Legal Filings

12.3.17: We are VERY excited to share the latest legal filing in John’s case. It’s a bit of a read, but we promise what’s below tells a shocking story of wrongful imprisonment and denial of basic American freedoms that will leave you with worries that the same could happen to your own father, brother, or son.

COMMONWEALTH OF KENTUCKY
FAYETTE CIRCUIT COURT
CRIMINAL BRANCH
EIGHTH DIVISION
CRIMINAL ACTION # 10-CR-930
JOHN CALVIN BUCKLEY, IV MOVANT
v.
COMMONWEALTH OF KENTUCKY RESPONDENT
NOTICE

Please take notice that on Friday, December 15, 2017 at 8:30 a.m., the undersigned will
make the following motion:

MOTION TO VACATE, SET ASIDE, OR CORRECT JUDGMENT AND SENTENCE PURSUANT TO RCr 11.42 AND SUPPLEMENT TO CR 60.02 ON GROUNDS OF REASONS OF EXTRAORDINARY NATURE JUSTIFYING RELIEF

Movant John Calvin Buckley, IV, by counsel, moves this Court pursuant to Ky. RCr. 11.42 to vacate, set aside, or correct the judgment and sentence rendered in the above case, and pursuant to this Court’s Order, provides supplemental briefing for his previously filed, pro se Ky. CR 60.02 Motion to grant relief on grounds of reasons of extraordinary nature justifying relief. In support of this Motion, Movant states:

  1. INTRODUCTION

This RCr 11.42 and CR 60.02 motion is regarding the decisions and behavior of Movant John Buckley’s trial attorney in the attorney’s service to Buckley. Buckley’s trial attorney’s performance was constitutionally deficient in that he did not properly prepare for trial, he did not examine the evidence, he did not prepare exhibits, and he did not prepare witnesses. In trial, the attorney also conceded the vast majority of the motions made by the Commonwealth and sustained by the court, failing to advocate for his client. As a direct result of of his trial attorney’s deficient performance, Buckley, who is not guilty, was convicted of rape, two counts of sodomy, assault, and unlawful imprisonment. He was ultimately sentenced to 34 years’ incarceration. Movant respectfully requests that this Court grant the current motion brought pursuant to RCr11.42 and CR 60.02 to vacate, set aside, or correct the judgment and sentence entered by this Court on grounds of reasons of extraordinary nature justifying relief.

  1. FACTUAL BACKGROUND

Buckley’s trial attorney did not provide adequate representation. In order to understand the extent of the prejudice suffered by Movant here, Buckley’s entire story must be examined.

  1. Buckley’s service to his country, aftermath, and coping mechanisms

Defendant John Calvin Buckley IV is a veteran who served his country for seven years until he was shot in action in 2006. (Video Log 22 8 12 CD 114 1-4 Trial, VR No. 4, Pt. 1: 7/12/12, 9:38:50-39:10 AM; 9:39:28 AM (entered into the record on 7/12/2012).) He received a purple heart and a bronze star for his service and sacrifice. (Id. at 9:39:12 AM.) However, when his shoulder became infected, the Colorado VA treated him poorly. (Id. at 9:39:40-40:20 AM.) He moved to Lexington in 2006 because of its VA hospital, and was able to obtain a prosthetic shoulder. (Id. at 9:38:38 AM; 9:39:30 AM; 9:40:30-40:48 AM.) The civilian world did not treat him like a veteran who had sacrificed so much of his physical and mental health for his country. Rather, acclimating back into civilian life after being a soldier became unbearable. (Id. at 9:51:28 AM.) When Buckley had two daughters, he did his best to support them through odd jobs, but he kept losing those jobs due to the multiple surgeries he needed for his shoulder. (Id. at 9:41:05-42:36 AM.) Worried that he would never be accepted in the civilian world, he went back overseas on a private security contract, and he stayed until October of 2009. (Id. at 9:42:36-43:35AM.)

Buckley’s shoulder was not the only thing damaged in the course of his service. Buckley suffered from post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI). (Statement of John Calvin Buckley IV in Application for Gubernatorial Pardon and/or Commutation of Sentence from John Calvin Buckley IV to Steve Beshear (10/27/2015, p. 7/123) (attached hereto as Exhibit A).) PTSD is an anxiety disorder that comes from overwhelming and dangerous events. (Michael S. Baker, Casualties of the Global War on Terror and Their Future Impact on Health Care and Society: A Looming Public Health Crisis, 179 Mɪʟɪᴛᴀʀʏ Mᴇᴅɪᴄɪɴᴇ 348, 350 (2014) (attached hereto as Exhibit B).) Veterans with PTSD experience flashbacks, emotional numbness, depression, insomnia, and angry outbursts. (Id.) Symptoms of TBI include headaches, confusion, changes in behavior, loss of memory, problems concentrating, and attention deficits. (Id.) TBI also impacts higher level executive function including organizing, planning, abstract
reasoning, solving problems, and making sound judgments. (Id.) Around a third of soldiers injured in the war on terror have TBI. (Id.) 280,734 soldiers were diagnosed from 2000 through
the second quarter of 2013. (Id.) However, that number is most likely under reported due to poor screening practices and problems with the VA. (Id.) Veterans with TBI and PTSD often have trouble holding down jobs, keeping their families together, and maintaining a place to live. (Id. at 351.) Substance abuse and risk-taking behaviors are also common. (Id. at 351.) These include drug abuse, drunk driving, and unprotected sex. (Id. at 351.) For Buckley, he did not resort to drug abuse, violence, or neglecting his family–he became involved with an alternative sexual lifestyle to cope with his physical and mental injuries. (App. for Gubernatorial Pardon at p.7/123.)

Buckley became involved with BDSM and polyamory to cope with his trauma. BDSM (bondage-discipline, domination-submission, sadomasochism) consists of three separate subtypes of alternative sexual behaviors. (Ali Hébert and Angela Weaver, Perks, Problems, and the People who Play: A Qualitative Exploration of Dominant and Submissive BDSM Roles, 24 Tʜᴇ Cᴀɴᴀᴅɪᴀɴ Jᴏᴜʀɴᴀʟ ᴏꜰ Hᴜᴍᴀɴ Sᴇxᴜᴀʟɪᴛʏ 49, 49 (2015) (attached hereto as Exhibit C).) In bondage and discipline, participants consensually use physical and psychological restraints during sex. (Id.) In domination and submission, one participant takes control while the other consensually gives up control. (Id.) In sadism and masochism, one partner enjoys causing pain and humiliation, and the other enjoys consensually receiving it. (Id.) One theme of domination and submission relationships is the exchange of power. (Id. at 53.) “Submissive” partners always have the power to say “no” and deny a “dominant” partner’s control. Polyamory is a subclass of consensual non-monogamy, a form of relationship in which the parties involved agree to have other sexual and romantic partners. (Rhonda N. Balzarini et al., Perceptions of Primary and Secondary Relationships in Polyamory, 12 PLᴏS ONE 1, 1 (2017) (attached hereto as Exhibit D).) It is estimated that approximately 4-5% of people in relationships are in consensual, non-monogamous relationships. (Id.) In one form of polyamory, two of the members of a triad are primary partners who perhaps are married or raise children together, and one member is a secondary partner who is less involved in the lives of the primary pair. (Id. at 2.)
While BDSM and polyamory may not seem desirable for many people, some people do choose to engage in those types of sex and relationships. For Buckley, BDSM and polyamory provided him with an outlet so that he could distract himself from the trauma he experienced overseas. (VR No. 4, Pt. 1: 9:53:13 AM; App. for Gubernatorial Pardon at p. 7/123.)

