United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
N. Stivers, United States District Judge.
matter comes before the Court on the Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 (DN 1), as
amended, and Petitioner's Motion for Summary Judgment (DN
141). The Magistrate Judge has issued Findings of Fact,
Conclusions of Law, and Recommendation
(“R&R”) (DN 160) recommending that the
Petitioner's federal habeas Petition and his Motion for
Summary Judgment be denied. The Petitioner has filed his
Objection to the Report and Recommendation (DN 166). For the
following reasons, the Petitioner's Objection is
OVERRULED and the Magistrate Judge's
R&R is ADOPTED to the extent that it
does not conflict with this opinion of the Court.
Magistrate Judge's R&R sets forth in detail the
extensive procedural history and the relevant facts of this
matter, which the Court incorporates herein by reference. (R.
& R. 2-15, DN 160).
Court has jurisdiction to “entertain an application for
a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court . . . .” 28
U.S.C. § 2254(a).
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), federal habeas corpus relief is
available to state prisoners who are in custody “in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). To establish
a right to relief, a petitioner must show that the
state's highest court rejected the petitioner's claim
on the merits, and that this rejection was: (1)
“contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States, ” or (2) was
“based on an unreasonable determination of the facts in
light of the evidence presented in the State court
proceeding.” Id. § 2254(d);
Harrington v. Richter, 562 U.S. 86, 98 (2011). These
standards apply regardless of whether the state court
explained its reasons for rejecting a prisoner's claim.
Harrington, 562 U.S. at 98 (“Where a state
court's decision is unaccompanied by an explanation, the
habeas petitioner's burden still must be met by showing
there was no reasonable basis for the state court to deny
the “contrary to” clause, a federal court may
grant a writ of habeas corpus relief if the state court
arrives at a conclusion contrary to that reached by the
United States Supreme Court on a question of law or if the
state court decides a case differently than the U.S. Supreme
Court has decided on a set of materially indistinguishable
facts. Jones v. Jamrog, 414 F.3d 585, 591 (6th Cir.
2005) (citing Williams v. Taylor, 529 U.S. 362,
405-06 (2000)). Under the “unreasonable
application” clause, a federal court may grant habeas
corpus relief if the state court identifies the correct
governing legal principle from the U.S. Supreme Court's
decisions, but unreasonably applies that principle to the
facts. Id. (citing Williams, 529 U.S. at
409). Relief is also available under this clause if the state
court decision either unreasonably extends or unreasonably
refuses to extend a legal principle from U.S. Supreme Court
precedent to a new context. Williams, 529 U.S. at
407. The proper inquiry is whether the state court decision
was “objectively unreasonable” and not simply
erroneous or incorrect. Id. at 409-11.
not enough that a federal court conclude in its independent
judgment that the state court decision is incorrect or
erroneous. Yarborough v. Alvarado, 541 U.S. 652, 665
(2004) (quoting Woodford v. Visciotti, 537 U.S. 19,
24-25 (2002)). See also Holder v. Palmer, 588 F.3d
328, 337 (6th Cir. 2009) (explaining that a state court
decision is not an unreasonable application merely because
the state court's reasoning is flawed). “The state
court's application of clearly established law must be
objectively unreasonable.” Lockyer v. Andrade,
538 U.S. 63, 75 (2003) (citing Williams, 529 U.S. at
409). See also Renico v. Lett, 559 U.S. 766, 777-78
(2010). AEDPA imposes a “highly deferential standard
for evaluating state-court rulings, which demands that
state-court decisions be given the benefit of the
doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005)
(quotation marks omitted) (internal citation omitted)
(citation omitted). The state court decision is evaluated
using the law at the time of the petitioner's state court
conviction became final. Williams, 529 U.S. at
379-80 (citing Teague v. Lane, 489 U.S. 288 (1989)).
“it is possible ‘fairminded jurists could
disagree' on the correctness of the state court's
decision, ” habeas relief is unavailable.
Harrington, 562 U.S. at 101 (quoting
Yarborough, 541 U.S. at 664). For habeas relief to
be granted, “a state prisoner 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 (citation omitted). “The state-court decision
need not refer to relevant Supreme Court cases or even
demonstrate an awareness of them.” Slagle v.
Bagley, 457 F.3d 501, 513 (6th Cir. 2006) (citing
Early v. Packer, 537 U.S. 3, 8 (2002)).
“Instead, it is sufficient that the result and
reasoning are consistent with Supreme Court precedent.”
Id. at 514 (citing Early, 537 U.S. at 8).
Section 2254(d)(2), the petitioner may obtain relief by
showing the state court's factual finding is “an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”
Thus, Section 2254(d)(2) applies when a petitioner challenges
factual determinations by the state court. Notably, the
factual findings of the state court are presumed to be sound
unless the petitioner rebuts the “presumption of
correctness by clear and convincing evidence.”
Miller-El v. Dretke, 545 U.S. 231, 240 (2005)
(internal quotation marks omitted) (quoting 28 U.S.C. §
2254(e)(1)). The U.S. Supreme Court has observed although
this deference accorded to state court findings under Section
2254(e)(1) is demanding, it is not insatiable and it
“‘does not by definition preclude
relief.'” Id. at 240 (quoting
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). In
sum, with respect to Section 2254(d)(2), “[f]actual
determinations by state courts are presumed correct absent
clear and convincing evidence to the contrary, and a decision
adjudicated on the merits in a state court will not be
overturned on factual grounds unless objectively unreasonable
in light of the evidence presented in the state-court
proceeding.” Miller-El, 537 U.S. at 340
(internal citation omitted) (citation omitted).
Summary Judgment Standard
Civ. P. 56 requires the Court to grant a motion for summary
judgment if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). If a
moving defendant shows that there is no genuine issue of
material fact as to at least one essential element of the
plaintiff's claim, the burden shifts to the plaintiff to
provide evidence beyond the pleadings, “set[ting] forth
specific facts showing that there is a genuine issue for
trial.” Moldowan v. City of Warren, 578 F.3d
351, 374 (6th Cir. 2009). See also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). “In
evaluating the evidence, the court must draw all inferences
in the light most favorable to the non-moving party.”
Moldowan, 578 F.3d at 374 (citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
stage, “‘the judge's function is not . . . to
weigh the evidence and determine the truth of the matter, but
to determine whether there is a genuine issue for
trial.'” Id. (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). But
“[t]he mere existence of a scintilla of evidence in
support of the [non-moving party's] position will be
insufficient, ” and the party's proof must be more
than “merely colorable.” Anderson, 477
U.S. at 252. An issue of fact is “genuine” only
if a reasonable jury could find for the non-moving party.
Moldowan, 578 F.3d at 374 (citing Anderson,
477 U.S. at 252).
Objection to the Magistrate Judge's
objection is made to a magistrate judge's report and
recommendation, a district judge “must determine de
novo any part of the magistrate judge's disposition that
has been properly objected to. The district judge may accept,
reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate
judge with instructions.” Fed.R.Civ.P. 72(b)(3).
“[V]erbatim regurgitation of the arguments made in
earlier filings are not true objections.” Bushner
v. Larose, No. 5:14CV00385, 2017 WL 1199160, at *2 (N.D.
Ohio Mar. 31, 2017). When an “objection” merely
states disagreement with the magistrate judge's suggested
resolution, it is not an objection for the purposes of this
review. Cvijetinovic v. Eberlin, 617 F.Supp.2d 620,
632 (N.D. Ohio 2008), rev'd on other grounds,
617 F.3d 833 (6th Cir. 2010). The Sixth Circuit has stated
that “[o]verly general objections do not satisfy the
objection requirement.” Spencer v. Bouchard,
449 F.3d 721, 725 (6th Cir. 2006), abrogated on other
grounds by Jones v. Bock, 549 U.S. 199 (2007) (citations
omitted). Only specific objections are entitled to de
novo review; vague and conclusory objections amount to a
complete failure to object as they are not sufficient to
pinpoint those portions of the magistrate judge's report
and recommendation that are legitimately in contention.
Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986).
“The objections must be clear enough to enable the
district court to discern those issues that are dispositive
and contentious.” Miller v. Currie, 50 F.3d
373, 380 (6th Cir. 1995) (citation omitted).
