Robert Foley v. Commonwealth of Kentucky ( 2020 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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RENDERED: OCTOBER 29, 2020
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0182-MR
ROBERT FOLEY APPELLANT
V. APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE MICHAEL O. CAPERTON, JUDGE
NO. 91-CR-00180
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Robert Foley (“Foley”), is no stranger to this Court. In the
twenty-seven years since he was sentenced to death for the murders of Rodney
and Lynn Vaughn, Foley has mounted numerous assaults on his conviction.
This appeal stems from a recent neuropsychological evaluation Foley received.
In light of a clinical psychologist’s expert opinion that he suffers from certain
cognitive impairments, Foley seeks to vacate his death sentences. Now, we
must decide whether the trial court erred in denying Foley’s motion to vacate or
set aside his sentences. Based on our review of the record and applicable law,
we hold that the trial court did not err and affirm its Order.
1
I. FACTUAL BACKGROUND1
This case arises out of the shooting deaths of Rodney and Lynn Vaughn
in August 1991. Foley shot and killed both brothers during a party at his
Laurel County residence. At trial, the Commonwealth presented eyewitness
testimony and circumstantial evidence identifying Foley as the killer and his
attempts to conceal the crime. The jury accepted this evidence and found
Foley guilty of two counts of murder. During the penalty phase of the trial,
Foley’s counsel did not introduce mitigating evidence. Based on the jury’s
recommendation, the trial court sentenced Foley to death for both murders.
This Court affirmed Foley’s convictions and sentences on direct appeal.2
Foley then sought post-conviction relief pursuant to RCr3 11.42, alleging, as is
relevant here, that trial counsel was ineffective due to his failure to adequately
investigate and to present mitigating evidence during the penalty phase of his
trial. Foley’s state post-conviction counsel did not include a claim that trial
counsel’s ineffectiveness consisted in part of a failure to seek appointment of a
neuropsychological expert.4 The circuit court denied post-conviction relief and
this Court affirmed.5 In the intervening years, Foley unsuccessfully sought
1 In light of the extensive procedural history of this case and the narrowness of
the issue at hand, we set out only an abbreviated recitation of the facts. For a more
comprehensive account, see Foley v. Commonwealth, 425 S.W.3d 880 (Ky. 2014);
Foley v. Commonwealth, 17 S.W.3d 878 (Ky. 2000); Foley v. Commonwealth, 942
S.W.2d 876 (Ky. 1997).
2 Foley, 942 S.W.2d at 890.
3 Kentucky Rule of Criminal Procedure
4 Foley’s state post-conviction counsel did seek funding for a ballistics expert
and a clinical social worker for assistance in the RCr 11.42 hearing. See Foley, 17
S.W.3d at 887.
5 Foley, 17 S.W.3d
2
federal habeas corpus relief6 and unsuccessfully pursued numerous CR7 60.02
motions.8
In 2018, Foley received funding to hire a neuropsychologist in connection
with a separate federal habeas case.9 Dr. Daniel Martell (Dr. Martell), a clinical
psychologist, evaluated Foley for over fifteen hours across two days. The
examination consisted of a review of prior case materials, an investigation into
Foley’s personal and medical history, and the evaluation of Foley’s performance
on numerous neuropsychological tests. Based on his examination, Dr. Martell
opined that Foley demonstrated a decline in cognitive abilities consistent with a
history of prior head injuries and “appeared to suffer from progressive chronic
traumatic encephalopathy (CTE).”10 Additionally, Dr. Martell opined that Foley
exhibited “multiple areas of impairment in frontal lobe executive functioning.”
Foley moved the Laurel Circuit Court to vacate his sentences due to this
report. Foley alleged that the report was “newly discovered evidence” sufficient
to grant relief under either CR 60.02, CR 60.03, RCr 10.02; and RCr 11.42(10).
6 Foley v. Parker, 488 F.3d 377 (Cir. 2007).
7 Kentucky Rule of Civil Procedure.
8 Foley v. Commonwealth, 425 S.W.3d 880 (Ky. 2014); Foley v. Commonwealth,
No. 2008–SC–000909–TG, 2010 WL 1005873 (Ky. March 18, 2010); Foley v.
