Haight v. Parker

Filing 179

MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers on 8/18/2017. Petitioner's Objection to the Magistrate Judge's Findings of Fact, Conclusions of Law, and Recommendation (DN 166 ) is OVERRULED. The Magistrate Judge's Findings of Fact, Conclusions of Law, and Recommendation (DN 160 ) is ADOPTED to the extent that it does not conflict with the opinion of this Court. Petitioner's Petition for Habeas Relief (DN 1 ) is DISMISSED. Petitioner's Motion f or Summary Judgment (DN 141 ) is DENIED. Certificates of appealability will be GRANTED for Grounds 1, 3, 4, 5, 6, 8, 9, 13, 14, 15, 18, 19, 20, 21, 31, 33, and 37. Certificates of appealability will also be GRANTED for Grounds 2, 16, 17, 27, 29, 30, 43, and 44. A certificate of appealability is DENIED as to Grounds 7, 10, 11, 12, 22, 23, 24, 25, 26, 28, 32, 34, 35, 36, 38, 39, 40, 41, 42, and 45. cc: Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:02-CV-00206-GNS-DW

RANDY HAIGHT

PETITIONER

v.

RANDY WHITE, Warden

RESPONDENT

MEMORANDUM OPINION AND ORDER
This matter comes before the Court on the Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254 (DN 1), as amended, and Petitioner’s Motion for Summary Judgment (DN
141).

The Magistrate Judge has issued Findings of Fact, Conclusions of Law, and

Recommendation (“R&R”) (DN 160) recommending that the Petitioner’s federal habeas Petition
and his Motion for Summary Judgment be denied. The Petitioner has filed his Objection to the
Report and Recommendation (DN 166). For the following reasons, the Petitioner’s Objection is
OVERRULED and the Magistrate Judge’s R&R is ADOPTED to the extent that it does not
conflict with this opinion of the Court.
I.

BACKGROUND

The Magistrate Judge’s R&R sets forth in detail the extensive procedural history and the
relevant facts of this matter, which the Court incorporates herein by reference. (R. & R. 2-15,
DN 160).

II.

JURISDICTION

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

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 Standard

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), federal
habeas corpus relief is available to state prisoners who are in custody “in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). To establish a right
to relief, a petitioner must show that the state’s highest court rejected the petitioner’s claim on
the merits, and that this rejection was: (1) “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United States,” or
(2) was “based on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” Id. § 2254(d); Harrington v. Richter, 562 U.S. 86, 98 (2011). These
standards apply regardless of whether the state court explained its reasons for rejecting a
prisoner’s claim. Harrington, 562 U.S. at 98 (“Where a state court’s decision is unaccompanied
by an explanation, the habeas petitioner’s burden still must be met by showing there was no
reasonable basis for the state court to deny relief.”).
Under the “contrary to” clause, a federal court may grant a writ of habeas corpus relief if
the state court arrives at a conclusion contrary to that reached by the United States Supreme
Court on a question of law or if the state court decides a case differently than the U.S. Supreme
Court has decided on a set of materially indistinguishable facts. Jones v. Jamrog, 414 F.3d 585,
591 (6th Cir. 2005) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).

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Under the

“unreasonable application” clause, a federal court may grant habeas corpus relief if the state
court identifies the correct governing legal principle from the U.S. Supreme Court’s decisions,
but unreasonably applies that principle to the facts. Id. (citing Williams, 529 U.S. at 409). Relief
is also available under this clause if the state court decision either unreasonably extends or
unreasonably refuses to extend a legal principle from U.S. Supreme Court precedent to a new
context. Williams, 529 U.S. at 407. The proper inquiry is whether the state court decision was
“objectively unreasonable” and not simply erroneous or incorrect. Id. at 409-11.
It is not enough that a federal court conclude in its independent judgment that the state
court decision is incorrect or erroneous. Yarborough v. Alvarado, 541 U.S. 652, 665 (2004)
(quoting Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002)). See also Holder v. Palmer, 588 F.3d
328, 337 (6th Cir. 2009) (explaining that a state court decision is not an unreasonable application
merely because the state court’s reasoning is flawed). “The state court’s application of clearly
established law must be objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003)
(citing Williams, 529 U.S. at 409). See also Renico v. Lett, 559 U.S. 766, 777-78 (2010).
AEDPA imposes a “highly deferential standard for evaluating state-court rulings, which
demands that state-court decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S.
447, 455 (2005) (quotation marks omitted) (internal citation omitted) (citation omitted). The
state court decision is evaluated using the law at the time of the petitioner’s state court conviction
became final. Williams, 529 U.S. at 379-80 (citing Teague v. Lane, 489 U.S. 288 (1989)).
When “it is possible ‘fairminded jurists could disagree’ on the correctness of the state
court’s decision,” habeas relief is unavailable.

Harrington, 562 U.S. at 101 (quoting

Yarborough, 541 U.S. at 664). For habeas relief to be granted, “a state prisoner must show that
the state court’s ruling on the claim being presented in federal court was so lacking in

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justification that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Id. at 103 (citation omitted). “The state-court
decision need not refer to relevant Supreme Court cases or even demonstrate an awareness of
them.” Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006) (citing Early v. Packer, 537 U.S. 3, 8
(2002)). “Instead, it is sufficient that the result and reasoning are consistent with Supreme Court
precedent.” Id. at 514 (citing Early, 537 U.S. at 8).
Under Section 2254(d)(2), the petitioner may obtain relief by showing the state court’s
factual finding is “an unreasonable determination of the facts in light of the evidence presented
in the State court proceeding.” Thus, Section 2254(d)(2) applies when a petitioner challenges
factual determinations by the state court. Notably, the factual findings of the state court are
presumed to be sound unless the petitioner rebuts the “presumption of correctness by clear and
convincing evidence.” Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (internal quotation marks
omitted) (quoting 28 U.S.C. § 2254(e)(1)). The U.S. Supreme Court has observed although this
deference accorded to state court findings under Section 2254(e)(1) is demanding, it is not
insatiable and it “‘does not by definition preclude relief.’” Id. at 240 (quoting Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003)). In sum, with respect to Section 2254(d)(2), “[f]actual
determinations by state courts are presumed correct absent clear and convincing evidence to the
contrary, and a decision adjudicated on the merits in a state court will not be overturned on
factual grounds unless objectively unreasonable in light of the evidence presented in the statecourt proceeding.” Miller-El, 537 U.S. at 340 (internal citation omitted) (citation omitted).
B.

Summary Judgment Standard

Fed. R. Civ. P. 56 requires the Court to grant a motion for summary judgment if “the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled

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to judgment as a matter of law.” Fed. R. Civ. P. 56(a). If a moving defendant shows that there is
no genuine issue of material fact as to at least one essential element of the plaintiff’s claim, the
burden shifts to the plaintiff to provide evidence beyond the pleadings, “set[ting] forth specific
facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351,
374 (6th Cir. 2009). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “In
evaluating the evidence, the court must draw all inferences in the light most favorable to the nonmoving party.” Moldowan, 578 F.3d at 374 (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)).
At this stage, “‘the judge’s function is not . . . to weigh the evidence and determine the
truth of the matter, but to determine whether there is a genuine issue for trial.’” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). But “[t]he mere existence of a
scintilla of evidence in support of the [non-moving party’s] position will be insufficient,” and the
party’s proof must be more than “merely colorable.” Anderson, 477 U.S. at 252. An issue of
fact is “genuine” only if a reasonable jury could find for the non-moving party. Moldowan, 578
F.3d at 374 (citing Anderson, 477 U.S. at 252).
C.

Objection to the Magistrate Judge’s R&R

When an objection is made to a magistrate judge’s report and recommendation, a district
judge “must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.

The district judge may accept, reject, or modify the recommended

disposition; receive further evidence; or return the matter to the magistrate judge with
instructions.” Fed. R. Civ. P. 72(b)(3). “[V]erbatim regurgitation of the arguments made in
earlier filings are not true objections.”

Bushner v. Larose, No. 5:14CV00385, 2017 WL

1199160, at *2 (N.D. Ohio Mar. 31, 2017). When an “objection” merely states disagreement

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with the magistrate judge’s suggested resolution, it is not an objection for the purposes of this
review. Cvijetinovic v. Eberlin, 617 F. Supp. 2d 620, 632 (N.D. Ohio 2008), rev’d on other
grounds, 617 F.3d 833 (6th Cir. 2010). The Sixth Circuit has stated that “[o]verly general
objections do not satisfy the objection requirement.” Spencer v. Bouchard, 449 F.3d 721, 725
(6th Cir. 2006), abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007) (citations
omitted).

Only specific objections are entitled to de novo review; vague and conclusory

objections amount to a complete failure to object as they are not sufficient to pinpoint those
portions of the magistrate judge’s report and recommendation that are legitimately in contention.
Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “The objections must be clear enough to
enable the district court to discern those issues that are dispositive and contentious.” Miller v.
Currie, 50 F.3d 373, 380 (6th Cir. 1995) (citation omitted). “‘[O]bjections disput[ing] the
correctness of the magistrate’s recommendation but fail[ing] to specify the findings . . . believed
[to be] in error’ are too general.” Spencer, 449 F.3d at 725 (alterations in original) (quoting
Miller, 50 F.3d at 380).
New arguments raised for the first time in a petitioner’s objection to a magistrate judge’s
report and recommendation are considered waived. See Murr v. United States, 200 F.3d 895,
902 n.1 (6th Cir. 2000) (citing approvingly several courts which have held that, absent
compelling reasons, “the Magistrate Judge Act . . . does not allow parties to raise at the district
court stage new arguments or issues that were not presented to the magistrate [judge].” (citation
omitted)). Courts have applied this general rule in the habeas corpus context. See Sanders v.
Kelly, No. 5:09CV01272, 2012 WL 2568186, at *9 (N.D. Ohio June 29, 2012) (holding that
petitioner’s newly raised ineffective assistance of counsel claims in objections to a report and
recommendation on habeas petition are “not properly before the Court.”). See also Brewer v.

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Bottom, No. 10-26-KSF, 2012 WL 404878, at *8 (E.D. Ky. Feb. 8, 2012) (rejecting petitioner’s
claim in habeas petition raised for the first time in objections to the report and recommendation
and noting that “[t]hese reasons alone are sufficient grounds to reject [the petitioner’s]
objection.”). “[A]llowing parties to litigate fully their case before the magistrate [judge] and, if
unsuccessful, to change their strategy and present a different theory to the district court would
frustrate the purpose of the Magistrates Act.” Greenhow v. Sec’y of Health & Human Servs., 863
F.2d 633, 638 (9th Cir. 1988), overruled on other grounds by United States v. Hardesty, 977
F.2d 1347 (9th Cir. 1992).
D.

Certificate of Appealability

Under the AEDPA, a decision of this Court may not be appealed to the Sixth Circuit
absent a certificate of appealability. See 28 U.S.C. § 2253(c)(1). “A certificate of appealability
may issue . . . only if the applicant has made a substantial showing of the denial of a
constitutional right.”

Id. § 2253(c)(2).

“To obtain a [certificate of appealability] under §

2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional
right, a demonstration that . . . includes showing that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different manner or that
the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4
(1983)).
Where a court has rejected a petitioner’s constitutional claim on the merits, the petitioner
must demonstrate “that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong” to satisfy Section 2253(c). Id. at 484. A certificate of
appealability should be issued when a writ of habeas corpus is denied on procedural grounds and

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the petitioner can demonstrate that: (1) “jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right” and (2) “jurists of reason
would find it debatable whether the district court was correct in its procedural ruling.” Id.
“Where a plain procedural bar is present and the district court is correct to invoke it to dispose of
the case, a reasonable jurist could not conclude either that the district court erred in dismissing
the petition or that the petitioner should be allowed to proceed further.” Id.
IV.

DISCUSSION

In his Objection, Petitioner Randy Haight (“Haight”) raises issues relating to the
Magistrate Judge’s review of his plea agreement, his ineffective assistance of counsel claims,
jury selection, the death penalty, his post-conviction proceedings, the jury instructions and
verdict form, prosecutorial misconduct, and several miscellaneous matters. Each issue will be
addressed in turn.
A.

Plea Agreement Issues
1.

Ground 1:
Agreement

Due Process and Specific Enforcement of the Plea

In Ground 1, Haight contends that due process requires the specific enforcement of his
1986 plea agreement entered in the Garrard Circuit Court. (Pet’r’s Mem. Supp. Pet. 19-28, DN
61 [hereinafter Pet’r’s Mem. Supp.]; Pet’r’s Reply Resp. Pet. 11-14, DN 142 [hereinafter Pet’r’s
Reply]; Pet’r’s Mot. Summ. J. 18-35, DN 141).1 Specifically, Haight argues that his plea of
guilty to charges of murder, which the Kentucky Supreme Court set aside in Haight I, rendered

1

Pages 18-35 of Haight’s motion for summary judgment incorporate all of his plea-agreementrelated claims contained in Grounds 1, 2, 3, 4, and 33 of the Petition. (Pet’r’s Mot. Summ. J. 1835).
8

impossible any opportunity for him subsequently to obtain a fair trial. (Pet’r’s Mot. for Summ. J.
18-35 (citing Haight v. Commonwealth, 760 S.W.2d 84, 89 (Ky. 1988) (Haight I)).2
Central to Haight’s due process argument is the language in the plea agreement in which
the Commonwealth promised to take no action inconsistent with the agreement.3 Haight II, 833
S.W.2d at 824.

He claims that the plea agreement was an enforceable contract with

constitutional implications, thus the Commonwealth was bound by the plea agreement and
barred from seeking the death penalty on remand. Both Haight I and Haight II rejected Haight’s
argument for specific enforcement of the 1986 plea agreement. Haight I, 760 S.W.2d at 88;
Haight II, 833 S.W.2d at 824. The court reasoned that there was no breach of an agreement to

2

Haight pled guilty in the Garrard Circuit Court in 1986, in exchange for the prosecutor’s
recommendation of a sentence of life without parole for 25 years. The trial court accepted
Haight’s plea, but disregarded the recommendation and sentenced him to death. The Kentucky
Supreme Court vacated the conviction on the ground that the trial court should not have accepted
a guilty plea premised on the parties’ “understanding” that the court would sentence in
accordance with the agreement when in fact the court retained its discretion in sentencing.
Haight I, 760 S.W.2d at 89. Haight then sought to enforce the plea agreement, but to no avail.
Haight v. Williamson, 833 S.W.2d 821 (Ky. 1992) (Haight II), cert. denied, 507 U.S. 925 (1993).
He was subsequently tried, convicted on all counts, and sentenced to death in 1994. The
convictions and penalties were affirmed on direct review, and the state courts denied postconviction relief. Haight v. Commonwealth, 938 S.W.2d 243 (Ky. 1996) (Haight III), cert.
denied, 522 U.S. 873 (1997); Haight v. Commonwealth, 41 S.W.3d 436 (Ky. 2001) (Haight IV),
cert. denied, 534 U.S. 998 (2001). Haight then filed this Petition pursuant to 28 U.S.C. § 2254.
This Court stayed this case to allow Haight to exhaust his state remedies with respect to certain
of his claims for relief. (Order, DN 27). The Kentucky Supreme Court subsequently refused to
consider those issues on the ground that Haight had failed to raise them in his initial state
collateral proceeding. Haight v. Commonwealth, No. 2006-SC-000344-MR, 2007 WL 2404494
(Ky. Aug. 23, 2007) (Haight V).
3
Haight’s plea agreement provided:
It is the understanding of the defendant, and the same is hereby assured by the
Commonwealth, that the above-stated sentence recommendation is, and will be
presented to the Court, as a sincere and genuine request for imposition of the
recommended sentence [25 years to life without parole] and that the
Commonwealth will take no action inconsistent therewith.
(R. & R. 27 (citation omitted)).
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warrant specific enforcement because “the Commonwealth consistently presented the
recommended sentence found within the 1986 plea agreement at the initial trial.” Haight II, 833
S.W.2d at 824. See also Haight I, 760 S.W.2d at 88.
In the present action, Haight contends that the Kentucky Supreme Court’s reasoning is an
unreasonable application of the facts because there was a breach of the plea agreement and thus,
the Kentucky Supreme Court’s decision to disallow specific performance of that agreement is
contrary to fundamental principles of federal law as announced in Santobello v. New York, 404
U.S. 257, 260 (1971). The Magistrate Judge concluded that: (i) the Kentucky Supreme Court’s
holding that the Commonwealth did not breach the plea agreement was not an unreasonable
application of the facts; (ii) Santobello was not unreasonably applied by the Kentucky Supreme
Court; and (iii) federal courts do not possess supervisory authority over state courts to impose
specific performance even if the Kentucky Supreme Court unreasonably applied the facts of the
case in finding that the Commonwealth had not breached the agreement. (R. & R. 26-41).
Haight objects to the Magistrate Judge’s conclusion that the Kentucky Supreme Court’s
determination that the plea agreement had not been breached was not objectively unreasonable.
Haight argues that the Magistrate Judge misconstrued the issue in deciding that there was not a
breach because the Magistrate Judge did not consider the Commonwealth’s actions on appeal or
the Commonwealth’s opposition of Haight’s Motion to Enforce Plea Agreement. (Pet’r’s Obj.
R. & R. 9, DN 66 [hereinafter Pet’r’s Obj.]).
The Court reiterates that in determining Haight’s habeas corpus claim the question is not
whether this Court could find a breach of the plea agreement, but whether the Kentucky Supreme
Court’s finding of no breach was objectively unreasonable. See 28 U.S.C. § 2254(e)(1). In this
regard, the factual findings of the state court are presumed correct. Id. Section 2254(d)(2) has

10

been interpreted as precluding a federal court from “set[ting] aside reasonable state-court
determinations of fact in favor of its own debatable interpretation of the record . . . .” Rice v.
Collins, 546 U.S. 333, 335 (2006). In Haight II, the Kentucky Supreme Court ruled that the plea
agreement was not breached, despite the Commonwealth’s opposition on appeal, because the
Commonwealth honored the plea agreement through the original trial. Haight II, 833 S.W.2d at
824. Haight has failed to show how this is an objectively unreasonable determination of fact by
the Kentucky Supreme Court or is contrary to or an unreasonable application of federal law.
Moreover, as recognized by the Magistrate Judge, even if this Court were to determine
that the plea agreement had been breached, Haight cannot show that he would be entitled to
specific performance. (R. & R. 36-37). Haight contends that the Kentucky Supreme Court’s
failure to order specific performance was a clearly unreasonable application of Santobello.
(Pet’r’s Obj. 7). The U.S. Supreme Court in Santobello held that the remedies for a breach of a
plea agreement are either specific performance of the agreement or rescission of the entire
agreement and withdrawal of the guilty plea, to be fashioned by the state court based on what
“the circumstances of [the] case require.” Santobello, 404 U.S at 263. Citing Santobello, the
Haight I decision vacated the judgment of the original trial court, vacated Haight’s guilty plea,
and reinstated all charges in the indictment as originally returned by the grand jury. Haight I,
760 S.W.2d at 89. Haight was allowed to withdraw his guilty plea after the trial court originally
refused to let him withdraw from the agreement; thus, Haight sought and was granted one of the
available remedies under Santobello. In this regard, the Kentucky Supreme Court in Haight I
directly complied with Santobello, as it had the discretion to choose the most appropriate remedy
based on the circumstances of the case. Santobello, 404 U.S. at 263. See also Fox v. Johnson,
832 F.3d 978, 988 (9th Cir. 2016) (“But, here, rather than seek specific performance, Fox chose

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to withdraw her guilty plea, voiding the plea agreement. She sought one of the remedies under
Santobello, and received it. Even if she had sought specific performance, Santobello ‘leave[s] to
the discretion of the state court’ whether the circumstances of the case require specific
performance or an opportunity to withdraw the plea. No binding Supreme Court decision finds a
constitutional violation when a state court chooses the remedy a petitioner expressly chose or
when she maintains her innocence of the original charges.” (alteration in original) (internal
citation omitted)).
Accordingly, the Court overrules Haight’s Objection to the R&R regarding Ground 1 of
the Petition. After conducting de novo review and finding no error as to the reasoning of the
Magistrate Judge, the R&R is adopted as to Ground 1. The Magistrate Judge also recommended
the issuance of a certificate of appealability on this ground; however, the Court concludes that
reasonable jurists could not debate that the Kentucky Supreme Court directly complied with
Santobello when it allowed Haight to withdraw his guilty plea.
2.

