Show Temp

Case 1:11-cv-00088-DHB-WLB Document 1 Filed 06/15/11 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
JOHN DUNCAN FORDHAM,
PETITIONER, FILE NO.
VS.
UNITED STATES OF AMERICA,
PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. §2255 OR, IN

THE ALTERNATIVE, FOR THE ISSUANCE OF A WRIT OF ERROR CORAM NOBIS
NOW COMES JOHN DUNCAN FORDHAM (“Petitioner”) and pursuant to 28
U.S.C. §2255 brings this, his Petition for a Writ of Habeas Corpus Or, in the Alternative for the
Issuance of a Writ of Error Coram Nobis and, in support thereof, shows:
1. That the United States District Court for the Southern District of Georgia
entered a conviction on the 15th day of September 2205 [Case No. CR-104-051] following a jury
verdict on May 5, 2005, and Petitioner was sentenced to fifty-two (52) months and three (3)
years supervised release, and a fine of $1,022,000.
2. That the conviction and sentence was for healthcare fraud concerning a
federally funded program, which was based on honest services fraud component under 18 U.S.C.
§1346.
3. That Petitioner pled Not Guilty.
4. That Petitioner did not testify at the trial.
5. That his conviction was affirmed by the Eleventh Circuit on the 12th day
of March, 2007 in Case No. 05-15499 at 219 Fed. Appx. 963, 2007 WL 737960 (11 th Cir. 2007).
6. That Petitioner has filed no previous petitions for a writ of habeas corpus.
1
7. That this Petition is timely, in that it is being brought within one (1) year
from the date on which the Supreme Court of the United States has held that the statutes relating
to honest services are unconstitutional. See, 28 U.S.C. §2255, Skilling v. United States, 130
S.Ct. 2896 (2010).
8. That Petitioner has not procedurally defaulted, in that the Supreme Court
in Skilling, supra, has held that the honest services fraud component was unconstitutionally
overly broad and vague if it did not relate to bribery or kickbacks and cause exists for Fordham
not bringing up this issue on appeal because the issues in Skilling, supra, had not been addressed
by the Supreme Court and were unknown. Also, Fordham, has been prejudiced, in that he has
spent time in jail, has paid hundreds of thousands of dollars, is under supervised release and,
while on supervised release, he cannot have his license reinstated. Furthermore, he is actually
innocent.
9. That Petitioner attaches and incorporates by reference the attached Motion
To Vacate, Set Aside Or Correct his sentence [Exhibit “A” attached hereto], which is hereby
incorporated by reference and which states concisely every ground on which he is being held
unlawfully.
10. That none of these grounds were previously argued on appeal because at
the time of the appeal Skilling had not been decided.
11. That the lawyers who represented Petitioner at the jury trial were:
Andrew J. Ekonomou, Esq.

Ekonomou, Atkinson & Lambros, LLC
The Hurt Bldg.
50 Hurt Plaza, Suite 450
Atlanta, GA 30303
2
Adam Marshall Hames, Esq.

The Hames Law Firm LLC
511 E. Paces Ferry Road, NE
Atlanta, GA 30305
12. That there are no other convictions or sentences to be served by Petitioner.
WHEREFORE, for the reasons set forth in Exhibit “A” attached hereto, Petitioner
requests that the relief being sought in this Petition be granted and that his conviction be set
aside.
Respectfully submitted, this, the 15th day of June, 2011.
/s/JOHN B LONG ^^^^^^^^^^^^^^^^^^

JOHN B. LONG, ESQ.
Georgia State Bar No. 457200
Attorney for Petitioner
OF COUNSEL:
TUCKER EVERITT LONG BREWTON & LANIER

P. O. BOX 2426
453 GREENE STREET
AUGUSTA, GA 30903
(706) 722-0771
(706) 722-7028 Fax
3
CERTIFICATE OF SERVICE
This is to certify that the foregoing Petition For Writ Of Habeas Corpus Pursuant
To 28 U.S. C. §2255 Or, In the Alternative, For Issuance Of A Writ Of Error Coram Nobis was filed
with the Clerk of Court using the CM/ECF system and was served on the following counsel by
electronic notification and by placing a copy of same in the United States Mail with adequate
postage thereon, properly addressed to:
Edward J. Tarver, Esq.

U. S. Attorney (SDGA)
P. O. Box 8970
Savannah, GA 31412

P. O. Box 2017
Augusta, GA 30903
James D. Durham, Esq.

U. S. Attorney’s Office
P. O. Box 8970
Savannah, GA 31412
This 15th day of June, 2011.
/s/ JOHN B. LONG

JOHN B. LONG, ESQ.
Attorney for Petitioner
Case 1:11-cv-00088-DHB-WLB Document 1-1 Filed 06/15/11 Page 1 of 1
JS 44 (Rev. 12107) CIVIL COVER SHEET

The JS 44 civil cover shed and the information contained herein neither replace nor suppl e ment the filing and service ofp1eadiigs or other papers as reiuired by law, except as provkled
by local rules of court. Thilfoml, approved by the Judicia] Conference of the United States in September 1974, is requred for the use of the Clerk ofCourt for the purpose oftnitiating
the civil docket sheet. (SHE INSTRUCTIONS ON THE REVERSE OF THE FORM.)
I. (ii) PLAINTIFFS DEFENDANTS

John Duncan Fordham United States of America
(b) County ofResidence of First Listed Plaintiff Columbia County of Residence of first Listed Defendant
(EXCEPT IN US PLAINTIFF CASES) (114 U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION 09 THE
LAND INVOLVED.

