Roger Wheeler v. Thomas Simpson, 852 F.3d 509

Background

Roger Wheeler was convicted in 2001 of two intentional murders; jury recommended death based on a multiple-deaths aggravator and the trial court imposed two death sentences.
Kentucky courts affirmed conviction and sentence; state post-conviction relief was denied.
Wheeler filed federal habeas in 2009; the district court denied relief and a COA was granted on multiple claims.
The Sixth Circuit initially granted habeas relief on a juror-bias claim but the Supreme Court reversed that portion and remanded for consideration of remaining penalty-phase claims.
On remand the Sixth Circuit addressed multiple penalty-phase claims (furlough evidence, ineffective assistance, jury instructions, prosecutorial misconduct, proportionality review) and affirmed the district court, denying habeas relief.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admission of evidence about prison furloughs	Furlough testimony led jury to think Wheeler might be released on furloughs if not sentenced to death, unfairly pushing for death	Claim is procedurally defaulted; even on merits, not shown to make sentencing unreliable	Procedurally defaulted; alternatively, no Eighth Amendment violation shown
Counsel ineffective for introducing prior furloughs and incarceration record	Introducing furloughs prejudiced jury and opened door to harmful prosecution argument	Counsel pursued a mitigation strategy (model-prisoner evidence); Strickland not violated	No Strickland violation; strategy reasonable and no prejudice
Counsel ineffective for failing to object to prosecution cross-exam about furloughs/arguments	Counsel should have objected to speculative, prejudicial furlough questioning and closing remarks	Claim is procedurally defaulted in part; where preserved, testimony was accurate and fair rebuttal to defense mitigation	Failure-to-object claim partly defaulted; where reviewed, no deficient performance or prejudice
Jury unanimity / Mills challenge to penalty instructions	Instructions implied mitigating factors had to be unanimously found, violating Mills	Jury was instructed only that the verdict must be unanimous; silence on unanimity for mitigators does not imply unanimity requirement	No Mills violation; instructions reviewed in context and held constitutional
Prosecutorial misconduct in penalty-phase argument	Prosecutor called mitigation "excuses" and offered personal opinions, infecting trial with unfairness	Prosecutor had wide latitude to argue weight of mitigation and respond to defense	No due-process violation; remarks within permissible argument bounds
Challenge to Kentucky proportionality review	Kentucky’s comparative review is arbitrary because it only compares to cases where death was imposed	Supreme Court precedent does not require comparative review against non-death cases; state practice lawful	No federal constitutional defect; claim fails under existing Eighth Amendment precedent

Key Cases Cited

Williams v. Taylor, 529 U.S. 362 (standard for §2254(d)(1) "contrary to"/"unreasonable application")
Strickland v. Washington, 466 U.S. 668 (ineffective assistance framework — deficient performance and prejudice)
Skipper v. South Carolina, 476 U.S. 1 (right to present evidence of good prison behavior as mitigation)
Mills v. Maryland, 486 U.S. 367 (jury unanimity and mitigating-factor instructions)
Harrington v. Richter, 562 U.S. 86 (deference to state-court adjudications under §2254(d))
Wiggins v. Smith, 539 U.S. 510 (Strickland prejudice standard in capital cases)
Pulley v. Harris, 465 U.S. 37 (proportionality review and Eighth Amendment discussion)
Darden v. Wainwright, 477 U.S. 168 (standard for assessing prosecutorial misconduct claims)
California v. Ramos, 463 U.S. 992 (permissibility of speculative instructions regarding executive clemency)