Matthews v. Parker

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0163p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Petitioner-Appellant, -
DAVID EUGENE MATTHEWS,
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No. 09-5464
v.
,
>
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PHILIP PARKER, Warden, Kentucky State

Respondent-Appellee. -
Penitentiary,
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Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 99-00091—John G. Heyburn II, District Judge.
Argued: November 30, 2010
Decided and Filed: June 27, 2011
Before: SILER, MOORE, and CLAY, Circuit Judges.

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COUNSEL
ARGUED: Alan Michael Freedman, MIDWEST CENTER FOR JUSTICE, Evanston,
Illinois, for Appellant. Matthew R. Krygiel, OFFICE OF THE KENTUCKY
ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee. ON BRIEF: Alan
Michael Freedman, MIDWEST CENTER FOR JUSTICE, Evanston, Illinois, Susan M.
J. Martin, East Brunswick, New Jersey, for Appellant. Matthew R. Krygiel, OFFICE OF
THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.
CLAY, J., delivered the opinion of the court, in which MOORE, J., joined.
SILER, J. (pp. 51–57), delivered a separate opinion concurring in part and dissenting in
part.

1
No. 09-5464 Matthews v. Parker Page 2

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OPINION
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CLAY, Circuit Judge. Petitioner David Eugene Matthews, who was sentenced
to death for murder by the State of Kentucky, appeals the district court’s order denying
Petitioner’s claims and dismissing his petition for a writ of habeas corpus filed pursuant
to 28 U.S.C. § 2254. For the reasons set forth below, we AFFIRM in part and
REVERSE in part.

BACKGROUND

I. Factual Background

On June 29, 1981, Petitioner David Eugene Matthews (“Matthews” or
“Petitioner”) shot his estranged wife Mary Marlene Matthews (“Marlene”), and his
mother-in-law Magdalene Cruse (“Magdalene”) with a .22 caliber revolver fired from
no more than eighteen inches away. The murders took place in the house Petitioner had
previously shared with his wife before moving out a few weeks prior to the murders.

Petitioner and Marlene had been married for approximately two and a half years
before the murders. Their marriage was tumultuous, and the couple separated often.
During these separation periods, Petitioner moved out of the couple’s home that they
rented from Marlene’s family, and moved in with his mother a few blocks away. The
Kentucky Supreme Court found that “[t]hese separations were marked by extreme
hostility,” Matthews v. Commonwealth, 709 S.W.2d 414, 417 (Ky. 1985) (“Matthews I”),
and Marlene would often yell at Petitioner from across the street. See id.

Marlene also frequently “swore out criminal warrants against [Petitioner] for
harassment.” Id. In the five weeks preceding the murders, Marlene swore out two
warrants against Petitioner. One charged Petitioner with sexually abusing Marlene’s six-
year-old daughter, Petitioner’s step-daughter. The second warrant charged Petitioner
with burglary, for breaking and entering into Marlene’s residence. Petitioner was
No. 09-5464 Matthews v. Parker Page 3

arrested pursuant to the first warrant, and released under a court order forbidding him
from further contacting Marlene. Petitioner was not served with the second warrant until
after the murders.

The Matthews and Cruse families also had a tense relationship. Magdalene often
called and “harassed” Petitioner’s mother, Margaret Laverne Matthews (“Laverne”), on
the telephone. Laverne also often told Petitioner fabrications about Marlene’s
promiscuity in an effort to come between them.

On the evening of June 28, 1981, the night preceding the murders, Petitioner
went to a bar with Carol Engel, a woman he had been seeing during the weeks leading
up to the crimes, and drank heavily. Petitioner also took Dexedrine and Valium.
Additionally, after drinking and taking pills, Petitioner asked Engel to borrow fifty
dollars because he wanted to purchase a gun to protect his mother from the Cruse family.
Engel lent him the money.

According to the Kentucky Supreme Court, “[i]n the account of the events on the
night of the murder given by [Petitioner] to the psychiatrist, [Petitioner] said that he
broke into his wife’s home at about 1:00 or 2:00 a.m. He found his mother-in-law in bed
and shot her” in the head. Matthews I, 709 S.W.2d at 417. Petitioner left Magdalene
mortally wounded. Magdalene died later that day.

After shooting his mother-in-law, Petitioner “went into the next room, had sexual
relations one or two times with his wife, stayed with her until about 6:00 a.m., and shot
and killed her.” Id. According to the evidence presented to the Kentucky trial court
through Petitioner’s psychiatrist, Petitioner “shot his wife twice because he thought he
had missed the first time.” Id.

The following morning, Lawrence Cruse (“Cruse”), Marlene’s father and
Magdalene’s husband, went to Marlene’s home. Cruse found a pocketknife on the
steps, and observed that the side door screen had been cut and the glass broken. See id.
Once inside, he found Magdalene mortally wounded, and Marlene’s twice-shot body.
No. 09-5464 Matthews v. Parker Page 4

Upon leaving Marlene’s house, Petitioner returned to his mother’s house. After
telling his mother that he had shot Marlene and all of his problems were over, he
disposed of the gun in the yard, asked his mother to wash his clothes, took some Valium
pills, and went to sleep. The police arrived later that day, and informed Petitioner that
he was suspected of murdering Marlene and Magdalene. Petitioner denied his
involvement in the murders, but cooperated with the police. The police recovered the
gun from Petitioner’s mother’s house that day, and took Petitioner into custody.

Subsequently, Petitioner was indicted for both murders, and for burglary.

II. Procedural History

Petitioner was arrested on June 29, 1981. On August 18, 1981 a grand jury
indicted Petitioner for the murders of Mary Marlene Matthews, and Magdalene Cruse,
and the burglary of Marlene’s home. (See App. at 45, Pet. for a Writ of Habeas Corpus.)
Petitioner’s trial, which was bifurcated into culpability and penalty phases, began in
November 1982. The culpability phase lasted four days and resulted in convictions for
both murders and the burglary. The penalty phase lasted only one afternoon and resulted
in sentences of a term of years for the burglary, and death for each of the murders.

On direct review, Petitioner raised 37 assignments of error. These included,
“arguments relat[ing] to the statutory construction and administration of Kentucky’s
death penalty statute;” “[e]vidence of the burglary warrant and the sexual abuse warrant
taken out before the murders should not have been admitted;” “[Petitioner’s]
presentation of evidence of domestic conflict occurring before the murders took place
was unduly limited;” “[t]estimony admitted on cross examination of [Petitioner’s]
psychiatrist violated the psychologist/patient privilege;” “[t]he evidence did not sustain
using the burglary charge as an aggravating factor justifying the death penalty;” “[t]he
evidence did not sustain using multiple murders as an aggravating factor justifying the
death penalty, and the jury’s findings were insufficient on this point;” “use of the word
‘recommend’ . . . in the court’s [death penalty] instructions [to the jury] was error;”
“[t]he trial court failed to adequately instruct the jury when the jury inquired about
No. 09-5464 Matthews v. Parker Page 5

parole;” and “[t]he trial judge used improper and erroneous considerations in imposing
sentence.” Matthews I, 709 S.W.2d at 418.

Petitioner’s direct appeal culminated on September 26, 1985 when the Kentucky
Supreme Court affirmed Petitioner’s conviction, and rejected all of Petitioner’s
assignments of error. Although the Kentucky Supreme Court’s opinion only analyzed
eight issues at length, the court stated that it “considered all of the[] issues [Petitioner
raised] . . . . As to those [the Kentucky Supreme Court] d[id] not discuss, [the court]
note[d], for the record, that they have been considered and rejected.” Id. at 417.

In December 1986, Petitioner filed a “Motion to Set Aside, Correct or Vacate
Judgment” pursuant to Kentucky Rule of Criminal Procedure 11.42 (“RCr 11.42”) in the
Jefferson Circuit Court. The Kentucky trial court initially denied Petitioner’s RCr 11.42
motion for post-conviction review. See Matthews v. Commonwealth, No. 81-CR-0915
(Jefferson Cir. Ct., Aug. 10, 1990). Counsel, however, successfully moved the trial court
to reconsider its order. On December 23, 1991, the Kentucky trial court vacated
Petitioner’s death sentence, finding that the penalty phase jury instruction lessened the
jury’s sense of moral responsibility for Petitioner’s sentence, and was, therefore,
defective. (See App. at 45, Matthews v. Commonwealth, No. 81-CR-0915 (Jefferson Cir.
Ct., Dec. 23, 1991) (order vacating death sentence).)

In a new action, the Commonwealth appealed the Kentucky trial court’s order
vacating Petitioner’s death sentence. In this appeal, the Kentucky Supreme Court
reversed the trial court’s vacatur of Petitioner’s death sentence, and ordered the
Kentucky trial court to examine all of the issues raised on Petitioner’s motion for
reconsideration. See Commonwealth of Ky. v. Hon. Ken Conliffe and David Eugene
Matthews, 92-SC-732-OA (Ky. Dec. 17, 1992) (unpublished). On remand, with a new
judge presiding, the trial court denied Petitioner’s motion for reconsideration. Petitioner
appealed. His motion for reconsideration was first denied on November 20, 1997, and
denied again on rehearing on March 19, 1998. See Matthews v. Commonwealth, No. 96-
SC-805-MR (Ky. Nov. 20, 1997) (unpublished). Petitioner’s direct appeal and state
No. 09-5464 Matthews v. Parker Page 6

collateral review culminated on October 5, 1998 when the United States Supreme Court
denied his petition for a writ of certiorari.

Petitioner filed a petition for a writ of habeas corpus in the district court on
February 12, 1999, pursuant to 28 U.S.C. § 2254. In his initial petition, Petitioner raised
46 grounds for relief, several of which had numerous sub-parts. These included several
ineffective assistance of counsel claims; claims regarding the jury instructions in the
penalty phase; claims regarding improper exclusion of mitigation evidence, and
improper inclusion of irrelevant evidence; as well as failure to grant a directed verdict
on the murder charges, among others.

On May 7, 1999, Petitioner filed an amended habeas petition, requesting relief
on several additional grounds. These included: (1) a claimed Brady violation for failing
to disclose to the defense that Petitioner was on a powerful anti-psychotic while in jail
awaiting trial; (2) that racial animus impermissibly tainted the Kentucky state court
proceeding; and (3) that the length of Petitioner’s post-sentencing, pre-execution
confinement renders capital punishment disproportionate to the offense in violation of
the Eighth Amendment. (See App. at 341-84, Am. Pet. for a Writ of Habeas Corpus.)

On April 20, 2000, during the pendency of his petition in the district court,
Petitioner filed a second RCr 11.42 motion for post-conviction review in Kentucky state
court. This RCr 11.42 motion asserted several new claims for relief. In response, the
district court dismissed Petitioner’s habeas petition on August 1, 2001, for failure to
exhaust state court remedies. However, after this Court’s decision in Palmer v.
Carleton, 276 F.3d 777, 781 (6th Cir. 2002) (stating that it “is eminently reasonable” for
“a district court [to] dismiss only the unexhausted claims in the habeas petition and stay
further proceedings on the remaining portion until the petitioner has exhausted his/her
remedies in state court” to avoid “the preclusion of a timely-filed petition for the writ
due to the need to accord state courts the opportunity to adjudicate claims”), the district
court issued Petitioner a certificate of appealability on the dismissal issue. Petitioner
appealed, and we remanded his habeas petition to the district court for further
consideration in light of Palmer. In the interim, the Kentucky Supreme Court denied
No. 09-5464 Matthews v. Parker Page 7

Petitioner’s amended RCr 11.42 petition. Petitioner had thus exhausted all available
state remedies on all of his claims on remand, and in March and July of 2006 the district
court conducted evidentiary hearings on Petitioner’s habeas petition. (See App. at 630-
31, Mem. Op.)

The district court referred Petitioner’s habeas petition to a magistrate judge for
a report and recommendation. In a 220 page report, the magistrate judge recommended
granting Petitioner’s habeas petition on two grounds. These were that:

1) the trial court[] fail[ed] to grant a directed verdict on the murder
counts where the Commonwealth did not prove the absence of extreme
emotional disturbance beyond a reasonable doubt, as required by the
then-applicable Kentucky murder statute; and 2) appellate counsel
fail[ed] to argue on direct appeal that the term ‘extreme emotional
disturbance’ should have been, but was not, defined in the jury
instructions in either the guilt or penalty phase of Matthews’ trial.

(Id. at 410, Rep. and Recommendation.) The district court nevertheless denied
Petitioner’s habeas petition stating that “[w]hat is required constitutionally are fair
procedures and evidence sufficient to warrant the trial’s sanction . . . the [district] [c]ourt
believes that . . . the Kentucky courts have met these basic requirements of constitutional
fairness and justice.” (Id. at 632, Mem. Op.)

Although the district court denied Petitioner’s petition in toto, on March 20,
2009, the district court granted Petitioner a certificate of appealability on three grounds.
The district court found that reasonable jurists could disagree with its resolution of the
claims concerning:

(1) the trial court’s failure to grant a directed verdict on the murder
counts based on the Commonwealth’s alleged lack of proof on the
extreme emotional disturbance element; . . . (2) appellate counsel’s
alleged ineffectiveness for failing to argue that the term “extreme
emotional disturbance” should have been, but was not, defined in the jury
instructions in either the guilt or penalty phases of Matthews’ trial; . . .
[and] (3) Matthews’ claim that the prosecutor engaged in prosecutorial
misconduct during the closing statements in the guilt phase by
denigrating the defense of extreme emotional disturbance thereby
denying Matthews a fundamentally fair trial.
No. 09-5464 Matthews v. Parker Page 8

(Id. at 261, Order Granting Limited Certificate of Appealability.) The district court
stated that “[t]he remainder of the claims presented by Matthews were clear-cut and
easily addressed. The [district] [c]ourt [was] persuaded that reasonable jurists would not
debate the correctness of its assessment of these claims.” (Id.)

On May 26, 2009, this Court granted Petitioner an expanded certificate of
appealability. As expanded, the certificate of appealability included: (1) whether
Petitioner’s trial counsel were ineffective in investigating, preparing and presenting
penalty phase evidence; (2) whether Petitioner’s trial counsel were ineffective in failing
to try to introduce evidence of Petitioner’s extreme emotional distress (“EED”) in the
penalty phase that the trial court had excluded in the culpability phase; (3) whether
Petitioner’s trial counsel were ineffective in failing to object to the prosecutor’s
misstatements of the law of EED in both the culpability and penalty phases; (4) whether
the trial court’s exclusion of additional evidence of Petitioner’s EED violated his
constitutional rights to present a defense in the culpability phase and a fair and reliable
sentence in the penalty phase; (5) whether Kentucky’s murder statute was
unconstitutionally vague on its face and as applied to Petitioner because EED was
neither defined by statute or case law; and (6) whether Petitioner’s appellate counsel
were ineffective.

