OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
GERSHWIN A. DRAIN, United States District Judge.
Harold
Morgan, (“Petitioner”), confined at the Saginaw
Correctional Facility in Freeland, Michigan, filed an
Application for a Writ of Habeas Corpus through counsel
Robert J. Dunn, pursuant to 28 U.S.C. § 2254. Petitioner
challenges his conviction for first-degree premeditated
murder, MICH. COMP. LAWS § 750.316. For the reasons that
follow, the petition for writ of habeas corpus is DENIED.
Petitioner
was convicted following a jury trial in the Montmorency
County Circuit Court. This Court recites verbatim the
relevant facts regarding petitioner's conviction from the
Michigan Court of Appeals's opinion, which are presumed
correct on habeas review pursuant to 28 U.S.C. §
2254(e)(1). See e.g. Wagner v. Smith, 581 F.3d 410,
413 (6th Cir. 2009):
Defendant admits that he killed the victim. The victim is
defendant's grandniece and defendant was friendly with
the victim's live-in boyfriend, Justin Slieff. Slieff
testified that he would provide defendant with marijuana and
that defendant would often borrow money from him. According
to Slieff, defendant's frequent visits to the
couple's home became an issue approximately two months
before the homicide when the victim complained that defendant
was visiting too often. Slieff stated that, although
defendant stayed away from the home for a while, in the two
weeks before the killing, defendant would frequently show up
at the home unannounced when no one was home. Slieff stated
that defendant's behavior caused the victim to become
upset with defendant on several occasions and that the couple
informed defendant that he could only visit if he asked their
permission beforehand.
Then, on the evening of August 23, 2017, Slieff found the
victim unresponsive in their home as a result of a ligature
strangulation and two stab wounds to the chest. Ligature
abrasions on the victim's neck were consistent with being
caused by a shoelace and a broken shoelace was found in the
home, as was a shoe with a missing shoelace. Slieff testified
that the shoe belonged to the victim, but that she never wore
it. According to Slieff, the shoe was in a different place
than the last time he saw it. The victim's dog was locked
in a crate or kennel upstairs, despite neither the victim nor
Slieff ever doing so.
Before trial, the Center of Forensic Psychology evaluated
defendant regarding his competency to stand trial and
criminal responsibility. The evaluators concluded that
defendant was competent to stand trial and that he was not
legally insane when he committed the alleged crime. On June
12, 2018, the trial court entered an order denying defense
counsel's request for a second competency evaluation. On
July 27, 2018, three days before trial, defense counsel filed
a notice of intent to introduce the insanity defense and an
emergency motion requesting an independent
criminal-responsibility evaluation. The trial court, again,
denied defendant's request.
Defendant was charged with open murder. At trial, defendant
testified that, on the day in question, while neither the
victim nor Slieff were in their home, he entered the home and
put the victim's dog in a kennel
upstairs. Defendant testified that, when the victim returned
home, she yelled at him and he “snapped.”
According to defendant, he strangled the victim in a
“rage” and then stabbed her twice with a knife.
Defendant did not know how long he strangled the victim or
where he obtained the knife he used to stab her. Defendant
also testified that he has a history of mental illness.
Defense counsel argued that defendant was guilty of only
voluntary manslaughter, but the jury found defendant guilty
of first-degree murder. This appeal followed the trial
court's imposition of a life sentence without parole.
People v. Morgan, No. 345603, 2020 WL 969146, at * 1
(Mich. Ct. App. Feb. 27, 2020); lv. den. 506 Mich.
891947 N.W.2d 798 (2020).
Petitioner
seeks a writ of habeas corpus on the following grounds:
I. Whether the circuit judge denied defendant appellant his
right to present a defense guaranteed [to] him by the Sixth
Amendment when he refused at timely request for the
appointment of an independent forensic examiner to do a
criminal responsibility evaluation after one had already been
done for the People, or in the alternative, did defense
counsel deny Morgan effective assistance of counsel by
waiting too long to request an expert and not requesting an
instruction on the defense[;]
II. Whether the court of appeals' order of February 8,
2019 denying remand for an independent forensic examination
renders it impossible to know whether trial counsel would
have a real opportunity to prevail on an insanity defense
such that appellate counsel now has no way to establish the
second prong of Strickland necessary for a showing
of ineffective assistance of counsel[;]
III. Whether the circuit judge's failing to grant a
directed verdict of acquittal on first-degree premeditated
murder disregarded clearly established U.S. Supreme Court
authority in Jackson v[.] Virginia[;]
IV. Whether defense counsel deprived his client of his Sixth
Amendment right to the effective assistance of counsel by
conceding guilt to second-degree murder without obtaining his
client's consent
after a letter from the defendant-appellant was admitted into
evidence which included a request for a guilty verdict of
manslaughter.
Title
28 U.S.C. § 2254(d), as amended by The Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), imposes the
following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
A
decision of a state court is “contrary to”
clearly established federal law if the state court arrives at
a conclusion opposite to that reached by the Supreme Court on
a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An “unreasonable
application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner's case.” Id. at 409. A
federal habeas court may not “issue the writ simply
because that court concludes in its independent judgment that
the
relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id.
at 410-11. “[A] state court's determination that a
claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree' on the
correctness of the state court's decision.”
Harrington v. Richter, 562 U.S. 86, 101
(2011)(citing Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). To obtain habeas relief in federal court, a
state prisoner is required to show that the state court's
rejection of his or her claim “was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 103.
A.
Claim # 1. The trial court did not deprive petitioner of due
process or the right to present a defense by refusing to
appoint an independent forensic examiner to conduct a second
criminal responsibility examination.
Petitioner
first argues that his right to due process and his right to
present a defense was infringed when the trial court refused
defense counsel's request to appoint an independent
forensic examiner to conduct a second criminal responsibility
evaluation, after a psychiatrist at the Forensic Center for
Psychiatry had concluded, after conducting a mental
evaluation of petitioner at defense counsel's request,
that petitioner was not insane at the time of the murder.
In
Ake v. Oklahoma, 470 U.S. 68, 83 (1985), the U.S.
Supreme Court held that when an indigent defendant
demonstrates to a trial judge that his or her sanity at the
time of the commission of the offense is to be a significant
factor at trial, the state must assure a criminal defendant
access to a competent psychiatrist who will conduct an
appropriate examination and assist in the evaluation,
preparation, and presentation of the defense.
In the
present case, petitioner was evaluated by a psychiatrist at
the Forensic Center for Psychiatry, who found that petitioner
was competent to stand trial and that he was not insane at
the time of the murder. The trial judge's refusal to
appoint a second expert to evaluate petitioner's
competency and his sanity was not an unreasonable application
of clearly established federal law. “By its own terms
Ake ‘limit[ed] the right [it]
recognize[d]' to ‘provision of one
competent psychiatrist.'” Leavitt v.
Arave, 646 F.3d 605, 610 (9th Cir. 2011)(quoting
Ake, 470 U.S. at 79)(emphasis added). In light of
this “unambiguous language,” the Ninth Circuit
held that a defendant “‘lacks the right to
appointment of a second psychiatrist,' even where the
first psychiatrist...
