        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs March 1, 2016

             TERRY JAMAR NORRIS v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                    No. 97-08293    James C. Beasley, Jr., Judge


                No. W2015-00837-CCA-R3-PC - Filed June 29, 2016


Petitioner, Terry Jamar Norris, appeals the denial and dismissal of his petition for post-
conviction relief, specifically asserting that the post-conviction court incorrectly
dismissed his premature petition with prejudice and that his underlying
McLaughlin/Huddleston issue is meritorious. After a thorough review of the record, we
affirm the judgment of the post-conviction court denying and dismissing the petition for
post-conviction relief.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Terry Jamar Norris, Nashville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Karen Cook, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

I. Background

      This case is procedurally complex. Petitioner was charged and convicted of the
second degree murder of Keith Milem and received a twenty-one-year sentence. State v.
Terry Norris, No. W2000-00707-CCA-R3-CD, 2002 WL 1042184, at *1 (Tenn. Crim.
App. May 21, 2002), perm. app. denied (Tenn. Nov. 4, 2002), reh’g denied (Tenn. Feb.
3, 2003). Prior to trial, defense counsel filed a motion to suppress Petitioner’s
confession, arguing that (1) officers coerced Petitioner’s confession by refusing to give
him his medication until he gave a statement, and (2) Petitioner’s initial refusal to sign a
waiver of rights form effectively invoked his right to counsel during questioning. Id. at
*7. The motion was heard and overruled by the trial court. Id.

        After Petitioner was convicted, he filed a motion for new trial presenting a third
basis for the exclusion of his confession – that his confession was obtained as a result of
an illegal detention, in violation of his Fourth Amendment rights. Id. Petitioner
contended that the delay between the time of his illegal arrest and the judicial
determination of probable cause was unreasonable and that he was detained unlawfully
for the purpose of gathering additional evidence to justify the arrest. Id.

      At the hearing on the motion for new trial, the trial court made specific findings
concerning Petitioner’s claim of an unreasonable delay. The court found:

              With regard to the Huddleston issues[,] . . . again, my recollection is,
       even under the circumstances in the argument, that the 48 hours had not
       expired at the time the officers charged [Petitioner].

              And, again, my recollection of the facts, and the record[ ] will
       obviously speak for [itself], was that he was talked to briefly on the night
       that he first came in. And the next day the officers did some work on the
       case, and then the next day he came in midday or mid afternoon, and they
       talked with him, and he gave a statement, and he was subsequently charged.

             And I don’t find that there [were] any Huddleston violations or any
       Fourth Amendment violations. . . .

              ....

              I think the officers had reasonable suspicion to bring [Petitioner] in
       to question him about the case. I don’t think that there was any ruse on
       their part. . . .

              In my opinion, the officers were doing a good investigative job by
       bringing [Petitioner] in and questioning him. And I don’t find that they
       kept him too long or that they in any way violated his rights. So I find that
       that ground has no basis.

Id. at *9.

       On direct appeal, Petitioner’s counsel pursued two issues: (1) that Petitioner
received ineffective assistance of counsel at trial because counsel failed to file a motion
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to suppress Petitioner’s confession based upon a violation of his Fourth Amendment
rights and (2) that Petitioner received ineffective assistance of counsel at trial because his
counsel argued a theory of defense to the jury that was contrary to Petitioner’s wishes and
testimony. Id. This court affirmed the trial court’s judgment. The court determined that
the officers had probable cause to arrest Petitioner and that Petitioner confessed within
forty-eight hours of his arrest. Id. at *8-10. The court concluded that

       the trial court did not err by determining that the [Petitioner]’s confession
       was not obtained in violation of his Fourth Amendment rights and that it
       therefore was admissible at trial. We thus conclude that the [Petitioner]’s
       trial attorneys were not ineffective for failing to file a motion to suppress
       the [Petitioner]’s statement based on the length of time he was held in
       police custody without a warrant.

Id. at *10. Our supreme court denied Petitioner’s application for permission to appeal,
and a petition to rehear was also denied. Id. at *1.

