Morgan (ID 93134) v. Kansas, State of et al

Filing 18

MEMORANDUM AND ORDER: IT IS THEREFORE ORDERED that Ramona I. Morgan's Petition For Writ Of Habeas Corpus (Doc. #1) filed October 16, 2015 is DENIED. IT IS FURTHER ORDERED that a certificate of appealability as to the ruling ondefendant's Section 2254 petition is DENIED. Signed by District Judge Kathryn H. Vratil on 07/12/2017.Mailed to pro se party Ramona I. Morgan by regular mail. (cv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RAMONA I. MORGAN,

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)
)
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v.
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STATE OF KANSAS, et al.,
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Respondents.
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__________________________________________)
Petitioner,

CIVIL ACTION
No. 15-3241-KHV

MEMORANDUM AND ORDER
Pursuant to 28 U.S.C. § 2254, pro se petitioner Ramona I. Morgan seeks a writ of habeas
corpus, claiming various constitutional violations arising out of her state court convictions for
second degree murder and aggravated battery. Petition For Writ Of Habeas Corpus (Doc. #1) filed
October 16, 2015. For the reasons stated below, the Court denies the petition.
Factual Background
The Kansas Court of Appeals set out in detail the evidence at trial, see State v. Morgan, 231
P.3d 587 (May 28, 2010). The Court briefly summarizes the evidence as follows:
In September of 2007, a work crew was resurfacing a portion of a highway in Douglas
County, Kansas. Only one lane of traffic was open to vehicles. Flaggers directed traffic at each end
of the marked construction zone, and a pilot car led the vehicles in the open lane.
On the morning of September 11, 2007, several workers saw a dark-colored truck driving
northbound through the construction zone with two female occupants. They noticed that the truck
was not following a pilot car and was traveling very fast. Two crew members motioned for the truck
to slow down, but it accelerated. The truck swerved towards crew foreman Rollin Jensen, who
jumped behind a resurfacing machine and threw a cup of coffee at the truck.

About 30 to 45 minutes later, the crew saw the same truck driving southbound in the“safe
lane” where workers were operating machinery. Amanda Hopper was working as a flagger at the
north end of the zone, and saw the truck accelerate as it approached. She tried to stop the truck by
hitting the front passenger side headlight with her flagger paddle, but the truck continued to
accelerate through the safe lane. Crew member Oscar Anaya-Bautista attempted to slow the truck
by signaling to the driver, but the truck accelerated and drove past him. Another crew member,
Curtis Delzell, also tried to get the driver’s attention by waving his arms, but the truck continued to
accelerate through the zone. The truck struck Delzell, injuring his left foot and leg. The truck then
hit two of the crew members, Rolland Griffith and Tyrone Korte, who both died from their injuries.
Shortly after the incident, Trooper Todd Brooks received a call for assistance and a
description of the vehicle involved. He saw a truck matching the description and pursued it with
emergency lights and siren turned on. Brooks pursued the truck for 25 miles at speeds up to 95
miles an hour. He eventually stopped the truck after law enforcement officers placed stop sticks on
the road. Brooks identified the driver as Ramona Morgan and the passenger as Morgan’s daughter,
Sabrina Morgan.
The Douglas County district attorney charged Ramona Morgan with two counts of reckless
second degree murder for the deaths of Griffith and Korte, in violation of Kan. Stat. Ann. § 21-3402
(repealed) and one count of reckless aggravated battery for the injuries to Delzell, in violation of
Kan. Stat. Ann. § 21-3414 (repealed).1

1

In 2010, the Kansas legislature recodified the Kansas Criminal Code and repealed
the prior code, including K.S.A. §§ 21-3402 and 21-3414. See Laws 2010, ch. 136, §307, eff. July
1, 2011.
-2-

