Garr v. Taylor
MEMORANDUM OPINION AND ORDER: 1. The 12 Report and Recommendation of MJ Edward B. Atkins is ADOPTED IN FULL and INCORPORATED by reference. 2. Mario Garr's petition for Habeas Corpus is DENIED and this matter is DISMISSED from the Court's docket. Signed by Judge Danny C. Reeves on 10/15/2014. (lc)cc: COR, petitioner via us mail Modified text on 10/15/2014 (lc).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CLARK TAYLOR, Warden,
Civil Action No. 5: 14-144-DCR-EBA
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In 2010, Mario Garr pleaded guilty to two counts of first degree trafficking of a
controlled substance and one count of being a first degree persistent felony offender.
[Record No. 1] He was sentenced to a total of 120 months of incarceration.1 [Id.] After
unsuccessfully appealing in Kentucky state court, Garr petitions this Court for collateral
relief under 28 U.S.C. § 2254. [Id.] As grounds for relief, Garr claims that his conviction
lacked sufficient evidence and that his guilty plea was the result of ineffective assistance of
counsel. [Id. p. 5] Garr alleges that his attorney: (i) failed to properly investigate and present
an adequate defense; (ii) failed to advise Garr of his ineligibility for probation; and (iii)
impermissibly represented a confidential informant in violation of his fiduciary duties to
Consistent with local practice, Garr’s petition was presented to a United States
Magistrate Judge for initial review and issuance of a report in accordance with 28 U.S.C. §
Garr received 60 months on the first count of trafficking, enhanced to 120 months by the persistent felony
offender conviction, and another 60 months on the second count of trafficking to run concurrently with the first.
[Record No. 1]
636(b)(1)(B). On September 25, 2014, United States Magistrate Judge Edward B. Atkins
recommended that the petition be denied.
[Record No. 12]
Magistrate Judge Atkins
concluded that a number of Petitioner’s claims were not presented to Kentucky’s highest
courts and, therefore, were not exhausted. [Id.] Additionally, resolution of the remaining
claims did not involve an unreasonable application by the state courts of clearly-established
federal law. [Id.]
While district courts must make a de novo determination of those portions of the
Magistrate Judge’s recommendations to which an objection is made, “[i]t does not appear
that Congress intended to require district court review of a magistrate’s factual or legal
conclusions, under a de novo or any other standard, when neither party objects to those
findings.” Thomas v. Arn, 474 U.S. 140, 150 (1985). Moreover, a party who fails to file
objections to a Magistrate Judge’s proposed findings of fact and recommendation waives the
right to appeal. See United States v. Branch, 537 F.3d 582, 587 (6th Cir. 2008); Wright v.
Holbrook, 794 F.2d 1152, 1154-55 (6th Cir. 1986). Here, Garr has failed to file timely
objections to the Magistrate Judge’s Report. However, after examining the record and
having reviewed the matter de novo, the Court agrees with the Magistrate Judge’s
recommendations concerning the issues raised in Garr’s § 2254 petition.
Procedurally Barred Claims
A state prisoner procedurally defaults on a claim under § 2254 by failing to raise it in
state court or through the state’s ordinary appellate review procedure.
Boerckel, 526 U.S. 838, 847 (1999); Williams v. Anderson, 460 F.3d 789,806 (6th Cir. 2006).
Where state court remedies are no longer available to the petitioner, procedural default bars
federal habeas review. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); Williams, 460
F.3d at 806. A prisoner will not be permitted 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). A petitioner who is unable to show cause and prejudice may obtain habeas
review only if denying such review would produce a fundamental miscarriage of justice,
such as when new evidence suggests actual innocence. Dretke v. Haley, 541 U.S. 386, 393
Garr claims that insufficient evidence existed to support his plea and conviction.
[Record No. 1] Additionally, he claims that his attorney failed to advise him of potential
defenses “and to properly pursue the most reasonable and clear defenses actually available.”
[Id. p. ] These claims were not raised in the state court proceedings and Garr is now barred
from raising them under Kentucky law. Ky. R. Crim. P. 11.42(3) (all possible grounds must
be presented in the initial motion to vacate or relief will be barred). Moreover, Garr did not
seek discretionary review with the Kentucky Supreme Court following the Kentucky Court
of Appeals decision. His time to do so has now expired.
Accordingly these claims are
procedurally defaulted. Because the Petitioner has neither shown cause to excuse his failure
to present the claims in state court nor established actual prejudice resulting from the alleged
errors, these grounds are not subject to review before this Court.
Garr’s remaining claims for ineffective assistance of counsel allege that his attorney
failed to advise him of his ineligibility for probation and breached counsel’s duty to Garr by
representing a confidential informant. [Record No. 1, p. 5] According to Garr, his counsel
“conspired to induce [him] to except [sic] a plea offer and avoid trial” to avoid presenting a
defense of entrapment. [Id. p. 8] The Kentucky Court of Appeals considered Garr’s claims
of ineffective assistance of counsel but found that both lacked merit. [Record No. 1-1, p. 26]
For these claims to survive, Garr must “show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 689 (1984). However, the state court addressed and
accurately described the Strickland standard and properly allocated the burden to the
Petitioner in disposing of his ineffective assistance of counsel claims. [Record No. 1-1, p.
28] The Kentucky Court of Appeals reasonably concluded that Garr had not established
deficient performance or prejudice. [Id. p. 26] And this Court agrees. The appropriate
analysis is accurately set forth in the Magistrate Judge’s report at pages seven through
twelve. [Record No. 12]
Certificate of Appealability
A Certificate of Appealability may be issued only where the petitioner has made a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a
court’s denial of the requested relief is based on the merits, “[t]he petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 437, 484 (2000).
However, when a court’s denial is based on a procedural ruling, the movant must show that
reasonable jurists “would find it debatable whether the motion states a valid claim of the
denial of a constitutional right” and debatable “whether the court was correct in its
procedural ruling.” Id. In the present case, Garr has not made a substantial showing of a
denial of a constitutional right. Likewise, he has not demonstrated that the procedural issues
he seeks to raise are debatable among reasonable jurists or that the questions are adequate to
deserve encouragement to proceed further. Therefore, a Certificate of Appealability will not
In summary, the record reflects that the state courts correctly rejected Garr’s claims of
ineffective assistance of counsel. Further, the Petitioner’s claims which were not brought to
the state courts are procedurally defaulted. Accordingly, it is hereby
ORDERED as follows:
The Report and Recommendation of United States Magistrate Judge Edward
B. Atkins [Record No. 10] is ADOPTED IN FULL and INCORPORATED by reference.
Mario Garr’s Petition for Habeas Corpus Relief under 28 U.S. C. § 2554
[Record No. 1] is DENIED and this matter is DISMISSED from the Court’s docket.
This 15th day of October, 2014.
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