RENDERED: OCTOBER 27, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-1031-MR

JAMES R. HUFFMAN, IV APPELLANT 

v. 

APPEAL FROM LETCHER CIRCUIT COURT

HONORABLE KENT HENDRICKSON, SPECIAL JUDGE

ACTION NO. 14-CR-00003

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

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BEFORE: THOMPSON, CHIEF JUDGE; CETRULO AND COMBS, JUDGES.

CETRULO, JUDGE: Appellant James R. Huffman, IV, (“Huffman”) appeals, pro 

se, from the Letcher Circuit Court denial of his Kentucky Rule of Criminal 

Procedure (“RCr”) 11.42 motion for postconviction relief. We affirm.
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I. BACKGROUND

On New Year’s Eve 2014, Huffman and his friend, Patrick Smith 

(“Smith”), were celebrating in Whitesburg when they met the victims: Michael 

Hogg (“Hogg”), Christopher Puckett, Stacy Phillips, and Samantha Mullins. These 

two groups did not know each other prior to the events in this case. Smith was 

tried separately and is not subject to this appeal.

A little after midnight, Huffman and Smith encountered two of the 

victims near StreetSide, a Whitesburg bar and grill, and conversed with them in 

their vehicle, a Jeep Grand Cherokee (“Jeep”). This was a cordial interaction that 

ended with Huffman and Smith walking away. The victims left the area and when 

they returned to one of their apartments, they realized a bottle of liquor was 

missing from the backseat of the Jeep. Assuming Huffman had stolen the bottle, 

the victims returned to the StreetSide area.

The victims found Huffman inside the bar and asked for return of the 

bottle. He denied having the bottle but said he would call a friend to ask if he had 

taken it. Witnesses described this interaction as non-threatening. While Huffman 

was on the phone, Huffman and the victims left the bar and walked to a nearby 

parking lot. Shortly thereafter, Huffman walked quickly toward the victims with 

something in his hand. A fight ensued, resulting in three of the victims being 

stabbed and/or cut. All the victims managed to get inside the Jeep and lock the 
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doors. Huffman and Smith both had knives and began beating on the sides of the 

Jeep and slashed its tires. The victims drove out of the parking lot, Huffman and 

Smith in pursuit. Due to the Jeep’s flat tires, they could not drive to the hospital 

and instead, pulled over and called 911. By the time an ambulance arrived, Hogg 

was no longer breathing and was pronounced dead on arrival at the hospital. 

Another victim’s stab wound was deemed life-threatening, and he was airlifted to 

another hospital where he later made a full recovery. A third victim’s hand was 

cut and treated. After a three-week trial, Huffman was convicted of one count of 

complicity to murder, three counts of attempted murder, and one count of criminal 

mischief. He was sentenced to life imprisonment.

On direct appeal, Huffman alleged (1) the circuit court erred by 

denying his motion for change of venue; (2) the circuit court should have struck 

three of the jury pool members for cause; (3) the jury pool did not represent a fair 

cross-section of the community; (4) the circuit court erred by denying his motion to

compel the presence of an out-of-state witness; (5) the circuit court erred by 

denying his motion for a directed verdict on two of the attempted murder counts; 

and (6) the circuit court erred by denying the admission of testimony by an expert 

witness. The Supreme Court affirmed in part, but reversed one of his convictions 

for attempted murder – due to insufficient evidence regarding one of the victims –

and remanded for entry of an amended judgment. James R. Huffman, IV v. 
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Commonwealth, No. 2018-SC-000088-MR, 2019 WL 2463279 (Ky. Jun. 13, 

2019). The amended judgment was entered by the circuit court.

In June 2020, Huffman filed a motion for RCr 11.42 relief, along with 

accompanying motions for a hearing to proceed in forma pauperis and for 

appointment of counsel. The Commonwealth filed a motion to dismiss because the 

motion was unverified. Huffman filed a duplicate motion and supporting 

memorandum, arguing the June motions should be accepted. However, those 

duplicative motions were also unverified. The circuit court dismissed both 

motions due to lack of verification.

In December 2021, Huffman filed a third motion for postconviction 

relief pursuant to RCr 11.42. Accompanying that motion, Huffman also filed a

motion for an evidentiary hearing and appointment of counsel. In this RCr 11.42 

motion, Huffman included this verification:

The Movant James R. Huffman after being sworn under 

oath states he has read this RCr 11.42 Motion to Vacate, 

Set Aside, or Amend the final judgment pursuant to RCr 

11.42 for Ineffective Assistance of Counsel, and the 

statements it contains are true and correct to the best of 

his knowledge and belief.

On July 27, 2022, the circuit court overruled Huffman’s motions in

full (“Original Order”). The court concluded that Huffman had not met his burden 

of overcoming the strong presumption that his three trial counsel’s representation 

was within the wide range of reasonable professional assistance. Also, he had not 
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shown that he was prejudiced by any of the claimed errors. The court determined 

that an evidentiary hearing was not necessary because Huffman’s claims “either 

fail[ed] to state a claim for RCr 11.42 relief while others [did] not present issue of 

fact or law that cannot be conclusively resolved by an examination of the 

record[.]” On July 28, the court received Huffman’s “Supplement to / Amendment 

of RCr 11.42” that was stamped “filed” by the clerk on July 21.

On August 3, 2022, the circuit court – recognizing Huffman’s right to 

amend his motion – entered a supplemental order addressing Huffman’s additional 

motion and new arguments (“Supplemental Order”). Again, the circuit court 

walked through each of Huffman’s claims and concluded that Huffman had not 

met his burden of showing his trial counsel were ineffective. This Supplemental

Order sustained Huffman’s motion to amend, but again overruled his ineffective 

assistance of counsel motion. Huffman appeals.

II. STANDARD OF REVIEW

The denial of an RCr 11.42 motion is reviewed on appeal for an abuse 

of the trial court’s discretion. Bowling v. Commonwealth, 981 S.W.2d 545, 548 

(Ky. 1998). Abuse of discretion has been defined as being “arbitrary, 

unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.

English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted).
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To succeed on a claim for ineffective assistance of counsel, one must 

meet the dual prongs of “performance” and “prejudice” provided in Strickland v.

Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984),

and Gall v. Commonwealth, 702 S.W.2d 37, 39 (Ky. 1985). First, a “defendant

must show that counsel’s representation fell below an objective standard of 

reasonableness.” Strickland, 466 U.S. at 688, 104 S. Ct. at 2064. Once deficient 

performance has been established, a defendant must show prejudice; i.e., “a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Id. at 694, 104 S. Ct. at 2068. In other 

words, not only must the litigant prove that counsel were ineffective, but that the 

ineffectiveness caused an outcome that would not have occurred but for the 

ineffectiveness.

III. ANALYSIS

Before reaching the merits of the matter, we must first address two 

procedural issues.

A. Procedural Concerns

First, Huffman’s substantive arguments are dispersed across both the 

Original Order and the Supplemental Order. The Commonwealth argues that by 

only naming the Supplemental Order in his notice of appeal, the issues addressed

in the Original Order are not properly before this Court. We disagree. The 
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Supplemental Order essentially absorbed the Original Order by stating “this Order 

[] supplements, and does replace, the court’s [O]riginal Order entered July 27, 

2022[.]”

Additionally, the Kentucky Supreme Court has repeatedly emphasized

“the importance of hearing cases on the merits and preserving the constitutional 

right to an appeal, casting dismissal as a disfavored remedy for a violation of 

procedural rules.” Ky. Farm Bureau Mut. Ins. Co. v. Conley, 456 S.W.3d 814, 818 

(Ky. 2015) (citing Ready v. Jamison, 705 S.W.2d 479, 481-82 (Ky. 1986)). As 

such, we shall treat this appeal as encompassing both the Original Order and the 

Supplemental Order, and only those orders.1

Second, the circuit court questioned its jurisdiction due to the wording 

of Huffman’s verification. RCr 11.42 requires verification of the allegations made 

therein:

(2) The motion shall be signed and verified by the movant 

and shall state specifically the grounds on which the 

sentence is being challenged and the facts on which the 

movant relies in support of such grounds. Failure to 

comply with this section shall warrant a summary 

dismissal of the motion.

1 The circuit court dismissed Huffman’s prior RCr 11.42 motions for egregious errors in 

verification. Huffman did not appeal those RCr 11.42 motion denials, and those orders are not 

before us on review. We note, when RCr 11.42 motions are dismissed on jurisdictional grounds, 

like failure to properly verify, they do “not serve as an adjudication on the merits.” See Williams 

v. Commonwealth, No. 2017-CA-001794-MR, 2019 WL 4389159, at *1, *3 (Sep. 13, 2019). 

That means subsequent RCr 11.42 motions “would not be successive.” Id.
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Huffman’s verification ended with “the statements it contains are true 

and correct to the best of his knowledge and belief.” The court questioned if “the 

verification should have stopped with ‘true and correct’ to comply with the 

purpose of the RCr 11.42 verification requirement – that in making allegations, the 

movant is subject to prosecution for perjury for falsehoods.” The court opined as 

to whether the qualifier “to the best of his knowledge and belief” undermines the 

verification requirement. While we are cognizant of the court’s concerns, we 

believe it acted correctly in proceeding to the merits. True, RCr 11.42(2) provides 

that a failure to comply with its verification requirement “shall warrant a summary 

dismissal of the motion.” However, here, Huffman adequately verified his motion.

“Verification is defined as a formal declaration made in the presence 

of an authorized officer, such as a notary public, by which one swears to the truth 

of the statements in the document.” Taylor v. Ky. Unemployment Ins. Comm’n, 

382 S.W.3d 826, 834 (Ky. 2012) (internal quotation marks omitted) (quoting

BLACK’S LAW DICTIONARY (7th ed. 1999)). Kentucky Courts have held that 

substantial compliance cannot save an RCr 11.42 motion from dismissal if it was 

not properly signed and verified. Bowling, 981 S.W.2d at 548. Here, however, 

these circumstances are different. We find substantial compliance does save this

motion despite the addition of ambiguous language “to the best of his knowledge 

and belief.”
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The procedure for obtaining relief pursuant to the 

provisions of RCr 11.42 must be complied with. The 

motion for relief must be in writing, verified by the 

movant, and state specifically the grounds of challenge 

and the facts in support thereof. . . . It is jurisdictional that 

the terms and provisions of RCr 11.42 must be complied 

with, even though a substantial, and not an absolute, 

compliance is adequate.

Cleaver v. Commonwealth, 569 S.W.2d 166, 169 (Ky. 1978).

Here, Huffman’s written declaration states that it was sworn to “under 

oath”; the statements are “true and correct”; and he signed before a notary. While 

the addition of the ambiguous language “to the best of his knowledge and belief” is 

not best practice, we grant this pro se litigant leniency in finding he substantially 

complied with the verification requirement. See Beecham v. Commonwealth, 657 

S.W.2d 234, 236 (Ky. 1983) (“Pro se pleadings are not required to meet the 

standard of those applied to legal counsel.”). Again, our finding of substantial 

compliance is consistent with the guidance from our Kentucky Supreme Court’s 

emphasis on proceeding on the merits when legally possible. Conley, 456 S.W.3d 

at 818.

B. The Merits 

As for the merits, on appeal Huffman makes an overarching, general 

claim that the jury was not properly advised as to the applicable law. Specifically, 

Huffman argues his trial counsel were ineffective because they did not present (1) 
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jury instructions of reckless homicide, (2) a “choice of evils” defense, nor (3) a 

proper self-defense claim.2

First, Huffman argues “Counsel was ineffective for not requesting an 

[instruction] of Reckless Homicide. . . . If such had been done, the jury would’ve 

at best (and most appropriately) been properly instructed on the offense that’s most 

applicable to the elements & what actually transpired.” However, the 

Supplemental Order states, “Defense counsel tendered a Reckless Homicide

instruction, but the court determined it was not authorized[,]” referencing Sturgeon 

v. Commonwealth, 521 S.W.3d 189 (Ky. 2017). Therefore – because defense 

counsel did request reckless homicide instructions – Huffman’s issue is rooted in 

the circuit court’s refusal to give the jury reckless homicide instructions, not with 

his counsel’s “ineffectiveness.” As such, Huffman’s issue with jury instructions 

was not due to the ineffective assistance of counsel – as is pertinent to this present 

appeal – but is with the circuit court’s denial of those instructions. Issues with jury 

instructions should have been challenged within Huffman’s direct appeal. Martin 

v. Commonwealth, 203 S.W.3d 173, 175 (Ky. App. 2006) (citation omitted). 

Issues that could have been raised at direct appeal, are not appropriate for a 

subsequent RCr 11.42 motion. See Teague v. Commonwealth, 428 S.W.3d 630, 

2 Huffman argued other claims, but he waived them in his appellate reply brief, did not properly 

preserve them, and/or did not argue with enough clarity to be discernible for appellate review. 
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633 (Ky. App. 2014) (“An RCr 11.42 motion is limited to the issues that were not 

and could not be raised on direct appeal.”). Therefore, this claim fails as Huffman 

does not even begin to show that counsel’s representation “fell below an objective 

standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S. Ct. at 2064.

Second, Huffman argues his counsel were ineffective for failing to 

present a “choice of evils” defense. He states that he “never intended the death of 

Mr. Hogg . . . and only engaged in unlawful conduct to avoid the ‘beating’ he was 

going to receive at the hand of the alleged victims.” However, as the circuit court 

aptly stated in the Supplemental Order, Huffman was not entitled to such a 

defense:

First, under section (1) the defense is not available for 

intentional homicide. Section (2) makes the defense 

available only “when the defendant believes . . . [his 

conduct] to be necessary to avoid an imminent public or 

private injury greater than the injury which is sought to be 

prevented by the statute defining the offense charged . . . ” 

(and that his belief is not wanton or reckless). Huffman 

stabbed Michael Hogg to death and was charged with 

Complicity to Murder. Huffman himself could have 

received no greater injury at the hands of the unarmed 

Michael Hogg . . . .

Moreover, the choice of evils defense requires an 

imminent threat with no reasonable and viable alternative 

to criminal conduct . . . . Senay v. Commonwealth, 650 

S.W.2d 259, 260 (Ky. 1983). . . . Huffman and his codefendants had cell phones. . . . From the time the two 

parties encountered each other inside the bar and began 

arguing over the missing liquor until they reached the back 

of [the bar], Huffman could have called the police, or 
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asked Smith to call the police, to intervene in the argument 

and thereby avoid the nightmare that followed, a point 

brought out during the trial. Huffman had a “reasonable 

and viable alternative, other than the violation of the law 

for he . . . [stood] charged.” The record evidence 

conclusively fails to support a choice of evils defense, and 

counsel was not ineffective for not pursuing that defense. 

We agree. Counsel were not ineffective for “failing” to present an 

inapplicable defense. Again, Huffman does not show that his counsel’s 

representation “fell below an objective standard of reasonableness.” Strickland, 

466 U.S. at 688, 104 S. Ct. at 2064. 

Third, Huffman argues that his trial counsel were ineffective for 

failing to “properly present self-protection and imperfect self-protection and 

therefor[e] the trial judge refused to give such on jury instructions.” However, 

again, Huffman’s issue is rooted in the court’s refusal to give the jury self-defense 

instructions, not with this counsel’s ineffectiveness. Again, Huffman’s counsel 

tendered self-defense jury instructions, but the court refused to allow them. As 

such, Huffman’s issue with jury instructions was not due to the ineffective 

assistance of counsel but is with the circuit court’s denial of those instructions and 

was appropriate for his direct appeal, not his RCr 11.42 motion. Martin, 203 

S.W.3d at 175; Teague, 428 S.W.3d at 633. It bears repeating, Huffman does not 

show that his counsel’s representation “fell below an objective standard of 

reasonableness.” Strickland, 466 U.S. at 688, 104 S. Ct. at 2064. 
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Finally, the court did not abuse its discretion denying an evidentiary 

hearing because the issues, as presented, could be conclusively resolved by an 

examination of the record. Knuckles v. Commonwealth, 421 S.W.3d 399, 401 (Ky. 

App. 2014) (citations omitted).

IV. CONCLUSION

Therefore, we find no abuse of discretion in the circuit court’s denial 

of Huffman’s request for postconviction relief. As such, we AFFIRM the Letcher 

Circuit Court.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

James R. Huffman, IV, pro se Daniel Cameron

LaGrange, Kentucky Attorney General of Kentucky

Matthew R. Krygiel

Assistant Attorney General

Frankfort, Kentucky