Petition for Writ of Certiorari — Seabold v. Vincent

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Suprene Court of the Anited States

WILLIAM SEABOLD, WARDEN,

Petitioner

versus

DEAN VINCENT,

Respondent

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

ALBERT B. CHANDLER III

Attorney General of Kentucky

KENT T. a dy /—

Assistant Attorney General

Counsel of Record

Criminal Appellate Division

Office of the Attorney General

1024 Capital Center Drive

Frankfort, KY 40601-8204

(502) 696-5342

QUESTIONS PRESENTED

WHETHER THE COURT OF APPEALS’

UNEXPLAINED DECISION IN LILLY V.

VIRGINIA, 527 U.S. 116 (1999),

RETROACTIVELY ON HABEAS REVIEW OF

THIS CASE WHICH BECAME FINAL FOUR

YEARS EARLIER IN 1995 VIOLATES 28 U.S.C.

SECTION 2254(d), AND WILLIAMS V.

TAYLOR, 529 U.S. 362 (2000)?

DOES WILLIAMS V. UNITED STATES, 512 U.S.

594 (1994) AUTHORIZE FEDERAL HABEAS

COURTS TO REQUIRE RETROACTIVE

APPLICATION OF THE FEDERAL RULES OF

EVIDENCE IN STATE COURT TRIALS?

PARTIES TO THE PROCEEDING IN THE

COURT WHOSE JUDGMENT IS UNDER REVIEW

The parties to the proceeding in the Court whose

judgment is under review are: (1) the Commonwealth of

Kentucky; and (2) Dean Vincent.

TABLE OF CONTENTS

ge eee i

PARTIES TO THE PROCEEDING IN THE COURT

WHOSE JUDGMENT IS UNDER REVIEW........... ii

ERED a bn 6-6-4 saa Verdes seccaseces iii

pe ty cs Ie Vv

i ood ih bob sd des beskscesessens 2

i heb LGSioe bak bees be cdcleesssasea 3

CONSTITUTIONAL PROVISION INVOLVED ....... 3

UUMNTE GA MOUS AMEE oo ccc cccisescsveccess +

REASONS FOR GRANTING THE WRIT ............ 9

I. THE PUBLISHED PANEL DECISION IN

VINCENT V. SEABOLD, 226 F.3D 681 (6™ CIR.

2000) CONFLICTS WITH (1) WILLIAMS V.

TAYLOR, 120 S.Ct. 1495 (2000) (CLEARLY

ESTABLISHED FEDERAL LAW, AS

DETERMINED BY THE SUPREME COURT OF

THE UNITED STATES “REFERS TO THE

HOLDINGS, AS OPPOSED TO THE DICTA, OF

THIS COURT’S DECISIONS AS OF THE TIME

OF THE RELEVANT STATE-COURT

DECISION”) AND (2) 28 U.S.C. §2254(d)(1) IN

GRANTING FEDERAL HABEAS CORPUS

RELIEF TO VINCENT BASED ON LILLY V.

VIRGINIA, 527 U.S. 116 (1999), WHICH WAS

DECIDED APPROXIMATELY FOUR YEARS

AFTER VINCENT’S CASE BECAME FINAL

ON DIRECT REVIEW IN THE KENTUCKY

ee EP te Pe OT ee re ee ee Pees 9

II]. THE PUBLISHED PANEL DECISION IN VINCENT

V. SEABOLD, 226 F.3D 681 (6™ CIR. 2000)

MISAPPLIES WILLIAMSON V. UNITED STATES,

512 U.S. 594 (1994) IN MANDATING

COMPLIANCE WITH AN INTERPRETATION OF

A FEDERAL RULE OF EVIDENCE IN

CONTRAVENTION OF ESTELLE V. MCGUIRE,

502 U.S. 62 (1991) AND FED. RULE EVID. 101. 11

CAE ve) cb cecakapadekeekouened racers 13

TABLE OF AUTHORITIES

CAS ITED:

Vincent v. Parke, 942 F.2d 989 (6" Cir. 1991)...... passim

Vincent v. Seabold, 226 F.3d 681 (6" Cir. 2000) .... passim

Brecht v. Abrahamson, 507 U.S. 619 (1993) ........... 6

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ........ 12

Gilliam v. Mitchell, 179 F.3d 990, 994 (6" Cir. 1999) ... 10

Johnson v. Commonwealth, No. 93-SC-168-MR, Slip Op

(Ky. S.Ct. June 8, 1995); Apx. 80-81............ 2, 8, 12

Kinser v. Commonwealth, Ky.,

Re & Fo ts. ys BR Pree mr ror 2.4.5.7

Lilly v. Virginia, 527 U.S. 116 (1999) .......... 9, 10, 11

Neuman v. Rivers, 125 F.3d 315, 319-320 (6" Cir. 1997) 10

Stoner v. Sowders, 997 F.2d 209 (6th Cir. 1993) ........ 6

Williams v. Taylor, 120 S.Ct. 1495 (2000)......... 10, 11

Williamson v. United States, 114 S.Ct. 2431 (1994) . 12, 13

Williamson v. United States, 512 U.S. 594 (1994) .... 9, 11

FEDERAL STATUTES CITED:

1S UDG. SO OO 6 vo ove c dasespehaeeuabans 6

Be OBA Gee so cuest eens eS i ckdeca pa eeenes us 3

20 UB Geen o Weekes cuts anvesieenee 10 ,11, 12

United States Supreme Court Rule 13 ............ oc. w

Federal Rule of Evidence 101 .............cccceees 12

Federal Rule of Evidence 804(b)(3) ................. 12

UNITED STATES CONSTITUTION CITED:

Fifth Amendment to the United States Constitution ...... 3

TA A

ik t PPV Terre eee ee eee 12

IN THE

Supreme Court of the Hnited States

WILLIAM SEABOLD, WARDEN,

Petitioner

versus

DEAN VINCENT,

Respondent

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Comes the Commonwealth of Kentucky, by counsel,

and submits this brief on petition for a writ of certiorari.

OPINION BELOW

The petitioner seeks certiorari review of the published

Sixth Circuit panel decision in Vincent v. Seabold, 226 F.3d

681 (6" Cir. 2000), rehearing and suggestion for rehearing en

banc denied December 12, 2000.

The procedural history leading to the United States

Sixth Circuit Court of Appeals Opinion is as follows.

Vincent’s convictions for murder and related offenses were

affirmed by the Kentucky Supreme Court in Kinser v.

Commonwealth, Ky., 741 S.W.2d 648 (1987). In Vincent v.

Parke, 942 F.2d 989 (6* Cir. 1991), two members of the three

judge panel decidmg Vincent’s appeal determined that

federal habeas corpus relief should be granted and that

Vincent should be afforded a new trial. After retrial in the

Kentucky courts, pursuant to which Vincent was again found

guilty, the Kentucky Supreme Court affirmed in an

unpublished opinion m Johnson v. Commonwealth, No. 93-

SC-168-MR, Slip Opinion (Ky. S.Ct. June 8, 1995). The

United States Magistrate J adge recommended dismissal of

Vincent’s subsequent fedeal habeas corpus petition in

Findings of Fact, Conclusions of Law and Recommendation

entered on August 5, 1998 im Civil Action No. 1:97CV-91-M

in the United States District Court for the Western District of

Kentucky at Bowling Green. In an order entered on

September 29, 1998 in Civil Action No. 1:97CV-91-M in the

United States District Court for the Western District of

Kentucky at Bowling Green, the United States District Court

adopted the Magistrate’s Findings of Fact and Conclusions of

Law and dismissed Vincent’s federal habeas corpus petition.

JURISDICTION .

The petitioner seeks to invoke the jurisdiction of this

Court pursuant to 28 U.S.C. §1254. The petitioner seeks

certiorari review of a United States Court of Appeals Opinion

decided September 13, 2000, granting federal habeas corpus

relief to an mmate in state custody.

Rehearing and suggestion for rehearing en banc were

denied by the Sixth Circuit on December 12, 2000. This

petition is, therefore, timely pursuant to United States

Supreme Court Rule 13.

CONSTITUTIONAL PROVISION INVOLVED

The case mvolves the scope of the Confrontation

Clause embodied in the Fifth Amendment to the United

States Constitution, as defined by federal law clearly

established by the United States Supreme Court when

Vincent’s case became final on direct review m the Kentucky

Courts im 1995.

STATEMENT OF THE CASE

In 1987, Vincent’s convictions on charges of first

degree burglary, first degree robbery, and wanton murder

were affirmed by the Kentucky Supreme Court in Kinser v.

Commonwealth, Ky., 741 S.W.2d 648 (1987). The opinion

affirmed his respective sentences of twenty years, twenty

years, and life. The convictions and sentences resulted from

a jury trial in state court.

In Vincent v. Parke, 942 F.2d 989 (6th Cir. 1991), two

members of the three judge panel deciding Vincent's previous

appeal from the denial of federal habeas corpus relief

determimed that Vincent should be afforded a new trial. The

reversal was based on the followmg:

Detective Gaddie, referring to his earlier

conversation with Kinser's sister, Eva Kinser,

regarding her brother's participation in the

charged crimes, confirmed that Eva Kinser had

informed him that “Leroy [Kinser] told [her]

that he was with Ronnie and Dean during the

ere ee, ee oe "

crime but he stood in the doorway and was too ©

shocked to move because of what Ronnie

[Johnson] and Dean [Vincent] were doing to

Hayes[.]”

During the original trial, Ms. Eva Kinser had denied making

the foregoing statement attributed to her by Detective Gaddie.

Kinser v. Commonwealth, Ky., 741 S.W.2d 648, 652 (1987).

The two justices voting to reverse in Vincent v. Parke

admitted that “the independent evidence introduced at trial

agaimst Vincent was substantial”. Id., at 992. Nevertheless,

those justices felt that they could not “conclude beyond a

reasonable doubt that the probable impact of Kinser’s

Statement to his sister was henwdned” Id., at 993.

