Morgan v. Warden, Dayton Correctional Institution

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

MELISSA A. MORGAN,

Plaintiff,

Case No. 1:19-cv-93

v. JUDGE DOUGLAS R. COLE

Magistrate Judge Merz

WARDEN, DAYTON

CORRECTIONAL SYSTEM,

Defendant.

OPINION AND ORDER

This cause is before the Court on Plaintiff Melissa A. Morgan’s Objection (Doc.

14) to the Magistrate Judge’s Report and Recommendations (“R&R”) (Doc. 13), which

recommends denying Morgan’s Petition for a Writ of Habeas Corpus (Doc. 1). For the

reasons discussed below, the Court ADOPTS the R&R (Doc. 13) in full,

OVERRRULES Morgan’s Objection (Doc. 14), DISMISSES Morgan’s Petition for a

Writ of Habeas Corpus (Doc. 1) WITH PREJUDICE, and CERTIFIES that an

appeal of this Order would not be taken in good faith.

BACKGROUND

On October 20, 2014, Melissa Morgan stabbed Maurice Mundy in the neck.

State v. Morgan, Appeal No. C-160495, 2017 WL 3951907, at *1 (Ohio Ct. App. Sept.

8, 2017). Mundy died from the resultant injuries approximately one year later. Id. At

trial, Morgan argued that she had stabbed Mundy in self-defense after Mundy hit her

in the face during an altercation over $250 he said Morgan had stolen from him. Id.

The jury rejected Morgan’s defense and found her guilty of murder. Id. Morgan

received a sentence of fifteen years to life imprisonment. Id.

Morgan appealed her conviction to the Ohio Court of Appeals, First District,

Hamilton County. Id. In her appeal, Morgan asserted various errors by the trial court,

including several evidentiary rulings discussed in more detail below. In her briefing

on appeal, Morgan did not cite federal constitutional case law or expressly refer to

the Sixth or Fourteenth Amendments to the United States Constitution. (R&R, Doc.

13, #954; see also Obj. to R&R (“Obj.”), Doc. 14, #966). The Ohio Court of Appeals

affirmed Morgan’s conviction. Morgan, 2017 WL 3951907, at *1. The Supreme Court

of Ohio declined jurisdiction. State v. Morgan, 92 N.E.3d 881 (Table) (Ohio 2018).

In her Petition for a Writ of Habeas Corpus (Doc. 1) here, Morgan argues that

the trial court violated her constitutional rights to a fair trial and due process by

allowing the prosecution to present character evidence of her propensity for violence,

as well as other evidence whose prejudicial effect outweighed its probative value.

Specifically, Morgan argues that the prosecution introduced recordings of telephone

conversations from the jail in which she, among other things, referred to the victim

using a racial epithet, stated she was glad he died, said other inmates had given her

the nickname “shank-shank,” discussed hiding her car from the repo man, and stated

that she did not have custody of her daughter and may not be a fit parent. (Reply to

Return of Writ (“Reply”), Doc. 10, #938–40). Morgan also argues that the prosecution

impermissibly cross-examined her about past incidents in which she had assaulted

other people. (Id. at #940). For these reasons, Morgan argues, the trial court’s denial

of her motion for a mistrial violated her constitutional rights. (Id. at #941).

On March 24, 2020, Magistrate Judge Merz filed his R&R (Doc. 13),

recommending that this Court dismiss Morgan’s habeas petition with prejudice.

First, the Magistrate Judge found that Morgan’s constitutional claims were

procedurally defaulted because Morgan failed to fairly present them to the state

appellate courts on direct appeal. (R&R, Doc. 13, #954–57). Second, the Magistrate

Judge concluded in the alternative that, even reaching the merits of Morgan’s

constitutional arguments, the evidentiary determinations that form the basis for her

habeas petition do not amount to a violation of her federal constitutional right to a

fair trial. (Id. at #957–63).

On April 5, 2020, Morgan objected to the R&R. (Obj., Doc. 14). The matter is

now fully briefed and ready for the Court’s review.

LEGAL STANDARD

If a party objects within the allotted time to a report and recommendation, the

Court “shall make a de novo determination of those portions of the report or specified

proposed findings or recommendations to which objection is made.” 28 U.S.C.

