Hodge v. Haeberlin

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0326p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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BENNY LEE HODGE,
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Petitioner-Appellant,
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No. 06-6027
v.
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Respondent-Appellee. -
GLENN HAEBERLIN, Warden,
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Appeal from the United States District Court
for the Eastern District of Kentucky at London.
No. 04-00185—Karen K. Caldwell, District Judge.
Argued: October 21, 2008
Decided and Filed: September 4, 2009
Before: MARTIN, ROGERS, and COOK, Circuit Judges.

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COUNSEL
ARGUED: Laurence E. Komp, LAW OFFICE, Manchester, Missouri, for Appellant. Julie
Scott Jernigan, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort,
Kentucky, for Appellee. ON BRIEF: Laurence E. Komp, LAW OFFICE, Manchester,
Missouri, Armand I. Judah, JUDAH-McLEOD, Louisville, Kentucky, for Appellant. Ian G.
Sonego, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky,
for Appellee.
ROGERS, J., delivered the opinion of the court, in which COOK, J., joined.
MARTIN, J. (pp. 29-35), delivered a separate dissenting opinion.
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OPINION
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ROGERS, Circuit Judge. The district court properly denied habeas corpus in this
case because petitioner Benny Lee Hodge has not shown that his trial counsel rendered
ineffective assistance. A jury convicted Hodge and sentenced him to death for his role in a

1
No. 06-6027 Hodge v. Haeberlin Page 2

1985 double murder. Hodge advances numerous claims of ineffective assistance of counsel,
including a claim that counsel prevented Hodge from testifying on his own behalf and that
counsel ineffectively cross-examined the prosecution’s key witness. Because the record does
not show that any alleged mistake by Hodge’s counsel meets the standards for deficient
performance and prejudice established by Strickland v. Washington, 466 U.S. 668 (1984),
Hodge is not entitled to habeas relief.

I. Background

Edwin and Bessie Morris were murdered in their home in Jackson County,
Kentucky, on the night of June 16, 1985. The elderly couple’s adult son discovered their
bodies the next morning. A Jackson County grand jury indicted petitioner Benny Lee Hodge
and his co-defendants Donald Bartley and Roger Dale Epperson for robbery, burglary, and
murder. After a change of venue to Laurel County, Hodge was tried in 1987. Donald
Bartley testified against Hodge at trial. According to Bartley, he, Epperson, and Hodge
made extensive plans to carry out the robbery. Among other things, they rented a campsite
to serve as a staging ground, purchased gloves, and borrowed a van registered under
someone else’s name to shield their identities. Bartley testified that on the night of the
murders, he remained in the van as a lookout while Hodge and Epperson entered the Morris
home. From Bartley’s vantage point in the van, he could observe some of the events that
took place in the house through the window. Bartley testified that he observed the other two
men enter the house, draw their weapons, and knock Mr. Morris to the floor. Although
Bartley was unable to see the remainder of the events, he heard several shots before Hodge
and Epperson emerged from the house with money, Mr. Morris’s handgun, and other
valuables. Bartley testified that after the murders, the men wiped down the three guns
(Hodge’s, Epperson’s, and Mr. Morris’s) and threw them in the river. These guns were
never recovered, despite Bartley’s participation in the search. Bartley also testified that the
men returned to the campsite and burned several incriminating items, including Hodge’s
blood-stained clothes. Sherry Hamilton, Hodge’s then wife, did not testify at trial but spoke
openly with the media claiming that Hodge was not involved with the murders.
No. 06-6027 Hodge v. Haeberlin Page 3

The jury convicted Hodge of all counts and sentenced him to death. The Supreme
Court of Kentucky later vacated this conviction because the trial court had not conducted an
individualized voir dire on the issue of pre-trial publicity.

The Commonwealth re-tried Hodge in 1996. Bartley refused to cooperate in the re-
trial. After Bartley refused to testify, the judge declared Bartley unavailable and allowed the
Commonwealth to read Bartley’s previous testimony to the jury. Hodge’s counsel objected
on the ground that the previous testimony included a statement that Bartley had not received
a deal whereas Bartley had since filed a verified statement in his own post-conviction action
outlining a favorable agreement he had made with the Commonwealth in return for his
testimony against Hodge.

In addition to the previous testimony of Bartley, the Commonwealth introduced the
testimony of Hodge’s ex-wife Sherry Hamilton. Hamilton related several instances in which
Hodge allegedly told her that he committed the murders. Specifically, she testified that
Hodge told her that he and Bartley entered the Morrises’ home in order to rob them, that Mr.
Morris went for a gun on the top of the refrigerator, and that Hodge and Mr. Morris got into
a scuffle that ended with Hodge’s shooting Mr. Morris. Thereafter, Bartley took Mrs. Morris
into the bedroom and shot her. Hodge asked if Mrs. Morris was dead and, when Bartley said
that he thought so, Hodge returned to the bedroom and shot Mrs. Morris again to make sure
she was dead. Hamilton admitted that she had stated many times in the past that Hodge had
not committed the murders. She also admitted to being an accomplished liar. She admitted
to stealing from her employer, lying to the police, and participating in an immigration scam.
She also admitted to bragging about her ability to lie effectively by mixing a bit of truth into
a fabricated account. She asserted that although in the past, when she was romantically
involved with Hodge, she had lied about Hodge’s participation, she was now coming
forward with the truth in the interest of justice.

The Commonwealth also presented testimony from the victim’s son, Bobby Morris.
Morris testified about his acquaintance with Roger Epperson in the months leading up to the
murders, about his father’s well-known practice of keeping large sums of cash in the house,
about the layout of his parents’ home, and about other matters that set the context for the
crimes committed against his parents. In the course of his testimony, Morris described some
No. 06-6027 Hodge v. Haeberlin Page 4

details of his father’s appearance on the morning he was discovered dead. Although
Morris’s testimony was emotional at times, Hodge’s counsel did not object to the testimony.

Several of the defense’s witnesses and documents are also relevant to this appeal.
The defense introduced the testimony of forensic serologist Ed Taylor, who testified that
none of the biological evidence collected at the scene was ever linked to Hodge. Taylor
testified on cross-examination that he did not have a hair or blood sample from Hodge with
which to make comparisons. The defense also introduced the testimony of fingerprint expert
Sara Skees, who testified that she analyzed twenty-two finger and palm prints lifted from the
crime scene. She testified that multiple prints were linked to the Morrises and that others
were never identified. None of the prints were linked to Hodge or his co-defendants. The
defense also introduced the video deposition of Tammy Gentry, who testified that while she
and Bartley were housed in the same prison facility, Bartley told her that Bartley killed the
Morrises, that Hodge and Epperson were not involved, and that he was making a favorable
plea bargain with the government. The defense also introduced a certified court document
in which the Commonwealth Attorney recommended a favorable probation arrangement for
Bartley on several burglary charges to which Bartley pled guilty. The stated reason for the
recommendation of leniency was that Bartley significantly aided the Commonwealth in the
solution of several crimes and the prosecution of the perpetrators.

The defense attempted unsuccessfully to introduce the testimony of Elizabeth Shaw,
who served as defense counsel at Hodge’s first trial. The trial court disallowed Shaw’s
testimony as double hearsay. Shaw then testified by avowal that Hamilton previously told
her that Bartley had taken credit for both murders in the days immediately following the
crimes. Additionally, the defense was unable to secure the testimony of Darcy O’Brien, an
author who conducted extensive interviews with Hamilton while writing a book about
another murder Hodge had committed. That murder, which occurred during the same crime
spree as the Morris murders, was tried in separate proceedings and was not known to the jury
until the penalty stage. At the penalty stage, the defense was unable to secure the testimony
of Ann-Marie Charvat, a mitigation expert who prepared the penalty portion of the defense’s
case and who was unable to attend the trial because of a high-risk pregnancy. The defense
nonetheless presented thirteen witnesses in mitigation, including several of Hodge’s
No. 06-6027 Hodge v. Haeberlin Page 5

immediate family members, his eighth grade teacher, and a judge who had dealt with
complaints of sexual abuse at a juvenile institution where Hodge had been held as a teenager.

The jury ultimately convicted Hodge of first degree robbery, first degree burglary,
and two counts of murder. The jury sentenced him to terms of imprisonment for the robbery
and burglary offenses and to death for each count of murder. The Supreme Court of
Kentucky affirmed Hodge’s conviction and sentence on direct review. Hodge v. Kentucky,
17 S.W.3d 824 (Ky. 2000) [hereinafter Hodge I]. The United States Supreme Court denied
certiorari. Hodge v. Kentucky, 531 U.S. 1018 (2003). Hodge pursued state collateral review
under Kentucky Rule of Criminal Procedure 11.42. The state supreme court ultimately
affirmed the denial of relief. Hodge v. Kentucky, 116 S.W.3d 463 (Ky. 2003), overruled by
Leonard v. Kentucky, 279 S.W.3d 151, 159 (Ky. 2009) [hereinafter Hodge II]. Hodge again
sought and was denied certiorari in the United States Supreme Court. Hodge v. Kentucky,
541 U.S. 911 (2004). Hodge then sought habeas relief in federal district court, asserting
thirty-eight claims of error. The district court denied relief, but certified Hodge’s claims of
ineffective assistance of counsel for appeal. This court did not certify any additional issues.

Shortly before the oral argument in this case, Hodge filed a motion informing this
court that he had recently learned the results of a DNA test conducted on a hair taken from
Mrs. Morris’s nightgown. According to the motion, Hodge’s counsel recently contacted Ed
Taylor, who is now retired from the state police crime lab. After speaking with Taylor and
following up with the state crime lab, counsel learned that in 1998, several years after
Hodge’s conviction, the state collected blood samples from Hodge and his co-defendants as
part of Epperson’s prosecution. The results of the DNA test showed that the hair did not
come from Hodge or either of his co-defendants. In conjunction with Epperson’s state
collateral attack on his sentence, the state court has ordered testing of other biological
material found at the crime scene. Hodge recently obtained an order from the Laurel Circuit
Court that allows Hodge’s attorneys to get access to the forthcoming results. Hodge seeks
to have his case stayed and held in abeyance, either in this court or in the district court,
pending the outcome of the DNA testing and any state action taken in response to the results.
No. 06-6027 Hodge v. Haeberlin Page 6

II. Motion to Stay and Hold in Abeyance

Hodge’s motion to stay the proceedings and hold them in abeyance is denied.
Several factors counsel against delaying resolution of this petition. First, we note that no
DNA or biological evidence was used against Hodge at trial, nor can the tests now being
conducted exonerate him. This is not a situation where, for instance, the prosecution
established some weak genetic link, such as a blood-type match, which Hodge now seeks to
disturb with more accurate testing. To the contrary, the jury knew that no DNA evidence
linked Hodge to the scene. Further, the results of the new DNA testing cannot exclude
Hodge from the crime scene. The items that will be tested are not the sort that must
necessarily come from the perpetrator of the crime. The material to be tested here includes
several hairs, items used to bind the victims, and blood swabs taken from one of the victim’s
hands. In a rape case where seminal fluid submitted for analysis must necessarily have come
from the attacker, tests would be exonerating if they found no genetic match between the
evidence and a sample from the accused. Here, however, the most the court could ascertain
by waiting for the tests is that Hodge and his co-defendants were not the source of several
hairs that did not necessarily come from the attackers and that Hodge and his co-defendants
did not leave any biological residue on the items used to bind the Morrises (which is to be
expected if the attackers wore gloves). The state-court order which gives Hodge access to
the forthcoming test results also denied Hodge’s motion to compare the results to the DNA
of alternate suspects. The tests therefore cannot put Hodge in a fundamentally different
situation than he was in at trial, when no DNA evidence linked him to the scene.

Second, the evidence underlying this motion has been available to Hodge for a
number of years. Hodge was on notice that DNA tests were being conducted when state
officials collected a blood sample from him in 1998. Moreover, the order requiring DNA
testing is of record in Epperson’s case. Hodge, who has been represented by counsel at
every stage of direct and collateral review, should have been able to keep abreast of events
occurring in his co-defendant’s case. Federal law generally limits action taken based on
newly discovered evidence to situations where the evidence could not have been discovered
sooner through due diligence. See United States v. Seago, 930 F.2d 482, 488 (6th Cir. 1991)
(requirements for new trial); 28 U.S.C. § 2244(a)(2)(B)(i) (requirements for second or
successive habeas petition).
No. 06-6027 Hodge v. Haeberlin Page 7

Finally, the inability of DNA testing to exonerate Hodge and the fact that this
evidence could have been discovered previously make it unlikely that the outcome of the
tests will lead to any further state-court action for which this court should wait. Although
a state court’s decision to order further testing of evidence might appear to imply that the test
results would give rise to additional state-court action, that is not necessarily the case here.
The state court that issued the order allowing Hodge access to the forthcoming results stated
explicitly that, because the testing had already been ordered in Epperson’s case, the court
declined to make any of the findings normally required to authorize DNA testing under
Kentucky Revised Statute § 422.285. The court stated that for “a number of procedural and
substantive reasons,” including the fact that Hodge and Epperson were not convicted of
identical crimes, “the reasoning applied . . . to Epperson may not also be applicable to
Hodge, and as such this Court does not necessarily agree that in this case the petitioner has
met his burden under KRS 422.285 for the authorization of DNA testing.” However, given
that the tests would be conducted regardless, the court decided to give Hodge’s counsel the
same access granted to Epperson’s counsel.

The fact that Hodge has been allowed to piggyback on the testing ordered in
Epperson’s case does not necessarily mean that Hodge will be able to put the test results to
the same use as Epperson will, because Hodge has already exhausted his state collateral
remedies. Kentucky strictly limits collateral remedies, allowing petitioners each to submit
a single petition under Kentucky Rule of Criminal Procedure 11.42, which “shall state all
grounds for holding the sentence invalid of which the movant has knowledge.” The rule
goes on to specify that “[f]inal disposition of the motion shall conclude all issues that could
reasonably have been presented in the same proceeding.” Ky. RCr 11.42(3); see also Crick
v. Commonwealth, 550 S.W.2d 534, 535 (Ky. 1977) (“This court has held upon numerous
occasions that issues which could have been presented in an initial [Criminal Rule 11.42]
motion to vacate cannot be raised by subsequent motions.”). Once the single Rule 11.42
motion is exhausted, criminal defendants may still use Kentucky Rule of Civil Procedure
60.02 to raise issues that could not have been raised on direct review or through a Rule 11.42
motion. Baze v. Kentucky, 276 S.W.3d 761, 765 (Ky. 2008). But these petitions may only
be brought to alert the court to errors in the judgment that “were not known or could not
have been known by the party through the exercise of due diligence,” and the mechanism
No. 06-6027 Hodge v. Haeberlin Page 8

is not to be used “as another vehicle to revisit issues that should have been included or could
have been included in prior requests.” Id. at 766 (citations omited). While Epperson, in
whose case the DNA tests were originally ordered, still has state remedies under Criminal
Rule 11.42, that avenue is closed to Hodge.

The U.S. Supreme Court noted in Rhines v. Weber, 544 U.S. 269 (2005), that
AEDPA’s one-year statute of limitation for filing habeas petitions has dual purposes to
promote finality and to encourage exhaustion of state remedies, which purposes would be
undermined by the too frequent granting of motions to stay federal proceedings and hold
them in abeyance while petitioners return to state court. Id. at 276-77. Federal courts should
therefore use their power to stay cases and hold them in abeyance only in limited
circumstances where the petitioner has shown good cause for his failure to exhaust state
remedies. Id. at 277. Given the inability of the evidence in question to exonerate, the fact
that the evidence could have been discovered sooner through due diligence, and the fact that
the results are unlikely to lead to further state-court proceedings, we deny the motion to stay
these proceedings and to hold them in abeyance or to remand to the district court for the
same purpose.

III. Habeas Corpus Claims

None of Hodge’s claims of ineffective assistance of counsel entitle him to relief.

A. Right to Testify

Hodge’s ineffective assistance of counsel claim regarding his right to testify fails
both because it is procedurally defaulted and because it lacks merit. The Kentucky Supreme
Court rejected this claim on the adequate and independent state ground that Hodge failed to
comply with Kentucky’s requirements for collateral review. Hodge’s state collateral petition
included a claim that trial counsel performed ineffectively by preventing Hodge from
testifying despite Hodge’s stated desire to do so. Hodge contended that, had he been allowed
to testify, he would have fought harder for his life than his trial counsel fought. The
Supreme Court of Kentucky held that Hodge failed to satisfy the specificity requirement of
Criminal Rule 11.42(2), because he did not say to what facts he would have testified that
were not already before the jury or how those facts would have influenced the jury’s
No. 06-6027 Hodge v. Haeberlin Page 9

decision. Hodge II, 116 S.W.3d at 470. The court also noted that the record contained no
evidence to support Hodge’s claim that trial counsel interfered with his right to testify and
that unsupported, conclusory allegations could not justify an evidentiary hearing under
Criminal Rule 11.42. Id. at 468.

Failure to comply with a well-established and generally enforced state rule
constitutes procedural default and is an adequate and independent state ground for denying
relief. Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir. 2006). Criminal Rule 11.42(2)
requires that a movant for collateral review “shall state specifically the grounds on which the
sentence is being challenged and the facts on which the movant relies in support of such
grounds” and further that “[f]ailure to comply with this section shall warrant a summary
dismissal of the motion.” (Emphasis supplied.) We have previously held, albeit in
unpublished opinions, that Criminal Rule 11.42 is a regularly followed procedural rule that
constitutes an adequate and independent ground for denying a claim. E.g. Hardin v.
Chandler, 36 F. App’x 769, 771 (6th Cir. 2002). Therefore, Kentucky’s determination that
Hodge failed to properly plead his claim precludes review by this court absent a showing of
cause for the default and resulting prejudice to the petitioner. See Biros v. Bagley, 422 F.3d
379, 387 (6th Cir. 2005).