Petitioner filed this timely appeal, asserting all of the grounds for relief contained
in the expanded certificate of appealability.

DISCUSSION

I. Standards of Review

Petitioner asserts six grounds for habeas relief in the instant appeal: (1) that the
state violated clearly established federal law by failing to prove all of the elements of
murder as defined under Kentucky law at the time of his trial; (2) prosecutorial
misconduct; (3) ineffective assistance of trial counsel; (4) unconstitutional exclusion of
mitigation evidence in his trial’s penalty phase; (5) that the Kentucky murder statute was
unconstitutionally vague; and (6) ineffective assistance of appellate counsel.
No. 09-5464 Matthews v. Parker Page 9

In reviewing the district court’s decision regarding Petitioner’s claims that the
state failed to prove all of the elements of murder; prosecutorial misconduct;
unconstitutional exclusion of mitigation evidence; and that the Kentucky murder statute
was unconstitutionally vague, we review the district court’s finding of facts for clear
error and questions of law de novo. See Haliym v. Mitchell, 492 F.3d 680, 689 (6th Cir.
2007); Campbell v. Coyle, 260 F.3d 531, 539 (6th Cir. 2001).

However, “[b]ecause an ineffective assistance of counsel claim involves mixed
questions of law and fact,” Harries v. Bell, 417 F.3d 631, 636 (6th Cir. 2005), in
reviewing Petitioner’s ineffective assistance of trial and appellate counsel grounds for
relief, “we review the district court’s disposition of the claim de novo and its findings
of fact for clear error.” Id.

II. Legal Framework

Petitioner filed his petition for a writ of habeas corpus in 1999, after the April 24,
1996 effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”)
amendments to 28 U.S.C. § 2254. Petitioner’s petition is thus governed by AEDPA.

As amended by AEDPA, section 2254(d) states:

[a]n application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim—(1) resulted in a
decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of
the United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented
in the State court proceeding.

A decision is “contrary to . . . clearly established federal law” pursuant to section
2254(d)(1) if “the state court arrives at a conclusion opposite to that reached by the
Supreme Court on a question of law or if the state court decided a case differently than
the Supreme Court on a set of materially indistinguishable facts.” Lundgren v. Mitchell,
440 F.3d 754, 762 (6th Cir. 2006) (quoting Williams v. Taylor, 529 U.S. 362, 413
No. 09-5464 Matthews v. Parker Page 10

(2000)). A state court decision “involved an unreasonable application of clearly
established federal law” pursuant to section 2254(d)(1) if “the state court identifie[d] the
correct governing legal principle but unreasonably applies that principle to the facts of
the prisoner’s case. Clearly established Federal law, as determined by the Supreme
Court of the United States, refers to the holdings, as opposed to the dicta, of the Supreme
Court’s decisions as of the time of the relevant state[]court decision.” Id. at 763 (quoting
Williams, 529 U.S. at 412). Finally, pursuant to AEDPA, “the factual findings of a state
court are presumed to be correct and can only be contravened if Petitioner can show by
clear and convincing evidence that they are erroneous.” Id. (citing 28 U.S.C.
§ 2254(e)(1)).

III. Procedural Default

Prior to addressing the merits of Petitioner’s claims, we must determine whether
the claims are properly before us, or if they have been procedurally defaulted.
Respondent does not contend that Petitioner procedurally defaulted any of the following
claims: that the state failed to prove all of the elements of murder; prosecutorial
misconduct; ineffective assistance of trial counsel; unconstitutional exclusion of
mitigation evidence; and that the Kentucky murder statute was unconstitutionally vague.
A respondent failing to raise his procedural default challenge waives it. See Baze v.
Parker, 371 F.3d 310, 320 (6th Cir. 2004) (“The state may waive a defense,” including
procedural default, “by not asserting it.”). Therefore, with respect to these claims, to the
extent that Petitioner may have defaulted any of the issues, Respondent has waived its
procedural default defense.

Respondent does, however, assert that Petitioner procedurally defaulted his
ineffective assistance of appellate counsel claim. Petitioner raised his ineffective
assistance of appellate counsel claim for the first time in his federal habeas corpus
petition. However, by definition, Petitioner could not have raised his ineffective
assistance of appellate counsel claim on direct appeal. Furthermore, according to
Kentucky law, Petitioner could not have raised this claim in his state post-conviction
motion. The Kentucky Supreme Court has stated that “claims of ineffective assistance
No. 09-5464 Matthews v. Parker Page 11

of appellate counsel . . . cannot be raised in a RCr 11.42 motion.” Taylor v.
Commonwealth, 63 S.W.3d 151, 165 (Ky. 2001). Petitioner’s habeas petition was his
first opportunity to raise his ineffective assistance of appellate counsel claim, and he did
not procedurally default this claim by not previously raising it.

Because we are satisfied that Petitioner did not procedurally default any of his
grounds for habeas relief, we will address the merits of his claims.

IV. Burden of Proving Extreme Emotional Disturbance

Petitioner argues that the prosecutor failed to prove all of the elements of murder
under Kentucky law, and that, therefore, his conviction violated his Fourteenth
Amendment due process rights. Petitioner asserts that Kentucky’s definition of murder
when he committed the crimes at issue included the absence of EED as an element of the
crimes, and that the state failed to meet its burden of proof on the EED element.
Therefore, Petitioner contends that based on In re Winship, 397 U.S. 358 (1970), his
conviction “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States.” 28 U.S.C. § 2254.

Under In re Winship, in order for a conviction to pass constitutional muster, the
state must prove every element of the crime beyond a reasonable doubt. See In re
Winship, 397 U.S. at 364; Gall v. Parker, 231 F.3d 265, 286 (6th Cir. 2000) (“Gall II”).
Therefore, the inquiries necessary to evaluate this ground for relief are: (1) whether the
absence of EED was an element of the crime of murder under Kentucky law in effect at
the time of Petitioner’s crimes; and (2) if so, whether the state carried its In re Winship
burden, including proving the EED element beyond a reasonable doubt.

The Kentucky murder statute in effect at the time of the murders stated that a
person commits murder when:

with the intent to cause the death of another person, he causes the death
of such person or of a third person; except that in any prosecution a
person shall not be guilty under this subsection if he acted under the
influence of extreme emotional disturbance, the reasonableness of which
No. 09-5464 Matthews v. Parker Page 12

is to be determined from the viewpoint of a person in the defendant’s
situation under the circumstances as the defendant believed them to be.

Ky. Rev. Stat. § 507.020(1)(a).

In the years preceding Petitioner’s crimes, the Kentucky Supreme Court
reiterated on numerous occasions that, “the failure to act under the influence of extreme
emotional disturbance is an element of the offense of murder.” Edmonds v.
Commonwealth, 586 S.W.2d 24, 27 (Ky. 1979); see also Bartrug v. Commonwealth, 568
S.W.2d 925, 926 (Ky. 1978) (“[T]he statute makes the absence of extreme emotional
disturbance an essential element of the offense of murder.” The Kentucky “legislature
clearly intended the prosecution to bear the risk of non-persuasion on the element of
mitigation.”); Ratliff v. Commonwealth, 576 S.W.2d 307, 309 (Ky. 1978) (“[T]he
prosecution carried the burden to satisfy the jury of the absence of extreme emotional
disturbance.”). In June of 1981 when Petitioner committed the crimes at issue, Kentucky
law defined the absence of EED as an element of murder.

During the months preceding Petitioner’s crimes, the Kentucky Supreme Court
refined the distribution of the burden of proving the EED element. In Gall v.
Commonwealth, 607 S.W.2d 97, 108-09 (Ky. 1980) (“Gall I”), the Kentucky Supreme
Court stated that “[t]he Commonwealth bore the burden of proof” on the EED element,
but “[a]n instruction of murder need not require the jury to find that the defendant was
not acting under the influence of extreme emotional disturbance unless there is
something in the evidence to suggest that he was, thereby affording room for a
reasonable doubt in that respect.” See also Smith v. Commonwealth, 599 S.W.2d 900,
905 (Ky. 1980). Thus, after Gall I, the burden of proving the EED element was
distributed between the parties. The defendant bore the initial burden of production
required to trigger the inclusion of the EED element as an element of the crime. Once
the defendant satisfied its burden of production and “raised a reasonable doubt”
regarding the EED element, the state bore the ultimate burden of persuasion, and was
required to prove the EED element beyond a reasonable doubt.
No. 09-5464 Matthews v. Parker Page 13

In the years following Petitioner’s crimes, the Kentucky Supreme Court
redistributed the burden of proving EED, and placed it entirely on the defendant. In
Wellman v. Commonwealth, 694 S.W.2d 696 (Ky. 1985), decided four years after
Petitioner’s crimes, the Kentucky Supreme Court stated that “[t]he presence or absence
of extreme emotional distress is a matter of evidence, not an element of the crime.” Id.
at 697. To dispel any ambiguity, the Kentucky Supreme Court further declared that “[t]o
the extent that . . . cases declare absence of extreme emotional distress to be an element
of the crime of murder, they are expressly overruled.” Id.

Wellman was the law when the Kentucky Supreme Court decided Petitioner’s
direct appeal. However, because Gall I was the law when Petitioner committed the
crimes, the Kentucky Supreme Court was constitutionally required to apply Gall I to
Petitioner’s case. As the Supreme Court stated in Bouie v. City of Columbia, 378 U.S.
347, 353-54 (1964) (internal quotations and citations omitted),

an unforeseeable judicial enlargement of a criminal statute, applied
retroactively, operates precisely like an ex post facto law, such as Art. I,
§ 10, of the Constitution forbids . . . . The fundamental principle that the
required criminal law must have existed when the conduct in issue
occurred, must apply to bar retroactive criminal prohibitions emanating
from courts as well as from legislatures. If a judicial construction of a
criminal statute is unexpected and indefensible by reference to the law
which had been expressed prior to the conduct in issue it must not be
given retroactive effect.1

According to Bouie, it is impermissible for a court to apply a new judicial construction
of the criminal law to prior crimes.

In Gall II, 231 F.3d at 305-06, we analyzed the constitutionality of applying the
post-Wellman understanding of parties’ EED burdens to earlier conduct, and applied

1
The Supreme Court’s decision in Rogers v. Tennessee, 532 U.S. 451 (2001), upholding the
Tennessee Supreme Court’s overruling of its common law “year-and-a-day” murder rule and its application
of that decision to the case before it, clarified that Bouie was not coextensive with the ex post facto clause.
This does not alter the analysis in Petitioner’s case. Rogers stated that the foreseeability of the Tennessee
Supreme Court’s abolition of the “year-and-a-day” rule played a significant role in its decision. See id.
at 462-67. Moreover, the Supreme Court explicitly upheld Bouie and explained that Bouie “was rooted
firmly in well established notions of due process. Its rationale rested on core due process concepts of
notice, foreseeability, and, in particular, the right to fair warning as those concepts bear on the
constitutionality of attaching criminal penalties to what previously had been innocent conduct.” Id. at 459.
No. 09-5464 Matthews v. Parker Page 14

Bouie to a materially indistinguishable case. We explained that although the Kentucky
Supreme Court’s later cases discussing EED “held that absence of EED was not an
element of murder,” under Bouie, “the Kentucky Supreme Court’s explicit alterations
of its interpretation of EED in cases such as Wellman . . . [may] not be applied to”
preceding conduct. Id. at 305.

Bouie prohibits retroactive application of Wellman, as Wellman was not a
conclusion that was foreseeable at the time of Petitioner’s crimes. As we explained in
Gall II, “[u]nder the most reasonable reading of the statute’s plain text . . . absence of
EED was an element of the crime.” Id. Moreover, “[b]eyond the statute itself, [the]
Kentucky Supreme Court’s earliest interpretations of the statute, its decision to apply this
reading retroactively to cases that occurred shortly after the statute came into effect . .
. and its explicit acknowledgment that the later cases were directly overruling the prior
cases, all support this view.” Id. at 305-06. Finally, application of the Kentucky
Supreme Court’s later formulation of the EED burden to crimes previously committed
contravenes Bouie as “[i]t is also clear that the retroactive application of those cases
would substantially disadvantage [a defendant], both by removing an element of murder,
and by making [the defendant’s] burden of showing EED substantially more difficult.”
Id. at 306. Thus, at Petitioner’s trial, if Petitioner raised a reasonable doubt regarding
the EED element, the state bore the burden of establishing the EED element beyond a
reasonable doubt.

Notwithstanding that Gall I was the law at the time of Petitioner’s crimes, the
Kentucky Supreme Court nevertheless applied the new Wellman formulation of its
murder statute to uphold Petitioner’s conviction on direct appeal. See Matthews I, 709
S.W.2d at 421 (“We have recently written on this subject in Wellman v. Commonwealth
. . . clarifying that the absence of extreme emotional disturbance is not an element of the
crime of murder which the Commonwealth must affirmatively prove. The trial court’s
instructions in regard to extreme emotional disturbance were adequate, and the proof
supported the jury’s findings of intentional murder.”). However, because the Kentucky
Supreme Court’s decisions subsequent to Petitioner’s crimes cannot constitutionally
No. 09-5464 Matthews v. Parker Page 15

govern the disposition of Petitioner’s appeal, Petitioner’s murder conviction can only be
upheld if the state proved the elements of murder, as defined by Gall I, beyond a
reasonable doubt.

As we explained above, under Gall I, EED was only an element of murder if the
defendant raised a reasonable doubt as to its presence. Therefore, the defendant had the
initial burden of production. Once the defendant met this burden, the burden shifted,
requiring the state to prove the EED element beyond a reasonable doubt. See Gall I, 607
S.W.2d at 108-09. Therefore, once Petitioner presented sufficient evidence
demonstrating his EED to carry his burden of going forward, the prosecution was
required to demonstrate the absence of EED beyond a reasonable doubt to convict
Petitioner of murder.2 Convicting Petitioner of murder when the prosecution failed to
prove the EED element beyond a reasonable doubt, contravened the Supreme Court’s
established precedent requiring the state to prove every element of a crime beyond a
reasonable doubt. See In re Winship, 397 U.S. at 364.

