Morris v. Parker
Filing
18
ORDER DISMISSING CASE; Order Denying Certificate of Appealability; Order Certifying Appeal Not Taken in Good Faith; and Order Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by Judge S. Thomas Anderson on 6/30/14. (Anderson, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
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ROOSEVELT MORRIS,
Petitioner,
vs.
TONY PARKER,
Respondent.
No. 11-2331-STA-cgc
ORDER OF DISMISSAL
ORDER DENYING CERTIFICATE OF APPEALABILITY
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
On April 28, 2011, Petitioner Roosevelt Morris, Tennessee
Department of Correction (“TDOC”) prisoner number 373310, an inmate
at the Northwest Correctional Complex (“NWCX”) in Tiptonville,
Tennessee, filed a pro se petition pursuant to 28 U.S.C. § 2254.
(Petition (“Pet.”), ECF No. 1.)
On June 29, 2011, Petitioner
Morris filed an amended petition.
(Amended (“Am.”) Pet, ECF No.
3.)
On November 11, 2011, the Court directed the Respondent to
file the state-court record and a response to the amended petition.
(Order, ECF No. 4.)
answer.
On February 13, 2012, Respondent filed an
(Answer, ECF No. 10.)
filed the state-court record.
13.)
On February 15, 2012, Respondent
(Record (“R.”), ECF Nos. 11, 12, &
On April 24, 2012, Petitioner Morris filed a reply.
ECF No. 16.)
(Reply,
I.
STATE COURT PROCEDURAL HISTORY
On August 8, 2002, a grand jury sitting in Shelby County,
Tennessee, indicted Roosevelt Morris on two counts of attempted
first degree murder.
(Indictments, Transcript (“Tr.”) of Record
(“R.”), ECF No. 11-1 at Page ID # 129-31.)
On January 24, 2004,
following a jury trial in the Criminal Court for Shelby County,
Tennessee, Petitioner was convicted of both counts as charged.
(Tr. of R., ECF No. 11-1 at Page ID # 137.)
The trial court
sentenced Morris to an effective sentence of fifty (50) years in
prison.
(Judgments (“J.”), Tr. of R., ECF No. 11-1 at Page ID 149-
50.) The Tennessee Court of Criminal Appeals affirmed Petitioner’s
convictions, but modified his sentence to an effective forty-seven
(47) years in prison. State v. Morris, No. W2004-02277-CCA-MR3-CD,
2005 WL 6235723 (Tenn. Crim. App. Sept. 7, 2005).
On October 25, 2005, Petitioner Morris filed a pro se petition
pursuant to the Tennessee Post-Conviction Procedure Act, Tenn. Code
Ann. §§ 40-30-101 to -122, in the Criminal Court for Shelby County.
(Pet. for Relief from Conviction or Sentence, Tr. of R., ECF No.
12-4 at Page ID # 1111-19.)
amended
petition.
(Am.
On September 1, 2006, counsel filed an
Pet.
for
Relief
from
Conviction
Sentence, Tr. of R., ECF No. 12-4 at Page ID # 1120-53.)
or
On
February 5, 2008, counsel filed a petition seeking retroactive
application of Blakely v. Washington, 542 U.S. 296, 124 S. Ct.
2531, 159 L. Ed. 2d 403 (2004).
(Pet., Tr. of R., ECF No. 12-4 at
2
Page ID # 1276-80.)
An evidentiary hearing was held, and on May
27, 2008, the post-conviction trial court issued an order denying
relief.
(Order, Tr. of R., ECF No. 12-4 at Page ID # 1288-1306.)
The Tennessee Court of Criminal Appeals affirmed. Morris v. State,
No. W2008-01449-CCA-R3-PC, 2010 WL 3970371 (Tenn. Crim. App. Oct.
11, 2010), perm. app. denied (Tenn. Jan. 13, 2011).
The facts underlying Petitioner’s conviction are set forth in
the opinion of the Tennessee Court of Criminal Appeals on direct
appeal:
Teresa Washington testified that she met and began
dating Roosevelt Morris in December 2000.
In
approximately September 2001, the two began living
together in a residence on Glankler. In approximately
November 2001, Morris moved out of the residence, taking
his furniture with him. Ms. Washington stated that she
“just no longer want[ed] to be with him.
He was
controlling.” Ms. Washington testified that after Morris
left, he started calling her and going by her residence
and her work-place.
She did not want or invite or
encourage these calls or visits.
Ms. Washington stated that Morris threatened her,
“say[ing] things like he wasn’t going to leave [her]
alone. And that if he couldn’t have [her], no one else
could have [her.]” When Ms. Washington met James Davis
in January 2002 and began dating him, she sought and
obtained an order of protection against Morris.
The
order was entered by the general sessions court of Shelby
County, Tennessee, on February 12, 2002. A copy of the
order was admitted into evidence and provides, in
pertinent part, that Roosevelt Morris “is refrained from
coming about [Ms. Washington] for any purpose and
specifically from abusing, threatening to abuse [her], or
committing any acts of violence upon [her].” The order
also prohibited Morris from telephoning Ms. Washington,
stalking her, and committing acts of violence against her
property. According to Ms. Washington, Morris was not
deterred by the order, but continued to call her and come
over to her home.
She stated that, at one point, he
3
“pulled up all [her] landscaping and put black tar over
[her] motion detector lights so that they wouldn’t go off
and unscrewed [her] light bulbs.”
Ms. Washington testified that Morris called her on
the morning of May 17, 2002, and told her he “had
something for [her].” She replied that he did not have
anything for her and hung up. That night, she arrived
home at about 12:30 a.m. Mr. Davis was already at her
home. She parked her car behind his in the single lane
driveway.
She went to bed with Mr. Davis but heard
noises that sounded like someone was outside. She told
Mr. Davis but he replied that it was just the wind. She
tried to look out of her windows with a flashlight but
did not see anything.
She and Mr. Davis woke up at about four o’clock that
morning.
Mr. Davis had to leave to go to work.
Ms.
Washington went out of the house so that she could move
her car in order that Mr. Davis could leave in his car.
She opened the front door and began to open the glass
storm door.
Mr. Davis was standing behind her.
Ms.
Washington described what happened next:
I opened my door and I seen someone standing over
to my right and I screamed.
And I seen this
flashing, a boom go off. And it went off again. I
just saw a flash. So I fell out on my floor and I
played dead.
Ms. Washington said that, with the second “boom,”
which was just seconds after the first one, she felt a
bullet go past her left temple. As she was laying in the
doorway curled in a fetal position “playing dead,” she
felt the person step over her into the house. She then
heard more gunshots and the sound of one or more persons
falling to the floor.
Ms. Washington next heard Mr.
Davis pleading for his life and telling the intruder to
let the gun go. At that point, she testified, she heard
Morris’ voice. Morris said that they had ruined his life
and that he was going to kill them.
When Ms. Washington realized who
she jumped up and ran to see if she
Davis in wresting the gun from Morris.
on the floor struggling, with Mr. Davis
Ms. Washington jumped on Mr. Davis’
down, trying to get the gun away from
4
the intruder was,
could assist Mr.
The two men were
on top of Morris.
back and reached
Morris. She then
noticed that Morris was wearing gloves. At that point,
she testified, she “just panicked and . . . just went
after [Morris’] eyeballs.” Ms. Washington tried to gouge
out Morris’ eyes with her fingers.
Ms. Washington did not realize that Mr. Davis had
been shot. As she was on his back trying to injure the
Morris, Mr. Davis told her that he had been shot and that
she was “smushing” him such that he couldn’t breathe.
Ms. Washington got off of Mr. Davis and ran to a
neighbor’s house to call the police. When the neighbor
answered the door, she explained what was happening. The
neighbor called the police and would not let Ms.
Washington leave until the police arrived.
James Davis testified that he is six feet, two
inches tall and weighs 280 pounds. He stated that he
knew of Morris prior to the shooting, but had not met
him. They had spoken over the telephone three or four
times when Morris was seeking to speak to Ms. Washington.
Mr. Davis stated that his conversations with Morris
during these calls were not hostile.
Mr. Davis testified that, on the night in question,
he arrived at Ms. Washington’s house at around midnight;
Ms. Washington was already there. They went to bed and
woke up at about four o’clock a.m.; he was running late
for work and was in a hurry. When he went to leave, Ms.
Washington was in front of him at the front door. Mr.
Davis testified:
Ms. Washington opened the inner door and she
unlocked the outer door and all of a sudden a body
appear.
I hear a shot, boom, she screams, she
falls.
And, well, after that this gentleman
entered the house, he shoots me and he’s just goes
shooting three or four more times.
Mr. Davis testified that the “gentleman” was wearing a
cap, a black jacket and black jeans. He was also wearing
black gloves.
Mr. Davis stated that he thought he recognized the
intruder as a man that he had seen walking in front of
the house a number of times. Mr. Davis explained that
the intruder was the same height and had the same “high
cheekbones” as the man he had seen previously.
5
Mr. Davis explained that the intruder shot him as he
stepped over Ms. Washington and entered the house. Mr.
Davis was shot in the right chest. The intruder shot
several more times as he came into the house. The shots
then paused and Mr. Davis noticed that the intruder was
“messing with” the gun because it had “jammed.” At that
point, Mr. Davis threw his hands around the intruder’s
neck and “throwed him on [the] floor.” The intruder hit
his head on the coffee table as the two men fell to the
floor. The two men began struggling over the gun. The
intruder said, “Y’all don’t know what love is. Y’all
done ruined my life.”
The men continued to struggle over the gun. Ms.
Washington got up and jumped on Mr. Davis’ back. She
tried to gouge out the intruder’s eyes and was jumping up
and down on Mr. Davis while doing so. Mr. Davis told her
to “get up” because he had been shot. Ms. Washington
then ran out of the house.
Mr. Davis kept trying to get the gun away from the
intruder but he would not let it go.
After Ms.
Washington left, he finally let go of it.
Mr. Davis
stated that the intruder then got up and ran away. Mr.
Davis was not able to chase after him, but made it out
onto the front porch.
He hollered for help but kept
getting weak. He laid down on the porch and the next
thing he knew, the police were there. They discovered a
handgun under Mr. Davis and took control of it.
The
paramedics then arrived and took Mr. Davis to the
hospital.
Mr. Davis identified Morris at trial as the intruder
who shot him. Mr. Davis also identified a cap recovered
at the scene as the one worn by Morris during the attack.
Officer James Gaylor received a “shots fired” call
and responded to the scene at about 4:45 in the morning
on May 18, 2002. He saw a man lying on the porch who
appeared to be hurt or wounded.
Officer Gaylor
approached and noticed a handgun laying under the man;
the man did not have the gun in his hand. Officer Gaylor
recovered the gun and handed it to Officer Paul Bishop,
who had also arrived on the scene.
Officer Paul Bishop testified that he checked the
gun and found one live round in the chamber, none in the
magazine. Officer Bishop described the gun as a .380
6
semiautomatic.
Officer Bishop identified the gun at
trial and it was admitted into evidence. He stated that
he determined during his investigation that the gun had
not been reported stolen, but he did not know who owned
the gun.
Officer Bishop explained that Ms. Washington was
across the street when he arrived,
“frantically
screaming.” She came over to them as they were attending
to Mr. Davis. Officer Bishop stated that it took about
an hour for Ms. Washington to tell him what had happened.
By this time, Mr. Davis had been transported to the
hospital.
Officer Bishop testified as to what Ms.
Washington told him as follows:
She stated that her boyfriend, Mr. Davis, had to go
to work. That she had to move her car, it was a
single car driveway with the two cars parked in the
drive. She said that she opened the door, she saw
something off to the side and then heard two shots.
The door that she had opened was a wrought iron
door that had glass panels in it. The glass panel
shattered. She fell backwards into the house.
She then stated that, that she was laying on the
ground when her ex-boyfriend rushed into the house,
more shots were fired. Mr. Davis was struck. That
the two were wrestling on the ground. And she told
me that she tried to gouge his eyes out.
Officer Bishop also stated that Ms. Washington told him
the attacker’s name was Roosevelt Morris. She also told
him that Mr. Morris had threatened her over the phone the
day before, telling her he had “something for [her].”
Ms. Washington told Officer Bishop about the order of
protection.
Officer Bishop went to the hospital later that
morning and spoke with Mr. Davis. He asked Mr. Davis
about what had happened and Mr. Davis told him “that he
was leaving his girlfriend’s house when her ex-boyfriend
entered the house. That they fought over a gun and he
got shot.”
Mr. Davis told Officer Bishop that the
ex-boyfriend had brought the gun into the house.
The police put out a bulletin on Morris advising
that he might have eye injuries. A call came in from the
same hospital in which Mr. Davis was located that a man
7
had come in with eye injuries. Officer Bishop responded
and found Morris in a trauma room. Morris’ eyes were
bleeding. Officer Bishop asked Morris his name, and he
responded, “Roosevelt Morris.”
Officer Bishop placed
Morris under arrest.
Officer Bishop had no further
conversation with Morris.
Sergeant Michelle Oliver testified that she was one
of the crime scene officers investigating this case. At
the scene, she found broken glass on the front porch and
what appeared to be blood.
She described the items
inside the front room of the house as “disheveled.” She
and Officer Alvin Peppers collected two empty shell
casings from inside the house and she saw two holes in
one of the walls that appeared to have been made by
bullets. They found no shell casings in the yard. She
did not test for any fingerprints at the scene.
Officer Alvin Peppers, who assisted Sgt. Oliver as
a crime scene officer, testified that there appeared to
have been a struggle inside the residence. He described
the two shell casings collected as .380 caliber.
Morris testified on his own behalf. He acknowledged
his past romantic relationship with Ms. Washington and
agreed that they had lived together on Glankler for
several months. He offered a different explanation of
why they broke up, however. Morris testified that Ms.
Washington had “at times . . . a very nasty attitude, and
[was] very controlling and very demanding.” Morris also
found Ms. Washington’s mother “absolutely intolerable.”
The final straw, however, was some nude photographs that
Ms. Washington kept of her ex-boyfriends. Ms. Washington
refused to destroy the photographs in spite of Morris’
request.
When he discovered that she had kept the
photographs, he “just couldn’t . . . take no more.” At
that point, he moved out and they broke up.
Morris testified that Ms. Washington was pregnant at
the time they broke up. He stated that, after he left,
she filled up his answering service with messages: “all
of them were pleading [him] to come back home. Why did
[he] leave? . . . Oh, what about the baby?” When he
returned the calls a few days later, she was “absolutely
furious.”
She told him she was going to have an
abortion.
8
Morris next spoke with Ms. Washington by telephone
in January.
He described this conversation as “very
amiable.” He stated that she told him that she had had
the abortion, and wanted to know if he was interested in
knowing if it was a boy or a girl.
He thought he
remembered her telling him it was a boy.
Later that
month, he testified, they got together and ate, went
shopping, and then to a hotel. Morris stated that he and
Ms. Washington had consensual sexual contacts three or
four times between January 2002 and May 18, 2002. Morris
also stated that he was aware of the order of protection
during this time.
Morris testified that Ms. Washington left a message
on his service on May 17, 2002. When he returned the
call, she told him she wanted to get together. He asked
her for a good time to come by, and she told him it would
have to be after three a.m. so that Mr. Davis would be
gone. She told him to knock “lightly” on the door and
that if she did not answer, to leave. Morris followed
these instructions. Ms. Washington opened the door and
as he began to walk into the house, he noticed a “strange
look” on Ms. Washington’s face. Morris stated that it
“wasn’t a pleasant look.” As he went through the door,
he stated, he saw Ms. Washington looking beyond him and
he felt a “presence” behind him. He turned around and
saw Mr. Davis behind him with a gun.
