Roger Wheeler v. Thomas Simpson

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0066p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ROGER L. WHEELER, ┐
Petitioner-Appellant, │
│
> No. 11-5707
v. │
│
│
THOMAS L. SIMPSON, Warden, │
Respondent-Appellee. │
┘

On Remand from the United States Supreme Court.
No. 3:09-cv-00336—Joseph H. McKinley Jr., Chief District Judge.

Argued: October 1, 2014

Decided and Filed: March 23, 2017

Before: MERRITT, GRIFFIN, and WHITE, Circuit Judges.
_________________

COUNSEL

ARGUED: Joseph T. Flood, SHELDON, FLOOD & HAYWOOD, PLC, Fairfax, Virginia, for
Appellant. David W. Barr, OFFICE OF THE KENTUCKY ATTORNEY GENERAL,
Frankfort, Kentucky, for Appellee. ON BRIEF: Joseph T. Flood, SHELDON, FLOOD
& HAYWOOD, PLC, Fairfax, Virginia, David M. Barron, KENTUCKY DEPARTMENT OF
PUBLIC ADVOCACY, Frankfort, Kentucky, for Appellant. David W. Barr, OFFICE OF THE
KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.

GRIFFIN, J., delivered the opinion of the court in which MERRITT and WHITE, JJ.,
joined. MERRITT, J. (pg. 15), delivered a separate concurring opinion.
 No. 11-5707 Wheeler v. Simpson Page 2

_________________

OPINION
_________________

GRIFFIN, Circuit Judge. This habeas case returns to us on remand from the Supreme
Court. Previously, this court granted habeas relief to petitioner Roger Wheeler based on the state
trial court’s decision to remove a juror who could not give sufficient assurance of neutrality or
impartiality in considering whether to impose the death penalty. See Wheeler v. Simpson,
779 F.3d 366, 374–75 (6th Cir.), rev’d sub nom. White v. Wheeler, 136 S. Ct. 456 (2015) (per
curiam). Our majority opinion also addressed and rejected petitioner’s other claims relating to
the guilt phase of the state trial proceedings, but left unresolved other claims relating to the
penalty phase. See id. at 375. Both Wheeler and respondent Thomas Simpson (“Warden”) filed
petitions for certiorari. The Supreme Court denied Wheeler’s petition, Wheeler v. White, 136 S.
Ct. 688 (2015), but granted the Warden’s, reversing our decision to issue the writ and remanding
for further proceedings, White, 136 S. Ct. at 462. We now address petitioner’s remaining claims
certified for appeal. After doing so, we affirm the judgment of the district court.

I.

In 2001, a jury convicted petitioner of two counts of intentional murder. Petitioner’s
victims were Nigel Malone and his girlfriend, Nairobi Warfield. The jury recommended a death
sentence after finding one aggravating circumstance: that petitioner’s “act . . . of killing [was]
intentional and resulted in multiple deaths[.]” Ky. Rev. Stat. § 532.025(2)(a)(6). The trial court
followed the jury’s recommendation and imposed a death sentence for each conviction. On
direct appeal, the Kentucky Supreme Court made the following findings of fact:

On October 2, 1997, Louisville police discovered the bodies of [Malone and
Warfield] in the apartment the victims shared. The male victim was found in a
hallway near the bathroom. He had suffered nine stab wounds. Two stab wounds
to the chest were considered the fatal wounds by the medical examiner. She
described the crime scene as having blood spatters on the floor, walls, furniture
and appliances. The medical examiner believed that the main struggle occurred in
the kitchen and progressed to the hallway where the body of the male victim was
found.
 No. 11-5707 Wheeler v. Simpson Page 3

The female victim died as a result of manual strangulation. The medical examiner
testified that she believed the struggle between the female and her assailant
occurred in the bedroom where she was found. The female victim had multiple
abrasions on the left side of her neck and lacerations with a bruise on her mouth
and several bruises on her lips. Her body was found in a seated position, leaning
against a bedroom wall. She was covered with a blanket or quilt and a [pair of]
scissors was protruding from her neck. The medical testimony determined that
she had been stabbed with the scissors after she was already dead. During the
autopsy, the medical examiner discovered that the female victim was pregnant.
There was blood on the floors and walls in nearly every room in the apartment.
Numerous blood samples were also collected at the scene and were subject to
laboratory testing. No fingerprints were found on the scissors.
Wheeler denied killing the two victims but he changed his story on several
occasions. Originally, he denied ever being inside of the apartment on the night
the murders occurred but then later admitted being in the apartment on that night.
He claimed that Nigel Malone was already stabbed, but that he did not see
Nairobi Warfield. He also asserts that the assailant was already inside the
apartment and he and that person fought which was why he was wounded.

