[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 16

- 17741 Non

- Argument Calendar

________________________ D.C. Docket No. 1:12

- cv - 03448

- RLH ; 1:05

- cr - 00479

- RLH

- 1 HARRISON NORRIS, JR., Petitioner

- Appellant,

versus
UNITED STATES OF AMERICA, Respondent

- Appellee.

________________________ Appeal from the United States District Court for the Northern District of Georgia

________________________ (September 22, 2017) Before MARCUS , WILLIAM PRYOR and FAY , Circuit Judges. PER CURIAM: Harrison Norris , a federal pris oner , appeals, for the second time, the denial of his motion to vacate his sentence. 28 U.S.C. § 2255. In his motion, Norris

Case: 16-17741 Date Filed: 09/22/2017 Page: 1 of 112 a lleg ed that he was denied a fair trial by former District Judge Jack Camp who, Norris contends, was mentally incompetent and racially biased against him , in violation of the Due Process Clause of the Fifth Amendment. In Norris’s first appeal, w e affirmed the denial of hi s allegation that Camp was incompetent, but “[b]ecause Norris sufficiently alleged that J udge Camp was actuall y biased against him, we reverse [ d ] and remand [ ed ] for an evidentiary hearing ” on that issue. Norris v. United States , 820 F.3d 1261, 1263 (11th Cir. 2016) . On remand, the district court found “no credible evidence” that “Judge Camp was

. . . biased against African

- Americans in general or against Mr. Norris in particular , ” and it issued a certificate of appealability f o r the review of its factual finding

. W e affirm. I. BACKGROUND Norris based his postconviction motion on a recorded telephone conversation in which Camp ’s mistress , S.R. , suggested that race might influence the sentence he selected f o r Norris. Camp debat ed whether a sentence of life without parole “was too strong” and sought S.R.’s input because she had “been there and done that” by being coerced and intimidated by her boyfriend. S.R. “remember[ed] [Camp] telling [her] . . . that [he] couldn’t help but want to give

. . . guys like that [a sentence of] life,” and Camp re plied, “maybe I should , see. I’m

m uch more sensitive to that after talking with you . ” S.R. remarked, “I was just trying to talk you down out of the whole . . . racism thing because at one point in

Case: 16-17741 Date Filed: 09/22/2017 Page: 2 of 113 time . . . you were like, I just can’t help it, I want to give them all life.” Camp responded , “Yeah,” that he “did think [S.R.] was done like that” and had been concerned when she excused her boyfriend’s decision to “ drop [] [her] off at [ a ] black club and left,” which in Camp ’s opinion, “was [intended] to intimidate

. . . and , get [her] use [d] to that sort of thing . . . .” S.R. respond ed that she “was just being naïve . . . and that sounds like [Norris] . . . with those girls . . . .”
S.R. asked C amp for hi s “personal opinion when he s[aw] a black guy like that ” mistreat women who S.R. assumed “ were white

. ” Camp stat ed t hat “almost all of [the victims] were white girls

. ” S.R. asked what Camp thought “about that situation in general, like the black guys doing that s***,” and suggested that it must “be hard to . . . be fair when you know that this motherf **** * really deserves a lot of time

. ” Camp answer ed , you “think that it’s unforgiveable ,” yet “the problem . . . is [ most people question] why have [women] stuck with it why didn’t they just leave

. ” After S.R. remarke d, “[s]ometimes you can’t,” Camp stat ed , “You’ve made me much more sensitive to that , ” and then he reassured her that “being naïve, that’s one of your nicest qualities ” and urged her “to stop and think
more . . . .” S.R. questioned whether Camp no longer “fe[lt] that wa y . . . when you see a black person ,” and he reassured her , “No, I do, I do

. ” S.R. “guess[ed] the way you had talked about it before . . . it burn[ed] you up . . . and you just couldn’t help but

Case: 16-17741 Date Filed: 09/22/2017 Page: 3 of 114 want to give them, you know,” and Camp countered, “[i ]t does burn me up but . . . locking him up until he’s maybe sixty

- eight [is] enough.” Camp concluded the conversation by saying , “these . . . cases aren’t ever black and white because there’s always two sides.” At the evidentiary hearing, S.R. testified t hat she told Camp that her black boyfriend, R.B., had beaten her. Camp was jealous of R.B. yet pitied him because of his struggles with drug addiction and his experiences in prison. S.R. stated that Camp never used racial ly derogatory terms around her and that , during their telephone conversation, he agreed with her comments about black men in relation
to her unhealthy relationship with R.B. S.R. s t a ted that Camp’s remarks about what sentence to impose derived not from being “a racist person, but [to] the f act that [Norris’s case] just reminded [ Camp ] of [the] personal situation that he was going through” with her. S.R. stated that Camp never said he would judge a black man more harshly. Norris called two women , K atrina H ardy and D iane K irk , to testify about telephone calls in which Camp a llegedly made racial slurs. H ardy testified that a

man c all ed her twice about S.R

. ’s fail ur e to pay rent and, d uring the first c all , he referred to Hardy as a “n*****” and said S.R. was not going to pay “a f***ing thing

