Morris v. Warden, Lebanon Correctional Insititution

Filing 12

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 5/3/2019. Signed by Magistrate Judge Michael R. Merz on 4/19/2019. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
ANTHONY L. MORRIS,
Petitioner,

:

- vs -

Case No. 1:18-cv-101
District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

THOMAS SCHWEITZER, Warden,
Lebanon Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner Anthony L. Morris. It is ripe for
decision on the merits on the Petition (ECF No. 1), the State Court Record (ECF No. 6), the Return
of Writ (ECF No. 7), and Petitioner’s Reply (ECF No. 10). The Magistrate Judge reference in the
case was recently transferred to the undersigned to help balance the workload in the District (ECF
No. 11). Ultimate decision of the case remains with District Judge Dlott.

Litigation History

A Hamilton County grand jury indicted Morris on June 25, 2014, on four counts of
kidnapping, two counts of aggravated robbery, and one count of felonious assault (Indictment,
State Court Record, ECF No. 6, Ex. 1, PageID 54-58). A trial jury found him guilty on all counts.
Id. at Ex. 6, PageID 69-75. The trial court merged the kidnapping counts for each victim and
imposed an aggregated sentence of twenty-four years. Id. at Ex. 7, PageID 76. Morris appealed
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pro se to the Ohio First District Court of Appeals. That court vacated the conviction for aggravated
robbery involving the harm to Camber Lawson, but otherwise affirmed. State v. Morris, 1st Dist.
Hamilton No. C-150421, 2016-Ohio-5490 (Aug. 24, 2016), appellate jurisdiction declined, 147
Ohio St. 3d 1508 (2017).
Morris then filed his habeas corpus Petition in this Court, pleading the following grounds
for relief:
GROUND ONE:
Supporting Facts: Insufficient evidence to convict Due process
violation 5th and 14th Amendment, by testimony from Ms. Lawson.
She wasn’t forced from the car by deception or any other case and
was not held against her will.
GROUND TWO:
Supporting Facts: Ms. Lawson testified that she wasn’t touched or
threatened, and jumped on her own due to the influence of being on
drugs.
GROUND THREE:
Supporting Facts: Ineffective counsel – failing to move for
dismissal of kidnapping charges also the aggravated robbery and
felonious assault on Ms. Lawson, also to have all charges merged.
GROUND FOUR:
Supporting Facts: The aggravated robbery against Ms. Lawson
with her own testimony nothing was taken from her or her person.
(Petition, ECF No. 1, PageID 5, 6, 8, 9.)

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Analysis

Grounds One and Two: Insufficient Evidence as to Victim Lawson

In his First and Second Grounds for Relief, Morris claims there was insufficient evidence
to convict him of crimes against Camber Lawson. He raised this as his First Assignment of Error
on direct appeal and the First District decided it as follows:

II. Sufficiency of the Evidence
{¶ 5} In his first assignment of error, Mr. Morris argues that three of
his convictions were not supported by sufficient evidence. He claims
that the conviction for kidnapping Lawson fails because the state did
not show that he had removed Lawson from the car by force or
deception. He also challenges the sufficiency of the evidence of
felonious assault because the state failed to show he caused Lawson
serious physical harm. Finally, he contends he could not be
convicted of one of the counts of aggravated robbery because the
state did not prove he had inflicted serious physical harm on
Lawson. We consider each conviction in turn.

A. Kidnapping
{¶ 6} To convict Morris of kidnapping Lawson, the state was
required to show that he removed or restrained her by force, threat
or deception for the purpose of committing a felony. See R.C.
2905.01(A)(2). Mr. Morris insists the kidnapping conviction
charged in count one of the indictment was insufficient because the
state failed to prove he removed Lawson from the car by force or
deception. Indeed, Ms. Lawson testified that she willingly got out of
the car and went into the house.
{¶ 7} If the offense had stopped when Lawson followed Morris and
Gates into the apartment, he would have a strong argument that the
evidence was insufficient to establish the force or deception element
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required by the kidnapping statute. But it didn't stop there. Once
Lawson was inside the apartment, Mr. Morris restrained her on the
second floor. A victim is restrained when her freedom of movement
is limited in any fashion for any period of time. State v. Grant, 1st
Dist. Hamilton No. C-971001, 2001 Ohio App. LEXIS 1388, *32
(March 23, 2001). “[M]erely compelling a victim to stay where he
is constitutes restraint.” Id. at *32-33. Mr. Gates testified that once
they were in the upstairs bedroom, Morris ordered them to sit on the
couch. Ms. Lawson testified that after they sat down Morris locked
the apartment door. He then used a knife to threaten and assault
Gates as Lawson sat nearby on the couch. Mr. Gates stated that
Morris warned them not to leave, and that the other two men in the
house told them to listen to Morris because he was “crazy.” Ms.
Lawson explained that she was afraid and felt that her life was
threatened. This evidence was sufficient to establish Morris
restrained Lawson by force or threat.