In September of 2008, the state court held a jury trial. The government presented testimony
by Trooper Brooks and surviving construction crew members who had witnessed the incident.
Forensic experts testified that blood and other material collected from the front of Morgan’s truck
matched the DNA of Griffith and Korte. The government also introduced evidence that the truck
computer indicated that the truck was traveling 51 miles per hour when it struck the workers.
Sabrina briefly testified under subpoena during the prosecution’s case and acknowledged being an
unwilling witness. In very general terms, Sabrina testified about the events that Morgan later
testified about.2
Morgan testified at trial as follows: In August of 2007, she had sold her farm in Chewala,
Washington. On September 7, she and her daughter Sabrina left Washington to drive to Missouri
to purchase a small farm property near Eldridge, Missouri. When they arrived at the Missouri
property on September 10, Morgan saw the property for about five minutes, decided that it was
unacceptable, and left. She decided to travel back to Washington to live with her sister while she
looked for another property. After leaving the Missouri property, she saw four or five vehicles on
the side of the road with people talking on cell phones and pointing at her. Some of these vehicles
began to chase her, or tried to stop her or run her off the road. One of the drivers held a gun out the
window of his SUV and shot at her truck. When she got to Buffalo, Missouri, Morgan called 911
and reported these incidents.

2

As the Kansas Court of Appeals stated in ruling on Morgan’s appeal of her state
habeas petition, “although Sabrina’s demeanor in testifying is difficult to assess from the transcript,
comments in the record from both the prosecutor and Morgan’s trial lawyer suggest they considered
Sabrina to be a weak, unpersuasive witness.” See Morgan v. State, 336 P.3d 922 (Table), 2014 WL
5609935, at *2 (Kan. App. Oct. 24, 2014).
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Over the next few days, Morgan experienced several other unusual events which caused her
to fear for her safety and that of Sabrina. Early on the morning of September 11, 2007, she checked
out of a hotel in Gardner, Kansas just two hours after she had checked in because she was afraid that
the Missouri gang had followed her to the hotel. She became lost as she tried to find the interstate
highway to head back to Washington. She approached the construction zone in Douglas County and
was coming to a stop when a flagger started hitting her truck with a pole. Someone then threw
gasoline at her truck and started pelting the truck with objects. She was trying to escape and was
extremely scared, so she drove quickly through the construction zone because she believed that the
people in the zone were the same people who had chased her truck in Missouri. She struck what she
thought were grey and orange barricades, but she did not hit any people with her truck.
After that, she saw a car close behind her. Sabrina said that it looked like a police car, but
Morgan was scared so she did not stop. Morgan said that the car did not have a light bar on top, like
police cruisers do. Sabrina placed a cell phone call to 911 to try to confirm that a law enforcement
officer was behind them. Morgan stopped the pickup truck when she approached a roadblock and
could readily identify a police officer there.
Morgan’s counsel did not introduce evidence to corroborate testimony about the Missouri
gang by Morgan and Sabrina.
On September 9, 2008, a jury found Morgan guilty of two counts of second degree murder
and one count of aggravated battery. On November 12, 2008, the trial court sentenced Morgan to
315 months in prison.

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Procedural Background
Morgan filed a direct appeal of her conviction and sentence in the Kansas Court of Appeals.
She asserted that the district court erred in (1) admitting footage of Morgan’s statements to the news
media; (2) excluding evidence that a material witness (Hopper) was biased; (3) responding to jury
questions regarding instructions on “state of mind” and “extreme indifference to human life;” and
(4) including prior convictions in Morgan’s criminal history score. She also asserted cumulative
error. The Court of Appeals found only harmless error and upheld Morgan’s convictions and
sentence. State v. Morgan, No. 101769, 2010 WL 2245604 (Kan. App. May 28, 2010), rev. denied,
290 Kan. 1101 (2010).
Morgan then filed a motion for post-conviction relief under the Kansas habeas corpus statute,
Kan. Stat. Ann. § 60-1507, alleging ineffective assistance of trial and appellate counsel. In August
of 2012, the district court held an evidentiary hearing on the motion and issued a lengthy written
decision rejecting Morgan’s claims. See State v. Morgan, No. 11-C-525, Douglas Cty. Kan. Dist.
Court, Nov. 7, 2012 (unpublished). Morgan appealed, setting forth three arguments. First, she
argued that her trial lawyer was ineffective because he did not object to admission of the news report
on grounds that the prejudicial impact of showing Morgan in prison clothes and handcuffed
outweighed the probative value of her statements. Second, she argued that trial counsel was
ineffective when he failed to offer a recording of the 911 call which Sabrina made as Trooper
Brooks tried to stop their pickup truck as it drove away from the construction zone. Third, she
argued that appellate counsel was ineffective because he did not assert that the prosecutor’s repeated
use of the phrase “we know” to introduce various representations during closing argument
constituted prosecutorial misconduct. The Kansas Court of Appeals denied post-conviction relief.

