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Morgan v. State

United States District Court, D. Kansas

July 12, 2017

RAMONA I. MORGAN, Petitioner,
v.
STATE OF KANSAS, et al., Respondents.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL United States District Judge.

         Pursuant to 28 U.S.C. § 2254, pro se petitioner Ramona I. Morgan seeks a writ of habeas corpus, claiming various constitutional violations arising out of her state court convictions for second degree murder and aggravated battery. Petition For Writ Of Habeas Corpus (Doc. #1) filed October 16, 2015. For the reasons stated below, the Court denies the petition.

         Factual Background

         The Kansas Court of Appeals set out in detail the evidence at trial, see State v. Morgan, 231 P.3d 587 (May 28, 2010). The Court briefly summarizes the evidence as follows:

         In September of 2007, a work crew was resurfacing a portion of a highway in Douglas County, Kansas. Only one lane of traffic was open to vehicles. Flaggers directed traffic at each end of the marked construction zone, and a pilot car led the vehicles in the open lane.

         On the morning of September 11, 2007, several workers saw a dark-colored truck driving northbound through the construction zone with two female occupants. They noticed that the truck was not following a pilot car and was traveling very fast. Two crew members motioned for the truck to slow down, but it accelerated. The truck swerved towards crew foreman Rollin Jensen, who jumped behind a resurfacing machine and threw a cup of coffee at the truck.

         About 30 to 45 minutes later, the crew saw the same truck driving southbound in the“safe lane” where workers were operating machinery. Amanda Hopper was working as a flagger at the north end of the zone, and saw the truck accelerate as it approached. She tried to stop the truck by hitting the front passenger side headlight with her flagger paddle, but the truck continued to accelerate through the safe lane. Crew member Oscar Anaya-Bautista attempted to slow the truck by signaling to the driver, but the truck accelerated and drove past him. Another crew member, Curtis Delzell, also tried to get the driver's attention by waving his arms, but the truck continued to accelerate through the zone. The truck struck Delzell, injuring his left foot and leg. The truck then hit two of the crew members, Rolland Griffith and Tyrone Korte, who both died from their injuries.

         Shortly after the incident, Trooper Todd Brooks received a call for assistance and a description of the vehicle involved. He saw a truck matching the description and pursued it with emergency lights and siren turned on. Brooks pursued the truck for 25 miles at speeds up to 95 miles an hour. He eventually stopped the truck after law enforcement officers placed stop sticks on the road. Brooks identified the driver as Ramona Morgan and the passenger as Morgan's daughter, Sabrina Morgan.

         The Douglas County district attorney charged Ramona Morgan with two counts of reckless second degree murder for the deaths of Griffith and Korte, in violation of Kan. Stat. Ann. § 21-3402 (repealed) and one count of reckless aggravated battery for the injuries to Delzell, in violation of Kan. Stat. Ann. § 21-3414 (repealed).[1]

         In September of 2008, the state court held a jury trial. The government presented testimony by Trooper Brooks and surviving construction crew members who had witnessed the incident. Forensic experts testified that blood and other material collected from the front of Morgan's truck matched the DNA of Griffith and Korte. The government also introduced evidence that the truck computer indicated that the truck was traveling 51 miles per hour when it struck the workers. Sabrina briefly testified under subpoena during the prosecution's case and acknowledged being an unwilling witness. In very general terms, Sabrina testified about the events that Morgan later testified about.[2]

         Morgan testified at trial as follows: In August of 2007, she had sold her farm in Chewala, Washington. On September 7, she and her daughter Sabrina left Washington to drive to Missouri to purchase a small farm property near Eldridge, Missouri. When they arrived at the Missouri property on September 10, Morgan saw the property for about five minutes, decided that it was unacceptable, and left. She decided to travel back to Washington to live with her sister while she looked for another property. After leaving the Missouri property, she saw four or five vehicles on the side of the road with people talking on cell phones and pointing at her. Some of these vehicles began to chase her, or tried to stop her or run her off the road. One of the drivers held a gun out the window of his SUV and shot at her truck. When she got to Buffalo, Missouri, Morgan called 911 and reported these incidents.

