Robert Carl Foley v. Philip Parker, Warden, Kentucky State Penitentiary

COOK, Circuit Judges.

COOK, J., delivered the court, GILMAN, J., in which joined. MARTIN, 392-96), (pp. J. delivered a separate dissenting opinion.

AMENDED OPINION COOK, Circuit Judge.

Petitioner Robert Carl was con- victed of murder and sen- tenced to death. lengthy appellate After a process in Kentucky courts, Foley filed petition habeas raising thirty-six sepa- grounds rate for relief. The district court one, reviewed and denied each granted (COA) a Certificate Appealability as to four of Upon Foley’s claims. re- quest, we expanded the COA to include a kicked He then the head. back of in the be- set forth For the reasons fifth claim. saying “you son corpse, Rodney Vaughn’s judg- court’s the district low, affirm we to kill bitch, me to have you caused aof ment. Later, Foley explained my partner.” Background I. blood is thicker Lynn, kill “but hated to than water.” killed and Foley shot Carl Robert in Fo- Vaughn Lynn Rodney brothers Dugger, Ronnie organized then Kentucky, on County, Laurel home in ley’s Bryant Danny Joe Dugger, Bill people, A number August cov- the bodies and disposing assist him brothers, Phoebe Vaughn including They dumped crimes1. up the ering Rocky Dugger, Watts, Bill Ronnie Sinking Creek brothers’ bodies Foley (petitioner’s Arthur, Marge Lisa attempted to cover County and in Laurel aunt), and (Foley’s wife), Bridges Louise blame on other cast incident and up the at the children, gathered least six bodies discovered the Authorities people. Foley returned when Foley home Foley on two indicted later and days two Danny Joe friend with his auction car related murder other capital counts present men Although the other Bryant. with charged later Foley was offenses. cabinet in kitchen a guns had stored their police after discovered murders more four arrival, a .38 Colt snub- Foley kept upon Laurel septic tank in in a corpses four and his belt under stored revolver nose County. by his shirt. concealed murders Vaughn the trial for Foley’s table drink- the kitchen sat at group The 11, On August for scheduled flared between beer, soon tempers and 10, 1993, Foley’s trial, August the eve was intox- Vaughn, who Rodney Foley and be change a of venue moved for attorney admitted Foley belligerent. and icated the trial which publicity, pretrial cause of Rodney. by punching fight a instigated jury The hearing. a after court denied Bryant scuffle, Danny Joe a brief After murder two counts of Foley guilty of found to men, they returned separated the recommendation, jury’s and, following the The drinking. situa- table to the continue Foley to death. sentenced court the trial Rodney escalated, however, when tion affirmed Court Kentucky Supreme The Foley not to Foley and warned pointed in November and sentences the convictions Foley responded again. him sucker-punch Supreme 1996, States and the United his Rodney with down knocking violently, v. Foley in 1997. certiorari denied Court his then drew times. several fist (Ky.1996), Commonwealth, 876 942 S.W.2d Rodney six times shot revolver 234, denied, 118 S.Ct. 522 U.S. cert. arm, chest, left in the range, close a (1997). Foley filed L.Ed.2d back. Ky. pursuant petition post-conviction denied trial 11.42, the court but melee, P. R.Crim. during emptied

The house af Supreme Court brothers, The relief. only Foley, leaving in March 2000. decision firmed that house. As in the Dugger Ronnie Commonwealth., (Ky.), 17 S.W.3d 878 (other Foley) to v. than living witness 1055, 121 S.Ct. denied, 531 U.S. cert. Dugger ex- next, Ronnie happened what (2000). Foley then 148 L.Ed.2d gun another Foley retrieved plained trial, court trial a new for the moved cabinet, returned kitchen Kentucky Su motion, and the denied Vaughn remained Lynn living room where Foley Common- affirmed. Court Lynn preme brother, and shot dying his next to wealth, 2002-SC-0222-TG, (2) No. Court; 2003 WL was based on an unreason- 2003). at *1 (Ky. Aug. able determination of the in light facts presented to the state courts. While proceedings the state pended, Fo- 2254(d). § 28 U.S.C. ley stay moved for a execution district court and later filed petition Under “contrary clause, to” a writ of corpus. habeas The court district federal habeas may grant court the writ if granted Foley leave to amend his petition the state court arrives at a op conclusion to include the claim that formed the basis posite to that reached Supreme of his state-court motion for a trial. new Court on question law, ifor the state magistrate The judge Foley’s reviewed pe- court decides case differently than the tition, the Warden’s response, and subse- Supreme Court on materially indistin quent pleadings. magistrate judge guishable facts. Taylor, Williams v. recommended that petition be denied 362, 412-13, and that granted a COA be with respect to (2000). L.Ed.2d 389 Under the “unreason the merits of three claims and the timeli- application” clause, able a federal habeas ness of the claim Foley added amend- may grant the writ if the state court ment. Foley objections, filed and the identifies the legal correct principle from Warden gave notice that he was going the Supreme Court’s decisions but unrea to respond objections. The dis- sonably applies it to the facts of peti trict court adopted magistrate judge’s tioner’s case. Id. The court may look to report part rejected it in part. The lower courts of appeals’ decisions, not as district court petition denied the and binding precedent, but rather to inform granted Foley a COA with respect to four the analysis holdings claims, including both the timeliness and determine whether a legal principle had the merits of the by claim added amend- clearly by established Supreme the Foley ment. applied to this court for an Court. Hill v. Hofbauer, 706, 337 F.3d expansion of COA, the which we granted (6th Cir.2003). Finally, the habeas by a fifth adding claim. petitioner has the burden of rebutting, by clear and evidence, convincing pre the

II. Standard of Review sumption that the state court’s factual findings We de correct. review See 28 novo district U.S.C. court’s § 2254(e)(1); legal Elo, McAdoo 487, conclusions and v. questions mixed 365 F.3d (6th Cir.2004). 493-94 fact, law and and we review its factual findings for clear error. Armstrong v. III. Ineffective Assistance of Counsel (6th

