JOSUE MARQUEZ AREVALO v. RANDY WHITE, Warden
No. 5:14-CV-415-HRW-HAI
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION LEXINGTON
February 23, 2016
RECOMMENDED DISPOSITION
In 2007, following a jury trial, Petitioner Josue Marquez Arevalo was convicted of murder and sentenced to imprisonment for forty years. Petitioner appealed to the Supreme Court of Kentucky, which affirmed his conviction. Arevalo v. Commonwealth, No. 2007-SC-651-MR, 2008 WL 5051611 (Ky. Nov. 26, 2008). Petitioner then filed a motion for post-conviction relief under
On October 17, 2014, Petitioner filed a pro se petition under
The Supreme Court of Kentucky summarized the underlying facts as follows:
On March 14, 2006, Lexington Police responded to a call reporting a shooting at 828 Ward Drive. The 911 call came from a neighbor named Juan Villa, who did not witness the shooting but heard the gunshots. When the police arrived on the scene, they found that the deceased, Pedro Lilly, had been shot to death while seated in his car in his driveway. An autopsy revealed that Lilly had been shot four times.
At the scene, police encountered Carmella Arevalo, Lilly‘s paramour, repeatedly screaming, “Josue shot my Pedro” in Spanish. Subsequently, during a recorded interview with Carmella, she stated that after hearing the gunshots, she looked out her door and saw her son, Josue Arevalo, running to his car. Police questioned several other witnesses at the scene, none of whom claimed to have seen Josue or anyone else shoot Lilly. However, three of these witnesses, Juana Lopez, Eduardo Cortez, and Sixto Roblero, testified that they saw Josue running and getting into his car after the shooting, although none of them saw him with a weapon. An acquaintance of Josue, Matthew Robey, testified that in late 2005, Josue came to his house looking to obtain a gun. Robey testified that Josue said he wanted a gun because he believed his stepfather had raped him when he (Josue) was drunk and had passed out. Andrea Croom testified that Josue had asked her if she knew where he could get a gun because he “wanted to kill a Mexican.” Two other witnesses, Lynn Smith and Melissa Rogers, testified that Josue had told them that he was going to kill or hurt a “fucking Mexican.” Smith and Croom both stated that they saw Josue with a gun prior to the shooting that looked like the gun the prosecution claimed was the murder weapon at trial.
In Josue‘s statement to police, he denied shooting Lilly and maintained that he was at his home on Race Street at the time of the shooting. A search of Josue‘s home after the shooting revealed a gun and ammunition. The fingerprints on the gun matched Josue‘s fingerprints, and the gun was determined to be the gun that fired the bullets recovered from the scene and from Lilly‘s body.
On May 19, 2006, Josue Arevalo was indicted for the murder of Pedro Lilly. Pursuant to a jury trial on July 23-24, 2007, Josue was found guilty of murder and sentenced to forty (40) years imprisonment.
D.E. 23-9 at 2-3. On direct appeal, the Supreme Court of Kentucky affirmed his conviction. Id. at 14.
Petitioner then filed a pro se motion for post-conviction relief under
In his
- The Petitioner has been denied due process and equal protection of the law in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution; as a result of the department of public advocacy‘s abandonment of the Petitioner‘s case after supplementing the pleadings, knowing the Petitioner was unable to speak or write English fluently. D.E. 1 at 6-7.
- The Petitioner has been denied his Fifth, Sixth, Eighth, and Fourteenth Amendment rights to the United States Constitution and protected rights under international law by violations of Article 36 of the Vienna Convention on Consular Relations because the trial court, Lexington Police Department, and the Commonwealth of Kentucky, failed, and refused to inform the Petitioner of his protected right to request aide and assistance from the Mexican Consult. Id. at 9-10.
- The Petitioner was denied due process under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, as a result of ineffective assistance of counsel. Id. at 11.
- The Petitioner was denied due process under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution by the denial of evidence of actual innocence. Id. at 13.
- The Petitioner was denied due process under the Sixth, and Fourteenth Amendments to the United States Constitution, when there were no gunpowder residue tests performed on the petitioner to determine whether or not he had fired a weapon. Id. at 15.
- The Petitioner was denied due process under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution when he was denied the right and services of a defense expert witness. Id.
The Petitioner was denied due process under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, when there was a lack of evidence to support a finding of guilt on the offense charged. Id. at 16. - The Petitioner was denied due process under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, when the Commonwealth was allowed to use Ms. Carmella Arevalo‘s “Excited Utterance” as to the Petitioner being the shooter, when she had not witnessed the shooting and it was merely her “speculation“- especially since she knew of no motive the petitioner had to actually kill the “victim.” Id. at 17.
- The Petitioner was denied due process under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, as a result of cumulative error. Id. at 8.
On April 14, 2015, the Commonwealth, through counsel, filed a memorandum opposing Petitioner‘s
II. DISCUSSION
In general, a state prisoner has a statutory right to collaterally attack his conviction or sentence. See West v. Bell, 242 F.3d 338, 346 (6th Cir. 2001) (stating that
A. Standard of Review and Deference Due to State Court Decisions
The Court recognizes that Petitioner is proceeding pro se, without the assistance of an attorney. The Court construes pro se petitions more leniently than petitions drafted with assistance of counsel. Castro v. United States, 540 U.S. 375, 381-83 (2003); Franklin v. Rose, 765 F.2d 82, 85 (6th Cir. 1985). A document filed pro se is to be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
The Antiterrorism and Effective Death Penalty Act, Pub L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA“), applies to all habeas corpus petitions filed after April 24, 1996, and requires “heightened respect” for legal and factual determinations made by state courts. See Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998).
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) 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
(2) 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.
Several of Petitioner‘s Grounds for relief involve alleged ineffective assistance of counsel. An ineffective-assistance-of-counsel claim presents a mixed question of law and fact. Mitchell v. Mason, 325 F.3d 732, 738 (6th Cir. 2003). To successfully assert an ineffective assistance claim, a defendant must prove both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). To prove deficient performance, a defendant must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. A defendant meets this burden by showing “that counsel‘s representation fell below an objective standard of reasonableness” as measured under “prevailing professional norms” and evaluated “considering all the circumstances.” Id. at 688.
However, a reviewing court may not second-guess trial counsel‘s strategic decisions. Moss v. Hofbauer, 286 F.3d 851, 859 (6th Cir. 2002). Thus, “a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (internal quotations omitted). “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‘s challenged conduct, and to evaluate the conduct from counsel‘s perspective at the time.” Id.
In order to prove prejudice under the second prong of Strickland, a defendant “must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Thus, “[a]n error by
The Supreme Court has repeatedly commented on the interaction between AEDPA deference under
In this case, the Kentucky Court of Appeals accurately described the Strickland standard and accurately allocated the burden to Petitioner when it analyzed and denied his ineffective-assistance-of-counsel claims. D.E. 1-2 at 47.
