Morris v. Dormire

• Decision Date: 14 April 2000
• Docket Number: No. 99-2904,99-2904
• Parties: (8th Cir. 2000) DANNY MORRIS, APPELLANT, v. DAVE DORMIRE, APPELLEE. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 556

217 F.3d 556 (8th Cir. 2000)

DANNY MORRIS, APPELLANT, v. DAVE DORMIRE, APPELLEE.

No. 99-2904

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: April 14, 2000

Filed: July 3, 2000

Appeal from the United States District Court for the Eastern District of Missouri. [Copyrighted Material Omitted] Before Richard S. Arnold, Ross, and Morris Sheppard Arnold, Circuit Judges.

Ross, Circuit Judge.

Danny Morris, a Missouri inmate, appeals from the district court's¹ judgment denying his petition for a writ of habeas corpus filed under 28 U.S.C. 2254. We affirm.

Morris was convicted of first-degree murder and sentenced to life without parole. After a hearing, Morris's motion for post-conviction relief under Mo. S. Ct. R. 29.15 was denied. In a combined appeal, the state court affirmed his conviction and the denial of the Rule 29.15 motion, which raised ineffective-assistance-of-counsel claims. State v. Morris, 844 S.W.2d 549 (Mo. Ct. App. 1992). On direct appeal, the court rejected Morris's argument that there was insufficient evidence of deliberation and causation, noting Sandra Triblett testified that about 1:30 a.m. she saw Morris behind a caf, aim a gun, fire a shot that felled Alvin Jackson, and then leave "without checking on Jackson's condition or seeking assistance for him." Id. at 551. The court also noted that Dorothy Jackson, who was unrelated to the victim, testified that she met Phinezy Johnson and Morris after the shooting and Morris told her "he had shot Alvin Jackson in the head." Id.

In 1997 Morris filed a timely 2254 habeas corpus petition. The state responded that the claims were either unexhausted, defaulted, or without merit. Morris sought leave to file an amended petition and requested appointment of counsel. The court denied his request for counsel, but granted leave to file an amended petition. In the amended petition, Morris raised claims regarding the sufficiency of the evidence, ineffective assistance of counsel, and actual innocence. He also raised a conflict-of-interest claim based on a pre-trial altercation he had had with his counsel.

The district court denied the petition, holding, among other things, that the state court's resolution of Morris's sufficiency-of-the-evidence and ineffective-assistance claims was not contrary to federal law, his conflict-of-interest claim was defaulted, and he had not established actual innocence to excuse the default. The court granted a certificate of appealability (COA) on the sufficiency, conflict, and innocence claims. See Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000) (COA needed for claims decided on the merits and for claims dismissed on procedural grounds).

On appeal Morris initially argues that the district court abused its discretion in denying his motion for appointment of counsel, "an issue that does not require a certificate of appealability." Roney v. United States, 205 F.3d 1061, 1062 (8th Cir. 2000). Morris concedes, with an exception not relevant here, see 28 U.S.C. 2261, "there is neither a constitutional nor statutory right to counsel in habeas proceedings; instead, it is committed to the discretion of the trial court." McCall v. Benson, 114 F.3d 754, 756 (8th Cir. 1997). In deciding whether to appoint counsel, the district court considered "the factual and legal complexity of the case and the petitioner's ability both to investigate and to articulate his claims without court appointed counsel." Id. In addition, in response to this court's inquiry at oral argument, Morris could not identify any arguably meritorious issues that appointed counsel could have raised. Based on our review of the record, the district court did not abuse its discretion in denying Morris's request for counsel.

Morris next argues that the district court erred in denying relief on his sufficiency-of-the-evidence claim. The court did not err. Morris has not demonstrated that the state court's resolution of the issue is contrary to or involves an unreasonable application of federal law or an unreasonable determination of the facts as presented to the state court, as 28 U.S.C. 2254(d) requires. See Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000).

Nor did the court err in holding Morris's conflict-of-interest claim, which he now characterizes as a variation of an ineffective-assistance-of-counsel claim, was defaulted. As the state notes, we have rejected the argument that "a petitioner who presents to the state courts a broad claim of ineffectiveness as well as some specific ineffectiveness claims properly presented all conceivable specific variations for purposes of federal habeas review." Flieger v. Delo, 16 F.3d 878, 885 (8th Cir.), cert. denied, 513 U.S. 946 (1994). Although the state appellate court mentioned the altercation in its discussion of the facts, it did not further discuss the matter, which is not surprising since Morris failed to raise a legal issue about the altercation. It is well-established "that a habeas petitioner must have raised both the factual and legal bases for each ineffectiveness of counsel claim in the state courts in order to preserve the claim for federal review." Id.

We also reject Morris's argument that he presented new and reliable evidence of actual innocence to excuse the default. In support of his claim, he relies on testimony presented at the Rule 29.15 hearing. At the hearing, a ballistics expert testified that the victim was shot from about ten feet away, which was less than the apparent fifty-foot distance Triblett had indicated during cross-examination on a diagram of the crime scene. In addition, Renee Davis testified that...