Petition for Writ of Certiorari — Gary Clack, Petitioner v. Kentucky

No. 18In The Supreme Court Of The United States

GARY CLACK,

Petitionei

V.

COMMONWEALTH OF KENTUCKY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF KENTUCKY

PETITION FOR WRIT OF CERTIORARI

CHRISTINE FOSTER

Assistant Public Advocate

Department Of Public Advocacy

5 Mill Creek Park, Sec. 101

Frankfort, Kentucky 40601

Counsel for Petitioner Gary Clack

QUESTION PRESENTED

Clack’s trial counsel failed to investigate and present testimony of witness Brandon Clack at

his criminal trial, despite his client requesting that he do so. The victim stated that Brandon

Clack was present at the time of some of the alleged criminal conduct At a state post-conviction

hearing, new counsel presented testimony from Brandon who stated he had never witnessed any

criminal conduct between Clack and the victim. The trial court found that trial counsel for Clack

was ineffective for failing to investigate and present the witness, but that Clack was not

prejudiced because the jury returned a unanimous verdict. The Kentucky Court of Appeals

denied relief, again finding that trial counsel was ineffective, but that Clack was not prejudiced.

This result presents the following question:

Whether the Kentucky Court of Appeals properly applied the Strickland prejudice

prong when it held that trial counsel provided ineffective assistance of counsel by

failing to investigate and present witness testimony at trial, but that Clack was not

prejudiced by this deficient performance of counsel.

1

LIST OF PARTIES

All parties to the proceedings are named in the caption of the case.

11

TABLE OF CONTENTS

QUESTIONS PRESENTED

LIST OF PARTIES

ii

TABLE OF CONTENTS

iii

TABLE OF AUTHORITIES

iv

OPINIONS BELOW

1

JURISDICTIONAL STATEMENT

2

CONSTITUTIONAL AND STATUTORY PROVISIONS

2

STATEMENT Of THE CASE

2

REASONS FOR GRANTING THE WRIT

7

I.

The Kentucky Court of Appeals’ Application of the Strickland Prejudice

Prong Conflicts With This Court’s Authority When It Subjectively Held

That failure to Call a Witness Was Deficient Performance of Counsel, But

That Mr. Clack Was Not Prejudiced

7

CONCLUSION

13

CERTIFICATE Of SERVICE

14

APPENDIX

16

Clack v. Commonwealth, Case No. 2016-CA-0000 15-MR (Ky. Ct. App. June 30, 2017)

Apx.1

Order of the Kentucky Supreme Court Denying Discretionary Review, Case No. 2017-SC000373-D (March 14, 2018)

Apx. 13

Thai Court Post-conviction Opinion

Apx. 15

In

TABLE Of AUTHORITIES

Cases

Clackv. Commonwealth, Case No. 2016-CA-000015-MR (Ky. App. June 30, 2017)

1,3,7, $

Clackv. Commonwealth, 2010-SC-00793-MR, 2012 WL 601265 (Ky. 2012)

3

Gall v. Commonwealth, 702 S.W.2d 37, 39 (Ky. 1985)

9

Fudeiski v. Wilson, 576 F.3d 595, 607 (6th Cir.2009)

2

Stricklandv. Washington, 466 U.S. 668 (1984)

2,3,7, 8, 9, 10, 12

Statutes

28 U.S.C. § 1254

2

28 U.S.C. § 1257

2

Other Authorities

fourteenth Amendment

2

Sixth Amendment

2

Rules

Sup. Ct. R. 10(c)

13

Ky. RCr 11.42

3,6,10

iv

A. Procedural History

In 2010, Clack was tried by a jury and convicted of four counts of sexual abuse, rape and

sodomy and received the minimum sentence of twenty years. The Kentucky Supreme Court

affirmed his conviction in part, and reversed in part; vacating his sentences for four counts of

sexual abuse on direct appeal. Clack v. Commonwealth, 2010-SC-00793-MR, 2012 WL 601265

(Ky. 2012).

Following direct appeal, Clack initiated a state collateral post-conviction proceeding

pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. The trial court denied the

petition after conducting an evidentiary hearing. Apx.15-1 8. The Kentucky Court of Appeals

upheld the decision. Clack v. Commonwealth, 201 6-CA-0000 15-MR. Apx. 1-13.

