William Thompson v. Philip Parker

RECOMMENDED FOR FULL-TEXT PUBLICATION

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

File Name: 17a0178p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WILLIAM EUGENE THOMPSON, ┐

Petitioner-Appellant, │

│

> No. 13-6085

v. │

│

│

PHILIP W. PARKER, Warden, │

Respondent-Appellee. │

┘

Appeal from the United States District Court

for the Western District of Kentucky at Paducah.

No. 5:11-cv-00031—Thomas B. Russell, District Judge.

Argued: October 19, 2016

Decided and Filed: August 14, 2017

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

_________________

COUNSEL

ARGUED: Dennis J. Burke, DEPARTMENT OF PUBLIC ADVOCACY, La Grange,

Kentucky, for Appellant. Jason Bradley Moore, OFFICE OF THE KENTUCKY ATTORNEY

GENERAL, Frankfort, Kentucky, for Appellee. ON BRIEF: Dennis J. Burke, Krista A. Dolan,

DEPARTMENT OF PUBLIC ADVOCACY, La Grange, Kentucky, for Appellant. James Hays

Lawson, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for

Appellee.

No. 13-6085 Thompson v. Parker Page 2

_________________

OPINION

_________________

BOGGS, Circuit Judge. In 1986, Petitioner William Thompson, having served twelve

years of a life sentence for an unrelated murder for hire, killed his prison-farm supervisor, stole

his wallet, keys, and pocketknife, and fled. Thompson was captured at a bus station in

Madisonville, Kentucky, and charged with murder, robbery, and escape, for which he was tried

by jury and sentenced to death, twenty years, and ten years, respectively. Because the trial court

abused its discretion in refusing to excuse certain jurors from the case and because Thompson’s

prior conviction for murder was improperly used as an aggravating circumstance, Thompson was

granted a retrial on direct appeal. Thompson v. Commonwealth, 862 S.W.2d 871, 877 (Ky.

1993). In 1995, on retrial, Thompson pleaded guilty to all three counts as part of a plea

agreement to avoid jury sentencing. The Commonwealth sought jury sentencing anyway, the

trial court denied the request, the Commonwealth appealed, and the court of appeals ruled that

the Commonwealth was entitled to jury sentencing despite the plea agreement. Commonwealth

v. Thompson, No. 95-CA-0136-MR (Ky. Ct. App. June 10, 1996) (unpublished). The jury

returned a death-penalty verdict, finding two aggravating factors: (1) Thompson had previously

committed a murder, and (2) Thompson committed the present murder against a prison guard

while in prison. The trial court accordingly sentenced Thompson to death.

In state post-conviction habeas corpus proceedings, Thompson succeeded on his claim

that the trial court had failed to hold a mandatory competency hearing. Thompson v.

Commonwealth, 56 S.W.3d 406, 407, 410 (Ky. 2001). Thompson was unsuccessful on all his

other state claims for relief, however, and after the trial court held the required competency

hearing and found that Thompson had been competent to plead guilty, the Kentucky Supreme

Court affirmed Thompson’s convictions and sentences. Thompson v. Commonwealth,

147 S.W.3d 22, 34, 55 (Ky. 2004), reh’g denied (Nov. 18, 2004), cert. denied, 545 U.S. 1142

(2005). The Kentucky Supreme Court also affirmed the denial of Thompson’s motion to vacate,

set aside, or correct his sentence under Ky. R. Crim. P. 11.42. Thompson v. Commonwealth,

No. 2009-SC-000557-MR, 2010 WL 4156756, at *1, *5 (Ky. Oct. 21, 2010, as modified on

No. 13-6085 Thompson v. Parker Page 3

denial of reh’g, Jan. 20, 2011) (“Rule 11.42 proceedings”). Thompson then filed a federal

habeas corpus petition raising seven claims:

(1) the jury considered extraneous evidence;

(2) trial counsel rendered ineffective assistance;

(3) the prosecutor made improper closing arguments to the jury;

(4) the trial court improperly restricted Thompson’s voir dire questioning;

(5) in violation of Mills v. Maryland, 486 U.S. 367, 384 (1988), the penalty-phase jury

instructions implied that certain mitigators had to be found unanimously to be

considered;

(6) the Kentucky Supreme Court’s proportionality-review process is unconstitutional; and

(7) the cumulative effect of the errors at trial denied Thompson his constitutional rights.

