MEMORANDUM OPINION AND ORDER
JAMES D. MOYER, Magistrate Judge.
By counsel, the petitioner, Vincent C. Stopher, filed a petition and amended petition for a writ of habeas corpus under 28 U.S.C. § 2254 (DNs 9 & 40).
I.
The facts underlying Stopher's conviction and sentence are recounted in the Kentucky Supreme Court's decision on direct appeal. See Stopher v. Commonwealth, 57 S.W.3d 787 (2001). For the purpose of this opinion, the court presumes the state court's findings of fact to be correct. See 28 U.S.C. § 2254(e)(1). The Kentucky Supreme Court recited the facts as follows:
Stopher, 57 S.W.3d at 793.
Stopher timely appealed his conviction and sentence. The Kentucky Supreme Court affirmed. Stopher v. Commonwealth, 57 S.W.3d 787 (2001). On May 13, 2002, the United States Supreme Court denied Stopher's timely filed petition for writ of certiorari. Stopher v. Kentucky, 535 U.S. 1059 (2002). On July 3, 2002, Stopher filed a motion pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42 and pursuant to Kentucky Rule of Civil Procedure (CR) 60.02 in the trial court. On April 5, 2005, the trial court denied the motion without an evidentiary hearing. The Kentucky Supreme Court denied the appeal on November 22, 2006, Stopher v. Commonwealth, No. 2005-SC-0371-MR, 2006 WL 3386641 (Ky. Nov. 22, 2006), and denied a petition for rehearing on February 22, 2007. Stopher filed a petition for writ of certiorari, which the United States Supreme Court denied on October 1, 2007. Stopher v. Kentucky, 552 U.S. 850 (2007).
Stopher then filed his petition for a writ of habeas corpus in this court on January 2, 2008 (DN 9), and his amended petition on January 30, 2009, (DN 40), raising twenty-five grounds for relief. The respondent argues that the following nine grounds are procedurally defaulted, in whole or in part:
1)
2)
3)
4)
5)
6)
7)
8)
(DN 40, amended petition).
II.
Since Stopher filed his petition for writ of habeas corpus on January 2, 2008, his case is governed by Chapter 153 of the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996. See Dennis v. Mitchell, 354 F.3d 511, 517 (6th Cir. 2003); Lindh v. Murphy, 521 U.S. 320, 327-29 (1997). Under the AEDPA,
28 U.S.C. § 2254.
A. Exhaustion
Ordinarily, state prisoners must first exhaust their available state court remedies before seeking habeas relief by fairly presenting all their claims to the state courts. 28 U.S.C. § 2254(b), (c); Rhines v. Weber, 544 U.S. 269, 274 (2005) ("AEDPA preserved [the] total exhaustion requirement."); Wilson v.Mitchell, 498 F.3d 491, 498 (6th Cir. 2007). Exhaustion is required before a state prisoner may bring a habeas corpus petition under 28 U.S.C. § 2254. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). The petitioner bears the burden of proving that he has exhausted those remedies. Id.
Normally, the exhaustion requirement is satisfied after the petitioner fairly presents all his claims to the highest court in the state in which the petitioner was convicted, thus giving the state a full and fair opportunity to rule on the petitioner's claims before he seeks relief in federal court. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Wilson, 498 F.3d at 498-99; Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004). Both the factual and legal basis for the claim must have been presented to the state courts in order to be considered "fairly presented." Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir. 2006). The exhaustion principle requires a state prisoner to invoke one full round of the state's established review procedures. O'Sullivan, 526 U.S. at 842.
The Sixth Circuit has identified four actions that are significant to the determination of whether the petitioner has properly asserted both the factual and legal bases for his claim, i.e., "fairly presented" that claim to the state court:
Whiting v. Burt, 395 F.3d 602, 613 (6th Cir. 2005) (quoting McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000)).
