PETITIONER ORDER ADOPTING REPORT AND RECOMMENDATION RESPONDENT

DAVID L. BUNNING, District Judge.

This matter is before the Court upon the Magistrate Judge's Report and Recommendation (R&R) (Doc. # 14), in which he recommends that the Court deny Petitioner Kevin Raiford's 28 U.S.C. § 2254 petition for writ of habeas corpus. Raiford having filed objections to the R&R (Doc. # 17), and the Warden's time to submit a response having expired, this matter is ripe for review. For the reasons that follow, Petitioner's objections are overruled, and the R&R is adopted as the opinion of the Court.

I. Facts

In 2005, a Fayette County Circuit Court sentenced Raiford to thirty-five (35) years in prison for "first-degree robbery, receiving stolen property over $300, and being a persistent felony offender in the first-degree." Raiford v. Commonwealth, No. 2005-SC-0273-MR, 2006 WL 2455987, at * 1 (Ky. Aug. 24, 2006). The following is a brief recitation of the facts: The morning after stealing a car, Raiford walked into a Marathon gas station on South Broadway in Lexington, Kentucky armed with a hunting knife and demanded money from the station's owner, Andy Aullman. During the course of the robbery, Aullman was able to positively identify Raiford and write down the license plate number of his stolen getaway car. Minutes later, a Lexington police officer pulled over the matching vehicle, Raiford stepped out, and the officer placed him under arrest.

Raiford raises three claims in his § 2254 petition: (1) his Sixth Amendment right to an impartial jury was violated because a juror, Donna Holland, did not disclose in voir dire that she was a customer of the Marathon gas station; (2) his trial counsel was constitutionally ineffective for not requesting a jury instruction on second degree robbery; and (3) his trial counsel was constitutionally ineffective for not permitting him to testify. Where Raiford has made specific objections to the Magistrate's R&R, the Court will review them de novo. 28 U.S.C. § 636(b)(1)(c); Jones v. O'Dea, 83 F.3d 422, *1 (6th Cir. 1996) ("[A] party must file specific objections to the magistrate judge's report.").

II. Analysis

A. Applicable law

When a petitioner raises a claim in a § 2254 petition that the state courts adjudicated on the merits, a federal court may grant relief only if "the adjudication resulted in a decision that: (1) was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court; or (2) was based upon an unreasonable determination of the facts in light of the evidence presented to the state courts." Willis v. Smith, 351 F.3d 741, 744 (6th Cir. 2003) (citing 28 U.S.C. § 2254(d)).

To prevail on an ineffective assistance of counsel claim, a petitioner must show that his counsel's performance was deficient and that his counsel's deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). On federal habeas review, establishing ineffective assistance of counsel is "all the more difficult" because "the question is not whether counsel's actions were reasonable . . . [t]he question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 788 (2011).

B. Juror Bias

Raiford submits that his Sixth Amendment right to an impartial jury was violated because one of the jurors, Donna Holland, was a customer at the Marathon gas station and recognized Aullman when he testified. During voir dire, the jury pool was asked whether they were familiar with the Marathon gas station or any of the names on the witness list. Raiford, 2006 WL 2455987, at * 1. Id. At a later evidentiary hearing, Holland testified that she did not speak up during voir dire because, although she recognized Aullman when he took the stand, she did not know him by name or the Marathon station's address.1 Id. at 2. She further testified that she did not immediately inform the Court that she knew Aullman because, remembering the questions asked during voir dire of jurors who knew a witness, she believed that she could be "fair and impartial." Id.

On direct appeal, the Kentucky Supreme Court denied Raiford's claim for two reasons: (1) Holland was mistaken, not dishonest, in not responding to the questions, and (2) Holland did not do anything to conceal any bias against Raiford. Id. at 3. In the Magistrate's R&R, he recommended that this Court deny Raiford's claim because Raiford had not demonstrated that the Kentucky Supreme Court was unreasonable in its application of federal law. (Doc. # 14 at 8). Based on Holland's testimony, the Court agrees with the Magistrate and the Kentucky Supreme Court that her failure to recognize Aullman's name or the gas station's address were honest mistakes. Raiford, however, argues that even if Holland's mistake was in good faith, it does not necessarily prevent a finding of bias. (Doc. # 17 at 4). Because Raiford is correct under Sixth Circuit law, Zerka v. Green, 49 F.3d 1181, 1186 n.7 (6th Cir. 1995), the Court will address his argument.2