R. 13 at 12–59.

The district court heard and denied Thompson’s federal habeas petition, from which

Thompson now appeals on the first, fifth, and sixth grounds. Thompson claims that (1) the jury

improperly considered extraneous evidence when it discussed a news account about another

violent criminal who had committed a murder after earning parole at age seventy; (2) the jury

instructions violated Mills v. Maryland, 486 U.S. 367 (1988) because they stated that the

“verdict” had to be returned unanimously but did not expressly state that unanimity was not

required in order for a juror to find a mitigating factor, potentially leading jurors wrongly to infer

that finding at least some mitigating factors also required unanimity; and (3) the Kentucky

Supreme Court did not adequately conduct a comparative-proportionality review in assessing

whether Thompson’s death sentence was excessive or disproportionate to the penalty imposed in

similar cases. For the reasons that follow, we affirm.

I

As a threshold matter, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of

1996, which amended 28 U.S.C. § 2254, governs our review of the Kentucky Supreme Court’s

denial of post-conviction relief because Thompson filed his federal petition after AEDPA’s

effective date, even though Thompson’s conviction arises out of a 1986 homicide. See Lindh v.

Murphy, 521 U.S. 320, 326–27 (1997). AEDPA sets forth “an independent, high standard to be

No. 13-6085 Thompson v. Parker Page 4

met before a federal court may issue a writ of habeas corpus to set aside state-court rulings.”

Uttecht v. Brown, 551 U.S. 1, 10 (2007). Under AEDPA, for any “claim that was adjudicated on

the merits” by Kentucky state courts, we defer to the state courts’ factual determinations, we may

not expand the record beyond that which the state courts reviewed, Cullen v. Pinholster,

563 U.S. 170, 181 (2011), and we may grant habeas relief only if the adjudication of that claim

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

clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d) (emphases added).

“A state court’s determination that a claim lacks merit precludes habeas relief so long as

‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v.

Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

The “contrary to” and “unreasonable application” clauses of § 2254(d)(1) are

independent of each other: a state-court decision is “contrary to” clearly established federal law

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, 405 (2000). A state

court’s ruling is an “unreasonable application” of clearly established federal law, on the other

hand, “if the state court identifies the correct governing legal rule” or principle from Supreme

Court precedent but “applies it to the facts of the particular state prisoner’s case” in an

unreasonable manner, including by “unreasonably extend[ing]” or “unreasonably refus[ing] to

extend” the principle. Id. at 407. In both cases, in identifying governing legal rules, we may

look only to the holdings of the Supreme Court’s decisions, not the dicta. White v. Woodall,

134 S. Ct. 1697, 1702 (2014).

With these parameters in mind, we proceed to the merits of Thompson’s claims.

No. 13-6085 Thompson v. Parker Page 5

II

Extraneous Evidence

Thompson argues that, in violation of his Sixth and Fourteenth Amendment rights, his

jurors improperly considered extraneous evidence: a news account (read, seen, or heard by one

of them or, perhaps, heard about by one of them) concerning another violent criminal who had

been imprisoned and yet committed a murder after being paroled at age 70. Thompson argues

that discussion of this news account played on jurors’ fears that, if Thompson was ever released

from prison, he would still be a danger to society no matter his age.1 Thompson’s proof that

jurors discussed the news account during deliberations included an affidavit from the jury

foreman and the foreman’s testimony at an evidentiary hearing.

In the Rule 11.42 proceedings, the state supreme court held that Thompson’s extraneous-

evidence claim was barred because it could or should have been raised on direct appeal,

Thompson, 2010 WL 4156756, at *5, but the Warden in federal habeas proceedings conceded

that it was not barred—and indeed, that none of Thompson’s claims were barred whether for

failure to exhaust, procedural default, or otherwise. R. 19 at 2. The district court agreed that this

claim was not barred:

Thompson contends, and Respondent acknowledges, that this claim was not

procedurally defaulted because the Kentucky Supreme Court does not regularly

follow the procedural rule it applied to deny Thompson’s claim without reaching

the merits. Thompson’s claim is not a claim that he could have and should have

raised on direct appeal, and Kentucky courts do allow such claims to be brought

in a RCr 11.42 motion. See Bowling v. Commonwealth, 168 S.W.3d 2, 9–10 (Ky.