After the submission of evidence at the evidentiary hearing, the trial court held that

counsel for Clack had been ineffective for his failure to investigate and present the testimony of

witness Brandon Clack, but that Clack was not prejudiced because the jury had returned a

unanimous verdict. Relief was denied. Apx. 15-19. Thereafter, Clack timely appealed. The

unpublished opinion of the Kentucky Court of Appeals denying Clacks’s post-conviction appeal

is found at Apx. 1-13.

The Kentucky Court of Appeals agreed with the lower court and found deficient

performance on the part of trial counsel concerning this witness. Apx. 6-7. The Court, however,

did not find that Clack was prejudiced. Apx. 7-8.

On March 14, 2018, the Kentucky Supreme Court denied Clack’s request for

discretionary review. Apx. 14.

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B. Facts Related to Ineffectiveness Claim.

Eleven (11) year old A.W. accused her mother’s friend, Gary Clack, of committing

numerous sexual violations against her on four separate occasions. With the exception of one

occurrence, A.W. stated witnesses were present at each of the alleged rapes, including her sister

who was two (2) years older. However, none of the eyewitness were ever interviewed by police

or by defense counsel. At trial, the Commonwealth guided A.W.’s testimony through a long

series of leading questions and the use of a demonstrative aid, without any objection by defense

counsel.

The first alleged sexual assault occurred on Cherry Street in Mr. Clack’s home. A.W. said

fourteen (14) people stayed in this home with her at the time. On the day in question, A.W. was

with her older sister and Mr. Clack in his bedroom watching the movie “Saw.” Her sister was

awake. When asked what Mr. Clack did to her on this occasion, A.W. first stated that he only

rubbed her back and denied any other touching. The Commonwealth then pushed for more detail,

but A.W. did not provide it. After a recess, A.W. returned and, using the terms “front” and

“back” to describe her body, stated that Mr. Clack vaginally and anally raped her while her sister

lay sleeping next to her in the bed. When asked by the Commonwealth how the sexual assault

felt, A.W. stated she did not remember. The Commonwealth tried to elicit a better answer by

rephrasing, “Do you remember how it felt when he was finished?” A.W. still responded, “No.”

A.W. claimed the second assault occurred at her home on Front Street. A.W., her older

sister, Mr. Clack, and his two sons Brandon and Michael were watching the movie “Norbit” in

the living room. A.W. said, through a series of leading questions, that Mr. Clack told her to sit on

his lap and then touched her “front” and “back” with his “private.” She stated everyone was

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awake at the time, and that Mr. Clack was sitting in the middle of the children. The

Commonwealth continued to resort to leading questions, attempting to draw out details from

A.W. concerning how this could have happened with other people in the room and no one notice.

A.W. responded, “I don’t know.” After additional leading, she stated that it was because he used

his hand to move himself around.

Through the use of continuous and uninterrupted leading, A.W. told of another sexual

assault that occurred at her front Street home. A.W. was listening to music in her bedroom when

Mr. Clack allegedly entered the room and touched her “front” and “back” with his hand and

“private”. A.W. claimed that another vaginal and anal sexual assault occurred at Mr. Clack’s

home while she watched the television show “Family Guy” in Mr. Clack’s bedroom with his two

sons Brandon and Michael. A.W. stated she fell asleep on the bed next to his sons, then awoke to

Mr. Clack raping her vaginally and anally, which she described as her “front and back”.

The Commonwealth also called medical expert Dr. Travis Calhoun of the Children’s

Advocacy Center. Dr. Calhoun testified that he found A.W. to have a large vaginal opening and a

“small irregularity at the seven o’clock position, although not a complete tear, of the hymen.” He

explained these variations could be completely normal and unrelated to sexual abuse or rape, but

he was concerned because of her allegations. When asked whether a finding of an intact hymen

could be consistent with vaginal rape, Dr. Calhoun shockingly testified, “It turns out that actually

in one third of cases, and there are medical studies to back this, that in one-third of documented

cases of pregnancy from penetration, obvious penetration with pregnancy, there are normal

findings of the hymen.” A.W. admitted she did not tell Dr. Calhoun that she was anally

penetrated.

