Garr v. Taylor

• Decision Date: 25 September 2014
• Docket Number: CIVIL ACTION NO. 14-144-DCR
• Parties: MARIO GARR, PETITIONER, v. CLARK TAYLOR, WARDEN, RESPONDENT.
• Court: U.S. District Court — Eastern District of Kentucky

MARIO GARR, PETITIONER, v. CLARK TAYLOR, WARDEN, RESPONDENT.

CIVIL ACTION NO. 14-144-DCR

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION LEXINGTON

September 25, 2014

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Mario Garr entered pleas of guilty in the Fayette Circuit Court to two counts of first degree trafficking in a controlled substance, and one count of being a first degree persistent felony offender. [R. 1, Appx. at 42]. He was sentenced to five years incarceration on the first count of trafficking, enhanced to ten years by the Persistent Felony Offender, and received a sentence of five years on the second count of trafficking, to run concurrently with the first count. [R. 1, Appx. at 42].

He brings the present action under 28 U.S.C. § 2254 challenging his conviction due to his counsel's ineffective assistance. Specifically, he brings the following claims alleging that his guilty plea was the result of ineffective assistance of counsel: (1) when his counsel failed to properly investigate and present an adequate defense; (2) that counsel failed to advise the petitioner that he would be ineligible for probation for ten years due to his status as a persistent felony offender, and incorrectly informed him that he would be eligible for parole after serving six and one-half years;(3) that counsel was ineffective due to his/her simultaneous representation of a confidential informant, and that counsel conspired to induce him to accept a plea offer and avoid trial in order to avoid presenting a defense of entrapment, and finally (4) he brings a claim that his conviction lacked sufficient evidence.

Having considered the record, and for the reasons set forth below, the Court will recommend that Garr's petition be denied.

FACTUAL BACKGROUND

The facts of this case, as recounted by the Kentucky Court of Appeals in its opinion considering Garr's appeal from a denial of his motion for post-conviction relief, are not being challenged, and are therefore are presumed to be correct. McAdoo v. Elo, 365 F.3d 487, 493-94 (6^th Cir. 2004); Mitchell v. Mason, 324 F.3d 732, 737-38 (6^th Cir. 2003). The facts are as follows:

Garr was arrested on March 3, 2010, after selling narcotics to a confidential informant (CI). He was arraigned in district court the next day, and his case was sent to the grand jury, which indicted him on two counts of first-degree trafficking in a controlled substance and one count of being a first-degree persistent felony offender. Garr was represented at these proceedings by an attorney from the Lexington Department of Public Advocacy (DPA). The CI had been represented by the DPA since February 5, 2010. When members of the DPA realized that they might face a potential conflict of interest in representing both Garr and the CI who had helped to incriminate him, a private attorney was retained to represent the CI on March 8, 2010. The CI entered a plea of guilty to unspecified charges on March 25, 2010.

Garr's attorney filed a motion to suppress the evidence against him, which was denied. Garr entered a conditional plea of guilty to the charges on November 15, 2010. He received a sentence of five years on the first count of trafficking, enhanced to ten years by the PFO charge, and a sentence of five years on the second count of trafficking, to be run concurrently with the first count.

About a year later, Garr filed a motion pursuant to RCr 11.42, alleging that his counsel was ineffective (1) due to a conflict of interest arising from the DPA's simultaneous representation of Garr and the CI; (2) for failing to pursue an effective defense strategy; and (3) for failing to inform him that he would not be eligible for parole until he had served a minimum term of ten years.

Garr v. Commonwealth, No. 2013-CA-000508-MR, 2014 Ky.App. Unpub. LEXIS 172, at * 1-2, (Ky. App., February 28, 2014).

STANDARD OF REVIEW

Subject to a one-year statute of limitations, state prisoners may seek federal habeas corpus relief on the ground that they are being held in custody in violation of the Constitution, law or treaties of the United States. 28 U.S.C. § 2244(d)(1); Reed v. Farley, 512 U.S. 339, 347 (1994). "Federal habeas corpus relief does not lie for errors of state law. . .[and] it is not the province of a federal habeas corpus court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-8 (1991). Accordingly, the proper inquiry herein is whether the alleged errors violated the Petitioner's federal rights. Id.

