Morris v. Bunting
Memorandum Opinion and Order Adopting Report and Recommendation 15 dismissing 1 Petition for Writ of Habeas Corpus (2254). Judge Christopher A. Boyko on 4/24/2017. (R,D)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
KEVIN D. MORRIS,
CASE NO. 1:15CV1796
JUDGE CHRISTOPHER A. BOYKO
MEMORANDUM OF OPINION
CHRISTOPHER A. BOYKO, J:
This matter comes before the Court on Petitioner Kevin D. Morris’ Petition under
28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF #1).
For the following reasons, the Court accepts and adopts the Magistrate Judge’s Report
and Recommendation and dismisses Petitioner’s Petition.
The following is a factual synopsis of Petitioner’s claims. The Magistrate Judge’s
Report and Recommendation, adopted and incorporated, provides a more complete and
detailed discussion of the facts.
In 2013, a jury convicted Petitioner of one count of Trafficking in Heroin, two
counts of Possession of Criminal Tools and one count of Possession of Heroin. Each
count carried a Forfeiture Specification. On May 28, 2013, Petitioner was sentenced to
concurrent terms of nine months of imprisonment on each of the Trafficking and
Possession of Criminal Tools charges and six years of imprisonment for the Possession
of Heroin charge. The sentence was to be served consecutive to a two-year sentence
Petitioner received after having pleaded guilty to Cocaine Trafficking and Possession.
The aggregate sentence was eight years of imprisonment.
On June 11, 2013, Petitioner filed an Appeal in the Ohio Court of Appeals. The
court sua sponte consolidated Petitioner’s Appeals of his Heroin and Cocaine
convictions. On October 3, 2013, Petitioner filed a Motion for Leave to File a Motion for
a New Trial Pursuant to Ohio Crim. R. 33. On October 9, 2013, the trial court denied
the Motion for lack of jurisdiction due to the pending Appeal.
On February 12, 2014, Petitioner again filed a Motion for Leave to File a Motion
for a New Trial with the trial court. Upon Petitioner’s request, the Ohio Court of
Appeals stayed the Appeal and remanded the case to the trial court. The trial court
then granted leave to file the Motion for New Trial. Petitioner filed the Motion on March
24, 2014. The trial court denied the Motion for New Trial on April 23, 2014.
On September 30, 2014, the Court of Appeals affirmed the trial court’s judgment.
On November 14, 2014, Petitioner filed an Appeal with the Supreme Court of Ohio. On
March 25, 2015, the Supreme Court of Ohio declined to accept jurisdiction of the case.
Petitioner filed the instant Petition on September 3, 2015, asserting two grounds
GROUND ONE: Insufficient evidence to support conviction in violation of
the %th [sic] 5th and 14th amendments. [sic]
GROUND TWO: State used dirty CI to obtain conviction and the court
would not hold a hearing on a new trial motion with this new evidence
violating 5th and 4th amends. [sic]
On September 9, 2015, this Court referred Petitioner’s Petition to the
Magistrate Judge for a Report and Recommendation. Petitioner filed a Reply to
Respondent’s Answer challenging for the first time his Trafficking conviction.
Respondent filed a Sur-Reply arguing that Petitioner’s challenge to his Trafficking
charge is procedurally barred from habeas corpus review. On January 19, 2017, the
Magistrate Judge issued his Report and Recommendation. Petitioner filed his
Objections to the Magistrate’s Report and Recommendation on March 17, 2017.
STANDARD OF REVIEW
When a federal habeas claim has been adjudicated by the state courts, 28
U.S.C. § 2254(d)(1) provides the writ shall not issue unless the state decision “was
contrary to, or involved an unreasonable application of, clearly established federal law
as determined by the Supreme Court of the United States.” Further, a federal court may
grant habeas relief if the state court arrives at a decision opposite to that reached by the
Supreme Court of the United States on a question of law, or if the state court decides a
case differently than did the Supreme Court on a set of materially indistinguishable
facts. Williams v. Taylor, 529 U.S. 362, 405-406 (2000). The appropriate measure of
whether or not a state court decision unreasonably applied clearly established federal
law is whether that state adjudication was “objectively unreasonable” and not merely
erroneous or incorrect. Williams, 529 U.S. at 409-411.
Pursuant to 28 U.S.C. § 2254(e)(1), findings of fact made by the state court are
presumed correct, rebuttable only by clear and convincing evidence to the contrary.
McAdoo v. Elo, 365 F. 3d 487, 493-494 (6th Cir. 2004). Finally, Rule 8(b)(4) of the
Rules Governing §2254 states:
A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made. A judge of the
court may accept, reject, or modify in whole or in part any
findings or recommendations made by the magistrate.
The Court agrees with the Magistrate Judge that Petitioner’s argument that there
was insufficient evidence to support his trafficking conviction was not presented to
Ohio’s appellate courts. Therefore, this argument is procedurally barred from habeas
corpus review. Additionally, Petitioner fails to establish cause and prejudice to excuse
the default or that the alleged constitutional violation resulted in the conviction of an
innocent individual. Murray v. Carrier, 477 U.S. 478, 496 (1986). In his Objections,
Petitioner now alleges ineffective assistance of appellate counsel for this failure.
