Haight v. Parker

Filing 135

MEMORANDUM OPINION by Senior Judge Charles R. Simpson, III on 9/11/2013; objection to Magistrate Whalins Order denying Petitioners request for an evidentiary hearing will be overruled by separate order.cc:counsel (TLB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

RANDY HAIGHT

PETITIONER

v.

CIVIL ACTION NO. 3:02-CV-P206-S

RANDY WHITE, Warden

RESPONDENT

MEMORANDUM OPINION

Petitioner Randy Haight filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 for relief
from custody stemming from his conviction by a Kentucky jury of two counts of murder, two counts
of robbery, and one count of possession of a handgun by a convicted felon. For the murder
convictions, Haight was sentenced to death; he was also sentenced to concurrent terms of twenty
years’ imprisonment for the two robbery counts and five years’ imprisonment for the handgun
possession count. Currently pending before the court are objections to an order of the magistrate
judge denying a motion by Haight for an evidentiary hearing.
I.
The basic facts of this case were set forth in a previous opinion of this court:
On August 18, 1985, Haight escaped from the Johnson County Jail in eastern
Kentucky. While still on the lam on August 22 (by this time having traveled west to
Garrard County), he shot and killed Patricia Vance and David Omer through the
window of their car. He was apprehended in a corn field in Mercer County the next
day.
(DN 85 at 1-2).
The procedural history of Haight’s case is lengthy, and has been covered exhaustively by the
magistrate judge. Hence, the court will only briefly summarize it. Haight was indicted in Garrard

County on charges of murder, robbery, and being a felon in possession of a handgun. He initially
pled guilty in exchange for a recommendation by the Commonwealth that he be sentenced to life
without parole for 25 years for each count of murder and 20 years for each robbery count, to be
served concurrently. However, the Garrard Circuit Court judge sentenced Haight to death. The
Kentucky Supreme Court vacated Haight’s guilty plea and reinstated the charges in the indictment.
Haight v. Commonwealth, 760 S.W.2d 84 (Ky. 1988) (Haight I).
Upon remand, the case was transferred to Jefferson Circuit Court. The Commonwealth
notified Haight that it would seek the death penalty after a trial. Haight filed a petition for a writ of
prohibition requiring that the original plea agreement be specifically enforced or that death be
removed as a possible penalty. In its second opinion in Haight’s case, the Kentucky Supreme Court
denied Haight’s request for the writ of prohibition. Haight v. Williamson, 883 S.W.2d 821 (Ky.
1992) (Haight II).
Haight was then tried in the Jefferson Circuit Court. He was convicted and sentenced as
noted in the introductory paragraph to this opinion. He took a direct appeal to the Kentucky Supreme
Court advancing a host of claims. The Kentucky Supreme Court affirmed Haight’s conviction and
sentence. Haight v. Commonwealth, 938 S.W.2d 243 (Ky. 1996) (Haight III).
After his direct appeal was denied, Haight filed a post-conviction motion in the Jefferson
Circuit Court pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42. That motion was
denied without an evidentiary hearing on September 9, 1998.
On September 21, 1998, Haight filed a notice of appeal from the denial of his RCr 11.42
motion as well as a motion in the Jefferson Circuit Court pursuant to Kentucky Rule of Civil
Procedure (CR) 59.05 to vacate that court’s order denying his RCr 11.42 motion. Haight thereafter

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requested that the Kentucky Supreme Court hold the appeal in abeyance pending the Jefferson
Circuit Court’s ruling on the CR 59.05 motion. The Kentucky Supreme Court denied the motion to
hold the appeal in abeyance.
On June 15, 2000, the Kentucky Supreme Court issued an opinion affirming the denial of
Haight’s RCr 11.42 motion; that opinion became final on April 26, 2001, when the Kentucky
Supreme Court denied Haight’s petition for rehearing. Haight v. Commonwealth, 41 S.W.3d 436
(Ky. 2001) (Haight IV).
Then, on November 29, 2001, Haight filed what he deemed an amendment and supplement
to his RCr 11.42 motion and CR 59.05 motion to vacate. On April 6, 2006, the Jefferson Circuit
Court entered an order denying the still-pending CR 59.05 motion to vacate on the ground that the
issues raised therein had been determined adversely to Haight by the Kentucky Supreme Court and
thus the Jefferson Circuit Court was without jurisdiction to hear those issues. On August 23, 2007,
the Kentucky Supreme Court affirmed the denial of the CR 59.05 motion. Haight v. Commonwealth,
2007 WL 2404494 (Ky. 2007) (Haight V).
II.
Because the magistrate judge’s order concerned a nondispositive motion, the standard of
review is whether the order “is clearly erroneous or is contrary to law.” 28 U.S.C. § 636(b)(1)(A);
Fed. R. Civ. P. 72(a). The magistrate judge has provided a thorough overview of the standards
relating to evidentiary hearings in habeas corpus actions brought pursuant to 28 U.S.C. § 2254 (DN
128 at 17-25); the court will discuss such standards below only when necessary to resolve Haight’s
objections.

