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Taylor v. Simpson

United States District Court, E.D. Kentucky, Central Division, Lexington

September 30, 2014

VICTOR DEWAYNE TAYLOR, Petitioner,
v.
THOMAS SIMPSON, Warden, Respondent.

MEMORANDUM OPINION AND ORDER

DANNY C. REEVES, District Judge.

In 1986, Victor Dewayne Taylor was convicted in Fayette Circuit Court of two counts of murder, two counts of kidnaping, two counts of robbery, and one count of sodomy. Ultimately, he received two death sentences. Taylor filed a petition for habeas corpus relief in this Court, claiming that he is entitled to a new trial because his conviction resulted from numerous violations of his constitutional rights. [Record No. 1] Finding no merit in his arguments, the petition will be denied.

I.

The following summary of facts is derived largely from the Supreme Court of Kentucky's opinion in Taylor's direct appeal, Taylor v. Commonwealth, 821 S.W.2d 72 (Ky. 1990) ( Taylor I ). In 1984, Taylor and co-defendant George Wade were charged in the Jefferson Circuit Court with the murder, kidnapping, robbery, and sodomy of two Trinity High School students, Richard Stephenson and Scott Nelson. They encountered the students on the evening of September 29, 1984, after the students became lost on the way to a football game. The prosecution presented a statement by Wade that he and Taylor kidnapped and robbed the two students. The boys had stopped at a fast food restaurant to ask for directions when they were approached by Taylor and Wade. Other witnesses testified that Taylor had a gun and forced the victims into their car. The four then left in the victims' vehicle. In his statement, Wade said that he and Taylor robbed the boys and that he had removed both boys' trousers, bound their ankles, and gagged them in a Louisville alley. Wade indicated that Taylor killed the boys because he was afraid they would identify them. Wade stated that he waited on a nearby street while Taylor shot both boys in the head. Id. at 73-74.

Taylor and Wade were tried in Fayette County following a change of venue.[1] Wade was called as a prosecution witness at Taylor's trial. However, Wade, citing his Fifth Amendment right against self-incrimination, refused to testify because his conviction was pending on a direct appeal at the time. Due to the pending appeal, the trial court found that Wade was unavailable and admitted Wade's custodial statement made to the police that implicated Taylor. Id. at 74. On April 30, 1986, the jury convicted Taylor of two counts of murder, kidnaping, and first-degree robbery, and one count of first-degree sodomy. On May 23, 1986, consistent with the jury's recommendation, Taylor received a death sentence on each of the kidnaping and murder charges regarding each victim. Accordingly, he originally received a total of four death sentences.

The Kentucky Supreme Court affirmed Taylor's conviction on direct appeal but remanded for resentencing.[2] Id. at 77. Thereafter, Taylor moved the trial court, pursuant to RCr 11.42, to set aside the remaining judgments against him. The Bullitt Circuit Court, Thomas L. Waller, Special Judge, denied that motion and the Kentucky Supreme Court affirmed. Taylor v. Commonwealth, 63 S.W.3d 151 (Ky. 2001) ( Taylor II ). Taylor then moved for a new trial under CR 60.02 and RCr 10.02. That motion was also denied and affirmed on appeal. Taylor v. Commonwealth, 175 S.W.3d 68 (Ky. 2005) ( Taylor III ).

On June 2, 2006, Taylor filed the present action pursuant to 28 U.S.C. § 2254. [Record No. 1] As grounds for this petition, Taylor raises fifty-four claims which he contends entitle him to habeas relief. In the interests of judicial economy, these are not separately itemized, but are considered below in the same order as presented in the petition.

II.

Before a federal court may grant relief based upon a claim presented in a federal habeas petition, the petitioner must have presented the claim to the state courts and exhausted all remedies available in the state system. 28 U.S.C. § 2254(b)(1)(A). To "fairly present" a claim to the state courts, the petitioner must have presented the state courts with both the legal and the factual bases supporting the claim. Hanna v. Ishee, 694 F.3d 596, 609 (6th Cir. 2012) (citing Williams v. Taylor, 529 U.S. 420, 437 (2000)). Fair presentation of a federal constitutional claim requires that the petitioner make the federal basis of the claim explicit to the state court, either by citing federal law or decisions of federal courts. Duncan v. Henry, 513 U.S. 364, 365-66 (1995) ("If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution."); Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999). If a petitioner cites exclusively to state statutes and state court decisions, he may fail to adequately indicate that he is asserting a violation of his federal civil rights. Baldwin v. Reese, 541 U.S. 27, 33 (2004) (holding that a petitioner's failure to identify a federal claim or to cite case law which might alert the state court to the federal nature of a claim is not fair presentation); Gray v. Netherland, 518 U.S. 152, 163 (1996) ("[I]t is not enough to make a general appeal to a constitutional guarantee as broad as due process to present the substance' of such a claim to a state court.") If the petitioner has not exhausted a claim, the federal court may nonetheless deny relief if the claim is without merit. 28 U.S.C. § 2254(b)(2).

Exhaustion is an affirmative defense and may be waived if the respondent fails to assert it. Smith v. Moore, 415 F.Appx. 624, 628 (6th Cir. 2011) ("A respondent failing to raise his procedural default challenge waives it. The state may waive a defense, ' including procedural default, by not asserting it.'") (quoting Baze v. Parker, 371 F.3d 310, 320 (6th Cir. 2004)). Additionally, if a petitioner's claim has been exhausted in the state courts, he bears the burden of demonstrating any right to federal habeas relief. Garner v. Mitchell, 557 F.3d 257, 261 (6th Cir. 2009) (citing Caver v. Straub, 349 F.3d 340, 351 (6th Cir. 2003)).

When a petitioner presents a claim to state courts but those courts do not address the merits of the claim in any manner, the federal habeas court evaluates the merits of the claim de novo. Van v. Jones, 475 F.3d 292, 293 (6th Cir. 2007); Maples v. Stegall, 340 F.3d 433, 436-37 (6th Cir. 2003) (citing Wiggins v. Smith, 539 U.S. 510, 531 (2003)). De novo review is only appropriate if the petitioner affirmatively shows that the state court's decision "did not involve a determination of the merits of his claim, " such as where the state court denied the claim on procedural grounds. Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784-85 (2011) (emphasis added).

Where the state courts adjudicated the claim presented for federal collateral review, habeas relief is only available if the state court's decision was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[, ]" 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 2254(d)(2). These two provisions collectively require a "highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Bell v. Cone, 543 U.S. 447, 455 (2005) (citations omitted) (internal quotation marks omitted). This deference is required even if the state court provides no explanation for its decision. Harrington, 131 S.Ct. at 784.

To apply the deference required by § 2254(d)(1) to the state court's legal conclusions, "clearly established law" refers to both bright-line rules and legal principles set forth in the decisions of the United States Supreme Court as of the time the state court rendered the pertinent decision. Williams v. Taylor, 529 U.S. 362, 412 (2000) (O'Connor, J., opinion of the Court for Part II); Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir. 2002). Conversely, "clearly established law" does not include dicta in Supreme Court decisions. Williams, 529 U.S. at 412. Nor does it include holdings from the federal courts of appeals. Id. at 381-82.

A state court's decision is "contrary to" Supreme Court precedent if the state court reaches the opposite legal conclusion than the Supreme Court has reached in a prior case or arrives at a different outcome when the case presents a "set of materially indistinguishable facts." Id. at 412-13. A state court's decision constitutes an "unreasonable application" of Supreme Court precedent only if the issue presented is so one-sided that "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents." Harrington, 131 S.Ct. at 786-87 ("[T]he state court's ruling on the claim being presented in federal court [must be] so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement."); Yarborough v. Alvarado, 541 U.S. 652, 664 (2004); Harris v. Haeberlin, 526 F.3d 903, 909 (6th Cir. 2008). Deference is required "whether or not the state court reveals which of the elements in a multipart claim it found insufficient, for § 2254(d) applies when a claim, ' not a component of one, has been adjudicated." Harrington, 131 S.Ct. at 784.

A state court determination premised on a factual determination is "based on an unreasonable determination of the facts" under § 2254(d)(2) only when it is "objectively unreasonable in light of the evidence presented in the state court-proceeding[.]" Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The state court factual findings underpinning such determinations are presumed correct absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir. 2010).

If there were errors in the state court proceeding, the habeas court must determine if the errors were "structural defects" or "trial errors." Structural defects, such as the denial of the right to counsel, defy analysis by "harmless error" standards and require reversal of the state-court conviction. Brecht v. Abrahamson, 507 U.S. 619, 629 (1993). On the other hand, constitutional trial errors must be assessed to determine if the error had a "substantial and injurious effect" in determining the jury's verdict or other case result. Jensen v. Romanowski, 590 F.3d 373, 378 (6th Cir. 2009). If the error had little or no effect, then habeas relief should be denied. However, if the habeas court finds itself in "virtual equipoise" regarding whether the error had a substantial influence on the jury's verdict, it should grant the writ. Id. at 378-79 (citing O'Neal v. McAninch, 513 U.S. 432, 435 (1995)). Finally, the Court notes that federal habeas relief is unavailable for errors in the application of state law unless such errors deny the defendant the due process right to a fundamentally fair trial. Estelle v. McGuire, 502 U.S. 62, 68-70 (1991); Brooks v. Anderson, 292 F.Appx. 431, 437 (6th Cir. 2008).

A. George Wade's Out-of-Court, Custodial Statement Made to the Police

The police picked up Wade for questioning at approximately 3:35 p.m., on October 3, 1984, four days after the murders. He was taken to the Louisville Police Department, advised of his rights, and informed that he was a suspect in the murders of Nelson and Stephenson. Wade denied any involvement in these crimes. Roughly an hour later, Wade executed a written waiver of his rights. Wade was then interviewed by two different police detectives, first by Detective Mason for a couple of hours, and then by Detective Wilson, who began his questioning about 6:30 p.m. Around 8:30 p.m., Wade agreed to take a polygraph examination, which was completed about 11:30 p.m. The polygraph administrator, Detective Duff, informed Detective Wilson that Wade had failed the examination. Detective Wilson resumed his interrogation of Wade at approximately 11:30 p.m. He told Wade that he had failed the polygraph. However, Wade continued to deny any involvement in the murders.

Wade agreed to participate in a line-up, on October 4, 1984, at approximately 12:35 a.m. The line-up assembled by the police consisted of six participants, including Wade. All of the participants put their hair in braids. The line-up began around 2:10 a.m., and was completed at approximately 2:28 a.m. Cecil Pepper, who claimed to have seen the abduction in this case, identified Wade as one of the victims' abductors from the fast food restaurant. After Detective Duff advised Wade that he had been identified as one of the abductors, Wade changed his story about having no involvement in these crimes. Duff then took another statement from him. This tape-recorded statement commenced at approximately 2:40 a.m. Wade completed his statement about 3:30 a.m., approximately twelve hours after he had been picked-up for questioning. Wade's statement was then transcribed, and he signed it. In that statement, Wade implicated Taylor for the first time as a participant in the crimes and as the person who shot Nelson and Stephenson.

The first three claims Taylor raises in this petition (Grounds 1, 2, and 3) concern the pretrial statement of George Wade. Each claim is considered separately.

Ground 1 - The Admission of George Wade's Statement at Trial Does Not Support Habeas Relief.

Taylor contends that the trial court erred in allowing the Commonwealth to introduce the edited, out-of-court, custodial statement of George Wade, his non-testifying co-defendant, in violation of his rights under the Sixth and Fourteenth Amendments to the U.S. Constitution to confront and cross-examine the evidence against him, resulting in the denial of a fair trial and a constitutionally infirm conviction. The Kentucky Supreme Court spoke on this issue on three separate occasions: first, in Taylor's direct appeal, Taylor I; next, in Taylor's appeal of the denial of his RCr 11.42 motion, Taylor II; and finally, in Taylor's appeal of the denial of his CR 60.02 motion, Taylor III.

