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Smith v. Akers

United States District Court, Sixth Circuit

May 28, 2013

CHARLES SMITH Petitioner,
v.
DANIEL AKERS, WARDEN Marion Adjustment Center Respondent.

ORDER

DAVID L. BUNNING, District Judge.

This matter is before the Court on the Report and Recommendation (Doc. # 14) of the United States Magistrate Judge wherein he recommends that Petitioner Charles Smith's Petition for Writ of Habeas Corpus (Doc. # 1) pursuant to 28 U.S.C. ยง 2254 be denied. Petitioner subsequently filed Objections to the Report and Recommendation (Doc. # 22), which are considered de novo. Respondent having filed no response to the objections, and the time for submitting a response having now expired, the Report and Recommendation and Petitioner's Objections are ripe for review. For the reasons that follow, Petitioner's Objections are overruled, the Magistrate's Report and Recommendation is adopted as the Opinion of the Court, and Petitioner's habeas petition is denied.

I. INTRODUCTION

In this petition for writ of habeas corpus, Petitioner challenges his state court convictions for first-degree trafficking in a controlled substance, for possession of marijuana, and for being a second-degree persistent felony offender. (Doc. # 1). Specifically, Petitioner argues that his jury was not derived from a "fair cross section" of the community because African-Americans are systematically underrepresented on jury venires, that the introduction of his co-defendant's statement constituted a Crawford violation, and that there was insufficient evidence to support a conclusion that he sold cocaine. (Doc. # 1, at 5-6); (Doc. # 14, at 2-3, 7 and 9). Pursuant to local practice, the petition was referred to United States Magistrate Judge Gregory Wehrman for review and preparation of a report and recommendation.

In his Report and Recommendation, the Magistrate recommends that the petition be denied. In doing so, the Magistrate rejected Petitioner's "fair cross section" argument because his claim regarding the constitutionality of KRS 29A.040(1) was procedurally defaulted, and further noted that Petitioner could not overcome that default because he failed to raise an ineffective assistance of counsel claim in state court. (Doc. # 14, at 3-7). The Magistrate further concluded that neither the purported Crawford violation nor the purported insufficiency of evidence entitled Petitioner to relief. ( Id. at 7-11).

Petitioner's Objections focus on the Magistrate's rejection of his "fair cross section" argument and are as follows:

(1) The state procedural rule requirement is not the sort of firmly established and followed state practice that can prevent implementation of federal constitutional rights, because the asserted state procedural bar was not in effect, had not yet been triggered, or had not been firmly established and regularly followed at the time the alleged default occurred even if it has been since then.
(2) The state procedural rule on its face or as applied is arbitrary or violates due process
(3) The state rule on its face or as applied resulted in a finding that petitioner waived a federal right, even though federal law precludes such a finding, such as a lack of subject matter jurisdiction
(4) The state procedural rule on its face or as applied is designed to frustrate or has the effect of frustrating federal rights
(5) The state rule on its face or as applied did not allow a reasonable opportunity to have the issue as to the claimed federal right heard and determined by the state court in the circumstances of this case
(6) The state procedural rule on its face or as applied is pointless or an arid ritual of meaningless form and does not serve a legitimate state interest
(7) The means utilized to raise Petitioner's fair cross section claim, even if they did not comply with the state rule, substantially ...

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