Morris v. Colson
ORDER DENYING APPLICATION FOR A CERTIFICATE OF APPEALABILITY, CERTIFYING THAT AN APPEAL WOULD NOT BE IN GOOD FAITH, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL 87 . Signed by Judge J. Daniel Breen on 5/18/17. (Breen, J.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
FARRIS GENNER MORRIS,
BRUCE WESTBROOKS, Warden,
Riverbend Maximum Security
ORDER DENYING APPLICATION FOR A CERTIFICATE OF APPEALABILITY,
CERTIFYING THAT AN APPEAL WOULD NOT BE IN GOOD FAITH,
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
On April 5, 2017, Petitioner, Farris Genner Morris, through counsel, filed an application
for a certificate of appealability (“COA”). (Electronic Case Filing (“ECF”) No. 87.) Respondent
has not filed a response, and the time period for doing so has expired.
Morris asserts that he is entitled to a COA on claims that are debatable among reasonable
jurists and that deserve encouragement to proceed further based on:
a) The grants of certiorari in Davila v. Davis, [137 S. Ct. 810 (2017)], and Wilson v. Sellers,
137 S. Ct. 1203 (2017);
b) The Supreme Court’s decision in Buck v. Davis, 137 S. Ct. 759 (2017), which Morris
contends condemns racism in capital cases; and
c) The fact that his claims have never received the application of Martinez v. Ryan, 566 U.S.
(ECF No. 87 at PageID 6587.) Petitioner insists that a COA should be granted on all his claims,
but the Court “should certainly grant” a COA on claims in paragraphs 9(K) of the amended
petition incorporating 21(B-D); 9(L); 9(M); 9(N) incorporating 24; 9(P) incorporating 27; 10(AD); 11(B); 11(D) incorporating 26(B); 11(F) incorporating 18; 11(G); 11(H) incorporating 9(L),
9(M), 19, 21(A-D), 26(A), and 29(L); 24; 27; and 29(L). (Id.)
THE COA STANDARD
There is no absolute entitlement to appeal a district court’s denial of a § 2254 petition.
Miller-El v. Cockrell, 537 U.S. 322, 335 (2003); Bradley v. Birkett, 156 F. App’x 771, 772 (6th
Cir. 2005) (per curiam). The Court must issue or deny a COA when it enters a final order
adverse to a § 2254 petitioner. Rule 11, Rules Governing § 2254 Cases in the United States
District Courts. A petitioner may not take an appeal unless a circuit or district judge issues a
COA. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1).
A COA may issue only if the petitioner has made a substantial showing of the denial of a
constitutional right, and the COA must indicate the specific issue or issues that satisfy the
required showing. 28 U.S.C. §§ 2253(c)(2) & (3). A “substantial showing” is made when the
petitioner demonstrates that “reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed further.”
Miller-El, 537 U.S. at 336
(internal quotation marks omitted); see Buck, 137 S. Ct. at 773 (a COA “is not coextensive with a
merits analysis [and] should be decided without ‘full consideration of the factual or legal bases
adduced in support of the claims’”); see also Henley v. Bell, 308 F. App’x 989, 990 (6th Cir.
2009) (per curiam) (same). A COA does not require a showing that the appeal will succeed,
Miller-El, 537 U.S. at 337; Caldwell v. Lewis, 414 F. App’x 809, 814-15 (6th Cir. 2011);
however, courts should not issue a COA as a matter of course, Bradley, 156 F. App’x at 773.
RELEVANT PROCEDURAL HISTORY
On April 26, 2007, Morris filed a pro se petition pursuant to 28 U.S.C. § 2254. (ECF No.
1.) Through counsel, he amended the petition on January 11, 2008. (ECF No. 12.) On
September 29, 2011, the Court determined that Petitioner was denied the effective assistance of
counsel at sentencing and granted the petition in part. (ECF No. 58 at PageID 1124.) The Court
denied a COA because “[t]here can be no question that the remaining claims that were dismissed
are either without merit or barred by procedural default.” (Id. at PageID 1125-26.)
The parties appealed.
(ECF Nos. 62 & 63.)
On March 1, 2012, Morris filed an
application for a COA on his guilt-phase habeas claims, particularly the guilt-phase ineffective
assistance of counsel claims. (Case No. 11-6322, Doc. No. 30 (6th Cir. Mar. 1, 2012).)1 He
stated that his habeas petition was the first opportunity to present the procedurally defaulted
ineffective assistance of counsel claims and that the Sixth Circuit “should await the Supreme
Court’s decision in Martinez before determining whether Petitioner’s claims are defaulted.” (Id.
Martinez was decided on March 20, 2012, while the application for a COA was pending.
On September 13, 2012, the Sixth Circuit granted in part and denied in part Morris’s application
for a COA (Doc. No. 41-2), stating that
[t]he case will proceed on the Warden’s appeal and on Morris’s claim that his trial
counsel were ineffective in the guilt phase for failing to investigate and present a
state-of-mind defense to the charge of first-degree intentional, deliberate,
premeditated murder. Morris has waived consideration of his other guilt-phase
claims by failing to argue them in his COA application.
In Morris’s application for a COA to the Sixth Circuit, he did not specifically address
any of the ineffective assistance of trial counsel claims raised in the instant application and failed
to raise ineffective assistance of appellate counsel claims. (See Case No. 11-6322, Doc. No. 30
On July 24, 2013, the inmate filed a motion to remand the case to the district court based
on Trevino v. Thaler, 133 S. Ct. 1911 (2013), which had been decided two months earlier on
May 28, 2013. (Doc. No. 65-1.) Morris sought remand to determine cause and prejudice for the
default of his ineffective assistance of trial counsel claims related to counsel’s failure to:
object to jury instructions regarding reasonable doubt;
challenge race and gender discrimination in the selection of the grand jury foreperson;
raise a Brady [v. Maryland, 373 U.S. 83 (1963)] claim about the State’s pre-trial
consultation with its expert witness O. C. Smith.
