RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0214p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
BENNY LEE HODGE,
│
Petitioner-Appellant, │
> No. 17-6032
│
v. │
│
SCOTT JORDAN, Warden, │
Respondent-Appellee. │
┘
Appeal from the United States District Court
for the Eastern District of Kentucky at Pikeville.
No. 7:13-cv-00005—David L. Bunning, District Judge.
Argued: October 20, 2020
Decided and Filed: September 10, 2021
Before: SILER, COOK, and WHITE, Circuit Judges.*
_________________
COUNSEL
ARGUED: Dennis J. Burke, DEPARTMENT OF PUBLIC ADVOCACY, LaGrange,
Kentucky, for Appellant. Brett R. Nolan, OFFICE OF THE ATTORNEY GENERAL OF
KENTUCKY, Frankfort, Kentucky, for Appellee. ON BRIEF: Dennis J. Burke,
DEPARTMENT OF PUBLIC ADVOCACY, LaGrange, Kentucky, Dana C. Hansen Chavis,
FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee,
for Appellant. Joseph A. Newberg, II, OFFICE OF THE ATTORNEY GENERAL OF
KENTUCKY, Frankfort, Kentucky, for Appellee.
SILER, J., delivered the opinion of the court in which COOK, J., joined. WHITE, J. (pp.
8–9), delivered a separate opinion concurring in part and dissenting in part.
*
The Honorable Deborah L. Cook participated in this decision before she took inactive senior status on
August 27, 2021.
No. 17-6032 Hodge v. Jordan Page 2
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OPINION
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SILER, Circuit Judge. In 1986, a Kentucky jury convicted Benny Hodge for the murder
of Tammy Acker, the attempted murder of Dr. Roscoe Acker, first-degree robbery, and
first-degree burglary. After finding Hodge and codefendant Roger Dale Epperson guilty, the
jury recommended death for both. Hodge filed this habeas petition, claiming his counsel
provided ineffective assistance of counsel (IAC) at the sentencing phase. Bound by deference
under the Antiterrorism and Effective Death Penalty Act (AEDPA), we reject that claim. Hodge
also alleges he was denied a fair trial because of jury tampering and the close relationship
between the prosecutor and jury foreman. Those claims are also without merit.1 We affirm the
district court and deny the writ.
I
Hodge and Donald Bartley posed as FBI agents to enter the home of Dr. Acker, an
Eastern Kentucky doctor. Hodge v. Commonwealth, No. 2009-SC-000791-MR, 2011 WL
3805960, at *4 (Ky. Aug. 25, 2011) (unpublished). Once inside, they tied up the elderly doctor
and his daughter, Tammy. Id. The two men, joined by Epperson, ransacked the house, and
forced Dr. Acker to open the safe they found. Epperson v. Commonwealth, 809 S.W.2d 835, 838
(Ky. 1990).
After collecting nearly $2 million in cash, Epperson and Bartley strangled Dr. Acker until
he lost consciousness. Hodge, 2011 WL 3805960, at *4. Hodge brutally stabbed Tammy at least
ten times with a large kitchen knife, killing her. Id. Together the men fled to Florida. Id. at *5.
Until they were caught, “they brazenly spent the stolen money on a lavish lifestyle and luxury
goods, including a Corvette.” Id.
After his initial conviction, Hodge’s case has gone up and down the Kentucky judicial
system three times. The Kentucky Supreme Court previously granted post-conviction relief and
1
We do not consider his claim that was not certified for appellate review. Abdur’Rahman v. Colson,
649 F.3d 468, 473 (6th Cir. 2011).
No. 17-6032 Hodge v. Jordan Page 3
ordered the trial court to consider Hodge’s jury tampering and ineffective assistance of counsel
claims. But the trial court again denied relief. The Kentucky Supreme Court affirmed. Id.
Hodge then sought habeas relief in federal court on numerous grounds. The district court
rejected each of the claims.
II
Hodge alleges that his lawyer, Dale Mitchell, provided ineffective assistance at the
penalty phase by neither investigating nor presenting mitigating evidence. He must, therefore,
show “that [his] lawyers performed well below the norm of competence in the profession and
that this failing prejudiced [his] case.” Caudill v. Conover, 881 F.3d 454, 460 (6th Cir. 2018)
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). But that is not all. The Kentucky
Supreme Court already rejected his ineffective assistance claim. So, AEDPA also requires that
Hodge demonstrate that the state court’s ruling was unreasonable. 28 U.S.C. § 2254(d). Said
simply, we must give double deference to the state court’s determination. See Harrington v.
Richter, 562 U.S. 86, 105 (2011).
