Norman v. Korneman
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Petitioner Terrance T. Norman's Amended Petition to Vacate, Set Aide, or Correct Sentence Pursuant to 28 U.S.C. § 2254 (Doc. 11 ) is DENIED and this case is hereby DISMISSED. A separate Or der of Dismissal will accompany this Memorandum and Order. IT IS FURTHER ORDERED that, because Petitioner cannot make a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834 (1998). Signed by District Judge John A. Ross on 4/27/2021. (LNJ)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
TERRANCE T. NORMAN,
SHERIE L. KORNEMAN,
Case No. 4:19-CV-02299-JAR
MEMORANDUM AND ORDER
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.
FACTUAL AND PROCEDURAL BACKGROUND
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
Ground Two: Ineffective Assistance – Converse Jury Instruction
Ground Three: Due Process – Motion to Suppress
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 [the Supreme] 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 the
pendency of any state post-conviction application or other collateral review. 28 U.S.C. §
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 (requiring that application for transfer to Missouri
Supreme Court be filed within 15 days of order). Petitioner filed his post-conviction motion
pursuant to Mo. Sup. Ct. R. 29.15 on September 8, 2014, 72 days later, tolling AEDPA’s oneyear 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).
There are some inconsistencies in the parties’ briefing as to when exactly certain mandates issued and appeal
periods expired under Missouri law. These slight differences are immaterial, however, as it is readily apparent that
Petitioner’s claims are untimely unless equitable tolling is available.
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) (“We emphasized that the miscarriage of justice exception is concerned
with actual as compared to legal innocence.”); Narcisse v. Dahm, 9 F.3d 38, 40 (8th Cir. 1993)
(reversing district court’s granting of habeas relief where claim was one of legal innocence).
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 factual
innocence 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 to file a timely petition for habeas relief. No such petition was filed until August 5, 2019.
A litigant seeking equitable tolling must prove two elements: (1) that he has been
pursuing his rights diligently; and (2) that some extraordinary circumstances stood in his way.
Burns v. Prudden, 588 F.3d 1148, 1150 (8th Cir. 2009). Petitioner has the burden to demonstrate
grounds warranting equitable tolling. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). This Court
finds that Petitioner did not pursue his rights diligently, nor did extraordinary circumstances
prevent him from filing timely. Petitioner claims he received notice of the mandate on November
6, 2018, meaning by his own account he had approximately four months to file a timely petition.
See id. at 419 (petitioner who waited five months after judgment to file habeas petition did not
establish requisite diligence); Earl v. Fabian, 556 F.3d 717, 724 (8th Cir. 2009). As to
Petitioner’s lack of law library access or § 2254 forms, the Eighth Circuit has held that “lack of
access to legal resources does not typically merit equitable tolling.” Earl, 556 F.3d at 724; see
also Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000) (“Even in the case of an
unrepresented prisoner alleging a lack of legal knowledge or legal resources, equitable tolling
has not been warranted.”).
Because Petitioner has not demonstrated that he pursued his rights diligently or
extraordinary circumstances stood in the way of his filing a timely petition, equitable tolling is
not warranted. Despite Petitioner’s claims being untimely and therefore deserving of dismissal
under AEDPA, this Court will proceed in the alternative and address the other arguments
presented by the parties.
B. Procedural Default
Respondent contends that Petitioner has procedurally defaulted his first two grounds for
relief because the claims were not presented at each step of the post-conviction proceedings.
(Doc. 12 at 12-13). At least as to Ground One, Petitioner “acknowledges that this claim is
procedurally defaulted because none of his previous attorneys presented the claim to the state
courts.” (Doc. 11 at 20). 2 Petitioner claims, however, that his default should be excused under
the exception established by the Supreme Court in Martinez v. Ryan, 566 U.S. 1 (2012).