C. Petitioner‘s Grounds for Relief
1. Ground One: Violation of Due Process Related to Counsel‘s Abandonment of the Case
Petitioner‘s first Ground for relief relates to the withdrawal of the Department of Public Advocacy (“DPA“) during his post-conviction proceedings. According to Petitioner, the DPA
The Court of Appeals of Kentucky addressed this argument in its opinion affirming the Fayette Circuit Court‘s denial of Petitioner‘s
As his first basis for appeal, [Petitioner] argues that the Department of Public Advocacy (DPA) violated his right to counsel by withdrawing from this matter despite his difficulty with the English language. We disagree. Our United States Supreme Court has clearly held that there is no federal constitutional right to appointed counsel in state post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Indeed, pursuant to Kentucky Revised Statutes (KRS) 31.110, the DPA is required to move for withdrawal in a post-conviction proceeding where there is a determination that the proceeding is “not a proceeding that a reasonable person with adequate means would be willing to bring at his own expense.”
KRS 31.110(2)(c) .
D.E. 1-2 at 49. Based on these findings and analysis, the Court of Appeals found that “the DPA complied with its statutory duty in withdrawing from representation” and affirmed the trial court‘s findings. Id.
Petitioner‘s claim must be denied because the state court‘s decision was not an unreasonable application of clearly established federal law. Simply put, Petitioner‘s argument that he was entitled to counsel during his post-conviction proceeding is incorrect. As the Court of Appeals correctly stated, “[t]he Constitution does not guarantee counsel on [state] collateral review[.]” Brooks v. Bobby, 660 F.3d 959, 965 (6th Cir. 2011) (citing Finley, 481 U.S. at 555).
Petitioner argues that, despite this, the Court of Appeals “never addressed the ‘totality’ of the circumstances, and the known fact this Petitioner was a non-English speaking prisoner.” D.E. 1-1 at 9. However, he has provided no federal law to suggest that this entitles him to counsel during his post-conviction proceeding, and as he acknowledges in his reply, the “Supreme Court has never addressed an issue where the Petitioner is unable to speak or write English.” D.E. 26 at 5-6. Petitioner cites to Lewis v. Casey, 518 U.S. 343 (1987), for the proposition that he has been denied access to the courts. D.E. 1-1 at 9-10. However there is no evidence to suggest that he has been unable to access the courts. In fact, the record supports the opposite conclusion. He has had full and unfettered access to the courts at each stage in his case.
Moreover, to the extent Petitioner alleges that his indigent status affects his right to counsel in this matter, he is incorrect. The Court in Finley specifically found that an indigent petitioner does not have a right to counsel during a post-conviction proceeding. See Finley, 481 U.S. at 555. Petitioner has failed to show that the Court of Appeals decision was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” See Harrington v. Richter, 562 U.S. 86, 103 (2011). Accordingly, this claim fails.
2. Ground Two: Violation of Due Process Related to Alleged Violations of the Vienna Convention
In his next claim for relief, Petitioner alleges that his rights under the Vienna Convention were violated. D.E. 1 at 9-10; D.E. 1-1 at 11. According to Petitioner, the Vienna Convention “bestows a private, judicially-enforceable right on Foreign Nationals to consult with Consular Officials.” D.E. 1-1 at 11. He asserts that he “was not informed by the Police at the time of his
The Court of Appeals of Kentucky addressed this argument in its opinion affirming the Fayette Circuit Court‘s denial of Petitioner‘s
As his second basis for appeal, [Petitioner] asserts an alleged violation of the Vienna Convention. More specifically, he alleges that the police, the trial court, and the Commonwealth failed to inform him that he could request aide from the Mexican Consulate. As noted, during the course of the evidentiary hearing below, [Petitioner] alleged that his attorney did not inform him that he could seek assistance from the Consulate, to which his attorney responded that he did not become involved in the case until the proceedings had reached the circuit court, by which time [Petitioner] had obtained private counsel.
In reviewing this issue, we note first that this is a claim which [Petitioner] should have raised on direct appeal. Allegations against the police and the trial court are not the proper subject of an ineffective assistance of counsel claim pursuant to
RCr 11.42 . Our courts have repeatedly held that the failure to raise a claim in the appropriate forum must lead to denial of the claim. This includes claims made under the Vienna Convention. Medellin v. Texas, 552 U.S. 491 (2008).
D.E. 1-2 at 50. On this basis, the Court of Appeals affirmed. Id. The Commonwealth argues that, because the Court of Appeals found Petitioner‘s claim to be procedurally defaulted, this Court should not consider it. D.E. 23 at 16-17.
Federal courts will not consider procedurally defaulted claims on the merits, unless the petitioner can demonstrate cause for the default and actual prejudice, or that failing to review the claim would result in a fundamental miscarriage of justice. Williams v. Anderson, 460 F.3d 789, 805-06 (6th Cir. 2006) (citing Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir. 2006)); Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Procedural default arises in two ways. The first way, not relevant here, is that “a petitioner may procedurally default a claim by failing to raise a claim in state court, and pursue that claim through the state‘s ‘ordinary appellate review
Second, applicable here, a Petitioner may procedurally default a claim by failing to conform to relevant state procedural rules in presenting his claim in state court. Id. (citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)). To determine if a claim has been procedurally defaulted in this way, the Sixth Circuit has articulated a four-part test:
(1) whether there is a state procedural rule that is applicable to the petitioner‘s claim; (2) whether the petitioner failed to comply with that rule; (3) whether the procedural rule was actually enforced in the petitioner‘s case; and (4) whether the state procedural forfeiture is an adequate and independent state ground on which the state can rely to foreclose review of a federal constitutional claim.
Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005). “[A] procedural default does not bar consideration of a federal claim on habeas corpus review unless the last state court rendering a reasoned opinion in the case ‘clearly and expressly states that its judgment rests on a state procedural bar.‘” Frazier v. Huffman, 343 F.3d 780, 791 (6th Cir. 2003) (quoting Harris v. Reed, 489 U.S. 255, 263 (1989)). Thus, “where a petitioner raised a claim in the state court but in violation of a state‘s procedural rule, a state court must expressly reject the claim on that procedural ground for a federal court to deem the claim defaulted.” Thompson v. Bell, 580 F.3d 423, 437 (6th Cir. 2009). In order to be “adequate,” “[a] state procedural rule must be ‘firmly established and regularly followed[.]‘” Wilson v. Mitchell, 498 F.3d 491, 499 (6th Cir. 2007) (quoting Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004)). Finally, “[a] state procedural rule is an independent ground when it does not rely on federal law.” Id. (citing Coleman v. Thompson, 501 U.S. 722, 732 (1991)).
Under Kentucky law, a defendant may file a post-conviction motion for relief from judgment within three years of the entry of final judgment.
Again, in cases in which a petitioner has defaulted his claims “pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). “The cause and prejudice standard is a two-part test in which the petitioner must: (1) present a substantial reason to excuse the default, and (2) show that he was actually prejudiced as a result
Therefore, “[i]n general, constitutionally ineffective assistance of counsel can constitute cause for procedural default.” Munson v. Kapture, 384 F.3d 310, 316 (6th Cir. 2004) (citing Rust v. Zent, 17 F.3d 155, 161 (6th Cir. 1994)). An attempt to use ineffective assistance as cause is governed by the Strickland standard. Id. Thus, Petitioner must establish Strickland deficient performance and prejudice. It should be noted that, while Petitioner must meet the deferential AEDPA standard with respect to any independent ineffective assistance of counsel claim, “he need not do so to claim ineffective assistance for the purpose of establishing cause.” Joseph v. Coyle, 469 F.3d 441, 459 (6th Cir. 2006) (citing Fischetti v. Johnson, 384 F.3d 140, 154-55 (3d Cir. 2004).
