               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                  File Name: 19a0458n.06

                                      Case No. 14-6505

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT                                FILED
                                                                             Aug 29, 2019
  MITCHELL WILLOUGHBY,                             )                     DEBORAH S. HUNT, Clerk
                                                   )
        Petitioner-Appellant,                      )
                                                   )
                v.                                 )     ON APPEAL FROM THE
                                                   )     UNITED STATES DISTRICT
  RANDY WHITE, Warden,                             )     COURT FOR THE EASTERN
                                                   )     DISTRICT OF KENTUCKY
        Respondent-Appellee.                       )
                                                   )

Before: COLE, Chief Circuit Judge; BATCHELDER and GRIFFIN, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. A Kentucky prisoner, sentenced to death,

appeals the denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. We AFFIRM.

                                              I.

       On January 13, 1983, Mitchell Willoughby and Leif Halvorsen went to Joe Norman’s

house. Willoughby had a contentious relationship with Norman, and both he and Halvorsen went

there armed.   Both were also intoxicated.    Willoughby’s girlfriend, Susan Hutchens, went

separately to Norman’s house, but she was also armed and had purchased ammunition for

Willoughby and Halvorsen earlier in the day. When they arrived, Norman was there with his

girlfriend, Jaqueline Greene, and her friend, Joey Durrum. Discussion among Willoughby,

Halvorsen, and Norman became heated, tempers flared, and Willoughby and Halvorsen started

shooting. Norman was killed immediately but, after the initial shooting stopped, Willoughby

executed the wounded Greene and Durrum. Willoughby and Halvorsen wrapped the three bodies

in sheets, tied rocks to them with rope, and loaded them into a van. That night, they drove the
No. 14-6505, Willoughby v. White


bodies to a bridge from which they intended to dump them into the river. Only one body, however,

landed in the riverbed and, for whatever reason, they left the other two bodies on the bridge.

       When the police connected the crimes to Willoughby, he claimed that he shot Norman in

self-defense but had no recollection of shooting the others. The police established that all three

victims had been shot with both Willoughby’s and Halvorsen’s guns. The prosecutor charged

Willoughby, Halvorsen, and Hutchens, but tried Hutchens separately—she testified against

Willoughby and Halvorsen.            At trial, Willoughby testified and took responsibility for the

shootings; Halvorsen did not testify. The jury convicted both men of all three murders and

recommended the death penalty for the executions of Greene and Durrum.

       Willoughby appealed1 and the Kentucky Supreme Court affirmed, rejecting, among other

things, Willoughby’s two claims of prosecutorial misconduct. The first was that the prosecutor

had impermissibly minimized the jurors’ responsibility on the death-penalty question by phrasing

his voir dire questions and closing argument to suggest that the jurors did not set the death penalty,

but merely recommended it to the court, which would then make the actual determination. The

other was that the prosecutor had: (1) argued, without evidentiary support, that Willoughby, if left

alive, posed a danger to prison guards and inmates, as well as the outside population due to the

risk of his escape; (2) likened Willoughby to notorious murderers Gary Gilmore, Charles Manson,

and Richard Speck; and (3) vouched for the credibility of prosecution witnesses, investigating

police officers, and prosecutor’s office staff. The Kentucky Supreme Court rejected these claims,

noting that defense counsel had not objected to the statements during trial, that the statements were

not as flagrant or improper as Willoughby represented, and that, given the totality of the

incriminating evidence, the statements were not prejudicial. Halvorsen v. Kentucky (“Willoughby

I”), 730 S.W.2d 921, 924-25 (Ky. 1986), cert. denied, 484 U.S. 982 (1987).


       1
           This was a consolidated appeal with the opinion covering the appeals by both Willoughby and Halvorsen.
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No. 14-6505, Willoughby v. White


         Willoughby’s trial and sentencing were in July and August 1983, and the Kentucky

Supreme Court affirmed in December 1986. After that, Willoughby filed several post-conviction

motions in state court, only one of which is pertinent here. In that motion, filed in November 2004,

Willoughby claimed juror misconduct at his 1983 trial because a juror, Reverend Walter

Garlington, had brought his Bible (which he brought with him everywhere) into the jury room,

where he read passages from it and led the jurors in daily prayer during deliberations. The

Kentucky trial court found this motion untimely—because Willoughby filed it over 20 years after

the court had permitted interviews with willing jurors—and dismissed it.2 The Kentucky Supreme

Court held “that the trial court did not abuse its discretion in finding that both Halvorsen’s and

Willoughby’s CR 60.02 motions were not filed within a reasonable time.” Willoughby v. Kentucky

(“Willoughby II”), Nos. 2006-sc-000071, 2007 WL 2404461, at *1 (Ky. Aug. 23, 2007).

         In May 2008, Willoughby filed a § 2254 petition, raising several claims, though only three

survive to this appeal: (1) juror misconduct for use of the Bible; (2) prosecutorial misconduct for

saying the jury’s sentencing verdict was just a recommendation; and (3) prosecutorial misconduct

for exaggerating Willoughby’s danger, likening him to notorious murderers, and vouching for the

credibility of prosecution witnesses and staff. The district court denied all of Willoughby’s claims.

