Norton v. United States

          MEMORANDUM OF OPINION

          L. Scott Coogler United States District Judge

         I. Introduction

         Petitioner Rebecca Ann Norton (“Norton”) 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 ...