Lawson v. Smith

Filing 26

MEMORANDUM OPINION & ORDER: For the reasons stated here, IT IS ORDERED as follows: (1) Lawson's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 [DE 1 ] is DISMISSED WITH PREJUDICE; (2) Lawson's request for an evidentia ry hearing is DENIED; (3) Lawson's request for a certificate of appealability is DENIED; (4) Judgment is entered in favor of Respondent; (5) The Clerk SHALL STRIKE THIS MATTER FROM THE ACTIVE DOCKET. Signed by Judge Joseph M. Hood on 07/26/2018.(KJA)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
LESLIE LAWSON,
Petitioner,
v.
AARON SMITH, WARDEN,
KENTUCKY STATE REFORMATORY,
Respondent.

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Civil Case No.
6:15-cv-038-JMH-CJS
MEMORANDUM OPINION & ORDER

***
A state prisoner seeking a Writ of Habeas Corpus in federal
court faces a tall task.
potentially fatal obstacles.
procedural rules.

At every turn, road blocks present
He must not have run afoul of state

He must have exhausted all possible avenues of

relief in state court.

He must have brought his claim within the

time allowed. And if the state court already considered his claim,
the petitioner must show the state court’s decision was contrary
to or an unreasonable application of federal law as established by
Supreme Court holdings.
to relief.

Any misstep along the way closes the road

He must run the entire gauntlet.

Congress and courts have erected these barriers to ensure
that federal courts issue the writ only when the most serious
constitutional errors infect a prisoner’s case.

This is because,

in our system, state courts are plenty capable of hearing and
deciding federal constitutional claims.
1 

See Burt v. Titlow, 571

U.S. 12, 19 (2013).

Error correction is best left to state-level

appeals, not federal habeas review. See Woods v. Donald, 135 S.Ct.
1372, 1375 (2015) (per curiam).
Petitioner

Leslie

Lawson

argues

that

this

errors requiring federal-court intervention.

case

involves

Lawson claims that

he received ineffective assistance of trial counsel in violation
of the Sixth Amendment.
Corpus.

[DE 1].

So he filed a Petition for Writ of Habeas

The state responded [DE 7], Lawson replied [DE

11], the magistrate judge recommended dismissing the petition [DE
19], and Lawson filed objections [DE 24].

A review of the record

shows that during the nearly 20 years Lawson has spent litigating
this case, he has encountered the types of hurdles that often
preclude habeas relief.

He attempts to clear them but fails.

And

for the reasons stated herein his Petition for Writ of Habeas
Corpus is DENIED and DISMISSED WITH PREJUDICE.
I.

Background
Harold Brown and Leslie Lawson spent June 15, 1998 with their

girlfriends at a lake before heading home.
same

day,

Robert

Jenkins’s

home

[DE 7-1, p. 95].

burned

down.

After

That
an

investigation, the Kentucky State Police determined Lawson and
Brown were responsible.

Lawson was indicted [Id. at p. 1], tried,

convicted, [Id. at p. 2], and sentenced.

[Id. at p. 3].

it was all done in violation of the Constitution.

2 

He claims

Lawson made his case to the Kentucky courts.
appeal, then on collateral attack.
claims.

First on direct

The state courts rejected his

So he comes to this Court on habeas corpus.

petition,

Lawson

makes

six

claims—each

of

which

ineffective assistance of trial counsel (“IATC”).

And in his
center
[DE 1].

on
To

fully analyze his claims, the Court must first consider what
happened at trial.
During the investigation, Jenkins told the Kentucky State
Police that he suspected Lawson and Brown were responsible for the
crime.

The fire damaged one room of the home; it also caused smoke

and water damage throughout the residence.

[DE 7-1, p. 95].

Lawson faced charges of arson, burglary, and persistent felony
offender.

The state tried Brown and Lawson together during a

three-day trial in March 1999.

[Id. at p. 2].

At trial, Lois Lyon, Jenkins’s neighbor, testified the she
witnessed an older model four-door gray Oldsmobile in Jenkins’s
driveway on the day of the fire.

[DE 1-1, p. 5].

Lyon also

testified that she saw a woman, Barbara Flannelly behind the wheel
and saw Flannelly’s uncle get into car.

[Id.].

Lyon testified

that a short time later, she heard firecrackers explode, noticed
smoke coming from Jenkins’s home, and called 911.

[Id.].

KSP

officers later found the vehicle at the home of Brown’s mother.
[Id.].

3 

Flannelly,

Brown’s

former

girlfriend,

and

Karen

Jones,

Lawson’s former girlfriend, testified at trial for the government.
[DE 7-1, p. 95].

The women testified that the two couples had

gone on a trip to a lake and, on the way back, Lawson spotted
Jenkins’s truck.

[Id.].

“There that SOB is.

The women testified that Lawson said:

Let’s get him while he ain’t home.”

[Id.].

Jenkins, who had worked as a police informant, had been referred
to as a “rat,” according to testimony at trial.

[Id. at 96].

Flannelly testified that she dropped Lawson and Brown off in
Jenkins’s neighborhood while driving back from the lake.

[Id.].

Lawson instructed Flannelly to drive to Jenkins’s house to verify
that Jenkins was not home before returning to pick up Brown and
Lawson.

[Id].

Jones and Flannelly testified that before dropping

off the suspects, Lawson told Brown, “let’s hoodoo that punk.”
[Id.].

No one answered when the women rang Jenkins’s doorbell, so

they revved the car’s engine to signal to Brown and Lawson that
the home was empty.

[Id.].

Both women testified that they then

met up with Flannelly’s uncle and went to grab a bite to eat.
[Id.].

When they returned, they heard firecrackers and saw smoke

coming from Jenkins’s home.

[Id.].

Jones and Flannelly also testified that after the fire they
saw Brown and Lawson with an air rifle, and a leather case that
contained a wrench.

[Id.; DE 1-1, p. 5].

Jenkins testified that

they were his items and that he had seen them on the morning of
4 

the fire.

[DE 7-1, pp. 96–97].

An arson investigator testified

that someone intentionally used a lighter or match to ignite the
blaze with some type of combustible material, such as newspapers
or magazines.
Lawson’s

[Id. at p. 97].
counsel

argued

that

the

Commonwealth

failed

to

satisfy the burden of proof because the “fire could have started
by accident because no witness nor any physical evidence placed
them inside the Jenkins home.”

[Id. at p. 95].

and convicted Lawson on all counts.

The jury disagreed

[Id. at p. 2].

Because he

had several prior felony convictions, Lawson was sentenced to a
total of 80 years in prison.

[Id. at p. 3].

Lawson filed a direct appeal, and the Kentucky Supreme Court
affirmed the conviction and sentence.
53 S.W.3d 534 (Ky. 2001).