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On October 16, 2015, in this Court, Morgan filed a Petition For Writ Of Habeas Corpus
(Doc. #1) asserting 12 grounds for relief. On March 30, 2016, the Court issued an Order To Show
Cause (Doc. #6) which directed petitioner to show that she had exhausted state court remedies on
all 12 grounds raised in her petition. The Court stated that if petitioner had not exhausted all
12 claims, she could dismiss her unexhausted claims and proceed on the exhausted claims, or the
Court would dismiss the entire petition as mixed. Doc. #4 at 1; see Rhines v. Weber, 544 U.S. 269,
273 (2005) (federal district courts may not adjudicate mixed petitions for habeas corpus). Petitioner
responded that she chose to continue with six exhausted claims and to dismiss six unexhausted
claims. See Motion To Continue Petition (Doc. #5) filed April 6, 2016 at 1; Response To Order
(Doc. #8) filed May 13, 2016 at 1-2.
Standards For Habeas Petitions Under 28 U.S.C. § 2254
The Antiterrorism and Effective Death Penalty Act (“AEDPA”), codified in relevant part at
28 U.S.C. § 2254, governs the Court’s review. Under Section 2254, the Court may not issue a writ
of habeas corpus with respect to any claim that the state court adjudicated on the merits unless that
adjudication
(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)(1), (2); see Charlton v. Franklin, 503 F.3d 1112, 1114-15 (10th Cir. 2007).
Under the “contrary to” clause, the Court may issue a writ of habeas corpus only if (1) the
state court arrived at a conclusion opposite to that reached by the United States Supreme Court on
a question of law, or (2) the state court decided the case differently than the Supreme Court on a set
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of materially indistinguishable facts. Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004).
Under the “unreasonable application” clause, the Court may grant habeas relief if the state court
“correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular
prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 407-08 (2000). The Court may not issue a writ
simply because it concludes, in its independent judgment, that the state court applied clearly
established federal law erroneously or incorrectly; rather, the application must have been objectively
unreasonable. See id. at 409-11.
The Court presumes “that factual determinations made by the state court are correct, and the
petitioner bears the burden of rebutting this presumption with clear and convincing evidence.”
Martinez v. Zavaras, 330 F.3d 1259, 1262 (10th Cir. 2003). This presumption does not extend to
legal determinations or to mixed questions of law and fact. Id. That is, the “deferential standard of
review does not apply if the state court employed the wrong legal standard in deciding the merits
of the federal issue.” Id. (quoting Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003)).
Ultimately, this Court’s review of the state court proceedings is quite limited, as Section 2254(d)
sets forth a highly deferential standard for evaluating state court rulings. Frost v. Pryor, 749 F.3d
1212, 1222 (10th Cir. 2014).
A state prisoner may not obtain federal habeas relief unless the petitioner “has exhausted the
remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). The Tenth Circuit Court
of Appeals recently explained the doctrine of procedural default in detail. See Griffin v. Scnurr, 640
F. App’x 710, 716-17 (10th Cir. 2016). Four aspects of the exhaustion requirement contribute to
the doctrine of procedural default. Id. at 716. First, “state prisoners must give the state courts one
full opportunity to resolve any constitutional issues by invoking one complete round of the State’s

