Woolbright v. Crews

Filing 141

MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers on 1/10/2018. Petitioner's Objections to the Magistrate Judge's Findings of Fact, Conclusions of Law, and Recommendation (DN 115 , DN 137 ) are OVERRULED. Magistrate Judge Bren nenstuhl's Findings of Fact, Conclusions of Law and Recommendation (DN 108 , DN 133 ) are ADOPTED. Petitioner's Petition for Habeas Relief (DN 1 ) is DISMISSED WITH PREJUDICE. Petitioner's Motion to Reopen and Amend Petition (DN 123 ) is DENIED. Petitioner's Motion for Judicial Notice of Adjudicative Facts (DN 138 is DENIED AS MOOT. The issuance of a certificate of appealability is DENIED. cc: Counsel; Gary R. Woolbright(JWM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:12-CV-00080-GNS

GARY R. WOOLBRIGHT

PETITIONER

v.

COOKIE CREWS, Warden

RESPONDENT

MEMORANDUM OPINION AND ORDER
The Court considers Petitioner Gary Woolbright’s Objections (DN 115, 137) to two
Reports and Recommendations (“R&R”) (DN 108, 133) issued by Magistrate Judge
Brennenstuhl regarding Petitioner’s Petition for a Writ of Habeas Corpus (DN 1) and Petitioner’s
Motion to Reopen and Amend the Petition (DN 123). In addition, Petitioner’s Motion for
Judicial Notice of Adjudicative Facts (DN 138) is pending. For the following reasons, the Court
OVERRULES Petitioner’s Objections (DN 115, DN 137), ADOPTS the Magistrate Judge’s
R&Rs (DN 108, DN 133), DENIES the Petition for Habeas Relief (DN 1), DENIES the Motion
to Reopen and Amend Petition (DN 123) and DENIES AS MOOT Petitioner’s Motion for
Judicial Notice of Adjudicative Facts (DN 138).
I.

BACKGROUND

The facts of this case have been fully recited on a number of occasions. Accordingly, the
Court will only summarize the facts necessary to adequately address Petitioner’s objections.

A.

State Proceedings

In March 2003, a jury in Barren Circuit Court convicted Petitioner of wanton murder,
receiving stolen property with intent to manufacture methamphetamine, first-degree trafficking
of a controlled substance, and first-degree possession of a controlled substance. (R&R 2, DN
108). Petitioner appealed his conviction to the Supreme Court of Kentucky, and the Supreme
Court of Kentucky affirmed. (R&R 4, DN 108).
Petitioner then sought post-conviction relief. He filed a pro se motion pursuant to
Kentucky Rule of Criminal Procedure (“RCr”) 11.42 in Barren Circuit Court, claiming that he
received ineffective assistance of trial counsel and seeking to vacate his convictions.1 (R&R 4,
DN 108). The Barren Circuit Court appointed counsel to assist him in the presentation of his
claims, but nonetheless denied them. (R&R 4, DN 108). Petitioner’s post-conviction appellate

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Petitioner raised seven claims of ineffective assistance of counsel in his RCr 11.42 motion.
(Findings of Fact, Conclusions of Law and Recommendation 5, DN 35 [R&R, DN 35]). The
First R&R characterized those claims as follows:
Claim 1: Trial counsel failed to file a motion to suppress statements [Petitioner]
made to Detective Isenberg in violation of his Miranda Rights.
Claim 2: Trial counsel failed to investigate the circumstances, elements and
applicable law pertinent to the charge of possession of stolen property (anhydrous
ammonia) with intent to manufacture methamphetamine.
Claim 3: Trial counsel failed to retain an independent medical expert.
Claim 4: Trial counsel failed to object to the trial court’s amendment of the grand
jury indictment from intentional murder to wanton murder.
Claim 5: Trial counsel failed to request a mistrial on the grounds that the jury’s
guilty verdict of wanton murder could be considered a unanimous verdict.
Claim 6: Trial counsel failed to object and request a mistrial under KRE 403
relevant to the introduction of additional firearms not used in the shooting death
of the deceased.
Claim 7: Trial counsel’s errors cumulatively prejudiced [Petitioner].
(R&R 5, DN 35).
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counsel then appealed the denial of Petitioner’s RCr 11.42 motion to the Kentucky Court of
Appeals and Kentucky Supreme Court,2 both of which affirmed. (R&R 4, DN 108).
B.