A habeas petitioner under § 2254 may avoid procedural default only by showing that
there was cause for the default and resulting prejudice, or that a miscarriage of justice will result
from enforcing the procedural default. Wainwright v. Sykes, 433 U.S. 72, 87, 90-91 (1977). To
establish cause, the petitioner must show that “some objective factor external to the defense”
prevented his compliance with a state procedural rule. Murray v. Carrier, 477 U.S. 478, 488
(1986). In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court established the
general rule that counsel’s errors in post-conviction proceedings do not qualify as cause for
default. The Supreme Court recognized a narrow exception to this rule in Martinez, holding:
“Where, under state law, a claim of ineffective assistance of trial counsel must be raised in an
Petitioner raised Ground Two in his post-conviction motion. (Doc. 12-7 at 56). Petitioner did not, however, raise
this claim on the appeal of the denial of his post-conviction motion. (Doc. 12-11). Therefore, the argument has been
procedurally defaulted unless the Martinez exception applies. See Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir.
2012) (internal quotation omitted) (“In Missouri, a claim must be presented at each step of the judicial process in
initial-review collateral proceeding, a procedural default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance at trial if, in the initial-review proceeding,
there was no counsel or that counsel was ineffective.” Martinez, 566 U.S. at 17. The Supreme
Court noted that the underlying ineffective assistance of trial counsel claim must be “a
substantial one, which is to say that the prisoner must demonstrate that the claim has some
merit.” Id. at 14. Finally, the Supreme Court has clarified that this exception does not apply to
claims of ineffective assistance of appellate counsel. Davila v. Davis, 137 S. Ct. 2058 (2017); see
also 28 U.S.C. § 2254(i).
In Ground One, Petitioner alleges ineffective assistance of trial, appellate, and postconviction counsel for failing to argue that the evidence was insufficient to support a conviction
for first degree robbery. In Ground Two, Petitioner argues that trial counsel was ineffective for
failing to request a converse jury instruction. As discussed above, the Martinez exception only
applies to trial counsel, rendering Petitioner’s claims in Ground One as to appellate and postconviction counsel procedurally defaulted. Because Petitioner had access to appellate and postconviction counsel, moreover, he must demonstrate ineffective assistance by such counsel to
excuse his procedural default.
Petitioner has not demonstrated that his appellate or post-conviction counsel provided
ineffective assistance by failing to pursue Grounds One and Two to completion. Under
Strickland v. Washington, Petitioner must show that (1) appellate counsel’s performance was
objectively unreasonable and (2) Petitioner was prejudiced such that the result of the proceedings
would have been different. 466 U.S. 668, 694 (1984). Judicial scrutiny of counsel’s performance
is “highly deferential,” and this Court “must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Id. at 689. On appeal,
order to avoid default.”).
moreover, counsel “should not raise every nonfrivolous argument” but instead should include
“only those arguments most likely to succeed.” Davila, 137 S. Ct. at 2067 (citation omitted); see
also Oxford v. Delo, 59 F.3d 741, 746 (8th Cir. 1995). As discussed below, this Court finds that
Grounds One and Two of the Amended Petition are substantively meritless. Accordingly, it was
not unreasonable for appellate and post-conviction counsel to decline to fully pursue those
arguments, nor was Petitioner prejudiced. Because Petitioner’s appellate and post-conviction
counsel were not ineffective, his procedural default cannot be excused under the Martinez
C. Substantive Analysis
Ground One: Ineffective Assistance – Failure to Challenge Sufficiency of Evidence
In his first ground for relief, Petitioner argues that trial, appellate, and post-conviction
counsel all rendered ineffective assistance by failing to argue that the evidence was insufficient
to support a first degree robbery conviction. Petitioner claims that the acquittal for armed
criminal action necessarily precludes conviction for first degree robbery based on the elements of
each crime. At the outset, the Court notes that Petitioner’s claim of ineffective assistance of postconviction counsel is not cognizable on habeas review. See 28 U.S.C. § 2254(i) (“The
ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction
proceedings shall not be a ground for relief in a proceeding arising under section 2254.”);
Coleman, 501 U.S. at 572 (citations omitted) (“There is no constitutional right to an attorney in
state post-conviction proceedings. Consequently, a petitioner cannot claim constitutionally
ineffective assistance of counsel in such proceedings.”).
