Morrow v. Myers et al
Filing
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MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 9/24/2018. (KEK)
FILED
2018 Sep-24 AM 09:24
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
KENNETH LEON MORROW,
Plaintiff,
v.
WALTER MYERS, et al.,
Defendants.
}
}
}
}
} Case No.: 1:15-cv-1129-MHH-TMP
}
}
}
}
MEMORANDUM OPINION
In his petition for writ of habeas corpus, Kenneth Leon Morrow challenges
his December 14, 2011 criminal conviction for capital murder. In 2011, the Circuit
Court of Talladega County accepted a guilty plea from Mr. Morrow and sentenced
him to life without parole. (Doc. 1, p. 2).
Shortly after Mr. Morrow filed his habeas petition in 2015, the magistrate
judge ordered Mr. Morrow to explain why the Court should not summarily dismiss
his petition. (Doc. 8). Mr. Morrow did not file a response. He also did not request
additional time in which to respond.
On June 14, 2018, the magistrate judge filed his report and recommendation.
(Doc. 9). The magistrate judge recommended denying Mr. Morrow’s petition and
dismissing it with prejudice. (Doc. 9, p. 24). The magistrate judge gave Mr.
Morrow notice of his right to object. (Doc. 9, pp. 24-25). Mr. Morrow received an
extension of time (Doc. 11) and timely objected on July 9, 2018. (Doc. 12).
I.
STANDARD OF REVIEW
A district court “may accept, reject, or modify, in whole or part, the findings
or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
When a party objects to a report and recommendation, the district court must
“make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Id. A district
court reviews for plain error proposed factual findings to which no objection is
made, and a district court reviews propositions of law de novo. Garvey v. Vaughn,
993 F.2d 776, 779 n.9 (11th Cir. 1993); see also United States v. Slay, 714 F.2d
1093, 1095 (11th Cir. 1983) (per curiam), cert. denied, 464 U.S. 1050 (1984)
(“The failure to object to the magistrate’s findings of fact prohibits an attack on
appeal of the factual findings adopted by the district court except on grounds of
plain error or manifest injustice.”) (internal citation omitted); Macort v. Prem, Inc.,
208 Fed. Appx. 781, 784 (11th Cir. 2006).
II.
DISCUSSION
In his objections, Mr. Morrow asserts that the state court, the state
prosecutor, and his counsel misled him about the range of punishment for capital
murder (Doc. 12, p. 1) and that his “mental state before pleading guilty caused him
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to plead guilty to something [he] didn’t understand.” (Doc. 12, p. 2). Mr. Morrow
also raises ineffective assistance of trial and appellate counsel. (Doc. 12, pp. 2-4).
Concerning Mr. Morrow’s contention about being misled, the magistrate
judge thoroughly explained why “[t]he conclusion reached by the state courts that
[Mr. Morrow]’s guilty plea was knowing and voluntary is well supported and due
deference.”
(Doc. 9, p. 11).
Mr. Morrow’s generalized objection does not
undermine this conclusion.
Mr. Morrow’s objection about his ineffective trial counsel claim also is
unpersuasive. The magistrate judge set forth the proper framework for analyzing
such a claim and discussed why this Court must give deference to the Alabama
Court of Criminal Appeal’s review of this issue. (Doc. 9, pp. 12-13).
Mr. Morrow argues that the magistrate judge’s procedural default analysis
is flawed concerning his (Mr. Morrow’s) claim that his appellate attorney was
ineffective. (Doc. 12, p. 4). Mr. Morrow contends that although he raised the
claim in his state Rule 32 petition, he never received a merits-based ruling. (Doc.
12, p. 4). The magistrate judge correctly found that during Mr. Morrow’s Rule 32
petition hearing, Mr. Morrow did not offer evidence to support this appellate
counsel claim. (Doc. 9, p. 18). Consequently, Mr. Morrow abandoned it. (Doc. 9,
p. 18). Mr. Morrow’s objection does not refute this finding. See Judd v. Haley,
250 F.3d 1308, 1313 (11th Cir. 2001) (“A state prisoner seeking federal habeas
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relief cannot raise a federal constitutional claim in federal court unless he first
properly raised the issue in the state courts.”) (citing Wainwright v. Sykes, 433 U.S.
72, 87 (1977)).
In his objections, Mr. Morrow points out that he “has a below average I.Q.
with language and comprehension disabilities” and that his “understanding of the
plea was (0) zero.” (Doc. 12, p. 2). Mr. Morrow argues that the trial court “should
have been aware of [his] below average intelligence, and psychological problems
just by [Mr.] Morrow’s demeanor” and “should ha[ve] ordered a[n] independent
competency hearing” sua sponte. (Doc. 12, p. 2).
Mr. Morrow does not include below average intelligence as a ground for
habeas relief. (Doc. 1, pp. 8-14). Mr. Morrow does not mention his I.Q. or his
inability to understand the plea proceedings in his Rule 32 petition. (Doc. 7-16,
pp. 9-21). In his Rule 32 petition, Mr. Morrow does refer to competency, but the
reference concerns his competency at the time of the burglary that gave rise to the
capital murder charge against him: “The mere probability that Petitioner was
competent to stand trial says nothing about his (Mr. Morrow’s) mental status at the
time the crime was commit[t]ed.” (Doc. 7-16, p. 19). In his Rule 32 petition, Mr.
Morrow argues that his attorney should have challenged portions of a
psychological evaluation report relating to Mr. Morrow’s mental competency at the
time of the underlying incident. (Doc. 7-16, p. 19); see Ala. R. Crim. P. 11.3 (c)(1)
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(“Any psychiatrist or psychologist appointed by the court . . . shall submit to the
circuit judge a report containing an opinion of whether the defendant is
‘incompetent,’ as that term is defined in Rule 11.1.”). Mr. Morrow argues that,
given statements made by the crisis negotiator on the day of the underlying
incident, his trial counsel should have realized that Mr. Morrow was contemplating
suicide despite denying that question during the psychological evaluation. (Doc. 716, p. 19). These arguments do not implicate Mr. Morrow’s I.Q. or his ability to
understand the plea proceedings in the state case.
Because Mr. Morrow did not address his low I.Q. in the Rule 32 petition
(Doc. 7-16, pp. 9-21) and appears never to have presented that issue to the state
courts, that claim is procedurally defaulted.
Consequently, habeas relief is
unavailable.
III.
CONCLUSION
The Court has reviewed de novo those parts of the record relating to Mr.
Morrow’s objections as well as the magistrate judge’s legal analysis. This Court
overrules Mr. Morrow’s objections and accepts the magistrate judge’s
recommendation. Therefore, the Court will deny Mr. Morrow’s request for relief
and dismiss with prejudice Mr. Morrow’s petition for writ of habeas corpus.
The Court will enter a separate final judgment consistent with this opinion.
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DONE this 24th day of September, 2018.
_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
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