Willoughby v. Simpson (“Willoughby III”), No. 5:08-cv-179, 2014 WL 4269115 (E.D. Ky. Aug.

29, 2014).

         Willoughby sought and obtained a certificate of appealability for these three issues. Id. at

*66.




           2
             The Kentucky Supreme Court also pointed out: “Juror Garlington’s strong religious views surfaced during
the trial, as is plainly evident from the astonishing fact that the trial court allowed Garlington to lead the courtroom in
prayer at the conclusion of the case. So through due diligence and proper questioning, Halvorsen and Willoughby
could have learned of any alleged jury misconduct [of this nature] approximately twenty years before they filed their
CR 60.02 motion.” Willoughby v. Kentucky, Nos. 2006-sc-000071, 2007 WL 2404461, at *2 (Ky. Aug. 23, 2007).
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No. 14-6505, Willoughby v. White


                                                  II.

       In an appeal from a district court’s finding of a petitioner’s procedural default, we review

the district court’s legal conclusions de novo and its findings of fact for clear error. Scott v. Houk,

760 F.3d 497, 503 (6th Cir. 2014).

       Willoughby claimed juror misconduct because juror Walter Garlington, who apparently

brought his Bible with him everywhere, brought his Bible into the jury room, where he read

passages from it and led the jurors in daily prayer during deliberations. The Kentucky trial court

dismissed this motion as untimely and the district court denied the claim as procedurally defaulted.

Willoughby concedes the default but argues cause and prejudice to overcome it.

       “Procedural default” means “a federal court is generally barred from considering an issue

of federal law arising from the judgment of a state court if the state judgment rests on a state-law

ground that is both independent of the merits of the federal claim and an adequate basis for the

state court’s decision.” Stone v. Moore, 644 F.3d 342, 345 (6th Cir. 2011). To overcome it, a

petitioner must “demonstrate cause for the default and actual prejudice as a result of the alleged

violation of federal law[] or demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).

       “[T]he existence of cause for [overcoming] a procedural default must ordinarily turn on

whether the [petitioner] can show that some objective factor external to the defense impeded

counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478,

488 (1986). A petitioner can make this showing if “the factual or legal basis for a claim was not

reasonably available to counsel” or if “some interference by officials made compliance

impracticable.” Id. (citations and quotation marks omitted). Willoughby argued that he was

prevented from developing this claim because all but two of the jurors refused to be interviewed

after the trial, and those who were interviewed did not alert his investigator to Garlington’s Bible

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No. 14-6505, Willoughby v. White


and religiosity. But the Kentucky Supreme Court found that Willoughby had reason to suspect

Garlington’s religiosity and had the opportunity to investigate. Specifically, Garlington’s actions

and statements in open court, evident in the state trial-court record, showed that he was openly and

actively religious, which put Willoughby on notice then—as much or more so than now—that this

was an issue worth investigating with the jurors who did agree to being interviewed. Willoughby

concedes that his investigator did not question those jurors about any religious overtures,

arguments, or activities that might have affected deliberations.       It is not at all certain that

Garlington’s expression of his religious views represented juror misconduct, but even if we assume

that it did, the Kentucky Supreme Court was not unreasonable in its finding that Willoughby had

the opportunity to discover Garlington’s views and develop this claim a long time ago but failed

to do so.

       Willoughby argues that he is not responsible for this failure to investigate or discover

Garlington’s Bible and religiosity during the juror interviews in 1985 and 1988 because the jurors

were not forthcoming about that topic at that time. Therefore, he contends, he is entitled to an

evidentiary hearing in the federal district court so that he can, presumably, establish cause and

prejudice for his failure to raise this claim earlier. Willoughby does not specify the evidence he

intends to produce or hopes to uncover at such a hearing (a shortcoming the district court pointed

out in its opinion), but he asserts that questions “about the manner in which the Bible and its

teachings were used [during deliberations] accentuates the need for an evidentiary hearing at which

these issues can be more fully explored.” See Willoughby’s Apt. Reply Br. at 3. Because the only

people capable of answering those questions, or fully exploring these issues, are the jurors who

were there, this panel is left to surmise that Willoughby wants to compel those jurors to testify

about the effect of Garlington’s Bible and religiosity on their deliberations.




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No. 14-6505, Willoughby v. White


       That is, Willoughby wants a federal court to compel former jurors to testify under oath

while his counsel questions them about their deliberations 36 years ago. But such testimony is not

admissible in either federal or Kentucky state court. See Fed. R. Evid. 606(b)(1) (“During an

inquiry into the validity of a verdict or indictment, a juror may not testify about any statement

made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s

or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment.”);

United States v. Ewing, 749 F. App’x 317, 326 (6th Cir. 2018) (explaining that the Supreme

Court’s treatment of Federal Rule of Evidence 606 “seeks to assure that the private deliberations

of jurors do not become the constant subject of public investigation—to the destruction of all

frankness and freedom of discussion and conference” (quotation marks omitted)); Ky. R. Crim. P.