“‘[O]bjections disput[ing] the correctness of the
magistrate's recommendation but fail[ing] to specify the
findings . . . believed [to be] in error' are too
general.” Spencer, 449 F.3d at 725
(alterations in original) (quoting Miller, 50 F.3d
arguments raised for the first time in a petitioner's
objection to a magistrate judge's report and
recommendation are considered waived. See Murr v. United
States, 200 F.3d 895, 902 n.1 (6th Cir. 2000) (citing
approvingly several courts which have held that, absent
compelling reasons, “the Magistrate Judge Act . . .
does not allow parties to raise at the district court stage
new arguments or issues that were not presented to the
magistrate [judge].” (citation omitted)). Courts have
applied this general rule in the habeas corpus context.
See Sanders v. Kelly, No. 5:09CV01272, 2012 WL
2568186, at *9 (N.D. Ohio June 29, 2012) (holding that
petitioner's newly raised ineffective assistance of
counsel claims in objections to a report and recommendation
on habeas petition are “not properly before the
Court.”). See also Brewer v. Bottom, No.
10-26-KSF, 2012 WL 404878, at *8 (E.D. Ky. Feb. 8, 2012)
(rejecting petitioner's claim in habeas petition raised
for the first time in objections to the report and
recommendation and noting that “[t]hese reasons alone
are sufficient grounds to reject [the petitioner's]
objection.”). “[A]llowing parties to litigate
fully their case before the magistrate [judge] and, if
unsuccessful, to change their strategy and present a
different theory to the district court would frustrate the
purpose of the Magistrates Act.” Greenhow v.
Sec'y of Health & Human Servs., 863 F.2d 633,
638 (9th Cir. 1988), overruled on other grounds by United
States v. Hardesty, 977 F.2d 1347 (9th Cir. 1992).
Certificate of Appealability
the AEDPA, a decision of this Court may not be appealed to
the Sixth Circuit absent a certificate of appealability.
See 28 U.S.C. § 2253(c)(1). “A
certificate of appealability may issue . . . only if the
applicant has made a substantial showing of the denial of a
constitutional right.” Id. § 2253(c)(2).
“To obtain a [certificate of appealability] under
§ 2253(c), a habeas prisoner must make a substantial
showing of the denial of a constitutional right, a
demonstration that . . . includes showing that reasonable
jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different
manner or that the issues presented were ‘adequate to
deserve encouragement to proceed further.'”
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4
court has rejected a petitioner's constitutional claim on
the merits, the petitioner must demonstrate “that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong” to satisfy Section 2253(c). Id. at 484.
A certificate of appealability should be issued when a writ
of habeas corpus is denied on procedural grounds and the
petitioner can demonstrate that: (1) “jurists of reason
would find it debatable whether the petition states a valid
claim of the denial of a constitutional right” and (2)
“jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.”
Id. “Where a plain procedural bar is present
and the district court is correct to invoke it to dispose of
the case, a reasonable jurist could not conclude either that
the district court erred in dismissing the petition or that
the petitioner should be allowed to proceed further.”
Objection, Petitioner Randy Haight (“Haight”)
raises issues relating to the Magistrate Judge's review
of his plea agreement, his ineffective assistance of counsel
claims, jury selection, the death penalty, his
post-conviction proceedings, the jury instructions and
verdict form, prosecutorial misconduct, and several
miscellaneous matters. Each issue will be addressed in turn.
Plea Agreement Issues
1:Due Process and Specific Enforcement of the
Ground 1, Haight contends that due process requires the
specific enforcement of his 1986 plea agreement entered in
the Garrard Circuit Court. (Pet'r's Mem. Supp. Pet.
19-28, DN 61 [hereinafter Pet'r's Mem. Supp.];
Pet'r's Reply Resp. Pet. 11-14, DN 142 [hereinafter
Pet'r's Reply]; Pet'r's Mot. Summ. J. 18-35,
DN 141). Specifically, Haight argues that his plea
of guilty to charges of murder, which the Kentucky Supreme
Court set aside in Haight I, rendered impossible any
opportunity for him subsequently to obtain a fair trial.
(Pet'r's Mot. for Summ. J. 18-35 (citing Haight
v. Commonwealth, 760 S.W.2d 84, 89 (Ky. 1988)
to Haight's due process argument is the language in the
plea agreement in which the Commonwealth promised to take no
action inconsistent with the agreement. Haight
II, 833 S.W.2d at 824. He claims that the plea agreement
was an enforceable contract with constitutional implications,
thus the Commonwealth was bound by the plea agreement and
barred from seeking the death penalty on remand. Both
Haight I and Haight II rejected
Haight's argument for specific enforcement of the 1986
plea agreement. Haight I, 760 S.W.2d at 88;
Haight II, 833 S.W.2d at 824. The court reasoned
that there was no breach of an agreement to warrant specific
enforcement because “the Commonwealth consistently
presented the recommended sentence found within the 1986 plea
agreement at the initial trial.” Haight II,
833 S.W.2d at 824. See also Haight I, 760 S.W.2d at
present action, Haight contends that the Kentucky Supreme
Court's reasoning is an unreasonable application of the
facts because there was a breach of the plea agreement and
thus, the Kentucky Supreme Court's decision to disallow
specific performance of that agreement is contrary to
fundamental principles of federal law as announced in
Santobello v. New York, 404 U.S. 257, 260 (1971).
The Magistrate Judge concluded that: (i) the Kentucky Supreme
Court's holding that the Commonwealth did not breach the
plea agreement was not an unreasonable application of the
facts; (ii) Santobello was not unreasonably applied
by the Kentucky Supreme Court; and (iii) federal courts do
not possess supervisory authority over state courts to impose
specific performance even if the Kentucky Supreme
Court unreasonably applied the facts of the case in finding
that the Commonwealth had not breached the agreement. (R.
& R. 26-41).
objects to the Magistrate Judge's conclusion that the
Kentucky Supreme Court's determination that the plea
agreement had not been breached was not objectively
unreasonable. Haight argues that the Magistrate Judge
misconstrued the issue in deciding that there was not a
breach because the Magistrate Judge did not consider the
Commonwealth's actions on appeal or the
Commonwealth's opposition of Haight's Motion to
Enforce Plea Agreement. (Pet'r's Obj. R. & R. 9,
DN 66 [hereinafter Pet'r's Obj.]).
Court reiterates that in determining Haight's habeas
corpus claim the question is not whether this Court could
find a breach of the plea agreement, but whether the Kentucky
Supreme Court's finding of no breach was objectively
unreasonable. See 28 U.S.C. § 2254(e)(1). In
this regard, the factual findings of the state court are
presumed correct. Id. Section 2254(d)(2) has been
interpreted as precluding a federal court from
“set[ting] aside reasonable state-court determinations
of fact in favor of its own debatable interpretation of the
record . . . .” Rice v. Collins, 546 U.S. 333,
335 (2006). In Haight II, the Kentucky Supreme Court
ruled that the plea agreement was not breached, despite the
Commonwealth's opposition on appeal, because the
Commonwealth honored the plea agreement through the original
trial. Haight II, 833 S.W.2d at 824. Haight has
failed to show how this is an objectively unreasonable
determination of fact by the Kentucky Supreme Court or is
contrary to or an unreasonable application of federal law.
as recognized by the Magistrate Judge, even if this Court
were to determine that the plea agreement had been breached,
Haight cannot show that he would be entitled to specific
performance. (R. & R. 36-37). Haight contends that the
Kentucky Supreme Court's failure to order specific
performance was a clearly unreasonable application of
Santobello. (Pet'r's Obj. 7). The U.S.
Supreme Court in Santobello held that the remedies
for a breach of a plea agreement are either specific
performance of the agreement or rescission of the entire
agreement and withdrawal of the guilty plea, to be fashioned
by the state court based on what “the circumstances of
[the] case require.” Santobello, 404 U.S at
263. Citing Santobello, the Haight I
decision vacated the judgment of the original trial court,
vacated Haight's guilty plea, and reinstated all charges
in the indictment as originally returned by the grand jury.
Haight I, 760 S.W.2d at 89. Haight was allowed to
withdraw his guilty plea after the trial court originally
refused to let him withdraw from the agreement; thus, Haight
sought and was granted one of the available remedies under
Santobello. In this regard, the Kentucky Supreme
Court in Haight I directly complied with
Santobello, as it had the discretion to choose the
most appropriate remedy based on the circumstances of the
case. Santobello, 404 U.S. at 263. See also Fox
v. Johnson, 832 F.3d 978, 988 (9th Cir. 2016)
(“But, here, rather than seek specific performance, Fox
chose to withdraw her guilty plea, voiding the plea
agreement. She sought one of the remedies under
Santobello, and received it. Even if she had sought
specific performance, Santobello ‘leave[s] to
the discretion of the state court' whether the
circumstances of the case require specific performance or an
opportunity to withdraw the plea. No binding Supreme Court
decision finds a constitutional violation when a state court
chooses the remedy a petitioner expressly chose or when she
maintains her innocence of the original charges.”
