Gowans v. Crews
Filing
22
MEMORANDUM OPINION & ORDER: 1) 18 Report and Recommendations is ACCEPTED and ADOPTED as the Court's own. 2) 1 Petition for Writ of Habeas Corpus shall be DENIED. 3) No certificate of appealability shall issue from this Court. Signed by Judge Joseph M. Hood on 8/13/2012. (SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JAMES EVERETT GOWANS,
Petitioner,
v.
COOKIE CREWS, Warden, et al.,
Defendants.
This
matter
is
before
)
)
)
)
)
)
)
)
)
Civil Case No. 11-311-JMH-CJS
***
the
MEMORANDUM OPINION & ORDER
Court
on
the
Report
and
Recommendation of Magistrate Judge Candace J. Smith [DE # 18].
Said action was referred to the magistrate for the purpose of
reviewing
the
merit
of
Petitioner’s
Petition
for
a
Writ
of
Habeas Corpus [DE # 1] pursuant to 28 U.S.C. § 2254, challenging
his conviction in a Kentucky state court. In her Report and
Recommendation,
Magistrate
Judge
Smith
recommends
that
the
Petition for Writ of Habeas Corpus should be denied. Petitioner
has filed an Objection to the Report and Recommendation [DE #
21]. For the reasons which follow, based on a de novo review of
the record, the Court accepts the Report and Recommendation, and
the Petition shall be dismissed.
I. Background
On the evening of June 29, 2002, Petitioner Gowans was with
his wife at the Rainbow Tavern in Lexington, Kentucky. Gowans
was armed with a handgun that he had borrowed from his neighbor
in order to protect himself and his wife. A few minutes after
Gowans’ arrival, Paul Payne, with whom Gowans had a history of
altercations,
entered
the
bar.
According
to
Gowans,
Payne
started shouting at him and moved toward him in a threatening
manner after he exited the bar’s restroom. Gowans pulled the
handgun out of his back pocket and shot Payne twice, killing
him.
Gowans was indicted for murder on September 9, 2002. On
March 25, 2003, a Fayette Circuit Court jury acquitted Gowans
for murder but convicted him of the lesser offense of firstdegree manslaughter, which carried a penalty range of ten to
twenty years of incarceration. During the penalty phase of the
trial, the Commonwealth presented evidence of Gowans’ six prior
misdemeanor
convictions
for
alcohol-related
offenses
and
operating a vehicle on a suspended license. Gowans’ counsel did
not present any evidence in mitigation. The jury then returned a
recommended
sentence
of
twenty
years
of
imprisonment,
the
maximum penalty, after only five minutes of deliberation. On
April 18, 2003, the trial court sentenced Gowans consistent with
the jury’s recommendation.
On direct appeal, Gowans raised two issues: whether the
trial court erred in failing to give a proper “Allen charge” and
in refusing to grant a mistrial based upon the improper charge.
The Kentucky Supreme Court affirmed the judgment of conviction
and sentence imposed by the trial court, finding that the trial
court
did
not
err
in
its
instructions
to
a
purportedly
deadlocked jury and in denying the motion for a mistrial.
Gowans then filed a Motion to Vacate, Set Aside, or Correct
sentence with the trial court, pursuant to Ky. Cr. R. 11.42,
arguing
that
he
received
ineffective
assistance
of
counsel
during both the guilt and penalty phases of his trial. The trial
court denied Gowans’ claims of ineffective assistance during the
guilt phase and held an evidentiary hearing with respect to the
claim
of
trial
mitigation
counsel’s
evidence
evidentiary
failure
during
hearing,
the
Gowans
to
investigate
penalty
presented
and
phase.
present
the
witnesses
six
During
who
testified that they were available to present testimony of his
good
character
testimony
was
during
that
the
penalty
Gowans
invited
phase
the
of
the
homeless
trial.
The
into
his
restaurant to give them food and a place to warm up, volunteered
twice a week with the Salvation Army, performed maintenance work
for his church, held fish fries at his restaurant for an afterschool program, and helped friends in need.
The
counsel’s
trial
court
decision
granted
not
to
Gowans’
investigate
motion,
or
finding
present
that
mitigation
evidence was not trial strategy, but a presumption based upon
his
general
experience,
and
that
there
was
a
reasonable
probability that, had mitigation evidence been introduced or at
least evaluated, the result of the sentencing proceeding would
have been different.
The Commonwealth appealed and the Kentucky Court of Appeals
vacated the trial court’s order, finding that counsel’s decision
not to call mitigation witnesses did not constitute ineffective
assistance of counsel because it was based on trial strategy,
which is entitled to deference. Commonwealth v. Gowans, Nos.
2008-CA-807-MR, 2008-CA-948-MR, 2010 WL 985233, at **4-5 (Ky.
Ct. App. Dec. 8, 2010). Further, the Kentucky Court of Appeals
held that even if Gowans had established that trial counsel’s
performance was constitutionally deficient, he did not establish
the prejudice requirement of Strickland v. Washington, 466 U.S.
668 (1984). Id. at **5-6. On December 8, 2010, the Kentucky
Supreme Court denied Gowans’ motion for discretionary review.
Having exhausted his state-court remedies, Gowans filed a
federal Petition for Writ of Habeas Corpus. [DE # 1]. In his
Petition, Gowans asserts that he was denied his Sixth Amendment
right
to
the
effective
assistance
of
counsel
because
trial
counsel failed to investigate and present mitigation evidence
during the penalty phase of his trial. Gowans avers that the
evidence presented during the evidentiary hearing establishes
that the decision of the Kentucky Court of Appeals, finding that
trial
counsel’s
decision
not
to
investigate
and
present
mitigation evidence was a strategic decision and not a proper
basis for habeas relief, was “contrary to” and an “unreasonable
application” of Supreme Court precedent.
II.
Analysis
A. Report and Recommendation Applied the Correct Standard
of Review
Considering Gowans’ Objections in order, he first objects
to the Magistrate Judge application of a “highly deferential”
standard of review to the Kentucky Court of Appeals ruling on
deficient performance of trial counsel because the state court’s
ruling was “contrary to” clearly established federal law under §
2254.
Thus, he argues, a de novo review was appropriate as
taught in Magana v. Hofbauer, 263 F.3d 542, 551 (6th Cir. 2001)
(citing Williams v. Taylor, 529 U.S. 362, 396-98 (2000)).
I
agree, however, with the Magistrate Judge that the ruling was
not “contrary to” clearly established law even if it was less
than artfully stated in the state appellate court’s opinion and,
thus, the inquiry was into whether there was an “unreasonable
application” of the law.
The Magistrate Judge, it follows,
applied the proper, “highly deferential” standard of review.
The statutory authority of federal courts to issue habeas
corpus relief for persons in state custody is provided by 28
U.S.C. § 2254, as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110
Stat. 1214 (Apr. 24, 1996). Section 2254(d) applies to Gowans’
Petition
because
the
issues
surrounding
his
mitigation
claim
were adjudicated on the merits in state-court proceedings. The
text of § 2254(d) states:
An application for a writ of habeas corpus
on behalf of a person in custody pursuant to
the judgment of a State court 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
in
the
State
court
proceeding.
28 U.S.C. § 2254(d). “This is a difficult to meet . . . and
highly deferential standard for evaluating state-court rulings,
which demands that state-court decisions be given the benefit of
the doubt[.]” Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388,
1398 (2011) (quoting Harrington v. Richter, __ U.S. __, 131 S.
Ct. 770, 786 (2011) and Woodford v. Visciotti, 537 U.S. 19, 24
(2002)
(per
Petitioner
curiam))
must
show
(internal
that
the
quotation
state
marks
court’s
omitted)).
ruling
was
“so
lacking in justification that there was an error well understood
and
comprehended
in
existing
law
beyond
any
possibility
for
fairminded disagreement.” Harrington, 131 S. Ct. at 788-87. The
petitioner carries the burden of proof. Id. at 785-86 .
“The ‘contrary to’ and ‘unreasonable application’ clauses
have independent meaning.” Williams, 529 U.S. at 405. A federal
habeas court may issue the writ under the ‘contrary to’ clause
if the state court applies a rule that contradicts the governing
law set forth by the Supreme Court, or if it decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Id.
“Avoiding these pitfalls does not
require citation of [Supreme Court] cases—indeed it does even
require
awareness
of
[these]
cases,
so
long
as
neither
the
reasoning nor the result of the state-court decision contradicts
them.” Early v. Packer, 537 U.S. 3, 8 (2002).
