Foley v. Parker

• Decision Date: 22 March 2007
• Docket Number: No. 04-5746.,04-5746.
• Citation: 481 F.3d 380
• Parties: Robert Carl FOLEY, Petitioner-Appellant, v. Philip PARKER, Warden, Kentucky State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

481 F.3d 380

Robert Carl FOLEY, Petitioner-Appellant, v. Philip PARKER, Warden, Kentucky State Penitentiary, Respondent-Appellee.

No. 04-5746.

United States Court of Appeals, Sixth Circuit.

Argued: October 25, 2006.

Decided and Filed: March 22, 2007.

ARGUED: Timothy T. Riddell, Perch & Toby, Lexington, Kentucky, for Appellant. David A. Smith, Office of the Attorney General, Frankfort, Kentucky, for Appellee. ON BRIEF: Timothy T. Riddell, Perch & Toby, Lexington, Kentucky, Milton Coburn Toby, Georgetown, Kentucky, for Appellant. David A. Smith, Tami Allen Stetler, Office of the Attorney General, Frankfort, Kentucky, for Appellee.

Before: MARTIN, GILMAN, and COOK, Circuit Judges.

MARTIN, J. (pp. ___-___), delivered a separate opinion concurring in part and dissenting in part.

OPINION

COOK, Circuit Judge.

Petitioner Robert Carl Foley was convicted of murder in Kentucky and sentenced to death. After a lengthy appellate process in the Kentucky courts, Foley filed a habeas petition raising thirty-six separate grounds for relief. The district court reviewed and denied each one, but granted a Certificate of Appealability (COA) as to four of Foley's claims. Upon Foley's request, we expanded the COA to include a fifth claim. For the reasons set forth below, we affirm the district court's judgment.

I. Background

Robert Carl Foley shot and killed the brothers Rodney and Lynn Vaughn in Foley's home in Laurel County, Kentucky, on August 17, 1991. A number of people, including the Vaughn brothers, Phoebe Watts, Ronnie and Bill Dugger, Rocky and Lisa Arthur, Marge Foley (petitioner's wife), Louise Bridges (Foley's aunt), and at least six children, were gathered at the Foley home when Foley returned from a car auction with his friend Danny Joe Bryant. Although the other men present had stored their guns in a kitchen cabinet upon arrival, Foley kept a .38 Colt snubnose revolver stored under his belt and concealed by his shirt.

The group sat at the kitchen table drinking beer, and tempers soon flared between Foley and Rodney Vaughn, who was intoxicated and belligerent. Foley admitted he instigated a fight by punching Rodney. After a brief scuffle, Danny Joe Bryant separated the men, and they returned to the table to continue drinking. The situation escalated, however, when Rodney pointed at Foley and warned Foley not to sucker-punch him again. Foley responded violently, knocking Rodney down with his fist several times. Foley then drew his revolver and shot Rodney six times at close range, in the chest, left arm, and back.

The house emptied during the melee, leaving only Foley, the Vaughn brothers, and Ronnie Dugger in the house. As the only living witness (other than Foley) to what happened next, Ronnie Dugger explained that Foley retrieved another gun from the kitchen cabinet, returned to the living room where Lynn Vaughn remained next to his dying brother, and shot Lynn in the back of the head. He then kicked Rodney Vaughn's corpse, saying "you son of a bitch, you caused me to have to kill my partner." Later, Foley explained that he hated to kill Lynn, "but blood is thicker than water."

Foley then organized Ronnie Dugger, Bill Dugger, and Danny Joe Bryant to assist him in disposing the bodies and covering up the crimes. They dumped the Vaughn brothers' bodies in Sinking Creek in Laurel County and attempted to cover up the incident and cast blame on other people. Authorities discovered the bodies two days later and indicted Foley on two counts of capital murder and other related offenses. Foley was later charged with four more murders after police discovered four corpses in a septic tank in Laurel County.

