Terry Norris v. Jerry Lester

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0784n.06
No. 10-5842
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
AUG 26, 2013
TERRY JAMAR NORRIS, ) DEBORAH S. HUNT, Clerk
)
Petitioner-Appellant, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
JERRY LESTER, Warden, ) COURT FOR THE WESTERN
) DISTRICT OF TENNESSEE
Respondent-Appellee. )
OPINION
BEFORE: BOGGS and COLE, Circuit Judges; and QUIST, District Judge.*
COLE, Circuit Judge. Terry Jamar Norris appeals the district court’s denial of his habeas
corpus petition, pursuant to 28 U.S.C. § 2254. He argues that he is entitled to a writ of habeas
corpus due to ineffective assistance of trial and appellate counsel. Norris contends that his trial
counsel was ineffective for failing to argue that his confession was obtained pursuant to an illegal
arrest and that his appellate counsel was ineffective for failing to argue that his confession was
obtained after the violation of his constitutional right to a prompt probable-cause determination. We
grant Norris’s petition for a writ of habeas corpus, based on the second claim.
I.
On March 10, 1997, Keith Milem was found shot to death. See State v. Norris, No. W2000-
00707-CCA-R3-CD, 2002 WL 1042184, at *1-3 (Tenn. Ct. Crim. App. May 21, 2002) (direct appeal
*
The Honorable Gordon J. Quist, United States District Judge for the Western District of
Michigan, sitting by designation.
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opinion). The next day, Norris was arrested. Three days later, Norris confessed to shooting Milem.
The events of March 11 13, 1997 form the basis of Norris’s current appeal.
After the shooting, Lakendra Mull, Norris’s female roommate and Keith’s friend, told police
that Norris had picked up his gun from their home prior to the shooting, and later followed her when
she drove Keith to the home of his uncle, Charles Milem. Charles Milem told police that he saw
Keith exiting Mull’s car and heard a gun shot immediately afterward. Based on this information,
Memphis police officers A.J. Christian and Ernie McCommon came to Norris’s mother’s home and
took Norris, handcuffed and in the back of a squad car, to the Memphis Police Department Homicide
Office to be interviewed. The officers did not have a warrant for Norris’s arrest.
There is some conflicting testimony as to what time the officers took Norris. According to
Marcia Daniel, Norris’s mother, the police left with Norris at approximately 5:45 p.m. According
to Norris himself, the police arrived at his house “somewhere around” 7:00 p.m. Norris testified that
he told his appellate counsel that the police arrested him “[b]efore 7 p.m.” See Norris v. State, No.
W2005-01502-CCA-R3-PC, 2006 WL 2069432, at *5-6 (Tenn. Ct. Crim. App. July 26, 2006) (state
habeas appeal opinion).
Officer Christian testified that Norris was not free to leave at the time that he was put into
the squad car, and that at 7:30 p.m. Norris was already “in the homicide office,” where Officer
Christian and Sergeant McCommon conducted a brief “formal interview.” At that interview, Norris
denied any involvement in the murder. Daniel testified, uncontradicted, that the homicide office was
approximately five-and-a-quarter miles from the home. Police records show that Norris called
Daniel from the police station at 8:20 p.m. Finally, Norris was “booked . . . into jail,” which
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included the preparation of an “arrest ticket” by Officer Christian that noted the time of arrest as 8:45
p.m.
Norris was held without further interrogation until the afternoon of March 13. He was
advised of his rights and signed an Advice of Rights form at 4:12 p.m. He did not make a statement
at that time, instead asking to talk to his mother. He called her at 6:52 p.m. At 7:20 p.m., he began
to give his statement to the police, admitting to shooting Milem. He signed the statement at 8:20
p.m. The following morning, Norris was brought before a magistrate for a probable-cause
determination.
At trial, Norris’s attorney moved to suppress Norris’s confession on two grounds not at issue
in this appeal. The Tennessee trial court held a hearing, denied the motion, and admitted the
confession. A jury convicted Norris of second-degree murder in June 1999, and he was sentenced
to twenty-one years of imprisonment.