According to Morris, he and Mr. Davis began
struggling with the gun at that point. Morris described
himself as five feet, six inches tall, 180 pounds, and
said he knew what he had to do was to hold onto the hand
in which Mr. Davis held the gun. Morris stated, “I would
not let it go.”
During the struggle, Ms. Washington
struck Morris on the back of his head with an object.
Morris stated that the gun went off several times
during the struggle. Morris stated that the gun went off
while they were in the house and that the struggle
continued outside onto the porch where the gun discharged
again. During the struggle, somebody started gouging him
in his eyes.
At some point he heard Mr. Davis say
something about being hurt or hit or something and while
Mr. Davis seemed distracted by his condition, Morris
fled. He stated that he ran around to the next street
and returned to the hotel room that he had rented for his
“rendezvous” with Ms. Washington. From there he managed
to drive to his brother’s house where he was living, in
9
spite of his “substantial[ly] injured” eyes. From there,
he stated, his brother called 911. An ambulance arrived
and took him to the hospital.
According to Morris, he had suffered from a
“fractured skull” and “air on the brain.” Additionally,
“the protective skin over the outer eye was severely
lacerated” and his corneas and retinas were “severely
damaged.” He was told, he said, that his fractured skull
could not be treated and he was given “something, they
said it would, they would dissolve that air bubble.”
State v. Morris, 2005 WL 6235723 at *1-*6.
II.
PETITIONER’S FEDERAL HABEAS CLAIMS
In this § 2254 petition, Morris contends that:
1.
trial counsel provided ineffective assistance by:
(a)
failing to object to the State’s questions
about Petitioner’s post-arrest silence during
trial (Am. Pet., ECF No. 3 at Page ID # 29);
(b)
failing to object to the State’s comments
about Petitioner’s post-arrest silence during
closing argument (Am. Pet., id.);
(c)
failing to object to other instances of
prosecutorial
misconduct
during
closing
argument (Am. Pet., ECF No. 3 at Page ID #
30);
(d)
failing to move for dismissal of charges, or
in the alternative, failing to request a jury
instruction as to lost or destroyed evidence
(Am. Pet., id.);
(e)
failing to adequately investigate the case by
investigating ownership of the handgun (Am.
Pet., ECF No. 3 at Page ID # 31);
(f)
failing to adequately investigate the case by
having the pistol, casing, clip, and unfired
bullet tested for fingerprints (Am. Pet.,
id.);
10
(g)
(h)
failing to adequately investigate the case by
procuring James Davis’ medical records (Am.
Pet., id.);
(i)
failing to adequately investigate the case by
investigating Teresa Washington’s background
(Am. Pet., id.);
(j)
failing to object or raise in a motion for new
trial the trial court’s charge to the jury on
identity (Am. Pet., id.);
(k)
failing to deliver an
argument (Am. Pet., id.);
(l)
opening the door to cross-examination about
Petitioner’s post-arrest silence;
(m)
2.
failing to adequately investigate the case by
interviewing Teresa Washington’s neighbors
(Am. Pet., id.);
failing to ask for recusal of the trial judge
after comments the judge made at a bond
hearing (Am. Pet., ECF No. 3 at Page ID # 3132);1 and
effective
closing
the sentences imposed violate Petitioner’s Sixth
Amendment right to trial by jury under Blakely v.
Washington (Am. Pet., id.).
Morris raised the foregoing issues of ineffective assistance
in
the
post-conviction
petition
(Am.
Pet.
for
Relief
from
Conviction or Sentence, Tr. of R., ECF No. 12-4 at Page ID # 112250), but failed to present issue 1(d), issue 1(e), issue 1(g),
1
The amended petition also contends that the cumulative effect of
counsel’s errors constitutes ineffective assistance.
(Am. Pet., ECF No. 3 at
Page ID # 32.)
The Supreme Court has not held that distinct constitutional
claims can be cumulated to grant habeas relief. Lorraine v. Coyle, 291 F.3d 416,
447 (6th Cir. 2002) (“The Supreme Court has not held that distinct constitutional
claims can be cumulated to grant habeas relief.”), amended on other grounds, 377
F.3d 459 (6th Cir. 2002); see also Gillard v. Mitchell, 445 F.3d 883, 898 (6th
Cir. 2006) (same); Moore v. Parker, 425 F. 3d 250, 256 (6th Cir. 2005) (same).
This issue is without merit and is DENIED without further discussion.
11
issue 1(h), issue 1(i), issue 1(j), issue 1(k), issue 1(l), and
issue 1(m) to the Tennessee Court of Criminal Appeals in the postconviction appellate proceedings.
at Page ID # 2283.)
(Appellant’s Br., ECF No. 13-8
Morris presented issue 2 to the Tennessee
Court of Criminal Appeals on direct appeal.
(Appellant’s Br., ECF
No. 12-1 at Page ID # 1054-55.)
III. LEGAL STANDARDS
The statutory authority for federal courts to issue habeas
corpus relief for persons in state custody is provided by 28 U.S.C.
§ 2254, as amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”).
A federal court may grant habeas relief to
a state prisoner “only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United
States.”
A.
28 U.S.C. § 2254(a).
Exhaustion and Procedural Default
Twenty-eight U.S.C. §§ 2254(b) and (c) provide that a federal
court may not grant a writ of habeas corpus on behalf of a state
prisoner
unless,
with
certain
exceptions,
the
prisoner
has
exhausted available state remedies by presenting the same claim
sought to be redressed in a federal habeas court to the state
courts.
Cullen v. Pinholster, ___ U.S. ___, ___, 131 S. Ct. 1388,
1398, 79 L. Ed. 2d 557 (2011).
12
The petitioner must “fairly
present”2 each claim to all levels of state court review, up to and
including
the
state’s
highest
court
on
discretionary
review,
Baldwin v. Reese, 541 U.S. 27, 29, 124 S. Ct. 1347, 1349, 158 L.
Ed. 2d 64 (2004), except where the state has explicitly disavowed
state supreme court review as an available state remedy, O’Sullivan
v. Boerckel, 526 U.S. 837, 847-48, 119 S. Ct. 1728, 1733-34, 144 L.
Ed. 2d 1 (1999). Tennessee Supreme Court Rule 39 eliminated the
need to seek review in the Tennessee Supreme Court to “be deemed to
have exhausted all available state remedies.”
Adams v. Holland,
330 F.3d 398, 402 (6th Cir. 2003), cert. denied, 541 U.S. 956, 124
S. Ct. 1654, 158 L. Ed. 2d 392 (2004); see Smith v. Morgan, 371 F.
App’x 575, 579 (6th Cir. 2010) (“Adams not only requires the
federal courts to ensure that the state courts have the first
opportunity to review and evaluate legal claims . . . but also
mandates that the federal courts respect the duly-promulgated rule
of the Tennessee Supreme Court that recognizes the law and policymaking function of that court and the court’s desire not to be
entangled in the business of simple error correction”).
The procedural default doctrine is ancillary to the exhaustion
requirement.
See Edwards v. Carpenter, 529 U.S. 446, 452-53, 120
S. Ct. 1587, 1592, 146 L. Ed. 2d 518 (2000) (noting the interplay
2
For a claim to be exhausted, “[i]t is not enough that all the facts
necessary to support the federal claim were before the state courts, or that a
somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6,
103 S. Ct. 276, 277, 74 L. Ed.2d 3 (1982) (per curiam)(internal citation
omitted). Nor is it enough to make a general appeal to a broad constitutional
guarantee. Gray v. Netherland, 518 U.S. 152, 163, 116 S. Ct. 2074, 2081, 135 L.
Ed. 2d 457 (1996).
13
between the exhaustion rule and the procedural default doctrine).
If the state court decides a claim on an independent and adequate
state ground, such as a procedural rule prohibiting the state court
from reaching the merits of the constitutional claim, a petitioner
ordinarily
is
barred
from
seeking
federal
habeas
review.
Wainwright v. Sykes, 433 U.S. 72, 81-82, 97 S. Ct. 2497, 2503-04,
52 L. Ed. 2d 594 (1977), reh’g denied, 434 U.S. 880, 98 S. Ct. 241,
54 L. Ed. 2d 163 (Oct. 3, 1977); see Walker v. Martin, ___ U.S.
___, ___, 131 S. Ct. 1120, 1127, 179 L. Ed. 2d 62 (2011) (“A
federal habeas court will not review a claim rejected by a state
court if the decision of the state court rests on a state law
ground that is independent of the federal question and adequate to
support the judgment”); Coleman v. Thompson, 501 U.S. 722, 729-30,
111 S. Ct. 2546, 2554, 115 L. Ed. 2d 640 (1991)(same).3
If a claim
has never been presented to the state courts, but a state court
remedy is no longer available (e.g., when an applicable statute of
limitations bars a claim), the claim is technically exhausted, but
procedurally barred.
Coleman, 501 U.S. at 731-32, 111 S. Ct. at
2555; see also Hicks v. Straub, 377 F.3d 538, 551 (6th Cir. 2004)
3
The state-law ground may be a substantive rule dispositive of the
case, or a procedural barrier to adjudication of the claim on the merits. Walker,
__ U.S. at __, 131 S. Ct. at 1127. A state rule is an “adequate” procedural
ground if it is “firmly established and regularly followed.” Id. (quoting Beard
v. Kindler, 130 S. Ct. 612, 618, 175 L. Ed. 2d 417 (2009)). “A discretionary
state procedural rule . . . can serve as an adequate ground to bar federal habeas
review . . . even if the appropriate exercise of discretion may permit
consideration of a federal claim in some cases but not others.”
Id. at 1128
(quoting Kindler, 130 S. Ct. at 618)(internal citations & quotation marks
omitted).
14
(the procedural default doctrine prevents circumvention of the
exhaustion doctrine), cert. denied, 544 U.S. 928, 125 S. Ct. 1653,
161 L. Ed.2d 490 (2005).4
Under either scenario, a petitioner must show cause to excuse
his failure to present the claim fairly and actual prejudice
stemming from the constitutional violation or, alternatively, that
a
failure
to
review
the
miscarriage of justice.
claim
will
result
in
a
fundamental
Schlup v. Delo, 513 U.S. 298, 320-21, 115
S. Ct. 851, 864, 130 L. Ed. 2d 808 (1995); Coleman, 501 U.S. at
750, 111 S. Ct. at 2565.
The latter showing requires a petitioner
to establish that a constitutional error has probably resulted in
the conviction of a person who is actually innocent of the crime.
Schlup, 513 U.S. at 321, 115 S. Ct. at 864; see also House v. Bell,
547 U.S. 518, 536-539, 126 S. Ct. 2064, 2076-78, 165 L. Ed. 2d 1
(2006) (restating the ways to overcome procedural default and
further explaining the actual innocence exception).
B.
Merits Review
Section 2254(d) establishes the standard for addressing claims
that have been adjudicated in state courts on the merits:
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim –
4
To avoid procedural default, federal law requires a federal habeas
petitioner in Tennessee to present his federal claims to the Tennessee Court of
Criminal Appeals. Covington v. Mills, 110 F. App’x 663, 666 (6th Cir. 2004).
15
(1)
resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2)
resulted in a decision that was based on an
unreasonable determination of the facts in light of
the
evidence
presented
in
the
State
court
proceeding.
28 U.S.C. § 2254(d)(1)-(2).
The petitioner carries the burden of
proof for this “difficult to meet” and “highly deferential [AEDPA]
standard,” which “demands that state-court decisions be given the
benefit of the doubt.”
Cullen, ___ U.S. at ___, 131 S. Ct. at 1398
(quoting Harrington v. Richter, ___ U.S.
, ___, 131 S. Ct. 770,
786, 178 L. Ed. 2d 624 (2011), and Woodford v. Visciotti, 537 U.S.
19, 24, 123 S. Ct. 357, 360, 154 L. Ed. 2d 279 (2002) (per curiam),
reh’g denied, 537 U.S. 1149, 123 S. Ct. 957, 154 L. Ed. 2d 855 (Jan.
13, 2003)).5
Review under § 2254(d)(1) is limited to the record that was
before the state court that adjudicated the claim on the merits.
Cullen, ___ U.S. at ___, 131 S. Ct. at 1399.
decision
is
A state court’s
“contrary” to federal law when it “arrives at a
conclusion opposite to that reached” by the Supreme Court on a
question of law or “decides a case differently than” the Supreme
Court has “on a set of materially indistinguishable facts.”
5
The AEDPA standard creates “a substantially higher threshold” for
obtaining relief than a de novo review of whether the state court’s determination
was incorrect. Schriro v. Landrigan, 550 U.S. 465, 473, 127 S. Ct. 1933, 1940,
167 L. Ed. 2d 836 (2007) (citing Williams v. Taylor, 529 U.S. at 410, 120 S. Ct.
at 1522).
16
Williams v. Taylor, 529 U.S. 362, 412-13, 120 S. Ct. 1495, 1523, 146
L. Ed. 2d 389 (2000).6 An “unreasonable application” of federal law
occurs when the state court “identifies the correct governing legal
principle from” the Supreme Court’s decisions “but unreasonably
applies that principle to the facts of the prisoner’s case.”
at 412-13, 120 S. Ct. at 1523.
Id.
The state court’s application of
clearly established federal law must be “objectively unreasonable.”
Id. at 409, 120 S. Ct. at 1521.
The writ may not issue merely
because the habeas court, in its independent judgment, determines
that the state court decision applied clearly established federal
law erroneously or incorrectly.
Renico v. Lett, 559 U.S. 766, 773,
130 S. Ct. 1855, 1862, 176 L. Ed. 2d 678 (2010) (citing Williams,
529 U.S. at 411, 129 S. Ct. at 1522).
There
2254(d)(2)
is
little
that
a
case
law
decision
determination of facts.”
addressing
was
based
the
on
standard
“an
in
§
unreasonable
However, in Wood v. Allen, 558 U.S. 290,
301, 130 S. Ct. 841, 849, 175 L. Ed. 2d 738 (2010), reh’g denied,
130 S. Ct. 1942, 176 L. Ed. 2d 405 (Mar. 22, 2010), the Supreme
Court
stated
that
a
state-court
factual
determination
is
not
“unreasonable” merely because the federal habeas court would have
6
The “contrary to” standard does not require citation of Supreme Court
cases “so long as neither the reasoning nor the result of the state-court
decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365,
154 L. Ed. 2d 263 (2002) (per curiam), reh’g denied, 537 U.S. 1148, 123 S. Ct.
955, 154 L. Ed. 2d 854 (Jan. 13, 2003); see Mitchell v. Esparza, 540 U.S. 12, 1516, 124 S. Ct. 7, 10, 157 L. Ed. 2d 263 (2003) (same), reh’g denied, 540 U.S. 12,
16, 124 S. Ct. 1124, 157 L. Ed. 2d 956 (Jan. 12, 2004); Treesh v. Bagley, 612
F.3d 424, 429 (6th Cir. 2010) (same), cert. denied, ___ U.S. ___, 131 S. Ct.
1678, 179 L. Ed. 2d 622 (Mar. 21, 2011).
17
reached a different conclusion.7
In Rice v. Collins, 546 U.S. 333,
126 S. Ct. 969, 163 L. Ed. 2d 824 (2006), the Court explained that
“[r]easonable minds reviewing the record might disagree” about the
factual finding in question, “but on habeas review that does not
suffice to supersede the trial court’s . . . determination.”
