Norquay v. Clements

Filing 15

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 5/9/2016. Norquay's petition for relief under 28 U.S.C. § 2254 is DENIED. The Court declines to issue a certificate of appealability. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAMES NORQUAY,
Petitioner,
-vs-

Case No. 15-C-792

MARC CLEMENTS, Warden,
Dodge Correctional Institution,
Respondent.
DECISION AND ORDER
James Norquay was convicted by a Green County jury of one count of
second degree sexual assault of a child, three counts of sexual assault by a
foster parent, and two counts of incest with a child. Norquay was given
concurrent 35-year sentences consisting of twenty years of initial confinement
and fifteen years of extended supervision. In state court post-conviction
proceedings, Norquay pressed claims for ineffective assistance of counsel.
Norquay’s conviction was upheld in a written opinion by the Wisconsin Court
of Appeals, and the Wisconsin Supreme Court denied review. Norquay
petitions for relief under 28 U.S.C. § 2254.
The appeals court opinion includes the following factual summary:
This matter arises out of allegations of sexual assault made by
a foster child. The child [referred to as HN] was placed in the
Norquays’ home by Lafayette County Human Services on
November 6, 2008. The placement was troubled from the start,

but Norquay and his wife Lori eventually adopted the child on
November 17, 2009.
The child was removed from the home following an incident on
January 2, 2010. Norquay’s wife Lori had purchased a pink
Playboy shirt for herself, prompting a temper tantrum by the
child, who felt she should also have been allowed one. After
Lori called 911, the child made comments such as, “[Y]ou don’t
even know what dad and I are doing.” When police arrived, an
officer heard the child say as she passed Norquay and went
into her room, “Just tell them the truth, dad.” When
questioned by police, the child stated that she was in a sexual
relationship with Norquay.
The child claimed that the last sexual incident occurred on
December 25, 2009, when she and Norquay were working in
the alpaca shed and “sex happened, not penis to vagina sex,
but I was touching him, and then there was … ejaculation on
my hand, and I wiped it on my overalls.” A search warrant
retrieved coveralls with visible semen stains. DNA analysis
determined that Norquay was the source of the semen,
although Norquay’s wife insisted that the semen was planted
by the victim.
The victim recounted numerous other specific sexual incidents
involving penetration with finger and penis, masturbation,
and oral sex. She also recounted details of Norquay’s body and
sexual preferences, including Norquay’s predilection for nipple
stimulation, and thong or G-string underwear. She also stated
that Norquay had two tattoos, including one on his lower
pelvic region. Another notable detail was that Norquay shaved
his pelvic region.
An exchange of e-mails occurred between the victim and
Norquay on October 2, 2009. Among other things, the victim
wrote, “im still have jumbled feelings im sure you do to [sic]”
and ‘[I] really just want you to JUST be my dad thats it … no
more no less.” The last sentence of the last e-mail from
Norquay states: “Will you please delete these e-mails and then
delete them from your deleted items?”

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State of Wis. v. Norquay, 2013AP526-CR, at ¶¶2-6 (Wis. Ct. App. Nov. 20,
2014).
The court of appeals noted the familiar two-part analysis for ineffective
assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668
(1984). First, petitioner needed to show deficient performance, meaning that
“counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” 466 U.S. at 687.
Second, petitioner was required to show that he was prejudiced by the
deficient performance. Id. at 687, 694.
This standard is deferential on its own, but even more so in the context
of federal habeas relief, which, pursuant to the Antiterrorism and Effective
Death Penalty Act, “shall not be granted with respect to any claim that was
adjudicated on the merits in State court unless the adjudication of the claim –
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, …; 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.” § 2254(d). In other words,
the Court applies “doubly deferential judicial review,” and “because the
Strickland standard is a general standard, a state court has even more
latitude to reasonably determine that defendant has not satisfied that
standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).

