Benji Manns v. Gary Beckstrom , 695 F. App'x 883 ( 2017 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0322n.06
Case Nos. 15-6025
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jun 09, 2017
BENJI MANNS, )
DEBORAH S. HUNT, Clerk
)
Petitioner-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
GARY BECKSTROM, Warden, ) KENTUCKY
)
Respondent-Appellee. )
)
)
BEFORE: GIBBONS, SUTTON, and WHITE, Circuit Judges.
PER CURIAM. A Kentucky jury convicted Benji Manns of three counts of first degree
trafficking in hydromorphone, oxycodone, and morphine. It also found him to be a persistent
felony offender, which led to a total sentence of 60 years’ imprisonment. The Kentucky
Supreme Court affirmed on direct appeal and later denied review when Manns collaterally
attacked his conviction in state court. Manns then filed a federal habeas petition. The district
court denied it, and we granted a certificate of appealability on his ineffective assistance of trial
and appellate counsel claims. We now affirm because Manns’ claims cannot succeed on the
merits, even if we excused his procedural default.
Case No. 15-6025, Manns v. Beckstrom
I.
In February 2005, an undercover detective sat in a car with Manns and gave him $40 for
drugs. Manns went into a house and returned with pills in hand—two pills were oxycodone ($15
each), and the rest, he said, were morphine (worth $10). The morphine turned out to be
hydromorphone. But later in February, Manns did in fact sell morphine to a detective. In June, a
grand jury indicted him, and a petit jury later convicted him, of three counts of first-degree drug
trafficking for hydromorphone, oxycodone, and morphine. Of import to his sentence, the jury
also convicted him of being a first-degree persistent felony offender. The judge imposed the
minimum penalty: twenty years on each count, to run consecutively.
On direct appeal, Manns raised five issues but did not argue that the court should overrule
Devore v. Commonwealth, 662 S.W.2d 829 (Ky. 1984), which required the trial judge to impose
consecutive sentences. The Kentucky Supreme Court overruled Devore seventeen days after
Manns filed his reply brief. Peyton v. Commonwealth, 253 S.W.3d 504, 510–11 (Ky. 2008). But
it nonetheless affirmed Manns’ conviction and sentence three months later. Manns v.
Commonwealth, No. 2006-SC-929-TG, 2008 WL 3890350 (Ky. Aug. 21, 2008). Manns cited
Peyton and challenged the application of Devore to his sentence for the first time in his petition
for rehearing, which the Kentucky Supreme Court denied.
On collateral review in state court, Manns raised numerous issues. But he did not argue
that his trial counsel was ineffective for failing to challenge the indictment under Kentucky’s
double jeopardy clause, and he did not argue that appellate counsel was ineffective for failing to
raise a challenge to Devore prior to the petition for rehearing. The Kentucky trial court denied
his petition. The Kentucky Court of Appeals affirmed. And the Kentucky Supreme Court
denied review.
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Manns filed a federal habeas petition. See 28 U.S.C. § 2254. The district court denied it.
We then granted a certificate of appealability on two issues: (1) whether trial counsel was
constitutionally ineffective for failing to raise a double jeopardy challenge to the indictment; and
(2) whether appellate counsel was constitutionally ineffective for failing to challenge Devore in
the initial briefing to the Kentucky Supreme Court.
II.
All agree that Manns failed to raise both ineffective-assistance claims in the state courts
on collateral review. Manns argues that we should excuse both procedural defaults under
Martinez v. Ryan, 566 U.S. 1, 13–15 (2012), and Trevino v. Thaler, 133 S. Ct. 1911, 1921
(2013), and our decision in Woolbright v. Crews, 791 F.3d 628, 636 (6th Cir. 2015). But we
need not wade in to those possibilities because neither claim can succeed on the merits.
Ineffective assistance of trial counsel. Counsel was constitutionally ineffective only if
the representation fell below an objective standard of reasonableness and the defendant was
prejudiced by counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 687–88
(1984). Manns’ claim fails because he was not prejudiced by his counsel’s allegedly
unreasonable failure to raise a double jeopardy challenge to the indictment.
Manns does not argue that his indictment violated the federal double jeopardy test, under
which each statutory crime must have an element the other does not for the government to charge
separate offenses. See Blockburger v. United States, 284 U.S. 299, 304 (1932). And he indeed
could not succeed on such a claim. See United States v. Pope, 561 F.2d 663, 669 (6th Cir. 1977)
(upholding multiple counts arising from single sale of multiple substances).