Rice,
546 U.S. at 341-42, 126 S. Ct. at 976.
The Sixth Circuit has described the § 2254(d)(2) standard as
“demanding but not insatiable” and emphasizes that, pursuant to §
2254(e)(1), the state court factual determination is presumed to be
correct absent clear and convincing evidence to the contrary. Ayers
v. Hudson, 623 F.3d 301, 308 (6th Cir. 2010), reh’g and reh’g en
banc denied (Dec. 28, 2010).
A state court adjudication will not
be overturned on factual grounds unless objectively unreasonable in
light of the evidence presented in the state court proceeding. Id.;
see also Hudson v. Lafler, 421 F. App’x 619, 624 (6th Cir. 2011)
(same).
There is no AEDPA deference and the standards of § 2254(d) do
not apply if a habeas claim is fairly presented in the state courts
but not adjudicated on the merits.
Montes v. Trombley, 599 F.3d
7
In Wood, the Supreme Court granted certiorari to resolve whether, to
satisfy § 2254(d)(2), “a petitioner must establish only that the state-court
factual determination on which the decision was based was “unreasonable,” or
whether § 2254(e)(1) additionally requires a petitioner to rebut a presumption
that the determination was correct with clear and convincing evidence.” Wood,
558 U.S. at 293, 299, 120 S. Ct. at 845, 848. The Court ultimately found it
unnecessary to reach that issue, and left it open “for another day”. Id. at 30001, 303, 120 S. Ct. at 849, 851 (citing Rice v. Collins, 546 U.S. 333, 339, 126
S. Ct. 969, 974, 163 L. Ed. 2d 824 (2006) in which the Court recognized that it
is unsettled whether there are some factual disputes to which § 2254(e)(1) is
inapplicable).
18
490, 494 (6th Cir. 2010), reh’g and reh’g en banc denied (Apr. 20,
2010); see Thompson v. Warden, Belmont Corr. Inst., 598 F.3d 281,
285 (6th Cir. 2010) (a claim that is fairly presented in the state
court but not addressed is subject to de novo review by the habeas
court). The pre-AEDPA de novo review standard applies for questions
of law and mixed questions of law and fact, and the clear error
standard applies to factual findings.
IV.
Montes, 599 F.3d at 494.
ANALYSIS OF PETITIONER’S CLAIMS
A.
Issues Barred by Procedural Default
Issues 1(d), 1(e), 1(g), 1(h), 1(i), 1(j), 1(k), 1(l) & 1(m)
Petitioner did not properly exhaust Issues 1(d), 1(e), 1(g),
1(h), 1(i), 1(j), 1(k), 1(l) & 1(m) because he did not present those
claims to the Tennessee Court of Criminal Appeals in his postconviction appeal.
Baldwin, 541 U.S. at 29, 124 S. Ct. at 1349.
The issues have been exhausted through Morris’ procedural default,
and he has no avenue remaining for presentation of the claims given
the state statute of limitations on state post-conviction relief.
This procedural default operates as a complete and independent
procedural bar to federal habeas review of these issues.
“There is no constitutional right to an attorney in state postconviction proceedings.
constitutionally
proceedings.”
Consequently, a petitioner cannot claim
ineffective
assistance
of
counsel
in
such
Coleman v. Thompson, 501 U.S. at 752, 111 S. Ct. at
2566 (internal citations omitted). Attorney error cannot constitute
19
“cause” for a procedural default “because the attorney is the
petitioner’s agent when acting, or failing to act, in furtherance
of the litigation, and the petitioner must bear the risk of attorney
error.” Id. at 753, 111 S. Ct. at 2566-67 (internal quotation marks
omitted).
Thus, where the State has no constitutional obligation
to ensure that a prisoner is represented by competent counsel, the
petitioner bears the risk of attorney error. Id. at 754, 111 S. Ct.
at 2567.8
Until recently, a habeas petitioner could not obtain relief on
a claim of ineffective assistance of post-conviction counsel.
In
2012, the Supreme Court issued its decision in Martinez v. Ryan, ___
U.S. ___, ___, 132 S. Ct. 1309, 1320, 182 L. Ed. 2d 272 (2012),
which recognized a narrow exception to the rule stated in Coleman
“[w]here, under state law, claims of ineffective assistance of trial
counsel must be raised in an initial-review collateral proceeding
. . . .”
Martinez, ___ U.S. at ___, 132 S. Ct. at 1320.
In such
cases, “a procedural default will not bar a federal habeas court
from hearing a substantial claim of ineffective assistance of
counsel if, in the initial-review collateral proceeding, there was
no counsel or counsel in that proceeding was ineffective.” Id., 132
L. Ed. 2d at 1320.
The Supreme Court also emphasized that “[t]he
rule of Coleman governs in all but the limited circumstances
8
See also 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence
of counsel during Federal or State collateral post-conviction proceedings shall
not be a ground for relief in a proceeding arising under section 2254.”).
20
recognized here. . . . It does not extend to attorney errors in
other proceeding beyond the first occasion the State allows a
prisoner to raise a claim of ineffective assistance at trial, even
though that initial-review collateral proceeding may be deficient
for other reasons.”
Id. at ___, 132 S.
Ct.
at
1320.
The
requirements that must be satisfied to excuse a procedural default
under Martinez are as follows:
(1) the claim of “ineffective assistance of trial
counsel” was a “substantial” claim; (2) the “cause”
consisted
of
there
being
“no
counsel”
or
only
“ineffective” counsel during the state collateral review
proceeding; (3) the state collateral review proceeding
was the “initial” review proceeding in respect to the
“ineffective-assistance-of-trial-counsel claim”; and (4)
state law requires that an “ineffective assistance of
trial counsel [claim] . . . be raised in an
initial-review collateral proceeding.”
Trevino v. Thaler, ___ U.S. ___, ___, 133 S. Ct. 1911, 1918, 185 L.
Ed. 2d 1044 (2013).
Martinez arose under an Arizona law that does not permit
ineffective assistance claims to be raised on direct appeal.
at ___, 132 S. Ct. at 1313.
Id.
In its subsequent decision in Trevino
v. Thaler, ___ U.S. at ___, 133 S. Ct. at 1921, the Supreme Court
extended its holding in Martinez to states in which a “state
procedural framework, by reason of its design and operation, makes
it highly unlikely in a typical case that a defendant will have a
meaningful opportunity to raise a claim of ineffective assistance
of trial counsel on direct appeal . . . .”
Thus, the decision in
Trevino modified the fourth requirement stated by Coleman for
21
overcoming a procedural default. The Sixth Circuit Court of Appeals
has held that the decisions in Martinez and Trevino are applicable
to Tennessee prisoners. Sutton v. Carpenter, ___ F. 3d at ___, 2014
WL 1041695, at *1.
Martinez and Trevino cannot excuse Petitioner’s default of
these claims.
that
The holding of Martinez does not encompass claims
post-conviction
appellate
counsel
was
ineffective.
See
Martinez, ___ U.S. at ___, 132 S. Ct. at 1319 (“Coleman held that
an attorney’s negligence in a postconviction proceeding does not
establish cause, and this remains true except as to initial review
collateral proceedings for claims of ineffective assistance at
trial.”); see also Hodges v. Colson, 727 F.3d 517, 531 (6th Cir.
2013)
(“Under
understanding
Martinez’s
of
Coleman
unambiguous
in
this
holding
regard
is
our
still
previous
the
law
-
ineffective assistance of post-conviction counsel cannot supply
cause for procedural default of a claim of ineffective assistance
of appellate counsel.”). Issues 1(d), 1(e), 1(g), 1(h), 1(i), 1(j),
1(k), 1(l) & 1(m) are barred by Petitioner’s procedural default.
B.
Exhausted Issues
Issue 1(a), Issue 1(b), Issue 1(c) & Issue 1(f)
Ineffective Assistance
Morris contends that his trial counsel rendered ineffective
assistance, in violation of the Sixth Amendment.
A claim that
ineffective assistance of counsel has deprived a defendant of his
22
Sixth Amendment right to counsel is controlled by the standards
stated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), reh’g denied, 467 U.S. 1267, 104 S. Ct.
3562, 82 L. Ed. 2d 864 (June 25, 1984).
any
claim
of
ineffectiveness
is
The benchmark for judging
whether
counsel’s
conduct
so
undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result. Id.
at 686, 104 S. Ct. 2064.
To demonstrate deficient performance by counsel, a petitioner
must demonstrate that “counsel’s representation fell below an
objective standard of reasonableness.”
2064.
Id. at 688, 104 S. Ct. at
“A court considering a claim of ineffective assistance must
apply a ‘strong presumption’ that counsel’s representation was
within the ‘wide range’ of reasonable professional assistance.
[Strickland, 466 U.S.] at 689, 104 S. Ct. 2052.
The challenger’s
burden is to show ‘that counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed the defendant by the
Sixth Amendment.’
Id., at 687, 104 S. Ct. 2052.”
Harrington, ___
U.S. at ___, 131 S. Ct. at 787.
To
demonstrate
reasonable
prejudice,
probability
that,
a
but
prisoner
for
must
counsel’s
establish
“a
unprofessional
errors, the result of the proceeding would have been different.”
23
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.9
“A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.”
Id. at 694; 104 S. Ct. at 2068.
“It is not enough
to show that the errors had some conceivable effect on the outcome
of the proceeding.
Counsel’s errors must be so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.”
Harrington, 131 S. Ct. at 787-88 (internal citations &
quotation marks omitted) (citing Strickland, 466 U.S. at 687, 693,
104 S. Ct. at 2064, 2052); see also Wong v. Belmontes, 558 U.S. 15,
27, 130 S. Ct. 383, 390-91, 175 L. Ed. 2d 328 (2009) (per curiam)
(“But Strickland does not require the State to ‘rule out’” a more
favorable outcome to prevail. “Rather, Strickland places the burden
on the defendant, not the State, to show a ‘reasonable probability’
that the result would have been different”), reh’g denied, 130 S.
Ct. 1122, 175 L. Ed. 2d 931 (Jan. 11, 2010).
“Surmounting Strickland’s high bar is never an easy task.”
Padilla v. Kentucky, 559 U.S. 356, 371, 130 S. Ct. 1473, 1485, 176
L. Ed. 2d 284 (2010).
An ineffective-assistance claim can function as a way to
escape rules of waiver and forfeiture and raise issues
not presented at trial, and so the Strickland standard
must be applied with scrupulous care, lest “intrusive
post-trial inquiry” threaten the integrity of the very
adversary process the right to counsel is meant to serve.
9
“[A] court need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant[.]”
Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. If a reviewing court finds a
lack of prejudice, it need not determine whether, in fact, counsel’s performance
was deficient. Id.
24
Strickland, 466 U.S., at 689-690, 104 S. Ct. 2052. Even
under de novo review, the standard for judging counsel’s
representation is a most deferential one. Unlike a later
reviewing court, the attorney observed the relevant
proceedings, knew of materials outside the record, and
interacted with the client, with opposing counsel, and
with the judge.
It is “all too tempting” to “secondguess counsel’s assistance after conviction or adverse
sentence.” Id., at 689, 104 S. Ct. 2052; see also Bell
v. Cone, 535 U.S. 685, 702, 122 S. Ct. 1843, 152 L. Ed.
2d 914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372,
113 S. Ct. 838, 122 L. Ed. 2d 180 (1993). The question
is whether an attorney’s representation amounted to
incompetence under “prevailing professional norms,” not
whether it deviated from best practices or most common
custom. Strickland, 466 U.S., at 690, 104 S. Ct. 2052.
Harrington, ___ U.S. at ___, 131 S. Ct. at 788.
The
deference
to
be
accorded
a
state-court
decision
is
magnified when reviewing an ineffective assistance claim under 28
U.S.C. § 2254(d):
Establishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is all the
more difficult. The standards created by Strickland and
§ 2254(d) are both “highly deferential,” id., at 689, 104
S. Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n. 7,
117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997), and when the
two apply in tandem, review is “doubly” so, Knowles [v.
Mirzayance], 556 U.S., at ----, 129 S. Ct. at 1420
[(2009)]. The Strickland standard is a general one, so
the range of reasonable applications is substantial. 556
U.S., at ----, 129 S. Ct. at 1420. Federal habeas courts
must
guard
against
the
danger
of
equating
unreasonableness under Strickland with unreasonableness
under § 2254(d). When § 2254(d) applies, the question is
not whether counsel’s actions were reasonable.
The
question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.
Id.
The
Court
of
Criminal
Appeals
summarized
the
presented at the post-conviction hearing as follows:
25
testimony
At the post-conviction court’s hearing on the
petition, Petitioner’s trial counsel, who had practiced
criminal law since 1993, recalled that she met with
Petitioner “numerous times” prior to trial and that she
prepared the trial strategy with his assistance. Counsel
said the State offered a fifteen-year sentence if
Petitioner pled guilty. However, Petitioner refused the
offer and insisted on going to trial.
Petitioner was
upset because the police had never interviewed him
regarding the shooting.
Petitioner believed that the
police investigation was “shoddy.”
Counsel testified
that Sergeant Prewitt was called in order to support the
defense claims that the investigation was inadequate.
Counsel testified that she did not object when the
State asked Officer Bishop during its case-in-chief
whether Petitioner spoke to the officer while he was at
the hospital.
She explained that it was not
objectionable given the defense’s theory of the case. In
particular, trial counsel explained that although “on the
surface” such questioning might be objectionable, “one of
the things that [Petitioner] really wanted to point out
during this trial was self-defense and the fact that Miss
Washington had scratched his eyes out.” Consequently,
while the questions “could have been interpreted” as
commenting on Petitioner’s post-arrest silence, “as far
as the defense theory goes for self-defense, that was
something that [Petitioner] wanted . . . to be known to
the jury.” Trial counsel also recalled that because she
was unable to interview Officer Bishop before the trial,
she did not know what his answer would be and thought
that it could be helpful to the defense.
Trial counsel testified that she questioned Officer
Bishop about whether he interviewed Petitioner at the
hospital shortly after the incident. She said she did so
because she wanted to draw out that Petitioner was
physically incapable of participating in an interview
“because he had been so maimed by Mr. Davis.”
Trial counsel was then asked about why she
questioned Officer Bishop about whether “anyone ever
interview[ed]” Petitioner. She explained that Petitioner
“was very adamant about the fact that he was actually the
victim of a crime and no one ever took a statement from
him.”
Petitioner “wanted that to be known.”
Trial
counsel further testified that she advised the prosecutor
that Petitioner wanted to give a statement but the
26
prosecutor “was not interested.”
She added that
Petitioner “was upset and offended by the fact that the
State of Tennessee had never asked him his side of what
happened.” On cross-examination, trial counsel explained
that eliciting this testimony was part of her trial
strategy, and thus “there were multiple reasons why [she
was] bringing [it] up in trial.”
Trial counsel’s testimony then turned to the
examinations of Sergeant Prewitt. She testified that she
asked Sergeant Prewitt whether he took any statements
from Petitioner because the defense was “trying to point
out during the trial . . . that there was shoddy
investigation. And by asking these types of questions,
[trial counsel] thought that that would help . . .
further that point.” She recalled that she also asked
Sergeant Prewitt whether he “questioned the neighbors” so
that the jury could “get a full feel of exactly what
happened.” In short, as trial counsel testified during
cross-examination, she asked Sergeant Prewitt these
questions as “part of [the defense’s] theory of the
case.” Trial counsel also testified that when the State
asked Sergeant Prewitt on cross-examination if Petitioner
ever came to the police to give a statement she did not
think an objection was appropriate because she had
“already opened the door to [those] types of questions.”
During Petitioner’s testimony at trial, trial
counsel asked Petitioner whether he was “ever offered a
chance to make a statement.” Petitioner responded that
he was not and explained why he thought he was not given
such a chance.
