Henry Hodges v. Roland Colson

RECOMMENDED FOR FULL-TEXT PUBLICATION

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

File Name: 13a0075p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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HENRY HODGES,

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Petitioner-Appellant,

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No. 09-5021

v.

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Respondent-Appellee. -

ROLAND COLSON, Warden,

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Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 01-00624—William J. Haynes, Jr., District Judge.

Argued: June 7, 2011

Decided and Filed: March 26, 2013

Before: BATCHELDER, Chief Judge; COOK and WHITE, Circuit Judges.

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COUNSEL

ARGUED: Kelley J. Henry, OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Nashville, Tennessee, for Appellant. James E. Gaylord, OFFICE OF THE TENNESSEE

ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: Kelley J.

Henry, Gretchen L. Swift, OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Nashville, Tennessee, for Appellant. James E. Gaylord, Angele M. Gregory, OFFICE

OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

BATCHELDER, C. J., delivered the opinion of the court in which COOK, J.,

joined, and WHITE, J., joined in part. WHITE, J. (pp. 38–46), delivered a separate

opinion dissenting from Part III of the majority opinion and from the result.

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OPINION

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ALICE M. BATCHELDER, Chief Judge. In 1992, a Tennessee jury convicted

Petitioner-Appellant Henry Hodges of first-degree murder and sentenced him to death.

1

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The state courts upheld the conviction and sentence on appeal and denied Hodges’s

petition for post-conviction relief. Hodges then petitioned for federal habeas relief,

which the district court denied. Hodges now appeals that denial to this court. For the

following reasons, we AFFIRM the district court’s denial of Hodges’s habeas petition.

FACTS

The Tennessee Supreme Court summarized the facts of this case as follows:

The defendant, Henry Eugene Hodges, entered a guilty plea and was

convicted of premeditated first-degree murder. Thereafter, the penalty

phase of the trial commenced. The State presented proof of the

circumstances of the offense through the testimony of Trina Brown, the

defendant’s fifteen-year-old girlfriend. Brown testified that one week

before the murder she and the twenty-four-year-old defendant, who were

living with the defendant’s brother in Smyrna, Tennessee, decided to

move to Florida. To get money for the move, Hodges, a male

homosexual prostitute, told Brown that he would rob and kill the next

person who propositioned him. Hodges discussed with Brown how the

crimes would be carried out. Hodges repeated these statements on May

14, 1990, the day of this murder.

On the night of May 14, Brown and Hodges went to Centennial Park in

Nashville. When the victim, Ronald Bassett, approached, Hodges talked

with him, and they left together in the victim’s vehicle and went to the

victim’s residence at 3133A, Parthenon Avenue, across from Centennial

Park. Ten or fifteen minutes later, Hodges returned to the park on foot,

and along with Brown, drove back to the victim’s residence in his own

car. Hodges told Brown to lie down in the backseat of the car so no one

could see her. When they arrived at the victim’s residence, Hodges told

Brown to wait in the car. After an unspecified period of time, Hodges

returned to the car, wearing gloves, and asked Brown to come into the

house. Brown testified that when she arrived, Bassett was lying face

down on the bed in his bedroom with a pillow over his head. Hodges had

bound his feet together with duct tape and had handcuffed his hands.

While Bassett lay helplessly, Brown and the defendant ransacked the

house searching for items of value. After obtaining the personal

identification number for the victim’s automatic teller card, Brown and

the defendant “took a break,” drank a coke, and discussed whether to kill

Bassett. Brown testified that she told Hodges to kill Bassett to prevent

their arrest. Hodges then went into the bedroom and, ignoring the

victim’s pleas not to kill him, strangled Bassett to death with a nylon

No. 09-5021 Hodges v. Colson Page 3

rope. Brown testified that she heard Bassett moan and make a choking

sound and that it took about five minutes for Bassett to die.

In an attempt to remove any fingerprints, the defendant wiped off various

items in the residence. After turning the air conditioner in Bassett’s

bedroom on high to prevent discovery of the body, Hodges and Brown

left the victim’s residence, taking the victim’s automobile and several

items of personal property, including jewelry, a gun, and a VCR. After

using Bassett’s automatic teller card to withdraw the twenty-four-hour

maximum of four hundred dollars from his account, the pair returned to

the house of the defendant’s brother and went to bed. The next day,

having learned that the victim’s body had been discovered, Brown and

the defendant abandoned the victim’s car in rural Rutherford County and

drove to Georgia in their own car. They were eventually arrested in

North Carolina. Items of the victim’s personal property were found in

their possession at this time. Also, the defendant’s fingerprints were

found on items inside Bassett’s home, and Brown had been photographed

withdrawing money with Bassett’s automatic teller card.

Testifying for the State at the sentencing hearing, Dr. Charles Harlan, the

chief medical examiner for Metropolitan Nashville and Davidson

County, confirmed that Bassett had died from ligature strangulation. Dr.

Harlan opined that Bassett would have remained alive and conscious for

at least three and perhaps as long as five minutes during the

strangulation. Harlan also found abrasions on the victim’s wrists

consistent with handcuffs.

The State proved that the defendant had been convicted of armed

robbery, attempted kidnaping and robbery in Hamilton County in 1984.

The State also established that the defendant had been convicted of

murder in Fulton County, Georgia, in July 1990. The record reveals that

the Georgia killing occurred when the defendant and Brown arrived in

Atlanta after murdering Bassett. Hodges made arrangements with a man

to engage in homosexual acts for an agreed price. Hodges accompanied

the man to his motel room, but when the man was unable to pay the

agreed price, Hodges murdered him.

In mitigation, the defendant testified and also presented the testimony of

his mother, his brothers and Dr. Barry Nurcombe, a child psychiatrist.

This proof showed that the defendant was the next to youngest of his

mother’s five sons. His mother and father were not married. His father

was actually married to another woman, but engaged in what one of the

witnesses described as an “irregular union” with the defendant’s mother

for eighteen years. The defendant’s father abused the defendant’s mother

and was strict with the defendant’s brothers, three of whom were the

children of another man. The defendant, however, was his father’s

No. 09-5021 Hodges v. Colson Page 4

favorite and was spoiled. Financial difficulties forced the family to move

about frequently, and defendant’s father supported the family only

sporadically.

The defense introduced proof to show that Hodges seemed normal until

he was twelve years old. At that time, he began to associate with older

boys, sniff glue and gasoline, be truant from school, and run away from

home. He also engaged in sexual activities with his younger brother and

attempted sexual activities with a female cousin. He became involved

with the juvenile authorities and was confined to a juvenile facility in

Chattanooga.

Through his mitigation proof, the defendant attempted to establish that

a catalyst and major contributing cause of his delinquent and later

criminal behavior was his rape and sexual abuse by a stranger when he

was twelve years old. According to the defendant, he accepted a

stranger’s offer of a ride home when he was playing a short distance from

his home on Fessler’s Lane in Nashville. Rather than driving Hodges

home, the stranger drove Hodges to his home and raped him. Fearing

rejection by his homophobic father and driven by guilt, the defendant

told no one of this incident until he was arrested in 1990.

Dr. Nurcombe testified that, while the defendant suffered from an

antisocial personality disorder, low self-esteem, and substance

(marijuana) abuse, the killing was motivated by a subconscious desire for

revenge for the sexual abuse inflicted on him when he was twelve,

coupled with Hodges’ fear that his family might discover that he was

engaged in homosexual prostitution since Brown had told Hodge’s [sic]

sister-in-law shortly before the killing that he was a homosexual

prostitute. The defense also introduced testimony that Brown dominated

and manipulated the defendant.

In rebuttal the State called Dr. James Kyser, a forensic psychiatrist, and

Dr. Leonard Morgan, a clinical psychologist. Both had examined the

defendant and concluded that he suffered from an antisocial personality

disorder. They described persons with this disorder as having “no

conscience,” being “self centered,” being “notoriously dishonest and

untruthful,” and having “very little regard for the feelings of others and

. . . willing to use any means to get what they want, no matter who it

hurts.” While acknowledging the complicated factors involved in

antisocial personality disorders, the State’s experts discounted the

singular importance of the one incident of alleged sexual abuse in

causing the defendant’s actions. Dr. Morgan concluded that the

defendant “was in complete control of his behavior” and not suffering

from mental illness or emotional disturbance.

No. 09-5021 Hodges v. Colson Page 5

Based on the evidence presented, the jury determined that the State had

proven the existence of three aggravating circumstances beyond a

reasonable doubt: (1) “[t]he defendant was previously convicted of one

or more felonies, other than the present charge whose statutory elements

involve the use of violence to the person;” (2) “[t]he murder was

especially heinous, atrocious or cruel in that it involved torture or serious

physical abuse beyond that necessary to produce death;” and (3) “[t]he

murder was committed while the defendant was engaged in committing,

or was an accomplice in the commission of, or attempting to

commit, or fleeing after committing a robbery.” Tenn. Code Ann.

§ 39–13–204(i)(2); (i)(5) and (i)(7) (1991 Repl.). In addition, the jury

found that the aggravating circumstances outweighed the mitigating

circumstances beyond a reasonable doubt and, as a result, sentenced the

defendant to death by electrocution. The trial court entered a judgment

in accordance with the jury’s verdict and the Court of Criminal Appeals

affirmed. After reviewing the record and considering the errors alleged

by the defendant, we affirm the judgment of the trial court and Court of

Criminal Appeals.

Tennessee v. Hodges, 944 S.W.2d 346, 349–51 (Tenn. 1997) (footnotes omitted).

PROCEDURAL HISTORY

Hodges was convicted of first-degree murder and sentenced to death in January

1992. The Tennessee Court of Criminal Appeals affirmed his conviction and sentence

in 1995. Tennessee v. Hodges, No. 01-C-01-9212-CR00382, 1995 WL 301443 (Tenn.

Crim. App. May 18, 1995). The Tennessee Supreme Court affirmed in 1997. Hodges,

944 S.W.2d 346.

Hodges filed a petition for post-conviction relief in December 1997, and the trial

court denied relief in February 1999. The Tennessee Court of Criminal Appeals

affirmed that decision in 2000. Hodges v. Tennessee, No. M1999-00516-CCA-R3-PD,

2000 WL 1562865 (Tenn. Crim. App. Oct. 20, 2000). The Tennessee Supreme Court

denied an application for permission to appeal in March 2001.

Hodges filed a petition to proceed in forma pauperis in federal district court in

May 2001, a provisional petition for a writ of habeas corpus in July 2001, and an

amended petition in March 2002. Hodges raised 32 claims and subclaims in his

amended habeas petition. The district court granted some of Hodges’s discovery

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requests, denied others, and denied Hodges’s request for an evidentiary hearing. In

March 2008, the district court denied Hodges’s habeas petition. Hodges applied for a

Certificate of Appealability (“COA”), and the district court granted a COA as to all

claims.

STANDARD OF REVIEW

This court reviews de novo a district court’s legal conclusions and mixed

questions of law and fact, and reviews its factual findings for clear error. Lucas v.

O’Dea, 179 F.3d 412, 416 (6th Cir. 1999). Under the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), a district court may not grant a habeas petition with respect to

any claim that was adjudicated on the merits in the state courts unless the adjudication

resulted in a decision that: (1) was contrary to, or involved an unreasonable application

of, clearly established federal law as determined by the Supreme Court; or (2) was based

on an unreasonable determination of the facts in light of the evidence presented to the

state courts. 28 U.S.C. § 2254(d). Under the “contrary to” clause, a federal habeas court

may grant the writ 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 decides a case differently

than the Supreme Court has on a set of materially indistinguishable facts. Williams v.

Taylor, 529 U.S. 362, 412–13 (2000). Under the “unreasonable application” clause, a

federal habeas court may grant the writ 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 petitioner’s case. Id. To obtain habeas relief, “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.”

