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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0551%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2015

## Text

- US
~~

]4- 1372 ° way 15 208

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

7a

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
cons

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0551%3A3. Public record. Not legal advice.