He instead bases his claim on the Kentucky constitution’s double jeopardy clause. When
state law offers criminal defendants more extensive protections than federal law, counsel’s
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failure to bring a cognizable claim under state law can violate the federal right to effective
assistance of counsel. Goff v. Bagley, 601 F.3d 445, 464 (6th Cir. 2010). But Kentucky’s double
jeopardy protections were no broader than the federal constitution’s when Manns was convicted.
Manns claims that the Kentucky Supreme Court’s decision in Commonwealth v. Grubb,
862 S.W.2d 883, 884 (Ky. 1993), was good law at the time of his trial, that it precluded multiple
charges when two separate substances of the same schedule were sold in a single transaction, and
that his trial lawyer was ineffective for failing to raise that objection. As in Manns’ case, the
prosecution in Grubb charged multiple counts based on a single sale involving more than one
Schedule II narcotics. The Kentucky Supreme Court invalidated the multiple convictions on
double jeopardy grounds. But that decision arose during a short-lived expansion of Kentucky
double jeopardy doctrine that began with Ingram v. Commonwealth, 801 S.W.2d 321 (Ky. 1990),
and ended with Commonwealth v. Burge, 947 S.W.2d 805 (Ky. 1996). During that period, a
defendant could not be punished more than once for “a single impulse and a single act, having no
compound consequences.” Ingram, 801 S.W.2d at 324.
By the time of Manns’ trial, however, the Kentucky Supreme Court had already
overruled Ingram’s “single impulse” test and “declare[d] that double jeopardy issues arising out
of multiple prosecutions henceforth will be analyzed in accordance with the [traditional]
principles set forth in Blockburger”—a test under which Manns does not claim he could prevail.
Burge, 947 S.W.2d at 811. It is true that Burge declined to expressly overrule Grubb because, it
said then, Grubb’s result could be reached under Blockburger too. But Kentucky’s
straightforward application of Blockburger was already the law of the State. And the Kentucky
Supreme Court later clarified that Grubb indeed “primarily relied on the ‘single impulse’ test
established in Ingram v. Commonwealth, which was later overruled.” Early v. Commonwealth,
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470 S.W.3d 729, 739 (Ky. 2015). That holding demonstrates that, even if Manns’ counsel was
deficient, he was not prejudiced by the absence of a state-law double jeopardy objection.
Ineffective assistance of appellate counsel. Manns’ ineffective appellate counsel claim
suffers a similar flaw. Even if we assume for the sake of argument that Martinez and Trevino
extend to appellate counsel claims, see Davila v. Davis, 137 S. Ct. 810 (2017) (mem.) (granting
cert), and even if we assume that his procedural default could be excused under that standard,
Manns cannot establish deficient performance under Strickland.
Manns claims that his appellate counsel on direct appeal was constitutionally ineffective
for failing to challenge Devore’s consecutive-sentence requirement in the Kentucky Supreme
Court. But under Strickland’s “highly deferential” standard, his appellate counsel’s decision to
decline to ask a state supreme court to overrule itself was not “outside the wide range of
professionally competent assistance.” Strickland, 466 U.S. at 690. There was little indication
that other Kentucky courts had questioned Devore’s soundness prior to its overruling in Peyton.
In fact, Kentucky courts consistently reaffirmed the Devore principle in the intervening twenty-
four years. See, e.g., Cosby v. Commonwealth, 147 S.W.3d 56, 59 (Ky. 2004); Meade v.
Commonwealth, No. 2006-CA-20-MR, 2006 WL 2848050, at *2 (Ky. Ct. App. Oct. 6, 2006);
Rowan v. Commonwealth, No. 2003-CA-690-MR, 2004 WL 1857152, at *1 (Ky. Ct. App. Aug.
20, 2004). There were clear strategic reasons to avoid wasting time or valuable briefing space on
what was likely to be a losing issue. And Manns’ counsel raised the point immediately after the
Kentucky Supreme Court changed its mind. Because his counsel’s representation did not fall
below an “objective standard of reasonableness,” Manns’ Sixth (and Fourteenth) Amendment
rights remained intact. Strickland, 466 U.S. at 688.
For these reasons, we affirm.