Morgan, 372 F.3d Cir.2004); During Penalty Phase of O’Dea, (6th Lucas v. 179 F.3d Foley’s Trial Cir.1999). Under the Antiterrorism and Effective Death Penalty Act of 1996 Foley claims he was denied effec (AEDPA), a district court shall not grant a tive assistance of counsel because his trial petition habeas respect with to any claim counsel fully failed to investigate his back adjudicated that was on the merits in ground and did produce any mitigating state courts adjudication unless the result- evidence during penalty phase of his (1) ed in a decision that to, was contrary or trial. He contends that his counsel should involved an application of, unreasonable have called family members, six five clearly established federal law as friends, deter- and a school teacher who had not mined by the United States Supreme seen him since the 1970s to testify on his not warrant did mitigating circumstances in hearing a detailed Following behalf. Foley 104 S.Ct. Id. at Ky. death.” pursuant court Kentucky trial introduction to show that the Supreme fails 11.42, Kentucky P. R.Crim. should his counsel it. he contends and denied claim this Court reviewed have mitigation would the Rule have introduced judge reviewed magistrate changing Kentucky probability had a record and reasonable hearing 11.42 him to decision, concluding to sentence jury’s decision Supreme Court’s testimony could be because be Some should denied death. Foley’s claim that it described conclusion was mitigating, Court’s Kentucky Supreme considered nice, lov- giving, an unreasonable contrary to nor terms: Foley positive neither man, a hard clearly sweet, family established federal good ing, application evidence, though, denied agreed The district worker. Much law. distinctly neg- mitigating or claim. was either Fo- mentioned Several witnesses ative. assessing inquiry to our AEDPA limits violence, description ley’s penchant Supreme Court’s Kentucky whether ac- positive with the to reconcile difficult ei- not show Foley could conclusion with the crimes consistent counts but prejudice performance ther deficient Notably, Foley had committed. jury knew Washington, 466 under Strickland evi- come forward with Foley never has (1984), L.Ed.2d or mental childhood of a difficult dence to, an unreason- contrary or involved him in might portrayed problems of, fed- clearly established application able Although fami- light. sympathetic a more as determined law eral Foley had suf- testified ly members to this respect question with Our Court. medical were no injuries, there fered head then, Su- claim, whether the is toor these claims to substantiate records Strickland preme Court’s mentally impaired prove questions aside Putting unreasonable. of his crimes. the time nothing un- find performance, we counsel’s Kentucky Supreme in the reasonable cases bolsters previous our survey A prej- was not Court’s conclusion Kentucky Supreme view that our allegedly per- deficient udiced counsel’s Foley cannot es conclusion Court’s formance. See Ab correct. prejudice tablish 696, Bell, F.3d 708-09 Strickland, 226 v. a dur’Rahman relief under To obtain Cir.2000) (6th (finding perform deficient prove ultimately must petitioner counsel where that, prejudice not ance but probability “there is a reasonable long histo investigate petitioner’s errors, failed to the re unprofessional for counsel’s per antisocial and behavior ry violent proceeding of, would sult of the the evidence where and disorders sonality ais probability reasonable A different. mo petitioner’s description of a contained to undermine confi sufficient probability a and prison inmate a fellow 694, killing tive for Id. at outcome.” in the dence traits); v. Scott violent character history of chal- [petitioner] 2052. “When S.Ct. (6th 854, Mitchell, Cir. 880-81 209 F.3d ..., question sentence lenges a death the miti 2000) where prejudice no (finding probabili- ais reasonable is whether there wanted petitioner circumstances errors, gating that, the sentencer— ty absent girl siblings, his court, presented loyalty to the extent appellate including an — children, violent environ friend, and a and have con- the evidence—would reweighs it upbringing throughout his ment and aggravating balance of that the cluded —would negated by have been evidence of his his- clearly established federal tory assault, robbery, kidnaping, and law by as determined the Supreme Court. acts). other violent IV. Rebuttal Evidence addition, In although our is limit- review Foley complains prose that the ed to assessing cution elicited proof substantive guilt of his Court’s decision under the strictures of rebuttal, during its in violation of Ken AEDPA, we note the telling contrasts be- tucky’s rule that proof guilt substantive tween this case and those in which this presented should be during prosecu See, granted has e.g., relief. Har- tion’s chief. Wager v. Common ries, (counsel’s 417 F.3d at 639-40 inade- wealth, 28, 751 S.W.2d (Ky.1988). He quate investigation failed to discover evi- this raised claim on appeal, direct and the childhood, dence of traumatic including Kentucky Supreme Court dismissed it physical abuse, exposure to extreme vio- summarily, noting “that there was no error lence, damage, brain illness); and mental gravity sufficient to warrant reversal of Hamblin, (counsel F.3d 490-91 con- his conviction.” Foley, 942 S.W.2d at 890. ducted investigation no into mitigation, significant faces hurdles challeng which included evidence of unstable and First, this conclusion here. “a federal deprived childhood probable and mental court may not issue [a writ of habeas disability disorder); Coleman Mitch- v. corpus] on the basis of perceived error of ell, (6th 417, Cir.2001) F.3d 450-52 Harris, state law.” Pulley v. 37, 465 U.S. (defendant was abandoned his mother 41, 871, (1984). 79 L.Ed.2d 29 A raised grandmother, his who trial judge’s decision concerning the ad him abused both physically and psychologi- mission evidence is a state-law matter cally, neglected him while running her generally subject to habeas review. home as a house, brothel and gambling McGuire, Estelle 67-68, 502 U.S. him involved in her practice, voodoo (1991). S.Ct. 116 L.Ed.2d 385 Evi- exposed sex, him to group bestiality, and dentiary issues are not a sufficient basis pedophilia); Bell, Carter v. 218 F.3d for granting habeas corpus relief unless (6th Cir.2000) (counsel 594-600 deficient alleged deny petitioner errors failing to investigate present miti- fair Sowders, trial. Clemmons v. 34 F.3d gating petitioner’s evidence of poor, vio- (6th Cir.1994). 357-58 lent, and childhood, unstable childhood and We conclude that the admission of the adult injuries, head psychiatric problems, rebuttal evidence did deny Foley a fair positive relationships with step- trial. A survey of the evidence makes this children, family, friends); Skaggs v. clear. During prosecution’s case in Parker, (6th 235 F.3d 269-75 Cir. chief, three witnesses they testified that 2000) (post-conviction evidence indicated saw Foley Rodney shoot Vaughn: Ronnie that Skaggs mentally retarded, was suf- Dugger, Bill Dugger, Danny and Joe fered from organic brain damage, and ex- Bryant. Phoebe Watts testified that she hibited psychotic, paranoid, and schizo- began fleeing the house when she saw features).

phrenic Foley pistol draw his and heard shots as Accordingly, we conclude that the Ken- she left. Ronnie Dugger was the tucky Supreme Court’s decision deny to witness who testified Foley that he saw Foley’s ineffective-assistance claim was Lynn shoot Vaughn. Foley admitted car- contrary neither to nor an unreasonable rying pistol a the night of the killings and his it denied law when of due process Ac- and Rodney Vaughn. shooting admitted or a continu- of change venue for and motion Rodney was armed Foley, to cording pretrial of because alleges that He ance. and himself protect to him Foley shot of majority overwhelming the publicity, testified Foley also Vaughn. Lynn case the knew about prospective In Vaughn. Lynn shot Dugger Ronnie court, thirty percent to over coming that, before Dugger testified Bryant rebuttal, and Foley an already formed had kicked Foley Vaughns, shooting the after person sat at one such and least guilty was of a said, “you son and Vaughn Rodney jurors knew prospective and jury, on the my to kill to have me bitch, caused you charges pend- murder four other about the testi- Caldwell Vaughn].” [Lynn partner ato Foley. As an alternative against get to Caldwell both Foley tried fied that venue, Foley requested contin- change of saw that he testifying him lie for to abate over could publicity uance so and Vaughn Lynn shoot Bryant Danny Joe time. along go Dugger to Ronnie convince to statement.

with this change motion for of his In support of exhib- pages venue, Foley filed over Foley’s only substantive from articles affidavits, including its and Foley’s was rebuttal on came in guilt re- and four newspapers wide two state and Bryant presence in the admission 23, 1991, August from dated gional papers Vaughn. Lynn he shot Dugger that Ronnie re- The first articles August chief, the in prosecution’s During mur- Vaughn for the Foley’s arrest ported testify that witnesses heard four jury had District County Laurel ders. The gathering only one Foley was 23, 1991, pro- August order on an entered (Louise Bridges testified armed. who was person- and enforcement hibiting law gun.) had a Vaughn also Rodney about information disclosing from nel already testified Dugger Ronnie fall published articles case. Other Moreover, Ron- Lynn. Foley shoot he saw information additional provided of 1991 taken deposition, pre-trial Dugger’s nie status as including his about he claim that 1993, undercuts May this fact that status FBI informant When this evidence. “sandbagged” charges on jailed being from kept him any- Foley said if deposition his asked Vaughn time of at the Ohio pending Dugger shootings, Ronnie thing about Foley Articles stated killings. shoot hated Foley said testified deaths. assaults to earlier linked Thus, Foley should not partner. rebut- Dugger’s by Ronnie surprised recovered authorities In October Finally, testimo- Caldwell’s testimony. tal Bald in the property bodies four him to lie get tried ny that Ken- County, Laurel community of Rock several merely cumulative Foley was lime covered in bodies tucky. The Foley orches- testimony that witnesses’ tank tank, septic in a placed bodies. the victims’ disposal newspa- trated the Several with cement. capped testimony did sum, the rebuttal In murders. Foley to these linked stories per and does unfair Foley’s trial render Her- articles, Lexington In different relief. habeas entitle accounts gave witnesses’ ald-Leader septic killings both Change of V. Venue/Continuance Foley was that and asserted murders tank Addition- killings. nine a total of linked court violated the trial that Foley argues The 1991. in November followed al stories jury, trial, impartial to a fair rights County Laurel Circuit Court extended the or inflammatory ous as to render earlier gag order tank septic by trial unfair. 942 S.W.2d at 880-81. 8,1991. order entered November The Court found that jurors most heard little more than what Press coverage until subsided the fall of was in the indictment and 1992. concluded that papers Several carried a story jurors who served had about a search a for fifth victim formed an at the opinion regarding Bald Rock Foley’s guilt site and the discovery of two or inno- leg cence. evidently planted bones The court as a cited hoax. Mu’Min v. Virgi- nia, The 415, articles mentioned Foley 427, 500 U.S. and the Vaughn case. In January newspa- (1991), L.Ed.2d 493 for the proposition pers reported a that date was set for trial the trial judge great has deal of Vaughn case. month, That same discretion when assessing pretrial publicity reporters a civil covered lawsuit by filed juror contamination. Foley, 942 members of the family against the S.W.2d at justices 884. Three in dissent FBI. That appeared case also in the news found that the trial court erred it when May 1993. In late May the Lon- grant failed to a change of venue and that don reported Sentinel-Echo on the deposi- ten challenged jurors were biased tion testimony of several witnesses in the against Foley. Id. (Stumbo, J., 890-92 two against Foley. cases The same paper dissenting). The dissent emphasized the published from the excerpts depositions on number of prospective and jurors actual August 13, The 1993. trial court had or- who knew about and the crimes dered that depositions remain under charged, responses dire, their in voir seal. what it termed comprehensive re- In response motion, to Foley’s the Com- petitive newspaper coverage. Id. 890- argued monwealth the newspapers had low circulation Laurel County and District Court Decision that the mostly articles dated from 1991. The prosecution submitted fig- circulation The district court held that Ken- ures for papers and estimated less tucky Supreme Court’s decision was not than half potential jury pool was given unreasonable jurors’ attestation exposed to (Foley the stories. was tried they could remain impartial, the fact septic tank murders in April 1994. publicity abated the time of The trial court granted a change venue, trial, and that the had little knowl- and the trial held in Madison County, edge of the case and testified

Kentucky. Foley Commonwealth, 953 outside knowledge would not affect their S.W.2d (Ky.1997).) deliberations. The district court acknowl- State Court Decision edged that to twenty fifteen was a minutes The short Kentucky Supreme amount of Court time to verdict, affirmed reach a the trial court’s deny decision found there change was overwhelming venue a four-to-three evidence of vote. guilt. The court reiterated court noted that Foley request did not that all selected for trial change day until the venue before trial affirmed that they could fair be and impar- was scheduled begin, that most tial and concluded that the Kentucky Su- newspaper articles he cited were preme analysis Court’s was neither con- years two trial, before the and con- trary to nor an unreasonable cluded that the articles were not so numer- Supreme precedent.