In this case, we look to Kentucky’s substantive treatment of EED to determine
whether Petitioner met his production burden, and triggered EED’s inclusion as an
element of murder. At the time of the murders, the Kentucky statute did not clearly
define EED. However, under Kentucky law at the time of Petitioner’s crimes, “a mental

2
We emphasize that contrary to the dissent’s characterization, EED was not an affirmative
defense at the time of Petitioner’s crimes. See Gall II, 231 F.3d at 288-90. Rather, the absence of EED
was an element of murder. See id. Had EED been an affirmative defense, Petitioner would have borne
the burden of proof. However, because the absence of EED was an element of murder, the prosecution
was required to prove the EED element beyond a reasonable doubt. Id. at 294-96. The dissent cites
several Kentucky cases to support the contention that the prosecution sufficiently rebutted Petitioner’s
evidence of EED. These cases are of limited relevance because they effectively shifted the burden of proof
to the defendant. See id. at 294-95. In reviewing the evidence with respect to EED, Hayes v.
Commonwealth, 625 S.W.2d 583, 585-86 (Ky. 1981) imposed the same burden of production on the
defendant found to be “constitutionally infirm” by this court in Gall II. Compare Gall II, 231 F.3d at 296
(holding that due process was violated by Gall I regime whereby prosecution need not rebut evidence of
EED unless defendant offers evidence “of such probative force” that he “would be entitled as a matter of
law to an acquittal”) (internal quotation marks omitted) with Hayes, 625 S.W.2d at 585-86 (Ky. 1981)
(applying Gall I to hold that “evidence of emotional disturbance was not so substantial as to mandate a
directed verdict of acquittal”). Ice v. Commonwealth, 667 S.W.2d 671, 678 (Ky. 1984), and Newsome v.
Commonwealth, 366 S.W.2d 174, 175 (Ky. 1962), reviewed whether, as a matter of law, the defendant had
proved the affirmative defense of insanity. See Ice, 667 S.W.2d at 678 (“[T]he introduction of proof of
insanity by defendant does not place a burden on the Commonwealth to prove him sane.”) (internal
quotation marks omitted); Newsome, 366 S.W.2d at 175 (assessing strength of defendant’s evidence when
“defense at . . . trial was insanity”). These cases, in which the defendants bore a high burden, shed little
light on whether the prosecution carried its burden on the EED element in Petitioner’s case.
No. 09-5464 Matthews v. Parker Page 16

disorder, whether or not it amounts to legal insanity, may constitute a reasonable
explanation or excuse for extreme emotional disturbance.” Gall I, 607 S.W.2d at 109;
see also Gall II, 231 F.3d at 302.

For EED to be included as an element of murder, Petitioner had to introduce
sufficient evidence, which could include evidence of a mental disorder, to raise a
reasonable doubt regarding whether he was under the influence of EED when he
committed the crimes. See Gall I, 607 S.W.2d at 108-09. At trial, Dr. Lee Chutkow,
the psychiatrist who evaluated and diagnosed Petitioner in advance of trial, testified that
Petitioner suffered from an adjustment disorder and alcohol abuse. (See App. at 1196,
Trial Tr.) An adjustment disorder, explained Dr. Chutkow, is a “temporary emotional
and behavioral disturbance” in individuals “subject to a variety of stresses, either
psychological, social, physical, or a combination of stresses for days, weeks or months.”
(Id.) Symptoms of an adjustment disorder can include impaired judgment and self
control, as well as attempts to hurt others. (See id.) On redirect examination,
Petitioner’s counsel asked Dr. Chutkow whether he was “able to formulate an opinion
as to whether at the time of the offenses on June the 29, 1981 . . . [Petitioner’s] mental
state . . . amounted to an extreme emotional disturbance or not?” Dr. Chutkow replied,
“Yes. He was developing for several weeks, I believe, progressively, extreme tension,
irritability, and almost a kind of fear of his late wife.” (Id. at 1205.)

The Kentucky Supreme Court applied the relevant definition of EED to
determine that several defendants were operating under EED. However, these
defendants often suffered from more serious conditions than did Petitioner, including
mental disorders akin to paranoid schizophrenia. See, e.g., Ratliff, 567 S.W.2d at 309;
Gall I, 607 S.W.2d at 109; Edmonds, 586 S.W.2d at 26. Nevertheless, through Dr.
Chutkow’s testimony, Petitioner presented evidence that Petitioner was suffering from
a mental condition in the form of EED. Dr. Chutkow’s testimony raised a reasonable
doubt regarding the EED element, and shifted onto the state the burden of proving the
EED element beyond a reasonable doubt. The constitutionality of Petitioner’s
conviction thus rests on whether the state met this burden of proof.
No. 09-5464 Matthews v. Parker Page 17

In general, to determine whether the prosecution carried its burden on an element
of a crime we ask “whether after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).3 In
the instant case, we must determine whether “any rational trier of fact” could have found
that the prosecution proved the EED element beyond a reasonable doubt.

The prosecution presented no evidence of its own regarding the EED element.
Moreover, in cross-examining Dr. Chutkow, the prosecution only elicited further
statements supporting Petitioner’s EED at the time of the crimes. For example, when the
prosecution asked Dr. Chutkow whether he had testified that Petitioner “was suffering
from some extreme emotional disturbance at the time,” Dr. Chutkow replied “Yes.”
(App. at 1219-20, Trial Tr.)

Under Kentucky law, the prosecution was not required to present direct evidence
regarding a defendant’s mental state in order to sustain its burden of proof on the EED
element. See Gall I, 607 S.W.2d at 109. However, because Petitioner satisfied his
burden of going forward with respect to the EED element, and the prosecution neither
undermined nor contravened Petitioner’s EED evidence, there remained a reasonable
doubt regarding the EED element. Therefore, no rational trier of fact could have found
beyond a reasonable doubt that Petitioner acted in the absence of EED, and convicting
Petitioner violated the requirements articulated in In re Winship.4

3
Although Petitioner formulates this ground for habeas relief as a failure to direct a verdict in his
favor, this formulation is materially identical to a sufficiency of the evidence analysis. Compare
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (“On motion for directed verdict, the trial
court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If
the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the
defendant is guilty, a directed verdict should not be given.”) with Jackson, 443 U.S. at 319 (reviewing a
verdict for sufficiency of the evidence a court must ask “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.”). Both sufficiency of the evidence, and directed verdict analyses
scrutinize whether any rational trier of fact would find the element in question beyond a reasonable doubt.
The only difference between the two inquiries is the timing of the court’s evidentiary review. Whereas
a directed verdict motion is made either at the close of the prosecution’s case, or at the close of all
evidence, a sufficiency of the evidence review occurs on appeal.
4
The dissent relies on the Kentucky Supreme Court’s finding that the prosecution rebutted
Petitioner’s EED evidence sufficiently to present the issue to the trial jury because “[i]n addition to the
circumstances of the crime . . . when [Petitioner] returned to his mother’s house after the crime . . . he took
No. 09-5464 Matthews v. Parker Page 18

Accordingly, the Kentucky courts violated clearly established federal law as
articulated by the United States Supreme Court in In re Winship by shifting the burden
of proving the EED element onto Petitioner. At the time of Petitioner’s crimes, the
absence of EED was an element of murder under Kentucky law; however, the state failed
to prove the EED element beyond a reasonable doubt. We therefore grant Petitioner a
writ of habeas corpus on this ground.5

V. Prosecutorial Misconduct

Petitioner argues that the prosecutor’s improper denigration of Petitioner’s EED
defense in his closing argument undercut the integrity of Petitioner’s trial, and violated
the due process clause of the Fourteenth Amendment.

In his closing arguments the prosecutor stated, “[Petitioner is] covering up,
Ladies and Gentlemen, because he himself does not believe that . . . any disorder he
might have are his reasons for murdering his wife and mother-in-law. They aren’t

steps to hide the gun and clean his clothes. Shortly thereafter, he gave a false statement to the police.”
Matthews I, 709 S.W.2d at 421.
However, during Petitioner’s trial Dr. Chutkow explained that the nature of Petitioner’s EED was
such that Petitioner had a warped perception of the need to commit the crimes. However, Petitioner’s
understanding that his actions were criminal, and that it was in his best interest to minimize evidence
connecting him to the crimes, were unaffected by his EED.
Petitioner’s counsel asked Dr. Chutkow whether Petitioner’s EED “[w]ould comport with his . . .
perhaps hiding the gun or making a false statement? . . . [W]ould either his putting the gun away or . . .
giving a false statement, would either of those stand for the proposition that the [EED] diagnosis that you
have given just completely do[esn’t] exist?” (App. at 1209, Trial Tr.) Dr. Chutkow replied, “[n]o, the
diagnosis still exists, because [Petitioner] knew what the action was. His interpretation of his motives
about the action or the need to do this or the purpose of doing it . . . was quite unrealistic, but he knew what
he was doing . . . was wrong in a legal sense.” (Id. at 1209-10.) Dr. Chutkow reaffirmed this position on
cross-examination. (See id. at 1220.)
5
Petitioner also argues in the alternative that under Kentucky law in effect at the time of the
crimes, “[u]nless the evidence raising the issue [of EED] is of such probative force that otherwise the
defendant would be entitled as a matter of law to an acquittal on the higher charge (murder), the
prosecution is not required to come forth with negating evidence in order to sustain its burden of proof.”
Gall I, 607 S.W.2d at 109. In other words, Petitioner further argues that constitutionally, his burden of
production on the EED element should have been satisfied when he raised a reasonable doubt regarding
the EED element. Nevertheless, Kentucky law required him to prove the EED element beyond a
reasonable doubt in order to meet his burden of production.
We have found that requiring a defendant to bear the heavy burden of disproving an element of
a crime beyond a reasonable doubt is “exactly the type of burden-shifting proscribed by [the Supreme
Court in] Mullaney.” Gall II, 231 F.3d at 295. See Mullaney v. Wilber, 421 U.S. 684 (1975). In Gall II
we explained that the Supreme Court stated in Mullaney “that the proof of an element that distinguishes
between murder and manslaughter implicates In re Winship as much as an element that distinguishes guilt
from innocence.” Id. Therefore, “requiring a defendant to offer evidence of such probative force that
otherwise he would be entitled as a matter of law to an acquittal . . . violated due process.” Id. (citing In
re Winship, 397 U.S. at 364.)
No. 09-5464 Matthews v. Parker Page 19

reasonable. Nobody’s going to believe that’s a reason.” (App. at 1309, Trial Tr.) The
prosecutor elaborated:

[Petitioner] is arraigned, he meets his attorney and either he tells his
attorney, I did it or I didn’t do it. One way or the other. But the attorney
knows what the evidence is. By the way, the defendant knows what the
evidence is, because while he’s giving this statement, it’s sitting forth
right in front of him at the Homicide Office. Here’s the gun. Here’s the
shoes, David. “Nah, nah, I never saw it before, I never borrowed a gun.
I never borrowed any money. I wasn’t there. I was at home in bed
asleep.” He’s denying it there. And what does his attorney think? His
attorney sees all this evidence, and he’s going through his mind, what
kind of legal excuse can I have? What’s the man’s defense? Self
protection? No, there’s no proof of a gun found at that house on 310
Lytle Street. Protection of another? The defendant’s mother is at home
on Lytle Street. He isn’t protecting her over there on North 24th Street.
Intoxication? Yeah, well, he was drinking that night. Maybe that will
mean something. But that isn’t enough Ladies and Gentlemen. Mr.
Busse has to contact a psychiatrist to see his client, and he comes in and
sees his client one month after the day of his arrest, one month to the day,
and by that time, Mr. David Eugene Matthews sees his defense in the
form of Doctor Chutkow, and do you think this guy is aware of what’s
going on? He’s competent, he can work with his attorneys, and he
enhances his story to Doctor Chutkow. Yeah, I was drinking. I was
drinking a lot. I was taking a lot of pills, too, and let me tell you about
the pills I was taking. Don’t you think he has a purpose in enhancing his
story to the psychiatrist? Don’t you think he would exaggerate his fears
about his wife, his mother-in-law, and all these other things about what
other people might be doing to his mother? Don’t you think he would
overstate the extent of his intoxication to his psychiatrist? It’s the
defense of last resort, Ladies and Gentlemen. He has no excuse for his
conduct, but that’s his only way out.

(Id. at 1309-11.)

In reviewing a petition for habeas corpus based on prosecutorial misconduct, “the
relevant question is whether the prosecutor’s comments so infected the trial with
unfairness as to make the conviction a denial of due process.” Lundgren, 440 F.3d at
778 (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). This Court engages in
a two step inquiry to determine whether the prosecutorial misconduct rises to the level
of unconstitutionality. “To satisfy the standard for prosecutorial misconduct, the conduct
No. 09-5464 Matthews v. Parker Page 20

must be both improper and flagrant.” Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir.
2006).

Our prior decisions dealing with prosecutorial misconduct provide some
guidance regarding the nature of improper prosecutorial conduct.

In determining whether the [prosecutor’s] statements . . . were proper,
there are several guidelines available. First, advocates have an obligation
to put forth only proper arguments based on the evidence in the record.
Also they must obey the cardinal rule that a prosecutor cannot make
statements calculated to incite the passions and prejudices of the jurors.
Finally, [this Court] h[as] held . . . that a prosecutor may not make
improper comments designed to completely undercut the defendant’s sole
mitigation theory, effectively denying him fair jury consideration.

Id.

In Gall, “[r]ather than attacking Gall’s insanity evidence by pointing to counter-
evidence that Gall was sane, the Commonwealth simply assaulted the very use of the
defense.” Gall II, 231 F.3d at 314. The prosecutor in Gall called Gall’s insanity defense
“the last line of defense.” Id. The prosecutor also stated that “Gall is legally feigning
insanity,” and “reminded the jury not to be hoodwinked into the defense of insanity.”
Id. at 313-14. We “ha[d] no doubt that these tactics were improper,” in Gall. Id. at 315.

The prosecutor’s denigrating statements in Gall were more pervasive than those
of the prosecutor in this case. Indeed, we found in Gall II that “[t]hese comments and
misrepresentations comprised part of a broader strategy of improperly attacking Gall’s
insanity defense.” Id. at 313. Nevertheless, the prosecutor’s comments in this case are
sufficiently similar to those in Gall that they rise to the level of impropriety. The
prosecutor in Petitioner’s trial likewise did not point to any substantive evidence
rebutting Petitioner’s EED claim. Instead, he cast aspersions on Petitioner’s EED claim
by suggesting collusion between Petitioner, his attorney, and his psychiatrist, stating that
Petitioner was “competent,” could “work with his attorneys,” and saw “his defense in
the form of Doctor Chutkow.” (App. at 1310-11, Trial Tr.) Therefore, the prosecutor
suggested that Petitioner “enhance[d] his story to Doctor Chutkow,” to manufacture his
No. 09-5464 Matthews v. Parker Page 21

EED defense. (Id.) The prosecutor also denigrated the EED defense itself stating, “[i]t’s
the defense of last resort, Ladies and Gentlemen. He has no excuse for his conduct, but
that’s his only way out.” (Id.)

