Petition for Writ of Certiorari — Christopher Koteras, Petitioner v. Daniel Akers, Warden

t INDEX TO APPENDICES

APPENDIX A

Denial of petition for panel rehearing before Stranch, Bush, and Mathis,

Circuit Judges, Koteras v. Akers, Case No. 23 - 5979, entered on Aug. 5,

2024.

APPENDIX B

. Denial of application for certificate of appealability before Clay, Circuit

Judge, Koteras v. Akers, Case No. 23 - 5979, entered on May 16, 2024.

APPENDIX C

Denial of §2254 petition by Kentucky Eastern, District Court judge, Hon.

Claria Horn Boom.

Koteras v. Akers, Case No. 5:20-CV-186-CHB-MAS (E.D. Ky. Sept. 14,

2023)

APPENDIX D

Report and Recommendation of §2254 petition by Magistrate Judge, Hon.

Matthew A. Stinnett.

Koteras v. Akers, Case No. 5:20-CV-186-CHB-MAS (Jan. 19, 2023)

APPENDIX E

Kentucky Supreme Court, denial of motion for discretionary review

Koteras v. Commonwealth, Case No. 2019-SC-000035-D (Ky. Dec. 13,

2019)

APPENDIX F

Motion for discretionary review, Koteras v. Commonwealth, Case No.

2019-SC-000035-D, submitted Mar. 6, 2019.

APPENDIX G

Kentucky Court of Appeals, Order granting in part and denying in part the

Commonwealth's motion to strike brief for Appellant.

Koteras v. Commonwealth, Case 2017-CA-000506-MR (Ky. App. Dec. 21,

2018)

APPENDIX H

Kentucky Court of Appeals Opinion affirming trial court's denial of post­

collateral 11.42 motion

Koteras v. Commonwealth, Case 2017-CA-000506-MR, 589 S.W.3d 534,

(Ky. App. Dec. 21, 2018)

APPENDIX I

Trial Court order denying post-collateral (RCr 11.42) motion.

Koteras v. Commonwealth, Case No. Case No. ll-CR-00087,

entered on Judgment entered March 7, 2017

Jessamine Circuit Court.

APPENDIX J

Petition for Certificate of Appealability

Koteras v. Akers, Case No. 23 - 5979, submitted Nov. 6, 2023

APPENDIX K

KRS § 15.760. Staff of Commonwealth’s attorneys — County’s duty to

provide grand jury and witness rooms — Victim advocate.

APPENDIX L

421.500. “Victim” defined for KRS 421.500 to 421.575 —Applicability

— Required notifications — Duties of public officers and agencies —

Restitution — Construction of KRS 421.500 to 421.575.

APPENDIX M

KRS 31.110. Persons entitled to department representation and services

Extent of representation and services — Rights of representation for

persons subject to proceedings under KRS Chapter 202C.

APPENDIX N

Cal Pen Code § 868.5 Attendance of persons to support prosecuting

witness in specified cases

APPENDIX O

Kentucky Civil Rule Procedure (CR) Rule 76.12. Briefs

No. 23-5979

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CHRISTOPHER KOTERAS,

Aug 5, 2024

KELLY L. STEPHENS, Clerk

)

)

Petitioner-Appellant,

)

)

v.

)

ORDER

)

DANIEL AKERS, Warden,

)

)

Respondent-Appellee.

)

Before: STRANCH, BUSH, and MATHIS, Circuit Judges.

/

Christopher Koteras, a pro se state prisoner, petitions for rehearing of our May 16, 2024,

order denying his motion for a certificate of appealability. We have reviewed the petition and

conclude that this court did not overlook or misapprehend any point of law or fact in denying

Koteras’s motion for a certificate of appealability. See Fed. R. App. P. 40(a)(2).

Accordingly, the petition for rehearing is DENIED.

ENTERED BY ORDER OF THE COURT

I

Kelly L. Stephens, Clerk

f\

No. 23-5979

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

May 16, 2024

KELLY L. STEPHENS, Clerk

CHRISTOPHER KOTERAS,

)

)

)

)

)

)

)

)

)

Petitioner-Appellant,

v.

DANIEL AKERS, Warden,

Respondent-Appellee.

ORDER

Before: CLAY, Circuit Judge.

Christopher Koteras, a state prisoner, appeals pro se from a district court order denying his

petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. The district court denied a

certificate of appealability (“COA”). Koteras now applies for a COA. As discussed below, this

Court denies the application.

A jury convicted Koteras on eight counts of first-degree sexual abuse of a minor child

called “Amanda.” The trial court sentenced him to the statutory maximum sentence of 20 years

of imprisonment. The Kentucky Supreme Court affirmed the convictions and sentence. Koteras

v. Commonwealth, No. 2012-SC-000649-MR, 2014 WL 5410233 (Ky. Oct. 23, 2014).

During state post-conviction proceedings, the trial court conducted an evidentiary hearing

and denied post-conviction relief.

The Kentucky Court of Appeals affirmed.

Koteras v.

Commonwealth, 589 S.W.3d 534 (Ky. Ct. App. 2018).

In his § 2254 petition, Koteras claimed that (1) trial counsel was ineffective for failing to

object to a victim’s advocate directing Amanda’s testimony, (2) trial counsel was ineffective for

failing to investigate a recommendation to conduct a forensic evaluation of the Child Advocacy

Center (“CAC”) interview with Amanda and present expert testimony, (3) counsel at trial and on

direct appeal were ineffective for failing to protect Koteras’ right to receive notice of the charges,

&

No. 23-5979

-2-

(4) trial counsel was ineffective for failing to object to inadmissible evidence, (5) trial counsel was

ineffective for failing to object to the prosecution’s improper cross-examination, (6) trial counsel

was ineffective for failing to object to the prosecution’s vouching, bolstering, and improper

comments at closing arguments, (7) trial counsel was ineffective for failing to present character

witnesses, (8) trial counsel was ineffective for failing to present exculpatory evidence, and (9)

cumulative error denied Koteras a fair trial. The warden filed an answer.

In his report, the magistrate judge recommended that some of Koteras’ ineffective

assistance claims be denied as meritless and others as procedurally defaulted and that ground 9,

the cumulative-error claim, be deemed non-cognizable on habeas review,

Over Koteras’

objections, the district court adopted the magistrate judge’s report and recommendation and denied

habeas relief. The district court denied a COA.

Koteras now seeks a COA for grounds 1,2, 3,6, and 8, which are all ineffective assistance

claims.

A state prisoner must obtain a COA to appeal from the denial of § 2254 relief, which

requires making a substantial showing of the denial of a constitutional right.

§ 2253(c)(l)-(2).

28 U.S.C.

A substantial showing is made where the applicant demonstrates that

“reasonable jurists could debate whether (or, for that matter, agree that) the petition should have

been resolved in a different manner or that the issues presented were ‘adequate to deserve

encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting

Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). When a claim has been rejected on the merits,

“[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong.” Id. at 484. “[A] claim can be debatable even

though every jurist of reason might agree, after the COA has been granted and the case has received

full consideration, that petitioner will not prevail.” Miller-El v. Cockrell, 537 U.S. 322, 338

(2003). Where the district court denies a claim on procedural grounds only, a COA should issue

when “the prisoner shows, at least, 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

No. 23-5979

-3find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S.

at 484.