Hodge does not show cause and prejudice for his default. Hodge contends that his
verified Rule 11.42 motion stating that he wanted to testify supplied the necessary basis for
an evidentiary hearing, which hearing presumably would have established the facts necessary
to support his claim. This argument is without merit. A defendant is presumed to have
waived his right to testify unless the record contains evidence indicating otherwise. United
States v. Webber, 208 F.3d 545, 551 (6th Cir. 2000). A contrary rule would require courts
to hold an evidentiary hearing any time a defendant who did not testify at trial filed an after-
the-fact statement saying that he wanted to testify but was prevented from doing so.
Therefore the state court’s refusal to hold an evidentiary hearing cannot supply cause for
Hodge’s failure to plead this claim properly. Hodge also does not demonstrate prejudice,
because he does not show how his testimony would have altered the outcome of his case.

The outcome of our review would be the same in the absence of procedural default
because Hodge fails to demonstrate either deficient performance by his attorney or resulting
No. 06-6027 Hodge v. Haeberlin Page 10

prejudice to Hodge’s defense. This is true whether we apply AEDPA deference or review
de novo. Hodge does not point to anything in the record to support his claim that he wanted
to testify or that trial counsel prevented him from doing so. The first prong of Strickland
requires Hodge to show that “counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland,
466 U.S. at 687. Rather than demonstrating that his trial counsel made serious errors,
Hodge fails to show that counsel did anything improper respecting Hodge’s right to testify.
This court entertains a strong presumption that trial counsel adhered to the requirements of
professional conduct and left the final decision about whether to testify with the client.
Webber, 208 F.3d at 551 To overcome this presumption, Hodge would need to present
record evidence that he somehow alerted the trial court to his desire to testify. Id. Hodge’s
present allegations that he wanted to testify and was prevented from doing so do not suffice
to overcome the presumption that he assented to the tactical decision that he not testify.

Although the right to testify is a fundamental right subject only to knowing and
intelligent waiver, “waiver of certain fundamental rights can be presumed from a defendant’s
conduct alone, absent circumstances giving rise to a contrary inference.” United State v.
Stover, 474 F.3d 904, 908 (6th Cir. 2007). Notably, Hodge has not stated that he was
unaware of his right to testify or that he was somehow prevented from seeking the court’s
assistance in overcoming counsel’s allegedly unilateral decision. We have previously stated
that, “[a]lthough the ultimate decision whether to testify rests with the defendant, when a
tactical decision is made not to have the defendant testify, the defendant’s assent is
presumed.” Webber, 208 F.3d at 551. Indeed, “[b]arring any statements or actions from the
defendant indicating disagreement with counsel or the desire to testify, the trial court is
neither required to sua sponte address a silent defendant and inquire whether the defendant
knowingly and intentionally waived the right to testify, nor ensure that the defendant has
waived the right on the record.” Id. To the contrary:

A defendant who wants to testify can reject defense counsel’s advice to the
contrary by insisting on testifying, communicating with the trial court, or
discharging counsel. At base, a defendant must alert the trial court that he
desires to testify or that there is a disagreement with defense counsel
regarding whether he should take the stand. When a defendant does not alert
the trial court of a disagreement, waiver of the right to testify may be
No. 06-6027 Hodge v. Haeberlin Page 11

inferred from the defendant’s conduct. Waiver is presumed from the
defendant’s failure to testify or notify the trial court of the desire to do so.
Id. (internal citations and quotation marks omitted). As Hodge does not show that his right
to testify was impaired, he cannot show deficient performance by counsel.

Hodge also fails to demonstrate prejudice. In his state-court post-conviction petition
and in his brief to this court, Hodge gives no details about the substance of his testimony but
speculates that it would have had an impact on the jury’s view of Bartley’s and Hamilton’s
credibility and of Hodge’s involvement with the Morris murders. The second prong of
Strickland requires Hodge to establish that “counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. The
defendant must “affirmatively prove prejudice.” Id. at 693. Hodge’s speculation that his
testimony would have left a favorable impression with the jury does not demonstrate the
required prejudice under Strickland. See Clark v. Waller, 490 F.3d 551, 558 (6th Cir. 2007)
(holding that a petitioner failed to demonstrate prejudice by asserting that an uncalled
witness would have aided his defense).

B. Cross-Examination of Sherry Hamilton

Applying a modified level of deference to the state-court decision, we deny relief on
Hodge’s claim that his attorney rendered ineffective assistance in his cross-examination of
Sherry Hamilton. Hodge claims that his attorney’s cross-examination of Hamilton, who is
Hodge’s ex-wife, led to several damning statements that the prosecutor used against Hodge
in closing argument. The state court addressed this argument as follows:

Hodge contends that defense counsel was deficient in the investigation and
cross-examination of his former wife. The issue on direct appeal was the
admission of KRE 404(b) evidence. We held that counsel’s continued
cross-examination of an obviously hostile witness was a tactical decision.
Trial strategy will not be second guessed in [a Criminal Rule] 11.42
proceeding.
Hodge II, 116 S.W.3d at 473 (citations omitted).

When reviewing a habeas petition from a state prisoner, federal courts give
substantial deference to the legal determinations of the state court. Where the state court
addressed the petitioner’s federal claims on the merits, this court will only grant relief if the
No. 06-6027 Hodge v. Haeberlin Page 12

state-court decision 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). The state court did not apply a procedural bar here, as it did to
Hodge’s right-to-testify claim; but neither did the court conduct a full Strickland analysis.
Because the state court did not articulate reasons for its decision, we conduct an independent
review of Hodge’s claim; but we give deference to the state court’s final outcome unless our
independent analysis shows that the state decision was contrary to, or an unreasonable
application of, clearly established Supreme Court precedent. See Williams v. Anderson, 460
F.3d 789, 796 (6th Cir. 2006).

Although the cross-examination of Hamilton revealed several pieces of evidence that
the prosecution later used against Hodge, Hodge does not show that his counsel’s trial
strategy was so deficient that the Kentucky court violated Strickland when it declined to
grant relief. Hodge’s claim about his counsel’s conduct of the cross-examination resolves
into two sub-claims: first, that counsel elicited damaging, inadmissible evidence and, second,
that counsel failed to move contemporaneously to strike the evidence. Hamilton referred to
Hodge’s previous trial, expressed her belief that he would kill again, described Hodge as
being “on the run” from police, and noted Hodge’s use of cocaine and marijuana. Counsel
did not object to any of these references, but moved for a mistrial at the end of the testimony.
In response to the judge’s denial, counsel explained that he did not request admonishments
during the testimony for fear of drawing the jury’s attention to the damaging evidence. This
court previously found a similar explanation to be reasonable. See Cobb v. Perini, 832 F.2d
342, 347-48 (6th Cir. 1987). In Cobb, we held that an attorney’s failure to object to
testimony about a defendant’s confrontation with a police officer during a court recess did
not constitute ineffective assistance of counsel because the decision not to object was
strategic and it was not at all clear that an objection would have been effective. Id. The
attorney in that case decided not to object because “once the question was out, [he] decided
it would do more harm to object than to trivialize it.” Id. at 348 (alteration in original).

With regard to counsel’s drawing out the damaging information in the first place, the
record indicates that many of Hamilton’s damaging statements were nonresponsive answers
to legitimate questions. For instance, Hamilton’s assertion that Hodge would kill again came
after counsel asked whether she remembered telling various newspapers that Hodge was not
No. 06-6027 Hodge v. Haeberlin Page 13

involved in the Morris murders. Hamilton referred to the previous trial in her answers to a
line of questions in which counsel tried to establish that Hamilton changed her story—which
had originally been that Hodge was not involved in the murders—as a result of romantic
jealousy stemming from Hodge’s remarriage. During this line of questioning, Hamilton
testified that she had learned prior to testifying that Hodge had become engaged and later
remarried, that she suffered “extreme” jealousy regarding Hodge with other women, and that
she had once pointed a gun at Hodge and another woman and threatened to shoot them.
Regardless of whether this testimony damaged or helped Hodge’s case in the eyes of the
jury, counsel’s questions were objectively reasonable.

Counsel’s questions regarding Hamilton’s immigration scam marriage to Mr. Wong
were also objectively reasonable. Although Hamilton implicated Hodge by stating that she
lived with Hodge during her marriage to Mr. Wong and that Mr. Wong paid Hodge and
Hamilton’s utilities, rent, cable, car insurance and phone bill in addition to buying Hodge
and Hamilton a car and paying them $10,000, questions about the marriage were part of a
broader line of questioning attempting to portray Hamilton as a life-long scam artist with
little integrity. Just prior to Hamilton’s testimony about her marriage to Mr. Wong, counsel
asked Hamilton about various crimes and frauds she had committed prior to her relationship
with Hodge. Immediately following Hamilton’s testimony about her marriage to Mr. Wong,
Hamilton testified that she lived a life of crime, considered herself a good liar, and stated
that when she “could outsmart a police officer, it was a thrill.” Although questions about
incidents that occurred during Hamilton’s relationship with Hodge were likely to implicate
past crimes committed by Hodge, given the importance of Hamilton’s credibility as a witness
for the prosecution it was objectively reasonable to pursue this line of questioning.

