                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 07a0110p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                       X
                               Petitioner-Appellant, -
 ROBERT CARL FOLEY,
                                                        -
                                                        -
                                                        -
                                                           No. 04-5746
            v.
                                                        ,
                                                         >
 PHILIP PARKER, Warden, Kentucky State                  -
                                                        -
                              Respondent-Appellee. -
 Penitentiary,

                                                        -
                                                       N
                       Appeal from the United States District Court
                      for the Eastern District of Kentucky at London.
                     No. 00-00552—Danny C. Reeves, District Judge.
                                     Argued: October 25, 2006
                               Decided and Filed: March 22, 2007
                    Before: MARTIN, GILMAN, and COOK, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Timothy T. Riddell, PERCH & TOBY, Lexington, Kentucky, for Appellant. David A.
Smith, OFFICE OF THE ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.
ON BRIEF: Timothy T. Riddell, PERCH & TOBY, Lexington, Kentucky, Milton Coburn Toby,
Georgetown, Kentucky, for Appellant. David A. Smith, Tami Allen Stetler, OFFICE OF THE
ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.
       COOK, J., delivered the opinion of the court in which, GILMAN, J., joined. MARTIN, J.
(pp. 13-19), delivered a separate opinion concurring in part and dissenting in part.
                                       _________________
                                           OPINION
                                       _________________
        COOK, Circuit Judge. Petitioner Robert Carl Foley was convicted of murder in Kentucky
and sentenced to death. After a lengthy appellate process in the Kentucky courts, Foley filed a
habeas petition raising thirty-six separate grounds for relief. The district court reviewed and denied
each one, but granted a Certificate of Appealability (COA) as to four of Foley’s claims. Upon
Foley’s request, we expanded the COA to include a fifth claim. For the reasons set forth below, we
affirm the district court’s judgment.



                                                  1
No. 04-5746           Foley v. Parker                                                           Page 2


                                           I. Background
        Robert Carl Foley shot and killed the brothers Rodney and Lynn Vaughn in Foley’s home
in Laurel County, Kentucky, on August 17, 1991. A number of people, including the Vaughn
brothers, Phoebe Watts, Ronnie and Bill Dugger, Rocky and Lisa Arthur, Marge Foley (petitioner’s
wife), Louise Bridges (Foley’s aunt), and at least six children, were gathered at the Foley home
when Foley returned from a car auction with his friend Danny Joe Bryant. Although the other men
present had stored their guns in a kitchen cabinet upon arrival, Foley kept a .38 Colt snubnose
revolver stored under his belt and concealed by his shirt.
        The group sat at the kitchen table drinking beer, and tempers soon flared between Foley and
Rodney Vaughn, who was intoxicated and belligerent. Foley admitted he instigated a fight by
punching Rodney. After a brief scuffle, Danny Joe Bryant separated the men, and they returned to
the table to continue drinking. The situation escalated, however, when Rodney pointed at Foley and
warned Foley not to sucker-punch him again. Foley responded violently, knocking Rodney down
with his fist several times. Foley then drew his revolver and shot Rodney six times at close range,
in the chest, left arm, and back.
       The house emptied during the melee, leaving only Foley, the Vaughn brothers, and Ronnie
Dugger in the house. As the only living witness (other than Foley) to what happened next, Ronnie
Dugger explained that Foley retrieved another gun from the kitchen cabinet, returned to the living
room where Lynn Vaughn remained next to his dying brother, and shot Lynn in the back of the head.
He then kicked Rodney Vaughn’s corpse, saying “you son of a bitch, you caused me to have to kill
my partner.” Later, Foley explained that he hated to kill Lynn, “but blood is thicker than water.”

       Foley then organized Ronnie Dugger, Bill Dugger, and Danny Joe Bryant to assist him in
disposing the bodies and covering up the crimes. They dumped the Vaughn brothers’ bodies in
Sinking Creek in Laurel County and attempted to cover up the incident and cast blame on other
people. Authorities discovered the bodies two days later and indicted Foley on two counts of capital
murder and other related offenses. Foley was later charged with four more murders after police
discovered four corpses in a septic tank in Laurel County.
        Foley’s trial for the Vaughn murders was scheduled for August 11, 1993. On the eve of trial,
August 10, 1993, Foley’s attorney moved for a change of venue because of pretrial publicity, which
the trial court denied after a hearing. The jury found Foley guilty of two counts of murder and,
following the jury’s recommendation, the trial court sentenced Foley to death. The Kentucky
Supreme Court affirmed the convictions and sentences in November 1996, and the United States
Supreme Court denied certiorari in 1997. Foley v. Commonwealth, 942 S.W.2d 876 (Ky. 1996),
cert. denied, 522 U.S. 893 (1997). Foley filed a post-conviction petition pursuant to Ky. R. Crim.
P. 11.42, but the trial court denied relief. The Kentucky Supreme Court affirmed that decision in
March 2000. Foley v. Commonwealth., 17 S.W.3d 878 (Ky.), cert. denied, 531 U.S. 1055 (2000).
Foley then moved for a new trial, but the trial court denied the motion, and the Kentucky Supreme
Court affirmed. Foley v. Commonwealth, No. 2002-SC-0222-TG, 2003 WL 21993756, at *1 (Ky.
Aug. 21, 2003).
        While the state proceedings pended, Foley moved for a stay of execution in the district court
and later filed his petition for a writ of habeas corpus. The district court granted Foley leave to
amend his petition to include the claim that formed the basis of his state-court motion for a new trial.
The magistrate judge reviewed Foley’s petition, the Warden’s response, and subsequent pleadings.
The magistrate judge recommended that the petition be denied and that a COA be granted with
respect to the merits of three claims and the timeliness of the claim Foley added by amendment.
Foley filed objections, and the Warden gave notice that he was not going to respond to Foley’s
No. 04-5746           Foley v. Parker                                                          Page 3


objections. The district court adopted the magistrate judge’s report in part and rejected it in part.
The district court denied the petition and granted Foley a COA with respect to four claims, including
both the timeliness and the merits of the claim added by amendment. Foley applied to this court for
an expansion of the COA, which we granted by adding a fifth claim.
                                      II. Standard of Review
        We review de novo a district court’s legal conclusions and mixed questions of law and fact,
and we review its factual findings for clear error. Armstrong v. Morgan, 372 F.3d 778, 781 (6th Cir.
2004); Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999). Under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), a district court shall not grant a habeas petition with respect
to any claim that was adjudicated on the merits in the state courts unless the adjudication resulted
in a decision that (1) was contrary to, or involved an unreasonable application of, clearly established
federal law as determined by the United States 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 on 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 legal principle from
the Supreme Court’s decisions but unreasonably applies it to the facts of the petitioner’s case. Id.
In analyzing whether a state court decision is “contrary to” or an “unreasonable application” of
clearly established Supreme Court precedent, a federal court may only look 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 (2003); Williams, 529 U.S. at 412. The court may look to lower courts of appeals’
decisions, not as binding precedent, but rather to inform the analysis of Supreme Court holdings to
determine whether a legal principle had been clearly established by the Supreme Court. Hill v.
Hofbauer, 337 F.3d 706, 716 (6th Cir. 2003). Finally, the habeas petitioner has the burden of
rebutting, by clear and convincing evidence, the presumption that the state court’s factual findings
were correct. See 28 U.S.C. § 2254(e)(1); McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir. 2004).
       III. Ineffective Assistance of Counsel During the Penalty Phase of Foley’s Trial
         Foley claims he was denied effective assistance of counsel because his trial counsel failed
to fully investigate his background and did not produce any mitigating evidence during the penalty
phase of his trial. He contends that his counsel should have called six family members, five friends,
and a school teacher who had not seen him since the 1970s to testify on his behalf. Following a
detailed hearing in the Kentucky trial court pursuant to Ky. R. Crim. P. 11.42, the Kentucky
Supreme Court reviewed this claim and denied it. The magistrate judge reviewed the Rule 11.42
hearing record and the Kentucky Supreme Court’s decision, concluding that Foley’s claim should
be denied because the Kentucky Supreme Court’s conclusion was neither contrary to nor an
unreasonable application of clearly established federal law. The district court agreed and denied
Foley’s claim.
Strickland v. Washington and AEDPA
        AEDPA limits our inquiry to assessing whether the Kentucky Supreme Court’s conclusion
that Foley could not show either deficient performance or prejudice under Strickland v. Washington,
466 U.S. 668 (1984), was contrary to, or involved an unreasonable application of, clearly established
federal law as determined by the Supreme Court at the time the Kentucky Supreme Court issued its
June 15, 2000, decision reviewing his claim. Thus, despite Foley’s protestations, our review will
ignore interpretations of Strickland by the Supreme Court in cases such as Rompilla v. Beard, 545
No. 04-5746           Foley v. Parker                                                          Page 4