See Lawson v. Commonwealth,

In that appeal, Lawson made the

following claims relevant here: the trial erred by (1) giving
Lawson and Brown nine peremptory challenges (every party agrees
that defendants were entitled to two more peremptory challenges
for a total of 11); (2) failing to grant a directed verdict because
the Commonwealth had no direct physical evidence showing that Brown
or Lawson entered the Jenkins home and started the fire; (3)
admitting hearsay evidence related to Lawson’s character and prior
bad acts.

5 

On the peremptory challenges, the state Supreme Court ruled
that “neither Appellant properly preserved this issue for our
review”

because

neither

“objected

to

the

trial

court’s

determination of the number of challenges authorized by RCr 9.40.”
Lawson, 53 S.W.3d at 545.

As to the directed verdict, the court

found that “circumstantial evidence is sufficient to support a
criminal

conviction”

and

“the

jury

could

reasonably

infer

Appellants’ guilt on the basis for the evidence presented by the
Commonwealth.”

Id. at 548.

And on the character evidence, the

court ruled that Lawson’s counsel had failed to object to the
testimony at trial and thus failed to preserve the issue for
appeal.

In addition, the court did “not find a substantial

possibility

that

the

exclusion

resulted in a different verdict.”

of

this

testimony

would

have

Lawson, 53 S.W.3d at 549.

Four

months later, the Supreme Court rejected Lawson’s request for a
rehearing.

[DE 7-1, p. 161].

Lawson then filed a pro se Motion to Vacate, Set Aside, or
Correct Sentence in state court under Rule 11.42 of the Kentucky
Rules of Criminal Procedure.

[DE 1-2].

In that Motion, filed in

August 2002, Lawson first claimed that he received ineffective
assistance of trial counsel (“IATC”).
First, Lawson argued that his counsel provided ineffective
assistance in failing to object to the trial court’s misallocation

6 

of only nine peremptory challenges.

[DE 1-2, p. 5].

Next, Lawson

argued counsel erred by failing to object when, during voir dire,
a juror stated that he knew Lawson because the juror worked at the
detention center.

[Id.]

Lawson contended that counsel should

have moved for a mistrial because the comment tainted the entire
jury pool.

Third, Lawson argued counsel should have objected to

character and prior bad act evidence.

[Id. at p. 6].

Lawson then

argued that counsel failed to call various witnesses for the
defense who could have provided impeachment or alibi evidence at
the time for the fire. [Id. at pp. 6, 37–42].

Fifth, Lawson

claimed counsel failed to present mitigating evidence.
43–46].

[Id. at p.

On that issue, Lawson argued that witness Tony Griffith

had seen Darrell Blevins outside the Jenkins home shortly before
the fire (Lawson argues Blevins conspired with Jenkins to burn
down the home for insurance money).

Lawson requested that counsel

show Griffith a picture of Blevins while Griffith testified and
ask him whether he recognized the man in the picture.
Counsel did not do so.

Lawson also argued that counsel failed to

impeach Barbara Flannelly.
contended

that

the

[Id. at pp. 46–51].

cumulative

ineffective assistance.

[Id.].

effect

of

the

Lawson finally
errors

led

to

[Id. at p. 55].

The Laurel Circuit Court did not hold an evidentiary hearing
or appoint counsel before overruling Lawson’s motion.
162–77].

The state court of appeals affirmed on all issues except
7 

[DE 7-1, p.

the preemptory challenges. [DE 1-5]. The appellate court remanded
the case to the trial court to hold an evidentiary hearing on
possible prejudice that occurred at trial. The state Supreme Court
denied the Commonwealth’s petition for discretionary review. [DE
7-1, p. 389].

Lawson did not seek discretionary review on any

part of the court of appeals’ ruling.
On remand, the Laurel Circuit Court held an evidentiary
hearing in October 2010.
postconviction counsel.

It is here where Lawson first secured
The hearing dealt solely with peremptory

strikes since Lawson did not seek review of his remaining claims.
During the hearing, Lawson identified two jurors he would have
struck (Jurors 44 and 47).

One juror was not “forthcoming with

her answers” and Lawson sensed bad vibes.

[DE 1-6, pp. 4–5].

Lawson further claimed the two jurors were “gathering together.”
The circuit court again denied relief, and the court of appeals
again reversed. [DE 1-6; DE 1-7]. The appellate court ruled that,
under state law, prejudice is presumed when a defendant is forced
to

exhaust

peremptory

misallocation.

[DE

challenges
1-7,

p.

8].

based
The

on

a

state

trial
again

court’s
sought

discretionary review from the Kentucky Supreme Court, and the court
heard the appeal.
The Supreme Court reversed the court of appeals in June 2014,
holding that automatic reversal for misallocation of peremptory

8 

strikes is inapplicable on collateral review. [DE 1-8]. The court
further found that Lawson failed to satisfy his IATC claim under
Strickland v. Washington, 466 U.S. 668 (1984) because Lawson did
not demonstrate prejudice.

[Id. at pp. 5–7].

Three months later,

the state Supreme Court denied Lawson’s petition for rehearing.
[DE 1-9].
Lawson then filed the current Petition for a Writ of Habeas
Corpus under 28 U.S.C. § 2254, arguing that the following errors
gave rise to IATC claims:
(1) trial counsel’s failure to object to the admission
of highly prejudicial hearsay, irrelevant testimony and
KRE 404 evidence. [DE 1, p. 24];
(2) trial counsel failed to investigate and present
alibi witnesses, and the Kentucky Court of Appeals’
ruling to the contrary is an unreasonable application of
Strickland. [Id. at 33];
(3) trial counsel failed to investigate and present
reasonable evidence of an alternative perpetrator, and
the Kentucky Court of Appeals’ ruling to the contrary is
an unreasonable application of Strickland. [Id. at 38];
(4) trial counsel’s failure to object to the trial
court’s erroneous allocation of too few peremptory
strikes, and the Kentucky Supreme Court’s decision to
the contrary was both contrary to, and an unreasonable
application of Strickland. [Id. at 42];
(5) trial counsel’s failure to both impeach Flannelly’s
and Jones’s testimony, and to argue the impossibility of
their testimony. [Id. at 58];
6) the cumulative effect of trial
constitutes IATC. [Id. at 60].

9 

counsel’s

errors

The state filed a response [DE 7], to which Lawson replied.
[DE 11].

The magistrate judge issued a report and recommendation

on March 7, 2018 in which she recommended that this Court deny and
dismiss Lawson’s petition, deny a certificate of appealability and
enter judgment in favor of respondent.
filed

objections

to

the

[DE 19, p. 48].

magistrate

judge’s

disposition, making this matter ripe for review.
II.

