Opinion
2:22-CV-131-REW-MAS
08-28-2023
CARLOS HARRIS, Petitioner, v. JAMES DAVID GREEN, Respondent.
REPORT & RECOMMENDATION
MATTHEW A. STINNETT UNITED STATES MAGISTRATE JUDGE EASTERN DISTRICT OF KENTUCKY
Petitioner, Carlos Harris, filed a pro se Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. [DE 1]. Respondent, James David Green, Warden (herein referred to for clarity as “the Commonwealth”) responded in opposition [DE 26] and Harris replied [DE 30]. Upon review of the record, the Court believes the petition is time-barred, otherwise procedurally barred, and will recommend the District Court dismiss the petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
Harris was convicted by a jury of the intentional strangulation death of Jualana Kirtley (“Kirtley”) in 1999. The Kentucky Supreme Court summarized the facts and judgment:
Appellant, Carlos Harris, was charged with murder by intentionally causing the death of the victim, Jualana Kirtley. [Harris] received a jury trial in the Kenton Circuit Court and was convicted of intentional murder. The jury recommended a sentence of life imprisonment, which was imposed by the trial court. [Harris] therefore appeals as a matter of right. Ky. Const.§ 110(2)(b).
[Harris], along with his friend Leslie Ayers, attended a small party on the evening of May 18, 1999. Later, three other individuals, including Kirtley, joined the party. The persons present at the party were drinking alcoholic beverages, conversing, and listening to music. As the evening progressed, the conversation drifted into a discussion of sex. During this time, [Harris] and Kirtley became better acquainted and had apparently agreed to exchange sexual favors.
At some point during the evening, [Harris] agreed to perform oral sex on Kirtley. However, as he began performing the act, he decided to stop. An argument ensued, and [Harris] and Kirtley became physically entangled. [Harris] held Kirtley down for several minutes until she struggled no more. Kirtley was no longer moving, and [Harris] went into the next room to retrieve his friend, Ayers. Ayers realized Kirtley was deceased, and after returning to his residence, contacted the authorities. Ayers informed the police about the incident that had just occurred. Ayers stated that [Harris] told him he had suffocated Kirtley and then twisted her neck in order to make sure that she was deceased. An autopsy indicated that the cause of death was manual strangulation, and was consistent with Ayers' description of how [Harris] said Kirtley had died.
[Harris]'s case was presented to a jury for trial. At the conclusion of the guilt phase of the trial, the jury found [Harris] guilty of intentional murder. The jury recommended a sentence of life imprisonment be imposed against [Harris]. The trial court subsequently sentenced [Harris] to a term of life imprisonment in the Kentucky State Reformatory based on the jury's sentencing recommendation.Commonwealth v. Harris, Kentucky Supreme Court Opinion, DE 26 at Page ID# 336 42. Harris appealed his conviction to the Kentucky Supreme Court as a matter of right; that court affirmed his conviction. The United States Supreme Court denied certiorari on October 7, 2002. Harris v. Kentucky, 537 U.S. 923 (2002).
In July 2004, Harris filed a pro se motion to vacate, set aside, or correct his sentence pursuant Kentucky RCr 11.42. The state court appointed counsel to assist Harris with his collateral attack, and that counsel filed a supplemental brief to the pro se motion. The trial court conducted an evidentiary hearing on the issues of ineffective assistance of counsel raised in the motion, but ultimately denied the motion. Harris v. Commonwealth, 2008 WL 1917592 (Ky. App. May 2, 2008); See also Trial Court Order Denying, DE 26-2 at Page ID# 364. The Kentucky Court of Appeals affirmed. Harris v. Commonwealth, 2008 WL 1917592 (Ky. App. May 2, 2008).