The wisdom of counsel’s strategy must be judged based on the circumstances as a
whole as they stood at the time counsel made his decisions. Strickland instructs that “[a] fair
assessment of attorney 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.” Strickland,
466 U.S. at 689. Given Hamilton’s extremely damaging testimony on direct examination,
counsel was faced with the need to discredit her through impeachment, despite the fact that
doing so would give her the opportunity to make additional damaging statements in the
No. 06-6027 Hodge v. Haeberlin Page 14

presence of the jury. Once the damaging statements had been made, counsel had to decide
quickly whether seeking judicial intervention would aid or harm his client’s cause. As
Strickland states, “[b]ecause of the difficulties inherent in making the evaluation, a court
must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. Where the defendant fails to overcome the
presumption that the challenged action “might be considered sound trial strategy,” we will
not find ineffective assistance. Id. (quoting Michel v. Louisiana, 350 U.S. 91,101 (1955)).

Hodge also contends that his attorney did not adequately investigate Hamilton in
preparation for the examination. While it is clear from the record that the attorney who
cross-examined Hamilton had not spoken to her previously, it is also clear from the questions
asked of Hamilton and from other motions presented to the trial court that Hodge’s counsel
investigated Hamilton’s personal, medical, and criminal histories extensively in preparation
for trial.

The question before us is not whether counsel’s performance fell short under
Strickland, but rather whether Kentucky’s determination that counsel’s actions did not
constitute ineffective assistance is contrary to, or an unreasonable application of, clearly
established Supreme Court precedent. The record does not support such a conclusion.

C. Other Issues

Hodge raises a number of other claims that the state court has not directly addressed.
Hodge raised these claims on state post-conviction review, but the Supreme Court of
Kentucky relied upon its previous resolution of the same or related claims on direct review.
Generally a procedural bar, if an adequate and independent state ground, precludes federal
review of the petitioner’s claim. See Biros, 422 F.3d at 386-87. However, in determining
whether to give preclusive effect to a procedural default, this court must consider whether
the petitioner actually failed to comply with a state procedural rule. Simpson v. Jones, 238
F.3d 399, 406 (6th Cir. 2000). For these claims, we cannot identify a state procedural rule
that Hodge failed to follow that would preclude review in this court.

Until recently, Kentucky followed a practice with regard to ineffective assistance of
counsel claims that did not constitute either treatment of the claims on the merits or a
No. 06-6027 Hodge v. Haeberlin Page 15

procedural bar necessarily entitled to federal deference. According to Kentucky precedent
as it stood when Hodge’s case was on state collateral review, “[a]n issue raised and rejected
on direct appeal may not be relitigated in [collateral] proceedings by claiming that it amounts
to ineffective assistance of counsel.” Sanborn v. Commonwealth, 975 S.W.2d 905, 909 (Ky.
1998), overruled by Leonard v. Kentucky, 279 S.W.3d 151, 159 (Ky. 2009). The Kentucky
Supreme Court used this principle to reject a number of the ineffective assistance of counsel
claims raised in Hodge’s Criminal Rule 11.42 motion. See Hodge II, 116 S.W.3d at 473.
Ineffective assistance of counsel claims in Kentucky are appropriately raised for the first
time on collateral review, rather than on direct review. See Humphrey v. Kentucky, 962
S.W.2d 870, 872 (Ky. 1998). The result of Kentucky’s practice is that several ineffective
assistance claims that Hodge preserved by properly raising them on collateral review appear
never to have been treated on the merits. See Leonard, 279 S.W.3d at 157-59 (appearing to
read Hodge II as failing to consider ineffective assistance of counsel claims appropriately
raised for the first time on collateral review). Where a state bars collateral review of a claim
actually preserved by the petitioner, such bar will not constitute procedural default on federal
review.

However, not every ineffective assistance of counsel claim that the Kentucky
Supreme Court declined to address on the merits in this case warrants de novo review. In
some instances, the ineffective assistance of counsel claim relies on proof of an element
already resolved on direct review. In such instances, the Kentucky Supreme Court’s refusal
to hear the ineffective assistance claim was a straightforward application of collateral
estoppel. Where the Supreme Court of Kentucky declined to consider an ineffective
assistance claim because it had already resolved on direct review an issue necessary to the
claim, we defer to the state court’s earlier resolution of the underlying issue unless the
ultimate result is contrary to, or an unreasonable application of, clearly established federal
law. Out of an abundance of caution, however, we alternatively apply de novo review as
well with respect to these instances. The Supreme Court in Knowles v. Mirzayance, 129
S.Ct. 1411 (2009), a recent habeas claim involving alleged ineffective assistance of counsel,
similarly applied a de novo scope of review as an alternative basis for its ruling that habeas
was not warranted. See id. at 1420-22. In other instances, because the ineffective assistance
claim appears distinct from the claim addressed on direct review, the Kentucky Supreme
No. 06-6027 Hodge v. Haeberlin Page 16

Court appears never to have addressed properly preserved ineffective assistance of counsel
1
claims on the merits; we review those claims de novo.

1. Failure to obtain admission of evidence

Hodge faults his attorney for failing to obtain admission of several pieces of
testimony or evidence, but none of these alleged failures constitutes ineffective
assistance of counsel.

Counsel’s failure to convince the trial court to overrule the prosecution’s
objection to Elizabeth Shaw’s testimony does not constitute ineffective assistance. In
an effort to impeach Sherry Hamilton, defense counsel at Hodge’s second trial sought
to introduce the testimony of Shaw, who was Hodge’s original trial counsel. Shaw had
conducted interviews with Hamilton in preparation for the first trial. Shaw’s testimony
would have been that Hamilton’s account to Shaw of what Bartley said about the crime
differed from Hamilton’s present account to the jury. On the prosecution’s objection,
the trial court labeled Shaw’s testimony as double hearsay. The Supreme Court of
Kentucky held on direct review that Shaw’s testimony was not admissible. Hodge I, 17
S.W.3d at 849.

Hodge cannot establish that his counsel was ineffective for failing to gain
admission of Shaw’s testimony without first establishing that Shaw’s testimony was
admissible. The Supreme Court of Kentucky declined to consider Hodge’s ineffective
assistance of counsel claim on collateral review because the underlying issue of the
evidence’s admissibility had already been resolved against Hodge on direct review.
Hodge II, 116 S.W.3d at 473. The state court’s holding on direct review necessarily
precluded Hodge from succeeding on his ineffective assistance claim on collateral

1
Kentucky has since modified the way that it applies a procedural bar to ineffective assistance
of counsel claims that are based on claims of error denied on direct appeal. See Leonard, 279 S.W.3d at
157-59. The Leonard court held, “While such an ineffective-assistance claim is certainly related to the
direct error, it simply is not the same claim. And because it is not the same claim, the appellate resolution
of an alleged direct error cannot serve as a procedural bar to a related claim of ineffective assistance of
counsel.” Id. at 158. Leonard appears to overrule Hodge II to the extent that Hodge II applied the
previous procedural bar requirements. Id. at 159. However, the holding of Leonard in this regard does
not apply retroactively, and it therefore appears that Hodge’s conviction cannot now be challenged in state
court on the basis of Leonard. Id. at 162.
No. 06-6027 Hodge v. Haeberlin Page 17

review. The ultimate outcome of the state-court process—which was a determination
that Shaw’s testimony was inadmissible and that Hodge’s counsel was therefore not
ineffective for failing to gain its admission—is not contrary to, or an unreasonable
application of, clearly established federal law. Hodge is therefore not entitled to relief.

This claim also fails on de novo review. After the trial court sustained the
prosecution’s objection to Shaw’s testimony, Hodge’s counsel requested a bench
conference and argued multiple hearsay exceptions in an effort to persuade the court to
admit the testimony. When the court rejected these attempts, counsel sought to pursue
the testimony by avowal, which had the effect of preserving a record of what the
testimony would have been on the chance that a later court would reverse the ruling.
The standard set forward in Strickland is one of “reasonably effective assistance.” 466
U.S. at 687. Counsel does not fall below this standard by failing to prevail when arguing
a debatable point to the court. In response to the court’s unfavorable ruling, counsel
approached the bench and made arguments. When those arguments proved
unsuccessful, counsel acted not only to preserve the error for later review but also to
make a record of the testimony in the event that review yielded a favorable ruling.
Hodge’s counsel did not cease to function as the “counsel” guaranteed by the Sixth
Amendment by failing to obtain admission of Shaw’s testimony. See id.

