United States District Court, W.D. Kentucky, Louisville
B. RUSSELL, SENIOR JUDGE.
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) 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.
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).] 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
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
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.]
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.]
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.
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.
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).
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
(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,
(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;
(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).
the modifications set forth by the AEDPA, the Sixth Circuit
has explained that a state court decision may only be
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
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.
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”).
“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.
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
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
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)).
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.
Ground One: Instructional Error
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.
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).
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.]
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
[DN 20 at 32-33.] It appears this omission was inadvertent.
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
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).]
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 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) 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
. . .
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.]
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 ...