The dissenting opimion also employed a harmless error

analysis. Id., 993-996. The dissenting opinion concluded in

relevant part as follows:

Because the prosecution presented overwhelming

evidence of Vincent's participation m the crimes,

any error regarding the admission of Kinser’s two

out-of-court statements was certainly harmless as

the district court properly concluded. Id., at 996.

In Stoner v. Sowders, 997 F.2d 209 (6th Cir. 1993), the Court

recognized that a less stringent harmless error analysis would

be employed were Vincent v. Parke, supra, to be decided

subsequent to the United States Supreme Court's opinion m

Brecht v. Abrahamson, 507 U.S. 619 (1993). Moreover, 18

U.S.C. Section 2254 (d) was amended in 1996 to provide for

a more deferential standard of review for constitutional error

in state court proceedings than previously had been embodied

in that statute.

In Vincent's retrial, the Commonwealth did not

introduce the statement Ms. Eva Kinser denied making to

Detective Gaddie concerning what Leroy Kinser was asserted

to have said to her about Vincent. In Vincent's retrial m state

court, Detective Gaddie did testify from a redacted transcript

of Leroy Kinser's taped statement to Detective Gaddie. (TE

X 1468-1480; APX 185-197).

Kinser was a co-defendant at Vincent's original trial.

At the conclusion of the guilt phase evidence agamst Kinser,

Vincent, and another co-defendant, Ronald Johnson, the jury

retired to deliberate the fate of Vincent and Johnson. After

the jury returned with the verdicts and sentences against

Vincent and Johnson, the jury then heard testimony

concerning Kinser’s taped statement, and retired to deliberate

his fate. Kinser v. Commonwealth, supra, at 650 -.651.

Kinser refused to testify at Vincent's retrial. After

relevant records searches, appointment of counsel for Kinser,

and a hearing, Kinser was found to have no Fifth Amendment

rights. He thereafter was without dispute declared to be

unavailable as a witness. (TE II 256-287; APX 262-278).

Kinser's statement was extensively edited for

presentation at Vincent's retrial. (TE X 1462, 1467-1480;

APX 185-197; TE X prior 1985 trial, 52-79; APX 206-237).

Kinser’s complete, unredacted statement - as well as

questioning of Detective Gaddie thereon - is part of the

record of the original trial. (TE X prior 1985 trial, 49-86;

APX 207-244). In his statement, Kinser admitted to his

participation in the robbery and the burglary. He manifested

no reluctance to see Hayes killed. In that statement, Kinser

admits his participation im the robbery and the burglary from

start to finish. He admits he knew Vincent was armed with a

billy club. (TE X prior 1985 trial 59-60; APX 208-209). He

admits to entering the Hayes home and “looking around to

see if I could find anything”. (TE X prior 1985 trial 72; APX

230). He admits he received $40 from the robbery. (TE X 70

prior 1985 trial 75; APX 233). Indeed, when Det. Gaddie

premises a question by stating “After you all robbed Harold

Hayes and killed him and you went on up to Judy Seabolt’s”,

Kinser makes no attempt whatsoever to distance himself from

the murder. (TE X prior 1985 trial 76-77; APX 234-235).

In an unpublished opmion rendered on June 8, 1995,

the Kentucky Supreme Court affirmed Vincent’s convictions

and sentences on retrial. [Johnson v. Commonwealth, No.

93-SC-168-MR, Slip Op. (Ky. Sup. Ct. June 8, 1995); APX

70, 153]. The jury m Vincent’s second trial found him guilty

of first degree burglary, first degree robbery, and wanton

murder. (TR III 378-385, APX 305). Vincent was sentenced

to respective sentences of fifteen years, fifteen years, and life.

(TR Ill 419-421; APX 97).

The Kentucky Supreme Court did, however, remand

the case to the Butler Circuit Court to run Vincent’s fifteen

year sentences concurrently with his life sentence, rather than

consecutively. On remand, the Butler Circuit Court amended

its Judgment accordingly.

Vincent thereafter sought federal habeas relief, which

was denied. In an Opinion recommended for full-text

publication a panel of the United States Sixth Circuit Court

of Appeals reverses and remands. Rehearing and suggestion

for rehearing en banc were denied on December 12, 2000.

REASONS FOR GRANTING THE WRIT

I. THE PANEL DECISION IN VINCENT V.

SEABOLD, 226 F.3D 681 (6™ CIR. 2000)

CONFLICTS WITH (1) WILLIAMS V.

TAYLOR, 120 S.Ct. 1495 (2000) (CLEARLY

ESTABLISHED FEDERAL LAW, AS

DETERMINED BY THE SUPREME

COURT OF THE UNITED STATES

“REFERS TO THE HOLDINGS, AS

OPPOSED TO THE DICTA, OF THIS

COURT’S DECISIONS AS OF THE TIME

OF THE RELEVANT STATE-COURT

DECISION”) AND (2) 28 U.S.C. §2254(d)(1)

IN GRANTING FEDERAL HABEAS

CORPUS RELIEF TO A PETITIONER

BASED ON THE PLURALITY OPINION

IN LILLY V. VIRGINIA, 527 U.S. 116

(1999), WHICH WAS DECIDED

APPROXIMATELY FOUR YEARS AFTER

VINCENT’S CASE BECAME FINAL ON

DIRECT REVIEW IN THE KENTUCKY

COURTS.

The theoretical underpmning of the panel decision in

Vincent v. Seabold is the panel’s application of two United

States Supreme Court decisions: Williamson v. United

States, 512 U.S. 594 (1994) and Lilly v. Virginia, 527 U.S.

116 (1999). (Vincent v. Seabold, Slip Opimion at pp. 8-13).

The panel decision m Vincent v. Seabold violates the

directive in Williams v. Taylor, 120 S.Ct. 1495 (2000) that

the reference in 28 U.S.C. §2254(d) to clearly established

federal law, as determined by the Supreme Court of the

United States, refers “to the holdmgs, as opposed to dicta, of

this Court’s decisions as of the time of the relevant state-

court decision.” Id., 120 S.Ct. at 1523 (Justice O’Connor

delivering the opinion as to Part II) (Emphasis added). The

relevant state court decision in Vincent’s case is the

Kentucky Supreme Court Opmion on direct appeal, which

was rendered on June 8, 1995. (Apx. 70, 153). Despite this,

and despite recognizing that subsequent United States Sixth

Circuit Court of Appeals Opmions in Gilliam v. Mitchell,

179 F.3d 990, 994 (6" Cir. 1999) and Neuman v. Rivers, 125

F.3d 315, 319-320 (6 Cir. 1997) “held that the hearsay

exception for statements against penal interest constitutes a

firmly rooted exception for purposes of Confrontation Clause

analysis”, the panel decision in Vincent v. Seabold applies a

plurality opinion, Lilly v. Virginia, 527 U.S. 116 (1999),

which was rendered four years after the Kentucky Supreme

Court Opinion on direct review in Vincent’s case.

Noting that im Lilly, the “Supreme Court recently

ended a circuit split by holding that accomplices’ confessions

that inculpate a criminal defendant are not within a firmly

rooted hearsay exception to the hearsay rule as that concept

has been defined in our Confrontation Clause jurisprudence,”

the panel decision proceeds to apply the Lilly decision to

Vincent’s case. (Vincent v. Seabold, Slip Opimion, pp. 10-

12). This directly contravenes the directive in Williams v.

Taylor that clearly established federal law, as determined by

the Supreme Court of the United States, “refers to the

holdings, as opposed to the dicta, of this Court’s decisions as

of the time of the relevant state-court decision.” (Id., 120

S.Ct. at 1523) (Emphasis added).

Moreover, Lilly was before the United States Supreme

Court on a grant of certiorari review. It was not a federal

habeas corpus proceeding; therefore, 28 U.S.C. §2254(d) had

no application im the Lilly case.

Il. THE PUBLISHED PANEL DECISION IN

VINCENT V. SEABOLD, 226 F.3D 681 (6™ CIR.

2000) MISAPPLIES WILLIAMSON V. UNITED

STATES, 512 U.S. 594 (1994) IN MANDATING

COMPLIANCE WITH AN INTERPRETATION

OF A FEDERAL RULE OF EVIDENCE IN

CONTRAVENTION OF ESTELLE V.

MCGUIRE, 502 U.S. 62 (1991) AND FED.

RULE EVID. 101.

The theoretical underpinning of the panel decision in

Vincent v. Seabold is the panel’s application of two United

States Supreme Court decisions: Williamson v. United

States, 512 U.S. 594 (1994) and Lilly v. Virginia, 527 U.S.

116 (1999). (Vincent v. Seabold, Slip Opinion at pp. 8-13).

The specific issue addressed in Williamson v. United

States, 114 S.Ct. 2431 (1994) was “the scope of the hearsay

exception for statements agaist penal mterest. Fed. Rule

Evid. 804(b)(3).” (id., 114 S.Ct. at 2433). Williamson v.

United States is clearly established federal law pursuant to 28

U.S.C. §2254(d) and Williams v. Taylor, supra, only with

respect to the interpretation of Federal Rule of Evidence

804(b)(3). The Federal Rules of Evidence apply to the

federal courts. Fed. Rule Evid. 101. The state courts are not

required to adhere to the Federal Rules of Evidence. Indeed,

the United States Supreme Court has repeatedly held that a

federal habeas corpus court may not overrule a state supreme

court’s interpretation of a matter of state law. Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991).

The Kentucky Supreme Court applied Kentucky Rule

of Evidence (KRE) 804(b)(3) to Vincent’s case. [Johnson v.

Commonwealth, No. 93-SC-168-MR, Slip Opmion (Ky. Sup.

Ct. June 8, 1995); Apx. 80-81].

Williamson v. United States may be clearly established

federal iaw with respect to the mterpretation of Federal Rule

of Evidence 804(b)(3), but it is irrelevant to federal habeas

corpus review of Dean Vincent’s case because Federal Rule

of Evidence 804(b)(3) is not binding on the state courts. The

published panel decision in Vincent \. Seabold nevertheless

erroneously concludes that the adjudication of Vincent’s

claim in the Kentucky courts:

. .. Was “contrary to” the clearly established

federal law set forth in Williamson in that the

trial court, faced with facts materially

indistinguishabie from those in Williamson,

reached a conclusion opposite to that reached

by Williamson; we think it also was an

“unreasonable application” of the governing

legal standard established in Williamson. (Slip

Opinion, at pp. 12-13).

