[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 15

- 10390

________________________ D.C. Docket No s . 1:12

- cv - 03448

- RLH

- AJB , 1:05

- cr - 00479

- RLH

- AJB

- 1

HARRISON NORRIS, JR., Petitioner

- Appellant,

versus UNITED STATES OF AMERICA, Respondent

- Appellee

.

________________________ Appeal from the United States District Court f

or the Northern District of Georgia

_______________________ ( April 25, 2016 ) Before WILLIAM PRYOR, ANDERSON, and PARKER, * Circuit Judges

. WILLIAM PRYOR, Circuit Judge :

* Honorable Barrington D. Parker, Jr. , United States Circuit Judge for the Second Circuit , sitting by designation. Case: 15-10390 Date Filed: 04/25/2016 Page: 1 of 102 This appeal requires us to decide whether the district court erred by denying an evidentiary hearing for Harrison Norris’s motion to vacate , 28 U.S.C. § 2255, which alleged that his conviction violated the Due Process Clause because his trial judge was bia sed against him and mentally incompetent. Norris, a black man, was convicted of forcing women , many of whom were white, into prostitution. Judge Jack Camp presided over Norris’s trial and sentenced him to life in prison

. We vacated t h at sentence as a n impe rmissible general sentence . O n remand, a different judge sentenced Norris to 35 years of imprisonment. Three years after Norris’s trial, Judge Camp was arrested for illegal possession of drugs and a firearm

. The United States disclosed that Camp had bipola r disorder and had suffered a brain injury from a bicycling accident. The investigation also disclosed allegations of racial bias. One witness alleged that Camp wanted to give all black men who pimped white women the maximum penalty and that Camp specifica lly disliked Norris. Because Norris sufficiently alleged that Judge Camp was actually biased against him, we reverse and remand for an evidentiary hearing.
I. BACKGROUND Harrison Norris Jr

. was indicted on 28 counts based on his forced prostitution of sev eral women

. Norris proceeded pro se , and a jury convicted him of 24 counts. Norris’s offense level was 48, which carrie d a recommended sentence of life imprisonment for any criminal

- history category. Judge Camp

Case: 15-10390 Date Filed: 04/25/2016 Page: 2 of 103 sentenced Norris to a general sentence of life. On appeal, we affirmed the conviction s but vacated the sentence because it was a general sentence and some of the convictions carried maximum penalties. See United States v. Norris , 358 F. App’x 60 (11th Cir. 2009). The resentencing was assigned to J udge Forrester after Judge Camp was arrested. Judge Forrester sentenced Norris to 35 years of imprisonment , and we affirmed that sentence on appeal. See United States v.
Norris , 453 F. App’x 861 (11t h Cir. 2011).
T hree years after Norris’s trial , Camp plea ded guilty to possessing controlled

s ubstances, 21 U.S.C. § 844(a), aiding and abetting the unlawful possession of controlled substances, id. ; 18 U.S.C. § 2 , and conversion of government property , 18 U.S.C. § 641

. He file d a sentencing memorandum that detailed his history with bipolar disorder and an injury to his left temporal lobe from a bicycling accident in
2000

. The United States investigated Camp’s misconduct and disclosed its findings in a letter from Sally Quillian Yates, then the United States Attorney for the Northern District of Georgia , to the Federal Defender Program. The Yates letter concluded that Camp used illegal drugs beginning in May of 2010. Camp denied ever using drugs while conducting court business , an d the government found no evidence to the contrary. The Yates letter also recounted statements of witnesses alleging that Camp harbored racial bias. The letter described the statements of o ne

Case: 15-10390 Date Filed: 04/25/2016 Page: 3 of 104 witness, S.R. , who stated that “Camp told her that when African

- American men appeared before him, he had a difficult time adjudicating their cases and specifically determining their sentences because he could not differentiate them from” S.R.’s black boyfriend , who Camp thought was taking advantage of her. S.R. also sa id that a particular offender , allegedly Norris, reminded Camp of S.R.’s boyfriend. Another witness heard Camp use a racial epithet to refer to S.R.’s boyfriend, but a different witness who overheard the conversation did not. The letter stated that Camp de nied making any of these statements and denied “ever taking any judicial action based on racial bias. ” The United States also disclosed a recorded phone call between S.R. and Camp in which they discuss ed a specific defendant, believed to be Norris

. S.R.

