OPINION & ORDER
KARL S. FORESTER, District Judge.
On March 8, 2012, the petitioner, Orville Roark, pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 concerning his conviction in Menifee Circuit Court for one count of First Degree Robbery and of being a First-Degree Persistent Felony Offender [DE #1]. The respondent, Warden Joseph Meko, filed his response seeking dismissal of the petition on April 10, 2012 [DE #6]. Consistent with local practice, this matter was referred to the Hon. J. Gregory Wehrman, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b).
On January 29, 2013, the Magistrate Judge filed his Report and Recommendation, recommending, based on a review of the state court record and the applicable case law, that the petition be denied [DE #11]. After being granted an extension of time, Roark filed his objections to the Report and Recommendation on February 27, 2013 [DE #13]. As a result, this matter is now ripe for review.
I. FACTUAL AND PROCEDURAL BACKGROUND
Roark was charged by a Grand Jury of the Menifee Circuit Court with First Degree Robbery and with being a First Degree Persistent Felony Offender. Following a jury trial, Roark was convicted of both charges. Roark's judgment of conviction was entered on January 20, 2005, and he was sentenced to twenty-two years imprisonment.
Roark filed a direct appeal to the Supreme Court of Kentucky, which upheld his conviction and sentence on August 24, 2006. On November 27, 2006, Roark filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to Kentucky Rule of Criminal Procedure 11.42. On March 25, 2010, the Menifee Circuit Court denied his Rule 11.42 Motion. The Kentucky Court of Appeals affirmed on September 9, 2011, and the Kentucky Supreme Court denied discretionary review on
Roark then filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 [DE #1]. In support of his petition, Roark alleges three claims of ineffective assistance of counsel based upon (1) the failure to file a motion for change of venue; (2) the failure to move for jury instructions regarding voluntary intoxication; (3) the failure to investigate adequately his alleged intoxication. He also argues that he is entitled to habeas relief based upon the cumulative effect of all three ineffective assistance of counsel claims. The respondent has filed his response to the petition for writ of habeas corpus [DE #6], to which Roark has filed a reply [DE #9]. Additionally, Roark has filed a motion to amend his complaint [DE #14], to which the respondent objects [DE #15].
II. THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
In his Report and Recommendation, the Magistrate Judge first declined to address issues that were raised for the first time in Roark's reply to the respondent's answer to the habeas petition. The Magistrate Judge noted that "[a] traverse or reply to an answer to a petition for writ of habeas corpus is not the proper pleading for a habeas petitioner to raise additional grounds for relief." See Vivoda v. Davis, 2010 WL 431726, at *6 (E.D. Mich. Feb. 2. 2010).
Next, the Magistrate Judge turned to Roark's ineffective assistance of counsel claims. The Magistrate Judge thoroughly examined each claim under the standards set out in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner must make two showings in order to demonstrate ineffective assistance of counsel. "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense." Id at 687
With respect to his claim that his trial counsel failed to move for change of venue, the Magistrate Judge concluded that even if Roark's counsel was deficient for not moving for a change of venue, Roark failed to demonstrate that any juror was actually biased or tainted. As a result, Roark suffered no prejudice from his counsel's failure to move for a change of venue.
The Magistrate Judge then turned to Roark's claim that his counsel was ineffective for failing to move for jury instructions on voluntary intoxication and wanton endangerment. The Magistrate Judge noted that this claim was adjudicated on the merits in state court. As a result, Roark is only entitled to federal habeas relief if the decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or... resulted in a decision that was based on an unreasonable determination of the facts...." 28 U.S.C. § 2254(d)(1)-(2). Based on the Sixth Circuit's holding that there is no Supreme Court precedent finding a constitutional right to an intoxication instruction in Hill v. Mitchell, 400 F.3d 308, 322 (6th Cir. 2005), the Magistrate Judge found that the Kentucky Court of Appeals' decision cannot be deemed contrary to applicable Supreme Court precedent. Moreover, the Magistrate Judge determined that there is no right to such an instruction under Kentucky law. Finally, to the extent that Roark argues that he is entitled to jury instructions on the lesser-included offenses of wanton endangerment in the first and second degree, the Magistrate Judge held that an alleged violation of Kentucky state law is not cognizable in a federal habeas proceeding, see e.g. Bowling v. Parker, 138 F.Supp.2d 821, 906 (E.D. Ky. 2001); aff'd, 344 F.3d 487 (6th Cir. 2003); David v. Lavinge, 190 F.Supp.2d 974, 986 (E.D. Mich. 2002). Accordingly, the Magistrate Judge determined that Roark is not entitled to relief on this claim.
Roark's third claim for ineffective assistance is based on his contention that his counsel failed to investigate evidence of his intoxication the night of the alleged robbery. The Magistrate Judge first determined that Roark has not shown that he was so intoxicated that he was unable to know what he was doing at the time of the robbery, thus, there is no showing of a substantial likelihood that any deficient investigation by counsel would have resulted in a different outcome to his trial. While Roark's counsel did present some evidence that he was intoxicated at the time, the Magistrate Judge noted that presentation of an intoxication defense would have been inconsistent with the defense chosen by his counsel. Because counsel made a strategic decision not to present the intoxication defense, the Magistrate Judge determined that Roark's argument that counsel should have done further investigation to buttress an intoxication defense must fail.
Finally, Roark contends that the cumulative effect of his counsel's alleged errors are sufficient to obtain habeas relief. The Magistrate Judge, however, cited the Sixth Circuit's holding that a habeas petitioner cannot premise relief on a claim of cumulative trial errors, Williams v. Anderson, 460 F.3d 789 (6th Cir. 2006), in holding that Roark is not entitled to relief on this claim. For all ...