Begin with Mitchell’s performance. Hodge’s mitigation case at trial consisted of a
two-sentence stipulation: he had “a loving supportive family—a wife and three children” and he
had “a public job work record.”2 Hodge, 2011 WL 3805960, at *2. The jury heard nothing else.
A lawyer, however, must investigate and reasonably present mitigating factors. See Wiggins v.
Smith, 539 U.S. 510, 521 (2003) (citing Strickland, 466 U.S. at 691). Because Mitchell did not,
the Warden agrees that Mitchell’s performance fell below the constitutional bar.
Nonetheless, Hodge must also show he was prejudiced by Mitchell’s ineffective
representation. The Kentucky Supreme Court has held he cannot. Therefore, Hodge must clear
two hurdles. First, he must demonstrate “a reasonable probability that at least one juror would
have struck a different balance.” Id. at 537. That is, the chance one juror would have voted
against death “must be substantial, not just conceivable.” Richter, 562 U.S. at 112. To do so,
Hodge must present “evidence that ‘differ[s] in a substantial way—in strength and subject
2
Mitchell did not perform a significant investigation, in part, because he was paid $200,000, not the
$350,000 he was initially promised.
No. 17-6032 Hodge v. Jordan Page 4
matter—from the evidence actually presented at sentencing.’” Caudill, 881 F.3d at 464 (quoting
Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir. 2005)). Second, Hodge must show “that the state
court’s decision is so obviously wrong that its error lies ‘beyond any possibility for fairminded
disagreement.’” Shinn v. Kayer, 141 S. Ct. 517, 523 (2020) (quoting Richter, 562 U.S. at 103)
(per curiam). And because he cannot, his claim fails.
Consider first the available mitigating evidence. Hidden behind Hodge’s sentencing
phase stipulation was a childhood marred by the “most severe and unimaginable level of physical
and mental abuse.” Hodge, 2011 WL 3805960, at *5.
But an unhappy childhood only got worse when his mother, Kate, married Billy Joe
Hodge. Billy Joe was a “monster,” prone to extreme violence. Id. at *3. Sometimes he would
be triggered by Kate’s “shows of affection towards her children.” Id. Frequently, however, he
would turn to violence for no reason at all. Billy Joe “would regularly rape Kate, threaten her
with a gun, and beat her.” Id. On one occasion his abuse caused her to have a miscarriage.
Hodge, on the other hand, was repeatedly beaten with a belt and metal buckle; kicked;
thrown against the walls; and punched. Id. Billy Joe even “rubbed Hodge’s face in his own
feces.” Id. Still worse, Billy Joe brutally killed Hodge’s dog in front of him. Id. Nobody,
including his own mother, ever did anything to end the cruelty. Id.
Billy Joe’s abuse appears to have changed Hodge’s life. Before Billy Joe entered the
home, Hodge displayed signs of normal intelligence, rarely missed school, and received decent
grades. Afterwards, “his grades declined, he became withdrawn, and he was often truant.” Id. at
*4. Hodge began to steal. So, by the age of fifteen he was sentenced to a juvenile detention
facility. Far from an oasis, the situation at the facility was not much better than his home.
Inside, he was subjected to regular and brutal beatings. Id.
Psychologists now believe that the violence he experienced both at home and in the
facility was “ruinous to his development.” Id. And the experience left him scarred with
post-traumatic stress disorder (PTSD), which “can render a person violent, hypervigilant,
aggressive, and erratic.” Id. The psychologists also believe Hodge had PTSD at the time he
killed Tammy and during the trial for that crime. Id.
No. 17-6032 Hodge v. Jordan Page 5
The court, however, must “keep in mind the State’s evidence on the other side of the
scale.” Caudill, 881 F.3d at 464 (citing Wong v. Belmontes, 558 U.S. 15, 27 (2009) (per
curiam)). And it was substantial. Hodge stabbed a young woman at least ten times with such
force that the knife went all the way through her chest, and he coolly reported the stabbing to
Epperson. He then fled to Florida where he allegedly fornicated on top of Dr. Acker’s money.
Id. at *5. Although it went unheard by the jury, Hodge also had a lengthy criminal history
(burglary, grand larceny, armed robbery, and escape). Those convictions must go on the ledger
against overturning his death sentence. See Shinn, 141 S. Ct. at 525.
After reweighing the mitigating evidence against the aggravating evidence, the Kentucky
Supreme Court found no prejudice. It reasoned that “the particularly depraved and brutal nature
of [the] crimes” meant a sentencing jury would not have spared Hodge’s life. Hodge, 2011 WL
3805960, at *5. To that point, it found that the mitigation evidence “offers virtually no rationale
for the premeditated, cold-blooded murder and attempted murder of two innocent victims who
were complete strangers to Hodge.” Id.; see also Canales v. Davis, 966 F.3d 409, 415 n.2 (5th
Cir. 2020) (finding childhood mitigation evidence does little to explain participation in a cold-
blooded murder). In other words, the Kentucky Supreme Court conducted the “probing inquiry”
required by the law. See Sears v. Upton, 561 U.S. 945, 956 (2010) (per curiam). So, although
we may have reached a different conclusion, we cannot say the Kentucky Supreme Court’s
ruling was obviously wrong. See Shinn, 141 S. Ct. at 523.