(Id. at 1, 8-10.) Respondent argued that two of the three claims were not raised in the petition;
that Martinez and Trevino were not timely raised as to the other claim; and that Morris’s
ineffective assistance claims are not substantial. (Doc. No. 71 at 1-2, 19.) On October 30, 2013,
the Sixth Circuit denied the motion to remand. (Doc. No. 82-2.)
While Morris’s appeal was pending, the Sixth Circuit held “that ineffective assistance of
post-conviction counsel can establish cause to excuse a Tennessee defendant’s procedural
default of a substantial claim of ineffective assistance at trial” under Martinez and Trevino.
Sutton v. Carpenter, 745 F.3d 787, 795-96 (6th Cir. 2014).
On September 23, 2015, the Sixth Circuit affirmed the denial of Morris’s guilt-phase
ineffectiveness claims, vacated the grant of habeas relief for the sentencing-phase ineffective
assistance claims, and remanded the case “for a denial of the writ in accordance with this
decision.” (Doc. No. 126-2 at 26.)2 See Morris v. Carpenter, 802 F.3d 825, 844 (6th Cir. 2015).
The judgment stated that the Sixth Circuit remanded the case “to the district court for the
denial of the writ of habeas corpus in accordance with the opinion of this court.” (ECF No. 70 at
The Sixth Circuit denied en banc rehearing. (Doc. No. 133.) The United States Supreme Court
denied the petition for writ of certiorari on October 4, 2016. (Doc. No. 136.)
The Sixth Circuit issued a mandate on October 4, 2016. (ECF No. 74.) Consistent with
that mandate, this Court denied the petition, and a judgment was entered on October 12, 2016.
(ECF No. 75 at PageID 6401; see ECF No. 76 at Page ID 6402.) The Court denied Morris’s
motion to alter or amend the judgment on March 13, 2017. (ECF No. 85.)
The Court first addresses the relevant law of the case as it relates to Petitioner’s request
for a COA and notes that the Sixth Circuit previously considered waived all of his guilt-phase
claims except for ineffective assistance of counsel for failing to investigate and present a stateof-mind defense to the first degree murder charge and denied remand based on Martinez. The
one guilt-phase claim that the Sixth Circuit considered was denied on the merits. Morris, 802
F.3d at 842.
“[F]indings made at one point in the litigation become the law of the case for subsequent
stages of that same litigation.” Moore v. Mitchell, 848 F.3d 774, 776 (6th Cir. 2017) (quoting
United States v. Moored, 38 F. 3d 1419, 1421 (6th Cir. 1994)), reh’g en banc denied (May 3,
2017). “The law of the case doctrine is not an inexorable command but is directed to a court’s
common sense.” Id. (internal quotation marks omitted). The Sixth Circuit has stated three
reasons to reconsider a ruling in lieu of relying on the law of the case: (1) where substantially
different evidence is raised on subsequent trial; (2) where a subsequent contrary view of the law
is decided by the controlling authority; or (3) where a decision is clearly erroneous and would
work a manifest injustice.” Id.
In Wheeler v. Simpson, 852 F.3d 509, 513 (6th Cir. 2017), reh’g denied (Apr. 12, 2017),
the Sixth Circuit stated that its previous decision on the petitioner’s guilt-phase claims and the
Supreme Court‘s denial of the certiorari petition was the law of the case and refused to revisit
those claims. See Cadogan v. Renico, Civil No. 04-CV-71761-DT, 2008 WL 3979496, at *2
(E.D. Mich. Aug. 25, 2008) (“Given that the Sixth Circuit has already dismissed petitioner’s
prior appeals or has declined to issue a certificate of appealability from this Court’s prior
decisions, the law of the case doctrine prevents this Court from issuing a certificate of
appealability in this case.”). Similarly, in the instant case, the Sixth Circuit has ruled on the
claims presented and certiorari has been denied. The appellate court’s specific denial of a COA
amounts to a holding that this Court’s decision on the particular issue is not debatable among
reasonable jurists. Likewise, the Sixth Circuit’s express denial of relief establishes the law of the
case. Therefore, the Court will determine whether Morris has articulated an argument that
controlling authority presents a subsequent contrary view of the law and that the decision is
clearly erroneous and would work a manifest injustice in determining whether the issues
presented are debatable among reasonable jurists or deserve encouragement to proceed further.
Morris contends that, based on the grant of certiorari in Davila, he is entitled to a COA
on the following ineffective assistance claims for appellate counsel’s failure to state claims
the State’s systematic racial use of peremptory challenges (Am. Pet. ¶ 11(B));
the State’s improper closing argument in the sentencing phase (Am. Pet. ¶¶ 11(D) &
Paragraph 26(B) of the amended petition asserts prosecutorial misconduct for making
unconstitutional arguments at the sentencing phase. (ECF No. 12 at PageID 132.)
the removal for cause of jurors that were qualified to serve under Wainwright v. Witt
(Am. Pet. ¶¶ 11(F) & 18);
the admission of the medical examiner’s testimony at the sentencing phase (Am. Pet.
trial counsel’s failure to strike Juror Atkins (Am. Pet. ¶¶ 11(H) & 9(L));
trial counsel’s failure to strike Juror Bowman (Am. Pet. ¶¶ 11(H) & 9(M));
trial counsel’s failure to remove jurors who admitted prejudices and biases against the
defendant that prohibited their impartiality (Am. Pet. ¶¶ 11(H) & 19);
the jury instructions at the guilt and sentencing phases of trial which were
unconstitutional, relieved the prosecution of its burden of proof, and led to the arbitrary
infliction of the death sentence through the reasonable doubt jury instruction (Am. Pet. ¶¶
11(H) & 21(A));
the jury instructions on intent (Am. Pet. ¶¶ 11(H) & 21(B));
at the guilt phase, the jury instruction to determine whether Morris was “capable of
premeditation” when the proper constitutional inquiry was whether he actually
premeditated (Am. Pet. ¶¶ 11(H) & 21(C));
at the guilt phase, the jury instruction on intoxication (Am. Pet. ¶¶ 11(H) & 21(D)); and
the prosecution’s prejudicial misleading and unconstitutional arguments (Am. Pet. ¶¶
11(H) & 26(A)).
(ECF No. 87 at PageID 6589; see ECF No. 12 at PageID 116-17, 121, 125, 127-29, 131-32.)
Petitioner contends that these ineffective assistance of appellate counsel claims were worthy of a
COA because they were debatable on the merits given the grant of certiorari in Davila. (ECF
No. 87 at PageID 6589.)
The Court dismissed Morris’s claims in paragraph 11(A-H) of the amended petition
because those claims were procedurally defaulted. (See ECF No. 58 at PageID 997, 1061.) The
present controlling authority in the Sixth Circuit and current United States Supreme Court
precedent does not extend the equitable exception granted under Martinez to ineffective
assistance of appellate counsel claims. The Court’s grant of certiorari in Davila could, however,
demonstrate an issue that was adequate to deserve encouragement to proceed further if Morris
established that a claim was substantial under Martinez.
1. Juror Savannah Ingram (Am. Pet. ¶ 11(B))
Morris claims that his appellate counsel’s failure to challenge the race-based peremptory
exclusion of black Juror Savannah Ingram has some merit and is debatable, where Ingram had
relatives with drug problems and white jurors who had relatives with drug or alcohol problems
were not struck. (ECF No. 87 at PageID 6592.) On consideration of Morris’s motion to alter or
amend judgment, the Court considered the ineffective assistance of trial counsel claim based on
the failure to object to the peremptory challenge against Ingram under Batson v. Kentucky, 476
U.S. 79 (1986) (Am. Pet. ¶ 9(N)), and determined that Morris had not established prejudice and
that Martinez did not require alteration or amendment of the judgment. (ECF No. 85 at PageID
6577-80.) Where Ingram had pro-prosecution leanings that could have harmed Morris, appellate
counsel could not be considered deficient for not stating a claim regarding the strike against the
The allegations are not debatable among reasonable jurists and do not deserve
encouragement to proceed further.
Morris is not entitled to a COA on the allegations in
paragraph 11(B) of the amended petition.
2. Improper Closing Argument (Am. Pet. ¶¶ 11(D) & 26(B))
Petitioner argues he is entitled to a COA on his claim that his appellate counsel was
ineffective for failing to raise constitutional challenges to the prosecution’s improper arguments
at sentencing. (ECF No. 87 at PageID 6593.) In paragraph 26(B) of the amended petition,
Morris alleges that the prosecution’s arguments at the sentencing phase were unconstitutional
stated that the jury “shall impose the death penalty”;
argued for the death penalty based on unconstitutionally vague terms in the heinousness
made inflammatory arguments that the victims were led to the slaughterhouse;
told the jury to remember the victims’ families;
told the jury to give the death sentence and thereby “render unto Caesar,” injecting
improper religious standards into the penalty phase; and
misled the jury and relieved them of their responsibility for imposing the death sentence
by telling them that, in imposing the death sentence, the jurors “didn’t do it to him.”
(ECF No. 12 at PageID 132-33.)
In the application for a COA, for example, Morris maintains that the prosecution
improperly argued that, if jurors voted for death, they would not be responsible for Petitioner’s
death. (ECF No. 87 at PageID 6593.) He contends that he is entitled to a COA because the
improper argument violated the Eighth Amendment under Caldwell v. Mississippi, 472 U.S. 320
(1985). (Id.) He asserts that, in light of Caldwell, the allegations in paragraphs 11(D) and 26(B)
of the amended petition are debatable among reasonable jurists and Davila may allow him to
overcome procedural default. (Id.) In Caldwell, the Supreme Court held that it violated the
Constitution “to rest a death sentence on a determination made by a sentencer who has been led
to believe that the responsibility for determining the appropriateness of the defendant’s death
rests elsewhere.” Caldwell, 472 U.S. at 328-29. Morris makes no specific arguments related to
other subclaims in paragraph 26(B). However, another relevant inquiry is whether appellate
counsel should have raised these claims if the purportedly improper comments or actions “so
infected the trial with unfairness as to make the resulting conviction a denial of due process.”
Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S.
With regard to Morris’s allegation that the prosecution stated in closing argument that the
jury shall impose the death penalty, the prosecutor explained:
I recognize how serious this is and so do you. But each and every one of you said
that you would do that and if the State of Tennessee made one further statement
and promise, as is the law in the State of Tennessee, you stated that if the State of
Tennessee proves to my mind beyond a reasonable doubt that the aggravating
circumstances outweigh the mitigating circumstances, then I will follow the law
and the instructions of the Court and impose the death penalty. And I say to you,
ladies and gentlemen of the jury, that beyond any reasonable doubt and to all
moral certainty the proof that you’ve heard in this case, both on evidence in chief
where you found the defendant guilty of two separate counts of murder in the first
degree and the rape of Angela Ragland, that there are no mitigating circumstances
whatsoever that come anywhere close to outweighing the mitigating
circumstances, and based upon the proof that we have in this case, the law is
clear, you shall impose the death penalty.
(ECF No. 66-15 at PageID 2906-07 (emphasis added).)