(c) Attorney's (FixmNsme. Address, and Telephone! Number) Attorneys (if Known)

John B. Long, Esq. (Tucker Everitt Long et al) 453Greene Streel Edward J. Tarver, Esq./James D. Durham, Esq.
Augusta, Georgia 30901 (706) 722-0771
11. BASIS OF JURISDICTION (Place in -X7 in One BOx Only) In'. CITIZENSHIP OF PRINCIPAL PARTIES(r an "X" in one Box for PI&iJI6(1
(For Diversity Cases Only) and One Box for Defeodasit)

0 1 U.S. Government

O 3 Federal Question PTI? DEF FTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This Stale 0 1 0 1 Incorporated or Principal Pinen 0 4 134
of Business In This State

2 U.S. Govsnment 0 4 Diversity Citizen ofAnother State 0 2 0 2 Incorporated asdFrincipalPlace 0 5 0 5
Defrndant of Business Iii Another State
(indicate Cithenship of Parties in Item 111)
Citizen or Subject ofa 0 3 0 3 Foreign Nation 0 6 0 6

ATURE OF SUIT an X" in One Box
0 l101nsurancc PERSONAL INJURY PERSONAL INJURY 610 Agcieulture 422 Appeal 28IJSC 158 400 State Reapportionment
0 120Maiiiie 31O Airplane o 562 Personal thjui' - 620 Other Food& Drug 423 Withdrawal 410 Antitrust
0 lSGMiHerAcI 315 Airpl ane Product Med. Ma!practice 625 Drug Related Seizure 28 USC 157 430Banks and Banking
O 140 Negotiable Instrument Liability o 365 Personal IfljILIy - of Property 2l USC881 450Consmerce
0 150 Recovery of Overpayment 320Assault,Libel & Prodtict Liability 630 Liquor Laws 460Depor1tion
&EnlorcemsntufJudgmarr Slander o 368 Asbestos Personal 640 LR. & Trucl< 820 Copyrights 470 Racketeer Influenced and
(3 I5l Medicare Act 330 Federal Employers Injury Product 650 Airline Rep. 830 Patent CQITUPt Organizatsons
O 152 Recovery ofDefaulted Liability Liability 660 Occupational 040lradernaek 480 Consumer Credit
Student Loans 540 Marine PERSONAL PROPERTY Safety/I4enIth 490 Cable/SsITV
(Ec1. VeIeavs) 343 Marine Product O S700therfraud 690 Other 810 Selective Service
0 153 Recovery ofOverpayment Liability O 37l Truth inLending 850 SecisritiesfcoimnodiU&
of Veteran's Benefits 350 Motor Vehicle O 380 Other Personal 71D Fair Labor Standards 861 1IIA (139311) Exchange
O 160 Stockholders' Suits 355 Motor Vehicle Propetty Damage Act 86251ae1c Lung (923) 875 Customer Challenge
0 l90 Other Contract Product Liability 0 3 S5 Pmperty Damage 720 Lbor/Mgnit, Relations; 863 D1WC/DlWW(405() 12USC3410
O 195 Contract Product Liability 3600therPersonal Product Liability 730Labor/Mgmt.Reporting 864 SS1D Title XV1 890 Other Statutory Actions
O 196 Franchise & Ditolususe Act 865 RSI (4050) 891 Agricultural.Acts
740 Railway Labor Act 892 Economic Stabi1izaltn Ad
0210 Land Condemnation 441 Voting 510 Motions 10 Vacate 790 Other Labor Litigation 870 Taxes (U.S. Plaintiff 893 EnviromentalMatters
O 220 Foreclosure 442 Employment Sentence 791 Ernpl. Rel. Inc. 01 Defendant) 894 Energy Allocation Act
0230 Rent Lease & Ejectrnesit 443 Housing/ Habeas Corpus: SecuzityAct 871 IRS—Third Party 895 Freedom of Information
0240 Torts to Land Accommodations 530 General 26 USC 7609 Act
0 245 Too Product Liability 444 Welfare 535 Death Penalty 90OApeal of Fee l
Delennination
O 290 All Other Real Pro p erty 445 Amer. w/Disabjljties 540 Mandamus & Other Under Equa
Employineut 550 Civil Rights 463 Habeas Corpus - 10 Justice
446 Amer. wtDilabilihes 555 Prison Condition Alien Delaiiiee 950 Constitutionality of
Other 465 Other Immigration State gIeMen
440 Other Civil Rights Action s
Y. ORIGIN (Place an ")C in One Bon Only) Appeal 10 District

2 Removed from 0 4 Reinstated or Judge from
Original 0 fJ 3 Remanded from Transferred from 0 6 Multidistict
5 another district
i j
Ma ist rate
Proceeding StateCourt Appellate Court Reopened (T -1 ilVl
Litigation 1(idTn-nt
.^.S C2 Statute under which you are filing (Do not rite Jurisdictional statutes unless diversity):
Vt. CAUSE OF ACTION description of cause:
VII. REQUESTED IN 0 CHECK IF IIflSIS A CLASS ACTION DEMANDS CHECK YES only if demanded in complaint:
COMPLAINT: UNDER F.R.C.P. 23 JURYDEMAND: OYes 0 N
VIII. RELATED CASE(S)