On January 25, 2012, Petitioner got into the backseat of a car with the undercover
detective for a purported gun sale but instead stole $450 and fled. (Doc. 12-5 at 2). A critical
issue at Petitioner’s trial was whether he threatened the victim with a gun or merely snatched the
money and ran. A jury convicted Petitioner of first degree robbery pursuant to instructions which
stated that Petitioner must have “displayed or threatened the use of what appeared to be a deadly
weapon or dangerous instrument.” (Doc. 12-1 at 412). The jury acquitted Petitioner of armed
criminal action, however, which only included the elements that he (1) committed first degree
robbery and (2) committed such offense “by or with or through the knowing use or assistance or
aid of a deadly weapon.” (Id. at 414). Petitioner argues that “[w]ithout the deadly weapon
element, the State’s evidence was insufficient to sustain a conviction for first degree robbery.”
(Id.). Petitioner’s first ground for relief fails for three reasons.
First, there was sufficient evidence to support a conviction for first degree robbery. The
applicable standard for determining whether a state court conviction is sufficiently supported is
whether any “rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Substantial evidence was
presented at trial to support a finding that Petitioner committed first degree robbery. (See
generally Doc. 12 at 16). There is clear Eighth Circuit precedent in nearly identical
circumstances contradicting Petitioner’s claim. In Arnold v. Wyrick, 646 F.2d 1225 (8th Cir.
1981), the Eighth Circuit reviewed the denial of a § 2254 petition where the petitioner had been
convicted of first degree robbery but acquitted of armed criminal action. The petitioner argued
that his “conviction of first degree robbery was inconsistent with his acquittal of armed criminal
action.” Id. at 1227. The Eighth Circuit found that “inconsistent verdicts on separate counts of an
indictment in a single trial are not fatal to a conviction.” Id. at 1228 (citations omitted); see also
State v. Clemons, 643 S.W.2d 803, 805 (Mo. banc 1983) (An inconsistent verdict “does not
require a reversal provided there is sufficient evidence to support the jury’s finding of guilt.”).
Put simply, the supposedly inconsistent verdicts do not necessarily indicate that there was
insufficient evidence to support the first degree robbery conviction. Trial and appellate counsel
are not ineffective for failing to raise a meritless claim. See Thai v. Mapes, 412 F.3d 970, 979
(8th Cir. 2005) (citation omitted) (“[C]ounsel’s trial strategy cannot be challenged on the basis of
a meritless claim.”).
Petitioner also argues that there was no evidence to support a finding of “forcible
stealing,” a required element of first degree robbery. This Court finds that there was sufficient
evidence for the jury to believe that Petitioner at least threatened the use of a gun. Detective
Wilson testified that Petitioner “inserted the magazine into the gun and told [him] not to move.”
(Doc. 12-1 at 236). Counsel clarified: “Was the gun actually pointed at you?” (Id.). Detective
Wilson responded: “Yes, sir.” (Id.). The jury also heard testimony from the informant, who was
in the car, that Petitioner possessed the gun. (Id. at 274-75). A reasonable juror could find
Detective Wilson’s statements credible and convict Petitioner of first degree robbery. See State v.
Saucy, 164 S.W.3d 523, 527 (Mo. Ct. App. 2005) (citation omitted) (“The distinctive element of
robbery in the first degree is the taking of the property of another by violence or by putting the
victim in fear . . . . Further, in instances where the robber falsely pretends to be pointing a gun,
the fact that defendant may not have had a gun does not prevent a conviction.”). Put simply, this
issue was extensively addressed at trial, and sufficient evidence was presented to the jury to
support a conviction.
Second, it is not readily apparent that the jury’s verdict was, in fact, inconsistent. The
jury instruction for first degree robbery required that Petitioner “displayed or threatened the use
of what appeared to be a deadly weapon.” (Doc. 12-1 at 412 (emphasis added)). The armed
criminal action instructions, meanwhile, required knowing use of a deadly weapon. (Id. at 414).
The jury could plausibly have believed that Petitioner threatened the use of, but did not actually
use, a deadly weapon, as discussed above. At least one court in this district has reached an
[T]he applicable law and verdict director instructions submitted to the jury did not
require that the petitioner be armed in order to commit attempted first degree
robbery. They required only that he take a substantial step toward committing that
crime by approaching the victim, demanding money, and threatening to shoot her.
