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Norman v. Pierce

United States District Court, D. Delaware

September 29, 2017


          Allison Lamont Norman. Pro se Petitioner.

          Elizabeth R. McFarlan, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Attorney for Respondents.



         Pending 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 relief requested.

         I. BACKGROUND

         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 along.
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 apologized.
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 world.
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).

         In June 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).

         In June 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.

         In 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).


         A. The Antiterrorism and Effective Death Penalty Act of 1996

         Congress 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.

         B. Exhaustion and Procedural Default

         Absent 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 process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

28 U.S.C. § 2254(b)(1).

         The 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).

         A 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).

         Federal 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.

         Alternatively, 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, [1] 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).


         Petitioner's timely-filed habeas Petition asserts the following five grounds for relief:[2](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).

         A. Claim One: Ineffective Assistance of Defense Counsel

         In 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.

         The 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.

         In 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.

         Notably, a state court's decision regarding an ineffective assistance of counsel claim is owed “double deference” when reviewed under § 2254(d)(1), because

[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 standard.

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 ...

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