Although “a prosecutor may not make improper comments designed to
completely undercut the defendant’s sole mitigation theory, effectively denying him fair
jury consideration,” Broom, 441 F.3d at 412, that is precisely what the prosecutor did in
Petitioner’s trial. Thus the prosecutor’s conduct was improper, satisfying the first prong
of the prosecutorial misconduct test.

Regarding the second, flagrancy, factor of the prosecutorial misconduct test we
have stated:

[o]nce conduct is held to be improper, there are four factors [to] consider
in determining flagrancy: (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 [petitioner].

Id. Application of these factors demonstrates that the prosecutor’s conduct in
Petitioner’s trial was flagrant, depriving Petitioner of a constitutionally proper trial.

First, the prosecutor’s statements were likely to mislead the jury. A prosecutor,

[m]isrepresenting facts in evidence . . . may profoundly impress a jury
and may have a significant impact on a jury’s deliberations. This is
particularly true in the case of prosecutorial misrepresentation because
a jury generally has confidence that the prosecuting attorney is faithfully
observing his obligation as a representative of a sovereignty, whose
interest in a criminal prosecution is not that it shall win a case, but that
justice will be done.

Gall, 231 F.3d at 313. In light of the weight that juries accord a prosecutor’s statements,
there is a significant danger that Petitioner’s jury seriously considered the prosecutor’s
allegations that Petitioner was exaggerating the extent of his EED, and colluding with
his attorney and doctor to manufacture his EED defense.
No. 09-5464 Matthews v. Parker Page 22

The next element of the flagrancy inquiry is, “whether the remarks were isolated
or extensive.” Broom, 441 F.3d 412. In this case, in contrast to Gall where the
prosecutor’s denigration of Gall’s insanity defense was “part of a broader strategy,” Gall
II, 231 F.3d at 313, the prosecution’s improper statements were confined to his closing
arguments. However, the remarks, which spanned two pages of the trial transcript, and
comprised nearly a quarter of his closing statement, were hardly isolated.

The third factor is, “whether the remarks were deliberately or accidentally made.”
Broom, 441 F.3d 412. There is no direct evidence regarding intent. However, when “the
prosecutor[] . . . opts to select inappropriate arguments and use them repeatedly during
summation . . . [t]he intentionality of the prosecutor’s improper remarks can be inferred
from their strategic use.” Bates v. Bell, 402 F.3d 635, 648 (6th Cir. 2005). In this case,
the prosecutor presented a lengthy narrative to the jury detailing his theory of
Petitioner’s exaggeration and collusion. This suggests that the prosecutor deliberately
presented the improper arguments.

Finally, we must consider “the total strength of the evidence against the
[petitioner].” Broom, 441 F.3d at 412. In assessing the “total strength of the evidence
against [Petitioner], [this Court] must distinguish between evidence of the [Petitioner’s]
guilt of the underlying criminal charge and evidence of any . . . mitigating
circumstances.” Id. at 413. The only issue considered in Petitioner’s trial was whether
or not he killed his wife and mother-in-law under the influence of EED. Actual
innocence was not an issue. As previously discussed, the prosecution presented no
evidence rebutting Petitioner’s demonstration that he was acting under the influence of
EED while committing the crimes. The strength of the evidence available to rebut
Petitioner’s EED defense was dubious. Therefore, the fourth factor suggests that the
prosecutor’s statements satisfy the flagrancy requirement set by this Court.

The prosecutor’s comments during closing arguments regarding Petitioner’s
supposed exaggeration of his EED, and collusion with his attorney and doctor, were both
improper and flagrant. “[T]he Commonwealth’s misconduct was sufficiently egregious
to render the entire trial fundamentally unfair.” Gall II, 231 F.3d at 315.
No. 09-5464 Matthews v. Parker Page 23

Accordingly, the prosecution’s statements suggesting that Petitioner and his
defense team colluded to manufacture his EED claim, and exaggerated the extent of his
EED, rendered Petitioner’s trial unfair, and denied him of his constitutionally protected
due process rights. It was unreasonable for the Kentucky Supreme Court to reach a
contrary result.

VI. Ineffective Assistance of Trial Counsel

In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court stated
that “[t]he benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.” Thus, to prevail on an
ineffective assistance of counsel claim, a petitioner “must demonstrate that counsel’s
representation fell below an objective standard of reasonableness and that the [petitioner]
was prejudiced by the ineffective assistance of counsel.” Carter v. Bell, 218 F.3d 581,
591 (6th Cir. 2000) (citing Strickland, 466 U.S. at 687). “Representation is
deficient,”under the Strickland test, “when counsel made errors so serious that counsel
was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.”
Id. Moreover, to satisfy the prejudice prong of Strickland, a petitioner “need not show
that counsel’s deficient conduct more likely than not altered the outcome in the case,
rather, only that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Lundgren, 440 F.3d at
770 (citing Strickland, 466 U.S. at 494). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 799.

Strickland’s prejudice prong is further refined in the context of a death sentence.
“When a petitioner challenges a death sentence, the question is whether there is a
reasonable probability that, absent the errors, the sentencer – including an appellate
court, to the extent it independently reweighs the evidence – would have concluded that
the balance of aggravating and mitigating circumstances did not warrant death.”
Harries, 417 F.3d at 637 (internal quotations omitted). Furthermore, “[u]nder federal
law, one juror may prevent the death penalty by finding that mitigating factors outweigh
No. 09-5464 Matthews v. Parker Page 24

aggravating factors . . . . [Therefore,] the prejudice prong is satisfied if there is a
reasonable probability that at least one juror would have struck a different balance.”
Lundgren, 440 F.3d at 770 (quoting Wiggins v. Smith, 539 U.S. 510, 523-28 (2003)).

1. Ineffective Assistance of Trial Counsel in
Investigation, Preparation and Presentation of Penalty
Phase Evidence
Petitioner argues that trial counsel were ineffective for: (1) failing to adequately
diagnose and demonstrate the severity of Petitioner’s EED and mental health conditions;
(2) failing to investigate, discover and present a variety of mitigating facts relating to
both Petitioner’s and his family’s histories, to wit, evidence of mental illness in
Petitioner’s family; alcoholism in Petitioner’s family; Petitioner’s own alcohol and drug
abuse, which indicated a possibility of brain damage; and vast amount of non-statutory
mitigating evidence relevant to Petitioner’s upbringing and character. (See App. at 456,
Rep. and Recommendation.)

Petitioner further claims that “[c]ounsel were also ineffective in failing to try to
present [additional mitigation] testimony in the penalty phase . . . even though the trial
judge had excluded the same testimony in the culpability phase.” (Br. of Pet’r at 41.)
Petitioner argues that because “[m]itigation must be offered to the jury[,] counsel ha[d]
a duty to present it,” and that, “[o]pting not to try to represent this evidence . . .
amounted to deficient performance.” (Id. at 42.)

“The Eighth and Fourteenth Amendments to the United States Constitution
dictate that the sentencer in a capital case may not be precluded from considering any
relevant circumstances as a mitigating factor.” Carter, 218 F.3d at 594 (citing Mills v.
Maryland, 486 U.S. 367 (1988)). Evidence appropriate for admission as “[m]itigating
evidence includes any aspect of a defendant’s character or record and any of the
circumstances of the offense that the defendant proffers as a basis for a sentence less
than death.” Id. (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)) (internal quotation
marks omitted).
No. 09-5464 Matthews v. Parker Page 25

We have, therefore, emphasized that “a thorough and complete mitigation
investigation is absolutely necessary in capital cases.” Dickerson v. Bagley, 453 F.3d
690, 693 (6th Cir. 2006). “Capital defense counsel has an affirmative duty to pursue
mitigation evidence and to conduct an appropriate investigation into potential mitigating
factors.” Lundgren, 440 F.3d at 770. As such, “investigations into mitigating evidence
should comprise efforts to discover all reasonably available mitigating evidence and
evidence to rebut any aggravating evidence that may be introduced by the prosecutor.”
Id. at 771 (internal quotations and citations omitted).

Because “it is undisputed that [a] petitioner has a right – indeed, a
constitutionally protected right – to provide the jury with . . . mitigating evidence,”
Carter, 218 F.3d at 594, and because the extent of admissible mitigation evidence is
sweeping, “notwithstanding the deference Strickland requires, neither this [C]ourt nor
the Supreme Court has hesitated to deem deficient counsel’s failure to fulfill this
obligation.” Harries, 417 F.3d at 637.

a. Evidence of Petitioner’s EED and Mental
Health
In the instant appeal of his petition for a writ of habeas corpus, Petitioner asserts
that his trial counsel were ineffective in preparing Dr. Lee Chutkow, the psychologist
who evaluated Petitioner and testified at trial. Due to counsel’s deficiencies, Petitioner
argues, Dr. Chutkow’s diagnosis did not reflect the seriousness of Petitioner’s mental
disorders, and Petitioner was prejudiced during the mitigation phase of trial.

To assess Petitioner’s mental health, Petitioner’s trial counsel hired both a
psychiatrist and a neuropsychologist to evaluate Petitioner in advance of trial. Only Dr.
Chutkow, the psychiatrist, provided a relevant diagnosis. Dr. Chutkow met with
Petitioner several times to question Petitioner about his personal history, and his
relationship with his wife and family. Dr. Chutkow also spoke with Petitioner’s mother.
Based on these evaluations, Dr. Chutkow diagnosed Petitioner with adjustment disorder
and alcohol abuse. (See App. at 467-68, Rep. and Recommendation.)
No. 09-5464 Matthews v. Parker Page 26

Petitioner’s habeas counsel hired a psychologist, Robert Smith, Ph.D., to evaluate
Petitioner’s mental health, and to assess the reliability of Dr. Chutkow’s diagnosis which
was presented at Petitioner’s trial. (See id. at 3709-808, Tr. of Hr’g 7/19/2006.) At an
evidentiary hearing held before the magistrate judge on July 19, 2006, Petitioner’s
habeas counsel questioned Dr. Smith regarding the sufficiency of Dr. Chutkow’s
examination and diagnosis. Dr. Smith explained that in his professional opinion, in
diagnosing Petitioner it was important to identify “corroborating data regarding the
characteristics of an individual’s behavior and use of alcohol and other drugs to confirm
the information that’s provided by David Matthews.” (Id. at 3719.) The diagnosing
psychologist in Petitioner’s case was tasked with “trying to determine if information
from the defendant is reliable, what you look for are consistencies . . . what you are
looking for is overlaps . . . recognizing that that data then is likely to be valid and
reliable.” (Id. at 3720.) Therefore, explained Dr. Smith, “the important thing in reaching
a diagnosis would be to have [family] history because historical data becomes very
important about the progression of a disorder; family history, because again, genetic
influences can be important.” (Id. at 3719.) Dr. Smith concluded that “[he] did not
believe that Dr. Chutkow’s diagnosis was reliable,” (id. at 3717), because “the material
that [Dr. Chutkow] had was limited. He did not have information from family. He did
not do a detailed history of David Matthews’ use of alcohol and other drugs beginning
in childhood through adolescence and into adulthood. So as a result, he didn’t have the
information to make a reliable diagnosis.” (Id. at 3717-18.)
No. 09-5464 Matthews v. Parker Page 27

In reaching his own diagnosis, Dr. Smith

did a full history of David Matthews’ family, asking about each family
member who may have used or abused alcohol or other drugs. Then
went through his entire life. Asking about his use of different substances
at different times, looking for patterns of use, and looking for any
indications of progression. Then looked at his testing results . . . from . . .
Dr. Chutkow, medical records for David Matthews and family members.
Affidavits of family members and friends, and a number of court
documents.

(Id. at 3718-19.) Based on these inquiries, Dr. Smith “made two primary” diagnoses
regarding Petitioner’s condition at the time of the crimes. (See id. at 3721.) He
diagnosed Petitioner with “substance dependence, alcohol dependence, [and]
amphetamine abuse,” as well as “narcissistic personality disorder.” (Id.) Petitioner
contends that Dr. Smith’s more severe diagnoses are more accurate reflections of
Petitioner’s mental health at the time of the crimes than were Dr. Chutkow’s.

Although Dr. Smith testified before the magistrate judge regarding the
inadequacies of Dr. Chutkow’s diagnosis and trial testimony, (see id. at 3717-21, Tr. of
Hr’g 7/19/2006), in his deposition, Mr. Busse, one of Petitioner’s trial counsel, stated
that contrary to Dr. Smith’s assertion, “Dr. Chutkow did numerous tests . . . and then he
did several follow-up reviews of Mr. Matthews . . . [and that Dr. Chutkow is] a very
competent . . . very strong psychiatrist. And he testified to what he believed was
accurate and true to the best of his knowledge.” (Id. at 3851, Busse Dep.) Busse also
explained that notwithstanding critiques of Dr. Chutkow’s examination two decades after
the fact, not only did “Dr. Chutkow [do] a thorough and complete exam,” (id. at 3884),
but Petitioner’s defense team were limited in their options for experts in Petitioner’s trial
because “in 1981, psychiatrists were not signing up all over Jefferson County[,
Kentucky] to testify in death penalty cases.” (Id. at 3919.)

Petitioner’s contentions that his trial counsel were ineffective in choosing Dr.
Chutkow to evaluate him and testify at trial, and that Dr. Chutkow’s clinical
methodology was legally insufficient, are unavailing. We have stated that “[c]ounsel’s
diligence in obtaining not just the constitutionally mandated single mental health expert,
No. 09-5464 Matthews v. Parker Page 28

but two mental health experts,” as did counsel in this case, “shows that counsel engaged
in a reasonable investigation into Petitioner’s mental state at the time of the crimes.”
Lundgren, 440 F.3d at 772.

Furthermore, “[t]o the extent that Petitioner’s argument can be framed as one
impugning the competency of the [psychiatrist] retained to assist trial counsel,
Petitioner’s argument has little merit.” Id. We explained in Lundgren that “[t]he
Constitution does not require that an indigent criminal defendant be able to retain the
expert of his choosing, only that a competent expert be made available,” and that “[a]
licensed practitioner is generally held to be competent, unless counsel has good reason
to believe to the contrary.” Id. Therefore, because there is no evidence in the record
challenging Dr. Chutkow’s competence and credentials, Petitioner’s argument that
counsel’s choice and preparation of Dr. Chutkow were ineffective, fails.

b. Mitigation Investigation and Presentation

Petitioner also argues that his trial counsel were ineffective for failing to
investigate, discover and present a variety of mitigating facts relating to Petitioner’s and
his family’s histories, to wit, evidence of mental illness in Petitioner’s family; prevalence
of alcoholism in Petitioner’s family; Petitioner’s own alcohol and drug abuse; and a vast
amount of non-statutory mitigating evidence relevant to Petitioner’s upbringing and
character.

To evaluate whether counsel’s investigation was deficient, we compare the “net
effect of the undiscovered and unpresented evidence, viewed cumulatively,” Morales v.
Mitchell, 507 F.3d 916, 936 (6th Cir. 2007), with the “evidence trial counsel [discovered
and] presented on Petitioner’s behalf.” Haliym, 492 F.3d at 708.

i. Omitted Evidence

To demonstrate that his trial counsel were ineffective for failing to sufficiently
investigate and present mitigation evidence, Petitioner presents affidavits from several
individuals personally acquainted with him, and his life prior to the crimes. The affiants
include: Rita Baete, Petitioner’s first cousin; Beverly Higdon, Petitioner’s younger sister;
No. 09-5464 Matthews v. Parker Page 29

Barbara Kaegin, Laverne Matthews’ friend, and Petitioner’s childhood babysitter; Jerry
Matthews, Petitioner’s brother; Linda Matthews, Jerry Matthews’ wife, and Petitioner’s
sister-in-law; Anna Rose Seward, Laverne’s sister, and Petitioner’s aunt; Brenda
Mattingly, Petitioner’s first cousin; Anthony Wayne Matthews, Petitioner’s son; Judy
Kay Carrier, Petitioner’s girlfriend from the fall of 1974 through the summer of 1975,
and the mother of one of Petitioner’s children; and Laverne Matthews. The affiants each
averred facts regarding the categories of mitigating evidence that Petitioner contends his
trial counsel failed to discover and present at the trial’s penalty phase. Many of the
affiants also testified, and were cross-examined, at an evidentiary hearing regarding
Petitioner’s habeas petition held before the magistrate judge. (See App. at 3334-809,
Evidentiary Hr’g 7/7/2000.)

Several individuals who affirmed that they would have been willing to testify at
Petitioner’s trial, provided evidence regarding the history of mental illness in Petitioner’s
family. Rita Baete explained that her mother, Petitioner’s maternal aunt, “was severely
mentally ill for many years,” that her “mother heard voices,” experienced delusions, and
“was hospitalized many times over the years because of her mental illness.” (Id. at 3941,
Baete Aff.) Furthermore, Beate indicated that she perceived “personality traits in other
family members . . . similar to [those of her mother] . . . . Specifically, . . . Margaret
Laverne Matthews, Anna Rose Seward . . . Roger Wayne Matthews and Beverly
Matthews Higdon act[ed] at times like [her] mother did. [And that m]any people in [the]
family ha[d] ‘short fuses,’ and experience[d] serious episodic mood swings.” (Id.)

Beverly Higdon also detailed the history of mental illness in Petitioner’s family.
Specifically, she listed the following incidents: (1) “maternal uncle, William Beard
committed suicide;” (2) “Grandfather Beard’s sister committed suicide;” (3) “Timothy
Ray Matthews, [Petitioner’s] son committed suicide at the age of seventeen;”
(4) “maternal aunt . . . was hospitalized and treated for mental illness;” and (5) she “was
hospitalized in 1980 at Our Lady of Peace Hospital and treated for Depressive Neurosis
as well as habitual excessive drinking.” (Id. at 3946, Higdon Aff.)
No. 09-5464 Matthews v. Parker Page 30

Petitioner’s brother, Jerry Matthews, also averred that he thought “[his] brother
Roger Wayne ha[d] mental problems,” and that “Wayne [wa]s a strange person. He d[id]
not know how to have a relationship with anyone.” (Id. at 3980, Jerry Matthews Aff.)
Further, Jerry Matthews stated that “[he] believe[d] that [his] mother ha[d] mental
problems.” (Id. at 3981.) Finally, Petitioner’s aunt, Anna Rose Seward, stated that she
“believe[d] that depression runs in her family.” (Id. at 3988, Seward Aff.)

Petitioner also contends that the affidavits illuminate that alcoholism was
prevalent in his family, and that his trial counsel failed to uncover these readily-available
mitigating facts, thereby preventing the jury from learning about this significant
mitigating fact to his detriment. Regarding Petitioner’s family’s alcoholism, Baete stated
that “Margaret Laverne [Matthews] was an alcoholic. [That Baete’s] mother . . . told her
before she died that Laverne had drunk (sic.) alcohol when she was pregnant with her
children.” (Id. at 3942-43, Baete Aff.) Baete further averred that “[w]henever Laverne
came to visit . . . she brought her beer for herself to drink . . . . [Baete] remember[ed]
seeing Laverne and [her boyfriend] Lenny together, staggering down a public street,
drunk . . . . [Baete’s] own father used to drink, and when he was drunk he would get
violent.” (Id. at 3943-44.)

Moreover, Petitioner’s sister, Beverly Higdon summarized her family’s history
of alcoholism as follows: (1) “[her] father, Ernest Matthews went from corner to corner
patronizing bars;” (2) “[her] mother Laverne Matthews was an alcoholic;”
(3) “Grandfather Beard drank daily;” (4) “[her] brothers Wayne, Jerry and David drank
frequently;” (5) “[her] maternal uncle, William Beard was an alcoholic;” (6) “[she] was
hospitalized at Our Lady of Peace in 1980 for treatment for alcoholism.” (Id. at 3945-46,
Higdon Aff.) Barbara Kaegin also maintained that “Laverne Matthews, David
Matthews’ mother drank all the time.” (Id. at 3977, Kaegin Aff.)

Jerry Matthews also discussed the prevalence of alcoholism in his family. He
stated that Laverne, his mother, “was a binge drinker . . . . Sometimes [Laverne] would
use the rent money for alcohol and [his] Grandmother would have to pay the rent. [Over
time, Laverne’s] drinking spells got progressively longer,” and eventually they were
No. 09-5464 Matthews v. Parker Page 31

forced to “move[] to [his] Grandma Beard’s house because of Laverne’s drinking.” (Id.
at 3979, Jerry Matthews Aff.) Jerry Matthews’ wife Linda further reinforced that
“Laverne Matthews drank. Mainly binge drinking.” (Id. at 3983, Linda Matthews Aff.)
Laverne’s sister, Anna Rose Seward, also stated that “[w]hile [her children] were away
at school during the day, Laverne would drink beer all day long. [Laverne] also drank
heavily with her paramour Lenny.” (Id. at 3984, Seward Aff.)

Petitioner further argues that his trial attorneys failed to discover and present
details of his own alcohol and drug abuse. On this issue, Rita Baete stated that she
“remember[ed] seeing David Matthews drinking alcohol from around the time he was
fifteen or sixteen years old. [She] wasn’t around him a lot, but when [she] did see him,
he would be drunk.” (Id. at 3943, Baete Aff.) Similarly, Barbara Kaegin stated that
“[d]uring the year or two before the murders, David Matthews drank all of the time.
David Matthews always had a beer in his hand . . . . David Matthews never drank on the
barge when he worked but would take up drinking as soon as he got home from one of
the trips.” (Id. at 3977, Kaegin Aff.) Furthermore, Kaegin recounted that “on one
occasion [Petitioner] tried to obtain Valium from her.” (Id.)

Petitioner’s brother, Jerry Matthews, also discussed Petitioner’s drinking and
drug use in his affidavit. Jerry Matthews observed that after Petitioner’s debilitating arm
injury, Petitioner “became a ‘rouser’ doing a lot of drinking . . . [and] became
accustomed to taking drugs due to the many pain medications he was taking after his
injury.” (Id. at 3980, Jerry Matthews Aff.) Jerry Matthews elaborated that
“[Petitioner’s] drinking became more severe after his divorce from his first wife.” (Id.
at 3981.)

Judy Kay Carrier, Petitioner’s ex-girlfriend, further attested that “[Petitioner]
drank alcohol a lot. He would wake up in the morning with a beer bottle in his hand, and
drink all day . . . he would drink until he passed out.” (Id. at 3996, Carrier Aff.) Carrier
further stated that she “saw [Petitioner] take pills when [they] were together. [However,
she] didn’t know what kind of pills they were.” (Id.)
No. 09-5464 Matthews v. Parker Page 32

Finally, the affiants discussed Petitioner’s upbringing and character in some
detail. Rita Baete provided information regarding Petitioner’s childhood. She stated that
Petitioner’s “[g]randma acted like a mother to [Petitioner and his siblings as children]
because Laverne could not. At times, the Matthews kids were pounded with a lot of
verbal abuse . . . . [And, she] never saw anyone hug the Matthews kids.” (Id. 3942,
Baete Aff.) Baete also explained that “[Petitioner’s] father, Ernest, was never, ever in
the family home or considered part of the family.” (Id. at 3943.) However, Baete stated
that in spite of the adversity, “[she] remember[ed] David Matthews to have been a good
boy. When Grandma Beard was dying . . . [Petitioner] would come over with big hugs
for Grandma Beard. He would sit beside her and hold her hand. He would make her feel
she was loved.” (Id.)

Beverly Higdon recounted aspects of Petitioner’s childhood. She stated that she
and Petitioner “didn’t have a happy family at home.” (Id. at 3946, Higdon Aff.) Her
“family lived in the Park Hill Projects,” and “[her] father Ernest Matthews deserted the
family when [she] was an infant and [Petitioner] was about 22 months old.” (Id. at
3945.) Jerry Matthews further elaborated on these same subjects, stating, “[his] parents
got divorced . . . [and his] father, Ernest Matthews, was not allowed to see his children.”
(Id. at 3979, Jerry Matthews Aff.) Over an approximately five year period during his
and Petitioner’s childhood, “[Laverne] would be absent for the home for quite a few
hours; leaving the children by themselves. [Laverne] would be out drinking.” (Id.)

Jerry Matthews also discussed Petitioner’s arm injury’s effect on Petitioner’s
personality:

[Petitioner’s] personality changed a great deal after a severe arm injury
in 1968. His right arm was shorter than his left arm and the use of the
arm was limited. Before the injury, [Petitioner] was a family man.
[Petitioner] was a hard worker. He could take an old house in the west
end, one sadly in need of repairs, and you wouldn’t know it was the same
house in a month or two. After the accident, he had to take whatever
work he could get.

(Id. at 3980.)
No. 09-5464 Matthews v. Parker Page 33

Linda Matthews’ affidavit included statements praising Petitioner’s character.
She stated that “David Matthews could be the most likable, sweetest person. He was
great with [her] kids. [Petitioner] was playful with the kids, picking them up and
showing them attention. It was very shocking to [her] when [she] heard of his crimes.”
(Id. at 3983, Linda Matthews Aff.)

Laverne’s sister, Anna Rose Seward, discussed her encounters with Petitioner as
a child. “All the Matthews kids would come over and visit [her], [her] husband and
[their] kids . . . . [Petitioner] always helped with work around the house when he stayed
over.” (Id. at 3987, Seward Aff.) Seward further stated that “Ernie Matthews,
[Petitioner’s] father, was never in the picture as the children were growing up.” (Id.)
Nor, did “[t]he Matthews children . . . receive consistent discipline or attention from
Laverne. As a matter of fact . . . [Laverne] left the disciplining of her children to her
other children.” (Id.) Finally, Seward discussed Petitioner’s character, stating,
“[Petitioner] was a hard worker. [She] always remember[ed] him to have worked. He
was reliable also. When he borrowed money from [her] to take on the barges (where he
worked), he would always pay the money back as soon as he could.” (Id.)

Brenda Mattingly described her recollection of Petitioner’s childhood as follows:
“[she] never saw Laverne hug or kiss her kids. She did not provide discipline or
attention . . . . She would encourage her older kids to physically discipline the younger
ones . . . . In [Petitioner’s childhood home,] there was no stability.” (Id. 3989, Mattingly
Aff.) However, Mattingly stated that “[d]espite the way [Petitioner] was raised, [she]
saw him treat his own kids [well] . . . . He respected and loved his kids, and he never
mistreated them. [She] ha[d] seen him feed and bathe his kids, and play with them. He
gave them a lot of attention when he wasn’t working.” (Id. at 3990.) Finally, Mattingly
expressed that “[a]s an adult, [she] remember[ed Petitioner] as a very hard worker. He
was never one to just sit around.” (Id.)

Anthony Wayne Matthews, Petitioner’s son, also discussed his father’s character
in his affidavit. He stated, “[Petitioner] has always been very affectionate with [him],
with big hugs. [They] have always had a good relationship.” (Id. at 3992, Anthony
No. 09-5464 Matthews v. Parker Page 34

Wayne Matthews Aff.) Petitioner’s son further explained that “[Petitioner] taught . . .
and all of his kids the importance of respecting other people,” and that Petitioner “never
disciplined [his son] by hitting him.” (Id. at 3992-93.) Finally, Petitioner’s son
recounted that “[w]hen [he] was growing up, [Petitioner] tried to spend as much time
with [him] as he could . . . . At one point after [Anthony Wayne Matthews’] parents were
separated, . . . [Petitioner] would drive sixty miles . . . out . . . to spend time with [him]
and then sixty miles back.” (Id. at 3993.) “With [Petitioner],” explained Anthony
Wayne Matthews, “if it was anything within reason, [Petitioner] would give [his son]
whatever [his son] asked for. [Petitioner had] never been selfish.” (Id. at 3994.)

ii. Discovered Evidence

At trial, Petitioner was represented by a team of two assistant public defenders,
David Busse, a member of the bar for six years at the time of trial, and Christopher
Rivers, a member of the bar for three years at the time of trial. To prepare for
Petitioner’s trial, in addition to interviewing Petitioner on numerous occasions, counsel
had Petitioner examined by two experts, a psychiatrist and a neuropsychologist, and
interviewed thirty-three individuals, including, among others, Petitioner’s family, friends
and neighbors: Bernice Brown, Laverne’s neighbor; Marion “Smokey” Brown,
Laverne’s neighbor; Larry Cruse, Marlene’s brother, and Magdalene’s son; Lawrence
Cruse, Marlene’s father, and Magdalene’s husband; Carol Engel; Beverly Higdon,
Petitioner’s sister; Sherry McMichael, Larry Cruse’s wife; Ray McMichael, Sherry
McMichael’s father; Laverne; Roger Wayne Matthews, Petitioner’s brother; Linda
Morgan, Marlene’s neighbor; Eddie Peltier, Petitioner’s friend; Elaine Peltier, Eddie’s
wife; Lenny Perry, Laverne’s boyfriend; and Murray Turner, Petitioner’s family
attorney.6

Petitioner’s defense team inquired into a family history of mental illness as a
potential mitigating factor. In her interview, Beverly Higdon told interviewers that she

6
It is important to bear in mind that while only a handful of individuals’ statements are
summarized above, Petitioner’s counsel interviewed numerous additional individuals, thirty-three in total,
who were personally connected to Petitioner, including friends, neighbors, family members and co-
workers. Only the statements containing relevant mitigation evidence are summarized.
No. 09-5464 Matthews v. Parker Page 35

“underwent psychiatric treatment concerning the death of one of her own [children].”
(Id. at 4123, Higdon Interview Notes.) The interviewees also discussed the alcoholism
in Petitioner’s family. Laverne, in particular, explained that she had drinking problems
when Petitioner was growing up, stating, “God knows I have drunk in my time,” and that
[Petitioner] and Marlene had marital troubles. (Id. at 464, Rep. and Recommendation.)

The interviewees were more forthcoming in their descriptions of Petitioner’s drug
and alcohol abuse. Specifically, Petitioner’s long-time friend and “drinking buddy,”
Eddie Peltier, stated that he and Petitioner spent the afternoon and evening before the
shootings drinking at a local park, that Petitioner was a belligerent drunk, and that when
Petitioner “drank he would not stop [drinking] till he was passed out.” (Id. at 4135,
Eddie Peltier Interview Notes.) Carol Engel, recounted that Petitioner acted “different”
the night before the murders, that Petitioner was “hyper or nervous or something.” (Id.
at 4118, Engel Interview Notes.) Engel stated that the evening before the murders, “at
[the] park, [Petitioner] was drinking heavily,” that “[she] gave [Petitioner] two
[V]aliums” that evening, and that Petitioner “had a bottle of pills and offered some to
[her].” (Id. at 4117-18.) Larry Cruse told investigators that Petitioner “drank a case of
beer a day,” (id. at 4114, Larry Cruse Interview Notes), and Beverly Higdon stated that
at the time, Petitioner “was using pills . . . to work the doubleshift.” (Id. at 4123,
Higdon Interview Notes.)

Smokey Brown, Laverne’s next-door neighbor, also discussed Petitioner’s
drinking and alcohol use. He stated that he did not know Petitioner “too well.” But he
stated that the night before the killings he took Petitioner to get some beer, and that
Petitioner took some of Brown’s medication that evening. (Id. at 463-44, Rep. and
Recommendation.)

Defense counsel also made inquiries regarding Petitioner’s character and
upbringing. Beverly Higdon described Petitioner’s relationship with his estranged
father, and his education. Higdon also stated that Petitioner “care[d] about [his]
children,” and that when “[Petitioner] stayed on her farm and cared for [her] kids and
farm while [she] was away,” he did an impeccable job caring for both the children and
No. 09-5464 Matthews v. Parker Page 36

the farm. (Id.) Laverne described Petitioner’s relationship with his estranged father,
Ernest Matthews, explaining that although she “divorced [Petitioner’s] father [in] 1952
[when Petitioner] was 5 years old [Petitioner was] close to [his] father.” (Id. at 4123,
Laverne Matthews Interview Notes.) Laverne also stated regarding Petitioner’s
upbringing, that the family spent time living in the “projects,” and that Petitioner
completed eighth grade when he was fifteen, at which point he “went to work at [the]
icehouse.” (Id.)

The interviewees also discussed Petitioner’s relationship with Marlene. Brown
stated that he knew that Petitioner worked and had “family problems.” Glen Murray
Turner, the family attorney, testified regarding the warrants Marlene swore out against
Petitioner. He stated that Marlene often swore warrants out against Petitioner, and then
bailed him out. (Id. at 463-44, Rep. and Recommendation.)

Laverne further discussed Petitioner’s domestic difficulties, including the
tensions between the Matthews and Cruse families, and their effect on Petitioner. She
stated that “Mr. Cruse carried a gun all the time [be]cause he was a security guard . . .
[that Petitioner] was totally afraid of him,” and that Laverne “had to have her phone
[number] changed 3 times because of harassing phone calls from the Cruses’ [house].”
(Id. at 4129, Laverne Matthews Interview Notes.) She further told Petitioner’s defense
team that Marlene took out warrants against Petitioner, and “on earlier charges by
Marlene Marlene had had the family car sold and the money used to post [Petitioner’s]
bond on Marlene’s charge against him.” (Id.) Moreover, Laverne recounted that
“Marlene would take drugs . . . and would spend all [of] her money, so that [Petitioner’s]
mother would have to buy groceries for the children.” (Id.) Laverne also stated that
Marlene treated Petitioner badly, that at times “Marlene [would be] out on [the] street
in front of [the] house [and] would give [Petitioner] dirty looks.” (Id.) Petitioner’s
brother, Roger Wayne Matthews, similarly stated that “[Laverne] talked about Marlene’s
harassing [Petitioner by] constantly walking up and down in [] front of the house,
[M]arlene flipping her but[t] at him, lik[e] here it is, you ain’t with me, you know ‘sexual
aggravation.’” (Id. at 4132, Roger Wayne Matthews Interview Notes.)
No. 09-5464 Matthews v. Parker Page 37

The victims’ relatives, Lawrence Cruse, Larry Cruse, Sherry McMichael, and
Raymond McMichael, also stated that Petitioner was “crazy” but not insane. (Id. at 463-
44, Rep. and Recommendation.)

In their depositions, Petitioner’s trial counsel further reinforced that contrary to
Petitioner’s assertion in his habeas petition, his defense team discovered and utilized a
substantial amount of the information at issue. Mr. Busse, one of Petitioner’s trial
counsel, stated that “[much] of these affidavits [presented in support of Petitioner’s
habeas petition were] talking about family problems, a history of alcoholism, things that
[Dr.] Chutkow already knew.” (Id. at 3876, Busse Dep.) Busse further stated that
“[m]uch of that family history . . . came into the trial anyway . . . the problems with the
mother, the problems with the [] wife,” (id.), as did the fact that “the victim had
previously sworn out warrants and dropped them against Mr. Matthews,” and “his
drinking history.” (Id. at 3901.)

iii. Analysis

Petitioner argues that “Matthews’ lawyers or investigators contacted almost thirty
people, but they unreasonably curtailed their mitigation investigation.” (Br. of Pet’r at
23.)

“Counsel’s constitutional duty to investigate a defendant’s background in
preparation for the sentencing phase of a capital trial is well[ ]established.” Harries, 417
F.3d at 637. The Supreme Court has stated that “strategic choices made after less than
complete investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-91.

In assessing whether counsel unreasonably curtailed their mitigation
investigation this Court has held that:

counsel’s failure to make a reasonable investigation of a defendant’s
psychiatric history and family background, and to present mitigating
evidence to the jury at sentencing, can constitute ineffective assistance.
In assessing whether a defendant’s counsel was ineffective at the
mitigation hearing for failing to introduce certain evidence, the focus
No. 09-5464 Matthews v. Parker Page 38

must be on whether the investigation supporting counsel’s decision not
to introduce mitigating evidence of the defendant’s background was itself
reasonable.

Clark v. Mitchell, 425 F.3d 270, 284 (6th Cir. 2005) (citing Wiggins, 539 U.S. at 522-23,
527).

Even in the unique context of mitigation, “[a]n attorney is not expected to follow
up on every possible avenue of inquiry regardless of how improbable it is that that
avenue would lead to useful evidence.” Haliym, 492 F.3 at 712. “Reasonably diligent
counsel may draw a line when they have good reason to think further investigation
would be a waste.” Lundgren, 440 F.3d at 772-73. “Yet, in examining the investigation
that counsel made, a court must not consider only the quantum of evidence already
known to counsel, but also whether the known evidence would lead a reasonable
attorney to investigate further.” Haliym, 492 F.3d at 712 (citing Wiggins, 539 U.S. at
527).

Petitioner’s trial counsel engaged in a significant amount of preparation for
Petitioner’s trial. Although trial counsel did not discover all of the details revealed in
Petitioner’s habeas counsel’s investigation, they did interview thirty-three individuals
acquainted with Petitioner and his crimes. Moreover, in preparing for trial, they inquired
after a broad range of potential mitigation issues, including, Petitioner’s relationships
with the victims, his familial and social relationships, his alcohol and substance abuse,
his upbringing, as well as other significant events in his life. Counsel’s investigative
efforts disclosed significant information on every one of the categories of their alleged
ineffective preparation.

A comparison of the lists of individuals interviewed by Petitioner’s defense team
with those contacted by Petitioner’s habeas counsel reveals that Petitioner’s defense
team contacted Petitioner’s siblings, Beverly Higdon and Jerry Matthews, two of the ten
people Petitioner alleges were overlooked, or whose testimony was underdeveloped.
Furthermore, Petitioner’s defense team considered two additional individuals contacted
by Petitioner’s habeas counsel. Petitioner’s defense team attempted to interview his
No. 09-5464 Matthews v. Parker Page 39

brother Jerry Matthews. However, Jerry provided defense investigators with limited
information, and indicated that he wanted to “stay out of it.” (App. at 463-44, Rep. and
Recommendation.) Additionally, while Anthony Wayne Matthews, Petitioner’s son, was
a competent adult by the time Petitioner’s habeas counsel took his affidavits, he was a
child at the time of Petitioner’s trial. Anthony Wayne Matthews admitted that “[a]t
several times they had to remove [him] from the courtroom” during the trial because he
“was crying, breaking down.” (Id. at 3674, Tr. of Hr’g 3/2/2006.) Anthony Wayne
Matthews was thus hardly an ideal witness at the time of Petitioner’s trial.

The individuals interviewed by Petitioner’s defense counsel also addressed each
of the mitigation categories that Petitioner alleges his counsel failed to adequately
investigate. They discussed Petitioner’s drug and alcohol use, his tumultuous
relationship with his wife, an arm injury he suffered and its effect on his personality and
life, his good reputation within his family as a hard worker, his love for his children, and
particular “good deeds” he performed for his sister and her children. (See id. at 484,
Rep. and Recommendation.)

In assessing the significance of trial counsel’s shortcomings, if any, we note that
several of the witnesses identified in Petitioner’s habeas petition had either refused to
participate in the initial trial investigation, or testified during the trial and offered largely
cumulative evidence on habeas. We have “reject[ed] a requirement that any later-
identified cumulative mitigating evidence must have been introduced in order for
counsel to have been effective.” Clark, 425 F.3d at 286.

We further note that much of the information identified by Petitioner’s habeas
counsel would have been inadmissible hearsay. Several of the individuals identified by
Petitioner’s habeas counsel related second-hand information. We note, by way of
example only, that Rita Baete admitted that she did not “have any personal knowledge
of” the full extent of Laverne’s drinking, or that Petitioner’s brother, Roger Wayne
Matthews, had mental difficulties that resulted his spending time in the stockade while
in the army. (See App. at 3591-92, Tr. of Hr’g 3/2/2006.) Linda Matthews, Jerry
Matthews’ wife, discussed that Petitioner “had a lot of money when he came off the
No. 09-5464 Matthews v. Parker Page 40

barges and [she] felt like Lavern[e] was taking advantage of that situation.” (Id. at 3360)
However, Linda Matthews did not have personal information regarding whether
Petitioner gave his mother money, rather her “knowledge of that [came] through other
people.” (Id.) Similarly, Anna Rose Seward described Laverne’s inflammatory
statements to Petitioner regarding Marlene’s behavior. However, Seward was not
present when Laverne made the statements in question, and only heard about the
incidents through others. (See id. at 3629.)

After comparing the undiscovered and the discovered evidence, we find, as aptly
stated by the magistrate judge, that “[a] review of [Petitioner’s trial counsel’s pretrial
preparation] reveals that counsel’s investigation was much more thorough than Petitioner
portrays in his petition and supplemental brief.” (Id. at 460, Rep. and Recommendation.)
We have found counsel ineffective for investigating significantly less than did
Petitioner’s counsel. See, e.g., Carter, 218 F.3d at 597 (“[D]efense counsel made no
investigation into [petitioner’s] family, social or psychological background and that the
failure to do so constituted representation at a level below an objective standard of
reasonableness.”); Hamblin v. Mitchell, 354 F.3d 482, 490-91 (6th Cir. 2003)
(“[Counsel] did not obtain any family or social history nor did he contact any of
[petitioner’s] family members except . . . the mother of [petitioner’s] daughter . . . .
Counsel also failed to gather any medical information, including psychological
information on [petitioner].”). Therefore, we do not find that Petitioner’s counsel’s
preparation of mitigation evidence fell below “an objective standard of reasonableness.”

In light of the information gleaned through their investigation, Petitioner’s trial
counsel decided that their strategy in both the culpability and penalty phases of trial
would be to argue that Petitioner was suffering from extreme emotional disturbance
when he killed his wife and mother-in-law. They determined

at that time . . . that [the] defense in the guilt phase had to be compatible
with the defense in the penalty phase. And that was a strategic
consideration that the attorneys and Mr. Matthews discussed [in
determining their trial strategy] because [they] wanted to try to maintain
credibility with the jury; that trust us in the guilt phase and that will carry
over in the penalty phase.
No. 09-5464 Matthews v. Parker Page 41

(App. at 3840, Busse Dep.) Therefore, Petitioner’s trial counsel decided “to present a
defense of extreme emotional disturbance throughout the case with the hope of reducing
the murder to manslaughter o[r] if that [was] unsuccessful, with the hope of carrying that
through the penalty phase so that the jury would not find the death penalty because of
the extreme emotional disturbance; that being, [Petitioner’s] principal mitigating factor.”
(Id. at 3853.)

To that end, Petitioner’s trial counsel maintained that they would have declined
to present information at trial that in their estimation would have interfered with the
viability of Petitioner’s EED defense. For example, during his deposition, Busse, one
of Petitioner’s trial attorneys, was asked whether “there [was] anything in what [Anna
Rose Seward] ha[d] to offer in her affidavit that’s inconsistent with the defense of EED
. . . or with any of the evidence that was presented in the penalty phase.” (Id. at 3877.)
Busse replied that Seward was

presenting some of the family history, and that can be useful or that can
backfire. For instance, there’s a statement [in her affidavit] that says,
“the Matthews children, including [Petitioner], did not receive discipline
or attention from their mother.” If you stand accused of a double murder
telling a jury that it [is] somehow connected to the fact that the mother
didn’t have proper discipline . . . I can’t say whether . . . that kind of
thing would be beneficial or detrimental. It’s a trial strategy.

(Id.) Therefore, Petitioner’s trial counsel determined that the EED defense would be the
most effective defense, and pursued and presented information tending to demonstrate
that Petitioner was operating under the influence of EED.

We do not hesitate to find counsel ineffective for failing to adequately investigate
mitigation evidence. See Harries, 417 F.3d at 637. We “will not, however, second-
guess the strategic choices of trial counsel if,” as here, “they were made after a thorough
investigation.” Haliym, 492 F.3d at 711. Where counsel performed an adequate
mitigation investigation, we accord counsel’s strategic trial decisions “a heavy measure
of deference.” Id. at 712. “[S]trategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable.” Id. at 711 (quoting
Strickland, 466 U.S. at 690).
No. 09-5464 Matthews v. Parker Page 42

In this case, after assessing the information they gleaned through their adequate
mitigation investigation, Petitioner’s counsel decided that arguing that Petitioner
suffered from EED at the time he committed the crimes was the best mitigation strategy.
Counsel made this strategic trial decision in light of the extensive information that they
uncovered in their investigation. We decline to find that counsel performed ineffectively
in making these “strategic choices.”

Petitioner’s trial counsel’s representation did not fall below an objective standard
of reasonableness in investigating and presenting mitigating evidence for the penalty
phase of Petitioner’s trial.

2. Ineffective Assistance of Trial Counsel for
Failure to Object to Prosecutorial
Misstatements of EED Law in Culpability and
Penalty Phases
Kentucky’s murder statute under which Petitioner was tried stated that a
defendant’s actions were not murder “if he acted under the influence of extreme
emotional disturbance for which there was a reasonable explanation or excuse, the
reasonableness of which is to be determined from the viewpoint of a person in the
defendant’s situation under the circumstances as the defendant believed them to be.”
Ky. Rev. Stat. § 507.020. During Petitioner’s trial, the prosecutor stated that to find
Petitioner guilty of murder the jury had to “find that he was not acting under the
influence of extreme emotional disturbance for which there was a reasonable
justification or excuse.” (Br. of Pet’r at 45.) Petitioner argues that his trial counsel
provided ineffective assistance in failing to object to the prosecutor’s formulation of the
EED definition.

In adjudicating Petitioner’s RCr 11.42 motion for post-conviction review, the
Kentucky Supreme Court held that the prosecutor did not misstate Kentucky law. The
Kentucky Supreme Court explained that in Petitioner’s trial “[t]he prosecutor did not
misstate the law, he only observed that there is an objective element to the extreme
emotional disturbance standard. The statements made by the prosecutor in closing
No. 09-5464 Matthews v. Parker Page 43

argument related to the first prong of the test which is an objective one.” (App. at 402,
Matthews v. Commonwealth, No. 96-SC-805-MR (Nov. 20, 1997).)

We defer to state supreme courts’ articulation of their own law. See Gall II, 231
F.3d at 303. Therefore, we give great weight to the Kentucky Supreme Court’s statement
that under Kentucky law, EED had both subjective and objective components. Based
on the Kentucky Supreme Court’s explication of its EED law in effect at the time of
Petitioner’s trial, we find that the prosecutor did not misstate the law during Petitioner’s
trial. Petitioner’s counsel were thus not ineffective for failing to object to a proper
statement of Kentucky law.

Accordingly, Petitioner’s trial counsel were not ineffective for failing to
investigate and present further mitigating evidence, or for failing to object to
prosecutor’s definition of EED under Kentucky law.

VII. Exclusion of Additional EED Evidence in Penalty Phase

Petitioner asserts that the Kentucky trial court violated his rights under the Sixth,
Eighth, and Fourteenth Amendments when it excluded testimony of six witnesses during
the mitigation phase of his trial. Petitioner sought to introduce additional testimony
regarding his marital difficulties and the tensions between the Matthews and Cruse
families.

We have stated that “[i]n a capital case the sentencer may not be precluded from
considering, as a mitigating factor, any aspect of defendant’s character or record and any
of the circumstances of the offense that the defendant proffers as a basis for a sentence
less than death.” Lundgren, 440 F.3d at 766 (quoting Mills v. Maryland, 486 U.S. 367,
374 (1988)). Moreover, “[i]t is clear that this rule limits the traditional discretion of state
courts to exclude evidence based on state evidentiary rules,” Alley v. Bell, 307 F.3d 380,
398 (6th Cir. 2002), and requires that state courts making evidentiary decisions in capital
cases err on the side of admission.
No. 09-5464 Matthews v. Parker Page 44

Nevertheless,

the Eighth Amendment does not deprive the State of its authority to set
reasonable limits upon the evidence a defendant can submit, and to
control the manner in which it is submitted. Rather, States are free to
structure and shape consideration of mitigating evidence in an effort to
achieve a more rational and equitable administration of the death penalty.

Oregon v. Guzek, 546 U.S. 517, 526 (2006). Nothing in Supreme Court precedent
“limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing
on the defendant’s character, prior record, or the circumstances of his offense.” Alley,
307 F.3d at 399 (quoting Lockett, 438 U.S. at 604 n.12).

In discussing the trial court’s decision to exclude this mitigation evidence, the
Kentucky Supreme Court stated that “[t]his claim of error runs to objections sustained
as to certain details of the testimony from [Petitioner’s] mother, from a longtime friend,
and from a former attorney who had been involved in representing both the [Petitioner]
and his wife when various domestic warrants between the two surfaced in court.”
Matthews I, 709 S.W.2d at 419. As a matter of state law, the Kentucky Supreme Court
upheld the trial court’s exclusion of the evidence due to its irrelevance. “In this case, the
trial court permitted extensive presentation of evidence regarding previous domestic
difficulties. The instances which are the subject of [Petitioner’s] complaint were remote
transactions between third parties and the deceased wife. Connection to [Petitioner’s]
state of mind at the time of the crime was non-existent.” Id.

Petitioner sought to introduce additional evidence regarding his acrimonious
relationship with his victims, as well as evidence relating to Marlene’s mistreatment of
her previous husband. Under Kentucky law, at the sentencing phase of a capital trial,
the jury is permitted to consider the mitigating evidence presented at the sentencing
phase, and all of the culpability phase evidence. See Gall I, 607 S.W.2d at 111.
Petitioner had previously presented significant evidence regarding his immediate and
extended domestic disputes in the form of testimony from friends, relatives, and his
psychiatrist.
No. 09-5464 Matthews v. Parker Page 45

The Constitution does not guarantee a defendant, even a capital defendant, an
unfettered license to present additional evidence that might be cumulative, repetitive, or
questionably relevant. See Oregon, 546 U.S. at 526; Alley, 307 F.3d at 399. The
Kentucky courts did not err in upholding the trial court’s decision, and the district court
did not err in refusing to grant Petitioner’s habeas corpus petition on this ground.

VIII. Kentucky Murder Statute’s Failure to Define EED

The Kentucky murder statute under which Petitioner was tried stated that a
person commits murder when,

with the intent to cause the death of another person, he causes the death
of such person or of a third person; except that in any prosecution a
person shall not be guilty under this subsection if he acted under the
influence of extreme emotional disturbance, the reasonableness of which
is to be determined from the viewpoint of a person in the defendant’s
situation under the circumstances as the defendant believed them to be.

Ky. Rev. Stat. § 507.020(1)(a). As previously indicated, the statute did not define
extreme emotional disturbance.

It is true that just months after the Kentucky Supreme Court decided Petitioner’s
appeal, the Kentucky Supreme Court provided a definition for EED.

Extreme emotional disturbance may reasonably be defined as follows:
Extreme emotional disturbance is a temporary state of mind so enraged,
inflamed, or disturbed as to overcome one’s judgment, and to cause one
to act uncontrollably from the impelling force of the extreme emotional
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 reasonable explanation or excuse therefor, the reasonableness is to
be determined from the viewpoint of a person in the defendant’s situation
under circumstances as defendant believed them to be.

McClellan v. Commonwealth, 715 S.W.2d 464, 468-69 (Ky. 1986). In defining EED,
the Kentucky Supreme Court admitted its error in previously failing to provide a
definition for EED.
No. 09-5464 Matthews v. Parker Page 46

To say that we know it when we see it, overlooks the fact that it is not the
court but a jury that must make a factual determination of whether a
particular defendant acted under the influence of extreme emotional
disturbance. Without some standard or definition a jury is left to
speculate in a vacuum as to what circumstances might or might not
constitute extreme emotional disturbance.

Id. at 467.

However, under AEDPA, this Court may only grant a petition for habeas corpus
under § 2254 if a conviction “(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d). A mistake of state law is not itself a basis for
habeas relief. See Wilson v. Corcoran, 562 U.S. __, 131 S. Ct. 13, 16 (2010) (per
curiam); Baze, 371 F.3d at 322.

In reviewing this ground for habeas relief, the relevant question is whether
Kentucky’s failure to define EED rendered the statute void for vagueness under the due
process clause of the Fourteenth Amendment. Quoting the Supreme Court, this Court
has held that an element of a state murder statute “is not unconstitutional if it has some
common-sense core of meaning that criminal juries should be capable of understanding.”
Carter, 218 F.3d at 608 (quoting Tuilaepa v. California, 512 U.S. 967, 973 (1994)).

Kentucky law at the time of Petitioner’s crimes did not require the trial court to
instruct the jury regarding the definition of EED, stating, “suffice [it] to say that we
know [EED] when we see it.” Edmonds, 586 S.W.2d at 27. In Proffitt v. Florida, 428
U.S. 242, 257 (1976), the Supreme Court upheld the constitutionality of an undefined
EED instruction. The Supreme Court maintained that “[w]hile . . . questions and
decisions” regarding whether a defendant was suffering from EED “may be hard, they
require no more line[]drawing than is commonly required of a factfinder in a lawsuit.”
Id. Therefore, although the undefined EED element under which Petitioner was tried
could have been clearer, and may have been error under Kentucky law, it does not
No. 09-5464 Matthews v. Parker Page 47

appear that the Supreme Court would consider it so egregiously vague as to violate due
process.

IX. Ineffective Assistance of Appellate Counsel

The Sixth Amendment guarantees appellate counsel to a criminal defendant.
Haliym, 492 F.3d at 694 (quoting Evitts v. Lucey, 469 U.S. 387, 396 (1985)). As is the
case when evaluating a claim of ineffective assistance of trial counsel, “[i]n considering
whether the assistance of [appellate] counsel was constitutionally ineffective, [this
Court] applie[s] the . . . standard of Strickland v. Washington.” Id.

In Strickland, the Supreme Court stated that “[t]he benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.” Strickland, 466 U.S. at 686. Thus, to prevail on an ineffective
assistance of appellate counsel claim, a petitioner “must demonstrate that counsel’s
representation fell below an objective standard of reasonableness and that the [petitioner]
was prejudiced by the ineffective assistance of counsel.” Carter, 218 F.3d at 591 (citing
Strickland, 466 U.S. at 687). “Representation is deficient,” failing the first prong of the
Strickland test, “when counsel made errors so serious that counsel was not functioning
as the counsel guaranteed the defendant by the Sixth Amendment.” Id. To satisfy the
second, prejudice prong of Strickland, a petitioner “need not show that counsel’s
deficient conduct more likely than not altered the outcome in the case, rather, only that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Lundgren, 440 F.3d at 770 (citing
Strickland, 466 U.S. at 494). A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 799.

To provide guidance regarding Strickland’s application to claims of ineffective
assistance of appellate counsel, this Court has enumerated several

considerations that ought to be taken into account in determining whether
an attorney on direct appeal performed reasonably competently. (1)
Were the omitted issues significant and obvious?; (2) Was there arguably
No. 09-5464 Matthews v. Parker Page 48

contrary authority on the omitted issues?; (3) Were the omitted issues
clearly stronger than those presented?; (4) Were the omitted issues
objected to at trial?; (5) Were the trial court’s rulings subject to deference
on appeal?; (6) Did appellate counsel testify in a collateral proceeding as
to his appeal strategy and, if so, were the justifications reasonable?;
(7) What was appellate counsel’s level of experience and expertise?;
(8) Did the petitioner and appellate counsel meet and go over possible
issues?; (9) Is there evidence that counsel reviewed all the facts?;
(10) Were the omitted issues dealt with in other assignments of error?;
(11) Was the decision to omit an issue an unreasonable one which only
an incompetent attorney would adopt?

Mapes v. Coyle, 171 F.3d 408, 427-28 (6th Cir. 1999).

We have explained that “in reviewing a lawyer’s performance, a court’s scrutiny
must be highly deferential.” Caver v. Straub, 349 F.3d 340, 348 (6th Cir. 2003) (quoting
Strickland, 466 U.S. at 689). Assessing appellate counsel’s performance “requires that
every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Id. (same). Nor does “the Strickland performance
standard . . . require an attorney to raise every non-frivolous issue on appeal. Indeed, the
process of winnowing out weaker arguments on appeal and focusing on those more
likely to prevail is the hallmark of effective appellate advocacy.” Id. (quoting Jones v.
Barnes, 463 U.S. 745, 751-52 (1983)). Therefore, “it is difficult to demonstrate that an
appellate attorney has violated the performance prong where the attorney presents one
argument on appeal rather than another. In such cases, the petitioner must demonstrate
that the issue not presented was clearly stronger than issues that counsel did present.”
Id. (quoting Smith v. Robbins, 528 U.S. 259, 289 (2002)).

Petitioner argues, based on the Mapes factors, that his appellate counsel were
constitutionally ineffective for failing to argue for a change in Kentucky law defining
EED before the Kentucky Supreme Court. Petitioner identifies two pieces of
information to support his contention that the omitted argument was “significant and
obvious,” and more compelling than the arguments raised. First, Petitioner points to the
fact that at least six briefs to the Kentucky Supreme Court raised the issue between 1981
No. 09-5464 Matthews v. Parker Page 49

and 1986, while Petitioner’s direct appeal was pending. Second, Petitioner points out
that less than a year after Petitioner’s direct appeal concluded, the Kentucky Supreme
Court overruled prior Kentucky law, and defined EED in the McClellan case. Petitioner
argues that the proximity of McClellan to Petitioner’s appeal demonstrates that the
Kentucky Supreme Court was primed to overrule its prior precedent at the time it heard
Petitioner’s appeal.

Petitioner also states that trial counsel objected to the court’s failure to define
EED, and that as a pure question of law it would not have been subject to deference on
appeal. Petitioner further points to appellate counsel’s testimony to the magistrate judge
that their failure to raise the argument was an oversight rather than a strategic decision.
Finally, Petitioner notes that of his three appellate attorneys, only one had ever been
involved in a capital appeal, and none had more than six years of legal experience. (See
App. at 519-22, Rep. and Recommendation.)

Many of the Mapes factors suggest that Petitioner’s appellate counsel were
ineffective. However, in enumerating these factors, we have admonished that
“[m]anifestly, this list is not exhaustive, and neither must it produce a correct score; we
offer these inquiries merely as matters to be considered.” Mapes, 171 F.3d at 428. With
the benefit of hindsight, it seems that the omitted challenge to Kentucky’s failure to
define EED may have carried the day in Petitioner’s direct appeal in the Kentucky
Supreme Court. However, in 1985, when Petitioner’s case was decided by the Kentucky
Supreme Court, this conclusion was far from clear. At that time, the Kentucky Supreme
Court’s statement that it was “unnecessary to define extreme emotional disturbance. We
know it when we see it,” Edmonds, 586 S.W.2d at 27, was settled law. Moreover, that
six briefs to the Kentucky Supreme Court raised the argument highlights the fact that in
the years preceding Petitioner’s appeal, the Kentucky Supreme Court declined to
overrule itself on several occassions, suggesting that a challenge to Kentucky EED law
was not obviously a winning argument.
No. 09-5464 Matthews v. Parker Page 50

We conclude that Petitioner’s appellate counsel did not provide ineffective
assistance by failing to argue that the Kentucky Supreme Court change Kentucky law
to provide a definition of EED.

CONCLUSION

For the foregoing reasons, we REVERSE the decision of the district court, and
GRANT Petitioner’s petition for a writ of habeas corpus based on the Kentucky courts’
violation of Petitioner’s due process rights by impermissibly shifting onto Petitioner the
burden of proof with respect to extreme emotional distress, where proof of the absence
of extreme emotional distress was an element of murder under Kentucky law, and the
state failed to prove this element.

We also REVERSE the decision of the district court, and GRANT Petitioner’s
petition for a writ of habeas corpus based on flagrant prosecutorial misconduct at
Petitioner’s trial, which interfered with Petitioner’s due process rights.

We AFFIRM the decision of the district court, and DENY Petitioner’s petition
for a writ of habeas corpus based on ineffective assistance of trial and appellate counsel,
the Kentucky courts’ failure to define extreme emotional distress, the Kentucky trial
court’s exclusion of additional extreme emotional distress evidence during the trial’s
penalty phase, and the Kentucky murder statute’s purported vagueness.

The State of Kentucky is hereby ordered to release Petitioner from custody unless
a new trial consistent with this opinion is commenced within 180 days. We leave it to
the State of Kentucky to determine in the first instance whether and to what extent any
retrial is consistent with the double jeopardy clause and state law.
No. 09-5464 Matthews v. Parker Page 51

____________________________________________________

CONCURRING IN PART AND DISSENTING IN PART
____________________________________________________

SILER, Circuit Judge, concurring in part and dissenting in part. I would affirm
the district court’s judgment denying the petition for a writ of habeas corpus. Therefore,
I dissent on Parts IV and V of the majority opinion. In all other respects, I concur in the
conclusions of the majority opinion, except where it authorizes the issuance of a writ of
habeas corpus. This concurrence/dissent will only discuss those portions of the majority
opinion with which I disagree, to wit, the sufficiency of the evidence and prosecutorial
misconduct.

I. Shifting the Burden of Proof on EED

David Eugene Matthews asserts that he was denied due process of law under the
Fourteenth Amendment because the decision by the Kentucky Supreme Court in
Matthews v. Commonwealth, 709 S.W.2d 414, 420-421 (Ky. 1985), “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Put another way,
he asserts that the evidence was insufficient to convict him of murder because “the Due
Process Clause protects the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime with which he is
charged.” In re Winship, 397 U.S. 358, 364 (1970).

The certificate of appealability does not include a claim that the instructions to
the jury were erroneous. Therefore, we must look to see if the Supreme Court of
Kentucky failed to follow the criteria in 28 U.S.C. § 2254. The Kentucky Supreme
Court did not shift the burden of proof to the defendant under the EED defense.
Although it cited the case of Wellman v. Commonwealth, 694 S.W.2d 696 (Ky. 1985),
it went on to say that the “trial court’s instructions in regard to extreme emotional
disturbance were adequate, and the proof supported the jury’s findings of intentional
murder.” Matthews, 709 S.W.2d at 421. It did not apply Wellman to Matthews’s case,
because it assumed that the prosecution bore the burden of proving absence of EED once
No. 09-5464 Matthews v. Parker Page 52

Matthews produced some evidence of EED. Unlike the decision in Gall v.
Commonwealth, 607 S.W.2d 97 (Ky. 1980) (Gall I), it addressed the sufficiency of the
evidence claim “head-on,” and the proof at trial was sufficient to show the absence of
EED beyond a reasonable doubt.

The majority is correct in its conclusion that EED was only an element of murder
if the defendant raised a reasonable doubt as to its presence. It further concludes that
Matthews had the initial burden of production to show EED. Matthews met that burden,
but the Kentucky Supreme Court did not shift the burden of proof to the defendant and
its opinion did not say it did. Moreover, the murder instructions, Numbers 3 and 7 in this
case, clearly show that the burden of proof had never shifted to Matthews. They read
as follows:

You will find the defendant, David Eugene Matthews, guilty
under this instruction if, and only if, you believe from the evidence
beyond a reasonable doubt, all of the following:
(a) That in this county on or about the 29th day of June, 1981, he
shot [the victims] with a pistol which resulted in [their] death[s]; AND
(b) That in so doing he caused [the victims’ deaths] intentionally
and not while acting under the influence of extreme emotional
disturbance for which there was a reasonable justification or excuse
under the circumstances as he believed them to be.

The remainder of the instructions included finding the defendant not guilty unless the
jury was satisfied beyond a reasonable doubt he was guilty. There was no jury
instruction which required Matthews to have either the burden of production or of proof.

Although Matthews claims that the prosecution produced no evidence to
contradict his threshold showing of EED in his case, the Supreme Court of Kentucky
found that the prosecution had rebutted the evidence of EED sufficiently to present the
issue to the jury. It recited the facts that “[i]n addition to the circumstances of the crime,
the proof was that when he returned to his mother’s house after the crime, . . . he took
steps to hide the gun and clean his clothes. Shortly thereafter, he gave a false statement
to the police.” Matthews, 709 S.W.2d at 421.
No. 09-5464 Matthews v. Parker Page 53

Obviously, we must follow the decision in Gall v. Parker, 231 F.3d 265 (6th Cir.
2000) (Gall II), if it is applicable. However, we stated in Gall II that the
Commonwealth did “not even claim to have” rebutted the showing of EED in the brief
it filed in this court. Id. at 291. The majority opinion here holds that the Kentucky
Supreme Court should have followed Gall I in the direct appeal. The Kentucky Supreme
Court did cite Gall I for its authority that the Commonwealth did not have to produce
direct evidence to show an absence of EED. Matthews, 709 S.W.2d at 421. The
majority here admits that the Commonwealth did not have to produce direct evidence to
sustain its burden of proof on the absence of EED. Moreover, in his brief before this
court, Matthews argues that the Kentucky Supreme Court “clearly applied Gall I.” His
argument appears to be that he was saddled with the alleged unconstitutional burden of
production for EED evidence announced in Gall I.

The law in Kentucky was that when a party raised a defense such as EED, the
Commonwealth was not required to rebut it with an expert witness, but could rebut
evidence of EED through cross-examination of the expert witness and through all of the
circumstances of the crime. See, e.g., Hayes v. Commonwealth, 625 S.W.2d 583, 585-86
(Ky. 1981) (finding the cross- examination of the expert sufficiently raised factual issues
as to whether the defendant acted under EED); see also Ice v. Commonwealth, 667
S.W.2d 671, 678 (Ky. 1984) (finding lay testimony used to rebut an expert’s testimony
as to sanity was sufficient); Newsome v. Commonwealth, 366 S.W.2d 174, 177 (Ky.
1963) (finding insanity to be an issue of fact to be determined by the jury even though
the accused introduced evidence of insanity). This rule is similar to that in other states.
See, e.g., State v. Coe, 233 S.W.3d 241, 251 (Mo. Ct. App. 2007) (“When the state has
the burden of proving a negative fact, . . . it may be proven by circumstantial
evidence.”); State v. Gonzalez-Rivera, 713 A.2d 847, 853 (Conn. App. Ct. 1988)
(affirming court’s rejection of the affirmative defense of EED where the prosecution
rebutted expert testimony with only circumstantial evidence of events surrounding the
crime).
No. 09-5464 Matthews v. Parker Page 54

The majority asserts that these cases shed little light on whether the prosecution
carried its burden on EED in this case. Admittedly, some of these cases involve an
affirmative defense under which the accused bears the burden of persuasion, but, as the
majority agrees, the burden of production was upon Matthews and he produced his
expert witness. As the district court found:

What is required is that at the conclusion of the evidence, a reasonable
jury be able to find beyond a reasonable doubt the absence of EED. . . .
Substantial evidence in this case allowed reasonable jurors to do so.

Matthews v. Simpson, 603 F. Supp. 2d 960, 972 (W.D.Ky. 2009).

In Gall II, we held that there was insufficient evidence to sustain the conviction.
231 F.3d at 288. The evidence in this case was much different from the evidence
produced in Gall. For instance, Gall introduced the testimony of two experts that he
suffered from a severe psychotic disorder, specifically chronic paranoid schizophrenia.
Against that, the Commonwealth admitted it had not rebutted the evidence of EED. Id.
at 291. In Matthews’s case, he had one expert who testified that Matthews was suffering
from an adjustment disorder, “causing temporary impairment of judgment, poor self-
control and diminished awareness.” Matthews, 709 S.W.2d at 417. The psychiatrist did
not find that Matthews suffered from a psychosis. In addition, the Commonwealth
rebutted the EED evidence not only by the cross-examination of the psychiatrist, but also
by all of the circumstances of the homicide as outlined in Matthews. The cumulative
effect of the evidence demonstrates that the trial court did not err when it denied the
motion for a directed verdict of acquittal and allowed the jury to decide the EED issue
under the instructions, which did not shift the burden of proof to Matthews. That
procedure was not contrary to Kentucky law at the time nor was it contrary to any
Supreme Court case.1

1
The Supreme Court has previously chastised us in another habeas corpus case by saying: “We
have repeatedly held that a state court’s interpretation of state law, . . binds a federal court sitting in habeas
corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005).
No. 09-5464 Matthews v. Parker Page 55

II. Prosecutorial Misconduct

The majority finds that the closing argument by the prosecutor in the guilt phase
of the trial denied Matthews his due process rights and thus was in violation of the
Constitution.

First, we should determine the standard of review. Although the magistrate judge
reviewed this claim de novo because the Kentucky Supreme Court specifically did not
address the claim, Matthews, 603 F. Supp. 2d at 1072, and the district judge adopted that
part of the magistrate judge’s recommendation, see id. at 965, that was erroneous. The
Kentucky Supreme Court ruled on that issue in summary fashion when it stated:

Appellant presents thirty-seven (37) separate assignments of error. We
have considered all of these issues. In this opinion time and space dictate
that we limit to the issues that merit discussion. As to those we do not
discuss, we note, for the record, that they have been considered and
rejected.

Matthews, 709 S.W.2d at 417. Since oral argument in this case, the Supreme Court
decided Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011), which requires us to
accord AEDPA deference to the issues decided by the state courts. Therefore, I agree
with the majority on the standard of review of full AEDPA deference.

The majority correctly states the two-step inquiry to determine whether
prosecutorial misconduct rises to the level of unconstitutionality, that is, that the conduct
must be both improper and flagrant. Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir.
2006). If the argument was improper, then we should consider four factors to decide
whether “the improper acts were sufficiently flagrant to warrant reversal: (1) whether
the evidence against the defendant was strong, (2) whether the conduct of the
prosecution tended to mislead the jury or prejudice the defendant, (3) whether the
conduct or remarks were isolated or extensive, and (4) whether the remarks were made
deliberately or accidently.” Slagle v. Bagley, 457 F.3d 501, 515-16 (6th Cir. 2006). This
constitutional “line drawing” in prosecutorial misconduct cases is necessarily imprecise
No. 09-5464 Matthews v. Parker Page 56

and the touchstone of the due process analysis is the fairness of the trial, not the
culpability of the prosecutor. Id. at 516.

It is arguable that at least a portion of the prosecutor’s comments was improper.
We condemned language about “the defense of last resort” in Gall II, 231 F.3d at 314-
15. However, the remarks were not so egregious or flagrant as to warrant reversal of the
convictions based on the four relevant factors from Slagle. First, the evidence against
the defendant was strong, as counsel admitted that Matthews had killed the two victims.
The evidence of whether Matthews was under the influence of EED at the time of the
offense was not as compelling, but there was evidence that Matthews did not suffer from
this impairment at the time of the killings.

Second, any prejudicial effect appears minimal. As the magistrate judge related:

[V]ery quickly after making these statements the
prosecutor backpedaled and stated that he was not trying
to imply that either counsel or Dr. Chutkow was unethical
or had fabricated testimony. In fact, the prosecutor stated
that Dr. Chutkow was telling the jury the truth.

Matthews, 603 F. Supp.2d at 1082.

Third, the comments were isolated. Matthews does not cite to any other instance
where the prosecutor allegedly denigrated him or his counsel. As for the last element,
the magistrate judge held that it was difficult to say whether the prosecutor’s remarks
were deliberate or accidental. However, he came to the conclusion that “they were most
probably unintentional.” Id. I agree with the magistrate judge’s conclusions. Although
the last line of defense argument could have been improper, the withdrawal of the
remarks by the prosecutor, without any objection by the defense, takes it out of the
flagrant category. Like the magistrate judge and district court, I find that the Kentucky
Supreme Court’s decision denying this claim was a reasonable application of
constitutional law.
No. 09-5464 Matthews v. Parker Page 57

Therefore, because I believe the Kentucky Supreme Court did not decide this
case contrary to or by an unreasonable application of Supreme Court law, I would affirm
the decision of the district court in denying the writ of habeas corpus.