Harrington v. Richter, 131 S. Ct. 770, 786–87 (2011).

To analyze whether a state court decision is contrary to or an unreasonable

application of clearly established Supreme Court precedent, courts look only to the

holdings of the Supreme Court’s decisions as of the time of the relevant state court

decision. Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003). Courts consider lower court

No. 09-5021 Hodges v. Colson Page 7

decisions to the extent they shed light on the analysis of Supreme Court holdings to

determine whether a legal principle had been clearly established. Hill v. Hofbauer,

337 F.3d 706, 716 (6th Cir. 2003). Finally, the state court’s factual findings are

presumed correct unless rebutted by the habeas petitioner by clear and convincing

evidence. See 28 U.S.C. § 2254(e)(1); McAdoo v. Elo, 365 F.3d 487, 493–94 (6th Cir.

2004).

ANALYSIS

Before this court, Hodges raises four issues: (1) whether the state courts

reasonably applied federal law in determining that certain restrictions imposed on voir

dire by the trial court did not interfere with Hodges’s constitutional right to a fair and

impartial trial; (2) whether the district court properly denied Hodges’s requests for

discovery, an evidentiary hearing, and habeas relief on a claim of juror misconduct;

(3) whether the state courts reasonably applied federal law in determining that Hodges’s

trial counsel were not ineffective for advising Hodges to plead guilty to murder and

aggravated robbery; and (4) whether the district court properly denied an evidentiary

hearing and habeas relief on Hodges’s claims of incompetency at trial and ineffective

assistance of counsel at sentencing. Hodges failed to brief the remaining claims for

which the district court granted a COA and, therefore, has waived them. See Fed. R.

App. P. 28(a)(9)(A); Landrum v. Mitchell, 625 F.3d 905, 913 (6th Cir. 2010).

I. Restrictions on Voir Dire

Hodges alleges that he was denied his right to a fair and impartial jury when the

trial court refused to allow his attorneys to ask prospective jurors whether they could

consider a life sentence for a defendant with a prior conviction for murder. Specifically,

defense counsel repeatedly attempted to ask the following question or a variation

thereof: “Could you impose a life sentence for somebody who has been convicted of

first degree murder twice?” The trial court repeatedly sustained the prosecution’s

objections to the question.

No. 09-5021 Hodges v. Colson Page 8

Hodges raised this claim on direct appeal. The Tennessee Court of Criminal

Appeals rejected it, finding that each juror was asked and allowed to answer questions

about whether he could follow the law, consider a life sentence, and weigh the

aggravating and mitigating circumstances. Hodges, 1995 WL 301443, at *8. The court

also found that a prospective juror could not answer the question “without knowing more

about the facts surrounding the case,” and that the question impermissibly sought “to

obtain a pledge from the prospective juror.” Id. The district court found that the state

court’s decision was not an unreasonable application of federal law, agreeing with the

state appellate court that Hodges’s questions improperly sought to commit the jurors to

an opinion before hearing all of the evidence.

The Sixth Amendment guarantees a criminal defendant a trial by an impartial

jury. Morgan v. Illinois, 504 U.S. 719, 726–27 (1992). An adequate voir dire to identify

unqualified jurors is integral to that right. Id. at 729; Dennis v. Mitchell, 354 F.3d 511,

523–24 (6th Cir. 2003). A state court’s refusal to pose “constitutionally compelled”

questions merits habeas relief. Mu’Min v. Virginia, 500 U.S. 415, 425–26 (1991).

Questions are constitutionally compelled only if “the trial court’s failure to ask these

questions . . . render[s] the defendant’s trial fundamentally unfair.” Id.

Hodges relies primarily on Morgan in support of his position. In Morgan, the

trial court did not permit defense counsel to ask prospective jurors the following

question: “If you found [the defendant] guilty, would you automatically vote to impose

the death penalty no matter what the facts are?” Morgan, 504 U.S. at 723. The Supreme

Court held that general questions about following the law were not enough and that it

was error to exclude a more specific question tailored to identify jurors “who would

always impose death following conviction [of a capital offense].” Id. at 733, 735

(emphasis in original).

The Tennessee Court of Criminal Appeals’ determination that the trial court’s

restrictions on voir dire were permissible was neither contrary to nor an unreasonable

application of federal law. The trial court allowed defense counsel to ask the Morgan

question, i.e., whether there was an aggravating circumstance that would cause her

No. 09-5021 Hodges v. Colson Page 9

automatically to impose the death penalty. In fact, the trial court went beyond that and

also allowed defense counsel to ask prospective jurors whether they could impose a life

sentence on a defendant who had a prior conviction for a violent felony.1 Only when

defense counsel sought to get even more specific—asking whether a prospective juror

could impose a life sentence on a defendant who had a prior first-degree murder

conviction—did the trial court restrict questioning.

This circuit has held that voir dire questions about how a potential juror would

vote if given specific examples of aggravating or mitigating evidence are not

constitutionally compelled under Morgan. In Dennis, 354 F.3d at 523, the petitioner

alleged that the trial court violated his constitutional rights by refusing to permit him to

ask prospective jurors about specific mitigating factors, including age, lack of prior

criminal history, and environment. We held that the Ohio Supreme Court’s conclusion

that the trial court allowed adequate questioning was “not an unreasonable determination

of the facts in light of the record” and was not “contrary to United States Supreme Court

precedent.” Id. at 525. We noted that the trial court had allowed the petitioner’s counsel

to ask prospective jurors about mitigating factors in general: whether or not they could

consider mitigating factors and return a life sentence; whether they could follow the law;

and whether any of the jury panel had strong feelings about psychological evidence

concerning upbringing, discipline, and lack of discipline. Id. at 524–26.

Similarly, in Bedford v. Collins, 567 F.3d 225 (6th Cir. 2009), we rejected the

petitioner’s claim that the trial court improperly limited the scope of voir dire by

prohibiting counsel from asking questions that sought to elicit prospective jurors’ views

on the petitioner’s specific case. We noted that the trial court “drew the line at questions

1

In one instance, defense counsel asked if a prospective juror could consider mitigating evidence

for a defendant who had been previously convicted of a violent felony (as opposed to a previous conviction

for first-degree murder). The juror answered “[p]robably not” and was subsequently excluded for cause.

Hodges claims the exclusion of this juror “proves the fundamental unfairness of the trial court’s restrictions

[on voir dire].” Pet.’s Br. at 69. We disagree for at least two reasons. First, the question posed to that

juror contemplated a conviction for any violent felony, which is different from a question asking about a

specific violent felony actually at issue in the trial (e.g., first-degree murder). Second, the trial court’s

exclusion of that juror on the basis of her answer to that specific question does nothing whatsoever to

suggest that the trial court was constitutionally compelled to allow the excluded questions, which focused

on first-degree murder, not violent felonies in general. Accordingly, despite Hodges’s vehement

arguments to the contrary, the exclusion of that juror does not provide compelling support for his position.

No. 09-5021 Hodges v. Colson Page 10

that sought to elicit the jurors’ views on [the petitioner’s] specific case—but many

judges understandably (and properly) would do the same thing to prevent the lawyers

from previewing their case through voir dire.” Id. at 232 (emphasis added). Ultimately

we concluded that the restrictions on voir dire “did not render the process fundamentally

unfair. [The restrictions] reflect instead a reasonable effort to enable adequate

exploration of juror biases (on the one hand) while preventing counsel from extracting

commitments from individual jurors as to the way they would vote (on the other).” Id.

(citing Dennis, 354 F.3d at 523–25).

Other circuits agree that Morgan does not compel a trial court to allow questions

about how a potential juror would vote if given specific examples of aggravating or

mitigating evidence. See Richmond v. Polk, 375 F.3d 309 (4th Cir. 2004); United States

v. McVeigh, 153 F.3d 1166, 1207 (10th Cir. 1998) (“When a defendant seeks to ask a

juror to speculate or precommit on how that juror might vote based on any particular

facts, the question strays beyond the purpose and protection of Morgan.”). In Richmond,

the Fourth Circuit addressed a claim functionally identical to the one presented here by

Hodges. There, the defendant sought to ask potential jurors “if . . . knowing that [the

defendant] had a previous first-degree murder conviction, they could still consider

mitigating circumstances . . . in determining what their ultimate recommendation as to

life or death is going to be.” Richmond, 375 F.3d at 316. The trial court denied

counsel’s request to ask the question “on the basis that it was a ‘stakeout’ question aimed

at determining what prospective jurors would do if presented with a certain state of

evidence.” Id. The North Carolina Supreme Court agreed and affirmed. Id. at 329–30.

The Fourth Circuit held that the North Carolina Supreme Court’s decision “was neither

contrary to nor an unreasonable application of Morgan.” Id. at 330 (internal quotation

marks omitted). It reasoned:

Morgan does not require that a capital defendant be allowed to determine

at voir dire what a prospective juror’s sentencing decision will be if

presented with a specific state of evidence or circumstances. Rather,

Morgan requires that a capital defendant be afforded an adequate

opportunity at voir dire to identify prospective jurors who, even prior to

the State’s case in chief, have predetermined to impose the death penalty.

No. 09-5021 Hodges v. Colson Page 11

Id. (internal quotation marks and formatting omitted).

We agree with the Fourth Circuit’s reasoning in Richmond, and we hereby

reaffirm our own holdings in Dennis and Bedford. Trial courts have “a great deal” of

discretion in conducting voir dire. Morgan, 504 U.S. at 729. Morgan simply does not

require a trial court to permit defense counsel to ask prospective jurors how they would

vote assuming the existence of particular mitigating or aggravating circumstances, which

is essentially what defense counsel sought to do here. Morgan allows for the

identification and exclusion of jurors who are biased for or against the death penalty

before being presented with any evidence and would always vote in accordance with

their biases without regard to the particular facts of the particular case. Id. at 733 (“Were

voir dire not available to lay bare the foundation of petitioner’s challenge for cause

against those prospective jurors who would always impose death following conviction,

his right not to be tried by such jurors would be rendered . . . nugatory.”) (emphasis in

original)). When defense counsel asks questions about the specific aggravating and/or

mitigating factors actually at issue in a case, defense counsel is no longer attempting to

identify members of the venire who would always vote for the death penalty; rather,

defense counsel is attempting to preview how prospective jurors will vote given the

specific facts of the individual case, and Morgan does not require a trial court to allow

such previews.

Here, defense counsel was permitted to ask the Morgan question and was even

permitted to go beyond that and ask questions such as whether a juror could impose a

life sentence on a defendant with previous violent-felony convictions. That was easily

sufficient to comply with Morgan’s requirement that a capital defendant be allowed to

identify prospective jurors who would “always” vote for death. See id. The trial court

excluded only questions concerning specific aggravating factors actually at issue in the

case (namely, a previous conviction for first-degree murder). Accordingly, the decision

of the Tennessee Court of Criminal Appeals affirming the trial court’s restrictions on

voir dire was neither contrary to nor an unreasonable application of federal law, and

Hodges is not entitled to habeas relief on this claim.

No. 09-5021 Hodges v. Colson Page 12

II. Juror Misconduct

Hodges claims that his death sentence violates his Sixth, Eighth, and Fourteenth

Amendment rights because juror Leroy Thompson engaged in misconduct by allegedly

misinforming the trial court that he would be able to sit on the jury but then voting for

the death penalty only because he was in pain due to arthritis and wanted to end

deliberations. Hodges included Thompson’s alleged misconduct as a ground for his

request for an evidentiary hearing. Hodges concedes that he never raised this matter in

the state courts and that it is therefore procedurally defaulted, but he contends that he can

establish cause and prejudice to excuse the procedural default.

Whether a petitioner’s federal habeas claim is barred by procedural default is a

question that we review de novo.2 Abela v. Martin, 380 F.3d 915, 922 (6th Cir. 2004).