2004). Therefore, Thompson’s claim is not procedurally defaulted. See Maupin v.

Smith, 785 F.2d 135, 138 (6th Cir. 1986).

R. 30 at 5.

The district court then held, correctly, that because the Kentucky courts had not

adjudicated this claim on the merits, AEDPA deference did not apply. Ibid.; see Maples v.

Stegall, 340 F.3d 433, 436 (6th Cir. 2003). Further, because Thompson did not lack diligence in

1

At the time of Thompson’s trial, the severest non-capital sentence for which he was eligible was life

without the possibility of parole for twenty-five years. See Thompson, 2010 WL 4156756, at *3.

No. 13-6085 Thompson v. Parker Page 6

developing the factual record in state court, the district court was permitted to hold an

evidentiary hearing as to this claim, and to cite the facts developed at that hearing. See

Pinholster, 563 U.S. at 184.

At the evidentiary hearing (which, of course, was held fourteen years after the jury trial),

the jury foreman testified that he did not remember details of the deliberations but that the news

account “was brought up probably after two or three votes or whatever . . . I just remember it was

brought up and that was it.” R. 42 at 13. The foreman testified that “it was probably a 9-to-3 or

8-to-4 . . . vote at that time, and there was three holdouts or whatever to the end until the last

vote. And it was probably brought up sometime during that period.” Id. at 14. The foreman

testified that no one physically brought newspaper articles or anything similar into the jury room,

but rather that someone had mentioned the story in the course of the jury’s deliberations. The

district court denied relief, holding that “[a] discussion of a news story about an unrelated crime

does not constitute extrajudicial evidence which would set aside a verdict.”

We review the district court’s denial of habeas relief de novo, Bigelow v. Williams,

367 F.3d 562, 569 (6th Cir. 2004), and we affirm.

Under the Sixth and Fourteenth Amendments, a criminal defendant is entitled to “a fair

trial by a panel of impartial, ‘indifferent’ jurors.” Morgan v. Illinois, 504 U.S. 719, 726–27

(1992) (quoting Irvin v. Dowd, 366 U.S. 717, 722 (1961)). “In the language of Lord Coke, a

juror must be as ‘indifferent as he stands unsworne.’ Co. Litt. 155b. His verdict must be based

upon the evidence developed at the trial,” id. at 727, without regard to any extraneous influences.

See Smith v. Phillips, 455 U.S. 209, 217 (1982) (“Due process means a jury capable and willing

to decide the case solely on the evidence before it . . . .”); Sheppard v. Maxwell, 384 U.S. 333,

351, 362 (1966) (“Due process requires that the accused receive a trial by an impartial jury free

from outside influences”; the jury’s verdict must be based on “evidence received in open court,

not from outside sources”).

But impartiality and indifference do not require ignorance. Because “jurors will have

opinions from their life experiences, it would be impractical for the Sixth Amendment to require

that each juror’s mind be a tabula rasa.” United States v. Jones, 716 F.3d 851, 857 (4th Cir.

No. 13-6085 Thompson v. Parker Page 7

2013). Indeed, it would not only be impractical but also undesirable: for jurors to evaluate the

evidence before them and do their job intelligently, they must take into account rather than

ignore what general knowledge they may have gained from their life experiences.

So far from laying aside their own general knowledge and ideas, the jury should

have applied that knowledge and those ideas to the matters of fact in evidence in

determining the weight to be given to the opinions expressed; and it was only in

that way that they could arrive at a just conclusion. While they cannot act in any

case upon particular facts material to its disposition resting in their private

knowledge, but should be governed by the evidence adduced, they may, and to act

intelligently they must, judge of the weight and force of that evidence by their own

general knowledge of the subject of inquiry.

Head v. Hargrave, 105 U.S. 45, 49 (1881) (emphases added).