The Sixth Circuit panel reached this conclusion despite the

fact that Williamson v. United States, supra, was not a

Confrontation Clause case. The holding in the Williamson

Case was premised on an interpretation of the Federal Rules

of Evidence, and did not apply the Federal Rules of Evidence

to state court proceedings.

CONCLUSION

WHEREFORE. certiorari review should be granted.

Respectfully submitted,

ALBERT B. CHANDLER III

Counsel of Record

Criminal Appellate Division

Office of the Attorney General

1024 Capital Center Drive

Frankfort, Kentucky 40601-8204

(502) 696-5342

Nee nn nnn ene aEiinsnnianann nanan ‘ ea: - yea ears

IN THE

Supreme Court of the Hnited States

WILLIAM SEABOLD, WARDEN,

Petitioner

versus

DEAN VINCENT,

Respondent

APPENDIX TO CERTIORARI PETITION

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0317P (6th Cir.)

File Name: 00a0317p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DEAN VINCENT,

Petitioner-Appellant,

e No. 98-6457

WILLIAM SEABOLD, Warden,

Respondent-Appellee.

Appeal from the United States District Court

for the Western District of Kentucky at Bowling Green.

No. 97-0009 1—Joseph H. McKinley, Jr., District Judge.

Argued: August 10, 2000

Decided and Filed: September 13, 2000

Before: KEITH, COLE, and GILMAN, Circuit Judges.

COUNSEL

ARGUED: Oleh R. Tustaniwsky, DEPARTMENT OF

PUBLIC ADVOCACY, Frankfort, Kentucky, for Appellant.

Kent T. Young, OFFICE OF THE ATTORNEY GENERAL,

CRIMINAL APPELLATE DIVISION, Frankfort, Kentucky,

for Appellee. ON BRIEF: Oleh R. Tustaniwsky,

DEPARTMENT OF PUBLIC ADVOCACY, Frankfort,

Kentucky, for Appellant. Kent T. Young, OFFICE OF THE

2 Vincent v. Seabold No. 98-6457

ATTORNEY GENERAL, CRIMINAL APPELLATE

DIVISION, Frankfort, Kentucky, for Appellee.

OPINION

R. GUY COLE, JR., Circuit Judge. In August 1985, a jury

in Butler County, Kentucky, convicted Petitioner-Appellant

Dean Vincent, along with co-defendants Leroy Kinser and

Ronald Johnson, of first degree robbery, first degree b

and murder. It was established at trial that on June 15, 1983,

the defendants broke into the home of Harold Hayes, beat

him, bound him with duct tape, and robbed the home, leaving

Hayes to die of biunt-force injuries to the head. All three

defendants were sentenced to twenty years’ imprisonment on

both the robbery and the burglary convictions and life

imprisonment on the murder convictions. After the Kentucky

Supreme Court affirmed their convictions on direct appeal in

Kinser v. Commonwealth, 741 S.W.2d 684 (Ky. 1987),

Vincent and Johnson filed petitions for writs of habeas corpus

pursuant to 28 U.S.C. § 2254. The district court denied each

petition, but this Court reversed, concluding that Vincent and

Johnson were entitled to habeas relief on the ground that their

Sixth Amendment rights to confrontation had been violated.

See Vincent v. Parke, 942 F.2d 989, 993 (6th Cir. 1991);

Johnson v. Parks, 955 F.2d 44, 1992 WL 27027 (6th Cir. Feb.

14, 1992). We remanded the case for retrial, and on February

14, 1993, a jury found Vincent and Johnson guilty of first

degree robbery, first degree burglary, and wanton murder.

Vincent was sentenced to fifteen years’ imprisonment on both

the robbery and burglary convictions and life imprisonment

on the murder conviction; the sentences were to run

consecutively. The Kentucky S e Court affirmed

Vincent’s convictions but the case to the Butler

Circuit Court for resentencing because Kentucky law requires

that the fifteen year sentences were to run concurrently with

the life sentence. On April 22, 1997, Vincent filed a second

petition for writ of habeas corpus, asserting, inter alia, that

various testimony violated his Sixth Amendment rights under

No. 98-6457 Vincent v. Seabold 3

the Confrontation Clause. Upon recommendation of the

magistrate judge, the district court denied Vincent’s habeas

petition. This appeal follows.

For the reasons that follow, we REVERSE the district

court’s judgment and REMAND to the district court with

instructions to grant the petition for habeas corpus unless,

within a reasonable time, the Commonwealth elects to afford

Vincent a new trial.

DISCUSSION

I. Standard of Review

We review a district court’s legal conclusions in a habeas

proceeding de novo and its factual findings for clear error.

See Lucas v. O'Dea, 179 F.3d 412, 416 (6th Cir. 1999).

Because Vincent filed his habeas petition on April 22, 1997,

review of the state court’s decision is governed by the

standards set forth in the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521

U.S. 320, 336 (1997); Harpster v. Ohio, 128 F.3d 322, 326

(6th Cir. 1997). As amended, 28 U.S.C. § 2254(d) provides:

(d) An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that

was adjudicated on the merits in State court unless the

adjudication of the claim--

(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 upon an

unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). In Williams v. Taylor, 120 S. Ct. 1495

(2000), the Supreme Court recently explained that an

Me ie a ga EE GR a NR

4 Vincent v. Seabold No. 98-6457

“unreasonable application” of clearly established federal law

established by Supreme Court precedent occurs if “the state

court identifies the correct governing legal rule from [the

Supreme Court’s] cases but unreasonably applies it to the

facts of the particular state prisoner’s case.” See id. at 1520.

A state court decision can be “contrary to” clearly established

federal law if the state court arrives at a conclusion site

to that reached by the Supreme Court on a question of law or

confronts facts that are materially indistinguishable from a

relevant Supreme Court precedent and arrives at an opposite

result. See Machacek v. Hofbauer, 213 F.3d 947, 952-53 (6th

Cir. May 26, 2000) (citing Williams, 120 S. Ct. at 1519).

II. Confrontation Clause

Vincent first asserts that the trial court violated his Sixth

Amendment right to confrontation when it allowed Detective

Gaddie of the Kentucky State Police to testify as to post-

arrest, custodial hearsay statements made by former co-

defendant Kinser. Prior to the retrial, Vincent filed a motion

to exclude Kinser’s confession as violative of the

Confrontation Clause, but the trial court denied Vincent’s

motion, holding that the confession would be admissible in

the event that Kinser refused to testify. The trial court relied

upon Taylor v. Commonwealti:. 821 S.W.2d 72 (Ky. 1991)

(holding that a co-defendant’s confession was admissible

under exception to hearsay rule for statement against penal

interest by unavailable declarant, notwithstanding the fact that

the confession implicated the defendant, because the co-

defendant admitted to having been an active participant in the

crime), cert. denied, 502 U.S. 1100 (1992), overruled on

other grounds, St. Clair v. Roark, 10 S.W.3d 482 (Ky. 1999)).

Before Kinser was called to the stand, the court conducted

an in-chambers conference with all counsel present to

‘Kinser, who was convicted along with Vincent and Johnson in the first

trial, was not on retrial.

;

No. 98-6457 Vincent v.Seabold §

determine if Kinser would testify voluntarily. As Kinser had

been tried and convicted and his sentence had been affirmed,

it was determined that Kinser possessed no Fifth Amendment

right that would allow him to refuse to testify. The court

decided that it would allow the Commonwealth to call Kinser

to the stand. Once on the stand, Kinser refused to take the

oath and would not testify, — the fact that the court

advised him he possessed no Fifth Amendment right against

self-incrimination and that he would be held in contempt.

The court recessed for the day, and the next morning

appointed counsel for Kinser, confirming once again that

according to the federal court clerk and the Kentucky

ae Court clerk, Kinser could invoke no right under the

Fifth Amendment that would enable him to refuse to testify.

After Kinser again refused to testify, the court ordered him in

contempt and held him to be an “unavailable witness” under

Ky. R. Evid. 804(a) (recognizing the unavailability of a

witness in situation where declarant “persists in refusing to

testify concerning the subject matter of the declarant’s

Statement despite an order of the court to do so”).

Thereafter, the Commonwealth announced its intention to

call Detective Gaddie to the stand to testify as to the post-

arrest, custodial statements made by Kinser. Before allowing

Gaddie to introduce Kinser’s confession, the court held

another in-chambers conference to discuss Gaddie’s intended

testimony concerning the substance of Kinser’s confession

and the taking of his statements. Gaddie explained that

Kinser had signed a properly executed Miranda rights form

and that Kinser’s attorney, Gary Logsdon, had advised him to

give a statement. The court also reviewed the transcript from

a 1984 suppression hearing in which Logsdon testified that he

and Kinser had discussed at length Kinser’s option of making

a statement. Logsdon testified that Kinser “sincerely desired

to make a statement,” understood his Miranda rights, was not

under duress or compulsion, and understood that no

inducements or promises had been made by the police or

prosecutor. Defense counsel argued that Kinser’s confession

was not a statement against penal interest under hearsay

exception Ky. R. Evid. 804(b)(3) because it sought to

6 Vincent v. Seabold No. 98-6457

inculpate Vincent and Johnson while minimizing Kinser’s

own participation in the crime. However, the court

determined that Kinser’s confession was sufficiently self-

inculpatory insofar as he indicated that he was an active and

willing participant in the crime and made no effort to prevent

or diminish the severity of the blows Vincent and Johnson

gave to Hayes. The court then allowed Gaddie to testify as to

Kinser’s confession, stating, “the presumption of unreliability

has been overcome by the evidence that we’ve heard and. . .

the confession, to the extent that it is relevant to the matters

charged, is admissible as evidence.”

