The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
JOSHUA MORRISSETTE,
Petitioner, : Case No. 1:19-cv-912
- vs - District Judge Matthew W. McFarland
Magistrate Judge Michael R. Merz
WARDEN,
Lebanon Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This habeas corpus case, brought pro se by Petitioner Joshua Morrissette under 28 U.S.C.
§ 2254, is before the Court for decision on the merits. Relevant filings are the Petition (ECF No.
1), the State Court Record (ECF No. 6), and the Return of Writ (ECF No. 7). Although Magistrate
Judge Litkovitz set a date for Petitioner to file a reply (ECF No. 4, PageID 18), he has never done
so, despite requesting and receiving two extensions of time (ECF Nos. 9 through 12).
Litigation History
On October 13, 2016, a Hamilton County Grand Jury indicted Petitioner on one count of
aggravated murder in violation of Ohio Revised Code § 2903.01(A)); two counts of murder in
violation of Ohio Revised Code § 2903.02 (A) and (B)); one count of felonious assault in violation
of Ohio Revised Code § 2903.11(A)(1)), with two firearm specifications on each count; one count
of having weapons while under disability in violation of Ohio Revised Code § 2923.13(A)(3));
one count of aggravated possession of drugs in violation of Ohio Revised Code § 2925.11(A)),
including a firearm specification; one count of possession of cocaine in violation of Ohio Revised
Code § 2925.11 (A)), including a firearm specification; and another count of having weapons while
under disability in violation of Ohio Revised Code § 2923.13(A)(3)), including two forfeiture
specifications (Indictment, Case No. B-1605788, ECF No. 6, Ex. 1, PageID 23-29). The trial jury
acquitted Morrissette on the aggravated murder charge, but convicted him on the other counts.
After merging some of the counts under Ohio Revised Code § 2941.25, the trial judge sentenced
Morrissette to an aggregate sentence of twenty-seven years to life imprisonment.
On direct appeal the Ohio First District Court of Appeals affirmed the conviction and
sentence. State v. Morrissette, 2018-Ohio-3917 (Ohio App. 1st Dist. Sept. 28, 2018), appellate
jurisdiction declined, 2018-Ohio-52019 (2018). Petitioner then timely filed the instant habeas
corpus petition pro se, pleading the following Grounds for Relief:
Ground One: Mr. Morrissette[‘s] conviction was contrary to the
manifest weight of the evidence and insufficient to support a
conviction.
Supporting Facts: The state's case in chief suffered from two
critical defects that renderd [sic] it unconvincing: the lack of
tangible, physical evidence placing the gun in Joshua's hand, and the
credibility issues attendant to each witness that the state produce[d]
to testify agaisnt [sic] him at trial, thus violating Morrissette's due
process right, when insufficient evidence was produced to sustain a
conviction.
Ground Two: The State committed multiple instances of
prosecutorial misconduct by presenting improper arguments to the
jury during its closing statement, and by repeatedly referring to Mr.
Morrissette as “Psycho” throughout its case in chief violating his
right to due process and a fair trial.
Supporting Facts: The state committed multiple instances of
misconduct during Joshua's trial; they broadly entail two distinct
categories: improper arguments made durin [sic] the state's closing
statement, and repeated references to Joshua as "psycho" throughout
the course of the trial. Comment on the supposed insanity defense
punishment perhaps the most egregious of the improper arguments
made by the state during closing statements were the repeated
reference to Joshua's alleged attempt to feign insanity.
Ground Three: The trial court erred by instructing the jury on flight
as evidence of Mr. Morrissette’s guilt for having committed the
offense of murder.
Supporting Facts: Due process was violated when Morrissette was
exposed to a erroroneous [sic] instruction that violated his
substantial right to a fair trial.
Ground Four: Mr. Morrissette was deprived of his constitutional
right to the effective assistance of trial counsel, under the 6th
Amendment.
Supporting Facts: There was one critical deficieny [sic] in their
representation, and that was their willingness to indulge the state in
their repeated use of Joshua's puportted [sic] nickname, 'Psycho' and
in to fact join them in making such references. In addition to the
innumerable instances in which the state used or elicited this
nickname during it's [sic] case in chief, trial counsel used or elicited
this nickname no less than one dozen times.
Ground Five: The cumulative effect of the preceding errors denied
Mr. Morrissette of his constitutional due process right to a fair trial.
Supporting Facts: The preceding errors were sufficiently
prejudicial individually to warrant reversal of Joshua's conviction
and remand for a new trial. Considered cumulatively, these errors
indisputably deprived Joshua of his right to a fair trial. As such, his
conviction should be reversed and his case remanded for a new trial.
(Petition, ECF No. 1, PageID 5-11.)
Analysis
Ground One: Weight of the Evidence
In his First Ground for Relief, Petitioner argues that his conviction is against the manifest
weight of the evidence and also supported by insufficient evidence.
As the Return of Writ points out, these are two different claims. In State v. Thompkins, 78
Ohio St. 3d 380 (1997), the Supreme Court of Ohio reaffirmed the important distinction between
appellate review for insufficiency of the evidence and review on the claim that the conviction is
against the manifest weight of the evidence. It held:
In essence, sufficiency is a test of adequacy. Whether the evidence
is legally sufficient to sustain a verdict is a question of law. State v.
Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148.
In addition, a conviction based on legally insufficient evidence
constitutes a denial of due process. Tibbs v. Florida, 457 U.S. 31,
45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, (1982), citing
Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560. Although a court of appeals may determine that a judgment of
a trial court is sustained by sufficient evidence, that court may
nevertheless conclude that the judgment is against the weight of the
evidence. Robinson, supra, 162 Ohio St. at 487, 55 O.O. at 388-
389, 124 N.E.2d at 149. Weight of the evidence concerns "the
inclination of the greater amount of credible evidence, offered in a
trial, to support one side of the issue rather than the other. It
indicates clearly to the jury that the party having the burden of proof
will be entitled to their verdict, if, on weighing the evidence in their
minds, they shall find the greater amount of credible evidence
sustains the issue which is to be established before them. Weight is
not a question of mathematics, but depends on its effect in inducing
belief." (Emphasis added.)
When a court of appeals reverses a judgment of a trial court on the
basis that the verdict is against the weight of the evidence, the
appellate court sits as a " 'thirteenth juror' " and disagrees with the
factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S.
at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin
(1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d
717, 720-721 ("The court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the
evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new
trial ordered. The discretionary power to grant a new trial should be
exercised only in the exceptional case in which the evidence weighs
heavily against the conviction.").
78 Ohio St. 3d at 387. In State v. Martin, 20 Ohio App. 3d 172 (Hamilton Cty. 1983)(cited
approvingly by the Supreme Court in Thompkins), Judge Robert Black contrasted the manifest
weight of the evidence claim:
In considering the claim that the conviction was against the manifest
weight of the evidence, the test is much broader. The court,
reviewing the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of the witnesses and determines
whether in resolving conflicts in the evidence, the jury clearly lost
its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. …
Martin, 20 Ohio App. 3d 172, ¶3 of the syllabus. On direct appeal, Morrissette made only a
manifest weight claim, not an insufficiency of the evidence claim. A weight of the evidence claim
is not a federal constitutional claim. Johnson v. Havener, 534 F.2d 1232 (6th Cir. 1986). Therefore
this Court cannot consider Morrissette’s manifest weight claim on the merits.
Respondent argues Morrissette procedurally defaulted on his insufficiency of the evidence
claim by not raising it on direct appeal. However, the undersigned has for some years followed
the unpublished Sixth Circuit decision in Nash v. Eberlin, 258 Fed. Appx. 761 (6th Cir. Dec. 14,
2007), which held that a habeas petitioner did not default an insufficiency claim by only pleading
a manifest weight claim. See Hughes v. Warden, 2011 U.S. Dist. LEXIS 54131(S.D. Ohio Apr.
27, 2011), adopted, 2011 U.S. Dist. LEXIS 54132 (S.D. Ohio May 20, 2011). Following that
precedent, the Magistrate Judge finds Morrissette has preserved his insufficiency of the evidence
claim for presentation here.
Unlike the manifest weight claim, an allegation that a verdict was entered upon insufficient
evidence states a claim under the Due Process Clause of the Fourteenth Amendment to the United
States Constitution. Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970);
Johnson v. Coyle, 200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th
Cir. 1990)(en banc). In order for a conviction to be constitutionally sound, every element of the
crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable inferences
from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006);
United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was
recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991).
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to groups
who might view facts differently than we would. First, as in all
sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.
Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-
evaluate the credibility of witnesses, or substitute our judgment for
that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th
Cir. 1993). Thus, even though we might have not voted to convict a
defendant had we participated in jury deliberations, we must uphold
the jury verdict if any rational trier of fact could have found the
defendant guilty after resolving all disputes in favor of the
prosecution. Second, even were we to conclude that a rational trier
of fact could not have found a petitioner guilty beyond a reasonable
doubt, on habeas review, we must still defer to the state appellate
court's sufficiency determination as long as it is not unreasonable.
See 28 U.S.C. § 2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus
case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to
the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer,
541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc);
Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based
upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656
(6th Cir. 2010).
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of judicial
deference. First, on direct appeal, "it is the responsibility of the jury
-- not the court -- to decide what conclusions should be drawn from
evidence admitted at trial. A reviewing court may set aside the jury's
verdict on the ground of insufficient evidence only if no rational trier
of fact could have agreed with the jury." Cavazos v. Smith, 565 U.
S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam).
And second, on habeas review, "a federal court may not overturn a
state court decision rejecting a sufficiency of the evidence challenge
simply because the federal court disagrees with the state court. The
federal court instead may do so only if the state court decision was
'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S.
___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).
Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43
(2012) (per curiam). The federal courts do not make credibility determinations in reviewing
sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).
As noted above, Morrisette was convicted of two counts of murder, one count of felonious
assault, two counts of having weapons while under a disability and two drug charges. From the
way he pleads this claim, it appears he is claiming that there was insufficient evidence to prove
beyond a reasonable doubt that he killed the victim using a gun. Nothing in his Petition appears
to claim he did not have a prior felony conviction which would make it unlawful for him to possess
a firearm or that he was not guilty on the drug charges1.
Although manifest weight and insufficient evidence are different claims, an Ohio appellate
decision that a verdict is not against the manifest weight of the evidence necessarily implies that
there is sufficient evidence to convict. Nash, supra. In overruling Morrissette’s manifest wright
claim, the First District wrote:
[*P23] In support of his argument that his murder conviction must
be reversed, Morrissette contends that there was a dearth of tangible,
physical evidence connecting him to Tremble's murder and that the
witnesses' testimony connecting him to the murder lacked
credibility. But our review of the record convinces us that the
evidence in support of guilt was overwhelming. Contrary to
Morrissette's argument, the surveillance video footage showing him
reaching for something at his hip while looking at and walking
towards the victim, in the exact area where the shooting took place,
seconds before the shooting, was substantial physical evidence
connecting him to the murder. And the inference from that footage
was corroborated by testimony from multiple credible witnesses.
[*P24] For instance, Taylor testified that he had seen Morrissette
shoot Tremble and that Morrissette had asked for help in getting rid
of his gun after admitting to shooting Tremble. Admittedly, Taylor
had not stepped forward as an eyewitness until he had been arrested
on his own charges. But Taylor's prior experience as a witness
adequately explained his reluctance to assist the police.
[*P25] Miller and Cody testified that Morrissette had been
"looking for" Tremble when he left their apartment with a gun
compatible with the murder weapon minutes before Tremble was
1 The killing occurred on April 16, 2016, and the murder, assault and one of the weapons charges arises from that
incident. Morrissette was not arrested until October 5, 2016. The second weapons charge and the drug charges arise
from that arrest. Morrisette, 2018-Ohio-3917, ¶¶ 2 and 11.
shot. And Cody further testified that Morrissette had admitted to
shooting Tremble when, as confirmed by the surveillance video
footage, Morrissette returned to Cody's apartment building shortly
after the shooting.
[*P26] Other testimony supported a finding of guilt. Anderson and
Inman both testified that they had heard Morrissette threaten to kill
Tremble and admit to shooting him. Tremble's sister Naicha
identified Morrissette as the individual she had seen at the crime
scene immediately after the shooting. Finally, Morrissette's
statements in his recorded phone calls from jail showed a
consciousness of guilt. He admitted that he had fled from and
concealed himself from the police to avoid apprehension, intended
to feign insanity to avoid a long prison sentence for murder, and had
tried to distance himself from the nickname Psycho because he knew
it would be connected to the shooter.
[*P27] Admittedly, much of the evidence in support of guilt was
circumstantial. But circumstantial evidence inherently possesses the
same probative value as direct evidence. State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991), paragraph one of the syllabus.
[*P28] Moreover, the weight to be given the evidence and the
credibility of witnesses are primarily for the trier of fact. See State
v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph
one of the syllabus. This is not an "'exceptional case in which the
evidence weighs heavily against the conviction.'" Thompkins, 78
Ohio St.3d at 387, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio
App.3d 172, 175, 20 Ohio B. 215, 485 N.E.2d 717 (1st Dist.1983).
Consequently, we overrule the first assignment of error.
Morrissette, 2018-Ohio-3917.
As noted above, a federal habeas court does not re-weigh the credibility of the witnesses.
That is the job in the first instance of a trial jury and then of a state appellate court and a habeas
court must defer to their decision unless it is an unreasonable determination of the facts in light of
the evidence presented. 28 U.S.C. § 2254(d)(2). The direct testimony of witnesses recounted by
the First District is plainly sufficient for conviction.
The other portion of Morrissette’s insufficiency claim is that there is no “tangible,
physical” evidence placing the gun in his hand. This complaint shows a contemporary appreciation
of what it is possible to prove by “physical” evidence. Had the gun been recovered and shown to
have Morrissette’s DNA on it, this would presumably constitute “tangible, physical” evidence.
Before DNA identification technology made such proof possible, the “gold standard” for
identification was eyewitness testimony; one recalls Learned Hand’s invocation of the possibility
of such testimony from “twenty bishops.” Hotchkiss v. National City Bank, 200 F. 287, 293
(S.D.N.Y. 1911). Presumably Morrissette would argue that even such eyewitness testimony was
insufficient without “tangible, physical” evidence.
But that is not the law. “Circumstantial evidence alone is sufficient to support a conviction,
and it is not necessary for the evidence to exclude every reasonable hypothesis except that of guilt.”
United States v. Ramirez, 635 F.3d 249, 256 (6th Cir. 2011), quoting United States v. Stone, 748
F.2d 361, 362 (6th Cir. 1993); United States v. Wettstain, 618 F.3d 577, 583 (6th Cir. 2010); United
States v. McAuliffe, 490 F.3d 526, 537 (6th Cir. 2007); United States v. Kelley, 461 F.3d 817, 825
(6th Cir. 2006); United States v. Reed, 167 F.3d 984, 992 (6th Cir. 1999); United States v. Beddow,
957 F.2d 1330, 1334 (6th Cir. 1992). “[D]irect evidence of a fact is not required. Circumstantial
evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct
evidence. Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330 (1960)(Brennan), citing Rogers
v. Missouri Pacific R. Co., 352 U.S. 500, 508, n. 17(1957). Here the circumstantial evidence was,
as the First District found, overwhelming.