This argument is based on the
prosecution’s belief that the aggravating circumstances outweigh the mitigating ones.
statement “you shall impose the death penalty” is conditioned on the jury’s acceptance of the
Further, the Court instructed the jury that it was the “sole judge of the facts and of the law
as it applies to the facts” and that “the Court [not the prosecutor] is the proper source from which
you are to get the law.” (Id. at PageID 2930; see id. at PageID 2931 (“[t]he law makes you, the
jury, the sole and exclusive judges of the credibility of the witnesses and the weight to be given
their evidence”).) The statement “you shall impose the death penalty” when read in the context
of the prosecution’s argument and the jury instructions at sentencing does not create a debate
among reasonable jurists about this ineffective assistance of appellate counsel claim.
To the extent Morris claims that his appellate counsel was ineffective for not raising the
issues of the constitutionality of the heinous, atrocious, and cruel (“HAC”) aggravating
circumstance, this Court has held that the HAC aggravating circumstance in this case was
constitutional based on Sixth Circuit and United States Supreme Court precedent and that the
related ineffective assistance of trial counsel claim was without merit. (ECF No. 58 at PageID
1048-52.) Morris’s request for a COA is based on appellate counsel’s failure to raise a claim
about the prosecution’s argument of the purportedly unconstitutionally vague terms in the HAC
aggravating circumstance. That claim is not debatable among reasonable jurists and does not
deserve encouragement to proceed further.
Morris claims ineffective assistance of appellate counsel based on the prosecution’s
argument that the victims were led to the slaughterhouse. The prosecution stated that Erica Hurd
“laid there and was tormented and literally led out to the slaughter house.” (ECF No. 66-14 at
PageID 2914.) Hurd had “37 stab wounds, 23 of which were sustained prior to death and 14 of
which were post-mortem.” See Morris, 802 F.3d at 829. The statement that the victims were led
to the slaughterhouse was a reasonable inference given the sequence of events beginning with the
murder of Charles Ragland, the placement of Hurd in the closet, tying of Angela Ragland on the
bed, and then Morris’s return to Hurd in the closet to stab her multiple times, killing her. Id. at
The claim is not debatable among reasonable jurists and does not deserve
encouragement to proceed further.
Petitioner contends that appellate counsel should have raised as improper the statement
that the jury should remember the victims’ families. Specifically, the prosecutor stated, “There’s
a lot of other pain here and that’s the families of these victims.” (ECF No. 66-15 at PageID
The Supreme Court, in Payne v. Tennessee, 501 U.S. 808, 825 (1991), held that
“[v]ictim impact evidence is simply another form or method of informing the sentencing
authority about the specific harm caused by the crime in question” and serves “entirely legitimate
We thus hold that if the State chooses to permit the admission of victim impact
evidence and prosecutorial argument on that subject, the Eighth Amendment
erects no per se bar. A State may legitimately conclude that evidence about the
victim and about the impact of the murder on the victim’s family is relevant to the
jury’s decision as to whether or not the death penalty should be imposed. There is
no reason to treat such evidence differently than other relevant evidence is treated.
Payne, 501 U.S. at 827. However, the Supreme Court recognized that relief under the due
process clause would be appropriate if victim impact evidence introduced in the sentencing
phase of a criminal case “is so unduly prejudicial that it renders the trial fundamentally unfair.”
Id. at 825. Based on Payne, the prosecution’s argument recognizing the pain suffered by the
families of the victims is not improper or inflammatory. Therefore, the related ineffective
assistance of appellate counsel claim is not debatable among reasonable jurists and does not
deserve encouragement to proceed further.
Morris maintains that the statement about “render unto Caesar” is improper. Specifically,
the prosecution stated:
The defendant utilizes scripture and I guess I’m reminded of this. If the
aggravating circumstances are not outweighed by the mitigating, and they’re not,
you’ve got to do your obligation to impose the death penalty, and that’s
Tennessee’s way of saying, “You render unto Caesar that which is Caesar’s and
you render unto God that which is God’s.”
(ECF No. 66-15 at PageID 2928.) This statement taken in context and considering that the
prosecution is still encouraging the jury to follow the law does not make Morris’s trial
fundamentally unfair. See Billings v. Polk, 441 F.3d 238, 248-51 (4th Cir. 2006); Bennett v.
Angelone, 92 F.3d 1336, 1345-47 (4th Cir. 1996); see also Coe v. Bell, 161 F.3d 320, 351 (6th
With Payne, the Supreme Court overruled its prior decision in Booth v. Maryland, 482
U.S. 496 (1987), which held that victim impact evidence leads to the arbitrary imposition of the
death penalty. See Payne, 501 U.S. at 829.
Cir. 1998) (no due process violation where prosecution argued that “there’s certainly foundation
for capital punishment in the Bible and in the scriptures themselves”). The issue of ineffective
assistance of appellate counsel related to this statement is not debatable among reasonable jurists
and does not deserve encouragement to proceed further.
Morris further contends that he is entitled to a COA for ineffective assistance of appellate
counsel related to the prosecution’s argument that
[i]t’s time for the defendant to be held responsible for his own conduct and submit
himself to Caesar because he did that to himself. You didn’t do it to him. Don’t
let him put you on a guilt trip. His heinous conduct, the brutal, heinous, atrocious
murder is why we’re here today.
(ECF No. 66-15 at PageID 2928 (emphasis added).) The prosecution also averred:
You said that, “I will follow the law and the instructions of the Court and if the
aggravating circumstances outweigh the mitigating circumstances, I will impose
the death penalty.” Is that a happy thing to do? No, but that’s what you said you
would do and that’s what you should do based upon the law and the evidence.
(Id. at PageID 2928-29.)