The
court
may
grant
relief
under
the
“unreasonable
application” clause if the state court correctly identifies the
governing legal principle but unreasonably applies it to the
facts of the particular case.
Williams, 529 U.S. at 409-10.
“[F]or a federal court to find a state court’s application of
[Supreme
Court]
precedent
unreasonable,
the
state
court’s
decision must have been more than incorrect or erroneous. The
state
court’s
application
must
have
been
‘objectively
unreasonable.’” Wiggins v. Smith, 539 U.S. 510, 520-21 (2003)
(citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003) and Williams,
529
U.S.
at
409).
Thus,
the
Supreme
Court
stresses
that
an
“unreasonable application is different from an incorrect one.”
Bell v. Cone, 535 U.S. 685, 694 (2002) (citing Williams, 529
U.S. at 409-410).
The
merits
of
Gowans’
ineffective
assistance
of
counsel
claim are governed by the Supreme Court’s holding in Strickland
v.
Washington,
466
U.S.
668
(1984).
To
prevail
on
his
ineffective assistance of counsel claim, Gowans had to show (1)
that trial counsel’s performance was deficient and (2) that the
deficient performance prejudiced the defense.
U.S. at 687.
Strickland, 466
The first prong of the Strickland test requires
showing that “counsel’s representation fell below an objective
standard of reasonableness.” Strickland, 466 U.S. at 688. In
applying the Strickland test, “[j]udicial scrutiny of counsel’s
performance must be highly deferential[,]” and “a court must
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance[.]” Id. at
689.
Petitioner argues that the Court of Appeals opinion merely
recited
the
testimony
of
the
trial
counsel
regarding
his
mitigation strategy before concluding that, “[u]nder the first
part
of
the
Strickland
test,
pertaining
to
whether
trial
counsel’s performance was deficient, the strategic decisions of
counsel are not the basis of relief under RCr 11.42,” Gowans,
2010 WL 985233 at *5. Petitioner contends that this conclusion
is a “rule” insofar as it purports to forbid analysis of the
trial counsel’s strategic decisions and that it is therefore
contrary to the clearly established law in Strickland. It is
true that the fact that a decision was “strategic” does not end
foreclose inquiry into its reasonableness.
at
690-91
(the
mere
fact
a
counsel’s
Strickland, 466 U.S.
conduct
was
based
on
strategy does not foreclose a finding that counsel acted in a
constitutionally ineffective manner); see, e.g., Sears v. Upton,
__ U.S. __, 130 S. Ct. 3259, 3265 (2010); Wiggins, 539 U.S. at
533-35; Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000) (“[t]he
relevant
question
is
not
whether
counsel’s
choices
were
strategic, but whether they were reasonable.”). This is not,
however, what happened in this case, and Petitioner’s objection
is not well taken.
The Magistrate Judge found that the Court of Appeals, in
reaching
its
decision,
decision-making
process
discussed
and
the
considered
specifics
the
of
counsel’s
reasonableness
of
counsel’s conduct prior to determining that it would not second
guess his strategic decisions [DE # 23 at 4].
the
Court
investigation
of
Appeals
and
discussed
decision-making
counsel’s
before
Indeed, because
penalty
reaching
phase
its
conclusion, the Court of Appeals did not foreclose a finding
that
counsel
acted
in
a
constitutionally
ineffective
manner
simply because he engaged in strategic decision making at that
stage of the trial. Nor does the state court’s failure to employ
Strickland’s
formulary
“reasonableness”
language
during
its
analysis suggest that it did. Rather, in evaluating conclusion
was reached by the state appellate court, this Court looks to
the fair import of the state appellate court’s opinion.
See
Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (noting that
compliance
with
requirement
that
reviewing
court
consider
allegedly coercive supplemental jury charge under the totality
of the circumstances did not demand the formulary statement that
trial
court’s
actions
and
inactions
were
noncoercive
“individually and cumulatively”, rather, it sufficed that it was
the fair import of the reviewing court’s opinion)).
First, the state appellate court noted that Gowans’ trial
attorney
held
a
general
trial
philosophy
that
mitigation
evidence in the penalty phase can do more harm than good. In
light
of
the
circumstances,
counsel’s
philosophy
apparently
applied to the instant case. According to the court, counsel
recalled
that
possible
“good
character”
mitigation
evidence
involved Gowans’ work with his church and community service.
