Smith v. Meko

KURT ROBERT SMITH, Petitioner, v. JOSEPH MEKO, Warden, Respondent.

No. 5:15-CV-252-DCR-HAI

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION LEXINGTON

February 26, 2016

RECOMMENDED DISPOSITION

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On August 26, 2015, state prisoner Kurt Robert Smith, through counsel, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. D.E. 1. The Warden responded (D.E. 8), and Smith filed a reply (D.E. 11). For the reasons explained below, the undersigned recommends that Smith's petition be DISMISSED as time-barred. Alternatively, if not time-barred, it should be DENIED on the merits.

I. Factual and Procedural Background

In 2001, Smith was convicted of murder and sentenced to life in prison. See Smith v. Commonwealth, No. 2002-SC-0293-MR, 2003 WL 22415620, at *1 (Ky. Oct. 23, 2003).¹ He expected to become parole-eligible in March 2021. See D.E. 1 at 2. On August 21, 2009, a riot occurred at Northpoint Training Center ("NTC"), where Smith was detained. During the riot, someone threw an object that struck Officer Jesus Cabrera.

On March 22, 2010, a Kentucky grand jury indicted Smith on two charges stemming from the riot. See D.E. 8-3 at 1. The first charge alleged that Smith committed third-degree assault against Officer Cabrera "by striking him with an object[] and causing physical injury" in violation of KRS § 508.025(b). Id. The second charge alleged that Smith committed first-degree riot in violation of KRS § 525.020 by knowingly participating in a riot at NTC and "as a result of said riot substantial property damage occurred to Northpoint Training Center."² Id. Both charges were Class D felonies. Id. In Kentucky, a Class D felony carries a prison term between one and five years. Ky. Rev. Stat. § 532.020(1)(a).

On July 8, 2010, the Commonwealth offered Smith a plea agreement, which he accepted pursuant to North Carolina v. Alford, 400 U.S. 25 (1970) (permitting a defendant to plead guilty while maintaining his factual innocence). D.E. 8-3 at 2-5. The recommended sentence under the agreement was five years of imprisonment on each charge, but the sentences were "to run concurrently with each other and concurrently with the life sentence" he was already serving. Id. at 2. Accordingly, the trial court's judgment specified that Smith would receive five years on each charge, "[t]o run concurrently with each other and concurrently with [the] life sentence." Id. at 7. That judgment was entered August 13, 2010. Id. at 6.

Over two years later, Smith filed a pro se motion to vacate his judgment and sentence under Kentucky Rule of Criminal Procedure 11.42 ("R.Cr. 11.42"). D.E. 8-3 at 10-14. Smith mailed the motion on October 23, 2012, and the Boyle Circuit Court filed it on October 30. Id.Among other claims, Smith alleged that his attorney had "provided grossly ineffective assistance of counsel" in violation of Strickland v. Washington, 466 U.S. 668 (1984). Id. at 10.

Smith's first Strickland claim in his state motion alleged that his lawyer misadvised him regarding the effect of his guilty pleas on his parole eligibility date. According to Smith, his attorney told him that obtaining concurrent sentences through the plea agreement would leave his parole eligibility date (stemming from his murder conviction) unchanged. Id. at 10-12.

The trial court did indeed order that Smith's 2010 sentences run concurrently with each other and concurrent to his previous life sentence. D.E. 8-3 at 7. However, a Kentucky administrative regulation mandates that when a prisoner is convicted of a new crime while incarcerated, parole eligibility on the new conviction does not begin to accrue until the prisoner becomes parole-eligible on the original conviction. The relevant regulation states:

(4) Parole review for crimes committed while in an institution or while on escape. If an inmate commits a crime while confined in an institution or while on an escape and receives a concurrent or consecutive sentence for this crime, eligibility time towards parole consideration on the latter sentence shall not begin to accrue until he becomes eligible for parole on his original sentence. This shall include a life sentence.

(a) Except as provided by paragraph (b) of this subsection, in determining parole eligibility for an inmate who receives a sentence for . . . a crime committed while in the institution . . ., the total parole eligibility shall be set by adding the following, regardless of whether the sentences are ordered to run concurrently or consecutively:

1. The amount of time to be served for parole eligibility on the original sentence;

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3. If the inmate has an additional sentence for a crime committed while in the institution, the amount of time to be served for parole eligibility on the additional sentence for the crime committed while in the institution . . . .