In Taylor's direct appeal, the Kentucky Supreme Court held that the trial court did not err by admitting Wade's statement pursuant to FRE 804(b)(3), which was adopted by the Kentucky Supreme Court as Kentucky law in Maynard v. Commonwealth, 558 S.W.2d 628 (Ky. 1977), and Crawley v. Commonwealth, 568 S.W.2d 927 (Ky. 1978). See also Dodson v. Commonwealth, 753 S.W.2d 548 (Ky. 1988). In reaching this conclusion, the Taylor I majority engaged in the following analysis:

The trial judge in ruling on motions concerning Wade's unavailability as a witness and whether his statement was against his own interest found that FRE 804(e) provides in pertinent part that a witness is unavailable if he is exempted from testifying concerning the subject matter of his statement by a ruling of the trial judge on the grounds of privilege. The trial judge in the presence of Wade, but outside the presence of the jury, determined that Wade would rely on the Fifth Amendment privilege and that the privilege was valid because his conviction was pending on appeal. Accordingly, the trial judge found that Wade was unavailable as a witness pursuant to FRE 804(a)(1) and Crawley, supra .
The trial judge after hearing argument of counsel and considering the provisions of the Federal Rule of Evidence 804(b)(3) as well as Kentucky authority concluded that the out-of-court statement of Wade at the time of its making was so far contrary to Wade's penal interests and subjected him to criminal liability that a reasonable man in such a position would not have made the statement unless it was true. He further concluded that the admissions against Taylor in Wade's statement were essentially consistent with his sworn in-court testimony as well as the testimony of three other prosecution witnesses, and in the context of other admissions against Taylor, exclusion would appear to deprive the finder of fact of relevant and reliable evidence.
Trustworthiness of a hearsay statement against penal interest is a prerequisite to its admissibility. Crawley, supra , quoting from Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), set out the four factors the Supreme Court deemed relevant to the trustworthiness of such statements: (1) the time of the declaration and the party to whom made; (2) the existence of corroborating evidence in the case; (3) the extent to which the declaration is against the declarant's penal interest and (4) the availability of a declarant as a witness.
Wade's statement was properly admitted into evidence. His statement was made to the police prior to his arrest but after he had been picked up for questioning. He was Mirandized three times, informed that he failed a polygraph test and identified in a lineup prior to his confession. His final waiver of rights was tape-recorded, reduced to writing and signed in the presence of two police officers. The mere fact that Wade had initially denied any involvement in the crimes and confessed only after receiving notice that he had been identified in the lineup does not render the confession involuntary. Cf. Commonwealth v. Vanover, Ky., 689 S.W.2d 11 (1985). There is no suggestion that Wade was attempting to curry favor from the arresting officer. He confessed without promises being made. While he was not under arrest, Wade certainly knew he was a suspect. The statement Wade gave to the police was corroborated in part by five different witnesses. Every material detail of Wade's confession was corroborated by independent testimony and physical evidence.
Wade's statement was against his own interest. His confession was not any less a statement against his own penal interest simply because it also implicated Taylor. Wade admitted that he actively participated in the kidnapping and robbery. He said that he bound, gagged and robbed the victims. He also described the events which culminated in the shootings. The determination of whether an out of court statement is against the declarant's penal interest does not require an assessment of the declarant's subjective motivation. The determination should be made upon an examination of the statement made and application of an objective measure of whether it is against penal interest. By such an assessment, Wade's confession was a statement against his own interest for the purpose of FRE 804(b)(3).
Federal Rule of Evidence 804(a), in relevant part, provides that a declarant is not available for the purposes of the hearsay rule if he:
1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or
2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so....
Wade informed the Court that in spite of the prosecutor's proffered immunity he would invoke his fifth amendment privilege against self-incrimination if called to testify. The trial judge correctly determined that Wade who had a pending criminal appeal at the time was unavailable as a witness under FRE 804(a).
Courts are reluctant to admit hearsay evidence because of the [sic] its inherent unreliability. Numerous exceptions have been carved out of the general prohibition against admitting hearsay. FRE 804(b)(3), statements against penal interest, allows hearsay statements to be admitted if they are against declarant's penal or proprietary interest, trustworthy, and the declarant is unavailable. No lack of trustworthiness could be implied regarding the content of Wade's confession or the circumstances surrounding it. There was no factual basis for the presumptive suspicion that frequently relates to a codefendant's confession. Wade's confession was corroborated in every material detail by independent testimony and physical evidence. Wade was unavailable, his statement was against his own interest, and from the physical evidence, the testimony of witness and Wade's confession, it was reliable and trustworthy. The trial judge was correct in admitting Wade's statement. As a reviewing court, we find no reason to disturb the action taken. Reichle v. Reichle, Ky., 719 S.W.2d 442 (1986).
Taylor argues that the introduction of a nontestifying-codefendant's confession invariably results in a violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). He also contends that Rule 804(b)(3) is unconstitutional. The trial judge correctly ruled that the edited confession was admissible in Taylor's separate trial. The confession was the last item of evidence presented by the prosecution in the case in chief. It was edited to delete all references to other crimes.
Bruton, supra , holds generally that a defendant's Sixth Amendment right to confrontation is violated when he is directly incriminated by the confession of a nontestifying codefendant. The rationale for this general rule of constitutional law is the same as that underlying the general prohibition against hearsay evidence, that is the presumptive unreliability of an extra-judicial confession. Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), a conspiracy case, discussed the relationship between various Federal Rules of Evidence and the Confrontation Clause, and indicates that out of court statements are only presumed unreliable and the presumption may be rebutted by appropriate proof. It also recognizes the cumulative value of certain evidence. When taken together the two principles demonstrate that what may be unreliable in isolation may be probative when corroborated by other evidence. Bourjaily also indicated that the literal interpretation of the confrontation clause was too extreme and that the societal interest of accurate fact finding requires harmonization with the confrontation provision. Accommodation of these competing interests has in general required the prosecution to demonstrate both the unavailability of the witness and the indicia of reliability surrounding the out of court statements.
A number of federal circuit courts have followed the Bourjaily philosophy. See United States v. Robinson, 635 F.2d 363 (5th Cir. 1981); United States v. Katsougrakis, 715 F.2d 769 (2nd Cir. 1983); United States v. Harrell, 788 F.2d 1524 (11th Cir. 1986); United States v. Kelley, 526 F.2d 615 (8th Cir. 1975).
A codefendant's confession is not per se untrustworthy but is only presumptively unreliable and the presumption may be rebutted. Dodson, supra , held that this type of evidence can be admissible if its presumptive unreliability is sufficiently rebutted by corroborating circumstances which clearly indicate its trustworthiness.
In view of the trial judge's holding that the statement came in as a recognized exception to the hearsay rule, we find no conflict with the confrontation clause. See Crawley, supra ; Bourjaily, supra .

Taylor I, 821 S.W.2d at 74-76.

In 2001, in Taylor II, the Kentucky Supreme Court addressed Taylor's request to reconsider the admissibility of Wade's confession based on the United States Supreme Court's decision in Lilly v. Virginia, 527 U.S. 116 (1999). Although the Taylor II Court declined Taylor relief on this issue, it modified the rationale for its holding in Taylor I that the admission of Wade's statement did not violate Taylor's constitutional rights. The Taylor II Court held:

On direct appeal, both the majority and dissenting opinions addressed and discussed Taylor's Confrontation Clause argument. Taylor, 821 S.W.2d at 75-76, 80-82. Thus, the issue of whether Wade's statement was admissible under the Kentucky and U.S. Constitutions was decided against Taylor on direct appeal. Therefore, given Roberts either/or two-prong approach to admissibility, Taylor should be read as holding that Wade's confession was admissible under the second prong of Roberts, rather than as a "firmly rooted" exception to the hearsay rule. Consequently, even if Lilly was binding precedent, Lilly would not a fortiori overrule Taylor.
Therefore, Taylor's argument is reduced to a plea that we reexamine an issue that was raised and decided against him on direct appeal. This is foreclosed by both the above-discussed rule set forth in Thacker, and the law of the case doctrine. Under the law of the case doctrine, "an opinion or decision of an appellate court in the same cause is the law of the case for a subsequent trial or appeal however erroneous the opinion or decision may have been." Union Light, Heat & Power Co. v. Blackwell's Adm'r, Ky., 291 S.W.2d 539, 542 (1956). A rarely-employed exception to the law of the case doctrine exists when it can be shown that the former decision was clearly and palpably erroneous, but no such showing is made in this case. Lilly does not overrule or render Taylor erroneous. Nor is it clearly apparent that Taylor reaches the wrong result under the applicable case law.

63 S.W.3d at 167-68.

Subsequently, in 2005, the Kentucky Supreme Court affirmed the denial of Taylor's CR 60.02 motion for a new trial. Taylor III, 175 S.W.3d at 77. In that decision, the Taylor III Court, sua sponte, revisited the issue of the admissibility of Wade's statement in view of the United States Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004). Crawford held that out-of-court testimonial statements are inadmissible as a violation of the Confrontation Clause "unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Id. at 53-54. The Taylor III Court acknowledged that Wade was unavailable under KRE 804(a)(1) and that Taylor did not have the ability to cross-examine Wade's statement to the police. Therefore, the Taylor III Court concluded that if Crawford were applicable, Taylor's constitutional right to confront witnesses against him was violated. 175 S.W.3d at 71-75.

However, the Taylor III Court further held that Taylor would only be entitled to a new trial if he were prejudiced by the error. In other words, if the admission of the statement amounted to harmless error beyond a reasonable doubt, then his conviction would not be disturbed. Chapman v. California, 386 U.S. 18, 24 (1967). The Taylor III Court then reviewed all of the other evidence presented against Taylor at the guilt phase of his trial, including the testimony of Jeffrey Brown, Eugene Taylor, Beverly Shackelford, the testimony of a hair analysis expert, the testimony of a firearm's expert, the coroner's testimony, evidence found at the crime scene, and other evidence obtained from the homes of Taylor's mother, sister, and girlfriend. In the final analysis, the Taylor III Court concluded that the admission of Wade's statement was harmless error.

From this evidence no reasonable jury could have acquitted Taylor of murdering the two Trinity High School students even if Wade's statement were kept from its consideration. Wade's initial statement incriminating Taylor, though persuasive by itself, was little more than cumulative of other evidence. This is especially true in light of the probability that the prosecution would offer this statement into evidence to rebut Wade's recantation. However, with or without the statement, the proof that Taylor kidnapped, sodomized, and murdered the two boys was overwhelming and no jury could fail to find guilt beyond a reasonable doubt.

175 S.W.3d at 73-74.

At the time of Taylor's direct appeal, the test for the admissibility of a statement made by a non-testifying co-defendant was contained in Ohio v. Roberts, 448 U.S. 56 (1980). Pursuant to Roberts,

The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. See Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). See also Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150 (1900); California v. Green, 399 U.S., at 161-162, 165, 167, n. 16, 90 S.Ct., at 1936-1937, 1938, 1939, n. 16.
The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that "there is no material departure from the reason of the general rule." Snyder v. Massachusetts, 291 U.S., at 107, 54 S.Ct., at 333. The principle recently was formulated in Mancusi v. Stubbs :
"The focus of the Court's concern has been to insure that there are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant, ' Dutton v. Evans, supra, at 89, 91 S.Ct., at 220 and to afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement, ' California v. Green, supra, 399 U.S., at 161, 90 S.Ct., at 1936. It is clear from these statements, and from numerous prior decisions of this Court, that even though the witness be unavailable his prior testimony must bear some of these indicia of reliability.'" 408 U.S., at 213 , 92 S.Ct., at 2313.
The Court has applied this "indicia of reliability" requirement principally by concluding that certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the "substance of the constitutional protection." Mattox v. United States, 156 U.S., at 244, 15 S.Ct., at 340. This reflects the truism that "hearsay rules and the Confrontation Clause are generally designed to protect similar values, " California v. Green, 399 U.S., at 155, 90 S.Ct., at 1933, and "stem from the same roots, " Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213 (1970). It also responds to the need for certainty in the workaday world of conducting criminal trials.
In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

Roberts, 448 U.S. at 65-66 (footnotes omitted).

Thus, Roberts held that the Sixth Amendment requires that hearsay statements, to be admissible, must have "indicia of reliability" - i.e., either fall into a "firmly rooted exception" or have "particularized guarantees of trustworthiness." Id. at 66. Further, in Lee v. Illinois, 476 U.S. 530, 543 (1986), the Court held that inculpatory hearsay statements by accomplices, such as George Wade's, are "presumptively unreliable, " but that the presumption can be overcome by a sufficient showing of indicia of reliability.

On direct appeal, the Kentucky Supreme Court upheld the admission of Wade's statement under the common-law hearsay exception for statements against penal interest pursuant to FRE 804(b)(3), which was adopted by that court in Crawley, 568 S.W.2d 927. Taylor I, 821 S.W.2d at 74. The rationale for this holding was that the statement also inculpated Wade as an accomplice. Therefore, it was a statement against Wade's penal interest. Id. The Kentucky Supreme Court analyzed the trustworthiness of Wade's statement by examining: (i) the time of the declaration and the party to whom made; (ii) the existence of corroborating evidence in the case; (iii) the extent to which the declaration is against the declarant's penal interest; and (iv) the availability of the declarant as a witness. Id. (citing Crawley, 568 S.W.2d at 931); Chambers v. Mississippi, 410 U.S. 284 (1973). In Taylor I, the Kentucky Supreme Court, in analyzing the trustworthiness of Wade's statement, memorialized the assurances of its reliability, as detailed above. 821 S.W.2d at 74-75.

At the time of Taylor's direct appeal, the Kentucky Supreme Court's holding and rationale in Taylor I were legally sound. Subsequent case law has no effect on the correctness of the Taylor I decision, as it was based on Roberts, 448 U.S. 56, controlling precedent from the United States Supreme Court at that time. Thus, Taylor's claim of constitutional error in this instance is without merit. Because Wade's confession had the requisite indicia of reliability and particularized guarantees of trustworthiness, pursuant to Roberts, the Kentucky Supreme Court in Taylor I correctly analyzed this issue. That analysis was consistent with federal law and U.S. Supreme Court precedent at the time it was decided. The Taylor I court committed no error in its analysis.

