Kenneth Morris v. Bryan Bartow, 7th Circuit Court of Appeals No. 14-3482, 2016 WL 4207960, 8/10/16
Morris claims his guilty plea to first degree reckless homicide was involuntary, and that his appellate attorney was ineffective for failing to raise the issue of involuntariness in his no-merit appeal. The Seventh Circuit rejects his claims.
As the court notes at the outset, the issue in this case “lies behind unusually complex layers of procedural issues that have accreted over more than fifteen years.” (Slip op. at 1). Morris tried unsuccessfully to fire his attorney the morning of trial, and his attorney told the court he wasn’t prepared for trial because up until a few days before he expected Morris to plead guilty. The trial judge offered to postpone the trial a whole two days so counsel could prepare, after which the state said it would move to amend the charge from first degree reckless to first degree intentional homicide. After a break, Morris pled to the reckless homicide charge. Morris thereafter fired his attorney and hired a new one for sentencing. Morris didn’t move to withdraw his plea before sentencing, but after sentencing he did seek appellate review. His appointed lawyer filed a no-merit report under § 809.32, which the court of appeals accepted. (Slip op. at 2-5).
Morris subsequently argued in state postconviction proceedings that his guilty plea was coerced and that his appellate lawyer was ineffective for failing to give him the transcripts and court record, which Morris had requested during the no-merit process, and for failing to argue Morris’s plea was coerced. His ineffective claims were rejected because, while appellate counsel should have supplied Morris with the transcripts and court record, that failure didn’t prejudice Morris, and because Morris never raised the issue of coercion with his appellate lawyer. His coercion claim was held to be barred because he didn’t raise it during the no-merit process. (Slip op. at 5-6).
Morris reprises these claims in his federal habeas petition, to no avail.
First, the state courts’ conclusion regarding the ineffective claim is neither contrary to, nor an unreasonable application of, clearly established federal law, and is based on a reasonable determination of the facts:
…. The appellate court’s decision on this claim was driven by the findings of fact the state trial court made after hearing testimony from both Morris and [appellate counsel]. Morris’s guilty plea colloquy with the trial judge was thorough. It offers no support for a claim of coercion. The claim of coercion requires Morris to overcome the strong “presumption of verity” that courts give to a defendant’s sworn answers in the colloquy. See United States v. Ellison, 835 F.2d 687, 693 (7th Cir. 1987). The state trial court found that Morris never told [appellate counsel] that he felt coerced or pressured into pleading guilty. The state appellate court also found that the appellate record did not support a claim of coercion. The state appellate court also found no deficient performance, taking into account the facts that Morris did not complain to [appellate counsel] about feeling coerced beyond the record and that Morris did not indicate any coercion during the plea colloquy.
When a lawyer files an Anders brief or no-merit report in a criminal appeal, the standard under the Sixth Amendment for deficient performance is whether “a reasonably competent attorney would have found one nonfrivolous issue warranting a merits brief.” Smith v. Robbins, 528 U.S. 259, 288 (2000); see also Shaw v. Wilson, 721 F.3d 908, 915–16 (7th Cir. 2013). In this case, the appellate record on the direct appeal included the plea colloquy and written documents. All indicated that Morris’s guilty plea was voluntary. The record also included references to the circumstances that Morris has been arguing show coercion: the lawyer who was not prepared for trial and whose motion to withdraw was denied, the denial of a delay of more than two days in the trial, and the prosecutor’s proposal to try Morris for first-degree intentional homicide. Those circumstances tend to support a claim of coercion. What was missing at the time, though, was any suggestion by Morris that he had actually been coerced, so that his sworn answers in the plea colloquy should be disregarded and he should face trial instead.…
In the absence of any claim by Morris that he had been coerced into pleading guilty, the state courts did not apply Strickland unreasonably in finding that attorney [appellate counsel’s] performance was not deficient by reason of his failure to argue that Morris’s guilty plea had been coerced. We are not suggesting that Morris had to use the word “coerce” or had to recognize as a layperson that his guilty plea was legally invalid. The problem is that nobody knew Morris’s state of mind better than Morris. The state courts’ factual findings amount to a finding that there is no credible evidence that Morris had given attorney [appellate counsel] any information about his own state of mind when pleading guilty that would have called the validity of the guilty plea into question. ….
Second, Morris’s “stand-alone” claim that his plea was involuntary fails on the merits. While acknowledging Morris was “under tremendous pressure” on the day he pled due to the combination of his lawyer’s lack of preparation for trial and the trial court’s refusal to delay the trial by more than two days, the court says “this would have been an unusually simple homicide trial” because there was no doubt that Morris was the shooter and he never identified additional witnesses or lines of inquiry that his lawyer would have needed to pursue to prepare adequately for trial. And even after getting a new attorney for sentencing, Morris never moved to set aside the guilty plea and never called it into question:
Most compelling is Morris’s failure, even when represented by a newly retained lawyer, to seek to withdraw his guilty plea in the months before sentencing. Morris’s claim of coercion resulting from [trial counsel’s] lack of trial preparation and the trial court’s refusal to delay for more than two days would have more force if, shortly after the guilty plea but before sentencing, Morris and his new lawyer had moved to withdraw his plea based on coercion, pointing to the powerful pressures on him to plead guilty….
But if Morris actually felt coerced, despite his satisfactory answers during the plea colloquy, only he could say so. As we have said, no one else knew his state of mind better than he did. With his new attorney, … whose effectiveness has never been questioned, Morris went forward under the plea and argued for a modest sentence. To the extent that the original attorney … might have failed to investigate the case sufficiently, the second attorney … was given as much time as he needed to investigate the case before sentencing, where Morris’s state of mind at the time of the shooting was a key issue.
Note that the court rejects the state’s claim that Morris forfeited his stand-alone claim by failing to seek state supreme court review of the court of appeals’ acceptance of the no-merit report. The court of appeals can’t be read as a decision on the merits of the coercion claim, as that claim wasn’t presented in the no-merit report. (Slip op. at 11-13).