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Norman v. United States

United States District Court, N.D. Mississippi, Oxford Division

March 26, 2019

LARRY NORMAN MOVANT
v.
UNITED STATES OF AMERICA RESPONDENT

          MEMORANDUM OPINION

          SHARION AYCOCK, U.S. DISTRICT JUDGE

         This matter comes before the court on the motion of Larry Norman to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The government has responded to the motion; Mr. Norman has replied, and the matter is ripe for resolution. For the reasons set forth below, the instant motion to vacate, set aside, or correct sentence will be denied.

         Habeas Corpus Relief Under 28 U.S.C. § 2255

         The writ of habeas corpus, a challenge to the legal authority under which a person may be detained, is ancient. Duker, The English Origins of the Writ of Habeas Corpus: A Peculiar Path to Fame, 53 N.Y.U.L.Rev. 983 (1978); Glass, Historical Aspects of Habeas Corpus, 9 St. John's L.Rev. 55 (1934). It is “perhaps the most important writ known to the constitutional law of England, ” Secretary of State for Home Affairs v. O'Brien, A.C. 603, 609 (1923), and it is equally significant in the United States. Article I, § 9, of the Constitution ensures that the right of the writ of habeas corpus shall not be suspended, except when, in the case of rebellion or invasion, public safety may require it. Habeas Corpus, 20 Fed. Prac. & Proc. Deskbook § 56. Its use by the federal courts was authorized in Section14 of the Judiciary Act of 1789. Habeas corpus principles developed over time in both English and American common law have since been codified:

The statutory provisions on habeas corpus appear as sections 2241 to 2255 of the 1948 Judicial Code. The recodification of that year set out important procedural limitations and additional procedural changes were added in 1966. The scope of the writ, insofar as the statutory language is concerned, remained essentially the same, however, until 1996, when Congress enacted the Antiterrorism and Effective Death Penalty Act, placing severe restrictions on the issuance of the writ for state prisoners and setting out special, new habeas corpus procedures for capital cases. The changes made by the 1996 legislation are the end product of decades of debate about habeas corpus.

Id.

         Section 2255 Proceedings

         Section 28 U.S.C. § 2255 permits an inmate serving a sentence after conviction of a federal crime “to move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). As with the writ of habeas corpus, see 28 U.S.C. §§ 2241, 2254, a § 2255 motion sets forth only four bases on which a motion may be made: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is “otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Thus, a prisoner must claim either a constitutional violation or want of subject matter jurisdiction to invoke 28 U.S.C. § 2255. In the absence of constitutional or jurisdictional defects, a federal prisoner may invoke § 2255 only if the error constitutes “a fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185 (1979).

         The district court must first conduct a preliminary review of a section 2255 motion, and “[i]f it plainly appears from the motion, any attached exhibits, and the record of the prior proceeding that the moving party is not entitled to relief, the judge must dismiss the motion.” Rules Governing Section 2255 Proceedings, Rule 4(b). If the motion raises a non-frivolous claim to relief, the court must order the Government to file a response or to take other appropriate action. Id. The judge may then require the parties to expand the record as necessary and, if good cause is shown, authorize limited discovery. Rules Governing Section 2255 Proceedings, Rules 6-7.

         After reviewing the government's answer, any transcripts and records of prior proceedings, and any supplementary materials submitted by the parties, the court must decide whether an evidentiary hearing is warranted. Rules Governing Section 2255 Proceedings, Rule 8. Under the statute, an evidentiary hearing must be held unless “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). However, the court need not hold an evidentiary hearing if the prisoner fails to produce “independent indicia of the likely merit of [his] allegations.” United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006) (quoting United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998)).

         Ultimately, the petitioner bears the burden of establishing his claims of error by a preponderance of the evidence. See Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980). For certain “structural” errors, relief follows automatically once the error is proved. See Burgess v. Dretke, 350 F.3d 461, 472 (5th Cir. 2003). For other errors at the trial court level, the court may grant relief only if the error “had substantial and injurious effect or influence” in determining the outcome of the case. Brecht v. Abrahmson, 507 U.S. 619, 637 (1993); see also United States v. Chavez, 193 F.3d 375, 379 (5th Cir. 1999) (applying Brecht's harmless error standard in a § 2255 proceeding). If the court finds that the prisoner is entitled to relief, it “shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b).

