Petition for Writ of Certiorari — Jeffrey Morris, Petitioner v. Ricky D. Dixon, Secretary, Florida Department of Corrections

USCA11 Case: 21-13692

Date Filed: 04/21/2022

Page: 1 of 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 21-13692-J

JEFFREY MORRIS,

Petitioner-Appellant,

versus

SECRETARY, DEPARTMENT OF CORRECTIONS STATE OF FLORIDA,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Florida

ORDER:

Jeffrey Morris moves for a certificate of appealability in order to appeal the district court’s

denial of his 28 U.S.C. § 2254 habeas corpus petition. Morris’s motion for a certificate , of

appealability is DENIED because he has failed to make a substantial showing of the denial of a

constitutional right. See 28 U.S.C. § 2253(c)(2),

/

C-

UNITED STATES CIR^UIT^UDGE

Case 3:19-cv-04819-LC-MJF Document 23 Filed 09/20/21 Page 1 of 1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

JEFFREY MORRIS

CASE NO. 3:19-CV-4819-LC-MJF

VS

SECRETARY DEPARTMENT OF

CORRECTIONS

JUDGMENT

Pursuant to and at the direction of the Court, it is

ORDERED AND ADJUDGED that the amended petition for writ of habeas corpus

(Doc. 4), challenging the judgment of conviction and sentence in State of Florida v.

Jeffrey Todd Monris, Escambia County Circuit Court Case No. 2012-CF-3451, is

DENIED.

JESSICA J. LYUBLANOVITS

CLERK OF COURT

September 20.2021

DATE

t

/ Clerk

/s/ A'Donna Bridges.

Deputy Clerk: A'Donna Bridges

First District Court of Appeal

State of Florida

No. 1D18-478

Jeffrey Todd Morris,

Appellant,

v.

State of Florida,

Appellee.

On appeal from the Circuit Court for Escambia County.

Thomas V. Dannheisser, Judge.

June 28, 2019

Per Curiam.

We review the trial court order denying Appellant’s motion for

post-conviction relief under Florida Rule of Criminal Procedure

3.850.

Appellant was charged by amended information with (Count

1) sexual battery while in a position of familial authority, for

penetrating the vagina of the victim with his penis when the victim

was between age fifteen and seventeen, (Count 2) sexual battery

while in a position of familial authority, for penetrating the mouth

of the victim with his penis when the victim was between age

thirteen and seventeen, and (Count 3) lewd and lascivious

molestation on a victim under twelve years old, for forcing or

enticing the victim to touch him when she was between the ages of

six and eleven.

1

The attachments to the order on Appellant’s motion reflect the

following facts. At trial, the victim testified that Appellant, her

stepfather, made her touch his penis with her hands “two or three

times a week,” beginning when she was six or seven and continuing

until she was eighteen. The victim testified that the abuse

escalated: she stated she lost her virginity to Appellant when she

was fifteen, and that if she was on her period she would perform

oral sex. The victim testified that she eventually found out that

she was pregnant and gave birth to a baby that she then put up for

adoption. She identified Appellant as the person who impregnated

her. DNA evidence presented at trial established by a 99.99

percent probability that Appellant was the biological father of the

victim’s child.

Video of an interview between Appellant and law enforcement

was played at trial. During the interview, Appellant stated that,

when the victim was eighteen, she got drunk on New Year’s Eve

and asked him to rub her vagina; Appellant stated that he pushed

her away and told her to go to bed. At trial, however, Appellant

admitted to having sexual intercourse with the victim, his

stepdaughter, when she was eighteen, but never before.

Appellant’s daughter, the victim’s half-sister, who was

fourteen at the time of trial, testified that she lived with her father,

but “he didn't really pay attention to [her],” stating Appellant

largely ignored her and her younger brother. Appellant’s daughter

testified that Appellant focused most of his attention on the victim,

although she testified that she never saw anything that she

thought was inappropriate. Appellant’s daughter testified that

Appellant would occasionally send her and her brother outside to

play with the dog or clean the pool, but that the victim would not

be sent outside with them. Appellant’s daughter testified that she

would sometimes try to go back inside to get water, but he door

would be locked. Appellant’s daughter testified that, when she and

her brother would eventually be let back inside, she would see the

victim “washing her hands and crying.”

