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Habeas – Recantation, Brady claim, ineffective assistance of counsel

Samuel Morgan v. Hardy, 7th Cir No. 10-3155, 11/7/11

seventh circuit decision

Habeas – Recantation 

The Illinois state court didn’t mishandle either the facts or applicable law, and its rejection of State witness Prater’s post-trial recantation as incredible wasn’t unreasonable. The petitioner’s task is to “show[] that the state court determined an underlying factual issue against the clear and convincing weight of the evidence” – though the recantation here is consistent with the physical evidence, so is the witness’s trial testimony. (Meta-message: evidentiary equipoise doesn’t cut it under AEDPA, not by a long shot:)

It bears repeating that Morgan faces a stringent standard. See Collins v. Gaetz, 612 F.3d 574, n. 5 (7th Cir. 2010). … In the end, the Illinois Supreme Court was unconvinced that, based on the physical evidence, Prater’s recantation was more convincing than his trial testimony. Prater’s trial testimony, in light of the physical evidence, may indeed require a “stretch of the imagination,” as suggested by the district court. But we cannot conclude that the Illinois Supreme Court’s decision to accept one set of events over another, when both are supported by the same physical evidence, is against the clear and convincing weight of the evidence. See Wood v. Allen, 130 S.Ct. 841, 849 (2010) reh’g denied, 130 S.Ct. 1942 (2010) (“[S]tate-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.”).

It was not against the clear and convincing weight of the evidence for the Illinois Supreme Court to reject Prater’s new account—even if it was a more “plausible version of events”—in favor of Prater’s original testimony, which, as the Illinois Supreme Court noted, “made sense too.” Indeed, as the court correctly noted, “plausibility” is not the test. Motley’s and Merkson’s history of violence merely provides support for another plausible scenario, the rejection of which is not objectively unreasonable. Again, we point out that “[a] decision is not objectively unreasonable unless it falls ‘well outside the boundaries of permissible differences of opinion.’ ” Starkweather v. Smith, 574 F.3d 399, 402 (7th Cir. 2009) (quoting Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002)).

Nor is Morgan’s cause aided by evidence that the same state agents who obtained Prater’s account had coerced a suspect in a different case: the state court’s determination that the two cases were dissimilar (Prater, unlike the suspect in the other case, wasn’t beaten and his invocation of counsel was honored) wasn’t unreasonable under AEDPA review.

Habeas – Brady Claim 

Morgan argues that the State provided false or incomplete disclosure of drug cases filed against witness Gregson, including preferential treatment on those cases in exchange for her testimony against Morgan. A successful Brady claim requires that 1) the government failed to disclose favorable evidence that 2) was “material,” in the sense of reasonable probability of a different result. Morgan can get past the first, but not the second, requirement: there is “no direct evidence” of lenient treatment of Gregson, but even if there were, her trial testimony was sufficiently corroborated that the state court’s conclusion this information wasn’t “material” was not unreasonable.

Habeas – Ineffective Assistance – Prejudice 

Choice of defense. Failure to pursue either voluntary intoxication or self-defense, even if the product of deficient performance, wasn’t prejudicial within the meaning of (deferential) AEDPA review. The state court found neither evidence of intoxication so severe that Morgan couldn’t form the requisite intent, nor a reasonable likelihood of a successful defense of voluntary intoxication. Given those findings, the state court’s conclusion of no prejudice must be sustained. As for self-defense, the state court’s conclusion that Morgan was barred as a matter of law from using deadly force because the evidence overwhelmingly showed him to be the aggressor wasn’t unreasonable.

Counsel’s absence. Lead counsel’s absence during certain parts of the trial didn’t amount to a denial of counsel, so as to dispense with showing prejudice, United States v. Cronic, 466 U.S. 648, 654 n. 11 (1984):

… Here, a counsel was physically present at all stages of the litigation—Levin’s co-counsel, Steven Decker represented Morgan in Levin’s absence—and therefore, we cannot conclude that Morgan was denied counsel at critical stages of trial. The Illinois Supreme Court’s determination to apply Strickland, instead of presuming prejudice under Cronic, was not contrary to clearly established federal law.

The court string-cites several cases illustrating the presumption of prejudice when counsel isn’t present at a critical stage.

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