At the post-conviction hearing, trial
counsel testified that she asked these questions because
she was “trying to show that during the police
investigation . . . [the police] weren’t trying to get a
feel for the entire story.”
She explained that
Petitioner “wanted his story to be told because he felt
that he had been victimized himself, and he felt that
that would help his case.”
When Petitioner was cross-examined by the State,
trial counsel did not object to a line of questions
concerning whether Petitioner ever made a statement to
the police.
At the post-conviction hearing, trial
counsel explained that she did not object to the
questioning because of all the testimony she elicited on
direct examination about Petitioner not being able to
make a statement.
Trial counsel recalled that, at
27
Petitioner’s “insistence,” the defense “opened the door
to that line of questioning.”
Consequently, trial
counsel did not “[feel] like that . . . objection would
. . . have been well taken by the Court.”
Trial counsel’s post-conviction testimony then
turned to questions regarding the State’s closing
argument. In particular, trial counsel testified that
she declined to object to certain arguments made by the
State concerning Petitioner’s post-arrest silence because
they were simply a recitation of “testimony that was
actually brought out during the trial.” At other points,
trial counsel declined to object because she considered
the argument to be the State’s “theory of the case,”
which it is allowed to present at closing.
At still
other points, such as when the State explained that
Petitioner waived his right to remain silent when he took
the stand to testify, trial counsel stated that she did
not object because the State began by noting that
Petitioner did not “have to prove anything.”
She
testified, however, that the State’s argument concerning
Petitioner’s silence while he was in the hospital “got
past” her and that she should have objected because the
evidence at trial was that Petitioner was physically
unable to make a statement at that point. Trial counsel
further testified that she did not consider the State to
ever be equating Petitioner’s silence with guilt.
Rather, she interpreted the State’s argument to merely be
“responding to [Petitioner’s] testimony that he’d never
been given an opportunity to make a statement.” Trial
counsel testified that she was familiar with the law
concerning a criminal defendant’s right to remain silent,
however, she explained, “that was something that
[Petitioner] was waiving because he wanted to . . . make
statements and he wanted to bring it out during the trial
that he . . . had never been given an opportunity to make
a statement.”
Trial counsel recalled that she did not object to
the portions of the State’s closing argument concerning
prosecutorial ethics and the prosecutor’s oath “to seek
truth and justice” because she believed the State “was
referring to some direct testimony given by [Petitioner]
. . . that [the prosecutor’s] job was to seek
convictions.” At other points, trial counsel declined to
object because she was unable to make sense of the
State’s argument.
But she recalled objecting to the
State’s argument comparing the prosecutor’s obligation to
28
“seek truth and justice” and a defense attorney’s
obligation to “zealously represent her client.”
On
cross-examination during the post-conviction hearing,
trial counsel testified that she objected to the State’s
closing at certain points “because of the way [she] felt
that [the State] was characterizing the job of defense
attorneys.” She recalled that the trial court ruled that
the State should address the ethical obligations of
defense attorneys later in the closing, but the State did
not do so. Trial counsel therefore objected again at the
conclusion of the State’s argument. The trial court said
it would give a curative instruction.
Trial counsel testified that she used a novel style
in her closing argument. She said she learned of this
style during a Tennessee Association of Criminal Defense
Lawyers seminar and had used it successfully at prior
trials. Trial counsel said that during her closing she
assumed the role of Ms. Washington’s purported “alter
ego,” Reecy, to highlight the inconsistencies in the
State’s case.
Trial counsel believed it was an
appropriate technique “because of the importance that
[Petitioner] gave to the fact that Ms. Washington had
this alter ego and the way that this dichotomy of
personality caused her to shift from one person to
another.”
She testified that she objected at certain
points when the State argued on rebuttal that her closing
was “degrading” and “insulting,” but that she did not
object to all such comments because the State’s “comments
were aimed at [her] rather than [Petitioner].”
Trial
counsel testified that she did not “feel [the State’s
rebuttal] was a personal attack on [her],” but rather
indicated that the State “wasn’t familiar with the type
of closing that [she] was doing.”
Regarding the weapon, trial counsel testified that
the gun used to shoot Mr. Davis “was not lost or stolen.”
She recalled that she attempted to determine to whom the
gun was registered, but she was unsuccessful.
Regardless, the ownership of the gun was not an issue
“because it wouldn’t have mattered who the gun belonged
to” because “[t]he testimony was going to be that
[Petitioner] used it to shoot Mr. Davis and shoot at Ms.
Washington.” Likewise, trial counsel did not have the
gun tested for fingerprints “[b]ecause everybody’s hands
had been on [it].”
29
Petitioner
declined
post-conviction hearing.
to
testify
at
the
Morris v. State, 2010 WL 3970371 at *7-*9.
The Court of Criminal Appeals identified the proper standard
for the analysis of Petitioner’s claims, stating:
When a petitioner seeks post-conviction relief on
the basis of ineffective assistance of counsel, “the
petitioner bears the burden of proving both that
counsel’s performance was deficient and that the
deficiency prejudiced the defense.” Goad v. State, 938
S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984)). The petitioner must counter the strong
presumption counsel’s conduct fell within the range of
reasonable professional assistance with which we must
begin. See Strickland, 466 U.S. at 690. To establish
deficient performance, the petitioner must show that
counsel’s performance was below “the range of competence
demanded of attorneys in criminal cases.”
Baxter v.
Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
To establish
prejudice, the petitioner 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.” Strickland, 466 U.S. at 694. Moreover,
[b]ecause [the] petitioner must establish both
prongs of the test, a failure to prove either
deficiency or prejudice provides a sufficient basis
to deny relief on the ineffective assistance claim.
Indeed, a court need not address the components in
any particular order or even address both if the
[petitioner] makes an insufficient showing of one
component.
Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at
697).
Morris v. State, 2010 WL 3970371 at *10.
30
Issue 1(a) and Issue 1(b)
Counsel’s Failure to Object to the State’s Questions
about Petitioner’s Post-Arrest Silence During the Trial
and Closing Argument
Morris alleges that counsel should have objected when the
prosecutor questioned the witnesses and cross-examined Petitioner
about Petitioner’s post-arrest silence.
(Am. Pet., ECF No. 3 at
Page ID # 29-30.) Petitioner also contends that counsel should have
objected when “[t]he Prosecutor spent a substantial portion of his
closing argument essentially telling the jury that Petitioner’s
post-arrest silence [was] symbolic of his guilt.”
# 30.)
Appeals’
(Id. at Page ID
The State responds that the Tennessee Court of Criminal
decision
application
of,
was
not
clearly
determination of the facts.
contrary
to,
or
an
unreasonable
established
law
or
an
unreasonable
(Answer, ECF No. 10 at Page ID # 97.)
The Tennessee Court of Criminal Appeals denied relief, stating:
As explained above, Petitioner asserted that he was
the actual victim.
He claimed that Ms. Washington
invited him to her house and that upon his arrival he was
attacked by Ms. Washington and Mr. Davis.
Petitioner chose not to tell anyone in law
enforcement his version of the events until he took the
stand. There is no dispute that he did not wait for the
police at the scene, nor did he go directly to the police
afterward. In fact, he did not see the police until he
was in the hospital where, both sides agree, he was
unable to communicate. He was placed under arrest at the
hospital, but he was not questioned and, according to the
record, was not informed of his Miranda rights. He then
withheld his version of the events until trial.
The
police never came to him for an interview, and he did not
go to the police requesting one. These facts are largely
undisputed.
31
As explained above, the defense’s theory was that
Petitioner was the victim and that the police conducted
a sloppy, one-sided investigation. In laying out that
theory, trial counsel repeatedly asked the police whether
they interviewed Petitioner in order to elicit that they
had never talked with him. Trial counsel called Sergeant
Prewitt as a defense witness to make that point.
Furthermore, Petitioner himself testified to the same
effect.
Responding to Petitioner’s theory, the State asked
both Petitioner and Sergeant Prewitt whether Petitioner
ever volunteered a statement. It did so to elicit the
fact that Petitioner never told anyone in law enforcement
that he believed he was the victim of a crime, and was
thus wrongfully accused, until the day he took the
witness stand at trial. At closing, the State repeatedly
argued that Petitioner’s silence between his arrest and
trial indicated that his story was not credible. Indeed,
it asserted that Petitioner remained silent specifically
so that the State could not investigate his story because
he knew it was false. Trial counsel did not object as
the State elicited this testimony and made these closing
arguments.
Petitioner claims trial counsel’s decision to not
object to either the State's questioning or its closing
rendered her ineffective because he had a constitutional
right to remain silent and to not have that silence held
against him.
In particular, Petitioner contends that
counsel should have objected during the following
cross-examination exchange between the State and Sergeant
Prewitt, whom the defense called as a witness as a part
of its case:
Q.
You’ve already told [trial counsel] that you could not
get a statement from [Petitioner]; is that correct:
A.
Correct.
Q.
Once a defendant is charged with a crime and has a lawyer
can you go talk to him?
A.
Not unless he wants to talk to us.
Q.
Has [Petitioner] ever called you and told you he wanted
to talk to you?
32
A.
No.
Q.
Has [Petitioner] ever called you or anybody in your
office and told you that he wanted to give you his
version of what happened?
A.
No.
Petitioner also points to a number of the State’s
questions to him during cross-examination as being
impermissible for impeachment. For example, Petitioner
complains that trial counsel should have objected during
this exchange:
Q.
[Petitioner], how many time have you been in this court?
A.
You know, several times.
Q.
How many?
A.
Approximately five, maybe six.
Q.
Now you told the jury that you never told anybody in law
enforcement that somebody tried to kill you; is that
correct?
A.
I said I never told those officers somebody tried to kill
me.
Q.
You never picked up a phone after you were well to call
any police officers to say, look, I need to tell you what
happened on May 18, 2002, these folks attacked me. You
never did that, did you?
A.
No.
Reason being, I was already charged for - I
automatically assumed they done charged me.
I
automatically assumed that this is going to have to come
out in court. And, you know, you automatically assumed
that if they’d come interviewed and you already charged
with a crime, you know, you just assume that, hey, the
police is going to believe their side and not yours.
It’s just a common assumption.
Similarly, Petitioner contends counsel should have
objected to several statements the State made during its
closing argument.
While there are many specific
statements
about
which
Petitioner
complains,
the
following illustrates the nature of the complaint:
33
And I emphasize it and I put it in bold writing,
that he never in told anybody that ridiculous tale
until he told you yesterday, eighteen months after
this shooting took place.
I asked [Petitioner]
yesterday . . . how many times have you been in this
courtroom? How many times you have told anybody in
law enforcement this ridiculous theory about how
you’re trying to protect yourself from Teresa
Washington and James Davis. How many times? Zero.
How many times have you told me . . . that you need
to look into this because this ain’t right, these
folks are trying to railroad me.
I’m defending
myself. . . .
If at any point in the past six hundred and
twenty-two days or whatever it’s been now that he
has been in custody, charged with trying to kill two
people, if he thought any of that was true, he could
have had that investigated by some law enforcement
agency if he wanted to.
He did not want it
investigated because he knew it was not the truth.
He knew it was not justice. For the same reasons he
fled . . . are the same reason why he withheld this
information from law enforcement because he knows it
is not the truth. So he comes to court and he takes
one shot, roll of the dice, let me, let me throw it
out there one time, drop it on the jury. And let me
see if I can get at least one juror to say, well,
maybe he’s telling the truth.
And that’s why he
waited until January 28th, 2004, to tell somebody
about this ridiculous self-defense argument.
We agree with the post-conviction court that trial
counsel’s decision to not object did not render her
assistance ineffective.
Petitioner is correct that he had the right to
remain silent. U.S. Const. amend. V; Miranda v. Arizona,
384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
However, “[o]nce a defendant decides to testify,” he
“cast[s] aside his cloak of silence,” and the Fifth
Amendment allows him to be subjected to at least some
degree of impeachment based on his prior silence.
Jenkins v. Anderson, 447 U.S. 231, 238, 100 S. Ct. 2124,
65 L. Ed. 2d 86 (1980).
Thus, the Fifth Amendment
permits a defendant to be impeached “by use of prearrest
silence.” Id. at 240. Generally, a defendant may not be
34
impeached based on his silence after he was given a
Miranda warning.
See Doyle v. Ohio, 426 U.S. 610,
619–20, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). Doyle
reasoned that when a defendant receives a Miranda
warning, the government induces, or at least arguably
induces, subsequent silence.
See id. at 617–19.
Inducement is not present when the government has
arrested an individual but not yet informed him of his
Miranda rights.
See Fletcher v. Weir, 455 U.S. 603,
605–07, 102 S. Ct. 1309, 71 L. Ed. 2d 490 (1982) (per
curiam). Consequently, it does not violate due process
to allow the State to impeach a defendant with evidence
of post-arrest, but pre-Miranda warning, silence. Id. at
606–07.
These United States Supreme Court decisions provide
the outer boundary of permissible impeachment allowed by
the Fifth Amendment.
As Jenkins notes, “[e]ach
jurisdiction may formulate its own rules of evidence to
determine when prior silence is so inconsistent with
present statements that impeachment by reference to such
silence is probative.” 447 U.S. at 239.
Prior to Doyle, Jenkins, and Weir, our supreme court
addressed the issue of impeaching a defendant with his
prior silence in Braden v. State, 534 S.W.2d 657 (Tenn.
1976). In Braden, the court explained that in order to
“strike
a
balance
between
protecting
the
self-incrimination bar of the Fifth Amendment and
allowing full testing of the truth of defendant’s trial
testimony . . . evidence of pretrial silence of the
defendant must be admitted with caution and then only
where such silence is patently inconsistent with
defendant’s testimony.”
Id. at 660.
Thus, evidence
elicited for “the impeaching effect of any prior
inconsistent actions” by the defendant, including prior
silence, could be elicited in certain circumstances. Id.
The Braden rule was obviously limited by the Doyle
line of cases. But as this court explained in State v.
Chris
Haire,
“Braden’s
‘patently
inconsistent’
qualification is still viable in the factual context [of
post-arrest,
pre-Miranda
warning
silence].”
No.
E2000–01636–CCA–R3–CD, 2002 WL 83604, at *15 (Tenn. Crim.
App. at Knoxville, Jan. 22, 2002). “The result is that
Tennessee restricts impeachment use of a defendant’s
post-arrest silence that precedes Miranda warnings to
those situations wherein it is patently or blatantly
35
inconsistent with trial testimony.” Id.; see also State
v. Jonathan D. Rosenbalm, No. E2002–00324–CCAR3–CD, 2002
WL 31746708, at *5–6 (Tenn. Crim. App. at Knoxville, Dec.
9, 2002).
Although there is a paucity of Tennessee cases
demonstrating the types of situations in which the State
can use a defendant’s silence for impeachment, several
cases
from
other
jurisdictions
provide
useful
illustrations. In State v. Cockrell, for instance, the
Wisconsin Court of Appeals dealt with a defendant who was
convicted of shooting someone in a car that had pulled up
next to him at a McDonald’s drive-through. 306 Wis.2d
52, 741 N.W.2d 267, 269 (Wis. Ct. App. 2007).
When
Cockrell turned himself in to the police, he told them
about his history with the victim.
Id.
However, he
refused to speak to the officers about the incident
itself until he had counsel.
Id.
He remained silent
until trial, when he testified that he acted in
self-defense, claiming that the victim pointed a gun at
him first. See id. at 269–70. Cockrell also testified
that he refused to tell the police about the incident
without counsel “because things can be misinterpreted or
written
down
incorrectly.”
Id.
at
270.