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III.
Of the claims for which petitioner now seeks an evidentiary hearing, the magistrate judge
found that the claims in grounds 6, 9, 11, 13, 15, 16, and 31 of Haight’s petition had been
adjudicated on the merits by the Kentucky Supreme Court. The magistrate judge then concluded that
Cullen v. Pinholster, 131 S.Ct. 1388 (2011) barred consideration of any facts other than those in the
record before the Kentucky Supreme Court as to those claims, and accordingly denied Haight an
evidentiary hearing as to them. Haight disagrees that Pinholster precludes an evidentiary hearing
as to claims adjudicated by the Kentucky Supreme Court.
A.
The basic facts in Pinholster are as follows: Pinholster was tried and convicted of two counts
of first-degree murder and sentenced to death. 131 S.Ct. at 1395-1396. During the penalty phase of
Pinholster’s trial, his attorneys did not call a psychiatrist, although they did consult Dr. John
Stalberg before the trial. Id. at 1396. Dr. Stalberg had “noted Pinholster’s ‘psycopathic personality
traits,’ diagnosed him with antisocial personality disorder, and concluded that he ‘was not under the
influence of extreme mental or emotional disturbance’ at the time of the murders.” Id. After
Pinholster’s conviction was affirmed on direct appeal by the California Supreme Court, Pinholster,
through state post-conviction proceedings, raised, inter alia, a claim of ineffective assistance of
counsel at the penalty phase of his trial for his attorneys’ alleged failure to adequately investigate
and present mitigating evidence concerning mental disorders. Id.. Pinholster adduced various pieces
of evidence before the state courts as to that claim: medical, school, and legal records; declarations
from family members, one of his defense attorneys, and Dr. George Woods, a psychiatrist who
criticized Dr. Stalberg’s report; and a declaration from Dr. Stalberg. Id. However, the California

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Supreme Court twice rejected the penalty-phase ineffectiveness claim on its merits. Id. at 13961397. Pinholster sought federal habeas relief on that claim. Id. The federal district court granted
Pinholster an evidentiary hearing, at which Pinholster called two new medical experts: Dr. Sophia
Vindogradov, a psychiatrist, and Dr. Donald Olsen, a pediatric neurologist. Id. at 1397. After the
hearing, the district court granted Pinholster habeas relief on the penalty-phase ineffectiveness claim.
Id. A panel of the Ninth Circuit reversed, but in a rehearing en banc, the Ninth Circuit vacated the
panel opinion and affirmed the district court’s grant of habeas relief. Id.
The Supreme Court found that the Ninth Circuit erred in considering the evidence produced
at the evidentiary hearing held by the district court. The Supreme Court explained that the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) set limits on the powers of federal
courts to grant writs of habeas corpus to state prisoners. Pinholster, 131 S.Ct. at 1398. One of those
limits is that when a claim is “adjudicated on the merits in State court proceedings,” habeas relief
may be granted only if the state court’s adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
Id. (quoting 28 U.S.C. § 2254(d)). The Supreme Court found that review under § 2254(d)(1) “is
limited to the record that was before the state court that adjudicated the claim on the merits.” Id. In
so holding, the Supreme Court noted the “backward-looking language” of the statute, as well as the
incongruity that would arise from asking whether a state court’s adjudication resulted in a decision
unreasonably applying federal law to facts that were not before the state court. Id. at 1398-1399. In
sum, the Supreme Court stated, “If a claim has been adjudicated on the merits by a state court, a
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federal habeas petition must overcome the limitation of § 2254(d)(1) on the record that was before
the state court.” Id. at 1400. It would thus appear that the application of Pinholster to Haight’s
motion for an evidentiary hearing is abundantly clear: if the Kentucky Supreme Court adjudicated
one of Haight’s claims on the merits, then Haight is not entitled to an evidentiary hearing as to that
claim.
Haight, however, contends that he is not foreclosed from an evidentiary hearing on the
claims adjudicated by the Kentucky Supreme Court on the merits. He relies in large part on Panetti
v. Quarterman, 551 U.S. 930 (2007). Thus, we turn to that case.
In Panetti, Panetti argued in Texas state court that he was incompetent to be executed. 551
U.S. at 938. The Texas state court appointed two mental health experts, who concluded that Panetti
was competent to be executed. Id. at 939-940. Panetti sought a competency hearing, arguing that he
was entitled to procedural due process requirements set forth in Ford v. Wainwright, 477 U.S. 399
(1986). Panetti, 551 U.S. at 939, 941. Without providing Panetti any further opportunity to present
evidence that he was incompetent or to contest the findings of the court-appointed experts, the Texas
state court adopted the report submitted by the court-appointed experts and found that Panetti had
not shown that he was incompetent to be executed. Id. at 941.
The Supreme Court found that the “state court’s failure to provide the procedures mandated
by Ford constituted an unreasonable application of clearly established law as determined by this
Court.” Id. at 948. Because the Texas state court unreasonably applied Ford, the state court’s
determination of competency was not entitled to any deference. Id. at 954. The Supreme Court
explained, “When a state court’s adjudication of a claim is dependent on an antecedent unreasonable
application of federal law, the requirement set forth in § 2254(d)(1) is satisfied. A federal court must