. ” W hen t he man called back, he identified himself as a judge , threatened to

sue Hardy if she tried to collect rent from S.R. , and sa i d he would “ lock [H ardy ’s]

Case: 16-17741 Date Filed: 09/22/2017 Page: 4 of 115 n***** ass up.” K irk testified tha t she overheard the first telephone call in which the caller g o t angry and mad e racial slurs, but K irk sa i d she was undergoing treatment for memory loss and could not recall what racist terms the caller used. Todd Goodson, an agent of the Federal Bureau of Investigation, testified that
K irk and H ardy gave inconsistent accounts of Camp’s first telephone call. On two occasions, K irk told Goodson that the caller identified himself as S.R.’s family attorney and tha t t he caller never identified himself as a judge, never cursed, and

never made racial slurs. H ardy told Goodson that the caller identified himself as a judge and referred to R.B. as a black “n*****,” but the caller did not use any other racial epithet s. Norris testifi ed that Camp had discriminated against him . Norris complained that Camp deni ed his pro se m otions for discovery , to sever his trial from that of his codefendants, and to visit and photograph his property that he used ostensibly to train femal e wrestl ers . Norris accused Camp of “call[ing] quite a few of” Norris’s codefendants to “offer[] them plea deals” and of being “prejudiced” not “because [Norris] was a black man, but because [he] was a smart black man, an intelligent black man.” Norris asserted that “ Judge Camp was biased” because he imposed lesser sentences on “[w]hite women in this case, the co

- con spirators

. ” Norris also asserted that “Judge Camp [ had been ] jealous of [Norris’s] lifestyle” of “living . . . with six women in two houses side by side” and that Camp had

Case: 16-17741 Date Filed: 09/22/2017 Page: 5 of 116 infringed on his family’s “freedom of speech” by making them remove “ t

- shirt [ s ] [the y wore to Norris’s trial] . . . that said peonage is not a crime in the state of Georgia.” Camp testified about his relationship with S.R. and explained that the ir telephone conversation pertained to men abusing women

. Camp also explained that
h is statemen t s about things burning him up and being unforgiveable referred to

men exploiting women and to Norris’s intimidation, beating, and forced prostitution of his victims, which Camp regarded as reprehensible by “any man” regardless o f his race. Camp stated that he never disparaged or was prejudice d against black men , nor did he use racial epithets around S.R. H e agreed with and ignored some of S.R.’s racially

- charged statements to appease her , even though s he broached the topic “out of the blue.” He told S.R . that she had made him more sensitive because she had felt trapped in her relationship with R.B. Camp a dmitted that he c all ed H ardy to explain that S.R. was financially insolvent

. Camp sai d Norris did a “good job” as a pro se litigant

. Camp recalled being hesitant about sentenc ing Norris to life imprisonment because his codefendants received lesser sentences , yet the government had provided persuasive reasons to give Norris a long sentence. Camp disavowed that race affected his rulings at tri al or that he was r acial ly bias ed

.

Case: 16-17741 Date Filed: 09/22/2017 Page: 6 of 117 Camp’s former colleagues testified that he was u nbiased. Jan K ay, a federal probation officer who worked with Camp for 20 years, testified that she never witnessed him take race into account in sentencing or utter a racial slur. Robert Fowler and Stewart Alford, Camp’s former law clerk s , and Kay testified that Camp

never voice d any racial animosity against Norris . Alford testified that he “felt strongly that [a] life sentence was appropriate for Mr. Norris” and “ha d s everal conversations” with Camp, who “spent a lot of time thinking about” and “struggled with” imposing such a long sentence. Camp’s f riends also testified that he was not biased

. Charles Atkinson , an African

- American, testified that he never heard any racial remarks from Camp , who was Atkinson’s long

- time neighbor, provided pro bono services t o Atkinson’s church, and participated with Atkinson in a mixed

- race group of runn ers . Dana Graham, who was a n African

- American minister , testified about Camp help i ng him find a job after retiring from the Marines and about counsel ing Camp after his
arrest. The district court found that Camp had not been racially biased and had “viewed Mr. Norris entirely based on the merits

. . . [and] the evidence of what Mr. Norris did.” The district court found that Camp ’s conversation with S.R. contained “nothing about race” ; focused on his disapproval of domestic abuse; and reveale d that he was con templating giving Norris a lesser sentence than recommended by

Case: 16-17741 Date Filed: 09/22/2017 Page: 7 of 118 the government

. The district court credited S.R.’s testimony that Camp had never disparaged anyone because of their race and credited the testimonies of Camp , his colleagues , and his friends . The district court discredited Hardy’s testimony “based on her demeanor , ” the improbability that a lawyer attempt ing to settle a rental dispute would open negotiations by curs ing the landlord , and the inconsistencies between Hardy’s testimony, he r statements t o Agent Goodson, and Kirk’s testimony. The district court also discre dited Kirk’s testimony because it was inconsistent with her statement to Agent Goodson, she ha d a n “impaired memory,” and she could not recall racial epithets that, if made, would have left a lasting impression. II. STANDARD OF REVIEW “In a Section 2255 proceeding, we review

