Case: 1:11-cv-00897 Document #: 25 Filed: 07/11/13 Page 1 of 12 PageID #:1582
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
LEE RYKER, Warden,
11 C 897
MEMORANDUM OPINION AND ORDER
Petitioner Marc Norfleet, who is serving a 59-year sentence in Illinois state prison for
first degree murder, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Doc. 2. Norfleet
claims that the warrant pursuant to which the police arrested him and searched his home was
issued without the probable cause required by the Fourth Amendment, that the evidence obtained
as a result of the search should have been suppressed, and that the case against him could not
have been proved beyond a reasonable doubt without the unlawfully obtained evidence. The
habeas petition is denied, and the court declines to issue a certificate of appealability.
Because the court denies Norfleet’s petition on procedural grounds, the facts underlying
his conviction are largely irrelevant to the disposition of this case. The facts as found by the
Appellate Court of Illinois, see People v. Norfleet, 1-06-3510 (Ill. App. May 19, 2009) (Doc. 16-
1 at 1-16), the last state court to consider Norfleet’s case on the merits, are therefore recounted
here only briefly. On December 14, 2001, Norfleet and a man named Adam Schultz drove from
Milwaukee to Chicago. Doc. 16-1 at 2. Norfleet had recently been prosecuted, unsuccessfully,
for a drug crime in Wisconsin state court, and he knew that Schultz had assisted the prosecution
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as a confidential informant. Ibid. On December 16, 2001, Schultz was found dead in a Chicago
alley, having been shot once in the head at close range. Id. at 1-2; Doc. 16-10 at 22. On August
27, 2002, the police obtained and executed a “no-knock” warrant to search Norfleet’s home.
Doc. 16-10 at 18-20. At trial, the prosecution’s theory was that Norfleet hired a hit man named
Michael Johnson to murder Schultz, that Johnson fired the lethal bullet, and that Norfleet was
responsible for the murder on an accountability theory. Doc. 16-1 at 2-3.
Norfleet maintains that the police affidavit filed to support the “no-knock” warrant, Doc.
16-10 at 21-26, contained false statements and was not justified by probable cause, meaning that
the warrant violated the Fourth Amendment and that the ensuing search was unconstitutional.
Doc. 2 at 6-10. Norfleet further maintains that much of the evidence used against him at trial,
including statements by his then-girlfriend Amanda Scripture and Johnson’s nephew Larry
Jones, was obtained as a direct result of the unconstitutional search, and that the evidence was
therefore inadmissible under the “fruits of the poisonous tree” doctrine of Wong Sun v. United
States, 371 U.S. 471 (1963). Doc. 2 at 11-16; see United States v. Ceccolini, 435 U.S. 268, 273-
79 (1978) (discussing the application of Wong Sun to witness testimony). Norfleet made these
arguments to the state trial court in motions to quash his arrest and to suppress evidence. Doc.
16-2 at 38-43, 60-63; Doc. 16-10 at 2-17. The trial court rejected Norfleet’s arguments and
denied the motions. Doc. 16-5 at 37-38; Doc. 16-10 at 108-109.
Between his arraignment in November 2002 and the beginning of his trial in October
2006, Norfleet was represented by five attorneys. Doc. 16-1 at 4-13. In each instance, Norfleet
either discharged the attorney or forced the attorney to withdraw by filing complaints with the
Illinois Attorney Registration and Disciplinary Commission. Id. at 4-7. Norfleet conducted his
trial pro se, and the jury convicted him. Id. at 13.
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On direct appeal, Norfleet was represented by appointed counsel. Doc. 16-1 at 17-80,
137-158 (appellate briefs filed by Norfleet’s lawyer). The lawyer argued that the state trial court
violated Norfleet’s Sixth Amendment right to counsel, id. at 22; because Norfleet does not press
that claim in his habeas petition, its details are irrelevant here. Norfleet himself filed no fewer
than six pro se appellate briefs or motions, which sought to strike his lawyer’s brief, to proceed
pro se, and to raise the Fourth Amendment claim that the trial court rejected. E.g., Doc. 16-2 at
4-10, 17-33, 142-175. The state appellate court denied the pro se motions without addressing the
merits of the Fourth Amendment claim, e.g., Doc. 16-2 at 141; Doc. 16-3 at 1, affirmed
Norfleet’s conviction, Doc. 16-1 at 1-16, and denied his rehearing petition, Doc. 16-2 at 1.