An allegation of trial counsel ineffectiveness requires a showing that counsel’s deficient

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). “[A]

court must indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance,” meaning that the defendant “must overcome the presumption

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

Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

Ground 1—Failure to object to victim’s advocate

Koteras raised ground 1, that trial counsel failed to object to the victim’s advocate’s

gestures at trial, on post-conviction review. The Kentucky Court of Appeals noted that the victim’s

advocate was permitted to be in the courtroom to support and confer with the victim under

Kentucky Revised Statute § 421.575. The state appellate court denied relief, determining that trial

counsel successfully requested that the victim’s advocate be seated following direct examination.

Koteras, 589 S.W.3d at 545—46. Koteras’ reliance on Sharp v. Commonwealth, 849 S.W.2d 542,

547 (Ky. 1993) is misplaced, because the Kentucky Court of Appeals found no evidence that the

victim’s advocate did anything other than ensure that Amanda spoke loud enough to be heard.

Koteras, 589 S.W.3d at 545. Because the victim’s advocate did not violate state law and trial

counsel successfully objected to the location of the victim’s advocate during Amanda’s testimony,

reasonable jurists would not debate the district court’s conclusion that Koteras did not show that

the state court unreasonably determined the facts or applied the law.

Ground 2—Failure to investigate recommendation for forensic evaluation

On post-conviction review, the Kentucky Court of Appeals denied ground 2, that trial

counsel failed to investigate a recommendation to conduct a forensic evaluation of the CAC

interview with Amanda and present expert testimony. The Kentucky Court of Appeals explained

that, although Dr. Drogin, the defense expert, recommended that trial counsel have someone

scrutinize the CAC interview, he admitted that children are commonly asked leading questions

No. 23-5979

-4and that he was not qualified to explain how a forensic evaluation of Amanda’s interview would

help the defense. Id. at 544. Trial counsel also decided that obtaining a forensic evaluation would

have been more harmful than beneficial. Id. Further, the Kentucky Court of Appeals did not have

access to Amanda’s interview with CAC, and Koteras raised no challenge to any specific

questions. Id. Failing to provide the evidence about which he complains or identify its specific

problem, Koteras cannot meet “the burden of showing that the decision reached would reasonably

likely have been different absent the errors.” Strickland, 466 U.S. at 696. In denying ground 2,

the district court noted that trial counsel retained a mental health expert and determined that

additional investigation would not have been helpful. Reasonable jurists would not find the district

court’s decision debatable or wrong.

Ground 3—Failure to protect Koteras’s right to notification of charges

The Kentucky Court of Appeals found that first part of ground 3—which was raised on

post-conviction review and asserted that trial counsel failed to protect Koteras’ right to notification

of the charges—should have been raised on direct appeal. Koteras, 589 S.W.3d at 546. The

Kentucky Court of Appeals also determined that the trial counsel subclaim lacked merit, because

trial counsel had discussed and received information about the eight charges on which Koteras was

tried and convicted in a letter from the prosecution, and Koteras admitted that trial counsel

discussed notice of the charges with him. Id. The district court concluded that the trial counsel

subclaim was meritless.

This subclaim is procedurally defaulted. See Wheeler v. Simpson, 852 F.3d 509, 515 (6th

Cir. 2017). In any event, reasonable jurists would agree that Koteras cannot show that trial counsel

was ineffective. The prosecution had been ordered to provide a bill of particulars. Koteras, 589

S.W.3d at 547. It would have been futile for trial counsel to make such a request, and failure to

do so does not constitute ineffective assistance. See Richardson v. Palmer, 941 F.3d 838, 857 (6th

Cir. 2019). Further, the prosecution did provide the defense with notice of the eight charges, albeit

in letter form. Koteras’s defense theory was that “Amanda failed to report the abuse because the

abuse never happened” and she “fabricated the allegations to avoid visitations with Koteras and to

No. 23-5979

-5avoid going on a trip to Florida with him during her approaching spring break,” during which she

had plans with her friends. Koteras, 2014 WL 5410233, at *5. Koteras has not explained how

being provided a bill of particulars would have affected his defense or the outcome of trial. See

Strickland, 466 U.S. at 694. Reasonable jurists would not find the district court’s decision

debatable or wrong.

The Kentucky Court of Appeals declined to address the second part of ground 3, which

concerned appellate counsel’s shortcomings on the notice issue—and which Koteras raised “as an

aside and not as a numbered claim” but the trial court did not address. Koteras, 589 S.W.3d at 547.

The Kentucky Court of Appeals determined that Koteras “did not give the trial court an opportunity

to correct any oversight by seeking reconsideration of the motion to vacate or moving for specific

findings.” Id. As with the previous claim, Koteras cannot establish prejudice under Strickland.

Reasonable jurists would not find the district court’s decision debatable or wrong.

Ground 6—Failure to object to prosecution’s alleged bolstering, vouching, and improper

comments

Ground 6, Konteras’ claim that trial counsel failed to object to prosecution’s bolstering,

was also raised on post-conviction review. The Kentucky Court of Appeals denied relief as to the

bolstering claim, finding that “the prosecutor never referenced particular testimony from

[Amanda], nor commented on her truthfulness.” Koteras, 589 S.W.3d at 548. Noting that trial

counsel’s 30-minute closing argument “attacked” Amanda, the Kentucky Court of Appeals

characterized the prosecution’s closing argument as “fair and an invited response to the defense

closing.” Id. In denying ground 6, the district court determined that trial counsel was not

ineffective because the prosecution’s comments during closing arguments did not vouch for or

bolster Amanda’s credibility.

Prosecutors have “‘wide latitude’ to respond to the defense’s case” in closing arguments,

and their comments are not improper if they respond to the evidence presented or to defense

counsel’s closing arguments without denigrating defense counsel. See Wogenstahl v. Mitchell,

668 F.3d 307, 330 (6th Cir. 2012) (quoting Bedford v. Collins, 567 F.3d 225, 233 (6th Cir. 2009)).

Koteras does not allege that the prosecutor’s comments denigrated trial counsel. Because the

No. 23-5979

-6prosecution’s comments were proper, it would have been futile for trial counsel to object. See

Richardson, 941 F.3d at 857. Reasonable jurists would not find the district court’s decision

debatable or wrong.

Ground 8—Failure to present exculpatory evidence

The district court concluded that, although ground 8 was procedurally defaulted, the claim

also lacked merit because trial counsel unsuccessfully tried to introduce evidence of Koteras’ offer

to take a polygraph examination. Koteras now admits that he did not raise ground 8 on appeal

from the denial of post-conviction relief. For exhaustion purposes, “state prisoners must give the

state courts one full opportunity to resolve any constitutional issues by invoking one complete

round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838,

845 (1999). Failure to exhaust state remedies properly results in a claim being procedurally

defaulted. Id. at 848. Koteras must demonstrate cause and prejudice to overcome the default.

Coleman v. Thompson, 501 U.S. 722, 750 (1991). Koteras’ effort fails, however, because he has

no right to the effective assistance of counsel on post-conviction appeal. See Martinez v. Ryan,

566 U.S. 1, 15-16(2012).

In any event, as the district court concluded, Koteras cannot show that trial counsel was

ineffective. Kentucky permits the evidence of a polygraph examination to be admitted in limited

circumstances, such as “to inform the jury as to the circumstances in which a confession was

made.” Rogers v. Commonwealth, 86 S.W.3d 29, 40 (Ky. 2002). Koteras neither confessed nor

submitted to a polygraph examination but wanted to convey his willingness to do the latter. Under

Kentucky law, however, “a party’s offer to take a polygraph or refusal to take a polygraph is

inadmissible.” Bowe v. Commonwealth, No. 2019-SC-0368-MR, 2020 WL 7395167, at *6 (Ky.

