NOT TO BE PUBLISHED

OPINION

LAMBERT, SENIOR JUDGE.

Kendrick Cherry, proceeding pro se, appeals from a judgment of the Graves Circuit Court denying his motion for post-conviction relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42.2 Appellant argues: (1) that the circuit court erroneously applied a more stringent standard in considering his RCr 11.42 claim than permitted by law; and (2) that he received ineffective assistance of appellate counsel. Having reviewed the record and discovering no error, we affirm for the reasons set forth herein.

Appellant's girlfriend was killed on the night of October 30, 2001, after sustaining a single gunshot wound to the chest. Prior to the shooting, Appellant and the victim had engaged in a physical and verbal altercation that ended when Appellant dragged the victim into the couple's home by her hair. Later that night, a friend of the victim was alone with her at the victim's residence when she told him that Appellant would kill her when he returned. Shortly thereafter, Appellant came home visibly upset and carrying a .25-caliber pistol in his waistband. After offering the victim a ride, which she refused, the friend left the scene.

Local police subsequently received a report that gunshots had been fired at the residence and went to the scene to investigate. Appellant was found by police trying to administer CPR to the victim, who was then lying on the floor next to a sofa. Appellant told the police that gunshots had been fired by a passing motorist while Appellant and the victim were standing in the front doorway of their home. No weapon or shell casings were found at the scene, but blood was discovered on the front doorjamb. No gunshot residue was found on Appellant's hands, but a detective testified that Appellant had run his hands through his hair after being told that police intended to conduct a gunshot-residue test. Appellant was taken to the police station for questioning, where he told several officers that it was his fault that the victim was killed. Appellant never stated that he had shot the victim, but he told a detective, "I did not mean to hurt anybody. It was an accident." He also told the detective that "the bullet was meant for me." However, Appellant also told a deputy jailer that he had pointed a gun at the wall while talking to the victim and that it had gone off, but that he had not meant to shoot her.

Appellant was charged and convicted of murdering his girlfriend. He was sentenced to life imprisonment for murder, and for tampering with physical evidence, he received five years' imprisonment. Appellant's convictions were confirmed on appeal by the Supreme Court of Kentucky in an unpublished opinion.3

Appellant subsequently filed a pro se motion for post-conviction relief pursuant to RCr 11.42 in the Graves Circuit Court on grounds that he had received ineffective assistance of counsel at trial and that he had been denied an impartial jury. Appellant also filed corresponding motions in which he requested appointment of counsel and an evidentiary hearing. Appellant's motion for counsel was granted, and his appointed attorney filed a pleading that supplemented Appellant's original motion with additional arguments, including a contention that Appellant's trial counsel was ineffective for failing to request indigent funds to hire a ballistics expert. Appellant argued that such an expert could have provided support for his defense that his girlfriend was killed in a drive-by shooting and not at close range by Appellant.

By order entered July 3, 2008, the circuit court denied Appellant's RCr 11.42 motion without an evidentiary hearing. In so doing, the court addressed only Appellant's contention that his trial counsel was ineffective for failing to seek funds for a ballistics expert, concluding that Appellant had failed to establish that a different result would have occurred at trial had the services of a ballistics expert been obtained. The court made no mention of Appellant's other arguments, and it appears that Appellant abandoned those claims. This appeal followed.

On appeal, Appellant first argues that the circuit court erroneously applied a more stringent standard in considering his RCr 11.42 claim than authorized by law. Appellant takes particular issue with the circuit court's reliance upon certain language from the Sixth Circuit Court of Appeals' opinion in United States v. Morrow, 977 F.2d 222 (6th Cir. 1992). There the Sixth Circuit held that "[c]ounsel is constitutionally ineffective only if performance below professional standards caused the defendant to lose what he otherwise would probably have won" and that a person claiming ineffective assistance of counsel must establish that counsel was so ineffective "that defeat was snatched from the hands of probable victory." Id. at 229. Appellant contends that these standards run afoul of those set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984).

In Strickland, the U.S. Supreme Court set forth a two-pronged analysis to be used in determining whether the performance of a convicted defendant's trial counsel was so deficient as to merit relief from that conviction.

Id., 466 U.S. at 687, 104 S. Ct. at 2064. The Supreme Court further held that "[t]he 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." Id., 466 U.S. at 694, 104 S. Ct. at 2068. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

Appellant contends that the "reasonable probability" test set forth in Strickland is inconsistent with the aforementioned language set forth in Morrow and that the circuit court consequently erred in relying upon the latter decision. However, we are compelled to disagree. The Supreme Court of Kentucky cited to Morrow in Foley v. Commonwealth, 17 S.W.3d 878, 884 (Ky. 2000), overruled on other grounds by Stopher v. Conliffe, 170 S.W.3d 307 (Ky. 2005), and in Haight v. Commonwealth, 41 S.W.3d 436, 441 (Ky. 2001), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009), and therein relied upon the same language complained of by Appellant in denying appeals for post-conviction relief. The Supreme Court of Kentucky most recently relied upon Morrow in Brown v. Commonwealth, 253 S.W.3d 490, 499 (Ky. 2008), and cited the standard set forth therein in denying another post-conviction appeal.4 Morrow has also been consistently relied upon by Kentucky appellate courts in unpublished decisions regarding RCr 11.42 appeals. Accordingly, the criteria set forth in Morrow remain appropriate for courts to use in evaluating RCr 11.42 claims and have not been found to be inconsistent with the standards created in Strickland. Moreover, as reliance upon Morrow originated with the Supreme Court of Kentucky, we believe that any departure from, or refutation of, those criteria must come from that Court. Thus, Appellant's contention that the circuit court erroneously relied upon overly stringent standards in considering his RCr 11.42 claim must be rejected.

Appellant finally argues that he received ineffective assistance of appellate counsel following his conviction because his appellate attorney failed to argue on direct appeal that at least two jurors should have been stricken for cause due to bias. However, this specific claim was not presented to the circuit court in Appellant's RCr 11.42 motion. Thus, it is unpreserved for our review and must be rejected. Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976).

For the foregoing reasons, the judgment of the Graves Circuit Court is affirmed.

ALL CONCUR.