U.S. 374 (2005), and Wiggins v. Smith, 539 U.S. 510 (2003), which were decided after the Kentucky
Supreme Court’s adjudication of Foley’s claim. Foley’s reliance on our court’s interpretations of
Strickland in cases such as Harries v. Bell, 417 F.3d 631 (6th Cir. 2005), and Hamblin v. Mitchell,
354 F.3d 482 (6th Cir. 2003), is similarly misplaced. Our sole question with respect to this claim,
then, is whether the Kentucky Supreme Court’s Strickland application was unreasonable. We hold
that it was not.
        To prevail on an ineffective-assistance claim, a petitioner must satisfy both the performance
and prejudice prongs of the Strickland test. 466 U.S. at 688, 692. To satisfy the performance prong,
a petitioner must prove that his counsel’s representation “fell below an objective standard of
reasonableness.” Id. at 688. As the Strickland Court cautioned, our post-hoc review of
        counsel’s performance must be highly deferential. It is all too tempting for a
        defendant to second-guess counsel’s assistance after conviction or adverse sentence,
        and it is all too easy for a court, examining counsel’s defense after it has proved
        unsuccessful, to conclude that a particular act or omission of counsel was
        unreasonable.
Id. at 689. The defendant’s burden requires him to “overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.” Id. (citation
omitted).
         To satisfy Strickland’s prejudice prong, a petitioner must prove that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. “When a [petitioner] challenges a death sentence . . . , the question is whether
there is a reasonable probability that, absent the errors, the sentencer—including an appellate court,
to the extent it reweighs the evidence—would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.” Id. at 695.
Performance
        As the only “clearly established federal law” relevant to Foley’s appeal, we look to
Strickland to gauge Foley’s claims. Strickland instructs that we assess the reasonableness of
counsel’s decision to limit his investigation: “counsel has a duty to make reasonable investigations
or to make a reasonable decision that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s
judgments.” Id. at 691. The defendant’s role in informing counsel and influencing decisions must
be taken into account. As Strickland explained,
        [t]he reasonableness of counsel’s actions may be determined or substantially
        influenced by the defendant’s own statements or actions. Counsel’s actions are
        usually based, quite properly, on informed strategic choices made by the defendant
        and on information supplied by the defendant. In particular, what investigation
        decisions are reasonable depends critically on such information. For example, when
        the facts that support a certain potential line of defense are generally known to
        counsel because of what the defendant has said, the need for further investigation
        may be considerably diminished or eliminated altogether. And when a defendant has
        given counsel reason to believe that pursuing certain investigations would be
        fruitless or even harmful, counsel’s failure to pursue those investigations may not
        later be challenged as unreasonable.
Id. at 691.
No. 04-5746           Foley v. Parker                                                           Page 5


         Here, Foley played an active role in influencing counsel’s decisions, and Foley himself
limited the evidence counsel could put on in mitigation because he did not want his family to testify
on his behalf. Foley made this decision despite several attempts by counsel to discuss “what
evidence we were going to put on in mitigation.” Foley participated in his own defense throughout
the trial, maintaining his own “file” on his case, and counsel’s decision to follow his client’s wishes
was reasonable. Counsel was quite familiar with Foley. He had represented Foley in an earlier
murder trial and was well-acquainted with Foley, his family, and his background, and thus had
reason to limit his investigation into Foley’s past. Moreover, as we explain below, the testimony
that Foley asserts his attorney should have introduced in mitigation had limited value and likely
would have damaged Foley further in the eyes of the jury.
Prejudice
        Foley’s claim ultimately must fail, however, because Foley is not able to establish a
reasonable probability that the jury would have decided not to sentence him to death if it had heard
the testimony that he argues should have been presented. See Strickland, 466 U.S. at 695. Some
of the testimony could be considered mitigating, in that it described Foley in positive terms: nice,
giving, loving, sweet, a good family man, and a hard worker. Much of the evidence, though, was
either not mitigating or distinctly negative. Several witnesses mentioned Foley’s penchant for
violence, a description difficult to reconcile with the positive accounts but consistent with the crimes
the jury knew Foley had committed. Notably, Foley has never come forward with evidence of a
difficult childhood or mental problems that might have portrayed him in a more sympathetic light.
Although family members testified that Foley had suffered head injuries, there were no medical
records to substantiate these claims or to prove that Foley was mentally impaired at the time of his
crimes.
         A survey of our previous cases bolsters our view that the Kentucky Supreme Court’s
conclusion that Foley cannot establish prejudice was correct. See Abdur’Rahman v. Bell, 226 F.3d
696, 708-09 (6th Cir. 2000) (finding deficient performance but not prejudice where counsel failed
to investigate petitioner’s long history of violent behavior and antisocial personality disorders and
where the evidence contained a description of petitioner’s motive for killing a fellow prison inmate
and a history of violent character traits); Scott v. Mitchell, 209 F.3d 854, 880-81 (6th Cir. 2000)
(finding no prejudice where the mitigating circumstances petitioner wanted presented—loyalty to
his siblings, girlfriend, and children, and a violent environment throughout his upbringing—would
have been negated by evidence of his history of robbery, assault, kidnaping, and other violent acts).
        In addition, although our review is limited to assessing the Kentucky Supreme Court’s
decision under the strictures of AEDPA, we note the telling contrasts between this case and those
in which this court has granted relief. See, e.g., Harries, 417 F.3d at 639-40 (counsel’s inadequate
investigation failed to discover evidence of traumatic childhood, including physical abuse, exposure
to extreme violence, brain damage, and mental illness); Hamblin, 354 F.3d at 490-91 (counsel
conducted no investigation into mitigation, which included evidence of unstable and deprived
childhood and probable mental disability or disorder); Coleman v. Mitchell, 268 F.3d 417, 450-52
(6th Cir. 2001) (defendant was abandoned by his mother and raised by his grandmother, who abused
him both physically and psychologically, neglected him while running her home as a brothel and
gambling house, involved him in her voodoo practice, and exposed him to group sex, bestiality, and
pedophilia); Carter v. Bell, 218 F.3d 581, 594-600 (6th Cir. 2000) (counsel deficient for failing to
investigate and present mitigating evidence of petitioner’s poor, violent, and unstable childhood,
childhood and adult head injuries, psychiatric problems, and positive relationships with his
step-children, family, and friends); Skaggs v. Parker, 235 F.3d 261, 269-75 (6th Cir. 2000) (post-
conviction evidence indicated that Skaggs was mentally retarded, suffered from organic brain
damage, and exhibited psychotic, paranoid, and schizophrenic features).
No. 04-5746            Foley v. Parker                                                            Page 6


