Strouth v. Colson

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0149p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Petitioner-Appellant, -
DONALD WAYNE STROUTH,
-
-
-
No. 08-6116
v.
,
>
-
Respondent-Appellee. -
ROLAND COLSON, Warden,
-
N
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 3:00-cv-836—William J. Haynes, Jr., District Judge.
Argued: April 17, 2012
Decided and Filed: May 23, 2012
Before: SUTTON, COOK and KETHLEDGE, Circuit Judges.

_________________

COUNSEL
ARGUED: Jerome C. Del Pino, FEDERAL PUBLIC DEFENDER'S OFFICE,
Nashville, Tennessee, for Appellant. James E. Gaylord, OFFICE OF THE ATTORNEY
GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: Jerome C. Del Pino,
Henry A. Martin, FEDERAL PUBLIC DEFENDER'S OFFICE, Nashville, Tennessee,
Mark E. Olive, Tallahassee, Florida, for Appellant. James E. Gaylord, OFFICE OF THE
ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.
_________________

OPINION
_________________

SUTTON, Circuit Judge. Thirty-four years ago, a jury convicted Donald Strouth
of first-degree murder for killing James Keegan during a robbery of Keegan’s used-
clothing store in Kingsport, Tennessee. The jury sentenced Strouth to death, a sentence
the Tennessee appellate courts affirmed on direct appeal and in two collateral-review

1
No. 08-6116 Strouth v. Colson Page 2

proceedings. Strouth sought a writ of habeas corpus in federal district court, asserting
sixteen grounds for relief. The district court denied the petition. We affirm.

I.

On February 15, 1978, Keegan’s wife found her husband’s dead body on the
floor of his clothing store. The seventy-year-old man’s throat had been slit “from ear to
ear.” Strouth v. State (Strouth IV), 999 S.W.2d 759, 761 (Tenn. 1999). The State
charged Strouth and Jeffrey Dicks with robbery and murder, trying them separately to
avoid the possibility that either one might be unconstitutionally prejudiced by his co-
defendant’s inculpatory statements to the police. See Bruton v. United States, 391 U.S.
123 (1968). The evidence at trial “tended to show that Strouth had been the person who
actually cut Keegan’s throat”: witnesses saw blood on Strouth’s hands and clothes
shortly after the murder; the medical examiner testified that blood spots on Strouth’s
pants were consistent with his having stood over Keegan and cut his throat; Strouth’s
girlfriend testified he had confessed to the robbery and said that during it, “Jeff froze on
me”; and Keegan’s wound could have been inflicted by a hawkbill knife that Strouth’s
girlfriend had given him. Strouth IV, 999 S.W.2d at 761. The police also found various
items missing from Keegan’s store in Strouth’s possession, and a friend of Strouth’s
testified that Strouth had confessed to killing a man. Strouth v. State (Strouth II), 755
S.W.2d 819, 827 (Tenn. Crim. App. 1986).

The jury convicted Strouth of robbery with a deadly weapon and felony murder.
In the penalty phase of the trial, the jury found two aggravating circumstances beyond
a reasonable doubt: that the murder was “heinous, atrocious or cruel” and that Strouth
murdered Keegan in the process of committing a robbery. State v. Strouth (Strouth I),
620 S.W.2d 467, 469 (Tenn. 1981). The Tennessee Supreme Court affirmed Strouth’s
murder conviction and death sentence. Id. at 473.

The following year, Strouth petitioned the state trial court for postconviction
relief, claiming ineffective assistance of counsel during the guilt and penalty phases of
the trial. The Court of Criminal Appeals denied Strouth’s petition, and the Tennessee
Supreme Court denied leave to appeal. Strouth II, 755 S.W.2d at 819, 833; see Strouth
No. 08-6116 Strouth v. Colson Page 3

IV, 999 S.W.2d at 762. In 1988, Strouth filed a federal habeas petition. Four years later,
while that petition was still before the district court, the Tennessee Supreme Court held
that when a jury convicts a defendant of capital felony murder, the State may not use the
underlying felony as an aggravating circumstance. State v. Middlebrooks, 840 S.W.2d
317, 346 (Tenn. 1992), superseded in part by statute, see State v. Reid, 91 S.W.3d 247,
306 n.13 (Tenn. 2002). Strouth asked the district court to hold his petition in abeyance
while he pursued a Middlebrooks claim in state court, but the district court dismissed his
petition without prejudice.

