Morgan v. Brookhart
| Decision Date | 08 March 2023 |
| Docket Number | 22 C 2330 |
| Parties | Jeryme Morgan R-29175, Petitioner, v. Dee Dee Brookhart, Warden, Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
Petitioner Jeryme Morgan, a prisoner at Lawrence Correctional Center petitions this court for a writ of habeas corpus under 28 U.S.C. § 2254. Challenging his 2009 Cook County convictions for aggravated criminal sexual assault, robbery and kidnapping, he claims his due process rights were violated because the DNA evidence was insufficient to prove his guilt beyond a reasonable doubt, and his trial attorney was constitutionally ineffective for failing to object to the admission of other-crimes evidence and related limiting instruction. Respondent contends this court cannot reach the merits of the petition because Morgan's claims are both untimely and procedurally defaulted. As explained below, the court agrees. The § 2254 petition is therefore denied and the court declines to issue a certificate of appealability.
A. Morgan's Trial
Following a 2009 jury trial, Morgan was convicted of three counts of aggravated criminal sexual assault, and one count each of robbery and kidnapping. People v. Morgan, 2012 IL App (1st) 093388-U, ¶ 2.
His convictions stemmed from a 2007 sexual assault on M.H. in the parking lot of her apartment complex. Id. at ¶ 3. M.H. testified that she was walking toward the entrance of her building when a man, whom she later identified as Morgan, grabbed her around the neck, placed a gun to her head, and pulled her into the backseat of a “tealish color” SUV. Id. at ¶ 4. Morgan got in the backseat with M.H. and sexually assaulted her, vaginally and anally. Id. M.H. struggled to escape, but Morgan repeatedly hit her in the head with his gun and bit her neck, causing her to bleed. Id. Morgan also forced M.H. to perform oral sex at gunpoint. Id.
M.H. testified that after the sexual assault, Morgan returned to the front seat of the SUV and demanded her credit cards, ATM card, and keys. Id. at ¶ 5. He then drove to an ATM, ordered her to give him her pin number, and withdrew money from her account. Id. Before he let her go, he held her at gunpoint and demanded her cellphone. Id. He then drove away. Id. M.H. ran to a store across the street and the police were contacted. Id. She described her assailant to the police as a black male, about five foot seven inches tall, with a “corn rows” hairstyle. Id. She later identified Morgan in a physical lineup. People v. Morgan, 2020 IL App (1st) 171331-U, ¶ 9. At trial, M.H. identified a photo of Morgan's SUV and the gun he used during the attack. Morgan, 2012 IL App (1st) 093388-U, ¶ 5.
The State called Maricel Marcial and Monica Solek to testify regarding an incident involving Morgan that occurred nine days after he sexually assaulted M.H. Id. at ¶¶ 6-9. Their testimony was introduced as admissible other-crimes evidence to show Morgan's identity, intent, and modus operandi. Id. at ¶ 3. The trial court gave a limiting instruction to that effect before each witness's testimony and prior to deliberations. Id. at ¶¶ 6, 8, 10.
Marcial testified that she parked her car in her building's parking garage and was walking toward the door when she was approached by Morgan who put a gun to her head, pulled her to the ground by her hair, and dragged her around the corner. Id. at ¶ 8. Solek was in the parking garage at the time, and Marcial noticed Morgan looking in Solek's direction. Id. at ¶ 9. Upon seeing Solek, Morgan instructed Marcial to open up the garage door at which time he “broke away” and entered a dark green SUV. Id. Marcial described Morgan and his vehicle to the police, and identified him from a lineup. Morgan, 2020 IL App (1st) 171331-U, ¶ 12. At trial, she identified the same vehicle and gun that M.H. identified Morgan had used during the sexual assault. Morgan, 2012 IL App (1st) 093388-U, ¶ 9. Solek similarly testified that she observed an armed, black male with corn rows assault Marcial. Id. at ¶¶ 6-7. She also identified the same gun identified by M.H. Id. at ¶ 7.
Illinois State Police forensic scientist, Blake Aper, testified regarding the autosomal DNA analysis he performed on a blood stain found in the backseat of Morgan's SUV. Morgan, 2020 IL App (1st) 171331-U, ¶ 13. In autosomal analysis, Aper explained, a DNA sample is genetically typed at 13 different locations to create a DNA profile which can then be used for comparison purposes. Id. Aper determined that 11 of the 13 loci from the blood stain matched M.H.'s DNA profile, which meant she could not be excluded as having contributed the female DNA. Id.