(alteration in original) (internal citation omitted)).
the Court overrules Haight's Objection to the R&R
regarding Ground 1 of the Petition. After conducting de
novo review and finding no error as to the reasoning of
the Magistrate Judge, the R&R is adopted as to Ground 1.
The Magistrate Judge also recommended the issuance of a
certificate of appealability on this ground; however, the
Court concludes that reasonable jurists could not debate that
the Kentucky Supreme Court directly complied with
Santobello when it allowed Haight to withdraw his
Ground 2: Vindictive Prosecution
Ground 2, Haight claims that the decision of the Commonwealth
to seek the death penalty following his initial successful
appeal was presumptively vindictive in violation of the
Eighth and Fourteenth Amendments. (Pet'r's Mem. Supp.
29; Pet'r's Mot. Summ. J. 18-35). The Magistrate
Judge concluded that Haight did not demonstrate that clearly
established precedent of the United States Supreme Court was
unreasonably applied or is clearly contrary to the Kentucky
state court's decisions in Haight I, Haight
II, or Haight III. In his Petition, Haight
mainly relies upon an Illinois Supreme Court case and did not
cite to any U.S. Supreme Court precedent that would support
his argument. (R. & R. 42; Pet'r's Mem. Supp.
29-31). Haight objects to the Magistrate Judge's
conclusion and mentions, for the first time, that the
Kentucky Supreme Court's ruling was an unreasonable
application of North Carolina v. Pearce, 395 U.S.
711(1969), overruled in part by Alabama v. Smith,
490 U.S. 794, 801 (1989); Wayte v. United States,
470 U.S. 598 (1985); and Blackledge v. Perry, 417
U.S. 21, 28 (1974). This injection of U.S. Supreme Court
precedent into his argument, however, does not change the
court may constitutionally impose a greater sentence upon a
defendant after a successful appeal, the imposition of such a
greater sentence cannot be based upon vindictiveness.
Pearce, 395 U.S. at 719-25. “[T]he Due Process
Clause is not offended by all possibilities of increased
punishment . . . but only by those that pose a realistic
likelihood of ‘vindictiveness.'”
Blackledge, 417 U.S. at 27. The U.S. Supreme Court
has stressed that in cases dealing with pretrial
prosecutorial decisions, “a mere opportunity for
vindictiveness is insufficient to justify the imposition of a
prophylactic rule.” United States v. Goodwin,
457 U.S. 368, 384 (1982); Bordenkircher v. Hayes,
434 U.S. 357 (1978). The standard itself, however, is an
objective one-whether a reasonable person would think there
existed a realistic likelihood of vindictiveness. United
States v. Andrews, 633 F.2d 449, 454 (6th Cir. 1980).
Where the presumption of vindictiveness does not arise, the
defendant bears the burden of proving actual vindictiveness.
See Wasman v. United States, 468 U.S. 559, 569
Magistrate Judge determined that Ground 2 failed on the
merits because there was no presumption of prosecutorial
vindictiveness, and therefore the Kentucky Supreme
Court's denial of Haight's claim was not an
unreasonable application of clearly established U.S. Supreme
Court law. (R. & R. 43-44). In his Objection, Haight
argues that a presumption of vindictiveness arose because the
Commonwealth's decision to seek the death penalty
following Haight I demonstrates a realistic
likelihood of vindictiveness as there was no change in
circumstances or new evidence between the original plea offer
of 25 years to life without parole and the Commonwealth's
decision to seek the death penalty after the initial
successful appeal. (Pet'r's Obj. 12). The Kentucky
Supreme Court in Haight II held:
With reinstatement of the original indictment and
[Haight's] entry of a plea of not guilty to these
charges, [Haight] returned to the place he was in before the
plea agreement was entered. The Commonwealth exhibits no
prosecutorial vindictiveness for there is no appearance of
retaliation when a defendant is placed in the same position
as he was in before he accepted the plea bargain.
Haight II, 833 S.W.2d at 824 (citing United
States v. Anderson, 514 F.2d 583, 588 (7th Cir. 1975)).
Although this holding does not expressly state that there was
no “realistic likelihood” of vindictiveness, the
Kentucky Supreme Court's holding determined that there
was no such likelihood of prosecutorial vindictiveness.
See Slagle, 457 F.3d at 513 (noting that a state
court decision need not refer to U.S. Supreme Court cases as
long as the results and reasoning of the state court are
consistent with U.S. Supreme Court precedent) (citing
Early, 537 U.S. at 8).
Court finds that the Kentucky Supreme Court's holding did
not unreasonably apply U.S. Supreme Court precedent. “A
prosecutor should remain free before trial to exercise the
broad discretion entrusted to him to determine the extent of
the societal interest in prosecution. An initial decision
should not freeze future conduct.” Goodwin,
457 U.S. at 382. Haight's argument that the Commonwealth
possessed a reasonable likelihood of vindictiveness is based
solely on the fact that there was not a change of
circumstances between the first plea and the sentence sought
on remand to warrant the increased penalty. However, because
Haight's guilty plea was vacated in Haight I,
the Commonwealth was not bound by the original plea agreement
and retained discretion to seek any available sentence, just
as Haight was free to plead not guilty and take his case to
trial. See also United States v. Cooks, 52 F.3d 101,
106 (5th Cir. 1995) (“As there is no presumption of
prosecutorial vindictiveness attendant in the exercise of
admittedly discretionary actions, [the defendant's]
failure to offer any tangible evidence in support of his
vindictiveness claim dooms it to failure.”). See
also Goodwin, 457 U.S. at 384 (“[M]ere opportunity
for vindictiveness is insufficient . . . .”). As in
Cooks, Haight has presented no tangible evidence of
following vacation of the original plea agreement the
Commonwealth did not attempt to charge Haight with any crime
other than capital murder, the same crime charged in the
original indictment. See Jordan v. Epps, 756 F.3d
395, 406-07 (5th Cir. 2014) (holding that there was no
presumption of prosecutorial vindictiveness in the
prosecutor's refusal to make a plea agreement for a
sentence of life in prison for a second time, rather than
seek the death penalty, because the prosecutor did not
attempt to charge defendant with any crime other than the
original capital murder charge). Thus, the Commonwealth's
decision to seek death does not warrant a presumption of
these circumstances, Haight has not demonstrated that the
Kentucky Supreme Court's holding was an objectively
unreasonable application of Pearce, Wayte,
or Blackledge. Therefore, this claim for relief will
be denied. Yet, the Court does find that a certificate of
appealability should be issued because jurists of reason
could disagree as to the merits of this claim. Significantly,
the Ninth Circuit, sitting en banc, has held that “a
presumption of prosecutorial vindictiveness is
warranted” in a situation where the prosecutor asked
the court to impose a sentence other than death, but after
the defendant's successful appeal the prosecutor rebuffed
the plea offer and insisted on seeking the death penalty.
Adamson, 865 F.2d at 1018. This demonstrates that
jurists of reason could disagree, and in fact have disagreed,
as to whether a presumption of prosecutorial vindictiveness
should arise in the present context. Accordingly, a
certificate appealability as to Ground 2 will be issued.
Ground 3: Double Jeopardy Clause
Ground 3, Haight argues that the Fifth Amendment's Double
Jeopardy Clause barred his subsequent death sentence.
(Pet'r's Mem. Supp. 31-33; Pet'r's Mot. for
Summ. J. 18-35). Addressing Haight's double jeopardy
argument, the Kentucky Supreme Court explained that:
Appellant's double jeopardy claim has been reviewed and
determined to be without merit. The essence of this claim is
that upon the prior guilty plea and death sentence, jeopardy
attached. Because RCr 9.84 precluded imposition of the death
penalty, the argument goes, appellant was “implicitly
acquitted.” The error of the trial court was not the
type and kind which preclude re-prosecution. The conduct of
the trial court was ambiguous and misleading by virtue of a
desire to accommodate counsel for both sides. There was no
indication of malicious or deliberate misleading. The trial
court simply made an error which was corrected on appeal.
Double jeopardy principles do not preclude further
prosecution with all lawful punishments being available. In
Simpson v. Commonwealth, 759 S.W.2d 224, 228 (Ky.
