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Morris v. Westbrooks

United States District Court, W.D. Tennessee, Eastern Division

May 18, 2017

FARRIS GENNER MORRIS, Petitioner,
v.
BRUCE WESTBROOKS, Warden, Riverbend Maximum Security Institution, Respondent.

          ORDER DENYING APPLICATION FOR A CERTIFICATE OF APPEALABILITY, CERTIFYING THAT AN APPEAL WOULD NOT BE IN GOOD FAITH, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          J. DANIEL BREEN UNITED STATES DISTRICT JUDGE

         On April 5, 2017, Petitioner, Farris Genner Morris, through counsel, filed an application for a certificate of appealability (“COA”). (Electronic Case Filing (“ECF”) No. 87.) Respondent has not filed a response, and the time period for doing so has expired.

         Morris asserts that he is entitled to a COA on claims that are debatable among reasonable jurists and that deserve encouragement to proceed further based on:

a) The grants of certiorari in Davila v. Davis, [137 S.Ct. 810 (2017)], and Wilson v. Sellers, 137 S.Ct. 1203 (2017);
b) The Supreme Court's decision in Buck v. Davis, 137 S.Ct. 759 (2017), which Morris contends condemns racism in capital cases; and
c) The fact that his claims have never received the application of Martinez v. Ryan, 566 U.S. 1 (2012).

(ECF No. 87 at PageID 6587.) Petitioner insists that a COA should be granted on all his claims, but the Court “should certainly grant” a COA on claims in paragraphs 9(K) of the amended petition incorporating 21(B-D); 9(L); 9(M); 9(N) incorporating 24; 9(P) incorporating 27; 10(A-D); 11(B); 11(D) incorporating 26(B); 11(F) incorporating 18; 11(G); 11(H) incorporating 9(L), 9(M), 19, 21(A-D), 26(A), and 29(L); 24; 27; and 29(L). (Id.)

         I. THE COA STANDARD

         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 (2003); Bradley v. Birkett, 156 F.App'x 771, 772 (6th Cir. 2005) (per curiam). The Court must issue or deny a COA when it enters a final order adverse to a § 2254 petitioner. Rule 11, Rules Governing § 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 were adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336 (internal quotation marks omitted); see Buck, 137 S.Ct. at 773 (a COA “is not coextensive with a merits analysis [and] should be decided without ‘full consideration of the factual or legal bases adduced in support of the claims'”); see also Henley v. Bell, 308 F.App'x 989, 990 (6th Cir. 2009) (per curiam) (same). A COA does not require a showing that the appeal will succeed, Miller-El, 537 U.S. at 337; Caldwell v. Lewis, 414 F.App'x 809, 814-15 (6th Cir. 2011); however, courts should not issue a COA as a matter of course, Bradley, 156 F.App'x at 773.

         II. RELEVANT PROCEDURAL HISTORY

         On April 26, 2007, Morris filed a pro se petition pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Through counsel, he amended the petition on January 11, 2008. (ECF No. 12.) On September 29, 2011, the Court determined that Petitioner was denied the effective assistance of counsel at sentencing and granted the petition in part. (ECF No. 58 at PageID 1124.) The Court denied a COA because “[t]here can be no question that the remaining claims that were dismissed are either without merit or barred by procedural default.” (Id. at PageID 1125-26.)

         The parties appealed. (ECF Nos. 62 & 63.) On March 1, 2012, Morris filed an application for a COA on his guilt-phase habeas claims, particularly the guilt-phase ineffective assistance of counsel claims. (Case No. 11-6322, Doc. No. 30 (6th Cir. Mar. 1, 2012).)[1] He stated that his habeas petition was the first opportunity to present the procedurally defaulted ineffective assistance of counsel claims and that the Sixth Circuit “should await the Supreme Court's decision in Martinez before determining whether Petitioner's claims are defaulted.” (Id. at 26-30.)

         Martinez was decided on March 20, 2012, while the application for a COA was pending. On September 13, 2012, the Sixth Circuit granted in part and denied in part Morris's application for a COA (Doc. No. 41-2), stating that

[t]he case will proceed on the Warden's appeal and on Morris's claim that his trial counsel were ineffective in the guilt phase for failing to investigate and present a state-of-mind defense to the charge of first-degree intentional, deliberate, premeditated murder. Morris has waived consideration of his other guilt-phase claims by failing to argue them in his COA application.

(Id.)

         On July 24, 2013, the inmate filed a motion to remand the case to the district court based on Trevino v. Thaler, 133 S.Ct. 1911 (2013), which had been decided two months earlier on May 28, 2013. (Doc. No. 65-1.) Morris sought remand to determine cause and prejudice for the default of his ineffective assistance of trial counsel claims related to counsel's failure to:

• object to jury instructions regarding reasonable doubt;
• challenge race and gender discrimination in the selection of the grand jury foreperson; and
• raise a Brady [v. Maryland, 373 U.S. 83 (1963)] claim about the State's pre-trial consultation with its expert witness O. C. Smith.

(Id. at 1, 8-10.) Respondent argued that two of the three claims were not raised in the petition; that Martinez and Trevino were not timely raised as to the other claim; and that Morris's ineffective assistance claims are not substantial. (Doc. No. 71 at 1-2, 19.) On October 30, 2013, the Sixth Circuit denied the motion to remand. (Doc. No. 82-2.)