Counsel testified that his trial strategy during the guilt phase
had been to portray the victim to the jury as the “bad guy” who
had terrorized Gowans. Gowans, 2010 WL 985233 at *5. Counsel’s
strategy produced what could be considered a favorable verdict
considering that Gowans’ history with the victim was not one-
sided.
Trial
witnesses
counsel
would
was
the
allow
fearful
that
Commonwealth
calling
to
mitigation
present
evidence
involving Gowans’ prior bad acts, which included kicking in a
door while armed and looking for the victim and putting a gun to
a person’s head. Trial counsel did not want to talk about that
“any more than necessary.” Id. The court noted that “[w]hile
Gowans argues that this evidence had already been introduced in
the
guilt
phase,
trial
counsel’s
statement
[was]
not
inconsistent with Gowans’ position.” Id.
Second,
the
court
emphasized
that
counsel’s
testimony
“distinguishes this case from one in which trial counsel relied
only on personal trial philosophy when deciding not to call
mitigation witnesses.” Id. Counsel testified that the mitigation
evidence Gowans presented was basic character evidence such as
church
attendance
concedes
that
and
counsel
community
briefly
service.
asked
him
Moreover,
about
his
Gowans
community
service but recommended that they should “keep everything on the
down low” and not call any mitigation witnesses.
It was not
unreasonable for the court to conclude that counsel’s decisions
were
consistent
with
reasonable
trial
strategy
based
on
investigation under Strickland.
Certainly, the Kentucky Court of Appeals stated that “the
strategic decisions of counsel were not the basis of relief
under Ky. Cr. R. 11.42.” Gowans v. Commonwealth, 2010 WL 985233,
at *4-5 (citing Parrish v. Commonwealth, 272 S.W.3d 161 (Ky.
2008); Sanders v. Commonwealth, 89 S.W.3d 380 (Ky. 2002); Harper
v. Commonwealth, 978 S.W.2d 311 (Ky. 1998)). However, it was the
import of the state appellate court’s conclusion that counsel’s
decisions were “reasonable” under Strickland because they were
consistent with trial strategy based on investigation under the
circumstances.
Id. at *5.
Specifically, the state appellate
court’s reasoning stemmed from the fact that, as recognized by
the
trial
court
in
the
proceeding
under
Ky.
Cr.
R.
11.42,
counsel made a conscious choice not to investigate further or
present mitigation evidence concerning Gowan’s perceived “good
acts”
because
examine
the
of
the
witness
risk
that
concerning
the
government
prior
bad
would
conduct
and
crossfelony
convictions.
Petitioner failed to overcome the presumption that trial
counsel’s decision not to present mitigation evidence during the
penalty
state
phase
court
might
of
be
considered
appeals’
sound
application
of
trial
strategy.
Strickland
and
The
its
determination that counsel’s decision not to present mitigation
evidence constituted sound trial strategy is not “contrary to”
Strickland and its progeny. See Strickland, 466 U.S. at 690-91
(“[S]trategic choices made after thorough investigation of law
and
facts
relevant
unchallengeable;
and
to
plausible
strategic
choices
options
made
are
after
virtually
less
than
complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations
on investigation”). It follows that the Magistrate Judge was
correct in applying the highly deferential standard required by
§ 2254.
B. Decision That Counsel’s Conduct Was Reasonable Did Not
Involve An Unreasonable Application of Strickland.
Petitioner
also
objects
to
the
Magistrate
Judge’s
conclusion that the Kentucky Court of Appeals decision on the
first
prong
unreasonable
of
the
Strickland
application
of
analysis
clearly
did
not
established
involve
federal
an
law.
Specifically, Petitioner argues that trial counsel’s decision
not to further investigate and/or call mitigating witnesses was
both contrary to and an unreasonable application of Strickland
and its progeny. We find, however, that it is at least arguable
that
a
reasonable
attorney
could
decide
to
forgo
further
investigation and presentation of mitigation evidence under the
circumstances
presented
in
this
case.
Consequently,
we
agree
with the Magistrate Judge’s conclusion.
The
pivotal
question
is
whether
the
state
court’s
application of Strickland was unreasonable. Harrington, __ U.S.