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HELENE N. WHITE, Circuit Judge, dissenting. I respectfully dissent.
Like the district court, the majority rejects Manns’s ineffective assistance of trial counsel
claim on the ground that Commonwealth v. Grubb, 862 S.W.2d 883 (Ky. 1993), was no longer
good law when Manns went to trial. This conclusion is based on the syllogism that Grubb was
based on the single-impulse test adopted in Ingram v. Commonwealth, 801 S.W.2d 321
(Ky. 1990); the Ingram test was abandoned for the Blockburger1 test in Commonwealth v. Burge,
947 S.W.2d 805 (Ky. 1996); charging multiple offenses does not violate Blockburger; therefore,
the multiple charges did not violate Kentucky law and counsel was not ineffective for failing to
challenge the indictment or multiple convictions. I have no quarrel with the logic of the
majority’s position. The problem is that the Kentucky Supreme Court has never followed this
path, and has adhered to Grubb.
Ineffective Assistance of Trial Counsel (IATC)
After Grubb sold undercover police officers ten Percodan and two Dilaudid pills, both
Schedule II narcotics, in a single transaction, officers returned to Grubb’s residence with a search
warrant and recovered additional drugs. Grubb was convicted on four drug-trafficking counts.
862 S.W.2d at 884. The Kentucky Court of Appeals reversed the convictions on the two counts
that arose from the transactions already covered by other counts. The Kentucky Supreme Court
granted discretionary review and affirmed:
The Court of Appeals reversed the conviction of Counts 3 and 5 and held
the double jeopardy clause of the Kentucky Constitution forbids conviction of
more than one offense when all the drugs involved are contained (listed) within
the same statutory schedule of controlled substances. The issue articulated by the
Court of Appeals is whether multiple sentences for drug trafficking may be
imposed under the “compound consequences” prong of the Ingram test (arising
from Ingram v. Commonwealth, Ky., 801 S.W.2d 321 [1990]), when the
1
Blockburger v. United States, 284 U.S. 299 (1932).
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defendant has trafficked in different named substances but which are criminalized
in the same schedule (statute).
KRS 218A.060 and 218A.070 place[] the substances Percodan and
Dilaudid in Schedule II . . . . The language of the statutes reflects that the
legislature did not create a separate crime with respect to each forbidden
substance contained in the same schedule. Certainly a punishment must be fixed
clearly and without ambiguity and any doubt will be resolved against turning a
single transaction into multiple offenses. Bell v. United States, 349 U.S. 81
(1955).
....
A single sales transaction between the same principals at the same time
and place which violates a single statutory provision does not justify conviction or
a sentence for separate crimes, even though more than one item of a controlled
substance (of the same schedule) is involved.
Said otherwise, the simultaneous unlawful possession (sale) of the same
scheduled narcotic drugs giving rise to separate offenses results in fractionalizing
the statute. We would soon arrive at the threshold of declaring that a single
criminal transaction could be broken into multiple offenses based upon the total
number of pills that were recovered, a manifestly absurd result.
....
[] Ingram . . . made clear that [this court] has adopted a broader view of double
jeopardy [than the Commonwealth advocates]. Resultantly, Section 13 of the
Kentucky Constitution would permit the Commonwealth to carve out of a single
episode the most serious offense, but not to punish a single episode as a multiple
offense. In effect that case, as this one, presents a single impulse act having no
compound consequences. We have determined that it may be justifiable . . . to
impose separate punishments for the possession of different classes (schedules) of
drugs on the ground that different items clearly present different threats to society.
862 S.W.2d at 884–85.
In the instant case, the district court determined that because Ingram had been overruled,
Grubb no longer stood on solid footing:
Grubb did stand for the proposition, under Kentucky law, at least, that (as to the
statutory version in effect at the time of Grubb) one instance of trafficking in
various substances under the same schedule should not support multiple charges.