“[S]tate prisoners must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established appellate

review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). When a petitioner

has failed to present the grounds to the state courts and no state remedy remains

available, his grounds are procedurally defaulted. Id. at 847–48. “[T]he exhaustion

doctrine requires the petitioner to present the same claim under the same theory to the

state courts before raising it on federal habeas review.” Hicks v. Straub, 377 F.3d 538,

552–53 (6th Cir. 2004) (internal quotation marks omitted). The petitioner will not be

allowed to present claims never before presented in the state courts unless he can show

cause to excuse his failure to present the claims and actual prejudice to his defense at

trial or on appeal. Coleman v. Thompson, 501 U.S. 722, 750 (1991). The only exception

is if review is needed to prevent a fundamental miscarriage of justice, such as when the

petitioner submits new evidence showing that a constitutional violation has probably

2

We recognize that the district court did not discuss whether this claim was procedurally

defaulted because it found that Leroy Thompson did not serve on the jury. That finding was clearly

erroneous; Leroy Thompson’s name appears on the verdict form. The district court’s failure to discuss

procedural default of this claim does not prohibit this court from considering it, cf. Elzy v. United States,

205 F.3d 882, 886 (6th Cir. 2000) (“we nonetheless may raise [the issue of procedural default] sua

sponte”), particularly in light of the fact that the State argued that the claim was procedurally defaulted in

both the district court and in this court.

No. 09-5021 Hodges v. Colson Page 13

resulted in a conviction of one who is actually innocent. Murray v. Carrier, 477 U.S.

478, 495–96 (1986).

Hodges concedes that he never presented this particular claim to the state courts.

He did challenge Thompson for cause on the basis that Thompson was incompetent and

unable to understand the proceedings, but he never “presente[ed] the same claim under

the same theory to the state courts” that he presents here. See Hicks, 377 F.3d at 553.

Hodges no longer has any state court remedies to exhaust. Under Tennessee’s

post-conviction law, a prisoner challenging a conviction may file only one petition

attacking a single judgment. Tenn. Code Ann. § 40-30-102(c). A prisoner may file a

motion to reopen his first post-conviction petition only if his claim stems from a newly

established constitutional right that applies retroactively, relies on scientific evidence

that he is actually innocent, or involves a sentence enhanced because of a previous

conviction that has been declared invalid. Fletcher v. Tennessee, 951 S.W.2d 378,

380–81 (Tenn. 1997) (citing Tenn. Code Ann. § 40-30-217(a) (1996 Supp.)). Hodges’s

juror misconduct claim does not fall within any of these exceptions. Because he failed

to present the claim to the state courts and no state court remedies remain available, the

claim is procedurally defaulted. See O’Sullivan, 526 U.S. at 848.

At the district court, Hodges argued that various causes could excuse his

procedural default, including ineffective assistance of appellate counsel, ineffective

assistance of post-conviction counsel, reliance on Thompson’s responses in voir dire,

and Hodges’s inability to locate Thompson before the post-conviction evidentiary

hearing. Ineffective assistance of counsel can constitute cause for a procedural default.

See Carrier, 477 U.S. at 492. However, “an ineffective-assistance-of-counsel claim

asserted as cause for the procedural default of another claim can itself be procedurally

defaulted.” Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In post-conviction

proceedings, Hodges raised a claim of ineffective assistance of appellate counsel

regarding Thompson’s competence. He did not claim that appellate counsel were

ineffective for failing to raise the claim that Thompson engaged in misconduct.

No. 09-5021 Hodges v. Colson Page 14

Accordingly, Hodges cannot rely on ineffective assistance of counsel to establish cause

to excuse his procedural default.

Nor can Hodges rely on ineffective assistance of post-conviction counsel to

establish cause to excuse his default, even if this holding is not so clear-cut as it once

would have been. Historically, the federal courts have held that there is no constitutional

right to an attorney in post-conviction proceedings, and that ineffective assistance of

post-conviction counsel therefore cannot establish cause for procedural default.

See Carpenter, 529 U.S. at 450–53; Coleman, 501 U.S. at 752; Landrum, 625 F.3d at

919. But the Supreme Court recently held in Martinez v. Ryan, 132 S. Ct. 1309 (2012),

that there is a “narrow exception” to Coleman: “Inadequate assistance of counsel at

initial review collateral proceedings may establish cause for a procedural default of a

claim of ineffective assistance at trial.” Id. at 1315 (emphasis added). This

“equitable”—as opposed to constitutional—exception is premised on Coleman itself, a

case in which the Court declined to address the situation in which “state collateral review

is the first place a prisoner can present a challenge to his conviction.” Coleman,

501 U.S. at 755. The Martinez Court held that in such situations ineffective assistance

of post-conviction counsel may be raised as cause to excuse procedural default because

“the collateral proceeding is in many ways the equivalent of a prisoner’s direct appeal

as to the ineffective assistance claim.” Martinez, 132 S. Ct. at 1317.

The Court in Martinez purported to craft a narrow exception3 to Coleman. We

will assume that the Supreme Court meant exactly what it wrote: “Coleman held that

an attorney’s negligence in a postconviction proceeding does not establish cause, and

this remains true except as to initial-review collateral proceedings for claims of

ineffective assistance of counsel at trial.” Id. at 1316 (emphasis added). The Supreme

Court further insisted:

3

We are reminded of one jurist’s statement, made in a different context, that “[e]xceptions to

categorical rules, once created, are difficult to cabin; the logic of the new rule, like water, finds its own

level, and it’s hard to keep it from covering far more than anticipated.” United States v. Alvarez, 638 F.3d

666, 667 (9th Cir. 2011) (Kozinsky, C.J., concurring).

No. 09-5021 Hodges v. Colson Page 15

The rule of Coleman governs in all but the limited circumstances

recognized here. The holding in this case does not concern attorney

errors in other kinds of proceedings, including appeals from

initial-review collateral proceedings, second or successive collateral

proceedings, and petitions for discretionary review in a State’s appellate

courts. It does not extend to attorney errors in any proceeding beyond

the first occasion the State allows a prisoner to raise a claim of

ineffective assistance at trial, even though that initial-review collateral

proceeding may be deficient for other reasons. In addition, the limited

nature of the qualification to Coleman adopted here reflects the

importance of the right to the effective assistance of trial counsel and

Arizona’s decision to bar defendants from raising ineffective-assistance

claims on direct appeal. Our holding here addresses only the

constitutional claims presented in this case, where the State barred the

defendant from raising the claims on direct appeal.

Id. (internal citations omitted; emphases added).

We will address Hodges’s claims of ineffective assistance of trial counsel in a

different section, but here he claims ineffective assistance of post-conviction counsel as

cause to excuse default of his claim of ineffective assistance of appellate counsel for

failure to raise the juror misconduct issue on direct appeal. Under Martinez’s

unambiguous holding our previous understanding of Coleman in this regard is still the

law—ineffective assistance of post-conviction counsel cannot supply cause for

procedural default of a claim of ineffective assistance of appellate counsel. See, e.g.,

Landrum, 625 F.3d at 919. Moreover, 28 U.S.C. § 2254(i) bars a claim of ineffective

assistance of post-conviction counsel as a separate ground for relief, see Martinez,

132 S. Ct. at 1320, and Hodges has not presented any evidence to justify review of his

claim in order to prevent a fundamental miscarriage of justice. See Carrier, 477 U.S. at

495–96.

Additionally, Hodges cannot rely on statements made by Thompson at voir dire

or difficulties in locating Thompson during state post-conviction proceedings to establish

cause. Thompson discussed his pain-causing arthritis at voir dire on January 27, 1992.

The verdict form is dated January 30, 1992. Hodges filed his petition for state post-

conviction relief on December 11, 1997. He first attempted to locate Thompson in or

around June 1998. Hodges gives no explanation whatsoever as to why nearly six-and-a-

No. 09-5021 Hodges v. Colson Page 16

half years elapsed between his conviction and his first attempt to locate Thompson.

Moreover, Hodges gives no explanation as to why or how he was able to locate

Thompson for the federal habeas proceeding but not for the state post-conviction

proceeding.

“[T]he existence of cause for a procedural default must ordinarily turn on

whether the prisoner can show that some objective factor external to the defense

impeded counsel’s efforts to comply with the State’s procedural rule.” Carrier, 477 U.S.

at 479. For nearly six-and-a-half years, Hodges was aware that Thompson had arthritis

and may have been in pain during jury deliberations but failed to seek him out. The fact

that Hodges did not even attempt to locate Thompson until it was nearly too late, and

then could not find him in time to present his testimony to the state court, is not an

objective factor external to the defense sufficient to establish cause to excuse procedural

default.

Finally, Hodges has not presented any evidence that review of this claim is

necessary in order to prevent a fundamental miscarriage of justice. See id. at 495–96.

This exception has been applied only when a habeas petitioner has demonstrated that he

is actually innocent. See Carter v. Mitchell, 443 F.3d 517, 538 (6th Cir. 2006) (citing

Carrier, 477 U.S. at 496). Hodges has not presented new evidence of his innocence nor

has he even argued that he is actually innocent.

Accordingly, Hodges is unable to establish the cause necessary to excuse his

procedural default of this claim. It was therefore appropriate for the district court to

deny both an evidentiary hearing and habeas relief on this claim because the claim is

barred.

III. Ineffective Assistance of Counsel at Plea Phase

Hodges argues that his counsel rendered ineffective assistance by advising him

to plead guilty; that because of their deficient performance, his guilty plea was neither

knowing, voluntary, nor intelligent; and that he was prejudiced by his counsel’s

performance. Hodges claims that his lawyers mistakenly believed that his pleading

No. 09-5021 Hodges v. Colson Page 17

guilty would prohibit the state from introducing any evidence relating to the facts of the

murder; that his lawyers forgot that if he pled guilty to the aggravated robbery charge,

Hodges would immediately become death eligible; and that he would not have pled

guilty if his lawyers had given him accurate information.

Hodges failed to appeal the plea-invalidity claim to the Tennessee Court of

Criminal Appeals, and referred to it only in the final page of his brief without citing to

the record or any legal authority. The Tennessee Court of Criminal Appeals considered

the issue waived and declined to address it, relying on Tenn. Crim. App. R. 10(b) and

Tenn. R. App. P. 27(a)(7). See Hodges, 2000 WL 1562865, at *32. To the extent that

it is a separate claim, the plea-invalidity claim is procedurally defaulted.

See Middlebrooks v. Bell, 619 F.3d 526, 535–36 (6th Cir. 2010). Hodges cannot rely on

ineffective assistance of post-conviction counsel to excuse the default; neither has he

presented any evidence to justify review of his claim in order to prevent a fundamental

miscarriage of justice. See Carrier, 477 U.S. at 495–96. Accordingly, the plea-

invalidity claim is barred, and this court will review only the ineffective assistance of

counsel claim.

Hodges raised the ineffective assistance claim in his state post-conviction

petition. The trial court held an evidentiary hearing and took testimony from Hodges’s

trial counsel. Hodges v. Tennessee, No. M1999-00516-CCA-R3-PD, 2000 WL 1562865,

at *18 (Tenn. Crim. App. Oct. 20, 2000). The Court of Criminal Appeals summarized

the evidence presented as follows:

At the post-conviction hearing, Dawson [defense counsel at trial]

testified that the decision to enter a guilty plea was made the weekend

prior to trial when it was determined that “there was no way we were

going to convince anybody that Mr. Hodges didn't kill the victim in this

matter.” He explained that, at that time, the defense team believed that

by entering a plea during the guilt phase of the trial, they would gain

credibility with the jury for the sentencing phase. The defense team also

hoped to surprise the State by entering the plea. In essence, the defense

team intended to disrupt the bifurcated nature of the trial, thereby

precluding the State from introducing evidence during the penalty phase

which the State had planned to introduce at the guilt phase.