1988), we answered appellant's double jeopardy claim as
It was appellant who moved the court to withdraw his guilty
plea and his confession made during the plea proceeding. Such
constitutes a waiver of his constitutional protection against
double jeopardy for the purpose of trial on the charge in the
Haight III, 938 S.W.2d at 252 (internal citations
omitted) (quoting Simpson, 759 S.W.2d at 228).
Magistrate Judge concluded that Haight III was
neither contrary to nor an unreasonable application of any
clearly established U.S. Supreme Court precedent relating to
the Double Jeopardy Clause. (R. & R. 51). Haight's
objection mostly states his general disagreement with
Haight III and the Magistrate Judge's findings.
See Cvijetinovic, 617 F.Supp.2d at 632 (“Near
verbatim regurgitation of the arguments made in earlier
filings are not true objections.” (citation omitted)).
In interjecting these same arguments, Haight argues that the
Magistrate Judge misconstrued his position. (Pet'r's
Obj. 15). Haight asserts that his position is not that the
Commonwealth should be completely barred from re-prosecution
of the guilt phase of his trial, but that the Double Jeopardy
Clause barred the Commonwealth from seeking the death penalty
after remand from Haight I. (Pet'r's Obj.
17). Specifically, Haight contends that while his voluntary
withdrawal of his guilty plea may have removed his
re-prosecution from jeopardy, the trial court's
“abuse of discretion in denying Haight's right
under [Kentucky Rule of Criminal Procedure
(“RCr”)] 9.84 to a jury at sentencing triggers
the protections of the Double Jeopardy Clause and bars
re-sentencing for death.” (Pet'r's Obj. 18).
Thus, Haight contends the Kentucky Supreme Court's
holding was an unreasonable application of United States
v. Jorn, 400 U.S. 470 (1971).
invoked the right to the original jury because “the
defendant has a significant interest in the decision whether
or not to take the case from the jury when circumstances
occur which might be thought to warrant a declaration of
mistrial.” Jorn, 400 U.S. at 485 (“When
one examines the circumstances surrounding the discharge of
this jury, it seems abundantly apparent that the trial judge
made no effort to exercise a sound discretion to assure that,
taking all the circumstances into account, there was a
manifest necessity for the sua sponte declaration of
this mistrial.” (citation omitted)). In the present
case, at the original trial the case was never taken from the
jury because no jury was ever sworn in. Since Jorn
involves the rights of a defendant in the context of a
mistrial after a jury is impaneled and does not address the
issue of the discretionary sentencing decision of a trial
judge where no jury was ever seated, Jorn is wholly
inapplicable here. Therefore, the Court holds that the
Kentucky Supreme Court's ruling was not an objectively
unreasonable application of Jorn.
as to Haight's argument that the Double Jeopardy Clause
applied to his sentencing, clearly established federal law
holds that this clause only pertains to sentencing
proceedings in limited scenarios. Haight has not shown that
the Double Jeopardy Clause applied to the sentencing
proceedings before the original trial court. The Fifth
Amendment's Double Jeopardy Clause provides that
“[n]o person shall . . . be subject for the same
offence to be twice put in jeopardy of life or limb . . .
.” U.S. Const. amend. V. The protections of the Double
Jeopardy Clause attach once a court accepts a defendant's
guilty plea. Ricketts v. Adamson, 483 U.S. 1, 8
(1987). Generally, “the Double Jeopardy Clause imposes
no absolute prohibition against the imposition of a harsher
sentence at retrial after a defendant has succeeded in having
his original conviction set aside.” Bullington v.
Missouri, 451 U.S. 430, 438 (1981) (citations omitted).
A narrow exception to this rule holds that the Double
Jeopardy Clause does apply to capital-sentencing proceedings
that “have the hallmarks of [a] trial on guilt or
innocence.” Id. at 438. “[A]lthough
sentencing proceedings ordinarily are governed by
discretionary judgments, the Double Jeopardy Clause applies
to any sentencing proceeding that explicitly
requires the jury to determine whether the prosecution
has proved its case.” Harrison v. Gillespie,
640 F.3d 888, 897 (9th Cir. 2011) (internal quotation marks
omitted) (quoting Bullington, 451 U.S. at 444).
“[T]he touchstone for double-jeopardy protection in
capital-sentencing proceedings is whether there has been an
acquittal.” Sattazahn v. Pennsylvania, 537
U.S. 101, 109 (2003) (internal quotation marks omitted)
(citation omitted). “Absent an ‘acquittal' in
which the factfinder concludes that the prosecution failed to
‘prove its case, ' the Double Jeopardy Clause
does not bar a retrial.” Harrison, 640 F.3d at
897 (internal quotation marks omitted) (quoting Poland v.
Arizona, 476 U.S. 147');">476 U.S. 147, 156-57 (1986)).
argument in this regard misses the mark. This scenario does
not fall within the exception to the general rule allowing
imposition of a harsher sentence upon retrial. First, the
trial court initially imposed a death sentence, the same
sentence subsequently imposed upon remand. Further, the
sentencing proceedings in the original trial court did not
“have the hallmarks of [a] trial on guilt or
innocence” because the sentencing decision was made by
the trial judge; no jury was ever impaneled.
Bullington, 451 U.S. at 439. See also
Harrison, 640 F.3d at 897 (rejecting the theory that the
Double Jeopardy Clause applied to a judge's discretionary
decision to impose a life sentence because “the
defendant's life sentence had been imposed by operation
of a statute rather than the jury's factual conclusion
that the state had not proven its case.” (citing
Sattazahn, 537 U.S. at 109-10)). Haight points out
that RCr 9.84 requires a jury to decide the appropriate
punishment in capital cases. There is no question that the
trial judge at Haight's sentencing did not impanel a
jury, but instead made the unilateral decision to sentence
Haight to death. Any error with this decision was corrected
in Haight I. Clearly, Haight did not initially go
through a trial-like process that was resolved in his favor
so as to invoke double-jeopardy protection.
is nothing to suggest that the state court decision was
contrary to or an objectively unreasonable application of
clearly established federal law to the facts of this case.
Accordingly, after conducting a de novo review of
the R&R, the Court holds that the R&R in regard to
Ground 3 is adopted and Haight's Objection is overruled.
The Magistrate Judge recommended a certificate of
appealability be issued as to Ground 3; however, the Court
believes that reasonable jurists could not disagree that the
protections against double jeopardy do not apply to the
present situation as Haight was not sentenced to an earlier,
lighter sentence by a jury with the “hallmarks of a
trial on guilt or innocence.” Bullington, 451
U.S. at 438.
Ground 4: Arbitrary, Capricious and Discriminatory Death
claims in Ground 4 of his Petition that his death sentence
was arbitrarily, capriciously, and discriminatorily applied
in violation of the Eighth Amendment. (Pet'r's Mem.
Supp. 33-35; Pet'r's Reply 11-24; Pet'r's
Mot. Summ. J. 18-35). The Haight III decision held
that the vacation of Haight's guilty plea in Haight
I remedied any arbitrary and capricious death sentence.
Haight III, 938 S.W.2d at 250-51. The Magistrate
Judge held that Haight III was not an unreasonable
application of clearly established federal law. (R. & R.
55). In Haight's Objection, he argues that the Magistrate
Judge focused on the imposition of the death sentence by the
original trial judge and ignored the argument that the
Commonwealth violated the Eighth Amendment by seeking the
death penalty arbitrarily after Haight's appeal was
successful in Haight I. (Pet'r's Obj.
18-19). In support, Haight cites to Godfrey v.
Georgia, 446 U.S. 420 (1980); Duncan v.
Louisiana, 391 U.S. 145, 156 (1968); and Wayte v.
United States, 470 U.S. 598 (1985).
has failed to show how the Kentucky Supreme Court
unreasonably applied any of the above-cited decisions of the
United States Supreme Court. As the Magistrate Judge noted,
reversal of the original conviction “wiped the slate
clean” and the Commonwealth was free to seek whatever
sentence it chose, just as Haight was free to plead not
guilty. Haight correctly notes that “the decision to
prosecute may not be deliberately based upon an unjustifiable
standard such as race, religion, or other arbitrary
classification”; however, Haight has not shown how the
Commonwealth's decision to seek the death penalty after
Haight I was based on any such classification.
