Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Grey v. Smith

United States District Court, E.D. Kentucky, Central Division

October 1, 2018

ALLEN GREY PETITIONER
v.
AARON SMITH, WARDEN RESPONDENT

          REPORT AND RECOMMENDATION

         On February 1, 2018, Petitioner Allen Grey (“Grey” or “Petitioner”), an inmate currently incarcerated in the Kentucky State Reformatory, LaGrange, Kentucky, filed a pro se Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254.[1] (See R. 1). Consistent with local practice, the matter has been referred to the undersigned for initial consideration and a report and recommendation. For the reasons set forth herein, it will be recommended that the District Court dismiss Grey's Petition for a Writ of Habeas Corpus.

         I. PRELIMINARY REVIEW STANDARD

         Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts allows a federal district court to conduct a preliminary review prior to serving a respondent with a copy of a petition and requiring a response.[2] Rule 4 specifically instructs trial courts that “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.” Because preliminary review reveals that the Petition in this case is time-barred under the applicable statute of limitations, Rule 4 mandates that it be dismissed without requiring a formal response.

         II. PROCEDURAL BACKGROUND

         On February 7, 2003, Grey was involved in an altercation outside of a club in Lexington, Kentucky.[3] See Grey v. Commonwealth, 2005-SC-590, 2007 WL 1532661 (Ky. May 24, 2007); Grey v. Commonwealth, 2013-CA-806, 2014 WL 3406678 (Ky. Ct. App. July 11, 2014). During the altercation, someone fired several shots. Grey, 2007 WL 1532661, at *1. Upon hearing the shots being fired, Grey produced a handgun and fired thirteen shots into the crowd, killing one person and injuring three others. Id. See also Grey v. Commonwealth, 2009-CA-2381, 2011 WL 3759543 (Ky. Ct. App. Aug. 26, 2011). After the shooting, Grey threw his handgun into a local reservoir. Grey, 2007 WL 1532661, at *1.

         Grey was indicted by a Fayette County Grand Jury on April 28, 2003; following a jury trial, Grey was convicted of wanton murder under KRS § 507.020, three counts of assault in the fourth degree under KRS § 508.030, and tampering with physical evidence under KRS § 524.100. Id. On June 29, 2005, Grey was sentenced to 38 years of imprisonment. Id.

         On May 24, 2007, the Supreme Court of Kentucky affirmed on direct appeal. See Grey, 2007 WL 1532661, at *1. In its opinion affirming Grey's conviction, the Supreme Court of Kentucky rejected Grey's contention that the trial court erred in overruling defense counsel's motion for a mistrial based upon lost or destroyed evidence.[4] Id. The Kentucky court also rejected Grey's argument that the trial court erred in denying defense counsel's motion for a directed verdict based upon Grey's contention that a third unidentified shooter could have been the person who assaulted the victims. Id. at 2. Finally, the Supreme Court of Kentucky rejected Grey's argument that the wanton murder instruction was error based upon Grey's assertion that he fired his handgun into the crowd in self-defense. Id. at *2-3.

         On December 20, 2007, Grey filed a motion for collateral relief pursuant to Kentucky Rule of Criminal Procedure (“RCr”) 11.42, which was denied by the state trial court. See Grey, 2011 WL 3759543. Subsequently on August 26, 2011, the Kentucky Court of Appeals affirmed in part, reversed in part, and remanded, directing the Fayette Circuit Court to conduct an evidentiary hearing on the issue of trial counsel's effectiveness at sentencing. The Kentucky Court of Appeals rejected Grey's argument that his trial counsel was ineffective for failing to interview and present certain witnesses at trial, but remanded and instructed the trial court to conduct an evidentiary hearing on the issue of whether Grey's trial counsel was ineffective for failing to present mitigating evidence at sentencing. Id. at *1-2.

         The Fayette Circuit Court held an evidentiary hearing on remand from the Kentucky Court of Appeals on December 4, 2012, and again denied Grey's request for relief under RCr 11.42 on April 3, 2013. The Kentucky Court of Appeals affirmed the trial court's determination on July 11, 2014. See Grey, 2014 WL 3406678. Grey did not seek a further appeal and the Court of Appeals' decision became final on August 11, 2014. See Ky. RCr. 12.02; Ky. CR 76.30.

         Over three years later, on February 6, 2018, Grey filed a pro se Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 with this Court, seeking reversal or dismissal of his Kentucky conviction and sentence. (See R. 1, at 15). In his Petition, Grey raises numerous grounds for relief, many of which are not clearly defined and overlap with one another. First, Grey raises 18 contentions of ineffective assistance of counsel, most of which essentially allege in general terms that Grey's trial counsel did not actively investigate or defend Grey's underlying criminal case.

         Next, Petitioner Grey raises multiple obscure claims of state court error. Grey also contends that the trial court erred in failing to disqualify itself from presiding over his 11.42 post-conviction proceedings on remand, because the trial court had rejected in its previous written opinion Petitioner's claim of actual innocence and was therefore “biased/prejudiced” against him. Further, Grey claims that the trial court erred in denying his claim of actual innocence. Apparently in support of this claim for relief, Grey asserts that “Jury/Witnesses saw Mr. Grey['s] name and picture” in the media and “this cause[d] mistaken identifications, coerced confessions and snitches.” (R. 1-1, at 8). Grey, in vague terms, asserts the justification of self-defense under KRS § 503.050. Grey also asserts that “another person may have been shooting, ” pointing to the testimony of the Government's expert at trial, who was allegedly unable to say whether the bullets extracted from the victim came from a 9mm handgun like the type used by Grey. Additionally, Grey asserts a due process violation because he was allegedly in the federal witness protection program at the time of the shooting, but “[t]he Federal Court denied any help to Mr. Grey[.]” (Id. at 14).

         Finally, echoing his assertions on appeal, Grey raises numerous claims based upon the Lexington Police Department's destruction of allegedly exculpatory evidence. Grey asserts that the Commonwealth's destruction of the evidence constituted improper tampering with evidence under KRS § 524.100, and the trial court erred in failing to grant a mistrial and later denying Grey's 11.42 motion without conducting an evidentiary hearing on this issue. Finally, based upon this evidence, Grey asserts that the trial court erred in failing to direct a verdict on the charges of wanton murder and on the three assault charges.

         As the Sixth Circuit has previously advised, a § 2254 petition is “the exclusive vehicle for prisoners in custody pursuant to a state court judgment who wish to challenge anything affecting that custody[.]” Greene v. Tenn. Dep't of Corr., 265 F.3d 369, 371 (6th Cir. 2001) (quoting Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir. 2000)). Although Grey's § 2254 Petition is the proper means through which a prisoner may seek federal habeas relief, for the reasons set forth below, his Petition does not survive preliminary review.

         III. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.