Wadlington v. Smith

Filing 23

MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 2/27/2017; re 21 REPORT AND RECOMMENDATIONS by Magistrate Judge Lanny King on 9/26/2016; re 1 Petition for Writ of Habeas Corpus, filed by Devron Dwayne Wadlington; a separate order and judgment shall issue. cc:counsel, petitioner pro se (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:15-CV-00209
DEVRON DWAYNE WADLINGTON

PETITIONER

v.
AARON SMITH, Warden

RESPONDENT
Memorandum Opinion

This matter is before the Court upon Petitioner Devron Dwayne Wadlington’s
pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. [DN 1.]
Magistrate Judge King recommends that Wadlington’s petition be denied.
21.]

[DN

Wadlington has filed objections to portions of the Magistrate Judge’s report.

[DN 22.] The Court must review de novo those portions of a Magistrate Judge’s
recommended disposition to which Wadlington objects.

28 U.S.C. § 636(b)(1)(C).

After careful consideration of Wadlington’s objections and the record, the Court
agrees with the Magistrate Judge that Wadlington’s petition is without merit.
Therefore, for the following reasons, Wadlington’s § 2254 petition for a writ of
habeas corpus [DN 1] is DENIED.

Furthermore, the Court DENIES a certificate of

appealability as to all grounds raised in his petition.
I. Facts and Procedural History
Petitioner Devron Dwayne Wadlington was convicted by a Trigg County,
Kentucky jury of the wanton murder of LaWarren O’Keith Sims outside a nightclub.
The following factual summary is taken from the Kentucky Court of Appeals’ first
opinion in Wadlington’s case:

Wadlington and a codefendant, George Kelly Mayes, were indicted
and jointly tried for the murder of LaWarren O'Keith Sims. Sims was
shot and killed in a crowded altercation outside Henry's Place, a
nightclub in Trigg County. The evidence presented at trial revealed
that no eyewitness positively identified Sims's shooter, and the bullet
that killed Sims was never found. Eyewitnesses testified to seeing
Mayes pull a gun from his waistband when confronted by Anthony
Wilson, a patron of Henry's Place. Other eyewitnesses testified to
seeing Mayes and Wadlington shooting guns into a crowd or into the
air. Another witness testified that she saw Wadlington holding a
9mm gun during the altercation.
James Rodell Acree testified that he drove Mayes, Wadlington, and
others to Henry's Place. Following the altercation, Acree drove Mayes
and Wadlington to Cadiz. He testified that Mayes fired shots from
the car window while leaving the scene. Also while in the car, Acree
overheard Mayes ask Wadlington, “did you hit him?” Acree helped
Mayes clean out his car, in which they found a Budweiser box which
contained a bullet. They threw the box and bullet into a field. Billy
Alexander testified that he found a handgun near his home after
Mayes had stopped by. Alexander threw the gun into a field near his
house.
Acree and Alexander eventually led police to the field which
contained the Budweiser box, a .45 handgun with a bullet in the
chamber, a .45 bullet, and a 9mm handgun that was wrapped in a
black t-shirt and mask under the seat of an abandoned vehicle. Police
also searched the area around Henry's Place and found .45 shell
casings and a 9mm casing nearby. An FBI weapons expert testified
that the .45 shell casings recovered came from the .45 gun found by the
police, but that the 9mm shell casing did not come from the recovered
9mm gun.
Counsel for Wadlington cross-examined both Acree and Alexander
regarding their status as convicted felons, their incomplete statements
to police, their expectations of getting favorable treatment in return for
their cooperation, and Acree's admission to being high on the night of
the shooting. No proof was introduced for Wadlington at the close of
the Commonwealth's case. The trial court instructed the jury to
decide whether Mayes and Wadlington were guilty, either individually
or acting in complicity with the other, of murdering Sims; of wanton
murder; or of a lesser degree of homicide. The jury convicted both of
wanton murder.

2

Wadlington v. Com., No. 2011-CA-001260-MR, 2013 WL 1003490, at *1 (Ky. Ct.
App. Mar. 15, 2013) (Wadlington II).

