Appendix — White v. Wheeler, 136 S. Ct. 456 (2015) (No. 14-1372)

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No. 14-_ > vies

Supreme Court of the 3 United States

RANDY WHITE, WARDEN,

Petitioner,

U.

ROGER L. WHEELER,

Respondent.

CAPITAL CASE

On Petition for Writ of Certiorari to the

U. S. Court of Appeals for the Sixth Circuit

APPENDIX TO CERTIORARI PETITION

JACK CONWAY

ATTORNEY GENERAL OF KENTUCKY

DAVID W. BARR*

ASSISTANT ATTORNEY GENERAL

1!O24 Capita, CENTER DRive

FRANKFORT, KENTUCKY 4060!

(502) 696-5342

DAVID BARR@«KY GOV

COUNSEL FOR PETTIONER

RANOY WHITE, WARDEN

* COUNSEL OF RECORD

Item Page

Opinion, Wheeler v. Simpson,

No. 11-5707, United States Court of

Appeals for the Sixth Circuit.

February 20, 2010.

779 F.3d 366(6th Cir. 2015) la 77a

Order, Wheeler v. Simpson,

Adopting Magistrate Judge's

“Findings of Fact, Conclusions of Law

and Recommendation,”

No. 3:09CV-336M, United States District Court

for the Western District Court.

March 2, 2011, 78a 79a

Findings of Fact, Conclusions of Law and

Recommendation (excerpt), Wheeler v. Simpson,

No. 3:09CV-336M, United States District Court

for the Western District of Kentucky,

January 12, 2011 80a 87a

Opinion, Wheeler v. Commonwealth

No. 2001-SC-0444-MR

Rendered: August 21, 2003

Modified: December 18, 2003

121 S.W.3d 173 (Ky. 2003) 88a 119a

Amended Judgement of Conviction and Sentence,

Jefferson Circuit Court,

No. 97-CR-002621 and

No. 97-CR-002768

August 27, 2001 120a 124a

Voir Dire Transcript of Juror 638 125a 140a

la

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ROGER L. WHEELER, ,

Petitioner-Appellant,

No. 11-5707

THOMAS L. SIMPSON, Warde

Respondent-Appellee.

Appeal from the United States District Court

for the Western District of Kentucky at Louisville

No. 3:09-CV-00336—Joseph H. McKinley, Jr., Chief

District Judge.

Argued: October 1, 2014

Decided and Filed: February 20, 2015

Before: MERRITT, GRIFFIN, and WHITE, Circuit

Judges.

COUNSEL

ARGUED: Joseph T. Flood, SHELDON, FLOOD &

HAYWOOD, PLC, Fairfax, Virginia, for Appellant.

David W. Barr, OFFICE OF THE KENTUCKY

ATTORNEY GENERAL, Frankfort, Kentucky, for

Appellee. ON BRIEF: Joseph T. Flood, SHELDON,

FLOOD & HAYWOOD, PLC, Fairfax, Virginia, David

M. Barron, KENTUCKY DEPARTMENT OF PUBLIC

2a

ADVOCACY, Frankfort, Kentucky, for Appellant.

David W. Barr, OFFICE OF THE

KENTUCKY ATTORNEY GENERAL, Frankfort,

Kentucky, for Appellee.

MERRITT, J., delivered the opinion of the court in

which WHITE, J., joined. GRIFFIN,

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

OPINION

MERRITT, Circuit Judge. This death penalty case

from the Kentucky courts arises from the brutal

murder of two victims in October of 1997. For reasons

explained below, we conclude that a writ of habeas

corpus must be issued as to the death sentence because

the Kentucky trial court erroneously struck from the

jury a Mr. Kovatch, an eligible juror who may have

been in favo: of sparing the Petitioner's life. The state

trial court, after a full examination of Mr. Kovatch at

voir dire, found him not to be “problematic’ as a juror

but one who “could consider the entire range” of

penalties. Then the next day the trial court excused

him because the judge mistakenly remembered him

saying he would not consider the death penalty. The

issue is one of procedural fairness in administering the

death penalty. As the Supreme Court has observed, to

permit the for-cause exclusion of an otherwise-eligible

juror “unnecessarily narrows the cross-section of venire

members” required under the Sixth Amendment and “

‘stack[s] the deck against the petitioner. To execute

[such a] death sentence would deprive him of his life

without due process of law.’ “ Gray v. Mississippi, 481

3a

U.S. 648, 658-59, 107 S.Ct. 2045, 95 L.Ed.2d 622

(1987) (quoting Witherspoon v. Illinois, 391 U.S. 510,

523, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)).

I, Factual and Procedural History

In 2001, a Kentucky state jury sentenced Roger

Wheeler to death after convicting him of two counts of

intentional murder. ‘On direct appeal, the Supreme

Court of Kentucky affirmed Wheeler's convictions and

sentence, making the following findings of fact:

On October 2, 1997, Louisville police discovered

the bodies of [Nigel Malone and Nairobi

Warfield] in the apartment the victims shared.

The male victim was found in a hallway near the

bathroom. He had suffered nine stab wounds.

Two stab wounds to the chest were considered

the fatal wounds by the medical examiner. She

described the crime scene as having blood

spatters on the floor, walls, furniture and

appliances. The medical examiner believed that

the main struggle occurred in the kitchen and

progressed to the hallway where the body of the

male victim was found.

The female victim died as a result of manual

strangulation. The medical examiner testified

'The jury recommended a death sentence for each

conviction after finding one aggravating circumstance: Wheeler's

acts fo killing were intentional and resulted in multiple deaths. See

Ky. Rev. Ann. § 532.025(2)(a)(6).

4a

that she believed the struggle between the

female and her assailant occurred in the

bedroom where she was found. The female

victim had multiple abrasions on the left side of

her neck and lacerations with a bruise on her

mouth and several bruises on her lips. Her body

was found in a seated position, leaning against

a bedroom wall. She was covered with a blanket

or quilt and a scissors was protruding from her

neck. The medical testimony determined that

she had been stabbed with the scissors after she

was already dead. During the autopsy, the

medical examiner discovered that the female

victim was pregnant.

There was blood on the floors and walls in

nearly every room in the apartment. Numerous

blood samples were also collected at the scene

and were subject to laboratory testing. No

fingerprints were found on the scissors.

Wheeler denied killing the two victims but he

changed his story on several occasions.

Originally, he denied ever being inside of the

apartment on the night the murders occurred

but then later admitted being in the apartment

on that night. He claimed that Nigel Malone was

already stabbed, but that he did not see Nairobi

Warfield. He also asserts that the assailant was

already inside the apartment and he and that

person fought which was why he was wounded.

Sa

Wheeler v. Commonwealth, 121 S.W.3d 173, 178

(Ky.2003) ( Wheeler I ). The Kentucky state courts

subsequently denied Wheeler's petition for

post-conviction relief. See Wheeler v. Commonwealth,

No. 2006—-SC—000901-—MR, 2008 WL 5051579, at *11

(Ky. Nov. 26, 2008) ( Wheeler IT).

Wheeler filed the instant petition for a writ of

habeas corpus in May of 2009. Overruling Wheeler's

timely objections, the district court adopted the

magistrate judge's report and granted summary

judgment to the State on all claims. We ultimately

certified twelve claims for appellate review. Of these

claims, six concern Wheeler’s conviction; the rest deal

with the jury’s imposition of the death penalty.

II. The Exclusion of Mr. Kovatch

The Kentucky trial judge struck Juror Kovatch

from the jury even though he expressly stated that he

could consider the full range of punishment—including

the death penalty—after earlier expressing

reservations and uncertainty about its wisdom. In

reviewing his exclusion, the Supreme Court of

Kentucky neither provided any details about Mr.

Kovatch nor referred to Supreme Court case law on the

subject. Instead, it simply stated that the trial judge

“appropriately struck for cause those jurors that could

not impose the death penalty.” Wheeler J, 121 S.W.3d

at 179.

The Kentucky trial judge conducted the initial voir

dire of Mr. Kovatch before the lawyers examined him.

6a

She inquired whether he could consider the entire

range of penalties, specifically asking about “[twenty]

years imprisonment” and “the death penalty.” Voir

Dire Tr. at 1. He replied he “probably” could consider

the death penalty “after some deep reflection.” Jd. Mr.

Kovatch further said that he had not “formed an

opinion one way or the other” regarding the death

penalty and noted that there were “arguments on both

sides of. . . it.” Jd. at 2. Furthermore, he did not believe

he had “any moral, religious, spiritual or personal

beliefs that would keep fhim) from considering the

death penalty.” Id.

The prosecutor’s voir dire questioning explained

that if the jury found the defendant guilty of two

homicides, “the Judge, at that point, would give [the

jury] a penalty range of [twenty] years all the way up

to the death penalty and all the options in between.”

Id. at 6. Mr. Kovatch replied that he had never “been

confronted with that situation’ before and it was

“difficult for [him] to judge how [he] would. . act.” Id.

The prosecutor then asked Mr. Kovatch if he was

saying he was “not absolutely certain whether [he]

could realistically consider [the death penalty]. . ..” Id.

at 7 (emphasis added). Mr. Kovatch acknowledged he

was not “absolutely certain” by saying, “I think, I think

that would be the most accurate way I could answer

your question.” Jd.

Soon after, upon examination by defense counsel,

Mr. Kovatch described the death penalty as “a very

philosophical topic” and “a very difficult one.” Jd. at 8.

He discussed getting older, understanding “a lot more

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things about values and [ ] life itself.” Jd. He described

himself as “a bit more contemplative on the issue of

taking alifeand § whether or not we have the right

to take that life.” Id. He was then asked whether he

felt he could “consider all of the options presented.” Jd.

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

After the trial judge excused the jurors for the

evening, the prosecution moved to excuse Mr. Kovatch

for cause, claiming he gave “two inconsistent answers”

because “he could not say whether he could realistically

consider the death penalty or not.” Id. at 9. The

prosecutor suggested that the “gravamen of his

testimony” provided grounds to strike him for cause

under Gall v. Parker, 231 F.3d 265 (6th Cir.2000), as “a

juror who can’t say if he can give the death penalty.”

Voir Dire Tr. at 9-10.

Responding to the prosecution's motion, defense

counsel highlighted Mr. Kovatch’s answers to the judge

indicating his ability to consider “all the penalty

options.” Counsel said he was “a man who has

contemplated this issue” who “wants to be very

honest and candid with the Court” despite having

“some reservations about the death penalty.” Jd. The

defense further argued (correctly) that nothing in the

case law disqualifies ajuror “because they. question

some aspects of the death penalty or they consider it to

be a serious matter, or they consider it to be something

that. . calls into question [ ] issues of. life and

how important it is.” Jd.

8a

Responding immediately to the prosecutor's

motion, the trial judge expressed her impression that

Mr. Kovatch was “someone who would take this job

very seriously and who had serious reservations about

the death penalty.” Jd. at 12. She believed he was

someone who “could consider the entire range” after

her questioning and “didn’t even see him as

problematic when [she] got through with him.” Jd. The

trial judge then took the motion under advisement.

The following morning, the trial judge struck Mr.

Kovatch for cause, relying on an inaccurate paraphrase

of the record suggesting that Mr. Kovatch “couldn't

consider” the death penalty:

[T]he Commonwealth moved to strike Mr.

Kovatch because of his expressed

concerns about considering the entire range.

And when I went back and reviewed his entire

testimony, [the prosecutor] concluded with

saying, “Would it be accurate to say that you

couldn't, couldn’t consider the entire range ?”

And his response is—I think was, “I think that

would be pretty accurate.” So I’m going to

sustain that one too.

Id. at 14 (emphasis added). This description differed

materially from the prosecutor’s actual question: “And

if understand you correctly, you're . . . telling me that,

at this point you're not absolutely certain whether you

could realistically consider it or not? “ Id. at 7

(emphasis original).

9a

Mr. Kovatch agreed he did not know to an

absolute certainty whether he could realistically

consider the death penalty, but the court proceeded as

if he knew he could not. Mr. Kovatch clearly stated he

could consider the full range of penalties prescribed by

Kentucky law, and before her subsequent

mischaracterization of his answer, the trial judge

observed that he could “consider the entire range” and

should be viewed as a good juror who was not even

“problematic.”

Although Supreme Court precedent addressing the

exclusion of venirepersons from death-penalty juries

has evolved and been clarified, the Court has

repeatedly held that a venireperson who has

reservations about the death penalty cannot be excused

for cause if he or she is able to follow the trial court’s

instructions and consider all penalties provided under

the law. In Witherspoon, the first Supreme Court case

in a line of cases addressing this issue, the Court held

that the only venirepersons who may be excluded for

cause are:

[T]hose who made unmistakably clear (1) that

they would automatically vote against the

imposition of capital punishment without regard

to any evidence that might be developed at the

trial of the case before them, or (2) that their

attitude toward the death penalty would prevent

them from making an impartial decision as to

the defendant's guilt.

10a

391 U.S. at 522 n. 21, 88 S.Ct. 1770. In Wainwright v.

Witt, the Court clarified Witherspoon as follows:

That standard is whether the juror’s views

would “prevent or substantially impair the

performance of his duties as a juror in

accordance with his instructions and his oath.”

We note that, in addition to dispensing with

Witherspoon ‘s_ reference to “automatic

decisionmaking, this standard likewise does not

require that a juror’s bias be proved with

“unmistakable clarity.” This is because

determinations of juror bias cannot be reduced

to question-and-answer sessions which obtain

results in the manner of a catechism.

469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)

(footnote omitted).

In subsequent cases, the Court again clarified its

position by holding that a juror may not be excluded if,

like Mr. Kovatch, he can set aside his doubts and

consider the death penalty. In Lockhart v. McCree,

Justice Rehnquist explained:

It is important to remember that not all who

oppose the death penalty are subject to removal

for cause in capital cases; those who firmly

believe that the death penalty is unjust may

nevertheless serve as jurors in capital cases so

long as they state clearly that they are willing to

temporarily set aside their own beliefs in

deference to the rule of law.

lla

476 U.S. 162, 176, 106 S.Ct. 1758, 90 L.Ed.2d 137

(1986). And, in Uttecht v. Brown, the most recent

Supreme Court decision to discuss the for-cause

removal of death penalty sentencing-phase juror, the

Court again reiterated that “[c]apital defendants have

the right to be sentenced by an impartial jury,” and, to

this end, reaffirmed that “[t}he State may not infringe

[the Witt right] by eliminating from the venire those

whose scruples against the death penalty would not

substantially impair the performance of their duties.”

551 U.S. 1, 9, 22, 127 S.Ct. 2218, 167 L.Ed.2d 1014

(2007).

Although Uttecht held that a trial judge’s decision

regarding for-cause removals should be afforded great

deference, id. at 17-22, 127 S.Ct. 2218, it also made

clear that “[t]he need to defer to the trial court’s ability

to perceive jurors’ demeanor does not foreclose the

possibility that a reviewing court may reverse the trial

court’s decisions where the record discloses no basis for

a finding of substantial impairment,” td. at 20, 127

S.Ct. 2218. In Uttecht, the deference owed to the trial

judge was largely premised on the trial judge’s ability

to “observe the demeanor of [the juror during voir dire

],” and the defense’s decision not to object when, after

voir dire had concluded, the State challenged the juror

for cause. Jd. at 17-19, 127 S.Ct. 2218 (“The defense’s

volunteered comment that there was no objection is

especially significant....”). Moreover, it was clear from

the record that the juror “had both serious

misunderstandings about his responsibility as a juror

and an attitude toward capital punishment that could

12a

have prevented him from returning a death sentence

under the facts of this case.” Jd. at 13, 127 S.Ct. 2218.

Here, Mr. Kovatch did not display a

misunderstanding of his role as a potential juror or

misstate the applicable law. He understood the

decisions he would face and engaged with them in a

thoughtful, honest, and conscientious manner. More

important in the context of Uttecht, the trial judge's

initial assessment of Mr. Kovatch’s answers and

demeanor reveals that she judged him as someone who

“could consider the entire range” and “didn’t even see

him as problematic when [she] got through with him.”

* The trial judge reversed her initial assessment of Mr.

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

Well, um, my overall sense was that he

was, uh, someone who would take this job

very seriously and who had serious

reservations about the death penalty, but

his responses to my questions were not at

all indicative of someone - uh, in fact, what

I do when I finish my, my questioning is,

is first of all, put down “could consider

entire range” or “exhibits reluctance on

death penalty” or “exhibits reluctance on

20 years” or “can’t consider” - I do sort of a

summary. Uh, and I! put “could consider

entire range.” I mean, I didn't even see

him as problematic when I got through

with him. Um, I think if you look at the

totality of the questioning, what he’s

indicating, uh, that I understood was that

he would take it very seriously but that he

could consider the entire range. Um, and

l3a

Kovatch’s qualification, which was based on his

demeanor and answers, after misapprehending a single

question and answer exchange with the prosecutor.

Had the trial judge properly processed that exchange,

her initial belief that Mr. Kovatch was not

“problematic” and “could consider the entire range”

would have been confirmed. Thus, the deference owed

to the trial judge’s ability to assess Mr. Kovatch’s

demeanor supports that he was Witt—qualified to

serve on Wheeler's jury.

Aware of the great deference owed a trial judge’s

decision to remove a potential juror for cause, we

nevertheless find that the Kentucky court

unreasonably applied clearly established Supreme

Court law—namely, Witt and its progeny—when it held

that Mr. Kovatchs removal for cause was

constitutional.*

I guess and, and maybe | just didn't hear

it phrased the, the way that [the

prosecution] phased it but, um, I didn't

hear him say that he couldn't realistically

consider the death penalty. Did he

actually say that?

