Shegog v. Meko

• Decision Date: 27 July 2012
• Docket Number: CIVIL ACTION NO. 10-289-KSF
• Parties: KEVIN SHEGOG, PLAINTIFF, v. JOSEPH MEKO, WARDEN, RESPONDENT.
• Court: U.S. District Court — Eastern District of Kentucky

KEVIN SHEGOG, PLAINTIFF,

v.JOSEPH MEKO, WARDEN, RESPONDENT.

CIVIL ACTION NO. 10-289-KSF

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION COVINGTON

Dated: July 27, 2012

MAGISTRATE JUDGE'S

REPORT AND RECOMMENDATION

Kevin Shegog brings this pro se habeas corpus action to challenge his incarceration on state convictions of first degree robbery and persistent felony offender in the first degree.[R. 1].Consistent with local practice, this matter has been referred to the undersigned for a Report and Recommendation.The matter having been fully briefed, and for the reasons discussed below, it is recommended that the petition be denied.

FACTUAL AND PROCEDURAL BACKGROUND

On June 13, 2002, Kevin Shegog was convicted of first degree robbery and persistent felony offender in the first degree, and sentenced to twenty years imprisonment.The Kentucky Supreme Court recounted the salient facts of the matter as follows:

Appellant's convictions stem from a robbery that was committed on May 28, 2001, at a BP gas station in Highland Heights, Kentucky.Joy Powell, a witness who was inside the gas station at the time of the robbery, stated that she observed an African American male wearing a red and white sports jacket and a nylon stocking on his head pass by the front glass window and then enter the store.Once inside, Powell stated that the man grabbed her and, as he pulled the stocking down over his face, announced that he had a gun.Powell was ordered behind the counter with the store clerk and both were told to lie on the floor.After taking the money from the register, the robber fled the scene.Powell's husband Steve, who had been pumping gas, observed the man get into a dark colored vehicle with a vanity license plate that read "Shegog."

* * *

The day after the robbery, Powell was shown a photo line-up consisting of computer-generated images.Powell stated at the time she was unable to identify the robber due to the quality of the pictures.Police thereafter obtained an actual photograph of Appellant and compiled a second photo array.Powell initially told Detective Thomas that she still could not identify the robber.However, as Detective Thomas was getting into his car to leave the Powell residence, Powell stopped him and stated that she did, in fact, recognize Appellant from the second line-up, but that she was afraid to testify.

Shegog v. Commonwealth, 142 S.W.3d 101, 103-04(Ky.2004).

On December 8, 2004, Shegog filed a motion for relief under RCr 11.42, alleging various grounds of ineffective assistance of counsel and prosecutorial misconduct.His motion was denied by the trial court without an evidentiary hearing on December 30, 2004.However, the Kentucky Court of Appeals vacated the trial court's order and remanded the case for an evidentiary hearing on June 2, 2006.On remand, and following the evidentiary hearing, the trial court entered an order denying Shegog's RCr 11.42 motion, based upon the following findings of fact:

1.On September 28, 2001, the Defendant, Kevin Shegog was indicted for Robbery in the First Degree.The Robbery occurred on May 28, 2001.The case was set for trial by jury.

2.The Hon. Theodore Knoebber was appointed to represent the Defendant.Prior to trial Attorney Dowell filed a motion for funding to hire an expert witness to attack the eyewitness identification.Off the record Judge Wehr advised Attorney Dowell that the law did not permit such eyewitness identification attacks and funding would not be available.Hon. Steven Dowell withdrew the motion.

3.Prior to trial the Hon. Steven Dowell requested that the Court require the Commonwealth to advise him if any witness had a criminal history.The Court overruled the motion.Defendant was granted funding to hire an investigator.An investigator was hired and did interview Steven Powell who identified the license plate.The witness was not asked about his criminal history.Attorney Dowell moved to suppress the eyewitness identification by Joy Powell out of court and in court; and to suppress still photos.

3.[sic] On April 2, 2002, the Defendant was tried.During the trial the Commonwealth presented the 911 tape of the Robbery in progress.The tape was authenticated by the 911 operator who took the call.The Commonwealth presentedtwo eyewitnesses to the crime.Joy Powell made an in court identification.She testified that she saw the Defendant prior to him putting a mask on his face.The second witness, Steven Powell testified that he watched the robbery and then followed the robber.He saw the robber, (a black male wearing a Indiana University jacket) get into a vehicle with the license plate "Shegog".The Commonwealth presented 10 still photos of the robber recorded by the BP gas station surveillance tape.