Morrissette’s First Ground for Relief is without merit and should be dismissed on that basis.
Ground Two: Prosecutorial Misconduct
In his Second Ground for Relief, Morrissette claims his trial was rendered unfair by
multiple instances of prosecutorial misconduct. Petitioner raised this claim as his Second
Assignment of Error on direct appeal. The First District discussed the issue at length:
[*P29] In his second assignment of error, Morrissette contends that
he is entitled to a new trial because of misconduct by the prosecutor.
He takes issue with the prosecutor's use of his nickname Psycho
throughout the trial and with some comments the prosecutor made
during closing argument.
[*P30] The test for prosecutorial misconduct is whether the
prosecutor made improper remarks at trial and, if so, whether those
remarks prejudicially affected substantial rights of the defendant.
State v. Smith, 14 Ohio St.3d 13, 14, 14 Ohio B. 317, 470 N.E.2d
883 (1984). Misconduct does not affect the defendant's substantial
rights unless it denied the defendant a fair trial. See State v. Diar,
120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 140; State
v. LeMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶
121; State v. Neeley, 143 Ohio App.3d 606, 621, 758 N.E.2d 745
(1st Dist.2001). We will not deem a trial unfair if, in the context of
the entire trial, it appears clear beyond a reasonable doubt that the
jury would have found the defendant guilty even without the
improper comments. LeMar at ¶ 121; Smith at 15.
[*P31] Although Morrissette argues that the prosecutor committed
misconduct, except where noted defense counsel failed to object and
thus forfeited all but plain error. See State v. Slagle, 65 Ohio St.3d
597, 604, 605 N.E.2d 916 (1992). HN5 To prevail on plain-error
review, Morrissette must establish that but for the misconduct, the
outcome of the trial clearly would have been otherwise. See Slagle
at 605; State v. Simmons, 2014-Ohio-3695, 19 N.E.3d 517 (1st
Dist.), ¶ 75, 19 N.E.3d 517, citing State v. Long, 53 Ohio St.2d 91,
372 N.E.2d 804 (1978), paragraph two of the syllabus.
[*P32] Repeated references to Morrissette as Psycho. We first
address the misconduct claim stemming from the repeated
references to Morrissette as Psycho. It was well established at trial
that Psycho was one of Morrissette's nicknames. The prosecutor
referred to Morrissette as Psycho when questioning certain
witnesses and occasionally during opening statement and closing
argument. According to Morrissette, the prosecutor referred to him
as Psycho at least 54 times and additionally elicited responses from
witnesses establishing the fact that he went by that nickname. He
contends these references were intended by the prosecutor to
"subtly" paint him as person prone to antisocial behavior.
[*P33] It is improper for a prosecutor to use a nickname for the
purpose of impugning the character of the defendant. State v.
Gillard, 40 Ohio St.3d 226, 230, 533 N.E.2d 272, 535 N.E.2d 315
(1988), abrogated on other grounds, State v. McGuire, 80 Ohio
St.3d 390, 1997- Ohio 335, 686 N.E.2d 1112 (1997), cited in State
v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508,
¶ 203. And, in general, an unnecessary use of a disparaging
nickname is improper. See State v. Lang, 129 Ohio St.3d 512, 2011-
Ohio-4215, 954 N.E.2d 596, ¶ 262. But this misconduct does not
result in plain error if, when weighing the evidence of guilt against
the significance of the reference to the nickname, it is not clear that,
had the nickname not been improperly used, the outcome of the trial
would [**18] have been different. See Gillard at 230; see generally
Simmons at ¶ 77 (Prosecutor's improper and repeated reference to
the defendant as the "offender" in closing argument did not affect
the outcome of the trial.).
[*P34] Here, the prosecutor at times needed to refer to Morrissette
by his nickname Psycho and to elicit responses establishing the
nickname for purposes of identification and clarity. For instance,
several of the state's witnesses only knew Morrissette as Psycho, and
the nickname was used to tie this testimony to the other testimony
incriminating Morrissette. The prosecutor also referenced the
nickname during closing argument when making a "consciousness
of guilt" argument. This argument was based on Morrissette's
statement during a recorded phone conversation directing the other
caller who had referred to him as "Psycho" to stop calling him by
that name. Morrissette told her, "That's what they want to hear, that's
not my name. Everybody keep calling me that. That ain't my name,
that's what they want to hear." Morrissette's comments, when read
in context, suggest that Morrissette wanted to distance himself from
that nickname because he knew witnesses would identify the shooter
by that name.
[*P35] The prosecutor used the nickname a few times when it was
not required for identification or clarification purposes, such as after
a witness who only knew Morrissette as Psycho had already
confirmed Morrissette's identity as the defendant. This unnecessary
use was improper, but it was not an overt attempt to impugn
Morrissette's character and any impugning effect was negligible. At
no point did the prosecutor bring up the origin of the nickname or
argue that the nickname reflected on Morrissette's character. After
considering these facts and the state's overwhelming evidence of
guilt, we conclude that the unnecessary use of the Psycho nickname
by the prosecutor was not outcome determinative and did not result
in plain error.
