Kleckner v. Mills

Filing 23

MEMORANDUM OPINION and ORDER. Signed by District Judge Sharion Aycock on 9/18/18. (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
JEFFREY KLECKNER

PETITIONER

V.

CIVIL ACTION NO.: 1:17CV208-SA-RP

ANDREW MILLS

RESPONDENT
MEMORANDUM OPINION AND ORDER

Petitioner Jeffrey Kleckner, a Mississippi inmate proceeding pro se, has filed a federal
habeas petition pursuant to 28 U.S.C. § 2254 challenging the convictions and sentences that he
received in the Circuit Court of Union County, Mississippi, for three counts of sexual battery and
one count of touching a child for lustful purposes. Having considered the submissions of the
parties, the State-court record, and the law applicable to Kleckner’s claims, the Court finds that
the petition should be denied.
I.
Background Facts and Procedural History
In the summer of 2006, AB1 confided to her cousin, Whitney, that Jeffrey Kleckner, AB’s
cousin and neighbor, had sexually assaulted her. AB continued to confide in Whitney as she
endured additional assaults committed by Kleckner. Whitney eventually disclosed the
information to her mother, AB’s aunt. AB’s aunt contacted AB’s parents on Sunday, September
7, 2008, and as a result of that telephone call, AB disclosed to her parents that Kleckner had
engaged in inappropriate sexual conduct with her. AB’s parents contacted the Union County
Sheriff’s Department, which began an investigation.

1

The appellate court identified the victim only as “AB” in its written opinion in order to protect the victim’s
identity. See Kleckner v. State, 109 So. 3d 1072, 1076 n.1 (Miss. Ct. App. 2012). This Court retains the same
identifier for purposes of this opinion.

On Tuesday, September 9, 2008, Angie Floyd, a forensic-interview specialist with the
Children’s Advocacy Center in Tupelo, interviewed AB. After the interview, Roger Garner, an
investigator with the Union County Sheriff’s Department who was also present during the
forensic interview, obtained affidavits and warrants for Kleckner’s arrest. Kleckner was arrested
at his girlfriend's home in Blue Mountain, Mississippi, on September 10, 2008, and was
transported to the Union County Sheriff’s Department, where he waived his rights and gave the
following statement:
During the summer of 2006 after I got laid off from the furniture factory, I had too
much time on my hands. [AB] had come up to my shop on County Road 121 and
talked about stuff—the cars, school, boys, and her dad's dogs. The first time I
touched her we were in the house playing cards. She is an aggressive and curious
girl. I was alone and thinking about stuff and I started to talk to her. I touched her
breasts and nipples. I then touched her vagina and I put my finger inside her and
rubbed it around. I can't remember if I moved my hand or if she reached for my
penis, but she touched my erect penis and I was aroused. I don't know if I made her
climax or not. I didn't, I don't think, but the first time she reached out and touched
my penis. I remember at one time in the car that I touched her vagina area inside
her thigh, but nothing else happened that time. I don't think there were any other
times. I told her that she should be careful of boys that might take advantage of her
and do more to her. I did not want her to hate me. After this stuff happened, I just
stay [sic] away from the family. About a month or so ago, I called to ask about the
zoo, but she did not answer.
Doc. #21-4 at 91-92.
On September 10, 2008, Kleckner was arrested and booked into the Union County Jail,
where he remained until he was released on September 19, 2008. He was indicted on October
21, 2008, for three counts of sexual battery and one count of touching a child for lustful
purposes.2 Joe T. Gay entered an appearance as defense counsel on April 27, 2009.
Trial was set for September 14, 2009 by order entered June 10, 2009. On September 11,
2009, Kleckner was admitted to the hospital with chest pains, uncontrolled diabetes, and acute
kidney injury. He underwent a heart procedure on Monday, September 14, 2009, and remained
2

The indictment was amended September 16, 2009, to substitute “finger” with “tongue” in Count IV. See Doc. #2-2
at 61-63.

2

hospitalized until the following day. On Monday, September 14, 2009, defense counsel made an
ore tenus and off-the-record motion for a continuance because of Kleckner’s hospitalization that
was denied by the trial court. Kleckner’s jury trial began on Wednesday, September 16, 2009,
with Kleckner present. He testified in his own defense at trial.
On September 18, 2009, Kleckner was found guilty on all counts. He was ordered to
serve three concurrent terms of life imprisonment for the sexual battery convictions and a
consecutive fifteen-year sentence for the conviction of touching a child for lustful purposes.
Doc. #21-1 at 90. The circuit court ordered that the sentences would not be reduced or
suspended, that Kleckner would not be eligible for any type of sentence reduction or parole, and
that he would be required to comply with the State laws regarding sex offender obligations,
including registration per to Miss. Code Ann. § 43-33-25. Id.
Kleckner appealed, and the Mississippi Court of Appeals affirmed the convictions and
sentences on May 22, 2012. Kleckner v. State, 109 So. 3d 1072 (Miss. Ct. App. 2012), reh’g
denied, Nov. 13, 2012, cert. denied, March 28, 2013 (Cause No. 2009-KA-01681-COA).
Thereafter, Kleckner, proceeding pro se, filed a post-conviction relief application in the
Mississippi Supreme Court. By Order dated September 17, 2014, the Mississippi Supreme Court
granted Kleckner’s application as to one issue only: “that trial counsel was ineffective for failing
to object to Exhibits S-10 and S-11 and for offering Exhibits D-5, D-6, D-7, and D-8.”3 Doc.
#20-2. Leave to file post-conviction relief was denied as to all other issues. Id. Thereafter the
Circuit Court of Union County, Mississippi, denied post-conviction relief as to the identified
issue by Order entered November 18, 2015. Doc. #20-3.

