Opinion
Civil Action No. 1:04CV-00115-JHM.
August 26, 2005
FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATION
BACKGROUND
Petitioner, pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 with a supporting memorandum (DN 2, 3). The petition and supporting memorandum identify six (6) separate grounds for relief (DN 2, 3). The district court referred this matter to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B) (DN 6).
Respondent has filed an answer and response to the petition as well as a motion to dismiss, or in the alternative, motion for summary judgment (DN 17, 18). Petitioner has filed an objection to the dispositive motion (DN 19) and a cross-motion for summary judgment (DN 20). For the reasons set forth below the undersigned concludes that an evidentiary hearing is not necessary to address the six claims asserted by petitioner. The issues raised by the petitioner are fully developed and this matter is ripe for determination.
FINDINGS OF FACT
Petitioner, Kenneth Ray Dillingham ("Dillingham"), and his co-defendant, Robert Jurell Hicks ("Hicks"), were convicted respectively of first degree robbery and complicity to first degree robbery following a jury trial before the Circuit Court in Metcalfe, Kentucky (DN 17, Appendix at 57). During the trial two employees of the Edmonton State Bank, Clifton Thompson and Bernice Wisdom, positively identified Dillingham as the man who robbed the bank on December 1, 1997 (DN 17, Appendix at 58-59). Additionally, a bank customer testified that he saw Dillingham in the bank just prior to the robbery (DN 17, Appendix at 59).
The evidence at trial showed that Dillingham handed a note to Mr. Thompson that read "This is a robbery. Don't push any buttons or call the police." (DN 17, Appendix at 58). Additionally, Dillingham told Mr. Thompson that he had a gun (DN 17, Appendix at 58). Although no one saw a gun, Dillingham kept his right hand in his pocket at all times as if the pocket contained a gun (DN 17, Appendix at 58-59). Bank employee Bernice Wisdom emptied the three teller drawers and handed the contents to Dillingham (DN 17, Appendix at 58, 59). Dillingham then placed the money in his briefcase with his left hand while he kept his right hand in his pocket (DN 17, Appendix at 58). Then Dillingham exited the bank and got into the passenger side of a waiting blue Lincoln Town Car that fled the scene (DN 17, Appendix at 58).
A total of $13,000 was stolen from the bank (DN 17, Appendix at 59). Included with the stolen money were a number of $20 bills in "bait money" (DN 17, Appendix at 59). The bank kept a record of the serial numbers on these "bait money" bills (DN 17, Appendix at 59). The bait money is only removed from the teller drawer during a robbery in order to assist in the capture of the robber (DN 17, Appendix at 59). Bernice Wisdom testified that she included the bait money from each of the three teller drawers when she emptied the drawers and handed the contents to Dillingham (DN 17, Appendix at 59-60).
A subsequent search of Hicks' residence in Indiana uncovered a coffee can filled with over $4,000 in currency of different denominations (DN 17, Appendix at 60). Some of the bait money stolen from the bank was found in the coffee can (DN 17, Appendix at 60). Additionally officers found that Hicks' wallet contained over $1,000 in cash, including one of the bait money twenty dollar bills (DN 17, Appendix at 60). A search of Hicks' vehicle revealed a set of clothes that was identified in court by two witnesses as being the same or similar to the clothes worn by Dillingham (DN 17, Appendix at 60). A search of the car also uncovered a Kentucky road map folded to show the Edmonton area (DN 17, Appendix at 60).
Following the jury's guilty verdict, the trial court sentenced Dillingham and Hicks to twenty years imprisonment (DN 17, Appendix at 57). Dilllingham and Hicks timely appealed to the Supreme Court of Kentucky (DN 17, Appendix at 57).
In his direct appeal briefs Dillingham argued that the trial court erred by refusing to grant a directed verdict of acquittal on both counts; he was denied due process of law because the Commonwealth used a suggestive photo lineup and the Commonwealth permitted its witnesses to see Dillingham prior to identifying him at trial; he was denied due process because the trial court denied his request for a state funded investigator to assist in preparing his defense; and he was denied due process when the trial court overruled his objection to the Commonwealth having a testifying witness, Detective Antle, present at the counsel table throughout the trial (DN 17, Appendix at 4-33, 55-56). The Supreme Court of Kentucky found no merit to each of the above arguments and it affirmed his conviction and sentence (DN 17, Appendix at 57-69).