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then resolve the claim without the deference AEDPA otherwise requires.” Id. at 953. Thus, the
Supreme Court sanctioned de novo review of Panetti’s competency claim by the federal district
court based on evidence adduced at an evidentiary hearing held by the federal district court. See id.
at 954-962.
According to Haight, his case and Panetti are similar because both he and Panetti had
motions for funds for experts, discovery, and an evidentiary hearing pending when a state court
judge entered an order denying their claims on the merits. However, Haight’s analogy fails.
The key to the Supreme Court’s holding in Panetti was that the state court’s failure to grant
Panetti an evidentiary hearing as to his competency to be executed was an unreasonable application
of clearly-established federal law as set forth by the Supreme Court in Ford. As the Supreme Court
explained in Panetti, Ford mandated that, once a prisoner made a “‘substantial threshold showing
of insanity,’” he was entitled to, at the very least, “an opportunity to submit ‘evidence and argument
from the prisoner’s counsel, including expert psychiatric evidence that may differ from the State’s
own psychiatric examination.’” Panetti, 551 U.S. at 950 (quoting Ford, 477 U.S. at 426, 427
(Powell, J., concurring)). But Panetti never received that opportunity.
Thus, for Haight’s situation to be truly analogous to Panetti’s, Haight must show that he had
a clearly established constitutional right to some procedure that he did not receive. But Haight has
not made such a showing. True, when the state court denied Haight’s post-conviction RCr 11.42
motion, there were pending motions for expert witness funds, discovery, and an evidentiary hearing
that the state court had not yet ruled upon. But for all that Haight complains that it was unfair for
the state court to deny him expert funds, discovery, and an evidentiary hearing, he does not identify
any Supreme Court precedent holding that he has a constitutional right to post-conviction expert

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funds, discovery, or a hearing. Indeed, as the magistrate judge pointed out in his order, courts in the
Sixth Circuit have long held that errors in the state post-conviction process are not proper subjects
of federal habeas corpus review (DN 128 at 31-32). As Haight has not, and cannot, show that the
state court’s post-conviction procedures were unreasonable applications of clearly established
federal law, he also cannot show that his case is analogous to Panetti.
In short, this court agrees with the magistrate judge that under Pinholster this court is limited
to the record before the state court when determining pursuant to § 2254(d)(1) whether a claim that
the state court adjudicated on the merits involved an unreasonable application of clearly established
federal law.
B.
Ground 6
In ground 6, Haight claims that his trial attorney was ineffective during the penalty stage of
his trial for failing to seek to introduce evidence that the Commonwealth had previously offered
Haight a plea with a sentence of life imprisonment which Haight had accepted. The Kentucky
Supreme Court rejected that claim in section X of Haight IV. 41 S.W.3d at 447-448. It found that
the right to introduce such evidence had not been decided in Kentucky and Haight’s attorney could
not be considered constitutionally deficient for failing to advance a novel theory that such evidence
should be admitted. Id. As the magistrate judge found, the Kentucky Supreme Court’s rejection of
that claim renders an evidentiary hearing on it inappropriate under Pinholster.
Ground 9
Haight seeks an evidentiary hearing as to his claim in ground 9 that his trial attorney
rendered ineffective assistance in failing to move for a mistrial because alternate juror Donahue sat

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in close proximity to family members of the victims. In his objections, Haight takes issue with the
magistrate judge’s finding that the Kentucky Supreme Court adjudicated this claim on the merits.
In Haight III, the Kentucky Supreme Court stated:
[A]ppellant has raised questions concerning jurors Hansen, Ireland, Huffman,
Nestmann and Gaugh. He has also questioned the post-discharge behavior of an
alternate juror and complained that the court coerced a penalty phase verdict. This
Court has carefully considered each of these claims of error and determined that as
to each, there was no preservation of the question or that the ruling was within the
sound discretion of the trial court.
938 S.W.2d at 247. Then, in section VI of Haight IV, the Kentucky Supreme Court, at the end of a
paragraph rejecting complaints by Haight related to jury issues, stated, “The allegation with respect
to juror Donahue was rejected in the direct appeal of this case. Defense counsel was not ineffective
and Haight received a fundamentally fair trial by an impartial jury.” 41 S.W.3d at 446.
The court agrees with the magistrate judge that the Kentucky Supreme Court rejected the
claim in ground 9 concerning juror Donahue on the merits. While the Kentucky Supreme Court’s
statements in Haight III may not have been entirely clear, leaving open the possibility that the claim
was being rejected on procedural grounds, the statements in Haight IV left no such possibility open.
In Haight IV, the Kentucky Supreme Court stated in no uncertain terms that, in regard to Haight’s
claim about juror Donahue, defense counsel was not ineffective, the trial was fundamentally fair,
and the jury was impartial. Accordingly, as the claim in ground 9 was adjudicated on the merits by
the Kentucky Supreme Court, Pinholster limits the § 2254(d) review to the record before that court.
Grounds 11 and 31
In ground 11, Haight contends that his constitutional rights were violated when the trial
court, during the post-conviction proceedings, did not provide him an opportunity to request expert
funding. In ground 31, Haight claims that, after his trial attorney discovered a 1973 mental health
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evaluation of Haight during the trial, the trial court should have provided Haight an opportunity to
explore that report and expert funds to do so. The magistrate judge found that the Kentucky Supreme
Court addressed those claims on the merits.1
In his objections, Haight does not suggest that the magistrate judge was wrong that the
Kentucky Supreme Court adjudicated the claims in grounds 11 and 31 of the habeas petition on its
merits. Instead, as to ground 11, Haight’s analysis is nothing more than the statement, “The
Magistrate Judge’s Order is clearly erroneous and contrary to law.” And, as to ground 31, Haight
uses his objections only to attack the Kentucky Supreme Court’s merit-based rejection of that claim.
As there appears to be no dispute that the Kentucky Supreme Court adjudicated the claims in
grounds 11 and 31 on the merits, no evidentiary hearing is warranted on those claims under
Pinholster.
Ground 13
In ground 13, Haight claims that his trial attorney was ineffective for failing to investigate
and present mitigation evidence in the form of a neuropsychological expert and a
psychopharmacologist. The magistrate noted that the Kentucky Supreme Court adjudicated that
claim on its merits in Haight IV. Haight does not disagree. Accordingly, Pinholster limits review
of that claim under § 2254(d) to the state court record.

