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Parker v. Kentucky Department of Corrections

United States District Court, W.D. Kentucky, Louisville

March 7, 2017




         This matter is before the Court on Petitioner Jyronna Parker's pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. [DN 1.] Respondent Kentucky Department of Corrections (KDOC)[1] filed a response. [DN 10.] Parker replied. [DN 12.] The Magistrate Judge filed Findings of Fact and Conclusions of Law and Recommendation. [DN 20.] Parker filed objections thereto. [DN 22.] Respondent did not file a response, and this matter is now ripe for adjudication. Having conducted a de novo review of the portions of the Magistrate Judge's report to which Parker objected, the Court ADOPTS IN PART the Findings of Fact and Conclusions of Law as set forth in the report submitted by the Magistrate Judge. The Court additionally ADOPTS the Magistrate Judge's Recommendations that both the petition and a certificate of appealability be denied. For the reasons stated herein, Parker's objections are OVERRULED. The Court will enter a separate Order and Judgment consistent with this Memorandum Opinion.


         Jyronna Parker (“Petitioner” or “Parker”) was convicted of the intentional murder of George Campbell after a trial by jury in Jefferson County, Kentucky state court in 1997. [DN 1-2 at 1-2 (trial court's 1997 judgment of conviction).][2] He was sentenced to sixty-five years imprisonment. [Id. at 2.] The facts leading to the prosecution of Parker, as summarized by Supreme Court of Kentucky in its 1999 decision affirming the conviction, are as follows:

On May 29, 1994, Appellant went to the home of his estranged wife, Shonda Parker, to return their son after having taken him to visit his grandfather. Upon leaving the house, Appellant took Shonda's pager, which he later testified was because he could no longer afford the cost. Later that day, the pager went off, and appellant called the number to inform the individual that the pager was no longer in service. Shortly thereafter, the pager went off again, and Appellant called and repeated his message. The third time the pager went off with the same number and Appellant returned the call, the person who answered threatened to kill him. Thereafter, Appellant drove to his own house, which he shared with a friend, Stephanie Jackson.
Later during the evening, the pager went off again with the same number as the previous calls. Appellant stated that he returned the call to prevent the individual who was calling the pager from coming to his house. Again, the individual threatened him and Appellant suggested that they meet to “handle” the situation. Appellant retrieved a shotgun and walked to the meeting place. After waiting a few minutes he decided to return home. He testified that as he was walking down an alley, someone fired a gun at him. As he ran, he noticed a blue car at the other end of the alley. Appellant returned home and went to lie down, but kept the shotgun at his side. At some point, Shonda called and spoke to Jackson about the events of the evening. Shonda informed Jackson that the individual who had been calling the pager was her boyfriend, Angelo Fleming. Appellant testified that having learned who the caller was, he decided that his life was in danger and that he needed to leave Louisville. While he was gathering some belongings to take with him, there was a knock at the door. Appellant grabbed his shotgun, opened the door and fired the gun. He thereafter realized that the individual at the door was George Campbell, Jackson's boyfriend. Campbell died from a shotgun blast to the face.
Appellant fled Kentucky to North Carolina where he eventually surrendered to the Greenville, North Carolina, police.

[DN 1-2 at 3 (Supreme Court of Kentucky's 1999 opinion affirming conviction).] Parker appealed his 1997 conviction as a matter of right to the Supreme Court of Kentucky, which affirmed the conviction in a ruling issued on June 17, 1999. [Id.] Parker subsequently filed a pro se post-conviction motion to vacate judgment and conviction under Kentucky Rule of Criminal Procedure 11.42 (“RCr 11.42”) on May 31, 2000. [DN 1-2 at 20 (Kentucky Court of Appeals' 2013 decision affirming denial of RCr 11.42 motion).] Appointed counsel later filed a supplemental memorandum in support of the RCr 11.42 motion on June 1, 2001. [Id.] The trial court denied the RCr 11.42 motion on April 15, 2003. [Id. at 17.] However, upon reconsideration, the trial court held an evidentiary hearing on September 23, 2005 and December 6, 2006 to consider a single claim of ineffective assistance of counsel. [Id.] Approximately five years later, the trial court denied the RCr 11.42 motion on October 25, 2011. [DN 1-2 at 16 (trial court's 2011 decision denying RCr 11.42 motion).]