*We also observe that the trial judge's misapprehension of

Mr. Kovatch’s exchange with the prosecutor may itself warrant

relief under 28 U.S.C § 2254(d)(2) because it led to a “a decision

that was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” We

need not reach that question.

14a

The Supreme Court has repeatedly made clear that

the improper exclusion of a qualified juror in a death

penalty case is presumed prejudicial. In Gray, it stated

that it had “established a per se rule requiring the

vacation of a death sentence imposed by a jury from

which a potential juror, who has conscientious scruples

against the death penalty but who nevertheless under

Witherspoon is eligible to serve, has been erroneously

excluded for cause.” Gray, 481 U.S. at 659, 107 S.Ct.

2045 (citing Davis v. Georgia, 429 U.S. 122, 123-24, 97

S.Ct. 399, 50 L.Ed.2d 339 (1976)). Thus, an improper

for-cause exclusion of a prospective juror such as Mr.

Kovatch is precisely the type of “structural error” ‘ that

the Supreme Court has said may not be excused

through harmless-error analysis or on grounds of a

lack of prejudice.

Since the Lockhart and Gray cases in 1986 and

1987, this has been the constitutional rule we must

apply in all for-cause juror-exclusion cases. See, e.g.,

Uttecht, 551 U.S. at 22, 127 S.Ct. 2218 (“The State may

not infringe this right by eliminating from the venire

those whose scruples against the death penalty would

not substantially impair the performance of their

duties.”). The specificity and clarity of this rule also

satisfies the AEDPA statutory requirement that a writ

of habeas corpus may not be issued against a

state-court judgment unless the state decision “was

contrary to, or involved an unreasonable application of,

*For a discussion of the “structural error’ cases, including

Gray case, see 3B Charles Alan Wright et al., Federal Practice and

Procedure § 855 (4th ed. 2014).

lSa

clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. §

2254(d)(1).°

Because we find that the trial court

unconstitutionally excluded Mr. Kovatch from the jury

warranting a new penalty-phase trial for Wheeler, we

need not decide and therefore pretermit any other

sentencing issues raised in his habeas petition. We will

now turn to the issues raised by Wheeler concerning

the guilt phase of his trial. We do not find that any of

them warrant habeas relief.

ITI. Evidence of Victim’s Pregnancy

Wheeler contends that the trial court denied him

a fundamentally fair trial by admitting “irrelevant”

evidence that the female victim, Nairobi Warfield, was

pregnant at the time of her death. In the state

appellate courts, Wheeler framed this issue primarily

‘AEDPA deference prevents federal habeas courts from

upsetting many state court determinations. Under AEDPA, we

may not grant a writ of habeas corpus unless the state court's

adjudication of the claim was contrary to or an unreasonable

application of federal law or “resulted in a decision that was based

on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C.

§2254(d). An unreasonable application of clearly established

federal law occurs where a state court accurately identifies the

governing legal rule but applies it in an unreasonable manner to

the facts of the case before it. Moore v. Berghuts, 700 F.3d 822, 886

(6" Cir. 2012).

16a

as a violation of Kentucky state law ° as well as the

Fourteenth Amendment of the United States

Constitution. In this habeas appeal, he asserts that the

allegedly improper admission of the evidence was so

prejudicial as to render his entire trial fundamentally

unfair.

There were only two references to Warfield’s

pregnancy at trial. ’ The Supreme Court of Kentucky

held that this evidence was admissible and not

prejudicial under Kentucky law, particularly in light of

the “brief” role it played. Wheeler J, 121 S.W.3d at 181.

Thus, this claim is not cognizable on federal habeas

corpus review—at least to the extent that Wheeler

claims its admission contravened Kentucky’s laws or

its rules of evidence. See, e.g., Bey v. Bagley, 500 F.3d

514, 519 (6th Cir.2007) (“[E]rrors in application of state

law, especially with regard to the admissibility of

evidence, are usually not cognizable in federal habeas

corpus.”).

Wheeler cites no Supreme Court decisions in which

several brief references to the pregnancy of the murder

victim, without more, have been held sufficiently

*Wheeler argued that the admission of this evidence

violated Kentucky Rule of Evidence 404(b) as well as Sections 2

and 11 of the Kentucky Constitution - which provide for a nght to

a fair trial.

’The medical examiner testified the autopsy revealed that

Warfield was pregnant with a small embryo, and the prosecution

also bnefly mentioned the pregnancy during its closing argument.

®. 52, PID # 57).

17a

egregious so as to violate the due process clause." It

stands to reason that a state court cannot rule contrary

to established precedent when no such precedent

exists. In short, Wheeler has failed to persuade us that

the admission of evidence related to Warfield’s

pregnancy rendered his trial fundamentally unfair.

Accordingly, no habeas relief is appropriate on this

claim.

IV. Ineffective—Assistance—of—Counse! Claims

To demonstrate ineffective assistance of counsel,

Wheeler must demonstrate that his trial “counsel's

performance was deficient, and that the deficiency

prejudiced his defense.” Wiggins v. Smith, 539 US.

510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citing

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984)). Moreover, “[w]hen §

2254(d) applies, the question is not whether counsel's

actions were reasonable. The question is whether there

is any reasonable argument that counsel satisfied

Strickland ‘s deferential standard.” Harrington v.

Richter, 562 U.S. 86, 131 S.Ct. 770, 788, 178 L.Ed.2d

624 (2011).

"Wheeler's brief relies heavily on the Fifth Circuit's opinion

in White v. Thaler, 610 F. 3d 890 (5th Cir. 2010). This case does

not entitle him to habeas relief. Even if we were to conclude that

the Supreme Court of Kentucky's decision in this case was

“contrary to” White, that case is not Supreme Court precedent as

required by 28 U.S.C. § 2254(d)(1).

18a

Wheeler raises three’ guilt-phase

ineffective-assistance-of-counsel claims. We address

each in turn.

A. Failure to Conduct an Adequate

Investigation of Wheeler’s Shoes

Police found several bloody shoe prints at the crime

scene. In the middle of trial, Wheeler informed his trial

counsel that he still possessed the gray Nike tennis

shoes he claimed to have worn when he entered the

victims’ apartment on the night of the murders.

Wheeler’s trial counsel thus attempted to introduce

these shoes for the jury to compare with the bloody

shoeprints. The trial court, however, sustained the

prosecution’s objection and excluded the shoes on

grounds of inadequate notice and lack of a chain of

custody. The Supreme Court of Kentucky held that

their exclusion was proper for a different reason: the

shoes were irrelevant because Wheeler never testified

that he was wearing them while he was inside the

victims’ apartment on the night of the murders.

Rather, Wheeler testified on avowal only that he was

wearing them the next day when he was arrested. Nor

did the defense offer any other evidence to link the

shoes to the crime scene. Thus, “[t]he mere fact that

Wheeler owned a pair of shoes that may or may not

have matched the shoe prints found at the crime scene

did not tend to make the defense theory more

probable.” Wheeler J, 121 S.W.3d at 182.

In this habeas appeal, Wheeler argues that his

trial counsel was ineffective for: (1) failing to elicit

19a

testimony that his shoe size was larger than the prints

found by police; (2) failing to lay a proper foundation

for introducing the tennis shoes he claims he was

wearing the night of the murders; and (3) failing to

retain a shoeprint expert.

As an initial matter, Wheeler's claim that his trial

counsel should hav. elicited testimony from him about

his shoe size is procedurally defaulted. Wheeler did not

present this claim to the state courts, and no state

remedy now exists for doing so. See Lovins v. Parker,

712 F.3d 283, 293 (6th Cir.2013). Nor does Wheeler

attempt to show cause and prejudice to cure the

default. Accordingly, no relief is warranted.

Wheeler also faults his trial counsel for failing to

elicit testimony as to whether he wore his tennis shoes

on the night of the murders. The thrust of this

argument is that admission of the tennis shoes would

have corroborated Wheeler's testimony and thus

enhanced his credibility— i.e., someone else must have

committed the murders if the bloody footprints were

not his. This line of reasoning omits a critical point:

Wheeler cannot demonstrate prejudice without

knowing the victims’ shoe sizes. The bloody footprint

may have belonged to one of them.

As for his claim regarding his trial counsel's failure

to call a shoe expert, Wheeler asserted in his state

post-conviction proceedings that had his tennis shoes

been admitted into evidence, an expert would have

been unnecessary for “jurors to compare the shoes with

the shoe prints at the scene. A layperson could

20a

determine this fact.” Wheeler I, 2008 WL 5051579, at

*6. The Supreme Court of Kentucky considered this

admission “tantamount to a concession that lack of an

expert was not ineffective assistance.” Jd. We agree. In

light of these facts and the strength of the murder

evidence, we cannot say that the Supreme Court of

Kentucky unreasonably applied Strickland by holding

that Wheeler was not prejudiced by the lack of a shoe

expert.

B. Other Ineffective—Assistance—of—Counsel

Claims

Wheeler claims that his trial counsel was

constitutionally ineffective for failing to explain the

presence of his blood on the female victim's thigh. He

further argues that his trial counsel was ineffective for

not sufficiently investigating or challenging the

adequacy of the police techniques used to gather the

blood evidence at the crime scene. The answer to these

arguments is that there was simply no evidence his

lawyer could use to rebut this evidence of guilt.

Wheeler's brief cites neither any authority nor any

portion of the record in support of this claim. Hence,

this claim must be rejected.

Wheeler further contends that his trial counsel was

ineffective for failing to call Earl Ricketts, Jr., to

contradict the testimony of Denise Mumpfort.

Mumpfort worked at a convenience store near the

apartment where the murders occurred and testified

that Wheeler had entered the store that night looking

like someone had “poured [blood] on his head.” Wheeler

2la

claims that Ricketts, a security guard at the store,

would have testified that Wheeler only had some blood

on him “but not a lot.” This proposed testimony would

not have contradicted Mumpfort’s in any material way.

The mere presence of blood is all that mattered given

Wheeler’s testimony that he had been injured while

fighting the alleged assailant who was armed with a

knife. Trial counsel's decision not to call Ricketts was

thus a question of tactics, and was not a significant

mistake, if a mistake at all.

V. Prosecutorial Misconduct

Wheeler’s first claim of misconduct involves the

prosecutor's references to the shoeprint argument as a

“defense trick” designed to distract the jury from more

critical evidence.*® The Kentucky trial court held that

these statements were fair commentary on the

defense’s theory of the case— i.e., Wheeler's reliance

upon supposed inconsistencies with various shoeprints.

The Kentucky Supreme Court held that the

prosecutor's comments did not deprive Wheeler of a

fundamentally fair trial. Wheeler J, 121 S.W.3d at 189.

Although the word “trick” can be viewed as

unnecessarily pejorative, the comment was both

isolated and responsive, and the Kentucky Supreme

Court reasonably concluded that the comment did not

*The prosecutor said: “So [the defense] gets up and said,

‘Well, the shoeprint, that’s the most telling of all.’ Forget about all

that DNA, forget about all the lies. It’s called the defense trick.

Look away, look away, look away. Don't look at the facts.” PID

2053.

22a

have an effect on Wheeler’s due process right to a fair

trial.

Wheeler also condemns the prosecutor’s comments

in closing concerning the unavailability of Wheeler's

tennis shoes—evidence the prosecution itself had

successfully convinced the trial court to exclude.

Specifically, the prosecutor stated, “We need a shoe to

compare (the bloody shoeprint] to. We don’t have that.

If you remember, [Wheeler] says, ‘Ihad. . gray Nike

tennis shoes, denim pants and a black or dark

sweatshirt on.’ He knows where his clothes are at. Mr.

Cooperative never brought them in.”’® Wheeler argues

'During closing argument, Wheeler's counsel! focused on

the shoeprint evidence several times, arguing: “Now when you go

back to deliberate, I’m going to ask you to look very, very closely at

the shoeprint evidence. . .. Piease look very, very closely when you

get back there. This shoeprint [lifted from the crime scene] and

these shoeprints [lifted from a different area of the crime scene]

don’t match. There were obviously at least two other people in that

home.” PID 2014-42. Later, she suggested that a witness who was

not called left the shoeprints: “Maybe they should have checked

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

Shannon Calloway’s shoes to what they’ve got here.” PID 2046.

Again, “There had to be more than one person [in the home]. The

shoeprint evidence tells you that.” PID 2047. All of this appears to

be support for the defense’s ultimate conclusion that: “Now if these

shoeprints would have fit those of Roger Wheeler’s, you would have

heard that evidence. Those aren't Roger Wheeler's shoeprints.” PID

2048.

Aware that the defense’s closing argument revolved around

the shoeprint evidence (or lack thereof), the prosecutor responded:

“ETU [the state’s evidentiary unit] does a good, thorough job

[lifting the shoeprints]. . .. But you know what? We need a shoe to

compare it to. We don’t have that. If you remember, [Wheeler]

23a

that this statement amounts to an improper attempt to

shift the burden of proof onto him— ie., he needed to

produce his tennis shoes in order to establish his

innocence. The Kentucky trial court held that by

previously mentioning the shoeprint evidence,

Wheeler's trial counsel opened the door for the

prosecution to discuss that topic. The Kentucky

Supreme Court held that the argument did not render

Wheeler's trial fundamentally unfair. Wheeler J, 121

S.W.3d at 189. This conclusion did not involve an

unreasonable application of federal law.

Wheeler's final misconduct argument concerns the

prosecutor's statements regarding Shannon Calloway,

a witness who discovered the victims’ bodies and later

says, ‘I had gray Nike Airs or gray Nike tennis shoes, denim pants,

and a black or dark sweatshirt on.’ He knows where his clothes are

at. Mr. Cooperative never brought [the shoes] in.” PID 2051-52.

The trial judge overruled the defense's objection to this

statement. Out of the presence of he jury, the trial judge first

commented that the defense had tned to introduce the shoes only

after trial had started (and thus the evidence was untimely). The

trial judge then stated: “I do think it’s fair for [the prosecutor] to

comment on the fact that [the defense] focused greatly on the

shoeprint [evidence]... where that could have been pursued and

it wasn't.” PID 5052-53.

Regarding use of “Mr. Cooperative, the prosecutor made

clear that “[the defense attorneys] keep hammering on how

cooperative [Wheeler] was [when approached by police prior to

being arrested], and that’s why I'm making the statement if he was

so cooperative, then why didn't he bring [the shoes] tn, too?” PID

2053. The trial judge responded that she understood the

prosecutor's reasoning and did not suggest it was improper

24a

accused Wheeler of being the perpetrator.

Unbeknownst to the jury, Calloway died before trial in

an unrelated incident. In final arguments, however, the

defense suggested that Calloway may have been the

real murderer but never explained that he was dead. In

response, the prosecutor's closing argument stated that

it was “kind of difficult in the middle of trial to stand

up and run out and find people that the Defense wants

us to get up and start pointing fingers at. Wheeler

contends that this argument was improper for

suggesting that he had some duty to call Calloway or

had something to hide by failing to call Calloway as a

witness. Again, the Kentucky Supreme Court

determined that the argument did not deprive Wheeler

of a fundamentally fair trial, and this determination,

too, was not unreasonable. It is clear from the record

that the prosecutor's comments were made in response

to Wheeler's trial counsel's intimations that Calloway

was the real murderer.

VI. Requested Jury Instructions

Finally, Wheeler argues that the trial court's

failure to instruct the jury on voluntary intoxication

and extreme-emotional disturbance denied him a

fundamentally fair trial and thus was contrary to, or

an unreasonable application of, the Supreme Court's

holding in Beck v. Alabama, 447 U.S. 625, 100 S.Ct.

2382, 65 L.Ed.2d 392 (1980).

In capital cases, Beck requires a jury be instructed

on non-capital lesser-included offenses only if “the

evidence would permit a jury rationally to find [the

25a

defendant] guilty of the lesser offense and acquit him

of the greater.” Jd. at 635, 100 S.Ct. 2382. Moreover,

“due process requires that a lesser included offense

instruction be given only when the evidence warrants

such an instruction.” Hopper v. Evans, 456 U.S. 605,

611, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). Thus, we

must consider the facts of the case and the criminal

laws of the state to determine whether the requested

instruction on a lesser-included offense is warranted.

See Smith v. Bradshaw, 591 F.3d 517, 523~—25 (6th

Cir.2010).

To receive extreme-emotional-disturbance

instructions under Kentucky law, a defendant must

put forth evidence of a dramatic “triggering event” that

created “temporary emotional disturbance that

overwhelm [ed] the defendant's judgment.” Baze v.

Parker, 371 F.3d 310, 325 (6th Cir.2004) (citations

omitted). Wheeler, however, has made no such

showing. Neither his testimony nor any circumstantial

evidence suggested any possible triggering event that

would cause a mindless explosion of brutal violence.

The Supreme Court of Kentucky thus reasonably found

that Wheeler was not entitled to an

extreme-emotional-disturbance instruction.

The same is’ true concerning’ the

voluntary-intoxication instruction. Under Kentucky

law, this instruction is warranted only where the

evidence sufficiently indicates a voluntary intoxication

so severe that the defendant not only could not form

the intent to kill, but also did not know what he or she

was doing at the time. Harris v. Commonwealth, 313

26a

S.W.3d 40, 50-51 (Ky.2010) (citation omitted).

Although Wheeler had undoubtedly been drinking and

smoking crack cocaine the night of the murders, the

record presents no evidence suggesting that he was so

intoxicated that he could not conform his conduct to the

law. Indeed, Wheeler’s testimony as to his actions later

that evening confirmed that he was well aware of

events around him and acting of his own volition.

Again, the Supreme Court of Kentucky reasonably

reached this exact conclusion in accordance with the

Beck standard.

VII. Conclusion

For the foregoing reasons, we hold that Wheeler is

entitled to habeas relief as to his death sentence only.

The judgment of the District Court is affirmed as to the

guilt phase ofthe state trial. Contrary to our dissenting

colleague's view, however, AEDPA does not protect an

inconsistent ruling by the state trial judge based on a

mistaken memory of a juror’s earlier voir dire

testimony. The judgment, therefore, is reversed as to

the death sentence, and the case is remanded with

instructions to issue the writ of habeas corpus.

DISSENT

GRIFFIN, Circuit Judge, dissenting. Petitioner

Roger Wheeler, a Kentucky death row inmate, appeals

a federal district court order denying his petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254.

The district court granted a certificate of appealability

(COA) on ten claims, and we certified two additional

27a

claims. Unlike the majority, I conclude that petitioner

is not entitled to habeas relief on any of his claims.

Thus, I respectfully dissent.

1.

The Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA) limits federal habeas review of state

court proceedings and provides that an application for

a writ of habeas corpus shall not be granted with

respect to any claim that was adjudicated on the merits

in state court proceedings unless adjudication of the

claim:

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light

of the evidence presented in the State court

proceeding.

28 U.S.C. § 2254(d).

A state court adjudication is “contrary to” Supreme

Court precedent under § 2254(d)(1) “if the state court

arrives at a conclusion opposite to that reached by [the

Supreme] Court on a question of law[,]” or “if the state

court confronts facts that are materially

indistinguishable from a relevant Supreme Court

28a

precedent and arrives at [an opposite result].” Williams

v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146

L.Ed.2d 389 (2000). Under the “unreasonable

application” clause of § 2254(d)(1), habeas relief is

available if “the state court identifies the correct

governing legal principle from [the Supreme Court's]

decisions but unreasonably applies that principle to the

facts of the prisoner’s case[.]” Harris v. Haeberlin, 526

F.3d 903, 909 (6th Cir.2008) (citations and internal

quotation marks omitted). “In order for a federal court

to find a state court’s application of [Supreme Court]

precedent ‘unreasonable,’ the state court’s decision

must have been more than incorrect or erroneous,” but

rather “must have been ‘objectively unreasonable.’ “

Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S.Ct.

2527, 156 L.Ed.2d 471 (2003) (citations omitted). That

means

even clear error will not suffice. Rather, as a

condition for obtaining habeas corpus from a

federal court, a state prisoner must show that

the state court’s ruling on the claim being

presented in federal court was so lacking in

justification that there was an error well

understood and comprehended in existing law

beyond any possibility for fairminded

disagreement.

White v. Woodall, —— U.S. , 134 8.Ct. 1697, 1702,

188 L.Ed.2d 698 (2014) (emphasis added, citations,

quotation marks, and alterations omitted). In short,

the standard for obtaining federal habeas relief is

“difficult to meet.” Jd. (citation omitted).

29a

In the present case, the Kentucky state trial court

dismissed for cause a potential juror because he

equivocated in his responses at voir dire, claiming to be

able to apply the death penalty, while at the same time

expressing reservations about his ability to do so. The

state trial court ultimately found that Mr. Kovatch was

impermissibly biased because he “expressed

concerns about considering” the death penalty as a

sentencing option and dismissed him for cause.

Because the state trial court’s decision was neither an

unreasonable © ‘termination of the facts nor an “error

well understood and comprehended in existing law

beyond any possibility for fairminded disagreement,”

White, 134 S.Ct. at 1702, petitioner is not entitled to

habeas relief on this issue.

IT.

A.

First, petitioner Wheeler argues that the trial

court’s decision to dismiss Mr. Kovatch was based on

an unreasonable determination of the facts, thus

violating § 2254(d)(2). A trial court’s finding regarding

a juror’s bias is a finding of fact. Bowling v. Parker, 344

F.3d 487, 519 (6th Cir.2003) (citing Patton v. Yount,

467 U.S. 1025, 1036, 104 S.Ct. 2885, 81 L.Ed.2d 847

(1984)). In addition to § 2254(d)(2), § 2254(e)(1) applies

to our review of a state court’s factual determinations.

Taken together, these provisions embody the principle

that, on habeas review, federal courts must afford

substantial deference to the factual findings of a state

court.

30a

The Supreme Court has explained:

AEDPA instructs that, when a federal habeas

petitioner challenges the factual basis for a prior

state-court decision rejecting a claim, the federal

court may overturn the state court’s decision

only if it was “based on an unreasonable

determination of the facts in light of the

evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(2). The prisoner

bears the burden of rebutting the state court's

factual findings “by clear and convincing

evidence.” § 2254(e)(1). We have not defined the

precise relationship between § 2254(d)(2) and §

2254(e)(1), and we need not do so here. See Wood

v. Allen, 558 U.S. 290, 293, 130 S.Ct. 841, 175

L.Ed.2d 738 (2010). For present purposes, it is

enough to reiterate “that a state-court factual

determination is not unreasonable merely

because the federal habeas court would have

reached a different conclusion in the first

instance.” Jd., at 301, 130 S.Ct. 841.

Burt v. Titlow, —— U.S. ——., 134 S.Ct. 10, 15, 187

L.Ed.2d 348 (2013).

Petitioner argues that deference to the state trial

court’s findings of fact is not warranted because the

court misread the voir dire testimony related to Mr.

Kovatch. In other words, petitioner argues that the

transcript itself is conclusive proof that the state trial

court's conclusion about Mr. Kovatch’s bias was an

unreasonable determination of the facts. I disagree.

3la

When questioned by the trial court about whether

he could consider the death penalty, Mr. Kovatch

replied, “[p]robably with some deep reflection.” When

the state judge asked him about his beliefs about the

death penalty, Mr. Kovatch replied that he believed

there were “arguments on both sides” of the issue and

that he had not “formed an opinion one way or the

other.” The court then asked Mr. Kovatch whether he

was a member of any religious or spiritual group that

had an opinion concerning the death penalty; he

responded that “[i]t is a topic of discussion” within that

context. The prosecutor asked Mr. Kovatch if his

position was that he was not “absolutely certain

whether [he] could realistically consider” the death

penalty, and Mr. Kovatch replied “that would be the

most accurate way” to describe his position on the

death penalty. Later, during questioning by defense

counsel, Mr. Kovatch expressed his views on the death

penalty as follows:

[It is] a very philosophical topic. I think a very

difficult one. Um, the older I get, uh, perhaps

the more I understand, uh, a lot more things

about values and life itself. I have four

children, and those things are important to me.

So, uh, perhaps I'm a bit more contemplative on

the issue of taking a life and, uh, whether or not

we have the right to take that life.

However, Mr. Kovatch later indicated that he would be

able to consider “all of the [sentencing] options

presented.”

32a

The prosecutor moved to strike Mr. Kovatch for

cause, arguing that he had given inconsistent answers

regarding ‘xis ability to consider the death penalty.

Defense counsel opposed the motion, arguing that “in

the totality of his answers, clearly we've got an

individual who has some reservations about the death

penalty” but still argued that Mr. Kovatch could

consider the death penalty as an option. The state trial

judge ultimately agreed with the prosecutor that Mr.

Kovatch was impermissibly biased and dismissed him

for cause.

Based on this record, petitioner has not met his

burden to overcome the presumption of correctness

afforded to the state trial court’s fact-finding. The

record regarding Mr. Kovatch is substantially similar

to that in Jackson v. Houk, 687 F.3d 723, 739—40 (6th

Cir.2012), cert. denied, —— U.S. ——, 133 S.Ct. 1243,

185 L.Ed.2d 190. In Jackson, this court did not

disregard the AEDPA deference afforded to the state

court's factual findings, even though the record showed

that a prospective juror was “equivocal in her

responses” to questions about whether she could apply

the death penalty. Jd. at 739. Just as Mr. Kovatch in

this case opined that he was “not certain” that he

could apply the death penalty, and that he was

“contemplative” as to whether “we have the right to

take [a] life[,]” Juror 301 in Jackson indicated she

“didn’t know” whether she could apply the death

penalty. Jd. at 740 (alteration omitted). Just as Mr.

Kovatch here opined that he could consider all the

sentencing options presented, Juror 301 in Jackson

indicated unambiguously that she would “fairly

33a

consider” the death penalty, despite her reservations,

and “would try” to apply it. Jd. Thus, in Jackson, as

here, a juror expressed doubts about the wisdom of the

death penalty yet also equivocated, claiming to be able

to apply it fairly. In both cases, the juror was struck for

cause. Jackson relied on the deference owed to the

state trial court in affirming. Jd. Under the principles

of deference embodied by §§ 2254(d)(2) and (e)(1), this

case warrants the same result.

This result makes sense, moreover, given the

nature of the burdens imposed by AEDPA. Again,

under §§ 2254(d)(2) and (e)(1), this court must defer to

the state trial court’s finding that Mr. Kovatch was

biased. See Burt, 134 S.Ct. at 15. And, again, “a

state-court factual determination is not unreasonable

merely because the federal habeas court would have

reached a different conclusion in the first instance.”

Wood, 558 U.S. at 301, 130 S.Ct. 841. In other words,

if reasonable minds could differ about the correctness

of the state trial court’s fact-finding, its factual

determinations are not unreasonable under §

2254(d)(2). Here, reasonable minds could readily differ

because Mr. Kovatch equivocated in his answers about

his ability to apply the death penalty.

Petitioner also claims he is entitled to relief under

§ 2254(d)(2) for a reason left unaddressed by the

majority: that because a video record of the trial exists

in this case, deference to the trial court is improper,

and we may review de novo the facts surrounding Mr.

Kovatch’s selection. This novel argument is meritless.

First, petitioner cites no authority for the proposition

34a

that AEDPA deference is not warranted where there is

a video record of trial, and it is well-settled that

“conclusory argument|s]” made “without any further

discussion or citation to authority _—[are] waived on

appeal.” Gen. Star Natl Ins. Co. v. Administratia

Asigurarilor de Stat, 289 F.3d 434, 441 (6th Cir.2002)

(citation omitted). Second, and critically, petitioner’s

argument is essentially an argument that we ignore

the express will of Congress, which twice in AEDPA

explicitly codified the deference owed to trial courts’

findings of fact. See 28 U.S.C. §§ 2254(d)(2), (e)(1). The

Supreme Court has recognized as much, explaining

that AEDPA “provide[s] binding[ } directions to

accord deference.” Uttecht v. Brown, 551 U.S. 1, 10, 127

S.Ct. 2218, 167 L.Ed.2d 1014 (2007). Neither the

Supreme Court nor Congress has provided an exception

to AEDPA’s factual deference for cases in which a video

record of the trial exists.

For these reasons, I would deny petitioner's claim

that he is entitled to habeas relief under § 2254(d)(2).

B.

Next, petitioner Wheeler claims that he is entitled

to habeas relief under § 2254(d)(1) because Mr.

Kovatch’s dismissal was “contrary to, or involved an

unreasonable application of, clearly established federal

law.” Unlike the majority opinion, | conclude that

petitioner is not entitled to habeas relief on this claim.

For-cause dismissals in death penalty cases are

governed principally by Wainwright v. Witt, 469 U.S.

3Sa

412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Witt held

that the standard for such dismissals is “whether the

juror’s views would prevent or substantially impair the

performance of his duties as a juror in accordance with

his instructions and his oath.” Jd. at 424, 105 S.Ct. 844

(citation and quotation marks omitted). The juror’s

impartiality need not be demonstrated with

“unmistakable clarity” as “determinations of juror bias

cannot be reduced to question-and-answer sessions

which obtain results in the manner of a catechism.”

Witt, 469 U.S. at 424, 105 S.Ct. 844. Accordingly,

“there will be situations where the trial judge is left

with the definite impression that a prospective juror

would be unable to faithfully and impartially apply the

law,” despite a “lack of clarity” to this effect in the

record. Jd. at 425-26, 105 S.Ct. 844.

For precisely this reason, the Supreme Court held

in Uttecht—the most recent case to address the issue of

prospective juror dismissals—that deference to the

trial court’s determinations is required on habeas

review in such cases. The Court explained that

“[clourts reviewing claims of Witherspoon—Witt error

especially federal courts considering habeas

petitions, owe deference to the trial court, which is in

a superior position to determine the demeanor and

qualifications of a potential juror.” Uttecht, 551 U.S. at

22, 127 S.Ct. 2218. Indeed, the trial court not only has

an opportunity to “assess the demeanor of the venire

and the individuals who compose it,” which is of

“critical importance in assessing the attitude and

qualifications of potential jurors,” it is also uniquely

situated to assess “nonverbal communication”

36a

occurring in the courtroom, Jd. at 9-10, 127 S.Ct. 2218,

and to make credibility determinations that appellate

courts cannot. See United States v. Gabrion, 719 F.3d

511, 527 (6th Cir.2013) (en banc), cert. denied, —— U.S.

——., 134S.Ct. 1934, 188 L.Ed.2d 963 (2014).

Thus, “the question [for a federal court on habeas

review] is not whether [the] reviewing court might

disagree with the trial court's findings, but whether

those findings are supported by the record.” Witt, 469

U.S. at 434, 105 S.Ct. 844 (emphasis added). Because

of the deference to which a trial court’s finding is

entitled, when there is “ambiguity” in the record as to

a juror’s response to voir dire questioning, “the trial

court [is] entitled to resolve [that ambiguity] in

favor of the State.” Id.; see also Uttecht, 551 U.S. at 7,

127 S.Ct. 2218.

The majority opinion ignores these principles by

asking not whether there is evidence in the record to

support the trial judge’s finding of substantial

impairment '—which is what AEDPA requires—but

‘Petitioner asserts that the trial court did not apply Witt's

substantial impairment standard when dismissing Mr. Kovatch,

and at oral argument noted that Kentucky's standard for juror

dismissal does not tract precisely with Witt. This is not a basis for

relief. Ultimately, the trial court dismissed Mr. Kovatch because

he equivocated in his answers regarding whether the could fairly

apply the death penalty; this bias finding is a finding of substantial

impairment under Witt, even if the trial court did not precisely

quote Witt’s language. See Witt, 469 U.S. at 425 - 26 (noting that

there will be situations where a trial court is left with a definite

impression that a juror is biased, despite a “lack of clarity” to that

end in the record, and deference is appropriate in those situations).

37a

instead whether, in its judgment, the court “properly

processed [the] exchange” between Mr. Kovatch and

the prosecutor. The proper inquiry is whether the state

court's finding of substantial impairment is supported

by the record, irrespective of whether we would reach

a different result. Witt, 469 U.S. at 434, 105 S.Ct. 844.

Here, there is support in the record for the trial

court's ruling. As previously detailed, Mr. Kovatch gave

equivocal answers to questions about whether he could

apply the death penalty. Contrary to the majority

opinion’s summary of the transcript, the evidence for

Mr. Kovatch’s equivocation is not derived from a

“single question and answer exchange with the

prosecutor.” Quite the opposite: Mr. Kovatch agreed he

was not “absolutely certain” whether he could apply

the death penalty in response to a question from the

prosecutor. But, during an interchange with

petitioner's trial counsel, Mr. Kovatch expressed

doubts about “whether or not we have the right to take

[a] life.” Even petitioner's trial counsel acknowledged

that Mr. Kovatch had equivocated in his responses

when counsel opposed the prosecution's motion to have

Mr. Kovatch struck for cause. In light of the fact that

the trial court was entitled to resolve Mr. Kovatch’s

equivocation in favor of dismissal for cause, see id., the

grant of the petition for habeas corpus cannot be

reconciled with AEDPA’s requirement that a petitioner

establish that the trial court's decision was “so lacking

in justification that there was an error well understood

and comprehended in existing law beyond any

possibility for fairminded disagreement.” White, 134

S.Ct. at 1702.

38a

The majority opinion also relies on Gray uv.

Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d

622 (1986), for the proposition that the erroneous

dismissal of a prospective juror in a death penalty case

is a structural error not subject to harmless error

review. Because I conclude that Mr. Kovatch’s

dismissal was not erroneous, I would not reach this

issue. However, because the majority raises the issue,

I briefly note my disagreement with its analysis.

The majority opinion’s reliance on Gray is

misplaced in light of Uttecht, which resolves the issue

for the present case. The Supreme Court noted in

Uttecht that Gray “represents a rare case” because “in

the typical situation there will be a state-court finding

of substantial impairment; in Gray, the state courts

had found the onposite.” Uttecht, 551 U.S. at 9, 127

S.Ct. 2218. Thus, Uttecht held, Gray “is of limited

significance to the instant case” and others in which

there has been a state-court finding of substantial

impairment requiring deference under AEDPA. Jd.