Back in state court, Strouth prevailed on his Middlebrooks claim. It was an
empty victory. The court deemed the error harmless, reasoning that the jury would have
imposed the same death sentence based on the other aggravating circumstance in the
case—that the murder was heinous, atrocious or cruel. Strouth IV, 999 S.W.2d at
763–67. Strouth raised several other new challenges to his conviction and sentence,
involving jury instructions and allegedly withheld evidence, but the Court of Criminal
Appeals rejected these claims too, Strouth v. State (Strouth III), No. 03C01-9507-CC-
00195, 1997 WL 90636, at *7–10 (Tenn. Crim. App. Mar. 4, 1997), and the Tennessee
Supreme Court declined to review them, see Strouth IV, 999 S.W.2d at 763.

Strouth filed a new federal habeas petition in 2000. Applying the Antiterrorism
and Effective Death Penalty Act (AEDPA), the district court denied Strouth’s petition
but granted a certificate of appealability on most of his claims.

II.

At the outset, we must decide whether AEDPA governs Strouth’s case (the
State’s position) or whether pre-AEDPA law applies (Strouth’s position). Strouth filed
his first federal habeas petition in 1988, but the district court dismissed it without
prejudice to permit Strouth to exhaust his claims in state court. After Strouth exhausted
his claims, he filed a new federal petition in 2000, four years after AEDPA went into
effect.
No. 08-6116 Strouth v. Colson Page 4

AEDPA applies to “[a]n application for a writ of habeas corpus,” and the
deference required by the statute applies to “any claim that was adjudicated on the merits
in State court.” 28 U.S.C. § 2254(d). Consistent with this language, the Supreme Court
has held that when a “federal habeas corpus application [is] not filed until after
AEDPA’s effective date, that application is subject to AEDPA’s amendments.”
Woodford v. Garceau, 538 U.S. 202, 210 (2003) (emphasis added); cf. Lindh v. Murphy,
521 U.S. 320, 336 (1997) (holding that AEDPA applies to petitions filed after its
effective date, not to petitions pending on its effective date). There is just one habeas
application in this instance, and it was filed four years after AEDPA’s 1996 effective
date. The 1988 petition cannot be the relevant application because it no longer exists.
The effect of dismissing a complaint without prejudice, as the district court did here, is
to “treat[ it] as if it never existed.” Hull v. Kyler, 190 F.3d 88, 103 (3d Cir. 1999).

Strouth’s 2000 habeas petition not only included new claims in the sense that
some of them had now been reviewed by the state courts, but it also included new claims
altogether—claims unrelated to the 1988 petition. Were we to accept his invitation to
apply pre-AEDPA standards to his 2000 petition, we either would give him an
undeserved windfall (by allowing new post-1996 claims to be assessed under pre-
AEDPA law) or would be forced to bifurcate this one application into two (by treating
some of it as filed before 1996 and some of it as after). There is no precedent for either
approach.

Every circuit to address this question has held that AEDPA governs the later
application. See Sacco v. Cooksey, 214 F.3d 270, 273 (2d Cir. 2000) (per curiam); Hull,
190 F.3d at 103–04; Taylor v. Lee, 186 F.3d 557, 559–60 (4th Cir. 1999); Tassin v. Cain,
517 F.3d 770, 776 & n.18 (5th Cir. 2008); Sanchez v. Gilmore, 189 F.3d 619, 622–23
(7th Cir. 1999); Ryan v. Clarke, 387 F.3d 785, 789 (8th Cir. 2004); Chapman v.
LeMaster, 302 F.3d 1189, 1193–94 (10th Cir. 2002). Other courts, including ours, have
not explicitly taken the question head on but have applied AEDPA in situations like this
one, where the state prisoner filed an unexhausted claim before 1996 and an exhausted
claim later. See, e.g., Johnson v. Bell, 525 F.3d 466, 473 (6th Cir. 2008); James v. Ryan,
No. 08-6116 Strouth v. Colson Page 5

___ F.3d ___, 2012 WL 639292, at *16–17 (9th Cir. Feb. 29, 2012); Blankenship v. Hall,
542 F.3d 1253, 1270–71 & n.3 (11th Cir. 2008).

