United States District Court, W.D. Kentucky, Paducah
MEMORANDUM OPINION AND ORDER
B. Russell, Senior Judge United States District Court
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,  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.
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. [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)].
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.
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
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
(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,
(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;
(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,
the modifications set forth by the AEDPA, the Sixth Circuit
has explained that a state court decision may only be
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
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.
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.
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").
"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.
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").
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.")
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)).
Ground One: Ineffective Assistance of Counsel: Failure to
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.]
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 ...