United States v. Norris Fisher ( 2018 )

Case: 17-10699 Document: 00514511433 Page: 1 Date Filed: 06/13/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-10699
Fifth Circuit
FILED
Summary Calendar June 13, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
NORRIS LYNN FISHER,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:10-CR-74-1
Before SMITH, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM: *
Norris Lynn Fisher, federal prisoner # 41251-177, filed in the district
court a motion for relief from judgment under Federal Rule of Civil Procedure
60(b)(6) in which he raised challenges to his convictions and sentences for
conspiring to commit mail fraud and three counts of committing mail fraud.
He also filed a motion for leave to amend his Rule 60(b)(6) motion and file a
memorandum of law that exceeded 30 pages, a motion for leave to proceed in
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 17-10699
forma pauperis (IFP) in relation to his Rule 60(b)(6) motion, a motion to set
aside almost three million dollars for his representation and appoint counsel
in his criminal case to raise issues of racial bias and discrimination, and a
motion to transfer his criminal proceedings to the Southern District of New
York. Fisher now moves this court for leave to proceed IFP on appeal from the
district court’s order denying his motions. 1 By seeking leave to proceed IFP in
this court, Fisher is challenging the district court’s denial of leave to proceed
IFP and certification that his appeal would not be taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
A Rule 60(b) motion may not be used to collaterally attack a criminal
judgment. See United States v. Fuller, 459 F. App’x 346, 346 (5th Cir. 2012).
Fisher’s motion was a meaningless, unauthorized motion that lacked any
jurisdictional basis. See United States v. Early, 27 F.3d 140, 142 (5th Cir.
1994). Because the district court lacked jurisdiction to consider Fisher’s Rule
60(b) motion, it also lacked jurisdiction to consider motions he filed in relation
to that motion. See United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000).
Fisher’s motion to set aside and for the appointment of counsel and Fisher’s
motion to transfer his case to the Southern District of New York contained
challenges to Fisher’s conviction and sentence and ultimately were filed in aid
of seeking relief in the nature of a § 2255 motion. Because Fisher had not
obtained authorization from this court to file a successive § 2255 motion, the
district court lacked jurisdiction to consider the motions. See § 2255(h);
1 In the same order that Fisher challenges on appeal, the district court denied Fisher’s
motion for authorization to file a successive 28 U.S.C. § 2255 motion and motion for leave to
proceed IFP in relation to that motion. However, Fisher has not contested those decisions.
Although this court liberally construes pro se briefs, see Haines v. Kerner, 404 U.S. 519, 520
(1972), it requires arguments to be briefed in order to be preserved. Yohey v. Collins, 985
F.2d 222, 225 (1993). By failing to identify error in the district court’s basis for dismissing
those motions, Fisher has abandoned any challenge he might have raised. See Brinkmann
v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
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28 U.S.C. § 2244(b)(3)(A); Key, 205 F.3d at 774. Fisher has appealed from the
denial of meaningless, unauthorized motions. See Early, 27 F.3d at 142. He
has not shown that he will raise a legal point on appeal that is arguable on its
merits. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly,
Fisher’s motion for leave to proceed IFP is denied. Fisher’s appeal is dismissed
as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2. Fisher’s
motions to file a supplemental brief, to supplement the record on appeal, and
for the appointment of counsel to aid him on appeal are denied.
With his appeal, Fisher has filed a motion in the nature of a writ of
mandamus asking this court to order 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 for the Fifth
Circuit, and United States District Judge Barbara Lynn to release information
he requested under the Freedom of Information Act, and to order the
Department of Justice and the Federal Bureau of Investigation to conduct an
investigation. Fisher’s motion is denied as his claims do not warrant
mandamus relief. See In re Willy, 831 F.2d 545, 549 (5th Cir. 1987).
Fisher also has moved for this court to vacate his sentence and order his
release from prison. He appears to be seeking 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. § 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
for this court to vacate his sentence and order his release from prison is denied.
Fisher is warned that the continued filing of frivolous, repetitive, or
otherwise abusive attempts to challenge his convictions and sentences in this
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No. 17-10699
court or any court subject to this court’s jurisdiction will invite the imposition
of sanctions, including dismissal, monetary sanctions, and possibly denial of
access to the judicial system.
MOTIONS DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION
WARNING ISSUED.
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