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Kelly v. Smith

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

May 21, 2019

VIRGIL KELLY, Petitioner,



         Virgil Kelly has petitioned for habeas corpus relief pursuant to 28 U.S.C. § 2254. [DE 1.] Also pending before the Court are Kelly's motions for miscellaneous relief, including a motion for an evidentiary hearing, a motion for the appointment of counsel, and a motion to expand the record or in the alternative, for the Court to take judicial notice of certain facts. Consistent with local practice, the motions were referred to Magistrate Judge Edward B. Atkins. The matter is now before the Court on the Magistrate's Report and Recommendation (“R&R”) [DE 26] and Kelly's objections. [DE 30.] Having conducted a de novo review of the portions of the R&R to which Kelly objects, the Court will adopt the Magistrate's recommended disposition [DE 26] and overrule Kelly's objections. Accordingly, Kelly's petition for § 2254 relief [DE 1] is denied, as are his requests for an evidentiary hearing, appointed counsel, an expansion of the record, and the taking of judicial notice. Further, the Court REFUSES to issue a certificate of appealability.


         The Kentucky Supreme Court summarized the facts of this case in the following manner:

This case arose out of an incident that occurred on the morning of April 11, 2003 at the Wabash Apartments in Winchester, Kentucky. Appellant [Virgil Kelly], who resided at the apartment complex, entered the apartment of one of his neighbors, a woman we shall refer to as K.C., and attacked her.
Appellant and K.C. were not strangers. The two had met approximately one week prior to the incident when K.C. spent the weekend with Irene Barry, a friend and co-worker of hers who also lived in Wabash Apartments. That weekend, Appellant and the two women had spent a great deal of time together drinking beer and smoking crack cocaine. K.C. moved into the apartment building the following Thursday. That evening, K.C. invited Roger Combs, a man whom she had been seeing, to her apartment. Later that night, K.C., Combs, Barry, and Appellant spent several hours together drinking beer and smoking crack cocaine. At approximately 3:00 a.m. on Friday the group broke up, retiring to their individual apartments.
Combs, who had spent the night in K.C.'s apartment, awoke early the next morning and left the apartment complex because he was scheduled to be at work by 7:00 a.m. After Combs left the apartment, K.C. stayed awake to unpack boxes. K.C. and Barry were also scheduled to work that morning and had arranged for a ride to pick them up at 6:30 a.m. When their ride arrived, however, K.C. had decided that she was not going to work that day and Barry, who had overslept, told the driver to go on since she was not ready to go. Appellant, who was also awake, volunteered to drive Barry to work and he dropped her off there between 7:15 and 7:30 a.m. After dropping Barry off, Appellant returned to the apartment complex. From this point in the story, there are two very different accounts of what happened between K.C. and Appellant. In his statement to police, Appellant claimed that K.C. had invited him to come to her apartment after he dropped Barry at work. Appellant stated that when he arrived at K.C.'s apartment she invited him in and gave him a beer. He sat on the couch and K.C. sat down on a chair across the room from him. Appellant claims that K.C. was wearing only a bathrobe at the time, and that she engaged in sexually suggestive behavior, prompting him to move from the couch to K.C.'s bed. At this point, Appellant claims that K.C. “freaked out, ” jumped from her chair, and headed for the window next to her bed. Appellant further states that K.C. broke the window and jumped from it, landing on the concrete two stories below.
At trial, K.C. testified to a significantly different version of events. She stated that after Appellant dropped Barry at work he came to her apartment and asked for a beer. Appellant and K.C. were sitting in her apartment when Appellant exclaimed, “Show me your tits, and I'll tell you what Roger Combs said about you.” After K.C. refused, Appellant left her apartment.