Dec. 17, 2020) (citing Stallings v. Commonwealth, 556 S.W.2d 4 (Ky. 1977), and Penn v.

Commonwealth, 417 S.W.2d 258 (Ky. 1967)). Counsel was not ineffective for failing to make a

futile motion. See Richardson, 941 F.3d at 857. Reasonable jurists would not find the district

court’s decision debatable or wrong.

No. 23-5979

-7-

For the foregoing reasons, Koteras’ COA application is DENIED.

ENTERED BY ORDER OF THE COURT

Case: 5:20-cv-00186-CHB-MAS Doc #: 38 Filed: 09/29/23 Page: 1 of 25 - Page ID#: 1065

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

CENTRAL DIVISION

(at Lexington)

CHRISTOPHER KOTERAS,

)

)

)

Petitioner,

)

)

)

)

)

.)

v.

DANIEL AKERS, Warden,

Respondent.

Civil Action No. 5:20-CV-186-CHB-MAS

MEMORANDUM OPINION

AND ORDER

*** *** *** ***

This matter is before the Court upon Petitioner Christopher Koteras’s Objections [R. 32]

to Magistrate Judge Matthew A. Stinnett’s Recommended Disposition [R. 27] (hereinafter,

“Recommendation”) of Koteras’s petition for a writ of habeas corpus pursuant to 28 U.S.C. §

2254 [R. 1], The Court has thoroughly reviewed the entire record, the relevant legal authority,

and the Recommendation, and agrees with Magistrate Judge Stinnett’s careful analysis and

conclusions for the reasons that follow.

I.

Background

In May of 2011, Koteras was charged with 24 counts of Sexual Abuse in the First Degree

in the Circuit Court of Jessamine County, Kentucky. [R. 11-2, p. 29]. The charges arose from

Koteras’s repeated sexual abuse of his daughter over the course of four years when she was

between the ages of seven and eleven. Id. at 19-28. The prosecution dismissed sixteen counts

prior to trial. Id. at 30. A jury convicted Koteras on all eight remaining counts in July of 2012.

Mat 20-27. The trial court sentenced Koteras to the twenty-year statutory maximum sentence.

Id. at 30-32. Koteras appealed, but the Kentucky Supreme Court affirmed his convictions and

]Q(Pp&ndi/ Ca

Case: 5:20-cv-00186-CHB-MAS Doc #: 38 Filed: 09/29/23 Page: 2 of 25 - Page ID#: 1066

sentence. See Koteras v. Commonwealth, No. 2012-SC-00649-MR, 2014 WL 5410233 (Ky. Oct.

23, 2014).

Koteras filed a motion to vacate his conviction and sentence pursuant to RCr 11.42 in

August of 2015. [R. 1, p. 3], Following an evidentiary hearing, the trial court denied the motion

in March 2017. Id. Koteras appealed, but the Kentucky Court oT Appeals affirmed the denial of

relief in December of 2018. See Koteras v. Commonwealth, 589 S.W.3d 534 (Ky. App. 2018).

The Kentucky Supreme Court denied discretionary review on December 13, 2019. [R. 11-2, p.

352],

fa MayJjf 2020, Koteras fifed his petition for a_wriLof habeas^jDrpjas^iursuantJo_28_

U.S.C. § 2254 in this Court. [R. 1], Koteras claims that his counsel at trial and on direct appeal

provided ineffective assistance in numerous particulars. See generally [R. 1]; [R. 1-1], Following

briefing by the parties, [R. 11]; [R. 22], Magistrate Judge Stinnett issued his Recommendation

that each of Koteras’s habeas claims be denied as procedurally defaulted, substantively without

merit, or both. [R. 27], Koteras has filed timely objections. [R. 32],

II.

Standard of Review

The Court must make a de novo determination of those portions of the Recommendation

to which objections have been made. 28 U.S.C. § 636(b)(1). The Court liberally construes

Koteras’spro se submission. See Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011).

Before a petitioner may assert a claim seeking federal habeas relief, he. must have fully

utilized, or “exhausted,” all available opportunities to present a particular claim to the state

courts for consideration. 28 U.S.C. § 2254(b)(1)(A). To exhaust a claim, the petitioner must

“fairly present” it to the state courts by clearly indicating both its factual basis and the federal

legal grounds upon which it is predicated. Hicks v. Straub, 377 F. 3d 538, 552-53 (6th Cir. 2004)

-2-

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(“[T]he exhaustion doctrine requires the petitioner to present the same claim under the same

theory to the state courts before raising it on federal habeas review.”) (cleaned up).

The petitioner must comply with state procedural rules when presenting his federal

claims to the state courts for consideration. If he fails to do so, the claim is “procedurally

defaulted” and may not be considered on federal habeas review. Gerth v. Warden, Allen

Oakwood Corr. Instit., 938 F. 3d 821, 826-27 (6th Cir. 2019). A petitioner procedurally defaults

a claim if the last state court to address it refuses to consider its merits because the petitioner did

not comply with a state procedural rule that (1) is independent of the federal claim and (2) is

adequate to support the judgment. Lovins v. Parker, 712 F. 3d 283, 295 (6th Cir. 2013).

Procedural default also occurs if the petitioner did not present the federal claim to the state courts

for consideration, and state procedures no longer permit the claim to be raised when the federal

habeas petition is filed. Williams v. Burt, 949 F. 3d 966, 972—73 (6th Cir. 2020).

A federal court considering the merits of a § 2254 claim applies a deferential standard of

review. It will not grant relief unless the state court’s ruling:

(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 State court proceeding.

28 U.S.C. § 2254(d)(l)-(2). Under subsection (d)(1), a state court decision is “contrary to”

Supreme Court precedent 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 has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S.

362, 412-13 (2000) (cleaned up). A state court “unreasonably applies” Supreme Court precedent

when “the state court identifies the correct governing legal principle from the Supreme Court’s

-3-

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decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413

(cleaned up). Federal habeas relief is not available for state law application errors unless the error

resulted in the denial of a fundamentally fair trial. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)

(“[I]t is not the province of a federal habeas court to reexamine state-court determinations on

state-law questions:”); see also Brooks v. Anderson, 292F. App’x 431, 437 (6th Cir. 2008).

When the petitioner asserts under subsection (d)(2) that the state court unreasonably

determined the facts, the state court’s findings of fact are presumptively correct, and the

petitioner must rebut that presumption by clear and convincing evidence. See 28 U.S.C.

T2254ItTCmerv: Brogdh; 9WT:3irT5A: 768T6th Cir. 2018)~(7Th^Fecord"musrcomper the

conclusion that the state court had no permissible alternative but to arrive at the contrary

conclusion.”) (quoting Rice v. Collins, 546 U.S. 333, 341-42 (2006)) (cleaned up). Collectively,

these rules establish a “‘highly deferential standard for evaluating state-court rulings,’ which

demands that state-court decisions be given the benefit of the doubt.” Woodford v. Visciotii, 537

U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 520 U.S. 320, 333 n.7 (1997)). By

design, the habeas petitioner faces a burden that is “difficult to meet.” White v. Woodall, 572

U.S. 415, 419 (2014).

In this case, Koteras asserts that trial and appellate counsel rendered constitutionally

ineffective assistance. See generally [R. 1-1], The Sixth Amendment affords every defendant in a

criminal trial the right to “the Assistance of Counsel for his defense.” U.S. Const. amend._VI.

The right is designed to ensure that the defendant actually receives a fair trial. United States v.

Cronic, 466 U.S. 648, 658 (1984). Therefore, to satisfy the Sixth Amendment’s mandate, defense

counsel must be “effective.” Strickland v. Washington, 466 U.S. 668, 685-86 (1984); McMann v.

-4-

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Richardson, 397 U.S. 759, 771 n.14 (1970) (“It has long been recognized that the right to

counsel is the right to the effective assistance of counsel.”)-

'

To establish ineffective assistance of counsel, a defendant must make two showings.

First, he must demonstrate that his attorney’s performance was deficient, meaning that “counsel

made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth

Amendment.” Strickland, 466 U.S. at 687. When evaluating counsel’s performance, a reviewing

court is required to “indulge a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” Id. at 689. Second, the defendant inust“establiih

that his counsel’s performance was so prejudicial as to deprive him of a fair trial. To demonstrate

such prejudice, he must establish “a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694;

Harvey v. United States, 798 F. App’x 879, 883—84 (6th Cir. 2020).

When a state court has rejected an ineffective assistance claim on the merits, the federal

habeas court’s review of the claim is “doubly deferential,” both because counsel is “strongly

presumed to have rendered adequate assistance and made all significant decisions in the exercise

of reasonable professional judgment,” Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016) (quoting

Cullen v. Pinholster, 563 U.S. 170, 190 (2011); Burt v. Titlow, 571 U.S. 12, 22 (2013)), and in

light of the deferential standard of review embodied in § 2254(d). Therefore, the federal habeas

court, viewing an ineffective assistance claim through two layers of deference, asks only

“whether there is any reasonable argument that counsel satisfied Strickland’s deferential

standard.” Harrington v. Richter, 562 U.S. 86, 105 (2011). And “because the Strickland standard

is a general standard, a state court has even more latitude to reasonably determine that a

defendant has not satisfied that standard.” Shinn v. Kayer, 141 S. Ct. 517, 523 (2020) (quoting

-5-

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Knowles v. Mirzayance, 556 U.S. Ill, 123 (2009)); see also Walker v. McQuiggan, 656 F.3d

311, 323 (6th Cir. 2011) (“[T]he Supreme Court’s Strickland guidelines provide us only minimal

direction. But in a habeas case, such generality necessarily works to the petitioner’s

disadvantage.”) (Cook, J., dissenting), cert, granted, judgment vacated sub nom. Howes v.

Walker, 567 U.S: 901 (2012); The Court considers Koteras’s claims with these standards in

mind.

m.

Analysis

Koteras raises a host of objections to Magistrate Judge Stinnett’s Recommendation, and

the Court addresses each in turn.

A. Victim Advocate’s Gestures

First, Koteras alleges that during the trial testimony of “Amanda” (the pseudonym given

to his minor daughter and the victim in his case), Victim’s Advocate Dawn Seamands made hand

gestures and head movements directed toward Amanda. [R.' 1-1, pp. 15-20]. Koteras further

alleges that he immediately brought this to the attention of his attorneys, but that neither acted

immediately to stop it. Id. Instead, counsel only objected thirty minutes later, before beginning

their cross-examination, at which time the trial judge directed Seamands to move to the Front row

of the gallery. Id. Koteras contends that Seamands’s actions exceeded those permitted by the

enabling Kentucky statute and improved Amanda’s confidence as a witness, effects which

assertedly violated his right to a fundamental ly/air trial. Id.

During collateral review proceedings, the two attorneys who represented Koteras at trial

stated that they did not personally see Seamands give Amanda any signals, but that during trial,

Koteras told them that she had. [R. 1-4, p. 5]. Witnesses for Koteras also testified that they saw

Seamands make some gestures but acknowledged that they did not communicate this to counsel

-6-

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at trial. Id. For her part, Seamands testified that she only motioned for Amanda to keep her voice

up during her testimony by gesturing her thumb upwards and by cupping her hand to her ear. Id.

The trial judge indicated that he did not see Seamands making any improper gestures. See id.

(“The only motions made by Ms. Seamands were for Amanda to keep her voice up.”). On

appeal, the Kentucky Court of Appeals found no error in the trial court’s factual findings that

Seamands’ gestures were not improper and did not amount to coaching the witness, and therefore

held that defense counsel was not ineffective for failing to object sooner. Koteras, 589 S.W.3d at

545—46.

Considering these findings, Magistrate Judge Stinnett concluded that Koteras has failed

to demonstrate either that the state courts made an unreasonable determination of fact or

unreasonably applied the law. [R. 27, pp. 5-7]. On review, this Court fully concurs. Koteras is

the only person who alleges he both saw improper gesturing by Seamands and communicated his

concerns to counsel. On the other hand, Seamands contradicted Koteras’s allegation regarding

the nature of her gestures toward Amanda, and neither of his attorneys nor the trial judge' saw

any improper communication. Koteras fails to demonstrate that the Kentucky courts

unreasonably determined as a factual matter than Seamands’ gestures were not improper

coaching. And Koteras’s repeated objection that the Kentucky “Court of Appeals relied on an

interpretation of KRS 421.575 which is inconsistent with established state law,” [R. 32, p. 6],

fails to establish grounds for federal habeas relief. Estelle, 502 U.S. at 67-68. The Kentucky

courts did not unreasonably apply federal law in concluding that Koteras had shown neither

deficient performance nor resulting prejudice. Moreover, Koteras points to no precedent from the

United States Supreme Court establishing error.

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B. Counsel’s Decision Not to Hire Psychiatrist

Prior to trial, Koteras’s attorneys hired psychologist. Dr. Eric Drogin to assist in the

defense. In a May 14, 2012 letter, Dr. Drogin advised counsel to hire a psychiatrist to evaluate

;—r _

Amanda. See [R. 11-2, pp. 35-36]. The letter further suggested that the psychological expert

should review video of an interview with Amanda conducted by the Child Advocacy Center

(“CAC”) shortly before criminal charges were filed to determine if the questions asked were

excessively or improperly leading. Id. After consulting with Koteras, counsel decided against

that advice because they believed it was not helpful to their strategy in the case. See Koteras, 589

S.W.3d at 543-44. Counsel intended to argue that Amanda was scared of Koteras because of his

admitted psychological, verbal, and physical abuse, and fabricated the sexual abuse allegations to

avoid spending time with him. Id. Further, at the time charges were filed, Koteras was in the

midst of an acrimonious divorce with Amanda’s mother, and counsel intended to depict the

mother as supportive of the abuse allegations to obtain advantage in the dissolution proceedings.

