United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
JOSEPH M. HOOD, District Judge.
This matter is before the Court on the Report and Recommendation of Magistrate Judge J. Gregory Wehrman [DE 37]. Said action was referred to the magistrate for the purpose of reviewing the merit of Smith's Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 [Record No. 1, as amended by 12, 13], in which he challenges his conviction in a Kentucky state court. Respondent filed a Response to the Petition [DE 16] and a Motion for Summary Judgment [DE 17]. Petitioner then filed a "Traverse and Reply to Respondent's Rule 5 Answer to Habeas Corpus Petition" [DE 24]. Respondent filed an Answer to the Amended Complaint [DE 30], and Petitioner filed a renewed Motion for Summary Judgment [DE 31] and a Reply to Respondent's Answer [DE 32]. In his Report and Recommendation [DE 37], the Magistrate Judge concludes that none of the grounds for relief submitted by Smith merit relief under 28 U.S.C. § 2254 and recommends that the Petition [DE 1] be denied, that Respondent's renewed Motion for Summary Judgment [DE 31] be granted, and that Respondent's original Motion for Summary Judgment [DE 17] be denied as moot. Petitioner has filed objections [DE 41] to only some portions of the Magistrate Judge's Report and Recommendation, as set forth below.
Having considered the parties' pleadings, the Report and Recommendation, and Petitioner's objections to the Report and Recommendation, using the standards set forth below, the Court will accept the conclusion set forth in the Report and Recommendation over Petitioner's objections.
The Kentucky Supreme Court has described the case of Smith v. Commonwealth, as follows:
Smith, an over-the-road truck driver, his wife and two children from her previous marriage, lived together. The family experienced a string of multiple financial troubles. Smith's defense was that the charges leveled against him by the two children were, at their core, fabrications developed by his wife as revenge for his refusal to sell the family homestead and solve the financial problems. One child testified to acts of sexual contact including being forced to perform oral sodomy on Smith sometime in 1999 or 2000. That child's 12th birthday was in the spring of 2000. Both Smith's wife and the child testified to several acts of abuse. Another child testified to additional sexual act....
The jury convicted Smith of sodomy in the first degree, two counts of sexual abuse in the first degree, sexual abuse in the second degree, sexual abuse in the third degree and two counts of incest. He was sentenced to serve life in the penitentiary.
Smith v. Commonwealth, No. 2009-CA-002281-MR, 2006 WL 734008, at *1 (Ky. Mar. 23, 2006).
Since that time, Petitioner has sought relief from the judgment by direct appeal and by collateral attack using a motion pursuant Kentucky Rule of Criminal Procedure of 11.42. With respect to his RCr 11.42 Motion, he was appointed counsel and an evidentiary hearing was convened, although his appointed counsel decided, after having "conducted [an] investigation into [petitioner's] allegations of ineffective assistance of counsel, " that she would "not be supplementing [petitioner's] claims with a written supplement...." [DE 23-5 at 1.]
In his Motion for Relief under CR 11.42 [DE 23-3 at 30-36], Petitioner argued to the Laurel Circuit Court that he was denied effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution, citing Strickland v. Washington, 466 U.S. 668 (1984). Smith contended that the investigations undertaken by trial counsel were insufficient and that, thus, trial counsel was ineffective when he failed to interview or present testimony from Lynn Lawson or Petitioner's son, Joseph Smith, and that Smith had also been prejudiced by trial counsel's failure to seek admission of his trucker's Daily Log which would have demonstrated that victims could not have been referring to the dates in question in their testimony accurately.
