Opposition Brief — Farris Genner Morris, Petitioner v. Tennessee

NO. 18-6624

IN THE

SUPREME COURT OF THE UNITED STATES

FARRIS GENNER MORRIS,

Petitioner,

Vv.

TENNESSEE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE TENNESSEE COURT OF CRIMINAL APPEALS

RESPONDENT’S APPENDIX

HERBERT H. SLATERY III

Attorney General and Reporter

State of Tennessee

ANDREE SOPHIA BLUMSTEIN

Solicitor General

LESLIE E. PRICE

Senior Assistant Attorney General

Criminal Appeals Division

Counsel of Record

P.O. Box 20207

Nashville, Tennessee 37202-0207

Leslie.Price@ag.tn.gov

(615) 532-7358

Counsel for Respondent

CAPITAL CASE

Appendix I:

Appendix 2:

APPENDIX

TABLE OF CONTENTS

Trial Court Dismissing Motion to Re-Open Post-Conviction Petition.............. 1

Sixth Circuit Order Denying Second Habeas Petition

APPENDIX 1

Trial Court Dismissing Motion to Re-Open Post-Conviction Petition

IN THE CIRCUIT COURT FOR MADISON COUNTY, TENNESSEE

DIVISION Ii &

FARRIS GENNER MORRIS, ) Wy

Petitioner ) an : e

) No. C01-50

Vv. ) Capital Case

) Post-Conviction

STATE OF TENNESSEE, )

Respondent. )

ORDER DENYING “MOTION To REOPEN POST-CONVICTION PETITION”

1, Introduction

This matter is before this Court on Petitioner's May 18, 2017, motion to reopen

his petition for post-conviction relief. Petitioner, Farris Morris, by and through counsel,

has filed this motion to reopen pursuant to Tenn. Code Ann, § 40-30-1 17(8)(1) claiming

he Is entitled to relief petition based upon a new rule of law as announced in the United

States Supreme Court Opinion in Foster vy, Chatman, 578 U.S. — 136 S. Ct. 1737

reopen,

ll. Procedural History’

A. Trial

A Madison County Jury convicted Petitioner of two counts of first degree murder

' The Hon, John Franktin Murchison, retired Judge of Cirovit Court Division I, presided over the .

petitioner's trial and post-conviction proceedings. The undersigned Judge disposed of the petitioner's

earlier motion to reopen after the current presiding Judge of Division |I, the Hon. Don Allen, recused.

for the’ September 17, 1994 killings of Charles Ragland and the fifteen-year-old female

cousin of Mr. Ragland’s wife. After a sentencing hearing, the jury sentenced Petitioner

to life without parole for Mr. Raglano’s killing and to death for the minor victim's murder,®

The Tennessee Supreme Court affirmed Petitioner's convictions and sentences, See

State v. Morris, 25 S.W.3d 788 (Tenn. 2000).

B. Post-Conviction

Mr. Morris subsequently filed a timely petition for post-conviction relief. Following

an April 2004 evidentiary hearing, the post-conviction court denied relief in January

2005. The Court of Criminal Appeals affirmed the judgment of the post-conviction court,

and the Tennessee Supreme Court denied Mr. Morris’ application for permission to

appeal. See Farris Genner Morris, Jr., v. State, No. W2005-00426-CCA-R3-PD (Tenn.

Crim. App. Oct. 10, 2006), perm. app. denied (Tenn. Feb. 26, 2007).

In June 2016, Mr. Morris filed a motion to reopen his post-conviction petition

based on the United States Supreme Court's opinions in Obergefeil y. Hodges, 135 §,

Ct 2584 (2015), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016), and Justice

Breyer's dissenting opinion in Glossip v. Gross, 135 S. Ct. 2726 (2015). This Court

summarily dismissed the motion to feopen on August 17, 2016. Petitioner

unsuccessfully sought permission to appeal to the Court of Criminal Appeal. See Farris

Genner Morris v. State, No. W2016-01887-CCA-R28-PD (Tenn, Crim. App. Nov. 1,

2016). Petitioner did not seek permission to appeal from the Court of Criminal Appeats’

? Although the name of the female victim appears in several opinions filed by the Tennessee appellate

courts, this Court will not Identify the victim here as she was a minor.

° The jury also found the Petitioner guilty of raping Mr. Ragland’s wife. The trial court imposed a

five year sentence for this offense poe hwenly.

order,

C. Federal Habeas Corpus

In April 2007, Mr. Morris filed a timely petition for writ of habeas corpus in the

United States District Court for the Westem District of Tennessee. After several years’

worth of proceedings, the District Court granted the petition in Part, denying Petitioner

relief as to the guilt/innocence phase of trial but granting Petitioner a new sentencing

hearing. Both parties appealed. On appeal, the Shah Circuit reversed the District Court’s

findings as to the penalty phase, reinstating Petitioner's death sentence. Morris v.

