United States District Court, E.D. Kentucky, Southern Division, London
REPORT AND RECOMMENDATION
CANDACE J. SMITH, Magistrate Judge.
Petitioner Brad Denney, an inmate currently incarcerated at Kentucky State Reformatory, LaGrange, Kentucky, has filed a pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 ( See R. 1). Respondent filed an Answer (R.12), to which Petitioner filed a Reply. (R. 19). Having all relevant documents before the Court, the matter is now ripe for consideration and preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b). For the reasons set forth below, it will be recommended that Petitioner's § 2254 Petition be denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
On September 24, 2001, the McCreary County, Kentucky grand jury indicted Petitioner Brad Denney on the capital offense of murder ("Count 1") and the offense of first degree robbery ("Count 2") for the alleged July 28, 2001, robbery and murder of Bill Bishop. (R. 12-4, at 86). On November 28, 2001, the Commonwealth filed notice of its intent to seek the death penalty against Petitioner, citing the aggravating circumstance that Petitioner committed murder while he was engaged in the commission of robbery in the first degree. (Id. at 88). Petitioner pled not guilty to these charges.
Jury selection for Petitioner's trial began on February 25, 2003. (R. 12-4, at 96). On February 26, 2003, Petitioner filed a motion to withdraw his plea of not guilty, and pursuant to a plea agreement with the Commonwealth, enter a plea of guilty to Count 1 in exchange for dismissal of Count 2 and a recommended life sentence. (Id. at 90-93). After the prospective jurors were dismissed, Petitioner was placed under oath by the trial court. (Id. at 96). Petitioner affirmed that he was not under the influence of any drugs or alcohol. (Id. ). Petitioner acknowledged that he had been afforded sufficient time to consult with his attorney, and verified that he had not been threatened, forced, or coerced to change his plea, and that he had not been promised anything other than what was in the plea agreement. (Id. ). The court then proceeded to ask Petitioner if he understood that by pleading guilty, he would waive certain rights including his right to a trial by jury, his right to an appeal, his right to confront and cross-examine witnesses, and his right to present evidence and witnesses on his behalf. (Id. at 99). Petitioner stated he understood. (Id. ). Petitioner then formally entered his plea of guilty to Count 1 of the indictment. (Id. at 99). On April 23, 2003, the trial court entered judgment, finding Petitioner guilty of murder and sentencing him to a term of life imprisonment. (Id. at 101). Petitioner did not file a direct appeal.
On February 12, 2004, Petitioner sought post-conviction relief by filing a motion for collateral relief pursuant to Kentucky Rule of Criminal Procedure ("RCr") 11.42. (R. 12-5, at 104-45). The state trial court denied Petitioner's motion without an evidentiary hearing. (Id. at 146-47). Petitioner appealed, and on April 29, 2005, the Kentucky Court of Appeals affirmed the trial court's decision on all but one claim: whether counsel was ineffective for failing to convey a supposed plea offer. Denney v. Commonwealth, 2005 WL 991195, at *1 (Ky. Ct. App. Apr. 29, 2005). The court reversed and remanded for the trial court to hold an evidentiary hearing on this claim. Id. On remand, after conducting an evidentiary hearing, the trial court again denied Petitioner's 11.42 motion. (R. 12-8, at 250-51). On appeal, the Kentucky Court of Appeals affirmed. Denney v. Commonwealth, 2008 WL 2941140, at *2 (Ky. Ct. App. Aug. 1, 2008). The Kentucky Supreme Court denied discretionary review on May 13, 2009, at which time the Court of Appeals' decision became final. (Id. ).
Meanwhile, on April 14, 2009, Petitioner filed a Kentucky Rule of Civil Procedure ("CR") 60.02 Motion, which the trial court orally denied on May 12, 2009, without a written order. See Denny v. Commonwealth, 2012 WL 2604599, at *1 (Ky. Ct. App. July 6, 2012). Petitioner filed a second CR 60.02 motion on October 25, 2010, which the trial court denied by written order on June 23, 2011. (Id. ). On appeal, the Kentucky Court of Appeals affirmed,  and the Kentucky Supreme Court denied discretionary review on April 17, 2013. (Id. ).
Denney filed the present Petition seeking relief from his state court convictions under § 2254. (R. 1). Denney raises four grounds for relief:
GROUND ONE: There is no evidence of guilt because Petitioner did not commit the crime.
Supporting Facts: Alleged co-defendant made deal with Commonwealth to give perjured testimony against Petitioner. Counsel informed Petitioner he would get the death penalty on co-defendant's testimony. Victim's neices [sic] were alibi witnesses for Petitioner but counsel never interviewed them. See alibi affidavits by victim's nieces.
GROUND TWO: Alibi witnesses, being victim's neices [sic] were never interviewed.