Id. Counsel also feared that a new evaluation might open the door to the admission of unhelpful

testimony from therapist Janet Vessels. Id. Notwithstanding, Koteras’s second claim is that his

attorneys were ineffective because they declined to follow Dr. Drogin’s recommendation. [R. I,

pp. 20-31],

The Kentucky Court of Appeals rejected this claim, noting that Dr. Drogin testified

during collateral review proceedings that the possible effects, of leading questions were his only

concern, and that, in cases of child sexual abuse, such questions are often asked of the young

victim to help elicit a response. Koteras, 589 S.W.3d at 542—44. Dr. Drogin, who is also an

attorney, further testified that, overall, the CAC interview was “fairly standard,” and that, given

the trial strategy, it was within the discretion of Koteras’s counsel to decide not to hire the

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additional expert. The Kentucky courts therefore held that the decision not to pursue that avenue

fell well within trial counsel’s broad discretion and did not amount to ineffective assistance. Id.

As Magistrate Judge Stinnett noted in his Recommendation, Koteras’s trial counsel

retained an expert but concluded that further psychological investigation of Amanda or a review

of her CAC interview would not bear further fruit in light of the defense strategy of the case. As

a practical matter, time and money limit defense counsels’ ability to investigate every

conceivable defense, and counsels’ choice of certain strategies necessarily limits or excludes

others. Here, counsel reasonably concluded that further investigation would likely not be helpful

and could open the door to the introduction of potentially harmful testimony. Even without the

two-fold deference required by Strickland and Section 2254(d), that conscious strategic decision

was eminently reasonable. See Strickland, 466 U.S. at 699 (“Restricting testimony on

respondent’s character to what had come in at the plea colloquy ensured that contrary character

and psychological evidence and respondent’s criminal history, which counsel had successfully

moved to exclude, would not come in.”).

Finally, Koteras offers only unsupported conjecture, not evidence, that the information

obtained would not only have been helpful, but so helpful as to produce a reasonable likelihood

that the outcome of the trial would have been different. This fails to demonstrate any prejudice.

See Harvey, 798 F. App’x at 883-84. The Kentucky Court of Appeals so held, and Koteras fails

to point to any Supreme Court precedent indicating that this conclusion was incorrect.

C. Details of Each Instance of Abuse

Koteras was originally charged with committing sexual abuse of Amanda on twenty-four

separate occasions. [R. 11-2, p. 29]. The indictment did not specifically identify the conduct

involved in each instance or the date on which it occurred. See [R. 1-1, p. 31]. However, the

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prosecutor’s office in Jessamine County maintained an “open file” policy, permitting defense

counsel to review at its convenience all non-confidential information about the prosecution’s

case, including such specifics. Koteras, 589 S.W.3d at 547. As stated, before trial, the

prosecution dismissed sixteen of the counts. [R. 11-2, p. 20]. Koteras’s counsel then requested

particularized information regarding each of the remaining counts, which the trial court directed.

Id. Nine days before trial, in a letter to defense counsel dated July 16, 2012, the prosecution set

forth the particular facts supporting each of the eight remaining counts. Id. In his petition,

Koteras asserts that counsel were ineffective because, he alleges, this information was not

relayed to^ him before trial and he only discovered the particular occasions of alleged sexual

abuse from trial testimony. See [R. 1-1, pp. 31-32].

The Kentucky Court of Appeals, however, held that Koteras “admitted trial counsel

discussed notice of the charges with him,” and noted that trial counsel testified during collateral

review proceedings that they were folly aware of the nature of the charges against Koteras.

Koteras, 589 S.W.3d at 546. Further, Koteras’s defense at trial was not to argue the specific

events of any given sexual assault, but to deny that any of them had ever occurred. As a result,

the success of that defense hinged simply upon whether the jury found Amanda or Koteras to be

the more credible witness. Accordingly, Koteras failed to demonstrate prejudice because the

specifics of each particular offense were not pertinent given his across-the-board assertion that

none of the episodes of abuse had occurred at all. Id. at 547. And_as aptly noted in Magistrate

Judge Stinnett’s Recommendation, Koteras fails to show that he would have pursued a different

defense theory if the information had been provided sooner. [R. 27, p. 12]. Koteras has failed to

establish any viable basis for habeas relief on this claim.

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In his objections, Koteras argues that he is entitled to de novo review of this claim

because, he contends, the Kentucky Court of Appeals required him to show that-he would-have

been acquitted but for counsel’s ineffective performance, rather than applying the correct rule

that he must show “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland, 466 U.S. at 694. This contention

is wholly meritless. In a single sentence of its opinion, the Kentucky Court of Appeals stated,

“[n]or has it been shown Christopher would have been acquitted with more information or more

notice.” Koteras, 589 S/W.3d at 547. The sentence is contained in a discussion applying the law

to already-stated facts; there is no citation to authority.

In comparison, the Kentucky Court of Appeals fully articulated and/or applied the proper

Strickland standard for prejudice four separate times, making clear its proper understanding of

the governing standard. See id. at 541, 542, 545, 550. The United States Supreme Court has

cautioned that when reviewing a state court decision, “readiness to attribute error is inconsistent

with the presumption that state courts know and follow the law,” because § 2254(d) requires

“state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 531 U.S. 19, 24

(2002). Therefore, if the state court otherwise expresses a proper understanding of the applicable

federal standard, an offhanded articulation of that rule which does not fully encapsulate the

proper standard with all of its nuances intact does not justify a conclusion that the state court

misapplied federal law. Cf. Holland v. Jackson, 542 U.S. 649, 654-55 (2004) (“Last was the

statement that respondent had ‘failed to carry his burden of proving that the outcome of the trial

would probably have been different but for those errors, We have held that such use of the

unadorned word ‘probably’ is permissible shorthand when the complete Strickland standard is

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elsewhere recited.”) (cleaned up). The Kentucky Court of Appeals stated, understood, and

applied the proper standard for prejudice under Strickland, and this claim will be denied.

D. Adequate Notice of the Charges Against Koteras

On direct appeal, counsel did not assert a claim that the indictment failed to give Koteras

adequate notice of the charge's against Him, an omission he contends amounted to ineffective

assistance. [R. 1-1, pp. 36-39]. Koteras cursorily raised this argument during collateral review

proceedings before the trial court; however, the trial court noted the argument but declined to

rule on it specifically when it denied his RCr 11.42 motion. Koteras, 589 S.W.3d at 547. The

Kentucky Court of Appeals therefore declined to address the argument on appeal, concluding

that it was procedurally barred because Koteras “did not give the trial court an opportunity to

correct any oversight by seeking reconsideration of the motion to vacate or moving for specific

findings per CR 52.01 and CR 54.02(2).” Id.

Although the Court finds no error in the Kentucky Court of Appeals’ determination that

Koteras’s claim was procedurally defaulted, the Court observes that this claim is substantively

meritless even under de novo review. As noted above, even if trial counsel did fail to obtain a

description of the specific facts of each of the eight counts of abuse, that circumstance could not

and did not prejudice Koteras’s defense, which was in no way dependent upon such

particularized information. Koteras did not contend that he was not present during any of the

eight episodes where he was alone with Amanda; instead, the defense theory was that no sexual

abuse transpired during any of those encounters. Koteras’s repeated and conclusory assertion of

prejudice fails to provide concrete support for the conclusion that, had the information been

obtained at counsel’s insistence, there is “a reasonable probability that ... the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694. Appellate counsel did not

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act unreasonably in declining to pursue a meritless claim. Accordingly, this habeas claim will

also be'denied.

