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Potter v. Litteral

United States District Court, W.D. Kentucky, Paducah

May 23, 2018



          Thomas B. Russell, Senior Judge United States District Court

         This matter is before the Court on Petitioner James Potter's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. [R. 1.] Respondent Kathy Litteral responded, [R. 7], and Potter replied, [R. 12]. The Magistrate Judge filed Findings of Fact and Conclusions of Law and Recommendation. [R. 16.] Potter filed objections thereto. [R. 18.] This matter is now ripe for adjudication. Having conducted a de novo review of the portions of the Magistrate Judge's report to which Potter objected, [1] the Court ADOPTS IN PART the Findings of Fact and Conclusions of Law as set forth in the report submitted by the Magistrate Judge. For the reasons stated herein, Potter's objections are OVERRULED IN PART.


         On September 22, 2011, the Kentucky Supreme Court affirmed the lower court's verdict convicting James Potter of first-degree rape, first-degree sodomy, second-degree sodomy, second-degree rape, and attempted second-degree sodomy, as well as Potter's sentence of life imprisonment.[2] [See Potter v. Commonwealth, No. 2010-SC-000410-MR, 2011 WL 4430871 (Ky. 2011).] Thereafter, Potter filed a pro se Motion to Vacate Judgment pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 and a motion for an evidentiary hearing, [R 1-2 (McCracken RCr 11.42 Motion)], which were both denied by the McCracken Circuit Court, [R. 1-3 (McCracken Denial)]. An appeal to the Kentucky Court of Appeals followed, which was also denied. [R. 1-4 (RCr 11.42 Appeal Denial).] After that, the Supreme Court of Kentucky denied discretionary review. [R 1-5], On November 22, 2016, Potter filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 in the District Court for the Western District of Kentucky. [R. 1 (Habeas Petition).] In his petition, Potter raises three grounds on which he alleges he is being held in violation of the Constitution, laws, or treaties of the United States. [R. 1 at 15-31.] The claims allege violations of the Sixth and Fourteenth Amendment by denial of effective assistance of counsel through failure to investigate the purchase of sex toys the victim claims Potter used on her, failure to obtain a medical expert or otherwise effectively cross-examine the Commonwealth's medical expert, and failure to call a DNA expert to testify at trial. [Id.] Potter also requested an evidentiary hearing and discovery. [Id. at 31-32.] The Court referred this matter to the Magistrate Judge pursuant to 28 U.S.C. §§ 636(b)(1)(A) & (B). [R. 4]. After considering the response of the Respondent, Kathy Litteral, [R. 7], the Magistrate Judge denied the petition due to the three claims of ineffective assistance of trial counsel being without merit, denied Potter's request for discovery and an evidentiary hearing, and declined to issue a certificate of appealability, [R. 16 at 1 (Magistrate Recommendation)].

         On October 3, 2017, Potter filed Objections to the Magistrate Judge's Report and Recommendation. [R. 18 (Objection).] Pursuant to 28 U.S.C. § 636(b)(1), this Court will "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). Upon such review, this Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.


         The purpose of the writ of habeas corpus is "to ensure that individuals are not imprisoned in violation of the Constitution-not to correct errors of fact" Herrera v. Collins, 506 U.S. 390, 400 (1993). "Federal courts are not forums in which to relitigate state trials." Barefoot v. Estelle, 463 U.S. 880, 887 (1983).

         The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (April 24, 1996) ("AEDPA") amended the habeas statute, 28 U.S.C. § 2254, and applies to all habeas cases filed after April 25, 1996. The petition in this case was filed after that date, and therefore, the amendments to § 2254 are applicable. See Walker v. Smith, 360 F.3d 561, 563 (6th Cir. 2004). "The Antiterrorism and Effective Death Penalty Act of 1996 modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002) (citing Williams v. Taylor, 529 U.S. 362, 403-404 (2000)). The habeas statute provides:

An 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 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 process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

§ 2254(b)(1). Section 2254(d), as amended by the AEDPA, states:

(d) An 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; or
(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). Section 2254(d) "bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (2)" above. Harrington v. Richter, 562 U.S. 86, 98 (2011).

         Following the modifications set forth by the AEDPA, the Sixth Circuit has explained that a state court decision may only be overturned if:

1. It '[applies] a rule that contradicts the governing law set forth in [Supreme Court of the United States] cases, ' or; 2. the state-court decision 'confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent;' or 3. 'the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case;' or 4. the state court 'either unreasonably extends a legal principle from [a Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.'

Bailey v. Mitchell 271 F.3d 652, 655 (6th Cir. 2001) (internal citations omitted); see also Williams, 529 U.S. at 406-409; 412-13.

