United States District Court, N.D. Texas, Dallas Division
ALEXIS C. NORMAN, # 49210-177, Movant,
UNITED STATES OF AMERICA Respondent.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
HARRIS TOLIVER UNITED STATES MAGISTRATE JUDGE
to 28 U.S.C. § 636(b) and Special Order
3, Norman's motion to vacate, set aside, or correct
her sentence under 28 U.S.C. § 2255 was
referred to the United States magistrate judge. Upon review
of the relevant pleadings and applicable law, and for the
reasons detailed herein, it is recommended that the motion be
summarily DENIED as meritless and
Norman's claims be DISMISSED WITH
C. Norman pleaded guilty to one count of healthcare fraud.
Crim. Doc. 66. Norman admitted that, from December
2, 2009, through June 30, 2014, she submitted fraudulent
claims for Medicaid benefits for psychotherapy sessions that
were never performed on behalf of more than 500 Medicaid
clients, most of whom were minor children. Crim. Doc. 21
presentence investigation report (“PSR”) was
prepared to aid the Court in determining Norman's
advisory sentence under the United States Sentencing
Guidelines (“U.S.S.G.” or
“Guidelines”). Crim. Doc. 30-1. Applying
the 2014 Guidelines, the PSR recommended a total offense
level of 33. Crim. Doc. 30-1 at 9. That figure
included an 18-level increase because Norman's intended
loss-$5, 502, 724.88-was more than $2.5 million but less than
$7 million, as well as a three-level reduction for acceptance
of responsibility. Crim. Doc. 30-1 at 7-8.
A subsequent addendum to the PSR applied the 2015 Guidelines,
lowering Norman's total offense level to 29. Crim.
Doc. 35-1 at 4-5.
objected to the PSR, arguing that it overestimated the loss
amount. Crim. Doc. 59. She urged that she knew
Medicaid would, in fact, pay her less than what she billed
the program because she knew that it capped its
reimbursements at a percentage of cost-billed:
For instance, if a particular service was billed at $5,
000.00 but the allowable amount of the fixed fee schedule is
$2, 500.00 Medicaid will only pay 70% of the fixed fee amount
or in this example, $1, 750.00. It would not matter if the
provider billed $7, 500.00, $10, 000 or any other amount. . .
Crim. Doc. 59 at 2-3.
sentencing, the Court considered the parties' objections
to the PSR. See Crim. Doc. 70; Crim.
Doc. 72. In support of her written objection to the PSR,
Norman testified that she knew Medicaid would pay her less
than what she billed. Crim. Doc. 70 at 139-142;
Crim. Doc. 72 at 29-34. And she argued-for the first
time-that some of the allegedly fraudulent claims were, in
fact, legitimate, and should be excluded from the loss
amount. See Crim. Doc. 70 at 43.
end of the hearing, the Court found that Norman's
testimony was self-serving and not credible. Crim. Doc.
70 at 177, 179. The Court rejected Norman's claim
that she knew that Medicaid would pay only a fixed-percentage
of the fraudulent claims, as well as her post-hoc attempts to
make some of the fraudulent claims appear legitimate.
Crim. Doc. 70 at 177. The Court thus concluded that
Norman intended to defraud Medicaid of $5, 502, 724.88.
Crim. Doc. 70 at 177.
the government's objection, the Court awarded Norman a
two-level reduction for acceptance of responsibility.
Crim. Doc. 70 at 177-178. However, in light of
Norman's arguments that many of her fraudulent claims
were actually legitimate, the government exercised its
discretion to withhold its assent to the reduction of a third
point. Crim. Doc. 70 at 177-178. In all, the Court
fixed Norman's total offense level at 30. Crim. Doc.
70 at 180. And, applying the factors set out in 18
U.S.C. 3553(a), the Court sentenced Norman to 105 months'
imprisonment with a three-year term of supervised release.
Crim. Doc. 70 at 187-194; see also Crim. Doc.
66. The Court noted that it would have imposed the same
sentence even if the government had moved for a one-level
reduction under U.S.S.G. § 3E1.1(b). Crim. Doc. 70
at 187-194. Norman did not file a direct appeal.
section 2255 motion raises 16 claims of ineffective
assistance of counsel. Although she does not present her
claims in chronological order, the Court assesses them that
way: first addressing her claims that counsel was ineffective
with respect to her plea agreement, and then addressing her
challenges of counsel's performance at sentencing.
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
Sixth Amendment to the United States Constitution guarantees
a defendant reasonably effective assistance of counsel at all
critical stages of a criminal proceeding. See Cuyler v.
