United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
States District Court David J. Hale, Judge.
Johnson filed a petition for writ of habeas corpus under 28
U.S.C. § 2254. (Docket No. 1) Respondent Randy White
opposes Johnson's petition. (D.N. 15) The Court referred
the matter to Magistrate Judge Colin Lindsay, who submitted
Findings of Fact, Conclusions of Law, and Recommendation.
(D.N. 29) Judge Lindsay recommended that the Court deny
Johnson's petition with prejudice and deny a certificate
of appealability. (Id., PageID # 358) White and
Johnson timely filed objections to Judge Lindsay's report
and recommendation. (D.N. 30; D.N. 31) While Johnson objects
to Judge Lindsay's recommendation that his petition be
denied (D.N. 31), White took “the unusual
position” of objecting to the favorable report to
correct an oversight in failing to bring a Sixth Circuit case
to Judge Lindsay's attention (D.N. 30). For the reasons
set forth below, White's objection will be sustained, and
Johnson's objection will be overruled. The Court will
adopt in part Judge Lindsay's Findings of Fact,
Conclusions of Law, and Recommendation and deny Johnson's
found Johnson guilty of first-degree robbery and first-degree
burglary and sentenced him to twenty-five years'
imprisonment. Johnson v. Commonwealth, 327 S.W.3d
501, 505 (Ky. 2010). Johnson appealed to the Kentucky Supreme
Court, which hears direct appeals from circuit-court
judgments imposing prison sentences of twenty years or more.
See Ky. Const. § 110(2)(b); Johnson,
327 S.W.3d at 503. In his direct appeal, Johnson argued that
the trial court erred in refusing to instruct the jury on
second-degree robbery and second-degree burglary and in
failing to hold an evidentiary hearing on his motion to
suppress DNA evidence. Johnson, 327 S.W.3d at 503.
The Kentucky Supreme Court rejected Johnson's arguments
and affirmed the trial court's judgment. Id.
then filed a motion to vacate, set aside, or correct the
judgment against him pursuant to Kentucky Rule of Criminal
Procedure 11.42. Johnson v. Commonwealth, No.
2012-CA-000320-MR, 2013 WL 1776029, at *1 (Ky. Ct. App. Apr.
26, 2013). As grounds for the motion, Johnson asserted that
his trial counsel was ineffective for failing to conduct an
adequate pretrial investigation, failing to prepare for
trial, permitting unlawful DNA evidence to be admitted at
trial, and failing to ensure that the jury was properly
instructed. Id. at *2. The trial court denied the
motion without an evidentiary hearing, and the Kentucky Court
of Appeals affirmed. Id. at *1, *5. Johnson filed a
motion for discretionary review, which the Kentucky Supreme
Court denied. (D.N. 15-11, PageID # 277)
who remains in state custody, has filed a pro se petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(D.N. 1) As grounds for his petition, Johnson alleges that
the state trial court refused to let the jury decide whether
the weapon used in this case was a “deadly
weapon”; the court allowed illegally obtained DNA
evidence to be submitted to the jury; trial counsel refused
to allow him to represent himself; counsel refused to ask
certain questions of the victim at trial; and counsel failed
to object to perjury during the sentencing phase of his
trial. (Id., PageID # 5, 7-8, 10, 12)
matter was referred to United States Magistrate Judge Colin
Lindsay for Findings of Fact, Conclusions of Law, and
Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
(D.N. 10, PageID # 40; D.N. 23) Both White and Johnson filed
objections to the report and recommendation. (D.N. 30; D.N.
31) The Court reviews de novo the portions of the report and
recommendation to which objections are filed. See Walkup
v. United States, No. 1:09-CR-00026-TBR-HBB, 2016 WL
6780332, at *1 (W.D. Ky. Nov. 15, 2016).
district court “shall entertain an application for a
writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court only on the ground
that he is in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C.
An application for a writ of habeas corpus . . . shall not be
granted unless it appears that-
(A) the applicant has exhausted the remedies available in the
courts of the State; or
(B)(i) there is an absence of available State corrective
(ii) circumstances exist that render such process ineffective
to protect the rights of the applicant.
§ 2254(b)(1). “An applicant shall not be deemed to
have exhausted the remedies available in the courts of the
State, within the meaning of this section, if he has the
right under the law of the State to raise, by any available
procedure, the question presented.” § 2254(c).
“In order to exhaust a claim, the petitioner
‘must “fairly present” his claim in each
appropriate state court (including a state supreme court with
powers of discretionary review), thereby alerting that court
to the federal nature of the claim.'”
Woolbright v. Crews, 791 F.3d 628, 631 (6th Cir.
2015) (quoting Baldwin v. Reese, 541 U.S. 27, 29
(2004)). “When a petitioner has failed to fairly
present his claims to the state courts and no state remedy
remains, his claims are considered to be procedurally
defaulted.” Id. “If a petitioner's
claims are procedurally defaulted, they may not be reviewed
by a habeas court unless he can demonstrate ‘cause'
and ‘prejudice.'” Id. (quoting
McMeans v. Brigano, 228 F.3d 674, 680 (6th Cir.
Antiterrorism and Effective Death Penalty Act (AEDPA), which
amended Section 2254(d), “requires ‘heightened
respect' for legal and factual determinations made by
state courts.” Chatman v. Litteral, No.
5:16-cv-00177-GNS-LLK, 2017 WL 4330370, at *3 (W.D. Ky. Sept.
29, 2017) (quoting Herbert v. Billy, 160 F.3d 1131,
1134 (6th Cir. 1998)). The AEDPA provides that
[a]n application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
§ 2254(d). “Under the ‘contrary to'
clause, a federal habeas court may grant the writ 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, 412-13 (2000).
“Under the ‘unreasonable application' clause,
a federal habeas court may grant the writ if 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.”
Id. at 413.
Lindsay concluded that Johnson procedurally defaulted two of
his claims related to ineffective assistance of counsel
because he did not present them to the state courts or show
good cause for his failure to do so. (D.N. 29, PageID # 355,
358) White objected to Judge Lindsay's conclusion that
Johnson failed to show good cause, on the basis of a recent
Sixth Circuit decision holding that there may be good cause
to excuse procedural default of an ineffective-assistance
claim if the prisoner was unrepresented by counsel during the
initial collateral-review proceeding in state
court. (D.N. 30, PageID # 359-60) That case,
Woolbright, supra, reiterated prior Supreme
Court holdings that cause to excuse procedural default of a
substantial ineffective-assistance claim may be established
where (1) state law bars or denies a petitioner the
meaningful opportunity to raise ineffective-assistance claims
on direct appeal; and (2) the petitioner was unrepresented
(or lacked effective assistance of counsel) at his initial
collateral-review proceeding. 791 F.3d at 631 (citing
Trevino v. Thaler, 569 U.S. 413, 429 (2013) and
Martinez v. Ryan, 566 U.S. 1, 17 (2012)). While
White asserts that Woolbright represents a ...