United States District Court, D. Delaware
Allison Lamont Norman. Pro se Petitioner.
Elizabeth R. McFarlan, Deputy Attorney General, Delaware
Department of Justice, Wilmington, Delaware. Attorney for
U.S. DISTRICT JUDGE
before the Court is an Application For A Writ Of Habeas
Corpus Pursuant To 28 U.S.C. § 2254
(“Petition”) filed by Petitioner Allison Lamont
Norman (“Petitioner”). (D.I. 3) For the reasons
discussed, the Court will dismiss the Petition and deny the
facts leading to Petitioner's convictions are set forth
below, as recounted by the Delaware Supreme Court in
Petitioner's direct appeal:
In a tragic shooting spree that unfolded across fifteen miles
and two states on April 7, 2001, [Petitioner] shot at
numerous people while delirious, killing two and wounding
several others, including one woman who became paralyzed.
[Petitioner] fatally wounded Jamell Weston and wounded Marcus
Cannon near a school bus stop at the entrance to the Carvel
Gardens apartment complex in Laurel, Delaware. Afterward,
[Petitioner] stole a parked car from the apartment complex
and drove to Salisbury, Maryland. Along the way, Anthony
White attempted to ask [Petitioner] for a ride home, but as
White approached the vehicle, [Petitioner] shot and wounded
him. When [Petitioner] reached Delmar, Maryland, he shot at a
garbage truck and crew, but none of the workers sustained
injuries. While continuing to drive to Salisbury,
[Petitioner] shot at several people and vehicles, wounding
Marsha Hankerson. When he arrived at his friend Tobias
Cannon's home in Salisbury, [Petitioner] took one of his
dogs and shot two others. He then shot and killed Davondale
Peters after Peters gave him a ride. [Petitioner] also shot
Carla Green, who was driving with her daughter, leaving Green
paralyzed. After shooting Peters and Green, [Petitioner]
chased after witnesses and went from house to house in
Salisbury, eventually breaking into the home of Mary and
Watson Dutton, an elderly couple. He left their home without
harming them and was arrested a short time later by Wicomico
County Sheriffs officers.
The defense presented evidence that [Petitioner] was acting
in the throes of a psychotic episode driven by bizarre
delusions that were the culmination of a lifetime of exposure
to abuse, violence, and criminal conduct. As related by
psychiatrists at trial, [Petitioner] experienced a
concurrence of factors which contributed to this mental
state. On April 17, 2003, his older brother, Shane DeShields,
and a friend killed a man in a botched attempt to steal the
drugs the man was selling. [Petitioner], who deeply admired
DeShields, was crushed by his brother's imprisonment. He
attended DeShields' capital murder trial and witnessed
his conviction. At his brother's penalty hearing,
evidence was presented that DeShields and [Petitioner], when
young children, were sexually assaulted by a babysitter, Ben
Green. [Petitioner], as a child, had begged his mother not to
leave them with Green. He was furious at her for having kept
the abuse quiet and for denying him the support of family and
friends. His anger toward his mother was renewed by the
cavalier attitude he felt she displayed about the assaults at
the hearing. On October 8, 2004, DeShields was sentenced to
life in prison.
On October 16, 2004, [Petitioner] was parked at a convenience
store in Delmar, Maryland when two men approached his vehicle
and opened fire. [Petitioner] returned fire, but was shot in
the abdomen and leg. His wounds required surgery to his colon
and he was hospitalized for several weeks. [Petitioner] was
charged with a weapons offense in connection with the
shooting and faced a potential ten year prison sentence in
Maryland upon his release from the hospital.
After his discharge from the hospital, [Petitioner] moved in
with his mother in Seaford. Although still in pain from the
surgery, he stopped taking his prescribed medications;
instead, he consumed marijuana and ecstasy. For the next few
months, [Petitioner] took two to four ecstasy tablets per day
and regularly smoked marijuana. He was terrified that his
life was in danger because he did not know the identity of at
least one of the men who shot him, and he suspected that his
own friends were involved.
In January 2005, [Petitioner] moved to Carvel Gardens in
Laurel to live with his girlfriend, Kisha DeShields, and her
five children. He was the father of one of Kisha's
children, five-year-old Donesha. On January 10, Ronshelle
Harmon gave birth to [Petitioner's] son, Ny'Kael.