After the trial, Norris’s new attorney who would also be his appellate counsel moved for
a new trial. At a hearing on the motion, he argued that Norris’s confession should have been
suppressed because: (1) it was the fruit of an illegal arrest under Brown v. Illinois, 422 U.S. 590
(1975) (holding that a confession “obtained by exploitation of an illegal arrest” is not admissible);
and (2) Norris was held for investigative purposes prior to his confession. At the state post-
conviction evidentiary hearing, when appellate counsel was asked “if he thought the amount of time
the petitioner was in custody prior to giving his confession was a valid issue to pursue . . . [he]
answered that he ‘apparently’ did not because he did not raise it on appeal.” Norris, 2006 WL
2069432, at *6. The possibility that Norris had been held for more than 48 hours was only
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perfunctorily raised by his counsel. Instead, counsel “focused” on the lack of probable cause for the
arrest. See id. The trial court denied the motion, finding that police had “reasonable suspicion to
bring [Norris] in,” and that less than 48 hours passed between Norris’s arrest and confession.
Norris appealed directly to the Tennessee Court of Criminal Appeals (TCCA). He claimed,
among other things, that he received ineffective assistance of counsel at trial because his trial counsel
did not raise the Brown issue before trial. See State v. Norris, 2002 WL 1042184 at *7-9. His
appellate counsel again did not attempt to demonstrate that Norris was in custody for more than 48
hours. The TCCA found that Norris was under arrest for less than 48 hours at the time of his
confession, see id. at *9 (Norris “was arrested at 8:45 p.m. on March 11 [and] confessed to the crime
at 8:20 p.m. on March 13 . . . . [H]e was not held for more than forty-eight hours prior to his
confession.”), and, in any case, rejected the ineffective-assistance claim based on Brown because “as
a matter of law[,] the officers had probable cause to arrest [Norris],” id. at *10.
In March 2003, Norris filed a pro se petition (later amended and supplemented by counsel)
in the state trial court for post-conviction relief. He alleged that his appellate counsel was ineffective
for failing to show, both during the motion for new trial and on direct appeal, that Norris’s
confession should have been suppressed under County of Riverside v. McLaughlin, 500 U.S. 44
(1991), because it occurred more than 48 hours after his warrantless arrest and there was no
intervening probable-cause determination. See Norris v. State, 2006 WL 2069432, at *8.
The state post-conviction court held an evidentiary hearing to determine how long Norris was
in custody before he gave his confession:
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The petitioner testified that he told appellate counsel that he was arrested at his
mother’s house on March 11, 1997, “[b]efore 7 p .m.” and that more than forty-eight
hours passed before he gave his statement to police on March 13, 1997. He
acknowledged that the advice of rights form showed that he was given the form at
4:05 p.m. and that he signed it at 4:12 p.m. on March 13, but said he did not put the
time on it and could not recall exactly what time he signed it, only remembering “[it]
was after the evening meal in the jail.” The petitioner also acknowledged signing his
police statement at 8:20 p.m. and said that he actually gave the statement verbally
before this time.
Norris v. State, 2006 WL 2069432, at *5-6. The court concluded that Norris had been in custody
for less than 48 hours at the time he gave his confession and therefore found Norris’s ineffective-
assistance claim to be without merit. The TCCA affirmed for the same reason on appeal. Id. at 8-9.
On December 10, 2007, Norris filed a pro se habeas corpus petition under 28 U.S.C. § 2254
in the United States District Court for the Western District of Tennessee. Norris contended that his
trial counsel was ineffective because (1) he did not seek to suppress Norris’s confession due to lack
of probable cause for Norris’s arrest under Brown; and (2) he declined to pursue a self-defense theory
per Norris’s wishes. Norris claimed his appellate counsel was ineffective because (1) he failed to
effectively argue that Norris’s confession should be suppressed because he gave it after being held
for more than 48 hours without a probable-cause determination, in violation of the 48-hour rule in
McLaughlin; and (2) he failed to challenge a certain jury instruction on appeal.
The district court found that all of these claims lacked merit and denied a certificate of
appealability (COA). Regarding Norris’s McLaughlin claim, the district court said “Norris . . .
cannot overcome his failure to demonstrate that he was actually in custody more than forty-eight
hours before giving his confession.”
We subsequently granted Norris a COA on two issues:
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(1) whether his trial counsel was ineffective for failing to challenge Norris’s
confession as unconstitutional under Brown, and
(2) whether his appellate counsel was ineffective for inadequately presenting a
challenge to Norris’s confession based on McLaughlin.