Sometime later, K.C. was bending over to unpack a box when Appellant grabbed her from behind. Appellant, who was holding a knife, demanded that K.C. undress. She complied and asked him to put the knife away. After she was undressed, Appellant began swinging the knife, cutting K.C.'s hand. The cut was fairly deep and K.C. wrapped her hand in a pair of pajama pants to stop the bleeding. Appellant then directed K.C. to get on the bed and masturbate. After she began, Appellant, who was standing at the foot of her bed, exposed himself and also began to masturbate. Notably, there was no testimony indicating any physical sexual contact between K.C. and Appellant. K.C. then reached behind her head, pulled the window blinds from the wall, and threw them at Appellant. This prompted Appellant to lunge at K.C. with the knife, cutting her right leg and left arm. K.C. grabbed a coffee table, using it to shield her from Appellant's attacks. She then broke out the window and jumped to the parking lot below, breaking her leg in the fall.
In addition to K.C., several other witnesses also testified regarding the incident. James Tackett, the manager of the apartment complex, saw the victim immediately after she hit the ground and went to her aid. Tackett stated that he confronted Appellant and the two got in an altercation before Appellant headed toward the parking lot to get into his car. Tackett testified that he heard Appellant unsuccessfully trying to start his car, presumably in an attempt to flee. Dorothy Abshear, another resident of the apartment complex, testified that she heard the sound of breaking glass and went outside to see what was going on. At first, Abshear observed K.C.'s head protruding from the second-story window. K.C.'s head then went back inside the window, disappearing from view, before she reemerged and fell to the ground. Abshear stated that she had seen an African- American grab K.C. by the ankles and flip her out of the window. When Appellant emerged from K.C.'s apartment, he told Abshear that he had not done anything, that K.C. was crazy, and that she had jumped from the window.
Appellant was arrested and taken to the Winchester Police Department where he gave a lengthy, videotaped statement to police. Appellant claimed that he had not assaulted K.C. and reiterated that she had jumped from the window. During the interrogation, police informed Kelly that they had recovered a bloody knife from underneath the driver's seat of his car. DNA analysis later confirmed that the blood on the knife blade belonged to K.C. Consistent with her version of events, K.C.'s blood was also found inside the apartment, on her pajama bottoms and coffee table, and on Appellant's glasses and sweatpants.
Appellant was charged by the Clark County Grand Jury with first degree assault, attempted rape, and being a first-degree persistent felony offender. Before the trial, Appellant exhibited some unusual behavior which prompted his attorney to request and receive funds for a psychological evaluation of Appellant. After Appellant refused to cooperate with the psychologist hired by his attorney, the trial court ordered Appellant to undergo a competency evaluation at KCPC. Although Appellant was eventually evaluated at KCPC, no hearing was ever held by the trial court to determine his competency to stand trial.
Prior to trial, Appellant moved the court to redact inadmissible portions of the statement he gave to police following his arrest. A hearing was held on the motion and the trial court ruled separately on each suggested redaction, approving some and rejecting others. At trial, the jury was shown a partially-redacted videotape of Appellant's statement-audio on the videotape had been muted for statements that had been ruled inadmissible. During the trial, Appellant's counsel moved for a directed verdict on the offense of attempted first-degree rape. The trial court granted Appellant's motion as to the rape charge, but indicated that it would instruct the jury on the charge of sexual abuse in the first degree.
At the close of the evidence, the jury was instructed on charges of first-degree assault and first-degree sexual abuse. Appellant was found guilty of both offenses. In a separate sentencing phase, he was also found guilty of being a first-degree PFO, thereby enhancing the period of incarceration for his crimes, and was sentenced to forty years in prison as recommended by the jury. He appeals to this Court as a matter of right. Kelly v. Com., No. 2004-SC-000786-MR, 2006 WL 3386636, at *1-*3 (Ky. Nov. 22, 2006)