Hodge’s contention that his counsel performed ineffectively by failing to obtain
admission of Hamilton’s psychiatric records suffers from the same flaw. The Supreme
Court of Kentucky held on direct review that Hamilton’s psychiatric records were
irrelevant and inadmissible under the state’s psychotherapist-patient privilege. Hodge
I, 17 S.W.3d at 843-44. Hodge could not establish his ineffective assistance claim
without proving an issue the state had already resolved against him. The state-court
determination that Hodge did not suffer ineffective assistance of counsel is entitled to
deference.

This claim also fails on de novo review. Counsel is not ineffective merely for
failing to obtain a desired ruling from the court. Hodge argues that Hamilton’s
psychiatric records revealed her true reasons for testifying against him. The trial judge
No. 06-6027 Hodge v. Haeberlin Page 18

reviewed Hamilton’s records in camera and determined that they contained nothing
sufficiently relevant to justify breaching the state’s psychotherapist-patient privilege, a
holding which the Kentucky Supreme Court affirmed. See Hodge I, 17 S.W.3d at 844.
Hodge’s counsel was not ineffective for failing to persuade the trial court to admit
evidence that was privileged and not sufficiently relevant.

Hodge also does not qualify for relief on the claim stemming from his attorney’s
failure to get a document admitted that would have been used to impeach Bartley.
Shortly before Hodge’s retrial in the Morris murders, Bartley filed a motion for state
collateral review in a case stemming from the murder of Tammy Acker and the
attempted murder of Dr. Roscoe Acker. Hodge, Epperson, and Bartley committed these
crimes shortly after the Morris murders. In that Criminal Rule 11.42 motion, which was
filed in the Acker murder case and which referred only to the charges in that case,
Bartley argued that the Commonwealth had reneged on a deal it made with him to secure
his testimony against Hodge and Epperson. Hodge’s counsel argued strenuously and
competently for the document’s admission at Hodge’s trial. The court nonetheless
issued an unfavorable ruling, finding the document both irrelevant and unreliable.

In this instance, we do not defer to the outcome of the state-court process. On
direct review, the Supreme Court of Kentucky held that the trial court did not abuse its
discretion by overruling the motion to introduce the contested document. Hodge I, 17
S.W.3d at 843. Because the state court held only that the trial court did not abuse its
discretion in keeping the document out, Hodge was not collaterally estopped from
demonstrating that the document was admissible—and then from arguing that his
attorney was ineffective for failing to gain its admission. In this instance, the underlying
issue resolved on direct review is distinct from the ineffective assistance claim properly
raised for the first time on collateral review. Yet the Kentucky Supreme Court declined
on collateral review to consider the merits of Hodge’s ineffective assistance of counsel
claim, saying that it had already resolved the issue on direct review. Hodge II, 116
S.W.3d at 473.
No. 06-6027 Hodge v. Haeberlin Page 19

Applying de novo review, we do not find that counsel’s performance fell below
the standard set forward in Strickland merely because counsel was unable to persuade
the trial court to rule in Hodge’s favor. In any event Hodge was not prejudiced.
Hodge’s counsel successfully moved the trial court to admit the Commonwealth’s joint
motion with Bartley for a favorable probation arrangement in the Morris murder case.
Hodge’s counsel also presented the testimony of Tammy Gentry, who testified that
Bartley told her he had committed the murders but was going to get a plea bargain that
would result in early parole. If Hodge was prejudiced at all by the absence of Bartley’s
Rule 11.42 motion, it was not the level of prejudice necessary to qualify for relief under
Strickland, which requires the defendant to establish “a reasonable probability that, but
for counsel’s [allegedly] unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694.

2. Failure to secure testimony

Hodge faults his attorney for failing to secure the testimony of two
witnesses—one whose testimony would have been offered to impeach Hamilton at the
guilt phase and one whose testimony would have been offered in mitigation at the
penalty phase—but the record does not show that counsel’s efforts to secure these
witnesses fell below the constitutional requirement. And in any event Hodge was not
prejudiced by the witnesses’ absence.

Trial counsel was not able to secure the testimony of Darcy O’Brien, the author
of A Dark and Bloody Ground. O’Brien’s book chronicled the robbery and murder of
Tammy Acker and attempted murder of Acker’s father, crimes for which Hodge had
been tried, convicted, and sentenced to death. O’Brien had interviewed Hamilton about
the Acker murder, and Hodge now argues that O’Brien could have provided information
to impeach Hamilton’s testimony. The record suggests that trial counsel knew of
O’Brien’s potential importance and endeavored to secure his testimony for Hodge’s trial.
Indeed, Hodge’s counsel secured permission to take O’Brien’s deposition and funds to
pay for his travel. When O’Brien indicated that he would be out of the country during
No. 06-6027 Hodge v. Haeberlin Page 20

the date scheduled for the deposition, trial counsel moved for a continuance. The trial
court rejected the motion.

On direct review, the Supreme Court of Kentucky determined that Hodge
suffered no prejudice from O’Brien’s absence. Hodge I, 17 S.W.3d at 850–51. Hodge
could not make out a claim for ineffective assistance without establishing prejudice, and
the state court’s finding on direct review precluded him from making that showing. The
state-court determination—that Hodge suffered no prejudice and therefore could not
establish ineffective assistance of counsel—is not contrary to, or an unreasonable
application of, clearly established federal law.

Hodge’s claim also fails de novo review. Hodge does not establish that counsel’s
performance fell below the standard of reasonableness or that Hodge suffered prejudice.
This case differs significantly from those which Hodge cites, because trial counsel in this
case undertook an investigation of the witness and sought to secure his testimony. In
Towns v. Smith, 395 F.3d 251 (6th Cir. 2005), by contrast, trial counsel did not even
contact an important witness who was willing to testify that the defendant did not
participate in the crime. Id. at 259-60. In Clinkscale v. Carter, 375 F.3d 430 (6th Cir.
2004), trial counsel’s failure to file a timely alibi notice precluded the testimony of
multiple alibi witnesses who would otherwise have been available to testify on the
defendant’s behalf. Id. at 443. Unlike the attorney actions in Smith and Clinkscale, the
efforts of Hodge’s counsel, although unsuccessful, were not professionally unreasonable.

Hodge also does not establish prejudice similar to that which occurred in the
cases he cites. In Smith, trial counsel’s actions caused the absence of a witness who
would have testified that the defendant was not involved in the crimes charged. 395 F.3d
at 260. In Clinkscale, counsel’s failure caused the absence of alibi witnesses. 375 F.3d
at 443. O’Brien’s testimony was sought in Hodge’s case for the purposes of
impeachment, and the record shows that Hodge’s counsel used other means to impeach
Hamilton in the absence of O’Brien’s testimony. In response to cross-examination,
Hamilton admitted to the impeaching facts—regarding her previous contradictory
No. 06-6027 Hodge v. Haeberlin Page 21

statements about Hodge’s guilt and her general penchant for deceit—which the defense
would have otherwise sought to prove through O’Brien’s testimony.

Similarly, Hodge is not entitled to relief on his claim that trial counsel was
unable to secure the testimony of mitigation expert Ann-Marie Charvat. Hodge’s
counsel hired Charvat to coordinate the mitigation phase of a trial originally scheduled
for March 18, 1996. The trial was postponed on two occasions and was finally
scheduled to begin on October 21, the very day on which Charvat expected to give birth.
When counsel learned that Charvat’s pregnancy was high-risk and that she would likely
be unable to travel in the weeks immediately preceding and following childbirth, they
made various unsuccessful attempts to postpone the trial.

The Kentucky Supreme Court held on direct review that the trial court did not
abuse its discretion by declining to continue the trial. Hodge I, 17 S.W.3d at 851. This
finding did not preclude Hodge from arguing on collateral review that his counsel could
have taken other steps to secure Charvat’s testimony. Indeed, the Kentucky Supreme
Court mentioned as part of its holding on direct review that Hodge (presumably through
counsel) did not offer to read Charvat’s affidavit in lieu of her live testimony. Id.

Nonetheless, Hodge’s claim fails de novo review. We cannot say that counsel’s
efforts in this area fell below the requirements set forth in cases dealing with ineffective
assistance of counsel at the penalty phase or that Hodge was prejudiced. The record
indicates that, in addition to extending considerable efforts to secure Charvat’s
participation, counsel presented substantial other evidence in mitigation. Although
counsel who fails to prepare and present mitigating evidence may be found ineffective,
no such failure occurred here. Despite the fact that Charvat was not present at trial, she
conducted substantial investigation and strategic preparation for the mitigation phase
beforehand. Hodge’s counsel presented thirteen mitigation witnesses who testified about
Hodge’s troubled past, including the way family members and the penal system unjustly
harmed him.

