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Morton v. Davis

United States District Court, N.D. Texas, Dallas Division

January 30, 2019

STEVEN LOWELL MORTON, #1924241, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Div., Respondent.

          FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          RENEE HARRIS TOLIVER MAGISTRATE JUDGE

         Pursuant 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.

         I. BACKGROUND

         A jury 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. 21-29.

         Morton 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. Doc. 29.

         Morton asserts:

         1. 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 search.

         2. Appellate counsel was ineffective for failing to argue that trial counsel was ineffective for the reasons stated in claim 1(a) and (b), above.

         II. PROCEDURALLY BARRED CLAIMS

         A. Claim 1(b) is Unexhausted and Procedurally-Barred

         A 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 (1991)).

         The 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 387.

         Morton's 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.

         In any 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 ‚Äúthere is a reasonable probability that, but for ...


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