Hall v. Green, Case No. 6:17-cv-197-JMH-CJS
| Decision Date | 20 August 2019 |
| Docket Number | Case No. 6:17-cv-197-JMH-CJS |
| Parties | ROGER DEAN HALL, Petitioner, v. JAMES DAVID GREEN, WARDEN, Respondent. |
| Court | U.S. District Court — Eastern District of Kentucky |
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Petitioner Roger Dean Hall has filed a pro se Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus (R. 1). Respondent filed an Answer (R. 9), to which Hall filed a Reply (R. 11). Having all relevant documents before the Court, the matter is now ripe for consideration and preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b). For the reasons set forth below, it will be recommended that Hall's § 2254 Petition be denied.
In December 2008, a grand jury returned an Indictment in the Harlan County, Kentucky, Circuit Court, case number 08-CR-710, alleging that Petitioner Hall unlawfully aided Raymond Harris in the commission of the murder of Harlan County Sherriff Paul Browning, Jr. by providing Harris with money and a handgun and, further, that Petitioner aided Dwayne Harris in the commission of drug trafficking by "taking payoffs in return for providing assistance in" drug trafficking activities. (R. 9-2, at 1-2). The Indictment charged Petitioner with two counts of criminal conspiracy to commit murder and one count of complicity to commit trafficking in a controlled substance in the first degree. (Id.). On September 29, 2009, by a criminal information in Harlan Circuit Court case number 09-CR-572, Petitioner was also charged with three counts of trafficking in a controlled substance in the first degree. (Id. at 4-5).
In 2009, Petitioner entered an Alford plea to amended charges in both cases of two counts of criminal facilitation to commit murder and four counts of complicity to traffic in a controlled substance in the second degree. (Id. at 7-17, 58). Petitioner appeared in Harlan Circuit Court on November 2, 2009, to plead guilty, and a final judgment was entered on November 9, 2009 sentencing Petitioner to five years on each of the six counts, to be served consecutively, for a total sentence of imprisonment of thirty years as recommended by the plea agreement. (Id. at 15-17; 58). Under the plea agreement, Petitioner agreed to waive the maximum sentence limit for consecutive Class D Felonies under Kentucky law. (Id. at 12, 60-61).
Petitioner did not file a direct appeal. Rather, almost six years after his judgment, on May 11, 2015, Petitioner filed a pro se "Motion to Correct Invalid Sentence" under Kentucky Rule of Criminal Procedure ("RCr") 11.02, which the circuit court construed as a motion brought pursuant to RCr 11.42 because the former rule "provides no relief from sentencing mistakes." (Id. at 18-25, 58). The Harlan Circuit Court entered an order on August 3, 2015, denying the motion as untimely. (Id. at 25-26, 59). On April 5, 2016, the Kentucky Court of Appeals affirmed the decision of the Harlan Circuit Court, finding the motion untimely and further holding that Hall's argument that his sentence was invalid failed on the merits under Kentucky law. (Id. at 57-61). On August 17, 2016, the Kentucky Supreme Court denied discretionary review. (Id. at 63).
On July 14, 2017, Petitioner Hall, pro se, filed with this Court his Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus. (R. 1). In his Petition, Hall asserts that his thirty-year sentence is now in violation of state law based on the Kentucky Supreme Court's ruling in McClanahan v. Commonwealth, 308 S.W.3d 694 (Ky. 2010), and that the "Harlan Circuit Court abused it's authority when it refused to correct" his unlawful sentence. (Id. at 7; R. 1-1, at 9-13). He further argues that because his sentence is now unlawful, he is being imprisoned in violation of Supreme Court precedent, the Due Process Clause of the Fifth and Fourteenth Amendments, and the Eighth Amendment of the United States Constitution, as well as the Kentucky Constitution. (R. 1-1, at 8-13). He also asserts that the Harlan Circuit Court abused its discretion when it amended Petitioner's motion from one brought pursuant to RCr 11.02 to one brought under RCr 11.42 because under the Kentucky Supreme Court's ruling in Winstead v. Commonwealth, 327 S.W.3d 479 (Ky. 2010), "sentencing errors are not reviewable under a RCr[] 11.42 rule." (R. 1, at 7; Id. at 6).