         Over the next few days, Morgan experienced several other unusual events which caused her to fear for her safety and that of Sabrina. Early on the morning of September 11, 2007, she checked out of a hotel in Gardner, Kansas just two hours after she had checked in because she was afraid that the Missouri gang had followed her to the hotel. She became lost as she tried to find the interstate highway to head back to Washington. She approached the construction zone in Douglas County and was coming to a stop when a flagger started hitting her truck with a pole. Someone then threw gasoline at her truck and started pelting the truck with objects. She was trying to escape and was extremely scared, so she drove quickly through the construction zone because she believed that the people in the zone were the same people who had chased her truck in Missouri. She struck what she thought were grey and orange barricades, but she did not hit any people with her truck.

         After that, she saw a car close behind her. Sabrina said that it looked like a police car, but Morgan was scared so she did not stop. Morgan said that the car did not have a light bar on top, like police cruisers do. Sabrina placed a cell phone call to 911 to try to confirm that a law enforcement officer was behind them. Morgan stopped the pickup truck when she approached a roadblock and could readily identify a police officer there.

         Morgan's counsel did not introduce evidence to corroborate testimony about the Missouri gang by Morgan and Sabrina.

         On September 9, 2008, a jury found Morgan guilty of two counts of second degree murder and one count of aggravated battery. On November 12, 2008, the trial court sentenced Morgan to 315 months in prison.

         Procedural Background

         Morgan filed a direct appeal of her conviction and sentence in the Kansas Court of Appeals. She asserted that the district court erred in (1) admitting footage of Morgan's statements to the news media; (2) excluding evidence that a material witness (Hopper) was biased; (3) responding to jury questions regarding instructions on “state of mind” and “extreme indifference to human life;” and (4) including prior convictions in Morgan's criminal history score. She also asserted cumulative error. The Court of Appeals found only harmless error and upheld Morgan's convictions and sentence. State v. Morgan, No. 101769, 2010 WL 2245604 (Kan. App. May 28, 2010), rev. denied, 290 Kan. 1101 (2010).

         Morgan then filed a motion for post-conviction relief under the Kansas habeas corpus statute, Kan. Stat. Ann. § 60-1507, alleging ineffective assistance of trial and appellate counsel. In August of 2012, the district court held an evidentiary hearing on the motion and issued a lengthy written decision rejecting Morgan's claims. See State v. Morgan, No. 11-C-525, Douglas Cty. Kan. Dist. Court, Nov. 7, 2012 (unpublished). Morgan appealed, setting forth three arguments. First, she argued that her trial lawyer was ineffective because he did not object to admission of the news report on grounds that the prejudicial impact of showing Morgan in prison clothes and handcuffed outweighed the probative value of her statements. Second, she argued that trial counsel was ineffective when he failed to offer a recording of the 911 call which Sabrina made as Trooper Brooks tried to stop their pickup truck as it drove away from the construction zone. Third, she argued that appellate counsel was ineffective because he did not assert that the prosecutor's repeated use of the phrase “we know” to introduce various representations during closing argument constituted prosecutorial misconduct. The Kansas Court of Appeals denied post-conviction relief.

         On October 16, 2015, in this Court, Morgan filed a Petition For Writ Of Habeas Corpus (Doc. #1) asserting 12 grounds for relief. On March 30, 2016, the Court issued an Order To Show Cause (Doc. #6) which directed petitioner to show that she had exhausted state court remedies on all 12 grounds raised in her petition. The Court stated that if petitioner had not exhausted all 12 claims, she could dismiss her unexhausted claims and proceed on the exhausted claims, or the Court would dismiss the entire petition as mixed. Doc. #4 at 1; see Rhines v. Weber, 544 U.S. 269, 273 (2005) (federal district courts may not adjudicate mixed petitions for habeas corpus). Petitioner responded that she chose to continue with six exhausted claims and to dismiss six unexhausted claims. See Motion To Continue Petition (Doc. #5) filed April 6, 2016 at 1; Response To Order (Doc. #8) filed May 13, 2016 at 1-2.

         Standards For Habeas Petitions Under 28 U.S.C. § 2254

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”), codified in relevant part at 28 U.S.C. § 2254, governs the Court's review. Under Section 2254, the Court may not issue a writ of habeas corpus with respect to any claim that the state court adjudicated on the merits unless that adjudication

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

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