Opinion
97-CV-2217 (JG)
August 18, 2003
CHRISTOPHER MORGAN, Elmira, New York, Petitioner Pro Se
RICHARD A. BROWN, District Attorney of Queens County, Kew Gardens, New York, for Respondent
MEMORANDUM AND ORDER
Petitioner Christopher Morgan seeks habeas corpus relief from a judgment of conviction entered after a jury trial in state court. For the reasons set forth below, the petition is denied.
FACTS
On April 12, 1989, Morgan broke into the home of 77 — year —old Lillian Zimmerman. She was sitting in her living room watching the 6:00 p.m. news. Morgan ordered her upstairs. She tried to push past him, not wanting to go upstairs, and Morgan hit her. As Zimmerman described it, Morgan struck her
"[w]ith his hand, like an iron hand. And the impact forced me to fall forward on the table which became all covered with blood and my glasses broke and I was bleeding heavily. When I got up off the table I said, "Don't you dare do that to me. Don't you dare." And he gave me another whack . . . it forced me into the kitchen and I hit the refrigerator and the stove. And the blood was all over the place . . . I said "You see what you did to me?" Another whack.
(Hr'g Tr. at 6.) Zimmerman picked up a kitchen knife, which Morgan then grabbed from her. Morgan told Zimmerman to give him her money, which she did, and Morgan fled with her wallet and the knife. Minutes later, police apprehended Morgan as he was climbing into the window of a nearby house, which belonged to Matvei Tchaban. Morgan struggled with the police. During the struggle, he tried to stab Police Officer Louis Mango in his mid — section. Mango was able to turn away, but he was stabbed in the hand as he tried to block the knife. Morgan fought with Police Officer John Collins and Sergeant Jeffrey Zawadzki as well. In all, it took six police officers to restrain Morgan.
A preliminary hearing took place on April 18, 1989.
The police found Zimmerman's wallet in Morgan's back pocket, her money in Tchaban's back yard, and her twelve — inch kitchen knife on the ground near the scuffle. After his arrest, Morgan made incriminating statements to the police, including his observation that Zimmerman "was only an old lady." (Trial Tr. at 202.) Zimmerman identified Morgan at the scene, and did so again in court at a preliminary hearing held on April 18, 1989.
Following his arrest, Morgan was charged with thirty — six counts of criminal activity arising out of the foregoing conduct. He moved in the Supreme Court of the State of New York, Queens County, to suppress Zimmerman's identification testimony. After a hearing, the court denied petitioner's motion, holding that the identification procedure was not unnecessarily suggestive in light of its proximity to the time and place of the crime.
In connection with the crimes against Zimmerman, Morgan was charged with two counts of burglary in the first degree; one count of robbery in the first degree; one count of robbery in the second degree; one count of assault in the second degree; one count of assault in the third degree; three counts of grand larceny in the fourth degree; one count of criminal possession of a weapon in the fourth degree; three counts of criminal possession of stolen property in the fifth degree; one count of reckless endangerment in the first degree; and one count of reckless endangerment in the second degree. In connection with his efforts to enter the Tchaban house, Morgan was charged with two counts of burglary in the first degree. In connection with the attack on Officer Collins, Morgan was charged with one count of attempted murder in the first degree; one count of attempted murder in the second degree; three counts of assault in the second degree; one count of assault in the third degree; one count of criminal possession of a weapon in the fourth degree; and one count of resisting arrest. In connection with the assault on officer Mango, Morgan was charged with one count of attempted murder in the first degree; one count of attempted murder in the second degree; three counts of assault in the second degree; one count of assault in the third degree; one count of criminal possession of a weapon in the fourth degree; and one count of resisting arrest. In connection with his attack on Officer Zawadzki, Morgan was charged with two counts of assault in the second degree, and one count of assault in the third degree.
On August 1, 1990, the People moved to examine Zimmerman pursuant to New York Criminal Procedure Law ("CPL") § 660.50 because her health was rapidly deteriorating. At the hearing, Dr. Martin Heilbraun testified that Zimmerman was in the final stages of chronic lymphatic leukemia, and that it was not in her best medical interest to come to court to testify. Reasoning that Zimmerman was incapable of testifying at trial because of her illness, and that it was probable that she would not survive until the time of trial, the court granted the People's application to videotape Zimmerman's testimony.