1

The magistrate judge also found that the claim in ground 11 did not warrant an evidentiary
hearing because it involved nothing more than the adequacy of state post-conviction proceedings,
which are not of federal concern. The magistrate judge further noted that both he and the
undersigned have previously denied Haight’s request for funds to retain mental health experts
because such new expert testimony would not be relevant to the underlying claim of ineffective
assistance of counsel.
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Ground 15
In ground 15, Haight contends that his trial attorney rendered ineffective assistance of
counsel at the penalty phase of his trial by failing to request that the court instruct the jury not to
draw an adverse inference from his failure to testify during the penalty phase. The magistrate judge
found the claim to have been adjudicated on its merits by the Kentucky Supreme Court in Haight
IV, but Haight suggests in his objections that the magistrate judge’s conclusion is wrong.
In section XI of Haight IV, the Kentucky Supreme Court stated:
Haight complains that trial counsel was ineffective by not requesting that a “No
adverse inference” instruction relating to the defendant’s right to remain silent be
given at the penalty phase. Haight testified at the guilt phase of this trial, but he did
not testify during the penalty phase. His counsel did not tender a “No adverse
inference” instruction, did not request such an instruction or object to the failure of
the court to give one. He asserts that it was incumbent upon the trial judge to instruct
the jury that the defendant did not have an obligation to testify in mitigation and no
adverse influence could be drawn from his failure to do so.
This claim does not amount to ineffective assistance of counsel. The allegation is not
properly presented on his appeal because it was an issue on direct appeal of the case.
Haight did testify during the guilt phase of his trial and admitted killing the two
victims. Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981),
is not applicable.
41 S.W.3d at 448.
The court agrees with the magistrate judge that the Kentucky Supreme Court addressed this
claim on the merits. Although the Kentucky Supreme Court referenced a possible procedural bar –
albeit an erroneous one since Haight did not raise this issue on direct appeal – the language of the
Kentucky Supreme Court’s opinion indicates that its decision rests on the merits of the claim. For
one thing, the analysis begins with a direct rejection of the ineffective assistance of counsel aspect
of the claim. It also explains that Haight had testified during the guilt phase before finding that
Carter v. Kentucky, a Supreme Court case holding that a court is obligated to give a no-adverse- 11 -

interest instruction when a defendant requests one, was inapplicable. The clear implication was that
Haight’s situation was distinguishable from that in Carter, and thus that his argument concerning
the propriety of his attorney’s failure to request, and the court’s failure to give, a no-adverseinference instruction failed on the merits. Whether or not the language concerning Haight having
raised the issue on direct appeal is considered an invocation of a procedural bar, it is plain that the
Kentucky Supreme Court also found Haight’s argument to be without merit. Accordingly, the
Kentucky Supreme Court’s merits conclusion must be reviewed under § 2254(d) standards. Hoffner
v. Bradshaw, 622 F.3d 487, 505 (6th Cir. 2010) (“[W]e give AEDPA deference to a ruling on the
merits despite the fact that the reasoning was given as an alternative to a primary grounds for
decision.”); Brooks v. Bagley, 513 F.3d 618, 625 (6th Cir. 2008) (“While the state court of appeals
need not have addressed the claim on the merits once it identified a procedural bar, it surely had the
authority to do so as an additional ground for decision – making this additional ground no less a
‘claim that was adjudicated on the merits in State court proceedings’ than if the case had not
presented a procedural-bar issue at all.”). Thus, an evidentiary hearing is unwarranted under
Pinholster.
Ground 16
In ground 16, Haight claims that his trial attorney was ineffective for failing to offer as
mitigation evidence a letter Haight wrote to a family member of one victim. The Kentucky Supreme
Court indisputably adjudicated that claim on the merits in section XII of Haight IV, 41 S.W.3d at
448-449. Accordingly, no evidentiary hearing is warranted on that claim.

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C.
In short, for each of the claims discussed above, the court agrees with the magistrate judge
that the Kentucky Supreme Court adjudicated the claims on the merits. Thus, those claims are still
subject to the § 2254(d) analysis. Pinholster makes clear that this court may not consider new
evidence that was not presented to the state court when conducting the § 2254(d) analysis.2
IV.
The magistrate judge denied an evidentiary hearing on the claims in grounds 14, 43, 44, and
45 after determining that those claims had been procedurally defaulted. Haight argues in his
objections that he is entitled to an evidentiary hearing as to each of those claims.
Ground 14
In ground 14, Haight raises claims concerning his trial attorney’s actions with respect to
certain jurors that allegedly fell asleep during the penalty phase of the trial. During a bench
conference regarding penalty phase jury instructions, Haight’s attorney stated that the jury appeared
to have “a short attention span, with a couple of them sleeping through the penalty phase, even in
the morning.” Haight’s attorney provided no further facts and did not move for a mistrial or other
relief.
In section IX of Haight IV, the Kentucky Supreme Court addressed Haight’s claim that his
attorney was ineffective for failing to take further action with respect to the allegedly sleeping jurors.
The Kentucky Supreme Court stated:

