United States v. Norton

UNITED STATES OF AMERICA v. LARRY J. NORTON

Nos. 1:15-CR-2-3-TLS-SLC, 1:19-CV-523-TLS

United States District Court, N.D. Indiana, Fort Wayne Division

September 15, 2021

OPINION AND ORDER

JUDGE THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT

This matter is before the Court on Defendant Larry J. Norton's Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 [ECF No. 399] and his Motion for Return of Property [ECF No 401]. Based on the Defendant's filings, the Court concludes that he is able to represent his interests and denies his request for appointed counsel. Because the Defendant's arguments are without merit, his Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 [ECF No 399] is dismissed and his Motion for Return of Property [ECF No. 401] is denied.

BACKGROUND

In July 2014, the Federal Bureau of Investigation (FBI) recruited an informant who provided information on the inner circle of a drug trafficking operation led by Allan Bates. May 26, 2016 Op. & Order 1, ECF No. 144. Through their investigation the FBI identified the Defendant, Larry Norton, as member of the conspiracy, who was responsible for counting money and distributing controlled substances. Id. Investigators believed that on November 7, 2014, the Defendant would be transporting drug proceeds. Id. They conducted surveillance, initiated a traffic stop, and obtained a search warrant for his vehicle. Id. Their search revealed hidden compartments containing more than $400, 000. Id.

The Indictment [ECF No. 1] was filed with the Court on January 28, 2015, charging the Defendant with knowingly and intentionally conspiring, combining, confederating, and agreeing with other persons to distribute and possess with the intent to distribute controlled substances, including one kilogram or more of a mixture and substance containing a detectable amount of heroin, five kilograms or more of a mixture and substance containing a detectable amount of cocaine, and marijuana, in violation of 21 U.S.C. § 846. Indictment, ECF No. 1. On June 24, 2015, the Defendant filed a Motion to Suppress [ECF No. 75] that sought to suppress all evidence collected in connection with the November 7, 2014 traffic stop. The Court denied the Defendant's Motion to Suppress, concluding that there was probable cause to believe that the Defendant committed a traffic violation, thus justifying the traffic stop, and that the stop was otherwise justified due to the reasonable suspicion of criminal activity at the time of the stop. See May 26, 2016 Op. &amp Order 6, 9, ECF No. 144; Apr. 28, 2016 R. & R. 14, 18, ECF No. 135.

On May 31, 2017, the jury returned a verdict of guilty after a six-day trial, see ECF Nos. 242-47, and the Court denied the Defendant's Motion for a Directed Verdict, see Id. at 247. The Court then sentenced the Defendant to a term of life imprisonment. See Id. at 287. The Defendant filed an appeal, see Id. at 289, and the Seventh Circuit affirmed the Court's decision, see Id. at 343. The Defendant then petitioned the Supreme Court for a writ of certiorari, but his petition was denied on December 3, 2018. Norton v. United States, 139 S.Ct. 610 (Mem) (2018). He then filed the pending § 2255 Motion [ECF No. 399] and the Motion for Return of Property [ECF No. 401].

ANALYSIS

A. Section 2255 Motion

Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, district courts must conduct a preliminary review of § 2255 motions. The Rule states, in relevant part, that “[i]f it plainly appears from the motion, any attached exhibits, and the record of the prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion . . . .” Rule 4(b) of Rules Governing Section 2255 Proceedings. The Defendant's § 2255 Motion is untimely and does not present a meritorious argument for relief; therefore, the § 2255 Motion is dismissed.

1. The Defendant Has Failed to Demonstrate that His Motion Is Timely

The Defendant's Motion is untimely on its face and, therefore, does not withstand Rule 4(b) review.

Section 2255(f) provides:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f). The Defendant's § 2255 Motion does not allege that government action impeded him from making a motion, that the Supreme Court has recognized a new right and made that right retroactively applicable to cases on collateral review, or that new facts supporting his claim were discovered. Therefore, the 1-year period of limitation shall run from the date his judgment of conviction became final.