II.
We review the district court’s factual findings for clear error and its legal conclusions de
novo. Smith v. Hofbauer, 312 F.3d 809, 813 (6th Cir. 2002). To the extent that Norris’s ineffective-
assistance-of-counsel claims have been adjudicated on the merits in state court, AEDPA deference
applies:
[The writ] shall not be granted with respect to any claim that was adjudicated on the
merits in State court proceedings 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, as
determined by the Supreme Court of the United States; 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.
28 U.S.C. § 2254(d). The phrase “as determined by the Supreme Court” means that the law must
be clearly established by a Supreme Court holding, not mere dictum, and cannot be established
merely by a holding of this court (or any other circuit court). See Carey v. Musladin, 549 U.S. 70,
74-76 (2006) (finding state court did not contradict clearly established federal law though it clearly
contradicted circuit precedent interpreting two Supreme Court cases). “[A] determination of a
factual issue made by a State court shall be presumed to be correct” and can be rebutted only by
“clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
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The Sixth Amendment grants Norris a right to effective trial counsel. See Strickland v.
Washington, 466 U.S. 668, 685-86 (1984). To prevail on a claim of ineffective assistance of counsel,
Norris must demonstrate both deficiency and prejudice. He must show that: (1) his counsel’s
performance fell below an objective standard of reasonableness under prevailing professional norms,
see id. at 688; and (2) there is a reasonable probability that, but for his counsel’s unprofessional
errors, the result of the proceeding would have been different, see id. at 694. The same standard
applies to “assistance of counsel for appeals of right,” Mahdi v. Bagley, 522 F.3d 631, 636 (6th Cir.
2008), such as Norris’s direct appeal to the TCCA.
AEDPA deference applies to both prongs of Norris’s Strickland claims because the state
court resolved both deficiency and prejudice on the merits. See Foster v. Wolfenbarger, 687 F.3d
702, 709 (6th Cir. 2012) (“[W]here the state court ruled on one prong of the Strickland test, but not
the other, [this court] appl[ies] a de novo standard of review to the prong that the state court did not
consider.”). The state courts’ decisions regarding the effectiveness of both appellate and trial
counsel hinged on the TCCA determinations that the McLaughlin and Brown challenges lacked
merit. This implicitly resolves both the deficiency and prejudice prongs, since (1) it is not
unreasonable to fail to raise a challenge that lacks merit; and (2) if the challenge lacks merit, then
raising it would not provide a reasonable probability of a different outcome. Accordingly, we apply
AEDPA deference to both prongs of each challenge.
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A.
Norris argues that trial counsel was ineffective at the suppression hearing due to his failure
to raise a Brown objection to Norris’s arrest. The CCA held that Norris did not have a viable Brown
objection, and therefore did not have a viable ineffective-assistance claim:
In this case, our review of the circumstances surrounding the initial seizure of the
Defendant yields a different result [than in a case where no probable cause was
found]. The testimony of Sergeant A.J. Christian and Lieutenant Ernie K.
McCommon at the hearing on the motion to suppress the Defendant's statement and
the testimony of Captain Charles E. Logan at the motion for new trial indicate that
the officers had probable cause at the time of the Defendant's initial seizure for
believing that the Defendant killed Keith Milem. The police were aware immediately
after the crime that the victim had died from multiple gunshot wounds. Lakendra
Lavonne Mull and Charles Edward Milem provided statements to the police prior to
the initial seizure of the Defendant on March 11, 1997 which placed the Defendant,
armed with a handgun, at the scene of the crime when it occurred. These statements
were consistent with trial testimony by both Mull and Milem. It can be reasonably
inferred from Mull's statement that the Defendant, who was jealous about a possible
relationship between the victim and the Defendant's girlfriend, followed Mull and the
victim to the scene of the crime. Based upon these facts and circumstances and the
trial court's findings of fact, we conclude as a matter of law that the officers had
probable cause to arrest the Defendant. Because the police officers had probable
cause to take the Defendant into custody by arrest on March 11, 1997, it is
unnecessary for us to conduct a “fruit of the poisonous tree” analysis.
State v. Norris, 2002 WL 1042184, at *10. Norris now contends that the CCA’s finding that there
was probable cause for his arrest is contrary to clearly established federal law. We disagree.