On
cross-examination, the state attempted to impeach
Cockrell’s testimony by questioning him about his
previous silence. Id. On appeal, Cockrell challenged
the state’s questions as a violation of his right to
remain silent. Id. The court explained that there are
several situations in which the state’s use of a
defendant’s post-Miranda silence for impeachment is not
a violation of due process.
See id. at 270–72.
For
instance, the state may do so “where the defendant’s
testimony conveys that he or she cooperated with the
police,” “where the defendant volunteered on direct his
reason for not telling the police his version of the
crime,” and “where the defendant testified that he
attempted to tell the officers what happened but they
would not let him speak.”
Id. at 271–72.
The court
concluded that the state’s use of Cockrell’s post-Miranda
silence was not “fundamentally unfair” because he
“initiated the topic of why he chose to remain silent
[and] his explanation put him in a better position than
had he not mentioned the reason.” Id. at 275. Moreover,
the state’s use of Cockrell’s silence was limited to
impeaching his explanation, the state did not equate that
silence to guilt. See id. at 275–76.
36
The court’s reasoning in Cockrell is similar to that
in United States ex rel. Saulsbury v. Greer, 702 F.2d 651
(7th Cir. 1983). There, the court explained that
Once [a] reason [for the defendant’s prior silence]
was solicited upon direct examination it was not
fundamentally unfair for the prosecution, upon
cross-examination, to attack the credibility of that
explanation
by
eliciting
testimony
that
the
defendant had failed to come forward with his
exculpatory explanation long after the Miranda
warnings and after circumstances had made the need
for such an explanation, if it existed, far more
compelling.
Id. at 655–56. Because the defendant had “ventured” so
far as to give an explanation for his silence, he “could
not erect a constitutional barrier against the state
exploring the soundness of that explanation by measuring
it against the defendant’s subsequent failure to assert
it” earlier. Id. at 656.
In State v. Alo, the court likewise found that the
state could impeach a defendant’s exculpatory version of
the facts by reference to his prior silence.
57 Haw.
418, 558 P.2d 1012 (Haw. 1976). There, Alo was charged
with attempted murder after his girlfriend claimed that
he beat her, drove her to a secluded area, shot her, and
left.
Id. at 1013–14.
The victim survived and
immediately reported the crime. Id. at 1014. The police
quickly found Alo walking toward his apartment.
Id.
While he declined to give a statement at the police
station, at trial Alo claimed that he told the officer
that stopped him that he had been on a walk when the
incident
occurred.
Id.
at
1014–15.
On
cross-examination, the state elicited testimony that Alo
had not told the police his version of the events when he
was at the station. Id. at 1015. On appeal, the court
explained that “the prosecution was not bound to accept
as true the defendant’s testimony on direct examination”
and it “had the right to determine whether and exactly to
whom the defendant was supposed to have given his
exculpatory version.”
Id.
Such questions “were a
natural and logical sequel to the defendant’s testimony,”
and therefore were “not calculated to penalize the
defendant for his silence.” Id. at 1016.
37
As these cases make clear, the law does not exclude
evidence of a defendant’s silence “so that the defendant
may freely and falsely create the impression that he has
cooperated with the police when, in fact, he has not.”
United States v. Fairchild, 505 F.2d 1378, 1383 (5th Cir.
1975). Even if exclusion of such evidence is ordinarily
required by due process, once the defendant broaches the
subject of his cooperation or explains his silence, “the
bar [is] lowered and he discard[s] the shield which the
law had created to protect him.” Id.
In the present case, the post-conviction court
concluded that counsel’s decision to refrain from
objecting was not deficient because the questions did not
intrude on Petitioner’s Fifth Amendment rights. In other
words, an objection to the State’s questions about
Petitioner’s
post-arrest
silence
would
have
been
overruled.
The court concluded that Petitioner’s
decision to remain silent and not tell law enforcement
his version of the events was not deficient because
Petitioner’s
silence
“was
patently
or
blatantly
inconsistent with his trial testimony,” and thus proper
fodder for impeachment.
It also explained that the
questions were valid because Petitioner opened the door
to the State’s line of attack. Indeed, it credited trial
counsel’s testimony that Petitioner waived his Fifth
Amendment right to silence, and the concomitant right to
not have his silence held against him, by virtue of
asserting
his
self-defense-and-shoddy-investigation
theory of the case.
We agree with the post-conviction court. We begin by
noting that Petitioner does not contend that the defense
strategy of arguing that Petitioner was the actual victim
and that law enforcement conducted a shoddy investigation
was somehow deficient.
Nor does he challenge the
decision to call Sergeant Prewitt as a defense witness
for the purpose of eliciting that the police had not
interviewed anyone other than the victims.
These
critical
points
lead
us
to
conclude
that
the
post-conviction court did not err in crediting trial
counsel’s testimony that Petitioner waived his Fifth
Amendment rights because “he wanted to bring it out
during the trial that he wasn’t being given an
opportunity or had never been given an opportunity to
make a statement.”
38
Petitioner’s position thus appears to be that he is
allowed to testify and present evidence that, despite his
desire to tell his side of the story, the police never
gave him an opportunity to make a statement; yet the
State is not allowed to point out Petitioner’s
inconsistent behavior and the fact that he never made any
effort to relay his version of the events. This position
goes too far. Petitioner tried to create the impression
that he wanted to cooperate but was thwarted by myopic
investigators. As the court in Cockrell wrote, once a
defendant explains his silence, “his explanation put[s]
him in a better position than had he not mentioned the
reason; it [is] not fundamentally unfair for the State on
cross-examination to attack the credibility of that
explanation by eliciting the testimony that, even after
there was a compelling need for him to come forward with
his self-defense version of the fight, he did not.” 741
N.W.2d at 275 (citing Saulsbury, 702 F.2d at 655–56). In
our view, Petitioner opened the door to impeachment based
upon his theory of the case.
Moreover, the record makes clear that Petitioner’s
counsel brought up Petitioner’s silence before the State
ever asked any of the questions about which he now
complains. Specifically, during the direct examination
of Sergeant Prewitt, who was called as a defense witness
to show that the police neglected to take statements from
anyone other than the victims, trial counsel asked:
Q.
Did you take any other statements in this case?
A.
No. . . . And [Petitioner] couldn’t [make a statement]
either.
Q.
He was unable to do it?
A.
Yes.
Q.
[Petitioner] was unable to make a statement to you?
A.
Yes.
Q.
At the hospital.
Okay.
At any other time did you
attempt after [Petitioner’s] release [from the hospital],
did you attempt to take a statement from him?
A.
No.
39
Q.
And so during the conduct of your investigation you never
got [Petitioner’s] side of what happened on [May 18,
2002] at 680 Glankler?
A.
No.
Q.
Okay.
A.
No.
Ever?
That line of questioning opened the door for the State’s
cross-examination about whether Petitioner ever made an
affirmative effort to speak to law enforcement.
The same is true with respect to the State’s
questions during Petitioner’s cross-examination.
On
direct examination, trial counsel opened the door by
asking Petitioner:
Q.
Were you ever offered a chance to make a statement to the
police?
A.
No, Ma’am.
Q.
Okay. And why were you not given - why in your opinion
do you think you were not given a chance to make a
statement to police?
A.
Well, I always thought that if, that according to my
experiences since I’ve been down here, which has almost
been two years, that it’s a standard operating procedure
for the police to come down and interrogate a suspect
once they get downtown. I’ve been down here for going on
two years and no officer made no attempt to come down and
interrogate me for nothing or get my opinion on nothing.
My first time being locked up for an offense like this
period.
This statement invited the State’s cross-examination
questions regarding whether Petitioner affirmatively
sought to make a statement. Counsel’s failure to object
was not deficient because the defense opened the door to
such questions.
Finally, the defense’s strategy made any Fifth
Amendment
objection
to
the
State’s
comments
on
Petitioner’s pre-trial silence meritless.
As trial
counsel
explained,
to
assert
Petitioner’s
40
self-defense-and-shoddy-investigation theory, Petitioner
waived his Fifth Amendment right to remain silent and to
not have that silence held against him.
The State’s
closing response to Petitioner’s theory therefore did not
violate Petitioner’s Fifth Amendment rights, and any
objection to that effect would not have been sustained.
Petitioner asserts that, even if he did invite the
State’s use of his post-arrest silence, the State went
far beyond using that silence for impeachment purposes
and instead used it to equate his silence with guilt.
Petitioner cites this court’s decision in State v. Eric
Flemming, No. 01C01–9709–CR–00418, 1999 WL 20800 (Tenn.
Crim. App. at Nashville, Jan. 20, 1999), as support for
his position. Flemming involved an aggravated robbery.
Upon arrest, Mr. Flemming claimed that he knew nothing of
the crime except that he had heard the name of the
perpetrator. Id. at *5. Mr. Flemming stopped talking to
the police “when it became clear that they did not
believe him.”
Id.
At trial, the State used Mr.
Flemming’s silence to argue that he refused to speak in
order to make sure he did not tell a story that police
could prove was false. See id. at 11. This, we said,
“was an obvious violation of [Mr. Flemming’s] Fifth
Amendment right to silence.” Id.
Although the State made similar “silence equates to
guilt” comments during its closing in the present case,
this case contains a subtle, but critical, difference.
Whereas Mr. Flemming asserted that he knew nothing about
the crime other than the name he had heard, Petitioner
does not dispute that he shot Mr. Davis.
Petitioner
claims he was defending himself as Ms. Washington and Mr.
Davis attempted to murder him. The context of the two
cases is important. If Mr. Flemming’s credibility was
impeached, it merely meant his statement that he did not
know
anything
about
the
crime
other
than
the
perpetrator’s name cannot be believed. However, he could
still assert that he did not actually commit the crime.
The implications for impeaching Petitioner’s testimony
about his version of events are much different. As we
have noted, Petitioner admitted that he shot Mr. Davis.
The only question was why. Petitioner testified that he
acted in self-defense. But if the State impeached the
credibility of Petitioner’s claim that he was attacked,
then the self-defense theory collapses. In Flemming, the
jumps from (1) silence to (2) discrediting Mr. Flemming’s
statement that he knew nothing about the crime to (3)
41
guilt are too big. But in Petitioner’s case, it is only
logical that if his statement that he was attacked cannot
be believed, then there is no legal justification for
shooting Mr. Davis.
Petitioner’s ineffective assistance of counsel
claims concerning his Fifth Amendment right to silence
fail.
Morris v. State, 2010 WL 3970371 at *10-*17.
The Tennessee Court of Criminal Appeals cited and applied the
Supreme Court’s decision in Strickland.
Id. at *10.
Based on this
Court’s review of the transcript of Petitioner’s trial, (Tr. of
Trial, Addendum I, Volumes 3-6, ECF Nos. 11-3-11-6, Page ID # 315844), and counsel’s testimony at the post-conviction hearing (Tr.
of Post-Conviction Hearing (“H’rg.”), Addendum 3, Volumes 2-3, ECF
Nos. 12-5-12-6, Page ID # 1317-1415), the decision of the Tennessee
Court of Criminal Appeals did not “result[] in a decision that was
based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”
28 U.S.C. §
2254(d)(2).
Counsel presented the defense that Morris requested.
Morris
does not allege otherwise. Morris wanted the opportunity to portray
himself as the victim and to explain why he chose to remain silent.
The chosen defense opened the door to the questions during crossexamination that Petitioner now contends were objectionable.
The
State was permitted to point out Petitioner’s inconsistent behavior.
Counsel did not perform deficiently by failing to make baseless
objections.
This claim is without merit and is DENIED.
42
Issue 1(c)
Counsel’s Failure to Object to Other Instances
Prosecutorial Misconduct During Closing Argument
of
Morris alleges that trial counsel was ineffective for failing
to object when the prosecutor expressed personal opinions as to
Petitioner’s guilt, made statements calculated to inflame the jury,
made personal attacks against defense counsel, and made statements
that shifted the burden of proof from the State to Defendant.
Pet. ECF No. 3 at Page ID # 30.)
(Am.
The State responds that Petitioner
has failed show that the Tennessee courts’ rejection of this issue
was contrary to any United States Supreme Court precedent or was
based on an unreasonable determination of the facts based on the
evidence presented.
(Answer, ECF No. 10 at Page ID # 106.)
The Tennessee Court of Criminal Appeals denied relief on this
issue, stating:
Petitioner next contends that trial counsel was
ineffective for failing to object to several episodes of
alleged prosecutorial misconduct during the State’s
closing arguments. He relies upon this court’s decision
in State v. Goltz, in which we outlined “five general
areas of prosecutorial misconduct” that can occur during
closing argument: (1) intentionally misleading or
misstating the evidence; (2) expressing a personal belief
or opinion as to the truth or falsity of the evidence or
defendant’s guilt; (3) making statements calculated to
inflame the passions or prejudices of the jury; (4)
injecting broader issues than the guilt or innocence of
the accused; and (5) intentionally referring to or
arguing facts outside the record that are not matters of
common public knowledge. 111 S.W.3d 1, 6 (Tenn. Crim.
App. 2003).
In addition, he notes that “[t]he
prosecution is not permitted to reflect unfavorably upon
defense counsel or the trial tactics employed during the
course of the trial.” State v. Gann, 251 S.W.3d 446, 460
43
(Tenn. Crim. App. 2007). Petitioner contends that the
State violated several of these principles at various
times during its closing argument.
Petitioner first contends the State crossed the line
by reminding the jury that it “took an oath that if the
State of Tennessee presented proof . . . beyond a
reasonable doubt that the defendant attempted to kill
[the victims] . . . [the jury] would . . . find the
defendant guilty,” and then later asserting a guilty
verdict “is the verdict that truth dictates and that
justice demands and any other verdict would be a
violation of the oath that [the jurors] took to return a
true verdict.” Petitioner claims the State’s argument
expressed a personal belief or opinion as to the truth or
falsity of the evidence of Petitioner’s guilt, made
statements calculated to inflame the passions or
prejudices of the jury, and intentionally referred to or
argued facts outside the record that are not matters of
common public knowledge, all in violation of Goltz, and
thus counsel should have objected. See 111 S.W.3d at 6.
We disagree. Nothing in the passage quoted above
expresses the prosecutor’s “personal belief or opinion.”
Goltz, 111 S.W.3d at 6 (emphasis added). We read these
statements as counsel’s articulation of the State’s
position. Nor do we read the statement as one designed
to inflame the passions or prejudices of the jury or
injecting broader issues into the trial.
It simply
reminded the jury of its oath and asserted the State’s
position
that
it
had
met
its
burden,
thereby
necessitating, in the State’s view, a guilty verdict.
Six other passages to which Petitioner points are
more disturbing. Those passages are as follows:
How many times have you told me, [Petitioner],
that you need to look into this because this ain’t
right, these folks are trying to railroad me. I’m
defending myself. . . . [Petitioner] went, well
that’s not [the prosecutor’s] job. You’re trying to
convict me.
I don’t take an oath to convict
anybody.
I don’t take an oath to convict
[Petitioner] or any defendant ever of any crime.
The oath that I took before I became a prosecutor
was to seek truth and justice. Truth and justice.
It would be unethical for me as a prosecutor to
present facts to you that I don’t believe are
44
factually based, there’s a factual basis for that.
It would be unethical for me to continue to
prosecute a case in which I don’t believe there’s
some good-faith basis.
. . .
This defendant is guilty. [Trial counsel] has
a job to zealously represent her client. That’s the
oath she takes as a defense lawyer. To zealously
represent her client.
I don’t take an oath to
zealously represent the people of the State of
Tennessee.
I don’t take an oath to zealously
represent the people of Shelby County, Tennessee.
