KAREN K. CALDWELL, District Judge.
This matter is before the Court on Petitioner Leonard Day's 28 U.S.C. § 2254 Petition for a Writ of Habeas Corpus. [DE 1]. Pursuant to local practice and 28 U.S.C. § 636(b)(1)(B), this matter was referred to Magistrate Judge Ingram for a Recommended Disposition. [DE 15]. Petitioner filed his objections to the Recommended Disposition [DE 18], and Respondent filed a response to those objections. [DE 21]. For the reasons stated herein, the Court will adopt the Magistrate Judge's Recommended Disposition denying the Petition and recommending that no Certificate of Appealability should issue.
In September of 2003, Petitioner was convicted by a jury of complicity to murder, tampering with physical evidence, and being a first-degree persistent felony offender. [DE 1 at 1.] Petitioner was sentenced to a term of fifty years imprisonment and is currently serving that sentence. [DE 1 at 1.] The Kentucky Supreme Court described the facts leading to Petitioner's conviction as follows:
[DE 9-6 at 2-3.] Petitioner appealed his conviction directly to the Supreme Court of Kentucky as permitted under §110(2)(b) of the Kentucky Constitution. [DE 9-6 at 3.] He raised three issues in his appeal: "(1) that he was denied the right to a speedy trial; (2) that the trial court improperly admitted a series of pictures of the decaying skeletal remains; and (3) the trial court improperly admitted highly prejudicial evidence of other crimes, wrongs, and bad acts." [DE 9-6 at 2.] The Supreme Court of Kentucky unanimously affirmed Petitioner's conviction. [DE 9-6 at 2.]
After exhausting his direct appeal, Petitioner filed pro se motions to vacate his convictions pursuant to Kentucky Rule of Criminal Procedure 11.42 and Kentucky Rule of Civil Procedure 60.02 in the Boone County Circuit Court. [DE 1 at 2.] Petitioner asserted that he was entitled to relief based on defense counsel's failure to call Thomas Jansen ("Jansen") as a witness, defense counsel's failure to call Leslie Parrett ("Parrett") as a witness, and a third ground for relief that is not presently at issue. [DE 9-7 at 36.] The Boone Circuit Court appointed the Department of Public Advocacy to represent Petitioner and conducted an evidentiary hearing in which Bryan Burlew, Petitioner's trial counsel ("trial counsel" or "Burlew"), was the sole witness. [DE 9-7 at 35-36.] The Boone Circuit Court denied Petitioner's motions, finding that "counsel made certain decisions regarding trial strategy, in concert with his client," and that it could not say that those strategic decisions were unreasonable. [DE 9-7 at 39.]
On August 3, 2012, the Court of Appeals of Kentucky affirmed the Boone Circuit Court's denial of Petitioner's motions. The Court of Appeals affirmed the Boone Circuit Court's ruling, holding that trial counsel's decision not to call Jansen or Parrett was the result of reasonable trial strategy. The Supreme Court of Kentucky thereafter denied discretionary review. [DE 1 at 3.]
Finally, on April 11, 2014, Petitioner filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. [DE 1.] The Magistrate Judge issued his Recommended Disposition on June 17, 2015, recommending that the Petition for a Writ of Habeas Corpus be denied. [DE 15.]
In his objections, Petitioner argues that the Magistrate Judge applied an incorrect standard of review. [DE 18 at 17-19.] He also argues that the Court of Appeals of Kentucky erred in applying Strickland to his ineffective assistance of counsel claim and made unreasonable factual findings regarding Jansen and Parrett, who Petitioner argues should have been called as witnesses during his trial. [DE 18 at 9-17, 19-26.]
First, Petitioner asserts that Harrington v. Richter, 562 U.S. 86 (2011), does not apply to this case and that, even if it is applicable, it does not require the "doubly" deferential standard applied by the Magistrate Judge. Petitioner is wrong on both counts.
Harrington applies here because the Petitioner filed a §2254 petition challenging a state court's rejection of an ineffective assistance of counsel claim. Petitioner claims that Harrington applies only to "summary dispositions" by state courts. [DE 18 at 17.] Harrington did involve a "one-sentence summary order" issued by a state court, 562 U.S. at 86-87, but that fact does not mean that Harrington is inapplicable to the present case. In its discussion, the Supreme Court stated: "Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision. . . ." Id. at 102 (emphasis added) (citations omitted). This statement indicates that Harrington is not limited to cases involving summary dispositions because the Supreme Court clearly contemplated other non-summary decisions in its analysis. Furthermore, it makes no sense to apply a more deferential standard to a state court's summary disposition that contains no explanation than to a state court decision that articulates a rationale. Therefore, Harrington applies to this case.
Next, Petitioner argues that the "double deference" standard established in Harrington is not required here. [DE 18 at 18.] Again, Petitioner's argument on this point is meritless. There is no dispute that Strickland v. Washington, 466 U.S. 668 (1984), properly governed the Court of Appeals of Kentucky's analysis of Petitioner's ineffective assistance claim, and Petitioner filed his Petition under 28 U.S.C. § 2254. In assessing the claim of ineffective assistance of counsel in Harrington under 28 U.S.C. § 2254, the Supreme Court emphasized that "[t]he standards created by Strickland and § 2254(d) are both highly deferential . . . and when the two apply in tandem, review is doubly so." Id. at 105 (citations omitted). Since the present case involves a challenge to a state court's application of Strickland brought under § 2254, the double deference standard applies. Thus, the Magistrate Judge properly applied the standard of review articulated in Harrington.
Under the Harrington standard, "the pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard." 562 U.S. at 101. "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. at 105. The Supreme Court emphasized that "[a] state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Id. at 101. "It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 102.
In turn, Strickland requires the party asserting ineffective assistance of counsel to show both deficient performance and prejudice. 466 U.S. at 687. The Supreme Court cautioned that "judicial scrutiny of counsel's performance must be highly deferential" and include a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" in order to "eliminate the distorting effects of hindsight." Id. at 689. Indeed, the Court warned that "it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. Therefore, "the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (citations and internal quotations omitted).
The Court of Appeals of Kentucky evaluated Petitioner's claim under the Strickland standard and held that he did not receive ineffective assistance of counsel. Thus, the essential question presented to this Court under § 2254 is whether there is a "reasonable argument" that Petitioner's counsel satisfied Strickland. Harrington, 562 U.S. at 105. If a reasonable argument exists, then the Court of Appeals' decision must be upheld.
There is a reasonable argument that trial counsel satisfied Strickland with respect to Jansen.
Before the Court of Appeals of Kentucky, Petitioner argued that his trial counsel provided ineffective assistance by failing to secure Jansen's presence at trial or to otherwise ensure the introduction of his statements. [DE 1 at 21.] He asserts that the defense was going to present Jansen to the jury as an "alternate perpetrator" and his trial counsel should have introduced evidence that Jansen and Stevens were in a "tumultuous relationship" along with several other facts and statements that implicated Jansen in the murder. [DE 1 at 20-21.] Prior to trial, the defense failed to successfully subpoena Jansen and the trial court ruled that Jansen was not an unavailable witness because he had recently appeared in a family court proceeding, so his statements were not admissible as hearsay under the Kentucky Rules of Evidence. [DE 1 at 21.] During trial, Petitioner's counsel did not subpoena Jansen or request a continuance to do so. [DE 1 at 21.]
The Court of Appeals concluded that "trial counsel's decision not to subpoena Jansen or to request a continuance to subpoena him was reasonable trial strategy." [DE 9-10 at *3.] In the present case, Petitioner makes two main arguments: (1) that the Court of Appeals' decision was based on an unreasonable determination of the facts, and (2) that the Court of Appeals' decision was an unreasonable application of Strickland. [DE 18 at 9.] Accordingly, he objects to the Magistrate Judge's finding that "there is a reasonable argument that counsel satisfied Strickland's deferential standard" with regard to Jansen. [DE 15 at 13.]
