MORTON v. PERRY
Filing
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MEMORANDUM OPINION AND ORDER signed by JUDGE CATHERINE C. EAGLES on 10/01/2015. Petitioner's habeas petition 1 is denied. IT IS THEREFORE ORDERED that respondent's motion for summary judgment 8 is GRANTED. It is further ORDERED that the petitioner's motions to appoint counsel 13 and 19 are DENIED in the Court's discretion and his motions to exceed page limit 15 and 20 are GRANTED. (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DONNIE GEORGE MORTON,
Petitioner,
v.
FRANK L. PERRY,
Respondent.
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1:15-CV-319
MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
Petitioner Donnie Morton contends his convictions for robbery with a dangerous
weapon and possession of a firearm by a felon were obtained in violation of his
constitutional rights. He raises six challenges to his state court convictions, (Doc. 1),
none of which establish grounds for relief. This Court will deny his habeas petition.
FACTS
In August 2012, Mr. Morton was convicted by a jury in Cabarrus County Superior
Court of robbery with a dangerous weapon and possession of a firearm by a felon. (Doc.
1 at 1; Doc. 10-2 at 55-56.) He also pleaded guilty to having habitual felon status, (Doc.
1 at 1; Doc. 10-2 at 64-67), and was sentenced to 116 to 149 months in the custody of the
N.C. Department of Corrections. (Doc. 10-2 at 70-71.) On appeal, the North Carolina
Court of Appeals found no error, State v. Morton, No. COA13-146, 2013 WL 6236922
(N.C. Ct. App. Dec. 3, 2013) (unpublished disposition); (Doc. 1 at 19-29), and the North
Carolina Supreme Court denied review. 367 N.C. 494, 757 S.E.2d 901 (2014); (Doc. 1 at
30.) After state courts denied two Motions for Appropriate Relief (“MAR”), (Doc. 1 at
31-32, 34), Mr. Morton filed this petition pursuant to 28 U.S.C. § 2254. (Doc. 1 at 1.)
Mr. Morton raises six grounds for relief. (Id. at 12-18.)
BACKGROUND
The Antiterrorism and Effective Death Penalty Act (“AEDPA”), “erects a
formidable barrier to federal habeas relief for prisoners whose claims have been
adjudicated in state court.” Burt v. Titlow, 134 S. Ct. 10, 16 (2013). “Federal judges are
required to afford state courts due respect by overturning their decisions only when there
could be no reasonable dispute that they were wrong. Federal habeas review thus exists
as a guard against extreme malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through appeal.” Woods v. Donald, 135 S. Ct.
1372, 1376 (2015) (citations and quotations omitted).
When a state court has adjudicated a petitioner’s claim on the merits, federal
habeas courts may not grant relief unless the decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” or “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 also Brandt v. Gooding, 636 F.3d 124, 132 (4th Cir. 2011).
PETITIONER’S CLAIMS
1.
Actual Innocence
While the Supreme Court has not definitively rejected stand-alone habeas claims
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based on actual innocence, it seems unlikely such a claim exists.1 Even if actual
innocence does constitute an independent basis for habeas relief, the Supreme Court “has
made clear that the threshold for any hypothetical freestanding innocence claim is
extraordinarily high.” Teleguz v. Pearson, 689 F.3d 322, 328 n.2 (4th Cir. 2012)
(alteration and quotation marks omitted) (quoting House v. Bell, 547 U.S. 518, 555
(2006)). Assuming arguendo that a freestanding actual-innocence claim is cognizable
and it is not procedurally blocked in this case,2 Mr. Morton has not met this burden.
Mr. Morton maintains that his conviction for robbery with a firearm is a
fundamental miscarriage of justice because Jamie Lynn Burris committed the robbery.
(Doc. 1 at 12.) Mr. Morton contends because the eyewitness testimony and surveillance
video indicated only one robber, Mr. Burris’s previous guilty plea and sentence for the
robbery should have precluded Mr. Morton’s conviction on the same charges. (Id., relying
on Doc. 1 at 39-44.)
The record does not support Mr. Morton’s arguments. Mr. Burris pleaded guilty to
common law robbery and conspiracy to commit armed robbery, (Doc. 1 at 40), which is not
inconsistent with Mr. Morton’s guilt. Rather, it supports the conclusion that Mr. Burris and
Mr. Morton were engaged in a conspiracy to rob the drug store in question.
1
See McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013) (“We have not resolved whether a
prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence.”).
Other courts have explicitly held that such claims may not be brought in a habeas proceeding.
See, e.g., Fielder v. Varner, 379 F.3d 113, 122 (3d Cir. 2004); In re Swearingen, 556 F.3d 344,
348 (5th Cir. 2009) (per curiam).
2
Mr. Morton did not raise an actual innocence claim until his second MAR, (see Doc. 10-9 at
3), and the state court judge found it was procedurally defaulted. (Doc. 1 at 34.) Mr. Morton has
not offered any explanation for why he did not raise this argument in his first MAR.