Notwithstanding this reasoning, Dawson admitted that, although the

No. 09-5021 Hodges v. Colson Page 18

proof was overwhelming, in hindsight, they should have proceeded to

trial so that they could have begun introduction of their mitigation

theories. Michael Terry [defense counsel at trial] corroborated Dawson's

testimony regarding the appellant's guilty plea. He explained that the

plea was supposed to be “a demonstration of remorse for the jury.”

However, he agrees that the decision was a mistake and that they should

have at a least “pitched a fight.” [Hodges] did not testify at the

post-conviction hearing.

Id. The trial court held that counsel made an informed tactical decision to advise Hodges

to plead guilty. Id.

The Tennessee Court of Criminal Appeals affirmed that decision. It cited Hill

v. Lockhart, 474 U.S. 52 (1985), for the proposition that the two-prong standard from

Strickland v. Washington, 466 U.S. 668 (1984), applies to ineffective assistance of

counsel claims arising out of guilty plea proceedings. Hodges, 2000 WL 1562865, at

*19–20. The court concluded that the advice to plead guilty was not “outside the range

of competence demanded of attorneys in criminal cases.” Id. at *20. The court noted

the overwhelming evidence of guilt, the reasonable hope of obtaining leniency, the

reasonable belief that the jury would view the guilty plea as an expression of remorse,

and the elimination of the presentation to the jury of all of the evidence available of

Hodges’s guilt. Id. at *19.

The district court held that the state court’s conclusion that Hodges’s counsel

made a strategic decision to advise him to plead guilty was not unreasonable. The court

noted that Hodges’s counsel had done substantial work on the case before advising him

to plead guilty; that counsel were experienced, aware of the state’s proof and the

elements of the offenses charged; had the aid of three experts; and were impaired by

Hodges’s public statements admitting to several murders. The district court also found

that Hodges did not establish prejudice because Hodges did not testify at his post-

conviction hearing and thus did not say that he would not have pled guilty but for the

advice of counsel.

After a careful review of the record, we agree with the district court. The state

court’s determination that defense counsel’s performance was not deficient was not

No. 09-5021 Hodges v. Colson Page 19

contrary to or an unreasonable application of federal law. Moreover, even if we were

to find deficient performance, Hodges has failed to show that he was prejudiced by the

performance.4

To establish ineffective assistance of trial counsel, Hodges must show that (1)

his counsel’s performance was deficient; and (2) the deficient performance prejudiced

the defense. Strickland, 466 U.S. at 687–88. An attorney’s performance is deficient if

it is objectively unreasonable under prevailing professional norms. Id. at 688. “[A]

court must indulge a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action might be considered

sound trial strategy.” Id. at 689. The test for prejudice is whether there is a reasonable

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

would have been different. Id. at 694. To show prejudice in the guilty-plea context, a

defendant “must show that there is a reasonable probability that, but for counsel’s errors,

he would not have pleaded guilty and instead would have insisted on going to trial.”

Hill, 474 U.S. at 59. “[W]here the alleged error of counsel is a failure to advise the

defendant of a potential affirmative defense to the crime charged, the resolution of the

‘prejudice’ inquiry will depend largely on whether the affirmative defense likely would

have succeeded at trial.” Id.

The Supreme Court has recently noted that “[e]stablishing that a state court’s

application of Strickland was unreasonable under § 2254(d) is all the more difficult.”

Harrington v. Richter, 131 S. Ct. 770, 788 (2011). “The standards created by Strickland

and § 2254(d) are both highly deferential, and when the two apply in tandem, review is

doubly so.” Id. (internal quotation marks and citations omitted). Therefore, “[w]hen

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

4

We note that two recent Supreme Court cases—Lafler v. Cooper, 132 S. Ct. 1376 (2012), and

Missouri v. Frye, 132 S. Ct. 1399 (2012)—recognizing a Sixth Amendment right to effective

representation during plea-deal negotiations are not implicated here. The record does not reflect that

Hodges was offered any plea deal, so the existing legal standard under Hill v. Lockhart, 474 U.S.

52 (1985), and its progeny remains the law.

No. 09-5021 Hodges v. Colson Page 20

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

deferential standard.” Id.

A. Performance

Using the “doubly” deferential standards of § 2254(d) and Strickland, we

conclude that the state court’s determination that defense counsel’s performance was not

deficient was neither contrary to nor an unreasonable application of federal law. Trial

counsel advised Hodges to plead guilty because of the overwhelming evidence of his

guilt, to give the defense credibility, to limit the proof the prosecution could present, and

to show Hodges’s remorse.

The Supreme Court has explicitly approved using the American Bar Association

(“ABA”) Guidelines on attorney performance in effect at the time of a defendant’s trial

as “guides to determining what is reasonable” performance by counsel. See, e.g., Padilla

v. Kentucky, 130 S. Ct. 1473, 1482 (2010). However, “ABA Guidelines are not

‘inexorable commands’; rather, they are ‘only guides to what reasonableness means, not

its definition.’” Post v. Bradshaw, 621 F.3d 406, 418 (6th Cir. 2010) (quoting Bobby v.

Van Hook, 130 S. Ct. 13, 17 (2009)) (some internal quotation marks omitted).

The ABA Guidelines in effect at the time of Hodges’s trial contemplated

negotiated guilty pleas only where the defendant is assured of a sentence less than death.

ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty

Cases (“ABA Guidelines”), § 11.6.1 (1989). “If no written guarantee can be obtained

that death will not be imposed following a plea of guilty, counsel should be extremely

reluctant to participate in a waiver of the client’s trial rights.” Id. § 11.6.3 cmt.

Courts also find that a defendant has little to gain from pleading guilty in a

capital case, even when the evidence of guilt is overwhelming. “[P]leading guilty [in a

capital case] without a guarantee that the prosecution will recommend a life sentence

holds little if any benefit for the defendant.” Florida v. Nixon, 543 U.S. 175, 191 n.6

(2004) (citing ABA Guidelines § 10.9.2 cmt. (rev.ed. 2003)). The Nixon Court noted

that pleading guilty “increases the likelihood that the State will introduce aggressive

No. 09-5021 Hodges v. Colson Page 21

evidence of guilt during the sentencing phase, so that the gruesome details of the crime

are fresh in the jurors’ minds as they deliberate on the sentence.” Id. Nevertheless, the

Court concluded that “counsel cannot be deemed ineffective for attempting to impress

the jury with his candor and his unwillingness to engage in a useless charade.” Id. at 192

(internal quotation marks omitted).

This court has also recently decided a similar, but distinguishable, case. In Post,

621 F.3d at 415–18, a pre-Richter case, we addressed whether trial counsel’s advice to

enter a no-contest plea and to submit the penalty phase to a three-judge panel rather than

a jury was objectively reasonable under Strickland. Using de novo review, we

concluded that the defendant’s weak mitigation case made the decision reasonable,

noting that “[the defendant’s] counsel were between a rock and a hard place in

determining the best way to spare him a death sentence, given the overwhelming

evidence of his guilt, his numerous confessions, and his refusal to plead guilty.” Id at

418. We held that although the no-contest plea resulted in the defendant’s being

“sentenced by judges, not jurors, and by three persons rather than twelve,” the strategy

was professionally reasonable because the sentencing judges could have viewed the no-

contest plea as a mitigating factor (although ultimately they did not). Id. at 417.

Trial counsel’s advice to plead guilty here was questionable. Defense counsel

hoped that Hodges’s pleading guilty would accomplish the following: (1) gain

credibility with the jury, (2) demonstrate Hodges’s remorse, (3) limit the evidence

presented to the jury, and (4) surprise the prosecution and thereby limit the effectiveness

of its penalty case. The Tennessee Court of Criminal Appeals noted that although the

goals of counsel were reasonable, Hodges “ultimately gained nothing by pleading

guilty.” Hodges, 2000 WL 1562865, at *20. For example, despite counsel’s attempt to

limit the evidence presented to the jury, a vast majority of what they hoped to keep out

was allowed in. Trina Brown testified that Hodges planned to rob and kill the next

person who propositioned him, and that he discussed how to carry out the crimes. She

also told the jury that Hodges bound the victim’s hands and feet and that, after she and

Hodges ransacked the victim’s apartment, Hodges strangled the victim, who was

No. 09-5021 Hodges v. Colson Page 22

begging for his life. Hodges, 944 S.W.2d at 349. Police officers testified that the

victim’s belongings were found in Hodges’s possession when he was arrested, that

Hodges’s fingerprints were found in the victim’s home, and that Brown was

photographed using the victim’s ATM card. Id. at 350.

Defense counsel did successfully limit the prosecution’s cross-examination of

Hodges; the State was permitted to ask questions only about his personal history, and not

about the circumstances of the offense. Id. at 350 n.6. However, the same result could

have been achieved by putting on a reasonable doubt defense and having Hodges testify

only during the sentencing hearing. This is also true of defense counsel’s goals of

gaining credibility with the jury and showing remorse.

Moreover, defense attorney Dawson testified in the state post-conviction

proceeding that the defense team “never sat down and did an analysis of what are the

benefits of going to trial, what are the deficits and where did that lead us.” He also

testified that when the defense team advised Hodges to plead guilty, he had “totally

forgotten” about the third count of the indictment, aggravated robbery; a conviction on

that count constituted an aggravating factor for purposes of the penalty phase.

However, trial counsel also acknowledged that the evidence of Hodges’s guilt

was overwhelming. As counsel explained during the state post-conviction proceeding,

despite their advice that he should not speak with reporters, Hodges participated in a pre-

trial television series in which he gave interviews “describing himself as a serial killer.”

Attorney Dawson described the difficulties that arose from representing such a client:

“We had a client that was confessing to the public on eight murders. And he had written

to the court; he had written to the prosecutor, a confession to the case that we had to try.

It looked pretty dismal.” Trial counsel summarized the evidence against Hodges:

Hodges made inculpatory statements to police, prosecutors, the trial court, and television

reporters; his fingerprints were at the scene of the crime; he had items from the victim’s

house with him when he was arrested; Trina Brown gave a statement implicating him;

there were photos of Brown using the victim’s bank card; and Brown’s fingerprints were

on the victim’s card.

No. 09-5021 Hodges v. Colson Page 23

The defense team talked to Hodges about the decision to plead guilty and

reviewed the guilty plea form with him. Hodges thanked his attorneys for their work and

never complained about their representation.

If it were our task to determine whether trial counsel’s performance was deficient

because they advised Hodges to plead guilty, the decision would be a more difficult one.

The ABA Guidelines at the time of the plea contemplated guilty pleas in capital cases

only in exchange for a guarantee from the prosecution not to seek the death penalty.

Here, no such exchange was made, and Hodges gained little—if anything—from his

plea.

However, the “ABA Guidelines are not inexorable commands,” Post, 621 F.3d

at 418 (internal quotation marks omitted), and our task is not to determine whether trial

counsel’s performance was deficient. Rather, we must determine “whether there is any

reasonable argument that counsel satisfied Strickland’s deferential standard.” Richter,

131 S. Ct. at 788 (emphasis added). And here, as identified by the Tennessee Court of

Criminal Appeals, there is a reasonable argument that counsel satisfied Strickland’s

deferential standard. Although not directly on point, the considerations in this case are

similar to those faced by this court in Post: “[C]ounsel were between a rock and a hard

place in determining the best way to spare [the defendant] a death sentence, given the

overwhelming evidence of his guilt, [and] his numerous confessions.” 621 F.3d at 418.

And in Post, we found that counsel’s actions were reasonable under a de novo standard

of review, id., which is far less stringent than the “doubly” deferential standard that we

must apply here, see Richter, 131 S. Ct. at 788. Although there is some evidence that

counsel here failed to appreciate fully the impact of their decision, that is not material

to the issue before us: whether there is “any reasonable argument” that counsel’s

recommendation to plead guilty satisfies Strickland. As the Supreme Court has stated,

“[C]ounsel cannot be deemed ineffective for attempting to impress the jury with his

candor and his unwillingness to engage in a useless charade.” Nixon, 543 U.S. at 192.