The argument, taken in context, ties Morris’s conduct to his guilt and acceptance of
responsibility. However, it does not dictate the sentence or absolve the jury of its responsibility.
See Bowling v. Parker, 344 F.3d 487, 516 (6th Cir. 2003) (“there is nothing in this statement that
explicitly misinforms the jury of its role”); see Greer v. Mitchell, 264 F.3d 663, 684 (6th Cir.
2001) (distinguishing between cases like Caldwell, which try to minimize the jury’s sense of
responsibility for the death penalty, and where the prosecutor’s comments represent a correct
statement of law about aggravating and mitigating circumstances). This ineffective assistance of
appellate counsel claim about the prosecution’s argument that the jury “didn’t do it to him” is not
debatable among reasonable jurists or deserving of encouragement to proceed further.
Given that appellate counsel “need not (and should not) raise every nonfrivolous claim,
but rather may select from among them in order to maximize the likelihood of success on
appeal,” see Smith v. Robbins, 528 U.S. 259, 288 (2000), and the lack of substance to Morris’s
claims based on the prosecution’s closing argument, he is not entitled to a COA for the
allegations in paragraphs 11(D) and 26(B) of the amended petition.
3. Removal of Jurors for Cause (Am. Pet. ¶¶ 11(F) & 18)
Petitioner asserts that a COA should issue based on his appellate counsel’s failure to
appeal the exclusion of Juror Spellings. (ECF No. 87 at PageID 6593.) He states that the
exclusion of Spellings is debatable under Adams v. Texas, 448 U.S. 38 (1980). (Id.)
The Court distinguished the instant case from Adams and determined that the allegations
in paragraph 18 were without merit. (ECF No. 58 at PageID 1093.) The Court denied a COA on
that issue in its September 29, 2011, order. (Id.) As the underlying claim about Spellings’s
removal is without merit, an ineffective assistance of appellate counsel claim about the removal
is not substantial under Martinez, not debatable among reasonable jurists, and does not deserve
4. The Medical Examiner’s Testimony (Am. Pet. ¶ 11(G))
Morris alleges that his appellate counsel was ineffective for failure to state a claim about
the admission of the medical examiner’s testimony at the sentencing phase. (ECF No. 12 at
PageID 121.) He contends that his counsel failed to challenge the misleading and unscientific
testimony of pathologist O. C. Smith, especially where the Tennessee Supreme Court has held a
pathologist, in a capital case may not testify outside his area of expertise. (ECF No. 87 at
PageID 6594.) The inmate contests the scientific basis for Smith’s claims that the wounds were
inflicted with the intent to torment the victim. (Id.) Morris argues that the testimony was highly
prejudicial and misleading and that the allegations in paragraph 11(G) are debatable and worthy
of a COA. (Id.)
To support his allegations of ineffective assistance of appellate counsel in paragraph
11(G), Morris refers to his due process claim about O. C. Smith’s testimony in paragraph 13 of
the amended petition. (ECF No. 12 at PageID 121-23.) The Court found no due process
violation where Smith testified that the wounds could not necessarily dictate the circumstance
that preceded them and that he could not say, with any medical certainty, that the wounds were
“control wounds.” (ECF No. 58 at PageID 1073-75.) The Court did not find the evidence to be
prejudicial. (Id. at PageID 1075.) Without prejudice associated with the admission of this
testimony, Morris does not have a substantial ineffective assistance claim. The allegations in
paragraph 11(G) of the amended petition are not debatable among reasonable jurists and do not
deserve encouragement to proceed further.
5. Ineffective Assistance of Appellate Counsel & Voir Dire (Am. Pet. ¶¶
11(H), 9(L), 9(M), & 19)
Petitioner avers that his appellate counsel failed to raise a substantial Sixth Amendment
challenge that Jurors Atkins and Bowman were unfairly biased where the transcript shows that
they expressed clear bias against Morris during voir dire and should have been excluded from
jury service. (ECF No. 87 at PageID 6594; see ECF No. 12 at PageID 116-17, 127.) The inmate
contends that seating Atkins, who felt that Morris should have to testify at trial, was a clear
violation of the Fifth and Sixth Amendments under Franklin v. Anderson, 434 F.3d 412, 421 (6th
Cir. 2006). (ECF No. 87 at PageID 6594.) He claims that his ineffective assistance of appellate
counsel claim is meritorious under Franklin and “certainly debatable.” (Id.) Morris argues that
Bowman’s admission that he had an opinion about the case and would not be able to put it aside
is also meritorious and debatable. (Id. at PageID 6594-95.)
These claims were procedurally defaulted. (ECF No. 58 at PageID 994, 1093-94.) In
response to the motion to alter or amend the judgment, the Court addressed the allegations in
paragraphs 9(L) and 9(M) of the amended petition and found that the claims were not substantial
under Martinez. (ECF No. 85 at PageID 6569-77.) Because these claims are not substantial, the
issue of ineffective assistance of appellate counsel as applied to the failure to raise these claims,
the allegations in paragraph 11(H) of the amended petition as it relates to paragraphs 9(L) and
9(M), is not debatable among reasonable jurists. The related trial court error claim in paragraph
19 (see ECF No. 12 at PageID 127) is also not debatable among reasonable jurists and does not
deserve further consideration.
6. Ineffective Assistance of Appellate Counsel – Jury Instructions &
Argument (Am. Pet. ¶¶ 11(H), 21(A-D), & 26(A))
Morris contends that his appellate counsel ineffectively failed to raise substantial
challenges to jury instructions on reasonable doubt, intent, and premeditation that violated
Sandstrom v. Montana, 442 U.S. 510 (1979), where the instructions allowed the jury to convict
despite reasonable doubt about whether he possessed the required mens rea (Am. Pet. ¶¶ 21(AD)). (ECF No. 87 at PageID 6595; see ECF No. 12 at PageID 127-29.) Based on paragraph
26(A)(2) of the amended petition, Petitioner argues that his appellate counsel failed to challenge
the prosecution’s arguments that misled jurors to believe he could only be acquitted if he was not
“capable” of possessing mens rea when he could have been acquitted if he simply did not
possess the required mens rea. (ECF No. 87 at PageID 6595; see ECF No. 12 at PageID 13132.)
