MORALES v. BUTTS
ENTRY Denying Petition for Writ of Habeas Corpus and Denying Certificate of Appealability. Judgment consistent with this Entry shall now issue. (S.E.). Copy to Petitioner via U.S. Mail. Signed by Judge William T. Lawrence on 2/17/2017.(MAC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
JASON E. MORALES,
KEITH BUTTS, Warden,
Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
Jason Morales seeks habeas corpus relief. Having considered pleadings and the expanded
record, the Court finds for the reasons explained in this Entry that the habeas petition must be
denied and this action dismissed with prejudice. In addition, the Court finds that a certificate of
appealability should not issue.
An Indiana jury convicted Morales of three counts of sexual misconduct. These convictions
were affirmed in Morales v. State, 946 N.E.2d 93 (Ind.Ct.App. 2011). The evidence at trial,
construed favorable to the verdicts, showed that on the evening of February 8, 2009, Morales was
drinking and supplied liquor to V.R., his fiancé’s 14-year old cousin, laid V.R. down on the spare
bed in which she was to sleep, kissed V.R., put his hand down her pants and into her underwear
and stuck his finger in her vagina. The two went out and upon returning
Morales helped V.R. back into the spare bedroom where he “laid [her] down . . .
took [her] pants off and then pulled [her] underwear down and lifted [her] shirt up.”
Tr. p. 206. Morales “put his hands under [V.R.'s] bra,” “touched [her] boobs,” and
“tried to have sex with [her].” Tr. p. 206. After Morales was not able to successfully
complete sexual intercourse with V.R., he “took his clothes off and . . . [told V.R.]
to put [her] mouth on his penis and suck it.” Tr. p. 206. Morales “started pushing
[V.R.'s] head towards” his penis and when V.R. objected, told her to “just do it.”
Tr. p. 206. Eventually, Morales “pushed [V.R.'s] head down onto [his penis] and
. . . made [her] suck it.” Tr. p. 206. In addition, at some point, Morales “put his
mouth on [V.R.'s] vagina and started licking.” Tr. p. 207.
Id., at *1. Morales’ petition to transfer was denied by the Indiana Supreme Court on October 6,
2011. Morales’ petition for post-conviction relief was denied on April 21, 2014. This ruling was
affirmed in Morales v. State, No. 82A04-1005-CR-311 (Ind.Ct.App. April 20, 2011). His petition
to transfer was denied by the Indiana Supreme Court on June 17, 2015, and the filing of this action
followed on November 19, 2015.
The following table identifies the claims which Morales now presents and shows the
point, if at all, at which the corresponding claim was asserted in the Indiana state courts.
STAGE OF CHALLENGE
IN THE INDIANA STATE COURTS
Sufficiency of the Evidence
Ineffective assistance of counsel as
to not objecting to admission of
Ineffective assistance of counsel as
to not objecting to admission of
Ineffective assistance of counsel as
to investigating V.R.’s blackouts
and the source of the underwear
tested for DNA
Indiana statute unconstitutional
Morales now seeks relief pursuant to 28 U.S.C. § 2254(a). This statute authorizes a district
court to issue a writ of habeas corpus on behalf of a person in custody pursuant to a state court
judgment “only on the ground that he is in custody in violation of the Constitution or laws or
treaties of the United States.” Id. His petition is governed by provisions of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336 (1997).
“[U]nder AEDPA, federal courts do not independently analyze the petitioner’s claims;
federal courts are limited to reviewing the relevant state court ruling on the claims.” Rever v.
Acevedo, 590 F.3d 533, 536 (7th Cir. 2010). As one court has explained, “[i]t is this Court’s
obligation to focus “on the state court decision that previously addressed the claims rather than the
petitioner’s freestanding claims themselves.” McLee v. Angelone, 967 F.Supp. 152, 156 (E.D.Va.
1997). “The AEDPA’s standard is intentionally ‘difficult for Petitioner to meet.’” Woods v.
Donald, 135 S. Ct. 1372, 1376 (2015) (per curiam) (quoting White v. Woodall, 134 S. Ct. 1702
(2014); Metrish v. Lancaster, 133 S. Ct. 1781, 1786 (2013)). “AEDPA thus imposes a ‘highly
deferential standard for evaluating state-court rulings,’ and ‘demands that state-court decisions be
given the benefit of the doubt.’” Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (quoting Lindh v.