387 presumption jury itself a of raise Analysis DeLisle, taint....” 161 F.3d at 382. The the district We conclude lay juror must be able to aside prospective pre this claim. If properly denied impressions his or her or opinions a defendant’s publicity jeopardizes trial upon render a verdict based the evidence jury, impartial fair an right a trial Irvin, 723, presented in court. 366 U.S. at grant trial the defendant court should 1639; Ritchie, 81 S.Ct. 313 F.3d at 962. Dowd, 366 change a in venue. Irvin v. question juror The “did relevant is [the] 717, 722-24, 1639, 6 L.Ed.2d any swear that he could set aside (1961); Rogers, v. F.3d 751 Ritchie 313 might hold and the case on the decide (6th Cir.2002). 948, Prejudice result 956 evidence, juror’s protesta- and should the pretrial publicity pre from can be ing impartiality tion of have been believed.” Killinger, sumptive or actual. Nevers v. Yount, 1025, 1036, v. 104 Patton 467 U.S. (6th Cir.1999), abrogated 169 F.3d 362 (1984). S.Ct. 81 L.Ed.2d 847 Stovall, v. grounds, on other Harris (6th Cir.2000). Presump 942-43 F.3d The state court decision concern oc pretrial publicity from prejudice tive an ing contrary venue was neither to nor at inflammatory, circus-like curs where of law as unreasonable federal the courthouse mosphere pervades both by the United States Supreme determined Ritchie, surrounding community. First, pretrial Court. it clear that the is 952-53; Parker, F.3d at Gall this publicity in case does not merit (6th Cir.2000). Prejudice F.3d prejudice. presumption Although of there publicity rarely presumed. is pretrial significant media when Fo attention (6th Rivers, 161 F.3d DeLisle v. arrested, ley was when the bodies were Cir.1998). tank, septic and when discovered significant developments in the there were pretrial publicity can Where case, this was one of the rare cases presumed prejudicial, the trial court not be is atmosphere. tried in circus-like There it must determine whether rises to then suggest con nothing in the record to Ritchie, prejudice. the level of actual jury tact between the media dur primary at 962. The tool discern F.3d Ritchie, ing 313 F.3d at 952- the trial. See voir prejudice searching actual is ing 53. jurors. prospective Id. The court dire Second, review of the voir dire does coverage media and the our must review the pretrial support the conclusion that jurors’ statements at voir substance prejudice. See community- publicity resulted actual dire to determine whether a surround- against publicity the defen id. at 962. There wide sentiment exists Nevers, and the ing murders Negative dant. 169 F.3d both discovery septic the four bodies in coverage by is insufficient to media itself tank, many exis articles linked prejudice, actual and the establish By the time of as and earlier crimes. juror’s preconceived tence of a notion these trial, however, defendant, nearly years had two guilt or innocence of the ap- more, of the articles elapsed since most without is not sufficient rebut the responses potential jurors’ presumption impartiality. peared. Id. at 366- of time. passage voir dire reflected this prior knowledge of the exis 67. “[M]ere kill- case, was accused of familiarity with the Most knew tence knew involved, Vaughns, a smaller number preexisting some issues or even merits, killing the four suspected that he was to the does not in and opinion as people tank, found in septic and still that he would enter jury deliberations feel- smaller number knew details about Foley ing that Foley was not guilty and that the and both crimes from news prosecution accounts. had the burden proof, Juror E said he had no opinion guilt without To quantify the responses, voir dire six hearing all facts, Juror F said he could of the ninety-eight prospective jurors had an impartial juror be understood heard nothing case; eighteen were burden of proof, Juror G she said they excused because had opinion sure if she could remove all information Foley guilty; seventeen were excused from her mind during the trial and deliber- because, given they what had read ations, but the trial court was convinced case, heard about the they could not pre- that she would follow instructions de- Foley innocent; sume six were excused cide the only on the present- evidence personal because of case; knowledge of the ed, Juror H said she had ill no feelings nine were excused for bias due connec- toward put could aside all news tions with law enforcement victims; or the reports, Juror I problem no presum- seven were excused for opposing the death ing Foley’s innocence and putting the pub- penalty; one was excused because licity out mind, her (the and Juror J would not consider a penalty other than foreman) said the media had not death if Foley convicted; and five swayed opinion and he had formed no were excused for miscellaneous reasons. impressions of Foley. See id. Foley, 942 S.W.2d at 881. Of the twelve Thus, all of the ten challenged jurors actually who verdict, rendered expressed view, variously phrased, that prior two had no knowledge case, six they could set aside what they had heard were aware implicated about the case and decide it based upon killings and septic tank presented evidence in court. See Pat case, and the remaining four knew about ton, 467 U.S. 104 S.Ct. 2885. The the Vaughn killings but not septic tank remaining question is, in view of the pre case. trial publicity, jurors’ should the state The Kentucky Supreme Court did not ments of impartiality be believed. “In a directly address whether who community where most veniremen will ad were not excused swore that they set could mit to a disqualifying prejudice, the relia aside opinion they might hold and bility of the protestations others’ may be decide the case on the evidence. The drawn into question; for it is then more court analyzed the issue under its own probable that they part are aof communi precedent and described the voir dire re- ty deeply hostile to accused, and more sponses of the ten challenged jurors. See likely that they may unwittingly have been id. at 882-84 & nn. 2-11. Foley’s brief has influenced it.” Florida, Murphy v. conceded the accuracy of the Kentucky 794, 803, 44 L.Ed.2d Supreme Court’s descriptions of the re- (1975). case, In this forty-four of the sponses of jurors. those Juror A con- ninety-eight prospective jurors were dis vinced the trial court that