The Kentucky Supreme Court affirmed

Wadlington’s conviction on direct appeal. See Wadlington v. Com., No. 2006-SC000640-MR, 2008 WL 1003490 (Ky. Oct. 23, 2008) (Wadlington I).

Specifically, the

Commonwealth’s highest court held that the trial court did not err by failing to
sequester the Commonwealth’s witnesses until the second day of testimony, by
admitting the 9mm handgun into evidence, or by declining to give Wadlington’s
desired self-defense jury instruction. See id. at *2-5.
Wadlington then brought an action in the Trigg Circuit Court pursuant to
Kentucky Rule of Criminal Procedure (RCr) 11.42 alleging that his trial counsel was
ineffective. In that proceeding, Wadlington claimed that his attorney failed to
conduct a reasonable investigation of potential witness, call mitigating witnesses,
and object to the admission of the 9mm handgun. Wadlington II, 2013 WL
1003490, at *2.

He also claimed that his attorney’s cumulative errors deprived him

of effective representation.

Id. at 3.

The Trigg Circuit Court denied Wadlington’s

RCr 11.42 motion, the Kentucky Court of Appeals affirmed, and the Kentucky
Supreme Court denied discretionary review.
Wadlington’s final journey in state court began when he filed a Kentucky
Rule of Civil Procedure (CR) 60.02 motion, once again seeking to vacate his
sentence.

There, Wadlington raised several arguments, some old and some new.

He contended for a second time that his trial counsel was ineffective. Wadlington
v. Com., No. 2014-CA-001612, at *4 (Ky. Ct. App. May 22, 2015) (Wadlington III).

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This time, Wadlington also argued that his counsel on direct appeal and during his
RCr 11.42 proceedings were both ineffective. Id. at 4-5.

Finally, he sought to

have the black t-shirt found with the 9mm handgun tested for DNA. Id. at 5. The
Kentucky Court of Appeals rejected all of Wadlington’s arguments, and the
Kentucky Supreme Court again declined to hear his case.
This action followed.1

The Court referred Wadlington’s § 2254 petition to

Magistrate Judge King for findings of fact, conclusions of law, and a
recommendation.

[DN

8.] The

Magistrate

Judge

issued

his

findings,

recommending that Wadlington’s petition be denied as to each of his eight claims.
See [DN 21.]

Wadlington filed objections, [DN 22], and this matter is ripe for

adjudication.
II. Standard of Review
“Under the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA), 28
U.S.C. § 2254(d), federal habeas relief may not be granted unless the state court
decision at issue: (1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law as determined by the
Supreme Court of the United States; or (2) resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented in the

Wadlington actually filed a § 2254 petition prior to this one, while Wadlington III was still pending.
Upon learning that his CR 60.02 proceedings were still ongoing, the Court dismissed Wadlington’s
first § 2254 petition in order to allow him to exhaust his state court remedies. See Wadlington v.
Smith, No. 5:14-CV-00123 (W.D. Ky. 2014). After Wadlington III was decided, Wadlington asked
the Sixth Circuit permission to file a second or successive habeas petition in this Court. The Sixth
Circuit denied Wadlington’s motion as unnecessary, and transferred his case to this Court. See [DN
16.]
1

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State court proceeding.” Coleman v. Bergh, 804 F.3d 816, 819 n. 1 (6th Cir. 2015);
Adams v. Bradshaw, 817 F.3d 284, 288 (6th Cir. 2016).
“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if
the state court arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law, or if the state court reaches a decision different from
that of the Supreme Court on a set of materially indistinguishable facts.”
v. Bobby, 804 F.3d 767, 773 (6th Cir. 2015).

Trimble

“Under the ‘unreasonable application’

clause, a federal habeas court may grant the writ if the state court identifies the
correct governing legal principle from the Supreme Court's decisions but
unreasonably applies that principle to the facts of the petitioner's case.” Id.

“For

factual matters, a district court may not grant a habeas petition unless the state
court's adjudication “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” Id. (quoting 28 U.S.C. § 2254(d)(2)).
“To obtain habeas relief, ‘a state prisoner must show that the state court's
ruling on the claim being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.’”
562 U.S. 86 (2011)).

Id. (quoting Harrington v. Richter,

This standard is “difficult to meet.” White v. Woodall, 134 S.

Ct. 1697, 1702 (2014) (citation omitted).

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III. Discussion
In his objections, Wadlington argues that the Magistrate Judge erred in
concluding that the trial court’s admission of the 9mm handgun does not require the
Court to grant his petition.2

Particularly, he maintains that his trial counsel was

ineffective in failing to object to the weapon’s admission into evidence, and that the
trial court’s decision to admit the gun deprived Wadlington of a fair trial.
22 at 2-3.]

See [DN

But neither claim entitles Wadlington to relief.

First, Wadlington contends that the trial court violated his due process rights
by admitting the 9mm handgun into evidence.

[DN 1-1 at 17-19.]

He first raised

this claim on direct appeal, and the arguments he made before the Kentucky
Supreme Court are substantially the same as his arguments today.

Because a FBI

weapons expert test testified during trial that the 9mm shell casing found at the
scene of Sims’ murder did not match the 9mm pistol recovered near Billy
Alexander’s house, Wadlington believes that the weapon was irrelevant and should
have been excluded.
Wadlington’s trial counsel did not object to the admission of the handgun.
Because the issue was unpreserved on direct appeal, the Kentucky Supreme Court
reviewed the trial court’s decision to allow the pistol into evidence under the
palpable error standard set forth in RCr 10.26.

Wadlington I, 2008 WL 4691945,

Wadlington also states that he “totally disagrees with the Magistrate [Judge’s] report that his
petitions contain[s] both exhausted and unexhausted claims.” [DN 22 at 1.] However, a review of
the Magistrate Judge’s report and recommendation reveals that the Magistrate Judge did not find
that any of Wadlington’s claims are unexhausted in a way that would bar federal review.
2

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at *4.

The court noted that despite the aforementioned ballistics test, the handgun

was still relevant evidence:
Although this gun was not definitively established as firing the bullet
that killed Sims, it was, nonetheless, relevant evidence under KRE
401, which broadly defines relevant evidence as making the existence
of a material fact more or less probable and, thus, presumptively
admissible under KRE 402, which generally states that relevant
evidence is admissible. Billy Alexander testified to having found a
gun near his door after Mayes and Wadlington stopped by his
residence the night of the shooting and to having thrown that gun out
into the woods where the Budweiser box was eventually found. After
investigators found a .45 gun on the lot next to Alexander's house, a
police canine directed the officers to the 9mm gun, which was found
under an old car seat not far from the place where the .45 was found.
Although experts testified that the 9mm shell casing found did not
come from the 9mm gun found in the woods, a jury might still
reasonably infer that the 9mm gun was used in the shooting that
resulted in the untimely death of LaWarren Sims.
Given the possible relevancy of the evidence; the lack of
preservation of this issue; and the possibility that defense counsel
elected not to object to its admission but, instead, to point to its
introduction as showing shoddy police work, we cannot conclude that
the trial court's admission of this evidence amounted to palpable error
under RCr 10.26.
Id.

Additionally, at least one witness, Jeneen Riley, testified that she saw

Wadlington with a 9mm handgun at Henry’s Place.

[DN 18-4 at 147]; Wadlington

I, 2008 WL 4691945, at *3; Wadlington II, 2013 WL 1003490, at *1; Wadlington III,
2015 WL 2445088, at *2.
The admission of the 9mm pistol did not deprive Wadlington of a fair trial.
The trial court’s erroneous admission of evidence will only violate a defendant’s due
process rights when “an evidentiary ruling is ‘so egregious that it results in a denial
of fundamental fairness.’”

Ege v. Yukins, 485 F.3d 364, 375 (6th Cir. 2007)

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(quoting Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003)).

“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.” Brown v. O’Dea, 227 F.3d 642, 645 (6th Cir. 2000).

“To

warrant habeas relief, a questionable evidentiary admission must not only be
erroneous, but it must also be so infirm that it rendered the trial fundamentally
unfair, such that it had influence in determining the jury’s verdict.” Hutton v.
Mitchell, 839 F.3d 486, 501-02 (6th Cir. 2016) (citations omitted).
Here, each reviewing Court has correctly recognized that although the
ballistics test did not prove a match, other circumstantial evidence linked the gun to
Wadlington, and Wadlington to the crime.

Witnesses saw Wadlington with a 9mm

handgun, shooting into the air as he and Mayes drove off in great haste from
Henry’s Place. Shortly after the pair left Billy Alexander’s house that same night,
Alexander found a gun near the doorway of his house, wrapped in cloth. Alexander
testified that he disposed of the weapon in the field adjacent to his property. When
police searched the field, they found the 9mm handgun under the seat of an
abandoned car, wrapped in a black t-shirt and mask.

On these facts, the Court

cannot say with any conviction that the trial court erred by admitting the weapon
as relevant evidence against Wadlington. See Hudson v. Lafler, 421 F. App’x 619,
627-29 (6th Cir. 2011) (petitioner not entitled to habeas relief when trial court
allowed gun into evidence despite only minimal evidence suggesting gun was used
in armed robbery).

And because the admission of the gun was not erroneous, the

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Magistrate Judge did not err in finding that Wadlington is not entitled to habeas
relief on this claim.
Relatedly, Wadlington argues that he was denied the effective assistance of
counsel when his attorney failed to object to the Commonwealth’s admission of the
9mm handgun.

[DN 1-1 at 26-27.]

proceedings in state court.

He first raised this claim in his RCr 11.42

In denying Wadlington relief on this claim, the

Kentucky Court of Appeals wrote:
At trial, a detective who worked the case testified that the 9mm
handgun was not connected to the case, other than the fact that it was
found in the process of investigation. An FBI ballistics expert
testified that the 9mm shell casing found at Henry's Place was not
fired from the 9mm handgun introduced as evidence. Additionally,
counsel argued that not objecting to the admission of the 9mm
handgun was his trial strategy intended to highlight the weakness of
the Commonwealth's case against Wadlington. He highlighted such
in his closing argument, pointing to the Commonwealth's attempt to
connect Wadlington to the incident via the 9mm handgun, despite no
evidence that the gun was fired at Henry's Place on the night in
question. A counsel's recognition of evidence as having little to no
relevance to the case, but using such to discredit the Commonwealth's
case has been recognized as sound trial strategy. See Taylor v.
Commonwealth, 63 S.W.3d 151, 163 (Ky. 2001), abrogated on other
grounds by Crawford v. Washington, 541 U.S. 36, 64, 124 S.Ct. 1354,
1371, 158 L.Ed.2d 177 (2004). Counsel's decision not to object to the
admission of the 9mm handgun was within the bounds of reasonable
trial strategy, and thus not a basis for granting RCr 11.42 relief.
Additionally, counsel effectively demonstrated that the 9mm handgun
was not connected to the shooting at Henry's Place, and thus any
prejudice which may have resulted from its admission was mitigated to
a degree that it did not deprive Wadlington of a fair trial.
Wadlington II, 2013 WL 1003490, at *3.3

Wadlington raised this same argument in his CR 60.02 proceedings, but the court refused to
consider his claim because it “was previously raised and addressed in his RCr 11.42 motion.”
Wadlington II, 2015 WL 2445088, at *4.
3

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Ineffective assistance claims are evaluated under a “doubly deferential”
standard of review.

Burt v. Titlow, ___ U.S. ___, 143 S. Ct. 10, 13 (2013).

To

establish ineffective assistance, the petitioner must first “demonstrate that his legal
representation ‘fell below an objective standard of reasonableness,’ . . . and that he
suffered prejudice as a result.”

Abby v. Howe, 742 F.3d 221, 226 (6th Cir. 2014)

(citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)).

Next, AEDPA

requires that the court “examine only whether the state court was reasonable in its
determination that counsel’s performance was adequate.”

Id. (citing Burt, 143 S.

Ct. at 18).
For two reasons, Wadlington’s ineffective assistance claim based upon his
counsel’s failure to object to the 9mm handgun must fail. First, as explained
above, the Kentucky Supreme Court held on direct review that the trial court did
not err in admitting the weapon into evidence.

