                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 12a0215p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                               X
        Petitioner-Appellee/Cross-Appellant, -
 ROBERT KEITH WOODALL,
                                                -
                                                -
                                                -
                                                    Nos. 09-5352/5406
          v.
                                                ,
                                                 >
                                                -
      Respondent-Appellant/Cross-Appellee. -
 THOMAS L. SIMPSON, Warden,
                                               N
                  Appeals from the United States District Court
                for the Western District of Kentucky at Paducah.
               No. 06-00216—Thomas B. Russell, District Judge.
                             Argued: November 29, 2011
                          Decided and Filed: July 12, 2012
              Before: MARTIN, COOK, and GRIFFIN, Circuit Judges.

                                 _________________

                                      COUNSEL
ARGUED: Susan Roncarti Lenz, OFFICE OF THE KENTUCKY ATTORNEY
GENERAL, Frankfort, Kentucky, for Appellant/Cross-Appellee. Laurence E. Komp,
Manchester, Missouri, for Appellee/Cross-Appellant. ON BRIEF: Susan Roncarti
Lenz, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky,
for Appellant/Cross-Appellee. Laurence E. Komp, Manchester, Missouri, David H.
Harshaw III, DEPARTMENT OF PUBLIC ADVOCACY, LaGrange, Kentucky for
Appellee/Cross-Appellant.
     MARTIN, J., delivered the opinion of the court, in which GRIFFIN, J., joined.
COOK, J. (pp. 9–19), delivered a separate dissenting opinion.
                                 _________________

                                       OPINION
                                 _________________

       BOYCE F. MARTIN, JR., Circuit Judge. Warden Thomas L. Simpson appeals
from a district court judgment granting in part Robert Keith Woodall’s petition for a writ



                                            1
Nos. 09-5352/5406        Woodall v. Simpson                                         Page 2


of habeas corpus filed under 28 U.S.C. § 2254. Woodall is a Kentucky prisoner under
sentence of death. Woodall cross-appeals the part of the judgment denying his
remaining claims. Woodall pled guilty to capital murder, capital kidnapping, and first-
degree rape. After a penalty trial, the trial court adopted the recommendation of the jury
and sentenced Woodall to death on the murder conviction and life imprisonment for the
remaining convictions. Woodall unsuccessfully appealed his sentence to the Kentucky
Supreme Court and then filed a writ of habeas corpus in federal district court. The
district court granted Woodall’s petition for a writ of habeas corpus because the trial
court denied him his Fifth Amendment right against self-incrimination and made a
constitutional error during jury selection. For the following reasons, the judgment of the
district court is AFFIRMED.

                                            I.

       The facts of this case have been set forth by the Kentucky Supreme Court,
Woodall v. Commonwealth, 63 S.W.3d 104, 114 (Ky. 2001), and need not be restated in
detail. The victim was a sixteen-year-old female. On January 25, 1997, the night of the
murder, she left her family home between 7:30 p.m. and 8:00 p.m., heading to a nearby
convenience store. When she had not returned home several hours later, her family
contacted the police. The victim’s unclothed body was found floating in a lake, about
one-half mile from the convenience store. Her throat had been slashed twice and her
windpipe was totally severed; officials determined the actual cause of death to be
drowning.

       Woodall pled guilty to capital murder, capital kidnaping, and first-degree rape.
At the penalty trial, Woodall cross-examined each of Kentucky’s eleven witnesses and
called fourteen of his own witnesses who testified about Woodall’s life and upbringing.
Woodall did not testify and requested that the trial judge instruct the jury that it should
not draw any adverse inference from his decision not to testify. The trial judge
concluded that Woodall was not entitled to the requested instruction, determining that,
by entering a guilty plea, Woodall had waived his right to be free from self-
incrimination. The jury recommended that Woodall be sentenced to death for the murder
Nos. 09-5352/5406         Woodall v. Simpson                                          Page 3


of the victim. The jury recommended that Woodall be punished to two consecutive life
sentences for the kidnaping and rape. The trial court adopted these recommendations.

         On direct appeal, the Kentucky Supreme Court affirmed Woodall’s convictions
and sentences, with two justices dissenting. Id. at 134-35. Woodall filed a motion for
relief from judgment and a motion to vacate his sentence. The trial court denied both
motions and the Kentucky Supreme Court affirmed those decisions. Woodall v.
Commonwealth, No. 2003-SC-000475-MR, 2005 WL 3131603 (Ky. Nov. 23, 2005);
Woodall v. Commonwealth, No. 2004-SC-0931-MR, 2005 WL 2674989 (Ky. Oct. 20,
2005).

