                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0656n.06

                                           No. 09-5840

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
                                                                                  Sep 07, 2011
LUVELL WEST,                                     )
                                                 )                          LEONARD GREEN, Clerk
       Petitioner-Appellant,                     )
                                                 )    ON APPEAL FROM THE UNITED
v.                                               )    STATES DISTRICT COURT FOR THE
                                                 )    WESTERN DISTRICT OF KENTUCKY
J. DAVID DONAHUE,                                )
                                                 )
       Respondent-Appellee.                      )



       Before: COOK, McKEAGUE, and GRIFFIN, Circuit Judges.


       COOK, Circuit Judge. This § 2254 habeas appeal raises one issue: whether petitioner

procedurally defaulted his ineffective-assistance-of-counsel claims. The district court said yes, on

the theory that the state courts applied an adequate and independent procedural rule—from Baze v.

Commonwealth, 23 S.W.3d 619 (Ky. 2000)—to bar post-conviction relief. We need not reach the

adequate-and-independent issue because we find that Baze no longer applies to petitioner’s claims:

they benefit, retroactively, from the abolishment of the applicable Baze rule. We therefore reverse

the district court’s judgment and remand for proceedings consistent with this opinion.


                                                 I.


       In 2004, Luvell West pleaded guilty to murder and several other charges in exchange for a

life sentence. West appealed after sentencing, claiming that trial counsel coerced his plea. The
No. 09-5840
West v. Donahue


Supreme Court of Kentucky rejected this claim and affirmed his conviction and sentence. West v.

Commonwealth, No. 2005-SC-000239-MR, 2006 WL 1360189, at *3 (Ky. May 18, 2006) (per

curiam).


        West next moved to vacate his conviction and sentence pursuant to Kentucky Rule of

Criminal Procedure (RCr) 11.42, alleging that his trial counsel’s multiple instances of ineffective

assistance rendered his plea involuntary. The trial court denied his motion.


        The court of appeals affirmed, deeming all of West’s ineffective-assistance claims

procedurally barred. West v. Commonwealth, No. 2006-CA-002488-MR, 2008 WL 2312616, at *3

(Ky. Ct. App. June 6, 2008). The court explained that because all of West’s claims attacked the

validity of his plea—the same underlying error he challenged in his direct appeal—he could and

should have raised them on direct appeal as alterative grounds to invalidate his plea. Id. (citing Baze,

23 S.W.3d at 626, 628). Because of this rule—the “Baze rule”—RCr 11.42 did not permit him

simply to recast his validity challenge as various ineffective-assistance claims. Id.


        After the Kentucky Supreme Court denied discretionary review of his collateral attack, West

filed a § 2254 habeas petition, see 28 U.S.C. § 2254, raising the same claims of ineffective assistance

of counsel. The district court found that West procedurally defaulted his ineffective-assistance

claims because the state courts relied on an adequate and independent state procedural rule to bar

them—the Baze rule—and it accordingly denied his petition. West v. Donahue, No. 5:08CV-00199-



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West v. Donahue


R, 2009 WL 1735297, at *1, *4 (W.D. Ky. June 17, 2009). We granted a certificate of appealability

on one issue: the procedural default.


                                                   II.


        Procedural default bars federal habeas review of a constitutional claim when (1) the petitioner

failed to comply with a state procedural rule that applies to the claim; (2) the state court enforced the

procedural rule against the claim; (3) the procedural rule constitutes “an adequate and independent

state ground upon which the state can rely to foreclose review” of the claim; and (4) the petitioner

cannot demonstrate cause for the default and prejudice from the constitutional error. Hutchinson v.

Bell, 303 F.3d 720, 735–36 (6th Cir. 2002).


        The parties focus on the third prong of the procedural-default test and dispute the adequacy

of the Baze rule. See, e.g., Parker v. Bagley, 543 F.3d 859, 861–62 (6th Cir. 2008) (discussing the

adequacy test). But the cases that West relies upon more appropriately challenge the first prong of

the procedural-default test and raise an interesting question: does the Baze rule, which the Kentucky

courts discarded during the pendency of West’s RCr 11.42 proceedings, continue to apply to his

ineffective-assistance claims and thus prevent habeas review? We think not.


        The legal landscape for post-conviction proceedings in Kentucky changed significantly

between the filing of West’s direct appeal and the conclusion of his collateral attack. At the time

of his direct appeal, Baze “bar[red] ineffective assistance of counsel claims related to issues that were


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West v. Donahue


raised on direct appeal.” Leonard v. Commonwealth, 279 S.W.3d 151, 157 (Ky. 2009). In other

words, the Baze rule prohibited a defendant from using RCr 11.42 to relitigate “[a]n issue raised and

rejected on direct appeal . . . by claiming that it amount[ed] to ineffective assistance of counsel.”

Id. (emphasis omitted) (internal quotation marks and citation omitted).            But in Martin v.

Commonwealth, the Kentucky Supreme Court—without mentioning Baze—reversed course and

allowed the defendant to present his ineffective-assistance claims in an RCr 11.42 motion despite

the lower courts rejecting, on direct appeal, his underlying claim of error. 207 S.W.3d 1, 3–5 (Ky.

2006); see also Leonard, 279 S.W.3d at 157. Several years later, Kentucky’s highest court

acknowledged that Martin overruled Baze; it further explained that, in certain circumstances, Martin

applies retroactively to the benefit of RCr 11.42 movants who assert ineffective-assistance claims

related to previously rejected claims of underlying error. Leonard, 279 S.W.3d at 158–62.


       This is one of those circumstances where Martin applies retroactively. A new collateral

attack rule applies retroactively only if the new rule is announced before “the order resolving a

collateral attack becomes final.” Id. at 160. Martin announced a new procedural rule, thus making

the date of that decision the proper point for determining retroactivity. Id. at 160–61; see also Cecil

v. Commonwealth, No. 2009-CA-000462-MR, 2010 WL 4739987, at *2 (Ky. Ct. App. Nov. 24,

2010) (allowing defendant, in light of Martin and Leonard, to raise formerly barred ineffective-

assistance claims in an RCr 11.42 motion); Bronk v. Commonwealth, No. 2007-CA-001724-MR,

2010 WL 2427424, at *2–3 (Ky. Ct. App. June 18, 2010) (same). And West, unlike the Leonard

defendant, benefits from the new rule. In Leonard, the defendant’s RCr 11.42 proceeding concluded

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West v. Donahue


long before the 2006 Martin decision. 279 S.W.3d at 162. West’s collateral attack, however,

became final in 2008 when the Kentucky Supreme Court denied discretionary review—long after

the Martin decision. See id. at 160. Because Martin trumps Baze here, the Baze rule no longer

applies to West’s ineffective-assistance claims and thus does not foreclose federal habeas review.


                                               III.


       Though West neglected to raise his ineffective-assistance claims in his direct appeal—and,

as a result, failed to comply with the Baze rule—that rule no longer bars his claims: the claims

benefit from the retroactive application of the new procedural rule announced in Martin. We

therefore reverse the district court’s judgment and remand for proceedings consistent with this

opinion.




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