Roger Wheeler v. Thomas Simpson

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 15a0031p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

ROGER L. WHEELER, ┐

Petitioner-Appellant, │

│

│ No. 11-5707

v. │

>

│

THOMAS L. SIMPSON, Warden, │

Respondent-Appellee. │

┘

Appeal from the United States District Court

for the Western District of Kentucky at Louisville

No. 3:09-cv-00336—Joseph H. McKinley, Jr., Chief District Judge.

Argued: October 1, 2014

Decided and Filed: February 20, 2015

Before: MERRITT, GRIFFIN, and WHITE, Circuit Judges.

_________________

COUNSEL

ARGUED: Joseph T. Flood, SHELDON, FLOOD & HAYWOOD, PLC, Fairfax, Virginia, for

Appellant. David W. Barr, OFFICE OF THE KENTUCKY ATTORNEY GENERAL,

Frankfort, Kentucky, for Appellee. ON BRIEF: Joseph T. Flood, SHELDON, FLOOD &

HAYWOOD, PLC, Fairfax, Virginia, David M. Barron, KENTUCKY DEPARTMENT OF

PUBLIC ADVOCACY, Frankfort, Kentucky, for Appellant. David W. Barr, OFFICE OF THE

KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.

MERRITT, J., delivered the opinion of the court in which WHITE, J., joined. GRIFFIN,

J. (pp. 16–45), delivered a separate dissenting opinion.

1

No. 11-5707 Wheeler v. Simpson Page 2

_________________

OPINION

_________________

MERRITT, Circuit Judge. This death penalty case from the Kentucky courts arises from

the brutal murder of two victims in October of 1997. For reasons explained below, we conclude

that a writ of habeas corpus must be issued as to the death sentence because the Kentucky trial

court erroneously struck from the jury a Mr. Kovatch, an eligible juror who may have been in

favor of sparing the Petitioner’s life. The state trial court, after a full examination of Mr.

Kovatch at voir dire, found him not to be “problematic” as a juror but one who “could consider

the entire range” of penalties. Then the next day the trial court excused him because the judge

mistakenly remembered him saying he would not consider the death penalty. The issue is one of

procedural fairness in administering the death penalty. As the Supreme Court has observed, to

permit the for-cause exclusion of an otherwise-eligible juror “unnecessarily narrows the cross-

section of venire members” required under the Sixth Amendment and “‘stack[s] the deck against

the petitioner. To execute [such a] death sentence would deprive him of his life without due

process of law.’” Gray v. Mississippi, 481 U.S. 648, 658-59 (1987) (quoting Witherspoon v.

Illinois, 391 U.S. 510, 523 (1968)).

I. Factual and Procedural History

In 2001, a Kentucky state jury sentenced Roger Wheeler to death after convicting him of

two counts of intentional murder.1 On direct appeal, the Supreme Court of Kentucky affirmed

Wheeler’s convictions and sentence, making the following findings of fact:

On October 2, 1997, Louisville police discovered the bodies of [Nigel Malone and

Nairobi Warfield] in the apartment the victims shared. The male victim was

found in a hallway near the bathroom. He had suffered nine stab wounds. Two

stab wounds to the chest were considered the fatal wounds by the medical

examiner. She described the crime scene as having blood spatters on the floor,

walls, furniture and appliances. The medical examiner believed that the main

1

The jury recommended a death sentence for each conviction after finding one aggravating circumstance:

Wheeler’s acts of killing were intentional and resulted in multiple deaths. See Ky. Rev. Stat. Ann.

§ 532.025(2)(a)(6).

No. 11-5707 Wheeler v. Simpson Page 3

struggle occurred in the kitchen and progressed to the hallway where the body of

the male victim was found.

The female victim died as a result of manual strangulation. The medical examiner

testified that she believed the struggle between the female and her assailant

occurred in the bedroom where she was found. The female victim had multiple

abrasions on the left side of her neck and lacerations with a bruise on her mouth

and several bruises on her lips. Her body was found in a seated position, leaning

against a bedroom wall. She was covered with a blanket or quilt and a scissors

was protruding from her neck. The medical testimony determined that she had

been stabbed with the scissors after she was already dead. During the autopsy, the

medical examiner discovered that the female victim was pregnant.

There was blood on the floors and walls in nearly every room in the apartment.

Numerous blood samples were also collected at the scene and were subject to

laboratory testing. No fingerprints were found on the scissors.

Wheeler denied killing the two victims but he changed his story on several

occasions. Originally, he denied ever being inside of the apartment on the night

the murders occurred but then later admitted being in the apartment on that night.

He claimed that Nigel Malone was already stabbed, but that he did not see

Nairobi Warfield. He also asserts that the assailant was already inside the

apartment and he and that person fought which was why he was wounded.

Wheeler v. Commonwealth, 121 S.W.3d 173, 178 (Ky. 2003) (Wheeler I). The Kentucky state

courts subsequently denied Wheeler’s petition for post-conviction relief. See Wheeler v.

Commonwealth, No. 2006-SC-000901-MR, 2008 WL 5051579, at *11 (Ky. Nov. 26, 2008)

(Wheeler II).

Wheeler filed the instant petition for a writ of habeas corpus in May of 2009. Overruling

Wheeler’s timely objections, the district court adopted the magistrate judge’s report and granted

summary judgment to the State on all claims. We ultimately certified twelve claims for appellate

review. Of these claims, six concern Wheeler’s conviction; the rest deal with the jury’s

imposition of the death penalty.

II. The Exclusion of Mr. Kovatch

The Kentucky trial judge struck Juror Kovatch from the jury even though he expressly

stated that he could consider the full range of punishment — including the death penalty — after

earlier expressing reservations and uncertainty about its wisdom. In reviewing his exclusion, the

Supreme Court of Kentucky neither provided any details about Mr. Kovatch nor referred to

No. 11-5707 Wheeler v. Simpson Page 4

Supreme Court case law on the subject. Instead, it simply stated that the trial judge

“appropriately struck for cause those jurors that could not impose the death penalty.” Wheeler I,

121 S.W.3d at 179.

The Kentucky trial judge conducted the initial voir dire of Mr. Kovatch before the

lawyers examined him. She inquired whether he could consider the entire range of penalties,

specifically asking about “[twenty] years imprisonment” and “the death penalty.” Voir Dire Tr.

at 1. He replied he “probably” could consider the death penalty “after some deep reflection.” Id.

Mr. Kovatch further said that he had not “formed an opinion one way or the other” regarding the

death penalty and noted that there were “arguments on both sides of . . . it.” Id. at 2.

Furthermore, he did not believe he had “any moral, religious, spiritual or personal beliefs that

would keep [him] from considering the death penalty.” Id.

The prosecutor’s voir dire questioning explained that if the jury found the defendant

guilty of two homicides, “the Judge, at that point, would give [the jury] a penalty range of

[twenty] years all the way up to the death penalty and all the options in between.” Id. at 6. Mr.

Kovatch replied that he had never “been confronted with that situation” before and it was

“difficult for [him] to judge how [he] would . . . act.” Id. The prosecutor then asked Mr.

Kovatch if he was saying he was “not absolutely certain whether [he] could realistically consider

[the death penalty]. . . .” Id. at 7 (emphasis added). Mr. Kovatch acknowledged he was not

“absolutely certain” by saying, “I think, I think that would be the most accurate way I could

answer your question.” Id.

Soon after, upon examination by defense counsel, Mr. Kovatch described the death

penalty as “a very philosophical topic” and “a very difficult one.” Id. at 8. He discussed getting

older, understanding “a lot more things about values and [] life itself.” Id. He described himself

as “a bit more contemplative on the issue of taking a life and . . . whether or not we have the

right to take that life.” Id. He was then asked whether he felt he could “consider all of the

options presented.” Id. at 9. He responded, “I believe I can, sir.” Id.

After the trial judge excused the jurors for the evening, the prosecution moved to excuse

Mr. Kovatch for cause, claiming he gave “two inconsistent answers” because “he could not say

whether he could realistically consider the death penalty or not.” Id. at 9. The prosecutor

No. 11-5707 Wheeler v. Simpson Page 5

suggested that the “gravamen of his testimony” provided grounds to strike him for cause under

Gall v. Parker, 231 F.3d 265 (6th Cir. 2000), as “a juror who can’t say if he can give the death

penalty.” Voir Dire Tr. at 9-10.

Responding to the prosecution’s motion, defense counsel highlighted Mr. Kovatch’s

answers to the judge indicating his ability to consider “all the penalty options.” Counsel said he

was “a man who has contemplated this issue” who “wants to be . . . very honest and candid with

the Court” despite having “some reservations about the death penalty.” Id. The defense further

argued (correctly) that nothing in the case law disqualifies a juror “because they . . . question

some aspects of the death penalty or they consider it to be a serious matter, or they consider it to

be something that . . . calls into question[] . . . issues of . . . life and how important it is.” Id.

Responding immediately to the prosecutor’s motion, the trial judge expressed her

impression that Mr. Kovatch was “someone who would take this job very seriously and who had

serious reservations about the death penalty.” Id. at 12. She believed he was someone who

“could consider the entire range” after her questioning and “didn’t even see him as problematic

when [she] got through with him.” Id. The trial judge then took the motion under advisement.

The following morning, the trial judge struck Mr. Kovatch for cause, relying on an

inaccurate paraphrase of the record suggesting that Mr. Kovatch “couldn’t consider” the death

penalty:

[T]he Commonwealth moved to strike Mr. Kovatch because . . . of his expressed

. . . concerns about considering the entire range. And when I went back and

reviewed his entire testimony, [the prosecutor] concluded with saying, “Would it

be accurate to say that you couldn’t, couldn’t consider the entire range?” And his

response is — I think was, “I think that would be pretty accurate.” So I’m going

to sustain that one too.

Id. at 14 (emphasis added). This description differed materially from the prosecutor’s actual

question: “And if I understand you correctly, you’re . . . telling me that, at this point you’re not

absolutely certain whether you could realistically consider it or not?” Id. at 7 (emphasis added).

Mr. Kovatch agreed he did not know to an absolute certainty whether he could

realistically consider the death penalty, but the court proceeded as if he knew he could not. Mr.

Kovatch clearly stated he could consider the full range of penalties prescribed by Kentucky law,

No. 11-5707 Wheeler v. Simpson Page 6

and before her subsequent mischaracterization of his answer, the trial judge observed that he

could “consider the entire range” and should be viewed as a good juror who was not even

“problematic.”

Although Supreme Court precedent addressing the exclusion of venirepersons from

death-penalty juries has evolved and been clarified, the Court has repeatedly held that a

venireperson who has reservations about the death penalty cannot be excused for cause if he or

she is able to follow the trial court’s instructions and consider all penalties provided under the

law. In Witherspoon, the first Supreme Court case in a line of cases addressing this issue, the

Court held that the only venirepersons who may be excluded for cause are:

[T]hose who made unmistakably clear (1) that they would automatically vote

against the imposition of capital punishment without regard to any evidence that

might be developed at the trial of the case before them, or (2) that their attitude

toward the death penalty would prevent them from making an impartial decision

as to the defendant’s guilt.

391 U.S. at 522 n.21. In Wainright v. Witt, the Court clarified Witherspoon as follows:

That standard is whether the juror’s views would “prevent or substantially impair

the performance of his duties as a juror in accordance with his instructions and his

oath.” We note that, in addition to dispensing with Witherspoon’s reference to

“automatic” decisionmaking, this standard likewise does not require that a juror’s

bias be proved with “unmistakable clarity.” This is because determinations of

juror bias cannot be reduced to question-and-answer sessions which obtain results

in the manner of a catechism.

469 U.S. 412, 424 (1985) (footnote omitted).

In subsequent cases, the Court again clarified its position by holding that a juror may not

be excluded if, like Mr. Kovatch, he can set aside his doubts and consider the death penalty. In

Lockhart v. McCree, Justice Rehnquist explained:

It is important to remember that not all who oppose the death penalty are subject

to removal for cause in capital cases; those who firmly believe that the death

penalty is unjust may nevertheless serve as jurors in capital cases so long as they

state clearly that they are willing to temporarily set aside their own beliefs in

deference to the rule of law.

476 U.S. 162, 176 (1986). And, in Uttecht v. Brown, the most recent Supreme Court decision to

discuss the for-cause removal of death penalty sentencing-phase juror, the Court again reiterated

No. 11-5707 Wheeler v. Simpson Page 7

that “[c]apital defendants have the right to be sentenced by an impartial jury,” and, to this end,

reaffirmed that “[t]he State may not infringe [the Witt right] by eliminating from the venire those

whose scruples against the death penalty would not substantially impair the performance of their

duties.” 551 U.S. 1, 9, 22 (2007).