3

Exhibit S-10 was four arrest warrants. Doc. #21-4 at 118. Exhibit S-11 was a warrant and the affidavit of Roger
Garner. Id. at 120. Exhibit D-5 was the Union County Sheriff Dept. detailed offense form. Id. at 100. Exhibit D-6
was The Family Resource Center report. Id. Exhibit D-7 was the typed report of Officer Roger Garner. Id. Exhibit
D-8 was four copies of the affidavit of Roger Garner. Id. at 102.

3

Kleckner appealed, and on March 21, 2017, the Mississippi Court of Appeals affirmed
the Circuit Court’s denial of Kleckner’s post-conviction relief motion as to the one postconviction issue. Doc. #20-4. His motion for rehearing was denied by the Mississippi Court of
Appeals, and his petition for writ of certiorari was denied by the Mississippi Supreme Court. See
Kleckner v. State, 230 So. 3d 1042 (Miss. Ct. App. 2017), reh’g denied, July 18, 2017, cert.
denied, Sept. 28, 2017 (Cause No. 2016-CP-00499-COA).
On November 20, 2017, Kleckner, proceeding pro se, filed the instant petition for a writ
of habeas corpus, raising two grounds for relief:
Ground One: Ineffective Assistance of Counsel.
Ground Two: Improper Interrogation.
On June 14, 2018, Respondent filed an answer to the petition, conceding that the federal
habeas issues raised by Kleckner were presented to the Mississippi Supreme Court for review.4
Doc. #20 at 11. On July 3, 2018, Kleckner filed a reply to Respondent’s answer. Doc. #22.
This matter is ripe for review.
II.
Legal Standard
The Court’s review of the instant petition is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), which prevents the grant of federal habeas relief on any
claim adjudicated on the merits in state court unless that adjudication (1) resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly established United
States Supreme Court precedent; or (2) resulted in a decision based on an unreasonable
determination of facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(1) & (2);
Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

4

Despite this concession, Respondents also argue that certain of Kleckner’s interrogation-related claims, such as
challenges to its length and lack of a recording, were not properly exhausted. See Doc. #20 at 29.

4

Federal habeas relief may be granted under the “contrary to” clause where the State court
(1) arrives at a conclusion opposite that reached by the Supreme Court on a question of law; or
(2) decides a case differently than the Supreme Court on a set of materially indistinguishable
facts. See Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the “unreasonable
application” clause, a federal court may grant relief where the State court applies the correct
legal principle to the facts in an unreasonable manner. See id. at 407-08; Brown v. Payton, 544
U.S. 133, 141 (2005). Whether a decision is “unreasonable” is an objective inquiry; it does not
turn on whether the decision is merely incorrect. See Schriro, 550 U.S. at 473 (“The question
under the AEDPA is not whether a federal court believes the state court’s determination was
incorrect but whether that determination was unreasonable ̶ a substantially higher threshold.”);
Williams, 529 U.S. at 410-11; Morrow v. Dretke, 367 F.3d 309, 313 (5th Cir. 2004) (finding
habeas relief merited where state decision was both incorrect and objectively unreasonable).
When evaluating the evidence presented in state court, a federal habeas court presumes the
correctness of the state court’s factual findings unless the petitioner rebuts the presumption by
clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
III.
Claims
Ground One
A. Ineffective Assistance of Counsel Standards
In Ground One, Kleckner claims that his trial attorney rendered ineffective assistance of
counsel under the standards set forth in United States v. Strickland, 466 U.S. 685 (1984) and
United States v. Cronic, 466 U.S. 648 (1984), and that the Mississippi Supreme Court
disregarded applicable precedent in deciding his claims.
Claims of ineffective assistance of counsel are generally governed by the standard set
forth in Strickland v. Washington, 466 U.S. 668 (1984), which requires a habeas petitioner to
5