2

While Haight suggests that an evidentiary hearing may be held if the claims are not barred
by § 2254(d), i.e., the Kentucky Supreme Court’s determination of the claims was based on an
unreasonable application of the law or facts, the court has not yet conducted any § 2254(d) analysis.
Thus, it was not error for the magistrate judge to deny an evidentiary hearing based on the holding
of Pinholster.
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Haight argues that trial counsel was ineffective because he failed to move for a
mistrial or make any effort to get factual details into the record regarding the alleged
sleeping of jurors during part of the penalty phase. He also contends that the trial
judge committed error when he took no action on his own initiative.
Haight does not plead this claim with the specificity required by RCr 11.42(2). He
does not state which jurors were alleged to be sleeping and he does not indicate when
the event occurred, if it actually took place. Haight is not entitled to the requested
relief.
Haight does not indicate what information the jurors supposedly missed and how that
would have changed the outcome of his trial. If defense counsel did see jurors with
their eyes closed, there is no evidence that they were sleeping. In addition there is no
evidence that the trial judge ever observed the alleged sleeping.
Haight IV, 41 S.W.3d at 447.
The Kentucky Supreme Court thus relied upon a state procedural rule – the requirement in
RCr 11.42(2) that a movant state “specifically . . . the facts on which the movant relies” in support
of his motion to vacate – to dispose of the claim. Of course, if that procedural ruling bars this court
from considering the claim, then there would be no need to grant an evidentiary hearing on the
claim.
Haight, however, argues that this court is not barred from considering ground 14 of the
petition because, according to Haight, he has can establish cause for his procedural default under
Martinez v. Ryan, 132 S.Ct. 1309 (2012). Until Martinez, the rule in the Sixth Circuit was that a
claim of ineffective assistance of post-conviction counsel was insufficient to establish cause for a
procedural default. See Gulertekin v. Tinnelman-Cooper, 340 F.3d 415, 425 (6th Cir. 2003). Then,
the Supreme Court held in Martinez that “[w]here, 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
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ineffective.” Martinez, 132 S.Ct. at 1320. Thus, under Martinez, there is now a “narrow exception”
to the general rule that claims of ineffective assistance of post-conviction counsel are insufficient
to establish cause for a procedural default. Id. at 1315.
The magistrate judge held that Martinez did not apply to Haight’s claim in ground 14
because Martinez pertains only to “omitted” post-conviction claims, not claims that were raised by
post-conviction counsel but denied on other procedural grounds. Here, the magistrate judge noted,
Haight’s post-conviction attorneys actually raised in the state post-conviction proceedings the claim
that he presented in ground 14 of his habeas petition.
As to the applicability of Martinez to a situation where a post-conviction attorney raises a
claim of ineffective assistance of trial counsel in an initial-review collateral proceeding, but does
so in a manner that fails to meet the requirements of a procedural rule, the court must disagree with
the magistrate judge. Martinez is clear that errors by post-conviction attorneys in collateral
proceedings that rise to the level of ineffective assistance of counsel may be sufficient to establish
cause for a procedural default of an ineffective assistance of trial counsel claim. That is so whether
the post-conviction attorney entirely failed to raise the claim or raised the claim, but did so in a
manner that was insufficient to meet prevailing professional standards. See, e.g., Martinez, 132 S.Ct.
at 1315 (“When faced with the question whether there is cause for an apparent default, a State may
answer . . . that the attorney in the initial-review collateral proceeding did not perform below
constitutional standards.”).
Nonetheless, the court agrees with the magistrate judge’s ultimate conclusion that an
evidentiary hearing as to the claim in ground 14 is unwarranted. As detailed above, the court finds
that Martinez allows a habeas petitioner to argue that he has cause for a procedural default of an

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ineffective assistance of trial counsel claim because his post-conviction attorney raised that claim
in an initial review collateral proceeding in an ineffective manner. But it is still up to Haight to
establish that his post-conviction attorney performed below the Strickland standard and that the
underlying claim of ineffective assistance of trial counsel claim is “a substantial one.” See Martinez,
132 S.Ct. at 1319.
However, as the magistrate judge pointed out, Haight fails to provide any meaningful
explanation of what facts he would elicit at the evidentiary hearing were the court to grant one. Even
after the magistrate judge pointed that out in his opinion, Haight largely declined to elaborate in his
objections as to what facts he could show at an evidentiary hearing. He simply makes the statement
that he wishes to “present evidence regarding exactly which jurors were sleeping, for how long, and
what evidence was presented while they slept,” without explaining what facts such evidence will
actually adduce. Thus, the court is left with no information as to why an evidentiary hearing would
be worthwhile. In other words, while Haight states general areas into which he would like to
inquire, he points this court to no factual allegations which, if true, would establish cause and
prejudice.

Indeed, Haight’s unwillingness to state what facts he believes

he could show at an evidentiary hearing not only renders this court unable to conclude that an
evidentiary hearing would be anything other than a waste of time and resources, but it also strongly
suggests that Haight views the evidentiary hearing as a fishing expedition rather than an opportunity
to prove relevant facts to the court. The need to allege specific facts in support of his arguments
should have been of particular concern to Haight given that it was the same lack of factual
specificity about the underlying ineffective-assistance-of-trial-counsel claim that led to the
procedural default of that claim. Haight cannot show that his post-conviction attorney was

