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RENDERED : NOVEMBER 26, 2008 TO BE PUBLISHED

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RALPH S . BAZE

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2007-SC-000601-MR APPELLANT

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ON APPEAL FROM ROWAN CIRCUIT COURT HONORABLE WILLIAM B . MAINS, JUDGE NO . 93-CR-00001 APPELLEE

COMMONWEALTH OF KENTUCKY OPINION OF THE COURT BY JUSTICE CUNNINGHAM AFFIRMING

Appellant, Ralph Baze, appeals from the Rowan Circuit Court's order denying his CR 60 .02 motion to vacate a judgment he claims is void. After a careful review of the record, we affirm.
FACTUAL HISTORY

This appeal represents the sixth request for post-conviction relief from the judgment in which Appellant was sentenced to death for the double murder of two policemen. The evidence reveals that the murders occurred when police officers, Bennett and Briscoe, were attempting to serve Appellant with five felony warrants from Ohio. Appellant hid behind a brush pile near the police cruiser and opened fire on the officers as they had their backs to him. The officers took cover behind the police cruiser, with one shooting back from over the trunk and the other shooting from over the hood. While Officer Bennett was attempting to obtain something from the backseat of the vehicle, Appellant

shot him three times in the back. Officer Briscoe continued to fire his weapon while taking cover behind the police cruiser. Upon realizing that he was out of ammunition, Officer Briscoe turned and tried to run away. While Briscoe was attempting to flee, Appellant shot hire twice in the back. After Briscoe was down, Appellant stood over him and fired a final shot into the back of his head . PROCEDURAL HISTORY Although the crimes were committed in Powell County, it was agreed that Appellant would not receive a fair trial in Powell County . As such, venue was transferred to Franklin County. After the case was transferred to the Franklin Circuit Court, Powell Circuit Judge, James L. King, recused himself because one of the victims had previously been his bailiff. After Judge King's recusal, Special Judge William B . Mains of Rowan County was assigned to the case . Five days after Judge Mains was appointed Special Judge, he transferred the case sua sponte from Franklin County to Rowan County. Judge Mains was of the opinion that he held the authority to make such a transfer, as both sides had previously agreed to transfer the case from Powell County. Judge Mains cited a busy trial docket in Rowan County as a primary reason for the transfer. In our previous opinion denying RCr 11 .42 post-conviction relief to Appellant, we recounted that the Commonwealth and defense counsel both initially objected to the transfer. Baze v. Commonwealth, 23 S .W.3d 619, 626 (Ky. 2000) . However, we noted that both parties subsequently agreed to the transfer. Id. A Rowan County jury was empanelled and a verdict of guilty was reached after three days of deliberation. During the penalty phase, the jury sentenced 2

Appellant to death . Appellant appealed the conviction as a matter of right and this Court affirmed the judgment of the Rowan Circuit Court . Baze v. Commonwealth, 965 S .W.2d 817 (Ky. 1997) . Appellant did not raise the issue of venue or jurisdiction in his direct appeal. Appellant then petitioned for writ of certiorari to the Supreme Court of the United States . Certiorari was denied on April 20, 1998 . Baze v. Kentucky, 523 U .S . 1083, 118 S.Ct. 1536, 140 L .Ed .2d 685 (1998) . He thereafter filed a RCr 11 .42 ineffective assistance of counsel motion, which was denied . Baze v. Commonwealth, 23 S .W.3d 619 (Ky . 2000) . On appeal, we affirmed, finding that Appellant received effective assistance of counsel. Id. Next, Appellant petitioned for federal habeas relief pursuant to 28 U.S .C.

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