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a petitioner generally has only one year in which to file a federal petition for writ of habeas corpus. See 28 U.S.C. § 2244(d). The AEDPA statute of limitations begins to run from the latest of four circumstances:
28 U.S.C. § 2244(d)(1)(A)-(D). The circumstance applicable to Petitioner's case is "the date on which the [state court] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).
Here, Petitioner's judgment was entered by the Harlan Circuit Court on November 9, 2009, following the entry of his Alford plea. (R. 9-2, at 15). While Hall waived his right to appeal within his plea agreement, "a defendant may by direct appeal challenge the legality of a sentence imposed pursuant to a guilty plea because sentencing issues are considered 'jurisdictional' and cannot be waived." Elmore v. Commonwealth, 236 S.W.3d 623, 626 (Ky. Ct. App. 2007). Out of an abundance of caution, the Court will assume for purposes of the present Petition that, because Petitioner is challenging the legality of his sentence, he would have been able to file a direct appeal in his case. Under Kentucky law, Hall had thirty days to appeal his sentence. See Ky. RCr 12.04(3). Therefore, Petitioner's judgment became final on December 9, 2009. Thus, Petitioner's one-year period under the AEDPA expired on December 9, 2010, and, consequently, Petitioner's pending § 2254 Petition filed in 2017 is barred by the statute of limitations.
Hall asserts his Petition is timely based on various grounds. First, he argues his Petition is timely because of the timing of his discovery of the Kentucky Supreme Court's ruling in McClanahan v. Commonwealth. (R. 1, at 11). Further, Petitioner asserts his Petition is timely because it was filed within one year of the Kentucky Supreme Court's denial of his motion for discretionary review. (R. 1-1, at 3). Next, he argues that because Kentucky precedent has left him with no remedy within state court, Respondent cannot rely on a time limitation or procedural bar. (R. 1, at 11). Finally, Hall argues his petition is timely based on the "miscarriage of justice exception." (R. 1-1, at 13; R. 11, at 7).
First, he argues his Petition is timely because "the facts necessary to support [his] petition were not available . . . prior to" the Kentucky Supreme Court's decision in McClanahan v. Commonwealth. (R. 1, at 11). To the extent that the Petitioner is asserting § 2244(d)(1)(D) is applicable, such argument is misplaced. This Court has held that under § 2244(d)(1)(D) "[t]he 'factual predicate of the claim' applies to facts necessary to stating a plausible claim for relief" and "[c]hanges in substantive law . . . generally are not facts supporting a claim." Goble v. Taylor, No. 14-cv-58-ART-REW, 2015 WL 770389, at *3 (E.D. Ky. Feb. 19, 2015). Nor can Petitioner assert § 2244(d)(1)(C) is applicable, as this subsection requires the United States Supreme Court to recognize a new constitutional right that is retroactively applicable to cases on collateral review. Here, the McClanahan decision was a change in substantive state law and was not a decision by the U.S. Supreme Court recognizing a new constitutional right. Thus, neither § 2244(d)(1)(C) nor (D) is applicable. As a result, Hall's argument to overcome the expired statute of limitations fails.
Next, Petitioner asserts his Petition is timely because the federal statute of limitations did not begin to run until the Kentucky Supreme Court denied his motion for discretionary review on August 27, 2016. (R. 1-1, at 3; Id. at 63). In support, he cites to Kentucky Civil Rule 60.02(e), arguing "there is no time limit to correct a void judgment, or sentence." (R. 1-1, at 3). However, § 2244 provides that it is at the conclusion of direct review, not collateral review, that the one-year statute of limitations begins to run. 28 U.S.C. § 2244(d)(1). Moreover, the one-year period of limitations provided by the AEDPA is tolled by the amount of time that "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). "The tolling provision does not, however, 'revive' the limitations period (i.e. restart the clock at zero); it can only serve to pause a clock that has not yet fully run." Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) (internal citations omitted). Hall's one-year statute of limitations to file his § 2254 Petition expired one-year after his judgment became final on December 9, 2009. Hall did not file a § 2254 petition within the subsequent one-year period, nor within that year did he file a "properly filed application for State post-conviction or other collateral review" that would...
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