MEMORANDUM OPINION AND ORDER
AMUL R. THAPAR, District Judge.
Petitioner Ralph Baze murdered Sheriff Stephen Bennett and Deputy Sheriff Arthur Briscoe when the officers tried to arrest him on an outstanding warrant. Nineteen years after a jury found him guilty and sentenced him to death, Baze seeks to overturn his conviction on the grounds that his trial attorney failed to properly object to a video of the crime scene played during the sentencing portion of his trial. While Baze's trial attorney vigorously objected to the admission of the video under state evidentiary rules, Baze claims that his attorney should have also cited federal constitutional law in making his objection.
This is not the first time Baze has raised a constitutional claim based on the crime scene video. As part of his federal habeas petition to this Court in 2002, Baze argued that the trial court's decision to admit the video violated several of his constitutional rights. The Court did not reach the merits of the claim, instead holding that it was procedurally defaulted. Baze now seeks relief from that judgment under Federal Rule of Civil Procedure 60(b), claiming that an ineffective-assistance claim is now available to him under the Supreme Court's recent decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012).
The question before the Court is simple: Is it ineffective assistance of counsel for a defense attorney to object to evidence by raising the stronger state-law grounds for excluding the evidence, but not the weaker federal grounds for excluding the evidence? The answer is clearly "No." The Court will therefore deny Baze's motion for relief from the Court's judgment.
A Kentucky jury convicted Ralph Baze of the 1992 murders of Sheriff Stephen Bennett ("Bennett") and Deputy Sheriff Arthur Briscoe ("Briscoe"). See Baze v. Parker, 371 F.3d 310, 315 (6th Cir. 2004). Bennett and Briscoe were attempting to arrest Baze at the time. Baze, a twice-convicted felon, was wanted in Ohio for assaulting a police officer, jumping bail, receiving stolen property, and flagrant non-support. Id. Bennett and Briscoe learned that Baze was at his home in Powell County, Kentucky, and there to arrest him on the outstanding Ohio warrant. Id. at 316. When the officers arrived, Baze fled into the surrounding woods and a shootout ensued. Id. Baze shot Bennett three times in the back with an assault rifle. Id. Briscoe ran out of ammunition, and Baze shot him twice in the back as he tried to escape. Id. at 316-17. Both Bennett and Briscoe died at the scene.
The Kentucky Supreme Court upheld Baze's murder conviction and sentence on direct appeal, Baze v. Commonwealth, 965 S.W.2d 817, 826 (Ky. 1997), and on his motion to vacate, Baze v. Commonwealth, 23 S.W.3d 619, 628 (Ky. 2000). The United States Supreme Court denied writs of certiorari to both Kentucky Supreme Court decisions. Baze, 371 F.3d at 317. Baze then filed a petition for habeas relief pursuant to 28 U.S.C. § 2254, which the Court denied on September 27, 2002. R. 36. The Sixth Circuit affirmed the Court's decision on June 9, 2004. Baze, 371 F.3d at 330.
Baze also sought access to Kentucky Department of Corrections ("KDOC") Officers for the purposes of mounting a clemency petition. Baze brought a declaratory judgment action in Franklin Circuit Court alleging that KDOC violated his right to due process when it denied his request to interview the corrections officers. The Franklin Circuit Court denied his request for relief, and the Kentucky Supreme Court affirmed that decision on January 21, 2010. Baze v. Thompson, 302 S.W.3d 57, 60 (Ky. 2010). Baze then filed a petition in this Court seeking access to prison personnel who were not willing to speak with his attorneys. See Baze v. Parker, 711 F.Supp.2d 774 (E.D. Ky. 2010). The Court denied that motion, and the Sixth Circuit affirmed that denial. Id. at 781; Baze v. Parker, 632 F.3d 338, 346 (6th Cir. 2011). Baze petitioned the United States Supreme Court for certiorari, but the high court declined to hear his case. Baze v. Parker, 132 S.Ct. 230 (2011).
Now, Baze has filed a motion under Federal Rule of Civil Procedure 60(b) seeking relief from the Court's 2002 judgment denying his § 2254 petition. R. 101. Specifically, Baze asserts that an ineffective-assistance-at-trial claim is now available to him after the Supreme Court's decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012). R. 101 at 19-23. Baze also asks the Court to hold his motion in abeyance while the Supreme Court considers Trevino v. Thaler, 133 S.Ct. 524 (2012), a case that further defines which state habeas hearings count as "initial-review collateral proceedings" under Martinez. R. 102. The Supreme Court has recently decided Trevino. See Trevino v. Thaler , No. 11-10189, slip op. (U.S. May 28, 2013).
I. Trial Counsel's Objection to the Video Presented at Baze's Sentencing Hearing
At Baze's trial, the government sought to introduce photographs and a videotape, which both showed the crime scene and the victims' bodies. R. 107-1 at 4-7 (Tr. 1510-13). Baze's motion creates the impression that his trial attorney made no objection whatsoever to the introduction of the videotape, see R. 101 at 2-3 & n.3, but that is not the case.
His trial attorney strongly objected to the introduction of both the photographs and the videotape. See R. 107-1 at 7 (Tr. 1513). Defense counsel made four arguments for excluding both the photographs and the videotape. He argued that: (1) their depictions were "gruesome;" (2) they "would have an emotional impact on the jury;" (3) they would be unduly "prejudicial" to Baze because they were "not necessary to prove any disputed facts;" and (4) they tended to show a "heinous, atrocious and cruel type act, " which would effectively introduce a "non-statutory aggravating factor" since Kentucky had not codified any statutory aggravating factor to account for the heinousness of the act. See id. at 5-7 (Tr. 1511-13). Defense counsel made an additional argument for specifically excluding the video, pointing out that because the officers' bodies had been moved before the video was shot the video footage was "even more gruesome" than the scene officers initially discovered. Id. at 7 (Tr. 1513). Finally, defense counsel argued that it would be redundant to introduce both the photographs and the video. See id. at 10 (Tr. 1516) (arguing that introducing both would be "redundant, cumulative"). The points that defense counsel raised about the video's content at trial are the same basic points that Baze now raises. Compare id. at 5-10 (Tr. 1511-16) (objecting to admission of photos and video), with R. 101 at 20-21 (asserting that defense counsel should have made the same basic arguments, but based on federal constitutional grounds).
While the trial court ultimately denied both objections, the objections did prompt the trial court to place conditions on the admission of the evidence at the guilt phase. The trial court required several pictures to be altered so that the jury would not see the victim's face. See R. 108-3 at 1-2 (Tr. 1471-72). Similarly, the trial court required the prosecution to present testimony qualifying the scenes depicted in the video for the ...