If a petitioner did not "fairly present" his claim to the state court, ordinarily the entire petition must be dismissed for lack of exhaustion so long as a remedy is still available for the petitioner to pursue in the state courts. Rose v. Lundy, 455 U.S. 509, 518-20 (1982); see also Blackmon Booker, 394 F.3d 399, 400 (6th Cir. 2004) ("Federal courts lack jurisdiction to consider a habeas petition claim that was not fairly presented to the state courts."). However, if a prisoner fails to present his claims to a state court and he is now barred from pursuing relief in the state courts, his petition should not be dismissed for lack of exhaustion because there are simply no remedies available for him to exhaust. Hannah v. Conley, 49 F.3d 1193, 1195-96 (6th Cir. 1995); Rust, 17 F.3d at 160.
This does not mean, however, that a federal court is permitted to hear a claim that has never before been presented in state court. A federal court can entertain such a claim only if the petitioner can show cause to excuse his failure to present the claim in the state courts and actual prejudice to his defense at trial or on appeal. Gray v. Netherland, 518 U.S. 152, 162 (1996); Coleman v. Thompson, 501 U.S. 722, 750 (1991).
B. Procedural Default
Habeas petitioners face an additional hurdle before federal courts may review a question of federal law decided by a state court. As applied in the habeas context, the doctrine of procedural default prevents federal courts from reviewing claims that a state court has declined to address because of a petitioner's noncompliance with a state procedural requirement. In Wainwright v. Sykes, 433 U.S. 72 (1977), the United States Supreme Court held that, for purposes of comity, a federal court may not consider "contentions of federal law which were not resolved on the merits in the state proceeding due to [petitioner's] failure to raise them there as required by state procedure." Id. at 87.
The Sixth Circuit has adopted a four-part test for determining whether a claim has been procedurally defaulted:
Caver v. Straub, 349 F.3d 340, 346 (6th Cir. 2003) (quoting Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)).
With these guiding principles in mind, the court now turns to the respondent's motion for summary judgment.
III.
A. Ground Two
Stopher asserts that Juror 479 based her decision on extra-judicial evidence in violation of the Sixth and Fourteenth Amendments.
The respondent asserts that this argument was not raised in Stopher's RCr 11.42/CR 60.02 petition on July 3, 2002, but in a motion to amend the petition pursuant to CR 15.01 filed on December 20, 2004. The respondent states that the trial court denied the motion to amend and, therefore, did not address the juror-misconduct issue in its opinion denying RCr 11.42/CR 60.02 relief. He claims, therefore, the issue has been procedurally defaulted. The respondent concedes, however, and the record reflects (DN 74, App., Vol. 3, Doc. 9, pp. 54-57),
In addressing that claim, the Kentucky Supreme Court found:
Stopher v. Commonwealth, 2006 WL 3386641 at *6-7.
As conceded by the respondent and is clear from the record and the opinion of the Kentucky Supreme Court, Stopher fairly presented this claim to the highest court. See Rudolph v. Parke, 856 F.2d 738, 739 (6th Cir. 1988) (finding prisoner fairly presented issue to state court where issue was raised in a reply brief before the Kentucky Supreme Court and in a petition for rehearing before that court). It also is equally clear from the opinion above that the Kentucky Supreme Court did not invoke a procedural bar but considered the issue on the merits.
The respondent has not persuaded this court that Stopher has procedurally defaulted Ground Two. As such, the court will provisionally deny summary judgment as to this procedural-default contention.
B. Ground Eight
As Ground Eight, Stopher claims that the Commonwealth suborned Bishop's perjury in violation of federal law (DN 40, pp. 86-92) (quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935)) for the proposition that procuring a prosecution by the deliberate use of false evidence is incompatible with "rudimentary demands of justice"). The respondent argues that Stopher admits in his amended petition that he did not raise this argument on direct appeal and, thus, has implicitly conceded procedural default.
It is undisputed that Stopher presented this issue of prosecutorial misconduct in his post-conviction appeal brief to the Kentucky Supreme Court (DN 74, App., Vol. 3, Doc. 9, pp. 36-38). The Kentucky Supreme Court addressed the claim as follows:
Stopher v. Commonwealth, 2006 WL 3386641 at *5.