However, before reviewing the other two decisions by the Supreme Court of Kentucky ( Taylor II and Taylor III ) concerning the admission of George Wade's custodial statement, it is necessary to determine whether subsequent decisions from the United States Supreme Court as to the issue of the admission of an inculpatory statement by a non-testifying co-defendant have any retroactive effect in Taylor's case. In his petition, Taylor cites to Lilly v. Virginia, 527 U.S. 116 (1999) and Crawford v. Washington, 541 U.S. 36 (2004), as applicable to his case. Lilly and Crawford were decided nine years and fourteen years, respectively, after Taylor's direct appeal had concluded. As noted above, in 2001, the Kentucky Supreme Court, in Taylor II, modified the rationale for its holding in Taylor I that the admission of Wade's statement did not violate Taylor's constitutional rights. 63 S.W.2d at 166-68.

In the interim between Taylor II and Taylor III, the United States Supreme Court decided Crawford, holding that out-of-court testimonial statements are inadmissible as a violation of the Confrontation Clause "unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford, 541 U.S. at 54. The Taylor III Court acknowledged that Wade was unavailable under KRE 804(a)(1) and that Taylor did not have the ability to cross-examine Wade's statement to the police. Therefore, the Taylor III Court concluded that if Crawford were applicable, Taylor's constitutional right to confront witnesses against him was violated. However, the Taylor III Court did not end its analysis there. It also concluded that Taylor would only be entitled to a new trial if he were prejudiced by the error. In other words, if the admission of the statement amounted to harmless error beyond a reasonable doubt, then his conviction would not be disturbed. Chapman, 386 U.S. at 24.

Looking at this matter through the "harmless error" lens, the Taylor III Court reviewed all of the other evidence presented against Taylor during the guilt phase of his trial, including the testimony of Brown, Eugene Taylor, Shackelford, the testimony of a hair analysis expert, the testimony of a firearms expert, the coroner's testimony, evidence found at the crime scene, and other evidence obtained from the homes of Taylor's mother, sister, and girlfriend. In the final analysis, the Taylor III Court concluded that the admission of Wade's statement was harmless error:

From this evidence no reasonable jury could have acquitted Taylor of murdering the two Trinity High School students even if Wade's statement were kept from its consideration. Wade's initial statement incriminating Taylor, though persuasive by itself, was little more than cumulative of other evidence. This is especially true in light of the probability that the prosecution would offer this statement into evidence to rebut Wade's recantation. However, with or without the statement, the proof that Taylor kidnapped, sodomized, and murdered the two boys was overwhelming and no jury could fail to find guilt beyond a reasonable doubt.

175 S.W.3d at 73-74.

Consistent with decisions in other federal circuits, the Sixth Circuit has held that Crawford cannot be applied retroactively in habeas cases due to: (i) the limiting language in 28 U.S.C. § 2254(d), and (ii) the non-retroactivity doctrine established in Teague v. Lane, 489 U.S. 288, 305-11 (1989). See Dorchy v. Jones, 398 F.3d 783, 788 (6th Cir. 2005); see also Lave v. Dretke, 444 F.3d 333 (5th Cir. 2005); Brown v. Uphoff, 381 F.3d 1219, 1223-27 (10th Cir. 2004); Owens v. Frank, 394 F.3d 490, 501-503, n.8 (7th Cir. 2005) (holding that Roberts set the standard for evaluating alleged Confrontation Clause violations in a case which became final on direct appeal prior to Crawford ); Mungo v. Duncan, 393 F.3d 327, 332-36 (2nd Cir. 2004); Evans v. Luebbers, 371 F.3d 438 (8th Cir. 2004).

As seen in Teague, to be entitled to an exemption from the non-retroactivity doctrine, a habeas petitioner must demonstrate that the interpretation of federal constitutional law on which he relies is the only reasonable interpretation of federal law at the time his conviction became final on direct appeal and that no other interpretation was reasonable. Lambrix v. Singletary, 520 U.S. 518, 538 (1997). A showing that a later ruling was the most reasonable interpretation of existing precedent will not suffice. Id. Under Teague, even the opinions of lower courts must be considered in determining whether the state court's ruling was a reasonable interpretation of then existing Supreme Court precedent. Caspari v. Bohlen, 510 U.S. 383, 390-96 (1994).

The 1980 decision in Roberts established the standard for evaluating alleged Confrontation Clause violations. In fact, Roberts remained controlling precedent when Taylor's case became final on direct appeal in 1990. Subsequently, the law regarding Confrontation Clause violations began to evolve, as seen by the plurality opinion in Lilly in 1999. By the time Crawford was decided in 2004, the evolution had progressed further. The Crawford Court concluded that, "[w]here testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." 541 U.S. at 68. Thus, as to testimonial evidence, Crawford essentially rendered Roberts and numerous lower courts' opinions obsolete because "the Roberts test is inherently, and therefore permanently, unpredictable." Id., n.10 (emphasis original); Cf. Earnest v. Dorsey, 87 F.3d 1123, 1130-34 (10th Cir. 1996).

However, in 1990, the Kentucky Supreme Court's reasoning in the Taylor I decision was based on the long-standing rule established in Roberts in 1980. It was the only reasonable interpretation of federal law existing at the time and no other interpretation was reasonable. Lambrix, 520 U.S. at 538. It was only in the 1990s, post- Taylor I, that the law concerning the admissibility of this Confrontation Clause evolved to the point of casting a shadow on the viability of Roberts. However, by no means was there a clear consensus on the course that this evolution would take. The plurality opinion in Lilly in 1999 illustrates the lack of compelling clarity on the Confrontation Clause issue at that time (as it relates to Taylor's direct appeal in 1990). See also O'Dell v. Netherland, 521 U.S. 151, 159-60 (1997) (pointing to the Court's lack of consensus when the issue was decided after O'Dell's direct appeal had been decided). It was not until the Crawford decision in 2004 that the law regarding this issue had evolved such that Roberts was rendered obsolete.

Nevertheless, Crawford does not qualify for an exemption from the Teague non-retroactivity doctrine for "watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Tyler v. Cain, 533 U.S. 656, 665 (2001). The second Teague exception is available only if the new rule "alter[s] our understanding of the bedrock procedural elements essential to the fairness of a proceeding." Id. at 666 n.7 (internal quotations and citations omitted). Tyler also points out that a new ruling establishing that an error has occurred and that such error is structural is insufficient by itself to require that the new ruling be applied retroactively on habeas review. Id. at 666-67.

Further, the new rule in Crawford does not establish that trials conducted under the Roberts standard requiring indicia of reliability so seriously diminishes "accuracy as to produce an impermissibly large risk of injustice." Schriro v. Summerlin, 542 U.S. 348, 356 (2004) (internal quotations and citations omitted). "Because we operate from the premise that such procedures [qualifying under this exception to non-retroactivity] would be so central to an accurate determination of innocence or guilt, we believe it unlikely that many such components of basic due process have yet to emerge." Teague, 489 U.S. at 313; see Beard v. Banks, 542 U.S. 406, 415-20 (2004) (noting the Court at that time had yet to find any new rule that qualifies under this exception); Graham v. Collins, 506 U.S. 461, 478 (1993).

However, even assuming arguendo that Crawford qualifies as an exception to the Teague non-retroactivity doctrine and that the admission of Wade's statement was a violation of the Confrontation Clause, the error was harmless error under the applicable standard for habeas review contained in Brecht v. Abrahmson, 507 U.S. 619, 636 (1993), which is whether the error has substantial and injurious effect on the outcome. See Stapleton v. Wolfe, 288 F.3d 863, 867-68 (6th Cir. 2002) (applying Brecht but also citing factors set forth in Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986), which include: (i) the importance of the witness's testimony in the prosecution's case; (ii) whether the testimony was cumulative; (iii) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (iv) the extent of cross-examination otherwise permitted; and (v) the overall strength of the prosecution's case); Gilliam v. Mitchell, 179 F.3d 990, 994-95 (6th Cir. 1999); Hill v. Brigano, 199 F.3d 833, 847 (6th Cir. 1999).

With no consideration being given to Wade's statement, other evidence in the case was overwhelming regarding Taylor's guilt. For instance, Taylor acknowledged the killings to at least three other people - Beverly Shackelford, Eugene Taylor, and Jeffrey Brown. Taylor acknowledged to Brown that he killed the boys because Wade mentioned his name while he was sodomizing one of the victims. An autopsy found sperm in the anus of one of the victims. Eugene Taylor witnessed Taylor admit to the killings, exchange firearms with his sister, and then divide the money stolen from the victims with Wade.

Additionally, two other individuals, Dino Pace and Cecil Pepper, witnessed the gunpoint abduction and identified Taylor and Wade as the abductors. Further, Pace and Pepper exited the parking lot of the fast food restaurant in their vehicle about the same time as Taylor, Wade, and the victims exited the parking lot in the victims' car. Pace and Pepper followed them for a time while Taylor and Wade were riding in the back seat of the victims' car. Pepper had ample opportunity to observe Taylor while he and Taylor were at the counter at the fast-food restaurant, and Pepper observed Taylor holding a gun as he entered the back seat of the victims' car.

Eugene Taylor also saw Taylor and Wade riding in the car with the victims prior to the murders. Live.357 magnum rounds were found in Taylor's home that matched the bullets at the crime scene (a firearms expert indicated that both victims were killed with the same gun). Numerous items of stolen property, easily identified as belonging to the victims, were in Taylor's possession or found in the homes of Taylor's mother and sister. Taylor gave several of the victims' items to others (friends, family, and his girlfriend) or offered the items to others for sale ( e.g., Taylor offered to sell a Trinity High School class ring and a school jacket to Beverly Shackelford). Further, a witness to the abduction stated that Taylor was wearing a beige shirt. A beige shirt was found near the crime scene that contained hairs consistent with Taylor's head and pubic hair.

In summary, there was more than ample evidence of Taylor's guilt without giving any consideration to Wade's statement.[3] The evidence against Taylor sans Wade's statement was overwhelming, as the Taylor III Court observed: "The other evidence against Taylor is mountainous." 175 S.W.3d at 72. Wade's statement was cumulative and provided details that allowed the evidence to tell a more complete story (such as giving reasons for certain actions - e.g., prior to the killings, Wade threw Nelson's car keys on top of a building because if the victims got loose, he did not want the victims to be able to follow them in their car). Nothing contained in Wade's statement provides additional evidence to an element of the crimes that was not already contained in other evidence against Taylor. Thus, Wade's statement was corroborating, but it was not essential to Taylor's conviction. Therefore, if its admission was erroneous, it was harmless error under the Brecht standard.

Given the legal landscape surrounding the Confrontation Clause at the time of Taylor's direct appeal, specifically, the well-established Roberts decision, it is clear that the Kentucky Supreme Court's decision in Taylor I was the only reasonable interpretation of federal law existing at the time and that no other interpretation was reasonable. Consequently, the Taylor I decision on the admission of George Wade's custodial statement was neither contrary to clearly established federal law nor an unreasonable application of United States Supreme Court precedent. Taylor's argument on this issue is without merit.

Ground 2 - Taylor's Trial Attorneys Were Not Ineffective Because Wade's Statement Was Admitted As Evidence at Trial.

Taylor claims that the admission of Wade's statement violated his Sixth Amendment right to the effective assistance of counsel. To be clear, Taylor is not claiming that his counsel was ineffective or that his counsel's performance was deficient but, because his counsel had no opportunity to cross-examine Wade as to this statement, that circumstance operated to deny him effective assistance of counsel. Taylor contends that the resolution of this issue in the state courts in Kentucky was based on an unreasonable determination of the facts in light of the evidence, and that it was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court.

Due to the nature of the claim, Taylor did not raise this argument on direct appeal. However, Taylor raised the issue in his collateral proceeding in the trial court, pursuant to RCr 11.42, but the trial court rejected this claim. Taylor then raised it in appealing the denial of his RCr 11.42 motion. The Kentucky Supreme Court in Taylor II affirmed the denial of Taylor's RCr 11.42 motion, and acknowledged this claim of ineffective assistance of counsel by stating, "[i]n conclusion, we note that any allegation of error not specifically addressed above has been considered and rejected as having no merit." 63 S.W.3d at 168.

The trial court transcript reflects that Taylor's counsel made repeated attempts to exclude Wade's statement from being admitted, objecting that its admission was a Confrontation Clause violation because the statement had not been cross-examined and, with Wade not testifying, could not be cross-examined. Counsel moved to exclude Wade's statement [Trial Record ("TR") 37, 5437] and vigorously objected on the record to its admission. Counsel's motion in limine objecting to the admission of Wade's statement and discussion with the trial court is memorialized in thirty pages of trial transcript. [Transcript of Evidence ("TE") 4/10/86, 2-31] Although the trial court ruled that Wade's statement was admissible, Taylor's counsel succeeded in getting Wade's statement redacted to delete evidence of other crimes. Because Taylor's counsel recognized the issue and strenuously objected on Taylor's behalf, his trial counsel cannot be deemed ineffective. The fact that counsel did not prevail on his motion in limine to prohibit the admission of Wade's statement does not change the fact that Taylor received effective assistance of counsel. Thus, there was no violation of Taylor's Sixth Amendment right to counsel. See Bell, 535 U.S. at 694-98.

