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Kilburn v. Smith

United States District Court, E.D. Kentucky, Southern Division, Pikeville

April 22, 2019

MARION KILBURN, Petitioner,
v.
AARON SMITH, Warden, Respondent.

          REPORT AND RECOMMENDATION

          Can dace J. Smith, United States Magistrate Judge

         This matter is before the Court on Petition for Writ of Habeas Corpus of Marion Kilburn filed pursuant to 28 U.S.C. § 2254. (R. 1). Petitioner Kilburn asserts 13 claims in support of his Petition; the first 10 claims stem from disposition by the Kentucky Court of Appeals of Kilburn's claims of ineffective assistance of his trial counsel, Emma Jones. Kilburn further asserts that he is entitled to habeas relief because the Supreme Court of Kentucky erred in affirming, on direct appeal, the trial court's rulings (1) denying defense counsel's motion for change of venue, (2) refusing to strike two jurors for cause, and (3) rejecting Kilburn's argument regarding double jeopardy. (R. 1-2, at 2). Following adjudication of his post-conviction motions in the Kentucky state courts, Petitioner now seeks appointment of counsel and an evidentiary hearing before this Court “on all issues, ” requesting this Court order a writ of habeas corpus granting retrial and his immediate release, or a reduction in his “severely harsh” sentence from 24 years to a lesser sentence such as 10 years. (R. 1, at 15; R. 1-2, at 4-6).

         Respondent Warden Aaron Smith timely filed a Response to Petitioner's § 2254 Petition. (R. 12). Respondent supplied 17 data disks containing un-transcribed state court video proceedings, as well as an appendix containing the relevant record of state court proceedings in support of the parties' submissions. (See R. 12-2; R. 12-3; R. 12-4; R. 14). Though the Court granted Petitioner 30 days to file a Reply (see R. 13), Petitioner declined to take advantage of the opportunity. Having all relevant documents before the Court, this matter is ripe for consideration and preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b).

         Careful examination of the state court record reveals Petitioner Kilburn has wholly failed to meet his burden to show that habeas relief is warranted, and the undersigned is satisfied that the case at bar does not present a circumstance where the state courts' rulings were so lacking in justification that habeas corpus relief is required to disturb the Commonwealth's sovereign power in order to “guard against extreme malfunctions in the state criminal justice system.” See Harrington v. Richter, 562 U.S. 86, 103 (2011). Instead, as explained below, with respect to his 10 ineffective assistance of counsel (“IAC”) claims, the Kentucky court reasonably applied Strickland in concluding that Petitioner Kilburn failed to make the requisite showing that Kilburn's trial counsel was constitutionally deficient or that, absent counsel's alleged errors, the result of the trial would have been different. See Strickland v. Washington, 466 U.S. 668 (1984). Nor does the record demonstrate that, on direct appeal, the Supreme Court of Kentucky in adjudicating the motion for change of venue, the motion to strike two jurors, or the issue of double jeopardy reached a decision that was either contrary to, or involved an unreasonable application of, clearly established federal law, or was based on an unreasonable determination of facts in light of the evidence presented in the state court proceeding. Accordingly, it will be recommended that Petitioner's § 2254 Petition (R. 1) be denied.

         I.BACKGROUND

         Petitioner's state criminal charges stemmed from an automobile collision that occurred on the evening of February 4, 2011.[1] On that evening, Joey Conn and his six-year-old daughter, Olivia, were traveling northbound in his pick-up truck on Highway 23 in Floyd County, Kentucky. They were struck head-on by a vehicle traveling southbound in the northbound lane of the road, operated by Petitioner Marion Kilburn. (R. 12-3, at 18). Petitioner was estimated by law enforcement officers to be traveling between 72 to 86 miles per hour at the time of the collision. (See R. 12-4, at 7; R. 12-3, at 17). Joey Conn's vehicle was traveling at approximately 31 miles per hour just prior to impact. (R. 12-3, at 18).

         After the motor vehicle collision, Kilburn was found slumped over the seat of his vehicle with a bleeding cut to the forehead. (See R. 12-4, at 7-8). As emergency responders opened the driver's side door, they noted a strong odor of alcohol, and several beer cans fell onto the roadway. Kilburn admitted that he had consumed 10-12 cans of beer previously that evening, and a partially consumed 24-pack of beer was found in the back seat of his vehicle. (Id.; R. 12-3, at 19). Kilburn was unable to say over what period of time he consumed the 10-12 cans. (R. 12-3, at 19). A blood test subsequently indicated that Kilburn's blood alcohol level was nearly three times the legal limit. (See R. 12-4, at 7-8). Petitioner Kilburn's blood alcohol level was at approximately 0.22 grams per 100 milliliters of blood. (R. 12-3, at 18).