Hodge’s situation is very different from those in which courts have previously
found ineffective assistance of counsel at sentencing. We have recognized that
No. 06-6027 Hodge v. Haeberlin Page 22

“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.” Clark v. Mitchell, 425 F.3d 270, 284 (6th Cir. 2005)
(citing Wiggins v. Smith, 539 U.S. 510, 522-23 (2003)). In Wiggins, the Supreme Court
relied on counsel’s failure to uncover and present voluminous mitigating evidence, such
as evidence that during childhood the defendant suffered severe privation, physical
torment, and repeated sexual molestation. 539 U.S. at 535. There is no allegation here
that Hodge’s counsel failed to uncover or present any significant mitigating aspect of
Hodge’s situation or history. In Poindexter v. Mitchell, 454 F.3d 564 (6th Cir. 2006),
counsel did not request medical, educational, or governmental records; did not consult
with a mental health professional despite noticeable signs of defendant’s mental illness;
and did not consult a mitigation specialist who could have reconstructed the defendant’s
social history. Id. at 578-79. Here, by contrast, counsel made investigations with the
help of a mitigation specialist and presented evidence about Hodge’s family background,
educational experience, and history with the correctional system.

Moreover, Hodge does not demonstrate prejudice. The substantial preparations
made and evidence presented by Hodge’s counsel, in addition to showing that counsel
did not perform deficiently, make it unlikely that Hodge suffered prejudice from
Charvat’s absence. Additionally, Hodge’s argument that Charvat could have presented
a fuller, more cohesive account leading to a more favorable outcome basically ignores
the strong aggravating evidence presented against him. The state presented only one
penalty-phase witness, the custodian of Hodge’s criminal records. She presented
evidence of Hodge’s previous criminal convictions, including his conviction and death
sentence for capital murder. The jury found seven aggravating factors, when only one
was necessary to impose the death penalty. Given the substantial evidence already
presented in mitigation and the strength of the aggravating factors, it is unlikely that
more mitigating evidence along the same lines would have caused the jury to strike a
different balance. Prejudice is established in a capital case if there is a reasonable
probability that, but for counsel’s omissions, at least one juror would not have
No. 06-6027 Hodge v. Haeberlin Page 23

recommended the death penalty. See Wiggins, 539 U.S. at 536-37; accord Poindexter,
454 F.3d at 580. There is no such probability here.

3. Failure to object

Hodge raises several claims that his attorney failed to object to harmful evidence
or prosecutorial argument, but none of these claims entitles Hodge to relief. Because the
Kentucky Supreme Court determined on direct review that the evidence and arguments
were not objectionable, we defer to the state-court’s finding that Hodge did not suffer
from ineffective assistance of counsel. Moreover, Hodge does not establish for purposes
of de novo review that these omissions to object constituted unreasonable trial strategy
or that he was prejudiced by counsel’s actions. Because of the “numerous potentially
objectionable events” that occur throughout trial, we have previously noted that “any
single failure to object usually cannot be said to have been error unless the evidence
sought is so prejudicial to a client that failure to object essentially defaults the case to
the state. Otherwise, defense counsel must so consistently fail to use objections, despite
numerous and clear reasons for doing so, that counsel’s failure cannot reasonably have
been said to have been part of a trial strategy or tactical choice.” Lundgren v. Mitchell,
440 F.3d 754, 774 (6th Cir. 2006). None of the omissions claimed by Hodge rises to the
level described in Lundgren, nor do they qualify when considered together as a whole.

Hodge is not entitled to relief based on counsel’s decision not to object to the
emotional testimony of the victims’ son. Bobby Morris testified to a number of relevant
facts that set the scene for his parents’ murders. He testified that although his parents
were not rich, they had accumulated some money and items of value. He also testified
that his father’s practice of keeping large sums of cash in the house was so well-known
in the community that people would stop by to cash checks when the bank was closed.
Morris testified about his father’s close acquaintance with members of the Epperson
family and about having seen Roger Epperson and Hodge together in the weeks leading
up to the murders. Morris’s testimony about the layout of his parents’ home, their living
practices, and items they kept in the house established the context for understanding
what happened on the night of the murders.
No. 06-6027 Hodge v. Haeberlin Page 24

The Kentucky Supreme Court held on direct review that Morris’s testimony did
not constitute impermissible “glorification” of the victims and that, in any case, the
testimony did not prejudice Hodge. Hodge I, 17 S.W.3d at 847. Hodge was therefore
precluded from establishing two of the elements necessary for a successful collateral
attack based on ineffective assistance of counsel. The state-court’s decision not to grant
Hodge relief is entitled to deference, because it is not contrary to, or an unreasonable
application of, clearly established federal law.

Hodge also is not entitled to relief on de novo review, because Hodge’s counsel
did not act unreasonably by not objecting to Morris’s testimony. Although Morris was
visibly upset while on the stand, his testimony was not irrelevant or otherwise
objectionable. Kentucky law provides that even when testimony about the victims strays
beyond information strictly relevant to the crimes at hand, such evidence does not
prejudice the defendant or inflame the jury so long as the victim is not glorified or
enlarged. Bowling v. Commonwealth, 942 S.W.2d 293, 302-03 (Ky. 1997). Morris’s
testimony, although emotional, did not serve to glorify his parents, nor did it stray far
from matters directly relevant to the crimes committed against them. Counsel did not
act unreasonably by not objecting.

Counsel’s decision not to object to prosecutorial arguments about the lack of
forensic evidence also does not entitle Hodge to relief. One of the main defense
strategies in this case was to point out that Hodge had not been linked to the scene by
either fingerprint or DNA evidence. In its cross-examination of the defense’s fingerprint
specialist, the prosecution attempted to establish that crime scenes often produce no
fingerprint evidence linking the perpetrator to the scene. When the prosecutor asked
whether it would be possible for a defendant to obscure his fingerprints by using
sandpaper on his fingers, the witness indicated that temporarily obscuring fingerprints
with sandpaper was a possible but extremely painful and unlikely scenario. Defense
counsel did not object to the question.

Hodge raised this claim on collateral review, but the Supreme Court of Kentucky
did not address it directly. The court merely referred to “numerous alleged separate
No. 06-6027 Hodge v. Haeberlin Page 25

instances of ineffective assistance of counsel” that were not proper subjects of collateral
review because they were, or could have been, raised on direct appeal. Hodge II, 116
S.W.3d at 473. The state court did not make any findings on direct review that would
preclude Hodge from bringing this ineffective assistance of counsel claim on state
collateral review. Because Hodge properly raised the claim on collateral review and the
state court did not make any factual findings or legal conclusions to which we could
defer, we review this claim de novo.

Assuming that the prosecutor’s question was objectionable, any failure on
defense counsel’s part did not lead to the required level of prejudice. Because the
decision whether to object in a particular instance is made in the strategic context of an
entire trial, any single failure to object does not constitute error unless the information
introduced “is so prejudicial to a client that failure to object essentially defaults the case
to the state.” Lundgren, 440 F.3d at 774. The testimony in this case indicated that the
defendants wore gloves while committing the crimes, and failing to object to a single
reference to other, unlikely, means of obscuring fingerprints did not default the case to
the state.

Counsel’s decision not to object to prosecutorial argument about the lack of DNA
evidence also provides no basis for relief. The Kentucky Supreme Court concluded on
direct review that the prosecutor’s closing argument was completely proper. Hodge I,
17 S.W.3d at 854. On collateral review, the Kentucky Supreme Court rejected Hodge’s
ineffective assistance claim because the court had already resolved the underlying issue
against Hodge. Hodge II, 116 S.W.3d at 473. The court’s determination on direct
review that the prosecutor committed no impropriety precluded Hodge from establishing
a necessary element of his ineffective assistance claim. The state court’s determination
that Hodge could not make out a claim of ineffective assistance of counsel was not
contrary to, or an unreasonable application of clearly established federal law. We
therefore defer to the state court’s decision.

In any event, this claim is meritless under de novo review, because Hodge does
not establish the necessary prejudice under Strickland. The prosecution made the point,
No. 06-6027 Hodge v. Haeberlin Page 26

both in its examination of the defense’s DNA expert and in closing argument, that any
lack of a DNA match could be attributed to the fact that the state did not have a blood
or hair sample from Hodge with which to compare the blood and hair found at the scene.
Hodge has not explained how objection by counsel could have mitigated the unfavorable
implications of this undisputed fact. Hodge argues, without citing any evidence, that he
wanted DNA testing at the time of trial and that the prosecution’s argument unfairly
implied the opposite. This after-the-fact assertion by Hodge has no relevance to his
counsel’s actions at the time of trial or to any prejudice Hodge may have experienced
as a result.

Hodge is not entitled to relief based on his claim that counsel failed to object to
a prosecutorial argument at the penalty phase that portrayed the abuse Hodge
experienced growing up as mere discipline that could not excuse later acts of murder.
The Kentucky Supreme Court held on direct review that the prosecutor’s comment was
fair and permissible. Hodge I, 17 S.W.3d at 853. As already discussed, Hodge could
not make out his ineffective assistance of counsel claim on collateral review without first
establishing that the prosecutor’s argument was objectionable, and the state court’s
decision denying relief is entitled to deference.

