United States District Court, E.D. Kentucky, Central Division, Lexington
REPORT AND RECOMMENDATION
CANDACE J. SMITH, UNITED STATES MAGISTRATE JUDGE
Sharon Dale Greer has filed a pro se Petition under
28 U.S.C. § 2254 for Writ of Habeas Corpus. (R. 1). In
the Petition, Greer asserts ineffective assistance of counsel
based upon counsel's failure to make a contemporaneous
objection to a PFO sentencing error under Commonwealth v.
Reener, 734 S.W.2d 794 (Ky. 1987), and counsel's
failure to convey Petitioner's acceptance of a plea
offer. (R. 1-1, at 5). Greer also alleges: (1) the trial
court erred in refusing to give an extreme emotional
disturbance (“EED”) jury instruction and (2) the
trial court erred in allowing the admission of evidence of
prior bad acts prohibited by Kentucky Rule of Evidence
404(b). (R. 1-1, at 7-8). Respondent has filed an Answer (R.
13), to which Petitioner has filed his Reply. (R. 17). The
matter is ripe for consideration and preparation of a Report
and Recommendation pursuant to 28 U.S.C. § 636(b). For
the reasons set forth below, it will be
recommended that Petitioner's §
2254 Petition be denied.
BACKGROUND AND PROCEDURAL HISTORY
January 25, 2008, a Lincoln County, Kentucky Grand Jury
returned an Indictment charging Petitioner with one count of
Assault in the First Degree, one count of Wanton Endangerment
in the First Degree, and two counts of Persistent Felony
Offender (“PFO”) in the Second Degree, having
been convicted of at least one prior felony. (R. 1-1, at
2-3). The case went to trial, and on September 10, 2008, the
jury returned a verdict of guilty on all four counts.
(Id. at 4-5). On October 10, 2008, the Lincoln
Circuit Court sentenced Defendant, in accordance with the
jury's recommendation, to life in prison for the offense
of Assault in the First Degree and ten years of imprisonment
for the offense of Wanton Endangerment in the First Degree,
enhanced by the PFO conviction. (R. 13-2, at
On direct appeal, the Kentucky Supreme Court recounted the
factual history as follows:
. . . Sharon Dale Greer, and the assault victim, Sandra
Mullins, began a romantic relationship in 2006. The couple
soon began living together, at first in Greer's camper,
and later, part-time in the camper and part-time in a home
owned by Mullins, which the two were remodeling. The
remodeling, in part, was for the purpose of enhancing access
for Mullins' ailing aunt, who eventually moved in so that
Mullins could care for her. After Mullins' aunt moved
into the home, the relationship between Greer and Mullins
became increasingly strained, and ultimately terminated with
Mullins' request for Greer to move out in November 2007.
Greer moved into the camper on the same property temporarily,
but Mullins forced him to move out of the camper by cutting
off the electricity. At that point, Greer reluctantly moved
off the property, but he continued to contact Mullins
frequently with pleas of reconciliation and often drove back
and forth on the road in front of Mullins' home . . . .
In early January 2008, Mullins' daughter-in-law was in
the house and the electricity started flashing on and off.
She called Mullins to report the problem and Mullins drove to
the residence, bringing her two-year-old granddaughter with
her. When Mullins exited the vehicle, but before she got her
granddaughter out of the car, she saw Greer “hunkered
beneath the porch.” Greer then pointed a sawed-off
shotgun at her and began ranting about why she had left him.
Mullins begged Greer for her life and all the while
Mullins' granddaughter, still in the car just a few feet
away, was screaming. Mullins' daughter-in-law came out
onto the porch, but complied with Mullins' immediate
request to go back into the house, lock the door, and call
the police. After assuring Greer that she would not call the
police if he let her go, Mullins began to back away from
Greer, at which point he shot her. After Greer loaded another
shell and shot Mullins a second time, she pretended to be
dead and Greer fled the scene.
Two police officers responded to the scene. One of the
officers dialed a cell phone number that was believed to be
Greer's. Someone picked up the call but did not say
anything. The officer proceeded to identify himself and ask
for Greer. The officer reminded Greer that the two of them
knew each other and then told Greer that he “needed to
take care of this.” Greer replied, “How's
Sandy [Mullins]?” The officer answered that Mullins was
being transported to the hospital for her injuries, but that
she was alert. He then tried to get Greer to divulge his
location before things got any worse. Greer responded,
“I'm not going back, ” and ended the call.
The police soon located Greer's abandoned vehicle and
began a search of the nearby wooded area. One of the officers
discovered Greer sitting on a log with a gun resting on his
leg. Although it is unclear whether the act was deliberate or
accidental, Greer shot himself in the face and lost an eye as
a result . . . .
(R. 1-1, at 7-9; Greer v. Commonwealth of Kentucky,
No. 2008-SC-000847-MR, 2010 WL 2471842, at *1-2 (Ky. June 17,
raised three claims on direct appeal, two of which are
relevant here: “1) that the trial court erred in
refusing to give an instruction on extreme emotional
disturbance (EED); [and] 2) that KRE 404(b) evidence of prior
bad acts was improperly admitted.” (R. 1-1, at 7). On
June 17, 2010, the Supreme Court of Kentucky affirmed
Greer's convictions and sentence while remanding the case
to correct a clerical error in the judgment. (Id. at
March 1, 2011, Petitioner, pro-se, filed a Motion to
Vacate, Alter, or Amend Sentence pursuant to Kentucky Rule of
Criminal Procedure 11.42. (Id. at 19). In his 11.42
motion, Petitioner raised two ineffective assistance of
counsel claims that are relevant here: 1) counsel failed to
make a contemporaneous objection to an error in PFO
sentencing under Commonwealth of Kentucky v. Reener,
734 S.W.2d 794 (Ky. 1987), and 2) counsel failed to convey
Petitioner's acceptance of the Commonwealth's plea
offer. (R. 1-1, at 31-35). Petitioner further claimed he was
prejudiced by counsel's deficient performance in failing
to object to the Reener error under Strickland
v. Washington, 466 U.S. 668 (1984), as the lack of an
objection precluded him from raising the issue on appeal. (R.