Here, the court is not persuaded that Stopher procedurally defaulted this claim. On post-conviction review, the Kentucky Supreme Court concluded that the issue regarding Bishop's alleged perjury had already been raised and rejected on direct appeal. Thus, either Stopher fairly presented his claim on direct appeal
For these reasons, the court does not find the respondent's procedural-default argument as to Ground Eight to be well taken and will provisionally deny the respondent's motion on this claim.
C. Ground Nine
Stopher argues that the prosecution also suppressed impeachment evidence on Bishop in violation of Brady v. Maryland, 373 U.S. 83 (1963). Stopher contends that the prosecution did not tell the defense that Bishop was deal shopping when he allegedly spoke with Stopher.
The respondent states that Stopher did not raise any Brady argument relative to Bishop on direct appeal although he knew at the trial that Bishop had offered to testify in another murder case. Thus, claims the respondent, the issue is procedurally defaulted.
It is undisputed that the state-court record indicates that Stopher presented this Brady issue in his post-conviction appeal brief to the Kentucky Supreme Court (DN 74, App., Vol. 3, Doc. 9, pp. 38-40). Addressing the claim, the Kentucky Supreme Court held as follows:
Stopher v. Commonwealth, 2006 WL 3386641 at *3-4.
"When [as here] a state court refuses to readjudicate a claim on the ground that it has been previously determined, the court's decision does not indicate that the claim has been procedurally defaulted." Cone v. Bell, 129 S. Ct. at 1781. "To the contrary, it provides strong evidence that the claim has already been given full consideration by the state courts and thus is ripe for federal adjudication." Id. (emphasis in original). Thus, because the Kentucky Supreme Court relied on the erroneous premise that it had already considered the instant claim on direct appeal, there is no procedural bar.
For these reasons, the court does not find the respondent's procedural-default argument as to Ground Nine to be well taken and will provisionally deny the respondent's motion for summary judgment on this claim.
D. Ground Twelve
Stopher alleges that the prosecution subverted the truth-seeking process in regards to Porter's SSI records. Stopher maintains that he wanted to use Porter's SSI records as impeachment evidence. He reports that before both the trial court and the defense, the lead prosecutor advised that he would ask Porter to sign a release for his records. Stopher asserts, however, that in a sworn affidavit, Porter said that he would have signed a release for his SSI records if asked by the prosecution but that the lead prosecutor never asked.
The respondent argues that Stopher did not raise, on direct appeal, any issue relative to the SSI release but only complained that the prosecution brought Porter to the hearing but could not remember why he was supposed to be there. Therefore, claims the respondent, the issue was procedurally defaulted. He further argues that although Stopher "repackaged his direct appeal argument" in his RCr 11.42 motion and argued that the Commonwealth subverted the truth seeking process by not asking Porter if he would sign a release, this issue is still procedurally defaulted because issues which were, or could have been, raised on direct appeal may not be relitigated by merely repeating them as an RCr 11.42 basis for relief.
Stopher presented this argument in his post-conviction brief before the Kentucky Supreme Court (DN 74, App., Vol. 3, Doc. 9, pp. 40-43). The Kentucky Supreme Court, on post-conviction review, addressed the issue as follows:
Stopher v. Commonwealth, 2006 WL 3386641 at *6.
Because Stopher fairly presented his argument to the Kentucky Supreme Court, which found no error, the court is not persuaded by the respondent's procedural-default argument relative to Ground Twelve and will provisionally deny any summary judgment on this claim.
E. Ground Thirteen
Stopher claims that the prosecution suborned Powell's perjury. Powell, who was with Stopher on the day in question, testified that he received "nothing" in exchange for his testimony. Stopher claims that further investigation suggests that Powell actually received a benefit of not being prosecuted for a gun charge and of receiving money in exchange for testifying at Stopher's trial. Stopher, therefore, argues prosecutorial misconduct with respect to this inference of perjury, claiming either that the prosecution knew of the benefit or had a duty to learn of it.
The respondent reports that Stopher raised 61 issues of prosecutorial misconduct, including this issue, on direct appeal. He advises that the Kentucky Supreme Court addressed six of those claims thoroughly and that as to the remaining 56 claims, which includes the issue raised in Ground Thirteen, the Court found that they were "unpreserved, insubstantial or harmless." The respondent states that Stopher raised this issue again in his RCr 11.42 petition and that the Kentucky Supreme Court held that the issue had been raised on direct appeal and was not appropriate for RCr 11.42 review.