Harris then filed a motion to vacate pursuant to Kentucky CR 60.02 on January 16, 2015, nearly seven years after his RCr 11.42 motion was denied and fifteen years after his judgment was entered. [DE 26-2 at Page ID# 412-25]; Harris v. Commonwealth, 2017 WL 2210743 (Ky. App. May 19, 2017); See also Trial Court Order Denying 60.02 Motion to Vacate, DE 26-2 at Page ID# at 427-30. In it, Harris claimed actual innocence, alleging that the medical examiner manipulated the autopsy results to support the Commonwealth's theory of the case, and without that autopsy report, the evidence was insufficient for a conviction. [DE 26-2 at Page ID# 412-25]. Harris v. Commonwealth, 2017 WL 2210743 at *1-2 (Ky. App. May 19, 2017). The trial court denied the motion as untimely and as a successive motion, and the Court of Appeals affirmed, agreeing with the trial court that Harris did not raise “any issues that were not or could not have been raised in the direct appeal or prior RCr 11.42 proceedings,” and that the CR 60.02 motion was untimely because it was filed “over fifteen years after the judgment was entered.” Harris v. Commonwealth, 2017 WL 2210743 at *2 (Ky. App. May 19, 2017). Harris's untimely motion for discretionary review was denied on December 6, 2018. [DE 26-2 at Page ID# 498].
Harris then filed two more CR 60.02 motions, one in September 2019 and one in September 2021. [DE 26-2 at Page ID# 499-501 and 536-40]. These motions likewise alleged actual innocence and focused on the medical examiner's autopsy report. The second CR 60.02 motion also raised issues regarding counsel and the jury instructions, while the third CR 60.02 motion alleged a Brady violation. The trial court denied both motions as untimely and successive. [DE 26-2 at Page ID# 534-35 and 674-75).
Failing to obtain relief in state court, Harris then filed the instant § 2254 motion seeking to vacate his judgment and conviction, asserting eight grounds for relief. [DE 1]. Once again, Harris's claims are primarily centered on challenging the medical examiner's autopsy report. Specifically, Harris claims (1) he has obtained new scientific evidence in the form of expert testimony that supports his actual innocence claim; (2) the prosecution committed a Brady violation related to the medical examiner's report; (3) the prosecution and a witness committed perjury related to the decedent's time of death; (4) his trial counsel was ineffective for failing to hire a forensic pathologist; (5) his trial counsel was ineffective for failing to investigate and failing to object to or request certain jury instructions; (6) the trial court's jury instructions were erroneous and deprived him of his right to a fair trial; (7) trial counsel was ineffective for failing to request the Court individually poll the jury after the verdict; and (8) appellate counsel was ineffective for failing to certain issues on appeal and erroneously raising others. [DE 1]. That motion is now ripe for decision, and the Court agrees with the Commonwealth that it is severely untimely.
I. ANAYLSIS
A. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a one-year limitation period on § 2254 petitions. 28 U.S.C. § 2244(d). Specifically, the statute provides:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. Id. Here, Harris states that the date of his underlying judgment and sentencing was January 18, 2000. [DE 1, at Page ID # 1]. His conviction was considered “final” on October 7, 2002, when the United States Supreme Court denied certiorari on his direct appeal. Harris v. Kentucky, 537 U.S. 923 (2002); 28 U.S.C. § 2244(d)(1)(A). Thus, absent one of the circumstances in 28 U.S.C. § 2244(d)(1)(B)-(D), which Harris does not argue are present here, Harris had until October 2003, by which to file timely his § 2254 petition.
Harris filed a RCr 11.42 post-conviction relief motion on July 9, 2004. [DE 1, at Page ID # 3]. Although § 2244(d)(2) provides that filing a RCr 11.42 motion would toll the statute of limitations in (d)(1), “it can only serve to pause a clock that has not yet fully run. Once the limitations period is expired, collateral petitions can no longer serve to avoid a statute of limitations.” Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) (quoting Rashid v. Khulmann, 991 F.Supp. 254, 259 (S.D.N.Y.1998)). Thus, once October 2003 had passed, Harris's timely filing of a RCr 11.42 motion in July 2004, did not toll or revive the expired statute of limitations period.
As set forth above, Harris continued to file various motions for relief from the judgment in state court after 2004. None of these motions affect his expired statute of limitations pursuant to § 2244(d). Here, there was a 19-year gap between the date his conviction became final under § 2244(d)(1) and Harris filing his § 2254 petition. The statute of limitations clearly bars Harris's claims. Harris was exceedingly untimely in filing his petition under the AEDPA and his petition should be dismissed.