1-1, at 35-36). As to the second claim, Petitioner alleged he
was prejudiced because had counsel conveyed his acceptance of
the Commonwealth's plea offer, he would have been
sentenced to a fifteen-year term of imprisonment pursuant to
the terms of the agreement, rather life imprisonment upon
conviction at trial. (Id. at 36-37).
Lincoln Circuit Court denied Petitioner's 11.42 motion on
December 9, 2011, without conducting an evidentiary hearing.
(Id. at 46-49). The Circuit Court held Petitioner
should have raised the PFO sentencing error on direct appeal,
finding a contemporaneous objection not required to preserve
the issue. (Id. at 60-64). In any case, the court
held Petitioner failed to meet his burden of demonstrating
prejudice, since the deviation from Reener of not
assigning sentences for the underlying crimes prior to the
enhancement for PFO status could have had a mitigating effect
rather than a punitive effect on Petitioner's overall
sentence. (Id. at 65). The court found
Petitioner's second claim regarding failure to
communicate his acceptance of the plea bargain also failed.
(Id. at 67-69). Here, the court reasoned that
because Greer did not plead guilty or otherwise rely on the
Government's offer, no agreement was made, and thus, the
Government could have withdrawn the offer at any time.
Greer, now represented by counsel, appealed denial of his
11.42 motion to the Kentucky Court of Appeals, but only with
respect to the second claim-that counsel failed to
communicate Greer's acceptance of the Commonwealth's
plea offer. (R. 13-2, 117). Petitioner specifically argued
the lower court erred by denying an evidentiary hearing where
the allegations were not refuted on the face of the record
and by failing to apply a Strickland v. Washington
analysis, instead applying caselaw on the enforceability of
plea agreements. (Id. at 120-24). On August 2, 2013,
the Court of Appeals issued a four-page opinion affirming
denial. (R. 1-1, at 75-78). Continuing to be represented by
counsel, Petitioner moved for rehearing, which was denied.
(Id. at 79-84). Greer then appealed the decision of
the Kentucky Court of Appeals to the Kentucky Supreme Court
on October 21, 2013. (Id. at 85).
August 13, 2014, the Supreme Court of Kentucky vacated the
decision of the Court of Appeals and remanded the case to the
Lincoln Circuit Court for an evidentiary hearing, and for
consideration in light of Missouri v. Frye, 132
S.Ct. 1399 (2012) and Lafler v. Cooper, 132 S.Ct.
1376 (2012)-two recent Supreme Court cases addressing
ineffective assistance of counsel in the context of plea
bargaining. (Id. at 96). An evidentiary hearing was
held on November 14, 2014. (Id. at 101). At the
hearing Greer's trial counsel, Jenny Sanders, testified
that she remembered Greer declining a plea offer made by the
Commonwealth and that she did not fail to convey an
acceptance of the offer. (See Id. at 115).
remand, following the evidentiary hearing, the Lincoln
Circuit Court once again denied Greer's 11.42 motion.
This time, the court applied the two-prong Strickland v.
Washington test and found Greer failed to meet the
burden of demonstrating his counsel's performance was
ineffective. (Id. at 107-109). The court based this
finding on the conflicting testimony at the evidentiary
hearing as to whether the Commonwealth ever made an offer
including a fifteen-year prison sentence, ultimately finding
Attorney Sanders' testimony persuasive. (Id.).
this second denial of Greer's 11.42 motion on remand,
Greer's counsel successfully moved to withdraw.
(Id. at 111-12). Greer proceeded to file a pro
se appeal to the Kentucky Court of Appeals, arguing,
among other things, the evidentiary hearing was improper
because it did not cover his second ineffective assistance of
counsel claim that counsel failed to object to a PFO
sentencing error, which Greer raised in his original 11.42
motion but had not raised on appeal. (R. 13-2, at 192, 196).
The Kentucky Court of Appeals affirmed the circuit
court's denial of Petitioner's 11.42 motion, holding
the evidentiary hearing was properly limited to the
ineffective assistance claim Greer raised on appeal and which
was the sole subject of the Kentucky Supreme Court's
remand. (Id. at 218). The Kentucky Court of Appeals
also deferred to the circuit court's assessment of the
credibility of testimony given at the evidentiary hearing,
and the court's finding that Greer's counsel's
testimony was more persuasive. (Id. at 222).
then filed a pro se Petition under 28 U.S.C. §
2254 for Writ of Habeas Corpus. (R. 1). In the Petition,
Greer asserts two claims of ineffective assistance of
counsel, arguing counsel failed to make a contemporaneous
objection to a PFO sentencing error under Commonwealth v.
Reener, 734 S.W.2d 794 (Ky. 1987), and counsel failed to
convey Petitioner's acceptance of a plea offer. (R. 1-1,
at 5). Greer also alleges: 1) the trial court erred in
refusing to give an extreme emotional disturbance
(“EED”) jury instruction and 2) the trial court
erred in allowing the admission of evidence of prior bad acts
prohibited by Kentucky Rule of Evidence 404(b). (Id.