Morrison v. Warden, Ross Correctional Institution

Filing 30

ORDER adopting Report and Recommendation re 24 ; overruling petitioner's objections; denying petitioner's petition for habeas corpus. A certificate of appealability will not issue; petitioner is denied leave to appeal IFP. Signed by Judge Sandra S Beckwith on 7/20/11. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Willard E. Morrison,
Petitioner,
vs.
Warden, Ross Correctional
Institution,
Respondent.

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Case No. 1:09-cv-760

ORDER
Before the Court is the Magistrate Judge’s Report and
Recommendation of May 26, 2011 (Doc. 24), and Petitioner’s
Objections to that Report. (Doc. 27)

Petitioner objects on

several grounds to the Magistrate Judge’s recommendation that his
petition for a writ of habeas corpus be denied.

For the reasons

discussed below, the Court adopts the Report and Recommendation.
FACTUAL AND PROCEDURAL BACKGROUND
The facts giving rise to Petitioner’s convictions were
summarized by the Ohio Court of Appeals.

State v. Morrison, 2008

Ohio 4913, ¶¶2-3, 2008 Ohio App. LEXIS 4112 (Ohio App. 4th Dist.,
Sept. 15, 2008).

On September 5, 2005, Sergeant Rex Branham of

the Adams Country Sheriff’s Department stopped a vehicle driven
by Petitioner.

Morrison got out of the car armed with an assault

rifle, and fired shots at Sergeant Branham.

Morrison missed

hitting Branham but bullets struck his marked police car.

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Morrison got back in the car and fled the scene, with Branham in
pursuit.

Branham’s cruiser broke down and became inoperable a

short time later, close to Compton Hill Road. Morrison then made
a sudden u-turn, drove head-on toward Sergeant Branham’s disabled
car at a high rate of speed, and rammed the cruiser.

Both

Sergeant Branham and Morrison suffered severe injuries.
The Adams County, Ohio grand jury indicted Morrison on two
counts of attempted murder, with a gun specification on Count
One.

Morrison was evaluated prior to trial, as he sustained a

closed head injury in the collision.
stand trial.

He was found competent to

On the morning his jury trial was scheduled to

start, Morrison withdrew his not guilty plea and entered pleas of
no contest to the pending charges.

The trial court thereafter

sentenced him to consecutive terms of ten years on the first
count of attempted murder with seven years on the gun
specification, and eight years on the second count, for a total
of twenty-five years of imprisonment.
Morrison appealed to the Adams County Court of Appeals which
affirmed his conviction and sentence.

Morrison’s petition for

review by the Ohio Supreme Court was denied due to a lack of a
substantial constitutional issue.

Morrison then filed his

petition pro se in this Court, raising the following grounds for
relief:
Ground One: Double Jeopardy.

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Charged and found guilty of

two counts of attempted murder on the same person at the
same time.
Ground Two: Duplicity.

See Ground One.

Ground Three: The court erred by sentencing based on a
no contest plea that was not knowingly and voluntary
[sic] under the Fifth and Fourteenth Amendments to the
U.S. Constitution and Crim. R. 11.
Ground Four: Ineffective assistance of Council [sic].
Failed to provide competent legal assistance by not
puruing [sic] whether there was an actual
misunderstanding of what a plea to no contest meant.
(Petition, Doc. 1.)
him in this case.

Morrison later obtained counsel to represent

(Doc. 8)
DISCUSSION

A federal court may issue a writ of habeas corpus to correct
a state trial that resulted in petitioner’s state confinement if
that proceeding was rendered fundamentally unfair by a violation
of the Constitution or laws of the United States.

Clemmons v.

Sowders, 34 F.3d 352, 354 (6th Cir. 1994); 28 U.S.C. §2254(a).
Morrison’s first ground for relief argues that the two
attempted murder charges on which he was convicted and sentenced
violated the constitutional prohibition on double jeopardy.
Ground Two is a variant of the first ground, contending the
charges were duplicates.

The Magistrate Judge concluded that

both of these claims are procedurally defaulted because Morrison
failed to make a fair presentation of his federal Double Jeopardy
claim to the Ohio courts.

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It is beyond dispute that a habeas petitioner must “first
exhaust state court remedies.”

Gross v. Warden, Lebanon Corr.

Inst., 08-4727, 2011 WL 1597659 (6th Cir. Apr. 27, 2011)(citing
28 U.S.C. § 2254(b)(1)).

A petitioner satisfies the exhaustion

doctrine when he fairly presents his claim to the state courts so
that the state courts have the first opportunity to decide the
claim.