Murphy, 521 U.S. 320, 333 n.7 (1997)). “[A] state court's determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of
the state court's decision.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (citing Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004)). Pursuant to § 2254(d), “a habeas court must determine
what arguments or theories supported or . . . could have supported, the state court's decision; and
then it must ask whether it is possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision” of the Supreme Court. Id.
“Under the current regime governing federal habeas corpus for state prison inmates, the
inmate must show, so far as bears on this case, that the state court which convicted him
unreasonably applied a federal doctrine declared by the United States Supreme Court.” Redmond
v. Kingston, 240 F.3d 590 (7th Cir. 2001) (citing 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529
U.S. 362 (2000); Morgan v. Krenke, 232 F.3d 562 (7th Cir. 2000)). “A state-court decision
involves an unreasonable application of this Court’s clearly established precedents if the state court
applies this Court’s precedents to the facts in an objectively unreasonable manner.” Brown v.
Payton, 544 U.S. 131, 141 (2005) (internal citations omitted). “The habeas applicant has the
burden of proof to show that the application of federal law was unreasonable.” Harding v. Sternes,
380 F.3d 1034, 1043 (7th Cir. 2004) (citing Woodford v. Visciotti, 537 U.S. 19, 25 (2002)).
In addition to the foregoing substantive standard, “[i]t is the rule in this country that
assertions of error in criminal proceedings must first be raised in state court in order to form the
basis for relief in habeas. Claims not so raised are considered defaulted.” Breard v. Greene, 523
U.S. 371, 375 (1998) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)).
Procedural default can occur in several ways, “but two are paradigmatic.”
Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir. 2014). A state prisoner can
procedurally default a federal claim if he fails to “fairly present” it “throughout at
least one complete round of state-court review, whether on direct appeal of his
conviction or in post-conviction proceedings.” Id. Procedural default can also occur
if the state court rejects a federal claim based on a state procedural rule “that is both
independent of the federal question and adequate to support the judgment.” Id.
(quotation marks omitted).
Clemons v. Pfister, 845 F.3d 816, 819 (7th Cir. 2017)(citing Thomas v. Williams, 822 F.3d 378,
384 (7th Cir. 2016)); Hogan v. McBride, 74 F.3d 144, 146 (7th Cir. 1996) (“Forfeiture under §
2254 is a question of a state's internal law: failure to present a claim at the time, and in the way,
required by the state is an independent state ground of decision, barring review in federal court.”).
Procedural default, although otherwise a bar to federal habeas review, may be excused in
certain circumstances. “A federal court may excuse a procedural default if the habeas petitioner
establishes that (1) there was good cause for the default and consequent prejudice, or (2) a
fundamental miscarriage of justice would result if the defaulted claim is not heard.” Johnson v.
Foster, 786 F.3d 501, 504 (7th Cir. 2015)(internal citations omitted). “Under this cause-andprejudice test, a cause is defined as ‘an objective factor, external to the defense, that impeded the
defendant's efforts to raise the claim in an earlier proceeding.’ Prejudice means ‘an error which so
infected the entire trial that the resulting conviction violates due process.’” Smith v. McKee, 598
F.3d 374, 382 (7th Cir. 2010) (internal citation omitted).
The second exception, known as the fundamental miscarriage of justice exception, requires
a petitioner to show that he is actually innocent. He must show that “in light of new evidence, ‘it
is more likely than not that no reasonable juror would have found petitioner guilty beyond a
reasonable doubt.’” House v. Bell, 547 U.S. 518, 537 (2006) (quoting Schlup v. Delo, 513 U.S.
298, 327 (1995)). Actual innocence means factual innocence, not legal insufficiency. Bousley v.
United States, 523 U.S. 614, 623 (1998).
The first step under § 2254(d)(1) is “to identify the ‘clearly established Federal law, as
determined by the Supreme Court of the United States’ that governs the habeas petitioner’s
claims.” Marshall v. Rodgers, 133 S. Ct. 1446, 1449 (2013) (citing Williams, 529 U.S. at 412;
Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)).
