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Gabbard v. Sims

United States District Court, E.D. Kentucky, Northern Division, Covington

February 6, 2018



          Gregory F. Van Tatenhove United States District Judge

         On a summer night in 2009, Petitioner Daniel Keith Gabbard drove his semi-tractor while intoxicated, eventually ending his journey in a head-on collision that killed a Kentucky prosecutor, Mr. Doug Wright. But this story finds its roots over twenty years prior to Mr. Gabbard's accident, when Kentucky experienced the worst DUI crash in American history.[1] The aftermath of this devastating event, which involved the death of twenty-four teenagers and the drunk driver responsible seeing only eleven years in jail, changed the public perception of drunk driving. Following what many locals perceived to be an easy sentence, Kentucky communities became more willing to convict drunk drivers on charges carrying a higher prison sentence, like the empaneled jurors here, who found Mr. Gabbard guilty of wanton murder under KRS 507.020, a capital offense, rather than lesser manslaughter or homicide charges.[2]

         This matter is presently before the Court on Petitioner Daniel Keith Gabbard's pro se petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. [R. 1.] Consistent with local practice, this matter was referred to Magistrate Judge J. Gregory Wehrman, who filed a Report and Recommendation recommending that Mr. Gabbard's motion be denied. [R. 10.]

         Under Federal Rule of Civil Procedure 72(b)(2), a petitioner has fourteen days after service to register any objections to a Report and Recommendation, or else waive his rights to appeal. In order to receive de novo review by this Court, any objection to the recommended disposition must be specific. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). A specific objection “explain[s] and cite[s] specific portions of the report which [counsel] deem[s] problematic.” Robert v. Tesson, 507 F.3d 981, 994 (6th Cir. 2007). A general objection that fails to identify specific factual or legal issues from the Recommendation, however, is not permitted, since it duplicates the Magistrate Judge's efforts and wastes judicial economy. Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).

         Mr. Gabbard filed timely objections to Judge Wehrman's Report and Recommendation. [R. 11.] Although some of his objections are not sufficiently specific under the above criteria, the Court acknowledges its duty to review his filings under a more lenient standard than the one applied to attorneys because he is proceeding pro se. See Franklin v. Rose, 765 F.2d 82, 84-85 (6th Cir. 1985). Under a more lenient construction, some of Gabbard's objections are sufficiently definite to trigger this Court's obligation to conduct a de novo review. See U.S.C. § 636(b)(1)(c). The Court has satisfied that duty, reviewing the entire record, including the pleadings, the parties' arguments, relevant case law and statutory authority, as well as applicable procedural rules. For the following reasons, Mr. Gabbard's objections to Judge Wehrman's Recommendation [R. 11] and his petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 [R. 1] are DENIED.


         The present action stems from a January 2010 Pendleton Circuit Court trial, during which the jury returned a verdict convicting Petitioner Daniel Keith Gabbard of wanton murder and various misdemeanor offenses. On June 8, 2009, Mr. Gabbard, a licensed commercial truck driver, was driving, intoxicated, a semi-tractor southbound on U.S. Highway 27 when he lost control, crossed the centerline of the two-lane road, and collided head-on with the northbound vehicle. Mr. Gabbard survived the crash; however, the driver of the northbound vehicle, Commonwealth's Attorney for Pendleton County Doug Wright, tragically did not. [See R. 10 at 1 (citing Gabbard v. Commonwealth, No. 2010-SC-000435, 2011 WL 2112562, at *1-2 (Ky. May 19, 2011).] Testimony at trial described erratic driving on behalf of Mr. Gabbard, and Mr. Gabbard himself admitted that he had consumed at least twelve but possibly as many as sixteen beers that day while driving. Id. at 2. The Commonwealth Attorney charged Mr. Gabbard under KRS 502.020(1)(b), known to Kentuckians as the “wanton murder” statute. Mr. Gabbard's defense at trial, presented through his attorney Eric Deters, was to concede his intoxication and his role in causing the decedent's death, but to dispute the state of mind necessary for a wanton murder conviction, hoping instead for a lesser conviction of manslaughter or even reckless homicide. Id. The jury ultimately rejected Mr. Gabbard's defense, finding him guilty of wanton murder but recommending the minimum punishment, twenty years of imprisonment, possible for that crime. Id.

