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Greer v. Smith

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

February 7, 2019

SHARON DALE GREER PETITIONER
v.
AARON SMITH, WARDEN RESPONDENT

          REPORT AND RECOMMENDATION

          CANDACE J. SMITH, UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.

         I. BACKGROUND AND PROCEDURAL HISTORY

         On 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 9-10).[1]

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, 2010)).

         Petitioner 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 18).

         On 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).

         The 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. (Id.).

         Petitioner 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).

         On 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).

         On 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.).

         After 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).

         Greer 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. at 7-8).

         II. ...


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