In the interest of thoroughness, however, the Court will further analyze whether Harris is entitled to equitable tolling due to his claim of actual innocence, and whether there is any reason to excuse the delay or procedural default in his claim of a Brady violation.
B. Equitable Tolling due to claim of actual innocence
Although the commonwealth addresses the two-prong equitable tolling test set forth in Holland v. Florida, 560 U.S. 631, 645 (2010), Harris does not request tolling on any basis other than actual innocence. In his Reply, Harris suggests he diligently pursued his rights but continuously references his actual innocence claim as the basis for circumventing the statute of limitations. [DE 30].
“The petitioner bears the burden of demonstrating that he is entitled to equitable tolling.” McClendon v. Sherman, 329 F.3d 490, 494-495 (6th Cir. 2003) (citations omitted). Harris centers his tolling argument on his claim of actual innocence. Within that claim, there are two types of actual innocence tolling arguments: one in which the “claim of innocence is [ ] ‘not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.'” Schlup v. Delo, 513 U.S. 298, 315 (1995) (quoting Herrera v. Collins, 506 U.S. 390, 403 (1993). The other is a “freestanding” argument wherein a petitioner asserts that he is “entitled to habeas relief because newly discovered evidence shows that [the petitioner's] conviction is factually incorrect.” See Herrera, 506 U.S. at 404-405. Though it is muddled, Harris seems to make both arguments in his petition. Nonetheless, “[t]o the extent that [Harris] seeks to raise a free-standing claim of actual innocence, the Supreme Court has not recognized such a claim in a non-capital case.” Singleton v. Watson, 2022 WL 2962034, at *3 (6th Cir. June 30, 2022) (citing Herrera); D'Ambrosio v. Bagley, 527 F.3d 489, 498 (6th Cir. 2008) (“this court has refused to recognize a theoretical “free-standing” actual innocence claim”).
Reading Harris's Reply as generously as possible, he argues that actual innocence is the gateway through which his Constitutional arguments (such as his ineffective assistance of counsel claims) pass to clear the procedural bar of untimeliness. [See Reply, DE 30 at Page ID# 684]. “To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence that was not presented at trial.” Souter, 395 F.3d at 590 (citations omitted).
Harris submits a new expert opinion from Dr. Thomas Young as “new reliable evidence” to support his actual innocence claim that strangulation was not the decedent's cause of death. [DE 9-1]. However, as the Commonwealth points out, “Dr. Young's opinion is not really ‘new reliable evidence,' but it is instead a different opinion, from another expert, examining facts that existed at the time of the trial, and simply coming up with a different (yet inconclusive) determination.” [DE 26 at Page ID# 177]. Dr. Young's opinion letter states he reached his conclusion regarding the possible cause of death after reviewing records Harris sent him “including a police investigation report, the autopsy report for decedent Jualana Kirtley, laboratory reports, and information in his correspondence to me.” [DE 9-1 at Page ID#76]. Other than the letter Harris sent Dr. Young, which appears from context to have been written after the trial, all of the information Dr. Young reviewed was identical to the information available to Harris prior to trial. Harris's own statements to Dr. Young in the letter about the facts of the night of the murder, would be presumably, the same now as when he was tried (Harris makes no claim otherwise). See Harris v. Vasquez, 949 F.2d 1497, 1523 (9th Cir. 1990) (holding new medical opinions at issue that did not rely on any new facts, but instead relied entirely on facts available at the time of trial, were not “newly discovered evidence.”).
“To establish actual innocence, [a] petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Bousley v. United States, 523 U.S. 614 at 623 (citing Schlup v. Delo, 513 U.S. 298, 327-328 (1995) (quotation marks omitted)). As the Commonwealth notes, the opinion letter from Dr. Young equivocates as to the cause of death, stating that the decedent “could have” died from cardiac arrest brought about by the struggle rather than strangulation. [DE 9-1 at Page ID# 76]. This statement does not meet the high standard of evidence that if presented at trial, it would have been more likely than not that no reasonable juror would have convicted Harris. The contradictory evidence, such as Harris's statements to police immediately following the murder, and the Commonwealth's autopsy report, would still be persuasive pieces of evidence favoring a conviction. It certainly does not make it more likely than not that no reasonable juror would have convicted Harris.