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ineffective for failing to allege specific facts when Haight continues to decline to state what facts
could have and should have been alleged.
Simply put, for the court to conclude that an evidentiary hearing is necessary, Haight must
tell the court what facts he can prove that will ultimately lead to his success. He has not attempted
to do. Thus, the court will overrule his objections to the magistrate judge’s denial of an evidentiary
hearing as to this point.
Ground 43
In ground 43, Haight sets forth a claim of ineffective assistance of appellate counsel based
on the failure of counsel on Haight’s direct appeal to challenge the trial court’s refusal to instruct
the jury on theft by unlawful taking as a lesser included offense of robbery. The claim was first
raised in Haight’s amendment and supplement to his RCr 11.42 motion and CR 59.05 motion.
Despite the name given to that document by Haight, it was filed after the Kentucky Supreme Court
had issued Haight IV, affirming the Jefferson Circuit Court’s denial of the original RCr 11.42
motion, although the CR 59.05 motion was still pending. The Jefferson Circuit Court ultimately
denied the CR 59.05 motion on the basis that it had no jurisdiction to consider the motion.
In Haight V, the Kentucky Supreme Court found that the Jefferson Circuit Court properly
determined that it did not have jurisdiction to rule on the CR 59.05 motion by virtue of the fact that
the Kentucky Supreme Court had declined to abate Haight’s appeal from the judgment denying his
RCr 11.42 motion and had subsequently issued its opinion in Haight IV affirming the judgment
denying Haight’s RCr 11.42 motion. Haight V, 2007 WL 2404494, at *2. The Kentucky Supreme
Court noted that allowing the circuit court to rule on the motion to vacate after the Kentucky
Supreme Court issued its decision affirming the denial of the RCr 11.42 motion would essentially

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allow the circuit court to “make a ruling in a case that could possibly overturn th[e Kentucky
Supreme Court’s] appellate ruling on the same motion.” Id. The Kentucky Supreme Court
continued:
The remaining issues raised by Haight – that he was denied his right to counsel in the
post-conviction proceeding because of conflicts of interest within the Department of
Appellate Advocacy, that he should have been granted leave to amend and
supplement his RCr 11.42 motion, that he was denied effective assistance of counsel
at trial, and that he should have gotten Wanton Murder and Theft instructions – are
issues that either were raised in the RCr 11.42 motion and on direct appeal, or should
have been raised in the RCr 11.42 motion or on direct appeal. RCr 11.42(3) provides,
“The motion shall state all grounds for holding the sentence invalid of which the
movant has knowledge. Final disposition of the motion shall conclude all issues that
could reasonably have been presented in the same proceeding. Also, to the extent
that certain of the issues were raised for the first time in the CR 59.05 motion, it has
been held that a party cannot invoke CR 59.05 to raise issues that could have been
presented in the proceedings prior to entry of the judgment. In viewing Haight’s CR
59.05 motion, we see that the issues raised in that motion were issues that were
known to Haight prior to the filing of his RCr 11.42 motion.
Id. at *3 (citations omitted).
In a prior order concerning discovery on this claim, this court found the claim of ineffective
assistance of appellate counsel for failing to argue the theft instruction issue to be procedurally
defaulted because the Kentucky Supreme Court held that it was one of several that “should have
been raised in the [Ky. R. Crim. P.] 11.42 motion or on direct appeal” and offered no alternative
ground for its judgment (DN 85 at 10). The Court finds no reason to reverse course on that holding.
In his objections, Haight argues that the Kentucky Supreme Court’s finding that the circuit
court was without jurisdiction to consider the CR 59.05 motion was not an independent and adequate
state ground because it was not a regularly applied rule. In support, Haight cites a number of cases
where a Kentucky appellate court made some statement indicating that it was considering an appeal
from both an order denying an RCr 11.42 motion and a CR 59.05 motion to vacate that order.

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But Haight’s concern over whether the circuit court had jurisdiction to address the CR 59.05
motion is misplaced, at least insofar as it relates to ground 43 of the petition. The jurisdictional issue
related to whether the circuit court could, in effect, reconsider the claims raised in the original RCr
11.42 motion by considering the CR 59.05 motion to vacate. Thus, the Kentucky Supreme Court
found that it would be inappropriate for the circuit court to consider the CR 59.05 motion since the
Kentucky Supreme Court had already issued a decision affirming the denial of the RCr 11.42 motion
and allowing the circuit court to consider the CR 59.05 motion would allow the circuit to “possibly
overturn this Court’s appellate ruling.” Haight V, 2007 WL 2404494, at *2.
But the claim in ground 43 of the petition was not raised in the original RCr 11.42 motion
or, for that matter, in the initial CR 59.05 motion. Rather, the claim in ground 43 was first put to the
trial court in the amendment and supplement that Haight filed after the Kentucky Supreme Court
had already affirmed the denial of the original RCr 11.42 motion. Thus, it fell in the pile of
“remaining issues raised by Haight” that the Kentucky Supreme Court declined to address on the
merits on the basis that they should have been raised previously. 2007 WL 2404494, at *3. In that
regard, the Kentucky Supreme Court quoted RCr 11.42(3): “The motion shall state all grounds for
holding the sentence invalid of which the movant has knowledge. Final disposition of the motion
shall conclude all issues that could reasonably have been presented in the same proceeding.” Id. The
Kentucky Supreme Court also noted the rule that a CR 59.05 motion could not be used to raise
issues that could have been presented prior to entry of the judgment. Id. Simply put, it is clear that
the Kentucky Supreme Court declined to review the issues raised for the first time in the amendment
and supplement due to the fact that the issues could have been – but were not – raised previously.