Strouth’s response to all of this is not to offer a different construction of the
language or to identify contrary precedents. He instead makes a practical point—that
the district court could have held his petition in abeyance while he exhausted his claims
rather than dismissed the petition without prejudice. Whether AEDPA applies, he adds,
“should not turn on which federal district judge is assigned to a case and whether he or
she keeps the case on the docket or chooses not to do so.” Br. at 61. It is not that
simple. True, the Supreme Court has endorsed the “stay-and-abeyance” practice in order
to protect diligent prisoners from running afoul of AEDPA’s one-year statute of
limitations through no fault of their own. See Rhines v. Weber, 544 U.S. 269, 276–79
(2005). But, in doing so, it noted that the practice, “if employed too frequently, has the
potential to undermine” AEDPA’s “twin purposes” of finality and efficiency in federal
habeas. Id. at 277. As a result, the Court concluded, stay and abeyance “should be
available only in limited circumstances” when dismissal without prejudice would likely
thwart any opportunity for federal review of a diligent prisoner’s potentially meritorious
claims. Id. That is not the problem here, as no one claims that the procedure used by
the district court created (or avoided) a limitations problem.

AEDPA applies. To prevail, Strouth thus must demonstrate that the state courts’
resolution of his claims “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

III.

A.

Ineffective assistance (guilt phase). Strouth says he received ineffective
assistance of counsel during the guilt phase of his trial because his attorney “failed to
interview critical prosecution witnesses and, consequently, to impeach their testimony.”
Br. at 64–65. He focuses on the testimony of three witnesses: Barbara Davis (Strouth’s
No. 08-6116 Strouth v. Colson Page 6

girlfriend, who testified that Strouth admitted to participating in the robbery); Betty
Dicks (wife of Jeffrey Dicks, Strouth’s co-defendant, who testified that Strouth told her
he slit Keegan’s throat); and Jeffrey McMahan (an acquaintance of Strouth, who testified
that shortly after the murder Strouth confessed to killing someone). Had his attorney
properly interviewed these witnesses ahead of time, Strouth contends, he would have
uncovered substantial impeachment evidence. That would have included the following:
Davis agreed to testify only because the police threatened to prosecute her as an
accomplice; Betty Dicks was determined to implicate Strouth in order to deflect blame
from her husband and went so far as to offer sex and money to McMahan for favorable
testimony; and Strouth previously told McMahan made-up stories about killing people,
calling into question the truth of the confession.

To get anywhere on this claim, Strouth must show that his attorney performed
unreasonably and that his poor representation prejudiced the case. Strickland v.
Washington, 466 U.S. 668, 687 (1984). In holding that Strouth satisfied neither
requirement, see Strouth II, 755 S.W.2d at 825–27, the Court of Criminal Appeals
emphasized his shortcomings in meeting the second prong—that he “has not shown a
reasonable probability that any of the witnesses could have testified differently but for
counsel’s conduct in failing to interview all witnesses prior to trial, or that significant
impeachment testimony was lost thereby.” Id. at 827. The court pointed out that none
of the testimony would “negate the physical evidence, including recovery of the items
taken from the store, the stolen cash, and Strouth’s blood-spattered jeans”; that there is
no evidence Davis’s trial testimony was coerced; and that the jury knew Betty Dicks was
Jeffrey Dicks’s wife and hence partial toward him, so any further impeachment on that
point would have been of little value. Id. at 826–27.

This reasoning neither contradicts nor unreasonably applies Supreme Court case
law. Other than Strickland, Strouth does not cite a single Supreme Court case to support
his argument, an omission that does not by itself doom the claim but that underscores a
difficult reality. It is not easy to satisfy Strickland through the failure to impeach
prosecution witnesses when the impeachment evidence is weak and cumulative, and the
No. 08-6116 Strouth v. Colson Page 7

evidence of the defendant’s guilt is “overwhelming,” all true here, Strouth II, 755
S.W.2d at 833. See, e.g., United States v. Munoz, 605 F.3d 359, 381–82 (6th Cir. 2010);
Davis v. Booker, 589 F.3d 302, 309 (6th Cir. 2009); Hodge v. Haeberlin, 579 F.3d 627,
646 (6th Cir. 2009); Moore v. Parker, 425 F.3d 250, 253 (6th Cir. 2005).