Commonwealth, No. 2007-SC-000754-MR, 2009 WL 1110333 (Ky. Apr. 23, 2009);
Foley v. Commonwealth, No. 2002-SC-0222-TG, 2003 WL 21993756 (Ky. Aug. 21,
2003).
9 Foley is currently serving four additional death sentences related to four
murder charges arising out of a separate incident. See Foley v. Commonwealth, 952
S.W.2d 924 (Ky. 1997).
10 Foley Brief on Appeal, Ex. 2 at 58.
3
The circuit court denied the motion, finding it to be “procedurally improper,
time-barred, or otherwise defective.” Foley now appeals as a matter of right.11
II. ANALYSIS12
Foley seeks relief under three different procedural rules, but each shares
a basic premise: Dr. Martell’s expert opinion and report constitute newly
discovered evidence of such import that a reasonable juror, had he or she
known of it, would not have voted to impose the death penalty. The circuit
court’s Order purportedly declines to reach the merits. Instead, the court
dismissed each challenge on procedural grounds. The gist of the court’s
reasoning was that the report is not new evidence. Instead, that circuit court
found that the report rearticulates similar claims of head injuries that Foley
has raised for years. We consider these general arguments in context of the
specific procedural vehicles Foley raised.
A. CR 60.02
First, Foley seeks relief from his sentences under CR 60.02. On appeal,
we review the denial of a CR 60.02 motion for abuse of discretion.13 The test
for abuse of discretion is whether the trial court’s decision was “arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.”14 We will
11 KY. CONST. § 110(2)(b); Skaggs v. Commonwealth, 803 S.W.2d 573, 577 (Ky.
1990) (Court of Appeals has no authority to review any matter affecting the imposition
of death sentence).
12 Each of these issues is preserved via Foley’s omnibus motion to vacate. See
Foley Brief, Ex. 3 at 20-36.
13 Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky. 1996).
14 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations
omitted).
4
affirm the lower court’s decision unless doing so would be a “flagrant
miscarriage of justice.”15
In addition to the causes enumerated in subsections (a)-(e), CR 60.02(f)
provides that a court may relieve a party from its final judgment for “any other
reason of an extraordinary nature justifying relief.” Ordinarily, the rule
requires claims grounded on the discovery of new evidence to be brought
within one year.16 Our case law recognizes, however, that evidence discovered
outside of the one-year time limit may support a claim under 60.02(f) in certain
limited circumstances. 17 “In order for newly discovered evidence to support a
motion for new trial it must be of such decisive value or force that it would,
with reasonable certainty, have changed the verdict or that it would probably
change the result if a new trial should be granted.”18
A movant must bring an action under CR 60.02(f) “within a reasonable
time” of the entry of judgment. This determination is inherently fact-specific
and, as such, is best placed in the trial court’s discretion.19 While the distance
between final judgment and the motion is a relevant factor, a reviewing court
should consider the basis for the movant’s claim, when the information
15 Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
16 See CR 60.02(b).
17 See Foley, 425 S.W.3d at 886.
18 Jennings v. Commonwealth, 380 S.W.2d 729, 730 (Ky. 1963)(internal
quotations omitted).
19 See Gross, 648 S.W.2d at 858.
5
supporting such claim was discovered by the movant, and the reason behind
the delay in discovering the information and the filing of the motion.20
Further, Kentucky law expresses a strong aversion to successive post-
judgment motions.21 In the context of CR 60.02, a defendant must only raise
those claims which she could not have raised either on direct appeal, in a RCr
11.42 action, or in another CR 60.02 motion.22 Evidence discovered after the
conclusion of all prior proceedings, in a limited set of circumstances, may
provide an adequate basis for a subsequent CR 60.02 motion.