Morales’ first habeas claim is his challenge to the sufficiency of the evidence. The
controlling federal law on this subject is the “rigorous” standard set forth in Jackson v. Virginia,
443 U.S. 307, 319 (1979): “evidence, viewed in the light most favorable to the State, is sufficient
to support a conviction so long as any rational trier of fact could find the essential elements of the
offense to have been proved beyond a reasonable doubt.” Jones v. Butler, 778 F.3d 575, 581 (7th
Cir. 2015). Therefore, “[f]ederal review of these claims . . . turns on whether the state court
provided fair process and engaged in reasoned, good-faith decisionmaking when applying
Jackson’s ‘no rational trier of fact’ test.” Gomez v. Acevedo, 106 F.3d 192, 199 (7th Cir. 1999).
The Indiana Court of Appeals addressed this claim in Morales’ direct appeal and in doing
so first noted its standard of review. “‘We . . . will affirm the conviction if there is substantial
evidence of probative value from which a reasonable jury could find the defendant guilty beyond
a reasonable doubt.’” Morales v. State, 946 N.E.2d 93, *2 (quoting Gregory v. State, 885 N.E.2d
697, 704–05 (Ind.Ct.App.2008)). This standard is comparable to the federal Jackson standard. The
Indiana Court of Appeals then identified the elements of the offense, id., and summarized the
evidence: “At trial, V.R. testified that Morales, knowing that she was fourteen years old, put his
hand down her pants, under her underwear, and ‘stuck his finger in [her] vagina.’ Tr. p. 203. V.R.
also testified that Morales ‘pushed [V.R.'s] head down onto [his penis] and . . . made [her] suck
it,’ and that at some point Morales ‘put his mouth on [V.R.'s] vagina and started licking.’ Tr. pp.
206–07.” Id. “Despite the fact that she could not remember the exact timing sequence of the acts
in question, V.R.'s testimony was consistent with respect to the acts committed by Morales, and
the limits of her memory were thoroughly explored during his testimony.” Id. at *3. This was an
assessment of the evidence compatible with the federal Jackson standard and was a reasonable
applicable of that standard. And because it was a reasonable application of the controlling federal
standard, “[u]nder AEDPA . . . it cannot be disturbed.” Hardy v. Cross, 132 S. Ct. 490, 495 (2011).
Morales’ second claim is that he was denied the effective assistance of counsel. Although
this is a single claim, see Pole v. Randolph, 570 F.3d 922, 934 (7th Cir. 2009) (citing Peoples v.
United States, 403 F.3d 844, 848 (7th Cir. 2005)), there are three specifications of ineffectiveness
and each must be fully exhausted in the state courts. See Campbell v. Burris, 515 F.3d 172, 185
(3d Cir. 2008) (“[I]neffective assistance of counsel claims based on different acts or omissions are
discrete claims and must each be exhausted.”). “[T]o preserve a claim of ineffective assistance of
counsel, the habeas petitioner must assert this theory of relief and transparently present the state
courts with the specific acts or omissions of his lawyers that resulted in prejudice.” Kelley v.
Secretary for Dep’t of Corrections, 377 F.3d 1317, 1344 (11th Cir. 2004).
Strickland v. Washington, 466 U.S. 668, 684 (1984), supplies the clearly established
Federal law, as determined by the Supreme Court of the United States that governs a claim of
ineffective assistance of counsel.
Strickland recognized that the Sixth Amendment’s guarantee that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel
for his defence” entails that defendants are entitled to be represented by an attorney
who meets at least a minimal standard of competence. Id., at 685–687. “Under
Strickland, we first determine whether counsel’s representation ‘fell below an
objective standard of reasonableness.’ Then we ask whether ‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’” Padilla v. Kentucky, 559 U.S. 356, 366 (2010)
(quoting Strickland, supra, at 688, 694).
Hinton v. Alabama, 134 S. Ct. 1081, 1087-88 (2014)(parallel citations omitted). The Supreme
Court framed the determinative question as “whether counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having produced a just
result.” Strickland, 466 U.S. at 686. This Court must give “double deference” to the state court's
ruling on ineffective assistance of counsel claims because habeas review under AEDPA requires
a habeas court to give the state court and the defense attorney the benefit of the doubt. Woods v.
Donald, 135 S. Ct. 1372, 1376 (2015).