Strouth’s court-of-appeals citations do not improve matters. For one thing, none
of them was an impeachment case; they involved claims that defense counsel should
have called witnesses favorable to the defense who never testified. For another thing,
each decision involved undiscovered witnesses who would have undercut a key part of
the government’s case. See Ramonez v. Berghuis, 490 F.3d 482, 489 (6th Cir. 2007)
(trial “boil[ed] down to a credibility contest” between complainant and defendant, and
witnesses would have corroborated defendant’s account of the facts); Towns v. Smith,
395 F.3d 251, 260 (6th Cir. 2005) (witness would have testified that other people
committed the crime, where there were “notable weaknesses in the prosecution’s case,”
which rested entirely on one eyewitness); Groseclose v. Bell, 130 F.3d 1161, 1166, 1170
(6th Cir. 1997) (trial counsel failed to call any witnesses, introduce any evidence, or
develop a theory of the case even though the evidence linking the defendant to the crime
was “relatively weak”). The same cannot be said here. As the state courts recognized,
Strouth’s new impeachment evidence was marginal at best and the evidence of his guilt
was strong at the least. The district court properly rejected this claim.

B.

Ineffective assistance (penalty phase). As to the penalty phase of the trial,
Strouth argues his attorney should have done more: (1) hired an expert to perform a
mental-health evaluation of Strouth, which allegedly would have revealed evidence of
brain damage and mental illness; (2) investigated his troubled upbringing and family
problems; (3) investigated his criminal records in North Carolina to rebut the State’s
introduction of that evidence in support of an aggravating circumstance; and
(4) emphasized Strouth’s youth as a mitigating circumstance. We disagree.

1. Mental-health evaluation. While litigating his first petition for postconviction
relief in state court, Strouth sought state funding to develop expert testimony about his
No. 08-6116 Strouth v. Colson Page 8

mental health. The court denied his request. Strouth II, 755 S.W.2d at 821. In
reviewing that decision, the Court of Criminal Appeals reasoned that Strouth waived the
mental-health issue by not raising it on direct appeal. Id. at 822. Nor did ineffective
assistance of appellate counsel excuse the waiver, the court held, as Strouth could not
show prejudice because he made “no showing” of what a mental-health evaluation
“would have turned up that might have affected the outcome of the sentencing hearing.”
Id. This was not an unreasonable application of Supreme Court law, which requires a
State to fund a psychiatric evaluation only when the defendant’s mental health is “likely
to be a significant factor in his defense.” Ake v. Oklahoma, 470 U.S. 68, 82–83 (1985).

Strouth tried to revive the claim in his second petition for postconviction relief
in state court. The Court of Criminal Appeals rejected it, holding that the Middlebrooks
error (involving the felony-murder aggravating circumstance) did not change the court’s
earlier analysis. Strouth III, 1997 WL 90636, at *6 n.4; see also Strouth IV, 999 S.W.2d
at 767.

In his federal habeas petition, Strouth seeks to “supplement[]” the record with
“expert evaluations of his longstanding mental illness.” Br. at 99–100. But in reviewing
the state court’s resolution of Strouth’s claim, federal courts must “limit[ ]” themselves
to “the record that was before the state court.” Cullen v. Pinholster, 563 U.S. ___, 131
S. Ct. 1388, 1398 (2011). The new mental-health evidence has no bearing on whether
AEDPA permits us to grant him habeas relief on this claim. And because that is the only
ground on which Strouth seeks relief with respect to this claim, the claim necessarily
fails. Even if that were not the case, the district court’s reasoning on this score
independently suffices to reject this claim: recent mental evaluations offer little insight
into Strouth’s state of mind twenty-five-plus years ago, as the state courts reasonably
concluded in finding no prejudice.

2. Troubled upbringing and family problems. Strouth argues his attorney failed
him during the penalty phase by declining to investigate his childhood. Strouth notes
he was raised in a troubled area of Maryland by a single mother who was “constantly
yelling at her children” and sometimes resorted to corporal punishment. Br. at 9. He did
No. 08-6116 Strouth v. Colson Page 9

not fit in well at school, he adds, and frequently ran away from home, and the authorities
eventually placed him in a state children’s facility.

The state courts reasonably applied Supreme Court precedent in rejecting this
claim. Strouth, for starters, “refused to let counsel call his mother to testify about his
difficulties as a child.” Strouth II, 755 S.W.2d at 828. It is difficult to investigate an
area to which the client refuses access. Even then, Strouth’s upbringing, forlorn though
it was in several respects, does not reflect the kind of extreme abuse and deprivation
found in other cases. See, e.g., Wiggins v. Smith, 539 U.S. 510, 535 (2003) (petitioner
“suffered physical torment, sexual molestation, and repeated rape” during childhood);
Sowell v. Anderson, 663 F.3d 783, 792 (6th Cir. 2011) (petitioner’s infant brother died
of starvation; his father repeatedly beat him and sexually molested his sister, threatening
to burn her alive if she reported it; he and his siblings were bitten by rats and infected
with worms); Foust v. Houk, 655 F.3d 524, 539–44 (6th Cir. 2011) (petitioner lived in
a home with “uninhabitable living conditions,” including feces smeared on the wall,
vomit on the floor, piles of garbage and dirty laundry stacked throughout the home, and
insect and rodent infestation; he and his siblings regularly suffered brutal beatings; his
brothers raped his sisters and threatened them with death). In cases involving childhood
experiences of a degree similar to Strouth’s, we have not found Strickland prejudice
stemming from an attorney’s failure to introduce the evidence at sentencing. See, e.g.,
West v. Bell, 550 F.3d 542, 556 (6th Cir. 2008); Owens v. Guida, 549 F.3d 399, 414 (6th
Cir. 2008). That is particularly true when, as was the case here, “the brutality” of the
murder “would have completely overwhelmed” any mitigation evidence stemming from
a difficult childhood. Tibbets v. Bradshaw, 633 F.3d 436, 445 (6th Cir. 2011). The state
courts reasonably rejected this claim.

3. Prior criminal history. Strouth argues his attorney should have presented
evidence that his prior criminal history was not as severe as the State’s evidence led the
jury to believe. But, as the Court of Criminal Appeals recognized, that is beside the
point because the jury rejected the State’s request to find Strouth’s criminal history to
be an aggravating factor at sentencing. Strouth II, 755 S.W.2d at 827. The only valid
No. 08-6116 Strouth v. Colson Page 10

remaining aggravating factor—that the murder was heinous, atrocious or cruel—has
nothing to do with Strouth’s criminal history. A defendant cannot suffer prejudice from
his attorney’s success in preventing evidence from being used as an aggravating factor
or from his failure to put on more evidence of this ilk when it has nothing to do with the
remaining aggravating factor.

4. Youth. Strouth argues that his attorney should have emphasized his relative
youth as a mitigating factor. In rejecting the claim, the Tennessee Supreme Court held
that the theory would not have changed matters:

The fact that Strouth was nineteen at the time of the killing carries no
great mitigation weight since the record reflects that Strouth had been
living independent of his parents, traveling routinely between Tennessee
and North Carolina, and committing crimes as a juvenile. This is not the
picture of a dependent teenager, nor does it demonstrate an innocent
young man whose inexperience in criminal matters may have led him
into an unlawful situation.

Strouth IV, 999 S.W.2d at 767. Strouth cites no Supreme Court case that contradicts this
analysis or that the Tennessee court unreasonably applied. Nor can we think of one.
The claim fails.

C.

