Norris v. Schotten

• Decision Date: 26 May 1998
• Docket Number: No. 96-3553,96-3553
• Citation: 146 F.3d 314
• Parties: Robert Lee NORRIS, Petitioner-Appellant, v. James SCHOTTEN, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 314

146 F.3d 314

Robert Lee NORRIS, Petitioner-Appellant, v. James SCHOTTEN, Warden, Respondent-Appellee.

No. 96-3553.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 21, 1997.

Decided May 26, 1998.

Timothy A. Smith (argued and briefed), Cincinnati, OH, for Petitioner-Appellant.

Michael L. Collyer (argued and briefed), Office of the Attorney General of Ohio, Capital Crimes Section, Cleveland, OH, for Respondent-Appellee.

Before: MERRITT, MOORE, and BRIGHT, ^* Circuit Judges.

MOORE, J., delivered the opinion of the court, in which MERRITT, J., joined. BRIGHT, J. (p. 336), delivered a separate concurring opinion.

MOORE, Circuit Judge.

In September 1992, petitioner-appellant Robert Lee Norris was convicted in the state of Ohio of two counts of rape and one count of kidnapping. Norris now appeals the district court's denial of his petition for a writ of habeas corpus to overturn two of the three convictions on one count of rape and one count of kidnapping. ¹ For the reasons set forth below, we affirm the district court's judgment and deny appellant's request for habeas relief.

I. FACTUAL & PROCEDURAL BACKGROUND

For purposes of this appeal, we need only briefly recount the evidence upon which appellant was convicted of Counts One (kidnapping) and Two (rape). The following facts are derived from various testimony that was given during the state court criminal proceedings against appellant (Stark County Tr. Vol. 3 for 7/21/93):

Sheila Knutty was sixteen years old when she first met appellant while walking down a street with a friend. Appellant asked Sheila to braid his hair, and while she did, he talked to her about his daughter who was a classmate of Sheila's. Sheila ran into appellant only one other time before the crime occurred on October 15, 1992. S. Knutty Test. at 48-49, 52; Appellant's Br. at 16.

On October 15, 1992, appellant called Sheila to ask her to help him and his girlfriend Kimberly Southall plan a birthday party for his daughter. Sheila agreed to help. In order to leave the house, Sheila falsely told her parents that she was going out with her girlfriend Raquell and Raquell's mother. Sheila met appellant and Southall at a nearby gas station, and the trio eventually drove to appellant's house. J.A. at 840-43 (S. Knutty Test. at 52-55).

When Sheila came out of the bathroom at appellant's house, appellant asked her to come into Southall's bedroom. Appellant told her that he was going to take pictures of her. When Sheila tried to leave, appellant threw her down on the bed. He then began to smoke crack cocaine. Sheila again tried to leave, but appellant again pushed her down on the bed, brandished a pair of scissors, and told her that she was going to do what he wanted her to. At this time, the door to the bedroom was locked. S. Knutty Test. at 56-59.

Appellant forced Sheila to smoke crack by covering her mouth and nose with his hands. Holding the scissors to her neck, he made her put on a pair of shorts and a tee shirt and imitate poses from a magazine. Appellant then tied Sheila's hands with yarn and began touching her chest and vagina. Appellant repeatedly forced Sheila to engage in vaginal intercourse with him and, holding the scissors to her neck, also forced her to perform oral sex on him. Southall came into the room after going out to buy more crack, and at appellant's demand touched Sheila's vagina and performed oral sex on her. Southall later fell asleep in the room, and appellant again repeatedly forced Sheila to engage in sexual conduct with him. At one point, appellant untied Sheila but then cut her chest with the scissors when she began screaming. S. Knutty Test. at 60-68.

Appellant eventually agreed to release Sheila. He took her to Sheila's friend's house, and Sheila immediately went to a hospital. S. Knutty Test. at 69-70.

Norris was sentenced to an indefinite term of incarceration of fifteen to twenty-five years on each of the two counts, to be served consecutively. J.A. at 155 (Found Guilty By Jury and Sentence Imposed Sept. 10, 1993) (Ex. B-1), 162 (J. Entry Nunc Pro Tunc as of Dec. 27, 1993) (Ex. B-2), 166 (J. Entry Nunc Pro Tunc as of Aug. 30, 1995) (Ex. B-3). Upon exhaustion of all available state remedies, see J.A. at 832 (Ohio Supreme Ct. Entry of Judgment, Case No. 95-448) (Ex. M-1), a habeas petition asserting twelve grounds for relief was filed on July 17, 1995 pursuant to 28 U.S.C. § 2254. All parties involved signed a consent form agreeing to allow a magistrate judge to conduct all proceedings and to render a final decision with respect to appellant's petition. J.A. at 837 (Order of Reference, dated Apr. 24, 1996). The magistrate judge ultimately ordered entry of final judgment denying appellant's petition for federal habeas relief, and appellant appealed. The district court had original jurisdiction pursuant to 28 U.S.C. §§ 2254(a), 636(c)(1) to review a habeas petition filed by a state prisoner.

