Morris v. Stewart

Filing 8

MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING PETITIONER A CERTIFICATE OF APPEALABILITY Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

NICOLE V. MORRIS,
Petitioner,
v.

Case No. 16-12026
HON. AVERN COHN

ANTHONY STEWART,
Respondent.
________________________________/
MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING PETITIONER A CERTIFICATE OF APPEALABILITY
I. Introduction
This is a habeas case under 28 U.S.C. § 2254. Nicole Morris, (“Petitioner”),
proceeding pro se, was convicted by a jury of armed robbery, M.C.L. 750.529, and
assault with a dangerous weapon. M.C.L. § 750.82. She was sentenced as a third-time
habitual felony offender to concurrent terms of 10-to-18 years for the robbery conviction
and 1-to-4 years for the assault conviction.
The petition raises two claims: (1) the trial court erred in denying Petitioner’s
request for substitute counsel after there was a break-down in the attorney-client
relationship, and (2) Petitioner was denied the effective assistance of counsel where her
attorney failed to present the testimony of a defense witness and failed to investigate
Petitioner’s criminal history. For the reasons that follow, the petition will be denied for
lack of merit.

II. Background
The Court recites verbatim the relevant facts relied upon by the Michigan Court
of Appeals which are presumed correct on habeas review pursuant to 28 U.S.C. §
2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
In April 2013, defendant stole a bottle of wine from a party store in
Detroit. When the store owner confronted her about her theft, and asked
her to return the wine, defendant pulled out a box cutter and cut the
owner's finger. The owner went to the hospital and received stitches for
the cut.
People v. Morris, No. 318678, 2015 WL 2144867, at *1 (Mich. Ct. App. May 7, 2015).
Following her conviction, Petitioner moved for a new trial or resentencing on the
grounds she was sentenced based on inaccurate information and had ineffective
assistance of counsel. The trial court corrected the sentencing error as to her habitual
status and held an evidentiary hearing under People v. Ginther, 390 Mich. 436 (1973)
on trial counsel’s alleged ineffectiveness, after which it denied relief.
Petitioner appealed, presenting the same claims raised on habeas review. The
Michigan Court of Appeals rejected the claims on the merits. Id. The Michigan
Supreme Court denied leave to appeal in a standard order. People v. Morris, 489 Mich.
921 (2015) (unpublished table decision).
III. Standard of Review
28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim–
(1)

resulted in a decision that was contrary to, or
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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.
A decision of a state court is “contrary to” clearly established federal law if the
state court arrives at a conclusion opposite to that reached by the Supreme Court on a
question of law or if the state court decides a case differently than the Supreme Court
has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 40506 (2000). An “unreasonable application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the facts of a prisoner’s case.”
Id. at 409. A federal habeas court may not “issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly.” Id. at 410-11. “[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, 562 U.S. 86, 101 (2011)(citing Yarborough v. Alvarado, 541 U.S.
652, 664 (2004)). Therefore, in order to obtain habeas relief in federal court, a state
prisoner is required to show that the state court’s rejection of his or her claim “was so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S.
at 103. A habeas petitioner should be denied relief as long as it is within the “realm of
possibility” that fairminded jurists could find the state court decision to be reasonable.
See Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016).
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IV. Petitioner’s Claims
A. Substitute Counsel
1.
Petitioner first contends that the trial court erred in denying her request to
discharge her court-appointed attorney on the morning of trial and denying trial
counsel’s motion to withdraw. She further says that the trial court failed to adequately
inquire about the nature of the dispute with trial counsel before deciding to proceed
with jury selection and trial.
The Sixth Amendment right to the assistance of counsel includes a qualified
“right to be represented by counsel of one’s own choice.” Linton v. Perini, 656 F.2d
207, 208 (6th Cir. 1981). “[T]he right to counsel of choice does not extend to
defendants who require counsel to be appointed for them.” United States v.
Gonzalez-Lopez, 548 U.S. 140, 151, 126 S. Ct. 2557, 2565, 165 L. Ed. 2d 409 (2006).
“[T]hose who do not have the means to hire their own lawyers have no cognizable
complaint so long as they are adequately represented by attorneys appointed by the
courts.” Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989).
A trial court has “wide latitude in balancing the right to counsel of choice against
the needs of fairness and against the demands of its calendar.” Gonzalez-Lopez, 548
U.S. at 152 (internal and end citations omitted). Factors to consider when reviewing a
request for substitute counsel include: “the timeliness of the motion; the adequacy of
the court’s inquiry into the defendant's complaint; and the asserted cause for that
complaint, including the extent of the conflict or breakdown in communication between
lawyer and client . . . .” Martel v. Clair, 565 U.S. 648, 132 S. Ct. 1276, 1287 (2012).
4

