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Morrison v. Davis

United States District Court, W.D. Texas, San Antonio Division

June 1, 2018

JAMES DAVIS MORRISON, TDCJ
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          DAVID A. EZRA SENIOR UNITED STATES DISTRICT JUDGE.

         James 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.

         I. Background

         A grand 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.

         Morrison 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).

         Movant 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).

         In his 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.[1] (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.

         II. Analysis

         A. Exhaustion and procedural default

         "[A]bsent 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).

         A state 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).

         In this 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 ...


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