(D.C. Nos. 5:06-CR-00180-F-1 and 5:09-CV-01063-F) (W.D. Oklahoma)
Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior Circuit Judge.
ORDER AND JUDGMENT [*]
Stephen H. Anderson Circuit Judge
Petitioner and Appellant, Michael Dwight Norwood, proceeding pro se, seeks a certificate of appealability ("COA") in order to appeal the denial of his Fed.R.Civ.P. 60(b) and 60(d) motions for relief from his sentence. Finding that, with respect to part of his petition, Mr. Norwood has failed to demonstrate that he is eligible for a COA, we deny him a COA. We affirm the denial of the remainder of his request.
On August 2, 2006, Mr. Norwood was charged by indictment with three counts of distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The distribution counts stemmed from controlled buys involving Mr. Norwood on three different occasions. On October 10, 2006, the government filed an information pursuant to 21 U.S.C. § 851, in order to establish a prior felony drug conviction. On October 12, 2006, Mr. Norwood pled guilty to all counts of the indictment.
In preparation for sentencing under the United States Sentencing Commission, Guidelines Manual ("USSG"), the probation office prepared a presentence investigation report ("PSR"). Mr. Norwood filed objections to the PSR. The probation office prepared a revised PSR. The revised PSR stated that the base offense level under the Guidelines for counts 1 through 3 was 38, based upon the involvement of 360, 700.02 kilograms of marijuana equivalent. This marijuana equivalent resulted from drug transactions involving Mr. Norwood and attributable to him as relevant conduct, which occurred between 1988 and 2006. The PSR added two points to his base offense level pursuant to USSG § 2D1.1(b)(1) on the basis that Mr. Norwood possessed a firearm during the commission of the offenses charged. Pursuant to USSG § 3B1.1(a), four points were added because Mr. Norwood was an organizer or leader of criminal activity involving at least five participants. This brought the adjusted offense level for the first three counts to 44. The adjusted offense level for count 4 was also 44. After subtracting two points for acceptance of responsibility, the total offense level was 42. With a criminal history category of IV, the applicable advisory Guidelines sentencing range was 360 months to life imprisonment.
On March 7, 2007, acting pro se, Mr. Norwood asked the court via letter for a hearing in order to change his plea to not guilty. Two days later (on March 9, 2007), Mr. Norwood filed a Withdrawal of Motion to Withdraw Guilty Plea.
On March 12, 2007, Mr. Norwood filed a sentence memorandum, which included objections to the revised PSR. He specifically objected to the use of old relevant conduct to increase his sentence. Mr. Norwood argued, inter alia, that he should be held accountable only for the methamphetamine charged in the indictment (320 kilograms of marijuana equivalent), and that his sentence should be ten years (the mandatory minimum for count 3).
The court held a sentencing hearing which spanned three days: March 30, April 2 and April 6, 2007. The government called ten witnesses.
On June 1, 2007, the court determined that, for sentencing purposes, Mr. Norwood was accountable for 74, 660.34 kilograms of marijuana equivalent drugs (rather than the 360, 700.02 kilograms urged by the government). Nonetheless, Mr. Norwood's USSG base offense level remained at 38, and the court determined that his total offense level was 42. The court sentenced Mr. Norwood to 360 months' imprisonment for counts 1 and 2; life imprisonment for count 3; and 120 months' imprisonment for count 4, all terms to run concurrently.
Shortly after judgment was entered on June 4, 2007, Mr. Norwood's counsel filed a motion seeking to withdraw as counsel. The court granted the motion and appointed another counsel for Mr. Norwood. New counsel filed a notice of appeal with our court. On appeal, new counsel raised one issue-that the trial court based Mr. Norwood's sentences on testimony that lacked indicia of reliability. On November 27, 2007, Mr. Norwood sent a letter to our court requesting that his counsel be removed, his appeal stopped, and new counsel appointed. On December 12, 2007, his counsel also sought leave to withdraw from representation.
On December 26, 2007, our court affirmed Mr. Norwood's sentence. United States v. Norwood, 259 Fed.Appx. 157 (10th Cir. 2007), cert. denied, 555 U.S. 934 (2008). We also appointed the Federal Public Defender to represent Mr. Norwood. New appellate counsel filed a motion seeking to raise new issues in a petition for rehearing. The new issues Mr. Norwood sought to raise were: (1)earlier drug transactions did not meet the definition of relevant conduct; (2)Mr. Norwood's sentence violated the Fifth Amendment because the "sentencing tail was wagging the substance dog of the offense"; and (3) Mr. Norwood's sentence was substantively unreasonable. Order at 4; R. Vol. 1 at 46. Our court granted the motion. We subsequently denied the petition for rehearing, with one judge stating that he would have granted the petition. Appellate counsel filed a petition for a writ of certiorari with the United States Supreme Court. The Court denied the petition. Norwood v. United States, 555 U.S. 934 (2008).
On September 28, 2009, Mr. Norwood filed a pro se motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, claiming ineffective assistance of counsel. The court denied the motion and declined to grant a COA. Mr. Norwood appealed, raising the following issues: (1) his plea was unknowing and involuntary because his attorney had miscalculated his possible sentence; (2) his attorney threatened him to induce him not to pursue his motion to withdraw his plea; (3) his attorney was ineffective at sentencing, in that he failed to argue that officers had engaged in unnecessary controlled buys just to increase his sentence, that uncharged drug transactions were improperly attributed to him in computing the drug quantity for offense level purposes, and that he was not eligible for a leadership-role enhancement; and (4) his appellate attorney was ineffective in failing to raise the drug-quantity and leadership enhancement arguments, in failing to argue that the court used the wrong standard of proof in finding sentencing facts, and in failing to argue that his ...