No Supreme Court precedent dictates a different conclusion. From Andrus to Williams,
each of the cases has meaningful differences from this case. See Andrus v. Texas, 140 S. Ct.
1875 (2020); Sears v. Upton, 561 U.S. 945 (2010); Porter v. McCollum, 558 U.S. 30 (2009) (per
curiam); Rompilla v. Beard, 545 U.S. 374 (2005); Wiggins, 539 U.S. at 514; Williams v. Taylor,
529 U.S. 362, 395–98 (2000). Perhaps most importantly, only Porter required the court to give
deference to a no-prejudice determination. Porter, 558 U.S. at 42. And there, the defendant’s
heroic war record provided additional (positive) mitigating evidence. Id. at 43–44. Even in this
court’s case, Foust, the defendant attempted to change the trajectory of his siblings. Foust v.
Houk, 655 F.3d 524, 543 (6th Cir. 2011). Unlike Foust and Porter, Hodge does not present any
positive mitigating factors. And unlike Foust, Hodge has a significant criminal record.
No. 17-6032 Hodge v. Jordan Page 6
Therefore, the Kentucky Supreme Court’s ruling was not contrary to Supreme Court precedent,
and “was not so obviously wrong as to be ‘beyond any possibility for fairminded disagreement.’”
Shinn, 141 S. Ct. at 526 (citing Richter, 562 U.S. at 103).
III
Hodge also alleges jury tampering. Because Hodge fails to provide credible testimony of
jury tampering, his claim fails.
Hodge’s star witness was Gary Rogers, the man “responsible for overseeing the
sequestered jury.” Hodge, 2011 WL 3805960, at *1. But Rogers had significant credibility
issues. To be sure, he testified that: (1) “he saw the jury foreman talking to [the
Commonwealth’s Attorney] at the courthouse, though he did not overhear the conversation”;
(2) “he saw [the Commonwealth’s Attorney] in the parking lot of the hotel where the jury was
sequestered”; and (3) he “remembered that one of the jurors was provided three bottles of vodka
and others with televisions and newspapers.” Id. But he contradicted those statements moments
later. Id. Indeed, he “emphatically testified that no one approached any juror and that no juror
had access to television or newspapers.” Id.
Moreover, Rogers was a convicted felon. Id. A conviction he claimed was connected to
“his attempts to assist Hodge and Epperson.” Id. It was not. Id. Rogers also denied ever
speaking to or giving statements to the Department of Public Advocacy attorneys and
investigators about the allegations. Id. at *2. Although that is certainly untrue, even his
statements to those individuals were inconsistent. Id.
Any residual belief in Rogers’s claims was further dispelled by the testimony of an
alternate juror. Id. She disputed all of Rogers’s allegations. “She testified that no jurors were
allowed visitors during sequestration and that no one communicated with the jury.” Id. She also
“testified that the jury did not discuss the case and that she had no knowledge of anyone
watching television or listening to the radio.” Id. Although she suffered from PTSD and bipolar
disease, the trial court (and the Kentucky Supreme Court) credited her testimony. Id.
No. 17-6032 Hodge v. Jordan Page 7
After review of the trial court’s findings, the Kentucky Supreme Court found there was
“no credible evidence presented to support a conclusion that any jury tampering or misconduct
occurred.” Id. We agree. Therefore, Hodge cannot meet his burden under AEDPA.
IV
Hodge did not raise his juror bias claim in state court. Instead, he asserted that Mitchell
was ineffective for failing to inquire or learn about the relationship between the
Commonwealth’s attorney and the jury foreperson. But raising an ineffective assistance claim
does not preserve the merits of the underlying substantive claim. Davie v. Mitchell, 547 F.3d
297, 312 (6th Cir. 2008). And Kentucky state procedural rules would now bar consideration of
this claim. See Hodge v. Haeberlin, 579 F.3d 627, 637–38 (6th Cir. 2009). Therefore, Hodge
must excuse his procedural default by showing cause and prejudice. Coleman v. Thompson,
501 U.S. 722, 750 (1991). He does not. Accordingly, his juror bias claim was defaulted.
V
Because we must give double deference to the law in Strickland and to the Kentucky
Supreme Court’s decision that there was insufficient prejudice to warrant granting the writ under
Strickland, we decline to grant the writ.