        Petitioner then filed a petition for post-conviction relief. Terry Jamar Norris v.
State, No. W2005-01502-CCA-R3-PC, 2006 WL 2069432 (Tenn. Crim. App. July 26,
2006), perm. app. denied (Tenn. Dec. 18, 2006). Petitioner alleged that his “appellate
counsel was ineffective for failing to show at [his] motion for new trial hearing that [his
confession] was given more than 48 hours after his arrest in violation of State v.
Huddleston.” Id. at *8. The post-conviction court denied relief, finding that Petitioner
could not claim that he was detained for a time period greater than forty-eight hours when
the delay occurred due to his desire to speak with his mother before making his
statement. Id. at *9. This court affirmed the post-conviction court on appeal. This court
stated:

       Although the petitioner contends that his direct appeal would have turned
       out differently had appellate counsel showed that he was in custody more
       than forty-eight hours at the time he gave his statement to police, he has
       failed to meet his burden of showing that he actually was in custody more
       than forty-eight hours prior to giving his confession[.]

Id. at *9. Thereafter, our supreme court denied Petitioner’s application for permission to
appeal.

       Petitioner next filed a petition for writ of habeas corpus in the United States
District Court in which he argued that he was “entitled to a writ of habeas corpus due to
ineffective assistance of trial and appellate counsel.” Terry Jamar Norris v. Jerry Lester,
Warden, 545 Fed. Appx. 320, 321 (6th Cir. 2013). Petitioner asserted that “trial counsel
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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.” Id. The district court found that Petitioner’s claims
lacked merit and denied Petitioner a certificate of appealability. Id. at 323. With regard
to Petitioner’s claim against appellate counsel, the “McLaughlin/Huddleston” claim, the
district court found that “[Petitioner] . . . cannot overcome his failure to demonstrate that
he was actually in custody more than forty-eight hours before giving his confession.” Id.

        Petitioner nonetheless appealed and was granted a certificate of appealability by
the United States Court of Appeals for the Sixth Circuit. Id. As to Petitioner’s claim
regarding his illegal arrest and trial counsel’s ineffectiveness, the Sixth Circuit concluded
that this court’s prior determination that there was probable cause for Petitioner’s arrest
(and therefore no merit in his illegal arrest ineffective-assistance claim) was not contrary
to clearly established federal law. Id. at 326.

       However, as to Petitioner’s claim regarding the length of his subsequent detention
and appellate counsel’s ineffectiveness, the Sixth Circuit viewed this court’s
determination that Petitioner confessed within forty-eight hours of his arrest as “an
unreasonable determination of [the] fact[s]” even if one were to “resolv[e] all testimony
conflicts in favor of the government.” Id. at 328. Appearing to undertake a factual
analysis of its own, the Sixth Circuit surmised that, because Petitioner was already at the
police station at 7:30 p.m. on March 11, in order to find that he was in custody for less
than forty-eight hours before confessing would require that the “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.” Id. The Sixth Circuit found such scenario to be implausible. Id.

        Having reached this conclusion, the Sixth Circuit considered whether there was
prejudice or, in other words, whether the Tennessee court would have found that the
confession was “fruit of the poisonous tree” and suppressed it. Id. The Sixth Circuit
noted that the burden shifted to the government to show the purpose of the delay in the
probable cause hearing, that some evidence “suggest[ed] that officers kept [Petitioner]
detained to gather additional evidence” and that there was no alternative explanation for
the delay contained in the record. Id. at 328-29. The Sixth Circuit concluded that “there
is a reasonable probability that the confession would have been suppressed if
[Petitioner]’s appellate counsel had raised the McLaughlin issue in a reasonably
competent manner and persuaded the court on direct appeal that [Petitioner]’s pre-
confession detention was longer than 48 hours.” Id. Accordingly, the Sixth Circuit
“grant[ed] the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254(d), unless

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the Respondent reopens [Petitioner]’s appeal within 180 days to allow him to raise the
McLaughlin issue on direct appeal.” Id.

        Following the issuance of the conditional writ, the State reopened Petitioner’s
appeal to allow him to raise the McLaughlin issue. State v. Terry Norris, No. W2000-
00707-CCA-R3-CD, 2014 WL 6482823, at *12 (Tenn. Crim. App. Nov. 18, 2014),
remanded for further consideration (Tenn. Apr. 22, 2015). This court considered whether
Petitioner’s detention violated the holdings of Huddleston and McLaughlin, but it did so
under a plain error review because Petitioner had not raised the issue before or during
trial. Id. at *12-17. This court concluded that Petitioner was not entitled to plain error
relief. Id. at *17. However, our supreme court remanded the case back to this court on
April 22, 2015, with the direction that the issue be considered under plenary, not plain
error, review. State v. Terry Norris, No. W2000-00707-CCA-R3-CD, 2015 WL
5720430, at *1 (Tenn. Crim. App. Sept. 30, 2015). On September 30, 2015, this court
did so and determined that Petitioner had not established that his detention violated the
holdings of Huddleston and McLaughlin. Id. at *1, *11-15. On December 1, 2015,
Petitioner filed an application for permission to appeal to the Tennessee Supreme Court,
which it denied on March 23, 2016.