Lawson

recommended

[DE 24].

Standard of Review

Under Federal Rule of Civil Procedure 72, a party may object
to

and

seek

review

recommendation.

of

a

magistrate

judge’s

See Fed. R. Civ. P. 72(b)(2).

report

and

“A judge of the

court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(c).
stated with specificity.

Any objections must be

Thomas v. Arn, 474 U.S. 140, 151 (1985).

“An ‘objection’ that does nothing more than state a disagreement
with a magistrate’s suggested resolution, or simply summarizes
what has been presented before, is not an ‘objection’ as that term
is used in this context.”
937–38

(E.D.

Mich.

VanDiver v. Martin, 304 F.Supp.2d 934,

2004).

“[V]ague,

general

or

conclusory

objections . . . [are] tantamount to complete failure to object.”
Cole v. Yukins, 7 F. App’x 354, 356 (6th Cir. 2001).
III. Analysis

10 

A. Claim I: Failure to object to hearsay and character evidence.
In his first claim, Lawson argues that his trial counsel was
ineffective for failing to object to “highly prejudicial hearsay,
irrelevant testimony and KRE 404 evidence.”
Specifically,

Lawson

argues

testimony was improper.

that

much

of

[DE 1, p. 24].
Detective

Riley’s

The magistrate judge rejected Lawson’s

argument on three grounds: (1) Lawson had procedurally defaulted;
(2) the claim failed § 2254(d) review; and (3) the claim failed
under de novo review.

Lawson objects to each of the magistrate

judge’s determinations.
(i)

We begin with procedural default.

Procedural Default

Procedural

default

exists

to

“ensure

that

state-court

judgments are accorded the finality and respect necessary to
preserve the integrity of legal proceedings within our system of
federalism.”

Martinez v. Ryan, 566 U.S. 1, 9 (2012).

Procedural

default bars a petitioner’s claims when:
(1) the petitioner fails to comply with a state
procedural rule; (2) the state courts enforce the rule;
(3) the state procedural rule is an adequate and
independent state ground for denying review of a federal
constitutional claim; and (4) the petitioner cannot show
cause and prejudice excusing the default.
Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010) (en
banc).
In most situations, then, procedural default occurs when a
state rejects a petitioner’s claim because he failed to comply
with state procedural rules.
11 

But procedural default can also bar claims that the petitioner
failed to exhaust on state collateral review.

See O’Sullivan v.

Boerckel, 526 U.S. 838, 848 (1999).

Exhaustion is itself a

distinct limit on federal habeas review.

See 28 U.S.C. § 2254(b).

Under the exhaustion doctrine, a prisoner must first go through
all available remedies in state courts before coming to federal
court. See id. Procedural default, then, typically does not apply
unless a petitioner first exhausts his state remedies; otherwise
§ 2254(b) would bar the petition.

But situations arise when a

prisoner did not exhaust his state-court options, yet he can no
longer pursue them.

This occurs when, for example, a petitioner

on collateral review does not appeal a trial court’s decision.
In O’Sullivan v. Boerckel, the Supreme Court grappled with
the interplay between § 2254(b) and procedural default and noted
that petitioners could circumvent the exhaustion requirement by
not presenting their arguments to the state court on collateral
review.

526 U.S. 838 (1999).

By doing so, prisoners could keep

arguments in their back pocket for federal de novo review.

See

id. at 847–48. Sensing the problem, the O’Sullivan Court ruled
that when a petitioner does not present his claims on state
collateral review, he has not properly exhausted those claims, and
thus he has procedurally defaulted.

See id. at 848.

“[W]hen a

petitioner fails to present a claim in state court, but that remedy
is no longer available to him, the claim is technically exhausted,
12 

yet procedurally defaulted.”

Atkins v. Holloway, 792 F.3d 654,

657 (6th Cir. 2015); Woolbright v. Crews, 791 F.3d 628, 631 (6th
Cir. 2015) (“When a petitioner failed to fairly present his claims
to the state courts and no state remedy remains, his claims are
considered to be procedurally defaulted.”); Jones v. Bagley, 696
F.3d 475, 483–84 (6th Cir. 2012).

This includes when a petitioner

declines to seek discretionary review to the state’s highest court.
O’Sullivan, 526 U.S. at 848.
Here,

Lawson

presented

Claim

I

appellate courts on collateral review.

to

the

state

trial

and

But Lawson never sought

discretionary review from the Kentucky Supreme Court.

And when a

petitioner does not present a claim to the state’s highest court—
even

when

that

court

has

discretionary

review

prisoner has not properly exhausted his claim.
U.S. at 846–48.

authority—the

O’Sullivan, 526

Like the petitioner in O’Sullivan, Lawson did not

properly exhaust these arguments to the state Supreme Court; he
thus procedurally defaulted.

See id.

But this does not end the analysis. A petitioner can overcome
procedural default when he establishes “cause and prejudice” to
excuse his error.

See Murray v. Carrier, 477 U.S. 478, 496 (1986);

Woolbright v. Crews, 791 F.3d 628, 631 (6th Cir. 2015).

Lawson

objects to the magistrate judge’s ruling that he failed to overcome
his procedural default.

We start, then, with “cause.”

13 

(a)

Cause

In general, because “’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.’” Woolbright, 791
F.3d at 631 (alterations in original) (quoting Coleman v. Thompson,
501 U.S. 711, 756–57 (1991)).

The Supreme Court modified this

general rule in 2012 when it first announced the “Martinez-Trevino”
exception.

See Martinez v. Ryan, 566 U.S. 1 (2012); Trevino v.

Thaler, 569 U.S. 413 (2013).

In Martinez, the Court held that

when “under state law, claims of ineffective assistance of trial
counsel must be raised in an initial-review collateral proceeding,
a procedural default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance at trial if,
in the initial-review collateral proceeding, there was no counsel
or counsel in that proceeding was ineffective.” 566 U.S. at 17.
In Trevino, the Supreme Court expanded this exception to situations
where a state’s procedural system makes it “virtually impossible”
for a defendant to bring an ineffective-assistance claim on direct
appeal, even if state law does not actually prohibit the claim.
569 U.S. at 417.

14 

Kentucky’s collateral scheme fits into the Martinez-Trevino
doctrine.

See Woolbright, 791 F. 3d at 636.

But the magistrate

judge found that Lawson did not meet Martinez-Trevino because it
“does not apply to lack of counsel at proceedings other than the
initial collateral review proceeding.”

[DE 19, p. 21].

And

because Martinez-Trevino “does not excuse counsel’s failures at
the appellate level,” Lawson is not entitled to relief.
This Court agrees with the magistrate judge.

[Id.].
Martinez-

Trevino applies to claims defaulted at the initial collateral
proceeding but not beyond it.