Detective Gaddie then testified that on August 29, 1983,

Kinser made a statement to Gaddie at the State Police Post in

Bowling Green, Kentucky. Kinser told Gaddie the following:

He, Vincent, and Johnson broke into the home of Harold

Hayes, finding Hayes asleep on the couch. Vincent

approached Hayes and struck him twice in the head with a

billy club and began to search the house for money. Johnson

kicked Hayes and then began to use duct tape to constrain

him. Vincent returned to the room and began interrogating

Hayes about the whereabouts of some money that defendants

believed was in the house. Vincent again struck Hayes with

the club three or four more times before continuing his search.

All the while, Kinser was searching the house for the money.

Vincent then yelled to the others that “he’d found it” and

retumed to the room with a sack of money. Johnson then

taped shut Hayes’s eyes and mouth, and the three defendants

left the house.” Vincent asserts that Gaddie’s testimony

violated his Sixth Amendment right to confrontation. The

Sixth Amendment provides that in “all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted with

witnesses against him.” IJdaho v. Wright, 497 U.S. 805, 813

(1990) (citing U.S. Const. amend. Vb. In Idaho v. Wright,

the Supreme Court recognized:

2it was established at trial that although Hayes died of blunt force

injuries to the head, he would have died of suffocation resulting from his

broken nose and the swelling of his mouth and tongue caused by the duct

tape.

No. 98-6457 Vincent v. Seabold 7

From the earliest days of our Confrontation Clause

jurisprudence, we have consistently held that the Clause

does not necessarily prohibit the admission of hearsay

statements against a criminal defendant, even though the

admission of such statements might be thought to violate

the literal terms of the Clause.

[S]tatements admitted under a “firmly rooted” hearsay

exception are so trustworthy that adversarial testing

would add little to their reliability.

Idaho v. Wright, 497 U.S. at 813, 821 (internal citations

omitted). The Court held that if the hearsay statement falls

within a firmly rooted exception, it does not run afoul of the

Confrontation Clause. Jd. Those statements that do not fall

within a traditional exception, but fall within the residual, or

catch-all, hearsay exception, also may be admitted without

implicating the Confrontation Clause if Me grercaent shows

that “particularized guarantees of trustworthiness” make the

statements so trustworthy that cross-examination of the

hearsay declarant would add little to the reliability of the

statements. Jd. See also Ohio v. Roberts, 448 U.S. 56, 65-66

(1980) (holding that hearsay statements do not violate the

Confrontation Clause when the prosecution shows that the

declarant is unavailable and that the statement bears adequate

“indicia of reliability”) (citing Barber v. Page, 390 U.S. 719

(1968) (holding that the government must show the

unavailability of a witness before it may introduce less

reliable accounts of witness’s statements at trial)).

Rule 804 of the Federal Rule of Evidence’ sets forth certain

exceptions to the hearsay rule that apply when the declarant

is an unavailable witness. Rule 804 states that,

“[{ujnavailability as a witness includes situations in which the

declarant . . . persists in refusing to testify concerning the

SRule 804 of the Kentucky Rules of Evidence mirrors the language of

the Fed. R. Evid. 804.

8 Vincent v. Seabold No. 98-6457

subject matter of the declarant’s statement despite an order of

the court to do so... .” FED. R. Evi. 804(a)(2). The Rule

provides that if the declarant is in fact unavailable as a

witness, statements against interest are not excluded by the

hearsay | tule. FED. R. EviD. 804(b). A “statement against

interest” is defined as follows:

A statement which was at the time of its making so far

contrary to the declarant’s uniary or proprietary

interest, or so far tended to subject the declarant to civil

or criminal liability, or to render invalid a claim by the

declarant against another, that a reasonable in the

declarant’s position would not have made the statement

unless believing it to be true. A statement tending to

expose the declarant to criminal liability and offered to

excul the accused is not admissible unless

co rating circumstances clearly indicate the

trustworthiness of the statement.

FED. R. EviD. 804(b)(3). Here, neither party challenges the

trial court’s determination that Kinser was in fact an

unavailable witness under Rule 804. Vincent argues,

however, that Gaddie’s testimony does not fall within the

hearsay exception because Kinser’s confession was not “a

statement against interest” in that Kinser essentially sought to

distance himself from the murder.

In Williamson v. United States, 512 U.S. 594 (1994), the

Supreme Court defined the scope of Rule 804(b)\(3) when the

declarant’s statements both subject the declarant to criminal

liability and — the jetendies. In aps a the

prosecution sought to admit hearsay statements made by the

declarant, who been arrested after police found lene

amounts of cocaine in the car he was driving and who made

custodial statements to a DEA that indicated that the

cocaine belonged to the defendant. See id. at 596-97.

Williamson first considered the question of what is meant by

a “statement” in light of the principle that “Rule 804(b)(3) is

founded on the commonsense notion that reasonable people,

even reasonable people who are not especially honest, tend

No. 98-6457 Vincent v.Seabold 9

not to make self-in statements unless they believe

them to be true.” /d. at 599. Reasoning that this principle

mandates a narrow definition of “statement” as “a single

declaration or remark,” rather than a broad definition as “a

report or narrative,” the Court held:

In our view, the most faithful reading of Rule 804(b)(3)

is that it does not allow admission of

non-self-inculpatory statements, even if they are made

within a broader narrative that is generally

self-inculpatory. The district court may not just assume

for purposes of Rule 804(b)(3) that a statement is

self-inculpatory because it is part of a fuller confession,

and this is especially true when the statement implicates

_ someone else.

Id. at 599, 600-01; see also United States v. Jinadu, 98 F.3d

239, 246 (6th Cir. 1996) (holding that a court must evaluate

the admissibility of each declaration or remark within the

confession when determining whether those statements are

admissible under the hearsay exception for statements agai

penal interest); United States v. Canan, 48 F.3d 954 (6

1995) (“[W]hen ruling upon a narrative’s admissibility under

[Rule 804(b)\(3)], a court must break it down and determine

the separate admissibility of each single declaration or

remark.”) (internal quotation marks and citation omitted).

Williamson went on to explain:

There are many circumstanves in which Rule 804(b)(3)

does allow the admission of statements that inculpate a

criminal defendant. Even the confessions of arrested

accomplices may be admissible if they are truly self-

inculpatory, rather than merely attempts to shift blame

or curry favor.

Id. at 603 ( is added). Thus, the proper Rule 804(b)(3)

analysis Williamson requires examining the

circumstances in which the statements are made in order to

determine whether they are self-inculpatory or self-serving.

The proper inquiry is “whether the statement was sufficiently

against the declarant’s penal interest ‘that a reasonable person

10 Vincent v. Seabold No. 98-6457

in the declarant’s position would not have made the statement

unless believing it to be true,’ and this question can only be

answered in light of all the surrounding circumstances.” Jd.

at a (quoting FED. R. Evip. 804(b)(3)) (footmote

omitted).

Because the declarant in Williamson implicated the

defendant while in police custody and after already having

confessed to the crime, the Court concluded that naming the

defendant did little to implicate the declarant any further and

was probably an effort to secure a lesser punishment through

cooperation. See id. at 604 (opinion of O' Connor, J., in

which Scalia, J. joined); id. at 607-08 (opinion of Ginsburg,

J.,in which Blackmun, Stevens, and Souter, J.J., joined). See

also United States v. Boyce, 849 F.2d 833, 836 (3d Cir. 1988)

(holding that a statement given in custody was not reliable

because circumstances indicated that it may have been

“motivated by a desire to curry favor”). However, because

the lower court failed to conduct the appropriate analysis,

breaking down each remark sentence by sentence, Williamson

remanded the case without reaching the issue of whether the

Confrontation Clause rendered the statements inadmissible,

expressly declining to determine whether the hearsay

exception for statements against interest is “firmly rooted” for

tation Clause purposes. See id. at 605.

Although the Sixth Circuit has held that the hearsay

exception for statements against penal interest constitutes a

firmly rooted exception for purposes of Confrontation Clause

analysis, see Gilliam v. Mitchell, 179 F.3d 990, 994 (6th Cir.

1999); Neuman v. Rivers, 125 F.3d 315, 319-320 (6th Cir.

1997), the Supreme Court ~— ended a circuit split by

holding that “accomplices’ confessions that inculpate a

criminal defendant are not within a firmly rooted exception to

the hearsay rule as that concept has been defined in our

Confrontation Clause jurisprudence.” Lilly v. Virginia, 527

U.S. 116, 134 (1999) (emphasis added). oe 4 noted that,

“[{t}his, of course, does not mean . . . that the ion

Clause imposes a blanket ban on the government’s use of

nontestifying accomplice statements that incriminate a

No. 98-6457 Vincent v. Seabold 11

defendant. Rather, it simply means that the Government must

satisfy the second prong of the Ohio v. Roberts, 448 U.S. 56

(1980), test in order to introduce such statements.” Jd.

(internal quotation marks and alterations omitted). Lilly also

recognized:

Nothing in our prior opinions, however, suggests that

appellate courts should defer to lower courts’

determinations regarding whether a hearsay statement has

particularized guarantees of trustworthiness. To the

contrary, those opinions indicate that we have assumed,

as with other fact-intensive, mixed questions of

constitutional law, that independent review is necessary

to maintain control of, and to clarify, the legal principles

governing the factual circumstances necessary to satisfy

the protections of the Bill of Rights.

The Commonwealth correctly notes that the presumption

of unreliability that attaches to codefendants’ confessions

may be rebutted. We have held, in fact, that any inherent

unreliability that accompanies co-conspirator statements

made during the course and in furtherance of the

conspiracy is per se rebutted by the circumstances giving

rise to the long history of admitting such statements.

Nonetheless, the historical underpinnings of the

Confrontation Clause and the sweep of our prior

confrontation cases offer one cogent reminder: It is

highly unlikely that the presumptive unreliability that

attaches to accomplices’ confessions that shift or spread

blame can be effectively rebutted when the statements

- are given under conditions that implicate the core

concerns of the old ex parte affidavit practice--that is,

when the government is involved in the statements’

production, and when the statements describe past events

and have not been subjected to adversarial testing.

Id. at 136-37 (internal quotation marks, citations, and

alterations omitted).