Id., citing Lyons v. Stovall, 188 F.3d 327, 331 (6th Cir.

1999).

The claim is “fairly presented” if the petitioner asserts

both the legal and factual basis for the claim.

Williams v.

Anderson, 460 F.3d 789, 806 (6th Cir. 2006)(citing McMeans v.
Brigano, 228 F.3d 674, 681 (6th Cir. 2000)).

Thus, “petitioner

must present his claim to the state courts as a federal
constitutional issue - not merely as an issue arising under state
law.”

Williams, 460 F.3d at 806 (citing Koontz v. Glossa, 731

F.2d 365, 368 (6th Cir. 1984)).
Morrison argues that he did not default these claims because
he cited the federal constitution in his state court appeal
briefs, which he contends satisfies the fair presentment
requirement.

As the Magistrate Judge noted, Morrison’s second

assignment of error consumed seven pages in his appellate merits
brief, and discussed only the state law doctrine of merger of
offenses for sentencing purposes.

Ohio cases discussing the

application of that doctrine are cited in the brief.

There is no

federal case law presented, and the federal constitutional

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concepts underlying the protection against double jeopardy are
not discussed.

The only reference to the federal constitution or

federal rights is contained in the heading for the section, which
states: “Where the trial court does not merge for purposes of
sentencing duplicative criminal counts, the consecutive sentences
that result are void.

Furthermore, the sentence must be vacated

because it violates double jeopardy protections and due process
of law.

U.S. Const. Amends. V, XIV.”

Return of Writ, PAGEID 96-102)

(See Doc. 7, Exhibit 7 to

As the Magistrate Judge correctly

points out, Morrison failed to present any legal argument to
support his claim of a federal double jeopardy violation.
In his objections, Morrison argues that his citation to the
federal constitution is sufficient; that the state court’s
decision citing federal principles belies any argument that he
did not fairly present his claim; and that the “unique” federal
double jeopardy standards explain Morrison’s total reliance on
Ohio law when presenting his claim to the state court.
at 2)

(Doc. 27

The first argument fails because a defendant cannot just

employ terms such as “due process” or “fair trial,” or simply
cite a constitutional provision, without presenting facts and
legal argument to explain the citation.

See, e.g., Riggins v.

McGinnis, 50 F.3d 492, 494 (7th Cir. 1995).

Morrison’s second

argument also fails, because the Ohio Court of Appeals’
discussion of this issue simply mentioned the Fifth Amendment as

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prohibiting double jeopardy.

The opinion substantively addresses

Morrison’s arguments concerning Ohio Rev. Code 2941.25 and the
trial court’s application of the state law merger doctrine.
With regard to the “unique” federal standards governing
double jeopardy, Morrison contends that the application of state
law or statute must be viewed through the lens of federal
constitutional protections.

But Morrison did not expressly argue

that the trial court’s application of Ohio Rev. Code 2941.25
violated his federal double jeopardy rights; he argued that he
lacked a separate animus for the two counts of attempted murder,
as required by R.C. 2941.25(B).

The Court of Appeals rejected

that argument because it found that Morrison committed two
separate offenses, noting that his two attempts were not made in
rapid succession, and that he first used a gun and then later
used his vehicle to try to kill Sergeant Branham.

The Court

agrees with the Magistrate Judge’s conclusion that the first two
grounds for relief presented in Morrison’s petition are
procedurally defaulted.
Out of an abundance of caution, the Magistrate Judge also
analyzed the merits of Morrison’s double jeopardy claims and
found them lacking.

A petitioner “who has failed to meet the

State’s procedural requirements for presenting his federal claims
has deprived the state courts of an opportunity to address those
claims in the first instance.”

Edwards v. Carpenter, 529 U.S.

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446, 451 (2000) (citations omitted).

In such cases, a petitioner

must demonstrate both cause and prejudice, which Morrison has not
done.

But even if he had, this Court agrees with the Magistrate

Judge’s conclusion that Morrison was not punished twice for the
same offense in violation of the Double Jeopardy clause and Brown
v. Ohio, 432 U.S. 161, 165 (1977).

Morrison has never argued

that there was insufficient evidence to support a conclusion that
he was intentionally shooting at Branham, even though the shots
he fired fortunately missed Branham and hit his police vehicle
instead.

Morrison then got back into his car and fled the scene;

only when Branham’s car became disabled did he cease his flight,
turn around and drive his car directly into Branham’s.