When evaluating the extent of the conflict between the defendant and his attorney, a
court may consider whether the conflict “was so great that it resulted in a total lack of
communication preventing an adequate defense.” United States v. Mack, 258 F.3d
548, 556 (6th Cir. 2001).
2.
Here, the record shows that trial counsel, on the morning of trial, informed the
trial court that Petitioner just informed her that she wished to discharge her. Trial
counsel then moved to withdraw. The point of contention was trial counsel’s failure to
show Petitioner the security camera footage of the crime. The trial court denied the
request to withdraw and Petitioner’s request for substitute counsel. Before jury
selection began, the entire videotape was played for Petitioner.
The Michigan Court of Appeals cited and relied on these facts as constituting an
adequate justification for denying Petitioner’s last-second request for substitute
counsel, explaining:
Here, defendant unconvincingly argues that the trial court abused
its discretion when it denied defense counsel’s motion to withdraw, and
did not allow defendant the opportunity to explain why she wanted a new
attorney. There is no indication that “defendant ha[d] a legitimate reason”
to request a new attorney. Echavarria, 233 Mich. App. at 369. Defense
counsel’s statement that defendant’s communications with her had been
“erratic,” and defendant’s claim that she had not seen the surveillance
video before the morning of the trial do not show that a “bona fide
dispute” or breakdown in the attorney-client relationship occurred
between defendant and defense counsel. Id. Nor does it show a
“legitimate difference of opinion develop[ed] between a defendant and
[defense] counsel with regard to a fundamental trial tactic,” Strickland,
293 Mich. App. at 397 (internal quotation marks and citations omitted).
Moreover, defendant’s decision to ask for a new defense attorney
on the morning of trial indicates that she was either negligent, or simply
wanted “to delay trial.” Id. Defense counsel indicated that she would have
5