Wayte, 470 U.S. at 608 (internal quotation marks
omitted) (quoting Bordenkircher, 434 U.S. at 364).
on the record before the state courts, there is nothing to
suggest that the state court decision was contrary to or an
objectively unreasonable application of clearly established
federal law to the facts of this case. Accordingly, the Court
finds Haight's Objection of no avail and after de
novo review adopts the Magistrate Judge's
recommendation to deny relief as to Ground 4. Further,
although contrary to the Magistrate Judge's
recommendation, the Court concludes that a certificate of
appealability is not warranted as to this ground for relief.
The Court does not find that reasonable jurists could debate
that Haight has failed to show a denial of any constitutional
right as he has provided no support for the argument that the
imposition of the death penalty was “based upon an
unjustifiable standard such as race, religion, or other
arbitrary classification . . . .” Wayte, 470
U.S. at 608 (internal quotation marks omitted) (quoting
Bordenkircher, 434 U.S. at 364).
Ground 33: Irrevocable Prejudice
Ground 33, Haight argues that the imposition of his capital
sentence is unconstitutional due to the irrevocable prejudice
that flowed from his plea of guilty in the initial
proceeding. (Pet'r's Mem. Supp. 26-47;
Pet'r's Reply 11-14; Pet'r's Mot. Summ. J.
18-35). The Magistrate Judge, in a lengthy analysis, found
that decisions in Haight I, Haight II, and
Haight III regarding irrevocable prejudice were not
contrary to or an unreasonable application of any clearly
established decision of the U.S. Supreme Court. (R. & R.
64). Moreover, the Magistrate Judge noted Haight's
failure to cite to any U.S. Supreme Court precedent which was
arguably applied unreasonably. (R. & R. 62). Haight's
Objection to this finding reflects mere disagreement with the
Magistrate Judge's conclusion. (Pet'r's Obj.
takes issue with the Magistrate Judge's ruling that the
passage of time and pretrial publicity did not cause Haight
irrevocable prejudice. (Pet'r's Obj. 20). In his
Objection, Haight avers Herrera v. Collins, 506 U.S.
390 (1993), and Sheppard v. Maxwell, 384 U.S. 333
(1966), support his instant claims; however, he does not
explain how these cases were unreasonably applied by the
Kentucky Supreme Court. (Pet'r's Obj. 20-21). Juror
bias caused by pre-trial publicity, specifically a newspaper
article, was explored in depth by the trial court during
voir dire and during an evidentiary
hearing. These findings were upheld in Haight III,
and Haight has not shown them to be objectively unreasonable
findings of fact. Haight III, 938 S.W.2d at 246.
Haight's Objection is overruled, and, based on this
Court's de novo review, the portion of the
R&R pertaining to Ground 33 is adopted. While the
Magistrate Judge recommended issuance of a certificate of
appealability, the Court concludes that reasonable jurists
could not debate the resolution of this ground for relief in
the complete absence of any evidence cited by Petitioner to
meet his burden to overcome the presumption of correctness
afforded to the state court's finding of no irrevocable
Ineffective Assistance of Counsel Claims
establish ineffective assistance of counsel, Haight must show
that his counsel provided deficient performance and such
deficient performance prejudiced his defense so as to render
the trial unfair and the result unreliable. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Under AEDPA, a
state court's ruling on ineffective assistance of counsel
claims will only be disturbed if it is an unreasonable
application of Strickland. Bell v. Cone,
535 U.S. 685, 693-94 (2002) (citation omitted). Focusing on
the performance component, the U.S. Supreme Court explained
“[w]hen a convicted defendant complains of the
ineffectiveness of counsel's assistance, the defendant
must show that counsel's representation fell below an
objective standard of reasonableness.”
Strickland, 466 U.S. at 687-88. The reviewing
court's scrutiny of counsel's performance is highly
deferential; indeed, “the court should recognize that
counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Id. at
90. The reviewing court must also not indulge in hindsight,
but must evaluate the reasonableness of counsel's
performance within the context of the circumstances at the
time of the alleged errors. Id. at 690; Cobb v.
Perini, 832 F.2d 342, 347 (6th Cir. 1987).
satisfy the prejudice prong of the Strickland test,
“[t]he defendant must show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. A “[p]etitioner
is not entitled to a presumption of prejudice unless it can
be said that his counsel ‘fail[ed] meaningfully to
oppose the prosecution's case.'” Lundgren
v. Mitchell, 440 F.3d 754, 775 (6th Cir. 2006) (quoting
Florida v. Nixon, 543 U.S. 175, 179 (2004)). Where
“one is left with pure speculation on whether the
outcome of the trial or the penalty phase could have been any
different, ” there is an insufficient showing of
prejudice. Baze v. Parker, 371 F.3d 310, 322 (6th
Cir. 2004) (citing McQueen v. Scroggy, 99 F.3d 1302,
1321 (6th Cir. 1996)).
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) (citations omitted). An “independent
and adequate state ground” will bar consideration of
those federal claims in a federal habeas corpus proceeding
that have been defaulted under state law, unless the default
is excused. Coleman v. Thompson, 501 U.S. 722, 753
(1991); Brown v. Allen, 344 U.S. 443, 486-87 (1953).
A default will be excused if the petitioner is able to
demonstrate cause for the default and prejudice resulting
therefrom or, alternatively, that manifest injustice will
result from the conviction of one who is factually innocent
if the claim is not addressed. Sutton v. Carpenter,
745 F.3d 787, 790-91 (6th Cir. 2014).
establish “cause, ” a petitioner must demonstrate
that something external to him impeded his efforts to comply
with the state's procedural rules. Coleman, 501
U.S. at 729-30. A petitioner can establish
“cause” by showing his counsel's failure to
raise the claim before the state court was an error of such
magnitude that it rendered counsel's performance
ineffective and in violation of the Sixth Amendment.
Murray v. Carrier, 477 U.S. 478, 488-89 (1986)).
Notably, in Coleman, the Supreme Court made the
unqualified pronouncement that ineffective assistance by
counsel during state post-conviction proceedings does not
establish “cause” for a procedural default
because there is no constitutional right to an attorney in
such proceedings. Coleman, 501 U.S. at 752-54
(citing Pennsylvania v. Finley, 481 U.S. 551
(1987)). Recently, however, the U.S. Supreme Court carved out
a limited equitable exception for claims of ineffective
assistance of trial counsel that could be raised for the
first time only in an initial state post-conviction
proceeding. See Martinez v. Ryan, 566 U.S. 1, 17
(2012); Trevino v. Thaler, 133 S.Ct. 1911, 1921
(2013). Under the U.S. Supreme Court's recent decisions
in Martinez and Trevino, “Kentucky
prisoners can, under certain circumstances, establish cause
for a procedural default of their IATC claims by showing that
they lacked effective assistance of counsel at their
initial-review collateral proceedings, ” such as RCr
11.42 proceedings. Woolbright v. Crews, 791 F.3d
628, 636 (6th Cir. 2015). However, “the holdings in
Martinez and Trevino ‘[do] not
concern attorney errors in other kinds of proceedings,
including appeals from initial-review collateral proceedings
. . . .'” Id. at 636 (alteration in
original) (quoting Martinez, 566 U.S. at 16).
establish prejudice, a habeas petitioner must demonstrate
“‘actual prejudice' resulting from the errors
of which he complains.” United States v.
Frady, 456 U.S. 152, 168 (1982). A petitioner must show
not “that the errors at his trial created a possibility
of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire trial with
error of constitutional dimensions.” Id. at
Ground 5: Failure to Strike Juror Gaugh for
argues in Ground 5 that he received ineffective assistance of
trial counsel when his attorneys failed to move to strike for
cause juror Gaugh after this juror stated that he would not
give serious consideration to Haight's mitigation
evidence of his deprived family background. (Pet'r's
Mem. Supp. 47-85; Pet'r's Reply 142; Pet'r's
Mot. Summ. J. 6-17; Pet'r's Supp. Obj., DN 177).
Haight IV held that Haight's trial counsel's
decision not to strike Gaugh for cause was legitimate trial
strategy, not ineffective assistance. Haight IV, 41
S.W.3d at 446. The Magistrate Judge also concluded that
Haight's counsel's decision to not strike Gaugh for
cause was sound trial strategy and that Gaugh was not an
actually biased juror. (R. & R. 98-114). Accordingly, the
Magistrate Judge recommended denial of Haight's claim for
relief under Ground 5 because the holding of the Kentucky
Supreme Court was not an unreasonable application of
Strickland. (R. & R. 114).
raises three issues as to the Magistrate Judge's
conclusions. (Pet'r's Obj. 29). First, Haight argues
that the Magistrate Judge overlooked this Court's order
holding that there could be no tactical or strategic reason
for counsel's refusal to strike a biased juror.
