United States District Court, W.D. Tennessee, Eastern Division
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
DANIEL BREEN UNITED STATES DISTRICT JUDGE
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.
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.
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).
THE COA STANDARD
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).
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.
RELEVANT PROCEDURAL HISTORY
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.)
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).) 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.
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.
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
• object to jury instructions regarding reasonable
• 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.)
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).
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.) See Morris v. Carpenter, 802 F.3d
825, 844 (6th Cir. 2015).
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.)
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.)
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.
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
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.
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) &
• 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)
• 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