Carpenter, 802 F.3d 825 (8th Cir. 2015). The Sixth Circuit subsequently denied

Petitioner's motion for an en banc rehearing. The United States Supreme Court denied

certiorari on October 3, 2046, and denied a petition to rehear on November 28, 2016

On November 8, 2016, Petitioner filed @ motion to alter or amend the Judgment in

the federal habeas corpus case, On March 13, 2017, the United States District Court for

the Westem District of Tennessee denied the petitioner's motion.* The District Court

denied a certificate of appealability (COA) on May 18, 2017.5 Petitioner has announced

his intent to seek a COA directly from the Sith Circuit Court of Appeats.®

lit. Applicable Law: Motions to Reopen

* Farris Genner Morris v, Bruce Westbrooks, Warden, No, 07-1084-JDB-egb (W.p, Tenn. Mar. 13, 2017)

(hereinafter “Morris Order Denying Motion to Alter or Amend Judgment’),

* See Faris Genner Moris v. Bruce Westbrooks, Warden, No. 07-1084-JDB-egb, "Order Denying

Application for a Certificate of Appealabllity, Certifying that an Appeal Would Not Be in Good Falth® (W.D.

Tenn. May 18, 2017). :

* See Faris Genner Morris v. Bruce Westbrooks, Warden, No. 16-6661, Petitioner's "Notice of Intent to

File Motion to File Application for Certificate of Appealabliity within 90 Days or by September 7, 2017,” at

1 (6th Cir, June 9, 2017)

3

The Tennessee Supreme Court has summarized the statutes governing motions

to reopen:

“must

Under the provisions of the Post-Conviction Procedure Act, @ petitioner

Petition for post-conviction relief... within one (1) year of the final action of

the highest state appellate court to which an appeal is taken... * Tenn. Code

Ann, § 40-30-202(a), Moreover, the Act “contemplates the filing of only one (1)

Petition for post-conviction relief.” Tenn. Code Ann. § 40-30-~202(c), After a

post-conviction Proceeding has been completed and relief has been denied, .. .

40-30-217." Id. These limited circumstances include the following:

or the United States Supreme Court establishing a Constitutional

right that was not recognized as existing at the time of trial; [and)

[...]

(4) It appears. that the facts underlying the claim,. if true,

would establish by clear and convincing evidence that the

petitioner is entitled to have the conviction set aside or the

sentence reduced,

(Citing Tenn. Code Ann. § 40-30-217(a)(1) [and] (4)) (now Tenn. Code Ann, §

40-30-117(a)( 1) [and] (4)). The Statute further states:

Harris v. State, 102 S.W.3d 587, 590-91 (Tenn. 2003) (alterations added). Foster was

decided May 23, 2016, so Petitioners May 19, 2017 motion fs timely,

The post-conviction Statutes further provide

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@ new rule of constitutional criminal law Is announced if the result Is not dictated

by precedent existing at the time the petitioner's conviction became final and

ordered liberty.

Tenn. Code Ann. § 40-30-1922 ‘Whhen a new substantive rule of constitutional law

controls the outcome of a case, the Constitution requires state collateral review courts

to give retroactive effect to that rule.” Montgomery y. Louisiana, 577 U.S. __, 136 S,

Ct. 718, 729 (2016).

A motion to reopen “shal! be denied unless the factual allegations, if true, meet

the requirements of [Tenn. Code Ann. § 40-30-117](a).” Tenn. Code Ann. § 40-30-

117(b) (emphasis added),

IV, Analysis

A. Patitioner's Claims Under Foster v. Chatman

Petitioner asserts he is entitled to rellef under the United States Supreme Court’s

opinion in Foster v, Chatman, 578 U.S, —. 136 S. Ct. 1737 (2016). According to

Petitioner, Foster establishes a new rule of law which is retroactive to Mr. Morris’ case

and entities him to relief, because “the prosecution exercised a peremptory strike

motivated in substantial part by discriminatory intent."” Petitioner summarizes the factual

grounds giving rise to this motion to reopen as follows:

Prosecution, however, did not strike similar white Jurors who had relatives with

T Motion to reopen at 4.

drug or alcohol problems, including Tommy Bowman who had a daughter with a

drug problem and Teresa Crouse, who had a nlece with an alcohol problem.

Motion to reopen at 4-5 (citatlons to exhibits omitted),® Although unclear from

Petitioner's motion to reopen, it appears trial counsel did not ralse a race-based

objection to the State's challenge of Mr, Ingram.®

Petitioner’s argument he is entitled to a new trial concludes,

jurors Bowman and Crouse, the strike was "motivated In substantial part by

discriminatory intent." Foster, 580 U.S. at — 136 S. Ct. at 1754, This reason

supporting the strike js discriminatory, given the prosecution's disparate

treatment of white jurors.” The prosecution's strike of Ingram thus violated Farris

Morris’ right to due Process and equal protection under the Fourteenth

Amendment, and he is thus entitled to relief under Foster.

Motion te reopen at 5.

B. Pre-Foster History of United States Supreme Court Precedent Regarding Race-

Based Jury Challenges

by Gaye Nease, an Investigator with the Federal Public Defender’s Office (who represents Petitioner in

federal court), regarding the races of the Jurors at Issue (exhibit 1); the State’s Jury selection notes

regarding the stricken juror (exhibit 2); and selected pages from the volr dire transcript of the two white

jurors mentioned in Petitioner's motion (exhibit 3: Juror Bowman; exhibit 4: Juror Crouse), :

° See Morris Order Denying Motion to Alter or Amend Judgment, Supra note §, at 28 (In motion to alter or

amend federal habeas Judgment, Petitioner argued trial counsel was ineffective based on “his counsel's

failure to challenge the striking of Ingram as pretextual and race-based."),

” The footnote provides,

to be discriminatory, Thus, the primary reason for striking Ingram (knowledge of persons

with substance abuse problems) proves that the strike was “in substantial part" motivated

by discriminatory intent, which Is all that Foster requires,

Original footnote In motion to reopen at 6 n.4

In 1992, the Tennessee Supreme Court summarized two benchmark United

States Supreme Court cases which provided (as of Petitioner's trial date) the Prevalling

legal standard for determining whether a juror challenge was impermissibly based on

racial motives:

could not use peremptory challenges deliberately to exclude Prospective Jurors

on account of their race, The Court found that racially-motivated exclusions .

only by demonstrating that the prosecutor had systematically used peremptory

challenges against black venirepersons over a period of time. /d, at 227, 85 S,

Hailed at the time for recognizing that the sanciity of the peremptory

challenge must give way in the face of racially-imbalanced Jurles, the Supreme

Court ultimately recognized in addition that the Swain approach was too cautious

mind to discriminate,’ * /d, (quoting Avery v. Georgla, 345 U.S, 559, 562, 73 801,

892, 97 L. Ed. 1244 (4 953)). Third, the defendant must show that these facts and

case of purposeful discrimination, the burden shifts to the prosecution to prove a

raclally-neutral reason for excusing the jurors in question. /d. This explanation

"' Batson v, Kentucky, 476 U.8. 79 (1988).

must be based on something more than Stereotypical assumptions, but i need

not rise to the level required to justify the exercise of a challenge for cause, /d. at

97, 106 S, Ct. at 1723,

Finally, Batson requires the trial court fo weigh the evidence presented by

both sides and decide whether the prosecution engaged in purposeful

discrimination, in violation of the defendant's equal protection rights. /d. at 98,

106 S. Ct. at 1724. If the trial court determines that the facts establish a prima

facie case of ‘purposeful discrimination and the prosecutor does not come

forward with a neutral explanation, the defendant's conviction must be reversed.

Id. at 100, 106 S. Ct. at 1725,

State v. Ellison, 841 S.\W.2q 824, 825-26. (Tenn. 1892). Additionally, In 1994 “the United

States Supreme Court modified Batson by eliminating the requirement that the

defendant and any wrongfully excluded jurors must be of the same race,”

(citing Powers v. Ohio, 499 U.S. 400, 415-16 (1991),

Id. at 826

Twenty years after Batson, the Tennessee Supreme Court offered this analysis

of the Batson test in light of evolving Supreme Court jurisprudence:

Al the outset, the defendant must establish a prima’ facle case of purposeful

discrimination. In doing 80, the defendant may rely “solely on evidence

value but must examine the prosecutor's challenges in context to ensure that the

reason Is not merely pretextual, See Miller-El v. Dretke, 645 U.S, 231, 125 S. Ct.