Although Uttecht held that a trial judge’s decision regarding for-cause removals should

be afforded great deference, id. at 17–22, it also made clear that “[t]he need to defer to the trial

court’s ability to perceive jurors’ demeanor does not foreclose the possibility that a reviewing

court may reverse the trial court’s decisions where the record discloses no basis for a finding of

substantial impairment,” id. at 20. In Uttecht, the deference owed to the trial judge was largely

premised on the trial judge’s ability to “observe the demeanor of [the juror during voir dire],”

and the defense’s decision not to object when, after voir dire had concluded, the State challenged

the juror for cause. Id. at 17–19 (“The defense’s volunteered comment that there was no

objection is especially significant. . . .”). Moreover, it was clear from the record that the juror

“had both serious misunderstandings about his responsibility as a juror and an attitude toward

capital punishment that could have prevented him from returning a death sentence under the facts

of this case.” Id. at 13.

Here, Mr. Kovatch did not display a misunderstanding of his role as a potential juror or

misstate the applicable law. He understood the decisions he would face and engaged with them

in a thoughtful, honest, and conscientious manner. More important in the context of Uttecht, the

trial judge’s initial assessment of Mr. Kovatch’s answers and demeanor reveals that she judged

him as someone who “could consider the entire range” and “didn’t even see him as problematic

when [she] got through with him.”2 The trial judge reversed her initial assessment of Mr.

2

In responding to the State’s challenge, the trial judge said:

Well, um, my overall sense was that he was, uh, someone who would take this

job very seriously and who had serious reservations about the death penalty, but

his responses to my questions were not at all indicative of someone – uh, in fact,

what I do when I finish my, my questioning is, is, first of all, put down “could

consider entire range” or “exhibits reluctance on death penalty” or “exhibits

reluctance on 20 years” or “can’t consider” – I do sort of a summary. Uh, and I

put “could consider entire range.” I mean, I didn’t even see him as problematic

when I got through with him. Um, I think if you look at the totality of the

questioning, what he’s indicating, uh, that I understood was that he would take it

very seriously but that he could consider the entire range. Um, and I guess and,

and maybe I just didn’t hear it phrased the, the way that [the prosecution] phased

it but, um, I didn’t hear him say that he couldn’t realistically consider the death

penalty. Did he actually say that?

No. 11-5707 Wheeler v. Simpson Page 8

Kovatch’s qualification, which was based on his demeanor and answers, after misapprehending a

single question and answer exchange with the prosecutor. Had the trial judge properly processed

that exchange, her initial belief that Mr. Kovatch was not “problematic” and “could consider the

entire range” would have been confirmed. Thus, the deference owed to the trial judge’s ability to

assess Mr. Kovatch’s demeanor supports that he was Witt-qualified to serve on Wheeler’s jury.

Aware of the great deference owed a trial judge’s decision to remove a potential juror for

cause, we nevertheless find that the Kentucky court unreasonably applied clearly established

Supreme Court law—namely, Witt and its progeny—when it held that Mr. Kovatch’s removal

for cause was constitutional.3

The Supreme Court has repeatedly made clear that the improper exclusion of a qualified

juror in a death penalty case is presumed prejudicial. In Gray, it stated that it had “established a

per se rule requiring the vacation of a death sentence imposed by a jury from which a potential

juror, who has conscientious scruples against the death penalty but who nevertheless under

Witherspoon is eligible to serve, has been erroneously excluded for cause.” Gray, 481 U.S. at

659 (citing Davis v. Georgia, 429 U.S. 122, 123–24 (1976)). Thus, an improper for-cause

exclusion of a prospective juror such as Mr. Kovatch is precisely the type of “structural error”4

that the Supreme Court has said may not be excused through harmless-error analysis or on

grounds of a lack of prejudice.

Since the Lockhart and Gray cases in 1986 and 1987, this has been the constitutional rule

we must apply in all for-cause juror-exclusion cases. See, e.g., Uttecht, 551 U.S. at 22 (“The

State may not infringe this right by eliminating from the venire those whose scruples against the

death penalty would not substantially impair the performance of their duties.”). The specificity

and clarity of this rule also satisfies the AEDPA statutory requirement that a writ of habeas

corpus may not be issued against a state-court judgment unless the state decision “was contrary

R. 74, PID 892–93.

3

We also observe that the trial judge’s misapprehension of Mr. Kovatch’s exchange with the prosecutor

may itself warrant relief under 28 U.S.C. § 2254(d)(2) because it led to a “a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” We need

not reach that question.

4

For a discussion of the “structural error” cases, including the Gray case, see 3B Charles Alan Wright et

al., Federal Practice and Procedure § 855 (4th ed. 2014).

No. 11-5707 Wheeler v. Simpson Page 9

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).5

Because we find that the trial court unconstitutionally excluded Mr. Kovatch from the

jury warranting a new penalty-phase trial for Wheeler, we need not decide and therefore

pretermit any other sentencing issues raised in his habeas petition. We will now turn to the

issues raised by Wheeler concerning the guilt phase of his trial. We do not find that any of them

warrant habeas relief.

III. Evidence of Victim’s Pregnancy

Wheeler contends that the trial court denied him a fundamentally fair trial by admitting

“irrelevant” evidence that the female victim, Nairobi Warfield, was pregnant at the time of her

death. In the state appellate courts, Wheeler framed this issue primarily as a violation of

Kentucky state law6 as well as the Fourteenth Amendment of the United States Constitution. In

this habeas appeal, he asserts that the allegedly improper admission of the evidence was so

prejudicial as to render his entire trial fundamentally unfair.

There were only two references to Warfield’s pregnancy at trial.7 The Supreme Court of

Kentucky held that this evidence was admissible and not prejudicial under Kentucky law,

particularly in light of the “brief” role it played. Wheeler I, 121 S.W.3d at 181. Thus, this claim

is not cognizable on federal habeas corpus review — at least to the extent that Wheeler claims its

admission contravened Kentucky’s laws or its rules of evidence. See, e.g., Bey v. Bagley,

500 F.3d 514, 519 (6th Cir. 2007) (“[E]rrors in application of state law, especially with regard to

the admissibility of evidence, are usually not cognizable in federal habeas corpus.”).

5

AEDPA deference prevents federal habeas courts from upsetting many state court determinations. Under

AEDPA, we may not grant a writ of habeas corpus unless the state court’s adjudication of the claim was contrary to

or an unreasonable application of federal law or “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). An

unreasonable application of clearly established federal law occurs where a state court accurately identifies the

governing legal rule but applies it in an unreasonable manner to the facts of the case before it. Moore v. Berghuis,

700 F.3d 882, 886 (6th Cir. 2012).

6

Wheeler argued that the admission of this evidence violated Kentucky Rule of Evidence 404(b) as well as

Sections 2 and 11 of the Kentucky Constitution — which provide for a right to a fair trial.

7

The medical examiner testified the autopsy revealed that Warfield was pregnant with a small embryo, and

the prosecution also briefly mentioned the pregnancy during its closing argument. (R. 52, PID # 57).

No. 11-5707 Wheeler v. Simpson Page 10

Wheeler cites no Supreme Court decisions in which several brief references to the

pregnancy of the murder victim, without more, have been held sufficiently egregious so as to

violate the due process clause.8 It stands to reason that a state court cannot rule contrary to

established precedent when no such precedent exists. In short, Wheeler has failed to persuade us

that the admission of evidence related to Warfield’s pregnancy rendered his trial fundamentally

unfair. Accordingly, no habeas relief is appropriate on this claim.

IV. Ineffective-Assistance-of-Counsel Claims

To demonstrate ineffective assistance of counsel, Wheeler must demonstrate that his trial

“counsel’s performance was deficient, and that the deficiency prejudiced his defense.” Wiggins

v. Smith, 539 U.S. 510, 521 (2003) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

Moreover, “[w]hen § 2254(d) applies, the question is not whether counsel’s actions were

reasonable. The question is whether there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.” Harrington v. Richter, 131 S. Ct. 770, 788 (2011).

Wheeler raises three guilt-phase ineffective-assistance-of-counsel claims. We address

each in turn.

A. Failure to Conduct an Adequate Investigation of Wheeler’s Shoes

Police found several bloody shoe prints at the crime scene. In the middle of trial,

Wheeler informed his trial counsel that he still possessed the gray Nike tennis shoes he claimed

to have worn when he entered the victims’ apartment on the night of the murders. Wheeler’s

trial counsel thus attempted to introduce these shoes for the jury to compare with the bloody

shoeprints. The trial court, however, sustained the prosecution’s objection and excluded the

shoes on grounds of inadequate notice and lack of a chain of custody. The Supreme Court of

Kentucky held that their exclusion was proper for a different reason: the shoes were irrelevant

because Wheeler never testified that he was wearing them while he was inside the victims’

apartment on the night of the murders. Rather, Wheeler testified on avowal only that he was

wearing them the next day when he was arrested. Nor did the defense offer any other evidence

8

Wheeler’s brief relies heavily on the Fifth Circuit’s opinion in White v. Thaler, 610 F.3d 890 (5th Cir.

2010). This case does not entitle him to habeas relief. Even if we were to conclude that the Supreme Court of

Kentucky’s decision in this case was “contrary to” White, that case is not Supreme Court precedent as required by

28 U.S.C. § 2254(d)(1).

No. 11-5707 Wheeler v. Simpson Page 11

to link the shoes to the crime scene. Thus, “[t]he mere fact that Wheeler owned a pair of shoes

that may or may not have matched the shoe prints found at the crime scene did not tend to make

the defense theory more probable.” Wheeler I, 121 S.W.3d at 182.

In this habeas appeal, Wheeler argues that his trial counsel was ineffective for: (1) failing

to elicit testimony that his shoe size was larger than the prints found by police; (2) failing to lay a

proper foundation for introducing the tennis shoes he claims he was wearing the night of the

murders; and (3) failing to retain a shoeprint expert.

As an initial matter, Wheeler’s claim that his trial counsel should have elicited testimony

from him about his shoe size is procedurally defaulted. Wheeler did not present this claim to the

state courts, and no state remedy now exists for doing so. See Lovins v. Parker, 712 F.3d 283,

293 (6th Cir. 2013). Nor does Wheeler attempt to show cause and prejudice to cure the default.

Accordingly, no relief is warranted.

Wheeler also faults his trial counsel for failing to elicit testimony as to whether he wore

his tennis shoes on the night of the murders. The thrust of this argument is that admission of the

tennis shoes would have corroborated Wheeler’s testimony and thus enhanced his credibility —

i.e., someone else must have committed the murders if the bloody footprints were not his. This

line of reasoning omits a critical point: Wheeler cannot demonstrate prejudice without knowing

the victims’ shoe sizes. The bloody footprint may have belonged to one of them.

As for his claim regarding his trial counsel’s failure to call a shoe expert, Wheeler

asserted in his state post-conviction proceedings that had his tennis shoes been admitted into

evidence, an expert would have been unnecessary for “jurors to compare the shoes with the shoe

prints at the scene. A layperson could determine this fact.” Wheeler II, 2008 WL 5051579, at

*6. The Supreme Court of Kentucky considered this admission “tantamount to a concession that

lack of an expert was not ineffective assistance.” Id. We agree. In light of these facts and the

strength of the murder evidence, we cannot say that the Supreme Court of Kentucky

unreasonably applied Strickland by holding that Wheeler was not prejudiced by the lack of a

shoe expert.

No. 11-5707 Wheeler v. Simpson Page 12

B. Other Ineffective-Assistance-of-Counsel Claims

Wheeler claims that his trial counsel was constitutionally ineffective for failing to explain

the presence of his blood on the female victim’s thigh. He further argues that his trial counsel

was ineffective for not sufficiently investigating or challenging the adequacy of the police

techniques used to gather the blood evidence at the crime scene. The answer to these arguments

is that there was simply no evidence his lawyer could use to rebut this evidence of guilt.

Wheeler’s brief cites neither any authority nor any portion of the record in support of this claim.

Hence, this claim must be rejected.

Wheeler further contends that his trial counsel was ineffective for failing to call Earl

Ricketts, Jr., to contradict the testimony of Denise Mumpfort. Mumpfort worked at a

convenience store near the apartment where the murders occurred and testified that

Wheeler had entered the store that night looking like someone had “poured [blood] on his head.”