A showing of actual prejudice requires that a petitioner has the burden to at least demonstrate “not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982). Whenever a petitioner seeks to excuse his default on the ground of ineffective assistance of counsel, he necessarily, in order to establish ineffective assistance, must meet the Strickland prejudice standard. “[E]stablishing Strickland prejudice likewise establishes prejudice for the purposes of
In his reply, Petitioner argues that he “had no say in the issues presented in Direct Appeal.” D.E. 26 at 6-7. Moreover, Petitioner asserts that “[n]ot only was he not consulted in regards to the issues raised; he was unable to read English, and therefore, unable to understand the issues raised.” Id. at 7. He states that “[n]o one explained the issues to the Petitioner,” and that he has “been denied all Spanish Speaking Assistance in this Review[.]” Id. While Petitioner does not specifically allege that this provides cause to excuse the procedural default, the Court will liberally construe his argument as two-fold. First, Petitioner appears to argue that he was not in control of what issues were raised on direct appeal, and thus it was ineffective assistance for counsel to fail to raise the Vienna Convention issue. Second, Petitioner asserts that because of his limited English, his procedural default should be ignored.
Each of Petitioner‘s arguments fail. First, Petitioner is unable to assert this claim of ineffective assistance of counsel as cause for his procedural default. A claim of ineffective assistance “must be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.” Bechtol v. Prelesnik, 568 F. App‘x 441, 448 (6th Cir. 2014) (quoting Edwards v. Carpenter, 529 U.S. 446, 452 (2000)). It is clear from a review of Petitioner‘s briefs filed in his state post-conviction proceedings, that Petitioner did not raise a claim of ineffective assistance of counsel as it relates to raising this claim on direct appeal. See D.E. 23-4; D.E. 23-6. Therefore, Petitioner may not use this ineffective assistance claim as cause for his procedural default.
Thus, Petitioner cannot establish that it was deficient performance or prejudice for defense counsel to fail to raise this claim of ineffective assistance on direct appeal because it would not have been successful. “Appellate counsel cannot be found to be ineffective for ‘failure to raise an issue that lacks merit.‘” Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010) (citing Greer v. Mitchell, 264 F.3d 633, 676 (6th Cir. 2001)). This argument for cause based upon ineffective assistance of counsel fails.
If a federal prisoner is unable to show cause and prejudice, he may still be able to obtain review of his claims if his case fits within a narrow class of cases permitting review in order to prevent a fundamental miscarriage of justice, such as when the constitutional violation “has probably resulted in the conviction of one who is actually innocent.” See Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). “To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 327 (1995). The basis for this actual innocence claim must be “new reliable evidence…that was not presented at trial.” Id. at 324. “Petitioner bears the burden of proof on this issue by a preponderance of the evidence, and he must show not just that the evidence against him was weak, but that it was so weak that ‘no reasonable juror’ would have convicted him.” Lorentsen v. Hood, 223 F.3d 950, 954 (9th Cir. 2000) (quoting Dejan v. United States, 208 F.3d 682, 686 (8th Cir. 2000)).
These conclusory allegations are not enough to meet his burden to establish actual innocence. There was overwhelming evidence of Petitioner‘s guilt, most of which is not disputed by Petitioner. Following the shooting, Petitioner‘s mother stated that he had shot the victim, and, during an interview with law enforcement, she stated she saw Petitioner running to his car following the gunshots. D.E. 23-9 at 2. Moreover, there was substantial testimony that Petitioner was seeking a gun in order to kill his stepfather, and that he had a gun prior to the shooting that resembled the murder weapon. Id. at 2-3. Finally, a gun was found in Petitioner‘s home that had Petitioner‘s fingerprints on it, and was determined to be the gun used to kill the victim. Id. at 3. Petitioner does not allege that any of the evidence he references in this claim is “new evidence,” and, as discussed in more detail in the Court‘s analysis of Ground Four, most of the evidence was presented at trial.
Petitioner has not presented enough evidence to establish that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence. Therefore,
3. Ground Three: Ineffective Assistance of Counsel
Petitioner‘s next ground for relief claims ineffective assistance of counsel. Liberally construing Petitioner‘s briefing, he alleges seven instances of ineffective assistance of counsel. First, Petitioner alleges that counsel was ineffective because he “never informed the Petitioner of his right to request aide and assistance from the Mexican Consult, or to inform the Petitioner of his protected rights under Article 36, of the Vienna Convention[.]” D.E. 1-1 at 21. Second, Petitioner alleges that “[c]ounsel never informed the Petitioner of his right to file post-conviction relief after his Direct Appeal was denied.” Id. Next, Petitioner alleges that counsel was ineffective based on a failure to investigate a variety of issues. Id. at 21-22. Fourth, Petitioner alleges that counsel was ineffective because “[n]o attempt was made to locate, or obtain a Defense Expert Ballistics Witness- or even consult one to determine the need for one[.]” Id. at 22. Petitioner further alleges that counsel was ineffective during the sentencing phase of his trial. Id. at 23. Sixth, Petitioner alleges that all of counsel‘s errors had a cumulative effect and denied him effective assistance of counsel. Id. Finally, Petitioner alleges that counsel was ineffective for failing to inform him of his ability to testify in his own defense. Id. at 6.
The Court again notes the interplay between AEDPA deference under
The court also notes, before considering any particular claim of ineffective assistance, that Petitioner informed the trial court that he was satisfied with the representation of his counsel. See Video Record of Jury Trial Day 2, 07-24-2007, Disc 2 of 2, 14h04m28s, at 1:12:03-21. He stated that his counsel had done all of the things he had requested of him. Id. Therefore, Petitioner‘s statements on the record at trial directly contradict some of the claims he pursues now.
a. Ineffective Assistance Relating to the Vienna Convention
Petitioner‘s first claim of ineffective assistance of counsel again involves the alleged violation of his rights under the Vienna Convention. D.E. 1-1 at 21. Petitioner alleges that counsel was ineffective because he failed to inform the Petitioner of his right to contact the Mexican consulate. According to Petitioner, defense counsel “freely admitted” and “conjured up an excuse” for this failure. Id. Petitioner does not specifically describe the prejudice stemming from this alleged failure, but the Court presumes he means he would have requested the assistance of the Mexican Consulate had he known of the ability to do so.
The Court of Appeals of Kentucky addressed this claim as follows:
First, concerning [Petitioner‘s] assertion that “greed” caused his counsel to fail to perform his duties under the Vienna Convention, we find no basis in the record to support this assertion and, moreover, do not find this to be a proper cause of action under
RCR 11.42 . The Vienna Convention does not guarantee defendants any assistance of counsel and, indeed, secures only the right of foreign
D.E. 1-2 at 51. On this basis, the Court of Appeals affirmed the trial court. Id. Petitioner has failed to provide any factual or legal support for this claim. Moreover, as analyzed previously, any assertion of his right under the Vienna Convention is not cognizable under state or federal law. Accordingly, given the “doubly” deferential standard in this context, the Court cannot find that the Court of Appeals unreasonably applied Federal law. This claim fails.
b. Ineffective Assistance Based Upon Failure to Inform of Post-Conviction Rights
Petitioner‘s next claim of ineffective assistance of counsel is related to counsel‘s alleged failure to inform Petitioner of his ability to obtain post-conviction review with the assistance of appointed counsel.1 D.E. 1-1 at 21. Specifically, Petitioner alleges that “[c]ounsel never informed the Petitioner he had the ability to request assistance from the Department of Public Advocacy[.]” Id. Moreover, Petitioner states that “[c]ounsel never informed the Petitioner of his right to file post-conviction relief after his Direct Appeal was denied.” Id. According to Petitioner, this denied him “a fair and full opportunity to timely file for post-conviction review.” Id.