she would do qualified opinion because of of guilt, knowl her best to base her verdict solely on the edge of case, or bias in favor of the presented court, B Juror stat- prosecution. Foley, 942 S.W.2d at 881. In ed that the massive publicity would not Murphy, the Supreme Court determined affect his rendering a fair impartial that the fact that twenty of the seventy- verdict, Juror C had no as to Fo- persons eight questioned were excused be guilt, (the ley’s alternate) Juror D said they cause indicated an opinion as to peti- impar- judge pre- the case on the facts impeach the guilt did not tioner’s Foley points speed to the of the an sented. tiality jurors express who did not of the jury’s compelling verdict as the conclusion 421 at guilt. Murphy, as U.S. to Mu’Min, jurors prior knowledge that the of the 2031; see also 500 95 S.Ct. and, instances, knowledge case in some (although eight 111 S.Ct. 1899 U.S. Foley in against qua- the accusations the aware jurors empaneled the twelve were druple-homicide case. defendant, all of reports about the of news they jurors empaneled stated that Court Decision State Accordingly, we hold impartial). could be Court, in a Supreme The four- Kentucky Supreme Court’s deci- that decision, to-three affirmed the trial court’s require pretrial publicity did not sion ju- ten regarding challenged decision preju- change of venue because of actual a juror’s The rors. court reviewed each re- to contrary neither nor an unrea- dice was in sponses pre- voir dire to examine their application of federal law as deter- sonable knowledge trial other crimes connected States mined the United Foley, ability put their to such to knowl- Court. minds, ability to edge out their their presume Foley innocent. As summarized properly court also district above, Kentucky Supreme de- claim the trial court Foley’s denied ju- of the challenged termined each granted him continuance should rors stated that he could set aside what he publicity die down. Denial of a contin let only knew about the case and decide it on level of a constitutional uance rises to the presented at trial. evidence arbitrary if it is as to violation so & nn. 2-11. The court S.W.2d 882-84 process. Slappy, violate due Morris v. jurors’ that the recollections di- concluded 1, 11-12, 1610, 75 L.Ed.2d time, minished with that most remembered (1983). The must petitioner also dem details, few that none who served indicated denial of a continuance onstrate that the opinion regarding that he had formed an actually prejudiced his or her defense. or that the information affected guilt (6th Renico, F.3d Burton v. on the ability render verdict based Cir.2004); Powell, 332 F.3d at 396. The jurors presented, and that Kentucky Supreme Court found that the by the might have been influenced who justified in denying trial court was publicity were excused the trial pretrial motion for a continuance because filed of the court. The court found most Thus, it on the eve of trial. the denial was merely coverage mentioned the facts press Moreover, arbitrary. Foley cannot case, articles that most because, above, as prejudice show stated had little distribution papers impos it he did demonstrate that was County, and that while most Laurel impartial jury sible to seat Laurel they hearing of the case remembered County in the fall of 1993. could not recall details. Id. at 882-85. Refusal VI. Trial Court’s Strike dissent, Stumbo, writing for the Justice Ten Jurors for Cause challenged ju- ten noted that each of the rors knew who and knew Foley argues that the trial court erred ten charged, that six of the knew by failing to strike ten he chal- crime other with which lenged for cause. He maintains that the murders rehabilitation accepted jurors’ not have and that extensive charged, court should ju- they necessary qualify in order impartial could be statements rors for service on jury. Id. at 891 in Foley’s might be partial despite (Stumbo, J., dissenting). addition, In attestations to the contrary. dissent responses identified by six of the Analysis jurors that suggested they believed, or explained As above in our dis knew people believed, who that Foley was cussion pretrial about publicity, prior guilty. Finally, Id. the dissent asserted knowledge of the case or even an opinion jurors’ knowledge of the media on the merits is not enough to disqualify coverage and facts surrounding this case juror who swears that he can any set aside and the charges against other Foley meant opinion and decide the case upon the evi that it was reasonable to infer actual bias presented dence trial, juror’s and the prejudice. Id. at 891-92. protestation of impartiality is to be be District Court Decision Patton, lieved. See 1035, 467 U.S. at The magistrate judge observed that 2885; Irvin, the S.Ct. U.S. at trial court conducted a lengthy voir dire 1639. In case, this the trial court conduct days over three and that all ten challenged ed a thorough voir dire and was satisfied jurors questioned about from whether responses the of the ten challenged they could be impartial jurors and consider the that they could set aside what they full range penalties. of The magistrate had heard about the case and decide it judge reviewed the voir of dire each of the based upon the evidence presented in ten jurors and noted that they Patton, had court. See U.S. at very limited knowledge of the events re- S.Ct. 2885. Foley conceded the accuracy ported in media, the that this information the Supreme Court’s sum was not probative guilt, and they mary that jurors’ responses and has not did not learn the information anyone shown that the state court’s decision re with associated the case. In addition, garding the those jurors was contrary to or an magistrate judge found jurors’ that the re- unreasonable application of federal law as sponses did any reflect preconceived by determined Supreme Court. opinions guilt or hostility Foley. toward VII. The Finally, Commonwealth’s Use of magistrate judge concluded Aaron Caldwell’s Testimony that Foley had not rebutted the state courts’ factual findings and that the Ken- Foley argues that the Commonwealth tucky Supreme Court’s decision was nei- attempted to bolster its using per- ther contrary to nor an ap- unreasonable jurious testimony from Caldwell that Foley plication precedent. tried to get Caldwell to lie for him. Dur- prosecution’s rebuttal,