Wheeler claims that Ricketts, a security guard at the store, would have testified that Wheeler

only had some blood on him “but not a lot.” This proposed testimony would not have

contradicted Mumpfort’s in any material way. The mere presence of blood is all that mattered

given Wheeler’s testimony that he had been injured while fighting the alleged assailant who was

armed with a knife. Trial counsel’s decision not to call Ricketts was thus a question of tactics,

and was not a significant mistake, if a mistake at all.

V. Prosecutorial Misconduct

Wheeler’s first claim of misconduct involves the prosecutor’s references to the shoeprint

argument as a “defense trick” designed to distract the jury from more critical evidence.9 The

Kentucky trial court held that these statements were fair commentary on the defense’s theory of

the case — i.e., Wheeler’s reliance upon supposed inconsistencies with various shoeprints. The

Kentucky Supreme Court held that the prosecutor’s comments did not deprive Wheeler of a

fundamentally fair trial. Wheeler I, 121 S.W.3d at 189. Although the word “trick” can be

viewed as unnecessarily pejorative, the comment was both isolated and responsive, and the

9

The prosecutor said: “So [the defense] gets up and said, ‘Well, the shoeprint, that’s the most telling of

all.’ Forget about all that DNA, forget about all the lies. It’s called the defense trick. Look away, look away, look

away. Don’t look at the facts.” PID 2053.

No. 11-5707 Wheeler v. Simpson Page 13

Kentucky Supreme Court reasonably concluded that the comment did not have an effect on

Wheeler’s due process right to a fair trial.

Wheeler also condemns the prosecutor’s comments in closing concerning the

unavailability of Wheeler’s tennis shoes — evidence the prosecution itself had successfully

convinced the trial court to exclude. Specifically, the prosecutor stated, “We need a shoe to

compare [the bloody shoeprint] to. We don’t have that. If you remember, [Wheeler] says, ‘I had

. . . gray Nike tennis shoes, denim pants and a black or dark sweatshirt on.’ He knows where his

clothes are at. Mr. Cooperative never brought them in.”10 Wheeler argues that this statement

amounts to an improper attempt to shift the burden of proof onto him — i.e., he needed to

produce his tennis shoes in order to establish his innocence. The Kentucky trial court held that

by previously mentioning the shoeprint evidence, Wheeler’s trial counsel opened the door for the

prosecution to discuss that topic. The Kentucky Supreme Court held that the argument did not

render Wheeler’s trial fundamentally unfair. Wheeler I, 121 S.W.3d at 189. This conclusion did

not involve an unreasonable application of federal law.

Wheeler’s final misconduct argument concerns the prosecutor’s statements regarding

Shannon Calloway, a witness who discovered the victims’ bodies and later accused Wheeler of

being the perpetrator. Unbeknownst to the jury, Calloway died before trial in an unrelated

10

During closing argument, Wheeler’s counsel focused on the shoeprint evidence several times, arguing:

“Now when you go back to deliberate, I’m going to ask you to look very, very closely at the shoeprint evidence. . . .

Please look very, very closely when you get back there. This shoeprint [lifted from the crime scene] and these

shoeprints [lifted from a different area of the crime scene] don’t match. There were obviously at least two other

people in that home.” PID 2014–42. Later, she suggested that a witness who was not called left the shoeprints:

“Maybe they should have checked Shannon Calloway’s shoe size. Maybe they should have compared Shannon

Calloway’s shoes to what they’ve got here.” PID 2046. Again, “There had to be more than one person [in the

home]. The shoeprint evidence tells you that.” PID 2047. All of this appears to be support for the defense’s

ultimate conclusion that: “Now if these shoeprints would have fit those of Roger Wheeler’s, you would have heard

that evidence. Those aren’t Roger Wheeler’s shoeprints.” PID 2048.

Aware that the defense’s closing argument revolved around the shoeprint evidence (or lack thereof), the

prosecutor responded: “ETU [the state’s evidentiary unit] does a good, thorough job [lifting the shoeprints]. . . . But

you know what? We need a shoe to compare it to. We don’t have that. If you remember, [Wheeler] says, ‘I had

gray Nike Airs or gray Nike tennis shoes, denim pants, and a black or dark sweatshirt on.’ He knows where his

clothes are at. Mr. Cooperative never brought [the shoes] in.” PID 2051–52.

The trial judge overruled the defense’s objection to this statement. Out of the presence of the jury, the trial

judge first commented that the defense had tried to introduce the shoes only after trial had started (and thus the

evidence was untimely). The trial judge then stated: “I do think it’s fair for [the prosecutor] to comment on the fact

that [the defense] focused greatly on the shoeprint [evidence]. . . where that could have been pursued and it wasn’t.”

PID 5052–53.

Regarding use of “Mr. Cooperative,” the prosecutor made clear that “[the defense attorneys] keep

hammering on how cooperative [Wheeler] was [when approached by police prior to being arrested], and that’s why

I’m making the statement if he was so cooperative, then why didn’t he bring [the shoes] in, too?” PID 2053. The

trial judge responded that she understood the prosecutor’s reasoning and did not suggest it was improper.

No. 11-5707 Wheeler v. Simpson Page 14

incident. In final arguments, however, the defense suggested that Calloway may have been the

real murderer but never explained that he was dead. In response, the prosecutor’s closing

argument stated that it was “kind of difficult in the middle of trial to stand up and run out and

find people that the Defense wants us to get up and start pointing fingers at.” Wheeler contends

that this argument was improper for suggesting that he had some duty to call Calloway or had

something to hide by failing to call Calloway as a witness. Again, the Kentucky Supreme Court

determined that the argument did not deprive Wheeler of a fundamentally fair trial, and this

determination, too, was not unreasonable. It is clear from the record that the prosecutor’s

comments were made in response to Wheeler’s trial counsel’s intimations that Calloway was the

real murderer.

VI. Requested Jury Instructions

Finally, Wheeler argues that the trial court’s failure to instruct the jury on voluntary

intoxication and extreme-emotional disturbance denied him a fundamentally fair trial and thus

was contrary to, or an unreasonable application of, the Supreme Court’s holding in Beck v.

Alabama, 447 U.S. 625 (1980).

In capital cases, Beck requires a jury be instructed on non-capital lesser-included offenses

only if “the evidence would permit a jury rationally to find [the defendant] guilty of the lesser

offense and acquit him of the greater.” Id. at 635. Moreover, “due process requires that a lesser

included offense instruction be given only when the evidence warrants such an instruction.”

Hopper v. Evans, 456 U.S. 605, 611 (1982). Thus, we must consider the facts of the case and the

criminal laws of the state to determine whether the requested instruction on a lesser-included

offense is warranted. See Smith v. Bradshaw, 591 F.3d 517, 523-25 (6th Cir. 2010).

To receive extreme-emotional-disturbance instructions under Kentucky law, a defendant

must put forth evidence of a dramatic “triggering event” that created “temporary emotional

disturbance that overwhelm[ed] the defendant’s judgment.” Baze v. Parker, 371 F.3d 310, 325

(6th Cir. 2004) (citations omitted). Wheeler, however, has made no such showing. Neither his

testimony nor any circumstantial evidence suggested any possible triggering event that would

cause a mindless explosion of brutal violence. The Supreme Court of Kentucky thus reasonably

found that Wheeler was not entitled to an extreme-emotional-disturbance instruction.

No. 11-5707 Wheeler v. Simpson Page 15

The same is true concerning the voluntary-intoxication instruction. Under Kentucky law,

this instruction is warranted only where the evidence sufficiently indicates a voluntary

intoxication so severe that the defendant not only could not form the intent to kill, but also did

not know what he or she was doing at the time. Harris v. Commonwealth, 313 S.W.3d 40, 50-51

(Ky. 2010) (citation omitted). Although Wheeler had undoubtedly been drinking and smoking

crack cocaine the night of the murders, the record presents no evidence suggesting that he was so

intoxicated that he could not conform his conduct to the law. Indeed, Wheeler’s testimony as to

his actions later that evening confirmed that he was well aware of events around him and acting

of his own volition. Again, the Supreme Court of Kentucky reasonably reached this exact

conclusion in accordance with the Beck standard.

VII. Conclusion

For the foregoing reasons, we hold that Wheeler is entitled to habeas relief as to his death

sentence only. The judgment of the District Court is affirmed as to the guilt phase of the state

trial. Contrary to our dissenting colleague’s view, however, AEDPA does not protect an

inconsistent ruling by the state trial judge based on a mistaken memory of a juror’s earlier voir

dire testimony. The judgment, therefore, is reversed as to the death sentence, and the case is

remanded with instructions to issue the writ of habeas corpus.

No. 11-5707 Wheeler v. Simpson Page 16

_________________

DISSENT

_________________

GRIFFIN, Circuit Judge, dissenting. Petitioner Roger Wheeler, a Kentucky death row

inmate, appeals a federal district court order denying his petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. The district court granted a certificate of appealability (COA) on

ten claims, and we certified two additional claims. Unlike the majority, I conclude that petitioner

is not entitled to habeas relief on any of his claims. Thus, I respectfully dissent.

I.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) limits federal

habeas review of state court proceedings and provides that an application for a writ of habeas

corpus shall not be granted with respect to any claim that was adjudicated on the merits in state

court proceedings unless 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).

A state court adjudication is “contrary to” Supreme Court precedent under § 2254(d)(1)

“if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a

question of law[,]” or “if the state court confronts facts that are materially indistinguishable from

a relevant Supreme Court precedent and arrives at [an opposite result].” Williams v. Taylor,

529 U.S. 362, 405 (2000). Under the “unreasonable application” clause of § 2254(d)(1), habeas

relief is available 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

case[.]” Harris v. Haeberlin, 526 F.3d 903, 909 (6th Cir. 2008) (citations and internal quotation

marks omitted). “In order for a federal court to find a state court’s application of [Supreme

Court] precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or

No. 11-5707 Wheeler v. Simpson Page 17

erroneous,” but rather “must have been ‘objectively unreasonable.’” Wiggins v. Smith, 539 U.S.

510, 520–21 (2003) (citations omitted). That means

even clear error will not suffice. Rather, as a condition for obtaining habeas

corpus from a federal court, a state prisoner must show that the state court’s ruling

on the claim being presented in federal court was so lacking in justification that

there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.

White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (emphasis added, citations, quotation marks, and

alterations omitted). In short, the standard for obtaining federal habeas relief is “difficult to

meet.” Id. (citation omitted).

In the present case, the Kentucky state trial court dismissed for cause a potential juror

because he equivocated in his responses at voir dire, claiming to be able to apply the death

penalty, while at the same time expressing reservations about his ability to do so. The state trial

court ultimately found that Mr. Kovatch was impermissibly biased because he “expressed . . .

concerns about considering” the death penalty as a sentencing option and dismissed him for

cause. Because the state trial court’s decision was neither an unreasonable determination of the

facts nor an “error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement,” White, 134 S. Ct. at 1702, petitioner is not entitled to habeas relief on

this issue.

II.

A.

First, petitioner Wheeler argues that the trial court’s decision to dismiss Mr. Kovatch was

based on an unreasonable determination of the facts, thus violating § 2254(d)(2). A trial court’s

finding regarding a juror’s bias is a finding of fact. Bowling v. Parker, 344 F.3d 487, 519 (6th

Cir. 2003) (citing Patton v. Yount, 467 U.S. 1025, 1036 (1984)). In addition to § 2254(d)(2),

§ 2254(e)(1) applies to our review of a state court’s factual determinations. Taken together,

these provisions embody the principle that, on habeas review, federal courts must afford

substantial deference to the factual findings of a state court.

No. 11-5707 Wheeler v. Simpson Page 18

The Supreme Court has explained:

AEDPA instructs that, when a federal habeas petitioner challenges the factual

basis for a prior state-court decision rejecting a claim, the federal court may

overturn the state court’s decision only if it 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 prisoner bears the burden of rebutting

the state court’s factual findings “by clear and convincing evidence.”

§ 2254(e)(1). We have not defined the precise relationship between § 2254(d)(2)

and § 2254(e)(1), and we need not do so here. See Wood v. Allen, 558 U.S. 290,

293 (2010). For present purposes, it is enough to reiterate “that a state-court

factual determination is not unreasonable merely because the federal habeas court

would have reached a different conclusion in the first instance.” Id., at 301.

Burt v. Titlow, 134 S. Ct. 10, 15 (2013).

