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Wadlington v. Smith

United States District Court, W.D. Kentucky, Paducah Division

February 27, 2017



          Thomas B. Russell, Senior Judge United States District Court

         This matter is before the Court upon Petitioner Devron Dwayne Wadlington's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. [DN 1.] Magistrate Judge King recommends that Wadlington's petition be denied. [DN 21.] Wadlington has filed objections to portions of the Magistrate Judge's report. [DN 22.] The Court must review de novo those portions of a Magistrate Judge's recommended disposition to which Wadlington objects. 28 U.S.C. § 636(b)(1)(C). After careful consideration of Wadlington's objections and the record, the Court agrees with the Magistrate Judge that Wadlington's petition is without merit. Therefore, for the following reasons, Wadlington's § 2254 petition for a writ of habeas corpus [DN 1] is DENIED. Furthermore, the Court DENIES a certificate of appealability as to all grounds raised in his petition.

         I. Facts and Procedural History

         Petitioner Devron Dwayne Wadlington was convicted by a Trigg County, Kentucky jury of the wanton murder of LaWarren O'Keith Sims outside a nightclub. The following factual summary is taken from the Kentucky Court of Appeals' first opinion in Wadlington's case:

Wadlington and a codefendant, George Kelly Mayes, were indicted and jointly tried for the murder of LaWarren O'Keith Sims. Sims was shot and killed in a crowded altercation outside Henry's Place, a nightclub in Trigg County. The evidence presented at trial revealed that no eyewitness positively identified Sims's shooter, and the bullet that killed Sims was never found. Eyewitnesses testified to seeing Mayes pull a gun from his waistband when confronted by Anthony Wilson, a patron of Henry's Place. Other eyewitnesses testified to seeing Mayes and Wadlington shooting guns into a crowd or into the air. Another witness testified that she saw Wadlington holding a 9mm gun during the altercation.
James Rodell Acree testified that he drove Mayes, Wadlington, and others to Henry's Place. Following the altercation, Acree drove Mayes and Wadlington to Cadiz. He testified that Mayes fired shots from the car window while leaving the scene. Also while in the car, Acree overheard Mayes ask Wadlington, “did you hit him?” Acree helped Mayes clean out his car, in which they found a Budweiser box which contained a bullet. They threw the box and bullet into a field. Billy Alexander testified that he found a handgun near his home after Mayes had stopped by. Alexander threw the gun into a field near his house.
Acree and Alexander eventually led police to the field which contained the Budweiser box, a .45 handgun with a bullet in the chamber, a .45 bullet, and a 9mm handgun that was wrapped in a black t-shirt and mask under the seat of an abandoned vehicle. Police also searched the area around Henry's Place and found .45 shell casings and a 9mm casing nearby. An FBI weapons expert testified that the .45 shell casings recovered came from the .45 gun found by the police, but that the 9mm shell casing did not come from the recovered 9mm gun.
Counsel for Wadlington cross-examined both Acree and Alexander regarding their status as convicted felons, their incomplete statements to police, their expectations of getting favorable treatment in return for their cooperation, and Acree's admission to being high on the night of the shooting. No proof was introduced for Wadlington at the close of the Commonwealth's case. The trial court instructed the jury to decide whether Mayes and Wadlington were guilty, either individually or acting in complicity with the other, of murdering Sims; of wanton murder; or of a lesser degree of homicide. The jury convicted both of wanton murder.

Wadlington v. Com., No. 2011-CA-001260-MR, 2013 WL 1003490, at *1 (Ky. Ct. App. Mar. 15, 2013) (Wadlington II). The Kentucky Supreme Court affirmed Wadlington's conviction on direct appeal. See Wadlington v. Com., No. 2006-SC-000640-MR, 2008 WL 1003490 (Ky. Oct. 23, 2008) (Wadlington I). Specifically, the Commonwealth's highest court held that the trial court did not err by failing to sequester the Commonwealth's witnesses until the second day of testimony, by admitting the 9mm handgun into evidence, or by declining to give Wadlington's desired self-defense jury instruction. See Id. at *2-5.

         Wadlington then brought an action in the Trigg Circuit Court pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42 alleging that his trial counsel was ineffective. In that proceeding, Wadlington claimed that his attorney failed to conduct a reasonable investigation of potential witness, call mitigating witnesses, and object to the admission of the 9mm handgun. Wadlington II, 2013 WL 1003490, at *2. He also claimed that his attorney's cumulative errors deprived him of effective representation. Id. at 3. The Trigg Circuit Court denied Wadlington's RCr 11.42 motion, the Kentucky Court of Appeals affirmed, and the Kentucky Supreme Court denied discretionary review.

         Wadlington's final journey in state court began when he filed a Kentucky Rule of Civil Procedure (CR) 60.02 motion, once again seeking to vacate his sentence. There, Wadlington raised several arguments, some old and some new. He contended for a second time that his trial counsel was ineffective. Wadlington v. Com., No. 2014-CA-001612, at *4 (Ky. Ct. App. May 22, 2015) (Wadlington III). This time, Wadlington also argued that his counsel on direct appeal and during his RCr 11.42 proceedings were both ineffective. Id. at 4-5. Finally, he sought to have the black t-shirt found with the 9mm handgun tested for DNA. Id. at 5. The Kentucky Court of Appeals rejected all of Wadlington's arguments, and the Kentucky Supreme Court again declined to hear his case.

         This action followed.[1] The Court referred Wadlington's § 2254 petition to Magistrate Judge King for findings of fact, conclusions of law, and a recommendation. [DN 8.] The Magistrate Judge issued his findings, recommending that Wadlington's petition be denied as to each of his eight claims. See [DN 21.] Wadlington filed objections, [DN 22], and this matter is ripe for adjudication.

         II. Standard of Review

         “Under the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d), federal habeas relief may not be granted unless the state court decision at issue: (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 ...

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