If a defendant unsuccessfully petitions the Supreme Court for a writ of certiorari, the conviction becomes final on the day the Supreme Court denies the petition. See Robinson v. United States, 416 F.3d 645, 650 (7th Cir. 2005). Therefore, the Defendant's conviction became final on December 3, 2018. Norton, 139 S.Ct. 610 (Mem). Accordingly, the Defendant, as a prisoner acting without an attorney, had until December 3, 2019, see United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (“The first day of the 1-year limitation period is the day after the Supreme Court denies certiorari, giving defendants until the close of business on the anniversary date of the certiorari denial to file their habeas motion.”), to deliver his § 2255 Motion to the prison authorities to be forwarded to the clerk of this Court, see Jones v. Bertrand, 171 F.3d 499, 501 (7th Cir. 1999) (“Therefore, for the purposes of a prisoner filing a pro se notice of appeal, the Supreme Court adopted a bright line test and held that it is timely filed for statute of limitations purposes so long as it is delivered to the prison authorities before the 30-day statute of limitations has expired and not when it is actually received by the clerk.” (citing Houston v. Lack, 487 U.S. 266, 275-76 (1988))).^[1] The Defendant did not date his filings, and nothing has been provided to the Court indicating that he timely delivered his § 2255 Motion. Accordingly, the Defendant has not provided the Court sufficient information to invoke the mailbox rule. The Seventh Circuit has occasionally required district courts to engage in fact finding to determine if a defendant's motion was timely filed according to the mailbox rule. See May v. Mahone, 876 F.3d 896, 899 (7th Cir. 2017). In this instance, the Court need not inquire further into whether the Defendant's § 2255 Motion was timely because it must be dismissed on the merits.

2. The Defendant's Motion Fails on the Merits

The Defendant's § 2255 Motion presents six grounds for relief, five of which argue that he received ineffective assistance of counsel. It is well established that a defendant claiming ineffective assistance of counsel must show that his “‘counsel's performance was deficient' and ‘the deficient performance prejudiced the defense.'” Bridges v. United States, 991 F.3d 793, 803 (7th Cir. 2021) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). That is, the defendant must show “(1) that his trial attorney's performance fell below an objective standard of reasonableness, and (2) that he suffered prejudice as a result.” Edmond v. United States, 899 F.3d 446, 452 (7th Cir. 2018) (citing Strickland, 466 U.S. at 687-96). To show that an attorney's performance fell below an objective standard of reasonableness, the defendant must “specifically identify acts or omissions that form the basis of his claim of ineffective assistance.” United States v. Redd, No. 1:03-CR-53, 2007 WL 1724900, at *7 (N.D. Ind. June 11, 2007) (citing Strickland, 466 U.S. at 690). Further, a defendant attempting to establish that he has been prejudiced “must show ‘that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'” Bridges, 991 F.3d at 808 (quoting Strickland, 466 U.S. at 694)). Indeed, “[b]ald allegations of prejudice are insufficient to demonstrate ineffective assistance of counsel.” Redd, 2007 WL 1724900, at *8 (citing Barkauskas v. Lane, 946 F.2d 1292, 1295 (7th Cir. 1991)). If a defendant cannot establish one of the Strickland prongs, the Court need not consider the other. Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014).

The Defendant has alleged five instances in which he received inadequate representation: ineffective assistance of counsel during the pretrial process regarding discrepancies in the search warrant and the report of traffic stop (Ground One) ineffective assistance of counsel during the pretrial process regarding the federal rules of evidence (Ground Two), ineffective assistance of counsel during trial for failure to call a particular witness (Ground Three), ineffective assistance of counsel during trial for failure to advise the Defendant on his right to testify (Ground Four), and ineffective counsel based on the cumulative impact of multiple deficiencies or errors by counsel at all levels (pretrial, plea, trial, sentencing, and appeals) of the criminal process (Ground Five). § 2255 Mot. pp. 3-9. The Defendant also makes a catch-all...