See Martinez, 566 U.S. at 16.

The

doctrine does not extend to “any proceeding beyond the first
occasion

the

State

allows

a

prisoner

ineffective assistance at trial.”

to

raise

a

claim

of

Id.; see West v. Carpenter, 790

F.3d 693, 699 (6th Cir. 2015); Wallace v. Sexton 570 F. App’x 443,
453 (6th Cir. 2014)(“Ineffective assistance of counsel at this
stage of the case cannot constitute cause to excuse the procedural
default

because

proceeding.”).

it

is

not

an

initial-review

collateral

Thus, failure to raise a claim at the appellate

state post-conviction proceeding does not implicate

Martinez-

Trevino. Martinez-Trevino is necessary only because, without it,
no state court would ever hear IATC claims. See West, 790 F.3d at
697. But once the claim is presented to a state court on collateral
review, the concern no longer exists.

15 

Lawson’s

default

occurred

when

he

failed

discretionary review to the state Supreme Court.
526 U.S. at 846–48.

to

seek

See O’Sullivan,

But Lawson did raise Claim I in his initial

proceeding; he listed it as “Argument C” in his original state
petition.

[DE 1-2, pp 5–6].

There, Lawson claimed he was

“deprived of effective assistance of counsel when counsel failed
to make objection to reference of movant character and prior bad
act’s that Det. Riley, Karen Jones, and Barbara Flannelly testified
to.”

[Id.].

Lawson

supplemental filing.

then

added

additional

[DE 1-3, p. 1].

arguments

in

a

And during state collateral

proceedings, both the trial court and appellate court ruled on
that specific argument.

[DE 1-4, p. 7; 1-5, p. 6].

The trial

court held that “much of the testimony to which Mr. Lawson refers
goes directly to his possible motive for having committed the
crimes herein—that being revenge for information supplied to law
enforcement officers by the victim, and it appears to be certainly
relevant and admissible.”

[DE 1-4, p. 7].

It is at this point that Martinez-Trevino’s application falls
away. Thus, Lawson cannot establish “cause” to cure his procedural
default, and this Court cannot consider this claim.
For these same reasons, the Court finds that Lawson also
procedurally defaulted on the following claims: Claim II (failure
to

call

alibi

witnesses),

Claim

16 

III

(failure

to

adequately

investigate and present evidence of an alternative perpetrator),
and Claim VI (cumulative effect of errors).

Lawson presented each

of these claims on state collateral review but never to the state’s
highest court.

[DE 1-2, p. 4–5, 42–43; DE 1-3, p. 14; DE 1-5].

This constitutes procedural default.

O’Sullivan, 526 U.S. at 848.

Indeed, Lawson does not object to the magistrate judge’s
findings that Claims II and III were procedurally defaulted.
24].

[DE

As to Claim VI (cumulative error), Lawson objects and argues

that it “was never presented to the state court as the result of
the denial of counsel at the initial filing stage.”
9].

But it was.

[DE 24, p.

Lawson listed as “Argument No. I” the “Cumulative

Effect of the Errors” in his initial filing.

[DE 1-2, p. 55].

There he argued “that the cumulative effect of the errors and
grounds for relief above and the prejudice caused as a result
deprived movant of a Fair Trial and Fair Sentence in violation of
movant’s constitutional rights pursuant to the Fifth, Sixth, and
Fourteenth Amendments of the U.S. Constitution.”

[Id. pp. 55–56].

And

that

on

initial

review

the

state

court

held

“[n]othing

presented to the Court in the Defendant’s RCr 11.42 Motion or the
Supplement

has

convinced

this

Court

that

his

counsel’s

representation fell below an objective standard of reasonableness
under prevailing professional norms.”
included

his

cumulative-error

[DE 1-4, p. 15].

argument

in

his

original

Lawson
state

proceedings, but he never asked the state Supreme Court to weigh
17 

in.

Thus, he procedurally defaulted, and Martinez-Trevino does

not cure the default.
The magistrate judge also found that these claims failed under
§ 2254(d) review and de novo review.

[DE 19, pp. 22–27].

This

Court need not delve into those arguments because the case can be
decided on procedural-default grounds.

See Shelton v. McQuiggin,

651 F. App’x 311, 313 (6th Cir. 2016).

And because he has

procedurally defaulted, Lawson fails to establish relief on these
claims.
B. Remaining Claims: Claim IV and Claim V
Lawson’s remaining arguments center on (1) counsel’s failure
to object to the improper allocation of peremptory challenges
(Claim

IV),

and

(2)

counsel’s

failure

to

impeach

Jones

and

Flannelly (Claim V).
We start with Claim V. But first, a clarification.
magistrate

judge

found

that

Lawson’s

“claim

related

to

The
Gary

Flannelly was properly raised,” in his RCr 11.42 motion and thus
it was procedurally defaulted because it never came to the state
Supreme Court.

[DE 19, pp. 40–41].

But as Lawson points out,

Claim V does not involve Gary Flannelly; it involves Barbara
Flannelly.

[DE 24, p. 7].

18 

And Lawson never presented his Barbara Flannelly argument to
the state courts.

That constitutes procedural default.

See

Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (ruling a
“petitioner may procedurally default a claim by failing to raise
a claim in state court, and pursue that claim through the state’s
‘ordinary appellate review procedures.’”).

But because Lawson

defaulted Claim V at his initial collateral proceeding, MartinezTrevino applies.
Cir 2015).

See Atkins v. Holloway, 792 F.3d 654, 658 (6th

Yet a lack of counsel at the initial collateral review

is only one of several steps Lawson must take to excuse procedural
default.

See id.

The Martinez-Trevino exception is step one.

It

does not, by itself, establish cause—Lawson must also, at step
two, demonstrate that he “has a substantial claim of IATC.”
two questions “determine whether there is cause.”
F.3d at 660.

These

Atkins, 792

The third question is whether Lawson suffered

prejudice. See id.

If he meets these three steps, the Court will

consider the merits of his claim.

See Atkins, 792 F.3d at 660;

Woolbright, 791 F.3d at 637; Sutton, 745 F.3d 795–96.
As mentioned, Lawson meets step one because he was without
counsel at the initial collateral proceeding.
applies.

But

to

establish

that

his

So Martinez-Trevino

underlying

ineffective

assistance claim is “substantial,” Lawson must show that the claim
“has some merit.”

Martinez, 566 U.S. at 14.

The Supreme Court

has not clarified what constitutes a “substantial” IAC claim.
19 

Nor

has the Sixth Circuit.

In Martinez, the Supreme Court cited

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) in defining a
“substantial claim.” Martinez, 566 U.S. at 14. Cockrell discusses
the standard for issuing a certificate of appealability, which
suggested that the Supreme Court equated that standard with a
“substantial” claim.

