                    RECOMMENDED FOR FULL-TEXT PUBLICATION
                        Pursuant to Sixth Circuit I.O.P. 32.1(b)
                               File Name: 13a0075p.06

              UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                              _________________


                                              X
                                               -
 HENRY HODGES,
                                               -
                         Petitioner-Appellant,
                                               -
                                               -
                                                   No. 09-5021
         v.
                                               ,
                                                >
                                               -
                      Respondent-Appellee. -
 ROLAND COLSON, Warden,
                                              N
                Appeal from the United States District Court
              for the Middle District of Tennessee at Nashville.
            No. 01-00624—William J. Haynes, Jr., District Judge.
                               Argued: June 7, 2011
                       Decided and Filed: March 26, 2013
    Before: BATCHELDER, Chief Judge; COOK and WHITE, Circuit Judges.

                               _________________

                                    COUNSEL
ARGUED: Kelley J. Henry, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Nashville, Tennessee, for Appellant. James E. Gaylord, OFFICE OF THE TENNESSEE
ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: Kelley J.
Henry, Gretchen L. Swift, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Nashville, Tennessee, for Appellant. James E. Gaylord, Angele M. Gregory, OFFICE
OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.
        BATCHELDER, C. J., delivered the opinion of the court in which COOK, J.,
joined, and WHITE, J., joined in part. WHITE, J. (pp. 38–46), delivered a separate
opinion dissenting from Part III of the majority opinion and from the result.
                               _________________

                                    OPINION
                               _________________

       ALICE M. BATCHELDER, Chief Judge. In 1992, a Tennessee jury convicted
Petitioner-Appellant Henry Hodges of first-degree murder and sentenced him to death.



                                         1
No. 09-5021       Hodges v. Colson                                                 Page 2


The state courts upheld the conviction and sentence on appeal and denied Hodges’s
petition for post-conviction relief. Hodges then petitioned for federal habeas relief,
which the district court denied. Hodges now appeals that denial to this court. For the
following reasons, we AFFIRM the district court’s denial of Hodges’s habeas petition.

                                       FACTS

       The Tennessee Supreme Court summarized the facts of this case as follows:

       The defendant, Henry Eugene Hodges, entered a guilty plea and was
       convicted of premeditated first-degree murder. Thereafter, the penalty
       phase of the trial commenced. The State presented proof of the
       circumstances of the offense through the testimony of Trina Brown, the
       defendant’s fifteen-year-old girlfriend. Brown testified that one week
       before the murder she and the twenty-four-year-old defendant, who were
       living with the defendant’s brother in Smyrna, Tennessee, decided to
       move to Florida. To get money for the move, Hodges, a male
       homosexual prostitute, told Brown that he would rob and kill the next
       person who propositioned him. Hodges discussed with Brown how the
       crimes would be carried out. Hodges repeated these statements on May
       14, 1990, the day of this murder.
       On the night of May 14, Brown and Hodges went to Centennial Park in
       Nashville. When the victim, Ronald Bassett, approached, Hodges talked
       with him, and they left together in the victim’s vehicle and went to the
       victim’s residence at 3133A, Parthenon Avenue, across from Centennial
       Park. Ten or fifteen minutes later, Hodges returned to the park on foot,
       and along with Brown, drove back to the victim’s residence in his own
       car. Hodges told Brown to lie down in the backseat of the car so no one
       could see her. When they arrived at the victim’s residence, Hodges told
       Brown to wait in the car. After an unspecified period of time, Hodges
       returned to the car, wearing gloves, and asked Brown to come into the
       house. Brown testified that when she arrived, Bassett was lying face
       down on the bed in his bedroom with a pillow over his head. Hodges had
       bound his feet together with duct tape and had handcuffed his hands.
       While Bassett lay helplessly, Brown and the defendant ransacked the
       house searching for items of value. After obtaining the personal
       identification number for the victim’s automatic teller card, Brown and
       the defendant “took a break,” drank a coke, and discussed whether to kill
       Bassett. Brown testified that she told Hodges to kill Bassett to prevent
       their arrest. Hodges then went into the bedroom and, ignoring the
       victim’s pleas not to kill him, strangled Bassett to death with a nylon
No. 09-5021      Hodges v. Colson                                                   Page 3


      rope. Brown testified that she heard Bassett moan and make a choking
      sound and that it took about five minutes for Bassett to die.
      In an attempt to remove any fingerprints, the defendant wiped off various
      items in the residence. After turning the air conditioner in Bassett’s
      bedroom on high to prevent discovery of the body, Hodges and Brown
      left the victim’s residence, taking the victim’s automobile and several
      items of personal property, including jewelry, a gun, and a VCR. After
      using Bassett’s automatic teller card to withdraw the twenty-four-hour
      maximum of four hundred dollars from his account, the pair returned to
      the house of the defendant’s brother and went to bed. The next day,
      having learned that the victim’s body had been discovered, Brown and
      the defendant abandoned the victim’s car in rural Rutherford County and
      drove to Georgia in their own car. They were eventually arrested in
      North Carolina. Items of the victim’s personal property were found in
      their possession at this time. Also, the defendant’s fingerprints were
      found on items inside Bassett’s home, and Brown had been photographed
      withdrawing money with Bassett’s automatic teller card.
      Testifying for the State at the sentencing hearing, Dr. Charles Harlan, the
      chief medical examiner for Metropolitan Nashville and Davidson
      County, confirmed that Bassett had died from ligature strangulation. Dr.
      Harlan opined that Bassett would have remained alive and conscious for
      at least three and perhaps as long as five minutes during the
      strangulation. Harlan also found abrasions on the victim’s wrists
      consistent with handcuffs.
      The State proved that the defendant had been convicted of armed
      robbery, attempted kidnaping and robbery in Hamilton County in 1984.
      The State also established that the defendant had been convicted of
      murder in Fulton County, Georgia, in July 1990. The record reveals that
      the Georgia killing occurred when the defendant and Brown arrived in
      Atlanta after murdering Bassett. Hodges made arrangements with a man
      to engage in homosexual acts for an agreed price. Hodges accompanied
      the man to his motel room, but when the man was unable to pay the
      agreed price, Hodges murdered him.
      In mitigation, the defendant testified and also presented the testimony of
      his mother, his brothers and Dr. Barry Nurcombe, a child psychiatrist.
      This proof showed that the defendant was the next to youngest of his
      mother’s five sons. His mother and father were not married. His father
      was actually married to another woman, but engaged in what one of the
      witnesses described as an “irregular union” with the defendant’s mother
      for eighteen years. The defendant’s father abused the defendant’s mother
      and was strict with the defendant’s brothers, three of whom were the
      children of another man. The defendant, however, was his father’s
No. 09-5021      Hodges v. Colson                                                  Page 4


      favorite and was spoiled. Financial difficulties forced the family to move
      about frequently, and defendant’s father supported the family only
      sporadically.
      The defense introduced proof to show that Hodges seemed normal until
      he was twelve years old. At that time, he began to associate with older
      boys, sniff glue and gasoline, be truant from school, and run away from
      home. He also engaged in sexual activities with his younger brother and
      attempted sexual activities with a female cousin. He became involved
      with the juvenile authorities and was confined to a juvenile facility in
      Chattanooga.
      Through his mitigation proof, the defendant attempted to establish that
      a catalyst and major contributing cause of his delinquent and later
      criminal behavior was his rape and sexual abuse by a stranger when he
      was twelve years old. According to the defendant, he accepted a
      stranger’s offer of a ride home when he was playing a short distance from
      his home on Fessler’s Lane in Nashville. Rather than driving Hodges
      home, the stranger drove Hodges to his home and raped him. Fearing
      rejection by his homophobic father and driven by guilt, the defendant
      told no one of this incident until he was arrested in 1990.
      Dr. Nurcombe testified that, while the defendant suffered from an
      antisocial personality disorder, low self-esteem, and substance
      (marijuana) abuse, the killing was motivated by a subconscious desire for
      revenge for the sexual abuse inflicted on him when he was twelve,
      coupled with Hodges’ fear that his family might discover that he was
      engaged in homosexual prostitution since Brown had told Hodge’s [sic]
      sister-in-law shortly before the killing that he was a homosexual
      prostitute. The defense also introduced testimony that Brown dominated
      and manipulated the defendant.
      In rebuttal the State called Dr. James Kyser, a forensic psychiatrist, and
      Dr. Leonard Morgan, a clinical psychologist. Both had examined the
      defendant and concluded that he suffered from an antisocial personality
      disorder. They described persons with this disorder as having “no
      conscience,” being “self centered,” being “notoriously dishonest and
      untruthful,” and having “very little regard for the feelings of others and
      . . . willing to use any means to get what they want, no matter who it
      hurts.” While acknowledging the complicated factors involved in
      antisocial personality disorders, the State’s experts discounted the
      singular importance of the one incident of alleged sexual abuse in
      causing the defendant’s actions. Dr. Morgan concluded that the
      defendant “was in complete control of his behavior” and not suffering
      from mental illness or emotional disturbance.
No. 09-5021        Hodges v. Colson                                                    Page 5


       Based on the evidence presented, the jury determined that the State had
       proven the existence of three aggravating circumstances beyond a
       reasonable doubt: (1) “[t]he defendant was previously convicted of one
       or more felonies, other than the present charge whose statutory elements
       involve the use of violence to the person;” (2) “[t]he murder was
       especially heinous, atrocious or cruel in that it involved torture or serious
       physical abuse beyond that necessary to produce death;” and (3) “[t]he
       murder was committed while the defendant was engaged in committing,
       or was an accomplice in the commission of, or attempting to
       commit, or fleeing after committing a robbery.” Tenn. Code Ann.
       § 39–13–204(i)(2); (i)(5) and (i)(7) (1991 Repl.). In addition, the jury
       found that the aggravating circumstances outweighed the mitigating
       circumstances beyond a reasonable doubt and, as a result, sentenced the
       defendant to death by electrocution. The trial court entered a judgment
       in accordance with the jury’s verdict and the Court of Criminal Appeals
       affirmed. After reviewing the record and considering the errors alleged
       by the defendant, we affirm the judgment of the trial court and Court of
       Criminal Appeals.

Tennessee v. Hodges, 944 S.W.2d 346, 349–51 (Tenn. 1997) (footnotes omitted).

                             PROCEDURAL HISTORY

       Hodges was convicted of first-degree murder and sentenced to death in January
1992. The Tennessee Court of Criminal Appeals affirmed his conviction and sentence
in 1995. Tennessee v. Hodges, No. 01-C-01-9212-CR00382, 1995 WL 301443 (Tenn.
Crim. App. May 18, 1995). The Tennessee Supreme Court affirmed in 1997. Hodges,
944 S.W.2d 346.

       Hodges filed a petition for post-conviction relief in December 1997, and the trial
court denied relief in February 1999. The Tennessee Court of Criminal Appeals
affirmed that decision in 2000. Hodges v. Tennessee, No. M1999-00516-CCA-R3-PD,
2000 WL 1562865 (Tenn. Crim. App. Oct. 20, 2000). The Tennessee Supreme Court
denied an application for permission to appeal in March 2001.

       Hodges filed a petition to proceed in forma pauperis in federal district court in
May 2001, a provisional petition for a writ of habeas corpus in July 2001, and an
amended petition in March 2002. Hodges raised 32 claims and subclaims in his
amended habeas petition. The district court granted some of Hodges’s discovery
No. 09-5021         Hodges v. Colson                                                Page 6


requests, denied others, and denied Hodges’s request for an evidentiary hearing. In
March 2008, the district court denied Hodges’s habeas petition. Hodges applied for a
Certificate of Appealability (“COA”), and the district court granted a COA as to all
claims.

                              STANDARD OF REVIEW

          This court reviews de novo a district court’s legal conclusions and mixed
questions of law and fact, and reviews its factual findings for clear error. Lucas v.
O’Dea, 179 F.3d 412, 416 (6th Cir. 1999). Under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), a district court may not grant a habeas petition with respect to
any claim that was adjudicated on the merits in the state courts unless the adjudication
resulted in a decision that: (1) was contrary to, or involved an unreasonable application
of, clearly established federal law as determined by the Supreme Court; or (2) was based
on an unreasonable determination of the facts in light of the evidence presented to the
state courts. 28 U.S.C. § 2254(d). Under the “contrary to” clause, a federal habeas court
may grant the writ if the state court arrives at a conclusion opposite to that reached by
the Supreme Court on a question of law, or if the state court decides a case differently
than the Supreme Court has on a set of materially indistinguishable facts. Williams v.
Taylor, 529 U.S. 362, 412–13 (2000). Under the “unreasonable application” clause, a
federal habeas court may grant the writ if the state court identifies the correct governing
legal principle from the Supreme Court’s decisions but unreasonably applies that
principle to the facts of the petitioner’s case. Id. To obtain habeas relief, “a state
prisoner must show that the state court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.”
Harrington v. Richter, 131 S. Ct. 770, 786–87 (2011).

          To analyze whether a state court decision is contrary to or an unreasonable
application of clearly established Supreme Court precedent, courts look only to the
holdings of the Supreme Court’s decisions as of the time of the relevant state court
decision. Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003). Courts consider lower court
No. 09-5021         Hodges v. Colson                                               Page 7


decisions to the extent they shed light on the analysis of Supreme Court holdings to
determine whether a legal principle had been clearly established. Hill v. Hofbauer,
337 F.3d 706, 716 (6th Cir. 2003). Finally, the state court’s factual findings are
presumed correct unless rebutted by the habeas petitioner by clear and convincing
evidence. See 28 U.S.C. § 2254(e)(1); McAdoo v. Elo, 365 F.3d 487, 493–94 (6th Cir.
2004).

                                       ANALYSIS

         Before this court, Hodges raises four issues: (1) whether the state courts
reasonably applied federal law in determining that certain restrictions imposed on voir
dire by the trial court did not interfere with Hodges’s constitutional right to a fair and
impartial trial; (2) whether the district court properly denied Hodges’s requests for
discovery, an evidentiary hearing, and habeas relief on a claim of juror misconduct;
(3) whether the state courts reasonably applied federal law in determining that Hodges’s
trial counsel were not ineffective for advising Hodges to plead guilty to murder and
aggravated robbery; and (4) whether the district court properly denied an evidentiary
hearing and habeas relief on Hodges’s claims of incompetency at trial and ineffective
assistance of counsel at sentencing. Hodges failed to brief the remaining claims for
which the district court granted a COA and, therefore, has waived them. See Fed. R.
App. P. 28(a)(9)(A); Landrum v. Mitchell, 625 F.3d 905, 913 (6th Cir. 2010).

I.       Restrictions on Voir Dire

         Hodges alleges that he was denied his right to a fair and impartial jury when the
trial court refused to allow his attorneys to ask prospective jurors whether they could
consider a life sentence for a defendant with a prior conviction for murder. Specifically,
defense counsel repeatedly attempted to ask the following question or a variation
thereof: “Could you impose a life sentence for somebody who has been convicted of
first degree murder twice?” The trial court repeatedly sustained the prosecution’s
objections to the question.
No. 09-5021        Hodges v. Colson                                                 Page 8


       Hodges raised this claim on direct appeal. The Tennessee Court of Criminal
Appeals rejected it, finding that each juror was asked and allowed to answer questions
about whether he could follow the law, consider a life sentence, and weigh the
aggravating and mitigating circumstances. Hodges, 1995 WL 301443, at *8. The court
also found that a prospective juror could not answer the question “without knowing more
about the facts surrounding the case,” and that the question impermissibly sought “to
obtain a pledge from the prospective juror.” Id. The district court found that the state
court’s decision was not an unreasonable application of federal law, agreeing with the
state appellate court that Hodges’s questions improperly sought to commit the jurors to
an opinion before hearing all of the evidence.

       The Sixth Amendment guarantees a criminal defendant a trial by an impartial
jury. Morgan v. Illinois, 504 U.S. 719, 726–27 (1992). An adequate voir dire to identify
unqualified jurors is integral to that right. Id. at 729; Dennis v. Mitchell, 354 F.3d 511,
523–24 (6th Cir. 2003). A state court’s refusal to pose “constitutionally compelled”
questions merits habeas relief. Mu’Min v. Virginia, 500 U.S. 415, 425–26 (1991).
Questions are constitutionally compelled only if “the trial court’s failure to ask these
questions . . . render[s] the defendant’s trial fundamentally unfair.” Id.

       Hodges relies primarily on Morgan in support of his position. In Morgan, the
trial court did not permit defense counsel to ask prospective jurors the following
question: “If you found [the defendant] guilty, would you automatically vote to impose
the death penalty no matter what the facts are?” Morgan, 504 U.S. at 723. The Supreme
Court held that general questions about following the law were not enough and that it
was error to exclude a more specific question tailored to identify jurors “who would
always impose death following conviction [of a capital offense].” Id. at 733, 735
(emphasis in original).

       The Tennessee Court of Criminal Appeals’ determination that the trial court’s
restrictions on voir dire were permissible was neither contrary to nor an unreasonable
application of federal law. The trial court allowed defense counsel to ask the Morgan
question, i.e., whether there was an aggravating circumstance that would cause her
No. 09-5021             Hodges v. Colson                                                             Page 9


automatically to impose the death penalty. In fact, the trial court went beyond that and
also allowed defense counsel to ask prospective jurors whether they could impose a life
sentence on a defendant who had a prior conviction for a violent felony.1 Only when
defense counsel sought to get even more specific—asking whether a prospective juror
could impose a life sentence on a defendant who had a prior first-degree murder
conviction—did the trial court restrict questioning.

         This circuit has held that voir dire questions about how a potential juror would
vote if given specific examples of aggravating or mitigating evidence are not
constitutionally compelled under Morgan. In Dennis, 354 F.3d at 523, the petitioner
alleged that the trial court violated his constitutional rights by refusing to permit him to
ask prospective jurors about specific mitigating factors, including age, lack of prior
criminal history, and environment. We held that the Ohio Supreme Court’s conclusion
that the trial court allowed adequate questioning was “not an unreasonable determination
of the facts in light of the record” and was not “contrary to United States Supreme Court
precedent.” Id. at 525. We noted that the trial court had allowed the petitioner’s counsel
to ask prospective jurors about mitigating factors in general: whether or not they could
consider mitigating factors and return a life sentence; whether they could follow the law;
and whether any of the jury panel had strong feelings about psychological evidence
concerning upbringing, discipline, and lack of discipline. Id. at 524–26.

         Similarly, in Bedford v. Collins, 567 F.3d 225 (6th Cir. 2009), we rejected the
petitioner’s claim that the trial court improperly limited the scope of voir dire by
prohibiting counsel from asking questions that sought to elicit prospective jurors’ views
on the petitioner’s specific case. We noted that the trial court “drew the line at questions


         1
            In one instance, defense counsel asked if a prospective juror could consider mitigating evidence
for a defendant who had been previously convicted of a violent felony (as opposed to a previous conviction
for first-degree murder). The juror answered “[p]robably not” and was subsequently excluded for cause.
Hodges claims the exclusion of this juror “proves the fundamental unfairness of the trial court’s restrictions
[on voir dire].” Pet.’s Br. at 69. We disagree for at least two reasons. First, the question posed to that
juror contemplated a conviction for any violent felony, which is different from a question asking about a
specific violent felony actually at issue in the trial (e.g., first-degree murder). Second, the trial court’s
exclusion of that juror on the basis of her answer to that specific question does nothing whatsoever to
suggest that the trial court was constitutionally compelled to allow the excluded questions, which focused
on first-degree murder, not violent felonies in general. Accordingly, despite Hodges’s vehement
arguments to the contrary, the exclusion of that juror does not provide compelling support for his position.
No. 09-5021          Hodges v. Colson                                              Page 10


that sought to elicit the jurors’ views on [the petitioner’s] specific case—but many
judges understandably (and properly) would do the same thing to prevent the lawyers
from previewing their case through voir dire.” Id. at 232 (emphasis added). Ultimately
we concluded that the restrictions on voir dire “did not render the process fundamentally
unfair.    [The restrictions] reflect instead a reasonable effort to enable adequate
exploration of juror biases (on the one hand) while preventing counsel from extracting
commitments from individual jurors as to the way they would vote (on the other).” Id.
(citing Dennis, 354 F.3d at 523–25).

          Other circuits agree that Morgan does not compel a trial court to allow questions
about how a potential juror would vote if given specific examples of aggravating or
mitigating evidence. See Richmond v. Polk, 375 F.3d 309 (4th Cir. 2004); United States
v. McVeigh, 153 F.3d 1166, 1207 (10th Cir. 1998) (“When a defendant seeks to ask a
juror to speculate or precommit on how that juror might vote based on any particular
facts, the question strays beyond the purpose and protection of Morgan.”). In Richmond,
the Fourth Circuit addressed a claim functionally identical to the one presented here by
Hodges. There, the defendant sought to ask potential jurors “if . . . knowing that [the
defendant] had a previous first-degree murder conviction, they could still consider
mitigating circumstances . . . in determining what their ultimate recommendation as to
life or death is going to be.” Richmond, 375 F.3d at 316. The trial court denied
counsel’s request to ask the question “on the basis that it was a ‘stakeout’ question aimed
at determining what prospective jurors would do if presented with a certain state of
evidence.” Id. The North Carolina Supreme Court agreed and affirmed. Id. at 329–30.
The Fourth Circuit held that the North Carolina Supreme Court’s decision “was neither
contrary to nor an unreasonable application of Morgan.” Id. at 330 (internal quotation
marks omitted). It reasoned:

          Morgan does not require that a capital defendant be allowed to determine
          at voir dire what a prospective juror’s sentencing decision will be if
          presented with a specific state of evidence or circumstances. Rather,
          Morgan requires that a capital defendant be afforded an adequate
          opportunity at voir dire to identify prospective jurors who, even prior to
          the State’s case in chief, have predetermined to impose the death penalty.
No. 09-5021         Hodges v. Colson                                                Page 11


Id. (internal quotation marks and formatting omitted).

        We agree with the Fourth Circuit’s reasoning in Richmond, and we hereby
reaffirm our own holdings in Dennis and Bedford. Trial courts have “a great deal” of
discretion in conducting voir dire. Morgan, 504 U.S. at 729. Morgan simply does not
require a trial court to permit defense counsel to ask prospective jurors how they would
vote assuming the existence of particular mitigating or aggravating circumstances, which
is essentially what defense counsel sought to do here.            Morgan allows for the
identification and exclusion of jurors who are biased for or against the death penalty
before being presented with any evidence and would always vote in accordance with
their biases without regard to the particular facts of the particular case. Id. at 733 (“Were
voir dire not available to lay bare the foundation of petitioner’s challenge for cause
against those prospective jurors who would always impose death following conviction,
his right not to be tried by such jurors would be rendered . . . nugatory.”) (emphasis in
original)). When defense counsel asks questions about the specific aggravating and/or
mitigating factors actually at issue in a case, defense counsel is no longer attempting to
identify members of the venire who would always vote for the death penalty; rather,
defense counsel is attempting to preview how prospective jurors will vote given the
specific facts of the individual case, and Morgan does not require a trial court to allow
such previews.

        Here, defense counsel was permitted to ask the Morgan question and was even
permitted to go beyond that and ask questions such as whether a juror could impose a
life sentence on a defendant with previous violent-felony convictions. That was easily
sufficient to comply with Morgan’s requirement that a capital defendant be allowed to
identify prospective jurors who would “always” vote for death. See id. The trial court
excluded only questions concerning specific aggravating factors actually at issue in the
case (namely, a previous conviction for first-degree murder). Accordingly, the decision
of the Tennessee Court of Criminal Appeals affirming the trial court’s restrictions on
voir dire was neither contrary to nor an unreasonable application of federal law, and
Hodges is not entitled to habeas relief on this claim.
No. 09-5021             Hodges v. Colson                                                            Page 12


II.      Juror Misconduct

         Hodges claims that his death sentence violates his Sixth, Eighth, and Fourteenth
Amendment rights because juror Leroy Thompson engaged in misconduct by allegedly
misinforming the trial court that he would be able to sit on the jury but then voting for
the death penalty only because he was in pain due to arthritis and wanted to end
deliberations. Hodges included Thompson’s alleged misconduct as a ground for his
request for an evidentiary hearing. Hodges concedes that he never raised this matter in
the state courts and that it is therefore procedurally defaulted, but he contends that he can
establish cause and prejudice to excuse the procedural default.

         Whether a petitioner’s federal habeas claim is barred by procedural default is a
question that we review de novo.2 Abela v. Martin, 380 F.3d 915, 922 (6th Cir. 2004).
“[S]tate prisoners must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established appellate
review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). When a petitioner
has failed to present the grounds to the state courts and no state remedy remains
available, his grounds are procedurally defaulted. Id. at 847–48. “[T]he exhaustion
doctrine requires the petitioner to present the same claim under the same theory to the
state courts before raising it on federal habeas review.” Hicks v. Straub, 377 F.3d 538,
552–53 (6th Cir. 2004) (internal quotation marks omitted). The petitioner will not be
allowed to present claims never before presented in the state courts unless he can show
cause to excuse his failure to present the claims and actual prejudice to his defense at
trial or on appeal. Coleman v. Thompson, 501 U.S. 722, 750 (1991). The only exception
is if review is needed to prevent a fundamental miscarriage of justice, such as when the
petitioner submits new evidence showing that a constitutional violation has probably



         2
          We recognize that the district court did not discuss whether this claim was procedurally
defaulted because it found that Leroy Thompson did not serve on the jury. That finding was clearly
erroneous; Leroy Thompson’s name appears on the verdict form. The district court’s failure to discuss
procedural default of this claim does not prohibit this court from considering it, cf. Elzy v. United States,
205 F.3d 882, 886 (6th Cir. 2000) (“we nonetheless may raise [the issue of procedural default] sua
sponte”), particularly in light of the fact that the State argued that the claim was procedurally defaulted in
both the district court and in this court.
No. 09-5021        Hodges v. Colson                                              Page 13


resulted in a conviction of one who is actually innocent. Murray v. Carrier, 477 U.S.
478, 495–96 (1986).

       Hodges concedes that he never presented this particular claim to the state courts.
He did challenge Thompson for cause on the basis that Thompson was incompetent and
unable to understand the proceedings, but he never “presente[ed] the same claim under
the same theory to the state courts” that he presents here. See Hicks, 377 F.3d at 553.

       Hodges no longer has any state court remedies to exhaust. Under Tennessee’s
post-conviction law, a prisoner challenging a conviction may file only one petition
attacking a single judgment. Tenn. Code Ann. § 40-30-102(c). A prisoner may file a
motion to reopen his first post-conviction petition only if his claim stems from a newly
established constitutional right that applies retroactively, relies on scientific evidence
that he is actually innocent, or involves a sentence enhanced because of a previous
conviction that has been declared invalid. Fletcher v. Tennessee, 951 S.W.2d 378,
380–81 (Tenn. 1997) (citing Tenn. Code Ann. § 40-30-217(a) (1996 Supp.)). Hodges’s
juror misconduct claim does not fall within any of these exceptions. Because he failed
to present the claim to the state courts and no state court remedies remain available, the
claim is procedurally defaulted. See O’Sullivan, 526 U.S. at 848.

       At the district court, Hodges argued that various causes could excuse his
procedural default, including ineffective assistance of appellate counsel, ineffective
assistance of post-conviction counsel, reliance on Thompson’s responses in voir dire,
and Hodges’s inability to locate Thompson before the post-conviction evidentiary
hearing. Ineffective assistance of counsel can constitute cause for a procedural default.
See Carrier, 477 U.S. at 492. However, “an ineffective-assistance-of-counsel claim
asserted as cause for the procedural default of another claim can itself be procedurally
defaulted.” Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In post-conviction
proceedings, Hodges raised a claim of ineffective assistance of appellate counsel
regarding Thompson’s competence. He did not claim that appellate counsel were
ineffective for failing to raise the claim that Thompson engaged in misconduct.
No. 09-5021            Hodges v. Colson                                                            Page 14


Accordingly, Hodges cannot rely on ineffective assistance of counsel to establish cause
to excuse his procedural default.

         Nor can Hodges rely on ineffective assistance of post-conviction counsel to
establish cause to excuse his default, even if this holding is not so clear-cut as it once
would have been. Historically, the federal courts have held that there is no constitutional
right to an attorney in post-conviction proceedings, and that ineffective assistance of
post-conviction counsel therefore cannot establish cause for procedural default.
See Carpenter, 529 U.S. at 450–53; Coleman, 501 U.S. at 752; Landrum, 625 F.3d at
919. But the Supreme Court recently held in Martinez v. Ryan, 132 S. Ct. 1309 (2012),
that there is a “narrow exception” to Coleman: “Inadequate assistance of counsel at
initial review collateral proceedings may establish cause for a procedural default of a
claim of ineffective assistance at trial.”                Id. at 1315 (emphasis added).                This
“equitable”—as opposed to constitutional—exception is premised on Coleman itself, a
case in which the Court declined to address the situation in which “state collateral review
is the first place a prisoner can present a challenge to his conviction.” Coleman,
501 U.S. at 755. The Martinez Court held that in such situations ineffective assistance
of post-conviction counsel may be raised as cause to excuse procedural default because
“the collateral proceeding is in many ways the equivalent of a prisoner’s direct appeal
as to the ineffective assistance claim.” Martinez, 132 S. Ct. at 1317.

         The Court in Martinez purported to craft a narrow exception3 to Coleman. We
will assume that the Supreme Court meant exactly what it wrote: “Coleman held that
an attorney’s negligence in a postconviction proceeding does not establish cause, and
this remains true except as to initial-review collateral proceedings for claims of
ineffective assistance of counsel at trial.” Id. at 1316 (emphasis added). The Supreme
Court further insisted:




         3
           We are reminded of one jurist’s statement, made in a different context, that “[e]xceptions to
categorical rules, once created, are difficult to cabin; the logic of the new rule, like water, finds its own
level, and it’s hard to keep it from covering far more than anticipated.” United States v. Alvarez, 638 F.3d
666, 667 (9th Cir. 2011) (Kozinsky, C.J., concurring).
No. 09-5021        Hodges v. Colson                                               Page 15


       The rule of Coleman governs in all but the limited circumstances
       recognized here. The holding in this case does not concern attorney
       errors in other kinds of proceedings, including appeals from
       initial-review collateral proceedings, second or successive collateral
       proceedings, and petitions for discretionary review in a State’s appellate
       courts. It does not extend to attorney errors in any proceeding beyond
       the first occasion the State allows a prisoner to raise a claim of
       ineffective assistance at trial, even though that initial-review collateral
       proceeding may be deficient for other reasons. In addition, the limited
       nature of the qualification to Coleman adopted here reflects the
       importance of the right to the effective assistance of trial counsel and
       Arizona’s decision to bar defendants from raising ineffective-assistance
       claims on direct appeal. Our holding here addresses only the
       constitutional claims presented in this case, where the State barred the
       defendant from raising the claims on direct appeal.

Id. (internal citations omitted; emphases added).

       We will address Hodges’s claims of ineffective assistance of trial counsel in a
different section, but here he claims ineffective assistance of post-conviction counsel as
cause to excuse default of his claim of ineffective assistance of appellate counsel for
failure to raise the juror misconduct issue on direct appeal. Under Martinez’s
unambiguous holding our previous understanding of Coleman in this regard is still the
law—ineffective assistance of post-conviction counsel cannot supply cause for
procedural default of a claim of ineffective assistance of appellate counsel. See, e.g.,
Landrum, 625 F.3d at 919. Moreover, 28 U.S.C. § 2254(i) bars a claim of ineffective
assistance of post-conviction counsel as a separate ground for relief, see Martinez,
132 S. Ct. at 1320, and Hodges has not presented any evidence to justify review of his
claim in order to prevent a fundamental miscarriage of justice. See Carrier, 477 U.S. at
495–96.

       Additionally, Hodges cannot rely on statements made by Thompson at voir dire
or difficulties in locating Thompson during state post-conviction proceedings to establish
cause. Thompson discussed his pain-causing arthritis at voir dire on January 27, 1992.
The verdict form is dated January 30, 1992. Hodges filed his petition for state post-
conviction relief on December 11, 1997. He first attempted to locate Thompson in or
around June 1998. Hodges gives no explanation whatsoever as to why nearly six-and-a-
No. 09-5021          Hodges v. Colson                                             Page 16


half years elapsed between his conviction and his first attempt to locate Thompson.
Moreover, Hodges gives no explanation as to why or how he was able to locate
Thompson for the federal habeas proceeding but not for the state post-conviction
proceeding.

          “[T]he existence of cause for a procedural default must ordinarily turn on
whether the prisoner can show that some objective factor external to the defense
impeded counsel’s efforts to comply with the State’s procedural rule.” Carrier, 477 U.S.
at 479. For nearly six-and-a-half years, Hodges was aware that Thompson had arthritis
and may have been in pain during jury deliberations but failed to seek him out. The fact
that Hodges did not even attempt to locate Thompson until it was nearly too late, and
then could not find him in time to present his testimony to the state court, is not an
objective factor external to the defense sufficient to establish cause to excuse procedural
default.

          Finally, Hodges has not presented any evidence that review of this claim is
necessary in order to prevent a fundamental miscarriage of justice. See id. at 495–96.
This exception has been applied only when a habeas petitioner has demonstrated that he
is actually innocent. See Carter v. Mitchell, 443 F.3d 517, 538 (6th Cir. 2006) (citing
Carrier, 477 U.S. at 496). Hodges has not presented new evidence of his innocence nor
has he even argued that he is actually innocent.

          Accordingly, Hodges is unable to establish the cause necessary to excuse his
procedural default of this claim. It was therefore appropriate for the district court to
deny both an evidentiary hearing and habeas relief on this claim because the claim is
barred.

III.      Ineffective Assistance of Counsel at Plea Phase

          Hodges argues that his counsel rendered ineffective assistance by advising him
to plead guilty; that because of their deficient performance, his guilty plea was neither
knowing, voluntary, nor intelligent; and that he was prejudiced by his counsel’s
performance. Hodges claims that his lawyers mistakenly believed that his pleading
No. 09-5021        Hodges v. Colson                                              Page 17


guilty would prohibit the state from introducing any evidence relating to the facts of the
murder; that his lawyers forgot that if he pled guilty to the aggravated robbery charge,
Hodges would immediately become death eligible; and that he would not have pled
guilty if his lawyers had given him accurate information.

       Hodges failed to appeal the plea-invalidity claim to the Tennessee Court of
Criminal Appeals, and referred to it only in the final page of his brief without citing to
the record or any legal authority. The Tennessee Court of Criminal Appeals considered
the issue waived and declined to address it, relying on Tenn. Crim. App. R. 10(b) and
Tenn. R. App. P. 27(a)(7). See Hodges, 2000 WL 1562865, at *32. To the extent that
it is a separate claim, the plea-invalidity claim is procedurally defaulted.
See Middlebrooks v. Bell, 619 F.3d 526, 535–36 (6th Cir. 2010). Hodges cannot rely on
ineffective assistance of post-conviction counsel to excuse the default; neither has he
presented any evidence to justify review of his claim in order to prevent a fundamental
miscarriage of justice. See Carrier, 477 U.S. at 495–96. Accordingly, the plea-
invalidity claim is barred, and this court will review only the ineffective assistance of
counsel claim.