§ 636(b)(1)(C); see also Fed R. Civ. P. 72(b). Upon review, the Court “may accept,

reject, or modify, in whole or in part, the findings or recommendations made by the

magistrate judge.” 28 U.S.C. § 636(b)(1).

LAW AND ANALYSIS

The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) applies to all

habeas corpus petitions filed after April 24, 1996, and requires “heightened respect”

for legal and factual determinations made by state courts. See Herbert v. Billy, 160

F.3d 1131, 1134 (6th Cir. 1998). Section 2254(d), as amended by the AEDPA,

provides:

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

28 U.S.C. § 2254(d).

This is a “difficult to meet and highly deferential standard,” Cullen v.

Pinholster, 563 U.S. 170, 181 (2011) (citations and internal quotation marks omitted),

because all findings of fact by the state court are presumed to be correct and can be

rebutted only by “clear and convincing evidence,” Mitchell v. Mason, 325 F.3d 732,

737–38 (6th Cir. 2003) (citing 28 U.S.C. § 2254(e)(1)). As to legal conclusions, a federal

habeas court may overturn a state court’s application of federal law only if “there is

no possibility fairminded jurists could disagree that the state court’s decision conflicts

with [Supreme Court] precedents.” Nevada v. Jackson, 569 U.S. 505, 509–10 (2013)

(per curiam) (citation and quotation omitted). And habeas provides relief only for

violations of the U.S. Constitution. State law determinations, even if incorrect, cannot

serve as the basis for federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67 (1991).

Relatedly, a litigant seeking habeas relief on federal constitutional grounds

must have “fairly presented” her constitutional claims to the state courts first. Jacobs

v. Mohr, 265 F.3d 407, 415 (6th Cir. 2001); McMeans v. Brigano, 228 F.3d 674, 681

(6th Cir. 2000); Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir. 2006). To “fairly

present” a federal constitutional claim to the state courts, it is not enough to use

phrases like “fair trial” or “due process”; rather, the litigant must make some

argument identifying both the factual and the legal basis for the constitutional claim.

See Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir. 2006) (“bare and isolated citation

to the Fourteenth and Sixth Amendments” insufficient); McMeans, 228 F.3d at 681

(“General allegations of the denial of rights to a ‘fair trial’ and ‘due process’ do not

‘fairly present’ claims that specific constitutional rights were violated.”) (citation

omitted); Riggins v. McGinnis, 50 F.3d 492, 494 (7th Cir. 1995) (“A lawyer need not

develop a constitutional argument at length, but he must make one; the words ‘due

process’ are not an argument.”).

In this circuit, courts determining whether a habeas petitioner has fairly

presented a constitutional issue to the state courts look in particular for the following

four indicia in the petitioner’s briefing: “(1) reliance upon federal cases employing

constitutional analysis; (2) reliance upon state cases employing federal constitutional

analysis; (3) phrasing the claim in terms of constitutional law or in terms sufficiently

particular to allege a denial of a specific constitutional right; or (4) alleging facts well

within the mainstream of constitutional law.” McMeans, 228 F.3d at 681; Slaughter,

450 F.3d at 236.

Here, the Magistrate Judge determined that Morgan did not fairly present her

constitutional claims to the state courts. The Court agrees. Morgan’s briefing to the

state courts does not contain any of the indicia identified in the Sixth Circuit case law

discussed above.

With respect to the first factor, Morgan concedes that her briefing to the state

courts did not include any federal case law interpreting the U.S. Constitution. (Obj.,

Doc. 14, #966). Morgan suggests, however, that her briefing to the Ohio Court of

Appeals met the second factor because she cited a state court case for the following

propositions: “[a] mistrial should be declared when the ends of justice so require and

a fair trial is no longer possible,” and “[a] fair trial was no longer possible after the

State was permitted to question Ms. Morgan about specific instances tending to show

she had a propensity to commit violent acts.” (Id. (citing State Ct. R., Doc. 7, #60

(citing State v. Franklin, 580 N.E.2d 1, 9 (Ohio 1991)))). But the single state court

case Morgan cited for these two propositions, like the other cases cited in her state

court briefing, does not contain pertinent federal constitutional analysis. Rather, the

relevant portion of the case solely addresses the admissibility of evidence under the