The Court of Appeals affirmed the trial court‘s denial of this claim by first noting that Petitioner “does not have an unfettered right to either post-conviction review or to counsel for same.” D.E. 1-2 at 51. Moreover, the Court of Appeals found that “a review of the record contradicts [Petitioner‘s] claim in this regard, as the record indicates that he was initially represented by a public defender during his post-conviction hearing.” Id. at 51-52.
Further, the case law cited by Petitioner does not support his claim. In each of the cases cited by Petitioner, the Supreme Court of the United States dealt with the issue of ineffective assistance of counsel on collateral review and its effect on procedural default. See Trevino v. Thaler, 133 S. Ct. 1911 (2013); Maples v. Thomas, 132 S. Ct. 912 (2012); Martinez v. Ryan, 132 S. Ct. 1309 (2012). Here, Petitioner does not argue that his appointed counsel on post-conviction review was ineffective, but that his trial/direct review counsel was inadequate. Therefore, the holdings of these cases are inapplicable to Petitioner‘s claim. Further, Petitioner does not attempt, in any manner, to describe how any of these cases support his claim. Thus, this claim fails.
c. Ineffective Assistance for Failure to Conduct Investigation
Petitioner‘s next claim for ineffective assistance of counsel is related to his multiple allegations that counsel failed to investigate various aspects of his case. D.E. 1-1 at 20. Petitioner alleges that trial counsel “admitted he did not investigate defense issues” which according to Petitioner demonstrates that counsel failed to “place the Commonwealth‘s case in chief to a proper adversarial test.” Id. Petitioner alleges that defense counsel should have investigated “the Coyote issue,” a person in a yellow shirt, and “the threatening phone calls made to Lilly prior to his death.” Id. Petitioner further alleges that counsel should have contacted
The Court of Appeals found that Petitioner had failed to establish ineffective assistance of counsel. D.E. 1-2 at 52. Finding that the record established that defense counsel had performed an adequate investigation into Petitioner‘s case, the Court of Appeals concluded that defense counsel “could not have reasonably been expected to discern the identity of an unnamed ‘black couple,’ or even named members of a ‘rival Mexican faction.‘” Id. Therefore, the court affirmed the trial court‘s findings. Id.
Defense counsel testified at the state court evidentiary hearing regarding his investigation into Petitioner‘s case. Defense counsel stated that he did not try to locate Petitioner‘s neighbors because he believed that it would not be helpful to the defense. See Video Record of Post-Conviction Hearing-August 16, 2012, at 11:25-12:11.2 According to defense counsel, “some of the things [Petitioner] had told [defense counsel] assisted the prosecution‘s timeline.” Id. at 12:05-12:11. Defense counsel further stated that Petitioner‘s mother had confirmed to him that Petitioner was at the scene at the time of the crime. Id. at 12:13-19. Similarly, defense counsel testified that Petitioner‘s own statements about the time he got off work would have further confirmed the prosecution‘s timeline. Id. at 13:00-21. Thus, he stated that he did not investigate these two issues because talking to these people would only do harm to Petitioner‘s case. Id. at 13:22-28.
The Kentucky Court of Appeals found this testimony to reflect a reasonable investigative strategy. Petitioner‘s bare allegations, without more, do not meet his burden to establish that the determination by the Kentucky state courts was unreasonable. Based on the testimony of counsel, it is certainly reasonable to conclude that not investigating these issues was a reasonable investigatory strategy. Petitioner‘s statements to counsel regarding his whereabouts that day led counsel to believe that any further investigation into the matter would be unhelpful to the defense. Moreover, counsel had little to no information regarding either the alleged “man in the yellow shirt” or any specific information regarding the victim‘s alleged criminal activities for counsel to investigate. Simply put, the Court cannot conclude, based on this record, that the state court‘s finding that counsel performed an adequate investigation was unreasonable.
The Court of Appeals did not address whether or not Petitioner had established prejudice in this claim. See D.E. 1-2 at 52 (resting its decision on performance of counsel). When a state court only relies on one Strickland prong to adjudicate an ineffective assistance of counsel claim, AEDPA deference does not apply to the other prong. See Rayner v. Mills, 685 F.3d 631, 638
Petitioner has failed to provide any specific allegation as to how each uninvestigated aspect would have affected the outcome of the case. Therefore, he cannot establish prejudice. Specifically, Petitioner fails to describe what “the Black Couple who lived above the Petitioner” or his employer would have added to his defense. He alleges that by contacting Petitioner‘s place of work, defense counsel could have determined when petitioner got off work that day. D.E. 1-1 at 4. He further states that, by speaking to his neighbors, defense counsel could have determined “when [Petitioner] arrived at home the day of the shooting[.]” Id. at 21. Petitioner does not identify what evidence this investigation would have produced or how it would have helped him.
He does claim that an investigation would have determined if these witnesses would have provided an alibi. D.E. 1-1 at 21. This is not sufficient to establish that there is a reasonable probability that the outcome of the trial would have been different had counsel investigated this evidence. See Strickland v. Washington, 466 U.S. 668, 694 (1984). Moreover, to the extent that Petitioner is asserting that counsel should have called these witnesses at trial, he must “[a]t the very least...submit sworn affidavits from each of the individuals he has identified as uncalled witnesses stating whether they were in fact available to appear at trial and able to give testimony favorable to [the] defense.” Talley v. United States, No. 1:00-cv-74, 2006 WL 3422997, at *10 (E.D. Tenn. Nov. 27, 2006); see also United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (“Under whatever framework, however, evidence about the testimony of a putative witness must
Similarly, Petitioner fails to specifically describe how any of the other issues, in light of the substantial evidence against him, would create a reasonable possibility to change the outcome of the case. The claims regarding the man in the yellow shirt and the victim‘s human trafficking ties have little factual support. Generally, he alleges throughout his filings that the victim was involved in some form of human trafficking and someone involved in this may have threatened or killed the victim. See D.E. 1-1 at 3, 6, 22-23; D.E. 26 at 11. Despite repetition of the statements, Petitioner has provided no factual basis or evidence for these allegations. He does not describe in any detail why he believes that the victim was involved in such activity. These mere allegations are simply not enough to carry Petitioner‘s burden.