Petitioner cannot now raise this claim in his Objections.
In Ground One, Petitioner contends that there was insufficient evidence to
support his Possession of Heroin conviction in violation of his Fifth and Fourteenth
Amendment rights. This issue was addressed by the Court of Appeals. The Court of
Appeals found that there was abundant circumstantial evidence presented at trial to
The Magistrate Judge points out that in a habeas corpus proceeding challenging
the sufficiency of the evidence, Petitioner is entitled to relief only if, based upon the
evidence presented, “no rational trier of fact could have found proof of guilt beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979). “Jackson claims
face a high bar in federal habeas proceedings because they are subject to two layers of
judicial deference.” Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012). “A reviewing
court may set aside the jury’s verdict on the ground of insufficient evidence only if no
rational trier of fact could have agreed with the jury.” Id. (quoting Cavazos v. Smith, 132
S. Ct. 2, 4 (2011)).
A Federal Court must decide if the Court of Appeals determination was
unreasonable in its conclusion. Federal courts must defer to the state appellate court’s
sufficiency determination as long as the determination is reasonable. 28 U.S.C. §
2254(d)(2); Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009) (“we must determine
whether the Ohio Court of Appeals itself was unreasonable in its conclusion that a
rational trier of fact could find Brown guilty beyond a reasonable doubt based upon
the evidence introduced at trial”).
The Court agrees that the Court of Appeals thoroughly evaluated the facts and
had sufficient reason for its determination and therefore, was not an unreasonable
application of clearly established federal law. Ground One is dismissed.
In Ground Two, Petitioner argues that his constitutional rights were violated
because the prosecution relied on the testimony of an informant who had previously
been convicted of tampering with evidence in another case. Petitioner raised this issue
on appeal. The Court of Appeals found that the issue of the confidential informant’s
illegal activity was not relevant to whether Petitioner sold him the heroin. There was
enough corroborative evidence to support the conviction.
The Court of Appeals addressed Petitioner’s claim that the prosecution
suppressed evidence regarding the informant’s criminal activity in violation of Brady v.
Maryland, 373 U.S. 83 (1963). “To assert a successful Brady claim, a habeas
petitioner must show that: (1) evidence favorable to the petitioner, (2) was suppressed
by the government, and (3) the petitioner suffered prejudice.” Johnson v. Bell, 525 F.3d
466, 475 (6th Cir. 2008) (citing Banks v. Dretke, 540 U.S. 668, 691 (2004)). “Brady
requires that the prosecution disclose evidence that may impeach the credibility of a
witness.” Wilson v. Parker, 515 F.3d 682, 701 (6th Cir. 2008) (citing Giglio v. United
States, 405 U.S. 150, 153–54 (1972)).
The Court of Appeals found that there was no merit to the claim that the
prosecution withheld exculpatory evidence. The informant’s charges for criminal
conduct occurred on the same date that the jury returned their verdict against Petitioner.
The Magistrate Judge concluded that Petitioner’s claims that the prosecutor withheld
that information is a factual impossibility. The evidence which Petitioner relies upon to
seek relief did not exist until after the conclusion of his case, making it impossible for
the prosecution to have suppressed this evidence. In his Objections, Petitioner alleges
that the prosecutor asked the county to wait to file charges until after Petitioner’s trial.
There is no basis for this allegation. The Court agrees with the Magistrate Judge that
Petitioner has not established a claim of prosecutorial misconduct.
Petitioner contends that the trial court erred in denying him an evidentiary
hearing on his Motion for a New Trial. Petitioner sought a new trial to put forth the
evidence that the informant had criminal activity that affected his credibility. The Court
of Appeals addressed this claim and agreed with the trial court that the newly
discovered evidence would not have changed the outcome of the trial and did not affect
the informant’s testimony.
The Magistrate Judge points out that Petitioner did not present this argument as
a violation of federal law and therefore, was not fairly presented to the state courts of
Ohio. Ordinarily, a state prisoner does not “fairly present” a claim to a state court if the
petition, brief, or document does not alert the court “to the presence of a federal claim in
order to find material, such as a lower court opinion in the case, that does so.” Baldwin
v. Reese, 541 U.S. 27, 32 (2004). The Court finds that Petitioner has procedurally
defaulted this claim and fails to establish cause and prejudice to excuse the default.
Petitioner has failed to show that the Court of Appeals’ decisions were contrary
to, or involved an unreasonable application of, clearly established federal law.
the foregoing reasons, the Court ADOPTS and ACCEPTS the Magistrate Judge’s wellreasoned Report and Recommendation and dismisses Petitioner’s Petition Under 28
U.S.C. §2254 for Writ of Habeas Corpus by a Person in State Custody.
The Court finds an appeal from this decision could not be taken in good faith. 28
U.S.C. § 1915 (a)(3). Since Petitioner has not made a substantial showing of a denial
of a constitutional right directly related to his conviction or custody, the Court declines to
issue a certificate of appealability. 28 U.S.C. § 2253 (c)(2); Fed. R. App. P. 22(b).
IT IS SO ORDERED.
s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
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