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In this case, however, the state appeals court presumed deficient
performance and only addressed prejudice. Since the “last reasoned opinion”
did not address deficient performance, this prong of Strickland is subject to de
novo review. Thomas v. Clements, 789 F.3d 760, 766-67 (7th Cir. 2015).
Respondent preserves the argument, advanced by Judge Easterbrook’s
concurrence in the denial of rehearing en banc, that AEDPA review should
apply to both prongs of Strickland even if the last reasoned state court opinion
addressed only one. Thomas v. Clements, 797 F.3d 445, 447 (7th Cir. 2015)
(“Why should two components of ineffective assistance be separate claims for
the purpose of § 2254(d)? They are distinct issues, certainly, but why distinct
claims?”) (emphasis in original); see also Atkins v. Zenk, 667 F.3d 939, 944
(7th Cir. 2012). In any event, the Court finds, as did the state court, that this
case can be resolved on the prejudice prong.
Norquay argues that the state court’s ruling on prejudice also is not
entitled to deference because the state court did not apply the correct legal
standard. The court stated that prejudice “requires showing that counsel
made errors so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” State v. Norquay, at ¶ 9. This is an almost verbatim quote
from Strickland, 466 U.S. at 687. Reliability, however, is not the ultimate
inquiry; instead, the petitioner must show a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have

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been different.” Mosley v. Atchison, 689 F.3d 838, 850 (7th Cir. 2012) (quoting
Strickland at 694). Even so, “occasional references to reliability do not
undermine [a state court’s] holding. Strickland itself states that to show
prejudice one must demonstrate ‘that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.’
Furthermore, what is important is that the overall reasoning is consistent
with Strickland.” Eckstein v. Kingston, 460 F.3d 844, 851 (7th Cir. 2006)
(internal citations omitted). As in Eckstein, the state court’s reasoning is
consistent with Strickland, and even if it wasn’t, de novo review under the
correct standard leads the same conclusion – no “reasonable probability of a
different result.”
The theory of Norquay’s defense was that HN had a history of lying
and making false allegations of sexual assault, usually triggered by a stressful
event where she thought she was being treated unfairly. Norquay argues that
his attorney was ineffective for failing to present testimony from his wife,
Lori, concerning her threat to HN, made in the month before HN’s allegations
against Norquay, that she could put HN “back in the system.” The problem
with this argument is that the jury already knew about HN’s history of lying
and false assault allegations. Evidence regarding a supposed “triggering
event” would not have created a reasonable probability of a different result
given the evidence that corroborated HN’s allegations, such as DNA evidence

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and HN’s knowledge of Norquay’s tattoos, shaved groin, and sexual
proclivities. Norquay argues that Lori’s threat put HN on alert and caused her
to plant the DNA on her overalls. Norquay’s theory that HN planted the DNA
evidence, which the court of appeals correctly rejected as “farfetched,” is not
more believable simply because of the timing of Lori’s threat.
Norquay also argues that his trial counsel was ineffective for failing to
ensure that HN’s friend, KH, testified at trial. Norquay’s attorney and the
State stipulated that HN told KH that she had a make-believe son named
Gunner and had given KH a scrapbook containing pictures to illustrate as
much. Norquay claims that live testimony would have been more detailed and
compelling. The Court doesn’t see how. Moreover, the stipulation prevented
more damaging evidence from being introduced at trial: KH’s statement to law
enforcement about what HN told her about the assaults. See State v. Norquay,
at ¶ 17.
Finally, Norquay argues that his counsel was ineffective for failing to
explore an innocent explanation for the damaging email exchange between
himself and HN, that being HN’s assertion that she had been “raped by a
black boy” while on respite care, resulting in an emotional family meeting the
day before the email exchange. This explanation does not account for Norquay
telling HN to delete the emails.
In connection with this Order, the Court must decide whether to issue

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a certificate of appealability, which involves an inquiry into whether
reasonable jurists could debate whether the petition should be resolved in a
different manner, or that the issues presented were adequate to deserve
encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 484
(2000). One issue that might deserve further review is whether AEDPA
applies to both prongs of the Strickland inquiry even if the state court
addresses only one. Since this issue did not impact the Court’s ruling, the
Court will not issue a certificate. Rule 11(a), Rules Governing Section 2254
Cases.
IT IS HEREBY ORDERED THAT Norquay’s petition is DENIED.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 9th day of May, 2016.

SO ORDERED:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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