         The occupants of the vehicle struck by Kilburn sustained injuries as a result of the collision and were transported to a nearby hospital by ambulance. (See R. 12-4, at 7-8; R. 12-3, at 19). Joey Conn suffered several broken ribs as well as severe bruising and a knee injury from the accident. Conn's minor child, Olivia, sustained severe internal injuries and required extensive medical treatment. She suffered permanent damage to her bowels, as well as a broken back, and required administration of a feeding tube for approximately one month following her release from the hospital.

         A. Underlying State Court Criminal Proceedings

         1. Trial

         On March 16, 2011, a grand jury returned an Indictment in the Circuit Court of Floyd County, Kentucky, alleging that on February 4, 2011, Petitioner Kilburn operated a motor vehicle under a suspended license, on the wrong side of the road, at a high rate of speed, and while under the influence of alcohol, causing serious physical injury to oncoming motorist Joey Conn as well as his passenger Olivia Conn. (R. 12-3, at 1). The Indictment alleged 10 counts. Count I of the Indictment first alleged that Kilburn was subject to a penalty enhancement as a Persistent Felony Offender (“PFO”) in the First Degree (Count I) pursuant to Kentucky Revised Statute (“KRS”) § 532.080. (R. 12-3, at 1). Counts II and III[2] charged Kilburn with First Degree Assault pursuant to KRS § 508.010 by “wantonly engag[ing] in conduct which created a grave risk of death to another, thereby causing serious physical injury” to Olivia Conn and Joey Conn, respectively, “when the defendant was driving under the influence on the wrong side of the highway and hit the vehicle” driven by Joey Conn and in which Olivia Conn was a passenger “head on[.]” (R. 12-3, at 1).

         Next, Count IV charged Kilburn with “operating a motor vehicle while under the combined influence of alcohol and any other substance or combination of substances which impairs one's driving ability” pursuant to KRS § 189A.010(5)(B). (Id.). Similarly, Count V charged Kilburn with operating a motor vehicle with a license that had been suspended due to a previous instance of operating a motor vehicle under the influence of alcohol, second offense, pursuant to KRS § 189A.090(2)(B). Kilburn was also charged with reckless driving pursuant to KRS § 189.290 (Count VI); driving without proof of insurance pursuant to KRS § 304.39.080 (Count VII); possession of an open alcoholic beverage container pursuant to KRS § 189.530 (Count VIII); failure to wear a seatbelt pursuant to KRS § 189.125 (Count IX); and failure to illuminate head lamps pursuant to KRS § 189.030 (Count X).[3] (Id.). Defendant entered a plea of Not Guilty on all charges. (See R. 12-3, at 3).

         The case proceeded to a 3-day jury trial on May 29, 2012. Kilburn did not testify during the guilt phase of the trial. (R. 12-3, at 20). The jury found Kilburn guilty of First Degree Assault (Count II), Fourth Degree Assault (Count III), Impaired Driving (Count IV), Operating on a Suspended License (Count V), and Operating without Insurance (Count VII). (R. 12-3, at 20). The sentencing phase began the following day, and a first degree persistent felony offender (“PFO”) instruction was read to the jury along with the sentencing instructions on the charges on which Kilburn was convicted.

         Based upon the recommendation of the Floyd Circuit Court jury, Kilburn was sentenced to 10 years as to the charge of First Degree Assault (Count II); under the PFO enhancement (Count I), this sentence was enhanced to 23 years.[4] (R. 12-3, at 11). The Judgment ordered the sentences in four of the five remaining counts to run concurrently with this 23-year sentence: Kilburn was sentenced to 1 year on the Fourth Degree Assault conviction (Count III); 6 months on the Impaired Driving conviction (Count IV); and 90 days on the Operating without Insurance conviction (Count VII). (Id.). Finally, as to the conviction for Operating on a Suspended License (Count V), the trial court imposed a 1-year sentence and ordered that it run consecutive to the 23-year sentence imposed in Count I, for a total of 24 years of imprisonment. (Id.).

         2. Direct Appeal

         Following trial and sentencing on August 17, 2012, Kilburn, through appellate counsel, filed a direct appeal as of right pursuant to Section 110(2)(b) of the Kentucky Constitution. On appeal, the Supreme Court of Kentucky reversed Kilburn's conviction on the charge of operating a motor vehicle with no insurance (Count VII), but affirmed his other convictions as well as his 24-year sentence. (R. 12-4). See also Kilburn v. Commonwealth, 2012-SC-494, 2014 WL 1514622 (Ky. Apr. 17, 2014). Kilburn had alleged five claims of error on direct appeal, four of which are relevant to the § 2254 Petition before the Court.

         a. The trial court committed error when it denied Kilburn's motion for change of venue.

