Norman v. Korneman
| Decision Date | 27 April 2021 |
| Docket Number | Case No. 4:19-CV-02299-JAR |
| Parties | TERRANCE T. NORMAN, Petitioner, v. SHERIE L. KORNEMAN, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on Petitioner Terrance T. Norman's Amended Petition to Vacate, Set Aide, or Correct Sentence Pursuant to 28 U.S.C. § 2254. (Doc. 11). Respondent has responded (Doc. 12), and the time for Petitioner to reply has expired. For the reasons discussed below, the Amended Petition will be denied.
On January 25, 2012, Petitioner entered the backseat of Detective Juan Wilson's vehicle. Detective Wilson was an undercover police officer, and an informant had brokered a transaction where Petitioner would sell Detective Wilson a .40 caliber Smith and Wesson handgun for $450. After receiving the $450, Petitioner allegedly pointed a loaded gun at Detective Wilson, instructed him not to move, exited the vehicle, and sped away in his own car. (Doc. 12-5 at 2).
In December 2013, a jury in Missouri state court convicted Petitioner of first degree robbery while acquitting him of armed criminal action. (Doc. 12 at 1; Doc. 12-5 at 5). Petitioner was subsequently sentenced to 25 years in prison. (Id.). Petitioner filed a direct appeal which was denied by the Missouri Court of Appeals on May 20, 2014. (Doc. 12-5). Petitioner proceeded to file a motion for post-conviction relief under Missouri Supreme Court Rule 29.15, which was initially remanded by the Missouri Court of Appeals so that the lower court could conduct an abandonment inquiry regarding the motion's timeliness. (Doc. 12-10). On May 1, 2018, the Missouri Court of Appeals affirmed the denial of post-conviction relief. (Doc. 12-13). The Missouri Court of Appeals issued its mandate on May 25, 2018, completing the post-conviction relief appeal process. (Doc. 11 at 6; Doc. 12 at 9).
Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 on August 5, 2019. (Doc. 1). On May 27, 2020, this Court granted Petitioner leave to file an Amended Petition. (Docs. 10, 11). This Court has liberally construed Petitioner's pro se Amended Petition. (Doc. 12). See Estelle v. Gamble, 429 U.S. 97, 106 (1976). The Amended Petition states three grounds for relief:
Ground One: Ineffective Assistance - Failure to Challenge Sufficiency of Evidence
A district court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The court may not grant a writ of habeas corpus as to any claim that was adjudicated on the merits in state court proceedings unless such adjudication "(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." 28 U.S.C. § 2254(d).
"A state court's decision is contrary to . . . clearly established law if it applies a rule that contradicts the governing law set forth in [Supreme Court] cases or if it confronts a set of facts that are materially indistinguishable from a [Supreme Court] decision . . . and nevertheless arrives at a [different] result." Cagle v. Norris, 474 F.3d 1090, 1095 (8th Cir. 2007) (alteration in original) (quoting Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003)). A state court "unreasonably applies" federal law when it "identifies the correct governing rule from Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or "unreasonably extends a legal principle from [the Supreme Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. 362, 407 (2000). Finally, a state court decision is based on an unreasonable determination of the facts "only if it is shown that the state court's presumptively correct factual findings do not enjoy support in the record." Jones v. Luebbers, 359 F.3d 1005, 1111 (8th Cir. 2004) (citations omitted). The petitioner must rebut this presumption by clear and convincing evidence. Rice v. Collins, 546 U.S. 333, 338-39 (2006).
Petitions under § 2254 are subject to a one-year statute of limitations pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). 28 U.S.C. § 2244(d). The statute provides, as it relates to this case, that the one-year period begins to run "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The statute of limitations accordingly does not run until the mandate has issued and the time for seeking further review has expired. Gonzales v. Thaler, 565 U.S. 134, 150 (2012). This time period is tolled, moreover, during thependency of any state post-conviction application or other collateral review. 28 U.S.C. § 2244(d)(2).