This claim also fails under de novo review, because Hodge does not show that
counsel acted unreasonably by not objecting to the prosecutor’s statements. Counsel
objected numerous times throughout the prosecution’s argument and was overruled
every time. At one point, the court told counsel to stop objecting. At the end of the
prosecution’s argument, counsel moved for a mistrial both because of various statements
by the prosecutor and because of remarks the court made to defense counsel in response
to objections. The court overruled the motion and reiterated that nothing objectionable
occurred during the argument. “[R]econstruct[ing] the circumstances of counsel’s
challenged conduct,” and “evaluat[ing] the conduct from counsel’s perspective at the
time,” we cannot say that counsel’s decision not to make even more objections than
those he made constituted unreasonable trial strategy. Strickland, 466 U.S. at 689.
No. 06-6027 Hodge v. Haeberlin Page 27

Hodge also claims, citing a particular page in the trial transcript, that the
prosecutor improperly shifted the burden of proof to Hodge during the penalty phase and
that defense counsel failed to object. After a thorough review of the prosecution’s
argument, this court is unable to find any statement resembling the one Hodge recounts,
but instead finds several places where the prosecution discussed the burden of proof
borne by the prosecution.

4. Failure to investigate other individuals

Hodge’s claim that counsel rendered ineffective assistance by failing to make
further investigation of a potential alternative suspect has no basis in the record. Former
Kentucky State Police Detective Ronnie Gay testified at trial that he pursued this lead,
concerning Odie Crow, until it proved to be a dead end. Although the Kentucky
Supreme Court did not directly address this claim, it flatly fails de novo review. Hodge
does not show that trial counsel’s decision not to pursue an independent investigation
of Crow was unreasonable or that not pursuing such an investigation caused Hodge any
prejudice.

5. Failure to preserve record of Brady violations

Finally, Hodge is not entitled to relief based on his claim that trial counsel failed
to preserve and exploit a potential Brady violation. This claim is based on testimony
from Detective Gay that he deleted the names of confidential witnesses who did not
produce any useful information and that he had several casual conversations with co-
defendant Bartley that he did not record. The Supreme Court of Kentucky considered
on direct review whether the prosecution committed a discovery violation with regard
to this information. Although the Kentucky Supreme Court found that the prosecution
had violated the discovery order,2 it upheld the trial court’s decision not to dismiss the
indictment under an abuse-of-discretion standard. Hodge I, 17 S.W.3d at 849-50. This
holding—that the trial court did not abuse its discretion—arguably did not preclude

2
The court noted that while the discovery order in question exceeded the trial court’s authority,
the order was valid and binding on the prosecution until overruled. Hodge I, 17 S.W.3d at 849.
No. 06-6027 Hodge v. Haeberlin Page 28

Hodge’s ineffective assistance of counsel claim on collateral review; however the
Kentucky Supreme Court did not address Hodge’s claim on the merits during collateral
review. Nonetheless, this claim fails under de novo review. The record indicates that
counsel adequately pursued and preserved a record of any alleged violation by Gay.
Prior to trial, defense counsel moved for production of the omitted material and obtained
a ruling that the state should produce the material to the extent possible. Counsel also
questioned Gay at trial about the deleted material and omitted conversations. Hodge’s
vague suggestion that counsel should have further “investigate[d]” and “ensure[d] the
record was complete” does not establish what additional steps counsel should have taken
or how Hodge was prejudiced by counsel’s failure to take them. Mere speculation that
additional investigation would have uncovered wrongfully withheld exculpatory
evidence does not establish either that counsel acted unreasonably or that Hodge was
prejudiced.

Conclusion

For the foregoing reasons, we deny the motion to stay these proceedings and
affirm the judgment of the district court.
No. 06-6027 Hodge v. Haeberlin Page 29

____________________

DISSENT
____________________

BOYCE F. MARTIN, JR., Circuit Judge, dissenting. Benny Lee Hodge was
convicted by a jury in Kentucky state court of first-degree robbery, first-degree burglary,
and two counts of murder, and was sentenced to death. I dissent because I believe that
the state courts unreasonably rejected his ineffective assistance of counsel claim.
Hodge’s counsel’s cross-examination of the state’s key witness, his ex-wife Sherry
Hamilton, was a disaster, and his lawyer also failed to object to any of the
incriminating—and inadmissible—answers that he had elicited from her. Altogether,
Hodge’s counsel’s performance fell below the minimum constitutional standards of
professional competence, Strickland v. Washington, 466 U.S. 668 (1984), and the state
courts’ determination otherwise was unreasonable, 28 U.S.C. § 2254(d)(1); Williams v.
Taylor, 529 U.S. 362, 405 (2000). I respectfully dissent.

I.

Edwin and Bessie Morris, an elderly couple, were murdered in their home in
Jackson County, Kentucky in 1986, during a robbery. The murderers took over $35,000.
Petitioner Benny Lee Hodge and his co-defendants, Donald Bartley and Roger Epperson,
were charged and convicted in separate trials. A jury first found Hodge guilty in 1987,
but the Kentucky Supreme Court vacated that decision because the trial court had not
properly conducted individual voir dire on the issue of pretrial publicity. Hodge was
retried in 1996 in Laurel County, Kentucky, was found guilty on all counts, and was
sentenced to death.

The record is voluminous, but Kentucky and the majority concede that the state
presented no direct physical evidence linking Hodge to the murders. Its case consisted
of the testimony of two witnesses, Bartley, Hodge’s co-defendant, and Sherry Hamilton,
his ex-wife. Bartley did not testify in person at Hodge’s second trial, however, because
he asserted his Fifth Amendment right against self-incrimination. Instead, the jury was
read a redacted transcript of his testimony from Hodge’s 1987 trial, with all references
No. 06-6027 Hodge v. Haeberlin Page 30

to the previous trial omitted. Hamilton was thus the government’s lone primary witness
who testified in person. Hamilton and Bartley both identified Hodge as one of the killers,
though they differed on other details, including who had accompanied Hodge into the
Morrises’ home to kill them (Hamilton said Bartley went in; Bartley said it was
Epperson). Hamilton’s testimony was based on her having allegedly witnessed Hodge’s
and Bartley’s reactions to seeing reports of the murders on television.

During deliberations, several jurors requested to hear certain testimony again;
they reheard portions of the testimony of Bartley and Hamilton, as well as one of
Hodge’s witnesses, Tammy Gentry. At one point, the jury indicated that it was
deadlocked, but later returned a verdict finding Hodge guilty on all counts.

II.

A brief digression before turning to Hodge’s ineffective assistance of counsel
claim. Though I agree with my colleagues’ conclusion that Hodge’s right to testify claim
was procedurally defaulted and, alternatively, fails on the merits, I must point out a
possible confusion of the law. The majority correctly recognizes that “[t]he right of a
defendant to testify at trial is a constitutional right of fundamental dimension and is
subject only to a knowing and voluntary waiver by the defendant.” United States v.
Webber, 208 F.3d 545, 550 (6th Cir. 2000) (citing Rock v. Arkansas, 483 U.S. 44, 52,
53 n.10 (1987)). Such waivers may be upheld where “[t]here is no evidence in the record
that Defendant attempted to communicate with and ‘alert the trial court’ to a
disagreement with defense counsel regarding whether Defendant should take the stand.”
Webber, 208 F.3d at 552. But an attempt to “alert” the court need not, as the majority
intimates, involve a dramatic outburst like, “I am being denied my right to testify!” See
United States v. Ortiz, 82 F.3d 1066, 1071 (D.C. Cir. 1996) (observing “the
impracticability of placing a burden on a defendant to assert a right of which he might
not be aware or to do so in contravention of the court’s instructions that the defendant
speak to the court through counsel”). This suggestion elides the circumstances under
which this Court and others have held that a district judge must inquire further into
whether a defendant is knowingly and voluntarily waiving his right to testify: a court
No. 06-6027 Hodge v. Haeberlin Page 31

may be required to so inquire if the court either becomes aware of the defendant’s stated
wish to testify or of the presence of a conflict between a defendant and his attorney. See,
e.g., United States v. Manjarrez, 258 F.3d 618, 624 (7th Cir. 2001); Webber, 208 F.3d
at 552; United States v. Sys. Architechts, Inc., 757 F.2d 373, 375-76 (1st Cir. 1985). With
that clarification, I agree that Hodge has not shown that his waiver of his right to testify
was involuntary or unknowing.

III.

