Morris v. Secretary, Department of Corrections (Hillsborough County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DONTAE R. MORRIS,

Petitioner,

v. Case No. 8:21-cv-1393-MSS-AAS

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________/

O R D E R

Morris petitions for a writ of habeas corpus under 28 U.S.C. § 2254 and challenges his

two convictions for first-degree murder for which the state court sentenced him to death.

(Doc. 1) An earlier order directed the Respondent to address in separate responses the

following issues in the following order: (1) the timeliness of the petition, (2) whether any claim

is unexhausted, procedurally barred, or not cognizable on federal habeas, and (3) the merits

of the claims. (Doc. 7 at 1) The Respondent conceded that the petition is timely but moved to

dismiss several grounds as either unexhausted, procedurally barred, or not cognizable on

federal habeas. (Doc. 12) The Court granted-in-part and denied-in-part the Respondent’s

motion. (Doc. 16) Morris moves under Rule 60(b), Federal Rules of Civil Procedure, for

reconsideration of the dismissal of Ground Four as procedurally barred. (Doc. 18) The

Respondent files a response. (Doc. 19)

Because Rule 60(b) permits a district court to grant relief “from a final judgment, order,

or proceeding,” and the Court’s order dismissing Ground Four is a non-final order, Rule 60(b)

does not apply. However, a district court may reconsider an interlocutory order at any time

before entry of the final judgment. Harper v. Lawrence Cty., Ala., 592 F.3d 1227, 1231 (11th Cir.

2010) (“It is permissible for a district court to rescind its own interlocutory order.”). See also

Fed. R. Civ. P. 54(b) (“[A]ny order or other decision, however designated, that adjudicates

fewer than all the claims or the rights and liabilities of fewer than all the parties does not end

the action as to any of the claims or parties and may be revised at any time before the entry

of a judgment adjudicating all the claims and all the parties’ rights and liabilities.”).

In Ground Four of his federal petition, Morris asserts that he was “denied the

opportunity to fully present his cognizable, facially sufficient Brady v. Maryland claim at an

evidentiary hearing in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to

the United States Constitution.” (Doc. 1 at 24) He contends that the state court’s “decision

denying [his] right to a hearing and allowing the denial of [his] rights to remain unremedied

were contrary to, or involved an unreasonable application of, clearly established federal law,

as determined by the Supreme Court of the United States, or resulted in a decision that was

based on an unreasonable determination of facts . . . .” (Doc. 1 at 24)

Morris alleges that the prosecutor violated Brady by failing to disclose to the defense a

video recording of a jail visit between Morris and his mother on November 10, 2011. (Doc. 1

at 25–26) He contends that the video recording contains the only evidence that he suffered

from mental illness before trial. (Doc. 1 at 26) A mental health expert, who testified at trial,

reviewed the video recording and changed his diagnosis of Morris from temporary psychosis

and manic depression to schizophrenia. (Doc. 1 at 26) At trial, the prosecutor introduced

evidence proving that, while in jail, Morris said, “I repent for killing.” (Doc. 1 at 27) Morris

contends that trial counsel could have used the video recording depicting that he suffered from

mental illness while in jail to demonstrate that he did not knowingly make this statement.

(Doc. 1 at 27) He asserts that admission of the video recording would have changed the

outcome of the guilt and penalty phases at trial. (Doc. 1 at 26–27)

During state post-conviction proceedings, after discovering notes by the prosecutor

describing the video recording, post-conviction counsel requested a copy of the video

recording from the prosecutor’s office, and a records custodian certified that he could not

locate the video recording in the office’s file. (Doc. 1 at 25) An investigator, who worked for

post-conviction counsel, discovered the video recording mis-labeled with the wrong date in

the police department’s file. (Doc. 1 at 25) Morris contends: “It is still unknown because a full

hearing has not occurred whether or not this working version of the November 10, 2011, jail

visit video saved as the November 24th video in [the police department’s] files was ever

disclosed to defense counsel.” (Doc. 1 at 25) He asserts that he is entitled to an evidentiary

hearing because “[a] material question of fact exists as to whether the State suppressed this

