trial. He believes his attorney was not even prepared for the possibility of going to trial. He also believes his attorney misled him2 about his potential sentence by telling him that if he went to trial he would be charged with an intended loss of $20 million, whereas petitioner says the government would have had to prove

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Bluebook (online)
999 F. Supp. 2d 1104, 2013 WL 6008684, 2013 U.S. Dist. LEXIS 161513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rush-v-united-states-ilsd-2013.