In Brown v. Illinois, the Supreme Court held that inculpatory statements that result from an
illegal arrest in violation of the Fourth Amendment should be analyzed under the “fruit of the
poisonous tree” doctrine and explained the factors to be considered in deciding whether to suppress
the statements. 422 U.S. 590, 602-04 (1975). Richard Brown was arrested without a warrant or
probable cause. After being given the full Miranda warnings, he made two inculpatory statements.
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The Court, under a “fruit of the poisonous tree” analysis, held that Brown’s statements were
inadmissible because they were “obtained by exploitation of the illegality of his arrest.” Id. at 600.
No single fact was dispositive in Brown, see id. at 603, but the Court considered the
“temporal proximity of the arrest and the [statements], the presence of intervening circumstances,
and, particularly, the purpose and flagrancy of the official misconduct,” placing the burden of proof
of admissibility on the government. Id. at 604. That Brown’s first inculpatory statement came less
than two hours after the illegal arrest with no significant intervening events weighed in favor of
suppression. Id. But the Court seemed to place most emphasis on the purpose and intent behind the
violation, finding the arrest to be “investigatory” in “both [] design and [] execution,” as evidenced
by the detectives’ admissions that they arrested Brown “‘for investigation’ or ‘for questioning.’” Id.
at 605.
Norris argues that the CCA’s determination conflicts with clearly established federal law
because (1) the police admitted they did not have probable cause to arrest Norris; and (2) the police
failed to consider exculpatory evidence at the time of the arrest. Even if the somewhat ambiguous
testimony cited by Norris constitutes an admission that the police believed there was no probable
cause for arrest, it should not affect the court’s probable-cause analysis. See Devenpeck v. Alford,
543 U.S. 146, 153 (2004) (“[A]n arresting officer's state of mind (except for the facts that he knows)
is irrelevant to the existence of probable cause.”). However, Norris’s second point requires deeper
inquiry.
Although the requirement to listen to exculpatory witness accounts is clearly and explicitly
established in the law of this circuit, see Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir. 2000);
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Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir. 2007), it is not as clearly established by the Supreme
Court. Although the Supreme Court has not specified that exculpatory facts must be considered, it
has established the broader requirement that the “facts and circumstances within the arresting
officer’s knowledge are sufficient to warrant a prudent person to conclude that the suspect has
committed . . a crime.” Devenpeck v. Alford, 543 U.S. 146, 151 (2004) (citation omitted).
Devenpeck makes no distinction between inculpatory and exculpatory facts and does not expressly
either require or preclude consideration of exculpatory facts.
Even assuming that Devenpeck clearly establishes that all facts within the arresting officer’s
knowledge, including exculpatory facts, must be considered, the conflicts in testimony identified
by Norris do not demonstrate that the state courts ignored clearly established federal law or relied
on an unreasonable determination of fact in their finding that police had probable cause to arrest
Norris. A defendant’s mere presence at a crime scene, even when combined with vague indications
of motive, is not enough to establish probable cause. See Harris v. Bornhorst, 513 F.3d 503, 516
(6th Cir. 2008) (“Even considered cumulatively, this evidence indicates only that . . . neighbors who
played together every day, once had a squabble; that a purported [unidentified] relative of [the
victim]'s . . . may have said that [the defendant] had once threatened [the victim]; and that [the
defendant] was seen on the day of the murder in an area that he frequented every day.”). However,
in this case Mull’s testimony specified that Norris actually followed her and Milem to the scene of
the crime with a weapon. Following the victim to the scene, shortly before the shooting and with a
gun, is ample probable cause for arrest.