12 Vincent v. Seabold No. 98-6457

Thus, both Williamson and Lilly instruct that the statements

made by Kinser are presumptively unreliable, and to rebut this

presumption, we must evaluate the “indicia of reliability”

associated with each individual remark or declaration made

by Kinser. nd, <deerepennanyaanin os sescherenin ig

unlikely that Kinser’s post-arrest, custodial statements,

clearly shift the brunt of the blame to defendants Vincent and

Johnson, effectively can be rebutted. See id.

Here, Gaddie’s testimony reveals that while Kinser’s

overall confession was self-inculpatory insofar as it placed

him at the scene of the crime as a participant, many of the

statements were not individually self-inculpatory, as is

required under Williamson, and in fact were wholly self-

reery mr implicating both Vincent and Johnson. Kinser

told

[Vincent] hit [Hayes] with a billy club. ... Ronnie

Johnson was over there by Mr. Hayes. He had ah, kicked

him .... [I] at the time, was back in the kitchen, around

the table. [I] was lookin’ around to—to see what [T] could

find . Deano [Vincent] came out of the back room

and he hollered to Mr. Hayes, “where is it at” and Mr.

Hayes said there wasn’t any—“there’s not any more” and

Deano went over there and hit him three or four more

time with that billy club. ... Ronnie [Johnson] put the

tape on Mr. Hayes, on his eyes and on his

The trial court held that Kinser’s statements were self-

willing participant in the crime and made no effort to prevent

or diminish the severity of the blows Vincent and Johnson

gave to Hayes. ud: Wa keno Weak Mead men

court, agreed. We, disagree. All of these

statements attempt to distance Kinser from the murder and

minimize his icipation in the crime; Kinser clearly was

ing to shift the blame away from himself onto

Vincent and Johnson. Finding otherwise was “contrary to”

the clearly established federal set forth in Williamson in

that the trial court, faced with facts materially

No. 98-6457 Vincent v. Seabold 13

indistinguishable from those in Williamson, reached a

conclusion opposite to that reached by Williamson; we think

eS eee ee ” of the govezning

standard established in iamson. See 28 U.S.C.

§ d); see also Williams, 120 S. Ct. at 1519 (explaining

that “contrary to” and “unreasonable application” do in fact

have independent meanings). Despite the fact that the

admission of Gaddie’s testimony clearly violated Vincent’s

Sixth Amendment confrontation rights, we recognize that we

may grant Vincent’s habeas petition only if we determine that

the error was not harmless. See Wright, 497 U.S. at 823-24;

Hill v. Brigano, 199 F.3d 833, 846-47 (6th Cir. 1999). To

make such a determination, we must decide that the trial

court’s error “had substantial and injurious effect or influence

in determining the jury’s verdict.” See Nevers, 169 F.3d at

371 (holding that the Brecht v. Abrahamson, 507 U.S. 619,

623 (1993), standard continues to apply on habeas review

even after the amendments to AEDPA). Gaddie’s testimony,

alone, might not have had a “substantial and injurious effect”

on the outcome of the case, given the other evidence against

Vincent established at trial. However, as we discuss below in

Part B, Gaddie’s testimony was not the only improper

testimony adduced at Vincent’s trial.

Vincent asserts that the trial court also violated his Sixth

——— right to confrontation when it yo aay

Seabolt Shephard to testify that a year or two followi e

crime, Defendant Johnson told her that he had not murdered

Hayes, but that it was Vincent and Kinser. Shephard was the

14 Vincent v. Seabold No. 98-6457

two years after the date of the crime, she had a conversation

with Ronnie Johnson. Shephard testified, “Well, he was my

sister’s boyfriend, so I asked him did he kill Harold Hayes

and he said no, I didn’t kill him, Leroy [Kinser] and Dean

[Vincent] did.”

Following this statement, the trial court held another in-

chambers conference, allowing defense counsel to put its

objections on record and move for a mistrial on the ground

that the testimony violated Bruton v. United States, 391 U.S.

123 (1968), which held:

A defendant may be prejudiced by the admission in

evidence against a co-defendant of a statement or

confession made by that co-defendant. This prejudice

cannot be dispelled by cross-examination if the

co-defendant does not take the stand. Limiting

isetractions to the jury miey not in fact ereee the

prejudice.

Id. at 132 (internal quotation marks and citation omitted).*

The trial court overruled the motion and gave the jury a

limiting instruction, finding that the error was not of a

sufficient magnitude such that it had a likelihood of affecting

the outcome of the trial. The trial court instructed:

With regards to the testimony that the young lady gave

just prior to lunch, that testimony was contrary to the

Rules of Evidence. Ah, the question was , but the

answer was given before the Court d stop her or

anyone else could stop her, is in clear violation of our

“Johnson did not testify at the retrial, though Vincent did. Incidentally,

it was a Bruton violation during the first trial that resulted in the grant of

Vincent’s habeas petition and retrial, which is the subject of the present

habeas action. See Vincent v. Parke, 942 F.2d 989 (6th Cir. 1991). In the

first trial, Detective Gaddie testified that Kinser’ s sister, Eva Mae Kinser,

told Gaddie that Kinser told her that Vincent committed the murder. This

= ee nn tp as tavern ie neg ga violated the

Vincent’s Sixth Amendment rights and warranted a new

trial. See id at 992.

No. 98-6457 Vincent v. Seabold 15

Rules of Evidence. It has no evidentiary value. It cannot

> res as evidence. - has no credi ie

sho y y you in every , form

and fashion. br « scent A py ete he

statement was never made.

The Kentucky Supreme Court found that the trial court’s

admonition cured any defect.

The magistrate judge’ determined, and the district court

agreed, that the sdeien ion of Shephard’s testimony did not

amount to reversible error, relying in part on its earlier

determination that Gaddie’s testimony aeons Kinser’s

statements properly was admitted, and thus, Shephard’s

improper statements had but a very slight effect on the jury.

As we have determined, however, the admission of Gaddie’s

testimony was improper and violated Vincent’s Confrontation

Clause rights. Because Shephard’s testimony also was

improper under Bruton, we hold that the errors, taken

together, “had [a] substantial and injurious effect or influence

in veer na jury’s verdict.” Brecht, 507 U.S. at 638.

We find that the inbedection of Kinser’s statements through

Gaddie’s testimony, together with Johnson’s statement

through Shephard’s testimony, rendered the government’s

case against Vincent significantly more persuasive. We,

therefore, conditionally GRANT Vincent’s petition for writ of

habeas corpus, subject to the Commonwealth retrying him

within a reasonable period of time. :

Ill. Severance and Speedy Trial

Vincent also argues on appeal that the trial court meropely

denied his motion to sever his retrial from that of co-

defendant Johnson’s and that his Sixth Amendment right to

a speedy trial was violated in that 16’ months elapsed from

the time this Court ordered that Vincent be retried within a

reasonable time in Vincent v. Parke, 942 F.2d 989 (6th Cir.

1991), until the start of Vincent’s retrial. Neither of these

assignments of error has any merit, and because we have

granted Vincent’s habeas petition on Confrontation Clause

16 Vincent v. Seabold No. 98-6457

grounds, we need not address his remaining arguments in any

great detail.

With regard to his motion for severance, Vincent failed to

demonstrate to the trial court “a strong — of factually

specific and compelling prejudice that [would] mislead or

confuse the jury.” United States v. Cobleigh, 75 F.3d 242,

248 (6th Cir. 1996) (quoting United States v. Vinson, 606

F.2d 149, 154 (6th Cir. 1979)) (internal quotation marks

omitted). With regard to Vincent’s claim that he was denied

a speedy trial under the Sixth Amendment, none of the delay

was caused by the government, there was no showing of bad

faith or attempts by the government to seek a tactical

advantage, and Vincent wholly failed to identify any specific

way in which his defense was prejudiced as a result of the

delay. See Barker v. Wingo, 407 U.S. 514 (1972).

Accordingly, these assignments of error are without merit.

CONCLUSION

For the reasons set forth in Parts ILA and ILB above, we

REVERSE the district court’s denial of Vincent’s petition for

writ of habeas corpus and REMAND to the district court with

instructions to grant the petition for habeas corpus unless,

within a reasonable time, the Commonwealth elects to afford

Vincent a new trial.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT BOWLING GREEN

CIVIL ACTION NO. 1:97CV-91-M

DEAN VINCENT

PETITIONER

VS.

WILLIAM SEABOLD, Warden RESPONDENT

ORDER

The above matter having been referred to the

United States Magistrate Judge who has filed his

Findings of Fact, Conclusions of Law, and

Recommendations, objections having been filed thereto,

and the Court having considered the same, adopts the

Findings of Fact and Conclusions of Law as set forth in

the report submitted by the United States Magistrate

Judge.

IT IS HEREBY ORDERED that respondent’s

motion for summary judgment is GRANTED and the

petition for writ of habeas corpus is DISMISSED, with

prejudice.

IT IS FURTHER ORDERED that petitioner’s

motion for leave to amend is DENIED.

This _28" day of September, 1998

/S/ oseph H. McKinley, Ir.,

JOSEPH H. MCKINLEY, JR., JUDGE

UNITED STATES DISTRICT COURT

Copies to: Hon. Oleh R. Tustaniwsky

Hon. Kent T. Young

Magistrate Judge Goebel

ENTERED

9/29/98

JEFFREY A. APPERSON, CLERK

BY: LYNNE LYONS

DEPUTY CLERK

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT BOWLING GREEN

CIVIL ACTION NO. 1:97CV-91-M

DEAN VINCENT PETITIONER

VS.

WILLIAM SEABOLD, Warden _ RESPONDENT

FINDINGS OF FACT, CONCLUSIONS OF LAW

AND RECOMMENDATION

BA R

The petitioner, by counsel, filed this petition for

writ of habeas corpus pursuant to 28 U.S.C. Section

2254 (DN 2). An order was entered on May 26, 1998

(DN 15) referring this matter to the undersigned United

States Magistrate Judge for the disposition of all

pretrial matters pursuant to 28 U.S.C. Section

636(b)(1)(A) and for the filing of proposed findings of

fact, conclusions of law and recommendations for the

disposition of all other matters pursuant to 28 U.S.C.

