United States District Court, M.D. Alabama, Eastern Division
DECKRICE L. MORRISSEY, #178022, Petitioner,
BOBBY BARRETT, et al., Respondents.
RECOMMENDATION OF THE MAGISTRATE JUDGE
F. MOORER UNITED STATES MAGISTRATE JUDGE.
Deckrice L. Morrissey (“Morrissey”), an inmate of
the Alabama Department of Corrections, filed this petition
for habeas corpus relief pursuant to 28 U.S.C. § 2254,
challenging her conviction and sentence in the Circuit Court
for Lee County, Alabama, for shooting into an occupied
vehicle. Doc. 1. For the following reasons, the court
recommends that the petition be denied and the case dismissed
because Morrissey's § 2254 claims are procedurally
defaulted without excuse and cannot be reviewed.
was convicted of discharging a firearm into an occupied
vehicle and sentenced to twenty-five years in prison as a
habitual offender. Doc. 9-6 at 2. She appealed, arguing
“the verdict was against the great weight of the
evidence.” Id. at 3. The Alabama Court of
Criminal Appeals affirmed the judgment. Id. at 4.
Further review was denied, and a certificate of judgment
issued on June 25, 2014. Doc. 9-7.
sought post conviction relief under Alabama Rule of Criminal
Procedure 32. Doc. 9-8 at 6-28. The Circuit Court denied
Morrissey's Rule 32 petition. Id. at 40-42.
Morrissey appealed. Doc. 9-11. The Alabama Court of Criminal
Appeals determined that Morrissey waived or abandoned all of
her claims on appeal. Id. at 4-6. Because it is
relevant to the procedural default of Morrissey's §
2254 claims, this court quotes at length from the decision of
the Court of Criminal Appeals. It first described
Morrissey's original Rule 32 petition claims:
petition, Morrissey alleged:
(1) That her trial counsel was ineffective for calling
Natasha Webb to testify on her behalf that Webb had heard the
victim state that the victim had “framed”
Morrissey for the crime in order to send Morrissey to prison
(C. 13), for not presenting evidence from the victim's
page on Facebook, a social-networking website, showing the
victim holding a gun, and for not calling Brittany Powell to
testify “that no gunshots were heard at the time
alleged” (C. 21);
(2) That her trial counsel was ineffective for moving to
withdraw from representing her without first filing a motion
for a new trial “that protect[ed] [Morrissey's]
rights” (C. 13) protect[ed] [Morrissey's]
rights” (C. 13);
(3) That her trial counsel was ineffective for not objecting
to State's witnesses Kenyani Tolbert and Benjamin Canada
using their cellular telephones while testifying;
(4) That the prosecutor committed misconduct when the
prosecutor informed the trial court that during a recess
juror no. 11 approached him and asked what the difference was
between shooting into an occupied vehicle and attempted
murder and that her trial counsel was ineffective for not
objecting to this conduct even though the juror was removed
and replaced with an alternate because, she said,
“[t]here is no way of knowing what influence this one
juror had over the jury” (C. 15);
(5) That she was denied due process because, she said, law
enforcement did not conduct a proper investigation;
specifically, she argued that she was never questioned by
police, her home was never searched, and “she was never
tested by forensics for gun powder/residue” (C. 16);
(6) That newly discovered material facts entitled her to a
new trial and that her trial counsel was ineffective for not
discovering these facts and presenting them at trial;
specifically, she argued that a “Google Map
description” establishes that the victim could not have
driven from the scene of the shooting to the location where
she called and met police in the 7-8 minute time frame the
victim provided but that it would have taken longer. (C. 17.)
Morrissey attached to her petition an affidavit from Natasha
Webb dated September 12, 2013, the police incident report
regarding the shooting, a letter from Brittany Powell dated
October 18, 2012, a printout from Google maps, and a printout
of a page from the victim's page on Facebook.
Doc. 9-11 at 3-4; see also Doc. 9-8 at 14-28.
Morrissey's Rule 32 claims are nearly identical to the
claims she raises in her § 2254 petition.
Compare Doc. 9-8 at 14-28 with Doc. 1 at
Court of Criminal Appeals then compared Morrissey's
initial Rule 32 claims with the only claim listed in her Rule
32 appellate brief. Doc. 9-11 at 4. The only issue listed in
the appellate brief was as follows: “Ms.
Morrissey's conviction for shooting into an occupied
vehicle is due to be rendered and reversed because the
jury's verdict is contrary to the great weight of the
evidence presented at trial and due to unrefuted facts, and
ineffective counseling.” Doc. 9-9 at 7, Doc. 9-11 at 4.
The Court of Criminal Appeals explained that Morrissey did
not raise the weight of the evidence in her Rule 32 petition.
Doc. 9-11 at 4. Following Alabama state law, it ruled:
It is well settled that “[a]n appellant cannot raise an
issue on appeal from the denial of a Rule 32 petition which
was not raised in the Rule 32 petition.” Arrington
v. State, 716 So.2d 237, 239 (Ala.Crim.App.1997).
Because Morrissey did not challenge the weight of the
evidence in her petition, that issue is not properly before
this Court for review and will not be considered.
Doc. 9-11 at 4-5.
Court of Criminal Appeals acknowledged that, in the statement
of facts in Morrissey's appellate brief, “Morrissey
briefly mentions claims (1), (2), and (6), as set out
above.” Doc. 9-11 at 5. It went on to determine that
the argument portion of her brief did not match her Rule ...