Supporting Facts: Petitioner had 3 alibi witnesses available for trial, RCr 11.42 motion and CR 60.02 motions. Trial counsel nor appellate counsel interviewed or subpoenaed these credible alibi witnesses who were/are neices [sic] of the victim. No Court will address their affidavits of Petitioner's innocence.
GROUND THREE: Extreme Emotional Disturbance was available instead of coerced guilty plea.
Supporting facts: Where there is conflicting evidence as to the sanity at the time of the alleged murder, the question of his sanity at the time of murder must be submitted to the jury. Upon RCr 11.42 being reversed and remanded, post conviction counsel failed to argue or supplement pro se motion by legal aid on behalf of Petitioner.
GROUND FOUR: Prosecutor made plea offer that was never communicated by trial counsel to Petitioner.
Supporting facts: RCr 11.42 was denied without a hearing. On appeal, the Kentucky Court of Appeals reversed and remanded back to circuit court for evidentiary hearing. Post-conviction counsel did NOT argue or supplement any arguments presented pro se by prisoner legal aid on behalf of Petitioner. CR 60.02 was only motion to try to correct RCr 11.42. No other avenues available known to Petitioner.
For the reasons set forth below, it will be recommended that Denney's § 2254 Petition be denied.
Review of a petition for habeas corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. The AEDPA sets forth the substantive standards for granting habeas relief by providing:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). "This is a difficult to meet, ' Harrington v. Richter, 562 U.S. 86, 102 (2011), and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.'" Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398 (2011) ( quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). Petitioner carries the burden of proof. Id.
"[T]he contrary to' and unreasonable application' clauses [have] independent meaning." Williams v. Taylor, 529 U.S. 362, 405 (2000); see also Bell v. Cone, 535 U.S. 685, 694 (2002). "A state court's decision is contrary to'... clearly established law if it applies a rule that contradicts the governing law set forth in [Supreme Court] cases' or if it confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) ( quoting Williams, 529 U.S. at 405-06).
"[T]he unreasonable application' prong of § 2254(d)(1) permits a federal habeas court to grant the writ if the state court identifies the correct governing legal principal from [the Supreme] Court's decision but unreasonably applies that principal to the facts' of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) ( quoting Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. However, "[i]n order for a federal court to find a state court's application of [Supreme Court] precedent unreasonable, ' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been objectively unreasonable.'" Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. Under the AEDPA, the question for this Court to answer "is not whether a federal court believes the state court's determination was incorrect but whether the determination was unreasonable-a substantially higher threshold." Schriro v. Langrigan, 550 U.S. 465, 473 (2007).
An examination of each of the four grounds asserted by Petitioner in his Petition reveals that he is not entitled to relief under the AEDPA.
A. Petitioner's procedurally defaulted claims.
Before this Court can consider an issue raised in a § 2254 petition, a state prisoner filing a petition must first exhaust all available state remedies. See 28 U.S.C. § 2254(b)(1); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). To be deemed properly exhausted, each claim must have been fairly presented to the state courts. See 28 U.S.C. § 2254(b), (c); O'Sullivan, 526 U.S. at 845 ("state prisoners must give the state courts full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process"); Wagner v. Smith, 581 F.3d 410, 414-15 (6th Cir. 2009); Hafley, 902 F.2d at 483. "Fair representation requires that the state courts be given the opportunity to see both the factual and legal basis for each claim." Wagner, 581 F.3d at 414-15. "Such a requirement affords state courts an opportunity to consider and correct any violation of federal law, thus expressing respect for our dual judicial system while also furnishing a complete record of a petitioner's federal claim as litigated in the state system, including the state court of last resort." Hafley, 902 F.2d at 482.
The exhaustion requirement only bars federal habeas review if state remedies are still available at the time the petitioner files his habeas petition. See Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006) ( citing Engle v. Isaac, 456 U.S. 107, 215 n.28 (1982)). Where no state remedies are available, exhaustion does not pose a barrier to federal review. See Gray v. Netherland, 512 U.S. 152, 161-62 (1996) ( citing Castille v. Peppers, 489 U.S. 346, 351 (1989)). However, these claims may be procedurally defaulted.
A petitioner can procedurally default a claim-and thus be precluded from habeas relief-in one of two ways. First, "[w]here state court remedies are no longer available to a petitioner because he or she failed to use them within the required time period, procedural default and not exhaustion bars federal court review." Williams, 460 F.3d at 806. Second, a petitioner procedurally defaults a claim if he fails "to comply with state procedural rules in presenting his claim to the appropriate state court." Id. If a petitioner has procedurally defaulted a claim in this manner, a federal court can only grant habeas relief if the petitioner demonstrates "cause for the default and actual prejudice as a result of the alleged violation of federal law, " or if he can "demonstrate that failure to consider ...