E. Introduction of Emergency Order of Protection

Prior to their divorce, Koteras’s then-wife Jennifer obtained an Emergency Order of

Protection (“EPO”) against him. Koteras, 2014 WL 5410233, at *1. In the EPO application,

Jennifer stated that during and after an argument she became “scared to death” that he “will hurt

[her]”; she locked herself in her room as Koteras pounded on the door demanding the keys to her

car; and that Koteras “did something to [her] sexually that [shef didn’t want.” Id. During trial,

Koteras agreed to the admission of the EPO but was successful in excluding any reference within

it to unwanted sexual activity. Id. at *3^1. However, during direct and cross-examination,

Koteras repeatedly denied any physical aggression towards Jennifer. Id. In light of these denials,

the prosecution then sought to introduce Jennifer’s sexual allegations in the EPO. Id. The trial

court rejected the request, but consistent with the wording in the EPO defense counsel and the

trial court agreed that the prosecution “could simply mention Koteras did something ‘physically’

that Jennifer did not want without ever mentioning any alleged sexual aspect.” Id. at *4.-00

direct appeal, Koteras challenged the admission of the EPO as unduly prejudicial, but the

Kentucky Supreme Court found the admission was neither improper nor prejudicial. Id.

Having failed to persuade on the substantive evidentiary claim, in collateral review

proceedings, Koteras attempted to recast the claim as one of ineffective assistance, complaining

that his attorneys failed to prevent the EPO’s introduction. The trial court rejected that argument,

noting, “[bjecause the admission of evidence of domestic violence was consistent with the trial

strategy agreed to by the defendant and counsel, there are no grounds within this issue to argue

ineffective assistance of counsel.” [R. 1-4, pp. 6-7]. Koteras appealed, but not on this ground.

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Magistrate Judge Stinnett’s Recommendation therefore properly concluded that Koteras

procedurally defaulted this claim. See [R. 27, pp. 13-14], In his reply brief, Koteras argued only

that his default should be excused to avoid a fundamental miscarriage of justice. [R. 22, pp. 1112]. In his objections, he abandons that argument in favor of two entirely new ones, contending

for 'the first time that he exhausted this claim by presenting it in his motion for discretionary

review to the Kentucky Supreme Court and that his claim of actual innocence should excuse any

default. [R. 32, p. 23-25]. But 28 U.S.C. § 636 “permits de novo review of a magistrate judge’s

decision by the district court if timely objections are filed; absent compelling reasons, it does not

generally allow parties to “raise new^argumentsj 'oFjssues ~that were not presented to the

magistrate.” Moore v. United States Dep’t ofAgric., No. 17-5363, 2018 WL 1612299, at *2 (6th

Cir. Jan. 31, 2018) (citing United States v. Waters, 158 F.3d 933, 936 (6th Cir. 1998)); Marshall

v. Chater, 75 F.3d 1421, 1426-27 (10th Cir. 1996) (“[Ijssues raised for the first time in

objections to magistrate judge’s report and recommendation are deemed waived.”). The Court

finds no reason to engage with Koteras’s ever-changing justifications for his failure to fully

present his claims to the Kentucky courts.

This is particularly so because Magistrate Judge Stinnett’s Recommendation also

correctly noted that Koteras’s claim is substantively meritless. [R. 27, p. 14], Koteras’s trial

defense was that his bipolar disorder and history of psychological, verbal, and physical abuse, for

which, there was ample evidence, motivated Amanda to fabricate allegations of sexual abuse in

an effort to avoid further contact with him. The EPO was part of that narrative, and with

counsel’s requested exclusion from it any reference to unwanted sexual contact, the EPO was not

unduly prejudicial. Koteras failed to establish either deficient performance or resulting prejudice,

particularly under the deferential lens required by Strickland.

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F. Koteras’s Out-of-Court Statements to Police

During an interview with police, Koteras told them Amanda was lying when she said that

he had repeatedly sexually abused her. Koteras, 589 S.W.3d at 547. The prosecution crossexamined Koteras about these out-of-court statements at trial. Id. Koteras contends that his

counsel rendered ineffective performance by not objecting to this line of questioning, asserting

that it is improper to ask a witness whether another witness’s testimony at trial is truthful. [R. 11, p. 45]. The Kentucky Court of Appeals quickly dispatched this claim, noting that Koteras’s

whole theory of the case was that Amanda was lying, and that the prohibition against asking a

witness about another’s truthfulness is limited to the other witness’s testimony at trial. Koteras,

589 S.W.3d at 547—48. Magistrate Judge Stinnett’s Recommendation correctly concluded that

this claim is entirely meritless; counsel is not ineffective for declining to object to questions that

are not improper. [R. 27, pp. 14-15]. Koteras has failed to point to any evidently applicable

Supreme Court precedent undermining the conclusions of the Kentucky courts on this point.

In his objections, Koteras again pivots to a new argument, claiming entitlement to de

novo review because, he contends, the Kentucky Court of Appeals applied the wrong standard.

[R. 32, p. 27], This argument is both procedurally barred and substantively meritless. As noted

above, a party may not make new arguments for the first, time in objections to a magistrate’s

recommendation.. Waters, 158 F.3d at 936. In his petition, Koteras asserted entitlement to relief

under the deferential standard required by Section 2254(d), see [R. 1-1, p. 48], and he may not

now claim entitlement to a different standard of review at this late stage of proceedings. Further,

the Kentucky Court of Appeals applied the proper standard when assessing this claim; again,

Koteras’s claim of ineffective assistance was necessarily without merit if the objection that he

claims counsel should have made was itself without merit. Coley v. Bagley, 706 F.3d 741, 752

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(6th Cir. 2013). For these reasons, the Court overrules these objections and denies relief on this

ground.

G. Prosecution’s Closing Argument

During its closing argument, the prosecution stated that Amanda showed great courage

by testifying to her father’s abuse in open court and in front of the jury. Koteras, 589 S.W.3d at

548. Koteras contends that the prosecutor’s comments amounted to improper “vouching” and

“bolstering” of Amanda’s credibility. [R. 1, p. 23]. “Vouching” occurs “when a prosecutor

supports the credibility of a witness by indicating a personal belief in the witness’s credibility”;

“Bolstering” occurs “when the prosecutor implies that the witness’s testimony is corroborated by

evidence known to the government but not known to the jury.” United States v. Francis, 170

F.3d 546, 550, 551 (6th Cir. 1999). Koteras contends his counsel was ineffective when they did

not object to the prosecutor’s closing argument during trial. [R. 1, p. 23].

The Kentucky Court of Appeals rejected Koteras’s bolstering argument, noting that the

prosecution never referenced Amanda’s testimony at all, and did not state or even suggest his

belief that it was truthful. Koteras, 589 S.W.3d at 548. Instead, the prosecution’s comments

related to her state of mind, and were offered in response to Koteras’s own closing argument

which focused upon Amanda’s delay in reporting the abuse and claimed that her testimony was

provided by and rehearsed with the prosecutor and victim’s advocate. Id. Because the

prosecution’s comments were not improper, the court held that Koteras’s counsel were not

ineffective for not objecting to them. Id. Koteras made his vouching argument to the trial court,

but, unlike his bolstering argument, failed to further pursue it before the Kentucky Court of

Appeals. See [R. 27, p. 16 n.9].

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Magistrate Judge Stinnett’s Recommendation therefore concluded that this Court need

not reach Koteras’s vouching argument notwithstanding the respondent’s failure to assert the

defense of procedural default with respect to it. See [R. 27, p. 16 n.9]. Not so. See Cf. Smith v.