(Seeinsnuctions): JUDGE
IF ANY Dudley .H. OWet13?\ DOCKET NUMBER CR-1 04-051
DATE SIGN RNEY MC
06115/2011
FOR OFFICE USE ONLY
RECEI PTI8
AMOUNT
\. APPLY)LIFP ') 1 JUDGE MAO. JUDGE
IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DTVISION
UNITED STATES OF AMERICA,
FILE NO. CR-104-051

VS.
JOHN DUNCAN FORDHAM,
MOVANT,
JOHN DUNCAN FORJ)HAM'S MOTION TO VACATE, SET ASIDE OR CORRECT

SENTENCE PURSUANT TO 28 U.S.C. 42255 OR, IN THE ALTERNATIVE, FOR
ISSUANCE OF A WRIT OF ERROR CORAM NOBIS UNDER THE ALL WRITS ACT
28 U.S.C. 41651, AND CONSOLIDATED MEMORANDUM OF
LAW IN SUPPORT THEREOF
COMES NOW, JOHN DUNCAN FORDHAM, Movant, (hereinafter
"Fordham"), by and through the undersigned counsel of record, and files this Motion to Vacate.
Set Aside or Correct Sentence Pursuant to 28 U.S. §2255 Or, in the Alternative, for Issuance
of a Writ of Error Coram Nobis under the All Writs Act 28 U.S.C. §1651, and consolidated
Memorandum of Law in Support Thereof, and, for cause, would show the following, to-wit:
Introduction
On June 24, 2010, the United States Supreme Court decided Skilling v. United
States, 130 S.Ct. 2896 (2010), wherein the Court unanimously held that Jeffley Skilling's
conviction for conspiracy was flawed on the grounds that the honest-services component of the
federal mail fraud statute, 18 U.S.C. §1346, criminalizes only schemes to defraud that involve
bribes or kickbacks. The Skilling decision creates a right for Fordharn to relief under 28 U.S.C.
§2255 as detailed infra. Under the law as it existed, as a result of McNally v. United States, 483
U.S. 350, 107 S.Ct. 2875 (1987), which stopped the development of the intangible rights doctrine
EEX) ITI
in its tracks, what the jury convicted Fordharn of was not, and is not, a crime as now held by the
Court in Skillig, supra.
225S Refred Pleading
1. That on May 5, 2005, Fordham was convicted of one (1) count only,
Count No. 8, which charged him with health care fraud based on honest services in which
alleged that he, between the period of time from October 26, 2000 to on or about February 1,
2003, along with Co-Defendants, Charles Michael Brockman and Robin L. Williams, aided and
abetted each by the other, did knowingly and willfully devise and intend to devise a scheme and
artifice to defraud the Community Mental Health Center of East Central Georgia ("CMIE{C") and
Community Service Board ("CSB") of money and property and of the intagible jt pf honest
services, and to obtain, by means of false or fraudulent pretenses, representations, and promises,
money and property owned by, and under the custody and control of, the CMHC, in connection
with the delivery of and payment for health care benefits, items and services. On September 15,
2005, Fordham was sentenced by the Court to serve a term of fifty-two (52) months in the
custody of the Federal Bureau of Prisons, together with three (3) years of supervised release.
Fordham served his time with the Federal Bureau of Prisons at the Maxwell Air Force Base
Prison Camp, was released by the Federal Bureau of Prisons on March 3, 2009, and is currently
serving his three (3) years of supervised release. His supervised release will end March 3, 2012.
2. That at his jury trial, Fordham pled not guilty and did not testif' at the trial
in his defense.
3. That Fordham appealed the judgment, conviction and sentence to the
Eleventh Circuit Court of Appeals [Docket No. 05-15499]. The Court of Appeals affirmed
Fordham's judgment, conviction and sentence on March 12, 2007 at 219 Fed. Appx. 963, 2007
WL 737960 (1 1th Cir. 2007).
4. That Fordham's grounds for appeal were whether or not the evidence was
sufficient to support the convictions and whether the Court erred in denying the motion for
% 1h1 sDI'!
5. That Fordham did not file a petition for certiorari after the Court of
Appeals affirmed his judgment, conviction and sentence. Fordham has not filed any other
appeals of post-conviction or relief motions, and none are now pending in any court.
6. That Fordham's grounds for relief are that under the United States
Supreme Court decision in Skillin g v. United States. 130 S.Ct. 2896 (2010), the conduct for
which Fordham was charged was not a crime, in that the provisions of 18 U.S.C. §1346 were
overly broad. In proceeding against Fordham, the Government proceeded under 18 U.S.C.
§1347(a)(2) and 18 U.S.C. §1346. The payments that Fordham made to Mr. Williams were not
kickbacks or bribes, in that Mr. Williams was not employed by CMHC or the CSB. Bribery is
defined by 18 U.S.C. §666 and, since Mr. Williams was not authorized to act on behalf of the
CMHC, payments to him could not be a bribe. See also, United States v. Whitfield, 590 F.3d
325 (5th Cir. 2009) at 348. There could be no bribery under Georgia law, O.C.G.A. §16-10-2, in
that Mr. Williams was not acting on behalf of the State. These payments could not be illegal
under Skilling, since 18 U.S.C. § 1346 has been held to fail to define the conduct it prohibits. In
that the acts were not criminal acts, the District Court lacked jurisdiction over the Defendant
under 18 U.S.C. §3231.
7. That none of the above relief was raised by Fordham on direct appeal.
S. That the attorneys representing Fordham at trial and sentencing were:

3
in
Andrew J. Ekonomon, Esq.