I take an oath to seek truth and justice.
. . .
I don’t represent the government. I represent
the people of the State of Tennessee. I represent
the State of Tennessee, not the government.
I
represent specifically people here in Shelby County,
Tennessee.
So when people stand up and start
telling you that [the prosecutor] represents the
government, I don’t know what government that is.
I represent you, your neighbor, your loved ones,
people in this community, that’s who I represent.
. . .
If the truth is [Petitioner] is not guilty
based on the proof that I’ve submitted to you, that
the State of Tennessee has presented in court, it is
my oath, my duty, my obligations to stand before you
and say, ladies and gentlemen of the jury, I haven’t
proven this case.
I can’t ask you to find
[Petitioner] guilty. That would be wrong. It’s a
violation of my ethical duties in order for me to
stand here and tell you to find this man guilty if
there is no facts to prove him guilty.
. . .
[Petitioner] is still in jail six hundred and
twenty-two plus days because that’s where he
deserves to be. He is still in jail and not running
free on bond because he is a danger to this
community.
He is in jail for six hundred and
45
twenty-two some-odd days because he is a threat to
kill somebody.
Judge Bennett was not fooled by
anybody when Judge Bennett made the decision to
revoke this defendant’s bond and to keep him in
jail. And for some lawyer to stand up here and tell
you that this judge has been fooled is absolutely,
absolutely an insult.
And you should all be
offended by those statements from [trial counsel].
[Petitioner] is in jail for six hundred and
twenty-two days because he deserves to be in jail,
not for six hundred and twenty-two days but for a
lot longer than six hundred and twenty-two days.
. . .
It is true that prosecutors have an obligation to
seek truth and justice. See State v. David Lynn Jordan,
325 S.W.3d 1, 64 (Tenn. Sept. 22, 2010) (quoting Berger
v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L.
Ed. 1314 (1935)). But the prosecutor’s statements quoted
above combine to form a troubling theme: that the
prosecutor, who represents the jurors, their families,
and their friends, and who is ethically obligated to seek
only “truth and justice” and withdraw the case if the
evidence is insufficient, believes Petitioner is guilty;
Petitioner’s defense attorney, on the other hand, who is
only obliged to “zealous[ly] represent her client” and is
not obliged to seek truth and justice, has insulted the
jury; and the trial judge, whom the jury should see as
neutral arbiter of the law, agrees that Petitioner is
guilty.
That is the underlying message of these
statements.
Petitioner asserts that trial counsel should have
objected to these statements as violations of the
principles articulated in Goltz and Gann.
The record
reflects that trial counsel did object to portions of the
State’s closing. In particular, the defense argued that
the State improperly implied that the defense attorneys
were not obliged to seek truth and justice but were
instead permitted to present a version they knew to be
false. The objection was noted, but overruled. However,
when counsel was asked why she did not object to each
individual statement, counsel said that she did not
believe the objections were necessary or would be
well-taken or that she was contemplating which objection
to raise. The post-conviction court concluded that the
46
statements were not improper because the prosecution was
responding to Petitioner’s assertion from the witness
stand that he did not tell the prosecutor his version of
the story because the prosecutor was only interested in
convicting him and because, in the context of this
“hard-fought” case, the statements were not out of line.
While we agree that the prosecutor’s statements are
dangerously close to the lines staked out by Goltz and
Gann, we do not believe counsel’s conduct amounts to
ineffective assistance warranting relief.
Regardless,
Petitioner has not established prejudice. As a result,
it is unnecessary to determine whether the fact that
counsel made only a few objections to the State’s closing
satisfies the deficiency prong of the Strickland
analysis.
Our supreme court has recently reminded the bar
“that closing arguments must be (1) temperate; (2)
predicated on the evidence adduced at trial; and (3)
pertinent to the issues.” Jordan, 325 S.W.3d at 64. The
court added that “because a prosecutor’s role is to seek
justice rather than simply advocate, the State’s
prerogative during argument is more limited than that of
other parties.” Id. Yet, because “[c]losing arguments
are an important tool for both parties during the trial
process . . . attorneys are usually given wide latitude
in the scope of their arguments” and “[t]rial courts are
accorded wide discretion in their control of those
arguments.” State v. Berry, 141 S.W.3d 549, 586 (Tenn.
2004).
Given the trial court’s tepid reaction to the
defense’s objections at closing, we think it unlikely the
trial court would have sustained additional objections.
Consequently, Petitioner would have to clearly establish
that the statements “affected the verdict to [his]
prejudice.”
Id. (quotation marks omitted); see also
Goltz, 111 S.W.3d at 5; State v. Middlebrooks, 995 S.W.2d
550, 560 (Tenn. 1999).
We consider five factors in
prosecutorial
misconduct
during
reversing the verdict:
evaluating whether
closing
justifies
1) the conduct complained of, viewed in light of the
facts and circumstances of the case; 2) the curative
measures
undertaken
by
the
court
and
the
prosecution; 3) the intent of the prosecutor in
making the improper arguments; 4) the cumulative
47
effect of the improper conduct and any other errors
in the record; and 5) the relative strength and
weakness of the case.
Berry, 141 S.W.3d at 586; see also Jordan, 325 S.W.3d at
65.
We conclude that these factors would not have
weighed in favor of reversing Petitioner’s conviction.
We agree with the post-conviction court that the record
indicates that the State’s comments came in the midst of
a “hard-fought” case. Moreover, the comments were partly
in response to Petitioner’s testimony that he did not
tell the prosecutor his version of the story because the
prosecutor’s job was to convict him.10 The first factor
is thus neutral. Factors (2) and (3) weigh in favor of
the Petitioner because the trial court took no curative
measures specifically tailored to counter the statements
and the prosecutor’s motive for making them appears to
have been to combat defense counsel’s theory of the case
by boosting the jury’s faith in the prosecutor’s version
of events.11 But even though these factors weigh somewhat
in Petitioner’s favor, they are outweighed by the
remaining two. We do not believe the cumulative effect
of these statements and any other errors in the record
caused the jury to lose sight of its duty. Moreover, the
evidence against Petitioner was devastating. Each of the
two victims, one of whom had been shot in the chest,
testified that Petitioner came to Ms. Washington’s house
with a gun and shot Mr. Davis, disputing Petitioner’s
self-defense claim. They immediately told their story to
the police and did so at separate times, without the
10
In that regard, the State’s comments appear to be like those in
Jordan, where the State attempted to “strike back” at the defense’s argument.
See 325 S.W.3d at 65. As the supreme court explained in Jordan, “[w]hile the
prosecutor reached too far in his argument, it appears that the prosecutor was
at least trying to place his argument in some overall context triggered by the
argument of defense counsel.” Id.
11
Again, Jordan is instructive. It reminds the bar “that it is
incumbent upon defense counsel to object contemporaneously whenever it deems the
prosecution to be making improper argument,” so that the trial court has the
opportunity to evaluate the argument and take any curative measures it deems
necessary. 325 S.W.3d at 57. The court warned that failure to do so waives the
issue. Id. However, the court also noted that even absent an objection, the
trial court “may intervene sua sponte when prosecutorial argument is clearly
improper.” Id. at 57 n. 14.
We also note that, as in Jordan, the trial court in this case gave the jury
a general instruction that counsels’ arguments are not evidence and should be
disregarded if they contradict the jurors’ recollection of the evidence. See id.
at 66.
48
opportunity to communicate beforehand.
Petitioner’s
self-defense argument was discredited when Petitioner was
impeached with his failure to tell anyone in law
enforcement his version of the story. The prosecutor’s
closing statements at issue did not concern those facts.
Thus, we conclude the statements were superfluous to the
jury’s ultimate conclusion, which it made in light of the
overwhelming
evidence
of
Petitioner’s
guilt.
Consequently,
we
do
not
believe
Petitioner
has
established that he was prejudiced by counsel’s failure
to object to the prosecutor’s statements.
The next set of statements that Petitioner contends
were improper and warranted an objection involved the
State’s commentary on trial counsel’s closing argument.
As noted above, trial counsel acknowledged at the
post-conviction hearing that her closing argument was
“novel.”
As we explained, during the closing, trial
counsel told the story of the case from the perspective
of Ms. Washington’s purported alter ego, Reecy.
In
rebuttal, the State dismissed trial counsel’s closing as
a “comedy routine” that was “degrading” and “insulting.”
Petitioner, citing Gann, asserts that the State’s
commentary improperly attacked counsel and her tactics.
The post-conviction court concluded that trial
counsel was not deficient because these statements were
not improper personal attacks.
Instead, the comments
responded to trial counsel’s unique closing and focused
on the defense’s theory of the case.
We
agree
with
the
post-conviction
court’s
conclusion. We read these statements to be comments upon
the defense’s theory, rather than personal comments about
trial counsel.
Trial counsel testified at the
post-conviction hearing that she had the same reaction to
the statements. We thus conclude that the Berry factors
counsel the same conclusion as we reached above. See 141
S.W.3d at 586.
The final set of comments to which, Petitioner
contends, trial counsel should have objected concerned
Petitioner’s burden of proof. The two statements about
which Petitioner complains are as follows:
If at any point [Petitioner] thought any of this was
true, and he doesn’t have to prove anything because
that’s the State's burden, but once he starts
49
presenting facts to you, you have the same
obligation to view what he tells you as you do in
what the State presents. If he presents something
to you, if he chooses to, it’s his obligation to
prove to you that it’s true. It is not the State’s
obligation to prove to you that it’s not true. He
made that choice to put that ridiculous self-defense
argument before you. It’s his obligation to prove
that’s true.
. . .
What you’ve heard in court absolutely from
[Petitioner]—and I’ll state again, [Petitioner] does
not have to present any proof. He doesn’t have to
prove anything.
But once he takes the stand and
tells you something, he presents that proof, it is
absolutely his obligation to convince you that what
he is saying is correct.
It’s his obligation to
convince you that he is credible.
It’s his
obligation to convince you that he is a truth
teller.
Petitioner contends that such statements improperly
indicate that Petitioner bears the burden of proof in his
self-defense claim. See State v. Belser, 945 S.W.2d 776,
782 (Tenn. Crim. App. 1996) (noting that the State “has
the burden of proving beyond a reasonable doubt that the
defendant did not act in self-defense”). As a result,
Petitioner argues, counsel was deficient for not
objecting.
We are not persuaded. The State repeatedly stated
that Petitioner was presumed innocent and did not have to
prove anything.
The State also accurately noted that
Petitioner bore the burden of persuading the jury that he
was credible.
See, e.g., 7 Tenn. Prac. Pattern Jury
Instr. T.P.I.—Crim. 42.04.
Counsel was therefore not
deficient in withholding an objection.
After a thorough review, we conclude that, as the
post-conviction
court
commented,
the
case
was
hard-fought. Parts of the State’s closing may have been
inappropriate, but Petitioner is not entitled to relief.
The statements either did not warrant further objection
or do not provide a basis for finding prejudice.
Morris v. State, 2010 WL 3970371 at *17-*21.
50
Under federal law, any prosecutorial comment or argument that
induces the jury to accept the prosecutor’s opinion to the detriment
of the facts of the case, is improper.
United States v. Young, 470
U.S. 1, 18–19, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985) (“[A] criminal
conviction is not to be lightly overturned on the basis of a
prosecutor’s comments standing alone, for the statements or conduct
must be viewed in context . . . .”).
At times, questionable
prosecutorial comments may be proper because they are “made in
response to the argument and strategy of defense counsel.”
Collins, 209 F.3d 486, 535 (6th Cir. 2000).
Byrd v.
Thus, even if “the
prosecutor’s remarks exceeded the permissible bounds,” the issue
remains
whether
circumstances.
the
remark
was
harmless
under
all
of
the
Young, 470 U.S. 13 n. 10.
The cited instances of the prosecutor’s alleged misconduct
occurred during the prosecutor’s closing argument and rebuttal. See
Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (“In order
to constitute the denial of a fair trial, prosecutorial misconduct
must be so pronounced and persistent that it permeates the entire
atmosphere of the trial.” (internal quotation marks omitted)). The
majority of the comments Morris targets came directly in response
to defense counsel’s closing argument, see United States v. Collins,
78 F.3d 1021, 1040 (6th Cir. 1996) (finding prejudicial effect
minimized where defense counsel’s argument invited the improper
statements of prosecutor’s personal opinion).
51
Trial counsel testified at the post-conviction hearing that she
did not object . . . because it was the State’s “argument . . .
their theory of the case” and because the prosecutor “was referring
to some direct testimony given by Mr. Morris where Mr. Morris was
indicating that . . . Mr. Coffee was trying - - that his job was to
seek convictions, and he was indicating that that wasn’t such that
his job was prosecutorial in nature.” (Tr. of Post-Conviction Hr’g,
Addendum 3, Volume 2, ECF No. 12-5 at Page ID # 1352, Volume 3, ECF
No. 12-6 at Page ID # 1371.)
As to the prosecutor’s characterization of trial counsel’s
closing argument, counsel testified that the prosecutor “was pretty
much attacking the way that I chose to close, and basically his
comments were aimed at me rather than Mr. Morris or the case . . .
he was just talking about the way that I chose to close . . . it was
personally objectionable to him as far as the way that I closed, but
it wasn’t improper.
(Tr. of Post-Conviction Hr’g, Addendum 3,
Volume 3, ECF No. 12-6 at Page ID # 1374.)
Counsel further
testified that she “didn’t feel it was a personal attack on [her].
[She] felt that maybe he wasn’t familiar with the type of closing
that I was doing.
Mr. Coffee and I worked together for a matter of
years so, no, I didn’t feel like there was a personal attack.” (Tr.
of Post-Conviction Hr’g, Addendum 3, Volume 3, ECF No. 12-6 at Page
ID # 1378-9.)
Counsel noted that there was an objection to the
prosecutor’s implication that defense counsel was doing something
52
unethical or did not have a duty to present truthful evidence and
the record supports her recollection. (Tr. of Post-Conviction Hr’g,
Addendum 3, Volume 3, ECF No. 12-6 at Page ID # 1374; Tr. of Trial,
Addendum 1, Volume 6, ECF No. 11-6 at Page ID # 797-99.)
Prosecutors should not level personal attacks against defense
counsel, and trial courts should not countenance such conduct.
See
United States v. Carter, 236 F.3d 777, 785 (6th Cir. 2001).
However, the likelihood that the prosecutor’s characterization of
defense counsel’s closing argument as a comedy routine (Trial Tr.,
Addendum 1, Volume 6, ECF No. 11-6 at Page ID # 795) significantly
impacted the trial is small, as the prosecutor merely accused the
defense counsel of being insensitive, and, in any case, the jurors
witnessed defense counsel’s conduct themselves and could form their
own impressions.
Cf. id. (prosecutor repeatedly accused defense
counsel of lying to the jury).
The Court agrees that some of the prosecutor’s comments were
close to unacceptable, however, the comments did not misstate
evidence, were not inflammatory, and did not suggest facts outside
the record.
Any prejudicial effect was lessened by the fact that
the comments were in response to the defense strategy and defense
counsel’s closing argument.
Although defense counsel could have
objected to the prosecutor’s closing argument and rebuttal, the
failure to object was not objectively unreasonable, based on the
trial court’s lukewarm reaction to counsel’s first objection.
53
Petitioner has not established a reasonable probability that, but
for the failure to object, the trial court
would have given
additional curative instructions or the result of the proceedings
would have been different.
The trial judge followed closing arguments with a limiting
instruction in response to counsel’s objection:
Ladies and gentlemen, both defense and the state
ha[ve] the obligation to seek the truth.
