United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
HARRIS TOLIVER MAGISTRATE JUDGE
to 28 U.S.C. § 636(b) and Special Order 3, this
case was referred to the United States magistrate judge for
pretrial management, including a recommended disposition of
the petition for writ of habeas corpus brought under 28
U.S.C. § 2254. Upon review, the habeas corpus petition
should be DENIED.
convicted Petitioner Steven Lowell Morton of possessing a
controlled substance and, finding the enhancement allegations
“true, ” sentenced him to 60 years'
imprisonment. State v. Morton, No. F47525 (18th Jud.
Dist. Ct., Johnson Cty., Tex., April. 14, 2014),
aff'd, No. 10-14-00113-CR, (Tex. App.-Waco 2015,
pet. ref'd.). Doc. 21-3. The Texas Court of
Criminal Appeals (TCCA) refused Morton's petition for
discretionary review on March 9, 2016. Morton v.
State, PDR No. 1156-15 (Tex. Crim. App. 2016). Doc.
21-8. On September 27, 2017, the TCCA denied state
habeas relief without written order on the findings of the
trial court. Ex Parte Morton, No. WR-86, 890-1, Doc.
21-24. Subsequently, on October 24, 2017, the TCCA
denied Morton's suggestion for reconsideration. Doc.
timely filed his initial Section 2254 petition in this Court
on September 26, 2017. Doc. 3. He filed an amended
petition on November 9, 2017, Doc. 10, and a second
amended petition on November 15, 2017, Doc. 13.
Morton's first and second amended petitions allege the
same ineffective assistance of trial and appellate counsel
claims. Compare Doc. 13 and Doc.
10. Respondent argues that one of Morton's claims is
unexhausted and procedurally barred, and that his remaining
claims lack merit. Doc. 24. Morton filed a
Motion to Amend petition, Doc. 18, which the Court
has in effect granted, construing it as a supplemental brief,
Doc. 26; Doc. 27. Morton additionally filed a reply.
Trial counsel was ineffective for:
a. Failing to argue at the suppression hearing that the
police had no probable cause under the plain view doctrine to
justify a warrantless search; and
b. Failing to request a jury instruction on no probable cause
under the plain view doctrine to justify a warrantless
Appellate counsel was ineffective for failing to argue that
trial counsel was ineffective for the reasons stated in claim
1(a) and (b), above.
PROCEDURALLY BARRED CLAIMS
Claim 1(b) is Unexhausted and Procedurally-Barred
petitioner must fully exhaust state remedies by fairly
presenting the factual and legal basis of any claim to the
highest state court for review before seeking federal habeas
relief. See 28 U.S.C. § 2254(b);
Johnson v. Cain, 712 F.3d 227, 231 (5th Cir.
2013). A Texas prisoner may satisfy this requirement
by presenting both the factual and legal substance of his
claims to the Texas Court of Criminal Appeals in an
application for a state writ of habeas corpus under Article
11.07 of the Texas Code of Criminal Procedure. Whitehead
v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998). Failure
to exhaust is generally a procedural bar to federal habeas
review, although the federal court may excuse the bar if the
petitioner can demonstrate either cause or prejudice for the
default or that the court's failure to consider the
claims will result in a fundamental miscarriage of justice.
Ries v. Quarterman, 522 F.3d 517, 523-24 (5th Cir.
2008) (citing Coleman v. Thompson, 501 U.S. 722, 750
State argues that Morton failed to exhaust the claim that his
counsel was ineffective for failing to request a jury
instruction pursuant to Texas Code of Criminal Procedure
article 38.23 based on a lack of probable cause under
the plain view doctrine to justify a warrantless search. Doc.
24 at 8. Morton argues that he did present this claim to the
TCCA in his state habeas application and directs the Court to
Ground One of his state habeas application. Doc. 29 at
2. However, a review of the record reveals that Morton
did not properly present that issue in his state habeas
application, Doc. 21-31 at 19-36, or in his memorandum in
support of the state habeas application, Doc. 21-31 at
37-59. While Morton did discuss the issue in the
memorandum, he did so only in support of his second
ground-that his appellate counsel was ineffective
for failing to raise the issue on appeal. See
Id. Because Morton's claim in the instant
federal habeas petition is not substantially equivalent to
the claim presented to the TCCA, it does not meet the
“fairly presented” requirement and is therefore
not properly exhausted. See Whitehead, 157 F.3d at
failure to exhaust state court remedies constitutes a
procedural default that bars this Court from considering his
claim of ineffective assistance of counsel on this ground.
Morris v. Drekte, 413 F.3d 848, 491-92 (5th Cir.
2005); Ries, 522 F.3d at 523-24. Additionally,
Morton has not alleged or demonstrated cause for the default
and actual prejudice, or that a fundamental miscarriage of
justice would occur if the Court were to refuse to consider
his claims. See Coleman, 501 U.S. at 750.
event, the claim has no merit. Morton argues in conclusory
fashion that had his counsel requested a jury instruction
based on the lack of probable cause under the plain view
doctrine to justify a warrantless search, “such an
instruction would have been presented to the jury which in
turn would have rendered a different verdict.” Doc. 11
at 7. Morton contends that his counsel's “failure
here was fatal for the defense and therefore should be
afforded no deference and [his] conviction reversed.”
Id. at 15. Despite his allegations, however, Morton
has failed to demonstrate that had the instruction been
requested, the trial court would have given it. He has also
failed to show that if the instruction had been given, there
is a reasonably possibility that the outcome of his trial
would have been different; to-wit: that he would not have
been convicted. Consequently, Morton has failed to
demonstrate that trial counsel was ineffective on this
ground. See Strickland v. Washington, 466 U.S. 668,
694 (1984) (stating that to demonstrate ineffective
assistance of counsel a petitioner must show that
“there is a reasonable probability that, but for