While

Morrison’s acts were directed at the same person, they were
separate and distinct from each other.
Morrison relies on Brown v. Ohio, which held that the Double
Jeopardy clause did not permit a later prosecution for auto theft
after the defendant had been charged and pled guilty to the
lesser included offense of joyriding (operating the vehicle
without the owner’s consent).

The defendant was caught and

charged with joyriding nine days after he stole the car, and only
later was returned to the county from which he stole the car and
then charged with auto theft.

The lapse of time did not alter

the fact that the acts in question (auto theft and joyriding)
were the same offense, because joyriding is a lesser included

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offense of auto theft.

Morrison argues that his conduct took

place over a span of minutes, not nine days as in Brown, but the
temporal span does not control the analysis of whether Morrison’s
two separate attempts to kill Branham were separate offenses.
Moreover, in discussing the protections afforded by the Double
Jeopardy clause, Brown noted that “Where consecutive sentences
are imposed at a single criminal trial, the role of the
constitutional guarantee is limited to assuring that the court
does not exceed its legislative authorization by imposing
multiple punishments for the same offense.”
omitted).

Id. at 165 (citation

That is the situation presented here, and there is

nothing in the record supporting a conclusion that the state
courts exceeded the legislative authority embodied in R.C.
2941.25.

Thus, even if the merits of Morrison’s double jeopardy

claims were not defaulted, the Court concludes that they lack
merit.
Morrison’s third ground for relief argues that his nocontest pleas were not knowing and voluntary.

Morrison claims

that his pleas were not voluntary because he did not fully
understand the nature of the charges or the effect of a nocontest plea.

Morrison raised this claim as his first assignment

of error on his direct appeal.

The Court of Appeals rejected his

claim, which was premised on two instances during the plea
colloquy when Morrison told the trial judge he did not understand

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what the judge was telling him.

The first instance concerned the

consecutive sentence for the gun specification, and the second
concerned the possible merger of the attempted murder counts.

In

both cases, the trial judge stopped and again explained the issue
and the ramifications to Morrison.

And in both cases, the court

of appeals concluded that Morrison clearly and unequivocally
responded that he understood the information explained to him by
the court.

“As such, we find that, under the totality of the

circumstances, Morrison subjectively understood the implications
of his no contest pleas and the rights he was waiving.
Consequently, we find that Morrison knowingly, intelligently, and
voluntarily entered his pleas.”

(Doc. 7, Exhibit 10, Court of

Appeals decision at 9, ¶14.)
The Magistrate Judge concluded that the state court’s
determination was not contrary to, nor an unreasonable
application of clearly established Supreme Court precedent.

In

his objections, Morrison argues that several colloquies from the
trial court indicate that he did not understand what was being
said to him.

But the transcript of the plea proceedings

demonstrates that each time Morrison said that he was confused or
did not understand something, the trial judge stopped and gave
another explanation, and then specifically asked Morrison if he
understood or had any more questions.

(See Doc. 7, Exhibit 22,

Change of Plea Transcript at 24-59, PAGEID 310, 311, 317, 320,

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323, 334, 337, and 345.)
affirmative answer.

Morrison would then respond with an

The trial court also specifically told

Morrison that “every question is a good question if it helps you
understand something better, so I don’t want you to hesitate to
ask any questions that you may have...”.

Id. at 26, PAGEID 312.

Whether Morrison understood the implications of his no contest
plea is a factual question, and the state court’s finding is
binding on this Court unless clear and convincing evidence shows
it to be incorrect.

28 U.S.C. §2254(e)(1).

Morrison also

complains that the trial judge asked him leading questions,
prompting yes or no answers which did not fully confirm
Morrison’s understanding.

As the Magistrate Judge aptly noted,

the use of leading questions is a very common practice in this
and other courts, and the record demonstrates that whenever
Morrison expressed some uncertainty or confusion, the trial court
stopped and gave another explanation.

Based upon Morrison’s

unambiguous responses and the deference afforded to the state
court’s factual findings, the Court concludes that the state
court’s determination that Morrison’s plea was voluntary,
knowing, and intelligent is not contrary to or an unreasonable
application of established federal law.

Morrison’s third ground

for relief is therefore dismissed.
Morrison’s fourth and final ground for relief contends that
he received ineffective assistance of counsel at his trial, which

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rendered his guilty plea involuntary.

He presented this claim as

his third assignment of error in his direct appeal, and the state
court rejected it based on its conclusions regarding Morrison’s
other claims.

Morrison did not pursue post-conviction relief in

the state court, and there is no evidence de hors the record
concerning this claim.
To establish ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984), Morrison must show
that his attorney’s performance was deficient, and that the
deficiency prejudiced his defense such that the proceedings were
unfair and the result unreliable.