         Facts and Procedural Posture

Larry Norman was charged in a four-count indictment:
COUNT ONE
On or about June 13, 2008, in the Northern District of Mississippi, LARRY NORMAN did take by force and violence and by intimidation from the person and presence of a bank employee approximately $10, 000, belonging to and in the care, custody and control of Merchants and Farmers Bank, 1287 Stateline Road, Southaven, DeSoto County, Mississippi, whose deposits were then insured by the Federal Deposit Insurance Corporation, and in committing said bank robbery did put in jeopardy the life of the bank employee by means of a dangerous weapon, that is a handgun; in violation of Title 18 of the United States Code Sections 2113(a) and (d).
COUNT TWO
On or about June 13, 2008, in the Northern District of Mississippi, LARRY NORMAN, defendant, during and in relation to and in the furtherance of a crime of violence, to-wit, the armed bank robbery of the Merchants and Farmers Bank, 1287 Stateline Road, Southaven, DeSoto County, Mississippi, did possess, carry, use, and brandish a firearm, that is, a handgun; in violation of Title 18, United States Code, Section 924(c)(1)(A)(ii) and (iii).
COUNT THREE
On or about June 25, 2008, in the Northern District of Mississippi, LARRY NORMAN, defendant, did take by force and violence and by intimidation from the person and presence of a bank employee approximately $7, 600 belonging to and in the care, custody and control of Merchants and Farmers Bank, 1287 Stateline road, Southaven, DeSoto County, Mississippi, whose deposits were then insured by the Federal Deposit Insurance Corporation, and in committing said bank robbery did put in jeopardy the life of the bank employee by means of a dangerous weapon, that is a handgun; in violation of Title 18 of the United States Code Sections 2113(a) and (d).
COUNT FOUR
On or about June 25, 2008, in the Northern District of Mississippi, LARRY NORMAN, defendant, during and in relation to and in furtherance of a crime of violence, to-wit, the armed bank robbery of the Merchants and Farmers Bank, 1287 Stateline Road, Southaven, DeSoto County, Mississippi, did possess, carry, use and brandish a firearm, that is, a handgun; in violation of Title 18 United States Code, Section 924(c)(1)(A)(ii) and (C)(i).

Doc. 1.

         Under a plea agreement, Count Four was dismissed, and Mr. Norman pled guilty to Counts One, Two, and Three. Doc. 36. The court imposed a sentence of a total of 300 months' incarceration - 216 months on Counts One and Three (served concurrently) and 84 months on Count Two (served consecutively to the sentence on Counts One and Three). Doc. 47.

         Mr. Norman then filed a motion to vacate sentence under 28 U.S.C. § 2255, in which he presents the following claims for relief (which the court restates in the interest of brevity and clarity):

(1) He does not qualify as an Armed Career Criminal because the Tennessee statute used to qualify him as an Armed Career Criminal (Tenn. Code Ann. § 39-17-417(c)(2) has a broader definition than the term “controlled substance offense” under the United States Sentencing Guidelines § 4B1.2, citing United States v. Hinkle, 832 F.3d 569 (5th Cir. 2015). He argues that the element “knowingly” in his state convictions removes those convictions from consideration to determine career offender status.
(2) Bank Robbery under 18 U.S.C. § 2113(a) is not a crime of violence for the purposes 18 U.S.C. § 924(c)(3)(A) and (c)(3)(B), as those statutes are unconstitutionally vague, citing Sessions v. Dimaya, 584 U.S. (2018). In addition, the second paragraph of § 2113(a) renders the statute categorically broader than the term “crime of violence, ” citing Mathis v. United States, 136 S.Ct. 2243 (2016).
(3) The firearm charge under 18 U.S.C. § 924(c)(1)(A)(ii) and (C)(i) is invalid because there was no proof that anyone's life was in jeopardy and Mr. Norman did not put anyone in harm's way.
(4) The two-level enhancement for fleeing and eluding law enforcement is invalid because fleeing and eluding are not crimes of violence under the Armed Career Criminal Act (ACCA). Fleeing and eluding are not enumerated offenses, and ...

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