Ohio Rules of Evidence. See Franklin, 580 N.E.2d at 9 (mistrial unnecessary because

any evidentiary or other errors were harmless). Thus, Morgan did not even cite, much

less rely on, either state or federal cases employing pertinent federal constitutional

analysis.1

Moreover, the quotations above also fail to satisfy the third factor. They

constitute exactly the sort of “talismanic” invocations of the phrase “fair trial” without

further elaboration that have been held insufficient to fairly present a federal

constitutional issue to a state court. (See R&R, Doc. 13, #955 (citing cases)). In

context, they support only Morgan’s state-law argument that the trial court abused

its discretion under the Ohio Rules of Evidence by admitting the evidence in question.

(See State Ct. R., Doc. 7, #60) (“A trial court abuses its discretion where it refuses to

grant a motion for a mistrial founded on the state’s raising a defendant’s character

for violence where such questioning is forbidden by Evid. R. 404(A) and where the

defendant’s sole defense is self-defense.”) Thus, Morgan did not phrase her claims in

terms of constitutional law or in terms sufficiently particular to allege a denial of a

specific constitutional right, but instead argued them exclusively in terms of Ohio’s

state law of evidence. See McMeans, 228 F.3d at 681. Finally, Morgan does not argue

that her briefing to the Ohio Court of Appeals alleged facts “well within the

mainstream of constitutional law,” nor does she cite any authority that would suggest

that this is the case. See id.

Nevertheless, Morgan argues that she “carved more detail into her

constitutional argument” in her briefing to the Ohio Supreme Court. (Obj., Doc. 14,

1 Morgan did cite State v. Glover, 517 N.E.2d 900 (Ohio 1988), which happens to be a double

jeopardy case, but that is irrelevant here as (1) Morgan does not claim a double jeopardy

violation, and (2) Morgan cited the case only for the general legal standard applicable to a

mistrial. (State Ct. R., Doc. 7, #60).

#966). She cites the following passage from her Ohio Supreme Court brief, which the

Court reproduces here in full:

The Constitutional requirement that the State prove a

defendant’s guilt beyond a reasonable doubt is the cornerstone of the

common law and prohibition against using unduly prejudicial evidence

to secure a conviction is the bulwark that fortifies a defendant’s right to

a fair trial and due process of law. Where the Rules of Evidence were

promulgated to ensure that these essential rights are not trampled, the

admissibility of character evidence remains one of the most litigated

evidentiary issues. In this case, as will be discussed below, a young

woman was tried for murder although all agreed she was in the process

of being attacked by the African-American “victim.” Because her sole

defense was self-defense, it was imperative that she waive her Fifth

Amendment rights by taking the stand, and knowing this, the

prosecution played numerous recorded jail calls for the jury during its

case-in-chief, which, although minimally if not completely irrelevant to

the charge, portrayed her as a hot-headed and violent racist nick-named

“shank-shank” who was not only physically unclean, a criminal, a bad

parent, a drug addict, but also a liar. Upon taking the stand, she insisted

that she had hoped to resolve the situation with her eventual attacker

“calmly” and explained her belligerent demeanor by candidly admitting

that she had grown up a “Crip” and had always “acted tough.” Although

she never once claimed to be a non-violent person and tacitly admitted

that she was prone to fighting, the prosecution was allowed to cross-

examine her using a litany of unrelated prior conduct that again cast

her in the roles of a generally violent person and a liar. Not surprisingly,

she was ultimately convicted.

As noted by the Honorable United States Supreme Court Justice

Robert H. Jackson “[c]courts [sic] that follow the common law tradition

almost unanimously have come to disallow resort by the prosecution to

any kind of evidence of a defendant’s evil character to establish a

probability of his guilt [ ] … The State may not show defendant’s prior

trouble with the law, specific criminal acts, or ill name among his

neighbors, even though such facts might logically be persuasive that he

is by propensity a probable perpetrator of the crime. [ ] The inquiry is

not rejected because character is irrelevant; [ ] on the contrary, it is said

to weigh too much with the jury, and to so overpersuade them as to

prejudice one with a bad general record and deny him a fair opportunity

to defend against a particular charge. The overriding policy of excluding

such evidence, despite its admitted probative value, is the practical

experience that its disallowance tends to prevent confusion of issues,

unfair surprise, and undue prejudice.” Michelson v. United States, 69

S.Ct. 213, 218–219, 335 U.S. 469, 475–76, 93 L.Ed. 168 (1948) (citations

and footnotes omitted). After all, “how is one supposed to have a fair trial

on the questions of guilt when the whole tenor of the testimony being

presented has the undeniable effect of causing the jurors to view the

accused in a very negative light?” State v. Spaulding, 2016-Ohio-8126,

at ¶ 325 [sic], 2016 WL 7386160 (Justice O’Neill dissenting).