Ultimately, the state court that addressed this issue concluded that, “[a]lthough

defense counsel’s strategy for avoiding the death penalty was thwarted, the decision to

No. 09-5021 Hodges v. Colson Page 24

pursue that particular strategy cannot be deemed incompetent.” Hodges, 2000 WL

1562865, at *20. Under the doubly deferential standard imposed by § 2254(d) and

Strickland, we simply cannot say that conclusion is contrary to or involves an

unreasonable application of federal law.

B. Prejudice

Even if we did find that the state court’s decision on trial counsel’s performance

was unreasonable, we could not grant relief because Hodges has failed to establish

prejudice. As noted above, to show prejudice in the guilty-plea context, a defendant

“must show that there is a reasonable probability that, but for counsel’s errors, he would

not have pleaded guilty and instead would have insisted on going to trial.” Hill, 474

U.S. at 59.

Because the state courts found that trial counsel’s performance was not deficient,

the state courts did not address the prejudice prong of the Strickland inquiry. We have

previously held that where a state court addresses only the performance prong of the

Strickland inquiry, this court will review the prejudice prong de novo. See Morales v.

Mitchell, 507 F.3d 916, 935 (6th Cir. 2007). However, the Supreme Court’s decision in

Richter requires us to apply AEDPA deference to our review of the prejudice prong even

where—as here—the state court reviewed only the performance prong.

In Richter, 131 S. Ct. at 784, the Supreme Court stated,

Where a state court’s decision is unaccompanied by an explanation, the

habeas petitioner’s burden still must be met by showing there was no

reasonable basis for the state court to deny relief. This is so whether or

not the state court reveals which of the elements in a multipart claim it

found insufficient, for § 2254(d) applies when a “claim,” not a

component of one, has been adjudicated.

(emphasis added). The Court went on to say, “[w]hen a federal claim has been presented

to a state court and the state court has denied relief, it may be presumed that the state

court adjudicated the claim on the merits in the absence of any indication or state-law

procedural principles to the contrary.” Id. at 784–85. Here, the state court did address

No. 09-5021 Hodges v. Colson Page 25

Hodges’s ineffective assistance of counsel “claim,” so AEDPA deference applies to the

entire claim regardless of whether the state court explicitly addressed every

“component” (i.e., the prejudice prong) of that claim. See id at 784.

Moreover, as a matter of logic, a finding that counsel’s performance was not

deficient implicitly, but unequivocally, encompasses a finding that the performance did

not prejudice the defendant. Indeed, it would be nonsensical to argue that a performance

deemed to be constitutionally sufficient nevertheless prejudiced the defendant. It must

be assumed that a state court’s decision that performance was not deficient includes a

decision that the performance was not prejudicial. Richter explicitly holds that a state

court decision is entitled to AEDPA deference, even if the state court has not given

reasons for that decision, “in the absence of any indication” that state-law procedural

principles were responsible for the state court’s decision. Id. at 785.

Here, the state court adjudicated Hodges’s ineffective assistance claim, and there

was no indication that state-law procedural principles were responsible for the state

court’s decision. Accordingly, we must review the entire claim under AEDPA

deference, including the prejudice prong. Our task is therefore to determine whether

there was “[any] reasonable basis for the state court to deny relief.” Id. at 784.

We find that there was. In Hill, 474 U.S. at 59, the Supreme Court held that in

the context of a challenge to a guilty plea, to establish prejudice a defendant need only

show that “there is a reasonable probability that, but for the counsel’s errors, he would

not have pleaded guilty and would have insisted on going to trial.” The Court went on

to give two examples. First, it noted that where the alleged error involves failure to

investigate or discover exculpatory information, “the determination of whether the error

‘prejudiced’ the defendant . . . will depend in large part on a prediction whether the

evidence likely would have changed the outcome of a trial.” Id. Second, it noted that

where the alleged error involves a failure to advise the defendant of possible affirmative

defenses, “the resolution of the ‘prejudice’ inquiry will depend largely on whether the

affirmative defense likely would have succeeded at trial.” Id. It is therefore clear that

in determining whether a defendant has shown prejudice, a court must predict whether

No. 09-5021 Hodges v. Colson Page 26

correction of the deficient performance might have enabled the defendant to succeed at

trial. “[T]hese predictions of the outcome at a possible trial, where necessary, should be

made objectively, without regard for the idiosyncrasies of the particular decisionmaker.”

Id. at 59–60.

This court has previously noted that “testimony, though self-serving, may be

enough by itself to satisfy the prejudice prong.” Miller v. Straub, 299 F.3d 570, 581 (6th

Cir. 2002). In Miller, the defendants testified at a hearing that they entered their guilty

pleas with hesitation and would not have pled guilty but for counsel’s advice. Id. The

court also noted that one of the defendants presented, in the form of testimony from his

trial counsel, “additional evidence that, with competent assistance, he would have pled

not guilty.” Id. at 582. Trial counsel testified that the defendant “pled guilty only

reluctantly,” and the court concluded that “the fact that [trial counsel] had to prevail

upon [the defendant] to plead guilty tends to corroborate [the defendant’s] testimony that

he would have pled not guilty.” Id. The court concluded that the defendants’

“testimony, along with reasonable inferences from the facts and circumstances of this

case,” established prejudice under Hill. Id. at 583.

In Hodges’s case, particularly under the doubly deferential standards of AEDPA

and Strickland, we cannot conclude that Hodges has established a reasonable probability

that, but for counsel’s advice, he would not have pled guilty. In fact, the only evidence

concerning this issue appears in Hodges’s Verified Amended Petition for Post

Conviction Relief filed on March 24, 1998. There, notably, Hodges did not say that had

he had better advice he would not have pled guilty. Rather, his statement was:

Had trial counsel performed the above investigations and informed

Petitioner of the result of those investigations, and had counsel timely

communicated with Petitioner and given him the above advice, a

reasonable probability exists that Petitioner would not have pleaded

guilty to all counts in the indictment, but, rather, would have insisted on

going to trial.

No. 09-5021 Hodges v. Colson Page 27

At the end of the document, Hodges’s signature appears, verifying that the “foregoing

allegations of fact are true and correct to the best of [his] information and belief.”5

In contrast to the defendants in Miller, Hodges has never personally testified

about his decision to plead guilty and whether he would have pled not guilty but for the

advice of counsel. Moreover, unlike in Miller, where “reasonable inferences from the

facts and circumstances” of the case suggested that the defendants would not have pled

guilty but for advice of counsel, no such inferences exist here. To the contrary, any

inferences that can be made make it clear that Hodges would have pled guilty regardless

of what his counsel recommended. Leading up to trial, Hodges embraced his guilt. For

instance, against the advice of counsel, he participated in a pre-trial television series in

which he gave interviews “describing himself as a serial killer.” Hodges also implicated

himself in letters to the court and prosecutor. Those simply are not the actions of a

defendant hoping to avoid a guilty plea, nor do they help establish a reasonable

probability that Hodges would have pled not guilty if so advised by counsel.

Furthermore, Hill instructs us to examine how competent counsel might have

influenced the outcome of a hypothetical trial, see 474 U.S. at 59–60, and there is

virtually no chance that Hodges could have avoided convictions by proceeding to trial.

As has been discussed repeatedly, the evidence against Hodges was overwhelming, and

he only made the situation worse by corresponding with reporters, the court, and the

prosecutor against the advice of his counsel. Similarly, we have no evidence or reason

to believe that the penalty phase of trial would have proceeded differently had there first

been a full guilt phase.

A self-serving statement, couched in exactly the terms of the Supreme Court’s

standard, and filed as a required part of Hodges’s verified petition for post-conviction

relief, cannot establish a reasonable probability that Hodges would have pled not guilty

but for the advice of counsel, where all objective evidence points unequivocally to the

contrary. Accordingly, it is clear that the state court had a reasonable basis for denying

5

We note that the verification oath and signature is required of all post-conviction petitions filed

in Tennessee. See Tenn. Code Ann. § 40-30-204(e) (1997).

No. 09-5021 Hodges v. Colson Page 28

relief on this claim. Hodges is not entitled to relief on his claim of ineffective assistance

of counsel at the plea phase.

IV. Ineffective Assistance of Counsel at Sentencing Phase & Incompetency at

Trial

Hodges argues that the district court erred when it denied him an evidentiary

hearing on his claims that he was incompetent at trial and that his trial counsel were

ineffective at sentencing. He also argues that the district court erred when it denied his

competency and ineffective assistance of counsel claims on the merits.

Hodges failed to present his claim of incompetency at trial to the state courts, and

he no longer has any state court remedies to exhaust. See Fletcher v. Tennessee,

951 S.W.2d 378, 380–81 (Tenn. 1997) (citing Tenn. Code Ann. § 40-30-217(a) (1996

Supp.)). The claim is therefore procedurally defaulted.

Hodges argues that substantive competency claims cannot be procedurally

defaulted, citing cases from the Tenth and Eleventh Circuits. See Battle v. United States,

419 F.3d 1292, 1298 (11th Cir. 2005); Walker v. Gibson, 228 F.3d 1217, 1229 (10th Cir.

2000); Adams v. Wainwright, 764 F.2d 1356, 1359 (11th Cir. 1985). However, neither

the Supreme Court nor this court has adopted such a rule, and we decline to do so here.

As the Ninth Circuit noted in LaFlamme v. Hubbard, No. 97-16973, 2000 WL 757525,

at *2 (9th Cir. Mar. 16, 2000), those courts that have held that substantive competency

claims cannot be procedurally defaulted appear to have conflated the distinct concepts

of waiver and procedural default. Although it is true that substantive competency claims

cannot be waived, Pate v. Robinson, 383 U.S. 375, 384 (1966) (“it is contradictory to

argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’

his right to have the court determine his capacity to stand trial”), they can be

procedurally defaulted. We agree with the Ninth Circuit that, “unlike waiver, the

procedural default rule does not rely on the petitioner’s voluntary abandonment of a

known right, but only on the fact that the claim was rejected by the state court on

independent and adequate state grounds.” LaFlamme, 2000 WL 757525, at *2 (internal

quotation marks and formatting omitted). We hereby hold that substantive competency

No. 09-5021 Hodges v. Colson Page 29

claims are subject to the same rules of procedural default as all other claims that may be

presented on habeas.

Hodges also cannot rely on ineffective assistance of post-conviction counsel to

excuse the default. As we mentioned, the Supreme Court’s decision in Martinez puts yet

another wrinkle in the crushed velvet that is federal habeas corpus jurisprudence, but the

Martinez rule is not implicated here. Martinez held that where the state courts do not

permit ineffective assistance of trial counsel claims to be brought on direct appeal but

require they be brought on collateral attack, ineffective assistance of collateral counsel

can provide cause to excuse procedural default. See Martinez, 132 S. Ct. at 1315–16.

But Tennessee does not require prisoners to bring ineffective assistance of trial counsel

claims on collateral attack—prisoners may bring them on direct appeal. See State v.

Honeycutt, 54 S.W.3d 762, 766 & n.6 (Tenn. 2001); State v. Anderson, 835 S.W.2d 600,

607 (Tenn. Crim. App. 1992); State v. Smith, 2011 Tenn. Crim. App. LEXIS 830, at

*33–35 (Tenn. Crim. App. Nov. 14, 2011). Tennessee’s system does not implicate the

same concerns as those that triggered the rule in Martinez because in Tennessee a

collateral proceeding is not “the first occasion the State allows a prisoner to raise a claim

of ineffective assistance at trial.” Martinez, 132 S. Ct. at 1320. And in any event, here

Hodges did not default an ineffective assistance of trial counsel claim; he defaulted his

claim that he was not competent to stand trial. Accordingly, the Coleman rule still

applies, and ineffective assistance of post-conviction counsel may not provide cause to

excuse default of his competency claim. Because Hodges has not presented any

evidence to justify review of his claim in order to prevent a fundamental miscarriage of

justice, see Carrier, 477 U.S. at 495–96, the substantive competency claim is barred, and

we will review the ineffective assistance claim only to the extent that it concerns failure

to investigate and present additional mitigating evidence.

