Morrow v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
Revised May 19, 2004
May 11, 2004
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk

No. 03-41130

ROBERT BRICE MORROW

Petitioner - Appellant

v.

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION

Respondent - Appellee

Appeal from the United States District Court
for the Eastern District of Texas
No. 6:00-CV-402

Before KING, Chief Judge, and EMILIO M. GARZA and BENAVIDES,
Circuit Judges.

PER CURIAM:*

Robert Brice Morrow was convicted of capital murder by a

Texas jury and sentenced to death. After exhausting his state

remedies, Morrow filed a § 2254 petition for a writ of habeas

corpus in federal district court in which he alleged, inter alia,

that his trial counsel had been constitutionally ineffective.

The district court granted the State’s motion for summary

*
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that this opinion should not be published and is not precedent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 5TH CIR. R.
47.5.4.
judgment and refused to grant a certificate of appealability

(“COA”) on any of Morrow’s claims. Morrow now seeks a COA from

this court for his claims that his trial attorneys rendered

ineffective assistance by failing to make multiple objections

during the prosecutor’s cross examination of him. For the

following reasons, we DENY Morrow’s request for a COA.

I. BACKGROUND

On the evening of April 3, 1996, Lisa Allison took her

father’s car to a local carwash but never returned home. At

Morrow’s trial for capital murder, Bryan McNeil testified that he

saw Allison at the carwash that night as he was cleaning his

truck. McNeil noticed a man crossing the street toward the

carwash; although McNeil never positively identified Morrow,

Morrow matched the physical description that McNeil provided.

Subsequently, while McNeil was filling his truck with gasoline,

he heard a short, startling scream and observed that the man who

had crossed the street was laying on top of Allison in the front

seat of her car. Although McNeil could not see the man’s hands

at any time during this incident, he hypothesized that the two

individuals were boyfriend and girlfriend because Allison did not

appear to be struggling. A few moments later, the man shifted

his position, Allison slid over to the driver’s seat, and the man

moved into the passenger seat of the car. Allison then drove the

car, with the man inside, in the direction of the Trinity River.

2
 Testimony and evidence presented at Morrow’s trial indicated

that the authorities discovered Allison’s body in the Trinity

River the next morning. An autopsy revealed that she had been

beaten before death and had sustained numerous injuries. The

autopsy also suggested that her death was caused by a combination

of several skull fractures and a large cutting wound to her neck

that severed her jugular vein. Later that day, the authorities

found Allison’s father’s car abandoned within a few miles of

Morrow’s house. A number of hair and blood samples from inside

the car matched the victim, Allison, while other blood stains

matched Morrow’s DNA profile. In particular, the DNA extracted

from a blood stain on the rear seat was consistent with a mixture

of Allison’s and Morrow’s DNA.

In addition, Cecil Smith, one of Morrow’s acquaintances,

testified that Morrow told him––prior to Allison’s death––that it

would be relatively easy to abduct a woman from this particular

carwash at knife point, rob her, and sell her possessions for

drug money. Morrow’s friend, Dane Schisler, also testified that

he had dropped Morrow off at the store across the street from the

gas station and carwash on April 3, 1996, at approximately the

same time that McNeil observed the man who fit Morrow’s

description approach the carwash. Moreover, Brad Keaton, another

of Morrow’s acquaintances, testified that he saw Morrow walking

down the road toward his house at around midnight on April 3,

1996. According to Keaton, Morrow had scratches on his arm and a

3
good deal of blood on his arms and legs. Keaton’s description of

the clothes worn by Morrow was consistent with McNeil’s

description of the clothing worn by the man who approached

Allison at the carwash earlier that night. Keaton stated that

Morrow claimed he had received his injuries in a car wreck.

Morrow exercised his right to testify in his own defense,

and, during his direct examination, Morrow claimed that he did

not commit the crime. Nevertheless, the jury found Morrow guilty

of capital murder and sentenced him to death. The Texas Court of

Criminal Appeals affirmed his conviction and the United States

Supreme Court denied his petition for certiorari. Morrow then

filed an application for a writ of habeas corpus in the state

trial court in which he claimed, inter alia, that his trial

attorneys had been constitutionally ineffective when they failed

to object to numerous questions and comments made by the

prosecutor during Morrow’s cross examination. The state court

rejected the application. In an unpublished opinion, the Texas

Court of Criminal Appeals adopted the state habeas court’s

findings of fact and conclusions of law and denied Morrow’s

request for relief.