Moore, 415 F. App’x 624, 628 (6th Cir. 2011) (“A respondent failing to raise his procedural

default challenge waives it. ‘The state may waive a defense,’ including procedural default, ‘by

not asserting it.’”) (citing Baze v. Parker, 371 F.3d 310, 320 (6th Cir. 2004)).

However, as noted in Magistrate Judge Stinnett’s Recommendation, the Kentucky courts

did not fail to reasonably apply Supreme Court precedent when rejecting the bolstering and

vouching claims on the merits. [R. 27, p. 17] (“Stated differently, the state court concluded that

there was no bolstering, therefore there was no bolstering objection to make, therefore counsel

made no error, and therefore the first prong of Strickland was not met.”). As with Koteras’s

previous claim, the Jessamine Circuit Court and the Kentucky Court of Appeals reasonably

concluded that trial counsel were not ineffective for deciding not to object where Koteras failed

to show that the prosecutor’s comments amounted to vouching or bolstering in the first place.

See [R. 11-2, p. 141]; Koteras, 589 S.W.3d at 548. Koteras contends that the Kentucky courts

somehow applied the wrong standard by focusing on the underlying prosecution statements, but

determining the viability of an objection is fundamental to assessing Strickland’s deficient

performance prong, and his objection is therefore fundamentally misguided. See Koteras, 589

S.W.3d at 548 (“No defense objection was necessary as there was no error.”). Accordingly, the

Kentucky courts’ conclusion that counsel did not provide ineffective assistance in this respect

was not an unreasonable application of Strickland.

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H. Failure to Call Character Witnesses

Koteras next claims counsel was ineffective for failing to call two character witnesses on

his behalf, Julie Evans and Eugene LaPierre. [R. 1-1, p. 55]. Evans was Koteras’s therapist for

approximately five years before his trial; LaPierre was a co-worker who knew Koteras for a

comparable period of time. Id. Counsel testified that Koteras did not give him the names of either

of these acquaintances to testify as character witnesses at his trial. Koteras, 589 S.W.3d at 549.

The only character witness called at trial on Koteras’s behalf was his then-girlfriend, Carolyn

Flynn. Id.

The Kentucky trial and appellate courts both stated that in cases such as this, the value of

a character witness is largely lost once the prosecutor asks if positive character testimony would

change if the acquaintance knew about the defendant’s child sexual abuse, regardless of whether

the witness answers yea or nay. Id. The Kentucky Court of Appeals further noted that: (1)

Koteras stated generically in his RCr 11.42 motion that he gave counsel the names of

unidentified “coworkers and supervisors”; (2) did not identify Andrews and LaPierre by name in

his RCr 11.42 motion, but only did so at the evidentiary hearing; and (3) passed on repeated

opportunities to clearly state that he gave their names to counsel before trial. Id. Thus, the

Kentucky Court of Appeals’ opinion suggests possible procedural and substantive grounds for

denial. Procedurally, it held that Koteras did not adhere to RCr 11.42(2) because he “did not

claim with specificity he asked counsel to contact Evans. and_ LaPierre and. offer them-as_

character witnesses.” Id. Substantively, the court stated that “in post-conviction counsel’s

supplemental pleading, Evans, LaPierre and others are mentioned, but counsel avoids saying

[Koteras] identified any particular character witness to counsel prior to trial.” Id.

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On review, this Court concurs with Magistrate Judge Stinnett’s reasoning denying this

claim: Pfocedufally, as Magistrate" Judge Stinnett found; the Kentucky Court-of Appeals invoked

RCr 11.42(2) to reject Koteras’s claim for failure to specify the specific basis for his claim. See

[R. 27, p. 18-19] (citing Walker v. Martin, 562 U.S. 307, 315 (2011) (“A federal habeas court

will not review a claim rejected by a state court if the decision of the state court rests on a state

law ground that is independent of the federal question and adequate to support the judgment.”)

(cleaned up). Koteras simply ignored the Kentucky Court of Appeals’ determination in his

briefing. See [R. 1-1, p. 56]; [R.’22, p. 16]. Substantively, as Magistrate Judge Stinnett further

found, the Kentucky court noted that “cross-examination would have reiterated damaging aspects

of the case and diluted any value the defense would have hoped to achieve by calling Evans and

LaPierre.” Koteras, 589 S.W.3d at 549. Even if Koteras had established that he told his counsel

before trial that these persons could provide favorable character testimony, the likely damaging

effects of cross-examination upon them undermines any argument for either deficient

performance by counsel or resulting prejudice arising from a decision not to call them to the

stand. Given the wide latitude afforded to trial counsel’s strategic decisions regarding witness

selection, cf. Railey v. Webb, 540 F. 3d 393, 415 (6th Cir. 2008), Koteras has failed to overcome

the strong presumption of reasonableness required by Strickland, 562 U.S. at 105.

I. Koteras’s Willingness to Submit to a Polygraph Examination

First during a police interview and later in pretrial proceedings, Koteras requested that a

polygraph examination be conducted. [R. 1-1, p. 58]. No such test was ever performed. Id. On

the morning of trial, defense counsel requested that evidence be admitted showing that Koteras

had volunteered to take a polygraph test, but the trial court denied the motion. Id. Koteras

contends that while the results of polygraph tests are themselves inadmissible, evidence of a

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willingness to take a polygraph test may be admissible under certain circumstances, Id. at 59.

Koteras claims that his counsels’ failure to effect admission of his willingness to submit to a

polygraph examination amounts to ineffective assistance. Id. Koteras raised this claim in his RCr

11.42 motion but did not appeal the denial of it. Koteras blames that omission upon the asserted

incompetence Of his appointed cbllaferal review appellate counsel (as opposed to, say, the

conscious abandonment of tenuous claims in favor of more plausible contentions). See [R. 22,

pp. 18-19],

Magistrate Judge Stinnett’s Recommendation correctly indicates that this claim is

procedurally defaulted in light of Koteras’s acknowledged failure to pursue it on direct appeal

from the denial of relief on collateral review. [R. 27, p. 20] (“A person convicted in a Kentucky

state court procedurally defaults his claim if he fails to appeal from a trial court order denying

post-conviction relief.”) (citing Wesselman v. Seabold, 834 F.2d 99, 101-02 (6th Cir. 1987)). In

his objections, Koteras again asserts for the first time that he raised his concerns in his motion for

discretionary review to the Kentucky Supreme Court, and that his actual innocence of the crimes

for which he was convicted warrants substantive review of his claims. [R. 32, pp. 39-40]. But

Koteras . did not, in fact, raise this aspect of his ineffective assistance claim in his motion for

discretionary review. See [R. 22-1, pp. 15-16], And Koteras has made no effort to demonstrate

his actual innocence, a determination that must be established by actual evidence, not mere

proclamation.

The claim is also substantively baseless. As noted above, Koteras himself acknowledges

that counsel did try to introduce evidence of his offer to take a polygraph examination, only to be

rebuffed by the trial court. [R. 1-1, p. 58]. Koteras could have challenged the trial court’s ruling

on appeal, but he did not. Short of openly disregarding the trial court’s order, Koteras does not

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explain what more his counsel could have done. Further, Magistrate Judge Stinnett’s

'Recommendation notes that “the Kentucky Supreme Court has explicitly held that a defendant’s

offer to submit to a polygraph examination is inadmissible when used to bolster the defendant’s

credibility, as Koteras intended to use it here.” [R. 27, p. 20 n.12] (citing Hartley v.