Notably, the Supreme Court of Kentucky affirmed Hicks' conviction but reversed his sentence and remanded for a new sentencing hearing (DN 17, Appendix at 57-58, 68-69). The appellate court found admission of hearsay evidence, a National Crime Information Center ("NCIC") report regarding Hicks, during the sentencing phase of trial rose to the level of palpable error because "there is a substantial possibility that Hicks would not have received the maximum punishment had the NCIC report been objected to and excluded from evidence" (DN 17, Appendix at 69). In reaching its conclusion the Supreme Court of Kentucky noted this was the only evidence introduced during the sentencing phase (DN 17, Appendix at 69).
The NCIC printout was not certified as required by KRS 422.040 and the Commonwealth failed to lay the proper foundation to introduce the contents of the printout as a business record exception to the hearsay rule (DN 17, Appendix at 68-69).
A little over one year later, Dillingham filed a motion to vacate, set aside or correct sentence pursuant to Ky.R.Crim.P. 11.42 and a motion for a hearing (DN 17, Appendix at 72-79). In an order entered August 11, 2000, the trial court overruled these motions but "in the interests of justice" scheduled oral argument on the question of whether introduction of the NCIC report was palpable error as to Dillingham (DN 17, Appendix at 72-75).
In an order entered March 1, 2001, the trial court noted that upon remand a new sentencing hearing for Hicks had not been necessary because the Commonwealth and Hicks agreed to a new sentence of twelve years (DN 17, Appendix at 81). The trial court reported that Dillingham rejected the same offer from the Commonwealth and had demanded a sentence of no more than two years (DN 17, Appendix at 81-82). The trial court concluded the Kentucky Supreme Court's finding of palpable error "was not and is not applicable" to Dillingham's sentencing because the NCIC report did not mention Dillingham (DN 17, Appendix at 82). The trial court then affirmed Dillingham's sentence of twenty years (DN 17, Appendix at 82-83).
The trial court noted that the NCIC report showed Hicks' prior arrests and convictions (DN 17, Appendix at 81).
Dillingham's subsequent appeal focused on the trial court's order entered August 11, 2000 (DN 17, Appendix at 87-95). Specifically, Dillingham argued the trial court should have conducted an evidentiary hearing on whether he was competent to be tried or to proceed pro se at trial (DN 17, Appendix at 92-95). Citing Commonwealth v. Strickland, 375 S.W.2d 701 (Ky. 1964), Dillingham argued the issue of competency to stand trial may be raised in a Rule 11.42 motion if the issue was not adjudicated previously (DN 17, Appendix at 93-95). In response the Commonwealth argued Rule 11.42 was not the proper vehicle to challenge Dillingham's competency to stand trial (DN 98-106). The Commonwealth also argued that Strickland had been overruled by statutory changes to KRS 504.070 that became effective July 15, 1982 (DN 17, Appendix at 105). In his reply brief, Dillingham again cited Strickland in support of his position (DN 17, Appendix at 107-110).
The Kentucky Court of Appeals held that Dillingham procedurally defaulted his competency claim because it was not raised before the trial court and on direct appeal (DN 17, Appendix at 112-113). The appellate court found Strickland factually distinguishable because unlike Dillingham, Strickland's competency to stand trial had been raised both before and during the trial proceeding (DN 17, Appendix at 113). The Supreme Court of Kentucky subsequently denied Dillingham's motion for discretionary review (DN 17, Appendix at 114).
On March 25, 2003, Dillingham filed a petition for writ of habeas corpus in the Lyon Circuit Court that named Warden Glenn Haberlin as the respondent (DN 17, Appendix at 115-120). Dillingham argued his conviction was void ab initio because the prosecutor used perjured testimony from Detective Tony Wells to obtain an indictment against Dillingham (DN 17, Appendix at 115-120). In an order entered August 14, 2003, the Lyon Circuit Court granted the warden's motion to dismiss because a habeas petition is not to be used to challenge the sufficiency of evidence used to convict nor is it to be used as a substitute for a direct appeal (DN 17, Appendix at 122-124). The Kentucky Court of Appeals affirmed the Lyon Circuit Court's order because "the matters alleged in the petition are not the proper subject of habeas corpus relief" (DN 17, Appendix at 125). The Supreme Court of Kentucky subsequently denied Dillingham's motion for discretionary review (DN 17, Appendix at 126).