Consequently, the Kentucky Supreme Court's decision in Taylor II rejecting this claim as having no merit was not an unreasonable determination of the facts in light of the evidence. Further, it was neither contrary to, nor did it involve an unreasonable application of clearly established federal law as determined by the United States Supreme Court. Taylor's contention otherwise is without merit.

Ground 3 - Admission of Testimony Regarding Wade's Verbal Acts Was Proper and Did Not Violate the Confrontation Clause.

The foundation for this claim is based on the following facts: Lieutenant Moody testified that after Cecil Pepper identified Wade in a lineup, he and Detective Duff took Wade to 716 E. Oak Street and 915 S. Jackson Street, where Wade identified the residences at these addresses as Taylor's residences. [TE 4/9/86, 105-10] Detective Sherrard testified that, on the basis of Wade's information that the residences located at these two addresses were Taylor's, he went to 915 S. Jackson Street to get a description of the residence for a search warrant. [TE 4/8/86, Vol. I, 23-24]

On direct appeal, Taylor claimed that the police officer's testimony was inadmissible hearsay evidence (since Wade did not testify at trial) and argued that no exception to the hearsay rules justified the admission of this testimony. Sanborn v. Commonwealth, 754 S.W.2d 534, 541 (Ky. 1988). Taylor contended that the jury should not have been allowed to learn why the police knew to search these two particular residences. Taylor contends that this hearsay evidence amounted to an impermissible vouching for Wade's veracity and bolstered the taped statement Wade made that painted Taylor as the triggerman which Taylor submits was a critical factor in the prosecution's case.

In Taylor I, the Kentucky Supreme Court affirmed Taylor's conviction, finding no merit to any of his claims, and addressed this particular claim in the following manner:

Taylor, through counsel, raises forty-four assignments of alleged error in this appeal. We have carefully reviewed all of the issues presented by Taylor and this opinion will concentrate on the question of the admissibility of the Wade confession and the propriety of the trial judge's refusal to grant a second change of venue. Allegations of error which we consider to be without merit will not be addressed here.

821 S.W.2d at 74 (emphasis added).

In this habeas petition, Taylor claims that the admission of Lieutenant Moody and Sherrard's testimony violated the Confrontation Clause because Wade's statements to the police while he was in custody were testimonial statements against him by a non-testifying witness. Taylor also contends that the admission of Moody and Sherrard's testimony violated the Due Process Clause because it related to Wade's veracity and his statement implicating Taylor as the triggerman was a critical factor in the prosecution's case. Taylor relies on Snowden v. Singletary, which indicates that "[a] denial of fundamental fairness occurs whenever the improper evidence is material in the sense of a crucial, critical, highly significant factor.'" 135 F.3d 732, 737 (11th Cir. 1998) (quoting Osborne v. Wainwright, 720 F.2d 1237, 1238 (11th Cir. 1983)).

Federal habeas corpus ordinarily does not lie to review questions about the admissibility of evidence. McGuire, 502 U.S. 62. Generally, to rise to the level of a constitutional violation, the state court evidentiary ruling complained of must be so prejudicial that it renders a fair trial impossible. Lisenba v. People of State of California, 314 U.S. 219, 228-29 (1941). The evidentiary ruling must be so egregious as to amount to a denial of fundamental fairness. McGuire, 502 U.S. at 67; see also Lewis v. Jeffers, 497 U.S. 764, 780 (1990). This obviously is a high standard. See, e.g., Baze, 371 F.3d at 318.

Although Taylor characterizes the police officers' testimony as "hearsay, " his complaint centers on the fact that the police officers escorted George Wade to two different residential addresses that he identified as being Taylor's residences. Armed with this information, the police officers then obtained a search warrant for these residences. Taylor misrepresents this testimony as hearsay. Wade's act of pointing out Taylor's residences to the police was nothing more than a "verbal act." Moody did not repeat anything that Wade said. Instead, he described what Wade said. For this reason, the hearsay rule does not apply, and there was no need to consider if it were admissible as an exception thereto. See Preston v. Commonwealth, 406 S.W.2d 398, 401 (1966). To be admissible, evidence of a verbal act need only be relevant to the facts in issue. Id. ("This is not hearsay evidence; it is not admitted for the purpose of proving the truth of what was said, but for the purpose of describing the relevant details of what took place.") In Sanborn, the Court elaborated on the relevancy requirement of verbal act evidence. 754 S.W.2d at 541. The Court noted that a verbal act introduced through the testimony of an investigating police officer is admissible if two requirements are met. First, it must tend to explain why the police officer took certain action, and second, the police officer's taking of that action must involve a fact in issue:

The rule is that a police officer may testify about information furnished to him only where it tends to explain the action that was taken by the police officer as a result of this information and the taking of that action is an issue in the case. Such information is then admissible, not to prove the facts told to the police officer, but only to prove why the police officer then acted as he did. It is admissible only if there is an issue about the police officer's action.

Id.

As stated in Lawson's Kentucky Evidence Law Handbook, § 8.00 (2d ed. 1984), in distinguishing "verbal act" doctrine evidence from hearsay, "[a]n extrajudicial statement has a proper nonhearsay use when its utterance ( not its substance ) is a part of the issues of the case." The fundamental premise underlying the use of such testimony is not the admissibility of "investigative hearsay" but the "verbal act" doctrine because it is admitted "for the purpose of describing the relevant details of what took place." Preston, 406 S.W.2d at 401.

In Taylor's case, this evidence was relevant because it explained why Lt. Moody initiated the search of Taylor's residences. The identification and search of Taylor's residences clearly involved material issues of fact. Thus, the police officer's testimony was admissible under the "verbal act" doctrine. It was not hearsay, and the trial court did not err in admitting it. Because this information was presented only to explain why the officers took action to search Taylor's residences, this testimony was admissible under Kentucky's evidentiary rules. The Kentucky Supreme Court's decision in Taylor I, rejecting this claim as having no merit, was not an unreasonable determination of the facts in light of the evidence. Further, it was neither contrary to nor did it involve an unreasonable application of clearly established federal law as determined by the United States Supreme Court.

B. The Proximity of the Wade and Taylor Trials

Wade's trial immediately preceded that of Taylor.[4] Wade's trial concluded on March 5, 1986. On March 13, 1986, Wade was sentenced and received a life sentence. [TR 50, 7335-38] Taylor's trial began on March 17, 1986. There was significant publicity regarding the decision to sentence Wade to a life term rather than impose the death penalty. As a result of the publicity, on March 10, 1986, Taylor moved for a continuance. Taylor claimed that the public was outraged that Wade did not receive the death penalty, and he argued that a continuance would be a suitable alternative to a second change of venue. However, the trial court denied the motion to continue.

On March 17, 1986, the day jury selection began, Taylor filed a second motion to change venue. He cited the continuing publicity regarding the Wade sentence, including numerous newspaper articles and media coverage. The motion was served on the Commonwealth on March 14, 1986, and filed on March 17. Taylor also filed an addendum to the motion on March 17, requesting a change of venue to Boyle County, Anderson County, or Fulton County. The trial court denied Taylor's second motion for a change of venue because Taylor did not give "reasonable notice" to the Commonwealth. [TR 52, 7596] Before trial began, Taylor moved the trial court to reconsider its denial of the motion, but that motion was also denied. However, while denying the motion, the trial court advised counsel that it was keeping an open mind as to a possible change of venue, indicating that a second change of venue was available if difficulty occurred in seating a fair and impartial jury in Fayette County.

Ground 4 - The Trial Court Did Not Err by Denying Taylor's Request for Change of Venue Due to Pretrial Publicity and Information about Wade's Trial.

On direct appeal, Taylor claimed that he was deprived of a fair trial by the denial of his motion for a second change of venue. Specifically, he argued that pretrial publicity and information about the Wade trial and sentence made it impossible for a fair and impartial jury to be seated in Fayette County. "Supreme Court precedent instructs that, when evaluating whether the pretrial publicity violated the defendant's right to an impartial jury, [the court is] to consider the content, quantity, and timing of the publicity." Hetzel v. Lamas, 372 F.Appx. 280, 282-83 (3rd Cir. 2010) (citing Murphy v. Florida , 421 U.S. 794, 798-803 (1975)). The Supreme Court has further held that "adverse pretrial publicity can create such a presumption of prejudice in a community that the jurors' claims that they can be impartial should not be believed." Patton v. Yount, 467 U.S. 1025, 1031 (1984). However, prejudice from pretrial publicity is rarely presumed. DeLisle v. Rivers, 161 F.3d 370, 382 (6th Cir. 1998).

As noted by the Kentucky Supreme Court in Taylor I, 821 S.W.2d at 76-77, and Taylor II, 63 S.W.3d at 161, the trial court encountered little difficulty in seating a fair and impartial jury. No prejudice to Taylor occurred as a result of pretrial publicity and information about the Wade trial and sentence. See Murphy, 421 U.S. at 798. Both the jury voir dire and actual pretrial publicity were reviewed and ultimately determined to not support Taylor's claim. The level of pretrial publicity was not sufficient to raise a presumption of prejudice. As a result, the Kentucky Supreme Court properly reviewed this claim under prevailing Supreme Court precedent and correctly concluded that no trial error occurred.

Ground 5 - Taylor Was Not Denied Due Process or a Fair Trial by the Denial of His Motion for a Continuance Following Wade's Trial.

Taylor claims that he was denied a fair trial when the court declined to continue his trial until the public attention to the Wade trial and sentence had subsided. His factual argument focuses on pretrial publicity and is very similar to the one used in support of Ground 4 questioning the denial of his the motion for a change of venue. However, Taylor also cites Sheppard v. Maxwell, 384 U.S. 333 (1966), which involves "instances where the media significantly interfere[s] with the trial itself." Hayes v. Ayers, 632 F.3d 500, 508 (9th Cir. 2011). Taylor asserts that he, like Sheppard, was denied due process and was entitled to a trial continuance.

Taylor initially raised this claim on direct appeal. In Taylor I, the Kentucky Supreme Court affirmed Taylor's conviction, finding no merit to any of his claims. As noted infra, the court addressed this particular claim in the following manner:

Taylor, through counsel, raises forty-four assignments of alleged error in this appeal. We have carefully reviewed all of the issues presented by Taylor and this opinion will concentrate on the question of the admissibility of the Wade confession and the propriety of the trial judge's refusal to grant a second change of venue. Allegations of error which we consider to be without merit will not be addressed here.

821 S.W.2d at 74 (emphasis added).

Sheppard was a high-profile murder case in Cleveland, Ohio. In 1954, Sheppard was convicted for the murder of his wife and received a life sentence. The District Court granted Sheppard's § 2254 habeas petition, but the Sixth Circuit reversed on appeal. See Sheppard v. Maxwell, 346 F.2d 707 (6th Cir. 1965). The United States Supreme Court granted certiorari and reversed and remanded, instructing the District Court to issue the writ and order that Sheppard be released unless the state elected to re-try him. Sheppard, 384 U.S. at 335. Publicity surrounded the Sheppard case, both prior to and during the trial. The trial court, in large part, gave the press free reign of the courthouse, as described in the following excerpt:

All of these arrangements with the news media and their massive coverage of the trial continued during the entire nine weeks of the trial. The courtroom remained crowded to capacity with representatives of news media. Their movement in and out of the courtroom often caused so much confusion that, despite the loud-speaker system installed in the courtroom, it was difficult for the witnesses and counsel to be heard. Furthermore, the reporters clustered within the bar of the small courtroom made confidential talk among Sheppard and his counsel almost impossible during the proceedings. They frequently had to leave the courtroom to obtain privacy. And many times when counsel wished to raise a point with the judge out of the hearing of the jury it was necessary to move to the judge's chambers. Even then, news media representatives so packed the judge's anteroom that counsel could hardly return from the chambers to the courtroom. The reporters vied with each other to find out what counsel and the judge had discussed, and often these matters later appeared in newspapers accessible to the jury.
The daily record of the proceedings was made available to the newspapers and the testimony of each witness was printed verbatim in the local editions, along with objections of counsel, and rulings by the judge. Pictures of Sheppard, the judge, counsel, pertinent witnesses, and the jury often accompanied the daily newspaper and television accounts. At times the newspapers published photographs of exhibits introduced at the trial, and the rooms of Sheppard's house were featured along with relevant testimony.
The jurors themselves were constantly exposed to the news media. Every juror, except one, testified at voir dire to reading about the case in the Cleveland papers or to having heard broadcasts about it. Seven of the 12 jurors who rendered the verdict had one or more Cleveland papers delivered in their home; the remaining jurors were not interrogated on the point. Nor were there questions as to radios or television sets in the jurors' homes, but we must assume that most of them owned such conveniences. As the selection of the jury progressed, individual pictures of prospective members appeared daily. During the trial, pictures of the jury appeared over 40 times in the Cleveland papers alone. The court permitted photographers to take pictures of the jury in the box, and individual pictures of the members in the jury room. One newspaper ran pictures of the jurors at the Sheppard home when they went there to view the scene of the murder. Another paper featured the home life of an alternate juror. The day before the verdict was rendered-while the jurors were at lunch and sequestered by two bailiffs-the jury was separated into two groups to pose for photographs which appeared in the newspapers.

