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Woolbright v. Crews

United States District Court, W.D. Kentucky, Bowling Green Division

November 13, 2017

GARY R. WOOLBRIGHT PETITIONER
v.
COOKIE CREWS, Warden RESPONDENT

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATION

          H. BRENT BRENNENSTUHL UNITED STATES MAGISTRATE JUDGE.

         BACKGROUND

         Petitioner Gary R. Woolbright has filed, pro se, a motion (DN 123) that seeks relief, under Fed.R.Civ.P. 60(b)(6), from the Court's final judgment (DN 35, 37, 38) and seeks leave, under Fed.R.Civ.P. 15(a), to amend his petition for writ of habeas corpus (DN 1). Respondent Cookie Crews has filed an objection to both motions (DN 128). The time for filing a reply memorandum has expired. For the reasons set forth below, the undersigned recommends that Woolbright's motion be denied.

         FINDINGS OF FACT

         Count 1 in the Indictment charged Woolbright with violating KRS 507.020 (DN 123-1 PageID # 1626). In pertinent part the Indictment reads, “THE GRAND JURY CHARGES that on or about November 14, 2001, in Barren County, Kentucky, [Woolbright] committed the crime of MURDER when with the intent to cause the death of Danny Joey Tibbs, he shot and killed Tibbs with a 9 mm pistol” (DN 123-1 PageID # 1627).

         In Grounds 2 and 3 of the petition, Woolbright accuses the trial court of violating his Fifth, Sixth, and Fourteenth Amendment rights by constructively amending the charge in Count 1 of the indictment (DN 1, PageID # 24; DN 123 PageID # 1609-15). Woolbright alleges the trial court did this by giving an instruction that allowed the jury to find him guilty of intentional or wanton murder (DN 1, PageID # 24-27). Woolbright asserts that he has been prejudiced because the jury found him guilty of wanton murder[1] (Id.).

         In Part 10 of Ground 1, Woolbright argued that he received ineffective assistance of trial counsel (IATC) because his trial counsel failed to object to the trial court's constructively amending the charge in Count 1 of the indictment (DN 1 PageID # 23). In Part 11 of Ground 1, Woolbright asserted that he received ineffective assistance of trial counsel because trial counsel failed to object to the jury's verdict on the ground that its finding he was guilty of wanton murder was not unanimous (Id.).

         In a report and recommendation filed on April 19, 2013, the undersigned concluded that federal review of the claims in Grounds 2 and 3 was barred because they were procedurally defaulted in the state courts and Woolbright had failed to make a cause and prejudice argument to excuse the procedural defaults (DN 35 PageID # 907-08). The undersigned also found that federal review of the IATC claims in Parts 10 and 11 of Ground 1 was barred because Woolbright did not fairly present these federal constitutional claims in his collateral attack brief to the Kentucky Court of Appeals and he had failed to demonstrate cause and prejudice to excuse the procedural defaults (Id. PageID #903-04). In reaching this conclusion, the undersigned acknowledged Woolbright's argument that his post-conviction appellate counsel failed to present these IATC claims in his appeal to the Kentucky Court of Appeals (Id. PageID # 904-05). The undersigned concluded that Woolbright could not use a claim of ineffective assistance of post-conviction appellate counsel to establish “cause” for these procedural defaults (Id. PageID # 905-06). The undersigned noted that throughout his pleadings, Woolbright also mentioned ineffective assistance of counsel on direct appeal (DN 35 PageID # 905). However, upon further review of those pleadings, the undersigned concluded that Woolbright was actually referring to ineffective assistance by his post-conviction appellate counsel (Id.). Thus, contrary to Woolbright's assertion (DN 123 PageID # 1608), the record shows that he did not raise a claim of ineffective assistance of direct appeal counsel with regard to the procedural default of these IATC claims in Parts 10 and 11 of Ground 1.

         The District Judge adopted the undersigned's Findings of Fact and Conclusions of Law, denied Woolbright's habeas petition, and denied a certificate of appealability (DN 37). Additionally, the District Judge issued a final judgment in favor of Crews and dismissing with prejudice Woolbright's petition (DN 38).

