Luvell West v. J. David Donahue

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0656n.06
No. 09-5840
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LUVELL WEST,
Petitioner-Appellant,
v.
J. DAVID DONAHUE,
Respondent-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF KENTUCKY
Before: COOK, McKEAGUE, and GRIFFIN, Circuit Judges.
COOK, Circuit Judge. This § 2254 habeas appeal raises one issue: whether petitioner
procedurally defaulted his ineffective-assistance-of-counsel claims. The district court said yes, on
the theory that the state courts applied an adequate and independent procedural rule—from Baze v.
Commonwealth, 23 S.W.3d 619 (Ky. 2000)—to bar post-conviction relief. We need not reach the
adequate-and-independent issue because we find that Baze no longer applies to petitioner’s claims:
they benefit, retroactively, from the abolishment of the applicable Baze rule. We therefore reverse
the district court’s judgment and remand for proceedings consistent with this opinion.
I.
In 2004, Luvell West pleaded guilty to murder and several other charges in exchange for a
life sentence. West appealed after sentencing, claiming that trial counsel coerced his plea. The

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Supreme Court of Kentucky rejected this claim and affirmed his conviction and sentence. West v.
Commonwealth, No. 2005-SC-000239-MR, 2006 WL 1360189, at *3 (Ky. May 18, 2006) (per
curiam).
West next moved to vacate his conviction and sentence pursuant to Kentucky Rule of
Criminal Procedure (RCr) 11.42, alleging that his trial counsel’s multiple instances of ineffective
assistance rendered his plea involuntary. The trial court denied his motion.
The court of appeals affirmed, deeming all of West’s ineffective-assistance claims
procedurally barred. West v. Commonwealth, No. 2006-CA-002488-MR, 2008 WL 2312616, at *3
(Ky. Ct. App. June 6, 2008). The court explained that because all of West’s claims attacked the
validity of his plea—the same underlying error he challenged in his direct appeal—he could and
should have raised them on direct appeal as alterative grounds to invalidate his plea. Id. (citing Baze,
23 S.W.3d at 626, 628). Because of this rule—the “Baze rule”—RCr 11.42 did not permit him
simply to recast his validity challenge as various ineffective-assistance claims. Id.
After the Kentucky Supreme Court denied discretionary review of his collateral attack, West
filed a § 2254 habeas petition, see 28 U.S.C. § 2254, raising the same claims of ineffective assistance
of counsel. The district court found that West procedurally defaulted his ineffective-assistance
claims because the state courts relied on an adequate and independent state procedural rule to bar
them—the Baze rule—and it accordingly denied his petition. West v. Donahue, No. 5:08CV-00199-
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R, 2009 WL 1735297, at *1, *4 (W.D. Ky. June 17, 2009). We granted a certificate of appealability
on one issue: the procedural default.
II.
Procedural default bars federal habeas review of a constitutional claim when (1) the petitioner
failed to comply with a state procedural rule that applies to the claim; (2) the state court enforced the
procedural rule against the claim; (3) the procedural rule constitutes “an adequate and independent
state ground upon which the state can rely to foreclose review” of the claim; and (4) the petitioner
cannot demonstrate cause for the default and prejudice from the constitutional error. Hutchinson v.
Bell, 303 F.3d 720, 735–36 (6th Cir. 2002).
The parties focus on the third prong of the procedural-default test and dispute the adequacy
of the Baze rule. See, e.g., Parker v. Bagley, 543 F.3d 859, 861–62 (6th Cir. 2008) (discussing the
adequacy test). But the cases that West relies upon more appropriately challenge the first prong of
the procedural-default test and raise an interesting question: does the Baze rule, which the Kentucky
courts discarded during the pendency of West’s RCr 11.42 proceedings, continue to apply to his
ineffective-assistance claims and thus prevent habeas review? We think not.
The legal landscape for post-conviction proceedings in Kentucky changed significantly
between the filing of West’s direct appeal and the conclusion of his collateral attack. At the time
of his direct appeal, Baze “bar[red] ineffective assistance of counsel claims related to issues that were
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raised on direct appeal.” Leonard v. Commonwealth, 279 S.W.3d 151, 157 (Ky. 2009). In other
words, the Baze rule prohibited a defendant from using RCr 11.42 to relitigate “[a]n issue raised and
rejected on direct appeal . . . by claiming that it amount[ed] to ineffective assistance of counsel.”
Id. (emphasis omitted) (internal quotation marks and citation omitted). But in Martin v.
Commonwealth, the Kentucky Supreme Court—without mentioning Baze—reversed course and
allowed the defendant to present his ineffective-assistance claims in an RCr 11.42 motion despite
the lower courts rejecting, on direct appeal, his underlying claim of error. 207 S.W.3d 1, 3–5 (Ky.
2006); see also Leonard, 279 S.W.3d at 157. Several years later, Kentucky’s highest court
acknowledged that Martin overruled Baze; it further explained that, in certain circumstances, Martin
applies retroactively to the benefit of RCr 11.42 movants who assert ineffective-assistance claims
related to previously rejected claims of underlying error. Leonard, 279 S.W.3d at 158–62.
This is one of those circumstances where Martin applies retroactively. A new collateral
attack rule applies retroactively only if the new rule is announced before “the order resolving a
collateral attack becomes final.” Id. at 160. Martin announced a new procedural rule, thus making
the date of that decision the proper point for determining retroactivity. Id. at 160–61; see also Cecil
v. Commonwealth, No. 2009-CA-000462-MR, 2010 WL 4739987, at *2 (Ky. Ct. App. Nov. 24,
2010) (allowing defendant, in light of Martin and Leonard, to raise formerly barred ineffective-
assistance claims in an RCr 11.42 motion); Bronk v. Commonwealth, No. 2007-CA-001724-MR,
2010 WL 2427424, at *2–3 (Ky. Ct. App. June 18, 2010) (same). And West, unlike the Leonard
defendant, benefits from the new rule. In Leonard, the defendant’s RCr 11.42 proceeding concluded
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long before the 2006 Martin decision. 279 S.W.3d at 162. West’s collateral attack, however,
became final in 2008 when the Kentucky Supreme Court denied discretionary review—long after
the Martin decision. See id. at 160. Because Martin trumps Baze here, the Baze rule no longer
applies to West’s ineffective-assistance claims and thus does not foreclose federal habeas review.
III.
Though West neglected to raise his ineffective-assistance claims in his direct appeal—and,
as a result, failed to comply with the Baze rule—that rule no longer bars his claims: the claims
benefit from the retroactive application of the new procedural rule announced in Martin. We
therefore reverse the district court’s judgment and remand for proceedings consistent with this
opinion.
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