Norfleet’s lawyer then filed a petition for leave to appeal (“PLA”) with the Supreme
Court of Illinois, again advancing Sixth Amendment claims. Doc. 16-3 at 2, 4. Norfleet again
supplemented his lawyer’s submission with a series of pro se filings, which argued that he
should have been allowed to proceed pro se on appeal and that his appointed counsel on appeal
had rendered ineffective assistance. Doc. 16-4 at 1-3 (“Motion for Leave to Proceed Pro-Se and
File Pro-Se Petition for Leave to Appeal”); id. at 6-13 (Norfleet’s pro se PLA); Doc. 16-5 at 88-
89 (Norfleet’s petition for reconsideration). The state supreme court denied each of Norfleet’s
motions, e.g., Doc. 16-6 at 1, 3; Doc. 16-9 at 1; Doc. 16-10 at 1, and also denied the PLA filed
by Norfleet’s lawyer, People v. Norfleet, 919 N.E.2d 361 (Ill. 2009). Norfleet then filed a
petition for a writ of certiorari, which the United States Supreme Court denied. Norfleet v.
Illinois, 558 U.S. 1015 (2009). Norfleet next filed this habeas petition, which the Warden
concedes is timely. Doc. 15 at 8.
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Norfleet argued to both the state trial court and the state appellate court that the warrant
was invalid and therefore that much of the evidence against him should have been suppressed as
the fruits of an illegal search. His habeas petition advances the same claim. The Warden
contends that Norfleet failed to present that claim to the state supreme court, resulting in a
procedural default. The Warden is correct.
“A procedural default occurs where a habeas petitioner has exhausted his state court
remedies without properly asserting his federal claim at each level of state court review.”
Crockett v. Hulick, 542 F.3d 1183, 1192 (7th Cir. 2008) (citation and internal quotation marks
omitted); see also Bland v. Hardy, 672 F.3d 445, 449 (7th Cir. 2012) (“To preserve a question
for federal collateral attack, a person must present the contention to each level of the state
judiciary.”). In O’Sullivan v. Boerckel, 526 U.S. 838 (1999), the Supreme Court held that this
principle requires Illinois state prisoners to fairly present in a PLA to the Supreme Court of
Illinois any claims they wish to press in a federal habeas petition:
Boerckel’s amended federal habeas petition raised three claims that he had
pressed before the Appellate Court of Illinois, but that he had not included in
his petition for leave to appeal to the Illinois Supreme Court. There is no
dispute that this state court remedy—a petition for leave to appeal to the
Illinois Supreme Court—is no longer available to Boerckel; the time for filing
such a petition has long passed. Thus, Boerckel’s failure to present three of
his federal habeas claims to the Illinois Supreme Court in a timely fashion has
resulted in a procedural default of those claims.
Id. at 848 (citation omitted). Citing Boerckel, the Seventh Circuit has articulated the fair
presentment requirement in this way:
If the [habeas] claim comes from the Illinois state courts, the petitioner must
have presented each claim in the habeas petition to the Illinois Appellate
Court and to the Illinois Supreme Court in a petition for discretionary review.
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As part of this requirement, a petitioner must have fairly presented both the
operative facts and legal principles that control each claim to the state
judiciary. A petitioner’s failure to fairly present each habeas claim to the
state’s appellate and supreme court in a timely manner leads to a default of the
claim, thus barring the federal court from reviewing the claim’s merits.
Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010) (citations omitted); see also Mulero v.
Thompson, 668 F.3d 529, 535-36 (7th Cir. 2012) (same). Put somewhat differently, a habeas
petitioner must submit to the state appellate court and state supreme court “both the broad claim
… [and] also the specific arguments and ‘operative facts within that claim.” McNary v. Lemke,
708 F.3d 905, 919 (7th Cir. 2013).
The question here is whether Norfleet fairly presented his Fourth Amendment claim to
the state supreme court. The court assumes for the sake of argument that a habeas petitioner like
Norfleet can meet the fair presentment requirement through pro se filings even where he is
represented by an attorney who does not press the claim at issue, and even where the state court
declines to address the merits of that claim because state procedural rules do not entitle a
counseled prisoner to present additional arguments in pro se filings. The court therefore will
examine whether Norfleet fairly presented his Fourth Amendment claim to the state supreme
court either in his counseled PLA or in his pro se filings.