Defense counsel is not required to investigate evidence to support claims that are frivolous in the face of overwhelming evidence. See Johnson v. Kemp, 759 F.2d 1503 (11th Cir. 1985). Again, there was overwhelming evidence of Petitioner‘s guilt, most of which is not disputed by Petitioner. Following the shooting, Petitioner‘s mother stated that he had shot the victim, and during an interview with law enforcement, she stated she saw Petitioner running to his car following the gunshots. D.E. 23-9 at 2. Three other witnesses also told police that they saw Petitioner running to his car following the gunshots. Id. There was substantial testimony that Petitioner was seeking a gun in order to kill the victim, and that he had a gun prior to the shooting that resembled the murder weapon. Id. at 2-3. Further, a gun was found in Petitioner‘s
In light of this overwhelming evidence of guilt, the Court cannot find that the state court‘s determination that defense counsel was not deficient in his investigation was unreasonable under the AEDPA. Nor has Petitioner established prejudice. This claim fails.
d. Ineffective Assistance Related to Ballistics Expert3
Petitioner‘s next claim of ineffective assistance of counsel concerns his assertion that defense counsel should have obtained an expert witness to support his defense. D.E. 1-1 at 22. Petitioner states that “[n]o attempt was made to locate, or obtain a Defense Expert Ballistics Witness- or even consult one to determine the need for one[.]” Id. Petitioner argues that such an expert “would have allowed the Defense to present evidence of the non-existence of gunpowder residue tests on the alleged murder weapon, as well as the Petitioner, or the clothes the Petitioner had been wearing the day of the shooting.” Id. According to Petitioner, tests like this were needed because “[f]inding ‘prints’ on the weapon fails to show the Petitioner fired the weapon.” Id. Petitioner argues that this failure by counsel “failed to put the Commonwealth‘s Case In Chief to a proper adversarial test.” Id. at 27.
The Court of Appeals of Kentucky addressed this claim as follows:
Concerning [Petitioner‘s] assertion that counsel failed to investigate the forensic aspects of his case through the use of experts, we note that Rapp was questioned on this issue below and testified that the passage of time rendered such an investigation impractical, and that it was his belief that inconclusive results as testified to by an expert would actually have done more harm to [Petitioner‘s] case than good. Our courts have repeatedly held that a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‘s challenged conduct, and to evaluate the conduct from counsel‘s perspective at the time. Hodge v. Commonwealth, 116 S.W.3d 463, 469 (Ky. 2003). Hence, the defendant must
overcome the presumption that counsel provided reasonable trial strategy. Id. In this instance, we do not believe that [Petitioner] has overcome that presumption, and we affirm.
D.E. 1-2 at 52-53. The Commonwealth urges this court to adopt the findings of the Kentucky Court of Appeals. D.E. 23 at 19-21.
At the state court evidentiary hearing, defense counsel testified that at no time did he obtain a ballistics expert. Video Record of Post-Conviction Hearing-August 16, 2012, at 13:38-43. He stated that there were “several reasons” he did not secure a ballistics expert. Id. at 13:43-44. The first reason was financial, as Petitioner could not afford to hire an expert witness. Id. at 13:44-48.4 The second reason, according to defense counsel, was because he believed that any such witness could have been used on cross-examination to provide support to the Commonwealth‘s case. Id. at 13:48-14:20. He believed that any gunpowder residue test would likely comeback inconclusive, that the ballistics matched “perfectly,” and that fingerprint evidence was “beyond reproach.” Id. at 14:01-26. He testified that he believed that any expert that could have been presented by defense could have been turned around and used to “bolster” the Commonwealth‘s case. Id. at 14:50-15:21. Thus, he did not believe any expert would be necessary.
. “Criminal cases will arise where the only reasonable and available defense strategy requires consultation with experts or introduction of expert evidence[.]” Harrington v. Richter, 562 U.S. 86, 106 (2011). “It can be assumed that in some cases counsel would be deemed ineffective for failing to consult or rely on experts, but even that formulation is sufficiently general that state courts would have wide latitude in applying it.” Id. Defense counsel is
Here, it cannot be said that the state court‘s finding that counsel was not deficient was unreasonable. Defense counsel testified that he made a decision to not employ any expert because he believed that any such witness could have been used to bolster the Commonwealth‘s case, and because Petitioner lacked the financial means to pay for such an expert. The state court found that this was a reasonable decision by trial counsel. Petitioner provides little to the contrary. He does not provide any proof that the opinion of either a gunshot residue (GSR) or ballistics expert would have been favorable to his defense. Moreover, he provides no factual allegations that a ballistics expert would have disputed the evidence that the gun found in his apartment was used to murder the victim.
Therefore, Petitioner has failed to demonstrate how employing either expert would have been favorable to the defense. Counsel‘s decision was within the wide range of reasonable professional assistance and the wide latitude defense counsel has in formulating sound trial strategy. Petitioner simply has failed to provide any reason for the Court to conclude that defense counsel was unreasonable in his decision making, and certainly has provided nothing to meet the doubly deferential standard of the AEDPA. Thus, the state court‘s finding as to this claim of ineffective assistance was neither contrary to, nor involved an unreasonable application of, clearly established federal law, nor was it based on an unreasonable determination of the facts. Accordingly, this claim fails.
e. Ineffective Assistance of Counsel during Sentencing
Petitioner‘s next claim of ineffective assistance of counsel relates to the sentencing phase of his case. D.E. 1-1 at 23. He alleges that defense counsel “informed the jury Petitioner was an
In his state post-conviction brief, Petitioner alleged that “counsel never attempted to present mitigating evidence for a reduced sentence.” D.E. 23-6 at 19. He also asserted an argument that his illegal alien status and his mental history should have been brought up as mitigating factors at sentencing. Id. at 10. This is slightly different than Petitioner‘s federal filing, in that his federal filing does not include any mention of any mental issues.
The state courts, both at the trial and appellate level, denied this claim of ineffective assistance and focused primarily upon the mental issue, without expressly addressing either the illegal alien claim or any other witnesses that could have been presented.5 See D.E. 23-8 at 5; D.E. 1-2 at 54. The Court of Appeals of Kentucky addressed this claim as follows:
Next, [Petitioner] asserts that counsel failed to present mitigating evidence. The record reveals this assertion to be without merit, as counsel did present mitigating witnesses at trial. Concerning the mitigation evidence that [Petitioner] asserts should have been presented, namely, that he had a head injury which presumably affected his behavior; counsel testified as to his belief that this could create a risk of [Petitioner‘s] being portrayed as a dangerous and unhinged individual who could not be rehabilitated. Finding this to be sound trial strategy, we decline to reverse on this basis.
D.E. 1-2 at 54. Although the state court failed to specifically address each aspect of this claim, the Court still applies AEDPA deference to the claim as it is presumed that the state court adjudicated the claim “on the merits.” See Harrington v. Richter, 562 U.S. 86, 99 (2011) (“When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that
“As in the guilt/innocence phase of trial, failure even to investigate or present mitigating evidence at sentencing may constitute ineffective assistance of counsel.” O‘Guinn v. Dutton, 88 F.3d 1409, 1424 (6th Cir. 1996) (citing Glenn v. Tate, 71 F.3d 1204, 1206-08 (6th Cir. 1995)). A thorough investigation into possible strategies is required, “but ‘a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel‘s judgments.‘” Frazier v. Jenkins, 770 F.3d 485, 503 (6th Cir. 2014) (quoting Strickland, 466 U.S. at 690-91). Of course, even if deficient performance is established, Petitioner must establish that “had the jury been confronted with this mitigating evidence, there is a reasonable probability that it would have returned with a different sentence.” Wong v. Belmontes, 558 U.S. 15, 20 (2009) (internal quotations omitted).