satisfy a two-prong test to warrant federal habeas corpus relief: (1) demonstrate constitutionally
deficient performance and (2) demonstrate actual prejudice as a result of such ineffective
assistance. Strickland, 466 U.S. 668 (1984). Deficiency is established when petitioner can
demonstrate that counsel’s performance falls below an objective standard of reasonableness as
measured by professional norms, such that counsel was not functioning as the “counsel”
guaranteed by the Sixth Amendment. Id. at 687-88. This Court’s scrutiny is to be highly
deferential of counsel’s performance, with an effort to “eliminate the distorting effects of
hindsight.” Motley v. Collins, 18 F.3d 1123, 1126 (5th Cir. 1994). In fact, counsel is to be
afforded a presumption that his actions were the product of “sound trial strategy” and undertaken
with the exercise of reasonable professional judgment. Strickland, 466 U.S. at 689.
Under Strickland, prejudice is established when the petitioner can demonstrate to a
reasonable probability that the result of the proceedings would have been different but for the
challenged conduct, thereby undermining confidence in the reliability of the outcome.
Strickland, 466 U.S. at 687, 694. However, an error, even if professionally unreasonable, does
not warrant setting aside the judgment if it had no effect on the judgment. Summit v. Blackburn,
795 F.2d 1237, 1242 (5th Cir. 1986) (citation omitted).
In Cronic, however, the United States Supreme Court “identified three situations
implicating the right to counsel that involved circumstances ‘so likely to prejudice the accused
that the cost of litigating their effect in a particular case is unjustified.’” Bell v. Cone, 535 U.S.
685, 695 (2002) (citations omitted). These situations include (1) “the complete denial of
counsel,” (2) “if counsel entirely fails to subject the prosecution’s case to meaningful adversarial
testing,” and (3) “where counsel is called upon to render assistance under circumstances where
competent counsel very likely could not[.]” Id. (citations and internal citations omitted).
On direct appeal, the Mississippi Court of Appeals analyzed Kleckner’s claims under the
Strickland standard, finding “no obvious deficiencies that rose to the level of ineffective
6

assistance of counsel” and further finding “no merit to Kleckner’s claim that he was denied
counsel at a critical state in the proceedings.” Kleckner, 109 So. 3d at 1094. It rejected
Kleckner’s argument that Cronic rather than Strickland was the proper standard, as Klekcner
argued “specific failures of his counsel, not failure as a whole.” Id. at 1095.
B. Preparation for Trial
Kleckner argues that he was denied his Sixth Amendment right to counsel as (1) due to
his hospitalization three days prior to the start of trial, he was unable to meet with counsel for the
critical pre-trial preparation phase; (2) that trial counsel could not have adequately prepared him;
(3) that trial counsel did not have an opportunity to investigate his medical condition; (4) that
trial counsel did not have an opportunity to review the case or his statement in detail with him;
and (5) that trial counsel did not have an opportunity to review the DVD of the forensic
interview of the victim with him. Kleckner also argues that his trial counsel failed to object to,
or move to suppress, the officer-written confession, failed to challenge the expert forensic
interviewer, failed to object to the police officer’s testimony about the petitioner’s medical
condition during his interrogation, failed to recognize specific voir dire or challenge the wife of
one of the arresting agency’s officers as a jury member, and failed to object to the prosecutor’s
admission of testimonial documents.
1. Additional facts relevant to counsel’s preparation
Joe Gay, an attorney who had been practicing over thirty-five years and who had been
involved in 100 criminal cases, was appointed to represent Kleckner. See Doc. #21-7 at 25-26.
Gay entered an appearance in this case nearly five months prior to the beginning of trial. See
Doc. #21-2 at 23. Within days of his appointment, he filed motions for discovery and to inspect
physical evidence. Id. at 25-41. He received a copy of the victim’s forensic interview on DVD a
month or two prior to trial. Doc. #21-7 at 47. Kleckner viewed a copy of the DVD, though he
apparently never viewed the DVD with Gay present. See, e.g., id. at 59, 74-75. Gay stated,
7

however, that he viewed the DVD several times and made a tactical decision not to introduce it,
in part to keep away from the jury AB’s statement that Kleckner “did it to other girls, too.” Id. at
60, 62, 71, 80.
Gay prepared for trial for months, and he met with Kleckner for approximately 2 ½ hours
less than a week before trial. Doc. #21-7 at 27-28. Upon learning of Kleckner’s hospitalization
the day Kleckner’s trial was scheduled to begin, Gay made a motion for a continuance that was
denied by the trial court. Doc. #21-7 at 32-34. On a post-trial motion for supplementation and
enlargement of the record hearing on June 21, 2010, following a remand from the Mississippi
Court of Appeals, Kleckner’s counsel presented the affidavits of three criminal defense attorneys
stating that Gay could not have rendered competent assistance given the circumstances. See,
e.g., Doc. #21-7 at 25-26, 84, 93. One was from trial counsel, and another was deemed
inadmissible at the remand hearing because the affiant was not available to testify. Id. at 25-95.
The affidavits from the two attorneys uninvolved in the trial was based on Gay’s own affidavit.
Id.
At trial, Kleckner’s defense was that his officer-written confession was not valid, as he
could not see the confession or understand its contents or his rights because of his uncontrolled
blood sugar. Doc. #21-4 at 137-139. He testified that he informed the officers numerous times
during the interrogation that he did not feel well, and trial counsel extensively questioned
Kleckner during direct examination about his medical condition at the time of his interrogation
and written statement. Doc. #21-4 at 137-146; Doc. #21-5 at 3, 66. Gay also presented the
testimony of Kleckner’s girlfriend, Linda Carson, that Kleckner was impotent. Doc. #21-5 at 8182.
2. Analysis
Based on the record before it, the Court finds that Kleckner was timely appointed counsel
who prepared for trial months in advance, who cross-examined witnesses and argued various
8