501 Ky. Admin. Regs. 1:030 § 3(4)(a).

Under this regulation, Smith's 2010 convictions added two years to his parole eligibility date, shifting it from March 2021 to March 2023. The parties do not contest the calculation of these dates.³ Smith alleged in his R.Cr. 11.42 motion that his attorney provided ineffective assistance "by failing to recognize that the sole inducement for [Smith's] plea bargain in this case—concurrent sentencing—was unattainable." D.E. 8-3 at 11-12. Smith claims that when he entered his Alford plea he did not know it was impossible for his new convictions to leave his original parole eligibility date intact. Id. at 12. He further claims,

His attorney did not inform Smith of 501 KAR 1:030, did not inform Smith that the two five-year sentences would be run consecutively to one another and to the life sentence for parole eligibility purposes pursuant to that regulation, and did not inform Smith that his parole eligibility would be extended due to the regulation. Smith's attorney did not inform him that he was, in essence, pleading guilty to the maximum sentence he could receive on the two Class D felony charges since crimes committed while in the institution are calculated as consecutive sentences for parole purposes (regardless of the judgment), and since the parole eligibility for those crimes does not begin to accrue until the inmate becomes eligible for parole on his original sentence.

D.E. 11 at 21.

Smith's second relevant claim in his R.Cr. 11.42 motion was that his counsel rendered ineffective assistance on the assault charge by failing to "conduct reasonable investigation that would have uncovered a meritorious defense." D.E. 8-3 at 12. According to Smith, "certain discovery materials provided to a co-defendant in a related NTC riot case included an audio recording of an interview conducted with NTC Officer Jesus Cabrera." Id. Smith claimed this interview "exonerated" him and "implicated a different inmate." According to Smith, OfficerCabrera told the interviewer "I know it was Nolan . . . flung the rock; . . . hit me." Id. Smith averred that, had he known about this recorded interview, he would not have pleaded guilty to the assault charge. Id.⁴

The state Circuit Court denied Smith's R.Cr. 11.42 motion on the merits without a hearing. D.E. 8-3 at 28-31. Regarding Smith's bad-parole-advice claim, the court explained:

The defendant's issue[] is based on the fact that he disagrees with the calculation of his parole eligibility. This does not equate to ineffective assistance of counsel. Counsel negotiated a deal for concurrent sentencing, thus placing the defendant in the best possible position for parole consideration. The Department [of Corrections] calculates parole eligibility according to 501 KAR 1:030 regardless of whether the Court orders the sentences to run concurrently or consecutively.

Id. at 29. Regarding Smith's failure-to-investigate claim, the court dismissed it because it consisted of "bare allegations with no factual support." Id.

Smith filed a pro se appeal of the Circuit Court's decision, and the Kentucky Court of Appeals affirmed. Smith v. Commonwealth, No. 2013-CA-000532-MR, 2014 WL 3722010 (Ky. Ct. App. July 25, 2014), reh'g denied (Dec. 2, 2014), filed at D.E. 8-4 at 32-37. On August 12, 2015, the Kentucky Supreme Court denied discretionary review. D.E. 8-5 at 39.⁵

On August 26, 2015, Smith, through counsel, filed a petition for a writ of habeas corpus in this Court. D.E. 1. Smith requests an evidentiary hearing. Id. at 37; D.E. 12.

As discussed in Part II below, the undersigned recommends that Smith's petition be dismissed as time-barred. This Recommended Disposition will consider (1) Smith's original timeliness argument regarding his faulty advice claim under 28 U.S.C. § 2244(d)(1)(D); (2)Smith's new argument—raised for the first time in his reply brief—that his exhaustion of administrative remedies affected the running of the statute of limitations on his faulty advice claim; (3) the timeliness of his failure-to-investigate claim, and (4) his alternative argument that actual innocence or some other form of equitable tolling applies to his faulty advice claim. As an alternative basis for denying the petition, the Court will also explain (in Part III) why Smith's claims fail on the merits.

II. Statute of Limitations

A. Legal Standards Under AEDPA

A state prisoner has a statutory right to collaterally attack his conviction or sentence. West v. Bell, 242 F.3d 338, 346 (6th Cir. 2001). A state prisoner may seek federal habeas corpus relief on the ground that he is being held in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a).

The Antiterrorism and Effective Death Penalty Act, Pub L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), imposes a strict one-year statute of limitations for state habeas petitions:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—

(A) the date on which the judgment became final

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