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Norman v. United States

United States District Court, N.D. Texas, Dallas Division

April 27, 2018

ALEXIS C. NORMAN, # 49210-177, Movant,
v.
UNITED STATES OF AMERICA Respondent.

          FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          RENEE HARRIS TOLIVER UNITED STATES MAGISTRATE JUDGE

         Pursuant 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 PREJUDICE.

         I. BACKGROUND

         Alexis 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 at 3.

         A 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.

         Norman 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.

         At 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.

         At the 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.

         Over 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.

         Norman's 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.

         II. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

         The 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.

         A. Counsel's Performance at the Plea Stage

         1. Claim 14-counsel's failure to secure Norman's knowing and voluntary agreement to plead guilty.

         In claim (14), Norman argues that her counsel was ineffective in negotiating her plea agreement and encouraging her to accept it.

         Norman 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 investigation.

         Norman 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 movant.”).

         To 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.

         Norman's 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 Norman's allegations.

         Norman's 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 ...


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