Because Garr filed his habeas petition on April 14, 2014, [R. 1] his claims are governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. Pursuant to AEDPA, an application for a writ of habeas corpus on behalf of a person in custody on a state court conviction 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 the facts in light of the evidence presented at the State court proceeding.

28 U.S.C. § 2254(d).

Thus, a federal court may grant a writ of habeas corpus based on a determination of law rendered by a state court under two different clauses. Under the "contrary to" clause, a federal courtmay grant habeas relief if the state court arrives at a conclusion opposite that of the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has decided on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); White v. Mitchell, 431 F.3d 517, 523 (6^th Cir. 2005); Jones v. Jamrog, 414 F.3d 585, 591 (6^th Cir. 2005). The words "contrary to" should be construed to mean "diametrically different, opposite in character or nature, or mutually opposed." Williams, 529 U.S. at 405.

Under the "unreasonable application" clause, a federal court may grant habeas relief if the state court identifies the correct governing legal principle from the Supreme Court's decision but unreasonably applies that principle to the facts. Id., at 407-08. Significantly, relief is not available if the state court merely applied clearly established federal law erroneously or incorrectly. Id., at 411. The application must be "objectively unreasonable." Id., at 407.;Lordi v. Ishee, 384 F.3d 189, 195 (6^th Cir. 2004). Relief is also available under the clause if the state court decision either unreasonably extends or unreasonably refuses to extend a legal principle from Supreme Court precedent to a new context. William, 529 U.S. at 407; Arnett v. Jackson, 393 F.3d 681, 686 (6^th Cir. 2004). "The state-court decision need not refer to relevant Supreme Court cases or even demonstrate an awareness of them." Slagle v. Bagley, 457 F.3d 501, 513 (6^th Cir. 2006) (citing Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)); see also Stewart v. Erwin, 503 F.3d 488, 493 (6th 2007). "Instead, it is sufficient that the result and reasoning are consistent with Supreme Court precedent." Slagle, 457 F.3d at 514; see also Stewart,503 F.3d at 493.

Ultimately, AEDPA's highly deferential standard requires that this Court give the state court decision "the benefit of the doubt." Slagle v. Bagey, 457 F.3d 501, 514 (6^th Cir. 2006). A federal habeas court must give complete deference to evidentiary-supported state court findings of factpursuant to the presumption of correctness now found in 28 U.S.C. § 2254(e)(1). Sumner v. Mata, 455 U.S. 591, 597 (1982). Likewise, this being a pro se petition, the undersigned is mindful that it is held to a less stringent standard than those drafted by legal counsel. See Cruz v. Beto, 405 U.S. 319 (1972).

GROUNDS I AND IV - PROCEDURALLY BARRED FROM REVIEW

Before reviewing the merits of a habeas petition, a court should consider any applicable procedural-bar issue which would preclude consideration of claims on the merits. Lambrix v. Singletary, 520 U.S. 518, 524 (1997). In this case, the Respondent correctly asserts that two of Garr's grounds for relief are procedurally barred from review in this proceeding. ¹ [R. 8]. The Respondent points out that Garr did not invoke a full round of Kentucky's post-conviction appellate procedure to consider two of the claims he now brings.

Indeed, a state prisoner may procedurally default a claim for purposes of § 2254 by failing to raise it in the state court, or pursue the claim through the state's ordinary appellate review procedure. O'Sullivan v. Boerckel, 526 U.S. 838, 847 (1999); Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). Any such claim will be procedurally defaulted if, at the time the prisoner's habeas petition is filed, state law does not permit the prisoner to further pursue the claim. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982). Theprisoner will not be allowed to present such claims in a later habeas proceeding unless he can show cause to excuse his failure to present the claims in state court as well as actual prejudice to his defense at trial or on appeal. Gray v. Netherland, 518 U.S. 152, 162 (1996); Coleman, 501 U.S. at 750 (1991); Teague v. Lane, 489U.S. 288, 298-99 (1989); Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004). A petitioner who is unable to show cause and prejudice may then only obtain habeas review if his case fits within a narrow class of cases permitting review in order to prevent a fundamental miscarriage of justice, such as when the petitioner submits new evidence which shows that a constitutional violation has probably resulted in a conviction of one who is actually innocent. Dretke v. Haley, 541 U.S. 386, 393 (2004); Murray v. Carrier, 477 U.S. 478, 495-96 (1986);...