United States District Court, E.D. Kentucky, Central Division, Lexington
PETITIONER ORDER ADOPTING REPORT AND RECOMMENDATION RESPONDENT
DAVID L. BUNNING, District Judge.
This matter is before the Court upon the Magistrate Judge's Report and Recommendation (R&R) (Doc. # 14), in which he recommends that the Court deny Petitioner Kevin Raiford's 28 U.S.C. § 2254 petition for writ of habeas corpus. Raiford having filed objections to the R&R (Doc. # 17), and the Warden's time to submit a response having expired, this matter is ripe for review. For the reasons that follow, Petitioner's objections are overruled, and the R&R is adopted as the opinion of the Court.
In 2005, a Fayette County Circuit Court sentenced Raiford to thirty-five (35) years in prison for "first-degree robbery, receiving stolen property over $300, and being a persistent felony offender in the first-degree." Raiford v. Commonwealth, No. 2005-SC-0273-MR, 2006 WL 2455987, at * 1 (Ky. Aug. 24, 2006). The following is a brief recitation of the facts: The morning after stealing a car, Raiford walked into a Marathon gas station on South Broadway in Lexington, Kentucky armed with a hunting knife and demanded money from the station's owner, Andy Aullman. During the course of the robbery, Aullman was able to positively identify Raiford and write down the license plate number of his stolen getaway car. Minutes later, a Lexington police officer pulled over the matching vehicle, Raiford stepped out, and the officer placed him under arrest.
Raiford raises three claims in his § 2254 petition: (1) his Sixth Amendment right to an impartial jury was violated because a juror, Donna Holland, did not disclose in voir dire that she was a customer of the Marathon gas station; (2) his trial counsel was constitutionally ineffective for not requesting a jury instruction on second degree robbery; and (3) his trial counsel was constitutionally ineffective for not permitting him to testify. Where Raiford has made specific objections to the Magistrate's R&R, the Court will review them de novo. 28 U.S.C. § 636(b)(1)(c); Jones v. O'Dea, 83 F.3d 422, *1 (6th Cir. 1996) ("[A] party must file specific objections to the magistrate judge's report.").
A. Applicable law
When a petitioner raises a claim in a § 2254 petition that the state courts adjudicated on the merits, a federal court may grant relief only if "the adjudication resulted in a decision that: (1) was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court; or (2) was based upon an unreasonable determination of the facts in light of the evidence presented to the state courts." Willis v. Smith, 351 F.3d 741, 744 (6th Cir. 2003) (citing 28 U.S.C. § 2254(d)).
To prevail on an ineffective assistance of counsel claim, a petitioner must show that his counsel's performance was deficient and that his counsel's deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). On federal habeas review, establishing ineffective assistance of counsel is "all the more difficult" because "the question is not whether counsel's actions were reasonable... [t]he question is whether there is any reasonable argument that counsel satisfied Strickland 's deferential standard." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 788 (2011).
B. Juror Bias
Raiford submits that his Sixth Amendment right to an impartial jury was violated because one of the jurors, Donna Holland, was a customer at the Marathon gas station and recognized Aullman when he testified. During voir dire, the jury pool was asked whether they were familiar with the Marathon gas station or any of the names on the witness list. Raiford, 2006 WL 2455987, at * 1. Id. At a later evidentiary hearing, Holland testified that she did not speak up during voir dire because, although she recognized Aullman when he took the stand, she did not know him by name or the Marathon station's address. Id. at 2. She further testified that she did not immediately inform the Court that she knew Aullman because, remembering the questions asked during voir dire of jurors who knew a witness, she believed that she could be "fair and impartial." Id.
On direct appeal, the Kentucky Supreme Court denied Raiford's claim for two reasons: (1) Holland was mistaken, not dishonest, in not responding to the questions, and (2) Holland did not do anything to conceal any bias against Raiford. Id. at 3. In the Magistrate's R&R, he recommended that this Court deny Raiford's claim because Raiford had not demonstrated that the Kentucky Supreme Court was unreasonable in its application of federal law. (Doc. # 14 at 8). Based on Holland's testimony, the Court agrees with the Magistrate and the Kentucky Supreme Court that her failure to recognize Aullman's name or the gas station's address were honest mistakes. Raiford, however, argues that even if Holland's mistake was in good faith, it does not necessarily prevent a finding of bias. (Doc. # 17 at 4). Because Raiford is correct under Sixth Circuit law, Zerka v. Green, 49 F.3d 1181, 1186 n.7 (6th Cir. 1995), the Court will address his argument.
Under Sixth Circuit precedent, when a juror conceals information "through an honest, though mistaken, response, " a petitioner "must show actual bias' in order to obtain a new trial." United States v. Solorio, 337 F.3d 580, 595-96 (6th Cir. 2003) (quoting Zerka, 49 F.3d at 1186). Raiford argues that there is actual bias because Holland, as a customer at Aullman's gas station, had written him some bad checks, and out of remorse, she would have wanted to support him as the state's complaining witness. However, this argument ignores Holland's testimony that she was not aware that she had cashed bad checks at Aullman's store until after the trial, when the Commonwealth had served her notice of the check charges. Raiford, 2006 WL 2455987, at *2. It further ignores Holland's testimony that she believed, despite being Aullman's customer, that she could be fair and impartial. Id. As the Kentucky Supreme Court ...