Wheeler v. Commonwealth, 121 S.W.3d 173, 178 (Ky. 2003). The court affirmed petitioner’s
convictions and sentences. Id. at 189. Following his direct appeal, petitioner sought post-
conviction relief in the state courts, which was denied. See Wheeler v. Commonwealth, No.
2006-SC-000901-MR, 2008 WL 5051579, at *11 (Ky. Nov. 26, 2008) (unpublished).

Wheeler filed the instant petition for a writ of habeas corpus in 2009. A magistrate judge
recommended granting the Warden’s motion for summary judgment and denying the habeas
corpus petition. The district court agreed with the magistrate judge and denied the petition. The
district court granted a COA as to ten claims, and we later expanded the COA to include two
additional claims.

Having previously decided petitioner’s guilt-phase claims, and the Supreme Court having
denied his certiorari petition, our decision regarding those claims is law-of-the-case. See, e.g.,
Bowles v. Russell, 432 F.3d 668, 676 (6th Cir. 2005), aff’d, 551 U.S. 205 (2007) (“[O]nce an
appellate court either expressly or by necessary implication decides an issue, the decision will be
binding upon all subsequent proceedings in the same case.”) (citation omitted). It also goes
without saying that we cannot revisit petitioner’s juror-bias claim, the Supreme Court having
 No. 11-5707 Wheeler v. Simpson Page 4

reversed our holding as to that claim. We turn then to petitioner’s remaining penalty-phase
claims.

II.

The Antiterrorism and Effective Death Penalty Act of 1996 limits federal habeas review
of state court proceedings and provides that an application for a writ of habeas corpus shall not
be granted with respect to any claim that was adjudicated on the merits in state court proceedings
unless 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.

28 U.S.C. § 2254(d).

A state court adjudication is “contrary to” Supreme Court precedent under § 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 confronts facts that are materially indistinguishable from
a relevant Supreme Court precedent and arrives at [an opposite result].” Williams v. Taylor,
529 U.S. 362, 405 (2000). Under the “unreasonable application” clause of § 2254(d)(1), habeas
relief is available if “the state court identifies the correct governing legal principle from [the
Supreme Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s
case[.]” Harris v. Haeberlin, 526 F.3d 903, 909 (6th Cir. 2008) (citations omitted). “In order for
a federal court to find a state court’s application of [Supreme Court] precedent ‘unreasonable,’
the state court’s decision must have been more than incorrect or erroneous,” but rather “must
have been ‘objectively unreasonable.’” Wiggins v. Smith, 539 U.S. 510, 520–21 (2003)
(citations omitted). That means

even clear error will not suffice. Rather, as a condition for obtaining habeas
corpus from a federal court, a state prisoner must show that the state court’s ruling
on the claim being presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.
 No. 11-5707 Wheeler v. Simpson Page 5

White v. Woodall, ––– U.S. –––, 134 S. Ct. 1697, 1702 (2014) (emphasis added, citations,
quotation marks, and alterations omitted). In short, the standard for obtaining federal habeas
relief is “difficult to meet.” Id. (citation omitted).

On appeal, we review “de novo a district court’s legal conclusions and mixed questions
of law and fact and review[] its factual findings for clear error.” Moore v. Mitchell, 708 F.3d
760, 774 (6th Cir. 2013).

III.

Petitioner first argues that the trial court improperly admitted evidence as to the
availability of prison furloughs in the future. Specifically, petitioner asserts that, through this
evidence, the jury was led to believe that “unless [it] imposed a sentence of death, [petitioner]
might one day be released into the community on furloughs,” which petitioner argues was
“irrelevant speculation that unfairly tilted the evidence in favor of a death sentence in violation
of [his] constitutional right to a reliable capital sentencing determination.”

This claim is procedurally defaulted.

A habeas petitioner procedurally defaults a claim if: (1) the petitioner fails to
comply with a state procedural rule; (2) the state courts enforce the rule; (3) the
state procedural rule is an adequate and independent state ground for denying
review of a federal constitutional claim; and (4) the petitioner cannot show cause
and prejudice excusing the default.

Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010) (citation omitted).

Petitioner acknowledges that he failed to raise this claim on direct appeal, asserting it for
the first time in his state post-conviction proceeding. Thus, petitioner “fail[ed] to comply with
[Kentucky’s] procedural rule[,]” id., namely that a post-conviction proceeding is not the place for
a “convicted defendant to retry issues which could and should have been raised in the original
proceeding, nor those that were raised in the trial court and upon an appeal considered by [the
Kentucky Supreme Court].” Thacker v. Commonwealth, 476 S.W.2d 838, 839 (Ky. 1972).
Consistent with this rule, the Kentucky Supreme Court declined to review the merits of this
claim in petitioner’s post-conviction appeal. Wheeler, 2008 WL 5051579, at *9 (“If Appellant
wanted to challenge the [furlough] evidence presented at trial, he should have done so in his
 No. 11-5707 Wheeler v. Simpson Page 6

direct appeal, not by means of a [post-conviction collateral proceeding].”). This is an
independent and adequate state ground for denying review. See Lucas v. O’Dea, 179 F.3d 412,
418 (6th Cir. 1999).

Nor has petitioner demonstrated cause and prejudice to excuse this default. In the district
court, he asserted that his direct appeal counsel provided ineffective assistance in failing to raise
this issue, and that this ineffective assistance amounted to cause and prejudice, but he does not
do so in this court. Petitioner has therefore abandoned any argument regarding cause and
prejudice. See Post v. Bradshaw, 621 F.3d 406, 427 (6th Cir. 2010). In this court, he argues that
the claim should not be regarded as defaulted because the state court addressed the merits of the
issue in addressing his post-conviction ineffective-assistance-of-trial-counsel claim. However,
assuming we accept this argument, and assuming that the Kentucky Supreme Court’s discussion
can be read as a determination that the trial court properly admitted the evidence, Wheeler still
has not shown that the admission of the evidence rendered the sentencing process uncertain and
unreliable in violation of the Eighth Amendment. His reliance on Woodson v. North Carolina,
428 U.S. 280, 305 (1976) is misplaced.

IV.

Petitioner raises another claim related to evidence of furloughs. Specifically, he claims
that his trial counsel was ineffective for introducing testimony that he had received furloughs
during his previous incarceration. Petitioner argues that this testimony “suggest[ed] to the jury,
. . . [that] the defendant could receive a furlough during which he could commit another violent
crime” and “opened the door for the prosecution to utilize the furlough evidence to prejudice the
jury, to play up [petitioner’s] violent criminal history and failure to learn a lesson in prison, and
to let the jury know it was possible [petitioner] could receive a furlough if sentenced to less than
death.” In its post-conviction decision, the Kentucky Supreme Court found trial counsel’s
introduction of this evidence was a strategic attempt to show that petitioner had previously been
such a model prisoner that he received two furloughs, and was not ineffective assistance of
counsel. Wheeler, 2008 WL 5051579, at *10.
 No. 11-5707 Wheeler v. Simpson Page 7

The general standards governing a claim of ineffective assistance of counsel are set forth
in Strickland v. Washington, 466 U.S. 668 (1984). To demonstrate ineffective assistance of
counsel, “[a] petitioner must show that counsel’s performance was deficient, and that the
deficiency prejudiced the defense.” Wiggins, 539 U.S. at 521 (citing Strickland, 466 U.S. at
687).

In the context of a death sentence, the question of prejudice turns on “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
conclude that the balance of aggravating and mitigating circumstances did not
warrant death.”

Hill v. Mitchell, 400 F.3d 308, 314 (6th Cir. 2005) (quoting Strickland, 466 U.S. at 695). “When
§ 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Harrington v. Richter, 562 U.S. 86, 105 (2011). We conclude that petitioner has not
shown that the Kentucky Supreme Court’s conclusion that trial counsel was pursuing a
reasonable strategy with regard to the furlough testimony was contrary to, or an unreasonable
application of, Strickland.

