United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE, District Judge.
This matter is before the Court upon Petitioner Richard Travis Morrow's pro se Petition for a Writ of Habeas Corpus [R. 1] pursuant to 28 U.S.C. § 2254. Consistent with local practice, this matter was referred to Magistrate Judge Edward B. Atkins for initial screening and preparation of a report and recommendation. Judge Atkins filed his Report and Recommendation on June 30, 2010, in which he recommends that Morrow's petition be denied. [R. 17 at 15].
Morrow filed timely objections to the Recommendation and specifically objects to three of Judge Atkins' findings. [R. 19]. First, he objects to Judge Atkin's conclusion that his trial counsel was not ineffective in his investigation of and decision not to call an alibi witness. He also disputes the finding that his attorney's decision not employ an independent expert to examine certain DNA evidence did not amount to ineffective assistance. Finally, he objects to Judge Atkins' determination that the state trial court's denial of his Batson challenge during voir dire was not unreasonable or contrary to clearly established federal law. These objections trigger this Court's obligation to conduct a de novo review. See 28 U.S.C. § 636(b)(1)(c). The Court has satisfied that duty, reviewing the entire record, including the pleadings, the parties' arguments, relevant case law and statutory authority, as well as applicable procedural rules. For the following reasons, Morrow's objections will be OVERRULED.
On December 4, 2002, an armed man in a camouflage ski mask robbed the Science Hill Drug Store in Pulaski County, Kentucky, and fled the scene in a maroon, late model Ford Explorer. Richard Travis Morrow was indicted for the offense and was found guilty after a jury trial in Pulaski Circuit Court and was sentenced to thirteen years of imprisonment. The evidence at trial showed that around 11:45 on the morning of the robbery, Morrow purchased a camouflage ski mask from Paul's Discount Store near Science Hill; this transaction was captured on the store's surveillance tape. The store's owner found Morrow's behavior suspicious and called 911 to report the make, model, and plate numbers of the vehicle Morrow was driving - a maroon Ford Explorer that Morrow had borrowed from his friend Larry Burdine. The pharmacy was robbed around 12:30, and the assailant took several bottles of OxyContin pills. A responding police officer "[got] a good look at the driver" and pursued a dark-colored Ford Explorer as it fled the scene. [R. 8-12 at 28]. The officer, however, abandoned the pursuit after receiving a call that the perpetrator had fled in a different direction. Around 1:30, Morrow pulled into the same shopping center in the maroon Explorer, with Billie Jean, Larry Burdine's daughter, in the passenger seat. After being stopped and questioned by police, Morrow was arrested, though he stated that he had been at Burdine's residence all day and had nothing to do with the robbery. Clothing matching that worn by the robber, as well as an identical ski mask, was found beneath a nearby porch, and a hair sample from the mask was tested, although that test ultimately proved inconclusive. The OxyContin pills stolen in the robbery were later found behind the shopping center.
Judge Atkins' Recommended Disposition accurately sets forth a more detailed account of the factual and procedural background of the case and the applicable standard of review for granting habeas relief pursuant to § 2254(d). Except for what the Court supplements in its discussion below, the Court incorporates his discussion of the record and the standard of review into this Order.
Two of Morrow's objections concern ineffective assistance of counsel claims. The Magistrate and the Kentucky state courts each applied the proper standard under federal law set forth in Strickland v. Washington, 466 U.S. 668 (1984), which requires a defendant claiming ineffective assistance of counsel to show, first, that his counsel's performance was deficient by overcoming "the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, " id. at 689, and second, to demonstrate prejudice resulting from his counsel's errors. Id. at 694.
Morrow objects to the Magistrate's conclusion concerning his claim that his counsel failed to investigate and call Billie Jean Burdine as an alibi witness. Billie Jean, the daughter of Morrow's friend Larry Burdine and then a sixteen-year-old high-school student, had returned home from school early on the day of the robbery. Morrow argues that she could have corroborated his alibi that he was at the Burdine's trailer at the time of the crime. [R. 17 at 10].