         On appeal, Kelly asserted that the state trial court made a number of critical mistakes. Among these were: (1) the failure to conduct a competency hearing even though the court had previously ordered a competency evaluation; (2) the failure to redact certain portions of Kelly's post-arrest interview with Winchester Police; (3) the denial of Kelly's motion for a mistrial after a state witness testified that Kelly was incarcerated when the two had spoken; (4) the failure to give the jury the proper instruction regarding sexual abuse in the first degree; (5) the decision to sentence Kelly as a persistent felony offender despite the fact that the state failed to show that he was over eighteen when the previous crimes were committed; (6) the failure to let the jury decide a crucial element of the assault in the first degree charge-whether the knife was a “deadly weapon” or a “dangerous instrument”; and (7) the denial of Kelly's motion for a directed verdict on the first-degree assault charge.

         Though affirming the judgment on all other grounds, the Kentucky Supreme Court determined that the state trial court erred by not conducting a competency hearing and remanded the case. On remand, the state trial court conducted a retrospective competency hearing, which resulted in the determination that Kelly was previously competent to stand trial. Kelly appealed his retrospective competency determination to the Kentucky Supreme Court, but to no avail.

         Kelly then attacked his conviction pursuant to RCr 11.42. His collateral motion, which raised several ineffective assistance of counsel claims, was rejected by the state trial court on October 13, 2013. The Kentucky Court of Appeals affirmed the trial court's ruling and the Kentucky Supreme Court, in its discretion, declined to review the matter. Having exhausted his state remedies, Kelly now petitions this Court for habeas relief pursuant to 28 U.S.C. § 2254.


         A. Motions for Miscellaneous Relief

         In addition to his § 2254 petition, Kelly filed several motions seeking miscellaneous relief, including a motion for an evidentiary hearing, a motion for the appointment of counsel, and a motion to expand the record or in the alternative, for the Court to take judicial notice of certain facts. The Court will now address each of these.

         First, as to whether Kelly is entitled to an evidentiary hearing concerning the alleged conflicts of his trial counsel, the Magistrate determined that Kelly had “failed to establish a factual basis for a conflict of interest due to a sexual relationship between his DPA counsel and the prosecutors of his case . . . .” The Magistrate, relying on § 2254(e)(2), further observed that Kelly's conflict of interest claim does not rely on a new, retroactive rule of constitutional law or the presence of facts that could have not been discovered. Based on Kelly's failure to satisfy § 2254(e)(2), the Magistrate recommended that this Court deny his request for an evidentiary hearing.

         Kelly objects to the recommendation, asserting that the Magistrate's invocation of § 2254(e)(2) was improper. According to Kelly, the Court should instead refer to the analytical framework set forth in Schriro v. Landrigan, 550 U.S. 465, 474 (2007). There, the Supreme Court held that when “deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Id. at 474. Applying this standard, Kelly argues that he has clearly established a factual basis for the existence or an improper relationship between his trial counsel and then Assistant Commonwealth Attorney, David Smith. This is so, Kelly argues, because he has shown that Jessica Hall, his trial counsel, went to work for the Commonwealth Attorney's Office within a year of the trial and she eventually married David Smith.

         The Court would like to note that the starting point for Kelly's evidentiary hearing request is neither § 2254(e)(2) nor Schiro. Instead, it is the Supreme Court's decision in Cullen v. Pinholster, 563 U.S. 170 (2011), which held that review under § 2254(d) is limited to the record before the state court that adjudicated the claim on the merits. Put plainly, if a petitioner's claim was adjudicated on the merits at the state level, a federal court sitting in habeas may not consider additional evidence-whether it come through an evidentiary hearing or otherwise. Bourne v. Curtin, 666 F.3d 411, 415 (6th Cir. 2012) (“Because the state court considered [defendant's] ineffectiveness argument on the merits, however, [defendant] is stuck with “the record that was before the state court . . . [defendant] is not entitled to an evidentiary hearing”) (internal citations omitted). The Pinholster Court also clarified that a federal district court should only consider whether to grant a substantive hearing using the factors enumerated in § 2254(e)(2) if the state court did not decide the claim under a review of the merits. Pinholster, 563 U.S. at 185-86 (“Section 2254(e)(2) continues to have force where § 2254(d)(1) does not bar federal habeas relief. . . . At a minimum, therefore, § 2254(e)(2) still restricts the discretion of federal habeas courts to consider new evidence when deciding claims that were not adjudicated on the merits in state court.”).

         In light of Pinholster-and the Sixth's Circuit's subsequent interpretation of it-the first question this Court must ask is whether the state court decided Kelly's conflict of interest claims on the merits. If the answer is yes, then the Court is forbidden from considering evidence that was not before the state court at the time it rendered its decision. If the answer is no, then the Court may wade into the waters of § 2254(e)(2). Upon review, the Court finds that the Kentucky Supreme Court evaluated Kelly's conflict of interest claims using the federal standard set forth in Strickland and therefore, addressed the claims on the merits. And because Kelly's conflict of interest claims were adjudicated on the merits, this Court is forbidden from considering evidence that the Kentucky Supreme Court did not have before it when considering the claims. An evidentiary hearing, therefore, would be pointless.

