Lead Opinion
GRIFFIN, J., dеlivered the opinion of the court in which MERRITT and WHITE, JJ., joined. MERRITT, J. (pg. 521), delivered a separate concurring opinion.
OPINION
This habeas case returns to us on remand from the Supreme Court. Previously, this court granted habeas relief to petitioner Roger Wheeler based on the state trial court’s decision to remove a juror who could not give sufficient assurance of neutrality or impartiality in considering whether to impose the death penalty. See Wheeler v. Simpson,
I.
In 2001, a jury convicted petitioner of two counts of intentional murder. Petitioner’s victims were Nigel Malone and his girlfriend, Nairobi Warfield. The jury recommended a death sentence after finding one aggravating circumstance: that petitioner’s “act ... of killing [was] intentional and resulted in multiple deaths[.]” Ky. Rev. Stat. § 532.025(2)(a)(6). The trial court followed the jury’s recommendation and imposed a death sentence for each conviction. On direct appeal, the Kentucky Supreme Court made the following findings of fact:
On October 2,1997, Louisville police discovered the bodies of [Malone and War-field] in the apartment the victims shared. The male victim was found in a hallway near the bathroom. He had suf*513 fered nine stab wounds. Two stab wounds to the chest were cоnsidered the fatal wounds by the medical examiner. She described the crime scene as having blood spatters on the floor, walls, furniture and appliances. The medical examiner believed that the main struggle occurred in the kitchen and progressed to the hallway where the body of the male victim was found.
The female victim died as a result of manual strangulation. The medical examiner testified that she believed the struggle between the female and her assailant occurred in the bedroom where she was found. The female victim had multiple abrasions on the left side of her neck and lacerations with a bruise on her mouth and several bruises on her lips. Her body was found in a seated position, leaning against a bedroom wall. She was covered with a blanket or quilt and a [pair of] 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.
Wheeler v. Commonwealth,
Wheeler filed the instant petition for a writ of habeas corpus in 2009. A magistrate judge recommended granting the Warden’s motion for summary judgment and denying the habeas corpus petition. The district court agreed with the magistrate judge and denied the petition. The district court granted a COA as to ten claims, and we later expanded the COA to include two additional claims.
Having previously decided petitioner’s guilt-phase claims, and the Supreme Court having denied his certiorari petition, our decision regarding those claims is law-of-the-case. See, e.g., Bowles v. Russell,
II.
The Antiterrorism and Effective Death Penalty Act of 1996 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
(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 adjudiсation 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 precedent and arrives at [an opposite result].” Williams v. Taylor,
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. —,
On appeal, we review “de novo a district court’s legal conclusions and mixed questions of law and fact and review[ ] its factual findings for clear error.” Moore v. Mitchell,
III.
Petitioner first argues that the trial court improperly admitted evidence as to the availability of prison furloughs in the future. Specifically, petitioner asserts 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 claim is procedurally defaulted.
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,
Nor has petitioner demonstrated сause and prejudice to excuse this default. In the district court, he asserted that his direct appeal counsel provided ineffective assistance in failing to raise this issue, and that this ineffective assistance amounted to cause and prejudice, but he does not do so in this court. Petitioner has therefore abandoned any argument regarding cause and prejudice. See Post v. Bradshaw,
IV.
Petitioner 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 incarcerаtion. Petitioner argues that this testimony “suggested] to the jury, ... [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.” In its post-conviction decision, the Kentucky Supreme Court found trial counsel’s introduction of this evidence was a strategic attemрt to show that petitioner had previously been such a model prisoner that he received two furloughs, and was not ineffective assistance of counsel. Wheeler,
The general standards governing a claim of ineffective assistance of counsel are set forth in Strickland v. Washington,
In the context of a death sentence, the question of prejudice turns on “whether*516 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,
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 term of incarceration. Cooper testified that petitioner 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 believed that none had been granted “for several years,” noting 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 a furlough given his two murder convictions. On cross-examination, the prosecutor also asked Rawlings about furloughs:
[PROSECUTOR]: Urn, 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.
*517 [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:
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 qualitiеs, 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. Wheeler 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 of a controlled substanсe (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 hаs been, at one time, responsible and 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, we conclude that petitioner is not entitled to relief on his ineffective-assistance-of-trial-counsel 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,
V.
Petitioner raises another ineffective assistance of counsel claim related to the furlough testimony. Specifically, petitioner argues that his counsel was constitutionally ineffective for failing to object when the prosecutor cross-examined Rawl-ings about the potential availability of future furloughs and when the prosecutor raised the furlough issue in closing arguments. We disagree.
Initially, as for his claim regarding his counsel’s failure to object at oral argument, this claim is procedurally defaulted. Petitioner did not raise this claim in state court, and consequently the Kentucky Supreme Court’s decision was silent on the issue. See Wheeler,
Nor is habeas relief appropriate on petitioner’s claim regarding his counsel’s failure to object during Rawlings’ cross-examination. This claim is nоt procedurally defaulted because petitioner raised it in his state post-conviction relief proceedings. However, petitioner cannot show deficient performance or prejudice arising from his trial counsel’s failure to object to the prosecution’s cross-examination of Rawlings. The Kentucky Supreme Court rejected the claim, observing that the information contained within Rawlings’ testimony was accurate and not misleading, and trial counsel was accordingly not ineffective for failing to object to it. Wheeler,
VI.
Petitioner also challenges the penalty-phase jury instructions, alleging that they violated Mills v. Maryland,
“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 of
Petitioner’s claim lacks merit. Essentially, petitioner’s argument is that because the trial court instructed the jurors that their verdict had to be unanimous, but was silent in instructing them about unanimity as applied to mitigating factors, the jurors must have inferred that their mitigating-factor determinations must also be unanimous. However, “failing to expressly state that mitigating factors need not be unanimously found does not improperly imply that mitigating factors must be unanimously found.” Williams v. Anderson,
VII.
Next, petitioner claims that several statements by the prosecutor during the penalty phase amounted to misconduct. Specifically, 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 allegedly offering his personal opinion about the case and petitioner’s decision to present mitigation testimony from his thirteen-year-old son. He alleges that these statements denied him a fundamentally fair trial in violation of his constitutional due process rights. We 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’; instead those comments must ‘so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process.’” Beuke v. Houk,
Petitioner is not entitled to relief on these claims. The wide latitude afforded to prosecutors was properly exercised here. The prosecution did not tell the jury not to consider Wheeler’s mitigation testimony, but rather questioned the weight to be given to it. To the extent that either comment approached the bounds of permissible closing argument, the Kentucky Supreme Court’s decision that they did not cross the line into a constitutional violation was not contrary to, or an unreasonable application of, clearly established federal law. Wheeler,
VIII.
Petitioner also claims that Kentucky’s proportionality review violates the Eighth Amеndment and denied him due process. Specifically, petitioner argues that Kentucky’s proportionality review is unconstitutional because it only incorporates cases in which the death sentence was imposed and thus results in an arbitrary application of death sentences. We disagree. As this court previously explained in Bowling v. Parker:
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. 2535 ,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 guаranteed by the Fourteenth Amendment.” Harris,465 U.S. at 41 [104 S.Ct. 871 ].
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,
*521 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 aggravating circumstances, not thе 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.
IX.
For the foregoing reasons, we conclude that petitioner is not entitled to habeas relief on any of his claims. We thereforе affirm the judgment of the district court.
Concurrence Opinion
CONCURRENCE
concurring.
I continue to believe that the Ohio acquittal-first jury instructions in this case and many others are highly confusing. It could easily lead one or more jurors to believe that they may not excuse the defendant from the death penalty and impose life imprisonment unless they first acquit the defendant when weighing aggravators and mitigators. I have set this argument out in detail several times, most recently in a majority opinion, Mitts v. Bagley,