Foley's trial for the Vaughn murders was scheduled for August 11, 1993. On the eve of trial, August 10, 1993, Foley's attorney moved for a change of venue because of pretrial publicity, which the trial court denied after a hearing. The jury found Foley guilty of two counts of murder and, following the jury's recommendation, the trial court sentenced Foley to death. The Kentucky Supreme Court affirmed the convictions and sentences in November 1996, and the United States Supreme Court denied certiorari in 1997. Foley v. Commonwealth, 942 S.W.2d 876 (Ky.1996), cert. denied, 522 U.S. 893, 118 S.Ct. 234, 139 L.Ed.2d 165 (1997). Foley filed a post-conviction petition pursuant to Ky. R.Crim. P. 11.42, but the trial court denied relief. The Kentucky Supreme Court affirmed that decision in March 2000. Foley v. Commonwealth., 17 S.W.3d 878(Ky.), cert. denied, 531 U.S. 1055, 121 S.Ct. 663, 148 L.Ed.2d 565 (2000). Foley then moved for a new trial, but the trial court denied the motion, and the Kentucky Supreme Court affirmed. Foley v. Commonwealth, No.2002-SC-0222-TG, 2003 WL 21993756, at *1 (Ky. Aug.21, 2003).

While the state proceedings pended, Foley moved for a stay of execution in the district court and later filed his petition for a writ of habeas corpus. The district court granted Foley leave to amend his petition to include the claim that formed the basis of his state-court motion for a new trial. The magistrate judge reviewed Foley's petition, the Warden's response, and subsequent pleadings. The magistrate judge recommended that the petition be denied and that a COA be granted with respect to the merits of three claims and the timeliness of the claim Foley added by amendment. Foley filed objections, and the Warden gave notice that he was not going to respond to Foley's objections. The district court adopted the magistrate judge's report in part and rejected it in part. The district court denied the petition and granted Foley a COA with respect to four claims, including both the timeliness and the merits of the claim added by amendment. Foley applied to this court for an expansion of the COA, which we granted by adding a fifth claim.

II. Standard of Review

We review de novo a district court's legal conclusions and mixed questions of law and fact, and we review its factual findings for clear error. Armstrong v. Morgan, 372 F.3d 778, 781 (6th Cir.2004); Lucas v. O'Dea, 179 F.3d 412, 416 (6th Cir.1999). Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a district court shall not grant a habeas petition with respect to any claim that was adjudicated on the merits in the state courts unless the adjudication resulted in a decision that (1) was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court; or (2) was based on an unreasonable determination of the facts in light of the evidence presented to the state courts. 28 U.S.C. § 2254(d).

Under the "contrary to" clause, a federal habeas 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 on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct legal principle from the Supreme Court's decisions but unreasonably applies it to the facts of the petitioner's case. Id. In analyzing whether a state court decision is "contrary to" or an "unreasonable application" of clearly established Supreme Court precedent, a federal court may only look to the holdings of the Supreme Court's decisions as of the time of the relevant state-court decision. Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003); Williams, 529 U.S. at 412, 120 S.Ct. 1495. The court may look to lower courts of appeals' decisions, not as binding precedent, but rather to inform the analysis of Supreme Court holdings to determine whether a legal principle had been clearly established by the Supreme Court. Hill v. Hofbauer, 337 F.3d 706, 716 (6th Cir.2003). Finally, the habeas petitioner has the burden of rebutting, by clear and convincing evidence, the presumption that the state court's factual findings were correct. See 28 U.S.C. § 2254(e)(1); McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir.2004).

III. Ineffective Assistance of Counsel During the Penalty Phase of Foley's Trial

Foley claims he was denied effective assistance of counsel because his trial counsel failed to fully investigate his background and did not produce any mitigating evidence during the penalty phase of his trial. He contends that his counsel should have called six family members, five friends, and a school teacher who had not seen him since the 1970s to testify on his behalf. Following a detailed hearing in the Kentucky trial court pursuant to Ky. R.Crim. P. 11.42, the Kentucky Supreme Court reviewed this claim and denied it. The magistrate judge reviewed the Rule 11.42 hearing record and the Kentucky Supreme Court's decision, concluding that Foley's claim should be denied because the Kentucky Supreme Court's conclusion was neither contrary to nor an unreasonable application of clearly established federal law. The district court agreed and denied Foley's claim.

Strickland v. Washington and AEDPA

AEDPA limits our inquiry to assessing whether the Kentucky Supreme Court's conclusion that Foley could not show either deficient performance or prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court at the time the Kentucky Supreme Court issued its June 15, 2000, decision reviewing his claim. Thus, despite Foley's protestations, our review will ignore interpretations of Strickland by the Supreme Court in cases such as Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), and Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), which were decided after the Kentucky Supreme Court's...