Petitioner Timothy Carl Shane filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent Clark Taylor, Warden, filed a motion to dismiss. The matter was referred to Magistrate Judge Dave Whalin for findings of fact and recommendations on dispositive matters. Judge Whalin issued findings of fact and a recommendation that the petition be dismissed with prejudice and that Shane be denied a certificate of appealability. Shane has objected to Judge Whalin's findings of fact and recommendation. After reviewing the record, Judge Whalin's findings of fact and recommendation, and Shane's objections, the court will adopt Judge Whalin's findings of fact and recommendation. In addition, the court provides the following opinion to address certain issues raised by Shane's objections.
Initially, the court notes that the findings of fact section of Judge Whalin's opinion provides a thorough and accurate overview of the relevant facts and procedural history of this case. Thus, this court will not repeat those items in detail and will address them only as needed to address Shane's objections. Likewise, in light of Judge Whalin's thorough explanation of the standards for habeas review of state court convictions, the court will not further expound on those standards.
Shane advances three grounds for which he claims he is entitled to habeas relief. First, he contends that his rights under the Interstate Agreement on Detainers ("IAD"), codified in Kentucky at KRS § 440.450, were violated. Second, he argues that the prosecution acted vindictively in charging him with additional offenses after the Kentucky Supreme Court reversed his initial conviction. Third, Shane argues that his trial attorney was ineffective for failing to properly argue that Shane's rights under the IAD were violated and for entirely failing to argue the vindictive prosecution claim.
As to the IAD claim, Judge Whalin found that Shane was not entitled to habeas relief on the basis that Shane had not shown that a fundamental defect or complete miscarriage of justice occurred, such as is required to make an IAD violation a cognizable habeas claim. In his objections to that portion of Judge Whalin's ruling, Shane states, "The Jefferson Circuit Court didn't even have an evidentiary hearing, yet the Court claims that its decisions were made based on a hearing that[']s nowhere in the record." This court understands Shane to mean that Judge Whalin improperly relied upon the fact finding and procedural history section of the Circuit Court's decision in finding that Shane's had not shown that any alleged IAD violation constituted a fundamental defect. To provide crucial context to this issue, the court will present a brief summary of the relevant procedural history.
Shane was initially indicted in 2004. At the time, he was incarcerated in Colorado on unrelated charges. Pursuant to a notice of detainer under the IAD, Shane was returned to Kentucky to face trial. Shane's trial pursuant to the initial indictment commenced in October 2005, at which time Shane was convicted of first-degree burglary and acquitted of first-degree sodomy. The jury did not reach a verdict on a charge of first-degree rape. The Circuit Court sentenced Shane to 35 years' imprisonment in December 2005. Thereafter, Shane appealed his conviction. While his appeal was pending, Shane was returned to Colorado to continue serving his unrelated Colorado sentence.
On December 20, 2007, the Kentucky Supreme Court entered an opinion reversing Shane's conviction and remanding for a new trial; that opinion became final on February 12, 2008. Thereafter, the Commonwealth Attorney's Office obtained a new indictment against Shane , which added new charges that he had not previously faced. The Commonwealth Attorney's Office also issued a second notice of detainer for Shane's return to Kentucky to face a retrial. Shane requested a final disposition of that detainer and was returned to Kentucky. Prior to his retrial, Shane moved to dismiss the indictment, inter alia, because of an alleged violation of the IAD. There is no written record of the Circuit Court's disposal of that motion, nor is there any video recording or transcript of a proceeding in which the Circuit Court handled the motion.
Shane proceeded to a retrial and was convicted of first-degree rape, first-degree burglary, second-degree robbery, and first-degree unlawful imprisonment. Thereafter, Shane filed a post-conviction motion in the Circuit Court arguing that his convictions should be vacated because they were obtained in violation of the IAD. The Circuit Court issued a written decision denying that post-conviction motion. In doing so, the Circuit Court provided the following relevant facts:
Shane was returned to Kentucky and arraigned on the new indictment in July 2008. The Court then scheduled a pretrial conference of September 3, 2008, and a trial date of October 1, 2008. No objection was raised to either date. Shane asked for and was appointed counsel, the Hon. Chuck Gray. Mr. Gray appeared with Shane on September 3, 2008, and all parties acknowledged the upcoming date, again without objection. On September 30, 2008, Shane appeared in Court pursuant to a motion to dismiss, in which counsel argued that the indictments should be dismissed because the Court had failed to try Shane within 180 days of when the Court issued a warrant for his arrest in March 2008. Additionally, Shane argued that once the Supreme Court reversed the conviction, the original detainer became active again, and started the 180 day clock running again. The Court denied the motion to dismiss, citing the language of the IAD, and ruling that the 180 day clock began to run on June 25,
2008, when Shane complied with the letter of the law and properly notified the Court and the Commonwealth of his desire to be returned to face the charges. Shane's counsel then moved to continue the trial of the case, citing the short period of preparation time between Shane's arraignment and the trial date. The Court granted the motion to continue, and the trial was scheduled for February 10, 2009. On that date, the Commonwealth was unable to proceed due to illness. While Shane objected to a continuance, counsel acknowledged that the prosecutor's illness was such that he would be unable to be present in court and suggested a relatively short continuance. The Court continued the case until April 20, 2009, and the case commenced to trial on that date.
The Circuit Court continued to reject the IAD claim in Shane's post-conviction motion:
Shane's argument, pursuant to CR 60.02, that the case must be dismissed for violation of the IAD also fails. Shane raised this issue following his first trial, which the Court declined to address while the case was on appeal. The issue was raised again by Shane almost immediately after he was reindicted and the Court held an extensive hearing on the issue the day before his October 2008 trial date. At that time, the Court found no violation of the IAD. Shane then moved for a continuance, waiving any further objection. Following the guilt phase of the second trial, Shane negotiated a 30 year sentence, and agreed to give up any appeal of the guilt phase. Shane did not reserve the right to appeal any procedural issues. The Court finds no reason to grant the extraordinary remedy of vacating the conviction pursuant to CR 60.02.
Shane appealed to the Kentucky Court of Appeals, again asserting his IAD claim. In reviewing the Circuit Court's recitation of its denial of Shane's pretrial motion to dismiss the indictment for a violation of the IAD, the Kentucky Court of Appeals stated in a footnote:
There is nothing in the record before us supporting these findings by the circuit court. The September 30, 2008 hearing at which the court heard arguments concerning the alleged violations of the IAD, the court allegedly denied Shane's motion to dismiss, Shane's defense counsel moved for a continuance, and the court granted that motion is not in the record on appeal. In fact, the tape receipt that was filed in this Court on appeal specifying which hearings could be found at which part of the video record states as follows: "The arraignment on 4-5-09 [and] several motion hours were specified on the designation of record, however, it was the practice of Judge Conliffe to not record his motion hours." (Capitalization changed). Additionally, the court's denial of Shane's motion to dismiss, Shane's motion for a continuance, and the court's granting of that motion were not reduced to writing. We remind the circuit court and the parties that the court speaks only through its written record. See Holland v. Holland, 290 S.W.3d 671, 675 (Ky. App. 2009). Regardless, because Shane's claims in the present appeal fail due to procedural errors on his part, we need not review the merits of his claims.
The Kentucky Court of Appeals proceeded to reject Shane's IAD claim on the ground that a motion pursuant to CR 60.02 was the wrong manner of raising such a claim before the Circuit Court. The Kentucky Court of Appeals stated that Shane ...