         In 2006, Woodall filed his section 2254 petition in federal court. The district
court granted habeas relief for two of Woodall’s thirty claimed grounds for relief; the
court denied Woodall’s remaining claims as meritless. Specifically, the district court
granted Woodall’s petition for habeas on his claim that the trial court violated his Fifth
Amendment right against self-incrimination by failing to instruct the jury to draw no
adverse inference from Woodall’s decision not to testify, despite Woodall’s request for
such an instruction. The district court also found that the trial court violated Woodall’s
Fifth, Eighth, and Fourteenth Amendment rights during jury selection when the trial
court allowed Kentucky to use a peremptory challenge to strike an African-American
member of the jury without holding a hearing pursuant to Batson v. Kentucky, 476 U.S.
79 (1986). The warden appeals both of these decisions. Woodall appeals the district
court’s denial of his claim that the trial court improperly instructed the jury that they had
to find any mitigating circumstances unanimously, and the district court’s denial of his
motion for the appointment of a mental retardation expert. Because the failure to instruct
the jury that it could not draw an adverse inference from Woodall’s decision not to
testify was a violation of Woodall’s Fifth Amendment rights, and because we are in
“grave doubt as to the harmlessness” of this violation’s impact on the jury’s decision to
sentence Woodall to death, see O’Neal v. McAninch, 513 U.S. 432, 445 (1995), we
affirm the district court’s grant of the writ of habeas on this basis and do not reach the
other questions presented in this appeal.
Nos. 09-5352/5406        Woodall v. Simpson                                          Page 4


                                            II.

        When considering a petition for a writ of habeas corpus under the Antiterrorism
and Effective Death Penalty Act of 1996, this Court may not grant the writ unless it finds
that the state court’s decision was (1) “contrary to, or involved an unreasonable
application of, clearly established Federal law,” or (2) “based on an unreasonable
determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d);
see also Ruelas v. Wolfenbarger, 580 F.3d 403, 408 (6th Cir. 2009). 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.” Boykin v. Webb, 541 F.3d 638, 642 (6th Cir. 2008) (citing
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 applie[d that
principle to] the petitioner’s case.” Id.

        The warden challenges the district court’s grant of habeas corpus based on the
district court’s conclusion that the state courts unreasonably applied clearly established
federal law. Woodall’s principal argument is that the state court violated his Fifth
Amendment right against self-incrimination when it refused to give a requested jury
instruction that the jurors draw no adverse inference from his decision not to testify.

        The Fifth Amendment, made applicable to the states through the Fourteenth
Amendment, “forbids either comment by the prosecution on the accused’s silence or
instructions by the court that such silence is evidence of guilt.” Griffin v. California,
380 U.S. 609, 615 (1965). The Supreme Court has concluded that the Fifth Amendment
requires a trial judge to give a “no adverse inference” instruction when requested by a
defendant during the guilt phase of a trial. See Carter v. Kentucky, 450 U.S. 288,
303 (1981) (“No judge can prevent jurors from speculating about why a defendant stands
mute in the face of a criminal accusation, but a judge can, and must, if requested to do
so, use the unique power of the jury instruction to reduce that speculation to a
Nos. 09-5352/5406        Woodall v. Simpson                                         Page 5


minimum.”). In Estelle v. Smith, the Supreme Court held that a defendant’s entitlement
to the Fifth Amendment’s protection against self-incrimination extends from the guilt
phase to the penalty phase of a bifurcated capital trial. 451 U.S. 454, 462-63 (1981)
(“We can discern no basis to distinguish between the guilt and penalty phases of
respondent’s capital murder trial so far as the protection of the Fifth Amendment
privilege is concerned.”). More recently, in Mitchell v. United States, the Supreme Court
held that the “rule against negative inferences at a criminal trial appl[ies] with equal
force at sentencing,” even where a defendant has pled guilty. 526 U.S. 314, 329 (1999);
id. at 326 (“Where the sentence has not yet been imposed a defendant may have a
legitimate fear of adverse consequences from further testimony.”).

        We are faced with the question of whether Woodall has a clearly established
constitutional right to a requested “no adverse inference” instruction during the penalty
phase of a capital trial where he declined to testify. “The rule against adverse inferences
is a vital instrument for teaching that the question in a criminal case is not whether the
defendant committed the acts of which he is accused. The question is whether the
Government has carried its burden to prove its allegations while respecting the
defendant’s individual rights.” Id. at 330. Woodall’s Fifth Amendment rights survived
his guilty plea, id. at 326, and he was entitled to receive a “no adverse inference”
instruction once he requested it. Cf. Finney v. Rothgerber, 751 F.2d 858, 863-64
(6th Cir. 1985) (finding that the “due process clause requires a trial court, if requested,
to instruct the jury during the enhancement portion of a bifurcated trial of one charged
as a persistent felony offender that no adverse inference may be drawn from the
defendant’s failure to testify”).