A certificate of probable cause was issued by the district court on May 6, 1996 allowing appellant's appeal to the Sixth Circuit to go forward. Believing the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applied, a panel of this court issued an order on August 16, 1996 granting appellant a certificate of appealability limiting, as required under 28 U.S.C. § 2253 as amended by AEDPA, those particular issues which were appealable to this court. See Norris v. Schotten, Nos. 96-3536/3553, 1996 WL 469158, Order, at 2(Aug.16, 1996). This order approved three issues for appeal and provided for appointment of counsel. See id. However, it then became clear, under the Supreme Court's subsequent decision in Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), that AEDPA's changes to 28 U.S.C. § 2253 only apply to those petitioners who file their habeas petitions after the act's effective date of April 24, 1996. See id. at 2068. Since appellant had filed his petition for writ of habeas corpus on July 17, 1995, almost a year before the enactment of AEDPA, the requirement of obtaining a certificate of appealability was, in actuality, never applicable to appellant. See Arredondo v. United States, 120 F.3d 639, 640 (6th Cir.1997).

In the pre-AEDPA world, state prisoners who were denied a writ of habeas corpus from the district court were required to obtain a certificate of probable cause from either the "justice or judge who rendered the [final] order or a circuit justice or judge" before an appeal could be taken to the court of appeals. 28 U.S.C. § 2253 (1994). More important, this court has held that "the grant of [a] certificate of probable cause by the district court, in spite of [any] limiting provision, brings before [the court of appeals] the final judgment for review in all respects." Houston v. Mintzes, 722 F.2d 290, 293 (6th Cir.1983) (emphasis added). Thus, in stark contrast to the rules prescribed under AEDPA which require an itemization of appealable issues, in the pre-AEDPA context the court could not pick and choose which issues to review.

Based on this reasoning, this court granted appellant's pro se motion requesting that this court review all of the issues presented to the district court, see Appellant's Notice of Non-Waiver of Former Standard of and for Appellate Review, No. 96-3553 (July 9, 1997), and permitted supplemental briefing from both appellant's appointed counsel and the government on the nine remaining issues not already presented to this court pursuant to the certificate of appealability. ² J.A. at 11 (Pet. for Writ of Habeas Corpus, filed July 17, 1995); Norris v. Schotten, No. 96-3553, Order, at 2 (Oct. 27, 1997). The Seventh Circuit faced a nearly identical situation in Koo v. McBride, 124 F.3d 869 (7th Cir.1997). Under its pre-AEDPA precedents, "a district court's limitation on a certificate of probable cause [similarly] ha[d] no legal effect on the scope of the appeal." Id. at 872 (citing Smith v. Chrans, 836 F.2d 1076 (7th Cir.1988), for this holding). The Seventh Circuit concluded that it was thus bound to apply the pre-AEDPA law and to review not only those issues specified in the certificate of appealability but also those other matters presented by the appellant to the district court. This court is obligated to do the same.

With the supplemental briefing in hand, ³ we now proceed to review the merits of the thirteen grounds raised by appellant for habeas relief. This court has appellate jurisdiction pursuant to 28 U.S.C. §§ 2253, ⁴ 1291, 636(c)(3) over the district court's final judgment.

II. ANALYSIS

Upon petitioner's exhaustion of available state remedies, a federal court may issue a writ of habeas corpus to correct a state trial or other proceeding that has placed the petitioner in state confinement if the state proceeding was rendered fundamentally unfair by a violation of the Constitution, the laws, or the treaties of the United States. See Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir.1994); 28 U.S.C. § 2254(a). In general, such a writ will not be issued unless actual prejudice is shown. See Clemmons, 34 F.3d at 354.

Pursuant to Lindh, the grounds for relief asserted by appellant will be evaluated by this court under the pre-AEDPA standards of review. See Lindh, 521 U.S. at ----, 117 S.Ct. at 2068. Thus, this court will review the district court's denial of habeas corpus relief de novo, but any findings of fact made by the district court will be reviewed for clear error. See Moore v. Carlton, 74 F.3d 689, 690 (6th Cir.1996), cert. denied, 516 U.S. 1183, 116 S.Ct. 1287, 134 L.Ed.2d 231 (1996). "A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (quotation...