At the penalty phase, petitioner’s counsel introduced a variety of evidence intended to
establish that petitioner had been a model prisoner during previous incarcerations, including
evidence of furloughs. For example, petitioner’s trial counsel introduced the testimony of
Michael Cooper, an employee at the Luther Luckett Correctional Complex where petitioner had
served a prior term of incarceration. Cooper testified that petitioner worked for him as a janitor
in the Property Room and exhibited a “good work ethic” and required “very, very little
supervision.” Cooper testified he was not aware of any disciplinary action ever being taken
against petitioner. According to Cooper, petitioner received two furloughs while incarcerated.
Cooper added that he did not know whether prisons still offered furloughs, but believed that none
had been granted “for several years,” noting that such a grant was “extremely rare.”

Petitioner’s counsel also introduced the testimony of Robin Rawlings, who had recently
worked as a Classification and Treatment Officer with the Department of Corrections and as a
Probation and Parole Officer with the Commonwealth’s Department of Justice. Rawlings
 No. 11-5707 Wheeler v. Simpson Page 8

testified that, as an inmate, petitioner worked as a janitor in the administration building, which
included the offices for the prison warden and the deputy warden. Rawlings indicated that she
spoke with petitioner every day, and she was not aware of any complaints, conflicts, or problems
from either the staff or other inmates regarding him. Rawlings also worked with petitioner
within a small group setting to assist inmates with their chemical dependency issues. Prison life
is “very regulated and dictated by rules[,]” according to Rawlings, and petitioner was a “model
inmate.”

Rawlings was also queried about furloughs. To that end, Rawlings testified that, based
on the policy in place at the time she was employed at the prison, she was “positive” that
petitioner would not be eligible for a furlough given his two murder convictions. On cross-
examination, the prosecutor also asked Rawlings about furloughs:

[PROSECUTOR]: Um, Ms. Rawlings, uh, as far as furloughs are concerned,
there was a time when individuals who were convicted of murder were granted
furloughs, is that correct?
ROBIN RAWLINGS: Yes, sir, that’s true.
[PROSECUTOR]: Okay, and they changed the policy at some point, right?
ROBIN RAWLINGS: Yes, they did.
[PROSECUTOR]: Okay, and you can’t, uh, tell this jury what the policy is going
to be in the future, 20, 30 years? You don’t know that, do you?
ROBIN RAWLINGS: That’s true, sir.
[PROSECUTOR]: Okay, policies change?
ROBIN RAWLINGS: Yes, they do.

The record indicates that, when introducing testimony about petitioner’s prior furloughs,
petitioner’s trial counsel was attempting to obtain a sentence other than death for petitioner. For
example, during closing arguments, petitioner’s trial counsel stated:

We’re not saying that these people did not suffer or that their families do not
continue to suffer. We are telling you that the death penalty is not your only
option. If you find the mitigation, if you find any redeeming qualities, and there
are some there, you should give him his life.

Testimony by Cooper and Rawlings showed that Wheeler worked well within the structured
environment of prison during the time of his previous incarceration. Wheeler had already
 No. 11-5707 Wheeler v. Simpson Page 9

admitted to being a convicted felon during his guilt-phase testimony. At the penalty phase, the
prosecution introduced evidence that petitioner pleaded guilty to ten counts of robbery on
November 20, 1991, for which he was sentenced to twenty years of imprisonment, and that, later,
on August 13, 1998, petitioner was convicted for illegal possession of a controlled substance
(cocaine), for which he received a sentence of one year.

In the context of this record, petitioner’s counsel argued that petitioner suffered from a
drug addiction but could otherwise thrive within the structured environment of prison life:

When you think of these offenses, I would think of someone who’s been in
trouble all their lives, who’s never been responsible, who’s never been stable,
who could never hold a job, who could never find someone to love him or care
about him. But that’s not what we found here in the case of Roger Wheeler. We
have found someone who has been, at one time, responsible and capable and
stable and able to work and able to contribute, and I think he can still contribute in
the penitentiary.