In Gray, the trial judge realized during the course

of voir dire that he had mistakenly overruled a number

of the prosecutor's challenges for cause for prospective

jurors who were excludable under Witherspoon, the

prevailing standard at the time. Gray, 481 U.S. at

651-66, 107 S.Ct. 2045. The fact that the trial judge

erred in failing to dismiss the excludable jurors for

cause forced the prosecution to use all ofits peremptory

challenges. Consequently, the prosecution asked for a

dismissal of an additional prospective juror who had

said she could “reach either a guilty or not guilty

39a

verdict and that she could impose the death penalty if

the verdict were guilty.” Jd. at 654, 107 S.Ct. 2045. The

trial judge made no finding that the prospective juror

was excludable and dismissed her as “a sort of

‘make-up’ for the challenges for cause the trial judge

wrongfully denied.” David McCord, Is Death “Different”

for Purposes of Harmless Error Analysis? Should It

Be?: An Assessment of United States and Louisiana

Supreme Court Case Law, 59 La. L.Rev. 1105, 1138

(1999). No such circumstance exists here. Here, the

trial judge found that Mr. Kovatch was impermissibly

biased because he “expressed concerns about

considering” the death penalty as a sentencing option.

Thus, as in Uttecht, Gray is of “limited significance” * in

*The majority opinion also paints an incomplete picture of

the Supreme Court's harmless error doctrine in this context by

failing to mention Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273,

101 L.Ed.2d 80 (1988). Ross, decided only a year after Gray, cast

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

the statement that any error which affects the composition

of the jury must result in reversal defies literal

application. If, after realizing its error, the trial court in

Gray had dismissed the entire venire and started anew.

the composition of the jury would undoubtedly have been

affected by the original error. But the Gray majority

concedes that the tnal court could have followed that

course without risking reversal. Jd. at 87 n.2. 108 S.Ct.

2273.

Indeed, there is reason to believe that

the Ross Court largely overruled [Gray ] by

shifting the focus from the possible effect on the

composition of the jury pane! as a whole to the

very narrow-and unlikely-to-arise-right of the

40a

this case because, unlike in Gray, the trial court found

Mr. Kovatch was substantially impaired. Under

AEDPA, this court is required to defer to the state

court’s ruling unless it violated §§ 2254(d)(1) or (d)(2).

And, for the reasons I outline above, it did not.

Ill.

Next, Wheeler appeals the trial court’s admission

of evidence that Warfield was pregnant at the time she

was killed. On direct appeal in the state appellate

courts, petitioner framed this issue primarily as a

violation of Kentucky state law—petitioner argued that

the admission of this evidence violated Kentucky Rule

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

Constitution, which provide for a right to a fair trial;

and the Fourteenth Amendment of the Federal

Constitution. The Kentucky Supreme Court concluded

that the admission of the evidence was proper under

defendant to not have a death-qualified juror

disqualified when it is clear that juror would have

been umpaneled because the prosecution was fresh

out of peremptory challenges.

McCord, 59 La. L.Rev. at 1138. The ultimate issue is ‘whether the

constitutional focus should be, as in Gray, on the composition of

the jury panel as a whole, or as in Ross, on whether the jurors who

were impaneled were qualified to sit.” Jd. And, because a qualified

juror’s exclusion from the venire tells us nothing about the

qualifications of the jurors ultimately impaneled, “it seems hard to

say that a defendant's death sentence is faulty when it was

rendered by properly qualified jurors.” Jd. In any event, as noted

above, Uttecht resolves the issue in this case.

4la

Kentucky law and that “[t]he pregnancy of the female

victim was not sensational or shocking or prejudicial or

likely to induce any undue sympathy. The brief

reference to her pregnancy was fair comment to explain

her identity. It did not deprive [petitioner] of a fair

trial.” Wheeler v. Commonwealth, 121 S.W.3d 173, 181

(Ky.2003) (citation omitted).

“In conducting habeas review, a federal court is

limited to deciding whether a conviction violated the

Constitution, laws, or treaties of the United States.”

Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 116

L.Ed.2d 385 (1991). “[I}t is not the province of a federal

habeas court to reexamine state-court determinations

on state-law questions.” Jd. at 67-68, 112 S.Ct. 475.

Thus, “errors in application of state law, especially

with regard to the admissibility of evidence, are

usually not cognizable in federal habeas corpus.” Bey v.

Bagley, 500 F.3d 514, 519 (6th Cir.2007) (citation and

quotation marks omitted). Thus, to the extent that

petitioner claims that the admission of evidence related

to Warfield’s pregnancy contravened Kentucky’s laws

or it rules of evidence, those claims are not cognizable

on federal habeas corpus review.

However, where, as here, a habeas petitioner

argues that the allegedly improper admission of

evidence “was so prejudicial that its admission

rendered his entire trial fundamentally unfair” under

the Federal Constitution, we may address the claim as

a federal due process claim where the state court's

“prejudice inquiry ... bears at least ‘some similarity’ to

a determination” of the due process claim he raises in

42a

his habeas petition. Jd. at 519-20 (quoting Maldonado

vu. Wilson, 416 F.3d 470, 474 (6th Cir.2005)). Here,

petitioner’s due process claim bears “some similarity”

to the state-law claim decided by the Kentucky

Supreme Court. Compare Petitioner's Br. at 38—50,

with Wheeler, 121 S.W.3d at 181. Accordingly, as in

Bey, I review this claim under a “modified AEDPA

standard, which requires us to conduct a careful review

of the record and applicable law, but nonetheless bars

us from reversing unless the state court’s decision is

contrary to or an unreasonable application of federal

law, i.e., Supreme Court precedent.” Bey, 500 F.3d at

520 (citation, quotation marks, and alterations

omitted). And, because the Kentucky Supreme Court’s

“prejudice inquiry relied entirely on [Kentucky] law

without any reference to federal law,” this court “need

not consider whether that decision resulted in an

unreasonable application of federal law.” Bey, 500 F.3d

at 520. Rather, “[w]Je need only look to the question of

whether the [Kentucky] Supreme Court's decision is

contrary to federal law.” Jd.

With this framework in mind, I turn to the

evidence of Warfield’s pregnancy. During pre-trial

proceedings, petitioner’s trial counsel moved to exclude

evidence of Warfield’s pregnancy as irrelevant under

Kentucky Evidence Rule 401. In opposition, the

prosecutor argued that the evidence should be

admitted because it humanized the victim. Relying

upon Sanborn v. Commonwealth, 754 S.W.2d 534, 542

(Ky.1988), and McQueen v. Commonwealth, 669S.W.2d

519 (Ky. 1984), the trial court overruled petitioner's

trial counsel's motion, but instructed the parties that

43a

the evidence should not be “unduly emphasized” or

used as a basis for argument. Petitioner's trial counsel

asked the court to reconsider its ruling out of concern

that a juror may have an emotional response to the

evidence and subsequently consider the crime a triple

homicide rather than a double homicide. The trial court

re-affirmed its ruling.

At trial, during the prosecution’s case-in-chief, the

first reference to Warfield’s pregnancy occurred during

testimony by an assistant medical examiner for the

Commonwealth of Kentucky, Amy Burrows, M.D., who

performed the autopsy. Dr. Burrows testified that she

discovered Warfield’s pregnancy during the autopsy

when she saw a “small embryo in an—in a little sac

with a placenta.” The trial court overruled petitioner's

trial counsel's objection to that testimony.

A second reference to Warfield’s pregnancy

occurred at the close of the evidence for the guilt phase.

In its closing argument, the prosecutor referred to

Warfield’s pregnancy in an effort to humanize her to

the jury:

And what about Nairobi? They

didn’t find drugs in her system.

Nobody has ever said she was a drug

dealer. What about her? What about

her life? Autopsy told you (inaudible)

she didn’t have any alcohol in there.

There’s no drugs. She was pregnant.

I mean, she’s a normal person. She

just loved a guy named Nigel. He

44a

loved her. They lived together in the

west end, and they die [d] because of

that. And we're supposed to believe

that’s okay.

Petitioner's trial counsc! did not object.

Initially, petitioner argues that the above evidence

was irrelevant because “[njeither Warfield nor

[petitioner] knew Warfield was pregnant” and submits

case law from state courts in Florida, Texas, Indiana,

and Kansas in support of the proposition that where,

as here, a victim is not visibly pregnant, evidence of

her pregnancy is not relevant in a homicide case.

However, the Kentucky Supreme Court, interpreting

Kentucky law, has already held in this case that the

evidence was admissible and not prejudicial,

particularly in light of the “brief” role it played in the

trial. See Wheeler, 121 S.W.3d at 181. And, in any

event, these state-law decisions from other states do

not establish that the Kentucky Supreme Court's

decision in this case was contrary to clearly established

federal law.

Petitioner does rely on one federal case, however:

White v. Thaler, 610 F.3d 890 (5th Cir.2010). There, a

Texas state jury convicted the petitioner, Wendell

White, of the aggravated murder of Latasha Vasquez

and the aggravated assault of Tracey Johnson after

running over each of them with a pickup truck. Jd. at

892. On appeal, White alleged, among other things,

that trial counsel was ineffective for failing to object to

the introduction of evidence of Vasquez’s pregnancy. Jd.

45a

at 894. The Texas Court of Criminal Appeals (TCCA)

and the federal district court rejected this claim. Jd. at

894-95. The Fifth Circuit disagreed with the state and

federal district courts, concluding that trial counsel's

failure to object to such evidence constituted deficient

performance because the evidence had “no probative

value,” Texas state law did not support the admission

of the evidence, and trial counsel indicated that no

strategy gave rise to their decision. Jd. at 907-09.The

Fifth Circuit determined that White suffered prejudice

as a result because “the evidence that White intended

to kill Vasquez pales in comparison to the evidence

that White intended to run over Johnson.” Id. at 912.

The court further explained that the record belied the

TCCA’s characterization of the references to Vasquez’s

pregnancy as “brief,” explaining:

We do not necessarily agree with the TCCA’s

assessment that the testimony and argument

with respect to the victim’s pregnancy was

“brief.” Defense counsel brought up the victim's

pregnancy twice during the direct examination of

White and three times during closing argument.

The prosecutor asked two questions regarding

the fetus and referred to the unborn child twice

during closing argument. In total, the jury was

reminded nine times during the guilt-innocence

phase that Vasquez’s unborn child died as a

result of White's actions. Further, the

prosecutor's closing argument regarding the

unborn child being killed as the victim was

“dragged” and “crushed” by the truck was likely

to appeal to the jury's emotions and encourage

46a

the jury to make its guilt-innocence decision on

an emotional basis.

Id. at 911-12.

White does not entitle petitioner to habeas relief. As an

initial matter, even if 1 were to conclude that the

Kentucky Supreme Court’s decision in this case was

“contrary to” White, that case is not a Supreme Court

precedent—thus, petitioner could still not establish

that the Kentucky Supreme Court's decision was

“contrary to [clearly established] federal law.” Bey, 500

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

Regardless, White is distinguishable. Unlike

petitioner, White raised a federal constitutional claim

that is cognizable on habeas review—the ineffective

assistance of counsel. Our review of petitioner's claim

is far more circumscribed than was the Fifth Circuit's

of White’s claim. Because petitioner raises a due

process claim, this court may only grant relief if the

admission of the evidence of Warfield’s pregnancy was

“so prejudicial that it violated [petitioner's] right to a

fundamentally fair trial.” Pudelski v. Wilson, 576 F.3d

595, 613 (6th Cir.2009). Petitioner's trial was not

fundamentally unfair. Unlike in White, the trial court

in the instant case limited the references to Warfield’s

pregnancy, which was mentioned twice during a trial

that lasted se~eral weeks, and no reference was made

to any harm suffered by the embryo.

Further, prosecutors presented substantial

evidence of petitioner’s guilt, which included—unlike

in White—substantial evidence of his intent to commit

47a

the crimes. Malone was stabbed nine times. The fatal

wound was the one that punctured his heart. Warfield

was strangled to death. Petitioner testified that when

he arrived at the apartment he saw Malone “laying

face down by the back door in a pool of blood” and that

he did not know Warfield was there. However, expert

testimony established that blood found on Warfield’s

thigh matched petitioners DNA. According to

petitioner, a masked assailant armed with a knife was

the real killer, and petitioner fought with him at the

apartment, suffering wounds on his hands and arms as

a result. Petitioner testified that he did not go to the

police due to his crack cocaine use. But, petitioner

testified, following what he allegedly witnessed at the

apartment, he bought band-aids, went to his mother’s

house, visited friends, bought beer, and visited other

friends to smoke crack. “Intent to kill can be inferred

from the extent and character of a victim’s injuries,”

and “because a person is presumed to intend the logical

and probable consequences of his conduct, a person’s

state of mind may be inferred from actions preceding

and following the charged offense.” Hudson v.

Commonwealth, 979 S.W.2d 106, 110 (Ky.1998)

(citation and quotation marks omitted). Here, the

brutality of the injuries and Wheelers conduct

immediately after the crime, as well as his failure to

truthfully answer police inquiries, constitute

significant evidence of his guilt.

Additionally, petitioner notes that his case and one

Kentucky Supreme Court Justice’s dissent on the issue

of Warfield’s pregnancy in his direct appeal became a

topic of discussion in the electoral race for the

48a

Kentucky Supreme Court years after the issuance of

the Kentucky Supreme Court’s decision. This

argument, perhaps obviously, is unpersuasive. Putting

aside the fact that what happened in an election three

years after petitioner’s direct appeal has no bearing on

what happened at his trial—and thus, could not have

been a source of prejudice at that trial—this argument

has nothing whatsoever to do with federal law.

In short, petitioner has failed to persuade me that

the admission of evidence related to Warfield’s

pregnancy rendered his trial fundamentally unfair.

Accordingly, no habeas relief is appropriate on this

claim.

IV.

Next, petitioner argues that the trial court

improperly admitted evidence as to the availability in

the future of prison furloughs. Specifically, petitioner

argues that, through this evidence, the jury was led to

believe that “unless [it] imposed a sentence of death,

[petitioner] might one day be released into the

community on furloughs,” which petitioner argues was

“irrelevant speculation that unfairly tilted the evidence

in favor of a death sentence in violation of [his]

constitutional right to a reliable capital sentencing

determination.”

This court may only review claims that have not

been procedurally defaulted.

49a

A habeas petitioner procedurally defaults a claim

if: (1) the petitioner fails to comply with a state

procedural rule; (2) the state courts enforce the

rule; (3) the state procedural rule is an adequate

and independent state ground for denying review

of a federal constitutional claim: and (4) the

petitioner cannot show cause and prejudice

excusing the default.

Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.2010)

(citation and internal quotation marks omitted).

This claim is procedurally defaulted. Petitioner

acknowledges that he failed to raise this claim on

direct appeal, raising it for the first time in his state

post-conviction proceeding. Thus, petitioner “failfed] to

comply with [Kentucky's] procedural rule[,]” id.,

namely that a post-conviction proceeding is not the

place for a “convicted defendant to retry issues which

could and should have been raised in the original

proceeding, nor those that were raised in the trial court

and upon an appeal considered by [the Kentucky

Supreme Court].” Thacker v. Commonwealth, 476

S.W.2d 838, 839 (Ky.1972). Consistent with this rule,

on his state post-conviction appeal, the Kentucky

Supreme Court “enforce[d] the rule[,}” Guilmette, 624

F.3d at 290, when it declined to review the merits of

this claim. Wheeler, 2008 WL 5051579, at *9 (If

Appellant wanted to challenge the [furlough] evidence

presented at trial, he should have done so in his direct

appeal, not by means of a [post-conviction collateral

proceeding].”). This is an independent and adequate

state ground for denying review. See Lucas v. O'Dea,

50a

179 F.3d 412, 418 (6th Cir.1999). Nor has petitioner

demonstrated cause and prejudice to excuse this

default. Although petitioner asserted in the district

court that his direct-appeal counsel's failure to raise

this issue amounted to cause and prejudice to excuse

the default, he does not do so in this court. Accordingly,

petitioner has abandoned his argument that cause and

prejudice exist to overcome the procedural bar. See

Post, 621 F.3d at 427.

vi

Petitioner next raises another claim related to

evidence of furloughs. Specifically, he claims that his

trial counsel was ineffective for introducing testimony

that he had received furloughs during his previous

incarceration. Petitioner argues that this testimony

“suggest[ed] to the jury, and open{[ed] the door for the

jury to conclude [that] the defendant could receive

a furlough during which he could commit another

violent crime” and “opened the door for the prosecution

to utilize the furlough evidence to prejudice the jury, to

play up [petitioner’s] violent criminal history and

failure to learn a lesson in prison, and to let the jury

know it was possible [petitioner] could receive a

furlough if sentenced to less than death.”

The general standards governing a claim of

ineffective assistance of counsel are set forth in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). To demonstrate

ineffective assistance of counsel, “[a] petitioner must

show that counsel’s performance was deficient, and

Sila

that the deficiency prejudiced the defense.” Wiggins,

539 U.S. at 521, 123 S.Ct. 2527 (citing Strickland, 466

U.S. at 687).

In the context of a death sentence, the question of

prejudice turns on “whether there is a reasonable

probability that, absent the errors, the

sentencer—including an appellate court, to the

extent it independently reweighs the

evidence—would conclude that the balance of

aggravating and mitigating circumstances did

not warrant death.”

Hill v. Mitchell, 400 F.3d 308, 314 (6th Cir.2005)

(quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052).

“When § 2254(d) applies, the question is not whether

counsel's actions were reasonable. The question is

whether there is any reasonable argument that counsel

satisfied Strickland ‘s deferential standard.”

Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 788,

178 L.Ed.2d 624 (2011). I conclude that petitioner has

not shown that his counsel's conduct with regard to the

furlough testimony was contrary to, or an unreasonable

application of, Strickland.

At the penalty phase, petitioner's counsel

introduced a variety of evidence intended to establish

that petitioner had been a model prisoner during

previous incarcerations, including evidence of

furloughs. For example, petitioner's trial counsel

introduced the testimony of Michael Cooper, an

employee at the Luther Luckett Correctional Complex

where petitioner had served a prior incarceration.