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In its previous order, the court also found that Haight was without “cause” for his procedural
default (DN 85 at 11-13). The court relied upon Sixth Circuit precedent to find that Haight could not
allege ineffective assistance of post-conviction counsel as cause for defaulting his ineffective
assistance of appellate counsel claim (see id. at 13 n.6). Martinez has since clarified an exception
to that rule. 132 S.Ct. at 1315. The magistrate judge concluded that the exception in Martinez
applied to the claim in ground 43, thus allowing Haight to argue that his post-conviction attorneys’
ineffectiveness constituted cause for his procedural default of that claim (DN 128 at 65-67). The
magistrate judge nonetheless denied an evidentiary hearing on the claim in ground 43 because he
found that Haight could not demonstrate prejudice from the failure of his post-conviction attorneys
to raise that claim (DN 128 at 67-71).
After the magistrate judge issued the order denying an evidentiary hearing, the Sixth Circuit
issued a decision in Hodges v. Colson, 2013 WL 4414811 (6th Cir. 2013). In that case, the Sixth
Circuit concluded that the exception in Martinez applied only when the underlying claim was one
for ineffective assistance of counsel at trial. Hodges, 2013 WL 4414811, at *9. Thus, with respect
to Hodge’s claim of ineffective assistance of appellate counsel, the Sixth Circuit found that he could
not rely on Martinez to argue that his post-conviction attorneys’ incompetence sufficed as cause for
defaulting that claim. Id. at *9-*10. Haight therefore cannot establish cause for defaulting his
ineffective assistance of appellate counsel claim by pointing to the failure of his post-conviction
attorneys to raise the claim in his initial RCr 11.42 motion. Thus, there is no reason to grant Haight
an evidentiary hearing as to the claim in ground 43.

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Ground 44
In ground 44, Haight claims that his trial attorney rendered ineffective assistance by not
seeking an instruction regarding wanton murder and by failing to advise Haight regarding wanton
murder. As with ground 43, Haight first raised the claim in ground 44 in his amendment and
supplement that he filed in the circuit court after the Kentucky Supreme Court issued Haight IV. As
discussed above, Haight procedurally defaulted the claims raised for the first time in the amendment
and supplement by failing to raise them at an earlier time.
Turning to whether Haight can establish cause for procedurally defaulting the claim in
ground 44, Haight lays blame at the feet of his post-conviction attorneys. He states that his postconviction attorneys should have raised in the initial RCr 11.42 motion a claim of ineffective
assistance of trial counsel for failing to ask for the wanton murder instruction and a claim of
ineffective assistance of appellate counsel for failing to raise the issue as unpreserved error (see DN
131-2 at 88). He accordingly argues that his post-conviction attorneys’ failures constitute cause for
his procedural default.
As to the argument that his post-conviction attorneys should have raised a claim of
ineffective assistance of appellate counsel, the discussion of Hodges in the section of this opinion
concerning ground 43 applies. Hodges holds that Martinez does not allow a habeas petitioner to
argue cause for procedurally defaulting an ineffective assistance of appellate counsel claim based
on the failure of post-conviction counsel to raise such a claim.
However, Martinez does allow for an argument by Haight that his post-conviction attorneys’
failure to raise a claim concerning trial counsel’s alleged ineffectiveness for not requesting a wanton
murder instruction constituted cause to excuse the procedural default of such an ineffective

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assistance of trial counsel claim. Nevertheless, the court finds that an evidentiary hearing on this
claim is unwarranted because, even if Haight were to prove what he says he can prove, he will not
have shown that his post-conviction attorney nor his trial attorney were ineffective, meaning that
he cannot establish cause or prejudice for his procedural default nor can he establish that he would
be entitled to relief on his underlying claim.
In his evidentiary motion, Haight explains his claim thusly: had his trial attorney requested
a wanton murder instruction, the trial court would have been required to give the jury such an
instruction. And had the jury convicted Haight of wanton murder rather than intentional murder,
then one of the two aggravating circumstances in the case – that Haight’s “acts of killing were
intentional and resulted in multiple deaths,” KRS § 532.025 – would not have been present.
Accordingly, Haight faults his trial attorney for failing to request the wanton murder instruction.
Yet, upon a fuller understanding of the relevant law, a strategic reason for Haight’s trial
attorney’s decision not to request a wanton murder instruction is readily apparent. Namely, wanton
murder is not a lesser-included offense of intentional murder, but is another form of committing
murder. Ratliff v. Commonwealth, 194 S.W.3d 258, 275 (Ky. 2006) (quoting Foster v.
Commonwealth, 827 S.W.2d 670, 677-678 (Ky. 1991)). Thus, both intentional murder and wanton
murder are capital offenses. KRS § 507.020. Had Haight been convicted of wanton murder, he still
would have potentially faced the death penalty. By contrast, the instruction defense counsel sought
and received on first-degree manslaughter provided an opportunity for Haight to avoid the death
penalty entirely. It is not hard to see why a defense attorney would choose to submit just one