In its decision [DE 23-5 at 17-20, Commonwealth of Ky. v. William Dillard Smith, Indictment No. 03-cr-34, Order (Nov. 12, 2009)], the Laurel Circuit Court concluded that there was no basis for an ineffective assistance of counsel claim with respect to trial counsel's decision not to call Lawson because (1) Petitioner had offered no reason why she should have been called at trial and (2) she offered no factual evidence concerning the allegations in the indictment or alibi evidence. Her testimony before the trial court on the CR 11.42 motion was that she had heard "rumors" about Petitioner's actions, which the trial court discounted as hearsay that would have been inadmissible at trial. Further, the Circuit Court observed that trial counsel testified at the 11.42 hearing that those counts of the indictment for which Lawson's testimony might have been beneficial for his client were dismissed on the morning of trial. The Laurel Circuit Court found it meaningful that, to the extent that Lawson might have served as a character witness, counsel had moved to exclude character evidence and indicated that he had no intention of using her as a character witness.
The Laurel Circuit Court also concluded that it was not error for trial counsel not to call Petitioner's son to testify in light of trial counsel's testimony. The court concluded that trial counsel's decision not to call Petitioner's son was sound trial strategy because, whether it might have placed Petitioner's son in danger of criminal charges himself, counsel was simply not sure that the son was telling the truth about his interactions with the victims. The Laurel Circuit Court next concluded that there was no ineffective assistance of counsel for failing to introduce the travel logs, even though those logs showed that Petitioner worked on specific dates related to the allegation that Petitioner had attempted to induce two witnesses to change his testimony, it did not prove that he was unable to visit those witnesses on the dates in question and did not provide an alibi nor could the logs have provided an alibi for the offenses charged because at least one count of the indictment charged offenses occurring in the spring and there existed logs concerning that period of time.
Trial counsel also testified that he declined to call social worker Marsha Hodge or A. N.C. , one of the victims, because each could offer testimony that would have been highly damaging to Petitioner and that he had, in fact, filed a motion in limine to exclude that evidence from Hodge. The Court concluded that this was sound trial strategy and not ineffective assistance of counsel. Finally, with respect to the decision not to cross-examine one of the victims, the Laurel Circuit Court concluded that there was no error of constitutional proportions with respect to assistance of counsel because Petitioner had not articulated how cross-examination of that victim witness would have benefitted Petitioner and there was evidence from trial counsel that a decision not to cross-examine the witness was made as the result of a reasoned decision, following and as a result of research conducted during a lunchbreak following her direct examination due to "an issue that arose" during the victim's direct examination by the prosecution.
The Laurel Circuit Court ultimately concluded that Petitioner had failed to show how any actions or inactions of counsel constituted defective performance of counsel and failed to show that he was prejudiced by the actions, as required for relief under Strickland on his RCr 11.42 Motion.
On appeal of that decision to the Court of Appeals of Kentucky, Petitioner limited his argument to trial counsel's decision not to cross-examine one of the victims or to call Petitioner's son as a witness. The state appeals court concluded that, since Smith failed to allege with any specificity how he would have benefitted from the crossexamination of his victim or how he was prejudiced by a decision not to cross-examine her, there was no basis for his claim of ineffective assistance of counsel. Smith v. Commonwealth, 2011 WL 2496223, *2 (Ky. Ct. App. June 24, 2011). The state appeals court also concluded that there was no merit to Smith's argument that a decision not to cross-examine a witness constitutes ineffective assistance of counsel absent some explanation by that counsel and that, ultimately, he had failed to overcome Strickland 's strong presumption that counsel's conduct falls within the wide range of professional assistance" or "be considered sound trial strategy." Id. The Kentucky Supreme Court denied petitioner's motion for discretionary review in May 2012. See docket sheet for Case No. 2009-CA-002281, available at http://apps.courts.ky.gov/Appeals/COA_Dockets.shtm (last reviewed on September 29, 2014).
Petitioner sought relief by asking the trial court to vacate his sentence pursuant to Kentucky Rule of Civil Procedure 60.02 on the grounds that there was error at trial because, after the trial began, a juror told the trial court that she could not serve as a juror due to a previously undisclosed friendship with the Commonwealth Attorney and because the portion of the trial video concerning that matter was not available due to a recording equipment failure. The juror in question was dismissed by the trial court and was not among the jurors who found defendant guilty. ...