From a statistical analysis perspective as to who could be excluded as a contributor as far as the general population was concerned, Aper explained that “[a]pproximately [one] 200 trillion black, one in 2.9 trillion white, or one in five trillion Hispanic unrelated individuals could not be excluded from having contributed to the sample.” Id. Aper stated that these numbers come from the “same numbers that the FBI [Federal Bureau of Investigation] uses for their statistical calculator,” explaining that “what [the FBI] did was they sampled a number, a couple hundred people in the population, and typed them to determine the frequencies that the types occur in the population.” Id. at ¶ 14.
The jury found Morgan guilty on all counts of aggravated criminal sexual assault, kidnapping, and robbery. Id. at ¶ 15. He was sentenced to an aggregate prison term of 52 years. Id. B. Morgan's Direct Appeal
Morgan appealed his convictions, arguing the trial court erred by admitting the evidence of other crimes to show intent and modus operandi, and by providing an overly broad jury instruction that failed to limit the use of the other-crimes evidence to its relevant purpose. (Dkt. 13-4, p. 22-31.) He also challenged the calculation of various pecuniary penalties that were imposed. Id. at 32-42. The state appellate court modified the assessment of certain fines and fees, but affirmed the judgment in all other respects, holding that Morgan forfeited his jury instruction claim by failing to object to it at trial or raise it in a posttrial motion, and that there was no error in the admission of other-crimes evidence. Morgan, 2012 IL App (1st) 093388-U, ¶¶ 13, 17, 22.
In October 2012, Morgan wrote to the clerk's office regarding the status of his petition for rehearing that he had filed following his direct appeal. (Dkt. 13-7, p. 3, 20-21.) He was advised that his petition for rehearing was denied in May of that year. Id. at 21-22. Morgan then sought leave to file a late petition for leave to appeal (PLA). Id. at 3-4. His PLA reraised the alleged errors made by the trial court in admitting the other-crimes evidence and providing an overly broad limiting instruction. Id. at 7. He also claimed appellate counsel was ineffective for failing to argue the trial court erred in denying him a continuance to further investigate the DNA evidence. Id.
The Illinois Supreme Court accepted Morgan's untimely PLA, and then denied it. People v. Morgan, 39 N.E.3d 565 (Table).
C. Morgan's Postconviction Proceedings
On November 26, 2013, Morgan mailed to the state trial court a pro se postconviction petition. (Dkt. 13-9, p. 1.) His petition asserted several grounds of ineffective assistance of trial counsel, including counsel's failure to properly investigate the DNA test results or hire a DNA expert, and counsel's failure to object to and preserve for appeal the issue of the trial court's other-crimes evidence limiting instruction. (Dkt. 13-9, p. 6-7.) He also alleged that the State violated Brady v. Maryland, 373 U.S. 83 (1963), and used perjured testimony at trial, that the police's identification procedures were impermissibly suggestive, and that the trial court erred in denying him a continuance to allow further investigation into the DNA evidence. (Dkt. 13-9, p. 7-8.)
At a status hearing on the petition in April of 2016, postconviction counsel, who had been appointed to represent Morgan, advised the trial court that she was investigating his claims regarding the DNA evidence and whether an amendment to the petition was warranted based on “some of the current practices in the forensic DNA community.” Morgan, 2020 IL App (1st) 171331-U, ¶ 17. Counsel explained that “[t]he FBI released a couple months ago that their CPI [combined probability of inclusion] statistics were flawed” as to the rarity of genotype frequencies in the general population, and that “it has now become somewhat of a complicated issue as to [the] legal significance ... on the statistical models that the FBI was [previously] using.” Id. Upon completing her investigation, counsel filed an Illinois Supreme Court Rule 651(c) certificate, stating she was “unable to supplement the pro se petition with affidavits, or independent scientific evidence,” and that the petition adequately presented Morgan's claims. (Dkt. 13-10, p. 1-2); see also Ill. Sup. Ct. R. 651(c) ().
The State filed a motion to dismiss the postconviction petition (Dkt. 13-11), which the trial court granted. (Dkt. 13-12, p. 2-8.) Morgan appealed the dismissal and, with the assistance of postconviction appellate counsel, raised one claim: that he was denied reasonable assistance of postconviction counsel due to his attorney's failure to amend the petition to reflect the “flawed” FBI statistics discussed at the April 2016 status hearing. (Dkt. 13-13, p. 1-20.) “[B]y focusing exclusively on the issue of postconviction counsel's reasonableness,” t...
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