Morrow v. Grondolsky

Filing 4

Judge Richard G. Stearns: ORDER entered. MEMORANDUM AND ORDER. The petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 is denied.(PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 18-10458-RGS
DAVID MORROW
v.
JEFFREY GRONDOLSKY
MEMORANDUM AND ORDER
June 21, 2018
For the foregoing reasons, the petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241 is denied.
BACKGROUND
On March 3, 2018, Petitioner, David T. Morrow, an inmate at the
Federal Medical Center, Devens, filed a pro se petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241, on the basis that the federal prosecutors
failed to turn over exculpatory evidence, in violation of Brady v. Maryland,
373 U.S. 83 (1963). Petitioner is presently serving a 504-month sentence
imposed after jury trial conviction of conspiracy to distribute crack cocaine
and maintaining a residence for the purpose of distributing crack cocaine.
United States v. Morrow, No. 07-cr-40006-JPG (S.D. Ill. Mar. 3, 2008).1

Petitioner filed a direct appeal, challenging only his sentence. The Seventh Circuit
remanded the case for resentencing, instructing this Court to re-evaluate the sentencing
factors in 18 U.S.C. § 3553(a), including an analysis of Petitioner's health problems (loss
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Although the only topic of Morrow’s direct appeal, in which he was
represented by counsel, was his sentence, see United States v. Harris, 567
F.3d 846, 853 (7th Cir. 2009), Morrow’s second appeal, in which he
proceeded pro se after discharging his attorney, included additional grounds
related to his conviction. In denying Morrow’s pro se motion to supplement
his brief filed on February 4, 2009, the Seventh Circuit recognized that
Morrow wanted “to argue that his trial counsel was ineffective and that the
government forced cooperating witnesses to lie” but noted that “[b]ecause
determination of these issues would require examination of evidence not in
the trial record,” such issues “would be more appropriately raised in a
petition for writ of habeas corpus after the appellant has completed his direct
appeal.” See Doc. No. 1-1, p.1, Morrow v. United States, No. 08-1543 (7th
Cir. Feb. 10, 2009) (citing United States v. Brooks, 125 F. 3d 484, 495 (7th
Cir. 1997)).
In affirming Morrow’s sentence, the Seventh Circuit found no merit in
any of Morrow’s challenges to his resentencing and noted that the majority
of the issues raised concerned Morrow’s conviction which fall outside the

of his leg and other complications from diabetes) as they relate to these factors. United
States v. Harris, 567 F.3d 846, 854–55 (7th Cir. 2009) (Petitioner's appeal was
consolidated with those of his two co-defendants). Petitioner was resentenced on March
11, 2010, and was again sentenced to 504 months.

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scope of appellate review since they could have been raised in his first appeal.
United States v. Morrow, 418 Fed. App’x 537, 539 (7th Cir. 2011).
On August 8, 2011, Morrow filed a pro se Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody
raising nine grounds for relief. Morrow v. United States, No. 11-cv-675-JPG,
2012 WL 1565645 (S.D. Ill. May 2, 2012) (order directing Government to file
a response to the § 2255 motion). In directing service of the pro se motion,
the sentencing court recognized that the appellate court, in finding that
Morrow’s issues fell outside the scope of appellate review, “instructed him
that these issues would be more appropriately raised in a § 2255 motion.” Id.
at *2.
In the § 2255 motion, petitioner alleged, among other things, that he
was denied a fair trial when the prosecutor introduced perjured testimony:
i.e. that the government introduced supposed perjured testimony of codefendant Dekal James, who was sentenced to 262 months after pleading
guilty and cooperating with the government. Morrow v. United States, No.
11-cv-675-JPG, 2013 WL 556391 (S.D. Ill. February 13, 2013). However, the
sentencing court held that Morrow had defaulted on this claim by failing to
raise it on direct appeal, and that Morrow had not shown good cause or
prejudice for failing to raise such claim on direct appeal. Id. In response to
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Morrow’s contention that he was not permitted to raise this issue on appeal,
the sentencing court noted that Morrow had a total of 4 attorneys throughout
the underlying proceedings and that he did not allege that attorney Kister
(who filed the initial, direct appeal) was ineffective. Id. The sentencing court
declined to issue a certificate of appealability. Id.
Morrow appealed the denial of his § 2255 motion and the Seventh
Circuit found no substantial showing of the denial of a constitutional right
and denied the request for a certificate of appealability. See Morrow v.
United States, No. 13-470 (7th Cir. July 11, 2013). Morrow’s petition for
rehearing was denied, Morrow v. United States, No. 13-470 (7th Cir. July 11,
2013), and the Supreme Court denied Morrow’s petition for a writ of
certiorari. Morrow v. United States, 134 S. Ct. 832 (2013).
Having unsuccessfully filed a Section 2255 petition, Morrow filed a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. See Morrow
v. Grondolsky, No. 17-11634-WGY (dismissed December 22, 2017), appeal
filed, No. 18-1081 (1st Cir. Jan. 22, 2018).

