Halvorsen v. White, Case No. 15-5147

LEIF HALVORSEN, Petitioner-Appellant, v. RANDY WHITE, WARDEN, Respondent-Appellee.

Case No. 15-5147

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

August 20, 2018

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 18a0426n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY

BEFORE: ROGERS, COOK, and McKEAGUE, Circuit Judges.

COOK, Circuit Judge. In a petition for a writ of habeas corpus, state prisoner Leif Halvorsen claims that trial court error, ineffective assistance of counsel, and prosecutorial and juror misconduct violated his constitutional rights. Determining that the Kentucky Supreme Court did not unreasonably reject these claims, we deny his petition and AFFIRM the district court's judgment.

I. BACKGROUND

The Kentucky Supreme Court adduced the following facts. In January 1983, Leif Halvorsen and Mitchell Willoughby shot Joe Norman, Joey Durrum, and Jacqueline Greene in Greene's and Norman's house. Halvorsen v. Commonwealth, 730 S.W.2d 921, 923 (Ky. 1986). Halvorsen and Willoughby had come to smoke marijuana with Norman, but after Willoughby and Norman began fighting over a bad check, Willoughby grabbed his gun and started shooting. Id. At trial, Willoughby "took all of the blame" for the murders, and testified that he remembered shooting Norman two or three times, but not the other victims. Id.

Susan Hutchens's testimony filled in the gaps. Id. Halvorsen and Willoughby had asked her to pick up ammunition for their pistols earlier that day. Id. Later, she decided to visit Greene, and upon arrival, saw Willoughby, Halvorsen, and Norman talking in the driveway. Hutchens and Greene went inside to speak to Durrum. Id. Afterwards, Willoughby, Halvorsen, and Norman came inside and, "all of a sudden," the shooting began. Id.

Hutchens put her hands over her eyes and heard numerous shots. Id. When the shooting stopped, she opened her eyes and saw both Halvorsen and Willoughby wielding pistols. Id. Norman and Durrum lay dead on the floor, and Hutchens watched Willoughby shoot Greene twice more, killing her. Both men directed her to pick up the bullet casings while they dragged the bodies out of the house and into their van. Id. Police later found the bodies dumped by a bridge, bound with rope. Id. at 922.

In July 1983, a jury found Halvorson and Willoughby guilty of murdering Norman, Durrum, and Greene. Following the jury's recommendation, the trial court sentenced Halvorsen to death for the Greene and Durrum murders, and life imprisonment for the Norman murder. The Kentucky Supreme Court affirmed Halvorsen's convictions and sentences, Halvorsen, 730 S.W.2d at 928, and the Supreme Court denied certiorari, Halvorsen v. Kentucky, 484 U.S. 970 (1987).

In February 1988, Halvorsen filed a petition for post-conviction relief. After a decade of delay, owing in part to a change of counsel and Halvorsen's filing an amended petition, the trial court conducted an evidentiary hearing that resulted in its denying all relief. Halvorsen's later state court appeals were similarly unsuccessful. Willoughby v. Commonwealth, Nos. 2006-SC-000071-MR, 2006-SC-000100-MR, 2007 WL 2404461, at *3 (Ky. Aug. 23, 2007); Halvorsen v. Commonwealth, 258 S.W.3d 1, 12 (Ky. 2007).

In August 2009, Halvorsen filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254, initially advancing thirty grounds for relief. About three years later, he unsuccessfully moved to add an additional eleven claims. The district court denied the motion without holding an evidentiary hearing, denied relief on all the habeas claims, and issued a partial certificate of appealability. We later expanded the certification, ultimately including ten claims.¹

II. STANDARD OF REVIEW

"In a habeas proceeding, we review the district court's legal conclusions de novo and its factual findings for clear error." Henderson v. Palmer, 730 F.3d 554, 559 (6th Cir. 2013).