(Trial Tr., Addendum 1, Volume 6, ECF No. 11-6 at Page ID # 818.)
The judge declined to expand the instruction to specifically cover
the prosecutor’s comment that trial counsel’s reference to the
prosecutor as “[t]he government . . . [was] a little trick that
defense lawyers like.”
(Trial Tr., Addendum 1, Volume 6, ECF No.
11-6 at Page ID # 797, 809.)
The judge gave a second, appropriate
limiting instruction:
Statements, arguments, and remarks of counsel are
intended to help you understand the evidence and applying
the law, but they are not evidence. If any statements
were made that you believe are not supported by the
evidence, you should disregard them.
(Trial Tr., Addendum 1, Volume 6, ECF No. 11-6 at Page ID # 813.)
Although a general instruction at the end of closing statements
may not be sufficient to cure the full impact of a prosecutor’s
improper remarks in every case, see, e.g., United States v. Carter,
236 F.3d 777, 787 (6th Cir. 2001) (“We believe that measures more
substantial than a general instruction that ‘objections or arguments
made by lawyers are not evidence in the case’ were needed to cure
54
the prejudicial effect of the prosecutor’s comments during closing
arguments.” (footnote omitted)), the instruction does lessen the
impact of such remarks, as the jury is presumed to follow all of the
court’s instructions, see United States v. Sivils, 960 F.2d 587, 594
(6th Cir.1992), not just the contemporaneous ones.
Morris’ brief on post-conviction appeal failed to offer, much
less develop, any specific factual allegations to show how he was
prejudiced as a result of the lack of objections.
Instead, he
simply asserted that “[t]rial counsel was deficient for failing to
timely object” and “[t]he jury had to have been confused” “despite
the trial court correctly instruct[ing] the jury that the State must
prove beyond a reasonable doubt that Petitioner did not act in selfdefense before Petitioner could be convicted.”
(Post-conviction
Appeal Brief (“Br.”), Addendum 4, Document 1, ECF No. 13-8 at Page
ID # 2320-32).
In the absence of any explanation in the state
court, or in this Court for that matter, as to how counsel’s failure
to object harmed Morris, there is nothing to support a finding that
he suffered any prejudice from counsel’s alleged shortcoming.
Morris has not satisfied his burden of showing that he suffered
any prejudice from the lack of objections to the prosecutor’s
argument and rebuttal.
Weygandt v. Ducharme, 774 F.2d 1491, 1493
(9th Cir. 1985) (“Although [petitioner’s] attorney should have
objected to the prosecutor’s improper remarks, his failure to do so,
evaluated in light of the overwhelming evidence of guilt presented
55
at trial, did not so prejudice [the petitioner] as to deprive him
of a fair trial.”).
ineffective
The state courts’ rejection of this claim of
assistance
of
counsel
unreasonable application of Strickland.
was
not
an
objectively
Because the state courts’
determination was reasonable and in accord with established federal
law, Morris is not entitled to relief on this claim.
Issue 1(c) is
DENIED.
Issue 1(f)
Counsel’s Failure to Adequately Investigate the Case by
Having the Pistol, Casing, Clip, and Unfired Bullet
Tested for Fingerprints
Petitioner contends that counsel performed deficiently by
failing to have the pistol, casing, clip, and unfired bullet tested
for fingerprints.
(Am. Pet., ECF No. 3 at Page ID # 30-31.)
The
State responds that the Tennessee Court of Criminal Appeals relied
on the relevant Supreme Court precedent and the decision was not
based on an unreasonable determination of the facts in light of the
evidence presented.
(Answer, ECF No. 10 at Page ID # 111.)
The Tennessee Court of Criminal Appeals reviewed this claim and
determined:
Petitioner contends that trial counsel was deficient
for failing to seek fingerprint evidence on the magazine
and unfired bullet in the .380 handgun used to shoot Mr.
Davis.
However, Petitioner has failed to present any
evidence to show that there were any fingerprints on the
magazine or bullet, let alone that such prints would have
helped his defense.
As Petitioner correctly notes,
“[w]hen a petitioner contends that trial counsel failed
to discover, interview, or present witnesses in support
of his defense, these witnesses should be presented by
56
the petitioner at the evidentiary hearing.”
Black v.
State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). That
is true in cases concerning possible fingerprint
evidence.
See Edward R. Forester v. State, No.
E2005–01922–CCA–R3–PC, 2006 WL 2706150, at *8 (Tenn.
Crim. App. at Knoxville, Sept. 21, 2006).
Petitioner
failed to present an expert to testify about what
fingerprints were present on the magazine or unfired
bullet. Indeed, it is not at all clear there even were
any fingerprints to be found. Petitioner has thus failed
to demonstrate prejudice.
Morris v. State, 2010 WL 3970371 at *21.
Morris did not present any testimony or evidence in state court
to support his allegations that fingerprint evidence would have been
useful in his defense.
It was undisputed that Morris was wearing
gloves the morning of the shooting.
It was also undisputed that
James Davis handled and held the gun when he wrestled it away from
Morris.
(Trial Tr., Addendum 1, Volume 4, ECF No. 11-4 at Page ID
# 606.)
Officer Bishop testified that his partner, Officer Gaylor,
picked up the weapon and handed it to Bishop, who “checked it,
cleared it.
There was one live round in the chamber and no
additional rounds in the magazine.”
(Trial Tr., Addendum 1, Volume
3, ECF No. 11-3 at Page ID # 461-63.)
The gun was then “secured in
[his] squad car.”
(Trial Tr., Addendum 1, Volume 3, ECF No. 11-3
at Page ID # 463.)
Crime Scene Sergeant Oliver testified at trial
that the gun “wasn’t processed for fingerprints” because “the
officer had handled the gun . . . possibly contaminated the gun.”
(Trial Tr., Addendum 1, Volume 3, ECF No. 11-3 at Page ID # 422.)
57
Sergeant Oliver also testified that fingerprints are not found often
on guns.
(Trial Tr., Addendum 1, Volume 3, ECF No. 11-3 at Page ID
# 423.)
Crime Scene Officer Peppers testified that the weapon was
not processed for fingerprints because “[t]he weapon was collected
by one of the scene officers before we arrived on the scene” and “we
had determined that since the officers had handled the weapon it was
contaminated.”
(Trial Tr., Addendum 1, Volume 3, ECF No. 11-3 at
Page ID # 431-32.)
The Sixth Circuit “has held that a petitioner cannot show
deficient performance or prejudice resulting from a failure to
investigate if the petitioner does not make some showing of what
evidence counsel should have pursued and how such evidence would
have been material.”
Cir. 2002).
Hutchison v. Bell, 303 F.3d 720, 748–749 (6th
Because Morris offered no proof about the presence of
fingerprints or how that proof would have benefitted the defense,
Morris has failed to show prejudice for this alleged error on the
part of his trial attorney.
Martin v. Mitchell, 280 F.3d 594, 608
(6th Cir. 2002) (finding no prejudice where petitioner failed to
demonstrate
“how
the
retention
of
experts,
an
examination
of
Henderson’s statement, and contacting and/or interviewing his family
members would have been beneficial to his defense”).
Absent a showing of prejudice, the state court correctly found
that this claim of ineffective assistance lacks merit.
is DENIED.
58
Issue
1(f)
Issue 2
Petitioner’s Sentences Violate his Sixth Amendment Right
to Trial by Jury under Blakely v. Washington, 542 U.S.
296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)
Petitioner
contends
that
his
announced in Blakely v. Washington.
ID # 32.)
sentences
violate
the
rule
(Am. Pet., ECF No. 3 at Page
The State responds that, to the extent this Court could
find that the two enhancement factors relied on by the Court of
Criminal Appeals on direct appeal violate Blakely, Morris is not
entitled to habeas corpus relief because any Blakely error is
harmless.
(Answer, ECF No. 10 at Page ID 117-119.)
The Tennessee Court of Criminal Appeals concluded that, based
on state law, several enhancement factors applied by the trial court
were not supported by the record and reduced Petitioner’s effective
sentence.
The Court of Criminal Appeals explained:
II. Excessive Sentence
After a sentencing hearing, the trial court
sentenced the Defendant as a Range I, standard offender
to a term of twenty-five years imprisonment for each
conviction, to be served consecutively for an effective
term of fifty years.
In doing so, the trial court
applied four enhancement factors to each conviction: that
each offense involved more than one victim; that Morris
employed a firearm during the commission of each offense;
that Morris had no hesitation about committing each
offense when the risk to human life was high; and each
offense was committed under circumstances under which the
potential for bodily injury to a victim was great. See
Tenn. Code Ann. §§ 40-35-114(4), (10), (11), (17). . . .
Morris now complains that the trial court erred in its
application of enhancement factors, relying on Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). . . .
A. Standard of Review
59
Before a trial court imposes a sentence upon a
convicted criminal defendant, it must consider (a) the
evidence adduced at the trial and the sentencing hearing;
(b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives;
(d) the nature and characteristics of the criminal
conduct involved; (e) evidence and information offered by
the parties on the enhancement and mitigating factors set
forth in Tennessee Code Annotated sections 40-35-113 and
40-35-114; and (f) any statement the defendant wishes to
make in the defendant’s own behalf about sentencing. See
Tenn. Code Ann. § 40-35-210(b); State v. Imfeld, 70
S.W.3d 698, 704 (Tenn. 2002). To facilitate appellate
review, the trial court is required to place on the
record its reasons for imposing the specific sentence,
including the identification of the mitigating and
enhancement factors found, the specific facts supporting
each enhancement factor found, and the method by which
the mitigating and enhancement factors have been
evaluated and balanced in determining the sentence. See
State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001).
Upon a challenge to the sentence imposed, this court
has a duty to conduct a de novo review of the sentence
with a presumption that the determinations made by the
trial court are correct.
See Tenn. Code Ann. §
40-35-401(d). However, this presumption “is conditioned
upon the affirmative showing in the record that the trial
court considered the sentencing principles and all
relevant facts and circumstances.” State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991).
If our review reflects
that the trial court followed the statutory sentencing
procedure, that the court imposed a lawful sentence after
having given due consideration and proper weight to the
factors and principles set out under the sentencing law,
and that the trial court’s findings of fact are
adequately supported by the record, then the presumption
is applicable, and we may not modify the sentence even if
we would have preferred a different result. See State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
We will uphold the sentence imposed by the trial court if
(1) the sentence complies with the purposes and
principles of the 1989 Sentencing Act, and (2) the trial
court’s findings are adequately supported by the record.
See State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001).
The burden of showing that a sentence is improper is upon
the appealing party.
See Tenn. Code Ann. § 40-35-401
Sentencing Commission Comments; Arnett, 49 S.W.3d at 257.
60
B. Application of Enhancement Factors
We turn first to the Defendant’s contentions
regarding the Blakely decision. In that case, the United
States Supreme Court examined certain provisions of the
State of Washington’s sentencing scheme.
Those
provisions
allowed
a
trial
court
to
impose
an
“exceptional [that is, longer] sentence” after making a
post-trial
determination
that
certain
statutory
enhancement factors existed. This determination was to
be made by the trial court without the benefit of a jury.
The Supreme Court determined in Blakely that the
protections in the Sixth Amendment to the United States
Constitution would allow a defendant’s sentence to be
increased only if the enhancement factors relied upon by
the trial court (other than prior criminal history) were
based on facts reflected in the jury verdict or admitted
by the defendant. See 124 S. Ct. at 2537. The Court
concluded that “every defendant has the right to insist
that the prosecutor prove to a jury all facts legally
essential to the punishment.” Id. at 2543. On the basis
of this case, Morris argues that the trial court erred by
enhancing his sentence based on facts not reflected in
the jury verdict or admitted by him.
The Tennessee Supreme Court has considered the
applicability of the Blakely decision to Tennessee’s
sentencing scheme in State v. Gomez, 163 S.W.3d 632
(Tenn. 2005). In Gomez, our high court concluded that
Tennessee’s sentencing structure does not violate a
criminal defendant’s Sixth Amendment right to a jury
trial. See id. at 661. Accordingly, Morris’ argument on
this issue is misplaced.
Morris is not entitled to
relief on this basis.
We find pursuant to our de novo review, however,
that the trial court erroneously applied certain
enhancement factors in a manner contrary to law.
Our
Criminal Sentencing Reform Act of 1989 provides for the
application of certain enhancement factors to a
defendant’s presumptive sentence if they are “appropriate
for the offense” and “not themselves essential elements
of the offense as charged in the indictment.” Tenn. Code
Ann. § 40-35-114.
Moreover, our supreme court has
recognized that “factors which are inherent in a
particular offense, even if not designated as an element,
should not be given substantive weight in increasing a
sentence.”
State v. Pike, 978 S.W.2d 904, app. 927
61
(Tenn. 1998). Nevertheless, the trial court in this case
applied two enhancement factors that are inherent in the
crime of attempted premeditated murder: that the
Defendant had no hesitation about committing a crime when
the risk to human life was high, and that he committed
the crimes under circumstances under which the potential
for bodily injury to a victim was great. See Tenn. Code
Ann. §§ 40-35-114(11), (17). This Court has previously
held that these enhancement factors cannot be applied to
a conviction for attempted first degree murder “because
the risk to human life and the great potential for bodily
injury always exist with an attempted first degree
murder.” State v. Nix, 922 S.W.2d 894, 903 (Tenn. Crim.
App. 1995). See also Pike, (holding it inappropriate to
apply the “no hesitation” factor to a conviction of
conspiracy to commit first degree murder). Accordingly,
the trial court erred when it enhanced Morris’ sentences
on the basis of these two factors.
The trial court also erred when it enhanced Morris’
sentences for each crime on the basis that each offense
involved more than one victim. See Tenn. Code Ann. §
40-35-114(4). This Court has held that this factor may
not be applied when the defendant is separately convicted
of the offenses involved against each victim. See State
v. Freeman, 943 S.W.2d 25, 31 (Tenn. Crim. App. 1996).
Here, there were only two victims and Morris was
separately convicted of an offense as to each victim.
Moreover, our supreme court has held that there cannot be
multiple victims for any single offense where the
indictment specifies a named victim.
See Imfeld, 70
S.W.3d at 706.
Morris was charged in a two count
indictment in which Count 1 specified that Morris had
attempted to commit first degree premeditated murder
against Teresa Washington, and Count 2 specified that
Morris had attempted to commit first degree premeditated
murder against James Davis. Accordingly, the trial court
should not have enhanced either of Morris’ sentences on
the basis that the offenses involved more than one
victim.
The trial court properly enhanced each of Morris’
sentences on the basis that Morris used a firearm during
the commission of the crimes.
See Tenn. Code Ann. §
40-35-114(10); State v. Jackson, 946 S.W.2d 329, 334
(Tenn. Crim. App. 1996). Moreover, we find that Morris’
sentence for his attempted murder of James Davis should
be enhanced on the basis that Morris’ actions during the
62
commission of the felony resulted in serious bodily
injury to James Davis.
See Tenn. Code Ann. §
40-35-114(13). Mr. Davis testified that Morris shot him
in the right chest. He also testified that the bullet
remained in his body because “it would do more damage
taking it out . . . because they’ll have to split [his]
chest open to get it.” Ms. Washington also testified at
the sentencing hearing that Mr. Davis was in the hospital
as a result of this wound for “a few” weeks. We have no
difficulty concluding that Mr. Davis’ gunshot wound
satisfies the definition of “serious bodily injury.” See
id. § 39-11-106(34). Moreover, this Court has previously
held that this enhancement factor applies to a sentence
for attempted murder where the victim is actually injured
during the commission of the crime.