         Parker appealed the trial court's denial of his RCr 11.42 motion to the Kentucky Court of Appeals, which affirmed the trial court in a decision issued August 23, 2013. [DN 1-2 at 20.] Parker then sought discretionary review of the Court of Appeals' decision, which the Supreme Court of Kentucky denied on August 13, 2014. [DN 1-2 at 28.]

         Parker filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the District Court for the Western District of Kentucky on September 22, 2014. [DN 1 at 1.] In his petition, Parker raises four grounds on which he alleges he is being held in violation of the Constitution, laws, or treaties of the United States. [Id. at 5-11.] First, Parker contends that two jury instructions given at his 1997 trial were erroneous thereby denying him “adequate notice, due process, and a fundamentally fair trial” under the Fifth, Sixth, and Fourteenth Amendments. [Id. at 5.] Second, Parker contends his Fifth, Sixth, and Fourteenth Amendment rights were violated when he was not permitted to cross-examine a key prosecution witness regarding whether the witness had motive to testify favorably for the prosecution. [Id. at 7.] Third, Parker contends that his trial counsel failed to present a defense emphasizing Parker's Post Traumatic Stress Disorder (“PTSD”) symptoms, thereby amounting to ineffective assistance of counsel in violation of the Sixth Amendment. [Id. at 8.] Fourth, Parker contends that his due process rights were violated when a State forensic psychiatrist was prohibited from testifying about her expert opinion that Parker “was suffering from an extreme emotional disturbance at the time of the fatal shooting.” [Id. at 10.]

         Parker was released from prison and granted parole on June 1, 2016. [DN 27-2.] Parker's “custody was then transferred to the KDOC, Division of Probation and Parole.” [DN 27 at 1.] As a result, this Court granted the Attorney General's Motion to Substitute the Kentucky Department of Corrections as Respondent for Warden Ravonne Sims [DN 27], who was the original respondent in this matter. [DN 28.] Parker's habeas petition remains justiciable by this Court, as the Supreme Court has explained that “[a]n incarcerated convict's (or a parolee's) challenge to the validity of his conviction always satisfies the case-or-controversy requirement, because the incarceration (or the restriction imposed by the terms of the parole) constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction.” Spencer v. Kemna, 523 U.S. 1, 7-8 (1998). The limitations imposed upon Parker by the conditions of his parole therefore satisfy Article III's case-or-controversy requirement in this case.

         As discussed below, the Magistrate Judge filed an exhaustive eighty-six page report and recommendation in which he rejected each of Parker's grounds of relief and recommended denial of the petition and the denial of a certificate of appealability. [DN 20.] Parker filed objections. [DN 22.] Pursuant to 28 U.S.C. § 636(b)(1), this Court will “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Upon such review, this Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id.


         The purpose of the writ of habeas corpus is “to ensure that individuals are not imprisoned in violation of the Constitution-not to correct errors of fact.” Herrera v. Collins, 506 U.S. 390, 400 (1993). “Federal courts are not forums in which to relitigate state trials.” Barefoot v. Estelle, 463 U.S. 880, 887 (1983).

         The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (April 24, 1996) (“AEDPA”) amended the habeas statute, 28 U.S.C. § 2254, and applies to all habeas cases filed after April 25, 1996. The petition in this case was filed after that date, and therefore, the amendments to § 2254 are applicable. See Walker v. Smith, 360 F.3d 561, 563 (6th Cir. 2004). “The Antiterrorism and Effective Death Penalty Act of 1996 modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002) (citing Williams v. Taylor, 529 U.S. 362, 403-404 (2000)). The habeas statute provides:

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 unless it appears that--
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

§ 2254(b)(1). Section 2254(d), as amended by the AEDPA, states:

(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.

§ 2254(d). Section 2254(d) “bars relitigation of any claim ‘adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (2)” above. Harrington v. Richter, 562 U.S. 86, 98 (2011).