However, when the Assistant District Attorney tried to contact Zimmerman to ask her to testify, Zimmerman's daughter informed the prosecutor that her mother's condition had significantly deteriorated, and that she was in the hospital and incapable of testifying. On September 7, 1990, the People moved pursuant to CPL § 670.10 for a declaration that Zimmerman was unable to attend the trial due to illness or incapacity. They also moved pursuant to CPL § 670.20 for an order allowing Zimmerman's preliminary hearing testimony into evidence. The court granted the People's motion without a hearing, holding that because Zimmerman's physical condition had deteriorated to such a degree that a conditional examination was not possible, admission of her hearing testimony as evidence in chief during the trial was warranted.
Morgan proceeded to trial before Justice Maurice Harbater of the New York State Supreme Court, Queens County, and a jury. At the conclusion of the trial, he was convicted of twenty — seven of the thirty — six charges.
In connection with the Zimmerman burglary, Morgan was convicted of one count of burglary in the first degree, one count of robbery in the second degree, one count of assault in the third degree, three counts of grand larceny in the fourth degree, one count of criminal possession of a weapon in the fourth degree, three counts of criminal possession of stolen property in the fifth degree, and one count of reckless endangerment in the second degree. In connection with the Tchaban burglary, he was convicted of two counts of burglary in the first degree. In connection with the attack on Officer Collins, Morgan was convicted of two counts of assault in the second degree, one count of assault in the third degree, one count of criminal possession of a weapon in the fourth degree, and one count of resisting arrest. In connection with his attack on Officer Mango, Morgan was convicted of one count of attempted murder in the second degree, three counts of assault in the second degree, one count of criminal possession of a weapon in the fourth degree, and one count of resisting arrest. In connection with his attack on Officer Zawadski, Morgan was convicted of two counts of assault in the second degree and one count of assault in the third degree.
Morgan was sentenced as a persistent violent felony offender to five consecutive terms of twenty — five years to life in prison. He was also sentenced to various other terms of imprisonment to run concurrently with those five terms.
In his appeal to the New York Supreme Court, Appellate Division, Second Department, Morgan raised five claims: (a) that the evidence was insufficient to prove beyond a reasonable doubt that he had caused physical injury to two of the police officers, that his actions were the proximate cause of the injury to the third officer, or that he intended to kill one of the officers; (b) that the evidence did not prove beyond a reasonable doubt that he entered the second house with the intent to commit a crime therein; (c) that the hearing court erred in denying his motion to suppress the show — up identification, and the trial court erred in allowing the People to admit the hearing testimony of Zimmerman; (d) that he was denied his due process right to a fair trial by the prosecutor's summation and by the court's response to the jury's request for a read — back of certain testimony; and (e) that the sentence was excessive.
On March 22, 1993, the Appellate Division unanimously affirmed Morgan's judgment of conviction. People v. Morgan. 595 N.Y.S.2d 237 (2d Dep't 1993). It held that the show — up identification was not unnecessarily suggestive and that the evidence was legally sufficient to prove Morgan's guilt of all counts of conviction. Id. at 238 — 39. The court also held that Morgan's sentence was not excessive.Id. The Appellate Division concluded its decision by stating that it had examined Morgan's remaining contentions and found them to be without merit. Id.
Morgan sought leave to appeal his conviction to the New York Court of Appeals, raising the same claims he had raised in the Appellate Division. Leave to appeal was denied on June 16, 1993, People v. Morgan. 81 N.Y.2d 1077, 1077 (1993) (Hancock, J.). Morgan did not seek a writ of certiorari from the United States Supreme Court.
On September 18, 1995, Morgan moved in the New York Supreme Court, Queens County, to vacate his judgment of conviction pursuant to CPL § 440.10 and to set aside his sentence pursuant to CPL § 440.20. He claimed that he was denied effective assistance of trial counsel and that the sentence imposed was illegal. On January 16, 1996, the court denied the motion, and on April 9, 1996, the Appellate Division denied Morgan's application for leave to appeal.
On April 8, 1997, Morgan filed the instant petition for a writ of habeas corpus. In the petition, he raises five claims: (a) that the evidence was insufficient to prove his guilt of attempted murder in the second degree, assault in the second degree, and assault in the third degree; (b) that the evidence was insufficient to prove beyond a reasonable doubt that he entered the Tchaban house with the intent to commit a crime therein; (c) that the hearing court erred in denying his motion to suppress the show — up identification and that the trial court erred in allowing the People to admit Zimmerman's hearing testimony; (d) that he was denied his due process right to a fair trial by the prosecutor's summation and by the trial court's response to the jury's request for a read — back of certain testimony; and (e) that he was denied effective assistance of counsel.
