United States District Court, E.D. Kentucky
JOHN T. GLOVER, Petitioner,
DON BOTTOM, Warden.
OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT EASTERN
DISTRICT OF KENTUCKY
matter is before the Court on the petitioner John T.
Glover's petition for habeas corpus relief under 28
U.S.C. §2254 (DE 4). After a jury trial, Glover was
convicted in state court of murder, first-degree robbery, and
first-degree arson. The court sentenced him to life in prison
without the possibility of parole for 25 years.
petition for habeas relief, Glover asserted five
constitutional violations in the state-court action (DE 4,
Petition at 26-52.) The magistrate judge reviewed the
petition and recommends (DE 17) that the Court dismiss the
petition with prejudice and that the Court deny a certificate
of appealability. Glover has filed objections (DE 20).
objects to the magistrate judge's recommendation with
regard to only his first and third grounds for relief. (DE
20, Objections at 1.) Both claims involve the testimony of
Clifford Taylor, Glover's friend who testified against
him at trial but later recanted his testimony.
his first claim, Glover asserts that the prosecution's
presentation of Taylor's testimony at trial - which he
argues was perjurious -violated his due process rights. For
his third claim for relief, Glover asserts that the manner by
which the Kentucky courts adjudicated the significance of
Taylor's recantation violated his due process rights.
the first claim, the magistrate judge determined there was no
federal constitutional right to a trial without perjury. In
his first objection to the magistrate judge's
recommendation, Glover asserts that there is such a right.
(DE 20, Objections at 5-8.) The Court need not address this
objection because the magistrate judge went on to find that,
even if such a right existed, Glover had not made the showing
necessary to disturb the state court's factual finding
that Taylor did not commit perjury and that his recantation
was not credible. Glover does not object to the magistrate
judge's finding that this Court has no grounds to disturb
this factual finding.
second objection involves his third claim for habeas relief:
that the state court violated his due process rights in the
way it evaluated the significance of Taylor's
recantation. Glover argues that, in determining whether he
was entitled to a new trial, the state court should have
evaluated “whether the result of the trial probably
[would have been] different had the jury been told at trial
of Taylor's recantation.” (DE 20, Objections at
10-11.) He argues the state court's failure to address
that issue violated his due process rights.
support of this argument, Glover cites Kentucky law holding
that “[i]n order for newly discovered evidence to
support a motion for new trial it must be ‘of such
decisive value or force that it would, with reasonable
certainty, have changed the verdict or that it would probably
change the result if a new trial should be
granted.'” Com. v. Harris, 250 S.W.3d 637,
640-41 (Ky. 2008) (quoting Jennings v. Commonwealth,
380 S.W.2d 284, 285-86 (Ky.1964)). Glover argues that by
failing to evaluate, as Harris instructs, whether
there is a reasonable certainty Taylor's recantation
would have changed the verdict at trial or would probably
change the verdict if a new trial should be granted, the
Kentucky courts violated his federal due process rights.
Supreme Court has stated repeatedly, however, that
“federal habeas corpus relief does not lie for errors
of state law.” Estelle v. McGuire, 502 U.S.
62, 68 (1991) (quoting Lewis v. Jeffers, 497 U.S.
764, 780 (1990). “In conducting habeas review, a
federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United
States.” Id. Thus, even if the Kentucky courts
violated Harris in their evaluation of the Taylor
recantation, that alone would not entitle Glover to habeas
relief. Instead, Glover must establish that the Kentucky
courts violated his federal due process rights.
Evitts v. Lucey, 469 U.S. 387 (1985), Glover argues
that, when the Kentucky Supreme Court establishes a standard
like it did in Harris, then it is a violation of
federal due process rights when Kentucky courts fail to
follow that standard. This is not correct. Such a failure on
its own is simply a violation of state law.
Evitts, the Supreme Court determined that,
“[e]ven if a State has no constitutional obligation to
grant criminal defendants a right to appeal, when it does
establish appellate courts, the procedures employed by those
courts must satisfy the Due Process Clause.” Ohio
Adult Parole Auth. v. Woodard, 523 U.S. 272, 292 (1998);
Evitts, 469 U.S. at 400-01. “Similarly, if a
State establishes postconviction proceedings, these
proceedings must comport with due process.” Ohio
Adult Parole Auth., 523 U.S. at 293.
does not, however, attack Kentucky's postconviction
procedures. He does not argue that those procedures do not
comport with due process. Instead, he argues that the
Kentucky courts failed to follow Kentucky common law in
evaluating Taylor's recantation. The Court cannot grant
habeas relief for any such failure.
in his objections, Glover argues that the magistrate judge
applied the incorrect standard to his claim that the Kentucky
Court of Appeals violated his constitutional rights when it
determined that Taylor's recantation did not merit a new
trial. The magistrate judge analyzed the claim under
§2254(d), which prohibits the Court from granting habeas
relief on any claim “that was adjudicated on the
merits in State court proceedings unless the
adjudication of the claim . . . 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.” 28 U.S.C. §2254(d)(1)
(emphasis added). Glover argues that the magistrate judge
should have reviewed the claim de novo because the
state court did not decide on the merits his claim that he
was entitled to a new trial. “It is well settled that
we may review de novo an exhausted federal claim
that was not adjudicated on the merits in state court.”
Rice v. White, 660 F.3d 242, 252 (6th Cir. 2011).
See also Hill v. Mitchell, 400 F.3d 308, 320 (6th
Cir. 2005) (“Because the state court did not reach the
merits of this federal claim, we review the claim de
novo.”) This applies, for example, where a state
court did not address a claim on the merits because it found
the claim to be procedurally improper.
is no question here that the Kentucky state courts did
address and deny on the merits Glover's claim that
Taylor's recantation entitled him to a new trial. Glover
first raised the claim in a post-conviction motion under
Kentucky Rule of Criminal Procedure 60.02. In that motion,
Glover submitted an affidavit from Taylor recanting his trial
testimony. Taylor stated in the affidavit that he had
committed the crimes all on his own and that that Glover was
not involved. Taylor further ...