8

2317, 162 L.Ed.2d 196 (2005) ("Miller~E/ II ”). In that case, the Court reiterated

that "the rule in Batson provides an opportunity to the prosecutor to give the

reason for striking the juror, and It requires the judge to assess the plausibility of

that reason in light of all evidence with a bearing on it.” /d. at 2334. If the trial

State v. Hugueley, 185 S.W.3d 356, 368-69 (Tenn. 2006),

C. Foster ,

In Foster, a federal habeas corpus proceeding involving a Georgia death row

inmate, the United States Supreme Court reversed conclusions reached by various

State and federal courts and concluded the prosecution's strikes of two prospective

black Jurors were impermissibly based on race, despite the prosecution’s purportedly

race-neutral explanations. See Foster, 136 S. Ct. at 1785. The evidence upon which the

Court based Its opinion was contained In large part in the Prosecution’s jury selection

notes, which Mr. Foster had obtained through Georgia ‘Open Recofds Act requests and

which were introduced at the state habeas corpus hearing. /d. at 1743-47. Regarding

the applicability of these notes to the Batson issue in Mr. Foster's case, the Court

stated,

Despite questions about the background of particular notes, We cannot accept

the State's invitation to blind ourselves to their existence. We have “made it clear

that in considering a Batson objection, or in reviewing a ruling claimed to be

Batson error, all of the circumstances that bear upon the issue of racial animosity

must be consulted.” Snyder lv. Louisiana), 552 U.S, [472], 478 [(2008)}. As we

have said In a related context, ‘[djetermining whether invidious discriminatory

purpose was a motivating factor demands a sensitive Inquiry into such

circumstantial . . . evidence of intent as may be available.” Arlington Heights v.

Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977),

Foster, 136 S. Ct. at 1748.

After reviewing the prosecution’s notes on prospective black jurors in Foster's

case, the Court observed two black jurors were excused after State challenges based

upon reasons which were not used by the State to challenge non-black jurors who

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actually possessed the Shortcomings Identified in challenging the black panelists, The

State had argued throughout the history of Mr. Foster’s case that these challenges were

not race-based, and the courts had, up to this point, largely agreed. The Supreme

Court, however, rejected the State's reasoning. See id. at 1749-84, The Court

concluded:

Throughout all stages of this litigation, the State has strenuously objected

that “race [was] not a factor’ in its jury selection Strategy. App, 41 (pretrial

hearing); but see /d., at 120 ([prosecutor] testifying that the strikes were "based

facts are an attempt to discredit the prosecutor. . . . The State and this

community demand an apology.” (brief In opposition to new trial)).

The contents of the prosecution’s file, however, plainly belie the State's

clalm that it exercised its strikes in a “color-blind” manner. App, 41, 60 (pretrial

hearing). The sheer number of references to race in that file Is arresting. The

Jurors in order to properly defend against any suggestion that decisions regarding

[Its] selections were pretextual.” Brief for Respondent 6, Batson, after all, had

come down only months before Foster's trial, The prosecutors, according to the

State, were uncertain what sort of showing might be demanded of them and

This argument falis flat. To begin, It "reeks of afterthought,” Miller-El, 545

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U.S,,-at 246, 125 S .Ct, 2317 having never before been made in the nearly 30-

year history of this litigation: not in the trial court, not in the state habeas court,

and not even in the State's brief in opposition to Foster’s petition for certiorari.

In addition, the focus on race in the prosecution's file plainly

demonstrates a concerted effort to keep black prospective jurors off the jury. The

State argues that it “was actively seeking a black juror.” Brief for Respondent 12;

list. See, @.9., id., at 253. An “N* was also noted next to the name of each black

prospective juror on the list of the 42 qualified prospective jurors; each of those

names also appeared on the “definite NO’s" list, See Id,, 299-301. And a draft

affidavit from the prosecution's Investigator stated his view that “[f it comes

down to having to pick one of the black jurors, [Marilyn] Garrett, might be okay.”

Id., at 345 (emphasis added); see also /bid. (recommending Garrett ‘if we had fo

pick a black juror’ (emphasis added)). Such references are inconsistent with

The State’s new argument today does not dissuade us from the

conclusion that its prosecutors were motivated in substantial part by race when

they struck Garrett and Hood from the jury 30 years ago, Two peremptory strikes

on the basis of race are two more than the Constitution allows.

Foster, 136 S. Ct. at 1754-55 (footnotes omitted; some alterations added).

D. Application to Petitioner's Case

Specifically, Mr. Morrie argues that, just as in Foster, a black Prospective juror in

Petitioner's case (Mr. Ingram) was excused for reasons which were motivated in

Substantial part by discriminatory intent. As in Foster, Petitioner cites the notes

generated by Madison County prosecutors as evidence of the State's discriminatory

intent In exercising Its peremptory challenge. Petitioner agues the reasons reflected In

the State's notes for excusing Mr. Ingram reflected discriminatory Intent because the .

State did not challenge two white jurors who, like Mr. Ingram, indicated a history of drug

and alcoho! issues jn their families.