52a

Cooper testified that petitione worked for him as a

janitor in the Property Room and exhibited a “good

work ethic” and required “very, very little supervision.”

Cooper testified he was not aware of any disciplinary

action ever being taken against petitioner. According to

Cooper, petitioner received two furloughs while

incarcerated. Cooper added that he did not know

whether prisons still offered furloughs, but did know

that none had been granted “for several years” and

noted that such a grant was “extremely rare.”

Petitioner's counsel also introduced the testimony

of Robin Rawlings, who had recently worked as a

Classification and Treatment Officer with the

Department of Corrections and as a Probation and

Parole Officer with the Commonwealth's Department

of Justice. Rawlings testified that, as an inmate,

petitioner worked as a janitor in the administration

building, which included the offices for the prison

warden and the deputy warden. Rawlings indicated

that she spoke with petitioner every day, and she was

not aware of any complaints, conflicts, or problems

from either the staff or other inmates regarding him.

Rawlings also worked with petitioner within a small

group setting to assist inmates with their chemical

dependency issues. Prison life is “very regulated and

dictated by rules{,]” according to Rawlings, and

petitioner was a “model inmate.”

Rawlings was also queried about furloughs. To that

end, Rawlings testified that, based on the policy in

place at the time she was employed at the prison, she

was “positive” that petitioner would not be eligible for

S3a

a furlough given his two murder convictions. On

cross-examination, the prosecutor also asked Rawlings

about furloughs:

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

as furloughs are concerned, there was a time

when individuals who were convicted of murder

were granted furloughs, is that correct?

ROBIN RAWLINGS: Yes, sir, that’s true.

[PROSECUTOR]: Okay, and they changed the

policy at some point, right?

ROBIN RAWLINGS: Yes, they did.

[PROSECUTOR]: Okay, and you can't, uh, tell

this jury what the policy is going to be in the

future, 20, 30 years? You don't know that, do

you?

ROBIN RAWLINGS: That's true, sir.

[PROSECUTOR]: Okay, policies change?

ROBIN RAWLINGS: Yes, they do.

The record indicates that, when introducing

testimony about petitioner's prior furloughs,

petitioner's trial counsel was attempting to obtain a

sentence other than death for petitioner. For example,

during closing arguments, petitioner's trial counsel

stated:

S4a

We're not saying that these people did not suffer

or that their families do not continue to suffer.

We are telling you that the death penalty is not

your only option. If you find the mitigation, if

you find any redeeming qualities, and there are

some there, you should give him his life.

Testimony by Cooper and Rawlings showed that

Wheeler worked well within the _ structured

environment of prison during the time of his previous

incarceration. Whevler had already admitted to being

a convicted felon during his guilt-phase testimony. At

the penalty phase, the prosecution introduced evidence

that petitioner pleaded guilty to ten counts of robbery

on November 20, 1991, for which he was sentenced to

twenty years of imprisonment, and that, later, on

August 13, 1998, petitioner was convicted for illegal

possession ofa controlled substance (cocaine), for which

he received a sentence of one year.

In the context of this record, petitioner’s counsel

argued that petitioner suffered from a drug addiction

but could otherwise thrive within the structured

environment of prison life:

When you think of these offenses, I would think

of someone who's been in trouble all their lives,

who's never been responsible, who's never been

stable, who could never hold a job, who could

never find someone to love him or care about

him. But that’s not what we found here in the

case of Roger Wheeler. We have found someone

who has been, at one time, responsible and

SSa

capable and stable and able to work and able to

contribute, and I think he can still contribute in

the penitentiary.

Based on this record, I conclude that petitioner 1s

not entitled to relief on this claim. A petitioner has a

constitutional right to present testimony during the

penalty phase about his good behavior while

incarcerated. See Skipper v. South Carolina, 476 U.S.

1, 4, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). That is what

petitioner's trial counsel did. The inclusion of the

furlough testimony simply emphasized the benefit that

petitioner derived from incarceration. It also showed

the trust he had earned with prison officials. Moreover,

our precedent buttresses my conclusion. In Campbell

uv. Bradshaw, 674 F.3d 578, 588 (6th Cir.2012), this

court concluded that trial counsel was not ineffective

for introducing the petitioner’s entire incarceration

record during the penalty phase of trial because it was

“part of a strategic effort to be candid with the jury

about Campbell’s past in an effort to gain credibility

and, ultimately, obtain a life sentence for Campbell.”

No prejudice resulted in that case because a mental

health expert addressed the same information and the

jury heard much of the negative information from other

sources. Jd. at 589. The same thing occurred here and

thus the same result is warranted. Notwithstanding

the furlough testimony, the jury was aware that

petitioner had served only a fraction of his twenty-year

sentence from his prior convictions.

VI.

S6a

Petitioner raises yet another ineffective assistance

of counsel claim related to the furlough testimony.

Specifically, petitioner argues that his counsel was

constitutionally defective for failing to object when the

prosecutor cross-examined Rawlings about the

potential availability of future furloughs and when the

prosecutor raised the furloughs issue in closing

arguments. I disagree.

Initially, as for his claim regarding his counsel's

failure to object at oral argument, petitioner has

procedurally defaulted this claim. Petitioner did not

raise this claim in state court. Under Kentucky’s rules

of criminal procedure, petitioner had three years “after

the judgment [became] final” to raise this issue. Roach

v. Commonwealth, 384 S.W.3d 131, 135 (Ky.2012).

That time has now passed. Thus, petitioner has failed

to comply with a state procedural rule, and that rule is

an independent and adequate state ground for denying

review of this claim. See Gutlmette, 624 F.3d at 290; see

also Lucas, 179 F.3d at 418. Accordingly, petitioner has

procedurally defaulted this claim. See Lovins v. Parker,

712 F.3d 283, 293 (6th Cir.2013) (“[A] claim is

procedurally defaulted where the petitioner failed to

exhaust state court remedies, and the remedies are no

longer available at the time the federal petition is filed

because of a state procedural rule.”).

Nor is habeas relief appropriate on petitioner's

claim regarding his counsel's failure to object during

Rawlings’ cross-examination. This claim is not

procedurally defaulted, as petitioner raised it in his

state post-conviction relief proceedings. However,

S7a

petitioner cannot show deficient performance or

prejudice arising from his trial counsel’s failure to

object to the prosecution's cross-examination of

Rawlings. As the Kentucky Supreme Court noted, the

information contained within that testimony was

accurate and not misleading. Wheeler, 2008 WL

5051579, at *10. Petitioner's concern about the

speculative nature of Rawlings testimony is also

unavailing. In California v. Ramos, 463 U.S. 992, 1004,

103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), the Supreme

Court rejected a similar argument—that a jury should

not be instructed that a governor has the power to

commute a sentence of life without parole as

speculative and misleading—because the instruction in

question “gives the jury accurate information of which

both the defendant and his counsel are aware, and it

does not preclude the defendant from offering any

evidence or argument regarding the Governor's power

to commute a life sentence.” The same is true here.

VI.

Petitioner also claims his counsel was ineffective

for failing to: (1) elicit from petitioner that his shoe size

was larger than that of the bloody footprint found at

the crime scene by the police; (2) elicit from petitioner

that he possessed the shoes that he wore on the night

of the murders; and (3) retain a shoe expert. I address

each part of this claim in turn, ultimately concluding

that none entitles him to habeas relief.

Initially, I conclude that petitioner has

procedurally defaulted his claim that his counsel

58a

should have elicited testimony from him about his shoe

size. Petitioner did not present this claim to the state

courts and no state remedy now exists for doing so. See

Lovins, 712 F.3d at 293; Guilmette, 624 F.3d at 290;

Lucas, 179 F.3d at 418. And, petitioner does not

attempt to show cause and prejudice to cure the

default.

Nor is relief proper as to the other two parts of this

claim. During his guilt-phase direct testimony,

petitioner recounted the day of his arrest, indicating

that he was wearing “shower shoes.” The prosecutor

then objected. At sidebar, the prosecutor noted that

petitioner's trial counsel had indicated that they hada

pair of petitioner's tennis shoes in their possession; the

prosecutor objected to the admission of the shoes

because no chain of custody had been established and

the shoes had been unaccounted for since the day of

petitioner's arrest, more than three years prior to trial.

The trial court sustained the objection. Following the

conclusion of petitioner's testimony, petitioner's trial

counsel! offered petitioner's testimony concerning the

tennis shoes by avowal. Petitioner explained that he

changed from flip-flops to tennis shoes when the police

arrived at his mother’s home to arrest him: the tennis

shoes were located in his bedroom. Petitioner testified

that the tennis shoes had been in his possession as part

of his personal property at the jail for all that time.

Petitioner argues that his trial counsel's failure to

ask Wheeler whether he wore the tennis shoes on the

night of the murders resulted in prejudice because

“[t]he jury had to decide whether to believe

S9a

[petitioner's] version of events surrounding the

murders based solely on his testimony, which was

inconsistent with what he told police in his pretrial

statements,” arguing that the admission of the shoes

would have served as “concrete corroboration” of his

testimony and “would have greatly enhanced his

credibility.” However, petitioner omits one critical

point: without knowing Warfield’s and Malone’s shoe

sizes to exclude the possibility that the bloody footprint

belonged to one of them, he cannot demonstrate

prejudice. And, as the magistrate judge and the district

court noted, petitioner did not suffer prejudice given

his lack of credibility because his “blood was found

throughout the apartment including the very bedroom

where [Warfield’s] body was discovered. He repeatedly

lied about his presence there to the police. He and his

friend attempted to encourage perjury from another

witness, Tracy Warrick, about the source of

[petitioner's] knife wound on his left forearm.”

As for petitioner's claim regarding his counsel's

failure to call a shoe expert, I note that, in his state

post-conviction proceeding, petitioner asserted that

“(nJo expert testimony would be required for the jurors

to compare the shoes with the shoe prints at the scene.

A layperson could determine this fact.” Wheeler, 2008

WL 5051579, at *6. The Kentucky Supreme Court

considered this admission “tantamount to a concession

that lack of an expert was not ineffective assistance.’

Id. | agree. Moreover, petitioner did not even make his

own counsel aware of the alleged shoe size discrepancy

until the middle of trial, when his trial counsel had no

reasonable opportunity to retain such an expert on

60a

short notice. In light of these facts, I cannot conclude

that the Kentucky Supreme Court unreasonably

apphed Strickland by determining that petitioner was

not prejudiced by the lack of a shoe expert.

VII.

Next, petitioner claims his trial counse] was

ineffective for failing to call a witness, Earl Ricketts.

Jr., to contradict the testimony of a prosecution

witness, Denise Mumpfort. I disagree.

Mumpfort was an employee of the B-Line

convenience store in October 1997, near the apartment

building where the murders occurred. She testified

that she worked from 10 p.m. on October 1 to 6 a.m.

the following day. Mumpfort testified that she knew

who petitioner was “(bly friends and coming in the

store” on previous occasions. Addressing the night of

the murders, the following exchange occurred between

the prosecutor and Mumpfort:

DENISE MUMPFORT: The night he came in the

store, he came up to the counter, and I had

asked him what had happened to him.

[PROSECUTOR]: Why did you ask him that?

DENISE MUMPFORT: Because he had blood on

his head and had like finger cuts, looked like

paper cuts on fingers.

6la

ALEX DATHORNE: Okay, with blood on his

head and finger—and cuts on his fingers”

DENISE MUMPFORT: Yes.

[PROSECUTOR]: Okay, and did he have any

blood on his clothes?

DENISE MUMPFORT: Yes, on his jacket.

[PROSECUTOR]: And you asked him what had

happened. What did he say?

DENISE MUMPFORT: He said his Little girl hit

him in the head with something.

Later, the two discussed the amount of blood that

Mumpfort had observed on petitioner:

[PROSECUTOR]: Okay. Do you remember

whether there was a lot of blood or a little bit of

blood, or what was it, if you remember?

DENISE MUMPFORT: Hmm, it just looked like

somebody just, you know, poured it on his head.

[PROSECUTOR]: So he had a lot of blood?

DENISE MUMPFORT: Sort of, on his head.

Majority of it was on his head.

The police also interviewed Ricketts and

prepared a report, which stated as follows:

62a

Upon meeting with Mr. Ear) Ricketts Jr. at the

above location, it should be noted that he is the

security guard at this location. I showed Mr.

Ricketts a photo pack and he was unable to

positively ID anyone.

He did state that a black male subject had come

into the B-Line sometime after 1 a.m. on the

night of the murders. He advised that this

subject came in with blood on [the] right side of

his neck and his hands. The subject told Mr.

Ricketts that he was wrestling with his

daughter and needed a band aid.

In support of his argument that his counsel should

have called Ricketts, petitioner provides an affidavit

from Douglas Blair, an investigator employed by the

Department of Public Advocacy, who indicated that he

had conducted a telephone interview with Ricketts,

who told him that “Wheeler did not appear to have

blood poured over his head” and that Wheeler “only

had some blood on his collar and his hands.”

Petitioner can demonstrate neither deficient

performance nor prejudice as a result of his counsel’s

failure to call Ricketts. See Otte v. Houk, 654 F.3d 594,

601-02 (6th Cir.2011) (citing Strickland, 466 U.S. at

687, 104 S.Ct. 2052). As for Strickland ‘s deficient

performance prong, petitioner argues that Ricketts’

training as a security guard made him “uniquely

credible” because he held a “position of trust” in

comparison to Mumpfort. To this end, petitioner relies

on Workman v. Tate, 957 F.2d 1339 (6th Cir.1992).

63a

There, this court held that trial counsel was ineffective

for failing to interview and present the testimony of the

only two witnesses to an arrest who could have

provided direct, contradictory evidence to that offered

by the arresting police officers. Jd. at 1345-46. Those

are not the facts here. Ricketts’ testimony would not

have directly contradicted Mumpfort’s in any material

way. Both Ricketts’ and Mumpfort’s account of

petitioner on the night of the murder involved the

presence of blood on petitioner's person; the only

disagreement between their accounts is the amount.

The presence of blood, rather than the quantity of it, is

the more important detail given petitioner’s testimony

that he fought the alleged assailant who was armed

with a knife. Moreover, it is not a certainty that simply

because Ricketts held a purported “position of trust”

that the jury would have believed him and not

Mumpfort. Thus, petitioner has failed to show that

counsel was deficient for not calling Ricketts. As for

Strickland ‘s prejudice prong, petitioner cannot

demonstrate prejudice because—as discussed—there

was substantial evidence of his guilt in any event.

Accordingly, petitioner has failed to establish that his

trial counsel's failure to call Ricketts resulted in a

decision contrary to, or an unreasonable application of,

Strickland.

IX.

Petitioner also challenges the penalty-phase jury

instructions, alleging that they violated Mills uv.

Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d

384 (1988), by improperly instructing jurors that they

64a

were required to be unanimous regarding the presence

of mitigating factors. I disagree.

“The Constitution forbids imposition of the death

penalty if the sentencing judge or jury is ‘precluded

from considering, as a mitigating factor, any aspect of

a defendant's character or record and any of the

circumstances of the offense that the defendant

proffers as a basis for a sentence less than death.’ “

Henness v. Bagley, 644 F.3d 308, 328 (6th Cir.2011)

(quoting Smith v. Spisak, 558 U.S. 139, 130 S.Ct. 676,

681-82, 175 L.Ed.2d 595 (2010)). “A challenge to a jury

instruction is not to be viewed in ‘artificial isolation,’

but rather must be considered within the context of the

overall instructions and trial record as a whole.”

Hanna v. Ishee, 694 F.3d 596, 620-21 (6th Cir.2012)

(citing Estelle, 502 U.S. at 72, 112 S.Ct. 475. “To

warrant habeas relief, ‘jury instructions must not only

have been erroneous, but also, taken as a whole, so

infirm that they rendered the entire trial

fundamentally unfair. The burden is even greater than

that to demonstrate plain error on appeal.’ “ Buell v.

Mitchell, 274 F.3d 337, 355 (6th Cir.2001) (quoting

Scott v. Mitchell, 209 F.3d 854, 882 (6th Cir.2000))).

Petitioner's claim lacks merit. Essentially,

petitioner's argument is that because the jurors were

instructed that their verdict had to be unanimous, but

the trial court was silent in instructing them about

unanimity as applied to mitigating factors, the jurors

must have inferred that their mitigating-factor

determination must also be unanimous. However, “[i]n

this Circuit, failing to expressly state that mitigating

65a

factors need not be unanimously found does not

improperly imply that mitigating factors must be

unanimously found.” Williams v. Anderson, 460 F.3d

789, 808 n. 5 (6th Cir.2006). Here, the trial court used

the word “unanimous” only once, to explain that the

verdict must be so: “The verdict of the jury must be in

writing, must be unanimous, and must be signed by

one of you as Foreperson.” The verdict form required

only that the jury find an aggravating circumstance to

recommend the death sentence. Requiring a

unanimous verdict as to the sentence is_ not

unconstitutional. See Moore v. Mitchell, 708 F.3d 760,

794 (6th Cir.), cert. denied, —— U.S. , 134 S.Ct.

693, 187 L.Ed.2d 559 (2013). Unlike in Mills, the jury

instructions here did not, either explicitly or implicitly,

require a unanimous finding of mitigating

circumstances. Accordingly, the trial court’s decision

was not contrary to, or an unreasonable application of,

Mills.

X.

Petitioner next claims that several statements by

the prosecutor amounted to misconduct; he alleges that

these statements denied him a fundamentally fair trial

in violation of his constitutional due process rights. I

disagree.