Federal Proceedings

Thereafter, Petitioner filed a petition for writ of habeas corpus in which he raised several
grounds for habeas relief, the following of which are presently relevant: Grounds 2 and 3, and
Parts 4, 6, 8, 10, 11, and 12 of Ground 1. In Grounds 2 and 3, Petitioner asserted that the Barren
Circuit Court violated his rights under the United States Constitution when it constructively
amended Count 1 of the indictment—the count which charged Petitioner with murder.3 (R&R
33-34, DN 35; R&R 1-2, DN 133). Parts 4, 6, 8, 10, 11, and 12 of Ground 1 alleged claims of
ineffective assistance of trial counsel (“IATC”). (R&R 28-29, DN 35; R&R 5, DN 108). Those
Parts allege IATC for the following reasons:
Part No. 4: Trial counsel failed to interview and call witnesses who allegedly had
information regarding the inadmissibility of drug evidence.
Part No. 6: Trial counsel failed to object and request a mistrial because of
prosecutorial misconduct.
Part No. 8: Trial counsel failed to check the serial numbers of a handgun found at
the crime scene when attempting to discern the handgun’s owner.

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On appeal, Petitioner’s post-conviction appellate counsel raised the following arguments:
Claim 1: Trial counsel failed to investigate and provide readily available
mitigation evidence to the court at sentencing.
Claim 2: Trial counsel failed to object to prejudicial evidence.
Claim 3: Trial counsel failed to retain a forensic expert.
Claim 4: Trial counsel failed to file a motion to suppress [Petitioner’s] statements
made during his initial interview with Detective Eldon Isenberg.
Claim 5: Trial counsel committed numerous errors which cumulatively constitute
an ineffective assistance of counsel claim.

(R&R 6-7, DN 35).
3
Specifically, Petitioner claimed that the Barren Circuit Court committed the alleged
constitutional violation when it instructed the jury to return a guilty verdict on the murder count
upon a finding that Petitioner committed a killing intentionally or wantonly. (R&R 2, DN 133).
3

Part No. 10: Trial counsel failed to object when the trial judge allegedly
constructively amended the indictment by instructing the jury that it could convict
Petitioner of wanton murder.
Part No. 11: Trial counsel failed to object on the ground that the jury verdict was
not unanimous.
Part No. 12: Trial counsel failed to raise a double jeopardy objection when
Petitioner was charged with both possession and trafficking of a controlled
substance.
(R&R 28-29, DN 35). In addition, with the court’s leave, Petitioner filed a supplement to his
habeas petition, further developing some of his grounds for relief. (R&R 5, DN 108).
In an R&R issued April 18, 2013, Magistrate Judge Brennenstuhl recommended that this
Court reject Petitioner’s claims, deny his Petition for Habeas Relief, and decline to grant him a
certificate of appealability (“COA”) as to all of his claims. (R&R 40, DN 35). Specifically, the
Magistrate Judge concluded that Petitioner procedurally defaulted: (1) his ineffective assistance
of counsel claims when he failed to raise them during each phase of his post-conviction
proceedings, (2) Grounds 2 and 3 because he never presented those claims to the state court.
(R&R 28, 33-34, DN 35). The Magistrate Judge also found that Petitioner had failed to show
cause and prejudice sufficient to excuse his defaults. (R&R 31-34, DN 35).
This Court then adopted the R&R in full, and, shortly thereafter, Petitioner filed a notice
of appeal. (R&R 6, DN 108). The Sixth Circuit granted Petitioner a COA on Parts 4, 6, 8, 10,
11, and 12 of Ground 1 of his habeas petition, but declined to issue a COA with respect to
Grounds 2 and 3. (R&R 6, DN 108; R&R 3-4, DN 133).
On appeal, the Sixth Circuit reversed in part and affirmed in part this Court’s order.
(R&R 4-5, DN 133). In reaching this conclusion, the Sixth Circuit noted that, under U.S.
Supreme Court precedent, a habeas petitioner’s showing of ineffective assistance of initialreview post-conviction counsel can constitute cause sufficient to excuse a procedural default in