[November 10, 2011] jail visit video and whether the State properly ‘disclosed’ this

information in working form to the defense as required by Brady.” (Doc. 8 at 34–35)

The Court’s earlier order dismissed the claim as not cognizable on federal habeas and

procedurally barred (Doc. 16 at 12–14):

Morris asserts that the post-conviction court erred by not

granting him an evidentiary hearing on his claim that the

prosecutor violated Brady v. Maryland, 373 U.S. 83 (1963), by not

disclosing to the defense an exculpatory video. (Doc. 1 at 24–27)

In Morris, 317 So. 3d at 1071–72, the state supreme court denied

the claim as follows:

. . . Morris claims that the post-conviction court

erred by summarily denying as procedurally

barred his claim that the prosecution withheld a

working video of the November 10, 2011, jail visit

in violation of Brady v. Maryland, 373 U.S. 83

(1963). We disagree and affirm the trial court’s

denial of relief.

“An evidentiary hearing must be held on an initial

3.851 motion whenever the movant makes a

facially sufficient claim that requires a factual

determination.” Matthews v. State, 288 So. 3d 1050,

1060 (Fla. 2019). “A court may summarily deny a

post-conviction claim when the claim is legally

insufficient, procedurally barred, or refuted by the

record.” Id.

First, as the post-conviction court accurately

noted, the existence of the November 10 video was

known to the defense team prior to trial, so the

claim is procedurally barred. A Brady claim is

procedurally barred if the defense knew of the

evidence prior to trial and could have addressed

the discovery issue then. See Jimenez v. State, 265

So. 3d 462, 481–82 (Fla. 2018) (rejecting a Brady

claim as procedurally barred where defendant had

knowledge of a pre-deposition interview because

it was mentioned in discovery materials and

because defense counsel acknowledged the

interview during trial). Both parties acknowledge

that the State provided Morris with notice of six

jail visitation videos in an amended notice of

discovery filed in April 2012 but that these videos

were unable to be downloaded or viewed due to a

technical issue. The defense should have

addressed these issues before trial or during trial

through a Richardson5 hearing for discovery

violations. And in fact, as alleged by Morris in his

original motion, trial counsel appears to have

acknowledged the non-working videos during trial

preparation. Accordingly, Morris’s Brady claim is

now procedurally barred.

5 Richardson v. State, 246 So. 2d 771 (Fla.

1971).

Further, even if Morris’s claim was not

procedurally barred, it is facially insufficient under

Brady. “To establish a Brady violation, the

defendant has the burden to show that: (1) the

evidence was either exculpatory or impeaching;

(2) the evidence was willfully or inadvertently

suppressed by the State; and (3) because the

evidence was material, the defendant was

prejudiced.” Davis v. State, 136 So. 3d 1169, 1184

(Fla. 2014). However, “[t]here is no Brady

violation where the information is equally

accessible to the defense and the prosecution, or

where the defense either had the information or

could have obtained it through the exercise of

reasonable diligence.” Peede v. State, 955 So. 2d

480, 497 (Fla. 2007) (quoting Provenzano v. State,

616 So. 2d 428, 430 (Fla. 1993)). Morris’s motion

alleges that defense counsel had notice of the

existence of the jail visit videos and knew that they

were unable to view the videos. Reasonable

diligence would seem to require that defense

counsel seek to obtain a working copy of the video

after learning that they were unable to download

the video. Accordingly, this claim is without

merit, and we affirm the post-conviction court’s

summary denial of relief.

The Respondent asserts that the claim is not cognizable on

federal habeas and that the claim is procedurally barred because

the state court’s denial of the claim rested on a state procedural

ground. (Doc. 12 at 24–25) Morris responds and characterizes

the claim as asserting that the post-conviction court’s denial of

an evidentiary hearing on the Brady claim violated his federal

right to due process. (Doc. 15 at 6–8)

“Under [the Eleventh Circuit’s] precedent, [a] claim that the state

court violated [a petitioner’s] due process rights by failing to

conduct an evidentiary hearing under Florida Rule of Criminal

Procedure 3.850 and 3.851 on [a] post-conviction [ ] claim does

not state a claim on which [the court] may grant habeas relief.”