       Meanwhile, on March 30, 2015, Petitioner had filed another petition for post-
conviction relief. In that petition, Petitioner alleged that his trial counsel were ineffective
for failing to raise the Huddleston/McLaughlin issue pretrial. Petitioner noted in his
petition that his direct appeal was not yet final.

        On April 27, 2015, the post-conviction court dismissed the petition without a
hearing, not specifying whether the dismissal was with or without prejudice. The court’s
first reason for dismissing the petition was that “the matter is still on appeal and cannot
be heard at this time.” The court’s second reason for dismissing the petition was that the
ineffective assistance of counsel claim was litigated in the first direct appeal and also that
this court had decided the Huddleston/McLaughlin issue against Petitioner multiple
times. Petitioner filed a timely notice of appeal.

II. Analysis

       In a post-conviction proceeding, the burden is on the Petitioner to prove his
grounds for relief by clear and convincing evidence. T.C.A. § 40-30-110(f); see
Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).

       Petitioner asserts that the post-conviction court incorrectly dismissed his
premature petition with prejudice and that his underlying McLaughlin/Huddleston issue
is meritorious. We conclude, however, that Petitioner is not entitled to relief.
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        At the time the post-conviction court dismissed the petition on April 27, 2015,
Petitioner’s direct appeal had not concluded. The Tennessee Supreme Court had
remanded the direct appeal case to this court for further consideration on April 22, 2015,
and this court’s opinion pursuant to this remand was not filed until September 30, 2015.
A Petitioner may not file a post-conviction petition until the final judgment of the highest
court has been entered. See T.C.A. § 40-30-102(a). “[A] petition for post-conviction
relief, complaining of the original conviction and sentence, may not be maintained while
a direct appeal of the same conviction and sentence is being prosecuted.” Gibson v.
State, 7 S.W.3d 47, 49 (Tenn. Crim. App. 1998). Because the petition for post-conviction
relief was filed prematurely, the post-conviction court did not err in dismissing it
accordingly. See id. at 50. Pursuant to Gibson, the post-conviction petition was
dismissed on this ground without prejudice, because it was not dismissed for this
particular reason on the merits.

       Although we do not have to address the second reason the trial court dismissed the
petition, we will do so in the event of further review. As to the second basis the post-
conviction court relied upon to summarily dismiss the petition, the post-conviction court
erred. The post-conviction court erroneously dismissed the post-conviction petition on
the basis that Petitioner has previously litigated ineffective assistance of counsel in his
direct appeal. It is correct that raising a claim of ineffective assistance of counsel as an
issue on direct appeal generally bars a petitioner from raising it again on post-conviction
review. Thompson v. State, 958 S.W.2d 156, 161 (Tenn. Crim. App. 1997). There may,
however, be exceptions, such as the one in Thompson when “our supreme court has
deliberately abstained from ruling on whether some of the factual allegations entitle the
petitioner to relief.” Id.

        Actually, Petitioner’s direct appeal of his conviction was reopened by the State
upon the Sixth Circuit Court of Appeals’ judgment granting conditional habeas corpus
relief. State v. Terry Norris, No. W2000-00707-CCA-R3-CD, 2015 WL 5720430 (Tenn.
Crim. App. Sept. 30, 2015) at *11. Thus, the ground of a presentation of ineffective
assistance of counsel in a direct appeal prior to filing a post-conviction petition is not
appropriate to summarily dismiss on the merits Petitioner’s latest post-conviction
petition, which is the subject of the instant appeal.

        However, as to the precise issue (illegal detention prior to obtaining a confession),
which Petitioner asserts trial counsel rendered ineffective assistance of counsel by failing
to raise was in fact raised in his reopened direct appeal and was resolved against him. Id.,
2015 WL 5720430 at *14-15. Accordingly, even if trial counsel in the initial direct
appeal rendered deficient performance by failing to raise the issue, the issue was

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ultimately addressed by plenary review in this court. Petitioner is not entitled to relief in
this appeal.

III. Conclusion

      After a review of the record on appeal, we affirm the judgment of the post-
conviction court denying and dismissing the petition for post-conviction relief.

                                   ____________________________________________
                                   THOMAS T. WOODALL, PRESIDING JUDGE




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