In his state post-conviction petition, Hodges claimed that trial counsel were

ineffective for failing to investigate and present additional mitigating evidence.

According to Hodges, his counsel should have obtained prison records that showed he

told a doctor that he was raped as a boy and should have interviewed additional people

No. 09-5021 Hodges v. Colson Page 30

who were familiar with his background. Hodges also asserted that trial counsel failed

to investigate evidence concerning the causes, effects, and treatment of substance abuse;

failed to adequately prepare him for his testimony; and failed to make effective use of

experts. Hodges requested, and the trial court granted, $15,000 for mitigation

investigation; but the trial court denied Hodges’s request for additional funds to hire a

drug and alcohol specialist, a mitigation specialist, and a fingerprint expert. At the

evidentiary hearing, the trial court heard testimony from Hodges’s trial counsel, a

clinical sociologist who helped prepare Hodges’s mitigation case, the Tennessee District

Public Defender’s Conference chief counsel, and a mitigation specialist retained for the

post-conviction proceeding. Hodges, 2000 WL 1562865, at *4–*12. The trial court

denied Hodges’s petition.

The appellate court affirmed, finding that Hodges had not presented any evidence

in post-conviction proceedings that was substantially different from the proof introduced

at the penalty phase. Id. at *27. The court found that the experts presented at the

penalty phase, with one exception, were in possession of the same records about Hodges

used by the post-conviction mitigation specialist, and that additional evidence from

further mitigation investigation would have been cumulative to the evidence obtained

by trial counsel before sentencing. Id. It stated, “[g]iven the records presently before

this court, we conclude that trial counsel adequately investigated the appellant’s

background and presented a case in mitigation that was supported by the information

introduced.” Id. The appellate court also held that the trial court did not abuse its

discretion by denying Hodges the additional funds he requested because his post-

conviction counsel were capable of presenting the available mitigation information

without expert assistance. Id. at *29.

A. Evidentiary Hearing

“This court reviews a district court’s decision whether to hold an evidentiary

hearing for an abuse of discretion.” Vroman v. Brigano, 346 F.3d 598, 606 (6th Cir.

2003).

No. 09-5021 Hodges v. Colson Page 31

Generally, 28 U.S.C. § 2254(e)(2) governs whether a district court should hold

an evidentiary hearing in a habeas proceeding. Section 2254(e)(2) states that, with a few

exceptions, “[i]f the applicant has failed to develop the factual basis of a claim in State

court proceedings, the court shall not hold an evidentiary hearing on the claim.” Hodges

does not argue that one of the exceptions applies; instead, he argues that he did not fail

to develop the factual basis of his claim and is therefore entitled to an evidentiary

hearing.

We need not decide whether Hodges developed the factual basis of his claim in

state court because the Supreme Court’s decision in Cullen v. Pinholster, 131 S. Ct. 1388

(2011), prohibits us from considering new evidence in this case. The Court held that

“review under § 2254(d)(1) is limited to the record that was before the state court that

adjudicated the claim on the merits.” Id. at 1398. It reasoned that the language of the

statute is “backward-looking” and “requires an examination of the state-court decision

at the time it was made. It follows that the record under review is limited to the record

in existence at that same time i.e., the record before the state court.” Id. The Court also

noted that its holding did not “render[] § 2254(e)(2) superfluous” because it “continues

to have force where § 2254(d)(1) does not bar federal habeas relief.” Id. at 1400–01.

Hodges’s ineffective assistance claim was brought under § 2254(d)(1), and it was

adjudicated on the merits by the state courts. Pinholster therefore applies. It was a

reasonable exercise of the district court’s discretion to deny an evidentiary hearing on

the claim, because any evidence introduced would be “irrelevant” and “have no bearing

on § 2254(d)(1) review” in any event. See id. at 1400.

B. Ineffective Assistance

To prevail on his claim of ineffective assistance of counsel at sentencing, Hodges

must show both that his counsel’s performance was deficient and that the deficient

performance prejudiced the defense. Strickland, 466 U.S. at 687. With respect to

performance, “counsel should be strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable professional

judgment.” Pinholster, 131 S. Ct. at 1403. An attorney’s failure to reasonably

No. 09-5021 Hodges v. Colson Page 32

investigate the defendant’s background and present mitigating evidence to the jury at

sentencing can constitute ineffective assistance of counsel. Wiggins v. Smith, 539 U.S.

510, 521–22 (2003). However, “Strickland does not require counsel to investigate every

conceivable line of mitigating evidence no matter how unlikely the effort would be to

assist the defendant at sentencing.” Id. at 533. The court must consider not only the

evidence known to counsel, but also whether that evidence “would lead a reasonable

attorney to investigate further.” Id. at 527. “[I]f a habeas claim does not involve a

failure to investigate but, rather, petitioner’s dissatisfaction with the degree of his

attorney’s investigation, the presumption of reasonableness imposed by Strickland will

be hard to overcome.” Campbell v. Coyle, 260 F.3d 531, 552 (6th Cir. 2001) (internal

quotation marks omitted). “[T]here is no prejudice when the new mitigating evidence

‘would barely have altered the sentencing profile presented’ to the decisionmaker.”

Sears v. Upton, 130 S. Ct. 3259, 3266 (2010) (quoting Strickland, 466 U.S. at 700).

“Establishing that a state court’s application of Strickland was unreasonable

under § 2254(d) is all the more difficult.” Richter, 131 S. Ct. at 788. “The standards

created by Strickland and § 2254(d) are both highly deferential, and when the two apply

in tandem, review is doubly so.” Id. (internal quotation marks and citations omitted).

Therefore, “[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.” Id.

The state court record supports the conclusion that Hodges’s trial counsel

reasonably investigated Hodges’s background and presented mitigating evidence. The

Tennessee Supreme Court summarized the mitigation evidence presented at sentencing

as follows:

In mitigation, the defendant testified and also presented the testimony of

his mother, his brothers and Dr. Barry Nurcombe, a child psychiatrist.

This proof showed that the defendant was the next to youngest of his

mother’s five sons. His mother and father were not married. His father

was actually married to another woman, but engaged in what one of the

witnesses described as an “irregular union” with the defendant’s mother

for eighteen years. The defendant’s father abused the defendant’s mother

No. 09-5021 Hodges v. Colson Page 33

and was strict with the defendant’s brothers, three of whom were the

children of another man. The defendant, however, was his father’s

favorite and was spoiled. Financial difficulties forced the family to move

about frequently, and defendant’s father supported the family only

sporadically.

The defense introduced proof to show that Hodges seemed normal until

he was twelve years old. At that time, he began to associate with older

boys, sniff glue and gasoline, be truant from school, and run away from

home. He also engaged in sexual activities with his younger brother and

attempted sexual activities with a female cousin. He became involved

with the juvenile authorities and was confined to a juvenile facility in

Chattanooga.

Through his mitigation proof, the defendant attempted to establish that

a catalyst and major contributing cause of his delinquent and later

criminal behavior was his rape and sexual abuse by a stranger when he

was twelve years old. According to the defendant, he accepted a

stranger’s offer of a ride home when he was playing a short distance from

his home on Fessler’s Lane in Nashville. Rather than driving Hodges

home, the stranger drove Hodges to his home and raped him. Fearing

rejection by his homophobic father and driven by guilt, the defendant

told no one of this incident until he was arrested in 1990.

Dr. Nurcombe testified that, while the defendant suffered from an

antisocial personality disorder, low self-esteem, and substance

(marijuana) abuse, the killing was motivated by a subconscious desire for

revenge for the sexual abuse inflicted on him when he was twelve,

coupled with Hodges’ fear that his family might discover that he was

engaged in homosexual prostitution since Brown had told Hodge’s [sic]

sister-in-law shortly before the killing that he was a homosexual

prostitute. The defense also introduced testimony that Brown dominated

and manipulated the defendant.

In rebuttal the State called Dr. James Kyser, a forensic psychiatrist, and

Dr. Leonard Morgan, a clinical psychologist. Both had examined the

defendant and concluded that he suffered from an antisocial personality

disorder. They described persons with this disorder as having “no

conscience,” being “self centered,” being “notoriously dishonest and

untruthful,” and having “very little regard for the feelings of others and

. . . willing to use any means to get what they want, no matter who it

hurts.” While acknowledging the complicated factors involved in

antisocial personality disorders, the State’s experts discounted the

singular importance of the one incident of alleged sexual abuse in

causing the defendant’s actions. Dr. Morgan concluded that the

No. 09-5021 Hodges v. Colson Page 34

defendant “was in complete control of his behavior” and not suffering

from mental illness or emotional disturbance.

Hodges, 944 S.W.2d at 350–51. Because Hodges alleges that his trial counsel’s

mitigation case overlooked significant aspects of his background, the mitigation

testimony merits more detailed attention.

Dr. Nurcombe, head of child psychiatry at Vanderbilt Medical School, testified

that he specialized in juvenile delinquency and the effects of sexual abuse, and that he

had examined at least 500 children. To assess Hodges, Dr. Nurcombe reviewed his

school records, legal records, mental health records, and the results of an investigation

by a private investigation group concerning his family background. He also interviewed

Hodges for a total of nine hours on three occasions, and had a one-hour phone interview

with him. The mental health records available to Dr. Nurcombe included five

psychological tests from the age of twelve to late adolescence. He found no evidence

that Hodges was insane, but he did say that Hodges was not mentally healthy. He also

said that Hodges suffered from an antisocial personality disorder, low self-esteem, and

substance abuse.

In addition to Dr. Nurcombe, Hodges’s counsel presented six other witnesses at

sentencing: Hodges’s mother, three of his brothers, a neighbor, and Hodges himself. The

testimony generally showed that Hodges had a difficult childhood in a low-income,

dysfunctional family and that his behavior significantly worsened at the age of twelve,

around the time he claims to have been raped. However, Hodges himself admitted that

his parents treated him well, and that his mother took him for mental health treatment

many times.

At the state post-conviction proceeding, Hodges presented additional testimony.

He presented the testimony of his trial counsel, each of whom explained that they did not

sufficiently prepare for the sentencing phase of trial. He also presented the evidence of

Dr. Ann Charvet, a clinical sociologist, who explained that she did not think the

mitigation information she had compiled was used properly by the defense team, but was

unable to suggest any specific information that Dr. Nurcombe or other witnesses failed

No. 09-5021 Hodges v. Colson Page 35

to present to the jury. He presented the testimony of David Keefe, chief counsel of the

Tennessee District Public Defender’s Conference, who had reviewed Hodges’s counsel’s

representation and concluded that it was deficient. Hodges, 2000 WL 1562865, at *10.

And he presented the evidence of mitigation specialist Julie Hackenmiller, who holds

a masters degree in forensic psychology. She discussed mitigation themes that were not

developed at trial.