The trial court found that Foley’s motion was untimely and successive
because the facts underlying Dr. Martell’s opinion—Foley’s history of head
injuries—were known to Foley at the time of trial and could have been raised in
a prior proceeding. Effectively, the trial court found that Dr. Martell’s report
was not “newly-discovered.” In doing so, the trial court relied on our previous
opinion in this litigation concerning a similar CR 60.02 motion.23 In that
previous decision, this Court held that an expert opinion “cannot fit the
definition of newly-discovered evidence unless it is based on facts that were not
20 See e.g., Bedingfield v. Commonwealth, 260 S.W.3d 805 (Ky. 2008)(holding
that a CR 60.02 motion filed eight years after trial was timely when new DNA testing
methods gave rise to exculpatory evidence). By contrast, when the information
supporting a CR 60.02(f) motion was known to the defendant at trial or within one
year of final judgment, the reviewing court will find the motion to be time-barred. See
Foley, 425 S.W.3d at 884-886); see also, Stoker v. Commonwealth, 289 S.W.3d 592,
594-95 (Ky. App. 2009)(holding that trial court did not abuse its discretion when it
found that motion premised on facts known to defendant for ten years was untimely).
21See e.g. McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997); Gross,
648 S.W.2d at 853-56.
22 McQueen, 948 S.W.2d at 416.
23 Foley, 425 S.W.3d at 887.
6
previously known and could not with reasonable diligence have been
discovered.”24 There, we rejected on the merits a CR 60.02 motion premised on
a ballistic report that reexamined and reinterpreted previously known facts.25
Here, the trial court reasoned that Dr. Martell’s report was similar in
kind to the ballistics report. The trial court found that Martell’s opinion was
“derived from facts known to the [Foley] for his literally his entire life.”26
Moreover, the issue of Foley’s history of head injuries was previously raised in
his initial RCr 11.42 hearing, albeit without any medical reports supporting his
claims.27 In sum, the trial court concluded that this was not newly discovered
evidence of sufficient gravity to justify reopening Foley’s case.
Foley urges us to reject the comparison to the ballistics report. Instead,
he argues that this Court’s decision in Bedingfield supplies the more
appropriate analogy. There, this Court held that the presence of physical
evidence, discovered through DNA-testing methods not available at the time of
trial, that implicated another person for the commission of the crime in
question was grounds for a new trial.28 Foley claims that Dr. Martell’s
conclusions regarding his cognitive impairments arise out of newly-performed
psychological tests rather than a reexamination of Foley’s prior medical history.
Under Foley’s theory, Dr. Martell’s report supplies a basis for his conclusion
24 Id.
25 Id.
26 Foley Brief, Ex.1 at 102.
27 See Foley, 17 S.W.3d 878 (Ky. 2000).
28 See Bedingfield, 260 S.W.3d at 815.
7
independent of facts previously in the record, thereby distinguishing it from the
ballistics report.
While acknowledging that it is a somewhat close call, we do not
determine that the trial court abused its discretion. While Dr. Martell
performed an independent evaluation of Foley’s cognitive abilities as they stood
in 2018, Dr. Martell’s conclusions explicitly take into account Foley’s history of
head injuries. In his report, Dr. Martell opines that Foley’s decline in cognitive
abilities was “consistent with his history of multiple head injuries” and was
consistent with “progressive CTE.”29 While Foley never underwent
psychological testing before 2018, he first raised the issue of his head injuries
over 20 years ago in his initial state postconviction proceeding. So, while he
now possesses a new report claiming that he currently exhibits signs of
neuropsychological decline, it is not as if the possibility that Foley may suffer
from effects of head trauma could not have been raised in a previous
proceeding. In fact, it was raised. Therefore, on the facts of this case, we hold
that the trial court did not abuse its discretion in finding that Foley’s CR 60.02
motion was procedurally barred.
B. RCr 10.02 and 10.06
Foley advances a similar argument under RCr 10.02 and 10.06. RCr
10.02 permits a court to “grant a new trial for any cause which prevented the
defendant from having a fair trial, or if required in the interest of justice.”
Ordinarily, a motion for a new trial on the basis of newly discovered evidence
29 Foley Brief, Ex. 2 at 58.
8
may only be brought later than one year after the entry of judgment “if the
court for good cause so permits.” While the standards are not identical, “[a]n
extraordinary circumstance under CR 60.02(f) always establishes good cause
under RCr 10.06(1).”30 So each inquiry takes into consideration similar
factors, given differing weights. In this case, we do not find that distinction
controlling. Just as we determine that Dr. Martell’s report does not constitute
an extraordinary circumstance under CR 60.02, we similarly conclude that it
does not constitute good cause pursuant to 10.06.
