United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
DANNY C. REEVES, District Judge.
In 2009, Charles McClendon was convicted by a Kenton Circuit jury of sodomy in the first degree. The same jury found the petitioner guilty of being a first-degree persistent felony offender. After unsuccessfully exhausting his state appeals, McClendon petitioned this Court for collateral relief under 28 U.S.C. § 2254. [Record No. 1] McClendon claims, inter alia, that: (i) he was denied due process of law when the victim's prior consistent statement was read to the jury; (ii) the trial judge committed reversible error by admitting improper character testimony; and (iii) his attorney provided ineffective counsel. [Record No. 1]
Consistent with local practice, the petition was referred to a United States Magistrate Judge for initial review and issuance of a report in accordance with 28 U.S.C. § 636(b)(1)(B). On July 31, 2014, United States Magistrate Judge Hanly A. Ingram recommended that the petition be dismissed and that no Certificate of Appealability be issued. [Record No. 16] Magistrate Judge Ingram concluded that a number of the petitioner's claims were not presented to Kentucky's highest courts and, therefore, were not exhausted. [ Id. ] Additionally, resolution of the remaining claims did not involve an unreasonable application by the state courts of clearly-established federal law. [ Id. ]
On August 8, 2014, McClendon filed objections to the Magistrate's report. [Record No. 17] Specifically, he argues that the report held him to a higher standard than permissible and misapplied Strickland v. Washington, 466 U.S. 668 (1984), and Martinez v. Ryan, 132 S.Ct. 1309 (2012). [Record No. 17, p. 5] The remainder of the petitioner's objections are a regurgitation of the claims in his petition. For the reasons discussed below, this petition will be denied and a Certificate of Appealability will not be issued with respect to any claim.
To comply with 28 U.S.C. § 636(b)(1)(c), this Court reviews de novo those portions of the Magistrate Judge's recommendations to which an objection is made. However, "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings." Thomas v. Arn, 474 U.S. 140, 150 (1985). Having examined the record and having considered the matter de novo, the Court agrees with the Magistrate Judge's recommendations. Further, McClendon's objections are without merit.
A. Prior Consistent Statement
McClendon's first ground for relief fails. At the petitioner's trial, the nurse who performed an examination of the victim read her report to the jury, which included the victim's account of the assault. The petitioner claims that this report improperly bolstered the victim's testimony. [Record No. 1, p. 6] Although the Supreme Court of Kentucky concluded that admission of the nurse's report as erroneous, it concluded that the error was harmless. [Record No. 1-3, p. 6] This Court may not grant McClendon's habeas petition "if the state court simply erred in concluding" that the errors were harmless; rather, "habeas relief is appropriate only if the state court applied harmless-error review in an objectively unreasonable' manner." Miller v. Colson, 694, F.3d 691, 700 (6th Cir. 2012) (quoting Mitchell v. Esparza, 540 U.S. 12, 18 (2003)). McClendon has not shown that the state court's decision was an "objectively unreasonable" application of harmless-error review. This issue is properly addressed in the Magistrate Judge's Recommended Disposition. [Record No. 16, pp. 5-9]
B. Improper Character Testimony
McClendon's claim that improper character testimony was admitted also lacks merit. The petitioner argues that the trial judge committed reversible error when he allowed a witness to testify that she was not surprised that the victim agreed to drive McClendon to the liquor store because the victim would "do anything for anybody." [Record No. 1, p. 8] This claim was addressed by the Supreme Court of Kentucky, which found no error in the admission of the testimony. [Record No. 1-3, pp. 6-7] The state court's analysis was not objectively unreasonable. See Mitchell, 540 U.S. at 18. The Magistrate Judge's Recommended Disposition properly addresses and disposes of this claim. [Record No. 16, pp. 9-10]
C. Ineffective Assistance of Counsel
McClendon also makes the following claims of ineffective assistance of counsel: (i) a restatement of Ground 1, (ii) a restatement of Ground 2; (iii) failure to interview favorable witnesses; (iv) failure to present evidence of the victim's bad character; (v) failure to investigate victim's character evidence; (vi) failure to investigate the police report; and (vii) failure to file a motion to suppress evidence. [Record No. 1, pp. 9-10] However, each is lacking in merit.
Claims (i) and (ii) were not raised in the state court proceedings and, therefore, are unexhausted. A petitioner may not present unexhausted claims in a federal habeas proceeding "unless he can show cause to excuse his failure to present the claims in state courts, and actual prejudice to his defense at trial or on appeal." Woods v. Booker, 450 Fed.Appx. 480, 491 (6th Cir. 2011) (citing Hannah v. Conley, 49 F.3d 1193, 1195-96 (6th Cir. 1995)). Thus, McClendon must show cause and actual prejudice to excuse his failure to raise these claims in state court. He has failed to do so. In fact, the petitioner's only mention of these claims is the statement that "Grounds One & Two are included in this Ground." [Record No. 1, p. 9] This description is insufficient to grant relief, and the claims are procedurally defaulted.
Although McClendon raised claims (v), (vi), and (vii) before the Kentucky Court of Appeals, the state court opinion made no mention of them. [ See Record No. 1-2] As a result, de novo review is appropriate. Burton v. Renico, 391 F.3d 764, 770 (6th Cir. 2004). However, the petitioner has not established actual prejudice resulting from these alleged errors. McClendon has not demonstrated that even if these claims were accepted they would have affected the outcome of the trial. Therefore, the claims fail.
Regarding the remainder of his claims, McClendon correctly states that, to meet his burden regarding allegations of ineffective assistance he "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [Record No. 17, p. 8] (quoting Strickland, 466 U.S. at 689) However, the state court addressed and accurately described the Strickland standard and properly allocated the burden to the petitioner in disposing of his ineffective assistance of counsel claims. [Record No. 1-2, pp. 4-5] The Kentucky courts reasonably concluded that McClendon had not established deficient ...