Harris has failed to meet the high burden of showing that he is entitled to equitable tolling of the statute of limitations due to his argument of actual innocence. The evidence supporting the claim is neither newly discovered nor does it persuade the Court that it is more likely than not that if presented at trial it is more likely than not that no reasonable juror would have convicted Harris. Thus, Harris's petition is time-barred and should be dismissed.
C. Brady Claim
Because Harris did not discover the alleged Brady violation until 2021 and because a Brady violation can potentially circumvent other applicable procedural bars the Court will separately analyze Harris's Brady claim. Harris's Brady claim is based on the alleged suppression of a form titled “Coroner's Authorization for PostMortem Examination.” [DE 9-1 at Page ID# 79]. Harris claims this form was not disclosed by the Commonwealth during discovery which the Commonwealth acknowledges and that it was material to his defense because it provides an approximate time of death. The jury specifically asked about the time of death in a note during deliberations. The Commonwealth responds that it did not disclose the form because it did not possess the form. [DE 26 at Page ID# 190 and DE 26-2 at Page ID# 211].
Brady v. Maryland, 373 U.S. 83 (1963).
Harris obtained the form in 2021 through an open records request. He attempted to challenge his conviction once again, based on discovery of the form, through a CR 60.02 motion; essentially, another direct attack on his conviction. Though Harris repeatedly raised Brady in this 60.02 motion, the trial court did not address Brady, and simply denied the motion as untimely and successive. [DE 26-2 at Page ID# 672-73]. Harris failed to perfect his appeal of that denial, and the Kentucky Court of Appeals denied his request for a belated appeal. [DE 26-2 Page ID# 674-75].
Because Harris did not exhaust his state remedies i.e., he did not file a timely appeal of the denial of his September 2021 CR 60.02 motion, nor did he file an RCr 11.42 motion on his Brady claim, he procedurally defaulted this claim. In reversing the Sixth Circuit's finding of procedural default of Brady claim in a § 2254 petition, the Supreme Court noted that a “claim is procedurally barred when it has not been fairly presented to the state courts for their initial consideration[.]” Cone v. Bell, 556 U.S. 449, 467 (2009). The Cone court noted that unlike Harris here, “Cone properly preserved and exhausted his Brady claim in the state court; therefore, it is not defaulted.” Id. at 469.
RCr 11.42 prohibits a successive motion for relief, unless the facts upon which the claim is based were unknown to the moved at the time and they could not have been ascertained by the exercise of due diligence. It is very possible that the Kentucky courts would have also procedurally denied any RCr 11.42 motion Harris filed on successive and untimely.
Harris did not timely appeal his Brady claim in state court, and therefore, procedurally defaulted it under Kentucky state procedural law. The adequate and independent state ground doctrine states that “[a] federal habeas court will not review a claim rejected by a state court if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Walker v. Martin, 562 U.S. 307, 315 (2011) (citation and internal quotation omitted). “The state-law ground may be a substantive rule dispositive of the case, or a procedural barrier to adjudication of the claim on the merits.” Id. (citing Wainwright v. Sykes, 433 U.S. 72, 81-82 (1977)). “When the independent and adequate state ground supporting a habeas petitioner's custody is a state procedural default, an additional concern comes into play. This Court has long held that a state prisoner's federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims.” Coleman v. Thompson, 501 U.S. 722, 731 (1991). The Kentucky Court of Appeals refused to hear Harris's untimely appeal from the denial of his third CR 60.02 motion, even after he moved for leave to file a belated appeal. [DE 26-2 at Page ID# 674-75].
In order to excuse this default and address his Brady claim, Harris
must demonstrate cause for the default and must show that “actual prejudice resulted from the alleged constitutional error.” Ivory, 509 F.3d at 293 (quoting Monzo, 281 F.3d at 576).