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Norris claims that the difference between Mull’s description of the car in which Norris
followed her (a burgundy Grand Am, see Norris v. States, 2006 WL 2069432, at *1) and other
witnesses’ descriptions of a car leaving the scene after the shooting (“a white box-type Chevy,” State
v. Norris, 2002 WL 1042184 at *3) is so exculpatory as to nullify any probable cause. Norris’s
citation of Logsdon is inapposite: in Logsdon, the detective “deliberately” and “off-handedly”
refused to listen to witnesses at the crime scene, going so far as to tell one eyewitness to “[t]ell it to
the judge.” See 492 F.3d at 342-43. Here, the officers did not cut off the witnesses, but instead
collected the potentially exculpatory information and even testified to it. Norris cites no source for
the notion that a single discrepancy in eyewitness identifications constitutes per se lack of probable
cause under clearly established federal law. See also id. (law enforcement not required to “conduct
quasi-trials as a necessary predicate to the warrantless arrest of suspects”). Cf. Painter v. Robertson,
185 F.3d 557, 571 n. 21 (6th Cir. 1999) (“[W]here a reasonable police officer would conclusively
know that an [suspect’s] behavior is protected by a legally cognizable affirmative defense, that
officer lacks a legal foundation to arrest that [suspect].” (emphasis added)). Although there was a
discrepancy in the descriptions of the car, it is not clearly established under federal law that such a
discrepancy, given the totality of the circumstances, conclusively exonerates Norris.
The TCCA’s determination that there was probable cause for Norris’s arrest, and therefore
no merit in his Brown-based ineffective-assistance claim, was not contrary to clearly established
federal law.
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B.
Norris contends that (1) his appellate counsel was deficient for failing to argue on direct
appeal that Norris’s right to a prompt probable-cause determination was violated under McLaughlin;
and (2) that there is a reasonable probability that Norris would have prevailed on direct appeal had
the McLaughlin issue been raised.
In McLaughlin, the Supreme Court explained the circumstances in which a proper
warrantless arrest can lead to a Fourth Amendment violation if a probable-cause determination is not
held promptly. 500 U.S. at 47. The Court created a burden-shifting standard that sought to balance
the constitutional right to a prompt probable-cause determination with the “reasonable
postponement” and “inevitable” delays that could result from “paperwork and logistical problems,”
especially in jurisdictions where probable-cause determinations are combined with other pretrial
procedures. See id. at 55. If a probable-cause determination occurred within 48 hours of arrest, the
burden is on the arrestee to demonstrate that the probable-cause determination was “delayed
unreasonably.” Id. at 56-57. Delays “for the purpose of gathering additional evidence to justify the
arrest,” as well as delays “for delay’s sake” were given as examples of unreasonable delay. Id. at 56.
However, where more than 48 hours elapsed between arrest and probable-cause determination, the
burden of proof lies with the prosecutor, who must demonstrate “the existence of a bona fide
emergency or other extraordinary circumstance” beyond the ordinary logistics involved in combined
proceedings. Id. at 57.
In State v. Huddleston, 924 S.W.2d 666 (Tenn. 1996), the Tennessee Supreme Court held
that “the exclusionary rule should apply when a police officer fails to bring an arrestee before a
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magistrate [for a probable cause determination] within the time allowed by McLaughlin.”
Huddleston, 924 S.W.2d at 673. The Huddleston court held that the “fruit of the poisonous tree”
analysis should determine whether to suppress statements made during a detention that violates
McLaughlin. Id. at 674 (citations omitted). Where the state courts refer to a “Huddleston violation,”
they are referring by implication to a McLaughlin violation.
Norris’s appellate counsel alerted the court to the existence of McLaughlin on direct appeal,
but did not present a McLaughlin challenge to Norris’s confession. Without citing McLaughlin, the
opening appellate brief argued that Norris’s confession must be suppressed under Huddleston (which
merely applies McLaughlin) and focused primarily on subjective intent as one would for a
McLaughlin claim. In his reply brief, appellate counsel discussed McLaughlin and the 48-hour
presumption directly, but then stated that Norris complained of a Brown violation. Certainly
appellate counsel did not argue that Norris had been held for over 48 hours without a probable cause
determination, nor did he dissect the record to demonstrate this, as would have been necessary to any
McLaughlin challenge.
On direct appeal, the TCCA sua sponte dismissed the possibility of a McLaughlin claim on
the grounds that Norris was held less than 48 hours, State v. Norris, 2002 WL 1042184 at *9, a
conclusion based on an arrest time of 8:45 p.m. on March 11, when Norris was booked into jail, see
id. at *7. At Norris’s post-conviction appeal, the TCCA stood by that arrest time because it
concluded that, even after a post-conviction evidentiary hearing, “there was only conflicting
testimony offered as to when the petitioner was taken into custody.” See Norris v. State, 2006 WL
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2069432 at *9. Thus, the TCCA resolved this ineffective-assistance claim entirely on the merits of
the underlying alleged McLaughlin violation, specifically on the 48-hour calculation.