motions, and who mounted a defense based on Kleckner’s medical conditions. This is not a case
warranting Cronic’s presumptive prejudice based on the denial of counsel or a failure of
adversarial testing. See Bell v. Cone, 535 U.S. 685, 697 (2002) (“[R]espondent’s argument is not
that his counsel failed to oppose the prosecution throughout the sentencing proceeding as a
whole, but that his counsel failed to do so at specific points. . . . For purposes of distinguishing
between the rule of Strickland and that of Cronic, this difference is not of degree but of kind.”);
United States v. Griffin, 324 F.3d 330, 364, (5th Cir. 2003) (“When the defendant complains of
errors, omissions, or strategic blunders, prejudice is not presumed; bad lawyering, regardless of
how bad, does not support the per se presumption of prejudice.”).
Additionally, the circumstances present in Kleckner’s case are not such that it was
unreasonable to conclude that he had failed to demonstrate that counsel was called upon to
render assistance in circumstances where competent lawyer could not. In fact, in Cronic, the
Court found that prejudice should not be presumed where a criminal defendant was appointed a
young, inexperienced attorney and provided only twenty-five days to prepare for a complex trial,
and noted that while “the gravity of the charge, the complexity of the case, and the accessibility
of witnesses. . . are all matters that may affect what a reasonably competent attorney could be
expected to have done under the circumstances. . . none identifies circumstances that in
themselves make it unlikely that the respondent received the effective assistance of counsel.”
Cronic, 466 U.S. at 665. In sum, Kleckner has failed to demonstrate that the decision declining a
Cronic analysis is contrary to established Supreme Court precedent, and Strickland is the
governing standard.
Therefore, with the Strickland standard in mind, the Court notes that on habeas review,
the issue for the reviewing court is not whether the Strickland standard is met, but rather,
whether the state-court’s decision that Strickland was not met warrants relief under AEDPA
standards. See Harrington v. Richter, 562 U.S. 86, 105 (2011) (“When 2254(d) applies, the
9

question is not whether counsel’s actions were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.”). Accordingly,
when a Strickland claim has been rejected on its merits by a state court, a petitioner “must
demonstrate that it was necessarily unreasonable for the [state] Supreme Court” to rule as it did
in order to obtain federal habeas relief. Cullen v. Pinholster, 563 U.S. 170, 190 (2011).
The Court finds that counsel’s actions did not render Kleckner’s trial unfair or unreliable.
As noted above, trial counsel prepared for months, filed various pre-trial motions, moved for a
continuance, cross-examined each of the State’s witnesses, and presented a defense based on
Kleckner’s medical conditions and his alleged impotence. He testified that he made a strategic
decision not to introduce the DVD of the forensic interview of the victim, and Kleckner has not
overcome the presumption that counsel’s actions were a matter of trial strategy. Additionally,
Kleckner has not demonstrated prejudice by counsel’s actions, as the evidence against Kleckner
was overwhelming. Accordingly, the Court finds that Kleckner has failed to demonstrate that the
rejection of these claims warrants federal habeas relief under the AEDPA.
C. Officer-Written Statement
Kleckner alleges his trial counsel rendered ineffective assistance in failing to move to
suppress the officer-written confession introduced at his trial, as he was arrested immediately
after a large breakfast and had not taken his diabetes medications or checked his blood sugar.
Doc. #21-4 at 138. As a result, he claims, he was unable to properly see the document written by
the officer or properly understand its contends, and officers ignored his requests to cease the
interrogation. Id. at 137-39.
In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court held that a
statement made by a person subject to a custodial interrogation is inadmissible unless that person
was advised of his right to have an attorney present, of his right to remain silent, and that
anything he says may be used against him. Miranda, 384 U.S. at 444-45. These rights may be
10

waived, provided that the waiver is voluntary, knowing, and intelligent. Id; see also Moran v.
Burbine, 475 U.S. 412, 421 (1986). In reaching a voluntariness determination, a court must ask
whether the “totality of the circumstances” surrounding the interrogation demonstrates that the
statement was uncoerced, and that it was the result of the suspect’s own rational choice; that is, it
was made with both “a full awareness of the nature of the right being abandoned and the
consequence of the decision to abandon it.” Moran, 475 U.S. at 421; United States v. Reynolds,
367 F.3d 294, 297-98 (5th Cir. 2004). While mental state may be a factor in a voluntariness
determination, it is not determinative, as coercive police conduct is required before a court may
conclude that a confession was involuntarily given. See Colorado v. Connelly, 479 U.S. 157,
167 (1986).
Gay testified that he made a strategic decision not to file a motion in limine to suppress
his client’s statement, and it was read into the record by arresting officer Roger Garner. See Doc.
#21-7 at 64. Garner testified at trial that he twice gave Kleckner his Miranda warnings, that
Kleckner signed a waiver of those rights, and that he provided a voluntary statement, which
Garner transcribed. Doc. #21-4 at 82-85. Garner stated that Kleckner appeared rational, that he
understood his rights, that he was not coerced into giving a statement, that he never complained
about physical illness, that he never appeared to need medical attention, and that he never even
referenced diabetes. Id. at 85, 92, 110, 120-21. Garner testified that after or so of interrogation,
he began to ask pointed questions about Kleckner’s admission that he had sexually assaulted AB,
at which time Kleckner stated he did not want to answer any more questions. Id. at 89-90, 92.
Garner stated he asked a few additional questions that Kleckner did not respond to, at which
point he stopped the interview. Id. at 90-91, 108.
Chris Aldridge, the witnessing officer, corroborated and confirmed Garner’s statement
regarding the circumstances surrounding Kleckner’s arrest, his voluntary statement, his physical
condition, and observations concerning Kleckner’s state of mind. Doc. #21-5 at 105-115. Trial
11