5

Mr. Clack took the stand and denied that he ever touched A.W. inappropriately. His sons

were never interviewed by trial counsel, although A.W. had given statements that they were

present at the time of two sexual assaults.

The jury appeared to be on the edge of acquittal when it relayed questions during

deliberations asking if a lack of unanimity defaulted to a not guilty verdict. The jury also asked

the trial court to clarify the instructional statement “[i]f upon the whole case you have reasonable

doubt that he is guilty, you shall find him not guilty.”

The jury deliberated an additional day and then convicted Mr. Clack of four counts of

first-degree rape, four counts of first-degree sodomy, and four counts of first-degree sexual

abuse. He was sentenced to the minimum possible term of imprisonment of twenty years. The

Supreme Court of Kentucky reversed the four convictions for first-degree sexual abuse based on

palpable error, but affirmed the remaining convictions.

Following his direct appeal, Mr. Clack filed a pro se RCr 11.42 motion in Todd Circuit

Court on September 17, 2014. Appointed Counsel’s Supplement of Law to Movant’s Motion

Pursuant to RCr 11.42 was filed on or about February 24, 2015. On April 22, 2015, the Court

filed a Non-Final Order Denying RCr 11.42 Motion, wherein it held that an evidentiary hearing

would be limited to whether trial counsel had failed to investigate and subpoena eyewitness

Brandon Clack to testify. Mr. Clack’s other arguments were denied without a hearing. On

August 14, 2015, the Circuit Court held an evidentiary hearing where trial counsel, Mr. Clack,

and his son, Brandon Clack, testified.

Following the hearing, the Todd Circuit Court entered an Order overruling Mr. Clack’s

RCr 11.42 Motion. Apx. 15-18. The case then proceeded to the Court of Appeals, who denied

6

all relief in an unpublished opinion rendered on June 30, 2017. Clack v. Commonwealth, 2016CA-000015-MR. Apx. 1-13.

Both the trial court and the Kentucky Court of Appeals found counsel’s performance

deficient. See Apx. 6, 16. Nevertheless the Court found no prejudice to the client because the

witness was only present for two of the four alleged sexual assaults and testified that he may

have been asleep during part of the night. Apx. 6-8.

REASON FOR GRANTING THE WRIT

I.

The Kentucky Court of Appeals’ Application of the Strickland Prejudice

Prong Coufficts With This Court’s Authority When It Subjectively Held

That Failure to Call a Witness Was Deficient Performance of Counsel, But

That Mr. Clack Was Not Prejudiced.

The correct standard for determining prejudice

—

as promulgated by this Court

—

states

that a 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.” Strickland v.

Washington, 466 U.S. 66$; 694 (1984). By allowing relief when there is a reasonable probability

of a different outcome, the proper standard recognizes the limits of the retrospective inquiry and

balances the protection of the defendant’s constitutional rights with the interest in finality of

judicial outcomes.

The subjective and all but impossible to satisfy burden of proving prejudice imposed by

the Kentucky Court of Appeals in this case conflicts with the objective reasonable probability

test mandated by Strickland v. Washington, 466 U.S. 668 (1984).

Kentucky’s detour from the correct standard resulted in a failure to address the proof of

prejudice.

In asking this Court to hear this case, Clack is not asking the Court to reweigh

evidence previously addressed by a state court, but is simply asking the Court to apply the

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correct constitutional standard concerning the prejudice prong that is not substantially in dispute.

A. The Kentucky Court of Appeals Decision Conificts With Authority From

This Court That Mr. Clack Was Not Prejudiced By His Trial Counsel’s

Deficient Performance In Failing to Investigate And Present Witness

Testimony At Trial.

After conceding that no reasonable counsel would have acted as Clack’s trial counsel did

by failing to interview the witnesses (Apx. 7), the Kentucky Court of Appeals found that the

thoroughly ineffective performance of Clack’s counsel had not prejudiced him because:

We agree with the trial court that a reasonable attorney would have interviewed

Brandon to determine whether he could refute A.W.’s testimony regarding one of

the alleged sexual assaults. We cannot think of a reasonable basis for trial counsel

not to interview Brandon, especially after learning that he could potentially

corroborate Clack’s insistence that the alleged offenses did not occur. The

Commonwealth points out that Brandon was very young at the time of the trial.

