540 F.3d 393 (6th Cir. 2008), 06-5806, Railey v. Webb

Docket Nº:06-5806.
Citation:540 F.3d 393
Party Name:Ricky Dale RAILEY, Petitioner-Appellant, v. Patti WEBB, Warden, Respondent-Appellee.
Case Date:August 26, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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540 F.3d 393 (6th Cir. 2008)

Ricky Dale RAILEY, Petitioner-Appellant,


Patti WEBB, Warden, Respondent-Appellee.

No. 06-5806.

United States Court of Appeals, Sixth Circuit.

August 26, 2008

Argued: Dec. 6, 2007.

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[Copyrighted Material Omitted]

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David A. Nenni, Dinsmore & Shohl, Cincinnati, Ohio, for Appellant.

Michael L. Harned II, Office of the Kentucky Attorney General, Frankfort, Kentucky, for Appellee.


David A. Nenni, Michael J. Newman, Dinsmore & Shohl, Cincinnati, Ohio, for Appellant.

Michael L. Harned II, Office of the Kentucky Attorney General, Frankfort, Kentucky, for Appellee.

Before: BATCHELDER and MOORE, Circuit Judges; BUNNING, District Judge.[*]

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BATCHELDER, J., delivered the opinion of the court, in which BUNNING, D. J., joined. MOORE, J. (pp. 418-28), delivered a separate dissenting opinion.



Petitioner Ricky Dale Railey appeals the district court's order denying his 28 U.S.C. § 2254 petition for writ of habeas corpus. Railey argues that judicial bias, ineffective assistance of trial counsel, and his invalid plea of guilty warrant reversal of the district court's decision. We disagree and affirm the judgment of the district court.


The following background facts are taken from the Kentucky Court of Appeals' opinion that affirmed the state trial court's denial of Railey's post-conviction motion:

Railey and his girlfriend engaged in an altercation. Railey went out to target shoot afterwards [and] claims that his pistol accidentally discharged while he was returning it to the closet after target practice. The shot struck and injured his girlfriend. During questioning by the police, the girlfriend contended that Railey had assaulted her twice in the past. The girlfriend described an incident where Railey beat her severely with a belt, and a second incident in which he held a knife to her throat and cut her[, which] left scarring on [her] neck. Railey claims that the prior incidents were merely ‘lover's play.’ Railey was charged with assault, first degree, for the shooting, and two counts of assault, second degree, for the prior actions.

Railey v. Kentucky, Nos. 02-CR-00052 & 61, 2004 WL 2201368, *1 (Ky.Ct.App. Oct. 1, 2004).

On February 3, 2003, Railey entered a guilty plea and, on March 20, 2003, the court sentenced him to prison-ten years for the first-degree assault and five years for each of the second-degree assaults, all to run concurrently. Railey did not move to vacate his guilty plea, nor did he file a direct appeal. Instead, Railey, acting pro se, filed a motion with the trial court, pursuant to Kentucky Rule of Criminal Procedure 11.42, seeking to vacate the judgment and the sentence. Railey argued that: (1) his guilty plea was not entered knowingly, voluntarily, and intelligently; (2) his trial attorneys were ineffective because they failed to investigate the charges adequately, failed to consult with him regarding trial strategy, failed to present a defense, and failed to appeal the denial of his motions to reduce his bond; and (3) the trial judge was biased because he is the nephew of the state prosecutor, who personally participated in some of the proceedings. On October 1, 2004, the post-conviction court-the same court that accepted Railey's guilty plea and sentenced him-denied Railey's Rule 11.42 motion. Railey appealed to the Kentucky Court of Appeals, which affirmed, and sought further review in the Kentucky Supreme Court, which denied the request.

Railey filed a § 2254 petition for a writ of habeas corpus in the Western District of Kentucky, alleging three constitutional violations. Railey argued that his defense attorneys were ineffective on two bases: they misinformed and misadvised him when he entered his guilty plea and they failed to investigate the charges and potential defenses in his case adequately. Railey also protested his guilty plea on two bases: that it was not supported by the evidence (because he did not intend to harm his girlfriend and therefore lacked the requisite intent for assault) and that it was not knowing, intelligent, and voluntary (because he did not understand the law in

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relation to the facts; specifically, the requisite intent for each of the crimes). Finally, Railey asserted that the trial judge's failure to recuse himself sua sponte, due to his familial relationship with one of the prosecutors, violated Railey's due process right to a fair trial. The district court denied Railey's petition.

