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Kilburn v. Smith

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

June 5, 2019

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

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves United States District Judge.

         Marion Kilburn has filed a petition for a writ of habeas corpus in which he seeks to vacate his state court convictions arising out of a drunk driving incident. [Record No. 1] Consistent with local practice, Kilburn's petition was referred to a United States Magistrate Judge for review and issuance of a report pursuant to 28 U.S.C. § 636(b)(1)(B). United States Magistrate Judge Candace J. Smith issued her Report and Recommendation (“R&R”) on April 22, 2019, recommending that Kilburn's petition be denied. [Record No. 18] Kilburn filed timely objections to the R&R after being granted an extension of time in which to do so. [Record No. 21] After careful review of this matter, the Court will deny the relief sought.

         I.

         Petitioner Kilburn caused a motor vehicle accident on February 4, 2011, while driving with a blood alcohol level nearly three times the legal limit. More specifically, he drove at an excessive speed on the wrong side of the highway and struck another vehicle head-on, seriously injuring an adult and a five-year-old child. Following a jury trial in the Floyd Circuit Court, Kilburn was convicted of first-degree assault, fourth-degree assault, driving under the influence, operating on a suspended license (second offense), operating a motor vehicle without insurance, and being a persistent felony offender in the first-degree. He was sentenced to 24 years' imprisonment.[1]

         Kilburn filed a pro se motion to vacate his sentence pursuant to Rule 11.42 of the Kentucky Rules of Criminal Procedure. The Floyd Circuit Court appointed counsel for Kilburn and held an evidentiary hearing. The court ultimately rejected Kilburn's various ineffective-assistance-of-counsel claims, concluding that trial attorney Emma Jones “did what she could with the case she had to work with.” [Record No. 1-5]

         Kilburn appealed this decision, but raised the single claim that Jones was ineffective for failing to pursue a defense theory based on a head injury that he allegedly suffered the day before the accident. The Kentucky Court of Appeals rejected the claim, noting that Jones had acted reasonably with respect to Kilburn's alleged head injury or “black-out” theory. [Record No. 1-4] To wit, she retained an expert to explore the theory, but ultimately did not present it to the jury. The court explained that doing so would have highlighted Kilburn's history of alcohol use, and would have opened the door for the Commonwealth to present Kilburn's “significant history of drinking-related charges.” Id.

         Kilburn subsequently filed a petition in this Court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2254. Despite his assertion of the single claim before the state appellate court, Kilburn attempted to resurrect all the claims he brought in his original Rule 11.42 motion before the Floyd Circuit Court. However, the magistrate judge correctly noted that “[a] petitioner who had the opportunity to raise constitutional issues in a state postconviction proceeding but failed to do so has waived those claims for purposes of federal habeas corpus review unless he can demonstrate cause for the procedural default and actual prejudice from the alleged constitutional error.” [Record No. 18, p. 29] Despite the probable waiver, the magistrate judge then considered the additional claims but determined that they failed on the merits.

         II.

         Although this Court must make a de novo determination of those portions of the magistrate judge's recommendations to which objections are made, 28 U.S.C. § 636(b)(1)(C), “[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.” Thomas v. Arn, 474 U.S. 140, 150 (1985). Accordingly, the Court's analysis is limited to the issues raised in Kilburn's objections to the R&R.

         III.

         Kilburn asserts that “he fell and hit his head the day before the accident, and that he did not remember anything until he woke up in the hospital nine to ten days later.” [Record No. 21, p. 3] He contends that Jones knew that he wanted to advance this theory at trial, and that she performed ineffectively when she failed to comply with his request. Kilburn does not dispute that Jones hired a psychologist to evaluate him, however, and the expert's opinion ultimately was not helpful to his case. Kilburn did not recall disagreeing with Jones about the decision not to call the expert.

         “A writ of habeas corpus on behalf of a state prisoner may be granted only under highly limited circumstances.” Stojetz v. Ishee, 892 F.3d 175, 190 (6th Cir. 2018). Specifically, courts should not grant a habeas petition unless the state court's adjudication of the claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

         Kilburn concedes that the state court did not reach a decision contrary to, or unreasonably apply, clearly established federal law. Instead, he claims that the state court's denial of his motion to vacate was based on an unreasonable determination of the facts in light of the evidence before it. This is a difficult burden to satisfy because the state court's factual determinations are presumed to be correct. See § 2254(e)(1). But even without the presumption in its favor, it is clear that the state court made a reasonable decision concerning the adequacy of Jones' performance.

         Kilburn contends that Jones provided ineffective assistance when she consulted with a psychologist rather than “an expert necessary to explore the neurophysiological medical issues” present in the case. The state court correctly analyzed Kilburn's claim under Strickland v. Washington, which requires him to show that counsel's ...


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