Bowling v. Parker

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Bowling v. Parker No. 01-5832 ELECTRONIC CITATION: 2003 FED App. 0330P (6th Cir.)

File Name: 03a0330p.06 Appellee. ON BRIEF: Elizabeth R. Stovall, COMMONWEALTH OF KENTUCKY, DEPARTMENT OF PUBLIC ADVOCACY, LaGrange, Kentucky, Susan J.

UNITED STATES COURT OF APPEALS Balliet, DEPARTMENT OF PUBLIC ADVOCACY, Frankfort, Kentucky, for Appellant. Ian G. Sonego, OFFICE FOR THE SIXTH CIRCUIT OF THE ATTORNEY GENERAL, Frankfort, Kentucky, for _________________ Appellee.

THOMAS CLYDE BOWLING , X _________________ JR., -

OPINION

Petitioner-Appellant, - _________________ - No. 01-5832 -

v. > KAREN NELSON MOORE, Circuit Judge. Thomas Clyde , Bowling, Jr. (“Bowling”) appeals the district court’s - judgment denying both his petition for a writ of habeas corpus PHILLIP PARKER, Warden, - and his request for an evidentiary hearing in conjunction with Respondent-Appellee. - that petition. Bowling was convicted in state court of - murdering Tina and Eddie Earley and sentenced to death. His N conviction and death sentence were affirmed by Kentucky Appeal from the United States District Court courts on direct appeal and in post-conviction proceedings. for the Eastern District of Kentucky at Lexington. In the district court and now on appeal, Bowling raises No. 99-00236—Karl S. Forester, Chief District Judge. numerous claims of error. He contends that he was denied proper jury instructions, given ineffective assistance of Argued: December 10, 2002 counsel, deprived of an evidentiary hearing, denied a fair jury, subjected to numerous instances of prosecutorial misconduct, Decided and Filed: September 17, 2003 and given a sentence that was constitutionally disproportionate. For the reasons that follow, we AFFIRM Before: MOORE, GILMAN, and GIBBONS, Circuit the decision of the district court below, and deny Bowling’s Judges. petition for a writ of habeas corpus and his request for an evidentiary hearing.

_________________

I. BACKGROUND

COUNSEL

A. Factual Background

ARGUED: Elizabeth R. Stovall, COMMONWEALTH OF KENTUCKY, DEPARTMENT OF PUBLIC ADVOCACY, Early in the morning on April 9, 1990, Eddie and Tina LaGrange, Kentucky, for Appellant. Ian G. Sonego, OFFICE Earley were shot to death in their automobile in a parking lot OF THE ATTORNEY GENERAL, Frankfort, Kentucky, for outside a Lexington dry-cleaning establishment. Their two-

No. 01-5832 Bowling v. Parker 3 4 Bowling v. Parker No. 01-5832

year-old son Christopher was also shot, but not fatally. Police defendant to have eighteen peremptory challenges and the arriving at the scene found several witnesses offering varied government twelve, with twelve people remaining to be jurors observations of the shooter, collected several bullets from and two to be alternates. Later, however, the court stated that inside and outside the vehicle, and recovered debris consistent it was worried that the jury pool would be too small, so it with a car collision. After analyzing the debris, the police ended up qualifying forty-eight jurors, but then struck the four determined that the Earleys’ car must have been hit by a 1981 extra jurors. light blue Chevrolet Malibu. They also determined that a 1981 Malibu was registered in the county to Bowling. The On December 12, the guilt phase of the trial began. The police, however, did not seek to arrest Bowling at that point; Commonwealth produced twenty-five witnesses. There were instead they pursued several theories of who could have three eye-witnesses to the crime. The first, Larry Turner, murdered the Earleys. never saw the shooter; he went to the crime scene after hearing what he thought was a car backfiring. By the time he On the following day, April 10, 1990, police received a reached the car, the killer had already fled, and Turner telephone call from Bowling’s sister, Patricia Gentry. Gentry observed only the Earleys’ dented car, the dead bodies, and and her mother, Iva Lee Bowling, were worried because they the child crying. David Boyd testified that while stopped at had not seen Bowling, who was affectionately known as T.C., a stoplight, he looked back to see two cars in the parking lot since approximately 6:00 a.m. the preceding day. Watching and a man firing a gun into one of them. According to Boyd, the news reports, they realized that Bowling’s car matched the the shooter then stood and looked at the scene before driving description of the suspected killer’s car. Searching for off. Boyd described the car as being a light blue 1979 or Bowling, the two women drove to property owned by the 1980 Malibu and described the shooter as being six feet tall family in rural Powell County. There they discovered with a medium build, wearing a black jacket and a brimmed Bowling’s car. Bowling, however, was not there. When they hat. The third eyewitness, Norman Pullins, who had seen the returned to Gentry’s Knoxville home, they discovered events from a nursing home across the street, could not be Bowling asleep on the couch. After consulting with their found by either party. By agreement of the parties, the police minister, they called the police, who came and picked played their audiotape of an interview with Pullins that took Bowling up without incident. The police then recovered place the morning of the shootings. The police next testified Bowling’s car from the Powell County property, where they regarding the crime scene and presented to the jury also discovered a buried .357-magnum revolver. photographs and a videotape depicting the scene in considerable detail.

Bowling was represented at trial by three attorneys: Baldani, Summers, and Richardson. Prior to trial, these The Commonwealth then focused on the evidence attorneys had Bowling undergo a neurological and discovered at the Bowling property in Powell County. One psychological evaluation by Dr. Donald Beal. officer testified that he found Bowling’s Malibu in the thicket, and an orange jacket, an orange Little Caesar’s T-shirt from B. The Trial Bowling’s workplace, and a black Rangers’ hat in a small shed. The officer also found an unused outhouse on the On December 10, 1990, the trial began. The court’s stated property into which several empty alcohol bottles had been goal in voir dire was to qualify forty-four of the ninety-nine thrown. Another officer testified to finding the gun on the pooled jurors. Qualifying forty-four jurors would allow the property. Lastly, an officer testified that he retrieved

No. 01-5832 Bowling v. Parker 5 6 Bowling v. Parker No. 01-5832

Bowling’s personal effects from his sister’s house, including worked. Bowling had also shown to his family the gun that a black jacket. he had recently purchased from Brackett.

The state then introduced expert testimony. A forensic The defense presented no witnesses, choosing not to pathologist testified that the Earleys had no chance of present the expert testimony of Dr. Beal. Bowling’s counsel surviving the injuries that they sustained. A police asked for time to inform Bowling again of his right to testify, automotive expert testified that the glass, plastic, and chrome but after consulting with Bowling, counsel announced that debris from the crime scene matched Bowling’s car. Another Bowling would not testify.1 The defense rested on their expert testified that paint from the Earleys’ car had rubbed off cross-examinations of the witnesses. The defense had (because of the accident) onto Bowling’s car, and that paint brought out Bowling’s erratic behavior during the weekend from Bowling’s car had also rubbed off on the Earleys’ car. before the shootings. Brackett admitted, while he was being The expert unambiguously stated that tests on the paint cross-examined, that he traded in handguns without keeping samples demonstrated that it was Bowling’s car that had records and had poor memory and hearing. David Boyd rammed into the Earleys’ vehicle. A state ballistics expert admitted that he may have told a police detective that the identified the recovered gun as a Smith and Wesson .357 and shooter had long brown hair, a dark complexion, and possibly stated that the bullets shot from it would have identical a mustache — none of which describe Bowling. Though markings to those recovered from the crime scene. On cross- defense counsel did not gain much ground from the expert examination, however, he admitted that there may be millions witnesses, the Commonwealth’s ballistics expert did concede of guns that would have left marks like those on the bullets that the .357-magnum was one of perhaps millions of guns found at the crime scene. that could have fired the bullets that killed the Earleys.

Defense counsel also established that none of Bowling’s The Commonwealth also presented testimony from Clay possessions, including his car, had any blood on them, that Brackett that he had sold a similar-looking Smith and Wesson there were no fingerprints found on the gun or at the crime .357 to Bowling a few days before the killings. There were scene, and that the only lead residue on Bowling’s belongings also two witnesses, Jack Mullins and Jack Strange, who was inside the left pocket of his jacket and could have come placed Bowling on the road in front of the property in Powell from a gun or from bullets. County the evening of the murders.

The defense asked for jury instructions on extreme The Commonwealth then called Bowling’s family to testify emotional disturbance, circumstantial evidence, and reckless to the events leading up to the telephone call that they made homicide. The trial court denied these instructions. The jury to the police. Bowling’s family testified that Bowling had found Bowling guilty of intentionally murdering Tina and been seriously depressed in the weeks before the shootings. Eddie Earley and assaulting their son Christopher. Bowling was also obsessed with death. During a drive with his mother a few days before the shooting, Bowling told her that his time had run out and that she should look for him at the family property in Powell County if he disappeared. During this drive, Bowling had stopped for approximately 1 thirty minutes in a parking lot, behind the nursing home In an interview with a mental health worker held while Bowling was property across from the dry-cleaning place where the Earleys in jail, Bo wling claimed that he “ha d no recollection o f the day of the crime.” J.A. at 54 (Pet. Br. in Dist. Ct.).

No. 01-5832 Bowling v. Parker 7 8 Bowling v. Parker No. 01-5832

Before the penalty phase began, Bowling, his defense C. Post-Trial Case History counsel, and the prosecution met because Bowling had filed a pro se motion to discharge his attorneys. Bowling stated Bowling’s conviction and sentences underwent mandatory that he was angry with his attorneys because they had review by the Kentucky Supreme Court pursuant to Kentucky essentially presented no defense on his behalf. Bowling Revised Code § 532.075. The Kentucky Supreme Court claimed that he did not have ample opportunity to meet with affirmed his conviction and sentence on September 30, 1993. his attorneys; Bowling told the state court judge that his Bowling v. Commonwealth, 873 S.W.2d 175 (Ky. 1993) attorneys had not spent more than a total of one hour with him [“Bowling I”]. Two justices dissented. The dissenting throughout the litigation. Bowling said that there were many justices argued that Bowling should have been given an witnesses who could have been called to testify — although, instruction on extreme emotional disturbance in the guilt and when questioned, he could not give the names of any such penalty phases, id. at 182-85 (Leibson, J., dissenting), and one witnesses or list any particular act that his attorneys failed to justice also would have reversed the conviction because of do. Bowling stressed, however, that he had no time to tell his prosecutorial misconduct, id. at 185-87 (Burke, S.J., attorneys of witnesses who might have been called, because dissenting). his attorneys had not met with him. Bowling said that he felt that his attorneys did not take his case seriously, and that they Bowling then began his post-conviction proceedings in a once remarked to another person in front of Bowling that they state circuit court. Here, however, Bowling made a did not have a defense. The district court denied his motion potentially significant procedural error. On February 28, to discharge his attorneys. 1995, he filed a notice of intent to file a motion for post-

conviction relief under Kentucky Rule of Criminal Procedure The penalty phase then began. The defense called six (known as “RCr”) 11.42. However, he did not file the motion witnesses to testify. There were three non-family members: itself at that time. Governor Patton set Bowling’s execution a former co-worker of Bowling and two jail employees, all of date for February 1, 1996. Eventually, the Supreme Court of whom spoke kindly of Bowling. The defense also called Kentucky determined that Bowling’s execution could not be Bowling’s mother, his sister, and his son, who discussed their stayed without the actual motion being filed. Bowling v. love for Bowling, his mental and emotional deterioration in Commonwealth, 926 S.W.2d 667, 669 (Ky. 1996). So on the weeks before the killings, his failed marriage, and his January 26, 1996, Bowling’s counsel filed a rushed but having only a ninth-grade education and being of low mental formal RCr 11.42 motion, and asked for more time to file an ability. Bowling did not testify. amended or supplemental motion. On February 8, 1996, the state circuit court granted the request, and gave Bowling 120 The trial court denied Bowling’s request for specific additional days running from the initial deadline, January 26, mitigating instructions on extreme emotional disturbance, 1996. On May 28, 1996, a supplemental RCr motion was mental illness, intoxication, and model jail conduct, but gave filed, but it was not verified as required by Kentucky law. On a general mitigating instruction. The trial court also June 6, 1996, clearly after the 120-day period, Bowling filed instructed the jurors on one statutory aggravating factor, that the revised version as a verified supplemental motion. On of intentionally causing multiple deaths. The jury found that October 1, 1996, the circuit court ordered both versions of the the aggravating factor applied and recommended two death supplemental motion stricken, the first for being unverified sentences. The trial judge sentenced Bowling to death. and the second for being untimely, which ostensibly prevented those claims from being addressed. The state

No. 01-5832 Bowling v. Parker 9 10 Bowling v. Parker No. 01-5832

circuit court recognized its power to allow amendment for 244 F.3d 512, 515 (6th Cir.), cert. denied, 534 U.S. 828 equitable reasons but declined to exercise that power. The (2001). As Bowling’s habeas petition was filed on circuit court found against Bowling on the merits on all the August 12, 1999, it is governed by the Antiterrorism and remaining claims. Effective Death Penalty Act of 1996 (“AEDPA”). Pursuant to AEDPA, relief is available with respect to claims The Kentucky Supreme Court unanimously affirmed the adjudicated on the merits in state court only if the circuit court’s decision. Bowling v. Commonwealth, 981 adjudication: S.W.2d 545 (Ky. 1998) [“Bowling II”]. The Kentucky Supreme Court dismissed the claims Bowling raised in his (1) resulted in a decision that was contrary to, or initial RCr petition as not having merit. The Kentucky involved an unreasonable application of, clearly Supreme Court then addressed the claims raised in Bowling’s established Federal law, as determined by the struck supplemental motions. The Kentucky Supreme Court Supreme Court of the United States; or prefaced its analysis of Bowling’s claims with the following statement: (2) resulted in a decision that was based on an unreasonable determination of the facts in light of Appellant presents a number of other issues in his the evidence presented in the State court proceeding. supplemental RCr 11.42 motion. Notwithstanding that his supplemental motion was struck by the trial court, in 28 U.S.C. § 2254(d)(1)-(2). Moreover, the findings of a state the interest of judicial economy we will review the seven court are presumed to be correct and can only be contravened additional claims of ineffective assistance of counsel if Bowling can show by clear and convincing evidence that raised in the motion. they are erroneous. See 28 U.S.C. § 2254(e)(1). The presumption of correctness also attaches to the factual Id. at 551. The Kentucky Supreme Court then denied findings of a state appellate court based on the state trial Bowling’s claims on the merits. record. See Sumner v. Mata, 449 U.S. 539, 546-47 (1981).

Bowling filed a motion for a writ of habeas corpus with the B. Procedural Default district court on August 12, 1999. Bowling moved for an evidentiary hearing with the district court on some issues, but Before addressing the merits of Bowling’s appeal, we must this motion was denied. Ultimately, the district court denied address the state’s contention that some of Bowling’s claims the writ. Bowling v. Parker, 138 F. Supp. 2d 821 (E.D. Ky. are procedurally defaulted. The government argues that 2001) [“Bowling III”]. The district court granted a certificate because Bowling’s supplemental RCr motions were struck by of appealability as to all issues. the trial court, the claims that appear only therein are defaulted and cannot be revived in a federal habeas corpus II. ANALYSIS action.

A. The Legal Standards of AEDPA We reject the state’s contention that these claims have been procedurally defaulted. It is clear that if a petitioner defaults This court reviews de novo the legal conclusions of a his federal claims in state court by failing to comply with an district court denying habeas relief. Palazzolo v. Gorcyca, adequate and independent state procedural rule, federal

No. 01-5832 Bowling v. Parker 11 12 Bowling v. Parker No. 01-5832

habeas relief is barred unless the petitioner can show cause for supplemental motion. After noting that the claims were the default and actual prejudice, or a resultant fundamental raised only in the struck supplemental pleadings, the miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, Kentucky Supreme Court went on to consider the merits of 750 (1991). This court recently spoke to how courts are to those claims, stating, “Notwithstanding that his supplemental examine an allegation of procedural default: motion was struck by the trial court, in the interest of judicial economy we will review the seven additional claims of First, the court must determine whether there is such a ineffective assistance of counsel raised in the motion.” procedural rule that is applicable to the claim at issue and Bowling II, 981 S.W.2d at 551. whether the petitioner did, in fact, fail to follow it. Second, the court must decide whether the state courts There are two reasonable interpretations to which this actually enforced its procedural sanction. Third, the statement is susceptible. The Kentucky Supreme Court may court must decide whether the state’s procedural have been relying on the procedural default. Its dismissal of forfeiture is an “adequate and independent” ground on Bowling’s claims on the merits would then be considered an which the state can rely to foreclose review of a federal alternative holding. In such a situation, we would consider constitutional claim. . . . And, fourth, the petitioner must the claims in the struck motion procedurally defaulted. See demonstrate . . . that there was “cause” for him to neglect Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) (stating that “a the procedural rule and that he was actually prejudiced state court need not fear reaching the merits of a federal claim by the alleged constitutional error. in an alternative holding”); Coe v. Bell, 161 F.3d 320, 330 (6th Cir. 1998). However, the Kentucky Supreme Court may Greer v. Mitchell, 264 F.3d 663, 673 (6th Cir. 2001) (citations have well been using the word “notwithstanding” to ignore omitted) (citing, inter alia, Maupin v. Smith, 785 F.2d 135, the issue of possible procedural default and consider the 138 (6th Cir. 1986)), cert. denied, 535 U.S. 940 (2002). At claims on the merits. In such a case, Bowling’s claims would issue here is the second prong of the Maupin test; Bowling not be defaulted because the state court would not have been questions whether the Kentucky Supreme Court actually relying on the procedural bar in its disposition of the case. enforced its procedural sanction. In this regard, the Supreme Court has stated that “[t]he mere existence of a basis for a We find both interpretations eminently plausible. The use state procedural bar does not deprive [federal courts] of of the word “notwithstanding” could suggest either that the jurisdiction; the state court must actually have relied on the Kentucky Supreme Court was enforcing the procedural procedural bar as an independent basis for its disposition of default or that it was waiving it. Moreover, the possibility the case.” Caldwell v. Mississippi, 472 U.S. 320, 327 (1985); that the Kentucky Supreme Court was in fact waiving the see also Coleman, 501 U.S. at 735 (requiring that the last default is amplified by the fact that it went on to consider state court rendering a reasoned judgment on the matter Bowling’s claims on the merits. See Harris, 489 U.S. at 266 “clearly and expressly” state that its judgment rests on such n.13 (noting that “[w]hile it perhaps could be argued that this a procedural bar for the doctrine of procedural default to statement would have sufficed had the state court never apply). reached the federal claim,” the fact that “the state court clearly went on to reject the federal claim on the merits”

The language used by the Kentucky Supreme Court in its makes it less clear that the state court actually relied on the opinion reveals that it did not clearly rely on Bowling’s procedural bar). Ultimately, the fact that both interpretations procedural default to dismiss the claims raised in his are sensible settles this issue in Bowling’s favor, for there

No. 01-5832 Bowling v. Parker 13 14 Bowling v. Parker No. 01-5832

must be unambiguous state-court reliance on a procedural The Supreme Court has held that the failure to give a default for it to block our review. See Gall v. Parker, 231 lesser-included-offense instruction can violate due process. F.3d 265, 321 (6th Cir. 2000), cert. denied, 533 U.S. 941 See Beck v. Alabama, 447 U.S. 625 (1980). In Beck, the (2001). defendant and his accomplice broke into the house of an eighty-year-old man and tied him up. According to Beck, the We therefore proceed to the merits of Bowling’s claims. accomplice struck the man and killed him. Beck consistently His contentions of error fall into six general categories. He maintained that he did not kill the victim and that he had claims that he was denied proper jury instructions, his counsel never intended for the murder to occur. The state charged was constitutionally ineffective, he was improperly denied an him with “robbery-intentional killing,” a capital crime. Id. at evidentiary hearing, the jury in his case was constitutionally 628. Pursuant to the applicable state statute, the trial judge invalid, the prosecutors acted inappropriately towards him at was prohibited from instructing the jury on the lessertrial , and his death sentence was constitutionally included offense of “felony-murder,” a non-capital crime. disproportionate. The jury convicted Beck of intentional murder, and he was sentenced to death. The Supreme Court held that it is a denial C. Denial of Proper Jury Instructions of due process for a jury to be deprived of the opportunity to consider the lesser-included offense of felony-murder when Bowling’s first claim for relief is his claim that he was “the unavailability of a lesser included offense instruction denied proper jury instructions in both the guilt and penalty enhances the risk of an unwarranted conviction.” Id. at 638. phases of his trial. Although Bowling’s claim that he was entitled in the guilt phase to a jury instruction on extreme In this case, manslaughter is a lesser-included offense of emotional disturbance (“EED”) is the strongest claim he murder under Kentucky law. See Bray v. Commonwealth, 68 brings in his habeas petition, we find it ultimately S.W.3d 375, 383 (Ky. 2002) (analyzing whether a defendant unpersuasive. We therefore dismiss Bowling’s claim that he should have received an instruction on the “lesser included was denied proper jury instructions. offense of first degree manslaughter” where he was convicted of murder, but claimed that he was extremely emotionally 1. Instructions in the Guilt Phase disturbed at the time of the homicide); see also KY . REV .

CODE ANN . § 507.030(b) (defining manslaughter as a lesser-

Bowling claims that the trial court improperly failed to give included offense of murder). the jury a lesser-included-offense instruction in the guilt phase. Bowling contends that the jury should have been Nonetheless, while due process can require an instruction given an instruction on extreme emotional disturbance; if the on lesser offenses that are necessarily included in the greater jury then had found extreme emotional disturbance, it would offense, due process does not require an instruction on a have convicted Bowling only of manslaughter (rather than lesser-included offense if the evidence does not support such murder). See KY . REV . CODE ANN . § 507.030(b) (defining an instruction. Hopper v. Evans, 456 U.S. 605, 611 (1982). manslaughter as an intentional killing “under circumstances Instead, “a Beck instruction is only required when ‘there was which do not constitute murder because [the defendant] acts evidence which, if believed, could reasonably have led to a under the influence of extreme emotional disturbance”). verdict of guilt of a lesser offense,’ but not the greater.”

Campbell v. Coyle, 260 F.3d 531, 541 (6th Cir. 2001) (quoting Hopper, 456 U.S. at 610), cert. denied, 535 U.S. 975

No. 01-5832 Bowling v. Parker 15 16 Bowling v. Parker No. 01-5832

(2002). This constitutional requirement is virtually identical viewpoint of a person in the defendant’s situation under to the Kentucky requirement that an instruction be given circumstances as defendant believed them to be. when “‘a juror might entertain reasonable doubt as to the defendant’s guilt of the greater offense, and yet believe McClellan v. Commonwealth, 715 S.W.2d 464, 468-69 (Ky. beyond reasonable doubt that the defendant is guilty of the 1986). Kentucky courts have explained that, to show EED, lesser offense.’” Jacobs v. Commonwealth, 58 S.W.3d 435, there must be a triggering event — a “sudden and 446 (Ky. 2001) (citation omitted). The Kentucky Supreme uninterrupted” event that “triggers the explosion of violence Court determined that the evidence at trial would not permit on the part of the criminal defendant.” Foster v. a rational jury to find extreme emotional disturbance. See Commonwealth, 827 S.W.2d 670, 678 (Ky. 1991) (holding Bowling I, 873 S.W.2d at 179 (discussing this claim). Given that a woman was not entitled to an EED instruction after she the deference that we are required to give to the Kentucky murdered five individuals without a recent aggravating Supreme Court’s analysis of this question, we ask only incident, despite the fact that the woman had suffered whether the Kentucky Supreme Court was unreasonable in its significant physical and emotional harm as a child and abused conclusion that the evidence at trial would not permit a drugs and alcohol). As a result, “extreme emotional rational jury to find extreme emotional disturbance. See disturbance is not established by evidence of insanity or Campbell, 260 F.3d at 543 (noting that the question is mental illness, but require [sic] a showing of some dramatic “whether the state court’s application of [the Beck] rule to event which creates a temporary emotional disturbance as these facts was objectively unreasonable”). opposed to a more generalized mental derangement.”

Stanford v. Commonwealth, 793 S.W.2d 112, 115 (Ky. 1990).

To answer this question, however, we must discern the meaning of the term, “extreme emotional disturbance.” This Bowling claims that, under the facts of his case and the is a question of state law. See Bennett v. Scroggy, 793 F.2d definition of EED used above, an EED instruction was 772, 778 (6th Cir. 1986) (“A due process clause claim that required. It is undisputed that Bowling’s car crashed into the one is entitled to instructions on a lesser included offense can Earleys’ car in the Earley Bird Cleaners’ parking lot and that be resolved only by determining what the elements of those the front right-hand side of Bowling’s car impacted the offenses are. Hence, the reviewing court must look first to the driver’s side of the Earleys’ car. Bowling argues that this state’s law.”). Kentucky law, at the time of Bowling’s case, accident was a triggering event that enraged Bowling, had explained EED as follows: overthrew his judgment, and caused him to get out of his car and kill the Earleys. This theory, Bowling argues, would Extreme emotional disturbance is a temporary state of explain the otherwise motiveless killing of the Earleys and mind so enraged, inflamed, or disturbed as to overcome would also explain why Bowling did not simply get out of his one’s judgment, and to cause one to act uncontrollably car and shoot the Earleys rather than damaging his own car from the impelling force of the extreme emotional first.2 disturbance rather than from evil or malicious purposes. It is not a mental disease in itself, and an enraged, inflamed, or disturbed emotional state does not constitute an extreme emotional disturbance unless there is a 2 reasonable explanation or excuse therefor, the W e note p arenthetically that this argument was adopted by two justices of the Kentucky Supreme Court on Bowling’s direct ap peal.

reasonableness of which is to be determined from the Bowling I, 873 S.W .2d at 182-85 (Leibson, J., dissenting).

No. 01-5832 Bowling v. Parker 17 18 Bowling v. Parker No. 01-5832

Bowling acknowledges that he has submitted no evidence only impacted in the front right-hand side, it is clear that supporting his argument that an EED instruction was Bowling would have been able to see the impending collision. necessary.3 He argues merely that we should infer from the This suggests that Bowling either intentionally caused the very fact that a car accident preceded the shootings that the accident or at least had knowledge that a collision was car accident must have triggered an uncontrollable rage that impending before it happened. caused the shootings.

These facts make Bowling’s claim of EED grossly The facts of this case do not support such an inference. implausible. Bowling has introduced no evidence, such as Bowling’s accident involved a parked car in a parking lot far that of a accident-reconstruction specialist, to support his away from the street. It resulted in no physical injury to claim. He simply asks us to infer that the accident so enraged Bowling and only minor damage to both cars. Bowling’s car him as to overcome his judgment and cause him to act remained drivable. In fact, his car only suffered light damage uncontrollably from the accident’s impelling force. Even if to its front right-hand side; according to expert testimony and this were the case, however, the extreme emotional photographic evidence, only the right front fender and its disturbance inquiry is not merely a subjective one. It is also, parking light assembly were damaged. As Bowling’s car was in part, an objective one. Therefore, even if Bowling were to show that he was emotionally enraged within the meaning of Kentucky law, Bowling would still not be able to show a 3 Under current Kentucky law, Bowling has the burden of proving “reasonable explanation or excuse” for his rage. McClellan, EED; the governm ent is not charged with proving its absence. See 715 S.W.2d at 469. We must agree with the Kentucky Wellman v. Comm onw ealth, 694 S.W.2d 696, 697 (Ky. 1985). Bo wling Supreme Court that this type of minor car accident in itself argues in his brief that the government should have had the burden of does not create a reasonable explanation or excuse for a proving an absence of EED at trial. Bo wling cites a recent Sixth C ircuit double homicide. case that granted habeas relief on such grounds. See Ga ll v Parker, 231 F.3d 265, 288 -91 (6th Cir. 2000) (holding that the Kentucky Supreme Court erroneously put the burden on the defendant to show EED when it Context also suggests that it was not the accident that was actually the government’s obligation to prove a lack of EED ), cert. caused the shootings. Testimony at trial established that denied, 533 U .S. 941 (2001 ). The salient difference between this case and Bowling was seriously depressed and under the influence of Ga ll, however, is that the trial and appeal in Ga ll took place in 198 0 while alcohol in the days preceding the shooting. Bowling was the facts of this case occurred in 1 991 . In the interv ening p eriod — in obsessed with death, made frequent morbid statements like 1985, more specifically — the Kentucky Supreme Court explicitly shifted the burd en of p roof on this issue to the defendant. See Wellman, 694 “my time has run out,” and told his mother, if he disappeared, S.W.2d at 697 (overruling “those portions of [several cases] which declare to look for him on family property in Powell County. J.A. at that the absence of extreme emotional distress is an essential element of 4558 (Testimony of Iva Lee Bowling). Bowling’s state of the crime of murder and require the Commonwealth to prove such mind might also be reflected in the fact that he purchased a absence”). As a result, under Wellman, it was proper for the trial co urt to gun a few days before the shootings and carried it with him put the burden of proving EED on Bow ling.

Bowling argues that the Wellman decision violated due process and the morning of the shootings. Bowling suggests that these separation-of-powers principles by retro actively enlarging the scope of a comments and actions support his claim that he was criminal statute. We, however, did not find the retroactivity argument extremely emotionally disturbed at the time of the shootings. persuasive even in Wellman’s own habeas petition, Wellman v. Rees, No. In reality, however, these comments and actions undercut his 86-5988, 1987 WL 38211 (6th C ir. June 1, 19 87), cert. denied, 484 U.S. claim — for in order for Bowling to be entitled to an EED 968 (1987), and we do not find it persuasive now. W e therefore dism iss this contention of error.

instruction, Kentucky law requires that the accident itself be

No. 01-5832 Bowling v. Parker 19 20 Bowling v. Parker No. 01-5832

the “dramatic event which creates a temporary emotional California, 494 U.S. 370 (1990), where the Court held that a disturbance as opposed to a more generalized mental catch-all instruction on mitigation was constitutionally derangement.” Stanford, 793 S.W.2d at 115. All of sufficient unless the instructions as a whole created “a Bowling’s evidence suggests general mental illness, not a reasonable likelihood that the jury has applied the challenged temporary and extreme emotional disturbance stemming from instruction in a way that prevents the consideration of the accident. See McClellan, 715 S.W.2d at 468 (noting that constitutionally relevant evidence.” Id. at 380; see also “the condition must be a temporary disturbance of the Buchanan v. Angelone, 522 U.S. 269, 276 (1998). An emotions as opposed to mental derangement per se”). As a examination of the actual jury instructions reveals that there result, we cannot say that the Kentucky Supreme Court’s was no realistic chance of confusion. decision that an EED instruction was not necessary was objectively unreasonable.4 The jury instructions correctly explain that the defendant is presumed to be innocent of the aggravating circumstance, and 2. Instructions in the Penalty Phase that the aggravating circumstance must be proved by the prosecution beyond a reasonable doubt. For each crime, the Bowling’s next claim is that he should have been granted instructions explain that the jury need not impose the death a specific mitigating instruction on EED, mental illness, and penalty simply because the aggravating circumstance is intoxication in the penalty phase. Bowling complains that he proved beyond a reasonable doubt. They explain that the was only given a general instruction on mitigation, which death penalty can be imposed despite the existence of a allowed the jury to consider any evidence they found mitigating circumstance, but only if the aggravating mitigating, but did not specifically instruct them to take into circumstances outweigh the mitigating ones. Most account evidence of EED, mental illness, or intoxication. On importantly, the jury instructions explicitly call upon the jury appeal, the Kentucky Supreme Court upheld the general to consider the mitigating evidence generally: mitigating instruction, stating that Bowling was not constitutionally entitled to anything more. Bowling I, 873 [Y]ou shall consider such mitigating or extenuating facts S.W.2d at 180. and circumstances as have been presented to you in the evidence including, but not limited to, such of the The Kentucky Supreme Court is correct. The United States following as you may believe from the evidence; (a) that Supreme Court rejected Bowling’s claim in Boyde v. the Defendant has no significant history of prior criminal activity. You shall consider any other facts and circumstances which you consider to be mitigating or 4 Bowling also makes a claim that the denial of an EED instruction in extenuating even though they are not listed in this the guilt phase was improper under state law. Normally, habeas instruction. petitioners cannot o btain relief in federal court on the basis that the state courts did not follow state law; there generally must be some federal J.A. at 5106-07 (italics added). The instruction clearly constitutional error. See Estelle v. McG uire, 502 U.S. 62, 67-68 (199 1); Hutchison v. Bell, 303 F.3d 720, 731 (6th Cir. 2002) (“State-law trial allows, and in fact commands, the jurors to consider evidence errors will not warrant habeas relief unless the ‘error rises to the level of that they find mitigating. There is no reason to assume that depriving the defendant of fundamental fairness in the trial process.’”) the jury did not consider the evidence of EED, mental illness, (citation omitted). To the extent that this violation of state law was so and intoxication as potential mitigating evidence. Cf. Payton flagrant as to amount to a denial of due process, we have already v. Woodford, 299 F.3d 815, 818-19 (9th Cir. 2002) (granting considered the claim and rejected it in our Beck discussion above.

No. 01-5832 Bowling v. Parker 21 22 Bowling v. Parker No. 01-5832

habeas relief under AEDPA to a defendant whose evidence of a potentially exculpatory witness, and (6) to impeach a post-crime conversion and good works was likely not effectively the government witnesses. considered by the jury because the catch-all provision of the instructions only allowed the jury to consider circumstances In order to succeed on any of these claims of ineffective that “extenuate[d] the gravity of the crime”). The mere fact assistance of counsel, Bowling must show two things. First, that the jury was not given a particularized instruction on he must show that his counsel’s performance was EED or mental illness, as opposed to a more generalized one, constitutionally deficient, and second, he must show that he is simply not a constitutional wrong.5 was prejudiced by his counsel’s errors. Id. at 687.

D. Ineffective Assistance of Counsel In order to prove his counsel constitutionally deficient, Bowling must show that his counsel’s performance fell below Bowling’s next set of claims for relief arises from his an objective standard of reasonableness under prevailing allegation that he was provided with ineffective counsel under professional norms. Id. at 687-88. Bowling must overcome Strickland v. Washington, 466 U.S. 668 (1984). Bowling the “presumption that, under the circumstances, the alleges that his counsel was constitutionally defective in six challenged action might be considered sound trial strategy.” principal ways. Specifically, he asserts that counsel failed Bell v. Cone, 535 U.S. 685, 698 (2002) (quotations omitted). (1) to investigate the victims’ drug activities, which would Having proved his counsel deficient, Bowling must then show have led them to another viable suspect, Donald Adams, that “there is a reasonable probability that, but for counsel’s (2) to consult with Bowling before and during trial, (3) to unprofessional errors, the result of the proceeding would have present evidence that would have justified an instruction on been different.” Strickland, 466 U.S. at 694. A “reasonable EED and mitigation evidence more generally, (4) to prepare probability” in this context is a “probability sufficient to adequately before trial because of a pending criminal undermine confidence in the outcome.” Id.6 indictment against one of Bowling’s attorneys, (5) to contact 1. Failing to Investigate the Victims 5 Bowling’s first claim of ineffective assistance, which was In addition to arguing that the denial of a specific instruction in the penalty phase violates federal law, Bowling also claims that this denial discussed extensively at oral argument though not given much violated a state statute that requires judges to give particularized attention in the parties’ appellate briefs, is that his counsel did instructions on mitigating factors. See K Y . R EV . C O D E . A N N . not properly investigate the Earleys’ involvement with drugs. § 532.025 (2) (“In all cases of offenses for which the death penalty may be authorized, the judge shall consid er, or he shall include in his If his counsel had performed a proper investigation, Bowling instructions to the jury for it to consider, any mitigating circumstances or argues, they would have discovered that Eddie Earley had aggravating circumstances o therwise authorized by law and any of the informed Lexington police of the drug activities of Donald following statutory aggravating or mitigating circumstances which may Adams and that Donald Adams was the one who presumably be supported by the evidence.”). Bowling argues that he did present shot the Earleys. sufficient evidence to merit a specific instruction on these facts und er state law. W hether or not we would agree with him on this point, Bowling ignores the fact that this co urt gene rally does not review alleged violations of state law in federal habeas proceedings. See Estelle, 502 U.S. at 67-68. 6 W e merely hold here that the state trial court’s determination that Bowling W e note at the outset that the Kentucky Supreme Court addressed was not entitled to instructions on these factors is not so fundam entally and rejected all of Bowling’s claims of ineffective assistance that we unfair as to violate due p rocess. consider here. Bowling II, 981 S.W.2d at 549-52.

No. 01-5832 Bowling v. Parker 23 24 Bowling v. Parker No. 01-5832

To support his claim, Bowling points to a memorandum deficient for not investigating this theory. In light of the written by his attorneys roughly six weeks before trial. This tenuous connection between Adams and the murder, memorandum lists twenty-seven tasks that counsel said they counsel’s decision not to investigate further does not seem needed to accomplish before trial. One of these, task number unreasonable. In fact, the memorandum that Bowling uses to twenty one, is an interview with Larry Walsh, who was the show that his attorneys were deficient seems to support the chief of Lexington police at the time. The memorandum opposite conclusion. The memorandum reveals a states that they should interview Walsh because he was methodically organized defense team, and the mere fact that “friends with the victims” and because Eddie Earley Bowling’s attorneys failed to accomplish all of the tasks they “provided information concerning Donald Adam[’s] drug set out for themselves may be an indication of their early activity.” J.A. at 1237. We note that task number twenty is ambitiousness rather than their later negligence. counsel’s statement that they should interview Donald Adams, who “supposedly had [an] affair with Tina, and sold Moreover, Bowling has put forth no evidence of prejudice. dope to Eddie.” J.A. at 1237. Bowling has not shown that anything inculpatory about Adams would have come out of an interview with the police Counsel never interviewed Walsh. Bowling claims that if chief. Bowling suggests that his attorneys would have at least Walsh had been interviewed, Bowling’s counsel would have discovered that Eddie Earley had previously informed on found that Donald Adams was the one who killed the Earleys, Donald Adams and that Donald Adams may have slept with or, at the very least, Bowling’s counsel would have been able Tina Earley. Bowling’s attorneys, however, already to create reasonable doubt by arguing that Adams committed suspected this. Bowling has put forth no evidence going the murders. beyond these facts; Bowling has not shown that Donald Adams was in any way actually connected to the Earleys’

We must note that Bowling’s theory that Donald Adams murders. Bowling has therefore not shown that the Kentucky was involved in the murders is farfetched. Though Bowling Supreme Court’s decision denying relief on this claim was never really explains how Donald Adams could have been the unreasonable. Bowling II, 981 S.W.2d at 550. murderer under the facts adduced in the case, he seems to intimate that Adams must have stolen Bowling’s car, 2. Failing to Consult with Bowling committed the murders, and then deposited Bowling’s car on the Bowling family’s property. Among the more obvious As explained in Part I.B, supra, Bowling first claimed problems with Bowling’s theory is the fact that Bowling does ineffective assistance in the trial itself. Between the guilt and not explain why Adams would choose to frame Bowling for penalty phases, Bowling sought to have his counsel removed the murders, how Adams stole Bowling’s car, how Adams because Bowling felt they were unprepared. Bowling claimed knew where Bowling’s family property in rural Powell that he did not have ample chance to explain the facts of the County was located, and — most importantly — how Jack case to his attorneys because he had “not spent an hour, total, Mullins and Jack Strange could have both identified Bowling with any of them from day one.” J.A. at 4921 (Trial Tr.). near the Powell County property if he had not been there. The few times that they did talk, Bowling claims, he was interrupted and ignored. While Bowling’s attorneys did not The implausibility of Bowling’s thesis that Donald Adams put on a single witness, Bowling claimed that there were was in fact the killer makes it virtually impossible for numerous witnesses who could have been called. Bowling to prove that his counsel was constitutionally

No. 01-5832 Bowling v. Parker 25 26 Bowling v. Parker No. 01-5832

The Kentucky Supreme Court quickly rejected this claim Conviction Relief) (italics added). Moreover, the one-hour on direct appeal, stating that “[t]he trial judge determined that figure seems implausible, given that Bowling’s trial lawyers the trial strategy used by Bowling’s counsel had a better could not have found the witnesses who testified at the chance of success than any of which the trial judge could penalty phase (which included Bowling’s coworkers and jail think in light of the strong evidence of guilt presented by the supervisors) or discovered the rest of their submitted evidence prosecution.” Bowling I, 873 S.W.2d at 180. without Bowling’s aid. It also seems strange, for example, that Bowling’s lawyers would have Bowling attend a This claim of ineffective assistance of counsel fails. First, psychological examination with a psychologist for nine hours it is not clear that Bowling has shown constitutional and meet with him for only one. deficiency. The Supreme Court has emphasized that the focus of the Sixth Amendment is not on “the accused’s Even, however, if the one-hour total consultation figure is relationship with his lawyer,” but on “the adversarial accurate and Bowling has made out deficiency, Bowling has process.” Wheat v. United States, 486 U.S. 153, 159 (1988) not shown the prejudice that his Strickland argument requires. (quotation omitted); see also Dick v. Scroggy, 882 F.2d 192, As noted by the federal district court, Bowling has not shown 197 (6th Cir. 1989) (holding, in a non-capital case, that how additional time spent with counsel could have altered the Strickland was not violated when the defendant’s attorney did outcome of his trial. Bowling claimed in the colloquy with not interview the defendant until the night before trial, and the state trial judge that numerous witnesses could have been then for only thirty to forty-five minutes). Yet, the one-hour called, but Bowling never specifically named anyone and total consultation time that Bowling cites is alarming, and stated in front of the trial judge that he would not testify courts have granted habeas relief under such conditions. See, himself. Bowling has not even alleged factually how e.g., Harris By and Through Ramseyer v. Wood, 64 F.3d additional time with his counsel would have aided his case or 1432, 1436, 1438-39 (9th Cir. 1995) (holding that Strickland helped counsel obtain names of people to testify on his was violated when the defendant’s counsel, among many behalf. Bowling cannot therefore show prejudice; the mere other deficiencies, met with his client in a capital case for less fact that counsel spent little time with him is not enough than two hours). under Strickland, without evidence of prejudice or other defects. As a result, Bowling has not shown that the We are concerned, however, by the fact that Bowling has Kentucky Supreme Court’s decision denying him relief on done nothing to substantiate this bare allegation. Bowling has this ground is unreasonable. not even submitted a personal affidavit verifying the one-hour total consultation figure. Bowling’s trial counsel signed 3. Failing to Present EED and Other Mitigating affidavits stating their general strategy and admitting that they Evidence never interviewed Chief Walsh of the Police Department. Though they easily could have done so, these affidavits never Bowling’s next claim is that his counsel was ineffective in mention the one-hour total consultation figure. Instead of their efforts to present evidence of an EED defense in the providing that sort of substantive evidence, Bowling simply guilt phase and to present general evidence of mitigation in raises this claim in his briefs, often making very limited the penalty phase. Bowling claims that his lawyers did not claims like, “Lead counsel at trial appears to have visited Mr. present evidence that could have garnered Bowling a Bowling for a mere hour, cumulative,” without any mitigating instruction under KY . REV . CODE ANN . supporting evidence. J.A. at 1843 (Motion for Post- § 532.025(2)(b)(2) and (7), which allow for mitigation upon

No. 01-5832 Bowling v. Parker 27 28 Bowling v. Parker No. 01-5832

a showing of “extreme mental or emotional disturbance” or a Assuming that we — I mean, we are going to rest. We lack of capacity “to appreciate the criminality of his conduct were — I didn’t mean to seem like we were stringing [or to conform the conduct] to the requirements of law . . . as him along. I do want them to know that we were a result of mental illness or retardation or intoxication.” considering putting Dr. Veal [sic] on this afternoon. We needed to talk to him about some additional information Bowling makes several arguments. He argues that his that we had. He did not get back to us. On further lawyers failed to understand the Kentucky requirements of reflection, we decided to rest. EED. He argues that his lawyers hastily prepared their expert Dr. Beal and that they should have presented him in the J.A. at 4757. In isolation, this comment suggests that his penalty phase. Bowling alleges that his lawyers did not put attorneys may have chosen not to call Beal as a witness on Dr. Beal because Beal did not return a phone call. because they could not find him. Even if this is true, Bowling also argues that counsel in the penalty phase should however, it was better for Bowling that his attorneys did not have submitted evidence that Bowling had a growth removed call Dr. Beal to testify, as it is clear that Beal’s testimony was from his head at age seven, sustained serious head injuries, not going to help Bowling establish extreme emotional had a violent alcoholic father, and suffered a history of disturbance. Beal’s report states: alcohol abuse and blackouts. The Kentucky Supreme Court rejected all of these assorted claims. Bowling II, 981 S.W.2d There is no evidence that the mental disorders at 550. substantially impaired this man[’]s behavior with respect to the alleged actions, such that he lacked substantial Some of Bowling’s claims clearly have no merit. Bowling capacity to appreciate the criminality of his conduct, or claims that Beal’s analysis was a hasty last-minute effort, but that he was unable to conform his conduct to the Beal spent nine hours with Bowling, interviewed several requirements of the law. In my opinion Mr. Bowling members of Bowling’s family, examined medical and family was legally sane at the time of the offenses for which he records, and wrote a written report. Bowling argues that his is charged. lawyers did not understand the Kentucky requirements of EED, but Bowling has offered no evidence to support this J.A. at 5320 (Beal Report). The report contains other claim, and our review of the transcript suggests otherwise. damaging observations as well. In his psychological assessment of Bowling, Beal reported Bowling as having a Bowling’s chief objection seems to be a challenge to his tendency to be “angry, irritable, resentful” and “asocial,” and counsel’s decision not to put Dr. Beal on the stand. Many said that his offenses could be expected to be “vicious and sensible reasons could justify this decision. First, if Beal had assaultative . . . senseless, poorly planned, and poorly testified to Bowling’s mental deterioration before the crime, executed.” J.A. at 5328. Moreover, it is clear that Dr. Beal that might have implicitly suggested to the jury that Bowling did not think Bowling was entitled to an EED instruction. was the murderer. The decision not to call Beal as a witness One of Bowling’s attorneys wrote a memorandum describing may have been a necessary consequence of Bowling’s his conversation with Dr. Beal, during which Dr. Beal insistence on not abandoning his claim of innocence in the suggested that “Bowling was in a frame of enraged anger guilt phase. Bowling claims, however, that his attorneys were prior to the murders, and we discussed that this did not simply lazy, pointing to the following statement that his appear to be a heat of passion kind of thing, but rather attorneys made in deciding to rest his case: something that had been developing several days earlier.”

No. 01-5832 Bowling v. Parker 29 30 Bowling v. Parker No. 01-5832

J.A. at 5335 (Att’y Memorandum) (italics added). This alcoholic father, and a history of alcohol abuse and blackouts. would be very damaging information, for as we noted, supra As an initial matter, Bowling did present some of this at Part II.C, in our discussion of extreme emotional information. His sister and mother testified to his drinking, disturbance, it would, in fact, destroy Bowling’s request for the prevalence of mental illness in the family, and his strange an EED instruction under Kentucky law. See McClellan, 715 behavior during the weeks before the shooting. Bowling has S.W.2d at 468. not submitted evidence that he suffered from a violent alcoholic father. Bowling’s evidence that he had a growth Because Beal’s testimony was not going to help Bowling, removed from his head and a serious head injury comes from it was certainly reasonable (and perhaps ultimately better for an initial doctor’s report noting the head growth and the fact Bowling) that Bowling’s counsel chose to rely on the that Bowling was in a boating accident as a child that left him testimony of their favorable lay witnesses, Bowling’s sister unconscious. Beal’s report, however, considered this earlier and mother, who testified to his deteriorating state of mind, as report, and did not think the head growth and childhood well as on the state’s mental health expert, Dr. Smith, whose injury worthy of mention. report seems more helpful to the defense than the one of Dr. Beal. See Bowling II, 981 S.W.2d at 550 (noting that the This evidence, though not presented, does not seem to have State’s profile “aided Appellant in his case more than his own much importance. Bowling’s counsel submitted these facts psychologist’s profile”). Dr. Smith, in contrast to Dr. Beal, to their expert, who seemed to view them as trivial and not believed that it was “unlikely but not impossible that Mr. worth pursing. It was therefore reasonable for counsel to Bowling, as a result of mental disease or defect, lacked make the strategic decision to pursue other avenues of relief substantial ability to comprehend the criminality of his for Bowling by stressing his drinking, mood swings, and behavior or to conform his behavior to the requirements of increasing depression. Moreover, Bowling cannot show any law.” J.A. at 5186-87 (Smith Report). Smith’s report also prejudice from this alleged deficiency, because it is simply states that Bowling “suffers from Alcohol Abuse” and that at unrealistic to say that knowledge of these two minor the time of the accident Bowling either “suffered from a childhood incidents, which have no apparent connection to major psychiatric disorder or . . . was suffering an ordinary the present, could have changed anything. Bowling has not reaction to the loss of his wife occurring in an alcoholic shown deficiency or prejudice as those terms have been used individual with this [Antisocial and Borderline] personality in other binding precedent. Cf. Terry Williams v. Taylor, 529 disorder.” J.A. at 5186. U.S. 362, 395-98 (2000) (finding ineffective assistance when counsel failed to introduce evidence that the defendant was Since Beal’s testimony was not going to aid Bowling, borderline mentally retarded and was severely and repeatedly Bowling cannot show ineffective assistance of counsel for the beaten by his father); Coleman v. Mitchell, 268 F.3d 417, failure to present it. Even if Bowling is right and his 450-53 (6th Cir. 2001) (finding ineffective assistance when attorneys were not making a tactical error but were being counsel failed to report that the defendant was borderline deficient in failing to present Beal, Bowling cannot show mentally retarded and sexually abused by his grandmother prejudice. who involved him in her voodoo and group sex practices), cert. denied, 535 U.S. 1031 (2002); Carter v. Bell, 218 F.3d Finally, Bowling argues that his counsel could and should 581, 593-94, 600 (6th Cir. 2000) (finding ineffective have submitted evidence that Bowling had a growth removed assistance when counsel failed to introduce medical records from his head at age seven, serious head injuries, a violent showing multiple childhood and adult head injuries from

No. 01-5832 Bowling v. Parker 31 32 Bowling v. Parker No. 01-5832

accidents and fights, and physician recommendations for has not even suggested anything that Baldani failed to ask. psychiatric hospitalization); Glenn v. Tate, 71 F.3d 1204, This claim therefore fails. 1208, 1211 (6th Cir. 1995) (finding ineffective assistance when counsel failed to introduce evidence showing that the 5. Failing to Investigate the Message With the Police defendant sustained organic brain damage before he was born and was mentally retarded as a result), cert. denied, 519 U.S. Bowling also argues that a message left within the police 910 (1996). department long before the trial took place suggests that there may be another witness to the crime. The message is from an 4. Failing to Prepare Because of the Indictment officer who had a friend whose boyfriend was a witness to the accident. The message reports only that the “incident occured Bowling next claims that his attorney Summers was [sic] over a fender bender type accident.” J.A. at 1779. unprepared because Summers was told on the first day of trial that he was being indicted. Bowling points to an affidavit Bowling contends that his counsel was ineffective for not filed by another of his trial attorneys, Baldani, who stated that taking steps to investigate who sent the message. Even Summers was “extremely upset” and asked Baldani to cross- assuming that Bowling could show his counsel was deficient examine the investigating officer, Detective Henderson. J.A. for failing to do so, Bowling cannot prove prejudice. at 1243 (Baldani Aff.). Bowling argues that if his counsel had been able to find this witness, then the witness could have rebutted the In Bowling’s post-conviction appeal, the Kentucky prosecution’s theory that Bowling had intentionally rammed Supreme Court analyzed this claim and stated that “[w]ith no the car, which would have entitled Bowling to an instruction evidence that counsel’s indictment had any negative on EED. Bowling, however, has no evidence that the witness implications on Appellant’s trial, we cannot conclude that would testify that the incident was accidental or that an Appellant was denied effective counsel in this respect.” accidental collision would have been sufficient to warrant an Bowling II, 981 S.W.2d at 550. instruction on EED. In fact, it seems likely that the witness would have hurt Bowling’s case. The only thing known The Kentucky Supreme Court is correct. Bowling has not about the witness is that she described the accident preceding even alleged that the performance of his defense team was the shootings as a fender bender. This tends to suggest that hampered when Baldani had to take over for Summers. the accident was an extremely minor one, which would Neither Baldani in his affidavit nor Bowling in his brief contradict Bowling’s claim that the accident was so jarring as makes any claim that Summers would have done a better job to make him lose control over his actions and shoot the than Baldani did. On direct examination, Detective Earleys. Moreover, as the Kentucky Supreme Court stressed, Henderson related the events surrounding Bowling’s arrest in “[i]t was not the lack of evidence pertaining to the collision, Knoxville, told of retrieving Bowling’s personal effects, and but rather the lack of evidence showing the effect the collision testified about interviewing the witnesses placing Bowling on had upon Appellant that precluded the EED instruction.” the road near where his car was discovered on the evening of Bowling II, 981 S.W.2d at 549. As a result, this claim of error the murder. On cross-examination, Baldani got Henderson to also fails. admit that none of the personal effects had blood on them and that the car itself did not have blood on it either. No part of Baldani’s cross-examination seems substandard and Bowling

No. 01-5832 Bowling v. Parker 33 34 Bowling v. Parker No. 01-5832

6. Failing to Impeach the Prosecution’s Witnesses Maryland, 373 U.S. 83 (1963). Specifically, Bowling wants to investigate whether the prosecution had any internal Bowling’s last claim of ineffective assistance of counsel is documents linking the Earleys to Donald Adams (and thus that his counsel inadequately cross-examined Clay Brackett.7 Donald Adams to the crime itself), and whether Bowling’s Bowling argues that an adequate cross-examination of counsel was defective for not further investigating Adams.8 Brackett, who sold Bowling the murder weapon, would have Bowling also seeks an evidentiary hearing to establish shown that he testified pursuant to a covert deal struck with whether his counsel was ineffective for failing to investigate police who agreed not to pursue him for failing to register his a potential deal the government made with Clay Brackett. firearms. The Kentucky Supreme Court rejected this claim as Bowling was never granted any post-conviction evidentiary well. Bowling II, 981 S.W.2d at 550. hearing by the Kentucky state courts, but requested an evidentiary hearing in the direct appeal and post-conviction Bowling, however, has put forth no evidence of an agreement between Brackett and the government. Without any evidence supporting Bowling’s claim, we cannot say that 8 Although Bowling raises this Brady claim as a part of his general the Kentucky Supreme Court’s decision to deny relief on request for an evidentiary hearing, see Appellant Br. at 51-54; Reply Br. these grounds was improper, let alone unreasonable. at 16-17, Bo wling does not discuss it outside of this context. Construing Bo wling’s appellate briefs generously, we will consider this part of E. Evidentiary Hearing Bo wling’s petition as stating a Brady claim as well as a claim that an evidentiary hearing sho uld be gran ted on this Brady issue.

W e reject the Brady claim. First, we note that this claim is Bowling next claims that the district court erred by denying procedurally defaulted. Bowling raised three Brady issues in the federal him a federal evidentiary hearing in conjunction with his district court. He claimed that the prosecution did not disclose habeas petition. Bowling seeks an evidentiary hearing to exculpatory notes on the results of a photo lineup, documents establishing investigate one of his Brady claims and a few of his the extramarital affairs of Tina Earley and drug use by both Earleys, and ineffective assistance of counsel claims. See Brady v. a deal with Clay Brackett. See Bow ling III, 138 F. Supp. 2d at 879-885;

J.A. at 109-12 (Pet. Br. in Dist. Ct.). He did not raise there the Brady claim he alludes to here: whether “[t]he prose cution failed to disclose 7 evidence regarding D onald A dams’ prosecution for drug charges, his In his brief to this court, Bo wling raise s for the first time the involvement in a drug ring, and the victims’ involvem ent with the police.”

possibility that his counsel was also ineffective for failing properly to Appellant Br. at 53. Moreover, this claim was not presented to the cross-examine Detective H enderson . This claim was never presented to Kentucky Supreme Co urt. For these reasons Bo wling’s claim is the Kentucky S upreme C ourt an d was not even presented to the district defaulted. court below. It is therefore defaulted. Even if this claim were properly presented to the federal district court In any eve nt, we ho ld this claim has no merit. Bowling argues that and the Kentuck y Supreme Court, we would deny the claim on the merits.

an adequate cross-examination of Henderson would have revealed that the Under Brady v. Maryland, 373 U.S. 83 (19 63), a prosecutor who prosecution had no explanation for why Bo wling comm itted the murders. suppresses evidence that is favorable to the defendant and “material either Bowling argues that his attorneys inappropriately chose not to ask to guilt or to punishment” violates due pro cess. Id. at 87; see also United Detective Henderson about whether Bowling knew the Ea rleys or not, States v. Bagley, 473 U.S. 667, 682 (1985) (explaining that materiality after being warned by the judge that this would open the door to hostile exists when “there is a reasonable probability that, had the evidence been evidence and after consulting with B owling himself. Bowling gives no disclosed to the defense, the result of the proceeding would have been reason to think this was an unreasonable decision , and even if it was, different”). In the present case, however, Bowling has not put forth any Bowling does not explain how it could have prejudiced his case, as the evidence to show that the prosecution improperly suppressed information defense repeatedly stated throughout trial that there was no apparent about Do nald A dam s or that such a suppression would be material. W e motive. therefore reject Bowling’s Brady claim.

No. 01-5832 Bowling v. Parker 35 36 Bowling v. Parker No. 01-5832

proceedings. We conclude that the district court did not err F.3d 442, 460 (6th Cir. 2001) (citation omitted), cert. denied, in denying Bowling an evidentiary hearing. 123 S. Ct. 136 (2002).

The first hurdle that Bowling must jump is 28 U.S.C. Bowling cannot show that the district court abused its § 2254(e)(2), which prevents federal courts from granting discretion in denying him an evidentiary hearing. Bowling’s evidentiary hearings to petitioners who “fail[] to develop the claims that Donald Adams was the one who murdered the factual basis of a claim in State court proceedings.” The victims and that Clay Brackett had a deal with the Supreme Court has explained that “a failure to develop the government do not amount to anything more than conclusory factual basis of a claim is not established unless there is lack allegations. At oral argument, Bowling’s counsel argued that of diligence, or some greater fault, attributable to the prisoner Bowling could not make more than bald assertions precisely or the prisoner’s counsel.” Michael Williams v. Taylor, 529 because he had not had an evidentiary hearing. This circular U.S. 420, 432 (2000). This court has noted that “a finding of logic, however, would entitle every habeas defendant to an diligence would ‘depend[] upon whether the prisoner made a evidentiary hearing on any issue. Without some evidence in reasonable attempt, in light of the information available at the support of Bowling’s implausible theory of the case, which is time, to investigate and pursue claims in state court.’” analyzed above in our discussion of Bowling’s ineffective Sawyer v. Hofbauer, 299 F.3d 605, 610 (6th Cir. 2002) (citing assistance of counsel claims, we cannot say that the district Williams, 529 U.S. at 435). court’s decision to deny an evidentiary hearing was an abuse of discretion.9

Bowling has met his burden under 28 U.S.C. § 2254(e)(2). Bowling repeatedly sought an evidentiary hearing in state F. Prosecutorial Misconduct court and, in those proceedings, introduced several documents attempting to corroborate the deal between Clay Brackett and Bowling’s fourth set of claims relates to allegations of the government and to establish the culpability of Donald misconduct on the part of the prosecution. On direct appeal, Adams. We find this sufficient to show that Bowling was the Kentucky Supreme Court considered the claims of diligent in his state court litigation. prosecutorial misconduct together and found no merit in them. Bowling I, 873 S.W.2d at 178.

However, the fact that Bowling is not disqualified from receiving an evidentiary hearing under § 2254(e)(2) does not entitle him to one. We must determine then whether the district court abused its discretion by denying him an 9 To the extent that Bowling seeks relief by arguing that the Kentucky evidentiary hearing. See Sawyer, 299 F.3d at 610. This court courts erroneously applied state law by denying him a post-conviction has held that “a habeas petitioner is generally entitled to such evidentiary hearing, we reject his claim. As we have noted in this opinion a hearing if he alleges sufficient grounds for release, relevant already, we generally do not review alleged vio lations o f state law in facts are in dispute, and the state courts did not hold a full and federal habeas p roceedings; there must be some independ ent constitutional error. Estelle v. Mc Guire, 502 U.S. 62, 67-68 (1991).

fair evidentiary hearing.” Id. (internal quotations omitted). Insofar as Bowling may be claiming that this alleged state-law error However, “[e]ven in a death penalty case, ‘bald assertions and violated due process, we believe that any po tential error was not so conclusory allegations do not provide sufficient ground to fundamentally unfair as to violate Bo wling’s due-process rights. Insofar warrant requiring the state to respond to discovery or to as Bowling may be claiming that this alleged error entitled him to an require an evidentiary hearing.’” Stanford v. Parker, 266 evidentiary hearing in federal court, we have considered and rejected this claim immediately above.

No. 01-5832 Bowling v. Parker 37 38 Bowling v. Parker No. 01-5832

On habeas review, claims of prosecutorial misconduct are or in reverse. Is there anybody here that is not in neutral? reviewed deferentially. Darden v. Wainwright, 477 U.S. 168, How did you like the way I viewed that? Thank you; I 181 (1986). To be cognizable, the misconduct must have “‘so have no other questions, Judge. infected the trial with unfairness as to make the resulting conviction a denial of due process.’” Id. (citation omitted). J.A. at 3317-18. Bowling is correct when he states that a jury Even if the prosecutor’s conduct was improper or even must be told a defendant is presumed innocent. Taylor v. “universally condemned,” id., we can provide relief only if Kentucky, 436 U.S. 478, 484-86 (1978). Given the context of the statements were so flagrant as to render the entire trial the prosecutor’s statement, it is clear that the prosecutor did fundamentally unfair. Once we find that a statement is not undermine that presumption; instead, the prosecutor was improper, four factors are considered in determining whether merely trying to make sure that the jury began the trial the impropriety is flagrant: (1) the likelihood that the remarks without presuppositions about the case. The same prosecutor would mislead the jury or prejudice the accused, (2) whether had made the following remark only seconds before: the remarks were isolated or extensive, (3) whether the remarks were deliberately or accidentally presented to the Do we all agree that this Defendant is, as he sits right jury, and (4) whether other evidence against the defendant here, innocent until proven guilty? We all understand was substantial. See Boyle v. Million, 201 F.3d 711, 717 (6th that there has been no evidence heard in this case. And, Cir. 2000). Under AEDPA, this bar is heightened by the as a result, if all of us had to vote right now, we would deference we give to the Kentucky Supreme Court’s have to vote not guilty because we haven’t heard any determination of Bowling’s prosecutorial-misconduct claims. evidence. Do we understand that? Okay; now, in See Macias v. Makowski, 291 F.3d 447, 453-54 (6th Cir. criminal cases, the burden of proving a person charged 2002) (“If this court were hearing the case on direct appeal, with a crime guilty beyond a reasonable doubt rests on we might have concluded that the prosecutor’s comments the Commonwealth . . . . The burden is on us; do you violated Macias’s due process rights. But this case is before understand that? us on a petition for a writ of habeas corpus. So the relevant question is not whether the state court's decision was wrong, J.A. at 3315. Considering these statements together, it but whether it was an unreasonable application of clearly becomes apparent that the presumption of innocence was not established federal law.”). negated in this case. There is therefore no impropriety here, and this claim is easily dismissed.

1. The Presumption of Innocence 2. Comments on Bowling’s Silence Bowling’s first claim is that the prosecutor negated the presumption of innocence during general voir dire by drawing Bowling also argues that the prosecution made the following analogy: constitutionally improper comments about his failure to testify. Bowling has two comments in mind. First, in the Okay; most of us know how to drive a standard prosecution’s closing argument in the guilt phase, the transmission. That means that you are not going forward prosecutor argued that the defendant did have a motive: in this case or you are not going in reverse in this case, but you are sitting in neutral waiting to determine, based But, see, we have proven a motive. There is no doubt he on the evidence you hear here, whether you go forward had one. See, something made him buy that gun from

No. 01-5832 Bowling v. Parker 39 40 Bowling v. Parker No. 01-5832

Mr. Brackett before this killing. Something caused him necessarily’ take them as such; 2) were the remarks isolated to go out and sit by that fence row by that empty slat. or extensive; 3) was the evidence of guilt otherwise Something made him do that. Something made him say overwhelming; 4) what curative instructions were given and that morning, “Today is the day.” Something motivated when.” Lent v. Wells, 861 F.2d 972, 975 (6th Cir. 1988), cert. him to plan it so that he caught Eddie and Tina Early denied, 489 U.S. 1100 (1989). there the every morning [sic] — or, at the very moment of their arrival at the cleaners. And, something The prosecution’s comments do not create constitutional motivated him to ram his car into theirs, and to empty error. Analyzing the above factors, we conclude that both of that .357 into their bodies. We have proven to you that the comments are singular, inadvertent statements that only he had a motive. We can’t tell you what it is, because upon reflection marginally touch on Bowling’s silence. They only the man that pulled the trigger knows. But, we were not manifestly intended to reflect on Bowling’s silence know that there is one. and likely would not have been taken as such. The prosecution’s first comment, which was not objected to, that J.A. at 4860-61. Bowling argues that the statement “only the “only the man that pulled the trigger knows” was probably man that pulled the trigger knows,” was effectively a intended to show the jury that the prosecution had done comment on the fact that Bowling did not testify at trial. everything it could to show motive; the comment was likely Bowling did not, however, object to this statement at the time. not intended to highlight the defendant’s silence. The second Bowling also points to the prosecution’s argument in the statement seems even less appropriately construed as a penalty phase where the prosecutor remarked, “What the comment on the defendant’s silence — the prosecution was defendant cannot get away from here is the planning, the merely emphasizing its view that the defendant’s actions at premeditation, the physical evidence, his actions, the the time of the crime (rather than his silence at trial) callousness of it, and his lack of seeming remorse.” J.A. at demonstrated no remorse. See Lent, 861 F.2d at 975 (stating 5116. Bowling objected to this statement at trial and argues that there can be no constitutional error if “some other here that it also was a comment on Bowling’s silence. explanation for the prosecutor’s remarks is equally plausible”). We therefore conclude that such comments do The law is clear that the prosecution cannot comment on a not constitute constitutional error. defendant’s decision not to testify at trial. See Griffin v. California, 380 U.S. 609, 615 (1965); Rachel v. 3. Diminished Jury Responsibility Bordenkircher, 590 F.2d 200, 202 (6th Cir. 1978) (granting writ of habeas corpus and requiring a new trial when the Bowling argues that the prosecutor diminished the jury’s prosecutor remarked that he could not say what happened responsibility for deciding whether to apply the death penalty. because the defendant “won’t tell us”). Yet, prosecutors can Bowling points to several comments made at the penalty “summarize the evidence and comment on its quantitative and phase that he alleges took the responsibility for the death qualitative significance.” United States v. Bond, 22 F.3d 662, sentence away from the jury and placed it on the prosecution, 669 (6th Cir. 1994). When a statement indirectly comments the legislature, and society. on the defendant’s decision not to testify, this court uses four factors to evaluate such a statement: “1) Were the comments The Supreme Court has established that “it is ‘manifestly intended’ to reflect on the accused's silence or of constitutionally impermissible to rest a death sentence on a such a character that the jury would ‘naturally and determination made by a sentencer who has been led to

No. 01-5832 Bowling v. Parker 41 42 Bowling v. Parker No. 01-5832

believe that the responsibility for determining the (holding that, under Dugger, the use of the word appropriateness of the defendant’s death rests elsewhere.” “recommend” under Kentucky law did not misstate the jury’s Caldwell, 472 U.S. at 328-29. In Caldwell, the Supreme role and therefore could not amount to a Caldwell Court reversed the defendant’s conviction after the prosecutor violation).10 As a result, this statement was not made in explicitly argued that the responsibility for the death penalty violation of Caldwell. was not with the jury, by telling the jurors “your decision is not the final decision.” Id. at 325. In Dugger v. Adams, 489 The second potentially problematic statement was also U.S. 401 (1989), the Court held that “to establish a Caldwell made by the prosecution in its closing: violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury That is an extraordinary case, you see. Multiple by local law.” Id. at 407. Bowling cites several statements homicides, intentional killings; you kill one person. made in closing argument that allegedly violate Caldwell, but Don’t kill everybody else, the other witnesses. none of these claims have merit. Extraordinary cases. In Kentucky, the death penalty applies. And, our Legislature has said in those A number of the statements Bowling puts forward clearly aggravated murder cases that the death penalty may be do not constitute Caldwell violations. Bowling claims that imposed by a jury. Potter Stewart, a former Justice of the the prosecutor improperly told the jury to find the death United States Supreme Court, said while dealing with penalty because Bowling was not ill but mean, because the death penalty cases. “The expression of society’s moral legislature had deemed the death penalty appropriate when it outrage is essential in an ordered society that asks its devised the legislative scheme, and because Bowling might be released on parole otherwise. We note initially that Bowling’s characterizations of the prosecution’s remarks are 10 There is a violation of state law here, how ever, beca use during the somewhat inaccurate and exaggerated. In any event, period between Caldwe ll and Dugger (and before the trial in this case), however, Bowling has not shown how the prosecution’s the Kentucky Suprem e Co urt held that the wo rd “recom mend,” wh ile remarks improperly described the role assigned to the jury by technically accurate, improperly suggested to the jury that they were local law as required by Caldwell. “mere ly one step in a long process.” Tamme v. Commonwea lth, 759 S.W.2d 51, 5 3 (K y. 198 8); cf. Kordenbrock, 919 F.2d at 1101 (holding Only two of the prosecutor’s statements are potentially that there was no violation of state law because the trial and appeal in the case at bar happened before the decision in Tamme and the dec ision in serious violations of Caldwell. The first statement was made Tamme was not retroactive). by the prosecutor who, when addressing the jury, stated that W e do not believe this violation of state law is so egregious as to the jurors could not “recommend the death penalty unless make the prosecutor’s misconduct a violation of due process. Although [they] first decide that an aggravating factor exists.” J.A. at the prosecutor erroneously used the word “recommend,” it was an isolated 5113-14 (italics added). Bowling alleges that the jury’s remark and clearly not intended to prejudice the jury — the prosecutor routine ly used other m ore approp riate words, such as “fix[]” and responsibility for the death penalty was unconstitutionally “impose” throughout his closing argument. J.A. at 511 0, 51 13. In fact, lessened by the use of the word “recommend.” We have held, his closing argument ended with the stateme nt, “I am asking you to however, that this statement does not misstate local law sentence T.C. Bo wling to death.” J.A. at 5120. In this context, it is clear because Kentucky statutes also use the word “recommend.” that the jury was well aware that it had responsibility of deciding whether See KY . REV . CODE ANN . § 532.025(1)(b); Kordenbrock v. the death penalty should apply. We therefore hold that any potential violation of state law under Tamme did not violate B owling’s due-pro cess Scroggy, 919 F.2d 1091, 1101 (6th Cir. 1990) (en banc) rights.

No. 01-5832 Bowling v. Parker 43 44 Bowling v. Parker No. 01-5832

citizens to rely on legal processes rather than self-help to 113. The Solivan court distinguished Alloway by noting that vindicate their wrongs.” He continued — and this is the comments in Alloway “constituted a general plea which critical — “because,” he said, “when people begin to did not even specifically refer to the crime of armed robbery,” believe that organized society is unwilling or unable to and that “armed robbery was not and is not the specific focus impose on criminal offenders the punishment they of national attention as is the drug problem.” Solivan, 937 deserve, then the seeds of anarchy will soon be sewn.” F.2d at 1155. In contrast, in Solivan, “the prosecutor went beyond . . . a mere innocuous reference to the community or J.A. at 5111-12. Bowling argues that this quotation, which societal need to convict guilty people . . . and went so far as comes from Justice Stewart’s concurrence in Furman v. to urge the jury to send a message to the community, to Georgia, 408 U.S. 238, 308 (1972), and was repeated in defendant and ‘all of the drug dealers like her’ by convicting Gregg v. Georgia, 428 U.S. 153, 183 (1976), violates the defendant.” Id. In Solivan, the prosecutor suggested that principles announced in Caldwell. However, it is clear that through a conviction “the jury . . . would help keep its there is nothing in this statement that explicitly misinforms community in northern Kentucky free of the drug trade.” the jury of its role. Bowling’s argument here is better conceptualized as a claim under Viereck v. United States, 318 In Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001), we again U.S. 236 (1943), which held that the incendiary nature of a addressed the distinction between Alloway and Solivan, prosecutor’s patriotic remarks which were “wholly irrelevant denying a writ of habeas corpus to a defendant on the basis of to any facts or issues in the case, the purpose and effect of a prosecutor’s remark that “the jury should ‘send a message which could only have been to arouse passion and prejudice” to the Robert Buells of the world’ that ‘if you're going to jeopardized the defendant’s right to a fair trial. Id. at 247. commit this kind of a crime then you better be expecting to This court, however, has stated that unless the remarks were pay the ultimate price, yourself.” Id. at 365. We noted that “calculated to incite the passions and prejudices of the jurors, the prosecutor in Buell “was not making a statement regarding appeals to the jury to act as the community conscience are not the jury’s ability to address a specific societal problem,” but per se impermissible,” United States v. Solivan, 937 F.2d was merely making “a general statement regarding the need 1146, 1151 (6th Cir. 1991), and so a case-by-case analysis is to convict people who commit sexual molestation and required. murder.” Id.

In Solivan, we held that a prosecutor violated the Under our binding precedents, we hold that the prosecutor’s defendant’s right to a fair trial when he urged the jury to “tell statement in this case is not so improper as to violate her and all of the other drug dealers like her . . . that we don’t Bowling’s due-process rights. The statement that Bowling want that stuff in Northern Kentucky and that anybody who complains of is a general reference to the societal need to brings that stuff in Northern Kentucky . . . [interrupted by the punish guilty people; the prosecutor in this case did not court]” Id. at 1148. An earlier case, United States v. Alloway, “attempt to compare or to associate the defendant with a 397 F.2d 105 (6th Cir. 1968), had held not improper a feared and highly publicized group, such as drug dealers,” prosecutor’s statement that “You the jurors, are called upon Solivan, 937 F.2d at 1154, but was attempting only to make in this case to be the world conscience of the community. “a general statement regarding the need to convict people who And I'm calling on this jury to speak out for the community commit . . . murder,” Buell, 274 F.3d at 365. Moreover, the and let the John Alloways know that this type of conduct will prosecutor did not state that the jurors’ individual not be tolerated, that we're not going to tolerate . . .” Id. at communities would be safer if the defendant were convicted,

No. 01-5832 Bowling v. Parker 45 46 Bowling v. Parker No. 01-5832

as was the case in Solivan. Although we will not say that the 399, 409 (6th Cir. 2000) (upholding the statement, “Ask giving of this statement was proper, see State v. Byrd, 512 yourself if you had a loved one, or had a relative, or a friend, N.E.2d 611, 615-16 (Ohio 1987) (calling the same argument who was in a situation like that”). Given the Simpson “not proper” and “caution[ing] prosecutors to avoid such precedent, by which this panel is bound, we must conclude arguments”), we do not find it, under the circumstances of that the statement that Bowling complains of is not so this case, so improper as to render Bowling’s trial fundamentally unfair as to constitute a denial of due process. fundamentally unfair, see Macias, 291 F.3d at 453-54 (noting that the normally deferential review of prosecutorial 5. Finding of Statutory Aggravator misconduct is even more deferential under AEDPA).

Bowling next claims prosecutorial misconduct amounting 4. The Golden Rule to a denial of due process in the fact that the prosecutor told the jury, during the eligibility section of the penalty phase, Bowling claims that the prosecutor also committed that because it had already found the aggravating misconduct when, after discussing the testimony of Bowling’s circumstance in the guilt phase of the trial (by finding family, he remarked in the penalty phase: Bowling guilty of intentional double homicide), it need not again consider whether there was an aggravating It is always difficult when a family member testifies on circumstance in the penalty phase, because under Kentucky behalf of someone charged with a crime. They are his law, the aggravating circumstance was already shown. See family. And, what do you expect? Don’t you know that KY . REV . CODE ANN . § 532.025(2)(a)(6) (making an offender Mr. and Mrs. Early and Ms. Morgan would give anything eligible for the death penalty when “[t]he offender's act or in the world to have had the opportunity to beg for their acts of killing were intentional and resulted in multiple children’s life on April 9, 1990. Please don’t hurt our deaths”). The prosecutor remarked as follows: children. And, don’t you know, Chris [the injured child], if he could, would love to have plead for the life of his You cannot recommend the death penalty unless you first mother and father. decide that an aggravating factor exists. Did the Defendant, Thomas Clyde Bowling, Jr. intentionally J.A. at 5115-16. Bowling argues that the prosecutor’s cause the death of more than one person. I don’t have to comments here are similar to the forbidden Golden Rule, remind you that you found that last Friday. which “tends to pressure the jury to decide the issue of guilt or innocence on considerations apart from the evidence of the J.A. at 5113-14. defendant’s culpability.” Dean v. Commonwealth, 777 S.W.2d 900, 904 (Ky. 1989) (finding error in an extended This instruction does not appear to violate Bowling’s statement glorifying the victim of a homicide). constitutional rights. First, an aggravating circumstance may be found at either the guilt or penalty phase. See Tuilaepa v.

This comment, however, was an isolated remark that did California, 512 U.S. 967, 971-72 (1994). Second, Tuilaepa not suggest to the jury that they should decide the case on a notwithstanding, the jury instructions in this case did in fact basis other than Bowling’s culpability. This court has require the jury to find the aggravating circumstance beyond recently held a more dangerous comment not to be improper, a reasonable doubt in the penalty phase as well as in the guilt let alone a denial of due process. Simpson v. Jones, 238 F.3d

No. 01-5832 Bowling v. Parker 47 48 Bowling v. Parker No. 01-5832

phase, J.A. at 5106, which the jury found, J.A. at 5138. There In summary, we find none of Bowling’s allegations of is therefore no error. prosecutorial misconduct, individually or together, violate due process.

6. Denigration of Bowling’s Mitigation Evidence G. Denial of Fair Jury

Finally, Bowling argues that the prosecution improperly told the jury that it did not have to consider Bowling’s Bowling’s next set of claims is that the jury empaneled to mitigation evidence. Bowling cites to the part of argument hear his case was unfairly selected. Bowling has two where the prosecutor remarked: independent claims for relief. His first argument is that one of the jurors actually seated was an “automatic death penalty”

It is a strong, strong, strong case against this Defendant. juror who should have been excluded. Bowling’s second And, what about mitigating circumstances that you are argument is that three jurors, whom Bowling eventually instructed to consider, if you wish; Mitigating struck with his peremptory challenges, should have been circumstances, whether there are any mitigating dismissed for cause. These claims do not have merit. circumstances that would make this entire event less serious, the brutal murder of two young lives. Are there Bowling’s first claim of improper jury selection is that any such circumstances? Are there? Charles Livingston, Juror # 650, should have been excluded for cause as an “automatic death penalty” juror. See Morgan J.A. at 5116 (italics added). Bowling argues that the v. Illinois, 504 U.S. 719, 728 (1992) (noting that “a capital italicized phrase makes it seem that the jury does not need to defendant may challenge for cause any prospective juror . . . consider the mitigating evidence, which it is constitutionally who will automatically vote for the death penalty in every required to do under Boyde v. California, 494 U.S. 370, 380 case”); see also Wainwright v. Witt, 469 U.S. 412, 424 (1985) (1990). This could be an improper attempt to suggest to the (“[T]he proper standard for determining when a prospective jury they may decide not to consider mitigating evidence, but juror may be excluded for cause because of his or her views it seems more likely to be interpreted as a simple argument on capital punishment . . . is whether the juror’s views would that there is no mitigating evidence. See Lent, 861 F.2d at prevent or substantially impair the performance of his duties 975 (noting that there can be no constitutional error if “some as a juror in accordance with his instructions and his oath.”) other explanation for the prosecutor’s remarks is equally (internal quotation omitted). In determining whether a juror plausible”). Even if this is error, however, it is an isolated, is biased, “deference must be paid to the trial judge who sees unintentional error with no effect on the jury. The jury was and hears the juror.” Witt, 469 U.S. at 426. Even before repeatedly told in the instructions that they had to consider AEDPA, the trial court’s finding that a juror was impartial mitigating evidence; for example, an instruction states that the was entitled to a presumption of correctness, rebuttable only jury “shall consider such mitigating or extenuating facts and upon a showing of clear and convincing evidence. See 28 circumstances as have been presented to you.” J.A. at 5106. U.S.C. § 2254(e)(1); Patton v. Yount, 467 U.S. 1025, 1036 Bowling has therefore not made out a violation of due process (1984) (noting that juror partiality is a question of historical here. fact). The question is not whether the trial judge was wrong or right in his determination of impartiality, but merely whether his decision was “fairly supported by the record.” See Witt, 469 U.S. at 433 (internal quotations omitted).

No. 01-5832 Bowling v. Parker 49 50 Bowling v. Parker No. 01-5832

The colloquy between Livingston, the trial court, and the Q [(Court)]: Would you consider if mitigating two sets of counsel was extensive: circumstances were proven to you along with the rest of the case?

Q [(Pros.)]: If you were selected as a jury — juror, and A: I would try.

along with your eleven jurors in a Q: Would you consider all of the facts in the case, particular case concluded that the not just the fact that he had committed a defendant was guilty of intentional murder, multiple killing, but circumstances of how, then could you in the sentencing phase or why, when, and under what mental condition the penalty phase consider the entire range and all that sort of thing? of penalties, twenty years to life, life A: Uh-huh. without parole, or death? Q: Would you consider all of those factors?

A: One? A: Yes, (inaudible). Q [(Court)]: And, decide on one of them; but, could you Q: Then, let me know whether you believe that in consider all three penalties? every case where a defendant is convicted of an A: I could consider them all. intentional killing that the death penalty would automatically be given or should automatically J.A. at 3534-35. The court then asked whether Livingston be given? Do you believe that? Are you sure could vote for the death penalty, and he answered you understand what I am saying now? affirmatively. The court then asked: [Some clarification.]

* **

Q: By like token, even though the Defendant was found A: Well, what I’m saying now, you are saying if a guilty beyond a reasonable doubt of intentional man takes another person’s life intentionally — murder, if the other facts of the case made it you know, I feel that when a man takes another appropriate that only twenty years be fixed as the life, he should be punished for that. But, if he penalty, you could do that, too? takes someone’s life and he is not in his right A: Yes. mind, then I would consider (inaudible).

Q: Would you consider other facts that the law J.A. at 3536. However, Livingston was then asked questions says are mitigating circumstances? Well, I take by defense counsel. He first equivocated on whether he could it, that if the jury — if you should be on a jury necessarily or automatically give the death penalty, stating, and you find the Defendant in a particular case “Well, you know, in a trial if it is proven that he is guilty . . .” guilty of intentional murder, you wouldn’t J.A. at 3539. He was then asked, “but, given that situation of automatically, then, say death penalty and a multiple intentional killing, found guilty beyond a nothing else considered? reasonable doubt, that would lead you to automatically vote A: No, I would have to consider the other options. for the death penalty?” J.A. at 3540-41. He responded, Q: You could consider all of them including “Yes.” J.A. at 3541. Livingston later also stated that he felt twenty years, the minimum. strongly about that. Eventually, the Court intervened and A: Yes; I definitely don’t want, you know, asked some direct questions: (inaudible) see someone take the death penalty (inaudible).

No. 01-5832 Bowling v. Parker 51 52 Bowling v. Parker No. 01-5832

Q: Deserve it based upon your finding of all the mean the Sixth Amendment was violated.”); see also United facts — in your consideration of all of the facts States v. Martinez-Salazar, 528 U.S. 304, 307 (2000) (noting in the case? that there is no violation if the defendant “elects to cure [the]

A: Right. error by exercising a peremptory challenge, and is Q: Not just that one fact, that it was a multiple subsequently convicted by a jury on which no biased juror killing? sat”). There is therefore no constitutional violation here.

A: Yes.

H. Proportionality Review J.A. at 3542-46. Livingston was then moved out of the room. Bowling’s counsel challenged him for cause, but the motion Bowling’s last claim for habeas relief is that the review by was denied. the Kentucky Supreme Court for proportionality was unconstitutional. Bowling claims that the Kentucky Supreme Though we recognize this is a close question, ultimately Court erred in not setting aside his death sentence, because it Livingston is not an “automatic death penalty” juror within was excessive and disproportionate to the penalty imposed in the meaning of Morgan. Livingston did initially state that he similar cases. This claim fails. would automatically give the death penalty to those who met the aggravating factor, but later he expressly said that he The Supreme Court has held that the Constitution does would consider mitigating evidence. The trial court asked require proportionality review, but that it only requires Livingston thorough questions, and Livingston’s responses proportionality between the punishment and the crime, not showed that he was not someone who would automatically between the punishment in this case and that exacted in other impose the death penalty in all cases. Morgan requires only cases. See Pulley v. Harris, 465 U.S. 37, 50 (1984). that a juror be excluded if he would automatically “vote for Although “[t]here is no federal constitutional requirement that the death penalty without regard to the mitigating evidence,” a state appellate court conduct a comparative proportionality something that Livingston explicitly said he would not do. review,” McQueen v. Scroggy, 99 F.3d 1302, 1333-34 (6th Morgan, 504 U.S. at 738. This being the case, given the Cir. 1996), cert. denied, 521 U.S. 1130 (1997), Kentucky law deference we give to trial courts’ determinations of does require the Kentucky Supreme Court to engage in impartiality, we find that there is no constitutional error here, comparative proportionality review. See KY . REV . CODE and alternatively, that the Kentucky Supreme Court’s decision ANN . § 532.075(3)(c). Although claimed violations of state to that effect, Bowling I, 873 S.W.2d at 177, was not law are generally not cognizable on habeas, the Supreme objectively unreasonable. Court has left room for the argument that a state-law error could, potentially, “be sufficiently egregious to amount to a Bowling’s second claim is that he was forced to use denial of equal protection or of due process of law guaranteed peremptory challenges to strike three other jurors who should by the Fourteenth Amendment.” Harris, 465 U.S. at 41. have been disqualified for cause, and that he could have used Bowling therefore argues that the Kentucky proportionality these peremptories to exclude Livingston. The Supreme requirement creates a due-process interest that the Kentucky Court has made it clear that this is not a constitutional injury. Supreme Court violated by not finding his sentence See Ross v. Oklahoma, 487 U.S. 81, 88 (1988) (“So long as disproportionate. the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not

No. 01-5832 Bowling v. Parker 53 54 Bowling v. Parker No. 01-5832

As an initial matter, we question whether Kentucky law has stating that “Kentucky has limited review to cases in which created a due-process interest here. Kentucky requires that its the death penalty was imposed.” Appellant Br. at 121. Supreme Court assess “[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in Bowling’s recognition that Kentucky law does not require similar cases, considering both the crime and the defendant,” consideration of those additional cases reveals that he is and also requires it to “include in its decision a reference to actually arguing that Kentucky has an ineffective framework those similar cases which it took into consideration.” KY . for assessing proportionality rather than a claim that REV . CODE ANN . § 532.075(3)(c) & (5). This circuit recently Kentucky misapplied its own framework. This forecloses held that Tennessee’s proportionality statute, which is similar Bowling’s due-process argument, however, for there is no to the statute here, did not create a liberty interest because violation of due process as long as Kentucky follows its “the statute only tells the supreme court what questions it procedures. We note that we also have specifically rejected must ask. It does not tell the supreme court how it must do this type of challenge to Ohio’s proportionality statutes, so, and it does not even define the terms (e.g., arbitrariness) stating: of these questions. As a result, [the defendant] has no federal due-process right that was violated.” Coe, 161 F.3d at 352 [T]he Ohio Supreme Court has indicated that (citing Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, proportionality review is required under Ohio Rev. Code 463 (1989)). Similarly here, the statute only explains what § 2929.05(A) to the extent that the reviewing court must the Kentucky Supreme Court needs to consider — similar consider cases already decided by the court in which the cases, the crime, and the defendant — it does not tell that death penalty had been imposed. Since proportionality court how to make this decision. This suggests under Coe review is not required by the Constitution, states have that no due-process right exists. great latitude in defining the pool of cases used for comparison. By limiting proportionality review to other Even if there were a due-process interest here, however, the cases already decided by the reviewing court in which Kentucky Supreme Court did not violate it. The Kentucky the death penalty has been imposed, Ohio has properly Supreme Court, in its decision on direct appeal, did conduct acted within the wide latitude it is allowed. a comparative proportionality review and concluded it did not show that “this sentence of death is either excessive or Buell, 274 F.3d at 368-69 (citations omitted). As a result, we disproportionate to the penalty proposed in other capital find Bowling’s proportionality argument unconvincing and cases.” Bowling I, 873 S.W.2d at 181. In support, the dismiss his corresponding claim for relief. Kentucky Supreme Court cited four of its cases and incorporated a list of others. Id. at 181-82. III. CONCLUSION

Bowling argues that the Kentucky Supreme Court only After having reviewed the record, the briefs, and the compared Bowling’s sentence to other crimes where the death various earlier opinions in this case, and after oral argument, penalty was imposed, but should have compared Bowling’s we conclude that Bowling has not made out a claim for sentence to similar crimes where the death penalty was not habeas corpus relief, either by virtue of a single error or imposed. There is no clear support in Kentucky law for the through the cumulative effect of multiple errors. We also proposition that the Kentucky Supreme Court must also conclude that his claim for an evidentiary hearing should be consider those additional cases. In fact, Bowling notes this,

No. 01-5832 Bowling v. Parker 55

denied. We therefore AFFIRM the judgment of the district court.