Strouth argues the trial court erred in permitting the State to introduce evidence
at the penalty phase that reflected badly on his character but was not linked to any
aggravating or mitigating circumstance. The State responds that the claim is
procedurally defaulted because Strouth failed to raise it on direct appeal. We disagree.
A claim is not procedurally defaulted for federal habeas purposes where the most recent
state court opinion addressing the claim reaches the merits rather than invoking a
procedural bar. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991). The Tennessee
Court of Criminal Appeals discussed whether Strouth’s claim was procedurally barred,
it is true. But the court declined to resolve the question, reaching the merits instead. See
Strouth II, 755 S.W.2d at 829–30. We must do the same.
No. 08-6116 Strouth v. Colson Page 11

In rejecting the claim on the merits, the Court of Criminal Appeals concluded
that, although it “may have been error to allow testimony about Strouth’s boasts of
criminal activity and about his juvenile record,” the error was “not of such magnitude
that it requires reversal.” Id. at 830. Any error was one of state evidence law. It would
give rise to a federal constitutional claim only if the state court based its death sentence
on “factors . . . totally irrelevant to the sentencing process” in violation of the Eighth
Amendment, Johnson v. Mississippi, 486 U.S. 578, 585 (1988), or if the error “was so
pervasive as to have denied [Strouth] a fundamentally fair trial,” in violation of the Due
Process Clause of the Fourteenth Amendment, Apanovitch v. Houk, 466 F.3d 460, 487
(6th Cir. 2006). The alleged error did neither. The Court of Criminal Appeals
emphasized that “the jury found two aggravating circumstances related to the crime itself
and no mitigating circumstance to counterbalance them.” Strouth II, 755 S.W.2d at 830.
The evidence the jury considered—of relatively minor crimes Strouth had committed in
the past and implausible boasts of criminal activity—does not call its verdict into
question. See Banks v. Dretke, 540 U.S. 668, 700–01 (2004).

D.

Strouth argues the prosecution committed misconduct during the penalty phase
of his trial when it (1) emphasized the death penalty’s deterrent effect, (2) suggested to
the jury the law required a death sentence and (3) told the jury that “no one is asking you
to kill anyone.” Br. at 126–33. Strouth suggests AEDPA does not apply because the
state courts failed to resolve these claims on the merits. Not true: the state courts
resolved each claim on the merits. See Strouth I, 620 S.W.2d at 472–73; Strouth II, 755
S.W.2d at 832; Strouth III, 1997 WL 90636, at *7.

Strouth invokes Caldwell v. Mississippi, which overturned a death sentence after
the prosecutor led the jury to believe that the final decision whether to condemn the
defendant rested with the state supreme court. 472 U.S. 320, 323 (1985). Caldwell does
not apply retroactively to cases on collateral review. See Sawyer v. Smith, 497 U.S. 227,
245 (1990). But even if it did, the Court of Criminal Appeals reasonably concluded that
Caldwell “addresses a different type of argument” and any error “was of a minor nature
No. 08-6116 Strouth v. Colson Page 12

and harmless beyond a reasonable doubt.” Strouth II, 755 S.W.2d at 832; see Fry v.
Pliler, 551 U.S. 112, 121–22 (2007). That is particularly so given the other parts of the
prosecution’s closing argument that emphasized the importance of the jury’s role in the
process. See Strouth App’x at 1420.

Strouth’s other prosecutorial-misconduct claims—that the State wrongfully
emphasized deterrence and suggested the law required a death sentence—fare no better.
The Tennessee Supreme Court evaluated the prosecution’s closing argument
and—reasonably in our view—found it to be “within the bounds of reason.” Strouth I,
620 S.W.2d at 473; see also Strouth III, 1997 WL 90636, at *7. Prosecutorial
misconduct not linked to a constitutional guarantee violates the Due Process Clause only
if it renders the defendant’s trial fundamentally unfair. Donnelly v. DeChristoforo, 416
U.S. 637, 645 (1974). That did not happen. A prosecutor may refer to the policy
rationales behind a State’s decision to make the death penalty available. See Irick v.
Bell, 565 F.3d 315, 325 (6th Cir. 2009). And a prosecutor has no less right to discuss
a jury’s duty to impose the death penalty if legally warranted than a defense counsel has
the right to discuss a jury’s duty to acquit (or give a life sentence) if legally warranted.
See Hicks v. Collins, 384 F.3d 204, 219 (6th Cir. 2004); Tenn. Code Ann. § 39-13-
204(f)–(g).

E.