[Petitioner] did not sign the birth certificate, but he
visited Harmon in hospital and occasionally visited
Ny'Kael in early Spring 2005, sometimes bringing Donesha
On April 6, knowing he faced up to ten years in jail on the
weapons charge, [Petitioner] failed to appear for his
scheduled Maryland court appearance. A warrant was issued for
his arrest. [Petitioner] spent a few hours with his friend
Devon Cannon, during which time they smoked marijuana. He
also took ecstasy. He then discussed potentially killing his
mother, even scouting a gravesite in the wooded area to which
he and Devon had traveled. [Petitioner] then began to fear
that Devon might kill him, and told him so, but later
Later that night, [Petitioner] started to believe he had
special powers of vision. He thought he could see things in
the dark and that things turned white for him in the
darkness. He believed he was blessed with this special gift.
When Kisha seemed to ignore or neglect him, [Petitioner]
became angry, pointed a gun at her, and told her not to
“disrespect” him. He then danced around the
apartment, announcing that he was the Messiah who ruled the
After [Petitioner] calmed down, he watched an episode of the
television show, The X-Files. He formed the belief that
aliens or demons were trying to get into the children's
bedrooms to kidnap and rape them. [Petitioner] went into
their rooms and, thinking his enhanced vision allowed him to
see the creatures outside in the darkness, he yelled at them
and chased them. Thinking that this was a test to see if he
could protect his family, [Petitioner] “guarded”
the children that night by pinching and pulling the little
girls' hair in the belief that their screams would cause
the aliens or demons to retreat.
By the next morning, [Petitioner] appeared to Kisha to be
better, though he still expressed concern for the
childrens' safety. [Petitioner] later explained that,
based on recent experiences, he also had formed the belief
that black people had been taken over by the demonic forces
he was fighting. According to [Petitioner], even though some
of the people he shot at were white, he believed them to be
black, and therefore evil, when he shot at them.
[Petitioner's] delusions continued. After helping Kisha
get the children ready for school, [Petitioner] donned a
bulletproof vest and, armed with a gun, took Donesha to the
bus stop at about 8 a.m. On their way, they encountered
Jamell Weston and Marcus Cannon, who were returning from
dropping off Weston's nephew and Cannon's
girlfriend's children. Believing that Weston and Cannon
were alien or demon creatures who were about to kidnap and
molest Donesha, [Petitioner] drew his gun and shot Weston at
point blank range, once in the face and once in the chest.
Weston fell to the sidewalk and died. Cannon fled and
[Petitioner] fired after him, hitting him in the arm.
[Petitioner] then walked back to the apartment, with Donesha
running ahead to tell her mother what had occurred.
Apparently misunderstanding Donesha's account, Kisha
thought [Petitioner] had only fired his gun into the air. She
told him to leave because the police would probably be
called. [Petitioner] left, taking his keys, cell phone,
holster, $1, 681 in cash, the 9mm pistol he had used to kill
Weston and shoot Cannon, and three magazines of ammunition.
He was still wearing a bulletproof vest. Continuing to
believe that his battle against the “bad people”
was ongoing, [Petitioner] proceeded south on Route 13 to
Salisbury, Maryland, shooting at several people and vehicles
along the way. In his shooting spree he narrowly missed
numerous innocent bystanders, but did seriously injure
Anthony White and Marsha Hankerson.
After [Petitioner] arrived in Salisbury, he went to the home
of Tobias Cannon. He took a pit bull that belonged to Cannon,
but shot his two other dogs, believing that they were demons.
When the dog ran into the street, a SUV stopped to avoid
hitting it. [Petitioner] took this as a sign that the driver
of the SUV had come to aid him in his war against the demons.
He asked the driver, Davondale Peters, for a ride and got in
the vehicle with the dog. When Peters failed to follow all of
[Petitioner's] rambling directions and started to drive
slowly, [Petitioner] became suspicious. Thinking Peters also
was associated with the demons he believed he was fighting,
[Petitioner] jumped out of the SUV and ran around to the
driver's side. He said: “No, you hold up
motherfucker”; and then fired his gun several times
into the SUV. Peters was mortally wounded, but was able to
drive away. He drove over a curb, a mailbox, and through a
fence, with the vehicle coming to rest against a house.