__, 131 S. Ct. 770, 785 (2011) (explaining that § 2254 requires
that a habeas court do more than conduct a de novo review to
find a Strickland violation; a habeas court has to determine
what arguments supported, or could have supported, the state
court’s decision and then ask whether it is possible fairminded
jurists
could
disagree
that
those
arguments
are
inconsistent
with Supreme Court precedent). “A state court must be granted a
deference and latitude that are not in operation when the case
involves
review
under
the
Strickland
standard
itself.”
Id.
(holding that even a strong case for habeas relief does not mean
the state court’s contrary conclusion was unreasonable).
Counsel did not call mitigation witnesses because he was
concerned
that
the
Government
would
cross-examine
mitigation
witnesses about Gowans’ prior bad acts toward the victim and his
drug
felonies,
thus
undermining
the
jury’s
apparently
good
impression of Gowans when compared with the victim. Considering
the potentially damaging evidence of Gowans’ bad acts, it would
have been altogether reasonable for the Court of Appeals to
conclude
that
this
concern
justified
the
course
that
trial
counsel pursued. Gowans argues that this “counter” evidence of
his bad acts with which trial counsel was primarily concerned
had
already
been
heard
by
the
jury
at
length,
but
Gowans
concedes that trial counsel had successfully kept evidence of
his prior drug felony conviction from the jury. Further, it is
conceivable that evidence of bad acts not presented to the jury
earlier could be extracted from the witnesses during penalty
phase cross-examinations.
Trial counsel testified that it was
his experience was that mitigation evidence does little good,
and, that once the jury found guilt on the lesser charge, the
sentence was a foregone conclusion. Gowans, 2010 WL 985233 at
*4. After receiving what could be considered favorable verdict
on the facts and in light of the possible verdicts, it was not
unreasonable
for
counsel
to
want
the
jury
to
quickly
enter
sentencing deliberations while still perceiving the victim as
the bad guy when compared with Petitioner.
Gowans argues that reasoned professional judgment does not
support a strategy of not interviewing mitigation witnesses in
preparation for trial while simultaneously waiting to decide on
whether to present the mitigation witnesses until after the jury
returned its verdict, yet this is not the strategy that counsel
employed. Counsel does not contend that his strategy was to
decide whether to present mitigation evidence after the jury
returned its verdict, and the Court of Appeals did not base its
decision on that belief. The court merely inferred that trial
counsel’s strategies had been generally effective because Gowans
received a favorable verdict.
Had he been convicted for murder, Gowans argues that trial
counsel would have had only minutes prior to the penalty phase
during which to prepare mitigation evidence. While Gowans is
correct, it was still reasonable for counsel to conclude that he
would not present any mitigation evidence during the penalty
phase – even if his client was convicted of murder – because the
risk of adverse evidence was too great. Harrington, 131 S. Ct.
at 790 (there is a strong presumption that counsel’s attention
to
minimizing
the
impact
of
defendants’
bad
acts
to
the
exclusion of presenting evidence of his good character during
the
penalty
phase
reflects
trial
tactics
rather
than
sheer
neglect); see also Strickland, 466 U.S. at 689 (“it is all too
easy
for
proved
a
court,
unsuccessful,
examining
to
counsel’s
conclude
that
defense
a
after
particular
it
has
act
or
omission of counsel was unreasonable”).
Finally, counsel testified that he discussed the pros and
cons of presenting mitigation evidence with Gowans and explained
that if Gowans had asked him to call mitigating witnesses, he
would have done so. This information supports the state court of
appeals’
conclusion
that
counsel’s
decision
not
to
continue
investigation of potential mitigation evidence was reasonable.
See Strickland, 466 U.S. at 691 (“when a defendant gives counsel
reason to believe that pursuing certain investigations would be
fruitless or even harmful, counsel’s failure to pursue those
investigations may not later be challenged as unreasonable”).
For the foregoing reasons, I concur with the Magistrate
Judge
that,
counsel
because
satisfied
there
are
“reasonable
Strickland’s
argument[s]
deferential
that
standard,”
Harrington, 131 S. Ct. at 788, the Kentucky Court of Appeals
decision did not involve an unreasonable application of clearly
established federal law.
C. Determination That Defendant Was
Counsel’s Conduct Was Reasonable
Finally,
Petitioner
conclusion
that
prejudice
prong
contests
the
evidence’s
“purely
the
of
state
impact
unreasonable
state
court
Strickland
court’s
upon
speculative”
objects
and
application
a
clearly
this
on
mitigation
sentencing
ruling
established
the
Petitioner
positive
decision
By
Judge’s
regarding
reasonable.
that
that
Prejudiced
Magistrate
determination
ruling
avers
the
was
jury’s
of
to
Not
involves
federal
is
an
law
under § 2254(d)(1).
To establish prejudice, the Petitioner must show “there is
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Id.
When
assessing
prejudice,
the
court
must
weigh
any
aggravating evidence against the available mitigation evidence.
Wiggins, 539 U.S. at 535.
“The likelihood of a different result
must be substantial, not just conceivable.” Harrington, 131 S.
Ct. at 792-93 (citing Wong v. Belmontes, __ U.S. __, 130 S. Ct.
383, 390 (2009); Strickland, 466 U.S. at 693).
I agree with the Magistrate Judge that Petitioner failed to
show a reasonable probability that the result of the proceeding
would
have
been
different
had
mitigation
evidence
been
presented. Gowans admitted that he shot and killed the victim.
The jury was initially unable to reach a verdict and did so only
after inquiry by the trial court. Gowans’ counsel argued for the
minimum during the penalty phase, and the Commonwealth admitted
that Gowans’ lack of a lengthy violent record indicated that he
was “not the guy who should get the maximum.” Regardless, the
jury deliberated for less than five minutes before recommending
the maximum twenty year period. Based on this information, the
Court of Appeals concluded that the effect of the mitigation
evidence proposed by Gowans was “purely speculative” and that
the likelihood of a different outcome was not substantial.
Gowans avers that had the jury heard evidence of his good
character,
they
would
not
have
returned
with
the
maximum
sentence. When considering the effect of this evidence of good
character, the Court must also consider the evidence that would
have been presented by the Government had counsel introduced
mitigation witnesses. Wong v. Belmontes, 558 U.S. __, 130 S. Ct.
383,
389
(2009)
presentation
of
(per
certain
curiam)
(taking
mitigating
into
evidence
account
may
expose
that
the
petitioner to further aggravating evidence). As discussed, there
is
a
risk
that
cross-examination
of
the
proposed
witnesses,
particularly Gowans’ wife, would have revealed evidence about
Gowans’ prior incarceration and felony convictions to the jury
for the first time. Additionally, while the jury had previously
heard about Gowans’ other bad acts, it is conceivable that the
Commonwealth could diminish the effect of Gowans’ good character
evidence by rehashing adverse evidence once again. Further, the
fact that the jury deliberated for only five minutes before
returning the maximum sentence suggests that the jury would not
have been swayed by the basic good character evidence available.
For the foregoing reasons, I agree with the Magistrate Judge
that the effect of the mitigation evidence Gowans proposes is
purely speculative. While the likelihood of a different result
is
conceivable,
circumstances.
it
is
not
Consequently,
substantial
we
conclude
in
light
that
it
of
the
was
not
unreasonable for the Kentucky Court of Appeals to find that
Gowans did not establish that there was a reasonable probability
that the outcome of the proceeding would have been different
even had counsel presented the mitigation evidence.
III. No Certificate of Appealability to Issue
“A certificate of appealability may issue . . . only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). In order for a
certificate
to
issue,
Petitioner
must
be
able
to
show
that
reasonable jurists could find in his favor, and the “question is
the debatability of the underlying federal constitutional claim,
not the resolution of that debate.” Miller-El v. Cockrell, 537
U.S. 322, 342 (2003).
In
this
case,
reasonable
jurists
would
not
debate
the
denial of Petitioner’s § 2254 motion or conclude that the issues
presented
are
adequate
to
deserve
encouragement
to
proceed
further. See id. Accordingly, we adopt the Magistrate Judge’s
recommendation that a certificate of appealability be denied.
IV.
Conclusion
For
all
of
the
foregoing
reasons,
the
objections
of
Petitioner are overruled, and the Report and Recommendation of
the Magistrate Judge will be accepted and adopted as the Court’s
own.
Accordingly, IT IS ORDERED:
(1)
that the Report and Recommendation of the Magistrate
Judge [DE # 18] is ACCEPTED and ADOPTED as the Court’s own;
(2)
that Gowans’ Petition for Writ of Habeas Corpus [DE #
1] shall be DENIED;
(3)
that no certificate of appealability shall issue from
this Court.
This the 13th day of August, 2012.
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