Petitioner argues that deference to the state trial court’s findings of fact is not warranted

because the court misread the voir dire testimony related to Mr. Kovatch. In other words,

petitioner argues that the transcript itself is conclusive proof that the state trial court’s conclusion

about Mr. Kovatch’s bias was an unreasonable determination of the facts. I disagree.

When questioned by the trial court about whether he could consider the death penalty,

Mr. Kovatch replied, “[p]robably with some deep reflection.” When the state judge asked him

about his beliefs about the death penalty, Mr. Kovatch replied that he believed there were

“arguments on both sides” of the issue and that he had not “formed an opinion one way or the

other.” The court then asked Mr. Kovatch whether he was a member of any religious or spiritual

group that had an opinion concerning the death penalty; he responded that “[i]t is a topic of

discussion” within that context. The prosecutor asked Mr. Kovatch if his position was that he

was not “absolutely certain whether [he] could realistically consider” the death penalty, and Mr.

Kovatch replied “that would be the most accurate way” to describe his position on the death

penalty. Later, during questioning by defense counsel, Mr. Kovatch expressed his views on the

death penalty as follows:

[It is] a very philosophical topic. I think a very difficult one. Um, the older I get,

uh, perhaps the more I understand, uh, a lot more things about values and . . . life

itself. I have four children, and those things are important to me. So, uh, perhaps

I’m a bit more contemplative on the issue of taking a life and, uh, whether or not

we have the right to take that life.

No. 11-5707 Wheeler v. Simpson Page 19

However, Mr. Kovatch later indicated that he would be able to consider “all of the [sentencing]

options presented.”

The prosecutor moved to strike Mr. Kovatch for cause, arguing that he had given

inconsistent answers regarding his ability to consider the death penalty. Defense counsel

opposed the motion, arguing that “in the totality of his answers, clearly we’ve got an individual

who has some reservations about the death penalty” but still argued that Mr. Kovatch could

consider the death penalty as an option. The state trial judge ultimately agreed with the

prosecutor that Mr. Kovatch was impermissibly biased and dismissed him for cause.

Based on this record, petitioner has not met his burden to overcome the presumption of

correctness afforded to the state trial court’s fact-finding. The record regarding Mr. Kovatch is

substantially similar to that in Jackson v. Houk, 687 F.3d 723, 739–40 (6th Cir. 2012), cert.

denied, 133 S. Ct. 1243. In Jackson, this court did not disregard the AEDPA deference afforded

to the state court’s factual findings, even though the record showed that a prospective juror was

“equivocal in her responses” to questions about whether she could apply the death penalty. Id. at

739. Just as Mr. Kovatch in this case opined that he was “not . . . certain” that he could apply the

death penalty, and that he was “contemplative” as to whether “we have the right to take [a]

life[,]” Juror 301 in Jackson indicated she “didn’t know” whether she could apply the death

penalty. Id. at 740 (alteration omitted). Just as Mr. Kovatch here opined that he could consider

all the sentencing options presented, Juror 301 in Jackson indicated unambiguously that she

would “fairly consider” the death penalty, despite her reservations, and “would try” to apply it.

Id. Thus, in Jackson, as here, a juror expressed doubts about the wisdom of the death penalty yet

also equivocated, claiming to be able to apply it fairly. In both cases, the juror was struck for

cause. Jackson relied on the deference owed to the state trial court in affirming. Id. Under the

principles of deference embodied by §§ 2254(d)(2) and (e)(1), this case warrants the same result.

This result makes sense, moreover, given the nature of the burdens imposed by AEDPA.

Again, under §§ 2254(d)(2) and (e)(1), this court must defer to the state trial court’s finding that

Mr. Kovatch was biased. See Burt, 134 S. Ct. at 15. And, again, “a state-court factual

determination is not unreasonable merely because the federal habeas court would have reached a

different conclusion in the first instance.” Wood, 558 U.S. at 301. In other words, if reasonable

No. 11-5707 Wheeler v. Simpson Page 20

minds could differ about the correctness of the state trial court’s fact-finding, its factual

determinations are not unreasonable under § 2254(d)(2). Here, reasonable minds could readily

differ because Mr. Kovatch equivocated in his answers about his ability to apply the death

penalty.

Petitioner also claims he is entitled to relief under § 2254(d)(2) for a reason left

unaddressed by the majority: that because a video record of the trial exists in this case, deference

to the trial court is improper, and we may review de novo the facts surrounding Mr. Kovatch’s

selection. This novel argument is meritless. First, petitioner cites no authority for the

proposition that AEDPA deference is not warranted where there is a video record of trial, and it

is well-settled that “conclusory argument[s]” made “without any further discussion or citation to

authority . . . [are] waived on appeal.” Gen. Star Nat’l Ins. Co. v. Administratia Asigurarilor de

Stat, 289 F.3d 434, 441 (6th Cir. 2002) (citation omitted). Second, and critically, petitioner’s

argument is essentially an argument that we ignore the express will of Congress, which twice in

AEDPA explicitly codified the deference owed to trial courts’ findings of fact. See 28 U.S.C.

§§ 2254(d)(2), (e)(1). The Supreme Court has recognized as much, explaining that AEDPA

“provide[s] . . . binding[] directions to accord deference.” Uttecht v. Brown, 551 U.S. 1, 10

(2007). Neither the Supreme Court nor Congress has provided an exception to AEDPA’s factual

deference for cases in which a video record of the trial exists.

For these reasons, I would deny petitioner’s claim that he is entitled to habeas relief under

§ 2254(d)(2).

B.

Next, petitioner Wheeler claims that he is entitled to habeas relief under § 2254(d)(1)

because Mr. Kovatch’s dismissal was “contrary to, or involved an unreasonable application of,

clearly established federal law.” Unlike the majority opinion, I conclude that petitioner is not

entitled to habeas relief on this claim.

For-cause dismissals in death penalty cases are governed principally by Wainwright v.

Witt, 469 U.S. 412 (1985). Witt held that the standard for such dismissals is “whether the juror’s

views would prevent or substantially impair the performance of his duties as a juror in

No. 11-5707 Wheeler v. Simpson Page 21

accordance with his instructions and his oath.” Id. at 424 (citation and quotation marks omitted).

The juror’s impartiality need not be demonstrated with “unmistakable clarity” as “determinations

of juror bias cannot be reduced to question-and-answer sessions which obtain results in the

manner of a catechism.” Witt, 469 U.S. at 424. Accordingly, “there will be situations where the

trial judge is left with the definite impression that a prospective juror would be unable to

faithfully and impartially apply the law,” despite a “lack of clarity” to this effect in the record.

Id. at 425–26.

For precisely this reason, the Supreme Court held in Uttecht—the most recent case to

address the issue of prospective juror dismissals—that deference to the trial court’s

determinations is required on habeas review in such cases. The Court explained that “[c]ourts

reviewing claims of Witherspoon–Witt error . . . especially federal courts considering habeas

petitions, owe deference to the trial court, which is in a superior position to determine the

demeanor and qualifications of a potential juror.” Uttecht, 551 U.S. at 22. Indeed, the trial court

not only has an opportunity to “assess the demeanor of the venire and the individuals who

compose it,” which is of “critical importance in assessing the attitude and qualifications of

potential jurors,” it is also uniquely situated to assess “nonverbal communication” occurring in

the courtroom, Id. at 9–10, and to make credibility determinations that appellate courts cannot.

See United States v. Gabrion, 719 F.3d 511, 527 (6th Cir. 2013) (en banc), cert. denied, 134 S.

Ct. 1934 (2014).

Thus, “the question [for a federal court on habeas review] is not whether [the] reviewing

court might disagree with the trial court’s findings, but whether those findings are supported by

the record.” Witt, 469 U.S. at 434 (emphasis added). Because of the deference to which a trial

court’s finding is entitled, when there is “ambiguity” in the record as to a juror’s response to voir

dire questioning, “the trial court . . . [is] entitled to resolve [that ambiguity] in favor of the State.”

Id.; see also Uttecht, 551 U.S. at 7.

The majority opinion ignores these principles by asking not whether there is evidence in

the record to support the trial judge’s finding of substantial impairment1—which is what AEDPA

1

Petitioner asserts that the trial court did not apply Witt’s substantial impairment standard when dismissing

Mr. Kovatch, and at oral argument noted that Kentucky’s standard for juror dismissal does not track precisely with

Witt. This is not a basis for relief. Ultimately, the trial court dismissed Mr. Kovatch because he equivocated in his

No. 11-5707 Wheeler v. Simpson Page 22

requires—but instead whether, in its judgment, the court “properly processed [the] exchange”

between Mr. Kovatch and the prosecutor. The proper inquiry is whether the state court’s finding

of substantial impairment is supported by the record, irrespective of whether we would reach a

different result. Witt, 469 U.S. at 434.

Here, there is support in the record for the trial court’s ruling. As previously detailed,

Mr. Kovatch gave equivocal answers to questions about whether he could apply the death

penalty. Contrary to the majority opinion’s summary of the transcript, the evidence for Mr.

Kovatch’s equivocation is not derived from a “single question and answer exchange with the

prosecutor.” Quite the opposite: Mr. Kovatch agreed he was not “absolutely certain” whether he

could apply the death penalty in response to a question from the prosecutor. But, during an

interchange with petitioner’s trial counsel, Mr. Kovatch expressed doubts about “whether or not

we have the right to take [a] life.” Even petitioner’s trial counsel acknowledged that Mr.

Kovatch had equivocated in his responses when counsel opposed the prosecution’s motion to

have Mr. Kovatch struck for cause. In light of the fact that the trial court was entitled to resolve

Mr. Kovatch’s equivocation in favor of dismissal for cause, see id., the grant of the petition for

habeas corpus cannot be reconciled with AEDPA’s requirement that a petitioner establish that

the trial court’s decision was “so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for fairminded disagreement.” White,

134 S. Ct. at 1702.

The majority opinion also relies on Gray v. Mississippi, 481 U.S. 648 (1986), for the

proposition that the erroneous dismissal of a prospective juror in a death penalty case is a

structural error not subject to harmless error review. Because I conclude that Mr. Kovatch’s

dismissal was not erroneous, I would not reach this issue. However, because the majority raises

the issue, I briefly note my disagreement with its analysis.

The majority opinion’s reliance on Gray is misplaced in light of Uttecht, which resolves

the issue for the present case. The Supreme Court noted in Uttecht that Gray “represents a rare

answers regarding whether he could fairly apply the death penalty; this bias finding is a finding of substantial

impairment under Witt, even if the trial court did not precisely quote Witt’s language. See Witt, 469 U.S. at 425–26

(noting that there will be situations where a trial court is left with a definite impression that a juror is biased, despite

a “lack of clarity” to that end in the record, and deference is appropriate in those situations).

No. 11-5707 Wheeler v. Simpson Page 23

case” because “in the typical situation there will be a state-court finding of substantial

impairment; in Gray, the state courts had found the opposite.” Uttecht, 551 U.S. at 9. Thus,

Uttecht held, Gray “is of limited significance to the instant case” and others in which there has

been a state-court finding of substantial impairment requiring deference under AEDPA. Id.

In Gray, the trial judge realized during the course of voir dire that he had mistakenly

overruled a number of the prosecutor’s challenges for cause for prospective jurors who were

excludable under Witherspoon, the prevailing standard at the time. Gray, 481 U.S. at 651–66.

The fact that the trial judge erred in failing to dismiss the excludable jurors for cause forced the

prosecution to use all of its peremptory challenges. Consequently, the prosecution asked for a

dismissal of an additional prospective juror who had said she could “reach either a guilty or not

guilty verdict and that she could impose the death penalty if the verdict were guilty.” Id. at 654.

The trial judge made no finding that the prospective juror was excludable and dismissed her as “a

sort of ‘make-up’ for the challenges for cause the trial judge wrongfully denied.” David

McCord, Is Death “Different” for Purposes of Harmless Error Analysis? Should It Be?: An

Assessment of United States and Louisiana Supreme Court Case Law, 59 La. L. Rev. 1105, 1138

(1999). No such circumstance exists here. Here, the trial judge found that Mr. Kovatch was

impermissibly biased because he “expressed . . . concerns about considering” the death penalty

as a sentencing option. Thus, as in Uttecht, Gray is of “limited significance”2 in this case

because, unlike in Gray, the trial court found Mr. Kovatch was substantially impaired. Under

2

The majority opinion also paints an incomplete picture of the Supreme Court’s harmless error doctrine in

this context by failing to mention Ross v. Oklahoma, 487 U.S. 81 (1988). Ross, decided only a year after Gray, cast

doubt on Gray’s sweeping rationale. The Ross court noted that

the statement that any error which affects the composition of the jury must result in reversal defies

literal application. If, after realizing its error, the trial court in Gray had dismissed the entire

venire and started anew, the composition of the jury would undoubtedly have been affected by the

original error. But the Gray majority concedes that the trial court could have followed that course

without risking reversal.

