        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206            2    Bowling v. Parker                            No. 01-5832
    ELECTRONIC CITATION: 2003 FED App. 0330P (6th Cir.)
                File Name: 03a0330p.06                     Appellee.      ON BRIEF:           Elizabeth R. Stovall,
                                                           COMMONWEALTH OF KENTUCKY, DEPARTMENT OF
                                                           PUBLIC ADVOCACY, LaGrange, Kentucky, Susan J.
UNITED STATES COURT OF APPEALS                             Balliet, DEPARTMENT OF PUBLIC ADVOCACY,
                                                           Frankfort, Kentucky, for Appellant. Ian G. Sonego, OFFICE
               FOR THE SIXTH CIRCUIT                       OF THE ATTORNEY GENERAL, Frankfort, Kentucky, for
                 _________________                         Appellee.

 THOMAS CLYDE BOWLING ,             X                                          _________________
 JR.,                                -
                                                                                   OPINION
            Petitioner-Appellant, -                                            _________________
                                     -   No. 01-5832
                                     -
              v.                      >                      KAREN NELSON MOORE, Circuit Judge. Thomas Clyde
                                     ,                     Bowling, Jr. (“Bowling”) appeals the district court’s
                                     -                     judgment denying both his petition for a writ of habeas corpus
 PHILLIP PARKER, Warden,             -                     and his request for an evidentiary hearing in conjunction with
           Respondent-Appellee. -                          that petition. Bowling was convicted in state court of
                                     -                     murdering Tina and Eddie Earley and sentenced to death. His
                                    N                      conviction and death sentence were affirmed by Kentucky
        Appeal from the United States District Court       courts on direct appeal and in post-conviction proceedings.
      for the Eastern District of Kentucky at Lexington.   In the district court and now on appeal, Bowling raises
  No. 99-00236—Karl S. Forester, Chief District Judge.     numerous claims of error. He contends that he was denied
                                                           proper jury instructions, given ineffective assistance of
               Argued: December 10, 2002                   counsel, deprived of an evidentiary hearing, denied a fair jury,
                                                           subjected to numerous instances of prosecutorial misconduct,
        Decided and Filed: September 17, 2003              and given a sentence that was constitutionally
                                                           disproportionate. For the reasons that follow, we AFFIRM
   Before: MOORE, GILMAN, and GIBBONS, Circuit             the decision of the district court below, and deny Bowling’s
                     Judges.                               petition for a writ of habeas corpus and his request for an
                                                           evidentiary hearing.
                  _________________
                                                                               I. BACKGROUND
                       COUNSEL
                                                           A. Factual Background
ARGUED: Elizabeth R. Stovall, COMMONWEALTH OF
KENTUCKY, DEPARTMENT OF PUBLIC ADVOCACY,                     Early in the morning on April 9, 1990, Eddie and Tina
LaGrange, Kentucky, for Appellant. Ian G. Sonego, OFFICE   Earley were shot to death in their automobile in a parking lot
OF THE ATTORNEY GENERAL, Frankfort, Kentucky, for          outside a Lexington dry-cleaning establishment. Their two-

                            1
No. 01-5832                          Bowling v. Parker       3    4    Bowling v. Parker                            No. 01-5832

year-old son Christopher was also shot, but not fatally. Police   defendant to have eighteen peremptory challenges and the
arriving at the scene found several witnesses offering varied     government twelve, with twelve people remaining to be jurors
observations of the shooter, collected several bullets from       and two to be alternates. Later, however, the court stated that
inside and outside the vehicle, and recovered debris consistent   it was worried that the jury pool would be too small, so it
with a car collision. After analyzing the debris, the police      ended up qualifying forty-eight jurors, but then struck the four
determined that the Earleys’ car must have been hit by a 1981     extra jurors.
light blue Chevrolet Malibu. They also determined that a
1981 Malibu was registered in the county to Bowling. The             On December 12, the guilt phase of the trial began. The
police, however, did not seek to arrest Bowling at that point;    Commonwealth produced twenty-five witnesses. There were
instead they pursued several theories of who could have           three eye-witnesses to the crime. The first, Larry Turner,
murdered the Earleys.                                             never saw the shooter; he went to the crime scene after
                                                                  hearing what he thought was a car backfiring. By the time he
   On the following day, April 10, 1990, police received a        reached the car, the killer had already fled, and Turner
telephone call from Bowling’s sister, Patricia Gentry. Gentry     observed only the Earleys’ dented car, the dead bodies, and
and her mother, Iva Lee Bowling, were worried because they        the child crying. David Boyd testified that while stopped at
had not seen Bowling, who was affectionately known as T.C.,       a stoplight, he looked back to see two cars in the parking lot
since approximately 6:00 a.m. the preceding day. Watching         and a man firing a gun into one of them. According to Boyd,
the news reports, they realized that Bowling’s car matched the    the shooter then stood and looked at the scene before driving
description of the suspected killer’s car. Searching for          off. Boyd described the car as being a light blue 1979 or
Bowling, the two women drove to property owned by the             1980 Malibu and described the shooter as being six feet tall
family in rural Powell County. There they discovered              with a medium build, wearing a black jacket and a brimmed
Bowling’s car. Bowling, however, was not there. When they         hat. The third eyewitness, Norman Pullins, who had seen the
returned to Gentry’s Knoxville home, they discovered              events from a nursing home across the street, could not be
Bowling asleep on the couch. After consulting with their          found by either party. By agreement of the parties, the police
minister, they called the police, who came and picked             played their audiotape of an interview with Pullins that took
Bowling up without incident. The police then recovered            place the morning of the shootings. The police next testified
Bowling’s car from the Powell County property, where they         regarding the crime scene and presented to the jury
also discovered a buried .357-magnum revolver.                    photographs and a videotape depicting the scene in
                                                                  considerable detail.
   Bowling was represented at trial by three attorneys:
Baldani, Summers, and Richardson. Prior to trial, these             The Commonwealth then focused on the evidence
attorneys had Bowling undergo a neurological and                  discovered at the Bowling property in Powell County. One
psychological evaluation by Dr. Donald Beal.                      officer testified that he found Bowling’s Malibu in the thicket,
                                                                  and an orange jacket, an orange Little Caesar’s T-shirt from
B. The Trial                                                      Bowling’s workplace, and a black Rangers’ hat in a small
                                                                  shed. The officer also found an unused outhouse on the
  On December 10, 1990, the trial began. The court’s stated       property into which several empty alcohol bottles had been
goal in voir dire was to qualify forty-four of the ninety-nine    thrown. Another officer testified to finding the gun on the
pooled jurors. Qualifying forty-four jurors would allow the       property. Lastly, an officer testified that he retrieved
No. 01-5832                           Bowling v. Parker       5    6       Bowling v. Parker                                 No. 01-5832

Bowling’s personal effects from his sister’s house, including      worked. Bowling had also shown to his family the gun that
a black jacket.                                                    he had recently purchased from Brackett.
   The state then introduced expert testimony. A forensic            The defense presented no witnesses, choosing not to
pathologist testified that the Earleys had no chance of            present the expert testimony of Dr. Beal. Bowling’s counsel
surviving the injuries that they sustained. A police               asked for time to inform Bowling again of his right to testify,
automotive expert testified that the glass, plastic, and chrome    but after consulting with Bowling, counsel announced that
debris from the crime scene matched Bowling’s car. Another         Bowling would not testify.1 The defense rested on their
expert testified that paint from the Earleys’ car had rubbed off   cross-examinations of the witnesses. The defense had
(because of the accident) onto Bowling’s car, and that paint       brought out Bowling’s erratic behavior during the weekend
from Bowling’s car had also rubbed off on the Earleys’ car.        before the shootings. Brackett admitted, while he was being
The expert unambiguously stated that tests on the paint            cross-examined, that he traded in handguns without keeping
samples demonstrated that it was Bowling’s car that had            records and had poor memory and hearing. David Boyd
rammed into the Earleys’ vehicle. A state ballistics expert        admitted that he may have told a police detective that the
identified the recovered gun as a Smith and Wesson .357 and        shooter had long brown hair, a dark complexion, and possibly
stated that the bullets shot from it would have identical          a mustache — none of which describe Bowling. Though
markings to those recovered from the crime scene. On cross-        defense counsel did not gain much ground from the expert
examination, however, he admitted that there may be millions       witnesses, the Commonwealth’s ballistics expert did concede
of guns that would have left marks like those on the bullets       that the .357-magnum was one of perhaps millions of guns
found at the crime scene.                                          that could have fired the bullets that killed the Earleys.
                                                                   Defense counsel also established that none of Bowling’s
  The Commonwealth also presented testimony from Clay              possessions, including his car, had any blood on them, that
Brackett that he had sold a similar-looking Smith and Wesson       there were no fingerprints found on the gun or at the crime
.357 to Bowling a few days before the killings. There were         scene, and that the only lead residue on Bowling’s belongings
also two witnesses, Jack Mullins and Jack Strange, who             was inside the left pocket of his jacket and could have come
placed Bowling on the road in front of the property in Powell      from a gun or from bullets.
County the evening of the murders.
                                                                     The defense asked for jury instructions on extreme
  The Commonwealth then called Bowling’s family to testify         emotional disturbance, circumstantial evidence, and reckless
to the events leading up to the telephone call that they made      homicide. The trial court denied these instructions. The jury
to the police. Bowling’s family testified that Bowling had         found Bowling guilty of intentionally murdering Tina and
been seriously depressed in the weeks before the shootings.        Eddie Earley and assaulting their son Christopher.
Bowling was also obsessed with death. During a drive with
his mother a few days before the shooting, Bowling told her
that his time had run out and that she should look for him at
the family property in Powell County if he disappeared.
During this drive, Bowling had stopped for approximately               1
thirty minutes in a parking lot, behind the nursing home                  In an interview with a mental health worker held while Bowling was
property across from the dry-cleaning place where the Earleys      in jail, Bo wling claimed that he “ha d no recollection o f the day of the
                                                                   crime.” J.A. at 54 (Pet. Br. in Dist. Ct.).
No. 01-5832                            Bowling v. Parker       7    8    Bowling v. Parker                            No. 01-5832

   Before the penalty phase began, Bowling, his defense             C. Post-Trial Case History
counsel, and the prosecution met because Bowling had filed
a pro se motion to discharge his attorneys. Bowling stated            Bowling’s conviction and sentences underwent mandatory
that he was angry with his attorneys because they had               review by the Kentucky Supreme Court pursuant to Kentucky
essentially presented no defense on his behalf. Bowling             Revised Code § 532.075. The Kentucky Supreme Court
claimed that he did not have ample opportunity to meet with         affirmed his conviction and sentence on September 30, 1993.
his attorneys; Bowling told the state court judge that his          Bowling v. Commonwealth, 873 S.W.2d 175 (Ky. 1993)
attorneys had not spent more than a total of one hour with him      [“Bowling I”]. Two justices dissented. The dissenting
throughout the litigation. Bowling said that there were many        justices argued that Bowling should have been given an
witnesses who could have been called to testify — although,         instruction on extreme emotional disturbance in the guilt and
when questioned, he could not give the names of any such            penalty phases, id. at 182-85 (Leibson, J., dissenting), and one
witnesses or list any particular act that his attorneys failed to   justice also would have reversed the conviction because of
do. Bowling stressed, however, that he had no time to tell his      prosecutorial misconduct, id. at 185-87 (Burke, S.J.,
attorneys of witnesses who might have been called, because          dissenting).
his attorneys had not met with him. Bowling said that he felt
that his attorneys did not take his case seriously, and that they      Bowling then began his post-conviction proceedings in a
once remarked to another person in front of Bowling that they       state circuit court. Here, however, Bowling made a
did not have a defense. The district court denied his motion        potentially significant procedural error. On February 28,
to discharge his attorneys.                                         1995, he filed a notice of intent to file a motion for post-
                                                                    conviction relief under Kentucky Rule of Criminal Procedure
   The penalty phase then began. The defense called six             (known as “RCr”) 11.42. However, he did not file the motion
witnesses to testify. There were three non-family members:          itself at that time. Governor Patton set Bowling’s execution
a former co-worker of Bowling and two jail employees, all of        date for February 1, 1996. Eventually, the Supreme Court of
whom spoke kindly of Bowling. The defense also called               Kentucky determined that Bowling’s execution could not be
Bowling’s mother, his sister, and his son, who discussed their      stayed without the actual motion being filed. Bowling v.
love for Bowling, his mental and emotional deterioration in         Commonwealth, 926 S.W.2d 667, 669 (Ky. 1996). So on
the weeks before the killings, his failed marriage, and his         January 26, 1996, Bowling’s counsel filed a rushed but
having only a ninth-grade education and being of low mental         formal RCr 11.42 motion, and asked for more time to file an
ability. Bowling did not testify.                                   amended or supplemental motion. On February 8, 1996, the
                                                                    state circuit court granted the request, and gave Bowling 120
  The trial court denied Bowling’s request for specific             additional days running from the initial deadline, January 26,
mitigating instructions on extreme emotional disturbance,           1996. On May 28, 1996, a supplemental RCr motion was
mental illness, intoxication, and model jail conduct, but gave      filed, but it was not verified as required by Kentucky law. On
a general mitigating instruction. The trial court also              June 6, 1996, clearly after the 120-day period, Bowling filed
instructed the jurors on one statutory aggravating factor, that     the revised version as a verified supplemental motion. On
of intentionally causing multiple deaths. The jury found that       October 1, 1996, the circuit court ordered both versions of the
the aggravating factor applied and recommended two death            supplemental motion stricken, the first for being unverified
sentences. The trial judge sentenced Bowling to death.              and the second for being untimely, which ostensibly
                                                                    prevented those claims from being addressed. The state
No. 01-5832                          Bowling v. Parker        9   10    Bowling v. Parker                            No. 01-5832