Carroll v. Sec’y, Dep’t Corrs., 574 F.3d 1354, 1366 (11th Cir. 2009).

Because “it is ‘beyond debate’ that a state court’s failure to

conduct an evidentiary hearing on a post-conviction motion does

not constitute a cognizable claim for habeas relief,” this Court

cannot review Morris’s claim. Carroll, 574 F.3d at 1365.

Even if the claim is cognizable on federal habeas, the claim is

procedurally barred. The state supreme court denied the claim

because Morris could have raised the claim before trial. Morris,

317 So. 3d at 1071. Fla. R. Crim. P. 3.851(e)(1) (“This rule does

not authorize relief based upon claims that could have or should

have been raised at trial and, if properly preserved, on direct

appeal of the judgment and sentence.”). Even though the state

supreme court alternatively considered the merits of the claim,

the ruling firmly rests on an independent and adequate state

procedural ground. Harris, 489 U.S. at 264 n.10. LeCroy v. Sec’y,

Fla. Dep’t Corrs., 421 F.3d 1237, 1260 n.25 (11th Cir. 2005) (“This

Court has already concluded that the procedural requirements of

Florida’s Rule 3.850 constitute independent and adequate state

grounds under the applicable law.”) (citing Whiddon v. Dugger,

894 F.2d 1266, 1267–68 (11th Cir. 1990)). Because Morris fails

to demonstrate either cause and actual prejudice or a miscarriage

of justice to excuse the procedural bar, the claim is barred from

federal review. Maples, 565 U.S. at 280; House, 547 U.S. at

536–37. Accordingly, the Respondent’s motion to dismiss

Ground Four is GRANTED.

In his motion for reconsideration, Morris asserts that this Court erroneously

determined that the Brady claim is procedurally barred. (Doc. 18 at 6–8) He contends that the

state supreme court’s ruling denying the claim as procedurally barred unreasonably applies

Brady, unreasonably determines facts, and misapplies the state rule governing discovery.

(Doc. 18 at 5–15) He further asserts that this Court erroneously deprives him of review by

refusing to address the merits of the claim. (Doc. 18 at 15–23)

Morris incorrectly relies on the “unreasonable application” standard in Section

2254(d) to challenge the state supreme court’s denial of the Brady claim as procedurally

barred. Section 2254(d) applies to a state court’s adjudication of a claim on the merits.

28 U.S.C. § 2254(d)(1) (stating a federal habeas petition “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 — 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”) (emphasis added).

“Federal courts are barred from reaching the merits of a state prisoner’s federal habeas

claim where the petitioner has failed to comply with an independent and adequate state

procedural rule.” Siebert v. Allen, 455 F.3d 1269, 1271 (11th Cir. 2006)(emphasis added).

“When a state court correctly applies a procedural default principle of state law, federal courts

must abide by the state court decision, but only if the state procedural rule is regularly

followed.” Siebert, 455 F.3d at 1271 (citations omitted). When a state court incorrectly applies

a state procedural rule, a federal habeas court may disregard the state procedural bar and

review the merits of the claim. Brown v. Sec’y, Dep’t Corrs., 200 F. App’x 885, 887 (11th Cir.

2006)1 (holding that “[procedural] grounds relied upon by the state court are inadequate[ if]

they are based on an incorrect application of state procedural default law”).

The state rule of procedure governing capital collateral relief prohibits post-

conviction review of “claims that could have or should have been raised at trial and, if

properly preserved, on direct appeal of the judgment and sentence.” Fla. R. Crim. P.

3.851(e)(1). The state supreme court applies this procedural bar to a Brady claim. See State

v. Riechmann, 777 So. 2d 342, 363 (Fla. 2000) (“Riechmann’s [Brady] claim on this issue, as

it relates to the guilt phase, is procedurally barred because he could and should have raised

it on direct appeal, since by trial’s end he was aware of the statements.”).

In his motion for reconsideration, Morris contends that he could not have raised the

Brady claim on direct appeal because he first discovered on post-conviction that a records

custodian at the prosecutor’s office could not locate the video recording of the visit between

Morris and his mother on November 11, 2011, that the police department retained a copy

1 11th Cir. R. 36-2 (“Unpublished opinions are not considered binding precedent, but they

may be cited as persuasive authority.”).

of the video recording but mislabeled the computer file that contained the video recording,

and that no evidence proves that the prosecutor disclosed the video recording to the defense

before trial. (Doc. 18 at 4, 9–11)

However, the record demonstrates that the prosecutor possessed the video recording

and disclosed to trial counsel the existence of the video recording before trial. With

reasonable diligence, trial counsel could have reviewed all discovery materials that the

prosecutor delivered to the defense before trial and discovered whether the prosecutor also

delivered a working copy of the video recording. If the prosecutor did not deliver a working

copy of the video recording, trial counsel could have moved to compel disclosure of the

video. If the trial court denied the motion to compel, Morris could have argued on appeal

that the prosecutor’s violation of the rule governing discovery procedurally prejudiced his

defense. See State v. Schopp, 653 So. 2d 1016 (Fla. 1995).

In an amended discovery notice filed on April 16, 2012, the prosecutor disclosed to

the defense the existence of the video recording of the jail visit on November 10, 2011 (Doc.

13-3 at 102) (bolding added):

1. SIX (6) DVD’S TITLED AS FOLLOWS:

A. JAIL VISIT 11/10/11

B. JAIL VISIT 11/23/11

C. JAIL VISIT 11/28/11

D. JAIL VISIT 12/6/11

E. JAIL VISIT 12/19/11

F. JAIL VISIT 1/30/12

In a competency evaluation report filed on May 18, 2012, a year-and-a-half before

trial, a forensic psychologist described the six videos disclosed in the discovery notice (Doc.

13-3 at 105):

I also reviewed, in preparation for the examination, a total of

six DVDs provided by Assistant State Attorney Scott Harmon,

which were reported to [contain] video visitation between the

defendant and family members.

In a written response, trial counsel acknowledged that he read the letter and knew

that the prosecutor had disclosed the video recordings to the forensic psychologist (Doc.

13-3 at 109): “I do note from your letter that you did have communications with the State

and received videos and other materials from them.”

In a competency evaluation report filed on May 18, 2012, a second forensic

psychiatrist identified the video recording of the jail visit on November 10, 2011 as a source

of information for his report (Doc. 13-3 at 119):

Audio and video recordings of the defendant’s jail visits dated

November 10, November 23, November 28, December 6 and

December 19, 2011 and January 30, 2012. On November 10,

2011, the defendant received a visit from a female. The audio

portion of the recording was not decipherable.

Also, the report described the circumstances surrounding the visit (Doc. 13-3 at 123):

No further problems were reported until November 10, 2011,

when [Morris] was placed in restraints following a visit from his

mother. He complained of deputies trying to kill him. After he

was evaluated by jail mental health staff the impression was

malingering and antisocial personality disorder. He was placed

on direct observation status.

On January 25, 2013, the trial court held a pre-trial hearing on the defense’s motion

to exclude incriminating statements by Morris while in jail. (Doc. 13-10 at 34–79) During a

direct examination of an employee at the prosecutor’s office, the prosecutor asked about the

content of the video recordings of the visits between Morris and his mother in jail in late

October and early November of 2011, and trial counsel interjected that the prosecutor had

not provided the video recordings (Doc. 13-10 at 61–63) (bolding added):

[Prosecutor:] Ms. Blevins, are you employed by the

State Attorney’s Office?

[Witness:] Yes, I am.