Based on this record, we conclude that petitioner is not entitled to relief on his
ineffective-assistance-of-trial-counsel claim. A petitioner has a constitutional right to present
testimony during the penalty phase about his good behavior while incarcerated. See Skipper v.
South Carolina, 476 U.S. 1, 4 (1986). That is what petitioner’s trial counsel did. The furlough
evidence took two forms: the model-prisoner mitigation testimony (e.g., Cooper’s direct
examination) and the furloughs-for-murderers testimony (e.g., Rawlings’ cross-examination).
Although the Kentucky Supreme Court cited the more positive furlough testimony as one of the
reasons for affirming the admissibility of Rawlings’ negative testimony, that does not negate the
fact that the furloughs showed the trust petitioner had earned with prison officials, and that trial
counsel had a reasonable strategy for introducing it. In Campbell v. Bradshaw, 674 F.3d 578,
588 (6th Cir. 2012), this court concluded that trial counsel was not ineffective for introducing the
petitioner’s entire incarceration record (including bad conduct while in custody) during the
penalty phase of trial because it was “part of a strategic effort to be candid with the jury about
Campbell’s past in an effort to gain credibility and, ultimately, obtain a life sentence for
Campbell.” No prejudice resulted in that case because a mental health expert addressed the same
information and the jury heard much of the negative information from other sources. Id. at 589.
The same occurred here, and thus, the same result is warranted. Notwithstanding the furlough
 No. 11-5707 Wheeler v. Simpson Page 10

testimony, the jury was aware that petitioner had served only a fraction of his twenty-year
sentence from his prior convictions.

V.

Petitioner raises another ineffective assistance of counsel claim related to the furlough
testimony. Specifically, petitioner argues that his counsel was constitutionally ineffective for
failing to object when the prosecutor cross-examined Rawlings about the potential availability of
future furloughs and when the prosecutor raised the furlough issue in closing arguments. We
disagree.

Initially, as for his claim regarding his counsel’s failure to object at oral argument, this
claim is procedurally defaulted. Petitioner did not raise this claim in state court, and
consequently the Kentucky Supreme Court’s decision was silent on the issue. See Wheeler, 2008
WL 5051579. Under Kentucky’s rules of criminal procedure, petitioner had three years “after
the judgment [became] final” to raise this issue. Roach v. Commonwealth, 384 S.W.3d 131, 135
(Ky. 2012) (explaining Ky. R. Cr. 11.42(10)). That time has now passed. Accordingly,
petitioner has procedurally defaulted this claim. See Lovins v. Parker, 712 F.3d 283, 295 (6th
Cir. 2013) (“[A] claim is procedurally defaulted where the petitioner failed to exhaust state court
remedies, and the remedies are no longer available at the time the federal petition is filed because
of a state procedural rule.”).

Nor is habeas relief appropriate on petitioner’s claim regarding his counsel’s failure to
object during Rawlings’ cross-examination. This claim is not procedurally defaulted because
petitioner raised it in his state post-conviction relief proceedings. However, petitioner cannot
show deficient performance or prejudice arising from his trial counsel’s failure to object to the
prosecution’s cross-examination of Rawlings. The Kentucky Supreme Court rejected the claim,
observing that the information contained within Rawlings’ testimony was accurate and not
misleading, and trial counsel was accordingly not ineffective for failing to object to it. Wheeler,
2008 WL 5051579, at *10. The court further found that because petitioner introduced the
furlough evidence in mitigation, the prosecutor was allowed to challenge it. Id. Petitioner’s
concern about the speculative nature of Rawlings’ testimony is also unavailing. In California v.
 No. 11-5707 Wheeler v. Simpson Page 11

Ramos, 463 U.S. 992, 1004 (1983), the Supreme Court rejected a similar argument—that a jury
should not be instructed that a governor has the power to commute a sentence of life without
parole as speculative and misleading—because the instruction in question “gives the jury
accurate information of which both the defendant and his counsel are aware, and it does not
preclude the defendant from offering any evidence or argument regarding the Governor’s power
to commute a life sentence.” (footnote omitted). The same is true here.

VI.

Petitioner also challenges the penalty-phase jury instructions, alleging that they violated
Mills v. Maryland, 486 U.S. 367 (1988), by improperly instructing jurors that they were required
to be unanimous regarding the presence of mitigating factors. This issue was raised on direct
appeal, and the Kentucky Supreme Court found no constitutional error. Wheeler, 121 S.W.3d at
188–89.