(Pet'r's Obj. 29). This Court previously stated that
“the decision whether to seat a biased juror cannot be
a discretionary or strategic decision.” (Mem. Op. 8-9,
DN 85 (internal quotation marks omitted) (quoting Miller
v. Webb, 385 F.3d 666, 675-76 (6th Cir. 2004))). Haight
argues that the R&R's explanation of Haight's
trial counsel's possible tactical strategies ignores this
Court's prior order because Gaugh was biased as a matter
of law. (Pet'r's Obj. 29). The Court finds that the
Magistrate Judge did not err in reviewing Haight's trial
counsel's performance, as the Magistrate Judge further
concluded that Gaugh was not an actually biased juror. (R.
& R. 112). As the Magistrate Judge explained, the Sixth
Circuit has held that actual bias is “the existence of
a state of mind that leads to an inference that the person
will not act with entire impartiality.” (R. & R.
107 (quoting Miller, 385 F.3d at 673)). The
Magistrate Judge found that although Gaugh indicated that he
would not consider evidence of Haight's deprived
childhood and family background, Gaugh was not actually
biased because he had no relationship with the victims, did
not expressly state that he could not be fair, indicated that
he would fully consider Haight's defenses of alcoholism
and extreme emotional disturbance, and acknowledged that he
had some sympathy for Haight. (R. & R. 113).
relies on Morgan v. Illinois, 504 U.S. 719 (1992),
in support of his argument that Gaugh was actually biased
because of his indication during voir dire that he
would not consider a certain type of mitigating evidence.
(Pet'r's Obj. 33). In Morgan, the U.S.
Supreme Court stated that “[a]ny juror to whom
mitigating factors are likewise irrelevant should be
disqualified for cause, for that juror has formed an opinion
concerning the merits of the case without basis in the
evidence developed at trial.” Morgan, 504 U.S.
at 739. The primary concern in Morgan was a juror
who indicated he would automatically recommend death
regardless of any mitigating evidence. Id.
Here, Gaugh's statement that he would not consider
one type of mitigating evidence does not raise these
same concerns, especially where Gaugh further indicated that
he would consider Haight's other mitigating evidence.
See Lagrone v. Cockrell, No. CIV.A.4:99-CV-0521-G,
2002 WL 1968246, at *19 (N.D. Tex. Aug. 19, 2002) (“[A]
prospective juror's statement that he does not consider a
certain type of evidence as mitigating does not subject him
to a challenge for cause because it is not evidence that he
will be unable to perform his duties as a juror.”).
Further, Haight has provided no authority for the proposition
that a juror is biased as a matter of law because he will not
consider one discrete aspect of mitigating evidence.
Therefore, because this Court agrees with the Magistrate
Judge that Gaugh was not biased as a matter of law, trial
counsel's decision to not strike Gaugh for cause did not
amount to ineffective assistance of counsel under
also takes issue with the Magistrate Judge's examination
of Haight's trial counsel's possible tactical
strategy. (Pet'r's Obj. 36-41). When asked by the
trial court to provide a reason why he chose to not move to
strike Gaugh for cause, Haight's trial counsel responded
only that it was a “tactical decision.” (R. &
R. 99 (citation omitted)). The Magistrate Judge concluded
that Haight's counsel's explicitly described
“tactical decision” in not striking Gaugh for
cause was objectively reasonable because Gaugh stated that he
would consider an extreme emotional disturbance defense,
would consider Haight's evidence that he was under the
influence of alcohol at the time of the crime, and because
Gaugh is an African-American. (R. & R. 109-11). Defense
counsel considered Gaugh to be a favorable juror in light of
his belief that Gaugh's race meant he was statistically
less likely to impose the death penalty. (R. & R.
109-11). Haight contends that the Magistrate Judge's
proffered strategies are speculative and not supported by the
AEDPA's deferential standard of review, the question is
whether there is “any reasonable argument that counsel
satisfied Strickland's deferential
standard.” Harrington, 562 U.S. at 105.
“Strickland specifically commands that a court
‘must indulge [the] strong presumption' that
counsel ‘made all significant decisions in the exercise
of reasonable professional judgment.'” Cullen
v. Pinholster, 563 U.S. 170, 196 (2011) (quoting
Strickland, 466 U.S. at 689-90). A court must
“affirmatively entertain the range of possible”
reasons counsel may have had for proceeding as he or she did.
Id. Accordingly, the Magistrate Judge properly
pointed to parts of the state court record demonstrating
defense counsel's decision not to challenge Gaugh was
tactical. (R. & R. 109-11); see Pinholster, 563
U.S. at 191 (presuming that counsel's actions were a
matter of trial strategy “[r]ather than . . .
neglect” and noting statements by counsel in
state-court record “support[ing] the idea that
[petitioner's] counsel acted strategically . . .
.”). The Magistrate Judge noted that although
“counsel may have declined to put on the record the
basis for his choice, Gaugh's other statements during
voir dire clearly reveal the basis for counsel's
conscious election not to challenge Gaugh for cause.”
(R. & R. 109). The Magistrate Judge cited statements by
Gaugh indicating that he would consider the entire range of
penalties for intentional aggravated murder, that he would
consider Haight's extreme emotional disturbance defense,
and that he would give serious consideration to evidence
indicating that Haight acted under the influence of alcohol
at the time of the crime. (R. & R. 109-10 (citation
omitted)). What Haight labels as the Magistrate Judge's
“speculation” in fact represents the exact type
of analysis the U.S. Supreme Court has instructed courts to
conduct in reviewing petitions for writs of habeas corpus.
Therefore, the Court finds Haight's second argument lacks
also objects to the Magistrate Judge's conclusion that
Haight's trial counsel's tactical strategy was
objectively reasonable and did not amount to deficient
performance. (Pet'r's Obj. 29). As stated above, it
is Haight's burden to overcome the presumption of
competent representation. Strickland, 466 U.S. at
689. Aside from conclusory assertions that his counsel's
strategy during voir dire was objectively
unreasonable, Haight provides no elaboration.
(Pet'r's Obj. 29, 39). Accordingly, the Court
concludes that he has not met his burden.
Strickland, 466 U.S. at 688.
the Court must address the arguments put forth in
Haight's supplement to his Objection. Haight cites to
Shelton v. United States, 800 F.3d 292 (6th Cir.
2015), for the proposition that the Magistrate Judge should
have provided fair notice and an opportunity to brief the
issue of whether Haight's trial counsel decided not to
strike Gaugh because Gaugh said he would consider an extreme
emotional disturbance defense and because he is an
African-American. (Pet'r's Supp. Obj. 3). In
Shelton, the Sixth Circuit held that “[b]efore
acting on its own initiative, [a] district court ‘must
accord the parties fair notice and an opportunity to present
their positions.'” Shelton, 800 F.3d at
294 (quoting Day v. McDonough, 547 U.S. 198, 210
(2006)). Haight contends that Shelton applies to his
case because the R&R was “the first, and only, time
that the explanations for trial counsel's actions had
been proposed by the Magistrate Judge.”
(Pet'r's Supp. Obj. 3). The Court disagrees. In
Shelton, the Sixth Circuit held that before sua
sponte dismissing a motion to vacate as untimely, the
parties should be allowed to present their positions. The
issue of whether Haight's counsel was deficient was
certainly not raised sua sponte by the Magistrate
Judge. Furthermore, Haight has been provided the opportunity
to file his Objection to the R&R, which constitutes his
chance to be heard by this Court. See United States v.
Renfro, No. CR 08-93-ART-CJS-2, 2017 WL 1416869, at *1
n.3 (E.D. Ky. Mar. 22, 2017), report and recommendation
adopted, No. CR 08-93-ART-CJS-(2), 2017 WL 1429192 (E.D.
Ky. Apr. 19, 2017) (citing Shelton, 800 F.3d at
294-96). Accordingly, the Court rejects Haight's argument
that he should have been allowed an opportunity to further
brief this issue, as Haight was afforded the opportunity to
file his Objection, reply to the response to the Objection,
and provided supplemental authority all regarding this issue.
conclusion, the Court finds after de novo review
that the Magistrate Judge did not err when he concluded that
the holding of the Kentucky Supreme Court was not an
unreasonable application of Strickland. Therefore,
the Court adopts the R&R as to Ground 5 and overrules
Haight's Objection thereto. Further, despite the
Magistrate Judge's recommendation, a certificate of
appealability is not warranted as to this claim as no
reasonable jurists could debate that Haight has utterly
failed to show that trial counsel's performance was
objectively unreasonable as to juror Gaugh. Slack,
529 U.S. at 484.
Ground 8: Peremptory Strikes for Jurors
Ground 8, Haight argues that he received ineffective
assistance of counsel when his trial attorneys failed to
honor his request to remove jurors Gaugh, Helton, and Nichols
from the jury panel by use of peremptory strikes.