In contrast, the requisite elements for the crime of armed criminal action required
that petitioner actually be armed. Thus, if appellate counsel had raised the claim
of inconsistent verdicts on appeal, it most likely would have been rejected. Carter
v. Steele, No. 4:06-CV-1301 CDP, 2009 WL 1739997, at *5 (E.D. Mo. June 18,
2009) (emphasis added).
In closing arguments, the prosecution emphasized that to meet the fourth element of first degree
robbery, “[i]t actually doesn’t even have to have been a real gun.” (Doc. 12-1 at 421). Because
the jury’s verdict was not necessarily inconsistent, any challenge to the sufficiency of the
evidence on these grounds would have failed.
Finally, trial counsel did argue that the evidence was insufficient to support a conviction.
Trial counsel filed a Motion for Judgment of Acquittal arguing that the “trial court erred in
accepting the jury’s guilty verdict on the count of Robbery in the First Degree” because the
“jury’s determination that [Petitioner] was NOT guilty of Armed Criminal Action is inconsistent
with its finding that Defendant displayed or threatened the use of what appeared to be a deadly
weapon.” (Doc. 12-2 at 43). During closing arguments, trial counsel repeatedly argued that the
evidence did not support a finding that Petitioner possessed a gun at the time of the theft. (Doc.
12-1 at 431-37). Petitioner claims that trial counsel rendered ineffective assistance by failing to
argue that the evidence was insufficient to support a first degree robbery conviction. The record
reflects, however, that trial counsel made this exact argument both at trial and in the Motion for
Judgment of Acquittal. Accordingly, habeas relief is not warranted based on Petitioner’s first
ground for relief.
Ground Two: Ineffective Assistance – Converse Jury Instruction
In his second ground for relief, Petitioner contends that trial counsel was ineffective for
failing to request a converse jury instruction regarding the deadly weapon element of first degree
robbery. The record reflects, however, that the instructions provided to the jury included nearly
identical language to that now proposed by Petitioner. At the end of the first degree robbery
instruction, the trial court stated: “However, unless you find and believe from the evidence
beyond a reasonable doubt each and all of these propositions, you must find the defendant not
guilty of that offense.” (Doc. 12-1 at 412). One of those propositions was that Petitioner
“displayed or threatened the use of a deadly weapon or dangerous instrument.” (Id.).
Under Missouri law, a defendant is entitled to a converse jury instruction in order to
emphasize a particular element. State v. Davenport, 174 S.W.3d 666, 668 (Mo. Ct. App. 2005).
Petitioner did not suffer prejudice under Strickland, however, merely because the trial court did
not make a converse instruction as to the deadly weapon element. The trial court used the
approved instruction for first degree robbery. See United States v. Naylor, 887 F.3d 397, 405 (8th
Cir. 2018) (citation omitted) (“Missouri courts are required to use the Missouri Approved
Instructions – Criminal.”); State v. Zink, 181 S.W.3d 66, 74 (Mo. banc 2005) (“MAI instructions
are presumptively valid and, when applicable, must be given to the exclusion of other
instructions.”). A claim of ineffective assistance for failing to object to a jury instruction fails if
the court’s instructions as a whole “adequately advised [the jury] of the essential elements of the
offenses charged.” Miles v. Nix, 911 F.2d 146, 148 (8th Cir. 1990). The trial court advised the
jury of the essential elements of first degree robbery by utilizing the approved instruction. It was
not objectively unreasonable for trial counsel to accept the approved jury instruction for first
degree robbery, nor was Petitioner prejudiced by the failure to provide a converse jury
instruction regarding the deadly weapon element.
Ground Three: Due Process – Motion to Suppress
In his third ground for relief, Petitioner argues that the trial court erred in denying his
motion to suppress statements made to Detective Stepp because such statements were obtained in
violation of Petitioner’s Miranda rights. See Miranda v. Arizona, 384 U.S. 436 (1966).