         Woolbright filed a notice of appeal (DN 39) and moved the Court for a certificate of appealability (DN 40). The District Judge transferred the motion to the Sixth Circuit for consideration (DN 44). The Sixth Circuit subsequently issued an order addressing Woolbright's motion for a certificate of appealability (DN 46). In pertinent part, the Sixth Circuit's order recognized that the claims in Grounds 2 and 3 “could have been brought on direct review” and, thus, “any failure of post-conviction counsel does not provide cause for their default” (DN 46 PageID # 976-77). The Sixth Circuit concluded that “reasonable jurists could not debate that these claims are barred from habeas review” (Id. at 977). Therefore, the Sixth Circuit denied Woolbright's application for a certificate of appealability as to the claims in Grounds 2 and 3 (Id. PageID # 978-79).

         The Sixth Circuit issued a certificate of appealability as to seven IATC claims in Ground 1 of Woolbright's petition (DN 46, 49). After the parties submitted briefs regarding the seven IATC claims, the Sixth Circuit issued an opinion (DN 49). The Sixth Circuit affirmed the district court's ruling that federal review was barred as to the IATC claims in Parts 2, 10 and 11 of Ground 1 because they were raised in Woolbright's Rule 11.42 motion but not presented to the Kentucky appeals courts and Woolbright failed to demonstrate cause and prejudice to excuse this procedural default before the state courts (DN 49 PageID # 995-96). Notably, the Sixth Circuit rejected Woolbright's efforts to preserve any future argument that the holdings in Martinez v. Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler, __U.S.__, 133 S.Ct. 1911 (2013) should be extended to using ineffective assistance of post-conviction appellate counsel to establish “cause” because it noted that the Supreme Court indicated the holding in Martinez did not apply to attorney errors in appeals from initial-review collateral proceedings (DN 49 PageID # 996, citing Martinez, 566 U.S. at 16).

         The Sixth Circuit reversed the district court's ruling on four of Woolbright's IATC claims and remanded for further proceedings[2] (DN 49 PageID # 998). Notably, the Sixth Circuit's judgment indicates that “the judgment of the district court is AFFIRMED IN PART, REVERSED IN PART, and the case is REMANDED for further proceedings consistent with the opinion of this court” (Id. PageID # 999). Thus, the Sixth Circuit affirmed this Court's judgment with regard to the claims in Grounds 2 and 3 and the IATC claims in Parts 10 and 11 of Ground 1.

         Woolbright's current motion (DN 123) seeks relief, under Fed.R.Civ.P. 60(b)(6), from the Court's final judgment (DN 38) and seeks leave of court, under Fed.R.Civ.P. 15(a), to amend his petition (DN 1). Woolbright purportedly wants to attack the Court's erroneous procedural default rulings that precluded a merits determination of his claims in Grounds 2 and 3 and his IATC claims in Parts 10 and 11 of Ground 1 (DN 123).

         More specifically, as to the claims in Grounds 2 and 3 of the petition, Woolbright wants to argue ineffective assistance of appellate counsel on direct appeal to establish “cause” for his failure to raise them on direct appeal (DN 123 PageID # 1609-15). Woolbright makes a bare assertion that the undersigned disregarded his previous attempt to establish “cause” with a claim of ineffective assistance of counsel on direct appeal (Id. PageID # 1608). Woolbright intends to argue that the “prejudice” requirement is satisfied because the trial court's constructive amendment to Count 1 of the indictment is a structural error that requires an automatic reversal (Id.).

         Additionally, Woolbright wants to use a claim of ineffective assistance of post-conviction appellate counsel to establish “cause” for his failure to present to the Kentucky Court of Appeals the IATC claims in Parts 10 and 11 of Ground 1 (Id. PageID # 1615-22). Essentially, Woolbright is arguing that the holdings in Martinez and Trevino should be extended to claims of ineffective assistance of post-conviction appellate counsel (Id.). He also seems to be arguing that the holdings in Martinez ...


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