informed the court of defendant’s interest in new representation at an
earlier date had defendant informed her of that interest. And, in any
event, defendant has failed to demonstrate that the trial court’s denial of
her attorney’s motion to withdraw prejudiced her in any way. Echavarria,
233 Mich. App. at 369. The trial court permitted defendant and defense
counsel to watch the surveillance video together before the prosecution
presented its case. And the prosecution also presented overwhelming
evidence of defendant’s guilt, including the surveillance video, and
eyewitness testimony from the party-store owner and one of his
employees.
Accordingly, the trial court did not abuse its discretion when it
denied defense counsel’s motion to withdraw because its decision did not
“fall[] outside the range of reasonable and principled outcomes.”
Strickland, 293 Mich. App. at 393.
Morris, 2015 WL 2144867, at *1-2 (footnotes omitted).
The court of appeals’ decision constituted a reasonable application of clearly
established federal law. Petitioner’s request for new counsel was untimely because it
was made on the first day of trial. Petitioner offered no reason to the trial court or the
Court why she did not bring her dissatisfaction with trial counsel court earlier. In
addition, decisions from the Court of Appeals for the Sixth Circuit applying federal law
involving requests for new counsel before trial further support the conclusion reached
by the Michigan Court of Appeals. See United States v. Watson, 620 F. App’x 493,
2015 WL 5000651, at *5 (6th Cir. 2015) (district court did not err in denying motion for
substitute counsel where request was untimely made nineteen days before trial);
United States v. Fonville, 422 F. App’x 473, 480 (6th Cir.2011) (twenty-two day delay in
request for substitute counsel held untimely). As such, Petitioner is not entitled to
habeas relief on her first claim.
B. Ineffective Assistance of Counsel
1.
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In her second claim, Petitioner contends that she was denied the effective
assistance of counsel when trial counsel failed to interview and call an eyewitness,
Lakeisha Strauther, who she says would have testified favorably for the defense.
Lakeisha was the niece of Kenneth Strauther, the man who accompanied Petitioner to
the party store at the time of the robbery. Petitioner also says that trial counsel was
ineffective for failing to challenge the incorrect fourth-time habitual felony offender
sentencing enhancement prior to trial.
Ineffective-assistance claims are reviewed under the two-part test of Strickland
v. Washington, 466 U.S. 668 (1984). Strickland requires a defendant to show that
counsel’s performance was deficient and that the deficient performance prejudiced the
defense such that the defendant was denied a fair trial. Id. at 687. Counsel is “strongly
presumed to have rendered adequate assistance and made all significant decisions in
the exercise of reasonable professional judgment.” Id. at 690. The test for prejudice is
whether “there is a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different.” Id. at 694. Significantly, on
habeas review, the question becomes “not whether counsel’s actions were
reasonable,” but “whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Harrington v. Richter, 562 U.S. 86, 105 (2011).
2.
Regarding the sentencing and trial counsel’s alleged failure to investigate
Petitioner’s criminal history, any deficiency did not result in Strickland prejudice.
Petitioner’s habitual offender status was corrected when the error was uncovered by
appellate counsel, and Petitioner was resentenced based on the correct record as a
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third-time habitual felony offender. Moreover, as the Michigan Court of Appeals found:
It is unclear whether defense counsel investigated the prior convictions alleged
on defendant's felony information. However, her supposed failure to do so is
inconsequential, because defendant cannot show that the outcome of her trial
would have been different but for her attorney's conduct. Heft, 299 Mich.App at
80–81. Again, the prosecution presented overwhelming evidence of defendant's
guilt, and testimony from defendant, or an accurate felony information, would not
have disproved or created doubt regarding the prosecution's case. The trial
court was therefore correct in denying relief on this ground.
Morris, 2015 WL 2144867 at *3. Overall, Petitioner is not entitled to habeas relief on
this ground.
3.
As to trial counsel’s alleged failure to investigate and interview witnesses, the
trial court held an evidentiary hearing on these allegations. At the hearing, trial counsel
testified that she watched the entire video with Petitioner before trial. She also testified
that Petitioner did not point out anyone in the video as a potential defense witness.
Trial counsel further testified that she viewed the video multiple times in preparation for
trial and that she attempted to e-mail it to Petitioner who was on bond pending trial.
Trial counsel also stated she spoke with Petitioner several times on the phone before
trial, but Petitioner appeared to be under the influence of controlled substances. Trial
counsel further testified that she did not recall Petitioner telling her about Lakeisha.
However, if Petitioner had told her about a witness who could offer relevant,
exculpatory evidence, she would have interviewed the witness.
Petitioner’s appellate counsel called Lakeisha as a witness. She testified that on
the date of the offense her attention was drawn to the party store because she knew
her uncle frequented it and he was prone to getting into trouble. She further testified
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that she saw a crowd of people outside the store, so she parked her car a few buildings
away from the store. Lakeisha then testified that after her uncle exited the store, she
drove closer and saw Petitioner tussling with the victims. Petitioner’s back was turned
towards her and there were several spectators surrounding Petitioner and the victims,
making it difficult to see if Petitioner had a weapon. Lakeisha also testified that she
heard one of the victims threaten to blow Petitioner’s head off. She also testified that
did not see anything fall from Petitioner and did not see a bottle of wine.
Based on this testimony, the trial court found that although trial counsel could
have done more in preparation for trial, Petitioner failed to establish prejudice. The trial
court found that Petitioner and trial counsel watched the video together before trial, and
that Petitioner was a difficult client who had not provided her attorney with the names
of any witnesses who were involved. The trial court also found that Lakeisha’s
testimony was of limited value because she was not inside the store during the
incident, and she could not see what was in Petitioner’s hand when she was outside of
the store. The trial court therefore concluded that Petitioner was not denied the
effective assistance of counsel.
The Michigan Court of Appeals agreed with the trial court’s decision, explaining:
Regarding the presentation of witnesses, defense counsel explained at
defendant's Ginther hearing that defendant did not provide her with any names
of potential witnesses, but that she would have spoken with one purported
witness, defendant's niece, had defendant mentioned the niece to her. However,
defendant fails to establish that her attorney's failure to call her niece as a
witness caused her prejudice. Defendant's niece did not witness anything that
occurred inside the store. During the altercation, she faced defendant's back,
and could not see whether defendant had a weapon in her hand, or used it to
cut a victim. It is thus unlikely that the niece's testimony would have otherwise
affected the outcome of the trial, and defense counsel did not provide defendant
with ineffective assistance.
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Morris, 2015 WL 2144867 at *3 (footnotes omitted).
The court of appeals’ conclusion is not based on an unreasonable determination
of the facts or contrary to Strickland. Simply put, it is not reasonably probable that
Petitioner would have prevailed at trial if Lakeisha testified in her defense. Habeas
relief is not warranted.
V. Conclusion
For the reasons stated above, the state courts’ rejection of Petitioner’s claims
did not result in decisions that were contrary to Supreme Court precedent, an
unreasonable application of Supreme Court precedent, or an unreasonable
determination of the facts. Accordingly, the petition is DENIED.
Furthermore, reasonable jurists would not debate the Court’s assessment of
Petitioner’s claims, nor conclude that the issues deserve encouragement to proceed
further. The Court therefore DECLINES to grant a certificate of appealability under 28
U.S.C. § 2253(c)(2).1 See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: March 28, 2017
Detroit, Michigan

1

“The district court must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C.
foll. § 2254.
10