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), courts may grant a habeas writ only if the state court's adjudication of a claim either "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 "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." Adams v. Bradshaw, 826 F.3d 306, 310 (6th Cir. 2016) (citing Nali v. Phillips, 681 F.3d 837, 840 (6th Cir. 2012)); 28 U.S.C § 2254(d)(1)-(2). We may grant the writ under the "contrary to" clause only "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 decides a case differently than the Supreme Court on a set of materially indistinguishable facts." Van Tran v. Colson, 764 F.3d 594, 604 (6th Cir. 2014) (citing Brown v. Payton, 544 U.S. 133, 141 (2005)). Alternatively, we maygrant the writ under the "unreasonable application" clause if, despite identifying the correct governing legal principle from the Supreme Court's jurisprudence, the state court "unreasonably applies that principle to the facts of the petitioner's case." Henley v. Bell, 487 F.3d 379, 384 (6th Cir. 2007) (citing Williams v. Taylor, 529 U.S. 362, 413 (2000)).

III. ANALYSIS

A. Complicity Charges

At the end of the guilt phase of Halvorsen's trial, the state trial court instructed the jury that Halvorsen could be convicted either as a principal or as an accomplice to each of the three murders, even though the grand jury indicted Halvorsen only as a principal. Halvorsen objects to the court's addition of accomplice liability, arguing that it constructively amended the indictment and denied him due process by preventing trial counsel from developing a defense to all the charges against him. He proposes two grounds for relief: first, that the trial court erred by instructing the jury on accomplice liability, and second, that trial counsel was constitutionally ineffective for not anticipating or defending against the accomplice liability charge. He raised neither in state court.

1. Trial court error

Generally, before a court rules on the merits of a § 2254 petition, a "petitioner must have exhausted his available state remedies," and his "claims must not be procedurally defaulted." Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015) (citations omitted). A claim is procedurally defaulted when "a petitioner fails to present a claim in state court, but that remedy is no longer available to him." Id. The petitioner may avoid procedural default only if "there was cause for the default and prejudice resulting from the default," or if he can prove "that a miscarriage ofjustice will result from enforcing the procedural default in the petitioner's case." Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir. 2006).

Halvorsen first raised the issue of the trial court's complicity instruction in the district court. Because he never gave the state courts the opportunity to review or correct any error, the claim is procedurally defaulted. Conceding the default, Halvorsen maintains he can show cause to excuse it: the ineffective assistance of his appellate counsel who failed to allege this claim on direct appeal.

The excuse itself was not presented during Halvorsen's state court collateral review, but for good reason: until 2010—years after Halvorsen's claims finished percolating through the state court system—Kentucky did not recognize general ineffective assistance of appellate counsel claims. See Hollon v. Commonwealth, 334 S.W.3d 431, 436 (Ky. 2010). Because we have previously permitted district courts to review the merits of these claims to ensure that a recognized federal right is not rendered non-cognizable, see Boykin v. Webb, 541 F.3d 638, 647-48 (6th Cir. 2008), we accept Halvorsen's invitation to address it here, examining whether his appellate counsel was constitutionally ineffective.

A successful ineffective assistance of counsel claim requires first, that a defense attorney "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and second, that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). Strickland likewise governs claims of ineffective assistance of appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000).

Thus, Halvorsen must demonstrate that appellate counsel's choice to leave unchallenged the state court's complicity instructions "fell below an objective standard of reasonableness" and, but for the error, there is a reasonable probability that "the result of the proceeding would havebeen different." Strickland, 466 U.S. at 688, 694. If he fails to prove either prong, his ineffective assistance of appellate counsel claim also fails. Id. at 697.

We can resolve this argument by deciding that Halvorsen suffered no prejudice. See id.; see also Hall v. Vasbinder, 563 F.3d 222, 237 (6th Cir. 2009) (applying Strickland's prejudice prong to a procedural default analysis). Halvorsen was indicted as a principal offender in the Norman, Durrum, and Greene murders under Ky. Rev. Stat. Ann. § 507.020. The indictment alleged that while committing first-degree robbery, Halvorsen intentionally shot each of the three victims with a pistol. At the trial's conclusion, the court instructed the jury to consider both principal and accomplice liability. The jury found Halvorsen guilty of Norman's murder under an accomplice instruction, and of the Durrum and Greene murders under a combination instruction.

An indictment is constructively amended when jury instructions or the presentation of evidence "so modif[ies] essential elements of the offense charged such that there is a substantial likelihood that the defendant may have been convicted of an offense other than the one charged in the indictment." United States v. Mize, 814 F.3d 401, 409 (6th...