10.04 (“A juror cannot be examined to establish a ground for a new trial, except to establish that

the verdict was made by lot.”); Bowling v. Kentucky, 168 S.W.3d 2, 7 (Ky. 2004) (“It has long

been the rule that jurors may give evidence to prove that the jury was not guilty of misconduct but

may not impeach the verdict by stating that they acted wrongfully or irregularly.”); Cape Pub.,

Inc. v. Braden, 39 S.W.3d 823, 826 (Ky. 2001) (“Even after completing their service, jurors are

entitled to privacy and to protection against harassment.”).

       We find no basis on which to order a hearing or to grant habeas relief on this claim.

                                                 III.

       The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides the

standard for Willoughby’s other two claims. Under AEDPA, the federal habeas court may

overturn a state court conviction if the last reasoned opinion in a state court to adjudicate the

challenged issue on the merits “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States” or “resulted in

a decision that was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d).

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No. 14-6505, Willoughby v. White


       To prevail under the “contrary to” clause, a petitioner must show that the state court

“arrive[d] at a conclusion opposite to that reached by [the Supreme] Court on a question of law”

or that it “confront[ed] facts that are materially indistinguishable from a relevant Supreme Court

precedent and arrive[d] at a result opposite” to that reached by the Court. Williams v. Taylor,

529 U.S. 362, 405 (2000). To prevail under the “unreasonable application” clause, a petitioner

must show that “the state court identifie[d] the correct governing legal principle from th[e] Court’s

decisions but unreasonably applie[d] that principle to the facts of the [petitioner’s] case.” Id. at

413. For purposes of AEDPA, “clearly established federal law” refers only “to the holdings, as

opposed to the dicta, of th[e] Court’s decisions as of the time of the relevant state-court decision.”

Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quotation marks omitted).

       “[A]n unreasonable application of federal law is different from an incorrect application of

federal law.” Renico v. Lett, 559 U.S. 766, 773 (2010) (quotation marks omitted). It is not enough

that “the federal habeas court might conclude in its independent judgment that the state court

applied clearly established federal law erroneously or incorrectly.” Gagne v. Booker, 680 F.3d

493, 513 (6th Cir. 2012) (en banc) (quotation and editorial marks omitted). The relevant state-

court decision must have applied clearly established federal law in an objectively unreasonable

manner, Renico, 559 U.S. at 773, such that its decision “was so lacking in justification that there

was an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement,” Harrington v. Richter, 562 U.S. 86, 103 (2011).

                                                 A.

       Willoughby claims the prosecutor impermissibly minimized the jurors’ responsibility on

the death-penalty question by phrasing his voir dire questions and closing argument to suggest that

the jurors did not select the death sentence, but merely recommended it to the court, which would

then make the actual determination. The Kentucky Supreme Court found that defense counsel had

                                                  7
No. 14-6505, Willoughby v. White


not objected to these statements during trial, that the phrasing was not as improper as Willoughby

represented, and that it had not misled the jurors as to their responsibility. Willoughby I, 730

S.W.2d at 923-25 (explaining that “no objections were made to any of the questions on voir dire

for the very good reason [that] there was nothing to object to,” and the court’s “reading of the

closing argument convince[d] [it] that the responsibility of the jurors in recommending the death

penalty was not diminished”). As a “determination of the facts,” we cannot conclude that this

considered determination by the Kentucky Supreme Court, based on its review of the record, was

necessarily “unreasonable.” See 28 U.S.C. § 2254(d)(2).

       As an “application of [the] law,” under § 2254(d)(1), the undisputed rule, relevant here, is

that “it is constitutionally impermissible to rest a death sentence on a determination made by a

[juror] who has been led to believe that the responsibility for determining the appropriateness of

the defendant’s death rests elsewhere.” Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985). “To

establish a Caldwell violation, a [petitioner] necessarily must show that the remarks to the jury

improperly described the role assigned to the jury by local law.” Dugger v. Adams, 489 U.S. 401,

407 (1989). Conversely, “if the challenged [statements] accurately described the role of the jury

under state law, there is no basis for a Caldwell claim.” Id. The exact text of the Kentucky statute

says: “the jury shall . . . recommend a sentence for the defendant [and,] [u]pon the findings of the

jury, the judge shall fix a sentence within the limits prescribed by law.” K.R.S. § 532.025(1)(b)

(emphasis added) (as enacted in 1976 and still effective).

       In September 1988, the Kentucky Supreme Court judicially clarified, meaning that it

corrected, this rule for purposes of future Caldwell analyses by holding that in capital cases in

which trial commences after September 8, 1988, “the effective date of the finality of this opinion,”

the word “recommend” may not be used with reference to a jury’s sentencing responsibilities in

voir dire, instructions, or closing argument. Tamme v. Kentucky, 759 S.W.2d 51, 53 (Ky. 1988).

                                                 8
No. 14-6505, Willoughby v. White


The court explained that, in Sanborn, decided June 9, 1988, it had noted that use of the word

“recommend” was not “per se reversible error,” but in Grooms, also decided June 9, 1988, it had

held that the instructions on the penalty phase should require the jury to fix the punishment. Id.

The facts of Tamme compelled the court to “take the next step.” Id. (quotation marks and citations

omitted). Therefore, prior to September 1988, the Kentucky Supreme Court’s (evolving) position

on K.R.S. § 532.025(1)(b) with respect to Caldwell was that the trial court’s instructions must

ensure that the jury would decide the death sentence, with the effect that the “use of the word

‘recommend’ [wa]s not per se reversible error.” Tamme, 759 S.W.2d at 53.

       We must, therefore, put the present case in a temporal context. Willoughby’s three-week

trial was from July 5 to July 26, 1983, and his sentencing was in late August 1983. The Supreme

Court issued Caldwell two years later, on June 11, 1985, and subsequently held that it was a new

rule of constitutional law that is not retroactive on habeas. Sawyer v. Smith, 497 U.S. 227 (1990).

But Caldwell would, and did, apply in Willoughby’s direct appeal, decided December 18, 1986,

and the Kentucky Supreme Court cited it as controlling law on this issue. At that time, however,

still two years prior to Tamme, the Kentucky Supreme Court was still holding that the mere use of

the word “recommend,” “which is in the statute and necessarily the instructions, . . . does not, in

any fashion, diminish or lessen the responsibility of the jury in imposing the death penalty,”

Willoughby I, 730 S.W.2d at 925. And, again, it was not until two years later, in September 1988,

that the Kentucky Supreme Court, after some prior tentative steps, fully changed course, via

Tamme, and prohibited the use of the word “recommend” in Kentucky capital cases. Given this

state of the law, we cannot conclude that Caldwell, in its present formulation, was so clearly

established in December 1986 that the Kentucky Supreme Court’s careful application of it—in

assessing the prosecutor’s conduct three years earlier—was necessarily unreasonable.




                                                9
No. 14-6505, Willoughby v. White


       In its application of Caldwell, the Kentucky Supreme Court considered the prosecutor’s

use of the word “recommend” at trial and sentencing and determined that, as used in context, the

prosecutor did not use it to suggest to the jurors a “diminished responsibility.” Rather, the

prosecutor consistently and repeatedly emphasized to the jurors their “responsibility . . . in

imposing the death penalty.” Willoughby I, 730 S.W.2d at 925. Neither the Kentucky Supreme

Court’s factual determination nor its application of Caldwell was necessarily unreasonable.

       We find no grounds to grant habeas relief on this issue.

                                                 B.

       Willoughby claims the prosecutor (1) argued, without evidentiary support, that

Willoughby, if left alive, posed a danger to prison guards and inmates as well as the outside

population due to the risk of his escape; (2) impermissibly likened Willoughby to notorious

murderers Gary Gilmore, Charles Manson, and Richard Speck; and (3) improperly vouched for

the credibility of prosecution witnesses, investigating police, and prosecutor’s office staff. The

Kentucky Supreme Court found that defense counsel had not objected to the statements during

trial, that they were not as flagrant or improper as Willoughby represented, and that they were not

prejudicial given the totality of the incriminating evidence against Willoughby. Willoughby I, 730

S.W.2d at 925 (stating that “on the whole, the [prosecutor’s closing] argument was [a] fair

comment on the evidence” and likely did not affect the verdict, “[c]onsidering the overwhelming

nature of the evidence against Halvorsen and Willoughby, including their own admissions”).

       For prosecutorial misconduct claims, the prosecutor’s comments must have “so infected

the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v.

Wainwright, 477 U.S. 168, 181 (1986); Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).

This court uses a two-step test, asking whether the comments were improper and, if so, were they

flagrant, based on whether they were misleading to the jury or prejudicial to the petitioner, isolated

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No. 14-6505, Willoughby v. White


or extensive, deliberate or accidental, or overwhelmed by the evidence against the defendant.

Moore v. Mitchell, 708 F.3d 760, 799 (6th Cir. 2013).

       Read in context, the prosecutor’s statements, allegedly about Willoughby, were generic

reasons for imposing the death penalty rather than life imprisonment, based on a hypothetical

inmate, “Frank,” and the threat that Frank would pose to others, and his incentive to escape, while

serving a life sentence. But the prosecutor did not say that Willoughby would personally pose a

threat to inmates or prison personnel, that Willoughby would escape from prison, or that

Willoughby could not be rehabilitated. Similarly, the prosecutor did not actually liken Willoughby

to Gilmore, Manson, or Speck. Rather, in discussing the deterrent effect of a death sentence over

life imprisonment, the prosecutor said that Gilmore (having been executed) was unequivocally

deterred and of no future danger to anyone whereas Manson and Speck (imprisoned for life) were

not.

       The prosecutor’s comments about witnesses, police, and prosecutorial staff urged the jurors

to draw an inference from the evidence presented. They were not unsubstantiated personal

opinions. A prosecutor may not vouch “by indicating a personal belief in the witness’s credibility

thereby placing the prestige of the [prosecutor’s] office [] behind that witness,” United States v.

Francis, 170 F.3d 546, 550 (6th Cir. 1999), but a prosecutor may ask the jury to draw reasonable

inferences of credibility from the evidence presented, United States v. Parker, 49 F. App’x 558,

563 (6th Cir. 2002). That is all that happened in this case, in which the prosecutor backed up any

comments by asking the jurors to recall the testimony that supported the corresponding assertion.

       Read in context, none of the prosecutor’s comments were clearly improper and none of this

commentary could be called flagrant. But we do not review this claim de novo; we review it with

proper deference. Even if we were to disagree with the Kentucky Supreme Court’s assessment of

this commentary, we would set that disagreement aside and consider whether that assessment, even

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No. 14-6505, Willoughby v. White


if mistaken, was reasonably mistaken. Willoughby has not shown that the Kentucky Supreme

Court was unreasonable in finding the comments were neither improper, nor flagrant, nor

necessarily prejudicial when considered alongside the overwhelming evidence of his guilt.

       We find no grounds to grant habeas relief on this issue.

                                               III.

       For the foregoing reasons, we AFFIRM the judgment of the district court.




                                               12
No. 14-6505, Willoughby v. White


       COLE, Chief Judge, concurring in part and dissenting in part. I agree with the majority

that we should affirm the denial of habeas relief as to Willoughby’s first and third claims, though

I would reach that result differently, as explained below. I would, however, conclude that the

prosecutor unconstitutionally minimized the importance of the jury’s role in recommending the

death sentence, and thus I dissent as to Willoughby’s second claim of relief.

       As to Willoughby’s first claim regarding his knowledge of Garlington’s deeply-held

religious beliefs, the majority’s position would require defendants to assume that a juror who is

known to be religious would disregard the court’s instructions and attempt to exert improper

influence over other jurors, rather than base the verdict on the evidence alone.            Such an

assumption—that jurors’ religious beliefs will improperly affect their decisions—runs contrary to

Supreme Court precedent, which acknowledges that even a juror with strong religious beliefs may

“nonetheless subordinate his personal views to what he perceive[s] to be his duty to abide by his

oath as a juror and to obey the law of the State.” Witherspoon v. Illinois, 391 U.S. 510, 514 n.7

(1968). A juror’s religion cannot alone constitute notice that the juror will use extraneous materials

in reaching a verdict, let alone that he or she would attempt to induce other jurors to do the same.

       Here, Garlington’s responses during voir dire gave Willoughby no reason to believe that

Garlington would be guided by anything other than the facts and the law presented to him;

repeatedly, Garlington provided answers that assuaged any concerns that his religious beliefs

would impact his role as a juror. Twenty years later, Garlington made statements that—for the

first time—indicated that his religious beliefs may have led him to improperly influence the

verdict. Garlington admitted that he read passages from the Bible to the other jurors every day of

the trial and deliberations, including a passage that states: “The face of the Lord is against them

that do evil, to cut off the remembrance of them from the earth,” and “Evil shall slay the wicked;

and those who hate the righteous will be condemned.” (Pleadings, Vol. 1 of 1, p. 32, ¶ 5; Appellant

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No. 14-6505, Willoughby v. White


Br. 22 (quoting Psalm 34:8, 15–16, 21–22, The Holy Bible, King James Version).) When this

information came to light, and another juror recalled that Garlington was “pro death” and had

conducted prayers with the jury (Pleadings, Vol. 1 of 1, p. 32, ¶ 8), Willoughby filed a post-

judgment motion regarding the claim now before this court, requesting an evidentiary hearing to

show cause and prejudice to excuse his procedural default. The district court denied Willoughby’s

request for an evidentiary hearing.

       The majority contends there is no basis for an evidentiary hearing because juror testimony

about the import of Garlington’s actions would be inadmissible, citing federal and Kentucky law

that generally prohibits juror testimony about deliberations. (Maj. Op. 5–6.) But Willoughby

alleges that reading pro-death passages from the Bible during deliberations amounted to an

external prejudicial influence on jurors, and both federal and Kentucky law provide exceptions for

juror testimony about extraneous prejudicial information. The text of the federal rule expressly

states that a “juror may testify about whether . . . extraneous prejudicial information was

improperly brought to the jury’s attention[.]” Fed. R. Evid. 606(a)(2)(A). And Kentucky courts

have held that, when a criminal defendant alleges that “extraneous information by way of an overt

act”—such as jurors’ use of a dictionary, Commonwealth v. Wood, 230 S.W.3d 331, 334 (Ky. Ct.

App. 2007)—“was, allegedly, improperly interjected into the jury deliberation process[,]” such an

“allegation falls within the constitutional exceptions to RCr 10.04 that, upon a proper presentation

to the court, would justify further inquiry in the form of an evidentiary hearing.” Commonwealth

v. Abnee, 375 S.W.3d 49, 55 (Ky. Ct. App. 2012).

       Thus, I part ways with the majority in two critical respects on Willoughby’s first claim: I

believe that the district court erred in finding that Garlington’s expression of his religious belief

placed Willoughby on notice that he used the Bible as an extrinsic source in the jury room during




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No. 14-6505, Willoughby v. White


deliberations, and that the district court could have ordered the jurors to testify about any

prejudicial impact this external source had on their deliberations.

        But the decision to grant an evidentiary hearing is ultimately left to the district court’s

discretion, and “[i]n deciding whether to grant an evidentiary hearing, a federal court must consider

whether such a hearing could enable an applicant to prove the petition’s factual allegations, which,

if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550 U.S. 465,

473–74 (2007). Below, Willoughby argued that an evidentiary hearing was required for the

purpose of recalling two jurors he had already interviewed, neither of whom provided any

information in the first interview to suggest Garlington’s readings had influenced their verdict.

I would conclude that the district court did not abuse its discretion in concluding that Willoughby’s

request to recall two jurors he had already questioned would not enable him to establish cause and

prejudice. Willoughby III, 2014 WL 4269115, at *17 (E.D. Ky. Aug. 29, 2014). Consequently,

I concur with the majority as to Willoughby’s first claim.

        As to Willoughby’s second claim, the Supreme Court held in Caldwell v. Mississippi that

“it is constitutionally impermissible to rest a death sentence on a determination made by a

sentencer who has been led to believe that the responsibility for determining the appropriateness

of the defendant’s death rests elsewhere.” 472 U.S. 320, 328–29 (1987). The policy reasons

behind this holding are oft-cited and beyond debate, but they bear repeating. “In the capital

sentencing context there are specific reasons to fear substantial unreliability as well as bias in favor

of death sentences when there are state-induced suggestions that the sentencing jury may shift its

sense of responsibility to an appellate court.” Id. at 330. Indeed, “the uncorrected suggestion that

the responsibility for any ultimate determination of death will rest with others presents an

intolerable danger that the jury will in fact choose to minimize the importance of its role.” Id. at

333. “[O]ne can easily imagine that in a case in which the jury is divided on the proper sentence,

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No. 14-6505, Willoughby v. White


the presence of appellate review could effectively be used as an argument for why those jurors

who are reluctant to invoke the death sentence should nevertheless give in.” Id. Furthermore,

Caldwell emphasized that it is “plausible to believe that many jurors will be tempted to view these

respected legal authorities as having more of a ‘right’ to make such an important decision than has

the jury.” Id.

       As the majority acknowledges, although Caldwell was decided after Willoughby’s trial,

“Caldwell would, and did apply in Willoughby’s direct appeal, decided December 18, 1986[.]”

(Maj. Op. 9.) Where the majority is mistaken, however, is in its misreading of Kentucky state law.

Rather than acknowledge Kentucky law in its entirety, the majority relies wholly on the fact that

Tamme v. Kentucky, 759 S.W.2d 51 (Ky. 1988)—a case that explicitly held that prosecutors could

not use the word “recommend” with reference to a jury’s sentencing responsibilities—had not yet

been decided. The majority thus posits that at the time of Willoughby’s direct appeal, “still two

years prior to Tamme, the Kentucky Supreme Court was still holding that the mere use of the word

‘recommend,’ ‘which is in the statute and necessarily the instructions, . . . does not in, any fashion,

diminish or lessen the responsibility of the jury in imposing the death penalty[.]’” (Maj. Op. 9

(emphasis added) (citing Willoughby I, 730 S.W.2d 921, 925 (Ky. 1986)).) The majority’s position

contains two critical flaws: first, the majority’s characterization of the caselaw is left wanting; and

second, the prosecutor did not “merely” use the word recommend in this case.

       A quick review of both Kentucky law and Supreme Court precedent is instructive. In the

years prior to Tamme, the Kentucky Supreme Court recognized that prosecutors’ use of the word

“recommend” in certain situations improperly diminished jurors’ responsibility in capital cases.

Id. (“Despite this Court’s efforts to map out the territory of permissible use of the word

‘recommend,’ prosecutors continue to nudge at the boundary of abuse.”) In 1984, two years prior

to Willoughby’s direct appeal, the Kentucky Supreme Court held in Ice v. Commonwealth that

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“emphasis on the jury’s sentence as only a recommendation is improper.” 667 S.W.2d 671, 676

(Ky. 1984).

       The next year, in 1985, the Supreme Court decided Caldwell, and shortly thereafter the

Kentucky Supreme Court held in Ward v. Commonwealth that the government had “committed a

grievous error by repeatedly minimizing the responsibility of the jury in assessing the death

penalty.” 695 S.W.2d 404, 407 (Ky. 1985). The Kentucky Supreme Court continued:

       We are totally aware that the statute relating to capital offenses—KRS
       532.025(1)(b)—provides that the jury shall “recommend a sentence for the
       defendant.” However, the death penalty cannot be assessed by any judge unless
       recommended by the jury, so the responsibility of the jury in such cases remains
       undiminished.
       …

       It is the responsibility of each juror to decide whether the defendant will be
       executed, and they shall not be informed, either directly or by implication, that this
       responsibility can be passed along to someone else. The mere fact that the statute
       provides for jury recommendation cannot be utilized as a license to induce the jury
       to disregard its responsibility

Id. at 407–08 (emphasis in original).

       The Kentucky Supreme Court also decided Kordenbrock v. Commonwealth that same year.

There, the court found that although “[t]he word ‘recommend’ was used, [it was] not to such an

extent as to denigrate the responsibility of the jury in imposing a death penalty.” 700 S.W.2d 384,

389 (Ky. 1985). And finally, the Supreme Court decided Darden v. Wainwright several months

before the Kentucky Supreme Court heard Willoughby’s direct appeal, reiterating that Caldwell

applies to comments “that mislead the jury as to its role in the sentencing process in a way that

allows the jury to feel less responsible than it should for the sentencing decision.” 477 U.S. 168,

183 n.15 (1986).

       It is against that background that we consider Willoughby’s case. Here, there is no doubt

that the prosecutor repeatedly and unequivocally attempted to minimize the jurors’ role. During

voir dire, prosecutors emphasized to eight of the twelve jurors that a jury’s role in a death penalty
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case was to recommend the imposition of the death sentence to the judge. For some jurors, the

prosecutor clearly insinuated that the final responsibility of the sentence would not rest with the

jury. (See TT Vo. 4, p. 586–87 (Q: “Do you understand that in a sentencing—in the sentencing

format of this—of this case if you’re selected as a juror, that you would recommend a sentence to

the judge and not set the sentence?) (emphasis added); TT Vo. 7, p. 917 (Q: “…The jury, after

hearing testimony and evidence, if they find the defendants guilty, when they set a penalty, they

simply recommend that penalty to the judge…”) (emphasis added).) And it is clear from the trial

transcript that based on the prosecutor’s statements, the jurors did in fact feel a diminished sense

of responsibility:

        Q: …Could you distinguish between the two [defendants] and reach different levels
        of verdict of guilty? You’ll have the option, I believe, of finding the defendants
        guilty of any one of a series of degrees of offenses? Could you find them guilty of
        different levels of -- of an offense?
        A: Like I said, it’s according on [sic] what they had done and the show the proof of
        it. [sic] Then I could probably rule on it that way.
        Q: You could distinguish between the two?
        A: Yes.
        Q: Could you fix different sentences for them?
        A: Well I could probably fix different sentences, but I didn’t think it would be left
        up to me to----
        Q: You could recommend it?
        A: Yeah, I could recommend it, say it like that, you know.

(TT Vol. 5, p. 724–25 (emphasis added).)

        The prosecutor’s attempt to minimize the jury’s role continued into his closing arguments

at sentencing, where he described the jury’s verdict as a “recommendation” on twenty occasions.

(See, e.g., TT. Vol. 5, p. 2561 (“I anticipate that . . . in the final arguments[] the defense attorneys

will attempt to make you feel like you are murderers if you return a recommendation of death … Is

Judge Angelucci a murderer should he decide to follow your recommendation that the death

penalty is the proper penalty in this case?”).)
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No. 14-6505, Willoughby v. White


       The record thus makes it clear that the prosecutor’s aim was to minimize the jury’s role in

sentencing repeatedly, not to “merely” read the word “recommend” as it is articulated in the

Kentucky statute. Yet the Kentucky Supreme Court held, with no analysis, that “[n]o such

minimizing of the jury’s sense of responsibility occurred in this case in the voir dire or the closing

argument.” Willoughby I, 730 S.W.2d at 924. The majority attempts to defend this holding, stating

that “we cannot conclude that Caldwell, in its present formulation, was so clearly established in

December 1986 that the Kentucky Supreme Court’s careful application of it . . . was necessarily

unreasonable.” (Maj. Op. 9.) But nothing about the Kentucky Supreme Court’s application was

careful, let alone reasonable. While use of the word “recommend” was not per se reversible error

at the time, the state of the law in Kentucky in 1986 was still clear: use of the word “recommend”

in describing the jury’s role was permissible, as the Kentucky statute specified, as long as there

was no attempt by prosecutors to minimize jurors’ role in a way that led them to feel that they had

a reduced role in the sentencing process. Failing to recognize that in this case, the Kentucky

Supreme Court unreasonably applied clearly established law. And the majority incorrectly

endorsed this approach.

       At base, the prosecutor’s statements in this case are exactly what Caldwell aimed to protect

against—a jury that did not feel the full weight of their “truly awesome responsibility” in

recommending a death sentence. 472 U.S. at 341. The Kentucky Supreme Court’s one-sentence

finding was an unreasonable application of Caldwell. Accordingly, I depart from the majority on

this issue and would reverse and remand to the district court.

       Finally, I turn to Willoughby’s claim of prosecutorial misconduct during sentencing. To

show prosecutorial misconduct, Willoughby must demonstrate two things: (1) initially, he must

show that the prosecution’s conduct was improper; and then, if he meets that hurdle, (2) that the

conduct was so flagrant as to warrant reversal. Bates v. Bell, 402 F.3d 635, 641 (6th Cir. 2005).

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No. 14-6505, Willoughby v. White


The majority makes serious errors in addressing both of these elements, making some additional

analysis necessary.

       In addressing whether the prosecutor’s statements were improper, the Kentucky Supreme

Court concluded that although “[b]rief portions of the [prosecutor’s] argument were irrelevant, []

on the whole, the argument was fair comment on the evidence.” Willoughby I, 730 S.W.2d at 925.