Sullivan, 446 U.S. 335, 344 (1980). To obtain
post-conviction relief on a claim that her counsel was
constitutionally ineffective, Norman must satisfy the
two-pronged test set out in Strickland v.
Washington, 466 U.S. 668 (1984). First, she must show
that counsel's performance fell below an objective
standard of reasonable professional service. See
Id. at 687. Second, she must establish that his
counsel's substandard performance caused prejudice.
See id. at 691-92.
Counsel's Performance at the Plea Stage
Claim 14-counsel's failure to secure Norman's
knowing and voluntary agreement to plead guilty.
claim (14), Norman argues that her counsel was ineffective in
negotiating her plea agreement and encouraging her to accept
first challenges her plea counsel's investigation into
her case, claiming that he provided ineffective assistance by
failing to “move [the] Court to request a copy of the
government's file and/or evidence against [her].”
Doc. 4 at 20. To succeed on her challenge to her
counsel's investigation into her case, Norman is required
to “allege with specificity what [further]
investigation would have revealed and how it would have
altered the outcome” of the proceeding. United
States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989). But
Norman has done neither. She makes no attempt to show what-if
anything-counsel would have discovered had he moved the Court
for additional discovery. And she offers no explanation as to
how any additional discovery would have impacted the outcome
of her proceedings. Thus, Norman is not entitled to relief on
her claim that counsel failed to conduct an adequate pre-plea
next alleges that her counsel was ineffective because he
never explained to her the concept of relevant conduct-that
is, how the amount of loss that she intended to cause would
impact her sentence under the Sentencing Guidelines-and so
her plea was unknowing and involuntary. See Doc.
4 at 20-21 (“The movant did not know that by
pleading guilty to 1 count of healthcare fraud in the amount
of $240.00, she was exposing herself to being sentenced using
the relevant conduct amount of $5, 502, 724.88 . . . . The
movant's attorney never explained relevant conduct to the
succeed on this claim, Norman must present “independent
indicia of the likely merit of [her] allegations” that
her plea counsel never explained the concept of relevant
conduct. United States v. Reed, 719 F.3d 369 (5th
Cir. 2013). She has not done so. Moreover, the record
evidence shows exactly the opposite.
plea counsel signed an affidavit averring that he
“explained the concept of relevant conduct to Ms.
Norman, as well as her sentencing guidelines.” Doc.
28 at 34. Although Norman submitted her own affidavit,
in which she made several statements about her counsel's
actions, she never averred that her plea counsel failed to
explain to her the concept of relevant conduct. Cf.
Doc. 24 at 18-19; see also United
States v. Kayode, 777 F.3d 719, 724 (5th Cir. 2014)
(discounting the movant's reliance on his affidavit where
it did not specifically support post-conviction claim). Thus,
the only direct evidence on this point runs counter to
allegations are further undercut by the record of the
criminal proceedings. Specifically, in her factual resume,
Norman admitted that she had submitted claims totaling $5,
502, 724.88, but that she specifically “retain[ed] the
right to present evidence of legitimate claims at
sentencing.” Crim. Doc. 21 at 4. Norman also
signed a plea agreement in which she acknowledged that she
had “thoroughly reviewed all legal and factual aspects
of this case with her lawyer and . . . [had] received from
her lawyer explanations satisfactory to her concerning each
paragraph of this amended plea agreement, each of her rights
affected by this agreement, and the alternatives available to
her other than entering into this agreement.” Crim.
Doc. 24 at 6-7. One critical “legal and factual
aspect” of this case was Norman's conduct in an
unrelated, uncharged fraud scheme-one that involved
“food and beverage programs administered by the United
States Department of Agriculture.” Crim. Doc. 24 at
3. Norman and the government agreed that her conduct in
that scheme “shall be considered relevant conduct
for purposes of restitution only, ” not relevant
conduct for sentencing purposes. Id. at 3 (emphasis
added). The way in which Norman carefully negotiated her plea
agreement to limit the impact of her relevant conduct at
sentencing-by excluding her uncharged fraud from the analysis
of her relevant conduct and permitting her to rebut the
government's position on the loss amount-is entirely
consistent with her counsel's sworn statement that he did
explain to Norman the concept of relevant conduct. Most
telling is that Norman never sought to withdraw her guilty
plea as unknowing and involuntary after the release of the
PSR that held her accountable for relevant conduct. Because
Norman's claim is unsubstantiated and ...