Morrow then filed a petition for habeas corpus under 28

U.S.C. § 2254 (2000) in federal district court, reasserting his

contention that his trial counsel’s conduct during his cross

examination was constitutionally deficient. The district court

granted the State’s motion for summary judgment and denied

4
Morrow’s request for a COA. Thereafter, Morrow filed an

application for a COA with this court.

II. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act

(AEDPA), Morrow must obtain a COA before appealing the district

court’s denial of habeas relief. See 28 U.S.C. § 2253(c) (2000);

Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). To obtain a

COA, Morrow must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme

Court has stated that, to make a “substantial showing,” a

petitioner must demonstrate that “reasonable jurists could debate

whether (or, for that matter, agree that) the petition should

have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed

further.” Miller-El, 537 U.S. at 336 (quotation marks omitted).

Additionally, “[b]ecause the present case involves the death

penalty, any doubts as to whether a COA should issue must be

resolved in [the petitioner’s] favor.” Hernandez v. Johnson, 213

F.3d 243, 248 (5th Cir. 2000).

Although we need not decide whether Morrow’s appeal

ultimately will succeed at this stage in the proceedings, the COA

determination does require “an overview of the claims in the

habeas petition and a general assessment of their merits.”

Miller-El, 537 U.S. at 336; accord Henderson v. Cockrell, 333

5
F.3d 592, 604 (5th Cir. 2003). In making this assessment, we are

mindful of the deferential standard of review that AEDPA required

the district court to apply to Morrow’s claims. See Miniel v.

Cockrell, 339 F.3d 331, 336 (5th Cir. 2003). Because the state

habeas court adjudicated Morrow’s ineffective-assistance claim on

the merits, the district court was required to defer to that

court’s decision––that Morrow’s counsel was not constitutionally

defective––unless it 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). Moreover, the state court’s factual findings enjoy

a presumption of correctness, which Morrow bore the burden of

rebutting “by clear and convincing evidence.” Id. § 2254(e)(1).

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Under Strickland v. Washington, 466 U.S. 668, 687 (1984), to

establish ineffective assistance of counsel, Morrow was required

to show both that his counsel’s performance was deficient and

that this deficient performance prejudiced his defense. Habeas

relief is unavailable if Morrow fails to establish either prong

of the Strickland analysis. Riley v. Cockrell, 339 F.3d 308, 315

(5th Cir. 2003); see Strickland, 466 U.S. at 697 (“[T]here is no

reason for a court . . . to address both components of the

inquiry if the defendant makes an insufficient showing on one.”).

To prove that his counsel was constitutionally deficient, Morrow

6
must show that his trial counsel’s performance fell below an

objective standard of reasonableness. Strickland, 466 U.S. at

690. The Supreme Court has cautioned courts not to second-guess

counsel’s decisions through the distorting lens of hindsight,

however: thus, we must employ “a strong presumption that

counsel’s conduct falls within the wide range of reasonable

professional assistance . . . [and], under the

circumstances, . . . might be considered sound trial strategy.”

Id. at 689 (citations and internal quotation marks omitted). In

addition to proving his attorneys’ deficiencies, Morrow must also

demonstrate that he was prejudiced by their unprofessional

performance. That is, Morrow “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 the district court, Morrow claimed that his counsel

rendered ineffective assistance during his cross-examination by

the prosecuting attorney. Morrow enumerated a plethora of

objections he believes should have been made––to both the

prosecutor’s questions and his comments responding to Morrow’s

answers. According to Morrow, had his attorneys objected, the

trial court would have sustained their objections and the jury

might then have acquitted him of capital murder. We group these

objections into relevant categories and examine each in turn.

7
 1. Prosecutor’s Mode of Interrogation

Morrow first contends that his attorney was deficient for

failing to object to the format of the prosecutor’s questions.