A petitioner faces a high bar when bringing claims

of prosecutorial misconduct. “For the prosecutor's

misconduct to violate the defendant's due process

rights, it ‘is not enough that the prosecutor's remarks

were undesirable or even universally condemned’:

66a

instead those comments must’so infect[ ] the trial with

unfairness as to make the resulting conviction a denial

of due process.’ “ Beuke v. Houk, 537 F.3d 618, 646 (6th

Cir.2008) (quoting Darden v. Wainwright, 477 U.S.

168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)).

Indeed, “[t]he prosecution... has ‘wide latitude’ during

closing argument to respond to the defense’s strategies,

evidence and arguments.” Bedford v. Collins, 567 F.3d

225, 233 (6th Cir.2009) (quoting United States v.

Henry, 545 F.3d 367, 377 (6th Cir.2008)). I conclude

that this latitude was properly exercised here.

Accordingly, petitioner has not established that the

prosecutor's statements resulted in a denial of due

process that was contrary to, or an unreasonable

application of, clearly established federal law. 28

U.S.C. § 2254(d)(1); Beuke, 537 F.3d at 646.

Petitioner's first claim of prosecutorial misconduct

involves the prosecutor's reference, during closing

arguments, to the defense theory of the case as a

“trick.” The prosecutor stated: “So [defense counsel]

gets up and said, ‘Well, the shoeprint, that’s the most

telling of all.’ Forget about all that DNA, forget about

all the lies. It’s called the defense trick. Look away,

look away, look away. Don't look at the facts.” Defense

counsel objected, but the trial court overruled the

objection because the prosecutor was merely

“commenting [that] this is [petitioner's] theory of the

case.” I agree with the trial court—petitioner’s counsel

did rely on alleged inconsistencies in the shoeprint

evidence. For example, petitioner's counsel argued

that, because two shoeprints supposedly did not match,

“[t]here were obviously two other people in that home”

67a

when the murders occurred. Similarly, petitioner's

counsel asserted: “There had to be more than one

person. The shoeprint evidence tells you that. . .. Now

if these shoeprints would have fit those of [petitioner's]

you would have heard that evidence. Those aren't

[petitioner's] shoeprints.” Thus, it is clear that the

prosecutor's argument was in response to petitioner’s

counsel's argument and was not improper. In any case,

petitioner’s claim in this regard does not show that he

was denied due process. Beuke, 537 F.3d at 646.

Petitioner also claims that the prosecutor's closing

argument was constitutionally improper because the

prosecutor “fault{ed petitioner] for not presenting

crucial evidence and implying the evidence was

inculpatory even though the evidence was not

presented solely because the prosecutor convinced the

court to exclude it.” Specifically, petitioner refers to the

following portion of the prosecutor's closing argument.

Shoeprint evidence: Ladies and gentlemen of the

jury, this is why you find Roger Wheeler not

guilty, because they found a shoeprint in this

house. Hardwood floors, you got a shoeprint.

But you know what? We need a shoe to

compare it to. We don't have that. If you

remember, he says, “I had gray Nike Airs or

gray Nike tennis shoes, denim pants, and a

black or dark sweatshirt on.” He knows where

his clothes are at. Mr. Cooperative never

brought them in.

68a

Petitioner's counsel objected, arguing that the

prosecutor’s comments shifted the burden to petitioner

to show he was innocent. The trial court ordered the

prosecutor to move on, but explained that “it’s fair for

[the prosecutor] to comment on the fact that [defense

counsel has] focused greatly on the shoeprint” and

noted that petitioner’s counsel had already described

petitioner as cooperative. As noted, petitioner's counse]

did mention shoeprint evidence, thus opening the door

for the prosecution to discuss that topic. Although

petitioner's counsel did not specifically use the word

“cooperative” to describe petitioner, petitioner was

described as such in other terms. Petitioner's trial

counsel, during closing argument, stated: “A guilty

person would not have offered his own biological

samples. [Petitioner] knew that he did not kill those

people. [Petitioner] knew there was evidence of

someone else, because he knew that someone else was

there.” The prosecutor's comments were not improper

because they were made in response to petitioner's

counsel's argument.

Next, petitioner claims that the prosecutor's

argument was constitutionally improper because it

“suggest[ed] the defense was responsible for a crucial

witness], Shannon Calloway,] not testifying, even

though the prosecutor knew that witness had been

killed before trial in an unrelated incident.” During

closing argument, the prosecutor argued:

But then you start hearing about this Shannon

Calloway fellow. Now what about Shannon

Calloway? Let me ask you this, ladies and

69a

gentlemen of the jury. Aside from the interview

that Detective Sherrard, uh, took from Shannon

Calloway the day the bodies were discovered,

when is the next time in this case you hear

Shannon Calloway’s name mentioned by this

Defendant to any Detective in any statement?

You don’t hear about it until February of the

year 2001. And ycu want to know what? It’s kind

of difficult in the middle of trial to stand up and

run out and find people that the Defense wants

us to get up and start pointing fingers at.

The record demonstrates, however, that petitioner's

trial counsel referred to Calloway multiple times before

the prosecutor did. Indeed, petitioner’s trial counsel

suggested that Calloway may have been the real

murderer:

There’s Shannon Calloway there at the house

with these two deceased individuals, and they

{the police] don’t even question or check his

story out to see if he did, in fact, go over there.

You, you heard Tiffany Malone say she’s the one

that called the police. We haven't heard any

evidence that anyone else called the police. I

submit that Shannon Calloway missed

something the night before when he was at the

apartment, and he went back there to finish

what he missed.

Maybe they should have checked Shannon

Calloway’s shoe size. Maybe they should have

compared Shannon Calloway’s shoes to what

70a

they've got here. I just don’t see how, on October

3, that group of individuals that involved

Shannon Calloway and some other people,

how they would have known that Roger Wheeler

had a stab mark on him unless they had done it,

or one of them had done it.

Thus, it is clear from the record that the

prosecutor's comments were made in response to

petitioner's trial counsel’s intimations that Calloway

was the real murderer; accordingly, the prosecutor's

comments were not improper.

Finally petitioner claims that the prosecutor made

constitutionally impermissible statements when

referring to petitioner's evidence of his struggles with

substance abuse as “excuses” and when the prosecutor

allegedly offered his personal opinion about the case.

However, petitioner did not object to either of these

statements at trial, as he was required to do to

preserve the issue for appeal pursuant to Kentucky

Rule of Criminal Procedure 9.22. Accordingly, these

claims are procedurally defaulted, and petitioner does

not allege cause or prejudice to cure the default. See

West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996) (citing

Wainwright v. Sykes, 433 U.S. 72, 87-88, 97 S.Ct. 2497,

53 L.Ed.2d 594 (1977)).

For these reason., petitioner is not entitled to

habeas relief on his claims of prosecutorial misconduct.

XI.

7la

Petitioner also claims that Kentucky's

proportionality review violates the Eighth Amendment

and denied him due process. Specifically, petitioner

argues that Kentucky’s proportionality review is

unconstitutional because it incorporates cases in which

the death sentence was not imposed and thus results in

an arbitrary application of death sentences. I disagree.

As this court previously explained in Bowling:

The Supreme Court has held that the

Constitution does require proportionality review,

but that it only requires proportionality between

the punishment and the crime, not between the

punishment in this case and that exacted in

other cases. See Pulley v. Harris, 465 U.S. 37,

50, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984).

Although “[t]here is no federal constitutional

requirement that a state appellate court conduct

a comparative proportionality review,” McQueen

v. Scroggy, 99 F.3d 1302, 1333-34 (6th

Cir.1996), cert. denied, 521 U.S. 1130, 117 S.Ct.

2536, 138 L.Ed.2d 1035 (1997), Kentucky law

does require the Kentucky Supreme Court to

engage in comparative proportionality review.

See Ky. Rev.Code Ann. § 532.075(3)(c). Although

claimed violations of state law are generally not

cognizable on habeas, the Supreme Court has

left room for the argument that a state-law error

could, potentially, “be sufficiently egregious to

amount to a denial of equal protection or of due

process of law guaranteed by the Fourteenth

Amendment.” Harris, 465 U.S. at 41, 104 S.Ct.

871.

72a

344 F.3d at 521. The Bowling court expressed

skepticism over whether § 532.075(3)(c) created a due

process interest, noting that “the statute only explains

what the Kentucky Supreme Court needs to

consider—similar cases, the crime, and the

defendant—it does not tell that court how to make this

decision. This suggests that no due-process nght

exists” pursuant to § 532.075(3)(c). Jd. at 521-22.

Petitioner attempts to distinguish this case from

Bowling, arguing that it “considered only a due process

argument and merely noted that proportionality review

is not required in light of Harris ~ but did not address

what petitioner calls “threshold” statutes. According to

petitioner, “ Gregg [ v. Georgia, 428 U.S. 153, 96 S.Ct.

2909, 49 L.Ed.2d 859 (1976),] and { Zant v.] Stephens,

[462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983),]

require jurisdictions with ‘threshold’ statutes to

consider in proportionality review cases where the

death penalty was not imposed.” Petitioner defines

“threshold statutes” as akin to “Georgia's and

Kentucky's statutes that permit juries to impose death

as long as an aggravator is found and mitigation

considered.” The Supreme Court in Harris, however,

saw things differently:

While emphasizing the importance of mandatory

appellate review under the Georgia statute, [

Stephens }, 103 S.Ct., at 2742, we did not hold

that without comparative proportionality review

the statute would be unconstitutional. To the

contrary, we relied on the jury's finding of

73a

aggravating circumstances, not the State

Supreme Court's finding of proportionality, as

rationalizing the sentence. Thus, the emphasis

was on the constitutionally necessary narrowing

function of statutory aggravating circumstances.

Proportionality review was considered to be an

additional safeguard against arbitrarily imposed

death sentences, but we certainly did not hold

that comparative review was constitutionally

required.

There is thus no basis in our cases for holding

that comparative proportionality review by an

appellate court is required in every case in

which the death penalty is imposed and the

defendant requests it. Indeed, to so hold would

effectively overrule Jurek / v. Texas, 428 U'S.

262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976),] and

would substantially depart from the sense of

Gregg and Proffitt [ v. Florida, 428 U.S. 242, 96

S.Ct. 2960, 49 L.Ed.2d 913 (1976) ]. We are not

persuaded that the Eighth Amendment requires

us to take that course.

465 U.S. at 50-51, 104 S.Ct. 871. Because petitioner

offers no Supreme Court precedent supporting his

notion that the Kentucky Supreme Court should have

compared his case to cases in which the death penalty

was not imposed, I conclude he is not entitled to relief

on this claim.

XII.

74a

Next, petitioner argues that his tria] counsel was

constitutionally ineffective for failing to explain the

presence of petitioner's blood on Warfield’s thigh and

for failing to investigate the police’s collection of this

blood evidence. I disagree.

As an initial matter, petitioner cites neither any

authority nor any portion of the record in support of his

arguments regarding this claim. And, his argument is

perfunctory in any event. Accordingly, petitioner has

abandoned this claim on appeal. See United States v.

Villareal, 491 F.3d 605, 611 (6th Cir.2007) (citing

United States v. Johnson, 430 F.3d 383, 397 (6th

Cir.2005)); Gen. Star Nat Ins. Co., 289 F.3d at 441.

Moreover, even assuming that petitioner had not

abandoned this claim, it is meritless. Again, in order to

establish constitutionally ineffective assistance of

counsel, a petitioner must demonstrate: (1) deficient

performance by counsel—that is, that counsel's

performance was objectively unreasonable under

prevailing professional norms; and (2) prejudice to the

defense as a result of that deficient performance. See

Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052.

Professional norms, for purposes of the Strickland ‘s

deficiency prong, are “judged by reference to the time

of representation, and cannot be based on hindsight, ’

and “[t]he burden lies with the petitioner to ‘identify

the acts or omissions of counsel that are alleged not to

have been the result of reasonable professional

judgment.“ Storey v. Vasbinder, 657 F.3d 372, 388 (6th

Cir.2011) (quoting Strickland, 466 U.S. at 689, 690,

104 S.Ct. 2052). As for the prejudice requirement, a

75a

petitioner can “show prejudice by establishing that

‘there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is

a probability sufficient to undermine confidence in the

outcome. “ Davis v. Lafler, 658 F.3d 525, 536 (6th

Cir.2011) (quoting Strickland, 466 U.S. at 694, 104

S.Ct. 2052). Along these lines, this court has previously

noted that “[w]hen analyzing a Strickland claim under

§ 2254(d), our review is doubly deferential. The key

question is whether there is any reasonable argument

that counsel satisfied Strickland’s deferential

standard.” Campbell, 674 F.3d at 587 (internal

citations and quotation marks omitted).

Petitioner suggests that “the drop of blood on

Warfield’s thigh is consistent with [petitioner’s] blood

having ‘dropped’ from the killer's knife—the same one

used to stab Malone and [petitioner]—onto Warfield’s

thigh.” Asin the state courts, however, petitioner offers

no support for this argument. This argument is

entirely speculative. Petitioner points to no facts at

trial that would support his theory that his blood was

transferred by the real killer's knife and dropped on

Warfield’s thigh. And, even if that lack of evidence was

the result of petitioner's trial counsel’s failure to

investigate, in light of the other overwhelming evidence

of petitioner's guilt, I would still conclude that there

was some “reasonable argument” that petitioner's trial

counsel's strategy satisfied Strickland. Accordingly,

even if he had not abandoned this claim, petitioner

would not be entitled to habeas relief.

76a

XIII.

Finally, petitioner argues that the trial court's

failure to instruct the jury on voluntary intoxication

and extreme emotional disturbance denied him a

fundamentally fair trial and thus was contrary to, or

an unreasonable application of, the Supreme Court's

holding in Beck v. Alabama, 447 U.S. 625, 100 S.Ct.

2382, 65 L.Ed.2d 392 (1980). I disagree.

“In capital cases, Beck v. Alabama requires that

the jury be instructed on a noncapital lesser-included

offense if, and only if, ‘the evidence would permit a jury

rationally to find {the defendant] guilty of the lesser

offense and acquit him of the greater.’ “ Smith v.

Bradshaw, 591 F.3d 517, 523 (6th Cir.2010) (quoting

Beck, 447 U.S. at 635, 100 S.Ct. 2382). In Hopper v.

Evans, 456 U.S. 605, 611, 102 S.Ct. 2049, 72 L.Ed.2d

367 (1982), the Court explained that “due process

requires that a lesser included offense instruction be

given only when the evidence warrants such an

instruction.” Here, the evidence does not warrant such

an instruction. In support of this claim, petitioner

offers only that “evidence throughout trial

demonstrates [petitioner's] entitlement to an

instruction on voluntary intoxication and extreme

emotional disturbance (his actual drug abuse on the

day of the offense, the nature of the crime, and his

disheveled appearance following the crime).” However,

“Kentucky law requires a ‘triggering event, that is

responsible for causing the emotional disturbance.”

Baze v. Parker, 371 F.3d 310, 325 (6th Cuir.2004)

(quoting Stanford v. Commonwealth, 793 S.W.2d 112,

77a

115 (Ky.1990)). “A triggering event is dramatic,

creating a temporary emotional disturbance that

overwhelms the defendant's judgment.” Jd. (citing

Spears v. Commonwealth, 30 S.W.3d 152, 153, 155

(Ky.2000)). Petitioner has made no showing of a

triggering event justifying an emotional disturbance

instruction. The same is true concerning the voluntary

intoxication instruction. “[A}]n accused is entitled to

have the defense of intoxication submitted in

instructions to the jury if the evidence is sufficient to

indicate that the degree of intoxication was at a level

which prevented the forming of the intent necessary

under the statute.” Foster v. Commonwealth, 827

S.W.2d 670, 677 (Ky.1991) (citing Parido ov.

Commonwealth, 547 S.W.2d 125 (Ky.1977)). No such

evidence was presented here. Presumably referring to

the use of crack cocaine, petitioner only testified that,

before the crime, he “was over to Donnie’s, we, uh, we

was using some then, and that’s when we decided to

get some—you know, try to obtain some more.” This,

without more, is insufficient to warrant relief.

XIV.

For these reasons, I conclude that petitioner is not

entitled to relief on any of his claims and would affirm

the district court in all respects. Accordingly, I

respectfully dissent.

78a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

CIVIL ACTION NUMBER: 3:09CV-336-M

ROGER L. WHEELER PETITIONER

V.

THOMAS L. SIMPSON, WARDEN RESPONDENT

ORDER

The above matter having been referred to the

United Magistrate Judge, who has filed his Findings of

Fact and Conclusions of Law, objections having been

filed, and the Court having considered the same and

being sufficiently advised;

IT IS HEREBY ORDERED that the Petitioner's

objections are overruled and the Court adopts the

Findings of Fact and Conclusions of Law as set forth in

the report submitted by the United States Magistrate

Judge.

IT IS FURTHER ORDERED that the

Respondent's motion for summary judgment is

granted and Wheeler's petition for a writ of habeas

corpus under 28 U.S.C. § 2254 is dismissed with

prejudice.

79a

A Certificate of Appealability is granted as to

grounds 1, 3, 5, 6, 7, 8, 10, 11, 14 and 15.

A Certificate of Appealability is denied as to

grounds 2, 4, 9, 12, 13 and 16.

Joseph H. McKinley, Jr. Judge

United States District Court

March 2, 2011

Copies to: Counsel of Record

80a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

CIVIL ACTION NUMBER: 3:09CV-336-M

ROGER L. WHEELER PETITIONER

V.

