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Morrissey v. Barrett

United States District Court, M.D. Alabama, Eastern Division

February 5, 2018

DECKRICE L. MORRISSEY, #178022, Petitioner,
v.
BOBBY BARRETT, et al., Respondents.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE.

         Petitioner 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.

         I. PROCEDURAL HISTORY

         Morrissey 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.

         Morrissey 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:

         In her 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); and
(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 7-22.

         The 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.

         The 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 ...


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