United States v. Norris Fisher ( 2018 )

Case: 17-10980 Document: 00514686540 Page: 1 Date Filed: 10/17/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-10980 October 17, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
NORRIS LYNN FISHER,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CV-684
USDC No. 4:10-CR-74-1
Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM: *
Norris Lynn Fiser, federal prisoner # 41251-177, is serving a 240-month
sentence for his convictions of conspiring to commit mail fraud and three
counts of committing mail fraud. He seeks a certificate of appealability (COA)
to appeal the district court’s order denying his motions for (1) relief under
Federal Rule of Civil Procedure 60(b) from the denial of his unsuccessful 28
U.S.C. § 2255 motion; (2) leave to amend his Rule 60(b) motion and for his
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-10980 Document: 00514686540 Page: 2 Date Filed: 10/17/2018
No. 17-10980
memorandum in support of his Rule 60(b) motion to exceed 30 pages; (3) leave
to proceed in forma pauperis (IFP); (4) the appointment of counsel; and (5) a
transfer of his proceedings to the Southern District of New York.
To obtain a COA, Fisher must make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S.
473, 483–84 (2000). Because Fisher is appealing procedural rulings, we will
issue a COA only if he shows that “jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right
and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack, 529 U.S. at 484.
In his various filings, Fisher raised claims challenging his conviction,
sentence, and the district court’s denial of his § 2255 motion on the merits. We
construe those claims as unauthorized successive § 2255 motions over which
the district court lacked jurisdiction. See Gonzalez v. Crosby, 545 U.S. 524,
530–33 (2005); United States v. Hernandes, 708 F.3d 680, 681 (5th Cir. 2013).
Fisher’s challenge to the district court’s denial of those claims does not deserve
encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 327
(2003).
Fisher also alleged errors in the district court’s handling of his § 2255
proceedings. Although those claims constituted bona fide requests for Rule
60(b) relief, Fisher has not identified any abuse of discretion in the district
court’s denial of his motion, and jurists of reason would not debate the district
court’s denial of those claims. Fisher’s motion for a COA to appeal the district
court’s denial of his unauthorized successive § 2255 motions and Rule 60(b)
motion is DENIED.
Fisher does not need a COA to appeal the district court’s denials of his
motions for leave to proceed IFP, for the appointment of counsel (to the extent
2
Case: 17-10980 Document: 00514686540 Page: 3 Date Filed: 10/17/2018
No. 17-10980
Fisher actually sought the appointment of counsel), and for a transfer (to the
extent Fisher actually sought a transfer). See 28 U.S.C. § 2253(c)(1)(B);
Harbison v. Bell, 556 U.S. 180, 183 (2009). His motion for a COA to challenge
those decisions is DENIED as unnecessary. However, Fisher does not assert
that the district court erred in denying any of those motions and has
abandoned any challenge he might have raised. See Hughes v. Johnson, 191
F.3d 607, 613 (5th Cir. 1999). The district court’s denial of those motions is
AFFIRMED.
With his appeal, Fisher has filed motions for the appointment of counsel
and to amend his motion for a COA. Those motions are DENIED.
Fisher also has filed a motion that effectively asks this court to issue a
writ of mandamus to the Federal Public Defender’s Office for the Northern
District of Texas, the United States Attorney’s Office for the Northern District
of Texas, the Federal Public Defender’s Office, and United States District
Judge Barbara Lynn ordering release of information he has requested, and to
the Department of Justice and the Federal Bureau of Investigation ordering
an investigation. That motion is DENIED. See In re Willy, 831 F.2d 545, 549
(5th Cir. 1987).
Finally, Fisher has moved for this court to vacate his sentence and order
his release from prison. Fisher appears to attempt to invoke original habeas
corpus jurisdiction in this court pursuant to 28 U.S.C. § 2241. Section 2241
does not grant federal courts of appeals jurisdiction to entertain an original
petition for habeas corpus. 28 U.S.C. § 2241. To the extent individual judges
of this court may retain jurisdiction to entertain such a petition, see Felker v.
Turpin, 518 U.S. 651, 660–61 & n.3 (1996), the members of this panel decline
to do so. Fisher’s motion is DENIED.
3
Case: 17-10980 Document: 00514686540 Page: 4 Date Filed: 10/17/2018
No. 17-10980
Fisher is warned that repeated filing of frivolous challenges to his
convictions and sentences in this court, or any court subject to this court’s
jurisdiction, may result in the imposition of sanctions, including dismissal,
monetary sanctions, and possibly denial of access to the judicial system.
4