         With that, the Court turns to Kelly's request for appointed counsel. In the § 2254 context, the appointment of counsel is only mandatory when an evidentiary hearing is being held. Settle v. Lester, No. 12-1206-JDB-EGB, 2013 WL 1966438, at *1 (W.D. Tenn. May 10, 2013). Where an evidentiary hearing is not being conducted, as is the case here, the reviewing district court has ample discretion to determine whether the “interests of justice or due process” require the appointment of counsel. Mira v. Marshall, 806 F.2d 636, 638 (6th Cir. 1986). In exercising this discretion, the district court should consider the legal and factual complexity of the case and the petitioner's ability to investigate and present his claims. Sellers v. United States, 316 F.Supp.2d 516, 522 (E.D. Mich. 2004). A district court does not abuse its discretion in denying a request for court-appointed counsel where the issues can be resolved on the basis of the state court record.

         Here, the Magistrate determined that Kelly failed to produce evidence that the denial of counsel would infringe upon his due process rights. He further concluded, based on the nature of Kelly's pro se submissions to the Court, that Kelly has a “good understanding of the issues and the ability to forcefully and coherently present his contentions.” [DE 26, at 40] (citing LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987)). Accordingly, the Magistrate recommended that the Court deny Kelly's request for appointed counsel. Kelly has objected to the Magistrate's findings, but he does not make any arguments for why counsel is necessary in the absence of an evidentiary hearing. Rather, it appears his only argument is that the appointment of counsel is necessary here because an evidentiary hearing is also required. Upon consideration of the Magistrate's R&R and Kelly's contentions, the Court denies Kelly's request for appointed counsel.

         Lastly, Kelly asks the Court to expand the record to include his objection to the appointment of DPA counsel during his state collateral proceeding. [DE 21.] For reasons unknown, this submission was left out of the state court record. [DE 21.] Kelly asserts that this objection is pivotal because attached to it is a complaint showing that his trial counsel, Jessica Hall, now goes by “Jessica Hall Smith.” [DE 21.] Kelly contends that this document firmly establishes that Jessica Hall married then Assistant Commonwealth Attorney David Smith sometime before 2010.

         In the alternative, Kelly requests that the Court take judicial notice of the fact that Jessica Hall and David Smith were married in September of 2008. In support of his request, Kelly attached a marriage license showing that the two were indeed married. [DE 24-1.] Kelly maintains that the mere fact of this marriage is dispositive of his conflict of interest claim. Kelly argues that because Jessica Hall and David Smith were married in 2008, there must have been an illicit relationship between the two during his trial in 2004.

         The Magistrate declined Kelly's invitation to expand the record or in the alternative, take judicial notice of the fact that Jessica Hall and David Smith were married in September of 2008. As to the expansion of the record, the Magistrate correctly observed that Rule 7 of the Rules Governing Section 2254 Cases provides, in relevant part, “[i]f the petition is not dismissed, the judge may direct the parties to expand the record by submitting additional materials relating to the petition.” Because he recommended that the petition be denied in full, the Magistrate noted that if the Court adopted this recommendation, any motion to expand the record would be denied as moot under Rule 7. [DE 26, at 37.] Nonetheless, in the event this Court did not adopt his recommendation to dismiss Kelly's § 2254 petition, the Magistrate evaluated the request for a record expansion on the merits. Upon review, the Magistrate found that the state court objection that Kelly seeks to introduce provides no basis for his claim that his Jessica Hall and then Assistant Commonwealth Attorney David Smith engaged in an improper relationship during trial. The Magistrate used this same logic when refusing to take judicial notice of the marriage between the two parties.

         Kelly objects to the Magistrate's refusal to expand the record or in the alternative, take judicial notice of the marriage between Jessica Hall and David Smith in 2008. Kelly claims that the fact that Jessica Hall went to work for the Commonwealth Attorney after his trial and eventually married then Assistant Commonwealth Attorney David Smith undoubtedly shows that the two were improperly interacting during his trial. The Court, however, is unpersuaded by these arguments. The fact that Jessica Hall started working for the Commonwealth Attorney a year after Kelly's trial is not in and of itself improper. Moreover, the fact that Jessica Hall eventually married David Smith (who was not involved in Kelly's prosecution) does not lend itself to the determination that an improper relationship existed during trial. Accordingly, the Court denies Kelly's requests. And in any event, for reasons detailed below, the Court will dismiss Kelly's habeas petition, making the motion to expand the record moot. See Wilson v. Pennsylvania Bd. of Prob. & Parole, 939 F.Supp.2d 512, 516 (E.D. Pa. 2013) (“Because the Court will dismiss the Habeas Petition, this motion [to expand the record] is moot.”).

         Having addressed Kelly's miscellaneous requests for relief, the Court will now evaluate the substance ...

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