The 2017 petition alleged

prosecutorial misconduct; specifically that the government presented
perjured testimony and “failed to disclose a deal” not to prosecute Dekal
James’s mother. See ECF No. 1, Petition for a Writ of Habeas Corpus under
28 U.S.C. § 2241, Morrow v. Grondolsky, No. 17-11634-WGY, at 6-7 (D.
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Mass. Aug 24, 2017). Morrow’s 2017 petition was dismissed for (1) lack of
jurisdiction to entertain a second or successive petition under § 2255; and
(2) lack of subject matter jurisdiction to consider under § 2241 an out-ofdistrict conviction.

See Morrow v. Grondolsky, No. 17-11634-WGY

(dismissed December 22, 2017), appeal filed, No. 18-1081 (1st Cir. Jan. 22,
2018).

On January 9, 2018, Morrow’s motion for reconsideration was

denied. Id.
Less than two months later, Morrow filed the instant action. The
petition is not signed nor dated. See ECF No. 1. Petitioner again alleges that
his constitutional right to a fair trial was violated by the government’s failure
to disclose an agreement with co-defendant Dekal James. Id. Morrow
contends that his remedy under § 2255 is inadequate and ineffective to
challenge his conviction on a Brady claim and that the instant action is his
“first opportunity to receive judicial rectification.” Id. at p. 20.
STANDARD OF REVIEW
A federal prisoner may challenge the legality of his sentence through a
writ of habeas corpus under section 2241 pursuant to the “savings clause” of
Section 2255. The savings clause states, in relevant part:
An application for a writ of habeas corpus . . . shall not be entertained
if it appears that the applicant has failed to apply for relief, by motion,
to the court which sentenced him, or that such court has denied him
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relief, unless it also appears that the remedy by motion is inadequate
or ineffective to test the legality of detention.
28 U.S.C. § 2255(e) (emphasis added).
A Section 2255 motion is not “inadequate or ineffective” merely
because a petitioner cannot meet the second or successive requirements.
United States v. Barrett, 178 F.3d 34, 50 (1st Cir. 1999). For this Court to
have jurisdiction under the savings clause, Morrow must be able to either (1)
“prove his actual innocence on the existing record” and that he “could not
have effectively raised his claim of innocence at an earlier time,” Barrett, 178
F.3d at 52 (internal quotation marks and citations omitted); or (2) prove that
a “complete miscarriage of justice” would result if the petition is denied.
Calvache v. Benov, 183 F. Supp. 2d 124, 127 (D. Mass. 2001) (citations
omitted).

Recourse to the savings clause is permitted only when “the

configuration of section 2255 is such ‘as to deny a convicted defendant any
opportunity for judicial rectification,’” or when compliance with the
procedure of § 2255 would result in a “complete miscarriage of justice.”
Trenkler v. United States, 536 F.3d 85, 99 (1st Cir.2008) (quoting In re
Davenport, 147 F.3d 605, 608 (7th Cir.1998); In re Dorsainvil, 119 F.3d 245,
251 (3rd Cir.1997)). “Most courts have required a credible allegation of
actual innocence to access the savings clause.” Id.

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Even if the savings clause applies, as Morrow contends, “procedurally
defaulted claims falling within the savings clause of § 2255” must meet a
“cause and prejudice” standard. Sustache–Rivera v. United States, 221 F.3d
16, 17 (1st Cir. 2000). Under that standard, the petitioner must show (1)
cause for failing to make his claim earlier and (2) that he suffered actual
prejudice from the errors of which he complains. United States v. Frady,
456 U.S. 152, 168 (1982).
DISCUSSION
Here, Morrow again contends that co-defendant Dekal James agreed
to testify only after the government threatened to prosecute James’ mother.
He contends that the government’s failure to disclose this information to his
defense, or to the jury, amounts to a Brady violation or prejudice from a
Brady violation.
Morrow complains that the Seventh Circuit directed him to raise his
fair trial claim in a habeas petition after completing his direct appeal, but the
sentencing court held that the issue was procedurally barred due to Morrow’s
failure to raise on direct appeal. Morrow contends that the Seventh Circuit
“is the cause and prejudice of why the Petitioner didn’t raise this issue on
direct appeal.” See Doc. No. 1, p 25. In support of his argument, Morrow
references Lacase v. Warden, Louisiana Correctional Institute for Women,
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645 F.3d 729 (5th Cir. 2011) for the proposition that because there was a
Brady violation, there was a reasonable probability that disclosure of an
agreement between the prosecution and a codefendant would have produced
a different result. ECF No. 1, p. 16.
Although Morrow attributes to the Seventh Circuit his failure to assert
a Brady violation on appeal, the record shows that Morrow’s first direct
appeal, filed by counsel, did not raise the issue. His first direct appeal simply
challenged the sentence imposed in light of Morrow’s particular health
problems. In considering his § 2255 motion, the sentencing court held that
his fair trial claims are procedurally defaulted because he failed to raise them
on direct appeal.
Even if Morrow could identify sufficient cause to justify collateral
review of the procedurally defaulted claim, he cannot show prejudice. In
light of the extensive evidence against Morrow, even if the government
disclosed the agreement with codefendant Dekal James, there is not a
reasonable probability that Morrow would not have been convicted. Morrow
does not come close to satisfying the cause and prejudice test.
ORDER
For the foregoing reasons, the petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2241 is DENIED.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE 

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