The district Caldwell court overruled Foley’s ob- testified that Foley jections wanted to Caldwell say to magistrate judge’s report that saw Danny he Joe Bryant Lynn shoot recommendation. The court distin- Vaughn and wanted guished Caldwell to the case convince relied upon by Foley, Dugger Ronnie to go along with v. Brigano, (6th this state- 232 F.3d 499 Cir. Wolfe ment. 2000). In Wolfe, two knew the vic- parents tim’s well and did not state un- In a June 2001 motion for a trial, new equivocally that they set could aside their Foley alleged that Caldwell perjured had relationships with the parents victim’s himself at trial. He attached an affidavit decide the case fairly. Id. at 502. In this Caldwell, also known as Rivers, Aaron case, the district court found no evidence dated March 2000, in which Caldwell of a significant risk that swore that Foley had not asked him lie, conflicting affida- signed Rodney Caldwell that him told Dugger Ronnie trial while years after several vits that Caldwell Vaughn, Lynn killed as prison system same serving time Police want- Kentucky State what the said believe that reason to leaving no prosecutor hear, ed initial than his any more reliable they were Fo- While testimony. his on him coached knowl- prosecution’s As to testimony. Cald- pended, trial new ley’s motion perjury, alleged Caldwell’s edge of this In affidavit. another executed well not show that could found court Caldwell affidavit, June dated known could prosecutor paid the sister Dugger’s Ronnie swore testimony trial would recant testi- Caldwell Dugger’s corroborate him $8000 Finally, later. years or seven did six trial, prosecutor that the mony likeli- a reasonable was not there held trial, that say at him what about coach testimony affected Caldwell’s hood re- affidavit the earlier completed there was jury because judgment to do him Foley coerced falsely that ported Foley’s guilt to testimony overwhelming as a maxi- from transferred be to order so in cover-up. to orchestrate attempts his and and prison, security a minimum to mum case in this many Decision times had lied so Court District that keep up. to hard it was himself to benefit that the concluded judge magistrate The Foley’s reasonably ap- objected to Supreme Court The Commonwealth States, 405 U.S. affi- 2001 Giglio an October v. United and attached plied motion (1972), to the affidavit 104 Caldwell, 2000 31 L.Ed.2d April from davit court’s the state and that wrote Caldwell, Caldwell of the and letters facts contrary nor an to Handy Tom neither Attorney was decision to Commonwealth clearly estab- Public Advo- unreasonable Kentucky Department and The dis- precedent. The Supreme Court Bowman. lished Cathy Investigator cacy find- courts’ the state detailed Caldwell trict court that Handy stated letters with the agreed him conclusions ings and or have kill him would feared found court The district judge. magistrate letter undated prison. An killed conclusions Court’s Kentucky Supreme prosecution why wondered Bowman entitled factual issues any- on the relevant against stand take the him to allowed correct- presumption and a deference The case. murder one, especially conclud- § 2254 U.S.C. 28 ness under Caldwell that recited affidavit 2000 April not was state court’s that the ed in re- affidavit 2000 March signed precedent. Supreme Court any contrary to Foley. his life on threat to a sponse prosecution reiterated court The disa- 2001 affidavit October Caldwell’s committed that Caldwell aware for the vouched the letters vowed Foley could trial and that perjury 2001 affidavit. June testi- that, Caldwell’s absent demonstrate Decision Court State have might trial outcome mony, the court found trial The over- there was because different trial testimo- to show Caldwell’s failed guilt whelming it knew false, prosecutor that the ny was shift witnesses intimidate attempts of Caldwell’s absence false, or blame. jury’s changed testimony would Analysis Kentucky Supreme The verdict. district conclude We 2003 each conclusion. with agreed claim. this denied properly court noted *2-3. The WL 392 use knowing perjured testimony, includ- VIII. Conclusion ing the failure to correct false testimony, We AFFIRM the district court’s dis- constitutes a denial process of due if there missal of petitioner’s each of claims for

