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Woolbright v. Crews

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

January 10, 2018

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

          MEMORANDUM OPINION AND ORDER

          Greg N. Stivers, Judge United States District Court

         The Court considers Petitioner Gary Woolbright's Objections (DN 115, 137) to two Reports and Recommendations ("R&R") (DN 108, 133) issued by Magistrate Judge Brennenstuhl regarding Petitioner's Petition for a Writ of Habeas Corpus (DN 1) and Petitioner's Motion to Reopen and Amend the Petition (DN 123). In addition, Petitioner's Motion for Judicial Notice of Adjudicative Facts (DN 138) is pending. For the following reasons, the Court OVERRULES Petitioner's Objections (DN 115, DN 137), ADOPTS the Magistrate Judge's R&Rs (DN 108, DN 133), DENIES the Petition for Habeas Relief (DN 1), DENIES the Motion to Reopen and Amend Petition (DN 123) and DENIES AS MOOT Petitioner's Motion for Judicial Notice of Adjudicative Facts (DN 138).

         I. BACKGROUND

         The facts of this case have been fully recited on a number of occasions. Accordingly, the Court will only summarize the facts necessary to adequately address Petitioner's objections.

         A. State Proceedings

         In March 2003, a jury in Barren Circuit Court convicted Petitioner of wanton murder, receiving stolen property with intent to manufacture methamphetamine, first-degree trafficking of a controlled substance, and first-degree possession of a controlled substance. (R&R 2, DN 108). Petitioner appealed his conviction to the Supreme Court of Kentucky, and the Supreme Court of Kentucky affirmed. (R&R 4, DN 108).

         Petitioner then sought post-conviction relief. He filed a pro se motion pursuant to Kentucky Rule of Criminal Procedure ("RCr") 11.42 in Barren Circuit Court, claiming that he received ineffective assistance of trial counsel and seeking to vacate his convictions.[1] (R&R 4, DN 108). The Barren Circuit Court appointed counsel to assist him in the presentation of his claims, but nonetheless denied them. (R&R 4, DN 108). Petitioner's post-conviction appellate counsel then appealed the denial of Petitioner's RCr 11.42 motion to the Kentucky Court of Appeals and Kentucky Supreme Court, [2] both of which affirmed. (R&R 4, DN 108).

         B. Federal Proceedings

         Thereafter, Petitioner filed a petition for writ of habeas corpus in which he raised several grounds for habeas relief, the following of which are presently relevant: Grounds 2 and 3, and Parts 4, 6, 8, 10, 11, and 12 of Ground 1. In Grounds 2 and 3, Petitioner asserted that the Barren Circuit Court violated his rights under the United States Constitution when it constructively amended Count 1 of the indictment-the count which charged Petitioner with murder. [3](R&R 33-34, DN 35; R&R 1-2, DN 133). Parts 4, 6, 8, 10, 11, and 12 of Ground 1 alleged claims of ineffective assistance of trial counsel ("IATC"). (R&R 28-29, DN 35; R&R 5, DN 108). Those Parts allege IATC for the following reasons:

Part No. 4: Trial counsel failed to interview and call witnesses who allegedly had information regarding the inadmissibility of drug evidence.
Part No. 6: Trial counsel failed to object and request a mistrial because of prosecutorial misconduct.
Part No. 8: Trial counsel failed to check the serial numbers of a handgun found at the crime scene when attempting to discern the handgun's owner.
Part No. 10: Trial counsel failed to object when the trial judge allegedly constructively amended the indictment by instructing the jury that it could convict Petitioner of wanton murder.
Part No. 11: Trial counsel failed to object on the ground that the jury verdict was not unanimous.
Part No. 12: Trial counsel failed to raise a double jeopardy objection when Petitioner was charged with both possession and trafficking of a controlled substance.

(R&R 28-29, DN 35). In addition, with the court's leave, Petitioner filed a supplement to his habeas petition, further developing some of his grounds for relief. (R&R 5, DN 108).

         In an R&R issued April 18, 2013, Magistrate Judge Brennenstuhl recommended that this Court reject Petitioner's claims, deny his Petition for Habeas Relief, and decline to grant him a certificate of appealability ("COA") as to all of his claims. (R&R 40, DN 35). Specifically, the Magistrate Judge concluded that Petitioner procedurally defaulted: (1) his ineffective assistance of counsel claims when he failed to raise them during each phase of his post-conviction proceedings, (2) Grounds 2 and 3 because he never presented those claims to the state court. (R&R 28, 33-34, DN 35). The Magistrate Judge also found that Petitioner had failed to show cause and prejudice sufficient to excuse his defaults. (R&R 31-34, DN 35).

         This Court then adopted the R&R in full, and, shortly thereafter, Petitioner filed a notice of appeal. (R&R 6, DN 108). The Sixth Circuit granted Petitioner a COA on Parts 4, 6, 8, 10, 11, and 12 of Ground 1 of his habeas petition, but declined to issue a COA with respect to Grounds 2 and 3. (R&R 6, DN 108; R&R 3-4, DN 133).

         On appeal, the Sixth Circuit reversed in part and affirmed in part this Court's order. (R&R 4-5, DN 133). In reaching this conclusion, the Sixth Circuit noted that, under U.S. Supreme Court precedent, a habeas petitioner's showing of ineffective assistance of initial-review post-conviction counsel can constitute cause sufficient to excuse a procedural default in some instances.[4](R&R 6-10, DN 108). It then reasoned that Petitioner's case presented such an instance and instructed this Court to determine on remand whether ineffective assistance of Petitioner's initial-review post-conviction counsel excuses his procedural default of Parts 4, 6, 8, and 12 of Ground 1. (R&R 9-10, DN 108). The Sixth Circuit also found that ineffective assistance of Petitioner's initial-review post-conviction counsel could not have caused his procedural default of Parts 10 and 11 of Ground 1 because he raised those claims in his initial RCr 11.42 motion, and, as a result, Petitioner did not procedurally default those claims until his post-conviction appellate counsel failed to raise them on appeal. (R&R 4, DN 133). It then noted that, pursuant U.S. Supreme Court precedent, ineffective assistance of post-conviction appellate counsel cannot excuse a procedural default; as a result, the Sixth Circuit affirmed the dismissal of Parts 10 and 11 of Ground 1. (R&R 4-5, DN 133).

         Following an evidentiary hearing, the Magistrate Judge issued a Second R&R addressing the question of whether Petitioner's initial-review post-conviction counsel's ineffective assistance caused the procedural default of Parts 4, 6, 8, and 12 of Ground 1. (R&R 10-26, DN 108). In doing so, the Magistrate Judge found that, contrary to the Sixth Circuit's decision, Petitioner-through a series of pro se briefs-fairly presented Parts 8 and 12 of Ground 1 during his initial-review post-conviction proceedings. (R&R 11, DN 108). As a result, the Magistrate Judge concluded that ineffective assistance of initial-review post-conviction counsel could not have caused the procedural default of those claims.[5] (R&R 11-12, DN 108). Further, the Magistrate Judge concluded that neither Part 4 nor Part 6 of Ground 1 presented a substantial claim of IATC, and, therefore, ineffective assistance of Petitioner's initial-review postconviction counsel could not excuse his default ...


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