Morrow claims that the prosecutor “contracted” with him

“concerning the scope of [the] cross-examination” by promising

only to ask questions calling for a “yes,” “no,” or “I don’t

know” answer. The state habeas court disagreed, noting that the

prosecutor merely stated that he was “gonna try to” follow this

format. The state court found that Morrow’s attorneys did not

object to the open-ended questions subsequently posed by the

prosecutor because they felt any objection would be overruled and

that numerous interruptions might cause Morrow, who they believed

to be temperamental, to “loos[e] his cool” in front of the jury.

Because Morrow proffered no evidence to rebut these factual

findings, the district court held that counsel’s decision not to

object to the mode of interrogation was objectively reasonable.

In light of these findings, we do not believe that reasonable

jurists would debate or find wrong the district court’s

conclusion that counsel’s inaction was based on sound trial

strategy.

2. Prosecutor’s Comments on Morrow’s Testimony

Morrow also contends that his trial counsel failed to object

to eleven different comments made by the prosecutor during the

8
course of his testimony.2 Morrow further complains that although

his attorney did successfully object to a twelfth comment,3 they

did not ask that the jury be instructed to disregard it.

According to Morrow, these twelve comments were argumentative and

prejudicial; had his attorneys both objected to and asked for

limiting instructions regarding the comments, the jury might have

believed his exculpatory testimony. The state habeas court

disagreed. It found that Morrow’s attorneys chose not to make

these objections because they believed––after considering

Morrow’s “general mood, mannerisms, tone of voice, and overall

body language”––that Morrow was responding well to the cross

2
The prosecutor’s comments included the following
references to alleged discrepancies between Morrow’s testimony on
direct examination and his earlier statements to the police: (1)
“[W]e have already run into one” discrepancy; (2) “and now you
have added somebody else [to the list of people you saw at the
crack house that night]”; (3) “Now, did you lie to the Texas
Ranger or are you lying to this jury?”; and (4) “This jury needs
to hear the truth.” Other comments are alleged to be either
sarcastic or argumentative, including: (5) “You remember some of
the details pretty well” (after Morrow claimed to have forgotten
a detail of his alibi); (6) “So Chief Tidwell just got up there
and he told a bald faced lie, is that what you are saying?”; (7)
“But [Chief Tidwell] is lying again is that right? . . . So he is
lying again, right?”; (8) “Do you really expect [the jury] to
believe that?”; (9) “I guess you had a sudden flash of memory”;
(10) “Two weeks and a month”––Morrow’s two guesses as to how long
he had been collecting unemployment benefits––“is quite a bit of
difference”; and (11) regarding the murder weapon, “thank God
[Allison’s father] didn’t know why I was asking it, but you heard
him say that when he had [the ratchet] it wasn’t bent.”
3
In response to Morrow’s remark that he did not believe
he had made a statement that the prosecutor claimed he had made,
the prosecutor replied: “Well, we are making a tape for the jury
so they can figure out if they didn’t hear it.”

9
examination and, therefore, was gaining “some points” with the

jury. Additionally, the state court found that Morrow’s counsel

believed the objections might have either flustered Morrow or

interrupted his train of thought. Again, because Morrow provided

no evidence to rebut these factual findings, the district court

presumed that they were correct and held that defense counsel’s

strategic choice not to object to these comments was objectively

reasonable.

We do not believe that reasonable jurists would find this

conclusion debatable. “[C]ounsel’s failure to object to improper

remarks by a prosecutor is not ineffective assistance unless the

remarks are so prejudicial as to render the trial fundamentally

unfair.” Jones v. Estelle, 632 F.2d 490, 492-93 (5th Cir. 1980);

see also Neill v. Gibson, 278 F.3d 1044, 1058 (10th Cir. 2001)

(holding that, if an ineffective-assistance claim based on not

objecting to a prosecutorial comment “does not implicate any

specific constitutional right, [the petitioner] will be entitled

to habeas relief only if the prosecutor’s improper remark

resulted in a fundamentally unfair proceeding”). As we explain

below, however, extensive evidence of Morrow’s guilt was

presented at trial, belying Morrow’s conclusory argument that his

counsel’s inaction somehow prejudiced his defense. Thus, because

Morrow has not demonstrated a reasonable probability that these

comments either rendered his trial fundamentally unfair or

affected the outcome of the proceeding, we decline to grant a COA

10
on this issue. See Hubbard v. Haley, 317 F.3d 1245, 1261 (11th

Cir. 2003) (denying federal habeas relief because defense

counsel’s decision “not to ‘jump up and down’ with

objections . . . thereby ‘annoying’ the jury” was an objectively

reasonable strategy).