         Following the modifications set forth by the AEDPA, the Sixth Circuit has explained that a state court decision may only be overturned if:

1. It ‘[applies] a rule that contradicts the governing law set forth in [Supreme Court of the United States] cases, ' or; 2. the state-court decision ‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent;' or 3. ‘the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case;' or 4. the state court ‘either unreasonably extends a legal principle from [a Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.'

Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001) (internal citations omitted); see also Williams v. Taylor, 529 U.S. 362, 406-409; 412-13 (2000).

         When performing analysis of a state court decision pursuant to § 2554(d), the first requirement is that state courts be tested only against “clearly established Federal law, as determined by the Supreme Court of the United States.” In order to be clearly established law, the law relied on by the petitioner must be law that was clearly established at the time the state court decision became final, not afterward. Williams, 529 U.S. at 380. The federal court is also limited to law “as determined by the Supreme Court” only. Id. at 381-82.

         Second, the Court must determine whether the state court decision was “contrary to, or involved an unreasonable application of” that clearly established law. Id. at 384. In order to find a state court's application of Supreme Court precedent unreasonable under § 2554, the state court's decision must have been objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 520 (2003); Williams, 529 U.S. at 409 (explaining, “[s]tated simply, a federal habeas court making the “unreasonable application” inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable”). An unreasonable application of federal law is distinct and different from an incorrect application of federal law. Id. at 410; see also Macias v. Makowski, 291 F.3d 447, 545 (6th Cir. 2002) (holding “the relevant question is not whether the state court's decision was wrong, but whether it was an unreasonable application of clearly established federal law”).

         Therefore, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 411. The Supreme Court has further explained that “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Stated differently, petitioners for habeas relief “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

         The AEDPA standard additionally provides that “a determination of a factual issue made by a State court shall be presumed to be correct.” § 2254(e)(1). Factual determinations by State courts will not be overturned unless objectively unreasonable. § 2254(d)(2). The applicant, or petitioner, bears the burden of rebutting the presumption of correctness by clear and convincing evidence. Id.; see also Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003) (holding “[u]nder AEDPA, primary or historical facts found by state courts are presumed correct and are rebuttable only by clear and convincing evidence” (internal quotation marks omitted)). The findings of state appellate courts are also accorded the presumption of correctness. Sumner v. Mata, 449 U.S. 539, 546 (1981) (holding “[s]ection 2254(d) ... makes no distinction between the factual determinations of a state trial court and those of a state appellate court”).

         “But there are exceptions to the requirement of AEDPA deference.” Montes v. Trombley, 599 F.3d 490, 494 (6th Cir. 2010). Specifically, the “substantially higher threshold” set by the AEDPA only applies to “claim[s] that w[ere] adjudicated on the merits in State court proceedings.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007); § 2254(d)(1). When a petitioner for habeas relief seeks review of claims that were not adjudicated on the merits in state court, “then the pre-AEDPA standards of review apply.” Montes, 599 F.3d at 494 (citing Cone, 556 U.S. at 472). Under the pre-AEDPA standard, “questions of law, including mixed questions of law and fact, are reviewed de novo, and questions of fact are reviewed under the clear-error standard.” Id. (citing Brown v. Smith, 551 F.3d 424, 430 (6th Cir. 2008)). See also Robinson v. Howes, 663 F.3d 819, 823 (6th Cir. 2011) (“Claims that were not ‘adjudicated on the merits in State court proceedings' receive the pre-AEDPA standard of review: de novo for questions of law (including mixed questions of law and fact), and clear error for questions of fact.”)