Although the evidence presented at the post-conviction proceeding shows that

trial counsel’s performance was not perfect, in light of the substantial and competent

evidence produced at the penalty phase of Hodges’s trial, Hodges has not shown that the

Tennessee state court’s decision that trial counsel’s performance was not deficient was

unreasonable. The burden of proof is on Hodges, Pinholster, 131 S. Ct. at 1398, and

under the “doubly deferential” standards imposed by § 2254(d) and Strickland, id. at

1403, Hodges has not carried that burden. Here, Hodges’s counsel retained a mitigation

specialist and several experts. Defense counsel obtained most of Hodges’s available

school, medical, and juvenile records. Dr. Nurcombe used those records and his

interviews with Hodges to diagnose him, testify at length about his background, and link

his homosexual rape at age twelve and his exposure as a homosexual prostitute to his

crime. The testimony of Hodges’s family members was consistent with Dr. Nurcombe’s

testimony and conclusions. And in post-conviction proceedings, Hodges identified little

information not considered by Dr. Nurcombe.

The circumstances of this case are similar to those considered by the Supreme

Court in Bobby v. Van Hook, 130 S. Ct. 13 (2009). There, the petitioner claimed that his

counsel were ineffective because their mitigation investigation was insufficient. Id. at

18. The Supreme Court disagreed, finding that although the petitioner was tried less

than three months after his indictment, trial counsel spoke with his parents, an aunt, and

a family friend; consulted with two expert witnesses; contacted the Veterans

Administration and sought medical records; and enlisted a mitigation specialist. Id.

Trial counsel also presented evidence that the petitioner began drinking and using drugs

as a child, witnessed his father abuse his mother, had violent fantasies, attempted suicide

No. 09-5021 Hodges v. Colson Page 36

five times, suffered from borderline personality disorder, consumed drugs and alcohol

on the day of the crime, and may have been motivated by a “homosexual panic.” Id. at

18–19. The Supreme Court rejected the petitioner’s argument that his counsel could

have found more mitigating evidence by interviewing other members of his extended

family and a psychiatrist who once treated his mother:

[T]here comes a point at which evidence from more distant relatives can

reasonably be expected to be only cumulative, and search for it

distractive from more important duties. . . . [I]t was not unreasonable for

[the petitioner’s] counsel not to identify and interview every other living

family member or every therapist who once treated his parents.

Id. at 19.

Here, given the mitigation evidence Hodges’s counsel gathered from his family

and Dr. Nurcombe’s review of his background, it was reasonable for counsel not to

identify and interview more distant family members or review their mental health. And

to the extent that Hodges argues that counsel were ineffective for relying on Dr.

Nurcombe, see Pet.’s Br. at 15 (describing Nurcombe as “a Court TV pundant [sic]”),

112 (Nurcombe “fail[ed] to conduct the sort of thorough personal history that is

necessary to come to an accurate diagnosis”), his argument fails because Hodges has not

shown that trial counsel had good reason to believe Dr. Nurcombe was incompetent, or,

for that matter, that he was incompetent.6 See Fautenberry v. Mitchell, 515 F.3d 614,

625 (6th Cir. 2008) (“[The petitioner] has not shown that counsel had good reason to

believe that [the expert] was incompetent, and we conclude that it was objectively

reasonable for counsel to rely upon the doctor’s opinions and conclusions.” (internal

quotation marks omitted)); Lundgren v. Mitchell, 440 F.3d 754, 772 (6th Cir. 2006)

(counsel’s reliance on mental health experts was reasonable because petitioner presented

no evidence that they were not competent); Clark v. Mitchell, 425 F.3d 270, 286 (6th

Cir. 2005) (counsel reasonably relied on the opinions of a psychologist and psychiatrist

in not seeking additional testing).

6

Indeed, we believe that the record shows that Dr. Nurcombe’s theory and testimony were

competent.

No. 09-5021 Hodges v. Colson Page 37

Where, as here, trial counsel puts on a reasonable mitigation case and presents

nearly all of the same information as presented by the petitioner’s post-conviction

experts, we cannot find deficient performance. And we certainly cannot find that the

state court’s decision that trial counsels’ performance was not deficient was

unreasonable. “As Strickland made clear, our role on habeas review is not to nitpick

gratuitously counsel’s performance. After all, the constitutional right at issue here is

ultimately the right to a fair trial, not to perfect representation.” Smith v. Mitchell, 348

F.3d 177, 206 (6th Cir. 2003) (citing Strickland, 466 U.S. at 684).

Because we find that trial counsel’s performance was not deficient, we need not

address whether Hodges was prejudiced by that performance. Hodges is not entitled to

habeas relief on this claim.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s denial of Hodges’s

petition for habeas relief.

No. 09-5021 Hodges v. Colson Page 38

____________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

____________________________________________________

HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part.

Because I conclude that the Tennessee courts unreasonably applied Strickland v.

Washington, 466 U.S. 668 (1984), I respectfully dissent from Part III of the majority

opinion.

A. Performance

The Supreme Court has explicitly approved using ABA Guidelines on attorney

performance in effect at the time of a defendant’s trial as “guides to determining what

is reasonable” performance by counsel. Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct.

1473, 1482 (2010); Rompilla v. Beard, 545 U.S. 374, 387 (2005); Wiggins v. Smith, 539

U.S. 510, 524 (2003); see also Bobby v. Van Hook, 558 U.S. 4, 130 S. Ct. 13, 16 (2009)

(per curiam). “ABA Guidelines are not ‘inexorable commands’; rather, they are ‘only

guides to what reasonableness means, not its definition.’” Post v. Bradshaw, 621 F.3d

406, 418 (6th Cir. 2010) (quoting Bobby, 130 S. Ct. at 17) (some internal quotation

marks omitted)). As discussed by the majority, the 1989 ABA Guidelines for the

Appointment and Performance of Counsel in Death Penalty Cases,1 which were in effect

at the time of Hodges’s 1992 trial, disapprove entering a guilty plea in a capital case

without the prosecution’s agreement not to seek the death penalty in exchange for the

guilty plea. The Guidelines state that “[i]t is suggested that [pleading a client guilty and

then putting on a contested penalty hearing] is an effective strategy only when the

attorney knows without any doubt that no death sentence will result. Any other

‘strategy’ for entering a guilty plea is ill-advised and should be abandoned.” ABA

Guidelines § 11.6.2 cmt. n.2 ) (emphasis in original) (quoting Dept. of Public Advocacy,

KENTUCKY PUBLIC ADVOCATE DEATH PENALTY MANUAL, p. 328–333

1

ABA Guidelines for the Appointment and Performance of Counsel

i n D e a t h P e n a l t y C a s e s ( 1 9 8 9 ) , a v a i l a b l e a t :

http://www.americanbar.org/content/dam/aba/migrated/DeathPenalty/RepresentationProject/PublicDoc

uments/1989Guidelines.authcheckdam.pdf

No. 09-5021 Hodges v. Colson Page 39

(1983)). Further, “[i]f no written guarantee can be obtained that death will not be

imposed following a plea of guilty, counsel should be extremely reluctant to participate

in a waiver of the client’s trial rights.” Id. § 11.6.3 cmt.; see also id. § 11.6.2 cmt.

(“Counsel should insist that no plea to an offense for which the death penalty can be

imposed will be considered without a written guarantee, binding on the court or other

final sentencer, that death will not be imposed.”).

“[I]n a capital case, counsel must consider in conjunction both the guilt and

penalty phases in determining how best to proceed.” Florida v. Nixon, 543 U.S. 175,

192 (2004). Donald Dawson, one of Hodges’s trial attorneys, testified in the post-

conviction proceeding in state trial court that the decision to have Hodges plead guilty

was made during the weekend prior to trial when the attorneys “sat down and pretty

much saw the guilt-innocence phase as hopeless.” J.A. at 1745. The attorneys were

“trying to figure out what was the way to limit the jurors[’] bad feelings about us [a]nd

[we] thought that by pleading guilty, we could give the defense some credibility.” Id.

at 1746; see also id. (“[W]e [thought we] could get the jury to sort of be thankful to us

that we didn’t make them sit through a guilt-innocence phase and we wouldn’t lose our

own credibility by arguing the guilt or innocence and we would have a better chance to

get a life verdict.”).

On its face, this appears to be the sort of strategic trial decision owed deference

under Strickland. However, Dawson also testified that the defense team did “[n]ot

adequately” think through the decision to plead guilty: “we never sat down and did an

analysis of what are the benefits of going to trial, what are the deficits and where did that

lead us.” Id. Dawson testified that at the time of trial, the defense team had not read

available literature setting out standards for adequate representation in capital cases. Id.

at 1747. In particular, the attorneys were unfamiliar with “the advantages of putting [on]

a defense [in the guilt phase] consistent with your mitigation theory.” Id. They also

failed to appreciate the advantages of “hav[ing] the jury . . . have a chance to look at

your client longer and find him guilty[,] [a]nd then decide [‘]now that we find him

guilty, let’s see . . . [w]hat is the proper sentencing[’].” This would allow the jury to not

No. 09-5021 Hodges v. Colson Page 40

view the penalty phase as its only opportunity to pass judgment on the defendant’s

actions. Id. at 1748; see also id. at 1841–43 (post-conviction hearing testimony of

Michael Terry). The attorneys conducted no legal research into proper considerations

in deciding whether to plead guilty, and did not weigh the possible benefits of putting

on a case at the guilt phase of trial. Id. at 1748–1751; see also id. at 1839 (testimony of

Michael Terry).

Dawson also testified that nearly all of the evidence that he and the other

attorneys hoped to keep out by pleading guilty came in anyway at the sentencing phase,

as should have been clear from an analysis of Tennessee law. Id. at 1752–53. Finally,

Dawson stated that when he advised Hodges to plead guilty, the attorneys had “totally

forgotten” about the third count of the indictment, aggravated robbery, a conviction of

which constituted an aggravating factor for purposes of the penalty phase. Id. at

1756–57. In fact, Dawson did not “recall having talked to Mr. Hodges at all about

pleading to the robbery.” Id. at 1757. Both Dawson and co-trial-counsel Michael Terry

stated that pleading guilty was a mistake. Id. at 1755, 1762–63, 1842. Terry stated that

he “would not plead a capital defendant guilty again in any case.” Id. at 1842.

Additionally, in the post-conviction hearing, the court heard testimony from

David Keefe, chief counsel for the capital division of the Tennessee District Public

Defender’s Conference, who examined the conduct of Hodges’s trial counsel at the

request of Hodges’s post-conviction attorneys. Keefe testified that he “believed the

decision to plead guilty was wrong and hastily made. He opined that, by pleading guilty,

the defense team confused the jury and lost an array of appellate issues.” Hodges,

2000 WL 1562865, at *10. Thus, although the decision to plead guilty was indeed a

“strategic” decision designed to curry favor with the jury and limit the prosecution’s

presentation of evidence, it was not intelligently made based on a weighing of the

advantages and disadvantages of going to trial in the guilt phase, and was made without

reference to secondary authorities providing standards for representation in death penalty

cases. Further, the strategy was ill-designed to achieve one of its primary aims: limiting

presentation of damaging evidence about the crime. Therefore, advising Hodges to

No. 09-5021 Hodges v. Colson Page 41

plead guilty was inconsistent with the prevailing standard of competent representation

in death penalty cases.