There is thus a bright line, and rightly so, between, on the one hand, jurors’ taking into

account “their own wisdom, experience, and common sense,” Doan v. Brigano, 237 F.3d 722,

734 (6th Cir. 2001), overruled on other grounds by Wiggins v. Smith, 539 U.S. 510 (2003), when

evaluating the evidence admitted at trial, and, on the other hand, jurors’ employing extraneous

evidence such as news reports of the case being decided by the jurors, e.g., Nevers v. Killinger,

169 F.3d 352, 366 (6th Cir. 1999), abrogated on other grounds by Harris v. Stovall, 212 F.3d

940, 942–43 (6th Cir. 2000); or physical news items being brought into the jury room, e.g., Wiley

v. State, 332 S.W.2d 725, 726 (Tex. Crim. App. 1960) (reversing death sentence where one juror

brought in a local newspaper clipping containing a recent news story, which the foreman read

aloud to the jury and which began: “Tom Ainsworth, 40, convicted murderer from Cut’n Shoot,

celebrated the end of his parole Thursday night by buying a jug of gin and then killing a man”);

Waldorf v. Shuta, 3 F.3d 705, 710–11 (3d Cir. 1993) (jurors were “reading, commenting [on,]

and circulating” a highly prejudicial New York Post article in the jury room).

Thompson relies principally on Nevers and on various decisions of our sister circuits such

as Waldorf. But none of Thompson’s cited authorities support the proposition that merely

discussing a news story about another case that one or some of the jurors might have read or

seen or heard about is analogous either to seeing extraneous reports about the case the jurors are

deciding or to having physical news items such as newspaper clippings either provided to jurors

or brought into the jury room by jurors.

No. 13-6085 Thompson v. Parker Page 8

The jury’s sole task in this case was to set Thompson’s punishment. Its options were to

impose a term of imprisonment for a number of years no less than twenty, a life sentence with

the possibility of parole, or a death sentence. Surely, the jury’s deliberations would naturally

include discussing such considerations as the likelihood that Thompson, if released even at an

old age, would kill again. And in the context of such deliberations, the jurors’ general

knowledge about recidivism, even if it includes recollections of unrelated news coverage of other

crimes, is fair game for discussion.

To hold otherwise would have curious (and undesirable) implications about the sort of

“evidence” that might be considered extraneous. What if, for example, a juror were an actuary

who had general knowledge of the life expectancy of someone similarly situated to the

defendant: would that juror’s discussion of the defendant’s odds of reoffending be “extraneous

evidence” and thus violate the defendant’s constitutional rights? Or, what if the jurors in this

case, instead of discussing a news story, had discussed a story that had been related in a novel?

Would all general knowledge gleaned from reading books be considered “extraneous evidence”?

Or only from reading nonfiction books?

It therefore makes sense that, at a minimum, to be considered extraneous evidence, the

evidence must either relate to the case that the jurors are deciding or be physically brought to the

jury room or disseminated to the jury. Cf. Warger v. Shauers, 135 S. Ct. 521, 529 (2014)

(holding, in a civil case, that “‘[e]xternal’ matters include publicity and information related

specifically to the case the jurors are meant to decide, while ‘internal’ matters include the general

body of experiences that jurors are understood to bring with them to the jury room”).

III

Jury Instructions

Thompson’s next claim is that his jury instructions, in violation of the Eighth

Amendment as interpreted in Mills v. Maryland, 486 U.S. 367, 384 (1988), improperly implied

that the jury had to find mitigating factors unanimously in order to consider them. This claim is

subject to AEDPA deference because the state supreme court reached the merits in rejecting it.

Thompson, 147 S.W.3d at 47–48 (holding, in the alternative, that this claim was both

No. 13-6085 Thompson v. Parker Page 9

unpreserved and meritless). The district court denied Thompson’s claim and we review that

denial de novo. Bigelow, 367 F.3d at 569.

The Eighth Amendment requires the jury to have the ability “to consider and give effect

to all relevant mitigating evidence” offered by the defendant. Boyde v. California, 494 U.S. 370,

377–78 (1990). To that end, it is unconstitutional for a state to require jurors to agree

unanimously on the existence of a mitigating factor. Mills, 486 U.S. at 384. In Mills, the verdict

form stated: “Based upon the evidence we unanimously find that each of the following mitigating

circumstances which is marked ‘yes’ has been proven to exist . . . and each mitigating

circumstance marked ‘no’ has not been proven . . . .” Id. at 387 (emphasis added). The verdict

form contained a list of seven potentially mitigating circumstances and an eighth marked “other.”

Ibid. Next to each was written “yes” or “no,” and the jury was to indicate its finding. Ibid. The

Supreme Court rejected these instructions because the jury could not find any mitigator to exist

unless the jurors agreed unanimously that that mitigator existed. Id. at 377–84; see also United

States ex rel. Kubat v. Thieret, 679 F. Supp. 788, 813 (N.D. Ill. 1988) (“If . . . you unanimously

conclude that there is a sufficiently mitigating factor or factors to preclude imposition of the

death sentence, you should sign the form which so indicates.” (emphasis omitted)) (following

Mills), aff’d, 867 F.2d 351 (7th Cir. 1989).

Our court has held that “the proper inquiry” under Mills “is whether a reasonable jury

might have interpreted the instructions in a way that is constitutionally impermissible.” Coe v.

Bell, 161 F.3d 320, 337 (6th Cir. 1998). But the Supreme Court has made clear that what

violates the Eighth Amendment is requiring jurors to find mitigators unanimously—not, for

example, requiring jurors to weigh aggravators against mitigators and find unanimously that the

aggravators outweigh the mitigators. See Smith v. Spisak, 558 U.S. 139, 147–48 (2010). In

Spisak,

The judge gave the jury two verdict forms for each aggravating factor. The first

of the two forms said:

“‘We the jury in this case . . . do find beyond a reasonable doubt

that the aggravating circumstance . . . was sufficient to outweigh

the mitigating factors present in this case.

No. 13-6085 Thompson v. Parker Page 10

“‘We the jury recommend that the sentence of death be

imposed . . . .’”

The other verdict form read:

“‘We the jury . . . do find that the aggravating circumstances . . .

are not sufficient to outweigh the mitigation factors present in this

case.

“‘We the jury recommend that the defendant . . . be sentenced to

life imprisonment . . . .’”

The instructions and forms made clear that, to recommend a death sentence, the

jury had to find, unanimously and beyond a reasonable doubt, that each of the

aggravating factors outweighed any mitigating circumstances. But the

instructions did not say that the jury must determine the existence of each

individual mitigating factor unanimously. Neither the instructions nor the forms

said anything about how—or even whether—the jury should make individual

determinations that each particular mitigating circumstance existed. They focused

only on the overall balancing question. And the instructions repeatedly told the

jury to “conside[r] all of the relevant evidence.” In our view the instructions and

verdict forms did not clearly bring about, either through what they said or what

they implied, the circumstance that Mills found critical, namely,

“a substantial possibility that reasonable jurors, upon receiving the

judge’s instructions in this case, and in attempting to complete the

verdict form as instructed, well may have thought they were

precluded from considering any mitigating evidence unless all

12 jurors agreed on the existence of a particular such

circumstance.”

We consequently conclude that the state court’s decision upholding these forms

and instructions was not “contrary to, or . . . an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the

United States” in Mills.

Id. at 147–49.

Thompson’s jury instructions were worded far more closely to those in Spisak than to

those in Mills. Indeed, Thompson himself characterizes his jury instructions as requiring the

“verdict” to be unanimous but being “silent as to the [sic] whether the finding of aggravating and

mitigating circumstances had to be unanimous, improperly impl[ying]that the finding of

mitigating factors by the jury had to be unanimous.” Pet’r’s Br. 4–5 (emphasis added).

Thompson’s argument is that the instructions, in using the word “you,” were ambiguous and on

No. 13-6085 Thompson v. Parker Page 11

the whole implied that “you the jury” rather than “you the juror” had to find mitigators to exist.

Unlike the instructions in Mills, however, nothing expressly required the jury to find mitigating

factors unanimously. And we have previously upheld an instruction “that an aggravating factor

had to be found unanimously, but [that] was silent with regard to how many had to agree in

finding a mitigating factor.” Kordenbrock v. Scroggy, 919 F.2d 1091, 1120 (6th Cir. 1990) (en

banc) (Kennedy, J., writing for the majority on this issue). Thompson’s jury instructions

required that “the jury find beyond a reasonable doubt” that an aggravating circumstance or

circumstances existed.