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some instances.4 (R&R 6-10, DN 108). It then reasoned that Petitioner’s case presented such an
instance and instructed this Court to determine on remand whether ineffective assistance of
Petitioner’s initial-review post-conviction counsel excuses his procedural default of Parts 4, 6, 8,
and 12 of Ground 1. (R&R 9-10, DN 108). The Sixth Circuit also found that ineffective
assistance of Petitioner’s initial-review post-conviction counsel could not have caused his
procedural default of Parts 10 and 11 of Ground 1 because he raised those claims in his initial
RCr 11.42 motion, and, as a result, Petitioner did not procedurally default those claims until his
post-conviction appellate counsel failed to raise them on appeal. (R&R 4, DN 133). It then
noted that, pursuant U.S. Supreme Court precedent, ineffective assistance of post-conviction
appellate counsel cannot excuse a procedural default; as a result, the Sixth Circuit affirmed the
dismissal of Parts 10 and 11 of Ground 1. (R&R 4-5, DN 133).
Following an evidentiary hearing, the Magistrate Judge issued a Second R&R addressing
the question of whether Petitioner’s initial-review post-conviction counsel’s ineffective
assistance caused the procedural default of Parts 4, 6, 8, and 12 of Ground 1. (R&R 10-26, DN
108). In doing so, the Magistrate Judge found that, contrary to the Sixth Circuit’s decision,
Petitioner—through a series of pro se briefs—fairly presented Parts 8 and 12 of Ground 1 during
his initial-review post-conviction proceedings. (R&R 11, DN 108). As a result, the Magistrate
Judge concluded that ineffective assistance of initial-review post-conviction counsel could not
have caused the procedural default of those claims.5 (R&R 11-12, DN 108). Further, the
Magistrate Judge concluded that neither Part 4 nor Part 6 of Ground 1 presented a substantial
4

In its analysis, the Sixth Circuit relied on Trevino v. Thaler, 569 U.S. 413 (2013), and Martinez
v. Ryan, 566 U.S. 1 (2012).
5

In reaching this conclusion, Magistrate Judge Brennenstuhl employed the same reasoning that
the Sixth Circuit utilized when it affirmed the portion of this Court’s decision that held Petitioner
had procedurally defaulted Parts 10 and 11 of Ground 1. (R&R 11-12, DN 108).
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claim of IATC, and, therefore, ineffective assistance of Petitioner’s initial-review postconviction counsel could not excuse his default of those claims. (R&R 13-25, DN 108). Thus,
the Magistrate Judge recommended that this Court deny Parts 4, 6, 8 and 12 of Ground 1 of
Petitioner’s habeas petition, dismiss the petition, and decline to grant a COA. (R&R 26, DN
108).
Shortly thereafter, Petitioner filed a motion pursuant to Fed. R. Civ. P 60(b), seeking
relief from this Court’s order adopting the Magistrate Judge’s First R&R on the ground that this
Court erred in finding that he procedurally defaulted Grounds 2 and 3 and Parts 10 and 11 of
Ground 1 of his habeas petition. (R&R 1-5, DN 133). In particular, Petitioner argued for the
first time that ineffective assistance of counsel on direct appeal caused the procedural default of
Grounds 2 and 3, and that, therefore, that default should be excused. (R&R 5, DN 133).
Petitioner also averred that this Court should defy the Sixth Circuit and U.S. Supreme Court and
excuse his procedural default of Parts 10 and 11 of Ground 1 on the ground that ineffective
assistance of post-conviction appellate counsel caused the default. (R&R 5, DN 133).
On November 14, 2017, the Magistrate Judge issued a Third R&R in which he
recommended that this Court deny Petitioner’s Rule 60(b) motion. In reaching this conclusion,
the Magistrate Judge initially noted that the Sixth Circuit had previously declined to issue
Petitioner a COA on Grounds 2 and 3 of his habeas petition and that, though the Sixth Circuit
issued a COA to Parts 10 and 11 of Ground 1, it also affirmed this Court’s order rejecting those
claims. (R&R 3-5, DN 133). Then, the Magistrate Judge reviewed the merits of Petitioner’s
arguments and found neither persuasive.

