United States v. Norman
| Decision Date | 17 July 2020 |
| Docket Number | Cr. No. 7:17-527-HMH |
| Parties | United States of America v. Thomas Edward Norman, Movant. |
| Court | U.S. District Court — District of South Carolina |
This matter is before the court on Thomas Edward Norman's ("Norman") motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. After a thorough review of the facts and pertinent law, the court grants in part and denies in part Norman's § 2255 motion. Further, the court grants in part and denies in part the Government's motion for summary judgment.
On December 7, 2016, the United States Marshal's Service Fugitive Task Force received information that Norman could be found in a black Camry located at a house on Archer Road. (Tr. Trans. 11, ECF No. 44.) Officers located Norman in the driver's seat and arrested Norman on an outstanding federal arrest warrant for a supervised release violation. (Presentence Investigation Report ("PSR") at ¶ 10.) During a search of Norman, officers located cash in his pocket. (Id.) The officers also removed and searched the sole passenger in the vehicle, Princess Harrison ("Harrison"). (Id.) Officers found a baggie in her hair, which Harrison admitted contained cocaine residue. (Id.) During a search of the vehicle, officers located additional cash, 14.14 grams of cocaine and .55 grams of heroin in a small tied up quarter bag behind the center console, as well as a loaded Taurus 9mm pistol underneath the driver's seat. (Id. at ¶ 11.) The officers later ascertained that the total amount of cash recovered from Norman's person and the floorboard was $1,244. (Tr. Trans. 59, ECF No. 44.)
Norman was charged with three counts: (1) possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e) ("Count 1"); (2) possession with intent to distribute a quantity of heroin and cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) ("Count 2"); and (3) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) ("Count 3"). Norman filed a motion to suppress the evidence obtained from a search of the vehicle, which the court denied on August 22, 2017. After a bench trial held the same day, the court found Norman guilty on all three counts. On March 28, 2018, Norman was sentenced to 156 months' imprisonment, consisting of 96 months' imprisonment on Counts 1 and 2 to be served concurrently, followed by 60 months' consecutive imprisonment on Count 3. Norman appealed his sentence. On August 15, 2019, the United States Court of Appeals for the Fourth Circuit affirmed Norman's conviction and sentence. United States v. Norman, 935 F.3d 232, 241-42 (4th Cir. 2019).
The Fourth Circuit held on appeal that the search of the vehicle was a valid search incident to Harrison's arrest. Id. at 236. The Fourth Circuit found that "[a]fter finding a bag of white powder in Harrison's hair - which she admitted to the arresting officer was cocaine - and observing a suspicious baggie and a large amount of cash in plain view, the officers had a 'reasonable basis' to believe they might find additional drugs in the Camry in which Harrison, an arrestee, was a passenger." Id. (citation omitted) Norman filed the instant § 2255 motion onMarch 2, 2020,1 alleging the following claims: (1) his prior conviction under 21 U.S.C. § 846 was not a "controlled substance offense" and therefore, he should not have received the "six level enhancement" under the United States Sentencing Guidelines ("U.S.S.G."); (2) trial counsel was ineffective in failing to object to the "six-level enhancement"; (3) he should be resentenced under the First Step Act; (4) his Sixth Amendment and due process rights were violated because he was denied the right to confront witnesses, be informed of the nature of the allegations, and to access and review discovery; (5) trial counsel was ineffective in failing to raise a Sixth Amendment violation claim; (6) appellate counsel was ineffective in failing to raise a claim alleging a violation of the confrontation clause; (7) the Government violated its duty to disclose witnesses and evidence; (8) the court violated Rule 701 of the Federal Rules of Evidence in admitting tampered evidence; (9) officers violated the Fourth Amendment in searching an "inoperable" vehicle that was located in "the curtilage" of a home; (10) trial counsel and appellate counsel were ineffective in failing to challenge the search of the vehicle located in "the curtilage" of a home; (11) the search of the vehicle was improper because it was not a search incident to the arrest of the passenger; (12) appellate counsel was ineffective in failing to challenge the search of the vehicle as an invalid search incident to arrest; and (13) his conviction for felon in possession of a firearm fails to satisfy the requirements of Rehaif v. United States, 139 S. Ct. 2191 (2019).2 (§ 2255 Mot., generally, ECF No. 58.)
The court ordered the Government to respond to Norman's motion on March 3, 2020. After receiving two extensions, the Government filed a response and motion for summary judgment on May 18, 2020. (Gov't Mot. Summ. J., ECF No. 71.) Norman filed a response in opposition to the motion for summary judgment on June 1, 2020. (Resp. Opp'n, ECF No. 74.) This matter is now ripe for consideration.
Summary judgment is appropriate only "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In deciding whether a genuine issue of material fact exists, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, Id. at 248.
A litigant "cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate." Monahan v. County of Chesterfield, 95 F.3d 1263, 1265 (4th Cir. 1996).
As an initial matter, "[h]abeas review is an extraordinary remedy and will not be allowed to do service for an appeal." Bousley v. United States, 523 U.S. 614, 621 (1998) (citations and internal quotation marks omitted). For this reason, Norman "will not be allowed to recast, under the guise of collateral attack, questions fully considered" on appeal. Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976). Norman appealed claims one, nine, and eleven raised in his motion. With respect to claim one, Norman challenged on appeal whether the six-point increase in the base offense level based on his 2008 drug conviction was proper, and the Fourth Circuit held that the court did not commit plain error in finding that Norman's 2008 drug conviction qualified as a controlled substance offense under U.S.S.G. § 4B1.2(b). Norman, 935 F.3d at 241-42. With respect to claims nine and eleven, the Fourth Circuit held that the "officers' search of the Camry was a valid search incident to the arrest of [the passenger,] Harrison." Id. at 236. Therefore, any challenge with respect to the search of the vehicle was fully considered on appeal. Based on the foregoing, grounds one, nine, and eleven have been fully considered and cannot be reconsidered here.
Further, if a movant directly appeals his sentence or conviction, issues that might have been but were not raised on direct appeal may not be raised subsequently in a § 2255 motion. Sanders v. United States, 230 F.2d 127, 127 (4th Cir. 1956). Generally, "claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice." Massaro v. United States, 538 U.S. 500, 504 (2003) (citations omitted). Norman did not raise claim four, alleging that his Sixth Amendment and due process rights were violated because he was denied the right to confront witnesses, be informed of the nature of theallegations, and to access and review discovery, or claim eight, alleging that the court violated Rule 701 of the Federal Rules of Evidence in admitting tampered evidence, on appeal. Thus, Norman "must show both (1) 'cause' excusing his . . . procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 167-68 (1982).
To establish "actual prejudice," contemplated in the first prong, the movant must show that the alleged error resulted in an "actual and substantial disadvantage," rather than a mere "possibility of prejudice." Satcher v. Pruett, 126 F.3d 561, 572 (4th Cir. 1997) (quoting Murray v. Carrier, 477 U.S. 478, 494 (1986)). To demonstrate a miscarriage of justice, contemplated in the second prong, the movant must prove "actual innocence" of the crime for which he was convicted, substantiating that "in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley, 523 U.S. at 623 (citations and internal quotation marks omitted).
Norman has failed to show cause and actual prejudice. Norman does not explain what cause prevented him from raising the issues on appeal. "[A] petitioner cannot establish cause when the facts underlying the claim were in existence and were available upon a reasonably diligent search." Rose v. Lee, 252 F.3d 676, 687 (4th Cir. 2001). Ineffective assistance of counsel can constitute "cause" excusing a procedural default. Murray v. Carrier, 477 U.S....
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