Section 636(b)(1)(B). Respondent has filed a motion for

summary judgment (DN 9) and petitioner filed a

response as well as, alternatively, a motion for leave to

amend (DN 14). This matter is now ready for

consideration by the undersigned.

FINDINGS OF FACT

Dean Vincent (“Vincent”) and two co-defendants,

Leroy Kinser (“Kinser”) and Ronald Johnson

(“Johnson”), were indicted by the Butler Circuit Court

on August 12, 1983, for first degree burglary, first

degree robbery, capitol {sic} murder, and criminal

conspiracy relating to the burglary, robbery and death

of Butler County resident, Harold Hayes. The

defendants’ trial began on August 12, 1985 and

concluded on August 23, 1985. The jury found all three

defendants guilty of first degree robbery, first degree

burglary and murder. The defendants were sentenced

to twenty years imprisonment on both the robbery and

the burglary convictions and life imprisonment on the

murder convictions. Their convictions were affirmed

by the Kentucky Supreme Court on direct appeal.

Kinser v. Commonwealth, 741 S.W.2d 684 (Ky. 1987).

Thereafter, Vincent and Johnson each filed a petition

for writ of habeas corpus pursuant to 28 U.S.C. Section

2254. The district court denied each petition.

However, the United States Court of Appeals for the

Sixth Circuit concluded that Vincent and Johnson were

entitled to habeas relief on the ground that their Sixth

Amendment right to confrontation was abridged.

Vincent v. Parke, 942 F.2d 989, 993 (6" Cir. 1991);

Johnson v. Parke, 1992 WL 27027 (6" Cir.). The Sixth

Circuit Court of Appeals reversed and remanded the

cases to the district court with instructions to take such

action in the event the Commonwealth does not grant

Vincent and Johnson a new trial within a reasonable

time. |

The retrial of Vincent and Johnson began on

February 8, 1993. On February 14, 1993 the jury found

both Vincent and Johnson guilty of wanton murder,

first degree burglary and first degree robbery. The jury

fixed Vincent's punishment at life imprisonment for

murder, fifteen years imprisonment for first degree

burglary, fifteen years imprisonment for first degree

robbery and recommended that the sentences run

consecutively. On February 14, 1993 the trial court

sentenced Vincent to life imprisonment and two fifteen

year sentences to run consecutively with each other and

with any other sentence. Vincent’s convictions were

affirmed but the Kentucky Supreme Court did remand

the case to the Butler Circuit Court with instructions to

resentence Vincent because Kentucky law directs that

his fifteen year sentences run concurrently with his life

sentence rather than consecutively.

CONCLUSIONS OF LAW

Since Vincent filed his petition for writ of habeas

corpus on April 22, 1997 review of the state court’s

decisions :- governed by the standards established by

the Antiterrorism and Effective Death Penalty Act of

1996, Pub.L.No. 104-132, 110 Stat. 1214 (1996)

(‘AEDPA”). Lindh v. Murphy, __ U.S. ___, 117 S.Ct.

2059 (1997). Chapter 153 of the AEDPA, amended Title

28 of the United States Code and altered the standard

of review that a federal court must employ when

deciding whether to grant a writ of habeas corpus. As

amended, 28 U.S.C. §2254(d) provides as follows:

“An application for a writ of habeas

corpus on behalf of a person in custody

pursuant to the judgment of a State court

shall not be granted with respect to any

claim that was adjudicated on the merits

in State court proceedings unless the

adjudication of the claim—

(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

facts in light of the evidence presented in

the State court proceeding.”

Vincent contends that the trial court violated his

Sixth Amendment right to confront an adverse witness

when it allowed the admission of hearsay statements

by anon-testifying accomplice as substantive evidence

against him.

Kinser was the first witness called by the

Commonwealth during the retrial of Vincent and

Johnson (TE 256). Kinser refused to take the oath and

would not testify in spite of being advised by the Court

that his refusal may constitute contempt (TE 264-265).

During a conference in chambers, the trial court

announced that it would appoint counsel for Kinser.

Because of the late hour the court recessed the trial for

the day.

The following morning, in chambers, appointed

counsel for Kinser confirmed that there is no privilege

that prevented Kinser from testifying (TE 272-273). The

trial court announced for the record that the federal

court clerk and the clerk of the Supreme Court of

Kentucky confirmed that Kinser had no pending

actions related to his criminal conviction (TE 273). The

trial court then found that Kinser did not have Fifth

Amendment rights to invoke with respect to testifying

during the pending criminal trial and ordered Kinser to

submit to oath and testify (TE 273-274). When Kinser

refused to testify the trial court found him to be in

contempt and held him to be an unavailable witness

under Ky.R.Evid. 804(a) (TE 274-278).

Following this ruling the Commonwealth

announced its intent to introduce the statement of

Kinser through Detective Gaddie. Counsel for both

defendants tendered a motion to preclude the use of

Kinser’s statement on the grounds that it does not fall

under the Ky.Evid.R. 804(b)(3) statement against

interest exception to the hearsay rule (TR 344-345; TE

280-282). The court indicated that when the

Commonwealth sought to introduce the confession it

would conduct an in-camera hearing (TE 282).

The Commonwealth moved to introduce

Kinser’s confession during the testimony of its last

witness, Detective Gaddie (TE 1402). In chambers, the

court heard extensive oral argument and testimony by

Detective Gaddie concerning the taking of Kinser’s

statement (TE 1402-1453). The trial court also

considered the transcript of the November 1984

suppression hearing concerning Kinser’s confession’

(TE 1454). The trial court concluded that after

consulting with his attorney and in the presence of his

attorney, Kinser gave his confession without any

inducements, promises or coercion (TE 1454-1455). The

trial court found that Kinser’s confession indicated he

was a willing and active participant in the joint criminal

‘During the November 5, 1984 suppression hearing attorney

Gary Logsdon testified that he discussed the matter long

enough with Kinser to be satisfied that he “sincerely desired

to make a statement,” he understood his Miranda rights, he

was not under duress or compulsion, and he understood that

no inducements or promises had been made by police or the

prosecutor (TH 28-29). Detective Gaddie and the

Commonwealth’s Attorney confirmed that Kinser and

attorney Logsdon conferred in private, at length, and that

attorney Logsdon was present for most of the tapimg of the

statement (TH 37-38, 49-50). Kinser testified that he had a

severe alcohol protiem and was drunk when he turned

himself into the police on August 21, 1983 (TH 54). Kinser

recalled briefly meeting with attorney Logsdon on August 29,

1983, and being mstructed to “tell them some kind of story.”

(TH 56).

venture who made no effort to prevent or diminish the

severity of the blows Vincent and Johnson gave to the

victim during the course of their interrogation (TE

1456-1457). The court noted that Kinser actively

searched the house while the interrogation occurred

(TE 1456-1457). The trial court also found that every

major element of Kinser’s confession was supported by

independent testimony presented during the trial (TE

1457-1458). As a result, the trial court found “that the

presumption of unreliability has been overcome by the

evidence that we’ve heard and that the confession, to

the extent that it is relevant to the matters charged, is

admissible as evidence.” (TE 1458).

Detective Gaddie testified that on August 29,

1983 he spoke with Kinser at the State Police Post (TE

1458). Kinser told Detective Gaddie that when they

broke into Hayes’ home they found him asleep on the

couch (TE 1475). As soon as they entered the house

Vincent went over to the couch and hit Hayes twice

with a billy club (TE 1475). Vincent then went into the

backroom to search (TE 1476). Johnson kicked Hayes

and then began tearing pieces of tape and placing them

by Hayes (TE 1476). Vincent returned to the main

room:and demanded Hayes tell them “where is it at”

(TE 1476). Hayes denied there was any more money

and Vincent struck Hayes “three or four more times

with the billy club” (TE 1476). While this was occurring

Kinser was in the kitchen searching (TE 1476-1477).

Vincent again left the main room to search (TE 1476-

1477). Vincent then hollered that he had found “it” and

returned to the main room with a sack in his hand (TE

1477). Vincent cut the top off the sack and there was

money inside (TE 1477). Before they left, Johnson taped

up Hayes’ eyes and mouth (TE 1477). On cross-

examination defense counsel brought out the fact that

Kinser’s statement was not signed and sworn (TE 1483).

The Supreme Court of Kentucky acknowledged

that generally a defendant’s Sixth Amendment right to

confrontation is violated when he is directly

incriminated by the confession of a nontestifying co-

defendant (DN 9, exhibit A p.11). Here, however, the

Supreme Court of Kentucky found no conflict with the

Confrontation Clause because of the trial court’s ruling

that Kinser’s statement was against his penal interest

which is a recognized exception to the hearsay rule

(DN 9, exhibit A pp. 10-12). (citing Ky.R.Evid. 804(b)(3);

Harrison v. Commonwealth, 858 S.W.2d 172 (Ky. 1993)

and Taylor v. Commonwealth, 821 S.W.2d 72 (Ky.

1990)). The Supreme Court of Kentucky agreed with

the trial court’s determination that the presumption of

unreliability had been rebutted (DN 9, exhibit A p. 12).

The Confrontation Clause of the Sixth

Amendment provides “[iJn all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted

with the witnesses against him.” Read literally the

language would require the exclusion of any statement

made by an unavailable declarant. See Mattox v.

United States, 156 U.S. 237, 243 (1895). However, such

a reading “would abrogate virtually every hearsay

exception, a result long rejected as unintended and too

extreme.” Ohio v. Roberts, 448 U.S. 56, 63 (1980). The

historical evidence and underlying policies indicate

that the Confrontation Clause is intended to exclude

some hearsay. Roberts, 448 U.S. at 63.

“The Confrontation Clause operates in two

separate ways to restrict the range of admissible

hearsay.” Roberts, 448 U.S. at 65. First, the prosecution

must either produce or demonstrate the unavailability

of the declarant. Roberts, 488 (sic) U.S. at 65 (citing

Mancusi v. Stubbs, 408 U.S. 204 (1972); Barber v. Page,

390 U.S. 719 (1968)). Next, the hearsay statement is

admissible only if it bears adequate “indicia of

reliability.” Roberts, 488 (sic) U.S. at 65-66. “Reliability

can be inferred without more in a case where the

evidence falls within a firmly rooted hearsay

exception.” Roberts, 488 (sic) U.S. at 66. Alternatively,

there must be “a showing of particularized guarantees

of trustworthiness.” Roberts, 488 (sic) U.S. at 66.7

Vincent does not object to the trial court’s

finding that Kinser was unavailable. Rather, Vincent

takes exception with the trial court's finding that the

confession was against Kinser’s penal interest. Vincent

argues that the statements about Vincent and Johnson

beating and taping up Hayes’ are not actually against

Kinser’s penal interest because he sought to distance

himself from the murder. See Williamson v. United

“Although the parties have referred to Bruton v. United

States, 391 U.S. 123 (1968) in their arguments, this is not

strictly speaking a Bruton case because the court is not

addressing the effectiveness of limiting instructions in

preventing spill-over to a defendant when his co-defendant’s

confession is admitted against the co-defendant in a joint

trial.

“Prosecution expert witness Barbara Weakley Jones testified

that Mr. Hayes died as a result of blunt force injuries to the

head (TE 747). Had the blows to the head not killed Mr.

Hayes then he would have suffocated due to significant

swelling the duct tape caused to his tongue plus the broken

nose (TE 748).

States, 512 U.S. 594, 603-604 (1994); United States v.

Jinadu, 98 F.3d 239, 246 (6™ Cir. 1996); Ernest v. Dorsey,

87 F.3d 1123, 1133-1134 (10™ Cir. 1996); Taylor v.

Commonwealth, 821 S.W.2d 72, 78 (Ky. 1990) (Liebson,

J., dissenting). Alternatively, Vincent argues even if the

statements are against Kinser’s penal interest that is not

sufficient “indicia of reliability” to overcome the

presumption of unreliability because a declaration

against penal interest is not a firmly rooted exception to

the hearsay rule, Lee v. Illinois, 476 U.S. 530, 544n.5

(1986), United States v. Flores, 985 F.2d 770, 775 (5™ Cir.

1993), and because the statements are not supported by

“particularized guarantees of trustworthiness.” Idaho

v. Wright, 497 U.S. 805, 819 (1990); United States v.

Gomez-Lemos, 939 F.2d 326, 331-333 (6" Cir. 1991);

Myatt v. Hannigan, 910 F.2d 680, 684 (10 Cir. 1990).

Although Kinser’ onfession is a statement

against penal interest the Supreme Court has held that

in this context that hearsay exception “defines too large

a class for meaningful Confrontation Clause analysis.”

Lee, 476 U.S. at 544 n.5; Earnest (sic), 87 F.3d at 1131;

Flores, 985 F.2d at 775. The Supreme Court has,

however, indicate (sic) the following:

There are many circumstances in which

Rule 804(b)(3) does allow the admission of

Statements that inculpate a criminal -

defendant. Even the confessions of arrested

accomplices may be admissible if they are

truly self-inculpatory, rather than merely

attempts to shift blame or curry favor.

Williamson, 512 US. at 603. Therefore, Kinser’s

confession is “presumptively unreliable,” Lee, 476 U.S.

at 541, and is admissible against Vincent only if

“particularized guarantees of trustworthiness” are

demonstrated. Lee, 476 US. at 543. In conducting this

analysis corroborating evidence may not be considered

as an indicium of reliability for Kinser’s statements.

Wright, 497 U.S. at 823; Earnest (sic), 87 F.3d at 1132.

Williamson and its progeny Jinadu and Ernest

merely direct that the court must determine the

admissibility of each declaration or remark within the

confession when ruling upon its admissibility under

the statement against penal interest exception.

Fed.R.Evid. 804(b)(3); Williamson, 512 U.S. at 600-604;

Jinadu, 98 F.3d at 246; Ernest, 87 F.3d at 1133-1134.

Determining whether a statement is self-inculpatory or

not can only be accomplished by viewing it in context.

Williamson, 512 U.S. at 604. The Court pointed out that

even statements “that are on their fact neutral may

actually be against the declarant’s interest.”

Williamson, 512 U.S. at 604. For example, “’I hid the

gun in Joe’s apartment’ may not be a confession of a

crime; but if it is likely to help the police find the

murder weapon, then it is certainly self-inculpatory.”

Williamson, 512 U.S. at 604. Other statements “that

give police significant details about the crime may also,

depending on the situation be against the declarant’s

interest.” Williamson, 512 U.S. at 604. Notably,

Williamson was rendered subsequent to Vincent's

retrial. However, the trial court noted that Justice

Leibson’s dissent in Taylor v. Commonwealth, 821

S.W.2d 72, 77-82 (Ky. 19900, called for a more fact-

intensive inquiry (TE 1456). As a result, the trial court

analyzed each of Kinser’s statements in context to 7

determine whether it was self-inculpatory (TE 1456-

1457).

The trial court also found that the evidence

presented during the prosecution’s case in chief

corroborated the statements in Kinser’s confession.

This analysis is contrary to the Supreme Court holding

in Wright, 497 U.S. at 823.

Even without consideration of the trial evidence

corroborating Kinser’s confession, however, the

undersigned finds reliable the portions of Kinser’s

Statements related to the jury during the retrial, as it

bears other important indicia of reliability. First, the

Statements were strongly against Kinser’s penal

interest. In fact, the trial court commented that there is

a “natural inclination to believe that when a man

confesses and inculpates himself in any crime wherein

he’s charged with Murder, Robbery and Burglary, that

that’s contrary to penal interest” (TE 1456). Though not

dispositive of reliability this is certainly a factor that

merits consideration. See Ernest, 87 F.3d at 1133. As

previously mentioned, the trial court did not assume

that Kinser’s entire confession was reliable merely

because some elements of it were self-inculpatory. The

trial court went on to note that although Kinser’s

statements indicated he did not strike Hayes, his

statements do indicate he was a willing and active

participant in the crimes who made no effort to prevent

or diminish the severity of the blows struck by his

accomplices during the interrogation (TE 1457). The

trial court concluded that “under the circumstances,

any reasonable person would have to believe that

confessing to an active involvement of a crime of this

sort or the planning stage completely through the

execution, without manifest reluctance, was in fact

contrary to his penal interest” (TE 1457). The trial court

also reviewed transcripts of the 1984 suppression

hearing and concluded that Kinser gave his confession

without any inducements, promises or coercion after

consulting with an attorney (TE 1455). In summary, the

presumption of unreliability concerning the portions of

Kinser’s confession actually related to the jury was

overcome by a showing of particularized guarantees of

trustworthiness. Therefore, admission of the hearsay

evidence did not violate Vincent's rights under the

Confrontation Clause.

Vincent contends that the trial court violated his

Sixth Amendment right to confront an adverse witness

when it allowed Tammy Seabolt Shephard to testify

that a year or two after the crime co-defendant Johnson

told her it was Vincent and Kinser, not him, who killed

Hayes. According to Vincent the trial court’s

admonition to the jury to disregard the testimony did

not cure the error. Vincent argues that the trial court's

error is very similar to an error that occurred during

the first trial which resulted in the Sixth Circuit

concluding that Vincent and Johnson were entitled to

habeas relief on the ground that their Sixth

Amendment right to confrontation was abridged. See,

Vincent v. Parke, 942 F.2d 989, 993 (6th Cir. 1991).

Vincent asserts that since the evidence against him

during the retrial was “circumstantial--aside from the

erroneous admission of Kinser’s confession”--the trial

court’s error was not harmless beyond a reasonable

doubt.

Tammy Seabolt Shephard (“Shephard”) is the

eighteenth witness called by the prosecution in the

retrial. During direct examination Ms. Shephard

confirmed that she had a conversation with defendant

Johnson subsequent to the Hayes murder (TE 978-979).

At that point the trial court conducted an in chambers

conference during which the Commonwealth advised

that Ms. Shephard’s anticipated response would be that

Johnson “told her that they were all there and they

killed Harold Hayes.” (TE 979). However, when Ms.

Shephard was questioned before the jury she testified

that a year or two after the crime occurred she asked

Johnson whether he killed Harold Hayes and he replied

“no, I didn’t kill him, Leroy and Dean did.” TE 985).

The trial court conducted another conference in

chambers (TE 986). After hearing oral argument the

trial court concluded that the confrontation clause error

that occurred during the first trial was entirely different

from the situation that had just unfolded. (TE 1012).

Because the witness took the stand and was available

for cross-examination the trial court believed that the

admission by Johnson was admissible with respect to

Johnson and possibly with respect to Vincent but found

that the admission of the testimony was in error (TE

1012-1013). The trial court also indicated that

considering the evidence that has been heard and the

evidence that the Commonwealth indicates that it

intends to present the statement by Ms. Shepherd,

standing alone with admonishment, would have little

likelihood of affecting the outcome of the trial (TE

1013). For that reason the trial court overruled the

motion for mistrial (TE 1013). Thereafter the trial court

admonished the jury that although the question was

proper Ms. Shephard gave an answer that was contrary

to the rules of evidence before the Court could stop her

(TE 1017-1018). The Court explained that her testimony

had no evidentiary value and explained to the jury that

it could not consider her testimony as evidence (TE

1018). The trial court further stated “it has no

credibility and should be totally disregarded by you in

every shape, form, and fashion.” (TE 1018). The Court

also instructed as follows:

“You are to put it out of your mind, as

though it has never been said. Do we all

understand each other? OK.”

(TE 1018).

The Supreme Court of Kentucky concluded that

the trial court’s admonition was more than sufficient to

cure any error that occurred (DN 9, exhibit a, p. 13).

The Supreme Court of Kentucky also concluded that

given the evidence against Vincent any error that may

have occurred was harmless (DN 9, exhibit a, p. 13).

The circumstances here are distinguishable from

those that occurred during the first trial. Here, Ms.