Defense counsel testified at the evidentiary hearing about his mitigation strategy at Petitioner‘s sentencing. He testified that he did not remember why he did not inform the jury during sentencing that Petitioner was an illegal alien, but that his mitigation strategy was focused on Petitioner‘s “humanity” through the testimony of Petitioner‘s mother and sister. Video Record of Post-Conviction Hearing-August 16, 2012, at 22:27-24:14. Defense counsel stated that his mitigation strategy was focused on trying to “humanize” the Petitioner during sentencing because he wanted to convey the message to the jury that Petitioner was a safe individual. Id. at 31:19-32:09. He testified that he avoided certain mitigation strategies, such as focusing on Petitioner‘s mental health, because he believed such a mitigation strategy ran the risk of “alienating” the jury because it would appear contrary to the defense during the guilt portion of
The Kentucky Court of Appeals found this to be a reasonable mitigation strategy at sentencing. See D.E. 1-2 at 54. A review of the testimony from the evidentiary hearing and the testimony from the sentencing hearing itself reveals that this was a reasonable finding. Petitioner asserts that defense counsel should have raised a variety of issues during sentencing such as his illegal alien status and his various claims of other evidence. However, Petitioner‘s arguments are conclusory, and are not supported factually or legally. Accordingly, he has failed to meet his burden to establish ineffective assistance of counsel. Defense counsel‘s decision that any testimony at sentencing purporting to deny responsibility would not be beneficial to Petitioner appears to be an exercise of the wide range of reasonable professional judgment trial counsel has in formulating a mitigation strategy. See Frazier v. Jenkins, 770 F.3d 485, 503 (6th Cir. 2014). Defense counsel was entitled to formulate a strategy that he believed would be most effective, and based on this record counsel was reasonable in doing so.
Giving the state court the double deference afforded under the AEDPA, the Court finds that its decision that defense counsel acted in a constitutionally effective manner relating to sentencing is a reasonable one. Petitioner has failed to provide any legal authority or factual basis to establish that the state court acted unreasonably in reaching its decision. Accordingly, this claim fails.
Petitioner‘s final listed claim of ineffective assistance is for cumulative error. D.E. 1-1 at 23. Petitioner argues that ineffective assistance of counsel should be considered in the totality of the circumstances and the Court should consider the cumulative effect of defense counsel‘s errors. Id. He asserts that “[t]he State ignores the cumulative effect, and attempts to use the item-by-item analysis- which has been clearly overruled.” Id. Petitioner is arguing that all of counsel‘s errors, when considered together rather than separately, amount to ineffective assistance of counsel.
The Court of Appeals rejected this argument, “finding that none of the arguments made by [Petitioner] in support of the assertion that counsel was ineffective are merited, we do not find that [Petitioner‘s] cumulative error argument warrants reversal.” D.E. 1-2 at 54. Citing Brown v. Commonwealth, 313 S.W.3d 577 (Ky. 2010), the court held that “where there are no errors and no prejudice from any alleged errors, there can be no cumulative error.” Id. The Court of Appeals did not, however, expressly address the federal component of the Petitioner‘s claim, even though Petitioner raised one. See D.E. 23-6 at 12 (petitioner asserting ineffective assistance of counsel under both the Federal and Kentucky constitutions).
Therefore, the question is whether, because the state court failed to expressly address this claim, AEDPA deference still applies. As noted above, under AEDPA a court may grant a writ of habeas corpus if the state court‘s decision on the merits was either “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”
However, “[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011). The Richter presumption applies in situations in which “the state court addresses some of the claims raised by a defendant but not a claim that is later raised in a federal habeas proceeding.” Johnson v. Williams, 133 S. Ct. 1088, 1091 (2013). “[W]hile the Richter presumption is a strong one that may be rebutted only in unusual circumstances, it is not irrebuttable.” Id. at 1096. Therefore, a federal court “must presume, subject to rebuttal, that the federal claim was adjudicated on the merits by the state court.” Olson v. Little, 604 F. App‘x 387, 390 (6th Cir. 2015) (citing Johnson, 133 S. Ct. at 1091).
The Court cannot conclude that the presumption has been rebutted as to this claim. First, the Court of Appeals included the federal Strickland standard before addressing any of Petitioner‘s ineffective assistance claims, including his claim for cumulative error. Second, Petitioner has made no argument that the state courts overlooked this claim, or that it is not entitled to deference. This furthers the conclusion that the Richter presumption applies. See Johnson, 133 S. Ct. at 1099 (“[Petitioner] presumably knows [his] case better than anyone else, and the fact that [he] does not appear to have thought there was an oversight make such a mistake most improbable.“). Therefore, because Petitioner has not argued that the Court did not reach the claim on the merits, and because the Court of Appeals appeared to be considering Petitioner‘s ineffective assistance of counsel claims in the federal context, the Richter
The Court cannot conclude that the state court‘s decision was an unreasonable application of Federal law. If no individual claim of ineffective assistance has any merit, the Court cannot find that cumulative error rendered counsel ineffective. See Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000) (“Because the individual claims of ineffectiveness alleged by [Petitioner] are all essentially meritless, [Petitioner] cannot show that the cumulative error of her counsel rendered him ineffective.“). Thus, the state court‘s conclusion that Petitioner‘s claim of cumulative error had no merit was not an unreasonable application of Federal law.
g. Ineffective Assistance for Failing to Advise of Right to Testify
In a portion of Petitioner‘s
Again, the question is whether, because the state court failed to expressly address this claim, AEDPA deference still applies. As discussed above, this depends on whether the Richter presumption applies. With respect to this claim, the Court cannot conclude that the presumption
Second, Petitioner has again made no argument that the state courts overlooked this claim, or that it is not entitled to deference. This supports the conclusion that the Richter presumption applies. Therefore, because Petitioner has not argued that the Court did not reach the claim on the merits, and because the claim was not properly developed, the Richter presumption has not been rebutted. Accordingly, AEDPA deference to the state court‘s decision applies as to this claim.
Turning to the merits of the claim, the state court‘s decision did not involve an unreasonable application of federal law, or an unreasonable determination of the facts. Petitioner alleges that defense counsel “never explained to [Petitioner] that he had a right to testify in his own defense, and to make that Decision himself.” D.E. 1-1 at 6. However, this allegation is directly contradicted by the record. At the evidentiary hearing, defense counsel testified that he discussed the right to testify with Petitioner through two interpreters. Video Record of Post-Conviction Hearing-August 16, 2012, at 28:41-29:05. Defense counsel stated that he explained the right “fully,” that the judge confirmed Petitioner‘s understanding of his right, and that he would have no reason to believe Petitioner did not understand the right. Id. at 29:08-30. A
It is clear that a defendant has a fundamental right to testify in his defense. Rock v. Arkansas, 483 U.S. 44, 51-53 (1987). This right must be “unfettered.” Harris v. New York, 401 U.S. 222, 230 (1971). Where counsel makes a tactical decision to advise a defendant not to testify, “Petitioner‘s assent is presumed as is the effectiveness of Petitioner‘s counsel, barring any indication by Petitioner at trial that he disagreed with his counsel.” Gonzales v. Elo, 233 F.3d 348, 357 (6th Cir. 2000). “A federal court sitting in habeas review of a state court conviction should have ‘a strong presumption that trial counsel adhered to the requirements of professional conduct and left the final decision about whether to testify with the client.‘” Wilson v. Winn, Civil No. 2:12-CV-14597, 2015 WL 5999656, at *8 (E.D. Mich. Oct. 15, 2015) (citing Hodge v. Haeberlin, 579 F.3d 627, 639 (6th Cir. 2009)).