“The Constitution forbids imposition of the death penalty if the sentencing judge or jury
is ‘precluded from considering, as a mitigating factor, 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.’” Henness v. Bagley, 644 F.3d 308, 328 (6th Cir. 2011) (quoting Smith
v. Spisak, 558 U.S. 139, 144 (2010)). “A challenge to a jury instruction is not to be viewed in
‘artificial isolation,’ but rather must be considered within the context of the overall instructions
and trial record as a whole.” Hanna v. Ishee, 694 F.3d 596, 620–21 (6th Cir. 2012) (quoting
Estelle v. McGuire, 502 U.S. 62, 72 (1991)). “To warrant habeas relief, ‘jury instructions must
not only have been erroneous, but also, taken as a whole, so infirm that they rendered the entire
trial fundamentally unfair. The burden is even greater than that required to demonstrate plain
error on appeal.’” Buell v. Mitchell, 274 F.3d 337, 355 (6th Cir. 2001) (quoting Scott v. Mitchell,
209 F.3d 854, 882 (6th Cir. 2000)).

Petitioner’s claim lacks merit. Essentially, petitioner’s argument is that because the trial
court instructed the jurors that their verdict had to be unanimous, but was silent in instructing
them about unanimity as applied to mitigating factors, the jurors must have inferred that their
mitigating-factor determinations must also be unanimous. However, “failing to expressly state
 No. 11-5707 Wheeler v. Simpson Page 12

that mitigating factors need not be unanimously found does not improperly imply that mitigating
factors must be unanimously found.” Williams v. Anderson, 460 F.3d 789, 808 n.5 (6th Cir.
2006). Here, the trial court used the word “unanimous” only once, to explain that the verdict
must be so: “The verdict of the jury must be in writing, must be unanimous, and must be signed
by one of you as Foreperson.” The verdict form required only that the jury find an aggravating
circumstance to recommend the death sentence. Requiring a unanimous verdict as to the
sentence is not unconstitutional. See Moore, 708 F.3d at 794. Accordingly, although the
Kentucky Supreme Court’s decision did not refer to Mills, its finding of no constitutional error
was not contrary to, nor would it have been an unreasonable application of, Mills. See Slagle v.
Bagley, 457 F.3d 501, 513–14 (6th Cir. 2006) (citation omitted) (holding that a state court in its
decision need not cite or be aware of relevant Supreme Court cases so long as its reasoning and
result are consistent with them).

VII.

Next, petitioner claims that several statements by the prosecutor during the penalty phase
amounted to misconduct. Specifically, petitioner claims that the prosecutor made
constitutionally impermissible statements when referring to petitioner’s evidence of his struggles
with substance abuse as “excuses” and when allegedly offering his personal opinion about the
case and petitioner’s decision to present mitigation testimony from his thirteen-year-old son. He
alleges that these statements denied him a fundamentally fair trial in violation of his
constitutional due process rights. We disagree.

A petitioner faces a high bar when bringing claims of prosecutorial misconduct. “For the
prosecutor’s misconduct to violate the defendant’s due process rights, it ‘is not enough that the
prosecutor’s remarks were undesirable or even universally condemned’; instead those comments
must ‘so infect[] the trial with unfairness as to make the resulting conviction a denial of due
process.’” Beuke v. Houk, 537 F.3d 618, 646 (6th Cir. 2008) (quoting Darden v. Wainwright,
477 U.S. 168, 181 (1986)). Indeed, “[t]he prosecution . . . has ‘wide latitude’ during closing
argument to respond to the defense’s strategies, evidence and arguments.” Bedford v. Collins,
567 F.3d 225, 233 (6th Cir. 2009) (quoting United States v. Henry, 545 F.3d 367, 377 (6th Cir.
2008)).
 No. 11-5707 Wheeler v. Simpson Page 13

Petitioner is not entitled to relief on these claims. The wide latitude afforded to
prosecutors was properly exercised here. The prosecution did not tell the jury not to consider
Wheeler’s mitigation testimony, but rather questioned the weight to be given to it. To the extent
that either comment approached the bounds of permissible closing argument, the Kentucky
Supreme Court’s decision that they did not cross the line into a constitutional violation was not
contrary to, or an unreasonable application of, clearly established federal law. Wheeler, 121
S.W.3d at 189; 28 U.S.C. § 2254(d)(1); Beuke, 537 F.3d at 646.

VIII.