Strouth argues his death sentence must be reversed because the one remaining
valid aggravating circumstance the jury found—that his murder “was especially heinous,
atrocious, or cruel in that it involved torture and depravity of mind,” Strouth I, 620
S.W.2d at 469—is unconstitutionally vague. See Abdur’Rahman v. Bell, 226 F.3d 696,
709–11 (6th Cir. 2000). But the Tennessee Supreme Court has adopted a narrowing
construction that cures the constitutional defect, holding that this aggravating
circumstance is directed to “the conscienceless or pitiless act of a defendant which is
unnecessarily tortuous to the victim, or evinces a depraved state of mind.” Strouth IV,
999 S.W.2d at 766.
No. 08-6116 Strouth v. Colson Page 13

These new adjectives add little, Strouth responds, as they too are
“unconstitutionally vague.” Br. at 142. One problem with this argument is that the
Supreme Court has approved Tennessee’s narrowing construction against a similar
vagueness challenge. See Bell v. Cone, 543 U.S. 447, 455–57 (2005). Another problem,
indeed a worse problem, is that the Court invoked Strouth’s case in doing so, explaining
that the Tennessee Supreme Court permissibly adopted a narrowing construction of the
law in his appeal. Id. at 457. All of this makes it exceedingly difficult to maintain that
the Tennessee courts unreasonably applied, much less contradicted, decisions of the
United States Supreme Court.

F.

Strouth argues the state trial court violated due process when it excluded expert
statistical testimony on the deterrent effect of the death penalty. Strouth invokes two
cases to support his argument, but neither one gets the job done. In Gardner v. Florida,
the Court reversed a death sentence based in part on confidential information in a
presentence report not accessible by the defendant. 430 U.S. 349, 351 (1977) (plurality
opinion). Strouth likens his case to Gardner in that the trial court allowed the
prosecution in closing to highlight the deterrent effect of the death penalty but denied
him the right to present statistical evidence on the same point. The comparison is inapt.
The prosecution in this case did not seek to use confidential evidence or indeed any
evidence at all to make this point; it simply mentioned deterrence in open court during
a closing argument. Nothing prevented Strouth’s attorney, during his closing argument,
from arguing that the death penalty has little or no deterrent effect. Strouth and the State
shared equal footing in what the court allowed, and did not allow, them to do.

As for the other case, Lockett v. Ohio, 438 U.S. 586 (1978), it allows a defendant
to introduce in mitigation “any aspect of a defendant’s character or record and any of
the circumstances of the offense that the defendant proffers as a basis for a sentence less
than death.” Id. at 604 (plurality opinion). Statistical evidence about the deterrent effect
of the death penalty does not fit this description. It has nothing to do with the
“defendant’s character, prior record, or the circumstances of his offense.” See id. at
No. 08-6116 Strouth v. Colson Page 14

604–05 n.12. We see no error in the state courts’ resolution of this issue, permitting both
sides to discuss deterrence in general terms during closing argument but not permitting
either to introduce evidence on the point. A defendant has no constitutional right to
present evidence on any topic that might arise at closing. See Wright v. Bell, 619 F.3d
586, 599–601 (6th Cir. 2010).

G.

Strouth argues the State violated Brady v. Maryland, 373 U.S. 83 (1963), when
it failed to give the defense evidence that (1) Jeffrey Dicks or someone else killed
Strouth, and (2) witnesses against Strouth were biased or coerced. The Court of
Criminal Appeals twice held that this evidence is neither favorable to Strouth nor
material under Brady because there was no reasonable probability of a different result
even if Strouth had introduced the evidence at trial. Strouth II, 755 S.W.2d at 828;
Strouth III, 1997 WL 90636, at *9.

That conclusion is a reasonable one, as the evidence is equivocal or factually
dubious, or both. Here is the evidence: an eyewitness saw Dicks with fresh blood on
his shoe shortly after the time of the killing; a polygraph test showed that Dicks’s
answers were “indicative of deception”; Barbara Davis and Betty Dicks were not
credible witnesses, see supra at 6; and a police report “identified suspects who admitted
to killing [Keegan] in connection to a conspiracy by the Ku Klux Klan to kill
homosexuals.” Strouth Br. at 149–51. Evidence that Dicks, a co-defendant, had blood
on his shoes suggests only that he was at the scene of the murder, not that he was the one
who slit Keegan’s throat. Evidence that Dicks’s polygraph test indicated deception,
aside from being inadmissible in Tennessee courts, see Irick v. State, 973 S.W.2d 643,
652–53 (Tenn. Crim. App. 1998), suggests only that he sought to conceal his
involvement in the crime, hardly unusual behavior for a co-defendant, not that he played
a more central role in the crime than Strouth did. The “allegations about Barbara Davis
and Betty Dicks were not supported by the record,” and at any rate were not material.
Strouth II, 755 S.W.2d at 828. And the evidence of suspects other than Strouth and
Dicks was already known to Strouth’s attorney at the time of trial and was too vague and
No. 08-6116 Strouth v. Colson Page 15