The denial of the writ by the district court is AFFIRMED.
No. 17-6032 Hodge v. Jordan Page 8
_______________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
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HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part. I disagree
with the majority’s conclusion that the Kentucky Supreme Court’s analysis of Strickland’s
prejudice prong was not contrary to clearly established Supreme Court precedent. I echo the
concerns of Justice Sotomayor in her dissent from the denial of Hodge’s petition for certiorari on
his post-conviction appeal. See Hodge v. Kentucky, 133 S. Ct. 506, 506-11 (2012). Although the
Kentucky Supreme Court was entitled to reweigh the mitigating and aggravating evidence, from
the language of the opinion it appears the Kentucky court determined that in instances of
particularly brutal or premeditated murder, evidence of the defendant’s difficult upbringing can
only be weighty enough to sway the jury to the extent it offers a “rationale” for the murder. And
this reasoning “is contrary to [the Supreme Court’s] cases applying Strickland’s prejudice
prong.” Id. at 510.
In Rompilla v. Beard, 545 U.S. 374 (2005), the Supreme Court considered whether a
defendant was prejudiced by his counsel’s failure to investigate and present mitigation evidence
that the defendant had grown-up in a home similarly dysfunctional to Hodge’s, endured extreme
abuse as a child, and had significant mental-health problems likely resulting from the abuse. Id.
at 392-93. Rompilla’s crime was undoubtedly brutal: he was found guilty of murdering a
bar-owner during a burglary by stabbing him and setting him on fire, and the jury specifically
found that Rompilla committed the murder by means of torture. Rompilla v. Horn, 355 F.3d
233, 236-38 (3d Cir. 2004). Rompilla also had a history of violent felonies, including a
conviction for a factually similar crime in which he had burglarized a bar after closing, raped the
bar owner, and slashed her with a knife. Id. at 237. Nonetheless, the Supreme Court found that
although it is “possible that a jury could have heard [the mitigating evidence] and still have
decided on the death penalty,” the “mitigating evidence, taken as a whole, might well have
influenced the jury’s appraisal of Rompilla’s culpability . . . and the likelihood of a different
result if the evidence had gone in [was] sufficient to undermine confidence in the outcome
actually reached at sentencing.” Rompilla, 545 U.S. at 393 (internal quotation marks and
No. 17-6032 Hodge v. Jordan Page 9
citations omitted). Although there are some differences between this case and Rompilla that may
have given the Kentucky Supreme Court leeway to come to a different factual conclusion, there
is no room in Rompilla for a rule that mitigating evidence can only sway a jury in brutal murder
cases if it offers a rationale for the crime. The facts of Rompilla’s conviction were undeniably
brutal, and his mitigation evidence did nothing to explain the crime.
Similarly, in Wiggins v. Smith, 539 U.S. 510 (2003), the Supreme Court held that the
defendant who was found guilty of drowning a seventy-seven-year-old woman in her bathtub
was prejudiced by counsel’s failure to produce evidence of a childhood characterized by extreme
neglect and physical and sexual abuse. Id. at 538. Though the crime was undoubtedly
disturbing, the Court explained that evidence of the defendant’s extremely difficult childhood,
taken with other mitigating evidence, “‘might well have influenced the jury’s appraisal’ of
Wiggins’ moral culpability.” Id. (quoting Williams v. Taylor, 529 U.S. 362, 398 (2000)). Once
again, the question whether mitigation evidence provided a rationale for the crime had no
bearing in the Court’s analysis.
Based on these cases, each of which was decided well in advance of the Kentucky
Supreme Court’s denial of Hodge’s post-conviction appeal, the Kentucky Supreme Court’s
reasoning was contrary to established Supreme Court precedent. Although a state court’s
weighing of aggravating and mitigating factors is entitled to deference such that it may not be
disturbed unless “beyond any possibility for fairminded disagreement,” it is not the weighing of
the factors itself that is problematic in this case but rather the standards the Kentucky Supreme
Court applied to conduct its analysis. The Kentucky Supreme Court’s plain language implied
that evidence regarding a defendant’s life experience could only outweigh a particularly violent
and cold-blooded crime where the defendant’s background provides a “rationale” for the crime.
And as Justice Sotomayor observed, “[t]he Kentucky Supreme Court’s brief discussion of the
weight and impact of Hodge’s mitigation evidence reasonably suggests that its prejudice
determination flowed from its legal errors.” Hodge, 133 S. Ct. at 510. That error, rather than the
weight the Kentucky Supreme Court accorded to aggravating and mitigating evidence, is what
makes this an unreasonable application of established Supreme Court precedent.
For that reason, I dissent from the denial of habeas relief.