[Prosecutor:] And in late October, early November

2011, were you reviewing video

visitations that Mr. Morris had with his

mother and his grandmother?

[Witness:] Yes.

[Prosecutor:] In those video visitations did you observe

conversations he had with his mother and

his grandmother concerning spirituality

and Christianity?

[Witness:] Yes, I did.

[Trial counsel:] Your Honor, excuse me for interrupting,

and I’m rising simply to inquire because

we don’t recall having received or seen

any copies of videos or reports of

observations of videos of that type, and

I’m inquiring. If I’m in error about that,

then please correct me. But if we haven’t,

I’m in no position to try to cross-examine

this witness on materials that have not

been revealed to us.

[Court:] I’m not quite sure what you are saying.

Are you saying you don’t have them?

[Trial counsel:] To the best of our knowledge, Judge, I

can’t say that with one-hundred percent

certainty. And I’m asking the State

because neither of us remember seeing,

hearing, and we have looked at

everything.

[Court:] Mr. Harmon, are these reproduced?

[Prosecutor:] Let me ask Ms. Blevins. Apparently, we

didn’t give those to the defense.

[Court:] You did what?

[Prosecutor:] We did not give those to the defense.

[Court:] Okay. So what’s your objection?

[Trial counsel:] My objection is we have no way to

effectively cross-examine the witness.

[Court:] I’ll sustain the objection. I’ll consider this

another time, if need be.

In an amended discovery notice filed on February 15, 2013, the prosecutor disclosed

over 150 DVDs that contained video recordings of visitations at the jail. (Doc. 13-3 at

132–33) During a deposition of a psychologist on February 19, 2013, trial counsel

acknowledged that he received the earlier discovery notice, filed on April 16, 2012,

disclosing the existence of the video recordings of the visits in November of 2011 (Doc.

13-3 at 187–89):

[Prosecutor:] Okay. Did you have, did you have any

conversations with his mother concerning

his spiritual state during the time period of

early November, late October?

[Witness:] No.

[Prosecutor:] And you haven’t seen any of the video

visitations between her — he and his

mother during that time period?

[Witness:] I have not.

[Prosecutor:] No.

[Trial counsel:] And Scott, just for the record, we received

a notice of discovery on those dated 2/15.

They were picked up today, so neither Dr.

McClaine nor myself have seen them. Mr.

Nelson has just e-mailed me that some of

them were inaccessible because of some

kind of program problem, so in any case,

just for the record, we have not had those

until today for her to review.

[Prosecutor:] Well, for the record, we noticed you all

before the Arthur hearing of many of those

videotaped visitations that occurred. The

ones — I’m sorry. We noticed you before

the competency issue, when the

competency issue came up in November

of 2011. Remember I put that in my letter

to you that we, we gave you discovery

notice of several of the videotaped

visitations that were occurring around

early November 2011 and late October, so

they were available and discovered to you

then, so I just want to make sure the

record’s clear about that.

[Trial counsel:] Well, I, I agree with you; you did do that,

but there’s an expanded version of that

dated 2/15 —

[Prosecutor:] Right.

[Trial counsel:] — including a lot more materials, and we

had not received the discs in the earlier —

[Prosecutor:] Right.

[Trial counsel:] — discovery.

[Prosecutor:] Right, and those, yeah, I think the

majority of those were — are outside that

time period, though, but well, whatever.

[Trial counsel:] Right. Okay. I’m sorry.

Rule 3.220(b)(1)(C), Florida Rules of Criminal Procedure, required the prosecutor to

disclose the existence of the video recording because the video recording contained

statements by Morris to his mother:

Within fifteen days after service of the notice of discovery, the

prosecutor shall serve a written discovery exhibit which shall

disclose to the defendant and permit the defendant to inspect,

copy, test, and photograph the following information and

material within the state’s possession or control . . .: any written

or recorded statements and the substance of any oral statements

made by the defendant, including a copy of any statements

contained in police reports or report summaries, together with

the name and address of each witness to the statements[.]