         “Under Harrington v. Richter, ‘[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on its merits in the absence of any indication or state-law procedural principles to the contrary.'” Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450, 460 (6th Cir. 2015), cert. denied sub nom (quoting Harrington, 562 U.S. at 99). However, if a state court indicates that it did not reach the merits of a claim due to some procedural principal, or “when there is reason to think some other explanation for the state court's decision is more likely” than an adjudication on the merits, the presumption will be overcome. Harrington, 562 U.S. at 99-100. For instance, when a state court makes clear that, “instead of issuing a merits decision, ” the court “appl[ied] a procedural bar and thus [did] not consider[] the merits, ” such rulings “are not subject to on-the-merits AEDPA deference.” Barton, 786 F.3d at 460-61 (citing Johnson v. Williams, 133 S.Ct. 1088, 1097 (2013)). In situations “when a state court makes clear that it is deciding a claim both on the merits and on procedural grounds, [the Sixth Circuit has] held that a federal habeas court may nonetheless review that court's merits analysis and, if appropriate, apply AEDPA deference to that adjudication.” Id. at 461 (citing Brooke v. Bagley, 513 F.3d 618, 624 (6th Cir. 2008)).


         The Court will address each of the four grounds on which Parker seeks relief, the Magistrate Judge's findings with regard to each ground, and Parker's objections to the Magistrate Judge's findings, in turn.

         I. Ground One: Instructional Error

         In addressing the Parker's first ground for relief, that is, that two of the jury instructions given in Parker's 1997 trial were erroneous, the Magistrate Judge found that these claims were procedurally defaulted and further found that Parker failed to demonstrate the necessary cause and prejudice or manifest injustice required to excuse the procedural default. [DN 20 at 35; 74- 75.] The Court agrees.

         A. Procedural Default

         “A petitioner procedurally defaults claims for habeas relief if the petitioner has not presented those claims to the state courts in accordance with the state's procedural rules.” Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000) (citing Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Coe, 161 F.3d at 329; Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991)). As the Magistrate Judge explained, “[a] prisoner first may procedurally default a given claim by failing to comply with an established state procedural rule when presenting his claim at trial or on appeal in the state courts.” [DN 20 at 36 (citing Sykes, 433 U.S. at 87).] Additionally, procedural default can occur when a petitioner completely “fail[s] to raise a claim in state court, and pursue that claim through the state's ordinary appellate review procedures.” Carter v. Mitchell, 693 F.3d 555, 563 (6th Cir. 2012) (quoting Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)). The Magistrate Judge further explained that a “claim will be held to be procedurally defaulted if, at the time the prisoner's habeas petition is filed, state law does not permit the prisoner to further pursue the claim.” [DN 20 at 39 (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); Engle v. Issac, 456 U.S. 107, 125 n. 28 (1982)).] In situations

[w]hen a “state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice ... or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.”

Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004) (quoting Coleman, 501 U.S. at 750).

         The first instructional error Parker asserts in his first ground for relief is that the jury instruction on intentional murder (the “murder instruction”) was flawed because it allowed the jury to convict him “if they believed it was his intention to kill George Campbell ‘or another person, '” which, according to Parker, broadened the charge contained in Parker's indictment, which was for the murder of George Campbell only. [DN 1 at 5; DN 1-3 at 16.] According to Parker, this was a “fatal variance” and that the variance, in effect, “constructively amended” the indictment. [DN 1-3 at 16.] Parker further states that the murder “instruction failed to specifically name Angelo Fleming as the ‘other person' despite probative evidence that he was the individual with whom the Petitioner argued over the telephone, and his testimonial evidence that he was in the area of the Petitioner's home.” [Id. at 15.]

         The second instructional error Parker asserts is with the instructions on self-protection and imperfect self-protection (the “self-protection instructions”), also known as self-defense and imperfect self-defense. Specifically, the self-protection instructions that were ultimately tendered to the jury did not contain the “or another” language. [DN 1 at 5.] Parker explains that, at trial, he “did not assert that he believed that he was defending himself against George Campbell. He believed that he was defending himself against Angelo Fleming.” [DN 22 at 4.] Therefore, Parker contends the omission of language which would allow the jury to find Parker guilty of a lesser offense based on his unreasonable belief that he needed to protect himself against “another person” other than George Campbell effectively “foreclosed a finding of self-defense or imperfect self-defense, because neither the defense nor the Commonwealth presented any evidence that the Petitioner feared death or serious physical injury at the hands of George Campbell.” [Id. at 5.] As the Magistrate Judge explained, because of Parker's defense that he believed someone other than Campbell was at the door at the time of the shooting, the trial court indeed

reject[ed] the objection of the Commonwealth and . . . sustain[ed] the self-protection instruction using the words “or another.” For some unknown reason, however, the written instructions tendered to the jury, in particular 3 and 3A dealing with self-protection and imperfect self-protection, failed to include the phrase “or another, ” contrary to the ruling of the trial court, but were nonetheless used without objection by defense counsel.

[DN 20 at 32-33.] It appears this omission was inadvertent.

         Applying the four-part test established by the Sixth Circuit in Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986), however, the Magistrate Judge determined that both of Parker's claims of instructional error were procedurally defaulted. The Magistrate Judge wrote:

[t]he Sixth Circuit in Greer v. Mitchell, 264 F.3d 663, 672 (6th Cir. 2001) explained the Maupin test as follows:
This court's Maupin decision sets out four inquiries that a district court should make when the state argues that a habeas claim has been defaulted by petitioner's failure to observe a state procedural rule. First, the court must determine whether there is such a procedural rule that is applicable to the claim at issue and whether the petitioner did, in fact, fail to follow it. Maupin, 785 F.2d at 138. Second, the court must decide whether the state courts actually enforced its procedural sanction. Id. Third, the court must decide whether the state's procedural forfeiture is an “adequate and independent” ground on which the state can rely to foreclose review of a federal constitutional claim. “This question will usually involve an examination of the legitimate state interests behind the procedural rule in light of the federal interest in considering federal claims.” Id. And, fourth, the petitioner must demonstrate, consistent with Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), that there was “cause” for him to neglect the procedural rule and that he was actually prejudiced by the alleged constitutional error. Id.; see also Scott v. Mitchell, 209 F.3d 854, 864 (6th Cir.), cert. denied, 531 U.S. 1021, 121 S.Ct. 588, 148 L.Ed.2d 503 (2000).

[DN 20 at 38 (quoting Greer, 264 F.3d at 672).]

         In reliance on Maupin, the Magistrate Judge explained that “[t]he Supreme Court of Kentucky, the highest state court to review Parker's current jury arguments in its 199[9] opinion declined to address the merits of either [of Parker's jury instruction] argument[s].” [Id. at 51.] Specifically, the Magistrate Judge explained that, first, the Kentucky Supreme Court

concluded that his challenge to the self-protection instructions . . . and their failure to include the phrase “or another” was not preserved for review, despite the ruling of the trial court that both instructions should include the omitted phrase, where defense counsel failed to object when the erroneous written instructions omitting the phrase were read to the jury at trial.
The Kentucky Supreme Court concluded that defense counsel had a duty under RCr 9.54(2)[3] to object under the circumstances to bring the omission to the attention of the trial court. No objection was raised contrary to the requirements of the Rule.
. . .
Accordingly, the Supreme Court of Kentucky . . . followed a firmly established, regularly followed state procedural rule when it declined to consider the merits of his “or another” argument regarding the self-protection instructions . . . of the 1997 trial.

[Id. at 51-52.] In addition to finding Parker's claim unpreserved under RCr 9.54(2), the Supreme Court of Kentucky additionally held that the omission of the “or another” language was not palpable error because,

with the exception of the qualification instruction, the self-defense instruction was identical to that given during the first trial. In his original appeal to this Court, Appellant did not raise as error the omission of the phrase “or another” . . . As such, he is bound by the law of the case. Haight v. Commonwealth, Ky., 938 S.W.2d 243 (1996); Williamson v. Commonwealth, Ky., 767 S.W.2d 323 (1989).

[DN 1-2 at 5.]

         With regard to the murder instruction, the Magistrate Judge applied Maupin again, explaining:

The Supreme Court of Kentucky . . . likewise found that Parker had failed to preserve his jury instruction challenge to the murder instruction . . . Parker, as earlier mentioned, had maintained on appeal that the instruction was deficient because it did not specifically identify whom Parker intended to kill that afternoon on May 29, 1994, when he fired the shotgun blast immediately upon opening the front door to the house. Parker maintained that the instruction should not have included the phrase ...

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