Id. at 687.

counsel’s performance is highly deferential.

Scrutiny of

Id. at 689-90.

To

satisfy the prejudice prong of the Strickland test, “[the]
defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different. ...

A reasonable

probability is a probability sufficient to undermine confidence
in the outcome.”

Id. at 649.

Morrison argues that his trial lawyer failed to investigate
his understanding of the ramifications of a no contest plea.

But

whatever his lawyer may or may not have done or failed to do, the
plea colloquy demonstrates that Morrison sufficiently understood
the charges to which he pled no contest.

Morrison notes that his

attorney told the trial court that the no contest plea was

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prompted in large part by Morrison’s amnesia regarding the events
underlying the charges, and that at least one doctor believed the
amnesia would be permanent.

Yet, he claims that his attorney did

not argue or suggest that his amnesia would also undermine his
ability to knowingly plead to the charges.
The state court found that there is no material difference
between the competency standards for going to trial, and those
for entering a knowing plea.

Despite Morrison’s amnesia

regarding events, he was found capable of understanding the
charges against him.

Morrison’s counsel properly obtained that

competency evaluation prior to his plea; that combined with
Morrison’s colloquy responses, demonstrate that any ineffective
assistance did not result in any actual prejudice to Morrison.
Morrison also objects to the Magistrate Judge’s application
of the AEDPA standards because the state court improperly merged
its consideration of Morrison’s knowing and voluntary plea with
the Strickland test.

(See Doc. 27 at 11)

He cites Moore v.

Bryant, 348 F.3d 238 (7th Cir. 2003), affirming a grant of habeas
relief based on ineffective assistance of counsel after defendant
pled guilty.

But in that case, the record before the state court

demonstrated that shortly before trial, the defendant pled guilty
based on his attorney’s mistaken advice concerning a pending
change in state law governing good time credits.

Shortly after

pleading guilty, the defendant discovered that the advice was

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wrong and moved to withdraw his plea.

He submitted his own

affidavit, and his attorney testified at the hearing on the
motion to withdraw, but the trial court denied his motion and he
was sentenced based on his plea.

The Seventh Circuit found the

attorney’s conduct was objectively unreasonable, and that Moore’s
affidavit and his testimony at the plea motion hearing, along
with the entire record in the trial court, supported his
assertion that he would not have pled guilty absent the mistaken
advice.

The court then found that the state court’s rejection of

the ineffective assistance claim was unreasonable, as it was
based upon the thoroughness of the plea colloquy.

But at that

time, the defendant had no idea that his attorney’s advice was
wrong; and the court’s colloquy questions did not include any
issues about the length of sentence or good time credits.

Thus

the court held that the plea colloquy was not a panacea for the
attorney’s objectively deficient performance.

Id. at 243.

These circumstances are simply not relevant to Morrison’s
situation.

The Magistrate Judge noted that there is no evidence

outside the record that might support a claim that his counsel
provided incorrect legal advice about a no contest plea.

And

Morrison does not articulate how the result would have been
different absent the purported ineffective assistance.

The Court

agrees that the state court’s rejection of Morrison’s claim was

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not contrary to nor an unreasonable application of the Strickland
standards.
CONCLUSION
As required by 28 U.S.C. §636(b) and Federal Rule of Civil
Procedure 72(b), the Court has conducted a de novo review of the
record in this case.

Upon such review, the Court finds that

Morrison’s objections to the Magistrate Judge’s Report and
Recommendation are not well taken, and his objections are
overruled.
It is therefore ordered that the petition for a writ of
habeas corpus is DENIED with prejudice.

A certificate of

appealability shall not issue because jurists of reason would not
find it debatable whether this Court is correct in concluding
that the petition for habeas relief should be denied.

See Slack

v. McDaniel, 529 U.S. 473, 484-85 (2000).
This Court CERTIFIES, pursuant to 28 U.S.C. §1915(a)(3),
that an appeal from this Order would not be taken in good faith.
Accordingly, Petitioner will not be granted leave to appeal in
forma pauperis.

See Fed. R. App. P. 24(a); Kincade v. Sparkman,

117 F.3d 949, 952 (6th Cir. 1997).

Petitioner may seek a

certificate of appealability from the Court of Appeals.
U.S.C. § 2253(c) and Fed. R. App. P. 22(b).
SO ORDERED.
DATED: July 20, 2011

s/Sandra S. Beckwith
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See 28

Sandra S. Beckwith
Senior United States District Judge

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