        We agree with the district court that reading Carter, Estelle, and Mitchell
together, the only reasonable conclusion is that the trial court violated Woodall’s Fifth
Amendment rights by refusing to give a requested “no adverse inference” instruction.
The Kentucky Supreme Court’s denial of this constitutional claim was an unreasonable
application of Carter, Estelle, and Mitchell. See Williams, 529 U.S. at 407 (“[A] state-
court decision [is] an unreasonable application of [the Supreme] Court’s precedent if the
Nos. 09-5352/5406        Woodall v. Simpson                                          Page 6


state court . . . unreasonably refuses to extend [a legal] principle to a new context where
it should apply.”); Mason v. Mitchell, 543 F.3d 772, 772 (6th Cir. 2008) (“Clearly
established law . . . encompasses more than just bright-line rules laid down by the
Supreme Court. It also clearly includes legal principles and standards enunciated in the
Court’s decisions.” (alterations and internal quotation marks omitted)). The district
court held that a capital defendant has a Fifth Amendment right to a “no adverse
inference” instruction during the sentencing phase of a trial, even if guilt has already
been established through a plea agreement. We agree. “Given the gravity of the
decision to be made at the penalty phase, the State is not relieved of the obligation to
observe fundamental constitutional guarantees.” Estelle, 451 U.S. at 463. At stake in
the penalty phase of a capital trial such as Woodall’s is not only what specific
punishment the defendant will receive, but whether he will be put to death. The due
process clause requires that a trial court, if requested by the defendant, instruct the jury
during the penalty phase of a capital trial that no adverse inference may be drawn from
a defendant’s decision not to testify.

        The warden argues that any error resulting from the district court’s failure to give
a “no adverse inference” instruction was harmless because it did not have a substantial
and injurious effect or influence on the sentence of this case. For purposes of federal
habeas corpus review, a constitutional error that implicates trial procedures is considered
harmless unless it had a “substantial and injurious effect or influence in determining the
jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation
marks omitted); Doan v. Carter, 548 F.3d 449, 459 (6th Cir. 2008); see also Stewart v.
Erwin, 503 F.3d 488, 501 n.5 (6th Cir. 2007) (applying the harmless error standard to
constitutional errors in sentencing). “Under this standard, habeas petitioners may obtain
plenary review of their constitutional claims, but they are not entitled to habeas relief
based on trial error unless they can establish that it resulted in ‘actual prejudice.’”
Brecht, 507 U.S. at 637. To determine the effect of an error, the court must determine
“whether the [outcome that was] actually rendered in this trial was surely unattributable
to that error.” Doan, 548 F.3d at 459 (internal quotation marks omitted). The Supreme
Court has observed that “it is arguable that a refusal to give [a ‘no adverse inference’
Nos. 09-5352/5406        Woodall v. Simpson                                         Page 7


instruction] can never be harmless.” Carter, 450 U.S. at 304 (declining to reach the
question because it was not then presented and had not been before the state court); see
also Lakeside v. Oregon, 435 U.S. 333, 340 & n.10 (1978) (discussing the likelihood that
a jury will draw an adverse inference from a defendant’s decision not to testify). “The
Supreme Court has emphasized . . . that when a habeas court is in grave doubt as to the
harmlessness of an error that affects substantial rights, it should grant relief.” Erwin,
503 F.3d at 501 (internal quotation marks omitted). “[G]rave doubt” means “that, in the
judge’s mind, the matter is so evenly balanced that he feels himself in virtual equipoise
as to the harmlessness of the error.” O’Neal, 513 U.S. at 435; see also id. at 437-38
(“[I]f one cannot say, with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment was not substantially
swayed by the error, it is impossible to conclude that substantial rights were not
affected.”).

       The warden argues that any error in the court’s failure to instruct the jury was
harmless because of the overwhelming evidence of Woodall’s guilt presented during the
penalty phase and the overwhelming evidence of the heinousness of the crimes, and
because Woodall admitted the statutory aggravators necessary to impose the death
penalty. If it were the case that a finding of the existence of statutory aggravators
compels the imposition of the death penalty, then perhaps the trial court’s error would
have been “harmless.” But the finding of the aggravating circumstances did not compel
the jury to recommend a death sentence: the jury could have rejected the death penalty
even if it found the existence of aggravating circumstances beyond a reasonable doubt.
See Skaggs v. Parker, 235 F.3d 261, 271 (6th Cir. 2000) (describing the variety of
mitigating circumstances that a jury can consider during a penalty phase under Kentucky
law). Because we cannot know what led the jury to make the decision that it did, and
because the jury may well have based its decision on Woodall’s failure to testify, we
cannot conclude that this is a case of “harmless error.” See Carter, 450 U.S. at 304
(noting that it is “arguable” that refusing to give a “no adverse inference instruction” is
“never” harmless); Ullman v. United States, 350 U.S. 422, 426 (1956) (“Too many, even
those who should be better advised, view this privilege as a shelter for wrongdoers.
Nos. 09-5352/5406         Woodall v. Simpson                                        Page 8


They too readily assume that those who invoke it are either guilty of crime or commit
perjury in claiming the privilege.”); see also Bruno v. United States, 308 U.S. 287, 294
(1939). Indeed, the trial court itself appears to have drawn an adverse inference from
Woodall’s decision not to testify: in denying the requested instruction, the trial court
stated that it was “aware of no case law that precludes the jury from considering the
defendant’s lack of explanation of remorse or explanation of the crime or anything else
once guilt has been adjudged in sentencing.” The trial court’s own inferences illustrate
our concern. Given our grave doubt that the jury’s recommendation was not influenced
by adverse inferences drawn from Woodall’s decision not to testify, we “cannot say,
with fair assurance, after pondering all that happened without stripping the erroneous
action from the whole, that the judgment was not substantially swayed by the error.”
O’Neal, 513 U.S. at 437 (internal quotation marks omitted). Under these circumstances,
“it is impossible to conclude that the substantial rights were not affected.” Id. at 437-38
(internal quotation marks omitted). Therefore, under O’Neal, we treat the error as
harmful and grant Woodall’s petition on this basis. See Jensen v. Romanowski, 590 F.3d
373, 381 (6th Cir. 2009) (applying O’Neal where the court could not “be certain that the
error had ‘no or small effect’ on the jury’s verdict” and had “‘grave doubt’ that the error
was harmless”). Because the violation of Woodall’s substantial rights requires issuance
of the writ, we do not address—or pass judgment upon—the other claims at issue in this
appeal.

                                           III.

          For the foregoing reasons, the judgment of the district court is AFFIRMED. We
REMAND with instructions to conditionally grant the writ unless the State of Kentucky
elects to initiate resentencing proceedings within 180 days of the district court’s order.
Nos. 09-5352/5406         Woodall v. Simpson                                          Page 9


                                         _____________

                                           DISSENT
                                         _____________

        COOK, Circuit Judge, dissenting. In granting habeas relief, today’s majority
finds a prejudicial violation of clearly established federal law in the trial court’s failure
to provide a Carter instruction to the sentencing jury after the defendant pleaded guilty
to the relevant criminal conduct. Yet, the Kentucky Supreme Court carefully considered
petitioner’s Fifth Amendment claim in light of the same Supreme Court
decisions—Carter, Estelle, and Mitchell—and rightly found that none addresses the
circumstances presented here. The majority disregards that analysis, finds a violation
of clearly established law, and ultimately resolves the matter in favor of speculation,
worrying that the jury may have punished petitioner for failing to testify. This, despite
a mountain of undisputed evidence that petitioner abducted, raped, maimed, and
drowned a sixteen-year-old high school student. The court’s judgment defies AEDPA
deference and the Supreme Court’s harmless-error teachings. I respectfully dissent.

                                             I.

        Petitioner argues that the Fifth Amendment required the trial court to give a
Carter instruction to his sentencing jury—i.e., to instruct the sentencing jury to draw no
adverse inference from his decision not to testify at the sentencing hearing. Because the
appeal arises on habeas review, it turns on whether the Kentucky Supreme Court
“unreasonabl[y] appli[ed] . . . clearly established [f]ederal law, as determined by the
Supreme Court of the United States,” in rejecting petitioner’s claim. 28 U.S.C.
§ 2254(d)(1). The majority answers in the affirmative, citing three Supreme Court
decisions: Carter v. Kentucky, 450 U.S. 288 (1981); Estelle v. Smith, 451 U.S. 454
(1981); and Mitchell v. United States, 526 U.S. 314 (1999). The majority overlooks,
however, the Kentucky Supreme Court’s careful and correct distinguishing of those
cases, both on their facts and the legal principles at stake. Kentucky’s highest court
reasoned as follows:
Nos. 09-5352/5406      Woodall v. Simpson                                       Page 10


               Woodall argues that he was denied due process, his right not to
      testify and a reliable sentence determination when the trial judge refused
      to instruct the jury to draw no adverse inference from the decision of
      Woodall not to testify during the penalty trial. Woodall pled guilty to all
      of the charged crimes as well as the aggravating circumstances. The no
      adverse inference instruction is used to protect a nontestifying defendant
      from seeming to be guilty to the jury because of a decision not to testify.
      That is not the situation presented here. The instruction contemplated by
      Carter v. Kentucky, 450 U.S. 288, 101 S. Ct. 1112, 67 L. Ed. 2d 241
      (1981), could not have changed the outcome of a guilty determination
      that the defendant acknowledged by his admission of guilt. There was no
      reason or need for the jury to make any additional inferences of guilt.
               There is no error in this respect. Any possible error would be
      nonprejudicial because the defendant admitted the crimes and the
      evidence of guilt is overwhelming. Woodall claims that Estelle v. Smith,
      451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981), extended Fifth
      Amendment protection and thus the Carter, supra, rule to the penalty
      phase of a trial. Estelle, supra, is not a jury instruction case, unlike
      Carter. Estelle does not cite to Carter or indicate that Carter has been
      extended. The factual situation in Estelle is different from that presented
      in this case because it involved the use of an out-of-court statement the
      defendant made to a government expert. The statement in that case was
      in regard to a psychological examination by the government prosecutors
      which was used against the defendant without warning in the penalty
      trial. Neither Carter nor Estelle involved a guilty plea. Here, Woodall
      admitted guilt to all charges and did not contest the facts. He was not
      compelled to testify so there were no words that could be used against
      him so as to implicate the Fifth Amendment privilege as in Estelle.
              Woodall contends that Mitchell v. United States, 526 U.S. 314,
      119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999), permits a guilty plea which
      does not waive the privilege against self-incrimination at the sentencing
      phase. Mitchell, supra, does not apply here. In Mitchell, the defendant
      pled guilty to federal charges of conspiring to distribute five or more
      kilograms of cocaine and of distributing cocaine within 1000 feet of a
      school or playground. She reserved the right to contest the amount of the
      cocaine at the penalty phase. The amount of the cocaine would determine
      the range of penalties. She only admitted that she had done “some of” the
      conduct charged. She did not testify. Three other codefendants did testify
      as to the amount of cocaine she had sold. Ultimately, the U.S. Supreme
      Court ruled that it would not permit a negative inference to be drawn
      about her guilt with regard to the factual determination respecting the
      circumstances and details of the crime. Here, Woodall did not contest any
      of the facts or aggravating circumstances surrounding the crimes.
Nos. 09-5352/5406        Woodall v. Simpson                                        Page 11


Woodall v. Commonwealth, 63 S.W.3d 104, 115 (Ky. 2001), cert. denied, 123 S. Ct. 145
(2002). Only one Justice dissented from this portion of the court’s judgment. See id. at
134 (Stumbo, J., dissenting), 135 (Keller, J., dissenting on other grounds) (deeming any
error in this regard harmless, “because the defendant not only pled guilty, but admitted
to the aggravating circumstances”).

        Because the Kentucky Supreme Court applied the correct legal standards, and the
facts of this case differ materially from the circumstances of Carter, Estelle, and
Mitchell, AEDPA strictly limits our review to whether the Kentucky Supreme Court
unreasonably applied rules clearly established by those cases. 28 U.S.C. § 2254(d)(1).
“[C]learly established,” in this context, confines our inquiry to “the holdings, as opposed
to the dicta, of [U.S. Supreme Court] decisions as of the time of the relevant state-court
decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). And “[u]nreasonable
application” means “objectively unreasonable,” not simply incorrect. Lockyer v.
Andrade, 538 U.S. 63, 75–76 (2003) (explaining that AEDPA deference requires more
than clear error). Under this standard, a habeas petitioner “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). In other words, we may not grant habeas relief “so long as ‘fairminded jurists
could disagree’ on the correctness of the state court’s decision.” Id. at 786 (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); accord Gagne v. Booker, 680 F.3d
493, 512–14 (6th Cir. 2012) (en banc plurality opinion).

        AEDPA deference requires careful inspection of the distinctions highlighted by
the Kentucky Supreme Court.           “[E]valuating whether a rule application was
unreasonable requires considering the rule’s specificity. The more general the rule, the
more leeway courts have in reaching outcomes in case-by-case determinations.”
Harrington, 131 S. Ct. at 786 (quoting Yarborough, 541 U.S. at 664); see also Moses v.
Payne, 555 F.3d 742, 754 (9th Cir. 2009) (“[W]hen a Supreme Court decision does not
‘squarely address[ ] the issue in th[e] case’ or establish a legal principle that ‘clearly
Nos. 09-5352/5406        Woodall v. Simpson                                      Page 12


extend[s]’ to a new context to the extent required by the Supreme Court in these recent
decisions, [Wright v. Van Patten, 552 U.S. 120, 125 (2008),] it cannot be said, under
AEDPA, there is ‘clearly established’ Supreme Court precedent addressing the issue
before us, and so we must defer to the state court’s decision.”). The majority does not
suggest that any of its Fifth Amendment cases alone clearly established the trial court’s
obligation to give the no-adverse-inference instruction under the circumstances of this
case. Rather, it reads Carter, Estelle, and Mitchell as protecting a defendant’s Fifth
Amendment privilege at all stages of criminal proceedings, regardless of whether the
defendant disputes any of the incriminating evidence.

       Only Carter addresses the need for a prophylactic jury instruction to protect the
Fifth Amendment privilege against self-incrimination. Noting the tendency of juries to
infer guilt from a defendant’s silence, Carter held that trial courts must provide a
no-adverse-inference instruction during the guilt phase of a criminal trial upon request.
450 U.S. at 303. Yet, as the majority appears to recognize, Carter did not consider a
defendant’s entitlement to such an instruction at post-guilt stages of criminal
proceedings or the effect of a defendant’s guilty plea on that right—two variations
relevant to this appeal. See id. at 289–90, 300–05.

       Estelle and Mitchell speak more directly to these issues, generally recognizing
that the Fifth Amendment privilege extends to the sentencing phase of criminal trials and
that a generic guilty plea does not waive this right. But importantly, neither case
extended the Carter remedy—a right to a no-adverse-inference instruction—to those
specific circumstances. Estelle involved a state’s surprise use of defendant’s pre-trial
statements to establish a necessary aggravating factor (future dangerousness) for capital
punishment. 451 U.S. at 462–63. The defendant made the statements at a court-ordered,
pre-trial psychiatric evaluation without the benefit of Miranda warnings. The Fifth
Amendment violation thus involved both the coercive nature of the interrogation
procedure and the state’s use of the defendant’s unwitting pre-trial statements to
establish a necessary penalty factor against him. Id. at 467–69 (vacating the death
sentence). Similarly, Mitchell found a Fifth Amendment violation where the sentencing
Nos. 09-5352/5406        Woodall v. Simpson                                      Page 13


judge admitted to drawing an adverse inference regarding a disputed aggravating
factor—the amount of drugs involved—from the defendant’s failure to rebut the
government’s sentencing-hearing witnesses. Although the defendant previously pleaded
guilty to a drug-conspiracy crime, she disputed the government’s drug-quantity position,
which carried a heavier penalty. Because her guilty plea did not eliminate the possibility
of additional punishment, the Mitchell Court found that the Fifth Amendment precluded
the trial court from drawing an adverse inference from her silence. 526 U.S at 330.

       Admittedly, Estelle and Mitchell discuss the Fifth Amendment privilege in
expansive terms. From Estelle:

       The Fifth Amendment privilege is as broad as the mischief against which
       it seeks to guard, and the privilege is fulfilled only when a criminal
       defendant is guaranteed the right to remain silent unless he chooses to
       speak in the unfettered exercise of his own will, and to suffer no penalty
       . . . for such silence.

451 U.S. at 467–68 (internal citations and quotation marks omitted). Mitchell goes
further, with the following statements:

             Treating a guilty plea as a waiver of the privilege at sentencing
       would be a grave encroachment on the rights of defendants. . . .
               ....
              Where the sentence has not yet been imposed a defendant may
       have a legitimate fear of adverse consequences from further
       testimony. . . .
               ....
                The concerns which mandate the rule against negative inferences
       at a criminal trial apply with equal force at sentencing. Without question,
       the stakes are high: Here, the inference drawn by the District Court from
       petitioner’s silence may have resulted in decades of added imprisonment.
       The Government often has a motive to demand a severe sentence, so the
       central purpose of the privilege—to protect a defendant from being the
       unwilling instrument of his or her own condemnation—remains of vital
       importance.
               ....
Nos. 09-5352/5406          Woodall v. Simpson                                        Page 14


         . . . The rule against adverse inferences is a vital instrument for teaching that the
question in a criminal case is not whether the defendant committed the acts of which he
is accused. The question is whether the Government has carried its burden to prove its
allegations while respecting the defendant's individual rights. The Government retains
the burden of proving facts relevant to the crime at the sentencing phase and cannot
enlist the defendant in this process at the expense of the self-incrimination privilege. . . .

526 U.S. at 324, 326, 329, 330. But these statements must be read in context. Estelle
involved the actual use of a defendant’s coerced statements against him. Both Estelle
and Mitchell presented an adverse inference that effectively shifted the government’s
burden of proving a disputed aggravating circumstance to the defendant. Accordingly,
both cases involved government or court actions that penalized the defendant—by
exposing the defendant to greater punishment—for exercising the Fifth
Amendment privilege.

        This case did not. The state did not coerce petitioner to make any statement.
Nor did it seek an adverse inference or oppose petitioner’s request for a Carter
instruction during the sentencing hearing. And, importantly, the state did not shift its
burden of proving a disputed aggravating factor to petitioner. The state’s current
opposition to habeas relief reflects the unique circumstances of Woodall’s sentencing
hearing—namely, that his guilty plea admitted both the relevant criminal conduct and
the required aggravating circumstances for the death penalty (rape and kidnapping), and
that his sentencing position did not dispute any of these facts. Now that Woodall has
been sentenced, the state has a legitimate interest in opposing Woodall’s stance on the
Carter instruction.     In the absence of disputed facts, Woodall’s silence would
demonstrate only a lack of remorse; a Carter instruction would restrict the jury from
considering that relevant fact.        Considering that Mitchell expressly exempted
lack-of-remorse and acceptance-of-responsibility findings from its holding, 526 U.S. at
330, the state has good reason to believe that the Fifth Amendment did not require the
Carter instruction here.

        In sum, the punitive element so critical in Estelle and Mitchell—the state’s use
of the defendant’s silence to impose greater punishment—is wholly absent. Cf. Lakeside
v. Oregon, 435 U.S. 333, 344 (1978) (explaining that “the government may not add
Nos. 09-5352/5406             Woodall v. Simpson                                                  Page 15


unnecessarily to the risk taken by a defendant who stands mute”). And none of the Fifth
Amendment cases cited by the majority clearly establishes the right to a Carter
instruction in these circumstances.1 The majority’s position extends the rules of those
cases, and fairminded jurists may differ in the application of those rules to the facts in
this case.

         Six Justices of the Kentucky Supreme Court, in fact, did so. The majority
improperly dismisses their judgment (as well as the Report and Recommendation of the
federal magistrate judge) without so much as a nod to the standard that the judgment be
beyond the purview of fairminded jurists. This stance not only flouts the AEDPA
standard, but also undermines the animating purposes of AEDPA deference: comity,
finality, and federalism. See, e.g., Woodford v. Garceau, 538 U.S. 202, 206 (2003).

         Reasonable though the majority’s Fifth Amendment analysis may be, AEDPA
deference precludes us from substituting our reasonable judgment for that of the state’s
highest court. In my view, the Kentucky Supreme Court reasonably applied federal law.

                                                    II.

         The majority compounds its error by engaging in a form of possible-harm review
that verges on a presumption of prejudice. This leniency appears both in its emphasis
on dicta opining about the likelihood that juries draw adverse inferences, and in its
ultimate finding of a “very real risk” of prejudice. Alas, the correct harmless-error
standard does not permit such speculation, and neither does the undisputed evidence of
this heinous crime.

         As foreshadowing of the harmless-error review to come, the court twice
emphasizes a statement in Carter that “it is arguable that a refusal to give an instruction


         1
            The majority’s passing mention of Finney v. Rothgerber, 751 F.2d 858, 864 (6th Cir. 1985) does
not fit this bill for a number of reasons. First, Finney is not a Supreme Court decision and therefore not
“clearly established” federal law under AEDPA. See 28 U.S.C. § 2254(d)(1); Williams, 529 U.S. at 412.
Second, the decision predates the enactment of AEDPA, and thus did not assess the state-court judgments
under its deferential “unreasonable application of . . . clearly established [f]ederal law” standard. And
third, the court found the Fifth Amendment violation harmless under the demanding, pre-Brecht, Chapman
rule, noting that undisputed evidence satisfied “all of the statutory requirements for guilt as a persistent
felony offender.” Finney, 751 F.2d at 864–65.
Nos. 09-5352/5406              Woodall v. Simpson                                                   Page 16


similar to the one that was requested here can never be harmless.” 450 U.S. at 304. Yet
because Carter declined to decide the issue, our decision in Finney v. Rothgerber
requires us to review for harmless error. 751 F.2d 858, 864 (6th Cir. 1985) (reviewing
for harmless error the state court’s failure to give a Carter instruction during the
persistent-felony-offender penalty phase of a criminal trial); see also Chapman v.
California, 386 U.S. 18, 22 (1967) (subjecting most constitutional claims to harmless-
error review, including a prosecutor’s comment about the defendant’s exercise of the
Fifth Amendment privilege); Hunter v. Clark, 934 F.2d 856, 859–60 (7th Cir. 1991) (en
banc) (justifying application of harmless-error review to a Carter claim by noting the
more severe infraction on the Fifth Amendment privilege resolved by harmless-error
review in Chapman); Richardson v. Lucas, 741 F.2d 753, 755 (5th Cir. 1984) (same).2
The majority ostensibly concedes this point.

         It then begins its harmless-error review on the right track, citing Brecht v.
Abrahamson, 507 U.S. 619 (1993) for the standard applicable to habeas cases. From
Brecht, the majority correctly defines harmful error as one “ha[ving] substantial and
injurious effect or influence in determining the jury’s verdict.” Id. at 637 (citation
omitted). But then the majority offers conflicting statements from Brecht and Doan v.
Carter, 548 F.3d 449, 459 (6th Cir. 2008), first saying that the petitioner must establish
“actual prejudice,” and then suggesting that harmless error refers only to outcomes
“surely unattributable to [the alleged] error.” The majority’s conclusion—that the



         2
            Bruno v. United States, cited by the majority, does not counsel otherwise, both because it
involved a statutory privilege and statutory harmless-error review, and because it predates Chapman’s
mandate of harmless-error review for most constitutional errors. Bruno v. United States, 308 U.S. 287,
293–94 (1939) (construing federal statute guaranteeing a defendant’s right to testify or remain silent to
require a preemptive, no-adverse-inference instruction, and finding harmful the denial of that right).
          During oral argument, petitioner’s counsel briefly suggested that the denial of a Carter instruction
here constituted a “structural” error exempt from harmless-error review. See generally Brecht v.
Abrahamson, 507 U.S. 619, 629 (1993) (differentiating between “trial error[s]” subject to harmless-error
review and “structural defects” presumed prejudicial). But counsel did not make that argument in
petitioner’s appellate brief (see Appellee Br. at 32–37), and therefore offers no explanation for the
harmless-error review in Chapman—a case involving a more severe Fifth Amendment violation—or our
decision in Finney. More recent articulations of what constitutes “structural error” do not disturb these
precedents. See, e.g., Neder v. United States, 527 U.S. 1, 8 (1999) (reiterating that “most constitutional
errors can be harmless” and describing “structural errors” as “defect[s] affecting the framework within
which the trial proceeds” that “deprive defendants of basic protections” so as to undermine the reliability
of the trial’s “determination of guilt or innocence” (internal citations and quotation marks omitted)).
Nos. 09-5352/5406         Woodall v. Simpson                                        Page 17


absence of a Carter instruction may have influenced the jury—reveals that it tips the
scales in favor of the habeas petitioner.

        As the majority appears to acknowledge, O’Neal v. McAninch clarified the
habeas harmless-error standard announced in Brecht. O’Neal v. McAninch, 513 U.S. 432
(1995); see also Fry v. Pliler, 551 U.S. 112, 121 n.3 (2007) (plurality). O’Neal
explained that Brecht’s “actual prejudice” language did not burden the habeas petitioner
to produce evidence of prejudice. 513 U.S. at 436–39. It did, however, acknowledge
the more lenient harmless-error standard applicable to habeas cases, as compared to
direct appeals. O’Neal, 513 U.S. at 438 (differentiating the Brecht standard from the
“stricter” Chapman standard); see also Fry, 551 U.S. at 119–20 (explaining that the
Brecht/Chapman harmless-error dichotomy survived AEDPA’s enactment). After
O’Neal, “grave doubt” became the harmfulness threshold for habeas harmless-error
review. O’Neal, 513 U.S. at 435. “Grave doubt” refers to situations where, after
reviewing the record, “the matter is so evenly balanced that [the judge] feels himself in
virtual equipoise as to the harmlessness of the error.” Id.; see also id. at 436–37 (“[W]e
think it conceptually clearer for the judge to ask directly, ‘Do I, the judge, think that the
error substantially influenced the jury’s decision?’ than for the judge to try to put the
same question in terms of proof burdens (e.g., ‘Do I believe the party has borne its
burden of showing . . .?’).”).

        Our cases follow this guidance. E.g., Ferensic v. Birkett, 501 F.3d 469, 480–81
(6th Cir. 2007); Caldwell v. Bell, 288 F.3d 838, 842–43 (6th Cir. 2002). Doan did not,
though it still found harmless error under a stricter standard. Doan, 548 F.3d at
459 (neglecting to cite O’Neal, and instead applying the “surely unattributable” standard
from Sullivan v. Louisiana, 508 U.S. 275, 279 (1993), a case applying Chapman
harmless-error review on direct appeal). We must follow the “grave doubt” method
advanced in O’Neal.

        With this standard, review of the record here leaves little room for doubt, let
alone grave doubt. The state presented eleven witnesses and the defense fourteen. The
sentencing jury heard undisputed evidence of the abduction, rape, maiming, and
Nos. 09-5352/5406        Woodall v. Simpson                                      Page 18


drowning of the victim; petitioner admitted as much by virtue of his guilty plea.
Undisputed forensic evidence corroborated these facts. On the issue of remorse, the jury
heard independent testimony from petitioner’s mother that, shortly after the murder,
petitioner came to her house, sat in a recliner, and watched television as if nothing had
happened. Petitioner even benefitted from a jury instruction (No. 1) he did not deserve,
which told the jurors to presume his innocence of the aggravating factors he admitted,
unless the state presented proof beyond a reasonable doubt.

       Conversely, the jury heard nothing about petitioner’s silence from the state or
from the trial court, and we have no way of knowing whether it even noticed.
Nevertheless, the majority assumes “a very real risk” that his silence “had substantial
and injurious effect or influence” on the verdict. Faced with this overwhelming and
undisputed evidence, why would it?

       The majority faults the trial judge for drawing an adverse inference (the Mitchell
mistake), but the judge did nothing more than issue a legal ruling, stating that he knew
of no authority precluding a sentencing jury from considering a defendant’s lack of
remorse. And even if he did draw an adverse inference, the jury who made the
sentencing recommendation did not hear this statement. Petitioner correctly notes that,
under Kentucky law, the sentencing jury retains the discretion to recommend a life
sentence, despite the presence of aggravating factors. Yet, that fact does not make it any
more likely that Woodall’s silence substantially affected the jury’s verdict.

       Notably absent from the majority’s harmless-error analysis is any discussion of
Finney, a case the majority cites as supporting its finding of a constitutional violation.
Finney involved somewhat similar circumstances, in that the trial court refused to give
a Carter instruction to the sentencing jury in a post-guilt, persistent-felony-offender
hearing. There, despite finding a Fifth Amendment violation, we held that “[t]he
overwhelming evidence of guilt as a persistent felony offender makes failure to give the
requested instruction harmless beyond a reasonable doubt as to that issue.” Finney,
751 F.2d at 864–65 (noting that undisputed evidence established the statutory
prerequisites for the sentencing enhancement). We did so, despite applying the stricter,
Nos. 09-5352/5406       Woodall v. Simpson                                      Page 19


pre-Brecht, Chapman standard, which required harmlessness “beyond a reasonable
doubt.” One can only wonder how the circumstances deemed harmless beyond a
reasonable doubt in Finney somehow become harmful under the more lenient
“substantial and injurious effect” standard of Brecht, or even leave “grave doubt” as to
harmfulness under O’Neal.

       “There is, of course, a strong policy in favor of accurate determination of the
appropriate sentence in a capital case, but there is an equally strong policy against
retrials years after the first trial where the claimed error amounts to no more than
speculation.” Boyde v. California, 494 U.S. 370, 380 (1990). The state expended
significant resources to ensure a fair sentencing hearing for Woodall. The majority
brushes that aside on supposition. Pure conjecture does not establish grave doubt. I
harbor none and would deny the writ.
