United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OF OPINION
L.
Scott Coogler United States District Judge
I.
Introduction
Petitioner
Rebecca Ann Norton (âNortonâ) has filed a motion to vacate,
set aside, or correct her sentence under 28 U.S.C. § 2255.
(Doc. 1.) The United States opposes Norton's § 2255
motion. (Doc. 5.) For the reasons below, Norton's motion
is due to be denied without an evidentiary hearing and this
action dismissed.
II.
Background
On June
20, 2016, a federal criminal complaint was filed against
Norton, charging her with one count of bank fraud in
violation of 18 U.S.C. § 1344(2). (Crim. Doc. 1.) Norton
had her initial appearance before this Court the next day,
after she was transferred from the Shelby County Jail where
she had been held on related state charges. Thomas Putnam,
Esq., then of The Revill Law Firm, appeared with Ms. Norton
at that hearing. Victor Revill, Esq. filed an appearance on
behalf of Norton shortly thereafter. Before Norton was
charged federally, she was represented by Sam Holmes, Esq.,
an attorney retained to represent her on certain state
charges and on related, potential federal charges. However,
Mr. Holmes did not file an appearance in federal court on
Norton's behalf.
On June
29, 2016, a federal grand jury returned a one-count
indictment against Norton for bank fraud. (Crim. Doc. 7.) On
July 26, 2016, Norton was charged in a superseding indictment
with 30 counts of bank fraud in violation of 18 U.S.C. §
1344(2); 12 counts of aggravated identity theft in violation
of 18 U.S.C. § 1028A(a)(1); one count of tampering with
a witness in violation of 18 U.S.C. §§ 1512(b)(3)
& 2; one count of misuse of a social security number in
violation of 42 U.S.C. § 408(a)(7)(B); and three counts
of making and subscribing a false tax return in violation of
26 U.S.C. § U.S.C. 7206(1). (Crim. Doc. 15.)
On
September 29, 2016, pursuant to a written plea agreement
containing 12 pages of facts detailing Norton's crimes,
Norton pled guilty to nine of those charges: three counts of
bank fraud, three counts of aggravated identity theft, and
one count each of witness tampering, misuse of a social
security number, and making and subscribing a false tax
return. In exchange for her plea, the Government moved the
Court to dismiss the remaining charges. Norton's plea
agreement contained an appeal waiver with limited exceptions.
On
January 24, 2017, the U.S. Probation Office released
Norton's Presentence Investigation Report
(“PSR”). The report included a two-level increase
in Norton's offense level pursuant to U.S.S.G. §
2B1.1(b)(10)(C) due to Norton's use of
“sophisticated means” to unlawfully obtain funds.
Neither Norton nor her counsel objected to this increase or
to anything else in the PSR.
On
February 28, 2017, the Court sentenced Norton to a total of
102 months in prison. Judgment was entered on March 6, 2017.
On
March 2, 2017, Norton filed a pro se notice of
appeal to the United States Court of Appeals for the Eleventh
Circuit in which she requested appellate counsel. The Court
appointed new counsel to represent Norton on appeal. On June
12, 2017, Norton's appointed counsel filed an appellate
brief, arguing that this Court plainly erred in its
guidelines calculations by applying the “sophisticated
means” enhancement to Norton's sentence. On July
12, 2017, the Government moved to dismiss Norton's
appeal, stating such action was barred by Norton's appeal
waiver in her plea agreement. The Eleventh Circuit granted
the Government's motion, dismissing the appeal on
September 20, 2017. Norton remains in custody.
C.
§ 2255 Proceedings
On
September 18, 2018, Norton executed a § 2255 motion,
later filed by the Clerk on September 21, 2018.[1] Liberally
construing Norton's claims, [2] Norton asserts the following
bases upon which § 2255 relief should be granted:
a. The sophisticated-means enhancement was wrongly applied in
calculating her advisory sentencing guideline range (doc. 1
at 8-9); and
b. Trial counsel provided her with ineffective assistance of
counsel by:
1. Not challenging the sophisticated means enhancement or the
“tampering with a witness” charge (id.
at 12);
2. “[N]ot working in [her] best interest” because
they ostensibly (A) were not getting paid enough and/or (B)
were being paid by a third party to represent Norton as a
mechanism to funnel money connected to a “prostitution
ring” (id. at 4, 12);
3. Refusing to pay proper attention to her case because
Norton and her family did not pay them more money
(id. at 12);
4. Mr. Revill's permitting his associate, Mr. Putnam, to
handle Norton's case even though “Revill . . . was
the attorney that was hired” and the prosecutor
allegedly had a “volatile relationship” with Mr.
Putnam and/or “hated” Norton (id. at 6,
12);
5. Mr. Revill not meeting her until “a court
date” (id.at 12);
6. “[N]ever discuss[ing the] plea agreement with [her],
” but rather essentially scaring and/or forcing her
into signing the document, apparently including the appeal
waiver (id. at 7, 10, 12);
7. Not permitting her to review her PSR before the sentencing
hearing (id. at 12); and
8. Not obtaining her medical records before sentencing
(id.).
III.
Timeliness and Non-Successiveness of the ...