       Hodges raised the ineffective assistance claim in his state post-conviction
petition. The trial court held an evidentiary hearing and took testimony from Hodges’s
trial counsel. Hodges v. Tennessee, No. M1999-00516-CCA-R3-PD, 2000 WL 1562865,
at *18 (Tenn. Crim. App. Oct. 20, 2000). The Court of Criminal Appeals summarized
the evidence presented as follows:

       At the post-conviction hearing, Dawson [defense counsel at trial]
       testified that the decision to enter a guilty plea was made the weekend
       prior to trial when it was determined that “there was no way we were
       going to convince anybody that Mr. Hodges didn't kill the victim in this
       matter.” He explained that, at that time, the defense team believed that
       by entering a plea during the guilt phase of the trial, they would gain
       credibility with the jury for the sentencing phase. The defense team also
       hoped to surprise the State by entering the plea. In essence, the defense
       team intended to disrupt the bifurcated nature of the trial, thereby
       precluding the State from introducing evidence during the penalty phase
       which the State had planned to introduce at the guilt phase.
       Notwithstanding this reasoning, Dawson admitted that, although the
No. 09-5021          Hodges v. Colson                                            Page 18


       proof was overwhelming, in hindsight, they should have proceeded to
       trial so that they could have begun introduction of their mitigation
       theories. Michael Terry [defense counsel at trial] corroborated Dawson's
       testimony regarding the appellant's guilty plea. He explained that the
       plea was supposed to be “a demonstration of remorse for the jury.”
       However, he agrees that the decision was a mistake and that they should
       have at a least “pitched a fight.” [Hodges] did not testify at the
       post-conviction hearing.

Id. The trial court held that counsel made an informed tactical decision to advise Hodges
to plead guilty. Id.

       The Tennessee Court of Criminal Appeals affirmed that decision. It cited Hill
v. Lockhart, 474 U.S. 52 (1985), for the proposition that the two-prong standard from
Strickland v. Washington, 466 U.S. 668 (1984), applies to ineffective assistance of
counsel claims arising out of guilty plea proceedings. Hodges, 2000 WL 1562865, at
*19–20. The court concluded that the advice to plead guilty was not “outside the range
of competence demanded of attorneys in criminal cases.” Id. at *20. The court noted
the overwhelming evidence of guilt, the reasonable hope of obtaining leniency, the
reasonable belief that the jury would view the guilty plea as an expression of remorse,
and the elimination of the presentation to the jury of all of the evidence available of
Hodges’s guilt. Id. at *19.

       The district court held that the state court’s conclusion that Hodges’s counsel
made a strategic decision to advise him to plead guilty was not unreasonable. The court
noted that Hodges’s counsel had done substantial work on the case before advising him
to plead guilty; that counsel were experienced, aware of the state’s proof and the
elements of the offenses charged; had the aid of three experts; and were impaired by
Hodges’s public statements admitting to several murders. The district court also found
that Hodges did not establish prejudice because Hodges did not testify at his post-
conviction hearing and thus did not say that he would not have pled guilty but for the
advice of counsel.

       After a careful review of the record, we agree with the district court. The state
court’s determination that defense counsel’s performance was not deficient was not
No. 09-5021           Hodges v. Colson                                                      Page 19


contrary to or an unreasonable application of federal law. Moreover, even if we were
to find deficient performance, Hodges has failed to show that he was prejudiced by the
performance.4

        To establish ineffective assistance of trial counsel, Hodges must show that (1)
his counsel’s performance was deficient; and (2) the deficient performance prejudiced
the defense. Strickland, 466 U.S. at 687–88. An attorney’s performance is deficient if
it is objectively unreasonable under prevailing professional norms. Id. at 688. “[A]
court must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be considered
sound trial strategy.” Id. at 689. The test for prejudice is whether there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceedings
would have been different. Id. at 694. To show prejudice in the guilty-plea context, a
defendant “must show that there is a reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and instead would have insisted on going to trial.”
Hill, 474 U.S. at 59. “[W]here the alleged error of counsel is a failure to advise the
defendant of a potential affirmative defense to the crime charged, the resolution of the
‘prejudice’ inquiry will depend largely on whether the affirmative defense likely would
have succeeded at trial.” Id.

        The Supreme Court has recently noted that “[e]stablishing that a state court’s
application of Strickland was unreasonable under § 2254(d) is all the more difficult.”
Harrington v. Richter, 131 S. Ct. 770, 788 (2011). “The standards created by Strickland
and § 2254(d) are both highly deferential, and when the two apply in tandem, review is
doubly so.” Id. (internal quotation marks and citations omitted). Therefore, “[w]hen
§ 2254(d) applies, the question is not whether counsel’s actions were reasonable. The



        4
          We note that two recent Supreme Court cases—Lafler v. Cooper, 132 S. Ct. 1376 (2012), and
Missouri v. Frye, 132 S. Ct. 1399 (2012)—recognizing a Sixth Amendment right to effective
representation during plea-deal negotiations are not implicated here. The record does not reflect that
Hodges was offered any plea deal, so the existing legal standard under Hill v. Lockhart, 474 U.S.
52 (1985), and its progeny remains the law.
No. 09-5021         Hodges v. Colson                                                Page 20


question is whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id.

        A.      Performance

        Using the “doubly” deferential standards of § 2254(d) and Strickland, we
conclude that the state court’s determination that defense counsel’s performance was not
deficient was neither contrary to nor an unreasonable application of federal law. Trial
counsel advised Hodges to plead guilty because of the overwhelming evidence of his
guilt, to give the defense credibility, to limit the proof the prosecution could present, and
to show Hodges’s remorse.

        The Supreme Court has explicitly approved using the American Bar Association
(“ABA”) Guidelines on attorney performance in effect at the time of a defendant’s trial
as “guides to determining what is reasonable” performance by counsel. See, e.g., Padilla
v. Kentucky, 130 S. Ct. 1473, 1482 (2010). However, “ABA Guidelines are not
‘inexorable commands’; rather, they are ‘only guides to what reasonableness means, not
its definition.’” Post v. Bradshaw, 621 F.3d 406, 418 (6th Cir. 2010) (quoting Bobby v.
Van Hook, 130 S. Ct. 13, 17 (2009)) (some internal quotation marks omitted).

        The ABA Guidelines in effect at the time of Hodges’s trial contemplated
negotiated guilty pleas only where the defendant is assured of a sentence less than death.
ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty
Cases (“ABA Guidelines”), § 11.6.1 (1989). “If no written guarantee can be obtained
that death will not be imposed following a plea of guilty, counsel should be extremely
reluctant to participate in a waiver of the client’s trial rights.” Id. § 11.6.3 cmt.

        Courts also find that a defendant has little to gain from pleading guilty in a
capital case, even when the evidence of guilt is overwhelming. “[P]leading guilty [in a
capital case] without a guarantee that the prosecution will recommend a life sentence
holds little if any benefit for the defendant.” Florida v. Nixon, 543 U.S. 175, 191 n.6
(2004) (citing ABA Guidelines § 10.9.2 cmt. (rev.ed. 2003)). The Nixon Court noted
that pleading guilty “increases the likelihood that the State will introduce aggressive
No. 09-5021        Hodges v. Colson                                               Page 21


evidence of guilt during the sentencing phase, so that the gruesome details of the crime
are fresh in the jurors’ minds as they deliberate on the sentence.” Id. Nevertheless, the
Court concluded that “counsel cannot be deemed ineffective for attempting to impress
the jury with his candor and his unwillingness to engage in a useless charade.” Id. at 192
(internal quotation marks omitted).

       This court has also recently decided a similar, but distinguishable, case. In Post,
621 F.3d at 415–18, a pre-Richter case, we addressed whether trial counsel’s advice to
enter a no-contest plea and to submit the penalty phase to a three-judge panel rather than
a jury was objectively reasonable under Strickland. Using de novo review, we
concluded that the defendant’s weak mitigation case made the decision reasonable,
noting that “[the defendant’s] counsel were between a rock and a hard place in
determining the best way to spare him a death sentence, given the overwhelming
evidence of his guilt, his numerous confessions, and his refusal to plead guilty.” Id at
418. We held that although the no-contest plea resulted in the defendant’s being
“sentenced by judges, not jurors, and by three persons rather than twelve,” the strategy
was professionally reasonable because the sentencing judges could have viewed the no-
contest plea as a mitigating factor (although ultimately they did not). Id. at 417.

       Trial counsel’s advice to plead guilty here was questionable. Defense counsel
hoped that Hodges’s pleading guilty would accomplish the following:               (1) gain
credibility with the jury, (2) demonstrate Hodges’s remorse, (3) limit the evidence
presented to the jury, and (4) surprise the prosecution and thereby limit the effectiveness
of its penalty case. The Tennessee Court of Criminal Appeals noted that although the
goals of counsel were reasonable, Hodges “ultimately gained nothing by pleading
guilty.” Hodges, 2000 WL 1562865, at *20. For example, despite counsel’s attempt to
limit the evidence presented to the jury, a vast majority of what they hoped to keep out
was allowed in. Trina Brown testified that Hodges planned to rob and kill the next
person who propositioned him, and that he discussed how to carry out the crimes. She
also told the jury that Hodges bound the victim’s hands and feet and that, after she and
Hodges ransacked the victim’s apartment, Hodges strangled the victim, who was
No. 09-5021         Hodges v. Colson                                               Page 22


begging for his life. Hodges, 944 S.W.2d at 349. Police officers testified that the
victim’s belongings were found in Hodges’s possession when he was arrested, that
Hodges’s fingerprints were found in the victim’s home, and that Brown was
photographed using the victim’s ATM card. Id. at 350.

        Defense counsel did successfully limit the prosecution’s cross-examination of
Hodges; the State was permitted to ask questions only about his personal history, and not
about the circumstances of the offense. Id. at 350 n.6. However, the same result could
have been achieved by putting on a reasonable doubt defense and having Hodges testify
only during the sentencing hearing. This is also true of defense counsel’s goals of
gaining credibility with the jury and showing remorse.

        Moreover, defense attorney Dawson testified in the state post-conviction
proceeding that the defense team “never sat down and did an analysis of what are the
benefits of going to trial, what are the deficits and where did that lead us.” He also
testified that when the defense team advised Hodges to plead guilty, he had “totally
forgotten” about the third count of the indictment, aggravated robbery; a conviction on
that count constituted an aggravating factor for purposes of the penalty phase.

        However, trial counsel also acknowledged that the evidence of Hodges’s guilt
was overwhelming. As counsel explained during the state post-conviction proceeding,
despite their advice that he should not speak with reporters, Hodges participated in a pre-
trial television series in which he gave interviews “describing himself as a serial killer.”
Attorney Dawson described the difficulties that arose from representing such a client:
“We had a client that was confessing to the public on eight murders. And he had written
to the court; he had written to the prosecutor, a confession to the case that we had to try.
It looked pretty dismal.” Trial counsel summarized the evidence against Hodges:
Hodges made inculpatory statements to police, prosecutors, the trial court, and television
reporters; his fingerprints were at the scene of the crime; he had items from the victim’s
house with him when he was arrested; Trina Brown gave a statement implicating him;
there were photos of Brown using the victim’s bank card; and Brown’s fingerprints were
on the victim’s card.
No. 09-5021        Hodges v. Colson                                               Page 23


        The defense team talked to Hodges about the decision to plead guilty and
reviewed the guilty plea form with him. Hodges thanked his attorneys for their work and
never complained about their representation.

        If it were our task to determine whether trial counsel’s performance was deficient
because they advised Hodges to plead guilty, the decision would be a more difficult one.
The ABA Guidelines at the time of the plea contemplated guilty pleas in capital cases
only in exchange for a guarantee from the prosecution not to seek the death penalty.
Here, no such exchange was made, and Hodges gained little—if anything—from his
plea.

        However, the “ABA Guidelines are not inexorable commands,” Post, 621 F.3d
at 418 (internal quotation marks omitted), and our task is not to determine whether trial
counsel’s performance was deficient. Rather, we must determine “whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.” Richter,
131 S. Ct. at 788 (emphasis added). And here, as identified by the Tennessee Court of
Criminal Appeals, there is a reasonable argument that counsel satisfied Strickland’s
deferential standard. Although not directly on point, the considerations in this case are
similar to those faced by this court in Post: “[C]ounsel were between a rock and a hard
place in determining the best way to spare [the defendant] a death sentence, given the
overwhelming evidence of his guilt, [and] his numerous confessions.” 621 F.3d at 418.
And in Post, we found that counsel’s actions were reasonable under a de novo standard
of review, id., which is far less stringent than the “doubly” deferential standard that we
must apply here, see Richter, 131 S. Ct. at 788. Although there is some evidence that
counsel here failed to appreciate fully the impact of their decision, that is not material
to the issue before us: whether there is “any reasonable argument” that counsel’s
recommendation to plead guilty satisfies Strickland. As the Supreme Court has stated,
“[C]ounsel cannot be deemed ineffective for attempting to impress the jury with his
candor and his unwillingness to engage in a useless charade.” Nixon, 543 U.S. at 192.

        Ultimately, the state court that addressed this issue concluded that, “[a]lthough
defense counsel’s strategy for avoiding the death penalty was thwarted, the decision to
No. 09-5021        Hodges v. Colson                                              Page 24


pursue that particular strategy cannot be deemed incompetent.” Hodges, 2000 WL
1562865, at *20. Under the doubly deferential standard imposed by § 2254(d) and
Strickland, we simply cannot say that conclusion is contrary to or involves an
unreasonable application of federal law.

       B.      Prejudice

       Even if we did find that the state court’s decision on trial counsel’s performance
was unreasonable, we could not grant relief because Hodges has failed to establish
prejudice. As noted above, to show prejudice in the guilty-plea context, a defendant
“must show that there is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and instead would have insisted on going to trial.” Hill, 474
U.S. at 59.

       Because the state courts found that trial counsel’s performance was not deficient,
the state courts did not address the prejudice prong of the Strickland inquiry. We have
previously held that where a state court addresses only the performance prong of the
Strickland inquiry, this court will review the prejudice prong de novo. See Morales v.
Mitchell, 507 F.3d 916, 935 (6th Cir. 2007). However, the Supreme Court’s decision in
Richter requires us to apply AEDPA deference to our review of the prejudice prong even
where—as here—the state court reviewed only the performance prong.

       In Richter, 131 S. Ct. at 784, the Supreme Court stated,

       Where a state court’s decision is unaccompanied by an explanation, the
       habeas petitioner’s burden still must be met by showing there was no
       reasonable basis for the state court to deny relief. This is so whether or
       not the state court reveals which of the elements in a multipart claim it
       found insufficient, for § 2254(d) applies when a “claim,” not a
       component of one, has been adjudicated.

(emphasis added). The Court went on to say, “[w]hen a federal claim has been presented
to a state court and the state court has denied relief, it may be presumed that the state
court adjudicated the claim on the merits in the absence of any indication or state-law
procedural principles to the contrary.” Id. at 784–85. Here, the state court did address
No. 09-5021         Hodges v. Colson                                             Page 25


Hodges’s ineffective assistance of counsel “claim,” so AEDPA deference applies to the
entire claim regardless of whether the state court explicitly addressed every
“component” (i.e., the prejudice prong) of that claim. See id at 784.

       Moreover, as a matter of logic, a finding that counsel’s performance was not
deficient implicitly, but unequivocally, encompasses a finding that the performance did
not prejudice the defendant. Indeed, it would be nonsensical to argue that a performance
deemed to be constitutionally sufficient nevertheless prejudiced the defendant. It must
be assumed that a state court’s decision that performance was not deficient includes a
decision that the performance was not prejudicial. Richter explicitly holds that a state
court decision is entitled to AEDPA deference, even if the state court has not given
reasons for that decision, “in the absence of any indication” that state-law procedural
principles were responsible for the state court’s decision. Id. at 785.

       Here, the state court adjudicated Hodges’s ineffective assistance claim, and there
was no indication that state-law procedural principles were responsible for the state
court’s decision.   Accordingly, we must review the entire claim under AEDPA
deference, including the prejudice prong. Our task is therefore to determine whether
there was “[any] reasonable basis for the state court to deny relief.” Id. at 784.

       We find that there was. In Hill, 474 U.S. at 59, the Supreme Court held that in
the context of a challenge to a guilty plea, to establish prejudice a defendant need only
show that “there is a reasonable probability that, but for the counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.” The Court went on
to give two examples. First, it noted that where the alleged error involves failure to
investigate or discover exculpatory information, “the determination of whether the error
‘prejudiced’ the defendant . . . will depend in large part on a prediction whether the
evidence likely would have changed the outcome of a trial.” Id. Second, it noted that
where the alleged error involves a failure to advise the defendant of possible affirmative
defenses, “the resolution of the ‘prejudice’ inquiry will depend largely on whether the
affirmative defense likely would have succeeded at trial.” Id. It is therefore clear that
in determining whether a defendant has shown prejudice, a court must predict whether
No. 09-5021        Hodges v. Colson                                               Page 26


correction of the deficient performance might have enabled the defendant to succeed at
trial. “[T]hese predictions of the outcome at a possible trial, where necessary, should be
made objectively, without regard for the idiosyncrasies of the particular decisionmaker.”
Id. at 59–60.

       This court has previously noted that “testimony, though self-serving, may be
enough by itself to satisfy the prejudice prong.” Miller v. Straub, 299 F.3d 570, 581 (6th
Cir. 2002). In Miller, the defendants testified at a hearing that they entered their guilty
pleas with hesitation and would not have pled guilty but for counsel’s advice. Id. The
court also noted that one of the defendants presented, in the form of testimony from his
trial counsel, “additional evidence that, with competent assistance, he would have pled
not guilty.” Id. at 582. Trial counsel testified that the defendant “pled guilty only
reluctantly,” and the court concluded that “the fact that [trial counsel] had to prevail
upon [the defendant] to plead guilty tends to corroborate [the defendant’s] testimony that
he would have pled not guilty.” Id. The court concluded that the defendants’
“testimony, along with reasonable inferences from the facts and circumstances of this
case,” established prejudice under Hill. Id. at 583.

       In Hodges’s case, particularly under the doubly deferential standards of AEDPA
and Strickland, we cannot conclude that Hodges has established a reasonable probability
that, but for counsel’s advice, he would not have pled guilty. In fact, the only evidence
concerning this issue appears in Hodges’s Verified Amended Petition for Post
Conviction Relief filed on March 24, 1998. There, notably, Hodges did not say that had
he had better advice he would not have pled guilty. Rather, his statement was:

       Had trial counsel performed the above investigations and informed
       Petitioner of the result of those investigations, and had counsel timely
       communicated with Petitioner and given him the above advice, a
       reasonable probability exists that Petitioner would not have pleaded
       guilty to all counts in the indictment, but, rather, would have insisted on
       going to trial.
No. 09-5021            Hodges v. Colson                                                           Page 27


At the end of the document, Hodges’s signature appears, verifying that the “foregoing
allegations of fact are true and correct to the best of [his] information and belief.”5

         In contrast to the defendants in Miller, Hodges has never personally testified
about his decision to plead guilty and whether he would have pled not guilty but for the
advice of counsel. Moreover, unlike in Miller, where “reasonable inferences from the
facts and circumstances” of the case suggested that the defendants would not have pled
guilty but for advice of counsel, no such inferences exist here. To the contrary, any
inferences that can be made make it clear that Hodges would have pled guilty regardless
of what his counsel recommended. Leading up to trial, Hodges embraced his guilt. For
instance, against the advice of counsel, he participated in a pre-trial television series in
which he gave interviews “describing himself as a serial killer.” Hodges also implicated
himself in letters to the court and prosecutor. Those simply are not the actions of a
defendant hoping to avoid a guilty plea, nor do they help establish a reasonable
probability that Hodges would have pled not guilty if so advised by counsel.

         Furthermore, Hill instructs us to examine how competent counsel might have
influenced the outcome of a hypothetical trial, see 474 U.S. at 59–60, and there is
virtually no chance that Hodges could have avoided convictions by proceeding to trial.
As has been discussed repeatedly, the evidence against Hodges was overwhelming, and
he only made the situation worse by corresponding with reporters, the court, and the
prosecutor against the advice of his counsel. Similarly, we have no evidence or reason
to believe that the penalty phase of trial would have proceeded differently had there first
been a full guilt phase.

         A self-serving statement, couched in exactly the terms of the Supreme Court’s
standard, and filed as a required part of Hodges’s verified petition for post-conviction
relief, cannot establish a reasonable probability that Hodges would have pled not guilty
but for the advice of counsel, where all objective evidence points unequivocally to the
contrary. Accordingly, it is clear that the state court had a reasonable basis for denying

         5
         We note that the verification oath and signature is required of all post-conviction petitions filed
in Tennessee. See Tenn. Code Ann. § 40-30-204(e) (1997).
No. 09-5021         Hodges v. Colson                                                Page 28


relief on this claim. Hodges is not entitled to relief on his claim of ineffective assistance
of counsel at the plea phase.

IV.     Ineffective Assistance of Counsel at Sentencing Phase & Incompetency at
        Trial

        Hodges argues that the district court erred when it denied him an evidentiary
hearing on his claims that he was incompetent at trial and that his trial counsel were
ineffective at sentencing. He also argues that the district court erred when it denied his
competency and ineffective assistance of counsel claims on the merits.

        Hodges failed to present his claim of incompetency at trial to the state courts, and
he no longer has any state court remedies to exhaust. See Fletcher v. Tennessee,
951 S.W.2d 378, 380–81 (Tenn. 1997) (citing Tenn. Code Ann. § 40-30-217(a) (1996
Supp.)). The claim is therefore procedurally defaulted.

        Hodges argues that substantive competency claims cannot be procedurally
defaulted, citing cases from the Tenth and Eleventh Circuits. See Battle v. United States,
419 F.3d 1292, 1298 (11th Cir. 2005); Walker v. Gibson, 228 F.3d 1217, 1229 (10th Cir.
2000); Adams v. Wainwright, 764 F.2d 1356, 1359 (11th Cir. 1985). However, neither
the Supreme Court nor this court has adopted such a rule, and we decline to do so here.
As the Ninth Circuit noted in LaFlamme v. Hubbard, No. 97-16973, 2000 WL 757525,
at *2 (9th Cir. Mar. 16, 2000), those courts that have held that substantive competency
claims cannot be procedurally defaulted appear to have conflated the distinct concepts
of waiver and procedural default. Although it is true that substantive competency claims
cannot be waived, Pate v. Robinson, 383 U.S. 375, 384 (1966) (“it is contradictory to
argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’
his right to have the court determine his capacity to stand trial”), they can be
procedurally defaulted. We agree with the Ninth Circuit that, “unlike waiver, the
procedural default rule does not rely on the petitioner’s voluntary abandonment of a
known right, but only on the fact that the claim was rejected by the state court on
independent and adequate state grounds.” LaFlamme, 2000 WL 757525, at *2 (internal
quotation marks and formatting omitted). We hereby hold that substantive competency
No. 09-5021         Hodges v. Colson                                                Page 29


claims are subject to the same rules of procedural default as all other claims that may be
presented on habeas.

        Hodges also cannot rely on ineffective assistance of post-conviction counsel to
excuse the default. As we mentioned, the Supreme Court’s decision in Martinez puts yet
another wrinkle in the crushed velvet that is federal habeas corpus jurisprudence, but the
Martinez rule is not implicated here. Martinez held that where the state courts do not
permit ineffective assistance of trial counsel claims to be brought on direct appeal but
require they be brought on collateral attack, ineffective assistance of collateral counsel
can provide cause to excuse procedural default. See Martinez, 132 S. Ct. at 1315–16.
But Tennessee does not require prisoners to bring ineffective assistance of trial counsel
claims on collateral attack—prisoners may bring them on direct appeal. See State v.
Honeycutt, 54 S.W.3d 762, 766 & n.6 (Tenn. 2001); State v. Anderson, 835 S.W.2d 600,
607 (Tenn. Crim. App. 1992); State v. Smith, 2011 Tenn. Crim. App. LEXIS 830, at
*33–35 (Tenn. Crim. App. Nov. 14, 2011). Tennessee’s system does not implicate the
same concerns as those that triggered the rule in Martinez because in Tennessee a
collateral proceeding is not “the first occasion the State allows a prisoner to raise a claim
of ineffective assistance at trial.” Martinez, 132 S. Ct. at 1320. And in any event, here
Hodges did not default an ineffective assistance of trial counsel claim; he defaulted his
claim that he was not competent to stand trial. Accordingly, the Coleman rule still
applies, and ineffective assistance of post-conviction counsel may not provide cause to
excuse default of his competency claim. Because Hodges has not presented any
evidence to justify review of his claim in order to prevent a fundamental miscarriage of
justice, see Carrier, 477 U.S. at 495–96, the substantive competency claim is barred, and
we will review the ineffective assistance claim only to the extent that it concerns failure
to investigate and present additional mitigating evidence.

        In his state post-conviction petition, Hodges claimed that trial counsel were
ineffective for failing to investigate and present additional mitigating evidence.
According to Hodges, his counsel should have obtained prison records that showed he
told a doctor that he was raped as a boy and should have interviewed additional people
No. 09-5021          Hodges v. Colson                                            Page 30


who were familiar with his background. Hodges also asserted that trial counsel failed
to investigate evidence concerning the causes, effects, and treatment of substance abuse;
failed to adequately prepare him for his testimony; and failed to make effective use of
experts.      Hodges requested, and the trial court granted, $15,000 for mitigation
investigation; but the trial court denied Hodges’s request for additional funds to hire a
drug and alcohol specialist, a mitigation specialist, and a fingerprint expert. At the
evidentiary hearing, the trial court heard testimony from Hodges’s trial counsel, a
clinical sociologist who helped prepare Hodges’s mitigation case, the Tennessee District
Public Defender’s Conference chief counsel, and a mitigation specialist retained for the
post-conviction proceeding. Hodges, 2000 WL 1562865, at *4–*12. The trial court
denied Hodges’s petition.

         The appellate court affirmed, finding that Hodges had not presented any evidence
in post-conviction proceedings that was substantially different from the proof introduced
at the penalty phase. Id. at *27. The court found that the experts presented at the
penalty phase, with one exception, were in possession of the same records about Hodges
used by the post-conviction mitigation specialist, and that additional evidence from
further mitigation investigation would have been cumulative to the evidence obtained
by trial counsel before sentencing. Id. It stated, “[g]iven the records presently before
this court, we conclude that trial counsel adequately investigated the appellant’s
background and presented a case in mitigation that was supported by the information
introduced.” Id. The appellate court also held that the trial court did not abuse its
discretion by denying Hodges the additional funds he requested because his post-
conviction counsel were capable of presenting the available mitigation information
without expert assistance. Id. at *29.

         A.       Evidentiary Hearing

         “This court reviews a district court’s decision whether to hold an evidentiary
hearing for an abuse of discretion.” Vroman v. Brigano, 346 F.3d 598, 606 (6th Cir.
2003).
No. 09-5021        Hodges v. Colson                                               Page 31


       Generally, 28 U.S.C. § 2254(e)(2) governs whether a district court should hold
an evidentiary hearing in a habeas proceeding. Section 2254(e)(2) states that, with a few
exceptions, “[i]f the applicant has failed to develop the factual basis of a claim in State
court proceedings, the court shall not hold an evidentiary hearing on the claim.” Hodges
does not argue that one of the exceptions applies; instead, he argues that he did not fail
to develop the factual basis of his claim and is therefore entitled to an evidentiary
hearing.

       We need not decide whether Hodges developed the factual basis of his claim in
state court because the Supreme Court’s decision in Cullen v. Pinholster, 131 S. Ct. 1388
(2011), prohibits us from considering new evidence in this case. The Court held that
“review under § 2254(d)(1) is limited to the record that was before the state court that
adjudicated the claim on the merits.” Id. at 1398. It reasoned that the language of the
statute is “backward-looking” and “requires an examination of the state-court decision
at the time it was made. It follows that the record under review is limited to the record
in existence at that same time i.e., the record before the state court.” Id. The Court also
noted that its holding did not “render[] § 2254(e)(2) superfluous” because it “continues
to have force where § 2254(d)(1) does not bar federal habeas relief.” Id. at 1400–01.

       Hodges’s ineffective assistance claim was brought under § 2254(d)(1), and it was
adjudicated on the merits by the state courts. Pinholster therefore applies. It was a
reasonable exercise of the district court’s discretion to deny an evidentiary hearing on
the claim, because any evidence introduced would be “irrelevant” and “have no bearing
on § 2254(d)(1) review” in any event. See id. at 1400.

       B.      Ineffective Assistance

       To prevail on his claim of ineffective assistance of counsel at sentencing, Hodges
must show both that his counsel’s performance was deficient and that the deficient
performance prejudiced the defense. Strickland, 466 U.S. at 687. With respect to
performance, “counsel should be strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment.” Pinholster, 131 S. Ct. at 1403. An attorney’s failure to reasonably
No. 09-5021        Hodges v. Colson                                             Page 32


investigate the defendant’s background and present mitigating evidence to the jury at
sentencing can constitute ineffective assistance of counsel. Wiggins v. Smith, 539 U.S.
510, 521–22 (2003). However, “Strickland does not require counsel to investigate every
conceivable line of mitigating evidence no matter how unlikely the effort would be to
assist the defendant at sentencing.” Id. at 533. The court must consider not only the
evidence known to counsel, but also whether that evidence “would lead a reasonable
attorney to investigate further.” Id. at 527. “[I]f a habeas claim does not involve a
failure to investigate but, rather, petitioner’s dissatisfaction with the degree of his
attorney’s investigation, the presumption of reasonableness imposed by Strickland will
be hard to overcome.” Campbell v. Coyle, 260 F.3d 531, 552 (6th Cir. 2001) (internal
quotation marks omitted). “[T]here is no prejudice when the new mitigating evidence
‘would barely have altered the sentencing profile presented’ to the decisionmaker.”
Sears v. Upton, 130 S. Ct. 3259, 3266 (2010) (quoting Strickland, 466 U.S. at 700).

       “Establishing that a state court’s application of Strickland was unreasonable
under § 2254(d) is all the more difficult.” Richter, 131 S. Ct. at 788. “The standards
created by Strickland and § 2254(d) are both highly deferential, and when the two apply
in tandem, review is doubly so.” Id. (internal quotation marks and citations omitted).
Therefore, “[w]hen § 2254(d) applies, the 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.” Id.

       The state court record supports the conclusion that Hodges’s trial counsel
reasonably investigated Hodges’s background and presented mitigating evidence. The
Tennessee Supreme Court summarized the mitigation evidence presented at sentencing
as follows:

       In mitigation, the defendant testified and also presented the testimony of
       his mother, his brothers and Dr. Barry Nurcombe, a child psychiatrist.
       This proof showed that the defendant was the next to youngest of his
       mother’s five sons. His mother and father were not married. His father
       was actually married to another woman, but engaged in what one of the
       witnesses described as an “irregular union” with the defendant’s mother
       for eighteen years. The defendant’s father abused the defendant’s mother
No. 09-5021      Hodges v. Colson                                              Page 33


      and was strict with the defendant’s brothers, three of whom were the
      children of another man. The defendant, however, was his father’s
      favorite and was spoiled. Financial difficulties forced the family to move
      about frequently, and defendant’s father supported the family only
      sporadically.
      The defense introduced proof to show that Hodges seemed normal until
      he was twelve years old. At that time, he began to associate with older
      boys, sniff glue and gasoline, be truant from school, and run away from
      home. He also engaged in sexual activities with his younger brother and
      attempted sexual activities with a female cousin. He became involved
      with the juvenile authorities and was confined to a juvenile facility in
      Chattanooga.
      Through his mitigation proof, the defendant attempted to establish that
      a catalyst and major contributing cause of his delinquent and later
      criminal behavior was his rape and sexual abuse by a stranger when he
      was twelve years old. According to the defendant, he accepted a
      stranger’s offer of a ride home when he was playing a short distance from
      his home on Fessler’s Lane in Nashville. Rather than driving Hodges
      home, the stranger drove Hodges to his home and raped him. Fearing
      rejection by his homophobic father and driven by guilt, the defendant
      told no one of this incident until he was arrested in 1990.
      Dr. Nurcombe testified that, while the defendant suffered from an
      antisocial personality disorder, low self-esteem, and substance
      (marijuana) abuse, the killing was motivated by a subconscious desire for
      revenge for the sexual abuse inflicted on him when he was twelve,
      coupled with Hodges’ fear that his family might discover that he was
      engaged in homosexual prostitution since Brown had told Hodge’s [sic]
      sister-in-law shortly before the killing that he was a homosexual
      prostitute. The defense also introduced testimony that Brown dominated
      and manipulated the defendant.
      In rebuttal the State called Dr. James Kyser, a forensic psychiatrist, and
      Dr. Leonard Morgan, a clinical psychologist. Both had examined the
      defendant and concluded that he suffered from an antisocial personality
      disorder. They described persons with this disorder as having “no
      conscience,” being “self centered,” being “notoriously dishonest and
      untruthful,” and having “very little regard for the feelings of others and
      . . . willing to use any means to get what they want, no matter who it
      hurts.” While acknowledging the complicated factors involved in
      antisocial personality disorders, the State’s experts discounted the
      singular importance of the one incident of alleged sexual abuse in
      causing the defendant’s actions. Dr. Morgan concluded that the
No. 09-5021        Hodges v. Colson                                              Page 34


       defendant “was in complete control of his behavior” and not suffering
       from mental illness or emotional disturbance.

Hodges, 944 S.W.2d at 350–51. Because Hodges alleges that his trial counsel’s
mitigation case overlooked significant aspects of his background, the mitigation
testimony merits more detailed attention.

       Dr. Nurcombe, head of child psychiatry at Vanderbilt Medical School, testified
that he specialized in juvenile delinquency and the effects of sexual abuse, and that he
had examined at least 500 children. To assess Hodges, Dr. Nurcombe reviewed his
school records, legal records, mental health records, and the results of an investigation
by a private investigation group concerning his family background. He also interviewed
Hodges for a total of nine hours on three occasions, and had a one-hour phone interview
with him.     The mental health records available to Dr. Nurcombe included five
psychological tests from the age of twelve to late adolescence. He found no evidence
that Hodges was insane, but he did say that Hodges was not mentally healthy. He also
said that Hodges suffered from an antisocial personality disorder, low self-esteem, and
substance abuse.

       In addition to Dr. Nurcombe, Hodges’s counsel presented six other witnesses at
sentencing: Hodges’s mother, three of his brothers, a neighbor, and Hodges himself. The
testimony generally showed that Hodges had a difficult childhood in a low-income,
dysfunctional family and that his behavior significantly worsened at the age of twelve,
around the time he claims to have been raped. However, Hodges himself admitted that
his parents treated him well, and that his mother took him for mental health treatment
many times.

       At the state post-conviction proceeding, Hodges presented additional testimony.
He presented the testimony of his trial counsel, each of whom explained that they did not
sufficiently prepare for the sentencing phase of trial. He also presented the evidence of
Dr. Ann Charvet, a clinical sociologist, who explained that she did not think the
mitigation information she had compiled was used properly by the defense team, but was
unable to suggest any specific information that Dr. Nurcombe or other witnesses failed
No. 09-5021           Hodges v. Colson                                            Page 35


to present to the jury. He presented the testimony of David Keefe, chief counsel of the
Tennessee District Public Defender’s Conference, who had reviewed Hodges’s counsel’s
representation and concluded that it was deficient. Hodges, 2000 WL 1562865, at *10.
And he presented the evidence of mitigation specialist Julie Hackenmiller, who holds
a masters degree in forensic psychology. She discussed mitigation themes that were not
developed at trial.

       Although the evidence presented at the post-conviction proceeding shows that
trial counsel’s performance was not perfect, in light of the substantial and competent
evidence produced at the penalty phase of Hodges’s trial, Hodges has not shown that the
Tennessee state court’s decision that trial counsel’s performance was not deficient was
unreasonable. The burden of proof is on Hodges, Pinholster, 131 S. Ct. at 1398, and
under the “doubly deferential” standards imposed by § 2254(d) and Strickland, id. at
1403, Hodges has not carried that burden. Here, Hodges’s counsel retained a mitigation
specialist and several experts. Defense counsel obtained most of Hodges’s available
school, medical, and juvenile records. Dr. Nurcombe used those records and his
interviews with Hodges to diagnose him, testify at length about his background, and link
his homosexual rape at age twelve and his exposure as a homosexual prostitute to his
crime. The testimony of Hodges’s family members was consistent with Dr. Nurcombe’s
testimony and conclusions. And in post-conviction proceedings, Hodges identified little
information not considered by Dr. Nurcombe.

       The circumstances of this case are similar to those considered by the Supreme
Court in Bobby v. Van Hook, 130 S. Ct. 13 (2009). There, the petitioner claimed that his
counsel were ineffective because their mitigation investigation was insufficient. Id. at
18. The Supreme Court disagreed, finding that although the petitioner was tried less
than three months after his indictment, trial counsel spoke with his parents, an aunt, and
a family friend; consulted with two expert witnesses; contacted the Veterans
Administration and sought medical records; and enlisted a mitigation specialist. Id.
Trial counsel also presented evidence that the petitioner began drinking and using drugs
as a child, witnessed his father abuse his mother, had violent fantasies, attempted suicide
No. 09-5021         Hodges v. Colson                                                  Page 36


five times, suffered from borderline personality disorder, consumed drugs and alcohol
on the day of the crime, and may have been motivated by a “homosexual panic.” Id. at
18–19. The Supreme Court rejected the petitioner’s argument that his counsel could
have found more mitigating evidence by interviewing other members of his extended
family and a psychiatrist who once treated his mother:

        [T]here comes a point at which evidence from more distant relatives can
        reasonably be expected to be only cumulative, and search for it
        distractive from more important duties. . . . [I]t was not unreasonable for
        [the petitioner’s] counsel not to identify and interview every other living
        family member or every therapist who once treated his parents.

Id. at 19.

        Here, given the mitigation evidence Hodges’s counsel gathered from his family
and Dr. Nurcombe’s review of his background, it was reasonable for counsel not to
identify and interview more distant family members or review their mental health. And
to the extent that Hodges argues that counsel were ineffective for relying on Dr.
Nurcombe, see Pet.’s Br. at 15 (describing Nurcombe as “a Court TV pundant [sic]”),
112 (Nurcombe “fail[ed] to conduct the sort of thorough personal history that is
necessary to come to an accurate diagnosis”), his argument fails because Hodges has not
shown that trial counsel had good reason to believe Dr. Nurcombe was incompetent, or,
for that matter, that he was incompetent.6 See Fautenberry v. Mitchell, 515 F.3d 614,
625 (6th Cir. 2008) (“[The petitioner] has not shown that counsel had good reason to
believe that [the expert] was incompetent, and we conclude that it was objectively
reasonable for counsel to rely upon the doctor’s opinions and conclusions.” (internal
quotation marks omitted)); Lundgren v. Mitchell, 440 F.3d 754, 772 (6th Cir. 2006)
(counsel’s reliance on mental health experts was reasonable because petitioner presented
no evidence that they were not competent); Clark v. Mitchell, 425 F.3d 270, 286 (6th
Cir. 2005) (counsel reasonably relied on the opinions of a psychologist and psychiatrist
in not seeking additional testing).


        6
         Indeed, we believe that the record shows that Dr. Nurcombe’s theory and testimony were
competent.
No. 09-5021         Hodges v. Colson                                               Page 37


        Where, as here, trial counsel puts on a reasonable mitigation case and presents
nearly all of the same information as presented by the petitioner’s post-conviction
experts, we cannot find deficient performance. And we certainly cannot find that the
state court’s decision that trial counsels’ performance was not deficient was
unreasonable. “As Strickland made clear, our role on habeas review is not to nitpick
gratuitously counsel’s performance. After all, the constitutional right at issue here is
ultimately the right to a fair trial, not to perfect representation.” Smith v. Mitchell, 348
F.3d 177, 206 (6th Cir. 2003) (citing Strickland, 466 U.S. at 684).

        Because we find that trial counsel’s performance was not deficient, we need not
address whether Hodges was prejudiced by that performance. Hodges is not entitled to
habeas relief on this claim.

                                    CONCLUSION

        For the foregoing reasons, we AFFIRM the district court’s denial of Hodges’s
petition for habeas relief.
No. 09-5021          Hodges v. Colson                                                   Page 38


            ____________________________________________________

              CONCURRING IN PART AND DISSENTING IN PART
            ____________________________________________________

        HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part.
Because I conclude that the Tennessee courts unreasonably applied Strickland v.
Washington, 466 U.S. 668 (1984), I respectfully dissent from Part III of the majority
opinion.

        A. Performance

        The Supreme Court has explicitly approved using ABA Guidelines on attorney
performance in effect at the time of a defendant’s trial as “guides to determining what
is reasonable” performance by counsel. Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct.
1473, 1482 (2010); Rompilla v. Beard, 545 U.S. 374, 387 (2005); Wiggins v. Smith, 539
U.S. 510, 524 (2003); see also Bobby v. Van Hook, 558 U.S. 4, 130 S. Ct. 13, 16 (2009)
(per curiam). “ABA Guidelines are not ‘inexorable commands’; rather, they are ‘only
guides to what reasonableness means, not its definition.’” Post v. Bradshaw, 621 F.3d
406, 418 (6th Cir. 2010) (quoting Bobby, 130 S. Ct. at 17) (some internal quotation
marks omitted)). As discussed by the majority, the 1989 ABA Guidelines for the
Appointment and Performance of Counsel in Death Penalty Cases,1 which were in effect
at the time of Hodges’s 1992 trial, disapprove entering a guilty plea in a capital case
without the prosecution’s agreement not to seek the death penalty in exchange for the
guilty plea. The Guidelines state that “[i]t is suggested that [pleading a client guilty and
then putting on a contested penalty hearing] is an effective strategy only when the
attorney knows without any doubt that no death sentence will result. Any other
‘strategy’ for entering a guilty plea is ill-advised and should be abandoned.” ABA
Guidelines § 11.6.2 cmt. n.2 ) (emphasis in original) (quoting Dept. of Public Advocacy,
KENTUCKY PUBLIC ADVOCATE DEATH PENALTY MANUAL, p. 328–333


        1
          ABA Guidelines for the Appointment and Performance of Counsel
i n     D e a t h   P e n a l t y     C a s e s     ( 1 9 8 9 ) ,     a v a i l a b l e     a t :
http://www.americanbar.org/content/dam/aba/migrated/DeathPenalty/RepresentationProject/PublicDoc
uments/1989Guidelines.authcheckdam.pdf
No. 09-5021          Hodges v. Colson                                               Page 39


(1983)). Further, “[i]f no written guarantee can be obtained that death will not be
imposed following a plea of guilty, counsel should be extremely reluctant to participate
in a waiver of the client’s trial rights.” Id. § 11.6.3 cmt.; see also id. § 11.6.2 cmt.
(“Counsel should insist that no plea to an offense for which the death penalty can be
imposed will be considered without a written guarantee, binding on the court or other
final sentencer, that death will not be imposed.”).

        “[I]n a capital case, counsel must consider in conjunction both the guilt and
penalty phases in determining how best to proceed.” Florida v. Nixon, 543 U.S. 175,
192 (2004). Donald Dawson, one of Hodges’s trial attorneys, testified in the post-
conviction proceeding in state trial court that the decision to have Hodges plead guilty
was made during the weekend prior to trial when the attorneys “sat down and pretty
much saw the guilt-innocence phase as hopeless.” J.A. at 1745. The attorneys were
“trying to figure out what was the way to limit the jurors[’] bad feelings about us [a]nd
[we] thought that by pleading guilty, we could give the defense some credibility.” Id.
at 1746; see also id. (“[W]e [thought we] could get the jury to sort of be thankful to us
that we didn’t make them sit through a guilt-innocence phase and we wouldn’t lose our
own credibility by arguing the guilt or innocence and we would have a better chance to
get a life verdict.”).

        On its face, this appears to be the sort of strategic trial decision owed deference
under Strickland. However, Dawson also testified that the defense team did “[n]ot
adequately” think through the decision to plead guilty: “we never sat down and did an
analysis of what are the benefits of going to trial, what are the deficits and where did that
lead us.” Id. Dawson testified that at the time of trial, the defense team had not read
available literature setting out standards for adequate representation in capital cases. Id.
at 1747. In particular, the attorneys were unfamiliar with “the advantages of putting [on]
a defense [in the guilt phase] consistent with your mitigation theory.” Id. They also
failed to appreciate the advantages of “hav[ing] the jury . . . have a chance to look at
your client longer and find him guilty[,] [a]nd then decide [‘]now that we find him
guilty, let’s see . . . [w]hat is the proper sentencing[’].” This would allow the jury to not
No. 09-5021        Hodges v. Colson                                               Page 40


view the penalty phase as its only opportunity to pass judgment on the defendant’s
actions. Id. at 1748; see also id. at 1841–43 (post-conviction hearing testimony of
Michael Terry). The attorneys conducted no legal research into proper considerations
in deciding whether to plead guilty, and did not weigh the possible benefits of putting
on a case at the guilt phase of trial. Id. at 1748–1751; see also id. at 1839 (testimony of
Michael Terry).

       Dawson also testified that nearly all of the evidence that he and the other
attorneys hoped to keep out by pleading guilty came in anyway at the sentencing phase,
as should have been clear from an analysis of Tennessee law. Id. at 1752–53. Finally,
Dawson stated that when he advised Hodges to plead guilty, the attorneys had “totally
forgotten” about the third count of the indictment, aggravated robbery, a conviction of
which constituted an aggravating factor for purposes of the penalty phase. Id. at
1756–57. In fact, Dawson did not “recall having talked to Mr. Hodges at all about
pleading to the robbery.” Id. at 1757. Both Dawson and co-trial-counsel Michael Terry
stated that pleading guilty was a mistake. Id. at 1755, 1762–63, 1842. Terry stated that
he “would not plead a capital defendant guilty again in any case.” Id. at 1842.

       Additionally, in the post-conviction hearing, the court heard testimony from
David Keefe, chief counsel for the capital division of the Tennessee District Public
Defender’s Conference, who examined the conduct of Hodges’s trial counsel at the
request of Hodges’s post-conviction attorneys. Keefe testified that he “believed the
decision to plead guilty was wrong and hastily made. He opined that, by pleading guilty,
the defense team confused the jury and lost an array of appellate issues.” Hodges,
2000 WL 1562865, at *10. Thus, although the decision to plead guilty was indeed a
“strategic” decision designed to curry favor with the jury and limit the prosecution’s
presentation of evidence, it was not intelligently made based on a weighing of the
advantages and disadvantages of going to trial in the guilt phase, and was made without
reference to secondary authorities providing standards for representation in death penalty
cases. Further, the strategy was ill-designed to achieve one of its primary aims: limiting
presentation of damaging evidence about the crime. Therefore, advising Hodges to
No. 09-5021         Hodges v. Colson                                               Page 41


plead guilty was inconsistent with the prevailing standard of competent representation
in death penalty cases.

        Post v. Bradshaw, 621 F.3d 406 (6th Cir. 2010), discussed by the majority, is
distinguishable. In Post, the defendant “refused to plead guilty, despite the State’s offer
of a life sentence in return for a guilty plea.” Id. at 417. The case addressed the question
whether the decision to enter a no-contest plea and to submit the penalty phase to a
three-judge panel rather than a jury was objectively reasonable. The court concluded
that the defendant’s weak mitigation evidence made the attorneys’ decision to forgo the
right to a penalty-phase jury reasonable. Id. The Post court thus stated that “Post’s
counsel were between a rock and a hard place in determining the best way to spare him
a death sentence, given the overwhelming evidence of his guilt, his numerous
confessions, and his refusal to plead guilty.” Id. at 418. Although these considerations
are similar to those facing Hodges’s attorneys, the Post decision does not suggest that
defense counsel failed to appreciate the import of their decision. Indeed, the opinion
indicates that counsel weighed the pros and cons of pleading no contest and putting the
case before a three-judge panel instead of a jury. Id. Further, part of the rationale
advanced by the Post court in justifying counsel’s decision was that “[b]y pleading no
contest, [Post] would ‘avoid[ ] the ordeal’ of a guilt phase and have his sentence
‘determined without the sentencing court hearing all of the adverse testimony that would
be produced at trial.’” Id. at 417 (quoting ABA Standards for Criminal Justice 4–6.1
cmt. (2d ed. 1980) (“The Defense Function”) (emphasis and third bracket added by
Post)). Although Hodges’s defense team intended their decision to plead guilty to have
the same effect, in reality nearly all of the testimony that would have been introduced
at trial was introduced during the penalty phase. The miscalculation was not a matter
of a sound decision turning out to be a mistake in hindsight. Rather, the decision had no
legal support and was clearly a mistake in the first place. Hodges’s attorneys hoped that
pleading guilty would be a beneficial strategy, but had little sound reasoning behind this
belief. See Post, 621 F.3d at 428 (Cole, J., dissenting) (“I believe that the Constitution
requires attorneys to make strategic judgments based on something more concrete than
unsubstantiated hope, especially when their client’s life hangs in the balance.”).
No. 09-5021         Hodges v. Colson                                                  Page 42


        Nixon is also distinguishable. In Nixon, defense counsel was faced with
overwhelming evidence of Nixon’s guilt. After a failed attempt to negotiate a guilty plea
in exchange for the prosecutor dropping the death penalty, defense counsel “concluded
that the best strategy would be to concede guilt, thereby preserving his credibility in
urging leniency during the penalty phase.” Nixon, 543 U.S. at 181. Instead of advising
his client to enter a guilty plea, however, defense counsel decided to proceed to the guilt
phase of trial, but to concede Nixon’s guilt to the jury. In opening statement, defense
counsel “acknowledged Nixon’s guilt and urged the jury to focus on the penalty phase.”
Id. at 182. The prosecution introduced extensive evidence of Nixon’s guilt during the
guilt phase. Defense counsel “cross-examined [the prosecution’s] witnesses only when
he felt their statements needed clarification, . . . and he did not present a defense case.”
Id. at 183. He also objected to some evidence as unduly prejudicial. “In his closing
argument, [defense counsel] again conceded Nixon’s guilt, and reminded the jury of the
importance of the penalty phase.” Id. (internal citation omitted). The jury found Nixon
guilty, and the case proceeded to the penalty phase, at which defense counsel presented
testimony of a number of witnesses. Id. at 183–84. Importantly, “[t]he State presented
little evidence during the penalty phase, simply incorporating its guilt-phase evidence
by reference.” Id. at 184.

        The Nixon Court did not address the issue presented here. In fact, counsel in
Nixon did exactly what Hodges’s counsel now concede they should have done. In
approving of Nixon’s attorney’s strategic decision, the Court discussed the downside to
pleading guilty in lieu of going to trial at the guilt phase:

        As [defense counsel] determined here, pleading guilty without a
        guarantee that the prosecution will recommend a life sentence holds little
        if any benefit for the defendant. See ABA Guidelines for the
        Appointment and Performance of Defense Counsel in Death Penalty
        Cases § 10.9.2, Commentary (rev. ed. 2003), reprinted in 31 Hofstra L.
        Rev. 913, 1045 (2003) (“If no written guarantee can be obtained that
        death will not be imposed following a plea of guilty, counsel should be
        extremely reluctant to participate in a waiver of the client’s trial rights.”).
        Pleading guilty not only relinquishes trial rights, it increases the
        likelihood that the State will introduce aggressive evidence of guilt
        during the sentencing phase, so that the gruesome details of the crime are
No. 09-5021        Hodges v. Colson                                               Page 43


       fresh in the jurors’ minds as they deliberate on the sentence. See [Gary]
       Goodpaster, [The Trial for Life: Effective Assistance of Counsel in Death
       Penalty Cases], 58 N.Y.U. L. Rev. 299, 331[,] 558–59, 560–61 [(1983)].

543 U.S. at 191 n.6 (citation altered). Had Hodges’s counsel acted as Nixon’s did by
proceeding to trial and acknowledging guilt rather than pleading guilty, there would have
been no constitutionally deficient performance.

       Addressing Hodges’s Strickland claim, the Tennessee Court of Criminal Appeals
reasoned:

       Although it is true that the appellant ultimately gained nothing by
       pleading guilty, the record persuasively demonstrates that the appellant
       had little to gain by insisting upon a trial. It is undisputed that the
       evidence against the appellant was overwhelming and that his chances of
       acquittal were virtually non-existent. Indeed, in advising the appellant,
       defense counsel was faced with two options: plead not guilty to the
       indictment and face a full trial; or plead guilty to the indictment and face
       limited evidence in a sentencing hearing with an opportunity to trade on
       his acceptance of his guilt and remorse. Confronted with the
       overwhelming evidence of the appellant’s guilt, defense counsel advised
       the appellant to plead guilty in the reasonable hope of obtaining leniency
       during the sentencing phase. Defense counsel reasonably believed that
       the jury would view the appellant’s guilty plea as an expression of
       remorse warranting a less severe sentence than that imposed upon a
       defendant who protests his innocence in the face of overwhelming
       evidence of guilt. Moreover, by pleading guilty, the appellant eliminated
       the presentation to the jury of all of the evidence available to establish
       the appellant’s guilt of the murder. The hard callous facts behind the
       offenses, in essence, were desensitized by avoiding the guilt phase. The
       absence of an in-depth recitation of facts enabled the appellant to seek
       some sympathy from the jury in the face of mitigating evidence.

Hodges v. State, 2000 WL 1562865, at *20 (Tenn. Crim. App. 2000). The court
reasonably pointed to Hodges’s counsel’s “hope of obtaining leniency during the
sentencing phase” as a legitimate justification for pleading guilty. Id. However, the
other reasons advanced in support of counsel’s decision lack support in the record. Most
of the evidence of the circumstances of the murder was allowed in the penalty phase, and
the “hard callous facts behind the offense” were not “desensitized by avoiding the guilt
No. 09-5021         Hodges v. Colson                                             Page 44


phase.” Rather, those newly-presented facts were fresh in jurors’ minds when they
deliberated over imposition of the death penalty. As Gary Goodpaster observed:

        [G]oing through a guilt phase trial helps to segregate and distance from
        the sentencer the prosecution's strongest case against the defendant.
        Were defendant simply to admit guilt and go straight to the penalty phase
        trial, the prosecution at that time would undoubtedly present much of
        what it otherwise would have presented during the guilt phase.

Goodpaster, 58 N.Y.U. L. Rev. at 331. Hodges’s counsel did not consider the
ramifications of pleading guilty rather than proceeding to the guilt phase of the trial.
Much of the evidence they hoped to exclude was admissible under Tennessee law.
Counsel admitted forgetting about the aggravated robbery charge, itself an aggravating
factor once Hodges pleaded guilty. Although I am mindful of the deference due to the
state court under AEDPA, I must conclude that the decision that counsel met minimum
constitutional standards involved an unreasonable application of clearly established
federal law.

        B. Prejudice

        In order to demonstrate prejudice, “the defendant must show that there is a
reasonable probability that, but for counsel's errors, he would not have pleaded guilty
and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

        The majority is correct that Hodges himself has never stated that, but for his
counsel’s deficient advice, he would not have pleaded guilty and would have insisted on
going to trial. Additionally, Hodges’s habeas petition alleged that counsel’s advice to
plead guilty constituted ineffective assistance, but did not specifically state that, had
counsel advised him otherwise, he would not have pleaded guilty. Hodges’s brief on
appeal states simply that “where Mr. Hodges had nothing to gain by pleading guilty, he
certainly would not have entered a guilty plea if his lawyers had given him accurate
information – in fact, had Mr. Hodges’s lawyers done their research, they wouldn’t have
advised Mr. Hodges to plead guilty at all.” (Opening Br. of Appellant 83.) However,
this is not the typical guilty plea case.
No. 09-5021         Hodges v. Colson                                               Page 45


        As the majority correctly notes, Hodges was not protesting his innocence leading
up to trial. Rather, he had admitted his guilt in one or more television interviews and in
letters to the prosecution and the trial court (against the advice of counsel). See J.A. at
1704, 1786 (testimony of Donald Dawson). This certainly suggests that Hodges was
ready to plead guilty, and that he would have been convicted had he pleaded not guilty.
That, however, does not settle the issue. The issue here is not whether counsel were
competent in their assessment and advice regarding the likelihood of conviction at trial,
but rather in advising that there were significant benefits to forgoing trial. See Griffin
v. United States, 330 F.3d 733, 737 (6th Cir. 2003) (noting that it is “easier to show
prejudice in the guilty plea context” than in other contexts “because the claimant need
only show a reasonable probability that he would have pleaded differently”).

        In Hill, the Court stated that “where the alleged error of counsel is a failure to
investigate or discover potentially exculpatory evidence, the determination whether the
error ‘prejudiced’ the defendant by causing him to plead guilty rather than go to trial will
depend on the likelihood that discovery of the evidence would have led counsel to
change his recommendation as to the plea.” 474 U.S. at 59. Hodges’s claim here is not
that counsel failed to investigate or discover potentially exculpatory evidence that would
have led him to change his plea, so this language from Hill is not squarely on point.
Hodges’s claim is, however, that counsel failed to adequately consider the benefits of
going to trial, and based their decision to advise him to plead guilty on an erroneous
understanding of the consequences of a guilty plea at sentencing and insufficient legal
research and investigation into the proper conduct of a capital case. This parallels the
reasoning of Hill. Hodges’s two primary trial attorneys both testified that had they been
aware of the proper standards for death penalty representation and had they accurately
considered the drawbacks to pleading guilty, they would have advised Hodges to go to
trial. J.A. at 1755, 1842. Thus, there is compelling evidence that counsel would have
“changed [their] recommendation as to the plea.” Hill, 474 U.S. at 59.

        The ultimate question under Strickland and Hill is whether the defendant has
“established the reasonable probability that he would not have entered his plea but for
No. 09-5021         Hodges v. Colson                                               Page 46


his counsel’s deficiency.” Premo v. Moore, 131 S. Ct. 733, 744 (2011) (emphasis
added). Although Hodges has not stated under oath that he would not have pleaded
guilty if his counsel had advised against it, counsel’s testimony that they would have
advised him against pleading guilty establishes the requisite “reasonable probability” of
a different outcome. This is not a case where the decision to plead guilty or not guilty
was based on the likelihood of conviction versus acquittal. Rather, the choice was made
on the likely effect of the choice on the outcome of the penalty phase, and it is clear that
counsel’s advice in this regard was constitutionally ineffective. Had Hodges’s counsel
advised him to plead not guilty, there is no reason to think he would not have heeded
their advice. His conduct during the penalty phase, including taking the stand to provide
testimony about his background in order to establish mitigating factors, demonstrates
that he preferred a sentence of life imprisonment over death. Had his counsel informed
him that the better strategy for achieving this outcome was to plead not guilty and go to
trial in the guilt phase, there is more than a reasonable probability that Hodges would
have taken their advice.

        In sum, although the Supreme Court recently cautioned that “hindsight cannot
suffice for relief when counsel’s choices [to advise the defendant to plead guilty] were
reasonable and legitimate based on predictions of how the trial would proceed,” and that
“[t]here is a most substantial burden on the claimant to show ineffective assistance” in
that situation, Premo, 131 S. Ct. at 745, counsel’s choices here were based on
unreasonable predictions about how the penalty phase would proceed, particularly about
how pleading guilty would affect the prosecution’s ability to present damaging evidence
about the details of the crime, and a complete failure to consider the benefits of going
through the guilt phase. Further, Hodges has made an adequate showing of prejudice.

        Because I conclude that the state court unreasonably applied Strickland, I
respectfully dissent from Part III of the majority’s opinion and would grant Hodges’s
petition for habeas corpus on this issue.
