Glover v. Bottom

Filing 22

OPINION & ORDER 17 REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by John T. Glover : 1) the petition for a writ of habeas corpus (DE 4 ) is DENIED with prejudice; 2) the magistrate judges recommended disposition is ADOPTED as the Courts opinion; and 3) the petitioners objections (DE 20) are OVERRULED. Signed by Judge Karen K. Caldwell on 1/16/19.(SYD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION -- LONDON
JOHN T. GLOVER,

CIVIL ACTION
NO. 6:16-CV-282-KKC

Petitioner,
V.

OPINION AND ORDER

DON BOTTOM,
Warden.

This matter is before the Court on the petitioner John T. Glover’s petition for habeas
corpus relief under 28 U.S.C. §2254 (DE 4). After a jury trial, Glover was convicted in state court
of murder, first-degree robbery, and first-degree arson. The court sentenced him to life in prison
without the possibility of parole for 25 years.
In his petition for habeas relief, Glover asserted five constitutional violations in the statecourt action (DE 4, Petition at 26-52.)

The magistrate judge reviewed the petition and

recommends (DE 17) that the Court dismiss the petition with prejudice and that the Court deny
a certificate of appealability. Glover has filed objections (DE 20).
Glover objects to the magistrate judge’s recommendation with regard to only his first and
third grounds for relief. (DE 20, Objections at 1.) Both claims involve the testimony of Clifford
Taylor, Glover’s friend who testified against him at trial but later recanted his testimony.
With his first claim, Glover asserts that the prosecution’s presentation of Taylor’s testimony
at trial – which he argues was perjurious —violated his due process rights. For his third claim
for relief, Glover asserts that the manner by which the Kentucky courts adjudicated the
significance of Taylor’s recantation violated his due process rights.
As to the first claim, the magistrate judge determined there was no federal constitutional
right to a trial without perjury. In his first objection to the magistrate judge’s recommendation,