3. Cumulative Questioning

Morrow’s next set of contentions involves his counsel’s

failure to object to the prosecutor’s repetitive questioning of

Morrow regarding six subjects during his cross examination.4 He

further complains that his counsel did not object, during the

cross examination, to the prosecutor’s repeated playing of

portions of a tape-recorded conversation between Morrow and local

law enforcement. The state habeas court found that Morrow’s

attorneys did not lodge these objections because they did not

want to interrupt Morrow’s positive mood during the cross

examination, did not want the jury to believe that they were

hiding damaging testimony, and did not believe that the

objections would be sustained. Thus, the state court held that

4
These questions focused on the following: (1) whether
Morrow was stabbed in the leg on the night of April 3, as he told
the police, or whether he was shot in the leg, as he testified at
trial; (2) whether Morrow remembered the price that he paid for a
twelve-pack of beer on April 3; (3) why Morrow did not seek
medical treatment if he was shot in the leg; (4) whether Chief
Tidwell had given false testimony regarding his interrogation of
Morrow; (5) whether Morrow asked Dane Schisler to lie to the
police about the events of April 3; and (6) whether Morrow asked
Brad Keaton to tell the police that he saw Morrow walking home
between 2:30 and 3:00 a.m., not between 12:00 and 1:00 a.m., on
April 3 (the night of the murder).

11
Morrow’s counsel made a strategic choice to avoid making a string

of overruled objections, which the attorneys believed would be

more harmful than beneficial to Morrow.

Morrow proffered no evidence to rebut these findings. The

district court therefore concluded that defense counsel’s choice

not to make these objections was objectively reasonable.

Considering that Morrow provides neither a legal basis for

concluding that the prosecutor’s questions were improper in the

first instance5 nor an explanation of how the repetition of

admissible testimony could have affected the outcome of the

proceeding, we find the district court’s resolution of these

claims unassailable.

4. Impeachment

Next, Morrow contends that his counsel should have objected

to some of the prosecutor’s impeachment evidence; specifically

(1) Morrow’s three misdemeanor convictions and (2) the tape-

recorded conversation between Morrow and law enforcement. First,

under Rule 609(a) of the Texas Rules of Evidence, Morrow

explains, a defendant who testifies as a witness may only be

impeached by evidence of a prior conviction if the conviction was

for a felony or a crime involving moral turpitude. See Theus v.

State, 845 S.W.2d 874, 877 n.1 (Tex. Crim. App. 1992) (en banc);

5
Morrow does explicitly claim that his tape-recorded
statement was inadmissible; however, as we explain in the next
section, he does not proffer a legal basis for this contention.

12
id. at 879 (requiring also that the probative value of the

conviction outweigh its prejudicial effect). But, in addition to

impeaching Morrow with his prior felony convictions during the

cross examination, Morrow notes that the prosecutor also inquired

about his marijuana possession, D.W.I., and failure to identify a

fugitive from justice convictions––all three of which, he claims,

were misdemeanors. Morrow complains that his counsel lodged an

objection only after the third crime was mentioned. Notably, the

trial court overruled this objection, finding that Morrow had

opened the door to admission of his prior misdemeanor and felony

convictions by his direct examination testimony.

The state habeas court held that defense counsel’s decision

not to object to the use of Morrow’s marijuana and D.W.I.

offenses as impeachment evidence was objectively reasonable.6

The state court found that Morrow’s attorneys thought the

objections would have been overruled and would also have been

futile because the jury had already heard about Morrow’s numerous

felony convictions in three different states. Further, the state

court found that defense counsel felt that Morrow’s own testimony

that he was high on crack cocaine on the night of the murder

6
Of course, because his counsel objected under Rule
609(a), albeit unsuccessfully, to the prosecutor’s discussion of
Morrow’s failure-to-identify conviction, Morrow cannot now
contend that his counsel was ineffective regarding the admission
of this conviction without identifying an alternate ground on
which the objection would have been sustained. See Koch v.
Puckett, 907 F.2d 524, 527 (5th Cir. 1990).

