Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Haight v. White

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

August 18, 2017

RANDY HAIGHT PETITIONER
v.
RANDY WHITE, Warden RESPONDENT

          MEMORANDUM OPINION AND ORDER

          Greg N. Stivers, United States District Judge.

         This 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.

         I. BACKGROUND

         The 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).

         II. JURISDICTION

         This 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).

         III. STANDARD OF REVIEW

         A. The Antiterrorism and Effective Death Penalty Act of 1996 Standard

         Under 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 relief.”).

         Under 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.

         It is 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)).

         When “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).

         Under 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).

         B. Summary Judgment Standard

         Fed. R. 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, 587 (1986)).

         At this 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).

         C. Objection to the Magistrate Judge's R&R

         When an 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 at 380).

         New 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).

         D. Certificate of Appealability

         Under 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 (1983)).

         Where a 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.” Id.

         IV. DISCUSSION

         In his 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.

         A. Plea Agreement Issues

         1.Ground 1:Due Process and Specific Enforcement of the Plea Agreement

         In 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).[1] 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) (Haight I)).[2]

         Central 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.[3] 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 88.

         In the 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).

         Haight 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.]).

         The 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.

         Moreover, 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)).

         Accordingly, 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 guilty plea.

         2. Ground 2: Vindictive Prosecution

         In 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 outcome.

         While a 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 (1984).[4]

         The 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).

         This 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.[5] 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 prosecutorial vindictiveness.

         Moreover, 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 vindictiveness.

         Under 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.

         3. Ground 3: Double Jeopardy Clause

         In 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 follows:
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 indictment.

Haight III, 938 S.W.2d at 252 (internal citations omitted) (quoting Simpson, 759 S.W.2d at 228).

         The 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).

         Jorn 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.

         Further, 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)).

         Haight's 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.[6] 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.

         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, 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.

         4. Ground 4: Arbitrary, Capricious and Discriminatory Death Sentence

         Haight 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).

         Haight 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).

         Based 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).

         5. Ground 33: Irrevocable Prejudice

         In 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. 20-23).

         Haight 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.[7] (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.

         Accordingly, 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 prejudice.

         B. Ineffective Assistance of Counsel Claims

         To 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).

         To 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)).

         “A petitioner procedurally defaults claims for habeas relief if the petitioner has not presented those claims to the state courts in accordance with the state's procedural rules.” Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000) (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).

         To 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).

         To 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 170.

         1. Ground 5: Failure to Strike Juror Gaugh for Cause

         Haight 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).

         Haight 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).

         Haight 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 Strickland.

         Haight 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 record.

         Under 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 merit.

         Haight 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.

         Finally, 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.

         In 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.

         2. Ground 8: Peremptory Strikes for Jurors

         In 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).

         Haight 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.

         Next, 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.

         Therefore, 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.

         3. Ground 9: Failure to Question Jurors, Raise Issues, and Exercise Challenges for Cause

         In 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).

         Haight's 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.

         4. Ground 6: Introduction of the Jeanne Omer Letter

         During 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. 139-41).

         Haight's 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).

         Haight 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))).

         The 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.

         5. Ground 16: Introduction of the 1986 Plea Agreement

         In 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).

         Haight 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 so.

         The 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.

         Consequently, 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.

         Further, 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.

         6. Ground 13: Failure to Adequately Investigate and Present Mitigation Evidence

         In 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.