. . . factual findings under a clear error standard.” Jeffries v. United States , 748 F.3d 1310, 1313 (11th Cir. 2014) (quoting Lynn v. United States , 365 F.3d 1225, 1232 (11th Cir. 2004) ). That standard requires us to affirm “ findings of fact unless the record lacks substantial evidence to support them. ” San Martin v. McNeil , 633 F.3d 1257, 1265 (11th Cir. 2011)

. III. DISCUSSION Under “t he Due Process Clause [, Norris was entitled to] a fair trial in a fair tribunal, before a judge with no actual bias against [him] or interest in the outcome

Case: 16-17741 Date Filed: 09/22/2017 Page: 8 of 119 of his particular case. ” Bracy v. Gramley , 520 U.S. 899, 904

– 05 (1997). For Norris
to obtain postconviction relief , he had to prove that , “ under a realistic appraisal of psychological tendencies and human weakness, the judge [] pose[d]

. . . a risk of actual bias or prejudgment [ such that it create d an i ntolerable threat to] the guarantee of due process.” Caperton v. A.T. Massey Coal Co. , 556 U.S. 868, 883

– 84 (2009)

. Th e district court had to determine “ whether sitting on the case

. . . would offer a possible temptation to the average judge to lead him not to hold the balance nice, clear and true. ” Id. at 879 (internal quotation marks and citation omitted). We give substantial deference to the credibility determinations of the district court because it personally observe d the witnesses and wa s in a better position than a reviewing court to assess the ir credibility

. Rivers v. United States , 777 F.3d 1306, 1316 (11th Cir. 2015) ; United States v. Ramirez

- Chilel , 289 F.3d 744, 749 (11th Cir. 2002)

. Its “c hoice of wh om to believe is conclusive on [this Court] unless the judge credit[ed] exceedingly improbable testimony.” Ramirez

- Chilel , 289 F.3d at 749 (quoting United States v. Cardona

- Rivera , 904 F.2d 1149, 1152 (7th Cir. 1990) )

. “ Consequently, we generally will not disturb a credibility finding unless it is so inconsistent or improbable on its face that no reasonable factfinder could accept it.” Jeffries , 748 F.3d at 1313 (internal quotation marks and citation omitted)

. Case: 16-17741 Date Filed: 09/22/2017 Page: 9 of 1110 T he distric t court did not clearly err by crediting S.R.’s and Camp’s testimony. S.R.’s testimony that Camp did not use racial epithets and was not prejudiced against black men was consistent with the contents of their telephone

c onversation in which Camp never uttered a racial slur , never mentioned race , and grappled with an appropriate sentence for Norris based on the facts of his case

. Although Camp did not deny or challenge S.R.’s comments about race, she and Camp testified that they were discussing me n who abused women and that he was placating S.R. to preserve their relationship. A nd S.R.’s and Camp’s testimony that he was not racially bias ed was consistent with the favorable portrayal o f him given by his friends and former colleagues. Nor ris does not dispute that Camp’s friends and colleagues gave credible accounts that he regarded black and white persons equally in society and in his courtroom. The district court also did not clearly err by discrediting Hardy’s and Kirk’s testimonies. Har dy’s testimony that Camp called her a “n*****” was inconsistent with her statement to Agent Goodson that Camp used that slur only in reference to S.R.’s boyfriend. Hardy also did not tell Goodson that Camp cursed at her. And Hardy’s testimony that Camp cur sed, identified himself as a judge, and made racial slurs during his first telephone call conflicted with the events that Kirk described to Goodson. Similarly, Kirk’s testimony that Camp used racial epithets was inconsistent with her statement to Goodson

. Her testimony also was dubious given

Case: 16-17741 Date Filed: 09/22/2017 Page: 10 of 1111 her inability to recall Camp’s s pecific slurs

. Furthermore, t he district court was entitled to discredit Kirk’s testimony based on her cognitive deficits. Norris does
not contest the finding that H ardy’s and Kay’s testimonies were unbelievable

. The district court did not clearly err in finding that C amp was not biased against Norris

. Norris failed to prove , as he was required to do, s ee Rivers , 777 F.3d at 1316 , there existed “ a serious risk of actual bias [on the part of Camp]

. . . based on objective and reasonable perceptions ” of his conduct and communications , s ee Caperton , 556 U.S. at 8 84 . The record supports the finding of the district court that “an average judge [in Camp ’s shoes would not be]

. . . tempt [ed] . . . not to hold the balance nice, clear and true. ” Id. at 879. IV. CONCLUSION
We AFFIRM the denial of Norris’s motion to vacate his sentence. Case: 16-17741 Date Filed: 09/22/2017 Page: 11 of 11