Petitioner was sentenced on February 11, 2013 and timely appealed. (Doc. 1 at 1; Doc. 12 at 8). The Missouri Court of Appeals affirmed the conviction, with slight modification, on May 20, 2014, with the mandate issuing on June 13, 2014. (Doc. 12-8 at 5). Because Petitioner did not appeal to the Missouri Supreme Court, his one-year time period began running on approximately June 29, 2014. See Mo. Sup. Ct. R. 83.02 (). Petitioner filed his post-conviction motion pursuant to Mo. Sup. Ct. R. 29.15 on September 8, 2014, 72 days later, tolling AEDPA's one-year limit. (Doc. 11 at 6; Doc. 12 at 9).
The Missouri Court of Appeals affirmed the motion court's denial on May 1, 2018, and the mandate issued on May 25, 2018. (Doc. 11 at 6; Doc. 12 at 9; Doc. 12-13). Petitioner did not file his habeas petition in this Court until August 5, 2019. (Doc. 1). Adding the 72 days identified above, Petitioner sought review in this Court approximately 509 days after his review in state court was complete. Petitioner "acknowledges that his petition is untimely" but contends he is entitled to equitable tolling for two reasons. (Doc. 11 at 6).1 The Eighth Circuit has clearly held that the one-year statute of limitations under the AEDPA "is a true statute of limitations rather than a jurisdictional bar." Earl v. Fabian, 556 F.3d 717, 722 (8th Cir. 2009) (citation omitted); see also Day v. McDonough, 547 U.S. 198, 208 (2006). This means that equitable tolling is permissible, but should only occur "when there exist extraordinary circumstances beyond a prisoner's control that made filing a timely petition impossible." Mendoza v. Minnesota, 100 Fed. App'x 587, 588 (8th Cir. 2004) (per curiam) (citation omitted).
Petitioner argues that this Court should overlook the untimeliness of his petition because he is actually innocent. The Supreme Court has held that the miscarriage of justice exception for procedural defaults survived passage of the AEDPA. McQuiggin v. Perkins, 569 U.S. 383, 397 (2013). The Eighth Circuit, citing McQuiggin, has repeatedly described the actual innocence standard as "demanding." See, e.g., Williams v. Hobbs, 509 Fed. App'x 558 (8th Cir. 2013) (per curiam). In McQuiggin, the Supreme Court cautioned that "tenable actual-innocence gateway pleas are rare" and a petitioner does not meet this burden "unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." McQuiggin, 569 U.S. at 386 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).
Petitioner has not presented any new evidence demonstrating his innocence. Instead he claims that the jury rendered an inconsistent verdict by convicting him of first degree burglary while acquitting him of armed criminal action. (Doc. 11 at 8). First, as discussed further below, this Court disagrees with Petitioner's assertion that the jury's verdict is inconsistent. Second, Petitioner's claim is more akin to one of legal innocence than actual innocence, which is not sufficient to satisfy the demanding standard for equitable tolling. See Sawyer v. Whitley, 505 U.S. 333, 339 (1992) (); Narcisse v. Dahm, 9 F.3d 38, 40 (8th Cir. 1993) (). Because Petitioner has not presented an actual innocence argument based on new evidence, no equitable tolling of the AEDPA statute of limitations is warranted. See Moore v. Sachse, 421 F. Supp. 2d 1209, 1214 (E.D. Mo. 2006) (citing Pitts v. Norris, 85 F.3d 348, 350-51 (8th Cir. 1996)) ("Pursuing an argument of legal innocence with no new evidence establish factualinnocence is insufficient to invoke the actual innocence exception.").
Petitioner claims that equitable tolling is merited because he received delayed notice of the Missouri Court of Appeals' decision and lacked access to the law library due to a riot at his prison. The Missouri Court of Appeals issued its mandate on May 25, 2018, but Petitioner alleges that he did not receive a letter from his attorney notifying him of the decision until November 6, 2018. Petitioner further claims that he did not receive the proper forms to file a § 2254 petition until June 11, 2019. (Doc. 11 at 8-9). Under AEDPA, Petitioner had until March 2019...
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