(Pet'r's Mem. Supp. 47-85; Pet'r's Reply 142;
Pet'r's Mot. Summ. J. 6-17). Haight IV
rejected Haight's ineffective assistance of counsel claim
regarding peremptory challenges. Haight IV, 41
S.W.3d at 443-44 (citation omitted). The court noted that
Haight received the full number of challenges to which he was
entitled and could not show that he was prejudiced because
“[t]here is no reasonable probability that the result
of his trial would have been any different under the
standards provided in Strickland.”
Id. at 444. Haight IV also emphasized that
there was “no constitutional right to peremptory
challenges.” Id. (citation omitted). The
Magistrate Judge recommended denial of relief because the
Kentucky Supreme Court's holding was not an unreasonable
application of or contrary to established U.S. Supreme Court
precedent. (R. & R. 114-28). The Magistrate Judge
explained that trial counsel's failure to honor
Haight's alleged request to strike three jurors was not a
“structural error” under Kentucky law that
amounted to a presumption of prejudice. (R. & R. 120).
Further, the Magistrate Judge noted that nothing in the
record established that Haight was in any way prejudiced by
his counsel's failure to strike the three jurors. (R.
& R. 123-28).
raises two issues as to the Magistrate Judge's
recommendation. First, Haight objects to the Magistrate
Judge's reliance on Rivera v. Illinois, 556 U.S.
148 (2009), because “Rivera did not address an
issue of ineffective assistance of counsel.”
(Pet'r's Obj. 44). The Magistrate Judge relied on
Rivera for the principle that Haight's
counsel's alleged failure to strike jurors is not a
structural error because there is no freestanding federal
constitutional right to peremptory challenges. (R. & R.
120 (citing Rivera, 556 U.S. at 151)). Haight argues
that the Magistrate Judge was misconstruing the claim, as the
U.S. Supreme Court in Rivera did not address the
issue of ineffective assistance of counsel. The Court finds
Haight's argument is without merit. The Magistrate Judge
did not misconstrue the claim, but merely used
Rivera to support the conclusion that Haight's
counsel's performance was not deficient. See
Strickland, 466 U.S. at 487.
Haight objects to the Magistrate Judge's finding that
Haight cannot demonstrate prejudice for his
Strickland claim to prevail. This argument focuses
on Gaugh because, according to Haight, this juror was biased
as a matter of law and thus prejudice is presumed.
(Pet'r's Obj. 44). The Magistrate Judge noted that
Haight III adopted the findings of the trial court
and held that there was no information to cause the court to
believe that the jurors “were in any way partial in
their deliberations or their final conclusions.” (R.
& R. 124 (quoting Haight III, 938 S.W.2d at
247)). The Magistrate Judge then conducted a review of the
record and concluded that Gaugh's statements of expressed
skepticism of mitigation evidence during voir dire
were equivocal and, to the contrary, Gaugh actually indicated
that he felt somewhat sympathetic to Haight. (R. & R.
124). The Court disagrees with Haight's assessment that
the Magistrate Judge is “simply and demonstrably
incorrect.” (Pet'r's Obj. 45). Nothing in
Haight's Objection influences this Court to disturb the
Kentucky Supreme Court's factual holding that Gaugh was
not biased as a matter of law. Furthermore, although Haight
does not specifically object to the Magistrate Judge's
conclusion that Helton and Nichols were not biased as a
matter of law, the Court conducted de novo review
and finds no error in the Magistrate Judge's analysis.
Consequently, the Court agrees with the Magistrate Judge that
Haight has not demonstrated that he was prejudiced in any way
by his counsel's failure to strike these three particular
jurors. See Strickland, 466 U.S. at 487.
the Court adopts the Magistrate Judge's recommendation to
deny Haight relief under this claim because Haight
IV was not an unreasonable application of
Strickland. Thus, the Court overrules Haight's
Objection as to Ground 8. The Court further concludes that
reasonable jurists could not debate whether the petition
should have been resolved in a different manner with respect
to the use of peremptory strikes by trial counsel.
Ground 9: Failure to Question Jurors, Raise Issues, and
Exercise Challenges for
Ground 9, Haight presents a variety of claims all involving
the ineffective assistance of trial counsel during jury
selection. (Pet'r's Mem. Supp. 61-62; Pet'r's
Reply 16-17). The claims are related to the failure of
Haight's trial counsel to move the court to strike for
cause jurors Kaiser, Helton, Karnes, and Cunagin for various
reasons, and misadvising two jurors, Larch and Karnes, on the
nature of the extreme emotional disturbance defense.
(Pet'r's Mem. Supp. 61-62; Pet'r's Reply
16-17). The Magistrate Judge fully addressed the nuances of
each claim made by Haight, and Haight III and
Haight IV's rejection of Haight's
ineffective assistance of counsel claims relating to jury
selection. (R. & R. 128-29). The Magistrate Judge
recommended that this Court deny relief under Ground 9 after
concluding that the Kentucky Supreme Court did not
unreasonably apply Strickland in its analysis of
these claims. (R. & R. 128-38).
Objection does not set out any specific objections to the
Magistrate Judge's conclusion. (Pet'r's Obj.
46-49). Haight instead reiterates his arguments as to why
trial counsel's performance during voir dire
amounted to ineffective assistance of counsel. The Magistrate
Judge conducted a detailed analysis and concluded that
Haight's counsel was not ineffective, and thus, the
Kentucky Supreme Court did not unreasonably apply
Strickland. The Court finds no errors in this
analysis. Accordingly, the R&R pertaining to Ground 9 is
adopted and Haight's Objection thereto is overruled. The
Magistrate Judge recommended the issuance of a certificate of
appealability as to Ground 9. However, the Court does not
find Haight has made a substantial showing of a denial of his
Sixth Amendment right to effective assistance of counsel that
would entitle him to a certificate of appealability on this
ground. See Slack, 529 U.S. at 484.
Ground 6: Introduction of the Jeanne Omer
Haight's trial, the Commonwealth introduced a letter of a
victim's sister, Jeanne Omer. Haight argues in Ground 6
that he received ineffective assistance of counsel at trial
when his attorney did not move to admit Haight's
responsive letter in which he expressed remorse for his
crimes. (Pet'r's Mem. Supp. 47-85; Pet'r's
Reply 142; Pet'r's Mot. Summ. J. 6-17). On this
point, Haight IV held:
Haight argues that defense counsel was ineffective when he
did not introduce into mitigation evidence a letter which
Haight had written to one victim's family. In the letter,
Haight admitted committing the murders, expressed sorrow at
having caused so much pain and suffering, and further
expressed a desire to die for having done so. Defense counsel
clearly stated a desire not to reemphasize Haight's guilt
phase testimony to the jury when it considered mitigating
evidence in the penalty phase. The letter stated in part,
“If you think I should pay with my life, then I'd
have to agree with you . . . .” Defense counsel was not
ineffective in not introducing the letter into mitigation.
Haight IV, 41 S.W.3d at 448. The Magistrate Judge
concluded that Haight IV was not an unreasonable
application of Strickland and recommended denial of
Haight's request for relief under Ground 6. (R. & R.
Objection offers little new argument, and in fact, much of
this portion of the Objection is copied verbatim from his
Reply to the Response to the Petition. (Pet'r's Reply
18-20; Pet'r's Obj. 51-54). See Howard v.
Sec'y of Health & Human Servs., 932 F.2d 505,
509 (6th Cir. 1991) (noting that a reexamination of the exact
same argument that was presented to the magistrate judge
without specific objections “wastes judicial resources
rather than saving them, and runs contrary to the purposes of
the Magistrates Act.”). Haight's objection mainly
offers additional authority for his argument that remorse
(which he contends was expressed in the letter) is important
mitigation evidence. (Pet'r's Obj. 51-54).
posits that because of this “compelling mitigation
evidence, ” his counsel's strategy during the
penalty phase cannot be considered “objectively
reasonable strategy.” (Pet'r's Obj. 55). As the
Kentucky Supreme Court noted, however, counsel's strategy
during the penalty phase was to avoid reemphasizing
Haight's guilt-phase testimony. Haight IV, 41
S.W.3d at 448. The letter in which Haight admitted guilt
would have done just that, not to mention that Haight's
letter expressed support for giving him a death sentence.
