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Bailey v. White

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

June 1, 2017



          Greg N. Stivers, United States District Court Judge

         This matter is before the Court on Magistrate Judge King's Findings of Fact, Conclusions of Law, and Recommendation (DN 12) (“R&R”), Respondent's Objections (DN 13), and Petitioner's Objections (DN 15). For the following reasons, the Court ADOPTS IN PART Magistrate Judge King's R&R, OVERRULES Petitioner's Objections, OVERRULES IN PART and SUSTAINS IN PART Respondent's Objections, and DENIES the Petition for Habeas Corpus Relief (DN 1).

         I. BACKGROUND

         On August 9, 2006, a McCracken Circuit Court jury found Quincy Bailey (“Bailey”) guilty of murder and Bailey was sentenced to life imprisonment in Criminal Action No. 04-CR-00361. (App. 24-25, DN 9-3). Following the entry of the judgment, Bailey's counsel moved for a new trial, which was denied as untimely and as lacking merit. (App. 26-31). On June 25, 2009, the Kentucky Supreme Court upheld the conviction in his direct appeal. See Bailey v. Commonwealth, No. 2006-SC-000785-MR, 2009 WL 1830808, at *5-6 (Ky. Oct. 1, 2009) (Bailey I). In that appeal, one of the many issues Bailey raised was an ambiguity with the jury verdict form, which that court described as follows:

The trial court correctly read the jury instructions to the jury and a packet of instructions was provided to each juror. However, in that packet, the first-degree manslaughter instruction was erroneously placed before the murder instruction. That is, the first six written instructions were given to the jury in the following order: Instruction 1 (presumption of innocence); Instruction 2 (definitions); Instruction 4 (first-degree manslaughter); Instruction 3 (Murder); Instruction 5 (second-degree manslaughter); and Instruction 6 (reckless homicide). Undoubtedly, this was an administrative mistake.
Unfortunately, the verdict form compounded this error. The written verdict form directed the jury to execute only one of five possible verdicts. The jury executed, and the foreperson signed, the first verdict statement: “We, the jury, find the Defendant, Quincy D. Bailey, guilty of Murder under Instruction No. 4.” As stated above, Instruction 4 relates to first-degree manslaughter, not murder, though it was the first homicide instruction in the packet. Thus, on the face of the verdict form, two equally plausible interpretations exist: that the jury found Appellant guilty of murder, though the instruction erroneously refers to Instruction No. 4; or that the jury found Appellant guilty of first-degree manslaughter under Instruction No. 4, though the instruction erroneously refers to murder.
The ambiguity in the verdict form was not recognized at trial. The trial court accepted the verdict without objection from either party and polled the jury as to their finding of murder. Judgment was entered. Apparently, the trial court later realized the error in the verdict and issued an order the following week which stated: “The jury was polled as to their finding. Although, there is a typographical error in the verdict form, that both the Commonwealth and the defense counsel over looked (sic), it does not effect (sic) the outcome of the jurors (sic) clear verdict of murder.” Appellant's final sentencing occurred about a month later and, again, defense counsel made no objection regarding the verdict form.

Id. at *5-6. In addressing the ambiguity and ultimately holding that Bailey's due process rights were not violated under state law, the Kentucky Supreme Court stated:

Here, on its face, the verdict form is open to two distinct interpretations. However, the jury's intention to find Appellant guilty of murder can be ascertained from the circumstances of the trial. Contrary to Appellant's arguments, we believe the jury was aware that manslaughter and murder are distinct offenses. In its closing arguments, both the Commonwealth and defense counsel thoroughly explained the degrees of homicide. During the sentencing phase, repeated and continual reference was made to murder and the penalties allowed for that offense.
Furthermore, when the jury was polled, specific reference was made to its having “found defendant guilty of murder.” All jurors individually affirmed that this was, indeed, their verdict.
We also find significant the jury's recommended sentence. The jury originally returned a sentencing recommendation of “25 years to life.” The trial court explained that the allowable sentences for murder were either a term of years between 20 and 50 years or life imprisonment. The jury returned a revised recommendation of “life.” We believe that, had the jury intended to convict Appellant of the lesser offense of first-degree manslaughter, it is improbable that it would then recommend the harshest possible sentence.
Most importantly, we cannot ignore the fact that no objection was made to the trial court concerning the verdict. Evidently, the typographical error went unnoticed at trial. However, the trial court sua sponte clarified the verdict in its order issued a week later. Defense counsel received a copy of this order and was, therefore, on notice of the verdict's defect. Still, at the final sentencing proceeding a month later, no objection was made to the verdict. The trial court specifically asked defense counsel if any lawful reason existed why sentence should not be imposed, and defense counsel responded in the negative. We reiterate these circumstances not to highlight the lack of preservation of this issue, but to evidence the general understanding held by defense counsel, the Commonwealth, and the trial court, that Appellant was found guilty of murder, even after the apparent defect was brought to light.

Id. at *7-8 (internal citations omitted). Bailey's petition for rehearing was subsequently denied. (App. 447).