        Accordingly, we conclude that the Kentucky Supreme Court’s decision to deny Foley’s
ineffective-assistance claim was not contrary to or an unreasonable application of clearly established
federal law as determined by the Supreme Court.
                                       IV. Rebuttal Evidence
        Foley complains that the prosecution elicited substantive proof of his guilt during its rebuttal,
in violation of Kentucky’s rule that substantive proof of guilt should be presented during the
prosecution’s case in chief. Wager v. Commonwealth, 751 S.W.2d 28, 29 (Ky. 1988). He raised this
claim on direct appeal, and the Kentucky Supreme Court dismissed it summarily, noting “that there
was no error of sufficient gravity to warrant reversal of his conviction.” Foley, 942 S.W.2d at 890.
Foley faces significant hurdles in challenging this conclusion here. First, “a federal court may not
issue [a writ of habeas corpus] on the basis of a perceived error of state law.” Pulley v. Harris, 465
U.S. 37, 41 (1984). A trial judge’s decision concerning the admission of evidence is a state-law
matter generally not subject to habeas review. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Evidentiary issues are not a sufficient basis for granting habeas corpus relief unless the alleged
errors deny the petitioner a fair trial. Clemmons v. Sowders, 34 F.3d 352, 357-58 (6th Cir. 1994).
         We conclude that the admission of the rebuttal evidence did not deny Foley a fair trial. A
survey of the evidence makes this clear. During the prosecution’s case in chief, three witnesses
testified that they saw Foley shoot Rodney Vaughn: Ronnie Dugger, Bill Dugger, and Danny Joe
Bryant. Phoebe Watts testified that she began fleeing the house when she saw Foley draw his pistol
and heard shots as she left. Ronnie Dugger was the only witness who testified that he saw Foley
shoot Lynn Vaughn. Foley admitted carrying a pistol the night of the killings and admitted shooting
Rodney Vaughn. According to Foley, Rodney was armed and Foley shot him to protect himself and
Lynn Vaughn. Foley also testified that Ronnie Dugger shot Lynn Vaughn. In rebuttal, Bryant and
Dugger testified that, after shooting the Vaughns, Foley kicked Rodney Vaughn and said, “you son
of a bitch, you caused me to have to kill my partner [Lynn Vaughn].” Caldwell testified that Foley
tried both to get Caldwell to lie for him by testifying that he saw Danny Joe Bryant shoot Lynn
Vaughn and to convince Ronnie Dugger to go along with this statement.
         The only substantive evidence of Foley’s guilt that came in on rebuttal was Foley’s
admission in the presence of Bryant and Ronnie Dugger that he shot Lynn Vaughn. During the
prosecution’s case in chief, the jury had heard four witnesses testify that Foley was the only one at
the gathering who was armed. (Louise Bridges testified that Rodney Vaughn also had a gun.)
Ronnie Dugger had already testified that he saw Foley shoot Lynn. Moreover, Ronnie Dugger’s
pre-trial deposition, taken in May 1993, undercuts Foley’s claim that he was “sandbagged” by this
evidence. When asked at his deposition if Foley said anything about the shootings, Ronnie Dugger
testified that Foley said he hated to shoot his partner. Thus, Foley should not have been surprised
by Ronnie Dugger’s rebuttal testimony. Finally, Caldwell’s testimony that Foley tried to get him
to lie for Foley was merely cumulative of several witnesses’ testimony that Foley orchestrated the
disposal of the victims’ bodies. In sum, the rebuttal testimony did not render Foley’s trial unfair and
does not entitle Foley to habeas relief.
                                 V. Change of Venue/Continuance
         Foley argues that the trial court violated his rights to a fair trial, an impartial jury, and due
process of law when it denied his motion for a change of venue or a continuance. He alleges that
because of pretrial publicity, the overwhelming majority of prospective jurors knew about the case
before coming to court, over thirty percent had already formed an opinion that Foley was guilty and
at least one such person sat on the jury, and prospective jurors knew about the four other murder
charges pending against Foley. As an alternative to a change of venue, Foley requested a
continuance so the publicity could abate over time.
No. 04-5746           Foley v. Parker                                                           Page 7


        In support of his motion for a change of venue, Foley filed over 200 pages of exhibits and
affidavits, including articles from two statewide newspapers and four regional papers dated from
August 23, 1991, to August 13, 1993. The first articles reported Foley’s arrest for the Vaughn
murders. The Laurel County District Court entered an order on August 23, 1991, prohibiting law
enforcement and court personnel from disclosing information about the case. Other articles
published in the fall of 1991 provided additional information about Foley, including his status as an
FBI informant and the fact that this status kept him from being jailed on charges pending in Ohio
at the time of the Vaughn killings. Articles stated that Foley was linked to earlier assaults and
deaths.
        In October 1991, authorities recovered four bodies from property in the Bald Rock
community of Laurel County, Kentucky. The bodies were covered in lime and placed in a septic
tank, and the tank was capped with cement. Several newspaper stories linked Foley to these
murders. In different articles, the Lexington Herald-Leader gave witnesses’ accounts of both the
Vaughn killings and the septic tank murders and asserted that Foley was linked to a total of nine
killings. Additional stories followed in November 1991. The Laurel County Circuit Court extended
the earlier gag order to the septic tank case by order entered November 8, 1991.
         Press coverage subsided until the fall of 1992. Several papers carried a story about a search
for a fifth victim at the Bald Rock site and the discovery of two leg bones evidently planted as a
hoax. The articles mentioned Foley and the Vaughn case. In January 1993, newspapers reported
that a date was set for trial in the Vaughn case. That same month, reporters covered a civil lawsuit
filed by members of the Vaughn family against the FBI. That case also appeared in the news in May
1993. In late May 1993, the London Sentinel-Echo reported on the deposition testimony of several
witnesses in the two cases against Foley. The same paper published excerpts from the depositions
on August 13, 1993. The trial court had ordered that the depositions remain under seal.
        In response to Foley’s motion, the Commonwealth argued that the newspapers had low
circulation in Laurel County and that the articles mostly dated from 1991. The prosecution
submitted circulation figures for the papers and estimated that less than half of the potential jury
pool was exposed to the stories. (Foley was tried for the septic tank murders in April 1994. The
trial court granted a change of venue, and the trial was held in Madison County, Kentucky. Foley
v. Commonwealth, 953 S.W.2d 924, 928 (Ky. 1997).)
State Court Decision
         The Kentucky Supreme Court affirmed the trial court’s decision to deny a change of venue
by a four-to-three vote. The court noted that Foley did not request a change of venue until the day
before trial was scheduled to begin, that most of the newspaper articles he cited were from 1991, two
years before the trial, and concluded that the articles were not so numerous or inflammatory as to
render Foley’s trial unfair. Foley, 942 S.W.2d at 880-81. The Kentucky Supreme Court found that
most jurors heard little more than what was in the indictment and concluded that the jurors who
served had not formed an opinion regarding Foley’s guilt or innocence. The court cited Mu’Min v.
Virginia, 500 U.S. 415, 427 (1991), for the proposition that the trial judge has a great deal of
discretion when assessing pretrial publicity and juror contamination. Foley, 942 S.W.2d at 884.
Three justices in dissent found that the trial court erred when it failed to grant a change of venue and
that the ten challenged jurors were biased against Foley. Id. at 890-92 (Stumbo, J., dissenting). The
dissent emphasized the number of prospective and actual jurors who knew about Foley and the
crimes charged, their responses in voir dire, and what it termed the comprehensive and repetitive
newspaper coverage. Id. at 890-91.
No. 04-5746           Foley v. Parker                                                         Page 8


District Court Decision
       The district court held that the Kentucky Supreme Court’s decision was not unreasonable
given the jurors’ attestation that they could remain impartial, the fact that publicity had abated by
the time of trial, and that the jurors had little knowledge of the case and testified that any outside
knowledge would not affect their deliberations. The district court acknowledged that fifteen to
twenty minutes was a short amount of time to reach a verdict, but found that there was
overwhelming evidence of guilt. The court reiterated that all of the jurors selected for the trial
affirmed that they could be fair and impartial and concluded that the Kentucky Supreme Court’s
analysis was neither contrary to nor an unreasonable application of Supreme Court precedent.
Analysis
        We conclude that the district court properly denied this claim. If pretrial publicity
jeopardizes a defendant’s right to a fair trial by an impartial jury, the trial court should grant the
defendant a change in venue. Irvin v. Dowd, 366 U.S. 717, 722-24 (1961); Ritchie v. Rogers, 313
F.3d 948, 956 (6th Cir. 2002). Prejudice resulting from pretrial publicity can be presumptive or
actual. Nevers v. Killinger, 169 F.3d 352, 362 (6th Cir. 1999), abrogated on other grounds, Harris
v. Stovall, 212 F.3d 940, 942-43 (6th Cir. 2000). Presumptive prejudice from pretrial publicity
occurs where an inflammatory, circus-like atmosphere pervades both the courthouse and the
surrounding community. Ritchie, 313 F.3d at 952-53; Gall v. Parker, 231 F.3d 265, 309 (6th Cir.
2000). Prejudice from pretrial publicity is rarely presumed. DeLisle v. Rivers, 161 F.3d 370, 382
(6th Cir. 1998).
        Where pretrial publicity cannot be presumed prejudicial, the trial court must then determine
whether it rises to the level of actual prejudice. Ritchie, 313 F.3d at 962. The primary tool for
discerning actual prejudice is a searching voir dire of prospective jurors. Id. The court must review
the media coverage and the substance of the jurors’ statements at voir dire to determine whether a
community-wide sentiment exists against the defendant. Nevers, 169 F.3d at 366. Negative media
coverage by itself is insufficient to establish actual prejudice, and the existence of a juror’s
preconceived notion as to the guilt or innocence of the defendant, without more, is not sufficient to
rebut the presumption of impartiality. Id. at 366-67. “[M]ere prior knowledge of the existence of
the case, or familiarity with the issues involved, or even some preexisting opinion as to the merits,
does not in and of itself raise a presumption of jury taint . . . .” DeLisle, 161 F.3d at 382. The
prospective juror must be able to lay aside his or her impressions or opinions and render a verdict
based upon the evidence presented in court. Irvin, 366 U.S. at 723; Ritchie, 313 F.3d at 962. The
relevant question is “did [the] juror swear that he could set aside any opinion he might hold and
decide the case on the evidence, and should the juror’s protestation of impartiality have been
believed.” Patton v. Yount, 467 U.S. 1025, 1036 (1984).
         The state court decision concerning venue was neither contrary to nor an unreasonable
application of federal law as determined by the United States Supreme Court. First, it is clear that
the pretrial publicity in this case does not merit a presumption of prejudice. Although there was
significant media attention when Foley was arrested, when the bodies were discovered in the septic
tank, and when there were significant developments in the case, this was not one of the rare cases
tried in a circus-like atmosphere. There is nothing in the record to suggest any contact between the
media and the jury during the trial. See Ritchie, 313 F.3d at 952-53.
        Second, our review of the voir dire does not support the conclusion that pretrial publicity
resulted in actual prejudice. See id. at 962. There was publicity surrounding both the Vaughn
murders and the discovery of the four bodies in the septic tank, and many articles linked Foley to
these and earlier crimes. By the time of the trial, however, nearly two years had elapsed since most
of the articles appeared. The potential jurors’ responses in voir dire reflected this passage of time.
No. 04-5746           Foley v. Parker                                                          Page 9


Most knew that Foley was accused of killing the Vaughns, a smaller number knew that he was
suspected of killing the four people found in the septic tank, and a still smaller number knew details
about Foley and both crimes from news accounts.
        To quantify the voir dire responses, six of the ninety-eight prospective jurors had heard
nothing of the case; eighteen were excused because they had the opinion that Foley was guilty;
seventeen were excused because, given what they had read or heard about the case, they could not
presume Foley innocent; six were excused because of personal knowledge of the case; nine were
excused for bias due to connections with law enforcement or the victims; seven were excused for
opposing the death penalty; one was excused because he would not consider a penalty other than
death if Foley were convicted; and five were excused for miscellaneous reasons. Foley, 942 S.W.2d
at 881. Of the twelve jurors who actually rendered the verdict, two had no prior knowledge of the
case, six were aware that Foley was implicated in the Vaughn killings and the septic tank case, and
the remaining four knew about the Vaughn killings but not the septic tank case.
        The Kentucky Supreme Court did not address directly whether the jurors who were not
excused swore that they could set aside any opinion they might hold and decide the case on the
evidence. The court analyzed the issue under its own precedent and described the voir dire
responses of the ten challenged jurors. See id. at 882-84 & nn.2-11. Foley’s brief has conceded the
accuracy of the Kentucky Supreme Court’s descriptions of the responses of those jurors. Juror A
convinced the trial court that she would do her best to base her verdict solely on the evidence
presented in court, Juror B stated that the massive publicity would not affect his rendering a fair and
impartial verdict, Juror C had no opinion as to Foley’s guilt, Juror D (the alternate) said that he
would enter jury deliberations feeling that Foley was not guilty and that the prosecution had the
burden of proof, Juror E said he had no opinion of guilt without hearing all the facts, Juror F said
he could be an impartial juror and understood the burden of proof, Juror G said she was not sure if
she could remove all information from her mind during the trial and deliberations, but the trial court
was convinced that she would follow instructions and decide the case only on the evidence
presented, Juror H said she had no ill feelings toward Foley and could put aside all news reports,
Juror I had no problem presuming Foley’s innocence and putting the publicity out of her mind, and
Juror J (the foreman) said that the media had not swayed his opinion and he had formed no
impressions of Foley. See id.
        Thus, all of the ten challenged jurors expressed the view, variously phrased, that they could
set aside what they had heard about the case and decide it based upon the evidence presented in
court. See Patton, 467 U.S. at 1036. The remaining question is, in view of the pretrial publicity,
should the jurors’ statements of impartiality be believed. “In a community where most veniremen
will admit to a disqualifying prejudice, the reliability of the others’ protestations may be drawn into
question; for it is then more probable that they are part of a community deeply hostile to the accused,
and more likely that they may unwittingly have been influenced by it.” Murphy v. Florida, 421 U.S.
794, 803 (1975). In this case, forty-four of the ninety-eight prospective jurors were disqualified
because of opinion of guilt, knowledge of the case, or bias in favor of the prosecution. Foley, 942
S.W.2d at 881. In Murphy, the Supreme Court determined that the fact that twenty of the seventy-
eight persons questioned were excused because they indicated an opinion as to petitioner’s guilt did
not impeach the impartiality of the jurors who did not express an opinion as to guilt. Murphy, 421
U.S. at 803; see also Mu’Min, 500 U.S. at 417 (although eight of the twelve jurors empaneled were
aware of news reports about the defendant, all of the jurors empaneled stated that they could be
impartial). Accordingly, we hold that the Kentucky Supreme Court’s decision that pretrial publicity
did not require a change of venue because of actual prejudice was neither contrary to nor an
unreasonable application of federal law as determined by the United States Supreme Court.
      The district court also properly denied Foley’s claim that the trial court should have granted
him a continuance to let publicity die down. Denial of a continuance rises to the level of a
No. 04-5746           Foley v. Parker                                                          Page 10


constitutional violation only if it is so arbitrary as to violate due process. Morris v. Slappy, 461
U.S. 1, 11-12 (1983). The petitioner must also demonstrate that the denial of a continuance actually
prejudiced his or her defense. Burton v. Renico, 391 F.3d 764, 772 (6th Cir. 2004); Powell, 332 F.3d
at 396. The Kentucky Supreme Court found that the trial court was justified in denying Foley’s
motion for a continuance because he filed it on the eve of trial. Thus, the denial was not arbitrary.
Moreover, Foley cannot show prejudice because, as stated above, he did not demonstrate that it was
impossible to seat an impartial jury in Laurel County in the fall of 1993.
                   VI. Trial Court’s Refusal to Strike Ten Jurors for Cause
        Foley argues that the trial court erred by failing to strike ten jurors he challenged for cause.
He maintains that the court should not have accepted the jurors’ statements that they could be
impartial and judge the case only on the facts presented. Foley points to the speed of the jury’s
verdict as compelling the conclusion that the jurors had prior knowledge of the case and, in some
instances, knowledge of the accusations against Foley in the quadruple-homicide case.
State Court Decision
        The Kentucky Supreme Court, in a four-to-three decision, affirmed the trial court’s decision
regarding the ten challenged jurors. The court reviewed each juror’s responses in voir dire to
examine their pretrial knowledge of other crimes connected to Foley, their ability to put such
knowledge out of their minds, and their ability to presume Foley innocent. As summarized above,
the Kentucky Supreme Court determined that each of the challenged jurors stated that he could set
aside what he knew about the case and decide it only on the evidence presented at trial. Foley, 942
S.W.2d at 882-84 & nn.2-11. The court concluded that the jurors’ recollections diminished with
time, that most remembered few details, that none who served indicated that he had formed an
opinion regarding guilt or that the information affected his ability to render a verdict based on the
evidence presented, and that the jurors who might have been influenced by the pretrial publicity
were excused by the trial court. The court found that most of the press coverage merely mentioned
the facts of the case, that most of the articles were in papers that had little distribution in Laurel
County, and that while most jurors remembered hearing of the case they could not recall details.
Id. at 882-85.
        Justice Stumbo, writing for the dissent, noted that each of the ten challenged jurors knew
who Foley was and knew of the crime charged, that six of the ten knew of the other murders with
which Foley was charged, and that extensive rehabilitation was necessary in order to qualify the
jurors for service on the jury. Id. at 891 (Stumbo, J., dissenting). In addition, the dissent identified
responses by six of the jurors that suggested they believed, or knew people who believed, that Foley
was guilty. Id. Finally, the dissent asserted that the jurors’ knowledge of the media coverage and
facts surrounding this case and the other charges against Foley meant that it was reasonable to infer
actual bias or prejudice. Id. at 891-92.
District Court Decision
        The magistrate judge observed that the trial court conducted a lengthy voir dire over three
days and that all ten challenged jurors questioned about whether they could be impartial and
consider the full range of penalties. The magistrate judge reviewed the voir dire of each of the ten
jurors and noted that they had only very limited knowledge of the events reported in the media, that
this information was not probative of guilt, and that they did not learn the information from anyone
associated with the case. In addition, the magistrate judge found that the jurors’ responses did not
reflect any preconceived opinions of guilt or hostility toward Foley. Finally, the magistrate judge
concluded that Foley had not rebutted the state courts’ factual findings and that the Kentucky
No. 04-5746            Foley v. Parker                                                           Page 11


Supreme Court’s decision was neither contrary to nor an unreasonable application of Supreme Court
precedent.
        The district court overruled Foley’s objections to the magistrate judge’s report and
recommendation. The court distinguished the case relied upon by Foley, Wolfe v. Brigano, 232 F.3d
499 (6th Cir. 2000). In Wolfe, two jurors knew the victim’s parents well and did not state
unequivocally that they could set aside their relationships with the victim’s parents and decide the
case fairly. Id. at 502. In this case, the district court found no evidence of a significant risk that any
of the jurors in Foley’s case might be partial despite attestations to the contrary.
Analysis
         As explained above in our discussion about pretrial publicity, prior knowledge of the case
or even an opinion on the merits is not enough to disqualify a juror who swears that he can set aside
any opinion and decide the case upon the evidence presented at trial, and the juror’s protestation of
impartiality is to be believed. See Patton, 467 U.S. at 1035; Irvin, 366 U.S. at 723. In this case, the
trial court conducted a thorough voir dire and was satisfied from the responses of the ten challenged
jurors that they could set aside what they had heard about the case and decide it based upon the
evidence presented in court. See Patton, 467 U.S. at 1036. Foley conceded the accuracy of the
Kentucky Supreme Court’s summary of the jurors’ responses and has not shown that the state
court’s decision regarding those jurors was contrary to or an unreasonable application of federal law
as determined by the Supreme Court.
                VII. The Commonwealth’s Use of Aaron Caldwell’s Testimony
        Foley argues that the Commonwealth attempted to bolster its case by using perjurious
testimony from Caldwell that Foley tried to get Caldwell to lie for him. During the prosecution’s
rebuttal, Caldwell testified that Foley wanted Caldwell to say that he saw Danny Joe Bryant shoot
Lynn Vaughn and wanted Caldwell to convince Ronnie Dugger to go along with this statement.
        In a June 2001 motion for a new trial, Foley alleged that Caldwell had perjured himself at
trial. He attached an affidavit by Caldwell, also known as Aaron Rivers, dated March 17, 2000, in
which Caldwell swore that Foley had not asked him to lie, that Ronnie Dugger told him Rodney
Vaughn killed Lynn Vaughn, that Caldwell said what the Kentucky State Police wanted to hear, and
that the prosecutor coached him on his testimony. While Foley’s motion for a new trial pended,
Caldwell executed another affidavit. In this affidavit, dated June 8, 2001, Caldwell swore that
Ronnie Dugger’s sister paid him $8000 to corroborate Dugger’s testimony at trial, that the
prosecutor did not coach him about what to say at trial, that he completed the earlier affidavit and
reported falsely that Foley coerced him to do so in order to be transferred from a maximum to a
minimum security prison, and that he had lied so many times in this case to benefit himself it was
hard to keep up.
        The Commonwealth objected to Foley’s motion and attached an October 2001 affidavit from
Caldwell, an April 2000 affidavit from Caldwell, and letters Caldwell wrote to Commonwealth
Attorney Tom Handy and Kentucky Department of Public Advocacy Investigator Cathy Bowman.
The letters to Handy stated that Caldwell feared Foley would kill him or have him killed in prison.
An undated letter to Bowman wondered why the prosecution allowed him to take the stand against
anyone, especially in a murder case. The April 2000 affidavit recited that Caldwell signed the
March 2000 affidavit in response to a threat on his life by Foley. Caldwell’s October 2001 affidavit
disavowed the letters and vouched for the June 2001 affidavit.
No. 04-5746           Foley v. Parker                                                           Page 12


State Court Decision
        The trial court found that Foley had failed to show that Caldwell’s trial testimony was false,
that the prosecutor knew it was false, or that the absence of Caldwell’s testimony would have
changed the jury’s verdict. The Kentucky Supreme Court agreed with each conclusion. Foley, 2003
WL 21993756, at *2-3. The court noted that Caldwell had signed conflicting affidavits several years
after the trial and while serving time in the same prison system as Foley, leaving no reason to believe
that they were any more reliable than his initial testimony. As to the prosecution’s knowledge of
Caldwell’s alleged perjury, the court found that Foley could not show that the prosecutor could have
known that Caldwell would recant his trial testimony six or seven years later. Finally, the court held
that there was not a reasonable likelihood that Caldwell’s testimony affected the judgment of the
jury because there was overwhelming testimony as to Foley’s guilt and his attempts to orchestrate
a cover-up.
District Court Decision
         The magistrate judge concluded that the Kentucky Supreme Court reasonably applied Giglio
v. United States, 405 U.S. 150 (1972), to the facts of the case and that the state court’s decision was
neither contrary to nor an unreasonable application of clearly established Supreme Court precedent.
The district court detailed the state courts’ findings and conclusions and agreed with the magistrate
judge. The district court found the Kentucky Supreme Court’s conclusions on the relevant factual
issues entitled to deference and a presumption of correctness under 28 U.S.C. § 2254 and concluded
that the state court’s opinion was not contrary to any Supreme Court precedent. The court reiterated
that the prosecution was not aware that Caldwell committed perjury at trial and that Foley could not
demonstrate that, absent Caldwell’s testimony, the outcome of the trial might have been different
because there was overwhelming evidence of Foley’s guilt and his attempts to intimidate witnesses
and shift blame.
Analysis
         We conclude that the district court properly denied this claim. The knowing use of perjured
testimony, including the failure to correct false testimony, constitutes a denial of due process if there
is any reasonable likelihood that the false testimony could have affected the judgment of the jury.
Napue v. Illinois, 360 U.S. 264, 272 (1959). This includes the use of testimony, whether elicited or
left uncorrected, that the prosecutor knows or should know is false. Giglio, 405 U.S. at 153-54. In
this case, Foley has not shown that the prosecution knew or should have known that Caldwell was
committing perjury when he testified at Foley’s trial. None of Caldwell’s post-judgment statements
that support Foley date to the time of the trial. Moreover, the accumulation of contradictory
statements Caldwell has made over the years provides no basis to conclude that Caldwell lied at
trial, as opposed to later. Finally, even if Caldwell’s trial testimony were false, Foley did not
establish a reasonable likelihood that this testimony could have affected the jury’s judgment.
Caldwell testified that Foley wanted him to implicate Danny Joe Bryant in Lynn Vaughn’s death.
Notably, this was different from what Foley testified at trial, when he blamed Lynn’s death on
Ronnie Dugger. In any event, several witnesses testified that Foley was the only armed person at
the gathering, that Foley shot Rodney Vaughn, and that only Foley and Ronnie Dugger were in the
house when Lynn Vaughn was shot. Ronnie Dugger testified that Foley shot Lynn, and several
witnesses testified that Foley recruited them to help cover up the crimes. In short, Caldwell’s trial
testimony was not a crucial link in the case against Foley. Accordingly, the Kentucky Supreme
Court’s decision to reject Foley’s Giglio claim was neither contrary to nor an unreasonable
application of federal law as determined by the United States Supreme Court.
No. 04-5746            Foley v. Parker                                                     Page 13


                                         VIII. Conclusion
          We AFFIRM the district court’s dismissal of each of petitioner’s claims for habeas corpus
relief.
No. 04-5746            Foley v. Parker                                                           Page 14


                     _______________________________________________
                      CONCURRING IN PART, DISSENTING IN PART
                     _______________________________________________
        BOYCE F. MARTIN, JR., Circuit Judge, concurring in part and dissenting in part.
                                                   A.
         My initial thoughts concern Part III of the majority’s opinion. The Commonwealth argues,
and the majority seems to agree, that the Supreme Court’s decision in Wiggins v. Smith, 539 U.S.
510 (2003), is entirely inapplicable to Foley’s habeas petition, because it was published well after
the Kentucky Supreme Court ruled on his Strickland claim of ineffective assistance of counsel. See
Maj. Op. at 3-4 (“[O]ur review will ignore interpretations of Strickland by the Supreme Court in
cases such as . . . Wiggins . . . .”); D. Ct. Op. at 7 (holding that Wiggins “does not impact the analysis
in [Foley’s] case”). Wiggins must be disregarded, the majority contends, because the Supreme Court
has instructed lower federal courts sitting in habeas that “clearly established Federal law” under
28 U.S.C. § 2254(d)(1) is “the governing legal principle or principles set forth by the Supreme Court
at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)
(emphasis added).
        Because Wiggins only clarified Strickland, however, it in no way alters the “governing legal
principles” set forth in that case, principles with which we are quite familiar. Thus there is no reason
why we should not draw from Wiggins, as well as Strickland, in analyzing the instant case.
Precisely this point was made by a recent panel of this circuit in Slaughter v. Parker, 450 F.3d 224
(6th Cir. 2006):
        A careful reading of Wiggins . . . reveals that the [Supreme] Court looked to
        Strickland while analyzing whether trial counsel performed an adequate investigation
        in preparing for the penalty phase of Wiggins’s trial, which occurred in October of
        1989. See Hamblin [v. Mitchell], 354 F.3d at 487 (“[t]he Court in Wiggins clearly
        holds . . . that it is not making ‘new law’ on the ineffective assistance of counsel
        either in Wiggins or in the earlier case on which it relied for its standards, Williams
        v. Taylor [ ]”). Hence, we may look to Wiggins to decide whether the Supreme Court
        of Kentucky unreasonably applied Supreme Court precedent.
450 F.3d at 233 n.2. The denial of Slaughter’s ineffective assistance claims was affirmed by the
Kentucky Supreme Court in April 1999, id. at 231, whereas the denial of Foley’s ineffective
assistance claims was affirmed by the Kentucky Supreme Court after Slaughter’s, in March 2000.
Maj. Op. at 2 (citing Foley v. Commonwealth, 17 S.W.3d 878 (Ky. 2000)). In light of Slaughter,
therefore, it seems to me that we may properly look to Wiggins for guidance in this case, even under
deferential AEDPA § 2254(d)(1) review.
       The Kentucky Supreme Court found that because there was no evidence of Foley having a
mental defect, and because much of the testimony presented at the Rule 11.42 hearing pointed not
so much to mitigating factors but to Foley’s propensity for violence, “[t]he decision of counsel not
to conduct additional investigation into defendant’s background in search of mitigating
circumstances can be supported by reasonable professional judgment.” Foley, 17 S.W.3d at 885.
The district court, in denying Foley’s federal habeas claims, buttressed the Kentucky court’s
decision by pointing out that counsel “actively engaged” Foley and his family regarding mitigation
evidence, only to learn that it was “clear” Foley did not want his family to testify. D. Ct. Op. at 11.
No. 04-5746           Foley v. Parker                                                          Page 15


        This description blatantly overstates the level of investigation that counsel actually
conducted. When asked during the Rule 11.42 hearing whether Foley had been reluctant to put on
mitigation evidence, counsel responded: “Yeah, I think what he said was something to the effect that
he didn’t want to put his family through all that. That’s my best recollection of it.” Especially in
light of the fact that Foley’s mother wanted to testify at his trial and provide some potentially
mitigating evidence, counsel’s own testimony makes it far from “clear” that he was “actively
engaged” in discussing the pros and cons of mitigation evidence with Foley, or that he pressed Foley
further when Foley expressed some reluctance to have family members testify. I therefore cannot
agree that the Kentucky Supreme Court reasonably applied the tenets of Strickland in concluding
that Foley’s counsel’s performance was not deficient with respect to investigation of mitigation
evidence. See Wiggins, 539 U.S. at 533 (“[S]trategic choices made after less than complete
investigation are reasonable only to the extent that reasonable professional judgments support the
limitations on investigation. A decision not to investigate thus must be directly assessed for
reasonableness in all the circumstances.”) (citations and internal quotation marks omitted) (quoting
Strickland, 466 U.S. at 689).
         I concur in Part III, however, because I believe Foley’s mitigation claim falters on
Strickland’s second prong: prejudice. What distinguishes Foley’s mitigation claim from others that
have been much stronger is that even when given the opportunity to investigate thoroughly in
preparation for the Rule 11.42 hearing, Foley’s state appellate counsel was unable to obtain any
decent mitigating evidence. For example, if there really were something to Foley’s argument that
the testimony of his mother would have shown that he had suffered life-altering head injuries, that
he had mental problems, and that his violent grandfather had caused him to know nothing but
violence, one would expect there to have been at least some independent corroboration of these
inferences, from a doctor, from a psychologist, indeed from anyone that appellate counsel could
have drummed up. Cf. Wiggins, 539 U.S. at 523-28 (presenting on collateral review evidence of
severe abuse as a child, sexual torment and rape in foster care, and diminished mental capacities);
Williams v. Taylor, 529 U.S. 362, 395 (2000) (presenting on collateral review extensive records
graphically describing petitioner’s “nightmarish” childhood); Williams v. Anderson, 460 F.3d 789,
804-05 (6th Cir. 2006) (presenting on collateral review evidence that petitioner’s mother was an
alcoholic who neglected and beat him, that petitioner was dependent on cocaine at the time of the
murder, and that petitioner suffers from a severe personality disorder, as documented by a clinical
psychologist). I therefore cannot conclude that the Kentucky Supreme Court’s ultimate resolution
of Foley’s ineffective assistance claim was objectively unreasonable in light of Strickland.
                                                  B.
        My above analysis of the Strickland performance prong is nothing new inasmuch as it
follows from a prior panel’s analysis in Slaughter. I concede, however, that this Court has been
anything but consistent in its explication and application of 28 U.S.C. § 2254(d)(1) in habeas cases,
in particular with respect to the use of Supreme Court (or circuit) precedent that post-dates a given
state court ruling on the merits. Compare Slaughter, 450 F.3d at 233 n.2 (discussed above) with
Keith v. Mitchell, 455 F.3d 662, 670 (6th Cir. 2006) (filed less than a month after Slaughter, yet
concluding that in an appeal “governed by AEDPA’s standard of review, only Supreme Court cases
already issued at the time of the relevant state court decision can offer guidance regarding whether
counsel’s performance was ineffective”). Such uncertainty counsels in favor of en banc review of
the issue, lest we unwittingly amass a grab bag of different points of departure under § 2254(d)(1).
For judges to disagree about how a given precedent may apply to a petitioner’s claim based on its
factual similarity or dissimilarity is one thing; this is of course the very core of judicial reasoning.
Yet for judges to disagree about which precedents may be used in the first instance, based not on
their facts but on the exact date they were filed, is quite another.
No. 04-5746            Foley v. Parker                                                            Page 16


         I for one continue to believe that this Court’s inflexible reading of § 2254(d)(1)’s
unreasonable application prong “offends the judicial power under Article III.” Davis v. Straub, 445
F.3d 908, 910 (6th Cir. 2006) (Martin, J., dissenting from denial of rehearing en banc). Some of my
colleagues have similarly pointed out that to define Supreme Court precedent in its narrowest sense
renders § 2254(d)(1) unconstitutional “by preventing our Court from giving our independent
judgment on the legal effect of the evidence before us and by leaving us ‘no adjudicatory function
to perform.’” Davis v. Straub, 430 F.3d 281, 297 (6th Cir. 2005) (Merritt, J., dissenting) (quoting
United States v. Klein, 80 U.S. 128, 146-47 (1871)). Today’s majority cannot be said to have
performed no adjudicatory function, for it of course has adjudicated Foley’s ineffective assistance
claim, and done so in convincing fashion, in light of Strickland. Yet by freezing in time the
“governing legal principles”—i.e., the “clearly established Federal law”—before the Kentucky
Supreme Court when it reviewed Foley’s claims, and by robotically refusing to take guidance from
any cases after this date (such as Wiggins), the majority greatly constricts this very function. There
is a difference between cases that present new law and those that present nuanced law: our ability
to make use of the former on collateral review may well be properly restricted by Teague v. Lane,
489 U.S. 288 (1989), whereas our ability to make use of the latter seems unconstitutionally restricted
by an overly narrow reading of § 2254(d)(1).
       The circuit courts, as well as the Supreme Court, seem to have put the cart before the horse
by “tacitly assuming” the constitutionality of AEDPA in general and § 2254(d)(1) in particular.
Irons v. Carey, — F.3d —, 2007 WL 656345, at *8 (9th Cir. March 6, 2007) (Noonan, J.,
concurring). And yet, as the Ninth Circuit has recently pointed out, it is this more fundamental
question that deserves our attention, hopefully sooner rather than later:
        In our system of law where precedent prevails and is developed, AEDPA denies the
        judge the use of circuit precedent, denies development of Supreme Court and circuit
        precedent, denies the deference due the penumbra and emanations of precedent, and
        even denies the courts the power to follow the law as now determined by the
        Supreme Court—the precedent to be applied must have been in existence at the
        earlier moment when a state decision occurred. A more blinkered concept of law
        cannot be imagined—law, particularly constitutional law—is treated as what once
        was the law. The development of doctrine is despised. That despisal is a direct
        legislative interference in the independence of the judiciary.
Id. at *7; see also id. at *11 (Reinhardt, J., concurring) (“Having granted the courts the authority to
review state convictions under our habeas powers, it seems to me inconsistent with our fundamental
obligations as judges to require us, except in unusual or exceptional circumstances, to rule for the
state regardless of whether it violated the Constitution. Such a mandate appears to me to tell us how
to decide a case.”). Should we continue to read § 2254(d)(1) so narrowly, so as to allow only
snapshots of “what once was the law,” or should we consider this provision more broadly, so as to
allow us our rightful room to interpret the law within Article III? Much like some members of the
Ninth Circuit have done, I would encourage my own colleagues to at least consider tackling this
constitutional question.
                                                    C.
         I now turn to Parts V and VI of the majority opinion, with which I cannot similarly concur.
In my mind, the analysis of Foley’s motion for change of venue (discussed in Part V) and his motion
to strike ten jurors for cause (discussed in Part VI ) are fully interrelated, and thus I will discuss them
together.
      The majority is correct that Irvin v. Dowd, 366 U.S. 717 (1961), supplies the fulcrum by
which we must judge the reasonability of the Kentucky Supreme Court’s decision. In Irvin, the
No. 04-5746           Foley v. Parker                                                           Page 17


Supreme Court reversed a state-issued death sentence on grounds that prejudicial pretrial publicity
should have mandated a change of venue, not just to a county adjoining the county in which the
murders had occurred, but to a county geographically far enough removed to be untainted by the
publicity. The Court noted that:
       One of the rightful boasts of Western civilization is that the State has the burden of
       establishing guilt solely on the basis of evidence produced in court and under
       circumstances assuring an accused all the safeguards of a fair procedure. These
       rudimentary conditions for determining guilt are inevitably wanting if the jury which
       is to sit in judgment on a fellow human being comes to its task with its mind
       ineradicably poisoned against him.
366 U.S. at 729 (Frankfurter, J., concurring). To this broad premise, however, was added a
qualification reflecting the reality of criminal trials in the modern era:
       It is not required, however, that the jurors be totally ignorant of the facts and issues
       involved. In these days of swift, widespread and diverse methods of communication,
       an important case can be expected to arouse the interest of the public in the vicinity,
       and scarcely any of those best qualified to serve as jurors will not have formed some
       impression or opinion as to the merits of the case. This is particularly true in
       criminal cases. To hold that the mere existence of any preconceived notion as to the
       guilt or innocence of an accused, without more, is sufficient to rebut the presumption
       of a prospective juror’s impartiality would be to establish an impossible standard.
       It is sufficient if the juror can lay aside his impression or opinion and render a verdict
       based on the evidence presented in court.
Id. at 722-23; see also Patton v. Yount, 467 U.S. 1025, 1036 (1984) (noting that the critical question
is: “did a juror swear that he could set aside any opinion he might hold and decide the case on the
evidence, and should the juror’s protestation of impartiality have been believed[?]”). Irvin forces
courts to engage in a balancing act, to be sure, but in Foley’s case I cannot agree that the state
courts’ balancing was reasonable.
         The state-court review of Foley’s change of venue claim was highly contested, with three
members of the Kentucky high court writing in dissent against a four-member majority. See Foley,
942 S.W.2d at 890-91. For example, the dissenters disagreed with the majority’s gloss on the pre-
trial media coverage, pointing out that “[n]ewspaper coverage between August of 1991 and the trial
date was comprehensive and repetitive. The details of the murders were repeated over and over.”
Id. at 890. They also noted that Foley was the subject of several editorials in the local and regional
newspapers, editorials which even the majority had conceded were inflammatory. Furthermore, the
news at the time was flush with reports of other crimes that Foley had allegedly committed.
Newspaper articles indicated that, but for deals with the government, Foley would have been serving
jail time for other crimes at the time of the Vaughn murders—the implication being that had the
government not brokered a plea deal with such an inveterate criminal, the Vaughn murders could
have been avoided. Most damning for Foley, however, was the concomitant news reporting of the
four other murders with which he was charged and for which state prosecutors were seeking the
death penalty. These murders were even more violent and seemingly random than those of the
Vaughn brothers, the bodies of the four victims having been hidden for several years in a septic tank
and only discovered in 1991, the same year the bodies of the Vaughn brothers were found in Sinking
Creek. In fact, Foley’s motion for a change of venue as to this quadruple-murder trial was granted,
and the trial was eventually held in Madison County in 1994, the year following his double-murder
Laurel County trial.
No. 04-5746           Foley v. Parker                                                          Page 18


        In denying Foley’s change of venue claim on federal habeas, the district court likened his
situation to that of the petitioner in DeLisle v. Rivers, 161 F.3d 370 (6th Cir. 1998) (en banc), in
which a majority of this Court rejected petitioner DeLisle’s Irvin-based change of venue arguments.
The DeLisle majority noted that because fewer than 15% of the jury venire had any fixed opinion
about DeLisle’s guilt, in contrast to the 90% in Irvin, that was too little for DeLisle to have properly
received a change of venue on grounds of “presumed prejudice.” Id. at 383. I respectfully must
disagree with the district court’s reliance on DeLisle.
       First of all, Foley has a stronger claim of presumed prejudice than did DeLisle, because the
Kentucky Supreme Court makes clear that at least 33% of the jury venire “either believed [Foley]
was guilty or did not presume him to be innocent.” To be sure, this is not the 90% in Irvin, but to
have fully one-third of the jury venire so infected is by no means insubstantial. Cf. Murphy v.
Florida, 421 U.S. 794, 803 (1975).
        Secondly, and more importantly, Foley has a much stronger “actual prejudice” claim than
did DeLisle, because Foley can actually point to the voir dire and show that ten jurors whom he
asked the trial judge to strike for cause were retained. This fact is in stark contrast to that which we
deemed critical in DeLisle: “[W]hat is of greatest importance [is that] none of those actually seated
on DeLisle’s jury was challenged for cause, and none expressed a fixed opinion about DeLisle’s
guilt.” 161 F.3d at 383 (emphasis in original); see also Nevers v. Killinger, 169 F.3d 352, 367 (6th
Cir. 1999) (rejecting petitioner’s claim at least in part on grounds that only two jurors eventually
seated were challenged for cause). Thus the record of voir dire in Foley’s case becomes critical.
See Montgomery v. Commonwealth, 819 S.W.2d 713, 716 (Ky. 1991) (“One of the substantial
considerations in affirming the trial court on a change of venue issue is the trial judge’s decision to
permit a broad voir dire to identify prospective jurors so affected by pretrial publicity that they
should be excused for cause.”); Nevers, 169 F.3d at 363 (concluding that “pretrial publicity that
would inherently prejudice the jury pool can be discerned only by reviewing both the extent and
nature of the publicity and the responses of the prospective jurors in voir dire”) (emphasis in
original); Murphy, 421 U.S. at 803 (concluding that some bias on the part of the jury venire does not
“impeach the indifference” of any individual jurors who “displayed no animus on their own”).
        Foley contends now, as he did on direct review before the Kentucky Supreme Court, that voir
dire revealed implied bias in ten prospective jurors, all but one of whom were ultimately empaneled.
The majority of the Kentucky high court compared Foley’s case to that of Skaggs v. Commonwealth,
694 S.W.2d 672 (Ky. 1985), noting that the pretrial publicity in Skaggs was far more inflammatory
than here, and still it was found to have dissipated over time and thus not to have been of great
influence on prospective jurors. Foley, 942 S.W.2d at 884. The Kentucky Supreme Court majority
indicated that it was being guided by the United States Supreme Court’s decision in Mu’Min v.
Virginia, 500 U.S. 415 (1991), in which the Court stated:
       [O]ur own cases have stressed the wide discretion granted to the trial court in
       conducting voir dire in the area of pretrial publicity and in other areas of inquiry that
       might tend to show juror bias. Particularly with respect to pretrial publicity, we think
       this primary reliance on the judgment of the trial court makes good sense. The judge
       of that court sits in the locale where the publicity is said to have had its effect and
       brings to his evaluation of any such claim his own perception of the depth and extent
       of news stories that might influence a juror. The trial court, of course, does not
       impute his own perceptions to the jurors who are being examined, but these
       perceptions should be of assistance to it in deciding how detailed an inquiry to make
       of the members of the jury venire.
500 U.S. at 427.
No. 04-5746              Foley v. Parker                                                                 Page 19


        According to the state trial judge, all of the jurors were ultimately rehabilitated merely by
saying that they would do their “human best” to base a verdict solely on evidence presented in open
court. Foley, 942 S.W.2d at 882 n.2. This would seem to satisfy the requirement that they swear to
be able to “set aside what they had heard about the case and decide it based upon the evidence
presented in court.” Maj. Op. at 11 (citing Patton, 467 U.S. at 1036). But Patton requires a juror
challenged for cause to do more than simply swear his impartiality; rather, Patton requires that the
trial court reasonably believe that juror’s “protestation of impartiality.” With this in mind, here is
a sampling of what each of the ten jurors said on voir dire, as characterized by the Kentucky
Supreme Court majority, not the dissent:
       As to Juror A: “When asked her feelings about the killings, she related that she
       knew others who felt he was probably guilty and that she felt the same. . . . She knew
       Appellant was accused of four other murders.”
       As to Juror B: “He couldn’t recollect if he had ever said that Appellant was guilty.
       He didn’t think that he had made such a statement, but he could not say for sure.”
       As to Juror C: “[She] heard people remark that the trial would have to be moved
       because many in Laurel County had already formed an opinion. She had read about
       the Vaughn killings two years ago and was aware that Appellant was charged with
       other killings.”
       As to Juror D: “He knew that Appellant had been arrested for murder and was
       suspected of other killings. . . [He] admitted under questioning from defense counsel
       that most of the people in the community at that time believed that Appellant had
       killed both Vaughn brothers.”
       As to Juror E: “[He] could remember rumors of bodies found in a septic tank.”
       As to Juror F: “[He] recalled the [news]paper referring to Appellant as an FBI
       informant who had been suspected of a previous killing.”
       As to Juror G: “[She] remembered reading that Appellant was an FBI informant.
       Upon direct questioning by defense counsel, she stated that she was not sure if she
       could remove all information from her mind during the trial and deliberations.”
       As to Juror H: “She knew that Appellant was accused of killing four other persons
       and that four bodies were found in a septic tank.”
       As to Juror I: “She could remember that there was something about the bodies of
       four people from Ohio being found in a septic tank.”
       As to Juror J (the eventual foreman): “[Foley’s] defense attorney not only had
       represented family members of Juror J but also had opposed his family in other
       matters. . . . When questioned concerning whether Appellant had any obligation to
       produce evidence to prove himself innocent, Juror J stated that he wanted evidence
       from Appellant to prove his innocence.”
Foley, 942 S.W.2d at 882-83 n.2-11 (emphasis added).1



       1
           Here I am quoting the words of the Kentucky Supreme Court, not the words of the jurors themselves.
No. 04-5746               Foley v. Parker                                                                     Page 20


      Having reviewed these and other voir dire statements, the dissenters on the Kentucky
Supreme Court concluded that not only had the trial court disregarded relevant United States
Supreme Court precedent in not striking some of the jurors for cause, it has disregarded the
Commonwealth’s own precedents as well:
         It makes no difference that the jurors claimed they could give the defendants a fair
         trial. As we held in Pennington v. Commonwealth, “[i]t is the probability of bias or
         prejudice that is determinative in ruling on a challenge for cause;” and in Tayloe v.
         Commonwealth, “the conditions were such that their connections would probably
         subconsciously affect their decision of the case adversely to the defendants”; and in
         Marsch v. Commonwealth, “their statements, given in response to leading questions,
         that they would disregard all previous information, opinions and relationships should
         not have been taken at face value.” Pennington, Tayloe, and Marsch stand for the
         principle that objective bias renders a juror legally partial, despite his claim of
         impartiality.
Id. at 892 (internal citing references omitted).
        This is exactly my point as well. Accordingly, I believe the district court gave short shrift
to the actual, un-rehabilitated prejudice that many of Foley’s jurors possessed. Foley’s case is
unique in that most of the seated jurors—not simply a majority of those on the venire—were aware
not only of the circumstances surrounding the two murders on which they were to pass judgment,
but also of the four other murders with which Foley was accused. In a small, rural county such as
Laurel, it strains credulity to think that facts and rumors swirling about Foley’s gruesome quadruple
murder would not have significantly tainted his double-murder jury. See Nebraska Press Assoc. v.
Stuart, 427 U.S. 539, 599 n.22 (noting that “the smaller the community, the more likely there will
be a need for a change of venue . . . when a heinous crime is committed”). This was borne out by
the number of potential jurors dismissed immediately from the venire, as well as by the voir dire
statements of jurors whom Foley challenged for cause but who were ultimately seated by the trial
judge. I cannot deem “reasonable”       the Kentucky Supreme Court’s contention that these jurors had
been “rehabilitated” on voir dire.2
        In sum, I believe that the state courts of Kentucky did not merely apply Irvin incorrectly in
Foley’s case; rather, they applied it unreasonably. Such unreasonable application of Supreme Court
precedent mandates a grant of the writ on the intertwined change-of-venue and motion-to-strike
issues. Accordingly, I respectfully dissent as to Parts V and VI of the majority opinion.




         2
         The mere fact that there was a strong dissent in Foley’s state appeal does not of course mean that the Kentucky
Supreme Court majority was unreasonable in its application of Irvin. The dissenters do make several good points,
however, and these points align with my own determination that the majority was unreasonable.
