Opinion
Civil Action No. 3:05CV-P196-C.
August 19, 2005
FINDINGS OF FACT CONCLUSIONS OF LAW AND RECOMMENDATION
INTRODUCTION
This habeas corpus action is brought by Kentucky prisoner Roy Lee Woods. On January 26, 1996, Woods was sentenced to life imprisonment following a jury trial that resulted in his conviction for two counts of wanton murder, trafficking in a controlled substance, and criminal mischief in the first degree. Woods now argues that the Supreme Court of Kentucky unreasonably applied the clearly established precedent of Jackson v. Virginia, 443 U.S. 307 (1979) when it affirmed his conviction on two counts of wanton murder.
In essence, Woods maintains that his conduct on the evening of February 8, 1995, even when viewed in a light most favorable to the prosecution, could not reasonably be construed to manifest extreme indifference to human life or to have caused the deaths of Clara and Robert McDonald, two innocent drivers who were killed when Woods and his Co-Defendants were attempting to flee by automobile from drug buyers who had just cheated out of $27,000. Because the Kentucky Supreme Court did not unreasonably apply the Jackson standard to affirm Woods' wanton murder convictions, the Magistrate Judge shall recommend that the motion of the respondent to dismiss with prejudice be granted.
FINDINGS OF FACT
The material facts of this case are not disputed. The parties agree with the detailed recitation of the facts found in the opinion of the Supreme Court of Kentucky on direct appeal inGraves v. Commonwealth, 17 S.W.3d 858 (Ky. 2000). These findings are presumed to be correct pursuant to 28 U.S.C. § 2254(e)(1) absent clear evidence to the contrary. Neither party has offered such evidence. In fact, neither party has requested an evidentiary hearing. Therefore, the Court adopts the following statement of the facts rendered by the Kentucky Supreme Court atGraves, 17 S.W.3d at 861-62, whereat the Court writes:
Appellant Francis Gerald Thomas desired to purchase one kilogram of cocaine for $27,000.00 and asked Kenneth Furman to assist him in arranging the purchase. Furman contacted Aaron McDuffie, who in turn contacted Appellant Roy Lee Woods, who agreed to obtain the cocaine, sell it to Thomas, and share some of the profits with Furman and McDuffie. Arrangements were made to consummate the transaction on February 8, 1995 at Trixie's Lounge on Preston Highway in Louisville. Woods and McDuffie, along with Appellant Avery Graves, arrived at Trixie's in a vehicle driven by Woods. Thomas and Furman arrived at Trixie's in a vehicle driven by Thomas. McDuffie testified that he, Woods and Graves encountered Thomas and Furman at a pay phone inside Trixie's, and that he, Woods and Graves all directed Thomas and Furman to follow them to the parking lot. Woods and Thomas went to Thomas's vehicle; McDuffie, Graves and Furman went to Woods's vehicle. Graves got into the driver's seat and McDuffie got into the front passenger seat of Wood's vehicle. Meanwhile, Thomas delivered $27,000.00 to Woods, who returned to his vehicle and placed the money in its trunk. He and McDuffie then gave Furman $500.00 as part payment of Furman's share. When Furman inquired, "]w]here's the dope," Woods replied that he had given it to Thomas. Graves, with McDuffie still in the front passenger seat and Woods in the back seat, then drove the Woods vehicle out of the parking lot and north on Preston. When Furman returned to Thomas's vehicle, Thomas inquired,"[w]here's the dope," and Furman replied, "I thought you had it." Thomas, with Furman in the front passenger seat, then drove his vehicle out of the parking lot and north on Preston in hot pursuit of Woods's vehicle.
The two vehicles sped north on Preston Street, then on Shelby Street. There was evidence that the vehicles were traveling between 70 and 100 miles per hour in a 35 miles per hour zone and that gunfire was exchanged between Woods and Thomas. Ultimately, Graves drove the Woods vehicle through a red light at the intersection of Shelby and Eastern Parkway and broadsided a vehicle owned and being operated by Clara McDonald. McDonald and her son, Robert McDonald, were killed and McDonald's vehicle was substantially damaged by the collision. Thomas drove his vehicle through the same red light and collided with yet another vehicle owned and being operated by Kenneth Weathers, causing substantial damage to Weathers's vehicle. Both accidents were witnessed by a police officer who arrived on the scene within moments. Graves was pinned behind the steering wheel of Woods's vehicle and was arrested at the scene. Thomas, Woods, Furman and McDuffie all fled the scene. Woods was discovered hiding in a nearby White Castle Restaurant. McDuffie, Thomas and Furman escaped, but were arrested later. The $27,000.00 was recovered from the trunk of Woods's car, but no cocaine was found.
Graves, Thomas and Woods appeal their subsequent convictions in the Jefferson Circuit Court of trafficking in a controlled substance in the first degree, wanton murder (two counts), and criminal mischief in the first degree. The operators of the two vehicles, Graves and Thomas, were also convicted of wanton endangerment in the first degree, speeding, and disregarding a traffic control device. Thomas was additionally convicted of failure to stop and render aid (leaving the scene of an accident). All three appellants were sentenced to life in prison for each of the wanton murder convictions and to lesser penalties for the other offenses, each sentence to run concurrently with the others.Id.
Based on these facts, Woods argued on direct appeal that the evidence presented at trial was insufficient under Jackson v. Virginia, 443 U.S. 307, 319 (1979), and related Kentucky decisions, to support his conviction for the wanton murders of the two innocent victims, driver Clara McDonald and her passenger son, Robert McDonald. In this respect, Woods argued that he was merely a passenger in the fleeing vehicle driving by Co-Defendant Avery Graves, who disregarded a traffic light on Preston Highway, thereby causing the fatal crash. Given the definition of wanton murder found at KRS 507.020(1)(b) and the definition of "wantonly" under KRS 501.020(3), Woods insisted that his mere participation in the offense of trafficking in a controlled substance in the first degree simply did not establish that he wantonly engaged in conduct that created a grave risk of death to Clara and her son Robert, who were killed in the automobile accident that occurred 4.5 miles from the scene of the failed cocaine deal.
The Supreme Court of Kentucky in a 4-to-3 opinion rejected this argument (DN p, Appx. pp. 142-152). In its decision, the Court first summarized the instruction on wanton murder given by the trial court. The Court then continued to discuss the evidence offered at trial in the context of the same instruction. The Court found this evidence sufficient for a reasonable juror to return a guilty verdict. To quote the Kentucky Supreme Court:
[5] The jury was instructed that each appellant could be convicted of the wanton murders of the McDonalds if the jury believed beyond a reasonable doubt that he was a participant in the commission of the offense of first-degree trafficking in a controlled substance, and that his participation in that offense constituted wanton conduct which created a grave risk of death to another under circumstances manifesting extreme indifference to human life, and which resulted in the deaths of the McDonalds. The jury convicted all three appellants of two counts of wanton murder under that instruction.
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A reasonable jury could (and obviously did) conclude from the facts of this case that the cocaine transaction was still ongoing when Woods's vehicle driven by Graves collided with the McDonald vehicle. One of the primary theories advanced by the appellants in defense to the charges of first-degree trafficking was that the drug transaction was never completed. A clear inference from the evidence presented in this case is that Thomas's purpose in chasing after and shooting at the occupants of the Woods vehicle was to complete that transaction by obtaining the cocaine for which he had paid Woods $27,000.00; and that Graves's and Woods's actions in fleeing from and shooting at the occupants of the Thomas vehicle were inextricably intertwined with Thomas's efforts to complete the transaction. Thus viewed, the high speed chase and the exchange of gunfire were but circumstances involved in the method of "perpetration or attempted perpetration" of the ongoing drug transaction. Bennett, supra, at 326; and that conduct provided the element of aggravated wantonness necessary to convict all three appellants of the wanton murders of the McDonalds.Graves, 17 S.W.3d at 862-63.
Three Justices dissented from this opinion. Id. at 866-69. Woods' petition for a rehearing was denied by order entered on June 15, 2000 (DN 9, Appx., p. 153). His subsequent petition for certiorari was denied by order of the United States Supreme Court on November 6, 2000. (Id. at p. 154).
Woods filed a motion to vacate the judgment of conviction pursuant to Kentucky Rule of Criminal Procedure (R.Cr.) 11.42. The trial court denied his motion to vacate by order entered on April 30, 2002 (DN 9, Appx., pp. 213-15). Woods then took an appeal to the Kentucky Court of Appeals. The Court of Appeals affirmed the order of the trial court by an opinion entered on August 1, 2003 (Id. at pp. 271-83). On August 18, 2004, the Supreme Court of Kentucky entered an order that denied Woods' motion for discretionary review. Woods filed a petition for federal habeas corpus relief on April 6, 2005 (DN 1). Respondent has now filed a motion to dismiss, or in the alternative, for summary judgment (DN 9). Woods has filed a response to the motion (DN 10). Accordingly, the matter is ripe for review.
CONCLUSIONS OF LAW
Woods raises only one issue for review in his petition. As noted, the sole question is whether his wanton murder convictions under KRS 507.020(1)(b) are supported by sufficient evidence under the test of Jackson v. Virginia, 443 U.S. 307 (1979). Woods maintains that the Supreme Court of Kentucky unreasonably applied theJackson standard as the proof viewed most favorably to the prosecution would not have permitted a reasonable juror to find that his conduct related to the failed drug deal created a grave risk that Clara and Robert McDonald would die, or that he caused their deaths merely be being a passenger in the fleeing vehicle.
Standard of Review
Consideration of Woods' argument is governed by the standards of the Anti-terrorism and Effective Death Penalty Act of 1966 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214. The provisions of the AEDPA are held to apply to all federal habeas petitions filed after the effective date of the Act on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 366 (1977); Macias v. Makowski, 291 F.3d 447, 451 (6th Cir. 2002). The standard of review under the AEDPA is now codified at 28 U.S.C. § 2254(d), which provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the State court proceeding.28 U.S.C. § 2254(d).
Application of the above language was discussed by the Supreme Court in Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Essentially, a state prisoner who hopes to obtain relief has two avenues of argument to pursue under the statute. His options arise under the "contrary to" clause or the "unreasonable application" clause. Under the "contrary to" clause of § 2254(d)(1), a federal court may grant the prisoner habeas corpus relief if the state court in affirming the prisoner's conviction arrived at a conclusion opposite to that reached by the Supreme Court on a question of federal constitutional law or the state court decided the prisoner's case differently than the Supreme Court decided the same constitutional issue on a set of materially indistinguishable facts. Id; Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Mason v. Mitchell, 320 F.3d 604, 614 (6th Cir. 2003); Moss v. Hofbauer, 286 F.3d 851, 858 (6th Cir.), cert. denied, 535 U.S. 1011 (2002). In this respect, the words "contrary to" have been held to mean "diametrically different, opposite in character or nature, or mutually opposed." Doan v. Brigano, 237 F.3d 722, 731 (6th Cir. 2001).
The "unreasonable application" clause of the statute permits a state prisoner to obtain habeas corpus relief if the state courts in affirming the prisoner's conviction identify the correct governing principle of constitutional law from the decisions of the Supreme Court, but unreasonably apply that principle to the facts at hand. Williams, 529 U.S. at 407-08; Campbell v. Coyle, 260 F.3d 531-539 (6th Cir. 2001), cert. denied, 535 U.S. 975 (2002). The key question for the Court when conducting an unreasonable application analysis is whether the challenged decision of the state court was objectively unreasonable, not whether the decision was simply erroneous or incorrect. Macias, 291 F.3d at 451; Martin v. Mitchell, 280 F.3d 594, 602-03 (6th Cir.), cert. denied, 123 S. Ct. 515 (2002). See Wiggins v. Smith, 123 S. Ct. 2527, 2534 (2003) (mere error by state court will not justify issuance of a writ; rather, the state court's application of federal law "must have been objectively unreasonable"). The independent judgment of the reviewing habeas court as to whether the decision of the state court is merely erroneous or incorrect is not determinative. McAdoo v. Elo, 346 F.3d 159, 165-66 (6th Cir. 2003); Rockwell v. Yukins, 341 F.3d 507, 512 (6th Cir. 2003) ( en banc).
When a federal habeas court applies either clause of § 2254(d), it must look only to the clearly established precedent of the United States Supreme Court. Lockyear v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 412; Bugh, 329 F.3d at 501. The federal court is bound to focus on the holding of the Supreme Court precedent as it existed at the time the state court decision became final, rather than mere dicta. Mason, 320 F.3d at 614. It may not rely on the decisions of the lower federal courts to formulate the constitutional law at issue, but may only look to the holdings of the Supreme Court. Doan, 237 F.3d at 729. At best, the decisions of the lower federal courts may indicate whether a constitutional right found in the precedent of the Supreme Court has been clearly established throughout the federal courts. Id.
Should the state court decision under review neglect to cite directly to the controlling Supreme Court decision that discusses the federal constitutional issue in question, the federal habeas court will review the state court decision to determine whether its substance is contrary to the jurisprudence of the Supreme Court. Clifford v. Chandler, 333 F.3d 724, 730 (6th Cir. 2003); Alley v. Bell, 307 F.3d 380, 397-98 (6th Cir. 2002). Finally, in conducting its habeas corpus review, the federal court must presume the factual findings of the state courts to be correct, absent clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1). The Jackson Standard.
The clearly established precedent of the Supreme Court that is now at issue is Jackson v. Virginia, 443 U.S. 307, 319 (1979). In Jackson, the Court addressed the due process standard to determine whether sufficient evidence has been offered during a criminal trial to support the conviction of a defendant by proof beyond a reasonable doubt. Id. at 318. The Court held that "the relevant question is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (original emphasis) In applying this standard, the federal habeas courts do not substitute their judgment for that of the jury, review the credibility of the witnesses, or weigh the evidence. United States v. Ostrander, 411 F.3d 684, 690-91 (6th Cir. 2005) (citing United States v. Walls, 293 F.3d 959, 967 (6th Cir. 2002)). "The relevant question simply is whether, after viewing all of the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Wood, 364 F.3d 704, 716 (6th Cir. 2004) (quoting Jackson v. Virginia, 443 U.S. 407, 319 (1979)).
The constitutional standard announced in Jackson has been incorporated into the law of Kentucky in Commonwealth v. Sawhill, 660 S.W.2d 3, 4 (Ky. 1983), in which the Supreme Court of Kentucky explained that:
The rule is that if from the totality of the evidence the judge can conclude that reasonable minds might fairly find guilt beyond a reasonable doubt, then the evidence is sufficient to allow the case to go to the jury even though it is circumstantial.
[T]his concept has been incorporated into the test used by the federal court in habeas corpus challenges to the sufficiency of the evidence in a state proceeding. See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979). A similar philosophy is part of the directed verdict test in a civil proceeding. Spivey v. Sheeler, Ky., 514 S.W.2d 667 (1974). The basis for the guideline lies in the belief that the weight and value given to the evidence is for the jury to decide.
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The evidence presented must be accepted a true. The credibility and weight to be given the testimony are questions for the jury exclusively.Sawhill, 660 S.W.2d at 4-5.
The majority decision of the Supreme Court of Kentucky does not directly discuss the Jackson standard, although Woods did citeJackson in his brief on direct appeal (DN 9, Appx. p. 22-23). The decision of the Kentucky Supreme Court, however, does apply the substance of the Jackson standard in that portion of its decision that addresses Woods' wanton murder argument. Graves, 17 S.W.3d at 862-63. Essentially, the Kentucky Supreme Court held that a reasonable juror could have concluded under the instruction on wanton murder, instruction no. 3, that Woods, during the course of trafficking in a controlled substance in the first degree, wantonly engaged in conduct that created a grave risk of death and that Clara McDonald and Robert McDonald's deaths were caused by Woods under circumstances that manifested his extreme indifference to human life. The Kentucky Supreme Court ultimately concluded that the high speed chase and running gun battle between Woods and Thompson were part and parcel of the efforts by Thompson to conclude the failed drug transaction and that this conduct provided the element of aggravated wantonness necessary to convict Woods and his two Co-Defendants of wanton murder.
The Law of Wanton Murder in Kentucky.
At the conclusion of Woods' trial, the trial court rendered the following instruction on wanton murder during the course of trafficking in a controlled substance in the first degree. The instruction reads as follows:
NO. 3 — WANTON MURDER
If you do not find the defendant, ROY LEE WOODS, JR., guilty under Instruction No. 1, and if you find him guilty of Trafficking in a Controlled Substance in the First Degree under Instruction No. 2, then you will find him guilty under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
a. That during the course of Trafficking in a Controlled Substance in the First Degree and as a consequence thereof, Clara McDonald was killed;
AND
b. That by so participating in the offense of Trafficking in a controlled Substance in the First Degree the defendant was wantonly engaging in conduct which created a grave risk of death to another and that Clara McDonald's death was caused under circumstances manifesting extreme indifference to human life.
If you find the defendant guilty under this Instruction, you shall say so by your verdict and no more.
(DN 9, Appx. p. 24).
Instruction 9 was essentially identical to Instruction 3 except that it substitutes Robert McDonald for Clara McDonald.
This instruction is based on the statutory law of Kentucky that defines murder, which is found at KRS 507.020. Under the statute,
(1) A person is guilty of murder when:
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(b) including, but not limited to, the operation of a motor vehicle under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.
(KRS 507.020(1)(b)). See Bennett v. Commonwealth, 978 S.W.2d 322, 326-27 (Ky. 1998) (discussing the origin of Kentucky's wanton murder statute). The Kentucky Penal Code defines the term "wantonly" at KRS 501.020(3), which provides:
A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the results will occur or that the circumstances exist. The risk must be of such a nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto.
Given the above law, the question now is whether the Supreme Court of Kentucky was objectively reasonable in deciding that the proof, viewed most favorably to the prosecution, would cause a reasonable juror to find Woods guilty of wanton murder in the deaths of Clara and Robert McDonald. Woods maintains that he was merely involved in a routine drug transaction that in no fashion involved conduct on his part manifesting extreme indifference to human life. Further, he insists that his mere status as a passenger in the vehicle driven by Graves could not have been found by any reasonable juror to have caused the tragic deaths of the mother and her son. These deaths, according to Woods, were completely unrelated to the underlying drug trafficking offense, or at a minimum, were so unforeseeable that involvement in the drug offense simply could not be found to manifest the nature of extreme indifference to human life required by the above statutes. In Woods' own words:
The point is, the risk of death from trafficking in cocaine, in the manner that death was caused in this case, was not so great or likely to occur that the conscious disregard of that risk manifests extreme indifference to the value of human life.
(DN 9, Appx. p. 33).
This Court must disagree. What occurred on the evening of February 8, 1995, was not only reasonably foreseeable, but indeed almost inevitable, given the circumstances of the failed drug transaction that culminated in a high-speed, running gun battle between Woods and Thompson along 4.5 miles of a major commercial traffic artery. When the facts are examined in their totality, it is clear that the application of the Jackson standard by the Kentucky Supreme Court was imminently reasonable.
Woods' participation in the drug transaction created a grave risk of death to every law-abiding driver who had the misfortune to be on Preston Highway that evening. Woods in fact created the entire tragic situation when he entered into the cocaine transaction knowing that he did not intend to deliver the drugs that Thomas had paid $27,000 to obtain. Woods accepted the $27,000 from Thomas completely aware that Furman would not receive the promised cocaine. Woods had to know that as soon as Furman returned to Thomas's car, Thomas would immediately realize that he had been cheated by Woods. Woods would have to flee the area as quickly as possible to get away with the drug money. Just as inevitably, Thomas would be, not only furious at being tricked, but also absolutely determined to recover either his $27,000 or the promised kilo of cocaine that he believed was located in Woods' fleeing automobile. Thomas was bound to chase after Woods in an effort to recover his money or obtain his part of the illicit bargain — the cocaine.
The events that unfolded were entirely predictable from the moment that Woods took Thomas's money without providing the cocaine. Woods would attempt to flee. The enraged Thomas would give chase, determined to catch Woods. Woods would urge Graves to drive faster in an effort to elude Thomas. Thomas would accelerate in kind until both vehicles were flying north on Preston Street at speeds between 75 to 100 miles per hour, weaving in and out of traffic and disregarding traffic control devices.
At the same time that Woods was urging Graves to drive faster, he was involved in a running gun battle. Woods shot out the rear window of his automobile and began returning fire at Thomas, who was shooting out the driver's side window of his own pursuing automobile. These facts, which are not disputed, hardly justify the characterization of Woods as a mere passenger in the automobile driven by Graves. In fact, Woods created the entire situation that occurred that evening by the manner in which he conducted the drug transaction by attempting to cheat Thomas and then, in total disregard of the safety of the traveling public, engaged in a running gun battle at speeds of 100 miles per hour on a well-traveled, major commercial highway in his attempt to escape. Cf. Johnson v. Commonwealth, 885 S.W.2d 951 (1994) (coal truck driver who killed pick-up truck driver in collision that occurred after coal truck possibly ran the red light did not manifest extreme indifference to human life so as to support wanton murder conviction, where defendant driver was not speeding and attempted to avoid accident by swearing and hitting the brakes on his truck).
It is true that three dissenting judges of the Kentucky Supreme Court chose not to accept the conclusion of the majority that Woods' wanton murder conviction was supported by substantial evidence. This disagreement does not mandate habeas corpus relief. In fact, even if the majority were wrong, so long as its application of Jackson was objectively reasonable, this Court may not grant habeas corpus relief. Nothing in the reasoning of the majority opinion appears to be objectively unreasonable, or even wrong, for that matter. The Kentucky Supreme Court applied the state law standard equivalent to theJackson standard, and the evidence presented at trial fully supported Woods' murder conviction in the deaths of Clara and Robert McDonald.
Although not determinative, the Court notes that other state courts have upheld similar murder convictions, or their state's statutory equivalent thereof, in situations that involved such high speed chases from a crime scene. See Holman v. State, 495 So.2d 115 (Ala.App. 1986); Hall v. State, 772 S.W.2d 317 (Ark. 1989). In each of these cases, the defendant was involved in the operation of an automobile at high speeds in complete disregard of the safety of the public under circumstances which the state courts found to manifest an extreme indifference to a grave risk of death to other persons. Woods' case is no less compelling that these other decisions. See generally Jeffrey Ghent, Annotation, Validity and Construction of "Extreme Indifference, " Murder Statute, 7 ALR 5th 758 (Lawyers Co-op 1992).
Statute of Limitations.
The only other issue briefly touched upon by the parties is whether Woods timely filed his petition for habeas corpus review. Examination of the response filed by Woods to the show cause order of the District Court reveals that his petition is timely filed when one considers the date upon which Woods filed his pro se motion for R.Cr. 11.42 relief. While the warden would have this Court find Woods' petition to be untimely, the warden concedes that to do so this Court must reject the controlling precedent in this circuit announced in Abela v. Martin, 348 F.3d 164, 172-73 (6th Cir. 2003) ( en banc), cert. denied, Caruso v. Abela, 541 U.S. 1070 (2004) ("[W]e hold that under § 2244(b)(2), the statute of limitations is tolled from the filing of an application for state post-conviction or other collateral relief until the conclusion of the time for seeking Supreme Court review of the state's final judgment on that application independent of whether the petitioner actually petitions the Supreme Court to review the case.").
This Court has no authority to overrule the Abela decision.Abela remains the law of this circuit until the Sixth Circuit, sitting en banc, holds otherwise. When Abela is applied, it is clear that Woods' petition satisfies the one-year statute of limitations of 28 U.S.C. § 2244(d).
Certificate of Appealability.
The final question is whether Woods is entitled to a certificate of appealability under 28 U.S.C. § 2253. Section 2253 and Fed.R.App.P. 22 require that a habeas petitioner obtain a certificate of appealability in order to obtain appellate review. A certificate of appealability may issue only if the petitioner makes a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). See generally Slack v. McDaniel, 529 U.S. 473, 482-83 (2000). Petitioner need not show that he necessarily will succeed on appeal. Miller v. Cockrell, 537 U.S. 322, 336 (2003). Instead, what is required is a threshold showing that jurists of reason could debate whether the petition should have been resolved in a different manner or if the issues presented were adequate to deserve encouragement to proceed further. Id. See also Porterfield v. Bell, 258 F.3d 484, 485 (6th Cir. 2001). If Petitioner satisfies this standard, then the District Court is empowered to issue such a certificate of appealability under § 2253(c)(1). Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063, 1070 (6th Cir. 1997),overruled in part on other grounds, Lindh v. Murphy, 521 U.S. 320 (1997).
Given the nature of the arguments raised and the procedural history of this case, this Court concludes that the issuance of a certificate of appealability as to the sole issue raised is appropriate under the circumstances. Reasonable jurists could, and did, debate whether the evidence at trial was sufficient to support Woods' conviction for wanton murder.
RECOMMENDATION
The Magistrate Judge having made findings of fact and conclusions of law recommends that the petition for habeas corpus relief be DISMISSED WITH PREJUDICE and that the petitioner be GRANTED a certificate of appealability on the sole issue raised concerning the sufficiency of the evidence to support his conviction for the wanton murders of Clara McDonald and her son, Robert McDonald.