United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge
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. 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.
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.]
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).
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]
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.
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.
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.
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.]
§ 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. 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.
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).
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
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 ...