         While Morris's appeal was pending, the Sixth Circuit held “that ineffective assistance of post-conviction counsel can establish cause to excuse a Tennessee defendant's procedural default of a substantial claim of ineffective assistance at trial” under Martinez and Trevino. Sutton v. Carpenter, 745 F.3d 787, 795-96 (6th Cir. 2014).

         On September 23, 2015, the Sixth Circuit affirmed the denial of Morris's guilt-phase ineffectiveness claims, vacated the grant of habeas relief for the sentencing-phase ineffective assistance claims, and remanded the case “for a denial of the writ in accordance with this decision.” (Doc. No. 126-2 at 26.)[2] See Morris v. Carpenter, 802 F.3d 825, 844 (6th Cir. 2015).

         The Sixth Circuit denied en banc rehearing. (Doc. No. 133.) The United States Supreme Court denied the petition for writ of certiorari on October 4, 2016. (Doc. No. 136.)

         The Sixth Circuit issued a mandate on October 4, 2016. (ECF No. 74.) Consistent with that mandate, this Court denied the petition, and a judgment was entered on October 12, 2016. (ECF No. 75 at PageID 6401; see ECF No. 76 at Page ID 6402.) The Court denied Morris's motion to alter or amend the judgment on March 13, 2017. (ECF No. 85.)

         III. ANALYSIS

         The Court first addresses the relevant law of the case as it relates to Petitioner's request for a COA and notes that the Sixth Circuit previously considered waived all of his guilt-phase claims except for ineffective assistance of counsel for failing to investigate and present a state-of-mind defense to the first degree murder charge and denied remand based on Martinez. The one guilt-phase claim that the Sixth Circuit considered was denied on the merits. Morris, 802 F.3d at 842.

         “[F]indings made at one point in the litigation become the law of the case for subsequent stages of that same litigation.” Moore v. Mitchell, 848 F.3d 774, 776 (6th Cir. 2017) (quoting United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994)), reh'g en banc denied (May 3, 2017). “The law of the case doctrine is not an inexorable command but is directed to a court's common sense.” Id. (internal quotation marks omitted). The Sixth Circuit has stated three reasons to reconsider a ruling in lieu of relying on the law of the case: (1) where substantially different evidence is raised on subsequent trial; (2) where a subsequent contrary view of the law is decided by the controlling authority; or (3) where a decision is clearly erroneous and would work a manifest injustice.” Id.

         In Wheeler v. Simpson, 852 F.3d 509, 513 (6th Cir. 2017), reh'g denied (Apr. 12, 2017), the Sixth Circuit stated that its previous decision on the petitioner's guilt-phase claims and the Supreme Court‘s denial of the certiorari petition was the law of the case and refused to revisit those claims. See Cadogan v. Renico, Civil No. 04-CV-71761-DT, 2008 WL 3979496, at *2 (E.D. Mich. Aug. 25, 2008) (“Given that the Sixth Circuit has already dismissed petitioner's prior appeals or has declined to issue a certificate of appealability from this Court's prior decisions, the law of the case doctrine prevents this Court from issuing a certificate of appealability in this case.”). Similarly, in the instant case, the Sixth Circuit has ruled on the claims presented and certiorari has been denied. The appellate court's specific denial of a COA amounts to a holding that this Court's decision on the particular issue is not debatable among reasonable jurists. Likewise, the Sixth Circuit's express denial of relief establishes the law of the case. Therefore, the Court will determine whether Morris has articulated an argument that controlling authority presents a subsequent contrary view of the law and that the decision is clearly erroneous and would work a manifest injustice in determining whether the issues presented are debatable among reasonable jurists or deserve encouragement to proceed further.

         A. Davila

         Morris contends that, based on the grant of certiorari in Davila, he is entitled to a COA on the following ineffective assistance claims for appellate counsel's failure to state claims about:

• the State's systematic racial use of peremptory challenges (Am. Pet. ¶ 11(B));
• the State's improper closing argument in the sentencing phase (Am. Pet. ¶¶ 11(D) & 26(B))[3];
• the removal for cause of jurors that were qualified to serve under Wainwright v. Witt (Am. Pet. ¶¶ 11(F) & 18); . the admission of the medical examiner's testimony at the sentencing phase (Am. Pet. ¶11(G));
• trial counsel's failure to strike Juror Atkins (Am. Pet. ¶¶ 11(H) & 9(L));
• trial counsel's failure to strike Juror Bowman (Am. Pet. ¶¶ 11(H) & 9(M));
• trial counsel's failure to remove jurors who admitted prejudices and biases against the defendant that prohibited their impartiality (Am. Pet. ¶¶ 11(H) & 19);
• the jury instructions at the guilt and sentencing phases of trial which were unconstitutional, relieved the prosecution of its burden of proof, and led to the arbitrary infliction of the death sentence through the reasonable doubt jury instruction (Am. Pet. ¶¶ 11(H) & 21(A));
• the jury instructions on intent (Am. Pet. ¶¶ 11(H) & 21(B));
• at the guilt phase, the jury instruction to determine whether Morris was “capable of premeditation” when the proper constitutional inquiry was whether he actually ...

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