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Potter v. Green

United States District Court, W.D. Kentucky, Paducah

April 1, 2019

JAMES CARR POTTER, PETITIONER
v.
JAMES DAVID GREEN, WARDEN, RESPONDENT

          MEMORANDUM OPINION

          Thomas B. Russell, Senior Judge United States District Court.

         This matter comes before the Court upon a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 by Petitioner James Potter. [R. 1.] Magistrate Judge King filed a Findings of Fact, Conclusions of Law, and Recommendation on the matter, [R. 16], which the Court adopted in part, [R. 19]. Specifically, the Court did not adopt the Magistrate Judge's findings concerning Potter's claim of ineffective assistance of counsel due to failure to investigate purchase records. [R. 19 at 24.] The Court held an evidentiary hearing solely on the issue of ineffective assistance of counsel due to failure to investigate purchase records on December 17, 2018, [see R. 35]. Thereafter, the parties filed simultaneous briefs and responses. This matter is now ripe for adjudication. For the reasons stated herein, the remaining claim of ineffective assistance of counsel within the petition for habeas corpus relief, [R. 1], is DENIED.

         Potter also filed a Motion for Leave to Submit Flash Drive as Copy of Trial Counsel File. [R. 38.] The Warden did not respond. Potter states that the custodian of his trial counsel file, Kentucky Department of Public Advocacy (KYDPA), provided a full and complete copy of the file on a flash drive because using any other format would be cost prohibitive. [Id. at 1-2.] As the Warden does not appear to object to this format, Potter's Motion for Leave to Submit Flash Drive, [R. 38], is GRANTED.

         BACKGROUND

         On 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.[1] [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 U.S. District Court for the Western District of Kentucky. [R. 1 (Habeas Petition).] In his petition, Potter raised three grounds on which he alleged being held in violation of the Constitution, laws, or treaties of the United States. [R. 1 at 15-31.] The claims alleged 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.] Regarding the sex toys, Potter stated:

There were three charges presented to the jury associated with the use of the sex toys - one count of first-degree rape and two counts of second-degree rape. Specifically, the first-degree rape charge alleged the use of the purple bunny vibrator. Potter has asserted that records of the purchase of the purple bunny vibrator would have established that he did not own that sex toy until sometime after December 16, 2006, making it impossible to have committed the offense as described by [J.A.] . . . Thus, receipts showing that Potter did not own that toy until much later would refute this allegation. Furthermore, if Potter did not own that toy until sometime after [J.A.]'s 12th birthday, then he could not be found guilty of first-degree rape because she was not less than 12 years old.

         [R. 1 at 16.] 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, James Green, (“the Warden”), [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)]. The Court adopted the Magistrate's Recommendation in part, and scheduled an evidentiary hearing solely on the issue of ineffective assistance of counsel due to failure to investigate the purchase records of sex toys. [R. 19 at 16, 24-25.]

         At the evidentiary hearing, the Court heard testimony from five different witnesses. The Court will provide a short summary of each witness's testimony followed by further discussion below as needed. First, Potter called Carolyn Keeley, Potter's trial attorney. Keeley testified that Brent Haire and Peggy Bridges were both investigators on the case. [R. 35 at 13.] She also testified that Potter was very involved in the case; to the point where she was “very careful about following through on anything he suggested because [she] knew that sooner or later [she]'d be testifying in this case down the road.” [Id. at 25-26.] However, more importantly, Keeley could not recall discussing with Potter or Haire the details surrounding the timing of Potter purchasing any sex toys. [Id. at 37-38]. Though, on the subject of her communications with Potter, Keeley stated under oath: “I can't imagine there being anything he brought up that we didn't look into.” [Id. at 38.] Furthermore, Keeley testified that it was their strategy at trial to argue a defense of “I absolutely didn't do it, ” and it would have been a bad strategy to argue to the jury “[h]e absolutely didn't do it, but if he did, then it should be a lesser offense.” [Id. at 39.]

         Second, Potter called Brent Haire, an investigator that assisted Keeley. Haire testified that he did not recall being instructed by Keeley or Potter to retrieve receipts for sex toys. [Id. at 48.] However, Haire recognized a document he described as a list he wrote of “things that either Mr. Potter was listing off or maybe Ms. Keeley was listing off of things involving the case, ” which included the lines “[k]nows when he bought the toys” and “[m]atch description with toys.” [Id. at 45-46.]

         Third, Potter called Peggy Bridges, another investigator that assisted Keeley with the case. Bridges testified: “I think that I talked to Mr. Potter and asked him where he got those toys, if he remembered where they came from, when he got them, how he paid for them. And to the best of my recollection, he either didn't remember where he bought them or didn't know how he paid for them or didn't remember when he got them.” [Id. at 52.]

         Fourth, Potter called Sebastian Francis Gruber, an investigator for the Department of Public Advocacy who was assigned the case post-conviction. Gruber testified that he was able to procure a credit union receipt showing that Potter made a purchase of $80.03 on December 29, 2006 at Tammy's-the store where Potter alleges he bought the purple bunny vibrator. [Id. at 65.] However, Gruber stated that the head of human relations for the company that owns Tammy's, Romantix, was unable to retrieve a receipt from the purchase because too much time had passed. [Id. at 69.] Furthermore, Gruber testified that he could have procured the receipt if he had requested it by 2012, as the company only keeps internal records, sales, and receipts for six years. [Id. at 70-71.] Gruber also testified that he found leads in the investigator's notes concerning questions about when Potter bought the sex toys that Gruber believes should have been further developed by the investigators. [Id. at 80.]

         Finally, Potter himself testified. Potter stated that he told trial counsel and the investigators about bank records he found that showed the dates of when he bought sex toys, but “[t]hey wouldn't look at the records.” [Id. at 95.] He also testified that he told Haire about the bank records, but he could not recall talking to Keeley about them. [Id. at 126.] However, Potter stated that he knew he sent her letters in which he asked her to come look at the bank records. [Id.]

         After the hearing, the parties filed simultaneous briefs and responses arguing the claim of ineffective assistance of counsel in failing to investigate the purchase records of the sex toys. [R. 37; R. 39; R. 44; R. 45.]

         LEGAL STANDARD

         The 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). The 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 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 process; or
(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, states:

(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 ...

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