United States v. Norris

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 17, 2002
• Docket: 01-50779
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50779 USDC No. A-98-CR-281-2-JN USDC No. A-00-CV-593-JN

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CURTIS DARRYL NORRIS,

Defendant-Appellant.

--------------------

Appeal from the United States District Court for the Western District of Texas

-------------------- April 16, 2002

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Curtis Norris seeks a certificate of appealability (COA)

to appeal the district court’s denial of his 28 U.S.C. § 2255

motion.

Norris must obtain a COA to proceed on appeal. See 28

U.S.C. § 2253(c)(1)(B). A COA may be issued only if Norris has

made a "substantial showing of the denial of a constitutional

right." 28 U.S.C. § 2253(c)(2). Norris can satisfy this standard

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. O R D E R No. 01-50779 - 2 -

if he shows "that 'reasonable jurists could debate whether (or, for

that matter agree that) the [§ 2255 motion] should have been

resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.'" Wheat v.

Johnson, 238 F.3d 357, 359-60 (5th Cir.) (citations omitted), cert.

denied, 121 S. Ct. 2226 (2001). Furthermore, "[w]here a district

court has rejected constitutional claims on the merits, . . . [t]he

[movant] must demonstrate that reasonable jurists would find the

district court's assessment of the constitutional claims debatable

or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).

The district court made insufficient findings on the

controlling factual question, whether Norris requested counsel to

file an appeal and whether counsel agreed to do so. See United

States v. Daly, 823 F.2d 871, 872 (5th Cir. 1987) (findings and

conclusions upon which the district court’s rulings are based are

required when denying section 2255 motions). COA is therefore

GRANTED, the judgment is vacated, and the case is remanded to the

district court for the purpose of making the necessary findings on

the controlling issue. If the district court finds that counsel

agreed, after sentencing, to file a direct appeal, it has authority

to grant 28 U.S.C. § 2255 relief if such relief is appropriate. If

the district court finds otherwise, the case should be returned to

this court for full briefing.

COA is DENIED on the issues whether Norris’s term of

supervised release exceeded the statutory maximum and whether his

sentence was excessive pursuant to Apprendi v. New Jersey, 530 U.S. O R D E R No. 01-50779 - 3 -

466 (2000). Norris’s motion to substitute counsel is also DENIED.

COA GRANTED IN PART, DENIED IN PART; SUBSTITUTION OF

COUNSEL DENIED; JUDGMENT VACATED AND REMANDED.