circuit court recognized its power to allow amendment for         244 F.3d 512, 515 (6th Cir.), cert. denied, 534 U.S. 828
equitable reasons but declined to exercise that power. The        (2001). As Bowling’s habeas petition was filed on
circuit court found against Bowling on the merits on all the      August 12, 1999, it is governed by the Antiterrorism and
remaining claims.                                                 Effective Death Penalty Act of 1996 (“AEDPA”). Pursuant
                                                                  to AEDPA, relief is available with respect to claims
   The Kentucky Supreme Court unanimously affirmed the            adjudicated on the merits in state court only if the
circuit court’s decision. Bowling v. Commonwealth, 981            adjudication:
S.W.2d 545 (Ky. 1998) [“Bowling II”]. The Kentucky
Supreme Court dismissed the claims Bowling raised in his            (1) resulted in a decision that was contrary to, or
initial RCr petition as not having merit. The Kentucky                  involved an unreasonable application of, clearly
Supreme Court then addressed the claims raised in Bowling’s             established Federal law, as determined by the
struck supplemental motions. The Kentucky Supreme Court                 Supreme Court of the United States; or
prefaced its analysis of Bowling’s claims with the following
statement:                                                          (2) resulted in a decision that was based on an
                                                                        unreasonable determination of the facts in light of
  Appellant presents a number of other issues in his                    the evidence presented in the State court proceeding.
  supplemental RCr 11.42 motion. Notwithstanding that
  his supplemental motion was struck by the trial court, in       28 U.S.C. § 2254(d)(1)-(2). Moreover, the findings of a state
  the interest of judicial economy we will review the seven       court are presumed to be correct and can only be contravened
  additional claims of ineffective assistance of counsel          if Bowling can show by clear and convincing evidence that
  raised in the motion.                                           they are erroneous. See 28 U.S.C. § 2254(e)(1). The
                                                                  presumption of correctness also attaches to the factual
Id. at 551. The Kentucky Supreme Court then denied                findings of a state appellate court based on the state trial
Bowling’s claims on the merits.                                   record. See Sumner v. Mata, 449 U.S. 539, 546-47 (1981).
  Bowling filed a motion for a writ of habeas corpus with the     B. Procedural Default
district court on August 12, 1999. Bowling moved for an
evidentiary hearing with the district court on some issues, but     Before addressing the merits of Bowling’s appeal, we must
this motion was denied. Ultimately, the district court denied     address the state’s contention that some of Bowling’s claims
the writ. Bowling v. Parker, 138 F. Supp. 2d 821 (E.D. Ky.        are procedurally defaulted. The government argues that
2001) [“Bowling III”]. The district court granted a certificate   because Bowling’s supplemental RCr motions were struck by
of appealability as to all issues.                                the trial court, the claims that appear only therein are
                                                                  defaulted and cannot be revived in a federal habeas corpus
                      II. ANALYSIS                                action.
A. The Legal Standards of AEDPA                                     We reject the state’s contention that these claims have been
                                                                  procedurally defaulted. It is clear that if a petitioner defaults
  This court reviews de novo the legal conclusions of a           his federal claims in state court by failing to comply with an
district court denying habeas relief. Palazzolo v. Gorcyca,       adequate and independent state procedural rule, federal
No. 01-5832                           Bowling v. Parker      11    12    Bowling v. Parker                            No. 01-5832

habeas relief is barred unless the petitioner can show cause for   supplemental motion. After noting that the claims were
the default and actual prejudice, or a resultant fundamental       raised only in the struck supplemental pleadings, the
miscarriage of justice. Coleman v. Thompson, 501 U.S. 722,         Kentucky Supreme Court went on to consider the merits of
750 (1991). This court recently spoke to how courts are to         those claims, stating, “Notwithstanding that his supplemental
examine an allegation of procedural default:                       motion was struck by the trial court, in the interest of judicial
                                                                   economy we will review the seven additional claims of
  First, the court must determine whether there is such a          ineffective assistance of counsel raised in the motion.”
  procedural rule that is applicable to the claim at issue and     Bowling II, 981 S.W.2d at 551.
  whether the petitioner did, in fact, fail to follow it.
  Second, the court must decide whether the state courts              There are two reasonable interpretations to which this
  actually enforced its procedural sanction. Third, the            statement is susceptible. The Kentucky Supreme Court may
  court must decide whether the state’s procedural                 have been relying on the procedural default. Its dismissal of
  forfeiture is an “adequate and independent” ground on            Bowling’s claims on the merits would then be considered an
  which the state can rely to foreclose review of a federal        alternative holding. In such a situation, we would consider
  constitutional claim. . . . And, fourth, the petitioner must     the claims in the struck motion procedurally defaulted. See
  demonstrate . . . that there was “cause” for him to neglect      Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) (stating that “a
  the procedural rule and that he was actually prejudiced          state court need not fear reaching the merits of a federal claim
  by the alleged constitutional error.                             in an alternative holding”); Coe v. Bell, 161 F.3d 320, 330
                                                                   (6th Cir. 1998). However, the Kentucky Supreme Court may
Greer v. Mitchell, 264 F.3d 663, 673 (6th Cir. 2001) (citations    have well been using the word “notwithstanding” to ignore
omitted) (citing, inter alia, Maupin v. Smith, 785 F.2d 135,       the issue of possible procedural default and consider the
138 (6th Cir. 1986)), cert. denied, 535 U.S. 940 (2002). At        claims on the merits. In such a case, Bowling’s claims would
issue here is the second prong of the Maupin test; Bowling         not be defaulted because the state court would not have been
questions whether the Kentucky Supreme Court actually              relying on the procedural bar in its disposition of the case.
enforced its procedural sanction. In this regard, the Supreme
Court has stated that “[t]he mere existence of a basis for a          We find both interpretations eminently plausible. The use
state procedural bar does not deprive [federal courts] of          of the word “notwithstanding” could suggest either that the
jurisdiction; the state court must actually have relied on the     Kentucky Supreme Court was enforcing the procedural
procedural bar as an independent basis for its disposition of      default or that it was waiving it. Moreover, the possibility
the case.” Caldwell v. Mississippi, 472 U.S. 320, 327 (1985);      that the Kentucky Supreme Court was in fact waiving the
see also Coleman, 501 U.S. at 735 (requiring that the last         default is amplified by the fact that it went on to consider
state court rendering a reasoned judgment on the matter            Bowling’s claims on the merits. See Harris, 489 U.S. at 266
“clearly and expressly” state that its judgment rests on such      n.13 (noting that “[w]hile it perhaps could be argued that this
a procedural bar for the doctrine of procedural default to         statement would have sufficed had the state court never
apply).                                                            reached the federal claim,” the fact that “the state court
                                                                   clearly went on to reject the federal claim on the merits”
  The language used by the Kentucky Supreme Court in its           makes it less clear that the state court actually relied on the
opinion reveals that it did not clearly rely on Bowling’s          procedural bar). Ultimately, the fact that both interpretations
procedural default to dismiss the claims raised in his             are sensible settles this issue in Bowling’s favor, for there
No. 01-5832                          Bowling v. Parker      13    14   Bowling v. Parker                           No. 01-5832

must be unambiguous state-court reliance on a procedural            The Supreme Court has held that the failure to give a
default for it to block our review. See Gall v. Parker, 231       lesser-included-offense instruction can violate due process.
F.3d 265, 321 (6th Cir. 2000), cert. denied, 533 U.S. 941         See Beck v. Alabama, 447 U.S. 625 (1980). In Beck, the
(2001).                                                           defendant and his accomplice broke into the house of an
                                                                  eighty-year-old man and tied him up. According to Beck, the
   We therefore proceed to the merits of Bowling’s claims.        accomplice struck the man and killed him. Beck consistently
His contentions of error fall into six general categories. He     maintained that he did not kill the victim and that he had
claims that he was denied proper jury instructions, his counsel   never intended for the murder to occur. The state charged
was constitutionally ineffective, he was improperly denied an     him with “robbery-intentional killing,” a capital crime. Id. at
evidentiary hearing, the jury in his case was constitutionally    628. Pursuant to the applicable state statute, the trial judge
invalid, the prosecutors acted inappropriately towards him at     was prohibited from instructing the jury on the lesser-
trial, and his death sentence was constitutionally                included offense of “felony-murder,” a non-capital crime.
disproportionate.                                                 The jury convicted Beck of intentional murder, and he was
                                                                  sentenced to death. The Supreme Court held that it is a denial
C. Denial of Proper Jury Instructions                             of due process for a jury to be deprived of the opportunity to
                                                                  consider the lesser-included offense of felony-murder when
  Bowling’s first claim for relief is his claim that he was       “the unavailability of a lesser included offense instruction
denied proper jury instructions in both the guilt and penalty     enhances the risk of an unwarranted conviction.” Id. at 638.
phases of his trial. Although Bowling’s claim that he was
entitled in the guilt phase to a jury instruction on extreme        In this case, manslaughter is a lesser-included offense of
emotional disturbance (“EED”) is the strongest claim he           murder under Kentucky law. See Bray v. Commonwealth, 68
brings in his habeas petition, we find it ultimately              S.W.3d 375, 383 (Ky. 2002) (analyzing whether a defendant
unpersuasive. We therefore dismiss Bowling’s claim that he        should have received an instruction on the “lesser included
was denied proper jury instructions.                              offense of first degree manslaughter” where he was convicted
                                                                  of murder, but claimed that he was extremely emotionally
  1. Instructions in the Guilt Phase                              disturbed at the time of the homicide); see also KY . REV .
                                                                  CODE ANN . § 507.030(b) (defining manslaughter as a lesser-
  Bowling claims that the trial court improperly failed to give   included offense of murder).
the jury a lesser-included-offense instruction in the guilt
phase. Bowling contends that the jury should have been              Nonetheless, while due process can require an instruction
given an instruction on extreme emotional disturbance; if the     on lesser offenses that are necessarily included in the greater
jury then had found extreme emotional disturbance, it would       offense, due process does not require an instruction on a
have convicted Bowling only of manslaughter (rather than          lesser-included offense if the evidence does not support such
murder). See KY . REV . CODE ANN . § 507.030(b) (defining         an instruction. Hopper v. Evans, 456 U.S. 605, 611 (1982).
manslaughter as an intentional killing “under circumstances       Instead, “a Beck instruction is only required when ‘there was
which do not constitute murder because [the defendant] acts       evidence which, if believed, could reasonably have led to a
under the influence of extreme emotional disturbance”).           verdict of guilt of a lesser offense,’ but not the greater.”
                                                                  Campbell v. Coyle, 260 F.3d 531, 541 (6th Cir. 2001)
                                                                  (quoting Hopper, 456 U.S. at 610), cert. denied, 535 U.S. 975
No. 01-5832                           Bowling v. Parker      15    16       Bowling v. Parker                            No. 01-5832

