                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                File Name: 13a0329p.06

              UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                              _________________


                                              X
                      Petitioner-Appellant, -
 RONALD MICHAEL CAUTHERN,
                                               -
                                               -
                                               -
                                                   No. 10-5759
         v.
                                               ,
                                                >
                                               -
                      Respondent-Appellee. -
 ROLAND COLSON, Warden,
                                              N
                 Appeal from the United States District Court
              for the Middle District of Tennessee at Nashville.
           No. 3:04-cv-1100—Aleta Arthur Trauger, District Judge.
                               Argued: April 30, 2013
                      Decided and Filed: November 14, 2013
               Before: COLE, CLAY, and ROGERS, Circuit Judges.

                                _________________

                                    COUNSEL
ARGUED: Laurence E. Komp, Manchester, Missouri, for Appellant. Andrew Hamilton
Smith, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee,
for Appellee. ON BRIEF: Laurence E. Komp, Manchester, Missouri, Paul J. Bruno,
Nashville, Tennessee, for Appellant. Andrew Hamilton Smith, OFFICE OF THE
TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. Michael
J. Benza, CASE WESTERN RESERVE UNIVERSITY SCHOOL OF LAW, Cleveland,
Ohio, for Amicus Curiae.
        CLAY, J., delivered the opinion of the court, in which COLE, J., joined., and
ROGERS, J., joined in part. ROGERS, J. (pp. 34–38), delivered a separate opinion
dissenting from Parts III. B. and VI. B. 1. of the majority’s opinion.




                                          1
No. 10-5759           Cauthern v. Colson                                                      Page 2


                                      _________________

                                            OPINION
                                      _________________

        CLAY, Circuit Judge. Petitioner, a convicted murderer and rapist sentenced to
death in Tennessee, sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d). The
district court denied his petition in its entirety, but granted Petitioner a certificate of
appealability on one claim—that the state improperly excluded mitigation evidence at
his resentencing hearing. This Court expanded the certificate to cover four additional
claims. Petitioner now appeals on those issues, which are the prosecutor’s misconduct
in rebuttal at Petitioner’s resentencing; ineffective assistance of counsel at his
resentencing; suppression of favorable, material evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963); improper review of the exclusion of mitigation evidence
at the resentencing; and unconstitutional vagueness in the Tennessee aggravating factor
applied at resentencing.

        For the reasons set forth in this opinion, we AFFIRM the district court with
respect to all of Petitioner’s claims except for his claims of prosecutorial misconduct and
ineffective assistance of counsel, REVERSE the district court with respect to those two
claims and GRANT a conditional writ of habeas corpus.

                                        BACKGROUND

        I.       Factual Background1

        Captain Patrick Smith and his wife, Captain Rosemary Smith (“Patrick” and
“Rosemary”) were officers in the United States Army Nurse Corps, stationed at Fort
Campbell, Kentucky and living at 352 Hampshire Drive in Clarksville, Tennessee. On
January 9, 1987, when neither Patrick nor Rosemary reported for duty, Major Kathleen
Campbell and a sergeant drove to the Smiths’ home, and arrived there at about 11:00


        1
          Because the facts underlying each of Petitioner’s claims are unrelated, or from different
procedural phases of the case, some facts are discussed in the section on procedural history or in the
section that addresses the particular claim to which they are relevant.
No. 10-5759            Cauthern v. Colson                                                         Page 3


a.m. They noticed that both of the Smiths’ cars were in the garage, and the glass on the
backdoor had been broken from the outside. Major Campbell went to a neighbor’s house
and phoned the police.

         When the police arrived, they found evidence of forcible entry, and the house
ransacked. They also found the Smiths dead in separate bedrooms, each apparently
killed by strangulation. Officer John Nichols of the Clarksville Police Department
(“CPD”) was one of the officers on the scene. Ronnie M. Cauthern (“Petitioner”), and
Brett Patterson (“Patterson”) were ultimately arrested for the murders, along with Eric
Barbee (“Barbee”), who was a friend of Patterson’s, though Barbee was never implicated
in the murders. Patterson and Cauthern were convicted of the murders, as well as other
crimes related to the incident. The Tennessee Court of Criminal Appeals entered the
following findings of fact:2

         [T]he body of Patrick Smith lying face down on the bed in the master
         bedroom, facing 90 degrees counter clockwise from his sleeping position,
         and wrapped in the top sheet. He had been strangled to death, apparently
         with a length of 880 military cord. The bed was broken and tilted
         indicating a violent struggle had taken place.

Cauthern v. State, 145 S.W.3d 571, 580 (Tenn. Crim. App. 2004) (quoting State v.
Cauthern, 778 S.W.2d 39, 40 (Tenn. 1989)).

         The body of Rosemary Smith was discovered in another bedroom; her
         underclothes were next to her body and her nightgown was in the corner
         of the room. A scarf had been tied around her neck and knotted, with a
         small vase inserted between the nape of the neck and the knot, creating
         a tourniquet . . . Credit cards, electronic gear and a videocassette recorder
         appeared to be missing from the house. Police found costume jewelry in
         the house, but no jewelry of value.
Id. (quoting State v. Cauthern, 967 S.W.2d 726, 730 (Tenn. 1998)).

         2
           Under 28 U.S.C. § 2254(e)(1), “a determination of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness
by clear and convincing evidence.” Petitioner has not presented evidence that demonstrates any dispute
over the facts of the underlying incident, and accordingly, these facts are presumed correct. Thompson v.
Bell, 580 F.3d 423, 434 (6th Cir. 2009). As is discussed more fully in the section on procedural history,
there are two relevant state court decisions: the Tennessee Supreme Court’s decision in 1998, denying
Petitioner’s direct appeal of his resentencing hearing, and the Tennessee Court of Criminal Appeal’s
decision in 2004, which denied Petitioner’s collateral challenges.
No. 10-5759        Cauthern v. Colson                                                 Page 4


       The police found the telephone line had been cut near its entry into the
       outside wall of the house. A shoe print was found on the back door that
       matched Patterson’s shoe. In a statement that he gave police he admitted
       kicking the back door once or twice, but said it would not open so they
       obtained a hammer and broke the pane of glass nearest the door knob to
       gain entry. The house was ransacked, chest of drawers open, luggage
       and clothing scattered about. In the master bedroom, the police found a
       piece of paper upon which was written defendant Cauthern’s name,
       address and telephone number. Rosemary Smith’s sister testified she was
       familiar with both her sister’s and her brother-in-law’s handwriting and
       the information about Cauthern was not written by either of them. The
       cumulative evidence [established] that defendant and the Smiths had
       been acquainted for approximately a year at the time of the murders, that
       he had performed some work on Patrick’s Mercedes and perhaps some
       additional work at their home, although he said in one of his statements
       that he had never been inside their home until the evening of 8 January
       1987.

Id. (quoting Cauthern, 778 S.W.2d at 40.)

       James Phillip Andrew testified [at both trials] that he was with the
       defendant, Ronnie Cauthern, and Brett Patterson shortly after the
       offenses. While watching television, they all saw an account of the
       Smiths’ murders in which a reward was offered for information.
       Cauthern told Andrew that he had worked for the Smiths in the past and
       that he broke into their home and made the woman get into the closet,
       while he and Patterson strangled the man. Cauthern told Andrew that he
       raped the woman once and that he had stolen a wedding ring, a VCR, and
       some credit cards . . . .
       Joe Denning, Andrew’s roommate, also testified that Ronnie Cauthern
       admitted his role in the killings. Cauthern told Denning that he had cut
       the telephone lines to the house, had broken in through the back door,
       had shined flashlights in the victims’ faces in order to wake them, and
       had placed Rosemary Smith in a closet. He admitted to Denning that he
       had raped the woman and poured wine coolers over her, and then
       attempted to kill her. He said he tried to strangle the woman by tying a
       scarf around her neck, but did not have the strength to kill her, so he used
       the vase to create a tourniquet....
       Cauthern’s former girlfriend, Jackie Pigue, testified that on Thursday
       night, January 8, 1987, Cauthern and Patterson were “solemn” and
       “quiet.” The next day Cauthern gave her a watch and a wedding ring.
       He told her that someone owed him money and he was holding the items
No. 10-5759      Cauthern v. Colson                                                 Page 5


      as collateral. When she later saw a news report regarding the murders
      and Cauthern’s arrest, she went to the police and gave them the jewelry.
      Cauthern and Patterson were arrested on January 12, 1987. Search
      warrants were obtained for Cauthern’s car and Patterson’s house.
      Among the items found were the victims’ credit cards, identification
      cards, receipts, checks and two key rings containing keys which unlocked
      the Smiths’ home and automobiles. The police also found two ski masks,
      several handguns, a roll of 880 military cord, and Patrick Smith’s jacket.
      Initially, Cauthern gave several statements to the police, all of which
      were admitted into evidence at the sentencing hearing. In the first
      statement, he denied knowing the Smiths or anything about the murders.
      In a later statement, which was recorded and transcribed, Cauthern
      admitted that he was in the Smiths’ home, but denied that he had raped
      or murdered anyone. Claiming that he and Mrs. Smith were having an
      affair, he contended that she had called and invited him to come to the
      Smith house and enter through the back door. He said that both he and
      Patterson had consensual sex with Mrs. Smith, and he denied that he
      participated in the murders, raped the victim, or removed any items from
      the house.
      [At the 1995 resentencing trial], Cauthern testified that he was nineteen
      years old at the time of the murders. He stated that he never knew his
      birth father and saw his birth mother approximately three times during
      his entire life. His birth mother died, and he was adopted by his maternal
      grandmother and step-grandfather who moved to Clarksville in 1973.
      The defendant attended Northeast High School, but dropped out to care
      for his grandmother who had Parkinson’s disease, so that his
      step-grandfather could continue to work. He was married at the age of
      eighteen and at the time of the hearing, had an eight-year-old son.
      Although he had divorced his son’s mother, he continued to see his son
      every three to five months. Since his incarceration he had remarried.
      His wife, who lived in Canada, was not at the hearing. He testified that
      he helps his parents by writing letters for them.
      Cauthern also said he had completed the Graduate Equivalency
      Examination and a paralegal course since being incarcerated, and he
      serves as a teacher’s aide to the unit prison teacher. He has achieved “A”
      status at Riverbend Maximum Security Institution for privilege purposes,
      which is the highest status available for a prisoner. He introduced letters
      of appreciation from a correctional officer and the prison teacher. A Unit
      Review Panel Hearing form containing positive comments concerning
      his behavior and attitude was also introduced. He makes extra money by
      drawing greeting cards and selling them to other prisoners. Charles
      Tracy, a teacher for the Department of Correction, testified that he chose
No. 10-5759           Cauthern v. Colson                                                      Page 6


        Cauthern as a teacher’s aide because he gets along well with others and
        has good communication skills.