is reasonable likelihood that the false habeas corpus relief. testimony could have affected judg- ment of the jury. Napue Illinois, 264, 272, MARTIN,

U.S. BOYCE F. JR., S.Ct. Circuit L.Ed.2d (1959). Judge, dissenting. This includes the use of testi- mony, whether uncorrected, elicited left I agree cannot with the conclusions prosecutor knows or should know reached the majority in V and Parts VI is false. Giglio, 153-54, 405 U.S. at opinion. its My discussion will treat case, S.Ct. 763. In this Foley has not these two parts one, as because the analy- shown that prosecution knew or should sis of Foley’s motion for change of venue have known that Caldwell committing (Part V) strikes me as fully intertwined perjury when he testified at Foley’s trial. with the analysis of his motion to strike None of Caldwell’s post-judgment state- (Part ten VI). for cause ments that support Foley date to the time Moreover, trial. the accumulation The majority is correct that Irvin v. of contradictory statements Caldwell Dowd, has 81 S.Ct. 1639, 6 made years over the provides no basis to (1961), L.Ed.2d 751 supplies the fulcrum conclude trial, Caldwell lied at op- as by which we judge must the reasonability posed to later. Finally, if even Caldwell’s of the Kentucky Supreme Court’s decision. trial testimony false, were Foley did not Irvin, In Supreme the reversed establish a reasonable likelihood that this state-issued death sentence grounds on testimony could have affected jury’s the that prejudicial pretrial publicity should judgment. Caldwell testified Foley have mandated a change venue, of just wanted him to implicate Danny Bryant Joe to a county adjoining the county in which Lynn in Vaughn’s death. Notably, this the occurred, murders had but a county was different from Foley what testified at geographically far enough removed to be trial, when he blamed Lynn’s death on untainted by the publicity. The Court not- Ronnie Dugger. any In event, several wit- ed that: nesses testified that Foley was only the One of rightful the boasts of Western person armed at the gathering, that civilization is that the State has the bur- shot Rodney Vaughn, and only den of establishing guilt solely on the and Ronnie Dugger were in the house of basis produced in court and when Lynn Vaughn was shot. Ronnie under circumstances assuring an ac- Dugger testified that Foley shot Lynn, and all cused the safeguards of a proce- fair several witnesses testified that Foley re- dure. These rudimentary conditions for cruited them to help cover up the crimes. determining guilt are inevitably wanting short, In Caldwell’s trial testimony was not if the jury which is to sit in judgment on a crucial link in the case against Foley. a fellow human being comes to its task Accordingly, the Kentucky with its mind ineradicably poisoned Court’s reject decision to Foley’s Giglio against him. claim was neither contrary to nor an un- reasonable application of federal law as (Frankfurt- U.S. at 81 S.Ct. 1639 determined the United er, States Supreme J., concurring). To this premise, broad Court. however, was qualification added reflect- Id. over.” at over repeated were in the trials of criminal reality the subject the Foley was noted They also era: modern re- in the local editorials of several however, the required, It is not even which editorials newspapers, gional the facts totally ignorant be inflamma- were conceded majority days of In these involved. and issues time at Furthermore, news tory. methods and diverse swift, widespread crimes of other reports with flush can communication, important an Newspa- allegedly committed. Foley had of the interest arouse expected be that, deals for indicated per articles any of scarcely vicinity, and in public Foley would government, (cid:127)with the as to serve qualified those best crimes for other jail time serving been or impression some have formed will not im- murders —the Vaughn of the time case. the merits as opinion government had the being plication in criminal true particularly This is an such deal with plea brokered existence mere that the To hold cases. murders criminal, Vaughn inveterate as to notion preconceived damning Most avoided. been could have accused, without anof innocence guilt or concomitant however, was the presump- to rebut more, sufficient is murders four other reporting news impartiality juror’s prospective aof tion which and for charged which with stan- impossible to establish be would death seeking were prosecutors state lay can juror if the It is sufficient dard. more even were murders These penalty. ren- impression aside those than random seemingly violent pre- the evidence on based der a verdict brothers, the bodies Vaughn court. sented for several having hidden four victims Pat 1639; also 722-23, see S.Ct. Id. discovered tank and septic in a years 1025, 1036, 104S.Ct. Yount, ton the bodies year 1991, the same (1984) (noting Sinking L.Ed.2d found brothers swear juror a “did is: for a question fact, Foley’s critical motion the In Creek. any opinion aside set quadruple-mur- he could this as venue to change of on the case was trial decide and the hold and might granted, was trial der 1994, protesta juror’s County in evidence, and should in Madison eventually held believed[?]”). Lau- following double-murder impartiality his year of tion ain balanc engage County courts trial. rel forces Irvin I sure, Foley’s in but act, be ing venue of change Foley’s denying In balanc courts’ that’ state agree cannot court habeas, district federal claim on was reasonable. petition- of situation likened (6th Rivers, 370 change 161 F.3d v. of review in DeLisle er The state-court of majority a contested, Cir.1998) (en banc), which with in highly claim venue of Ir- DeLisle’s petitioner high rejected this Court of the members three arguments. venue of change vin-based four-member against writing in dissent that because noted majority at 890- DeLisle The Foley, S.W.2d 942 See majority. jury venire 15% fewer than disagreed the dissenters example, For 91. in con- guilt, about DeLisle’s pretrial fixed on gloss majority’s with Irvin, too that was in the 90% trast “[n]ews- out that pointing coverage, media received properly to have DeLisle little 1991 for of August coverage between paper “pre- of grounds on venue change comprehensive trial date respect- I Id. prejudice.” sumed murders details The repetitive. 394

fully disagree must with the district dire”) court’s voir (emphasis in original); Murphy, reliance on DeLisle. 421 U.S. at 95 S.Ct. 2031 (concluding that some bias on all, the part

First of the jury has a stronger claim venire presumed does not “impeach prejudice than DeLisle, did indifference” of any because the Kentucky individual Supreme Court who “displayed no makes clear that at own”). least 33% of animus on jury their venire “either believed [Foley] was guilty now, contends as he did on direct or did presume him to be innocent.” review before the Kentucky Supreme sure, To be this is not Irvin, the 90% in Court, that voir dire revealed implied bias to have fully one-third of jury in ten prospective jurors, all but one of venire so infected is no means insub- whom were ultimately empaneled. stantial. Murphy Florida, 421 U.S. Cf. majority of the Kentucky high 794, 803, court com- S.Ct. 44 L.Ed.2d 589 pared (1975). Foley’s case to that of Skaggs v. Commonwealth, 694 S.W.2d 672 (Ky.1985), Second, and more importantly, Foley noting that pretrial publicity in Skaggs has a much stronger “actual prejudice” was far more inflammatory than here, and claim DeLisle, than did because Foley can still it was found to have dissipated over actually point to the voir dire and show time and thus not to have been great that ten whom he asked the trial influence on prospective jurors. judge to strike for cause were retained. 942 S.W.2d at 884. This The Kentucky fact is in stark Su- contrast to that which preme majority we deemed critical in indicated DeLisle: that it was is “[W]hat greatest guided being importance by the [is United that] States none Su- those actually preme seated on Court’s jury DeLisle’s decision Mu’Min v. Vir- challenged cause, for ginia, and none expressed S.Ct. fixed opinion about guilt.” DeLisle’s (1991), L.Ed.2d 493 in which the Court F.3d at 383 (emphasis in original); see also stated: v. Killinger, Nevers (6th 169 F.3d [O]ur own eases have stressed the wide Cir.1999) (rejecting petitioner’s claim at granted discretion to the trial court in least in part grounds on that only two conducting voir dire in the pre area of