Because this claim was fully adjudicated on the merits in state court proceedings, this Court
cannot grant relief 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 Miranda warning must be administered when a suspect undergoes custodial
interrogation, which occurs when an officer’s interaction with the suspect is ‘likely to elicit an
incriminating response.’” United States v. Torres-Lona, 491 F.3d 750, 757 (8th Cir. 2007)
(quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). Miranda warnings are “not
themselves rights protected by the Constitution but [are] instead measures to ensure that the
[suspect’s] right against compulsory self-incrimination [is] protected.” Moran v. Burbine, 475
U.S. 412, 425 (1986) (quoting New York v. Quarles, 467 U.S. 649, 654 (1984)).
After Petitioner was arrested, Detective Stepp began advising him of his Miranda rights.
The following exchange occurred during this videotaped interrogation:
Detective Stepp: Same thing, if you understand put your initials. You have the
right to talk to a lawyer for advice before you ask any questions, and to have a
lawyer present during questioning. Do you understand that?
Petitioner: Yea, I can’t call my lawyer?
Detective Stepp: You can call your attorney as soon as I get done reading this. If
you cannot afford to hire one if you so desire, one will be appointed for you for
any questioning. Do you understand that?
Petitioner: Mm-hmm [affirmative].
Detective Stepp: Can you put your initials right there? If you decide to answer
questions and/or make a statement, you have the right to stop answering questions
and to remain silent. Do you understand that? And this is just saying, you can read
the waiver out loud if you would please? Can you read that out loud to me?
Petitioner: Knowing and understanding what my rights are, I’m going to answer
questions / or make a statement at this time – I’m not making no statement.
Detective Stepp: Okay. Could you sign it that I read it to you? And you don’t
want to talk to with me?
Petitioner: About what? I ain’t rob nobody, especially not at no gunpoint. I didn’t
make nobody do nothing. (Doc. 12-5 at 8).
Following this exchange, Petitioner stated that he “rather it be a snatch and grab” than first
degree robbery because he “ain’t put no gun up to that man and make him do nothing.” (Id. at 9).
Detective Stepp testified regarding these statements at trial, and the videotaped interrogation was
admitted as an exhibit, with portions played at trial. (Doc. 12-1 at 301-08).
At the outset of trial, Petitioner’s counsel made a motion to suppress the video and
testimony by Detective Stepp on the grounds that Petitioner had invoked his right to counsel and
right to remain silent under Miranda. The trial court denied the motion because Petitioner
“initiated the conversation” and “that was voluntary and done after [Petitioner] was read his
rights.” (Id. at 16). The Missouri Court of Appeals affirmed this ruling, holding that Petitioner
“did not articulate his desire to have counsel present sufficiently clearly that a reasonable police
officer would understand that statement to be a request for an attorney.” (Doc. 12-5 at 9). The
court also found that Petitioner “voluntarily waived his right by continuing to make statements to
Detective Stepp even after he mentioned calling his lawyer.” (Id. at 10).
A suspect must make a “clear and unambiguous request for counsel.” United States v.
Langford, 155 Fed. App’x 936, 937 (8th Cir. 2005) (per curiam) (citing Davis v. United States,
512 U.S. 452, 459 (1994)). The Supreme Court has adopted this same standard for invocation of
the right to remain silent. Berghuis v. Thompkins, 560 U.S. 370 (2010). These rights can be
waived after being invoked. “Where the prosecution shows that a Miranda warning was given
and that it was understood by the accused, an accused uncoerced statement establishes an
implied waiver of the right to remain silent.” Id.; see also Davis v. United States, 512 U.S. 452,
458 (1994) (citation omitted) (“[I]f a suspect requests counsel at any time during the interview,
he is not subject to further questioning until a lawyer has been made available or the suspect
himself reinitiates conversation.”).
Petitioner did not unequivocally invoke his right to counsel simply by asking if he can
call his lawyer. In Davis, the Supreme Court affirmed that a suspect’s stating “[m]aybe I should
talk to a lawyer” did not constitute an unambiguous request for counsel. Davis, 512 U.S. at 462.
In very similar circumstances to this case, the Eighth Circuit has held that a suspect’s asking
“Could I call my lawyer?” was not an unambiguous request for counsel. Dormire v. Wilkinson,
249 F.3d 801, 805 (8th Cir. 2001). Petitioner here asked if he could call his lawyer and was
informed that he could once Detective Stepp finished reading the Miranda warnings. Petitioner’s
question does not amount to an unequivocal request for counsel. The Missouri Court of Appeals,
moreover, reasonably applied federal law in reaching the same conclusion.