  1. Buckley’s previous encounters with Lexington police

When Buckley returned to Lexington in October of 2009, family was his first priority. He took his daughter and her mother shopping to buy furnishings for his daughter’s bedroom just three days after watching people burn alive. (App. for Gubernatorial Pardon at pp. 7/123-8/123.) While driving through the parking lot in the rain, a man abruptly stepped out into the road. (Id. at p. 8/123.) Buckley stopped with more than enough time and waved to the man. (Id.) The man immediately became very angry and approached Buckley’s truck, kicking the truck, attempting to yank open the driver-side door, and reaching behind his back. (Id.) Buckley’s training immediately kicked in, and he acted to protect his family from this aggressive man who appeared to be about to draw a weapon. (Id.) Buckley drew his legally-owned weapon that he was trained to safely use, and ordered the man down on the ground. (Id.) It turns out that the man was unarmed, and happened to be an off-duty police officer: Detective Steven Cobb. (Id.) Detective Cobb came after Buckley with the full force of the Commonwealth. (Id. at p. 9/123.) However, the grand jury saw that Buckley was acting within his rights, and Buckley was not indicted. (Id.) Cobb did not give up, even going so far as charging Buckley with impersonating a soldier at the grand jury when Buckley had every right to wear his uniform. (Id. at p. 10/123) Over the following months, Buckley was harassed by the Lexington-area police and pulled over numerous times. (Id.)

  1. Buckley’s relationship with JR

Buckley and JR, the alleged victim in his criminal rape case, met at a party in 2008. (VR No. 4, Pt. 1: 9:42:40 AM.) At first, they were not in a romantic relationship. They had casual, non-monogamous, BDSM-type sex, and did not hang out much outside of a sexual context. (VR No. 3, Pt. 2: 4:08:42-09:25 PM; App. for Gubernatorial Pardon at p. 11/123.) Their sexual interactions included having group sex with Angelica Moreno, Buckley’s former partner and coparent. (VR No. 4, Pt. 1: 9:46:05 AM; App. for Gubernatorial Pardon at p. 11/123.) Eventually, JR, Buckley, and Moreno entered into a triad relationship together in late 2009. (Id.) The type of BDSM Buckley, JR, and Moreno engaged in involved Buckley in a dominant role (“dom”) and JR and Moreno in submissive roles (“subs”). (VR No. 4, Pt. 1: 9:46:28 AM;
App. for Gubernatorial Pardon at p. 12/123.) Their relationship also involved aspects of sadomasochism and exhibitionism, with slapping, hair pulling, and recording sex. (VR No. 4, Pt. 1: 9:45:40 AM; 9:46:05 AM; VR No. 4, Pt. 2: 10:50:07-50:46 AM; App. for Gubernatorial Pardon at p. 12/123.) Throughout the relationship, Buckley and JR made several sex tapes, some involving Moreno, and some not. (Id.) JR would also send Buckley nude photos. (VR No. 4, Pt. 2: 10:19:48-20:22 AM; App. for Gubernatorial Pardon at p. 12/123.) Their relationship may have been nontraditional, but it worked for them, and they all consented to the arrangement.

  1. The May 29, 2010 incident, arrest, and indictment

The triad arrangement did not last, however. On May 28, 2010, a friend told Buckley that he had slept with JR. (VR No. 4, Pt. 1: 9:57:00 AM.) Buckley did not like hearing this news because he had not first heard it from JR. (VR No. 4, Pt. 1: 9:55:00-55:31 AM; 9:56:25-56:40 AM.) Buckley decided that he did not want to continue seeing JR after this discovery.

Buckley and JR texted back and forth that night. (VR No. 4, Pt. 1: 9:47:55 AM; VR No. 4, Pt. 2: 10:24:00-24:25 AM; 10:32:00-32:19 AM; 10:32:57 AM; 10:34:17-34:23 AM.) At some point during their messages, JR says she began to fear that Buckley would post the sex videos and nude photos involving her online. Buckley never threatened to do so, and did not do so. (VR No. 4, Pt. 2: 10:39:04-39:30 AM; 10:45:11-45:27 AM.) Buckley eventually stopped responding to JR’s texts. JR continued to text Buckley. She eventually threatened suicide. (VR No. 4, Pt. 2: 10:33:01 AM.) Buckley’s neighbors saw JR sitting in her car in front of Buckley’s house, waiting for Buckley to come home that night. (App. for Gubernatorial Pardon at p. 13/123.) Buckley did not come home that night, however. He dealt with his recent breakup by going home
with someone else, and did not return to his home until the morning. (Id.; VR No. 4, Pt. 2: 10:33:13-33:20 AM.) JR called and texted Buckley many times the night of the 28th into the morning of the 29th. (Id. at 10:32:50-32:57 AM; 10:33:22-33:26 AM.) Finally, he called her back around 10 AM the morning of the 29th. (Id. at 10:33:05 AM; 10:35:35 AM.) They talked, and then she came over. (Id. at 10:39:54-39:59 AM.) When JR arrived, Buckley was outside waiting for her in the hopes that they could talk without her coming inside. (Id. at 10:39:50-39:54 AM; 10:40:30-40:58 AM.) Buckley’s neighbors were outside. (Id. at 10:41:25 AM.) JR asked to go inside, saying she didn’t want the neighbors to see and hear them. (Id. at 10:42:00 AM.) Once inside, they talked for quite a while. (Id. at 10:43:19 AM.) While Buckley still did not want to get back together with JR, he did become aroused while they were talking. (Id. at 10:45:28-45:55 AM.) Given the nature of their previous relationship and the nontraditional activities they both enjoyed, it is not surprising that this sort of situation became sexual. This aspect of Buckley’s case was woefully underexplained in his trial, as discussed further below.

Buckley and JR went to Buckley’s bedroom. (Id. at 10:45:56 AM.) Buckley thought this was a normal sexual encounter between the two of them–meaning that he would direct in a domineering way, JR would submit, there would be some humiliation, and it would be what they both wanted. (Id. at 10:46:00-46:10 AM.) Without context, this video is indeed easy to misinterpret. But with Buckley’s context and the nature of their previous relationship, he thought that JR was an equally consenting party. (Id.) If he had realized that JR was not roleplaying and that she was actually in pain, he would have stopped immediately. (VR No. 4, Pt. 1: 9:47:02 AM; VR No. 4, Pt. 2: 10:46:52-47:02 AM.) Unfortunately for everyone involved, however, JR did not ever express that she wanted the sexual encounter to stop, or that she did not want to participate in it in the first place. (VR No. 4, Pt. 1: 9:47:02 AM; VR No. 4, Pt. 2: 10:46:52-47:02 AM.) JR was a sub with the power to say no, and she did not use that power to take away Buckley’s control. Buckley does not know the reasons why she did not disengage–he only knows that he truly believed she wanted to have sex based on their previous sexual encounters. (VR No. 4, Pt. 1: 9:47:02 AM; VR No. 4, Pt. 2: 10:46:52-47:02 AM.) After the sexual encounter, JR went to the bathroom, then came back to bed. (VR No. 4, Pt. 2: 10: 52:33-52:39 AM.) She stayed for forty-five minutes to an hour. (Id. at
10:52:16-52:19 AM; 10:56:30-56:36 AM.) Then she left. (Id. at 10:57:22-57:26 AM.) When JR got home, she called 911 and reported that Buckley was blackmailing her with pictures and made her have sex. (See VR No. 2, Pt. 1: 3:41:53 PM.) The detective who showed up to the hospital when JR went in for her Sexual Assault Nurse Examiner (SANE) nurse examination was Detective Andrea Burkhart, partner to Detective Steven Cobb. (Id. at 3:46:58 PM.) Buckley was arrested with the Emergency Response Unit (ERU) team, a team similar to Special Weapons and Tactics (SWAT) reserved for especially dangerous suspects. (VR No. 3, Pt. 1: 2:29:50-40:00 PM; Id. at 2:08:58 PM; Id. at 2:10:33-10:59 PM.) Fayette County Police treated Buckley much differently from other suspects in his position. Buckley was represented by an attorney during his indictment. (VR No. 3, Pt. 2: 4:05:55-06:02 PM.) The attorney encouraged Buckley to testify for the grand jury without prepping him at all for this delicate topic. On July 26, 2010, Buckley testified; his testimony did not go well. (Id. at 4:04:50-34:05 PM.) That ill-advised testimony would be used against him in an edited form repeatedly throughout his trial. (See id.; see VR No. 4, Pt. 2: 11:00:00-26:18 AM.) Buckley was indicted.

  1. The Commonwealth’s harassment of Moreno

While Buckley and JR began their legal battle, the Commonwealth searched for a way to strengthen its case. This effort was spearheaded by Detective Cobb’s partner, Detective Andrea Burkhart. In Fall of 2010, Burkhart interrogated Angelica Moreno, Buckley’s former partner. (Statement of Angelica Moreno in App. for Gubernatorial Pardon at p. 110/123.) Burkhart showed up at Moreno’s place of work and refused to leave as Moreno requested, ultimately resulting in Moreno’s termination for dealing with this “personal issue” at work. (Id. at p.111/123.) Burkhart asked Moreno all about Buckley, eventually turning to their sex life. Burkhart finished the interrogation by threatening to interfere with Moreno’s immigration status as a permanent resident from Venezuela. (Id. at p. 110/123.) Moreno was terrified.

After that, Burkhart began to stalk Moreno. In May of 2011, Moreno and Buckley were in court concerning custody disagreements with their daughter. (Id. at p. 111/123.) Burkhart did everything she could to exploit Moreno’s vulnerability as an immigrant and single mother, showing up to every court appearance and even at Moreno’s home. (Id. at pp. 111/123-112/123.) Burkhart wanted Moreno to lie about a fight she had had with Buckley in October of 2010. (Id. at p. 112/123.) Burkhart wanted Moreno to say that Buckley would not let her leave his house or that she had been physically hurt. (Id. at p. 113/123.) Neither of these propositions were true. (Id.) When Moreno would not cooperate, Burkhart threatened to do everything she could to have Moreno deported and separated from her daughter for “covering up” for Buckley. (Id.) As Moreno started to show signs of giving in out of fear of being taken away from her daughter, Burkhart pushed for even bigger lies; Burkhart wanted Moreno to say that Buckley had raped her on an occasion when they had had consensual sex. (Id.) Burkhart and prosecutors worked with Moreno to make sure she had the story down. (Id.) During this “prep,” both Burkhart and the prosecutors put words in Moreno’s mouth and made several prejudicial statements about “crazy” veterans. (Id.) This is the same group of people who prepped JR for trial.

Moreno knew she was getting in way over her head, but she did not know what to do. She had been threatened by a police officer, someone who was supposed to be sworn to protect her. She felt she had to choose between betraying the father of her daughter and her on-again-off again partner, or being deported. Moreno eventually could not take it anymore and recanted her testimony in December of 2011. (Id. at p. 115/123.)

  1. The pre-trial hearings

While the Commonwealth manipulated and threatened Moreno, Buckley’s legal battle with JR continued. On June 14, 2011, Buckley had a hearing regarding what evidence would be allowed in under KRE 412(b)(1)(B). A new attorney represented Buckley at the 412 hearing. This second attorney’s argument as Buckley’s advocate consisted primarily of the insistence that the trial judge had “a great deal of discretion.” (Video Log 22/8/11/VCR/63 Pre-Trial in Chambers, 412 Hearing, 6/14/11, 1:05:45-06:00 PM (entered into the record on 6/14/2011).) Buckley had presented this attorney with three sex videos and many nude photographs that JR had given him during their relationship to support that JR had consented to very similar instances of dominant-submissive sex with Buckley in the past. (Id. at 1:06:00 PM.) Buckley’s attorney gave in very quickly on excluding one of the videos which included Moreno. (Id. at 1:18:10 PM.) He quickly agreed to present only three pictures of JR when Buckley had provided him
with dozens more. (Id. at 1:18:25 PM; 1:20:45-21:25 PM.) And he suggested that only short “snippets” of the sex videos be shown. (Id. at 1:17:20-17:35 PM.) When deciding what videos to take snippets from, Buckley’s counsel did not push back when one of the prosecutors insisted that they had already reached an agreement to only use footage from “disk 2.” (Id. at 1:19:15-19:30 PM.) In addition, the attorney did not push back when the Commonwealth Attorneys made up extra details for the video of the incident. For example, one of the Commonwealth Attorneys claimed that in the video, Buckley forced JR to
get on her knees and that he choked her until he ejaculated. (Id. at 1:13:00-13:30 PM.) Neither of these instances happened in the video. In the 412 hearing, it was also acknowledged that the Commonwealth did not know when JR deleted texts from her phone. (Id. at 1:26:10-26:55 PM;id. at 1: 28:30-29:05 PM.) This issue was not raised at all during trial, but its importance to Buckley’s defense was critical.