(2002). This constitutional requirement is virtually identical       viewpoint of a person in the defendant’s situation under
to the Kentucky requirement that an instruction be given             circumstances as defendant believed them to be.
when “‘a juror might entertain reasonable doubt as to the
defendant’s guilt of the greater offense, and yet believe          McClellan v. Commonwealth, 715 S.W.2d 464, 468-69 (Ky.
beyond reasonable doubt that the defendant is guilty of the        1986). Kentucky courts have explained that, to show EED,
lesser offense.’” Jacobs v. Commonwealth, 58 S.W.3d 435,           there must be a triggering event — a “sudden and
446 (Ky. 2001) (citation omitted). The Kentucky Supreme            uninterrupted” event that “triggers the explosion of violence
Court determined that the evidence at trial would not permit       on the part of the criminal defendant.”             Foster v.
a rational jury to find extreme emotional disturbance. See         Commonwealth, 827 S.W.2d 670, 678 (Ky. 1991) (holding
Bowling I, 873 S.W.2d at 179 (discussing this claim). Given        that a woman was not entitled to an EED instruction after she
the deference that we are required to give to the Kentucky         murdered five individuals without a recent aggravating
Supreme Court’s analysis of this question, we ask only             incident, despite the fact that the woman had suffered
whether the Kentucky Supreme Court was unreasonable in its         significant physical and emotional harm as a child and abused
conclusion that the evidence at trial would not permit a           drugs and alcohol). As a result, “extreme emotional
rational jury to find extreme emotional disturbance. See           disturbance is not established by evidence of insanity or
Campbell, 260 F.3d at 543 (noting that the question is             mental illness, but require [sic] a showing of some dramatic
“whether the state court’s application of [the Beck] rule to       event which creates a temporary emotional disturbance as
these facts was objectively unreasonable”).                        opposed to a more generalized mental derangement.”
                                                                   Stanford v. Commonwealth, 793 S.W.2d 112, 115 (Ky. 1990).
   To answer this question, however, we must discern the
meaning of the term, “extreme emotional disturbance.” This            Bowling claims that, under the facts of his case and the
is a question of state law. See Bennett v. Scroggy, 793 F.2d       definition of EED used above, an EED instruction was
772, 778 (6th Cir. 1986) (“A due process clause claim that         required. It is undisputed that Bowling’s car crashed into the
one is entitled to instructions on a lesser included offense can   Earleys’ car in the Earley Bird Cleaners’ parking lot and that
be resolved only by determining what the elements of those         the front right-hand side of Bowling’s car impacted the
offenses are. Hence, the reviewing court must look first to the    driver’s side of the Earleys’ car. Bowling argues that this
state’s law.”). Kentucky law, at the time of Bowling’s case,       accident was a triggering event that enraged Bowling,
had explained EED as follows:                                      overthrew his judgment, and caused him to get out of his car
                                                                   and kill the Earleys. This theory, Bowling argues, would
  Extreme emotional disturbance is a temporary state of            explain the otherwise motiveless killing of the Earleys and
  mind so enraged, inflamed, or disturbed as to overcome           would also explain why Bowling did not simply get out of his
  one’s judgment, and to cause one to act uncontrollably           car and shoot the Earleys rather than damaging his own car
  from the impelling force of the extreme emotional                first.2
  disturbance rather than from evil or malicious purposes.
  It is not a mental disease in itself, and an enraged,
  inflamed, or disturbed emotional state does not constitute
  an extreme emotional disturbance unless there is a                    2
  reasonable explanation or excuse therefor, the                         W e note p arenthetically that this argument was adopted by two
                                                                   justices of the Kentucky Supreme Court on Bowling’s direct ap peal.
  reasonableness of which is to be determined from the             Bowling I, 873 S.W .2d at 182-85 (Leibson, J., dissenting).
No. 01-5832                                    Bowling v. Parker           17     18   Bowling v. Parker                           No. 01-5832

  Bowling acknowledges that he has submitted no evidence                          only impacted in the front right-hand side, it is clear that
supporting his argument that an EED instruction was                               Bowling would have been able to see the impending collision.
necessary.3 He argues merely that we should infer from the                        This suggests that Bowling either intentionally caused the
very fact that a car accident preceded the shootings that the                     accident or at least had knowledge that a collision was
car accident must have triggered an uncontrollable rage that                      impending before it happened.
caused the shootings.
                                                                                     These facts make Bowling’s claim of EED grossly
   The facts of this case do not support such an inference.                       implausible. Bowling has introduced no evidence, such as
Bowling’s accident involved a parked car in a parking lot far                     that of a accident-reconstruction specialist, to support his
away from the street. It resulted in no physical injury to                        claim. He simply asks us to infer that the accident so enraged
Bowling and only minor damage to both cars. Bowling’s car                         him as to overcome his judgment and cause him to act
remained drivable. In fact, his car only suffered light damage                    uncontrollably from the accident’s impelling force. Even if
to its front right-hand side; according to expert testimony and                   this were the case, however, the extreme emotional
photographic evidence, only the right front fender and its                        disturbance inquiry is not merely a subjective one. It is also,
parking light assembly were damaged. As Bowling’s car was                         in part, an objective one. Therefore, even if Bowling were to
                                                                                  show that he was emotionally enraged within the meaning of
                                                                                  Kentucky law, Bowling would still not be able to show a
    3
       Under current Kentucky law, Bowling has the burden of proving
                                                                                  “reasonable explanation or excuse” for his rage. McClellan,
EED; the governm ent is not charged with proving its absence. See                 715 S.W.2d at 469. We must agree with the Kentucky
Wellman v. Comm onw ealth, 694 S.W.2d 696, 697 (Ky. 1985). Bo wling               Supreme Court that this type of minor car accident in itself
argues in his brief that the government should have had the burden of             does not create a reasonable explanation or excuse for a
proving an absence of EED at trial. Bo wling cites a recent Sixth C ircuit        double homicide.
case that granted habeas relief on such grounds. See Ga ll v Parker, 231
F.3d 265, 288 -91 (6th Cir. 2000) (holding that the Kentucky Supreme
Court erroneously put the burden on the defendant to show EED when it
                                                                                     Context also suggests that it was not the accident that
was actually the government’s obligation to prove a lack of EED ), cert.          caused the shootings. Testimony at trial established that
denied, 533 U .S. 941 (2001 ). The salient difference between this case and       Bowling was seriously depressed and under the influence of
Ga ll, however, is that the trial and appeal in Ga ll took place in 198 0 while   alcohol in the days preceding the shooting. Bowling was
the facts of this case occurred in 1 991 . In the interv ening p eriod — in       obsessed with death, made frequent morbid statements like
1985, more specifically — the Kentucky Supreme Court explicitly shifted
the burd en of p roof on this issue to the defendant. See Wellman, 694
                                                                                  “my time has run out,” and told his mother, if he disappeared,
S.W.2d at 697 (overruling “those portions of [several cases] which declare        to look for him on family property in Powell County. J.A. at
that the absence of extreme emotional distress is an essential element of         4558 (Testimony of Iva Lee Bowling). Bowling’s state of
the crime of murder and require the Commonwealth to prove such                    mind might also be reflected in the fact that he purchased a
absence”). As a result, under Wellman, it was proper for the trial co urt to      gun a few days before the shootings and carried it with him
put the burden of proving EED on Bow ling.
     Bowling argues that the Wellman decision violated due process and
                                                                                  the morning of the shootings. Bowling suggests that these
separation-of-powers principles by retro actively enlarging the scope of a        comments and actions support his claim that he was
criminal statute. We, however, did not find the retroactivity argument            extremely emotionally disturbed at the time of the shootings.
persuasive even in Wellman’s own habeas petition, Wellman v. Rees, No.            In reality, however, these comments and actions undercut his
86-5988, 1987 WL 38211 (6th C ir. June 1, 19 87), cert. denied, 484 U.S.          claim — for in order for Bowling to be entitled to an EED
968 (1987), and we do not find it persuasive now. W e therefore dism iss
this contention of error.
                                                                                  instruction, Kentucky law requires that the accident itself be
No. 01-5832                                   Bowling v. Parker           19     20   Bowling v. Parker                            No. 01-5832

the “dramatic event which creates a temporary emotional                          California, 494 U.S. 370 (1990), where the Court held that a
disturbance as opposed to a more generalized mental                              catch-all instruction on mitigation was constitutionally
derangement.” Stanford, 793 S.W.2d at 115. All of                                sufficient unless the instructions as a whole created “a
Bowling’s evidence suggests general mental illness, not a                        reasonable likelihood that the jury has applied the challenged
temporary and extreme emotional disturbance stemming from                        instruction in a way that prevents the consideration of
the accident. See McClellan, 715 S.W.2d at 468 (noting that                      constitutionally relevant evidence.” Id. at 380; see also
“the condition must be a temporary disturbance of the                            Buchanan v. Angelone, 522 U.S. 269, 276 (1998). An
emotions as opposed to mental derangement per se”). As a                         examination of the actual jury instructions reveals that there
result, we cannot say that the Kentucky Supreme Court’s                          was no realistic chance of confusion.
decision that an EED instruction was not necessary was
objectively unreasonable.4                                                          The jury instructions correctly explain that the defendant is
                                                                                 presumed to be innocent of the aggravating circumstance, and
  2. Instructions in the Penalty Phase                                           that the aggravating circumstance must be proved by the
                                                                                 prosecution beyond a reasonable doubt. For each crime, the
   Bowling’s next claim is that he should have been granted                      instructions explain that the jury need not impose the death
a specific mitigating instruction on EED, mental illness, and                    penalty simply because the aggravating circumstance is
intoxication in the penalty phase. Bowling complains that he                     proved beyond a reasonable doubt. They explain that the
was only given a general instruction on mitigation, which                        death penalty can be imposed despite the existence of a
allowed the jury to consider any evidence they found                             mitigating circumstance, but only if the aggravating
mitigating, but did not specifically instruct them to take into                  circumstances outweigh the mitigating ones.               Most
account evidence of EED, mental illness, or intoxication. On                     importantly, the jury instructions explicitly call upon the jury
appeal, the Kentucky Supreme Court upheld the general                            to consider the mitigating evidence generally:
mitigating instruction, stating that Bowling was not
constitutionally entitled to anything more. Bowling I, 873                         [Y]ou shall consider such mitigating or extenuating facts
S.W.2d at 180.                                                                     and circumstances as have been presented to you in the
                                                                                   evidence including, but not limited to, such of the
  The Kentucky Supreme Court is correct. The United States                         following as you may believe from the evidence; (a) that
Supreme Court rejected Bowling’s claim in Boyde v.                                 the Defendant has no significant history of prior criminal
                                                                                   activity. You shall consider any other facts and
                                                                                   circumstances which you consider to be mitigating or
    4
       Bowling also makes a claim that the denial of an EED instruction in         extenuating even though they are not listed in this
the guilt phase was improper under state law. Normally, habeas                     instruction.
petitioners cannot o btain relief in federal court on the basis that the state
courts did not follow state law; there generally must be some federal            J.A. at 5106-07 (italics added). The instruction clearly
constitutional error. See Estelle v. McG uire, 502 U.S. 62, 67-68 (199 1);
Hutchison v. Bell, 303 F.3d 720, 731 (6th Cir. 2002) (“State-law trial
                                                                                 allows, and in fact commands, the jurors to consider evidence
errors will not warrant habeas relief unless the ‘error rises to the level of    that they find mitigating. There is no reason to assume that
depriving the defendant of fundamental fairness in the trial process.’”)         the jury did not consider the evidence of EED, mental illness,
(citation omitted). To the extent that this violation of state law was so        and intoxication as potential mitigating evidence. Cf. Payton
flagrant as to amount to a denial of due process, we have already                v. Woodford, 299 F.3d 815, 818-19 (9th Cir. 2002) (granting
considered the claim and rejected it in our Beck discussion above.
No. 01-5832                                     Bowling v. Parker            21     22       Bowling v. Parker                             No. 01-5832

habeas relief under AEDPA to a defendant whose evidence of                          a potentially exculpatory witness, and (6) to impeach
a post-crime conversion and good works was likely not                               effectively the government witnesses.
considered by the jury because the catch-all provision of the
instructions only allowed the jury to consider circumstances                          In order to succeed on any of these claims of ineffective
that “extenuate[d] the gravity of the crime”). The mere fact                        assistance of counsel, Bowling must show two things. First,
that the jury was not given a particularized instruction on                         he must show that his counsel’s performance was
EED or mental illness, as opposed to a more generalized one,                        constitutionally deficient, and second, he must show that he
is simply not a constitutional wrong.5                                              was prejudiced by his counsel’s errors. Id. at 687.

