United States v. Morrison

1

UNITED STATES v. LEONARD MORRISON

Criminal Action No. 16-36

United States District Court, E.D. Louisiana

February 7, 2023

SECTION "S" (1)

ORDER & REASONS

MARY ANN VIAL LEMMON, UNITED STATES DISTRICT JUDGE.

IT IS HEREBY ORDERED that defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Rec. Docs. 722, 734) is DENIED.

BACKGROUND

This matter is before the court on Leonard Morrison's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. Having reviewed the entire record, the court finds that this matter can be resolved without an evidentiary hearing.

Defendant Leonard Morrison was charged in Count 1of the third superseding indictment with conspiring with his co-defendants to distribute and possess with the intent to distribute cocaine hydrochloride, heroin, and marijuana. Counts 2 and 7 charged Morrison with using a communications facility in connection with the conspiracy. Morrison was charged with possession with the intent to distribute cocaine hydrochloride and marijuana in Counts 27 and 28 respectively. Count 29 charged that Morrison possessed a firearm in furtherance of drug-trafficking crimes, and Count 30 charged that Morrison was a previously convicted felon in possession of a firearm.

Following a trial by jury, Morrison was acquitted of all charges except being a felon in possession of a firearm. Due to his designation as a career offender under the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA")^[1] and his criminal history category of VI Morrison's guidelines range was 235 to 293 months, with a 15-year statutory mandatory minimum. The court granted Morrison's request for a downward variance, and sentenced him to the mandatory minimum of 15 years. In granting the downward variance, the court explicitly referenced the fact that Morrison consented to a warrantless search, that he waived his Miranda rights, and that he voluntarily led the police to the gun in his bedroom closet and admitted to placing it there.

Morrison appealed his conviction and the suppression ruling. The United States Court of Appeals for the Fifth Circuit remanded the matter to this court for a specific credibility determination related to one of the court's findings on Morrison's motion to suppress. Following the court's making the necessary finding, the Fifth Circuit affirmed the conviction and sentence in all respects. In December 2021, the United States Supreme Court denied certiorari. Less than one year later, Morrison filed the instant motion under 28 U.S.C. § 2255 arguing that his conviction is invalid because he received ineffective assistance of counsel, and a supplement to the motion arguing that "new established case law"^[2] justified habeas relief. The motion is therefore timely. The government opposes the motion.

DISCUSSION

Legal Standard

Pursuant to section 2255, a prisoner in custody under a federal court sentence may seek relief on four bases: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence “is otherwise subject to collateral attack.” 28 U.S.C. § 2255. If the district court determines that a petitioner is entitled to relief under section 2255, the court “shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b). Relief under section 2255 “‘is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.'” United States v. Segler, 37 F.3d 1131, 1133 (5th Cir. 1994) (quoting United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992) (per curiam)).

In considering a section 2255 petition, the court, after reviewing the full record, must determine whether an evidentiary hearing is necessary. Rules Governing Section 2255 Proceedings, Rule 8. Courts are required to hold an evidentiary hearing unless “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). An evidentiary hearing is not required if the petitioner fails to produce any “independent indicia of the likely merit of [his] allegations.” United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006) (quoting United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998)). The petitioner bears the burden of establishing his claims by a preponderance of the evidence. Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980).

Ineffective Assistance of Counsel

Morrison contends that his constitutional rights were denied due to ineffective assistance of counsel. To succeed on a claim of ineffective assistance of counsel, a petitioner must show: (1) that his counsel's performance was deficient; and (2) that his counsel's deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). A claim of ineffective assistance of counsel is defeated if the petitioner fails to establish either deficient performance or resulting prejudice. United States v. Chavez, 193 F.3d 375, 378 (5th Cir. 2000).

Deficient performance by counsel is established by showing “that counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 68788. In applying this standard, the “court must indulge a ‘strong presumption' that counsel's conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight.” Bell v. Cone, 535 U.S. 685, 02 (2002) (quoting Strickland, 466 U.S. at 689). The “objective standard of reasonableness” requires “that counsel research relevant facts and law, or make an informed decision that certain avenues will not be fruitful.” United States v. Conley, 349 F.3d 837, 841 (5th Cir. 2003) (quotations omitted). However, “[a] conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness.” United States v. Jones, 287 F.3d 325, 331 (5th Cir. 2002) (quotations omitted). Thus, “[i]nformed strategic decisions of counsel are given a heavy measure of deference and should not be second guessed.” Id. (quotations omitted).

To demonstrate prejudice caused by counsel's allegedly deficient performance, the petitioner must show that there is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.

There is no reason for a court to address both the performance and the prejudice components if the defendant makes an insufficient showing on one. See id. at 697. “In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Id. If it is easier to dispose of the claim because of a lack of sufficient prejudice, that course should be followed. Id.

ANALYSIS

First Argument

Morrison first argues that his appellate counsel was ineffective because on appeal, she failed to highlight inconsistencies between Officer Biondolillo's suppression hearing testimony versus his trial testimony. However, the appellate record reflects that Morrison's appellate counsel explicitly raised the alleged inconsistencies. In Morrison's appellate brief for his first appeal, his counsel begins a section of the argument thusly: "At trial, Officer Biondolillo testified about the warrantless entry and search of Mr. Morrison's home for a second time. See ROA1.1312-16. In contrast with his suppression hearing testimony, Officer Biondolillo did not testify that Mr. Morrison appeared in the hallway while he and Trooper Bordelon were still on the porch."^[3] His brief in his second appeal also highlighted inconsistencies, asserting "Officer Biondolillo's description of events also changed over time,"^[4] and "[n]otably, Officer Biondolillo's account of the events at the door changed again by the time of Mr. Morrison's trial."^[5]

Because Morrison's attorney did in fact raise the alleged discrepancies in Officer Biondolillo's testimony, Morrison cannot demonstrate that her representation was deficient because she failed to do so, or that he suffered any prejudice by her failure to do so. This argument is without merit.

Second Argument

Morrison argues that his trial attorneys were ineffective because they did not have transcripts of Officer Biondolillo's suppression hearing testimony available to impeach him at trial. However, he does not use this as a basis to contend that the jury would have acquitted him, but rather to argue that if his counsel had the suppression transcripts in hand and used them to point out instances at trial where Officer Biondolillo's testimony was inconsistent, the court "would have reversed her decision of not suppressing the illegally obtained evidence used to convict Morrison...."^[6]

At the time of trial, the suppression issue had been resolved and was not subject to recnsideration. Further, to the extent Morrison is suggesting that the suppression issue should have been argued to the jury, “the legality of the search and seizure in question, as well as the admissibility of any evidence obtained therein, are not issues for the jurors to decide.” United States v. Jefferson, ...