Shephard’s testimony was merely cumulative because

the Kinser statement placed Vincent at Hayes’ store on

the night of the murder and indicated that Vincent

struck Hayes with a billy club. Further, the evidence

presented during the retrial was not entirely

circumstantial as it had been during the first trial. See,

Vincent, 942 F.2d at 993. Perhaps the most important

distinction is the change in the harmless error standard.

In 1991 the standard was harmless beyond a reasonable

doubt. Vincent, 942 F.2d 992 (citations omitted.)

However that standard changed in 1993. See, Brecht v.

Abrahamson, 507 U.S. 619 (1993). Under the new

standard, an error may be deemed harmless if the

reviewing court find that the error did not influence the

jury, or had but very slight effect and the judgment was

not substantially swayed by the error. Kotteakos v.

United States, 328 U.S. 750, 764-765 (1946). In light of

the properly admitted statements of Kinser, the

undersigned concludes that Ms. Shephard’s testimony

though volative of Vincent's confrontation clause

rights, did not influence the jury or had but a very

slight effect on the jury.

Next, Vincent contends that the trial court

violated his Sixth Amendment rights when it denied

his motion for a separate trial because the trial was

replete with testimony that was admissible against

Johnson but not against Vincent.

In chambers before jury voir dire counsel for

Vincent moved to sever because he was convinced that

there was going to be some testimony that would be

admissible as to Johnson but not as to Vincent (TE 38-

46). After hearing oral argument the trial court

concluded that since both defendants were being

charged and tried for the same event or series of events

and the evidence the Commonwealth intended to

present was expected to be equally incriminating as to

both defendants. The Court concluded that there was

not a sufficient basis to sever (TE 46). The Supreme

Court of Kentucky concluded that counsel for Vincent

and Johnson had failed to demonstrate to the trial judge

the necessity for a separate trial because all they offered

was the assertion that the defendant’s defenses “might

become antagonistic depending upon the tenor of the

trial as it progressed.” (DN 9, exhibit a, p. 14). Because

Vincent and Johnson failed to demonstrate that

prejudice occurred and that the likelihood of such

prejudice was ciearly demonstrated to the trial judge

the Supreme Court of Kentucky concluded that the trial

court did not abuse its discretion in overruling the

defense motion to sever (DN 9, exhibit a, p. 14).

As a general matter severance cases focus either

on antagonistic defense claims, See, e.g., Jenkins v.

Bordenkircher, 611 F.2d 162 (6th Cir. 1979), cert. denied,

446 U.S. 943 (1980), or on asserted need for co-

defendant testimony, See, e.g., Tifford v. Wainwright,

588 F.2d 954 (5th Cir. 1979). Vincent alleges that the

trial court should have granted his motion for

severance because of antagonistic defense claims.

Vincent argues that the transcript of Johnny Lee

Sowders’ testimony from the first trial, testimony by

Danny Cornwell, testimony by Louise Wilson and

testimony by Lisa Hodge Wertz which was

incriminating as to Johnson was very prejudicial to him

because it allowed the jury to convict him based upon

his association with Johnson rather than evidence

actually tying him to the crimes charged. Vincent also

asserts that since Johnson did not testify during the

retrial he was denied his right to confront him in

violation of Bruton.

The mere existence of antagonistic defenses does

not mandate severan: v. Jenkins, 611 F.2d at 167-168. In

order to prevail Vincent must demonstrate both an

abuse of discretion and prejudice from denial of a

severance motion. Jenkins, 611 F.2d at 168 (citation

omitted). There is a strong policy in favor of joint trials

when the charges will be proved by the same series of

acts and Vincent has failed to demonstrate that the

existence of antagonistic defenses confused the jury.

See, United States v. Horton, 847 F.2d 313, 317 (6th Cir.

1988). Most of the testimony that Vincent complains

about did not implicate him in the crime. Secondly,

Vincent had an opportunity to cross-examine each of

the witnesses. As a result the undersigned concludes

that Vincent has failed to demonstrate that the trial

court abused its discretion in denying the motion to

sever. In light of the overwhelming evidence of

Vincent's guilt the undersigned concludes that Vincent

was not prejudiced as a result of the denial of the

severance motion. Furthermore, under these

circumstances, any error resulting from denial of the

motion for severance was harmless. Brecht v.

Abrahamson, 507 U.S. 619 (1993).

Next, Vincent contends that he was denied his

right to a speedy trial in violation of the Sixth

Amendment because approximately seventeen months

passed between the time the Sixth Circuit ordered that

he be retried within a reasonable time and the start of

his retrial. Vincent blames the Department of Public

Advocacy, an agency of the Commonwealth, for a

nearly fifteen month delay in appointing counsel after

he was granted a new trial.

The record reflects that the delay in retrying

Vincent was primarily due to the difficulty of

appointing counsel for both defendants. The

Department of Public Advocacy was appointed to

represent Johnson and Vincent on January 10, 1992 and

a retrial was scheduled to begin on August 11, 1992.

However, that trial date had to be continued because '

defense counsel was not available. In fact counsel for |

Johnson and Vincent did not make an appearance until

November 18, 1992. However a trial date was

scheduled for November 23, 1992. In spite cf objections

by Vincent, his appointed counsel moved the Court for

an order continuing the trial date because there was not |

sufficient time to adequately prepare for the trial. |

The trial court on November 24, 1992 addressed

the issue and concluded that the delay was not due to ;

bad faith on the part of the Commonwealth and that

the delay would not be prejudicial to the defendants.

The Supreme Court of Kentucky, applying Barker v.

Wingo, 407 U.S. 514 (1972), concluded that the four

pronged test had not been satisfied because there was

no allegation that the delay was due to bad faith on the

part of the prosecution and there was no showing of

prejudice because all evidence from the previous trial

was preserved (DN 9, exhibit a, pp. 15-17).

In addressing this type of claim consideration

should be given to the length of delay, the reasons for

the delay, the defendant's assertion of his right and

prejudice to the defendant. Doggett v. United States,

505 E.S. (sic) 647, 651 (1992); Barker v. Wingo, 407 E.S.

(sic) 514, 530 (1972). Vincent blames the delay on the

Commonwealth. Vincent claims the Commonwealth’s

allocation of resources to the Department of Public

Advocacy prevented it from expeditiously providing

him with counsel. However, there is no evidence in the

record to support this assertion. Additionally, Vincent

apparently made no effort to advise the trial court that

the Department of Public Advocacy was dilatory in

assigning him trial counsel. Rather, Vincent merely

waited quietly and then sought dismissal of the charges

because of the delay. Further, Vincent has not

demonstrated that his defense was impaired by the

delay. To the contrary, the decision of his trial counsel

to delay the November 23, 1992 trial date inured to

Vincent's benefit because defense counsel was better

prepared to represent Vincent during the retrial. After

reviewing the relevant facts and applicable law, the

undersigned concludes that Vincent has failed to

demonstrate that the state court decision was contrary

to, or involved in unreasonable application of, clearly

established federal law, as determined by the Supreme

Court of the United States or that it was based on an

unreasonable determination of facts in light of the

evidence presented in the state court proceeding.

RECOMMENDATION

For the foregoing reasons, it is recommended

that respondent’s motion for summary judgment be

granted and that the petition for writ of habeas corpus

be dismissed with prejudice. Since the petition for writ

of habeas corpus (DN 2) and petitioner’s response to

the motion for summary judgment (DN 14) adequately

present petitioner’s arguments there is no basis for

granting leave to amend the petition.

This 4" day of August , 1998.

/S/ Robert Goebel

E. ROBERT GOEBEL

UNITED STATES MAGISTRATE JUDGE

NOTICE

Therefore, under the provisions of 28 U.S.C. |

Sections 636(b)(1)(B) and (C) and Fed.R.Civ.P. 72(b), the

Magistrate Judge files these findings and

recommendations with the Court and a copy shall

forthwith be mailed to all parties. Within ten (10) days

after being served with a copy, any party may serve

and file written objections to such findings and

recommendations as provided by the Court. If a party

——a

has objections, such objections must be filed within ten

(10) days or further appeal is waived. Thomas v. Arn,

728 F.2d 813 (6th Cir.), aff'd, 474 U.S. 140 (1984).

Counsel will please forward a copy of any objections to

the undersigned Magistrate Judge at Room 126, United

States Courthouse, 423 Frederica Street, Owensboro,

Kentucky 42301.

/S/ Robert Goebel

E. ROBERT GOEBEL

UNITED STATES MAGISTRATE JUDGE

DATE: August 5, 1998

98 AUG -5 A 10:37

FILED ll

US DISTRICT COURT CLERK

WESTN DIST KENTUCKY

32 |

No. 98-6457

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DEAN VINCENT

Petitioner - Appellant,

WILLIAM SEABOLD, Warden,

Respondent - Appellee

me mee ee ee eee” ee”

BEFORE: KEITH, COLE, and GILMAN,

Circuit Judges.

The court having received a petition for

rehearing en banc, and the petition having be«a

circulated not only to the original panel members but

also to all other active judges of this court, and no judge

of this court having requested a vote on the suggestion

for rehearing en banc, the petition for rehearing has

been referred to the original panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original

submission and decision of the case. Accordingly, the

petition is denied.

ENTERED BY ORDER OF THE COURT

/S/ Leonard Green

LEONARD GREEN, CLERK

FILED

DEC 12 2000

LEONARD GREEN, CLERK

OFS RS SPIT.

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 98-6457

DEAN VINCENT

Petitioner - Appellant,

WILLIAM SEABOLD, Warden

Respondent - Appellee

Before: KEITH, COLE, and GILMAN,

Circuit Judges.

JUDGMENT

On Appeal from the United States District Court

for the Western District of Kentucky

at Bowling Green

THIS CAUSE was heard on the record from the

district court and was argued by counsel

IN CONSIDERATION WHEREOF , it is

ORDERED that the judgment of the district court

denying petitioner Dean Vincent's petition for writ of

habeas corpus is REVERSED, and the case is

REMANDED for further proceedings in accordance

with the opinion of this court..

ENTERED BY ORDER OF THE COURT

/S/ Leonard Green

LEONARD GREEN, CLERK

FILED

SEP 13, 2000

LEONARD GREEN, CLERK

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.