Peters died at the scene.
After shooting Peters, [Petitioner] approached a white van
that had stopped at the same intersection. Carla Green was
driving the van with her daughter in the car seat behind her.
[Petitioner] threw open the door and said: “This is a
carjacking, bitch.” Fearing for her daughter, Green
slammed the door shut and stomped on the accelerator. As she
drove away, [Petitioner] shot at her several times, barely
missing the child safety seat, but hitting Green three times
and rendering her a paraplegic. [Petitioner] then turned on
Natalie Reddick, who had witnessed both of the prior
shootings. [Petitioner] chased after her, but had run out of
ammunition. Reddick retreated to her mother's house and
refused to let [Petitioner] in. [Petitioner] then proceeded
from house to house, banging on doors. As he did so, he
spotted Sabrina Gilmore and her grandniece, who were also
able to reach the safety of Gilmore's parents' house
before [Petitioner] could descend upon them.
[Petitioner] then broke into the home of an elderly couple,
Mary and Watson Dutton. He told them that someone was after
him, and he needed a car to escape. Mr. Dutton refused to
give [Petitioner] a car. [Petitioner] then demanded money
from Mrs. Dutton, who was crying. [Petitioner] pushed her to
the floor with both hands. He then threw some glass items
from the table and shelves, but after Mr. Dutton hit him with
a broom, [Petitioner] left.
Deputies from the Wicomico County Sheriff's Office
arrived on the scene. [Petitioner] saw the officers and hid
behind parked cars. Reddick came out of her mother's
house, shouted to the officers, and pointed at [Petitioner].
When the deputies shouted: “Police! Stop!, ”
[Petitioner] fled. [Petitioner] was captured after a short
chase. When he was taken into custody, the officers noted
that [Petitioner] was wearing body armor and had in his
possession a 9 mm handgun, a holster, three magazines, $1,
681 in cash, a cell phone, and keys.
Norman v. State, 976 A.2d 843, 848-53 (Del. 2009).
2007, a Delaware Superior Court jury convicted Petitioner of
one count of first degree murder, two counts of attempted
first degree murder, three counts of wearing body armor
during the commission of a felony, three counts of possession
of a firearm during the commission of a felony, and one count
of felony theft. (D.I. 19 at 1) After a four-day penalty
hearing, the jury recommended a sentence of death. See
State v. Norman, 2007 WL 3105759, at *2 (Del. Super. Ct.
Sept. 28, 2007), rev'd in part, 976 A.2d 843
(Del. 2009). The Superior Court sentenced Petitioner to death
and 145 years in prison. Id. at *16. Petitioner
appealed, and the Delaware Supreme Court affirmed his
convictions but reversed his death penalty and remanded for a
new penalty hearing. See Norman, 976 A.2d at 872.
The State declined to pursue a second penalty hearing, and
the Superior Court sentenced Petitioner to life and 135 years
in prison in July 2009. (D.I. 19 at 2) Petitioner filed a
petition for a writ of certiorari in the United States
Supreme Court, which was denied. See Norman v.
Delaware, 558 U.S. 1015 (2009).
2010, Petitioner filed a pro se motion for
post-conviction relief pursuant to Delaware Superior Court
Criminal Rule 61 (“Rule 61 motion”). (D.I. 19 at
2) The Superior Court granted Petitioner's motion for the
appointment of counsel, and the appointed counsel was
provided an opportunity to file a new Rule 61 motion. After
several months of discord between Petitioner and counsel, the
Superior Court held two hearings. The Superior Court declined
to appoint new counsel, but informed Petitioner that he could
supplement counsel's amended Rule 61 motion with issues
he wished the court to consider. Id.
November 2011, both Petitioner and counsel filed amended Rule
61 motions. (D.I. 19 at 2) After considering the motions, the
State's reply, trial counsel's Rule 61 affidavit, and
Petitioner's additional filings, the Superior Court
denied the Rule 61 motions on March 6, 2013. See State v.
Norman, 2013 WL 1090944 (Del. Super. Ct. Mar. 6, 2013).
Petitioner and his counsel filed notices of appeal, and
Petitioner moved for the appointment of new counsel on appeal
or, in the alternative, to proceed pro se on appeal.