counsel cross-examined each of the State’s law enforcement witnesses. Doc. #21-4 at 95-112;
Doc. #21-5 at 115-123.
Kleckner testified in his own defense, stating he complained to officers six to eight times
that he did not feel well, that he needed to check his sugar, and that he was confused at the time
of the interrogation. Doc. #21-4 at 137-39, 143; Doc. #21-5 at 3, 21-25, 31, 49. He testified that
due to his high blood sugar at the time of his interrogation, he was not in his right state of mind
and does not remember making the statements that are written in his confession. See, generally,
id. Notwithstanding, Kleckner initiated the statement 9 times and signed both pages of the
statement, which Kleckner confirmed in his testimony. Doc. #21-10 at 10-11; Doc. #21-5 at 6263.
Prior to closing arguments, outside of the presence of the jury, the trial court stated as
follows:
I want to opine on the record about — we had the testimony of the alleged
confession of the defendant, which there was never a separate suppression hearing
on that; and, of course, I want to reflect on that and let it be known that the proof
as it came in, in essence, was tantamount to a suppression hearing in the presence
of the jury rather than outside the presence of the jury. The Court’s opinion is that
had there been a separate suppression hearing, of course, the proof would have been
the same and the Court would have denied a motion to suppress the statements of
the defendant.
Doc. #5 at 132.
A determination of counsel’s alleged ineffectiveness for failure to file a suppression
motion depends on whether the motion would have been granted had it been made. United
States v. Oakley, 827 F.2d 1023, 1025 (5th Cir. 1987). There is sufficient evidence in the record
that Kleckner’s waiver of rights was voluntarily given, and the trial court, having heard all of the
evidence, stated that a motion to suppress would have been denied had it been made. Therefore,
any objection to the evidence would have been futile. See, e.g., Koch v. Puckett, 907 F.2d 524,
527 (5th Cir. 1990) (holding counsel is not required to make futile motions). Accordingly,
12

Kleckner cannot demonstrate that his attorney was ineffective in failing to file a suppression
motion, as there is no reasonable probability that such a motion would have been successful.
See, e.g., Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (holding that when ineffectiveness
claim is grounded on counsel's failure to litigate a suppression motion, the defendant must prove
that the underlying constitutional claim is meritorious “and that there is a reasonable probability
that the verdict would have been different absent the excludable evidence”). The Court finds
that Kleckner has failed to demonstrate that the rejection of this claim warrants federal habeas
relief under the AEDPA.
D. Forensic Interviewer
Kleckner alleges that his counsel rendered ineffective assistance in failing to challenge
the forensic interviewer, Angie Floyd, who testified as an expert witness in the field of child
forensic interviewing. See Doc. #21-4 at 36-59.
Prior to trial, defense counsel filed a motion to determine the admissibility “of any
alleged expert testimony.” See Doc. #21-1 at 44-50. At trial, defense counsel stated that he and
the prosecutor had reached a stipulation that the forensic interviewer’s testimony would not
involve the ultimate issue of the child’s believability. Doc. #21-3 at 118-119. Defense counsel
stated that he would not object to the interviewer’s qualifications as an expert, as she had been
tendered to the court as an expert in prior cases. Id. at 120.
At trial, Angie Floyd was tendered as an expert witness in the field of child forensic
interviewing with no objections from defense counsel. Doc. #21-4 at 36-59. Defense counsel
declined to voir dire her credentials, stating that that “[s]he has testified before in this court and
has already been certified in the past, your Honor.” Doc. #21-4 at 38. Floyd was accepted as an
expert witness in the field of forensic interviewing and testified as to her findings. In particular,
Floyd testified that the victim “disclosed abuse and that she did appear to be consistent with that
of a child that had been sexually abused.” Id. at 47-48. Defense counsel cross-examined Floyd
13

