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Elery v. Smith

United States District Court, W.D. Kentucky, Louisville Division

June 17, 2019



          Greg N. Stivers, Chief Judge United States District Court

         This matter is before the Court on Petitioner's Objection (DN 24) to the Magistrate Judge's Findings of Fact, Conclusions of Law, and Recommendation (“R&R”) (DN 20) recommending that his Petition for Writ of Habeas Corpus be denied. For the reasons provided below, Petitioner's Objection is OVERRULED.

         I. BACKGROUND

         Petitioner Michael A. Elery (“Elery”) was convicted of murder, tampering with physical evidence, and violating a protective order in Jefferson Circuit Court, and his conviction was upheld by the Kentucky Supreme Court on June 21, 2012. Elery v. Commonwealth, 368 S.W.3d 78, 100 (Ky. 2012). Elery filed his Petition under 28 U.S.C. § 2254 on July 8, 2016, with six claims collaterally attacking his sentence which the Kentucky Supreme Court previously rejected, as well as additional claims of ineffective assistance of counsel. (Pet. Writ Habeas Corpus 1-20, DN 1).

         The Magistrate Judge considered Elery's claims and rejected them in turn. The Magistrate Judge found no error in the conclusion that an imperfect redaction at trial containing statements from Elery regarding an imagined murder was a harmless error because the statements would not have had a substantial effect on the jury's deliberations. (R&R 2, DN 20). Next, the Magistrate Judge agreed with the Kentucky Supreme Court that it was harmless error where the jury instructions on first-degree manslaughter included extreme emotional disturbance as an element. (R&R 3-4). Elery was also found to have procedurally defaulted on his claims that the trial court erred by not including a clarifying instruction because the Kentucky Supreme Court's decision rested on a state procedural bar. (R&R 5). The Magistrate Judge further agreed with the Kentucky Supreme Court that the trial court's decision to bar the admission of results of a breathalyzer test was harmless error. (R&R 5). The Magistrate Judge next determined that Elery's claim that the trial court erred in striking a juror over his objections was not a cognizable claim under 28 U.S.C. § 2254. (R&R 6). The Magistrate Judge also found Elery procedurally defaulted on his claim that a trial error occurred when the victim's cousin was permitted to give an impact statement because the Kentucky Supreme Court rested its conclusion on a state procedural bar. (R&R 7). Finally, the Magistrate Judge deferred to the Kentucky courts' analyses and rejected Elery's reiterated claims of ineffective assistance of counsel. (R&R 8-10). The Magistrate Judge also denied Elery's new ineffective assistance claims. (R&R 10-11).

         Elery now makes seven objections to the Magistrate Judge's findings and conclusions. Elery contends that “[t]he erroneous admission of references to a second, uncharged murder had a substantial and injurious effect on the jury's verdict and recommended sentence” because it left the jury with the impression that Elery committed a second murder. (Pl.'s Obj. 6, DN 24). Elery next argues that the inclusion of an additional element in the jury instruction for first-degree manslaughter was not harmless error because, “[b]y requiring the jury to find more than necessary under the law to find first-degree manslaughter, the burden to prove [extreme emotional disturbance] was shifted to [Elery], and [he] was effectively denied this lesser included offense.” (Pl.'s Obj. 9). Elery also argues the Magistrate Judge incorrectly ruled his request for the clarifying jury instruction was procedurally defaulted because he requested the instruction at trial, thus preserving his right to challenge the error. (Pl.'s Obj. 11). Elery disagrees that barring the breathalyzer results was harmless error because he “sought to introduce this evidence to prove the extent of his intoxication, explain his actions, and attack the credibility of his own alleged statements.” (Pl.'s Obj. 12). Elery further objects to the Magistrate Judge's conclusion that striking a juror is not a cognizable claim under 28 U.S.C. § 2254 because this error denied him an impartial jury and fair trial. (Pl.'s Obj. 13). Elery also disagrees with the Magistrate Judge's conclusion that he procedurally defaulted his claim that the victim impact statement because “[t]he issue was preserved by defense counsel's objection and motion for mistrial following [her] testimony . . . .” (Pl.'s Obj. 14). Elery finally argues that he received ineffective assistance from trial counsel because they failed to file proper pretrial suppression motions, adequately prevent the introduction of evidence pertaining to the imagined murder, object to erroneous jury instructions, defend against unauthorized penalties, and investigate or present an effective defense. (Pl.'s Obj. 16).


         This Court reviews de novo the portions of the R&R to which objections have been filed, and the Court may accept, reject, modify the R&R, in whole or in part. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). While specific objections are entitled to de novo review, “poorly drafted objections, general objections, or objections that require a judge's interpretation should be afforded no effect and are insufficient to preserve the right of appeal.” Bardwell v. Colvin, No. 5:15-CV-00196-GNS-LLK, 2017 WL 5885378, at *1 (W.D. Ky. Jan. 31, 2017) (internal quotation marks omitted) (citation omitted). As the Sixth Circuit has noted, “a general objection to a [magistrate judge's] report, which fails to specify the issues of contention, does not satisfy the requirement that an objection be filed. The objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) (citation omitted).


         For this Court to grant habeas relief, the state court's adjudication of Elery's case must have resulted in a decision which “was contrary to, or involved an unreasonable application of, clearly established Federal law, ” or which “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).

         A. Imaginary Murder

         Elery's objects that the trial court's imperfect redaction of his statements to police containing a confession that he had committed an imaginary murder was not harmless error because it suggested to the jury that he had committed a murder which was being hidden from them. (Pl.'s Obj. 5). In determining whether a conviction must be set aside because of federal constitutional error of the trial type, the Court applies the standard set forth in Kotteakos v. United States, 328 U.S. 750 (1946). Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). Under this standard, the inquiry is whether the error “had substantial and injurious effect or influence in determining the jury's verdict.” Kotteakos, 328 U.S. at 776.

         The Kentucky Supreme Court, applying Kotteakos, found that ‘[n]one of the statements . . . could have had a substantial effect on the jury.” Elery, 368 S.W.3d at 88. The Kentucky Supreme Court concluded “[t]here is little to no risk that the jury would have considered this evidence, inferred that another crime occurred, and convicted” Elery of the murder of the known victim. Id. In light of this, the Court can neither conclude that the Kentucky Supreme Court's decision was contrary to or involved the unreasonable application of the law, nor that it was based on ...

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