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Morens v. Meisner

United States District Court, E.D. Wisconsin

October 4, 2016

RICHARD MORENS, Petitioner,
v.
MICHAEL MEISNER, Respondent.

          DECISION AND ORDER DENYING PETITION FOR RELIEF UNDER 28 U.S.C. § 2254

          WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT COURT

         This is an action for federal habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner Richard Lee Morens was convicted in Milwaukee County Circuit Court of one count of possession with intent to distribute more than 50 grams of heroin, one count of possession with intent to distribute more than 40 grams of cocaine, and six counts of felon in possession of a firearm. He was sentenced to 18.5 years of initial confinement and 13.5 years of extended supervision. He is currently incarcerated at Redgranite Correctional Institution.

         Morens filed a petition for federal relief from his state conviction on August 11, 2015. In its screening order issued September 4, 2015, the court allowed Morens to proceed on three claims: (1) improper joinder of charges, (2) ineffective assistance of trial counsel, and (3) ineffective assistance of appellate counsel. The case is now before the court for resolution. For the reasons discussed herein, Morens' petition will be denied and the case dismissed.

         BACKGROUND

         The Milwaukee Police Department conducted surveillance of 4369 North 19th Street for several days. (ECF No. 10-5 at 2.) During that time, Morens was seen using a key to enter and exit the residence approximately twelve times. (ECF No. 10-3 at 16.) Police initially detained Morens during a traffic stop. At first, Morens denied living at the residence but, after learning of the surveillance, admitted living at the home. (Id.) Officers found a small amount of marijuana in Morens' car, and Morens indicated there was more at the residence. (Id.) The officers obtained a search warrant for the house, and in executing the warrant, found a “secret compartment” in a closet next to Morens' bedroom. (Id. at 16-17.) Police uncovered a yellow vinyl bag containing 97 grams of heroin and 126 grams of cocaine, a shaving bag containing $6, 352 in cash, and a dust mask. (Id.) The dust mask, according to testimony introduced at trial, was used when “cutting” or diluting the drug with another substance to increase the volume. Police also found five guns in the hidden compartment and one gun in the kitchen. Many of the items discovered were tested for the presence of DNA. Though testing revealed DNA from multiple sources, Morens' DNA was on the dust mask and the bag containing the cocaine and heroin. (ECF No. 10-5 at 2.)

         Morens was charged in an amended information with a total of eight counts: one count of possession with intent to deliver more than fifty grams of heroin, one count of possession with intent to deliver more than forty grams of cocaine, and six counts of possession of a firearm by a felon. (Id. at 2-3.) Morens moved to sever the drug charges from the weapons charges. Initially, the circuit court granted the motion, but after the State moved for reconsideration, the court concluded the charges would be tried together. (ECF No. 10-17.)

         At trial, the court instructed the jury on each element it was required to find for the drug offenses and then for the gun offenses. (ECF No. 10-18.) The trial court told the jury that to find Morens guilty of the gun offenses, the State had to prove two elements: (1) that Morens possessed a firearm and (2) that he had previously been convicted of a felony. (Id. at 14-15.) The court noted that the parties stipulated to the fact that “[t]he defendant, Richard Morens, was convicted of a felony before September 14 of 2008.” (Id. at 17.) Morens was convicted of all eight counts on September 17, 2008. (ECF No. 10-18.)

         On direct appeal, Morens argued his trial counsel was ineffective because they failed to call two witnesses, Ernette Griggs and Maurice Sanders, who would have supported the defense's “party house” theory. (ECF No. 10-2.) The defense argued that while Morens lived at the residence, he did not live alone, many people frequented the house, and the drugs belonged to someone else. On November 22, 2011, the Wisconsin Court of Appeals affirmed Morens' conviction. (ECF No. 10-5.) The Court of Appeals concluded trial counsel was not ineffective because counsel made a reasonable, strategic choice in not calling the potential witnesses. (Id. at 7-9.) On April 23, 2012, the Wisconsin Supreme Court denied Morens' petition for review. (ECF No. 10-8.)

         On July 15, 2013, Morens filed for postconviction relief arguing that the drug and gun charges were improperly joined, that trial counsel were ineffective for failing to request a limiting instruction neutralizing Morens' status as a felon, that trial counsel were ineffective for not objecting to expert opinion testimony, and that appellate counsel was ineffective for failing to raise those issues on direct appeal. The trial court denied Morens' motion for postconviction relief and the Court of Appeals affirmed the decision. (ECF No. 10-12.) As to joinder, the Court of Appeals found that the drug and gun charges were properly joined because “the charged crimes stemmed from the ‘same act or transaction.'” (Id. at 4.) The Court of Appeals further concluded the trial court properly exercised its discretion in denying Morens' motion to sever and that Morens' appellate lawyer was not ineffective for failing to raise this issue because she would be unable show that the circuit court misused its discretion. (Id. at 6.) The Wisconsin Supreme Court denied Morens' petition for review on August 5, 2015. (ECF No. 10-15.)

         LEGAL STANDARD

         Morens' petition is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254. Under AEDPA, habeas corpus relief for persons serving sentences imposed by state courts may not be granted on any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). A state court decision is “contrary to . . . clearly established Federal law” if the court did not apply the proper legal rule, or, in applying the proper legal rule, reached the opposite result as the Supreme Court on “materially indistinguishable” facts. Brown v. Payton, 544 U.S. 133, 141 (2005). A state court decision is an “unreasonable application of . . . clearly established Federal ...


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