B. Felonious Assault
{¶ 8} Mr. Morris also claims that the evidence was insufficient to
support his felonious-assault conviction. The state was required to
prove that Morris knowingly caused serious physical harm to
Lawson. See R.C. 2903.11(A)(1). As Morris sees it, the state could
not prove he “knowingly caused” Lawson's injuries because they
resulted from her voluntary decision to jump off of the balcony.
{¶ 9} Knowingly, as differentiated from purposely, does not require
the offender to have the specific intent to cause a certain result. R.C.
2901.22(A) and (B); see State v. Dixon, 8th Dist. Cuyahoga No.
82951, 2004-Ohio-2406, ¶ 16. A person acts knowingly when,
regardless of purpose, “the person is aware that the person’s conduct
will probably cause a certain result or will probably be of a certain
nature. A person has knowledge of circumstances when the person
is aware that such circumstances probably exist.” R.C. 2901.22(B).
An accused is presumed to intend the natural, reasonable and
probable consequences of his voluntary acts. State v. Johnson, 56
Ohio St.2d 35, 39, 381 N.E.2d 637 (1978).
{¶ 10} Both Mr. Gates and Ms. Lawson testified that Morris held a
knife to Gates's throat and demanded money. They were warned not
to leave, which was reinforced by the other two men in the house.
When she saw Gates jump off of the balcony, Ms. Lawson tried to
think of what to do. She was scared and did not want to be in the
apartment anymore, so she jumped off of the balcony after Gates.
Ohio courts have found an effort to escape to be a “"natural
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consequence” of being held hostage. State v. Bromley, 9th Dist.
Lorain Nos. 93CA005738 and 93CA005739, 1994 Ohio App.
LEXIS 2707 (June 22, 1994); State v. Jarvis, 9th Dist. Lorain No.
14CA010667, 2015-Ohio-4219, ¶ 16; see State v. Jackson, 8th Dist.
Cuyahoga No. 80879, 2002-Ohio-5851, ¶ 60 (“one consequence of
holding an individual at gunpoint is escape”). Ms. Lawson feared
for her life. It was perfectly reasonable for her to try to escape her
captor after being threatened with a deadly weapon and future
violence. Because Lawson’s injuries were sustained while
attempting to escape, we find that the state adduced sufficient
evidence that Morris knowingly caused her serious physical harm in
order to sustain the felonious-assault conviction.

C. Aggravated Robbery
{¶ 11} Mr. Morris again focuses on Lawson's voluntary jump from
the balcony in his challenge to the aggravated-robbery count
involving her injury. To find Morris guilty of aggravated robbery,
the state needed to show that Morris recklessly inflicted or attempted
to inflict serious physical harm on Lawson while committing or
attempting to commit a theft offense. See R.C. 2911.01(A)(3) and
2901.21(C)(1). Mr. Morris argues that the evidence was insufficient
to sustain his conviction for the aggravated robbery involving the
harm to Lawson because the state failed to show that he “inflicted”
the harm that was occasioned by her jump from the balcony. We
agree.
{¶ 12} “Inflict” is not defined in the Ohio Revised Code, so we apply
its plain and ordinary meaning. See Chari v. Vore, 91 Ohio St.3d
323, 327, 2001 Ohio 49, 744 N.E.2d 763 (2001); R.C. 1.42. “Inflict”
means “to give by[,] or as if by[,] striking.” Merriam-Webster
Online,
available
at
http://www.merriamwebster.com/dictionary/inflict?utm_campaign=sd&utm_medium=s
erp&utm_source=jsonld (accessed August 4, 2016). The
legislature's use of the word “inflict,” instead of “cause,” indicates
that something more than but-for causation is required to prove the
harm element of aggravated robbery under R.C. 2911.01(A)(3). The
word “inflict” “implies some direct action by one person upon
another.” State v. Bates, 10th Dist. Franklin No. 97APA02-171,
1997 Ohio App. LEXIS 5411, *12 (Dec. 2, 1997); see State v.
Laurence, 3d Dist. Crawford No. 3-14-05, 2015-Ohio-1891, ¶ 28.
{¶ 13} Thus, in Bates, the Tenth Appellate District concluded that
the evidence was insufficient to support an aggravated-robbery
conviction where the injury (a severe laceration to the victim's arm)
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resulted from the victim punching at the defendant through a broken
window. Bates at *14. The court reasoned that the victim’s injury
was caused indirectly by the defendant as opposed to any direct
action of the defendant upon the victim. Id.
{¶ 14} Likewise, we conclude that Lawson’s injuries were not
caused by any direct action on the part of Morris. Rather, they
happened indirectly as a result of her jump. When considering a
sufficiency claim, we must determine, after viewing the evidence in
the light most favorable to the state, whether a rational trier of fact
could have found the elements of the crime proven beyond a
reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus. We find the state did not
present sufficient evidence that Morris inflicted harm on Lawson.
Morris's first assignment of error is sustained as to the aggravatedrobbery conviction charged in count six of the indictment and
overruled in all other respects.

