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Court of Appeals of Kentucky.


NO. 2010-CA-000427-MR

Decided: March 11, 2011

BEFORE:  DIXON AND MOORE, JUDGES;  ISAAC, Double SENIOR JUDGE. BRIEFS FOR APPELLANT:  Carlos Faulkner, pro se Green River Correctional Complex Central City, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General Susan Roncarti Lenz Assistant Attorney General Louisville, Kentucky



Carlos Faulkner appeals pro se from a Kenton Circuit Court order which denied his fourth motion to vacate judgment and set aside his sentence made pursuant to Kentucky Rules of Criminal Procedure (RCr 11.42).   Faulkner argues that he received ineffective assistance of counsel on his initial RCr 11.42 motion, which was filed in 1996.   We affirm for the following reasons:  (1) there is no right to counsel in post-conviction proceedings;  (2) Faulkner's motion is procedurally barred because it raises issues that could have been raised in his prior motions;  and (3) this Court has already rendered an opinion which addressed his substantive allegations of ineffective assistance of counsel in entering his guilty plea.

In 1993, after entering a plea of guilty to murder, burglary in the first degree and to being a persistent felony offender in the first degree, Faulkner was sentenced to life imprisonment without the possibility of parole for twenty-five years on the murder conviction, and twenty years on the burglary conviction, enhanced to life due to his status as a PFO I.

In 1996, Faulkner filed his first RCr 11.42 motion, alleging ineffective assistance of counsel in entering his guilty plea.   The motion was denied, and the circuit court also found that the allegations made in the motion were not grounded in fact or supported by the record.   On January 28, 1997, Faulkner and his attorney were sanctioned and ordered to pay $350.00 and $150.00, respectively.   Faulkner filed a bar complaint against his attorney who was privately admonished by the Kentucky Bar Association.   Faulkner's attorney did not appeal from the denial of the RCr 11.42 motion.

The alleged deficiencies of this attorney form the basis of Faulkner's argument in his current appeal.   This is not a cognizable claim because there is no right to effective post-conviction counsel.

In Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991), the United States Supreme Court held that “[t]here is no constitutional right to an attorney in state post-conviction proceedings.   Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.” (citations omitted);  See also Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989).

Bowling v. Commonwealth, 981 S.W.2d 545, 552 (Ky.1998).

Faulkner filed a second RCr 11.42 motion in 2001 and attempted to file a third in 2006.  RCr 11.42(10) requires a motion to be filed “within three years after the judgment becomes final[,]” unless the movant can prove “that the facts upon which the claim is predicated were unknown to the movant and could not have been ascertained by the exercise of due diligence[.]”  RCr 11.42(10)(a).   Faulkner's fourth motion was, therefore, procedurally barred, as it was filed sixteen years after the judgment in his case became final and he has not alleged nor shown that the facts upon which its claims are predicated were unknown to him.

Finally, Faulkner's arguments regarding his post-conviction counsel are moot because any substantive claims which his attorney could have raised on appeal have already been addressed and resolved by this Court.   The denial of Faulkner's second RCr 11.42 motion was appealed to this Court, which determined that it was procedurally barred as a successive motion.  Faulkner v. Commonwealth, 2003 WL 22025865 (Ky.App.2003) (2002-CA-002345-MR).  The Court nonetheless, “in the interest of justice,” considered the merits of Faulkner's allegations.   The opinion addresses at length and in some detail the six substantive arguments raised by Faulkner, which related to ineffective assistance of counsel in entering his guilty plea.   The Court concluded that none of these arguments had merit.   That opinion has become the law of the case and cannot be challenged.  “The law of the case doctrine is ‘an iron rule, universally recognized, that an opinion or decision of an appellate court in the same cause is the law of the case for a subsequent trial or appeal however erroneous the opinion or decision may have been.’ ”  Brooks v. Lexington-Fayette Urban County Housing Authority, 244 S.W.3d 747, 751 (Ky.App.2007) (quoting Union Light, Heat & Power Co. v. Blackwell's Adm'r, 291 S.W.2d 539, 542 (Ky.1956)).

On the same grounds, Faulkner is not entitled to the appointment of post-conviction counsel or an evidentiary hearing.   An evidentiary hearing “is only required when the motion raises an issue of fact that cannot be determined on the face of the record.   To do this, the court must examin[e] whether the record refuted the allegations raised.”  Parrish v. Commonwealth, 272 S.W.3d 161, 166 (Ky.2008) (internal citations and quotation marks omitted).   No such issues of fact have been raised by Faulkner.   His motion was procedurally barred by the terms of RCr 11.42 and by the operation of the doctrine of the law of the case.

The Kenton Circuit Court order denying Faulkner's RCr 11.42 motion is therefore affirmed.