CONCLUSIONS OF LAW
Since Dillingham filed his petition for writ of habeas corpus on July 13, 2004 (DN 2, 3), review of the State court decisions regarding his claims is governed by Chapter 153 of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 336 (1997). As to each claim made by Dillingham, the Court must first determine whether a constitutional right has been violated. Williams v. Taylor, 529 U.S. 362, 367 (2000). If the answer is in the affirmative and the State court adjudicated the claims on their merits, then this Court must employ the standard of review set forth in 28 U.S.C. § 2254(d) to determine whether to grant the petition for writ of habeas corpus.Williams, 529 U.S. at 367, 402-403, 412-413. As amended, by Chapter 153 of AEDPA, § 2254(d) provides as follows:
"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 facts in light of the evidence presented in the State court proceeding."
Under the "contrary to" clause of § 2254(d)(1), the Court may grant the writ if "the state court arrives at a conclusion opposite to that reached by . . . [the Supreme Court] . . . on a question of law or if the state court decides a case differently than . . . [the Supreme Court] . . . has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-413. Under the "unreasonable application" clause of § 2254(d)(1), the Court may grant the writ if "the state court identifies the correct governing principle from . . . [the Supreme Court's] . . . decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. To meet this standard the State court's application of clearly established federal law must be more than incorrect, it must be objectively unreasonable. Id. at 409-411. In sum, § 2254(d), as amended by Chapter 153 of AEDPA, places a new constraint on the power of the Court to grant a petition for writ of habeas corpus as to constitutional claims adjudicated on the merits in the state courts. Williams, 529 U.S. at 412.
A
In Ground 1 Dillingham asserts that his Sixth Amendment right to a fair trial and his Fourteenth Amendment right to due process and equal protection of the law were violated because the Commonwealth used a suggestive photo lineup and its witnesses were permitted to see Dillingham prior to identifying him at trial (DN 2, 3). He argues the State appellate court's adjudication of his constitutional claim was contrary to or an unreasonable application of United States Supreme Court precedent articulated in Neil v. Biggers, 409 U.S. 188, 199 (1972),United States v. Wade, 388 U.S. 218, 228-229 (1969), andStovall v. Denno, 388 U.S. 293, 302 (1967) (DN 2, 3).
The Supreme Court has articulated a two-step process for determining whether a photographic identification procedure violates due process. Neil v. Biggers, 409 U.S. 188, 196-201 (1972). First, the Court must determine whether the identification procedure used is unduly suggestive. Id. at 198-199. If the answer is yes, then the Court must determine whether under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive. Id. at 199.
The trial court conducted an extensive suppression hearing and determined that the photo array was not unduly suggestive because the individuals in all six photos are physically similar and clearly in custody (DN 17, Appendix at 67-68). On appeal, the Supreme Court of Kentucky viewed the six photographs shown to the witnesses and agreed with the trial court's assessment (DN 17, Appendix at 68). The factual determinations by the State courts are presumed to be correct. 28 U.S.C. § 2254(e)(1). Notably, Dillingham has not presented to this Court the photos at issue. Instead, he asks the Court to accept his opinion that the photographs are unduly suggestive. Clearly, Dillingham has not rebutted the State court factual findings with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Equally clear, the decision of the Supreme Court of Kentucky is not contrary to, nor does it involve an unreasonable application of, a clearly established rule of law expressed by the Supreme Court of the United States. Williams v. Taylor, 529 U.S. 362, 367 (2000). True, the State appellate court cited Thigpen v. Cory, 804 F.2d 893 (6th Cir. 1986) and Stewart v. Duckworth, 93 F.3d 262 (7th Cir. 1993) instead of Supreme Court cases such as Biggers, Wade, and Stovall (DN 17, Appendix at 67). However, these Sixth and Seventh Circuits cases accurately express the rule of law in Biggers, Wade, andStovall. Furthermore, the Supreme Court of Kentucky has made a reasonable determination of facts in light of the evidence presented during the State court proceeding. 28 U.S.C. § 2254(d)(2). In sum, under the standard of review set forth in § 2254(d) Dillingham is not entitled to a writ on this claim.
In Slack v. McDaniel, the Supreme Court established a single prong test that is used to determine whether a Certificate of Appealability should issue on a habeas claim denied on the merits. 529 U.S. 473, 484 (2000). Since the undersigned recommends rejecting Ground 1 on the merits, Dillingham must demonstrate that reasonable jurists would find it debatable whether he has stated a valid claim of the denial of a constitutional right. Id. Since the factual findings of the State courts regarding the photo array have not been rebutted by clear and convincing evidence, the undersigned is confident that jurists of reason would not find it debatable whether Ground 1 states a valid claim of the denial of a constitutional right. Thus, the undersigned does not recommend issuance of a Certificate of Appealability as to Ground 1.
B
Next, Dillingham asserts he was denied his Fourteenth Amendment right to equal protection of the law when the Supreme Court of Kentucky found the use of an uncertified NCIC report inadmissible as evidence, which was used to benefit co-defendant Hicks, but not Dillingham (DN 2, 3, 19). Respondent argues federal review of the claim is barred because Dillingham procedurally defaulted the claim in the State courts and he has failed to excuse his procedural default by making a show of "cause" and "prejudice" or a that "fundamental miscarriage of justice" will occur in the absence of federal review (DN 18 at 10-13). In response, Dillingham attempts to show "cause" by alleging ineffective assistance of appellate counsel (DN 19 at 3).
If a habeas petitioner fails to comply with a State procedural rule and that failure provides an adequate and independent grounds for the State's denial of relief, then federal review is barred absent a showing of cause and prejudice. Harris v. Reed, 489 U.S. 255 (1989); Murray v. Carrier, 477 U.S. 478 (1986);Wainwright v. Sykes, 433 U.S. 72, 78-79 (1977). Here, Dillingham could and should have raised the claim in his direct appeal, as did his co-defendant Hicks (DN 17, Appendix at 12-13). Since he did not, he is now procedurally barred from doing so.Bronston v. Commonwealth, 481 S.W.2d 666, 667 (Ky. 1972).
Federal review of this claim is barred unless Dillingham makes a showing of "cause" and "prejudice." To establish "cause" Dillingham must demonstrate that something external to him impeded his efforts to comply with the State's procedural rule.Coleman v. Thompson, 501 U.S. 722 (1991). For example, "cause" is established if the procedural default occurred as a result of ineffective assistance of counsel of a constitutional magnitude.Murray v. Carrier, 477 U.S. 478, 489 (1986). Here, Dillingham argues a "showing of `cause' and `prejudice' is made on the fact that appellate counsel failed to raise this issue for Petitioner, as it was raised for co-defendant Hicks, since the appeals were consolidated" (DN 19 at 3).
In Strickland v. Washington, the Supreme Court established a two-prong test that is used to determine whether a defendant has been deprived of a fair trial as a result of errors by counsel. 466 U.S. 668, 687 (1984). To satisfy the first prong of the test, a defendant must demonstrate that counsel's "representation fell below an objective standard of reasonableness." Id. at 687, 688. In assessing counsel's performance the Court must be highly deferential because it "is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and 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. at 689. For this reason, the Court must make every effort to eliminate the distorting effects of hindsight and evaluate the conduct from counsel's perspective at the time it occurred. Id. at 689-690. Due to the "difficulties inherent in making the evaluation," the Court must indulge a strong presumption that counsel's "conduct falls within the wide range of reasonable professional assistance." Id. at 689. Thus, a defendant "must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689 (citation omitted). In summary, a defendant must identify the acts or omissions he alleges are not the result of reasonable professional judgment and the Court must "determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance." Id. at 690.
To satisfy the second prong of the Strickland test, a defendant must demonstrate he has been prejudiced by the alleged deficient performance. Id. at 687. To do so, 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. Id. at 694. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id.
The Court need not conduct the two-prong inquiry in the order identified or even address both parts if a defendant makes an insufficient showing on one part. Id. at 697. For example, if the Court determines a defendant failed to satisfy the prejudice prong then it need not determine whether counsel's performance was deficient. Id. The two-prong test enunciated inStrickland applies to claims of ineffective assistance of appellate counsel. Smith v. Murray, 477 U.S. 527, 536 (1986).
