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Norris v. United States

United States District Court, M.D. Florida, Tampa Division

August 31, 2017

CURTIS NORRIS
v.
UNITED STATES OF AMERICA

          ORDER

          SUSAN C. BUCKLEW United States District Judge.

         This cause comes before the Court on Petitioner Curtis Norris's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 and motion for new trial pursuant to Federal Rule of Criminal Procedure 33 (the “Motion”). (Civ. Doc.1; Crim. Doc. 117). The Government filed a response in opposition to the Motion. (Civ. Doc. 4).[1] Upon review, the Court dismisses Petitioner's Motion.

         I. Background

         On April 9, 2008, Petitioner and Haikeem Clark were indicted on various drug charges in violation of 21 U.S.C. §§ 846 and 841. (Crim. Doc. 1). Clark pleaded guilty to one count of conspiracy to distribute and possess with the intent to distribute 50 grams or more of crack cocaine (Crim. Doc. 16). Petitioner, however, proceeded to trial. (See Crim. Doc. 51).

         At trial, Clark testified against Petitioner. (See Doc. 63). On October 15, 2008, the jury found Petitioner guilty of the following charges: conspiracy to distribute and possess with the intent to distribute 50 grams or more of crack cocaine (Count I); conspiracy to distribute and possess with the intent to distribute marijuana (Count II); distribution and possession with intent to distribute marijuana (Count IV); distribution and possession with intent to distribute 50 grams or more of crack cocaine (Count VII); possession with intent to distribute cocaine (Count VIII); and distribution and possession with intent to distribute marijuana (Count IX). (Crim. Doc. 60).

         Due to Petitioner's prior felony drug convictions, Petitioner faced a mandatory life sentence for Counts I and VII pursuant to 21 U.S.C. § 841(b)(1)(A). (Crim. Doc. 33). On January 15, 2009, Petitioner was sentenced to life imprisonment on Counts I and VII, 120 months' imprisonment on Counts II, IV, and IX, and 360 months' imprisonment on Count VIII, all such terms to run concurrently. (Crim. Docs. 69, 70). On January 6, 2010, following the filing of an Anders brief and the Eleventh Circuit's independent review of the record, Petitioner's sentence was affirmed on appeal. (Crim. Doc. 87).

         Based on Clark's trial testimony against Petitioner, the Government filed a substantial assistance motion pursuant to USSG §5K1.1, requesting a four-level reduction in Clark's offense level. (Crim. Doc. 63). On November 20, 2008, the Court granted this motion (Crim. Doc. 65) and sentenced Clark to 37 months' imprisonment (Crim. Docs. 64, 66).

         On April 27, 2016, the Government filed a motion to appoint counsel for Petitioner because Clark, having served his 37-month sentence, claimed that his trial testimony against Petitioner was false. (Civ. Doc. 114). The Court appointed counsel for Petitioner on May 3, 2016 (Doc. 115), and Petitioner filed this motion to vacate and motion for new trial on April 20, 2017 (Civ. Doc.1; Crim. Doc. 117).

         According to Petitioner, Clark indicated to Petitioner's counsel over the telephone that his trial testimony against Petitioner was “all a lie” and that he had been calling law enforcement for a year to recant his testimony but he was “given the runaround.” (Civ. Doc. 1, pg. 3-4). During a subsequent meeting with Petitioner's counsel, Clark stated that he “testified falsely against [Petitioner] simply to reduce his own sentence, ” that Clark never sold drugs with Petitioner, that Clark was not aware that Petitioner was selling cocaine, and that “[i]nstead of being co-conspirators, [Petitioner] and Mr. Clark [] had personal conflicts between them due to a previous girlfriend.” (Civ. Doc. 1, pg. 4). Clark later gave similar testimony to a private investigator hired by Petitioner's counsel. (Civ. Doc. 1, pg. 5). Clark, however, has refused to sign an affidavit recanting his testimony and refused to respond to further communications from Petitioner's counsel. (Civ. Doc. 1, pg. 5). Moreover, on February 16, 2017, Petitioner's counsel was contacted by a third party who indicted that Clark was demanding $30, 000 in exchange for him signing an affidavit recanting his trial testimony. (Civ. Doc. 1, pg. 6). Without an affidavit from Clark, Petitioner filed affidavits of Petitioner's counsel and the private investigator stating that Clark said that he testified falsely at Petitioner's trial. (Crim. Docs. 117-2, 117-3, and 117-4).

         II. Discussion

         Based on Clark's alleged recantation of his trial testimony, Petitioner argues that his sentence should be vacated pursuant to § 2255 and that he is entitled to a new trial pursuant to Rule 33(b). He asserts that Clark's truthful testimony would have refuted the allegations of conspiracy against Petitioner and likely would have resulted in an acquittal as to Count I, VII, VIII. But for the reasons that follow, Petitioner's claim is not cognizable under § 2255 and is time barred under Rule 33(b). Accordingly, the Court denies Petitioner's Motion.

         A. Petitioner's claims are not cognizable under § 2255

         First, Petitioner's claims are not cognizable under § 2255 because they do not raise any constitutional issue. Indeed, nowhere in Petitioner's motion does he identify a constitutional violation or argue that a constitutional violation occurred.

         Section 2255 may be used to collaterally attack a conviction and sentence “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . or is otherwise subject to collateral attack.” 28 U.S.C § 2255(a). “Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete ...


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