Richard Morens v. Michael Meisner
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Diane P. Wood, Chief Judge; William J. Bauer, Circuit Judge and Joel M. Flaum, Circuit Judge. [6858026-1]  [16-3831]
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 7, 2017
Decided August 1, 2017
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
Appeal from the United States District
Court for the Eastern District of Wisconsin.
William C. Griesbach,
O R D E R
Richard Morens was convicted in a Wisconsin court of possessing heroin and
cocaine with intent to deliver, along with six counts of possessing a firearm as a felon.
The trial judge initially had severed the drug and firearm counts but, upon
reconsideration, joined all the counts again for trial. After exhausting his state
postconviction remedies, Morens filed a petition under 28 U.S.C. § 2254, claiming that
handling all the counts together denied him a fair trial and that his lawyers were
ineffective for not objecting at trial or on direct appeal. The district court denied relief,
and we affirm.
The facts of the crimes are recounted in State v. Morens, No. 2010AP2018‐CR (Wis.
Ct. App. Nov. 22, 2011). After conducting surveillance for several days at a house where
Morens had been observed entering and exiting, Milwaukee police officers obtained and
executed a search warrant for the house. The officers discovered in a concealed
compartment in a closet outside Morens’s bedroom several bags containing a handgun,
suppressor, ammunition, a dust mask, heroin, and cocaine. The officers also found four
other guns in the closet and another gun in the kitchen. Morens’s DNA was found on the
dust mask and the bags containing the gun and drugs. Morens was charged with eight
counts: one count of possessing heroin with intent to deliver, one count of possessing
cocaine with intent to deliver, and six counts of possessing a firearm as a felon.
Morens moved to sever the drug and gun charges on the ground that a jury
considering the drug counts would be prejudiced by learning about his felony
conviction—an element of the gun counts. Morens conceded that evidence showing he
possessed the guns would be admissible at a trial on the drug counts, but he argued that
evidence of his felony conviction would not be relevant to the drug case. At first, the trial
judge agreed with Morens and concluded that “the prejudice outweighs the benefit of
tying” the charges together at trial. The state moved for reconsideration, arguing that,
under State v. Wedgeworth, 302 N.W.2d 810 (Wis. 1981), joinder at trial was appropriate
because the crimes all occurred on the same date at the same location. The trial court
decided that all the counts should be tried together because evidence of the firearms was
admissible as to the drug counts.
Morens changed lawyers after that ruling. At trial the two, new lawyers
developed a defense theory that, although Morens lived there, the residence was a
“party house” visited frequently by other people who could have possessed the
contraband without Morens’s knowledge. Morens’s DNA was found on the bags and the
dust mask, counsel contended at trial, because the police had placed the evidence on his
bed to photograph it. The jury convicted Morens on all counts.
After sentencing Morens changed lawyers again. New counsel brought a
postconviction motion, which in Wisconsin precedes a direct appeal. See Wis. Stat.
§ 974.02; Morales v. Boatwright, 580 F.3d 653, 656 (7th Cir. 2009). She argued that the
lawyers who represented Morens at trial had been ineffective in not calling two
witnesses who would have testified that the house was open to many people. Following
a hearing, the trial judge concluded that counsel had not been ineffective and denied the
motion. The Wisconsin appellate court upheld the denial of Morens’s postconviction
motion and affirmed his convictions. The Wisconsin Supreme Court denied further
With assistance from yet another attorney, Morens then filed a motion for
postconviction relief under Wisconsin Statute § 974.06 on the ground that the drug and
firearm charges should have been severed because the evidence to support the counts
did not entirely overlap. Moreover, Morens claimed, his two trial lawyers were
ineffective for not taking steps to “neutralize” the information about his prior conviction,
and his appellate counsel was ineffective for not raising a claim that the charges should
have been severed for trial. He was prejudiced at trial, Morens insisted, because the
judge did not instruct the jury to limit its consideration of his prior felony conviction to
the firearms counts.
The trial court denied this postconviction motion. Any “neutralizing language”
would not have been helpful, the court reasoned, because Morens “was either a felon or
he wasn’t.” As to a limiting instruction, the court had instructed the jurors as to each
element for each offense, and the jurors were not advised that Morens’s status as a felon
was an element of the drug offenses. Jurors are presumed to follow instructions,
reasoned the trial court, so Morens was not prejudiced by the absence of a specific
The Wisconsin appellate court also denied relief. State v. Morens, No. 2014AP407
(Wis. Ct. App. May 12, 2015). The court ruled that the drug and firearm charges were
properly joined as an initial matter under Wisconsin Statute § 971.12(1) because the
charged crimes stemmed from the ‘same act or transaction,’ and the trial judge had
properly exercised his discretion to deny a severance because the judge had examined
the facts carefully, applied the correct legal standard, and reached a reasonable outcome.
It followed, the appellate court added, that Morens’s counsel on direct appeal did not
perform deficiently by not including a severance claim.
