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Norris v. Rapelje

United States District Court, E.D. Michigan, Southern Division

October 31, 2016

PHILIP T. NORRIS, Petitioner,
v.
LLOYD RAPELJE, Respondent.

          OPINION AND ORDER DISMISSING THE HABEAS CORPUS PETITION AND DENYING CERTIFICATE OF APPEALABILITY

          ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

         Petitioner 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 time-barred.

         Accordingly, the habeas petition will be dismissed on that basis.

         I. BACKGROUND

         Norris 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 where:

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).

         The 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.

         In an 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).

         On August 5, 2010, Norris filed a motion for relief from judgment through new counsel.[1] 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.

         On 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.

         II. Analysis

         A. Clearly Established Federal Law

         Respondent 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).

         AEDPA 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) (citing ...


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