         First, Kilburn claimed that the trial court erred by overruling his petition for change of venue filed on May 8, 2012 and renewed on May 29, 2012. (R. 12-3, at 17). Defense counsel had argued that prior to trial, a number of local news sources reported injuries to the six-year-old passenger, Olivia Conn, and referred to Petitioner's past criminal history involving alcohol-related convictions; counsel also pointed out that the case was being discussed by the community both in a local church and on the website Topix, an Internet forum. (R. 12-3, at 23). The trial court denied the motion both initially and when it was renewed by defense counsel prior to trial.

         On appeal, Kilburn's appellate counsel argued that “[e]xtensive and detailed pretrial publicity compromised Marion Kilburn's right to a fair, impartial and indifferent jury free from outside influences, guaranteed to him by the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment.” (R. 12-3, at 24) (citing Irvin v. Dowd, 366 U.S. 717 (1961)). The appeal also argued that Section 11 of the Kentucky Constitution as well as KRS § 452.210 require courts “to grant a change of venue if the defendant cannot have a fair trial in the county where the prosecution is pending.” (R. 12-3, at 24) (citing Brewster v. Commonwealth, 568 S.W.2d 232, 235 (Ky. 1978)).

         The Supreme Court of Kentucky found that the trial court did not abuse its discretion in rejecting Kilburn's venue argument, because “the mere fact that jurors may have heard, talked or read about a case is not sufficient to sustain a motion for change of venue, absent a showing that there is a reasonable likelihood that the accounts or descriptions of the investigation and judicial proceedings have prejudiced the defendant.” (R. 12-4, at 10-11) (citing Brewster v. Commonwealth, 568 S.W.2d 232, 235 (Ky. 1978)). Pointing to the trial court's examination of jurors during voir dire, the Supreme Court of Kentucky concluded that “knowledge about the case was not widespread throughout the community” and Kilburn “only presented evidence that the accident received media coverage, not that extreme prejudice existed in the community.” (Id. at 10-12). Not only did Kilburn fail to show either that “a significant amount of the potential jury pool” was aware of the facts of the case or that “any juror expressed an opinion as to his guilt before trial, ” but upon a review of the record the Supreme Court concluded that the evidence showed just the opposite. (Id. at 12). Moreover, the trial court ensured that the two jurors[5] who had heard of the case by reading newspaper coverage represented to the trial court that they were able to be fair and impartial and assess the case only on the evidence introduced at trial. (R. 12-4, at 11). Accordingly, the Supreme Court of Kentucky concluded that “[t]he totality of the circumstances does not show a reasonable likelihood” that prejudicial news prior to Kilburn's trial prevented a fair trial. (Id.) (citing Sheppard v. Maxwell, 384 U.S. 333, 363 (1966)).

         b. The trial court committed error when it failed to strike two jurors for cause during voir dire.

         Kilburn's second argument on appeal claimed that the trial court erred in denying trial counsel's motion to strike two jurors for cause, and subsequent motion to set aside the verdict and motion for a new trial based upon the same issue. Counsel argued that the trial court's errors denied Kilburn the right to an impartial jury protected by Section 11 of the Kentucky Constitution as well as the Sixth and Fourteenth Amendments to the United States Constitution. Because Kilburn was forced to exhaust his peremptory challenges to remove the two jurors, an additional juror, whom Kilburn alleged he would have excused, sat on the jury.

         Kilburn contended that during voir dire, the trial court overruled defense counsel's motion to strike the two jurors for cause. Kilburn's position was that the jurors should be excused for cause because they each indicated they had read inadmissible evidence in the Floyd County Journal prior to the trial. (R. 12-3, at 18). During voir dire, a juror stated that she “read about [the accident] in the Floyd County Journal a couple of times.” (R. 12-3, at 18, 27-28). The juror answered the trial court's follow-up questions, confirming that she had not formed an opinion about the case and promising to disregard what she may have heard and base her decision on the evidence and the trial court's instructions. (Id.). Another juror stated that she read the Floyd County Journal article but could not remember the content; moreover, the juror responded to the trial court's questions affirming that she would disregard what she read in the paper and make her decision on the evidence presented at trial. (R. 12-3, at 31-32). The trial court overruled counsel's objection that the jurors should be stricken for cause on grounds that the Floyd County Journal characterized Kilburn as a “a habitual drunk” and “referred to his past DUI record.” (R. 12-3, at 30).

         On appeal, counsel argued that merely by reading the article, which contained “inadmissible and highly prejudicial information that called Mr. Kilburn a habitual drunk and referred to his past DUI record, ” the jurors should have been stricken for cause on grounds that they could not “conform [their] views to the requirements of the law and render a fair and impartial verdict.” (R. 12-3, at 33). Counsel contended that any “gray area” as to a juror's impartiality should be resolved in favor of a defendant. (R. 12-3, at 34) (citing Randolph v. Commonwealth, 716 S.W.2d 253, 255 (Ky. 1986); King v. Commonwealth, 276 S.W.3d 270 (Ky. 2009)).

