                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0141n.06

                                           No. 10-6343                                 FILED
                                                                                    Feb 08, 2013
                          UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

RODNEY DOUGLAS BECKHAM,                                  )
                                                         )
       Petitioner-Appellant,                             )
                                                         )        ON APPEAL FROM THE
               v.                                        )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE EASTERN
COOKIE CREWS, Warden,                                    )        DISTRICT OF KENTUCKY
                                                         )
       Respondent-Appellee.                              )
                                                         )

BEFORE: ROGERS and STRANCH, Circuit Judges, and PEARSON, District Judge.*

       ROGERS, Circuit Judge. Rodney Douglas Beckham was convicted in Kentucky state

court of murder and being a persistent felony offender and was sentenced to life imprisonment.

Beckham appealed directly to the Kentucky Supreme Court, arguing, among other things, that the

trial judge violated his Sixth Amendment right to counsel by prohibiting him from discussing his

ongoing testimony with his attorneys during a brief 20-minute period. The Kentucky Supreme

Court, however, rejected this argument. Beckham then filed a habeas petition, reasserting his

Sixth Amendment claim, but the district court denied Beckham relief. Beckham now appeals,

arguing that the Kentucky Supreme Court’s adjudication of his Sixth Amendment claim involved

an unreasonable application of clearly established federal law as stated by the United States

Supreme Court in Geders v. United States, 425 U.S. 80 (1976), and Perry v. Leeke, 488 U.S. 272




       *
        The Honorable Benita Pearson, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 10-6343
Beckham v. Cookie Crews, Warden
(1989). Beckham however is not entitled to habeas relief because the Kentucky Supreme Court’s

application of Geders and Perry to the facts of this case was not objectively unreasonable.

       In June 2004, the cleaning staff at an Econo Lodge found a badly beaten woman in a

room at the motel. The woman eventually died from her injuries. After an extensive police

investigation, a grand jury in Boone County, Kentucky indicted Beckham, charging him with one

count of murder and one count of being a first-degree persistent felony offender.

       On November 29, 2005, a multi-day jury trial began during which Beckham testified in

his own defense. On December 6, 2005, at approximately 4:35 p.m., while the state was cross-

examining Beckham, the trial judge adjourned court for an overnight recess and told Beckham:

“you cannot speak to your attorneys or anyone about this case overnight.” Resp. App’x at 14.1

Beckham agreed and neither he nor his attorneys objected to the judge’s order.

       At approximately 8:26 a.m. the next morning, after the judge had taken the bench but

before cross-examination resumed, the judge met with the attorneys for both sides to discuss jury

instructions, including whether to instruct the jury on lesser-included offenses. Id. at 17.

Beckham’s attorneys asked for permission to consult with Beckham “about these items, and . . .

about other things.” Id. at 22. The judge granted this request but admonished the attorneys not

to talk to Beckham “about his testimony in this case, because the Commonwealth has the

opportunity to cross-examine him without being coached by his counsel.” Id. at 23. The judge



       1
          Although there is some dispute between the parties over whose transcripts are properly
before this court, Beckham does not challenge the accuracy of the transcript provided by the Warden.
Moreover, any differences between the parties’ transcripts are immaterial for purposes of this appeal.

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Beckham v. Cookie Crews, Warden
explained that “[t]he idea is that . . . the testimony comes from the person and not from their

counsel.” Id. at 24. Beckham’s attorneys objected to the judge’s instruction, saying “if

[Beckham] asks us questions about his testimony or things, I think that we should be able to

answer his questions. And it goes to the right to counsel . . . . I would object that . . . we

shouldn’t be limited in any way to talk to our client.” Id. The judge responded that he was not

trying to limit Beckham’s right to counsel; rather, he was treating Beckham like every other

witness. Id. at 24-25. The judge then adjourned court at approximately 8:44 a.m. and, for

approximately 20 minutes, Beckham was permitted to consult with his attorneys about matters

other than his ongoing testimony. Id. at 17, 33. The judge then resumed the trial at

approximately 9:04 a.m. and the state finished cross-examining Beckham. Id. at 34.