as to her qualifications, her interview procedures, and her personal knowledge of the events
disclosed by the victim. Id. at 48-57. The DVD of the forensic interview was not placed into
evidence. Defense counsel later testified that he made a tactical decision not to introduce the
video, as he did not want the jury to be able to repeatedly view it or allow the jury to hear that his
client may have allegedly assaulted other girls. Doc. #21-7 at 62, 71, 80.
Prior to closing arguments at trial, the trial court noted:
[T]he testimony of the forensic interviewer [Angie Floyd] was actually a bit limited
in scope. . . . There was some limited scope of her testimony, but in retrospect, it
may have been that a separate hearing could have been held in connection with her
testimony. It was not done and it would not have changed the result. Once her
testimony did come in, had we had a separate hearing, the Court would have made
its required findings to allow her to testify as an expert as a forensic interviewer
and offer her opinions as she did in some areas. That would have been the ruling
from the Court had we had a separate hearing on her interview. Also, since the
separate testimony by DVD of the victim did not come in, it was limited in scope.
Doc. #21-5 at 132-33.
Kleckner has offered no legitimate basis on which trial counsel should have objected to
Floyd’s testimony. Counsel did, however, cross-examine Floyd about her qualifications and
methods to cast doubt on Floyd’s opinions. Kleckner has not demonstrated any deficiency on the
part of defense counsel. See, e.g., Harrington v. Richter, 562 U.S. 86, 111 (2011) (noting that
“[i]n many instances cross-examination will be sufficient to expose defects in an expert’s
presentation”). Even if defense counsel had offered an objection, however, the trial court
explicitly stated it nevertheless would have allowed Floyd to testify as an expert. Accordingly,
Kleckner cannot demonstrate that he was prejudiced by counsel’s failure to raise an objection to
Floyd’s designation as an expert. See, e.g., Oakley, 827 F.2d at 1025 (holding determination of
ineffectiveness depends on whether objection would have been sustained if made). The Court
finds that Kleckner has failed to demonstrate that the rejection of this claim warrants federal
habeas relief under the AEDPA.

14

E. Officer Testimony Regarding Kleckner’s Medical Condition
Kleckner next argues that trial counsel rendered ineffective assistance in failing to object
to police officer “unqualified” testimony regarding Kleckner’s medical condition during his
interrogation.
Generally, a state court’s evidentiary rulings, even if erroneous under state law, do not
present constitutional issues. Crane v. Kentucky, 476 U.S. 683, 689 (1986). Rather, “[a] state
court’s evidentiary rulings present cognizable habeas claims only if they run afoul of a specific
constitutional right or render the petitioner’s trial fundamentally unfair.” Johnson v. Puckett, 176
F.3d 809, 820 (5th Cir. 1999) (citation omitted). That is, the erroneous admission of prejudicial
testimony does not justify habeas relief unless the evidence played a crucial, critical, and highly
significant role in the jury’s determination. Jackson v. Johnson, 194 F.3d 641, 656 (5th Cir.
1999) (quotation marks and internal quotation marks omitted).
At trial Garner testified that, as a diabetic and a trained officer, he could recognize when
a person is having blood sugar issues. See, e.g., Doc. #21-4 at 120-21. He and Aldridge also
testified that Kleckner at no time mentioned his blood sugar, needing to take a break, or not
feeling well. See, e.g., Doc. #21-4 at 110; Doc. #21-5 at 108-112. This testimony was not
improper medical opinion testimony, but rather, was based on their factual observations, which
directly contradicted Kleckner’s testimony. Moreover, even if Garner’s testimony regarding his
own experiences with diabetes was error, it was not crucial, critical, highly significant role in
jury’s determination and did not render trial fundamentally unfair. This claim fails to warrant
habeas relief under the AEDPA.
F. Voir Dire
Kleckner alleges that defense counsel rendered ineffective assistance in failing to
recognize specific voir dire or challenge as a jury member the wife of one of the arresting
agency’s officers, who failed to disclose her relationship on voir dire. One juror’s husband was

15

an investigator with the New Albany Police Department. Doc. #21-1 at 53; 21-9 at 112.5 This
information was listed on her juror information form, which was sent to both the defense and the
State. See, e.g., Doc. #21-7 at 109.
When a potential juror expresses doubt as to whether he can be impartial, counsel can be
ineffective for failing to strike that juror. See Virgil v. Dretke, 446 F.3d 598, 609 (2006).
However, when a juror can “lay aside his impression or opinion and render a verdict based on the
evidence presented in court,” he is sufficiently qualified for jury service. Irvin v. Dowd, 366
U.S. 717, 723 (1961).
During voir dire, the State asked:
Q: My next question is going to be this: When you get a crowd of people this size
in a county the size of New Albany and ask is anybody related to law enforcement,
I would probably see a number of hands. My question is going to be more specific
than that. Is there anybody here that’s related to a current or former law
enforcement officer by blood or marriage or any other way and that because of that
association with a law enforcement officer you couldn’t be fair and impartial in this
case? Because of that association I’m going to go to the police officer no matter
what he says or anything like that? You couldn’t set that aside and be fair and
impartial?
(NO RESPONSE)
Q: Seeing no hands, I assume as to that issue we all could be fair and impartial.
Doc. #21-3 at 72-73.
In this case, the juror’s relationships with members of the law enforcement community
was disclosed, and she failed to indicate that she would have any difficulty being impartial and
fair. Therefore, the Court finds that the decision rejecting this claim fails to warrant relief under
the AEDPA.
G. Admission of Testimonial Documents
Kleckner alleges that defense counsel rendered ineffective assistance of counsel in failing
to object to the prosecutor’s admission of testimonial documents at trial.