jurors eventually seated were challenged publicity trial other areas of in cause). Thus the record of voir dire quiry that might tend to juror show bias. Foley’s case becomes critical. See Mont- Particularly with respect to pretrial pub gomery v. Commonwealth, 819 S.W.2d licity, we think this primary reliance (“One on (Ky.1991) of the substantial con- the judgment of the trial court makes siderations in affirming the trial court on a good sense. The judge of that change court of sits venue issue is the trial judge’s in the locale where the decision permit publicity to is said broad voir dire to to have had identify its effect prospective jurors brings to his so affected by pretrial evaluation of publicity any that such they claim should his ex- own be cused cause.”); perception Nevers, of the depth F.3d at 363 extent of (concluding “pretrial that news stories that publicity might that ju influence a would inherently prejudice ror. court, The trial jury pool- of course, does not can be discerned impute reviewing both his own perceptions jurors to the the extent and nature of the publicity and who are being examined, but these per the responses of the prospective jurors in ceptions should be of assistance to it in Appel- knew that “He D: As Juror to to inquiry an how detailed deciding for murder arrested been lant had jury venire. members make of ... killings [He] of other suspected was 427, 111 S.Ct. 1899. 500 U.S. at de- questioning under admitted from all of judge, state trial to According in people that counsel most of fense ultimately rehabilitated were time believed community that their they do would by saying that merely both had killed Appellant that solely on a verdict to base best” “human brothers.” open court. presented evidence could remember E: “[He] As Juror to seem would 2. This n. at 882 942 S.W.2d tank.” in a septic of bodies found rumors they swear that requirement satisfy the to recalled F: “[He] had Juror they As to what aside to able “set be to as an Appellant to referring [newspaper based decide it the case about heard suspected who had court.” FBI informant presented evidence upon killing.” Patton, a previous 467 U.S. (citing at 890 Maj. Op. s 2885). require But Patton 1036,104 S.Ct. remembered “[She] G: As Juror more to do for cause challenged juror FBI in- was Appellant that reading rather, impartiality; his simply swear than questioning direct Upon formant. reason the trial requires that Patton she was counsel, that she stated defense “protestation juror’s that ably believe all remove could she not sure infor- if mind, ais here this in With impartiality.” during the trial her mind mation from the ten each of what sampling and deliberations." by the dire, as characterized voir said on Appel- knew “She Juror H: As to not the majority, Supreme Court other four killing accused lant was dissent: found bodies four and that persons feel- her asked A: “When As to Juror septic tank.” in a related killings, she ings about could remember I: “She to Juror As proba- he who others she knew felt the bod- something about there same she bly guilty felt found being Ohio people of four ies was accused Appellant knew .... She tank.” septic in a murders.” four other ): (the foreman eventual Juror J As to if recollect B: “He couldn’t As to Juror only had attorney not “[Foley’s] defense Appellant said ever he had J Juror family members of represented had he think He didn’t guilty. family other opposed had but also statement, could made such concern- questioned When matters.... say for sure.” obli- Appellant whether people heard “[She] As to Juror C: prove evidence produce gation to be the trial would remark that he innocent, J stated Juror himself County Laurel many in because moved Appellant wanted had opinion. She already formed his innocence.” prove two killings read about (em- n. 2-11 at 882-83 Foley, 942 S.W.2d Appellant aware ago and was years added).1 phasis killings.” other charged with was jurors themselves. Ken- of the the words quoting am Here I Court, the words not Supreme tucky Having reviewed these and other voir other murders with which was ac- dire statements, the dissenters on the small, cused. In a rural county such as Kentucky Supreme Court Laurel, concluded that it strains credulity to think that only had the trial court disregarded facts and rumors about swirling Foley’s relevant United States Supreme gruesome quadruple murder would not precedent in not striking some ju- have significantly tainted his double-mur- cause, rors for it disregarded has Assoc, the Com- jury. der See Nebraska Press v. monwealth’s own precedents as Stuart, well: 427 U.S. 599 n. It makes no (1976) difference that jurors L.Ed.2d 683 (noting that they give claimed “the could smaller the defendants a community, the more like- fair ly trial. As we held in there Pennington will be a v. need for a change of Commonwealth, venue ... [316 S.W.2d (Ky. when a heinous crime is commit- 1958) ted”). ] “[i]t is the probability of bias or This borne out the number prejudice that is of potential jurors in ruling determinative dismissed immediately on a challenge cause;” for venire, from the and in Tayloe as well byas the voir dire v. Commonwealth, [335 statements of (Ky. S.W.2d 556 whom chal- 1960) “the ] lenged conditions were such cause but who were ultimately their connections would seated probably the trial judge. I sub- cannot deem consciously affect their decision of “reasonable” Kentucky Supreme case adversely to the defendants”; Court’s contention these jurors had in Marsch Commonwealth, “rehabilitated” [743 on voir dire.2 (1987) S.W.2d 830 ] “their statements, sum, In I believe that the state courts of given response to leading questions, Kentucky did not merely apply Irvin in- that they would disregard previous all correctly case; in Foley’s rather, they ap- information, opinions and relationships plied it unreasonably. Such unreasonable should not have been taken at face val- Court precedent ue.” Pennington, Tayloe, and Marsch grant mandates a of the writ on the inter- stand for the principle objective twined change-of-venue and motion-to- bias juror renders a legally partial, de- strike issues. Accordingly, I respectfully spite his claim of impartiality. dissent as to Parts V and VI of majori- (internal Id. citing references omit- ty opinion. ted). This is exactly my point as well. Ac-

cordingly, I believe the district court gave

short shrift actual, to the un-rehabilitated

prejudice that many jurors pos-

sessed. Foley’s case is unique in that

most of the seated simply a —not majority of those on the venire —were

aware of the circumstances sur-

rounding the two murders on which they pass judgment, but also of the four 2. The mere fact that there a strong dis- Irvin. The dissenters do good make several Foley's sent in appeal state does not of points, however, course point and these align with mean the Kentucky Supreme Court ma- my own majority determination jority was unreasonable in its unreasonable.

Case Details

Case Name: Robert Carl Foley v. Philip Parker, Warden, Kentucky State Penitentiary

Court Name: Court of Appeals for the Sixth Circuit

Date Published: May 17, 2007

Citation: 488 F.3d 377

Docket Number: 04-5746

Court Abbreviation: 6th Cir.