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Moreover, the evidence against Mr. Morton was quite strong. At trial, the lead
detective testified that a confidential informant told officers that Mr. Morton, Mr. Burris,
and Mr. Morton’s girlfriend, Stephanie Young, were involved. (Doc. 10-13 at 24-25.) The
owner of the drug store testified that she was “a hundred percent sure” Mr. Morton was the
robber, because she had seen him previously as a customer of the pharmacy. (Doc. 10-12 at
106.) Another witness testified he saw a unique car, later identified as belonging to Ms.
Young, drive by the pharmacy twice on the evening of the robbery. (Doc. 10-12 at 176;
Doc. 10-13 at 25, 32.) The detective testified that Ms. Young provided information to the
detective that led to two search warrants, one for Mr. Burris’s residence and one for the
residence Mr. Morton and Ms. Young shared. (Doc. 10-13 at 26-28.) When detectives
searched Mr. Morton’s residence, they found a small silver revolver on the living room
coffee table very near Mr. Morton, and an eyewitness recognized the firearm from the
robbery. (Id. at 30, 116.) Evidence about the height of the robber was inconsistent with
Mr. Burris’s height. (Id. at 19-20, 109.) The jury heard evidence that Mr. Morton
identified Mr. Burris as the person who went into the store wearing the gray hoodie, and
it rejected that evidence. (Id. at 75.)
Mr. Burris’ guilty plea is not inconsistent with Mr. Morton’s guilty plea, and the
evidence against Mr. Morton was strong. Mr. Morton has not shown actual innocence.
2.
Ineffective Assistance of Counsel
To establish a claim for ineffective assistance of counsel, a habeas petitioner must
demonstrate (1) that counsel’s performance was deficient, which requires “errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
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Sixth Amendment,” and (2) that “the deficient performance prejudiced the defense,”
meaning there was a reasonable probability of a different result but for counsel’s
deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). “A
fair assessment of attorney performance requires that every effort be made to eliminate
the distorting effects of hindsight.” Id. at 689. For habeas petition claims of ineffective
assistance of counsel, “AEDPA review must be doubly deferential in order to afford both
the state court and the defense attorney the benefit of the doubt.” Woods, 135 S. Ct. at
1376 (citations and quotations omitted).
Mr. Morton contends that he received ineffective assistance of trial counsel
because his attorney did not present any evidence that Mr. Burris committed the robbery,
failed to file a motion to suppress identification testimony by the victim, failed to present
expert testimony about the fallibility of identification evidence, failed to interview any
witnesses, and various other alleged errors. (Doc. 1 at 13-14.) Mr. Morton raised these
claims in his first MAR, (Doc. 10-6 at 14-22), and they were denied by the state court
because Mr. Morton was in a position to raise these issues in his previous direct appeal
and did not do so. (Doc. 1 at 31-32.)
While some North Carolina courts have held that an MAR “is preferable to direct
appeal” for ineffective assistance of counsel allegations, State v. Stroud, 147 N.C. App.
549, 554, 557 S.E.2d 544, 547 (2001) (citing State v. Buckner, 351 N.C. 401, 412, 527
S.E.2d 307, 314 (2000)), in cases where the ineffective assistance of counsel claims can
be decided based on the record alone, they may be appropriately resolved on direct
appeal. State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001); see also State v.
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Blakeney, 352 N.C. 287, 308, 531 S.E.2d 799, 815 (2000). North Carolina law “requires
North Carolina courts to determine whether the particular claim at issue could have been
brought on direct review.” Fair, 354 N.C. at 166, 557 S.E.2d at 525 (citation and
quotation marks omitted). Mr. Morton’s conclusory allegations of ineffective assistance
are insufficient to overcome the deference owed to the state court’s decision that there
was a procedural default in the ineffective assistance claims.
In any event, and even if the state court’s decision that the ineffective assistance
claims could have been raised on direct appeal was incorrect, the Court has reviewed Mr.
Morton’s ineffective assistance claim in light of the record and finds no basis for relief.
The trial transcript reveals that Mr. Morton’s lawyer presented a competent defense.
Counsel filed a motion to dismiss on speedy trial grounds and presented evidence and
case law in support of that motion. (Doc. 10-12 at 7-44.) When the trial court ruled
against Mr. Morton, his lawyer made an additional attempt to clarify his argument “in an
effort to preserve the record.” (Id. at 45-46.) Counsel also filed a motion to suppress the
fruits of a search warrant based on a misstatement of fact in the application. (Doc. 10-13
at 10-13.) He extensively cross-examined the primary victim to emphasize the limited
nature of her contact with the robber, the circumstances inhibiting accurate identification,
and her prior inconsistent statements. (Doc. 10-12 at 127-159.) During crossexamination, he obtained testimony from another victim that she could not identify the
defendant as the robber, (Id. at 170-72), and an instruction from the Court to disregard
her earlier identification. (Doc. 10-13 at 6-7, 14-15.) He regularly objected at
appropriate times. (E.g., Doc. 10-12 at 102, 117-18, & 177; Doc. 10-13 at 19, 21, & 24.)