In the counseled PLA, Norfleet’s attorney limited himself to the same Sixth Amendment
arguments he had pressed before the state appellate court. Doc. 16-3 at 4. The counseled PLA
therefore did not fairly present any Fourth Amendment claim, as Norfleet appears to recognize.
Doc. 19 at 3 (“Petitioner avers that for purposes of procedural bar analysis, what is germane are
the petitions he filed, as opposed to any petitions filed by counsel, the latter of which this Court
should ignore for purposes of this analysis.”).
Norfleet’s pro se motion to proceed pro se in the state supreme court also says nothing
about the Fourth Amendment. Doc. 16-4 at 1-3. Nor does his pro se PLA, which argues instead
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that “[t]he Question for the IL.S.Ct. is whether the Appellate Court err[ed] in denying the SIX
petitions to proceed pro-se?” Doc. 16-4 at 6. Norfleet’s “Petition for Reconsideration of Motion
to Proceed Pro-Se & File Pro-Se Petition for Leave to Appeal” also fails to mention the Fourth
Amendment; instead, Norfleet argued—probably incorrectly, see Martinez v. Court of Appeal of
Cal., Fourth App. Dist., 528 U.S. 152, 154 (2000)—that he had a constitutional right to proceed
pro se on direct appeal in the state appellate court. Doc. 16-5 at 88. Indeed, Norfleet’s federal
habeas petition says not that he presented his Fourth Amendment argument to the state supreme
court, but merely that he “wished to pursue [in the state supreme court] the arguments presented
in this [habeas] petition.” Doc. 2 at 4 (emphasis added). And in the section of the habeas
petition titled “Norfleet used every means at his disposal to exhaust his state remedies on this
issue,” Norfleet refers only to the state trial and appellate court proceedings; he makes no
mention of the state supreme court. Id. at 16-18.
In his reply brief before this court, Norfleet contends that his pro se filings with the state
supreme court did fairly present his Fourth Amendment claim. Norfleet “denies that the only
issue raised in his pro se petition to the Illinois Supreme Court was denial of the right to
represent himself on appeal,” and “notes that implicated by, and incorporated in, his petitions to
the Illinois Supreme Court are the [Fourth Amendment] issues raised herein.” Doc. 19 at 3-4.
Specifically, Norfleet points to this passage in one of his pro se filings:
The problem with State Appellate Counsel Defender’s appellant alleged
appeals brief(s) is as the Appellate Court states in it[s] final decision, that
“The Defendant does NOT challenge the sufficiency of the evidence of his
Id. at 10 (quoting Doc. 16-4 at 2). This refers to an insufficient evidence claim; no mention is
made of any Fourth Amendment claim. That said, Norfleet did not fairly present even the
insufficient evidence claim to the state supreme court, for as the above-quoted passage makes
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clear, the reference to the “sufficiency of the evidence” came in the context of Norfleet’s claim
that his appellate attorney had been ineffective in the state appellate court by failing to challenge
the sufficiency of the evidence. Doc. 16-4 at 2.
A claim that one’s attorney was ineffective in failing to press a given challenge is distinct
from a claim asserting the underlying challenge itself; Norfleet’s pro se PLA raised the former
claim, that his appellate attorney was ineffective for failing to raise the sufficiency challenge, but
not the latter, the sufficiency challenge itself. See Lewis v. Sternes, 390 F.3d 1019, 1026 (7th
Cir. 2004) (“[A]n assertion that one’s counsel was ineffective for failing to pursue particular
constitutional issues is a claim separate and independent of those issues. … [T]he fact that the
ineffectiveness claim was raised at some point in state court does not mean that the state court
was given the opportunity to address the underlying issue that the attorney in question neglected
to raise.”). Moreover, even if Norfleet’s pro se PLA had fairly presented his challenge to the
sufficiency of the evidence, the insufficiency claim in his habeas petition depends entirely on the
defaulted Fourth Amendment claim; the evidence was insufficient, Norfleet argues, because the
fruits of the supposedly unlawful warrant should have been suppressed. Doc. 2 at 18-19. Thus,
even putting aside procedural default, Norfleet’s insufficient evidence claim fails on the merits
because he defaulted the Fourth Amendment claim on which the insufficiency claim was
Norfleet’s contention that he fairly presented the Fourth Amendment claim by
“incorporating by reference” his lower court filings, which did contain a Fourth Amendment
claim, also fails. Norfleet says that his pro se filings “went on to reference on several occasions
the petitions and briefs he had filed in the court of appeals and the issues contained therein,
which included, inter alia, the fourth amendment issues he now raises before this Court.” Doc.