State v. Morris, 2016-Ohio-5490.
An allegation that a verdict was entered upon insufficient evidence states a claim under the
Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v.
Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d
987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990) (en banc). In order
for a conviction to be constitutionally sound, every element of the crime must be proved beyond a
reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable inferences
from basic facts to ultimate facts.

Jackson, 443 U.S. at 319 (emphasis in original); accord: United States v. Paige, 470 F.3d 603,
608 (6th Cir. 2006); United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007).

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This rule was recognized in Ohio law in at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course,
it is state law which determines the elements of offenses; but once the state has adopted the
elements, it must then prove each of them beyond a reasonable doubt. In re Winship, 397 U.S. at
364.
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
Stat. 1214) (the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to groups
who might view facts differently than we would. First, as in all
sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.
Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, reevaluate the credibility of witnesses, or substitute our judgment for
that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th
Cir. 1993). Thus, even though we might have not voted to convict a
defendant had we participated in jury deliberations, we must uphold
the jury verdict if any rational trier of fact could have found the
defendant guilty after resolving all disputes in favor of the
prosecution. Second, even were we to conclude that a rational trier
of fact could not have found a petitioner guilty beyond a reasonable
doubt, on habeas review, we must still defer to the state appellate
court's sufficiency determination as long as it is not unreasonable.
See 28 U.S.C. § 2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 204-05 (6th Cir. 2009). In a sufficiency of the evidence habeas
corpus case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and
then to the appellate court's consideration of that verdict, as commanded by AEDPA. Parker v.
Matthews, 567 U.S. 37, 43 (2012) (per curiam); Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)
(en banc); Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008). Notably, “a court may sustain a

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conviction based upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595
F.3d 647, 656 (6th Cir. 2010).
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of judicial
deference. First, on direct appeal, “it is the responsibility of the jury
-- not the court -- to decide what conclusions should be drawn from
evidence admitted at trial. 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." Cavazos v. Smith, 565 U.S.
1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam).
And second, on habeas review, “a federal court may not overturn a
state court decision rejecting a sufficiency of the evidence challenge
simply because the federal court disagrees with the state court. The
federal court instead may do so only if the state court decision was
‘objectively unreasonable.’” Ibid. (quoting Renico v. Lett, 559 U. S.
___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).
Coleman v. Johnson, 566 U.S. 650, 651, (2012) (per curiam); accord Parker v. Matthews, 567 U.S.
at 43.
Here, the First District Court of Appeals accepted Morris’s claim that he was not proven
to be guilty of aggravated robbery from Ms. Lawson. He is therefore not in custody on that
conviction and it is not subject to further review in this Court, e.g., by changing the basis of the
dismissal.
Regarding the kidnapping conviction, the First District found there were facts – locking
the door, brandishing a large knife, telling Lawson not to leave – that were sufficient under Ohio
law to constitute kidnapping. This Court is bound by the First District’s determination about what
facts are sufficient to constitute kidnapping under Ohio law. Bradshaw v. Richey, 546 U.S. 74
(2005) (per curiam). From the court’s recitation of the testimony, set forth supra, the Magistrate
Judge finds its determination that those facts existed was not an unreasonable determination.
The focus of Morris’s argument appears to be on the felonious assault, to wit, his claim
that Lawson jumped either completely voluntarily or because she was under the influence of
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heroin. The gravamen of the First District’s decision on this issue is that Morris acted toward
Lawson and Gates in ways that would have led a reasonable man or woman to look for ways to
escape and Lawson’s jump from the balcony was thus a natural consequence of holding her
captive. 2016-Ohio-5490, at ¶¶ 8-10. As with the kidnapping conviction, this Court must accept
what the First District says as the law of Ohio and that court recites sufficient facts to make its
determination reasonable under Ohio law. Morris’s claim in his Reply that Ohio law is different
from what the First District found (ECF No. 10, PageID 561) is not material – this Court is bound
by the version of Ohio law accepted by the First District. Bradshaw, supra.