         Finding that the trial court did not abuse its discretion in denying Kilburn's motions to strike for cause, the Supreme Court of Kentucky reasoned that each of the two jurors who identified hearing something about the case in the media prior to trial “was questioned about his or her exposure to the news article” by the trial court. (R. 12-4, at 14). The Supreme Court concluded that mere exposure to news media under the totality of the circumstances was insufficient to show that the jurors were unable to render a fair and impartial verdict on the evidence, as “[n]either juror had sufficient knowledge of the case to require disqualification . . . and both were unequivocal in their belief they could remain impartial.” (Id. at 13-14) (citing Foley v. Commonwealth, 953 S.W.2d 924, 932 (Ky. 1997) (stating that jurors are not expected to “live in a vacuum” or “be totally ignorant of any case they may be called upon to decide”)).

         c. The trial court's jury instructions violated Kilburn's right against being held in double jeopardy.

         Counsel's next argument on direct appeal asserted that the trial court committed error when it adopted jury instructions that supported multiple convictions for the same offense, in violation of the Double Jeopardy clause of the Fifth Amendment to the United States Constitution, as incorporated through the Fourteenth Amendment, as well as Section 13 of the Kentucky Constitution and KRS § 505.020. (R. 12-3, at 37). Counsel argued that once the jury found Kilburn guilty of operating a motor vehicle with an alcohol concentration of above 0.08 (Count IV), the format of the jury instructions then required the jury to also find Kilburn guilty under the charge of First Degree Assault (Count II), which requires a finding in part that Kilburn was “driving his vehicle under the influence[.]” (R. 12-3, at 37-38). Counsel argued that, because operating a motor vehicle with an alcohol concentration of above .08 is equivalent to a finding of driving a vehicle under the influence, Count IV was included in Count II and therefore the jury instructions “permitted the jury to find Kilburn guilty of the same act” in more than one instance. (R. 12-3, at 39).

         The Supreme Court of Kentucky rejected Kilburn's argument on direct appeal. (R. 12-4, at 17) (citing Blockburger v. United States, 284 U.S. 299 (1932)). While the two charges arise from the same course of conduct, they each “require proof of an additional fact which the other does not.” Id. The Kentucky Supreme Court pointed out that the First Degree Assault charge, unlike the DUI statute, “does not require proof that the defendant was intoxicated;” however, it “does require proof that the defendant caused serious physical injury either intentionally or wantonly.” (R. 12-4, at 18) (citing KRS § 508.010). The Kentucky Supreme Court contrasted the assault charge with the DUI statute, which “requires proof that the defendant was in physical control of a motor vehicle while intoxicated, but calls for no proof of injury to another.” (R. 12-4, at 18). Accordingly, the Supreme Court concluded that “a defendant can be convicted of both first-degree assault and operating a motor vehicle with alcohol concentration over .08 and not run afoul of double jeopardy. (Id.) (citing Justice v. Commonwealth, 987 S.W.2d 306, 312 (Ky. 1998)).

         d. The trial court's jury instructions violated Kilburn's right against double enhancement.

         Kilburn's final relevant argument on direct appeal asserted that the trial court committed reversible error when it allowed the jury instructions to include an enhancement under a charged offense to be used again as the basis of a PFO enhancement. Kilburn had two separate prior felony convictions for operating a motor vehicle while license revoked or suspended for DUI entered on April 15, 2008 and on March 8, 2006. (R. 12-3, at 40). Counsel asserted that these prior convictions were used as a basis for Kilburn's first degree PFO conviction (Count I), and that the same felony convictions were also used to enhance Kilburn's charge of operating on a suspended license (Count V), second offense, a class D felony. (See Id. at 40-42) (citing Corman v. Commonwealth, 908 S.W.2d 122, 123 (Ky. Ct. App. 1995) (“[W]hen a single prior felony is utilized to create an offense or enhance a punishment at the trial of the second crime, that same prior felony cannot be used at that trial to prosecute the defendant as a persistent felony offender”)). Counsel further asserted that this constituted “a prejudicial double enhancement” in violation of Kilburn's right to equal protection under the 14th Amendment to the United States Constitution as well as the Kentucky Constitution.