Morrow insists, first, that his attorney failed to investigate his alibi or interview Billie Jean. The trial court found that Morrow had not produced any evidence showing that his attorney had failed to conduct a pre-trial interview. The court also pointed out that, in his opening statement, Morrow's attorney referenced the fact that Billie Jean was in the vehicle with Morrow on the day in question. This, the state court reasoned, demonstrated that counsel had not failed to investigate, but was aware of Billie Jean's involvement. [R. 8-27 at 3-4]. The Kentucky Court of Appeals, [R. 9-30 at 7], and the Magistrate agreed, [R. 17 at 5].
A lawyer has a duty under Strickland to "investigate all witnesses who may have information concerning his or her client's guilt or innocence." Ramonez v. Berghuis, 490 F.3d 482, 487 (6th Cir. 2007) (citations omitted). "The focus in failure-to-investigate claims... is the reasonableness of the investigation (or lack thereof)." English v. Romanowski, 602 F.3d 714, 726 (6th Cir. 2010) (citing Wiggins v. Smith, 539 U.S. 510, 527 (2003)). When assessing the reasonableness of counsel's pre-trial investigation, a court considers "not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further." Wiggins, 539 at 527. The Sixth Circuit has noted that, in most failure-to-investigate cases, the record demonstrates that "counsel has either completely failed to investigate a potential witness... or the record shows that had the attorney taken some investigatory steps he or she would have discovered additional crucial information." Hale v. Davis, 512 Fed.App'x 516 (2013) (unreported) (citations omitted) (collecting cases). The burden is on the petitioner to demonstrate that there was "no reasonable basis for the state court to deny relief." See Smith v. Crowley, 36 Fed.App'x 754, 755 (unreported) (citing Strickland, 466 U.S. at 697); 28 U.S.C. § 2254.
Morrow has not shown that his attorney failed to speak with Billie Jean Burdine, nor has he shown that speaking with Billie Jean would have led to "additional crucial information." Counsel was clearly aware of her role in the events in question. As the state courts and the Magistrate emphasized, Morrow's counsel referred to Billie Jean's presence in the car in his opening statement and, for that matter, several times throughout the trial. [ See, e.g., R. 8-10 at 26; R. 8-15 at 5, 27; R. 8-20 at 3]. While it is not clear what information Billie Jean herself might have provided, Morrow's counsel elicited details about Billie Jean's whereabouts on the day in question from several witnesses, including her father Larry Burdine. [R. 8-15 at 27]. Neither Morrow nor the record establishes what new information Billie Jean could have provided to counsel. Accord Hale, 512 Fed.App'x at 521(where counsel was aware of potential alibi and what she would testify if called as a witness, no unreasonable failure to investigate since petitioner had failed to establish any additional information that counsel would have learned from the witness).
Even if counsel's investigation were unreasonable, however, Morrow has not established that his trial was prejudiced as a result. The courts below did not conduct an evidentiary hearing to establish whether counsel failed to investigate Billie Jean as a potential alibi witness. However, even in the absence of an evidentiary hearing, "the claim of ineffective assistance can be addressed by examining whether the alleged deficient performance of counsel casts doubt on the outcome of the trial." Smith, 36 Fed.App'x at 756 (citing Strickland, 466 U.S. at 697). In assessing the prejudice from counsel's errors, "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. The Kentucky Court of Appeals and the Magistrate determined that the overwhelming evidence against Morrow precluded any finding of prejudice. As the Kentucky Court of Appeals noted, the evidence at trial showed that about an hour before the robbery, Morrow was captured on videotape purchasing camouflage ski mask at a nearby store, dressed exactly the same as the person who committed the offense, and he was observed leaving the store in a dark colored Ford Explorer. [ E.g., R. 8-11 at 20]. This vehicle was spotted behind the drugstore just before the robbery took place, [R. 8-12 at 18], and Morrow was also identified by a police officer leaving the scene of the robbery in a dark-colored Ford Explorer with a matching license plate number. [R. 8-12 at 28]. Morrow has not established a reasonable probability that, but for counsel's alleged deficiency, the result of his trial would have been different. Given the weight of the evidence of Morrow's guilt, the state courts' ...