First, Petitioner argues that the Court of Appeals of Kentucky's underlying factual determination that trial counsel intentionally ceased efforts to locate Jansen was unreasonable. The Court of Appeals found that "it is clear from the record that counsel did, in fact, make attempts to locate [Jansen], but intentionally ceased those efforts." [DE 9-10 at *3.] It held that "[i]n light of Jansen's potential — and likely — testimony, it is reasonable to assume trial counsel terminated his efforts at locating Jansen for a strategic reason." Id. The Court of Appeals explained that `[i]f trial counsel had subpoenaed Jansen, Day risked Jansen convincingly denying everything and destroying Day's defense." Id.
Petitioner is essentially arguing that his trial counsel did not make a strategic choice, but rather an error or omission in not securing Jansen for trial. He objects to the Magistrate Judge's finding that it was not unreasonable for the Court of Appeals to conclude that the decision not to call Jansen as a witness was a strategic decision. [DE 15 at 16-17.]
A determination of a factual issue made by a state court, such as the above determination by the Court of Appeals, is presumed to be correct. 28 U.S.C. § 2254(e)(1). The Petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. Id.; see also Ward v. Sernes, 334 F.3d 696, 703-04 (7th Cir. 2003) (". . . § 2254(e)(1) provides a mechanism by which the petitioner can prove unreasonableness. If the petitioner can show that the state court determined the underlying factual issue against the clear and convincing weight of the evidence, the petitioner has not only established that the court committed error in reaching a decision based on that faulty premise, but has also gone a long way towards proving that it committed unreasonable error.").
Petitioner points to two pieces of evidence to support his argument that the Court of Appeals made an erroneous factual determination. First, he argues that the factual finding was unreasonable because his trial counsel was still attempting to locate Jansen on the day before trial began. [DE 18 at 12-13.] His argument is that if his trial counsel was still looking for Jansen, then the finding that he intentionally ceased efforts to locate Jansen was unreasonable. Petitioner overlooks the fact that the Court of Appeals was referring to trial counsel's decision not to subpoena Jansen or request a continuance after trial began. [DE 9-10 at *3.] ("During trial, Day's trial counsel chose not to subpoena Jansen or request a continuance to do so.") (emphasis added). Therefore, trial counsel's efforts to locate Jansen before trial began have no bearing on the Court of Appeals' finding that trial counsel later discontinued seeking Jansen during trial.
Second, Petitioner points to his trial counsel's testimony at the state post-conviction evidentiary hearing. [DE 18 at 13-15.] Petitioner argues that his trial counsel "denied having a strategic reason for not calling Jansen as a witness at trial," which makes the Court of Appeals' factual finding unreasonable. [DE 18 at 13.] The Magistrate Judge found that "Petitioner overstates Burlew's testimony" because "Burlew's complete testimony shows that, instead of definitively explaining why he did not call Jansen or seek a continuance, he equivocated." [DE 15 at 16.] The Magistrate Judge correctly observed that trial counsel equivocated during his testimony:
[DE 15 at 16-17] (emphasis in original) (citations omitted).
"Burlew's equivocation," according to the Magistrate Judge, "means Petitioner overstates that the failure to seek a continuance was necessarily
The Court of Appeals based its factual finding on the potentially damaging nature of Jansen's testimony. It is indeed reasonable to assume, as the Court of Appeals did, that trial counsel intentionally ceased searching for Jansen because calling him risked more harm than good to the defense. That factual finding is not rendered unreasonable due to trial counsel's testimony in which he could not state with certainty that his failure to secure Jansen as a witness was not a strategic decision. Trial counsel's testimony, which is given little weight to begin with, left open the possibility that not calling Jansen was a strategic decision, so the Court of Appeals' finding was not against the clear and convincing weight of the evidence. Thus, the Court of Appeals' underlying factual determination that Petitioner's trial counsel intentionally ceased efforts to locate Jansen was not unreasonable.