13
would overshadow his past misdemeanors in the eyes of the jury.

The district court deferred to the state court’s findings

and held that Morrow’s counsel’s decisions were objectively

reasonable. Morrow points to no evidence that might rebut these

findings; instead, he merely makes a conclusory allegation that

his counsel was obviously deficient for not objecting to these

“inadmissible misdemeanor convictions.” In light of the

substantial impeachment evidence that had already been admitted

and the fact that the trial court eventually ruled that Morrow

had opened the door to the use of his misdemeanor convictions,

jurists of reason would not find it debatable that Morrow has not

met his burden of showing that there is a reasonable probability

that he was prejudiced by the admission of his D.W.I. and

marijuana possession convictions. Cf. Jones v. Estelle, 622 F.2d

124, 126 (5th Cir. 1980) (holding that, because “four [of the]

convictions thoroughly impeached [the petitioner’s] credibility,”

“any error in admitting the other convictions was rendered

harmless”); Gibson v. United States, 575 F.2d 556, 559 (5th Cir.

1978) (“[I]n light of the overwhelming evidence of petitioner’s

guilt and the fact that at least two of the convictions used to

impeach [his] testimony were valid, . . . the introduction of the

[invalid] convictions constituted harmless error.).

Morrow’s other complaint regarding the prosecutor’s

impeachment evidence involves the admission of a tape-recorded

conversation between Morrow and Ranger Cook, which the prosecutor

14
used to demonstrate inconsistencies between Morrow’s trial

testimony and his prior statements to law enforcement.7 Morrow

claims, without citing the record, that he testified that he was

not entirely truthful in his conversation with Ranger Cook before

the tape was introduced. Based on this admission, Morrow argues

that his attorney should have objected to the prosecutor’s use of

the tape-recorded statement during cross examination. But Morrow

provides no legal support for his contention that the tape-

recorded statement was inadmissible.8 Morrow instead faults his

counsel for “lodg[ing] no objection” to the use of the recorded

statement, without identifying the grounds upon which an

objection might have been granted. Therefore, Morrow has not

7
The district court did not address the question whether
Morrow’s counsel should have objected to the admissibility of the
tape-recorded statement in the first instance, probably because
Morrow’s argument against its admissibility is far from clear and
completely lacks legal authority. Nevertheless, out of an
abundance of caution, we will address this issue in the context
of Morrow’s COA application.
8
In fact, under Rule 613(a) of the Texas Rules of
Evidence, a witness may be impeached by a prior inconsistent
statement provided that he has not already “unequivocally
admitted” the inconsistencies between the prior statement and his
trial testimony. Aranda v. State, 736 S.W.2d 702, 708 (Tex.
Crim. App. 1987); see also McGary v. State, 750 S.W.2d 782, 786 &
n.3 (Tex. Crim. App. 1988). Morrow has identified no part of the
record in which he made such an unequivocal admission, however.
Thus, there is no basis for concluding that an objection to
playing portions of the prior statement, which contradicted
Morrow’s testimony at trial, would have been granted by the trial
court. Thus, Morrow has not demonstrated a reasonable
probability that his counsel’s failure to object constituted
constitutionally ineffective assistance. See Johnson v.
Cockrell, 306 F.3d 249, 255 (5th Cir. 2002).

15
made a substantial showing that he was denied a federal right.

5. Prejudicial Questioning

In the course of questioning Morrow about his prior felony

convictions in Louisiana, the prosecutor asked Morrow whether he

remembered that the New Orleans police discovered a ski mask in

Morrow’s car when they arrested him for one of his prior crimes.

