United States District Court, N.D. Alabama, Eastern Division
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
petition for writ of habeas corpus, Kenneth Leon Morrow
challenges his December 14, 2011 criminal conviction for
capital murder. In 2011, the Circuit Court of Talladega
County accepted a guilty plea from Mr. Morrow and sentenced
him to life without parole. (Doc. 1, p. 2).
after Mr. Morrow filed his habeas petition in 2015, the
magistrate judge ordered Mr. Morrow to explain why the Court
should not summarily dismiss his petition. (Doc. 8). Mr.
Morrow did not file a response. He also did not request
additional time in which to respond.
14, 2018, the magistrate judge filed his report and
recommendation. (Doc. 9). The magistrate judge recommended
denying Mr. Morrow's petition and dismissing it with
prejudice. (Doc. 9, p. 24). The magistrate judge gave Mr.
Morrow notice of his right to object. (Doc. 9, pp. 24-25).
Mr. Morrow received an extension of time (Doc. 11) and timely
objected on July 9, 2018. (Doc. 12).
STANDARD OF REVIEW
district court “may accept, reject, or modify, in whole
or part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C). When
a party objects to a report and recommendation, the district
court must “make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.”
Id. A district court reviews for plain error
proposed factual findings to which no objection is made, and
a district court reviews propositions of law de
novo. Garvey v. Vaughn, 993 F.2d 776, 779 n.9
(11th Cir. 1993); see also United States v. Slay,
714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam), cert.
denied, 464 U.S. 1050 (1984) (“The failure to
object to the magistrate's findings of fact prohibits an
attack on appeal of the factual findings adopted by the
district court except on grounds of plain error or manifest
injustice.”) (internal citation omitted); Macort v.
Prem, Inc., 208 Fed.Appx. 781, 784 (11th Cir. 2006).
objections, Mr. Morrow asserts that the state court, the
state prosecutor, and his counsel misled him about the range
of punishment for capital murder (Doc. 12, p. 1) and that his
“mental state before pleading guilty caused him to
plead guilty to something [he] didn't understand.”
(Doc. 12, p. 2). Mr. Morrow also raises ineffective
assistance of trial and appellate counsel. (Doc. 12, pp.
Mr. Morrow's contention about being misled, the
magistrate judge thoroughly explained why “[t]he
conclusion reached by the state courts that [Mr.
Morrow]'s guilty plea was knowing and voluntary is well
supported and due deference.” (Doc. 9, p. 11). Mr.
Morrow's generalized objection does not undermine this
Morrow's objection about his ineffective trial counsel
claim also is unpersuasive. The magistrate judge set forth
the proper framework for analyzing such a claim and discussed
why this Court must give deference to the Alabama Court of
Criminal Appeal's review of this issue. (Doc. 9, pp.
Morrow argues that the magistrate judge's procedural
default analysis is flawed concerning his (Mr. Morrow's)
claim that his appellate attorney was ineffective. (Doc. 12,
p. 4). Mr. Morrow contends that although he raised the claim
in his state Rule 32 petition, he never received a
merits-based ruling. (Doc. 12, p. 4). The magistrate judge
correctly found that during Mr. Morrow's Rule 32 petition
hearing, Mr. Morrow did not offer evidence to support this
appellate counsel claim. (Doc. 9, p. 18). Consequently, Mr.
Morrow abandoned it. (Doc. 9, p. 18). Mr. Morrow's
objection does not refute this finding. See Judd v.
Haley, 250 F.3d 1308, 1313 (11th Cir. 2001) (“A
state prisoner seeking federal habeas relief cannot raise a
federal constitutional claim in federal court unless he first
properly raised the issue in the state courts.”)
(citing Wainwright v. Sykes, 433 U.S. 72, 87
objections, Mr. Morrow points out that he “has a below
average I.Q. with language and comprehension
disabilities” and that his “understanding of the
plea was (0) zero.” (Doc. 12, p. 2). Mr. Morrow argues
that the trial court “should have been aware of [his]
below average intelligence, and psychological problems just
by [Mr.] Morrow's demeanor” and “should
ha[ve] ordered a[n] independent competency hearing”
sua sponte. (Doc. 12, p. 2).
Morrow does not include below average intelligence as a
ground for habeas relief. (Doc. 1, pp. 8-14). Mr. Morrow does
not mention his I.Q. or his inability to understand the plea
proceedings in his Rule 32 petition. (Doc. 7-16, pp. 9-21).
In his Rule 32 petition, Mr. Morrow does refer to competency,
but the reference concerns his competency at the time of the
burglary that gave rise to the capital murder charge against
him: “The mere probability that Petitioner was
competent to stand trial says nothing about his (Mr.
Morrow's) mental status at the time the crime was
commit[t]ed.” (Doc. 7-16, p. 19). In his Rule 32
petition, Mr. Morrow argues that his attorney should have
challenged portions of a psychological evaluation report
relating to Mr. Morrow's mental competency at the time of
the underlying incident. (Doc. 7-16, p. 19); see
Ala. R. Crim. P. 11.3 (c)(1) (“Any psychiatrist or
psychologist appointed by the court . . . shall submit to the
circuit judge a report containing an opinion of whether the
defendant is ‘incompetent,' as that term is defined
in Rule 11.1.”). Mr. Morrow argues that, given
statements made by the crisis negotiator on the day of the
underlying incident, his trial counsel should have realized
that Mr. Morrow was contemplating suicide despite denying
that question during the psychological evaluation. (Doc.
7-16, p. 19). These arguments do not implicate Mr.
Morrow's I.Q. or his ability to understand the plea
proceedings in the state case.
Mr. Morrow did not address his low I.Q. in the Rule 32
petition (Doc. 7-16, pp. 9-21) and appears never to have
presented that issue to the state courts, that claim is