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alternative offense, which would eliminate any possibility of the death penalty, rather than two
alternative offenses, one of which left the possibility of the death penalty on the table.3
Additionally, the law requires a “strong presumption that counsel acted reasonably and
effectively.” Moore v. Commonwealth, 983 S.W.2d 479, 480 (citing Strickland v. Washington, 466
U.S. 668, 689-690 (1984). Taking into account the presumption and the readily apparent strategic
reason for a defense attorney to decline to seek an alternative jury instruction that still would have
left the possibility of the death penalty open, Haight’s ineffective assistance of trial counsel claim
for failure to seek a wanton murder instruction would have faced a large hurdle before the state
court.
The information Haight states that he would elicit at an evidentiary hearing is insufficient
to surmount the hurdle. Haight states that he would show that he consulted with his trial attorneys
about his testimony prior to taking the stand, but counsel never discussed whether to request a
wanton murder instruction with Haight despite knowing that Haight would tell the jury that he had
no intention of killing the victims. But the court declines to find that counsel was ineffective simply
because he did not discuss with Haight whether to request that the court instruct the jury on an
alternative charge that still would have left Haight open to the death penalty.
Relying primarily on Jacobs v. Commonwealth, 870 S.W.2d 412 (Ky. 1994), Haight
contends that the choice of defense in the case was his to make, not his attorney’s. However, Jacobs
affords Haight little help. In that case, the Kentucky Supreme Court found that the defendant’s right
to present a defense of innocence was undermined by his attorney’s presentation of an insanity
3

In fact, had the defense attorney requested and received an alternative instruction on a
capital crime, a claim of ineffective assistance of counsel based on that action would have had just
as much, if not more, facial appeal than Haight’s claim that his defense attorney was ineffective for
not requesting such an instruction.
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defense to the jury. Jacobs, 870 S.W.2d at 417-418. Here, of course, it cannot be disputed that
Haight, who testified as to his version of the facts, was able to put the defense of his choosing before
the jury – namely, that he did not have a murderous intent and thus should be convicted of a lesser
crime than capital murder. Jacobs and this case are simply not analogous. The stark choice between
whether to present an innocence or insanity defense is entirely different from the question of whether
to offer the jurors an alternative “middle-ground” charge of which they could convict a defendant.
That is all the more true in this case, where the ostensible “middle-ground” charge that defense
counsel was supposedly ineffective for failing to seek would still have been a capital offense.
In short, the court believes that, even taking into account the evidence that Haight suggests
he would put forth at an evidentiary hearing, he would not be able to establish that his trial attorney
was ineffective. Further, Haight’s failure to make allegations sufficient to show that his trial attorney
was ineffective also render inadequate his suggestion that he has cause for procedurally defaulting
his claim based upon his post-conviction attorney’s supposed ineffectiveness; his post-conviction
attorney certainly cannot be faulted for failing to raise a meritless claim. Thus, the court finds that
an evidentiary hearing is unwarranted on the claim in ground 44.
Ground 45
The claim in ground 45 is a cumulative ineffective assistance of trial counsel claim. Haight
explains it in his objections as being “based upon all of the instances of ineffective assistance of trial
counsel, especially how trial counsel ignored his client’s rights and wishes.” The cumulative
ineffective assistance of counsel claim was raised for the first time in the amendment and
supplement in which Haight also raised the claims in grounds 43 and 44 for the first time . Thus, as
with both of those grounds, Haight procedurally defaulted ground 45.

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The magistrate judge concluded that Haight had not shown any entitlement to an evidentiary
hearing on ground 45 because Haight had provided “no suggestion of what evidence he would hope
to present or how it would materially alter the possible outcome of his petition” with respect to that
claim. Even after the magistrate judge pointed that out, Haight has made no attempt in his objections
to elucidate what evidence he would submit. Accordingly, the court sees no basis for overturning
the magistrate judge’s ruling that an evidentiary hearing on ground 45 is not warranted.
V.
Grounds 7 and 10
Grounds 7 and 10 of Haight’s motion both relate to the adequacy of Kentucky’s postconviction procedures. In ground 7, Haight claims that he was denied due process when the circuit
court declined to hold an evidentiary hearing on his RCr 11.42 motion. In ground 10, Haight argues
that he was denied due process when the circuit court did not permit him to amend his RCr 11.42
motion prior to denying that motion.
In his motion for an evidentiary hearing, Haight included grounds 7 and 10 in a list of
grounds for which he does not seek an evidentiary hearing and omitted them from his list of grounds
for which he did seek an evidentiary hearing. However, in his memorandum of law supporting the
motion, Haight made reference to grounds 7 and 10. The magistrate judge stated that the omission
of grounds 7 and 10 from the list of grounds for which Haight seeks an evidentiary hearing would
alone be sufficient to deny an evidentiary hearing on those grounds (DN 128 at 30). Nevertheless,
the magistrate judge continued to note an “even more fundamental problem” with those habeas
claims. Specifically, the magistrate judge held that habeas corpus relief is not available for supposed

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deficiencies and errors in state post-conviction proceedings because such claims address collateral
matters that do not underlie the state conviction (DN 128 at 30-32).
In his objections, Haight notes that his failure to include grounds 7 and 10 in a list of claims
for which he sought an evidentiary hearing was due to inadvertence on his part (DN 131 at 2 n.1).
But he then fails to provide any argument as to why the magistrate judge’s conclusion regarding the
“even more fundamental problem” with grounds 7 and 10 is in any way wrong. Because Haight
failed to object to the magistrate judge’s conclusion that grounds 7 and 10 are not proper grounds
for habeas relief, and because the court agrees with the magistrate judge’s analysis in that respect,
Haight has not shown that he is entitled to an evidentiary hearing as to grounds 7 and 10.
VI.
For the reasons stated above, the Objection to Magistrate Whalin’s Order Denying
Petitioner’s Request for an Evidentiary Hearing filed by Petitioner Randy Haight will be overruled
by separate ordered entered herein this date.

IT IS SO ORDERED.

September 11, 2013

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