See Martinez v. Schriro, No. CV 08-785-PHX-

JAT, 2012 WL 5936566, at *2 n.2 (D. Ariz. Nov. 27, 2012) (ruling
on remand that the “substantial” standard is the same as the one
used for issuing a certificate of appealability).

But the Sixth

Circuit has rejected this approach, ruling that the certificate of
appealability standard was not coterminous with the “substantial”
IATC standard.

Atkins, 792 F.3d at 660.

The Circuit and Supreme

Court have not otherwise expanded on what a “substantial” IAC claim
is.

See Martinez, 566 U.S. at 21 n.2 (Scalia, J., dissenting)

(noting a lack of clarity in what constitutes a “substantial”
claim).
In any event, the Court need not decide whether Lawson’s IATC
claim

is

procedural

substantial
default

here
also

because
requires,

the

framework

as

a

for

curing

prerequisite,

determination of whether Lawson suffered prejudice.

a

This is the

upshot of the relationship between procedural default and IATC
claims on habeas review: Because we ask whether petitioner suffered
“prejudice” from his default, the Court must decide whether the
underlying IATC claim passes merits review.
20 

After all, if the

underlying IATC claim is bunk, then the petitioner did not suffer
prejudice.

There is no way around it: Before reaching the merits,

the Court must first examine the merits. In Martinez, the district
court on remand recognized that “the reality is that this Court
must evaluate trial counsel’s performance to evaluate any of the
three showings Petitioner must make.”
at *2.

Martinez, 2012 WL 5936566,

Thus, because a merits evaluation is embedded in the

“prejudice” prong, the Court will consider the underlying claim.
(i)
An

Ineffective Assistance of Trial Counsel
ineffective

Strickland

requires

assistance
that

a

of

counsel

prisoner

show

claim
(1)

under

that

his

“counsel’s performance was deficient measured by reference to
“an objective standard of reasonableness’” and (2) resulting
prejudice,

which

exists

where

‘there

is

a

reasonable

probability that, but for counsel’s unprofessional errors,
the result of the proceedings would have been different.’”
United States v. Coleman, 835 F.3d 606, 612 (6th Cir. 2016)
(quoting Strickland v. Washington, 466 U.S. 668, 688, 694
(1984)).
“To establish deficient performance, a petitioner must
demonstrate that counsel’s representation ‘fell below an
objective standard of reasonableness.’”

Wiggins v. Smith,

539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at
21 

688)).

Courts

have

“declined

to

articulate

specific

guidelines for appropriate attorney conduct and instead have
emphasized that ‘[t]he proper measure of attorney performance
remains simply reasonableness under prevailing professional
norms.’”

Id.

(quoting

Strickland,

(alterations in Wiggins).

466

U.S.

at

688)

Still, a court’s review of this

prong includes a “strong presumption that counsel’s conduct
falls

within

the

wide

range

of

reasonable

professional

assistance.” Strickland, 466 U.S. at 689. Petitioner carries
the burden of establishing that “’counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed

the

defendant

by

the

Sixth

Amendment.’”

Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting
Strickland, 466 U.S. at 687).
Prejudice results from a deficient performance when
“counsel’s errors were so serious as to deprive the defendant
of

a

fair

trial,

a

trial

Strickland, 466 U.S. at 687.

whose

result

is

reliable.”

“It is not enough ‘to show that

the errors had some conceivable effect on the outcome of the
proceeding.’”

Harrington,

562

U.S.

at

104

(quoting

Strickland, 466 U.S. at 693).
Meeting “Strickland’s high bar is never an easy task.”
Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

22 

The standard

“must be applied with scrupulous care, lest ‘intrusive posttrial inquiry’ threaten the integrity of the very adversary
process the right to counsel is meant to serve.”
562 U.S. at 105.

Harrington,

“Even under de novo review, the standard

for judging counsel’s representation is a most deferential
one” because “[u]nlike a later reviewing court, the attorney
observed the relevant proceedings, knew of materials outside
the record, and interacted with the client, with opposing
counsel, and with the judge.” Id.
In Claim V, Lawson contends that trial counsel was
ineffective because she “not only failed to impeach Flannelly
and Jones while they were testifying for the Commonwealth,
but more importantly failed to demonstrate the impossibility
of their story for the jury during closing argument.”
p. 58].

[DE 1,

Lawson admits that “counsel cross-examined Flannelly

and questioned her about the plea deal she received in
exchange for testifying at trial.”

[Id. at p. 59].

Counsel

also questioned Flannelly “regarding her testimony as to
picking up Gary, what Gary looked like, and her various
statements to police and how they had changed.”

[Id.].

Lawson also admits counsel cross-examined Jones and asked
questions that “were similar to those posed to Flannelly,
except that trial counsel questioned Jones at greater length
about the events of June 15, 1998.”
23 

[Id.].

But Lawson claims that trial counsel was ineffective
because she never questioned Jones or Flannelly “about how it
was possible to see Jenkins’ truck parked at his brother’s
house that day if Jenkins never made it to his brother’s
house.”

[Id.].

Lawson argues that this was an error because

Jenkins testified that he never went to his brother’s house
on the day of the fire.

[Id. at pp. 58–59].

But Jones and

Flannelly testified that “the events of that day all began
because

Leslie

saw

Jenkins’

house.”

[Id. at p. 59].

truck

at

Jenkins’

brother’s

And Lawson argues that if “Jenkins

was never at his brother’s house on June 15, 1998, the girls’
story and credibility unravels quickly.”

[Id.].

Lawson further argues that his counsel failed at closing
arguments.

He contends that “counsel did nothing more than

remind the jury that there was no one who could conclusively
establish that Leslie or Harold burglarized or set fire to
the

Jenkins

home

and

portray

perpetrators of the crimes.”

the

girls

as

the

[Id. at pp. 59–60].

real
Lawson

also claims that during closing, counsel “told the jury that
the girls knew Jenkins was not home because they had seen him
earlier that day,” and this “evidences [counsel’s] complete
failure to review the testimony presented during trial to
make her argument to the jury.”
argument

boils

down

to

[Id. at p. 60]. Lawson’s
this:

24 

counsel

provided

constitutionally deficient representation by failing to point
out that Jenkins’s testimony (that he had been home all day)
was inconsistent with what Jones and Flannelly had testified
to—that Lawson “initiated the drive to Jenkins’s home upon
seeing Jenkins’s vehicle parked outside another house early
that morning.”

[DE 19, p. 42].

The magistrate judge disagreed, and so does this Court.
The magistrate judge determined that “[e]ven under de
novo review . . . Lawson has failed to establish that habeas
relief is warranted.”

[DE 19, p. 41].