Glover asserts that there is such a right. (DE 20, Objections at 5-8.) The Court need not address
this objection because the magistrate judge went on to find that, even if such a right existed,
Glover had not made the showing necessary to disturb the state court’s factual finding that
Taylor did not commit perjury and that his recantation was not credible. Glover does not object
to the magistrate judge’s finding that this Court has no grounds to disturb this factual finding.
Glover’s second objection involves his third claim for habeas relief: that the state court
violated his due process rights in the way it evaluated the significance of Taylor’s recantation.
Glover argues that, in determining whether he was entitled to a new trial, the state court should
have evaluated “whether the result of the trial probably [would have been] different had the
jury been told at trial of Taylor’s recantation.” (DE 20, Objections at 10-11.) He argues the state
court’s failure to address that issue violated his due process rights.
In support of this argument, Glover cites Kentucky law holding that “[i]n order for newly
discovered evidence to support a motion for new trial it must be ‘of such decisive value or force
that it would, with reasonable certainty, have changed the verdict or that it would probably
change the result if a new trial should be granted.’” Com. v. Harris, 250 S.W.3d 637, 640–41
(Ky. 2008) (quoting Jennings v. Commonwealth, 380 S.W.2d 284, 285–86 (Ky.1964)). Glover
argues that by failing to evaluate, as Harris instructs, whether there is a reasonable certainty
Taylor’s recantation would have changed the verdict at trial or would probably change the
verdict if a new trial should be granted, the Kentucky courts violated his federal due process
rights.
The Supreme Court has stated repeatedly, however, that “federal habeas corpus relief does
not lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 68 (1991) (quoting Lewis v. Jeffers,
497 U.S. 764, 780 (1990). “In conducting habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws, or treaties of the United States.” Id. Thus,
even if the Kentucky courts violated Harris in their evaluation of the Taylor recantation, that
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alone would not entitle Glover to habeas relief. Instead, Glover must establish that the
Kentucky courts violated his federal due process rights.
Citing Evitts v. Lucey, 469 U.S. 387 (1985), Glover argues that, when the Kentucky Supreme
Court establishes a standard like it did in Harris, then it is a violation of federal due process
rights when Kentucky courts fail to follow that standard. This is not correct. Such a failure on
its own is simply a violation of state law.
In Evitts, the Supreme Court determined that, “[e]ven if a State has no constitutional
obligation to grant criminal defendants a right to appeal, when it does establish appellate courts,
the procedures employed by those courts must satisfy the Due Process Clause.” Ohio Adult
Parole Auth. v. Woodard, 523 U.S. 272, 292 (1998); Evitts, 469 U.S. at 400-01. “Similarly, if a
State establishes postconviction proceedings, these proceedings must comport with due
process.” Ohio Adult Parole Auth., 523 U.S. at 293.
Glover does not, however, attack Kentucky’s postconviction procedures. He does not argue
that those procedures do not comport with due process. Instead, he argues that the Kentucky
courts failed to follow Kentucky common law in evaluating Taylor’s recantation. The Court
cannot grant habeas relief for any such failure.
Finally, in his objections, Glover argues that the magistrate judge applied the incorrect
standard to his claim that the Kentucky Court of Appeals violated his constitutional rights when
it determined that Taylor’s recantation did not merit a new trial. The magistrate judge analyzed
the claim under §2254(d), which prohibits the Court from granting habeas relief on any claim
“that was adjudicated on the merits in State court proceedings unless the adjudication of the
claim . . . 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.”
28 U.S.C. §2254(d)(1) (emphasis added). Glover argues that the magistrate judge should have
reviewed the claim de novo because the state court did not decide on the merits his claim that
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he was entitled to a new trial. “It is well settled that we may review de novo an exhausted federal
claim that was not adjudicated on the merits in state court.” Rice v. White, 660 F.3d 242, 252
(6th Cir. 2011). See also Hill v. Mitchell, 400 F.3d 308, 320 (6th Cir. 2005) (“Because the state
court did not reach the merits of this federal claim, we review the claim de novo.”) This applies,
for example, where a state court did not address a claim on the merits because it found the claim
to be procedurally improper.
There is no question here that the Kentucky state courts did address and deny on the merits
Glover’s claim that Taylor’s recantation entitled him to a new trial. Glover first raised the claim
in a post-conviction motion under Kentucky Rule of Criminal Procedure 60.02. In that motion,
Glover submitted an affidavit from Taylor recanting his trial testimony. Taylor stated in the
affidavit that he had committed the crimes all on his own and that that Glover was not involved.
Taylor further stated that he testified against Glover at trial only because the state prosecutor
threatened him with the death penalty if he did not do so.
The trial court denied the Rule 60.02 motion without a hearing, finding Taylor’s recantation
was not credible. See Glover v. Commonwealth, No. 2014-CA-000989-MR, 2016 WL 1178639, at
*1 (Ky. Ct. App. Mar. 25, 2016). On appeal, the Kentucky Supreme Court remanded the matter
to the trial court with directions to conduct an evidentiary hearing. Id. After conducting a
hearing, the trial court again denied the motion. On appeal, the Kentucky Court of Appeals
again remanded the matter to the trial court, finding that the trial court erred by allowing the
state prosecutor to participate in the hearing as both counsel and witness. On remand, the
parties agreed that conducting another evidentiary hearing was not necessary. Id. at *3. But
they did present oral arguments in front of a new judge, who found that Taylor’s recantation
was not sufficiently reliable to overturn the jury’s verdict. Id.
The Kentucky Court of Appeals affirmed that decision, noting that “Kentucky law has long
disfavored recanted testimony and placed little credence upon it.” Id. Under Kentucky law,
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“[a]ffidavits in which witnesses recant their testimony are quite naturally regarded with great
distrust and usually given very little weight.” Id. (quoting Hensley v. Com., 488 S.W.2d 338, 339
(Ky.1972)).
This is an adjudication on the merits.
Finally, Glover argues that the magistrate judge erred in denying him a certificate of
appealability. The Court may issue such a certificate only where the petitioner makes a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). That showing
requires that the petitioner demonstrate that “reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong.” Miller–El v. Cockrell, 537 U.S. 322,
338 (2003). Glover provides the Court with no authority that would permit it to make this
finding.
For all these reasons, the Court hereby ORDERS as follows:
1) the petition for a writ of habeas corpus (DE 4) is DENIED with prejudice;
2) the magistrate judge’s recommended disposition is ADOPTED as the Court’s opinion;
and
3) the petitioner’s objections (DE 20) are OVERRULED.
Dated January 16, 2019.

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