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Hall v. Green

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

August 20, 2019

ROGER DEAN HALL, Petitioner,
v.
JAMES DAVID GREEN, WARDEN,[1] Respondent.

          REPORT AND RECOMMENDATION

          Candace J. Smith United States Magistrate Judge.

         Petitioner Roger Dean Hall has filed a pro se Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus (R. 1). Respondent filed an Answer (R. 9), to which Hall filed a Reply (R. 11). Having all relevant documents before the Court, the matter is now ripe for consideration and preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b). For the reasons set forth below, it will be recommended that Hall's § 2254 Petition be denied.

         I. PROCEDURAL BACKGROUND

         In December 2008, a grand jury returned an Indictment in the Harlan County, Kentucky, Circuit Court, case number 08-CR-710, alleging that Petitioner Hall unlawfully aided Raymond Harris in the commission of the murder of Harlan County Sherriff Paul Browning, Jr. by providing Harris with money and a handgun and, further, that Petitioner aided Dwayne Harris in the commission of drug trafficking by “taking payoffs in return for providing assistance in” drug trafficking activities. (R. 9-2, at 1-2). The Indictment charged Petitioner with two counts of criminal conspiracy to commit murder and one count of complicity to commit trafficking in a controlled substance in the first degree. (Id.). On September 29, 2009, by a criminal information in Harlan Circuit Court case number 09-CR-572, Petitioner was also charged with three counts of trafficking in a controlled substance in the first degree. (Id. at 4-5).

         In 2009, Petitioner entered an Alford plea to amended charges in both cases of two counts of criminal facilitation to commit murder and four counts of complicity to traffic in a controlled substance in the second degree. (Id. at 7-17, 58). Petitioner appeared in Harlan Circuit Court on November 2, 2009, to plead guilty, and a final judgment was entered on November 9, 2009 sentencing Petitioner to five years on each of the six counts, to be served consecutively, for a total sentence of imprisonment of thirty years as recommended by the plea agreement. (Id. at 15-17; 58). Under the plea agreement, Petitioner agreed to waive the maximum sentence limit for consecutive Class D Felonies under Kentucky law. (Id. at 12, 60-61).

         Petitioner did not file a direct appeal. Rather, almost six years after his judgment, on May 11, 2015, Petitioner filed a pro se “Motion to Correct Invalid Sentence” under Kentucky Rule of Criminal Procedure (“RCr”) 11.02, which the circuit court construed as a motion brought pursuant to RCr 11.42 because the former rule “provides no relief from sentencing mistakes.” (Id. at 18-25, 58). The Harlan Circuit Court entered an order on August 3, 2015, denying the motion as untimely. (Id. at 25-26, 59). On April 5, 2016, the Kentucky Court of Appeals affirmed the decision of the Harlan Circuit Court, finding the motion untimely and further holding that Hall's argument that his sentence was invalid failed on the merits under Kentucky law. (Id. at 57-61). On August 17, 2016, the Kentucky Supreme Court denied discretionary review. (Id. at 63).

         On July 14, 2017, Petitioner Hall, pro se, filed with this Court his Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus. (R. 1). In his Petition, Hall asserts that his thirty-year sentence is now in violation of state law based on the Kentucky Supreme Court's ruling in McClanahan v. Commonwealth, 308 S.W.3d 694 (Ky. 2010), and that the “Harlan Circuit Court abused it's authority when it refused to correct” his unlawful sentence. (Id. at 7; R. 1-1, at 9-13). He further argues that because his sentence is now unlawful, he is being imprisoned in violation of Supreme Court precedent, the Due Process Clause of the Fifth and Fourteenth Amendments, and the Eighth Amendment of the United States Constitution, as well as the Kentucky Constitution. (R. 1-1, at 8-13). He also asserts that the Harlan Circuit Court abused its discretion when it amended Petitioner's motion from one brought pursuant to RCr 11.02 to one brought under RCr 11.42 because under the Kentucky Supreme Court's ruling in Winstead v. Commonwealth, 327 S.W.3d 479 (Ky. 2010), “sentencing errors are not reviewable under a RCr[] 11.42 rule.” (R. 1, at 7; Id. at 6).

         II. ANALYSIS

         A. The § 2254 Petition is Untimely.

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a petitioner generally has only one year in which to file a federal petition for writ of habeas corpus. See 28 U.S.C. § 2244(d). The AEDPA statute of limitations begins to run from the latest of four circumstances:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1)(A)-(D). The circumstance applicable to Petitioner's case is “the date on which the [state court] judgment became final by the conclusion of direct review or the expiration of the time for ...


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