Ground 2: Vindictive Prosecution

In Ground 2, Haight claims that the decision of the Commonwealth to seek the death
penalty following his initial successful appeal was presumptively vindictive in violation of the
Eighth and Fourteenth Amendments. (Pet’r’s Mem. Supp. 29; Pet’r’s Mot. Summ. J. 18-35).
The Magistrate Judge concluded that Haight did not demonstrate that clearly established
precedent of the United States Supreme Court was unreasonably applied or is clearly contrary to
the Kentucky state court’s decisions in Haight I, Haight II, or Haight III. In his Petition, Haight
mainly relies upon an Illinois Supreme Court case and did not cite to any U.S. Supreme Court
precedent that would support his argument. (R. & R. 42; Pet’r’s Mem. Supp. 29-31). Haight
objects to the Magistrate Judge’s conclusion and mentions, for the first time, that the Kentucky

12

Supreme Court’s ruling was an unreasonable application of North Carolina v. Pearce, 395 U.S.
711(1969), overruled in part by Alabama v. Smith, 490 U.S. 794, 801 (1989); Wayte v. United
States, 470 U.S. 598 (1985); and Blackledge v. Perry, 417 U.S. 21, 28 (1974). This injection of
U.S. Supreme Court precedent into his argument, however, does not change the outcome.
While a court may constitutionally impose a greater sentence upon a defendant after a
successful appeal, the imposition of such a greater sentence cannot be based upon vindictiveness.
Pearce, 395 U.S. at 719-25. “[T]he Due Process Clause is not offended by all possibilities of
increased punishment . . . but only by those that pose a realistic likelihood of ‘vindictiveness.’”
Blackledge, 417 U.S. at 27. The U.S. Supreme Court has stressed that in cases dealing with
pretrial prosecutorial decisions, “a mere opportunity for vindictiveness is insufficient to justify
the imposition of a prophylactic rule.” United States v. Goodwin, 457 U.S. 368, 384 (1982);
Bordenkircher v. Hayes, 434 U.S. 357 (1978). The standard itself, however, is an objective
one—whether a reasonable person would think there existed a realistic likelihood of
vindictiveness. United States v. Andrews, 633 F.2d 449, 454 (6th Cir. 1980). Where the
presumption of vindictiveness does not arise, the defendant bears the burden of proving actual
vindictiveness. See Wasman v. United States, 468 U.S. 559, 569 (1984).4

4

The Magistrate Judge concluded that Haight’s argument was defeated by Alabama v. Smith.
(R. & R. 46). In Smith, the U.S. Supreme Court held that “there is no basis for a presumption of
vindictiveness where a second sentence imposed after a trial is heavier than a first sentence
imposed after a guilty plea . . . .” Smith, 490 U.S. at 803. Yet, the Sixth Circuit has noted that
Smith did not involve a question of prosecutorial vindictiveness, as is at issue here, but rather an
issue of judicial vindictiveness. Turner v. Tennessee, 940 F.2d 1000, 1002 (6th Cir. 1991).
Thus, in Turner, the Sixth Circuit held that Smith was clearly distinguishable from the facts
where the issue centered around the vindictiveness of the prosecutor, not the sentencing judge.
Further, the Sixth Circuit held that nothing in Smith disturbed the U.S. Supreme Court’s prior
holding in Goodwin, which requires a presumption of vindictiveness if it is shown that there was
“a realistic likelihood of vindictiveness” on the part of the prosecutor. Goodwin, 457 U.S. at 384
(citing Blackledge, 417 U.S. at 27). Accordingly, the Magistrate Judge’s reliance on Smith is
misplaced.
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The Magistrate Judge determined that Ground 2 failed on the merits because there was no
presumption of prosecutorial vindictiveness, and therefore the Kentucky Supreme Court’s denial
of Haight’s claim was not an unreasonable application of clearly established U.S. Supreme Court
law. (R. & R. 43-44). In his Objection, Haight argues that a presumption of vindictiveness arose
because the Commonwealth’s decision to seek the death penalty following Haight I demonstrates
a realistic likelihood of vindictiveness as there was no change in circumstances or new evidence
between the original plea offer of 25 years to life without parole and the Commonwealth’s
decision to seek the death penalty after the initial successful appeal. (Pet’r’s Obj. 12). The
Kentucky Supreme Court in Haight II held:
With reinstatement of the original indictment and [Haight’s] entry of a plea of not
guilty to these charges, [Haight] returned to the place he was in before the plea
agreement was entered.
The Commonwealth exhibits no prosecutorial
vindictiveness for there is no appearance of retaliation when a defendant is placed
in the same position as he was in before he accepted the plea bargain.
Haight II, 833 S.W.2d at 824 (citing United States v. Anderson, 514 F.2d 583, 588 (7th Cir.
1975)). Although this holding does not expressly state that there was no “realistic likelihood” of
vindictiveness, the Kentucky Supreme Court’s holding determined that there was no such
likelihood of prosecutorial vindictiveness. See Slagle, 457 F.3d at 513 (noting that a state court
decision need not refer to U.S. Supreme Court cases as long as the results and reasoning of the
state court are consistent with U.S. Supreme Court precedent) (citing Early, 537 U.S. at 8).
This Court finds that the Kentucky Supreme Court’s holding did not unreasonably apply
U.S. Supreme Court precedent. “A prosecutor should remain free before trial to exercise the
broad discretion entrusted to him to determine the extent of the societal interest in prosecution.
An initial decision should not freeze future conduct.” Goodwin, 457 U.S. at 382. Haight’s
argument that the Commonwealth possessed a reasonable likelihood of vindictiveness is based

14

solely on the fact that there was not a change of circumstances between the first plea and the
sentence sought on remand to warrant the increased penalty. 5 However, because Haight’s guilty
plea was vacated in Haight I, the Commonwealth was not bound by the original plea agreement
and retained discretion to seek any available sentence, just as Haight was free to plead not guilty
and take his case to trial. See also United States v. Cooks, 52 F.3d 101, 106 (5th Cir. 1995) (“As
there is no presumption of prosecutorial vindictiveness attendant in the exercise of admittedly
discretionary actions, [the defendant’s] failure to offer any tangible evidence in support of his
vindictiveness claim dooms it to failure.”).

See also Goodwin, 457 U.S. at 384 (“[M]ere

opportunity for vindictiveness is insufficient . . . .”). As in Cooks, Haight has presented no
tangible evidence of prosecutorial vindictiveness.
Moreover, following vacation of the original plea agreement the Commonwealth did not
attempt to charge Haight with any crime other than capital murder, the same crime charged in the
original indictment. See Jordan v. Epps, 756 F.3d 395, 406-07 (5th Cir. 2014) (holding that
there was no presumption of prosecutorial vindictiveness in the prosecutor’s refusal to make a
plea agreement for a sentence of life in prison for a second time, rather than seek the death
penalty, because the prosecutor did not attempt to charge defendant with any crime other than the

5

In Haight’s Objection, he articulates a reason why the Commonwealth chose to seek death after
the vacation of the plea agreement. (Pet’r’s Obj. 13). See Adamson v. Ricketts, 865 F.2d 1011,
1019 (9th Cir. 1988), abrogated on other grounds by Walton v. Arizona, 497 U.S. 639 (1990)
(“Once the presumption of vindictiveness is raised, the burden shifts to the prosecution to rebut it
by presenting evidence of independent reasons or intervening circumstances which demonstrate
that the prosecutor’s decision was motivated by a legitimate purpose.” (citations omitted)).
Haight discloses that the Commonwealth’s stated reason for its decision was that the opinion of
the victims’ families had changed in regard to advocating the death penalty. (Pet’r’s Obj. 13).
Thus, even if the Court was to find that a presumption of vindictiveness did exist, Petitioner
recognizes that the Commonwealth provided an independent, objective reason for seeking the
death penalty to rebut any presumption of vindictiveness. See Adamson, 865 F.2d at 1019.
15

original capital murder charge). Thus, the Commonwealth’s decision to seek death does not
warrant a presumption of vindictiveness.
Under these circumstances, Haight has not demonstrated that the Kentucky Supreme
Court’s holding was an objectively unreasonable application of Pearce, Wayte, or Blackledge.
Therefore, this claim for relief will be denied. Yet, the Court does find that a certificate of
appealability should be issued because jurists of reason could disagree as to the merits of this
claim.

Significantly, the Ninth Circuit, sitting en banc, has held that “a presumption of

prosecutorial vindictiveness is warranted” in a situation where the prosecutor asked the court to
impose a sentence other than death, but after the defendant’s successful appeal the prosecutor
rebuffed the plea offer and insisted on seeking the death penalty. Adamson, 865 F.2d at 1018.
This demonstrates that jurists of reason could disagree, and in fact have disagreed, as to whether
a presumption of prosecutorial vindictiveness should arise in the present context. Accordingly, a
certificate appealability as to Ground 2 will be issued.
3.

Ground 3: Double Jeopardy Clause

In Ground 3, Haight argues that the Fifth Amendment’s Double Jeopardy Clause barred
his subsequent death sentence. (Pet’r’s Mem. Supp. 31-33; Pet’r’s Mot. for Summ. J. 18-35).
Addressing Haight’s double jeopardy argument, the Kentucky Supreme Court explained that:
Appellant’s double jeopardy claim has been reviewed and determined to be
without merit. The essence of this claim is that upon the prior guilty plea and
death sentence, jeopardy attached. Because RCr 9.84 precluded imposition of the
death penalty, the argument goes, appellant was “implicitly acquitted.”
The error of the trial court was not the type and kind which preclude reprosecution. The conduct of the trial court was ambiguous and misleading by
virtue of a desire to accommodate counsel for both sides. There was no indication
of malicious or deliberate misleading. The trial court simply made an error which
was corrected on appeal. Double jeopardy principles do not preclude further
prosecution with all lawful punishments being available. In Simpson v.

16

Commonwealth, 759 S.W.2d 224, 228 (Ky. 1988), we answered appellant’s
double jeopardy claim as follows:
It was appellant who moved the court to withdraw his guilty plea
and his confession made during the plea proceeding. Such
constitutes a waiver of his constitutional protection against double
jeopardy for the purpose of trial on the charge in the indictment.
Haight III, 938 S.W.2d at 252 (internal citations omitted) (quoting Simpson, 759 S.W.2d at 228).
The Magistrate Judge concluded that Haight III was neither contrary to nor an
unreasonable application of any clearly established U.S. Supreme Court precedent relating to the
Double Jeopardy Clause.

(R. & R. 51).

Haight’s objection mostly states his general

disagreement with Haight III and the Magistrate Judge’s findings. See Cvijetinovic, 617 F. Supp.
2d at 632 (“Near verbatim regurgitation of the arguments made in earlier filings are not true
objections.” (citation omitted)). In interjecting these same arguments, Haight argues that the
Magistrate Judge misconstrued his position. (Pet’r’s Obj. 15). Haight asserts that his position is
not that the Commonwealth should be completely barred from re-prosecution of the guilt phase
of his trial, but that the Double Jeopardy Clause barred the Commonwealth from seeking the
death penalty after remand from Haight I. (Pet’r’s Obj. 17). Specifically, Haight contends that
while his voluntary withdrawal of his guilty plea may have removed his re-prosecution from
jeopardy, the trial court’s “abuse of discretion in denying Haight’s right under [Kentucky Rule of
Criminal Procedure (“RCr”)] 9.84 to a jury at sentencing triggers the protections of the Double
Jeopardy Clause and bars re-sentencing for death.” (Pet’r’s Obj. 18). Thus, Haight contends the
Kentucky Supreme Court’s holding was an unreasonable application of United States v. Jorn,
400 U.S. 470 (1971).
Jorn invoked the right to the original jury because “the defendant has a significant
interest in the decision whether or not to take the case from the jury when circumstances occur

17

which might be thought to warrant a declaration of mistrial.” Jorn, 400 U.S. at 485 (“When one
examines the circumstances surrounding the discharge of this jury, it seems abundantly apparent
that the trial judge made no effort to exercise a sound discretion to assure that, taking all the
circumstances into account, there was a manifest necessity for the sua sponte declaration of this
mistrial.” (citation omitted)). In the present case, at the original trial the case was never taken
from the jury because no jury was ever sworn in. Since Jorn involves the rights of a defendant in
the context of a mistrial after a jury is impaneled and does not address the issue of the
discretionary sentencing decision of a trial judge where no jury was ever seated, Jorn is wholly
inapplicable here. Therefore, the Court holds that the Kentucky Supreme Court’s ruling was not
an objectively unreasonable application of Jorn.
Further, as to Haight’s argument that the Double Jeopardy Clause applied to his
sentencing, clearly established federal law holds that this clause only pertains to sentencing
proceedings in limited scenarios. Haight has not shown that the Double Jeopardy Clause applied
to the sentencing proceedings before the original trial court. The Fifth Amendment’s Double
Jeopardy Clause provides that “[n]o person shall . . . be subject for the same offence to be twice
put in jeopardy of life or limb . . . .” U.S. Const. amend. V. The protections of the Double
Jeopardy Clause attach once a court accepts a defendant’s guilty plea. Ricketts v. Adamson, 483
U.S. 1, 8 (1987). Generally, “the Double Jeopardy Clause imposes no absolute prohibition
against the imposition of a harsher sentence at retrial after a defendant has succeeded in having
his original conviction set aside.” Bullington v. Missouri, 451 U.S. 430, 438 (1981) (citations
omitted). A narrow exception to this rule holds that the Double Jeopardy Clause does apply to
capital-sentencing proceedings that “have the hallmarks of [a] trial on guilt or innocence.” Id. at
438. “[A]lthough sentencing proceedings ordinarily are governed by discretionary judgments,

18

the Double Jeopardy Clause applies to any sentencing proceeding that explicitly requires the jury
to determine whether the prosecution has proved its case.” Harrison v. Gillespie, 640 F.3d 888,
897 (9th Cir. 2011) (internal quotation marks omitted) (quoting Bullington, 451 U.S. at 444).
“[T]he touchstone for double-jeopardy protection in capital-sentencing proceedings is whether
there has been an acquittal.” Sattazahn v. Pennsylvania, 537 U.S. 101, 109 (2003) (internal
quotation marks omitted) (citation omitted). “Absent an ‘acquittal’ in which the factfinder
concludes that the prosecution failed to ‘prove[] its case,’ the Double Jeopardy Clause does not
bar a retrial.” Harrison, 640 F.3d at 897 (internal quotation marks omitted) (quoting Poland v.
Arizona, 476 U.S. 147, 156-57 (1986)).
Haight’s argument in this regard misses the mark. This scenario does not fall within the
exception to the general rule allowing imposition of a harsher sentence upon retrial. First, the
trial court initially imposed a death sentence, the same sentence subsequently imposed upon
remand.

Further, the sentencing proceedings in the original trial court did not “have the

hallmarks of [a] trial on guilt or innocence” because the sentencing decision was made by the
trial judge; no jury was ever impaneled. Bullington, 451 U.S. at 439. See also Harrison, 640
F.3d at 897 (rejecting the theory that the Double Jeopardy Clause applied to a judge’s
discretionary decision to impose a life sentence because “the defendant’s life sentence had been
imposed by operation of a statute rather than the jury’s factual conclusion that the state had not
proven its case.” (citing Sattazahn, 537 U.S. at 109-10)). Haight points out that RCr 9.84
requires a jury to decide the appropriate punishment in capital cases.6 There is no question that

6

The Kentucky Supreme Court has held that the procedural hallmarks that were present in
Bullington to prevent a harsher sentence on remand are not present in Kentucky’s capital
sentencing procedures. Hilbert v. Seay, No. 2008-SC-000312-OA, 2008 WL 3890410, at *9
(Ky. Aug. 21, 2008). The court determined that Kentucky’s capital sentencing procedure does
not serve as an “implied acquittal” and jeopardy does not attach to a capital defendant’s earlier,
19

the trial judge at Haight’s sentencing did not impanel a jury, but instead made the unilateral
decision to sentence Haight to death. Any error with this decision was corrected in Haight I.
Clearly, Haight did not initially go through a trial-like process that was resolved in his favor so
as to invoke double-jeopardy protection.
There is nothing to suggest that the state court decision was contrary to or an objectively
unreasonable application of clearly established federal law to the facts of this case. Accordingly,
after conducting a de novo review of the R&R, the Court holds that the R&R in regard to Ground
3 is adopted and Haight’s Objection is overruled.

The Magistrate Judge recommended a

certificate of appealability be issued as to Ground 3; however, the Court believes that reasonable
jurists could not disagree that the protections against double jeopardy do not apply to the present
situation as Haight was not sentenced to an earlier, lighter sentence by a jury with the “hallmarks
of a trial on guilt or innocence.” Bullington, 451 U.S. at 438.
4.

Ground 4: Arbitrary, Capricious and Discriminatory Death Sentence

Haight claims in Ground 4 of his Petition that his death sentence was arbitrarily,
capriciously, and discriminatorily applied in violation of the Eighth Amendment. (Pet’r’s Mem.
Supp. 33-35; Pet’r’s Reply 11-24; Pet’r’s Mot. Summ. J. 18-35). The Haight III decision held
that the vacation of Haight’s guilty plea in Haight I remedied any arbitrary and capricious death
sentence. Haight III, 938 S.W.2d at 250-51. The Magistrate Judge held that Haight III was not
an unreasonable application of clearly established federal law. (R. & R. 55). In Haight’s
Objection, he argues that the Magistrate Judge focused on the imposition of the death sentence
by the original trial judge and ignored the argument that the Commonwealth violated the Eighth

lighter sentence. Id. Thus, under Kentucky law jeopardy would not attach to Haight’s original
sentence even if he had been sentenced by a jury of his peers. See Commonwealth v. Eldred, 973
S.W.2d 43, 48-49 (Ky. 1998).
20

Amendment by seeking the death penalty arbitrarily after Haight’s appeal was successful in
Haight I. (Pet’r’s Obj. 18-19). In support, Haight cites to Godfrey v. Georgia, 446 U.S. 420
(1980); Duncan v. Louisiana, 391 U.S. 145, 156 (1968); and Wayte v. United States, 470 U.S.
598 (1985).
Haight has failed to show how the Kentucky Supreme Court unreasonably applied any of
the above-cited decisions of the United States Supreme Court. As the Magistrate Judge noted,
reversal of the original conviction “wiped the slate clean” and the Commonwealth was free to
seek whatever sentence it chose, just as Haight was free to plead not guilty. Haight correctly
notes that “the decision to prosecute may not be deliberately based upon an unjustifiable standard
such as race, religion, or other arbitrary classification”; however, Haight has not shown how the
Commonwealth’s decision to seek the death penalty after Haight I was based on any such
classification.

Wayte, 470 U.S. at 608 (internal quotation marks omitted) (quoting

Bordenkircher, 434 U.S. at 364).
Based on the record before the state courts, there is nothing to suggest that the state court
decision was contrary to or an objectively unreasonable application of clearly established federal
law to the facts of this case. Accordingly, the Court finds Haight’s Objection of no avail and
after de novo review adopts the Magistrate Judge’s recommendation to deny relief as to Ground
4. Further, although contrary to the Magistrate Judge’s recommendation, the Court concludes
that a certificate of appealability is not warranted as to this ground for relief. The Court does not
find that reasonable jurists could debate that Haight has failed to show a denial of any
constitutional right as he has provided no support for the argument that the imposition of the
death penalty was “based upon an unjustifiable standard such as race, religion, or other arbitrary

21

classification . . . .”

Wayte, 470 U.S. at 608 (internal quotation marks omitted) (quoting

Bordenkircher, 434 U.S. at 364).
5.

Ground 33: Irrevocable Prejudice

In Ground 33, Haight argues that the imposition of his capital sentence is unconstitutional
due to the irrevocable prejudice that flowed from his plea of guilty in the initial proceeding.
(Pet’r’s Mem. Supp. 26-47; Pet’r’s Reply 11-14; Pet’r’s Mot. Summ. J. 18-35). The Magistrate
Judge, in a lengthy analysis, found that decisions in Haight I, Haight II, and Haight III regarding
irrevocable prejudice were not contrary to or an unreasonable application of any clearly
established decision of the U.S. Supreme Court. (R. & R. 64). Moreover, the Magistrate Judge
noted Haight’s failure to cite to any U.S. Supreme Court precedent which was arguably applied
unreasonably. (R. & R. 62). Haight’s Objection to this finding reflects mere disagreement with
the Magistrate Judge’s conclusion. (Pet’r’s Obj. 20-23).
Haight takes issue with the Magistrate Judge’s ruling that the passage of time and pretrial
publicity did not cause Haight irrevocable prejudice. (Pet’r’s Obj. 20). In his Objection, Haight
avers Herrera v. Collins, 506 U.S. 390 (1993), and Sheppard v. Maxwell, 384 U.S. 333 (1966),
support his instant claims; however, he does not explain how these cases were unreasonably
applied by the Kentucky Supreme Court.7 (Pet’r’s Obj. 20-21). Juror bias caused by pre-trial
publicity, specifically a newspaper article, was explored in depth by the trial court during voir

7

The Court cannot perceive how Herrera or Sheppard would apply. Herrera concerns claims of
actual innocence based on newly discovered evidence. Although Sheppard does concern pretrial publicity and a defendant’s right to a fair trial, Haight has failed to explain how the
affirmance of the trial court’s finding that the jurors were unaffected by pre-trial publicity in
Haight III was “clearly erroneous.” See Sumner v. Mata, 455 U.S. 591, 597 (1982) (noting that
the AEDPA “requires the federal courts to show a high measure of deference to the factfindings
made by the state courts.”).
22

dire and during an evidentiary hearing. These findings were upheld in Haight III, and Haight has
not shown them to be objectively unreasonable findings of fact. Haight III, 938 S.W.2d at 246.
Accordingly, Haight’s Objection is overruled, and, based on this Court’s de novo review,
the portion of the R&R pertaining to Ground 33 is adopted.

While the Magistrate Judge

recommended issuance of a certificate of appealability, the Court concludes that reasonable
jurists could not debate the resolution of this ground for relief in the complete absence of any
evidence cited by Petitioner to meet his burden to overcome the presumption of correctness
afforded to the state court’s finding of no irrevocable prejudice.
B.

Ineffective Assistance of Counsel Claims

To establish ineffective assistance of counsel, Haight must show that his counsel
provided deficient performance and such deficient performance prejudiced his defense so as to
render the trial unfair and the result unreliable. Strickland v. Washington, 466 U.S. 668, 687
(1984). Under AEDPA, a state court’s ruling on ineffective assistance of counsel claims will
only be disturbed if it is an unreasonable application of Strickland. Bell v. Cone, 535 U.S. 685,
693-94 (2002) (citation omitted). Focusing on the performance component, the U.S. Supreme
Court explained “[w]hen a convicted defendant complains of the ineffectiveness of counsel’s
assistance, the defendant must show that counsel’s representation fell below an objective
standard of reasonableness.” Strickland, 466 U.S. at 687-88. The reviewing court’s scrutiny of
counsel’s performance is highly deferential; indeed, “the court should recognize that counsel is
strongly presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Id. at 90. The reviewing court must also not
indulge in hindsight, but must evaluate the reasonableness of counsel’s performance within the

23

context of the circumstances at the time of the alleged errors. Id. at 690; Cobb v. Perini, 832
F.2d 342, 347 (6th Cir. 1987).
To satisfy the prejudice prong of the Strickland test, “[t]he defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694. A “[p]etitioner is not
entitled to a presumption of prejudice unless it can be said that his counsel ‘fail[ed] meaningfully
to oppose the prosecution’s case.’” Lundgren v. Mitchell, 440 F.3d 754, 775 (6th Cir. 2006)
(quoting Florida v. Nixon, 543 U.S. 175, 179 (2004)). Where “one is left with pure speculation
on whether the outcome of the trial or the penalty phase could have been any different,” there is
an insufficient showing of prejudice. Baze v. Parker, 371 F.3d 310, 322 (6th Cir. 2004) (citing
McQueen v. Scroggy, 99 F.3d 1302, 1321 (6th Cir. 1996)).
“A petitioner procedurally defaults claims for habeas relief if the petitioner has not
presented those claims to the state courts in accordance with the state’s procedural rules.”
Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000) (citations omitted). An “independent and
adequate state ground” will bar consideration of those federal claims in a federal habeas corpus
proceeding that have been defaulted under state law, unless the default is excused. Coleman v.
Thompson, 501 U.S. 722, 753 (1991); Brown v. Allen, 344 U.S. 443, 486-87 (1953). A default
will be excused if the petitioner is able to demonstrate cause for the default and prejudice
resulting therefrom or, alternatively, that manifest injustice will result from the conviction of one
who is factually innocent if the claim is not addressed. Sutton v. Carpenter, 745 F.3d 787, 79091 (6th Cir. 2014).

24

To establish “cause,” a petitioner must demonstrate that something external to him
impeded his efforts to comply with the state’s procedural rules. Coleman, 501 U.S. at 729-30. A
petitioner can establish “cause” by showing his counsel’s failure to raise the claim before the
state court was an error of such magnitude that it rendered counsel’s performance ineffective and
in violation of the Sixth Amendment.

Murray v. Carrier, 477 U.S. 478, 488-89 (1986)).

Notably, in Coleman, the Supreme Court made the unqualified pronouncement that ineffective
assistance by counsel during state post-conviction proceedings does not establish “cause” for a
procedural default because there is no constitutional right to an attorney in such proceedings.
Coleman, 501 U.S. at 752-54 (citing Pennsylvania v. Finley, 481 U.S. 551 (1987)). Recently,
however, the U.S. Supreme Court carved out a limited equitable exception for claims of
ineffective assistance of trial counsel that could be raised for the first time only in an initial state
post-conviction proceeding. See Martinez v. Ryan, 566 U.S. 1, 17 (2012); Trevino v. Thaler, 133
S. Ct. 1911, 1921 (2013). Under the U.S. Supreme Court’s recent decisions in Martinez and
Trevino, “Kentucky prisoners can, under certain circumstances, establish cause for a procedural
default of their IATC claims by showing that they lacked effective assistance of counsel at their
initial-review collateral proceedings,” such as RCr 11.42 proceedings. Woolbright v. Crews, 791
F.3d 628, 636 (6th Cir. 2015). However, “the holdings in Martinez and Trevino ‘[do] not
concern attorney errors in other kinds of proceedings, including appeals from initial-review
collateral proceedings . . . .’” Id. at 636 (alteration in original) (quoting Martinez, 566 U.S. at
16).
To establish prejudice, a habeas petitioner must demonstrate “‘actual prejudice’ resulting
from the errors of which he complains.” United States v. Frady, 456 U.S. 152, 168 (1982). A
petitioner must show not “that the errors at his trial created a possibility of prejudice, but that

25

they worked to his actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.” Id. at 170.
1.

Ground 5: Failure to Strike Juror Gaugh for Cause

Haight argues in Ground 5 that he received ineffective assistance of trial counsel when
his attorneys failed to move to strike for cause juror Gaugh after this juror stated that he would
not give serious consideration to Haight’s mitigation evidence of his deprived family
background. (Pet’r’s Mem. Supp. 47-85; Pet’r’s Reply 142; Pet’r’s Mot. Summ. J. 6-17; Pet’r’s
Supp. Obj., DN 177). Haight IV held that Haight’s trial counsel’s decision not to strike Gaugh
for cause was legitimate trial strategy, not ineffective assistance. Haight IV, 41 S.W.3d at 446.
The Magistrate Judge also concluded that Haight’s counsel’s decision to not strike Gaugh for
cause was sound trial strategy and that Gaugh was not an actually biased juror. (R. & R. 98114). Accordingly, the Magistrate Judge recommended denial of Haight’s claim for relief under
Ground 5 because the holding of the Kentucky Supreme Court was not an unreasonable
application of Strickland. (R. & R. 114).
Haight raises three issues as to the Magistrate Judge’s conclusions. (Pet’r’s Obj. 29).
First, Haight argues that the Magistrate Judge overlooked this Court’s order holding that there
could be no tactical or strategic reason for counsel’s refusal to strike a biased juror. (Pet’r’s Obj.
29). This Court previously stated that “the decision whether to seat a biased juror cannot be a
discretionary or strategic decision.” (Mem. Op. 8-9, DN 85 (internal quotation marks omitted)
(quoting Miller v. Webb, 385 F.3d 666, 675-76 (6th Cir. 2004))). Haight argues that the R&R’s
explanation of Haight’s trial counsel’s possible tactical strategies ignores this Court’s prior order
because Gaugh was biased as a matter of law. (Pet’r’s Obj. 29). The Court finds that the
Magistrate Judge did not err in reviewing Haight’s trial counsel’s performance, as the Magistrate

26

Judge further concluded that Gaugh was not an actually biased juror. (R. & R. 112). As the
Magistrate Judge explained, the Sixth Circuit has held that actual bias is “the existence of a state
of mind that leads to an inference that the person will not act with entire impartiality.” (R. & R.
107 (quoting Miller, 385 F.3d at 673)). The Magistrate Judge found that although Gaugh
indicated that he would not consider evidence of Haight’s deprived childhood and family
background, Gaugh was not actually biased because he had no relationship with the victims, did
not expressly state that he could not be fair, indicated that he would fully consider Haight’s
defenses of alcoholism and extreme emotional disturbance, and acknowledged that he had some
sympathy for Haight. (R. & R. 113).
Haight relies on Morgan v. Illinois, 504 U.S. 719 (1992), in support of his argument that
Gaugh was actually biased because of his indication during voir dire that he would not consider a
certain type of mitigating evidence. (Pet’r’s Obj. 33). In Morgan, the U.S. Supreme Court stated
that “[a]ny juror to whom mitigating factors are likewise irrelevant should be disqualified for
cause, for that juror has formed an opinion concerning the merits of the case without basis in the
evidence developed at trial.” Morgan, 504 U.S. at 739. The primary concern in Morgan was a
juror who indicated he would automatically recommend death regardless of any mitigating
evidence. Id. Here, Gaugh’s statement that he would not consider one type of mitigating
evidence does not raise these same concerns, especially where Gaugh further indicated that he
would consider Haight’s other mitigating evidence. See Lagrone v. Cockrell, No. CIV.A.4:99CV-0521-G, 2002 WL 1968246, at *19 (N.D. Tex. Aug. 19, 2002) (“[A] prospective juror’s
statement that he does not consider a certain type of evidence as mitigating does not subject him
to a challenge for cause because it is not evidence that he will be unable to perform his duties as
a juror.”). Further, Haight has provided no authority for the proposition that a juror is biased as a

27

matter of law because he will not consider one discrete aspect of mitigating evidence.
Therefore, because this Court agrees with the Magistrate Judge that Gaugh was not biased as a
matter of law, trial counsel’s decision to not strike Gaugh for cause did not amount to ineffective
assistance of counsel under Strickland.
Haight also takes issue with the Magistrate Judge’s examination of Haight’s trial
counsel’s possible tactical strategy. (Pet’r’s Obj. 36-41). When asked by the trial court to
provide a reason why he chose to not move to strike Gaugh for cause, Haight’s trial counsel
responded only that it was a “tactical decision.” (R. & R. 99 (citation omitted)). The Magistrate
Judge concluded that Haight’s counsel’s explicitly described “tactical decision” in not striking
Gaugh for cause was objectively reasonable because Gaugh stated that he would consider an
extreme emotional disturbance defense, would consider Haight’s evidence that he was under the
influence of alcohol at the time of the crime, and because Gaugh is an African-American. (R. &
R. 109-11). Defense counsel considered Gaugh to be a favorable juror in light of his belief that
Gaugh’s race meant he was statistically less likely to impose the death penalty. (R. & R. 10911). Haight contends that the Magistrate Judge’s proffered strategies are speculative and not
supported by the record.
Under AEDPA’s deferential standard of review, the question is whether there is “any
reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington, 562
U.S. at 105.

“Strickland specifically commands that a court ‘must indulge [the] strong

presumption’ that counsel ‘made all significant decisions in the exercise of reasonable
professional judgment.’” Cullen v. Pinholster, 563 U.S. 170, 196 (2011) (quoting Strickland,
466 U.S. at 689-90). A court must “affirmatively entertain the range of possible” reasons
counsel may have had for proceeding as he or she did. Id. Accordingly, the Magistrate Judge

28

properly pointed to parts of the state court record demonstrating defense counsel’s decision not
to challenge Gaugh was tactical. (R. & R. 109-11); see Pinholster, 563 U.S. at 191 (presuming
that counsel’s actions were a matter of trial strategy “[r]ather than . . . neglect” and noting
statements by counsel in state-court record “support[ing] the idea that [petitioner’s] counsel acted
strategically . . . .”). The Magistrate Judge noted that although “counsel may have declined to
put on the record the basis for his choice, Gaugh’s other statements during voir dire clearly
reveal the basis for counsel’s conscious election not to challenge Gaugh for cause.” (R. & R.
109). The Magistrate Judge cited statements by Gaugh indicating that he would consider the
entire range of penalties for intentional aggravated murder, that he would consider Haight’s
extreme emotional disturbance defense, and that he would give serious consideration to evidence
indicating that Haight acted under the influence of alcohol at the time of the crime. (R. & R.
109-10 (citation omitted)). What Haight labels as the Magistrate Judge’s “speculation” in fact
represents the exact type of analysis the U.S. Supreme Court has instructed courts to conduct in
reviewing petitions for writs of habeas corpus. Therefore, the Court finds Haight’s second
argument lacks merit.
Haight also objects to the Magistrate Judge’s conclusion that Haight’s trial counsel’s
tactical strategy was objectively reasonable and did not amount to deficient performance.
(Pet’r’s Obj. 29). As stated above, it is Haight’s burden to overcome the presumption of
competent representation. Strickland, 466 U.S. at 689. Aside from conclusory assertions that his
counsel’s strategy during voir dire was objectively unreasonable, Haight provides no elaboration.
(Pet’r’s Obj. 29, 39).

Accordingly, the Court concludes that he has not met his burden.

Strickland, 466 U.S. at 688.

29

Finally, the Court must address the arguments put forth in Haight’s supplement to his
Objection. Haight cites to Shelton v. United States, 800 F.3d 292 (6th Cir. 2015), for the
proposition that the Magistrate Judge should have provided fair notice and an opportunity to
brief the issue of whether Haight’s trial counsel decided not to strike Gaugh because Gaugh said
he would consider an extreme emotional disturbance defense and because he is an AfricanAmerican. (Pet’r’s Supp. Obj. 3). In Shelton, the Sixth Circuit held that “[b]efore acting on its
own initiative, [a] district court ‘must accord the parties fair notice and an opportunity to present
their positions.’” Shelton, 800 F.3d at 294 (quoting Day v. McDonough, 547 U.S. 198, 210
(2006)). Haight contends that Shelton applies to his case because the R&R was “the first, and
only, time that the explanations for trial counsel’s actions had been proposed by the Magistrate
Judge.” (Pet’r’s Supp. Obj. 3). The Court disagrees. In Shelton, the Sixth Circuit held that
before sua sponte dismissing a motion to vacate as untimely, the parties should be allowed to
present their positions. The issue of whether Haight’s counsel was deficient was certainly not
raised sua sponte by the Magistrate Judge.

Furthermore, Haight has been provided the

opportunity to file his Objection to the R&R, which constitutes his chance to be heard by this
Court. See United States v. Renfro, No. CR 08-93-ART-CJS-2, 2017 WL 1416869, at *1 n.3
(E.D. Ky. Mar. 22, 2017), report and recommendation adopted, No. CR 08-93-ART-CJS-(2),
2017 WL 1429192 (E.D. Ky. Apr. 19, 2017) (citing Shelton, 800 F.3d at 294-96). Accordingly,
the Court rejects Haight’s argument that he should have been allowed an opportunity to further
brief this issue, as Haight was afforded the opportunity to file his Objection, reply to the response
to the Objection, and provided supplemental authority all regarding this issue.
In conclusion, the Court finds after de novo review that the Magistrate Judge did not err
when he concluded that the holding of the Kentucky Supreme Court was not an unreasonable

30

application of Strickland. Therefore, the Court adopts the R&R as to Ground 5 and overrules
Haight’s Objection thereto.

Further, despite the Magistrate Judge’s recommendation, a

certificate of appealability is not warranted as to this claim as no reasonable jurists could debate
that Haight has utterly failed to show that trial counsel’s performance was objectively
unreasonable as to juror Gaugh. Slack, 529 U.S. at 484.
2.

Ground 8: Peremptory Strikes for Jurors

In Ground 8, Haight argues that he received ineffective assistance of counsel when his
trial attorneys failed to honor his request to remove jurors Gaugh, Helton, and Nichols from the
jury panel by use of peremptory strikes. (Pet’r’s Mem. Supp. 47-85; Pet’r’s Reply 142; Pet’r’s
Mot. Summ. J. 6-17). Haight IV rejected Haight’s ineffective assistance of counsel claim
regarding peremptory challenges. Haight IV, 41 S.W.3d at 443-44 (citation omitted). The court
noted that Haight received the full number of challenges to which he was entitled and could not
show that he was prejudiced because “[t]here is no reasonable probability that the result of his
trial would have been any different under the standards provided in Strickland.” Id. at 444.
Haight IV also emphasized that there was “no constitutional right to peremptory challenges.” Id.
(citation omitted). The Magistrate Judge recommended denial of relief because the Kentucky
Supreme Court’s holding was not an unreasonable application of or contrary to established U.S.
Supreme Court precedent.

(R. & R. 114-28).

The Magistrate Judge explained that trial

counsel’s failure to honor Haight’s alleged request to strike three jurors was not a “structural
error” under Kentucky law that amounted to a presumption of prejudice. (R. & R. 120). Further,
the Magistrate Judge noted that nothing in the record established that Haight was in any way
prejudiced by his counsel’s failure to strike the three jurors. (R. & R. 123-28).

31

Haight raises two issues as to the Magistrate Judge’s recommendation. First, Haight
objects to the Magistrate Judge’s reliance on Rivera v. Illinois, 556 U.S. 148 (2009), because
“Rivera did not address an issue of ineffective assistance of counsel.” (Pet’r’s Obj. 44). The
Magistrate Judge relied on Rivera for the principle that Haight’s counsel’s alleged failure to
strike jurors is not a structural error because there is no freestanding federal constitutional right
to peremptory challenges. (R. & R. 120 (citing Rivera, 556 U.S. at 151)). Haight argues that the
Magistrate Judge was misconstruing the claim, as the U.S. Supreme Court in Rivera did not
address the issue of ineffective assistance of counsel. The Court finds Haight’s argument is
without merit. The Magistrate Judge did not misconstrue the claim, but merely used Rivera to
support the conclusion that Haight’s counsel’s performance was not deficient. See Strickland,
466 U.S. at 487.
Next, Haight objects to the Magistrate Judge’s finding that Haight cannot demonstrate
prejudice for his Strickland claim to prevail.

This argument focuses on Gaugh because,

according to Haight, this juror was biased as a matter of law and thus prejudice is presumed.
(Pet’r’s Obj. 44). The Magistrate Judge noted that Haight III adopted the findings of the trial
court and held that there was no information to cause the court to believe that the jurors “were in
any way partial in their deliberations or their final conclusions.” (R. & R. 124 (quoting Haight
III, 938 S.W.2d at 247)). The Magistrate Judge then conducted a review of the record and
concluded that Gaugh’s statements of expressed skepticism of mitigation evidence during voir
dire were equivocal and, to the contrary, Gaugh actually indicated that he felt somewhat
sympathetic to Haight. (R. & R. 124). The Court disagrees with Haight’s assessment that the
Magistrate Judge is “simply and demonstrably incorrect.” (Pet’r’s Obj. 45). Nothing in Haight’s
Objection influences this Court to disturb the Kentucky Supreme Court’s factual holding that

32

Gaugh was not biased as a matter of law. Furthermore, although Haight does not specifically
object to the Magistrate Judge’s conclusion that Helton and Nichols were not biased as a matter
of law, the Court conducted de novo review and finds no error in the Magistrate Judge’s analysis.
Consequently, the Court agrees with the Magistrate Judge that Haight has not demonstrated that
he was prejudiced in any way by his counsel’s failure to strike these three particular jurors. See
Strickland, 466 U.S. at 487.
Therefore, the Court adopts the Magistrate Judge’s recommendation to deny Haight relief
under this claim because Haight IV was not an unreasonable application of Strickland. Thus, the
Court overrules Haight’s Objection as to Ground 8. The Court further concludes that reasonable
jurists could not debate whether the petition should have been resolved in a different manner
with respect to the use of peremptory strikes by trial counsel.
3.

Ground 9: Failure to Question Jurors, Raise Issues, and Exercise
Challenges for Cause

In Ground 9, Haight presents a variety of claims all involving the ineffective assistance of
trial counsel during jury selection. (Pet’r’s Mem. Supp. 61-62; Pet’r’s Reply 16-17). The claims
are related to the failure of Haight’s trial counsel to move the court to strike for cause jurors
Kaiser, Helton, Karnes, and Cunagin for various reasons, and misadvising two jurors, Larch and
Karnes, on the nature of the extreme emotional disturbance defense. (Pet’r’s Mem. Supp. 61-62;
Pet’r’s Reply 16-17). The Magistrate Judge fully addressed the nuances of each claim made by
Haight, and Haight III and Haight IV’s rejection of Haight’s ineffective assistance of counsel
claims relating to jury selection. (R. & R. 128-29). The Magistrate Judge recommended that this
Court deny relief under Ground 9 after concluding that the Kentucky Supreme Court did not
unreasonably apply Strickland in its analysis of these claims. (R. & R. 128-38).

33

Haight’s Objection does not set out any specific objections to the Magistrate Judge’s
conclusion. (Pet’r’s Obj. 46-49).

Haight instead reiterates his arguments as to why trial

counsel’s performance during voir dire amounted to ineffective assistance of counsel. The
Magistrate Judge conducted a detailed analysis and concluded that Haight’s counsel was not
ineffective, and thus, the Kentucky Supreme Court did not unreasonably apply Strickland. The
Court finds no errors in this analysis. Accordingly, the R&R pertaining to Ground 9 is adopted
and Haight’s Objection thereto is overruled. The Magistrate Judge recommended the issuance of
a certificate of appealability as to Ground 9. However, the Court does not find Haight has made
a substantial showing of a denial of his Sixth Amendment right to effective assistance of counsel
that would entitle him to a certificate of appealability on this ground. See Slack, 529 U.S. at 484.
4.

Ground 6: Introduction of the Jeanne Omer Letter

During Haight’s trial, the Commonwealth introduced a letter of a victim’s sister, Jeanne
Omer. Haight argues in Ground 6 that he received ineffective assistance of counsel at trial when
his attorney did not move to admit Haight’s responsive letter in which he expressed remorse for
his crimes. (Pet’r’s Mem. Supp. 47-85; Pet’r’s Reply 142; Pet’r’s Mot. Summ. J. 6-17). On this
point, Haight IV held:
Haight argues that defense counsel was ineffective when he did not introduce into
mitigation evidence a letter which Haight had written to one victim’s family. In
the letter, Haight admitted committing the murders, expressed sorrow at having
caused so much pain and suffering, and further expressed a desire to die for
having done so. Defense counsel clearly stated a desire not to reemphasize
Haight’s guilt phase testimony to the jury when it considered mitigating evidence
in the penalty phase. The letter stated in part, “If you think I should pay with my
life, then I’d have to agree with you . . . .” Defense counsel was not ineffective in
not introducing the letter into mitigation.

34

Haight IV, 41 S.W.3d at 448. The Magistrate Judge concluded that Haight IV was not an
unreasonable application of Strickland and recommended denial of Haight’s request for relief
under Ground 6. (R. & R. 139-41).
Haight’s Objection offers little new argument, and in fact, much of this portion of the
Objection is copied verbatim from his Reply to the Response to the Petition. (Pet’r’s Reply 1820; Pet’r’s Obj. 51-54). See Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th
Cir. 1991) (noting that a reexamination of the exact same argument that was presented to the
magistrate judge without specific objections “wastes judicial resources rather than saving them,
and runs contrary to the purposes of the Magistrates Act.”). Haight’s objection mainly offers
additional authority for his argument that remorse (which he contends was expressed in the
letter) is important mitigation evidence. (Pet’r’s Obj. 51-54).
Haight posits that because of this “compelling mitigation evidence,” his counsel’s
strategy during the penalty phase cannot be considered “objectively reasonable strategy.”
(Pet’r’s Obj. 55). As the Kentucky Supreme Court noted, however, counsel’s strategy during the
penalty phase was to avoid reemphasizing Haight’s guilt-phase testimony. Haight IV, 41 S.W.3d
at 448. The letter in which Haight admitted guilt would have done just that, not to mention that
Haight’s letter expressed support for giving him a death sentence. Id. See also Carter v.
Mitchell, 443 F.3d 517-32 (6th Cir. 2006) (holding that where evidence of a defendant’s
background would likely have made him look even worse to the jury, counsel’s strategic
decision to limit testimony about that background was “not even deficient performance, let alone
prejudicial . . . .” (internal quotation marks omitted) (quoting Moore v. Parker, 425 F.3d 250,
254 (6th Cir. 2005))).

35

The Sixth Circuit has emphasized that trial counsel’s tactical decisions are particularly
difficult to attack and a habeas petitioner’s challenge to such decisions must overcome a
presumption that the challenged action might be considered sound trial strategy. O’Hara v.
Wigginton, 24 F.3d 823, 828 (6th Cir. 1994); Darden v. Wainwright, 477 U.S. 168, 185-87
(1986). Haight’s objection does little to explain—beyond conclusory assertions—how Haight IV
is an unreasonable application of Strickland, especially when the letter in question not only reemphasized guilt but also invited imposition of the death penalty. Therefore, after reviewing the
R&R, the Court finds no error and adopts the Magistrate Judge’s recommendation that Haight’s
claim for relief under Ground 6 be denied. Haight’s Objection thereto is overruled. Although
the Magistrate Judge recommended a certificate of appealability be issued as to Ground 6, the
Court concludes that reasonable jurists could not find the assessment of this constitutional claim
debatable or wrong.
5.

Ground 16: Introduction of the 1986 Plea Agreement

In Ground 16, Haight argues that he received ineffective assistance of counsel when his
trial attorney did not introduce into evidence during the penalty phase the 1986 plea agreement
by which the Commonwealth offered Haight a sentence of life imprisonment in exchange for his
guilty plea to the murder and robbery charges. (Pet’r’s Mem. Supp. 62-64; Pet’r’s Reply 17-20).
The Haight IV decision noted that there was a “split of authority on the issue” of whether a
criminal defendant has a right to introduce evidence of a withdrawn guilty plea as mitigation
evidence in a capital trial. Haight IV, 41 S.W.3d at 448. Ultimately, the court held that under
the Strickland standard it was “at a loss to see how failure to move to admit evidence—the
admissibility of which is still an open question—can ever sink below sufficient performance into
deficiency.” Id. Accordingly, the Kentucky Supreme Court concluded that “while the failure to

36

advance an established legal theory may result in ineffective assistance of counsel under
Strickland, the failure to advance a novel theory never will.”

Id.

The Magistrate Judge

concluded that this was not an unreasonable application of Strickland and recommended denial
of Haight’s claim for relief on this ground. (R. & R. 141-44). Further, the Magistrate Judge
noted that introduction of the plea agreement would have been a “double-edged sword” for
Haight because while it demonstrated that one state prosecutor found a life sentence to be
appropriate, it likewise showed that “a state trial court [] firmly believed that death was the only
fair punishment . . . .” (R. & R. 143).
Haight argues that the Haight IV’s holding was unreasonable because “there was nothing
‘novel’ about the claim that a [s]tate’s offer of a sentence of less than death was mitigating
evidence at the time of [Haight’s] capital trial. (Pet’r’s Obj. 57). Haight maintains that Lockett
v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma, 455 U.S. 104 (1982); and Woodson v. North
Carolina, 428 U.S. 280 (1976), clearly establish this right. (Pet’r’s Obj. 56). Lockett, Eddings,
and Woodson hold that a capital defendant has a constitutional right to present mitigation
evidence relevant to his or her character, record, or circumstances of the case. Lockett, 438 U.S.
at 604 n.12; Eddings, 455 U.S. at 112; Woodson, 428 U.S. at 304-05. Therefore, consistent with
these clearly established legal principles, Haight argues that he had the right to introduce his plea
agreement as relevant mitigation evidence and his attorney was ineffective in failing to do so.
The Sixth Circuit has previously rejected the argument that Lockett, Eddings, and
Woodson’s clearly established legal principles create a right to introduce a plea agreement as
mitigation evidence. In Owens v. Guida, 549 F.3d 399 (6th Cir. 2008), the petitioner cited
Lockett for the argument that he had a right to present a negotiated plea agreement as mitigation
evidence. Id. at 421-22. The court emphasized that while Lockett requires the admission of

37

relevant mitigation evidence, the U.S. Supreme Court held that “lower courts could continue to
exclude [any] irrelevant evidence not bearing on the defendant’s character, prior record, or the
circumstances of the offense.” Id. at 419 (citing Lockett, 438 U.S. at 604 n.12). The court noted
that all of the other decisions addressing whether the Constitution required the admission of
failed plea negotiations as relevant mitigation evidence held that the Constitution did not prevent
the exclusion of such evidence. Id. at 421-22. The court then explained that “[a] rule of federal
law cannot be clearly established when it has been rejected by every court that has been asked to
adopt the rule, and a state court does not unreasonably apply clearly established federal law when
it rejects an argument that has been unanimously rejected by other courts.”

Id. at 422.

Accordingly, the Sixth Circuit held that the state court did not unreasonably apply or violate
clearly established federal law in holding that a petitioner was not entitled to present evidence
that the state had offered, and the defendant had accepted, an offer of a life sentence in exchange
for a guilty plea. Id. See also Wright v. Bell, 619 F.3d 586, 600 (6th Cir. 2010) (“Lockett and
Eddings stand for the important principle that a capital defendant must be able to present any
relevant mitigating evidence in order to allow the sentencing court to conduct an individualized
sentencing, but do not imply that evidence of a state’s plea offer is relevant mitigating
evidence.”); Riley v. Cockrell, 339 F.3d 308, 317-19 (5th Cir. 2003) (denying a certificate of
appealability to a death row inmate who wanted to argue that his trial counsel was ineffective for
not arguing that the inmate’s guilty plea constituted mitigating evidence); Hall v. Luebbers, 341
F.3d 706, 717 (8th Cir. 2003) (rejecting the capital defendant’s claim that “the trial court violated
his Eighth and Fourteenth Amendment rights by excluding evidence of Hall’s willingness to
plead guilty . . . .”). Therefore, the Court concludes that the notion that a plea agreement is
relevant admissible mitigation evidence is not so “clearly established” as Haight contends and he

38

has failed to establish that his counsel was ineffective for failing to offer the plea agreement into
evidence.
Consequently, Haight’s Objection is not well taken. As the Magistrate Judge pointed out,
Kentucky law regarding the admission of a withdrawn plea agreement at the time of Haight’s
trial and sentencing was not clear and “[a] strong argument existed that KRE 408 worked to
prohibit the introduction of just such a document.” (R. & R. 143). Thus, the Court agrees with
the R&R that Haight IV was not an objectively unreasonable application of Strickland, as
“Haight’s counsel could not be faulted under the Sixth Amendment for his decision not to
introduce the plea agreement.” (R. & R. 143). Accordingly, the R&R as to Ground 16 is
adopted and Haight’s Objection thereto is overruled.
Further, the Court holds that a certificate of appealability is warranted as jurists of reason
could disagree as to the merits of this claim. Significantly, the Ninth Circuit has previously held
that evidence of a plea offer from the prosecution was mitigating because it showed that the
prosecution thought the imposition of the death penalty was not clear-cut. Summerlin v. Schriro,
427 F.3d 623, 631-40 (9th Cir. 2005). This reflects that jurists of reason could disagree, and in
fact have disagreed, as to whether a plea agreement could have been offered as mitigating
evidence. Accordingly, a certificate of appealability as to Ground 16 will be granted.
6.

Ground 13: Failure to Adequately Investigate and Present Mitigation
Evidence

In Ground 13, Haight argues that the failure of counsel to perform an adequate
investigation as to his mental status and psychological problems and to obtain experts in view of
the information available to them of a 1974 psychological report suggesting the possibility of
organic brain damage plainly constituted ineffective assistance of counsel under Rompilla v.
Beard, 545 U.S. 374 (2005); Wiggins v. Smith, 539 U.S. 510 (2003); and Jacobs v. Horn, 395
39

F.3d 92 (3rd Cir. 2005). (Pet’r’s Mem. Supp. 67-80; Pet’r’s Reply 24-41). Haight IV rejected
this ineffective assistance of counsel claim based on the failure of Haight’s trial counsel to obtain
a neurological examination. Haight IV, 41 S.W.3d at 444-45. The court held:
Haight argues that he wanted funds during the post-conviction proceedings to hire
a neuropsychologist to examine him for organic brain damage. Trial counsel had
claimed that he did not know of a need for a neurological examination until after
the trial had started.
. . . Haight contends that he wanted to ask for funding for expert assistance in
neuropsychology in order to prove ineffective assistance of counsel at trial . . . .
This Court has already found that Haight had the full benefit of mental health
evaluations and experts during his trial.
The expert offered by Haight said that there was a high degree of certainty that
it’s possible that Haight may suffer from brain damage which may be material in
a defense based upon extreme emotional disturbance. This is mere speculation.
An RCr 11.42 proceeding does not provide for a relitigation of the performance of
trial counsel. It should be recalled that the report by the expert was not filed until
after the circuit court denied the RCr 11.42 motion. We find that Haight has not
demonstrated any prejudice in this regard. He was not denied fundamental due
process under either the federal or state constitution.
Id. (internal citation omitted). In Haight III the Kentucky Supreme Court determined that the
revelation of the 1974 mental health evaluation during trial did not require further
neuropsychological examination prior to sentencing. Haight III, 938 S.W.2d at 249. In that
decision, the Kentucky Supreme Court stated:
Appellant’s claim that a twenty-year-old mental health evaluation discovered
during trial would have affected the case is without merit. Appellant had full
benefit of mental health evaluations and experts and there was no abuse of
discretion in the trial court’s failure to order another such examination.
Moreover, the trial court gave all proper consideration to the mitigating evidence
prior to imposition of its final judgment.
Id.
As a threshold matter, the Court notes that the three expert reports that Haight now has in
his possession are not relevant to the Kentucky Supreme Court’s decision that Haight’s counsel

40

was not ineffective. As this Court has previously noted when denying Haight’s request for
expert assistance:
Whatever deficits neurological or psychopharmacological evaluations might now,
in hindsight, uncover, such findings do not call into question the valid basis for
trial counsel’s reliance on the opinions of the defense experts he consulted.
Newly-minted expert testimony would not assist Haight in establishing that the
Kentucky Supreme Court’s conclusion to reject his claim of ineffective assistance
of counsel was an unreasonable application of Strickland.
(Order Denying Expert Assistance 5, DN 105). Although Haight takes issue with this holding,
the Court will not disturb its prior ruling and therefore agrees with the Magistrate Judge that
these expert reports will not be considered when analyzing Haight’s request for habeas relief.
(R. & R. 144 n.27). Accordingly, the Court will address issues pertaining to the experts that
were presented during the penalty stage of the trial to determine if the Kentucky Supreme
Court’s holding that Haight’s counsel was not ineffective is an unreasonable application of
Strickland.
Haight contends that his trial counsel did not adequately investigate the possibility of
potential brain damage after being alerted to that possibility from a 1974 psychological
evaluation. The Magistrate Judge noted that the Haight’s argument overlooks the evaluation of
trial counsel’s expert, Dr. Fisher, and also ignores the vague nature of the 1974 psychological
evaluation that only references the “possibility” of brain damage without citing any specific
neurological testing or other objective bases for the opinion. (R. & R. 159). Further, the
Magistrate Judge concluded that Haight’s two trial attorneys obtained expert witnesses and
Haight “does not compellingly argue that psychologist Fisher was incompetent, negligent or
otherwise deficient in his psychological examination and his conclusions concerning Haight’s
lack of organic brain defect or dysfunction . . . .” (R. & R. 159). Accordingly, the Magistrate
Judge recommended denial of Haight’s claim for relief because the holdings in Haight III and
41

Haight IV that Haight’s trial counsel were not ineffective were not objectively unreasonable
applications of Strickland. (R. & R. 159-60).
None of the stated reasons for Haight’s Objection as to this ground, many of which are
duplications of the arguments in his Petition and Reply, dissuade the Court from the same
conclusion as the Magistrate Judge. The Magistrate Judge conducted a thorough and lengthy
analysis of Haight’s arguments which this Court has reviewed and finds no error. Accordingly,
the Court agrees with the Magistrate Judge that both Haight III and Haight IV reasonably applied
Strickland “to reject Haight’s claim that his attorneys failed to adequately investigate for
mitigation evidence prior to trial or that they were deficient in their failure to request the services
of a neuropsychiatrist or psychopharmacologist in addition to the clinical forensic psychologist
and clinical social worker they had already obtained to assist in Haight’s defense.” (R. & R.
159-60). Haight’s Objection is overruled and the R&R in regard to Ground 13 is adopted.
The Magistrate Judge recommended a certificate of appealability be issued as to Ground
13. Yet, the Court concludes that “no reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner . . . .” Slack, 529
U.S. at 484.
7.

Ground 14: Sleeping Juror

In Ground 14, Haight argues that his trial attorneys rendered ineffective assistance of
counsel when they failed to move for an immediate mistrial and to protect the trial record after
notifying the court that certain members of the jury had been sleeping during the penalty phase
of Haight’s capital trial. As to this ground for relief, the Haight IV decision did not reach the
merits but stated:
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
42

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 (internal citation omitted).
The Magistrate Judge recommended denial of Haight’s request for relief under this
ground because his claim, as the Kentucky Supreme Court held, was procedurally defaulted. (R.
& R. 162-64). Further, the Magistrate Judge noted that Haight could not establish cause and
prejudice under Martinez and Trevino to enable this Court to now hear his claim on the merits
because those “decisions were rendered well after Haight’s state court proceedings were entirely
concluded and [cannot] . . . be retroactively applied to his case in an effort to salvage this
procedurally defaulted issue.” (R. & R. 164).
Haight objects to the Magistrate Judge’s assertion that Martinez and Trevino cannot be
retroactively applied to salvage a procedurally defaulted issue raised in the Petition because
“Martinez and Trevino were rendered well after Haight’s state court proceedings were entirely
concluded.” (R. & R. 164; Pet’r’s Obj. 85-87). The Court finds that Haight’s objection has
merit, but does not change the outcome. The Magistrate Judge’s conclusion that Martinez cannot
be applied retroactively is misplaced. The Magistrate Judge relied on Chavez v. Secretary,
Florida Department of Corrections, 742 F.3d 940 (11th Cir. 2014), and Buenrostro v. United
States, 697 F.3d 1137 (9th Cir. 2012), in support of his conclusion; however, these cases held

43

that Martinez cannot be applied retroactively to form a basis for application for a second or
successive habeas petition because Martinez did not create a new rule of substantive
constitutional law. See Chavez, 742 F.3d at 946; Buenrostro, 697 F.3d at 1139.
The situation is quite different here as Haight’s instant claim is neither second,
successive, nor untimely. The Court finds convincing recent Sixth Circuit cases where the court
applied the Martinez exception to issues that were procedurally defaulted in state courts long
before Martinez was rendered in 2012. See Franklin v. Jenkins, 839 F.3d 465, 469 (6th Cir.
2016), cert. denied, 137 S. Ct. 2188 (2017) (applying Martinez to a state procedural bar that was
found by the Ohio Supreme Court in 2002); Atkins v. Holloway, 792 F.3d 654, 658 (6th Cir.
2015) (analyzing whether the Martinez exception applied to excuse a state procedural default
that occurred in 2004); Sutton v. Carpenter, 745 F.3d 787, 790 (6th Cir. 2014) (analyzing
whether Martinez excused a procedural bar because of failure to raise in state court in 2000).
Accordingly, the Court concludes that Martinez and Trevino, as equitable rules of federal habeas
law, would apply to Haight’s instant claim to excuse his state court procedural default if he could
demonstrate cause and prejudice for his state court default by showing that his post-conviction
attorney performed below the Strickland standard. But first, Haight must establish that “the
underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that
the prisoner must demonstrate that the claim has some merit.” Martinez, 566 U.S. at 14.
First, the Court emphasizes that Haight has not provided any evidence indicating which
juror was sleeping, for how long, or during which part of the presentation of evidence the juror
allegedly slept. In this Court’s earlier order denying Haight an evidentiary hearing as to this
matter, the Court stated:
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
44

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 ineffective for failing to allege specific facts when Haight continues
to decline to state what facts could have and should have been alleged.
(Mem. Op. 16-17, DN 135). Haight argues that it is the fault of the post-conviction courts in
refusing to provide him necessary time and resources that prevented the presentation of evidence
for this claim. He argues that he is not responsible for the undeveloped state court record and
“[t]o saddle him with a record born [sic] of deficient and unfair process is inequitable.” (Pet’r’s
Obj. 89). As previously noted, however, Haight has never stated what facts he believes these
courts have prevented him from obtaining that would lead to a successful claim. Furthermore,
although Haight’s post-conviction relief has been litigated for over two decades, Haight has
never adduced any affidavit or other evidence to corroborate his allegations.
Even if Haight had presented evidence supporting his claim that a juror was sleeping
during the penalty phase of his trial, Haight cannot show that his counsel’s performance was
deficient.

As discussed above, Strickland first directs courts to assess trial counsel’s

performance and determine whether it was reasonable. Strickland, 466 U.S. at 691. During the
penalty phase of trial, Haight’s counsel argued that the instructions were too complicated and
would guide the jury to an enhanced penalty. (R. & R. (citation omitted)). To support his
argument, he noted that the jury seemed incapable of taking direction and made the remark,
“[t]his jury appears to have a pretty short attention span anyway, with a couple of them sleeping
throughout the penalty phase, even early in the morning.” (R. & R. 75 (citation omitted)).
Therefore, Haight’s counsel’s comment and failure to move for a mistrial because of the alleged

45

sleeping juror was likely tactical strategy, and thus not an objectively unreasonable performance
under Strickland. See Sierra v. Bartowski, No. 11-1860 (RMB), 2012 WL 4504246, at *28
(D.N.J. Sept. 27, 2012) (“[The state court correctly] surmised that it could have been sound trial
strategy to forego an objection to a sleeping juror . . . . Other courts have also noted the strategic
considerations involved when a juror has been sleeping.”

(alteration in original) (internal

quotation marks omitted)); Prada-Cordero v. United States, 95 F. Supp. 2d 76, 81 (D.P.R. 2000)
(“Additionally, a court should be cognizant that attorneys may use the appearance of sleep as a
strategic tool to downplay the importance of an adversary’s presentation.” (citation omitted));
Arispe v. United States, No. 03-10124-BC, 2005 WL 3132211, at *2 (E.D. Mich. Nov. 21, 2005)
(“It is not necessarily an unreasonable strategy for a defense attorney to decline to object to juror
inattentiveness, especially when the jurors may have been inattentive to the government’s
case.”). This Court notes that it “must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance . . . .” Strickland, 466 U.S. at 689.
Haight has not overcome the presumption that his counsel’s actions “might be considered sound
trial strategy.” Id. (internal quotation marks omitted) (citation omitted). Therefore, the Court
concludes that Haight has not demonstrated that his counsel’s performance was defective, as
required by Strickland.
Finally, Haight has not shown that he was prejudiced by his counsel’s alleged error. “To
establish prejudice, [Haight] must show that a reasonable probability exists that, but for
counsel’s deficient performance, the result of the proceedings would have been different.”
Tibbetts v. Bradshaw, 633 F.3d 436, 442 (6th Cir. 2011) (citation omitted). Haight argues that he
was clearly prejudiced by a juror sleeping through the presentation of his mitigating evidence.
(Pet’r’s Obj. 89). Aside from the fact that there is no evidence that a juror was sleeping during

46

the mitigating evidence, Haight has failed to show that—even if a juror was sleeping during the
presentation of such evidence—there is a reasonable probability that a mistrial would have even
been granted. Where “one is left with pure speculation on whether the outcome of the trial or the
penalty phase could have been any different,” there is an insufficient showing of prejudice. Baze
v. Parker, 371 F.3d 310, 322 (6th Cir. 2004) (citation omitted). This is precisely the situation
here. For this reason, the Court concludes that Haight has failed to demonstrate that he was
prejudiced by his counsel’s alleged defective performance and has failed to make an adequate
showing under Strickland.
Accordingly, although the Court disagrees with the Magistrate Judge’s analysis in part,
the Court does agree that Haight’s claim for relief under Ground 14 is procedurally barred.
Therefore, Haight’s Objection regarding a sleeping or inattentive juror is overruled. Further,
though the Magistrate Judge recommended a certificate of appealability on this issue, the Court
does not believe that reasonable jurists could debate that a procedural bar is present for the
purpose of granting a certificate of appealability in the complete absence of any facts to support a
finding of deficient performance or prejudice.
8.

Ground 15: “No Adverse Inference”

Haight argues in Ground 15 that his trial counsel was ineffective when he failed to
request a “no adverse inference” instruction on Haight’s right to remain silent during the penalty
phase of the trial. (Pet’r’s Mem. Supp. 83-85; Pet’r’s Reply 44-54). The Kentucky Supreme
Court held that Haight’s claim was procedurally barred because he did not raise this ground for
relief on direct appeal of his case; however, the Magistrate Judge concluded that Haight did in
fact raise this claim on direct appeal. (R. & R. 166-68). The Magistrate Judge concluded that
Haight IV also reached the merits of the ineffective assistance of trial counsel claim based on its

47

statement that “this claim does not amount to ineffective assistance of counsel” followed by its
observation that “Carter v. Kentucky, 450 U.S. 288 (1981), is not applicable.” Haight IV, 41
S.W.3d at 448. See also Carter, 450 U.S. at 294-95 (holding that a no-adverse-inference
instruction is required at the guilt phase). Therefore, the Magistrate Judge analyzed Haight’s
claim under the unreasonable-application-of-or-contrary-to-federal-law standard, recommending
denial of this ground for relief because Haight cannot demonstrate either his counsel’s deficient
performance or that he suffered prejudice because of the lack of a “no adverse inference”
instruction within the meaning of Strickland. (R. & R. 164-68). Therefore, the Magistrate Judge
concluded that Haight IV is not contrary to or an unreasonable application of U.S. Supreme
Court precedent and recommended denial of Haight’s claim for relief under this ground. (R. &
R. 168).
Haight disputes the Magistrate Judge’s conclusion for three reasons. First, Haight argues
that his attorney’s decision to not offer the “no adverse inference” instruction was deficient
because it was against the professional state and local norms of Kentucky. (Pet’r’s Obj. 92-93).
Second, Haight claims that the Magistrate Judge’s conception of his counsel’s strategy is not
supported by evidence in the record. (Pet’r’s Obj. 93-94). Finally, Haight contends that the
Magistrate Judge’s conclusion that Haight cannot show he suffered prejudice because of the
“overwhelming proof of his guilt” is irrelevant in the consideration of whether he was prejudiced
during the penalty phase of his trial. (R. & R. 168; Pet’r’s Obj. 94-95).
Haight argues that the Magistrate Judge failed to consider the decision of Hibbard v.
Commonwealth, 661 S.W.2d 473 (Ky. 1983). (Pet’r’s Obj. 92-93). In Hibbard, the Kentucky
Supreme Court ruled that a defendant in a penalty proceeding was entitled to a no adverse
inference instruction under RCr 9.52 if he so requested, and failure of the trial court to give such

48

instruction was reversible error. Hibbard, 661 S.W.2d at 474. Thus, according to Haight,
Hibbard created Kentucky common law that was “the prevailing professional norm[] in
Kentucky at the time of trial” and his counsel’s failure to follow this practice amounted to
deficient performance. (Pet’r’s Obj. 92).
Petitioner overstates the breadth of Hibbard. The Kentucky Supreme Court merely held
there that a defendant is entitled to a no adverse inference instruction during the penalty phase of
a trial if one is requested.

Hibbard, 661 S.W.2d at 474.

Hibbard does not support the

proposition that there was the “professional norm” in Kentucky for counsel to request such an
instruction, only that the trial court must offer the instruction if requested. Further, Haight does
not demonstrate what U.S. Supreme Court precedent the Kentucky Supreme Court contravened
or applied unreasonably. Haight cites Heard v. Addison, 728 F.3d 1170 (10th Cir. 2013), and
Medina v. Diguglielmo, 461 F.3d 417 (3d Cir. 2006), for the principle that attorneys who do not
follow state and local professional norms are deficient under Strickland. (Pet’r’s Obj. 92-94). In
this analysis, however, federal appeals court decisions are clearly not established federal law as
determined by the U.S. Supreme Court. See 28 U.S.C. § 2254(d)(1). Haight has not pointed to
any U.S. Supreme Court precedent existing at the time holding that trial counsel’s failure to
follow local professional norms was deficient (even if Hibbard could be considered to reflect a
local professional norm) within the meaning of Strickland.8

Therefore, the Court rejects

Haight’s first contention.

8

Haight cites Wiggins v. Smith, 539 U.S. 510, 523 (2003), in support of his argument that
counsel’s “reasonableness under prevailing professional norms” is considered when determining
if counsel is deficient. This case was decided in 2003, however, and thus was not established
U.S. Supreme Court precedent at the time of Haight’s initial state court appeal. Under habeas
review, the state court decision is evaluated using the law at the time the petitioner’s state court
conviction became final. Williams, 529 U.S. at 379-80 (citing Teague, 489 U.S. at 307-09). See
also Teague, 489 U.S. at 309 (“Application of constitutional rules not in existence at the time a
49

Next, Haight takes issue with the Magistrate Judge’s conclusion that it was sound
strategy for Haight’s counsel not to raise at the penalty stage Haight’s guilt-phase testimony
admitting to murder. (Pet’r’s Obj. 93-94). Haight argues that there is no record evidence
indicating that this was his counsel’s strategy and revives his argument raised in support of an
evidentiary hearing. (Pet’r’s Obj. 93-94). On habeas review, however, courts may not “indulge
‘post hoc rationalization’ for counsel’s decisionmaking that contradicts the available evidence of
counsel’s actions . . . .” Harrington v. Richter, 562 U.S. 86, 109 (2011) (quoting Wiggins, 539
U.S. at 526-27). Nevertheless, a court may consider objectively reasonable bases for counsel’s
actions. Id. at 110. “Strickland . . . calls for an inquiry into the objective reasonableness of
counsel’s performance, not counsel’s subjective state of mind.” Id. (citing Strickland, 466 U.S.
at 688). Accordingly, a court is not required to have record evidence of counsel’s subjective
strategic thinking in order to determine the reasonableness of counsel’s strategy. Therefore,
Haight’s argument is not well taken, and the Court finds no need for an evidentiary hearing on
this point.
Finding that the Kentucky Supreme Court did not unreasonably apply federal law in
holding that Haight’s counsel’s performance was not deficient under Strickland renders moot
Haight’s final issue relating to the Magistrate Judge’s conclusion that Haight could not
demonstrate that he suffered prejudice from the lack of a no adverse inference instruction.9 (R.

conviction became final seriously undermines the principle of finality which is essential to the
operation of our criminal justice system.”). Therefore, this argument is not well taken.
9
The Court agrees with Haight that the Magistrate Judge’s review of the overwhelming evidence
of guilt has no bearing on the analysis of prejudice in sentencing. See Moore v. Mitchell, 708
F.3d 760, 797 n.16 (6th Cir. 2013) (“But the improper comments took place at the penalty phase.
The overwhelming evidence of guilt was irrelevant [during the penalty phase] because the jury
had already found Moore guilty. At sentencing, the jury was required to decide whether the
aggravating circumstances outweighed the mitigating circumstances, necessitating a verdict of
death.”). Nevertheless, even assuming arguendo that Haight could demonstrate the Kentucky
50

& R. 168). Therefore, finding no error, the Magistrate Judge’s recommendation that relief under
Ground 15 be denied is adopted and Haight’s Objection is overruled on this basis.
C.

Jury Issues
1.

Ground 17: Extrajudicial Knowledge

In Ground 17, Haight maintains that he was denied a fair trial by an impartial jury
because various members of the jury were aware of prejudicial facts obtained from their
exposure to a newspaper article entitled “Murder Trial Begins for Man Once Sentenced to
Death.” (Pet’r’s Mem. Supp. 85-88; Pet’r’s Reply 55-58). The article reported that Haight had
previously pleaded guilty to the two murders and that a police officer was accidentally shot to
death by a Kentucky state trooper during Haight’s arrest. The Kentucky Supreme Court in
Haight III addressed this ground for relief on its merits:
Appellant claims entitlement to a new trial on grounds that juror Helton engaged
in misconduct by failing to make full disclosure during voir dire, by prematurely
deciding contested issues, and by possibly furnishing proscribed information to
others jurors. This claim arises from the fact that prospective juror Helton read a
newspaper article concerning the case prior to reporting for jury duty. According
to his testimony, this juror scanned the article but did not remember the headline
which revealed that appellant had been previously sentenced to death.
Initially it should be observed that during voir dire the prospective juror
acknowledged that he had seen the article, recalled the names of the victims, and
indicated that he had little recollection otherwise about what was contained in the
article and in the headline. In addition, this prospective juror indicated an
independence of thought and a determination to fairly try the case. No motion
was made to exclude the juror for cause and no peremptory challenge was used to
remove him. He was seated and participated in the verdict.
Supreme Court unreasonably applied federal law when holding that Haight’s counsel’s
performance was not deficient—which he cannot—he has not shown how he was prejudiced by
his counsel’s failure to offer a no adverse inference instruction. As to proof of prejudice where,
as here, the defendant claims that counsel provided ineffective assistance in the penalty phase,
“the question is whether there is a reasonable probability that, absent the errors, the
sentencer . . . would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Strickland, 466 U.S. at 695. Haight has not made this
necessary showing.
51

In response to appellant’s motion for a new trial, the trial court held a hearing
relating to this juror and allegations he had withheld critical information. At the
conclusion of the hearing, the trial court rendered findings of fact that are not
clearly erroneous and which reveal no abuse of discretion. We deem it
appropriate to quote the trial court at length:
As to juror Helton, the court finds specifically that juror Helton
answered questions truthfully both on voir dire and at the March 7
[post-trial] hearing when he was called subsequent to the jurors’
verdict. A finding that he answered questions truthfully leads the
court to the conclusion that that evidence certainly is credible. The
juror says: I scanned the article. I do not remember the
headline [. . . .]
This is voir dire examination: I do not remember the headline. I
do not remember the details except that two people—there were
two murders and robberies and I remember the names Omer and
Vance as being the names of the parties involved.
The court has no reason to believe that at any time Mr. Helton
recalled anything else. . . . . With that in mind, I specifically find
that Mr. Helton’s testimony is credible. He did not display a bias,
and for that reason, overrule that portion of the motion for a new
trial dealing with that testimony. There was no deliberate
concealment on his part of information which would compel this
court to reach a conclusion that he was partial.
We can hardly conceive of a circumstance in which greater deference should be
granted to the findings of the trial court. It is appropriate to recall that the trial
judge personally conducted much of the voir dire examination and presided over
all of it. He presided over the trial and likewise presided over the post-trial
hearing on the motion for a new trial. The trial judge was immersed in the case
and it would be utterly extraordinary for an appellate court to disregard his view
as the questions of candor and impartiality of a juror.
We have examined the appellant’s contentions with respect to juror Nichols and
find them to be insubstantial. The transcript reveals no misunderstanding
concerning the death of the police officer or disclosure to other jurors. This juror
was given enough information during voir dire to have led to a mistaken belief on
her part. Her post-trial testimony is without any hint of dishonesty.
As to juror Gaugh, much is made of his apparent knowledge of the police officer
having been killed when, in fact, he was properly informed only that a police
officer had been fired upon. We are told that this is more than enough to compel
the inference that Gaugh concealed vital information. As the evidence in this
52

regard was ambiguous, as it is likewise with respect to each of these jurors, we
will rely on the trial court for the reasons stated herein and as follows: “It is
pretty clear that they [the questioned jurors] had no information which would
cause the court to believe that they were in any way partial in their deliberations
or their final conclusions.”
Haight III, 938 S.W.2d at 245-47 (internal citations omitted) (citation omitted). The Magistrate
Judge recommended rejection of this claim because Haight had not shown that the Kentucky
Supreme Court’s holding was contrary to or an unreasonable application of clearly established
federal law, or was based on an unreasonable determination of the facts. (R. & R. 173-80).
Haight’s objection to this recommendation is mostly a reiteration of his earlier arguments, with
some parts of his Objection presented verbatim from his Petition. (Pet’r’s Mem. Supp. 85-89;
Pet’r’s Obj. 95-99).
The only specific objection Haight puts forth is that the Magistrate Judge erred in not
considering the Sixth Circuit’s decision in Goins v. McKeen, 605 F.2d 947 (6th Cir. 1979). (R.
& R. 183). In Goins, the Sixth Circuit held:
While neither the publicity involved nor the jurors’ exposure to it was extensive
in this case, we believe that its occurrence during trial and the fact that the article
contained information strongly probative of guilt, along with other inadmissible
and extremely prejudicial information, rendered the circumstances inherently
prejudicial and that a violation of petitioner’s constitutional right to trial by an
impartial jury may be presumed.
Goins, 605 F.2d at 954. Haight maintains that this supports his argument that prejudice should
be presumed in his case because the newspaper article at issue was published during his trial and
revealed prejudicial information pertaining to his past guilty plea. (Pet’r’s Obj. 95-99).
In determining what clearly established federal law to apply, the court may not look to
lower federal court decisions to formulate the relevant rule of law, but only to holdings of the
United States Supreme Court.

See James v. Brigano, 470 F.3d 636, 643 (6th Cir. 2006)

(reversing a district court’s grant of relief based upon a Sixth Circuit decision which was not
53

“clearly established Federal law, as determined by the Supreme Court of the United States . . . .”
(citing 28 U.S.C. § 2254(d)(1))). Nonetheless, decisions of lower courts of appeals may be
instructive in assessing the reasonableness of a state court’s holding. See Stewart v. Erwin, 503
F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003);
Dickens v. Jones, 203 F. Supp. 2d 354, 359 (E.D. Mich. 2002)). Thus, Haight cannot rely on
Goins for the proposition that it extended the doctrine of presumed prejudice, because Goins is
not “clearly established Federal law, as determined by the Supreme Court of the United
States . . . .” 28 U.S.C. § 2254(d)(1). See Williams v. Griswald, 743 F.2d 1533, 1538 n.6 (11th
Cir. 1984) (declining to adopt Goins and noting that Goins cited no authority for extending the
doctrine of presumed prejudice).
Additionally, Haight argues that the Kentucky Supreme Court’s holding involved an
unreasonable determination of the facts. “Under AEDPA, . . . a federal habeas court must find
the state-court conclusion ‘an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.’” Rice v. Collins, 546 U.S. 333, 338 (2006). In
conducting this review, a federal court is to apply a presumption of correctness to state court
findings of fact for habeas corpus purposes unless clear and convincing evidence is offered to
rebut the presumption. 28 U.S.C. § 2254(e)(1); Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir.
1998). Haight III noted that the trial judge determined the jurors to be impartial after personally
conducting voir dire and presiding over the post-trial hearing on the motion for a new trial.
Haight III, 938 S.W.2d at 247. Haight puts forth no reason that would sway this Court to
disagree in any respect with the factual determinations of the trial court and the Kentucky
Supreme Court. See Dennis v. Mitchell, 354 F.3d 511, 520 (6th Cir. 2003) (“[A] trial court’s
finding that a juror was impartial is entitled to a presumption of correctness, rebuttable only upon

54

a showing of clear and convincing evidence.”). Haight has proffered no evidence to contradict
the trial court’s determination regarding juror impartiality. Therefore, the Court holds that the
Kentucky Supreme Court did not make an unreasonable determination of the facts related to this
issue.
Finding no error, the Court holds that the Magistrate Judge’s recommendation to deny the
relief requested in Ground 17 is adopted and Haight’s Objection is overruled. A certificate of
appealability will be granted as to this ground. Considering the Sixth Circuit has previously
found that prejudice was presumed on a set of somewhat similar facts regarding pretrial
publicity, the Court concludes that jurists of reason could find the resolution of this ground
debatable. See Goins, 605 F.2d at 954. See also Slack, 529 U.S. at 484.
2.

Ground 18: Unfair Jury Selection Procedure

Haight argues in Ground 18 that he was deprived of due process of law and an impartial
jury when the jury selection procedures during the trial “violated well established Kentucky rules
for jury selection.” Regarding this argument, the Kentucky Supreme Court stated:
Initially we must state that there is no evidence upon which any impropriety may
be inferred. Moreover, the procedure initially employed, i.e.[,] drawing a
sufficient number to reduce the jury to the number required by law, is permitted
by RCr 9.36(2). As such, the re-draw, which produced a jury consisting of the
same persons, was merely redundant. Finally, our review of the claims in this
regard reveals substantial compliance with the rules relating to jury selection and
certainly no error of sufficient gravity to overcome the trial court’s discretion with
respect to a new trial.
Haight III, 938 S.W.2d at 247 (citation omitted). The Magistrate Judge concluded that this
holding was not an unreasonable application of or clearly contrary to any clearly established
federal law despite any possible error in the state procedures because “the jury ultimately chosen
represents a fair cross-section of the community . . . .” (R. & R. 182).

55

Haight avers that that the alleged mistake by the trial court in jury selection procedures
prevented him from having the right to a fair and impartial jury because three women—one of
whom was African-American—were left off of the jury due to an alleged mistake. Thus, Haight
argues, the Kentucky Supreme Court ignored U.S. Supreme Court precedent established in
Batson v. Kentucky, 476 U.S. 79, 91 (1986), and J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127
(1994), as this error affected his right to a fair and impartial jury.
This argument has no merit. The Kentucky Supreme Court held that the jury selection
process was in substantial compliance with Kentucky procedural rules, and this Court cannot
disturb that holding. Haight III, 938 S.W.2d at 247 (citation omitted); see Estelle v. McGuire,
502 U.S. 62, 67-68 (1991) (“[F]ederal habeas corpus relief does not lie for errors of state
law . . . . [W]e emphasize that it is not the province of a federal habeas court to reexamine statecourt determinations on state-law questions.”

(internal quotation marks omitted) (internal

citation omitted) (citations omitted)). Moreover, even if there was a mistake in the jury selection
process, Haight has adduced no evidence that these women were kept off the jury because of
their race or gender, or that the chosen jury failed to represent a fair cross-section of the
community. The Court agrees with the Magistrate Judge that “[w]hat is important from the
perspective of the federal Constitution is that, whatever state procedures may be employed, the
jury ultimately chosen represents a fair cross-section of the community under the Sixth
Amendment.” (R. & R. 182 (citing Duren v. Missouri, 439 U.S. 357 (1979); United States v.
Allen, 160 F.3d 1096 (6th Cir. 1998))). Haight has not demonstrated or alleged that the jury
empaneled was not a fair representation of the community. Therefore, the Court does not find
that Haight III was contrary to or an unreasonable application of clearly established federal law.
Accordingly, the Court adopts the Magistrate Judge’s recommendation to deny relief under

56

Ground 18 and overrules Haight’s Objection. The Court further concludes that a certificate of
appealability is not warranted because reasonable jurists could not debate this Court’s resolution
of Ground 18. See Slack, 529 U.S. at 484.
3.

Ground 19: Improper Exclusion of Jurors

In Ground 19, Haight argues that jurors Hansen and Ireland were improperly excused for
cause because the trial court erroneously concluded that they could not consider death as a
penalty. (Pet’r’s Mem. Supp. 90-95; Pet’r’s Reply 59-62). With respect to this point, 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.
Haight III, 938 S.W.2d at 247. Because it was unclear to the Magistrate Judge whether the
Kentucky Supreme Court relied on a procedural bar, the Magistrate Judge addressed the merits
of the argument and determined that Haight III was a reasonable application of U.S. Supreme
Court precedent and a reasonable application of the facts. (R. & R. 187). Specifically, the
Magistrate Judge concluded that the record supported the trial court’s finding that jurors Hansen
and Ireland’s opinion of the death penalty would have substantially impaired their ability to
impose the death penalty and this holding, as a finding of fact, should be given substantial
deference. (R. & R. 186-87).
Haight objects, arguing that Haight III was contrary to and an unreasonable application of
clearly established federal law, as well as an unreasonable determination of the facts because
juror Hansen stated that she could set aside her views of the death penalty and juror Ireland
stated that it was possible he could sentence someone to death if the circumstances were
57

“extreme.” (Pet’r’s Obj. 104). Haight argues that the mere fact the two jurors “might not be
comfortable with the idea of imposing the death penalty” did not render them ineligible for jury
duty in a capital case. (Pet’r’s Obj. 104). Like many of Haight’s other contentions, this is
mostly copied directly from his Petition. Regardless, a review of the record reveals that Haight
III was neither contrary to or an unreasonable application of U.S. Supreme Court precedent, nor
an unreasonable determination of fact. A trial court’s decision to strike a juror based on his or
her views of capital punishment is a factual determination. Under 28 U.S.C. § 2254, such a
determination is entitled to a presumption of correctness, to be overturned only if it rebutted by
clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
Upon de novo review, the Court agrees with the Magistrate Judge that the trial court’s
decision to exclude jurors Hansen and Ireland is supported by the record. During voir dire, juror
Hansen stated that she was opposed to the death penalty and would not seriously consider death
as a sentence, admitted she could not consider the full range of penalties, and stated that it was
wrong to decide if someone should live or die. (R. & R. 185 (citation omitted)). Juror Ireland
also indicated that he would not consider a sentence of death. (R. & R. 185 (citation omitted)).
These statements could reasonably lead a trial court to conclude that the two jurors’ views would
prevent or substantially impair the ability of jurors Hansen and Ireland to sit on a capital jury.
See Adams v. Texas, 448 U.S. 38, 45 (1980) (“[A] juror may not be challenged for cause based
on his views about capital punishment unless those views would prevent or substantially impair
the performance of his duties as a juror in accordance with his instructions and his oath.”
(emphasis added)). This was not an unreasonable finding of fact and, therefore, Haight III was
not contrary to or an unreasonable application of U.S. Supreme Court precedent.

58

Finding no error, the Court adopts the recommendation of the Magistrate Judge as to
Ground 19 and Haight’s Objection on this basis.

Despite the Magistrate Judge’s

recommendation that a certificate of appealability should be granted, the Court finds that no
reasonable jurists could debate whether the petition should have been granted.
4.

Ground 20: Failure to Exclude Jurors

In Ground 20, Haight contends that jurors Huffman, Nestmann, and Gaugh were not
constitutionally qualified to sit as jurors in Haight’s capital case because they stated that they
would not consider Haight’s background as mitigating evidence. (Pet’r’s Mem. Supp. 96-102;
Pet’r’s Reply 62-63). Haight III concluded that it was within the trial court’s discretion to allow
Huffman, Nestmann, and Gaugh on the jury. Haight III, 938 S.W.2d at 247. The Magistrate
Judge recommended that the Court deny Haight’s claim for relief because the Kentucky Supreme
Court’s holding was not clearly unreasonable or contrary to any U.S. Supreme Court precedent.
(R. & R. 187-92). Haight avers that the Magistrate Judge’s legal analysis is incorrect because it
is “unconstitutional to impanel a jury that cannot and will not consider relevant mitigating
evidence when assessing punishment in a capital case.” (Pet’r’s Obj. 110).
The Magistrate Judge noted that this claim cannot be applied as to juror Huffman because
“Huffman did not sit on the jury that convicted Haight of the murders and fixed his penalty at
death.

Huffman was removed by peremptory challenge.

Consequently Haight cannot

successfully argue that his constitutional rights were in any fashion violated . . . .” (R. & R. 189)
(citing United States v. Martinez-Salazar, 528 U.S. 304, 307 (2002)).

Haight does not

specifically object to this finding and the Court finds no error in the Magistrate Judge’s analysis.
Thus, the Court adopts the Magistrate Judge’s recommendation to deny the claim as it pertains to
juror Huffman.

59

The Magistrate Judge also concluded that Haight could not maintain this claim regarding
juror Gaugh on the basis of waiver. As the R&R states, “[t]he conscious election of Haight’s
trial counsel to expressly waive any objection with respect to juror Gaugh, along with the
acknowledgment on appeal that the issue concerning Gaugh was not preserved for appellate
review, stands as a separate and independent basis on which to reject habeas corpus relief . . . .”
(R. & R. 191). See Murray, 477 U.S. at 485 (“Wainwright v. Sykes plainly implied that default
of a constitutional claim by counsel pursuant to a trial strategy or tactical decision would, absent
extraordinary circumstance, bind the habeas petitioner even if he had not personally waived that
claim.” (citations omitted)). Haight does not specifically object to this recommendation by the
Magistrate Judge and the Court finds no error regarding the Magistrate Judge’s recommendation
to deny this claim as it relates to juror Gaugh.
With respect to juror Nestmann, Haight presented a lengthy analysis of case law to which
the Court does not disagree. (Pet’r’s Obj. 109-13). According to Haight, any juror not willing to
consider mitigating evidence should be disqualified for cause. Morgan, 504 U.S. at 739. In
Morgan, the court stated: “[a]ny juror to whom mitigating factors are likewise irrelevant should
be disqualified for cause, for that juror has formed an opinion concerning the merits of the case
without basis in the evidence developed at trial.” Id. As noted above, the primary concern
expressed in Morgan is a juror who would automatically recommend death regardless of any
mitigating evidence. Id. Juror Nestmann acknowledged during voir dire that he would have
difficulty in considering certain categories of mitigating evidence, but ultimately agreed that he
would consider all of the mitigating evidence in the case. (R. & R. 191 (citation omitted)).
Moreover, Haight’s trial counsel acknowledged that Nestmann was capable of considering
mitigating evidence. (R. & R. 191 (citation omitted)). Thus, the Kentucky Supreme Court’s

60

holding that keeping juror Nestmann on the jury was within the trial court’s discretion was
neither clearly contrary to or an unreasonable application of clearly established federal law, nor
was the finding that juror Nestmann would consider Haight’s mitigating evidence an
unreasonable determination of fact.
Therefore, finding no error, the Court adopts the Magistrate Judge’s recommendation as
to Ground 20 and Haight’s Objection is overruled. Further, although the Magistrate Judge
recommended issuance of a certificate of appealability, the Court concludes that Haight has not
made a substantial showing of a denial of a constitutional right and that reasonable jurists could
not debate whether the issue should have been resolved in a different manner.
5.

Ground 21: Juror Donohue’s Presence in the Courtroom

Haight argues in Ground 21 that he was unduly prejudiced and deprived of a fair trial
when an alternate juror, upon being excused, sat in the courtroom near the victim’s family during
the penalty phase of the trial. (Pet’r’s Mem. Supp. 103-07; Pet’r’s Reply 63-64). Haight
contends that the remaining jurors saw this as a show of support for the victims’ families which
prejudiced their decision-making. The Haight III decision included this issue among others in its
holding that “there was no preservation of the question or that the ruling was within the sound
discretion of the trial court.” Haight III, 938 S.W.2d at 247. Further, Haight IV noted “[t]he
allegation with respect to juror Donahue was rejected in the direct appeal of this case. . . . Haight
received a fundamentally fair trial by an impartial jury.” Haight IV, 41 S.W.3d at 446. The
Magistrate Judge recommended the Court deny relief as to this ground because nothing in the
record supports Haight’s claim that juror Donohue’s mere presence near the victims’ families
was a nonverbal expression of support for the victims. (R. & R. 192-94).

61

Haight challenges this finding because his discovery request as to this claim was denied,
which he maintains precluded him from collecting facts to prove his entitlement to relief. He
argues that “[i]t is fundamentally unfair to deny [Haight] the opportunity to present the facts
which prove his claim and then fault him for not proving his claim.” (Pet’r’s Obj. 115). This
Court previously denied Haight’s discovery request and held that his motion was “nothing more
than a fishing expedition disguised in the form of a discovery request.” (Disc. Order 6, DN 80
(citing Burns v. Lafler, 328 F. Supp. 2d 711, 718-19 (E.D. Mich. 2004))). The circumstances
have not changed and the Court will not overturn its prior order.
Accordingly, the Court agrees with the Magistrate Judge that “[t]he trial court found no
indication of such an expression of support . . . . Certainly, the trial court was far and away in
the best position to observe any potentially improper conduct, nonverbal or otherwise.” (R. & R.
193). Further, the Kentucky Supreme Court held that the trial court’s finding was not an abuse
of discretion. Considering the complete lack of evidence in the record to support this ground for
relief, the Court concludes that the Kentucky Supreme Court’s holding as to juror Donohue’s
presence in the courtroom was not an unreasonable application of clearly established federal law
or an unreasonable finding of fact. Accordingly, the Magistrate Judge’s recommendation that
this claim for relief be denied is adopted and Haight’s Objection is overruled. The Magistrate
Judge recommended the issuance of a certificate of appealability on this ground; however, in
view of the deference to be accorded the state court’s factual determinations, the Court does not
believe that reasonable jurists could debate the resolution of this issue considering the complete
lack of evidence Haight has proffered in support of his claim.

62

6.

Ground 22: Coerced Jury Verdict

In Ground 22, Haight contends that the trial judge improperly forced jurors to resume
deliberations after being deadlocked, thus depriving him of a fair trial, due process of law, and a
reliable sentencing determination in violation of the Sixth, Eighth, and Fourteenth Amendments.
(Pet’r’s Mem. Supp. 107-11; Pet’r’s Reply 64-65). On this point, the Kentucky Supreme Court
in Haight III held:
On the unpreserved claim that a verdict was coerced, the record simply fails to
bear out such an assertion. At no time did the jury report that it was deadlocked.
In view of the gravity of the decision before the jury, the time spent in
deliberation was not excessive and we discern no violation of those decisions
which proscribe coercion of jurors into rendering a verdict.
Haight III, 938 S.W.2d at 247 (citations omitted). The Magistrate Judge recommended denial of
Haight’s request for relief as to this ground because “no dispute exists that this question was not
preserved for appellate review.” (R. & R. 197). Haight does not object to the Magistrate Judge’s
conclusion that his claim is procedurally barred; however, he argues that the Magistrate Judge’s
recommendation is incorrect because “the state courts unreasonably failed to provide sufficient
process to permit the presentation, and full and fair adjudication of [] Haight’s serious
constitutional claim of error.” (Pet’r’s Obj. 168).
Haight asserts that he can establish cause and prejudice for this claim to excuse the
procedural default, yet provides scant elaboration. (Pet’r’s Obj. 168). Haight’s argument is set
out in two sentences summarily claiming the state courts did not provide process to permit the
presentation of his claims. Beyond this conclusory assertion, Haight does not specify what
procedures the state failed to provide in this respect.
The Court rejects Haight’s argument that he can show cause and prejudice to avoid the
procedural bar. See Bousley v. United States, 523 U.S. 614, 623 (1998) (holding that if a

63

petitioner fails to establish cause, it is unnecessary to determine if he was prejudiced by the
alleged violation). Accordingly, the Court adopts the Magistrate Judge’s recommendation to
deny relief as to Ground 22. Additionally, the Court agrees with the Magistrate Judge that
reasonable jurists could not debate the present procedural bar.
7.

Ground 27:
Mitigation

Refusal to Instruct on Individual Determination of

In Ground 27, Haight argues that the refusal of the trial court to instruct the jury that each
juror may individually determine, weigh, and consider evidence of mitigation, and that they did
not all have to agree on the mitigators, deprived Haight of a reliable verdict on punishment in
violation of the Sixth, Eighth and Fourteenth Amendments. (Pet’r’s Mem. Supp. 111-13; Pet’r’s
Reply 65-67). Haight III rejected his argument and indicated that Haight’s contention “that the
trial court erred in failing to inform the jury that its decision with respect to mitigation did not
have to be unanimous was fully resolved in Bowling v. Commonwealth, 873 S.W.2d 175, 180
(Ky. 1994). We discern nothing about this case which differs materially in that respect from
Bowling.” Haight III, 938 S.W.2d at 249. In Bowling, the Kentucky Supreme Court held that
“[a]n instruction on unanimous findings on mitigation is not required. The instructions only
require the jury to consider mitigating circumstances.” Bowling, 873 S.W.2d at 180 (internal
citation omitted).
The Magistrate Judge recommended that this Court deny Haight’s request for relief as to
this ground because the Kentucky Supreme Court’s holding was neither contrary to any clearly
established precedent of the U.S. Supreme Court nor was it an unreasonable application of such
precedent. (R. & R. 204-05). Haight raises numerous reasons for challenging the Magistrate
Judge’s recommendation on this ground. Thus, the Court will conduct de novo review of
Haight’s request for relief regarding Ground 27.
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This Court previously explained the relevant rule of law applicable to this claim as
follows:
“The Eighth Amendment requires that the jury be able to consider and give effect
to all relevant mitigating evidence” offered by the defendant. “[I]n a capital case
‘the sentencer [may] not be precluded from considering, as a mitigating factor,
any aspect of a defendant’s character or record and any of the circumstances of
the offense that the defendant proffers as a basis for a sentence less than death.’”
To that end, it is unconstitutional for a state to require jurors to unanimously agree
on mitigators. However, the Constitution does not require a state to adopt specific
standards for instructing the jury in its consideration of mitigating factors under a
death penalty scheme. Kentucky has chosen not to require the trial judge to
instruct the jury that its findings on the existence of any particular mitigating
factor does not have to be unanimous. Still, regardless of state law requirements,
the Constitution forbids a trial court from instructing a jury that it has to reach a
unanimous decision on the existence of any mitigating factor. Further, sentencing
instructions are constitutionally invalid if they create a substantial likelihood that
reasonable jurors might think that they are precluded from considering any
mitigating evidence unless jurors unanimously agree that the mitigator is proven.
Thompson v. Parker, No. 5:11-CV-31-R, 2012 WL 6201203, at *30 (W.D. Ky. Dec. 10, 2012),
aff’d, 2017 WL 3474044 (6th Cir. Aug. 14, 2017) (emphasis added) (internal citations omitted)
(citation omitted). Accordingly, the question is whether there is a substantial likelihood that a
reasonable juror would have thought that mitigating circumstances in Haight’s case could not be
considered unless the jury unanimously agreed that a particular mitigating circumstance existed.
An answer in the affirmative would render the Kentucky Supreme Court’s decision an
unreasonable application of clearly established federal law.
Haight’s argument focuses on Instruction No. 5, entitled “UNANIMOUS VERDICT”
which provided: “[e]ach verdict of the jury must be unanimous and be signed by one of you as
foreperson. You may use the forms at the end of these instructions in writing your verdict.” (R.
& R. 198 (citation omitted)). Haight argues that when Instruction No. 5 is read in conjunction
with Instruction No. 3(c), which informed the jury that they shall consider mitigating evidence, it

65

would cause a reasonable juror to believe that a finding of a mitigating factor by the jury must be
unanimous.10
Haight argues that the Kentucky Supreme Court’s decision amounts to an unreasonable
application of Mills v. Maryland, 486 U.S. 367 (1988). In Mills, the U.S. Supreme Court vacated
the conviction and remanded for further proceedings because “there [wa]s a substantial
probability that reasonable jurors, upon receiving the judge’s instructions in this case, and in
attempting to complete the verdict form as instructed, well may have thought they were
precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence
of a particular such circumstance.” Id. at 384. Mills concerned a Maryland death sentence
where the jury had received a verdict form which contained a list of possible mitigating
circumstances, accompanied by spaces in which the jury could check “yes” or “no” and preceded
by a statement that the jury “unanimously find[s] that each of the following mitigating
circumstances which is marked ‘yes’ has been proven to exist.” Id. at 384-89 (emphasis added).
See also McKoy v. North Carolina, 494 U.S. 433, 442-44 (1990) (applying Mills to overturn a
North Carolina death sentence where the sentencing jury received an instruction which expressly
prevented the jury from considering any mitigating factor that the jury did not “unanimously”
find to exist). Conversely, in this case, the instructions were silent on the issue of unanimity as
10

Specifically, Instruction No. 3(c) provides:
In fixing punishment for the defendant, you shall consider such mitigation or
extenuating facts and circumstances as they have been presented to you in the
evidence and you believe to be true, including but not limited to such of the
following as you believe from the evidence to be true:
....
(c) any other circumstance or circumstances arising from the evidence which you
the jury deem to have mitigating value.

(R. & R. 199 (citation omitted)).
66

to the aggravating circumstances and the mitigating circumstances. Instruction No. 5 simply
stated that the jury’s verdict itself had to be unanimous. Furthermore, nothing in the record
suggests that the jurors were confused by these instructions.

Therefore, the Court cannot

conclude that Haight III was an unreasonable application of Mills.
Upon review of the record the Court concludes that there is not a reasonable likelihood
that a reasonable juror would have thought that he could not consider mitigating circumstances
unless the jury unanimously agreed to that factor’s presence. Instruction of the jury is a matter
resting within the sound discretion of the trial court, and the trial court acted well within its
discretion in denying Haight’s request for an express instruction on the non-unanimity
requirement for mitigating factors. See Thompson, 2012 WL 6201203, at *28-34 (holding that
the state court’s decision was not contrary to or an unreasonable application of federal law
because “[t]he instructions and verdict form in the instant case did not directly state that the
jury’s finding of any mitigating factor had to be unanimous but were in fact silent as to whether
the mitigating factors had to [be] found unanimously.”).
Finally, Haight argues that he should be able to rely on Davis v. Mitchell, 318 F.3d 682
(6th Cir. 2003), to support his argument. (Pet’r’s Obj. 124-25). The Magistrate Judge concluded
that Haight could not rely on a Sixth Circuit case as clearly established U.S. Supreme Court
precedent. (R. & R. 203-04). As stated numerous times, a petitioner must show that the state
court’s decision is contrary to or 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).
Therefore, Haight cannot rely on Davis to support his argument that the Kentucky Supreme
Court’s holding was an unreasonable application of clearly established federal law.

67

The Court finds that the Kentucky Supreme Court’s decision was not contrary to or an
unreasonable application of clearly established federal law.

Thus, the Magistrate Judge’s

recommendation to deny relief under Ground 27 is adopted and Haight’s Objection thereto is
overruled. Further, considering the Sixth Circuit has previously found unconstitutional jury
instructions that are somewhat similar to the instructions at issue here , the Court concludes that
jurists of reason could find this ground for relief debatable. See Davis, 318 F.3d at 685. See also
Slack, 529 U.S. at 484. A certificate of appealability will be granted as to this ground.
8.

Grounds 29 & 30: Impermissible Funneling of the Jurors’ Discretion

Haight in Grounds 29 and 30 raises two related arguments involving the sequence of the
jury instructions given at both the guilt and penalty phase. (Pet’r’s Mem. Supp. 113-17; Pet’r’s
Reply 68-69). Haight argues that during the guilt phase, the trial court refused to submit an
instruction on manslaughter prior to the instruction on murder. Instead, the trial court first
instructed the jury on murder, in accordance with the instructions put forth by the prosecution.
Similarly, during the penalty phase, the trial court instructed on aggravating factors before
instructing on mitigating factors, contrary to Haight’s request. Haight argues that the order of
the instructions disturbed his presumption of innocence by channeling the considerations of the
jurors and undermining the reliability of the verdicts contrary to the Sixth, Eighth, and
Fourteenth Amendments. (Pet’r’s Mem. Supp. 114).
Haight III rejected this claim of error regarding the jury instructions. Haight III, 938
S.W.2d at 249. The Magistrate Judge recommended that this Court deny Haight’s request for
relief on this ground because further instructions, as well as the fact that the jury bypassed the
verdict form for the punishment of life without the possibility of parole for 25 years, eliminated
any possible confusion that could have arisen from the order of the jury instructions. (R. & R.

68

205-10). Therefore, according to the Magistrate Judge it could not be argued that the Kentucky
Supreme Court’s holding was in any respect contrary to or an unreasonable application of clearly
established U.S. Supreme Court precedent. (R. & R. 211).
In challenging the Magistrate Judge’s recommendation, Haight only discusses his
argument as to the jury instructions during the guilt phase of his trial and does not include any
specific objections to the Magistrate Judge’s recommendation regarding the jury instructions
given during the penalty phase. Haight contends only that the Kentucky Supreme Court’s
conclusion that it was harmless error to include a finding of extreme emotional disturbance
(“EED”) as an element of manslaughter in the jury instructions contravened or unreasonably
applied clearly established federal law.11 (Pet’r’s Obj. 125-29).
Haight III held that “[a]s the absence or presence of EED is an element of both statutes
[murder and manslaughter], there was no error in the inclusion of such and requiring its
determination beyond a reasonable doubt.” Haight III, 938 S.W.2d at 248. Subsequent to that
opinion, the Kentucky Supreme Court held that “[t]he best way to address the issue [of EED in
an instruction] is to include EED in the murder instruction and make no mention of it in the
manslaughter instruction.” Elery v. Commonwealth, 368 S.W.3d 78, 92 (Ky. 2012). The court
also noted that the inclusion of the additional element of proof of EED in the manslaughter
instruction “‘required the Commonwealth to prove the absence of extreme emotion disturbance
beyond a reasonable doubt in order to obtain a conviction of murder, . . . and to prove the
presence of extreme emotional disturbance beyond a reasonable doubt in order to obtain a
conviction of first-degree manslaughter.’”

Id. at 90 (quoting Baze v. Commonwealth, 965

11

Haight is not procedurally barred from bringing this claim currently because he asserted it in
his state court appeals. (Notice Filing Attach. 1, at 54, DN 126-1). Yet, this is the first time he
has argued this point in his habeas corpus proceedings.
69

S.W.2d 817, 823 (Ky. 1997)). Therefore, the court explained, if the Commonwealth failed to
prove either beyond a reasonable doubt then the jury would have been required to acquit the
defendant. Id. (citing Baze, 965 S.W.2d at 823). Thus, the inclusion of the element of EED in
the manslaughter instruction placed a higher burden on the Commonwealth and was not
prejudicial to the defendant. Id.
Haight argues that the holdings of Haight III, Elery, and Baze run afoul of the U.S.
Supreme Court’s holding in Alabama v. Beck, 447 U.S. 625 (1980). In Beck, the U.S. Supreme
Court held unconstitutional a state statute that prohibited the jury from considering lesserincluded offenses and required that the death penalty be imposed upon a finding of guilt. Beck,
447 U.S. at 637. The U.S. Supreme Court reasoned that the statute enhanced the risk of an
unwarranted conviction because the jury may believe that the defendant committed a crime
lesser than that charged but did not want to acquit the defendant of all charges. Id. at 642-43.
The “fundamental concern in Beck was that a jury convinced that the defendant had committed
some violent crime but not convinced that he was guilty of a capital crime might nonetheless
vote for a capital conviction if the only alternative was to set the defendant free with no
punishment at all.” Schad v. Arizona, 501 U.S. 624, 646 (1991). According to Haight, the
Kentucky Supreme Court’s holding finding harmless error as to the instructions was contrary to
or an unreasonable application of Beck because the instructions given during the guilt phase of
the trial “left the jury with the choice of guilty on capital murder or acquittal.” (Pet’r’s Obj.
131).
Beck is clearly distinguishable from the present case. In Beck, there was absolutely no
instruction as to any lesser-included offenses. Beck, 447 U.S. at 630. The jury was “faced with
an all-or-nothing choice between the offense of conviction (capital murder) and innocence.”

70

Schad, 501 U.S. at 646-47 (internal quotation marks omitted). While Haight claims an error as
to the lesser-included offense instruction, it does not equate with the situation in Beck where the
jurors’ only choice was between acquittal and death. Beck, 447 U.S. at 642-43. Here, the jurors
had a choice to convict Haight of a lesser crime, which renders Beck inapposite. See Slaughter v.
Parker, 450 F.3d 224, 237 (6th Cir. 2006) (holding the petitioner’s claim that the Kentucky
Supreme Court misapplied Beck to be without merit because the petitioner had “an option to
convict [the petitioner] of a lesser, though still violent, crime . . . .”). The Court therefore finds
that Haight III did not unreasonably apply Beck because the instructions to the jury specifically
included the lesser-included offense of manslaughter.
Finding no error, the Court holds that the Magistrate Judge’s recommendation to deny
relief as to these grounds is adopted and Haight’s Objection as to Grounds 29 and 30 is
overruled. The Magistrate Judge recommended the issuance of a certificate of appealability as to
these grounds. The Court agrees that reasonable jurists could debate the Court’s analysis with
respect to this claim. Thus, a certificate of appealability as to Grounds 29 and 30 will be granted.
See Slack, 529 U.S. at 484.
D.

Death Penalty Issues
1.

Ground 40: Electrocution is Cruel and Unusual Punishment

In Ground 40, Haight argues that electrocution is a form of cruel and unusual punishment
in violation of the Eighth Amendment. (Pet’r’s Mem. Supp. 117-20; Pet’r’s Reply 71; Pet’r’s
Second Supp. Obj. 12-13, DN 178). KRS 431.220 provides the option of death by electrocution
or lethal injection for those prisoners who were sentenced to death prior to March 31, 1998. See
KRS 431.220(1)(a). The Magistrate Judge recommended denial of this ground for relief and
denial of a certificate of appealability on the issue because KRS 431.220, as amended in 1998,

71

gives prisoners the option to choose electrocution, and thus electrocution is not mandatory. (R.
& R. 212-13). Haight does not object to the merits of the Magistrate Judge’s recommendation,
but argues that a certificate of appealability should be issued on this ground for relief because
courts in Nebraska and Georgia have found electrocution to be unconstitutional, which indicates
that reasonable jurists could differ on this issue.
Haight’s Objection on this ground is without merit. As the Commonwealth points out in
its response to Haight’s Objection, the fact that two states have declared electrocution
unconstitutional does not establish that reasonable jurists could differ as to whether the Kentucky
Supreme Court’s decision is contrary to federal law. (Resp’t’s Resp. 24). Moreover, the Sixth
Circuit has previously rejected an identical challenge to KRS 431.220 because the statute
provides a death-row inmate with the option of electrocution or lethal injection; thus, the court
held that it need not evaluate the constitutionality of electrocution. See Stanford v. Parker, 266
F.3d 442, 461-62 (6th Cir. 2001).

The Court finds no error in the Magistrate Judge’s

recommendation to deny relief and a certificate of appealability as to Ground 40 and the R&R is
adopted on this point.
2.

Grounds 36 & 38: Lack of Separate and Independent Sentencing
Hearing Under KRS 532.075(1)

In Grounds 36 and 38, Haight argues that he was denied due process when the trial court
did not follow KRS 532.075(1) and failed to prepare a required report for review on the record.
(Pet’r’s Mem. Supp. 120-23; Pet’r’s Reply 70). Haight III found this argument to be without
merit and noted compliance with KRS 532.075, which requires review of a death penalty
judgment by the Kentucky Supreme Court upon notice from the court clerk and a report from the
trial court on a standardized questionnaire. Haight III, 938 S.W.2d at 253-54. The Magistrate
Judge recommended that the Court deny Haight’s claim for relief on these grounds because
72

Haight did not show that it involved a clearly erroneous determination of the facts or that the
Kentucky Supreme Court’s holding was contrary to or an unreasonable application of clearly
established federal law. (R. & R. 299). The Magistrate Judge emphasized that Haight “fails to
cite to any clearly established precedent of the U.S. Supreme Court to support his arguments in
grounds 36 and 38 . . . .” (R. & R. 299).
Haight’s Objection on this ground is mainly a summary of the procedural history and the
Magistrate Judge’s recommendation. (Pet’r’s Obj. 186-88). The only specific objection offered
is a paragraph in which Haight argues that “[w]hen a state fails to abide by its own statutory
commands, it may implicate a constitutionally protected liberty interest.” (Pet’r’s Obj. 187
(citing Fetterly v. Paskett, 997 F.3d 1295, 1300 (9th Cir. 1993)). Although claimed violations of
state law are generally not cognizable in considering a petition for writ of habeas corpus, the
U.S. Supreme Court has left room for the argument that a state-law error could, potentially, “be
sufficiently egregious to amount to a denial of equal protection or of due process of law
guaranteed by the Fourteenth Amendment.” Pulley v. Harris, 465 U.S. 37, 41 (1984).
The Sixth Circuit has previously expressed skepticism that KRS 532.075 creates a due
process interest. See Bowling v. Parker, 344 F.3d 487, 521 (6th Cir. 2003). Moreover, even if
failure to comply with KRS 532.075 could amount to a due process violation, Haight has not
shown that the Kentucky Supreme Court’s factual determination that the statute was substantially
complied with was clearly erroneous so as to overcome the presumption of correctness that this
Court is required to accord state court findings of fact. 28 U.S.C. § 2254(e)(1). There can be no
doubt that regardless of any defect in the trial court’s questionnaire report, the Kentucky
Supreme Court fully considered the substance of Haight’s objections to his conviction and death
sentence in Haight III.

Accordingly, this Court finds no error in the Magistrate Judge’s

73

reasoning, adopts the recommendation of the R&R, and denies Haight’s claims for relief under
Grounds 36 and 38. Furthermore, the Court holds that jurists of reason would not find it
debatable whether Grounds 36 and 38 of the Petition state a valid claim for federal habeas relief
and denies a certificate of appealability as to this claim. See Slack, 529 U.S. at 483-84 (citation
omitted).
3.

Ground 37:
Kentucky’s
Unconstitutional

Death

Penalty

Statute

Is

Facially

In Ground 37, Haight argues that Kentucky’s death penalty statute, KRS 532.025, is
facially unconstitutional. (Pet’r’s Mem. Supp. 123-25; Pet’r’s Reply 71; Pet’r’s Second Supp.
Obj.11-12). Haight III rejected this argument and cited Kentucky Supreme Court decisions
discussing Kentucky’s death penalty statute at length and finding it constitutional. Haight III,
938 S.W.2d at 253-54 (citations omitted). As the Magistrate Judge indicated, courts in this
circuit have overwhelmingly rejected challenges to Kentucky’s death penalty statute. (R. & R.
218-19 (citing McQueen v. Scroggy, 99 F.3d 1302, 1333 (6th Cir. 1996); Slaughter v. Parker,
187 F. Supp. 2d 755, 817-18 (W.D. Ky. 2001))). Haight has not pointed to any changes in U.S.
Supreme Court case law which would alter this holding. Thus, the Court adopts the Magistrate
Judge’s recommendation that the Court deny relief under this claim.
Further, the Magistrate Judge recommended denial of a certificate of appealability on the
issue because “[t]he overwhelming weight of the established case law in this circuit runs directly
contrary to [Haight’s] position, so much so that a reasonable jurist could not disagree.” (R. & R.
219). In opposition, Haight relies on a dissenting opinion in Glossip v. Gross, 135 S. Ct. 2726
(2015), in which Justice Breyer stated:
In 1976, the Court thought that the constitutional infirmities in the death penalty
could be healed; the Court in effect delegated significant responsibility to the
States to develop procedures that would protect against those constitutional
74

problems. Almost 40 years of studies, surveys, and experience strongly indicate,
however, that this effort has failed. Today’s administration of the death penalty
involves three fundamental constitutional defects: (1) serious unreliability, (2)
arbitrariness in application, and (3) unconscionably long delays that undermine
the death penalty’s penological purpose. Perhaps as a result, (4) most places
within the United States have abandoned its use.
I shall describe each of these considerations, emphasizing changes that have
occurred during the past four decades. For it is those changes, taken together with
my own 20 years of experience on this Court, that lead me to believe that the
death penalty, in and of itself, now likely constitutes a legally prohibited “cruel
and unusual punishmen[t].”
Glossip, 135 S. Ct. at 2755-56 (Breyer, J., dissenting) (alteration in original) (quoting U.S.
Const. amend. VIII). Haight contends that this dissenting opinion is evidence that reasonable
jurists could disagree as to the constitutionality of Kentucky’s death penalty scheme. (Pet’r’s
Obj. 188-89).
This Court concludes that a certificate of appealability should issue with respect to this
claim because reasonable jurists could find its assessment of the claim to be debatable or wrong.
The Court takes into consideration the dissent of Justice Breyer, joined by Justice Ginsburg, in
Glossip. Given that Justices Breyer and Ginsburg are unquestionably jurists of eminent reason
and have recently questioned the constitutional viability of the death penalty, a certificate of
appealability for Ground 37 is granted.
4.

Ground 39:
532.075(3)(e)

Unconstitutional Proportionality Review Under KRS

In Ground 39, Haight argues that the sentencing judge did not conduct a proportionality
review as required by KRS 532.075(3)(c), in violation of his due process rights. (Pet’r’s Mem.
Supp. 125-28; Pet’r’s Reply 71; Pet’r’s Second Supp. Obj. 15-16). The Kentucky Supreme
Court rejected this argument on the merits in Haight III. Haight III, 938 S.W.2d at 253-54. The
Magistrate Judge conducted a thorough analysis of the issue and determined that the Kentucky

75

Supreme Court’s holding was neither contrary to nor an unreasonable application of clearly
established federal law, primarily because the U.S. Supreme Court does not require states to
conduct proportionality reviews. Haight objects to the Magistrate Judge’s finding by repeating
word-for-word the arguments in Haight’s Memorandum in Support of his Petition for Habeas
Corpus and asserts here mere disagreement with the Magistrate Judge’s recommendation.
(Pet’r’s Obj. 189-90). His only specific new objection is that the Magistrate Judge “ignore[d] the
constitutional mandate of [Gregg v. Georgia, 428 U.S. 153 (1978)], that proportionality review is
meant to be a check on arbitrariness and capriciousness and that its ineffective implementation
runs afoul of Gregg.” (Pet’r’s Obj. 191).
Gregg does not provide the “constitutional mandate” that Haight contends. As the United
States Supreme Court made clear in Pulley v. Harris, 465 U.S. 37 (1984), comparative
proportionality review is not constitutionally mandated. Id. at 45 (“Needless to say, that some
schemes providing proportionality review are constitutional does not mean that such review is
indispensable.”). In fact, in Pulley, the Court emphasized that the holding of Gregg “did not
hinge on proportionality review” and the lower court “erred in concluding that Gregg required
proportionality review.” Id. at 37, 46. Accordingly, this Court concludes that Gregg does not
clearly establish that proportionality review is required by the U.S. Constitution and finds that
Haight’s Objection is without merit. As the remaining parts of his objection are merely a
recitation of previous arguments in his Petition, the Court reviews the Magistrate Judge’s
recommendation for clear error and finds none.
Because Haight offers no U.S. Supreme Court precedent supporting his notion that the
Kentucky Supreme Court should have compared his case to cases in which the death penalty was
not imposed, this Court concludes he is not entitled to relief on this claim. The Magistrate

76

Judge’s recommendation to deny Haight relief under Ground 39 is adopted by this Court and
Haight’s Objection is overruled. Moreover, the Court agrees with the Magistrate Judge that
jurists of reason would not find it debatable that Ground 39 does not state valid claim for relief
and denies a certificate of appealability as to this claim as well. See Slack, 529 U.S. at 483-84
(citation omitted).
E.

