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Norman v. Bowersox

United States District Court, W.D. Missouri, Southern Division

January 12, 2015

GREGORY NORMAN, Petitioner,
v.
MICHAEL BOWERSOX, WARDEN, et al., Respondents.

ORDER DENYING A WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY

GREG KAYS, Chief District Judge.

A jury in Missouri state court convicted Petitioner Gregory Norman ("Norman") of first-degree murder for killing his brother. Norman, now incarcerated, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Norman challenges his conviction on twelve grounds. For the following reasons, the Court DENIES a writ of habeas corpus and DENIES a certificate of appealability.

Standard

A person in state custody may petition a federal district court for a writ of habeas corpus on the grounds that his continued detention violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2554(a). To be eligible for habeas relief, the petitioner must have exhausted his remedies in state court. Id. § 2254(b)(1)(A). Then, habeas relief is foreclosed unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Id. § 2254(d)(1), (2).

Background

Because Norman does not argue that the state court's findings of fact were unreasonably determined, the Court defers to and adopts those factual conclusions. See id. § 2254(d)(2). Those facts, as recited by the Missouri Court of Appeals, Southern District, are as follows:

Rick Norman and defendant were the oldest of five siblings. After their father died, defendant accused Rick of conspiring with their stepmother to steal the estate. Defendant eventually filed a will contest against his siblings and the stepmother. The siblings hired a lawyer, designated Rick as their contact person, and counterclaimed for a share of $103, 000 "trust money" in defendant's possession. Rick filed an affidavit supporting the siblings' motion, in effect, to "freeze" the $103, 000 while the case was pending. The motion was set for hearing December 19, 2001.
Defendant was present for depositions on December 17, two days before the scheduled hearing. The siblings' lawyer offered to cancel the hearing if defendant would deliver the money to his lawyer or to the siblings' lawyer. Defendant said he would decide by noon the next day (December 18). Defendant then asked two of his siblings to get the hearing and their counterclaim stopped. One of them described defendant as frantic and panicky. Defendant, it was later determined, had virtually depleted the $103, 000, perhaps to just $2, 059.
Late the following morning, the day before the scheduled hearing, Rick Norman was working at home. Mary, his wife, was at their nearby photography studio. She returned at noon to find the back door ajar, blood everywhere, and Rick's body down the hallway. He was shot in the chest, upper arm, lip, and head. Investigators eventually concluded that he was shot near the back door, but struggled to his feet and down the hall, leaning on the walls for support. After collapsing again in the foyer, he was fatally shot in the head. [Footnote: Alternatively, he was fatally shot, then collapsed.] Autopsy results and a shell casing under his body indicated Rick was killed by a.25 caliber shot from 18 inches or less, just above the right ear. Two men working nearby told police they heard what sounded like three small-caliber gunshots about 11:45 a.m. A tire-tread impression, not from Rick's or Mary's vehicle, was recovered near the rear driveway.
Police went to defendant's home that evening. No one answered when they knocked and identified themselves, although the front door was slightly open, the lights were on, and three vehicles were parked there. Officers who went to the back could see persons inside. The officers at the front kept knocking and identified themselves even more loudly. They also called the residence several times and heard the phone ringing inside. Still no one responded. The officers in back reported they could see defendant inside with guns. The officers pulled back until they could get a search warrant. The search warrant arrived about 12:30 a.m., and defendant came out about 25 minutes later. The police took his shoes and socks and searched the home, finding 11 long guns, a.45 caliber pistol, various kinds of ammunition, and a video monitor hooked up to several cameras around the house and wired with an alarm. No.25 caliber weapon was found, but there was.25 caliber ammunition; an empty box of.25 caliber shell casings; and reloading equipment with.25 and.45 caliber die sets. There was trial evidence that defendant had owned a small handgun in addition to the.45 caliber pistol.
A Cingular engineer, using phone records and cell-tower triangulation, placed defendant in the general vicinity near the time of the murder. Defendant told his sister he drove by Rick's home that day, but claimed he did not stop. Defendant's tire tread apparently was similar to the impression recovered near Rick's driveway.
A swab of the steering wheel of defendant's vehicle was presumptive for blood, but too minimal for DNA analysis. Defendant's shoes bore blood splatter patterns, insufficient for DNA profiling, but consistent with the wearer standing next to a person shot in the head with a small caliber weapon while lying on the ground.