Regarding the statutory provision which would allow his post-conviction

Proceedings to be opened—Tennessee Code Annotated section 40-30-117(a)(1)—

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Petitioner states “Foster itself establishes that Foster involves a new rule or law,

retrospectively applicable in a motion to reopen.”"? However, Petitioner offers no

argument or citation to authority to Support this statement,

The Court is unable to concur with Petitioners contention Foster announced a

new rule of law which must be applied retroactively. First, Tennessee's appellate courts

appear to take a narrow view of what constitutes a “new constitutional right” relative to

motions to reopen. In Van Tran y. State, 66 S.W.3d 790 (Tenn. 2001), the Tennessee

Supreme Court concluded the execution of persons who were then deemed “mentally

retarded” (today defined by statute as “intellectually disabled”) violated constitutional

protections against cruel and unusual punishment. Van Tran resulted from a mation to

reopen post-conviction proceedings; the Supreme Court concluded Its holding was a

new constitutional right warranting retroactive application:

A case “announces a new rule when it breaks new ground or imposes a

new obligation on the States or the Federal government.” Teague v. Lane, 489

U.S. 288, 301, 109 S .Ct. 1060, 1 070, 103 L.Ed.2d 334 ( 1989) (citations omitted)

In other words, “a case announces a new rule if the result was not dictated by

The United States Supreme Court has said that a new rule of federal

constitutional law is to be applied in cases on collateral review only if It (1) places

the trial." Meadows v. State, 849 S.W.2d at 755; see also Tenn. Code Ann, § 40-

30-222 (1997) (citing the Teague standard for retroactivity). .

In deciding Penry,” the United States Supreme Court recognized that a

holding that the Eighth Amendment prohibited the execution of mentally retarded

persons would be a new rule because It would * ‘brealk] new ground’ and would

* Motion to reopen at 2,

** Penry v. Lynaugh, 482 U.S. 302 (1989),

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impose a new obligation on the States and

the Federal Government.” Penry v.

Lynaugh, 492 U.S, at 329, 109 at 2952 (alteration In original) (citations omitted),

The Court also said that such a rule would apply retroactively on collateral

review:

offense, Thus, if we held ... that the Eighth Amendment prohibits

the execution of mentally retarded persons ... regardless of the

procedures followed, such a rule would fall under the first

exception to the general rule of nonretroactivity and would be

applicable to defendants on collateral review,,

Id. at 330, 109 S, Ct. at 2953,

We conclude that our holding under article |, § 16 of the Tennessee

Constitution likewise constitutes a new rule, This Is an issue of first Impression by

Van Tran, 66 S.W.3d at 810-11.

Several death row inmates then raised the intellectual disability issue via a

motion to reopen post-conviction Proceedings. One such inmate was Michael Coleman;

in deciding his appeal, the Tennessee Supreme Court addressed how the first

requirement of intellectual disability—a functional intelligent quotient of 70 or below at

the time of the offense—could be proven by means other than a raw test score. See

Coleman v. State, 341 S.W.3d 221, 240-53 (Tenn. 2011). Before Coleman was

released, a fellow death row Inmate, David Keen~who did not raise an intellectual

disabllity olaim at trial, on direct appeal, or In his initial post-conviction proceedings—

filed a motion to reopen his post-conviction proceedings after he received a score of 67

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on a February 2010 {Q test. See Keen v. State, 398 S.\W.3d 594, 598 {Tenn. 2012).

Initially, Mr. Keen argued the 1.Q, test result constituted “actual innocence” of the death

penalty and, therefore, he was eligible to reopen his post-conviction action under TCA

section 40-30-11 7(a)(2). id. The trial court dismissed the petition, concluding “actual

innocence” under the post-conviction Statute “did not encompass ineligibility for the

death penalty under” the intellectual disability statute, Jo at 598. While Mr. Keen's

appeal from that ruling was pending, Coleman was issued; therefore, Mr. Keen added to

his appeal a claim that Coleman “announced a new rule of constitutional criminal law

which required retroactive application.” The Court of Criminal Appeals rejected Mr.

Keen’s appeal as to both Issues, and the Tennessee Supreme Court affirmed the

denial. As relevant to this case, the Tennessee Supreme Court Stated the following in

concluding Coleman was not a new rule of constitutional law for Purposes of the motion

to reopen statute:

As we have already noted, our holding in Van Tran—that executing an

Intellectually disabled Person violated the state and federal constitutions-

could also consider other factors, such as the Flynn effect, the Practice effect,

standard error of measurement, malingering, and cultural differences, Coleman

v. State, 341 S.W.3d at 242 ph, 55, 247. Coleman recognized no new

constitutional right. The only constitutional right at issue In Coleman was the one

we had already announced ten years earlier in Van Tran. Mr. Keen cannot

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piggyback Coleman on top of Van Tran in order to reopen the one-year statutory

window for a constitutional rule that was articulated over a decade ago.