See id. at 884–85. Manns faced separate charges, in Counts 1 and 2, for
trafficking different controlled substances (but within the same schedule) on one
factual occasion. However, [Grubb] rested on Ingram v. Commonwealth,
801 S.W.2d 321, 324–25 (Ky. 1990). Kentucky overruled Ingram later that
decade in Commonwealth v. Burge, 947 S.W.2d 805, 811 (Ky. 1996). []
Kentucky, for double jeopardy analysis, dropped its single instance analysis in
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cases like Ingram and embraced the federal Blockburger analysis set forth in
Burge. [Hatcher v. Commonwealth, 310 S.W.2d 691, 697 (Ky. Ct. App. 2010)]
(“The Kentucky Supreme Court has overruled Ingram and adopted the ‘distinct
element’ test of Blockburger v. United States, 52 S. Ct. 180 (1932).”). Grubb
undoubtedly centered on Ingram. See Grubb, 862 S.W.2d at 887 (Wintersheimer,
J., dissenting) (“The majority chooses to base its decision on the double jeopardy
analysis provided by Ingram []”). Manns’s argument treats Grubb as definitive,
but by the time of his trial (and his RCr 11.42), Grubb no longer stood on solid
footing. This being the only argument presented, Manns fails to raise a Strickland
issue of substantial merit. Fair-minded jurists would not reasonably debate the
merit of an argument, eschewed by counsel, premised on a case of doubtful
continuing vitality.
PID 504–05 (Mag. J. Recommended Disposition, adopted by Dist. Ct.).
The problem with the district court’s and the majority’s reasoning is that not only has the
Kentucky Supreme Court never abandoned Grubb, it has approved it in the years since Ingram.
In Burge, which overruled Ingram’s single-impulse rule and adopted the Blockburger test, the
Kentucky Supreme Court observed that Grubb would have satisfied the Blockburger test:
In [Grubb], we cited Ingram in holding that a defendant could not be convicted of
selling multiple items of different controlled substances of the same schedule.
The same result could have been reached by application of the Blockburger “same
elements” test, since the sales all violated the same statute.
Burge, 947 S.W.2d at 810. Then, in 2011, fifteen years after Burge was decided, the Kentucky
Supreme Court cited Grubb in Jones v. Commonwealth, 331 S.W.3d 249, 251 n.1 (Ky. 2011),
explaining why Jones was charged with only one count for delivering two listed substances at the
same time. The Court explained: “The alprazolam and clonazepam purchased during the second
buy constituted only one transaction because they are both Schedule IV narcotics. See
Commonwealth v. Grubb, 862 S.W.2d 883 (Ky. 1993).” Further, Kentucky’s Criminal Practice
and Procedure Series continues to cite Grubb and repeat the proposition that “multiple sentences
for a single drug transaction of drug trafficking may not be imposed when the defendant has
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trafficked in different named substances which are criminalized in the same schedule.” 2 Thus, I
cannot agree that Grubb was no longer the law in Kentucky when Manns was tried.
Manns’s claim that trial counsel was deficient in failing to challenge the indictment is
meritorious. As for prejudice, counsel’s failure to object to the duplicative count resulted in
Manns being convicted of a third count and being sentenced to an additional and consecutive
twenty years; thus counsel’s performance prejudiced the trial’s outcome.
Ineffective Assistance of Appellate Counsel (IAAC)
Decided in 1984, Devore, 662 S.W.2d 829 (Ky. 1984), held that Ky. Rev. Stat. Ann.
§ 533.060(2) required that sentences for felonies committed while on parole run consecutively to
each other, in addition to the sentence for the paroled offense. Devore remained the law until it
was overruled in Peyton v. Commonwealth, 253 S.W.2d 504 (Ky. 2008), which held that the
newly imposed sentences must run consecutively to a paroled offense, but the sentencing court
has discretion to run the new sentences either concurrently or consecutively to each other.
253 S.W.2d at 511–12. Peyton became final while Manns’s appeal was pending before the
Kentucky Supreme Court.
Appellate counsel first challenged Devore in a petition for rehearing and/or extension
filed after the Kentucky Supreme Court affirmed Manns’s convictions. Appellate counsel
argued the court should reverse and remand for a new trial, or remand for resentencing in
accordance with Peyton, or allow the parties to brief and/or hear argument on the issues
presented in the petition for rehearing. PID 52. The Kentucky Supreme Court denied Manns’s
2
8 Kentucky Practice Series, Criminal Practice and Procedure § c14.16 n.3 (5th ed.) (updated
Nov. 2016) (citing both Burge and Grubb). Kentucky secondary sources recognize that Grubb is not one
of the seven cases overruled in Burge. See Trial Handbook for Kentucky Lawyers § 10:1 n. 23-31 (2016-
2017 ed.).
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petition for rehearing without comment: “The Petition for Rehearing filed by the Appellant,
Benji Manns, is DENIED.” PID 53.