[*P36] Alleged misconduct during closing argument. Morrissette
argues the prosecutor committed multiple instances of misconduct
during closing argument. A prosecutor is entitled to a certain degree
of latitude during summation, and may comment at that time on
reasonable inferences from the evidence. State v. Smith, 14 Ohio
St.3d 13, 13, 14 Ohio B. 317, 470 N.E.2d 883 (1984); State v.
Stephens, 24 Ohio St.2d 76, 82, 263 N.E.2d 773 (1970). We review
the state's closing argument in its entirety to determine whether the
allegedly improper remarks were prejudicial. Slagle, 65 Ohio St.3d
at 607, 605 N.E.2d 916, citing State v. Moritz, 407 N.E.2d 1268, 63
Ohio St. 2d 150, 157 (1980).
[*P37] We first address Morrissette's complaint that the prosecutor
improperly commented on statements he made during his jail calls
indicating that he would plead insanity so that he could be sent to a
mental-health facility for a short time instead of serving a long
prison sentence. The record shows that in the opening portion of
closing argument, the prosecutor mentioned that Morrissette had
said some things during recorded jail calls that "[we]re not good for
him." The prosecutor then stated:
You hear [Morrissette] talking [in his jail calls] about
wanting to be found not guilty by reason of insanity. To be
found not guilty by reason of insanity, you have to have
committed the crime. To be found not guilty—John
Hinkley [sic] was found not guilty by reason of insanity.
[*P38] Defense counsel objected by stating, "Your Honor, I don't
think there is evidence." The court instructed the prosecutor to
"move on." The prosecutor did not mention Hinckley again, but
again referenced Morrissette's recorded statements involving his
intended insanity defense by reminding the jury, "Defendant was
stating he thinks this way, he can go to Summit. We learned during
trial Summit is a mental health facility in town, and he could be back
out in 2021."
[*P39] The state returned to this line of argument in the rebuttal
portion of its closing argument, when the prosecutor stated:
The next thing you have in your universe [of evidence] is
these jail calls where he talks about this insanity defense.
That's what it is. Insanity defense is, I did it, but I was
crazy. * * * I will plead insanity. I will do five or six years.
I will get out of here. I will be sitting in Summit. It will be
a piece of cake.
[*P40] Defense counsel objected to this argument and claimed it
was improper because there was "no evidence or testimony or
instruction from the court about what insanity or insanity defenses
were." The court then instructed the jury, "You have to take the law
from me. This is closing argument. This is not evidence. Ladies and
gentleman, this jury will determine what the facts are and apply the
law to that."
[*P41] The prosecutor then continued:
Are these the statements of an innocent man, I will plead
insanity? You can tell from the conversation he is trying to
pull a fast one. I will plead insanity. I will do five or six
years. I will get out of here. I will be sitting in Summit. It
will be a piece of cake. That's not innocence. It is a
subliminal admission of guilt.
[*P42] Morrissette contends the prosecutor's comments
transcended the bounds of acceptable argument. Specifically,
Morrissette argues the reference to Hinckley, the "would-be
assassin" of former President Ronald Reagan, was improper and
highly inflammatory. We agree that the reference to Hinckley,
which defense counsel objected to, was improper and the prosecutor
should not have injected that name into the trial. But we reject any
possibility that the prosecutor's fleeting reference to the name denied
Morrissette a fair trial. We conclude instead, in the context of the
entire closing argument and the other evidence at trial, that the
reference to Hinckley was harmless.
[*P43] Next, Morrissette contends these remarks on his plan to
plead insanity touched on the issue of punishment, an issue outside
the province of the jury. The state argues that Morrissette's
statements about pursuing an insanity defense were evidence of
consciousness of guilt and, therefore, the prosecutor's statements
were a fair comment on the evidence.
[*P44] "Questions of punishment have no place in the trial of guilt
or innocence," State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-
5445, 25 N.E.3d 1023, ¶ 138, and counsel should not comment on
those matters. Here, the state was not directly commenting on
Morrissette's punishment in this case, but was using Morrissette's
own words to explain why the jury could infer a tacit admission of
guilt from Morrissette's intent to feign insanity. Morrissette claims
there was an improper "subtext" to the state's argument, that he "was
a dangerous criminal who could potentially be back on the streets in
as few as five years if the jury didn't do their civic duty to convict
him of murdering" Tremble. But Morrissette's reading of the state's
argument is a stretch. While we do not condone the prosecutor's
comments, Morrissette did not object in the trial court on the ground
that the prosecutor was touching on punishment, and he has failed
to demonstrate that these comments were outcome determinative.
[*P45] Morrissette also attacks the prosecutor's contention during
the rebuttal portion of closing argument that the state's evidence was
"completely unrebutted," claiming the prosecutor misrepresented
the record and improperly shifted the burden of proof. Morrissette
contends the statement was "false" because defense counsel's cross-
examination of the witnesses exposed "gaps and inconsistencies" in
the evidence and testimony offered by the state. But we conclude
that the prosecutor's commentary on the evidence, when read in
context, falls squarely within the latitude afforded to counsel.
[*P46] The prosecutor's full argument on this issue was that
inconsistencies brought out by the defense were not material.
Moreover, the prosecutor's comment was permissible comment on
the "relative strength" of the state's case, State v. Ferguson, 5 Ohio
St.3d 160, 163, 5 Ohio B. 380, 450 N.E.2d 265 (1983), and in no
way implied that the state's burden of proof had shifted to the
defense. See State v. Collins, 89 Ohio St.3d 524, 527, 2000- Ohio
231, 733 N.E.2d 1118 (2000).
* * *
[¶¶ 47-48 omitted because these paragraphs discuss an asserted
instance of misconduct which weren not brought forward in the
Petition.]
[*P49] Ultimately, we conclude that although some of the
prosecutor's comments were improper, the effect of those improper
comments, even when combined, was of no significance and did not
result in an unfair trial. Accordingly, we overrule the second
assignment of error.
Morrisette, 2018-Ohio-3917.
As the First District noted, defense counsel failed to object to almost all of these asserted
instances of prosecutorial misconduct and Morrissette thereby forfeited all but plain error review.
On this basis, Respondent claims most of the Second Ground for Relief is barred by this procedural
default.
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights
claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S.
72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982).
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786
F.3d 450, 464 (6th Cir. 2015), Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)(en banc);
Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th
Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261
F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
. . . .
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of Ulster
County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777
(1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357
(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas petitioner
can overcome a procedural default by showing cause for the default and prejudice from the asserted
error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015).
Ohio’s contemporaneous objection rule — that parties must preserve errors for appeal by
calling them to the attention of the trial court at a time when the error could have been avoided or
corrected, set forth in State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the syllabus; see
also State v. Mason, 82 Ohio St. 3d 144, 162 (1998) — is an adequate and independent state ground
of decision. Wogenstahl v. Mitchell, 668 F.3d 307, 334 (6th Cir. 2012),citing Keith v. Mitchell,
455 F.3d 662, 673 (6th Cir. 2006); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith
v. Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010); Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007);
Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003),
citing Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854 (6th Cir.
2000), citing Engle v. Isaac, 456 U.S. 107, 124-29 (1982). See also Seymour v. Walker, 224 F.3d
542, 557 (6th Cir. 2000); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v.
Bradshaw, 591 F.3d 517, 522 (6th Cir.), cert. denied, 562 U.S. 876 (2010).
An Ohio state appellate court’s review for plain error is enforcement, not waiver, of a
procedural default. Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012); Jells v. Mitchell, 538
F.3d 478, 511 (6th Cir. 2008); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); White v. Mitchell,
431 F.3d 517, 525 (6th Cir. 2005); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Hinkle v. Randle,
271 F.3d 239 (6th Cir. 2001).
To the extent Petitioner’s claims of prosecutorial misconduct are based on prosecutorial
comments that were not objected to, they are procedurally defaulted and should be dismissed on that
basis.
To the extent defense counsel did object to prosecutorial comment about the insanity defense,
the Magistrate Judge finds the comments were proper to call the jury’s attention to Morrissette’s state
of mind in making calls from jail in which he implied he could avoid serious prison time by pleading
not guilty by reason of insanity and being committed to a mental institution. A plea of not guilty by
reason of insanity implies an admission of committing the crime but excusing it by one’s mental state.
Morrissette’s comments, taken in context, are plausibly seen as an admission of having committed the
murder. The comment about John Hinckley, the man who attempted to assassinate Ronald Reagan,
was unnecessary, but fleeting.
In Serra v. Michigan Dept of Corrections, 4 F.3d 1348 (6th Cir. 1993), the court identified
factors to be weighed in considering prosecutorial misconduct claims:
In every case, we consider the degree to which the remarks
complained of have a tendency to mislead the jury and to prejudice
the accused; whether they are isolated or extensive; whether they
were deliberately or accidentally placed before the jury, and the
strength of the competent proof to establish the guilt of the accused.
Id. at 1355-56, quoting Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982)(citation omitted).
The misconduct must be so gross as probably to prejudice the defendant. Prichett v. Pitcher, 117
F.3d 959, 964 (6th Cir.), cert. denied, 522 U.S. 1001 (1997)(citation omitted); United States v.
Ashworth, 836 F.2d 260, 267 (6th Cir. 1988). Claims of prosecutorial misconduct are reviewed
deferentially on habeas review. Thompkins v. Berghuis, 547 F.3d 572 (6th Cir. 2008), rev’d on
other grounds, 560 U.S. 370 (2010), citing Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004),
cert. denied, 544 U.S. 921 (2005). On habeas review, "the relevant question is whether the
prosecutor's comments 'so infected the trial with unfairness as to make the conviction a denial of
due process.'" Darden v. Wainwright, 477 U.S. 168, 181, 91 L. Ed. 2d 144, 106 S. Ct. 2464 (1986)
(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 40 L. Ed. 2d 431, 94 S. Ct. 1868 (1974)).
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision is
contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S.
Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-
94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).