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established appellate review process.” Id. To do so, the prisoner must seek discretionary review
of the constitutional issue she wishes to pursue under Section 2254 in the state’s highest court –
here, the Kansas Supreme Court. Id. Second, the prisoner must “fairly present” her claim in each
appropriate state court, thus alerting that court to the federal nature of the claim. Id. (prisoner must
present “substance” of claim to state courts so as to put courts on notice of federal constitutional
claim); see Prendergast v. Clements, 699 F.3d 1182, 1184 (10th Cir. 2012). Third, procedural
default may arise from anticipatory procedural bar. Generally, a federal court should dismiss
unexhausted claims without prejudice so that the petitioner can pursue available state-court
remedies. But if the court to which petitioner must present her claims to meet the exhaustion
requirement would now find those claims procedurally barred, “there is a procedural default for the
purposes of federal habeas review.” Griffin, 640 F. App’x at 716. Fourth, federal courts do not
address issues that petitioner defaulted in state court on an independent and adequate state
procedural ground, unless petitioner can demonstrate “cause and prejudice or a fundamental
miscarriage of justice.” Id. at 717 (citing Cummings v. Sirmons, 506 F.3d 1211, 1224 (10th Cir.
2007)).
Analysis
Petitioner asserts six grounds for habeas corpus relief: (1) the trial court improperly admitted
a video of a television newscast which showed petitioner shackled and dressed in an orange
jumpsuit; (2) the trial court improperly excluded from evidence a recording of Sabrina’s 911 call;
(3) prosecutorial misconduct during closing argument; (4) ineffective assistance of trial counsel;3

3

Petitioner alleges that trial counsel was ineffective because he failed to (1) gain
admission of a 911 call; (2) object to prosecutorial misconduct during closing argument; (3) request
(continued...)
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(5) the trial court improperly relied on prior convictions in calculating her criminal history score
and (6) admission of perjured testimony by Amanda Hopper.
I.

Admission of News Video
Evidence at trial included a news video of Morgan speaking to the press while shackled and

dressed in an orange jumpsuit. Petitioner claims that admission of this evidence violated her due
process right to a fair trial. Respondents assert that petitioner procedurally defaulted this claim. At
trial, petitioner only objected to the news video on grounds that it was hearsay. On appeal, petitioner
asserted that the video violated her due process right to a fair trial, but the Kansas Court of Appeals
found that she had procedurally defaulted the due process issue because she did not raise it at trial.
Morgan, 2010 WL 2245604, at *3 (noting that trial objections to video were matters of purely state
evidentiary law). Respondents argue that this procedural default represents an independent and
adequate state ground barring federal review. See Coleman v. Thompson, 501 U.S. 722, 729-30
(1991).
A state rule “is independent if it relies on state law rather than federal law and is adequate
if it is regularly followed and applied evenhandedly.” Zimmer v. McKune, 87 F. Supp.2d 1153,
1158 (D. Kan. 2000). The independent requirement is met if the last court that rendered a judgment
in the case clearly and expressly stated that its decision rested upon a state procedural bar. Harris
v. Reed, 489 U.S. 255, 263 (1989). The adequate requirement is met if the state procedural rule is
a “firmly established and regularly followed state practice” and applied to all similar claims in an

3

(...continued)
a jury instruction on involuntary manslaughter as a lesser included offense; (4) object to admission
of the news video which showed petitioner in an orange prison jumpsuit and shackles; (5) request
a jury instruction on the defense of compulsion and (6) inform petitioner that he was “on drugs.”
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evenhanded manner in the majority of cases. Messer v. Roberts, 74 F.3d 1009, 1015 (10th Cir.
1996).
Here, the Kansas Court of Appeals clearly and expressly stated that petitioner’s claim on
appeal was barred because state procedural rules required a timely and specific objection, which
petitioner did not make. Morgan, 2010 WL 2245604 at *3. This is a firmly established and
regularly followed rule which Kansas courts apply to similar claims in an evenhanded manner in the
majority of cases. See, e.g. State v. Breedlove, 295 Kan. 481, 490, 286 P.3d 1123, 1130 (2012)
(party may not object on one ground at trial and then argue another on appeal); State v. Sharp, 289
Kan. 72, 104, 210 P.3d 590, 610 (2009). Thus, petitioner’s claim is defaulted by an independent and
adequate state procedural bar, and this Court cannot consider it unless petitioner can show cause for
her default and actual prejudice, or demonstrate that the Court’s failure to consider the claim will
result in a fundamental miscarriage of justice. Murray v. Carrier, 477 U.S. 478, 488-89, 496 (1986).
Petitioner has not shown cause for her default because she does not point to an external
factor that prevented her from raising a due process claim regarding admission of the video.
Coleman, 501 U.S. at 753. To the extent petitioner asserts that counsel’s failure to raise the due
process objection constitutes cause, she must show that counsel was constitutionally ineffective
under Strickland v. Washington, 466 U.S. 668 (1984). As set forth in a separate discussion below,
she has not shown ineffective assistance of counsel, and thus cannot show cause for her default.
Even if petitioner could show cause, she cannot show actual prejudice. At trial, the
government presented overwhelming evidence of guilt: a number of witnesses testified that
petitioner drove her truck at a high speed through the construction zone in which workers were