Appellant’s twelve-year-old son also testified that when his

mother was at work, and he and the victim were home with

Appellant along with Appellant’s daughter, Appellant would send

his own children outside and that his son would find the door

locked when he attempted to reenter.

2

The jury found Appellant guilty on all three counts, and the

court sentenced him to concurrent thirty-year sentences for Counts

1 and 2, and to life in prison for Count 3.

Appellant filed an amended motion for postconviction relief

under Florida Rule of Criminal Procedure 3.850 raising seven

grounds for relief. Pertinent here, Appellant claimed newly

discovered evidence, and attached an affidavit from Appellant’s

daughter in which she swore that she now did not believe that

Appellant had molested her sister. She stated that she felt she had

been “coached or brain washed” to take her mother and sister’s side

over her father’s, and that her mother “put a lot of things in [her]

head.” She stated that she had testified in court that her father

didn’t pay attention to her, and stated she now knows that his

attention was focused on the victim “because they were in a

relationship.” Appellant’s daughter stated that she felt she had

been obligated to protect her mother and sister, and stated that “I

think what my father did was very wrong, but in my heart I don’t

feel like he should be doing life for something he did not do

something their [sic] is no proof of.”

In his motion, Appellant also claimed that his trial counsel

was ineffective for failing to call Appellant’s parents and Ami

Morris as witnesses at trial, failing to go over the victim’s text

messages with Appellant, and failing to introduce a letter

Appellant wrote to his father in which he admitted having a sexual

relationship with his eighteen-year-old stepdaughter. Appellant

additionally raised two sentencing issues.

The postconviction court summarily denied the motion*,

finding that Appellant’s daughter’s recanted testimony would not

probably produce an acquittal on retrial and that Appellant could

not show prejudice on any of his ineffective assistance claims. This

timely appeal followed.

Analysis

‘The standard of review of a summary denial of a rule 3.850

motion is de novo.” McLin v. State, 827 So. 2d 948, 954 (Fla. 2002).

‘To uphold the trial court's summary denial of claims raised in a

* The postconviction court granted relief on sentencing claims

which are not at issue.

3

3.850 motion, the claims must be either facially invalid or

conclusively refuted by the recordPeede v. State, 748 So. 2d 253,

257 (Fla. 1999).

Appellant first argues that the lower court erred in denying

an evidentiary hearing regarding his claim of newly discovered

evidence, in the form of Appellant’s daughter’s recantation of

testimony regarding the victim. A defendant must meet two

requirements to obtain a new trial based on newly discovered

evidence: (1) “the evidence must not have been known by the trial

court, the party, or counsel at the time of trial, and it must also

appear that neither the defendant nor defense counsel could have

known of such evidence by the use of diligence”; (2) “the newly

discovered evidence must be of a nature that it would probably

produce an acquittal on retrial or yield a less severe sentence."

Davis v. State, 26 So. 3d 519, 526 (Fla. 2009). “Specifically,

recanted testimony that is alleged to constitute newly discovered

evidence will mandate a new trial only if (1) the court is satisfied

that the recantation is true, and (2) the recanted testimony would

probably render a different outcome in the proceeding.” Id,

Recanted testimony would not have altered trial’s outcome if it

would not have eliminated other evidence at trial supporting the

elements that the newly discovered evidence is offered to rebut.

Id. at 529.

Here, even if the court accepted the recantation as true, such

recantation could only potentially affect the daughter’s testimony

regarding what behavior she observed in the victim. The purported

recantation would not eliminate or diminish in any way the

testimony from the victim that Appellant continually sexually

abused her beginning when she was six or seven until she was

eighteen. At trial, Appellant’s daughter, the victim’s half-sister,

did not testify that she saw Appellant sexually abuse her halfsister. In fact, this witness testified she saw nothing inappropriate

occur with the victim and Appellant. And neither step-sibling

testified that they observed Appellant abusing the victim.