Id. (quoting State v. Cauthern, 967 S.W.2d at 730–31).

        II.      Procedural History

        Petitioner was indicted on February 3, 1987. The indictment had eight charges:
first-degree felony murder for the death of Patrick, first-degree felony murder for the
death of Rosemary, first-degree burglary, aggravated rape, rape, third-degree burglary,
grand larceny, and armed robbery.3 Petitioner was tried by jury with Patterson in
February 1988. On February 23, 1988, after about four hours of deliberations, the jury
returned guilty verdicts on the murder, burglary, and aggravated rape charges.

        The penalty phase of the trial began that day and ended on February 25, 1988.
The jury returned a sentence of death for Petitioner on both of the murder counts, and
sentences of life imprisonment for Patterson on the murder charges. On March 18, 1988,
Petitioner was formally sentenced to death for the two counts of felony murder, as well
as forty years’ imprisonment on the aggravated rape count, and ten years’ imprisonment
for the first-degree burglary. Petitioner filed his notice of appeal on May 20, 1988. The
Tennessee Supreme Court4 affirmed the felony murder convictions but remanded the
sentences of death because the trial court failed to suppress portions of Petitioner’s third
statement to the police. The United States Supreme Court denied the petition for a writ
of certiorari. Tennessee v. Cauthern, 495 U.S. 904 (1990).

        Venue for the resentencing was transferred to Gibson County, Tennessee (from
Montgomery County) because of concerns over publicity in the original venue. At
Petitioner’s 1995 resentencing hearing, the jury heard testimony from Patrick’s mother,
Constance Smith, about Patrick and Rosemary’s background and aspirations. The jury


        3
         The counts of third-degree burglary, grand larceny, and armed robbery were unrelated to the
Smith murders and were not tried in the same trial.
        4
           Because this was a capital case, Petitioner had the right of direct review by the Tennessee
Supreme Court, and therefore by-passed review by the Tennessee Court of Criminal Appeals. Cauthern
v. State, 145 S.W.3d at 579 n.1.
No. 10-5759           Cauthern v. Colson                                                       Page 7


also heard testimony from Officer Nichols, about the crime scene, and from a doctor
about the injuries sustained by the victims. Detective Cockarell testified that there had
been a violent struggle. Other detectives testified as to statements given by Petitioner.5
The final state witness was Andrew, who repeated his earlier testimony regarding
Petitioner boasting of the rape. The defense called Charles Tracy, a teacher who worked
with the Tennessee Department of Correction, who knew Petitioner because Petitioner
worked as a teacher’s aide for him, and Petitioner himself testified. During rebuttal, the
prosecutor gave an inflammatory speech, reproduced in the relevant section below,
which Petitioner contends gives rise to a claim for habeas relief.

        At the conclusion of the resentencing hearing, Petitioner was sentenced to life
in prison for the murder of Patrick, and to death for the murder of Rosemary. That
sentence was affirmed by the Tennessee Court of Criminal Appeals on December 2,
1996, and by the Tennessee Supreme Court on March 23, 1998. State v. Cauthern, 967
S.W.2d 726 (Tenn. 1998). Certiorari to the United States Supreme Court was again
denied on November 2, 1998. Cauthern v. State, 525 U.S. 967 (1998). Petitioner filed
a pro se petition for post-conviction relief in January 1999. He later amended that
pleading with the assistance of counsel. That petition was denied after evidentiary
hearings. The Tennessee Court of Criminal Appeals affirmed the lower court’s
judgment in February 2004, and the Tennessee Supreme Court declined to hear
Petitioner’s appeal in August 2004. During the post-conviction hearings:

        [T]he petitioner presented testimony from twelve witnesses. Three
        family members, two family friends, and the petitioner’s former wife
        testified about the petitioner’s upbringing and social history. The two
        attorneys who had previously represented the petitioner recounted their
        investigative efforts, pretrial preparation, and trial strategy on the
        petitioner’s behalf. Two former law enforcement officers testified to
        Brett Patterson’s prior criminal history and his suspected involvement in
        the rape and strangulation death of a teenage female in Los Alamos, New
        Mexico. An expert in clinical and forensic psychiatry testified about his
        evaluation of the petitioner and the resulting diagnosis. Last, the Deputy
        Consul General to the German Consulate in Atlanta, Georgia testified as

        5
          Some of the testimony at the sentencing was relevant only to claims that Petitioner no longer
pursues, and has been omitted.
No. 10-5759        Cauthern v. Colson                                                Page 8


       an expert on the subjects of German citizenship, the petitioner’s
       genealogy that could qualify him for German citizenship, and the
       requirements of the Vienna Convention when a German national is
       arrested in the United States. In rebuttal to the petitioner’s experts, the
       state presented testimony from a psychologist who had been retained by
       the prosecution to perform a forensic evaluation of the petitioner and
       from a senior counsel with a Washington, D.C. law firm whose practice
       focused on public and private international law. The petitioner did not
       testify in support of his bid for post-conviction relief.

Cauthern v. State, 145 S.W.3d 571, 582–83 (Tenn. Crim. App. 2004).

       Petitioner, having been granted counsel, filed the instant petition on June 3, 2005,
raising 27 claims for relief. The district court denied the petition in its entirety, on
March 31, 2010, and declined to issue a certificate of appealability with respect to any
of the claims. On May 28, 2010, the district court declined to amend its judgment, but
did issue a certificate of appealability as to the question of “whether the Tennessee
Supreme Court’s application of a harmless error test to the improper exclusion of
mitigating evidence at the 1995 resentencing was contrary to, or involved an
unreasonable application of, clearly established federal law.” (R. 180, Memorandum
Opinion, May 28, 2010, at 1.) (Claim 2 in the petition)

       Upon Cauthern’s motion, this Court granted an expanded certificate of
appealability on August 16, 2011. That certificate added the following issues to review:
(a) “whether the prosecutor engaged in misconduct during closing argument at the
resentencing hearing” (Claim 1); (b) “whether the State withheld favorable evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny” (Claim 4);
(c) “whether trial counsel rendered Cauthern ineffective assistance at his 1995
resentencing hearing” (Claim 5) and (d) whether the heinous, atrocious, or cruel
aggravator weighed by the jury was unconstitutional. (Claim 7).
No. 10-5759          Cauthern v. Colson                                                    Page 9


                                        DISCUSSION

        I.       Standard of Review

        Where a district court has denied a habeas petition, and issued a certificate of
appealability, “we review the district court’s legal conclusions de novo and its factual
findings for clear error.” Hanna v. Ishee, 694 F.3d 596, 605 (6th Cir. 2012) (citing Smith
v. Mitchell, 567 F.3d 246, 255 (6th Cir. 2009)). The district court’s findings of fact are
clearly erroneous when “we are left with the definite and firm conviction that a mistake
has been committed.” United States v. Canipe, 569 F.3d 597, 600 (6th Cir. 2009) (citing
United States v. Ellis, 497 F.3d 606, 611 (6th Cir. 2007)).

        II.      AEDPA6

        Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
a federal court may not grant a writ of habeas corpus with respect to any claim
adjudicated on the merits in state court unless the state adjudication:

        (1) resulted in a decision that was contrary to, or involved an
        unreasonable application of, clearly established federal law, as
        determined by the Supreme Court of the United States; or
        (2) resulted in a decision that was based on an unreasonable
        determination of the facts in light of the evidence presented in the state
        court proceeding.

28 U.S.C. § 2254(d). A federal court may not issue the writ “simply because it
concludes in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly. Rather, that application must
also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “[C]learly
established federal law, as determined by the Supreme Court of the United States” refers
to the holdings, rather than dicta, of the decisions of the Supreme Court. Howes v.
Fields, ___ U.S. ___, 132 S. Ct 1181, 1187 (2012) (quoting Williams, 529 U.S. at 362).



        6
         The petition was filed on June 3, 2005, which is after the effective date of AEDPA, and
accordingly, AEDPA standards govern the petition. See Lindh v. Murphy, 521 U.S. 320, 326–27 (1997).
No. 10-5759             Cauthern v. Colson                                                           Page 10


         A decision that is “contrary to” clearly established federal law occurs where “the
state court arrives at a conclusion opposite to that reached by this Court on a question
of law . . . [or] confronts facts that are materially indistinguishable from a relevant
Supreme Court precedent and arrives at [the opposite] result.” Williams, 529 U.S. at
405. Furthermore, an unreasonable application must be distinguished from an incorrect
application. Harrington v. Richter, 562 U.S. ___, 131 S. Ct. 770, 785 (2011) (quoting
Williams, 529 U.S. at 410). A state court decision which is merely incorrect, rather than
unreasonable, is still entitled to deference by a federal court in a habeas proceeding. Id.
As a result, the more general the rule, the greater the leeway accorded to a state court’s
decision under federal habeas review. Id. at 786.