In a motion dated July 31, 1997, respondent moved, pursuant to 28 U.S.C. § 2244(d)(1) and Peterson v. Demskie. 107 F.3d 92 (2d Cir. 1997), to dismiss the petition as time — barred. On October 3, 1997, 1 granted the motion on the ground that more than one year had elapsed since the state court judgment became final and Morgan had failed to file his petition within a "reasonable time" after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").
On February 12, 1999, the Second Circuit vacated that decision in light of Ross v. Artuz. 150 F.3d 97 (2d Cir. 1998). The petition was subsequently opposed on the merits by respondent, and Morgan has filed a reply in support of the petition.
DISCUSSION
A. The Standard of Review
AEDPA has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state — court decision." Williams v. Taylor. 529 U.S. 362, 412 (2000);see also Gilchrist v. O'Keefe. 260 F.3d 87, 93 (2d Cir. 2001).
A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams. 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case."Id. Under the latter standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state — court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist. 260 F.3d at 93 (citing Williams. 529 U.S. at 411). InterpretingWilliams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Id. (citing Francis S. v. Stone. 221 F.3d 100, 111 (2d Cir. 2000)).
This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated inSellan v. Kuhlman:
[f]or the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.261 F.3d 303, 312 (2d Cir. 2001).
In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
B. Morgan's Claims
1. The Insufficiency Claim
Morgan contends that (1) the evidence failed to establish his guilt of attempted murder in the second degree or assault in the second and third degrees; and (2) the People failed to prove that he entered the Tchaban home with the intent to commit a crime in the home.
A petitioner "advancing a claim based on insufficiency of the evidence bears a very heavy burden." United States v. Soto. 716 F.2d 989, 991 (2d Cir. 1983). A state criminal conviction will be upheld if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). In making this assessment, a court may neither "disturb the jury's findings with respect to witnesses' credibility," United States v. Roman. 870 F.2d 65, 71 (2d Cir. 1989) (citing United States v. Stratton. 779 F.2d 820, 828 (2d Cir. 1985)), nor "make credibility judgments about the testimony presented at petitioner's trial or weigh conflicting testimony." Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (citing United States v. Zabare. 871 F.2d 282, 286 (2d Cir. 1989)). Thus, under this "rigorous standard," a `"federal habeas court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Wheel v. Robinson. 34 F.3d 60, 66 (2d Cir. 1994) (quoting Jackson. 443 U.S. at 326).
Morgan fails to sustain this heavy burden. There was evidence at trial that he lunged at Officer Mango and tried to thrust a 12 — inch knife into his torso. In addition, all three officers testified that they suffered substantial pain as a result of their altercation with Morgan. Zawadzki seriously hurt his back as well as his hand, which Morgan bit. Among other injuries, Mango suffered a deep stab wound to his hand. Collins suffered serious injuries to his neck, back and left knee. Morgan claims that the officers "inflated" their injuries (Pet. at 22) but credibility determinations are for the jury, not a habeas court.
As for the convictions arising out of Morgan's entry of the Tchaban residence, it was not necessary, as Morgan suggests (Pet. at 36), that the People call Tchaban to prove that Morgan's entry was unauthorized. Juries are permitted to use their common sense, and Morgan's act of climbing into a rear casement window, fresh from his crimes against Zimmerman, was ample evidence that he was not an invitee.
In short, viewing all the evidence in the light most favorable to the People, it clearly supported the jury's verdicts of attempted murder in the second degree (as to Mango), assault in the second and third degrees as to all three officers, and burglary in the first degree of the Tchaban home. At the very least, the state court's conclusion that the evidence was sufficient cannot reasonably be characterized as an unreasonable application of federal law.
2. The Challenged Identification Procedure
Morgan challenges the trial court's refusal to suppress Zimmerman's show — up identification of him. The procedure occurred approximately 40 minutes after Morgan assaulted Zimmerman in her well — lit living room, in the late afternoon.
A show — up — the presentation of a single suspect to the victim of a crime — is indeed the most suggestive type of identification procedure. However, though show — ups are inherently suggestive, they are not always unnecessarily suggestive.See United States v. Maldonado — Rivera. 922 F.2d 934, 973 (2d Cir. 1990) (challenge to identification triggers inquiry in which first step is to determine whether procedure was unnecessarily suggestive). Here, the state court concluded that, in light of its proximity in time and place to the crime, the show — up of Morgan to the elderly victim was not unnecessarily suggestive.
