Morris v. Dretke

• Citation: 379 F.3d 199
• Decision Date: 21 July 2004
• Docket Number: No. 04-70004.,04-70004.
• Parties: Kenneth Wayne MORRIS, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

379 F.3d 199

Kenneth Wayne MORRIS, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 04-70004.

United States Court of Appeals, Fifth Circuit.

July 21, 2004.

COPYRIGHT MATERIAL OMITTED

Michael B. Charlton, Law Office of Michael B. Charlton, Alvin, TX, Gerald James Bierbaum, Houston, TX, for Petitioner-Appellant.

Deni S. Garcia, Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, DeMOSS and DENNIS, Circuit Judges.

DeMOSS, Circuit Judge:

Petitioner Kenneth Wayne Morris ("Morris"), a Texas inmate sentenced to die for the crime of capital murder, seeks a certificate of appealability ("COA") from this Court on two issues. First, Morris seeks review of whether the presentation of a factually stronger habeas claim always mandates a dismissal without prejudice based on the exhaustion principle. Second, Morris seeks review of whether the district court has any equitable remedy that would permit him to both return to state court for exhaustion and also protect his right to return to federal court after the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") statute of limitations, 28 U.S.C. § 2244(d)(1)(C), has expired.¹ This Court finds the district court's exhaustion ruling debatable and thus grants Morris's request for issuance of a COA on that issue. We dismiss Morris's petition for COA on the issue of an available equitable remedy; that issue is not ripe for review at this time because the district court has not actually granted Morris any equitable remedy.

BACKGROUND

In December 1993 Morris was convicted and sentenced to death for the capital offense of murdering James Moody Adams. On direct appeal, the Texas Court of Criminal Appeals affirmed Morris's conviction and sentence; the Supreme Court of the United States denied certiorari. The Texas Court of Criminal Appeals ("TCCA") then denied Morris's application for writ of habeas corpus. In April 2000 Morris initiated federal habeas proceedings. The district court denied Morris habeas relief and denied him a COA. This Court also denied Morris a COA. Morris did not seek certiorari review in the Supreme Court. Texas set an execution date of April 15, 2003.

On June 20, 2002, the Supreme Court held that the Eighth Amendment protects against the execution of mentally retarded defendants. Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). On April 10, 2003, within ten months after Atkins was decided, Morris filed a successive application for writ of habeas corpus in state district court, claiming that Atkins barred his execution because he suffered from mental retardation. Morris supported his claim of retardation with affidavits from family members and friends; notes from a mental health expert appointed for his trial; partial school records; and an affidavit from psychologist Dr. Richard Garnett who offered his professional opinion that there were "sufficient indicators to suggest that Morris has mental retardation, and should be allowed the opportunity for a full assessment and evaluation." The TCCA dismissed Morris's successive state habeas application as an abuse of the writ on April 14, 2003.

On April 15, 2003, Morris filed a request with this Court for authorization to file a successive federal habeas petition. Morris based his request on the same information he presented in the state courts. This Court stayed Morris's execution and tentatively granted his motion to file a successive petition. We held that Morris had made a prima facie showing that: (1) the claim to be presented in the proposed successive habeas application had not been previously presented in any prior application to this Court; (2) such claim relied on a previously unavailable new rule of constitutional law, which had been made retroactive to cases on collateral review by the Supreme Court; and (3) he should be categorized as mentally retarded. In re Morris, 328 F.3d 739, 740-41 (5th Cir.2003). Our authorization for Morris to file his successive habeas petition was tentative in that it was dependent on the district court finding that AEDPA's requirements for such filing had been met. Id. at 741 (citing 28 U.S.C. § 2244(b)(4)).

On April 28, 2003, Morris moved the district court for appointment of counsel and approval of the retention of expert and investigative assistance; the court granted this motion on May 20, 2003. Morris then filed a skeletal petition for writ of habeas corpus in federal district court on May 30, 2003, which he amended on July 7, 2003, with consent of the district court. This petition raised the sole issue of whether Atkins' constitutional bar against execution of the mentally retarded applied to Morris. In addition to the evidence previously presented in the state courts and the Fifth Circuit, Morris presented other evidence supporting his retardation claim to the district court, including an affidavit from clinical psychologist Dr. Susana A. Rosin who recently tested Morris's I.Q. and level of functioning and diagnosed him with mental retardation; a second affidavit from Dr. Rosin which refuted Respondent's claim that Morris was malingering during the testing; a new affidavit from Dr. Garnett opining that his review of Dr. Rosin's findings strengthens his opinion that Morris is mentally retarded and recommending that a court hold a full hearing into the retardation issue; two affidavits from James R. Patton, who holds a doctorate in special education and disabilities, opining that Morris functions intellectually and adaptively within the mentally retarded range and that this condition predated his 18th birthday; affidavits from Morris's original trial counsel stating that they never asked their mental health expert to test Morris for mental retardation; a document purportedly signed by Jerome Brown, a mental health expert appointed to assist with trial preparation, stating that he performed no formal intellectual testing of Morris in connection with his evaluation; and another document purportedly signed by Dr. Garnett reconfirming his diagnosis of Morris as mentally retarded.

The district court denied Respondent's motion to dismiss and accepted Morris's successive federal petition under 28 U.S.C. § 2244(b); denied Respondent's motion for summary judgment; and dismissed Morris's amended petition without prejudice in an order entered December 5, 2003. In that order the district court determined that because Morris had not presented his Atkins claim to the state courts in its current state — supported with "substantive evidence" — the state courts did not have a fair opportunity to apply Atkins to the substance of Morris's now better documented habeas claim. Therefore, Morris had not exhausted his Atkins claim. See 28 U.S.C.A. § 2254(b)(1)(A) (West 2004). The district court indicated, however, that it would equitably toll the time Morris will have spent in federal court should he return after having exhausted any available state court remedies. On January 7, 2003, the district court entered an order denying Morris's motion to alter or amend judgment under Rule 59(e), or alternatively for the issuance of a COA. Morris then noticed his appeal and filed a request for COA with this Court.

DISCUSSION

Morris filed his Section 2254 petition for a writ of habeas corpus after the effective date of AEDPA. Therefore, his petition is subject to the procedures imposed by AEDPA; Morris's right to appeal is governed by the COA requirements of § 2253(c).See Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

Under AEDPA, a petitioner must obtain a COA before an appeal can be taken to this Court. 28 U.S.C.A. § 2253(c) (West 2004); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ("[U]ntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners."). When a habeas petitioner requests permission to seek appellate review of the dismissal of his petition, this Court limits its examination to a "threshold inquiry into the underlying merit of his claims." Miller-El, 537 U.S. at 327, 123 S.Ct. 1029.

A COA will be granted if the petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C.A. § 2253(c)(2) (West 2004). Meeting this standard requires a petitioner to demonstrate that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotations and citation omitted). "[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail." Id. at 338, 123 S.Ct. 1029.

When the district court denies a petitioner's petition on procedural grounds without reaching the underlying constitutional claim, a COA should issue if the petitioner demonstrates both that reasonable jurists would find it debatable whether the district court was correct in its procedural ruling and that reasonable jurists would find it debatable whether the petition states a valid claim of the denial of a constitutional right. Slack, 529 U.S. at 478, 120 S.Ct. 1595. Here, because this case involves the death penalty, "any doubts as to whether a COA should issue must be resolved in [Morris's] favor." Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000).

Whether a COA should issue on the district court's finding that Morris had not exhausted his Atkins claim in the state courts.

Section 2254 provides that habeas relief shall not be granted on unexhausted claims. 28 U.S.C.A. § 2254(b)(1)(A) (West 2004)...