         Under AEDPA this Court reviews the last reasoned state court decision. See
Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct. 1388, 1402 (2011) (“Section 2254(d)
applies even where there has been a summary denial.”). Even when a state court does
not provide significant analysis, this Court must show significant respect to state court
decisions:

         Even in the case of a summary denial, when the state court has not fully
         explained the rationale for its decision, the reviewing “habeas court must
         determine what arguments or theories could have supported the state
         court’s decision; and then it must ask whether it is possible [that]
         fairminded jurists could disagree that those arguments or theories are
         inconsistent with the holding in a prior [Supreme Court] decision.”

Gagne v. Booker, 680 F.3d 493, 514 (6th Cir. 2012) (en banc) (quoting Pinholster,
131 S.Ct. at 1402).7




         7
           In this case, the question of what constitutes the last reasoned state court decision is slightly
more complicated than in an ordinary habeas proceeding. Petitioner seeks federal habeas review of some
claims that were presented to the Tennessee Court of Criminal Appeals during his collateral challenge to
his conviction and sentence, as well as to claims that were only raised during his direct appeals. Neither
party claims that Petitioner failed to exhaust any of his claims, and so the last reasoned state court decision
may be different with respect to certain claims, depending on the availability of state collateral relief.
No. 10-5759         Cauthern v. Colson                                              Page 11


       III.    Prosecutorial Misconduct

               A.      The Prosecutor’s Misconduct at the Resentencing Hearing

       During closing arguments at the 1995 resentencing hearing Assistant Attorney
General Steve Garrett gave a rebuttal that included the following language:

       Yes, we are asking for the death penalty. Why? Why should Ronnie
       Cauthern die? I once heard an interpretation of the Lord’s Prayer.
       “Deliver us from evil,” originally translated and actually read. “Deliver
       us from the evil one”—far more personally, far more graphic, and far
       more intense—the evil one.
       In the 1960’s, the Rolling Stones came out with a song. The refrain after
       each chorus was, “Pleased to meet you. Hope you guess my name.” And,
       I suggest to you it was a song about the evil one appearing in person
       throughout the ages in many different guises. Mr. Poland says civilized
       society—in a civilized society, we don’t kill. But in civilized society, we
       must address— we must stand up to, we must confront the realities of our
       daily existence and our daily survival not only of ourselves but of our
       children and their children. It came to dawn on me after I thought about,
       “Please to meet you, hope you guess my name”—that on January the 9th,
       1987, the evil one descended upon Patrick and Rosemary Smith, and the
       evil one is smart, the evil one is skilled, the evil one is wily, and the evil
       one is manipulative. A simple little demonstration of that, ladies and
       gentleman, is this. The evil one appeared today and produced greeting
       cards—“Merry Christmas,” “Happy Holidays.” But on January the 8th,
       1987, the evil one appeared at the door of 351Hampshire Drive, a home
       not unlike yours in a neighborhood not unlike yours—the evil one
       appeared there in disguise—a mask, a black jacket, a pistol, strangling
       rope, and the evil one is capable of taking advantage of what was
       available inside their house. Yes, whether you like it or not—whether
       you volunteered or not, you are engaged in the ultimate battle in
       everyday combat with the evil one, and he’s not going to go away. He
       appeared in Minnesota in the form of Jeffrey Dahmer. He appeared in
       Union, South Carolina, and on January the 9th, he appeared at the door
       of Patrick and Rosemary Smith. You cannot negotiate with the evil one,
       ladies and gentlemen. You cannot deal in good faith with the evil one.
       You have got to destroy and destroy, or he and his benefactors will
       destroy you. He’ll destroy us. He’ll destroy our children. The evil one
       took the name of Ronnie Cauthern on that day. That was his name, and
       he’s beyond redemption. He’s beyond redemption. There is no treatment
       for this individual posing in a mask and taking human form. There is no
       treatment for this person. This person has been around through all ages
No. 10-5759         Cauthern v. Colson                                            Page 12


       and will appear again. You cannot cure him. Don’t try to save him.
       Engage him in combat and destroy him. Do your duty. When you open
       that paper and you find that the State has carried out your instruction, you
       will have scaled the ramparts at least one time, and you will have been
       a part of bringing back peace and tranquility in your community and in
       our community, and you will send a message to the evil one. You will
       send a message that we stand ready—armed, and ready to fight for all in
       the world, for everything that you believe in, for the sanctity of your
       home, the blessing of seeing your children reach adulthood and have
       your grandchildren, and you will take a step and leave a legacy to your
       children that they someday will not have to grapple with what the Smiths
       had to deal with and what Karen Rivetna and her mother have to deal
       with.
       “Holiday Greetings”—a time for loved ones to get together. Horrible
       chaos has been reaped and racked on this family. I’m asking you to do
       your duty. Stand tall. Thank you.

(R. 27, Return Addendum 5, Vol. 4, State Rebuttal at Resentencing, at 463–65, Dec. 7,
2005.) Petitioner claims that this rebuttal amounted to prosecutorial misconduct, and
seeks habeas relief on that basis.

               B.      Analysis

       In reviewing a claim for habeas relief based on prosecutorial misconduct in a
closing argument, “[t]he relevant question is whether the prosecutors’ comments so
infected the trial with unfairness as to make the resulting conviction a denial of due
process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974) (internal quotation marks omitted)).
“Moreover, the appropriate standard of review for such a claim on writ of habeas corpus
is ‘the narrow one of due process, and not the broad exercise of supervisory power.’”
Id. (quoting Donnelly, 416 U.S. at 642) (analyzing a habeas claim prior to the enactment
of AEDPA). “Past decisions of [the Supreme Court] demonstrate that the touchstone of
due process analysis in cases of alleged prosecutorial misconduct is the fairness of the
trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982).
“[T]he cardinal rule [is] that a prosecutor cannot make statements ‘calculated to incite
No. 10-5759            Cauthern v. Colson                                                          Page 13


the passions and prejudices of the jurors.’” Gall v. Parker, 231 F.3d 265, 315 (6th Cir.
2000) (quoting United States v. Solivan, 937 F.2d 1146, 1151 (6th Cir. 1991)).

         The Tennessee Supreme Court found that the remarks did not unfairly prejudice
Petitioner. They found that “while . . . the prosecution’s argument was patently
improper and caution prosecutors against similar argument in the future, we nevertheless
hold that in this case, the argument did not affect the sentence or render the jury’s
decision arbitrary or unreliable under the Eighth and Fourteenth Amendments to the
United States Constitution.” Cauthern, 967 S.W.2d at 738. The district court found that
this decision did not contradict clearly established law, nor was it an unreasonable
application of law to the facts of this case.

         We, however, find that the Tennessee Supreme Court’s decision was an
unreasonable application of clearly established federal law.8 The full reasoning of the
state court was that:

         [T]he argument, while highly improper, did not affect the verdict to the
         prejudice of the defendant. The remarks in question were only a portion
         of the prosecutor’s summation. Although no curative measures were
         taken by the trial court or the prosecution, this was primarily because the
         defense failed to object. We suggest, however, that this is a case in
         which the sua sponte intervention by the trial court would have been
         appropriate. It appears that the prosecution’s motivation in making the
         argument was to respond to defense counsel’s assertion that the
         defendant should not receive a death penalty in a civilized society and
         also to rebut the defendant’s evidence of his rehabilitative potential.
         Finally, the misconduct must be viewed together with the overall record


         8
           Petitioner, in his reply brief, argues that because of the Supreme Court’s decision in Parker v.
Matthews, 567 U.S. ___, 132 S. Ct. 2148 (2012), AEDPA no longer controls this case, and he is entitled
to de novo review, because the Tennessee Supreme Court’s decision applied the Sixth Circuit’s multi-step
analysis for prosecutorial misconduct. The argument is that Parker overturned this Circuit’s multi-step
analysis, and so the Tennessee Supreme Court’s decision, which tracks that analysis, was in violation of
clearly established law, because the state court should have applied the Darden approach. But the
Tennessee Court did analyze this claim pursuant to Darden; the Sixth Circuit approach purportedly
criticized in Parker was a means of addressing one of the prongs under Darden. In addition, eliminating
this Circuit’s approach to Darden would not benefit Petitioner, because this Circuit has far more extensive
case law governing the flagrancy of prosecutorial arguments. Finally, there is no basis for Petitioner’s
claim that the change in law entitles him to de novo review. The state court was not entitled to violate
clearly established federal law, but unless its application of the now-defunct (for the purposes of habeas
review) Sixth Circuit test for flagrancy was itself a violation of clearly established federal law, then this
Court cannot overturn that decision. In Parker, the criticism of this Court’s reasoning was simply that this
Court used its own precedents as the basis for clearly established law.
No. 10-5759        Cauthern v. Colson                                             Page 14


       and the overwhelming strength of the State’s case. The evidence
       supported the aggravating factor relied on by the State, as well as a
       finding that this factor outweighed the evidence of mitigating factors.

Cauthern, 967 S.W.2d at 737–38 (internal citations and footnotes omitted). However,
in light of Supreme Court precedent, this conclusion is entirely unreasonable.

       The prosecutor’s remarks were, as both the district court and the Tennessee
Supreme Court found, clearly improper. Respondent also agrees that the prosecutor’s
remarks at sentencing were improper. And there is no reasonable conclusion that one
can draw from these remarks except that a jury would be inflamed by them. The
prosecutor’s remarks amounted to a litany of the kinds of remarks that courts disfavor.
The prosecutor compared Petitioner to two of the most widely despised criminals of the
then-recent past, one of whom was a serial killer who had tortured and raped his victims
before murdering and dismembering them, and the other of whom was a child-murderer
who after drowning her two sons triggered a nationwide manhunt when she fabricated
a racially charged story that blamed the crime on a nonexistent black man. These
remarks were solely inflammatory; and while we do not diminish the seriousness of
Petitioner’s crime, the Smith and Dahmer cases bore no relevant similarity to the crimes
committed by Petitioner.

       In addition, the prosecutor made biblical references, repeatedly referring to
Petitioner as “the evil one,” and referring to the Lord’s Prayer. These types of references
are particularly inappropriate in a sentencing proceeding, because they can create the
inference that the death penalty is mandatory through their appeal to a higher authority,
and because they allow a jury to delegate its own responsibility for the imposition of the
sentence. See, e.g., Romine v. Head, 253 F.3d 1349, 1366 (11th Cir. 2001); Sandoval
v. Calderon, 241 F.3d 765, 777–78 (9th Cir. 2000); Coe v. Bell, 161 F.3d 320, 351 (6th
Cir. 1998). The prosecutor made references that would encourage the jury to personally
identify with the victims, and to feel as though failing to return sentence of death would
endanger the families of the jury. The prosecutor included an appeal to the duty of the
jury, which is a form of argument that the Supreme Court has expressly criticized. See
United States v. Young, 470 U.S. 1, 18 (1985). While not binding as clearly established
No. 10-5759        Cauthern v. Colson                                             Page 15


law, we note that the remarks here bear some resemblance to those in Bates v. Bell,
402 F.3d 635, 648 (6th Cir. 2005), cert. denied, 126 S. Ct. 163 (2005) (“The prosecutors
made it a theme of their summation that the jury’s failure to sentence Bates to
death would be akin to ordering the execution of Bates’s next victim. Voting for a life
sentence for this ‘rabid dog’ was equivalent to putting a gun in his hand.”).

        The Tennessee Supreme Court also found that the remarks were only a part of
the prosecutor’s summation, but as Petitioner points out, up to 80% of the rebuttal was
dedicated to improper argument, and the rebuttal was the final thing the jury heard
before it met to decide upon a sentence. Ultimately, the question of whether Petitioner
is entitled to relief hinges on the likelihood that the remarks prejudiced the defendant
such that we can no longer be confident in the jury’s sentence of death. Bates, 402 F.3d
at 641 (“Rather than determining whether a constitutional error would have pushed a
jury from a ‘not guilty’ verdict to a ‘guilty’ verdict, we must attempt to discover whether
the constitutional error influenced the jury’s decision between life and death.”). Based
on the number of abuses and the egregiousness of the prosecutor’s conduct, we are
convinced that no reasonable jurist could be confident in the result as returned by the
jury.

        While the district court found that the record supported the Tennessee’s Supreme
Court’s findings that the remarks did not unduly influence the jury, we see no reasoned
basis for that conclusion anywhere in the opinion. The district court noted that there was
a great deal of evidence about Petitioner’s guilt, but the weight of the evidence of guilt
is completely and totally irrelevant to this inquiry. See Gregg v. Georgia, 428 U.S. 153,
190–92 (1976) (discussing the advantages of bifurcated sentencing procedures in capital
cases). One would hope that when a state court convenes to determine whether a
defendant should be put to death that there would no longer be any lingering question
of that defendant’s guilt. The district court also noted that the trial court gave the
curative instruction that statements by lawyers are not evidence. But that generic
instruction would likely have been given regardless of what the prosecutor said; were
we to accept the reasoning of the district court on this point, then there would never be
No. 10-5759        Cauthern v. Colson                                            Page 16


a viable claim for prosecutorial misconduct, because the most basic of instructions would
cure the potential for an inflamed jury. The district court further noted that the
prosecutor’s remarks were invited by the defense attorney, without explaining why that
would matter with respect to our confidence in the decision reached. The district court
also pointed out that the jury was unlikely to have been convinced that Petitioner was
actually the devil. While that may be true, its real relevance is that it highlights the
outlandish nature of the prosecutor’s remarks. And one would not need to believe that
Petitioner was himself the devil in order to have been improperly inflamed such that the
verdict cannot be trusted.

       Respondent argues (and the district court found) that because the jury returned
only one sentence of death, for the murder of Rosemary, and returned only a sentence
of life imprisonment for the murder of Patrick, we can assume that the jury was not
improperly inflamed, because the prosecutor’s remarks applied with equal force to both
murders. But this argument is irrational; there were differences between the two
murders, and it is equally plausible that given the high burden for imposing a death
sentence, the remarks were what tipped the scale in favor of imposing such a sentence
for the murder of Rosemary. Petitioner presented mitigating evidence, and there was a
co-defendant, who was at least equally culpable, who was not sentenced to death. Given
these facts, and given the extensive and egregious nature of the prosecutor’s remarks,
we cannot be confident in the result returned by the jury. Based on the quantity of
prosecutorial misconduct, as well as the severity of that misconduct, no reasonable jurist
could be confident that Petitioner was accorded a fair proceeding. Accordingly, we
grant the petition for a writ of habeas corpus on the basis of prosecutorial misconduct.

       IV.     Petitioner’s Eddings Claim

       Petitioner argues that he should have been allowed to introduce a letter from his
son as mitigation evidence at his resentencing. The letter read in full:
No. 10-5759         Cauthern v. Colson                                              Page 17


        Dear Dad,
        I Love you Dad. I hope I come again gen [sic]. Some time. we went to
        Chuck [sic] Cheese. We went to Wall [sic] Mart and we had fun.
        Love always, Ryan

State v. Cauthern, 967 S.W.2d 726, 738 (Tenn. 1998). The letter was excluded because
the trial court found that “it was of negligible probative value and was cumulative to the
other evidence presented.” Id. The Tennessee Supreme Court, in its review of that
decision, found that the failure to admit the evidence was harmless error, id. at 738–39,
and it is that decision that is reviewed by this Court. The district court found that the
state court decision not to admit the evidence was neither contrary to, nor an
unreasonable application of, clearly established federal law, but later granted a certificate
of appealability on the narrower of question of whether the Tennessee Supreme Court’s
holding that this was subject to harmless-error analysis violated the Constitution.

        Petitioner alleges that the Tennessee Supreme Court’s decision was an
unreasonable application of clearly established law because it evaluated this claim
through the rubric of harmless-error analysis, rather than regarding the error as a
structural flaw requiring resentencing. At the outset, we note that no party appears to
contest that the original decision not to admit the evidence was an error. There is no
question that a defendant subject to the death penalty is permitted to introduce a wide
range of evidence in mitigation. Failure to permit the sentencer to consider mitigation
is a violation of the Eighth and Fourtheenth Amendments to the federal Constitution.
Cauthern, 967 S.W.2d at 738 (citing McKoy v. North Carolina, 494 U.S. 433, 442
(1990)). As the Supreme Court found in Eddings v. Oklahoma, 455 U.S. 104 (1982),
“the sentencer [may not] refuse to consider, as a matter of law, any relevant mitigating
evidence.” Id. at 114 (extending the rule from Lockett v. Ohio, 438 U.S. 586 (1978), that
barred states from precluding mitigation evidence by statute) (emphasis in original).
“The Constitution requires States to allow consideration of mitigating evidence in
capital cases. Any barrier to such consideration must therefore fall.” McKoy 494 U.S.
at 442 (1990) (emphasis in original).
No. 10-5759         Cauthern v. Colson                                             Page 18


        In this case, the state court reasoned that while the trial court had erred in
refusing to allow the evidence in, there was no basis upon which to overturn the
conviction, because that error was harmless. It was harmless because the crucial points
that a sentencing jury could glean from the evidence were permitted as mitigation
evidence; the jury knew that Petitioner had a son who visited him regularly, and had seen
a picture of Petitioner with his son. Cauthern, 967 S.W.2d at 739. The lower court had
further instructed the jury that they could consider the fact that Petitioner had a minor
son as a mitigating factor. Id. Therefore, the evidence did not affect the jury’s verdict.
Id. Petitioner now challenges the district court’s determination that this was neither an
unreasonable application of, nor contrary to, clearly established law because, he claims,
the Tennessee Court of Criminal Appeals should have found that the failure to admit the
evidence was structural, and thus required resentencing.

        There is no clearly established federal law requiring states to review trial court’s
decisions regarding admission of mitigating or aggravating factors as structural defects.
While the Supreme Court has remanded death sentences on the basis of the exclusion of
relevant mitigation evidence, it has never categorically stated that it is improper for a
state court to analyze such a claim as a matter of harmless error. The strongest possible
precedent for Petitioner’s argument is the Supreme Court’s decision in Skipper v. South
Carolina, 476 U.S. 1 (1986). In that case, the Supreme Court found that:

        The exclusion by the state trial court of relevant mitigating evidence
        impeded the sentencing jury’s ability to carry out its task of considering
        all relevant facets of the character and record of the individual offender.
        The resulting death sentence cannot stand, although the State is of course
        not precluded from again seeking to impose the death sentence, provided
        that it does so through a new sentencing hearing at which petitioner is
        permitted to present any and all relevant mitigating evidence that is
        available.

Id. at 8 (citation omitted). Furthermore, “[u]nder our decisions, it is not relevant whether
the barrier to the sentencer’s consideration of all mitigating evidence is interposed by
statute, by the sentencing court, or by an evidentiary ruling.” Mills v. Maryland,
486 U.S. 367, 374 (1988).
No. 10-5759         Cauthern v. Colson                                             Page 19


        While those cases present a relatively strong argument for Petitioner, it is not
enough to overcome the AEDPA standard. In those cases, the issue was that the
mitigation evidence had been excluded entirely; the jury had not been able to consider
the argument for mitigation at all, or had (as in Mills) misunderstood its directions such
that it chose not to consider the evidence. Therefore, in those cases, harmless error
analysis was impossible. See Davis v. Coyle, 475 F.3d 774–75 (6th Cir. 2007)
(discussing possible remedies when a court improperly excludes mitigating evidence).
But in this case, the Court of Criminal Appeals found that the only relevant piece of
information was cumulative. Here, the Tennessee Courts were able to review the
determinations and find that the error was harmless, given that the jury heard evidence
as to the same mitigation factor to which the excluded evidence would have gone.

        In addition, the Supreme Court has repeatedly held that states can review
mitigation decisions on the basis of harmless error review when the issue is the weighing
of aggravating and mitigating factors. See Parker v. Dugger, 498 U.S. 308, 319 (1991);
Clemons v. Mississippi, 494 U.S. 738, 752 (1990) (“Even if under Mississippi law, the
weighing of aggravating and mitigating circumstances were not an appellate, but a jury,
function, it was open to the Mississippi Supreme Court to find that the error which
occurred during the sentencing proceeding was harmless.”)

        Finally, it should be noted that the federal statute authorizing review of a federal
death sentence specifies that “[t]he court of appeals shall not reverse or vacate a sentence
of death on account of any error which can be harmless, including any erroneous special
finding of an aggravating factor, where the Government establishes beyond a reasonable
doubt that the error was harmless.” 18 U.S.C. § 3595(c). It would be strange to find that
the federal Constitution demands a particular form of review for state court errors
regarding mitigation evidence when it does not demand the same on direct appellate
review of federal death sentences.

        Accordingly, the state court decision with respect to the entry of this mitigation
evidence did not violate clearly established law when it applied harmless error analysis
to the lower court’s evidentiary ruling.
No. 10-5759            Cauthern v. Colson                                                       Page 20


         V.       Petitioner’s Brady Claim

         Petitioner claims that the state courts erred in failing to reverse his conviction on
the basis that the state withheld material exculpatory evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1967). Specifically, Petitioner claims that there were three
pieces of information that should have been turned over to him: a police report from
January 23, 1987 prepared by Detective R.J. DiFiore, which addressed an interview with
James Andrew, a witness for the prosecution; the fact that Andrew had received money
from the police in exchange for his statement to the police; and finally, the fact that
Andrew’s car had been vandalized after Petitioner was arrested.9

         The police report memorialized the original statement given to the police by
Andrew. According to the report, Eric Barbee, a friend of Patterson’s, had come to
Andrew’s home, and told Andrew to contact Patterson’s attorney to report that Patterson
had stayed in the car while Petitioner committed the rape and murders, and to further
report that he had not seen Petitioner with Patterson on the night of the murders.
Petitioner alleges that the prosecution also suppressed evidence that Andrew had
contacted the police expecting to receive a $5,000.00 reward, and did in fact receive
some amount of money. Finally, Petitioner alleges that the prosecution suppressed
evidence that Andrew’s car had been vandalized, sometime after Petitioner was arrested
and after Barbee had contacted Andrew. The Tennessee Court of Criminal Appeals
found that while the evidence was favorable to Petitioner, and had been suppressed,
Cauthern v. State, 145 S.W.3d 571, 621 (Tenn. Crim. App. 2004), this evidence was not
material; because Petitioner had not shown that had it been disclosed to him, there was
a reasonable probability that the result of either the trial or the resentencing would have



         9
          Andrew’s testimony at the original trial mentioned various admissions by Petitioner regarding
the rape and murder. In addition, as the district court stated:
         Andrew was the State’s final witness at the 1995 resentencing hearing. Although
         Andrew’s testimony in 1988 about the murders . . . had faded by the time of the 1995
         resentencing hearing, he repeated his earlier testimony that the petitioner admitted
         having raped Rosemary, adding that the petitioner viewed raping her as a “great trophy,”
         and that he was “proud of it.”
(R. 167, Mar. 31, 2010, Opinion, at 27.)
No. 10-5759            Cauthern v. Colson                                                          Page 21


been different. Id. The district court found that the state court’s determination did not
give rise to habeas relief, and declined to grant the writ on the basis of the alleged Brady
violations.

         Under Brady, a defendant’s rights under the Due Process Clause are violated
when a state suppresses material exculpatory information. Brady v. Maryland, 373 U.S.
83, 87 (1963). The Supreme Court has stated that the elements of a Brady claim are:
“The evidence at issue must be favorable to the accused, either because it is exculpatory,
or because it is impeaching; that evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene,
527 U.S. 263, 381–82 (1999). In this case, the state court found that the evidence was
favorable and had been suppressed, but was not material.10 Cauthern, 145 S.W.3d at
619. Accordingly, the court declined to reverse either Petitioner’s conviction or sentence
on the basis of Brady violations.

         To determine if evidence is material, courts must use the standard of reasonable
probability; if there is a reasonable probability that, had the evidence been turned over,
the underlying proceeding would have had a different result, then the evidence is
material. Youngblood v. West Virginia, 547 U.S. 867, 870 (2006). “The question is not
whether the defendant would more likely than not have received a different verdict with
the evidence, but whether in its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence.” Strickler, 527 U.S. at 289–90 (quoting
Kyles v. Whitley, 514 U.S. 419, 434 (1995)) (internal quotation marks and citations
omitted). Additionally, a court examining the materiality of evidence under Brady
examines the evidence in its totality, rather than as a series of individual items. Kyles,
514 U.S. at 436–37.




         10
           The Tennessee Court of Appeals specifically held that “the state does not earnestly contest the
two findings [that the state suppressed the evidence], although it does argue that some of the information
seemed to be available to both parties.” Cauthern, 145 S.W.3d at 620. The court did not challenge the
lower court’s finding with respect to suppression of the evidence, nor did it find that evidence of vandalism
was ineligible for Brady treatment on that ground.
No. 10-5759           Cauthern v. Colson                                                      Page 22


         Petitioner alleges that this evidence was material because it could have been used
to impeach Andrew’s testimony at both the original trial and the resentencing hearing.11
During state collateral proceedings, the Tennessee Court of Criminal Appeals found that
the evidence was immaterial, because even if Andrew’s credibility had been completely
undermined, the verdict would have remained intact. This was in part because Petitioner
was convicted under the felony-murder rule, and accordingly, there was no need for the
state to prove that Petitioner had himself killed the Smiths. Therefore, even without
Andrew’s testimony as to Petitioner’s admissions, there was sufficient proof of
Petitioner’s guilt to support the verdict. Cauthern, 145 S.W.3d at 620. It further
reasoned that the testimony as to Barbee’s attempt to influence Andrew was irrelevant
because Andrew gave a statement to police before Barbee contacted him, and in any
event, Andrew’s testimony did not negate Patterson’s involvement in the crimes, which
was the reason Barbee contacted him. Finally, even without evidence of Andrew’s
monetary reward, the resentencing jury declined to impose a death penalty for one
killing, and the distinguishing factor of the other killing was that the victim was tortured,
a topic to which Andrew’s testimony had no relevance. Id. at 621.

         Petitioner presents no substantive argument that the state court’s decision
violated clearly established law. His most compelling argument is that because his claim
at sentencing related to relative culpability between him and Patterson, the evidence that
Patterson attempted to tamper with the witness was material to the jury’s determination
of greater relative culpability. But even had that evidence come in, the state court’s
judgment would still have been supported by another witness’ account that Petitioner
had raped Rosemary. And Petitioner cites no cases in support of his argument, nor can
the author find any supporting Supreme Court precedent for the contention that relative
culpability gives rise to a definite inference of materiality under Brady.

         Furthermore, although Andrew’s discussion of Petitioner’s boasts about killing
Rosemary might have influenced the jury to impose a sentence of death, it was not the


         11
            Andrew did not testify at the post-conviction evidentiary hearing, but the parties agreed to
stipulate to what he would have said.
No. 10-5759         Cauthern v. Colson                                            Page 23


only evidence supporting that sentence. Petitioner does not show any clearly established
law that would suggest that his inability to impeach Andrew would have affected the
jury’s decision given the overwhelming physical evidence that Rosemary was tortured.
Because Andrew’s testimony at the resentencing was relatively brief, and there was
overwhelming evidence as to the key points of his testimony, the Tennessee court’s
finding that his impeachment would not have undermined confidence in the outcome is
not reversible under AEPDA’s deferential standard of review.

       Accordingly, the decision of the district court to deny Petitioner’s claim for
habeas relief under Brady is affirmed.

       VI.     Ineffective Assistance of Counsel

               A.      Standard of Review

       The standard of review for this claim, as well as the governing law under
AEDPA is the same as provided in the earlier section of this decision; however, it should
be noted that the Supreme Court has made clear that claims under Strickland are
extremely difficult under AEDPA:

       Surmounting Strickland’s high bar is never an easy task. . . . Even under
       de novo review, the standard for judging counsel’s representation is a
       most deferential one. . . .
       Establishing that a state court’s application of Strickland was
       unreasonable under § 2254(d) is all the more difficult. The standards
       created by Strickland and § 2254(d) are both highly deferential, and
       when the two apply in tandem, review is doubly so . . . . [T]he question
       is not whether counsel’s actions were reasonable. The question is
       whether there is any reasonable argument that counsel satisfied
       Strickland’s deferential standard.

Richter, 131 S. Ct. at 787–88 (citations and internal quotation marks omitted).
No. 10-5759         Cauthern v. Colson                                           Page 24


               B.      Petitioner’s claim of ineffective assistance of counsel

       Petitioner’s next claim is that his counsel was ineffective because it failed to
adequately investigate or present his claims for mitigation.         The district court
summarized these claims as failure to:

       1) present testimony from his step-siblings; 2) present testimony from
       family friends and the petitioner’s ex-wife; 3) retain investigative and
       expert assistance and present expert testimony; 4) investigate Patterson’s
       background 5) cross-examine Andrew adequately; 6) challenge
       Denning’s testimony about the wine coolers when no physical evidence
       or expert testimony had been presented to support his testimony;
       7) comply with the ABA standards for defense counsel in a capital case;
       8) explain or present the petitioner’s life history, character and
       background, or explain the crime, i.e., present mitigating evidence
       persuasively, or object to the trial court’s ruling that the jury could not
       consider Patterson’s life sentence as mitigating evidence; and 9) present
       available mitigating evidence, thereby undermining the confidence in the
       integrity of the petitioner’s death sentence.

(R. 167, Mar. 31, 2010, Opinion, at 69.)

       The question of ineffective assistance of counsel is analyzed pursuant to the two-
part test established in Strickland v. Washington, 466 U.S. 668 (1984). Petitioner must
show that counsel’s performance was objectively unreasonable, and that he was
prejudiced because of this ineffective assistance.

       Counsel’s performance is deficient where it falls below an objectively reasonable
standard. Strickland, 466 U.S. at 686–87; Richter, 131 S. Ct. at 787. “A court
considering a claim of ineffective assistance must apply a ‘strong presumption’ that
counsel’s representation was within the ‘wide range’ of reasonable professional
assistance.” Richter, 131 S. Ct. at 787 (quoting Strickland, 466 U.S. at 689). Petitioner
bears the burden of overcoming the “presumption that the challenged conduct might be
considered sound trial strategy.” Hanna, 694 F.3d at 612. That is to say, Petitioner must
show that counsel made errors “so serious that counsel was not functioning as the
counsel guaranteed the defendant by the Sixth Amendment.” Richter, 131 S. Ct. at 787
(internal quotation marks omitted).
No. 10-5759            Cauthern v. Colson                                                      Page 25


       “To establish Strickland prejudice a defendant must ‘show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Lafler, 132 S. Ct. at 1384 (quoting Strickland,
466 U.S. at 694). “‘A reasonable probability is a probability sufficient to undermine
confidence in the outcome.’” Richter, 131 S. Ct. at 787 (quoting Strickland, 466 U.S. at
694). “Counsel’s errors must be so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.” Id. at 787–88 (internal quotation marks omitted).

                  1.       Petitioner’s Claim of Ineffective Assistance Due to Counsel’s
                           Failure to Present Testimony of His Step-Siblings

       Petitioner’s first claim for ineffective assistance of counsel was that his attorney
failed to present testimony at his sentencing hearing from Petitioner’s step-siblings as
to his abusive childhood. Three of his step-siblings, Melinda Cauthern Allen, Roy
“Bud” Cauthern, Jr., and Eveann Cauthern Palmer, later testified at a post-conviction
evidentiary hearing.12 Their testimony detailed a litany of abuse, mostly inflicted by


       12
            The Tennessee Court of Appeals described Petitioner’s family background at some length:
       The petitioner was born in Tennessee on September 5, 1967. His biological parents were
       Raymond Huhn, a German citizen, and Christine Tatteryn Huhn, a Canadian citizen.
       During Christine Huhn’s pregnancy, Raymond Huhn was arrested for burglary and
       imprisoned in California. Needing a place to live, Christine Huhn contacted her
       mother-in-law, Dagmar Huhn Cauthern, who lived in Tennessee and who invited
       Christine Huhn to stay with the Cauthern family.
       Dagmar Huhn’s husband, Roy Cauthern, Sr., had served in the military during World
       War II. Evidently, while he was stationed in Germany, he met his future wife, a German
       citizen who ultimately became a casualty of the Allied bombings of that country. Little
       is known of Dagmar Huhn’s life in Germany other than giving birth to one child,
       Raymond. Many years after the surrender of Germany and Japan, Dagmar Huhn
       immigrated to the United States and renewed her acquaintance with Roy Cauthern, Sr.
       He had been recently widowed in 1962, and he was a single parent to four children:
       Melinda, Mary Louise, Eveann, and Roy Cauthern, Jr. In February of 1963, Dagmar
       Huhn and Roy Cauthern, Sr. were married.
       Christine Huhn gave birth in 1967 to the petitioner while she was living with the
       Cautherns. When the petitioner was approximately six weeks old, Dagmar Cauthern
       prevailed upon Christine Huhn to return to California to divorce Raymond Huhn. When
       Christine Huhn left, Dagmar Cauthern then reported that Christine had abandoned her
       child, which allowed Dagmar and Roy Cauthern to officially adopt the petitioner. The
       petitioner first learned of his adopted status when he was a teenager and discovered his
       birth certificate.
       By the time of the post-conviction hearings in 2000 and 2001, the petitioner’s biological
       parents were deceased. His adoptive father, Roy Cauthern, died in 1997, and his
       adoptive mother/biological grandmother, Dagmar Cauthern, was suffering from
       Parkinson’s Disease and living in a nursing home. His stepsister, Mary Louise,
No. 10-5759           Cauthern v. Colson                                            Page 26


Dagmar Cauthern, Petitioner’s grandmother. That abuse included physical abuse with
brooms, belts and other implements. The abuse was largely unpredictable. There was
also emotional abuse, including the isolation of the children from friends, and verbal
insults. In addition, home discipline was rigidly enforced with the threat of physical
violence and deprivation of food.

        The Tennessee Court of Criminal Appeals found that this did not give rise to a
claim for ineffective assistance of counsel, because Petitioner failed to show that his trial
counsel’s representation was deficient, and because there was no prejudice. The
deficiency argument was based largely upon the fact that:

        [T]he post-conviction court found that background family information
        was not readily available to trial counsel. From the testimony and
        demeanor of the petitioner’s step-siblings, former wife, and the Popes,
        the court was convinced that Roy Cauthern “would have done everything
        in his power to prevent witnesses from offering any testimony which did
        not cast Dagmar in a favorable light” and that he would not have
        “permitted his children to discuss family issues with trial counsel, an
        expert witness, or a jury.” As for the Popes and Bud and Melinda
        Cauthern, the court did not believe that they would have assisted with the
        petitioner’s defense unless Roy Cauthern had consented. According to
        the court, the only lay witnesses “who even arguably would have
        cooperated [were] EveAnn and Lucinda.”

Cauthern v. State, 145 S.W.3d at 606 (alterations in original).

        Before this Court, Petitioner contends—and the state does not meaningfully
contest—that the failure of counsel to investigate his family constituted deficient
performance. An unexplained failure to investigate possible mitigation evidence is
objectively unreasonable conduct by an attorney in a capital case. See Wiggins v. Smith,
539 U.S. 510, 521–22 (2003). As the Supreme Court found in Strickland:

        [S]trategic choices made after thorough investigation of law and facts
        relevant to plausible options are virtually unchallengeable; and strategic
        choices made after less than complete investigation are reasonable


        succumbed to leukemia in 1980, but the other step-siblings were alive.
Cauthern v. State, 145 S.W.3d at 583.
No. 10-5759         Cauthern v. Colson                                             Page 27


        precisely to the extent that reasonable professional judgments support the
        limitations on investigation. In other words, counsel has a duty to make
        reasonable investigations or to make a reasonable decision that makes
        particular investigations unnecessary. In any ineffectiveness case, a
        particular decision not to investigate must be directly assessed for
        reasonableness in all the circumstances, applying a heavy measure of
        deference to counsel’s judgments.

Strickland, 466 U.S. at 521–22 (quoted with approval in Wiggins); see also Porter v.
McCollum, 558 U.S. 30, 39–40 (2009). But here, there is no evidence anywhere in the
record that explains counsel’s failure to speak to Petitioner’s step-siblings. The district
court summarized defense counsel’s explanations as:

        Attorney Poland, lead defense counsel at both the 1988 trial and 1995
        resentencing hearing, testified at the post-conviction evidentiary hearing
        that he did not contact the petitioner’s step-siblings, but that the
        petitioner also did not bring anything to his attention that would have
        caused him to suspect that the petitioner’s home life might be of value to
        the defense. Attorney Poland also testified that he did seek family
        background information from the petitioner’s adoptive parents but
        “wasn’t too successful . . . “Attorney Bateman, co-counsel at the 1995
        resentencing hearing, testified that he “had some background from
        discussions with Mr. Poland and Mr. Cauthern . . . ,” but admitted that he
        did not meet or speak with the petitioner’s step-siblings.

(R. 167, Mar. 31, 2010, Opinion, at 73.) Even if one assumes that the testimony of two
of the step-siblings suggests that the state court did not err when it found that they might
not even have testified unless it was acceptable to their father (who had died by the time
the post-conviction hearing took place), that would only go to possible prejudice; the
failure to contact the siblings at all was simply deficient performance. Were it true that
the siblings would not have testified, then a court could plausibly find that there was no
prejudice because of counsel’s failure to investigate the possibility of their testimony.
But to fail to investigate a defendant’s nearest relatives at all is deficient performance,
regardless of what the end result might have been.

        Based on the testimony of the step-siblings, there was no factual basis for the
state court’s finding that they would not have testified. While Melinda, when asked if
she would have assisted Petitioner in 1987, said “I doubt it,” she immediately afterwards
No. 10-5759        Cauthern v. Colson                                             Page 28


added that she would have helped if properly approached in 1988 or 1995. (Joint App’x
at 1227–1228.) Roy admitted that he might not have done it if it would have been
hurtful to their father, but also added that he assumed his father would have wanted him
to testify. (Id. at 1336–37.) And Eveann was unequivocal in stating that she would
have testified on Petitioner’s behalf. (Id. at 1370–71.) Therefore, even if this Court
defers entirely to the state court’s findings with respect to Roy and Melinda, there would
still be a finding of deficient performance, because at least one of these step-siblings
would have testified, and only one was necessary to elicit the relevant information.

       Moreover, even were the failure to investigate based on some sort of strategic
decision—and unlike a decision not to have a potential witness testify after an
investigation, it is hard to imagine what that strategy would be—“[t]he relevant question
is not whether counsel’s choices were strategic, but whether they were reasonable.” Roe
v. Flores-Ortega, 528 U.S. 470, 481 (2000). In addition, as the Supreme Court recently
found, “[w]e certainly have never held that counsel’s effort to present some mitigation
evidence should foreclose an inquiry into whether a facially deficient mitigation
investigation might have prejudiced the defendant.” Sears v. Upton, ___ U.S. ___, 130
S. Ct. 3259, 3266 (2010).

       Though the issue was effectively foreclosed by the state’s finding of no deficient
performance, and there was no need to address the second prong of Strickland, the state
court went on to find a lack of prejudice, arguing that:

       Even though the petitioner’s step-siblings undoubtedly endured abusive,
       isolated childhoods, it is by no means obvious from the proof that the
       petitioner’s childhood rivaled theirs. The evidence does not preponderate
       against the post-conviction court’s assessment that the petitioner led “a
       charmed life in comparison to his siblings, that he wasted his opportunity
       to become a productive citizen despite [his adopted father’s] attempts to
       foster his car-repair skills, and that he abandoned his wife and child.” To
       be sure, evidence about life in the Cauthern household would have been
       admissible during the penalty retrial; however, the test for prejudice in
       the post-conviction, ineffective assistance context is more exacting. [T]he
       quality of the proposed testimony rather than the quantity of witnesses
       determines whether prejudice has been established.
No. 10-5759         Cauthern v. Colson                                              Page 29


        In our opinion, the family-history evidence is, at best, marginal in terms
        of illuminating the case in such a way as to undermine confidence in the
        jury’s sentencing decision. At worst, the evidence is reminiscent of the
        adage in Strouth v. State, 755 S.W.2d 819, 827 (Tenn. Crim. App.1986),
        that “while many people have unhappy childhoods, [few commit brutal
        murders].” Inasmuch as the petitioner’s step-siblings do not manifest
        obvious antisocial traits or violent tendencies, a jury reasonably could
        reject, or be insulted by, any suggestion that the petitioner’s criminal
        actions were attributable to a disadvantaged background.

Cauthern v. State, 145 S.W.3d at 609 (some citations and quotation marks omitted).

        But this is an unreasonable interpretation of federal law. First, as noted above,
a criminal defendant, particularly in a death penalty case, is given wide latitude in the
introduction of mitigation evidence. See Eddings v. Oklahoma, 455 U.S. 104 (1982).
Next, it is clearly established law that evidence of abuse is significant to a jury’s
determination of moral culpability. The Supreme Court has held that “the graphic
description of [Petitioner’s] childhood, filled with abuse and privation, or the reality that
he was ‘borderline mentally retarded,’ might well have influenced the jury’s appraisal
of his moral culpability.” Williams v. Taylor, 529 U.S. 362, 398 (2000); see Penry v.
Lynaugh, 492 U.S. 302, 315 (requiring jury to be able “to fully consider and give effect
to the mitigating evidence of [Petitioner’s] mental retardation and abused background.”)
(abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002)). The Tennessee
Court of Criminal Appeals found that the failure to present this evidence was not
prejudicial, because “a jury reasonably could reject, or be insulted by, any suggestion
that the petitioner’s criminal actions were attributable to a disadvantaged background.”
Cauthern v. State, 145 S.W.3d 571, 609 (Tenn. Crim. App. 2004). But that kind of
speculation is precisely why the failure to introduce this evidence was prejudicial. While
some degree of speculation is necessary in determining prejudice, Goodwin v. Johnson,
632 F.3d 301, 328 (6th Cir. 2011) (citing Sears, 130 S. Ct. at 3265–66 (2010)), the state
court’s speculation was inapposite. The fact that the jury might have taken this evidence
as proof that Petitioner’s childhood did not mitigate his culpability does not eliminate
the possibility that there was a reasonable probability that the jury would have found that
it did mitigate his culpability. Without citing a single federal case, the Tennessee court
No. 10-5759            Cauthern v. Colson                                                          Page 30


found that this evidence would not have led a reasonable jury to find a lesser degree of
moral culpability. But the only other evidence of the potential impact of abuse on
Petitioner consisted of his own testimony, which is on its face less compelling than the
testimony of a less interested party. Testimony from his siblings could very well have
elicited sympathy, or given the jury greater reason to consider life imprisonment. See
e.g., Johnson v. Mitchell, 585 F.3d 923, 941–43 (6th Cir. 2009) (finding that defense
counsel’s failure to investigate leads that might have led to evidence of abuse was
ineffective, and that the state court’s determination of the opposite conclusion violated
clearly established law). The Tennessee court’s decision was therefore an unreasonable
application of the law, given the facts in this case, and accordingly, the decision of the
district court is reversed.

                  2.        Petitioner’s Claim of Ineffective Assistance Due to Counsel’s
                            Failure Investigate Patterson’s Involvement in a Similar
                            Crime in New Mexico

         Petitioner’s next claim for ineffective assistance of counsel is that trial counsel
failed to adequately investigate Patterson’s background. Patterson was suspected of a
rape and murder in New Mexico. Petitioner argues that had this information been
available, and presented to the jury, it would have supported his theory that Patterson
had greater moral culpability.13 The Tennessee Court of Criminal Appeals found that:

         The petitioner charges that had trial counsel investigated Patterson’s
         background, counsel would have discovered that Patterson was a suspect
         in the strangulation death of a woman in New Mexico. The petitioner,
         however, fails to explain why trial counsel should have set out on such
         a course of investigation prior to his 1988 trial or even how such
         information relating to an unsolved homicide would have been
         uncovered. The petitioner has offered no evidence of deficient
         performance on this point in connection with his 1988 trial.
         Furthermore, as the post-conviction court noted, assuming the evidence
         could be categorized as relevant for some non-propensity purpose, the
         petitioner has not shown by clear and convincing evidence that Patterson



         13
           Petitioner originally brought this argument with respect to both his trial and sentencing, but now
pursues the argument only as it relates to the 1995 resentencing.
No. 10-5759        Cauthern v. Colson                                             Page 31


       actually committed the offense. The failure to establish a proper
       foundation would have resulted in the exclusion of the evidence.
       The petitioner then shifts to his 1995 resentencing trial. By that time, the
       petitioner claims, Patterson’s suspected involvement in the New Mexico
       homicide was known through other proceedings. The petitioner criticizes
       counsel for not independently investigating “this startling information”
       once it came to light, but there appears to be little to investigate. The
       testimony of the New Mexico law enforcement officers at the
       post-conviction hearing was not particularly revealing or useful beyond
       the initial proposition that Patterson was a suspect.

Cauthern v. State, 145 S.W.3d at 616.

       On this claim, however, Petitioner cannot show deficient performance. First, it
is unclear that a reasonable investigation would have turned up this evidence before trial.
Even assuming that Petitioner could show deficient performance, it was not
unreasonable for the state court to find that there was no prejudice as to this evidence.
The evidence tying Patterson to the New Mexico killing was inadmissible in the
proceedings before the trial court. Id. at 597. The case against Patterson in New Mexico
remains technically unsolved, and as the district court found, a reasonable juror would
not have concluded that the evidence from the 1981 killing in New Mexico had any
bearing on Petitioner’s relative culpability, especially as an existing witness had already
put Patterson’s admissions regarding his lead role in the killings before the jury. Id.
This evidence might have reasonably found Patterson to be more culpable and thus
resulted in his being sentenced to death, but the evidence is of no importance with
respect to Petitioner’s culpability, given the otherwise overwhelming evidence of
Petitioner’s guilt. Accordingly, because even if the investigation was deficient, there was
no prejudice based on its failure, Petitioner’s claim with respect to the evidence of
Patterson’s involvement in the New Mexico killing is denied.

       VII.    The Court’s Use of the “Heinous, Atrocious, or Cruel” Aggravating
               Factor

       Petitioner’s final claim is that Tennessee’s use of the “heinous, atrocious, or
cruel” (“HAC”) aggravating factor is unconstitutionally vague. Particularly, he claims
No. 10-5759         Cauthern v. Colson                                             Page 32


that the state court erred when it found that the trial court’s error in using the incorrect
version of the aggravating statute was harmless. The clearly established standard for
evaluating whether a constitutional error was harmless is that the state must show
“beyond a reasonable doubt that the error complained of did not contribute to the verdict
obtained.” Chapman v. California, 386 U.S. 18, 24 (1967).

        Tennessee amended its HAC statute in 1989. Prior to 1989, the statute stated
“[t]he murder was especially heinous, atrocious, or cruel in that it involved torture or
depravity of mind.” Tenn. Code Ann. § 39-2-203(i)(5)(1982). In 1989, the statute was
amended to state that “[t]he murder was especially heinous, atrocious, or cruel in that
it involved torture or serious physical abuse beyond that necessary to produce death.”
Tenn. Code Ann. § 39-13-204(i)(5) (1991). At the 1995 resentencing the court used the
post-1989 language. As the Tennessee Supreme Court found, this was error; the court
should have used the version of the statute that was in effect at the time of the offense.
State v. Cauthern, 967 S.W.2d 726, 732 (1998). But it found that the difference between
the two statutes was harmless, in light of the court’s instructions to the jury.

        This decision was not contrary to or an unreasonable application of federal law.
First, the Supreme Court has found that HAC aggravators are constitutionally
permissible if construed so as to require “torture or serious physical abuse.” Maynard
v. Cartwright, 486 U.S. 356, 364–65 (1988). And as the district court found, the HAC
language used by the state court, if accompanied by a limiting instruction, has been
expressly approved of by the Supreme Court. Bell v. Cone, 543 U.S. 447, 455 (2005).
In Cone, the Supreme Court stated that even if it assumed that the Sixth Circuit was
correct when it found that Tennessee’s HAC aggravator was unconstitutionally vague
on its face, it could not presume that the state court had failed to cure this vagueness.
Id. at 459–60.

        At resentencing, the trial court gave explanations as to the terms used in the
aggravating factor. It defined heinous, atrocious, or cruel according to the correct
standard. State v. Cauthern, 967 S.W.2d at 732. It further defined torture correctly. Id.
The only error in the court’s instructions was the substitution of “serious physical abuse
No. 10-5759          Cauthern v. Colson                                          Page 33


beyond that necessary to produce death” in place of the older “depravity of mind”
language. But that error was inconsequential because there was ample evidence of
torture. As the court found:

        The victim, Rosemary Smith, was placed in a closet, first enduring the
        mental anguish of her husband’s murder in the next room. She then was
        raped twice, ridiculed, suffered through a bungled attempt at
        strangulation and strangled to death with a tourniquet device placed
        around her neck that caused massive damage to her throat and larynx.
        There was evidence that the victim struggled to save herself while still
        alive and conscious by attempting to release the pressure which was
        applied to her neck. After the blood supply was finally cut off at the end
        of the struggle, she may have lost consciousness in thirty seconds but
        remained alive for three to six minutes.

Id.

        Accordingly, it was not a violation of clearly established law for the Tennessee
Supreme Court to find this error harmless. What law does exist with respect to
Tennessee’s HAC aggravator clearly supports the conclusion that the statute, with the
limiting instructions given, is constitutional, and the difference in language between the
two versions of the statute was irrelevant to the determination. Therefore the decision
of the district court with respect to this claim is affirmed.

                                    CONCLUSION

        For the foregoing reasons, we AFFIRM the decision of the district court with
respect to Petitioner’s claims under Eddings and Brady, as well as with respect to state’s
use of the heinous, atrocious, or cruel aggravator at sentencing. However, we GRANT
the petition for a conditional writ of habeas corpus based on Petitioner’s claims of
ineffective assistance of counsel and prosecutorial misconduct, and order the state to
commence resentencing proceedings for Petitioner within 180 days or vacate his
sentence of death.
No. 10-5759        Cauthern v. Colson                                           Page 34


                                  _______________

                                     DISSENT
                                  _______________

       ROGERS, Circuit Judge, dissenting. I join all but parts III. B. and VI. B. 1. of
the majority’s opinion.

       First, the Tennessee Supreme Court was not unreasonable in finding insufficient
prejudice from the prosecutor’s clearly improper remarks. Equating the defendant with
the devil incarnate, Susan Smith, and Jeffery Dahmer was clearly improper. But the
Tennessee Supreme Court could reasonably find that this extreme and belabored
metaphor did not cause the jury to impose the death sentence, in the face of the
extraordinarily brutal facts of this case. The Tennessee Supreme Court found that:

       The victim, Rosemary Smith, was placed in a closet, first enduring the
       mental anguish of her husband’s murder in the next room. She then was
       raped twice, ridiculed, suffered through a bungled attempt at
       strangulation and strangled to death with a tourniquet device placed
       around her neck that caused massive damage to her throat and larynx.
       There was evidence that the victim struggled to save herself while still
       alive and conscious by attempting to release the pressure which was
       applied to her neck. After the blood supply was finally cut off at the end
       of the struggle, she may have lost consciousness in thirty seconds but
       remained alive for three to six minutes.

State v. Cauthern, 967 S.W.2d 726, 732 (Tenn. 1998). Although the Tennessee Supreme
Court’s reasoning was brief with regard to the prejudice caused by the prosecutor’s
remarks, its central reasoning was clear: “the misconduct must be viewed together with
the overall record and the overwhelming strength of the State’s case. The evidence
supported the aggravating factor relied on by the State, as well as a finding that this
factor outweighed the evidence of mitigating factors.” Id. at 737–38.

       This analysis is a reasonable application of Supreme Court law. It mirrors the
reasoning used by the Court in Darden v. Wainwright, 477 U.S. 168 (1986). As the
Supreme Court there explained, “it is not enough that the prosecutors’ remarks were
undesirable or even universally condemned. The relevant question is whether the
No. 10-5759        Cauthern v. Colson                                             Page 35


prosecutors’ comments so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Id. at 181 (internal quotation marks omitted). In
this case, as in Darden, “[t]he weight of the evidence against the petitioner was heavy;
the overwhelming eyewitness and circumstantial evidence to support a finding of guilt
on all charges reduce the likelihood that the jury’s decision was influenced by the
closing argument.”     Id. at 182 (internal quotation marks and citation omitted).
Considering the substantial evidence of the grisly manner in which Rosemary was killed,
it was reasonable to conclude that the prosecutor’s remarks did not rise to the level of
a due process violation because the jury would not have needed to rely on the
prosecutor’s remarks to find the aggravating factor.

       The Tennessee Supreme Court also noted that the prosecutor’s closing argument
appeared to be a response to defense counsel’s suggestion that a civilized society should
not impose the death penalty and a rebuttal of Cauthern’s evidence of his rehabilitative
potential. Cauthern, 967 S.W.2d at 737–38. The concept of invited response was relied
upon by the Supreme Court in Darden. There the Court explained that “the idea of
‘invited response’ is used not to excuse improper comments, but to determine the effect
on the trial as a whole.” Darden, 477 U.S. at 182. Whether the response is invited is
relevant to the analysis because a prosecutor’s improper remarks are less likely to affect
the fairness of the trial if their purpose was merely to “right the scale” in response to a
defendant’s arguments. United States v. Young, 470 U.S. 1, 12–13 (1985). Although the
prosecutor’s remarks went well beyond what was necessary to respond to the defense,
it was still reasonable for the state court to conclude that the prosecutor’s remarks were
less likely to cause prejudice in the context of the defense’s commentary on the propriety
of the death penalty in a civilized society.

       The reasonableness of the state court’s decision is buttressed by the fact that just
last year the Supreme Court reminded us that “the Darden standard is a very general one,
leaving courts ‘more leeway . . . in reaching outcomes in case-by-case determinations.’”
Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)). The less specific a rule is, the more room there is for
No. 10-5759        Cauthern v. Colson                                             Page 36


disagreement over how the rule ought to apply, and the more likely a given application
is to be reasonable. Yarborough, 541 U.S. at 664. The generality of the Darden
standard makes it all the more difficult to find that the Tennessee Supreme Court’s
application of federal law was unreasonable.

       Moreover, even if the Tennessee high court’s analysis was so cryptic and
unpersuasive as to be unreasonable, that would not necessarily mean that Cauthern
succeeds on this appeal, but rather that we would decide de novo whether there was a
constitutional violation. See Rice v. White, 660 F.3d 242, 257 (6th Cir. 2011). Under
an independent application of the relevant standard from Brecht v. Abrahamson, 507
U.S. 619, 623 (1993), the error was harmless. First, the factors discussed above—the
significant evidence of torture and the fact that defense counsel invited the prosecutor’s
response—weigh in favor of a finding of no injurious effect on the verdict. Next, almost
immediately after the prosecutor’s remarks, the judge instructed the jury that
“[s]tatements, arguments and remarks of the lawyers . . . [are] not evidence” and later
that the jury should make its decision based on the facts and not “sympathy or
prejudice.” Even if generic, such an instruction is still relevant in a harmless error
review. The fact that the instructions were given is a factor that should be considered
when evaluating the effect of an error on the verdict. The significant evidence before
the jury along with the “important presumption that jurors followed the trial court’s
instructions,” United States v. Guzman, 450 F.3d 627, 629 (6th Cir. 2006), provides a
rational explanation for the sentence: the jury followed its instructions and sentenced
Cauthern based on the evidence before it—not because of the prosecutor’s egregious
remarks.

       The presumption that the jury followed the instructions it was given is bolstered
by the fact that it sentenced Cauthern to death for Rosemary’s death but not for Patrick’s.
The evidence before the jury much more clearly established that Rosemary’s death was
heinous, atrocious, or cruel. Rosemary heard her husband being killed, was raped twice,
suffered through a botched strangling, and finally was killed in a particularly gruesome
manner. Patrick’s death, horrible as it was, did not have the same indicia of torture as
No. 10-5759         Cauthern v. Colson                                             Page 37


his wife’s. The jury’s decision to impose different punishments does not definitively
answer whether the remarks affected the verdict, but the fact that the jury behaved
rationally enough to distinguish between the circumstances surrounding the murders is
another factor that indicates the jury was weighing the evidence and not the prosecutor’s
improper remarks when it returned the death sentence. Together, these facts indicate
that the prosecutor’s comments did not have a substantial and injurious effect on the
verdict.

        Second, the Tennessee Court of Criminal Appeals was not unreasonable in
finding insufficient prejudice from defense counsel’s failure to interview Cauthern’s
step-siblings. Prejudice, the second prong of the Strickland analysis, is shown when
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,
694 (1985). As the state court explained, if the step-siblings had testified, their
testimony would not have been particularly helpful to Cauthern. Each of his step-
siblings would have testified that they had been abused by Dagmar (Cauthern’s
grandmother), but that Cauthern was favored as the “golden child” of the family.
Cauthern v. State, 145 S.W.3d 571, 584 (Tenn. Crim. App. 2004) (finding that Melinda
would have testified that Cauthern was “‘the apple of [Dagmar’s] eye’”); id. at 585
(finding that Bud would have testified that Cauthern was initially the favorite child but
would be subject to unpredictable abuse when he became older); id. (finding that Eveann
would have testified that she and Cauthern were “golden children”). Based on these
findings, the Court of Criminal Appeals concluded that “[e]ven though the petitioner’s
step-siblings undoubtedly endured abusive, isolated childhoods, it is by no means
obvious from the proof that the petitioner’s childhood rivaled theirs.” Id. at 609. In fact,
testimony from the step-siblings could well have hurt Cauthern because the jury could
have concluded that Cauthern’s step-siblings “do not manifest obvious antisocial traits
or violent tendencies” despite having been subject to greater abuse at the hands of
Dagmar. Id. Concluding that there was no reasonable probability that the evidence of
Cauthern’s childhood would have changed the jury’s imposition of the death penalty was
not an unreasonable application of Strickland.
No. 10-5759        Cauthern v. Colson                                           Page 38


       To be sure, the majority articulates reasonable bases for disagreeing with the
Tennessee Supreme Court and the Court of Criminal Appeals on the two prejudice
issues. But as the Supreme Court has repeatedly explained:

       an unreasonable application of federal law is different from an incorrect
       application of federal law. Indeed, a federal habeas court may not issue
       the writ simply because that court concludes in its independent judgment
       that the relevant state-court decision applied clearly established federal
       law erroneously or incorrectly. Rather, that application must be
       objectively unreasonable. This distinction creates a substantially higher
       threshold for obtaining relief than de novo review. AEDPA thus imposes
       a highly deferential standard for evaluating state-court rulings, and
       demands that state-court decisions be given the benefit of the doubt.

Renico v. Lett, 559 U.S. 766, 773 (2010) (citations and internal quotation marks
omitted).

       In a meticulous 168-page opinion, District Judge Trauger thoughtfully and
carefully disposed of multiple arguments presented by petitioner’s counsel. I would
affirm the judgment of the district court denying the habeas writ.