Id. See also Carter v. Mitchell, 443 F.3d
517-32 (6th Cir. 2006) (holding that where evidence of a
defendant's background would likely have made him look
even worse to the jury, counsel's strategic decision to
limit testimony about that background was “not even
deficient performance, let alone prejudicial . . . .”
(internal quotation marks omitted) (quoting Moore v.
Parker, 425 F.3d 250, 254 (6th Cir. 2005))).
Sixth Circuit has emphasized that trial counsel's
tactical decisions are particularly difficult to attack and a
habeas petitioner's challenge to such decisions must
overcome a presumption that the challenged action might be
considered sound trial strategy. O'Hara v.
Wigginton, 24 F.3d 823, 828 (6th Cir. 1994); Darden
v. Wainwright, 477 U.S. 168, 185-87 (1986). Haight's
objection does little to explain-beyond conclusory
assertions-how Haight IV is an unreasonable
application of Strickland, especially when the
letter in question not only re-emphasized guilt but also
invited imposition of the death penalty. Therefore, after
reviewing the R&R, the Court finds no error and adopts
the Magistrate Judge's recommendation that Haight's
claim for relief under Ground 6 be denied. Haight's
Objection thereto is overruled. Although the Magistrate Judge
recommended a certificate of appealability be issued as to
Ground 6, the Court concludes that reasonable jurists could
not find the assessment of this constitutional claim
debatable or wrong.
Ground 16: Introduction of the 1986 Plea
Ground 16, Haight argues that he received ineffective
assistance of counsel when his trial attorney did not
introduce into evidence during the penalty phase the 1986
plea agreement by which the Commonwealth offered Haight a
sentence of life imprisonment in exchange for his guilty plea
to the murder and robbery charges. (Pet'r's Mem.
Supp. 62-64; Pet'r's Reply 17-20). The Haight
IV decision noted that there was a “split of
authority on the issue” of whether a criminal defendant
has a right to introduce evidence of a withdrawn guilty plea
as mitigation evidence in a capital trial. Haight
IV, 41 S.W.3d at 448. Ultimately, the court held that
under the Strickland standard it was “at a
loss to see how failure to move to admit evidence-the
admissibility of which is still an open question-can ever
sink below sufficient performance into deficiency.”
Id. Accordingly, the Kentucky Supreme Court
concluded that “while the failure to advance an
established legal theory may result in ineffective assistance
of counsel under Strickland, the failure to advance
a novel theory never will.” Id. The Magistrate
Judge concluded that this was not an unreasonable application
of Strickland and recommended denial of Haight's
claim for relief on this ground. (R. & R. 141-44).
Further, the Magistrate Judge noted that introduction of the
plea agreement would have been a “double-edged
sword” for Haight because while it demonstrated that
one state prosecutor found a life sentence to be appropriate,
it likewise showed that “a state trial court  firmly
believed that death was the only fair punishment . . .
.” (R. & R. 143).
argues that the Haight IV's holding was
unreasonable because “there was nothing
‘novel' about the claim that a [s]tate's offer
of a sentence of less than death was mitigating evidence at
the time of [Haight's] capital trial. (Pet'r's
Obj. 57). Haight maintains that Lockett v. Ohio, 438
U.S. 586 (1978); Eddings v. Oklahoma, 455 U.S. 104
(1982); and Woodson v. North Carolina, 428 U.S. 280
(1976), clearly establish this right. (Pet'r's Obj.
56). Lockett, Eddings, and Woodson
hold that a capital defendant has a constitutional right to
present mitigation evidence relevant to his or her
character, record, or circumstances of
the case. Lockett, 438 U.S. at 604 n.12;
Eddings, 455 U.S. at 112; Woodson, 428 U.S.
at 304-05. Therefore, consistent with these clearly
established legal principles, Haight argues that he had the
right to introduce his plea agreement as relevant mitigation
evidence and his attorney was ineffective in failing to do
Sixth Circuit has previously rejected the argument that
Lockett, Eddings, and
Woodson's clearly established legal principles
create a right to introduce a plea agreement as mitigation
evidence. In Owens v. Guida, 549 F.3d 399 (6th Cir.
2008), the petitioner cited Lockett for the argument
that he had a right to present a negotiated plea agreement as
mitigation evidence. Id. at 421-22. The court
emphasized that while Lockett requires the admission
of relevant mitigation evidence, the U.S. Supreme
Court held that “lower courts could continue to exclude
[any] irrelevant evidence not bearing on the defendant's
character, prior record, or the circumstances of the
offense.” Id. at 419 (citing Lockett,
438 U.S. at 604 n.12). The court noted that all of the other
decisions addressing whether the Constitution required the
admission of failed plea negotiations as relevant mitigation
evidence held that the Constitution did not prevent the
exclusion of such evidence. Id. at 421-22. The court
then explained that “[a] rule of federal law cannot be
clearly established when it has been rejected by every court
that has been asked to adopt the rule, and a state court does
not unreasonably apply clearly established federal law when
it rejects an argument that has been unanimously rejected by
other courts.” Id. at 422. Accordingly, the
Sixth Circuit held that the state court did not unreasonably
apply or violate clearly established federal law in holding
that a petitioner was not entitled to present evidence that
the state had offered, and the defendant had accepted, an
offer of a life sentence in exchange for a guilty plea.
Id. See also Wright v. Bell, 619 F.3d 586,
600 (6th Cir. 2010) (“Lockett and
Eddings stand for the important principle that a
capital defendant must be able to present any relevant
mitigating evidence in order to allow the sentencing court to
conduct an individualized sentencing, but do not imply that
evidence of a state's plea offer is relevant mitigating
evidence.”); Riley v. Cockrell, 339 F.3d 308,
317-19 (5th Cir. 2003) (denying a certificate of
appealability to a death row inmate who wanted to argue that
his trial counsel was ineffective for not arguing that the
inmate's guilty plea constituted mitigating evidence);
Hall v. Luebbers, 341 F.3d 706, 717 (8th Cir. 2003)
(rejecting the capital defendant's claim that “the
trial court violated his Eighth and Fourteenth Amendment
rights by excluding evidence of Hall's willingness to
plead guilty . . . .”). Therefore, the Court concludes
that the notion that a plea agreement is relevant admissible
mitigation evidence is not so “clearly
established” as Haight contends and he has failed to
establish that his counsel was ineffective for failing to
offer the plea agreement into evidence.
Haight's Objection is not well taken. As the Magistrate
Judge pointed out, Kentucky law regarding the admission of a
withdrawn plea agreement at the time of Haight's trial
and sentencing was not clear and “[a] strong argument
existed that KRE 408 worked to prohibit the introduction of
just such a document.” (R. & R. 143). Thus, the
Court agrees with the R&R that Haight IV was not
an objectively unreasonable application of
Strickland, as “Haight's counsel could not
be faulted under the Sixth Amendment for his decision not to
introduce the plea agreement.” (R. & R. 143).
Accordingly, the R&R as to Ground 16 is adopted and
Haight's Objection thereto is overruled.
the Court holds that a certificate of appealability is
warranted as jurists of reason could disagree as to the
merits of this claim. Significantly, the Ninth Circuit has
previously held that evidence of a plea offer from the
prosecution was mitigating because it showed that the
prosecution thought the imposition of the death penalty was
not clear-cut. Summerlin v. Schriro, 427 F.3d 623,
631-40 (9th Cir. 2005). This reflects that jurists of reason
could disagree, and in fact have disagreed, as to whether a
plea agreement could have been offered as mitigating
evidence. Accordingly, a certificate of appealability as to
Ground 16 will be granted.
Ground 13: Failure to Adequately Investigate and Present
Ground 13, Haight argues that the failure of counsel to
perform an adequate investigation as to his mental status and
psychological problems and to obtain experts in view of the
information available to them of a 1974 psychological report
suggesting the possibility of organic brain damage plainly
constituted ineffective assistance of counsel under
Rompilla v. Beard, 545 U.S. 374 (2005); Wiggins
v. Smith, 539 U.S. 510 (2003); and Jacobs v.
Horn, 395 F.3d 92 (3rd Cir. 2005). (Pet'r's Mem.
Supp. 67-80; Pet'r's Reply 24-41). Haight IV
rejected this ineffective ...