Post v. Bradshaw, 621 F.3d 406 (6th Cir. 2010), discussed by the majority, is

distinguishable. In Post, the defendant “refused to plead guilty, despite the State’s offer

of a life sentence in return for a guilty plea.” Id. at 417. The case addressed the question

whether the decision to enter a no-contest plea and to submit the penalty phase to a

three-judge panel rather than a jury was objectively reasonable. The court concluded

that the defendant’s weak mitigation evidence made the attorneys’ decision to forgo the

right to a penalty-phase jury reasonable. Id. The Post court thus stated that “Post’s

counsel were between a rock and a hard place in determining the best way to spare him

a death sentence, given the overwhelming evidence of his guilt, his numerous

confessions, and his refusal to plead guilty.” Id. at 418. Although these considerations

are similar to those facing Hodges’s attorneys, the Post decision does not suggest that

defense counsel failed to appreciate the import of their decision. Indeed, the opinion

indicates that counsel weighed the pros and cons of pleading no contest and putting the

case before a three-judge panel instead of a jury. Id. Further, part of the rationale

advanced by the Post court in justifying counsel’s decision was that “[b]y pleading no

contest, [Post] would ‘avoid[ ] the ordeal’ of a guilt phase and have his sentence

‘determined without the sentencing court hearing all of the adverse testimony that would

be produced at trial.’” Id. at 417 (quoting ABA Standards for Criminal Justice 4–6.1

cmt. (2d ed. 1980) (“The Defense Function”) (emphasis and third bracket added by

Post)). Although Hodges’s defense team intended their decision to plead guilty to have

the same effect, in reality nearly all of the testimony that would have been introduced

at trial was introduced during the penalty phase. The miscalculation was not a matter

of a sound decision turning out to be a mistake in hindsight. Rather, the decision had no

legal support and was clearly a mistake in the first place. Hodges’s attorneys hoped that

pleading guilty would be a beneficial strategy, but had little sound reasoning behind this

belief. See Post, 621 F.3d at 428 (Cole, J., dissenting) (“I believe that the Constitution

requires attorneys to make strategic judgments based on something more concrete than

unsubstantiated hope, especially when their client’s life hangs in the balance.”).

No. 09-5021 Hodges v. Colson Page 42

Nixon is also distinguishable. In Nixon, defense counsel was faced with

overwhelming evidence of Nixon’s guilt. After a failed attempt to negotiate a guilty plea

in exchange for the prosecutor dropping the death penalty, defense counsel “concluded

that the best strategy would be to concede guilt, thereby preserving his credibility in

urging leniency during the penalty phase.” Nixon, 543 U.S. at 181. Instead of advising

his client to enter a guilty plea, however, defense counsel decided to proceed to the guilt

phase of trial, but to concede Nixon’s guilt to the jury. In opening statement, defense

counsel “acknowledged Nixon’s guilt and urged the jury to focus on the penalty phase.”

Id. at 182. The prosecution introduced extensive evidence of Nixon’s guilt during the

guilt phase. Defense counsel “cross-examined [the prosecution’s] witnesses only when

he felt their statements needed clarification, . . . and he did not present a defense case.”

Id. at 183. He also objected to some evidence as unduly prejudicial. “In his closing

argument, [defense counsel] again conceded Nixon’s guilt, and reminded the jury of the

importance of the penalty phase.” Id. (internal citation omitted). The jury found Nixon

guilty, and the case proceeded to the penalty phase, at which defense counsel presented

testimony of a number of witnesses. Id. at 183–84. Importantly, “[t]he State presented

little evidence during the penalty phase, simply incorporating its guilt-phase evidence

by reference.” Id. at 184.

The Nixon Court did not address the issue presented here. In fact, counsel in

Nixon did exactly what Hodges’s counsel now concede they should have done. In

approving of Nixon’s attorney’s strategic decision, the Court discussed the downside to

pleading guilty in lieu of going to trial at the guilt phase:

As [defense counsel] determined here, pleading guilty without a

guarantee that the prosecution will recommend a life sentence holds little

if any benefit for the defendant. See ABA Guidelines for the

Appointment and Performance of Defense Counsel in Death Penalty

Cases § 10.9.2, Commentary (rev. ed. 2003), reprinted in 31 Hofstra L.

Rev. 913, 1045 (2003) (“If no written guarantee can be obtained that

death will not be imposed following a plea of guilty, counsel should be

extremely reluctant to participate in a waiver of the client’s trial rights.”).

Pleading guilty not only relinquishes trial rights, it increases the

likelihood that the State will introduce aggressive evidence of guilt

during the sentencing phase, so that the gruesome details of the crime are

No. 09-5021 Hodges v. Colson Page 43

fresh in the jurors’ minds as they deliberate on the sentence. See [Gary]

Goodpaster, [The Trial for Life: Effective Assistance of Counsel in Death

Penalty Cases], 58 N.Y.U. L. Rev. 299, 331[,] 558–59, 560–61 [(1983)].

543 U.S. at 191 n.6 (citation altered). Had Hodges’s counsel acted as Nixon’s did by

proceeding to trial and acknowledging guilt rather than pleading guilty, there would have

been no constitutionally deficient performance.

Addressing Hodges’s Strickland claim, the Tennessee Court of Criminal Appeals

reasoned:

Although it is true that the appellant ultimately gained nothing by

pleading guilty, the record persuasively demonstrates that the appellant

had little to gain by insisting upon a trial. It is undisputed that the

evidence against the appellant was overwhelming and that his chances of

acquittal were virtually non-existent. Indeed, in advising the appellant,

defense counsel was faced with two options: plead not guilty to the

indictment and face a full trial; or plead guilty to the indictment and face

limited evidence in a sentencing hearing with an opportunity to trade on

his acceptance of his guilt and remorse. Confronted with the

overwhelming evidence of the appellant’s guilt, defense counsel advised

the appellant to plead guilty in the reasonable hope of obtaining leniency

during the sentencing phase. Defense counsel reasonably believed that

the jury would view the appellant’s guilty plea as an expression of

remorse warranting a less severe sentence than that imposed upon a

defendant who protests his innocence in the face of overwhelming

evidence of guilt. Moreover, by pleading guilty, the appellant eliminated

the presentation to the jury of all of the evidence available to establish

the appellant’s guilt of the murder. The hard callous facts behind the

offenses, in essence, were desensitized by avoiding the guilt phase. The

absence of an in-depth recitation of facts enabled the appellant to seek

some sympathy from the jury in the face of mitigating evidence.

Hodges v. State, 2000 WL 1562865, at *20 (Tenn. Crim. App. 2000). The court

reasonably pointed to Hodges’s counsel’s “hope of obtaining leniency during the

sentencing phase” as a legitimate justification for pleading guilty. Id. However, the

other reasons advanced in support of counsel’s decision lack support in the record. Most

of the evidence of the circumstances of the murder was allowed in the penalty phase, and

the “hard callous facts behind the offense” were not “desensitized by avoiding the guilt

No. 09-5021 Hodges v. Colson Page 44

phase.” Rather, those newly-presented facts were fresh in jurors’ minds when they

deliberated over imposition of the death penalty. As Gary Goodpaster observed:

[G]oing through a guilt phase trial helps to segregate and distance from

the sentencer the prosecution's strongest case against the defendant.

Were defendant simply to admit guilt and go straight to the penalty phase

trial, the prosecution at that time would undoubtedly present much of

what it otherwise would have presented during the guilt phase.

Goodpaster, 58 N.Y.U. L. Rev. at 331. Hodges’s counsel did not consider the

ramifications of pleading guilty rather than proceeding to the guilt phase of the trial.

Much of the evidence they hoped to exclude was admissible under Tennessee law.

Counsel admitted forgetting about the aggravated robbery charge, itself an aggravating

factor once Hodges pleaded guilty. Although I am mindful of the deference due to the

state court under AEDPA, I must conclude that the decision that counsel met minimum

constitutional standards involved an unreasonable application of clearly established

federal law.

B. Prejudice

In order to demonstrate prejudice, “the defendant must show that there is a

reasonable probability that, but for counsel's errors, he would not have pleaded guilty

and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

The majority is correct that Hodges himself has never stated that, but for his

counsel’s deficient advice, he would not have pleaded guilty and would have insisted on

going to trial. Additionally, Hodges’s habeas petition alleged that counsel’s advice to

plead guilty constituted ineffective assistance, but did not specifically state that, had

counsel advised him otherwise, he would not have pleaded guilty. Hodges’s brief on

appeal states simply that “where Mr. Hodges had nothing to gain by pleading guilty, he

certainly would not have entered a guilty plea if his lawyers had given him accurate

information – in fact, had Mr. Hodges’s lawyers done their research, they wouldn’t have

advised Mr. Hodges to plead guilty at all.” (Opening Br. of Appellant 83.) However,

this is not the typical guilty plea case.

No. 09-5021 Hodges v. Colson Page 45

As the majority correctly notes, Hodges was not protesting his innocence leading

up to trial. Rather, he had admitted his guilt in one or more television interviews and in

letters to the prosecution and the trial court (against the advice of counsel). See J.A. at

1704, 1786 (testimony of Donald Dawson). This certainly suggests that Hodges was

ready to plead guilty, and that he would have been convicted had he pleaded not guilty.

That, however, does not settle the issue. The issue here is not whether counsel were

competent in their assessment and advice regarding the likelihood of conviction at trial,

but rather in advising that there were significant benefits to forgoing trial. See Griffin

v. United States, 330 F.3d 733, 737 (6th Cir. 2003) (noting that it is “easier to show

prejudice in the guilty plea context” than in other contexts “because the claimant need

only show a reasonable probability that he would have pleaded differently”).

In Hill, the Court stated that “where the alleged error of counsel is a failure to

investigate or discover potentially exculpatory evidence, the determination whether the

error ‘prejudiced’ the defendant by causing him to plead guilty rather than go to trial will

depend on the likelihood that discovery of the evidence would have led counsel to

change his recommendation as to the plea.” 474 U.S. at 59. Hodges’s claim here is not

that counsel failed to investigate or discover potentially exculpatory evidence that would

have led him to change his plea, so this language from Hill is not squarely on point.

Hodges’s claim is, however, that counsel failed to adequately consider the benefits of

going to trial, and based their decision to advise him to plead guilty on an erroneous

understanding of the consequences of a guilty plea at sentencing and insufficient legal

research and investigation into the proper conduct of a capital case. This parallels the

reasoning of Hill. Hodges’s two primary trial attorneys both testified that had they been

aware of the proper standards for death penalty representation and had they accurately

considered the drawbacks to pleading guilty, they would have advised Hodges to go to

trial. J.A. at 1755, 1842. Thus, there is compelling evidence that counsel would have

“changed [their] recommendation as to the plea.” Hill, 474 U.S. at 59.

The ultimate question under Strickland and Hill is whether the defendant has

“established the reasonable probability that he would not have entered his plea but for

No. 09-5021 Hodges v. Colson Page 46

his counsel’s deficiency.” Premo v. Moore, 131 S. Ct. 733, 744 (2011) (emphasis

added). Although Hodges has not stated under oath that he would not have pleaded

guilty if his counsel had advised against it, counsel’s testimony that they would have

advised him against pleading guilty establishes the requisite “reasonable probability” of

a different outcome. This is not a case where the decision to plead guilty or not guilty

was based on the likelihood of conviction versus acquittal. Rather, the choice was made

on the likely effect of the choice on the outcome of the penalty phase, and it is clear that

counsel’s advice in this regard was constitutionally ineffective. Had Hodges’s counsel

advised him to plead not guilty, there is no reason to think he would not have heeded

their advice. His conduct during the penalty phase, including taking the stand to provide

testimony about his background in order to establish mitigating factors, demonstrates

that he preferred a sentence of life imprisonment over death. Had his counsel informed

him that the better strategy for achieving this outcome was to plead not guilty and go to

trial in the guilt phase, there is more than a reasonable probability that Hodges would

have taken their advice.

In sum, although the Supreme Court recently cautioned that “hindsight cannot

suffice for relief when counsel’s choices [to advise the defendant to plead guilty] were

reasonable and legitimate based on predictions of how the trial would proceed,” and that

“[t]here is a most substantial burden on the claimant to show ineffective assistance” in

that situation, Premo, 131 S. Ct. at 745, counsel’s choices here were based on

unreasonable predictions about how the penalty phase would proceed, particularly about

how pleading guilty would affect the prosecution’s ability to present damaging evidence

about the details of the crime, and a complete failure to consider the benefits of going

through the guilt phase. Further, Hodges has made an adequate showing of prejudice.

Because I conclude that the state court unreasonably applied Strickland, I

respectfully dissent from Part III of the majority’s opinion and would grant Hodges’s

petition for habeas corpus on this issue.