Woolbright v. Crews

Decision Date29 June 2015
Docket NumberNo. 13–6115.,13–6115.
Citation791 F.3d 628
PartiesGary R. WOOLBRIGHT, Petitioner–Appellant, v. Cookie CREWS, Warden, Respondent–Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

791 F.3d 628

Gary R. WOOLBRIGHT, Petitioner–Appellant
v.
Cookie CREWS, Warden, Respondent–Appellee.

No. 13–6115.

United States Court of Appeals, Sixth Circuit.

Argued: March 10, 2015.
Decided and Filed: June 29, 2015.


791 F.3d 629

ARGUED:Edmund S. Sauer, Bradley Arant Boult Cummings LLP, Nashville, Tennessee, for Appellant. James C. Shackelford, Office of the Kentucky Attorney General, Frankfort, Kentucky, for Appellee.ON BRIEF:Edmund S. Sauer, Jessica Jernigan–Johnson, Bradley Arant Boult Cummings LLP, Nashville, Tennessee, for Appellant. James C. Shackelford, Office of the Kentucky Attorney General, Frankfort, Kentucky, for Appellee.

Before: SILER, ROGERS, and COOK, Circuit Judges.

OPINION

SILER, Circuit Judge.

Petitioner Gary Woolbright appeals the district court's denial of the ineffective-assistance-of-trial-counsel (IATC) claims contained in Woolbright's federal habeas petition. For the reasons stated below, we DENY the Warden's motion to vacate the certificate of appealability, AFFIRM IN PART the district court's denial of three IATC claims, REVERSE IN PART the district court's denial of four additional IATC claims, and REMAND for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Woolbright was indicted in 2001 by a Kentucky grand jury for murder, tampering

791 F.3d 630

with evidence, receipt of stolen property, trafficking in a controlled substance, and possession of a controlled substance. A jury subsequently found him guilty of wanton murder, receiving stolen property with intent to manufacture methamphetamine, first degree possession of a controlled substance, and first degree trafficking in a controlled substance. See Woolbright v. Commonwealth, No. 2003–SC–0368–MR, 2005 WL 2045485, at *1 (Ky. Aug. 25, 2005). Woolbright was sentenced to fifty-five years in prison. Id. His appeal to the Kentucky Supreme Court was affirmed. Id. at *8.

In 2006, Woolbright filed a pro se motion under Kentucky Rule of Criminal Procedure 11.42 to vacate his conviction. The Kentucky trial court scheduled an evidentiary hearing and appointed counsel. Appointed counsel did not file a supplemental memorandum but instead requested leave for Woolbright to file one himself. The trial court subsequently found “that no evidentiary hearing [was] required” and denied the pro se petition. New counsel was appointed to assist Woolbright in his post-conviction appeal to the Kentucky Court of Appeals. The appeals court affirmed the trial court's denial of the Rule 11.42 petition, Woolbright v. Commonwealth, 2009–CA–001689–MR, 2011 WL 1327362 (Ky.Ct.App. Apr. 8, 2011), and the Kentucky Supreme Court denied review.

In 2012, Woolbright filed a pro se petition in federal district court for habeas corpus relief. His petition raised ineffective assistance of counsel and due process claims. In relevant part, Woolbright enumerated seven instances of ineffective assistance of trial counsel that were not adjudicated on the merits by the Kentucky Court of Appeals. Four of these claims allege trial counsel's failure to: (1) interview exculpatory witnesses; (2) object to, and request a mistrial for, prosecutorial misconduct during the sentencing phase of the trial; (3) investigate the ownership of a second gun found at the scene; and (4) make a double jeopardy objection to charges of both possession and trafficking of controlled substances. None of these claims were raised in Woolbright's pro se Rule 11.42 petition or his subsequent appeal. Three additional claims allege trial counsel's failure to: (1) prepare a defense to the charge of receiving stolen property or object to an improper jury instruction on that charge; (2) move for a directed verdict on the grounds that the jury verdict was not unanimous; and (3) object to the jury instruction on wanton murder. These three IATC claims were raised in the Rule 11.42 petition but not raised on post-conviction appeal by Woolbright's appointed counsel.