as ked Camp if he still believed that “guys like that you couldn’t he lp but want to give ’ em life.” Camp responded, “ W ell, maybe I should. I’m much more sensitive to that after talking with you.” S.R. said , “I was just trying to talk you down out of the whole, you know, the racism thing, because at one point in time, you were like, I ju st can’t help, I want to give ’ em all life, and I was like, o h G od , I hope he’s not doing that. And I guess I tried to talk you, you know, a little bit out of that, because I know not everybody’s the same , but I felt like I had you feeling like that at one point in time. ” Camp responded, “Yea h , I do think you had done like that.” On the call, S.R. asked Camp specifically about Norris, and asked, “ W hat is your personal

Case: 15-10390 Date Filed: 04/25/2016 Page: 4 of 105 opinio n when you see a black guy like that, I’m sure they were white girls, what do you think?” Camp responded, “Oh, yeah, mostly were white girls. I think almost all of them were white girls .” She further asked Camp whether black men pimping white women “just b urns you up, you know, and you just couldn’t help but to want to give them [life].” Camp responded, “It does burn me up, but isn’t locking him up until, maybe, he’s 68 enough?” Camp concluded by explaining that “there are al ways two sides” to these cases. Norris filed a motion to vacate , 28 U.S.C. § 2255, on the ground s that Camp’s racial bias and mental incompetence violated his rights under the Due Process Clause of the Fifth Amendment . Norris r equested an evidentiary hearing

. The district court explained that it could not foreclose the probability of bias, but it determined that “bias of the kind alleged here is trial error, not a structural defect.” The district court reviewed the trial transcript and determined that Judge Camp was fair when dealing with Norris. The district court denied relief without an evidentiary hearing, but granted a certificate of appealability on the issue “whether relief under 28 U.S.C. § 2255 was properly denied without an evidentiary hearing on the claim that the defendant was denied due process because the trial judge was biased or was impaired by his neurological condition and mental healt h.”

Case: 15-10390 Date Filed: 04/25/2016 Page: 5 of 106 II. STANDARD OF REVIEW

“ We review the denial of an evidentiary hearing for abuse of discretion. ‘ A district court abuses its discretion if it applies an incorrect legal standard, applies the law in an unreasonable or incorrect manner, follows improper procedures in making a determination, or makes findings of fact that are clearly erroneous. ’ ” Diveroli v. United States , 803 F.3d 1258, 1262 (11th Cir. 2015) (citation omitted) (quoting Winthrop

- Redin v. United States , 767 F.3d 1210, 1215 (11th Cir. 2014))

. “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, ” the court must grant an evidentiary hearing. 28 U.S.C. § 2255(b).
III. DISCUSSION Norris argues that his trial violated his right to due process because Judge Camp was biased against him and mentally incompetent

. We conclude that the district court erred by denying Norris’s claim that Camp was biased against him without an evidentiary hearing. But the district court correctly denied Norris’s claim that Camp was incompetent

. A. Bias Norris alleges that Judge Camp was biased against him in violation of the Due Process Clause of the Fifth Amendment. “[T]he Due Process Clause clearly requires a ‘fair trial in a fair tribunal,’ before a judg e with no actual bias against the

Case: 15-10390 Date Filed: 04/25/2016 Page: 6 of 107 defendant or interest in the outcome of his particular case.” Bracy v. Gramley , 520 U.S. 899, 904

– 05 (1997) (citation omitted) (quoting Withrow v. Larkin , 421 U.S. 35, 46 (1975)); accord In re Murchison , 349 U.S. 133, 136 (1955) (“Fairness of course requires an absence of actual bias in the trial of cases.”). Even in the absence of actual bias, a judge’s interest or prejudice may “pose[] such a risk of actual bias or prejudgment that the practice must be forbidden if the gu arantee of due process is to be adequately implemented.” Caperton v. A.T. Massey Coal Co. , 556 U.S. 868, 884 (2009) (quoting Withrow , 421 U.S. at 47). But “ [t] he Due Process Clause demarks only the outer boundaries of judicial disqualifications. ” Id.
at 88 9 (quoting Aetna Life Ins. Co. v. Lavoie , 475 U.S. 813, 828 (1986) ). The federal recusal statute , by contrast, sets a higher bar. It requires a judge to disqualify himself “[w]here he has a personal bias or prejudice concerning a party.” 28 U.S.C. § 455 (b )(1)

. Norris raises only a constitutional argument , so w e do not address the recusal statute

. Norris sufficiently alleged that Camp was actually biased against him. Norris proffered evidence that Camp “had a difficult time adjudicating [African