The undersigned will address first the prejudice prong underStrickland. Under this prong, Dillingham must show there is a "reasonable probability" that, but for appellate counsel's failure to raise the sentencing claim on direct appeal, the result of Dillingham's appeal would have been different. Strickland, 466 U.S. at 694. Certainly, if the sentencing claim had been raised on direct appeal Dillingham's appellate counsel could have demonstrated that admission of the NCIC report was improper under Kentucky law. However, the error was harmless as to Dillingham because the NCIC report did not mention him. In sum, Dillingham cannot show that there is a "reasonable probability" that, but for appellate counsel's failure to raise the sentencing claim, the result of his appeal would have been different.
As to co-defendant Hicks, the Supreme Court of Kentucky found introduction of the NCIC printout was "clearly improper" because it was not certified as required by KRS 422.040 and the Commonwealth failed to lay the proper foundation to introduce it under the business record exception to the hearsay rule (DN 17, Appendix at 68).
The Supreme Court of Kentucky determined there was a substantial possibility that Hicks would not have received the maximum sentence of 20 years had this evidence regarding his criminal history been excluded during the sentencing phase (DN 17, Appendix at 69).
Nor has Dillingham satisfied the performance prong underStrickland. In essence, he is second-guessing appellate counsel's assistance after an unfavorable result. Since the NCIC report has nothing to do with Dillingham it was appropriate for appellate counsel to winnow out this argument and focus on the arguments pertaining to Dillingham that are more likely to prevail. Smith, 477 U.S. at 536 (quoting Jones v. Barnes, 463 U.S. 745, 751-752 (1983)). Since Dillingham failed to satisfy both prongs under Strickland, he has not made a showing of "cause" to excuse his procedural default. For this reason, federal review of the claim in Ground 2 is barred.
In Slack v. McDaniel, the Supreme Court established a two-prong test that is used to determine whether a Certificate of Appealability should issue on a habeas claim denied on procedural grounds. 529 U.S. 473, 484-485 (2000). To satisfy the first prong of the test, Dillingham must demonstrate "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." Id. at 484. To satisfy the second prong, Dillingham must show "jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. Notably, the Court need not conduct the two-prong inquiry in the order identified or even address both parts if Dillingham makes an insufficient showing on one part. Id. at 484. For example, if the Court determines Dillingham failed to satisfy the procedural prong then it need not determine whether the constitutional prong is satisfied.Id.
For the reasons set forth above, the undersigned concludes that a plain procedural bar is present and jurists of reason would not find it debatable that in the State courts Dillingham procedurally defaulted the claim in Ground 1. Slack v. McDaniel, 529 U.S. 473, 484-485 (2000). Further, the undersigned concludes that jurists of reason would not find it debatable that federal review is barred because Dillingham has failed to show "cause" and "prejudice" to excuse his procedural default. For these reasons, the undersigned does not recommend issuance of a Certificate of Appealability as to the claim in Ground 2.
C
In Ground 3 Dillingham alleges he was "denied his 6th Amendment right to counsel, after requesting counsel upon his arrest, which abdicated his 14th Amendment right to due process and equal protection of the law" (DN 2). In Ground 4 Dillingham alleges he "was denied his 6th Amendment right to a fair trial when the court refused to rule on his suppression motion, abdicating his 14th Amendment right to due process and equal protection of the law" (DN 2). Respondent argues federal review of both claims is barred because Dillingham did not present these claims to the Kentucky courts and he has failed to demonstrate "cause" and "prejudice" to excuse his procedural defaults in the State courts (DN 18 at 13-14). In his reply, Dillingham argues that he did not procedurally default these claims because he presented them to the trial court in his Rule 11.42 motion (DN 19 at 3-5).