See also Jones v. State, 32 So. 3d 706, 710 (Fla. 4th DCA 2010) (“The prosecutor has a duty

to disclose in discovery ‘any written or recorded statements and the substance of any oral

statements made by the defendant.’ This duty ‘extends to a defendant’s statements made to

a witness who is not an agent of the state.’”) (citations omitted).

After the prosecutor disclosed the existence of the video recording of the visit on

November 10, 2011, trial counsel had the duty to request that the prosecutor permit the

defense to inspect and copy the video recording. Durrance v. State, 44 So. 3d 217, 221 (Fla.

4th DCA 2010) (“[T]he state fulfilled its obligation under the rule by disclosing the trial

testimony in its supplemental response to defendant’s request for discovery. The defendant

has the burden of inspecting and copying the trial testimony.”); Denny v. State, 404 So. 2d

824, 825 (Fla. 1st DCA 1981) (“It is undisputed that the existence of the photographs (or

negatives) was properly disclosed long before trial and that they were continuously available

for inspection or copying by the defense. However, the defense attorney never contacted the

prosecutor to exercise his right to copy or inspect.”) (citation omitted).

If the trial prosecutor refused to provide trial counsel a working copy of the video

recording to inspect and copy, Morris could have moved to compel disclosure of the video

recording. If the trial court denied Morris’s motion to compel, Morris could have argued on

direct appeal that the trial court erroneously denied the motion. Powell v. State, 912 So. 2d

698, 702 (Fla. 2d DCA 2005) (reversing on direct appeal because the prosecutor violated the

rule governing discovery by failing to disclose statements by the defendant). On appeal, the

prosecutor has the burden to demonstrate that a discovery violation is harmless. Powell, 912

So. 2d at 701 (“[I]t is the State’s burden to establish that a discovery violation is harmless

error.”). Schopp, 653 So. 2d at 1020–21, requires the prosecutor to demonstrate a lack of

procedural prejudice:

In determining whether a Richardson violation is harmless, the

appellate court must consider whether there is a reasonable

possibility that the discovery violation procedurally prejudiced

the defense. As used in this context, the defense is procedurally

prejudiced if there is a reasonable possibility that the

defendant’s trial preparation or strategy would have been

materially different had the violation not occurred. Trial

preparation or strategy should be considered materially

different if it reasonably could have benefited the defendant. In

making this determination every conceivable course of action

must be considered. If the reviewing court finds that there is a

reasonable possibility that the discovery violation prejudiced

the defense or if the record is insufficient to determine that the

defense was not materially affected, the error must be

considered harmful. In other words, only if the appellate court

can say beyond a reasonable doubt that the defense was not

procedurally prejudiced by the discovery violation can the error

be considered harmless.

Morris could have argued on direct appeal that the prosecutor’s failure to disclose a working

copy of the video recording procedurally prejudiced the defense because he would have used

the recording to impeach his incriminating statement in jail. See Palmes v. State, 397 So. 2d

648, 653 (Fla. 1981).2

Because trial counsel could have moved to compel the disclosure of the video

recording of the jail visit on November 11, 2010 before trial, and argued on direct appeal

that the trial court erroneously denied the motion to compel, the post-conviction court did

2 After the trial court ruled admissible the incriminating statement by Morris in jail, “I repent

for killing,” trial counsel moved to admit evidence, including the video recordings of the jail

visits, to rebut the voluntariness of Morris’s statement. (Doc. 13-10 at 87–90)

not incorrectly apply the state procedural default rule to bar the Brady claim on

post-conviction. Fla. R. Crim. P. 3.851(e)(1). Riechmann, 777 So. 2d at 363. See also Rhodes

v. State, 986 So. 2d 501, 507 (Fla. 2008). United States v. Agurs, 427 U.S. 97, 103 (1976)

(holding that Brady applies to “the discovery, after trial, of information which had been

known to the prosecution but unknown to the defense.”) (bolding added).

