United States District Court, N.D. Mississippi, Aberdeen Division
MEMORANDUM OPINION AND ORDER
SHARION AYCOCK UNITED STATES DISTRICT JUDGE.
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.
Background Facts and Procedural History
summer of 2006, AB 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.
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.
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. Joe T. Gay entered an appearance
as defense counsel on April 27, 2009.
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.
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.
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.” 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.
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.
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.
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. Doc. #20 at 11. On July 3, 2018, Kleckner
filed a reply to Respondent's answer. Doc. #22. This
matter is ripe for review.
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).
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. §
Ineffective Assistance of Counsel Standards
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.
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.
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
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).
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.
Preparation for Trial
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