Ekonomou, Atkinson & Lambros, LLC
The Hurt Bldg.
50 Hurt Plaza, Suite 450
Atlanta, GA 30303
Adam Marshall Hames, Esq.

The Hames Law Firm LLC
511 East Paces Ferry Road, NE
Atlanta, GA 30305
9. That Fordham has no other sentences to serve after completion of his three
(3) years of supervised release and, if this sentence is set aside and voided, there will be no other
convictions against him.
10. That Fordham seeks in the alternative a writ of coram nobis under the All
Writs Act 28 U.S.C. §1651 if, in the interim, Fordham completes his supervised release and this
matter is still pending.
ii. That the statute of limitations for the claims sought by Fordham does not
expire until June 24, 2011 - one (1) year from the date the United States Supreme Court decided
the case of SkillingyUnited States, 130 S.Ct. 2896 (2010), which created the right for relief.
12. That Fordham has not procedurally defaulted in not bringing this claim
earlier.
13. That the legal issues in this ease were not known at the time of Fordham's
conviction and appeal.
14. That Fordham has been prejudiced, in that be is actually innocent of the
crime charged, in that the honest services fraud component of health care fraud is no longer
valid.
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15. That it was not illegal for Fordhain to enter into a contract approved by its
Board (the CSB); there is nothing illegal in Fordham making money and, in that that payments to
Mr. Williams cannot be classified as bribes or kickbacks, there can be no honest services fraud or
health care fraud.
Claim for Relief
Based upon the Skillig decision, Fordham seeks herein a determination that:
1. The judgment for which be was incarcerated and for which be is now
serving three (3) years of supervised release, violates the Constitution or laws of the United
States.
2. The legal issues concerning the honest services fraud statute that were
addressed in Skilling, were not known at the time of Fordham's conviction and appeal.
3. Fordham has not procedurally defaulted on this claim by failing to raise it
on direct review
4. Under the facts in this case, Fordham is factually innocent. Fordham did
not work for the State, Mr. Williams did not work for the State, the payments that Fordham made
to Mr. Williams were no different than fees paid to one business from another, and these
payments are not kickbacks or bribes.
5. Fordbam's judgment and sentence are otherwise subject to collateral
review and subject to being set aside, including setting aside all of the infringements which come
with a federal felony conviction, as well as setting aside the remaining portion of his three (3)
years of supervised release and any fines totaling $1,022,000 or other sentences imposed.
It is in these premises that Fordhant submits that his convictions and sentences
should be vacated on this one count and the conviction set aside..
In
The Relevant Holdin g in S/ui/mM
In Skilling, the Court held that 18 U.S.C. §1346 is properly confined to cover only
bribery and kickback schemes. Skilling, 130 S.Ct. 2896. The Court specifically rejected the
Government's argument that §1346 criminalized other forms of conduct, to-wit: undisclosed
self-dealing by a public official or private employee. j.
Jeffrey Skilling was indicted for an alleged three-pronged conspiracy: 1) honest-
services wire fraud; 2) money or property wire fraud; and 3) securities fraud. Id. The Court
reasoned that his conviction on the conspiracy charge was legally flawed because it was deficient
in two (2) respects. First, Skilling's alleged honest-services fraud did not involve bribes or
kickbacks, the only type of conduct the Court held was illegal under §1346. Id. Rather, his
alleged honest-services fraud dealt only with conflict-of-interest type self-dealings which he
failed to disclose. Id. Next, the Court concluded that the conspiracy charge was legally flawed
because it was impossible to determine upon which prong(s) of the conspiracy the jury's verdict
rested. Id.
Having concluded that Skilling's conspiracy conviction was flawed and,
therefore, subject to being set aside, the Court reasoned that the decision whether to set aside the
conviction rests upon application of the harmless error doctrine. Hed gueth v. Pulido, 129 S.Ct.
530 (2008) (per curiam). On remand, the Fifth Circuit has affirmed the other convictions from
those charges not involving honest services fraud and vacated the sentence and remanded the
case for resentencing. U. S. v. Skillin g, 638 F.3d 480 (5th Cir. 2011). Since the only charge
Fordham was convicted of involved honest services fraud component, if his conviction cannot
stand, then the entire conviction and sentence should be vacated. See Sta yton v. U. S. ---- F.
pp.2d ---- 2011 WL 691238 (2011).