The “cause” factor requires the petitioner to show “some objective factor external to the defense [that] impeded [the defense's] efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Examples include “a showing that the factual or legal basis for a claim was not reasonably available” previously, or “some interference by officials.” Id. (citation omitted). Regarding the “prejudice” factor, “[t]he habeas petitioner must show not merely that the errors at 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.” Id. at 494, 106 S.Ct. 2639 (emphasis in original) (alterations, citation, and internal quotation marks omitted).Brooks v. Tennessee, 626 F.3d 878, 890 (6th Cir. 2010). A state's suppression of Brady evidence constitutes cause under the procedural-default doctrine. Id. Thus, the Court must look at the merits of Harris's Brady claim.
Harris's Brady claim fails on its substance. A Brady violation consists of three parts: 1) the evidence at issue must be favorable to the accused, either because it is exculpatory or impeaching; 2) the state must have suppressed the evidence; whether willfully or inadvertently; and 3) prejudice must have resulted. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Brady requires the prosecution to turn over evidence that is material to the guilt or punishment of the defendant, but it does not alter the general rule that the defendant is not constitutionally entitled to discovery in criminal cases. Id. at 280; Spirko v. Mitchell, 368 F.3d 603, 610 (6th Cir. 2004). Moreover, the Sixth Circuit has repeatedly ruled that there can be no Brady violation when the evidence at issue in the Brady claim was available from another source. United States v. Graham, 484 F.3d 413, 417 (6th Cir. 2007); United States v. Mullins, 22 F.3d 1365, 1371 (6th Cir. 1994); and United States v. Clark, 928 F.2d 733 (6th Cir.) (cert. denied). The Sixth Circuit has gone so far as to rule that even where the United States possessed the information, “the government's failure to disclose potentially exculpatory information does not violate Brady where a defendant knew or should have known the essential facts permitting him to take advantage of any exculpatory information, or where the evidence is available to defendant from another source.” United States v. Mullins, 22 F.3d at 1371 (internal citations and quotation marks omitted). As the Commonwealth argues, Harris could have, at any time, obtained the Coroner's Authorization for Post-Mortem Examination via an open records request, just as he did in 2021.
Additionally, the Court finds that the form at issue does not meet the high standard for materiality.
The standard for Brady materiality was set forth by the Supreme Court in Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). As the Court there held, suppressed evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” Id. at 433-34, 115 S.Ct. 1555 (citation omitted).Brooks v. Tennessee, 626 F.3d 878, 892 (6th Cir. 2010). Here, the Coroner's Authorization for Post-Mortem Examination, even if it was in the Commonwealth's possession and suppressed from disclosure (which the Commonwealth has denied and presented at least some evidence in support of its claim) does not show a reasonable probability that the result of Harris's trial could have been different, even when the jury's note questioning the time of death is considered. The time of death on the form, listed pre-autopsy by the coroner, is “apox” (presumably, “approximately”) 4:30 a.m. This would have been potentially exculpatory because it would have shown that the victim died hours after Harris left the scene.[DE 1 at Page ID# 7-8]. The form also states that the type of death suspected was “homicide/rape,” that the incident “involved” two males, and that the first male stated, “I think she is dead” while the second male reported the death to the police department. [DE 9-1 at Page ID# 79]. These additional facts on the Coroner's Authorization for Post-Mortem Examination are not exculpatory for Harris. In fact, they support the Commonwealth's theory of the case as testified to through its primary witness and Harris's friend, Leslie Ayers (“Ayers”). Had the defense been in possession of the Coroner's Authorization for Post-Mortem Examination, there is no reasonable probability that it would have impacted the outcome of the trial, as it appears to offer both inculpatory and exculpatory evidence pertaining to Harris's guilt. Furthermore, all of the information on the form is vague or an approximation, and the form itself is not a scientific analysis but merely a legal authorization for a post-mortem examination pursuant to KRS Chapter 72, as stated on the top of the form.
Though Harris has not presented any evidence to suggest the Commonwealth had the Coroner's Authorization for Post-Mortem Examination in its possession at the time of trial, the Court does not need to rule on this factual dispute to find against Harris on the merits of his Brady claim. Said differently, this recommendation assumes that fact in Harris's favor without making a finding, despite the fact that if the Court were to have a hearing on the issue it appears the Commonwealth has a strong record to the opposite.
Harris also makes this argument most clearly in his “Statement of the Case,” at ¶ 9 but that document is technically not part of his § 2254 petition. The Commonwealth did not object to that filing and appears to have responded to the substance of the arguments in it as part-and-parcel of Harris's § 2254 petition. The Court does not consider any newly raised arguments in DE 9, but allows it as supplement to the petition for the limited purpose of addressing the Brady claim due to the attachment of the Coroner's Authorization for Post-Mortem Examination at DE 9-1.
Harris also refers to this evidence as impeachment evidence. The Brady distinction between exculpatory and impeachment evidence was dissolved in United States v. Bagley, 473 U.S. 667 (1985).
“The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A ‘reasonable probability”' of a different result is accordingly shown when the government's evidentiary suppression ‘undermines confidence in the outcome of the trial.'” Kyles v. Whitley, 115 S.Ct. 1555, 1566, 514 U.S. 419, 434 (1995). Here, the Court finds that even if suppression of the Coroner's Authorization for Post-Mortem Examination occurred, it did not undermine the confidence in the outcome of the trial because it included information that was potentially both inculpatory and exculpatory.
For these reasons, the Court finds that the merits of the Brady claim fail, and therefore Harris's Brady claim not sufficient to overcome the procedural default of failure to exhaust. Thus the undersigned will recommend the District Court not entertain this claim further. Brooks v. Tennessee, 626 F.3d 878, 890 (6th Cir. 2010).
D. AN EVIDENTIARY HEARING IS UNNECESSARY
The Court finds that an evidentiary hearing is unnecessary because this matter can be fully disposed of due to the procedural bars. Hearings on § 2254 review are extremely limited because
(e)(1) . . . [A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that
(A) the claim relies on
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e). “Although state prisoners may sometimes submit new evidence in federal court, AEDPA's statutory scheme is designed to strongly discourage them from doing so. Provisions like §§ 2254(d)(1) and (e)(2) ensure that ‘[f]ederal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings.'” Cullen v. Pinholster, 563 U.S. 170, 186 (2011).
There is no factual issue determined by the Kentucky state courts which requires an evidentiary hearing here, nor is there new evidence that requires a hearing. All of Harris's claims, except potentially his later-discovered Brady allegation, are barred by the statute of limitations. As for the Brady allegation, Harris procedurally defaulted it when he “made [an] insufficient effort to pursue [it] in state proceedings” as discussed above. Id. And although the Court necessarily touched on the merits of the Brady claim, it could do so by analyzing the record before it. Harris has not explained what a further evidence or testimony would be raised at an evidentiary hearing regarding the alleged Brady violation. Harris has not satisfied the requirements for a hearing set forth in 28 U.S.C. § 2254(e).
E. Certificate of Appealability
A certificate of appealability may issue where a habeas petitioner has made a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “When a district court denies a habeas petition on procedural grounds without reaching the petitioner's underlying constitutional claim, a COA should issue when the petitioner shows, at least, 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). As discussed herein, Harris's petition was untimely by 19 years. Furthermore, his Brady claim violated a state procedural rule on how to perfect an appeal, rendering it unexhausted and therefore unreviewable by this court. Reasonable jurists would not disagree on either of these points.
To the extent that the Court ruled on the substance of Harris's Brady claim, Harris also cannot make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This requires a petitioner to demonstrate that “jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The reviewing court must indicate which specific issues satisfy the “substantial showing” requirement. 28 U.S.C. § 2253(c)(3); see also Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001) (requiring an “individualized determination of each claim” in considering whether to grant a certificate of appealability). Reasonable jurists would not disagree on this court's application of federal law as pertaining to his Brady claim.
II. CONCLUSION
For the reasons stated above, IT IS RECOMMENDED that Harris's § 2254 petition (DE 1) be DENIED, that this matter be DISMISSED WITH PREJUDICE, and that no certificate of appealability should issue.
The parties are directed to 28 U.S.C. § 636(b)(1) for appeal rights concerning this Report and Recommendation. Within fourteen days after being served with a copy of this decision, the parties may serve and file objections to the findings and recommendations herein for de novo determination by the District Court. 28 U.S.C. § 636(b)(1). Failure to make timely objections will normally 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, 150-51 (1985).