Id. at 344-45.

The Sheppard Court was understandably concerned about the atmosphere in which the trial was conducted. For instance, the trial court permitted numerous newspaper reporters to sit at a table inside the bar near counsel and the jury. Id. at 355. Media coverage was out of control due, in part, to the trial court's failure to establish the parameters of media coverage. "[B]edlam reigned at the courthouse during the trial and newsmen took over practically the entire courtroom, hounding most of the participants in the trial, especially Sheppard." Id. The trial court failed to adequately caution the jurors not to read or listen to anything about the case even though they were subject to newspaper, radio, and television coverage when not at trial. Id. at 356-57. The jury's exposure to publicity during the trial was especially problematic because false reporting was rampant, including negative rumors about Sheppard that were never part of the evidence at trial. Id. Further, witnesses were not insulated from this publicity. The trial was conducted in a "carnival atmosphere" that could easily have been avoided by the trial court taking control over the courthouse and courtroom. Id. at 358.

Additionally, the trial was conducted two weeks before hotly contested elections where both the trial judge and the chief prosecutor were running for judgeships. Id. at 354. The Sheppard Court suggested that a continuance of the trial until after the elections would have alleviated any concerns with the timing of the elections. Id. at 354 n.9. Here, there is no allegation that the election cycle had a bearing on Taylor's case.

Taylor's reliance on Sheppard is clearly misplaced. His factual allegations focus on pretrial publicity and fail to reflect a trial atmosphere even close to that described in Sheppard. Further, pretrial publicity did not impede jury selection. As detailed by the Kentucky Supreme Court, the trial court had little difficulty seating a fair and impartial jury in Taylor's case, eliminating any need for a continuance. Taylor I, at 76-77, and Taylor II, at 161. Specifically, the Taylor I court noted:

In regard to the issue of juror bias, a careful examination of the extensive record of jury voir dire indicates that the trial judge took very extended precautions to insure the fairness of the jury panel. The prospective jurors were subject to general and individual voir dire regarding publicity about Wade's sentence and as to their ability to be impartial. All prospective members of the jury received a letter from the Court Administrator advising them not to read or discuss the Wade trial. They all indicated that they had followed the instructions of the court. The record clearly indicates that all twelve jurors demonstrated that they had little if any knowledge of either Wade or Taylor and only one juror had even heard of the so-called Truth in Sentencing legislation. None of the responses indicated any degree of prejudice as a result of pretrial publicity. The selection of the jury was fair and impartial.

821 S.W.2d at 76-77.

The Kentucky Supreme Court's finding regarding the selection of Taylor's jury is entitled to a presumption of correctness. 28 U.S.C. § 2254(e)(1); Patton, 467 at 1031. Taylor has not overcome that presumption by demonstrating that the trial court had difficulty in seating a fair and impartial jury resulting in prejudice to him. See Murphy, 421 U.S. 794. Both voir dire and actual pretrial publicity were reviewed and ultimately determined to not support Taylor's claim. As a result, the Kentucky Supreme Court properly reviewed this claim under the prevailing federal standard and correctly concluded that no trial error occurred.

CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL[5]

Ineffective assistance of counsel is a mixed question of law and fact that is reviewed under the two-part test established in Strickland v. Washington. 466 U.S. 668 (1984). It requires a defendant to show: (i) counsel's performance was deficient by "[falling] below an objective standard of reasonableness, " id. at 687-88; and (ii) that the defendant was "prejudiced" by such deficient performance. Id. at 691-92.

To determine if counsel's performance is deficient, the court must "conduct an objective review of [counsel's] performance, measured for reasonableness under prevailing professional norms, ' which includes a context-dependent consideration of the challenged conduct as seen from counsel's perspective at the time.'" Wiggins, 539 U.S. at 523 (quoting Strickland, 466 U.S. at 688-89); Poindexter v. Mitchell, 454 F.3d 564, 577 (6th Cir. 2006). This review requires consideration of the norms of practice as reflected in the American Bar Association Guidelines. See Rompilla v. Beard, 545 U.S. 374, 387 (2005).

To establish prejudice under Strickland "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. This threshold showing is less than a preponderance of the evidence. Id. The Sixth Circuit has held "that a petitioner need not prove by a preponderance of the evidence that the result would have been different, but merely that there is a reasonable probability that the result would have been different." Skaggs v. Parker, 235 F.3d 261, 271 (6th Cir. 2000).

Ground 6 - Trial Counsel Was Not Ineffective Due to the Late Filing of the Motion for a Second Change of Venue.

As noted above, on March 17, 1986, the day his trial began, Taylor's counsel filed a motion for a second change of venue, citing the continuing publicity regarding the Wade sentence. The motion was served on the Commonwealth on Friday, March 14, 1986. [Supp. TR, Vol. II, 86] In open court, on Monday, March 17, 1986, Taylor filed an addendum to that motion, requesting a change of venue to Boyle County, Anderson County, or Fulton County. [TR 50, 7400-01] The motion was denied because reasonable notice had not been given to the Commonwealth. Before trial began, Taylor moved the trial court to reconsider its ruling denying his motion for a second change of venue, but it was also denied.

In his post-conviction motion filed pursuant to RCr 11.42, Taylor claimed that his counsel was ineffective for the late filing of the motion for a second change of venue. In denying the motion, the trial court declined to address this particular claim on the merits because it had "been raised on appeal, reviewed by the Kentucky Supreme Court, and resolved in favor of the Commonwealth." [Order Denying RCr 11.42 Motion, p. 4 (PCTR 306); Appendix for Appellee, Inventory Item No. 5(u)] Taylor appealed and the Kentucky Supreme Court in Taylor II affirmed that denial, addressing this particular claim as follows:

Taylor raised forty-four (44) issues on direct appeal. We directly addressed only a select few of these issues in that opinion. The rest we cursorily dismissed by stating: "Allegations of error which we consider to be without merit will not be addressed here." Taylor, 821 S.W.2d at 74. Even though some issues were not specifically addressed on direct appeal, they were all considered and resolved against Taylor. See Commonwealth Transportation Cabinet Department of Highways v. Taub, Ky., 766 S.W.2d 49, 51-52 (1988). Taylor tries to circumvent this well-settled rule by glossing errors already raised as claims of ineffective assistance of counsel. These issues include:
Failure to Make a Timely Request for a Change of Venue
Taylor argues that his attorneys were ineffective for failing to make a timely request for a second change of venue. On direct appeal, we noted that the trial court did not abuse its discretion in denying the motion because the defense did not give reasonable notice. Taylor, 821 S.W.2d at 76. But we also noted that the trial court kept the issue open should need arise to revisit the issue and, further, that the trial court had little trouble seating an unbiased jury. Id. at 76-77.

63 S.W.3d at 160-61.

Ignoring the fact that Taylor's claim of ineffective assistance of counsel is an attempt to recharacterize his claim raised on direct appeal that the trial court erred in denying his motion for a second change of venue, Taylor's alleged claim of ineffective assistance of counsel on this issue has no merit. The Kentucky Supreme Court determined on direct appeal that Taylor was not prejudiced by being tried in Fayette County. Taylor I, 821 S.W.2d at 77. In the absence of prejudice, there is no viable claim of ineffective assistance. See Strickland, 466 U.S. 668. Thus, even if filing the motion late is viewed as deficient performance of counsel, his claim of ineffective assistance lacks merit because he has failed to satisfy both prongs of the Strickland test. See id. at 697.

On direct appeal, the Kentucky Supreme Court concluded that "[t]he selection of the jury was fair and impartial. Consequently, there was no need for a second change of venue." Taylor I, 821 S.W.2d at 77; see also Taylor II, 63 S.W.3d at 161. The Kentucky Supreme Court's finding that the selection of Taylor's jury was fair and impartial is entitled to a presumption of correctness. 28 U.S.C. § 2254(e)(1); Patton, 467 U.S. at 1031. Additionally, Taylor's counsel made a strategic choice by filing a motion on March 10, 1986, for a continuance of the trial, rather than moving at that time for a second change of venue. [TR 7344-47] The strategic choices of counsel fall outside of the scope of review. See Strickland, 466 U.S. at 681; Jackson v. Houk, 687 F.3d 723, 744 (6th Cir. 2012). Further, when denying the motion for a second change of venue, the trial court did not completely foreclose further consideration of the issue. The court stated that it would consider moving the trial if problems in seating an impartial jury occurred. Taylor I, 821 S.W.2d at 72. However, because no problems developed in seating a jury, there was no need to revisit the issue. Taylor was not entitled to a second change of venue. See KRS § 452.240.

The Kentucky Supreme Court's decision in Taylor II rejecting this claim of ineffective assistance of counsel as having no merit was not an unreasonable determination of the facts in light of the evidence. Likewise, it was neither contrary to nor did it involve an unreasonable application of clearly established federal law as determined by the United States Supreme Court. This claim of ineffective assistance of counsel fails to demonstrate prejudice under the Strickland test.

Ground 7 - Taylor Was Not Denied His Right to be Tried by a Jury Drawn from a Fair Cross-Section of the Community.

Taylor claims that he was denied the right to be tried by a fair cross-section of the community due to the denial of a continuance or a second change of venue. Taylor raised this claim on direct appeal. In Taylor I, the Kentucky Supreme Court affirmed Taylor's conviction, finding all of his forty-four claims to be without merit. However, the court addressed only two of Taylor's claims at length. Taylor's remaining forty-two claims, including the present claim at issue, were not addressed in depth. Taylor I, 821 S.W.2d at 74.

In addressing Taylor's claim regarding the denial of his motion for a second change of venue, the Taylor I court made the following observation about the jury selection in Taylor's case:

... a careful examination of the extensive record of jury voir dire indicates that the trial judge took very extended precautions to insure the fairness of the jury panel. The prospective jurors were subject to general and individual voir dire regarding publicity about Wade's sentence and as to their ability to be impartial. All prospective members of the jury received a letter from the Court Administrator advising them not to read or discuss the Wade trial. They all indicated that they had followed the instructions of the court. The record clearly indicates that all twelve jurors demonstrated that they had little if any knowledge of either Wade or Taylor and only one juror had even heard of the so-called Truth in Sentencing legislation. None of the responses indicated any degree of prejudice as a result of pretrial publicity. The selection of the jury was fair and impartial.

Id. at 76-77.

Taylor argues that the pool of potential jurors was reduced to such an extent that his petit jury was drawn from a jury pool so small that it no longer represented a fair cross-section of the community. Taylor's jury pool was comprised of 119 persons.[6] From the pool of 119, 38 potential jurors were qualified for Taylor's trial. After 38 veniremen were qualified, the trial court determined that no additional jurors needed to be qualified. The jury pool of 38 was deemed large enough to accommodate the parties' exercise of their peremptory strikes and seat a petit jury with alternate jurors. Taylor contends that since only approximately 32% of the total jury pool was qualified [TR 51, 7503-06], his jury was not drawn from a fair cross-section of the community.

Taylor correctly points out that petit jurors must be drawn from a fair cross-section of the community. Taylor v. Louisiana, 419 U.S. 522 (1975); Smith v. Commonwealth, 734 S.W.2d 437, 442 (Ky. 1987). However, this requirement applies to jury pools, not the petit jury itself. Taylor, 419 U.S. at 537. A jury cannot fulfill its objective if "large, distinctive groups [of the community] are excluded from the pool." Id. at 530. Potential jurors comprising the large jury pool that share an attitude ( e.g., opposition to the death penalty) do not qualify as a distinctive group in the constitutional sense. Buchanan v. Kentucky, 483 U.S. 402, 415-16 (1987); Lockhart v. McCree, 476 U.S. 162, 174 (1986). Similarly, potential jurors excused from jury service due to pretrial publicity, economic hardship, and medical reasons, do not comprise such a distinctive group. See Stanford v. Commonwealth, 734 S.W.2d 781, 784-85 (Ky. 1987), aff'd on other grounds, Stanford v. Kentucky, 492 U.S. 361 (1989).

Taylor does not claim that the jury pool of 119 veniremen did not represent a fair cross-section of the community. Instead, he argues that the trial court should have qualified more than 38 jurors from the pool to seat his petit jury. He asserts that due to pretrial publicity, the jury was drawn from a pool that had been reduced by 68%, a reduction that is too large in the constitutional sense. However, Taylor cites no authority - and the court is not aware of any such authority - establishing a bright-line rule regarding the point when a jury pool is reduced to such a degree that it no longer represents a fair cross-section of the community. "[T]he point at which an accused is entitled to a fair cross-section of the community is when the names are put in the box from which the panels are drawn....' Thus, the court's use of a facially neutral procedure in questioning a panel of potential jurors does no harm to a defendant's due process rights." Stanford, 734 S.W.2d at 785 (quoting Pope v. United States, 372 F.2d 710, 725 (8th Cir.1967), vacated on other grounds, 392 U.S. 651 (1968)). In short, the reduction of Taylor's potential jury pool due to pretrial publicity was a facially neutral reduction and is of no constitutional significance.