THOMAS L. SIMPSON, WARDEN RESPONDENT

FINDINGS OF FACT, CONCLUSIONS OF LAW

AND RECOMMENDATION.

(Relevant excerpt beginning on page 44 of the

Findings of Fact, Conclusions of Law and

Recommendation)

1. We begin out discussion with ground of Wheeler's

habeas petition (DN 8 pp. 33-38). Wheeler maintains

that four members of the jury pool were improperly

excluded for cause contrary to Witherspoon v. Illinois,

391 U.S. 510 (1968) and Wainwright v. Witt, 469 U.S.

412, 424 (1985) when the trial court struck them based

on its belief that each of the four expressed views that

would “prevent or substantially impair” them in the

performance of their duties as jurors. The specific

individuals, identified by number, include juror 638,

juror 551, juror 625 and juror 602.

Juror 638 stated that he did not know if the state

should have the authority to impose the death penalty

8la

and was equivocal when asked whether he could

consider the full range of penalties including the death

penalty. (Citation to the record omitted.) Juror 638

agreed that he was not absolutely certain if he could

realistically consider imposing the death penalty.

(Citation to the record omitted.) He explained that

with age he had become more contemplative on the

issue of whether or not we have the right to take

life.(Citation to the record omitted.) Initially, the trial

court found that the juror remained capable of

considering the entire penalty range, but reserved

ruling on whether to strike the juror for cause.

(Citation to the record omitted.) The following day,

over the objection of the defense, the court struck juror

638 due to the court’s view that the jury could not

consider the entire range of penalties. (Citation to the

record omitted.)

(Discussion of the three other jurors. Skipping to page

46 of the Findings of Fact.)

Wheeler insists that the actions of the trial court

and the affirmation of such actions by the Kentucky

Supreme Court are the result of an unreasonable

application of Wainwright v. Witt, 469 U.S. 412, 424

(1985) and Witherspoon v. Illinois, 391 U.S. 510 (1968).

On direct appeal, the Supreme Court of Kentucky held

the following as concerns Wheeler's jury qualification

arguments:

In this case, the trial judge allowed counsel for

both parties great latitude in questioning the

persons summoned for jury duty. The question

82a

of whether the potential jurors had any

preconceived opinions that would interfere with

their impartiality was carefully explored. The

trial judge properly refused to strike for cause

jurors who could consider the minimum penalty

of twenty years. She appropriately struck for

cause those jurors that could not impose the

death penalty. She also correctly excused one

juror who demonstrated a financial hardship.

The voir dire process was entirely proper and

thoroughly examined the question of whether

any prospective jurors were predisposed. There

was no error and the rights of the defendant to

a fair trial by a fair and impartial jury, due

process and freedom from cruel and unusual

punishment under both the federal and state

constitutions were not violated.

Wheeler IJ, 121 S.W.3d at 179.

The question this Court must now answer is

whether the above legal reasoning is either contrary to,

or an unreasonable application of, the clearly

established precedent of the U.S. Supreme Court.

Wheeler, as noted, insists that it is just that—an

unreasonable application of Witherspoon and Witt

because the equivocal responses of the four jurors did

not establish that their individual views would prevent

or substantially impair any of them in the performance

of their respective duties as jurors based on the

instructions and their individual oath. Witt, 469 U.S.

at 424. Further, Wheeler insists that as to jurors 551

and 602 the refusal of the trial court to permit defense

83a

counsel to further examine each juror unfairly

precluded the defense from establishing their lack of

bias against the death penalty.

These constitutional arguments must be examined

in light of the then existing U.S. Supreme Court case

law to evaluate the objective reasonableness of the

Kentucky Supreme Court's decision. Prior to 1968,

state law governed the question of whether potential

jurors who expressed possible scruples against the

death penalty should be excluded. Williams v. Bagley,

380 F.3d 923, 978, n. 1 (6 Cir. 2004), cert. denied, 544

U.S. 1003 (2005). In 1968, in Witherspoon v. Illinois,

391 U.S. 510, 522 (1968), the Supreme Court

established that those jurors who make it

unmistakably clear that they would automatically vote

against the imposition of capital punishment without

regard to the evidence, or that their attitude toward

the death penalty would prevent them from making an

impartial decision as to the defendant’s guilt, were

subject to exclusion from the jury for cause.

Witherspoon, 391 U.S. at 522, n. 21.

This rule established by Witherspoon subsequently

was clarified by the U.S. Supreme Court in Wainwright

vu. Witt, 469 U.S. 412, 421 (1985). In Witt, the court

held that

the proper standard for determining when a

prospective juror may be excluded for cause

because of his or (sic) views on capital

punishment...is whether the jurors views

would prevent or substantially impair the

84a

performance of his duties as a juror in

accordance with his instructions and his oath.

Witt, 469 U.S. at 424. The Supreme ourt (sic)

continued to add that “this standard...does not require

that ajuror’s bias be proved with unmistakable clarity

as such an exacting standard does not fit the realities

of voir dire questioning.” Id. at 424-25; Beuke v. Houk,

537 F.3d 618, 638 (6° Cir. 2008), cert. denied, 129 S.Ct.

2792 (2009) (discussing Witt).

Further, the conclusion of a state court judge that

a prospective capital sentencing juror should be

excluded for cause due to his or her views on the death

penalty is a finding of fact that is entitled to a

presumption of correctness by the federal courts on

habeas corpus review. Witt, 469 U.S. at 428-29. See,

Uttecht v. Brown, 551 U.S. 1, 9, 17 (2007) (“Deference

to the trial court is appropriate because it is in a

position to access the demeanor of the venire, and of

the individuals who compose it, a factor of critical

importance in assessing the attitude and qualification

of potential jurors.”) Indeed, the rebuttable

presumption of correctness concerning the finding of a

trial court that a juror was impartial was entitled toa

presumption of correctness even before the passage of

the AEDPA. Bowling v. Parker, 344 F.3d 487, 519 (6"

Cir. 2003), cert. denied, 543 U.S. 842 (2004) (citing

Patton v. Yount, 467 U.S. 1025, 1036 (1984) (Juror

partiality is a question of historic fact)).

Finally, the focus of a reviewing court when

examining the determination of the trial court in this

regard is not “whether the trial judge was wrong or

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right in his determination of impartiality, but merely

whether his decision was fairly supported by the

record.” Bowling, 344 F.3d at 519 (citing Witt, 469 U.S.

at 433). The Uttecht opinion holds in this regard that

mere isolated statements of a potential juror that

indicate an ability to impose the death penalty will not

by themselves be sufficient to preclude the prosecution

from striking such juror for cause when the responses

of the juror, taken as a whole, indicate a lack of such

an ability or the failure to comprehend the

responsibilities of a juror. Morales v. Mitchell, 507

F.3d 916, 941-42 (6" Cir. 2007) (discussing Uttecht).

Here, an examination of the statements of the

individual jurors now under review reveals that the

decision of the Supreme Court of Kentucky reasonably

applied these clearly established principles of

Witherspoon and Witt to uphold the decision of the trial

court to strike from the veniremen jurors 638, 551, 625

and 602 for cause. For example, juror 638 expressed

uncertainty whether the state should even have the

authority to impose a death penalty at ell. Further,

when directly asked by the prosecution whether he was

not absolutely certain if he could realistically consider

the death penalty or not, juror 638 replied, “I think

that would be the most accurate way I could answer

your question, sir.” (Citation to the record omitted.)

Juror 638 added during questioning by defense counsel

that as he got older he had become more contemplative

on the issue of “whether or not we have the right to

take that life.” (Citation to the record omitted.) Such

comments reveal juror 638 to be substantially impaired

based on his views on capital punishment in the

86a

further performance of his duties as a juror contrary to

the Witt standard. Accordingly, the trial court

correctly found the juror to be biased.

(Discussion of the three other jurors. Skipping to page

50 of the Findings of Fact.)

Wheeler is correct that each of the four jurors

made certain comments that taken in isolation suggest

the abstract possibility that the specific juror involved

might be able to consider the entire range of penalties.

For example, juror 638, who questioned whether people

have the right to take a life, did indicate that he could

consider the entire range of penalties although he was

not absolutely certain that he could realistically

consider them. (Citation to the record omitted.) Also,

the trial court did initially find that juror 638 could

consider the entire penalty range, but reserved its

ruling and the following day granted the motion to

strike the juror for cause. (Citation to the record

omitted.)

(Discussion of the three other jurors. Skipping to page

51 of the Findings of Fact.)

Wheeler insists that the above examples

repeatedly show that the juror involved was not

unequivocal in his or her opposition to the death

penalty. That may well be so, but that is not the Witt

standard, which looks to the entirety of the juror’s

responses to determine whether each juror could be

substantially impaired in the performance of his or her

duties as a result of that juror’s views. The trial court,

R7a

with full knowledge of the demeanor and deportment

of the jurors, determined that each one was sufficiently

biased so as to be subject to disqualification from

service for cause. The deference that determination,

and the absence of any clear and convincing evidence

by Wheeler that would compel this Court to set aside

the findings of fact of the trial court, requires that the

Court conclude that the decision of the Kentucky

Supreme Court in this respect reasonably applied the

clearly established precedent of Witherspoon and Witt.

re*eee

January 12, 2011

DAVE WHALIN, MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT

88a

RENDERED: AUGUST 21, 2003

MODIFIED: DECEMBER 18, 2003

TO BE PUBLISHED

Supreme Court of Kentucky

No. 2001-SC-0444-MR

ROGER LAMONT WHEELER APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT

V. HONORABLE ELIZABETH ABRAMSON

NO. 97-CR-2621 AND 97-CR-2768

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE

WINTERSHEIMER

AFFIRMING

Roger Lamont Wheeler was convicted by a jury of

the intentional murders of Nigel Malone and Nairobi

Warfield. The aggravating circumstance is that

Wheeler's acts of killing were intentional and resulted

in multiple deaths as described by KRS

532.025(2)(a)(6). Wheeler was sentenced to death on

each conviction.

Wheeler raises 28 issues which we will discuss in

the order in which they were presented in his original

brief.

89a

On October 2, 1997, Louisville police discovered

the bodies of the victims in the apartment the victims

shared. The male victim was found in a hallway near

the bathroom. He had suffered nine stab wounds. Two

stab wounds to the chest were considered the fatal

wounds by the medical examiner. She described the

crime scene as having blood spatters on the floor, walls,

furniture and appliances. The medical examiner

believed that the main struggle occurred in the kitchen

and progressed to the hallway where the body of the

male victim was found.

The female victim died as a result of manual

strangulation. The medical examiner testified that she

believed the struggle between the female and her

assailant occurred in the bedroom where she was

found. The female victim had multiple abrasions on the

left side of her neck and lacerations with a bruise on

her mouth and several bruises on her lips. Her body

was found in a seated position, leaning against a

bedroom wall. She was covered with a blanket or quilt

and a scissors was protruding from her neck. The

medical testimony determined that she had been

stabbed with the scissors after she was already dead.

During the autopsy, the medical examiner discovered

that the female victim was pregnant.

There was blood on the floors and walls in nearly

every room in the apartment. Numerous blood samples

were also collected at the scene and were subject to

laboratory testing. No fingerprints were found on the

Scissors.

90a

Wheeler denied killing the two victims but he

changed his story on several occasions. Originally, he

denied ever being inside of the apartment on the night

the murders occurred but then later admitted being in

the apartment on that night. He claimed that Nigel

Malone was already stabbed, but that he did not see

Nairobi Warfield. He also asserts that the assailant

was already inside the apartment and he and that

person fought which was why he was wounded.

During the trial that began in February 2001, the

trial judge instructed on one aggravating circumstance,

intentional killings that resulted in multiple deaths.

The trial judge also instructed on mitigating

circumstances that Wheeler was under the influence of

extreme emotional disturbance; that his capacity to

appreciate the criminality of his actions or to conform

his conduct to the requirements of the law was

impaired as a result of intoxication and any other

circumstances that the jury could consider as

mitigating. We will now begin to consider the various

arguments presented in the sequence provided by the

brief of Wheeler.

I. Jury Challenges

Wheeler first argues that erroneous rulings on

challenges for cause denied him the full use of his

peremptory challenges. He exercised all nine of the

allotted peremptory strikes.

The question of whether a juror should be excused

for cause is a matter within the sound discretion of the

9la

trial judge. Thompson v. Commonwealth, Ky., 862

S.W.2d 871 (1993); Alexander v. Commonwealth, Ky.,

862 S.W.2d 856 (1993), overruled on other grounds,

Stringer v. Commonwealth, Ky., 956 S.W.2d 883 (1997).

Kentucky law requires that a jury must be fair and

impartial and that the probability of bias or prejudice

is a determinative factor in ruling on a challenge for

cause. Thompson, supra; Pennington 0.

Commonwealth, Ky., 316 S.W.2d 221 (1958).

Mabe v. Commonwealth, Ky., 884 S.W.2d 668

(1994), determined that a “per se disqualification” is

not required simply because a juror does not

immediately understand and embrace every legal

concept presented during the general voir dire

examination. The true test is whether, “after having

heard all of the evidence, the prospective juror can

conform his views to the requirements of the law and

render a fair and impartial verdict.” Mabe, supra.

In this case, the trial judge allowed counsel for

both parties great latitude in questioning the persons

summoned for jury duty. The question of whether the

potential jurors had any preconceived opinions that

would interfere with their impartiality was carefully

explored. The trial judge properly refused to strike for

cause jurors who could consider the minimum penalty

of twenty years. She appropriately struck for cause

those jurors that could not impose the death penalty.

She also correctly excused one juror who demonstrated

a financial hardship. The voir dire process was entirely

proper and thoroughly examined the question of

whether any prospective jurors were predisposed.

92a

There was no error and the rights of the defendant to

a fair trial by a fair and impartial jury, due process and

freedom from cruel and unusual punishment under

both the federal and state constitutions were not

violated.

II. Religious Beliefs of Prospective Jurors

Wheeler argues that it was prejudicial error to

inguire into the religious beliefs of prospective jurors

during individual voir dire and to excuse them from

service or allow peremptory challenges to be used

against them because of their religious beliefs. This

issue is not properly preserved for appellate review and

is raised as plain error as provided by RCr 10.26 and

KRS 532.075(2). During the individual voir dire, the

trial judge asked each juror several questions related

to his or her religious beliefs. Not only did counsel for

Wheeler not object to the line of questioning used by

the trial judge of prospective jurors, but defense

counsel participated in the development of the

questions themselves. Decisions made during voir dire

are generally regarded as trial strategy. Hodge v.

Commonwealth, Ky., 17 S.W.3d 824, 837 (2000).

Pursuant to RCr 9.36(1), a prospective juror shall

be excused as not qualified if there is reasonable

ground to believe that the juror cannot render a fair

and impartial verdict on the evidence. There was no

error in the inquiry of the trial judge of prospective

jurors if they held any moral, religious or spiritual

beliefs that would interfere with their service on the

93a

jury. There is no violation of any provision of either the

federal or state constitutions.

II]. Juror Excused During Trial

At the beginning of the third day of trial, Juror 537

informed the trial judge that her husband was

approached that morning by a coworker, the

defendant's wife, who engaged him in a conversation

about the trial. The husband of the juror told her that

he remembered Wheeler very well and that Wheeler

had to be fired because he “stayed high on the job all

the time.” The juror also told the trial judge that family

members of the victim kept staring at her when she

would leave the courtroom. The trial judge struck the

juror for cause because she had extrajudicial

knowledge that the defendant was fired because he

stayed high all the time. The question of whether a

juror should be excused for cause is a matter within the

sound discretion of the trial judge. Thompson;

Alexander, supra. The right to an unbiased decision by

an impartial jury in a criminal trial is a basic principle

of due process. Hodge v. Commonwealth, Ky., 68

S.W.3d 338 (2001). There was no abuse of discretion.

IV Batson Question

Wheeler contends that the exercise of peremptory

challenges against African—American jurors violated

the standards provided in Batson v. Kentucky, 476 U.S.

79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Wheeler

asserts that the reasons offered by the prosecution for

exercising a peremptory strike against Juror 536 does

94a

not withstand the close scrutiny of the Batson test. We

disagree.

In exercising a peremptory challenge on Juror 536,

the Commonwealth noted that she refused to state her

opinion as to the death penalty, stating that she felt

that her opinion was irrelevant. The Commonwealth

further noted that the juror stated that she believed in

redemption and salvation as opposed to fixing a

punishment. A careful examination of the record

indicates that the Commonwealth gave sufficient

race-neutral explanations for the exercise of a

peremptory challenge against African—American Juror

536. See Woodall v. Commonwealth, Ky.,63S.W.3d 104

(2001). We find no error.

V. Death Penalty Qualification

At trial, defense counsel filed a motion to preclude

the removal of jurors who were not death qualified, or

in the alternative, the defense requested that separate

juries be selected for the guilt and penalty phases of

the trial and that only the sentencing jury be death

qualified. The trial judge overruled the motion after a

hearing. This Court and the United States Supreme

Court have repeatedly rejected the argument that

death qualification of a jury violates the constitutional

rights of the defendant. See Lockhart v. McCree, 476

U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); Frown

v. Commonwealth, Ky., 890 S.W.2d 286 (1994). there

was no error.

9Sa

VI. Commonwealth Opening Statement

Wheeler claims that the use of the words

“slaughterhouse” and “gutted like a pig” by the

prosecutor in the opening statement warranted a

mistrial because they were inflammatory and

calculated to unduly prejudice the jury. We disagree.