Commonwealth, 2011 WL 2112393, at *6 (Ky. 2011)). Koteras disparages the Recommendation

for relying on an unpublished decision that he characterizes as “non-controlling.” [R. 32, p. 40].

But Hartley is a decision of the Kentucky Supreme Court, and it cites two published and onpoint cases. Hartley, 2011 WL 2112393,' at *5 (“This Court' ‘has held repeatedly and

consistently’ that polygraph evidence is inadmissible, including ‘mention of the-taking of a

polygraph, the purpose of which is to bolster the claim of credibility or lack of credibility of a

particular witness or defendant.’”) (citing Ice v. Commonwealth, 661 S.W.2d 671, 675 (Ky.

1984); Morgan v. Commonwealth, 809 S.W.2d 704, 706 (Ky. 1991)); see also Bowe v.

Commonwealth, No. 2019-SC-0368-MR, 2020 WL 7395167, at *6, n.24 (Ky. Dec. 17, 2020)

(“The rule that evidence of polygraph examinations and results is inadmissible is well-settled and

long-standing. Similarly, a party’s offer to take a polygraph or refusal to take a polygraph is

inadmissible. We exclude such statements whether the person taking, offering to take, or refusing

to take the examination was the accused or another witness.”) (citing Stalling v. Commonwealth,

556 S.W.2d 4 (Ky. 1977) (excluding evidence of refusal to take polygraph test); Penn v.

Commonwealth, 417 S.W.2d 258 (Ky. 1967) (excluding evidence of offer to take polygraph

test)). Koteras’s counsel was not ineffective for declining to pursue further the introduction of

evidence that the trial court had already (and appropriately) rejected.

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J. Cumulative Error

In his final claim, Koteras contends that his right to due process was violated by “the

combined prejudicial effect” of his attorneys’ asserted ineffectiveness and numerous instances of

claimed misconduct by the prosecution. [R. 1-1, p. 62], Koteras pressed some version of this

argument before the Kentucky courts, but he acknowledges that he did not persist with it on

direct appeal from the denial of relief upon collateral review. [R. 22, p. 19]. Independent of

questions regarding procedural default, Magistrate Judge Stinnett’s Recommendation correctly

notes that claims of “cumulative error” are not cognizable on federal habeas review. [R. 27, p.

21] (citing Rice v. Boyd, No. 22-5413, 2022 WL 16835874, at *5 (6th Cir. Oct. 25. 20221: see....

also Loiraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002) (“The Supreme Court has not held that

distinct constitutional claims can be cumulated to grant habeas relief.”). Koteras does not object

to this determination. [R. 32, p. 41], In any event, this claim affords no basis for federal habeas

relief.

IV.

Koteras’s Motion for Evidentiary Hearing [R. 25]

Magistrate Judge Stinnett’s Recommendation concluded that an evidentiary hearing

pursuant to 28 U.S.C. § 2254(e) was not necessary, both because the trial court held an

evidentiary hearing during RCr 11.42 proceedings that effectively developed the factual basis for

Koteras’s claims, and because Koteras had not demonstrated the necessity for such a hearing

under the standards set forth in Cullen v. Pinholster, 563 U.S. 170, 186 (2011). [R. 27, pp. 2122], The Court concurs with this analysis. Cf. Sawyer v. Hojbauer, 299 F.3d 605, 610 (6th Cir.

2002) (noting that an evidentiary hearing is only appropriate if the habeas petitioner “alleges

sufficient grounds for release, relevant facts are in dispute, and the state courts did not hold a full

and fair evidentiary hearing”).

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Additional considerations weigh in favor of denial of Koteras’s motion for an evidentiary

hearing. Koteras’s motion dedicated a -scant-few paragraphs to generic argument that- an

evidentiary hearing was appropriate, stating that he wished to use it to solicit testimony from

witnesses “of why claims were abandoned, and counsel failed to request the trial court enter a

ruling on LAAC.” [R. 25, pp. 1-2, 7]. But the balance of Koteras’s motion is dedicated

' exclusively to new substantive arguments, long after briefing had closed, that his asserted

procedural default of numerous claims should be excused on grounds of cause and prejudice.

See [R. 25, pp. 2-7]. That strong emphasis indicates that the primary purpose of Koteras’s

motion was to relitigate an issue that had already been briefed thoroughly.

This conclusion is buttressed by the timing of Koteras’s motion. Briefing on Koteras’s

petition concluded in August 2020 upon the filing of his reply. See [R. 22]. In that reply, Koteras

expressly asserted that an evidentiary hearing was needed in this Court to assess the viability of

his assertion that any procedural default of his claims could be overcome due to the neglect,

oversight, or intentional choices made by his appellate counsel. Id. at 11-12. While no specific

time frame is mandated for filing a Rule 8 motion seeking an evidentiary hearing, Koteras did

not file his motion until nearly two years later in June 2022. See [R. 25]. Because the Warden

urged in his July 2020 response to the petition that nearly half of Koteras’s claims were

procedurally defaulted, if Koteras intended to seek an evidentiary hearing on the issue to rebut

those arguments, he was obliged to move for one promptly. Koteras offered no explanation for

the extensive delay.

For these reasons, Magistrate Judge Stinnett properly denied Koteras’s motion for an

evidentiary hearing and issued his Report and Recommendation based on the fully developed

record.

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V.

Certificate of Appealability

Finally, the Recommendation concluded that a certificate of appealability (“COA”)

should not issue with respect to any claim. [R. 27, pp. 23-24]. Interestingly, although Koteras

objects to all but one of the Recommendation’s conclusions regarding the disposition of his

claims, he objects to only some, but not ail, particulars of its COA determination. See [R. 32, pp.

42-43].

Upon independent review, this Court concludes that a COA should not issue. A

certificate of appealability may issue if the petitioner “has made a. substantial showing of the

denial of a institutional right.” 28 U.S.C. § J2253(c)(2).The Court must indicate which specific

issues satisfy the “substantial showing” requirement. See 28 U.S.C. § 2253(c)(3); Bradley v.

Birkett, 156 F. App’x 771, 774 (6th Cir. 2005) (noting requirement of “individualized assessment

as to each of [the petitioner’s] claims”). For claims assessed on their merits, this standard is met

if the petitioner demonstrates that “reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

If a claim is rejected on procedural grounds, the petitioner must show both 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.” Id. at 484—85. For the reasons set forth in the Recommendation and in this

opinion, reasonable jurists would not find debatable the denial of habeas relief on the substantive

and procedural grounds discussed.

Accordingly, the Court ORDERS as follows:

1.

The Court ADOPTS the Magistrate Judge’s Recommended Disposition [R. 27],

as supplemented herein, as the opinion of the Court;

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2.

Christopher Koteras’s Petition for a Writ of Habeas Corpus [R. 1] is DENIED;

3.

The Court DENIES a Certificate of Appealability; and

4.

The Court will enter Judgment contemporaneously with this Order.

This 29th day of September, 2023.

(j^euwu.

■rat CLARIA HORN BOOM,

> UNITED STATES DISTRICT COURT JUDGE

EASTERN AND WESTERN DISTRICTS OF

*

KENTUCKY

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Additional material

from this filing is

available in the

Clerk's Office.