The Supreme Court of Kentucky's finding that the jury selection was fair and impartial is entitled to a presumption of correctness. 28 U.S.C. § 2254(e)(1); see Patton, 467 U.S. at 1036 (stating that it is a question of historical fact whether "a juror [swore] that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestation of impartiality have been believed"). Taylor has not overcome this presumption by demonstrating that the trial court had difficulty in seating a fair and impartial jury resulting in prejudice to him. See Murphy, 421 U.S. 794. Because the jury voir dire and actual pretrial publicity was reviewed and ultimately determined to not support Taylor's claim, the Kentucky Supreme Court properly reviewed this claim under the prevailing federal standard and correctly concluded that no trial error occurred.

Ground 8 - Excusing Five Jurors Who Were Adverse to the Death Penalty Did Not Violate Taylor's Right to be Tried by an Impartial Jury.

During jury selection, the trial court excused five jurors for cause: Lewis, Newsome, Brown, Newman, and Chandler. Each was opposed to capital punishment. Taylor claims that by excusing these jurors the trial court deprived him of his right to be tried by an impartial jury. Taylor raised this claim on direct appeal. This claim was not addressed in detail by the Supreme Court of Kentucky. Taylor I, 821 S.W.2d at 74.

The standard to be used by a trial court in determining whether a juror should be excused for cause is summarized in Buchanan v. Kentucky .

A "death-qualified" jury is one from which prospective jurors have been excluded for cause in light of their inability to set aside their views about the death penalty that "would prevent or substantially impair the performance of [their] duties as [jurors] in accordance with [their] instructions and [their] oath.'" Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985), quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980). The prosecutor may remove such potential jurors according to the guidelines set out in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), as refined by the decision in Witt. For the sake of shorthand, see Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), jurors properly excluded are called " Witherspoon -excludables."

483 U.S. at 407 n.6.

It is within the province of the trial judge to disqualify veniremen from jury service for bias based upon determinations of demeanor and credibility. Wainwright v. Witt, 469 U.S. 412, 428 (1985). As the Court noted in Witt, "deference must be paid to the trial judge who sees and hears the juror, " id. at 425-26, as the trial judge's "predominant function in determining juror bias involves credibility findings whose basis cannot be easily discerned from an appellate record." Id. at 429. The trial court's finding on the issue of a potential juror's impartiality "ought not be set aside by a reviewing court, unless the error is manifest.'" Irvin v. Dowd, 366 U.S. 717, 723-24 (1961) (quoting Reynolds v. United States, 98 U.S. 145, 156 (1878)).

Having reviewed the responses of the five jurors to questions posed by the court and counsel, it is clear that each was substantially impaired by their own beliefs, religious or otherwise, concerning the death penalty. None could "temporarily set aside their own beliefs in deference to the rule of law." Lockhart, 476 U.S. at 176.

Consequently, the decision of the Supreme Court of Kentucky on this issue was neither contrary to federal law nor an unreasonable application of United States Supreme Court precedent. The Supreme Court of Kentucky properly reviewed this claim under the prevailing federal standard and correctly concluded that no trial error occurred.

Ground 9 - The Trial Court's Denial of Taylor's Motion to Strike Three Jurors for Cause Did Not Violate Taylor's Right to be Tried by an Impartial Jury.

During jury selection, Taylor moved to strike three veniremen for cause: Fisher, Parsons, and Phillips. He argued that they should be stricken because of their beliefs that a person who commits murder should receive the death penalty. Taylor asserts that the jurors' beliefs were so strongly held that they were unable to consider all of the possible range of penalties that could be imposed. Ultimately, these veniremen were seated. Taylor alleges that the court erred in denying his motion, resulting in the deprivation of his right to be tried by an impartial jury. Taylor raised this claim on direct appeal. However, it was not addressed in detail by the Supreme Court of Kentucky. Taylor I, 821 S.W.2d at 74.

As outlined above, the standard to be used by a trial court in determining whether a juror should be excused for cause is summarized in Buchanan, 483 U.S. at 407, n.6. This Court has reviewed the responses of the three jurors to questions posed by the trial court and counsel. It is clear that, while each stated that they believed the death penalty was appropriate under certain conditions, none was so entrenched in his or her beliefs, religious or otherwise, that they could not "temporarily set aside their own beliefs in deference to the rule of law." McCree, 476 U.S. at 176. Consequently, the decision of the Supreme Court of Kentucky on this issue was neither contrary to federal law nor an unreasonable application of United States Supreme Court precedent. The Kentucky Supreme Court properly reviewed this claim under the prevailing federal standard and correctly concluded that no trial error occurred.

Ground 10 - Juror Leach Honestly and Fully Answered Voir Dire Questions. Her Inclusion on the Jury Did Not Deny Taylor His Right to an Impartial Jury.

Taylor claims that during juror Leach's post-conviction testimony, he learned that she failed to disclose her true religious beliefs regarding capital punishment during voir dire. As a result, Taylor alleges that the juror was substantially impaired by her belief that one convicted of murder should receive the death penalty. Taylor moved for a new trial on that ground pursuant to RCr 10.02 and CR 60.02, asserting that Leach would have been excused for cause had her answers been completely truthful during voir dire. Taylor also claims that, regardless of whether juror Leach would have been excused for cause, he was impaired in the fair exercise of his peremptory challenges because he was forced to exercise them on less than complete and honest information.

The trial court denied Taylor's motion for a new trial on this claim. Taylor appealed and, in Taylor III, the Kentucky Supreme Court concurred with Taylor that the trial court had misapplied RCr 10.04. However, Taylor failed to show that juror Leach had answered dishonestly or that she should have been stricken for cause. The Supreme Court of Kentucky found that juror Leach had given honest answers to the voir dire questions and affirmed the denial of his motion for a new trial.[7] 175 S.W.3d at 74-75. The Court stated:

The second part of Taylor's CR 60.02 motion for a new trial was that a juror answered falsely when questioned during voir dire as to whether she could consider the full range of penalties for one convicted of murder. Specifically, Taylor argues that one particular juror failed to disclose religious beliefs that impaired her ability to consider a penalty other than death. During the post-conviction hearing, the juror in question said that "God's word does say that the death penalty is appropriate for murderers." It is Taylor's contention that because this information about the juror's belief in the death penalty was not shared with the defense when asked if she had any philosophical, religious or moral beliefs concerning the death penalty, his defense team could not use this information to move to strike her for cause or to use his peremptory challenges against her. It follows, he argues, that he is entitled to a new trial.
While Taylor is correct that the lower court misinterpreted RCr 10.04, he fails to show that a new trial is appropriate due to the juror's answers during voir dire. RCr 10.04 states that "[a] juror cannot be examined to establish a ground for a new trial, except to establish that the verdict was made by lot." However, we have not interpreted this rule as the clear-cut exclusionary rule that its text appears to suggest. Indeed, we could not read it in such a way because the rule must give way to various constitutional requirements, such as due process of law. Our predecessor court noted as much in Ne Camp v. Commonwealth when it refused to allow the rigidity of the rule to stifle reversal where "[t]he misconduct [was] obvious." FN11 And later this Court, in an opinion that cited RCr 10.04, noted that a defendant is free to establish that a juror did not truthfully answer on voir dire, but that it could not be established upon evidence of anything that occurred in the jury room. FN12 So Taylor is correct that he may challenge the juror's answers at voir dire with her testimony given during the post-conviction hearing. But he must still meet the burden of proving those answers merit a new trial.
FN11. 311 Ky. 676, 680, 225 S.W.2d 109, 112 (1949).
FN12. Hicks v. Commonwealth, 670 S.W.2d 837, 839 (Ky. 1984).
As this Court has recently stated, to merit a reversal because of the juror's allegedly improper responses (or lack of a response), a defendant "must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause." FN13 When applying this test to the facts, it is clear that Taylor does not merit a new trial.
FN13. Adkins v. Commonwealth, 96 S.W.3d 779, 796 (Ky. 2003) citing McDonough Power Equip. Co. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984).
Essentially there are three elements a defendant must show to deserve a new trial because of juror mendacity during voir dire. First, a material question must have been asked. Second, the juror must have answered the question dishonestly. And finally, the truthful answer to the material question would have subjected the juror to being stricken for cause. Here, there was a material question asked to the juror. A question about whether a potential juror believes she can consider the full range of penalties upon a conviction for murder is about as material as they come. However, Taylor fails to show that the juror answered the question dishonestly or that she should have been stricken for cause. During voir dire the juror was directly asked by the judge about her beliefs about capital punishment:
Judge: Do you have any belief, religious, philosophical or moral, regarding capital punishment, either for or against?
Juror: Do I need to answer that with a yes or no?
Judge: Any way you wish to.
Juror: I feel that there are circumstances where it is a justified reason for capital punishment but I think the evidence would have to weigh this before I made a decision.
Judge: Would it be fair that in your mind you have no fixed position, that you are neither opposed for moral or religious or whatever reasons or for either way?
Juror: No.
Judge: That your mind is open on that issue?
Juror: Yes sir.
And she was also questioned by the defense counsel.
Counsel: I don't want to try and lead you or anything but what I would like for you to do if possible is just tell me how you feel about the death penalty in general. What would be your viewpoint on it?
Juror: I think that there are situations where the death penalty is justifiable and I think there again, it goes back to the situation and the evidence presented that would justify whether or not a person's life should be taken.
Counsel: Do you feel that everybody convicted of murder should get the death penalty?
Juror: Not necessarily.
Counsel: You have heard about aggravating factors, such as robbery or something like that. Do you feel that people who are convicted of murder plus an aggravating factor should automatically get the death penalty?
Juror: No, sir, I don't think so.
Taylor acknowledges these statements by the juror, but argues that she did not say the complete truth, and that if she had she would have been stricken for cause. We disagree. The statement the juror made at the post-conviction hearing that Taylor bases his argument on is that "God's word does say that the death penalty is appropriate for murderers." But this was already stated, albeit in a different way, as a response to both the judge and defense counsel. Taken in context, the juror's responses indicate that she was willing to take the evidence as it was presented and to reach a conclusion consistent with what the facts would allow. There is no reversible error in that. We hold that the juror answered honestly, and that the trial judge was correct in denying Taylor's CR 60.02 motion for a new trial based on her answers during voir dire.

Taylor III, 175 S.W.3d at 74-75.

As demonstrated by her answers, Juror Leach had an open mind on the death penalty issue. She did not believe that all convicted murderers should necessarily or automatically receive the death penalty. It is clear from her answers that, while believing that the death penalty may be appropriate for one convicted of murder, she could consider the full range of penalties as well as the defendant's circumstances and the evidence in making that decision. On appeal, the Kentucky Supreme Court found that Leach "was willing to take the evidence as it was presented and to reach a conclusion consistent with what the facts would allow. There is no reversible error in that. We hold that the juror answered honestly, and that the trial judge was correct in denying Taylor's CR 60.02 motion for a new trial based on her answers during voir dire. " Id. at 75. This finding is entitled to a presumption of correctness. 28 U.S.C. § 2254(e)(1); Ayers, 623 F.3d at 308.

Further, the Kentucky Supreme Court recognized and applied the appropriate federal standard for a new trial. As the Sixth Circuit has noted, "[t]he McDonough test governs cases where it is alleged that a juror intentionally concealed information." Dennis v. Mitchell, 354 F.3d 511, 520-21 (6th Cir. 2003) (citing Zerka v. Green, 49 F.3d 1181, 1185 (6th Cir. 1995)). The McDonough test states that a defendant "must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause." McDonough Power Equip. Co. v. Greenwood, 464 U.S. 548, 556 (1984). The Kentucky Supreme Court reasonably applied McDonough and properly concluded that Taylor failed to carry his burden of proof on this issue. Taylor III, 175 S.W.3d at 74 n.13. It further held that the trial court did not abuse its discretion in denying Taylor's motion for a new trial on this ground. Id. at 75.

The decision of the Kentucky Supreme Court on this issue was neither contrary to federal law nor an unreasonable application of United States Supreme Court precedent. The Kentucky Supreme Court properly reviewed this claim under the prevailing federal standard and correctly concluded that no trial error occurred.

Ground 11 - The Prosecutor's Statement to Jurors During Voir Dire That Their Verdict Could be Based Only on the Facts and Not Sympathy Did Not Deprive Taylor of His Right to Have Jury Consider Any Penalty Other Than Death.

Taylor claims that his Eighth Amendment right to have the jury consider all factors in mitigation of the death penalty was violated when the prosecutor told prospective jurors during voir dire that their verdict could be based only on facts and not sympathy. [TE 3/17/86, Vol. II, 190, 218; TR 52, 7609; TE 4/24/86, Vol. I, 10; TE 4/28/86, Vol. III, 193-194] Jurors Martin and Leach ultimately sat on Taylor's jury and heard the prosecutor's statements. Taylor objected, arguing that sympathy was a non-statutory mitigating circumstance upon which a juror could justifiably decline to impose the death penalty. The trial court instructed the prosecutor to refrain from making such comments in reference to the penalty phase. [TE 3/17/86, Vol. II, 229-30] Taylor raised this claim on direct appeal. However, the Kentucky Supreme Court did not address the claim at length. Taylor I, 821 S.W.2d at 74.

At the outset, it is clear that the prosecutor's statements to the prospective jurors referred to their verdict regarding guilt and not to the mitigation of any penalty. Upon Taylor's objection, the trial judge admonished the jurors and instructed them regarding what to consider when contemplating a sentence.

In California v. Brown, the United States Supreme Court noted that,

An instruction prohibiting juries from basing their sentencing decisions on factors not presented at the trial, and irrelevant to the issues at the trial, does not violate the United States Constitution. It serves the useful purpose of confining the jury's imposition of the death sentence by cautioning it against reliance on extraneous emotional factors, which, we think, would be far more likely to turn the jury against a capital defendant than for him. And to the extent that the instruction helps to limit the jury's consideration to matters introduced in evidence before it, it fosters the Eighth Amendment's "need for reliability in the determination that death is the appropriate punishment in a specific case." Woodson, 428 U.S., at 305, 96 S.Ct., at 2991. Indeed, by limiting the jury's sentencing considerations to record evidence, the State also ensures the availability of meaningful judicial review, another safeguard that improves the reliability of the sentencing process. See Roberts v. Louisiana, 428 U.S. 325, 335, and n. 11, 96 S.Ct. 3001, 3007, and n. 11, 49 L.Ed.2d 974 (1976) (opinion of Stewart, POWELL and STEVENS, JJ.).

479 U.S. 538, 543 (1987).

Because the prosecutor's statement referred to the guilt phase, it is reasonable to conclude that he was referring to the idea that jurors should base their verdict on the evidence, not on sympathy for the victims. It appears that the prosecutor's comments were intended to ensure Taylor a fair trial with a verdict, regardless of whether he was found innocent or guilty, based solely on the facts of the case and the evidence presented during trial.

Further, the prosecutor's comments were made during voir dire at the very beginning of the trial and not during the penalty phase. Even if jurors Martin and Leach recalled the prosecutor's remarks about sympathy, there is no indication that the prosecutor's comments influenced the jury's sentencing decision. Each juror took an oath, affirming that he or she would only decide the case as instructed, and the jury was instructed to base its decision solely on the facts. Thus, no error was committed regarding this issue.

The Eighth Amendment requires that, when imposing sentence, the jury must be able to consider any aspect of the defendant's character or record and any circumstances of the offense that the defense offers as a basis for a sentence less than death as a mitigating factor. Lockett v. Ohio, 438 U.S. 586, 604 (1978). In Taylor's case, the prosecutor's comments did not prevent the jury from considering any relevant mitigating factor that Taylor might have been able to show at trial. Id. at 607-08. The decision of the Kentucky Supreme Court on this issue on direct appeal was neither contrary to federal law nor an unreasonable application of United States Supreme Court precedent.

C. Batson Claims

Grounds 12 and 13 address Taylor's right to equal protection under the United States Constitution and Batson v. Kentucky, 476 U.S. 79 (1986).

Ground 12 - The Prosecutor's Decision to Strike Some African-American Jurors Did Not Violate Batson or Taylor's Equal Protection and Due Process Rights.

The prosecutor in Taylor's case excluded four African-American jurors who had been qualified. Taylor, an African-American, [8] claims that the Commonwealth unlawfully exercised its peremptory challenges by excluding these jurors solely on the basis of race, in violation of his right to equal protection under the United States Constitution and Batson, 476 U.S. 79. Batson was decided on April 30, 1986, the same day Taylor's jury trial concluded. In 1987, the Supreme Court held that Batson should be applied retroactively to all criminal cases, such as Taylor's, pending on direct appeal or not yet final at the time the decision was rendered. Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Taylor raised this claim at trial and on direct appeal. Again, in Taylor I, the Supreme Court of Kentucky did not address this claim in detail. 821 S.W.2d at 74.

Taylor moved the trial court, pursuant to RCr 11.42, to vacate, set aside, or correct his sentence. In a proposed amendment, Taylor again raised his claim of unlawful discrimination in jury selection and later introduced evidence in support of that claim at an evidentiary hearing. The trial court denied Taylor's RCr 11.42 motion, and that denial was affirmed on appeal. The Kentucky Supreme Court in Taylor II, addressed his claim of unlawful racial discrimination in jury selection as follows:

At the evidentiary hearing, Taylor placed into evidence testimony and material concerning his claim that the office of the Jefferson County Commonwealth's Attorney had a pattern and practice of systematically striking African-Americans from the jury venire. Taylor argued that this conduct violated his right to equal protection under the Fourteenth Amendment as held in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). However,
Swain was overruled by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Further, Batson applied retroactively to Taylor's case because his case was still pending review in this Court when Batson was decided and, consequently, was "not yet final" within the meaning of Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649, 661 (1987). Therefore, Batson, not Swain, applies to Taylor's case. Swain holds that a "State's purposeful or deliberate denial" to African-Americans of the opportunity to serve as jurors solely because of race violates the right to equal protection under the Fourteenth Amendment. Swain, 380 U.S. at 203-04, 85 S.Ct. at 826-27, 13 L.Ed.2d at 763. To show a prima facie case under Swain, a criminal appellant has to show "through direct or indirect evidence, such as testimony or statistical proof, that the prosecutor had a systematic and intentional practice of excluding blacks from petit juries in criminal trials through the exercise of peremptory challenges, and that this practice continued unabated in [the appellant's] trial." Love v. Jones, 923 F.2d 816, 818 (1991). Batson overruled that portion of Swain that sets forth the necessary evidentiary showing needed to establish a prima facie case of racial discrimination.
The Batson Court held that a defendant "may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial." Batson, 476 U.S. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87. To establish a prima facie case under Batson, a defendant has to show that he is a "member of a cognizable racial group, " that the prosecutor exercised "peremptory challenges to remove from the venire members of the defendant's race, " FN1 and that those "facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race." Id., 106 S.Ct. at 1723 , 90 L.Ed.2d at 87-88 (emphasis added). Upon making out a prima facie case, the burden shifts to the prosecutor to come forward with a race-neutral explanation for the challenged peremptory strikes. Id. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88.
FN1. We note that we are aware that subsequent cases interpreting Batson have altered these two requirements. We are not holding otherwise in this opinion.
The Batson Court noted that lower courts had interpreted Swain as placing a "crippling burden of proof" which had effectively rendered a prosecutor's peremptory challenges immune from constitutional scrutiny. Id. at 92-93, 106 S.Ct. at 1720-21, 90 L.Ed.2d at 84-85. Thus, Batson overruled Swain in order to remove this disability on a defendant's constitutional challenge to a prosecutor's peremptory challenges. Nonetheless, Taylor claims error under Swain and its "crippling burden of proof" rather than Batson because he alleged a Batson violation on direct appeal. The issue was decided against Taylor on direct appeal and, therefore, cannot be raised in his RCr 11.42 motion. See Thacker v. Commonwealth, Ky., 476 S.W.2d 838, 839 (1972), which holds, "It is not the purpose of RCr 11.42 to permit a convicted defendant to retry issues which could and should have been raised in the original proceeding, nor those that were raised in the trial court and upon an appeal considered by this court." The Swain claim is an attempt to get around this long-established rule. Even if we were to hold that Swain and not Batson was controlling, Taylor's claim would still fail for the same reason his Batson claim failed on direct appeal.
The evidence presented by Taylor at the evidentiary hearing focused on the first part of his burden under Swain, i.e., whether the prosecutor's office had a systematic and intentional practice of excluding blacks from juries in criminal trials. But he presented no evidence that this practice "continued unabated" at his trial. In addition to a prosecutor's exclusion of minority members from the venire via peremptory strikes, Batson also requires-to establish a prima facie case-a showing of "other relevant circumstances" that create an inference that the prosecutor struck the jurors on the basis of their race. Commonwealth v. Hardy, Ky., 775 S.W.2d 919, 920 (1989). In the case at bar, there was no showing of other relevant circumstances at the time defense counsel objected to the seating of the jury and no such argument on this point was made on direct appeal. Moreover, the trial court specifically noted that there was no evidence that African-Americans were systematically excluded from the venire. Notice of Death Sentence Review at 9, Commonwealth v. Taylor, 84-CR-1549 (Jefferson Circuit Court entered June 3, 1986). Therefore, since a prima facie case was not made under Batson, it certainly was not made under the much more restrictive holding of Swain.

Taylor II, 63 S.W.3d at 156-57.

Whether Taylor's claim is characterized as a Batson claim, a Swain claim, or a hybrid thereof, it is not procedurally defaulted as Respondent contends. Taylor has exhausted this claim and he may pursue it in the present habeas petition. Taylor raised a Batson -type challenge at trial and on direct appeal, and he attempted to raise a similar claim in his RCr 11.42 proceeding in his proposed "Amendment to RCr 11.42 Motion, " was not addressed by the trial court. Subsequently, Taylor raised this same claim in appealing the denial of his RCr 11.42 motion. Because Taylor has, at every opportunity, presented his Batson -type claim to the state courts in Kentucky, it is exhausted and not procedurally defaulted.

Qualification of jurors in Taylor's trial began on March 17, 1986. After potential jurors from the original Master List of 154 veniremen had been released for various reasons, a pool of 119 veniremen remained to be qualified. Each potential juror was questioned individually by counsel and the court. On April 1, 1986, after 38 jurors had been qualified, the court determined that the pool was sufficient to permit the exercise of peremptory challenges while leaving a jury of 15, which would include 3 alternates. At that time, 10 veniremen who had not been questioned were released by the trial court. Taylor's jury pool consisted of 38 potential jurors, 7 of whom were African-Americans. One of the African-American jurors was excused for cause during the selection process leaving six African-American jurors remaining prior to the exercise of peremptory strikes.

Counsel did not exercise peremptory challenges on April 1, 1986, but returned the next day to do so. Before the trial recessed for the day on April 1, Taylor verbally moved for reconsideration of the court's decision denying his motion for a second change of venue. He pointed out that out of 119 veniremen, the court had only qualified 38. Counsel argued that this low number indicated the community's mood and that the community had been saturated by publicity of the Wade case, resulting in a jury that did not constitute a fair cross-section of the community. [TE 4/1/86, 338-40 - Inventory Item No. 6(j)]

The Commonwealth objected to Taylor's oral motion for reconsideration, contending that the 38 qualified jurors indeed represented a cross-section of the community. As grounds for that statement, the Commonwealth asked the court to allow it to supplement the record with a chart made by the prosecutor. The chart listed the jurors by various categories including occupation, age, and education, and reflected that:

the jurors that we have currently potentially sat are in effect a cross-section of the community. The Commonwealth request[ed] that the 38 people be put in a sealed jury form envelope so that there would be appropriate information for the appellate court to look at if the counsel pursues in its appeal of this issue.

[ Id. at 340-41 - Inventory Item No. 6(j)] The court granted the Commonwealth's request to supplement the record with the chart and denied Taylor's oral motion to reconsider the decision on the second change of venue. [ Id. at 341] Trial was then adjourned until April 2.

The trial court reconvened on April 2, 1986, at 12:14 p.m., solely for the purpose of allowing counsel to exercise their peremptory strikes from the 38 qualified jurors. Counsel concurrently submitted their peremptory challenges. Taylor was given 14 peremptory strikes and exercised all of them. One of the jurors that Taylor struck was African-American. The Commonwealth was allotted 9 peremptory strikes and exercised 8 of them, striking 4 Caucasian jurors and 4 African-American jurors. Thus, on April 2, 1986, counsel knew which jurors had been stricken and which jurors would be seated for trial. After the peremptory strikes had been exercised, Taylor did not object to the Commonwealth's strikes. The hearing for the exercise of peremptory strikes lasted approximately six minutes, beginning at 12:14 p.m. and concluding at 12:20 p.m. The trial then recessed until April 7, 1986. After their parties excused their peremptory strikes, one African-American juror remained on the jury.

Between April 2 and April 7, Thompson, one of the jurors remaining after the exercise of peremptory strikes, asked to be excused. The court took up this jury matter before trial began on April 7. As grounds, Thompson informed the court that she had recently resigned from one job to take another job. She further stated that she was to start the new job later that week and that her prospective employer had informed her that if she could not start this job as scheduled, she would not be hired. As proof, Thompson provided a letter from her prospective employer for the court's consideration. Without objection, the court excused Thompson for economic hardship. Over the objection of Taylor's counsel, the court replaced Thompson with Parsons, Juror No. 442, who had been drawn by lot after the exercise of peremptory challenges but had not yet been excused.

During a bench conference following the excusal of Juror Thompson, Taylor's counsel stated:

MR. JEWELL: Okay. Note our objection to the seating of the panel on the grounds we've just stated plus previous grounds we stated last week, not being able to interview the entire panel, the fact that the qualified group was drawn from a panel in which less than 33 percent - in fact, 32 percent qualified. The majority disqualified due to publicity, and due to the fact we believe this jury is not representative of a cross-section of the community, in that the panel - the jury that we have now contains only one minority member. It is noted that the Commonwealth used, I believe, half of their strikes to exclude two-thirds of minority members left on the panel. We would object to the seating of this jury.