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present. Petitioner did not dispute that testimony. The Court finds no reasonable probability that
the jury would have returned a different verdict if the video had not been admitted.
Petitioner also cannot show a miscarriage of justice. Carrier, 477 U.S. at 496-97. To show
a miscarriage of justice petitioner must demonstrate that the error complained of probably resulted
in the conviction of an innocent person. Bousley v. United States, 523 U.S. 614, 623 (1998). Given
the extremely strong evidence of guilt, petitioner cannot meet this standard.
II.

Exclusion Of 911 Call
The trial court excluded evidence of Sabrina’s 911 call, and petitioner asserts that this ruling

violated her due process right to a fair trial. At the state court level, petitioner only raised this issue
as part of her claim of ineffective assistance of counsel. Therefore, to the extent petitioner seeks to
raise it as an independent constitutional claim, it is not exhausted and is procedurally defaulted. See
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (failure to present claims to state courts to allow
them fair opportunity to act on claims defaults claims for federal habeas purposes). To the extent
that petitioner raises the exclusion of the 911 call as part of her ineffective assistance of counsel
claim, the Court addresses it below.
III.

Prosecutorial Misconduct
Petitioner asserts that prosecutorial misconduct during closing argument violated her due

process right to a fair trial. Specifically, she complains that the prosecutor repeatedly used the
phrase “we know” to introduce various representations, and that the prosecutor thereby engaged in
misconduct. At the state court level, petitioner only raised this issue as part of her claim of
ineffective assistance of counsel. Thus, to the extent that she attempts to raise the merits of the
prosecutorial misconduct claim as an independent ground for federal habeas relief, it has been

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procedurally defaulted. See id. To the extent that petitioner raises the prosecutorial misconduct
claim as part of her ineffective assistance of counsel claim, the Court addresses it below.
IV.

Ineffective Assistance of Counsel
Petitioner asserts that trial counsel “made numerous errors during trial which resulted in the

outcome of trial.” See Petition (Doc. #1) at 9. Specifically, she asserts that trial counsel failed to
(1) gain admission of the 911 call; (2) object to prosecutorial misconduct during closing argument;
(3) request a jury instruction on involuntary manslaughter as a lesser included offense; (4) object
to admission of the news video which showed petitioner in an orange prison jumpsuit and shackles;
(5) request a jury instruction on the defense of compulsion and (6) inform petitioner that he was “on
drugs.”
The Court reviews petitioner’s claims of ineffective assistance of counsel under the familiar
framework laid out in Strickland, 466 U.S. at 687-88. Petitioner must show both that her counsel’s
performance “fell below an objective standard of reasonableness” and that “the deficient
performance prejudiced the defense.” Id.; accord Hooks v. Workman, 606 F.3d 715, 723 (10th Cir.
2010).
This Court’s review of counsel’s performance is “highly deferential.” Hooks, 606 F.3d at
723. “[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Byrd v. Workman, 645 F.3d 1159,
1168 (10th Cir. 2011). “To be deficient, the performance must be outside the wide range of
professionally competent assistance. In other words, it must have been completely unreasonable,
not merely wrong.” Hooks, 606 F.3d at 723 (citations and internal quotation marks omitted). The
Supreme Court requires the Court to make “every effort . . . to eliminate the distorting effects of