With the aid of counsel Morens then filed his petition for a writ of habeas corpus
under 28 U.S.C. § 2254. He argued that the Wisconsin courts never analyzed whether he
was unfairly prejudiced by joining the drug and guns charges, and he repeated his
assertions that his counsel were ineffective for not pursuing a severance claim.
The district court rejected his claims, reasoning that a proper joinder is
presumptively nonprejudicial, and that Morens had not suffered any actual prejudice.
The court also concluded that the state court did not unreasonably apply Strickland v.
Washington, 466 U.S. 668, 694 (1984), to Morens’s claims that his counsel were ineffective.
Nevertheless, the court issued a certificate of appealability without identifying any claim
for which Morens had made a substantial showing of the denial of a constitutional right,
see 28 U.S.C. § 2253(c)(2), (3). Morens proceeds on appeal with a new attorney, his sixth.
To succeed under § 2254, he must show that the Wisconsin appellate court’s
decision is (1) “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,” or
(2) “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); see Carter v. Douma,
796 F.3d 726, 733 (7th Cir. 2015). The state court’s ruling must be “‘so lacking in
justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.’” Carter, 796 F.3d at 733 (quoting
Harrington v. Richter, 562 U.S. 86, 103 (2011)). Morens cannot overcome this steep hurdle.
Morens first argues that joining the drugs and firearms offenses for trial
prejudiced him to the extent that his right to a fair trial was violated. See United States v.
Lane, 474 U.S. 438, 446 n.8 (1986) (explaining that joinder of offenses raises a
constitutional concern only when prejudice results to a degree that it denies defendant’s
right to fair trial); Biskup v. McCaughtry, 20 F.3d 245, 249 (7th Cir. 1994) (same); Leach v.
Kolb, 911 F.2d 1249, 1258 (7th Cir. 1990) (same). Morens contends that the trial judge did
not consider the prejudice from introducing evidence of his prior conviction to establish
the gun crimes. The evidence that he possessed the heroin and cocaine, Morens says, was
not overwhelming, so learning about his prior conviction could have “tipped the balance
with the jury.” See, e.g., United States v. Peterson, 823 F.3d 1113, 1124 (7th Cir. 2016)
(recognizing that joinder may result in prejudicial “spill‐over effect” if jury relies on
evidence presented as to one count when reaching a conclusion on another count);
United States v. Ervin, 540 F.3d 623, 630 (7th Cir. 2008) (same).
Contrary to Morens’s assertions, the trial judge explicitly considered the potential
prejudice when it first granted his motion to sever and again when it reconsidered that
decision. The trial judge contemplated the degree of prejudice resulting from “the
revelation to the jury” of Morens’s felony conviction “versus the way the offenses are
tied together and how they’re tied together.” In “weighing those two things,” the judge
initially decided that the prejudice was “more important than anything else here” and so
the counts should be severed. After the state moved to reconsider because the charges
arose from the same transaction and the evidence overlapped, the trial judge again
explicitly analyzed the potential prejudice to Morens. The judge opined that “the whole
question then comes down to how prejudicial this is regarding the jury finding out that
he’s got a felony record versus the state’s ability to tie it all together because of the guns
found on the premises.” The judge did “weigh the potential prejudice to the defendant
versus how tied together all of these matters were” and concluded that severance was
not required. Later, the Wisconsin appellate court ruled that the trial judge had applied
the correct legal standard and reached a reasonable decision.
Morens asks us to establish a bright line constitutional rule that drug and
felon‐in‐possession charges must be severed for trial because evidence of the felony
conviction unfairly prejudices the defendant. But joinder of drugs and guns charges for
trial is not per se unconstitutionally prejudicial, and, indeed, ordinarily is proper.
See, e.g., United States v. Blanchard, 542 F.3d 1133, 1141 (7th Cir. 2008); United States v.
Stokes, 211 F.3d 1039, 1042 (7th Cir. 2000). Joinder is appropriate because of the “natural
inferences that may be drawn from the contemporaneous possession of guns and drugs
or drug paraphernalia: the firearm is an indication of drug activity, and participation in
drug trafficking supplies a motive for having the gun.” United States v. Pigee, 197 F.3d
879, 891 (7th Cir. 1999) (citations omitted). Moreover, to minimize the risk of unfair
prejudice, the parties stipulated that Morens was a felon, thus preventing the jury from
hearing any details of his prior conviction. See Spencer v. State of Tex., 385 U.S. 554, 562
(1967) (in considering constitutionality of recidivist statute, holding that admission of
defendants’ prior convictions not inherently prejudicial, especially where “there is no
claim that its presentation was in any way inflammatory”); see also Old Chief v. United
States, 519 U.S. 172, 174 (1997) (ruling that district court abused discretion in refusing to
accept defendant’s stipulation of felony conviction when purpose of evidence of
conviction was solely to prove element of felon‐in‐possession charge).