5

Her mother also worked at the Sheriff’s Department. See, e.g., Kleckner, 109 So. 3d at 1088.

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In post-conviction proceedings, Kleckner was granted leave to proceed on a postconviction application in the circuit court on the issue of whether trial counsel was ineffective for
failing to object to Exhibits S-10 and S-11 and for offering Exhibits D-5, D-6, D-7, and D-8.
See, e.g., Doc. #21-17 at 39. As noted previously, Exhibit S-10 contained four arrest warrants,
Exhibit S-11 was a warrant and the affidavit of Roger Garner, Exhibit D-5 was the Union County
Sheriff’s Department offense form, Exhibit D-6 was the forensic interview synopsis, Exhibit D-7
was Roger Garner’s typed report, and Exhibit D-8 was four copies of Roger Garner’s affidavit.
See Doc. #21-17 at 45-46 n.1 & n.2. The circuit court ultimately denied relief on the issue,
finding that Kleckner failed to demonstrate that his trial counsel rendered deficient assistance,
and that he was prejudiced because of counsel’s performance. See id. at 49-50.
At the outset, the Court notes that the presentation of testimonial documents and whether
to lodge an objection in front of the jury are both strategic decisions. See, e.g., Coble v.
Quarterman, 496 F.3d 430, 439-440 (5th Cir. 2007); Thomas v. Thaler, 520 F. App’x 276, 281
(5th Cir. 2013) (“[P]anels from this court have recognized that deciding whether to object before
a jury is a quintessential matter of trial strategy not to be second-guessed.”) (citations omitted).
All of the exhibits at issue were admitted during the testimony of Roger Garner. See
Doc. #21-4 at 96-120. Defense counsel questioned Garner concerning the different dates and
inconsistencies in the typewritten reports. See id. at 97-100. Defense counsel also Garner about
the different dates on the affidavits and arrest warrants, suggesting that law enforcement may not
have had an active warrant at the time Kleckner was brought in by law enforcement. See id. at
100-02. It is apparent from a review of Garner’s testimony that defense counsel could have
reasonably questioned Garner to discredit the investigation performed by pointing out
inconsistencies in the timeline offered by interviewers, investigators, and law enforcement.
Additionally, counsel could have reasonably determined it was in Kleckner’s best interests to
avoid objecting to the introduction of the collective arrest warrants and/or the warrant and
affidavit of Garner, as counsel had already elicited testimony about the documents. However,
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even if counsel’s actions were deemed deficient, Kleckner cannot demonstrate prejudice as a
result of the introduction of these documents, as his confession and the testimony of the victim
were in evidence and would have been sufficient to sustain his convictions. Therefore, the
decision rejecting this claim fails to warrant relief under the AEDPA.

Ground Two
Kleckner maintains that he was interrogated in violation of his Fifth Amendment rights,
and that trial counsel rendered ineffective assistance in addressing the matter during court
proceedings. Specifically, Kleckner argues: (1) that his interrogation was too lengthy; (2) that
his interrogation was not recorded or transcribed; (3) that his confession was involuntary; and (4)
that his continued interrogation after he asked to stop violated his right to silence.
At the outset, the Court notes that Respondents concede that the majority of Kleckner’s
interrogation claims are exhausted but argue that the Court is prohibited from hearing Kleckner’s
complaints that concerning the length of the interrogation or law enforcement’s failure to record
the interrogation, as those issues were not raised on direct appeal or post-conviction review.
“Applicants seeking federal habeas relief under § 2254 are required to exhaust all claims in state
court prior to requesting federal collateral relief.” Fisher v. Texas, 169 F.3d 295, 302 (5th Cir.
1999). To satisfy this requirement, the applicant must present his claims to the state’s highest
court in a procedurally proper manner, thereby providing the court with a fair opportunity to
consider the claims. See Carter v. Estelle, 677 F.2d 427, 442-44 (5th Cir. 1982). In his reply to
Respondent’s answer, Kleckner makes no argument that these issues are exhausted, and it
appears that they are not. The Court need not resolve the issue, however, as it is apparent that
neither unexhausted claim warrants relief. See 28 U.S.C. § 2254(b)(2) (“An application for a
writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.”).