Next, Petitioner argues that the Court of Appeals unreasonably applied Strickland when it concluded that his trial counsel's decision not to call Jansen was a reasonable strategy. The Magistrate Judge determined that "it was not unreasonable for the Court of Appeals to conclude that counsel's decisions not to subpoena Jansen or seek a continuance were reasonable trial strategy." [DE 15 at 13.] In his objections, Petitioner argues that "[i]t simply was not objectively reasonable for Burlew not to attempt to secure Jansen as a witness at trial" because "counsel had no strategic reason not to call Jansen." [DE 18 at 16.] He asserts that he "would have had nothing to lose by calling Jansen to the stand." Id.
Contrary to Petitioner's argument, the Court of Appeals articulated a valid strategic reason for not calling Jansen. Given the risk that Jansen might convincingly deny any wrongdoing and undermine Day's defense, "by choosing not to subpoena Jansen, Day was able to allude to Jansen's guilt but avoid the risk." [DE 9-10 at *3.] The Court of Appeals found that trial counsel's performance was not deficient because he was carrying out this reasonable trial strategy. Thus, the Court of Appeals stated a reasonable argument that Petitioner's trial counsel satisfied Strickland, meaning that Petitioner's claim of ineffective assistance regarding Jansen must be denied.
There is also a reasonable argument that trial counsel satisfied Strickland by not calling Parrett.
Petitioner argues that his trial counsel was ineffective because he failed to call Parrett even though she was present and available during trial. [DE 1 at 26-28.] Petitioner asserts that Parrett was "Steven's best friend who saw Stevens alive in both August and September of 1999, some four months after the Commonwealth claimed Day participated in her murder" and that she "was sure of the dates on which she saw Stevens in August and September because Parrett had just started a new job." [DE 1 at 26.]
The Court of Appeals also rejected this claim, finding that counsel's decision not to call Parrett "was born out of a careful investigation and strategic weighing of her anticipated testimony, [trial counsel's] judgment of her demeanor, and credibility." [DE 9-10 at *4.] The Court of Appeals concluded that "[a]lthough calling Parrett to testify might also have been reasonable, we agree that counsel's strategic decision not to call her as a witness did not constitute ineffective assistance of counsel". [DE 9-10 at *4.] The Magistrate Judge concluded that Petitioner's challenges to the Court of Appeals findings regarding Parrett were meritless. [DE 15 at 20.]
Petitioner makes two main arguments regarding Parrett: (1) the decision not to call Parrett was objectively unreasonable, so the Court of Appeals application of Strickland was unreasonable, and (2) trial counsel promised the jury they would hear from Parrett, so the failure to actually call her constituted ineffective assistance. [DE 18 at 19-25.]
Relevant to Petitioner's first argument, the Court of Appeals stated:
[DE 9-10 at *4.] Trial counsel did indeed testify to his concerns about using Parrett as a witness during the state post-conviction evidentiary hearing:
[DE 18 at 22-23.] The Magistrate Judge concluded that "Because Petitioner acknowledges that trial counsel has a concern about the passage of time and its effect upon Parrett's reliability, which concern formulated the basis of the Court of Appeals' determination that counsel made a strategic decision, Petitioner has not established that this determination by the Court of Appeals was unreasonable." [DE 15 at 21.]
There is a reasonable argument that Petitioner's trial counsel satisfied Strickland when he chose not to call Parrett. As trial counsel's testimony indicates, he was concerned about the four year passage of time. He also stated he was concerned about appearing weak by calling only a single witness, and thought it would be better to argue to the jury that the Commonwealth had failed to prove its case. Trial counsel made the strategic decision not to call Parrett based on these legitimate concerns, so there is at least a reasonable argument that his performance was not deficient. Therefore, the Court of Appeals' application of Strickland was not unreasonable.
Next, Petitioner argues that trial counsel provided ineffective assistance because he told the jury that it would hear Parrett's testimony, then failed to deliver on that promise. [DE 18 at 24-25.] Petitioner specifically asserts that neither the Court of Appeals nor the Magistrate Judge addressed this argument. [DE 18 at 24.]