Petitioner arguably invoked his right to remain silent by stating he was “making no
statement.” (Doc. 12-5 at 8). A suspect invokes his right to remain silent by making a “clear,
consistent expression of a desire to remain silent,” but “assertions of an intent to exercise the
right to remain silent are not enough to invoke the right.” United States v. Ferrer-Montoya, 483
F.3d 565, 569 (8th Cir. 2007) (citations omitted). Statements like “I have nothing else to say”
have been held to meet this standard. United States v. Reid, 211 F. Supp. 2d 366, 374-75 (D.
Mass. 2002). A suspect “need not speak with the discrimination of an Oxford don” to invoke this
right. Davis, 512 U.S. at 459. The Missouri Court of Appeals did not specifically address
whether Petitioner had invoked his right to remain silent.
Even if Petitioner had invoked his right to counsel and to remain silent, however, he
waived those rights by continuing to make voluntary statements to Detective Stepp. A waiver of
rights under Miranda must be voluntary, knowing, and intelligent. See Prentiss v. Ault, 352 Fed.
App’x 141, 142 (8th Cir. 2009) (per curiam) (citing Miranda, 384 U.S. at 444). Petitioner
informed Detective Stepp that he was “not making no statement.” (Doc. 12-5 at 8). Detective
Stepp asked Petitioner to sign that the statement was read to him and confirmed that Petitioner
“doesn’t want to talk with [him].” (Id.). Petitioner responded: “About what? I ain’t rob nobody,
especially not at no gunpoint. I didn’t make nobody do nothing.” (Id.). Petitioner proceeded to
make multiple statements without expressing any further desire to remain silent. The Missouri
Court of Appeals reasonably concluded that Petitioner “voluntarily continued speaking to
Detective Stepp despite his initial assertion that he did not want to make a statement.” (Id. at 10).
Under Miranda, interrogation must cease after an invocation of such rights “unless the accused
himself initiates further communication, exchanges, or conversation with the police.” Edwards v.
Arizona, 451 U.S. 477, 485 (1981). After Petitioner’s potential invocation of his right to remain
silent, Detective Stepp merely confirmed that Petitioner was exercising this right. The Missouri
Court of Appeals reasonably determined that Petitioner proceeded to knowingly and voluntarily
waive his rights by initiating further conversation. See North Carolina v. Butler, 441 U.S. 369
(1979) (holding Miranda rights can be impliedly waived).
Pursuant to AEDPA, this Court may only grant Petitioner habeas relief if it determines
that the Missouri Court of Appeals’ adjudication “was contrary to, or involved an unreasonable
application of, clearly established federal law.” 28 U.S.C. § 2254(d)(1). Such review is “highly
deferential.” Ali v. Roy, 950 F.3d 572, 574 (8th Cir. 2020) (citation omitted). The Missouri Court
of Appeals reviewed the facts and reasonably concluded that the trial court properly denied
Petitioner’s motion to suppress statements made during Detective Stepp’s interrogation.
After careful consideration, this Court holds that Petitioner is not entitled to habeas relief.
First, Petitioner did not timely file his petition, and Petitioner has not demonstrated that equitable
tolling is warranted. Second, Petitioner procedurally defaulted his first two grounds for relief and
has not established that the defaults should be excused pursuant to the Martinez exception.
Finally, Petitioner’s arguments fail substantively because he has not met the Strickland standard
for his ineffective assistance claims and the Missouri Court of Appeals reasonably applied
federal law to Petitioner’s sole exhausted claim.
IT IS HEREBY ORDERED that Petitioner Terrance T. Norman’s Amended Petition to
Vacate, Set Aide, or Correct Sentence Pursuant to 28 U.S.C. § 2254 (Doc. 11) is DENIED and
this case is hereby DISMISSED. A separate Order of Dismissal will accompany this
Memorandum and Order.
IT IS FURTHER ORDERED that, because Petitioner cannot make a substantial
showing of the denial of a constitutional right, the Court will not issue a certificate of
appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834
Dated this 27th day of April, 2021.
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
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