However, trial counsel could have determined whether or not Brandon was

competent to testify by interviewing him. “It is not reasonable to refuse to

investigate when the investigator does not know the relevant facts the

investigation will uncover.” Dickerson v. Bailey, 453 F.3d 690, 696 (6th Cir.

2006). Trial counsel should have sufficiently investigated the cases so that he

could competently form a sound strategy.

Nevertheless, we also agree with the trial court that Clack was not prejudiced by

counsel’s failure. Brandon testified at the evidentiary hearing that he was present

at one of the alleged incidences and did not see or hear any sexual assault occur.

He did not remember if he was asleep, but stated that if he was asleep and

someone made movements on the air mattress, he would have woken up.

However, he acknowledged that sometimes people got in and out of the bed

without waking him.

While Brandon’s testimony may have lent support to Clack’s version of events in

regards to one of the alleged incidents, it was not such that the outcome of the

proceeding would have been different. Even were we to believe that Brandon’s

entire testimony was completely true, the incident could still have occurred

without Brandon having observed it. Brandon’s testimony did not contradict that

of A.W., or any of the other Commonwealth witnesses, nor did it substantially

affect the proof at trial. Consequently, Brandon’s proposed testimony has little

probative value and therefore is not sufficient to warrant reversal.

$

Apx. 8. The Kentucky Court of Appeals ruled that Clack’s claim must fail because he cannot

prove that the testimony would have substantially affected the proof at trial, despite the victim

stating that Brandon was present at two of the alleged sexual assaults.

To date, no other Kentucky case has addressed what level of proof is necessary to show

that the defendant was prejudiced by the inaction of trial counsel, when counsel’s actions have

been determined by the lower courts to be ineffective. The Court of Appeals ruled, “We cannot

think of a reasonable basis for trial counsel not to interview Brandon, especially after learning

that he could potentially corroborate Clack’s insistence that the alleged offenses did not occur”

but nevertheless held he was not prejudiced. Apx. 7.

Thai counsel “has the duty to make reasonable investigations or to make a reasonable

decision that makes a particular investigation unnecessary.” Strickland v. Washington, 466 U.s.

668, 691 (1984). “[Sjtrategic choices made after a thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable”. Id., at 690. However, “choices made

after less than complete investigation are reasonable precisely to the extent that reasonable

professional judgments support the limitations of the investigation.” Id., at 691; adopted by the

Supreme Court of Kentucky in Gall v. Commonwealth, 702 S.W.2d 37, 39 (Ky. 1985).

In measuring prejudice, the second prong, the inquiry is whether a reasonable probability

exists that but for counsel’s unprofessional errors the result of the proceeding would have been

different. Strickland, 466 U.S. at 694. A reasonable probability means a probability sufficient to

undermine confidence in the outcome considering the totality of the evidence before the jury.

Strickland, 466 U.S. at 694-95. furthermore, the Supreme Court in Strickland made it clear that

“reasonable probability” does not mean that counsel’s deficient conduct more likely than not

9

altered the verdict. In specific, the Court stated “[t]he result of a proceeding can be rendered

unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown

by a preponderance of the evidence to have determined the outcome.” Strickland, 466 U.S. at

694.

Regarding both the deficient performance and prejudice prongs of the Strickland test, “a

court should keep in mind that. the ultimate focus of the inquiry must be on the fundamental

. .

fairness of the proceeding whose result is being challenged. In every case, the court should be

concerned with whether, despite the strong presumption of reliability, the result of the particular

proceeding is unreliable because of a breakdown in the adversarial process that our system

counts on to produce just results”. Strickland, at 696.

Mr. Clack informed his attorney that his sons were both present at one of the alleged

events and asked that trial counsel interview them, and present them as defense witnesses at trial.

Brandon Clack was born on May 22, 2001 and would have been between seven (7) and eight (8)

years old at the time of the events and nine (9) at the time of trial. This is just one year younger

than A.W. at the time of the alleged offenses.

