United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
J. Hale, United States District Court Judge
Cortez Jackson has filed a pro se petition for writ
of habeas corpus under 28 U.S.C. § 2254, alleging
various constitutional violations. (Docket No. 1) Respondent
Kathy Litteral opposes Jackson's petition. (D.N. 15) The
Court referred this matter to Magistrate Judge Dave Whalin,
who issued a report and recommendation on May 24, 2017. (D.N.
29) Judge Whalin recommended that the Court deny
Jackson's petition. (Id., PageID # 824) He also
concluded that Jackson was not entitled to a Certificate of
Appealability pursuant to 28 U.S.C. § 2253(c)(1)(B).
(Id., PageID # 823-24) After the Court granted
Jackson additional time (D.N. 33), he filed objections to
Judge Whalin's report on July 14, 2017. (D.N. 34) For the
reasons set forth below, Jackson's objections will be
overruled. After careful consideration, the Court will adopt
in full Judge Whalin's Findings of Fact, Conclusions of
Law, and Recommendation.
2007, Jackson was convicted by a jury in Jefferson County,
Kentucky, of the murder of Richard Lee Washington.
(See D.N. 15-16) The conviction follows from events
that occurred in Louisville, Kentucky, on May 16, 2006. That
evening, Jackson, D'Angelo Scott, Dora Ditto, and
Ditto's boyfriend, Richard Lee Washington, drove together
to a convenience store to collect money from an individual
indebted to Jackson. See Jackson v. Commonwealth
(Jackson I), No. 2007-SC-000392-MR, 2010 WL 252244,
at *1 (Ky. Jan. 21, 2010). While at the convenience store,
Jackson and Washington began arguing and continued to do so
as the group reached the apartment of Jackson's
girlfriend, Dominique Rudolph. Id.
to Jackson, upon exiting the vehicle, Ditto removed a black
handgun from the trunk and handed it to Washington.
Id. Washington then approached Jackson and
threatened to kill him. Id. Shoving ensued, and
eventually the two men struggled for possession of the
handgun. Id. Jackson claims that during the
entanglement, the gun fired while in Washington's right
hand and struck Washington in the back of the head.
version of events differs markedly. Ditto explained that upon
exiting the vehicle, Jackson asked Washington for another
ride, which Washington refused. Id. at *2. Jackson
then hit Washington in the head with a handgun and told him
he “ought to kill him.” Id. Ditto
asserted that Jackson proceeded to strike Washington again
with the gun, causing it to fire and kill Washington.
Id. Scott testified similarly, with one notable
exception. He testified that although he heard the gun fire,
he did not recall seeing either man with a firearm earlier
that night. Id.
are likewise differing versions as to the subsequent events.
According to Jackson, he ran to his girlfriend Rudolph's
apartment immediately after the altercation. Id.
Jackson asserts that he fell asleep there and did not wake or
leave the apartment for thirty-six hours. Id. Ditto,
on the other hand, stated that Jackson immediately ran from
the scene with the gun still in his possession. Id.
Scott testified that he too went to Rudolph's apartment
following the altercation but that Jackson arrived there
sometime later in the night. Id. At trial, the state
also presented the testimony of Amber Baker, Jackson's
ex-girlfriend. See Jackson I, 2010 WL 252244, at *2.
Baker testified that Jackson arrived at her apartment on the
night in question looking scared and watching out her screen
door. Baker stated that Jackson continued doing so for twenty
minutes before leaving. Id.
Jackson's arrest and indictment by a grand jury, a jury
found Jackson guilty of murdering Washington under Ky. Rev.
Stat. § 507.020. (See D.N. 15-16) Jackson
timely appealed his conviction, raising ten allegations of
error on appeal. (See D.N. 15-4) In an opinion
issued January 21, 2010, the Supreme Court of Kentucky
affirmed Jackson's conviction. Jackson I, 2010
WL 252244, at *13.
then filed a pro se collateral attack pursuant to
Kentucky Rule of Criminal Procedure 11.42 in the Jefferson
Circuit Court, asserting seven claims of ineffective
assistance of counsel and a claim of cumulative error. (D.N.
15-8; D.N. 15-9) When Jackson's appointed counsel
declined to supplement Jackson's motion, Jackson filed a
supplemental pro se motion pursuant to Rule 11.42.
