United States District Court, E.D. Kentucky, Central Division, Lexington
OPINION AND ORDER
KAREN K. CALDWELL, Chief District Judge.
This matter is before the Court on the objections of the petitioner, Kurt Robert Smith, to a report and recommendation issued by the Magistrate Judge. The Magistrate Judge recommends that this Court deny Smith's petition for a writ of habeas corpus under 28 U.S.C § 2254.
On November 5, 2013, Smith filed objections [DE 30] to the Magistrate Judge's report and recommendation. This Court must make a de novo determination of those portions of the recommendation to which objection is made. 28 U.S.C. § 636(b)(1)(C).
Smith was convicted after a trial in state court of wanton murder for the death of his six-week-old son, Blake. He was sentenced to life imprisonment.
In his petition, Smith asserts four claims of ineffective assistance of counsel. He argues that his trial counsel was ineffective because she 1) failed to consult with a mental health expert and investigate mental health defenses; 2) failed to investigate and present readily available mitigation evidence at sentencing; and 3) failed to object to jury instructions regarding extreme emotional disturbance and intent. For his fourth ineffective assistance of counsel claim, Smith contends that the totality of the ineffective assistance of counsel denied him a fair trial. For his fifth claim on habeas review, Smith argues that his Fifth and Sixth Amendment rights were violated when the Commonwealth Attorney cross-examined him at trial regarding his exercise of his post-arrest, pre-trial right to remain silent.
The Magistrate Judge rejected all five of Smith's claims, Smith objects to the Magistrate Judge's recommendation with regard to only two of his ineffective assistance of counsel claims.
The first claim is that Smith's trial counsel performed her duties deficiently because she failed to obtain a mental health evaluation of Smith or consult with a mental health expert. The second claim is that Smith's trial counsel failed to investigate and present readily available mitigation evidence at sentencing. Smith presented these arguments to the Kentucky Court of Appeals and that court ordered the Fayette Circuit Court to hold an evidentiary hearing on these issues.
After the hearing, the trial court held that Smith's trial counsel "did not abuse her professional discretion in providing substantial representation for the Defendant, " that counsel's decisions regarding a mental health evaluation and the presentation of mitigation witnesses at the sentencing phase were strategic trial decisions rather than instances of deficient performance, and "any error complained of would not have resulted in a different outcome for [Petitioner]." [DE 7-20, at 19-20].
After de novo review, the Kentucky Court of Appeals found no error in the trial court's conclusions that Smith's counsel was not deficient under Strickland v. Washington, 466 U.S. 668 (1984), which requires the petitioner to show that counsel's performance was deficient and that the deficient performance prejudiced the defense.
The Magistrate Judge determined that the Kentucky Court of Appeals accurately described the Strickland standard and appropriately disposed of Smith's ineffective assistance of counsel claims. Smith objects, arguing that 1) the Magistrate Judge's analysis of the deference afforded to the state court was incorrect; 2) the state court's finding that trial counsel's performance was not deficient was unreasonable; and 3) the state court did not review the prejudice prong of Strickland and thus this Court should review it de novo.
The Magistrate Judge was correct in his analysis of the standard of review and deference due to state court decisions on habeas review. As noted by the Magistrate Judge, the Anti-Terrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA) applies to all habeas corpus petitions filed after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320 (1997). Therefore, state court factual and legal determinations require "heightened respect." Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). The "double deference" standard utilized by the Magistrate Judge is in line with the Supreme Court's reasoning in Harrington v. Richter, 131 S.Ct. 770 (2011). "The standards created by Strickland and § 2254(d) are both highly deferential, ' and when the two apply in tandem, review is doubly' so." Id. at 788 (citations omitted).
The Court also agrees with the Magistrate Judge's determination that the Kentucky Court of Appeals accurately described the Strickland standard when rejecting Smith's ineffective assistance of counsel claims. "We have said that counsel should be strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable judgment, ' and that the burden to show that counsel's performance was deficient' ...