Specifically, the Magistrate Judge reasoned that

Petitioner’s Rule 60(b) motion constituted a successive habeas petition because, in each of the

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arguments set forth therein, Petitioner essentially asked the Court for a second chance to have the
merits of his claims determined favorably. (R&R 8-14, DN 133).
Thereafter, Petitioner moved the Court to take judicial notice of certain adjudicative facts
and filed objections to the Second and Third R&Rs.

(See Pet’r’s Mot. Judicial Notice

Adjudicative Facts, DN 138; Pet’r’s Obj., DN 115; Pet’r’s Obj., DN 137). Respondent did not
file a response to Petitioner’s motion or objection, and the time to do so has passed. As such,
Petitioner’s objections and motion are ripe for adjudication. Nonetheless, because the Court’s
resolution of Petitioner’s objections to the Second and Third R&Rs disposes of this matter
entirely—thereby rendering his motion moot—the Court will only address his objections.
II.

JURISDICTION

This Court has jurisdiction to review “an application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgment of a State court” pursuant to 28 U.S.C. § 2254.
III.

STANDARD OF REVIEW

When reviewing a magistrate judge’s report and recommendation regarding a prisoner’s
petition for a writ of habeas corpus, “[a] judge . . . 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(b)(1)(C). If a petitioner fails to object, the Court need not “review a
magistrate’s factual or legal conclusions, under a de novo or any other standard.” Thomas v. Arn,
474 U.S. 140, 150 (1985). General objections have the same effect as would a failure to
object—i.e., the Court may forego review of general objections, and general objections are
insufficient to preserve the right to appeal. Mensah v. Mich. Dep’t of Corr., 513 F. App’x. 537,
538 (6th Cir. 2013) (explaining the consequences of failing to file specific objections).

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IV.

DISCUSSION

Petitioner has raised two objections to the Second R&R, and one objection to the Third
R&R. The Court will address each of these objections in turn.
A.

Petitioner’s Objections to the Second R&R

Petitioner raises two objections with respect to the Second R&R. First, Petitioner objects
to the Magistrate Judge’s conclusion that he fairly presented Parts 8 and 12 of Ground 1 during
his post-conviction proceedings. (Pet’r’s Obj. 1-3, DN 115). Petitioner proceeds to argue that
ineffective assistance of initial-review post-conviction counsel caused those arguments to not be
fairly presented, and, therefore, the procedural default of those grounds should be excused.
(Pet’r’s Obj. 1-3, DN 115). Second, Petitioner objects to the Magistrate Judge’s finding that his
procedural default of Parts 4 and 6 of Ground 1 were inexcusable because neither presented a
substantial claim of IATC. (Pet’r’s Obj. 3-5, DN 115). Neither objection has merit.6
With respect to the first objection, the record plainly illustrates that Petitioner raised both
the legal and factual bases Parts 8 and 12 of Ground 1 in two separate motions that he submitted
to the Barren Circuit Court during his post-conviction proceedings. (See Resp’t’s Ans. App. IIa,
at Page ID# 217-18, DN 20-3; Resp’t’s Ans. App. IV, at Page ID# 321-23, DN 20-7). That said,
Petitioner fairly presented these grounds in state court, meaning that he could not have
procedurally defaulted them at that time, much less that ineffective assistance of initial-review
6

Petitioner also seems to argue that the Court should allow him to argue that ineffective
assistance of post-conviction appellate counsel caused the procedural default of Parts 4, 6, 8, and
12 of Ground 1, and, that, therefore, such defaults should be excused. (Pet’r’s Obj. 1-3, DN
115). The U.S. Supreme Court, however, has rejected that argument, and, therefore, this Court
must reject it as well. See Martinez, 566 U.S. at 16 (noting that a procedural default caused by
ineffective assistance of counsel in “appeals from initial-review collateral proceedings” cannot
excuse the default).