We noted at oral argument, however, that—although not raised by Thompson or

addressed by the district court—one of Thompson’s jury instructions actually used the phrase

“you the jury” (rather than only “you”) in discussing mitigating factors:

INSTRUCTION NUMBER TWO ENTITLED MITIGATING

CIRCUMSTANCES:

In fixing a sentence for the defendant for the offense of murder, you shall

consider such mitigating or extenuating facts and circumstances as has [sic] been

presented to you in the evidence and you believe to be true, including but not

limited to such of the following as you believe from the evidence to be true:

A. That the offense was committed while the defendant was under the influence

of extreme mental or emotional disturbance, even though the influence of extreme

mental or emotional disturbance was not sufficient to constitute a defense to the

crime. B. At the time of the offense, the capacity of the defendant to appreciate

the criminality of his conduct or to conform his conduct to the requirements of the

law was impaired as a result of mental illness, even though the impairment of the

capacity of the defendant to appreciate the criminality of his conduct or to

conform the conduct to the requirements of the law was insufficient to constitute a

defense to the crime and C. Any other circumstance arising from the evidence

which you the jury deem to have mitigating value. In addition to the foregoing,

you shall consider those aspects of the defendant’s character, background and

those facts and circumstances of the particular offense of which he is guilty, to-

wit: the murder of Charles Fred Cash, about which he has offered evidence in

mitigating [sic] of the penalty to be imposed upon him and which you believe

from the evidence to be true. [changed because this is how the format appears in

the cited trial transcripts.]

No. 13-6085 Thompson v. Parker Page 12

Trial Tr. at 1237–38 (emphasis added).2

A reasonable jury might well have interpreted this instruction to mean that, in addition to

the mitigators contemplated in items A and B of the instruction, the jury should consider certain

mitigators described in item C found by “you the jury”—i.e., the jury as a whole.3 Even so, in

light of Spisak, the state court did not unreasonably apply Mills in finding the jury instructions

constitutional.

That is because, as was the case in Spisak, nothing in Thompson’s jury instructions

actually required the jury (or any individual jurors) to make a determination as to the presence or

absence of mitigators in the first place. Indeed, Thompson’s jury instructions made clear that the

jurors had to find aggravating factors “beyond a reasonable doubt,” Trial Tr. at 1237, and that the

jurors could not impose the death penalty (or a sentence of life without parole for a minimum of

25 years) without finding and specifying an “aggravated circumstance or circumstances,” id. at

1489, on a verdict form that had to be “unanimous,” id. at 1241. Moreover, the jurors here were

instructed:

If you have a reasonable doubt as to the truth or existence of any aggravating

circumstance listed in Instruction No. 3, you shall not make any finding with

respect to it.

If, upon the whole case, you have a reasonable doubt whether the Defendant

should be sentenced to death, you shall instead fix his punishment at a sentence of

imprisonment.

Id. at 1486.

The Supreme Court held that the instructions in Spisak did not violate Mills, and we

therefore must conclude that the Kentucky courts’ upholding the jury instructions in this case

was not “contrary to” or “an unreasonable application of, clearly established Federal law, as

2

In setting forth the “relevant portions of the jury instructions,” R. 42 at 46, the district court omitted most

of the text of this seemingly relevant jury instruction.

3

On the other hand, immediately following the “you the jury” language, the instruction states that “[i]n

addition to the foregoing, you shall consider those aspects of the defendant’s character, background and those facts

and circumstances of the particular offense of which he is guilty, . . . about which he has offered evidence in

mitigating of the penalty to be imposed upon him and which you believe from the evidence to be true.” This

catchall language mitigates concern that the jury may have concluded that item C required that their consideration of

“other circumstances” as mitigating be confined to those that the jury found as a whole.

