United States District Court, E.D. Kentucky, Central Division, Lexington
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
EDWARD B. ATKINS, Magistrate Judge.
Mario Garr entered pleas of guilty in the Fayette Circuit Court to two counts of first degree trafficking in a controlled substance, and one count of being a first degree persistent felony offender. [R. 1, Appx. at 42]. He was sentenced to five years incarceration on the first count of trafficking, enhanced to ten years by the Persistent Felony Offender, and received a sentence of five years on the second count of trafficking, to run concurrently with the first count. [R. 1, Appx. at 42].
He brings the present action under 28 U.S.C. § 2254 challenging his conviction due to his counsel's ineffective assistance. Specifically, he brings the following claims alleging that his guilty plea was the result of ineffective assistance of counsel: (1) when his counsel failed to properly investigate and present an adequate defense; (2) that counsel failed to advise the petitioner that he would be ineligible for probation for ten years due to his status as a persistent felony offender, and incorrectly informed him that he would be eligible for parole after serving six and one-half years;(3) that counsel was ineffective due to his/her simultaneous representation of a confidential informant, and that counsel conspired to induce him to accept a plea offer and avoid trial in order to avoid presenting a defense of entrapment, and finally (4) he brings a claim that his conviction lacked sufficient evidence.
Having considered the record, and for the reasons set forth below, the Court will recommend that Garr's petition be denied.
The facts of this case, as recounted by the Kentucky Court of Appeals in its opinion considering Garr's appeal from a denial of his motion for post-conviction relief, are not being challenged, and are therefore are presumed to be correct. McAdoo v. Elo , 365 F.3d 487, 493-94 (6th Cir. 2004); Mitchell v. Mason , 324 F.3d 732, 737-38 (6th Cir. 2003). The facts are as follows:
Garr was arrested on March 3, 2010, after selling narcotics to a confidential informant (CI). He was arraigned in district court the next day, and his case was sent to the grand jury, which indicted him on two counts of first-degree trafficking in a controlled substance and one count of being a first-degree persistent felony offender. Garr was represented at these proceedings by an attorney from the Lexington Department of Public Advocacy (DPA). The CI had been represented by the DPA since February 5, 2010. When members of the DPA realized that they might face a potential conflict of interest in representing both Garr and the CI who had helped to incriminate him, a private attorney was retained to represent the CI on March 8, 2010. The CI entered a plea of guilty to unspecified charges on March 25, 2010.
Garr's attorney filed a motion to suppress the evidence against him, which was denied. Garr entered a conditional plea of guilty to the charges on November 15, 2010. He received a sentence of five years on the first count of trafficking, enhanced to ten years by the PFO charge, and a sentence of five years on the second count of trafficking, to be run concurrently with the first count.
About a year later, Garr filed a motion pursuant to RCr 11.42, alleging that his counsel was ineffective (1) due to a conflict of interest arising from the DPA's simultaneous representation of Garr and the CI; (2) for failing to pursue an effective defense strategy; and (3) for failing to inform him that he would not be eligible for parole until he had served a minimum term of ten years.
Garr v. Commonwealth, No. 2013-CA-000508-MR, 2014 Ky.App. Unpub. LEXIS 172, at * 1-2, (Ky. App., February 28, 2014).
STANDARD OF REVIEW
Subject to a one-year statute of limitations, state prisoners may seek federal habeas corpus relief on the ground that they are being held in custody in violation of the Constitution, law or treaties of the United States. 28 U.S.C. § 2244(d)(1); Reed v. Farley , 512 U.S. 339, 347 (1994). "Federal habeas corpus relief does not lie for errors of state law... [and] it is not the province of a federal habeas corpus court to reexamine state-court determinations on state-law questions." Estelle v. McGuire , 502 U.S. 62, 67-8 (1991). Accordingly, the proper inquiry herein is whether the alleged errors violated the Petitioner's federal rights. Id.
Because Garr filed his habeas petition on April 14, 2014, [R. 1] his claims are governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. Pursuant to AEDPA, an application for a writ of habeas corpus on behalf of a person in custody on a state court conviction shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...