The inmate asserts that these claims are debatable where the underlying claims are
debatable and appellate counsel failed to raise them on direct appeal. (ECF No. 87 at PageID
With regard to the allegations in paragraph 21(A) of the amended petition, this Court has
determined that the attacks on the reasonable doubt jury instruction were without merit based on
Sixth Circuit precedent. (See ECF No. 58 at PageID 1039-47.) The Court determined that the
instructions referenced in paragraphs 21(B) and 21(C) were correct statements of the law and
that Martinez did not apply. (ECF No. 85 at PageID 6566-69.) With regard to the allegations in
paragraph 21(D) related to the intoxication instruction, the Court found no substantial and
injurious effect from the instruction and no entitlement to habeas relief. (See ECF No. 58 at
To the extent that there is not a meritorious claim related to the jury
instructions and no prejudice to Morris, Davila does not create an issue that is debatable among
reasonable jurists or deserving of encouragement to proceed further for the allegations raised in
In paragraph 26(A)(2) of the amended petition, Morris alleges that the prosecution
misstated the law and misled the jury about its constitutionally-required burden of proof when it
argued that he “could be only acquitted only if he was precluded from forming the requisite mens
rea and/or ‘cannot develop’ the mens rea, or ‘can’t form’ premeditation and/or was not ‘capable
of’ or ‘could not have possessed’ the requisite mens rea.” (ECF No. 12 at PageID 131-32
(internal citations omitted).) Petitioner submits that, from a constitutional perspective, the proper
question is not the capacity to form intent, but whether the jury believed, beyond a reasonable
doubt, that he actually had the necessary mens rea. (Id. at PageID 132.)
Specifically, the prosecution argued about Morris’s defense of voluntary intoxication and
how it could affect a guilt determination “if he could not form the requisite intent to commit the
Morris argues, without explanation, that this claim is debatable under Buck. (ECF No.
87 at PageID 6595.) As there is no clear correlation between Buck and the jury instructions at
issue, the Court finds that these claims are not debatable among jurists of reason based on that
offense of murder in the first degree[.]” (ECF No. 66-14 at PageID 2697-98 (emphasis added).)
The prosecution argued that the simplified version of the law is
[t]hat voluntary intoxication, before it can be a defense to either homicide, murder
in the first degree or aggravated rape, is that the defendant is just so drunk that he
cannot develop the requisite intent to commit the crime. He’s just so drunk that
he cannot develop the requisite intent to commit a crime.
(Id. at PageID 2699 (emphasis added).) The prosecution further stated “let’s look at [the case]
and let’s decide if the proof in this case shows that the defendant was so voluntarily intoxicated
that he could not form the reckless intent to commit murder in the first degree, premeditated,
deliberate murder, or commit an aggravated rape.” (Id. at PageID 2700 (emphasis added).) The
prosecution continued about the capability of forming intent and reviewed the statements in
evidence to show multiple examples of premeditation and intent and described Morris’s actions
as having “[p]lanning, purpose, cool deliberation, intent.” (Id. at PageID 2703-05.)
The prosecution stated that intoxication was relevant to an essential element of the
defendant’s culpable mental state and acknowledged that “[t]he State must prove beyond a
reasonable doubt the required culpable mental state of the defendant which is . . . [t]hat the
defendant acted intentionally.” (Id. at PageID 2723-24.) The only reason that the capacity to
form intent came into consideration was the voluntary intoxication defense. The prosecution
focused on the evidence to show actual intent.
The prosecution further stated “[n]ow, don’t look to me to the law and don’t look to the
defense team. The Judge will instruct you at the appropriate time as to what the law is.” (Id. at
PageID 2698.) Finally, the prosecution directly addressed its burden of proving intent. (Id. at
PageID 2724.) The prosecution’s argument was not misleading and the allegations in paragraph
26(A) of the amended petition lack merit. The resolution of the claim of ineffective assistance of
appellate counsel as it relates to paragraph 26(A) is not debatable among reasonable jurists as it
relates to Davila.
The allegations of ineffective assistance of appellate counsel as they relate to paragraphs
21(A-D) and 26(A) are not debatable among reasonable jurists, not deserving to proceed further,
and not entitled to a COA.
Morris contends that the Court should grant a COA for the allegations in paragraphs
10(A-D) of the amended petition because of the grant of certiorari in Wilson v. Sellers, 137 S. Ct.
1203 (2017). (ECF No. 87 at PageID 6596.) He alleged ineffective assistance of counsel at
sentencing based on counsel’s failure to (1) prepare an effective mitigation strategy (Am. Pet. ¶
10(A)); (2) offer expert psychiatric and pharmacological testimony (id. at ¶ 10(B)); (3) present
Morris’s mental condition in a biographical context and address the fact that he had suffered for
more than twenty years without diagnosis or treatment (id. at ¶ 10(C)); and (4) provide evidence
that his cocaine use was “in part, unconscious self-medication” (id. at ¶ 10(D)). (ECF No. 12 at
This Court previously granted relief on the allegations in paragraphs 10(A-D) and was
reversed by the Sixth Circuit. (ECF No. 58 at PageID 1124.) See Morris, 802 F.3d at 842-45.
The petition for writ of certiorari to the United States Supreme Court was denied, and the
petition for rehearing was denied. See Morris v. Westbrooks, 137 S. Ct. 44 (2016) & Morris v.