D. Ineffective Assistance of Counsel                                                  In order to prove his counsel constitutionally deficient,
                                                                                    Bowling must show that his counsel’s performance fell below
   Bowling’s next set of claims for relief arises from his                          an objective standard of reasonableness under prevailing
allegation that he was provided with ineffective counsel under                      professional norms. Id. at 687-88. Bowling must overcome
Strickland v. Washington, 466 U.S. 668 (1984). Bowling                              the “presumption that, under the circumstances, the
alleges that his counsel was constitutionally defective in six                      challenged action might be considered sound trial strategy.”
principal ways. Specifically, he asserts that counsel failed                        Bell v. Cone, 535 U.S. 685, 698 (2002) (quotations omitted).
(1) to investigate the victims’ drug activities, which would                        Having proved his counsel deficient, Bowling must then show
have led them to another viable suspect, Donald Adams,                              that “there is a reasonable probability that, but for counsel’s
(2) to consult with Bowling before and during trial, (3) to                         unprofessional errors, the result of the proceeding would have
present evidence that would have justified an instruction on                        been different.” Strickland, 466 U.S. at 694. A “reasonable
EED and mitigation evidence more generally, (4) to prepare                          probability” in this context is a “probability sufficient to
adequately before trial because of a pending criminal                               undermine confidence in the outcome.” Id.6
indictment against one of Bowling’s attorneys, (5) to contact
                                                                                      1. Failing to Investigate the Victims
     5                                                                                 Bowling’s first claim of ineffective assistance, which was
       In addition to arguing that the denial of a specific instruction in the
penalty phase violates federal law, Bowling also claims that this denial            discussed extensively at oral argument though not given much
violated a state statute that requires judges to give particularized                attention in the parties’ appellate briefs, is that his counsel did
instructions on mitigating factors.            See K Y . R EV . C O D E . A N N .   not properly investigate the Earleys’ involvement with drugs.
§ 532.025 (2) (“In all cases of offenses for which the death penalty may
be authorized, the judge shall consid er, or he shall include in his
                                                                                    If his counsel had performed a proper investigation, Bowling
instructions to the jury for it to consider, any mitigating circumstances or        argues, they would have discovered that Eddie Earley had
aggravating circumstances o therwise authorized by law and any of the               informed Lexington police of the drug activities of Donald
following statutory aggravating or mitigating circumstances which may               Adams and that Donald Adams was the one who presumably
be supported by the evidence.”). Bowling argues that he did present                 shot the Earleys.
sufficient evidence to merit a specific instruction on these facts und er state
law. W hether or not we would agree with him on this point, Bowling
ignores the fact that this co urt gene rally does not review alleged violations
of state law in federal habeas proceedings. See Estelle, 502 U.S. at 67-68.              6
W e merely hold here that the state trial court’s determination that Bowling             W e note at the outset that the Kentucky Supreme Court addressed
was not entitled to instructions on these factors is not so fundam entally          and rejected all of Bowling’s claims of ineffective assistance that we
unfair as to violate due p rocess.                                                  consider here. Bowling II, 981 S.W.2d at 549-52.
No. 01-5832                         Bowling v. Parker     23    24    Bowling v. Parker                            No. 01-5832

   To support his claim, Bowling points to a memorandum         deficient for not investigating this theory. In light of the
written by his attorneys roughly six weeks before trial. This   tenuous connection between Adams and the murder,
memorandum lists twenty-seven tasks that counsel said they      counsel’s decision not to investigate further does not seem
needed to accomplish before trial. One of these, task number    unreasonable. In fact, the memorandum that Bowling uses to
twenty one, is an interview with Larry Walsh, who was the       show that his attorneys were deficient seems to support the
chief of Lexington police at the time. The memorandum           opposite conclusion.        The memorandum reveals a
states that they should interview Walsh because he was          methodically organized defense team, and the mere fact that
“friends with the victims” and because Eddie Earley             Bowling’s attorneys failed to accomplish all of the tasks they
“provided information concerning Donald Adam[’s] drug           set out for themselves may be an indication of their early
activity.” J.A. at 1237. We note that task number twenty is     ambitiousness rather than their later negligence.
counsel’s statement that they should interview Donald
Adams, who “supposedly had [an] affair with Tina, and sold        Moreover, Bowling has put forth no evidence of prejudice.
dope to Eddie.” J.A. at 1237.                                   Bowling has not shown that anything inculpatory about
                                                                Adams would have come out of an interview with the police
   Counsel never interviewed Walsh. Bowling claims that if      chief. Bowling suggests that his attorneys would have at least
Walsh had been interviewed, Bowling’s counsel would have        discovered that Eddie Earley had previously informed on
found that Donald Adams was the one who killed the Earleys,     Donald Adams and that Donald Adams may have slept with
or, at the very least, Bowling’s counsel would have been able   Tina Earley.     Bowling’s attorneys, however, already
to create reasonable doubt by arguing that Adams committed      suspected this. Bowling has put forth no evidence going
the murders.                                                    beyond these facts; Bowling has not shown that Donald
                                                                Adams was in any way actually connected to the Earleys’
  We must note that Bowling’s theory that Donald Adams          murders. Bowling has therefore not shown that the Kentucky
was involved in the murders is farfetched. Though Bowling       Supreme Court’s decision denying relief on this claim was
never really explains how Donald Adams could have been the      unreasonable. Bowling II, 981 S.W.2d at 550.
murderer under the facts adduced in the case, he seems to
intimate that Adams must have stolen Bowling’s car,               2. Failing to Consult with Bowling
committed the murders, and then deposited Bowling’s car on
the Bowling family’s property. Among the more obvious             As explained in Part I.B, supra, Bowling first claimed
problems with Bowling’s theory is the fact that Bowling does    ineffective assistance in the trial itself. Between the guilt and
not explain why Adams would choose to frame Bowling for         penalty phases, Bowling sought to have his counsel removed
the murders, how Adams stole Bowling’s car, how Adams           because Bowling felt they were unprepared. Bowling claimed
knew where Bowling’s family property in rural Powell            that he did not have ample chance to explain the facts of the
County was located, and — most importantly — how Jack           case to his attorneys because he had “not spent an hour, total,
Mullins and Jack Strange could have both identified Bowling     with any of them from day one.” J.A. at 4921 (Trial Tr.).
near the Powell County property if he had not been there.       The few times that they did talk, Bowling claims, he was
                                                                interrupted and ignored. While Bowling’s attorneys did not
 The implausibility of Bowling’s thesis that Donald Adams       put on a single witness, Bowling claimed that there were
was in fact the killer makes it virtually impossible for        numerous witnesses who could have been called.
Bowling to prove that his counsel was constitutionally
No. 01-5832                            Bowling v. Parker       25    26     Bowling v. Parker                         No. 01-5832

  The Kentucky Supreme Court quickly rejected this claim             Conviction Relief) (italics added). Moreover, the one-hour
on direct appeal, stating that “[t]he trial judge determined that    figure seems implausible, given that Bowling’s trial lawyers
the trial strategy used by Bowling’s counsel had a better            could not have found the witnesses who testified at the
chance of success than any of which the trial judge could            penalty phase (which included Bowling’s coworkers and jail
think in light of the strong evidence of guilt presented by the      supervisors) or discovered the rest of their submitted evidence
prosecution.” Bowling I, 873 S.W.2d at 180.                          without Bowling’s aid. It also seems strange, for example,
                                                                     that Bowling’s lawyers would have Bowling attend a
  This claim of ineffective assistance of counsel fails. First,      psychological examination with a psychologist for nine hours
it is not clear that Bowling has shown constitutional                and meet with him for only one.
deficiency. The Supreme Court has emphasized that the
focus of the Sixth Amendment is not on “the accused’s                   Even, however, if the one-hour total consultation figure is
relationship with his lawyer,” but on “the adversarial               accurate and Bowling has made out deficiency, Bowling has
process.” Wheat v. United States, 486 U.S. 153, 159 (1988)           not shown the prejudice that his Strickland argument requires.
(quotation omitted); see also Dick v. Scroggy, 882 F.2d 192,         As noted by the federal district court, Bowling has not shown
197 (6th Cir. 1989) (holding, in a non-capital case, that            how additional time spent with counsel could have altered the
Strickland was not violated when the defendant’s attorney did        outcome of his trial. Bowling claimed in the colloquy with
not interview the defendant until the night before trial, and        the state trial judge that numerous witnesses could have been
then for only thirty to forty-five minutes). Yet, the one-hour       called, but Bowling never specifically named anyone and
total consultation time that Bowling cites is alarming, and          stated in front of the trial judge that he would not testify
courts have granted habeas relief under such conditions. See,        himself. Bowling has not even alleged factually how
e.g., Harris By and Through Ramseyer v. Wood, 64 F.3d                additional time with his counsel would have aided his case or
1432, 1436, 1438-39 (9th Cir. 1995) (holding that Strickland         helped counsel obtain names of people to testify on his
was violated when the defendant’s counsel, among many                behalf. Bowling cannot therefore show prejudice; the mere
other deficiencies, met with his client in a capital case for less   fact that counsel spent little time with him is not enough
than two hours).                                                     under Strickland, without evidence of prejudice or other
                                                                     defects. As a result, Bowling has not shown that the
  We are concerned, however, by the fact that Bowling has            Kentucky Supreme Court’s decision denying him relief on
done nothing to substantiate this bare allegation. Bowling has       this ground is unreasonable.
not even submitted a personal affidavit verifying the one-hour
total consultation figure. Bowling’s trial counsel signed              3.    Failing to Present EED and Other Mitigating
affidavits stating their general strategy and admitting that they            Evidence
never interviewed Chief Walsh of the Police Department.
Though they easily could have done so, these affidavits never          Bowling’s next claim is that his counsel was ineffective in
mention the one-hour total consultation figure. Instead of           their efforts to present evidence of an EED defense in the
providing that sort of substantive evidence, Bowling simply          guilt phase and to present general evidence of mitigation in
raises this claim in his briefs, often making very limited           the penalty phase. Bowling claims that his lawyers did not
claims like, “Lead counsel at trial appears to have visited Mr.      present evidence that could have garnered Bowling a
Bowling for a mere hour, cumulative,” without any                    mitigating instruction under KY . REV . CODE ANN .
supporting evidence. J.A. at 1843 (Motion for Post-                  § 532.025(2)(b)(2) and (7), which allow for mitigation upon
No. 01-5832                           Bowling v. Parker      27    28    Bowling v. Parker                             No. 01-5832

a showing of “extreme mental or emotional disturbance” or a          Assuming that we — I mean, we are going to rest. We
lack of capacity “to appreciate the criminality of his conduct       were — I didn’t mean to seem like we were stringing
[or to conform the conduct] to the requirements of law . . . as      him along. I do want them to know that we were
a result of mental illness or retardation or intoxication.”          considering putting Dr. Veal [sic] on this afternoon. We
                                                                     needed to talk to him about some additional information
   Bowling makes several arguments. He argues that his               that we had. He did not get back to us. On further
lawyers failed to understand the Kentucky requirements of            reflection, we decided to rest.
EED. He argues that his lawyers hastily prepared their expert
Dr. Beal and that they should have presented him in the            J.A. at 4757. In isolation, this comment suggests that his
penalty phase. Bowling alleges that his lawyers did not put        attorneys may have chosen not to call Beal as a witness
on Dr. Beal because Beal did not return a phone call.              because they could not find him. Even if this is true,
Bowling also argues that counsel in the penalty phase should       however, it was better for Bowling that his attorneys did not
have submitted evidence that Bowling had a growth removed          call Dr. Beal to testify, as it is clear that Beal’s testimony was
from his head at age seven, sustained serious head injuries,       not going to help Bowling establish extreme emotional
had a violent alcoholic father, and suffered a history of          disturbance. Beal’s report states:
alcohol abuse and blackouts. The Kentucky Supreme Court
rejected all of these assorted claims. Bowling II, 981 S.W.2d        There is no evidence that the mental disorders
at 550.                                                              substantially impaired this man[’]s behavior with respect
                                                                     to the alleged actions, such that he lacked substantial
  Some of Bowling’s claims clearly have no merit. Bowling            capacity to appreciate the criminality of his conduct, or
claims that Beal’s analysis was a hasty last-minute effort, but      that he was unable to conform his conduct to the
Beal spent nine hours with Bowling, interviewed several              requirements of the law. In my opinion Mr. Bowling
members of Bowling’s family, examined medical and family             was legally sane at the time of the offenses for which he
records, and wrote a written report. Bowling argues that his         is charged.
lawyers did not understand the Kentucky requirements of
EED, but Bowling has offered no evidence to support this           J.A. at 5320 (Beal Report). The report contains other
claim, and our review of the transcript suggests otherwise.        damaging observations as well. In his psychological
                                                                   assessment of Bowling, Beal reported Bowling as having a
   Bowling’s chief objection seems to be a challenge to his        tendency to be “angry, irritable, resentful” and “asocial,” and
counsel’s decision not to put Dr. Beal on the stand. Many          said that his offenses could be expected to be “vicious and
sensible reasons could justify this decision. First, if Beal had   assaultative . . . senseless, poorly planned, and poorly
testified to Bowling’s mental deterioration before the crime,      executed.” J.A. at 5328. Moreover, it is clear that Dr. Beal
that might have implicitly suggested to the jury that Bowling      did not think Bowling was entitled to an EED instruction.
was the murderer. The decision not to call Beal as a witness       One of Bowling’s attorneys wrote a memorandum describing
may have been a necessary consequence of Bowling’s                 his conversation with Dr. Beal, during which Dr. Beal
insistence on not abandoning his claim of innocence in the         suggested that “Bowling was in a frame of enraged anger
guilt phase. Bowling claims, however, that his attorneys were      prior to the murders, and we discussed that this did not
simply lazy, pointing to the following statement that his          appear to be a heat of passion kind of thing, but rather
attorneys made in deciding to rest his case:                       something that had been developing several days earlier.”
No. 01-5832                           Bowling v. Parker      29    30   Bowling v. Parker                           No. 01-5832