         The Supreme Court of Kentucky held that the trial court did not err, and that Kilburn's argument “misapplie[d] the concept of double enhancement.” (R. 12-4, at 18-19) (citing Dale v. Commonwealth, 715 S.W.2d 227 (Ky. 1986)). The Kentucky Supreme Court explained that “[f]or an impermissible double enhancement to occur, the same felony must be used to create or enhance the severity of a charge, and then used again to enhance the penalty of the same created or enhanced charge.” (R. 12-4, at 20) (emphasis added). While one of Kilburn's two previous convictions was used to enhance his operating on a suspended license charge to a second offense, and those same convictions were also used to establish Kilburn's status as a first-degree PFO, “his PFO status was not used to enhance the punishment for his operating on a suspended license charge a second time.” (R. 12-4, at 19-20). Rather, “[t]he jury instructions made clear that [the] PFO enhancement could only be applied to [Kilburn's] conviction for first-degree assault.” (R. 12-4, at 20). As a result, “there were two independent enhancements, and not a double enhancement of the same charge.” (Id.).

         Upon conclusion of its review on direct appeal, the Supreme Court of Kentucky affirmed the judgment of the Floyd Circuit Court in all relevant respects.[6] (R. 12-4, at 20). Accordingly, Kilburn's 24-year sentence was affirmed on direct appeal. Kilburn did not thereafter file a petition for certiorari in the United States Supreme Court. (See R. 1, at 3).

         B. Post-Conviction Proceedings

         1. State Collateral Proceedings

         On August 1, 2014, Petitioner Kilburn, acting pro se, filed a Motion to Vacate, Set Aside, or Correct Sentence seeking to collaterally attack his Floyd County, Kentucky Circuit Court conviction pursuant to Rule 11.42 of the Kentucky Rules of Criminal Procedure (“RCr”). (R. 12- 4, at 22). Kilburn raised ten claims of ineffective assistance of counsel, [7] in which he argued he would not have been found guilty at trial or would have received a lesser sentence if he had had effective counsel. Kilburn's RCr 11.42 motion sought an evidentiary hearing, an order appointing counsel, and an order vacating the judgment and setting aside his 24-year sentence.

         Subsequently, on August 3, 2014, the Floyd Circuit Court appointed counsel for Kilburn, and held Petitioner's RCr 11.42 motion in abeyance pending a submission from counsel. (See R. 12-4, at 40, 47). On March 2, 2015, Kilburn's appointed counsel requested an evidentiary hearing and filed a Submission on Movant's Pro Se Motion to Vacate Pursuant to RCr 11.42 and Motion for an Evidentiary Hearing, a general legal brief on the legal standards of ineffective assistance of counsel. (R. 12-4, at 25).

         On June 24, 2015, the Floyd Circuit Court held an evidentiary hearing, wherein Kilburn was represented by appointed counsel. (See R. 12-4, at 48). Kilburn testified at the hearing, and also called his trial counsel, Attorney Emma Jones, to testify. (See R. 12-4, at 59). Kilburn's testimony at the evidentiary hearing focused primarily upon (1) trial counsel's failure to investigate or otherwise utilize the “blackout” theory at trial, and (2) counsel's failure to introduce evidence of the victims' negligence at trial. First, Kilburn testified that he believed his trial counsel was ineffective for failing to investigate his claim that he had suffered a head injury on the previous day, causing a blackout which continued until after the accident.

         Kilburn testified that the night before the subject accident, he was walking along a creek near a friend's house when he fell over a hill and hit the back of his head. Upon falling, Kilburn “blacked out” and did not regain consciousness until he awoke in the hospital after the subject automobile collision. He testified that, as a result, he has no memory of subsequently getting into his vehicle, driving on the wrong side of the road, or colliding with the victims' vehicle. On cross-examination, Kilburn admitted that he fell and hit his head because he is an alcoholic and was under the influence of alcohol. Kilburn testified that he cannot remember ever disagreeing with trial counsel regarding use of this head injury evidence at trial. He admitted that Attorney Jones did explain to him that it would “not be a good thing” to present to the jury.

         Next, Kilburn's testimony at the evidentiary hearing focused on the strategic decision of Attorney Jones not to introduce evidence of the victim Joey Conn's failure to use a car seat when traveling with his child. Kilburn testified that 6-year-old Olivia Conn was merely buckled into a regular seat belt, rather than a child restraint seat, at the time of the accident. Kilburn acknowledged that he caused the accident and that he did not dispute that Olivia Conn would still have sustained injuries in the collision if she had been buckled into a child restraint seat, but he believed that she “would not have been hurt as bad” and therefore he was “not the cause of the little girl getting hurt as bad as she did.” On cross-examination, counsel for the Commonwealth asked Kilburn what facts he believed his trial counsel failed to investigate with respect to this issue. Kilburn testified that he never discussed the car seat issue with trial counsel; Kilburn claimed that Attorney Jones never told him that the “little girl” was not in the child restraint seat, and he did not discover that fact until he received subsequent post-conviction briefing from the Commonwealth.