Under Sixth Circuit precedent, when a juror conceals information "through an honest, though mistaken, response," a petitioner "`must show actual bias' in order to obtain a new trial." United States v. Solorio, 337 F.3d 580, 595-96 (6th Cir. 2003) (quoting Zerka, 49 F.3d at 1186). Raiford argues that there is actual bias because Holland, as a customer at Aullman's gas station, had written him some bad checks, and out of remorse, she would have wanted to support him as the state's complaining witness. However, this argument ignores Holland's testimony that she was not aware that she had cashed bad checks at Aullman's store until after the trial, when the Commonwealth had served her notice of the check charges. Raiford, 2006 WL 2455987, at *2. It further ignores Holland's testimony that she believed, despite being Aullman's customer, that she could be fair and impartial. Id. As the Kentucky Supreme Court noted "Aullman and Holland never engaged in more than a typical cashier-customer conversation." Id. For these reasons, in addition to the reasons stated in the Magistrate's R&R, the Court concludes that Holland was not a biased juror.

C. Jury instructions

Raiford argues that his trial counsel was ineffective for not requesting a jury instruction on the lesser included offense of second degree robbery. The Magistrate recommended that this Court deny Raiford's claim because it is based upon Kentucky state law and not cognizable on federal habeas review, and because the Kentucky appellate court's adjudication of Raiford's Strickland claim was reasonable under § 2254. (Doc. # 14, 9-11). Raiford objects, maintaining that his trial counsel's failure to request the lesser included instruction rendered his counsel's performance constitutionally deficient.

The Court will deny Raiford's objection because it agrees with the Magistrate that the Kentucky appellate court's denial of Raiford's Strickland claim was reasonable. In denying Raiford's first RCr 11.42 motion, the Kentucky appellate court held that Raiford's trial counsel was not ineffective for deciding not to request a second degree robbery instruction because the evidence did not support the instruction. Raiford v. Commonwealth, No. 2009-CA-000077, 2010 WL 2428071, *2 (Ky. Ct. App. June 18, 2010). Raiford "used a [hunting] knife during the robbery and threatened the store clerk with it," which is first degree robbery under Ky. Rev. Stat. Ann. 515.020(1)(c).3 Id. A rational jury could not have found Raiford guilty of second degree robbery while finding him not guilty of first degree robbery, because that would require a finding that Raiford threatened Aullman without the use of the hunting knife — a finding that would have been inconsistent with the evidence.4 Because the trial court would not have given the second degree robbery instruction, Raiford's counsel was not unreasonable for not requesting it, and his counsel's decision did not prejudice him. See Wombles v. Commonwealth, 831 S.W.2d 172, 175 (Ky. 1992) (stating that under Kentucky law, "the trial court is required to instruct a jury on lesser-included offenses when it is so requested and it is justified by the evidence.").

D. Decision not to testify

In his final ground for relief, Raiford contends that the Kentucky court unreasonably applied federal law in rejecting his claim that his counsel was constitutionally ineffective for not allowing him to testify. The Magistrate recommended that this Court deny Raiford relief because he had not met the high burden imposed on a § 2254 petitioner bringing a Strickland claim. Raiford's objects, arguing that the trial record demonstrates that he did not waive his right to testify, and that if he did testify, there is a "reasonable probability" that the outcome of the trial would have been different.

The Court concludes that Raiford's counsel was not deficient in advising him not to testify and that Raiford's failure to testify did not prejudice him. Counsel's advice not to testify was sound trial strategy because Raiford "was a convicted felon," "was captured in the getaway car within ten to fifteen minutes after the crime," and therefore "his testimony would have little credibility in light of the strong evidence presented against him." Raiford v. Commonwealth, No. 2011-CA-559, 2013 WL 132578, *2 (Ky. Ct. App. Jan. 11, 2013).

The Kentucky court was also reasonable in determining that Raiford's failure to testify did not prejudice him. The Court reaches that conclusion for the same reason cited by the Kentucky Court of Appeals:

Id. at 3. Because the Kentucky Court of Appeals was reasonable in determining that Raiford did not receive ineffective assistance of counsel with respect to his decision not to testify, this claim in denied.

IT IS ORDERED as follows:

(1) Petitioner's Objections to the Magistrate Judge's Report and Recommendation (Doc. # 17) are hereby OVERRULED;

(2) The Magistrate Judge's Report and Recommendation (Doc. # 14) is hereby ADOPTED as the findings of fact and conclusions of law of the Court;

(3) The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. # 1) is hereby DENIED;

(4) The matter is hereby DISMISSED and STRICKEN from the active docket of this Court;

(5) The Court determines there would be no arguable merit to an appeal in this matter and, therefore, no certificate of appealability shall issue; and

(6) A separate Judgment shall be entered contemporaneously herewith.