Treating the 8:45 p.m. booking time as the arrest time was contrary to clearly established
federal law. Even if there is no formal arrest, a person is considered seized for Fourth Amendment
purposes when, under the circumstances, a reasonable person would not believe himself free to
leave. See Michigan v. Chesternut, 486 U.S. 567, 573 (1988). It is undisputed that Norris was
transported in handcuffs from his mother’s home to the police station. Officer Christian testified
that, at the time Norris was put into the squad car, he was “taken into custody” and confirmed that
Norris was not free to leave. Officer McCommon testified that he and Officer Christian went “[t]o
pick [Norris] up at his home and bring him in for a statement.” Under these circumstances, a
reasonable person would not feel free to “decline the officers’ request[].” See Florida v. Bostick, 501
U.S. 429, 436 (1991). Accordingly, Norris was arrested when “taken into custody” by Officers
Christian and McCommon.
However, the TCCA’s conclusion does not rely solely on the 8:45 p.m. arrest time, but also
notes that testimony conflicted as to when Norris was taken into custody. Even resolving all
testimony conflicts in favor of the government, it was an unreasonable determination of fact to find
that Norris was in custody for less than 48 hours at the time he began to confess. Even if we
discount entirely the testimonies of Norris and Daniels favoring an earlier time of arrrest, it is
undisputed that Norris was already at the police station at 7:30 p.m. on March 11 and had begun
talking with Sergeant Christian. To find that Norris was in custody for less than 48 hours before
confessing would require one to believe that Norris was free to go at 7:20 p.m. on March 11, and that
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police took less than ten minutes to tell him he was being taken into custody, handcuff him, place
him in the back of the cruiser, drive him five-and-a-quarter miles, bring him into the police station,
and begin their interview. This is simply implausible. Notwithstanding the conflicts in testimony,
the state court’s determination that Norris was in custody for less than 48 hours prior to confessing
was an unreasonable determination of fact.
Although Norris’s attorney was deficient in failing to focus on the precise length of Norris’s
detention and such an argument had a reasonable probability of persuading the state court that Norris
had been in custody for over 48 hours prior to giving his statement on March 13, that fact alone is
not enough to prove prejudice. Even if the state court had concluded that there were more than 48
hours of detention prior to confession, under Huddleston, Tennessee courts must find that the
confession was “fruit of the poisonous tree” in order to suppress it. 924 S.W.2d at 674-75. The
court would have had to consider four factors: “(1) the presence or absence of Miranda warnings;
(2) the temporal proximity of the arrest and the confession; (3) the presence of intervening
circumstances; and finally, of particular significance, (4) the purpose and flagrancy of the official
misconduct.” See id. Quoting McLaughlin, 500 U.S. at 56, the Huddleston court held that “delay
‘for the purpose of gathering additional evidence to justify the arrest’” supports a finding of
purposeful police misconduct. Id. at 676.
There is evidence in the record suggesting that officers kept Norris detained to gather
additional evidence. Captain Logan testified:
[Logan:] Based on [the statements of Lakendra Mull and Charles Milem] we decided
that [Norris] was a good suspect for this homicide.
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[Norris’s Attorney:] . . . but did you have probable cause to charge him?
[Logan:] Well, after picking him up and getting him in the office and talking to him,
he admitted to it.
....
[Norris’s Attorney:] You had strong suspicions, and you held him to do further
investigation; is that correct?
[Logan:] Yes, we did.
Furthermore, the record contains no alternative explanation for Norris’s prolonged detention. See
McLaughlin, 500 U.S. at 57 (listing examples of appropriate reasons for delay: “transporting arrested
persons from one facility to another, handling late-night bookings . . . , obtaining the presence of an
arresting officer who may be busy processing other suspects or securing the premises of an arrest”).
Since purpose is the most important of the four factors and the burden of proof would have been on
the government instead of Norris, there is a reasonable probability that the confession would have
been suppressed if Norris’s appellate counsel had raised the McLaughlin issue in a reasonably
competent manner and persuaded the court on direct appeal that Norris’s pre-confession detention
was longer than 48 hours.
III.
Accordingly, we grant the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254(d),
unless the Respondent reopens Norris’s appeal within 180 days to allow him to raise the McLaughlin
issue on direct appeal.
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