The Indiana Court of Appeals recognized the above Strickland standard. Morales v. State,
27 N.E.3d 826, *4 (Ind.Ct.App. 2015). Morales argued that he received ineffective assistance of
trial counsel because 1) counsel failed to object to the admission of the victim's underwear into
evidence, 2) did not object to the introduction of DNA evidence, and 3) failed to present expert
testimony to challenge the victim's claim that she suffered periodical “blackouts” the evening the
crimes occurred. Id. Each of Morales’ specifications of ineffective assistance of counsel at trial
was reviewed, and as to each the Indiana Court of Appeals reasonably applied the Strickland
standard. It first found that the evidence of Morales’ guilt was overwhelming, meaning that in this
instance it was unlikely that the jury’s verdict would have differed even if the challenged evidence
had been excluded. Id. at *5. This explains that the prejudice component of a claim of ineffective
assistance of counsel was absent. The Indiana Court of Appeals proceeded to explain that (1) an
objection to the DNA evidence would not have been sustained, id., (2) an objection to the
admissibility of the underwear would not have been sustained, id. at 6, and (3) trial counsel’s
failure to present expert testimony to challenge the victim's claim that she suffered periodical
“blackouts” the evening the crimes occurred was a matter of strategy because, in part, there would
have been disadvantages to Morales’ defense in doing so. Id.
In examining a habeas petition such as Morales presents here, the Court is required to deny
the writ so long as the [state courts] “t[ook] the [constitutional standard] seriously and produce[d]
an answer within the range of defensible positions.” Murrell v. Frank, 332 F.3d 1102, 1111–12
(7th Cir. 2003) (quoting Mendiola v. Schomig, 224 F.3d 589, 591 (7th Cir. 2000) (emphasis added
in Murrell). Because the Indiana Court of Appeals did so, Morales’ claims of ineffective assistance
of counsel at trial does not support the relief he seeks. The third specification of ineffective
assistance of counsel, moreover, was not included in Morales’ petition to transfer and that
specification has therefore been procedural defaulted. See Hough v. Anderson, 272 F.3d 878, 89293 (7th Cir. 2001)(petitioner's failure to present issue to Indiana Supreme Court constituted
Morales’ final habeas claim is that the statute elevating his offense from a Class C felony
to a Class B felony because at the time of the offense he was more than 21 years old is
unconstitutional. This claim was first presented to the Indiana state courts in Morales’ action for
post-conviction relief. The Indiana Court of Appeals explained why the claim had been waived:
Morales could have raised this issue on direct appeal, but chose not to do so.
Morales also does not raise this issue in the context of a claim of ineffective
assistance of counsel or newly discovered evidence. Because the issue was
available at trial and on direct appeal, the issue is waived for purposes of postconviction proceedings, and the post-conviction court did not err.
Morales v. State, 27 N.E.3d 826, *3. This is a state law ground that is both independent of the
federal question and adequate to support the judgment. See Gray v. Hardy, 598 F.3d 324, 329 (7th
Cir. 2010); Willis v. Aiken, 8 F.3d 556, 561 (7th Cir. 1993). Morales has not come forward showing
circumstances permitting him to overcome the consequences of this procedural default.
“[H]abeas corpus has its own peculiar set of hurdles a petitioner must clear before his claim
is properly presented to the district court.” Keeney v. Tamayo-Reyes, 504 U.S. 1, 14 (1992)
(O'Connor, J., dissenting) (internal citations omitted). In this case, Morales has encountered the
hurdle produced by the doctrine of procedural default as to certain claims. He has not shown the
existence of circumstances permitting him to overcome this hurdle. The other claims do not
warrant relief in light of the deferential standard required by the AEDPA. Harrington v. Richter,
562 U.S. 86, 101 (2011)(“A state court’s determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.”)(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); Stern v. Meisner, 812
F.3d 606, 610 (7th Cir. 2016)(“In other words, [the habeas petitioner] must show a complete
absence of reasonableness in the [state] appellate court's decision.”)(citing Harrington, 562 U.S.
at 98). Morales’ petition for a writ of habeas corpus is therefore denied.
Judgment consistent with this Entry shall now issue.
Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the Court finds that
Morales has failed to show that reasonable jurists would find “it debatable whether the petition
states a valid claim of the denial of a constitutional right” and “debatable whether [this court] was
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore
declines to issue a certificate of appealability.
IT IS SO ORDERED.
JASON E. MORALES
135 McKinley Ave.
Terre Haute, IN 47803
Jesse R. Drum
INDIANA ATTORNEY GENERAL
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
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