The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
Presently before the Court is Gennaro Ritieni's ("Ritieni") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Ritieni requests that the Court vacate, set aside, or correct his sentence because his counsel, Anthony La Pinta, was ineffective in failing to object to purported errors contained in the Presentence Investigation Report ("PSR"). For the reasons discussed below, Ritieni's petition is denied.
Ritieni worked as an office manager and practitioner for Hanger Orthopedic Group, Inc. ("Hanger"), one of the leading providers of orthotic and prosthetic services and products. In his role as a practitioner, Ritieni would measure patients for various types of medical equipment, including braces, shoes, and limb replacements. Before reimbursing the cost of products and services furnished by Hanger, various health care benefit programs would require either a certificate of medical necessity or a valid prescription, signed by an authorized medical provider, affirming that the equipment prescribed was medically necessary for the patient.
According to the Information, Ritieni would take blank prescription forms, fill them in with the equipment to be ordered and then forge the signature of the patient's doctor. In some cases, the doctor had not seen the patient for whom the prescription was written. In other cases, where the doctor had prescribed certain equipment, Ritieni would include additional equipment on the prescription form that had not been prescribed. The benefit programs made payments to Hanger in reliance on Ritieni's false prescriptions and certificates of medical necessity.
On February 14, 2006, Ritieni waived indictment and was charged in a single-count Information with making false statements in relation to health care benefit programs, in violation of 18 U.S.C. §§ 1035(a)(1) and 1035(a)(2). Pursuant to a cooperation agreement with the Government, Ritieni pleaded guilty to the one-count Information on the same day.
The United States Probation Department ("Probation") issued a PSR on December 4, 2008. Probation calculated Ritieni's total offense level to be a level 13, and determined that he fit into Criminal History Category II. The total offense level included a two-level enhancement, based upon Probation's recommendationthat Ritieni abused a position of trust within the meaning of U.S.S.G. § 3B1.3. The resulting Guidelines range was 15 to 21 months.
Ritieni appeared before this Court for sentencing on August 14, 2009. Consistent with its usual practice, the Court inquired of both Ritieni and La Pinta whether they had reviewed the PSR. The Court also inquired into whether the PSR contained any errors. Both Ritieni and La Pinta confirmed that they had reviewed the PSR and stated that it did not contain any errors.
During the sentencing, La Pinta stressed that although Ritieni fell into Criminal History Category II, his prior convictions were for "petty offenses" and that he had very limited involvement with the criminal justice system. La Pinta pointed out that Ritieni had taken responsibility for his crime and noted that his substantial cooperation with the Government led to the arrest and conviction of another individual. In light of these factors and Ritieni's close relationship with his children and elderly parents, La Pinta requested that the Court impose a non-custodial sentence. Speaking on his own behalf, Ritieni also asked the Court to consider his family ties and personal characteristics. In addition, the Government emphasized Ritieni's substantial assistance.
The Court sentenced Ritieni to five months imprisonment and a three-year term of supervised release. Ritieni's sentence also included restitution in the amount of $37,212.88. Ritieni filed a timely notice of appeal. However, on October 21, 2009, he moved in the Second Circuit to stay the appeal during the pendency of the instant writ. Ritieni is currently scheduled to surrender to the Bureau of Prisons on August 5, 2010.
A. Whether Ritieni Waived His Right to Appeal Errors in the PSR
As a threshold matter, the Government argues that Ritieni waived his right to challenge perceived errors in the PSR because he failed to object to the purported errors at the time of his sentencing.Ritieni counters that the merits should be reached on collateral review because the basis for his petition is that counsel was constitutionally ineffective in failing to object to these errors. Although it is arguable that Ritieni has defaulted on at least some of the claims he now raises, the Court finds that his ...