No. 13-6085 Thompson v. Parker Page 13

determined by the Supreme Court of the United States” in Mills. The jury here was instructed to

consider all the evidence before it, to consider the potentially aggravating and mitigating factors

introduced at trial, and to issue a unanimous verdict. According to the instructions, returning a

death-penalty verdict required the jury to find, beyond a reasonable doubt, the existence of

aggravating factors, and the jury was required to list the specific aggravating factors that the jury

had collectively found. In contrast, the jury instructions and verdict form did not instruct the jury

that a juror individually could not decline to return a sentence of death on account of a mitigating

circumstance unless the jury unanimously found that circumstance to exist. Simply put,

Thompson’s instructions are easily distinguishable from those in Mills. Thus, Thompson has

failed to show that “there is no possibility fairminded jurists could disagree that the state court’s

decision conflicts with [the Supreme] Court’s precedents.” Harrington, 562 U.S. at 102.

IV

Proportionality Review

Finally, Thompson argues that the Kentucky Supreme Court’s proportionality review was

unconstitutional because the universe of “similar” cases to which his was compared was too

small. That court looked only to those cases where a death sentence was imposed. Thompson

contends that the court should also have looked to similar cases where a death sentence, though

sought, was not imposed. This claim was adjudicated on the merits in the Kentucky courts, so

AEDPA deference should apply; the district court, however, reviewed this claim de novo, and

the Warden has not asked us to apply AEDPA deference on appeal. Thompson, however, has

used the language of AEDPA deference in his brief and his reply brief. Pet’r’s Br. 46 (“contrary

to clearly established law”), 47 (“contrary to, or an unreasonable application of, clearly

established federal law”), Reply Br. 10 (“contrary to, or based upon an unreasonable application

of, clearly established federal law”).

We need not enter the thicket of whether AEDPA deference applies, however, because

whether it does or does not, Thompson’s claim still fails.

We first note that Thompson has raised three arguments on appeal, only one which was

presented to the district court. “The clear rule is that appellate courts do not consider issues not

No. 13-6085 Thompson v. Parker Page 14

presented to the district court.” Brown v. Marshall, 704 F.2d 333, 334 (6th Cir. 1983). We

therefore decline to address the following two arguments that Thompson did not raise below:

(1) the proportionality review in his case was constitutionally flawed not only because the

comparison group was too small, but also because the court “made no effort to compare the facts

and circumstances of Thompson’s life and background to the lives of the people within the

comparison group”; and (2) the comparison group of non-excessive-death-penalty cases used in

the proportionality review improperly included some decided before the Supreme Court, in

Furman v. Georgia, 408 U.S. 238 (1972), held the death penalty unconstitutional—i.e., cases in

which the death sentences were presumptively excessive. See McCleskey v. Kemp, 481 U.S. 279,

301 (1987) (explaining that prior to Furman, “the death penalty was so irrationally imposed that

any particular death sentence could be presumed excessive”).

The argument that Thompson has preserved is that the Kentucky Supreme Court violated

his constitutional right to due process by failing to require a better comparative-proportionality

review (i.e., comparing Thompson’s sentence to those others have received), which we note is

different from inherent-proportionality review (i.e., comparing the severity of the sentence to the

gravity of the crime). See Pulley v. Harris, 465 U.S. 37, 42–44 (1984). But there is no

constitutional entitlement to any comparative-proportionality review, a fact that Thompson

readily admits. See id. at 43–46, 50–51; Pet’r’s Br. 40, 45. Thompson argues that Kentucky’s

proportionality-review statute confers upon him a liberty interest that is in turn protected by the

Fourteenth Amendment Due Process Clause. But Thompson’s federally protected liberty interest

created by that statute, at most, is an interest in having the Kentucky Supreme Court follow that

statute, which it did. That court compared Thompson’s case to those of other defendants

sentenced to death for a single murder and specifically cited two of those other cases.

Thompson, 147 S.W.3d at 54–55. That analysis was sufficient to satisfy Kentucky law. See Ky.

Rev. Stat. Ann. § 532.075(3)(c), (5); Bowling v. Parker, 344 F.3d 487, 522 (6th Cir. 2003). And

when it comes to a petitioner’s liberty interest in state-created statutory rights, absent some other

federally recognized liberty interest, “there is no violation of due process as long as Kentucky

follows its procedures.” Id. at 522.

Thus, even on de novo review, Thompson’s proportionality-review claim fails.

No. 13-6085 Thompson v. Parker Page 15

V

The order of the district court is AFFIRMED.