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Kleckner v. Mills

United States District Court, N.D. Mississippi, Aberdeen Division

September 18, 2018

JEFFREY KLECKNER PETITIONER
v.
ANDREW MILLS RESPONDENT

          MEMORANDUM OPINION AND ORDER

          SHARION AYCOCK UNITED STATES DISTRICT JUDGE.

         Petitioner Jeffrey Kleckner, a Mississippi inmate proceeding pro se, has filed a federal habeas petition pursuant to 28 U.S.C. § 2254 challenging the convictions and sentences that he received in the Circuit Court of Union County, Mississippi, for three counts of sexual battery and one count of touching a child for lustful purposes. Having considered the submissions of the parties, the State-court record, and the law applicable to Kleckner's claims, the Court finds that the petition should be denied.

         I. Background Facts and Procedural History

         In the summer of 2006, AB[1] confided to her cousin, Whitney, that Jeffrey Kleckner, AB's cousin and neighbor, had sexually assaulted her. AB continued to confide in Whitney as she endured additional assaults committed by Kleckner. Whitney eventually disclosed the information to her mother, AB's aunt. AB's aunt contacted AB's parents on Sunday, September 7, 2008, and as a result of that telephone call, AB disclosed to her parents that Kleckner had engaged in inappropriate sexual conduct with her. AB's parents contacted the Union County Sheriff's Department, which began an investigation.

         On Tuesday, September 9, 2008, Angie Floyd, a forensic-interview specialist with the Children's Advocacy Center in Tupelo, interviewed AB. After the interview, Roger Garner, an investigator with the Union County Sheriff's Department who was also present during the forensic interview, obtained affidavits and warrants for Kleckner's arrest. Kleckner was arrested at his girlfriend's home in Blue Mountain, Mississippi, on September 10, 2008, and was transported to the Union County Sheriff's Department, where he waived his rights and gave the following statement:

During the summer of 2006 after I got laid off from the furniture factory, I had too much time on my hands. [AB] had come up to my shop on County Road 121 and talked about stuff-the cars, school, boys, and her dad's dogs. The first time I touched her we were in the house playing cards. She is an aggressive and curious girl. I was alone and thinking about stuff and I started to talk to her. I touched her breasts and nipples. I then touched her vagina and I put my finger inside her and rubbed it around. I can't remember if I moved my hand or if she reached for my penis, but she touched my erect penis and I was aroused. I don't know if I made her climax or not. I didn't, I don't think, but the first time she reached out and touched my penis. I remember at one time in the car that I touched her vagina area inside her thigh, but nothing else happened that time. I don't think there were any other times. I told her that she should be careful of boys that might take advantage of her and do more to her. I did not want her to hate me. After this stuff happened, I just stay [sic] away from the family. About a month or so ago, I called to ask about the zoo, but she did not answer.

Doc. #21-4 at 91-92.

         On September 10, 2008, Kleckner was arrested and booked into the Union County Jail, where he remained until he was released on September 19, 2008. He was indicted on October 21, 2008, for three counts of sexual battery and one count of touching a child for lustful purposes.[2] Joe T. Gay entered an appearance as defense counsel on April 27, 2009.

         Trial was set for September 14, 2009 by order entered June 10, 2009. On September 11, 2009, Kleckner was admitted to the hospital with chest pains, uncontrolled diabetes, and acute kidney injury. He underwent a heart procedure on Monday, September 14, 2009, and remained hospitalized until the following day. On Monday, September 14, 2009, defense counsel made an ore tenus and off-the-record motion for a continuance because of Kleckner's hospitalization that was denied by the trial court. Kleckner's jury trial began on Wednesday, September 16, 2009, with Kleckner present. He testified in his own defense at trial.

         On September 18, 2009, Kleckner was found guilty on all counts. He was ordered to serve three concurrent terms of life imprisonment for the sexual battery convictions and a consecutive fifteen-year sentence for the conviction of touching a child for lustful purposes. Doc. #21-1 at 90. The circuit court ordered that the sentences would not be reduced or suspended, that Kleckner would not be eligible for any type of sentence reduction or parole, and that he would be required to comply with the State laws regarding sex offender obligations, including registration per to Miss. Code Ann. § 43-33-25. Id.

         Kleckner appealed, and the Mississippi Court of Appeals affirmed the convictions and sentences on May 22, 2012. Kleckner v. State, 109 So.3d 1072 (Miss. Ct. App. 2012), reh'g denied, Nov. 13, 2012, cert. denied, March 28, 2013 (Cause No. 2009-KA-01681-COA). Thereafter, Kleckner, proceeding pro se, filed a post-conviction relief application in the Mississippi Supreme Court. By Order dated September 17, 2014, the Mississippi Supreme Court granted Kleckner's application as to one issue only: “that trial counsel was ineffective for failing to object to Exhibits S-10 and S-11 and for offering Exhibits D-5, D-6, D-7, and D-8.”[3] Doc. #20-2. Leave to file post-conviction relief was denied as to all other issues. Id. Thereafter the Circuit Court of Union County, Mississippi, denied post-conviction relief as to the identified issue by Order entered November 18, 2015. Doc. #20-3.

         Kleckner appealed, and on March 21, 2017, the Mississippi Court of Appeals affirmed the Circuit Court's denial of Kleckner's post-conviction relief motion as to the one post-conviction issue. Doc. #20-4. His motion for rehearing was denied by the Mississippi Court of Appeals, and his petition for writ of certiorari was denied by the Mississippi Supreme Court. See Kleckner v. State, 230 So.3d 1042 (Miss. Ct. App. 2017), reh'g denied, July 18, 2017, cert. denied, Sept. 28, 2017 (Cause No. 2016-CP-00499-COA).

         On November 20, 2017, Kleckner, proceeding pro se, filed the instant petition for a writ of habeas corpus, raising two grounds for relief:

Ground One: Ineffective Assistance of Counsel.
Ground Two: Improper Interrogation.

         On June 14, 2018, Respondent filed an answer to the petition, conceding that the federal habeas issues raised by Kleckner were presented to the Mississippi Supreme Court for review.[4] Doc. #20 at 11. On July 3, 2018, Kleckner filed a reply to Respondent's answer. Doc. #22. This matter is ripe for review.

         II. Legal Standard

         The Court's review of the instant petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which prevents the grant of federal habeas relief on any claim adjudicated on the merits in state court unless that adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established United States Supreme Court precedent; or (2) resulted in a decision based on an unreasonable determination of facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(1) & (2); Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

         Federal habeas relief may be granted under the “contrary to” clause where the State court (1) arrives at a conclusion opposite that reached by the Supreme Court on a question of law; or (2) decides a case differently than the Supreme Court on a set of materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the “unreasonable application” clause, a federal court may grant relief where the State court applies the correct legal principle to the facts in an unreasonable manner. See id. at 407-08; Brown v. Payton, 544 U.S. 133, 141 (2005). Whether a decision is “unreasonable” is an objective inquiry; it does not turn on whether the decision is merely incorrect. See Schriro, 550 U.S. at 473 (“The question under the AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable a substantially higher threshold.”); Williams, 529 U.S. at 410-11; Morrow v. Dretke, 367 F.3d 309, 313 (5th Cir. 2004) (finding habeas relief merited where state decision was both incorrect and objectively unreasonable). When evaluating the evidence presented in state court, a federal habeas court presumes the correctness of the state court's factual findings unless the petitioner rebuts the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

         III. Claims

         Ground One

         A. Ineffective Assistance of Counsel Standards

         In Ground One, Kleckner claims that his trial attorney rendered ineffective assistance of counsel under the standards set forth in United States v. Strickland, 466 U.S. 685 (1984) and United States v. Cronic, 466 U.S. 648 (1984), and that the Mississippi Supreme Court disregarded applicable precedent in deciding his claims.

         Claims of ineffective assistance of counsel are generally governed by the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), which requires a habeas petitioner to satisfy a two-prong test to warrant federal habeas corpus relief: (1) demonstrate constitutionally deficient performance and (2) demonstrate actual prejudice as a result of such ineffective assistance. Strickland, 466 U.S. 668 (1984). Deficiency is established when petitioner can demonstrate that counsel's performance falls below an objective standard of reasonableness as measured by professional norms, such that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Id. at 687-88. This Court's scrutiny is to be highly deferential of counsel's performance, with an effort to “eliminate the distorting effects of hindsight.” Motley v. Collins, 18 F.3d 1123, 1126 (5th Cir. 1994). In fact, counsel is to be afforded a presumption that his actions were the product of “sound trial strategy” and undertaken with the exercise of reasonable professional judgment. Strickland, 466 U.S. at 689.

         Under Strickland, prejudice is established when the petitioner can demonstrate to a reasonable probability that the result of the proceedings would have been different but for the challenged conduct, thereby undermining confidence in the reliability of the outcome. Strickland, 466 U.S. at 687, 694. However, an error, even if professionally unreasonable, does not warrant setting aside the judgment if it had no effect on the judgment. Summit v. Blackburn, 795 F.2d 1237, 1242 (5th Cir. 1986) (citation omitted).

         In Cronic, however, the United States Supreme Court “identified three situations implicating the right to counsel that involved circumstances ‘so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.'” Bell v. Cone, 535 U.S. 685, 695 (2002) (citations omitted). These situations include (1) “the complete denial of counsel, ” (2) “if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, ” and (3) “where counsel is called upon to render assistance under circumstances where competent counsel very likely could not[.]” Id. (citations and internal citations omitted).

         On direct appeal, the Mississippi Court of Appeals analyzed Kleckner's claims under the Strickland standard, finding “no obvious deficiencies that rose to the level of ineffective assistance of counsel” and further finding “no merit to Kleckner's claim that he was denied counsel at a critical state in the proceedings.” Kleckner, 109 So.3d at 1094. It rejected Kleckner's argument that Cronic rather than Strickland was the proper standard, as Klekcner argued “specific failures of his counsel, not failure as a whole.” Id. at 1095.

         B. Preparation for Trial

         Kleckner argues that he was denied his Sixth Amendment right to counsel as (1) due to his hospitalization three days prior to the start of trial, he was unable to meet with counsel for the critical pre-trial preparation phase; (2) that trial counsel could not have adequately prepared him; (3) that trial counsel did not have an opportunity to investigate his medical condition; (4) that trial counsel did not have an opportunity to review the case or his statement in detail with him; and (5) that trial counsel did not have an opportunity to review the DVD of the forensic interview of the victim with him. Kleckner also argues that his trial counsel failed to object to, or move to suppress, the officer-written confession, failed to challenge the expert forensic interviewer, failed to object to the police officer's testimony about the petitioner's medical condition ...


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