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19 at 10. But the mere reference in one brief to an argument made in a brief filed in a lower
court does not fairly present the claim contained in the lower court brief. See Baldwin v. Reese,
541 U.S. 27, 32 (2004) (“a state prisoner does not ‘fairly present’ a claim to a state court if that
court must read beyond a petition or a brief … that does not alert it to the presence of a federal
claim in order to find material … that does so”); Pinkins v. Buss, 215 F. App’x 535, 540 (7th Cir.
2007) (noting that a criminal defendant’s reference to an earlier brief does not, without more,
fairly present the arguments contained in that earlier brief); Lockheart v. Hulick, 443 F.3d 927,
929 (7th Cir. 2006) (holding that fair presentment “requirement is not met if a judge must go
outside the four corners of the document in order to understand the contention’s nature and
basis”). In Lockheart, the Seventh Circuit held that the petitioner had procedurally defaulted his
habeas claim under circumstances materially identical to Norfleet’s:
[Lockheart’s] petition for leave to appeal to the Supreme Court of Illinois did
not present a judicial-bias argument. Instead he asked the Supreme Court to
read other documents, such as his appellate brief and his “Petition for Leave to
Appeal as a Matter of Right and in the Alternative” that he had filed in
support of an earlier request for review. The state judges were under no
obligation to track down and peruse those documents.
443 F.3d at 929.
For these reasons, Norfleet failed to fairly present his Fourth Amendment claim to the
state supreme court, thereby procedurally defaulting it.
Cause and Prejudice
“In all cases in which a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas review of the
claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as
a result of the alleged violation of federal law, or demonstrate that failure to consider the claims
will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750
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(1991); see also Kaczmarek v. Rednour, 627 F.3d 586, 591 (7th Cir. 2010) (same). These two
exceptions also are available to a habeas petitioner who procedurally defaulted a claim under
Boerckel by failing to fairly present it to each level of the state judiciary. See Smith, 598 F.3d at
382. “Cause for a default is ordinarily established by showing that some type of external
impediment prevented the petitioner from presenting his claim. Prejudice is established by
showing that the violation of the petitioner’s federal rights worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.” Thompkins v.
Pfister, 698 F.3d 976, 987 (7th Cir. 2012) (citations and internal quotation marks omitted). “The
fundamental miscarriage of justice exception requires ‘the habeas petitioner to show that a
constitutional violation has probably resulted in the conviction of one who is actually innocent.
To establish the requisite probability, the petitioner must show that it is more likely than not that
no reasonable juror would have convicted him in light of the new evidence.’” Smith, 598 F.3d at
387-88 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
Norfleet does not cite the fundamental miscarriage of justice exception, but he does
invoke the cause-and-prejudice exception, arguing: “A sixth amendment claim for ineffective
assistance of counsel, which Norfleet has thoroughly developed in this case, can constitute good
cause for what would otherwise constitut[e] a procedural default by a petitioner.” Doc. 19 at 11.
Because Norfleet’s procedural default occurred when he failed to present his Fourth Amendment
claim to the state supreme court, he must mean to argue that his appellate attorney was
ineffective for failing to include a Fourth Amendment claim in the counseled PLA. This
argument fails because ineffectiveness of counsel in a discretionary appeal before the state
supreme court does not qualify as “cause” sufficient to excuse a procedural default.
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There is no constitutional right to effective assistance of counsel beyond the criminal trial
and the initial appeal of right—that is, “there is no constitutional right to any assistance of
counsel in seeking discretionary, third-tier review, and shortcomings of counsel at that stage
therefore cannot violate the sixth amendment.” Owens v. Boyd, 235 F.3d 356, 359 (7th Cir.