Because we have determined that Coleman's holding, which concerned

the interpretation and application of Tenn, Code Ann. § 39-13~203, was not a

constitutional ruling, there Is no need to inquire whether that holding would

qualify as a "new rule.” Nor is there any use in discussing retroactivity

. Soe

Teague v. Lane, 489 U.S. 288, 301, 307, 109 S. Ct. 1060, 103 L.Ed.2d 334

(1989); Meadows v. State, 849 S.W.2d at 751, 755; see also Tenn. Code

Ann. §

40-30-122 (2012). We also have no need to discuss whether Mr. Keen’s claim

would be subject to the "clear and convincing evidence” standard of Tenn. Code

Ann. § 40-30-1 17(a)(4) or, as he argues, the “colorable claim" standard of Tenn.

Sup. Ct. R. 28, §§ 2(H), 6(B)(6) that we applied in Howell v. State, 151 S.W.3d at

460-83, .

Keen, 398 S.W.3d at 608-09 (footnotes omitted). Footnote 13 from the Keen opinion,

contained in the second paragraph of the immediately preceding section,

noteworthy:

is particularly

The United States Court of Appeals for the Sixth Cirouit analyzed Coleman

shorlly after its release. Although the panel disagreed on whether Coleman

primarily interpreted Atkins or the Tennessee Code, both the majority and the

dissent viewed Coleman as a cla . The majority

characterized Coleman's holding as an “elucidation of the Atkins Standard under

Tennessee law." Black v. Bell, 664 F.3d 81, 92, 96, 101 (6th Cir.2011)

(remanding Black’s intellectual disability claim to the U.S. District Court for

reconsideration in light of Coleman). Judge Boggs, in dissent, offered a more

accurate assessment:

In Coleman v. State[,) . . . the Tennessee Supreme Court

construed a Tennessee statute prohibiting the execution of

[intellectually disabled] defendants under Tennessee |aw....

Coleman \s purely a construction of a state statute that makes

only fleeting references to Atkins ....

. .. Coleman decided how a Tennessee state statute should apply

to a Tennessee state court opinion [i.e., Van Tran ] declded under

the Tennessee state Constitution.

Black v. Bell, 664 F.3d at 107-08 (Boggs, J., dissenting).

new constitutional right, but “simply reiterated” Tennessee law); Mitchell v. Stato,

No. M2011-02030-CCA-R3-PC, 2012 WL 2306294, at *2~3 (Tenn. Crim. App.

16

‘et

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*2-3 (Tenn, Crim. App. Oct. 19, 2004) (finding that Dixon v. Holland, 70 S W.3d

33 (Tenn.2002), rather than announcing a new constitutional right, clarified

existing law).

Keen, 398 S.W.3d at 609 n.13 (emphasis added).

In the instant case, this Court concludes Foster, like Keen, did not announce a

new rule of constitutional law but rather could be seen as “explaining,” “clarifying,” or

“applying” well-settled rules of law that had been announced by Batson and its progeny.

Foster's “motivated in substantial part by discriminatory intent” language first appeared

in Snyder v. Louisiana, which was filed eight years before Foster, and the comparative

juror analysis upon which Petitioner relies in making his claims was applied by the

United States Supreme Court in Miller-el v. Dretke, filed three years before Snyder. The

principles of law upon which Petitioner relles, therefore, are not “new” within the

meaning of the post-conviction statute. Furthermore, numerous State and federal courts

have concluded Miller-E/ and Snyder did not announce new constitutional rules." If the

cases upon which Foster is based would not entitle Mr. Morris to reopen his post-

conviction petition, then it stands to reason Foster Is similarly unavailing to Petitioner.

“ See @.g., Hooper v. Ryan, 729 F.3d 782, 786 (7th Clr, 2013) ("to the extent that Miller-E7 and other

decisions elucidate Batson they are not ‘new rules’ for the Purpose of Teague.”); United Slates v. Davis,

809 F.3d 683, 694 (6th Cir, 2010) (Snyder “holding did not change the law of review of peremptory

challenges”; Clroult Court “reject{ed]" petitioner's “attempts to mischaracterize Snyder’); Golphin y.

Branker, 519 F.3d 168, 188 (4th Cir. 2008) ("Miller-El I did not alter Batson claims in any way...