(Obj., Doc. 14, #966–67 (citing State Ct. R., Doc. 7, #111–12)).

The above passage argues Morgan’s appeal to the Ohio Supreme Court in

terms of evidentiary rather than federal constitutional issues. For example, to the

extent that Morgan refers expressly to specific provisions of the U.S. Constitution, it

is not to the Sixth and Fourteenth Amendments that provide for the fair trial and

due process rights on which her habeas claims are based. Rather, Morgan refers to

“[t]he Constitutional requirement that the State prove a defendant’s guilt beyond a

reasonable doubt.” (Id. at #966). But Morgan does not argue in her petition that the

state trial court erroneously instructed the jury as to the burden of proof in a criminal

case, and thus does not present that constitutional issue as a basis for relief here.

(See id. at #966–67). Likewise, Morgan refers to the Fifth Amendment in the context

of explaining her decision to take the stand, but there is also no Fifth Amendment

issue with respect to her petition for habeas relief. (Id. at #967).

The lengthy quotations from Michelson and Spaulding further confirm the

view that Morgan was making an evidentiary rather than a constitutional argument.

While Michelson preceded the Federal Rules of Evidence, it concerns the federal

common law of evidence rather than federal constitutional law, as the Magistrate

Judge correctly recognized. See Michelson, 335 U.S. at 475–76; see also R&R, Doc. 13,

#957–58. Likewise, Spaulding discusses the admission of prior-act evidence in the

trial court as a matter of the Ohio Rules of Evidence rather than the U.S.

Constitution. See Spaulding, 89 N.E.3d 554, 557 et seq. (Ohio 2016). Thus, Morgan’s

references to her state court briefing tend to confirm rather than refute that she did

not fairly present her fair trial and due process claims to the state courts.

True, Morgan invokes “a defendant’s right to a fair trial and due process of

law” at the outset of her evidentiary argument. (Obj., Doc. 14, #967). But Sixth Circuit

case law suggests that it is not enough to tack such an entirely unelaborated claim of

a federal constitutional violation onto an argument otherwise grounded in state law.

For example, the petitioner in Slaughter challenged the trial court’s decision to allow

a juror to question him. 450 F.3d at 235. In his state court briefing, he had cited the

“14th and 6th Amendments” and had stated that “[b]ased on this denial of due process

and a fair trial by an impartial jury, appellant is entitled to a new trial,” but had

otherwise argued the issue under Kentucky law. Id. at 236. The Sixth Circuit

considered this a procedural default of the petitioner’s federal constitutional

arguments. Id. If anything, this is a clearer case than Slaughter, because Morgan did

not even explicitly cite the Sixth or Fourteenth Amendments to the U.S. Constitution

in pressing her evidentiary arguments in state court.

Morgan last argues that her state court briefing alleged a federal constitutional

violation because it concerned the “fundamental fairness” of her trial. (Obj., Doc. 14,

#968). She cites Williams v. Taylor, 529 U.S. 362, 375 (2000), for the proposition that

“errors that undermine confidence in the fundamental fairness of the state

adjudication certainly justify the issuance of the federal writ.” (Obj., Doc. 14, #968).

Morgan further cites Brown v. O’Dea, 227 F.3d 642, 645 (6th Cir. 2000), in support of

her argument that a violation of state evidentiary rules can amount to a

constitutional violation “when such violation results in the denial of fundamental

fairness, and concomitantly, a violation of due process.” (Obj., Doc. 14, #968). But

there are two problems. First, Morgan did not use the phrase “fundamental fairness”

in her state court briefing. Second, even if she had, it is doubtful whether mere use of

this phrase would have fairly presented a federal constitutional argument to the state

courts, given that similar phrases like “fair trial” and “due process”—phrases that

she did include in describing her argument to the Ohio Supreme Court—are

insufficient to do so, as noted above. See Slaughter, 450 F.3d at 236; McMeans, 228

F.3d at 681; Riggins, 50 F.3d at 494.