C. RCr 11.42
Foley’s claim under RCr 11.42 (10) takes three alternative forms. To the
extent that Foley advances the same argument for relief under RCr 11.42 as he
maintains under CR 60.02, we find the motion to be procedurally improper.
Such a theory impermissibly elides the standard for relief under CR 60.02 and
RCr 11:42. Kentucky law is very clear the standards for relief under CR 60.02
and RCr 11.42 are distinct; one cannot simply repackage their 60.02 argument
in an 11.42 motion or vice versa.31
To the extent that Foley attempts to relitigate the effectiveness of counsel
in his initial post-conviction proceedings, his claims are procedurally barred.
He brings his current challenge under RCr 11.42(10), which imposes a three-
year period from final judgment during which a movant must bring their
30 Bedingfield, 260 S.W.3d at 811.
31 See Gross, 648 S.W.2d at 856 (“The structure provided in Kentucky for
attacking the final judgment of a trial court in a criminal case is not haphazard and
overlapping but is organized and complete.”)
9
claim.32 While the rule provides an exception for claims predicated on newly
discovered evidence, Foley already pursued a RCr 11.42 claim against trial
counsel. And RCr 11.42(3) provides that the motion to vacate “shall state all
grounds for holding the sentence invalid of which the movant has knowledge.”
Given that Foley’s prior history of head injuries was both known to him at that
time and actually litigated in his state postconviction hearing, he cannot now
raise that issue against trial counsel under the plain language of RCr 11.42(3).
But Foley anticipated our conclusion and offers a third way to consider
his 11.42(10) claim. He argues that if we find that he is procedurally barred
under 11.42(3) from asserting an ineffectiveness-of-trial-counsel claim, then
that procedural bar should be excused due to the ineffectiveness of his state
post-conviction proceedings counsel. While this theory is not currently
recognized under Kentucky law, Foley asks us to extend the holdings of
Martinez v. Ryan33 and Trevino v. Thaler34 to claims arising out of Kentucky
post-conviction proceedings. Specifically, he contends that this Court’s holding
in Bowling v. Commonwealth implicitly compels this result.35 This argument
requires unpacking.
Under the doctrine of procedural default, a federal habeas court will not
review the merits of claims that a state court declined to hear due to the failure
32 See RCr 11.42(10).
33 566 U.S. 1 (2012).
34 569 U.S. 413 (2013).
35 163 S.W.3d 361 (Ky. 2005).
10
of a prisoner to comply with a state procedural rule.36 The theory behind this
doctrine is that principles of federalism require federal courts to respect the
finality of state court judgments.37 However, this general rule has an
exception. Federal courts may invoke their equitable powers to excuse a
procedural default and hear the merits of a case if a prisoner can show cause
for the default and prejudice resulting from a violation of federal law.38
This Court has, on at least one occasion, looked to federal case law in
this area for support in fashioning equitable relief. In Bowling, this Court
utilized the federal cause-and-prejudice standard to decide if a prisoner’s
waiver of a constitutional claim should be excused.39 Specifically, the Court
considered whether the “miscarriage of justice” exception, which allows a
prisoner to maintain a merits-based challenge to a defaulted claim even if she
fails to show cause for the default, permitted them to consider the merits of the
prisoner’s claim.40 While this Court did not engage in an exhaustive analysis
on the applicability of that exception in state court proceedings, we did use the
federal analytical framework to guide the use of our own equitable discretion.
36 Martinez, 566 U.S. at 9 (citations omitted).
37 See Davila v. Davis, 137 S. Ct 2058, 2064 (2017).
38 See Martinez, 566 U.S. at 10 (citing Coleman v. Thompson, 501 U.S. 722, 750
(1991)).
39 163 S.W.3d at 372-373.