The trial judge properly overruled the motion for a

mistrial. We have held previously that a trial judge is

in the best position to evaluate the existence of undue

prejudice and in this case, she determined there was no

undue prejudice. Cf. Wilson v. Commonwealth, Ky., 836

S.W.2d 872 (1992), cert. denied, 507 U.S. 1034, 113

S.Ct. 1857, 123 L.Ed.2d 479 (1993), overruled on other

grounds, St. Clair v. Roark, Ky., 10S.W.3d 482 (1999).

Here, the comments of the prosecutor reflecting his

opinion based on his view of the evidence were

certainly colorful, but not improper. Cf. Derossett v.

Commonwealth, Ky., 867 S.W.2d 195 (1993).

Considering the general circumstances of this bloody

crime, the words used by the prosecutor did not render

the trial fundamentally unfair. See Partin v.

Commonwealth, Ky., 918 S.W.2d 219 (1996).

Opening and closing statements are not evidence

and wide latitude is allowed in both. Slaughter v.

Commonwealth, Ky., 744 S.W.2d 407 (1987). Counsel

may draw reasonable inferences from the evidence and

propound their explanations of the evidence and why

the evidence supports their particular theory of the

case. Tamme v. Commonwealth, Ky., 973 S.W.2d 13

96a

(1998), cert. dented, 525 U.S. 1153, 119 S.Ct. 1056, 143

L.Ed.2d 61 (1999).

VII. Pregnancy of the Female Victim

It was not prejudicial error to admit evidence that

the female victim was pregnant at the time of her

murder. The fact that the female victim was pregnant

was only minimally presented during trial. It related to

her physical condition and the jury was entitled to hear

such evidence. This Court has previously stated that

evidence about whom and what the victim was prior to

death was properly admitted. See Templeman v.

Commonwealth, Ky., 785 S.W.2d 259 (1990); Campbell

v. Commonwealth, Ky., 788 S.W.2d 260 (1990):

McQueen v. Commonwealth, Ky., 669 S.W.2d 519

(1984). The pregnancy of the female victim was not

sensational or shocking or prejudicial or likely to

induce any undue sympathy. The brief reference to her

pregnancy was fair comment to explain her identity. It

did not deprive Wheeler of a fair trial. Cf. Bowling v.

Commonwealth, Ky., 942 S.W.2d 293 (1997).

Wheeler also argues that KRS 532.025 is

unconstitutional as applied to him because the jury

could have considered three deaths by including the

unborn child in finding the aggravating circumstances

supporting the death penalty. The indictment does not

mention the death of an unborn child. The jury

instructions directed the consideration of two deaths,

that of the male and female victims. Wheeler was not

denied a fair trial or due process of law under either

the federal or state constitutions. The admission of

97a

evidence relating to pregnancy was not fundamentally

unfair. The probative value of the evidence was not

substantially outweighed by the danger of undue

prejudice. See KRE 403. The reference to pregnancy

was not error. The statute is not unconstitutional.

VIII. Tennis Shoes

It was not error for the trial judge to exclude the

introduction of Wheeler's tennis shoes as evidence.

During trial, the defense filed a supplemental

reciprocal discovery response and gave notice that it

was in possession of a pair of gray Nike tennis shoes

that may be introduced into evidence. The prosecution

objected on grounds of inadequate notice and a lack of

chain of custody which would indicate that the

proffered shoes were in fact the same shoes that

Wheeler was wearing three and a half years earlier.

The trial judge sustained the objection.

On avowal, Wheeler testified that on the day of his

arrest he was wearing flip-flops when the police

entered his mother’s home. The police officer told him

to put on different shoes and he put on tennis shoes.

He stated that those were the shoes he was wearing at

the time of the arrest and they had been his personal

property for three and a half years. The tennis shoes

were also admitted pursuant to avowal. Wheeler

contends that his rights were violated because the

tennis shoes were crucial to the defense theory that

someone else was in the house the night the two

victims were slain.

98a

The evidence was not relevant. According to

Wheeler on appeal, the shoes would have supported his

theory of the case if the prints from the excluded shoes

did not match the numerous bloody shoe prints found

at the crime scene. But this would be true if there was

evidence to show that Wheeler was wearing the

excluded shoes while he was in the apartment when

the murders were committed. This he failed to do.

Wheeler admitted to being in the apartment on the

night that the murders were committed. Thus, if he

could show that the shoes he was wearing while he was

in the apartment at the crucial time did not match the

shoe prints found at the crime scene, the shoes would

have tended to support his theory of the case. But

Wheeler did not testify that he was wearing the shoes

while he was in the apartment the night the victims

were slain. Nor did the defense offer any other evidence

to link the shoes to the crime scene. Rather, Wheeler

testified on avowal that he was wearing the shoes

when he was arrested the next day. The mere fact that

Wheeler owned a pair of shoes that may or may not

have matched the shoe prints found at the crime scene

did not tend to make the defense theory more probable.

They were not relevant. KRE 401. The trial judge made

the right ruling for the wrong reason. See Noel v.

Commonwealth, Ky., 76 S.W.3d 923, 929 (2002);

Tamme, 973 S.W.2d at 31.

1X. Witness Credibility

The trial judge correctly denied the defense counsel

the right to impeach a witness about her delay in

99a

reporting knowledge about the crime. The witness was

working as a clerk at B~Line Food Mart on the night of

the crime when Wheeler entered the store covered with

blood. The witness testified that she recognized him

from the neighborhood and from his prior visits to the

store. Wheeler himself when testifying at trial

admitted that he went into the store after leaving the

home of the murder victims. On cross-examination,

defense counsel wanted to question the witness

regarding why she did not report to the police

Wheeler’s appearance on the night of the murders. The

defense sought to impeach the witness by revealing to

the jury that she had a son who had been a victim in a

later unrelated crime and that she was in court with

her son on October 9, 1997, but she failed to mention

Wheeler’s appearance on the night of the murders.

The trial judge correctly sustained the

prosecution’s objection, stating that the line of

questioning would be irrelevant, speculative and

collateral and further that such questioning would

create the impression that the witness was somehow

involved with the murders or in trouble regarding a

separate criminal matter. The trial judge did allow the

defense to question the witness as to when she

reported the incident to the police and what reason she

had, if any, for the delay.

On avowal, the defense did question the witness

about her involvement in the case in which her son was

a victim. She also stated that in the present case she

did not contact the police but that they contacted her

and that she did not wish to testify for the

100a

Commonwealth and was extremely reluctant to testify

for either party. The evidence offered by the defense

was not within the purview of KRE 608 as a proper

attack on the credibility of a witness. The defense had

full knowledge of her testimony in her son’s case and

the fact that her son was a victim of a crime was totally

irrelevant. Cf. Bowling, supra.

X. No Improper Bolstering of Testimony

It was not error for the trial judge to allow the

detective to explain his comments regarding the photo

pack questioning by the defense. A police detective

testified that the store clerk had identified Wheeler

from a photo pack. When the prosecutor asked the

detective if she had hesitated when she identified the

photo, the defense objected on the grounds that such

testimony was improper bolstering because the defense

had not challenged the testimony about identifying the

photo. Wheeler argues that any reference to the photo

pack identification by the witness should have been

excluded. We disagree.

The trial judge determined that the defense had

opened the door to the issue of the presentation of the

photo pack on cross-examination and that the

prosecution was entitled to clarify the answers of the

police detective on re-direct. Non-verbal conduct can be

hearsay under the “implied assertion” rule. See Robert

G. Lawson, The Kentucky Evidence Law Handbook §

8.05 III(1), at 369 (3d ed. Michie 1993). The detective

testified that the store clerk did not hesitate in her

identification of Wheeler. This evidence of lack of

10la

hesitation was offered as an implied insertion by the

store clerk that she was positive of her identification.

Thus, it was hearsay. However, it falls within the

hearsay exception at KRE 801A(a)(3). Owens v.

Commonwealth, Ky., 950 S.W.2d 837 (1997).

XI. Blood Spatter/Bite-mark Evidence

The trial judge properly determined that Dr. Amy

Burrows qualified as an expert witness so as to permit

her to testify about both blood spatter and bite-mark

evidence. She testified that the injury to Wheeler's arm

was not a bite mark. KRE 702 allows such evidence if

it will assist the trier of fact in understanding the

evidence and determining factual issues. The

pathologist was properly qualified and an adequate

foundation was presented to establish her expertise.

The admission by Wheeler that he was not bitten, but

was instead stabbed in the arm by the “unknown

murderer,” negates his argument as to the bite-mark

evidence. The training of the pathologist and her

on-the-scene observations clearly qualified her to

testify about the evidence at the crime scene. The

decision as to the qualifications of an expert is within

the sound discretion of the trial judge and should not

be disturbed in the absence of some abuse of discretion.

See Fugate v. Commonwealth, Ky., 993 S.W.2d 931

(1999). Cf. Mills v. Commonwealth, Ky., 996 S.W.2d

473 (1999). There was no abuse of discretion.

102a

XII. Crime Scere Video

There was no abuse of discretion by the trial judge

in admitting the crime scene video into evidence. It was

not cumulative. The trial judge did consider the

objection by the defense but concluded that the

11-minute video was a more accurate depiction of the

crime scene, showing the location and relationship of

other evidence. In response to a motion by Wheeler for

a new trial or judgment notwithstanding the verdict,

the trial judge observed that she had exercised her

discretion. Further, considering the size of the crime

scene and the fact that there was blood everywhere, it

was necessary to allow the use of the videotape to show

the extent of the blood spattering and condition and

placement of the victims. Cf. McKinney ov.

Commonwealth, Ky., 60 S.W.3d 499 (2001); Cf. Hodge

v. Commonwealth, Ky., 17 S.W.3d 824 (2000). A careful

examination of the record clearly shows that the

photographs and the video were relevant for differing

purposes and were not cumulative. There was no abuse

of discretion.

XIII. Instructions

The instructions issued by the trial judge during

the guilt phase were appropriate to advise the jury

regarding the law to be applied in this case, and they

comply with all federal constitutional standards.

The instructions tendered by Wheeler were

properly refused. In Grimes v. McAnulty, Ky., 957

S.W.2d 223 (1997), we held:

103a

A defendant is entitled to have the jury

instructed on the merits of any lawful defense

which he or she has. However, the entitlement

to an affirmative instruction is dependent upon

the introduction of some evidence justifying a

reasonable inference of the existence of a

defense. (Internal citations omitted.)

The trial judge correctly found that no evidence

had been introduced that the victims were the

aggressors in the confrontation that led to their deaths.

Wheeler had denied having anything to do with the

murders. There was no evidence to support a

self-protection instruction for the defendant. The trial

judge properly found that the argument by the defense

that two small cuts on Wheeler’s right-hand knuckle

were “defensive” wounds was not supported by the

evidence. Even a preposterous defense must have some

support in the evidence before it may be submitted to

the jury. Cf. Taylor v. Commonwealth, Ky., 995 S.W.2d

355 (1999).

The trial judge properly overruled a request for an

intoxication instruction because there was insufficient

evidence to allow such an instruction. There was no

testimony, even from Wheeler himself, that he was

intoxicated at the time of the murders. There was no

evidence or even an inference that Wheeler was so

intoxicated that he could not conform his conduct to the

law at the time of the murders. Tamme; Cf. 1 Cooper,

Kentucky Instructions to Juries (Criminal) § 11.30 (4th

ed. 1993).

104a

The trial judge was correct in denying the request

by the defense for an instruction regarding extreme

emotional disturbance. The trial judge correctly ruled

that the defense theory was speculative because there

was no evidence at trial that the male victim had

refused to give Wheeler any drugs. It was Wheeler's

testimony at trial that the drugs had been voluntarily

given.

In order to use the EED instruction, there must be

some definitive and nonspeculative evidence that the

onset of the extreme emotional disturbance was caused

by a triggering event. Morgan v. Commonwealth, Ky.,

878 S.W.2d 18 (1994). Evidence of mere anger or hurt

is not sufficient. Talbott v. Commonwealth, Ky., 968

S.W.2d 76 (1998). The refusal by the trial judge to give

the instructions requested by Wheeler did not violate

his right to a fair trial, due process and the right to

present a defense under either the federal or state

constitutions.

XIV. Defense Psychiatrist (EED)

The trial judge did not improperly limit the penalty

phase testimony of a defense psychiatrist regarding

extr :me emotional! distress at the time of the murders.

On avowal, Dr. Meyers expressed the opinion that the

offenses were committed while Wheeler was under

EED at the height of his substance dependence on

cocaine.

The trial judge properly limited the testimony of

the defense psychiatrist as to the effects of substance

10Sa

abuse. Further, she did not err in prohibiting

testimony that there was EED in October 1997, or on

the weighing of the mitigating and aggravating factors.

Citing Sanborn v. Commonwealth, Ky., 892 S.W.2d 542

(1995), the trial judge correctly determined there was

no evidence of a triggering event of any kind.

Thereafter, the psychiatrist was permitted to testify.

Among other things, he stated that chemical abuse was

not an excuse and that he had only one contact with

Wheeler. Following his testimony, the psychiatrist

testified by avowal, stating that the mitigation

outweighed the aggravating factors and that although

not an excuse for the offenses, the crimes were

committed while Wheeler was under EED caused by

the dependency craving.

Evidence only of drug dependency is not sufficient

to justify an instruction for EED. Stopher v.

Commonwealth, Ky., 57 S.W.3d 787, 803 (2001);

Stanford v. Commonwealth, Ky., 793 S.W.2d 112, 115

(1990). The limitation on the testimony of the defense

psychiatrist did not violate Wheeler's right to present

a defense, a fair trial, due process or to be free from

cruel and unusual punishment under either the state

or federal constitutions.

XV Preparation of Videotape Transcript.

Wheeler contends that the trial judge had

authority to order preparation of transcript of evidence

for appeal. He frames the issue as whether the trial

judge has statutory authority to order the preparation

of a transcript for use in a capital appeal. He asserts

106a

that the trial judge could exercise her discretion to

order the preparation of a transcript to be used for the

preparation and presentation of the case on appeal.

We find this argument to be without merit.

Although the trial judge would have discretion in

ordering a transcript, we find it unnecessary that one

be produced in this case. The use of videotaped records

rather than the typewritten transcripts does not deny

a defendant effective assistance of appellate counsel.

Marshall v. Commonwealth, Ky., 60 S.W.3d 513 (2001).

In fact, the use of the videotape could eliminate the

possibility of errors in transcription and may in fact

reveal errors that might be overlooked in a transcribed

record. Marshall, supra. Wheeler has demonstrated no

prejudice resulting to him from the use of a videotaped

record without an additional typewritten transcript. He

has been provided with a complete trial record

pursuant to Britt v. North Carolina, 404 U.S. 226, 92

S.Ct. 431, 30 L.Ed.2d 400 (1971). The use of a

videotape record does not deny Wheeler due process.

XVI. Indictment/Aggravating Circumstance

The indictment was valid on its face and conformed

to statutory requirements and the indictment in regard

to aggravating circumstances was not defective. The

indictment against Wheeler satisfied the requirements

of RCr 6.10 because it informed him that he was

charged with a violation of KRS 507.020, murder, and

sets out the date, place and name of the victims he is

charged with intentionally murdering. In Wylie v.

Commonwealth, Ky., 556 S.W.2d 1 (1977), this Court

107a

held that an indictment is sufficient if it informs the

accused of the specific offense with which he is charged

and does not mislead him. The citation by Wheeler to

Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215,

143 L.Ed.2d 311 (1999), which relates to federal

prosecutions, is not contradictory to our RCr 6.10.

Jones, supra, holds that the indictment should furnish

the accused with a description of the charge which will

enable him to make his defense. To the extent that

Jones applies in any regard, due process has been fully

satisfied here. Under any test, the indictment was

sufficient.

KRS 532.025(1)(a) only requires’ the

Commonwealth to notify the defendant of aggravating

circumstances “prior to trial.” See Stopher, supra, at

793. There is no authority supporting Wheeler's claim

that an aggravating circumstance must be described in

the indictment. The aggravating circumstance here

was multiple deaths and he was indicted for killing two

persons.

XVII. Mutually Supporting Aggravator/Double

Jeopardy

Wheeler argues that the use of mutually supported

aggravating circumstances violates the prohibition

against double jeopardy contained in Section 13 of the

Kentucky Constitution and the Fifth Amendment to

the Federal Constitution. We disagree.

We decline to follow the theory presented by

Wheeler of the Georgia principle of denying imposition

108a

of multiple death sentences. The Georgia statute which

is relied upon by Wheeler ‘s different from the

Kentucky statute.

This Court has previously considered this issue in

Bowling v. Commonwealth, Ky., 873 S.W.2d 175 (1993)

and Tamme and held that the multiple death

restriction does not prohibit enhancement. Accord

Jones. No error occurred.

XVIII. Second Murder as Substantive and Aggravating

Factor

The use of another murder as a substantive crime

and as an aggravating circumstance does not violate

double jeopardy principles. Here, Wheeler was

sentenced to death for the death of each of the two

victims, aggravated by the fact that he also

intentionally killed the other victim. Tamme held that

the imposition of two death sentences by the

application of the same aggravating factor, the

intentional act of killing resulting in multiple deaths,

did not violate any double jeopardy principle.

Reliance by Wheeler on the cases of Heady v.

Commonwealth, Ky., 597 S.W.2d 613 (1980): Boulder v.

Commonwealth, Ky., 610 S.W.2d 615 (1980)

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