The magistrate judge

found that trial counsel effectively cross-examined both
witnesses at trial and obtained significant admissions from
both.

[Id.].

For example, as the magistrate judge pointed

out, Jones admitted that she had a prior record, that Lawson
never told her that he had started a fire, and that she did
not know when Lawson received Jenkins’s wrench and BB gun.
[Id.].

Flannelly also admitted to having a criminal record,

that she received a plea agreement in exchange for her
testimony, and that she never saw either defendant break into
the home.

[Id. at pp. 41–42].

Flannelly further stated the

she previously gave three different, inconsistent statements
to police during the investigation.

25 

[Id., at p. 42].

In addition, the magistrate judge noted that, during
closing argument, Lawson’s counsel: (1) pointed out that no
witness saw anyone start the fire, (2) “reiterate[ed] that
Jones

and

Flannelly,

the

only

individuals

to

place

the

defendants at the scene of the crime, had motive to testify
against the defendants as they were facing multiple years of
jail time for unrelated crimes,” and (3) emphasized that the
prosecution had not met its burden of proof.
To the pages of analysis that the magistrate judge
devoted to reviewing this claim, Lawson makes no objections.
[DE 24].

Lawson’s only objection as to Claim V is the

magistrate judge’s finding that
apply.

[Id. at p. 8].

Martinez-Trevino

did not

But Lawson does not put forward any

objection regarding the magistrate judge’s extensive de novo
review.

And Lawson is required to file specific objections.

See Cole v. Yukins, 7 F. App’x 354, 356 (6th Cir. 2001).

He

failed to do so.
Nonetheless,
judge’s

the

determination

Strickland.
performance

Court

agrees

that

Lawson’s

with

the

claim

magistrate

fails

under

First, Lawson did not show that his counsel’s
fell

“below

an

objective

standard

of

reasonableness.” Wiggins, 539 U.S. at 521. As the magistrate
judge determined, cross examination proved profitable: Both

26 

Jones

and

Flannelly

made

significant

concessions.

That

counsel did not ask every possible question that might have
yielded favorable testimony does not render her performance
deficient.

The error must be “so serious that counsel was

not functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment.’”
particularly

true

Harrington, 562 U.S. at 104.

given

the

“strong

This is

presumption

that

counsel’s conduct falls within the wide range of reasonable
professional

assistance.”

Strickland,

466

U.S.

at

689.

Lawson has failed to come anywhere close to overcoming this
strong presumption.
Second, Lawson cannot satisfy the prejudice prong of
Strickland.

The only reference to any prejudice is the

statement that “there is a reasonable probability that the
jury would have had a reasonable doubt as to Leslie’s guilt
and the outcome of the trial would have been different.”

[DE

1, p. 60].

But “[i]t is not enough ‘to show that the errors

had

conceivable

some

proceeding.’”

effect

Harrington,

Strickland, 466 U.S. at 693).

on

562

the
U.S.

outcome
at

104

of

the

(quoting

“[T]he question is not whether

. . . it is possible a reasonable doubt might have been
established if counsel acted differently.”

Id. at 111.

“The

likelihood of a different result must be substantial, not
just conceivable.”

Id.

Nothing Lawson presents supports the
27 

inference that the odds of a different results are substantial
had his counsel pointed out the inconsistencies.
Because Lawson’s claim fails both prongs of Strickland,
it cannot provide the basis for “prejudice” to cure his
procedural default.
(ii) Claim IV: Peremptory Challenges
In Claim IV, we find the first—and only—claim that is
not

subject

to

any

procedural-default

analysis.

Lawson

litigated this claim all the way to the Kentucky Supreme
Court.

In addition, Lawson agrees that the state courts made

a ruling on the merits, thus triggering § 2254(d) review.
[DE 1, p. 44].
Lawson’s counsel failed to object to the trial court’s
“erroneous allocation of too few peremptory strikes.”
at p. 42].

[Id.

The trial court gave Lawson nine peremptory

strikes, but Kentucky law entitled him to eleven strikes.
See RCr 9.40; Springer v. Commonwealth, 998 S.W.2d 439 (1999).
On

direct

review,

the

Kentucky

Supreme

Court

rejected

Lawson’s argument because it had not been properly preserved.
See Lawson v. Commonwealth, 53 S.W.3d 534, 545 (Ky. 2001).
On collateral review, Lawson argued his counsel’s failure to
object constituted ineffective assistance.

[DE 1-2].

The

trial court rejected his claim without holding an evidentiary
28 

hearing.

[DE 1-4].

5, p. 5].

The court of appeals reversed.

[DE 1-

The Kentucky Supreme Court declined discretionary

review, and the case went back to the trial court.
On

remand,

the

Laurel

Lawson’s RCr 11.42 Motion.
of appeals reversed.

Circuit

[DE 1-6].

[DE 1-7].

Court

again

denied

And again, the court

This time, however, the

Kentucky Supreme Court granted review, reversed the court of
appeals and denied Lawson’s RCr 11.42 Motion.

[DE 1-8].

Lawson then filed the present petition for a writ of habeas
corpus.

[DE 1].

The Kentucky Supreme Court based its decision on three
grounds: (1) the court of appeals improperly applied Shane v.
Commonwealth, 243 S.W.3d 336 (Ky. 2007), (2) the court of
appeals’ opinion improperly made a per se reversal rule, and
(3) Lawson failed to establish the prejudice prong under
Strickland.

[DE 1-8].

Here, we are concerned only with

court’s application of Strickland.
But this Court will not engage in a straightforward
Strickland

analysis;

§

2254(d)

Harrington, 562 U.S. at 105.

requires

more.

See

Lawson must show that the state

court’s opinion “resulted in a decision that was contrary to,
or

involved

an

unreasonable

application

29 

of,

clearly

established Federal law, as determined by the Supreme Court
of the United States.”

28 U.S.C. § 2254(d)(1).

“Under the ‘contrary to’ clause, a federal habeas court
may grant the writ if the state court arrives at a conclusion
opposite to that reached by [the Supreme Court] on a question
of law or if the state court decides a case differently than
this Court has on a set of materially indistinguishable
facts.”

Williams v. Taylor, 529 U.S. 362, 412–13 (2000)

(O’Connor, J., opinion of the Court for Part II).

This

“statutory phrase refers to the holdings, as opposed to the
dicta of [the Supreme Court’s] decisions.”
“Under

the

‘unreasonable

application’

Id. at 412.

clause,

a

federal

habeas court may grant the writ if the state court identifies
the

correct

governing

legal

principle

from

[the

Supreme

Court’s] decisions but unreasonably applies that principle to
the facts of the prisoner’s case.”

Id. at 413.

Petitioners bear the burden of establishing a right to
relief.