To be sure, Morgan unsurprisingly characterized her trial as unfair. But if that

in itself were enough to fairly present a constitutional argument, then it is hard to

see how any claim of a non-harmless evidentiary violation would not automatically

also state a tacit federal constitutional claim to the state court. As discussed above,

though, that is not the law: a defendant must make a specific argument that the state-

court proceeding violated a particular federal constitutional right. Because Morgan

has not met that standard, the Court agrees with the Magistrate Judge that Morgan

did not fairly present her federal constitutional arguments to the state courts. That,

in and of itself, is sufficient to doom her petition here.

Alternatively, even if Morgan had not procedurally defaulted her claims, the

Magistrate Judge also concluded that the claims lack merit. Again, the Court agrees.

Under the demanding legal standards discussed above, Morgan’s fair trial claim

based on admission of character or propensity evidence does not entitle her to habeas

relief. As the Sixth Circuit has noted, “[t]here is no clearly established Supreme Court

precedent which holds that a state violates due process by permitting propensity

evidence in the form of other bad acts evidence.” Bugh v. Mitchell, 329 F.3d 496, 512

(6th Cir. 2003). True, as discussed above, the Sixth Circuit has declined to foreclose

the possibility that “a violation of a state’s evidentiary rule” could warrant habeas

relief where “such violation results in the denial of fundamental fairness, and

concomitantly, a violation of due process.” O’Dea, 227 F.3d at 645. Specifically,

improper admission of evidence might warrant habeas relief where the evidence was

“material in the sense of a crucial, critical highly significant factor” in the jury’s

decision to convict. Id. (quoting Leverett v. Spears, 877 F.2d 921, 925 (11th Cir. 1989)).

But, as the Magistrate Judge correctly noted, this discussion is dicta. (R&R, Doc. 13,

#958).

Moreover, even if this avenue to habeas relief is available in an appropriate

situation, it does not help Morgan here for two reasons. First, the state courts of Ohio

have determined that there was no violation of Ohio’s Rules of Evidence with respect

to the character and propensity evidence at issue here. See Morgan, 2017 WL

3951907, at *2–3. Second, Morgan has not met her burden to establish that the

admission of any of the evidence at issue here was “a crucial, critical highly significant

factor” in the jury’s decision to convict her. As the Magistrate Judge noted, the jury

would not have had to rely on the evidence at issue here in reaching its conclusion

that Morgan did not act in self-defense. (R&R, Doc. 13, #959–60). For example,

instead of believing that Morgan was an inherently violent person, the jury might

have concluded that Morgan made no attempt to fulfill her duty to retreat before she

stabbed Mundy, who was not armed, in the neck. (Id. at #959 (citing State Ct. R., Doc.

7, #105)). In short, even if admission of character or propensity evidence at trial can

sometimes be so egregious as to deny a defendant fundamental fairness, in this case,

Morgan has not shown that the evidence at issue was so important to the jury’s

determination as to support a constitutional claim.

The Court thus finds that Morgan’s habeas petition lacks merit. Because of the

lack of legal support for Morgan’s underlying constitutional claims, and because the

record shows that Morgan did not fairly present those claims to the state courts, the

Court also determines that reasonable jurists would not disagree with the Court’s

conclusions. Accordingly, the Court will also deny Morgan’s request for a certificate

of appealability. (See Obj., Doc. 14, #972).

CONCLUSION

For the reasons above, the Court ADOPTS the Magistrate Judge’s Report and

Recommendations (Doc. 13) and OVERRULES Morgan’s Objection (Doc. 14). The

Court DISMISSES WITH PREJUDICE Morgan’s Petition for a Writ of Habeas

Corpus (Doc. 1), and CERTIFIES that an appeal of this Order would not be taken in

good faith. The Court therefore DIRECTS the Clerk to enter judgment and

TERMINATE this case on its docket.

SO ORDERED.

December 1, 2021

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE