                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                      File Name: 07a0174p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                        X
                                Petitioner-Appellant, -
 STEVE HENLEY,
                                                         -
                                                         -
                                                         -
                                                             No. 03-5891
            v.
                                                         ,
                                                          >
 RICKY BELL, Warden, Riverbend Maximum                   -
                                                         -
                                Respondent-Appellee. -
 Security Institution,

                                                         -
                                                        N
                         Appeal from the United States District Court
                       for the Middle District of Tennessee at Nashville.
                       No. 98-00672—Robert L. Echols, District Judge.
                                  Argued: November 28, 2006
                               Decided and Filed: May 15, 2007
                      Before: SILER, COLE, and COOK, Circuit Judges.
                                      _________________
                                           COUNSEL
ARGUED: Paul S. Davidson, WALLER, LANSDEN, DORTCH & DAVIS, Nashville, Tennessee,
for Appellant. Alice B. Lustre, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee,
for Appellee. ON BRIEF: Paul S. Davidson, WALLER, LANSDEN, DORTCH & DAVIS,
Nashville, Tennessee, Paul R. Bottei, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville,
Tennessee, for Appellant. Alice B. Lustre, OFFICE OF THE ATTORNEY GENERAL, Nashville,
Tennessee, for Appellee.
        COOK, J., delivered the opinion of the court, in which SILER, J., joined. COLE, J. (pp. 10-
14), delivered a separate opinion concurring in part and dissenting in part.
                                      _________________
                                          OPINION
                                      _________________
       COOK, Circuit Judge. Petitioner Steve Henley was convicted of two counts of murder and
aggravated arson in violation of Tennessee law and was sentenced to death. He filed a petition for
habeas corpus that alleged twenty-one errors in the state-court proceedings. The district court
denied the petition, but granted a Certificate of Appealability (COA) as to one issue, and we
permitted Henley to expand the COA to include five additional claims. For the reasons set forth
below, we affirm the judgment of the district court.


                                                1
No. 03-5891          Henley v. Bell                                                             Page 2


                                         I. Background
       The Tennessee Supreme Court found the following facts in Henley’s direct appeal, State v.
Henley, 774 S.W.2d 908, 912 (Tenn. 1989):
                In summary the evidence showed that Fred and Edna Stafford lived on Pine
       Lick Creek Road in Jackson County, just a short distance from the farm, owned by
       Henley’s family, where his grandmother lived. On the day of the Staffords’ death
       Henley had visited his grandmother and obtained some mechanical parts for some
       work he was doing. Flatt was with him. Earlier in the day they had been driving
       about, tending to business affairs of Henley’s. During that time they had consumed
       some beer and also had taken some drugs, referred to in the record as Dilaudids.
       According to Flatt, as they passed the Staffords’ residence Henley commented,
       “there was some people that lived on that road that owed his grandmother or
       grandfather some money, and they done him wrong, his grandparents wrong years
       before, and he was going to stop and see about collecting some money off them.”
       Henley let Flatt out of the truck just before he reached his grandmother’s house.
       When he returned five or ten minutes later he had a .22 rifle with him. They stopped
       fifty or seventy-five yards up the road where Henley loaded some more shells into
       the rifle. He also filled a plastic jug with gasoline from a five-gallon can he had in
       the back of the truck. They proceeded on toward the Stafford residence. When they
       reached there Mr. and Mrs. Stafford were standing on the left-hand side of the road
       looking at a small bridge where some construction work had recently been done.
       Henley stopped the truck, jumped out and told them, “I want your money, if you
       don’t give it to me this man in the truck here, he’s going to kill me.” He then
       directed them to go to the house. Mr. Stafford said, “Steve, if you want money or
       something, I got $80, maybe $100, you can have it.” He forced them on to the house
       at gunpoint and told Flatt to bring the .22 rifle as he followed behind them. When
       they got within 20 or 30 feet of the house he told Flatt to give him the rifle and go
       back to the truck and get the plastic jug of gasoline. Flatt did as directed. As he
       reached the porch he saw Henley begin to shoot. He first shot Mr. Stafford then
       turned and shot Mrs. Stafford a time or two. While she was laying on the floor
       moaning and groaning he threw the rifle to Flatt, took out his pistol and shot her
       again with the pistol. He told Flatt to pour out some of the gas. Flatt endeavored to
       do as he was told and poured out a small amount. When he could not finish Henley
       took the container of gas from him and finished pouring it out. He then directed Flatt
       to light it. When Flatt said he could not he struck the match and as the flames went
       up they ran to the truck.
               The house burned to the ground. The bodies of the Staffords were found in
       the ashes. All that remained of Mr. Stafford’s body was part of the right leg and the
       trunk area. The body of Mrs. Stafford was similarly burned. It was determined that
       Mr. Stafford died from a gunshot wound to the chest with the bullet passing through
       his heart. Mrs. Stafford’s death was caused by burns and inhalation of noxious gases
       from the fire. It was the opinion of the medical examiner that Mrs. Stafford lived a
       minute or longer after the fire began.
       In 1986, a Tennessee jury convicted Henley of two counts of first-degree murder and one
count of aggravated arson. The jury recommended a death sentence. The trial court sentenced
Henley to death for each murder and to twenty years imprisonment for the aggravated arson
conviction. The Tennessee Supreme Court affirmed Henley’s conviction and sentence on direct
appeal. Henley filed a state post-conviction petition in 1990, which the trial court denied. The
Tennessee Court of Criminal Appeals concluded that Henley did not receive the effective assistance
No. 03-5891           Henley v. Bell                                                            Page 3


of counsel during the sentencing phase of his trial and vacated his death sentence. The Tennessee
Supreme Court reversed, over a two-justice dissent, and affirmed the trial court’s denial of Henley’s
petition. Henley v. State, 960 S.W.2d 572 (Tenn. 1997). Henley filed a motion to reopen his state
post-conviction petition in 1999, and the trial court denied it. The Tennessee Court of Criminal
Appeals affirmed this decision.
         Henley filed a petition in the district court pursuant to 28 U.S.C. § 2254 in 1998, which
alleged twenty-one grounds for relief. The district court denied each claim and dismissed the
petition. The district court granted Henley a COA as to whether he procedurally defaulted his claim
that his accomplice testified falsely at his trial, but denied him a COA on all other issues. We
permitted Henley to expand his COA to include the following five issues: (1) whether women were
underrepresented in the selection of the foreperson for Henley’s grand jury in violation of his due
process rights and his right to a fair cross-section of the community serving on his jury; (2) whether
Henley’s counsel rendered ineffective assistance during the sentencing phase of trial; (3) whether
the trial court improperly instructed the jury that it had to unanimously find any mitigating factors
in sentencing Henley; (4) whether the prosecutor improperly appealed to the jury to “send a
message” as a reason for sentencing Henley to death; and (5) whether the prosecutor improperly
vouched for the testimony of Henley’s accomplice, Terry Flatt.
                                       II. Standard of Review
        We review de novo a district court’s legal conclusions and mixed questions of law and fact,
and we review its factual findings for clear error. Armstrong v. Morgan, 372 F.3d 778, 781 (6th Cir.
2004); Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999). Under the Antiterrorism and Effective
Death Penalty Act (AEDPA), a district court shall not grant a habeas petition with respect to any
claim that was adjudicated on the merits in the state courts unless the adjudication resulted in a
decision that (1) was contrary to, or involved an unreasonable application of, clearly established
federal law as determined by the Supreme Court; or (2) was based on an unreasonable determination
of the facts in light of the evidence presented to the state courts. 28 U.S.C. § 2254(d).
        Under the “contrary to” clause, a federal habeas court may grant the writ if the state court
arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the
state court decides a case differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412–13 (2000). Under the “unreasonable
application” clause, a federal habeas court may grant the writ if the state court identifies the correct
governing legal principle from the Supreme Court’s decisions but unreasonably applies that
principle to the facts of the petitioner’s case. Id. at 413.
        The court may look to lower courts of appeals’ decisions, not as binding precedent, but rather
to inform the analysis of Supreme Court holdings to determine whether a legal principle had been
clearly established by the Supreme Court. Hill v. Hofbauer, 337 F.3d 706, 716 (6th Cir. 2003).
Finally, the habeas petitioner has the burden of rebutting, by clear and convincing evidence, the
presumption that the state court’s factual findings were correct. See 28 U.S.C. § 2254(e)(1);
McAdoo v. Elo, 365 F.3d 487, 493–94 (6th Cir. 2004); Warren v. Smith, 161 F.3d 358, 360–61 (6th
Cir. 1998).
                                    III. Grand Jury Challenge
       Henley claims he is entitled to relief under the Due Process Clause based on the systematic
exclusion of women from the position of jury foreperson in Jackson County, Tennessee. He presents
evidence that from 1974 to 1994, a woman was never selected to serve as a grand jury foreperson;
Henley was indicted in 1985. At this time, the foreperson in Tennessee played an unusually
important role because he was selected independently by the judge as a thirteenth member of the
No. 03-5891              Henley v. Bell                                                                    Page 4


grand jury. See Campbell v. Louisiana, 523 U.S. 392, 402 (1998). Thus, the selection of the
foreperson affected the grand jury’s composition. In Campbell, the Supreme Court held that
defendants have standing to challenge racial discrimination in the composition of the grand jury used
to indict them. Although Campbell addresses race alone, Henley contends that this rule extends to
gender-based claims as well. In order to raise this claim, however, Henley must first show that he
may rely on the rule articulated in Campbell under the retroactivity doctrine of Teague v. Lane, 489
U.S. 288 (1989), which limits a petitioner’s ability to obtain relief based on new rules of criminal
procedure announced after his conviction became final. Henley raised this claim before the
Tennessee Court of Criminal Appeals in his state petition for post-conviction relief, and the court
denied it, finding that Henley could not rely on a retroactive application of Campbell under Teague.
AEDPA directs our inquiry to determine whether the Tennessee Court of Criminal Appeals’
conclusion was contrary to or an unreasonable application of clearly established federal law; thus,
our question is whether the Tennessee court’s application of Teague was unreasonable. We hold
that it was not.
         In making its determination, the state court cited favorably our decision in Coe v. Bell, 161
F.3d 320 (6th Cir. 1998), in which we discussed this issue at some length, concluding that
Campbell’s rule cannot be traced for purposes of retroactivity to either Peters v. Kiff, 407 U.S. 493
(1972) (plurality opinion), or Hobby v. United States, 468 U.S. 339 (1984). Although Coe cannot
control our disposition because of the strictures of AEDPA, we find its reasoning helpful.1 For
Henley to succeed, he must show that Hobby or Peters compelled the result in Campbell to such a
degree that any conclusion to the contrary would be unreasonable. As Coe suggests, however,
Campbell cannot be traced to Hobby or Peters so clearly. First, although the Campbell Court cited
Peters approvingly in concluding that a defendant can raise a due process challenge to the exclusion
of members of another race from a state grand jury, only three Justices in Peters based their decision
on both the Constitution and a criminal statute they read to provide defendants this entitlement. Coe,
161 F.3d at 353 (citing Peters, 407 U.S. at 497–98). The other three Justices in the six-Justice
majority concluded that the right stemmed from the statute alone. Id. (citing Peters, 407 U.S. at
505–07, 511, and Campbell, 523 U.S. at 400–01). Thus, because “‘the holding of the Court may be
viewed as that position taken by those Members who concurred in the judgments on the narrowest
grounds,’ Peters cannot be said to stand for the proposition that the constitution gave Peters . . . the
ability to raise a due-process challenge to the exclusion of Blacks (or women) from his grand jury.”
Id. (citing Marks v. United States, 430 U.S. 188, 193 (1977)). We find this reasoning sound, and
Henley cannot show the Tennessee appellate court’s decision concluding that Peters fails to
authorize the instant due process challenge is unreasonable or contrary to clearly established federal
law.
       As for Hobby, the Campbell court cited Hobby approvingly, but Hobby cannot be said to
have compelled Campbell’s result for retroactivity purposes. As Coe explained,
                 In Hobby, a white male defendant challenged his indictment because he said
        that the grand jury excluded Blacks and women. Because Hobby’s claim had been
        dismissed as a matter of law, the Supreme Court assumed that the violation had
        occurred and proceeded to consider if Hobby had any remedy. The Court began by
        noting that purposeful exclusion of women and Blacks from grand jury service was
        unconstitutional, without distinguishing between gender and race. In proceeding
        next to the question of remedy, therefore, the Court seemed to be assuming implicitly

        1
            Henley’s case is distinguishable from Coe in that Coe’s conviction became final before the Supreme Court
issued its decision in Hobby; nevertheless, the decision in Coe extensively examined the question whether Hobby
compelled the Court’s decision in Campbell. Any argument that Coe is inapposite because of this distinguishing fact
is misplaced as we look to Coe only for guidance in determining what law is clearly established. Hofbauer, 337 F.3d
at 716.
No. 03-5891           Henley v. Bell                                                              Page 5


       that Hobby had standing to raise his claim, both on gender and racial grounds,
       though it noted the narrow holding of Peters. In the end, the Court decided (for
       reasons that do not concern us) that Hobby was not entitled to a remedy. The
       Campbell Court read Hobby approvingly, as establishing some sort of due-process
       protection with regard to race (the only issue Campbell pursued), though it left the
       determination of the bounds of that protection, which it said were “still open,” for the
       lower court to determine on remand.
              We do not doubt that Hobby and Campbell can be read as extending
       due-process protection to men challenging the exclusion of women, though neither
       case provided detail on the extent of that protection. The casual manner in which
       these cases suggest such an extension does not mean, however, that the holdings
       followed necessarily from “existing precedent.” Indeed, the failure of Hobby even
       to mention the gender/standing question paved the way for conclusions such as the
       one we reached later in Ford v. Seabold.
Id. at 354 (citations omitted). Coe also noted that Justice Marshall issued a dissenting opinion from
the denial of certiorari in Ford v. Kentucky, 469 U.S. 984, 985–86 (1984), a case decided after
Hobby, in which he commented that the third-party standing issue was not definitively resolved and
that the Court had issued conflicting pronouncements on the issue. Id. In sum, Coe’s reasoning
convinces us that the Tennessee court’s conclusion was neither contrary to nor an unreasonable
application of Teague. Moreover, as Coe noted, when we examined this issue in Ford v. Seabold
we concluded that a defendant did not “have standing to challenge the composition of the grand jury
pool under the due process clause.” 841 F.2d 677, 688 (6th Cir. 1988). Seabold bolsters our
conclusion in that it provides a perspective on the state of federal law at a time quite relevant to our
determination of this issue: after Hobby, but before Campbell. See Hofbauer, 337 F.3d at 716.
         Henley also unpersuasively relies on Rose v. Mitchell for the proposition that an “indictment
returned by [an] unconstitutionally constituted grand jury [must] be quashed.” 443 U.S. 545, 551
(1979). Rose, however, concerned an African-American defendant challenging the exclusion of
African-Americans from the grand jury and relied on the principle that “[a] criminal defendant ‘is
entitled to require that the State not deliberately and systematically deny to members of his race the
right to participate as jurors in the administration of justice.’” Id. (quoting Alexander v. Louisiana,
405 U.S. 625, 628–29 (1972) (emphasis added)). Even if Rose reaches gender, Henley, a male,
could only challenge the exclusion of other males from the grand jury. Thus, Rose does not alter
our conclusion on Henley’s due process claim.
        Henley also raises a Sixth Amendment fair-cross-section challenge to the foreperson of his
grand jury. Regardless of the logical soundness of arguing that one person should represent a fair
cross-section of a community, the Supreme Court has never allowed defendants to challenge the
composition of their grand juries based on the Sixth Amendment. While some federal courts have
permitted a fair-cross-section challenge to a state grand jury, see, e.g., Murphy v. Johnson, 205 F.3d
809, 817–19 (5th Cir. 2000); O’Neal v. Delo, 44 F.3d 655, 662 (8th Cir. 1995); Ramseur v. Beyer,
983 F.2d 1215, 1236–37 (3d Cir. 1992), we may grant Henley relief only if this right was clearly
established by the Supreme Court as of 1999, and we hold that it was not.
                               IV. Ineffective Assistance of Counsel
       Henley argues his counsel’s failure to investigate his background and to present mitigating
evidence at his sentencing hearing deprived him of his constitutional right to effective assistance.
Henley can prevail only if the Tennessee Supreme Court’s denial of his ineffective-assistance claim
was unreasonable in light of clearly established Supreme Court precedent. Our review is essentially
limited to determining whether the Tennessee Supreme Court’s decision was contrary to or an
No. 03-5891             Henley v. Bell                                                                    Page 6


unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984). Putting aside questions
of counsel’s performance, we find nothing unreasonable in the Tennessee Supreme Court’s
conclusion that Henley was not prejudiced by counsel’s alleged errors. Therefore, we reject his
ineffective-assistance claim.
        Our review of the record confirms that it was not unreasonable for the Tennessee Supreme
Court to conclude that no prejudice resulted from counsel’s failure to call additional lay witnesses.
Henley’s grandmother gave a “favorable and detailed description” of Henley. Of course, as the state
appellate court pointed out, it is “possible” that the jury might have been hostile toward Henley’s
grandmother. Henley v. State, No. 01C01-9506-CC-00193, 1996 WL 234075, at *11 (Tenn. Crim.
App. May 9, 1996). But the other lay witnesses likely would not have painted a better picture in
light of “their limited relationship with Henley at the time of the murders” and “their personal
knowledge of his drug use at the time of the murders.” See Henley, 960 S.W.2d at 582. We cannot
say that it was unreasonable for the Tennessee Supreme Court to conclude that counsel’s failure to
call additional lackluster lay witnesses did not prejudice Henley at the mitigation phase.
        We similarly reject Henley’s argument that the state court unreasonably found no prejudice
in counsel’s failure to call a psychiatric expert to testify, in counsel’s words, that Henley “has
learning disabilities and dropped out of school, and was, at the time of the offense, suffering from
depression and/or acting out of character.” In Strickland itself, 466 U.S. at 676, 700, the Supreme
Court found no prejudice arising from counsel’s failure to call a psychiatric expert to testify that the
defendant was “chronically frustrated and depressed” due to his inability to support his family
financially. Henley’s alleged depression resulting from his bankruptcy is similar enough to that
found wanting in Strickland that it was not unreasonable to have treated Henley’s claim the same
way. The rest of the proposed expert testimony is so banal that it was not unreasonable to conclude
that there was no “reasonable probability” that it would have affected the outcome of the mitigation
phase. See Strickland, 466 U.S. at 694 (discussing the “reasonable probability” standard for
showing prejudice).
                            V. Procedural Default of Due Process Claims
        Henley believes that the prosecution gave Flatt favorable parole treatment in exchange for
his testimony against Henley. Henley’s habeas petition claims that his due process rights were
violated when Flatt falsely denied receiving these benefits and the prosecutor let this falsity go
uncorrected. He also argues, relatedly, that the prosecution violated his due process rights by
withholding evidence of this supposed agreement. Essentially, these arguments present claims under
Brady v. Maryland, 373 U.S. 83 (1963). Henley pressed neither theory before the state courts, and
any attempt to now seek post-conviction relief in the Tennessee courts would be procedurally barred.
Tenn. Code Ann. § 40-30-102.
        To overcome this procedural default and have these claims heard by a federal court, Henley
must establish that (1) he had good cause for failing to raise them before the state courts and (2) he
was prejudiced by the default. See, e.g., Edwards v. Carpenter, 529 U.S. 446, 451 (2000).2 A
petitioner who has procedurally defaulted a Brady claim satisfies the “cause and prejudice” test for
overcoming the default by satisfying the second and third prongs of the Brady test; that is, by
showing that “the reason for his failure to develop facts in state-court proceedings was the State’s
suppression of the relevant evidence,” and that “the suppressed evidence is ‘material’ for Brady
purposes.” Banks v. Dretke, 540 U.S. 668, 691 (2004); see also Strickler v. Greene, 527 U.S. 263,
282 (1999).

        2
           Henley could also overcome the procedural default without establishing “cause and prejudice” if he
demonstrated “a sufficient probability that [the] failure to review his federal claim will result in a fundamental
miscarriage of justice.” Edwards, 529 U.S. at 451. We do not think this standard is met here.
No. 03-5891            Henley v. Bell                                                             Page 7


        Henley cites Banks for the proposition that he had little responsibility to inquire into the facts
surrounding his Brady claims—that is, he “cannot be faulted for not catching a prosecutor in his or
her lies or withholding of evidence.” This mischaracterizes Banks. While Banks did reject a rule
that “defendants must scavenge for hints of undisclosed Brady material,” see id. at 695, it retained
the rule that good “cause” must be based on “events or circumstances ‘external to the defense.’” See
id. at 696 (quoting Amadeo v. Zant, 486 U.S. 214, 222 (1988)). That is, Henley still must
demonstrate that because of some external impediment over which he had no control, he cannot be
expected to have developed his Brady claim in state court. But he makes no attempt to do so.
        Henley points to the fact that Flatt was considered for early release in 1989 and paroled in
1991—despite disciplinary violations in prison—long before his 25-year sentence had run its term,
and earlier than similarly situated offenders tend to be paroled. He also points to various state
officials’ statements indicating that they supported, or at least did not oppose, Flatt’s early release.
Even assuming these circumstances suggest a surreptitious deal, Henley never explains why he did
not present them in state post-conviction proceedings—which pended more than six years after
Flatt’s parole release. For these reasons, we hold that Henley has failed to establish “cause”
sufficient to excuse the procedural default of his Brady claims.
                                   VI. Prosecutorial Misconduct
        Henley raises two prosecutorial misconduct claims: (1) that the prosecutor improperly
vouched for a witness during the guilt phase, and (2) that the prosecutor improperly asked the jury
to send a message during the sentencing phase. Because the Tennessee Supreme Court considered
each of these claims on direct appeal, Henley, 774 S.W.2d at 910–11, 913, we must assess whether
that court’s treatment of these claims was contrary to or an unreasonable application of clearly
established Supreme Court precedent.
       In Berger v. United States, the Supreme Court counseled United States Attorneys “to refrain
from improper methods calculated to produce a wrongful conviction.” 295 U.S. 78, 88 (1935).
Berger was, however, decided on direct review where the Court could “broad[ly] exercise [its]
supervisory power.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citing Donnelly v.
DeChristoforo, 416 U.S. 637, 642 (1974)). At this habeas stage, Henley must show that any
prosecutorial misconduct “so infected the trial with unfairness as to make the resulting conviction
a denial of due process.” Donnelly, 416 U.S. at 643.
         The Tennessee Supreme Court denied relief to Henley on direct review by holding that any
error in the prosecutor’s vouching for Flatt was harmless. Henley, 774 S.W.2d at 911. In response
to a credibility attack by defense counsel, the prosecutor commented, “I thought Flatt made one of
the best witnesses I’ve ever seen.” Id. The prosecutor also began to comment on the “plea bargain
process” but “was interrupted by the objection of defense counsel and he abandoned this line of
argument.” Id. Although the Tennessee Supreme Court analyzed these claims under state law, the
absence of prejudice spurred its rejection: the court labeled the first remark “innocuous” and viewed
the second as resulting from a tense atmosphere where “the argument was improper on both sides.”
Id.; see also United States v. Young, 470 U.S. 1, 13 (1985) (noting that invited error can affect how
a court determines an improper remark’s effect on the trial as a whole). In Darden, the most recent
United States Supreme Court precedent available to the Tennessee Supreme Court as it decided
Henley, the Court assessed the prosecutor’s argument as improper, some of it as invited, and on
balance, concluded Darden received a fair, if not perfect, trial. 477 U.S. at 182. Based on both the
limited nature of the prosecutor’s comment in this case, and in light of Darden and Young, the
Tennessee Supreme Court’s denial of relief for improper vouching was neither contrary to nor an
unreasonable application of Supreme Court precedent.
No. 03-5891           Henley v. Bell                                                            Page 8


        As for the claim arising from the sentencing hearing, the Tennessee Supreme Court held that
the prosecutor’s “reference to deterrence . . . is an area into which he may not venture.” 774 S.W.2d
at 913. That court then held, however, that it was “satisfied that the prosecutor’s comments did not
affect the jury’s sentencing decision.” Id. In Caldwell v. Mississippi, the Supreme Court held that
a prosecutor’s closing argument violated the Eighth Amendment by improperly referring to
automatic appellate review of death sentences. 472 U.S. 320, 336, 340 (1985). The Caldwell Court
distinguished Donnelly both by the nature of the comment and by noting that the trial judge in
Donnelly gave a curative instruction; in contrast, the trial judge in Caldwell openly agreed with the
prosecutor’s improper remark. Id. at 339–40. In light of Caldwell, vacatur of Henley’s sentence
was not required because the trial judge sustained the defense counsel’s objection and admonished
the prosecutor to discontinue that line of argument. We thus hold that the Tennessee Supreme
Court’s decision was neither contrary to nor an unreasonable application of Caldwell and other
United States Supreme Court precedent.
                                       VII. Jury Instruction
         Henley complains that the jury instructions and verdict forms were worded so as to require
the jury to unanimously find the existence of a mitigating factor. He attempted to raise this claim
in his state post-conviction proceedings, but the state courts (erroneously, it seems) concluded that
it had been raised on direct appeal and therefore refused to consider the claim. None of the post-
conviction courts ever invoked a procedural bar as to this issue, but none of the state courts
adjudicated the claim on its merits, either—in these circumstances, we review de novo. See Linscott
v. Rose, 436 F.3d 587, 592 (6th Cir. 2006).
        The jury must be unanimous in determining that an aggravating factor exists. See Ring v.
Arizona, 536 U.S. 584 (2002). But a state may not, consistent with the Eighth Amendment, require
that the jury be unanimous in determining that a mitigating factor exists. E.g., McKoy v. North
Carolina, 494 U.S. 433, 443–44 (1990); Mills v. Maryland, 486 U.S. 367, 373–75 (1988). In this
case, the jury instructions read:
       If the jury unanimously determines that at least one statutory aggravating
       circumstance . . . [has] been proven by the State beyond a reasonable doubt, and said
       circumstance . . . [is] not outweighed by any sufficiently substantial mitigating
       circumstances, the sentence shall be death . . . .
       If the jury unanimously determines that no statutory aggravating circumstance . . .
       [has] been proved by the State beyond a reasonable doubt, or if the jury unanimously
       determines that a statutory aggravating circumstance . . . [has] been proven by the
       state beyond a reasonable doubt, but that said circumstance . . . [is] outweighed by
       one or more mitigating circumstance, the punishment shall be life imprisonment . . . .
The verdict form for sentencing Henley to death read:
       We, the Jury, unanimously find the following listed statutory aggravating
       circumstance or circumstances . . . . Secondly, we, the Jury, unanimously find that
       there are no mitigating circumstances sufficiently substantial to outweigh the
       statutory aggravating circumstance or circumstances so listed above . . . .
The question here is whether either of these admonitions requires the jury to be unanimous in
determining that a mitigating factor exists. Mills established that if there is a “substantial
possibility” that the answer is yes, the court must remand for resentencing. 486 U.S. at 377. But
the plain language of both the instructions and the verdict form require unanimity as to the weighing
of aggravating and mitigating circumstances—not the existence of a mitigating circumstance. In
other words, these admonitions simply and unobjectionably require a unanimous verdict. We
No. 03-5891           Henley v. Bell                                                            Page 9


reviewed identical instructions and verdict forms in Coe and concluded the instructions and form
required “unanimity as to the results of the weighing, but this is a far different matter than requiring
unanimity as to the presence of a mitigating factor.” 161 F.3d at 338. As in Coe, “[n]othing in this
language could reasonably be taken to require unanimity as to the presence of a mitigating factor.
The instructions say clearly and correctly that in order to obtain a unanimous verdict, each juror
must conclude that the mitigators do not outweigh the aggravators.” Id. Thus, we hold that the
Tennessee court did not require the jury to be unanimous in finding the existence of a mitigating
factor, and we affirm the district court’s denial of this claim.
                                          VIII. Conclusion
       For the foregoing reasons, we affirm the district court’s judgment.
No. 03-5891           Henley v. Bell                                                           Page 10


                     _____________________________________________
                     CONCURRING IN PART, DISSENTING IN PART
                     _____________________________________________
        R. GUY COLE, Jr., Circuit Judge, concurring in part and dissenting in part. I agree with the
majority’s conclusion that (1) the trial court did not improperly instruct the jury that it had to
unanimously find any mitigating factors in sentencing Henley; (2) the prosecutor did not improperly
appeal to the jury to “send a message” as a reason for sentencing Henley to death; (3) the prosecutor
did not improperly vouch for the testimony of Henley’s accomplice, Terry Flatt; and (4) Henley
procedurally defaulted on his claim that Flatt falsely testified in exchange for an assurance of early
release from prison. I write separately because I disagree with the majority’s disposition of Henley’s
due-process challenge to the selection of his grand-jury foreperson and his ineffective-assistance-of-
counsel claim.
        The majority concludes that Henley’s due-process claim, alleging that women were under-
represented in the selection of his grand-jury foreperson, fails because Campbell v. Louisiana, 523
U.S. 392 (1998), announced a new rule of constitutional law. Campbell, however, does not
announce a new rule but rather is dictated by the Supreme Court’s prior decisions in Peters v. Kiff,
407 U.S. 493 (1972) (plurality opinion), and Hobby v. United States, 468 U.S. 339 (1984).
Moreover, the majority’s conclusion that it was not unreasonable for the Tennessee Supreme Court
to conclude that Henley was not prejudiced by his trial counsel’s deficient performance is incorrect.
Henley has shown that his trial counsel’s performance was both deficient and prejudicial under
Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, because I would grant Henley habeas
relief on his ineffective-assistance-of-counsel claim and would grant Henley an evidentiary hearing
on his due-process challenge, I respectfully dissent.
A. Due-Process Challenge To The Selection Of Henley’s Grand-Jury Foreperson
       Henley asserts a due-process challenge to the systematic exclusion of women, in Jackson
County, Tennessee, from the position of grand-jury foreperson. The Tennessee Court of Criminal
Appeals determined that Campbell declared a new rule, and the court therefore concluded that
Teague v. Lane, 489 U.S. 288 (1989), barred retroactive application of Campbell to Henley’s claim.
Both the Tennessee Court of Criminal Appeals and the majority erred in concluding that Campbell
declared a new rule.
        A conclusion that Campbell is dictated by precedent (and therefore does not announce a new
rule of constitutional law) is supported by the Supreme Court’s prior decisions in Peters, Hobby,
Rose v. Mitchell, 443 U.S. 545 (1979), and Powers v. Ohio, 499 U.S. 400 (1991). In the cases
leading up to Campbell, the Supreme Court repeatedly stressed its concern that discrimination, such
as the kind complained of by Henley, hurts all defendants regardless of their race or gender and
undermines the fair administration of justice.
        In Peters, for instance, where a white defendant claimed that his due-process rights were
violated because blacks were systematically excluded from both the grand jury that indicted him and
the petit jury that convicted him, the Court explained that the exclusion of blacks “from jury service
injures not only defendants, but also other members of the excluded class: it denies the class of
potential jurors the ‘privilege of participating equally . . . in the administration of justice,’ and it
stigmatizes the whole class . . . by declaring them unfit for jury service and thereby putting ‘a brand
upon them, affixed by law, an assertion of their inferiority.’” 407 U.S. at 499 (quoting Strauder v.
West Virginia, 100 U.S. 303, 308 (1880)).
No. 03-5891             Henley v. Bell                                                                  Page 11


        The Court’s concern with the integrity of the judicial system was also apparent in its decision
in Rose. In Rose, as in Peters, the Court expressed its concern that “[s]election of members of a
grand jury because they are of one race and not another destroys the appearance of justice and
thereby casts doubt on the integrity of the judicial process.” Rose, 443 U.S. at 555-56. Rose held
that two black defendants could bring an equal-protection challenge to their convictions based on
racial discrimination in the selection of the Tennessee grand jury and grand-jury foreperson that
indicted them for murder. In addressing the harm caused by such discrimination, the Court stated
that
        [t]he harm [from discrimination] is not only to the accused, indicted as he is by a jury
        from which a segment of the community is excluded. It is to society as a whole. The
        injury is not limited to the defendant—there is injury to the jury system, to the law
        as an institution, to the community at large, and to the democratic ideal reflected in
        the processes of our courts.
Id. (quoting Ballard v. United States, 329 U.S. 187, 195 (1946)) (internal quotation marks omitted)
(emphasis added).
        In Powers, the Court held that Powers, a white, male defendant, had standing to raise an
equal-protection objection to the prosecutor’s allegedly race-based exercise of peremptory
challenges to exclude black prospective jurors. 499 U.S. at 402. The Court stated that “[t]o bar
petitioner’s claim because his race differs from that of the excluded jurors would be to condone the
arbitrary exclusion of citizens from the duty, honor, and privilege of jury service.” Id. at 415. In
reaching its conclusion, the Court explained that it was not deviating from past precedent but rather
was “once again declin[ing] to reverse a course of decisions of long standing directed against racial
discrimination in the administration of justice.” Id. (quoting Cassell v. Texas, 339 U.S. 282, 290
(1950) (Frankfurter, J., concurring in judgment)).
        In Campbell, the Court reiterated that discrimination based on race “strikes at the
fundamental values of our judicial system.” 523 U.S. at 398 (quoting Rose, 443 U.S. at 556). The
Court in Campbell concluded that a white, male defendant had standing to object to discrimination
against blacks in the selection of his grand jury and grand-jury foreperson. In Campbell, the Court
again addressed its concern that discrimination in the selection of a grand jury or grand-jury
foreperson hinders the fair administration of justice and undermines the integrity of our judicial
system—a common thread running through the opinions preceding Campbell.
        Further, the decision in Campbell is dictated by the Supreme Court’s decision in Hobby and
Peters—the two cases the Court relied on in addressing Campbell’s due-process challenge. In
Peters, three justices agreed that a defendant, “whatever his race, . . . has standing to challenge the
system used to select his grand or petit jury, on the ground that it arbitrarily excludes from service
the members of any race, and thereby denies him due process of law.” 407 U.S. at 504. In Hobby,
the Court held that discrimination in the selection of a grand-jury foreperson, when that individual
is selected from a properly constituted grand jury, does not violate due process. 468 U.S. at 344.
In Hobby, unlike in Campbell, the duties of the foreperson where only “ministerial.”1 Id. Although
the Court in Hobby assumed without deciding the third-party-standing question , the Court in
Campbell nonetheless stated that its decision in Hobby “proceeded on the implied assumption that
a white defendant had standing to raise a due process objection to discriminatory appointment of a
federal grand-jury foreperson.” 523 U.S. at 401. Thus, the holding in Campbell is nothing more
than a logical extension of the Court’s assumption in Hobby, and is consistent with the Court’s prior

        1
           In Hobby, the Court assumed, but did not decide, that a white, male defendant had standing to challenge
discrimination against blacks and women. 468 U.S. at 342 (explaining that “[i]t is only the narrow question of the
remedy that we consider”).
No. 03-5891           Henley v. Bell                                                         Page 12


statements in Rose, Peters, Hobby, and Powers regarding the fair administration of justice. When
the Court in Campbell finally concluded that all defendants, regardless of their race or sex, have
standing to challenge discrimination against any individual in the selection of their grand or petit
jury, the Court did not break new ground. Because Campbell is nothing more than an extension of
the Court’s prior precedents, Teague does not bar its retroactive application.
        The majority relies on our prior decision in Coe v. Bell, 161 F.3d 320 (6th Cir. 1998), to
support its conclusion that Campbell was not dictated by precedent. In Coe, however, we did not
address whether Campbell declared a new rule because we were not required to do so to dispose of
Coe’s due-process claim. Coe’s conviction was final in 1984, before the Supreme Court’s decision
in Hobby, Powers, and Campbell. Coe, 161 F.3d at 328. We concluded that Coe did not have third-
party standing to bring his due-process claim because we declared that Hobby, decided after Coe’s
conviction became final, declared a new rule. Id. at 354. Moreover, statements we made in Coe
suggest that Campbell did not announce a new rule. In Coe, we stated that “[t]he Campbell Court
read Hobby approvingly, as establishing some sort of due-process protection with regard to race.”
161 F.3d at 354. We also stated that “[w]e do not doubt that Hobby and Campbell can be read as
extending due-process protection to men challenging the exclusion of women.” Id. These
statements support a conclusion that, at a minimum, the Court’s decision in Campbell was dictated
by Hobby.
        Further support for the conclusion that Campbell does not announce a new rule is found in
the Fifth Circuit’s decision in Peterson v. Cain, 302 F.3d 508 (5th Cir. 2002)—the only other circuit
to have addressed whether Campbell announced a new rule. Carter Paul Peterson’s conviction and
sentence became final in 1982. After the Supreme Court’s decision in Campbell, Peterson sought
habeas review in federal court, claiming that the selection process for his grand-jury foreperson in
Lafayette Parish, Louisiana, violated his constitutional due-process and equal-protection rights
because the process systematically excluded blacks. The Peterson court concluded that the
equal-protection portion of Campbell’s holding was dictated by the Supreme Court’s earlier
decisions in Powers and Rose. Id. at 512. According to the Fifth Circuit, “[t]here is no leap in logic
nor a significant difference between Powers and Rose v. Mitchell to Campbell.” Id. at 513. The
Peterson court explained that in Campbell
       [o]nce again, the Court’s concern is focused on the integrity of the judicial process
       in the selection of a grand jury foreperson. By applying rules established in prior
       cases, the Court conducted precisely the same analysis founded in maintaining
       judicial integrity as in Powers.
Id.
       The Fifth Circuit also concluded that the due-process portion of Campbell was dictated by
precedent, reasoning that the Court in Campbell only elaborated on the implied assumption the Court
made in Hobby. Specifically, the Fifth Circuit noted that in Campbell
       the foreperson was selected not merely to conduct ministerial duties, but was also
       selected to act as a voting member of the grand jury, a vote that directly impacted the
       defendant. To the extent that such a selection was made discriminatorily, it ran afoul
       of the Hobby implied assumption of due process. The Court’s decision in Campbell
       was therefore dictated by its opinion in Hobby.
Id. 513-514. In Peterson, the Fifth Circuit did not overlook our decision in Coe. The court noted
that this Court “did address the subject [of Campbell] . . . but did not resolve whether Campbell
stood for a new rule, under either equal protection or due process prongs.” Id. at 512 n.3. Further,
the Fifth Circuit, in a later unpublished decision, reiterated that the Supreme Court’s decision in
No. 03-5891           Henley v. Bell                                                            Page 13


Campbell was dictated by the Supreme Court’s earlier decisions in Powers, Rose, Hobby, and
Peters. See Crandell v. Warden, Louisiana State Penitentiary, 72 Fed. App’x. 48, 49 (5th Cir. July
11, 2003).
        Accordingly, because Campbell did not announce a new rule of constitutional law, but rather
was dictated by prior Supreme Court precedent, Campbell can be retroactively applied to Henley’s
claim. As a result, the Tennessee Supreme Court’s decision, that Henley lacks standing to bring his
due-process claim, is an unreasonable application of Teague. Thus, Henley is entitled to an
evidentiary hearing to determine whether his claim, that women where under-represented in the
selection of his grand-jury foreperson in Jackson County, Tennessee, from 1974 to 1994, is valid.
B. Ineffective Assistance of Counsel
        The majority also concludes that the Tennessee Supreme Court did not unreasonably apply
Strickland when it held that counsel’s alleged errors during the sentencing phase did not prejudice
Henley. I disagree and would grant Henley habeas relief on this claim.
         I am not alone in my conclusion that Henley’s counsel at sentencing was constitutionally
deficient: Three judges on the Tennessee Court of Criminal Appeals and two judges on the
Tennessee Supreme Court also reached the same conclusion. See Henley v. Tennessee, No. 01C01-
9506-CC-00193, 1996 Tenn. Crim. App. LEXIS 293, at *31-36 (May 9, 1996); Henley v. Tennessee,
960 S.W.2d 572 (Tenn. 1997) (Reid, J. & Birch, J., dissenting). At Henley’s post-conviction
hearing, Henley presented evidence that although several of his family members would have
testified on his behalf at his sentencing hearing, his trial counsel failed to speak to any of them about
such a possibility. Henley, 1996 Tenn. Crim. App. LEXIS 293, at *32; see also Henley, 960 S.W.2d
at 576-77. The Tennessee Court of Criminal Appeals noted that “[n]o psychological or psychiatric
evaluation was done on Henley . . . . There is no evidence from [Henley’s attorney’s] file or
otherwise that he investigated Henley’s educational background, employment history, or that he
spoke with members of the community familiar with Henley.” Henley, 1996 Tenn. Crim. App.
LEXIS 293, at *35. Further, the evidence that Henley’s attorney did provide at the sentencing
hearing was minimal: only Henley and his grandmother, who had already testified at trial, testified
in mitigation.
        The Supreme Court in Strickland explained that “counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations unnecessary.”
466 U.S. at 691. In a capital case, an attorney has a duty to speak to the defendant’s family about
the defendant’s background and about the possibility of them testifying at the sentencing hearing.
See Wiggins, 539 U.S. at 524 (explaining that in a capital case trial counsel must undertake “to
discover all reasonably available mitigating evidence and evidence to rebut any aggravating
evidence that may be introduced by the prosecutor”) (quoting ABA Guidelines for the Appointment
and Performance of Counsel in Death Penalty Cases 11.4.1(C) (1989)); Strickland, 466 U.S. at 691
(noting that “counsel has a duty to make reasonable investigations”). Moreover, had Henley’s
counsel conducted a proper investigation into Henley’s background, it may have revealed other
mitigating evidence that could have persuaded just a single juror to sentence Henley to life in prison
as opposed to death. Because there is no evidence that Henley’s attorney investigated Henley’s
background or spoke to his family members about testifying at Henley’s sentencing hearing, despite
their willingness to do so, the performance of Henley’s attorney fell below the standard for
“professionally competent assistance” required by Strickland. 466 U.S. at 690.
       Further, trial counsel’s failure to call Henley’s family members to testify coupled with
Henley’s mother’s refusal to testify were prejudicial. At Henley’s sentencing hearing, Henley’s trial
counsel attempted to call Henley’s mother as a witness. After being called, Mrs. Henley first asked
to speak to Henley’s attorney. After a brief recess, Mrs. Henley did not testify and Henley’s
No. 03-5891           Henley v. Bell                                                         Page 14


attorney instead called Henley’s grandmother to the stand. At his post-conviction hearing, Henley
argued that he was prejudiced because the jurors saw his mother’s refusal to testify. According to
Mrs. Henley, she refused to testify at the sentencing hearing because Henley’s attorney had not
contacted her about testifying and she did not understand the purpose for her testimony or what she
was expected to say. Mrs. Henley did explain that had she been properly prepared she would have
testified and her testimony would have been positive. Henley, 960 S.W.2d, at 576. Specifically,
Mrs. Henley would have testified “about her son’s life, her love for him, and her belief that he would
not have committed the crimes ‘if he was at his right mind.’” Id.
         The Tennessee Court of Criminal Appeals concluded that Henley’s evidence established
prejudice resulting from his counsel’s deficient performance: “We do not think it is assuming too
much to conclude that a jury is going to be prejudiced against a defendant upon that person’s own
mother refusing to testify on his . . . behalf.” Henley, 1996 Tenn. Crim. App. LEXIS 293, at *32.
Because of the special relationship between a mother and child, not having one’s own mother testify
on their behalf, when one’s life is at stake, would surely affect a juror’s decision. As to the
testimony of Henley’s other family members, the Tennessee Supreme Court concluded that the
testimony was weaker than the grandmother’s testimony, because of their limited relationship with
Henley, and cumulative of the grandmother’s testimony, because Henley’s other family members
would have provided no new insight into Henley’s life. However, having multiple family members
plead for a defendant’s life humanizes the defendant and makes it more likely that at least one juror
will spare his life. See generally Hardwick v. Crosby, 320 F.3d 1127, 1163 (11th Cir. 2003)
(explaining that a defendant’s attorney must conduct a proper investigation to “find witnesses to help
humanize the defendant, given that a jury has found him guilty of a capital offense”); Mayes v.
Gibson, 210 F.3d 1284, 1288 (10th Cir. 2000) (noting that “mitigation evidence affords an
opportunity to humanize and explain”). In this context, where the defendant is charged with a
heinous crime, positive cumulative testimony benefits the defendant because the testimony of
several family members all pleading for the defendant’s life has a greater impact on the jury than
the testimony of a single individual, regardless of how favorable that person’s testimony is. Thus,
had Henley’s trial counsel not been deficient, “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. Accordingly, because the Tennessee Supreme Court unreasonably applied
Strickland, I would grant Henley habeas relief on this claim.