Brandon Clack testified at the RCr 11.42 evidentiary hearing that he remembers spending

time at the house with A.W., his brother Michael, his father Gary Clack, and a large number of

other people, during the relevant period of time. He has no memory of A.W. ever being sexually

violated in any way in his presence, which directly contradicts her statements. He further

testified to the fact that the bed in Gary Clack’s room was an air mattress. This fact is highly

significant.

Anyone who has slept on an air mattress knows that inflatable air mattresses do not

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testimony would have had provided vital third-party support to Mr. Clack’s claims that the abuse

allegations were false. This is particularly true in light of the unhelpful testimony of the medical

expert, and the fact that the jury returned from deliberating to ask whether their verdict had to be

unanimous. To hold otherwise renders the Stickland standard meaningless.

At its core, an ineffectiveness claim “is an attack on the fundamental fairness of the

proceeding whose result is challenged.” Strickland, 466 U.S. at 67$.

Regarding both the

deficient performance and prejudice prongs of the Strickland test, “a court should keep in mind

that. .the ultimate focus of the inquiry must be on the fundamental fairness of the proceeding

.

whose result is being challenged. In every case, the court should be concerned with whether,

despite the strong presumption of reliability, the result of the particular proceeding is unreliable

because of a breakdown in the adversarial process that our system counts on to produce just

results”. Strickland, at 696.

In this case, the jury never heard from eyewitness Brandon Clack simply because Clack’s

attorney failed to interview him. Trial counsel admitted that he would have wanted to speak to all

witnesses present and that, in hindsight, interviewing the children would have been the best thing

to do. Because Brandon Clack did not testify and the jury did not hear that the alleged events

took place on an air mattress, making it less likely that three children could have slept through

the events had they actually occurred. The circuit court held, “The evidence presented against

Clack in August of 2010 was sufficient but not overwhelming. The medical evidence was not

helpful and the evidence supporting conviction was primarily the victim’s testimony.” Apx. 16.

Trial counsel provided ineffective assistance of counsel in a manner that was both

unreasonable and resulted in great prejudice to Clack when he failed to interview and call

12

Brandon Clack to testify. But for counsel’s unprofessional errors, there is a reasonable

probability that the result of the proceeding would have been different. The level of proof

required to establish prejudice where an eyewitness is not investigated is a matter of first

impression in Kentucky. The Court of Appeals provided no case law or other judicially

established means to determine how prejudice may be established when counsel’s inactions are

found to be unreasonable and ineffective. The standard of review cannot be that the errors did

not prejudice the criminal defendant because the jury verdict was unanimous. Such a holding

would turn Stickland on its head, making a finding of prejudice impossible for anyone convicted

by a jury.

CONCLUSION

The Kentucky Court of Appeals impregnable barrier to establishing prejudice in the

context of Strickland is simply not the law of and conflicts with the decisions of this Court.

Pursuant to Sup. Ct. R. 10(c), this Court should grant Petitioner’s Writ of Certiorari.

Alternatively, this Court can grant, vacate, and remand to the Kentucky Supreme Court with

directions to provide Clack plenary review of his claims consistent with Strickland.

Respectfully submitte

CHRISTINE FOSTER

Assistant Public Advocate

Department Of Public Advocacy

5 Mill Creek Park, Sec. 101

Frankfort, Kentucky 40601

(502) 564-3948

Counsel for Petitioner Gary Clack

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No. 1$-______

In The Supreme Court Of The United States

GARY CLACK,

Petitioner,

V.

COMMONWEALTH OF KENTUCKY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT Of KENTUCKY

CERTIFICATE OF SERVICE

I hereby certify that Petitioner’s Motion to Proceed In Forma Pauperis and Petition for

Writ of Certiorari were sewed via regular U.S. Mail, on this 12th day of June, 2018 upon:

Ms. Tami Allen Stetler

Criminal Appellate Division

Office of the Attorney General

1024 Capital Center Drive

Frankfort, KY 4060 1-8204

Mi persons required to be sewed have been sewed.

Respectfully submitted,

CHRISTINE FOSTER

Assistant Public Advocate

Department Of Public Advocacy

14

5 Mill Creek Park, Sec. 101

Frankfort, Kentucky 40601

(502) 564-3948

Counsel for Petitioner Gary Clack

15