The Holding in Ski/jinx Should be Applied Retroactivejyjo

Afford Fordham the Relief Claimed Herein
Courts have approached the issue of a new rule's retroactive application to cases
on collateral review differently. Some courts have held that non-retroactivity is a defense to a
§2255 motion which must be raised by the Government in response. Others have concluded that
the movant must demonstrate the rule's retroactive application as a threshold matter.
Accordingly, and in an abundance of caution, Fordham will address head-long the issue of
Skilling's retroactive application to the instant Motion.'
In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed. 2d 334 (1989). the
Supreme Court held that "new constitutional rules of criminal procedure will not be applicable to
those cases which have become final before the new rules are announced," Id., at 310, 109 S,Ct.
at 1075, unless the new rule "places 'certain kinds of primary, private individual conduct beyond
the power of the criminal law making authority to proscribe,'" j., at 311, 109 S.Ct. at 1075
(quoting Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct. 1160, 1180, 28 L.Ed. 2d 404
(1971) (Harlan, J., concurring in part and dissenting in part)), or could be considered a
"watershed rul[e] of criminal procedure," 489 U.S. at 311, 109 S.Ct. at 1076. See, Bousley v.
United States. 523 U.S. 614, 619-20, 118 S.Ct. 1604, 1610 (1998). However, the Supreme Court
has never held that the Teague doctrine of non-retroactivity applies to §2255 proceedings. See,
Danforth v. Minnesota, 552 U.S. 264, 269 n.4, 128 S.Ct. 1029, 1034 (2008) (reserving opinion as
to "whether the Teague rule applies to cases brought under 28 U.S.C. §2255"). Nevertheless,
1
Since the instant Motion is Fordbam's original §2255 Motion, he is not constrained by the retroactivity standard
applicable to successive §2255 motions, to-wit:
28 U.S.C. §2255
"A second or successive motion must be certified ... to contain -
(2) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court that was previously unavailable."
7
even if the Court does undertake a league - analysis of Skilling's retroactive application to the
present ease, the conclusion that Skillin g's rule should apply to Fordliam's case is inescapable.
First, Skilljg announced a new rule because its "result was not dictated by
precedent existing at the time the defendant's conviction became final." Teague v. Lane, 489
U.S. 288, 301, 109 S.Ct. 1060, 1070 (1989) (emphasis in original); See, generally , Truesdale v.
Aiken, 480 U.S. 527, 528-29, 107 S.Ct. 1394, 1395, 94 L.Ed. 2d 539 (1987) (Powell, J.,
dissenting). In fact, the state of honest-services fraud cases prior to Skillin g evidenced
convictions for multifarious conduct far and beyond the core cases of bribery and kickbacks -
including acts of undisclosed self-dealing and mere conflicts of interest. See generally, Skilling,
130 S.Ct. 2896. Clearly, the rule that §1346 criminalized paly schemes involving bribery and
kickbacks was not dictated by precedent prior to the holding in Skillin g. It was not illegal for
Fordham to take advantage of a contract approved by the CSE under which be could make a
profit. U. S. v. Ballard, 663 F. 2d 534 (5th Cii. 1980).
Further, Teague is inapplicable here because the Skillin g new rule is substantive,
not procedural. In Bousle y v. United States, 523 U.S. 614, 620, 118 S.Ct. 1604, 1610 (1998), the
Supreme Court opined
"And because Teague by its terms applies only to procedural rules,

we think it is inapplicable to the situation in which this Court
decides the meaning of a criminal statute enacted, by Congress."
- 4. (emphasis added).
The Court has defined a rule as substantive, rather than procedural, "if it alters the range of
conduct or the class of persons that the law punishes." Sebriro v. Summerlin, 542 U.S. 348, 353,
124 S.Ct. 2519, 2523 (2004), See, Bousley. 523 U.S. at 620-21 (rule holding that a "statute does
8
not reach certain conduct" is substantive); Saffie v. Parks. 494 U.S 484, 495-96, 110 S.Ct. 1257,
108 L.Ed. 2d 415 (1990) (a rule is substantive that "decriminalize[s] a class of conduct"). The
Eleventh Circuit has consistently followed the foregoing analysis as well, holding
"Teague's bar, however, does not apply when the Supreme Court
decides a new substantive rule of criminal law as opposed to a new
procedural rule. And a new rule is substantive when it interprets3
'the meaning of a criminal statute enacted by Congress' so that the
conduct for which a defendant was convicted may no longer be
illegal." Ross v. United States, 289 F.3d 677 (11d1 Cir. 2002)
(quoting Bousley, 523 U.S. at 620.)
The Supreme Court has reasoned why new substantive rules (i.e., those "that
narrow the scope of a criminal statute by interpreting its terms," Sebriro v. Summerlin, 542 U.S.
348, 351, 124 S.Ct. 2519, 2522 (2004)) apply retroactively:
"Such rules apply retroactively because they 'necessarily carry a