The First District’s decision on Morrissette’s prosecutorial misconduct claim is neither
contrary to nor an objectively unreasonable application os the Supreme Court’s precedent on such
claims. Petitioner’s Second Ground for Relief should therefore be dismissed as in part
procedurally defaulted and in part without merit.
Ground Three: Erroneous Flight Instruction
In his Third Ground for Relief, petitioner asserts he was deprived of due process of law by
the trial court’s instruction on the inference of guilt that a jury can draw from a defendant’s flight
after a crime has been committed.
The Petition is unclear whether Morrissette is claiming that the flight instruction was a
misstatement of Ohio law on the subject or that there was insufficient evidence presented to
warrant such an instruction and Morrissette has filed no reply to clarify his claim. In arguing this
claim on direct appeal, Petitioner’s appellate counsel made an insufficient evidence argument.
Petitioner is proceeding in this Court pro se and is therefore entitled to a liberal construction of his
pleadings. Haines v. Kerner, 404 U.S. 519 (1972); Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir.
2001). The Magistrate Judge will therefore read the Petition as bringing forward the claim made
by counsel on direct appeal.
Federal habeas corpus is available only to correct federal constitutional violations. 28
U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780
(1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). Alleged
errors in jury instructions normally do not rise to the level of federal constitutional violations. See
Engle v. Isaac, 456 U.S. 107 (1982); Turoso v. Cleveland Municipal Court, 674 F.2d 486 (6th Cir.
1982); Eberhardt v. Bordenkircher, 605 F.2d 275 (6th Cir. 1979); Weston v. Rose, 527 F.2d 524
(6th Cir. 1975). When the evidence presented does not support a requested jury instruction and
that determination is based upon a state court’s interpretation and application of state law, an
asserted error relating to the jury instruction is not cognizable in federal habeas corpus unless the
failure amounted to a fundamental miscarriage of justice. See Bagby v. Sowders, 894 F.2d 792,
795 (6th Cir. 1990).
The First District considered the erroneous flight instruction claim as the Third Assignment
of Error on direct appeal and decided it as follows:
[*P50] In his third assignment of error, Morrissette argues the trial
court erred in giving a jury instruction on flight. He argues that the
evidence did not show he fled from justice, rending the instruction
improper. We disagree.
[*P51] Evidence of the accused's flight, concealment, and related
conduct is admissible to show consciousness of guilt. See State v.
Taylor, 78 Ohio St.3d 15, 27, 1997- Ohio 243, 676 N.E.2d 82
(1997); State v. Eaton, 19 Ohio St.2d 145, 160, 249 N.E.2d 897
(1969); State v. Summerlin, 1st Dist. Hamilton No. C-160539, 2017-
Ohio-7625, ¶ 21. An instruction on flight is proper if the record
contains sufficient evidence to support the charge. Summerlin at ¶
21. "Flight" means some escape or affirmative attempt to avoid
apprehension by the police. Id., citing State v. Brundage, 1st Dist.
Hamilton No. C-030632, 2004-Ohio-6436, ¶ 17. The decision
whether to instruct the jury on flight is a matter within the trial
court's discretion and is reviewed for an abuse of that discretion. Id.
[*P52] The state's evidence in this case, if believed, demonstrated
that after the shooting Morrissette left town for some period of time
and never showed up for work again or contacted his employer to
terminate his employment. In the recorded jail calls, Morrissette
repeatedly acknowledged that he knew the police had been looking
for him and he laughed about successfully eluding them. He recalled
eluding apprehension by a squad of police officers by hiding in a
tree. On another occasion he had rubbed "hella hair grease,"
"seasoning," and "cologne" on his body to prevent K-9 police dogs
from alerting to his scent. Under these circumstances, we cannot
hold that the trial court's decision to give a flight instruction was so
arbitrary, unreasonable, or unconscionable as to connote an abuse of
discretion. See State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d
144 (1980); Summerlin at ¶ 21. Consequently, we overrule the third
assignment of error.
Morrissette, 2018-Ohio-3917.
There is nothing unconstitutional per se about instructing a jury that it may infer
consciousness of guilt from flight, meaning attempts to elude the police. Given the evidence at
trial about Morrissette’s attempts to avoid the police, there was ample evidence to warrant giving
the instruction. That is, such an instruction in these circumstances did not create a manifest
injustice. Ground Three should be dismissed on the merits.
Ground Four: Ineffective Assistance of Trial Counsel in Not Objecting to “Psycho”
In his Fourth Ground for Relief, Morrissette claims he received ineffective assistance of
trial counsel when his counsel failed to object to the prosecutor’s of the nickname “Psyhco” when
referring to Petitioner.
The governing standard for ineffective assistance of counsel is found in Strickland v.
Washington, 466 U.S. 668 (1984):
A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence has
two components. First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel was
not functioning as the "counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction
or death sentence resulted from a breakdown in the adversary
process that renders the result unreliable.
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing
Knowles v. Mirzayance, 556 U.S.111 (2009).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial scrutiny of counsel's performance must be highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at
the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel's
conduct falls within a wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action "might be
considered sound trial strategy."
466 U.S. at 689.
As to the second prong, the Supreme Court held: “The defendant must show that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to overcome
confidence in the outcome.” 466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184
(1986), citing Strickland, supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing
Strickland, supra; Blackburn v. Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland,
466 U.S. at 687. “The likelihood of a different result must be substantial, not just conceivable.”
Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S.
86, 111-12 (2011).
In assessing prejudice under Strickland, the question is not whether
a court can be certain counsel's performance had no effect on the
outcome or whether it is possible a reasonable doubt might have
been established if counsel acted differently. See Wong v.
Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328
(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052,
80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably
likely” the result would have been different. Id., at 696, 104 S. Ct.
2052, 80 L. Ed. 2d 674. This does not require a showing that
counsel's actions “more likely than not altered the outcome,” but the
difference between Strickland's prejudice standard and a more-
probable-than-not standard is slight and matters “only in the rarest
case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The
likelihood of a different result must be substantial, not just
conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.
Harrington v. Richter, 562 U.S. 86, 111-112 (2011).
The First District considered this claim as Morrissette’s Fourth Assignment of Error on
direct appeal and decided it as follows:
[*P53] In his fourth assignment of error, Morrissette contends he
was denied the effective assistance of trial counsel because his
attorneys failed to object to the state's repeated use and elicitation of
the nickname Psycho, and actually joined the state in making such
references.
[*P54] To prevail on an ineffective-assistance-of-counsel claim,
Morrissette must demonstrate that counsel's performance fell below
an objective standard of reasonableness and he was prejudiced as a
result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). With regard to deficient performance, "a
court must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance." Id. at
689. To demonstrate prejudice, Morrissette must establish that, but
for counsels' errors, there is a reasonable probability that the result
of the trial would have been different. Strickland at 694; State v.
Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). The
failure to make an adequate showing on either prong is fatal to an
ineffective-assistance-of-counsel claim. See Strickland at 697.
[*P55] Here, Morrissette cannot prevail on his claim. When
disposing of the second assignment of error, we found the
prosecutor had acted improperly when he referred to Morrissette as
Psycho in instances where that reference had not been required for
identification purposes, but concluded that any improper use of the
nickname had not affected the outcome of the trial. We determined
that any impugning effect was negligible when weighed against the
overwhelming evidence of guilt. For similar reasons, we hold that
defense counsels' failure to object to the state's unnecessary use of
the name and defense counsels' own allegedly unnecessary use of
the name at trial was not outcome determinative, either. The jury
was not told the origin of the nickname and it was not used in an
impugning manner. Although the nickname was used a significant
number of times, this alone does not demonstrate the requisite
prejudice to establish an ineffective-assistance-of-counsel claim.
The strength of the state's evidence was such that we are confident
the jury would have found Morrissette guilty of the offenses even
absent the allegedly deficient performance by trial counsel.
Accordingly, we overrule the fourth assignment of error.
Morrissette, 2018-Ohio-3917.
The First District found that at least some uses of Morrissette’s nickname were necessary
for purposes of identification because some of the witnesses knew him only by the nickname.
Morrissette does not dispute that the nickname was in common usage in his neighborhood. While
the nickname is certainly pejorative, there is no evidence that the prosecutor made it up. The First
District found it had been used on some occasions when it was not necessary for identification and
indeed it had even been used by Morrissette’s own counsel. This is probably a result of the
common phenomenon that when someone is identified by a nickname early in a lengthy discourse,
there is a tendency to use the nickname shortcut later in that discourse. It is unfortunate that
Morrissette had acquired such an pejorative nickname, but there is little doubt that, whatever its
origin, it had “stuck” to him by the time of trial. Under those circumstances the First District’s
decision that it did not constitute ineffective assistance of trial counsel to fail to object is entitled
to deference; it is not an objectively unreasonable application of Strickland. Ground Four should
be dismissed on the merits.
Ground Five: Cumulative Error
In his Fifth Ground for Relief, Morrissette argues that, even if the other grounds alone do
not warrant relief, all four of them taken together are sufficient to grant the writ. At least since the
adoption of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
Stat. 1214), such claims have not been cognizable in habeas corpus. Sheppard v. Bagley, 657 F.3d
338, 348 (6th Cir. 2011), cert. denied, 132 S.Ct. 2751 (2011), citing Moore v. Parker, 425 F.3d
250, 256 (6th Cir. 2005), cert. denied sub nom. Moore v. Simpson, 549 U.S. 1027 (2006).;
Moreland v. Bradshaw, 699 F.3d 908, 931 (6th Cir. 2012).
Morrissette’s Fifth Ground for Relief should therefore be dismissed for failure to state a
claim upon which habeas corpus relief can be granted.
Conclusion
Based on the foregoing analysis, it is respectfully recommended that the Petition herein be
dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, it
is also recommended that Petitioner be denied a certificate of appealability and that the Court
certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be
permitted to proceed in forma pauperis.
October 19, 2020.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6. Such objections shall specify the portions of the Report objected to and shall be
accompanied by a memorandum of law in support of the objections. A party may respond to
another party’s objections within fourteen days after being served with a copy thereof. Failure to
make objections in accordance with this procedure may forfeit rights on appeal.