40Id. The “miscarriage of justice” exception allows a court to review the merits
of a procedurally defaulted claim even if the prisoner cannot show cause for the
default “where a constitutional violation has probably resulted in the conviction of one
who is actually innocent.” Id. (citing Coleman, supra, at 749-50).
11
For years, “[n]egligence on the part of a prisoner’s postconviction
attorney [did] not qualify as cause.”41 Martinez expanded this exception,
holding that in states where an ineffective-assistance-of trial-counsel claim
must first be brought in a collateral proceedings, the lack of state post-
conviction counsel or the ineffectiveness of state post-conviction counsel, under
the standard of Strickland v. Washington42, may serve as “cause” to excuse a
procedural default.43 The following year, the United States Supreme Court
further extended the exception to cover states, which, as a matter of procedural
design, deny a meaningful opportunity for prisoners to raise ineffective-
assistance-of-trial-counsel claims outside of collateral proceedings.44
With that background in mind, we now address Foley’s claim. Foley
argues that the Martinez/Trevino rule applies to our review of RCr 11.42
proceedings because we have already recognized the cause-and-prejudice
exception in Bowling. Since we have adopted this exception before Martinez
and Trevino, Foley contends that the subsequent expansion of the exception
brought about by those decisions holds sway over Kentucky courts. This is an
interesting question that deserves consideration in the appropriate case. But
this case is not that case.
41 Id. (citing Maples v. Thomas, 565 U.S. 266, 280 (2012)).
42 466 U.S. 668 (1984).
43 Martinez, 566 U.S. at 13-14.
44See Trevino v. Thaler, 569 U.S. 413 (2013). The Sixth Circuit held that
Kentucky’s state postconviction regime fall under the scope of Trevino. Woolbright v.
Crews, 791 F.3d 628 (2015).
12
Let’s assume that Martinez and Trevino apply. Under those cases, Foley
may establish “cause” to excuse a procedural default where: (1) his claim of
ineffectiveness-of-trial-counsel is “substantial” and (2) the cause consisted
either of the lack of state-postconviction-proceeding counsel or the
ineffectiveness of state-postconviction-proceeding counsel.45 Thus, the
ineffectiveness of state-postconviction-proceedings counsel is a necessary
condition for relief under Martinez and Trevino.46 Here, we are not convinced
that Foley can demonstrate that his counsel performed below constitutional
standards in the RCr 11.42 proceedings.
We have described Strickland as containing two prongs, both of which
must be met to sustain a claim of ineffective assistance of counsel: the
“performance” and “prejudice” prongs.47 To meet the “performance” prong, a
movant must show that “counsel’s representation fell below an objective
standard of reasonableness.”48 To meet the “prejudice” prong, a movant must
show “a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.”49
Here, Foley claims that his counsel in his RCr 11.42 proceedings
rendered ineffective representation due to their failure to adequately develop a
claim that trial counsel was ineffective in failing to present mitigating evidence
45 See Trevino, 569 U.S. at 423.
46 See Martinez at 16. (“When faced with the question whether there is cause for
an apparent default, a State may answer…that the attorney in the initial-review
collateral proceeding did not perform below constitutional standards.”).
47 See Gall v. Commonwealth, 702 S.W.2d 37, 39-40 (Ky. 1985).
48 Strickland, 466 U.S. at 687–88.
49 Id. at 694.
13
concerning Foley’s head injuries and their effect on his neuropsychological
well-being. Under the performance prong, this challenge poses two questions.
First, whether, under an objective standard of reasonableness, Foley’s post-
conviction counsel should have raised a claim that trial counsel was ineffective
for their failure to pursue neuropsychological testing in preparation for trial.
And second, whether Foley’s post-conviction counsel should have sought funds
for a neuropsychological expert for use at the RCr 11.42 hearing.
As to the latter question, we cannot find that Foley’s post-conviction
counsel erred in failing to request funds for psychological testing. We observe
that a claimant did not have a constitutional right to expert assistance in a
collateral attack proceeding at the time of Foley’s RCr 11.42 hearing.50 Nor do
they today. Importantly there is a “strong presumption” that an attorney’s
decision to pursue some claims and decline to pursue others is a tactical
choice.51 And “[r]are are the situations in which the wide latitude counsel
must have in making tactical decisions will be limited to any one technique or
approach.”52
Foley’s counsel requested funding for both a ballistics expert and a
clinical social worker and was denied on both counts. The decision to pursue
funding for experts to help develop what appears at the time to be stronger
50 See Foley, 17 S.W.3d at 886-87.
51 Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (“When counsel focuses on some
issues to the exclusion of others, there is a strong presumption that he did so for
tactical reasons rather than through sheer neglect.”).
52 Harrington v. Richter, 562 U.S. 86, 106 (2011)(citations omitted)(internal
quotations omitted).
14
claims is a reasonable tactical decision. At the time of the RCr 11.42
proceeding, numerous witnesses were available to recount tales of Foley’s
brutal upbringing.53 Additionally, there was a factual dispute about the nature
of the firefight. Compared to general allegations of previous head injuries,
numerous as they were, we cannot say that counsel’s choice to lend support to
what he or she determined to be stronger mitigating evidence was
constitutionally deficient performance.
Similarly, we cannot conclude that post-conviction counsel was
ineffective in failing to bring a claim of ineffective-assistance-of-trial-counsel
related to the failure to seek funding for a neuropsychological expert. Foley’s
post-conviction counsel did raise claims based on trial counsel’s failure to
adequately investigate and present mitigating evidence.54 As it relates to
evidence of head injuries, counsel challenged trial counsel’s failure to introduce
the testimony of several family members who recalled head injuries suffered by
Foley during his childhood. While this court rejected the mitigating force of
that testimony due in part to the absence of medical records supporting
trauma,55 we do not find that post-conviction counsel rendered ineffective
performance.
“Reliance on the harsh light of hindsight to cast doubt on [proceedings]
that took place” nearly two decades ago runs contrary to the Strickland
53 See generally Foley, 17 S.W.3d 878 (2000).
54 Id. at 883.
55 Id.
15
standard.56 We must evaluate counsel’s conduct in context of the time in
which he or she acted.57 In this case, post-conviction counsel raised over
twenty-six grounds for ineffective-assistance-of-trial counsel, including the
failure to introduce mitigating testimony regarding Foley’s head injuries at trial.
In light of these allegations, Foley’s counsel sought expert assistance to develop
the strength of the mitigation arguments concerning Foley’s background. From
the perspective of post-conviction counsel, there were surely a number of
claims and experts that he felt trial counsel might have pursued. However, an
attorney is entitled to filter activities that appear “distractive from more
important duties.”58 In this case, we cannot say that it was unreasonable to
confine the ineffective-assistance-of-trial-counsel claim to the failure to present
the testimony of family members as opposed to a psychological expert who may
or may not have been provided. While this calculus may change in light of
contemporary understanding, that is not the inquiry. Considering the record
before us, Foley’s state post-conviction counsel did not fail to meet the
performance prong of Strickland.
In sum, we do not need to reach the question of whether Martinez and
Trevino apply to Kentucky proceedings because, even if they did, Foley’s post-
conviction counsel provided constitutionally adequate assistance. As a result,
56 See Harrington 562 U.S. at 107.
57 Id.
58 Id. (citing Bobby v. Van Hook, 558 U.S. 4, 11, (2009)(per curiam)); accord
Haley v. Commonwealth, 586 S.W.3d 744 (Ky. App. 2019), review denied (Oct. 24,
2019)
16
Foley is procedurally barred from raising a new ineffectiveness of trial counsel
claim pursuant to RCr 11.42(3).
IV. CONCLUSION
In light of the facts of this case and the applicable standard of review, we
conclude that the trial court did not abuse its discretion in denying Foley’s
motion. As such, we affirm.
All sitting. All concur.
COUNSEL FOR APPELLANT:
David M. Barron
Assistant Public Advocate
Department of Public Advocacy
Michael J. O’Hara
O’Hara, Taylor, Sloan, & Cassidy
COUNSEL FOR APPELLEE:
Daniel Jay Cameron
Attorney General of Kentucky
Emily Bedelle Lucas
Assistant Attorney General
17