Appellant’s daughter testified that Appellant ignored her and

her brother in favor of the victim and would send her and her

brother outside, so he could be alone with the victim. The

purported recantation stated that Appellant’s daughter now

understands that Appellant paid attention to her and her younger

4

brother “in a different way” than he did to the victim, because he

and the victim “were in a relationship.” Appellant’s guilt was

established by evidence completely separate from this testimony,

and this recanted testimony would in no way render a different

outcome in the trial, especially in light of the victim’s detailed and

devastating testimony and the Appellant's trial testimony that

admitted he did have sexual intercourse with the victim, after

Appellant firmly denied such occurred in a pretrial interview.

Although Appellant’s trial admission claimed the intercourse

occurred after the victim’s eighteenth birthday, the admission was

obviously harmful to Appellant’s defense, because the

inconsistency diminished his credibility. The jury knew Appellant TK ^ 0 A* A,

denied that intercourse occurred but had to later explain the DNA

o^y

evidence. Thus, the record conclusively refutes Appellant’s claim PAWeA a<j tr \ g

on this ground; the asserted recantation could not have changed

cooS

floY

the outcome of the trial.

Osi'VC

Appellant next argues his counsel was ineffective for failing to

present Appellant’s mother and father and another defense

witness at trial, despite Appellant’s request. Appellant states that

these witnesses would have testified that they were around

Appellant in the time period that the offenses allegedly occurred

and never saw any improper behavior by Appellant towards the

victim.

To prove ineffective assistance of counsel, the defendant must

show (1) that counsel’s performance was deficient, and (2) that the

defendant was prejudiced by that deficient performance.

Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish

prejudice under Strickland, the defendant must demonstrate a

reasonable probability that the result of the proceeding would have

been different but for counsel's deficiency, Hoskins u. State, 75

So.3d 250, 254 (Fla. 2011). Appellant cannot show prejudice.

Appellant claims that these uncalled witnesses would have

testified that they never saw Appellant acting inappropriately

toward the victim. But testimony at trial established that the

abuse occurred when Appellant was left alone with the children,

and the testimony of the uncalled witnesses could not diminish the

credibility of the victim’s testimony because it wouldn’t rebut the

testimony that abuse occurred when the witnesses weren’t there.

Appellant’s ineffectiveness claim on this ground is therefore

5

o

meritless, and the postconviction court did not err in summarily

denying Appellant’s motion on this issue.

Appellant also argues that defense counsel should have more

thoroughly investigated allegedly deleted texts between the

Appellant and the victim, and the victim and her mother, but none

of these texts, even if they exist, would have produced a different

result. We need not decide if any of counsel’s actions were

deficient, if we determine that Appellant cannot show prejudice:

“Because Strickland requires that a defendant establish both

deficiency and prejudice, an appellate court evaluating a claim of

ineffectiveness is not required to issue a specific ruling on one

component of the test when it is evident that the other component

is not satisfied.” Lebron u. State, 135 So. 3d 1040,1052 (Fla. 2014).

To prevail on an ineffective assistance claim, “[t]he claimant must

demonstrate a likelihood of a different result that is ‘substantial,

not just conceivable.”’ Carter v. State, 225 So. 3d 881, 883 (1st DCA

2017) (quoting Harrington v. Richter, 562 U.S. 86,112,131 (2011)).

“In order to sufficiently undermine the court's confidence in the

outcome, a claimant ‘must rely on more than mere speculation.”’

Id. (quoting Derrick v. State, 983 So.2d 443, 462 (Fla. 2008)).

Appellant argues that if counsel had gone over the text

messages with him, he would have been able to use those texts to

challenge the credibility of the victim and of his wife. Appellant

argues that deleted texts from the victim to Appellant after the

victim had turned eighteen indicate that the victim wanted to have

consensual sex with Appellant. But this evidence would not rebut

the victim’s testimony that she and Appellant had sexual

intercourse before she turned eighteen.

