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Norfleet v. Ryker

United States District Court, Seventh Circuit

July 11, 2013

MARC NORFLEET, Petitioner,
LEE RYKER, Warden, Respondent.


GARY FEINERMAN, District Judge.

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. ยง 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 , X-XX-XXXX ( 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 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.

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.


I. Procedural Default

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 ...

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