Id. at 87 n.2. Indeed, there is reason to believe that

the Ross Court largely overruled [Gray] by shifting the focus from the possible effect on the

composition of the jury panel as a whole to the very narrow-and unlikely-to-arise-right of the

defendant to not have a death-qualified juror disqualified when it is clear that juror would have

been impaneled because the prosecution was fresh out of peremptory challenges.

McCord, 59 La. L. Rev. at 1138. The ultimate issue is “whether the constitutional focus should be, as in Gray, on

the composition of the jury panel as a whole, or as in Ross, on whether the jurors who were impaneled were

qualified to sit.” Id. And, because a qualified juror’s exclusion from the venire tells us nothing about the

qualifications of the jurors ultimately impaneled, “it seems hard to say that a defendant’s death sentence is faulty

when it was rendered by properly qualified jurors.” Id. In any event, as noted above, Uttecht resolves the issue in

this case.

No. 11-5707 Wheeler v. Simpson Page 24

AEDPA, this court is required to defer to the state court’s ruling unless it violated §§ 2254(d)(1)

or (d)(2). And, for the reasons I outline above, it did not.

III.

Next, Wheeler appeals the trial court’s admission of evidence that Warfield was pregnant

at the time she was killed. On direct appeal in the state appellate courts, petitioner framed this

issue primarily as a violation of Kentucky state law—petitioner argued that the admission of this

evidence violated Kentucky Rule of Evidence 404(b); Sections 2 and 11 of the Kentucky

Constitution, which provide for a right to a fair trial; and the Fourteenth Amendment of the

Federal Constitution. The Kentucky Supreme Court concluded that the admission of the

evidence was proper under Kentucky law and that “[t]he pregnancy of the female victim was not

sensational or shocking or prejudicial or likely to induce any undue sympathy. The brief

reference to her pregnancy was fair comment to explain her identity. It did not deprive

[petitioner] of a fair trial.” Wheeler v. Commonwealth, 121 S.W.3d 173, 181 (Ky. 2003) (citation

omitted).

“In conducting habeas review, a federal court is limited to deciding whether a conviction

violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S.

62, 68 (1991). “[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions.” Id. at 67–68. Thus, “errors in application of state law,

especially with regard to the admissibility of evidence, are usually not cognizable in federal

habeas corpus.” Bey v. Bagley, 500 F.3d 514, 519 (6th Cir. 2007) (citation and quotation marks

omitted). Thus, to the extent that petitioner claims that the admission of evidence related to

Warfield’s pregnancy contravened Kentucky’s laws or it rules of evidence, those claims are not

cognizable on federal habeas corpus review.

However, where, as here, a habeas petitioner argues that the allegedly improper

admission of evidence “was so prejudicial that its admission . . . rendered his entire trial

fundamentally unfair” under the Federal Constitution, we may address the claim as a federal due

process claim where the state court’s “prejudice inquiry . . . bears at least ‘some similarity’ to a

determination” of the due process claim he raises in his habeas petition. Id. at 519–20 (quoting

Maldonado v. Wilson, 416 F.3d 470, 474 (6th Cir. 2005)). Here, petitioner’s due process claim

No. 11-5707 Wheeler v. Simpson Page 25

bears “some similarity” to the state-law claim decided by the Kentucky Supreme Court.

Compare Petitioner’s Br. at 38–50, with Wheeler, 121 S.W.3d at 181. Accordingly, as in Bey, I

review this claim under a “modified AEDPA standard, which requires us to conduct a careful

review of the record and applicable law, but nonetheless bars us from reversing unless the state

court’s decision is contrary to or an unreasonable application of federal law, i.e., Supreme Court

precedent.” Bey, 500 F.3d at 520 (citation, quotation marks, and alterations omitted). And,

because the Kentucky Supreme Court’s “prejudice inquiry relied entirely on [Kentucky] law

without any reference to federal law,” this court “need not consider whether that decision

resulted in an unreasonable application of federal law.” Bey, 500 F.3d at 520. Rather, “[w]e

need only look to the question of whether the [Kentucky] Supreme Court’s decision is contrary

to federal law.” Id.

With this framework in mind, I turn to the evidence of Warfield’s pregnancy. During

pre-trial proceedings, petitioner’s trial counsel moved to exclude evidence of Warfield’s

pregnancy as irrelevant under Kentucky Evidence Rule 401. In opposition, the prosecutor

argued that the evidence should be admitted because it humanized the victim. Relying upon

Sanborn v. Commonwealth, 754 S.W.2d 534, 542 (Ky. 1988), and McQueen v. Commonwealth,

669 S.W.2d 519 (Ky. 1984), the trial court overruled petitioner’s trial counsel’s motion, but

instructed the parties that the evidence should not be “unduly emphasized” or used as a basis for

argument. Petitioner’s trial counsel asked the court to reconsider its ruling out of concern that a

juror may have an emotional response to the evidence and subsequently consider the crime a

triple homicide rather than a double homicide. The trial court re-affirmed its ruling.

At trial, during the prosecution’s case-in-chief, the first reference to Warfield’s

pregnancy occurred during testimony by an assistant medical examiner for the Commonwealth

of Kentucky, Amy Burrows, M.D., who performed the autopsy. Dr. Burrows testified that she

discovered Warfield’s pregnancy during the autopsy when she saw a “small embryo in an – in a

little sac with a placenta.” The trial court overruled petitioner’s trial counsel’s objection to that

testimony.

No. 11-5707 Wheeler v. Simpson Page 26

A second reference to Warfield’s pregnancy occurred at the close of the evidence for the

guilt phase. In its closing argument, the prosecutor referred to Warfield’s pregnancy in an effort

to humanize her to the jury:

And what about Nairobi? They didn’t find drugs in her system. Nobody has ever

said she was a drug dealer. What about her? What about her life? Autopsy told

you (inaudible) she didn’t have any alcohol in there. There’s no drugs. She was

pregnant. I mean, she’s a normal person. She just loved a guy named Nigel. He

loved her. They lived together in the west end, and they die[d] because of that.

And we’re supposed to believe that’s okay.

Petitioner’s trial counsel did not object.

Initially, petitioner argues that the above evidence was irrelevant because “[n]either

Warfield nor [petitioner] knew Warfield was pregnant” and submits case law from state courts in

Florida, Texas, Indiana, and Kansas in support of the proposition that where, as here, a victim is

not visibly pregnant, evidence of her pregnancy is not relevant in a homicide case. However, the

Kentucky Supreme Court, interpreting Kentucky law, has already held in this case that the

evidence was admissible and not prejudicial, particularly in light of the “brief” role it played in

the trial. See Wheeler, 121 S.W.3d at 181. And, in any event, these state-law decisions from

other states do not establish that the Kentucky Supreme Court’s decision in this case was

contrary to clearly established federal law.

Petitioner does rely on one federal case, however: White v. Thaler, 610 F.3d 890 (5th

Cir. 2010). There, a Texas state jury convicted the petitioner, Wendell White, of the aggravated

murder of Latasha Vasquez and the aggravated assault of Tracey Johnson after running over each

of them with a pickup truck. Id. at 892. On appeal, White alleged, among other things, that trial

counsel was ineffective for failing to object to the introduction of evidence of Vasquez’s

pregnancy. Id. at 894. The Texas Court of Criminal Appeals (TCCA) and the federal district

court rejected this claim. Id. at 894–95. The Fifth Circuit disagreed with the state and federal

district courts, concluding that trial counsel’s failure to object to such evidence constituted

deficient performance because the evidence had “no probative value,” Texas state law did not

support the admission of the evidence, and trial counsel indicated that no strategy gave rise to

their decision. Id. at 907–09. The Fifth Circuit determined that White suffered prejudice as a

result because “the evidence that White intended to kill Vasquez pales in comparison to the

No. 11-5707 Wheeler v. Simpson Page 27

evidence that White intended to run over Johnson.” Id. at 912. The court further explained that

the record belied the TCCA’s characterization of the references to Vasquez’s pregnancy as

“brief,” explaining:

We do not necessarily agree with the TCCA’s assessment that the testimony and

argument with respect to the victim’s pregnancy was “brief.” Defense counsel

brought up the victim’s pregnancy twice during the direct examination of White

and three times during closing argument. The prosecutor asked two questions

regarding the fetus and referred to the unborn child twice during closing

argument. In total, the jury was reminded nine times during the guilt-innocence

phase that Vasquez’s unborn child died as a result of White’s actions. Further, the

prosecutor’s closing argument regarding the unborn child being killed as the

victim was “dragged” and “crushed” by the truck was likely to appeal to the jury’s

emotions and encourage the jury to make its guilt-innocence decision on an

emotional basis.

Id. at 911–12.

White does not entitle petitioner to habeas relief. As an initial matter, even if I were to

conclude that the Kentucky Supreme Court’s decision in this case was “contrary to” White, that

case is not a Supreme Court precedent—thus, petitioner could still not establish that the

Kentucky Supreme Court’s decision was “contrary to [clearly established] federal law.” Bey,

500 F.3d at 520; see also 28 U.S.C. § 2254(d)(1).

Regardless, White is distinguishable. Unlike petitioner, White raised a federal

constitutional claim that is cognizable on habeas review—the ineffective assistance of counsel.

Our review of petitioner’s claim is far more circumscribed than was the Fifth Circuit’s of

White’s claim. Because petitioner raises a due process claim, this court may only grant relief if

the admission of the evidence of Warfield’s pregnancy was “so prejudicial that it violated

[petitioner’s] right to a fundamentally fair trial.” Pudelski v. Wilson, 576 F.3d 595, 613 (6th Cir.

2009). Petitioner’s trial was not fundamentally unfair. Unlike in White, the trial court in the

instant case limited the references to Warfield’s pregnancy, which was mentioned twice during a

trial that lasted several weeks, and no reference was made to any harm suffered by the embryo.

Further, prosecutors presented substantial evidence of petitioner’s guilt, which

included—unlike in White—substantial evidence of his intent to commit the crimes. Malone was

stabbed nine times. The fatal wound was the one that punctured his heart. Warfield was

No. 11-5707 Wheeler v. Simpson Page 28

strangled to death. Petitioner testified that when he arrived at the apartment he saw Malone

“laying face down by the back door in a pool of blood” and that he did not know Warfield was

there. However, expert testimony established that blood found on Warfield’s thigh matched

petitioner’s DNA. According to petitioner, a masked assailant armed with a knife was the real

killer, and petitioner fought with him at the apartment, suffering wounds on his hands and arms

as a result. Petitioner testified that he did not go to the police due to his crack cocaine use. But,

petitioner testified, following what he allegedly witnessed at the apartment, he bought band-aids,

went to his mother’s house, visited friends, bought beer, and visited other friends to smoke crack.

“Intent to kill can be inferred from the extent and character of a victim’s injuries,” and “because

a person is presumed to intend the logical and probable consequences of his conduct, a person’s

state of mind may be inferred from actions preceding and following the charged offense.”

Hudson v. Commonwealth, 979 S.W.2d 106, 110 (Ky. 1998) (citation and quotation marks

omitted). Here, the brutality of the injuries and Wheeler’s conduct immediately after the crime,

as well as his failure to truthfully answer police inquiries, constitute significant evidence of his

guilt.

Additionally, petitioner notes that his case and one Kentucky Supreme Court Justice’s

dissent on the issue of Warfield’s pregnancy in his direct appeal became a topic of discussion in

the electoral race for the Kentucky Supreme Court years after the issuance of the Kentucky

Supreme Court’s decision. This argument, perhaps obviously, is unpersuasive. Putting aside the

fact that what happened in an election three years after petitioner’s direct appeal has no bearing

on what happened at his trial—and thus, could not have been a source of prejudice at that trial—

this argument has nothing whatsoever to do with federal law.

In short, petitioner has failed to persuade me that the admission of evidence related to

Warfield’s pregnancy rendered his trial fundamentally unfair. Accordingly, no habeas relief is

appropriate on this claim.

IV.

Next, petitioner argues that the trial court improperly admitted evidence as to the

availability in the future of prison furloughs. Specifically, petitioner argues that, through this

evidence, the jury was led to believe that “unless [it] imposed a sentence of death, [petitioner]

No. 11-5707 Wheeler v. Simpson Page 29

might one day be released into the community on furloughs,” which petitioner argues was

“irrelevant speculation that unfairly tilted the evidence in favor of a death sentence in violation

of [his] constitutional right to a reliable capital sentencing determination.”

This court may only review claims that have not been procedurally defaulted.

A habeas petitioner procedurally defaults a claim if: (1) the petitioner fails to

comply with a state procedural rule; (2) the state courts enforce the rule; (3) the

state procedural rule is an adequate and independent state ground for denying

review of a federal constitutional claim; and (4) the petitioner cannot show cause

and prejudice excusing the default.

Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010) (citation and internal quotation marks

omitted).

This claim is procedurally defaulted. Petitioner acknowledges that he failed to raise this

claim on direct appeal, raising it for the first time in his state post-conviction proceeding. Thus,

petitioner “fail[ed] to comply with [Kentucky’s] procedural rule[,]” id., namely that a post-

conviction proceeding is not the place for a “convicted defendant to retry issues which could and

should have been raised in the original proceeding, nor those that were raised in the trial court

and upon an appeal considered by [the Kentucky Supreme Court].” Thacker v. Commonwealth,

476 S.W.2d 838, 839 (Ky. 1972). Consistent with this rule, on his state post-conviction appeal,

the Kentucky Supreme Court “enforce[d] the rule[,]” Guilmette, 624 F.3d at 290, when it

declined to review the merits of this claim. Wheeler, 2008 WL 5051579, at *9 (“If Appellant

wanted to challenge the [furlough] evidence presented at trial, he should have done so in his

direct appeal, not by means of a [post-conviction collateral proceeding].”). This is an

independent and adequate state ground for denying review. See Lucas v. O’Dea, 179 F.3d 412,

418 (6th Cir. 1999). Nor has petitioner demonstrated cause and prejudice to excuse this default.

Although petitioner asserted in the district court that his direct-appeal counsel’s failure to raise

this issue amounted to cause and prejudice to excuse the default, he does not do so in this court.

Accordingly, petitioner has abandoned his argument that cause and prejudice exist to overcome

the procedural bar. See Post, 621 F.3d at 427.

No. 11-5707 Wheeler v. Simpson Page 30

V.

Petitioner next raises another claim related to evidence of furloughs. Specifically, he

claims that his trial counsel was ineffective for introducing testimony that he had received

furloughs during his previous incarceration. Petitioner argues that this testimony “suggest[ed] to

the jury, and open[ed] the door for the jury to conclude . . . [that] the defendant could receive a

furlough during which he could commit another violent crime” and “opened the door for the

prosecution to utilize the furlough evidence to prejudice the jury, to play up [petitioner’s] violent

criminal history and failure to learn a lesson in prison, and to let the jury know it was possible

[petitioner] could receive a furlough if sentenced to less than death.”

The general standards governing a claim of ineffective assistance of counsel are set forth

in Strickland v. Washington, 466 U.S. 668 (1984). To demonstrate ineffective assistance of

counsel, “[a] petitioner must show that counsel’s performance was deficient, and that the

deficiency prejudiced the defense.” Wiggins, 539 U.S. at 521 (citing Strickland, 466 U.S. at

687)).

In the context of a death sentence, the question of prejudice turns on “whether

there is a reasonable probability that, absent the errors, the sentencer—including

an appellate court, to the extent it independently reweighs the evidence—would

conclude that the balance of aggravating and mitigating circumstances did not

warrant death.”

Hill v. Mitchell, 400 F.3d 308, 314 (6th Cir. 2005) (quoting Strickland, 466 U.S. at 695). “When

§ 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is

whether there is any reasonable argument that counsel satisfied Strickland’s deferential

standard.” Harrington v. Richter, 131 S. Ct. 770, 788 (2011). I conclude that petitioner has not

shown that his counsel’s conduct with regard to the furlough testimony was contrary to, or an

unreasonable application of, Strickland.

At the penalty phase, petitioner’s counsel introduced a variety of evidence intended to

establish that petitioner had been a model prisoner during previous incarcerations, including

evidence of furloughs. For example, petitioner’s trial counsel introduced the testimony of

Michael Cooper, an employee at the Luther Luckett Correctional Complex where petitioner had

served a prior incarceration. Cooper testified that petitioner worked for him as a janitor in the

No. 11-5707 Wheeler v. Simpson Page 31

Property Room and exhibited a “good work ethic” and required “very, very little supervision.”

Cooper testified he was not aware of any disciplinary action ever being taken against petitioner.

According to Cooper, petitioner received two furloughs while incarcerated. Cooper added that

he did not know whether prisons still offered furloughs, but did know that none had been granted

“for several years” and noted that such a grant was “extremely rare.”

Petitioner’s counsel also introduced the testimony of Robin Rawlings, who had recently

worked as a Classification and Treatment Officer with the Department of Corrections and as a

Probation and Parole Officer with the Commonwealth’s Department of Justice. Rawlings

testified that, as an inmate, petitioner worked as a janitor in the administration building, which

included the offices for the prison warden and the deputy warden. Rawlings indicated that she

spoke with petitioner every day, and she was not aware of any complaints, conflicts, or problems

from either the staff or other inmates regarding him. Rawlings also worked with petitioner

within a small group setting to assist inmates with their chemical dependency issues. Prison life

is “very regulated and dictated by rules[,]” according to Rawlings, and petitioner was a “model

inmate.”

Rawlings was also queried about furloughs. To that end, Rawlings testified that, based

on the policy in place at the time she was employed at the prison, she was “positive” that

petitioner would not be eligible for a furlough given his two murder convictions. On cross-

examination, the prosecutor also asked Rawlings about furloughs:

[PROSECUTOR]: Um, Ms. Rawlings, uh, as far as furloughs are concerned,

there was a time when individuals who were convicted of murder were granted

furloughs, is that correct?

ROBIN RAWLINGS: Yes, sir, that’s true.

[PROSECUTOR]: Okay, and they changed the policy at some point, right?

ROBIN RAWLINGS: Yes, they did.

[PROSECUTOR]: Okay, and you can’t, uh, tell this jury what the policy is going

to be in the future, 20, 30 years? You don’t know that, do you?

ROBIN RAWLINGS: That’s true, sir.

[PROSECUTOR]: Okay, policies change?

ROBIN RAWLINGS: Yes, they do.

No. 11-5707 Wheeler v. Simpson Page 32

The record indicates that, when introducing testimony about petitioner’s prior furloughs,

petitioner’s trial counsel was attempting to obtain a sentence other than death for petitioner. For

example, during closing arguments, petitioner’s trial counsel stated:

We’re not saying that these people did not suffer or that their families do not

continue to suffer. We are telling you that the death penalty is not your only

option. If you find the mitigation, if you find any redeeming qualities, and there

are some there, you should give him his life.

Testimony by Cooper and Rawlings showed that Wheeler worked well within the structured

environment of prison during the time of his previous incarceration. Wheeler had already

admitted to being a convicted felon during his guilt-phase testimony. At the penalty phase, the

prosecution introduced evidence that petitioner pleaded guilty to ten counts of robbery on

November 20, 1991, for which he was sentenced to twenty years of imprisonment, and that, later,

on August 13, 1998, petitioner was convicted for illegal possession of a controlled substance

(cocaine), for which he received a sentence of one year.

In the context of this record, petitioner’s counsel argued that petitioner suffered from a

drug addiction but could otherwise thrive within the structured environment of prison life:

When you think of these offenses, I would think of someone who’s been in

trouble all their lives, who’s never been responsible, who’s never been stable,

who could never hold a job, who could never find someone to love him or care

about him. But that’s not what we found here in the case of Roger Wheeler. We

have found someone who has been, at one time, responsible and capable and

stable and able to work and able to contribute, and I think he can still contribute in

the penitentiary.

Based on this record, I conclude that petitioner is not entitled to relief on this claim. A

petitioner has a constitutional right to present testimony during the penalty phase about his good

behavior while incarcerated. See Skipper v. South Carolina, 476 U.S. 1, 4 (1986). That is what

petitioner’s trial counsel did. The inclusion of the furlough testimony simply emphasized the

benefit that petitioner derived from incarceration. It also showed the trust he had earned with

prison officials. Moreover, our precedent buttresses my conclusion. In Campbell v. Bradshaw,

674 F.3d 578, 588 (6th Cir. 2012), this court concluded that trial counsel was not ineffective for

introducing the petitioner’s entire incarceration record during the penalty phase of trial because it

was “part of a strategic effort to be candid with the jury about Campbell’s past in an effort to

No. 11-5707 Wheeler v. Simpson Page 33

gain credibility and, ultimately, obtain a life sentence for Campbell.” No prejudice resulted in

that case because a mental health expert addressed the same information and the jury heard much

of the negative information from other sources. Id. at 589. The same thing occurred here and

thus the same result is warranted. Notwithstanding the furlough testimony, the jury was aware

that petitioner had served only a fraction of his twenty-year sentence from his prior convictions.

VI.

Petitioner raises yet another ineffective assistance of counsel claim related to the furlough

testimony. Specifically, petitioner argues that his counsel was constitutionally defective for

failing to object when the prosecutor cross-examined Rawlings about the potential availability of

future furloughs and when the prosecutor raised the furloughs issue in closing arguments.

I disagree.

Initially, as for his claim regarding his counsel’s failure to object at oral argument,

petitioner has procedurally defaulted this claim. Petitioner did not raise this claim in state court.

Under Kentucky’s rules of criminal procedure, petitioner had three years “after the judgment

[became] final” to raise this issue. Roach v. Commonwealth, 384 S.W.3d 131, 135 (Ky. 2012).

That time has now passed. Thus, petitioner has failed to comply with a state procedural rule, and

that rule is an independent and adequate state ground for denying review of this claim. See

Guilmette, 624 F.3d at 290; see also Lucas, 179 F.3d at 418. Accordingly, petitioner has

procedurally defaulted this claim. See Lovins v. Parker, 712 F.3d 283, 293 (6th Cir. 2013) (“[A]

claim is procedurally defaulted where the petitioner failed to exhaust state court remedies, and

the remedies are no longer available at the time the federal petition is filed because of a state

procedural rule.”).

Nor is habeas relief appropriate on petitioner’s claim regarding his counsel’s failure to

object during Rawlings’ cross-examination. This claim is not procedurally defaulted, as

petitioner raised it in his state post-conviction relief proceedings. However, petitioner cannot

show deficient performance or prejudice arising from his trial counsel’s failure to object to the

prosecution’s cross-examination of Rawlings. As the Kentucky Supreme Court noted, the

information contained within that testimony was accurate and not misleading. Wheeler,

2008 WL 5051579, at *10. Petitioner’s concern about the speculative nature of Rawlings’

No. 11-5707 Wheeler v. Simpson Page 34

testimony is also unavailing. In California v. Ramos, 463 U.S. 992, 1004 (1983), the Supreme

Court rejected a similar argument—that a jury should not be instructed that a governor has the

power to commute a sentence of life without parole as speculative and misleading—because the

instruction in question “gives the jury accurate information of which both the defendant and his

counsel are aware, and it does not preclude the defendant from offering any evidence or

argument regarding the Governor’s power to commute a life sentence.” The same is true here.

VII.

Petitioner also claims his counsel was ineffective for failing to: (1) elicit from petitioner

that his shoe size was larger than that of the bloody footprint found at the crime scene by the

police; (2) elicit from petitioner that he possessed the shoes that he wore on the night of the

murders; and (3) retain a shoe expert. I address each part of this claim in turn, ultimately

concluding that none entitles him to habeas relief.

Initially, I conclude that petitioner has procedurally defaulted his claim that his counsel

should have elicited testimony from him about his shoe size. Petitioner did not present this claim

to the state courts and no state remedy now exists for doing so. See Lovins, 712 F.3d at 293;

Guilmette, 624 F.3d at 290; Lucas, 179 F.3d at 418. And, petitioner does not attempt to show

cause and prejudice to cure the default.

Nor is relief proper as to the other two parts of this claim. During his guilt-phase direct

testimony, petitioner recounted the day of his arrest, indicating that he was wearing “shower

shoes.” The prosecutor then objected. At sidebar, the prosecutor noted that petitioner’s trial

counsel had indicated that they had a pair of petitioner’s tennis shoes in their possession; the

prosecutor objected to the admission of the shoes because no chain of custody had been

established and the shoes had been unaccounted for since the day of petitioner’s arrest, more than

three years prior to trial. The trial court sustained the objection. Following the conclusion of

petitioner’s testimony, petitioner’s trial counsel offered petitioner’s testimony concerning the

tennis shoes by avowal. Petitioner explained that he changed from flip-flops to tennis shoes

when the police arrived at his mother’s home to arrest him; the tennis shoes were located in his

bedroom. Petitioner testified that the tennis shoes had been in his possession as part of his

personal property at the jail for all that time.

No. 11-5707 Wheeler v. Simpson Page 35

Petitioner argues that his trial counsel’s failure to ask Wheeler whether he wore the tennis

shoes on the night of the murders resulted in prejudice because “[t]he jury had to decide whether

to believe [petitioner’s] version of events surrounding the murders based solely on his testimony,

which was inconsistent with what he told police in his pretrial statements,” arguing that the

admission of the shoes would have served as “concrete corroboration” of his testimony and

“would have greatly enhanced his credibility.” However, petitioner omits one critical point:

without knowing Warfield’s and Malone’s shoe sizes to exclude the possibility that the bloody

footprint belonged to one of them, he cannot demonstrate prejudice. And, as the magistrate

judge and the district court noted, petitioner did not suffer prejudice given his lack of credibility

because his “blood was found throughout the apartment including the very bedroom where

[Warfield’s] body was discovered. He repeatedly lied about his presence there to the police. He

and his friend attempted to encourage perjury from another witness, Tracy Warrick, about the

source of [petitioner’s] knife wound on his left forearm.”

As for petitioner’s claim regarding his counsel’s failure to call a shoe expert, I note that,

in his state post-conviction proceeding, petitioner asserted that “[n]o expert testimony would be

required for the jurors to compare the shoes with the shoe prints at the scene. A layperson could

determine this fact.” Wheeler, 2008 WL 5051579, at *6. The Kentucky Supreme Court

considered this admission “tantamount to a concession that lack of an expert was not ineffective

assistance.” Id. I agree. Moreover, petitioner did not even make his own counsel aware of the

alleged shoe size discrepancy until the middle of trial, when his trial counsel had no reasonable

opportunity to retain such an expert on short notice. In light of these facts, I cannot conclude that

the Kentucky Supreme Court unreasonably applied Strickland by determining that petitioner was

not prejudiced by the lack of a shoe expert.

VIII.

Next, petitioner claims his trial counsel was ineffective for failing to call a witness, Earl

Ricketts, Jr., to contradict the testimony of a prosecution witness, Denise Mumpfort. I disagree.

Mumpfort was an employee of the B-Line convenience store in October 1997, near the

apartment building where the murders occurred. She testified that she worked from 10 p.m. on

October 1 to 6 a.m. the following day. Mumpfort testified that she knew who petitioner was

No. 11-5707 Wheeler v. Simpson Page 36

“[b]y friends and coming in the store” on previous occasions. Addressing the night of the

murders, the following exchange occurred between the prosecutor and Mumpfort:

DENISE MUMPFORT: The night he came in the store, he came up to the

counter, and I had asked him what had happened to him.

[PROSECUTOR]: Why did you ask him that?

DENISE MUMPFORT: Because he had blood on his head and had like finger

cuts, looked like paper cuts on fingers.

ALEX DATHORNE: Okay, with blood on his head and finger - and cuts on his

fingers?

DENISE MUMPFORT: Yes.

[PROSECUTOR]: Okay, and did he have any blood on his clothes?

DENISE MUMPFORT: Yes, on his jacket.

[PROSECUTOR]: And you asked him what had happened. What did he say?

DENISE MUMPFORT: He said his little girl hit him in the head with something.

Later, the two discussed the amount of blood that Mumpfort had observed on petitioner:

[PROSECUTOR]: Okay. Do you remember whether there was a lot of blood or

a little bit of blood, or what was it, if you remember?

DENISE MUMPFORT: Hmm, it just looked like somebody just, you know,

poured it on his head.

[PROSECUTOR]: So he had a lot of blood?

DENISE MUMPFORT: Sort of, on his head. Majority of it was on his head.

The police also interviewed Ricketts and prepared a report, which stated as follows:

Upon meeting with Mr. Earl Ricketts Jr. at the above location, it should be noted

that he is the security guard at this location. I showed Mr. Ricketts a photo pack

and he was unable to positively ID anyone.

He did state that a black male subject had come into the B-Line sometime after 1

a.m. on the night of the murders. He advised that this subject came in with blood

on [the] right side of his neck and his hands. The subject told Mr. Ricketts that he

was wrestling with his daughter and needed a band aid.

In support of his argument that his counsel should have called Ricketts, petitioner

provides an affidavit from Douglas Blair, an investigator employed by the Department of Public

Advocacy, who indicated that he had conducted a telephone interview with Ricketts, who told

No. 11-5707 Wheeler v. Simpson Page 37

him that “Wheeler did not appear to have blood poured over his head” and that Wheeler “only

had some blood on his collar and his hands.”

Petitioner can demonstrate neither deficient performance nor prejudice as a result of his

counsel’s failure to call Ricketts. See Otte v. Houk, 654 F.3d 594, 601–02 (6th Cir. 2011) (citing

Strickland, 466 U.S. at 687). As for Strickland’s deficient performance prong, petitioner argues

that Ricketts’ training as a security guard made him “uniquely credible” because he held a

“position of trust” in comparison to Mumpfort. To this end, petitioner relies on Workman v.

Tate, 957 F.2d 1339 (6th Cir. 1992). There, this court held that trial counsel was ineffective for

failing to interview and present the testimony of the only two witnesses to an arrest who could

have provided direct, contradictory evidence to that offered by the arresting police officers. Id.

at 1345–46. Those are not the facts here. Ricketts’ testimony would not have directly

contradicted Mumpfort’s in any material way. Both Ricketts’ and Mumpfort’s account of

petitioner on the night of the murder involved the presence of blood on petitioner’s person; the

only disagreement between their accounts is the amount. The presence of blood, rather than the

quantity of it, is the more important detail given petitioner’s testimony that he fought the alleged

assailant who was armed with a knife. Moreover, it is not a certainty that simply because

Ricketts held a purported “position of trust” that the jury would have believed him and not

Mumpfort. Thus, petitioner has failed to show that counsel was deficient for not calling Ricketts.

As for Strickland’s prejudice prong, petitioner cannot demonstrate prejudice because—as

discussed—there was substantial evidence of his guilt in any event. Accordingly, petitioner has

failed to establish that his trial counsel’s failure to call Ricketts resulted in a decision contrary to,

or an unreasonable application of, Strickland.

IX.

Petitioner also challenges the penalty-phase jury instructions, alleging that they violated

Mills v. Maryland, 486 U.S. 367 (1988), by improperly instructing jurors that they were required

to be unanimous regarding the presence of mitigating factors. I disagree.

“The Constitution forbids imposition of the death penalty if the sentencing judge or jury

is ‘precluded from considering, as a mitigating factor, any aspect of a defendant’s character or

record and any of the circumstances of the offense that the defendant proffers as a basis for a

No. 11-5707 Wheeler v. Simpson Page 38

sentence less than death.’” Henness v. Bagley, 644 F.3d 308, 328 (6th Cir. 2011) (quoting Smith

v. Spisak, 130 S. Ct. 676, 681–82 (2010)). “A challenge to a jury instruction is not to be viewed

in ‘artificial isolation,’ but rather must be considered within the context of the overall

instructions and trial record as a whole.” Hanna v. Ishee, 694 F.3d 596, 620–21 (6th Cir. 2012)

(citing Estelle, 502 U.S. at 72. “To warrant habeas relief, ‘jury instructions must not only have

been erroneous, but also, taken as a whole, so infirm that they rendered the entire trial

fundamentally unfair. The burden is even greater than that to demonstrate plain error on

appeal.’” Buell v. Mitchell, 274 F.3d 337, 355 (6th Cir. 2001) (quoting Scott v. Mitchell, 209

F.3d 854, 882 (6th Cir. 2000)).

Petitioner’s claim lacks merit. Essentially, petitioner’s argument is that because the

jurors were instructed that their verdict had to be unanimous, but the trial court was silent in

instructing them about unanimity as applied to mitigating factors, the jurors must have inferred

that their mitigating-factor determination must also be unanimous. However, “[i]n this Circuit,

failing to expressly state that mitigating factors need not be unanimously found does not

improperly imply that mitigating factors must be unanimously found.” Williams v. Anderson,

460 F.3d 789, 808 n.5 (6th Cir. 2006). Here, the trial court used the word “unanimous” only

once, to explain that the verdict must be so: “The verdict of the jury must be in writing, must be

unanimous, and must be signed by one of you as Foreperson.” The verdict form required only

that the jury find an aggravating circumstance to recommend the death sentence. Requiring a

unanimous verdict as to the sentence is not unconstitutional. See Moore v. Mitchell, 708 F.3d

760, 794 (6th Cir.), cert. denied, 134 S. Ct. 693 (2013). Unlike in Mills, the jury instructions

here did not, either explicitly or implicitly, require a unanimous finding of mitigating

circumstances. Accordingly, the trial court’s decision was not contrary to, or an unreasonable

application of, Mills.

X.

Petitioner next claims that several statements by the prosecutor amounted to misconduct;

he alleges that these statements denied him a fundamentally fair trial in violation of his

constitutional due process rights. I disagree.

No. 11-5707 Wheeler v. Simpson Page 39

A petitioner faces a high bar when bringing claims of prosecutorial misconduct. “For the

prosecutor’s misconduct to violate the defendant’s due process rights, it ‘is not enough that the

prosecutor’s remarks were undesirable or even universally condemned’; instead those comments

must ‘so infect[] the trial with unfairness as to make the resulting conviction a denial of due

process.’” Beuke v. Houk, 537 F.3d 618, 646 (6th Cir. 2008) (quoting Darden v. Wainwright,

477 U.S. 168, 181 (1986)). Indeed, “[t]he prosecution . . . has ‘wide latitude’ during closing

argument to respond to the defense’s strategies, evidence and arguments.” Bedford v. Collins,

567 F.3d 225, 233 (6th Cir. 2009) (quoting United States v. Henry, 545 F.3d 367, 377 (6th Cir.

2008)). I conclude that this latitude was properly exercised here. Accordingly, petitioner has not

established that the prosecutor’s statements resulted in a denial of due process that was contrary

to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1);

Beuke, 537 F.3d at 646.

Petitioner’s first claim of prosecutorial misconduct involves the prosecutor’s reference,

during closing arguments, to the defense theory of the case as a “trick.” The prosecutor stated:

“So [defense counsel] gets up and said, ‘Well, the shoeprint, that’s the most telling of all.’

Forget about all that DNA, forget about all the lies. It’s called the defense trick. Look away,

look away, look away. Don’t look at the facts.” Defense counsel objected, but the trial court

overruled the objection because the prosecutor was merely “commenting [that] this is

[petitioner’s] theory of the case.” I agree with the trial court—petitioner’s counsel did rely on

alleged inconsistencies in the shoeprint evidence. For example, petitioner’s counsel argued that,

because two shoeprints supposedly did not match, “[t]here were obviously two other people in

that home” when the murders occurred. Similarly, petitioner’s counsel asserted: “There had to

be more than one person. The shoeprint evidence tells you that. . . . Now if these shoeprints

would have fit those of [petitioner’s] you would have heard that evidence. Those aren’t

[petitioner’s] shoeprints.” Thus, it is clear that the prosecutor’s argument was in response to

petitioner’s counsel’s argument and was not improper. In any case, petitioner’s claim in this

regard does not show that he was denied due process. Beuke, 537 F.3d at 646.

Petitioner also claims that the prosecutor’s closing argument was constitutionally

improper because the prosecutor “fault[ed petitioner] for not presenting crucial evidence and

No. 11-5707 Wheeler v. Simpson Page 40

implying the evidence was inculpatory even though the evidence was not presented solely

because the prosecutor convinced the court to exclude it.” Specifically, petitioner refers to the

following portion of the prosecutor’s closing argument.

Shoeprint evidence: Ladies and gentlemen of the jury, this is why you find Roger

Wheeler not guilty, because they found a shoeprint in this house. Hardwood

floors, you got a shoeprint. . . . But you know what? We need a shoe to compare

it to. We don’t have that. If you remember, he says, “I had gray Nike Airs or

gray Nike tennis shoes, denim pants, and a black or dark sweatshirt on.” He

knows where his clothes are at. Mr. Cooperative never brought them in.