The respondent then goes on to argue that even if the issue were not raised on direct appeal, it could have been, and was not proper for RCr 11.42 review. Thus, contends the respondent, raising an issue procedurally defaulted on direct appeal in an RCr 11.42 petition does not provide cause to excuse the procedural default.
Stopher asserts that he did not raise this issue on direct appeal and could not have raised the issue on direct appeal because the issue relies entirely on extra-record evidence.
A review of Stopher's direct appeal brief reveals that he did not raise the issue regarding prosecutorial misconduct relative to Powell receiving leniency on another charge (DN 74, App., Vol. 3, Doc. 1, pp. 44-79). Stopher did raise the issue in his RCr 11.42/CR 60.02 petition (DN 74, App., Vol. 1, Pet., pp. 2459-2468) and in the related appeal before the Kentucky Supreme Court (DN 74, App., Vol. 3, Doc. 9, pp. 44-46). In addressing this claim, the Kentucky Supreme Court held as follows:
Stopher v. Commonwealth, 2006 WL 3386641 at *3-4.
"When a state court declines to review the merits of a petitioner's claim on the ground that it has done so already, it creates no bar to federal habeas review." Cone v. Bell, 129 S. Ct. at 1781. Thus, because the Kentucky Supreme Court relied on the premise that it had already considered the instant claim related Powell, there is no procedural bar.
For these reasons, the court does not find the respondent's procedural-default argument as to Ground Thirteen to be well taken and will provisionally deny summary judgment as to this claim.
F. Ground Fourteen
As Ground Fourteen, Stopher argues several instances of prosecutorial misconduct in violation of the Fourteenth Amendment. The respondent argues that one of these claims is procedurally defaulted. Specifically, the respondent argues that the claim is procedurally defaulted because, at trial, Stopher's counsel did not object when McGiveny testified that Stopher never struck anybody and the Commonwealth then asked her if she knew anything about specific dates of Stopher's previous acts of violence.
The record is undisputed that Stopher raised this argument in his direct appeal brief before the Kentucky Supreme Court (DN 74, App., Vol. 3, Doc. 1, pp. 67-70). On direct review, the Kentucky Supreme Court addressed this claim on the merits as follows:
Stopher v. Commonwealth, 57 S.W.3d at 805.
The Kentucky Supreme Court addressed the merits of this claim without reference to any state procedural rule. Thus, the respondent has not demonstrated any procedural default with respect to Ground Fourteen, and the court will provisionally deny summary judgment as to this claim.
G. Ground Seventeen
Stopher alleges that trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984), in failing to counter the Commonwealth's evidence. Specifically, he claims that trial counsel should have invoked Ky. R. Evid. (KRE) 803(7) to have lack of interrogation records admitted as proof that he was too intoxicated at the police station to form a statement and sign his name.
The respondent alleges that before the trial court Stopher did not argue that KRE 803(7) should have been utilized. Relying on Jacobs v. Mohr, 265 F.3d 407 (6th Cir. 2001), the respondent argues that this claim is procedurally defaulted because Stopher may not present a different argument to the federal court than he presented to the trial court. Jacobs is inapposite. In Jacobs, the petitioner presented his ineffective-assistance-of-counsel claim to the trial court but did not continue to make his argument on appeal. Because the petitioner did not raise the argument before the appellate court, the Sixth Circuit determined that he had not "fairly presented" his Sixth Amendment claim.
Here, Stopher raised this claim in his RCr 11.42/CR 60.02 brief before the Kentucky Supreme Court (DN 74, App., Vol. 3, Doc. 9, pp. 51-53). See Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990) ("The exhaustion requirement is satisfied when the highest court in the state in which the petitioner was convicted has been given a full and fair opportunity to rule on the petitioner's claims."); Rudolph v. Parke, 856 at 739 (finding prisoner fairly presented issue to state court where issue was raised in a reply brief before the Kentucky Supreme Court and in a petition for rehearing before that court). Additionally, the Kentucky Supreme Court addressed the issue on the merits without reliance on any state procedural rule:
Stopher v. Commonwealth, 2006 WL 3386641 at *3.
The respondent does not persuade this court that Ground Seventeen has been procedurally defaulted. The court will, therefore, provisionally deny summary judgment as to this claim of procedural default.
H. Ground Nineteen
Stopher argues that trial counsel was ineffective for failing to obtain Porter's SSI records. The respondent claims that this issue is procedurally defaulted. The respondent contends that on direct appeal Stopher argued that the trial court erred in not requiring Porter to sign a release so that Stopher could obtain his SSI records and that he repackaged the argument in his RCr 11.42 motion as an ineffective-assistance-of-counsel claim. The respondent contends that because the substantive issue had been raised on direct appeal, the Kentucky Supreme Court held on collateral review that it had been procedurally defaulted.
"Ineffective assistance of counsel claims in Kentucky are appropriately raised for the first time on collateral review, rather than on direct review." Hodge v. Haeberlin, 579 F.3d 627, 643 (6th Cir. 2009) (citing Humphrey v. Kentucky, 962 S.W.2d 870, 872 (Ky. 1998)). Stopher raised his claim of ineffective assistance of counsel with respect to Porter's SSI records in his RCr 11.42/CR 60.02 appellate brief (DN 74, App., Vol. 3, Doc. 9, pp. 43-44). In addressing this claim the Kentucky Supreme Court held as follows:
Stopher v. Commonwealth, 2006 WL 3386641 at *3.
"Where a state bars collateral review of a claim actually preserved by the petitioner, such bar will not constitute procedural default on federal review." Hodge v. Haeberlin, 579 F.3d at 643. Moreover, the Kentucky Supreme Court went on to actually determine on the merits that Stopher's argument was insufficient to establish ineffective assistance of counsel.
Thus, the respondent has not made a showing that Stopher procedurally defaulted Ground Nineteen, and the court will provisionally deny summary judgment as to this claim.
I. Ground Twenty-Two
Finally, Stopher alleges that his trial counsel was ineffective in the penalty phase due to a failure to present mitigation evidence. The respondent alleges a partial procedural default as to this claim. The respondent states that in Stopher's RCr 11.42/CR 60.02 brief before the Kentucky Supreme Court, Stopher presented a two-page argument concerning three potential mitigation witnesses — Anderson, Hayden, and Michelle Byler. The respondent asserts that Stopher has improperly expanded this argument by adding fourteen witnesses, and argues that any arguments concerning the fourteen additional mitigation witnesses have been procedurally defaulted.
Stopher raised the instant ineffective-assistance-of-counsel claim in his RCr 11.42/CR 60.02 brief before the Kentucky Supreme Court (DN 74, App., Vol. 3, Doc. 9, pp. 53-54). Therein, Stopher argued:
(DN 74, App., Vol. 3, Doc. 9, pp. 53-54) (first emphasis (as to a., b., and c.) in original; second emphasis added). Thus, even though Stopher's brief only mentioned three witnesses by name, the record on appeal included the affidavits from all seventeen witnesses.
Stopher v. Commonwealth, 2006 WL 3386641 at *3.
The Kentucky Supreme Court's failure to mention the affidavits of the additional fourteen witnesses in its opinion is of no consequence in analyzing the procedural-default issue here. Stopher fairly presented his ineffective-assistance-of-counsel claim with respect to all seventeen witnesses to the Kentucky Supreme Court. Thus, the claim was exhausted in its entirety. Further, like the preceding claim, because the Kentucky Supreme Court bars collateral review of a claim repackaged as an ineffective assistance claim, no procedural default has occurred. See Hodge v. Haeberlin, 579 F.3d at 643 ("Where a state bars collateral review of a claim actually preserved by the petitioner, such bar will not constitute procedural default on federal review.").
For these reasons, the court is not persuaded that the respondent's procedural-default argument with respect to Ground Twenty-Two is meritorious and will provisionally deny summary judgment with respect to this claim.
IV.
For the reasons set forth above, and being otherwise sufficiently advised,
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