Westbrooks, 137 S. Ct. 540 (2016). There were no dissenting opinions at either the Sixth Circuit
or the United States Supreme Court.
The inmate argues that the Sixth Circuit denied relief positing that counsel could have
proceeded as they did at sentencing to avoid potential rebuttal evidence, but counsel did not state
that the failure to present mitigating evidence was to avoid rebuttal. (ECF No. 87 at PageID
6596.) See Morris, 802 F.3d at 844 (“By not presenting additional mental-health testimony in
the mitigation phase, counsel avoided opening the door to rebuttal evidence of Morris’s history
of drug dealing, drug use, and other illegal acts.”). Morris argues that the Sixth Circuit “felt that
it had the liberty to create a reason for counsel’s actions not contained in the record, and thus
uphold counsel’s actions under 28 U.S.C. § 2254(d).”6 He contends that the Sixth Circuit upheld
the state court decision as reasonable based on a reason never expressed by the state court.
Petitioner asserts that the Sixth Circuit’s reasoning is “highly questionable” in light of
Wilson. (ECF No. 87 at PageID 6597.) According to the inmate, in Wilson, the Supreme Court
will be deciding “whether, when a state court has issued a written opinion, Harrington [v.
Richter, 562 U.S. 86 (2011),] allows a federal court to uphold a state court decision by positing
reasons for the state judgment even if never expressed by the last state court to issue a written
opinion.” (Id.) Morris insists that Wilson calls into question the Sixth Circuit’s prior decision in
this case making the denial of relief debatable. (Id.)
Based on the law of the case, it appears that Morris is foreclosed from relief and should
not be encouraged to proceed further with this claim. Further, the question pending before the
United States Supreme Court in Wilson is:
Did this Court’s decision in Harrington v. Richter, 562 U.S. 86 (2011), silently
abrogate the presumption set forth in Ylst v. Nunnemaker, 501 U.S. 797 (1991) -that a federal court sitting in habeas proceedings should “look through” a
summary state court ruling to review the last reasoned decision -- as a slim
majority of the en banc Eleventh Circuit held in this case, despite the agreement
of both parties that the Ylst presumption should continue to apply?
The Sixth Circuit further stated, “[t]his court may entertain possible reasons for
counsel’s decisions even if not expressed by counsel. Accordingly, the risk of rebuttal evidence
is a valid consideration whether or not Morris’s counsel considered it.” Morris, 802 F.3d at 845
(internal citation omitted).
See https://www.supremecourt.gov/qp/16-06855qp.pdf (last accessed May 17, 2017). In the
instant case, there was not a summary state court ruling on Morris’s claims of ineffective
assistance of counsel at sentencing. See Morris v. State, No. W2005-00426-CCA-R3-PD, 2006
WL 2872870, at *59-64 (Tenn. Crim. App. Oct. 10, 2006). Petitioner’s case does not present the
issue raised in Wilson, and his argument that Wilson makes the law of the case inapplicable is
without merit. (See ECF No. 87 at PageID 6597.) The allegations in paragraphs 10(A-D) are
not debatable among reasonable jurists and should not be encouraged to proceed further by
granting a COA.
Petitioner argues that the Court should a grant a COA, based on Buck, on his claims that
his trial and appeal were tainted by racism and his counsel were ineffective for failing to object
to the racism. (Id. at PageID 6598.) He seeks relief through a COA for the allegations in
paragraphs 9(N), 9(P), 24, 27, 11(H), and 29(L) of the amended petition. (Id.) Morris contends
that the debatability of these claims is “apparent” in light of the Supreme Court’s decision in
Buck. (Id. at PageID 6590, 6598.) These allegations involve ineffective assistance of counsel
surrounding a peremptory challenge against Savanna Ingram, the sole black jury pool member
who was not removed for cause (Am. Pet. ¶¶ 9(N) & 24), the all-white jury (id. at ¶ 24),
ineffective assistance of trial counsel claim through the exclusion of blacks from the position of
grand jury foreperson (id. at ¶ 27), the Tennessee Supreme Court’s explicit use of race in
conducting proportionality review (id. at ¶ 29(L)), and the related ineffective assistance of
appellate counsel based on the state supreme court’s proportionality review (id. at ¶ 11(H)).
(ECF No. 87 at PageID 6590; see ECF No. 12 at PageID 117, 121, 130-31, 133, 136.)7
Morris states that the Supreme Court in Buck held that: (1) Buck’s trial counsel were
ineffective for presenting evidence that blacks as a race were more likely to engage in future acts
of violence; (b) Buck was prejudiced by counsel’s failures; (c) Buck was entitled to Fed. R. Civ.
P. 60(b)(6) relief because of the extraordinary circumstance that his capital sentence was tainted
by racism; and (d) Buck was entitled to the application of Martinez to his claim because it had
(ECF No. 87 at PageID 6598.)
Petitioner cites Chief Justice Roberts’s
condemnation of the racism which infected Buck’s trial stating that “[s]ome toxins can be deadly
in small doses.” (Id.); Buck, 137 S. Ct. at 777. Morris further noted Justice Roberts’s repeated
emphasis on the Texas Attorney General’s statement that “it is inappropriate to allow race to be
considered as a factor in our criminal justice system” and that Buck may have been sentenced to
death because of his race. (Id.); Buck, 137 S. Ct at 770, 778-79.
The inmate argues that Buck establishes that racism in a capital case is an extraordinary
circumstance requiring a reviewing court to decide a petitioner’s claim that trial counsel was
ineffective for allowing racism to taint the case. (ECF No. 87 at PageID 6599.) He submits this
is “precisely what occurred” here, as Morris alleges that his trial counsel were ineffective for
failing to object to the striking of Ingram and to the racial discrimination against blacks in the
selection of the grand jury foreperson. (Id.)