[TE 4/7/86, 9-10]

In response, the prosecuting attorney represented that he had lawfully exercised his peremptory strikes, based on a California decision. The prosecutor acknowledged that it would have been objectionable if the Commonwealth had stricken all African-Americans. [ Id. at 10]

In addressing this matter, the trial court indicated that the California case was not binding and that a case was pending before the United States Supreme Court on the issue. The court did not recall the name but, presumably, was referring to Batson. The trial court then stated, "I believe the issue being addressed at this time as to whether it is permissible to exercise your peremptory strikes whichever way you wish to. I don't know, but the record's clear as to what has been done in this case." [TE 4/7/86, 11]

Taylor raised this Batson -type claim for the first time during the bench conference, while objecting to the court's decision to replace juror Thompson with Parsons immediately before trial began. Taylor's request was based solely on the fact that the prosecutor, in exercising his peremptory challenges, removed four African-American jurors from the jury.

A defendant has the burden to establish purposeful discrimination. Batson, 476 U.S. at 93. This burden may be established from all circumstances and inferences drawn therefrom, including the prosecutor's "pattern" of strikes, questions, and statements. Id. at 96-97. In Taylor's case, the prosecuting attorney, an African-American, struck four out of six African-American jurors. In and of itself, that fact is insufficient to establish a prima facie case under Batson. Mere numbers alone are not enough. See Commonwealth v. Hardy, 775 S.W.2d 919, 920 (Ky. 1989) (holding that Batson requires more than merely stating that the prosecutor struck a certain number of African-Americans from the jury panel). In Wells v. Commonwealth, 892 S.W.2d 299, 302 (Ky. 1995), the prosecutor exercised his peremptory strikes to remove three of four African-American persons from the jury. The Supreme Court of Kentucky held that Wells had failed to make a prima facie showing of discrimination under the circumstances. Id. at 303. Batson notes that it is relevant to examine the prosecutor's questions and statements during voir dire and while exercising peremptory challenges. 476 U.S. at 96-97. In Taylor's case, the prosecutor asked no questions on voir dire suggesting that race was a factor. Instead, he asked the same series of questions to all of the prospective jurors regardless of race. He asked whether they believed the death penalty was a proper function of government. [ See, e.g., Voir Dire Transcripts, pp. 677-86.] He also asked about the prospective jurors' experiences with the criminal justice system, their views regarding television's portrayal of the criminal justice system, their views on television's portrayal of attorneys, the function of objections in the courtroom, the differences in the guilt and penalty phases of a trial, the jury's function in determining who is telling the truth, and each juror's ability to be fair and impartial to both parties. [ Id. ] There is nothing in the prosecutor's questions or remarks to indicate any racial bias.

Given the foregoing, Taylor failed to establish a prima facie Batson violation. In addition to a prosecutor's exclusion of minority members from the venire via peremptory strikes, a Batson violation also requires a showing of "other relevant circumstances" that create an inference that the prosecutor struck the jurors on the basis of their race. Batson, 476 U.S. at 94; Hardy, 775 S.W.2d at 920. Taylor merely established that the prosecutor used peremptory strikes to remove minority members from the venire. He made no showing of "other relevant circumstances" creating an inference that the prosecutor struck the jurors solely on the basis of their race. In the absence of a prima facie case, the burden of persuasion did not shift to the Commonwealth to provide race-neutral reasons for the removal of the four minority members from the venire.

However, assuming arguendo that Taylor did establish a prima facie Batson claim, the record is replete with information establishing race-neutral reasons for the prosecutor's use of peremptory challenges. On April 1, prior to Taylor's assertion of the Batson claim on April 7, the court had permitted the prosecutor to supplement the record by filing under seal: (i) the juror sheets and questionnaires the 38 jurors had submitted; and (ii) a chart he had prepared from those sheets which contained certain demographic information about the jurors that he used in deciding which jurors to strike. The prosecutor's chart listed the following categories of information: age, education (more than high school, high school, less than high school), employment (employed or unemployed), and if employed, job classification (blue collar, administrative, college, professional, and housewife).

The prosecuting attorney preferred jurors who were employed and had higher levels of education. With this standard in mind, the prosecutor struck three jurors who were unemployed: Gooch (African-American), Singleton (Caucasian), and Cowan (African-American). [TE Voir Dire, Vol. IV, 510; See chart and jury questionnaires attached to Sealed Appendix] He also struck three jurors with "blue-collar" jobs: Jefferson (African-American), Love (Caucasian), and Guldi (African-American). Next, he struck the following jurors who had only high school educations: Love (African-American), Guldi (Caucasian), Gooch (African-American), Estepp (Caucasian), and Singleton (Caucasian).

In addition to education and employment criteria, most of the jurors who were stricken had reservations about capital punishment. A prosecutor may exercise a peremptory challenge to remove jurors who express such reservations. Brown v. North Carolina, 479 U.S. 940, 107 S.Ct. 423, 424 (1986) (O'Connor, J., concurring in denial of writ of cert.) ("Permitting prosecutors to take into account the concerns expressed about capital punishment by prospective jurors, or any other factor, in exercising peremptory challenges simply does not implicate the concerns expressed in Witherspoon [v. Illinois, 88 S.Ct. 1770 (1968)].").

With the foregoing race-neutral reasons for the prosecutor's decision to strike four African-Americans already in the record prior to April 7, the prosecutor had no obligation to provide additional reasons for his decisions. The record fails to support Taylor's Batson claim, as the Kentucky Supreme Court correctly determined on direct appeal and reiterated thereafter. Taylor I, 821 S.W.2d at 74; Taylor II, 63 S.W.3d at 156-57. The decision of the Kentucky Supreme Court on this issue on direct appeal and in Taylor's subsequent appeals was neither contrary to federal law nor an unreasonable application of United States Supreme Court precedent. The Kentucky Supreme Court properly reviewed this claim under the prevailing federal standard and correctly concluded that Taylor's Batson claim had no merit.

Ground 13 - Taylor's Counsel was Not Ineffective for Failing to Support His Batson Claim With Evidence Alleging a Pattern and Practice of Racial Discrimination in Prior Jury Selections by the Prosecutor.

As a continuation of Taylor's Batson claim outlined in Ground 12, Taylor also asserts that it was the prosecutor's practice to violate Swain and Batson during jury selection. He further alleges that his counsel was ineffective for failing to support his Batson claim with evidence of the prosecutor's pattern and practice of racial discrimination during jury selection.

Taylor raised this claim in appealing the trial court's denial of his RCr 11.42 motion. The Kentucky Supreme Court recognized that Batson overruled that portion of Swain which required the defendant to show a prima facie case of racial discrimination "through direct or indirect evidence, such as testimony or statistical proof, that the prosecutor had a systematic and intentional practice of excluding blacks from petit juries in criminal trials through the exercise of peremptory challenges, and that this practice continued unabated in [the appellant's] trial." Taylor II, 63 S.W.3d at 156 (quoting Love, 923 F.2d at 818). The Taylor II Court acknowledged that Batson was retroactively applicable to Taylor's case and that Taylor's burden of proof to establish a prima face case under Batson was less onerous than under the Swain standard. Id. As a result, Taylor was not required to show the prosecutor's pattern and practice of racial discrimination in the exercise of peremptory challenges. Instead, Taylor was only required to show that the prosecutor committed a Batson violation at his own trial. The court also recognized that Taylor had raised a Batson claim on direct appeal and that the claim was decided adversely to Taylor. Thus, Taylor was procedurally barred from relitigating the Batson claim even if it was labeled as a Swain claim. The Kentucky Supreme Court explained as follows:

Nonetheless, Taylor claims error under Swain and its "crippling burden of proof" rather than Batson because he alleged a Batson violation on direct appeal. The issue was decided against Taylor on direct appeal and, therefore, cannot be raised in his RCr 11.42 motion. See Thacker v. Commonwealth, Ky., 476 S.W.2d 838, 839 (1972), which holds, "It is not the purpose of RCr 11.42 to permit a convicted defendant to retry issues which could and should have been raised in the original proceeding, nor those that were raised in the trial court and upon an appeal considered by this court." The Swain claim is an attempt to get around this long-established rule. Even if we were to hold that Swain and not Batson was controlling, Taylor's claim would still fail for the same reason his Batson claim failed on direct appeal.

Taylor II, 63 S.W.3d at 157.

For the reasons previously stated in consideration of Taylor's other Batson claim identified as Ground 12, Taylor failed to establish a prima facie Batson violation. On direct appeal, the Kentucky Supreme Court in Taylor I correctly determined that Taylor's Batson claim was without merit. Further, the Kentucky Supreme Court in Taylor II correctly determined that Taylor was procedurally barred from relitigating this same claim in his appeal from the denial of his RCr 11.42 motion. Taylor's alternative claim that his counsel was ineffective for failing to provide the trial court with proof of the prosecutor's longstanding pattern and practice removing African-Americans from a jury is also without merit. Under Batson, his counsel had no obligation to show a prosecutor's pattern and practice of racial discrimination in jury selection. Thus, the decision of the Kentucky Supreme Court in Taylor II on this claim was neither contrary to federal law nor an unreasonable application of United States Supreme Court precedent. The Kentucky Supreme Court properly reviewed this claim under the prevailing federal standard and correctly concluded that this claim had no merit.

Ground 14 - Taylor Did Not Receive Ineffective Assistance of Counsel and Was Not Denied Conflict-Free Counsel Because the Same Public Defender's Office Represented Both Taylor and Eugene Taylor.

Taylor argues that a conflict existed because his trial counsel was employed by the same Public Defender's Office that represented one of the prosecution's witnesses. Taylor was represented by appointed counsel Frank Jewell and Mike Lemke from the Jefferson District Public Defender's Office. Taylor's cousin, Eugene Taylor, was a witness for the prosecution at Wade's trial and at Taylor's trial. At various times, Eugene Taylor was represented by appointed counsel Udell Levy, an attorney also employed by the Jefferson District Public Defender's Office. Udell Levy represented Eugene Taylor on separate criminal charges unrelated to Victor Taylor's criminal charges. Because Eugene Taylor had unrelated criminal charges pending against him at the time of Victor Taylor's trial, Udell Levy was present with Eugene Taylor when he testified at Victor Taylor's trial. Levy was present solely for consultation purposes to ensure that Eugene Taylor's Fifth Amendment right against self-incrimination was not violated. Victor Taylor and Eugene Taylor were not co-defendants. Thus, these attorneys from the Jefferson District Public Defender's Office were not representing co-defendants, nor were they representing individuals involved in the same charges.

Taylor claims that he was denied effective assistance of counsel and denied the right to conflict-free counsel at trial because his counsel and counsel for Eugene Taylor were employed by the same public defender's office. Taylor cites to Cuyler v. Sullivan, 446 U.S. 335 (1980), and Strickland, 466 U.S. 668, in support of this claim. Taylor raised this claim in his appeal from the trial court's denial of his RCr 11.42 motion. In affirming the denial of that motion, the Kentucky Supreme Court, without elaborating as to all issues raised therein, rejected this claim, stating, "[i]n conclusion, we note that any allegation of error not specifically addressed above has been considered and rejected as having no merit." Taylor II, 63 S.W.3d at 168.

Respondent submits that this claim is procedurally defaulted in that it was not preserved for review in his RCr 11.42 appeal. Respondent points out that Taylor did not raise this claim in his original RCr 11.42 motion when it was filed on September 2, 1994. [Inventory Item No. 5(a)] However, Taylor raised this claim more than two years later on February 26, 1997, in his "Amendment to RCr 11.42 Motion." [Inventory Item No. 5(q)] Even so, this amendment was improper, as Taylor filed it without also moving the trial court for leave to do so and did not subsequently seek leave to amend his RCr 11.42 motion. Therefore, Taylor never received permission from the trial court to file the amendment.

Nevertheless, in denying Taylor's RCr 11.42 motion, the post-conviction judge did address this claimed conflict of interest. The Order denying the RCr 11.42 motion states, in relevant part, that

The Court has considered the additional issues raised by the movant with respect to the representation by the Jefferson District Defender of both Movant and his cousin witness, Eugene Taylor, testimony of Jeffrey Ira Brown, and effectiveness of Appellate counsel, and for reasons heretofore stated in this opinion finds them to be entirely without merit.

[Order, p. 10, Inventory Item No. 5(u)] In rejecting this claim, it is unclear whether the judge considered this claim to be procedurally barred or whether he considered it on the merits.

Respondent presents a strong argument that Taylor waived this claim by making no objection at trial that this claim is untimely, and that Taylor procedurally defaulted the claim by not obtaining relief from the trial court to amend his RCr 11.42 motion. Thus, Respondent argues that Taylor was procedurally barred from raising this claim in appealing the denial of his RCr 11.42 motion and, likewise, in his habeas petition. However, the bases for the rejection of this claim by the trial court and the Kentucky Supreme Court in Taylor II are unclear. Thus, out of an abundance of caution, this Court has considered the claim on the merits.

As set forth in Cuyler, a defendant must show more than a potential conflict of interest:

[T]o establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance.
....
... But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.
... We hold that the possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict ...

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