A.
Manns’s habeas petition argued that appellate counsel was ineffective for failing to argue
that Devore incorrectly interpreted Ky. Rev. Stat. § 533.060(2) in initial briefing on direct appeal
to the Kentucky Supreme Court. On appeal, Manns asserts that although Peyton had not been
decided when Manns was sentenced, given trial counsel’s vigorous argument that the court had
discretion to impose a concurrent sentence, appellate counsel should have argued that Devore
was wrongly decided. Manns notes that the trial court invited an appeal of that issue when it
stated, “Mr. Manns certainly has the right to appeal that decision and maybe make new law but
based on the law we have now [Devore] is the reason for my decision.”
Further, Manns asserts that appellate counsel submitted her reply brief on May 5, 2008,
just seventeen days before Peyton was decided, and that appellate counsel therefore did not need
to wait until a petition for rehearing to request that Peyton be applied because she could have
asked to supplement her reply brief with additional law after Peyton was decided. See Appellant
Br. at 15.
B.
The majority concludes that appellate counsel was not ineffective for failing to challenge
Devore’s consecutive sentencing requirement because there was no reason to believe that the
Kentucky Supreme Court would overrule itself after twenty-four years, and counsel raised the
issue immediately after the Supreme Court changed its mind. As to the second point, the
Supreme Court decided Peyton on May 22, 2008, and that decision became final on June 12,
2008. The Kentucky Supreme Court denied Manns’s appeal on August 21, 2008, and counsel
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filed the motion for rehearing on September 10, 2008. Thus counsel had over two months to
seek leave to file a supplemental brief calling the court’s attention to Peyton and to trial
counsel’s repeated objections to the consecutive sentences. This was a crucial omission given
that the Kentucky Supreme Court will not consider an error raised for the first time in a petition
for rehearing:
That unraised issues are treated as waived is also why a petition for rehearing
would have likely been insufficient in this case, even though that is the ordinary
route for a party to challenge a portion of one of this Court’s opinions. The
rehearing rule itself specifically limits a petition for rehearing “to a consideration
of the issues argued on the appeal,” CR 76.32(b), “[e]xcept in extraordinary cases
when justice demands it,” id. As a result, error raised for the first time in a
petition for rehearing will not be considered. See Reed v. Reed, 457 S.W.2d 4
(Ky. 1969); Commonwealth, Dept. of Highways v. Thomas, 427 S.W.2d 213, 217
(Ky. 1967); Herrick v. Wills, 333 S.W.2d 275, 276 (Ky. 1959). Thus, even if
Johnson had raised this issue in a petition for rehearing, his failure to raise it in
the original briefs would have amounted to a waiver.
Johnson v. Commonwealth, 450 S.W.3d 707, 713 (Ky. 2014).
Manns received three consecutive twenty-year sentences under circumstances where trial
counsel argued for concurrent sentences and the trial court declared itself bound by Devore.
Given that the issue was clearly preserved and a favorable ruling would have resulted in a
resentencing that might have reduced Manns’s sentence, appellate counsel should have at a
minimum, sought leave to add a claim under Peyton before the Kentucky Supreme Court decided
Manns’s appeal. Competent appellate counsel should keep abreast of relevant appellate court
decisions issued between briefing and decision. See ABA Model Rules of Professional Conduct
1.1 (“A lawyer shall provide competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the
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representation.”) and 1.3 (“A lawyer shall act with reasonable diligence and promptness in
representing a client.”).3
For these reasons, I conclude that Manns’s ineffective assistance claims are substantial.
On his IATC claim, Manns is entitled to have his conviction and sentence for one of the two
counts related to the February 9, 2005 buy vacated; on his IAAC claim, Manns is entitled to
resentencing because the state trial judge had discretion to run the sentences on the remaining
two convictions either concurrently or consecutively with each other.
3
Kentucky adopted the ABA Model Rules of Professional Conduct in 1989. See
https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_profession
al_conduct/alpha_list_state_adopting_model_rules.html. Ky. Rules of Professional Conduct, SCR
3.130(1.1), comments (5) and (6) provide, “Competent handling of a particular matter includes inquiry
into and analysis of the factual and legal elements of the problem . . . ” and “To maintain the requisite
knowledge and skill, a lawyer should keep abreast of changes in the law and its practice . . .”
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