Subsequent fo Miller-El //, the Court has retained and continued to apply Batson's three-step process.”):

Impose “upon the state and federal courts any new obligation under the existing Batson tubric."); People

v. Davis, 899 N.E.2d 238, 250 (Ill. 2008) (Snyder and Miller-El "do not represent a change In the area of

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Finally, the Court notes the Federal District Court's order denying Petitioner's

motion to alter or amend briefly addressed Petitioners claim as to Mr. Ingram within an

ineffective assistance of counsel context.’® This Court will not review the District Court's

findings, as such a review would involve reviewing the merits of Petitioner's current

Claim, and this Court concludes Petitioner's motion may be dismissed without reviewing

the merits, Also, the federal motion alleged ineffective assistance of counsel, while the

current motion attacks the State's exercising of what Petitioner contends was an

improper race-based peremptory challenge. However, this Court notes the District Court

reviewed the petitioner's Issue by citing solely to Batson. Foster, although decided in

2018, was not mentioned in the 2017 order, nor were Snyder or Miller-El. The District

Court's order further reinforces this Court’s conclusion Batson remains the prevailing

law In assessing whether juror challenges were impermissibly race-based, and that law

was not affected by Foster,

Petitioner is not entitled to relief,

V. Conclusion

For the reasons stated above, Mr. Morris’ motion to reopen his petition for post-

conviction relief based on Foster v, Chatman is DENIED, Mr. Mortis is indigent, so any

costs associated with these proceedings are taxed to the State.

-

IT IS SO ORDERED this the 3 | & day of , 2017,

Ci. (ht

Kyle i Cou Judge

Clrcult Court, Division til

** See Morris Order Denying Motion to Alter or Amend, supra note 5, at 27-30,

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CERTIFICATE OF SERVICE

| hereby certify the foregoing has been served upon the following pereons

by U.S. Mail on this, the 2 day of August, 2017:

Mr. Al Earls

Office of the District Attomey General

PO Box 2826

Jackson TN 38302

Ms, Kimberly Hodde

40 Music Square E.

Nashville TN 37203

Clerk / Deputy

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Appendix 2

Sixth Circuit Order Denying Second Habeas Petition

19

Case: 18-5626 Document: 15-1 Filed: 11/13/2018 Page: 1

No. 18-5626

FILED

UNITED STATES COURT OF APPEALS Nov 13, 2018

FOR THE SIXTH CIRCUIT DEBORAH 8S. HUNT, Clerk

)

)

In re: FARRIS GENNER MORRIS, )

) ORDER

Movant. )

)

)

Before: BOGGS, SILER, and CLAY, Circuit Judges.

Farris Genner Morris, a Tennessee prisoner under sentence of death, moves for an order

authorizing the district court to consider a second or successive petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254, In his application, Morris argues that the Supreme Court’s

decision in Foster v. Chatman, 136 S. Ct. 1737 (2016), entitles him to relief on his claim that the

prosecution struck potential juror Savanah Ingram because of his race.

In 1996, Morris was convicted of murdering Charles Ragland and Erica Hurd and raping

Angela Hurd. He received a death sentence for the first-degree murder of Hurd, a sentence of

life without parole for the murder of Ragland, and twenty-five years of imprisonment for

aggravated rape. The Tennessee Supreme Court affirmed Morris’s convictions and sentences.

State v. Morris, 24 S.W.3d 788 (Tenn. 2000). The Tennessee Court of Criminal Appeals

affirmed the denial of Morris’s post-conviction petition decision. Morris v. State, No.

W2005-00426-CCA-R3-PD, 2006 WL 2872870 (Tenn. Crim. App. Oct. 10, 2006).

Morris filed a pro se petition for a writ of habeas corpus in April 2007, and counsel filed

an amended petition in January 2008. The district court ruled that Morris had received

ineffective assistance of counsel in the sentencing phase and denied his other claims. We

affirmed the district court’s decision to deny Morris’s guilt-phase claims, vacated the district

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court’s decision to grant relief on his sentencing-phase claims, and remanded the case to the

district court for denial of the writ. Morris v. Carpenter, 802 F.3d 825, 845 (6th Cir. 2015), cert.

denied, 1378. Ct. 44 (2016).

Morris filed a motion to alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e)

after the district court denied his petition. He argued that he had not received application of

Martinez v. Ryan, 566 U.S. 1 (2012), to his substantial claims of ineffective assistance of

counsel, including the claim that counsel failed to raise a claim under Batson v. Kentucky, 476

U.S. 79 (1986), claim regarding Ingram. Morris later filed a motion to amend or correct his

motion to alter judgment. The district court denied Morris’s motions. On appeal, Morris

requested that this court certify, among other claims, the claim that counsel ineffectively failed to

object to the race-based exclusion of juror Ingram. We denied Morris a certificate of

appealability. Morris v. Mays, No. 16-6661 (Mar. 9, 2018) (order).

On June 18, 2018, Morris filed a motion for leave to file a second or successive habeas

corpus petition. He argues that the prosecution’s strike of African-American prospective juror

Ingram was motivated in substantial part by discriminatory intent, and contends that the Supreme

Court’s decision in Foster states a new rule of law made retroactive to cases on collateral review.