significant risk that a defendant stands convicted of 'an act that the
law does not make criminal" or faces a punishment that the law
cannot impose upon him." Id. at 2523, See, Bously, 523 U.S. at
620 (quoting Davis v. United States, 417 U.S. 333, 346, 94 S.Ct.
2298, 41 L.Ed. 2d 109 (1974)).
Finally, under almost the exact situation as here, courts have applied a new rule construing the
class of conduct criminalized as honest-services fraud to be retroactive to cases on collateral
review, in 1987, the Supreme Court decided McNall y v. United States, 483 U.S. 350, 107 S.Ct.
2875, 97 L.Ed. 2d 292 (1987). The McNally Court held that the federal mail fraud statute, 18
- U.S.C. §1341, was limited in scope to the protection of property rights only; and further, that the
statute did not protect a citizen's intangible right to good government. j. In the wake of
McNally, Courts of Appeals were flooded with collateral attack proceedings where prisoners
"Today's decision clarifies that no other misconduct falls within § 1346's province." Skil1in, slip op. at 48.
"Interpreted to encompass only bribery and kickback schemes, § 1346 is not unconstitutionally vague." j.
challenged their honest-services fraud convictions. Without exception, the United States Courts
of Appeals applied the MeNal],y holding retroactively. See, Belt v. United States, 868 F.2d 1208,
1211 (11th Cir. 1989) (holding McNally retroactive, the Court reasoned "a decision which
determines that Congress never intended certain conduct to fall within the proscription of a
criminal statute must necessarily be retroactive"); United States v. 1lkins, 885 F.2d 775, 781
(ll th Cir. 1989).
The same result should be obtained here. The holding in Skillin g - that criminal
liability under §1346 is limited to schemes involving only bribery and kickbacks is a "new
rule" because its result was clearly not dictated by existing precedent. At the time of Fordham's
trial, Skilling had not been convicted and the issues raised in the Fifth Circuit and the Supreme
Court were raised after Fordham's appeal. Further, Skillin g 's rule is substantive, not procedural,
because it interprets the meaning of §1346 by narrowing the terms to include only cases of
bribery and kickbacks, and not cases of undisclosed self-dealing or conflicts of interest. Finally,
because the Supreme Court has reasoned that Congress never intended for §1346 to reach
conduct other than bribes or kickbacks, it must be applied retroactively to cases on collateral
review, as Fordharn's presently.
The Application of SkililnE to Fordham's Case
Unlike Skilling, and unlike Mr. Williams, Fordham was convicted of one (1)
count of health care fraud based upon alleged honest services fraud, all as set forth in Count No.
4
See also, United States v. Ochs. 842 F.2d 515, 519-20 (jSt Cü. 1988) (holding McNally applied retroactively);
Ingber v.- En 841 F.2d 450, 453 (2 k" Cir. 1988) (same); United States v. Osser, 864 t.2d 1065 3d Cir. 1988)
(same); United States v. Mandel, 862 F.2d 1067 (4th Cir. 1988) same); United States v. Marcello, 876 F.2d 1147 (551
Cir. 1989) (same); Callanan v. United States, 881 F.2d 229 (6' Cir. 1989) (game); Maanuson v. United States, 861
F.2d 166 (7th Cir. 1988) (same); United States v. Shelton, 848 F.2d 1485 (10 Cir. 1988) (en banc) (same).
10
8 of the indictment. He was initially charged in two (2) counts only, a conspiracy count alleging
violation of 18 U.S.C. §371, which conspiracy count was dismissed by virtue of a judgment of
acquittal entered by the District Court during the trial of the case. (Tr. 1996). The only jury
verdict against Fordham was the jury verdict relating to Count No. 8 health care fraud based
upon honest services fraud. (Tr. 2508).
The Facts Leading U p to the Trial and Conviction of Honest Services Fraud
The CMHC had a pharmacy that was being operated by one Sherry Goodman,
who resigned in late 2000, claiming that she was being pressured by the CMHC's Chief
Executive Officer, F. Campbell Peery, and by the Business Manager, Mr. Brockman. (Tr. 255,
587-590). Mr. Peery was concerned that the pharmacy was not staffed properly and that it would
close at inopportune times for patients. (Tr. 590, 272-273, 787). The CMHC desperately needed
someone to replace Ms. Goodman, an operator of the pharmacy. Fordham was a local
pharmacist and he was approached about taking over the pharmacy and operating it. (Tr. 275,
323).
Late, in 2000, Mr. Williams introduced Mr. Peery to Fordham. (Tr. 62, 274).
Fordbam owned and operated his own local pharmacy known as "Duncan Drugs." (Tr. 535). As
an inducement for Fordham to take over the CMHC pharmacy, Mr. Peery told Fordham that he
knew of another pharmacy of another Community Service Board that was a profitable operation.
(Tr. 275). Acting as a representative of Fordham, Mr. Williams worked out a verbal agreement
for Duncan Drugs, a business owned by Fordham, to operate the pharmacy at the CMHC for a
period of time in the Fall of 2000. (Tr. 275-276). The first written contract (a temporary
contract) was signed on October 26, 2000 to furnish a pharmacist only (Tr. 51). After the
11
temporary contract, Mr. Peery offered to have the CMHC cover the expenses of the pharmacy.
(Tr. 275)
In January 2001, Mr. Peery proposed to the CSB that it approve a contract with
Duncan Drugs, but the CSB deferred consideration of Mr. Peery's proposal, so that it could
review the contract. (Tr. 327, 791, 1546, 1643). Subsequently, Mr. Peery requested Duncan
Drugs to provide pharmacy coverage for two (2) CMHC satellite offices and the original
agreement was modified to reflect a monthly management fee of $13,000 and incentive fee. jr.
51, 280). The incentive fee contained in the March 27, 2001 contract was for certain expenses of
the pharmacy to be added together and the total expenses were subtracted from the gross
revenues of the pharmacy, which were then evenly split between Duncan Drugs and the CMHC.
jr. 662, 668). The CSB approved that contract at their March 27, 2001 meeting and authorized
Mr. Peery to sign it on behalf of the CMIHC. (Tr. 51, 280, 1477, 1644). Mr. Brockman, the