If a habeas petitioner fails to comply with a State procedural rule and that failure provides adequate and independent grounds for the State's denial of relief, then federal review is barred absent a showing of cause and prejudice. Harris v. Reed, 489 U.S. 255 (1989); Murray v. Carrier, 477 U.S. 478 (1986);Wainwright v. Sykes, 433 U.S. 72, 78-79 (1977). While Dillingham may have presented both claims in his Rule 11.42 motion, he failed to present those claims to the State appellate courts because they are not included in his appellate brief or his reply brief(DN 17, 87-95, 107-110). Further, Dillingham is now procedurally barred from presenting the claims to the Kentucky Court of Appeals. Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983). Since Dillingham's procedural default provides adequate and independent grounds for the State's denial of relief and Dillingham has failed to show "cause" to excuse his procedural defaults, federal review of the claims in Grounds 3 and 4 is barred. Reed v. Farley, 512 U.S. 339, 353-355 (1994);Teague v. Lane, 489 U.S. 288, 297-299 (1989).
For the reasons set forth above, the undersigned concludes that a plain procedural bar is present and jurists of reason would not find it debatable that in the State courts Dillingham procedurally defaulted the claims he now asserts in Grounds 3 and 4. Slack v. McDaniel, 529 U.S. 473, 484-485 (2000). Further, the undersigned concludes that jurists of reason would not find it debatable that federal review is barred because Dillingham has not demonstrated "cause" and "prejudice" to excuse his procedural default. For these reasons, the undersigned does not recommend issuance of a Certificate of Appealability as to the claims in Grounds 3 and 4.
D
In Ground 5 Dillingham claims he "was denied his 6th Amendment right to a fair trial when the Court failed to first determine whether he was competent to stand trial and/or represent himself at trial pro se, abdicating his 14th Amendment right to due process and equal protection of the law" (DN 2, 3). Respondent argues that federal review of this claim is barred because Dillingham failed to present it to the Kentucky appellate courts and he has failed to demonstrate "cause" and "prejudice" to excuse his procedural default (DN 18 at 14). In his reply, Dillingham asserts that the claim was presented to the Kentucky courts (DN 19 at 5-6).
Here, the Kentucky Court of Appeals found that Dillingham failed to comply with a State procedural rule that required him to raise the competency issue at trial and on direct appeal (DN 17, Appendix at 111-113). The Kentucky Court of Appeals then held that Dillingham's failure to comply with this procedural rule provided adequate and independent grounds for the State's denial of relief (DN 17, Appendix at 111-113). In sum, since Dillingham did not raise this claim on direct appeal he is now procedurally barred from doing so. Bronston v. Commonwealth, 481 S.W.2d 666, 667 (Ky. 1972). Since Dillingham's procedural default provides adequate and independent grounds for the State's denial of relief and he has failed to show "cause" and "prejudice" to excuse his procedural default, federal review of this claim is barred. Reed v. Farley, 512 U.S. 339, 353-355 (1994); Teague v. Lane, 489 U.S. 288, 297-299 (1989).
For the reasons set forth above, the undersigned concludes that a plain procedural bar is present and jurists of reason would not find it debatable that in the State courts Dillingham procedurally defaulted the claim he now asserts in Ground 5. Slack v. McDaniel, 529 U.S. 473, 484-485 (2000). Further, the undersigned concludes that jurists of reason would not find it debatable that federal review is barred because Dillingham has not shown "cause" and "prejudice" to excuse his procedural default. For these reasons, the undersigned does not recommend issuance of a Certificate of Appealability as to Ground 5.
E
Finally, in Ground 6 Dillingham alleges he "was denied his 6th Amendment right to a fair trial when the Commonwealth knowingly elicited perjury from a witness to obtain an indictment from the grand jury, abdicating his 14th Amendment right to due process and equal protection of the law" (DN 2, 3). Respondent argues federal review of this claim is barred because Dillingham did not raise the claim on direct appeal and he has failed to show "cause" and "prejudice" or "actual innocence" to excuse his procedural default (DN 18 at 16-17). In his reply, Dillingham challenges the State court ruling that he procedurally defaulted the claim by failing to raise it on direct appeal (DN 19 at 6-9). Alternatively, Dillingham asserts a claim of ineffective assistance by appellate counsel in an effort to excuse the procedural default (DN 19 at 6-9).