Morrow contends that his attorneys should have objected to the

prosecutor’s questions about the ski mask, because he believes

that the fact that he previously owned a ski mask was irrelevant,

prejudicial, and introduced in an attempt to present improper

“‘propensity’ or ‘conformity’ evidence.”9 After reviewing the

record and an affidavit from Morrow’s trial counsel, the state

habeas court found that Morrow’s attorneys did not object to the

ski mask questions because, at that point in the cross

examination, Morrow’s body language was good and they were

pleased by the content of his answers to the prosecutor’s

inquiries. The district court presumed that these findings were

correct and also noted that there was nothing in the record

indicating that Morrow was either upset or surprised by the

prosecutor’s questions. Instead, Morrow calmly explained that he

probably had the ski mask in the car because he frequently used

them when he worked “on drilling rigs where it’s real cold

9
Morrow’s brief is silent as to what conduct the
prosecutor meant to imply he had a propensity for when he
mentioned Morrow’s ownership of a ski mask.

16
upstairs.” The district court then held that defense counsel’s

failure to object to these questions was not objectively

unreasonable. In light of these findings, which Morrow makes no

attempt to rebut, we conclude that he has not made a substantial

showing that his counsel was deficient in not challenging the

questions and allowing Morrow to answer.

6. Prosecutor’s Personal Beliefs and Opinions

Morrow further asserts that his attorneys were deficient in

not objecting to the prosecutor’s interjection of his personal

beliefs and opinions while cross examining Morrow. Morrow

highlights three comments, claiming that they were improperly

argumentative and, in making them, that the prosecutor was

improperly acting as a witness. With respect to the first

remark, the state habeas court found that Morrow’s counsel

believed that there was no grounds for objection because the

comment––“I am sure you have reasons for all of your lies,

haven’t you?”––immediately followed Morrow’s testimony that he

“had a reason to lie” to law enforcement before trial. Thus, the

state court found no suggestion that the remark was based on

evidence outside of the record. Agreeing, the district court

held that defense counsel’s decision not to object was

objectively reasonable. Because Morrow still asserts only that

the prosecutor was improperly “acting as a witness” in making

this statement, without explaining how the state habeas court’s

17
findings were clearly erroneous, we believe that reasonable

jurists would agree that Morrow’s counsel was not deficient in

not challenging the prosecutor’s question.

The other complained-of cross-examination comments include

the prosecutor’s assertions, “you took [Allison] down here”10 and

“I have shown where you have lied and lied and lied and lied

about this incident, isn’t that true?” The state habeas court

found that Morrow’s attorneys chose not to object to these

statements because Morrow remained calm in the face of the

prosecutor’s questions, Morrow’s responses were both logical and

believable, and constantly objecting to the prosecutor’s

questions and comments would have alienated the members of the

jury, risking the possibility that the jury would not credit

Morrow’s testimony. Because Morrow did not demonstrate that

these factual findings were clearly erroneous, the district court

assumed they were true and concluded that defense counsel’s

performance was objectively reasonable.

In the district court and in his COA application, Morrow has

cited Hall v. United States, 419 F.2d 582, 583-84 (5th Cir.

1969), for the proposition that a prosecutor may not discuss his

personal opinions during a trial because “[t]he power and force

of the government tend to impart an implicit stamp of

believability to what the prosecutor says.” Although Morrow

10
The prosecutor was referring to the scene of the
murder.

18
points us to no Texas authority, we note that a similar rule

applies in Texas state courts. See Wolfe v. State, 917 S.W.2d

270, 281 (Tex. Crim. App. 1996) (en banc) (explaining that a

prosecutor may not state his personal opinions, which are not

based on evidence in the record, at trial). Be that as it may,

Morrow proffers no evidence demonstrating that reasonable jurists

would disagree with the district court’s conclusion, under the

circumstances, that it was objectively reasonable for Morrow’s

counsel to make the strategic choice not to object to these

comments for fear of interrupting Morrow’s calm demeanor or

alienating the jury. Moreover, even if we assume that defense

counsel’s performance was deficient, we must deny Morrow’s

application for a COA because, considering the context of the

comments11 and the substantial evidence of his guilt adduced at

trial, he has not shown that he was prejudiced by these comments.