It must first be noted that while Petitioner claims that his trial counsel made this promise to the jury, he provides no citation in support of his assertion. See [DE 18 at 24-25.] This is important because Petitioner also previously claimed that his trial counsel promised the jurors that they would hear from Jansen, but the Magistrate Judge refuted that claim. [DE 15 at 14, n. 3.] ("There was no such promise. Indeed, trial counsel stated that Jansen would "probably not testify," . . .). Therefore, this Court views Petitioner's claim that his trial counsel promised the jury that Parrett would testify with skepticism.
Even accepting that trial counsel did tell the jury that it would hear from Parrett, counsel's failure to actually call Parrett did not amount to ineffective assistance of counsel. Petitioner cites U.S. ex rel. Hampton v. Leibach, 347 F.3d 219 (7th Cir. 2003), for the proposition that "little is more damaging than to fail to produce important evidence that has been promised in an opening." Id. at 257 (citing Anderson v. Butler, 858 F.2d 16, 17 (1st Cir. 1988)).
However, in the same case the Seventh Circuit also noted that "[a]bandoning the promise may be necessary when things do not pan out as the attorney reasonably expected or the detriments of the promised evidence become clear only later." Id. at 259. In footnote 18, the Leibach Court observed that "[t]he record is silent as to [the trial attorney]'s reasons, if any, for abandoning the promise to present evidence that [the petitioner] was not affiliated with a gang." Id. at 259 n.18.
In the present case, the record contains a reasonable explanation for why trial counsel did not present Parrett's testimony despite any prior statements to the jury. As the trial progressed, trial counsel felt as if the Commonwealth had failed to prove its case: "In fact at — by the conclusion of the Commonwealth's case in chief, as I have testified, I felt like we had it won. I didn't feel like the Commonwealth had proved its case." [DE 15 at 15.] Trial counsel feared that calling only a single witness, Parrett, would make the defense's case appear weak and believed the better strategy was to "present to the jury that the Commonwealth had not proven their case." [DE 18 at 22-23.] This is a plausible reason for not ultimately calling Parrett, especially when coupled with trial counsel's concerns about Parrett's credibility due to the four years that had passed. Thus, the present case is distinguished from Leibach. Trial counsel's decision not to call Parrett despite any prior statements to the jury did not render his performance deficient.
Lastly, the Leibach Court, which found that trial counsel's abandonment of a promise to the jury in that case was not legitimate trial strategy, stated that the "breach of promises he made in the opening statement was not so prejudicial that it would support relief in and of itself . . ." 347 F.3d at 260. Likewise in the present case, even if trial counsel's decision to break with his earlier statements to the jury and not call Parrett was not a reasonable trial strategy, it alone would not render trial counsel's performance deficient. Since this Court has found that the Court of Appeals' application of Strickland was not unreasonable in the other respects asserted by Petitioner, his claim could not succeed on this argument alone.
For these reasons, Petitioner cannot show that the Court of Appeals unreasonably applied Strickland to trial counsel's decision not to call Parrett.
In order for this Court to issue a Certificate of Appealability, a petitioner must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To meet this standard, a "petitioner must 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). Petitioner objects to the Magistrate Judge's determination that no Certificate of Appealability should issue, arguing that reasonable jurists might disagree with the aforementioned findings of this Court. [DE 18 at 26-28.]
Reasonable jurists could not disagree that this Court properly applied the highly deferential Harrington standard to the facts of this case. There are reasonable arguments that trial counsel satisfied Strickland despite not calling Jansen or Parrett. Jurists could not disagree that these reasonable arguments exist, so they could not find that the conclusion that the Court of Appeals of Kentucky did not unreasonably apply Strickland is debatable or wrong. Therefore, no Certificate of Appealability should issue.
Having reviewed the Recommended Disposition along with the objections filed by Petitioner and finding no error, this Court adopts the Magistrate Judge's recommendations. Accordingly,