Petitioner presents no argument or evidence to support his claim that defense counsel‘s performance was deficient. His acknowledgement in open court that he was aware of his right to testify and was waiving that right on the advice of counsel, gives rise to the presumption that
4. Ground Four: Denial of Due Process by the Denial of Evidence of Actual Innocence
Petitioner‘s next ground for relief is based on his claim that he was denied evidence of his actual innocence in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. D.E. 1-1 at 24. Petitioner again alleges that there was not enough evidence to convict him of the murder of Lilly. Id. Moreover, he alleges that the jury should have heard evidence regarding the victim‘s criminal activity as a “coyote” and “warring Mexican Factions,” and should have been presented with the results of ballistic tests that were not done. Id. at 24-25. According to Petitioner, had this evidence been presented, “‘a reasonable probability’ exists as to a different result in the trial proceedings.” Id. at 25.
This claim was presented to the Kentucky Court of Appeals which addressed it as follows:
We now turn to [Petitioner‘s] fourth basis for appeal, wherein he argues that he was denied the opportunity to present evidence of actual innocence. Upon review of the record, we simply find this argument to be without merit. While [Petitioner] asserts that evidence was presented to indicate that there was an unknown person in a yellow shirt on the night of the crime, and that there had been threats against Lilly, who was a Coyote, we note that this defense was actually presented at trial. Our review of the record reveals nothing to support [Petitioner‘s] assertion that he was prevented from presenting any evidence which would have supported his theory of the case. While [Petitioner] argues that counsel should have discovered more evidence to support [Petitioner‘s] theory of the case, counsel testified during the course of the evidentiary hearing that there was nothing else to pursue. Finding nothing in the record to indicate the contrary, we affirm.
D.E. 1-2 at 54-55. The Commonwealth argues that Petitioner‘s argument should be rejected because it presented overwhelming evidence of Petitioner‘s guilt, and at no point was Petitioner denied the ability to present evidence of his innocence. D.E. 23 at 21-23. Moreover, the
In this Ground, Petitioner appears to be making two separate arguments. First, Petitioner is arguing that he was denied the ability to present evidence of his innocence during his trial. Second, Petitioner is arguing that he is actually innocent of the crime. Petitioner has provided no basis for his argument that he was not able to present evidence of his actual innocence at trial. Assuming Petitioner is arguing that the state court‘s findings of facts were unreasonable as to this issue, he has failed to establish this claim.
It is true that, following the presentation of the Commonwealth‘s case, Petitioner did not present any evidence in his defense. However, he was afforded the full opportunity to do so, and each of the theories that Petitioner claims should have been presented were in fact argued by his counsel to the jury during closing. See Video Record of Jury Trial Day 2, 07-24-2007, Disc 2 of 2, 14h04m28s, at 16:59-17:19, 31:13-15 (discussing threats made to the victim); id. at 25:43-26:40, 31:10-12. (discussing the man in the yellow shirt). Petitioner cannot now argue that he was denied the ability to present these theories when in fact these theories were presented to the jury.
Also, to the extent he again alleges that counsel was ineffective for failing to investigate this evidence, he fails to meet his burden. As discussed extensively above, Petitioner has failed to establish that defense counsel was ineffective in any manner. Defense counsel testified that he had investigated Petitioner‘s theories as much as he could, given the little amount of information provided from Petitioner. See Video Record of Post-Conviction Hearing-August 16, 2012, at 15:23-53; 17:38-19:20. Moreover, he testified that the decision to not employ experts was based upon reasonable trial strategy as he believed it would do more harm to Petitioner‘s case than
Second, to the extent that Petitioner is arguing that he is “actually innocent,” this claim was discussed in detail above. Given the substantial evidence that was presented against Petitioner at trial, and his failure to establish any new evidence that was not presented at trial, he has failed to prove that “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 327 (1995). Thus, he has failed to establish a claim of actual innocence.
Petitioner has not overcome the AEDPA deference due. While it is true that Petitioner did not put on any evidence at trial, there is no indication that he was denied the ability to do so. The theories Petitioner asserts should have been presented to the jury were in fact argued to the jury as alternate theories to the case. Moreover, he has not demonstrated his actual innocence. Thus, this claim fails.
5. Grounds Five and Six: Denial of Due Process related to the Lack of Defense Expert Witnesses
In Ground Five of his
Similarly, in Ground Six of his
The Kentucky Court of Appeals addressed these claims by finding that these arguments were restatements of arguments made in Petitioner‘s claim of ineffective assistance of counsel. D.E. 1-2 at 55. Therefore, the state court again found that trial counsel‘s strategy with regard to experts “was reasonable[.]” Id. Petitioner does not object to the state court construing these claims as ineffective assistance of counsel claims. Moreover, he fails to demonstrate how these claims are any different than those raised in Ground Three asserting ineffective assistance of counsel. Thus, the Court finds that the state court was reasonable in construing these arguments as claims of ineffective assistance of counsel, and does the same.
Applying the doubly deferential standard to the state court‘s decision, the Court cannot find that defense counsel‘s decision to not employ an expert constituted deficient performance. “It can be assumed that in some cases counsel would be deemed ineffective for failing to consult or rely on experts, but even that formulation is sufficiently general that state courts would have wide latitude in applying it.” Harrington v. Richter, 562 U.S. 86, 106 (2011). Defense counsel is “entitled to formulate a strategy that was reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies.” Id. Petitioner has failed to establish that counsel was deficient in this regard. The state court found that his decision to not employ an expert was part of reasonable trial strategy. The Court cannot conclude that this decision was contrary to, or an unreasonable application of clearly established federal law, or was based on an unreasonable determination of the facts. Thus, these claims fail. 6. Grounds Seven and Eight: Denial of Due Process Based on a Lack of Evidence and Admission of Carmella Arevalo‘s Excited Utterance In his next Ground for relief, Petitioner argues that he was denied due process of law because “there was a lack of evidence to support a finding of guilt on the offense charged.” D.E. 1-1 at 29. According to Petitioner, “there was a total lack of reliable evidence for the offense charged.” Id. at 30. Petitioner again asserts that there was no “real” evidence that he committed the crime, and that the jury should have heard other items of evidence, such as the man in the yellow shirt and the victim‘s criminal activity. Id. He asserts that the gun was not “real evidence” because no gunpowder tests were performed, and that most of the evidence against him was hearsay evidence. Id. at 30-31. He asserts that the state must prove he committed the crime “with direct evidence, not ‘some evidence,’ as would suffice for a civil case.” D.E. 26 at 15. In Ground Eight, Petitioner argues that his due process rights were violated when the excited utterance of Carmella Arevalo, Petitioner‘s mother, was allowed into evidence. D.E. 1-1 at 32. Petitioner argues that this excited utterance was introduced at trial through a 911 tape and the testimony of Officer Buenoto. Id. According to Petitioner, his mother never saw the shooting or him with a weapon. Id. at 32-33. He asserts that “because Ms. Arevalo‘s excited utterances were no more then [sic] speculation as to what occurred” he is entitled to habeas relief. Id. at 33. The Kentucky Court of Appeals, in addressing both of these claims, found that: As his sixth basis for appeal, [Petitioner] argues that there was simply not enough evidence for the jury to find him guilty. Essentially, this is an argument in favor of a directed verdict. We note that this is an allegation which should be addressed through direct appeal. As we have previously held, the RCr 11.42 procedure is not designed to give a convicted defendant an additional appeal or review of trial errors that should have been addressed on direct appeal. Commonwealth v. Basnight, 770 S.W.2d 231, 237 (Ky. App. 1989). This is also the case with respect to [Petitioner‘s] seventh basis for appeal, wherein he argues that the excited utterances made by his mother during the 911 call were hearsay and should not have been admissible. D.E. 1-2 at 55-56. On this basis, the Court of Appeals declined to consider both of these claims. Id. The Commonwealth argues that the Court of Appeals correctly enforced a state procedural rule, and thus this Court should find these claims to be procedurally defaulted. D.E. 23 at 24-26. As previously discussed, a petitioner may procedurally default a claim by failing to conform to relevant state procedural rules in presenting his claim in state court. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)). To determine if a claim has been procedurally defaulted in this way, the Sixth Circuit has articulated a four-part test: (1) whether there is a state procedural rule that is applicable to the petitioner‘s claim; (2) whether the petitioner failed to comply with that rule; (3) whether the procedural rule was actually enforced in the petitioner‘s case; and (4) whether the state procedural forfeiture is an adequate and independent state ground on which the state can rely to foreclose review of a federal constitutional claim. Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005) (citing Maupin, 785 F.2d at 138). “[A] procedural default does not bar consideration of a federal claim on habeas corpus review unless the last state court rendering a reasoned opinion in the case ‘clearly and expressly states that its judgment rests on a state procedural bar.‘” Frazier v. Huffman, 343 F.3d 780, 791 (6th Cir. 2003) (quoting Harris v. Reed, 489 U.S. 255, 263 (1989)). Thus, “where a petitioner raised a claim in the state court but in violation of a state‘s procedural rule, a state court must expressly reject the claim on that procedural ground for the federal court to deem the claim defaulted.” Thompson v. Bell, 580 F.3d 423, 438 (6th Cir. 2009). In order to be “adequate“, “[a] state procedural rule must be ‘firmly established and regularly followed.‘” Wilson v. Mitchell, 498 F.3d 491, 499 (6th Cir. 2007) (quoting Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004)). Finally, “[a] state procedural rule is an independent ground when it does not rely on federal law.” Id. (citing Coleman v. Thompson, 501 U.S. 722, 732 (1991)). Here, Petitioner has offered no argument, in his § 2254 petition or reply, as to why his claims should not be construed as procedurally defaulted. Clearly there is a state procedural rule applicable to these claims which Petitioner has failed to follow. See Commonwealth v. Basnight, 770 S.W.2d 231, 237 (Ky. App. 1989) (“It is clear from our case law that the RCr 11.42 procedure is not designed to give a convicted defendant an additional appeal or a review of trial errors that should have been address upon the direct appeal. A trial error asserted in an RCr 11.42 motion must rise to the level of a constitutional deprivation of due process.“). The Court of Appeals “clearly and expressly” stated that its judgment rested upon this state procedural bar. Frazier, 343 F.3d at 791. As a result, the state procedural default “carries over to federal court and precludes habeas review” of Petitioner‘s federal constitutional claims. Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000). Of course, procedural default may be excused if a petitioner, or that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). However, as analyzed above, Petitioner has failed to provide any argument as to cause and prejudice, and the Court cannot formulate one on his behalf. Further, any argument Petitioner asserts regarding actual innocence is meritless. Thus, this Court is barred from addressing these claims on the merits. 7. Ground Nine: Cumulative Error In his last Ground for relief, Petitioner argues that he was denied Due Process as a result of cumulative error. D.E. 1-1 at 33. Petitioner asserts that “[n]umerous errors were commitetd [sic] throughout the Petitioner‘s case, both Pre-Trial, at Trial, and on Appeal- and throughout post-conviction review.” Id. at 34. Petitioner again reargues his previous claims for error, and asserts that the “cumulative effect of the erros [sic] stated above substantially denied the Petitioner due process and a full and fair opportunity to present a defense to the allegations made.” Id. at 37-38. The Kentucky Court of Appeals stated that “[b]ecause we have found that none of the errors alleged by [Petitioner] warrant reversal in and of themselves, we decline to review this argument further herein.” D.E. 1-2 at 56. Thus, the Court of Appeals affirmed the trial court. Id. Similarly, the Commonwealth argues that none of the issues that Petitioner raised were errors, therefore the Petitioner is not entitled to relief. D.E. 23 at 26. The Court is foreclosed from considering this claim because, post AEDPA, cumulative error is not a ground for relief under § 2254 in the Sixth Circuit. See Williams v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006) (“[T]he law of this Circuit is that cumulative error claims are not cognizable on habeas because the Supreme Court has not spoken on this issue.“) (citing Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005)). “No matter how misguided this case law may be, it binds us.” Id. (citing Turker v. Ohio Dep‘t of Rehabilitation and Corrections, 157 F.3d 453, 457-458 (6th Cir. 1998)). Accordingly, Petitioner‘s argument here cannot afford him any relief. This claim fails. III. CERTIFICATE OF APPEALABILITY A Certificate of Appealability may issue where a petitioner has made a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires a petitioner to demonstrate that “reasonable jurists would find the district court‘s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 335–38 (2003) (discussing development of standard). The reviewing court must indicate which specific issues satisfy the “substantial showing” requirement. 28 U.S.C. § 2253(c)(3); see Bradley v. Birkett, 156 F. App‘x 771, 774 (6th Cir. 2005) (noting requirement of “individualized assessment of . . . claims“) (citing Porterfield v. Bell, 258 F.3d 484, 487 (6th Cir. 2001)). For dismissals on procedural grounds, as to when a Certificate of Appealability should issue, the petitioner must show that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” See Slack, 529 U.S. at 484. None of Petitioner‘s claims presents a close issue involving a violation or unreasonable application of clearly established federal law, or any other avenue of relief under § 2254. No reasonable jurist would find the assessments above to be wrong or debatable; thus, no Certificate of Appealability should issue. IV. EVIDENTIARY HEARING Petitioner requests that the Court conduct an evidentiary hearing on this matter. D.E. 1-1 at 1-2. Review under § 2254 is “limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Evidence introduced in federal court has “no bearing” on § 2254 review. Id. V. CONCLUSION AND RECOMMENDATION Having reviewed each of Petitioner‘s grounds for section 2254 relief, the Court concludes that Petitioner has failed to make the requisite showing that would entitle him to any relief. Therefore, the Court RECOMMENDS that Petitioner‘s Petition for habeas corpus (D.E. 1) be DENIED. The Court also RECOMMENDS that no Certificate of Appealability should issue. The Court directs the parties to 28 U.S.C. § 636(b)(1) for appeal rights and mechanics concerning this Recommended Disposition, issued under subsection (B) of the statute. See also Rules Governing Section 2254 Proceedings, Rule 8(b). Within fourteen days after being served with a copy of this decision, any party may serve and file specific written objections to any or all findings or recommendations for determination, de novo, by the District Court. Failure to make a timely objection consistent with the statute and rule may, and normally will, result in waiver of further appeal to or review by the District Court and Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981). This the 23rd day of February, 2016. Signed By: Hanly A. Ingram United States Magistrate Judge