         As to his remaining claims, Kilburn did not offer substantive testimony. He stated that he cannot recall any disagreements with Attorney Jones regarding what he wanted counsel to raise at trial. With respect to his claim regarding double jeopardy, Kilburn merely testified that he did not recall any conversations with his trial counsel regarding double jeopardy. With respect to his claim that he was not present at critical stages of the proceedings, Kilburn testified that he was not present at “all the pretrial conferences” but was unable to point to any specific instances. With respect to his claim that counsel was ineffective for failing to investigate alibi witnesses or present an alibi defense, Kilburn was unable to point to any specific alibi witnesses or theories; rather, when counsel asked on direct examination what Kilburn meant by raising the issue of alibi witnesses, Kilburn testified that the length of his sentence was too severe.

         Finally, Kilburn testified that his overall reason for raising his RCr 11.42 motion was that he was “hoping to get some time off” of his sentence. He stated that he is sorry for what happened to Joey and Olivia Conn, that he regrets what happened and does deserve to “do time, ” but that he sees other defendants receive lesser sentences of 10-15 years “for killing people” and here neither victim died in the accident. He reiterated that a lesser sentence was appropriate because even though he was the cause of the accident, he was not the cause of the “little girl getting hurt as bad as she did” due to lack of a child restraint seat. Likewise, a lesser sentence was appropriate because he suffers from alcoholism and neither intended to cause the accident nor was aware of his actions due to his claimed blackout. Kilburn concluded by stating that he is aging and has serious health issues due to his alcoholism.

         Kilburn's trial counsel, Emma Jones, then testified at the evidentiary hearing.[8] Jones testified that the facts of the case were clear and her trial strategy was to secure conviction on a lesser degree of assault that would permit 20% parole eligibility. She testified that “a 20-year sentence at 85% was a death sentence for [Kilburn]; if at 20% at least he had a chance at parole.” Attorney Jones also testified regarding the investigation of Kilburn's “blackout” defense. Jones testified that she hired an accident constructionist as well as a psychologist in preparation for trial, and that she discussed the “blackout” defense with Kilburn. Attorney Jones testified that the expert psychologist evaluated Kilburn; after discussing the findings with the psychologist, Jones concluded that the expert testimony of the psychologist was not helpful to the defense. As a result of her discussion with the expert psychologist, Attorney Jones decided not to use the expert at trial and not to rely on the blackout defense. Jones further testified that she was concerned introducing this subject would work against the defense's goals by opening the door for the prosecution to introduce evidence of Kilburn's extensive alcohol-related criminal history during the guilt phase of the trial. Attorney Jones further testified that she then talked to Kilburn regarding the psychologist's remarks and explained that she felt such a strategy would not be good, as well as why it would work against the defense's goals, and he agreed to follow her recommendation. Jones testified that, as a result of her strategy, Kilburn's alcoholism and extensive alcohol-related criminal history was not admitted during the guilt phase of trial and only came up during sentencing.

         Next, Jones testified that she and Kilburn discussed whether to point out mitigating details such as the child restraint seat or the fact that Joey Conn could have braked earlier than he did, but concluded that would translate to the jury as shifting blame to the victims. Jones testified that Joey Conn was an effective, sympathetic witness, and she believed being kind and sympathetic to the victim was a helpful strategy and had a better impact on the jury than cross-examining Mr. Conn as to why he did not secure his daughter in a car seat. Attorney Jones further testified that being kind and sympathetic to the victim is a common defense strategy. Moreover, Jones testified that the child was six years old, which was “right on the edge” of whether a restraint was necessary. She testified that her research indicated most people in the jury pool at the time did not use child restraints for a child of that age; using car seats at an older age is more widespread now, but at the time was not the practice of the local community.

         As a result, Attorney Jones concluded this approach was too risky and that “blaming the victim” would cause a backlash against Kilburn. Instead, Jones discussed a strategy of mitigation with Kilburn. Kilburn testified during the sentencing phase and followed the defense strategy of showing remorse and stating that he had paid for past alcohol-related incidents by serving his terms of incarceration. Jones testified that Kilburn's show of remorse was impactful, but that ultimately her strategy did not win at trial. On cross-examination, when asked whether she would use the same strategy again, Attorney Jones testified that it is common for trial attorneys to second guess themselves. In response to a question from the Commonwealth's counsel on cross-examination, Attorney Jones acknowledged that her strategy resulted in a sentence of only four years over the minimum, rather than the statutory maximum of life in prison. She testified that if she had utilized the blackout defense or had highlighted the victims' negligence, she does not know if the outcome would have changed; Kilburn may have prevailed at trial, or may have received a life sentence.

         Upon conclusion of the testimony, the Floyd Circuit Court found that Ms. Jones was effective, that she did what she could do with the case she had, and that Kilburn had failed to demonstrate how counsel's alleged errors “would have made a difference” at trial. Following the evidentiary hearing, the Floyd Circuit Court entered an Order overruling Kilburn's RCr 11.42 motion. (R. 12-4, at 34). Beginning with Kilburn's first and second IAC allegations, the trial court rejected Kilburn's argument that trial counsel was grossly ineffective for failing to investigate a defense that Kilburn was not totally at fault for the injuries of Olivia Conn. (R. 12-4, at 34). The trial court explained that “Defendant testified he never discussed the fact that Olivia Conn was not in a child's restraint car seat [with counsel]. Trial counsel for Defendant . . . testified that the issue of whether to blame Joey Conn, father of Olivia was discussed and dismissed as a strategy that was dangerous to the Defendant.” (Id.). The trial court concluded that “[t]his is not ineffective assistance and was not likely to change the result of the trial.” (Id.).

         Next, moving to Kilburn's third and fourth contentions of IAC, the trial court rejected Kilburn's argument that trial counsel was grossly ineffective for failing to raise the defense that Kilburn had a head injury from the previous night that caused a “black-out” leading to the wreck and that the head injury eliminated his control over his wish to drive at the time of the accident. (R. 12-4, at 34-35). The trial court found that the record indicated just the opposite, as “[i]n fact, trial counsel hired a psychologist to present a defense regarding the ‘black-outs'” but that “[s]uch a defense would have highlighted Defendant's history of alcohol use, which would open the door for the Commonwealth to present Defendant's significant history of drinking-related charges.” (R. 12-4, at 35). Based upon its assessment of the record, the trial court concluded that “[t]his is not ineffective assistance and was not likely to change the outcome of the trial.” (Id.). The trial court further concluded that as to Kilburn's eighth allegation of IAC, “[t]he same holds true with the Defendant's claim that he had a mental disability.” (Id.).

         The trial court next rejected Kilburn's fifth and sixth allegations of IAC, as to the issues of double enhancement and double jeopardy. The trial court explained that Kilburn's allegations constitute “simply a misunderstanding of the law by the Defendant and does not constitute ineffective assistance of counsel . . . . [Kilburn] simply misunderstands.” (R. 12-4, at 35). Next, the trial court addressed Defendant's seventh contention of IAC, that counsel allowed the trial to occur in a county where publicity regarding the case was prejudicial without an effort to move to another venue. (R. 12-4, at 35). The trial court concluded that to the contrary, “[i]n fact, counsel made multiple efforts to move the case” to another venue. (Id.). Moving to Kilburn's ninth allegation of IAC, where Kilburn claims he was not informed about nor present for all critical events in the case, the trial court stated that Kilburn “could not identify one such instance.” (Id.). Finally, as to the tenth allegation of IAC that trial counsel was ineffective for failing to investigate alibi witnesses, the trial court reasoned that “[t]here obviously is no alibi for Mr. Kilburn in this matter.” (R. 12-4, at 35-36). The trial court concluded that “Kilburn received a very stiff sentence for causing severe injury to a young girl and her father. Counsel for Kilburn did what she could with the case she had to work with.” (R. 12-4, at 36).

         Kilburn then appealed, pro se, to the Kentucky Court of Appeals. (R. 12-4, at 37). Kilburn's appellate brief referenced the same ten bases alleged before the Floyd Circuit Court, and asserted an additional allegation of IAC that the trial court “failed to strike two jurors due to Counsel's lack of proper defense and argument[.]” (R. 12-4, at 43). Kilburn's brief, however, merely referenced the ten allegations and did not set forth any specific facts or argument as to their merit. The only issue substantively addressed in the appeal of the RCr 11.42 motion was counsel's failure to address Kilburn's claim of a head injury.

         In support of his requests for relief to the Kentucky Court of Appeals, Kilburn argued that “the [i]ssues brought in Appellant's Motion to Vacate RCr 11.42 were not fully addressed and the major issue of which appellant has attempted to bring before the Courts the claim of a head injury has repeatedly been side-stepped by the attorneys and the Commonwealth.” (R. 12-4, at 48). Kilburn asserted that “[t]his head injury was the main cause of the accident, and not just the alcohol. Professional assistance on head injuries was warranted and Counsel should have plied the Courts for expert advice on this issue.” (R. 12-4, at 48). Kilburn also argued that the evidentiary hearing held by the trial court was inadequate, “as the Trial Court never actually considered Appellant's issues and only made a cursory ruling on the merits[.]” (R. 12-4, at 47). Kilburn characterized the evidentiary hearing as “only a means for the State to play on Appellant's intelligence and lack of enough skills to speak before the courts. Appellant felt he was ‘no more than a field mouse being played with by cats,' as he could not speak for himself, and Counsel provided no help other than to be present.” (Id.). Kilburn argued that the Court of Appeals should remand the case “for a fully-developed Evidentiary Hearing on all issues.” (R. 12-4, at 49).