Post-Conviction Proceedings Issues

Grounds 7, 10, 11, and 12 all concern issues related to the state court post-conviction
proceedings. (Pet’r’s Mem. Supp. 128-54; Pet’r’s Reply 72-80; Pet’r’s Second Supp. Obj. 1617). In Ground 7, Haight argues that he was denied a full and fair post-conviction hearing when
the trial court declined his request for an evidentiary hearing. (Pet’r’s Mem. Supp. 129-43). In
Ground 10, Haight argues that he was denied due process in the post-conviction proceedings
when the trial court did not allow him to amend his motion to vacate. (Pet’r’s Mem. Supp. 14347). Similarly, in Ground 11, Haight argues that he was denied due process when the court
during the state post-conviction proceedings denied him the opportunity to file a motion for
expert funding to pursue his claim regarding ineffective assistance of counsel related to his
mental status. (Pet’r’s Mem. Supp. 147-51). Lastly, Haight argues in Ground 12 that he was
denied due process when his discovery request was denied during the state post-conviction
proceedings. (Pet’r’s Mem. Supp. 151-54). Haight IV rejected all of these arguments. Haight
IV, 41 S.W.3d at 442-45.
The Magistrate Judge recommended denial of these claims for relief and noted that the
Sixth Circuit has held that “challenges to the adequacy of post-conviction proceedings are not
matters that may be addressed by way of habeas corpus.” (R. & R. 230 (citing Kirby v. Dutton,
794 F.2d 245 (6th Cir. 1986)). Instead, “[t]he claim of a habeas petitioner ‘must directly dispute

77

the fact or duration of the confinement.’” (R. & R. 230 (quoting Kirby, 794 F.2d at 248)).
“Because the result of habeas review of the adequacy of a post-conviction challenge will not
result in a release from confinement, the scope of the writ does not include such grounds
involving the adequacy of state post-conviction proceedings.” (R. & R. 230-31).
Haight raises two issues as to the R&R on these grounds. First, Haight contends that
these grounds for relief should be reviewable because if he can demonstrate the denial of a full
and fair state post-conviction process, he will be able to establish cause for the procedural default
of specified claims and may be able to prove cause entitling him to an evidentiary hearing to
further develop the facts. (Pet’r’s Obj. 162). Haight contends that these findings will allow him
to receive de novo review of his underlying constitutional claims, which could potentially result
in a release from confinement and his unconstitutional sentence. (Pet’r’s Obj. 162). Haight
argues that this logic is similar to claims for ineffective assistance of counsel for failure to
properly preserve a claim for state court review, and Haight notes that petitioners who prevail on
such ineffective assistance claims are simply given the opportunity to litigate the underlying
constitutional error and are not released from custody. (Pet’r’s Obj. 162).
Haight’s argument that these claims are reviewable because they can eventually lead to a
release from confinement is of no moment. The Sixth Circuit has rejected this same argument
and noted that “[t]hough the ultimate goal” in a case alleging post-conviction error “is release
from confinement, the result of habeas review of the specific issue[] . . . is not in any way related
to the confinement.” Kirby, 794 F.2d at 248. “[T]he Sixth Circuit has consistently held that
errors in post-conviction proceedings are outside the scope of federal habeas corpus review.”
Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007) (citing Kirby, 794 F.2d at 246-47; Roe v.
Baker, 316 F.3d 557, 571 (6th Cir. 2002)). See also York v. Chapman, No. 1:07-CV-00144-JH,

78

2008 WL 2168934, at *20 (W.D. Ky. May 23, 2008) (“A petition for writ of habeas corpus is not
used to challenge errors or deficiencies in State post-conviction proceedings because such claims
are collateral to whether [the petitioner] ‘is in custody in violation of the Constitution or the laws
or treaties of the United States.’” (citations omitted)). Therefore, Haight’s claims relating to
post-conviction errors are not reviewable by this Court.
Haight urges that a certificate of appealability should be issued because “this question is
clearly debatable among jurists of reason where the United States Supreme Court granted
certiorari to decide the question of whether a criminal defendant has a constitutional right to
counsel in state post-conviction.” (Pet’r’s Obj. 163 (citing Martinez, 566 U.S. at 26-27 (Scalia,
J., dissenting))).

To obtain a certificate of appealability, “a habeas prisoner must make a

substantial showing of the denial of a constitutional right, a demonstration that . . . includes
showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner . . . .” Slack, 529 U.S. at 483-84 (internal
quotation marks omitted) (quoting Barefoot, 463 U.S. at 893).

In the Sixth Circuit, it is

abundantly clear that post-conviction proceedings are outside the scope of federal habeas corpus
review and the Court concludes that reasonable jurists could not debate this point. Accordingly,
the Court finds Haight’s Objection to be without merit. The recommendation of the Magistrate
Judge that these claims for relief be denied and that a certificate of appealability not be issued is
hereby adopted.
F.

Instructions and Verdict Form Issues
1.

Ground 23: Refusal of Trial Court to give the jury Haight’s Tendered
Mitigation Instruction

Haight contends that the trial court deprived him of his rights under the Sixth, Eighth, and
Fourteenth Amendments when it refused to tender Haight’s proposed mitigation instruction
79

during the penalty phase. (Pet’r’s Mem. Supp. 154-58; Pet’r’s Reply 81-82; Pet’r’s Second
Supp. Obj. 13-15). Haight requested a jury instruction with specific references to his abusive
background and his limited intelligence, but the mitigation instruction used by the trial court only
referenced broadly any other circumstances that the jury could consider mitigating.

The

Kentucky Supreme Court rejected this argument on the merits:
Appellant claims error in the trial court’s failure to give a specific instruction
directing the jury to consider evidence of his childhood abuse and neglect and
deprived family background. While appellant was permitted to introduce
extensive evidence in this vein, the instruction by which the jury could give effect
to such evidence was general and authorized the jury to consider “any other
circumstances arising from the evidence which you the jury deem to have
mitigating value.” Appellant maintains that this instruction fails to meet the
requirements of Penry v. Lynaugh, 492 U.S. 302 (1989).
In Penry, the court reviewed the Texas capital punishment statute and, with regard
to non-statute mitigating factors, determined the statute to be insufficient. The
court observed that despite evidence and argument relating to the appellant’s
mental retardation and abuse background, the jury was given no vehicle by which
it could express the view that a sentence of less than death was appropriate. It
appeared that upon giving affirmative answers to questions required to be
propounded, the jury was virtually mandated to impose the death penalty and
lacked a vehicle by which to give effect to the background evidence. “The jury
was never instructed that it could consider the evidence offered by Penry as
mitigating evidence and that it could give mitigating effect to that evidence in
imposing sentence.”
The instructions given here imposed no such restriction and rather invited the jury
to broadly review the evidence for circumstances it deemed to have mitigating
value. The admission of evidence relating to abuse and neglect, deprived
background, and mental retardation, followed by argument of counsel as to the
significance of such evidence and the instruction described herein above could
have left no doubt in the mind of the jury that it had a right to consider such
evidence in its penalty determination. A more specific instruction was not
required.
Haight III, 938 S.W.2d at 247-48 (internal citation omitted) (citations omitted).
The Magistrate Judge concluded that this ruling was neither contrary to nor an
unreasonable application of U.S. Supreme Court precedent and recommended denial of Haight’s

80

request for relief under Ground 23. (R. & R. 232-36). Haight’s argument merely expresses
disagreement with the Magistrate Judge’s conclusion. As the Court finds no error with the
Magistrate Judge’s analysis of this issue, the Court adopts the R&R as to Ground 23. It further
agrees that jurists of reason could not disagree and denies a certificate of appealability.
2.

Ground 24: EED Instruction

In Ground 24, Haight argues that that the word “uncontrollably” used in the definition of
EED in his guilt phase jury instruction violated the Sixth, Eighth and Fourteenth Amendments,
as its use is more applicable to the mental state of temporary insanity than extreme emotional
disturbance. (Pet’r’s Mem. Supp. 159-61; Pet’r’s Reply 82). During his trial, Haight requested
that the term “uncontrollably” be removed from the instruction, which request was denied by the
trial court and also rejected by the Kentucky Supreme Court. Haight III, 938 S.W.2d at 249
(“Appellant’s additional claims of error with respect to the instructions have been reviewed and
found to be without merit.”). In recommending denial of Haight’s request for relief per Ground
24, the Magistrate Judge concluded that Haight improperly relied on state law rather than clearly
established federal law and noted that “it is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions.” (R. & R. 236-38 (quoting Estelle,
502 U.S. at 67-68)).
In his Objection, Haight cites for the first time U.S. Supreme Court precedent in support
of this ground. The crux of Haight’s Objection is that “[c]learly established federal law holds
that [] Haight has a federal due process right to have the jury properly instructed as to the
elements of the crime and for the jury to find the elements of the crime beyond a reasonable
doubt.” (Pet’r’s Obj. 170 (citing In re Winship, 397 U.S. 358 (1970); Sandstrom v. Montana,
442 U.S. 510 (1979))). Further, Haight argues that “when the defense to the crime is one of

81

mens rea, the criminal defendant has a similar federal constitutional right to have the jury
properly instructed as to the key element in the case and in the defense.” (Pet’r’s Obj. 170).
The Court agrees that a federal due process right exists to have the jury properly
instructed as to the elements of the crime. In re Winship, 397 U.S. at 364. Yet, Haight does not
elaborate as to how U.S. Supreme Court precedent was unreasonably applied or was contrary to
Haight III’s holding that there was no error in the trial court’s EED instruction. Haight’s jury
was instructed that the Commonwealth was required to prove each element of first-degree
murder beyond a reasonable doubt and that Haight could not be convicted of that offense unless
the Commonwealth met its burden. Moreover, an EED instruction was offered to the jury. This
Court is satisfied that Haight III was not contrary to or an unreasonable application of U.S.
Supreme Court precedent. Therefore, Haight’s claim for relief under Ground 24 is denied, and
because reasonable jurists could not debate this holding, a certificate of appealability is denied.
3.

Ground 25: EED Mitigation Instruction

In Ground 25, Haight argues that various constitutional rights were violated when the
trial court applied an incorrect definition of extreme mental or emotional disturbance. Haight III
ruled that the trial court’s instruction was sufficient. Haight III, 938 S.W.2d at 249. The
Magistrate Judge determined that the Kentucky Supreme Court’s finding was not contrary to or
an unreasonable application of clearly established federal law.

(R. & R. 238-41).

The

Magistrate Judge also denied a certificate of appealability as to this claim. (R. & R. 241).
In objecting to the Magistrate Judge’s conclusion, Haight merely disagrees with the
Magistrate Judge’s assessment and reiterates the same arguments that were made in his Petition.
(Pet’r’s Obj. 171). The Court has conducted de novo review of the Magistrate Judge’s R&R and
finds no error. Therefore, the Magistrate Judge’s recommendation is adopted and Haight’s

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Objection is overruled.

Relief as to Ground 25 is denied.

Additionally, a certificate of

appealability is denied.
4.

Ground 26: First Degree Manslaughter Instruction

Haight argues in Ground 26 that the trial judge erred when he included EED as an
element of first-degree manslaughter. Haight III rejected this argument on the merits. Haight
III, 938 S.W.2d at 249.

The Magistrate Judge found this was neither contrary to nor an

unreasonable application of clearly established federal law. In fact, this Court rejected Haight’s
same argument above in the discussion of Grounds 29 and 30, albeit in a different context.
Haight now reiterates his argument that the instruction is in violation of In re Winship
and Sandstrom v. Montana, 442 U.S. 510 (1970). (Pet’r’s Obj. 173-76). According to Haight, a
due process violation occurred when the burden of proof on the element of EED was improperly
shifted to the Commonwealth to disprove EED.

(Pet’r’s Obj. 175).

In re Winship and

Sandstrom, however, both involve situations where the burden of proof was improperly placed
on the defendant. See In re Winship, 397 U.S. at 364 (holding that due process is only satisfied if
the prosecution proves every element of a charged offense beyond a reasonable doubt);
Sandstrom, 422 U.S. at 524 (holding that a jury instruction that eliminates or shifts a state’s
burden to prove every element of an alleged crime beyond a reasonable doubt violates a
defendant’s due process rights). This is plainly not the situation at hand. Moreover, as the
Kentucky Supreme Court has noted, adding the element of EED to a manslaughter instruction
actually places a higher burden on the Commonwealth to prove its case. Baze, 965 S.W.2d at
823.
The rest of this portion of Haight’s Objection focuses on Kentucky state law which the
Court here will not address. See Estelle, 502 U.S. at 67-68 (“[F]ederal habeas corpus relief does

83

not lie for errors of state law . . . . [W]e reemphasize that it is not the province of a federal
habeas court to reexamine state-court determinations on state-law questions.” (internal citation
omitted)).

Accordingly, Haight has not demonstrated how the Kentucky Supreme Court’s

decision was contrary to or an unreasonable application of clearly established federal law. Thus,
after de novo review the Court adopts the R&R’s recommendation as to Ground 26 and denies
this request for relief. Furthermore, because jurists of reason could not find this denial of relief
debatable, a certificate of appealability is also denied.
5.

Ground 28: Evidence of Parole Eligibility

In Ground 28, Haight contends that the trial judge erred when he refused to allow
mitigating evidence of Haight’s parole ineligibility during the guilt phase of the trial and failed to
provide jurors accurate parole guidance to rebut the prosecutor’s argument of future
dangerousness. (Pet’r’s Mem. Supp. 167-70; Pet’r’s Reply 85-86). Haight III rejected this
argument on its merits stating only that, “[a]ppellant’s claim concerning the exclusion of
evidence relating to his parole eligibility upon a previous criminal conviction was irrelevant and
properly excluded.” Haight III, 938 S.W.2d at 249. The Magistrate Judge recommended denial
of this ground for relief because evidentiary decisions of the trial court cannot be second-guessed
by this Court upon a habeas petition. (R. & R. 245-49). Additionally, as to Haight’s argument
that the Kentucky Supreme Court’s decision was contrary to Simmons v. South Carolina, 512
U.S. 154 (1994), the Magistrate Judge concluded that Haight could not show prejudice even if
Haight III was somehow contrary to Simmons, because the jury instruction tendered by Haight
also stated that the jury should ignore evidence relating to parole eligibility. (R. & R. 246-47).
Haight objects to the Magistrate Judge’s recommendation, repeating many of the same
arguments presented in his original petition. As his arguments are simply reiterations and mere

84

disagreements with the Magistrate Judge’s conclusion and this Court upon de novo review does
not find error in the Magistrate Judge’s analysis, the Court holds that the R&R pertaining to
Ground 28 is adopted.

Haight cannot demonstrate that he suffered prejudice, as his own

tendered instruction plainly informs the jury to ignore the matter of parole eligibility.
Furthermore, this Court concurs with the Magistrate Judge’s recommendation that a certificate of
appealability be denied as to this claim.
6.

Ground 31: Examination by Neuropsychologist

Haight argues that the trial court erred when it refused to permit the defense to have
Haight examined by a neuropsychologist before his sentencing. (Pet’r’s Mem. Supp. 171-74;
Pet’r’s Reply 86-88). Haight III rejected Haight’s claim, stating:
Appellant’s claim that a twenty-year-old mental health evaluation discovered
during trial would have affected the case is without merit. Appellant had full
benefit of mental health evaluations and experts and there was no abuse of
discretion in the trial court’s failure to order another such examination.
Moreover, the trial court gave all proper consideration to the mitigating evidence
prior to imposition of its final judgment.
Haight III, 938 S.W.2d at 249. Haight contends that this holding is an unreasonable application
of Hitchcock v. Dugger, 481 U.S. 393 (1987); Skipper v. South Carolina, 476 U.S. 1 (1986),
Eddings v. Oklahoma, 455 U.S. 104 (1982); and Lockett v. Ohio, 438 U.S. 586 (1978), because
the trial court’s denial of the motion withheld from the court at sentencing potential mitigating
evidence of organic brain damage.

(Pet’r’s Mem. Supp. 171-74).

The Magistrate Judge

recommended denial of relief under this claim because Haight III was not contrary to or an
unreasonable application of any clearly established federal law and noted that “[n]othing in
Haight’s petition calls into question the above conclusions in Haight III.” (R. & R. 252).
Haight now objects to the recommendation.

First, Haight argues that the forensic

psychologist who evaluated Haight before his trial was not an appropriate expert to determine
85

whether Haight suffered from organic brain damage. (Pet’r’s Obj. 134). Second, he posits that
the trial court could not properly assess whether Haight suffered from organic brain damage
merely by observing him in court. (Pet’r’s Obj. 134-35). Third, Haight contends there is not a
“possibility” that he suffers from brain damage as the Magistrate Judge characterized, but instead
there “is an all but conclusive probability.” (Pet’r’s Obj. 135). Finally, Haight argues that,
contrary to the Magistrate Judge’s assertions, there is absolutely no evidence in the record that
the trial judge considered Haight’s brain damage in pronouncing final judgment in the case
because no motion to appoint an expert is in evidence. (Pet’r’s Obj. 136).
These arguments are without merit. Importantly, the 1974 psychological report did not
conclude that Haight had an organic brain deficiency but instead alluded to the possibility of
such. Although Haight now argues that it “is all but conclusive probability” that he suffers from
organic brain damage, the Kentucky Supreme Court at the time of its holding did not have “the
newly minted expert” reports in front of it; therefore, those reports are irrelevant as to whether
the Kentucky Supreme Court’s holding was an unreasonable application of United States
Supreme Court precedent. Regardless, the Court agrees with the Magistrate Judge that the
record indicates that the trial court did consider the 1974 report. As stated in the R&R:
Haight’s 1974 mental health evaluation was put before the trial court prior to his
March, 1994 sentencing. The apparent decision of the trial court to give more
weight to the evaluation of Haight’s own trial expert in adopting the
recommendation of the jury for the death penalty was not a refusal to consider
mitigating evidence, but rather an appropriate exercise of the trial court’s own
judgment in evaluating such evidence in light of the other mental health testimony
offered at trial.
(R. & R. 253). Accordingly, the Court agrees with the Magistrate Judge that the Kentucky
Supreme Court’s holding was not an unreasonable application of or contrary to the U.S. Supreme
Court’s holdings in Hitchcock, Skipper, Eddings, or Lockett. The Court therefore holds that the

86

R&R as it pertains to Ground 31 is adopted and Haight’s Objection is overruled. Further, the
Court does not believe that reasonable jurists could debate this point. See Slack, 529 U.S. at 484.
7.

Ground 32: Instruction on Proof Beyond a Reasonable Doubt

In Ground 32, Haight argues that the trial court improperly instructed the jury regarding
proof beyond a reasonable doubt.

(Pet’r’s Mem. Supp. 174-76).

Haight III rejected this

contention as lacking merit. Haight III, 938 S.W.2d at 249. The Magistrate Judge recommended
denial of Haight’s request for relief as to Ground 32 because Haight does not cite to any clearly
established precedent of the U.S. Supreme Court that would require the trial court to define
reasonable doubt in the jury instructions. (R. & R. 253-56). In support, the Magistrate Judge
cites Whiteside v. Parke, 705 F.2d 869, 871-73 (6th Cir. 1982), where the Sixth Circuit
previously explained that “Kentucky courts have long followed the rule that the failure to define
reasonable doubt is not error, and [] RCr 9.56 appears to be a codification of that view.”
Whiteside, 705 F.2d at 871 (citing Swopshire v. Commonwealth, 55 S.W.2d 356, 358 (Ky.
1932)).
Haight attempts to distinguish Whiteside from his case, but this does not change the fact
that he points to no U.S. Supreme Court precedent in support of his position. (Pet’r’s Obj. 17879). As the Magistrate Judge noted, “Haight cites no clearly established precedent of the U.S.
Supreme Court that would require a definition of reasonable doubt, contrary to the longstanding
state law of Kentucky.” (R. & R. 256). In his present objection, Haight does not add any
contravening case law. Therefore, the Court finds this objection to be meritless and accepts the
Magistrate Judge’s R&R. A certificate of appealability as to Ground 32 will be denied.

87

G.

Prosecutorial Misconduct
1.

Ground 34: Prejudicial Bad Acts Evidence

Haight contends in Ground 34 that the prosecution engaged in misconduct through the
introduction of prior bad acts evidence that distracted the jury from its duty to assess his mental
state at the time the offenses were committed and thus denied him an opportunity to present a
complete defense in violation of California v. Trombetta, 467 U.S. 479 (1984), and In re Oliver,
333 U.S. 257 (1984). (Pet’r’s Mem. Supp. 176-86; Pet’r’s Reply 88-89). Haight III rejected this
argument, explaining:
Appellant next attacks the judgment on grounds that his trial was “polluted . . .
with irrelevant and immaterial collateral bad acts.” He contends, among other
things, that such bad acts precluded a “meaningful opportunity” to present his
EED defense to an open and receptive jury. Particularly he has identified
evidence of his attempted murder of Trooper Yates; evidence as to the
circumstances surrounding his guilty plea to that crime; evidence as to his theft of
a farmhand’s Camaro automobile while he was a fugitive; evidence of the
burglary of the Shuffett home; evidence as to Tony Minnix’s fear of appellant;
and fear of appellant’s theft of the Sasser vehicle.
It should be remembered that at trial appellant’s defense was extreme emotional
disturbance and it was the Commonwealth’s burden to prove the absence of EED.
While the relevant time frame for proof of appellant’s mental state was the time of
the murders, evidence as to his mental state shortly before and after the murders
was relevant. The Commonwealth maintains that from the time of appellant’s
escape from the Johnson County Jail until the time of his capture, his behavior
amounted to a continuing course of conduct with all events being inextricably
intertwined with the crimes charged. There was a legitimate basis in evidence law
for admission of each such item of evidence and it was for the trial court to
determine whether the probative value outweighed the prejudicial effect.
It is difficult to ignore that after his escape from the Johnson County Jail appellant
went on a crime spree and along the way murdered two victims. We have found
no basis to disturb the trial court’s rulings on the admission of the challenged
evidence. Moreover, any error in this regard would have been entirely harmless.
We have carefully examined appellant’s claims as set forth herein above and
considered KRE 404(b) and this Court’s decision in O’Bryan v. Commonwealth,
Ky., 634 S.W.2d 153 (1982). We are unable to find an abuse of trial court
discretion in this regard.

88

Appellant’s complaints concerning the cross-examination of Randy Wheeler and
the rebuttal testimony of Pamela Marcum are insubstantial and need not be
addressed. Likewise, as to introduction of the three crime scene photographs,
there was no error.
Haight III, 938 S.W.2d at 252 (internal citations omitted) (citation omitted).
The Magistrate Judge recommended denial of Haight’s request for relief on this ground
because Haight did not demonstrate how the holding of Haight III constituted an unreasonable
application of existing U.S. Supreme Court precedent. (R. & R. 260). Further, the Magistrate
Judge noted that “the arguments themselves do not run so much to prosecutorial misconduct as
they do the evidentiary rulings of the state trial and appellate courts,” emphasizing that
“evidentiary rulings of the state courts based on state law are not ordinarily subject for habeas
corpus relief . . . .” (R. & R. 260). In his objection, Haight focuses on the evidentiary rulings
rather than prosecutorial misconduct and argues that “erroneous evidentiary rulings can, in
combination, rise to the level of a due process violation.” (Pet’r’s Obj. 181 (quoting Montana v.
Egelhoff, 518 U.S. 37, 53 (1996))). Haight further argues that “[t]he mountain of improperly
admitted other crimes and bad acts evidence . . . violated [Haight’s] federal constitutional rights
to due process of law . . . .” (Pet’r’s Obj. 181).
Federal habeas corpus review of evidentiary rulings based on state law is “extremely
limited.” Giles v. Schotten, 449 F.3d 698, 704 (6th Cir. 2006) (internal quotation marks omitted)
(citation omitted). An issue concerning the admissibility of evidence or error in state law does
not rise to a level of constitutional magnitude unless it can be viewed as so egregious that the
petitioner was denied a fundamentally fair trial. Estelle, 502 U.S. at 67-68. Furthermore, “the
Supreme Court has defined ‘very narrowly’ the category of infractions that violates ‘fundamental
fairness.’” Bey v. Bagley, 500 F.3d 514, 522 (6th Cir. 2008) (quoting Dowling v. United States,
493 U.S. 342, 352 (1990)).
89

Fundamental fairness is violated when erroneously admitted evidence is “material in the
sense of a crucial, critical, highly significant factor,” and the probative value of the evidence is
so conspicuously outweighed by its inflammatory content that a defendant’s constitutional right
to a fair trial has been violated. Lesko v. Owens, 881 F.2d 44, 52 (3d Cir. 1989). See also Ege v.
Yukins, 485 F.3d 364, 375 (6th Cir. 2007) (“‘Whether the admission of prejudicial evidence
constitutes a denial of fundamental fairness turns upon whether the evidence is material in the
sense of a crucial, critical highly significant factor.’” (quoting Brown v. O’Dea, 227 F.3d 642,
645 (6th Cir. 2000))). In conducting this inquiry, the decision of the state trial court is given
great deference because it is in a unique position to assess the relative probative value and
inflammatory effect of proffered testimony. Lesko, 881 F.2d at 52 (citing United States v.
Guerrero, 803 F.2d 783, 785 (3d Cir. 1986)).
Because the other-acts evidence at issue here was being offered for the relevant purpose
of demonstrating Haight’s mental state to rebut his EED defense, this evidence was subject only
to the limitations contained in Kentucky Rules of Evidence 403. “Rule 403’s balancing of the
probative value of such testimony against the danger of unfair prejudice is a task properly
reserved for the sound discretion of the trial judge.” Clark v. O’Dea, 257 F.3d 498, 503 (6th Cir.
2001) (citing Rake v. Commonwealth, 450 S.W.2d 527, 528 (Ky. 1970)). As the Magistrate
Judge noted, and the Court agrees, Haight has adduced no explanation as to how the trial court’s
determination that the probative value of the other-acts evidence outweighed the danger of unfair
prejudice was unreasonable. Accordingly, it cannot be said that the trial court’s ruling was “an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding” to warrant habeas relief. 28 U.S.C. § 2254(d). Therefore, the Magistrate Judge’s
recommendation as to Ground 34 is adopted and Haight’s Objection is overruled. Additionally,

90

the Court adopts the Magistrate Judge’s recommendation that a certificate of appealability should
not issue as to this ground for relief.
2.

Ground 35: Prosecutorial Closing Argument

Haight asserts that several statements made by the prosecution during closing arguments
amounted to a violation of his federal due process rights.12 (Pet’r’s Mem. Supp. 186-92; Pet’r’s
Reply 88-89). The Kentucky Supreme Court held:
Appellant’s extraordinary history of violent criminal conduct was properly placed
before the jury. Moreover, while the “prison is doing nothing” argument by the
Commonwealth is of concern, it falls short of the argument condemned in Perdue
v. Commonwealth, Ky., 916 S.W.2d 148 (1996), whereby the jury was exhorted to
give the death penalty as the only way to prevent the defendant from killing again.
The argument here is qualitatively different from the argument condemned in Ice
v. Commonwealth, Ky., 667 S.W.2d 671, 676 (1984). This Court has long
observed the principle that wide latitude is permitted during closing argument. In
view of this principle and upon our further belief that any error which may have
occurred in this regard was harmless, there are no grounds for reversal on this
issue.
Appellant’s unpreserved claim of improper argument designated “Death as
Deterrent” does not rise to the level of palpable error. The views set forth
hereinabove sufficiently answer these contentions.
Haight III, 938 S.W.2d at 252-53 (internal citation omitted).
The Magistrate Judge concluded that this was not an unreasonable application of or
contrary to clearly established federal law. (R. & R. 262-71). The Magistrate Judge found that
none of the challenged remarks of the Commonwealth during closing arguments “were improper,
nor would such remarks, if assumed to be improper, have infected Haight’s trial with
fundamental unfairness so that his resulting conviction and death sentence constituted a denial of
due process.” (R. & R. 268). Haight asserts that the Magistrate Judge is incorrect and further
12

The various statements to which Haight objects are: the Commonwealth’s reference to future
dangerousness; an improper “send a message” argument to the jury; reference to a 1987 wanton
endangerment conviction; and an unfair denigration of a psychologist’s testimony. (Pet’r’s Obj.
182-85).
91

states that clearly established federal law does provide that an improper prosecutorial argument
can rise to the level of a due process violation.
“prosecutorial misconduct here is patent.”

(Pet’r’s Obj. 186).

(Pet’r’s Obj. 186).

He asserts that the

Haight claims that “the

prosecutor’s argument in [his] case, in its entirety, asks the jury to sentence [him] to death based
on emotion” and that this improper argument led to a deprivation of due process in Haight’s trial.
(Pet’r’s Obj. 186).
There is no question that improper prosecutorial argument can rise to the level of a due
process violation; however, Haight has not demonstrated how the alleged improper comments by
the prosecutor in this case violated due process. On habeas review, the question is whether the
alleged improper comments of the prosecutor “so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974); Darden, 477 U.S. at 168; Kincade v. Sparkman, 175 F.3d 444, 446 (6th Cir. 1999).
Having reviewed the instances of alleged prosecutorial misconduct during closing arguments of
which Haight complains, the Court is not persuaded that the Kentucky Supreme Court’s
resolution of this claim was an unreasonable application of DeChristoforo.13 Therefore, after de
novo review, the Magistrate Judge’s recommendation that Haight’s claim for relief under Ground
35 be denied. A certificate of applicability should not be issued as to this claim because
reasonable jurists could not debate its lack of merit.

13

Haight also cites to Griffin v. California, 380 U.S. 609 (1965), in support of his argument that
the Kentucky Supreme Court’s holding is infirm. Griffin deals with prosecutorial misconduct in
the context of a prosecutor’s comments during the trial that violated the petitioner’s Fifth
Amendment rights and is inapplicable. See id. at 612.
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H.

Miscellaneous Issues
1.

Ground 41: Ineffective Assistance Due to Videotape Record

In Ground 41, Haight argues that the use of a videotape trial record results in a less than
full and fair review. (Pet’r’s Mem. Supp. 276). Haight avers that he was subjected to ineffective
assistance of counsel due to “inherent inadequacies of the videotape record of his trial . . . .”
(Pet’r’s Mem. Supp. 276). The Magistrate Judge concluded that Haight raised only a Sixth
Amendment ineffective assistance of counsel claim related to the videotape transcript because on
appeal, “Haight made no arguments relating to the language of KRS 532.075 as a statutory basis
on which to rest a constitutional obligation to provide Kentucky defendants with a written
transcript of their trials.” (R. & R. 277). Thus, the Magistrate Judge concluded that Haight’s
claim in this regard was procedurally barred and only the ineffective assistance of counsel claim
as to the videotape record survived. (R. & R. 276-77). The Magistrate Judge further explained
that Haight’s ineffective assistance of counsel claim “is materially deficient in all respects” as
Haight has failed to discuss the deficient performance and prejudice prongs of the Strickland test.
(R. & R. 280).
In objecting on this issue, Haight repeats the same merits arguments raised in his Petition,
which the Magistrate Judge concluded were procedurally barred, without explaining how his
claim survives the procedural bar. (Pet’r’s Obj. 192-93). Upon review, the Court finds no error
in the Magistrate Judge’s conclusion that Haight’s claim regarding the constitutionality of the
use of a videotape trial record is procedurally barred. Furthermore, the Court finds no error in
the Magistrate Judge’s conclusion that Haight’s ineffective assistance of counsel claim regarding
the videotape record is without merit. Accordingly, the Court adopts the recommendation of the

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Magistrate Judge denying relief under Ground 41 and also denying issuance of a certificate of
appealability.
2.

Ground 43: Ineffective Assistance of Counsel on Appeal

In Ground 43, Haight argues that his appellate counsel on direct appeal was ineffective
for failing to challenge the trial court’s refusal to give a jury instruction on the lesser-included
offense of theft. (Pet’r’s Mem. Supp. 200-08; Pet’r’s Reply 91-105). Haight did not raise this
claim of error in his RCr 11.42 motion to vacate or prior to the Kentucky Supreme Court
decision in Haight IV that affirmed the denial of post-conviction relief. See Haight IV, 41
S.W.3d at 449.
The Magistrate Judge recommended denial of Ground 43 due to a procedural bar. (R. &
R. 279-84). The Magistrate Judge relied upon this Court’s previous order denying an evidentiary
hearing as to this claim on the basis that it was procedurally barred. (R. & R. 282-83 (citing
Mem. Op. 10-13, DN 85)). The Magistrate Judge also noted that this Court later held that the
exception to the procedural bar articulated in Martinez and Trevino did not affect the procedural
bar as to Haight’s claim because “Martinez applied only when the underlying claim was one for
ineffective assistance of counsel at trial.” (Mem. Op. 20, DN 135 (citing Hodges v. Colson, 727
F.3d 517, 531 (6th Cir. 2013))). Recognizing that the holdings of this Court bind magistrate
judges, the Magistrate Judge recommended denial as to Haight’s claim of ineffective assistance
of appellate counsel as being time-barred. (R. & R. 284).
Haight now argues that Hodges, which holds that Martinez does not excuse the default of
a claim of ineffective assistance of appellate counsel is wrong and distinguishable from his case.
(Pet’r’s Obj. 141-43 (citing Hodges, 727 F.3d at 531)). Citing to Nguyen v. Curry, 736 F.3d
1287 (9th Cir. 2013), where the Ninth Circuit held that the Martinez exception does apply to

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ineffective assistance of appellate counsel claims, Haight argues that Hodges was wrongly
decided. However, the Sixth Circuit recently discussed the Nguyen decision while reaffirming
the rule articulated in Hodges. See Porter v. Genovese, No. 16-5317, 2017 WL 167469, at *5
(6th Cir. Jan. 17, 2017) (“Yes, the Ninth Circuit sees this differently. But this does not, as
[petitioner] argues, mean that there is ‘cause’ to excuse his default . . . .” (internal citation
omitted)). Rejecting a similar argument, the Sixth Circuit emphasized “the law of this circuit is
that Martinez/Trevino’s limited exception does not extend to claims of ineffective assistance of
appellate counsel.” Id. (citing Hodges, 727 F.3d at 531). The Court follows, as it must, the
binding precedent of this circuit and holds that the Martinez exception does not apply in this
instance.
The Sixth Circuit has made abundantly clear that the equitable exception carved out in
Martinez and Trevino does not apply to claims of ineffective assistance of appellate counsel. See
id. Therefore, the Magistrate Judge’s recommendation that Haight’s claim for relief under this
ground be denied because it is procedurally barred is adopted and Haight’s Objection is
overruled. The Magistrate Judge recommended the issuance of a certificate of appealability, and
based on Nguyen, the Court agrees.
3.

Ground 44: Ineffective Assistance of Trial and Appellate Counsel
regarding and the Wanton Murder Charge Instruction

Ground 44 seeks relief for ineffective assistance of counsel due to the failure of Haight’s
trial counsel to tender an instruction on wanton murder as an alternative to intentional murder.
(Pet’r’s Mem. Supp. 208-21; Pet’r’s Reply 106-08). According to Haight, a conviction of
wanton murder would have eliminated one of two aggravating circumstances and he potentially
could have avoided the death penalty. See KRS 532.025. Haight’s claim involves ineffective
assistance of trial counsel in not requesting the wanton murder instruction; ineffective assistance
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of appellate counsel in not presenting the instruction issue on direct appeal; and ineffective
assistance of post-conviction counsel in failing to raise the issue in the initial RCr 11.42 motion.
(Pet’r’s Mem. Supp. 208-21; Pet’r’s Reply 106-08). The Magistrate Judge noted that, as above
with Ground 43, this Court has previously held that these claims were procedurally barred when
ruling Haight was not entitled to an evidentiary hearing. (R. & R. 285 (citation omitted)).
As to Haight’s ineffective assistance of trial counsel claims, this Court held that Haight’s
claims were procedurally defaulted and that Haight could not establish cause and prejudice to
excuse his procedural default. (Mem. Op. 22, DN 135 (“[E]ven 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.”)). This Court
further noted that Haight’s counsel had a strategic reason for not requesting a wanton murder
charge because “wanton murder is not a lesser-included offense of intentional murder, but is
another form of committing murder.” (Mem. Op. 22, DN 135 (citing Ratliff v. Commonwealth,
194 S.W.3d 258, 275 (Ky. 2006))). Further, this Court pointed out that both intentional murder
and wanton murder are capital offenses, meaning Haight still would have potentially faced the
death penalty if convicted of wanton murder. (Mem. Op. 22, DN 135 (citing KRS 507.020)).
Accordingly, this Court has already ruled that Haight cannot show cause and prejudice for the
procedural default of this ineffective of trial counsel claim. Haight’s Objection does not provide
him relief from this holding.
Further, as discussed above in Ground 43, the Sixth Circuit holds that the equitable
exception in Martinez and Trevino does not apply to ineffective assistance of appellate counsel
claims. Porter, 2017 WL 167469, at *5 (citing Hodges, 727 F.3d at 531). Because Haight did

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not raise this claim in his Rule 11.42 petition, this claim is procedurally defaulted. See Haight V,
2007 WL 2404494, at *3 (holding that Haight’s complaint regarding the wanton murder claim
“should have been raised in the RCr 11.42 motion or on direct appeal,” and was therefore
procedurally defaulted). As this Court has previously indicated, all of Haight’s claims in regard
to Ground 44 are procedurally defaulted. Therefore, the Magistrate Judge’s recommendation to
deny this ground for relief is adopted. Further, consistent with Ground 43, the Court accepts the
Magistrate Judge’s recommendation in favor of issuing a certificate of appealability for Ground
44.
4.

Ground 45: Conflict of Counsel

In Ground 45, Haight argues that his post-conviction attorneys were ineffective. (Pet’r’s
Mem. Supp. 213-18; Pet’r’s Reply 108-09). Specifically, Haight claims that a conflict of interest
existed because his attorneys at trial, on direct appeal, and the initial post-conviction proceedings
were all employed by the Kentucky Department of Public Advocacy. (Pet’r’s Mem. Supp. 21318; Pet’r’s Reply 108-09). Therefore, Haight avers that this conflict of interest was in violation
of the Sixth Amendment and deprived him of a fair trial, reliable verdict, and sentence. (Pet’r’s
Mem. Supp. 213-18; Pet’r’s Reply 108-09). The Kentucky Supreme Court never ruled on this
ground and now Respondent argues that the claim is procedurally barred.
The Magistrate Judge concluded that this claim fails on the merits, referencing this
Court’s prior order in which it held that that Haight could not show good cause for discovery.
This Court explained:
Haight claims that his counsel during state post-conviction proceedings were
ethically disqualified from representing him. The magistrate, however, correctly
concluded that this is a state law issue with which federal habeas corpus is
unconcerned. The Constitution confers no right to any counsel whatsoever in
state post-conviction proceedings. Coleman, 501 U.S. at 752; Murray v.
Giarratano, 492 U.S. 1 (1989) (applying this rule to capital cases). It follows that
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there is no constitutional right to unconflicted counsel in such proceedings.
Furthermore, whether counsel was disqualified is entirely a question of state law.
This is simply not a ground for finding that Haight is “in custody in violation of
the Constitution or laws or treaties of the United States.”
(Mem. Op. 14, DN 85 (quoting 28 U.S.C. § 2254(a))).
Haight’s

contention

is

that

“post[-]conviction

counsel’s

conflict

of

interest

may . . . constitute cause to overcome a procedural default.” (Pet’r’s Obj. 200). Haight does
little to refute this Court’s prior ruling that “there is no constitutional right to unconflicted
counsel in [post-conviction] proceedings.” (Disc. Order, 15). After de novo review, this Court
adopts the Magistrate Judge’s recommendation and denies relief under this claim because it is
established that “the right to appointed counsel extends to the first appeal of right, and no
further.” Finley, 481 U.S. at 555. Haight, therefore, had no right under the Sixth Amendment to
counsel in his post-conviction relief proceedings; thus, any conflict his appointed appellate
counsel may have had cannot offend the Sixth Amendment.
The Magistrate Judge recommended that a certificate of appealability should not be
issued. (R. & R. 307-08). Haight contends that a certificate of appealability should be issued
because “[g]iven the recent reshaping of the legal landscape relating to equitable principles,
conflict and abandonment . . . and the resulting change in post-conviction counsel performance
evaluation calculus . . . jurists of reason could disagree with the Court’s resolution of this claim.”
(Pet’r’s Obj. 204). Despite any recent developments in case law relating to post-conviction
performance, the Court concludes that it is sound and well-established in U.S. Supreme Court
precedent that Haight has no Sixth Amendment right to effective assistance of post-conviction
counsel. Jurists of reason could not debate this, and a certificate of appealability for Ground 45
will not be issued.

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5.

Ground 42: Cumulative Error

In Haight’s final ground for relief, he asserts that the cumulative effect of the errors
discussed above deprived him of due process of law. (Pet’r’s Mem. Supp. 218-20; Pet’r’s Supp.
9-11). Haight asks the Court to consider the finding of constitutional violations that amounted to
harmless errors in tandem when deciding whether to grant habeas relief under this ground for
relief. (Pet’r’s Mem. Supp. 219). The Magistrate Judge recommended denial of relief because
“[t]he Sixth Circuit has repeatedly held that cumulative error claims are not cognizable in the
setting of habeas corpus because the Supreme Court has yet to address the issue.” (R. & R. 29293 (citing Williams v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006))).

Furthermore, the

Magistrate Judge concluded that even if the cumulative effect of the claims of ineffective
assistance of counsel were considered to determine prejudice under the Strickland standard,
Haight cannot show that he was “prejudiced [] in the outcome of the state court proceedings,
given the overwhelming nature of the evidence of his guilt.” (R. & R. 293).
Haight explains that he “is not asking this court to create a new rule of law . . . . [but] is
merely requesting this court to analyze [Haight’s] claim in a new light.” (Pet’r’s Obj. 194).
Haight restates his original argument that this Court should consider the accumulation of
harmless errors and grant him relief. (Pet’r’s Obj. 194). The Court does not see how Haight’s
request to “view[] the claim in a new light” is any different than raising a cumulative error claim.
As stated by the Magistrate Judge, the Sixth Circuit has expressly held that cumulative error
claims are not cognizable claims in habeas corpus. Sheppard v. Bagley, 657 F.3d 338, 348 (6th
Cir. 2011) (citing Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005)). Even assuming that the
Sixth Circuit did recognize a cumulative error claim, a cumulative error claim fails where there

99

are simply no errors to cumulate. See Getsy v. Mitchell, 495 F.3d 295, 317 (6th Cir. 2007) (en
banc); Baze, 371 F.3d at 330.
Further, Haight argues that “the Magistrate Judge is incorrect in refusing to consider a
cumulative error review concerning issues of ineffective assistance of counsel.” (Pet’r’s Obj.
195). However, the Magistrate Judge did not refuse to consider cumulative error in the context
of ineffective assistance of counsel. Rather, the Magistrate Judge explained that consideration of
such cumulative error was to no avail for Haight because he could not show prejudice in the
outcome of the state court proceedings as a result of the overwhelming evidence of guilt. (R. &
R. 293). Haight does not dispute this point. Therefore, the Magistrate Judge’s recommendation
is adopted, this ground for relief is denied, and a certificate of appealability will not be issued.
Since Haight has not stated a cognizable claim for relief, jurists of reason could not find Haight’s
claim debatable.
V.

CONCLUSION

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

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

Law, and Recommendation (DN 166) is OVERRULED;
2.

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

Recommendation (DN 160) is ADOPTED to the extent that it does not conflict with the opinion
of this Court;
3.

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

4.

Petitioner’s Motion for Summary Judgment (DN 141) is DENIED.

5.

The Court does not believe that a certificate of appealability should be issued for

Grounds 1, 3, 4, 5, 6, 8, 9, 13, 14, 15, 18, 19, 20, 21, 31, 33, and 37. As discussed above, the

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Court does not believe that jurists of reason could debate this Court’s resolution of these
grounds. Nevertheless, in an abundance of caution, this Court will defer to the Magistrate
Judge’s recommendation that a certificate of appealability for these Grounds be issued. The
Court is cognizant that Haight would not have a chance to respond to this Court’s denial of these
certificates of appealability. Furthermore, the Court recognizes that this is a capital case in
which “doubts as to whether a [certificate of appealability] should issue must be resolved in
favor of the petitioner.” Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000) (quoting Lamb v.
Johnson, 179 F.3d 352, 356 (5th Cir. 1999)). Accordingly, certificates of appealability will be
GRANTED for Grounds 1, 3, 4, 5, 6, 8, 9, 13, 14, 15, 18, 19, 20, 21, 31, 33, and 37. Certificates
of appealability will also be GRANTED for Grounds 2, 16, 17, 27, 29, 30, 43, and 44 for which
this Court and the Magistrate Judge concur that issuance of a certificate of appealability is
warranted.
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 as to Grounds 7, 10, 11, 12, 22, 23, 24, 25, 26, 28, 32, 34, 35,
36, 38, 39, 40, 41, 42, and 45.

Greg N. Stivers, Judge
United States District Court
August 18, 2017

cc:

counsel of record

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