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hindsight” by indulging in a strong presumption that counsel acted reasonably. Strickland, 466 U.S.
at 689. Petitioner bears a heavy burden of overcoming the presumption that counsel’s actions were
sound trial strategy. Byrd, 645 F.3d at 1168.
Furthermore, in a Section 2254 proceeding, petitioner faces an even greater challenge,
because this Court defers not only to the attorney’s decision in how to best represent a client, but
also to the state court determination that counsel’s performance was not deficient. Id. Thus, review
of a habeas claim of ineffective assistance of counsel is “doubly deferential.” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009). This Court may grant habeas relief on an ineffective
assistance claim only if the state court determination on the issue involved “an unreasonable
application” of clearly established federal law. See Frost, 749 F.3d at 1223.
A.

Failure to Introduce 911 Call

In the state habeas proceeding, the district court applied the Strickland analysis and found
that trial counsel’s failure to introduce evidence of the 911 recording was objectively unreasonable,
but that the error did not prejudice petitioner. In dicta on appeal, the Kansas Court of Appeals
agreed with the district court’s finding that counsel’s performance was objectively unreasonable but
noted that petitioner did not include the recording of the 911 call in the record on appeal, and thus
the appellate court could not make any “reasoned assessment” of potential or actual prejudice.
Morgan, 2014 WL 5609935 at *8. Thus, in the state habeas appeal, petitioner procedurally defaulted
the prejudice prong of the Strickland analysis, and also defaulted it for federal habeas purposes.4

4

Even if the Kansas Court of Appeals had reached the prejudice prong, respondents
point out that even without the 911 recording, the defense was able to elicit testimony about the call
and further, in light of the other evidence presented by the State and the defense, evidence of the
actual recording would not have changed the outcome of the trial. This was a reasonable
(continued...)
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B.

Failure To Object To Prosecutorial Misconduct

Petitioner next claims that trial counsel provided ineffective assistance when he failed to
object to alleged prosecutorial misconduct during closing argument. In her state habeas proceedings,
she presented this as a claim of ineffective assistance of appellate counsel for not raising
prosecutorial misconduct on appeal.5 Petitioner thus did not exhaust the ineffective assistance of
trial counsel claim, and the Kansas courts would now find such a claim procedurally barred. See
Bland, 459 F.3d at 1012. Moreover, petitioner has not demonstrated cause or prejudice or shown
that this Court’s failure to consider this claim will result in a fundamental miscarriage of justice.
C.

Failure To Object To Admission Of News Video

Petitioner claims that trial counsel was ineffective for failing to properly object to the
admission of the news video of petitioner. The video showed petitioner in shackles and prison
clothing as she answered a reporter’s questions while officers escorted her into the courthouse.
Counsel objected to the video on hearsay grounds, rather than on grounds of undue prejudice. The
trial court overruled the hearsay objection. On appeal, the Kansas Court of Appeals found that
petitioner had defaulted a due process challenge.

4

(...continued)
determination and a reasonable application of Strickland. Under the deferential AEDPA standard,
reasonable jurists could agree with the state district court and therefore, its decision must stand.
5