Appellant argues that one omitted text message would have

indicated that the victim gave differing explanations as to why she

left her grandparents’ house in Orlando. The victim testified that

she left because Appellant would not let her mother leave her

house, but Appellant claims a text shows that the victim told her

aunt that she left early due to an argument with her grandmother.

But the text message would have in no way refuted the victim’s

testimony regarding the extensive sexual abuse the victim suffered

during the years in question.

6

Appellant argues that text messages indicate that he and the

victim's mother went on two dates in June 2012, once to the movies

and once to dinner, and Appellant could have used these text

messages to challenge the mother's credibility. But there is not a

reasonable probability that the outcome of the trial would have

been different even if the text messages had completely destroyed TU*.

u?oro

the mother’s credibility, which the texts would not have done, as cl el .v\c*/-cJccd ovi

Appellant's guilt was established by evidence entirely separate

*

from the mother’s testimony. Appellant cannot establish a

reasonable probability that the outcome of the trial would have

been different if he had been able to utilize the text messages at

trial. The trial court properly denied relief on this claim.

Appellant next argues that trial counsel was deficient for

failing to present at trial a letter that Appellant wrote to his father

in which he admits to having a sexual relationship with his

eighteen-year-old stepdaughter. Appellant argues that if counsel

had presented this letter, the State would have been prevented

from arguing that before trial, Appellant denied having a sexual

relationship with his stepdaughter.

However, as the

postconviction court correctly noted, the video of Appellant's

interview with law enforcement showed Appellant denied having

any sexual relationship with his stepdaughter. Even if the letter

had been presented at trial, the State still could have argued that

Appellant lied to law enforcement about not having a sexual

relationship with the victim. Appellant therefore cannot show a

reasonable probability that the outcome of the trial would have

been different if the letter had been presented. Appellant’s

ineffectiveness claim on this ground is therefore meritless, and the

postconviction court did not err in denying Appellant's motion on

this ground.

Appellant next argues cumulative error. The cumulative

effect of numerous errors in counsel’s performance may constitute

prejudice, but only where “confidence in the outcome of [the

defendant’s] original trial has been undermined and that a

reasonable probability exists of a different outcome.” State v.

Gunsby, 670 So. 2d 920, 924 (Fla. 1996). As stated above, even

assuming that counsel was deficient, Appellant cannot show a

reasonable probability that the outcome of the trial would have

been different, in light of the victim’s testimony, corroborating

circumstantial evidence, and the evidence demonstrating

7

Appellant did engage in sexual intercourse with the victim,

contracting his previous attempt to deny this fact. State v. Woodel,

145 So. 3d 782, 803 (Fla. 2014) ('Furthermore, because we do not

find multiple errors in this case, there is no cumulative error effect

that establishes prejudice”).

Affirmed.

ROBERTS and OSTERHAUS, JJ., concur; B.L. THOMAS, C.J., concurs

specially with opinion.

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

B.L. THOMAS, C.J., concurring specially.