The district court granted Railey a Certificate of Appealability on two issues-the ineffective assistance of counsel and the propriety of his guilty plea. We added the third issue-the due process issue concerning the trial judge's appearance of bias.


Railey filed for habeas relief in June 2005, so the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies. Under AEDPA, a writ may not be granted unless the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law," meaning Supreme Court precedent, or “was based on an unreasonable determination of facts in light of the evidence presented" during the state court proceedings. 28 U.S.C. § 2254(d)(1)-(2).

On appeal, we review the district court's legal conclusions de novo and its factual findings for clear error. White v. Mitchell, 431 F.3d 517, 523-24 (6th Cir.2005). Mixed questions of law and fact are reviewed under the “unreasonable application" prong of the AEDPA. Id. The state court's factual findings are presumed correct and may be disturbed only upon a petitioner's showing by clear and convincing evidence that the factual findings were incorrect. Id.

A. Judicial Bias

Railey claims that he was denied a fair trial because of an impermissible appearance of judicial bias. The crux of this claim is that Judge Allen Ray Bertram, the Marion County (Kentucky) Circuit Court judge who presided over his plea hearing and sentencing, is the nephew of George Barry Bertram, the Marion County Commonwealth Prosecutor. Prosecutor Bertram participated personally in two of the hearings before Judge Bertram-a hearing on a motion to reduce bond and the plea hearing-but Railey does not allege any actual bias during these hearings. Railey argues that due process demanded that Judge Bertram recuse himself to avoid even the appearance of bias.

In the state post-conviction proceeding, the Kentucky Court of Appeals made a factual determination that Railey had “waived" any challenge to the qualification of Judge Bertram:

Railey argues that there was a relationship between the trial court and the prosecution such that the judge should have recused himself. The record shows that the judge is the nephew of the Commonwealth's Attorney. This relationship was previously known to defense counsel, and was made known to all parties before trial. Railey was notified of the relationship, and waived the disqualification of the judge.

Railey, 2004 WL 2201368 at *2. The state court also made the determination, under state law, that Railey was required to show actual bias, that he failed to show actual bias, and that he consequently failed to show that he had been prejudiced or that his constitutional rights were violated. 1

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The appellant must show bias on the part of the court such that the judge could not be impartial in the case. No evidence of bias is presented by Railey, other than the contention that he was denied bail. The trial court is vested with the discretion to determine whether bail is appropriate. Railey has made no showing that the trial court abused its discretion. The claim that Railey's constitutional rights were prejudiced is unsupported by the record before this Court. We affirm the trial court's ruling.

Id. (citations omitted) (citing Brand v. Kentucky, 939 S.W.2d 358, 359 (Ky.App.1997)) (holding that “[t]he burden of proof required to demonstrate that recusal of a trial judge is mandated is an onerous one[:] It must be shown that the trial judge is prejudiced to a degree that she cannot be impartial" ); see also Marlowe v. Kentucky, 709 S.W.2d 424, 428 (Ky.1986) (requiring “evidence of actual bias" ); Johnson v. Ducobu, 258 S.W.2d 509, 511 (Ky.1953) (emphasizing that “we have never gone so far as to require the disqualification of a judge simply because a party does not believe he will be afforded a fair trial" ). In his federal habeas petition, Railey asserts that he need not show actual bias, but that “the trial judge's close familial relationship with the prosecuting attorney is conclusive evidence of judicial bias in violation of the Due Process Clause of the Fourteenth Amendment." In ruling on Railey's appeal we must be mindful of our limited role under § 2254, which confines us to conducting particular inquiries into the state court's specific determinations. In this case: (1) whether the court's factual determination 2 that Railey had waived his challenge to Judge Bertram's qualification was incorrect and based on an unreasonable determination of the evidence presented; (2) whether the court's legal determination that-as a matter of state law-Railey was required to show actual bias was contrary to or an unreasonable application of clearly established Supreme Court precedent; and (3) whether the court's constitutional determination that Railey's constitutional rights had not been violated was contrary to or an unreasonable application of clearly established Supreme Court precedent, or based on an unreasonable determination of the facts. For ease of analysis, we may consider these three issues out of order and resolve the easiest...

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