Morgan asserts that there was no exigency, and suggests that the Constitution required the police to wait until a lineup could be arranged before permitting Zimmerman to view him. He argues that "[a]lthough Mrs. Zimmerman was bleeding," she did not suffer stab wounds, and although she required a trip to the emergency room, she was not admitted to the hospital. (Pet. at 41.)
This argument is meritless. A show — up is permissible if there is an "overriding necessity" for its use. United States v. Conception. 983 F.2d 369, 377 (2d Cir. 1992). In the circumstances of this case, where a 77 — year — old victim had just been assaulted and was on her way to the hospital, and the suspect was apprehended nearby, shortly after the crime, it was plainly not an unreasonable application of federal law for the state courts to conclude that a show — up was justified.
3. The Admission of Zimmerman's Prior Testimony
On April 18, 1989, Zimmerman testified at what the parties refer to as a "felony hearing" — a hearing under CPL § 180.50 to determine whether there was reasonable cause to believe that Morgan committed an offense other than a felony. The testimony was not extensive; it takes up 25 pages of the hearing transcript, half of which transcribe the cross — examination of Zimmerman by Morgan's attorney.
After the hearing, Zimmerman's health deteriorated. An effort to examine her pursuant to CPL § 660.50 was approved by the court but failed because Zimmerman became unable to testify under any conditions. The prosecutor then sought an order pursuant to CPL § 670.10 permitting the use of Zimmerman's hearing testimony at trial, which the court granted.
CPL § 660.50 authorizes a pretrial examination of a witness, "in the same manner as would be required were the witness testifying at trial," to preserve the testimony in the event that the witness is unavailable at trial.
CPL § 670.10 provides in relevant part, as follows: "(1) Under circumstances prescribed in this article, testimony given by a witness at . . . (b) a hearing upon a felony complaint conducted pursuant to section 180.60 . . . may, where otherwise admissible, be received into evidence at a subsequent proceeding in or relating to the action involved when at the time of such subsequent proceeding the witness is unable to attend the same by reason of . . . illness or incapacity. . . . "
Morgan challenges this determination on several grounds. First, he asserts that he was deprived of the opportunity to cross — examine Zimmerman on the issue of Morgan's identity. My review of the hearing transcript and the trial record leads me to conclude otherwise. Although Morgan correctly asserts that the purpose of the hearing was limited, and that several of the prosecutor's objections were sustained, Morgan's lawyer was permitted to elicit significant evidence related to Zimmerman's ability to identify her assailant.
For example, Morgan claims that his lawyer was precluded from cross — examining Zimmerman about the lighting conditions in her home when she was attacked, but the record contradicts his claim. Morgan's counsel elicited that (a) there was a timer light in the room, which was on at the time of the crime; (b) at shortly after 6:00 p.m. on April 12, it was still quite light out; (c) there were windows on four sides of the room; (d) although the windows had blinds, they were not drawn, as Zimmerman had some plants on the sills. (Hr'g Tr. at 13.) Morgan's counsel further elicited from Zimmerman a description of the perpetrator, that her vision in one eye was blurry and, of course, that her glasses were knocked off by Morgan's first blow to her head. (Id. at 14 — 16.) Most of this evidence was unfavorable to Morgan, but he can hardly complain that he was denied all opportunity to examine Zimmerman concerning lighting and her ability to observe her attacker.
Morgan further contends that the trial court erred by failing to conduct a hearing on the People's request to use Zimmerman's hearing testimony at trial, as required by state law CPL § 670.20(1). This contention is not cognizable on habeas review. Where, as here, it did not violate a state defendant's federal constitutional rights to receive into evidence the prior testimony of a witness, a violation of a state procedural rule (assuming one occurred) would not afford Morgan a basis for habeas relief. See Lewis v. Jeffers. 497 U.S. 764, 780 (1990) ("federal habeas corpus relief does not lie for errors of state law").
In finding no violation of Morgan's right to cross — examine witnesses, I am mindful that the right "is one of the most firmly established principles under Supreme Court law." Cotto v. Herbert. 331 F.3d 217, 248 (2d Cir. 2003). However, the right is not absolute. Morgan's trial counsel would no doubt have conducted a fuller cross — examination of Zimmerman than was conducted at the hearing. However, a criminal defendant is entitled to a fair trial, not a perfect one, Ross v. Oklahoma. 487 U.S. 81, 91 (1988), and my review of the trial record persuades me that Morgan received a fair trial. Cf. Cotto. 331 F.3d at 249 (finding impingement on right of confrontation "where defendant was completely precluded from cross — examining the only living person to identify Cotto as the shooter").