         Mr. Gabbard appealed the jury decision, arguing the evidence did not establish the aggravated wantonness needed to elevate a second-degree manslaughter or reckless homicide charge to wanton murder. He also brought ineffective assistance of counsel claims and presented an argument regarding the full use of his peremptory juror strikes. However, the Kentucky Supreme Court affirmed his conviction on direct appeal. Id. at 3-5.

         In addition to denying his appeal, Kentucky courts also repeatedly denied Mr. Gabbard post-conviction relief. In November 2011, Mr. Gabbard filed a motion pursuant to Kentucky Rule of Criminal Procedure 11.42 based on claims of ineffective assistance of counsel. The trial court conducted an evidentiary hearing with several witnesses, including Mr. Gabbard's trial counsel Eric Deters. The trial court ultimately denied the Rule 11.42 motion, and the Court of Appeals affirmed the denial. Id. at 5. In October 2014, the Kentucky Supreme Court denied Mr. Gabbard's motion for discretionary review. Id. at 6.

         Following this exhaustion of state remedies, Mr. Gabbard filed the instant § 2254 motion in December 2014. Id. Mr. Gabbard argues three main errors by the Kentucky courts: failure to grant a directed verdict because there was insufficient evidence at trial to support a wanton murder conviction, failure to find ineffective assistance of counsel on at least eleven separate instances; and failure to strike two jurors for cause. [See R. 1.] Magistrate Judge Wehrman recommended denying all of Mr. Gabbard's claims [R. 10], and Mr. Gabbard objects to all bases for the Magistrate's recommendation. [R. 11.]



         In his § 2254 petition, Mr. Gabbard argues the state courts' failure to grant his motion for directed verdict was either contrary to or an unreasonable application of clearly established federal law as to the conclusion that the trial lacked sufficient evidence to support a wanton murder conviction.[3] In Kentucky, an appellate court reviews a grant or denial of a directed verdict by considering “if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt.” Sluss v. Commonwealth, 381 S.W.3d 215, 219 (Ky. 2012) (citing Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991)). A defendant is only entitled to a directed verdict if and when the evidence shows that a guilty verdict was “clearly unreasonable.” Id. Kentucky law has established that intoxication may suffice to prove “circumstances manifesting extreme indifference to human life.” Id. In fact, Kentucky has consistently found that similarly situated defendants were not entitled to a directed verdict.[4]

         For habeas review of the sufficiency of evidence, “the relevant questions is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (emphasis original). A court reviewing a record of facts that support conflicting inference must assume that the trier(s) of fact resolved these conflicts in favor of the prosecution. McDaniel v. Brown, 558 U.S. 120, 133 (2010).

         Under Kentucky Revised Statute 507.020, “A person is guilty of murder when: . . . Including, but not limited to, the operation of a motor vehicle under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.” During the trial, a medical expert testified that blunt force trauma from the collision was the cause of Mr. Wright's death. Gabbard v. Commonwealth, No. 2010-SC-000435, 2011 WL 2112562, at *1 (Ky. May 19, 2011). Witnesses testified to seeing Mr. Gabbard speeding and swerving back and forth across the center line of the road. Id. An accident reconstructionist's report indicated Mr. Gabbard never applied his breaks. Id. Investigators testified to finding eight unopened cans of beer in and around Mr. Gabbard's truck. Id. Mr. Gabbard admitted he had consumed at least twelve beers, and he admitted that, during the drive, he realized he was intoxicated but did not stop. Id. at *2. Mr. Gabbard did not dispute the testimony concerning his driving. He maintains, instead, that the prosecution had insufficient evidence to find the appropriate mens rea: “indifference to the value of human life.” Id.

         Assuming that the evidence shows facts supporting conflicting inferences as to whether Mr. Gabbard demonstrated “indifference to the value of human life, ” this Court must assume that the jury resolved this conflict in favor of the prosecution. McDaniel, 558 U.S. at 133. The constitutional right to a jury trial guarantees “the common-sense judgment of a jury;” jurors are not required to ignore their own common sense and experiences. See United States v. Jones, 108 F.3d 668, 676 (6th Cir. 1997). While the jury could have interpreted Mr. Gabbard's drinking as “false confidence, ” as he claims, the jury could draw on common sense and experience to also interpret Mr. Gabbard's drinking as “indifference to the value of human life.” Given the prevalence of alcohol-related driving accidents and the ...

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