2000) (citation omitted); see also Ross v. Moffitt, 417 U.S. 600 (1974). And attorney errors that
do not amount to ineffective assistance under the Sixth Amendment cannot satisfy the “cause”
requirement. See Brown v. Watters, 599 F.3d 602, 609 (7th Cir. 2010) (“When preserved,
meritorious claims of ineffective assistance can excuse default. A constitutional right to
effective assistance must be the predicate to any such claim.”) (citation omitted). It follows that
ineffective assistance in a counseled PLA does not provide “cause” for purposes of the cause-
and-prejudice analysis. See Perez v. Pierce, 36 F. App’x 854, 858 (7th Cir. 2002) (holding that
because “a criminal defendant does not have a federal constitutional right to counsel to pursue
discretionary state appeals,” the habeas petitioner “cannot use ineffective assistance of appellate
counsel [at the PLA stage] as the ‘cause’ requisite to excuse his procedural default”) (citations
omitted); Anderson v. Cowan, 227 F.3d 893, 901 (7th Cir. 2000) (same).
That would be the end of the cause-and-prejudice analysis, but for the fact that the
Supreme Court last year “qualifie[d] Coleman by recognizing a narrow exception: Inadequate
assistance of counsel at initial-review collateral proceedings [on a claim of ineffective assistance
of counsel at trial] may establish cause for a prisoner’s procedural default of [such] a claim.”
Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012); see also Trevino v. Thaler, 133 S. Ct. 1911,
1921 (2013) (holding that “where, as [in Texas], state procedural framework, by reason of its
design and operation, makes it highly unlikely in a typical case that a defendant will have a
meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal,
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[the] holding in Martinez applies”). This narrow exception does not help Norfleet for two
reasons: the defaulted claim here alleges a Fourth Amendment violation, not ineffective
assistance at trial, and the asserted “cause” is ineffective assistance in a PLA to the state supreme
court, not at an initial-review collateral proceeding. Cf. Serio v. Pfister, 2013 WL 593824, at *6
(N.D. Ill. Feb. 14, 2013) (declining to extend Martinez beyond its explicit scope). Perhaps
Martinez and Trevino presage further decoupling of the cause-and-prejudice analysis from the
scope of the Sixth Amendment; perhaps not. See Trevino, 133 S. Ct. at 1922-23 (Roberts, C.J.,
dissenting) (quoting Martinez, 132 S. Ct. at 1320). The fact remains that those decisions stand as
only a narrow qualification of the general rule of Coleman. Because this case does not fall
within that exception, this court is bound to apply Coleman. See Grayson v. Schuler, 666 F.3d
450, 452-53 (7th Cir. 2012) (holding that the lower courts must apply Supreme Court precedents
to cases that fall within their scope unless and until those precedents are explicitly overruled by
the Supreme Court itself).
For these reasons, Norfleet has not established cause for his procedural default. This
result makes it unnecessary to consider whether Norfleet could have satisfied the prejudice prong
of the cause-and-prejudice analysis.
Because Norfleet procedurally defaulted the Fourth Amendment and insufficient
evidence claims pressed in his habeas petition, and because he has failed to show that the default
should be excused, his petition is denied. Rule 11(a) of the Rules Governing Section 2254 Cases
states that “[t]he district court must issue or deny a certificate of appealability [(‘COA’)] when it
enters a final order adverse to the applicant.” See Lavin v. Rednour, 641 F.3d 830, 832 (7th Cir.
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2011). “A certificate of appealability may issue … only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
The Supreme Court has described the standard applicable to cases, like this one, in which
the petition is denied on procedural grounds:
When the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim, a COA should
issue when the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling. … Where a plain
procedural bar is present and the district court is correct to invoke it to dispose
of the case, a reasonable jurist could not conclude either that the district court
erred in dismissing the petition or that the petitioner should be allowed to
proceed further. In such a circumstance, no appeal would be warranted.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Such a circumstance is present here. The court’s
determination that Norfleet procedurally defaulted his Fourth Amendment claim (and thus the
sufficiency claim that depends on the success of the Fourth Amendment claim) relies on the
contents of Norfleet’s filings with the state supreme court and on settled precedent requiring that
a petitioner fairly present his claim to each level of the state judiciary. The application of that
settled law to Norfleet’s case does not present difficult or close questions, and so the petition
does not meet the standard for granting a COA. The court therefore denies a COA.
July 11, 2013
United States District Judge