Without holding an evidentiary hearing, the magistrate judge recommended the denial of the habeas petition. The magistrate judge found that all seven IATC claims had been procedurally defaulted, and that Woolbright could not rely on the absence or ineffectiveness of post-conviction counsel to excuse the default. The magistrate judge specifically cited Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), for the proposition that “Woolbright cannot use a claim of ineffective assistance of counsel during post-conviction proceedings to establish ‘cause.’ ” Motivated by “an abundance of caution,” the magistrate judge included a pro forma statement that, “As to each claim Woolbright has failed to demonstrate that there is a reasonable probability that, but for counsel's alleged error, the result of the proceeding would have been different because of the plethora of evidence against him.” No additional analysis of the merits of the seven IATC claims was provided.

791 F.3d 631

The district court adopted the magistrate judge's Findings of Facts and Conclusions of Law. The district court denied Woolbright's habeas petition and declined to issue a certificate of appealability (COA).

This court granted Woolbright a COA on the seven IATC claims. After counsel was appointed and an initial brief was filed, the Warden filed a motion to dismiss on the grounds that the COA was improvidently granted. The Warden's main argument was that this court has overlooked the fact that the district court had ruled on the merits of Woolbright's IATC claims. The motion was subsequently referred to this panel for consideration along with the merits.

STANDARD OF REVIEW

A federal court may not entertain a habeas claim unless the petitioner has first exhausted his state court remedies. See 28 U.S.C. § 2254(b)(1)(A) ; O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). In order to exhaust a claim, the petitioner “must ‘fairly present’ his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) ). When a petitioner has failed to fairly present his claims to the state courts and no state remedy remains, his claims are considered to be procedurally defaulted. See Gray v. Netherland, 518 U.S. 152, 161–62, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996).

If a petitioner's claims are procedurally defaulted, they may not be reviewed by a habeas court unless he can demonstrate “cause” and “prejudice.” McMeans v. Brigano, 228 F.3d 674, 680 (6th Cir.2000). In Coleman v. Thompson, the Supreme Court set forth a general rule that, “Given that a criminal defendant has no right to counsel beyond his first appeal in pursuing state discretionary or collateral review ... any attorney error that led to the default of [a petitioner's habeas] claims in state court cannot constitute cause to excuse the default in federal habeas.” 501 U.S. at 756–57, 111 S.Ct. 2546.

However, in recognition of the “critically important” nature of the right to the effective assistance of counsel at trial, see Trevino v. Thaler, ––– U.S. ––––, 133 S.Ct. 1911, 1921, 185 L.Ed.2d 1044 (2013), the Supreme Court has created a narrow exception to Coleman. In Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 1320, 182 L.Ed.2d 272 (2012), the Court held that “cause” to excuse procedural default can be established in situations where state law bars a petitioner's IATC claims on direct appeal and the petitioner did not have the benefit of effective assistance of counsel at his initial-review collateral proceeding. In Trevino, the Court expanded that exception to encompass those situations where a state's procedural system “in theory grants permission [to raise an IATC claim on direct appeal] but, as a matter of procedural design and systemic operation, denies a meaningful opportunity to do so.” 133 S.Ct. at 1921.

We review de novo the question of whether the Martinez/Trevino exception applies to a particular state system. See Sutton v. Carpenter, 745 F.3d 787, 790 (6th Cir.2014).

DISCUSSION

This is not the first time this court has been asked to assess a state's procedural system in light of Martinez and Trevino. In Sutton, we ruled that petitioners who

791 F.3d 632

were convicted in Tennessee state courts could avail themselves of the exception. 745 F.3d at 795–96. In doing so, we noted a number of key similarities between the Texas state court system described in Trevino and the Tennessee state system. Courts in both states have recognized the extreme difficulty of adequately raising IATC claims on direct appeal. Id. at 791–93. In both states, the deadline for post-trial motions occurs well before the deadline for preparation of a trial transcript. Id. In both states, courts have encouraged defendants to bring IATC claims on collateral review rather than direct appeal, even going so far as to provide assurances that an IATC claim is not waived simply...

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