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post-conviction counsel caused such a default. See Fulcher v. Motley, 444 F.3d 791, 798 (6th
Cir. 2006) (noting that claim is “fairly presented” if the factual and legal bases for it was raised
in the state court). Thus, the Magistrate Judge correctly found Petitioner procedurally defaulted
Parts 8 and 12 of Ground 1, and the procedural default is inexcusable.
The second objection does not warrant the Court’s review of the record. As noted,
Petitioner’s second objection is that the Magistrate Judge erred in concluding that neither Part 4
nor Part 6 of Ground 1 presented substantial claims of IATC. (Pet’r’s Obj. 3-5, DN 115). Thus,
this objection “does nothing more than state a disagreement with a magistrate’s suggested
resolution,” and “is not an ‘objection’ as that term is used in this context.” See Aldrich v. Bock,
327 F. Supp. 2d 743, 747 (E.D. Mich. 2004). Accordingly, Petitioner’s supposed objection need
not be reviewed “under a de novo or any other standard.” Thomas, 474 U.S. at 150.
B.

Petitioner’s Objection to the Third R&R

Though not entirely clear, Petitioner’s sole objection to the Third R&R appears to be that
the Magistrate Judge erred in denying his Rule 60(b) Motion because, in doing so, the Magistrate
Judge failed to consider his argument that the procedural default of Grounds 2 and 3, and of Parts
10 and 11 of Ground 1, should be excused because the Kentucky courts prevented him from
preserving those claims. (Pet’r’s Obj. 1-12, DN 137). In support of this argument, Petitioner
points out that he raised this argument in his habeas petition, but that the Magistrate Judge did
not consider it in the First R&R and then claims that, as a result, the Court must reopen its prior
judgment and given consideration to his contention. (Pet’r’s Obj. 1-12, DN 137).
Problematically, however, careful review of Petitioner’s Rule 60(b) motion reveals that
he did not raise this argument therein; rather, he raised this argument in the context of his Rule
60(b) motion for this first time in his objections. (See Pet’r’s Mot. Reopen Am. Pet., DN 123;

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Pet’r’s Obj., DN 137). Thus, the Magistrate Judge never had an opportunity to address whether
Petitioner is entitled to Rule 60(b) relief as to this Court’s order adopting the First R&R on the
ground that the procedural default of Grounds 2 and 3, and Parts 10 and 11 of Ground 1, should
be excused because the Kentucky courts prevented him from preserving those grounds.
As the Sixth Circuit has explained, “the Magistrate Judge Act . . . does not allow parties
to raise at the district court stage new arguments . . . that were not presented to the magistrate.”
Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000) (citations omitted); see also LauesGholston v. Mercedes-Benz Fin. Servs. USA, LLC, No. 14-CV-10844, 2014 WL 3908059, at *2
(E.D. Mich. Aug. 11, 2014) (“Parties are generally not permitted to raise new arguments or
claims before the district court that were not presented to the Magistrate Judge.” (citation
omitted)). Rather, such arguments “are deemed waived” and should be overruled. Marshall v.
Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (citations omitted); Laues-Gholston, 2014 WL
3908059, at *2. As such, the Court will overrule Petitioner’s objection to the Third R&R.
C.

Certificate of Appealability

The Magistrate Judge recommended that this Court deny Petitioner a COA with respect
to the claims raised in his habeas petition and Rule 60(b) motion. Petitioner did not raise any
specific objections to this recommendation and the Court will accept it.
V.

CONCLUSION

For the reasons listed above, IT IS HEREBY ORDERED as follows:
1.

Petitioner’s Objections to the Magistrate Judge’s Findings of Fact, Conclusions of

Law, and Recommendation (DN 115, DN 137) are OVERRULED;
2.

Magistrate Judge Brennenstuhl’s Findings of Fact, Conclusions of Law and

Recommendations (DN 108, DN 133) are ADOPTED as and for the opinion of this Court;

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3.

Petitioner’s Petition for Habeas Relief (DN 1) is DISMISSED WITH

PREJUDICE;
4.

Petitioner’s Motion to Reopen and Amend Petition (DN 123) is DENIED;

5.

Petitioner’s Motion for Judicial Notice of Adjudicative Facts (DN 138) is

DENIED AS MOOT; and
6.

The issuance of a certificate of appealability pursuant to 28 U.S.C. § 2253(c) and

Fed. R. App. P. 22(b) is DENIED.

Greg N. Stivers, Judge
United States District Court
January 10, 2018

cc:

counsel of record
Gary R. Woolbright, pro se

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