United States District Court, W.D. Texas, San Antonio Division
MEMORANDUM OPINION AND ORDER
A. EZRA SENIOR UNITED STATES DISTRICT JUDGE.
Morrison, an inmate in the custody of the Texas Department of
Criminal Justice-Correctional Institutions Division, has
filed a pro se application for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his conviction
for capital murder. Morrison was granted leave to proceed
in forma pauperis in this matter. (ECF No. 8). As
required by Rule 4 of the Rules Governing Section 2254 Cases,
the Court conducted a preliminary review of the petition.
Having considered the habeas application (ECF No. 3),
Morrison's memorandum in support of his petition (ECF No.
4), Respondent's Answer (ECF No. 14), the record (ECF
Nos. 15-19), and applicable law, the Court finds the petition
should be DENIED.
jury indictment returned July 15, 2009, charged Morrison with
capital murder in the deaths of Krystle Moten and her mother,
Laura Moten, during the same course of action. (ECF No. 15-13
at 16). The State sought the death penalty as punishment.
(ECF No. 15-13 at 17, 21). Morrison claimed he acted
in self-defense, although he did not testify at his trial,
and the jury was instructed on self-defense. (ECF No. 16-1 at
31-37). On October 12, 2012, after deliberating for
approximately four hours, the jury returned a verdict of
guilty as charged. (ECF No. 16-3 at 6; ECF No. 16-4 at 14).
After a sentencing hearing, the jury returned answers of
"no" as to the issue of future dangerousness and
"yes" as to the issue of mitigating circumstances,
(ECF No. 15-3 at 8; ECF No. 16-2 at 20), and Morrison was
sentenced to a term of life imprisonment without parole.
timely appealed his conviction, asserting a Batson
claim. (ECF No. 15-3). The Fourth District Court of Appeals
affirmed his conviction and sentence. Morrison v.
State, No. 04-12-00744-CR, 2014 WL 3747226 (Tex.
App.-San Antonio 2014), Morrison then applied for a state
writ of habeas corpus, alleging he was denied the effective
assistance of appellate counsel; Movant asserted his
appellate counsel's error denied him the opportunity to
timely seek discretionary review in his direct appeal. (ECF
No. 11-8 at 5-22). The state trial court made findings of
fact and conclusions of law, and recommended the writ be
granted. (ECF No. 19-8 at 94-98). The Texas Court of Criminal
Appeals granted the writ, (ECF No. 19-7), and allowed
Morrison to file an out-of-time petition for discretionary
review, but then refused review on the merits. Ex parte
Morrison, No. WR-84, 067-01, 2015 WL 6966136 (Tex. Crim.
App. 2015); Morrison v. State, No. PD-1654-15 (Tex.
Crim. App. 2016).
filed a second application for state habeas relief, alleging:
(1) ineffective assistance of trial and appellate counsel;
(2) prosecutorial misconduct; (3) an abuse of the trial
court's discretion in admitting testimony from the
Medical Examiner; (4) the jury erred by finding him guilty of
murder because there was evidence to support his claim of
self-defense; and (5) insufficiency of the evidence. (ECF No.
19-11 at 4-30). The state trial court, which was also the
convicting court, made findings of fact and conclusions of
law, and recommended the writ be denied. (ECF No. 19-11 at
40-44). Specifically, the trial court concluded
Morrison's second habeas application was successive and
he failed to show his ineffective assistance of counsel
claims could not have been presented in his first state
habeas action. (ECF No. 19-11 at 43-44). The court further
found Morrison failed to raise his prosecutorial misconduct
and insufficient evidence claims in his direct appeal.
Id. The habeas trial court did not address the
merits of any of Morrison's claims for relief.
Id. The Court of Criminal Appeals denied the writ
without written order on the findings of the trial court.