J.A. at 5335 (Att’y Memorandum) (italics added). This              alcoholic father, and a history of alcohol abuse and blackouts.
would be very damaging information, for as we noted, supra         As an initial matter, Bowling did present some of this
at Part II.C, in our discussion of extreme emotional               information. His sister and mother testified to his drinking,
disturbance, it would, in fact, destroy Bowling’s request for      the prevalence of mental illness in the family, and his strange
an EED instruction under Kentucky law. See McClellan, 715          behavior during the weeks before the shooting. Bowling has
S.W.2d at 468.                                                     not submitted evidence that he suffered from a violent
                                                                   alcoholic father. Bowling’s evidence that he had a growth
   Because Beal’s testimony was not going to help Bowling,         removed from his head and a serious head injury comes from
it was certainly reasonable (and perhaps ultimately better for     an initial doctor’s report noting the head growth and the fact
Bowling) that Bowling’s counsel chose to rely on the               that Bowling was in a boating accident as a child that left him
testimony of their favorable lay witnesses, Bowling’s sister       unconscious. Beal’s report, however, considered this earlier
and mother, who testified to his deteriorating state of mind, as   report, and did not think the head growth and childhood
well as on the state’s mental health expert, Dr. Smith, whose      injury worthy of mention.
report seems more helpful to the defense than the one of Dr.
Beal. See Bowling II, 981 S.W.2d at 550 (noting that the              This evidence, though not presented, does not seem to have
State’s profile “aided Appellant in his case more than his own     much importance. Bowling’s counsel submitted these facts
psychologist’s profile”). Dr. Smith, in contrast to Dr. Beal,      to their expert, who seemed to view them as trivial and not
believed that it was “unlikely but not impossible that Mr.         worth pursing. It was therefore reasonable for counsel to
Bowling, as a result of mental disease or defect, lacked           make the strategic decision to pursue other avenues of relief
substantial ability to comprehend the criminality of his           for Bowling by stressing his drinking, mood swings, and
behavior or to conform his behavior to the requirements of         increasing depression. Moreover, Bowling cannot show any
law.” J.A. at 5186-87 (Smith Report). Smith’s report also          prejudice from this alleged deficiency, because it is simply
states that Bowling “suffers from Alcohol Abuse” and that at       unrealistic to say that knowledge of these two minor
the time of the accident Bowling either “suffered from a           childhood incidents, which have no apparent connection to
major psychiatric disorder or . . . was suffering an ordinary      the present, could have changed anything. Bowling has not
reaction to the loss of his wife occurring in an alcoholic         shown deficiency or prejudice as those terms have been used
individual with this [Antisocial and Borderline] personality       in other binding precedent. Cf. Terry Williams v. Taylor, 529
disorder.” J.A. at 5186.                                           U.S. 362, 395-98 (2000) (finding ineffective assistance when
                                                                   counsel failed to introduce evidence that the defendant was
   Since Beal’s testimony was not going to aid Bowling,            borderline mentally retarded and was severely and repeatedly
Bowling cannot show ineffective assistance of counsel for the      beaten by his father); Coleman v. Mitchell, 268 F.3d 417,
failure to present it. Even if Bowling is right and his            450-53 (6th Cir. 2001) (finding ineffective assistance when
attorneys were not making a tactical error but were being          counsel failed to report that the defendant was borderline
deficient in failing to present Beal, Bowling cannot show          mentally retarded and sexually abused by his grandmother
prejudice.                                                         who involved him in her voodoo and group sex practices),
                                                                   cert. denied, 535 U.S. 1031 (2002); Carter v. Bell, 218 F.3d
  Finally, Bowling argues that his counsel could and should        581, 593-94, 600 (6th Cir. 2000) (finding ineffective
have submitted evidence that Bowling had a growth removed          assistance when counsel failed to introduce medical records
from his head at age seven, serious head injuries, a violent       showing multiple childhood and adult head injuries from
No. 01-5832                            Bowling v. Parker      31    32   Bowling v. Parker                            No. 01-5832

accidents and fights, and physician recommendations for             has not even suggested anything that Baldani failed to ask.
psychiatric hospitalization); Glenn v. Tate, 71 F.3d 1204,          This claim therefore fails.
1208, 1211 (6th Cir. 1995) (finding ineffective assistance
when counsel failed to introduce evidence showing that the            5. Failing to Investigate the Message With the Police
defendant sustained organic brain damage before he was born
and was mentally retarded as a result), cert. denied, 519 U.S.         Bowling also argues that a message left within the police
910 (1996).                                                         department long before the trial took place suggests that there
                                                                    may be another witness to the crime. The message is from an
  4. Failing to Prepare Because of the Indictment                   officer who had a friend whose boyfriend was a witness to the
                                                                    accident. The message reports only that the “incident occured
   Bowling next claims that his attorney Summers was                [sic] over a fender bender type accident.” J.A. at 1779.
unprepared because Summers was told on the first day of trial
that he was being indicted. Bowling points to an affidavit            Bowling contends that his counsel was ineffective for not
filed by another of his trial attorneys, Baldani, who stated that   taking steps to investigate who sent the message. Even
Summers was “extremely upset” and asked Baldani to cross-           assuming that Bowling could show his counsel was deficient
examine the investigating officer, Detective Henderson. J.A.        for failing to do so, Bowling cannot prove prejudice.
at 1243 (Baldani Aff.).                                             Bowling argues that if his counsel had been able to find this
                                                                    witness, then the witness could have rebutted the
  In Bowling’s post-conviction appeal, the Kentucky                 prosecution’s theory that Bowling had intentionally rammed
Supreme Court analyzed this claim and stated that “[w]ith no        the car, which would have entitled Bowling to an instruction
evidence that counsel’s indictment had any negative                 on EED. Bowling, however, has no evidence that the witness
implications on Appellant’s trial, we cannot conclude that          would testify that the incident was accidental or that an
Appellant was denied effective counsel in this respect.”            accidental collision would have been sufficient to warrant an
Bowling II, 981 S.W.2d at 550.                                      instruction on EED. In fact, it seems likely that the witness
                                                                    would have hurt Bowling’s case. The only thing known
  The Kentucky Supreme Court is correct. Bowling has not            about the witness is that she described the accident preceding
even alleged that the performance of his defense team was           the shootings as a fender bender. This tends to suggest that
hampered when Baldani had to take over for Summers.                 the accident was an extremely minor one, which would
Neither Baldani in his affidavit nor Bowling in his brief           contradict Bowling’s claim that the accident was so jarring as
makes any claim that Summers would have done a better job           to make him lose control over his actions and shoot the
than Baldani did. On direct examination, Detective                  Earleys. Moreover, as the Kentucky Supreme Court stressed,
Henderson related the events surrounding Bowling’s arrest in        “[i]t was not the lack of evidence pertaining to the collision,
Knoxville, told of retrieving Bowling’s personal effects, and       but rather the lack of evidence showing the effect the collision
testified about interviewing the witnesses placing Bowling on       had upon Appellant that precluded the EED instruction.”
the road near where his car was discovered on the evening of        Bowling II, 981 S.W.2d at 549. As a result, this claim of error
the murder. On cross-examination, Baldani got Henderson to          also fails.
admit that none of the personal effects had blood on them and
that the car itself did not have blood on it either. No part of
Baldani’s cross-examination seems substandard and Bowling
No. 01-5832                                Bowling v. Parker         33     34       Bowling v. Parker                                  No. 01-5832

  6. Failing to Impeach the Prosecution’s Witnesses                         Maryland, 373 U.S. 83 (1963). Specifically, Bowling wants
                                                                            to investigate whether the prosecution had any internal
   Bowling’s last claim of ineffective assistance of counsel is             documents linking the Earleys to Donald Adams (and thus
that his counsel inadequately cross-examined Clay Brackett.7                Donald Adams to the crime itself), and whether Bowling’s
Bowling argues that an adequate cross-examination of                        counsel was defective for not further investigating Adams.8
Brackett, who sold Bowling the murder weapon, would have                    Bowling also seeks an evidentiary hearing to establish
shown that he testified pursuant to a covert deal struck with               whether his counsel was ineffective for failing to investigate
police who agreed not to pursue him for failing to register his             a potential deal the government made with Clay Brackett.
firearms. The Kentucky Supreme Court rejected this claim as                 Bowling was never granted any post-conviction evidentiary
well. Bowling II, 981 S.W.2d at 550.                                        hearing by the Kentucky state courts, but requested an
                                                                            evidentiary hearing in the direct appeal and post-conviction
  Bowling, however, has put forth no evidence of an
agreement between Brackett and the government. Without
any evidence supporting Bowling’s claim, we cannot say that                      8
                                                                                  Although Bowling raises this Brady claim as a part of his general
the Kentucky Supreme Court’s decision to deny relief on                     request for an evidentiary hearing, see Appellant Br. at 51-54; Reply Br.
these grounds was improper, let alone unreasonable.                         at 16-17, Bo wling does not discuss it outside of this context. Construing
                                                                            Bo wling’s appellate briefs generously, we will consider this part of
E. Evidentiary Hearing                                                      Bo wling’s petition as stating a Brady claim as well as a claim that an
                                                                            evidentiary hearing sho uld be gran ted on this Brady issue.
                                                                                 W e reject the Brady claim. First, we note that this claim is
  Bowling next claims that the district court erred by denying              procedurally defaulted. Bowling raised three Brady issues in the federal
him a federal evidentiary hearing in conjunction with his                   district court. He claimed that the prosecution did not disclose
habeas petition. Bowling seeks an evidentiary hearing to                    exculpatory notes on the results of a photo lineup, documents establishing
investigate one of his Brady claims and a few of his                        the extramarital affairs of Tina Earley and drug use by both Earleys, and
ineffective assistance of counsel claims. See Brady v.                      a deal with Clay Brackett. See Bow ling III, 138 F. Supp. 2d at 879-885;
                                                                            J.A. at 109-12 (Pet. Br. in Dist. Ct.). He did not raise there the Brady
                                                                            claim he alludes to here: whether “[t]he prose cution failed to disclose
    7
                                                                            evidence regarding D onald A dams’ prosecution for drug charges, his
      In his brief to this court, Bo wling raise s for the first time the   involvement in a drug ring, and the victims’ involvem ent with the police.”
possibility that his counsel was also ineffective for failing properly to   Appellant Br. at 53. Moreover, this claim was not presented to the
cross-examine Detective H enderson . This claim was never presented to      Kentucky Supreme Co urt. For these reasons Bo wling’s claim is
the Kentucky S upreme C ourt an d was not even presented to the district    defaulted.
court below. It is therefore defaulted.                                          Even if this claim were properly presented to the federal district court
     In any eve nt, we ho ld this claim has no merit. Bowling argues that   and the Kentuck y Supreme Court, we would deny the claim on the merits.
an adequate cross-examination of Henderson would have revealed that the     Under Brady v. Maryland, 373 U.S. 83 (19 63), a prosecutor who
prosecution had no explanation for why Bo wling comm itted the murders.     suppresses evidence that is favorable to the defendant and “material either
Bowling argues that his attorneys inappropriately chose not to ask          to guilt or to punishment” violates due pro cess. Id. at 87; see also United
Detective Henderson about whether Bowling knew the Ea rleys or not,         States v. Bagley, 473 U.S. 667, 682 (1985) (explaining that materiality
after being warned by the judge that this would open the door to hostile    exists when “there is a reasonable probability that, had the evidence been
evidence and after consulting with B owling himself. Bowling gives no       disclosed to the defense, the result of the proceeding would have been
reason to think this was an unreasonable decision , and even if it was,     different”). In the present case, however, Bowling has not put forth any
Bowling does not explain how it could have prejudiced his case, as the      evidence to show that the prosecution improperly suppressed information
defense repeatedly stated throughout trial that there was no apparent       about Do nald A dam s or that such a suppression would be material. W e
motive.                                                                     therefore reject Bowling’s Brady claim.
No. 01-5832                            Bowling v. Parker       35    36       Bowling v. Parker                                No. 01-5832

proceedings. We conclude that the district court did not err         F.3d 442, 460 (6th Cir. 2001) (citation omitted), cert. denied,
in denying Bowling an evidentiary hearing.                           123 S. Ct. 136 (2002).
  The first hurdle that Bowling must jump is 28 U.S.C.                  Bowling cannot show that the district court abused its
§ 2254(e)(2), which prevents federal courts from granting            discretion in denying him an evidentiary hearing. Bowling’s
evidentiary hearings to petitioners who “fail[] to develop the       claims that Donald Adams was the one who murdered the
factual basis of a claim in State court proceedings.” The            victims and that Clay Brackett had a deal with the
Supreme Court has explained that “a failure to develop the           government do not amount to anything more than conclusory
factual basis of a claim is not established unless there is lack     allegations. At oral argument, Bowling’s counsel argued that
of diligence, or some greater fault, attributable to the prisoner    Bowling could not make more than bald assertions precisely
or the prisoner’s counsel.” Michael Williams v. Taylor, 529          because he had not had an evidentiary hearing. This circular
U.S. 420, 432 (2000). This court has noted that “a finding of        logic, however, would entitle every habeas defendant to an
diligence would ‘depend[] upon whether the prisoner made a           evidentiary hearing on any issue. Without some evidence in
reasonable attempt, in light of the information available at the     support of Bowling’s implausible theory of the case, which is
time, to investigate and pursue claims in state court.’”             analyzed above in our discussion of Bowling’s ineffective
Sawyer v. Hofbauer, 299 F.3d 605, 610 (6th Cir. 2002) (citing        assistance of counsel claims, we cannot say that the district
Williams, 529 U.S. at 435).                                          court’s decision to deny an evidentiary hearing was an abuse
                                                                     of discretion.9
   Bowling has met his burden under 28 U.S.C. § 2254(e)(2).
Bowling repeatedly sought an evidentiary hearing in state            F. Prosecutorial Misconduct
court and, in those proceedings, introduced several documents
attempting to corroborate the deal between Clay Brackett and           Bowling’s fourth set of claims relates to allegations of
the government and to establish the culpability of Donald            misconduct on the part of the prosecution. On direct appeal,
Adams. We find this sufficient to show that Bowling was              the Kentucky Supreme Court considered the claims of
diligent in his state court litigation.                              prosecutorial misconduct together and found no merit in
                                                                     them. Bowling I, 873 S.W.2d at 178.
  However, the fact that Bowling is not disqualified from
receiving an evidentiary hearing under § 2254(e)(2) does not
entitle him to one. We must determine then whether the
district court abused its discretion by denying him an                    9
                                                                           To the extent that Bowling seeks relief by arguing that the Kentucky
evidentiary hearing. See Sawyer, 299 F.3d at 610. This court         courts erroneously applied state law by denying him a post-conviction
has held that “a habeas petitioner is generally entitled to such     evidentiary hearing, we reject his claim. As we have noted in this opinion
a hearing if he alleges sufficient grounds for release, relevant     already, we generally do not review alleged vio lations o f state law in
facts are in dispute, and the state courts did not hold a full and   federal habeas p roceedings; there must be some independ ent
                                                                     constitutional error. Estelle v. Mc Guire, 502 U.S. 62, 67-68 (1991).
fair evidentiary hearing.” Id. (internal quotations omitted).        Insofar as Bowling may be claiming that this alleged state-law error
However, “[e]ven in a death penalty case, ‘bald assertions and       violated due process, we believe that any po tential error was not so
conclusory allegations do not provide sufficient ground to           fundamentally unfair as to violate Bo wling’s due-process rights. Insofar
warrant requiring the state to respond to discovery or to            as Bowling may be claiming that this alleged error entitled him to an
require an evidentiary hearing.’” Stanford v. Parker, 266            evidentiary hearing in federal court, we have considered and rejected this
                                                                     claim immediately above.
No. 01-5832                           Bowling v. Parker      37    38   Bowling v. Parker                            No. 01-5832

  On habeas review, claims of prosecutorial misconduct are           or in reverse. Is there anybody here that is not in neutral?
reviewed deferentially. Darden v. Wainwright, 477 U.S. 168,          How did you like the way I viewed that? Thank you; I
181 (1986). To be cognizable, the misconduct must have “‘so          have no other questions, Judge.
infected the trial with unfairness as to make the resulting
conviction a denial of due process.’” Id. (citation omitted).      J.A. at 3317-18. Bowling is correct when he states that a jury
Even if the prosecutor’s conduct was improper or even              must be told a defendant is presumed innocent. Taylor v.
“universally condemned,” id., we can provide relief only if        Kentucky, 436 U.S. 478, 484-86 (1978). Given the context of
the statements were so flagrant as to render the entire trial      the prosecutor’s statement, it is clear that the prosecutor did
fundamentally unfair. Once we find that a statement is             not undermine that presumption; instead, the prosecutor was
improper, four factors are considered in determining whether       merely trying to make sure that the jury began the trial
the impropriety is flagrant: (1) the likelihood that the remarks   without presuppositions about the case. The same prosecutor
would mislead the jury or prejudice the accused, (2) whether       had made the following remark only seconds before:
the remarks were isolated or extensive, (3) whether the
remarks were deliberately or accidentally presented to the           Do we all agree that this Defendant is, as he sits right
jury, and (4) whether other evidence against the defendant           here, innocent until proven guilty? We all understand
was substantial. See Boyle v. Million, 201 F.3d 711, 717 (6th        that there has been no evidence heard in this case. And,
Cir. 2000). Under AEDPA, this bar is heightened by the               as a result, if all of us had to vote right now, we would
deference we give to the Kentucky Supreme Court’s                    have to vote not guilty because we haven’t heard any
determination of Bowling’s prosecutorial-misconduct claims.          evidence. Do we understand that? Okay; now, in
See Macias v. Makowski, 291 F.3d 447, 453-54 (6th Cir.               criminal cases, the burden of proving a person charged
2002) (“If this court were hearing the case on direct appeal,        with a crime guilty beyond a reasonable doubt rests on
we might have concluded that the prosecutor’s comments               the Commonwealth . . . . The burden is on us; do you
violated Macias’s due process rights. But this case is before        understand that?
us on a petition for a writ of habeas corpus. So the relevant
question is not whether the state court's decision was wrong,      J.A. at 3315. Considering these statements together, it
but whether it was an unreasonable application of clearly          becomes apparent that the presumption of innocence was not
established federal law.”).                                        negated in this case. There is therefore no impropriety here,
                                                                   and this claim is easily dismissed.
  1. The Presumption of Innocence
                                                                     2. Comments on Bowling’s Silence
  Bowling’s first claim is that the prosecutor negated the
presumption of innocence during general voir dire by drawing          Bowling also argues that the prosecution made
the following analogy:                                             constitutionally improper comments about his failure to
                                                                   testify. Bowling has two comments in mind. First, in the
  Okay; most of us know how to drive a standard                    prosecution’s closing argument in the guilt phase, the
  transmission. That means that you are not going forward          prosecutor argued that the defendant did have a motive:
  in this case or you are not going in reverse in this case,
  but you are sitting in neutral waiting to determine, based         But, see, we have proven a motive. There is no doubt he
  on the evidence you hear here, whether you go forward              had one. See, something made him buy that gun from
No. 01-5832                           Bowling v. Parker      39    40   Bowling v. Parker                           No. 01-5832

  Mr. Brackett before this killing. Something caused him           necessarily’ take them as such; 2) were the remarks isolated
  to go out and sit by that fence row by that empty slat.          or extensive; 3) was the evidence of guilt otherwise
  Something made him do that. Something made him say               overwhelming; 4) what curative instructions were given and
  that morning, “Today is the day.” Something motivated            when.” Lent v. Wells, 861 F.2d 972, 975 (6th Cir. 1988), cert.
  him to plan it so that he caught Eddie and Tina Early            denied, 489 U.S. 1100 (1989).
  there the every morning [sic] — or, at the very moment
  of their arrival at the cleaners. And, something                    The prosecution’s comments do not create constitutional
  motivated him to ram his car into theirs, and to empty           error. Analyzing the above factors, we conclude that both of
  that .357 into their bodies. We have proven to you that          the comments are singular, inadvertent statements that only
  he had a motive. We can’t tell you what it is, because           upon reflection marginally touch on Bowling’s silence. They
  only the man that pulled the trigger knows. But, we              were not manifestly intended to reflect on Bowling’s silence
  know that there is one.                                          and likely would not have been taken as such. The
                                                                   prosecution’s first comment, which was not objected to, that
J.A. at 4860-61. Bowling argues that the statement “only the       “only the man that pulled the trigger knows” was probably
man that pulled the trigger knows,” was effectively a              intended to show the jury that the prosecution had done
comment on the fact that Bowling did not testify at trial.         everything it could to show motive; the comment was likely
Bowling did not, however, object to this statement at the time.    not intended to highlight the defendant’s silence. The second
Bowling also points to the prosecution’s argument in the           statement seems even less appropriately construed as a
penalty phase where the prosecutor remarked, “What the             comment on the defendant’s silence — the prosecution was
defendant cannot get away from here is the planning, the           merely emphasizing its view that the defendant’s actions at
premeditation, the physical evidence, his actions, the             the time of the crime (rather than his silence at trial)
callousness of it, and his lack of seeming remorse.” J.A. at       demonstrated no remorse. See Lent, 861 F.2d at 975 (stating
5116. Bowling objected to this statement at trial and argues       that there can be no constitutional error if “some other
here that it also was a comment on Bowling’s silence.              explanation for the prosecutor’s remarks is equally
                                                                   plausible”). We therefore conclude that such comments do
  The law is clear that the prosecution cannot comment on a        not constitute constitutional error.
defendant’s decision not to testify at trial. See Griffin v.
California, 380 U.S. 609, 615 (1965); Rachel v.                      3. Diminished Jury Responsibility
Bordenkircher, 590 F.2d 200, 202 (6th Cir. 1978) (granting
writ of habeas corpus and requiring a new trial when the             Bowling argues that the prosecutor diminished the jury’s
prosecutor remarked that he could not say what happened            responsibility for deciding whether to apply the death penalty.
because the defendant “won’t tell us”). Yet, prosecutors can       Bowling points to several comments made at the penalty
“summarize the evidence and comment on its quantitative and        phase that he alleges took the responsibility for the death
qualitative significance.” United States v. Bond, 22 F.3d 662,     sentence away from the jury and placed it on the prosecution,
669 (6th Cir. 1994). When a statement indirectly comments          the legislature, and society.
on the defendant’s decision not to testify, this court uses four
factors to evaluate such a statement: “1) Were the comments          The Supreme Court has established that “it is
‘manifestly intended’ to reflect on the accused's silence or of    constitutionally impermissible to rest a death sentence on a
such a character that the jury would ‘naturally and                determination made by a sentencer who has been led to
No. 01-5832                          Bowling v. Parker      41    42     Bowling v. Parker                                    No. 01-5832

believe that the responsibility for determining the               (holding that, under Dugger, the use of the word
appropriateness of the defendant’s death rests elsewhere.”        “recommend” under Kentucky law did not misstate the jury’s
Caldwell, 472 U.S. at 328-29. In Caldwell, the Supreme            role and therefore could not amount to a Caldwell
Court reversed the defendant’s conviction after the prosecutor    violation).10 As a result, this statement was not made in
explicitly argued that the responsibility for the death penalty   violation of Caldwell.
was not with the jury, by telling the jurors “your decision is
not the final decision.” Id. at 325. In Dugger v. Adams, 489       The second potentially problematic statement was also
U.S. 401 (1989), the Court held that “to establish a Caldwell     made by the prosecution in its closing:
violation, a defendant necessarily must show that the remarks
to the jury improperly described the role assigned to the jury      That is an extraordinary case, you see. Multiple
by local law.” Id. at 407. Bowling cites several statements         homicides, intentional killings; you kill one person.
made in closing argument that allegedly violate Caldwell, but       Don’t kill everybody else, the other witnesses.
none of these claims have merit.                                    Extraordinary cases. In Kentucky, the death penalty
                                                                    applies. And, our Legislature has said in those
  A number of the statements Bowling puts forward clearly           aggravated murder cases that the death penalty may be
do not constitute Caldwell violations. Bowling claims that          imposed by a jury. Potter Stewart, a former Justice of the
the prosecutor improperly told the jury to find the death           United States Supreme Court, said while dealing with
penalty because Bowling was not ill but mean, because the           death penalty cases. “The expression of society’s moral
legislature had deemed the death penalty appropriate when it        outrage is essential in an ordered society that asks its
devised the legislative scheme, and because Bowling might
be released on parole otherwise. We note initially that
Bowling’s characterizations of the prosecution’s remarks are           10
                                                                          There is a violation of state law here, how ever, beca use during the
somewhat inaccurate and exaggerated. In any event,                period between Caldwe ll and Dugger (and before the trial in this case),
however, Bowling has not shown how the prosecution’s              the Kentucky Suprem e Co urt held that the wo rd “recom mend,” wh ile
remarks improperly described the role assigned to the jury by     technically accurate, improperly suggested to the jury that they were
local law as required by Caldwell.                                “mere ly one step in a long process.” Tamme v. Commonwea lth, 759
                                                                  S.W.2d 51, 5 3 (K y. 198 8); cf. Kordenbrock, 919 F.2d at 1101 (holding
   Only two of the prosecutor’s statements are potentially        that there was no violation of state law because the trial and appeal in the
                                                                  case at bar happened before the decision in Tamme and the dec ision in
serious violations of Caldwell. The first statement was made      Tamme was not retroactive).
by the prosecutor who, when addressing the jury, stated that           W e do not believe this violation of state law is so egregious as to
the jurors could not “recommend the death penalty unless          make the prosecutor’s misconduct a violation of due process. Although
[they] first decide that an aggravating factor exists.” J.A. at   the prosecutor erroneously used the word “recommend,” it was an isolated
5113-14 (italics added). Bowling alleges that the jury’s          remark and clearly not intended to prejudice the jury — the prosecutor
                                                                  routine ly used other m ore approp riate words, such as “fix[]” and
responsibility for the death penalty was unconstitutionally       “impose” throughout his closing argument. J.A. at 511 0, 51 13. In fact,
lessened by the use of the word “recommend.” We have held,        his closing argument ended with the stateme nt, “I am asking you to
however, that this statement does not misstate local law          sentence T.C. Bo wling to death.” J.A. at 5120. In this context, it is clear
because Kentucky statutes also use the word “recommend.”          that the jury was well aware that it had responsibility of deciding whether
See KY . REV . CODE ANN . § 532.025(1)(b); Kordenbrock v.         the death penalty should apply. We therefore hold that any potential
                                                                  violation of state law under Tamme did not violate B owling’s due-pro cess
Scroggy, 919 F.2d 1091, 1101 (6th Cir. 1990) (en banc)            rights.
No. 01-5832                            Bowling v. Parker       43    44   Bowling v. Parker                           No. 01-5832

  citizens to rely on legal processes rather than self-help to       113. The Solivan court distinguished Alloway by noting that
  vindicate their wrongs.” He continued — and this is                the comments in Alloway “constituted a general plea which
  critical — “because,” he said, “when people begin to               did not even specifically refer to the crime of armed robbery,”
  believe that organized society is unwilling or unable to           and that “armed robbery was not and is not the specific focus
  impose on criminal offenders the punishment they                   of national attention as is the drug problem.” Solivan, 937
  deserve, then the seeds of anarchy will soon be sewn.”             F.2d at 1155. In contrast, in Solivan, “the prosecutor went
                                                                     beyond . . . a mere innocuous reference to the community or
J.A. at 5111-12. Bowling argues that this quotation, which           societal need to convict guilty people . . . and went so far as
comes from Justice Stewart’s concurrence in Furman v.                to urge the jury to send a message to the community, to
Georgia, 408 U.S. 238, 308 (1972), and was repeated in               defendant and ‘all of the drug dealers like her’ by convicting
Gregg v. Georgia, 428 U.S. 153, 183 (1976), violates the             defendant.” Id. In Solivan, the prosecutor suggested that
principles announced in Caldwell. However, it is clear that          through a conviction “the jury . . . would help keep its
there is nothing in this statement that explicitly misinforms        community in northern Kentucky free of the drug trade.”
the jury of its role. Bowling’s argument here is better
conceptualized as a claim under Viereck v. United States, 318          In Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001), we again
U.S. 236 (1943), which held that the incendiary nature of a          addressed the distinction between Alloway and Solivan,
prosecutor’s patriotic remarks which were “wholly irrelevant         denying a writ of habeas corpus to a defendant on the basis of
to any facts or issues in the case, the purpose and effect of        a prosecutor’s remark that “the jury should ‘send a message
which could only have been to arouse passion and prejudice”          to the Robert Buells of the world’ that ‘if you're going to
jeopardized the defendant’s right to a fair trial. Id. at 247.       commit this kind of a crime then you better be expecting to
This court, however, has stated that unless the remarks were         pay the ultimate price, yourself.” Id. at 365. We noted that
“calculated to incite the passions and prejudices of the jurors,     the prosecutor in Buell “was not making a statement regarding
appeals to the jury to act as the community conscience are not       the jury’s ability to address a specific societal problem,” but
per se impermissible,” United States v. Solivan, 937 F.2d            was merely making “a general statement regarding the need
1146, 1151 (6th Cir. 1991), and so a case-by-case analysis is        to convict people who commit sexual molestation and
required.                                                            murder.” Id.
  In Solivan, we held that a prosecutor violated the                    Under our binding precedents, we hold that the prosecutor’s
defendant’s right to a fair trial when he urged the jury to “tell    statement in this case is not so improper as to violate
her and all of the other drug dealers like her . . . that we don’t   Bowling’s due-process rights. The statement that Bowling
want that stuff in Northern Kentucky and that anybody who            complains of is a general reference to the societal need to
brings that stuff in Northern Kentucky . . . [interrupted by the     punish guilty people; the prosecutor in this case did not
court]” Id. at 1148. An earlier case, United States v. Alloway,      “attempt to compare or to associate the defendant with a
397 F.2d 105 (6th Cir. 1968), had held not improper a                feared and highly publicized group, such as drug dealers,”
prosecutor’s statement that “You the jurors, are called upon         Solivan, 937 F.2d at 1154, but was attempting only to make
in this case to be the world conscience of the community.            “a general statement regarding the need to convict people who
And I'm calling on this jury to speak out for the community          commit . . . murder,” Buell, 274 F.3d at 365. Moreover, the
and let the John Alloways know that this type of conduct will        prosecutor did not state that the jurors’ individual
not be tolerated, that we're not going to tolerate . . .” Id. at     communities would be safer if the defendant were convicted,
No. 01-5832                          Bowling v. Parker     45    46   Bowling v. Parker                            No. 01-5832

as was the case in Solivan. Although we will not say that the    399, 409 (6th Cir. 2000) (upholding the statement, “Ask
giving of this statement was proper, see State v. Byrd, 512      yourself if you had a loved one, or had a relative, or a friend,
N.E.2d 611, 615-16 (Ohio 1987) (calling the same argument        who was in a situation like that”). Given the Simpson
“not proper” and “caution[ing] prosecutors to avoid such         precedent, by which this panel is bound, we must conclude
arguments”), we do not find it, under the circumstances of       that the statement that Bowling complains of is not so
this case, so improper as to render Bowling’s trial              fundamentally unfair as to constitute a denial of due process.
fundamentally unfair, see Macias, 291 F.3d at 453-54 (noting
that the normally deferential review of prosecutorial              5. Finding of Statutory Aggravator
misconduct is even more deferential under AEDPA).
                                                                    Bowling next claims prosecutorial misconduct amounting
  4. The Golden Rule                                             to a denial of due process in the fact that the prosecutor told
                                                                 the jury, during the eligibility section of the penalty phase,
  Bowling claims that the prosecutor also committed              that because it had already found the aggravating
misconduct when, after discussing the testimony of Bowling’s     circumstance in the guilt phase of the trial (by finding
family, he remarked in the penalty phase:                        Bowling guilty of intentional double homicide), it need not
                                                                 again consider whether there was an aggravating
  It is always difficult when a family member testifies on       circumstance in the penalty phase, because under Kentucky
  behalf of someone charged with a crime. They are his           law, the aggravating circumstance was already shown. See
  family. And, what do you expect? Don’t you know that           KY . REV . CODE ANN . § 532.025(2)(a)(6) (making an offender
  Mr. and Mrs. Early and Ms. Morgan would give anything          eligible for the death penalty when “[t]he offender's act or
  in the world to have had the opportunity to beg for their      acts of killing were intentional and resulted in multiple
  children’s life on April 9, 1990. Please don’t hurt our        deaths”). The prosecutor remarked as follows:
  children. And, don’t you know, Chris [the injured child],
  if he could, would love to have plead for the life of his        You cannot recommend the death penalty unless you first
  mother and father.                                               decide that an aggravating factor exists. Did the
                                                                   Defendant, Thomas Clyde Bowling, Jr. intentionally
J.A. at 5115-16. Bowling argues that the prosecutor’s              cause the death of more than one person. I don’t have to
comments here are similar to the forbidden Golden Rule,            remind you that you found that last Friday.
which “tends to pressure the jury to decide the issue of guilt
or innocence on considerations apart from the evidence of the    J.A. at 5113-14.
defendant’s culpability.” Dean v. Commonwealth, 777
S.W.2d 900, 904 (Ky. 1989) (finding error in an extended            This instruction does not appear to violate Bowling’s
statement glorifying the victim of a homicide).                  constitutional rights. First, an aggravating circumstance may
                                                                 be found at either the guilt or penalty phase. See Tuilaepa v.
   This comment, however, was an isolated remark that did        California, 512 U.S. 967, 971-72 (1994). Second, Tuilaepa
not suggest to the jury that they should decide the case on a    notwithstanding, the jury instructions in this case did in fact
basis other than Bowling’s culpability. This court has           require the jury to find the aggravating circumstance beyond
recently held a more dangerous comment not to be improper,       a reasonable doubt in the penalty phase as well as in the guilt
let alone a denial of due process. Simpson v. Jones, 238 F.3d
No. 01-5832                           Bowling v. Parker      47    48   Bowling v. Parker                            No. 01-5832

phase, J.A. at 5106, which the jury found, J.A. at 5138. There       In summary, we find none of Bowling’s allegations of
is therefore no error.                                             prosecutorial misconduct, individually or together, violate due
                                                                   process.
  6. Denigration of Bowling’s Mitigation Evidence
                                                                   G. Denial of Fair Jury
  Finally, Bowling argues that the prosecution improperly
told the jury that it did not have to consider Bowling’s              Bowling’s next set of claims is that the jury empaneled to
mitigation evidence. Bowling cites to the part of argument         hear his case was unfairly selected. Bowling has two
where the prosecutor remarked:                                     independent claims for relief. His first argument is that one
                                                                   of the jurors actually seated was an “automatic death penalty”
  It is a strong, strong, strong case against this Defendant.      juror who should have been excluded. Bowling’s second
  And, what about mitigating circumstances that you are            argument is that three jurors, whom Bowling eventually
  instructed to consider, if you wish; Mitigating                  struck with his peremptory challenges, should have been
  circumstances, whether there are any mitigating                  dismissed for cause. These claims do not have merit.
  circumstances that would make this entire event less
  serious, the brutal murder of two young lives. Are there            Bowling’s first claim of improper jury selection is that
  any such circumstances? Are there?                               Charles Livingston, Juror # 650, should have been excluded
                                                                   for cause as an “automatic death penalty” juror. See Morgan
J.A. at 5116 (italics added). Bowling argues that the              v. Illinois, 504 U.S. 719, 728 (1992) (noting that “a capital
italicized phrase makes it seem that the jury does not need to     defendant may challenge for cause any prospective juror . . .
consider the mitigating evidence, which it is constitutionally     who will automatically vote for the death penalty in every
required to do under Boyde v. California, 494 U.S. 370, 380        case”); see also Wainwright v. Witt, 469 U.S. 412, 424 (1985)
(1990). This could be an improper attempt to suggest to the        (“[T]he proper standard for determining when a prospective
jury they may decide not to consider mitigating evidence, but      juror may be excluded for cause because of his or her views
it seems more likely to be interpreted as a simple argument        on capital punishment . . . is whether the juror’s views would
that there is no mitigating evidence. See Lent, 861 F.2d at        prevent or substantially impair the performance of his duties
975 (noting that there can be no constitutional error if “some     as a juror in accordance with his instructions and his oath.”)
other explanation for the prosecutor’s remarks is equally          (internal quotation omitted). In determining whether a juror
plausible”). Even if this is error, however, it is an isolated,    is biased, “deference must be paid to the trial judge who sees
unintentional error with no effect on the jury. The jury was       and hears the juror.” Witt, 469 U.S. at 426. Even before
repeatedly told in the instructions that they had to consider      AEDPA, the trial court’s finding that a juror was impartial
mitigating evidence; for example, an instruction states that the   was entitled to a presumption of correctness, rebuttable only
jury “shall consider such mitigating or extenuating facts and      upon a showing of clear and convincing evidence. See 28
circumstances as have been presented to you.” J.A. at 5106.        U.S.C. § 2254(e)(1); Patton v. Yount, 467 U.S. 1025, 1036
Bowling has therefore not made out a violation of due process      (1984) (noting that juror partiality is a question of historical
here.                                                              fact). The question is not whether the trial judge was wrong
                                                                   or right in his determination of impartiality, but merely
                                                                   whether his decision was “fairly supported by the record.”
                                                                   See Witt, 469 U.S. at 433 (internal quotations omitted).
No. 01-5832                             Bowling v. Parker        49    50   Bowling v. Parker                         No. 01-5832

  The colloquy between Livingston, the trial court, and the             Q [(Court)]: Would you consider if mitigating
two sets of counsel was extensive:                                                    circumstances were proven to you along
                                                                                      with the rest of the case?
  Q [(Pros.)]: If you were selected as a jury — juror, and              A:      I would try.
               along with your eleven jurors in a                       Q:      Would you consider all of the facts in the case,
               particular case concluded that the                               not just the fact that he had committed a
               defendant was guilty of intentional murder,                      multiple killing, but circumstances of how,
               then could you in the sentencing phase or                        why, when, and under what mental condition
               the penalty phase consider the entire range                      and all that sort of thing?
               of penalties, twenty years to life, life                 A:      Uh-huh.
               without parole, or death?                                Q:      Would you consider all of those factors?
  A:           One?                                                     A:      Yes, (inaudible).
  Q [(Court)]: And, decide on one of them; but, could you               Q:      Then, let me know whether you believe that in
               consider all three penalties?                                    every case where a defendant is convicted of an
  A:           I could consider them all.                                       intentional killing that the death penalty would
                                                                                automatically be given or should automatically
J.A. at 3534-35. The court then asked whether Livingston                        be given? Do you believe that? Are you sure
could vote for the death penalty, and he answered                               you understand what I am saying now?
affirmatively. The court then asked:                                    [Some clarification.]
                                                                        * **
  Q: By like token, even though the Defendant was found                 A:      Well, what I’m saying now, you are saying if a
     guilty beyond a reasonable doubt of intentional                            man takes another person’s life intentionally —
     murder, if the other facts of the case made it                             you know, I feel that when a man takes another
     appropriate that only twenty years be fixed as the                         life, he should be punished for that. But, if he
     penalty, you could do that, too?                                           takes someone’s life and he is not in his right
  A: Yes.                                                                       mind, then I would consider (inaudible).
                                                                        Q:      Would you consider other facts that the law
J.A. at 3536. However, Livingston was then asked questions                      says are mitigating circumstances? Well, I take
by defense counsel. He first equivocated on whether he could                    it, that if the jury — if you should be on a jury
necessarily or automatically give the death penalty, stating,                   and you find the Defendant in a particular case
“Well, you know, in a trial if it is proven that he is guilty . . .”            guilty of intentional murder, you wouldn’t
J.A. at 3539. He was then asked, “but, given that situation of                  automatically, then, say death penalty and
a multiple intentional killing, found guilty beyond a                           nothing else considered?
reasonable doubt, that would lead you to automatically vote             A:      No, I would have to consider the other options.
for the death penalty?” J.A. at 3540-41. He responded,                  Q:      You could consider all of them including
“Yes.” J.A. at 3541. Livingston later also stated that he felt                  twenty years, the minimum.
strongly about that. Eventually, the Court intervened and               A:      Yes; I definitely don’t want, you know,
asked some direct questions:                                                    (inaudible) see someone take the death penalty
                                                                                (inaudible).
No. 01-5832                             Bowling v. Parker       51    52    Bowling v. Parker                            No. 01-5832

  Q:        Deserve it based upon your finding of all the             mean the Sixth Amendment was violated.”); see also United
            facts — in your consideration of all of the facts         States v. Martinez-Salazar, 528 U.S. 304, 307 (2000) (noting
            in the case?                                              that there is no violation if the defendant “elects to cure [the]
  A:        Right.                                                    error by exercising a peremptory challenge, and is
  Q:        Not just that one fact, that it was a multiple            subsequently convicted by a jury on which no biased juror
            killing?                                                  sat”). There is therefore no constitutional violation here.
  A:        Yes.
                                                                      H. Proportionality Review
J.A. at 3542-46. Livingston was then moved out of the room.
Bowling’s counsel challenged him for cause, but the motion              Bowling’s last claim for habeas relief is that the review by
was denied.                                                           the Kentucky Supreme Court for proportionality was
                                                                      unconstitutional. Bowling claims that the Kentucky Supreme
  Though we recognize this is a close question, ultimately            Court erred in not setting aside his death sentence, because it
Livingston is not an “automatic death penalty” juror within           was excessive and disproportionate to the penalty imposed in
the meaning of Morgan. Livingston did initially state that he         similar cases. This claim fails.
would automatically give the death penalty to those who met
the aggravating factor, but later he expressly said that he              The Supreme Court has held that the Constitution does
would consider mitigating evidence. The trial court asked             require proportionality review, but that it only requires
Livingston thorough questions, and Livingston’s responses             proportionality between the punishment and the crime, not
showed that he was not someone who would automatically                between the punishment in this case and that exacted in other
impose the death penalty in all cases. Morgan requires only           cases. See Pulley v. Harris, 465 U.S. 37, 50 (1984).
that a juror be excluded if he would automatically “vote for          Although “[t]here is no federal constitutional requirement that
the death penalty without regard to the mitigating evidence,”         a state appellate court conduct a comparative proportionality
something that Livingston explicitly said he would not do.            review,” McQueen v. Scroggy, 99 F.3d 1302, 1333-34 (6th
Morgan, 504 U.S. at 738. This being the case, given the               Cir. 1996), cert. denied, 521 U.S. 1130 (1997), Kentucky law
deference we give to trial courts’ determinations of                  does require the Kentucky Supreme Court to engage in
impartiality, we find that there is no constitutional error here,     comparative proportionality review. See KY . REV . CODE
and alternatively, that the Kentucky Supreme Court’s decision         ANN . § 532.075(3)(c). Although claimed violations of state
to that effect, Bowling I, 873 S.W.2d at 177, was not                 law are generally not cognizable on habeas, the Supreme
objectively unreasonable.                                             Court has left room for the argument that a state-law error
                                                                      could, potentially, “be sufficiently egregious to amount to a
  Bowling’s second claim is that he was forced to use                 denial of equal protection or of due process of law guaranteed
peremptory challenges to strike three other jurors who should         by the Fourteenth Amendment.” Harris, 465 U.S. at 41.
have been disqualified for cause, and that he could have used         Bowling therefore argues that the Kentucky proportionality
these peremptories to exclude Livingston. The Supreme                 requirement creates a due-process interest that the Kentucky
Court has made it clear that this is not a constitutional injury.     Supreme Court violated by not finding his sentence
See Ross v. Oklahoma, 487 U.S. 81, 88 (1988) (“So long as             disproportionate.
the jury that sits is impartial, the fact that the defendant had to
use a peremptory challenge to achieve that result does not
No. 01-5832                          Bowling v. Parker      53    54   Bowling v. Parker                           No. 01-5832

  As an initial matter, we question whether Kentucky law has      stating that “Kentucky has limited review to cases in which
created a due-process interest here. Kentucky requires that its   the death penalty was imposed.” Appellant Br. at 121.
Supreme Court assess “[w]hether the sentence of death is
excessive or disproportionate to the penalty imposed in              Bowling’s recognition that Kentucky law does not require
similar cases, considering both the crime and the defendant,”     consideration of those additional cases reveals that he is
and also requires it to “include in its decision a reference to   actually arguing that Kentucky has an ineffective framework
those similar cases which it took into consideration.” KY .       for assessing proportionality rather than a claim that
REV . CODE ANN . § 532.075(3)(c) & (5). This circuit recently     Kentucky misapplied its own framework. This forecloses
held that Tennessee’s proportionality statute, which is similar   Bowling’s due-process argument, however, for there is no
to the statute here, did not create a liberty interest because    violation of due process as long as Kentucky follows its
“the statute only tells the supreme court what questions it       procedures. We note that we also have specifically rejected
must ask. It does not tell the supreme court how it must do       this type of challenge to Ohio’s proportionality statutes,
so, and it does not even define the terms (e.g., arbitrariness)   stating:
of these questions. As a result, [the defendant] has no federal
due-process right that was violated.” Coe, 161 F.3d at 352          [T]he Ohio Supreme Court has indicated that
(citing Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454,          proportionality review is required under Ohio Rev. Code
463 (1989)). Similarly here, the statute only explains what         § 2929.05(A) to the extent that the reviewing court must
the Kentucky Supreme Court needs to consider — similar              consider cases already decided by the court in which the
cases, the crime, and the defendant — it does not tell that         death penalty had been imposed. Since proportionality
court how to make this decision. This suggests under Coe            review is not required by the Constitution, states have
that no due-process right exists.                                   great latitude in defining the pool of cases used for
                                                                    comparison. By limiting proportionality review to other
   Even if there were a due-process interest here, however, the     cases already decided by the reviewing court in which
Kentucky Supreme Court did not violate it. The Kentucky             the death penalty has been imposed, Ohio has properly
Supreme Court, in its decision on direct appeal, did conduct        acted within the wide latitude it is allowed.
a comparative proportionality review and concluded it did not
show that “this sentence of death is either excessive or          Buell, 274 F.3d at 368-69 (citations omitted). As a result, we
disproportionate to the penalty proposed in other capital         find Bowling’s proportionality argument unconvincing and
cases.” Bowling I, 873 S.W.2d at 181. In support, the             dismiss his corresponding claim for relief.
Kentucky Supreme Court cited four of its cases and
incorporated a list of others. Id. at 181-82.                                         III. CONCLUSION

  Bowling argues that the Kentucky Supreme Court only               After having reviewed the record, the briefs, and the
compared Bowling’s sentence to other crimes where the death       various earlier opinions in this case, and after oral argument,
penalty was imposed, but should have compared Bowling’s           we conclude that Bowling has not made out a claim for
sentence to similar crimes where the death penalty was not        habeas corpus relief, either by virtue of a single error or
imposed. There is no clear support in Kentucky law for the        through the cumulative effect of multiple errors. We also
proposition that the Kentucky Supreme Court must also             conclude that his claim for an evidentiary hearing should be
consider those additional cases. In fact, Bowling notes this,
No. 01-5832                      Bowling v. Parker   55

denied. We therefore AFFIRM the judgment of the district
court.