State v. Norman, 243 S.W.3d 466, 468-69 (Mo.Ct.App. 2007) (" Norman II ").

Norman moved to suppress evidence seized in connection with the execution of the search warrant at his home. Although the circuit court granted the motion, the Missouri Court of Appeals reversed that decision. State v. Norman, 133 S.W.3d 151 (Mo.Ct.App. 2004).

The case proceeded to trial, where the jury found him guilty of first-degree murder and assessed punishment at life without parole. Norman II, 243 S.W.3d at 469. The Court of Appeals affirmed the conviction on direct appeal. Id. The Supreme Court of Missouri denied Norman's application for transfer. State v. Norman, No. SC89047, 2008 Mo. LEXIS 115 (Mo. Feb. 19, 2008).

Norman filed for post-conviction relief, which the Circuit Court denied and the Court of Appeals affirmed. (Doc. 9-25, Norman v. State of Missouri, No. SD31859 (Mo.Ct.App. Feb. 11, 2013) (per curiam unpublished)). He now files the instant petition for a writ of habeas corpus.

Discussion

I. Norman is not eligible for habeas relief.

Norman presents twelve grounds for habeas relief: (1) law enforcement had no probable cause to execute a search warrant on his home; (2) the evidence adduced at trial was insufficient to support a guilty verdict; (3) evidence that Norman kept firearms at his house should not have been admitted at trial; (4) evidence that officers saw Norman carrying firearms when they went to question him should not have been admitted at trial; (5) the prosecutor made an improper and prejudicial closing statement at trial; (6) the trial court should have changed venue because so many venirepersons had prior knowledge of the case; and (7-12) Norman's trial counsel was constitutionally ineffective for failing to present certain evidence and to object to certain evidence. Norman argues that the state court's adjudication of each of these issues "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).

For the reasons explained below, none of these grounds entitles Norman to a writ of habeas corpus.

A. The state court gave Norman a full and fair opportunity to litigate his Fourth Amendment claim.

The trial court granted Norman's motion to suppress on the basis that the affidavit used to support a search warrant of his home failed to establish probable cause for the search. The Missouri Court of Appeals reversed that order. In Ground One, Norman claims the Court of Appeals improperly "ignored the trial court's findings and deferred, instead, to the issuing" of the warrant (Doc. 1, at 22). Alternatively, he argues the Court of Appeals lacked jurisdiction to reverse the circuit court because interlocutory appeals related to suppressing evidence in a first-degree murder case must be filed in the Supreme Court of Missouri, not the Court of Appeals. See Mo. Rev. Stat. § 547.200.3.

To succeed on this ground, Norman must show that the Court of Appeals's adjudication was contrary to a "clearly established Federal law[] as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Norman argues that the "totality of circumstances" did not support the issuance of a search warrant. However, the Supreme Court case of Stone v. Powell, 428 U.S. 465 (1976), provides the relevant inquiry here: "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." 428 U.S. at 481-82.

Here, the state court gave Norman an opportunity to fully and fairly litigate his suppression claim. The issue was the sole focus of Norman's brief to the Court of Appeals on the State's interlocutory appeal, and the issue was the only issue addressed in the Court of Appeals's reasoned opinion. That court applied the relevant Fourth Amendment precedent. Although both the Circuit Court and the Court of Appeals called this a "very, very, very close" call, they gave Norman a full and fair chance to argue that call.

Norman argues that the Court of Appeals's determination is infirm because Mo. Rev. Stat. § 547.200.3 requires all interlocutory suppression appeals in first-degree murder cases like his to be filed exclusively in the Supreme Court of Missouri. Norman does not indicate how the Court of Appeals was somehow not equipped to fairly adjudicate this issue. Even if its review was procedurally improper in this instance, the Court of Appeals regularly entertains ...


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