7. Prosecutor’s Comment on Morrow’s Right to Remain Silent

11
First, the prosecutor’s statement that Morrow “took
[Allison] down” to the murder scene arose as part of a series of
questions regarding whether Morrow had committed various aspects
of the crime. In response, Morrow strongly denied the
allegation, just as he had denied each of the prosecutor’s other
allegations, which were more properly phrased as questions. The
second comment––that Morrow had “lied and lied and lied and lied”
about the events of April 3––could not plausibly be interpreted
as anything other than a reference to Morrow’s repeated
admissions, during the cross examination, that there were
numerous discrepancies between his testimony on direct and the
stories that he told the police, his friends, and a newspaper
reporter prior to trial. Despite these circumstances, Morrow
provides no concrete argument explaining how the comments might
possibly have affected the outcome of the proceeding.

19
 In his final individual claim of error, Morrow asserts that

his trial counsel was constitutionally ineffective for failing to

object when the prosecutor commented on Morrow’s exercise of his

right to remain silent after being arrested for Allison’s murder.

At trial, Morrow testified that John Hampton murdered Allison and

told Morrow about the crime on three different occasions.

Because Morrow admitted that Hampton’s three alleged confessions

took place before Morrow voluntarily spoke with Ranger Cook, the

prosecutor asked Morrow whether he had informed Ranger Cook of

Hampton’s guilt:

Q: When you talked to Jeff Cook on August 12, 1996,
you were already in jail, weren’t you, you were already
under arrest for capital murder, weren’t you?

A: Yes, Sir.

Q: And you still didn’t tell anybody, at least you
didn’t tell Jeff Cook that John Hampton had done this,
did you?

A: No, sir. I was advised not to.

According to Morrow, these questions were objectionable

because they violated the rule laid down by the Supreme Court in

Doyle v. Ohio, 426 U.S. 610 (1976). In Doyle, the Court ruled

that the Due Process Clause of the Fourteenth Amendment prohibits

a state prosecutor from impeaching a defendant’s exculpatory

trial testimony by reference to his post-arrest, post-Miranda-

warnings silence. Id. at 618-19. Importantly, the Court

reasoned that because the Miranda warnings inform a defendant of

his right to remain silent, they implicitly assure him that his

20
silence will not later be used against him at trial. Id. at 618.

Yet four years later, in Anderson v. Charles, 447 U.S. 404

(1980), the Court clarified that a prosecutor may inquire about

the inconsistencies between a defendant’s testimony at trial and

his post-arrest statements to the police without violating due

process:

Doyle does not apply to cross-examination that merely
inquires into prior inconsistent statements. Such
questioning makes no unfair use of silence, because a
defendant who voluntarily speaks after receiving Miranda
warnings has not been induced to remain silent. As to
the subject matter of his statements, the defendant has
not remained silent at all.

Id. at 408 (emphasis added). Thus, the Court held that a

prosecutor may cross-examine a defendant regarding omissions in

his post-arrest statements when “[t]he questions [are] not

designed to draw meaning from silence, but to elicit an

explanation for a prior inconsistent statement.” Id. at 409.

Citing Charles, the state habeas court held that the

prosecutor’s questions did not violate Morrow’s due process

rights. Importantly, the state court found that, although Morrow

received Miranda warnings after requesting an interview with

Ranger Cook, he waived those warnings and chose not to exercise

his right to silence when he spoke to Cook about his activities

on the night of the murder. The district court agreed that the

prosecutor’s questions fell within the exception to Doyle carved

out by Charles, after noting that the prosecutor’s questions were

aimed at highlighting the discrepancy between Morrow’s trial

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testimony––that Hampton told Morrow he had committed the

murder––and Morrow’s arguably inconsistent statements to Ranger

Cook on the same subject––that Morrow did not believe Hampton was

capable of committing the murder.12 Thus, the district court

concluded that defense counsel’s decision not to object to the

prosecutor’s questions was objectively reasonable.

Under the standard of review laid out in AEDPA, we do not

believe that Morrow has made a substantial showing that his

constitutional right to the effective assistance of counsel was

violated when his attorneys did not object to the prosecutor’s

questions. See § 2253(c)(2). As we stated above, a federal

court may not grant habeas relief to a petitioner without first

determining that the state court’s decision “was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court.” § 2254(d)(1).