Two especially interesting details of the 412 hearing were (1) the Commonwealth Attorney’s claim that the Commonwealth would never be allowed to “overdo a 404 on the defendant” referring to providing evidence against Buckley that was more prejudicial than probative when in fact, the Commonwealth was able to introduce a mountain of prejudicial, nonprobative evidence against Buckley during trial (Id. at 1:16:30-16:50 PM); and (2) the Judge’s claim that if JR’s testimony was inconsistent and opened the door, more evidence would be allowed in (Id. at 1:21:25-22:01 PM) when in fact, JR opened the door multiple times during trial and no additional evidence came in. As of this hearing, Buckley and his attorney were under the impression that the Commonwealth’s theory of forcible compulsion would be that Buckley
blackmailed JR with nude photos. Buckley’s case came down to whether his last sexual encounter with JR met the standard of “forcible compulsion.” “Forcible compulsion” means physical force or threat of physical force, express or implied, which places a person in fear of immediate death, physical injury to self or another person, fear of the immediate kidnap of self or another person, or fear of any offense under this chapter. Physical resistance on the part of the victim shall not be necessary to meet this definition[.] KRS § 510.010(2). Buckley and his attorney were confident that a supposed threat to post nude
photographs on the internet would not meet the threshold of forcible compulsion. Three weeks before Buckley’s trial date, his second attorney quit. He was replaced by a third attorney who would represent Buckley at trial and eventually cost him 34 years of his life. This third attorney represented Buckley at a 404 hearing four days before the start of trial. (See Video Log 22 8 12 CD 110, 404 Hearing, 7/05/12, 1:04:50 PM (entered into the record on 137/05/2012).) At the 404 hearing, Buckley and his attorney learned that the Commonwealth’s theory of the case had completely changed. Before learning of this change, the trial attorney had told Buckley they would win on directed verdict. At the 404 hearing, Buckley and his attorney learned that the Commonwealth had a statement from JR claiming that there had been implicit threats of violence due to her knowledge of Buckley’s military service, the fact that he was bigger than she was, and the fact that he legally owned guns which he kept in a safe and locked in a closet. (Id. at 1:11:46 PM; VR No. 4, Pt. 2: 10:30:26-30:54 AM.) This statement, which was stated as the basis of every one of the court’s 404 rulings, was not disclosed to Buckley and his attorney in discovery. Buckley’s counsel reacted to this massive blow a mere four days before a trial that could mean taking up to 62 years of a man’s life by stating that it was “no big deal,” conceding nearly every point. (404 Hearing at 1:13:55 PM.) The attorney did not request a continuance to review such an important piece of evidence, and still insisted the case would end in directed verdict.

  1. The trial

Buckley’s trial counsel made a number of prejudicial errors throughout the trial. In voir dire:

  • The trial attorney did not use a peremptory strike, or identify that he would have used a peremptory strike if he had had more, to exclude juror 3004 whose niece was date-raped in the 90s and as a result contracted AIDS and died; the juror said she could just “probably” be impartial as her niece’s rape still affects her, and that it still sticks with her “a little bit.” (VR No. 1, Pt. 1: 10:46:34-47:13 AM; Id. at 10:24:28-26:00 AM.)
    ● The trial attorney did not use a peremptory strike, or formally identify that he would have used a peremptory strike if he had had more, when juror 3046 exhibited rule-breaking behavior and a disrespect for the directions of the court, failing to preserve the issue for appeal. (VR No. 1, Pt. 2: 11:23:00-24:54 AM.)

In the guilt phase:

  • The trial attorney alienated the jury in his opening statement by slut-shaming JR, emphasizing what she was wearing, and equating pleasure to consent, insisting JR cheated on Buckley even though Buckley acknowledged they were broken up at the time, and claiming that Buckley did not know JR was worried about him posting her nude pictures online when Buckley admitted that he did know, he simply said he did not make a threat to post them. (VR No. 2, Pt. 1: 2:35:20 PM; id. at 2:36:57 PM; id. at 2:39:50 PM; id. at 2:34:45 PM; VR No. 4, Pt. 2: 10:20:58 AM; 10:23:33 AM; VR No. 2, Pt. 1: 2:38:50 PM; VR No. 4, Pt. 2: 10:38:58-39:30 AM.)
    ● The trial attorney allowed the Commonwealth Attorneys to prepare the “snippets” meant to show the similarities between the May 29, 2010 video and clearly consensual videos of Buckley and JR having sex. (VR No. 1, Pt. 4: 12:23:15-23:42 PM; Id. at Pts. 4-5: 12:26:20-32:35 PM.) Then, he let the Commonwealth say that the defense provided the videos even though the trial attorney did not even watch them before they were shown to the jury. (VR No. 2, Pt. 1: 3:30:05-31:33 PM.)
    ● The trial attorney broke off his cross examination of JR before he had covered all of the topics he and Buckley had planned for him to cover because, as he told the court, he was “tired of this.” (VR No. 2, Pt. 1: 4:16:40-17:00 PM.)
    ● The trial attorney further alienated the jury by trying to belittle JR’s anal injury in his cross of the SANE nurse. (See VR No. 2, Pt. 2: 5:14:38-15:52 PM.)
    ● The trial attorney did not move to have the ERU video of Buckley’s arrest completely excluded or object to its entry even though it was overly prejudicial and not at all probative. (VR No. 3, Pt. 1: 2:28:30 PM.) In fact, he told the court that he agreed it should be played for the jury. (Id.)
    ● The trial attorney failed to object to the Commonwealth introducing all of Buckley’s legally-owned guns into evidence in a very dramatic fashion. (VR No. 3, Pt. 1: 2:48:42-55:12 PM.) This was overly prejudicial as it made Buckley seem dangerous and not at all probative as the guns had not been present in the May 29, 2010 video.
    ● While the trial attorney did question the Commonwealth Attorneys posing the guns for the jury to see, he never actually objected, and the Commonwealth Attorneys continued to pose the guns in front of the jury. (VR No. 3, Pt. 1: 3:00:15-01:39 PM.) When the court suggested that the ammunition be separated from the guns, the trial attorney said he was satisfied and did not further push to have the guns put away. (Id. at 3:01:48-02:11PM.) The guns remained posed in an intimidating fashion in front of the jury long afterthe guns had been entered into evidence.
    ● The trial attorney allowed the Commonwealth Attorneys to edit Buckley’s testimony from the grand jury, and did not watch the edited version before it was played for the jury. (VR No. 3, Pt. 2: 4:03:10-03:39 PM; id. at 4:34:30-34:42 PM.)
    ● The trial attorney did not object to the Commonwealth entering more ammunition into evidence the last day of the trial. (VR No. 4, Pt. 1: 9:00:28-01:42 AM.) In fact, he agreed and said the jury should see the ammunition. (Id.) This insured that the jury started off the last day of the trial thinking of Buckley’s guns.
    ● The trial attorney agreed with the Commonwealth that assault required just a physical injury rather than a serious physical injury, and agreed that a jury instruction on the definition of “serious physical injury” was not necessary for either assault or unlawful imprisonment. (VR No. 4, Pt. 1: 9:01:43-03:55 AM.)
    ● The trial attorney failed to object when the Commonwealth moved to play the May 29, 2010 video for the jury again on the last day of the trial. (VR No. 4, Pt. 1: 9:22:26-28:22AM.)
    ● The trial attorney did not prep Buckley for direct or cross examination. (See VR No. 4,Pt. 1: 9:37:45 AM; see also id. at 11:00:00 AM.)
    ● The trial attorney failed to object when the Commonwealth Attorney brought in that Buckley’s daughters had two different mothers, and that the oldest two are only three months apart. (VR No. 4, Pt. 2: 11:03:34-04:07 AM.) This was overly prejudicial and was not remotely relevant.
    ● The trial attorney opted not to redirect after the Commonwealth’s cross of Buckley even though the cross had drastically damaged Buckley’s credibility through prejudicial, irrelevant, out-of-context, and only partially true information. (VR No. 4, Pt. 2: 11:26:07AM.)
    ● The trial attorney did not obtain an expert to discuss JR’s phone records as was intended at the 412 hearing. (412 Hearing at 1:26:10-26:55 PM; id. at 1:28:30-29:05 PM.)
    ● The trial attorney did not call and question Buckley’s neighbors who witnessed JR sitting outside Buckley’s house all night as well as JR asking to come inside. (App. for Gubernatorial Pardon at p. 13/123; VR No. 4, Pt. 2: 10:21:25-42:10 AM.)
    ● The trial attorney did not advise Buckley on whether to waive instructions for lesser included offenses before the court asked Buckley if he wanted to waive them on the last day of the trial. (VR No. 4, Pt. 4: 11:46:48-47:45 AM.)
    ● The trial attorney did not object when the Commonwealth blatantly lied in its closing statement, claiming that the May 29, 2010 video opened with Buckley ordering JR to “get down on your knees, bitch” when it actually opened with JR already topless and on her knees. (See VR No. 4, Pt. 6: 2:15:11-15:22 PM; see VR No. 2, Pt. 1: 2:27:06 PM.)
    ● The trial attorney did not object when the Commonwealth claimed that based on phone records, JR had only been at Buckley’s house for about four minutes when the May 29, 2010 video started when in fact, the amount of time was closer to one hour and four minutes as one of the phones was set for the wrong time zone.
    ● The trial attorney failed to enter a single exhibit into evidence the entire trial.
    ● The trial attorney failed to acquire any witnesses to support Buckley’s credibility or damage JR’s other than Buckley himself.
    ● The trial attorney failed to fight to either keep Buckley’s sexual interactions with other partners while dating JR out, or to get JR’s sexual interactions with other partners while dating Buckley in. Only presenting that Buckley had been sleeping with other people without allowing him to talk about the nature of his polyamorous relationship with JR and Moreno was extremely prejudicial and misleading.
    ● The trial attorney failed to fight the Commonwealth’s tactic of putting Buckley’s status as a veteran on trial. The Commonwealth waved Buckley’s legally-obtained and safely stored weapons in front of the jury, even pointing them at the jury, attempting to make Buckley out as a gun-obsessed nut. (VR No. 3, Pt. 1: 2:48:42-55:12 PM; id. at1: 3:00:15-01:39 PM.) This was extremely prejudicial with no probative value. The Commonwealth managed to twist the jury’s respect for a veteran who fought for their rights into a fear that as a tall, muscular man who knew how to handle a weapon and who had served in the armed forces, any sex he had would involve implicit threat just because of who he is. If this was the standard, how would any veteran defend himself in a rape trial? Through this preposterous charade, the trial attorney sat passively.
    ● The trial attorney failed to call, or even to investigate, any expert witness who could explain the nature of BDSM, polyamorous relationships, the implications (or lack thereof) of gun ownership, or the implications (or lack thereof) of prior military service as it relates to propensity for violence.

In the sentencing phase:

  • The trial attorney failed to object when the Commonwealth Attorney asked to reference Buckley’s absence in the sentencing phase, and instead agreed that referencing his absence was appropriate. (VR No. 4, Pt. 8: 4:30:08-30:45 PM.)
    ● The trial attorney suggested that the Commonwealth argue that Buckley removing his monitoring device was an aggravating circumstance in the same breath in which he objected to the Commonwealth telling the jury about Buckley removing the monitoring device. (VR No. 4, Pt. 8: 4:30:46-31:38 PM.)
    ● The trial attorney failed to properly prepare Buckley’s father to testify as a mitigating witness. (See VR No. 4, Pt. 8: 4:39:42 PM.)
    ● The trial attorney failed to formally object when the court ruled that the Commonwealth could question Buckley’s father about Moreno’s false charges against Buckley – charges which had nothing to do with the offenses for which Buckley was convicted. (VR No. 4,Pt. 8: 4:45:35-46:57 PM.)
    ● The trial attorney failed to present any mitigating evidence or mitigating witnesses for Buckley apart from allowing his father to ask for mercy. (See VR No. 4, Pt. 8: 4:39:42PM.) He did not present an expert witness to testify as to Buckley’s PTSD, traumatic brain injury, or process of acclimating to civilian society.
    ● The trial attorney did not request to inspect the jury form or have the jury polled in either the guilt or sentencing phases.
    ● The trial attorney not only failed to object to the court talking to the jury off the record after trial, but suggested it. (VR No. 4, Pt. 8: 6:12:30-13:00 PM.)

Due to the trial attorney’s deficient performance, Buckley was found guilty on all counts and sentenced to 32 years in prison. This was extended to 34 years when Buckley was recaptured after running when he realized that his attorney had failed in putting on a remotely successful case to prove his innocence.

  1. The appeal

Buckley was represented in his appeal by a fourth attorney. The Kentucky Supreme Court released a not-to-be-published opinion on May 14, 2015 confirming Buckley’s convictions and sentence. (See Buckley v. Commonwealth, 2015 Ky. Unpub. LEXIS 22, *1-2 (Ky. 2015)
(attached hereto as Exhibit E in accordance with CR 76.28(4)(c)).)

III. STANDARD OF REVIEW

In an 11.42 motion for ineffective assistance of counsel, the moving party must show (1) that the attorney engaged in a deficient performance, and (2) that the deficient performance resulted in prejudice “so serious as to deprive the defendant of a fair trial[.]” Hodge v. Commonwealth, 68 S.W.3d 338, 344 (Ky. 2001) citing Strickland v. Washington, 466 U.S. 668, 687 (1984). It is up to the court to determine if the movant was deprived of his right to a fair trial due to the attorney’s deficient performance, the result of which was an unreliable verdict. Strickland v. Washington, 466 U.S. 668, 696 (1984). The movant should show the existence of a reasonable probability that the trial result would have differed if the attorney’s errors had not occurred. Id. at 703.

Ineffective assistance of counsel claims may be brought under RCr 11.42 even if direct appeal denied the claim of error underlying the ineffective assistance of counsel claim. Leonard v. Commonwealth, 279 S.W.3d 151, 157 (Ky. 2009). This is because ineffective assistance of counsel claims are broader than those considered under appeal, so that the reason behind a mistake is considered, not just the mistake itself. Id. at 157-58. “[A] failure to prevail on a palpable error claim does not obviate a proper ineffective assistance claim.” Id. at 158. In order to successfully bring a motion under 60.02(f), the court must determine (1) that subparts (a) through (e) of 60.02 do not apply; (2) that the movant did not have a fair opportunity to present this claim at trial; and (3) that granting CR 60.02(f) relief would not be inequitable to
any other parties. Snodgrass v. Snodgrass, 297 S.W.3d 878, 884 (Ky. Ct. App. 2009). Buckley provides evidence to meet these standards for 11.42 and 60.02(f) relief.

IV. ARGUMENT

A. The trial attorney failed to request a continuance or dismissal of the charges when the Commonwealth hid JR’s statement until four days before the trial, and thus was ineffective in his representation of Buckley.

At the 404 hearing mere days before the start of trial, Buckley and his attorney found out for the first time that the Commonwealth’s theory of forcible compulsion would be based on a statement made by JR concerning fear of Buckley as a gun-owning veteran rather than based on her 911 call concerning a fear that Buckley would post naked pictures of her on the internet. (See 404 Hearing at 1:11:46 PM.) Factors taken into consideration when determining whether a continuance is proper include the length of delay; any previous continuances; the inconvenience to the litigants, witnesses, counsel, and the court; if the delay is purposeful or caused by the accused; the availability of additional competent counsel; the complexity of the case; and whether the lack of a continuance would lead to identifiable prejudice. Snodgrass v.
Commonwealth, 814 S.W.2d 579, 581 (Ky. 1994).

Here, the factors weigh heavily in favor of a continuance. The length of delay is undetermined, but it would not need to be an absurd amount of time. There had not been an obscene number of previous continuances by the trial attorney. While there would be a mild inconvenience to the involved parties, it would be much more inconvenient for Buckley not to have a continuance. The delay was not caused by the defense, but by the Commonwealth in not providing the statement. (Alternatively, the delay was caused by the trial attorney’s failure to examine the discovery documents thoroughly, and counsel was ineffective on those grounds.)

The case was complex enough that additional time was needed to reformulate the defense under this new theory of forcible compulsion. And the lack of a continuance would and did lead to identifiable prejudice against Buckley.

The modification of the Commonwealth’s theory of forcible compulsion necessitated a modification of Buckley’s defense, but Buckley’s trial attorney did not request a continuance. The Commonwealth says the statement was in reciprocal discovery, but Buckley’s trial counsel never came across it. Either the Commonwealth was lying, or Buckley’s trial attorney missed a very important document in discovery. Either way, Buckley’s trial attorney should not have proceeded with trial unchanged after this last-minute discovery. However, the trial attorney brushed off the Commonwealth’s deception regarding evidence that changed the entire theory of the case with a mere “it’s no big deal.” (404 Hearing at 1:13:55 PM.)

A reasonable attorney of ordinary training and skill in criminal law would have thoroughly examined the documents in discovery, and requested an extension of time if such a huge alteration in strategy became apparent mere days before the start of the trial. The attorney engaged in a deficient performance, and that deficient performance resulted in prejudice so serious as to deprive Buckley of a fair trial. The requirements of RCr 11.42 and 60.02(f) are met, and Buckley’s resulting conviction should be vacated.

B. The trial attorney failed to use peremptory strikes, express his desire to use peremptory strikes, or move to strike jurors who showed signs of bias and a tendency not to follow directions, and thus was ineffective in his representation of Buckley.

The trial attorney did not use a peremptory strike or express his desire to use a peremptory strike on a juror with a likely bias towards alleged victims in sexual assault cases, failing to preserve the issue for appeal. The trial court’s decision not to strike a juror for cause can only be reversed if “the party had to use a peremptory challenge to strike the juror and, in fact, used all his peremptory challenges.” Ordway v. Commonwealth, 391 S.W.3d 762, 781 (Ky. 2013). A juror should be stricken for cause when it is not certain “whether the prospective juror can conform his views to the requirements of the law and render a fair and impartial verdict.” Id. Here, the attorney failed to use his peremptory challenges to strike two jurors who did not show that they could conform their views to the requirements of the law and render a fair and impartial verdict. Juror 3004 reported that her nice was raped, contracted AIDS as a result, and died. (VR No. 1, Pt. 1: 10:24:28-26:00 AM.) The rapist was never prosecuted due to dying from AIDS, himself. (Id.) A reasonable attorney of ordinary training and skill in criminal law would have realized the substantial threat of bias towards the alleged victim and preserved the desire to remove the juror. There is a reasonable probability that the trial result would have differed if the jury had been completely made up of unbiased jurors. The trial attorney also did not make a clear motion to strike juror 3046 who exhibited rule-breaking behavior and a disrespect for the directions of the court, failing to preserve the issue for appeal. This juror talked about the case in the hallway during the very first break right after the judge informed the jury not to do so. (VR No. 1, Pt. 2: 11:23:00-24:54 AM.) A reasonable attorney of ordinary training and skill in criminal law would have realized the substantial threat of a juror who did not respect judicial instructions, and preserved the desire to remove the juror. There is a reasonable probability that the trial result would have differed if the jury had been completely made up of rule-abiding jurors. A reasonable attorney of ordinary training and skill in criminal law would have used peremptory strikes, expressed his desire to use peremptory strikes, and moved to strike jurors who showed strong signs of bias and a tendency not to follow directions. There is a reasonable probability that the trial result would have differed if these jurors had been kept off the jury. The attorney engaged in a deficient performance, and that deficient performance resulted in prejudice so serious as to deprive Buckley of a fair trial. The requirements of RCr 11.42 and 60.02(f) are
met, and Buckley’s resulting conviction should be vacated.

C. The trial attorney chose a strategy that any lawyer of ordinary training and skills would have known to be greatly offensive to the jury, and thus was ineffective in his representation of Buckley.

The trial attorney adopted an offensive strategy when arguing Buckley’s case to the jury. Under the Sixth Amendment of the United States Constitution, attorneys may not engage in defense strategies and tactics which any lawyer of ordinary training and skills in criminal law would consider foreseeably ineffective when an alternative action would have better served the defendant. Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974). Here, the trial attorney alienated the jury in his opening statement by slut-shaming JR and equating pleasure to consent, insisting JR cheated on Buckley even though Buckley acknowledged they were broken up at the time, and claiming that Buckley did not know JR was worried about him posting her nude pictures online when Buckley admitted that he did know, he simply said he did not make a threat to post them. (VR No. 4, Pt. 2: 10:20:58 AM; 10:23:33 AM; VR No. 2, Pt. 1: 2:38:50 PM; VR No. 4, Pt. 2: 10:38:58-39:30 AM.) The trial attorney further alienated the jury by attempting to belittle JR’s anal injury during his cross examination of the SANE nurse. (See VR No. 2, Pt. 2: 5:14:38-15:52 PM.)

A reasonable attorney of ordinary training and skill in criminal law would have realized that a jury would find the implication that a woman who had previously engaged in and enjoyed nontraditional sex could not be raped offensive and chosen a different approach. The attorney engaged in a deficient performance, and that deficient performance resulted in prejudice so serious as to deprive Buckley of a fair trial. There is a reasonable probability that the trial result would have differed if the trial attorney had not offended the jury in his opening statement and throughout the trial. The requirements of RCr 11.42 and 60.02(f) are met, and Buckley’s resulting conviction should be vacated.

D. The trial attorney failed to prepare edited versions of videos and audio recordings, trusting opposing counsel to do it for him, and thus was ineffective in his representation of Buckley.

The trial attorney shifted many of his responsibilities onto the Commonwealth Attorneys, including the preparation of video clips intended to show the jury that the sexual encounter at issue was very similar to other clearly consensual sex acts between Buckley and JR. In Commonwealth v. Robertson, there was no question that the trial counsel exhibited a complete deficiency in the representation of his client to the point that the trial counsel “completely abdicated his responsibility to his client.” 431 S.W.3d 430, 439 (Ct. App. Ky. 2013). Here, the trial attorney’s decision to allow the Commonwealth Attorneys to prepare the “snippets” meant to show the similarities between the May 29, 2010 video and undisputed consensual videos of Buckley and JR having sex resulted in the Commonwealth Attorneys picking and editing clips that starkly contrasted the consensual sexual encounters from the one at issue. In the snippets prepared and played by the Commonwealth, JR was enthusiastic and appeared to be gaining pleasure from the encounter, whereas in the May 29 video, it was not objectively apparent that JR was a consensual participant. (See VR No. 2, Pt. 1: 3:34:05-34:51 PM.) Instead of providing context for how the sex in the May 29 video was normal for Buckley and JR, the snippets made it seem as though the May 29 experience was not normal. Then, the trial attorney let the Commonwealth Attorneys say that the defense provided the videos even though the trial attorney did not watch them in their edited form before they were shown to the jury. (VR No. 2, Pt. 1: 3:30:05-31:33 PM.) To be clear, there was a substantial amount of
additional video which demonstrated that this conduct between Buckley and JR was normal, and Buckley specifically drew his counsel’s attention to this video. Nonetheless, trial counsel did not
meaningfully attempt to introduce this video, choosing instead to allow his client to be grossly prejudiced by the Commonwealth’s selective editing. There is no question that the trial attorney completely abdicated his responsibility to Buckley.

A reasonable attorney of ordinary training and skill in criminal law would have prepared the video snippets himself, or sought help from a colleague rather than opposing counsel, and would have viewed the videos before they went to the jury in order to make sure they depicted what they were supposed to depict. The attorney engaged in a deficient performance, and that deficient performance resulted in prejudice so serious as to deprive Buckley of a fair trial. The requirements of RCr 11.42 and 60.02(f) are met, and Buckley’s resulting conviction should be vacated.

E. The trial attorney failed to move to suppress evidence and statements which may have unfairly prejudiced Buckley, and thus was ineffective in his representation of Buckley.

Buckley’s trial attorney did not fight for the exclusion of evidence that was not relevant, or overly prejudicial. Under the Kentucky Rules of Evidence, “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. KRE 401. Evidence of Buckley’s guns, the admission of the ERU arrest video, and testimony of Buckley’s multiple sexual partners were not relevant. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. KRE 403. Alternatively, evidence of Buckley’s guns, the admission of the ERU arrest video, and testimony of Buckley’s multiple sexual partners were overly prejudicial. The trial attorney did not object to the introduction into evidence of the guns found in Buckley’s apartment during the warrant execution. (VR No. 3, Pt. 1: 2:48:42-55:12 PM.) The appellate court was critical of the admission of the guns into evidence, and found it to be an error. See Buckley v. Commonwealth, 2015 Ky. Unpub. LEXIS 22, *19-20 (Ky. 2015). This was not a harmless error as there was a “reasonable possibility that it contributed to the conviction.” Anderson v. Commonwealth, 231 S.W.3d 117, 122 (Ky. 2007). Buckley’s guns were not relevant as they were not used or referenced during the May 29 video, and their admission violated KRE 401. (See VR No. 2, Pt. 1: 2:27:06 PM.) Alternatively, seeing each of Buckley’s guns, one after another, and hearing the officer describe the various ways in which the guns could kill and his opinion that Buckley had been storing his guns in irresponsible manner had much more of an impact on the jury than JR’s testimony stating the Buckley had guns, resulting in substantial prejudice under KRE 403. (VR No. 3, Pt. 1: 2:48:42-55:12 PM.) Either way, Buckley’s guns should not have been admitted. The trial attorney also did not object to playing the video of the ERU officers arresting Buckley for the jury. (VR No. 3, Pt. 1: 2:28:30 PM.) In fact, he specifically told the court he had watched the video and was fine with the jury watching it. (Id.) The ERU video was not relevant as it had nothing to do with the May 29 video, violating KRE 401. Alternatively, watching militarized police in riot gear break into Buckley’s home after being told that most arrest warrants are not served that way gave the jury the impression that Buckley was a very dangerous man, creating substantial prejudice under KRE 403. The jury’s understanding of Buckley as a dangerous man supported the Commonwealth’s theory of an implied threat of violence meeting the standard of forcible compulsion, and if the jury had not seen Buckley as a dangerous man, it is reasonable that it would not believe an implied threat of violence existed or that JR’s subjective fear was rational. While the appellate court found this to be an error, the trial attorney’s failure to object to this video resulted in the appellate court reviewing this issue under the heightened “palpable error” standard, and the court was not convinced the heightened standard was met. See Buckley, 2015 Ky. Unpub. LEXIS 22 at *20-21.

The trial attorney did not object to information on Buckley’s multiple sexual partners coming in when the Commonwealth Attorney brought in that Buckley’s daughters had two different others and were only three months apart. (VR No. 4, Pt. 2: 11:03:34-04:07 AM.) This was not relevant under KRE 401 and was only brought in to hurt Buckley’s image. Alternatively, the knowledge that Buckley had multiple sexual partners when the jury was not allowed to know that JR had also had multiple sexual partners created prejudice towards Buckley, violating KRE 403. Buckley’s trial attorney should have objected to this line of questioning. In addition, using Buckley’s gun ownership and military service against him was not only despicable, but likely a violation of his Second and First Amendment rights, respectively. Trial counsel failed to object on these grounds, or on any grounds. At the very least, a reasonable lawyer would have known that these facts were far more prejudicial than probative.

A reasonable attorney of ordinary training and skill in criminal law would have objected to the introduction of these forms of irrelevant and prejudicial information into evidence. There is a reasonable probability that the trial result would have differed if this information had been kept out of evidence. The attorney engaged in a deficient performance, and that deficient performance resulted in prejudice so serious as to deprive the defendant of a fair trial. The requirements of RCr 11.42 and 60.02(f) are met, and Buckley’s resulting conviction should bevacated.

F. The trial attorney failed to prepare any exhibits, lay witnesses, or expert witnesses for trial, and thus was ineffective in his representation of Buckley.

Buckley’s trial attorney did not put on any case other than having Buckley testify. In Commonwealth v. Robertson, there was “no question” that the trial counsel exhibited a “complete” deficiency in the representation of his client to the point that the trial counsel “completely abdicated his responsibility to his client.” 431 S.W.3d 430, 439 (Ct. App. Ky. 2013). The trial counsel did not prepare, did not interview witnesses, did not research relevant law, did not challenge incorrect testimony, and relied on the judge’s discretion to protect the client’s interests. Id.

Here, Buckley’s trial attorney did not prepare for the 404 hearing or trial, did not interview any witnesses (he did not even prep Buckley to testify), did not research relevant law based on his objections (and the fact that the court had to correct him on one aspect of the law– VR No. 4, Pt. 2: 11:27:33-29:54 AM), did not challenge incorrect testimony when the Commonwealth misrepresented the contents of the May 29 video (See VR No. 4, Pt. 6: 2:15:11-15:22 PM; see VR No. 2, Pt. 1: 2:27:06 PM), and heavily relied on the judge’s discretion when he agreed with the court throughout the trial even when it was not in the best interest of Buckley.

The trial attorney also showed a lack of preparation when he did not obtain an expert on BDSM, PTSD, or the deleted text messages as was the plan at the 412 hearing. The trial attorney also did not submit an exhibit of a picture of the layout of Buckley’s home, but instead allowed Buckley and JR to argue about the layout when it should have been very straight-forward to establish the truth.

A reasonable attorney of ordinary training and skill in criminal law would have prepared exhibits, lay witnesses, and expert witnesses where necessary for trial. There is a reasonable probability that the trial result would have differed if not for counsel’s error. The attorney engaged in a deficient performance, and that deficient performance resulted in prejudice so serious as to deprive the defendant of a fair trial. The requirements of RCr 11.42 and 60.02(f) are met, and Buckley’s resulting conviction should be vacated.

G. The trial attorney failed to investigate or put on any meaningful mitigating evidence, and thus was ineffective in his representation of Buckley. Attorneys have a duty to investigate for mitigating evidence. Hodge v. Commonwealth, 68 S.W.3d 338, 344 (Ky. 2001).

To determine whether an attorney failed in his duty to investigate for mitigating evidence, the court must determine (1) if a reasonable investigation should have uncovered mitigating evidence; (2) if the failure to put on mitigating evidence was a tactical choice; and (3) if there is a reasonable probability that if it were not for counsel’s unprofessional error, the result would have been different. Id. Here, the trial attorney did not investigate Buckley’s background of PTSD and other mitigating factors, or neighbors who witnessed JR parked outside of Buckley’s house as well as JR’s request that they go inside. This is a very basic step that was entirely overlooked in this case. A reasonable investigation would have uncovered Buckley’s PTSD and journey to recovery, as well as Buckley’s neighbors who witnessed important events. The lack of mitigating evidence was not a tactical choice. If doctors and other witnesses had been provided to discuss Buckley’s PTSD, treatment at the VA after his arrest but before trial, volunteer work, college education, mental health, and experience as a veteran transition advocate, there is a reasonable probability that the result of Buckley’s sentence would have been different. If Buckley’s neighbors had been present to testify that JR parked in front of Buckley’s house all night and asked to come inside, there is a reasonable probability that the result of Buckley’s trial would have been different. Buckley informed his attorney of his service, the resulting trauma, his underlying conditions, his recovery, and his extensive treatment. Buckley also informed trial counsel that he had treating medical professionals who were ready, willing, and able to testify on his behalf. Furthermore, experts on PTSD and other issues facing veterans can be found in virtually any community. No reasonable attorney would have missed this. Here, trial counsel actually allowed Buckley’s military service to be used against him.

One need look no further than the attachments to Buckley’s Clemency Application to see that mitigating evidence exists which should have been presented on his behalf. The Court is encouraged to review these documents, which are attached as Exhibit A (Ex. 6, p.116). A reasonable attorney of ordinary training and skill in criminal law would have conducted an investigation and put on mitigating evidence. There is a reasonable probability that the trial result would have differed if not for counsel’s error. The attorney engaged in a deficient performance, and that deficient performance resulted in prejudice so serious as to deprive the defendant of a fair trial. The requirements of RCr 11.42 and 60.02(f) are met, and Buckley’s resulting conviction should be vacated.

IV. CONCLUSION

The cumulative effect of the trial attorney’s errors mandates the granting of Buckley’s Motion to vacate, set aside, or correct sentence on grounds of reasons of extraordinary nature justifying relief. Each error discussed above was highly prejudicial to Buckley and to his Constitutional right to effective representation; the combination of all of these errors made the prejudicial effect even worse. Therefore, Buckley’s conviction and sentence should be vacated or set aside.

V. REQUEST FOR EVIDENTIARY HEARING

Movant respectfully requests the Court schedule an evidentiary hearing on the above Motion and supplement.

Respectfully submitted,
s/ Daniel J. Canon
Daniel J. Canon
CLAY DANIEL WALTON & ADAMS, PLC
462 S. Fourth St., Ste. 101
Louisville, KY 40202
(502) 561-2005
dan@justiceky.com
Counsel for Movant
33
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was mailed to the following this 23rd day of October, 2017.
Commonwealth Attorney
116 N. Upper St.
Lexington, KY 40507
s/ Daniel J. Canon
Daniel J. Canon