                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0039n.06

                                             No. 09-6483

                           UNITED STATES COURT OF APPEALS                                   FILED
                                FOR THE SIXTH CIRCUIT                                   Jan 14, 2011
                                                                                  LEONARD GREEN, Clerk

In re: DANNY CHAMBERS,                 )
                                       )
      Movant.                          )                            OPINION
                                       )
_______________________________________)


Before: SILER, MOORE, and GRIFFIN, Circuit Judges.

        KAREN NELSON MOORE, Circuit Judge. Danny Chambers (“Chambers”), a Kentucky

prisoner convicted of murder and sentenced to life imprisonment, seeks authorization from this

court, pursuant to 28 U.S.C. § 2244(b), to file a second or successive habeas petition with the district

court. Chambers also moves to expand the record. Because Chambers has not met the applicable

statutory requirements, we DENY Chambers’s motion for authorization to file a second or

successive 28 U.S.C. § 2254 petition. Accordingly, we also DENY as moot Chambers’s motion to

expand the record.

                                        I. BACKGROUND

        On November 23, 1992, Chambers was indicted by a grand jury in Lee County, Kentucky

on one count of murder. The indictment charged that, on or about October 4, 1992, Chambers

intentionally caused the death of Larry Allen by shooting him with a pistol in violation of Kentucky

Revised Statute § 507.020. Chambers pleaded not guilty to the murder charge and was tried by a

jury in May 1994. The jury convicted Chambers of murder, but was unable to agree on an

appropriate penalty.    After the jury deadlocked, the trial court sentenced Chambers to life
No. 09-6483
In re: Danny Chambers


imprisonment. Final judgment was entered on July 13, 1994. On November 22, 1995, the Kentucky

Supreme Court affirmed Chambers’s conviction. Chambers then unsuccessfully pursued state post-

conviction relief.

       On November 25, 1998, Chambers filed a habeas petition in federal court pursuant to 28

U.S.C. § 2254, raising various claims. The district court denied relief, but this court reversed and

remanded for consideration of Chambers’s claims of ineffective assistance of counsel. Chambers

v. Million, 16 F. App’x 370, 374-75 (6th Cir. 2001). After an evidentiary hearing before a magistrate

judge, the district court denied habeas relief, adopting the findings of the magistrate judge that

Chambers’s trial counsel was not ineffective. We affirmed.

       Chambers now moves for an order authorizing the district court to consider a second or

successive petition for a writ of habeas corpus. In his motion to file a second or successive habeas

petition, Chambers claims that: 1) his trial was fundamentally unfair because two jurors discussed

the case with non-jurors prior to the verdict, 2) the grand jury was not fair and impartial because the

grand-jury foreperson, Elizabeth Hollon, was the wife of the prosecutor, Tom Hollon; and 3) the trial

court violated his due-process rights and his right to a trial by jury under the Fourteenth and Sixth

Amendments when the trial court sentenced him to life imprisonment after the jury deadlocked

during the penalty phase of his trial. Chambers also moves to expand the record to include a CD-

ROM of a recorded telephone conversation regarding the alleged juror misconduct.

       Chambers has pursued these claims in state-court proceedings. On November 5, 2005,

following the denial of his first habeas petition, Chambers filed a motion in the Lee Circuit Court


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In re: Danny Chambers


to correct, vacate, or set aside the judgment pursuant to Kentucky Rule of Civil Procedure (“CR”)

60.02, arguing that the trial court erred in sentencing him to life imprisonment after the jury was

unable to agree on a recommended sentence. The circuit court denied Chambers’s CR 60.02 motion.

The Kentucky Court of Appeals affirmed on the grounds that the sentencing error should have been

raised in Chambers’s direct appeal. In the alternative, the court held that, even if Chambers’s claim

had been properly brought via CR 60.02, Chambers offered no legal authority in support of his claim

that the trial judge could not have sentenced him to the maximum available sentence without a jury

recommending that sentence, and, furthermore, that he had not raised his claim within a “reasonable

time.” Chambers v. Commonwealth, No. 2006-CA-000607-MR, 2006 WL 3112914, at *2 (Ky. Ct.

App. Nov. 3, 2006). On January 18, 2007, the Kentucky Supreme Court denied review.

       On June 4, 2007, Chambers filed in state court a motion for a new trial pursuant to CR

60.02(e) or (f), claiming juror bias and misconduct during his trial, and arguing that he was unduly

prejudiced because the grand-jury foreperson was the wife of the prosecutor. The circuit court

denied the CR 60.02 motion. The Kentucky Court of Appeals affirmed, holding that the circuit court

did not abuse its discretion when it determined that the claim of juror bias and misconduct was not

brought within a reasonable time, and that, with respect to the grand-jury bias claim, Chambers had

not shown that the indictment signed by the wife of a prosecutor impacted “the validity of the

proceeding.” Chambers v. Commonwealth, No. 2007-CA-001484-MR, 2008 WL 1116905, at *2

(Ky. Ct. App. Apr. 11, 2008). The court held further that the grand-jury bias claim “could have been




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In re: Danny Chambers


reasonably investigated at a much earlier date.” Id. It is unclear from the record whether Chambers

appealed this decision to the Kentucky Supreme Court.

        Chambers asserts the juror misconduct, grand-jury bias, and sentencing claims in his present

motion. As to the allegations of juror misconduct, Chambers claims that, in a telephone conversation

with a Mr. Donnie Tutt, Chambers’s half-brother, which was recorded on April 28, 2007 and is the

subject of his motion to expand the record, Chambers learned for the first time that, during his trial,

two jurors discussed the case with non-jurors. Chambers submits an affidavit from Tutt in which

Tutt states that he “personally heard CLAY DOOLEY, the Jury Foreman, say that Danny Chambers

was nothing but trouble when Danny worked where Clay Dooley was the Supervisor for the drop-out

program.” Second § 2254 App. at 2 (Tutt Aff.). Chambers also claims that Tutt overheard a juror

and a non-juror discussing Chambers and the trial before the verdict was rendered. Tutt states in his

affidavit that, “Linda Tipton told Carol Mattingly that she (Linda) didn’t know what to do about the

murder trial. Carol then told Linda that she (Linda) needed to give Danny some time because of

what Danny had done and because Danny went around threatening people with guns” and “because

all Danny did was lay around drinking and stuff.” Id. at 2-3. The otherwise-typed affidavit includes

a handwritten notation, initialed “DT,” which states, “Not sure of all this[.] I heard some of this[.]

It has been years since all of this[.]” Id. at 2. Although not included in Tutt’s affidavit, Chambers

asserts that Tutt was also present when, before the trial, Mattingly told Tipton that Chambers had

raped Mattingly in the past, and that, in light of this conversation, Tipton should not have been on

the jury.


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In re: Danny Chambers


       As to Chambers’s allegations of grand-jury bias, Chambers asserts that, when Chambers was

indicted, the grand-jury foreperson, Elizabeth Hollon, was married to Tom Hollon, one of the

prosecutors in his case. In support of this claim, Chambers submits the grand-jury indictment, dated

November 23, 1992, which includes the signature of Elizabeth Hollon as grand-jury foreperson, and

pages from the Lee Circuit Court docket listing the involvement of Tom Hollon as a special

prosecutor in pre-trial matters in March, April, and May of 1993. Chambers claims that he did not

learn of the relationship until 2007 when he was shown a newspaper photograph of Tom and

Elizabeth Hollon. Chambers also submits the undated newspaper photograph and an affidavit from

Phillip Lanham stating that he is Tom Hollon’s second cousin and that the individuals in the

photograph are Tom Hollon and his wife, Elizabeth.

       Lastly, Chambers claims that the trial court did not have jurisdiction to sentence Chambers

after the jury deadlocked at the penalty phase, and that the trial court “relied on the wrong state

statute” to sentence him. Second § 2254 Pet. at 25. Chambers asserts that, after the first jury was

unable to agree on a penalty, the trial court “was required by law to empanel another jury to conduct

another penalty phase trial for the purpose of sentencing the Petitioner.” Id. at 26. According to

Chambers, in a capital case, a trial court in Kentucky cannot sentence a defendant unless a jury has

sentenced the defendant.

                 II. SECOND OR SUCCESSIVE HABEAS APPLICATION

       We cannot authorize the filing of a second or successive habeas corpus application unless

we determine that Chambers has made a prima facie showing that his claims meet the requirements


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In re: Danny Chambers


of 28 U.S.C. § 2244(b). Chambers did not raise the claims in the instant motion in his first § 2254

petition. A claim not presented in a prior application must be dismissed unless:

       (A)    the applicant shows that the claim relies on a new rule of constitutional law,
              made retroactive to cases on collateral review by the Supreme Court, that was
              previously unavailable; or

       (B)
              (i)    the factual predicate for the claim could not have been discovered
                     previously through the exercise of due diligence; and

              (ii)   the facts underlying the claim, if proven and viewed in light of the
                     evidence as a whole, would be sufficient to establish by clear and
                     convincing evidence that, but for constitutional error, no reasonable
                     factfinder would have found the applicant guilty of the underlying
                     offense.

28 U.S.C. § 2244(b)(2). Although Chambers’s allegations of juror misconduct and grand-jury bias

are troubling, we must deny Chambers’s § 2244 motion because his claims do not meet the stringent

§ 2244(b)(2) requirements. First, none of Chambers’s claims “rel[y] on a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme Court.”               28 U.S.C.

§ 2244(b)(2)(A). Second, Chambers does not allege facts that were not previously discoverable

through due diligence, and that “establish by clear and convincing evidence that, but for

constitutional error, no reasonable factfinder would have found [Chambers] guilty.” 28 U.S.C.

§ 2244(b)(2)(B).

       With respect to his claims of juror misconduct and grand-jury bias, Chambers does not rely

on any newly applicable rule of constitutional law, and he fails to meet the § 2244(b)(2)(B) criteria

for new evidence. Although Chambers asserts that he did not have personal knowledge of the


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In re: Danny Chambers


alleged juror misconduct, Chambers does not explain why he could not have discovered the

misconduct earlier through due diligence. Moreover, even if Chambers could make such a showing,

he fails to demonstrate that, but for the misconduct, no reasonable factfinder would have found him

guilty of murder. In spite of their impropriety, the alleged juror conversations do not bear upon

Chambers’s guilt or innocence.

       Chambers’s allegations of grand-jury bias suffer from the same defects. In light of Elizabeth

Hollon’s signature on the indictment, it is unclear why Chambers could not have discovered

previously the names and relationship of the grand-jury foreperson and the prosecutor. Nor does

Chambers show how the involvement of Elizabeth Hollon in the grand-jury proceedings casts doubt

on his guilt as proven at trial. A marital relationship between a member of the grand jury and a

prosecutor does raise concerns about the fairness of the grand-jury proceedings against Chambers.

However, in the instant motion, Chambers does not present evidence that would prevent any rational

factfinder from finding him guilty, as required by § 2244(b)(2)(B)(ii).1

       With respect to his claim of sentencing error, Chambers does not present any new evidence.

Nor does he rely on a previously unavailable rule of constitutional law, made retroactively applicable

to cases on collateral review by the United States Supreme Court.2 Under Kentucky law, if a jury


       1
         We also note that, according to the trial-court docket, Tom Hollon was appointed as a
special prosecutor on or around March 26, 1993 for a pre-trial hearing held in May 1993. These are
the only listings on the docket sheet submitted by Chambers noting Hollon’s involvement in
Chambers’s case.
       2
        Chambers claims that the Kentucky Supreme Court held unconstitutional Ky. Rev. Stat.
§ 532.055, the provision under which the trial court had authority to impose sentence in the event

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No. 09-6483
In re: Danny Chambers


in a felony case is unable to agree on a sentence, “the judge shall impose the sentence within the

range provided elsewhere by law.” Ky. Rev. Stat. § 532.055(4) (1990). Five years after Chambers’s

conviction became final, and two years after Chambers filed his first habeas petition, the United

States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases

the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). We first

note that the Supreme Court has not held that Apprendi applies retroactively to cases on collateral

review. See In re Nailor, 487 F.3d 1018, 1023 (6th Cir. 2007).3 But, in any event, Chambers objects

to the imposition of life imprisonment, which did not require additional factfinding to be imposed

by the trial court. Kentucky Revised Statute § 532.025(3) provides that “the death penalty, or

imprisonment for life without benefit of probation or parole until the defendant has served a

minimum of twenty-five (25) years of his sentence” may not be imposed unless a “statutory

aggravating circumstance[] . . . is so found.” Ky. Rev. Stat. § 532.025(3) (1990) (emphasis added).

Chambers objects to his sentence of life imprisonment, which was not for life without benefit of


of jury deadlock. However, only one provision, Ky. Rev. Stat. § 532.055(2)(a)(6), which permits
impeachment by use of a juvenile adjudication, was held unconstitutional, and, moreover, it was held
by the Kentucky Supreme Court to violate the Constitution of the Commonwealth of Kentucky, not
by the United States Supreme Court to violate the United States Constitution. Manns v.
Commonwealth, 80 S.W.3d 439, 445-46 (Ky. 2002).
       3
         In the death-penalty context, the Supreme Court applied Apprendi to hold that a jury must
find the aggravating factors necessary for the imposition of the death penalty. Ring v. Arizona, 536
U.S. 584, 609 (2002). But Chambers did not receive a capital sentence, and Ring “does not apply
retroactively to cases already final on direct review.” Schriro v. Summerlin, 542 U.S. 348, 358
(2004).

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In re: Danny Chambers


probation or parole for twenty-five years, and which, accordingly, requires no finding of an

additional aggravating circumstance. Thus, Chambers’s sentence was within the power of the trial

court to impose without a jury.

                                      III. CONCLUSION

       Because Chambers has not met the requirements of 28 U.S.C. § 2244(b), we DENY

Chambers’s motion for authorization to file a second or successive 28 U.S.C. § 2254 petition in the

district court. Accordingly, we also DENY as moot Chambers’s motion to expand the record.




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