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Morrow v. Grondolsky

United States District Court, D. Massachusetts

June 21, 2018

DAVID MORROW
v.
JEFFREY GRONDOLSKY

          MEMORANDUM AND ORDER

          RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE.

         For the foregoing reasons, the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 is denied.

         BACKGROUND

         On March 3, 2018, Petitioner, David T. Morrow, an inmate at the Federal Medical Center, Devens, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, on the basis that the federal prosecutors failed to turn over exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963). Petitioner is presently serving a 504-month sentence imposed after jury trial conviction of conspiracy to distribute crack cocaine and maintaining a residence for the purpose of distributing crack cocaine. United States v. Morrow, No. 07-cr-40006-JPG (S.D. Ill. Mar. 3, 2008).[1]

         Although the only topic of Morrow's direct appeal, in which he was represented by counsel, was his sentence, see United States v. Harris, 567 F.3d 846, 853 (7th Cir. 2009), Morrow's second appeal, in which he proceeded pro se after discharging his attorney, included additional grounds related to his conviction. In denying Morrow's pro se motion to supplement his brief filed on February 4, 2009, the Seventh Circuit recognized that Morrow wanted “to argue that his trial counsel was ineffective and that the government forced cooperating witnesses to lie” but noted that “[b]ecause determination of these issues would require examination of evidence not in the trial record, ” such issues “would be more appropriately raised in a petition for writ of habeas corpus after the appellant has completed his direct appeal.” See Doc. No. 1-1, p.1, Morrow v. United States, No. 08-1543 (7th Cir. Feb. 10, 2009) (citing United States v. Brooks, 125 F.3d 484, 495 (7th Cir. 1997)).

         In affirming Morrow's sentence, the Seventh Circuit found no merit in any of Morrow's challenges to his resentencing and noted that the majority of the issues raised concerned Morrow's conviction which fall outside the scope of appellate review since they could have been raised in his first appeal. United States v. Morrow, 418 Fed. App'x 537, 539 (7th Cir. 2011).

         On August 8, 2011, Morrow filed a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody raising nine grounds for relief. Morrow v. United States, No. 11-cv-675-JPG, 2012 WL 1565645 (S.D. Ill. May 2, 2012) (order directing Government to file a response to the § 2255 motion). In directing service of the pro se motion, the sentencing court recognized that the appellate court, in finding that Morrow's issues fell outside the scope of appellate review, “instructed him that these issues would be more appropriately raised in a § 2255 motion.” Id. at *2.

         In the § 2255 motion, petitioner alleged, among other things, that he was denied a fair trial when the prosecutor introduced perjured testimony: i.e. that the government introduced supposed perjured testimony of co-defendant Dekal James, who was sentenced to 262 months after pleading guilty and cooperating with the government. Morrow v. United States, No. 11-cv-675-JPG, 2013 WL 556391 (S.D. Ill. February 13, 2013). However, the sentencing court held that Morrow had defaulted on this claim by failing to raise it on direct appeal, and that Morrow had not shown good cause or prejudice for failing to raise such claim on direct appeal. Id. In response to Morrow's contention that he was not permitted to raise this issue on appeal, the sentencing court noted that Morrow had a total of 4 attorneys throughout the underlying proceedings and that he did not allege that attorney Kister (who filed the initial, direct appeal) was ineffective. Id. The sentencing court declined to issue a certificate of appealability. Id.

         Morrow appealed the denial of his § 2255 motion and the Seventh Circuit found no substantial showing of the denial of a constitutional right and denied the request for a certificate of appealability. See Morrow v. United States, No. 13-470 (7th Cir. July 11, 2013). Morrow's petition for rehearing was denied, Morrow v. United States, No. 13-470 (7th Cir. July 11, 2013), and the Supreme Court denied Morrow's petition for a writ of certiorari. Morrow v. United States, 134 S.Ct. 832 (2013).

         Having unsuccessfully filed a Section 2255 petition, Morrow filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. See Morrow v. Grondolsky, No. 17-11634-WGY (dismissed December 22, 2017), appeal filed, No. 18-1081 (1st Cir. Jan. 22, 2018). The 2017 petition alleged prosecutorial misconduct; specifically that the government presented perjured testimony and “failed to disclose a deal” not to prosecute Dekal James's mother. See ECF No. 1, Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241, Morrow v. Grondolsky, No. 17-11634-WGY, at 6-7 (D.

         Mass. Aug 24, 2017). Morrow's 2017 petition was dismissed for (1) lack of jurisdiction to entertain a second or successive petition under § 2255; and (2) lack of subject matter jurisdiction to consider under § 2241 an out-of-district conviction. See Morrow v. Grondolsky, No. 17-11634-WGY (dismissed December 22, 2017), appeal filed, No. 18-1081 (1st Cir. Jan. 22, 2018). On January 9, 2018, Morrow's motion for reconsideration was denied. Id.

         Less than two months later, Morrow filed the instant action. The petition is not signed nor dated. See ECF No. 1. Petitioner again alleges that his constitutional right to a fair trial was violated by the government's failure to disclose an agreement with co-defendant Dekal James. Id. Morrow contends that his remedy under § 2255 is inadequate and ineffective to challenge his conviction on a Brady claim and that the instant action is his “first opportunity to receive judicial rectification.” Id. at p. 20.

         STANDARD OF REVIEW

         A federal prisoner may challenge the legality of his sentence through a writ of habeas corpus under section 2241 pursuant to the “savings clause” of Section ...


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