United States District Court, W.D. Kentucky, Paducah Division
MEMORANDUM OPINION AND ORDER
N. Stivers, United States District Court Judge
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
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
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
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
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.
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.
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.
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.
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.
STANDARD OF REVIEW
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
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;
(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).
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.
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.
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).
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)).