United States District Court, E.D. Michigan, Southern Division
PHILIP T. NORRIS, Petitioner,
LLOYD RAPELJE, Respondent.
OPINION AND ORDER DISMISSING THE HABEAS CORPUS
PETITION AND DENYING CERTIFICATE OF APPEALABILITY
H. CLELAND UNITED STATES DISTRICT JUDGE
Philip T. Norris (Norris) has filed a habeas corpus petition
under 12 U.S.C. § 2254, challenging his convictions for
assault with intent to commit murder, Mich. Comp. Laws §
750.83, felon in possession of a firearm, Mich. Comp. Laws
§ 750.224f, and possession of a firearm during the
commission of a felony, Mich. Comp. Laws § 750.227b.
Norris alleges as grounds for relief that his trial attorney
was ineffective, that the trial judge's decision to bar
the testimony of two defense witnesses deprived him of a fair
trial, and that the prosecutor committed misconduct.
Respondent Lloyd Rapelje (Respondent) argues in an answer to
the habeas petition that Norris's claims are barred by
the statute of limitations, that some of Norris's claims
are also procedurally defaulted, and that the state
courts' adjudication of the claims was objectively
reasonable. The court agrees that Norris's claims are
the habeas petition will be dismissed on that basis.
was charged in Wayne County, Michigan with five crimes:
assault with intent to rob while armed, assault with intent
to commit murder, attempted carjacking, felon in possession
of a firearm, and felony firearm. The charges arose from the
shooting of Dwayne Goings in Detroit on April 18, 2007.
Norris was tried before a jury in Wayne County Circuit Court
Goings testified that he was waiting in his car outside a
party [store] when [Norris] and another man approached him
with a gun. Goings tried to drive off, but several gunshots
were fired and Goings received two bullet wounds. Goings
identified [Norris] as the shooter. Another witness, Ronald
Johnson, testified that the had known [Norris] for
approximately two years. After hearing gunshots, he looked
out the side door of his house and saw [Norris] running down
the street with a gun.
People v. Norris, No. 283289, 2009 WL 1362340, at *1
(Mich. Ct. App. May 14, 2009).
trial court directed a verdict of acquittal on the
assault-with-intent-to-rob charge, and on November 1, 2007,
the jury acquitted Norris of the attempted carjacking charge.
The jury nevertheless found Norris guilty of assault with
intent to commit murder, felon in possession of a firearm,
and felony firearm. On December 14, 2007, the trial court
sentenced Norris to two years in prison for the felony
firearm conviction, followed by concurrent terms of eleven to
eighteen years in prison for the
assault-with-intent-to-murder conviction and two to five
years in prison for the felon-in-possession conviction.
appeal as of right, Norris argued through counsel that his
trial attorney deprived him of effective assistance by (1)
failing to sequester two of his alibi witnesses during the
preliminary examination and failing to remedy the issue
through a motion, (2) failing to investigate all possible
defenses and issues regarding the identification of Norris,
and (3) depriving him of his constitutional right to testify.
In a pro se supplemental brief, Norris claimed that
the police failed to preserve exculpatory evidence and that
there was insufficient evidence to convict him of assault
with intent to commit murder. The Michigan Court of Appeals
affirmed Norris's convictions, see id., and on
October 26, 2009, the Michigan Supreme Court denied leave to
appeal because it was not persuaded to review the issues.
See People v. Norris, No. 139154, 773 N.W.2d 681
(Mich. 2009) (table).
August 5, 2010, Norris filed a motion for relief from
judgment through new counsel. He argued that (1) his trial
attorney was ineffective, (2) the trial judge's
instructions and decision to bar the testimony of two of
Norris's most important witnesses denied him a fair
trial, (3) the prosecutor deprived him of a fair trial by
allowing the officer in charge to lie and by not asking
questions in good faith, and (4) appellate counsel was
ineffective for failing to raise these issues on appeal.
September 29, 2011, the trial court denied Norris's
motion under Michigan Court Rule 6.508(D). The court stated
that Norris previously raised his claims on appeal or could
have raised the claims on appeal and failed to establish
“good cause” for his omission and “actual
prejudice.” See People v. Norris, Op. Denying
Pet'r's Mot. for Relief from J., No. 047-008723-01-FC
(Wayne Cty. Cir. Ct. Sept. 29, 2011). The Michigan Court of
Appeals denied leave to appeal the trial court's decision
for failure to establish entitlement to relief under Rule
6.508(D). See People v. Norris, No. 307276 (Mich.
Ct. App. May 21, 2012). On November 20, 2012, the Michigan
Supreme Court denied leave to appeal for the same reason.
See People v. Norris, No. 145393, 822 N.W.2d 233
(Mich. 2012) (table). Finally, on November 13, 2013,
Petitioner filed his habeas corpus petition through counsel.
Clearly Established Federal Law
asserts that Norris failed to comply with the statute of
limitations found in the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). AEDPA governs this case because
Norris filed his habeas petition after AEDPA was enacted.
Lindh v. Murphy, 521 U.S. 320, 336 (1997);
Barker v. Yukins, 199 F.3d 867, 871 (6th Cir. 1999).
established a one-year period of limitations for state
prisoners to file a federal habeas corpus petition. Wall
v. Kholi, 562 U.S. 545, 550 (2011) (citing 28 U.S.C.
§ 2244(d)(1)); Holbrook v. Curtin, No. 14-1247,
___ F.3d ___, 2016 WL 4271875, at *2 (6th Cir. Aug. 15, 2016)