See Garner v. Mitchell, 557 F.3d 257, 261 (6th Cir.

2009).

The standard is “difficult to meet . . . because it

was meant to be.”

Harrington, 562 U.S. at 102.

“[E]ven a

strong case for relief does not mean the state court’s
contrary

conclusion

was

unreasonable.”

Id.

at

102.

“[F]ederal judges are required to afford state courts due

30 

respect by overturning their decisions only when there could
be no reasonable dispute that they were wrong.”

Woods v.

Donald, 135 S.Ct. 1372, 1376 (2015) (per curiam).

This is

because “the purpose of AEDPA is to ensure that federal habeas
relief functions as a guard against extreme malfunctions in
the state criminal justice systems, and not as a means of
error correction.”

Greene v. Fisher, 565 U.S. 34, 43 (2011).

Thus, a “state court’s determination that a claim lacks merit
precludes

federal

habeas

relief

so

long

as

‘fairminded

jurists could disagree’ on the correctness of the state
court’s decision.”

Harrington, 562 U.S. at 101 (quoting

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
Section 2254 presents a particularly daunting hurdle in
the

ineffective-assistance-of-counsel

context.

See

Harrington, 562 U.S. at 105. “Establishing that a state
court’s application of Strickland was unreasonable under §
2254(d) is all the more difficult” because both Strickland
and § 2254(d) are “highly deferential.”

Id.

And “when the

two apply in tandem, review is ‘doubly’” deferential.

Id.

The question for federal habeas courts in this context is
“whether

there

is

any

reasonable

argument

satisfied Strickland’s deferential standard.”
added).

counsel

Id. (emphasis

“A state court must be granted a deference and

31 

that

latitude that are not in operation when the case involves
review under the Strickland standard itself.”

Id. at 101.

In her recommended disposition, the magistrate judge
found that Lawson failed to establish that the state court’s
opinion was contrary to or an unreasonable application of
Supreme Court holdings. [DE 19, p. 40]. The magistrate judge
relied on Rivera v. Illinois, 556 U.S. 148 (2009).
p. 39].

[Id. at

In Rivera, the Illinois trial court rejected a

defendant’s use of a peremptory challenge because the court
believed he was attempting to remove a juror based on gender
or race, in violation of Batson v. Kentucky, 476 U.S. 79
(1986).

See Rivera, 556 U.S. at 153.

But that turned out to

be wrong; there was no prima facie case that the defendant
used his peremptory strike in a discriminatory fashion.
at 154–55.

Id.

Thus, the trial court denied the defendant a

peremptory challenge to which he was entitled.
admitted that he could not demonstrate prejudice.

Defendant
See id.

So he argued that the Supreme Court should find the loss of
a peremptory challenge a “structural error” that requires
automatic reversal.

Id. at 156–57.

The Supreme Court

rejected this argument: “If a defendant is tried before a
qualified jury composed of individuals not challengeable for
cause, the loss of a peremptory challenge due to a state

32 

court’s

good-faith

error

constitutional concern.”

is

not

a

matter

of

federal

Id. at 157.

Lawson objected to the magistrate judge’s discussion of
Rivera.

He argues that Rivera was on direct review, not

collateral attack, and that the trial court denied Rivera an
additional peremptory challenge; it was not his counsel’s
error that led to fewer challenges.

Lawson points out that,

unlike here, Rivera did not involve an IATC claim.

[DE 24].

Because this case involves an IATC claim on habeas review,
Lawson argues, Rivera is distinguishable.
And in the IATC context, Lawson argues, the Court must
presume

prejudice.

situated

prisoners

Otherwise,
could

never

he

points

out,

demonstrate

similarly

Strickland’s

second prong because it would require either (1) testimony of
a prospective juror who did not make the jury, but would have,
had the other jurors been struck, and also would have voted
to acquit Lawson or (2) testimony of the actual jurors as to
their

deliberations.

impractical.

The

[DE

first

1,

option

pp.

46–47].

could

not

Both
work

are

because

prospective jurors do not sit through trial and hear evidence.
Whether that person would have voted to acquit Lawson is pure
speculation.

And how would the Court identify who would have

been drawn to sit as a juror?

33 

Option two fares no better.

Kentucky law prohibits

examination of the jury as a ground for a new trial.
10.04.

RCr

Lawson cannot pry into the jury room to ask about

verdict deliberations.
In Kentucky,

automatic reversal occurs on direct review

when peremptory challenges are not properly allocated at
trial.

See Robertson v. Commonwealth, 597 S.W.2d 864, 865–

66 (Ky. 1980) (“The requirement of a showing of actual
prejudice effectively nullifies the requirements of the rule
on allocation of peremptory challenges.”) (quoting Ky. Farm.
Bureau Mut. Ins. Co. v. Cook, 590 S.W.2d 875, 877 (1979));
cf. Shane v. Commonwealth, 243 S.W.3d 336, 340–41 (Ky. 2007)
(holding that when the trial court requires defendant to use
a peremptory challenge when the prospective juror should have
bene struck for cause, reversal is required).
however,

deal

with

properly

preserved

misallocation of peremptory challenges.
S.W.2d at 66.

These cases,

objections

to

See Robertson, 597

And they confront arguments on direct review

deciding matters of state law.
The

situation

here

is

much

different.

This

Court

considers only a narrow question: whether the state court’s
ruling

that

Lawson

failed

to

establish

prejudice

under

Strickland based on his counsel’s failure to object to a

34 

misallocation of peremptory challenges constitutes a ruling
that is contrary to or an unreasonable application of federal
law as established by a holding of the Supreme Court.
U.S.C. § 2254(d).

See 28

And on that question, the answer is “no”.

Lawson argues that the state court’s ruling violated
Strickland because this case implicates a “structural error”
(as opposed to a “trial error”) for which courts can presume
prejudice.

[DE 1, pp. 48–58].

A trial error is one that

“occur[s] during the presentation of the case to the jury,
and which may therefore be quantitatively assessed in the
context of other evidence presented.”
499 U.S. 279, 307–08 (1991).

Arizona v. Fulminate,

When reviewing trial errors,

courts ask whether the mistake was harmless.

Id.

Structural

errors, however, affect the “entire conduct of the trial from
beginning to end” and taint the “framework within which the
trial proceeds, rather than simply an error in the trial
process itself.”

Id. at 310. These structural errors “defy

analysis by ‘harmless-error’ standards.” Id.
Structural-error analysis stems from the idea that “some
errors should not be deemed harmless” even when a defendant cannot
demonstrate prejudice.
1907 (2017).

Weaver v. Massachusetts, 137 S.Ct. 1899,

“The purpose of the structural error doctrine is to

ensure insistence on certain basic, constitutional guarantees that

35 

should define the framework of any criminal trial.”