- American

m en’s] cases ” and specifically disliked Norris based on the fact that Norris was a black man who pimped white women. Norris alleged that Camp wanted to give all black offenders who pimped white women the maximum possible penalty , a nd Camp gave Norris the ma ximum penalty. Norris’s allegations imply that Camp’s

Case: 15-10390 Date Filed: 04/25/2016 Page: 7 of 108 bias against Norris might have compromised his impartiality

. On this record, we cannot conclusively say whether Camp was actually biased, and Camp denies that he was, but the record does not “conclusive ly show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). Contrary to the ruling of the district court, structural error occurs when a judge with actual bias against a defendant presides at his trial

. See Arizona v. Fulminante , 499 U.S. 27 9, 309

– 10 (1991) ; see also Tumey v. Ohio , 273 U.S. 510, 535 (1927) (“ N o matter what the evidence was against [the defendant], he had the right to have an impartial judge

. ”). The government concedes that denial of an impartial judge is structural error that demands reversal. “ The entire conduct of the trial from beginning to end is obviously affected

. . . by the presence on the bench of a judge who is not impartial. ” Fulminant e , 499 U.S. at 309

– 10 ; accord United States v. Mills , 138 F.3d 928, 938 (11th Cir. 1998) (“[T]here are errors that infect the whole proceeding, such as a biased judge or an absence of counsel.”). And w e cannot review a trial transcript to determine whether the presiding judge , despite his actual bias, was fair : “The record does not reflect the tone of voice of the judge, his facial expressions, or his unspoken attitudes and mannerisms, all of which, as well as his statements and rulings of record, might hav e adversely influenced the jury and affected its verdict.” United States v. Brown , 539 F.2d 467, 469 (5th Cir. 1976). Case: 15-10390 Date Filed: 04/25/2016 Page: 8 of 109 We acknowledge that t he Due Process Clause incorporates the rule at common law that mandated recusal only when the judge had “a direct, pe rsonal, substantial pecuniary interest in reaching a conclusion against him in his case.” Tumey , 273 U.S. at 523; see also John P. Frank, Disqualification of Judges , 56 Yale L.J. 605, 609

– 12 (1947) (collecting historical sources). “[M]atters of kinship,
pe rsonal bias, state policy, [and] remoteness of interest would seem generally to be matters merely of legislative discretion, ” Tumey , 273 U.S. at 523 , and “[p]ersonal bias or prejudice ‘alone would not be sufficient basis for imposing a constitutional requirement under the Due Process Clause , ’” Caperton , 556 U.S. at 877 (quoting
Lavoie , 475 U.S. at 820). B ut Norris alleges something more than the personal biases or pre judices that are governed by the recusal statute ; h e identifies specific statements that imply that Camp could not set aside his prejudice against him

. On remand, the district court must allow Norris an evidentiary hearing to prove that Camp was actually b iased against him. The district court must determine whether there is an intolerable probability that Camp could not “ hold the balance nice, clear and true.” Id

. at 879 (quoting Lavoie , 475 U.S. at 825)

. We express no opinion about whether Norris wil l be a ble to prove that Camp was actually biased against him

. Case: 15-10390 Date Filed: 04/25/2016 Page: 9 of 1010 B. Incompetence Norris also argues that Judge Camp was mentally incompetent in violation of Norris’s right to due process

. The Due Process Clause requires that the trial judge is “mentally competent to afford a hearing.” Jordan v. Massachusetts , 225 U.S. 167, 176 (1912). Norris proffered evidence in the form of a statement that Camp made before his sentencing that he suffered from bipolar and mood disorders since 1999 and suffered frontal lobe damage from a bi cycle crash in 2000 resulting in mood issues and problems in impulse control . Norris alleges that this medical history is why Camp gave him an “illegal general sentence .

. . despite his decades of judicial experience.” The di strict court correctly denied this claim without an evidentiary hearing. A district court need not hold an evidentiary hearing if the allegations are based on unsupported generalizations. Diveroli , 803 F.3d at 1263. Nothing in the transcript suggests that Camp was incompetent, a nd many competent judges make minor errors such as imposing an improper general sentence

. T he mere fact that Camp suffered from mental illness is insufficient to warrant an evidentiary hearing. IV. CONCLUSION We AFFIRM in part , REVERSE in part, and REMAND for an evidentiary hearing on the claim that Norris was denied due process because Judge Camp was actually biased against him

.

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