But, as the district court aptly explained, the state court’s

resolution of this issue was neither contrary to nor an

unreasonable application of Doyle and Charles because Morrow’s

prior statements to Ranger Cook involved the same subject matter

as, and were arguably inconsistent with, his exculpatory

statements at trial that he had known for months that Hampton was

12
During the cross-examination, the prosecutor played a
tape-recorded portion of Morrow’s post-arrest conversation with
Ranger Cook. After listening to his prior statements, Morrow
admitted that he had told Ranger Cook, in reference to Allison’s
murder, that “I don’t even think John Hampton is capable of doing
that.”

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guilty of the murder. See Pitts v. Anderson, 122 F.3d 275, 280

(5th Cir. 1997) (concluding that, under Charles, “where a

prosecutor’s questions and comments are aimed at eliciting an

explanation for an arguably prior inconsistent statement, no

Doyle violation occurs”).13 Thus, we hold that there is no basis

for granting Morrow’s application for a COA on this issue.

8. Strickland Prejudice

Even if we assume that reasonable jurists might debate

whether Morrow’s attorneys were deficient in not making one or

more of the objections enumerated in his petition for habeas

relief, Morrow’s claim that his attorneys were constitutionally

ineffective ultimately fails because he does not (nor can he)

“show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694. We

agree with the district court’s astute conclusion that, in light

of the substantial evidence of Morrow’s guilt adduced at trial,

“defense counsel’s conduct during cross-examination[] had no

bearing on the outcome of the trial.”

13
We note that the prosecutor posed his questions
regarding Morrow’s failure to inform Ranger Cook of Hampton’s
confessions before he confronted Morrow with the discrepancies in
his prior inconsistent statement. Because a review of the entire
colloquy demonstrates that this set of questions was posed in an
attempt “to elicit an explanation” for the discrepancies, and was
not simply “designed to draw meaning from silence,” the
questions’ sequence is immaterial to our analysis. Charles, 447
U.S. at 409.

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 As both the state habeas court and the district court

observed, trial testimony placed a man matching Morrow’s physical

and clothing description at the carwash when Allison was

abducted. Additionally, the forensic evidence revealed that

Morrow’s blood was in the victim’s car and, at least in one

stain, was mixed with the victim’s blood. Cecil Smith further

revealed that Morrow had previously bragged that it would be easy

to commit a crime strikingly similar to Allison’s abduction at

the same carwash.

Moreover, Morrow’s direct examination testimony regarding

his activities on the night of the murder was impeached by

evidence both of Morrow’s prior felony convictions and his prior

inconsistent statements. Morrow’s story was also contradicted by

several witnesses at trial. For example, Dale Schisler did not

agree that he dropped Morrow off at the carwash after Allison

left the carwash; instead, he placed Morrow at the carwash at the

same time that McNeil witnessed Allison’s abduction. In

addition, testimony from Charlotte Miller, John Hampton, and Gary

Ellison directly conflicted with Morrow’s version of his

activities on the night of the murder––that he spent part of the

evening at Miller’s house and later rode around looking for crack

cocaine with Miller, Hampton, and a third man, in what turned out

to be Allison’s car, before returning home in the early hours of

the morning. Lastly, Hampton, whom Morrow claimed had confessed

to killing Allison, denied making those statements and testified

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instead that he was at home with his wife on the night of the

murder. In sum, this evidence sufficiently demonstrates that

there is no reasonable probability that the verdict would have

been different had his counsel made the objections outlined above

during the prosecutor’s cross-examination of Morrow.14

IV. CONCLUSION

For the foregoing reasons, we DENY Morrow’s application for

a COA.

14
At the end of his COA application, Morrow argues that
his counsel’s constitutional ineffectiveness is clear “when one
considers the totality of defense counsel’s performance during
the cross-examination.” Although inchoate, it is plausible to
infer from this statement that Morrow is attempting to present a
claim of cumulative error. Nevertheless, because we have
concluded that each of Morrow’s individual claims of ineffective
assistance lacks constitutional merit, there is nothing to
cumulate and we deny Morrow’s application for a COA on this
ground. See Miller v. Johnson, 200 F.3d 274, 286 n.6 (5th Cir.
2000); see also Westley v. Johnson, 83 F.3d 714, 726 (5th Cir.
1996) (“Meritless claims or claims that are not prejudicial
cannot be cumulated, regardless of the total number raised.”).

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