Opinion
NO. 2018-CA-000042-MR
03-06-2020
KENDRICK D. CHERRY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Kendrick D. Cherry, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE TIMOTHY C. STARK, JUDGE
ACTION NO. 01-CR-00323 OPINION
AFFIRMING
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BEFORE: ACREE, COMBS, AND MAZE, JUDGES. ACREE, JUDGE: Kendrick Cherry, pro se, appeals the Graves Circuit Court's order denying his request for CR 60.02(f) post-conviction relief. We affirm.
Kentucky Rules of Civil Procedure.
In January 2004, Cherry was convicted of murder and tampering with physical evidence by the Graves Circuit Court. The Kentucky Supreme Court affirmed his conviction. Cherry v. Commonwealth, No. 2004-SC-000143-MR, 2005 WL 3131611 (Ky. Nov. 23, 2005).
In December 2006, Cherry filed a motion in Graves Circuit Court claiming ineffective assistance of counsel under RCr 11.42 but the motion was denied. When he appealed the denial to this Court, we affirmed. Cherry v. Commonwealth, No. 2008-CA-001363-MR, 2012 WL 512399 (Ky. App. Feb. 17, 2012).
Kentucky Rules of Criminal Procedure. --------
In March 2009, Cherry filed his first CR 60.02 motion which was denied. He again appealed to this Court. When he failed to file a brief, this Court issued a show cause order allowing Cherry to explain his failure to file a brief. He made no response. A month later, his appeal was dismissed.
In this current appeal, Cherry is appealing the circuit court's denial of his second CR 60.02 motion. This time, Cherry says the issue is "whether the Graves Circuit Court['s] (Judge Daughaday['s]) removal of all of the African-American persons from the jury panel that ultimately found the Appellant guilty and sentenced the Appellant to a life sentence, violated the Appellant's Due Process Rights."
Although Cherry never cites the case, this is a classic claim under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Cherry could have presented this claim on direct appeal but did not. His RCr 11.42 appeal included "grounds that he had received ineffective assistance of counsel at trial and that he had been denied an impartial jury." Cherry, 2012 WL 512399, at *1. That is, Cherry could have, and may have, brought this Batson challenge already.
It is well-established that "CR 60.02 was never meant to be used as just another vehicle to revisit issues that should have been included or could have been included in prior requests for relief." Foley v. Commonwealth, 425 S.W.3d 880, 884 (Ky. 2014) (citing Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983)). The rule is not intended to afford individuals an additional opportunity to relitigate issues that have already been presented in an earlier direct appeal or collateral attack or to present new issues that could have been raised in those proceedings. McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997); RCr 11.42(3). And CR 60.02 should only be used to provide relief when the movant demonstrates why he or she is entitled to the special, extraordinary relief provided by the rule. Gross, 648 S.W.2d at 856. Finally, claims under CR 60.02(f), such as Cherry's, must be raised within a reasonable time.
Cherry has met none of the requirements for raising these issues on a subsequent motion for relief under CR 60.02. His argument that the trial court erroneously denied his CR 60.02 motion with regard to his claim of error, effectively under Batson, 476 U.S. 79, 106 S. Ct. 1712, is without merit.
CONCLUSION
For the foregoing reasons, the Graves Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Kendrick D. Cherry, pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky