United States District Court, D. Minnesota
MEMORANDUM AND ORDER
A. Magnuson United States District Court Judge
matter is before the Court on Defendant Norman Scott
Allen's Motion to Vacate and Motion to Reduce Sentence.
For the following reasons, the Motions are denied.
September 6, 2012, a jury convicted Allen of conspiracy to
commit bank fraud and aiding and abetting bank fraud, and
acquitted him of aiding and abetting aggravated identity
theft and a separate count of aiding and abetting bank fraud.
(Docket No. 586.) The Court sentenced Allen to 80 months'
imprisonment and ordered him to pay $86, 712.09 in
restitution. (Sent. Judg. (Docket No. 920) at 2-4.) The
Eighth Circuit Court of Appeals affirmed Allen's
conviction and sentence on February 20, 2015. United
States v. Maxwell, 778 F.3d 719 (8th Cir. 2015). The
Supreme Court denied Allen's petition for a writ of
certiorari. Allen v. United States, 136 S.Ct. 319
(2015) (Mem). In October 2016, Allen filed a Motion to Vacate
under 28 U.S.C. § 2255 and a Motion to Reduce Sentence
under 18 U.S.C. § 3582.
28 U.S.C. § 2255
federal prisoner may move the court which imposed his
sentence to vacate, set aside, or correct the sentence if the
court lacked jurisdiction to impose the sentence, or if the
sentence was imposed in violation of the Constitution or
federal law, in excess of the maximum authorized by law, or
otherwise subject to collateral attack. 28 U.S.C. §
2255(a). “Issues raised and decided on direct appeal
cannot ordinarily be relitigated in a collateral proceeding
based on 28 U.S.C. § 2255.” United States v.
Wiley, 245 F.3d 750, 752 (8th Cir. 2001).
claims that there are seven grounds on which he is entitled
to relief under § 2255. Allen argues that (1) there was
insufficient evidence to convict him; (2) he was unfairly
prejudiced by “spillover evidence” that did not
pertain to him; (3) the Court erred when calculating
Allen's sentencing enhancements; (4) the Court
erroneously instructed the jury; (5) the verdict form did not
accurately reflect the law; (6) the Court erroneously denied
Allen's motion for judgment of acquittal; and (7)
Allen's counsel was constitutionally ineffective.
(Pet'r's Supp. Mem. (Docket No. 1148) at 4-50.) The
first six grounds for relief, however, all cover issues that
Allen previously raised, and the Eighth Circuit decided, on
direct appeal. See Maxwell, 778 F.3d at 728-38. The
Court will therefore only address Allen's claim that he
received ineffective assistance of counsel.
prove ineffective assistance of counsel, Allen must show
that: “(1) his counsel so grievously erred as to not
function as the counsel guaranteed by the Sixth Amendment;
and (2) his counsel's deficient performance prejudiced
his defense.” United States v. Auman, 67 F.3d
157, 162 (8th Cir. 1995) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). The performance
prong of the effective assistance inquiry requires a showing
“that counsel's representation fell below an
objective standard of reasonableness.”
Strickland, 466 U.S. at 688. “Prejudice”
requires a reasonable probability that the result of the
proceeding would have been different but for counsel's
errors. York v. Lockhart, 856 F.2d 61, 63 (8th Cir.
claims that his counsel was constitutionally ineffective in
six ways. First, Allen claims generally that his counsel
failed to investigate the case and prepare for trial. The
Court observed Allen's attorney throughout trial and
vehemently disagrees with Allen's assessment. Allen's
counsel zealously advocated at trial by cross-examining and
discrediting multiple witnesses, objecting to the
Government's leading questions, moving for a judgment of
acquittal, and arguing that Allen's business accounts
were legitimate. Indeed, counsel's trial performance was
a key reason why the jury acquitted Allen on the aiding and
abetting aggravated identity theft charge and the additional
aiding and abetting bank fraud charge.
Allen claims that his counsel failed to interview potential
witnesses and subpoena certain bank records. According to
Allen, had his counsel called these witnesses to the stand
and introduced these bank records into evidence, the jury
would have known that he was in regular contact with these
financial institutions “about insufficient funds checks
written on account, ” and that “no other person
other than [Allen] tried to become a signer on the
account.” (Pet'r's Supp. Mem. at 46-47.) Allen,
however, fails to show how such evidence would have changed
the result of his trial. On the contrary, testimony that no
one else attempted to become a signer on Allen's account
may have strengthened the Government's case by
emphasizing Allen's control over the account and
fraudulent checks. And evidence that Allen paid fees related
to insufficient funds on the accounts could have been
damaging if characterized as an attempt to conceal the
scheme. Counsel's failure to introduce such evidence was
not ineffective assistance of counsel.
Allen claims that his attorney fell asleep during trial and
cites to a transcript of a trial proceeding from November 7,
2012. The trial, however, took place in September and October
and there is no transcript from November 7, 2012 on the
docket. Moreover, the Court does not recall any attorney
sleeping during this trial. But even assuming Allen's
allegation is true, Allen still fails to show how the result
of the proceeding would have been different had his counsel
not fallen asleep. This claim fails.
Allen complains that his counsel stipulated to the element of
bank fraud that required the Government to prove the Federal
Deposit Insurance Corporation insured the financial
institutions that Allen defrauded. But stipulations are part
of a reasonable trial strategy and do not constitute
ineffective assistance of counsel. See Lemon v. United
States, 335 F.3d 1095, 1096 (8th Cir. 2003). This
stipulation was especially appropriate, as even Allen fails
to argue that the FDIC did not in fact insure the financial
institutions. Counsel's stipulation was anything but
Allen claims that he struck a juror during voir dire, but
that juror somehow remained on the panel and eventually
became the foreperson. Allen requested that his counsel bring
this mix-up to the Court's attention, but counsel
refused. There is simply no evidence in record, however, that
this occurred. Moreover, Allen has failed to show that the
result of the ...