       The jury eventually found Beckham guilty of murder and being a persistent felony

offender. In accordance with the jury’s recommendation, the judge sentenced Beckham to life

imprisonment.

       Beckham appealed his case directly to the Kentucky Supreme Court and argued, among

other things, that the trial judge violated his Sixth Amendment right to counsel. R. 9-8, Page ID

# 192-96. Although the judge issued two orders regarding Beckham’s ability to consult with his

attorneys—one in the afternoon of December 6 prohibiting Beckham from “speak[ing] to your

attorneys or anyone about this case overnight,” and one in the morning of December 7 barring

discussion about Beckham’s testimony—Beckham only complained about the latter order, which

he characterized as being issued “before trial recommenced and thus still during the overnight

break.” Beckham then discussed two relevant United States Supreme Court cases—Geders v.

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Beckham v. Cookie Crews, Warden
United States, 425 U.S. 80 (1976), in which the Court held that a trial judge’s order completely

prohibiting a defendant from consulting with his attorney during a 17-hour overnight recess

between his direct- and cross-examination violated his Sixth Amendment right to counsel, and

Perry v. Leeke, 488 U.S. 272 (1989), in which the Court held that a trial judge’s order completely

prohibiting a defendant from consulting with his attorney during a 15-minute mid-afternoon

recess between his direct- and cross-examination did not violate his Sixth Amendment rights.

Ultimately, Beckham argued that the trial judge ran afoul of Geders, and thus his Sixth

Amendment rights, by prohibiting him from discussing his ongoing testimony with his attorneys

during the approximately 20-minute break between the end of the initial morning conference and

the resumption of trial.

       In a 4-3 opinion, the Kentucky Supreme Court rejected Beckham’s Sixth Amendment

claim. Beckham v. Commonwealth, 248 S.W.3d 547, 553 (Ky. 2008). The court discussed

Geders and Perry and noted that “Beckham contends that the trial court’s act of barring his

counsel from discussing his ongoing testimony is reversible error under Geders.” Id. The court

then said:

               We reject Beckham’s argument because Geders involved a trial court’s
       complete denial of a defendant’s right to consult with his attorneys during an
       overnight recess. By contrast, the case at hand involves a trial court’s permitting
       the defendant to have contact with his attorneys during an overnight recess while
       limiting that contact by telling the attorneys to not discuss their client’s ongoing
       testimony. So the situation in the case before us is different from the blanket
       prohibition on attorney-client contact condemned in Geders. As the Court held in
       Perry, “we do not believe the defendant has a constitutional right to discuss [his]
       testimony while it is in process.” All the trial judge did in the case at hand was
       attempt to minimize the risk that Beckham would get “coaching tips” before the
       resumption of his cross-examination. Since the trial judge’s actions attempted to

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Beckham v. Cookie Crews, Warden
       protect the integrity of the proceedings and did not impermissibly limit all
       attorney-client contact during the waning minutes of the overnight recess, we hold
       that the trial court’s admonition to counsel did not abridge Beckham’s Sixth
       Amendment right to counsel.

Id. at 553-54 (footnote omitted).

       Beckham then filed a 28 U.S.C. § 2254 habeas petition in federal district court. R. 1,

Page ID # 1. Once again, Beckham did not address the trial judge’s order completely prohibiting

him from consulting with his attorneys between the adjournment on December 6 and the

reconvening of court the next morning; rather, Beckham only complained about the judge’s order

on the morning of December 7 prohibiting him from discussing his ongoing testimony with his

attorneys during a 20-minute break. Id. at 26. Beckham argued that “the Kentucky Supreme

Court’s decision that [he] was not denied access to counsel in violation of his Sixth Amendment

rights was an unreasonable application of clearly established federal law as stated by the United

States Supreme Court” in Geders and Perry. Id. at 26-29.

       The magistrate judge recommended that the district court deny Beckham’s petition,

reasoning that the Kentucky Supreme Court “correctly looked to Geders and Perry to resolve the

Sixth Amendment right to counsel claim,” and “held that Geders was distinguishable in that the

facts presented in this case did not show the same type of ‘blanket prohibition on attorney-client

communication’ as was evident in Geders.” R. 30, Page ID # 820-21. The magistrate judge also

stated that the Kentucky Supreme Court “correctly upheld the judge’s prohibition from

discussing [Beckham’s] testimony, in light of the holding in Perry that a defendant does not have

a ‘constitutional right to discuss his testimony while it is in process.’” Id. at 821. The magistrate


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Beckham v. Cookie Crews, Warden
judge accordingly concluded that the Kentucky Supreme Court’s “decision was not contrary to or

an unreasonable application of clearly established federal law.” Id.

       The district court adopted the magistrate judge’s recommendation and denied Beckham’s

habeas petition, but also issued him a certificate of appealability on his Sixth Amendment claim.

R. 33, Page ID # 837. Beckham now appeals.

       There is some ambiguity as to which order is now under review. This stems from the

state supreme court’s characterization of the prohibitions imposed on Beckham and his attorneys.

The language it used—writing that “the trial court[] permitt[ed] the defendant to have contact

with his attorneys during an overnight recess while limiting that contact by telling the attorneys

to not discuss their client’s ongoing testimony,” Beckham, 248 S.W.3d at 553—appears to have

conflated two orders applying two different proscriptions.2

       But the state supreme court’s description and its use of the phrase “during an overnight

recess” do not mean that it passed on the constitutionality of the overnight order that completely

prohibited Beckham from consulting with his attorneys between the adjournment on December 6

and the reconvening of court the next morning. Indeed, Beckham failed to raise that issue on

direct appeal and later in his habeas petition. Beckham also conceded in his reply brief that he

“does not, in fact, assert a denial of his Sixth Amendment right to counsel during the overnight

recess.”


       2
         The court’s language mirrored the description Beckham presented in his brief to the court.
See R. 9-8, Beckham Br., at Page ID 196 (“the trial court conceded that counsel could talk to
Beckham during the overnight break, but wrongfully limited their conversation by saying they could
not talk about the on-going testimony”).

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Beckham v. Cookie Crews, Warden
       Although the overnight order appears to have infringed on Beckham’s Sixth Amendment

rights—because of its similarity in substance and effect to the order condemned in Geders—that

order was not among the issues that the state supreme court reviewed. Consequently, it is not a

proper focus of this appeal. Rather, as Beckham acknowledges, this case concerns only the trial

judge’s order prohibiting Beckham from discussing his ongoing testimony with his attorneys

during the approximately 20-minute break between the end of the initial morning conference and

the resumption of trial.

       We review the Kentucky Supreme Court’s decision—that the morning order did not

violate Beckham’s Sixth Amendment rights—under a highly deferential standard. Our task is

not to determine whether the Kentucky Supreme Court’s decision was right or wrong. Instead,

under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we must decide

whether the Kentucky Supreme Court’s adjudication of Beckham’s Sixth Amendment claim

“resulted in a decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law.” 28 U.S.C. § 2254(d)(1). As the United States Supreme Court has

explained:

       an unreasonable application of federal law is different from an incorrect
       application of federal law. Indeed, a federal habeas court may not issue the writ
       simply because that court concludes in its independent judgment that the relevant
       state-court decision applied clearly established federal law erroneously or
       incorrectly. Rather, that application must be “objectively unreasonable.” This
       distinction creates a substantially higher threshold for obtaining relief than de
       novo review. AEDPA thus imposes a highly deferential standard for evaluating
       state-court rulings, and demands that state-court decisions be given the benefit of
       the doubt.

Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (citations and quotations omitted).

                                               -7-
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Beckham v. Cookie Crews, Warden

       Notwithstanding this highly deferential standard, Beckham argues that the Kentucky

Supreme Court unreasonably applied clearly established federal law as stated in Geders and

Perry. In Geders, the Court held that a trial judge’s order completely prohibiting a defendant

from consulting with his attorney during a 17-hour overnight recess between his direct- and

cross-examination violated his Sixth Amendment right to counsel. 425 U.S. at 91. In Perry,

however, the Court held that a trial judge’s order completely prohibiting a defendant from

consulting with his attorney during a 15-minute mid-afternoon recess between his direct- and

cross-examination did not violate his Sixth Amendment rights. 488 U.S. at 280. The Perry

Court distinguished Geders by reasoning:

               The interruption in Geders was of a different character because the normal
       consultation between attorney and client that occurs during an overnight recess
       would encompass matters that go beyond the content of the defendant's own
       testimony—matters that the defendant does have a constitutional right to discuss
       with his lawyer, such as the availability of other witnesses, trial tactics, or even
       the possibility of negotiating a plea bargain. It is the defendant’s right to
       unrestricted access to his lawyer for advice on a variety of trial-related matters that
       is controlling in the context of a long recess. The fact that such discussions will
       inevitably include some consideration of the defendant’s ongoing testimony does
       not compromise that basic right. But in a short recess in which it is appropriate to
       presume that nothing but the testimony will be discussed, the testifying defendant
       does not have a constitutional right to advice.

Id. at 284 (citation omitted).

       Giving the Kentucky Supreme Court the benefit of the doubt, its application of Geders

and Perry to the facts of this case was not objectively unreasonable. The court cited Geders and

Perry and carefully articulated their holdings and rationales. The court then found that, unlike

Geders, which involved a blanket prohibition on attorney-client contact, “the case at hand


                                                -8-
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Beckham v. Cookie Crews, Warden
involves a trial court’s permitting the defendant to have contact with his attorneys during an

overnight recess while limiting that contact by telling the attorneys to not discuss their client’s

ongoing testimony.” Beckham, 248 S.W.3d at 553. The Kentucky Supreme Court majority

emphasized this point, saying that the trial judge “did not impermissibly limit all attorney-client

contact during the waning minutes of the overnight recess.” Id. at 554. Given this undisputed

factual difference between Geders and the present case—in terms of both the length of the recess

(Geders, long; here, short) and the breadth of the prohibition (Geders, total; here, only testimony-

related)—it was not unreasonable for the Kentucky Supreme Court to conclude that the trial

judge did not abridge Beckham’s Sixth Amendment right to counsel by preventing him from

discussing his ongoing testimony with his lawyers during the relevant 20-minute morning break.

       Perry lends further support to the Kentucky Supreme Court’s decision. Since the Perry

Court upheld a trial judge’s order completely prohibiting a testifying defendant from consulting

with his attorney during a brief 15-minute recess, it was reasonable for the Kentucky Supreme

Court to uphold the trial judge’s order here, which only prohibited Beckham from consulting

with his attorneys about his ongoing testimony during a brief 20-minute recess. This conclusion

is controlled by Perry’s holding that a trial judge “may permit consultation between counsel and

defendant during such a [brief] recess, but forbid discussion of ongoing testimony,” and the

Court’s favorable citation to a case finding “no violation of right to counsel when judge barred

defendant from discussing testimony, but permitted other contact with attorney, during 30-minute

recess while defendant on stand.” Perry, 488 U.S. at 284 n.8 (citing People v. Stronger, 432

N.E.2d 348, 351 (Ill. App. Ct. 1982), aff’d in part and rev’d in part on other grounds, 449

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Beckham v. Cookie Crews, Warden
N.E.2d 1326 (Ill. 1983)). Thus, Beckham’s claim that the Kentucky Supreme Court

unreasonably applied Perry is unavailing.

       Ultimately, as Chief Justice Roberts has said, “AEDPA prevents defendants—and federal

courts—from using federal habeas corpus review as a vehicle to second-guess the reasonable

decisions of state courts.” Renico, 130 S. Ct. at 1866. The Kentucky Supreme Court’s judgment

was not unreasonable.

       For the foregoing reasons, we affirm the judgment of the district court.




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