4.At trial Attorney Dowell did voir dire the jury.He brought up issues concerning eyewitness identification.

5.At trial Attorney Dowell had an opportunity and did cross examine Joy Powell and Steven Powell.

6.At the conclusion of the evidence the jury found the Defendant, Kevin Shegog, guilty.On June 13, 2002, the Defendant was sentenced to 20 years to serve.

7.In December 2002the Supreme Court of Kentucky ruled that expert testimony could be used to attack eyewitness identification.Commonwealth v. Christie, 98 S.W.3d 485(Ky.2002).

8.Sometime after his trial the Defendant learned that Steven Powell had a prior felony conviction arising out of Campbell County.He was indicted on April 26, 2001 and convicted on January 16, 2002.

9.After a remand by the Kentucky Court of Appeals by Order of July 13, 2006, the Defendant filed various motions including a renewed motion for evidentiary hearing to support his Rcr [sic] 11.42 motion.

10.Hon. Anthony Bracke testified at the 11.42 hearing on January 19, 2007, that he had prosecuted Steven Powell.However, he did not disclose the information to the Defense because he was not aware of the prosecution until after the trial.

11.Attorney Dowell testified at the 11.42 hearing.Attorney Dowell testified that he withdrew the motion for an eyewitness identification expert because Judge Wehr told him that the law did not allow such.He testified that he would not proceed with a motion not supported by law.He testified that he wanted to keep his credibility with Judge Wehr for the sake of his clients.He testified that he did not know at the time of trial that Steven Powell had a criminal history.He had made a motion to compel the Commonwealth to produce that information and his motion was overruled.He obtained an [sic] private investigator but the investigator did not advise him that Powell had a criminal history.He testified that he did not attack the 911 tape because the 911 operator who received the call came to trial to testify.He testified that he did not subpoena the phone records because he believed the 911 tape was authentic.Hetestified that he did cross examine Joy Powell and Steven Powell.He asked Joy Powell about her ability to identify African Americans.

(TR III 117-19.)

The trial court then made the following conclusions of law:

This Court does not believe that Attorney Steven Dowell[sic] performance was deficient and even if it was, Defendant has not proven that he was prejudiced.

Although Attorney Dowell withdrew his motion to hire an expert to attack the eyewitness identification, Attorney Dowell was told his motion would be not be sustained because it was not supported by law.Attorney Dowell did not believe it was supported by law.It was not until months after the trial a published decision was rendered ending the debate that such would be allowed.After reviewing the cross examination of Joy Powell it appears that Attorney Dowell raised several key problems with cross racial eyewitness identification.There is no evidence that the jury needed an expert to explain those problems.

Unlike the contention of the Defendant in his original motion to vacate that his attorney was aware of Steve Powell's criminal history, Attorney Dowell was not aware.The Commonwealth testified that it was not aware.There is no evidence that the Commonwealth intentionally withheld this information.Even if Attorney Dowell should have discovered this information there is no evidence that the outcome of the trial would have been different.The Commonwealth's case did not rest only on Steven Powell's identification of the Defendant or the"Shegog" license plate.The Commonwealth had a 911 tape that was made while the robbery was in progress.The Commonwealth had another witness, Joy Powell, who identified the Defendant.The Commonwealth introduced 10 still photos of the robber taken from the BP gas station surveillance tape.

Last, there appears to be no reason Attorney Dowell should have subpoenaed phone records or attacked the authenticity of the 911 tape.The 911 tape was authenticated by the 911 operator who took the call.

(TR III 120-21.)

The Kentucky Court of Appeals affirmed the trial court's decision in Shegog v. Commonwealth, 275 S.W.3d 728(Ky. App., 2009), and his motion for discretionary review was denied by the Supreme Court of Kentucky on February 11, 2009.Shegog filed another motion to vacate pursuant to CR 60.02 and RCr 11.42 on March 24, 2009.That motion was denied by the trialcourt, affirmed by the Kentucky Court of Appeals on May 21, 2010, and his motion for discretionary review was denied by the Supreme Court of Kentucky on November 10, 2010.

On December 21, 2010, he filed the present petition under 28 U.S.C. § 2254, challenging his conviction and sentence.[R. 1].The Commonwealth responded on April 28, 2011, and Shegog filed a reply on August 31, 2011.In this action, Shegog asserts the following claims:

1.The Commonwealth committed a Brady violation by failing to disclose a key witness, Steven Powell's recent felony conviction and his probationary status;

2.The Trial court erred by failing to his suppress Shegog's in-court identification;

3.Trial counsel...