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First, Officer Garner’s interrogation lasted approximately one to two hours, and an
interrogation of that length is not enough to conclude that his confession was coerced. See Doc.
#21-4 at 106, 140. See, e.g., Berghuis v. Thompkins, 560 U.S. 370, 387 (2010) (noting suspect
confined to straight-backed chair during three-hour interrogation could not demonstrate “that an
interrogation of this length is inherently coercive”). Second, the Fifth Circuit has declined to
consider an argument that a confession must be written or recorded to be valid. See United
States v. Contreras, 373 F. App’x 484, 2010 WL 1558960, at *2 (5th Cir. 2010). Accordingly,
neither of these claims warrant federal habeas relief.
Kleckner next maintains that his confession was not voluntary, as he was forced to sign
the confession written by law enforcement, and that his medical condition affected his ability to
give a voluntary statement.
As the Court has already noted, there was no pre-trial determination made regarding the
voluntariness of Kleckner’s confession, though the trial judge did state that he would have
denied any suppression motion that had been filed. See Doc. #21-5 at 132. The United States
Supreme Court has rejected a claim that a defendant has an automatic right to a hearing as to the
voluntariness of a confession, even when the defendant does not object to its admission, and it
has held that “the Constitution does not require a voluntariness hearing absent some
contemporaneous challenge to the use of the confession.” Wainwright v. Sykes, 433 U.S. 72, 86
(1977).
Kleckner testified extensively at trial regarding his diabetes at the time of interrogation,
stating that he told officers multiple times that he did not feel well, that he was confused, and that
he needed to check his blood sugar. See Doc. #21-4 at 137-43; Doc. #21-5 at 3, 23-25, 49, 66.
Officer Garner and Officer Aldridge testified that Kleckner never stated that he did not feel well,
never complained about physical problems, never stated that he wanted to take a break, never
stated he did not understand something, and never made any statements concerning his sugar
level or that he suffered with diabetes. See Doc. #21-4 at 110, 120-21; Doc. #21-5 at 111-12.
19

Garner testified that he advised Kleckner of his Miranda rights when he picked Kleckner
up at his girlfriends’ house, and that he advised Kleckner again when they arrived at the Union
County Sheriff’s Office, which Officer Aldridge confirmed. Doc. #21-4 at 82-83; Doc. #21-5 at
108, 111. Kleckner admitted that Garner read the Miranda waiver to him and that he signed the
waiver, albeit with a caveat that he did not fully understand it because of his blood sugar. Doc.
#21-5 at 21-23.
Kleckner dictated his statement to Garner, and Kleckner initiated at various parts of the
statement and signed at the bottom of each page. See, e.g., Doc. #21-4 at 27-31, 62-63. In his
statement, Kleckner admitted to touching his victim’s breasts and vagina, inserting his finger in
her vagina, and the victim touching his penis. See, e.g., Doc. #21-4 at 91-92. Kleckner
confirmed that Officers Garner and Aldridge were present at the time of his statements. Id. at
141; Doc. #21-5 at 65.
The Court finds that the record supports a determination that Kleckner was informed of
his rights on two separate occasions, that he executed a voluntary waiver of those rights before
giving a statement that he initialed nine times and signed at the bottom of each page. Other than
his self-serving testimony, nothing in the record supports a determination that Kleckner’s
confession was involuntary or coerced. The decision rejecting this claim fails to warrant relief
under the AEDPA.
Finally, the Court considers Kleckner’s claim that his interrogation violated his Fifth
Amendment right to remain silent because Officer Garner ignored Kleckner’s request to stop the
interrogation and instead continued to question him.
As previously noted, Kleckner made incriminating statements to Garner after being given
his Miranda warnings twice. After making incriminating statements, Kleckner refused to answer
specific questions and stated he did not want to say anything more. Doc. #21-4 at 108, 146.
Garner asked a couple of additional questions about Kleckner’s mobile home, and the
interrogation stopped. Id. at 108.
20

In Davis v. United States, 512 U.S. 452, 462 (1994), the United States Supreme Court
held that questioning in a custodial interrogation may continue unless a suspect unequivocally
requests an attorney. Here, there is no suggestion that Kleckner requested to speak to counsel.
However, assuming, arguendo, that Garner violated Kleckner’s right to remain silent by asking
additional questions of Kleckner, Kleckner gave no additional incriminating statements after
stating he did not want to answer any more questions. Therefore, Kleckner’s Fifth Amendment
rights were not violated, and the decision rejecting this claim fails to warrant relief under the
AEDPA.6

IV.
Certificate of Appealability
A petitioner must obtain a certificate of appealability (“COA”) before appealing this
Court’s decision denying federal habeas relief. 28 U.S.C. § 2253(c)(1). A COA will not issue
unless a petitioner makes “a substantial showing of the denial of a constitutional right” of any
claim rejected on its merits, which a petitioner may do by demonstrating that “reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.” 28
U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000). To obtain a COA on a claim
that has been rejected on procedural grounds, a petitioner must demonstrate “that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack, 529 U.S. at 484 (emphasis added). Applying this
standard, the Court concludes that a COA should be denied in this case.

6

The Court otherwise notes that police officers’ testimony at trial regarding a defendant’s invocation of his right to
remain silent is not improper when the suspect was arrested, received Miranda warnings, involved his right to
remain silent after making inculpatory statements to police officers, and then made inconsistent statements while
testifying. Lofton v. Wainwright, 620 F.2d 74 (5th Cir. 1980).

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V.
Conclusion
Jeffrey Kleckner has failed to demonstrate that the adjudication of his claims by the State
court resulted in a decision contrary to, or involving an unreasonable application of, clearly
established Supreme Court precedent, or that the decision was based on an unreasonable
determination of facts in light of the evidence presented. 28 U.S.C. § 2254(d). Therefore, it is
hereby ORDERED that the instant petition for a writ of habeas corpus is DENIED, and a
certificate of appealability is DENIED. A separate final judgment will issue today.
SO ORDERED this 18th day of September, 2018.

/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE

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