See Freeman, 943
S.W.2d at 32. Accordingly, the trial court should have
applied this enhancement factor to Morris’ sentence for
the attempted murder of Mr. Davis.
Morris was convicted of two Class A felonies. See
Tenn. Code Ann. § 39-11-117(a)(2).
The presumptive
sentence for a Class A felony is the midpoint of the
applicable range. See id. § 40-35-210(c). Morris was
sentenced as a Range I, standard offender. The Range I
sentence for a Class A felony is fifteen to twenty-five
years.
See id. § 40-35-112(a)(1).
Accordingly, the
presumptive sentence for each of Morris’ convictions is
twenty years.
Morris’ sentence for his attempted murder of Teresa
Washington was properly enhanced by one enhancement
factor: that Morris used a firearm in the commission of
the offense. See id. § 40-35-114(10). An increase of
two years in Morris’ presumptive sentence of twenty years
is appropriate for the application of this single
enhancement factor. Because the trial court erroneously
applied three additional enhancement factors to arrive at
a sentence of twenty-five years, we modify Morris’
sentence for his attempted murder of Teresa Washington to
twenty-two years.
Morris’ sentence for his attempted murder of James
Davis is properly enhanced by two enhancement factors:
that Morris used a firearm in the commission of the
offense, and that Morris’ actions during the commission
of the offense caused James Davis to suffer serious
bodily injury.
See id. §§ 40-35-114(10), (13).
An
increase of five years to Morris’ presumptive sentence of
63
twenty years is appropriate for the application of these
two enhancement factors.
Accordingly, we affirm the
trial court’s imposition of a twenty-five year sentence
for Morris’ attempted murder of James Davis.
State v. Morris, 2005 WL 6235723 at *8-*11.
Morris’ conviction was not final when the decision in Blakely
was
announced.12
After
Morris’
conviction
became
final,
the
Tennessee Supreme Court acknowledged that Tennessee’s Criminal
Sentencing Act Reform Act of 1989, see Tenn. Code Ann. § 40-35-210
(2000), was unconstitutional under Blakely.
S.W.3d 733, 740 (Tenn. 2007) (“Gomez II”).
State v. Gomez, 239
The Sixth Circuit has
summarized the relevance of Blakely, to Tennessee’s sentencing law
as follows:
At this point, a short primer on Blakely is
necessary to understand the parties’ arguments.
The
relevant United States Supreme Court precedent begins
with Apprendi v. New Jersey, which held that “[o]ther
than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” 530 U.S. 466, 490, 120 S.
Ct. 2348, 147 L. Ed. 2d 435 (2000). Four years later, in
12
State convictions ordinarily become “final” within the meaning of §
2244(d)(1)(A) when the time expires for filing a petition for a writ of
certiorari from a decision of the highest state court on direct appeal. Pinchon
v. Myers, 615 F.3d 631, 640 (6th Cir. 2010); Sherwood v. Prelesnik, 579 F.3d 581,
585 (6th Cir. 2009). The Tennessee Court of Criminal Appeals issued its decision
on direct appeal on September 7, 2005. Petitioner did not seek permission to
appeal. Rule 11(b) of the Tennessee Rules of Appellate Procedure provides that
“[t]he application for permission to appeal shall be filed with the clerk of the
Supreme Court within 60 days after the entry of the judgment of the Court of
Appeals or Court of Criminal Appeals if no timely petition for rehearing is
filed, or, if a timely petition for rehearing is filed, within 60 days after the
denial of the petition or entry of the judgment on rehearing.” The sixtieth day
fell on Sunday, November 6, 2005. Petitioner had until the close of business on
the next business day, November 7, 2005, to seek permission to appeal. Tenn.
Rule App. P. 21(a). Because Petitioner did not seek permission to appeal to the
Tennessee Supreme Court, he was not entitled to file a petition for a writ of
certiorari with the United States Supreme Court.
64
Blakely, the Court clarified that the definition of
“‘statutory maximum’ for Apprendi purposes is not the
high-end that a sentence may not exceed, but rather the
maximum sentence a judge may impose solely on the basis
of the facts reflected in the jury verdict or admitted by
the defendant.”
Blakely, 542 U.S. at 303, 124 S. Ct.
2531.
A year later, the Court clarified that the
Apprendi/Blakely rule applies to the federal sentencing
guidelines.
United States v. Booker, 543 U.S. 220,
226-27, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
In its first encounter with Blakely, the Tennessee
Supreme Court determined that the rule did not
necessarily invalidate § 40-35- 210. State v. Gomez, 163
S.W.3d 632, 661 (Tenn. 2005) (“Gomez I”). The defendants
in Gomez I, however, filed a petition for certiorari to
the United States Supreme Court. On January 27, 2007,
the Court invalidated California’s sentencing procedure,
which was virtually identical to Tennessee’s. Cunningham
v. California, 549 U.S. 270, 127 S. Ct. 856, 166 L. Ed.
2d 856 (2007). On February 20, 2007, the Supreme Court
vacated Gomez I and remanded the case to the Tennessee
Supreme Court for consideration in light of Cunningham.
Gomez v. Tennessee, 549 U.S. 1190, 127 S. Ct. 1209, 167
L. Ed. 2d 36 (2007). On remand, the Tennessee Supreme
Court acknowledged that § 40-35-210 “violated the Sixth
Amendment as interpreted by the Supreme Court in
Apprendi, and Cunningham.” State v. Gomez, 239 S.W.3d
733, 740 (Tenn. 2007) (“Gomez II”).
Lovins v. Parker, 712 F.3d 283, 289-09 (6th Cir. 2013).
As the law stands today, Morris’ sentence violated the Sixth
Amendment.
Respondent urges the Court to deny the habeas writ
because the record contains overwhelming and uncontroverted evidence
that would support a jury finding on the two remaining applicable
enhancements, thus rendering the Blakely error harmless.
(Answer,
ECF No. 10 at Page ID # 117-18.)
A Blakely error is not “structural” and is thus amenable to a
harmless-error analysis.
Villagarcia v. Warden, 599 F.3d 529, 536
65
(6th Cir. 2010) (citing Washington v. Recuenco, 548 U.S. 212, 218,
221, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006)).
“Under the
harmless error test, a remand for an error at sentencing is required
unless we are certain that any such error was harmless - i.e. any
such error ‘did not affect the district court’s selection of the
sentence imposed.’”
United States v. Hazelwood, 398 F.3d 792, 801
(6th Cir. 2005) (citing Williams v. United States, 503 U.S. 193,
203, 112 S. Ct. 1112, 117 L. Ed. 2d 341 (1992)).
The more state-friendly standard from Brecht v. Abrahamson, 507
U.S. 619, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993), is applied in
the context of AEDPA.
harmless
unless
it
Under the Brecht standard, “an error is
had
substantial
and
injurious
effect
or
influence” on the outcome of the case. Fry v. Pliler, 551 U.S. 112,
116, 127 S. Ct. 2321, 168 L. Ed. 2d 16 (2007) (internal quotation
marks omitted).
“Under Fry, an error is considered not harmless
when ‘the matter is so evenly balanced that the habeas court has
grave doubt as to the harmlessness of the error.’” Villagarcia, 599
F.3d at 537 (quoting Hereford v. Warren, 536 F.3d 523, 533 (6th
Cir.2008)).
The Recuenco Court observed that
Our decision in Apprendi [v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000),] makes clear
that “[a]ny possible distinction between an ‘element’ of
a felony offense and a ‘sentencing factor’ was unknown to
the practice of criminal indictment, trial by jury, and
judgment by court as it existed during the years
surrounding our Nation’s founding.” [Id.] at 478 [120 S.
Ct. 2348] (footnote omitted).
Accordingly, we have
66
treated sentencing factors, like elements, as facts that
have to be tried to the jury and proved beyond a
reasonable doubt. [Id. at 483–84, 120 S. Ct. 2348.]
548 U.S. at 220, 126 S. Ct. 2546 (second alteration in original).
A Blakely error is treated the same way as an error in instructing
the jury on the essential elements of a crime.
Ibid. (citing Neder
v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35
(1999)); see also United States v. Williams, 493 F.3d 763, 766 (7th
Cir. 2007) (“The implication of equating sentencing factors and
elements of a crime for purposes of the requirements of the jury and
the burden of proof is to equate them also for harmless error
purposes.”).
A jury-instruction error is harmless if it “is clear
beyond a reasonable doubt that a rational jury would have found the
defendant guilty absent the error.” United States v. King, 272 F.3d
366, 378 (6th Cir. 2001) (citing Neder, 527 U.S. at 18, 119 S. Ct.
1827).
No doubt exists in this case. The record is replete with
uncontroverted evidence supporting the two enhancements upheld by
the Tennessee Court of Criminal Appeals on direct appeal. The Court
of Criminal Appeals found that Morris “possessed or employed a
firearm . . . during the commission of the offense[s].”
Tenn. Code
Ann. § 40–35–114(10) (2002) (current version at Tenn. Code Ann. §
40–35–114(9) (2012)). The appellate court also held that Morris’
sentence for the attempted murder of James Davis should be enhanced
on the basis that Morris’ actions during the commission of the
67
felony resulted in serious bodily injury to James Davis.
See Tenn.
Code Ann. § 40-35-114(13) (2002) (current version at Tenn. Code Ann.
§ 40-35-114(12) (2012)).
Teresa Washington testified that she opened the door and “heard
the gun go off, boom, and [ ] seen the flash . . . it went off again
and [she] felt the second bullet go past [her] temple and [she]
dropped to [the] floor to play dead.”
Volume 4, ECF No. 11-4, Page ID # 518.)
(Tr. of Trial, Addendum I,
Washington testified that
she felt “the wind of the bullet go past.”
(Tr. of Trial, Addendum
I, Volume 4, ECF No. 11-4, Page ID # 518.)
Ms. Washington stated
that the Petitioner stepped over her and “James was behind me . .
. [she] heard a shot go off.
[She] heard boom, boom, boom go off.
. . [she] don’t want to die . . . And Mr. Davis - [she] heard a
boom, and they went down to the floor.”
(Tr. of Trial, Addendum I,
Volume 4, ECF No. 11-4, Page ID # 519.)
Later Washington testified
“that’s when [she] heard Roosevelt’s voice. He was like, man, y’all
ruined my life. I’m going to kill y’all.”
(Tr. of Trial, Addendum
I, Volume 4, ECF No. 11-4, Page ID # 521.)
Washington testified
that Petitioner Morris brought the gun into her house.
(Tr. of
Trial, Addendum I, Volume 4, ECF No. 11-4, Page ID # 523.)
Washington ran to get help and when she saw police lights she “ran
back across the street. And she s[aw] Mr. Davis laying on the porch
bleeding.”
(Tr. of Trial, Addendum I, Volume 4, ECF No. 11-4, Page
ID # 528.)
68
James Davis testified that “Ms. Washington opened the inner
door and she unlocked the outer door and all of a sudden a body
appear. [He heard] a shot, boom, she screams, she falls. And, well,
after that this gentleman entered the house, he shoots [me] and he[]
just goes shooting three or four more times.”
(Tr. of Trial,
Addendum I, Volume 4, ECF No. 11-4, Page ID # 601.) Davis testified
that he thought Petitioner had killed Ms. Washington.
(Tr. of
Trial, Addendum I, Volume 4, ECF No. 11-4, Page ID # 605.)
Davis
testified that Petitioner shot him in the right side of the chest.
(Tr. of Trial, Addendum I, Volume 4, ECF No. 11-4, Page ID # 605.)
Davis testified that when he realized Petitioner’s gun had jammed,
he threw Petitioner to the floor and Petitioner’s head hit the
coffee table.
(Tr. of Trial, Addendum I, Volume 4, ECF No. 11-4,
Page ID # 607-08.)
Davis testified he was taken by paramedics to
the Regional Medical Center, but the bullet is still inside him.
(Tr. of Trial, Addendum I, Volume 4, ECF No. 11-4, Page ID # 61415.)
He testified that “they said it would do more damage taking
it out than they would leaving it in because they’ll have to split
my chest open to get it.”
(Tr. of Trial, Addendum I, Volume 5, ECF
No. 11-5, Page ID # 623.)
Davis was hospitalized for three weeks.
(Tr. of Trial, Addendum I, Volume 5, ECF No. 11-5, Page ID # 623.)
The jury accredited the testimonies of Washington and Davis.
This evidence leaves little doubt, let alone grave doubt, that the
jury would have found that Morris possessed and used a gun during
69
the
attempted
first
degree
premeditated
Washington beyond a reasonable doubt.
murders
of
Davis
and
The record is teeming with
relevant and persuasive evidence that Morris possessed and used a
firearm during the commission of the offenses and that his actions
caused serious bodily injury to James Davis. There is no doubt that
the failure to submit these elements to the jury was harmless in
based on the record before the Court.
Based on the record, the state court undoubtably would have
imposed the same sentence absent the Blakely error, and it was
therefore harmless.
Because the Court is free of grave doubt that
a jury would have found the omitted element or enhancement satisfied
beyond a reasonable doubt, Morris is entitled to no relief.
As the
Supreme Court stated in Neder, the case that formed the logical
basis for Recuenco: “[T]his approach reaches an appropriate balance
between society’s interest in punishing the guilty and the method
by which decisions of guilt are to be made.”
S. Ct. 1827.
527 U.S. at 18, 119
Because he has failed to show harm resulting from the
state’s error, Morris is not entitled to habeas relief.
Issue 2 is
DENIED.
Because the issues raised by Morris are barred by procedural
default or without merit, the Petition is DISMISSED WITH PREJUDICE.
Judgment shall be entered for Respondent.
70
V.
APPEAL ISSUES
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, 123 S. Ct. 1029, 1039, 154 L. Ed. 2d 931 (2003); Bradley v.
Birkett, 156 F. App’x 771, 772 (6th Cir. 2005).
The Court must
issue or deny a certificate of appealability (“COA”) when it enters
a final order adverse to a § 2254 petitioner.
Rule 11, Rules
Governing Section 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
further.’”
were
‘adequate
to
deserve
encouragement
to
proceed
Miller-El, 537 U.S. at 336, 123 S. Ct. at 1039 (citing
Slack v. McDaniel, 529 U.S. 473, 84, 120 S. Ct. 1595, 1603-04, 146
L. Ed. 2d 542 (2000)); Henley v. Bell, 308 F. App’x 989, 990 (6th
Cir. 2009) (per curiam) (same), cert. denied, 555 U.S. 1160, 129 S.
Ct. 1057, 173 L. Ed. 2d 482 (2009).
71
A COA does not require a
showing that the appeal will succeed.
Miller-El, 537 U.S. at 337,
123 S. Ct. at 1039; Caldwell v. Lewis, 414 F. App’x 809, 814-15 (6th
Cir. 2011) (same).
Courts should not issue a COA as a matter of
course. Bradley, 156 F. App’x at 773 (quoting Slack, 537 U.S. at
337, 123 S. Ct. at 1039).
In this case, there can be no question that the claims in this
petition are barred by procedural default or without merit. Because
any appeal by Petitioner on the issues raised in this petition does
not
deserve
attention,
the
Court
DENIES
a
certificate
of
appealability.
In
this
case,
for
the
same
reasons
the
Court
denies
a
certificate of appealability, the Court determines that any appeal
would not be taken in good faith.
It is therefore CERTIFIED,
pursuant to Fed. R. App. P. 24(a), that any appeal in this matter
would not be taken in good faith, and leave to appeal in forma
pauperis is DENIED.13
IT IS SO ORDERED this 30th day of June, 2014.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
13
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 (30) days of the
date of entry of this order. See Fed. R. App. P. 24(a)(5).
72
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