(D.I. 19 at 3) The Delaware Supreme Court determined there
were insufficient reasons to appoint new counsel, but granted
Petitioner's request to proceed pro se.
Id. On December 17, 2013, the Delaware Supreme Court
affirmed the Superior Court's denial of the Rule 61
motions. See Norman v. State, 2013 WL 6710794 (Del.
Dec. 17, 2013).
The Antiterrorism and Effective Death Penalty Act of
enacted the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) “to reduce delays in the
execution of state and federal criminal sentences . . . and
to further the principles of comity, finality, and
federalism.” Woodford v. Garceau, 538 U.S.
202, 206 (2003) (internal citations and quotation marks
omitted). Pursuant to AEDPA, a federal court may consider a
habeas petition filed by a state prisoner 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). AEDPA imposes procedural requirements and
standards for analyzing the merits of a habeas petition in
order to “prevent federal habeas ‘retrials'
and to ensure that state-court convictions are given effect
to the extent possible under law.” Bell v.
Cone, 535 U.S. 685, 693 (2002); see also
Woodford, 538 U.S. at 206.
Exhaustion and Procedural Default
exceptional circumstances, a federal court cannot grant
habeas relief unless the petitioner has exhausted all means
of available relief under state law. See 28 U.S.C.
§ 2254(b); O'Sullivan v. Boerckel, 526 U.S.
838, 842-44 (1999). AEDPA states, in pertinent part:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that -
(A) the applicant has exhausted the remedies available in the
courts of the State; or
(B)(i) there is an absence of available State corrective
(ii) circumstances exist that render such process ineffective
to protect the rights of the applicant.
28 U.S.C. § 2254(b)(1).
exhaustion requirement is based on principles of comity,
requiring a petitioner to give “state courts one full
opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate
review process.” O'Sullivan, 526 U.S. at
844-45; Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir.
2000). A petitioner satisfies the exhaustion requirement by
demonstrating that the habeas claims were “fairly
presented” to the state's highest court, either on
direct appeal or in a post-conviction proceeding. See
Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997);
Coverdale v. Snyder, 2000 WL 1897290, at *2 (D. Del.
Dec. 22, 2000). “Fair presentation of a claim means
that the petitioner must present a federal claim's
factual and legal substance to the state courts in a manner
that puts them on notice that a federal claim is being
asserted.” Holloway v. Horn, 355 F.3d 707, 714
(3d Cir. 2004).
petitioner's failure to exhaust state remedies will be
excused if state procedural rules preclude him from seeking
further relief in state courts. See Lines v.
Larkins, 208 F.3d 153, 160 (3d Cir. 2000); Teague v.
Lane, 489 U.S. 288, 297-98 (1989). Although technically
exhausted, such claims are nonetheless procedurally
defaulted. See Lines, 208 F.3d at 160; Coleman
v. Thompson, 501 U.S. 722, 750-51 (1991). Similarly, if
a petitioner presents a habeas claim to the state's
highest court, but that court “clearly and
expressly” refuses to review the merits of the claim
due to an independent and adequate state procedural rule, the
claim is exhausted but procedurally defaulted. See
Coleman, 501 U.S. at 750; Harris v. Reed, 489
U.S. 255, 260-64 (1989).
courts may not consider the merits of procedurally defaulted
claims unless the petitioner demonstrates either cause for
the procedural default and actual prejudice resulting
therefrom, or that a fundamental miscarriage of justice will
result if the court does not review the claims. See
McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999);
Coleman, 501 U.S. at 750-51. To demonstrate cause
for a procedural default, a petitioner must show that
“some objective factor external to the defense impeded
counsel's efforts to comply with the State's
procedural rule.” Murray v. Carrier, 477 U.S.
478, 488 (1986). To demonstrate actual prejudice, a
petitioner must show “that [the errors at trial] worked
to his actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions.”
Id. at 494.
a federal court may excuse a procedural default if the
petitioner demonstrates that failure to review the claim will
result in a fundamental miscarriage of justice. See
Edwards v. Carpenter, 529 U.S. 446, 451 (2000);
Wenger v. Frank, 266 F.3d 218, 224 (3d Cir. 2001). A
petitioner demonstrates a miscarriage of justice by showing a
“constitutional violation has probably resulted in the
conviction of one who is actually innocent.”