There, Jackson raised three additional grounds of ineffective
assistance of counsel. (See 15-1, PageID # 137) The
Jefferson Circuit Court held an evidentiary hearing and
ultimately dismissed Jackson's claims. (D.N. 15-8, PageID
# 387-97) Jackson appealed five of his claims to the Kentucky
Court of Appeals, which affirmed the state trial court's
decision. See Jackson v. Commonwealth (Jackson
II), No. 2013-CA-001727-MR, 2015 WL 1648058 (Ky. Ct.
App. Apr. 10, 2015). Thereafter, the Kentucky Supreme Court
denied Jackson's request for discretionary review.
(See D.N. 15-10, PageID # 461)
has now filed a petition for habeas corpus relief in this
Court, raising the ten claims from his direct appeal, the
five claims of ineffective assistance of counsel from his
Rule 11.42 motion, and a claim of cumulative error.
(See D.N. 1) On May 24, 2017, Magistrate Judge Dave
Whalin issued his report and recommendation. (D.N. 29).
Jackson timely filed objections to Judge Whalin's
findings. (D.N. 34) Judge Whalin based his conclusion on
sixteen separate findings (Grounds 1-16). Jackson objects to
all but grounds five, fifteen, and sixteen. (Id.)
Accordingly, the Court's review will be limited to
grounds one through four and six through fourteen. Thomas
v. Arn, 474 U.S. 140, 150 (1985) (finding that if a
party fails to object, the Court need not “review a
magistrate's factual or legal conclusions, under a de
novo or any other standard.”)
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
provides relief to a habeas petitioner if the underlying
state-court decision “was contrary to, or involved an
unreasonable application of, clearly established Federal Law,
as determined by the Supreme Court.” 28 U.S.C. §
2254(d). This clause applies “if the state court
arrives at a conclusion opposite to that reached by th[e
Supreme] Court on a question of law or if the state court
decides a case differently than th[e Supreme] Court has on a
set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 413 (2000). If
fair-minded jurists could disagree as to the correctness of
the state court's decision, then Jackson will not be
entitled to relief. Harrington v. Richter, 562 U.S.
86, 102 (2011).
AEDPA also provides relief if the state-court decision
“was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). This occurs when
“the state court identifies the correct governing legal
principle from th[e Supreme] Court's decisions but
unreasonably applies that principle to the facts of the
prisoner's case.” Williams, 529 U.S. at
413. Under this clause, Jackson must show that “the
state court applied [a Supreme Court case] to the facts of
his case in an objectively unreasonable manner.”
Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
reviewing a report and recommendation, this Court reviews de
novo “those portions of the report or specified
proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1)(C). The Court may
adopt without review any portion of the report to which an
objection is not made. See Thomas, 474 U.S. at 150.
On review, the Court “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). Accordingly, the Court will review de
novo the portions of Judge Whalin's recommendation to
which Jackson objects to determine if relief is warranted
under the AEDPA.
Jackson's Claims from Direct Appeal
Failure to Instruct on Self-Protection (Ground One)
of Jackson's claims concern trial errors and the issue of
whether the Kentucky Supreme Court was correct to conclude
that such errors were “harmless.” A habeas
petitioner is not entitled to relief based on trial error
unless he can establish that it resulted in “actual
prejudice.” See Brecht v. Abrahamson, 507 U.S.
619 (1993). The Court agrees with the Kentucky Supreme Court
and Judge Whalin that Jackson has not met this standard.
issue in ground one of Jackson's petition is the trial
court's failure to instruct the jury on a self-protection
defense for the lesser-included offenses of second-degree
manslaughter and reckless homicide. (D.N. 1-1, PageID # 49)
The Kentucky Supreme Court found that the trial court abused
its discretion in failing to so instruct. Jackson I,
2010 WL 252244, at *9. The court held, however, that the
error was harmless, given the fact that the jury chose to
convict Jackson under the correctly phrased instruction of
murder-a charge that placed an additional burden on the state
to disprove Jackson's claim of self-protection.
Id. at *10.
report and recommendation, Judge Whalin agreed, concluding
that Jackson could not prove that the failure to instruct the
jury on self-protection prejudiced him. (D.N. 29, PageID #
797) Jackson objects to this conclusion, arguing that the
failure effectively denied him from utilizing the
self-protection defense against the lesser-included charges.
(D.N. 34, PageID # 837-38) Even if this is true, however,
this goes to show only that the trial court erred. In his
objection, Jackson again fails to show that the error was
prejudicial, given that he was ultimately convicted under a
correctly worded charge. Accordingly, Jackson has failed to
meet his burden under Brecht, and the Court will
adopt Judge Whalin's conclusion as to ground one.
Limited Impeachment of Prosecution ...