Petitioner avers that Buck makes it clear that a state system may not “provide support for
making a decision on life or death on the basis of race” and that it is “inappropriate to allow race
The ineffective assistance claims are presented in paragraph 9(N) incorporating
paragraph 24, 9(P) incorporating paragraph 27, and paragraph 11(H) incorporating paragraph
29(L). (See ECF No. 87 at PageID 6590, 6598.)
to be considered as a factor in our criminal justice system.” (Id.); see Buck, 137 S. Ct. at 770,
776, 778-79. He contends that these statements in Buck confirm that he was also denied his
constitutional rights to a fair proportionality review on direct appeal and that his counsel were
ineffective for failing to argue this point on appeal, as alleged in paragraphs 11(H) and 29(L).
(Id. at PageID 6599-600.)
The Supreme Court in Buck concluded that:
Defense counsel’s performance during the penalty phase of a capital murder trial, in
presenting expert testimony that the defendant was statistically more likely to act
violently in the future (establishing his future dangerousness) because of the immutable
characteristic that he was black, fell outside the scope of competent representation;
That the Fifth Circuit’s analysis went beyond the threshold inquiry of determining
whether the issue was debatable among jurists of reason when it denied the COA; and
That Buck’s case presented an “extraordinary circumstance” under Fed. R. Civ. P.
60(b)(6) because “Buck may have been sentenced to death in part because of his race.”
Buck, 137 S. Ct. at 774-78. The majority made strong statements about racial discrimination in
the administration of justice and about race being presented to the jury as a factor in the
determination of the death penalty. Id. at 778-79. Specifically, the Court stated,
when a jury hears expert testimony that expressly makes a defendant’s race
directly pertinent on the question of life or death, the impact of that evidence
cannot be measured simply by how much air time it received at trial or how many
pages it occupies in the record. Some toxins can be deadly in small doses.
Id. at 777.
Although the issues raised by Morris here involve race, they are not the claims presented
before the United States Supreme Court in Buck. Unlike in Buck, Petitioner’s jury was not
presented expert evidence, or any evidence, that would tie his race to an aggravating factor in the
penalty phase. Further, there is no indication in the record that he was sentenced to death based
on his race. Buck was an extraordinary circumstance, which is not present in the instant case.
See Buck, 137 S. Ct. at 781 (Thomas, J., dissenting) (“Today’s decision has few ramifications, if
any, beyond the highly unusual facts presented here.”)
The mere insertion of race as a collateral issue, as with the issues presented here, does not
make a claim debatable among reasonable jurists based on Buck. The allegations in paragraphs
9(N), 9(P), 24, 27 11(H) & 29(L) of the amended petition are not entitled to a COA.
Morris argues that he is entitled to a COA for “[a]ll procedurally defaulted ineffectiveassistance-of-trial-counsel claims, for which he has never received any application of Martinez . .
.,” including the allegations in paragraphs 9(N) and 9(P) of the amended petition incorporating
paragraph 27, 9(K) incorporating 21(B-D), 9(L), and 9(M). (ECF No. 87 at PageID 6590.) He
insists that the denial of any application of Martinez to his procedurally defaulted ineffective
assistance of trial counsel claims violates his right to have the governing law fairly and properly
applied during his initial federal habeas corpus proceedings. (Id. at PageID 6600.) The inmate
claims that it is debatable whether he is entitled to application of Martinez to the procedurally
defaulted ineffective assistance of trial counsel claims. (Id.) As Martinez was decided while his
case was on appeal, Morris submits it “cannot be right” that Martinez is not applied. (Id. at
The law of the case, while this case was on appeal, rejected Morris’s claim of entitlement
to Martinez review of his ineffective assistance of trial counsel claims. Further, Martinez
provides an equitable remedy, which has not, in most cases, been determined to be an
extraordinary circumstance entitling a petitioner to post-judgment relief. Review of these claims
should not be encouraged to proceed based not only on the procedural default, but on the lack of
substance of the claims.8 Without a substantial claim, Morris would not be entitled to Martinez
relief. He is not entitled to a COA on the application of Martinez to the allegations in paragraphs
9(N) and 9(P) incorporating 27, 9(K) incorporating 21(B-D), 9(L), and 9(M).
In this case, there can be no question that the claims in the petition are without merit.
Because any appeal by Morris on the issues raised in this petition does not deserve attention, the
Court DENIES a COA. His application for a COA is DENIED.
IN FORMA PAUPERIS STATUS ON APPEAL
Rule 24(a)(1) of the Federal Rules of Appellate Procedure provides that a party seeking
pauper status on appeal must first file a motion in the district court, along with a supporting
affidavit. However, if the district court certifies that an appeal would not be taken in good faith,
or otherwise denies leave to appeal in forma pauperis, the prisoner must file his motion to
proceed in forma pauperis in the appellate court. See Fed. R. App. P. 24(a)(4)-(5). In this case,
for the same reasons it denies a COA, the Court determines that any appeal would not be taken in
good faith. It is therefore CERTIFIED, pursuant to Federal Rule of Appellate Procedure 24(a),
that any appeal in this matter would not be taken in good faith, and leave to appeal in forma
pauperis is DENIED.9
Morris failed to further pursue allegations in paragraph 27 of the amended petition,
despite his representation to this Court that he was filing a motion to reopen the state postconviction proceedings. (See ECF No. 58 at PageID 1104-05.)
If Petitioner files a notice of appeal, he must pay the full $505 appellate filing fee or file
a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of
Appeals within thirty days of the date of entry of this order. See Fed. R. App. P. 24(a)(5).
IT IS SO ORDERED this 18th day of May 2017.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE
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