Ground Three: Ineffective Assistance of Trial Counsel for Failure to Move for Merger

In his Third Ground for Relief, Morris claims he received ineffective assistance of trial
counsel when his attorney did not move to merge all the charges. He also faults his attorney for
“failing to move for dismissal of kidnapping charges also the aggravated robbery and felonious
assault on Ms. Lawson.” (Petition, ECF No. 1, PageID 8). The First District did not find the
insufficiency of evidence claims as to Lawson as a victim had been procedurally defaulted by
failure to make a motion to dismiss. It considered those claims on the merits and disposed of them
as set forth above. Morris, 2016-Ohio-5490, at ¶¶ 5-14. If, therefore, it was deficient performance
for his attorney not to make the motion to dismiss1, he was not prejudiced by it.
With respect to merger, Morris raised a question of merger of the aggravated robbery and
kidnapping charges with Gates as the victim as his second assignment of error on appeal and the

1

When Morris says “motion to dismiss,” the Magistrate Judge understands him to mean a motion for acquittal under
Ohio R. Crim. P. 29.

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First District decided it as follows:
III. Merger
{¶ 15} In his second assignment of error, Mr. Morris argues that the
trial court erred when it failed to merge the count for kidnapping
Gates with the count for aggravated-robbery with a deadly weapon.
Because he did not object below, Mr. Morris waived all but plain
error. See Crim.R. 52(B).
{¶ 16} Under R.C. 2941.25(B), a defendant may be convicted of
multiple offenses arising from the same conduct if any one of the
following is true: (1) the conduct constitutes offenses of dissimilar
import, (2) the conduct shows that the offenses were committed
separately, or (3) the conduct shows that the offenses were
committed with separate animus. State v. Ruff, 143 Ohio St. 3d 114,
2015-Ohio-995, 34 N.E.3d 892, syllabus.
{¶ 17} Commission of an aggravated robbery necessarily involves
at least a brief restraint of the victim. State v. Jenkins, 15 Ohio St.3d
164, 198, 15 Ohio B. 311, 473 N.E.2d 264 (1984), fn. 29 (a
kidnapping is implicit within every aggravated robbery); State v.
Chaffer, 1st Dist. Hamilton No. C-090602, 2010-Ohio-4471, ¶ 11.
The Ohio Supreme Court has recognized that the primary question
when determining whether kidnapping merges with another offense
“is whether the restraint or movement of the victim is merely
incidental to a separate underlying crime or, instead, whether it has
a significance independent of the other offense.” State v. Logan, 60
Ohio St.2d 126, 135, 397 N.E.2d 1345 (1979). “Thus, when a
kidnapping is committed during another crime, there exists no
separate animus where the restraint or movement of the victim is
merely incidental to the underlying crime.” Grant, 1st Dist.
Hamilton No. C-971001, 2001 Ohio App. LEXIS 1388 at *16. But
where the restraint is prolonged, the confinement is secretive or the
movement is substantial, the kidnapping and aggravated robbery are
committed with a separate animus. Id.
{¶ 18} Here, the restraint of Gates was prolonged. Mr. Morris
persuaded Gates to follow him from the grocery store to carry out a
drug deal. He then ordered Gates out of his car, up the stairs and into
the house at knifepoint. After keeping Gates in the house, Mr.
Morris held a knife to Gates’s throat demanding money. He further
restrained Gates with the threat of violence before leaving with
Gates's keys. Mr. Morris detained Gates far longer than the time
necessary to complete the aggravated robbery. We find Morris’s
prolonged restraint of Gates, both before and after retrieving the
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keys from Gates’s pocket, demonstrates a separate animus for the
kidnapping offense. See State v. Houston, 1st Dist. Hamilton No. C130429, 2014-Ohio-3111, ¶ 22-23. Mr. Morris’s second assignment
of error is overruled.
State v. Morris, 2016-Ohio-5490. Although the First District reviewed this assignment of error
under a plain error standard, it did not indicate the claim would have had merit had it been raised
in the trial court. In other words, Morris’s attorney’s failure to object was not held against him in
the court of appeals. Thus, there was no prejudice from the failure to make the objection. The
First District made this same point in overruling Morris’s third assignment of error. Morris, 2016Ohio-5490, at ¶ 19.
Morris has not suggested any basis on which any other counts of the Indictment could have
been merged; nor did he make any such argument to the First District. Ground Three should
therefore be dismissed.

Ground Four: Insufficient Evidence of the Robbery of Ms. Lawson

In his Fourth Ground for Relief, Morris complains that there was not sufficient evidence to
convict him of aggravated robbery of Ms. Lawson. The First District agreed and vacated this
conviction. Morris, 2016-Ohio-5490, at ¶ 1. Since Morris is not in custody any longer on that
conviction, this Court cannot review it in habeas corpus.

Conclusion

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Based on the foregoing analysis, it is respectfully recommended that the Petition be
dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion,
Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth
Circuit that any appeal would be objectively frivolous and therefore should not be permitted to
proceed in forma pauperis.

April 19, 2019.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days
because this Report is being served by mail. .Such objections shall specify the portions of the
Report objected to and shall be accompanied by a memorandum of law in support of the objections.
If the Report and Recommendations are based in whole or in part upon matters occurring of record
at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or
such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless
the assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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