Business Manager of the CMHC, told members of the CSB and others that the pharmacy had
previously lost money, but while it was being operated by Duncan Drugs it was making money.
(Tr. 721, 782, 1478, 1486). Duncan Drugs subsequently entered into six (6) contracts or
amendments to provide pharmacy services at the CMJIC. (Tr. 50, 63). A copy of the October
26, 2000 temporary contract with Duncan Drugs, which provided for a monthly management fee
of $11,500.00, but no incentive fee, was sent to the Regional Board that oversaw the operations
of the CMHC. (Tr. 657, 1087). The Regional Board was not, however, sent a copy of other
contracts or amendments of the contracts. (Tr. 1098, 1105).
Fordham did not calculate and had no way of knowing how to calculate the
incentive fees provided in the March 27, 2001 contract. There is no question but that Duncan
Drugs greatly increased the general business of the pharmacy. (Tr. 65, 326, 2358). The
12
incentive fees paid to Duncan Drugs were calculated by the CMJ-IC. (Tr. 621-633, 675, 1360-
1361, 1365-1375).
In the contract approved by the CSB and signed by Mr. Peery on its behalf, the
incentive fee calculations did not include the expenses incurred by the pharmacy for what was
known as "high cost medications." jr. 624-633, 663, 683). The incentive fee provision of the
contract had been drafted by Mr. Peery, who preferred incentive-based contracts based upon
increasing revenues. (Tr. 278, 331, 664). During the time that Duncan Drugs operated the
pharmacy at the CMIHC, the revenues of the pharmacy increased by $61,000 per month. (Tr.
681). All but the first incentive fee payments were calculated based upon a formula contained in
the March 27, 2001 contract. (Tr. 684, 1360). In mid to late 2002, Mr. Brockman received a
memorandum from the Regional Board stating that incentive fees should not be paid with certain
federal or State money. (Tr. 10 at 96).
From early 2001 until January 2003, Duncan Drugs received approximately
$957,000 in incentive fee payments calculated pursuant to the March 27, 2001 contract. (Tr. 55-
59, 63; 5 at 42). The payments of commissions to one who was not an employee or agent of the
CMBC, are not illegal. United Sates v. Ballard, 663 F.2d 534 (5th Cir. 1981). Duncan Drugs
paid Mr. Williams a percentage of both the management fee and incentive fee it received from
the CMHC. (Tr. 543-548). There was no written agreement between Mr. Williams and Duncan
Drugs, even though Duncan Drugs did issue Mr. Williams an IRS Form 1099 for all of these
payments. (Tr. 548, 1973). In October 2002, the relationship between Mr. Williams and Duncan
Drugs was disclosed to two (2) members of the CSB and the CSE's attorney. (Tr. 1627-1628).
Mr. Williams was paid a total commission of $357,586.00 by Duncan Drugs. (Tr. 1673).
13
The only count for which Fordham was convicted was Count No. 8, charging that
Fordham aided and abetted Mr. Williams and Mr. Brockman by knowingly and willfully
devising and intending to devise a scheme to defraud the CSB and the CMHC of money,
property and intangible right of honest services. Mr. Fordham never paid Mr. Brockman or any
officer or employee of the CMHC or the CSB any money and, since Fordham never paid any
officer or employee any funds, there can be no scheme involving bribery or kickbacks. The
honest services component of health care fraud fails as to Fordharn under the holding in Ski1lin.
The evidence was undisputed that Fordham and the pharmacy owned by him
increased the general business of the CMHC pharmacy. (Tr. 2358). The evidence was
undisputed that Fordham made a substantial amount of money from the contracts that were
entered into with the CMHC, and that they paid a commission to Mr. Williams. There was no
evidence or documents showing that Fordham or Duncan Drugs ever provided anything but
honest services to the CMHC and its pharmacy customers. These payments were disclosed by
Fordham, 1099's were issued, and there is nothing illegal about paying one or more agents a fee
for assisting one in obtaining business. O.C.G.A. §10-6-31. There was never any evidence that
there was any payment back to any officer, agent or employee of the CMHC by Fordbam and,
whether or not the contracts were entered into between the CMHC and Fordham's business were
good or not good contracts for the CMHC, cannot alone form the basis of a theft of honest
services claim as was done in this case. These contracts were all approved by the CSB.
Nothing that Fordham did could constitute health care fraud based upon honest
services fraud, as alleged in Count No. 8. If Skillin g had been decided prior to Fordham's trial,
the charges would have been dismissed either before trial or at trial, as was the conspiracy claim
14
by the Court. If Skilling had been decided subsequent to trial, but prior to an appeal, the
Eleventh Circuit would have reversed the conviction.
Conclusion
The Government cannot prove beyond a reasonable doubt that Fordham's
conviction and resulting sentence are not based upon a legally invalid theory of criminal liability.
The conduct upon which Fordham's conviction may rest, that is of entering into contracts with
the CMHC and receiving money and paying an agent, Mr. Williams, money, is no longer a
crime. The jury in this case was erroneously instructed upon the Government's illegal honest
services fraud theory.
Before the trial, Fordham attempted to have his case severed from that of Mr.
Williams, without success. It is obvious that a jury, in reviewing the vast amount of evidence
and without making any distinctions whatsoever, through Fordham into the mix of guilty verdicts
without any basis. In that the basis for which Fordham was convicted is no longer a crime,
Fordham's conviction on this one (1) count should be dismissed and set aside based upon
Skihing v. United States, 130 S.Ct. 2896 (2010).
Respectfully submitted, this, the 15th day of June, 2011.
Is/JOHN B. LONG
JOHN B. LONG, ESQ.
Georgia State Bar No. 457200
Attorney for Movant
15
loyarcsitialsax
TUCKER EVERITT LONG BREWTON & LANIER