Id.

The

Supreme Court recently identified three rationales for structural
errors: (1) when the “right at issue is not designed to protect
the defendant from erroneous conviction but instead protects some
other interest,” (2) when “the effects of the error are simply too
hard to measure,” and (3) when “the error always results in
fundamental fairness.”

Id. at 1908.

The first group includes the

defendant’s right to put on his own defense.

Id.

The second

occurs when it is impossible to show that an error was harmless
such as when a “defendant is denied the right to select his or her
own attorney.”

Id.

And the third results when, for example, “an

indigent defendant is denied an attorney or if the judge fails to
give a reasonable-doubt instruction.”
trial is always unfair.

Id.

In those instances,

Id.

When a defendant raises a structural error on direct review,
“a new trial generally will be granted as a matter of right.”

Id.

at 1913. And even on collateral attack “there are a few situations
in which prejudice may be presumed.”

Williams, 529 U.S. at 391.

But prejudice is not always presumed when a petitioner brings an
IATC claim on habeas review premised on a structural error, because
“finality concerns are far more pronounced” in those situations.
Weaver, 137 S.Ct. at 1913.

In Weaver, for example, the defendant

argued that the trial court erred by closing part of jury selection
to the public.

See id. at 1907.
36 

The defendant did not object at

trial but then raised an IATC claim on federal habeas review.
id.

The Supreme Court noted that the closed proceeding implicated

structural

concerns,

but

the

Court

ruled

prejudice is not shown automatically.”
the

See

burden

is

on

the

defendant

to

that

“Strickland

Id. at 1911.
show

either

a

“Instead,
reasonable

probability of a different outcome in his or her case or, as the
Court has assumed for these purposes . . . to show that the
particular public-trial violation was so serious as to render his
or her trial fundamentally unfair.”

Id.

In short, the Court found

that the high “systemic costs” of using habeas to remedy triallevel errors means courts should use a “different standard for
evaluating a structural error depending on whether it is raised on
direct review or raised instead in a claim alleging ineffective
assistance of counsel.”
structural

concerns,

Id. at 1912.

but

only

some

Errors
trigger

can
a

implicate

presumption

of

prejudice under Strickland.
This is where Lawson runs into problems.
Court

has

not

held

that

state-supplied

implicate structural concerns.

First, the Supreme

peremptory

challenges

Nor has the Court held that denial

of peremptory challenges requires a presumption of prejudice under
Strickland.

Quite the opposite.

It is true that, at one point,

the Supreme Court suggested that “[t]he denial or impairment of
the right [to peremptory challenges] is reversible error without
a showing of prejudice.”

Swain v. Alabama, 380 U.S. 202, 219
37 

(1965).

But the Court in Rivera disavowed Swain: “The mistaken

denial of a state-provided peremptory challenge does not, at least
in the circumstances we confront here, constitute an error of that
character.”

556 U.S. at 161.

Second, Lawson identifies a single Sixth Circuit case—United
States

v.

McFerron,

163

F.3d

952

(6th

Cir.

1998)—for

the

proposition that the denial of a peremptory challenge is structural
error.

But AEDPA requires Supreme Court holdings; Sixth Circuit

precedent will not do.

And in any event, McFerron, (1) predates

Rivera, and (2) dealt with peremptory challenges in the Batson
context—i.e., when the trial court improperly found that defendant
was discriminatorily using peremptory strikes.

This is far from

the case here where the trial court simply miscalculated the number
of preemptory strikes for Lawson.
Third, Lawson presents no other evidence of prejudice.

He

identifies the jurors he would have struck, but he does nothing to
demonstrate how his trial was tainted.
tried

before

a

qualified

jury

And “[i]f a defendant is

composed

of

individuals

not

challengeable for cause, the loss of a peremptory challenge due to
a state court’s good-faith error is not a matter of federal
constitutional concern.”

Rivera, 556 U.S. at 157.

This is

especially true because “a State may decline to offer [peremptory

38 

challenges] at all.”

Id.

Without a showing of prejudice, Lawson

cannot satisfy Strickland.
In sum, this Court would have to travel far afield from
current Supreme Court precedent to arrive at Lawson’s desired
destination.

That’s a journey that § 2254(d) prohibits, and it is

a road this Court leaves untaken.

The state court’s ruling was

not contrary to or an unreasonable application of federal law.
Thus, this claim fails, and Lawson is not entitled to a Writ of
Habeas Corpus.
C. Evidentiary Hearing and Certificate of Appealability
Finally,

Lawson

objects

to

the

magistrate

judge’s

recommendation to deny an evidentiary hearing and certificate of
appealability.
(i)

Evidentiary Hearing

“In deciding whether to grant an evidentiary hearing, a
federal court must consider whether such a hearing could enable an
applicant to prove the petitioner’s factual allegations, which, if
true, would entitle the applicant to federal habeas relief.”
Schriro v. Landrigan, 560 U.S. 465, 474 (2007).

When “the record

refutes the applicant’s factual allegations or otherwise precludes
habeas

relief,

a

district

evidentiary hearing.”

Id.

court

not

required

to

hold

an

As the magistrate judge found, Lawson

39 

is

has not identified any additional evidence he could present at an
evidentiary hearing.
potential

evidence

procedural default.

[DE 19, p. 47].
that

would

Lawson does not propose any

entitle

him

to

his

He has made no factual allegations that, “if

true would entitle [him] to federal habeas relief.”
U.S. at 474.

overcome

Schriro, 560

He is not entitled to an evidentiary hearing.

(ii) Certificate of Appealability
“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).

When a district

court denies a petitioner’s claims on the merits, “the petitioner
must demonstrate that reasonable jurists would find the district
court’s

assessment

of

the

constitutional

claims

debatable

wrong.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

or

“When the

district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim,
a COA should issue when the prisoner shows, at least, that jurists
of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.”

Id.

Lawson has not made a substantial showing under § 2253.
Reasonable

jurists

would

not

find
40 

the

Court’s

determination

debatable or conclude that Lawson’s petition deserves further
consideration. The Court denies Lawson’s request for a certificate
of appealability.
IV.

Conclusion

For the reasons stated here, IT IS ORDERED as follows:
(1)

Lawson’s Petition for Writ of Habeas Corpus under 28

U.S.C. § 2254 [DE 1] is DISMISSED WITH PREJUDICE;
(2)

Lawson’s request for an evidentiary hearing is DENIED;

(3)

Lawson’s request for a certificate of appealability is

DENIED;
(4)

Judgment is entered in favor of Respondent;

(5)

The Clerk SHALL STRIKE THIS MATTER FROM THE ACTIVE

DOCKET;
This the 26th day of July, 2018.

41