Petitioner also claims that Kentucky’s proportionality review violates the Eighth
Amendment and denied him due process. Specifically, petitioner argues that Kentucky’s
proportionality review is unconstitutional because it only incorporates cases in which the death
sentence was imposed and thus results in an arbitrary application of death sentences.
We disagree. As this court previously explained in Bowling v. Parker:

The Supreme Court has held that the Constitution does require proportionality
review, but that it only requires proportionality between the punishment and the
crime, not between the punishment in this case and that exacted in other cases.
See Pulley v. Harris, 465 U.S. 37, 50 (1984). Although “[t]here is no federal
constitutional requirement that a state appellate court conduct a comparative
proportionality review,” McQueen v. Scroggy, 99 F.3d 1302, 1333–34 (6th Cir.
1996), cert. denied, 521 U.S. 1130 (1997), Kentucky law does require the
Kentucky Supreme Court to engage in comparative proportionality review. See
Ky. Rev. Code Ann. § 532.075(3)(c). Although claimed violations of state law
are generally not cognizable on habeas, the Supreme Court has left room for the
argument that a state-law error could, potentially, “be sufficiently egregious to
amount to a denial of equal protection or of due process of law guaranteed by the
Fourteenth Amendment.” Harris, 465 U.S. at 41.

344 F.3d 487, 521 (6th Cir. 2003) (parallel citations omitted). The Bowling court expressed
skepticism over whether § 532.075(3)(c) created a due process interest, noting that “the statute
only explains what the Kentucky Supreme Court needs to consider—similar cases, the crime,
and the defendant—it does not tell that court how to make this decision. This suggests . . . that
no due-process right exists” pursuant to § 532.075(3)(c). Id. at 521–22.
 No. 11-5707 Wheeler v. Simpson Page 14

Petitioner attempts to distinguish this case from Bowling, arguing that it “considered only
a due process argument and merely noted that proportionality review is not required in light of
Harris” but did not address what petitioner calls “threshold” statutes. According to petitioner,
“Gregg [v. Georgia, 428 U.S. 153 (1976),] and [Zant v.] Stephens, [462 U.S. 862 (1983),]
require jurisdictions with ‘threshold’ statutes to consider in proportionality review cases where
the death penalty was not imposed.” Petitioner defines “threshold statutes” as akin to “Georgia’s
and Kentucky’s statutes that permit juries to impose death as long as an aggravator is found and
mitigation considered.” The Supreme Court in Harris, however, saw things differently:

While emphasizing the importance of mandatory appellate review under the
Georgia statute, [Stephens], 103 S. Ct., at 2742, we did not hold that without
comparative proportionality review the statute would be unconstitutional. To the
contrary, we relied on the jury’s finding of aggravating circumstances, not the
State Supreme Court’s finding of proportionality, as rationalizing the sentence.
Thus, the emphasis was on the constitutionally necessary narrowing function of
statutory aggravating circumstances. Proportionality review was considered to be
an additional safeguard against arbitrarily imposed death sentences, but we
certainly did not hold that comparative review was constitutionally required.
There is thus no basis in our cases for holding that comparative proportionality
review by an appellate court is required in every case in which the death penalty
is imposed and the defendant requests it. Indeed, to so hold would effectively
overrule Jurek [v. Texas, 428 U.S. 262 (1976),] and would substantially depart
from the sense of Gregg and Proffitt [v. Florida, 428 U.S. 242 (1976)]. We are
not persuaded that the Eighth Amendment requires us to take that course.

465 U.S. at 50–51 (footnote omitted). Because petitioner offers no Supreme Court precedent
supporting his notion that the Kentucky Supreme Court should have compared his case to cases
in which the death penalty was not imposed, we conclude he is not entitled to relief on this claim.

IX.

For the foregoing reasons, we conclude that petitioner is not entitled to habeas relief on
any of his claims. We therefore affirm the judgment of the district court.
 No. 11-5707 Wheeler v. Simpson Page 15

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CONCURRENCE
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MERRITT, Circuit Judge, concurring. I continue to believe that the Ohio acquittal-first
jury instructions in this case and many others are highly confusing. It could easily lead one or
more jurors to believe that they may not excuse the defendant from the death penalty and impose
life imprisonment unless they first acquit the defendant when weighing aggravators and
mitigators. I have set this argument out in detail several times, most recently in a majority
opinion, Mitts v. Bagley, 620 F.3d 650, 656-58 (6th Cir. 2010), rev’d sub nom. Bobby v. Mitts,
563 U.S. 395 (2011); but as this citation indicates, the Supreme Court did not agree. Of course, I
am now bound to follow the Supreme Court holding even though I believe its result and its
reasoning are wrong.