P. 0. BOX 2426
453 GREENE STREET
AUGUSTA, GA 30903
(706) 722-0771
(706) 722-7028 Fax
CERTIFICATE OF SERVICE
This is to certify that the foregoing John Duncan Fordham's Motion to Vacate, Set
Aside Or Correct Sentence Pursuant To 28 USC. §2255 Or, In The Alternative, For Issuance OfA
Writ Of Error Comm Nobis Under The All Writs Act 28 U.S.C. §1651, And consolidated
Memorandum Of Law In Support Thereof was filed with the Clerk of Court using the CM/ECF
system and was served on the following counsel by electronic notification and by placing a copy of
same in the United States Mail with adequate postage thereon, properly addressed to:
Edward I. Tarver, Esq.

P. 0. Box 8970
Savannah, GA 31412

P. 0. Box 2017
Augusta, GA 30903
James D. Durham, Esq.

U. S. Attorney's Office
P. 0. Box 8970
Savannah, GA 31412
This 15th day of June, 2011.
is! JOHN H. LONG

John B. Long, Esq.
Attorney for Movant
17

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Case 1:11-cv-00088-DHB-WLB Document 1 Filed 06/15/11 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

JOHN DUNCAN FORDHAM,

PETITIONER, FILE NO.

UNITED STATES OF AMERICA,

PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. §2255 OR, IN

NOW COMES JOHN DUNCAN FORDHAM (“Petitioner”) and pursuant to 28

Issuance of a Writ of Error Coram Nobis and, in support thereof, shows:

years supervised release, and a fine of $1,022,000.

3. That Petitioner pled Not Guilty.

4. That Petitioner did not testify at the trial.

S.Ct. 2896 (2010).

9. That Petitioner attaches and incorporates by reference the attached Motion

the time of the appeal Skilling had not been decided.

Andrew J. Ekonomou, Esq.

Adam Marshall Hames, Esq.

12. That there are no other convictions or sentences to be served by Petitioner.

Respectfully submitted, this, the 15th day of June, 2011.

/s/JOHN B LONG ^^^^^^^^^^^^^^^^^^

TUCKER EVERITT LONG BREWTON & LANIER

Edward J. Tarver, Esq.

Edward J. Tarver, Esq.

James D. Durham, Esq.

This 15th day of June, 2011.

/s/ JOHN B. LONG

Case 1:11-cv-00088-DHB-WLB Document 1-1 Filed 06/15/11 Page 1 of 1

JS 44 (Rev. 12107) CIVIL COVER SHEET

I. (ii) PLAINTIFFS DEFENDANTS

Y. ORIGIN (Place an ")C in One Bon Only) Appeal 10 District

VIII. RELATED CASE(S)

IN THE UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA,

FILE NO. CR-104-051

JOHN DUNCAN FORDHAM,

JOHN DUNCAN FORJ)HAM'S MOTION TO VACATE, SET ASIDE OR CORRECT

COMES NOW, JOHN DUNCAN FORDHAM, Movant, (hereinafter

Court in Skillig, supra.

225S Refred Pleading

3. That Fordham appealed the judgment, conviction and sentence to the

WL 737960 (1 1th Cir. 2007).

under 18 U.S.C. §3231.

S. That the attorneys representing Fordham at trial and sentencing were:

Andrew J. Ekonomon, Esq.

Adam Marshall Hames, Esq.

convictions against him.

matter is still pending.

conviction and appeal.

health care fraud.

Claim for Relief

3. Fordham has not procedurally defaulted on this claim by failing to raise it

payments are not kickbacks or bribes.

5. Fordbam's judgment and sentence are otherwise subject to collateral

The Relevant Holdin g in S/ui/mM

self-dealing by a public official or private employee. j.

Jeffrey Skilling was indicted for an alleged three-pronged conspiracy: 1) honest-

Having concluded that Skilling's conspiracy conviction was flawed and,

pp.2d ---- 2011 WL 691238 (2011).

The Holding in Ski/jinx Should be Applied Retroactivejyjo

Skilling's retroactive application to the instant Motion.'

profit. U. S. v. Ballard, 663 F. 2d 534 (5th Cii. 1980).

Supreme Court opined

"And because Teague by its terms applies only to procedural rules,

348, 351, 124 S.Ct. 2519, 2522 (2004)) apply retroactively: