Bowling v. Parker

MEMORANDUM OPINION AND ORDER

FORESTER, Chief Judge.

This matter is before the Court on the petition of Thomas Clyde Bowling, Jr., by counsel, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 . The respondent, by counsel, has filed an answer [Record No. 25], to which the petitioner has, with the permission of the Court, filed a traverse [Record No. 66].

FACTUAL BACKGROUND

At approximately 7:00 a.m., on Monday, Apxil 9, 1990, in the parking lot in front of the Earley Bird Cleaners, in Lexington, Fayette County, Kentucky, Tina and Eddie Earley, a couple in their twenties, and their two-year-old son, Chris, were shot as they arrived to open the family dry cleaning business. Eddie was found lying on the pavement between the open passenger door of his car and the door to the business; he was bleeding from four bullet wounds. Tina, who was still sitting in the car, had been shot and wounded three times; and Chris, found on the ear floor under his mother, had a wound to his foot. The son would recover, but his parents were pronounced dead at the hospital minutes later that morning.

Police arriving at the scene found damage to the driver’s side of the Earleys’ car; collected bullets from outside and inside the vehicle; and recovered debris consistent with a collision, including paint and broken pieces of headlight from another car. The gunshots had alerted a few witnesses, whose observations varied when they gave descriptions of the shooter to the police. In the early stages of the investigation, it was determined that the debris came from a light blue 1981 Chevrolet Malibu and a 1981 Malibu was registered in Fayette County to Thomas Clyde Bowling, Jr. The police pursued a broad ■search for the suspect’s car and considered several theories of what could have occasioned the young couple’s murder.

On the following day, April, 10, 1990, police received a telephone call from the petitioner’s sister, Pat Gentry. She stated that she and her mother, Iva Lee Bowling, were worried because his mother had not seen them son/brother, “T.C.” Bowling, since he left the mother’s Lexington home at appimimately 6:00 a.m. the preceding day; she and her mother had just discovered his. damaged car on family property in rural Powell County, Kentucky; the car met the description of the vehicle they had heard was being sought in the Earley shootings; and they feared that these facts, together with Bowling’s recent de

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pressed and unstable mental state, had caused Mm to take his life. Later in the day, the sister telephoned her Knoxville home and discovered that the petitioner had come to her home and was asleep on her couch.

Lexington and Knoxville police departments immediately coordinated a SWAT team of officers who arrested the petitioner at the Gentry home without incident and took him to jail. There his clothing was taken and examined and no blood residue found. Meanwhile, at approximately midnight, the police recovered the petitioner’s car on the family’s Powell County property and towed it to Lexington. The broken pieces of headlight and other debris recovered from the crime scene and paint smears on the Earleys’ vehicle were later matched to the petitioner’s car. A search of the car interior yielded only an empty thermos bottle; there were no traces of blood.

The following day, April 11, 1990, the police returned to Powell County. There they found a partially buried .357 magnum revolver and other items belonging to the petitioner which had been stashed in various places on the property. Police later found a man who reported that he had sold a .357 magnum to Mr. Bowling a few days prior to the shootings.

According to the instant 197-page petition, signed by counsel, the petitioner has no memory of the day of the crime. While being held in the Lexington jail, he was interviewed by mental health experts, whom he told he had no recollection of that day; he also told them he had no previous history of blackouts.

1

THE TRIAL

On June 20, 1990, Bowling was indicted in Fayette Circuit Court on two counts of intentional murder and one count of assault. Although initially represented by a member of the Kentucky Department of Public Advocacy, at the time of his arraignment in the Fayette Circuit Court, Sixth Division, on June 22, he was represented by three retained counsel: Russell Baldani, William Summers, and Tucker Richardson. From the beginning, the Commonwealth announced that it would provide “open file” discovery to the defense and would seek the death penalty. After a number of pretrial motions by defense counsel and several pretrial conferences, the original trial date of October 15, 1990 was changed to December 10, 1990; Bowling underwent a neurological examination; his counsel obtained a court-ordered psychological evaluation; and the defense was granted extra peremptory challenges.

On Monday, December 10, 1990, jury selection commenced. Jurors had filled out a special jury questionnaire, designed by agreement of counsel, as well as the standard one; and they were voir dired first generally as a group and then, with

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regard to the death penalty, individually in chambers. The court’s stated goal was to qualify from the 99-person jury pool 44 jurors, which would allow the defendant 18 peremptory challenges, the Commonwealth 12 peremptories, 12 people remaining to be jurors and 2 alternates. Two days later, stating that it was concerned that the original qualified juror pool would be too small, the court continued down the jury pool list and ended up qualifying 48 jurors. Just before trial, however, after striking a juror for cause, thus leaving 47 qualified, the court overruled the defense motion to grant it additional peremptories and, instead, struck the three extra jurors, numbers 45, 46, and 47.

On the third day, December 12, the jury was seated, and the guilt phase of the trial commenced.

2

After opening arguments, the Commonwealth began its presentation of evidence. A total of 25 witnesses was presented, including the testimony of three individuals who heard the shots and became the only eye witnesses. The first, Larry Turner, thought he heard backfires while he was walking to work approximately a block away; upon his approach to the scene, he saw the two bodies, heard the child crying, and continued on to work to call 911. Another man, David Boyd, testified that from where he sat in the driver’s seat of his car at the nearest stoplight, he looked back over his shoulder to see two cars on the cleaners’ parking lot and a man standing beside the dark car. He was holding a gun with both hands and shooting into the car. Record No. 57 at 1272. The shooter then moved as if to get into the other vehicle, but did not do so; he went back around to look at the scene before coming around again and driving off. Boyd described the assailant’s car as a light blue 1979 or 1980 Malibu and described the assailant as a white male, about six feet tall, medium build, wearing a black jacket and brimmed hat. The third eyewitness, Norman Pullins, who had seen events from the window of a nursing home across the street from the cleaners, could not be located by either the Commonwealth or by the defense. By agreement of the parties, the police officer who interviewed Pullins the morning of the shootings introduced the audiotape of that interview, which was played for the jury.

Id.

at 1286-92 .

Police testimony concerned the securing of the crime scene, immediate care of the victims, and the beginning of an investigation. The Commonwealth introduced numerous photographs of the scene, including the view from the K-Mart parking lot through a slatted fence to the Earley Bird Cleaners, close-up photographs of the evidence collected, and a videotape of the entire area. Record No. 57 at 1340, et seq. One detective described his towing the Earleys’ car later that day and going to the Bowlings’ Powell County property the next day to tow Bowling’s car; both were secured as evidence.

Id.

Officer Mark Merriman, of the Kentucky State Police, related his locating the Powell County property late on April 10. He found there the petitioner’s damaged Malibu, in the thickets; a shed containing an orange jacket, an orange Little Caesar’s t-shirt, and a black Rangers hat; and an unused outhouse into which had been thrown a “little beer case,” a four-pack of wine coolers, an empty wine cooler bottle, and the Malibu’s license plate. Record No. 58 at 1498-1510. Jim O’Brien, one of police officers searching the Powell County property, testified to his discovery of the

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.357 magnum, which was found under an upside down metal pan; the gun was wrapped in clothing and partially buried under leaves. Record No. 58 at 1494. Another officer stated that the gun was fully loaded and had been secured by him for evidence. Detective William Henderson, who was in charge of the investigation, related the events surrounding Bowling’s arrest in Knoxville; told of retrieving Bowling’s personal effects at that time: a black jacket, umbrella, and backpack containing an atlas, blanket, personal papers, and a homemade sign with “K-N-O-X” written on it; and described locating and interviewing several witnesses, including two who could place Bowling on the road in front of the Powell County lot on the evening of the murders, April 9. Record No. 59 at 1513.

In addition to the officials involved in the investigation, the Commonwealth called experts from state agencies. Dr. John C. Hunsaker, III, forensic pathologist and the state medical examiner, testified that Eddie had four gunshot wounds and Tina three; both had been shot from behind; the wounds were to major organs such that neither victim had a chance of surviving them; and the cause of death of both was blood loss and shock. Record No. 58 at 1368-1406. An auto theft police expert told of matching the glass, plastic and chrome debris from the scene to the damage on Bowling’s car (Record No. 59 at 1546), and the State Police Crime Laboratory’s professional in Trace Evidence matched not only those pieces but also paint from Bowling’s vehicle to the Ear-leys’ and paint from the Earleys’ car which was left on Bowling’s

(Id.

at 1563). When the prosecutor asked, “[C]an you say that in fact Mr. Bowling’s vehicle is the one which rammed into the Earley vehicle?” she responded, “Yes, sir, in my opinion.”

Id.

at 1575 . A state ballistics expert identified the recovered gun as a Smith and Wesson .357 and stated that bullets shot from it and those recovered from the victims and crime scene both ended up marked with five grooves of the same width, with a right twist and similar scratch marks; however, he could not positively swear that those used at the crime scene were shot by that particular gun.

Id.

at 1577-99 . He also testified that gunpowder residue was found in the right front pocket of the petitioner’s black jacket.

Id.

Lay witnesses for the Commonwealth included Clay Brackett, an eighty-year-old man who traded in firearms at flea markets and who testified that the recovered gun looked like the one he sold to Mr. Bowling a few days before the killings. He identified the defendant as being the man to whom he sold it. Record No. 58 at 1481. Two witnesses testified to Bowling’s presence in Powell County on the evening of April 9. Jack Mullins had seen Bowling driving on the road along which his and the Bowlings’ property is located; had noticed the car abandoned in the bushes there later that night; and gave an in-court identification of the defendant as the man he saw. Jack Strange, another resident of the same road, testified that he had spoken to a man in a black jacket with umbrella and bag who was out for a walk on that road that evening. Additionally, he identified the man he saw on the road as Bowling when he saw his picture in the paper at the time of Bowling’s arrest, when he viewed a police photo line-up during the week before trial, and when he testified at trial, indicating the defendant in the courtroom.

The Commonwealth also called some of the defendant’s family members. The first was his sister, Pat Gentry, who was visiting at her mother’s home, where the defendant had recently been living, during the weekend before the Monday shootings.

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She testified that Thursday or Friday was the last day he worked his usual job driving for Little Caesar’s Pizza deliveries; on Friday night he showed the family a gun he had bought; and he showed signs of depression all weekend. After she left on Sunday evening, their mother called her on Tuesday morning, the day after the shootings, very worried because “T.C.” had not returned to her home Monday evening; she didn’t know where he was; a news article about the shootings described his car; and during a drive with her on Sunday afternoon, he had talked about where he wanted to be buried and what to do with his possessions. Record No. 58 at 1413-20. Mrs. Gentry drove to Lexington and the two women drove to Powell County, where they found Bowling’s car but not Bowling. Upon their return to Lexington, they called the police and told them what they had found and why they were worried. The sister confirmed that her brother had several brimmed hats and at least one short black jacket. Record No. 58 at 1428. Also called was Bowling’s mother, Iva Lee Bowling, who further described her son’s activities that preceding weekend, including a three hour Sunday afternoon drive, when he purportedly continued the theme of death, telling her that his time had run out and if he was missing for three or four days to look for him on the Powell County property. Record No. 58 at 1436. The afternoon included their stopping for approximately thirty minutes in a K-Mart parking lot which was behind the nursing home property across from the Earley Bird cleaners; Bowling first parked behind a side yard fence with a slat missing, and then he moved to be directly behind the nursing home. On being recalled, Bowling’s sister, Pat Gentry, reported that her mother had relayed to her Bowling’s parting words before he left the house early that Monday morning: “Today is the day.” Record No. 58 at 1449.

The defense presented no witnesses. After the prosecution rested, one of Bowling’s counsel asked for time to “again” tell his client of his right to testify. After-wards, they announced that the defendant would not testify

3

and that the defense would rest. Defense counsel relied on their cross-examinations of witnesses and their arguments, which emphasized the lack of any eyewitness identification of their client as the shooter and the fact that the prosecution’s case was based on circumstantial evidence. Through both the state’s direct and defense counsel’s cross-examination of family members, they had brought out the defendant’s background, particularly his behavior during the weekend preceding the shootings. Clyde Brack-ett had been questioned about his trading in handguns without keeping records; also his memory and eyesight were admitted to be poor. Counsel had elicited from eyewitness David Boyd, who had described a white male matching Bowling’s description, admissions that he did not remember hair color or that he had told a police detective at the time that the attacker had long brown hair, dark complexion, and possibly a mustache, none of which describe Bowling. The two witnesses from Powell County, however, proved unshakable in their identifications of Bowling. In the cross-examination of the ballistics expert, defense counsel gained the admission that the .357 magnum was one of perhaps millions of weapons that could have fired the fatal shots. Record No. 59 at 1609. Through other of the Commonwealth’s witnesses, it was established that none of the

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defendant’s possessions, including his clothing, car, and other items recovered from him at his arrest or from the Powell property, had any blood evidence; no fingerprints of the defendant’s were found on the gun or at the scene; and the only lead residue which was found on any of Bowling’s belongings was inside a left pocket of his jacket and could have been from a gun or from bullets. Record No. 58 at 1536.

Both sides argued for jury instructions which the court refused, the prosecution seeking one on transferred intent and the defense being unsuccessful in them requests for instructions on,

inter alia,

extreme emotional disturbance, manslaughter I and II, reckless homicide, and circumstantial evidence. Record No. 60 at 1654-1700. After the court’s jury instructions were read, at approximately 9:00 a.m. on Friday, December 14, 1990, counsel gave closing arguments and the case was submitted to the jury for a decision on guilt.

The jury found the petitioner guilty of the two adult Earleys’ intentional murders and of fourth degree assault on the son. Record No. 60 at 1787. Because it was late in the day and the penalty phase of the trial would not commence until the following Monday morning, the defense moved to sequester the jury over the weekend, a request which was overruled.

Id.

at 1788 .

On Monday morning, December 17, 1990, at 8:30 a.m., Bowling, his defense counsel, and the prosecution were in chambers on the defendant’s

pro se

request to discharge his attorneys.

Id.

at 1799 . Upon questioning from the court, Bowling contended that he wanted to discharge his attorneys, have a mistrial declared, and have new counsel appointed prior to the sentencing phase of the trial. As grounds, he stated that his attorneys did not spend enough time with him, even an hour total; he had no opportunity to tell them of witnesses; that at least one of his attorneys was short with him when he tried to talk; none discussed a defense with him; and he was unhappy with them because they failed to put on any defense at all. After the court questioned Bowling’s feelings, offered its opinion that the defense attorneys’ performance was “above average” and their strategy “was a good defense,” and considered alternatives to Bowling’s requests, the court overruled his motions.

Id.

at 1805-1831 .

The penalty phase of the trial began. The Commonwealth declined to give an opening statement. The defense spoke briefly and then presented six witnesses. These included three non-family members: a Little Caesar’s co-worker whom Bowling had befriended and helped over the last several years; a Fayette County jail employee who called the petitioner’s conduct since entry there seven months before “exemplary”; and a supervisor from the jail who reported no problems with Bowling at all. Mrs. Bowling was recalled to relate details of the defendant’s background, including her son’s childhood and being slow to walk and talk; his having only a ninth grade education and taking jobs that didn’t involve any thinking; his three marriages, the last breaking up just weeks before the shootings; their having mental illness run in the family; and details of her son’s increasingly strange behavior before the shootings, particularly the weekend preceding the April 9 shootings. Record No. 61 at 1857-85. She also quoted him on a visit at the jail as saying, “I pray for the Earleys every night, Mom, but I didn’t know those people.”

Id.

at 1894 . His sister Pat was also recalled. She traced her brother’s mental/emotional deterioration further back, beginning in February with his being distressed over the failure of his last marriage, for which he had

*840

sought her and her mother’s support, help and/or intervention several times, the sister once having driven to Lexington in the middle of the night because of his call. Pat Gentry also detailed his drinking, inability to keep food down, depression, and strange behaviors during the weekend before the shootings.

Id.

at 1939 . Finally, the defense called Jason Bowling, the defendant’s thirteen-year-old son by his second wife. He testified that the defendant was a good father and he pled with the jury not to hurt him. Id at 1940-42.

Again the defendant did not testify and was questioned about that decision by the court on the record. Id at 1944-49. Again the court denied his counsel’s drafted jury instructions, including one listing for the jury the specific mitigating circumstances of mental illness, extreme emotional distress, intoxication, and model jail conduct. After the giving of the court’s instructions and counsel’s closing arguments, the jury was out until late in the evening. When the jurors returned, they had found one statutory aggravating factor, that of multiple intentional deaths, and they recommended two death sentences. Id at 2022.

Sentencing was postponed once for Bowling to decide whether he wished the court to consider a psychological evaluation of him which the court had ordered before the trial, in case an insanity defense was introduced. Record No. 46. After he informed the court that he wished it considered, the sentencing hearing was held on January 4, 1991. Record No. 62. Again the defendant chose to make no statement, and it was his trial counsel who pled for his life. In accordance with the recommendations of the jury, the trial court sentenced the petitioner to death for each of the two murders and twelve months in jail for the child’s assault. His execution was set for January 6, 1992.

PROCEDURAL HISTORY AFTER TRIAL

Bowling’s convictions and sentences underwent mandatory review by the highest court in the state, pursuant to Kentucky Revised Statute (KRS) 532.075, with court-appointed attorneys from the Kentucky Department of Public Advocacy (DPA), as now, representing him.

4

The Supreme Court of Kentucky addressed 22 legal issues and affirmed the convictions and sentences on September 30, 1993, two justices vigorously dissenting.

5

Bowling v. Commonwealth,

873 S.W.2d 175 (1993), is the opinion, as modified on denial of rehearing, March 24, 1994 [hereinafter, this Court will refer to the state court’s final adjudication of Bowling’s claims on direct appeal as

Bowling

/]. On October 3, 1994, the Supreme Court of the United States de

*841

nied Bowling’s petition for writ of certiorari.

Bowling v. Kentucky,

513 U.S. 862 , 115 S.Ct. 176 , 130 L.Ed.2d 112 (1994).

Under Kentucky’s Rules of Criminal Procedure (RCr), the next step in the state courts is a post-conviction collateral attack, which is instituted with an RCr 11.42 motion to vacate, set aside or correct sentence, filed in the trial court. In the instant case, by this time, a different judge, Lewis G. Paisley, was presiding in Fayette Circuit Court’s Sixth Division. On February 28, 1995, with yet another Assistant Public Advocate representing him,

6

the petitioner filed (1) a notice of intent to file an RCr 11.42 motion; (2) a motion for appointment of new counsel because Bowling was unhappy with appellate counsel Rid-dell’s representation; and (3) a motion for a status conference for scheduling matters related to an ineffective assistance of counsel claim. Trial Record [hereinafter “TR” followed by the Volume, “Vol.”, and then the page number] Vol. 4 at 486-91. Except for an April 24, 1995 status conference on the issue of appointing the petitioner new counsel,

7

no further action was taken until January 3,1996, when the Governor of Kentucky set the petitioner’s execution for February 1, 1996. Two weeks later, on January 18, 1996, Bowling’s counsel moved for stay of execution in the trial court, but the motion was denied. The trial court ruled that because no RCr 11.42 motion had been filed, only an intent to file the motion, the court lacked jurisdiction to grant a stay. Upon the DPA’s January 26 emergency motion to the Supreme Court of Kentucky, temporary stays were issued to petitioner and three other prisoners, while the highest state court decided whether their filing of a notice of intent to file an RCr 11.42 motion may serve as a jurisdictional basis for the circuit court to issue a stay of execution.

In

Bowling v. Commonwealth,

926 5.W.2d 667 (1996), the Supreme Court of Kentucky held that filing a notice of intent to file an 11.42 motion is insufficient to serve as a basis for issuance of a stay; until the RCr 11.42 motion itself is filed in the circuit court, there is no procedure by which the court can issue a stay of the execution.

'Id.

at 669. The court also held that once the 11.42 motion is filed, however, amendments thereto “shall be freely given when justice so requires.”

Id.

at 670 (quoting Kentucky’s Civil Rule 15.01, identical to the language in Fed.R.Civ.P. 15(a)).

Accordingly, on January 26,1996, counsel Keys and another DPA attorney

8

filed Bowling’s formal RCr 11.42 motion [TR Vol. 5 at 612], together with a request for additional time in which to either file an amended or supplemental motion. By order of February 8, 1996, the circuit court granted the request for more time, giving petitioner 120 days from the January 26 filing date in which to supplement the motion. On May 28, 1996, a supplemental RCr 11.42 motion was filed, but it was not verified, as required by the rule. On June 6, 1996, eight days later and clearly after the running of the 120-day deadline, the petitioner filed another supplemental motion, identical to that of May 28 but a verified version.

On October 1, 1996, the circuit court ordered both versions of the supplemental motion stricken. After finding that Bowling “has engaged in a willful and systematic attempt to delay the proceedings in this case,” the court struck the May 28 supplemental motion on the ground that it was

*842

not signed and verified and struck the second, the June 6 version, because amendment or supplementation of an 11.42 motion requires leave of court and when the 120 days expired, his right to amend or supplement expired.

9

TR Vol. 5 at 763-64. “While the Court is cognizant of its duty to freely allow amendment where justice so requires pursuant to CR 15.01, the Court finds that the Movant’s conduct and the lack of merit in the claims raised in the Supplemental 11.42 warrant a different conclusion.”

Id.

at 764. Additionally, the court denied discovery which the petitioner’s counsel had requested and denied all relief, both on state law grounds and also because it found that, of all the “allegations of error raised by the Movant ... [n]one merit discussion.” TR Vol. 5 at 765. Bowling moved the court for reconsideration, a motion which was denied on April 29, 1997, and, with new DPA counsel,

10

he then appealed the state court’s ruling.

On October 15, 1998, the actions of the trial court were unanimously affirmed. In

Bowling v. Commonwealth,

981 S.W.2d 545 (1998) [hereinafter

Bowling II],

the Supreme Court of Kentucky quoted from the trial court’s opinion and found no error under Kentucky law in the trial court’s striking the supplemental RCr 11.42 motions, striking the other unauthorized pleadings, or its refusal to grant an eviden-tiary hearing.

Id.

at 549 . The court then examined the claims in Bowling’s original RCr 11.42 motion and those additional claims presented in the stricken supplemental motion. Finding no merit in all of the claims, Kentucky’s highest court again affirmed the petitioner’s convictions and sentences.

Id.

at 553 . After his motion for a rehearing was denied, Bowling filed another petition for writ of certiorari to the Supreme Court of the United States; it was denied on June 21, 1999.

Bowling v. Commonwealth,

527 U.S. 1026 , 119 S.Ct. 2375 , 144 L.Ed.2d 778 (1999).

On the following day, June 22, 1999, the petitioner, by current DPA counsel, filed in this Court motions seeking to proceed herein

in forma pauperis

and to have themselves appointed as Bowling’s counsel to prepare a federal habeas corpus petition in his behalf. These motions were granted on June 28, 1999, with a deadline set for the filing of the petition [Record No. 3]. The instant petition [Record No. 17] was timely filed on August 12, 1999. The Court also granted the petitioner’s subsequent motions for a stay of execution and for preparation of a written transcript of the trial court record [Record Nos. 11,15].

The respondent filed his answer [Record No. 25] to the petition on September 30, 1999, together with a memorandum of law [Record No. 26], Thereafter, the Court ordered the continuation of the stay of execution [Record No. 27]; granted the petitioner’s motion for preservation of evidence [Record No. 32]; and granted his motion to permit the petitioner to file a traverse to the response and/or amendments to the original petition within thirty days after the filing of the state court transcripts in the record [Record No. 33]. On January 7, 2000, the state court transcript was filed herein [Record Nos. 43-62]; and on February 7, 2000, the petitioner filed his traverse [Record No. 66].

STANDARD OF REVIEW

Petitioner’s filing of his application for a writ of habeas corpus on August 12, 1999

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was more than three years after the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Therefore, and the parties do not dispute the issue, the AEDPA amendments to habeas corpus law apply to the instant case.

See Lindh v. Murphy,

521 U.S. 320 , 117 S.Ct. 2059 , 138 L.Ed.2d 481 (1997);

Williams v. Coyle,

167 F.3d 1036 (6th Cir.1999).

The AEDPA,

inter alia,

altered the standard of review that a federal court must employ when deciding whether to grant a writ of habeas corpus. It is revised § 2254(d) and (e) which govern the inquiry as to whether or not habeas corpus relief is appropriate in this case.

1. Claim Adjudicated in State Court

The appropriate standard of review depends on whether a claim was decided on the merits in state court. If a claim was decided in state proceedings, 28 U.S.C. § 2254 (d) (1997), as amended, now provides the applicable standard, as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254 (d) (1997).

Under the clear language of the statute, if a claim was decided on its merits by the state courts, a petitioner will be entitled to federal habeas relief only if he can establish that the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254 (d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” 28 U.S.C. § 2254 (d)(2).

The Supreme Court of the United States has assisted the courts by clarifying the language of § 2254(d)(1) in

[Terry] Williams v. Taylor,

529 U.S. 362 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000). Justice O’Connor, writing for the majority, acknowledged that in the AEDPA, with its new § 2254 language,

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Congress has “placed a new restriction on the power of federal courts to grant writs of habeas corpus to state prisoners.”

Id.

at 399, 120 S.Ct. 1495 . In Section II, she examined § 2254(d)(1) in detail and found that it defines two separate categories of cases in which a state prisoner may obtain federal habeas relief with respect to a claim adjudicated on the merits in state court. Agreeing with the Fourth Circuit as to these two categories, the high court first described what “contrary to ... clearly established Federal law” means. The Court stated that in order for the writ to issue, a state court decision must be “contrary to” Supreme Court precedent in the sense that

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the state court arrive[d] at a conclusion opposite to that reached by this Court on a question of law ... [or] the state court confronted] facts that are materially indistinguishable from a relevant Supreme Court precedent and arrive[d] at a opposite to ours.

Id.

at 405, 120 S.Ct. 1495 .

As to the second alternative in subsection (d)(1), a state court decision rests on an “unreasonable application of’ clearly established federal law if “the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s ease.”

Id.

at 413 , 120 S.Ct. 1495 . If the federal habeas court finds such an “unreasonable application,” it may grant the writ.

“[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.”

Id.

at 411 , 120 S.Ct. 1495 . The Court emphasized that reasonableness of the state court’s opinion is judged by an objective standard, rather than a subjective one. “Stated simply, a federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established federal law was objectively unreasonable.”

Id.

at 409 , 120 S.Ct. 1495 . The Court noted that the term “unreasonable” is “no doubt difficult to define,” and did not try to define it, stating only that “it is a common term in the legal world, and, accordingly, federal judges are familiar with its meaning.”

Id.

at 410 , 120 S.Ct. 1495 .

The Sixth Circuit has applied

Williams ,

“interpreting it to mean that even if this court ‘believe[s] that a state court incorrectly applied federal law, [it] must refuse to issue the writ of habeas corpus if [it] finds that the state court’s decision was a reasonable one.’

Machacek v. Hofbauer,

213 F.3d 947, 953 (6th Cir.2000)....”

Simpson v. Jones,

238 F.3d 399 (6th Cir.2000).

Under the AEDPA, Congress has also limited the legal authority on which this Court may rely when addressing a habeas petition; the Court must look exclusively to Supreme Court case law. 28 U.S.C. § 2254 (d)(1);

Williams,

529 U.S. at 412 , 120 S.Ct. 1495 .

See Harris v. Stovall,

212 F.3d 940, 944 (6th Cir.2000) (citing

Herbert v. Billy,

160 F.3d 1131, 1135 (6th Cir.1998)). If the issue is a mixed question of fact and law, then § 2254(d)(1) will apply.

Harpster v. Ohio,

128 F.3d 322, 326-27 (6th Cir.1997),

cert. denied,

522 U.S. 1112 , 118 S.Ct. 1044 , 140 L.Ed.2d 109 (1998). Therefore, for every claim adjudicated on the merits in state court, this Court must determine whether the state court’s decision was “contrary to, or involved an unreasonable application of,” Supreme Court jurisprudence. 28 U.S.C. § 2254 (d)(1);

see Coe v. Bell,

209 F.3d 815, 822-23 (6th Cir.),

cert. denied,

529 U.S. 1084 , 120 S.Ct. 1716 , 146 L.Ed.2d 516 (2000).

When a federal habeas petitioner challenges the findings of fact made by a state court, the standard is set forth in § 2254(d)(2). A federal court cannot issue a writ unless a petitioner establishes that the state’s adjudication on the merits “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

Id.

Additionally, for questions of fact, the petitioner faces § 2254(e)(1),

12

which provides that the

*845

state court’s determination is entitled to the presumption of correctness and that the habeas applicant has the burden of rebutting that presumption by clear and. convincing evidence. Deference to factual determinations applies whether those determinations are made by a state trial court or a state appellate court.

See Sumner v. Mata,

449 U.S. 539, 546 , 101 S.Ct. 764 , 66 L.Ed.2d 722 (1981).

Thus, for claims adjudicated in state court, this Court may grant the writ only if the petitioner can establish that the state court decision involving a question of law or a mixed question of law and fact (1) was “contrary to” federal law as determined by the Supreme Court,

ie.,

arrived at a conclusion opposite to that reached by the Supreme Court on a question of law or decided the case differently than the Supreme Court has on a set of materially indistinguishable facts or (2) involved an unreasonable application of federal law as determined by the Supreme Court,

ie.,

unreasonably applied the governing legal principle from Supreme Court precedent to the facts of the prisoner’s case ( 28 U.S.C. § 2254 (d)(1)); or, for a question of fact, the state decision (3) was based on “an unreasonable determination of the facts” in light of the evidence before it ( 28 U.S.C. § 2254 (d)).

See Williams v. Taylor,

529 U.S. at 402-13 , 120 S.Ct. 1495 .

Stated differently, this Court must uphold the state’s decision unless this Court finds that the state decision is contrary to federal law as determined by the Supreme Court; or is an unreasonable application of federal law as determined by the Supreme Court; or is based on an unreasonable determination of the facts in light of the evidence presented.

2. Claims Not Adjudicated in State Court

When a state court has not adjudicated a habeas petitioner’s constitutional claims on the merits, the AEDPA severely restricts the capacity of a federal habeas court to conduct a hearing to develop the evidence relating to the claim. Since 1996, 28 U.S.C. § 2254 (e)(2) has provided as follows:

(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that—

(A) the claim relies on—

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2254 (e). Thus, after the AEDPA, the command is that the Court will not hold an evidentiary hearing on a claim which was not developed in the state court proceedings unless one of two exceptions applies to the claim: the claim relies on a new, previously unavailable rule of

*846

constitutional law made retroactive to cases on collateral review by the Supreme Court ((2)(A)(i)); or it relies on facts that could not have previously been discovered ((2)(A)(ii)). If one of the two exceptions under subsection (A) applies, then an additional requirement in order to obtain an evidentiary hearing is that the claimant show that the facts underlying the claim are sufficient to establish by clear and convincing evidence that, but for the constitutional error, no reasonable factfinder could have found the applicant guilty ((2)(B)). The latter requirement has been described as “the actual innocence” standard.

See United States ex rel. Assenato v. Nelson,

1998 WL 704327 (N.D.Ill.1998).

The first clause of the statute triggers these stringent requirements. They are called into play only “[i]f the applicant failed to develop the factual basis of a claim in State court proceedings.” § 2254(e)(2). This statutory language has been scrutinized by the Supreme Court in another recent case of the same name,

Williams v. Taylor,

this petitioner being Michael Williams and the citation being 529 U.S. 420 , 120 S.Ct. 1479 , 146 L.Ed.2d 435 (2000). A unanimous Court held that “failure to develop” a claim does not mean simply that the applicant “did not develop” the claim.

Id.

at 431 , 120 S.Ct. 1479 . “Under the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.”

Id.

at 432, 120 S.Ct. 1479 . The Court noted the impact:

[I]n requiring that prisoners who have not been diligent satisfy § 2254(e)(2)’s provisions rather than show cause and prejudice, and in eliminating a freestanding “miscarriage of justice” exception, Congress raised the bar Keeney imposed on prisoners who were not diligent in state-court proceedings.... ... [T]he opening clause of § 2254(e)(2) codifies Keeney’s threshold standard of diligence, so that prisoners who would have had to satisfy Keeney’s test for excusing the deficiency in the state-court record prior to AEDPA are now controlled by § 2254(e)(2).

Id.

at 434, 120 S.Ct. 1479 (citing

Keeney v. Tamayo-Reyes,

504 U.S. 1 , 112 S.Ct. 1715 , 118 L.Ed.2d 318 (1992)).

The Court instructed, “The question is not whether the facts could have been discovered but instead whether the prisoner was diligent in his efforts.”

Id.,

529 U.S. at 435, 120 S.Ct. 1479 . Diligence for purposes of the opening clause depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court; it does not depend upon whether those efforts could have been successful.

Id.

Applying this inquiry, the Court found that petitioner Michael Williams’ failure to develop two of his issues, those of juror bias and prosecutor misconduct, was not due to a lack of diligence. Therefore, he was not barred from an evidentiary hearing on these issues by § 2254(e)(2), and the Court remanded the case for further proceedings to examine only these claims. “Our analysis should suffice to establish cause for any procedural default.... Questions regarding the standard for determining the prejudice the petitioner must establish to obtain relief on these claims can be addressed by the Court of Appeals or the District Court in the course of further proceedings.”

Id.

at 444, 120 S.Ct. 1479 .

3. Claim Raised and Rejected but State Court Does Not Articulate Reasoning

The Supreme Court has not addressed how to apply § 2254(d) when a claim is

*847

raised and denied but there is no state court decision articulating its reasons. However, several circuit courts have reasoned, “We owe deference to the state court’s result, even if its reasoning is not expressly stated.”

Aycox v. Lytle,

196 F.3d 1174, 1177 (10th Cir.1999). Under this rationale, where the state court has not articulated its reasoning, federal courts are obligated to conduct an independent review of the record and applicable law to determine whether the state court decision is contrary to federal law, unreasonably applies clearly established law, or is based on an unreasonable determination of the facts in light of the evidence presented.

Id.

at 1177-78 (“we must uphold the state court’s summary decision unless our independent review of the record and pertinent federal law persuades us that its result contravenes or unreasonably applies clearly established federal law, or is based on an unreasonable determination of the facts in light of the evidence presented”);

Schaff v. Snyder,

190 F.3d 513, 523 (7th Cir.1999);

Delgado v. Lewis,

181 F.3d 1087 , 1091 n. 3 (9th Cir.1999),

vacated on other grounds,

528 U.S. 1133 , 120 S.Ct. 1002 , - L.Ed.2d -(2000).

One of these circuits is the Sixth, which examined the above-cited cases of other circuits and followed their lead in

Harris v. Stovall,

212 F.3d 940, 943 (6th Cir.2000). The court held that where a state court, although deciding a claim, does not offer some explanation of its decision, a federal court must conduct an independent review of the state court’s decision.

Id.

at 943 . This independent review requires the federal court to “review the record and applicable law to determine whether the state court decision is contrary to federal law, unreasonably applies clearly established law, or is based on an unreasonable determination of the facts in light of the evidence presented.”

Id.

The Sixth Circuit noted that the independent review, however, is not a full,

de novo

review of the claims, but remains deferential because the court cannot grant relief unless the state court’s result is not in keeping with the strictures of the AEDPA. That court directed that where a state court decides a constitutional issue by form order or without extended discussion, a ha-beas court should then focus on the result of the state court’s decision, applying the standards articulated above.

Id.

Applying the standards of the AEDPA, as defined in

Williams,

the appellate court in

Harris

noted that the district court first had to determine what was the “clearly established federal law as determined by the Supreme Court of the United States” [§ 2254(d)(1) ] at “the time of the relevant state court decision”

[Williams,

529 U.S. at 412, 120 S.Ct. 1495 ]. Because the Supreme Court precedent existing when the petitioner raised the claim therein did not dictate or compel a different result, the state court’s affirmance of the conviction was not an unreasonable application of clearly established federal law as determined by the Supreme Court at that time.

Id.

at 944-45. Therefore, the dismissal of the § 2254 petition was affirmed by the Sixth Circuit.

With these standards in mind, the Court begins its examination of Bowling’s petition for writ of habeas corpus.

PRELIMINARY MATTERS

A state petitioner for a federal writ of habeas corpus may obtain relief if he can demonstrate that he is in custody pursuant to the judgment of a state court in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254 .

Prerequisites for Federal Habeas Corpus Review

Before addressing the merits of any claim in a proceeding pursuant to 28

*848

U.S.C. § 2254, the Court must find that certain prerequisites for granting relief are present. Specifically, the Court must find that: (1) petitioner is in “custody”; (2) petitioner has exhausted the remedies available to him in state court; and (3) petitioner did not waive or forfeit the right to present a particular issue by failing to follow state court rules to ensure that the state courts would review that issue on appeal. The first of these is satisfied because the petitioner is in custody at the Kentucky State Penitentiary, under a sentence of death. The next two prerequisites call for some discussion.

Federal review is barred if the petitioner either failed to exhaust his state remedies

(see

28 U.S.C. § 2254 (b)(1)(A)) or his conviction rests on an independent and adequate state procedural ground

(see Coleman v. Thompson,

501 U.S. 722, 729-32 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991)). Principles of comity and federalism underlie both the Court’s long-standing exhaustion doctrine

(see

28 U.S.C. § 2254 (b) for its codification;

Murray v. Camer,

477 U.S. 478, 489 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986)) and the doctrine of procedural default, with its cause and prejudice standard

(Coleman v. Thompson,

501 U.S. at 730 , 111 S.Ct. 2546 ). The Supreme Court has recognized the inseparability of the exhaustion rule and the procedural default doctrine in

Coleman,

501 U.S. at 732 , 111 S.Ct. 2546 (the independent and adequate state ground doctrine ensures that the state’s interest in correcting their own mistakes is respected in federal habeas eases), and

O’Sullivan v. Boerckel,

526 U.S. 838, 848 , 119 S.Ct. 1728 , 144 L.Ed.2d 1 (1999) (concluding that the procedural default doctrine was necessary to protect the integrity of the federal exhaustion rule). The requirement of giving state courts the first opportunity to cure a constitutional claim stems from the understanding that state courts are obliged to follow federal law and from the desire for comity between the state and federal court systems.

Id.

at 844-45 , 119 S.Ct. 1728 .

Exhaustion

28 U.S.C. § 2254 (b)(1) specifically bars habeas relief “unless it appears that ... the' applicant has exhausted the remedies available in the courts of the State.... ”

Id.

That subsection of the statute contains a few limited exceptions to the exhaustion requirement.

13

Moreover, the state may expressly waive the exhaustion requirement. 28 U.S.C. § 2254 (b)(3). Additionally, the habeas statute now provides for denial of an application for a writ of habe-as corpus on the merits, “notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254 (b)(2).

If a state court would find unexhausted claims procedurally barred from state review, they are deemed exhausted.

See Harris v. Reed,

489 U.S. 255 , 263 n. 9, 109 S.Ct. 1038 , 103 L.Ed.2d 308 (1989) (“[A] federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state would hold the claim procedurally barred.”);

Coleman v. Thompson,

501 U.S. at 735 n. 1, 111

*849

S.Ct. 2546 (If the petitioner failed to exhaust and the state court would find the claims procedurally barred, “there is a procedural default for purposes of federal habeas review.”).

In the instant case, under Kentucky law, Bowling has pursued both his direct appeal and one 11.42 collateral attack to the state Supreme Court. Under Kentucky’s Rule of Criminal Procedure (“RCr”) 11.42, the prisoner may file a motion to vacate, set aside, or correct a conviction or sentence, with the requirement that the “motion shall state all grounds for holding the sentence invalid of which the movant has knowledge. Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding.” RCr 11.42(3). The movant cannot raise issues which were raised and decided on direct appeal.

Stanford v. Commonwealth,

854 S.W.2d 742 (Ky.1993),

cert. denied,

510 U.S. 1049 , 114 S.Ct. 703 , 126 L.Ed.2d 669 (1994). Nor is a prisoner permitted a successive 11.42 motion to raise issues which were or could have been raised in a first motion.

McQueen v. Commonwealth,

949 S.W.2d 70, 71 (Ky.1997).

All claims not brought on the direct appeal or in that collateral challenge are generally defaulted.

See Gall v. Parker,

231 F.3d 265, 316 (6th Cir.2000). Although there are exceptions for situations for an error which was not known or discoverable,

14

the instant petitioner has presented no claims which would fit under these exceptions. Therefore, Bowling has no further remedy “available in the courts of the State.” 28 U.S.C. § 2254 (b)(1)(A). In his Answer to the petition, respondent has admitted Bowling’s exhaustion of the issues herein “because of procedural default.” Record No. 25 at 10.

Procedural Default

The respondent has argued that several of the petitioner’s claims are procedurally defaulted because Bowling failed to bring them in either the direct review or collateral proceedings. Therefore, under the doctrine of procedural default, these claims are precluded from review in this Court.

In

Wainwright v. Sykes,

433 U.S. 72 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977), the Supreme Court held that when a habeas petitioner fails to obtain consideration of a claim by a state court because of his failure to comply with a state procedural rule, the claim is procedurally defaulted and may not be considered by the federal court on habeas review unless the petitioner shows cause for his failure and prejudice flowing therefrom.

Id.

at 80, 84-87 , 97 S.Ct. 2497 . The procedural default doctrine standard applies alike whether the default in question occurred at trial, on appeal, or on state collateral attack.

See, e.g., id.

(failure to object at trial);

Murray v. Carrier, 477

U.S. 478, 490-492, 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986) (failure to raise claim on appeal); and

see generally Harris v. Reed,

489 U.S. 255, 262 , 109 S.Ct. 1038 , 103 L.Ed.2d 308 (1989).

Later, in

Coleman v. Thompson,

501 U.S. 722 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991), the Court discussed

Sykes

and its progeny, recognized the importance of

*850

honoring state procedural rules, and stated the doctrine of procedural default, as follows:

We now make it explicit. In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default, and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Id.

at 750, 111 S.Ct. 2546 . Again, reasons of comity and federalism underlie the doctrine. “Like a prisoner who fails to exhaust state remedies, a habeas petitioner who has failed to meet the State’s procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.”

Id.

at 732 , 111 S.Ct. 2546 .

Therefore, federal courts “will not review questions of federal law decided by a state court if the decision of that court rests upon a state law ground that is independent of the federal question and adequate to support the judgment.”

Coleman,

501 U.S. at 729 , 111 S.Ct. 2546 . If the state court judgment clearly and expressly states that the judgment was based on a state procedural rule, then the claim is procedurally defaulted.

See Harris v. Reed,

489 U.S. at 263 , 109 S.Ct. 1038 (1989).

Even if there is no clear expression of the basis of the state’s decision, the Supreme Court in

Coleman

also provided a presumption to guide the Court’s analysis:

[Federal courts] will presume that there is no independent and adequate state ground for a state court decision when the decision “fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.”

Id.

at 734-45, 111 S.Ct. 2546 (quoting

Michigan v. Long,

463 U.S. 1032, 1040-41 , 103 S.Ct. 3469 , 77 L.Ed.2d 1201 (1983)). Accordingly, when the last state court decision appears to rest primarily on federal law or was interwoven with federal law and does not clearly and expressly rely on an independent and adequate state ground, a federal court may address the petition.

Coleman,

501 U.S. at 735 , 111 S.Ct. 2546 .

However, if a state court reaches the merits of a federal claim, then “it removes any bar to federal court review that might otherwise have been available,” and the claim is properly before the federal habeas court.

Wainwright v. Witt,

469 U.S. 412 , 431 n. 11, 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985). If the last state court from which the petitioner sought review affirmed the conviction both on the merits, and, alternatively, on a procedural ground, the procedural default bar is invoked and the petitioner must establish cause and prejudice in order for the federal court to review the petition.

See Rust v. Zent,

17 F.3d 155, 161 (6th Cir.1994);

Simpson v. Jones,

238 F.3d 399 (6th Cir.2000).

If the last state court judgment contains no reasoning, but simply affirms the conviction in a standard order, the federal habeas court must look to the last “reasoned state judgment” rejecting the federal claim and apply a presumption that later unexplained orders upholding the judgment or rejecting the same claim rested upon the same-ground.

Ylst v. Nunnemaker,

501 U.S. 797, 803 , 111 S.Ct. 2590 , 115 L.Ed.2d 706 (1991).

*851

Therefore, this Court begins any analysis of whether a claim is procedurally defaulted by looking to the last reasoned state court judgment on the petitioner’s claim and then applying the

Coleman

presumption.

Cause and Prejudice

Once a claim is determined to be defaulted procedurally, a habeas petitioner can overcome procedural default in two instances. The first is establishing “cause” and “prejudice.” The analysis is whether a petitioner has demonstrated (1) cause for the default and actual prejudice arising from the error or (2) that failure to consider the claim will result in a fundamental miscarriage of justice.

See Coleman,

501 U.S. at 750 , 111 S.Ct. 2546 . A showing of either is a burden which the petitioner must carry in order for the federal court to review the claim.

Id.

Satisfying the “cause” standard requires that the petitioner show that “some objective factor external to the defense impeded counsel’s efforts” to previously raise the claim in the state court.

McCleskey v. Zant,

499 U.S. 467, 493 , 111 S.Ct. 1454 , 113 L.Ed.2d 517 (1991) (quoting

Murray v. Carrier,

477 U.S. at 488 , 106 S.Ct. 2639 ). When a petitioner fails to establish “cause” to excuse a procedural default, a court does not need to address the issue of prejudice.

See Smith v. Murray, 477

U.S. 527, 533, 106 S.Ct. 2661 , 91 L.Ed.2d 434 (1986).

If the petitioner has established cause, the Court must address whether he has established the prejudice prong of the inquiry. “Prejudice” requires a strong showing of actual harm.

See United States v. Frady,

456 U.S. 152 , 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982). The petitioner shoulders “the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.”

Id.

at 170 , 102 S.Ct. 1584 . Accordingly, the prejudice component is not satisfied if there is strong evidence of petitioner’s guilt and a lack of evidence to support his claim.

Id.

at 172 ,102 SUt. 1584.

The only alternative to the cause and prejudice requirement is the prisoner’s demonstrating that a “fundamental miscarriage of justice” will result from enforcing the procedural default; this exception is limited to those rare cases “where a constitutional violation has probably resulted in the conviction of one who is actually innocent.”

Murray v. Carrier, 477

U.S. 478, 496, 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986);

Coleman,

501 U.S. at 750 , 111 S.Ct. 2546 . Such a claim must be supported by “new reliable evidence” that was not presented at trial.

Schlup v. Delo,

513 U.S. 298, 324 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995). Moreover, actual innocence means factual innocence, not mere legal insufficiency.

Bousley v. United States,

523 U.S. 614, 623 , 118 S.Ct. 1604 , 140 L.Ed.2d 828 (1998).

With this approach in mind, the Court now examines each of Thomas Clyde Bowling’s claims.

I.

INEFFECTIVE ASSISTANCE OF COUNSEL

Applicable Standards

The petitioner asserts that his retained counsel, Summers, Baldani and Richardson, rendered ineffective assistance at his trial. The Sixth Amendment right to the assistance of counsel is made obligatory upon the state by the Due Process Clause of the Fourteenth Amendment.

Gideon v. Wainwright,

372 U.S. 335, 342-44 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963).

*852

In reviewing the petitioner’s first habeas claim, the Court must initially ascertain whether the Supreme Court of the United States has announced “clearly established law” which sets forth the standard for determining claims of ineffective assistance of counsel. Last year, in

Williams v. Taylor,

529 U.S. at 391, 120 S.Ct. 1495 , the Supreme Court stated that the standard for habeas review of such claims was set out in

Strickland v. Washington,

466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). The Supreme Court in

Strickland

described two components which the claimant must establish to prevail on this claim:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id.

at 687 , 104 S.Ct. 2052 . To establish the deficient performance prong, a “defendant must show that counsel’s representation fell below an objective standard of reasonableness.”

Id.

at 688 , 104 S.Ct. 2052 . In the Court’s words, “[T]he proper standard for attorney performance is that of ‘reasonably effective assistance.’ ”

Id.

at 687 , 104 S.Ct. 2052 . The claimant must identify acts that were “outside the wide range of professionally competent assistance.”

Id.

at 689 , 104 S.Ct. 2052 .

The proper analysis of an attorney’s performance includes a requirement of deference; “the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”

Id.

at 690 , 104 S.Ct. 2052 . Therefore, a defendant’s challenge to counsel’s decisions must overcome the presumption that the challenged action might be considered sound trial strategy.

Id.

at 689 , 104 S.Ct. 2052 . Additionally, conduct of counsel must be evaluated from counsel’s perspective at the time the relevant decision was made and not with the benefit of hindsight.

Id.

To establish the prejudice component, the petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Id.

at 694 , 104 S.Ct. 2052 . The showing must be “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”

Id.

at 687 , 104 S.Ct. 2052 . In making this determination, the court must look to the totality of the evidence before the jury.

See id.

at 695 , 104 S.Ct. 2052 .

The Supreme Court later clarified the standard in

Lockhart v. Fretwell,

506 U.S. 364 , 113 S.Ct. 838 , 122 L.Ed.2d 180 (1993), wherein the Court directed that the prejudice inquiry not focus solely on mere outcome determination. Rather, attention must be given to

whether the result of the proceeding was fundamentally unfair or unreliable. Unfairness or unreliability does not result unless counsel’s ineffectiveness deprives the defendant of a substantive or procedural right to which the law entitles him.

Id.

at 369-70 , 113 S.Ct. 838 . The Sixth Circuit has framed the question as whether, “[o]n balance,” counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

*853

McQueen v. Scroggy,

99 F.3d 1302 , 1311— 12 (1996) (quoting

Strickland,

466 U.S. at 686 , 104 S.Ct. 2052 ).

A court reviewing an ineffective assistance claim need not address both components of the inquiry if the petitioner fails to make a sufficient showing as to one.

See Strickland,

466 U.S. at 697 , 104 S.Ct. 2052 . Indeed, in

Strickland ,

the Court voiced an explicit preference for “disposing of an ineffectiveness claim on the ground of insufficient prejudice.”

Id.

Additionally, this Court must keep in mind that both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.

Id.

at 698 , 104 S.Ct. 2052 . Therefore, the instant petitioner is entitled to relief if the state court’s decision rejecting his ineffective assistance of counsel claim was either “contrary to, or involved in unreasonable application of,” the established law of

Strickland. Williams,

529 U.S. at 391, 120 S.Ct. 1495 .

Treatment in State Court

The instant petitioner’s complaints that his trial counsel rendered ineffective assistance of counsel ineffective were made and addressed at every level of the state court proceedings.

First, during the trial itself, between the guilt and penalty phases, Bowling sought to have his counsel removed. On the Monday morning that the penalty phase of the trial began, with both the prosecution and defense counsel being present but saying nothing, the judge questioned the petitioner as to his alleged dissatisfaction with current counsel,

in camera.

The colloquy between Bowling and the judge included the following:

MR. BOWLING: I don’t feel like [counsel] have represented me in any form or fashion. I don’t feel like they have offered me any defense. I don’t feel like they are in my corner whatsoever.

THE COURT: ... Have they failed to do anything that you requested?

MR. BOWLING: I don’t feel like they have prepared me for the case I don’t feel like they have talked to me or seen me as they should have before the case. The many times that I have seen them and talked to them they didn’t hold over so we could go into court. I don’t feel like they have done anything, really.

THE COURT: Again, let me ask, have they failed to do anything you asked them to do? Have you told them what you defense is and ...

MR. BOWLING: That’s my whole point, Your Honor. They — we have not talked about this at all. There was nothing prepared before the trial. We have not worked out anything, any form or fashion, for the case.

THE COURT: The basic responsibility is on the Defendant to inform his attorneys of the facts of the case. Have you done that?

MR. BOWLING: I’ve not had ample chance to see these people or talk to them. I’ve not spent an hour, total, with any of them from day one.

THE COURT: Well, even if you spent an hour — as little as an hour with them, would that not be ample time for you to tell them your defense ...

MR. BOWLING: No, sir.

THE COURT: Or, some part of it?

MR. BOWLING: Maybe a small part; the few times that we have talked, the times that I would mention certain factors; this, that or the other, it was like I was stupid on the subject we were on....

THE COURT: ... Have you given your attorneys the name of any witness that would testify as to what your defense is?

*854

MR. BOWLING: There are numerous witnesses that could be called. I feel like there were a lot of witnesses that were called that was not cross-examined, that was not called about. There could have been a lot of light shined on this. Yes, there is a lot that could have been done. But, to be given an opportunity to say this to them before they rested, no, I wasn’t given that opportunity and haven’t been since.

THE COURT: Well, you understand that attorneys are trained and your attorneys in this case are not only well-trained, but experienced in their trial of cases. And, in the experience of the Court they presented the appearance of well-prepared competent attorneys. The failure to cross-examined is required more experience and skill than aimless cross-examination. Do you understand that?

MR. BOWLING: Yes.

THE COURT: Some of the witnesses, as near as I could tell in monitoring, they cross-examined those witnesses where there was some hope of obtaining helpful information. And, they declined to cross-examine those witnesses which no help information could be obtained. They made, so far as I could determine, competent trial strategy decisions. It may not have appeared to you so....

THE COURT: ... I fail to see where your attorneys have failed you. And, I have — the only thing you have said is that they have not spent enough time with you.

MR. BOWLING: Well, the mere fact, Your Honor, that they didn’t call any witnesses whatsoever in my defense, that they didn’t put any defense on at all should be enough. And, there is a lot of information and a lot that could be said about this trial from those that they did not ask. The Court doesn’t see how it is, because they don’t know what it is, because it wasn’t brought out. I know. THE COURT: That is what, I’m getting at. Did you give the information as to the name and whereabouts of witnesses who could bring out information that you think would be helpful to you?

MR. BOWLING: Some of these people that I am talking about, the burden was not on me to get this to them....

THE COURT: Well, you’re saying to me, then, that you don’t know of any witness ...

MR. BOWLING: Yes, I do know

THE COURT: That — well, have you told the attorneys of these witnesses?

MR. BOWLING: Your Honor, I’ve had no opportunity to tell the attorneys of these witnesses or talk about this subject in depth or anything otherwise. I was lucky to get the time of day....

MR. BOWLING: ... I feel like I have had a very unfair, a very unjust trial. I don’t how anybody could come to an unbias decision when they don’t have— you explained and all of us did to the jurors, that they have all .of the evidence and have heard all of the evidence before they can reach a decision. They haven’t heard it. It has not been brought out. So, at this time, I would like to have a mistrial. I want a mistrial, because I haven’t — haven’t been represented ....

THE COURT: Let me ask you; why have you — did you wait until the verdict before bringing these things to my attention?

MR. BOWLING: It come to my mind to bring it to your attention when my defense was the only ones standing there when this was done.... The defense

*855

rested. I wanted to say something then. I didn’t know what the procedure was.

THE COURT: Now, you understand that there is a legitimate trial strategy in not having you testify, and not putting on any defense?

MR. BOWLING: No, sir, I do not understand that. That was not told to me that way. It wasn’t explained to me. That is one of the things I was telling you; I did not know how to address you or what to do. I don’t know these things and it wasn’t told to me how it would be — how it would affect good or bad. It was told to me that Mr. Larson would tear me up on the defense stand and stuff like that. But, it wasn’t explained to me what the outcome would be ... That would be the end of it there....

THE COURT: Keeping in mind that we are now approaching the penalty phase, and if you assume that the Court would not grant a mistrial, would it not be better for your to appear with your attorney and accept the defense that they have prepared?

MR. BOWLING: I don’t feel that way. I pray upon the Court for a mistrial. I pray upon the Court to release these attorneys. I am not qualified to represent myself. I pray upon the Court to appoint me an attorney....

THE COURT: The ultimate responsibility for a fair trial rests with the trial judge. And, to the best of my ability, I will attempt to do that within the parameters of what I consider to be the law. It is my judgment, at this time, that you have not shown adequate cause for discharging your attorneys.

MR. BOWLING: I have more.

THE COURT: Well, tell me more.

MR. BOWLING: I have already made reference to the fact that the one time that I called Mr. Summers to come over to the jail to talk to me, and ... he in fact told me that I was wasting his time, ... and stormed out, and left me there that day. I made reference that they didn’t cross-examining several witnesses that I know — know has a lot to shine a light on this case. There are some that I agree with you that cross-examining wouldn’t have shown any light on the case, or anything in my favor. So, I know some of them, yes, didn’t need to be cross-examined, but there is a lot that did. I have talked about how they didn’t spend any time with me. They haven’t talked to me about this case. I don’t think they spent an hour, total, between the three of them with me at any time before the trial to get a defense, and talk about a defense.... There was no defense for my side. No one was called. I don’t think that leaves anything to be desired. I ask for a mistrial, because I never had a fair and impartial trial.... I object, Your Honor, to going on with the sentencing phase of the trial. I, again, tell you I am not qualified to represent myself. And, I ask to be appointed an attorney to help work some of these things out.

THE COURT: Mr. Bowling, I believe it is too late to either continue the sentencing phase or to appoint another attorney to represent you. Obviously, if the case must go to trial on the sentencing phase, today, there would not be time for that attorney to prepare any defense. And, you not being qualified to represent yourself, that could result, I think, in disaster for you. It is the opinion of the Court, in my best judgment, that you have not stated adequate cause for discharging your attorneys, nor have you convinced me that the defense that they have provided was not adequate, compe

*856

tent. You say that you have various witnesses that would testify to helpful things. But, you have not told your attorneys about them. And, you say you haven’t had time. You haven’t informed the Court of any conflict that you had with your attorneys prior to now. I — I have no basis upon which to say that your attorneys have not represented you well, because my observation of their conduct in court, my knowledge of their experience, Mr. Baldani and Mr. Summers in particular, is a vast experience — far more experience cases of this type than any other attorneys that I could appoint you at this time. I have no quarrel. I monitored the case. It is part of my duty to determine if indeed they are performing as a reasonably competent attorney should perform. And, I found their performance not only competent, but above average....

THE COURT: ... [L]ooking at it from the standpoint of professional competence, it is the opinion of this Court that the strategy employed by your attorneys had a better chance of winning than any other strategy I could think of. The— and, when I say ‘winning’, based upon the proof put on by the Commonwealth from which the jury found you guilty, that proof was so strong that the best you could have hoped for, it seems to me, was not intentional murder. And, the defense put on by your attorneys was designed to achieve wanton murder, rather than intentional, and save you from the death penalty or the potential death penalty, life without parole, and give you a lesser penalty. That was a good defense considering the facts of this case.

MR. BOWLING: I beg to differ.

THE COURT: Well, of course, you do, because — but, I’m just trying to explain to you, as best I can, the basis of my ruling. And, I have to judge it as I see it. It is my judgment, at this time, that it would be a disaster for you to appear in court without any attorney. And, it would be equally disastrous for you to appear with an attorney that had just been appointed this morning. Therefore, I have to say in the interest of a fair trial, I must ask your present counsel to continue and present the defense they had planned to present. Your objections are of record and will be reviewed by the Appellate Court, no matter what happens. I might mention that as part of the defense that your attorneys provided you, that you may not be aware of, was numerous motions, pretrial motions, including the motion to suppress the automobile.

MR. BOWLING: Uh-huh; none of them went through.

THE COURT: ... I can understand your disappointment at the verdict of the jury. But, I cannot find that the trial should be declared a mistrial, and I cannot find that it should be continued. And, therefore, I' have to overrule your motions....

Record No. 60 at 1806-27.

On Bowling’s direct appeal, he complained that the trial court committed error in violation of state and federal due process requirements by not conducting a hearing on the issue of his dissatisfaction with counsel. The Kentucky Supreme Court ruled as follows:

The trial judge acted within his sound discretion when he refused to declare a mistrial or appoint new counsel. Bowling did not complain of his trial counsel’s performance until after the jury returned a guilty verdict. Bowling himself made neither timely nor specific objec

*857

tion to the defense provided by his three attorneys. No objection was made to the conduct of an immediate hearing by the trial judge which afforded the defendant an opportunity to express his dissatisfaction with the performance of his defense team. In addition, the trial judge permitted Bowling an opportunity to fully set forth the basis for his alleged dissatisfaction.

The trial judge properly ruled that Bowling failed to show any sufficient cause for discharging his attorneys. The trial judge determined that the trial strategies by Bowling’s counsel had a better chance of success than any of which the trial judge could think in light of the strong evidence of guilt presented by the prosecution.

Bowling I,

873 S.W.2d at 179-180 , VIII.

The third and most thorough treatment of the ineffective assistance of counsel claim was in the state post-conviction proceedings, Bowling’s Motion to Vacate, Set Aside or Correct Sentence,- filed in the trial court pursuant to RCr 11.42. Although given permission to file a supplement to his original motion, Bowling’s later-filed supplemental motions were stricken for his failure to adhere to certain portions of the state rule. In ruling on the original motion, the trial court, now with a different judge presiding, wrote, in pertinent part as follows:

While the Court has seriously reviewed and considered the voluminous pleadings filed in this case, as a result of the Movant’s conduct, only the claims of the Movant’s original 11.42 shall be addressed in this Opinion. The Court finds that the Movant has engaged in a willful and systematic attempt to delay the proceedings in this case.... None of these additional finding[s] alter the inexorable conclusion that the Movant received a fair trial and stands properly convicted and sentenced.

Despite the unequivocal warnings to movants to state with specificity the constitutional violations alleged and the factual basis for the same, the Movant has opted for the impermissible shotgun approach. RCr 11.42;

Stanford v. Commonwealth,

854 S.W.2d 742 (1993);

Lucas v. Commonwealth,

465 S.W.2d 267 (1971). The Movant and his counsel are operating under a delusion as to the nature of an 11.42 proceeding. The 11.42 of record is a blatant attempt to retry a case in which a jury of his peers unanimously found the Movant guilty. That verdict has withstood considerable appellate review. “[T]he presumption that a criminal judgment is final is at its strongest in collateral attacks on that judgment.”

Strickland v. Washington,

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

The Court has spent considerable time reviewing the allegations of error raised by the Movant. The allegations range from those previously rejected on direct appeal to those which should have been raised on direct appeal to sanction-able allegations. None merit discussion. The movant’s assertion that if he is executed a lingering doubt will remain as to the real killer is of no consequence legally. The standard is beyond a

reasonable doubt

not beyond a lingering doubt, even in death penalty cases.... Quite simply, the Movant has failed to meet his burden under RCr 11.42. Wherefore, it is hereby ORDERED that the Movant’s Motion for Relief under RCr 11.42 be, and same hereby is OVERRULED.

TR Vol. 5 at 764, 766 (footnotes omitted). Bowling moved for reconsideration, a motion which was denied April 29, 1997, and then appealed the circuit court’s ruling.

*858

On October 15, 1998, the actions of the trial court were unanimously affirmed by the Supreme Court of Kentucky. In

Bowling v. Commonwealth,

981 S.W.2d 545 (Ky.1998)

[Bowling II],

the court quoted from the trial court’s opinion and Kentucky case law and found no error under Kentucky law in the trial court’s striking of' the supplemental RCr 11.42 motions or its refusal to grant an eviden-tiary hearing.

Id.

at 549 . “Having laid that foundation,” the court then examined each of Bowling’s ten (10) ineffective assistance of counsel claims in his original motion on the merits, using the United States Supreme Court’s

Strickland

standard.

After rejecting each claim, the court concluded, in pertinent part, as follows:

Having reviewed each allegation of ineffective assistance of trial counsel, we conclude that Appellant has failed to demonstrate any claims which are not refuted by an analysis and review of the trial record. Many of Appellant’s claims are nothing more than bald assertions without any factual basis. Such does not justify an evidentiary hearing pursuant to RCr 11.42.

Similarly, none of Appellant’s claims of ineffective assistance of counsel entitle him

to

relief under RCr 11.42. The standard for determining ineffective assistance of counsel [was] announced in

Strickland v. Washington,

466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 .... Strickland requires a movant to show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense.

Strickland,

supra at 687 , 104 S.Ct. 2052 .... In addition, Strickland mandates that judicial scrutiny be highly deferential. A court making this evaluation “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable assistance.”

Id.

at 689 , 104 S.Ct 2052 ....

A court in considering an ineffectiveness claim must “consider the totality of the evidence before the judge or jury” and “assess the counsel’s overall performance throughout the case in order to determine whether the ‘identified acts or omissions’ overcome the presumption that counsel rendered reasonable professional assistance.”

Id.; Kimmelman v. Morrison, 477

U.S. 365, 386, 106 S.Ct. 2574 , 91 L.Ed.2d 305 (1986).... Under Strickland it is not enough that counsel erred and Appellant’s trial reached an unfavorable result. Instead, Appellant must determine that, absent counsel’s errors, there exists a “reasonable probability” the jury would have reached a different verdict.

Id.

Id. Strickland,

supra, at 694 , 104 S.Ct. 2052 .... We do not believe that in light of all of the circumstances, counsel’s performance was “outside of the wide range of professionally competent assistance.”

Id.

at 690 , 104 S.Ct. 2052 .

Bowling II,

981 S.W.2d at 550-551 .

Kentucky’s highest court also went on to individually address the additional claims of ineffective assistance of counsel which had been presented in the stricken supplemental motion. “Notwithstanding that his supplemental motion was struck by the trial court, in the interest of judicial economy we will review the seven additional claims of ineffective assistance of counsel.”

Id.

at 551 . The court found that the additional claims, like those in the original motion, “have either been decided on direct appeal or constitute harmless error, and are consequently insufficient to invalidate Appellant’s conviction.”

Id.

at 552 . Therefore, Bowling was not entitled to relief on any of his claims of ineffective assistance of counsel.

Id.

After the Supreme Court of the United States denied his petition for writ of cer-

*859

tiorari, the petitioner came to this Court with his arguments regarding counsel divided into four categories, listed A-D, below. This Court now considers each claim of ineffective assistance of counsel individually, asking whether the state court decisions were based on an unreasonable determination of the facts or are contrary to or involved an unreasonable application of the

Strickland

standards, under § 2254(d)(1) and (2).

A. COUNSEL’S FAILURE TO INVESTIGATE AND PREPARE PRETRIAL

Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.

Kimmelman v. Morrison,

477 U.S. 365, 384 , 106 S.Ct. 2574 , 91 L.Ed.2d 305 (1986).

The petitioner contends that when counsel fails to investigate his options and make a reasonable choice between them, his strategic decisions cannot be reasonable and cites this Court to

Glenn v. Tate,

71 F.3d 1204 , 1207 n. 1 (6th Cir.1995),

cert. denied,

519 U.S. 910 , 117 S.Ct. 273 , 136 L.Ed.2d 196 (1996). Counsel’s failures cannot be excused as reasoned strategy when he does not present evidence to the jury because he has never taken the time to develop it.

Id.

Petitioner urges that this Court measure Bowling’s counsel’s performance over all, citing both

Strickland v. Washington,

466 U.S. at 688 , 104 S.Ct. 2052 , and

Buchanan v. Kentucky,

483 U.S. 402, 424 , 107 S.Ct. 2906 , 97 L.Ed.2d 336 (1987).

1. Petitioner was denied effective assistance of counsel when trial counsel spent an aggregate of one hour with him pretrial and failed to discuss the case with him.

The petitioner contends that this aspect of trial counsel’s pretrial conduct toward their client failed to conform to the standards of the profession in capital cases and was so ineffective as to deprive him of his Sixth Amendment right to meaningful consultation with counsel. In fact, he describes the situation as a complete breakdown of the counsel and client relationship. In response, the Commonwealth notes the aforequoted various findings the trial court made in chambers (Record No. 60 at 1821-27); argues that the findings are entitled to deference under § 2254(d)(1); and urges that the court’s decision was reasonable.

When the petitioner made this specific challenge to defense counsel’s pre-trial conduct in his RCr 11.42 motion, Kentucky’s Supreme Court wrote that it considered the issue

raised and rejected on direct appeal ... wherein we stated that ‘the trial strategy used by Bowling’s counsel had a better chance of success than any of which the trial judge could think of in light of the strong evidence of guilt presented by the prosecution.’ ... Therefore, Appellant is precluded from relitigating the issue in his RCr 11.42 motion. Brown v. Commonwealth, Ky., 788 S.W.2d 500 (1990)

Bowling II,

981 S.W.2d at 549 (quoting from

Bowling I,

873 S.W.2d at 180 , VIII).

Federal law, as determined by the United States Supreme Court, is clear. In

Strickland ,

the Court set out not only the components of a Sixth Amendment claim but underscored that the purpose of the Sixth Amendment is to guarantee the defendant a fair trial.

Strickland,

466 U.S. at 689 , 104 S.Ct. 2052 . Therefore, the focus of the Sixth Amendment’s guarantee is “the adversarial process, not ... the accused’s relationship with his lawyer....”

United States v. Cronic,

466 U.S. 648 , 657 n. 21, 104 S.Ct. 2039 , 80 L.Ed.2d 657

*860

(1984). In fact, the Court has cautioned that the Sixth Amendment does not guarantee a “meaningful attorney-client relationship,” nor satisfaction with counsel’s performance.

Morris v. Sloppy,

461 U.S. 1, 12-15 , 103 S.Ct. 1610 , 75 L.Ed.2d 610 (1983). A court need go no further than ensuring that a defendant has an “effective advocate.”

Wheat v. United States,

486 U.S. 153, 160 , 108 S.Ct. 1692 , 100 L.Ed.2d 140 (1988).

This claim demonstrates the importance of the trial court’s position as factfinder and the importance of the deference due it by this Court. The trial court was in the best position to have witnessed both the petitioner’s demeanor and his counsel’s performance over the course of several months pretrial and in the week of the penalty phase of the trial; the trial court was, consequently, in the best position to adjudge the credibility of the petitioner making these allegations and the quality of counsel’s performance. That court’s findings, after questioning the petitioner in the record, were challenged on direct appeal and affirmed. They are now entitled to the presumption of correctness which

Strickland

and

Williams

dictate, and the petitioner has not rebutted that presumption.

Even if the Court assumes,

arguendo,

that such limited contact took place, that there was a breakdown in meaningful contact, and that this rendered counsel’s performance deficient, still the petitioner has failed to show that trial counsel’s strategy was unsound or that the alleged restricted contact prejudiced the outcome. He has not identified any witness or clearly exculpatory information which he would have offered had more contact occurred. Further, to date, he has made no showing that a different result would have been obtained had counsel spent more time with him or obtained names of more people to testify. This Court finds the state courts’ findings and conclusions are not unreasonable under the standards of 28 U.S.C. § 2254 (d)(1) and (2).

2. Petitioner was denied effective assistance of counsel by counsel’s failure to investigate and present evidence about alternate suspects, which would have established reasonable doubt.

This claim of the petitioner springs from police documents, which were supplied by the open file discovery pretrial and which reveal that, initially, there were potential alternate -suspects. One person interviewed suggested that others may have had access to the petitioner’s car and keys. Other police notes in the investigation focus on still others who may have had a motive to kill the Earleys, purportedly because Tina Earley had an extramarital affair; the Earleys were involved in drug use; Eddie Earley worked as an informant for the police regarding drug activity; and/ or, according to a telephoned tip, the killings were a drug debt or a “roughing up” which had gone bad. Petitioner contends that counsel failed to pursue any of these avenues, and so they were unable to show the jury persons who may have had a motive to kill the Earleys, and, thus, establish Bowling’s innocence or, at least, reasonable doubt as to his guilt.

Calling these claims speculative, the respondent contends that Bowling’s trial counsel were aware of these rumors and assigned either an attorney or investigator to interview them. He bases this contention on a defense attorney’s intra-office memoranda, attached to Bowling’s RCrll.42 traverse, wherein several witnesses are listed to be interviewed pretrial. TR, Stricken Pleadings, Vol. 2, Number [hereinafter “No.”] 161. Respondent contends that nothing by trial counsel or current counsel has been presented to show these alternate suspect claims were anything more than rumor or in any way

*861

connected to the murders; without probative evidence linking any of the alternative suspects to the murders, counsel’s actions were reasonable; and without such a link any evidence regarding speculative suspects would have been inadmissible at trial.

The Kentucky Supreme Court found that this argument was “based on vague rumors and unsupported claims. Regardless of counsel’s actions in this particular area, we are of the opinion that the mere existence of other potential suspects could do nothing to diminish the impact of the Commonwealth’s overwhelming proof....”

Bowling II,

981 S.W.2d at 550 .

This Court finds no error in the state court’s rejection of this claim. First, there is no indication that counsel failed to pursue the idea of other suspects. To the contrary, the only evidence offered, the attorney memorandum, indicates such investigation was part of their pre-trial preparation. The Court feels free to examine these offerings of the petitioner in the state record, since the Kentucky Supreme Court included the stricken supplemental 11.42 motion in considering the merits of his claims. Even if they did not follow up on every alternative, counsel’s duty to investigate is not an absolute duty to investigate every possibility.

Strickland,

466 U.S. at 690-91 , 104 S.Ct. 2052 . This Court agrees with the Kentucky Supreme Court’s reasonable application of Strickland’s prejudice standard.

3. Petitioner was denied effective assistance of counsel when the prosecution disclosed the existence of an unnamed witness to the car accident which preceded the shootings and trial counsel took no additional steps to locate this witness or use this information.

As a result of open file discovery, defense counsel had a copy of an April 13, 1990 phone message from one police officer to another, stating as follows;

Officer Morrison called in this day to advise her girlfriend had told her that her (the girlfriend) boyfriend was a witness to the incident at Earley’s Cleaners. According to the girlfriend, the incident occurred over a fender bender type accident. Morrison didn’t have the boyfriend’s name with her so I advised her to contact you on Saturday. She agreed to do so.

The petitioner contends that because counsel took no steps to identify this person, the sole eyewitness to the car accident preceding the shootings, he was deprived of evidence critical to rebut the prosecution’s theory that the Earleys’ car had been rammed intentionally and to further support the defense’s request for an extreme emotional disturbance (hereinafter “EED”) instruction. Respondent contends that counsel did all that was needed at argument. Moreover, even if found, the witness would not provide the evidence of circumstances the way Bowling believed them to be, which is the crucial missing evidence in this case. The respondent also argues that the Kentucky Supreme Court’s conclusion that the

Strickland

test was not met is reasonable.

The Kentucky Supreme Court, on direct appeal, noted only that proving the collision beforehand was not helpful to the petitioner’s case in order to justify an EED instruction, because there was no evidence of the effect that the collision had on Bowling.

Bowling I,

873 S.W.2d at 179 , VI. In the later 11.42 proceedings, the same court stated with regard to counsel’s failure to take steps to locate this witness:

[D]efense counsel argued that the automobile accident presented sufficient evidence to support an EED instruction

*862

based upon the unchallenged conclusion that the collision occurred prior to the shootings. It was not the lack of evidence pertaining to the collision, but rather the lack of evidence showing the effect the collision had upon Appellant that precluded the EED instruction.

Bowling II,

981 S.W.2d at 549 .

[28] This Court agrees with the Kentucky Supreme Court’s conclusion that the trial counsel’s not identifying and calling this witness was within the range of permissible legal conduct under

Strickland

( 466 U.S. at 689 , 104 S.Ct. 2052 ), and this omission did not render Bowling’s convictions unreliable. Again, the duty to investigate is not an absolute duty to investigate every possibility.

Id.

at 690-91 , 104 S.Ct. 2052 . Even if there were such a duty and counsel failed woefully in failing to pursue this witness, the petitioner has not pointed to prejudice. As with the preceding claim, the ultimate question is whether counsel’s failure to present this witness at trial rendered the petitioner’s convictions and sentences unreliable. The Kentucky Supreme Court’s decision on this issue was a reasonable application of the law as stated by the United States Supreme Court in

Strickland .

4. Defense counsel was ineffective in failing to locate Norman Pullins, a witness to the shooting, who gave a description of the shooter that was markedly different from petitioner’s appearance.

Because Mr. Pullins’ description of the shooter in his police interview was in some respects different from that of the only other eyewitness to the shootings, David Boyd, the petitioner argues that Pullins’s testimony was exculpatory and could have created a reasonable doubt at trial or a residual doubt at sentencing. Besides complaining that counsel did not take steps to locate Pullins, the petitioner also faults the trial court with contributing to counsel’s ineffectiveness and denying him due process because the court denied a motion for a continuance in order to locate Pullins.

The respondent, however, points to the Kentucky Supreme Court’s rejection of this claim and that court’s conclusion that the petitioner was advantaged because Pullins’ description was put before the jury without risking any in-court identification or unwanted information on direct or cross-examination. According to the respondent, “Bowling got the best of both worlds.”

Kentucky’s highest appellate court found that counsel did take steps, which the court described as “extraordinary efforts” to locate Pullins, including asking for a continuance and obtaining the agreement of the Commonwealth to allow the taped statement to be introduced and played for the jury.

Bowling II,

981 S.W.2d at 550 . In the words of the court, “Thus, Pullins’ description of the gunman was provided to the jury without risking the possibility of an in-court identification or other potentially damaging testimony to the appellant.”

Id.

The trial record reveals that defense counsel submitted a written motion for a continuance with two supporting affidavits setting out the efforts of attorney Baldani and a hired investigator to locate Pullins. TR Vol. 2 at 266-76. At oral argument on the motion, there was a discussion between all counsel and the court regarding the inability of both the Commonwealth and the defense to locate Mr. Pullins. Record No. 50 at 158-69. Defense counsel told of his and two investigators’ multiple efforts, within and outside the state, beginning in July, the month after counsel was retained and five months before trial.

Id.

Agreeing to admit the taped interview was alterna

*863

tive conduct which also did not prejudice the petitioner.

With regard to locating Mr. Pullins, the conclusions of the Kentucky trial and appellate courts, finding no deficient performance on the part of defense counsel, are objectively reasonable, based on the record and on clearly established law.

B. COUNSEL’S FAILURE TO PRESENT A DEFENSE AT TRIAL

1. Petitioner was denied due process of law and effective assistance of counsel when his lead counsel learned that he would be indicted on the first day proof was to be taken.

The petitioner first alleges that he was denied effective counsel when lead counsel William Summers was indicted at the time of his trial. He contends that Summers broke down; upset the other defense counsel; was distracted; and thereafter played a more limited role in the defense than was planned.

The respondent notes that no evidence is offered to support this contention, and Bowling himself did not mention it during the trial, even when given the opportunity in camera to express the reasons for his dissatisfaction with counsel. Also, the record shows that, to the contrary, on the first day of trial, attorney Summers made the opening statement and cross-examined three important witnesses. Moreover, Kentucky’s Supreme Court had videotapes of the proceedings to judge Summers’ demeanor and still found no evidence of ineffective counsel. In the traverse, the petitioner asks that he not be faulted for not raising this issue earlier; his failure to do so only points up the lack of communication he had with trial counsel at the time of trial.

Kentucky’s Supreme Court commented on the lack of evidence in the record and went on to state, “With no evidence that counsel’s indictment had any negative implications on Appellant’s trial, we cannot conclude that Appellant was denied effective counsel in this respect.”

Bowling II,

981 S.W.2d at 550 .

This Court notes that this claim appears for the first time in the petitioner’s original January 26, 1996 motion for relief under RCr 11.42. TR at 622. However, it was not until the petitioner filed a motion (Record No. 79) for this Court to reconsider his request for discovery herein that the petitioner submitted anything but argument to support this allegation and claim. Attachment 5 thereto consists of several newspaper articles about attorney Summers’ 1991 indictment and exoneration. None of these articles refer to the petitioner’s trial in 1990 or any date relevant thereto. The petitioner has not submitted an affidavit or other evidence suggesting that (1) Summers actually received notice of the pending or actual indictment during the first day of petitioner’s trial; and (2) Summers’ alleged notice of the indictment affected his performance.

A claim that an event produced adverse impact on a criminal defendant’s trial is not made out by simply claiming such; it must be an impact that significantly worsens the client’s representation.

See United States v. Mett,

65 F.3d 1531, 1535-36 (9th Cir.1995). Thus, even if Summers were so informed and so upset, the petitioner’s claim of ineffective counsel cannot succeed so long as the petitioner does not demonstrate deficient performance and a harm resulting therefrom. The instant record suggests neither. The instant record fairly supports the conclusion of the Kentucky Supreme Court. Accordingly, this claim must fail.

*864

2. Petitioner was denied effective assistance of counsel by counsel’s failure to elicit proof that, while at least seven shots were fired, the gun recovered could only fire six shots.

The petitioner faults counsel for failing to adequately challenge the evidence about the gun purportedly used in the killings. Because there was some evidence that seven shots were fired and no testimony as to the gunman’s reloading, perhaps the .357 magnum recovered in Powell County was not the murder weapon. The petitioner complains that counsel did not elicit reloading information from witnesses or argue an inconsistency so as to suggest that the gun found on his property was not the murder weapon. The respondent contends that trial counsel did attempt to bring out the discrepancy during the cross-examination of Dr. Hunsaker, who explained that a bullet that had passed through Eddie Ear-ley’s thigh had also entered his abdomén.

Kentucky’s Supreme Court addressed the issue twice. First, on appeal, the issue was framed in conjunction with the trial court’s refusal to give a transferred intent instruction. The court pointed out that there was evidence at trial that one bullet could cause two wounds.

Bowling I,

873 S.W.2d at 179 , VII. When this claim was urged in the RCr 11.42 claim of counsel being ineffective for failing to establish seven shots from a gun which could shoot only six bullets, Kentucky’s highest court stated that Bowling “fails to appreciate” other evidence which was introduced, including expert evidence that one bullet could have caused two wounds.

Bowling II,

981 S.W.2d at 552 . Moreover, Kentucky’s Supreme Court concluded that a “the seven-shot theory was of such minimal value that counsel’s decision not to pursue it was not prejudicial.”

Id.

Again, this Court cannot conclude that the Kentucky court’s conclusion involved an unreasonable application of the

Strickland

performance or prejudice standard.

3. Trial defense counsel were ineffective for failing to request disclosure of exculpatoiy evidence.

The petitioner argues this claim generally and specifically with regard to a photo line-up. As to the photo line-up, he admits that counsel was provided with one page of the line-up results, which had abbreviations such as “no” or “DNS” beside those individuals who could not identify Bowling. The petitioner claims to have discovered a second page explaining the abbreviations in a 1996 Open Records request during the 11.42 proceedings. TR Vol. 5 at 671. He faults trial counsel for failing to pursue what the abbreviations on the first page meant. If counsel had done so, the second page would have been useful for the exculpatory identifications on it. The respondent argues that the claim is defaulted, having been raised only in the stricken 11.42 supplemental motion; even if not defaulted, it is refuted by the record.

This matter is not defaulted because it was addressed by the Kentucky Supreme Court despite the striking of the supplemental documents. The Kentucky court found that with regard to requests for exculpatory materials, the record reveals that there had clearly been an open discovery file and that, additionally, the defense had made an oral motion for exculpatory evidence anyway.

See Bowling II,

981 S.W.2d at 551-552 . With regard to counsel’s failing to request exculpatory evidence relating to the photo line-up, the court repeated, “such claim is refuted by the record.”

Id.

at 552 .

The state recbrd does show that as early as the arraignment, the Commonwealth

*865

announced its intention to provide “open file discovery” to the retained defense team (Record No. 45) and in an Agreed Order entered on July 18, 1990, the prosecution promised that, “[t]he Commonwealth will give copies of all tapes and documents in its file to the Defendant,” a promise that would be “a continuing obligation.” TR Vol. 1 at 59. Nonetheless, in an abundance of care, at the last pretrial conference one of defense counsel made an oral motion for exculpatory evidence. Record No. 49 at 121.

As to the particular claim that counsel failed to pursue abbreviations on the photo-pack so as to find more persons who could not identify Bowling, the petitioner has not shown how the Kentucky court’s ruling is unreasonable. He has not explained how any other person’s failure to identify the petitioner would have impacted the trial, rendered the result unreliable. Defense counsel did cross-examine the only testifying witness to the shootings. His inability to identify Bowling was explored. Others’ failure to identify him was of questionable value.

This Court agrees with the Kentucky court’s conclusions, which are supported by the record and not unreasonably determined in light of the evidence or the law of

Strickland .

4. Trial defense counsel were ineffective in not cross-examining witness David Boyd regarding whether his view of the scene limited his ability to observe the gunman.

The petitioner claims that because Boyd was seated in his vehicle which was facing away from the scene; was turning and looking over his shoulder to make his observations; and could not make a positive identification that the petitioner was the gunman he saw that day, it was incumbent upon counsel to cross-examine him extensively over his limited view of the scene, and counsel’s failure to do so deprived him of effective assistance of counsel. The petitioner cites the Court to

Jemison v. Foltz,

672 F.Supp. 1002 (E.D.Mich.1987).

The respondent distinguishes

Jemison v. Foltz

and also argues that this claim is defaulted because it was not raised on appeal of the 11.42 proceedings. However, even if the claim is not considered defaulted, the respondent contends this claim is meritless because (1) Boyd actually was cross-examined regarding in consistencies; (2) to do more would be argumentative; and (3) the extent of cross-examination is a matter of trial strategy. In reply, the petitioner counters that there was no default; he specifically claimed in the appeal of the 11.42 denial that the Kentucky Supreme Court’s 50-page brief limitation prevented his briefing this issue.

The record reveals that in his original 11.42 motion in the trial court, the petitioner set forth his diverse claims of error divided into “paragraphs” (some paragraphs having several sub-paragraphs within) numbered 1-35. TR Vol. 5 at 611-62. Paragraph 21 conceded that defense counsel was able to elicit from Boyd that he could not identify the defendant as the man he saw firing the gun, but goes on to complain that “counsel did not notice that at the crime scene a hedge row of approximately five feet in height separated the witness from the scene, as well as the one hundred or so feet separating the two, both of which may have further aided in the cross-examination of this witness.”

Id.

at 626. In his brief appealing the denial of 11.42 relief, counsel wrote only:

Space limitations preclude addressing all issues raised in T.C.’s 11.42 motion. Had sufficient space been allowed, the issues captured by paragraphs 14, 17, 20, 21, 27, 30, 31, 32, and 33 would have been presented as well.

*866

State Record, Bowling’s brief on appeal of 11.42 motion at 49.

The Kentucky Supreme Court did not specifically address this claim in its opinion, which upheld the trial court’s 11.42 decision and found no Sixth Amendment violation. This Court finds that the issue of whether the petitioner fairly presented his claim to the state court is a close question. For this reason and because this is a death penalty case, the Court will not consider this claim procedurally defaulted. However, on the merits, the petitioner’s claim must fail. On direct examination of Boyd, the prosecution had used an aerial photograph of the site, which included the intersection and the Earley Bird Cleaners, and Boyd was able to point at his location in relation to the shooter. The prosecution, in fact, asked the witness how far he was from the shooter when he put the gun in his pocket, to which Boyd responded, “I’d say about a hundred feet.” Record No. 57 at 1277. When cross-examined by attorney Summers, Boyd admitted (1) which way he was facing and focusing; (2) the fact that he could not identify the shooter; and (3) the fact that there were discrepancies between his current memory and his description of the shooter immediately after the shootings.

Id.

at 1270-1285. Since this witness’s limited ability to see the scene was demonstrated, admitted and capitalized on, this Court finds no error in counsel’s terminating cross-examination without reference to a hedge.

The Court perceives no reasonable probability that counsel’s continued cross-examination of this witness would have produced a different result. The 30-minute, virtual non-adversarial trial of

Jamison v. Foltz

is clearly distinguishable from the facts reflected in the record of the instant case. Counsel’s performance herein has not been shown to be deficient under

Strickland .

The Kentucky Supreme Court’s conclusion that the instant petitioner received effective assistance of counsel is not contrary to

Strickland .

Therefore, Bowling is entitled to no relief on this ground.

5. Trial defense counsel were ineffective in failing to cross-examine witness Clay Brackett to determine if he was aware that he could be charged with firearms violation and whether fear of prosecution was a factor in his willingness to testily against petitioner.

This claim was originally raised in the supplemental 11.42 motion, wherein the petitioner charged that the Commonwealth had made but then not revealed a deal with Brackett. The petitioner argues that a fundamental part of a defendant’s right of confrontation is cross-examination to reveal possible biases or motives for his testimony. He cites abundant Kentucky case law for the propositions that a jury must be in possession of facts calculated to exert an influence upon a witness; that the motive of a witness to testify is never immaterial; and that cross-examination can be thorough and considerable latitude permitted.

According to the respondent, this claim is defaulted in several ways. First, it was raised only in the supplemental 11.42 motion, which was struck. Also, his original motion presented this issue not as herein, an ineffective assistance of counsel claim, but as a

Brady

claim that the Commonwealth failed to divulge a deal with Mr. Brackett. On appeal of the denial of his RCr 11.42 motions, he again argued the undisclosed deal as a part of a

Brady

claim and not as a claim of ineffective assistance of counsel. Thus, procedural default bars this court’s review under

O'Sullivan v.

*867

Boerckel,

526 U.S. 838 , 119 S.Ct. 1728 , 144 L.Ed.2d 1 (1999).

According to the respondent, even were this issue not defaulted by not being used to make a claim of ineffective assistance of counsel, there was no good faith basis to believe that such a deal was struck. Therefore, under the rules of professional conduct and cited case law, it ’would have been improper to cross-examine Mr. Brackett about a deal, as the petitioner suggests. Again, the respondent charges that the petitioner has merely speculated and failed to establish facts sufficient to support discovery about the matter or alert the court to any merits in the claim.

Kentucky’s highest court stated with regard to this matter in Bowling’s 11.42 motion,

Appellant finally claims that the Commonwealth made a clandestine deal with a witness, Clay Brackett, in exchange for his testimony. Appellant has no basis for such an allegation, and we have no reason to speculate that such an arrangement existed.

Bowling II,

981 S.W.2d at 550 . Before both the Kentucky courts and this Court, the petitioner has submitted no support for contending that such a deal existed, or that Brackett lied, or that cross examining him about a deal would result in the probability of a different outcome. The Kentucky Supreme Court’s decision was and is not an unreasonable determination of the facts in light of the evidence.

6. Trial defense counsel were ineffective in failing to cross-examine police officers regarding their offer of a “deal” to petitioner if he would reveal who actually killed the Earleys.

The petitioner alleges that while he was in custody prior to indictment, representatives of the Commonwealth offered to make a deal with him if he would reveal the identity of the Earleys’ killer. The petitioner argues that this was a clear indication that law enforcement officials believed someone else had committed the crime, and yet defense counsel took no steps to identify the officers so as to put before the jury evidence that the police themselves doubted that the movant had killed the Earleys.

The respondent argues that this claim, too, is procedurally defaulted because it was not raised as an ineffective assistance of counsel claim in the post-conviction proceedings. However, even if this claim were not defaulted, the respondent argues that this is another unsupported allegation and that the petitioner cites to no authority which would permit the opinions of such officers, if they existed, to be admissible.

The petitioner counters that there is no procedural default. As he has argued about other claims, the petitioner contends that this claim was not raised earlier because his post-conviction attorney was ineffective and because the appellate court imposed briefing page limitations on him. Additionally, the petitioner contends that there is a factual basis in the instant record, his signature on the instant petition at page (7), and he has been deprived of a hearing to present the facts of such a deal.

This claim is procedurally defaulted. At this point, it is a mere allegation which has not been presented to the Kentucky Supreme Court. It was not even an issue which appellate counsel stated he would have briefed if he had not had the 50-page limit. Nothing in the record supports this claim. The petitioner’s few references to ineffective post-conviction counsel and page' limitations on briefing in the Kentucky Supreme Court are both inaccurate and insufficient for this Court to consider the matter properly presented to

*868

that court. There being no showing of cause or prejudice to excuse his total default, habeas review of this claim is barred.

7. Petitioner was denied effective assistance of counsel when trial counsel failed to investigate and present extreme emotional disturbance as a defense or as mitigation.

8. Counsel were ineffective in failing to retain and prepare a mental health expert to competently examine petitioner with regard to petitioner’s mental state at the time of the offense.

Claims regarding the petitioner’s mental health have been argued extensively in both the state proceedings and herein. The petitioner here points to events which were purportedly indicative of his deteriorating mental state and then alleges that, knowing these facts, defense counsel were ineffective in their presentation of the petitioner’s mental state, both in defense to or in mitigation of the crime with which he was charged. Petitioner’s counsel purportedly did not elicit from family witnesses enough details of his deteriorating condition and present expert testimony as to the meaning of these details, so as to support an EED instruction. Although defense counsel retained an expert, Dr. Donald G. Beal, petitioner claims that they did not guide him as to what they wanted him to evaluate,

e.g.,

sanity, extreme emotional disturbance, etc., and they also did not call him, the only reason shown in the record being their reference, on the last day of the guilt phase of trial, to his not returning a telephone call one of them had made to him earlier. Therefore, with no reliable expert testimony, counsel were forced to rely on cross examining lay witnesses in the guilt phase and calling law witnesses in the penalty phase. Failure of counsel to present a competent mental health defense has been held to be ineffective assistance, the petitioner citing to

Glenn v. Tate,

71 F.3d 1204 (6th Cir.1995). Additionally, the petitioner argues that once the defense of EED had failed, the defense should have introduced Dr. Beal’s report at the penalty stage.

The respondent argues (1) that the petitioner would probably have not agreed to an EED defense, because he was and is maintaining his innocence, and (2) that Kentucky’s highest court also agreed the defendant would not have abandoned his innocence stance.

See Bowling II,

981 S.W.2d at 549 . Additionally, the respondent argues that counsel’s performance with regard to their own expert was reasonable. Counsel hired an expert months before trial; arranged for him to spend nine (9) hours with their client; and obtained a detailed report on him. Respondent describes this as a “far cry” from the situation in

Glenn v. Tate.

According to the respondent, counsel did a “masterful” job at presenting mitigation evidence without opening the door to the entirety of the expert’s report, which included negative information.

It is true that the Kentucky Supreme Court noted that the petitioner has been maintaining innocence while also complaining of his counsel’s failure to investigate using an EED defense and to obtain expert evidence to support it as a defense. The court agreed with the Commonwealth that Bowling’s purported

“wealth of evidence’ regarding EED was before the Court at the end of the penalty phase and was not even sufficient to warrant an instruction on EED as a mitigating factor. Moreover, we are not inclined to embrace Appellant’s theory that he would have abandoned his claim of innocence.

Bowling II,

981 S.W.2d at 549 . Additionally, the court concluded that the

*869

Commonwealth’s expert profile aided the petitioner more than his own; that controverting the Commonwealth’s profile would have damaged his case; and that counsel are not required to search for an expert until they find one in support of their theory.

Id.

at 550 .

The state record contains, as attachments to the petitioner’s stricken traverse, documents which refute the petitioner’s contentions with regard to the defense’s use of their mental health expert. TR Stricken Pleadings, Vol. 2, attachments to No. 161. As it did

supra

with regard to an attorney’s pre-trial memorandum, this Court examines these stricken portions of the state record, since they were filed by the petitioner and considered by the Kentucky Supreme Court on appeal of his unsuccessful RCr 11.42 motion. According to these letters and memoranda, the defense expert, psychologist Dr. Beal, was hired in August; counsel supplied several packets of information about Bowling via mail thereafter; and counsel Baldani and Dr. Beal engaged in multiple telephone conversations. In Dr. Beal’s resulting formal psychological evaluation, written after nine hours with the petitioner, he addressed a mental disease or defect defense, writing that there was no evidence that his mental disorders impaired his behavior “such that he lacked substantial capacity to appreciate the criminality of his conduct, or that he was unable to conform his conduct to the requirements of the law. In my opinion Mr. Bowling was

legally sane

at the time of the offenses.... ” In another exhibit, a November 12 note to Bowling’s file, Baldani described a telephone conversation he had that day with Beal, the attorney writing as follows:

Dr. Beal discussed T.C. Bowling's consistent history of becoming enraged with women, and observed that the Comp care notes from ten years earlier were consistent with his behavior prior to the murders. He said that T.C. Bowling was in a frame of enraged anger prior to the murders, and we discussed that this did not appear to be a heat of passion kind of thing, but rather something that had been developing several days earlier.

Id.

On its face, this psychological profile was more damning than helpful for defense use. Thus, according to documents in the state record, offered by the petitioner himself in his 11.42 proceedings, defense counsel’s conduct cannot be said to be deficient with regard to psychological evidence, but in keeping with legitimate trial strategy. Nor does

Glenn v. Tate

assist the instant petitioner. The attorneys therein “failed to make any significant preparations” for the sentencing phase. When that phase was upon them, they presented witnesses who either did not know the criminal defendant or knew him only when he was a small child; they did not call any member of his family; and they failed to present any neurological information which reflected the defendant’s substantial organic brain problems.

The Kentucky Supreme Court’s conclusion in

Bowling II

that

Strickland

was not violated is supported by the instant record and is objectively reasonable.

9. Trial defense counsel were ineffective for failing to retain an accident reconstruction expert who could have determined whether the Earleys’ car was intentionally rammed or damaged as a result of an accidental collision.

The petitioner claims that his trial counsel’s failure to hire or request funds for an accident reconstructionist denied him his Fifth, Sixth, Eighth, and Fourteenth Amendment rights. With such a report, the defense could have countered the prosecution’s argument that the collision between the victims’ and Bowling’s cars was an intentional act. Additionally, with such

*870

testimony in the record, the defense would have had added support for their request for an EED instruction based on the accident’s being a triggering event.

The respondent maintains that this claim is procedurally defaulted because it was not squarely presented in the petitioner’s RCr 11.42 appeal, merely mentioned with regard to counsel’s failure to pursue the unnamed witness to the “fender bender.” Respondent also characterizes this claim as speculative, the petitioner submitting nothing to indicate what an expert could determine at all; and conclusory allegations are insufficient to show ineffective assistance of counsel. In reply, the petitioner argues that this claim was not defaulted because it was argued to the Kentucky Supreme Court, although the Supreme Court chose not to address it in them opinion. The petitioner maintains that it is not speculative and, accordingly, he earlier moved this Court for permission to access his car and hire an accident reconstructionist.

The instant petitioner’s pleadings in the state court record and appellate opinions after direct appeal and Rule 11.42 proceedings reveal absolutely no mention of an accident reconstructionist. Therefore, clearly, the claim that counsel was ineffective for failing to hire such an expert was not presented to the Kentucky courts. Accordingly, it is defaulted and, with no showing of cause or actual innocence to excuse the default, it is not properly before this Court on habeas review.

10. Petitioner was denied effective assistance of counsel when trial counsel failed to object to the Commonwealth’s conjecture that petitioner stalked and lay in wait of the victims and therefore acted with premeditation.

The petitioner complains of his counsel’s failure to object to the speculative scenario that the petitioner had scouted the area over the preceding weekend; had lain in wait for the victims; and had intentionally rammed their car in a premeditated plan. He contends there was no evidence to support these conjectures by the prosecution. The petitioner’s mother stated that T.C. had gone to K-Mart only because she had requested that he take her there on Saturday; he was at- a possible vantage point to the cleaners only briefly; and the mere finding of a thermos in his auto cannot support a premeditated, lying-in-wait conjecture. The petitioner argues that while a prosecutor may urge a jury to draw inferences supported by facts, he may not argue inferences so tenuously connected to facts as to be fanciful conjecture; therefore, the failure of trial counsel to object to the Commonwealth’s persistent conjecture denied the petitioner effective assistance of counsel.

The respondent argues that the prosecutor’s statements were consistent with eyewitness testimony, expert testimony, photographs, and other evidence presented at trial. Therefore, there was no prosecutorial misconduct and, in fact, state law supported this argument based upon the holding in

McClellan v. Commonwealth,

715 S.W.2d 464 (1986). Additionally, the respondent notes that this argument of the petitioner’s was rejected by Kentucky’s highest court, both when it was presented as a claim of prosecutorial misconduct on direct appeal, and again when it was raised as part of the ineffective assistance of counsel claim in the post-conviction proceedings. Since the arguments were found to be proper, trial counsel cannot be ineffective for failing to object, the respondent citing

West v. Seabold,

73 F.3d 81 (6th Cir.),

cert. denied,

518 U.S. 1027 , 116 S.Ct.

2569, 135

L.Ed.2d 1086

(1996).

In the petitioner’s direct appeal, the Kentucky court described the petitioner’s

*871

claim as “contending] that the prosecution used conjecture and surmise to attribute the worst possible motives and inferences without any evidentiary basis in order to obtain a conviction.”

Bowling

I, 873 S.W.2d at 178 , V. The court ruled as follows:

There is no error because the closing arguments by the prosecution were based on the evidence and the reasonable inferences from the evidence. Cf.

Sanders v. Commonwealth,

801 S.W.2d 665 (1990). They were within the reasonable latitude permitted during closing argument. Cf.

Lynem v. Commonwealth,

565 S.W.2d 141 (1978).

Id.

at 178-79 . Later, in reviewing the 11.42 proceedings, the Kentucky court was faced with the direct allegation that counsel was ineffective for failing to object to the closing statement of the prosecution. The court quoted from the above portion of its opinion on appeal and found, “No further review is appropriate.”

Bowling II,

981 S.W.2d at 550 .

As is evident from the foregoing, this claim has been considered and rejected by the Kentucky Supreme Court first as one of prosecutorial misconduct on direct appeal and later as an ineffective assistance of counsel claim, in the 11.42 appeal. Both times relief was denied, the court suggesting the basis for the second decision was that it had already ruled that the conduct was not misconduct. In the remarkably similar

West v. Seabold,

73 F.3d 81 (6th Cir.),

cert. denied,

518 U.S. 1027 , 116 S.Ct. 2569 , 135 L.Ed.2d 1086 (1996), even when the Kentucky court found that the prosecutor’s conduct was egregious misconduct, the state court’s conclusion that counsel’s failure to act, to move for a mistrial, was a matter of strategy, was held to be a finding entitled to the presumption of correctness by the federal habeas court.

Id.

at 85. Thus, even before the advent of the AEDPA’s standard of deference, the federal appellate court could not find that this strategy constituted ineffective assistance. Stating that it was not in any “position, on this record, to second-guess defense counsel’s conduct as not being within the range of reasonable professional assistance,” the Sixth Circuit reversed the district court’s grant of the writ.

Id.

On the instant record and considering the Kentucky Supreme Court’s initial finding of no prosecutorial misconduct, this Court finds that the state court’s resolution reflects a reasonable application of federal law, including the standards of

Strickland .

This Court agrees that because Bowling has not demonstrated that he was deprived of a fair trial, he is not entitled to relief.

11. Petitioner was denied effective assistance of counsel when trial counsel failed to introduce evidence that the Earley Bird Cleaners was not clearly visible from the K-Mart parking lot, which controverted the Commonwealth’s argument that the Ear-leys’ deaths were premeditated in that petitioner staked out the Earley Bird Cleaners while parked at K-Mart.

The petitioner claims that he could not have staked out the Earley Bird Cleaners from behind a slatted fence across the street at the edge of the K-Mart parking lot, but his counsel failed to examine the site; discover this fact; and introduce evidence thereof in order to controvert the prosecution’s premeditation. According to the petitioner, a simple investigation of the site and presentation of this information would have rebutted the theory that the murders were premeditated and thus would have avoided his receiving the death penalty.

*872

The respondent argues that this claim is procedurally defaulted because it was not argued on appeal of the denial of his RCr 11.42 motion. Further, the claim has no merit, as photography Exhibits 37 and 38 show the visibility of the cleaners from behind missing slat in the K-Mart parking lot.

This claim is clearly defaulted, because it was never presented to the state courts. The petitioner’s providing no exception to the application of the procedural default doctrine, federal review of this claim is barred.

C. COUNSEL’S FAILURE TO CHALLENGE APPROPRIATENESS OF DEATH PENALTY

1. Trial counsel were ineffective by failing to investigate and introduce mitigating evidence at the penalty phase.

The petitioner claims that counsel “overlooked” significant evidence which could have been presented in mitigation, including his low I.Q., the fact that he had a growth removed from his head at age seven, several head injuries, a family history of mental illness and/or alcoholism, and his own history of alcohol abuse. The petitioner also faults the defendants with their failure to prepare their expert, Dr. Beal, to testify about such contributing factors; to present Bowling’s documented tendency to react violently to minor incidents at this stage; and to draw out from those who did testify the fact that Bowling had had a growth removed from his head at an early age. Additionally, there were other members of the petitioner’s work, family and social life who could have shed light on his symptoms of emotional disturbance or refuted the prosecution’s theory that the petitioner was merely mean and manipulative. The petitioner relies on numerous legal citations and contends that cases “abound which hold that counsel’s failure to investigate and present evidence is unquestionably ineffective under the Sixth Amendment.” Petition [Record No. 17] at 60.

The respondent contends that these are not the same arguments Bowling presented to the Kentucky Supreme Court in his RCr 11.42 appeal and, thus, they are procedurally defaulted. There is no evidence in the state court record to support the above allegations about the petitioner’s background or family history of mental illnesses or about his father. The petitioner did not testify at trial, and he has failed otherwise to present any facts in support of his claims have been properly presented to the state court for review. Moreover, the presentation of such evidence would have been contrary to Bowling’s wishes, as he continued to maintain his innocence. Additionally, the state record reveals that counsel for the petitioner moved the court for permission to obtain a neurological examination of Bowling. The respondent contends it is reasonable to conclude that had the test produced any evidence beneficial to their client, it would have been presented. He asserts that counsel did present testimony about the petitioner’s background to the jury, and the fact that they did not introduce certain additional evidence does not demonstrate ineffective assistance of counsel. Also, the Kentucky Supreme Court rejected this ineffectiveness claim in

Bowling II.

Kentucky’s Supreme Court dealt with the claim that counsel was ineffective for not investigating potential mitigating evidence as follows:

This argument is clearly refuted by the record. In the penalty phase, counsel introduced extensive evidence pertaining to the appellant’s family history of mental illness, his childhood, his marital his

*873

tory, and his deteriorating mental condition in the period leading up to the murders. Counsel presented strong evidence upon which the jury could have reduced appellant’s sentence, had it seen fit to do so. The jury simply weighed the evidence and chose not to reduce the sentence.

Bowling II,

981 S.W.2d at 550 .

According to the trial record, defense counsel presented the testimony of six witnesses, three of whom were family members who presented their impressions of Bowling’s family, past history, and recent behaviors and demeanors. Although Bowling now faults counsel for omitting additional information, such as a head injury and information on his father’s drinking, he has failed to establish the significance of the additional mitigating evidence which he now asserts that counsel should have presented. This Court finds that the Kentucky Supreme Court’s above-quoted decision is supported by the record, and the petitioner does not meet the requirements for habeas relief on this claim under 28 U.S.C. § 2254 (d)(1) or (2).

2. Trial counsel were ineffective by failing to controvert a psychological profile of petitioner which was submitted by the prosecution prior to sentencing.

Trial counsel agreed with the Commonwealth’s proposal to submit the court-ordered psychological profile of Dr. Harwell Smith to the trial judge prior to sentencing. The petitioner claims that, although he gave consent, it was not an informed consent; further, he complains that counsel agreed to that report with nothing prepared to refute Dr. Smith’s claims therein, e.g., studies, added information about organic brain damage, or their own experts’ reports. The petitioner claims that this failure to fully investigate, explain or refute Dr. Smith’s report is a violation of his rights as guaranteed by the First, Sixth, Eighth, and Fourteenth Amendments to the Constitution.

The respondent contends that the petitioner has not shown that counsel’s performance was deficient or that he was prejudiced by Dr. Smith’s report being submitted to the trial court. Its submission got the evidence of the various diagnoses before the judge without any likelihood of cross-examination which could be prejudicial. Therefore, counsel’s performance was neither deficient nor prejudicial.

As this Court has previously noted,

supra,

Kentucky’s Supreme Court found Dr. Smith’s report helpful to the petitioner, as follows:

In all actuality, however, it was this profile which aided Appellant in his case more than his own psychologist’s profile. To controvert it would have damaged his case. Nonetheless, an unfavorable report does not require counsel to search until an expert supporting the defense theory can be found.

Bowling II,

981 S.W.2d at 550 .

As to the decision to use Dr. Smith’s report and not use that of Dr. Beal, described

supra,

this Court finds there is evidence to support the state courts’ conclusion that the defense counsel’s decisions were sound strategy, not deficient performance. And the Kentucky courts’ rejection of this claim about counsel is not contrary to or an unreasonable application of the dictates of

Strickland .

3. Trial counsel were ineffective by failing to object to the prosecution’s unfounded cross-examination of petitioner’s witnesses at the penalty phase.

The prosecution cross-examined two key mitigation witnesses, Bowling’s mother

*874

and sister, on their view of whether the petitioner’s mental problems were feigned and his bizarre actions used to manipulate his family. The petitioner contends that there was no evidence to provide a factual basis for such questioning; such improper cross-examination, urging unfounded inferences, constitutes prejudicial error in a capital case (citing to

McClellan v. Commonwealth,

Ky., 715 S.W.2d at 464 , and

Stumbo v. Seabold,

704 F.2d 910 (6th Cir.1983)); and the injection of a false issue through cross-examination is highly inflammatory and constitutes reversible error (citing

Coates v. Commonwealth,

Ky., 469 S.W.2d 346 (1971)). Trial counsel’s failure to object to the line of questioning and closing argument constitutes ineffective assistance of counsel, the petitioner citing

Crotts v. Smith,

73 F.3d 861 (9th Cir.1996).

The respondent argues that this claim was rejected when presented as one of prosecutorial misconduct in

Bowling I;

the Kentucky high court refused to consider the claim again when it was presented in the form of an ineffective assistance of counsel claim in

Bowling II;

and the claim should be considered procedurally defaulted by this Court because it was raised only in the stricken supplemental RCr 11.42 motion.

Without specifically referring to the Commonwealth’s cross-examination of the family members, Kentucky’s highest court found the petitioner’s “numerous examples of alleged prosecutorial conduct ... [have] no merit.”

Bowling I,

873 S.W.2d at 178-79 , II. On appeal of his 11.42 motion, where petitioner did raise this issue as part of his claim of ineffective trial counsel for failing to object to this line of questioning, the court stated, “This was raised and disposed of on the direct appeal and cannot be relitigated herein.”

Bowling II,

981 S.W.2d at 552 .

It is not inconsistent for the Kentucky Supreme Court to find no prosecutorial misconduct on the direct appeal and then to use this to reject an ineffective assistance of counsel claim because there was nothing to object to. Therefore, how can counsel’s performance be deficient if nothing was objectionable? For the same reason that the instant petitioner’s complaint,

supra,

that counsel should have objected to the Commonwealth’s conjecture, failed, this claim must also fail. Since the Kentucky court found no prosecutorial error sufficient to meet the standard for the petitioner’s constitutional due process rights by denying him a fair trial

(see Donnelly v. DeChristoforo,

416 U.S. 637, 643 , 94 S.Ct. 1868 , 40 L.Ed.2d 431 (1974)), then counsel’s failure to object thereto was not error so serious as to deprive the defendant of a fair trial (Strickland, 466 U.S. at 687 , 104 S.Ct. 2052 ).

See also West v. Seabold,

73 F.3d at 85. This Court finds that the Kentucky Supreme Court’s decision is not contrary to or an unreasonable application of clearly established federal law.

4. The application of Kentucky’s death penalty statute to petitioner — a defendant whose only alleged aggravating factor was that his acts resulted in multiple deaths — was arbitrary and capricious in violation of petitioner’s rights to due process and equal protection and constituted cruel and unusual punishment in violation of the Eighth Amendment; moreover, trial defense counsel were ineffective for failing to move to exclude the death penalty on these grounds.

The petitioner has argued that he is the first and only man sentenced to death in Kentucky on the basis of the single aggra

*875

vating factor that the killings were intentional and resulted in multiple deaths. He faults his counsel for not presenting this argument and/or moving to exclude the death penalty on the grounds that it would be unheard of and disproportionate. The petitioner also again states that he raised this issue in his 11.42, but could not address it on appeal of that motion because of the 50-page limit for appellate briefs under Kentucky rules.

Again, the respondent argues that because it was not presented to the Kentucky Supreme Court on appeal of the RCr 11.42 motion, this claim is defaulted, the respondent again relying on

O’Sullivan v. Boerckel,

526 U.S. 838 , 119 S.Ct. 1728 , 144 L.Ed.2d 1 (1999). The respondent also argues that if the claim is considered on the merits, nonetheless, it should fail. Factually, in 1990, Bowling became the first of three individuals in Kentucky who are now under a sentence of death based upon the single aggravating factor of multiple intentional deaths, there being two victims. Moreover, the respondent contends that under Bowling’s theory that his penalty is disproportionate because no one else received death on a finding of this one aggravating factor, no single statutory aggravator could ever support a death penalty the first time it was used. Finally, the respondent relies upon well-known law, supporting the death penalty upon the finding of multiple murders as the sole aggravating factor, including the Supreme Court’s

Lowenfield v. Phelps,

484 U.S. at 241-46, 108 S.Ct. 546 .

The record reveals that appellate counsel wrote in paragraph 30 that Bowling’s counsel was “constitutionally inadequate for not aggressively attacking the availability of the death penalty in this case in light of the Supreme Court’s holding in

Enmund [v. Florida,

458 U.S. 782, 794 , 102 S.Ct. 3368 , 73 L.Ed.2d 1140 (1982) ].” Counsel went on to designate paragraph 30 as one he would not brief because of the 50-page limitation. State record, Bowling’s Brief on Appeal of 11.42 Motion at 23, 49. To the extent that this claim is not procedurally defaulted, it is meritless because the defense team vigorously sought to exclude the death penalty. Counsel presented “Motion to Exclude the Death Penalty Because Electrocution is Cruel and Unusual Punishment” (TR Vol. 1 at 103); a “Motion to Exclude the Death Penalty Based on Arbitrary and Discriminatory Application of the Death Penalty in Kentucky and Motion for Funds to Complete a Statistical Study and for an Evidentiary Hearing”

(Id.

at 108); a “Motion/Memorandum to Allow the Introduction of Evidence Concerning the Nature and Effect of the Death Penalty at the Presentence Hearing”

(Id.

at 87); and a “Motion to Exclude Death Penalty Due to Insufficient Statutory Guidance for Imposition of Death Penalty”

(Id.

at 94). This claim, accordingly, does not warrant habeas relief.

5. Trial defense counsel were ineffective for failing to attack petitioner’s death sentence on the grounds that the race of the victims played an impermissible role in both the Commonwealth’s decision to seek the death penalty and in the jury’s sentencing decision where the sole aggravating factor was that the acts of killing resulted in multiple deaths.

It is the petitioner’s contention that because the Earleys were white, the state rushed to judgment in the arrest, prosecution, and decision to seek the death penalty. The petitioner submits that if the victims in this case had been two African Americans, he would not have been sentenced to death, and yet his attorneys

*876

failed to argue that the seeking of death in his case was a violation of the petitioner’s rights to due process and equal protection. Therefore, they also rendered ineffective assistance as to this matter. As to the state court record on this claim, the petitioner contends that this was one of the issues his appellate counsel identified he could not address because of the appeal brief page limitation.

The respondent argues default, based upon the petitioner’s failure to raise this with the Supreme Court of Kentucky in his RCr 11.42 appeal. Additionally, the respondent contends that this claim is refuted in the record. Counsel moved to exclude the death penalty; for funds to complete a statistical study; and for a hearing. He argued then that pursuing his death penalty was discriminatory based on the race of the victims and also the sex of one of the victims. TR at 108.

The record reveals that trial counsel did, indeed, address the issue of race as a determiner in a pretrial motion and new counsel addressed it in the post-conviction proceedings in paragraph 31 of his 11.42 motion to the trial court. Again, on appeal, paragraph 31 was on the list of issues about which Bowling’s counsel stated he “would have presented” if he had not had the 50-page brief limitation. State Record, Bowling’s Brief on Appeal of 11.42 Motion at 49. Appellate counsel chose to brief other issues to the Supreme Court of Kentucky.

Thus, to the extent the petitioner defaulted his race-based claim, he has tried to establish cause therefor in the Kentucky Supreme Court’s 50-page limitation on briefs; he does not even attempt to establish prejudice. Nor has he demonstrated that failure to review this claim will result in a fundamental miscarriage of justice.

See Smallwood v. Gibson,

191 F.3d 1257, 1269 (10th Cir.),

cert. denied,

- U.S. -, 121 S.Ct. 88 , 148 L.Ed.2d 49 (2000). Moreover, even if viewed as not having been defaulted because the claim was mentioned, though not briefed, on the merits, this argument would fail for the same reasons it has failed in other cases by other white people.

See, e.g., McQueen v. Scroggy,

99 F.3d 1302, 1333 (6th Cir.1996).

Conclusion Regarding Trial Counsel

Each of the petitioner’s claims of ineffective assistance of trial counsel is without merit. The state record, including the pretrial proceedings, the trial transcripts, and the judge’s post-conviction report, supports the state courts’ finding that trial counsel’s performance was not deficient. Even were this Court to disagree with the Kentucky court and find a specific instance • of counsel’s representation to be deficient, “it cannot be said that [Bowling’s] convictions or death sentences resulted from a breakdown in the adversary process that renders the result unreliable.”

Strickland,

466 U.S. at 687 , 104 S.Ct. 2052 . This Court finds no conflict between federal law as stated by the United States Supreme Court in

Strickland

and its reasonable application by the Kentucky Supreme Court in Bowling’s case. Therefore, Bowling cannot prevail on this claim. Finding that the Kentucky courts’ decisions about counsel are not unreasonably determined or contrary to

Strickland ,

this Court may not grant habeas relief based on ineffective assistance of trial counsel.

D. COUNSEL ON DIRECT APPEAL FAILED TO RAISE A MERITORIOUS ISSUE

Counsel on petitioner’s direct appeal to the Kentucky Supreme Court were ineffective by failing to raise a Fourth Amendment claim related to the search and recovery of physical evidence.

The petitioner claims that he wanted to pursue a Fourth Amendment claim based

*877

upon the seizure of his vehicle and other property from the Powell County property without a warrant; and that he wished this issue to be the backbone of his defense and his appeal. He contends that appellate counsel, however, declined to brief this issue because it conflicted with the defense of extreme emotional disturbance. Counsel’s failure to pursue the Fourth Amendment claim on appeal thus denied Bowling effective assistance of appellate counsel. Pointing to the holdings of the Supreme Court in

Jones v. Barnes,

463 U.S. 745, 746 , 103 S.Ct. 3308 , 77 L.E.d.2d 987 (1983), and

Evitts v. Lucey,

469 U.S. 387 , 105 S.Ct. 830 , 83 L.Ed.2d 821 (1985), the petitioner urges this Court to apply the two-prong test of

Strickland

and determine that the petitioner had ineffective assistance of counsel on appeal.

The respondent argues that appellate counsel is not required to raise every conceivable constitutional issue, even in a death penalty case, citing

Murray v. Carrier,

477 U.S. 478, 486 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986). Moreover, he asserts that

Stone v. Powell,

428 U.S. 465, 481-82 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976), forecloses Fourth Amendment claims from review on a petition for writ of habeas corpus. Also in support of his position, the respondent argues that the trial court found that police had valid consent from the third party owner to search the property (TR at 191-195); certain exceptions to the warrant requirement were involved; and counsel’s decision to omit the “loser” Fourth Amendment claim from his appeal was within the range of constitutionally effective appellate counsel.

In his traverse, the petitioner complains that the respondent has mischaracterized this as a Fourth Amendment claim, when it is actually one of ineffective counsel. Therefore, although Fourth Amendment, claims themselves are foreclosed from review in a habeas petition, the attorney’s ineffectiveness for not raising the issue on appeal is a legitimate question for this Court, citing

Kimmelman v. Morrison,

477 U.S. 365 , 106 S.Ct. 2574 , 91 L.Ed.2d 305 (1986).

The claim that appellate counsel was ineffective for not raising the Fourth Amendment challenge was presented in the petitioner’s original RCr 11.42 motion. TR Vol. 5 at 631-31. However, on his appeal of the denial of that motion to the Kentucky Supreme Court, the claim regarding appellate counsel had become “IV. Bowling was Substantially Prejudiced ... By the Denial of Effective Assistance of Post-Conviction Counsel.” Brief at 47-48. He argued therein that post-conviction counsel making his RCr 11.42 motion were ineffective because they filed supplemental motions which warranted summary dismissal and because the trial court found that they had failed to meet their burden under the state rule. Appellate counsel went on to argue that Bowling was “entitled to effective assistance of post-conviction [sic] regarding his claims of ineffective trial and appellate counsel....”

Id.

at 48 (emphasis in the original).

Unsurprisingly, the Kentucky Supreme Court did not address the issue of the performance of appellate counsel but only the issue of whether post-conviction counsel rendered ineffective assistance.

15

*878

Thus, the state record shows that after presenting the claim of ineffective appellate counsel to the trial court in his 11.42 motion, the petitioner’s counsel essentially dropped the claim on appeal, thereby failing to present the issue to Kentucky’s highest court. For the purposes of federal habeas review, the petitioner’s current counsel has now attempted to retrieve the argument that appellate counsel was ineffective for failing to raise the Fourth Amendment claim. However, this Court is of the opinion that the petitioner did not “fairly present” this claim to the Kentucky Supreme Court and so it never had a fair opportunity to rule on the claim of ineffective appellate counsel. Therefore, this Court is barred from considering it unless the petitioner establishes that his case meets one of the exceptions to procedural default.

Bowling cannot meet the cause and prejudice standard. The Supreme Court has held that attorney error may constitute cause to excuse procedural default only if his or her performance meets the standard for being constitutionally ineffective under

Strickland. Murray v. Carrier,

477 U.S. at 488, 106 S.Ct. 2639 . The application of the Carrier rule is dis-positive of this claim in the instant case, as it was in

Coleman.

There is no constitutional right to an attorney in state post-conviction proceedings; and, therefore, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.

Coleman,

501 U.S. at 752 , 111 S.Ct. 2546

(citing, inter alia, Murray v. Carrier,

477 U.S. at 488, 106 S.Ct. 2639 , and

Murray v. Giarratano,

492 U.S. 1 , 109 S.Ct. 2765 , 106 L.Ed.2d 1 (1989)). Without cause, the question whether the petitioner would be prejudiced by his inability to raise the claim need not be considered.

See Carrier,

477 U.S. at 494 , 106 S.Ct. 2639 . Moreover, Bowling presents no case for there being a fundamental miscarriage of justice requiring the Court to forgive his default. Consequently, this Court is without jurisdiction to review the merits of the petitioner’s argument about appellate counsel.

Alternatively, if the reducing of his claim to part of a sentence in his RCr 11.42 appeal is not considered a default but a fair presentment which the Kentucky Supreme Court rejected without comment, then this court may reach it. As with all claims of constitutionally ineffective counsel, including appellate counsel, in order to succeed on the merits, a petitioner must show errors so serious that counsel was scarcely functioning as counsel at all and that those errors undermine the reliability of the defendant’s convictions, under the standards of

Strickland,

466 U.S. at 687 , 104 S.Ct. 2052 . “Not just any deficiency in counsel’s performance” is sufficient to excuse procedural default; “the assistance must have been so ineffective as to violate the Federal Constitution.”

Edwards v. Carpenter,

529 U.S. 446 , 120 S.Ct. 1587, 1591 , 146 L.Ed.2d 518 (2000).

Scrutinizing the merits of petitioner’s the Fourth Amendment claim in order to evaluate the performance of his counsel, this Court concludes that the claim was not a strong one. Petitioner’s appellate counsel may well have felt that, in light of the trial court’s ruling, the duly signed consent to search the Powell County Property (Trial Exhibit 1), and his research on the issue, the Fourth Amendment claim was a “loser,” or was inconsistent with

*879

Bowling’s continuing innocence stance, or was simply weaker than other arguments. Appellate counsel “need not advance every argument, regardless of merit, urged by petitioner.”

Evitts v. Lucey,

469 U.S. at 394, 105 S.Ct. 830 . The petitioner fails to show that dropping the claim falls outside the wide realm of professionally competent assistance.

See Kimmelman v. Morrison,

477 U.S. at 365, 106 S.Ct. 2574 . The very function of appellate counsel is to weed out the weak arguments and emphasize the strong arguments.

See Jones v. Barnes,

463 U.S. at 751-52, 103 S.Ct. 3308 . Strategic choices by counsel, including the jettisoning of some claims, while not necessarily those a federal judge in hindsight might make, do not rise to the level of a Sixth Amendment violation'.

See McMeans v. Brigano,

228 F.3d 674, 682 (6th Cir.2000) (citing

Jones,

463 U.S. at 750-54 , 103 S.Ct. 3308 ).

While a different lawyer might have done otherwise, the decision of the petitioner’s appellate counsel not to assert a Fourth Amendment claim was not unreasonable and affords no basis for the Court to conclude that he was not functioning as “counsel” in the Sixth Amendment sense.

Id.

Again, as with all of the' preceding claims of ineffective assistance of counsel, this Court agrees with the Kentucky Supreme Court’s reasonable application of clear federal law, under which the petitioner has failed to meet the two

Strickland

requirements for demonstrating that the assistance of his counsel was so ineffective that his constitutional rights were violated.

II.

PROSECUTORIAL MISCONDUCT

The petitioner challenges certain conduct of the prosecution at various stages, including pretrial, during the guilt phase, and at the penalty portion of the trial. Characterizing the prosecutor’s behavior as flagrant misconduct, Bowling alleges that it violated his rights under several amendments to the Constitution. The Court examines each contention below.

For the prosecutor’s misconduct to be found to violate a defendant’s constitutional rights, the habeas court must determine that the prosecutor’s actions “so infected the trial with unfairness as to make the resulting conviction a denial of due process.”

Donnelly v. DeChristoforo,

416 U.S. 637, 643 , 94 S.Ct. 1868 , 40 L.Ed.2d 431 (1974). Inquiry into the fundamental fairness of a trial can be made only after examining the entire proceedings.

Id.

If prosecutorial misconduct is found, it will be considered harmless error unless it constitutes a “structural defect [ ] in the constitution of the trial mechanism” rather than “an error in the trial process itself.”

Arizona v. Fulminante,

499 U.S. 279 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991). The Court’s standard for conducting the harmless error review was established in

Brecht v. Abrahamson,

507 U.S. 619 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993),

ie.,

whether the error “had substantial and injurious effect or influence in determining the jury’s verdict.”

Id.

at 637 , 113 S.Ct. 1710 .

A. INVESTIGATION OF THE MURDERS:

BRADY

VIOLATIONS

The petitioner’s first three allegations of prosecutorial misconduct are that he was denied his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments because of the Commonwealth’s failure to disclose exculpatory evidence in violation of

Brady v. Mainland,

373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963). It was in

Brady

that the Supreme Court declared, “[Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.... ”

Id.

at 87 , 83 S.Ct.

*880

1194. To establish a

Brady

violation, the petitioner must prove that (1) the prosecution suppressed evidence, (2) the evidence would have been favorable to the accused, and (3) the suppressed evidence was material to guilt or to punishment.

Brady,

378 U.S. at 87, 83 S.Ct. 1194 . Later Supreme Court cases have fleshed-out this inquiry.

The petitioner asserting a

Brady

violation has the burden of establishing the three factors.

See Moore v. Illinois,

408 U.S. 786, 794-95 , 92 S.Ct. 2562 , 33 L.Ed.2d 706 (1972). The inquiry is objective, “irrespective of the good faith or bad faith of the prosecution.”

See Brady,

373 U.S. at 87 , 83 S.Ct. 1194 . In

Kyles v. Whitley,

514 U.S. 419 , 115 S.Ct. 1555 , 131 L.Ed.2d 490 (1995), the Supreme Court summarized the relevant law on

Brady

violations. The Court therein also reaffirmed the rule that “ ‘a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’ ”

Id.

at 433 n. 7, 115 S.Ct. 1555 (quoting

United States v. Agurs,

427 U.S. 97, 103 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976)). Included among the evidence that

Brady

obligates the prosecution to disclose is “evidence affecting credibility.”

Giglio v. United States,

405 U.S. 150, 154 , 92 S.Ct. 763 , 31 L.Ed.2d 104 (1972). The Court in

Kyles

described as “settled” that, under the law, there is no difference between exculpatory and impeachment evidence for

Brady

purposes.

Kyles,

514 U.S. at 433 , 115 S.Ct. 1555 .

The court has recognized that

“Brady

is concerned only with cases in which the government possesses information which the defendant does not.”

See United States v. Mullins,

22 F.3d 1365, 1371 (6th Cir.1994). There is no

Brady

violation if the defendant knew or should have known the essential facts permitting him to take advantage of the information in question or if the information was available to him from another source.

See Coe v. Bell,

161 F.3d 320, 344 (6th Cir.),

cert. denied,

528 U.S. 842 , 120 S.Ct. 110 , 145 L.Ed.2d 93 (1999);

United States v. Clark,

928 F.2d 733, 738 (6th Cir.1991).

The state need not disgorge every bit of evidence in its possession. Materiality is an essential element of a

Brady

violation. A prosecutor is required “only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial.... ”

United States v. Bagley,

473 U.S. 667, 675 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985). “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.”

United States v. Agurs,

427 U.S. at 109-10 , 96 S.Ct. 2392 . “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.”

United States v. Bagley,

473 U.S. at 682 , 105 S.Ct. 3375 ;

see also Wood v. Bartholomew,

516 U.S. 1, 5 , 116 S.Ct. 7 , 133 L.Ed.2d 1 (1995) (quoting Bagley). “The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.”

Kyles v. Whitley,

514 U.S. at 434 , 115 S.Ct. 1555 . The determination of materiality must be made on the basis of the entire record, considering all th

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