I concur with the court’s opinion and write to provide context

to that opinion with additional facts from the record on Appellant's

direct appeal filed with this court. It is well established that an

appellate court may take judicial notice of its own files. See

Hillsborough Cty. Bd. of Cty. Com’rs v. Public Employees Relations

Comn, 424 So. 2d 132, 133 (Fla. 1st DCA 1982) (holding courts

may take judicial notice of their own records); see also, e.g., Loren

v. State, 601 So. 2d 271 (Fla. 1st DCA 1992) (stating that, in

reviewing the summary denial of a postconviction motion, this

court may take judicial notice of the direct appeal in its own

records). I acknowledge the tension between this principle and the

Florida Rules of Appellate Procedure, which define the record

following summary denial of a rule 3.850 motion as “the motion,

response, reply, order on the motion . . . and attachments to any of

the foregoing” and state that an order summarily denying an

appellant’s motion shall be reversed unless this record “shows

conclusively that the appellant is entitled to no relief.” Fla. R. App

P. 9.141(2)(A), (D).

Facially sufficient claims of ineffective assistance of counsel

require an allegation that the outcome of the movant’s trial would

have been different but for the claimed errors of counsel. In

reviewing such a claim, a postconviction court must necessarily

8

consider the entire record of the proceeding to make a

determination on ineffectiveness. Because these collateral actions

assert that a claimed error affected an entire trial, in many cases

such claims cannot truly be “conclusively refuted” without full

consideration of that trial. But, of course, rule 3.850 cannot be

construed to require attachment of the full trial transcript, see

Tillery u. State, 639 So. 2d 76, 77 (Fla. 1st DCA 1994), and I do not

suggest that postconviction courts should do so.

I do, however, think that where, as here, an appellate court

has a transcript of the full trial proceeding in its records, it may

take notice of these records in reviewing the lower court’s ruling

on the prejudice prong of an ineffective assistance claim. The

supreme court has stated that, because ineffective assistance

claims are mixed questions of law and fact that implicate a

constitutional right, appellate courts have an obligation to

“independently review” these claims. Stephens v. State, 748 So. 2d

1028, 1034 (Fla. 1999). The supreme court has further suggested

that, because of this obligation, “an appellate court’s review of a

trial court’s order denying an ineffective assistance claim requires

consideration of the entire record that was before the trial court.”

State v. Coney, 845 So. 2d 120, 140 (Fla. 2003) (Pariente, J.,

concurring specially). Stephens and Coney did not involve review

of a summary denial of an ineffectiveness claim, and Justice

Pariente's call to review the entire record may be read to pertain

only to a postconviction record following an evidentiary hearing.

But because appellate courts are obligated to independently

review mixed questions of constitutional magnitude, and because

the prejudice determination necessarily requires a consideration

of the entire proceeding by the postconviction court, it follows that

a court reviewing that determination can and should review the

entirety of that proceeding.

As such, I have taken notice of the record on Appellant’s direct

appeal and find the following facts useful in contextualizing

Appellant’s arguments and the portions of the trial transcript

attached by the postconviction court.

The victim’s mother testified that when she was married to

Appellant he did not give the same attention to their children as

he did to his step-daughter, the victim. The victim had no

boyfriends and was only allowed one girlfriend. The mother

9

became concerned and suspicious about Appellant’s relationship

with the victim. The victim’s mother began asking her daughter if

Appellant had touched her inappropriately. The victim at first

denied any inappropriate activity and would become “overly

animated” and just say Appellant was “mean.”

Appellant’s ex-wife testified she confronted Appellant with

her suspicions, but Appellant denied any inappropriate activity

and told her she was an “idiot” and “he had every right to be close”

to the victim. Appellant told the victim’s mother that he was closer

to the victim than their other children, because the victim was

older and called him “daddy” when she was four.

The victim’s mother testified that she and Appellant stopped

having sexual relations before she discovered a text on Appellant’s

phone that had not been sent out. She testified that she came

home that day and found the victim crying and saying she “hated”

Appellant. There was chaos in the home with all the children in

an uproar. The children had heard Appellant saying derogatory

comments on the phone about their mother. The victim’s halfbrother testified that when Appellant finished that conversation,

he gave an angry look at the victim and asked if she was mad

“because they didn’t hump today.”

When she examined Appellant’s phone, Appellant’s ex-wife

found the text which read “yeah, you didn’t rub your butt against

me last week.” The victim’s mother knew the text could not have

been intended for her. She confronted her daughter about the text,

who initially denied Appellant had been molesting her but then

covered herself in a blanket and said "yes.”

The mother, in an apparent state of shock and rage, testified

the next thing she remembered was standing in the room where

Appellant was sleeping and holding a gun in her hand. She didn’t

remember getting the gun but only holding the rifle to Appellant’s

head and screaming at him to wake up. The children, including

the victim, defused the scene and prevented any violence, and the

next thing the mother remembered was being outside and talking

to police.

The victim’s mother testified that she took all the children and

left the home. She later learned the victim was pregnant, and

Appellant was identified as the father. She also learned how long

10

the sexual activity between Appellant and the victim had

continued.

The victim, who was nineteen at the time of trial, testified that

she had known Appellant since she was four years old. He was a

father figure to her; she called him “dad.” The victim testified that

Appellant began molesting her when she was six or seven years

old and continued engaging in sexual activity with her until she

was eighteen years old. When asked why she had not reported the

sexual abuse earlier, she replied “I was scared.”

The victim testified that the abuse escalated. Appellant began

touching the victim and forcing her to put her mouth on his penis.

He would ejaculate on a towel or his stomach.

The victim testified she lost her virginity to Appellant when

she was fifteen. She told Appellant she did not want to have /Jo TV'Pto-V' ooky ^

intercourse with him, but he said it would be “fine.” Appellant had sV\e £Cxxy~e.c> ,

sexual intercourse with the victim “every Friday” or about two or

three times a month.

~Hvc,

p^ovWrS Doy

_

. .

_

£o

& hafptriZ'd. ujMcjwch'h too_s Uortoe. ?

The victim testified that Appellant was stricter with her than

*

with his own children. He would not allow her to have any close

friends, except one girlfriend. The victim testified that Appellant

told her if he found out she had a boyfriend, he would also “put a

bullet” in his head and “in her head too.”

The deputy who first responded to the scene described the

victim as crying hysterically and “very upset.” The victim’s mother

was crying “but not hysterically” but as if “she was blown away”

and “confused.”

A sheriffs investigator testified that he

interviewed the victim in the emergency room that night. The

victim “was crying, hiding her face behind her hands.” This

investigator also interviewed the Appellant.

The video of the interview between Appellant and the

investigator was played at trial. During the interview Appellant

waived his right to remain silent and right to counsel. The

investigator informed Appellant that there were accusations that

Appellant had engaged in sexual activity with the victim since she

was six years old and that he had sexual intercourse with the

victim “a week and a half ago.” Appellant denied this. He also

specifically denied he had sexual intercourse with the victim after

11

she turned eighteen years old. Appellant blamed the accusations

on relationship problems with the victim’s mother.

The foregoing facts further support the court’s opinion that

Appellant’s daughter’s recantation, the alleged failure to call

Appellant’s parents and Ami Morris as witnesses, and the alleged

failure to use Appellant’s letter to his father did not affect the

outcome of the trial and thus did not prejudice Appellant.

Appellant also claimed counsel was ineffective for failing to

properly use certain text messages to impeach State witnesses.

Appellant argues that one omitted text message would have

showed that the victim gave conflicting explanations as to why she

left her grandparents’ house. The victim testified that she left

because Appellant would not let her mother leave her house, but

Appellant claims a text shows that the victim told her aunt that

she left early due to an argument with her grandmother. In the

text in question, the victim told her aunt "Yeah mom was really

depressed and I missed her a lot and me and mammawl kind of got

in an argument but we’re fine now.” This text message is not

inconsistent with the victim’s testimony, as both indicate she left

her grandparents’ house because her mother was having problems.

This text message would not have refuted the victim’s testimony

that Appellant repeatedly sexually abused her throughout much of

her childhood.

At trial the victim’s mother testified that she and Appellant

had not had sexual relations in over a year before she was made

aware of the sexual abuse and testified that she and Appellant did

not ever go out on dates. Appellant argues that text messages 'Sbiyq+k 20\Z

indicate that, contrary to her testimony, he and the victim’s

mother went on two dates in June 2012, once to the movies and

once to dinner, and Appellant could have used this inconsistency

to challenge the mother’s credibility. However, the context of the

relevant testimony indicates that she meant she and Appellant

had not gone out recently, not that they had never gone on a date.:

As stated above, Appellant cannot establish a reasonable

probability that the outcome of the trial would have been different

if he had been able to utilize the text messages at trial. The

victim’s mother’s testimony was relatively brief, and the matters

involved in the text were essentially collateral the mother’s

testimony.

12

<