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He cross-examined the lead detective about Mr. Burris’s potential role and other
circumstances undermining the evidence of Mr. Morton’s guilt, (Doc. 10-13 at 82-108),
including emphasizing Mr. Morton’s statement that Mr. Burris was the one who went
into the pharmacy. (Id. at 99.) The record reflects that Mr. Morton’s attorney provided
competent representation well within the constitutional range, and Mr. Morton has not
provided evidence to the contrary.
3.
Due Process
Mr. Morton contends that the trial court violated his constitutional rights by
granting the jury’s request to have Mr. Morton approach the jury box to view his eyes
during jury deliberations, after the close of all the evidence. (Doc. 1 at 15.) This claim
is without merit. First, Mr. Morton consented to the jury’s request that they get a closer
look at his eyes. (Doc. 10-13 at 158-59.) Additionally, the claim is procedurally
defaulted because he could have raised this claim on direct appeal and did not do so.
(See Doc. 10-3.) Finally, though Mr. Morton cites a number of cases in his brief, (Doc.
17 at 21-22), none support his argument that approaching the jury box to allow jurors to
view his eyes violated his right to due process.3 To the extent he contends that the
3
In United States v. Santana, 175 F.3d 57, 63-65 (1st Cir. 1999), the court held that allowing
the jury to view the defendant’s ears after the close of all evidence, when his ears had been
hidden from view for the duration of trial by interpreter headphones, amounted to allowing the
jury to consider extrinsic information, and, as such, was error per se. However, other courts to
consider similar arguments have come to different conclusions. E.g., Washington v. United
States, 881 A.2d 575, 582 (D.C. 2005) (allowing the jury to examine the defendant’s facial
profile up close and at multiple angles did not constitute “new evidence.” “A contrary holding
might well disadvantage those jurors with poor vision, especially where the sole issue at trial is
the identification of the assailant.”). The other cases Mr. Morton cites deal with submission to
the jury of evidence or documents that were never entered into evidence and do not support his
argument. (See Doc. 17 at 21, citing United States v. Hans, 738 F.2d 88 (3d Cir. 1984); Virgin
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procedural bar should be excused because he is actually innocent, that claim is without
merit for the reasons stated supra.
4.
Brady Error
Mr. Morton contends that the prosecutor violated his constitutional rights by
failing to disclose evidence favorable to him. (Doc. 1 at 16.) However, in his
argument, he complains only that the trial court did not allow a law enforcement witness
to testify about Mr. Burris’s conviction for the same crime. (See id.) The admission or
exclusion of evidence in a state criminal trial is not cognizable on federal habeas
review, absent a specific constitutional violation or fundamental unfairness, neither of
which occurred here. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
This claim is also procedurally barred, as it could have been raised on direct
appeal and was not. See Spencer v. Murray, 5 F.3d 758, 762 (4th Cir. 1993); (Doc. 103.) To the extent Mr. Morton asserts that the procedural bar should be excused because
he is actually innocent, that argument is without merit for the reasons stated supra.
5.
Evidence Errors
Mr. Morton contends that the trial court erred by overruling his objection to the
admission of bond documents that were admitted for the purpose of connecting him to
Ms. Young and to the scene of the crime. (Doc. 1 at 16-17.) He raised this claim on
direct appeal, where it was denied by the North Carolina Court of Appeals. Morton, 2013
WL 6236922, at *3-4; (see also Doc. 1 at 24-26.) As noted supra, evidence errors are
Islands v. Joseph, 685 F.2d 857 (3d Cir. 1982); Dallago v. United States, 427 F.2d 546 (D.C.
Cir. 1969); and United States v. Vasquez, 597 F.2d 192 (9th Cir. 1979).)
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not cognizable on habeas review, and, in any event, the Court of Appeals’ decision was
not contrary to clearly established law.
6.
Speedy Trial
Mr. Morton contends that he was denied his right to a speedy trial. (Doc. 1 at 1718.) Mr. Morton raised this claim on direct appeal, where it was rejected by the North
Carolina Court of Appeals. Morton, 2013 WL 6236922, at *4; (see also Doc. 1 at 2628.) Mr. Morton has not shown that this decision was contrary to clearly established law,
that it involved an unreasonable application of clearly established federal law, or that it
was based on an unreasonable determination of the facts. See § 2254(d). The state court
decision is entitled to deference, and Mr. Morton has not established grounds for relief.
CONCLUSION
Mr. Morton has not shown that any of the relevant state court decisions were
contrary to or an unreasonable application of clearly established federal law, nor has he
shown that these decisions were based on an unreasonable determination of the facts in
light of the evidence. See § 2254(d). Accordingly, his habeas petition is denied.
IT IS THEREFORE ORDERED that the respondent’s motion for summary
judgment, (Doc. 8), is GRANTED. Upon consideration, it is further ORDERED that
the petitioner’s motions to appoint counsel, (Docs. 13, 19), are DENIED in the Court’s
discretion and his motions to exceed page limit, (Docs. 15, 20), are GRANTED.
This the 1st day of October, 2015.
__________________________________
UNITED STATES DISTRICT JUDGE
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