Turning to Hodge’s (primary) ineffective assistance claim, the issue is whether
Hodge’s counsel was so deficient during his cross-examination of Sherry Hamilton that
Hodge is entitled to a new trial. I think so. To establish ineffective assistance of counsel,
a claimant must show two things: “A petitioner must show that counsel’s performance
was deficient, and that the deficiency prejudiced the defense.” Wiggins v. Smith, 539
U.S. 510, 521 (2003) (citing Strickland, 466 U.S. at 687). This performance is measured
by an “objective standard of reasonableness” with an eye to “prevailing professional
norms.” Strickland, 466 U.S. at 688. Prejudice occurs when there is a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. Stated differently, “[w]e do not ask whether [the
defendant] was ultimately innocent, but, rather, whether he was deprived [of] a
reasonable shot of acquittal.” Avery v. Prelesnik, 548 F.3d 434, 439 (6th Cir. 2008).
Moreover, habeas claims are governed by the now familiar standards of the
Antiterrorism and Effective Death Penalty Act of 1996, under which the writ may be
granted only if the state court’s decision “was contrary to, or involved an unreasonable
application of, clearly established federal law.” 28 U.S.C. § 2254(d)(1); Williams v.
Taylor, 529 U.S. 362, 405 (2000).

It is no surprise that Hodge’s counsel’s cross-examination of Sherry Hamilton
was a train wreck considering that he failed to prepare for it. For example, at the
beginning of his questioning, he asked Hamilton if they had ever spoken before, and she
replied that they had not. The ABA Guidelines for the Appointment and Performance
of Defense Counsel in Death Penalty Cases require counsel to “conduct thorough and
No. 06-6027 Hodge v. Haeberlin Page 32

independent investigations” to prepare for their cases. ABA Guideline 10.7 (2003). And,
though it was no longer in effect, the previous version of the ABA’s Guidelines
explicitly required counsel to interview government witnesses. No competent lawyer
would fail to interview the key—indeed the only in-person—witness against his client.

Preparation aside, Hodge’s counsel was utterly ineffective during the cross-
examination itself. He began by attempting to impeach Hamilton as a liar and a jealous
ex-spouse, but his questioning soon veered off into the irrelevant but harmful before
disintegrating into the totally devastating. (Keep in mind that none of the following was
addressed during Hamilton’s direct examination.) Hodge’s lawyer first brought up an
irrelevant “immigration scam,” of which Hodge was the chief architect.

Q: Okay. Now, after you were divorced from Mr. Pelfrey you got
married a second time, correct?
A: Yes, sir; I did.
Q: And that was to Mr. Wong.
A: Yes, sir.
Q: And that was basically an immigration scam, correct?
A: If that’s what you want to call it; yes, sir. I married him so he
could become a citizen of the United States. I lived with Benny
Hodge the whole time I was married to him. The Chinese man,
Mr. Wong, only stayed in the house with us a couple of nights.
He slept in one bedroom and Benny Hodge and I slept in the
other.
...
Q: And you were paid money for marrying Mr. Wong, correct?
...
A: I was paid $10,000 cash up front. He paid mine and Mr. Hodge’s
utilities, rent, phone bill, cable, car insurance, and bought us a
car.
J.A. 888-89.

Next, Hodge’s lawyer asked Hamilton if Hodge ever dyed his hair, which elicited
the reply, “Yes . . . . When he was on the run.” J.A. 891. Hodge’s lawyer then switched
subjects, apparently deciding that the best way to establish his client’s innocence was
to detail the specifics of his drug abuse.

Q: And for the most part during that time period, was Mr. Hodge
using substantial amounts of cocaine?
No. 06-6027 Hodge v. Haeberlin Page 33

A: Not to my knowledge, no.
Q: Okay. I mean, in fact, Mr. Hodge didn’t use cocaine; is that
correct?
A: On occasion, he may. But as an everyday thing? No, sir; he did
not.
Q: Okay, and for the most part, he was a bodybuilder, correct?
A: Yes, sir, he smoked pot every day.
Q: Okay. He smoked pot every day?
A: Yes, sir.
Q: And did he drink alcohol?
A: No, sir. He might drink occasionally, when he was with his
girlfriend.

J.A. 892-93. All this was apropos of nothing. Hodge’s counsel then switched topics
again, asking if Hamilton “remember[ed] in [19]85 when [Hodge] wore a beard
frequently?” Her predictable reply: “Yes, sir; he’d wear a beard unless he was fixing to
do a job, and he would shave it off.” J.A. 893.

Hamilton was obviously a hostile witness, and, later during cross-examination,
she began to give long monologues about her belief in Hodge’s guilt and speculation
about what Hodge was capable of. Yet Hodge’s lawyer sat idly by. For example,
Hamilton stated:

. . . . Now, I must tell the truth. The Morris family and others have to
know the truth. This man is guilty of murder. He does not deserve to be
free, because he will do it again. And I may be the next person he kills,
because he has threatened me several times to take my life.
Hodge’s counsel responded, rather, well, passively, as the Kentucky Supreme Court
observed:

At no time during or after the cross-examination of Hamilton did defense
counsel object to her answers, request that the witness be admonished
against testifying about “other crimes,” or request that the jury be
admonished to disregard her answers. Nor did defense counsel object or
ask for an admonition during the prosecutor’s inquiries on redirect. It was
only after Hamilton had been excused and the jury had been discharged
for the weekend that defense counsel moved for a mistrial on the basis of
an alleged violation of the pre-trial order [not to make reference to the
previous trial].
Hodge v. Commonwealth, 17 S.W.3d 824, 846 (2002). This was worse than foolish, it
No. 06-6027 Hodge v. Haeberlin Page 34

was inept. Indeed, most of the testimony elicited by Hodge’s own lawyer (a) was
otherwise inadmissible, and (b) was later belabored during the prosecution’s closing
argument. The majority concedes that this cross examination was “extremely damaging.”

Yet the Kentucky Supreme Court’s analysis of Hodge’s ineffective assistance
claim, reads, in its entirety:

Hodge contends that defense counsel was deficient in the investigation
and cross-examination of his former wife. The issue on direct appeal was
the admission of [prior bad acts] evidence. We held that counsel’s
continued cross examination of an obviously hostile witness was a
tactical decision. Trial strategy will not be second-guessed in a [post-
conviction] proceeding.
Hodge v. Commonwealth, 116 S.W.3d 463, 473 (Ky. 2003) (quotations omitted)
(emphasis added). This is hogwash. As the majority also concedes, Kentucky’s courts
failed to give his claim any meaningful review, so we must do our own de novo review
of these claims, though the state court’s ultimate conclusions nevertheless must receive
a dollop of deference under the AEDPA. But the majority, like the state court, falls under
the seductive notion that the word “strategy” somehow deflects all meaningful review.
Wrong: “[T]he label ‘strategy’ is not a blanket justification for conduct which otherwise
amounts to ineffective assistance of counsel.” White v. McAnnich, 235 F.3d 988, 995
(6th. Cir. 2000). The entire point of an ineffective assistance of counsel claim is to
“second-guess” trial strategy, though with deference for legitimate—and
reasonable—strategic choices. See Miller v. Anderson, 255 F.3d 455, 458 (7th Cir. 2001)
(“The fact that it was a tactic obviously does not immunize it from review in a challenge
to the lawyer’s effectiveness. Tactics are the essence of the conduct of litigation; much
scope must be allowed to counsel, but if no reason is or can be given for a tactic, the
label ‘tactic’ will not prevent it from being used as evidence of ineffective assistance of
counsel.”).

The only reason Hodge’s counsel proffered for his disastrous cross-examination
performance—that he didn’t want to draw attention to Hamilton’s answers—is
inadequate given how predictably harmful Hamilton’s testimony was. Nor does it
explain the inanity of his questioning, full as it was with discussions of Hodge’s past
No. 06-6027 Hodge v. Haeberlin Page 35

crimes and drug abuses. Indeed, very little of what went on approaches the term
“strategy.” There was nothing “strategic” about a failure to prepare, and there was
nothing strategic about a bumbling, meandering cross-examination that let in a flood of
otherwise inadmissible evidence. And, even if counsel’s failure to object or request an
admonishment regarding Hamilton’s errant statements could in some fashion be labeled
a “strategic choice” or a “tactic” in some absurd, Pollyannish sense, it was so
unreasonable that it cannot pass constitutional muster. Thus, because there were not even
minimally intelligent reasons given to explain this inadequate lawyering, I think the state
courts unreasonable in determining that Hodge’s counsel was not constitutionally
deficient.

Having concluded that Hodge’s counsel was inadequate, I have no doubt Hodge
was prejudiced by the error. The state had no direct evidence linking Hodge to the
murders, and both the Kentucky Supreme Court and the majority agree that Hodge was
convicted on the basis of Hamilton’s and Bartley’s (at-times contradictory) testimony.
Further, Bartley did not even testify in person at the second-trial—his testimony was
merely read to the jury. Sherry Hamilton was the state’s key witness linking Hodge to
the murders, and she was the only such major witness to testify in person.
Unsurprisingly, the jury’s decision was apparently quite close: the jurors at one point
announced that they were deadlocked and they requested a review of the testimony
before delivering their verdict. Hodge’s counsel’s disastrous cross-examination cost
Hodge a reasonable shot at acquittal. See Avery, 548 F.3d at 439. Thus, because the state
courts were unreasonable in concluding that Hodge’s counsel was not constitutionally
deficient, he is entitled to a new trial. I respectfully dissent.