         The Kentucky Court of Appeals ruled on Kilburn's appeal of the Floyd Circuit Court's order denying his RCr 11.42 motion on July 21, 2017. (R. 12-4, at 68). Denying Kilburn's claim for relief, the Kentucky Court of Appeals stated that “[a]fter a careful review of the record, we affirm because Kilburn's claim that he received the ineffective assistance of counsel concerning his head injury and blackout theory of defense lacks merit[.]” (R. 12-4, at 69). Furthermore, the Kentucky Court of Appeals determined that the issue of the head injury Kilburn received the day before the subject collision “is the only claim that Kilburn raised in his 11.42 motion that he also raises on appeal. Because he has not brought his remaining RCr 11.42 claims on appeal, those claims are waived, and we will not consider them.” (R. 12-4, at 70).

         The Kentucky Court of Appeals applied the two-prong Strickland standard in determining whether Kilburn received ineffective assistance of counsel due to counsel's failure to pursue the issue of Kilburn's head injury he received the day prior to the subject automobile collision. (See R. 12-4, at 71) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Analyzing the witness testimony at the evidentiary hearing before the Floyd Circuit Court, the Kentucky Court of Appeals pointed to Kilburn's testimony that he informed his trial counsel that he wanted to use his head injury as a defense, but that she informed him that it would not help him. (R. 12-4, at 71-72). The Kentucky Court of Appeals further noted that Attorney Jones testified at the evidentiary hearing that Kilburn had informed her of his alleged blackout, and that she accordingly hired a psychologist as an expert witness to examine Kilburn, but the psychologist's expert opinion did not support Kilburn's defense or the blackout theory. (R. 12-4, at 72). The Kentucky Court of Appeals concluded that “[c]onsequently, contrary to Kilburn's allegations, counsel did investigate the use of the head injury and blackout theory as a possible defense[.]” (Id.). Nonetheless, “Kilburn does not show how the result of his trial would have been different if any other experts had been consulted concerning his defense theory.” Applying the prejudice prong of the Strickland IAC test, the Kentucky Court of Appeals concluded that “this ineffective assistance of counsel claim lacks merit because this issue of the head injury and the blackout theory of defense has been properly addressed and Kilburn cannot show that the result of his trial would have been otherwise different.” (R. 12-4, at 72). Kilburn did not seek to appeal the decision of the Kentucky Court of Appeals to the Kentucky Supreme Court, but rather initiated the instant proceedings approximately 30 days after the July 21, 2017 decision of the Kentucky Court of Appeals.

         2. Federal Post-Conviction Proceedings

         In the instant action, Petitioner Kilburn filed his federal Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 24, 2017. (R. 1). Kilburn's Petition is accompanied by a 12-page “Standard of Review” brief discussing the applicable law on § 2254 IAC claims, followed by a 6-page handwritten “Memorandum of Facts and Laws of the Case.” (R. 1-1; R. 1-2). Construing Kilburn's pro se submissions broadly, [9] Kilburn reasserts by reference the same 10 claims of ineffective assistance of counsel raised in his August 1, 2014 RCr 11.42 motion filed with the Floyd Circuit Court. See section I.B.1, at n.7, supra; (R. 1-2, at 2; R. 12-4, at 22). Echoing his assertions on direct appeal, Kilburn also asserts that he is entitled to habeas relief because the Kentucky Supreme Court erred in affirming the trial court's rulings (1) denying defense counsel's motion for change of venue in violation of Due Process under the Sixth Amendment to the U.S. Constitution (R. 1, at 7), (2) denying defense counsel's motion to strike two jurors, and (3) rejecting Kilburn's argument regarding double jeopardy. (R. 1-2, at 2).

         In support of his allegations, Kilburn returns to the subject of his alleged head injury previously raised in the Kentucky courts. Kilburn repeats that he “was a chronic alcoholic and suffered a mental disability from constant alcohol use.” (R. 1, at 5). Additionally, he reiterates his allegation that he “suffered a concussion prior to the auto accident which caused black-outs.” (Id.). In his supporting memorandum, Kilburn adds that he “was involved in an auto accident while he was intoxicated and which also had an impact due to [a] previous head injury - which caused black-outs, that along with several medications being mixed together - resulted in a head-on collision with the other vehicle.” (R. 1-2, at 3). Kilburn resurrects here the argument alleged during his RCr 11.42 motion proceedings that trial counsel, Attorney Jones, “simply did not apply any defensive strategy or a defense with regards to the above.” (R. 1-2, at 3). He asserts that trial counsel was “ineffective ...


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