The Kansas Court of Appeals found that while some of the prosecutor’s comments
were improper, they did not deprive petitioner of a fair trial. Morgan, 2014 WL 5609935, at *9-12
(based on clear evidence against petitioner and absence of solid defense, “near certainty” that
improper argument could not have caused jurors to convict). Because the claim would not have
succeeded on appeal, the Kansas Court of Appeals held that petitioner’s appellate counsel was not
ineffective. Id. at *12 (duty of adequate representation does not require lawyer to assert
unmeritorious claims)
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In her state habeas petition, petitioner asserted that her counsel was ineffective for failing
to object to the video on due process grounds. The trial court found that counsel’s performance was
deficient, but that petitioner could not show prejudice because of the overwhelming evidence against
her. On collateral appeal, the Kansas Court of Appeals expressed doubt that a due process challenge
to admission of the video would have succeeded, and found that even if counsel made a mistake, it
“quite arguably did not fall below the level of advocacy required by the Sixth Amendment.”
Morgan, 2014 WL 5609935, at *6.6 The Kansas Court of Appeals also noted that petitioner bore
significant responsibility for the video: had she not stopped to answer the reporter’s questions, there
would have been no relevant video to admit. Id. Given the circumstances, it is not reasonably clear
that a due process challenge would have succeeded at trial, so counsel could have reasonably
concluded that such a challenge would fail and declined to raise it. See Byrd, 645 F.3d at 1168.
Thus, it is not obvious that objectively reasonable counsel would have raised such a challenge.
Even if counsel’s performance was deficient, petitioner cannot show prejudice. The Kansas
Court of Appeals concluded that “[t]he evidence against [petitioner] was overwhelming in this case,
especially considering that the reckless second-degree murder charges did not require the State to
prove intentional killings but rather deaths occurring ‘under circumstances manifesting extreme
indifference to the value of human life.’” Morgan, 2014 WL 5609935, at *6 (quoting Kan. Stat.
Ann. § 21-3402(b)). Multiple witnesses testified that petitioner drove her truck at a high speed
through the construction zone in which workers were present. Petitioner did not dispute that
testimony; her defense was that she did what she did because she was in fear for her life from some

6

The Kansas Court of Appeals correctly noted that the situation differed from cases
in which a criminal defendant was forced to appear shackled and in prison garb in court. Morgan,
2014 WL 5609935, at *5.
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mysterious road gang. The Kansas Court of Appeals reasonably found no reasonable probability
that the jury would have returned a different verdict if the video had not been admitted. Id. at *6-7.
D.

Defaulted Claims Of Ineffective Assistance of Counsel

Respondents assert that petitioner has defaulted the following claims of ineffective
assistance: (1) failure to request a jury instruction on involuntary manslaughter; (2) failure to request
an instruction on the defense of compulsion; and (3) failure to inform petitioner that counsel was “on
drugs.”7 Petitioner did not raise any of these claims in her collateral appeal to the Kansas Court of
Appeals, and therefore, they are unexhausted. Further, under Kansas state procedural rules, the
state court to which petitioner must present her claims in order to meet the exhaustion requirement
would now find these claims procedurally barred. Thus, the claims are procedurally defaulted for

7

Petitioner alleges that her attorney, William Rork, was “on drugs” and that his
performance was so affected as to rise to a level of ineffective assistance of counsel. Rork had
surgery before the start of trial, and during trial he took pain medicine (including morphine) and
other prescription drugs to treat cancer. Petitioner alleges that as a result, Rork (1) had drool on his
face during voir dire; (2) used profanity after a disagreement with a prosecutor and (3) seemed to
be performing below his normal skill level.
Petitioner raised these issues at the Section 60-1507 hearing in the District Court of Douglas
County, Kansas. Rork testified that his medication did not affect his ability to do his job. The
Kansas district court noted that it did not need to determine whether Rork was performing below his
normal skill level or whether his medical condition was the cause of any alleged deficiency. The
court stated that the only relevant inquiry was whether his performance was ineffective under
Strickland. See Morgan v. State, 11-C-525, Douglas County District Court, Nov. 7, 2012
(unpublished).
Even if this Court were to reach the merits of this issue, petitioner has pointed to no evidence
that Rork’s performance fell beneath a standard of reasonably effective assistance. See Muniz v.
Smith, 647 F.3d 619, 624-625 (6th Cir. 2011) (falling asleep for brief periods at trial and being
addicted to cocaine not enough to show constitutional deprivation of counsel); see also Burdine v.
Johnson, 262 F.3d 336, 349 (5th Cir. 2001) (“Even the intoxicated attorney exercises judgment,
though perhaps impaired, on behalf of his client at all times during a trial.”). Further, petitioner has
offered no evidence to suggest that but for the conduct she alleges, the result of her trial would have
been different.
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purposes of federal habeas review. See Bland, 459 F.3d at 1012. Petitioner has not shown an
external cause for her failure to raise these claims, and has not shown prejudice. Further, she has not
demonstrated a miscarriage of justice if this Court were to deny review of such claims.
V.