“A claim presented in a second or successive habeas corpus application under section

2254 that was presented in a prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1). To

be entitled to an order authorizing the district court to consider a second habeas corpus petition,

the applicant must make a prima facie showing that the claim relies on: (1) a new rule of

constitutional law made retroactive to cases on collateral review by the Supreme Court that was

previously unavailable; or (2) newly discovered evidence which could not have been discovered

previously through the exercise of due diligence and which would be sufficient to establish, by

clear and convincing evidence, that no reasonable factfinder would have found the applicant

guilty. See 28 U.S.C. § 2244(b)(2), (b)(3)(C); In re Tibbetts, 869 F.3d 403, 405 (6th Cir. 2017),

cert. denied, 138 S. Ct. 661 (2018). A prima facie showing means sufficient allegations of fact

and some documentation that would warrant fuller exploration in the district court. In re

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Campbell, 874 F.3d 454, 459 (6th Cir.), cert. denied, 138 S. Ct. 466 (2017). The Anti-Terrorism

and Effective Death Penalty Act does not define “second or successive.” Courts apply the abuse

of the writ doctrine to determine whether a petition is second or successive. Stewart v. Martinez-

Villareal, 523 U.S. 637, 643-45 (1998); Campbell, 874 F.3d at 460. A numerically second

petition abuses the writ and is ‘second’ when it raises a claim that could have been raised in the

first petition. McCleskey v. Zant, 499 U.S. 467, 489 (1991); Tibbetts, 869 F.3d at 405. An

application that presents a claim that would have been unripe if it had been presented in an

earlier application is not second or successive. See Panetti v. Quarterman, 551 U.S. 930, 945

(2007); Stewart, 523 U.S. at 643-46.

Morris’s proposed petition is barred and would be an abuse of the writ because it raises a

claim that was presented in a prior petition. See 28 U.S.C. § 2244(b)(1); McCleskey, 499 U.S. at

489; Tibbetts, 869 F.3d at 405. In claim 24 of his amended petition, Morris alleged that the state

violated Batson by using a peremptory challenge to remove Ingram. The district court held that

Morris procedurally defaulted the claim by failing to present it in state court and had not

presented cause or prejudice to excuse the default. In claim 9N, Morris alleged that his trial

counsel failed to object when the prosecutor removed Ingram. The district court found that

Morris had not presented the claim in state court and had failed to demonstrate cause and

prejudice for the procedural default. As explained below, Foster is an application of Batson and

not the basis for a new claim. Since Morris presented his Batson claim in his previous petition,

his current petition is subject to dismissal under § 2244(b)(1).

Nor has Morris made a prima facie showing under § 2244(b)(2). Foster did not involve a

new tule of constitutional law, it has not been made retroactive to cases on collateral review, and

the rule it applied was previously available. Morris argues that the new rule of constitutional law

is that a petitioner on collateral review is entitled to relief if the prosecution struck a prospective

juror and the strike was “motivated in substantial part by discriminatory intent.” Foster, 136 S.

Ct. at 1754. The Foster opinion analyzed the petitioner’s claims under Snyder v. Louisiana, 552

U.S. 472 (2008), Miller-El v. Dretke, 545 U.S. 231 (2005), and Batson. Foster, 136 S. Ct. at

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1747, 1752. The Court quoted Snyder when it concluded that the prosecutor’s jury selection

notes showed that the strikes were “motivated in substantial part by discriminatory intent.” Id. at

1754 (quoting Snyder, 552 U.S. at 485). Foster applied the Court’s Batson precedent to the facts

of the case, and did not create a new constitutional rule.

Nor did the Court in Foster make a new rule retroactive to cases on collateral review.

Morris argues that because Foster was on collateral review, the Court necessarily made its ruling

retroactive to cases on collateral review. “[A] new rule is not ‘made retroactive to cases on

collateral review’ unless the Supreme Court holds it to be retroactive.” Tyler v. Cain, 533 U.S.

656, 663 (2001). The Court may also make a new rule apply retroactively when multiple

holdings logically dictate the retroactive nature of the new rule. Jd. at 668 (O’Connor, J.,

concurring); In re Watkins, 810 F.3d 375, 381 (6th Cir. 2015). The Court in Foster applied

Batson to a case on collateral review, but did not announce a new rule or hold it to be retroactive.

Even if Foster announced a rule that did not exist when Morris filed his first petition, that would

not make Foster retroactive on collateral review. See In re Coley, 871 F.3d 455, 457-58 (6th Cir.

2017). Morris has not identified any Supreme Court case or series of holdings demonstrating

that Foster made a new constitutional rule retroactive to cases on collateral review.

For the foregoing reasons, we DENY Morris’s motion.

ENTERED BY ORDER OF THE COURT

th Add

Deborah S. Hunt, Clerk

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