“Because the Kentucky Supreme

Court determined on direct review that the evidence . . . [was] not objectionable,
[the court] defer[s] to the state-court’s finding that [Wadlington] did not suffer from
ineffective assistance of counsel.” Hodge v. Haeberlin, 579 F.3d 627, 648 (6th Cir.
2009).
Moreover, the Sixth Circuit has previously recognized that “any single failure
to object usually cannot be said to have been error unless the evidence sought is so
prejudicial to a client that failure to object essentially defaults the case to the state.”
Lundgren v. Mitchell, 440 F.3d 754, 774 (6th Cir. 2006). In Strickland, the
Supreme Court cautioned that “the defendant must overcome the presumption that,

10

under the circumstances, the challenged action ‘might be considered sound trial
strategy.’”

Strickland, 466 U.S. at 689 (citing Michel v. Louisiana, 350 U.S. 91,

101 (1955)). A reviewing court should find a defense attorney’s failure to object
ineffective only when counsel “consistently fail[s] to use objections, despite
numerous and clear reasons for doing so.” Lundgren, 440 F.3d at 774.
Here, during Wadlington’s RCr 11.42 proceedings, his trial counsel explained
that he purposely did not object to the 9mm handgun because he believed it shone a
light upon a weakness in the Commonwealth’s case – namely, that the prosecution
was attempting to connect Wadlington to the crime with a gun that did not match a
shell casing found at the scene. As the Kentucky Court of Appeals observed,
Kentucky law recognizes this as a viable strategy. See Taylor v. Commonwealth,
63 S.W.3d 151, 163 (Ky. 2001), abrogated on other grounds by Crawford v.
Washington, 541 U.S. 36, 64 (2004).

This Court agrees with the state court that

counsel’s decision not to object to the 9mm handgun was part of a deliberate trial
strategy, and did not fall below the “objective standard of reasonableness” expected
of criminal defense attorneys. Strickland, 466 U.S. at 687-88.

In so holding, the

state court did not reach a conclusion that is contrary to clearly established federal
law. See Schoenberger v. Russell, 290 F.3d 831, 836-37 (6th Cir. 2002). The
Magistrate Judge did not err in concluding that Wadlington is not entitled to
habeas relief on this claim.

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IV. Certificate of Appealability
The Court will decline to issue a certificate of appealability in this case.

A

state or federal prisoner who seeks to take an appeal from the dismissal of a habeas
corpus petition or a motion to vacate must satisfy the certificate of appealability
requirements of 28 U.S.C. § 2253(c).

A COA will be issued only if the applicant has

made a substantial showing of the denial of a constitutional right.
2253(c)(2).

28 U.S.C. §

Such a substantial showing is made when a prisoner establishes that

jurists of reason would find it debatable whether the petition or motion states a
valid claim of the denial of a constitutional right or, in the cases in which the
petition is resolved based upon a procedural ruling, that jurists could find it
debatable whether the district court was correct in its procedural ruling. See
Porterfield v. Bell, 258 F.3d 484, 485-86 (6th Cir. 2001).

A state prisoner may raise

on appeal only those specific issues for which the district court grants a certificate of
appealability. Powell v. Collins, 332 F.3d 376, 398 (6th Cir. 2003).

Wadlington

has not shown the denial of a constitutional right on any of his claims.

Because

reasonable jurists could not debate any of these points, the Court will deny
Wadlington a certificate of appealability as to all grounds raised in his petition.

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V. Conclusion
The above matter having been referred to Magistrate Judge King, who has
filed his Findings of Fact and Conclusions of Law, objections having been filed
thereto, and the Court having considered the same, IT IS HEREBY ORDERED:
(1) The Court ADOPTS the Findings of Fact and Conclusions of Law as set
forth in the report submitted by the Magistrate Judge [DN 21], and OVERRULES
Petitioner’s Objections [DN 22];
(2) Petitioner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254 [DN 1] is DISMISSED; and
(3) A Certificate of Appealability is DENIED as to each claim asserted in the
petition.
A separate judgment shall issue.

February 27, 2017

CC: Counsel of Record
Devron Dwayne Wadlington, pro se

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