(ECF No. 19-9).
federal habeas petition Morrison asserts: (1) he was denied
the effective assistance of trial and appellate counsel; (2)
the prosecutor misstated the law of self-defense during voir
dire and alluded to evidence not admitted at trial; (3) the
trial court abused its discretion by allowing testimony from
the Medical Examiner; and (4) the jury erred by returning a
guilty verdict after asking for clarification of the law on
self-defense. (ECF No. 3 at 6-7). Respondent allows the
petition is timely and not successive, and also allows
Morrison exhausted all of his claims in the state court
except for his fourth claim for relief. (ECF No. 14 at
4). Respondent further contends Morrison's first and
second claims are procedurally barred, and that his claim of
trial court error is without merit.
Exhaustion and procedural default
special circumstances, a federal habeas petitioner must
exhaust his state remedies by pressing his claims in state
court before he may seek federal habeas relief."
Orman v. Cain, 228 F.3d 616, 619-20 (5th Cir. 2000)
(citing 28 U.S.C. § 2254(b)(1)). Pursuant to the
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), federal courts lack the power to grant
habeas corpus relief on an unexhausted claim. Kunkle v.
Dretke, 352 F.3d 980, 988 (5th Cir. 2003). To exhaust
his state remedies, a petitioner must present his claims to
the state's highest court in a procedurally correct
manner. O'Sullivan v. Boerckel, 526 U.S. 838,
845 (1999); Moore v. Cain, 298 F.3d 361, 364 (5th
Cir. 2002). In Texas, the highest state court with
jurisdiction to review the validity of a state criminal
conviction is the Texas Court of Criminal Appeals. Tigner
v. Cockrell, 264 F.3d 521, 526 (5th Cir. 2001). Once a
federal claim has been fairly presented to the Texas Court of
Criminal Appeals, either in a direct appeal or collateral
proceeding, the exhaustion requirement is satisfied.
Bautista v. McCotter, 793 F.2d 109, 110-11 (5th Cir.
1986). To be properly exhausted, a claim must be presented to
the Court of Criminal Appeals in a procedurally correct
manner; the failure to present a claim in accordance with a
state's rules renders it procedurally defaulted:
If a state court clearly and expressly bases its dismissal of
a prisoner's claim on a state procedural rule, and that
procedural rule provides an independent and adequate ground
for dismissal, the prisoner has procedurally defaulted his
federal habeas claim. The state procedural rule must be both
independent of the merits of the federal claim and an
adequate basis for the court's decision. A state
procedural rule is an adequate basis for the court's
decision only if it is strictly or regularly applied
evenhandedly to the vast majority of similar claims.
Rocha v. Thaler, 626 F.3d 815, 820-21 (5th Cir.
2010) (internal quotations omitted).
procedural ground is "independent" if, as in this
matter, the last reasoned state court opinion clearly and
expressly indicates that its decision was based on state law
and independent of federal law. Fisher v. Texas, 169
F.3d 295, 300 (5th Cir. 1999); Reed v. Scott, 70
F.3d 844, 846 (5th Cir. 1991). See also Wilson v.
Sellers, 138 S.Ct. 1188, 1192 (2018) ("We hold that
the federal court should "look through" the
unexplained decision to the last related state-court decision
that does provide a relevant rationale. It should then
presume that the unexplained decision adopted the same
reasoning."). A state procedural ground is
"adequate" when the procedural rule is
"strictly and regularly followed" and applied
consistently in the vast majority of similar cases. Ford
v. Georgia, 498 U.S. 411, 424 (1991); Martin v.
Maxey, 98 F.3d 844, 847 (5th Cir. 1996). Morrison bears
the burden of demonstrating the relevant rule was not firmly
established or regularly followed. Hughes v.
Johnson, 191 F.3d 607, 614 (5th Cir. 1999).
matter, the state court found Morrison's claims
procedurally barred based on state rules of criminal
procedure independent of federal law. The state rule on which
the procedural bar was based was an adequate basis for the
court's decision. Accordingly, Morrison's federal
habeas claims were procedurally defaulted in the state
courts. Specifically, Morrison's claims were procedurally
barred by the state court pursuant to Article 11.07 of the
Texas Code of Criminal Procedure. (ECF No. 14-11 at 44). The
rules stated in Article 11.07 have been strictly and
regularly applied and qualify as a procedural bar to federal
review. Busby v. Dretke,359 F.3d 708, 719 (5th ...