Testimony By Amanda Hopper
Petitioner claims that the trial court denied her due process right to a fair trial when it

allowed perjured testimony by Amanda Hopper. Petitioner did not raise this issue in the state courts.
This claim is unexhausted and is now procedurally defaulted, and therefore barred from federal
habeas review. See Bland, 459 F.3d at 1012.
On direct appeal, however, petitioner also argued that the trial court erred in prohibiting her
counsel from asking Hopper about Hopper’s civil suit against petitioner’s insurance company, as
evidence of bias. To the extent petitioner asserts that this ruling violated due process, this claim
does not warrant federal habeas relief. See Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (Sixth
Amendment Confrontation Clause guarantees criminal defendant right to cross-examine witnesses
but judges retain wide latitude to impose reasonable limits on cross-examination). Evidence about
Hopper’s lawsuit was only marginally relevant and would likely have confused the issues.
Therefore, the trial court’s decision to exclude the evidence was a reasonable application of
discretion and was not inconsistent with United States Supreme Court precedent. Moreover, as the
Kansas Court of Appeals found, even if the trial court erred, the error was harmless. Morgan, 2010
WL 2245604 at *4 (“Hopper’s testimony was not critical to the State’s case, other witnesses testified
to nearly identical observations, and the State’s case against [Petitioner] was quite strong”).

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VI.

Use Of Prior Conviction To Enhance Sentence
Finally, petitioner asserts that her enhanced sentence violates the constitution.8 She appears

to assert that use of her prior convictions to enhance her sentence violated Apprendi v. New Jersey,
530 U.S. 466, 2000). In Apprendi and Blakely v. Washington, 542 U.S. 296, 301 (2004), the
Supreme Court clearly held that prior convictions are an exception to the general rule that “any fact
that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. On federal habeas review, the
Tenth Circuit has rejected claims that the State’s use of prior convictions for sentencing purposes
violates Apprendi. Hunter v. Werholtz, 505 F.3d 1080, 1081-82 (10th Cir. 2007).
Conclusion
For the reasons discussed above, the Court concludes that Morgan’s habeas petition does not
establish any instance where the state proceedings “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 “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).
Further, the record conclusively shows that Morgan is not entitled to relief. Accordingly,
no evidentiary hearing is required. See United States v. Marr, 856 F.2d 1471, 1472 (10th Cir. 1998)
(no hearing required where factual matters raised by § 2255 petition may be resolved on record).

8

In her argument on this point, petitioner does not present any discussion about her
sentence, but instead complains about the amount of bail. Petitioner’s complaint about her bail is
both procedurally defaulted, as it was not presented to the state appellate courts, and moot. Murphy
v. Hunt, 455 U.S. 478, 481 (1982) (claims related to pretrial bail become moot once defendant
convicted).
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Certificate Of Appealability
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts,
instructs that “[t]he district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” Pursuant to 28 U.S.C. § 2253, the court may issue a certificate
of appealability “only if the applicant has made a substantial showing of the denial of a
constitutional right,” and the court indicates “which specific issue or issues satisfy [that] showing.”
A petitioner can satisfy that standard by demonstrating that the issues raised are debatable among
jurists, that a court could resolve the issues differently, or that the questions deserve further
proceedings. Slack v. McDaniel, 529 U.S. 473, 484 (2000). In addition, when the court’s ruling is
based on procedural grounds, a petitioner must demonstrate that “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct in its procedural
ruling.” Id.
The Court concludes that a certificate of appealability should not issue in this case. Nothing
suggests that the Court’s ruling resulting in the dismissal of this action is debatable or incorrect. The
record does not suggest that the Tenth Circuit Court of Appeals would resolve the issues in this case
differently.
IT IS THEREFORE ORDERED that Ramona I. Morgan’s Petition For Writ Of Habeas
Corpus (Doc. #1) filed October 16, 2015 is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability as to the ruling on
defendant’s Section 2254 petition is DENIED.

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Dated this 12th day of July, 2017 at Kansas City, Kansas.
s/ Kathyrn H. Vratil
KATHRYN H. VRATIL
United States District Court

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