The State court record shows that Dillingham presented this claim in a petition for writ of habeas corpus filed with the Lyon Circuit Court (DN 17, Appendix at 115-121). In essence, the Lyon Circuit Court granted the respondent's motion to dismiss because Dillingham failed to comply with the State procedural rule that required him to raise the claim on direct appeal (DN 17, Appendix at 122-124). Subsequently the Kentucky Court of Appeals affirmed the order of the Lyon Circuit Court because the matters alleged in the habeas petition "are not the proper subject of habeas corpus relief" (DN 17, Appendix at 125). The Supreme Court of Kentucky then denied Dillingham's motion for discretionary review (DN 17, Appendix at 126). In sum, the Kentucky courts concluded that Dillingham procedurally defaulted his claim in Ground 6 because he failed to present it on direct appeal. Since the State procedural law ruling by the Kentucky Court of Appeals is binding on the federal courts, Wainwright v. Goode, 464 U.S. 78, 84 (1983) (per curiam), this Court should decline Dillingham's invitation to reexamine this State procedural law question. Estelle v. McGuire, 502 U.S. 62, 68 (1991).
In an effort to excuse his procedural default in the State courts, Dillingham argues the failure of appellate counsel to present his claim on direct appeal amounts to ineffective assistance of counsel (DN 19 at 6-9). The undersigned will address first the prejudice prong under Strickland. Under this prong, Dillingham must show there is a "reasonable probability" that, but for appellate counsel's failure to raise the perjury claim on direct appeal, the result of Dillingham's appeal would have been different. Strickland, 466 U.S. at 694. As previously mentioned, Dillingham alleges the prosecutor used perjured testimony — marked bills were found in Dillingham's possession at time of arrest — from a detective in order to obtain an indictment from the Grand Jury (DN 2, 3). Since Dillingham's claim can be characterized as a procedural violation affecting only the probable cause charging decision by the Grand Jury, Dillingham procedurally defaulted the claim at the trial court level by failing to challenge the indictment before the petit jury rendered a guilty verdict. United States v. Mechanik, 475 U.S. 66, 70 (1986); United States v. Wiseman, 172 F.3d 1196, 1205 (10th Cir. 1999) (citations omitted). Furthermore, the petit jury's subsequent guilty verdict means not only that there was probable cause to believe that Dillingham was guilty as charged, but also that he is in fact guilty as charged beyond a reasonable doubt.Mechanik, 475 U.S. at 70. In sum, when measured by the petit jury's verdict, the alleged use of perjured testimony during the Grand Jury proceeding was harmless beyond a reasonable doubt.Id. For these reasons, Dillingham cannot show there is a "reasonable probability" that, but for appellate counsel's failure to raise the claim, the result of his appeal would have been different.
Nor has Dillingham satisfied the performance prong underStrickland. In essence, Dillingham is second-guessing appellate counsel's assistance after an unfavorable result. Since the alleged error in the Grand Jury proceeding was rendered harmless beyond a reasonable doubt by the petit jury verdict of guilty, it would have been appropriate for appellate counsel to discount this claim and focus on claims more likely to prevail on appeal.Smith, 477 U.S. at 536 (citation omitted). Since Dillingham failed to satisfy both prongs under Strickland, he has not made a showing of "cause" to excuse his procedural default. Since Dillingham's procedural default provides adequate and independent grounds for the State's denial of relief and Dillingham has failed to show "cause" to excuse his procedural default, federal review of this claim is barred. Reed v. Farley, 512 U.S. 339, 353-355 (1994); Teague v. Lane, 489 U.S. 288, 297-299 (1989).
For the reasons set forth above, the undersigned concludes that a plain procedural bar is present and jurists of reason would not find it debatable that in the State courts Dillingham procedurally defaulted the claim he now asserts in Ground 6.Slack v. McDaniel, 529 U.S. 473, 484-485 (2000). Further, the undersigned concludes that jurists of reason would not find it debatable that federal review is barred because Dillingham has not demonstrated "cause" and "prejudice" to excuse his procedural default. For these reasons, the undersigned does not recommend issuance of a Certificate of Appealability as to the claim asserted in Ground 6.
RECOMMENDATION
For the foregoing reasons, it is recommended that respondent's motion for summary judgment be GRANTED, that Dillingham's petition for writ of habeas corpus be DENIED, that Dillingham's cross-motion for summary judgment be DENIED, and that a Certificate of Appealability be DENIED as to each claim asserted in Dillingham's petition.