Murray, 477 U.S. at 496. Actual innocence means
factual innocence, not legal insufficiency,  and is
established if no reasonable juror would have voted to find
the petitioner guilty beyond a reasonable doubt. See
Sweger v. Chesney, 294 F.3d 506, 522-24 (3d Cir. 2002).
A petitioner demonstrates actual innocence by asserting
“new reliable evidence - whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence - that was not presented at trial,
” showing that no reasonable juror would have found the
petitioner guilty beyond a reasonable doubt. See Hubbard
v. Pinchak, 378 F.3d 333, 339-40 (3d Cir. 2004).
timely-filed habeas Petition asserts the following five
grounds for relief:(1) defense counsel provided ineffective
assistance; (2) appellate counsel provided ineffective
assistance; (3) the lower courts committed plain error and
denied Petitioner his rights to a fair trial under the Sixth
and Fourteenth Amendments; (4) 11 Del. Code Ann. §
401(c) is unconstitutionally vague and violates the due
process clause of the Fourteenth Amendment; and (5) the
cumulative impact of errors committed by the State denied
Petitioner his rights under the Sixth and Fourteenth
Amendments (prosecutorial misconduct).
Claim One: Ineffective Assistance of Defense Counsel
Claim One, Petitioner asserts five specific instances of
defense counsel's purported ineffectiveness. The Delaware
Supreme Court denied Claim One in its entirety for being
meritless. Therefore, Petitioner will only be entitled to
habeas relief for the instant Claim if the Delaware Supreme
Court's decision was either contrary to, or an
unreasonable application of, clearly established federal law.
clearly established Supreme Court precedent governing
ineffective assistance of counsel claims is the two-pronged
standard enunciated by Strickland v. Washington, 466
U.S. 668 (1984) and its progeny. See Wiggins v.
Smith, 539 U.S. 510 (2003). Under the first
Strickland prong, a petitioner must demonstrate that
“counsel's representation fell below an objective
standard of reasonableness, ” with reasonableness being
judged under professional norms prevailing at the time
counsel rendered assistance. Strickland, 466 U.S. at
688. Under the second Strickland prong, a petitioner
must demonstrate there is a reasonable probability that, but
for counsel's error the result would have been different.
See Id. at 694. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome. See id.
order to sustain an ineffective assistance of counsel claim,
a petitioner must make concrete allegations of actual
prejudice and substantiate them or risk summary dismissal.
See Wells v. Petsock, 941 F.2d 253, 259-260 (3d Cir.
1991). Although not insurmountable, the Strickland
standard is highly demanding and leads to a “strong
presumption that the representation was professionally
reasonable.” Strickland, 466 U.S. at 689.
a state court's decision regarding an ineffective
assistance of counsel claim is owed “double
deference” when reviewed under § 2254(d)(1),
[t]he standards created by Strickland and §
2254(d) are both “highly deferential, ” and when
the two apply in tandem, review is doubly so. The
Strickland standard is a general one, so the range
of reasonable applications is substantial. Federal habeas
courts must guard against the danger of equating
unreasonableness under Strickland with
unreasonableness under § 2254(d). When
§ 2254(d) applies, the question is not whether
counsel's actions were reasonable. The question is
whether there is any reasonable argument that counsel
satisfied Strickland's deferential
Harrington v. Richter, 562 U.S. 86, 104-05 (2011)
(emphasis added). When assessing the reasonableness of
counsel's performance under Strickland, there
“is a strong presumption that counsel's attention
to certain issues to the exclusion of others reflects trial
tactics rather than sheer neglect, ” and
“Strickland  calls for an inquiry into the
objective reasonableness of counsel's performance, not
counsel's subjective state of mind.”
Richter, 562 U.S. at 109-10. In turn, “[w]hen
assessing prejudice under Strickland, the question
is “whether it is reasonably likely the result would
have been different” but for counsel's performance,
and the “likelihood of a different result must be
substantial, not just conceivable.” Id. at
111-12. Finally, when viewing a state court's
determination that a Strickland claim lacks merit
through the lens of § 2254(d), federal habeas relief is
precluded “so long as fairminded jurists could disagree
on the correctness of the state court's decision.”
Id. at 101. In other words,
[a]s a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court's
ruling on the claim being presented in federal court was so
lacking in justification that there was an error well
understood and comprehended in ...