In his motion for reconsideration, Morris argues that this Court has a duty to

independently review the merits of the Brady claim because the state supreme court

adjudicated the claim on the merits. (Doc. 18 at 15–16) He argues that, because the state

supreme court alternatively reached the merits of the Brady claim, this Court may ignore the

procedural default and also reach the merits of the claim. (Doc. 23)

However, a federal court may disregard a state procedural bar only if a higher state

court ignores a lower state court’s imposition of a procedural bar and addresses only the

merits of a claim. Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (“State procedural bars are

not immortal, however; they may expire because of later actions by state courts. If the last

state court to be presented with a particular federal claim reaches the merits, it removes any

bar to federal-court review that might otherwise have been available.”) (citing Harris v. Reed,

489 U.S. 255, 262 (1989)).

In Morris’s case, the state supreme court did not ignore the post-conviction court’s

imposition of the procedural bar. The state supreme court instead ruled that the Brady claim

was procedurally barred and alternatively ruled on the merits. Morris, 317 So. 3d at 1071

(“[E]ven if Morris’s claim was not procedurally barred, it is facially insufficient under

Brady.”). Harris, 489 U.S. at 264 n.10 (citation omitted), clarified that a state court’s ruling

firmly rests on a procedural bar, even if the state court alternatively reaches the merits:

Moreover, a state court need not fear reaching the merits of a

federal claim in an alternative holding. By its very definition,

the adequate and independent state ground doctrine requires

the federal court to honor a state holding that is a sufficient basis

for the state court’s judgment, even when the state court also

relies on federal law.

Because the state supreme court did not ignore the state procedural bar by alternatively ruling

on the merits, this Court cannot disregard the procedural bar. Alderman v. Zant, 22 F.3d 1541,

1549 (11th Cir. 1994) (“[W]here a state court has ruled in the alternative, addressing both the

independent state procedural ground and the merits of the federal claim, the federal court

should apply the state procedural bar and decline to reach the merits of the claim.”).

Lastly, in his motion for reconsideration, Morris argues that the earlier order deprives

him of “any available State corrective process to allow presentation of his fully exhausted,

substantive Brady claim.” (Doc. 18 at 23) A petitioner must exhaust his remedies in state court

unless “there is an absence of available State corrective process” or “circumstances exist that

render such process ineffective to protect the rights of the applicant.” 28 U.S.C.

§ 2254(b)(1)(A)(i), (ii). Because Morris technically exhausted the Brady claim in state court,

lack of exhaustion does not bar federal review of the claim. Coleman v. Thompson, 501 U.S.

722, 731–32 (1991) (“A habeas petitioner who has defaulted his federal claims in state court

meets the technical requirements for exhaustion; there are no state remedies any longer

‘available’ to him.”). Instead, the state court’s denial of the Brady claim on an independent

and adequate state procedural ground bars review. Coleman, 501 U.S. at 750.

Also, the earlier order does not entirely deprive Morris review of his claim. In Ground

2(g) of his federal petition, Morris asserts that trial counsel was “deficient for failing to obtain

a working version of the November 10, 2011, jail visit video, which contained incredibly

probative mental health evidence.” (Doc. 1 at 8, 14-16) The Respondent does not assert a

procedural defense to the ineffective assistance of counsel claim (Doc. 22 at 103-06), and this

Court will review the merits of the claim. See Taylor v. State, 62 So. 3d 1101, 1116 (Fla. 2011)

(“[B]ecause Taylor ultimately asserts a discovery violation before trial, this claim should have

been raised [ | during trial, not in a postconviction motion pursuant to Brady... . The only

cognizable claim here, therefore, is that trial counsel was ineffective for failing to request a

Richardson hearing on the alleged discovery violation.”) (citations omitted).

Because Morris fails to demonstrate that the earlier order erroneously dismissed

Ground Four, his motion for reconsideration (Doc. 18) is DENIED.

DONE AND ORDERED in Tampa, Florida on September 7, 2023,

UNITED STATES DISTRICT JUDGE

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