A stipulation may not protect against the significant risk of prejudice,
Almendarez‐Torres v. United States, 523 U.S. 224, 235 (1998), so trial judges should provide
(at the defendant’s request) some cautionary or limiting instruction to mitigate potential
prejudice. See, e.g., United States v. Carter, 695 F.3d 690, 702 (7th Cir. 2012); Stokes, 211 F.3d
at 1043; cf. Zafiro v. United States, 506 U.S. 534, 539 (1993) (explaining that, in lieu of
severance, “less drastic measures, such as limiting instructions, often will suffice to cure
any risk of prejudice” from trying codefendants together); Marshall v. Lonberger, 459 U.S.
422, 438 n.6 (1983) (explaining that Spencer upheld conviction despite introduction of
defendant’s prior conviction “in part because such evidence was accompanied by
instructions limiting the jury’s use of the conviction to sentence enhancement”). But use
of a limiting instruction is not required by the Constitution, and the failure to provide
one does not inevitably amount to reversible error. See, e.g., United States v. Hope, 906 F.2d
254, 259–60 (7th Cir. 1990). Indeed, a trial court should not provide sua sponte limiting
instructions in absence of the defendant’s request. See, e.g., United States v. Gomez, 763
F.3d 845, 860 (7th Cir. 2014) (cautioning against “judicial freelancing” because
instruction may preempt defendant’s strategic decision not to highlight prior
conviction); United States v. Clark, 989 F.2d 1490, 1500 (7th Cir. 1993).
Morens also contends that the Wisconsin court unreasonably applied Strickland v.
Washington, 466 U.S. 668, 694 (1984) in determining that his trial counsel were not
ineffective. Trial counsel should have “neutralized” the stipulation that he had a felony
conviction, he says, and they should have requested an instruction limiting the jury’s
consideration of the conviction.
This court reviews whether the state court’s determination under Strickland was
unreasonable. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); Carter v. Butts, 760 F.3d 631,
636 (7th Cir. 2014). The Wisconsin court did not probe why counsel did not request an
instruction. Nevertheless, the court reached the correct outcome. See Whatley v. Zatecky,
833 F.3d 762, 775 (7th Cir. 2016) (deferring to state court’s judgment despite its incorrect
reasoning); Brady v. Pfister, 711 F.3d 818, 827 (7th Cir. 2013) (same). Morens had not
supported his assertion that his trial counsel were deficient: He had not asked counsel
why they eschewed an instruction, let alone shown that counsel forgot—or were too
incompetent—to ask for one.
At any rate, the trial court’s conclusion on the prejudice prong was reasonable
under Strickland, which requires that a defendant “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” 466 U.S. at 694. The lack of a limiting instruction did not
prejudice Morens, the trial court concluded, because the jurors were instructed as to each
element they had to find for the drug offenses, they were not advised that the
defendant’s status as a felon was an element of those offenses, and jurors are presumed
to follow their instructions. A limiting instruction may have guarded against any
prejudicial spillover effect, see Peterson, 823 F.3d at 1124, but, given the evidence
presented at trial, an instruction would not have affected the jury’s verdicts on the two
drug counts. See McNary v. Lemke, 708 F.3d 905, 917 (7th Cir. 2013) (concluding that
petitioner was not prejudiced by counsel’s deficient performance because there was
“enough other evidence for the jury to convict”). Under this court’s highly deferential
standard of review, see Cullen v. Pinholster, 563 U.S. 170, 181 (2011), Morens has not
succeeded in showing that the trial court misapplied Strickland in evaluating trial
Finally, Morens argues that his appellate counsel was ineffective because she did
not argue on direct appeal the gun and drug counts should have been severed for trial.
The Wisconsin appellate court’s decision was based on an unreasonable application of
clearly established federal law, contends Morens, because that court did not compare the
relative strength of appellate counsel’s arguments as required by Smith v. Robbins, 528
U.S. 259, 288 (2000). Morens asserts that the severance challenge was obviously stronger
than appellate counsel’s claim that trial counsel were ineffective in not calling two
Appellate counsel need not raise every nonfrivolous claim, and it is “difficult” to
show that failure to raise a particular claim amounts to ineffective assistance “because
the comparative strength of two claims is usually debatable.” Shaw v. Wilson, 721 F.3d
908, 915 (7th Cir. 2013); see also McNary, 708 F.3d at 920 (quoting Smith, 528 U.S. at 288).
Here, the Wisconsin court correctly recited the appropriate ‘comparative strength’
standard derived from Smith and decided that Morens’s appellate counsel was not
ineffective for failing to challenge the trial court’s discretionary severance decision. The
appellate court did not explicitly compare the relative strength of the two arguments,
but it reasonably concluded under Strickland that appellate counsel was not ineffective
for failing to press a weak argument.
The Constitution does not require severance of charges for possessing drugs and
possessing a firearm as a felon. Morens has not established that the joinder of drug and
firearm charges prejudiced him, nor that his counsel were ineffective for not challenging
the joinder. Accordingly, the judgment is AFFIRMED.
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