Moreover, this is not a case in which the only evidence of identification was provided by a witness whose cross — examination was curtailed. Morgan was arrested shortly after the crime and in the immediate vicinity. He had Zimmerman's wallet in his back pocket, and he used her kitchen knife to assault the police. He immediately discounted the severity of his crimes against Zimmerman by stating that she "was only an old lady."
I cannot conclude that the state court's rejection of Morgan's confrontation claim was an unreasonable application of federal law.
4. The Prosecutor's Summation and the Readbacks of Testimony
In her summation, the prosecutor described Morgan as "vicious and brutal" and "greedy." (Trial Tr. at 445 — 46.) She also focused on the frailty and bravery of Zimmerman, argument that Morgan complains was intended to appeal to jurors' sympathy. (See Id. at 447 — 48.) I have reviewed the transcript of the entire trial, and though the prosecutor was overheated at times, I would find no merit to Armstrong's objections even on a de novo review. All of the challenged remarks were fairly based on the evidence or fair response to arguments in the defense summation. Especially in light of the deference owed to the state court decision under AEDPA, Morgan's claim must be rejected.
The mistaken readbacks of Zimmerman's hearing testimony (which inadvertently included redacted testimony that she might have suffered a hairline fracture) were properly dealt with by the trial court after the mistakes were made. Moreover, compared to Zimmerman's testimony about the attack itself, I do not regard her reference to a possible hairline fracture as especially prejudicial to Morgan. In any event, the jury was instructed to disregard that part of the readbacks, and no further relief was warranted at that time. It was not unreasonable for the state court to reject Morgan's claim that federal constitutional rights were violated by these events.
5. Ineffective Assistance of Trial Counsel Claim
Morgan claims that his trial counsel was ineffective because he failed to (1) argue that the evidence supporting petitioner's assault, attempted murder, and burglary convictions was insufficient; (2) make a motion to sever the indictments; and (3) object to the prosecutor's misconduct. Morgan first raised this claim in his motion to vacate judgment in the state court; he did not argue that he was denied effective assistance of counsel on direct appeal. In opposing Morgan's motion to vacate judgment, the People argued that the ineffective assistance claim was procedurally barred under § 440.10(2)(c) because it could have been raised on direct appeal and that, in any event, it was without merit. In denying the motion, the state court found "nothing [in the submissions to the court] which supports the request to vacate the judgment." (Proceedings Tr. at 3,) However, Justice Latorella did not specify the grounds upon which he was deciding the motion.
Although Morgan refers to multiple indictments, since there were no co — defendants, this argument amounts to a challenge to his trial counsel's failure to move for separate trials on different charges.
Justice Charles J. Latorella of New York Supreme Court, Queens County, ruled orally on the motion to vacate on January 10, 1996.
A federal court may not review a state court decision that rests on an adequate and independent state procedural ground unless the petitioner can show both cause and prejudice. Rhagi v. Artuz. 309 F.3d 103, 106 (2d Cir. 2002). "In order for federal review to be barred, `The state court must actually have relied on the procedural bar as an independent basis for its disposition of the case.'" Fama v. Commissioner of Corr. Servs.. 235 F.3d 804, 809 (2d Cir. 2000) (quoting Harris v. Reed. 489 U.S. 255, 261 — 62 (1989)). Accordingly, Morgan's claim is not procedurally barred. However, the claim has no merit.
The standard for determining whether a petitioner received ineffective assistance of counsel is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington. 466 U.S. 668, 686 (1984). To satisfy this standard, a petitioner must establish two elements. First, he must show that counsel's performance was deficient, falling below an objective standard of reasonableness that is measured against "prevailing professional norms." Id. at 688. Second, he must show 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. In assessing the reasonableness of counsel's performance, "[j]udicial scrutiny of counsel's performance must be highly deferential," and the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana. 350 U.S. 91, 101 (1955)).
Inasmuch as I have concluded that the sufficiency argument and the prosecutorial argument have no merit, it follows that it was hardly ineffective assistance of counsel for trial counsel not to make them. As for the claim that counsel should have sought a severance, i.e., multiple trials of the charges that all arose out of a course of conduct that occurred in a matter of minutes, the strong preference of joint trials would have rendered such a motion meritless.
In sum, I agree with the state court's conclusion that there is no support for Morgan's claim of ineffective assistance of counsel. At the very least, that conclusion cannot reasonably be characterized as an unreasonable application of the Strickland standard.
CONCLUSION
For the foregoing reasons, the petition is denied. Because Morgan has failed to make a substantial showing of a denial of his constitutional rights, no certificate of appealability shall issue.
So Ordered.