Likewise, the majority finds, without citation, that “[r]ead in context, none of the prosecutor’s

comments were clearly improper[.]”       (Maj. Op. 11.)     But in Darden, the Supreme Court

condemned the prosecutor’s closing arguments as “undoubtedly” improper, which included

comments that “implied [] the death penalty would be the only guarantee against a future similar

act.” 477 U.S. at 180. Here, as was the case in Darden, the prosecutor argued that a death sentence

was the only way to keep the public and inmate population safe, alluded to Willoughby’s potential

escape, and questioned whether the jurors “want[ed] to establish a standard in [Lexington] that

you can murder three people in cold blood and have no legitimate fear of the death penalty?” (TT

Vol. 18, p. 2560.) Furthermore, the prosecutor likened Willoughby to notorious killers, including

Gary Gilmore, Charles Manson, Richard Speck, and Martin Luther King, Jr.’s assassin. Under our

precedent, these comments were clearly improper. See Darden, 477 U.S. at 180 (prosecutor’s

comments that sentencing defendant to death was the only way to ensure he would not escape from

prison or harm others was improper); Goff v. Bagley, 601 F.3d 445, 480 (6th Cir. 2010) (finding

prosecutor’s comments about the jury setting society’s standards of behavior improper); Beuke v.

Houk, 537 F.3d 618, 649 (6th Cir. 2008) (holding that the prosecutor made improper statements

“calculated to incite the passions and prejudices of the jurors,” when he appealed to the juror’s

fears that the defendant would commit additional crimes if he was eventually released from

prison).




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No. 14-6505, Willoughby v. White


       This, however, does not end the inquiry. We must also look to see if the challenged conduct

can be considered flagrant. Millender v. Adams, 376 F.3d 520, 526 (6th Cir. 2004). In so doing,

we consider four factors: (1) the likelihood that the remarks of the prosecutor tended to mislead

the jury or prejudice the defendant; (2) whether the remarks were isolated or extensive; (3) whether

the remarks were deliberately or accidentally made; and (4) the total strength of the evidence

against the defendant. Bates, 402 F.3d at 641.

       In describing the fourth factor, the majority looks to whether the improper statements were

“overwhelmed by the evidence against the defendant.” (Maj. Op. 11.) Similarly, the Kentucky

Supreme Court found that, in light of “the overwhelming nature of the evidence” against

Willoughby, including his own admissions, “we do not think that the prosecutor’s argument

exceeded the bounds of propriety, nor do we think that it could have added much fuel to the fire

anyway.” Willoughby I, 730 S.W.2d at 925 (internal citations omitted).

       In both instances, reliance on the “overwhelming nature of the evidence” was improper.

“In the context of a death penalty sentencing hearing,” as opposed to a traditional trial, “[r]ather

than determining whether a constitutional error would have pushed a jury from a ‘not guilty’

verdict to a ‘guilty’ verdict, we must ascertain whether the constitutional error influenced the jury’s

decision between life and death.” Bates, 402 F.3d at 641. Thus, the Kentucky Supreme Court’s

and the majority’s reliance on the overwhelming evidence of Willoughby’s guilt is irrelevant to

the key question—whether the prosecutor’s comments influenced the jury’s decision between

sentencing Willoughby to life imprisonment versus death. See id. at 648–49.

       Properly understood, the fourth factor asks whether the improper comments “were so

egregious as to ‘preclude the jury’s proper consideration of mitigation.’” Broom v. Mitchell, 441

F.3d 392, 414 (6th Cir. 2006) (quoting Bates, 402 F.3d at 649). If the court were hearing this case

on direct appeal, I believe the evidence in this case could lead us to conclude that the prosecutor’s

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No. 14-6505, Willoughby v. White


statements were sufficiently egregious. But this case is before us on a petition for a writ of habeas

corpus, “[s]o the relevant question is not whether the [Kentucky Supreme Court’s] decision was

wrong, but whether it was an unreasonable application of clearly established federal law.” Macias

v. Makowski, 291 F.3d 447, 454 (6th Cir. 2002). Bound by that deferential standard, I thus concur

with the majority’s ultimate conclusion that the Kentucky Supreme Court was not objectively

unreasonable in determining that no “grave doubt as to the harmlessness of the error” existed in

this case, given the prosecutor’s reference to other proper aggravating factors at sentencing and

the comparatively minimal mitigating factors presented to the jury. Bates, 402 F.3d at 649 (internal

quotation marks and citation omitted); see also Beuke, 537 F.3d at 650. .

       As explained above, I concur in the denial of habeas relief as to Willoughby’s first and

third claims. But as to the second claim, “[t]his Court has always premised its capital punishment

decisions on the assumption that a capital sentencing jury recognizes the gravity of its task and

proceeds with the appropriate awareness of its ‘truly awesome responsibility.’”            Caldwell,

472 U.S. at 341. Here, the prosecutor repeatedly “sought to minimize the jury’s sense of

responsibility for determining the appropriateness of death,” such that it affected the fundamental

fairness of Willoughby’s sentence proceeding. Id. The correct course is thus to reverse and

remand to the district court on this issue, with instructions to grant Willoughby’s petition for

habeas corpus. Accordingly, I respectfully dissent as to Willoughby’s second claim for relief.




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