At page 121 “a defendant is precluded from raising claims under cr 60.02 which were, or reasonably could have been, raised in prior proceedings.”3 citing cases
- Blake Haddix v. Commonwealth of Kentucky, No. 2024-CA-0636 (Ky. Ct. App. May 22, 2026).unpublishedWe reiterate: Haddix is not entitled to bring additional CR 60.02 or RCr 11.42 “claims which were, or reasonably could have been, raised in prior proceedings.” Berry, 624 S.W.3d at 121.
- Gary Woolbright v. Commonwealth of Kentucky, No. 2024-CA-1161 (Ky. Ct. App. Nov. 7, 2025).unpublishedId., Berry, 624 S.W.3d at 121-22.
- Timothy Hargroves, Jr. v. Commonwealth of Kentucky, No. 2024-CA-0198 (Ky. Ct. App. Mar. 14, 2025).unpublished
Other citing cases
- Frankie Covington v. Commonwealth of Kentucky, No. 2023-CA-0311 (Ky. Ct. App. May 22, 2026).unpublished
- Antonio Ellison v. Commonwealth of Kentucky, No. 2024-CA-0956 (Ky. Ct. App. July 3, 2025).unpublished
- Isaiah Tyler v. Commonwealth of Kentucky, No. 2022 CA 001190 (Ky. Ct. App. May 25, 2023).unpublished
v.
Commonwealth of Kentucky
RENDERED: APRIL 2, 2021; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0767-MR
JAMES HENRY BERRY APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE A. C. MCKAY CHAUVIN, JUDGE ACTION NO. 87-CR-000192
COMMONWEALTH OF KENTUCKY APPELLEE
[*~119–121]OPINION
AFFIRMING
** ** ** ** ** BEFORE: DIXON, KRAMER, AND MCNEILL, JUDGES. DIXON, JUDGE: James Henry Berry appeals the order of the Jefferson Circuit Court denying his fifth CR1 60.02 motion, entered November 20, 2019. After careful review of the record, briefs, and law, we affirm.
successful objection to the application of KRS 532.055, which mandates the bifurcation of felony trials into guilt and penalty phases; and (2) he failed to timely raise the issue on direct appeal or by previous collateral attacks. Berry v. Commonwealth, 2008 WL 612457, *3-4 (Ky. App. Mar. 7, 2008). The Court further held that Berry’s sentence was not illegal because life imprisonment is a penalty authorized by KRS 532.030. Id. at *3.
On February 11, 2019, Berry filed his fifth CR 60.02 motion, which is the subject of this appeal. Therein, Berry again attacked the legality of his sentence where he did not have a penalty phase at trial, as required by KRS 532.025 and 532.055, and argued for the first time that he received ineffective assistance of trial and appellate counsel (for waiving the penalty phase and failing to raise the error on appeal, respectively). The court denied the motion, and Berry timely appealed. Additional facts will be introduced as they become relevant.
STANDARD OF REVIEW
We review the denial of CR 60.02 motions for abuse of discretion. Young v. Richardson, 267 S.W.3d 690, 697-98 (Ky. App. 2008). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
[*~120–122]ANALYSIS
Berry argues the court abused its discretion in denying him relief where his conviction was void or illegal and, further, that he was denied effective assistance of counsel.[5] We need not address Berry’s arguments in depth because his claims are not properly before the Court.
“The structure provided in Kentucky for attacking the final judgment of a trial court in a criminal case is not haphazard and overlapping, but is organized and complete. That structure is set out in the rules related to direct appeals, in RCr[6] 11.42, and thereafter in CR 60.02.” Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983) (footnote added). Relevantly, CR 60.02(e)-(f) provides that a court may relieve a movant from a judgment if it is void, or for other reasons of an extraordinary nature. However, CR 60.02 is only for relief that is not available by direct appeal or under RCr 11.42. Gross, 648 S.W.2d at 856. Moreover, a defendant is precluded from raising claims which were, or reasonably could have been, raised in prior proceedings. Id. at 857.
[*~121–123]Herein, Berry previously litigated his claim that the denial of a penalty phase rendered his sentence illegal in his 2006 CR 60.02 motion. Accordingly, this argument is barred as successive. As for Berry’s new contention that he was deprived effective assistance of counsel with regard to the lack of a penalty phase, this claim is barred as well because, beyond any doubt, it could have been raised in the 2006 motion. Accordingly, the court did not abuse its discretion in denying Berry relief.
As a final matter, the Commonwealth argues that Berry’s repeated, meritless CR 60.02 motions necessitate instructing the circuit court to deny Berry in forma pauperis status as to any further attempts to collaterally attack his conviction. In support, the Commonwealth cites to Cardwell v. Commonwealth, 354 S.W.3d 582, 585 (Ky. App. 2011), wherein a panel of this Court stated, “where a pro se litigant files repetitious and frivolous claims, a court may bar prospective filings to prevent the deleterious effect of such filings on scarce judicial resources.” Berry did not respond by way of a reply brief.
The Commonwealth’s request is well taken. Similar to Cardwell, Berry has filed multiple meritless motions and has been previously advised, by way of the Court’s 2001 and 2008 opinions, that it is not permissible to relitigate issues which were, or reasonably could have been, raised in prior proceedings. As[*~122–123] such, we direct the circuit court to deny Berry any future requests to proceed in forma pauperis on collateral attacks of this conviction.
CONCLUSION
Therefore, and for the foregoing reasons, the order of the Jefferson Circuit Court denying Berry’s CR 60.02 motion is AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: James Berry, pro se Daniel Cameron Burgin, Kentucky Frankfort, Kentucky
Ken W. Riggs Frankfort, Kentucky