United States District Court, E.D. Kentucky, Lexington
REPORT AND RECOMMENDATION
J. GREGORY WEHRMAN, Magistrate Judge.
Pending is petitioner Jamey Cope's pro se petition for habeas corpus relief pursuant to 28 U.S.C. §2254. Doc. 1. After examining the record and applicable law, the Court recommends that the petition be denied.
A. Factual and Procedural History
In 2008, petitioner was indicted for one count of assault in the first degree, two counts of wanton endangerment in the first degree and for being a persistent felony offender in the second degree. Doc. 11-2, p. 1-3. As related by the Kentucky Supreme Court in its June 2010 opinion affirming on direct appeal, the underlying facts and procedural history are as follows:
Cope, Sloan [Cope's girlfriend], and others, including Sloan's daughter, Christina Massengale, drank at a local bar. After returning home, Cope went upstairs to another apartment to visit his former girlfriend. Sloan became jealous and called Cope to tell him to come home or she would lock him out. Sloan then locked the door and told Massengale to call the police if Cope came home. When Cope arrived home and kicked the locked door, Massengale called 911. Cope then kicked out a window to gain entrance to the apartment. Cope grabbed the phone from Massengale and destroyed it. Massengale fled to fetch her brother. Once outside, Massengale flagged down an officer who had been dispatched in response to her 911 call.
Meanwhile, inside their apartment, Cope called Sloan names and threatened to kill her. Cope cut Sloan's face over her eye with a knife, jabbed the knife at Sloan's head, and punched her in the face. While trying to defend herself against the knife attack, Sloan cut her hands by grabbing the knife blade.
When police entered the apartment, Sloan and Cope were in a bedroom behind a closed door. Officers' repeated efforts to pry open the door were largely unsuccessful; although, at one point, they were able to open the door slightly and saw Cope brandishing a knife in a downward direction toward Sloan. At one point, an officer sprayed pepper spray into the bedroom. At another point, Cope swung the knife in the officers' direction.
Officers eventually splintered the door and entered the bedroom.
According to their trial testimony, Cope was combative and resisted arrest. One of the officers shocked Cope with a stun gun, but Cope recovered and resumed the fight. An officer then delivered several blows to Cope's leg to get "pain compliance" from Cope. Even after the officers finally handcuffed him, Cope remained combative and threatened to kick out the windows of the police cruiser. At the police station, Cope stated that he and Sloan had gotten into an argument and that she had threatened to kill herself.
As a result of the fracas, Sloan suffered a fracture of the orbital floor of her eye socket, which required surgical repair. Sloan also suffered knife wounds to her forehead and hands. One hand required a surgical repair of damaged nerves.
The grand jury indicted Cope on one count of first-degree assault for "intentionally causing serious physical injury" to Sloan by cutting her with a knife; two counts of first-degree wanton endangerment for his actions directed at the police officer; and one count of being a PFO 2. All charges resulted in a jury trial. At the conclusion of the evidence at trial, the trial court instructed the jury on the lesser-included offenses of second-degree assault and fourth-degree assault but refused Cope's request for an EED instruction. The jury found Cope guilty of firstdegree assault and one count of second-degree wanton endangerment but acquitted Cope on the other count of first-degree wanton endangerment. The jury also found Cope guilty of being a PFO 2.
The jury recommended that Cope be sentenced to twenty years' imprisonment on the assault conviction and twelve months' incarceration (and a $500 fine) for the misdemeanor wanton endangerment conviction. The jury recommended enhancement of Cope's assault penalty to thirty years' imprisonment as a result of his PFO 2 conviction. The trial court sentenced Cope in accordance with the jury's recommendation....
Cope v. Commonwealth, 2010 WL 2471865, at *1-2 (Ky. June 17, 2010) (footnote omitted).
The only issue petitioner raised in his direct appeal was an argument that the trial court erred by refusing to give an instruction regarding extreme emotional disturbance (EED).
The Kentucky Supreme Court rejected petitioner's EED claim, holding that:
Cope's alleged bases for an EED instruction..., even viewing the circumstances from his point of view, ... do not provide a reasonable explanation or excuse for him to have become so enraged, inflamed, or disturbed as to be entitled to an EED instruction.
First, voluntary intoxication or substance abuse is an insufficient basis to mandate an EED instruction. Second, anger does not entitle a defendant to an EED instruction. Also, neither Cope's fear of encountering someone with whom he apparently was not on good terms, nor Sloan's locking the apparently intoxicated Cope out of their apartment, nor her insinuation that Cope would be taken to jail for his actions, are so inflaming or disturbing as to, even from Cope's point of view, cause Cope to lose control over his actions. In fact, as will be discussed later, Cope testified that, essentially, he was able to control his actions.
What we are left with is whether Cope was entitled to an EED instruction because of his contention that Sloan threatened suicide and raised a knife in a manner consistent with carrying out that threat. Under the facts of this case, no EED instruction was required.
Perhaps, one could argue, Sloan's alleged threat to commit suicide-a threat she denied making, but we must view the evidence in a light most favorable to Cope for purposes of reviewing his claim that he was entitled to an EED instruction-and the wielding of an instrument readily capable of carrying out that threat could theoretically have been a triggering event for EED purposes. But in the case at hand, Cope has not pointed to any act he undertook that, even from his point of view, could reasonably be seen as being aimed at thwarting Sloan's suicidal threat. Cope did not dispute the Commonwealth's assertions in its brief that Cope claimed self-defense as the reason he assaulted Sloan. In other words, although he claims now that Sloan raised a knife as if to commit suicide, Cope testified that he punched Sloan because he believed she was going to attack him with the knife. Also, Cope testified that he was compliant with the police, which logically denotes a person who is able to control his actions, not a person who is
uncontrollably inflamed. In other words, Cope's testimony failed to show how, even from his point of view, he was so inflamed or enraged by Sloan's alleged suicidal threat as to have created a jury issue about whether he was suffering from EED. As the Commonwealth notes, Cope's "own testimony supports the fact that he was in control of his actions at all times. Therefore, the trial court's refusal to give an EED instruction did not violate his rights...."
Id. at *4 (footnotes omitted).
In August 2010, petitioner filed a motion for state post-conviction relief pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42, raising numerous claims of ineffective assistance of counsel. Doc. 11-3, p. 47-50, 11-4, p. 1-17. "The trial court denied Cope's motion on its face, in part, and set an evidentiary hearing to determine the merits of one remaining claim: that trial counsel was ineffective by failing to meet with [petitioner] without undue delay to begin discussion of the case and defensive strategies." Cope v. Commonwealth, 2013 WL 4400518, at *1 (Ky.App. Aug. 16, 2013).
At the post-conviction hearing,  petitioner's counsel testified that though she did not have notes showing the precise dates she met with petitioner she did recall having met personally with petitioner multiple times and having spoken to him on the phone on several other occasions. In short, counsel testified as to having had "significant" contact with petitioner prior to trial. Tape (doc. 19) at about 12:10:10. Counsel also testified that she had used two investigators to help prepare petitioner's defense and that, at counsel's request, another attorney from the Department of Public Advocacy had visited petitioner in jail.
Petitioner also testified at the hearing. The essence of his testimony was that he did speak with counsel about five times on the phone but met with her in person rarely. When asked on cross-examination what evidence counsel did not present at trial which would have made a difference in the case, petitioner offered only a nonresponsive answer that that the victim had not testified truthfully. Petitioner then declared that during his trial testimony he had "told everything" and had left out nothing. Tape (doc. 19) at about 12:39:15.
After the trial court denied his RCr 11.42 motion petitioner appealed to the Kentucky Court of Appeals, arguing "that the trial court abused its discretion by holding that Cope had received effective assistance of trial counsel and by failing to rule on the cumulative effect of trial counsel's errors." Id. In August 2013, the Kentucky Court of Appeals affirmed, holding as follows:
Cope first argues, as he did before the trial court, that his trial counsel was ineffective by failing to meet with him without undue delay and discuss the case and defense strategies. Cope's trial counsel testified that he [sic] maintained sufficient contact with the defendant, advised the defendant during the pretrial process, and attempted to form potential defense strategies. Cope does not challenge these statements, but rather just makes a general argument of error. Because he offers no support for his argument of trial court ...