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Morgan v. Jess

United States District Court, W.D. Wisconsin

October 28, 2019

CATHY A. JESS, Respondent.



         Ronald David Morgan, appearing pro se, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254.[1] He challenges his conviction for multiple sex offenses against a 15-year old child, entered in Marathon County case No. 2013CF747. Morgan contends that his conviction should be vacated because his trial counsel was constitutionally ineffective in a No. of ways. The petition is before the court for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, I must dismiss the petition “if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.”

         Morgan has filed a “mixed petition, ” meaning that he presented only some of his claims in the state courts before filing his habeas petition. But federal courts cannot consider the merits of a state habeas petitioner's claims until the petitioner has presented those claims to the state courts for review. 28 U.S.C. § 2254(b)(1)(A). As explained below, Morgan must decide whether to proceed with his habeas petition only on the claims he has raised and exhausted in state courts, or alternatively, to dismiss his entire petition and refile it after he has exhausted all of his claims.


         The following facts are drawn from the petition and the Wisconsin Court of Appeals decision affirming Morgan's conviction. State v. Morgan, 2018 WI.App. 54, 383 Wis.2d 784, 918 N.W.2d 643, review denied, 2018 WI 111, 384 Wis.2d 466, 922 N.W.2d 300.

         In Marathon County case No. 2013CF747, Morgan was charged with three counts of second-degree sexual assault of a child under 16 years of age and one count of exposing a child's genitals. Morgan pleaded not guilty and proceeded to a jury trial.

         The victim was the state's primary witness. He testified that Morgan had sexually assaulted him while they were both at a family gathering. The victim's mother and a sexual assault nurse testified about what the victim had told them about the assault. The state also played a one-hour videotaped statement that the victim had made to a forensic interviewer. Defense counsel did not object to the mother's testimony or the nurse's testimony. Counsel filed a handwritten motion in limine to preclude the recorded videotaped statement, but later withdrew the objection.

         A police officer testified about an interview that he had with Morgan, during which Morgan stated that he had been drinking on the night in question and that he could not remember anything more than touching the victim's legs and joking with him. But Morgan also stated repeatedly during the interview that the victim was a truthful person. He also acknowledged that he and the victim had talked about homosexuality during the family gathering.

         Morgan did not testify at trial, and his attorney did not present any defense witnesses. During closing arguments, defense counsel emphasized the lack of DNA evidence and the lack of eyewitnesses. Defense counsel also observed that there were “strange dynamics” in the victim's family and observed that the victim's mother had been mad at him in the days following the assault. The jury found Morgan guilty on all counts, and Morgan was sentenced to six years of imprisonment and nine years of extended supervision.

         Morgan, through counsel, filed a postconviction motion challenging the effectiveness of his trial counsel. He argued that counsel should have objected on hearsay grounds to the victim's videotaped statement and the mother's testimony about the victim's statements. The circuit court denied Morgan's motion after a hearing, and the court of appeals affirmed. The Wisconsin Supreme Court denied Morgan's petition for review on November 13, 2018. Morgan filed his federal habeas petition on September 25, 2019.


         Morgan raises four claims for relief in his habeas petition. He argues that his trial counsel was ineffective by (1) failing to object to the victim's videotaped interview and other hearsay evidence introduced at trial; (2) failing to cross-examine the victim regarding his inconsistent testimony; (3) failing to call witnesses who would have been favorable to the defense; and (4) failing to act on a death threat made against Morgan, defense counsel, and their investigator. Morgan concedes in his petition that the only claim for relief that he raised in the state courts was his first claim, regarding counsel's failure to object to hearsay evidence. He states that the other claims were not raised because his postconviction counsel was incompetent.

         But a state prisoner seeking habeas relief from a federal court must first exhaust the remedies available in the state courts. 28 U.S.C. § 2254(b)(1)(A). This means that a state prisoner must present his claims through a complete round of state-court review, whether on direct appeal of his conviction or in postconviction proceedings. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Bolton v. Akpore, 730 F.3d 685, 694 (7th Cir. 2013). Because Morgan did not present claims 2, 3, and 4 in the state courts, I cannot consider them.

         Morgan has two choices about how to proceed with his habeas petition. First, he may proceed only with claim 1 of his petition. If he chooses this option, I will dismiss the remaining claims. But Morgan should know that state prisoners typically receive only one opportunity to pursue habeas relief in federal court. This means that Morgan would not have the ability to proceed on the dismissed claims later. See Burton v. Stewart,549 U.S. 147, 154 (2007) (Petitioner “may proceed with ...

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