         When performing analysis of a state court decision pursuant to § 2554(d), the first requirement is that state courts be tested only against "clearly established Federal law, as determined by the Supreme Court of the United States." In order to be clearly established law, the law relied on by the petitioner must be law that was clearly established at the time the state court decision became final, not afterward. Williams, 529 U.S. at 380. The federal court is also limited to law "as determined by the Supreme Court" only. Id. at 381-82.

         Second, the Court must determine whether the state court decision was "contrary to, or involved an unreasonable application of that clearly established law. Id. at 384. In order to find a state court's application of Supreme Court precedent unreasonable under § 2554, the state court's decision must have been objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 520 (2003); Williams, 529 U.S. at 409 (explaining, "[s]tated simply, a federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable"). An unreasonable application of federal law is distinct and different from an incorrect application of federal law. Id. at 410; see also Macias v. Makowski, 291 F.3d 447, 545 (6th Cir. 2002) (holding "the relevant question is not whether the state court's decision was wrong, but whether it was an unreasonable application of clearly established federal law").

         Therefore, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 411. The Supreme Court has further explained that "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Stated differently, petitioners for habeas relief "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103.

         The AEDPA standard additionally provides that "a determination of a factual issue made by a State court shall be presumed to be correct." § 2254(e)(1). Factual determinations by State courts will not be overturned unless objectively unreasonable. § 2254(d)(2). The applicant, or petitioner, bears the burden of rebutting the presumption of correctness by clear and convincing evidence. Id; see also Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003) (holding "[u]nder AEDPA, primary or historical facts found by state courts are presumed correct and are rebuttable only by clear and convincing evidence" (internal quotation marks omitted)). The findings of state appellate courts are also accorded the presumption of correctness. Sumner v. Mata, 449 U.S. 539, 546 (1981) (holding "[s]ection 2254(d). . . makes no distinction between the factual determinations of a state trial court and those of a state appellate court").

         "But there are exceptions to the requirement of AEDPA deference." Montes v. Trombley, 599 F.3d 490, 494 (6th Cir. 2010). Specifically, the "substantially higher threshold" set by the AEDPA only applies to "claim[s] that w[ere] adjudicated on the merits in State court proceedings." Schriro v. Landrigan, 550 U.S. 465, 473 (2007); § 2254(d)(1). When a petitioner for habeas relief seeks review of claims that were not adjudicated on the merits in state court, "then the pre-AEDPA standards of review apply." Montes, 599 F.3d at 494 (citing Cone, 556 U.S. at 472). Under the pre-AEDPA standard, "questions of law, including mixed questions of law and fact, are reviewed de novo, and questions of fact are reviewed under the clear-error standard." Id. (citing Brown v. Smith, 551 F.3d 424, 430 (6th Cir. 2008)). See also Robinson v. Howes, 663 F.3d 819, 823 (6th Cir. 2011) ("Claims that were not 'adjudicated on the merits in State court proceedings' receive the pre-AEDPA standard of review: de novo for questions of law (including mixed questions of law and fact), and clear error for questions of fact.")

         "Under Harrington v. Richter, <[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on its merits in the absence of any indication or state-law procedural principles to the contrary.'" Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450, 460 (6th Cir. 2015), cert. denied sub nom (quoting Harrington, 562 U.S. at 99). However, if a state court indicates that it did not reach the merits of a claim due to some procedural principal, or "when there is reason to think some other explanation for the state court's decision is more likely" than an adjudication on the merits, the presumption will be overcome. Harrington, 562 U.S. at 99-100. For instance, when a state court makes clear that, "instead of issuing a merits decision, " the court "appl[ied] a procedural bar and thus [did] not consider[] the merits, " such rulings "are not subject to on-the-merits AEDPA deference." Barton, 786 F.3d at 460-61 (citing Johnson v. Williams, 133 S.Ct. 1088, 1097 (2013)). In situations "when a state court makes clear that it is deciding a claim both on the merits and on procedural grounds, [the Sixth Circuit has] held that a federal habeas court may nonetheless review that court's merits analysis and, if appropriate, apply AEDPA deference to that adjudication." Id. at 461 (chingBrooke v. Bagley, 513 F.3d 618, 624 (6th Cir. 2008)).


         I. Ground One: Ineffective Assistance of Counsel: Failure to Investigate

         In addressing Potter's argument of ineffective assistance of counsel for failure to investigate evidence of Potter's purchases of sex toys, the Magistrate Judge found that counsel was not ineffective on three different grounds. [R. 16 at 10-13.]

         A. Strickland Analysis

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;First, the Magistrate Judge held that Potter failed to establish ineffective assistance of counsel under the requirements of Strickland v. Washington,466 U.S. 668 (1984). [Id. at 9.] The Supreme Court explained the analysis necessary for determining ineffective assistance ...

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