Morton v. Davis

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-10438

STEVEN LOWELL MORTON,

Petitioner-Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CV-2653

Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:
*

Steven Lowell Morton, Texas prisoner # 1924241, was convicted by a jury
of unlawful possession of a controlled substance and sentenced to 60 years of
imprisonment. Evidence and testimony at his trial established that when
Morton failed to respond to knocks on his motel room door after checkout time,
staff entered, found him unconscious on the bed next to a firearm, and called
the police. See Morton v. State, No. 10-14-00113-CR, 2015 WL 4710264, at *1

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
March 24, 2020

Lyle W. Cayce
Clerk
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No. 19-10438
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(Tex. App. Aug. 6, 2015). Officers managed to wake Morton and, while waiting
for medical assistance to arrive, Officer Corey Hall noticed an unzipped black
bag with a one- or two-inch opening, through which he saw a syringe, several
small plastic baggies, and a straw with apparent drug residue. See id. A
search of the bag revealed more baggies and a digital scale. Id. After being
medically cleared, Morton was arrested for possession of drug paraphernalia,
and a search incident to that arrest revealed a baggie containing 4.41 grams of
methamphetamine in his pocket. Id. at 2. Morton’s trial counsel
unsuccessfully moved to suppress evidence on Fourth Amendment grounds,
arguing that the motel staff and police entered the motel room in violation of
his reasonable expectation of privacy.
After his direct appeal, Morton filed a state habeas application raising
IAC claims based on, inter alia, trial counsel’s failure to move to suppress the
evidence on the Fourth Amendment theory that the bag next to the bed was
actually closed and the drug paraphernalia therefore could not have been in
plain view. The TCCA remanded to the habeas trial court for findings as to
Morton’s claim that counsel should have moved to suppress “on the basis that
evidence alleged to have been in plain view could not have been seen by the
investigating officer” because “the bag in which paraphernalia was found by
the officer would not stay open so that its contents were visible.” See Ex parte
Morton, No. WR-86,890-01, 2017 WL 3380521, 1 (Tex. Crim. App. June 28,
2017). On remand, the state habeas trial court received an affidavit from
Morton’s trial counsel and recommended concluding that counsel was not
ineffective. Thereafter, the TCCA denied the petition without written order on
the trial court’s findings.
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Morton then filed a § 2254 petition raising the same claim, among
others.
1
The district court denied his § 2254 petition and denied a COA.
Morton now requests a COA from this court.
To obtain a COA, a petitioner must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a district court
has denied claims on the merits, a petitioner must show “that jurists of reason
could disagree with the district court’s resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). To prevail on an IAC claim, a petitioner must demonstrate that
counsel’s performance was deficient and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). A
failure to establish either prong defeats the claim. See id. at 697. To
demonstrate deficient performance, a petitioner “must show that counsel’s
representation fell below an objective standard of reasonableness.” Id. at 688.
To demonstrate prejudice, a petitioner must demonstrate “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694. The probability “of a
different result must be substantial, not just conceivable.” Harrington v.
Richter, 562 U.S. 86, 112 (2011).
Morton argues, inter alia, that his trial counsel was ineffective for failing
to move to suppress evidence on the theory that the bag next to the bed, even
if unzipped, would not stay open and the drug paraphernalia therefore could
not have been in plain view. As support for his argument, Morton notes that
his trial counsel raised this point to the jury in his closing argument at trial:

1
Morton also argued that his trial counsel was ineffective for (1) failing to obtain an
article 38.23 instruction based on the plain view theory and (2) his appellate counsel was
ineffective for failing to raise trial counsel’s ineffectiveness on direct appeal.
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No. 19-10438
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the bag could not stay open even when it was unzipped, and therefore the bag’s
contents could not have been in plain view.
Assuming that counsel was deficient in failing to raise the plain-view
argument during the suppression hearing, Morton fails to establish that
reasonable jurists would debate whether the result of the proceeding would
have been different if counsel had raised this argument. Miller-El v. Cockrell,
537 U.S. at 327; Strickland, 466 U.S. 694. First, though Morton testified at
the suppression hearing that he zipped the bag up the night before his arrest,
he also admitted that it was “very possible” that the purported owner of the
bag, Kenneth Lowe, had opened the bag before Morton woke up and left it
unzipped. Second, even assuming that Morton’s counsel accurately
characterized the behavior of the bag during trial, that characterization is not
inherently inconsistent with Officer Hall’s testimony, which included that the
bag was “unzipped,” not fully closed, and “was kind of pushed back a little bit
so there was an inch or two . . . opening that was visible.” He agreed that “if
[the cloth bag is] not zipped up right, it may not be closed properly.”
Morton has failed to make the requisite showing for issuance of a COA
as to (1) his claims of ineffective assistance of trial counsel based on an alleged
failure to raise a plain-view argument as a basis for suppressing evidence or
obtaining a jury instruction and (2) his claims of ineffective assistance of
appellate counsel based on trial counsel’s performance. See Miller-El, 537 U.S.
at 327. His motion for a COA is therefore denied. To the extent that he
requests a COA regarding the district court’s denial of an evidentiary hearing,
we construe his motion as a direct appeal of that issue, see Norman v. Stephens,
817 F.3d 226, 234 (5th Cir. 2016), and affirm, see Cullen v. Pinholster, 563 U.S.
170, 185-86 (2011).
COA DENIED; AFFIRMED.
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