Petitioner’s counsel objected, arguing that the prosecutor’s comments shifted the burden to

petitioner to show he was innocent. The trial court ordered the prosecutor to move on, but

explained that “it’s fair for [the prosecutor] to comment on the fact that [defense counsel has]

focused greatly on the shoeprint” and noted that petitioner’s counsel had already described

petitioner as cooperative. As noted, petitioner’s counsel did mention shoeprint evidence, thus

opening the door for the prosecution to discuss that topic. Although petitioner’s counsel did not

specifically use the word “cooperative” to describe petitioner, petitioner was described as such in

other terms. Petitioner’s trial counsel, during closing argument, stated: “A guilty person would

not have offered his own biological samples. [Petitioner] knew that he did not kill those people.

[Petitioner] knew there was evidence of someone else, because he knew that someone else was

there.” The prosecutor’s comments were not improper because they were made in response to

petitioner’s counsel’s argument.

Next, petitioner claims that the prosecutor’s argument was constitutionally improper

because it “suggest[ed] the defense was responsible for a crucial witness[, Shannon Calloway,]

. . . not testifying, even though the prosecutor knew that witness had been killed before trial in an

unrelated incident.” During closing argument, the prosecutor argued:

But then you start hearing about this Shannon Calloway fellow. Now what about

Shannon Calloway? Let me ask you this, ladies and gentlemen of the jury. Aside

from the interview that Detective Sherrard, uh, took from Shannon Calloway the

day the bodies were discovered, when is the next time in this case you hear

Shannon Calloway’s name mentioned by this Defendant to any Detective in any

statement? You don’t hear about it until February of the year 2001. And you

want to know what? It’s kind of difficult in the middle of trial to stand up and run

No. 11-5707 Wheeler v. Simpson Page 41

out and find people that the Defense wants us to get up and start pointing fingers

at.

The record demonstrates, however, that petitioner’s trial counsel referred to Calloway multiple

times before the prosecutor did. Indeed, petitioner’s trial counsel suggested that Calloway may

have been the real murderer:

There’s Shannon Calloway there at the house with these two deceased

individuals, and they [the police] don’t even question or check his story out to see

if he did, in fact, go over there. You, you heard Tiffany Malone say she’s the one

that called the police. We haven’t heard any evidence that anyone else called the

police. I submit that Shannon Calloway missed something the night before when

he was at the apartment, and he went back there to finish what he missed.

***

Maybe they should have checked Shannon Calloway’s shoe size. Maybe they

should have compared Shannon Calloway’s shoes to what they’ve got here. I just

don’t see how, on October 3, that group of individuals that involved Shannon

Calloway . . . and some other people, how they would have known that Roger

Wheeler had a stab mark on him unless they had done it, or one of them had done

it.

Thus, it is clear from the record that the prosecutor’s comments were made in response to

petitioner’s trial counsel’s intimations that Calloway was the real murderer; accordingly, the

prosecutor’s comments were not improper.

Finally petitioner claims that the prosecutor made constitutionally impermissible

statements when referring to petitioner’s evidence of his struggles with substance abuse as

“excuses” and when the prosecutor allegedly offered his personal opinion about the case.

However, petitioner did not object to either of these statements at trial, as he was required to do

to preserve the issue for appeal pursuant to Kentucky Rule of Criminal Procedure 9.22.

Accordingly, these claims are procedurally defaulted, and petitioner does not allege cause or

prejudice to cure the default. See West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996) (citing

Wainwright v. Sykes, 433 U.S. 72, 87–88 (1977)).

For these reasons, petitioner is not entitled to habeas relief on his claims of prosecutorial

misconduct.

No. 11-5707 Wheeler v. Simpson Page 42

XI.

Petitioner also claims that Kentucky’s proportionality review violates the Eighth

Amendment and denied him due process. Specifically, petitioner argues that Kentucky’s

proportionality review is unconstitutional because it incorporates cases in which the death

sentence was not imposed and thus results in an arbitrary application of death sentences.

I disagree. As this court previously explained in Bowling:

The Supreme Court has held that the Constitution does require proportionality

review, but that it only requires proportionality between the punishment and the

crime, not between the punishment in this case and that exacted in other cases.

See Pulley v. Harris, 465 U.S. 37, 50 (1984). Although “[t]here is no federal

constitutional requirement that a state appellate court conduct a comparative

proportionality review,” McQueen v. Scroggy, 99 F.3d 1302, 1333–34 (6th Cir.

1996), cert. denied, 521 U.S. 1130 (1997), Kentucky law does require the

Kentucky Supreme Court to engage in comparative proportionality review. See

Ky. Rev. Code Ann. § 532.075(3)(c). Although claimed violations of state law

are generally not cognizable on habeas, the Supreme Court has left room for the

argument that a state-law error could, potentially, “be sufficiently egregious to

amount to a denial of equal protection or of due process of law guaranteed by the

Fourteenth Amendment.” Harris, 465 U.S. at 41.

344 F.3d at 521. The Bowling court expressed skepticism over whether § 532.075(3)(c) created

a due process interest, noting that “the statute only explains what the Kentucky Supreme Court

needs to consider—similar cases, the crime, and the defendant—it does not tell that court how to

make this decision. This suggests . . . that no due-process right exists” pursuant to

§ 532.075(3)(c). Id. at 521–22.

Petitioner attempts to distinguish this case from Bowling, arguing that it “considered only

a due process argument and merely noted that proportionality review is not required in light of

Harris” but did not address what petitioner calls “threshold” statutes. According to petitioner,

“Gregg [v. Georgia, 428 U.S. 153 (1976),] and [Zant v.] Stephens, [462 U.S. 862 (1983),]

require jurisdictions with ‘threshold’ statutes to consider in proportionality review cases where

the death penalty was not imposed.” Petitioner defines “threshold statutes” as akin to “Georgia’s

and Kentucky’s statutes that permit juries to impose death as long as an aggravator is found and

mitigation considered.” The Supreme Court in Harris, however, saw things differently:

No. 11-5707 Wheeler v. Simpson Page 43

While emphasizing the importance of mandatory appellate review under the

Georgia statute, [Stephens], 103 S. Ct., at 2742, we did not hold that without

comparative proportionality review the statute would be unconstitutional. To the

contrary, we relied on the jury’s finding of aggravating circumstances, not the

State Supreme Court’s finding of proportionality, as rationalizing the sentence.

Thus, the emphasis was on the constitutionally necessary narrowing function of

statutory aggravating circumstances. Proportionality review was considered to be

an additional safeguard against arbitrarily imposed death sentences, but we

certainly did not hold that comparative review was constitutionally required.

There is thus no basis in our cases for holding that comparative proportionality

review by an appellate court is required in every case in which the death penalty

is imposed and the defendant requests it. Indeed, to so hold would effectively

overrule Jurek [v. Texas, 428 U.S. 262 (1976),] and would substantially depart

from the sense of Gregg and Proffitt [v. Florida, 428 U.S. 242 (1976)]. We are

not persuaded that the Eighth Amendment requires us to take that course.

465 U.S. at 50–51. Because petitioner offers no Supreme Court precedent supporting his notion

that the Kentucky Supreme Court should have compared his case to cases in which the death

penalty was not imposed, I conclude he is not entitled to relief on this claim.

XII.

Next, petitioner argues that his trial counsel was constitutionally ineffective for failing to

explain the presence of petitioner’s blood on Warfield’s thigh and for failing to investigate the

police’s collection of this blood evidence. I disagree.

As an initial matter, petitioner cites neither any authority nor any portion of the record in

support of his arguments regarding this claim. And, his argument is perfunctory in any event.

Accordingly, petitioner has abandoned this claim on appeal. See United States v. Villareal,

491 F.3d 605, 611 (6th Cir. 2007) (citing United States v. Johnson, 430 F.3d 383, 397 (6th Cir.

2005)); Gen. Star Nat’l Ins. Co., 289 F.3d at 441.

Moreover, even assuming that petitioner had not abandoned this claim, it is meritless.

Again, in order to establish constitutionally ineffective assistance of counsel, a petitioner must

demonstrate: (1) deficient performance by counsel—that is, that counsel’s performance was

objectively unreasonable under prevailing professional norms; and (2) prejudice to the defense as

a result of that deficient performance. See Strickland, 466 U.S. at 687–88. Professional norms,

for purposes of the Strickland’s deficiency prong, are “judged by reference to the time of

No. 11-5707 Wheeler v. Simpson Page 44

representation, and cannot be based on hindsight,” and “[t]he burden lies with the petitioner to

‘identify the acts or omissions of counsel that are alleged not to have been the result of

reasonable professional judgment.’” Storey v. Vasbinder, 657 F.3d 372, 388 (6th Cir. 2011)

(quoting Strickland, 466 U.S. at 689, 690). As for the prejudice requirement, a petitioner can

“show prejudice by establishing 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.’” Davis v. Lafler,

658 F.3d 525, 536 (6th Cir. 2011) (quoting Strickland, 466 U.S. at 694). Along these lines, this

court has previously noted that “[w]hen analyzing a Strickland claim under § 2254(d), our

review is doubly deferential. The key question is whether there is any reasonable argument that

counsel satisfied Strickland’s deferential standard.” Campbell, 674 F.3d at 587 (internal

citations and quotation marks omitted).

Petitioner suggests that “the drop of blood on Warfield’s thigh is consistent with

[petitioner’s] blood having ‘dropped’ from the killer’s knife—the same one used to stab Malone

and [petitioner]—onto Warfield’s thigh.” As in the state courts, however, petitioner offers no

support for this argument. This argument is entirely speculative. Petitioner points to no facts at

trial that would support his theory that his blood was transferred by the real killer’s knife and

dropped on Warfield’s thigh. And, even if that lack of evidence was the result of petitioner’s

trial counsel’s failure to investigate, in light of the other overwhelming evidence of petitioner’s

guilt, I would still conclude that there was some “reasonable argument” that petitioner’s trial

counsel’s strategy satisfied Strickland. Accordingly, even if he had not abandoned this claim,

petitioner would not be entitled to habeas relief.

XIII.

Finally, petitioner argues that the trial court’s failure to instruct the jury on voluntary

intoxication and extreme emotional disturbance denied him a fundamentally fair trial and thus

was contrary to, or an unreasonable application of, the Supreme Court’s holding in Beck v.

Alabama, 447 U.S. 625 (1980). I disagree.

“In capital cases, Beck v. Alabama requires that the jury be instructed on a noncapital

lesser-included offense if, and only if, ‘the evidence would permit a jury rationally to find [the

No. 11-5707 Wheeler v. Simpson Page 45

defendant] guilty of the lesser offense and acquit him of the greater.’” Smith v. Bradshaw,

591 F.3d 517, 523 (6th Cir. 2010) (quoting Beck, 447 U.S. at 635). In Hopper v. Evans, 456 U.S.

605, 611 (1982), the Court explained that “due process requires that a lesser included offense

instruction be given only when the evidence warrants such an instruction.” Here, the evidence

does not warrant such an instruction. In support of this claim, petitioner offers only that

“evidence throughout trial demonstrates [petitioner’s] entitlement to an instruction on voluntary

intoxication and extreme emotional disturbance (his actual drug abuse on the day of the offense,

the nature of the crime, and his disheveled appearance following the crime).” However,

“Kentucky law requires a ‘triggering event,’ that is responsible for causing the emotional

disturbance.” Baze v. Parker, 371 F.3d 310, 325 (6th Cir. 2004) (quoting Stanford v.

Commonwealth, 793 S.W.2d 112, 115 (Ky. 1990)). “A triggering event is dramatic, creating a

temporary emotional disturbance that overwhelms the defendant’s judgment.” Id. (citing Spears

v. Commonwealth, 30 S.W.3d 152, 153, 155 (Ky. 2000)). Petitioner has made no showing of a

triggering event justifying an emotional disturbance instruction. The same is true concerning the

voluntary intoxication instruction. “[A]n accused is entitled to have the defense of intoxication

submitted in instructions to the jury if the evidence is sufficient to indicate that the degree of

intoxication was at a level which prevented the forming of the intent necessary under the

statute.” Foster v. Commonwealth, 827 S.W.2d 670, 677 (Ky. 1991) (citing Parido v.

Commonwealth, 547 S.W.2d 125 (Ky. 1977)). No such evidence was presented here.

Presumably referring to the use of crack cocaine, petitioner only testified that, before the crime,

he “was over to Donnie’s, we, uh, we was using some then, and that’s when we decided to get

some – you know, try to obtain some more.” This, without more, is insufficient to warrant relief.

XIV.

For these reasons, I conclude that petitioner is not entitled to relief on any of his claims

and would affirm the district court in all respects. Accordingly, I respectfully dissent.