         On January 8, 2010, Bailey moved for relief from the judgment pursuant to Kentucky Rule of Civil Procedure (“CR”) 60.02. (App. 35). In that motion, Bailey raised the issue of the ambiguous jury verdict form. (App. 36-41). The McCracken Circuit Court denied the motion due to the issue not being timely raised and having been previously addressed by the Kentucky Supreme Court in Bailey's direct appeal. (App. 45). The Kentucky Court of Appeals affirmed the denial of relief under CR 60.02. See Bailey v. Commonwealth, No. 2010-CA-000425-MR, 2011 WL 5244935, at *1 (Ky. App. Nov. 2011) (Bailey II). The appellate court reasoned that Bailey was improperly asserting issues that could “‘reasonably have been presented' by direct appeal or RCr 11.42 proceedings.” Id. at *2 (citations omitted). The court further noted that the Supreme Court had previously addressed the issue raised in Bailey's direct appeal. See id.

         On October 17, 2011, Bailey sought relief from his conviction pursuant to Kentucky Rules of Criminal Procedure (“RCr”) 11.42 and 10.26. (App. 47). In that motion, Bailey asserted 25 grounds for relief based upon ineffective assistance of counsel, which included the issues of the jury verdict form and investigation of witnesses. (App. 47-49). The McCracken Circuit Court denied the motion. (App. 197). On appeal, the Kentucky Court of Appeals affirmed the order denying the motion. See Bailey v. Commonwealth, No. 2012-CA-000090-MR, 2014 WL 28671, at *1 (Ky. App. Jan. 3, 2014) (Bailey III). In particular, the appellate court stated that “it is evident that even if Bailey's counsel was deficient in failing to object to these errors regarding the verdict, no prejudice resulted because the jury's verdict would not have changed. The jury both intended and did convict him of murder, regardless of any irregularities.” Id. at *6. In denying Bailey's claim of ineffective assistance of counsel relating to the investigation of potential witnesses, the court found that he failed to allege any prejudice because those witnesses' testimony would not have changed the outcome of the trial. See Id. at *3. The Kentucky Supreme Court subsequently denied discretionary review. See Id. at *1.

         On June 25, 2015, Bailey filed the Petition in this Court. (Pet. Writ Habeas Corpus, DN 1). On September 30, 2015, Respondent filed his response and asserted that Bailey's claims were procedurally defaulted. (Resp't's Resp. 1, 9-13, DN 9). On December 9, 2015, the Magistrate Judge filed the R&R recommending that the petition be denied but recommending that a certificate of appealability be issued. (R. & R. 18, DN 12). Both parties timely filed objections. (Pet'r's Objs., DN 13; Resp't's Objs., DN 15). This matter is thus ripe for adjudication.


         This Court has jurisdiction to “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court” pursuant to 28 U.S.C. § 2254.


         In general, this Court conducts a de novo review of the portions of a United States magistrate judge's report and recommendation to which a party objects. See 28 U.S.C. § 636(b)(1). In conducting its review, this Court “may accept, reject, or modify, in whole or in part, the findings or recommendations [of] . . . the magistrate judge.” Id.

         The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), applies to all habeas corpus petitions filed after April 24, 1996, and requires “heightened respect” for legal and factual determinations made by state courts. See Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). Section 2254(d), as amended by AEDPA, 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 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).

         With respect to Section 2254(d)(1), the phrase “contrary to” means “‘diametrically different, ' ‘opposite in character or nature, ' or ‘mutually opposed.'” Williams v. Taylor, 529 U.S. 362, 405 (2000) (citing Webster's Third New International Dictionary 495 (1976)). Thus, under the “contrary to” clause of that subsection, the Court may grant the petition if: (a) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law; or (b) the state court decides a case differently than the Supreme Court “has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13.

         Under the “unreasonable application” clause of § 2254(d)(1), the Court may grant the petition if the state court identifies the correct governing legal rule from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. See Id. at 407-08, 413. When the Court makes the “unreasonable application” inquiry it “should ask whether the state court's application of clearly established federal law was objectively unreasonable.” Id. at 409. Thus, the state court's application of clearly established federal law must be more than simply erroneous or incorrect, it must be objectively unreasonable. See Id. at 409-11; Macias v. Makowski, 291 F.3d 447, 451 (6th Cir. 2002).

         Under Section 2254(d)(2), the petitioner may obtain relief only by showing the state court's conclusion is “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Thus, Section 2254(d)(2) applies when a petitioner challenges factual determinations by the state court. See, e.g., Mitzel v. Tate, 267 F.3d 524, 537 (6th Cir. 2001) (challenge to state court's determination that the evidence did not support an aiding and abetting suicide instruction); Clark v. O'Dea, 257 F.3d 498, 506 (6th Cir. 2001) (challenge to state court's factual determination that Sheriff Greer had not seen the letter prior to Clark's trial); Stallings v. Bagley, 561 F.Supp.2d 821, 880-81 (N.D. Ohio 2008) (challenge to state court's factual finding regarding issue of mental retardation).

         In general, Section 2254(d) provides a “difficult to meet and highly deferential standard . . . .” Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (internal quotation marks omitted) (citation omitted). All findings of fact by the state court are presumed to be correct and can be rebutted only by “clear and convincing evidence.” Mitchell v. Mason, 325 F.3d 732, 737-38 (6th Cir. 2003) (citing 28 U.S.C. § 2254(e)(1)). Legal conclusions made by state courts are also given substantial deference under AEDPA. The Supreme Court has recently reiterated that “a federal habeas court may overturn a state court's application of federal law only if it is so erroneous that there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents.” Nevada v. Jackson, 133 S.Ct. 1990, 1992 (2013) (per curiam) (internal quotation marks omitted) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)).

         III. ...

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