unsupported to be of use. Strouth III, 1997 WL 90636, at *8. When considered in
tandem with the strong evidence of Strouth’s guilt and the strong aggravating
circumstance—slitting the throat of an unconscious seventy-year-old man—this
evidence had little prospect of changing the outcome of Strouth’s trial. See Montgomery
v. Bobby, 654 F.3d 668, 679–80 & n.4 (6th Cir. 2011) (en banc).

H.

Strouth argues his death sentence runs afoul of the Eighth (and Fourteenth)
Amendment because no state court ever found beyond a reasonable doubt that he killed,
attempted to kill or intended to kill Keegan. See Enmund v. Florida, 458 U.S. 782, 801
(1982). The problem is that the Court of Criminal Appeals explicitly held that Strouth’s
involvement in Keegan’s murder satisfied the Enmund criteria. See Strouth II, 755
S.W.2d at 829. That is all the Constitution requires. Cabana v. Bullock, 474 U.S. 376,
386–87 (1986), abrogated on other grounds by Pope v. Illinois, 481 U.S. 497, 503 n.7
(1987).

Strouth resists this conclusion on two grounds. First, he takes issue with the
failure of the Court of Criminal Appeals to discuss certain evidence Strouth considers
favorable to his cause. But Enmund merely forbids the imposition of a death sentence
on a defendant without a court making the necessary finding of personal involvement in
the murder or intent to kill; it does not obligate a state court to discuss the evidence
before it in any particular way. See Cabana, 474 U.S. at 386–88. Second, Strouth
argues the state court must make the Enmund finding beyond a reasonable doubt. But
the Supreme Court has never said the Enmund finding must be made beyond a
reasonable doubt. If anything, the “considerable freedom” a State retains in
“structur[ing] its capital sentencing system as it sees fit” suggests the Constitution
requires no particular standard of proof. Id. at 386–87. At the least, that conclusion
reasonably applies Supreme Court precedent.

I.
No. 08-6116 Strouth v. Colson Page 16

Strouth argues the guilt-phase jury instructions implied the jury could convict
him if it had “a moral certainty,” as opposed to certainty beyond a reasonable doubt, he
committed the crime. Br. at 160. This claim is procedurally defaulted. Strouth sought
to raise it in his second state collateral-review proceeding, but the Court of Criminal
Appeals deemed it “waived for failure of appellant’s counsel to raise this issue in a prior
proceeding.” Strouth III, 1997 WL 90636, at *10. Strouth makes no attempt to
demonstrate cause for, and prejudice from, this procedural default, forfeiting the claim.
He does argue that denying him review would amount to a fundamental miscarriage of
justice, entitling him to review of an otherwise defaulted claim, but he points to no
evidence that comes remotely close to establishing that this is the “extraordinary case”
where “a constitutional violation has probably resulted in the conviction of one who is
actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986). Even if it were not
defaulted, the claim is transparently meritless. The trial court instructed the jury that “all
elements of the offenses and any and all crimes required to be proved by the State must
be proved beyond a reasonable doubt.” Strouth App’x at 1392. That is a required
instruction, not an improper one.

J.

Strouth argues that the prosecution, during the guilt-phase closing argument,
improperly commented on Strouth’s decision not to testify when it told the jury that
there was no eyewitness testimony about the murder because the victim was dead. This
argument is procedurally defaulted because Strouth failed to present it to the Tennessee
courts. See Pudelski v. Wilson, 576 F.3d 595, 605 (6th Cir. 2009). Strouth argued in
state court that during voir dire the prosecution improperly commented on his right to
remain silent, but he said nothing about closing argument. Strouth I, 620 S.W.2d at
471–72. Once more, even if it were not defaulted, the claim lacks merit. The
prosecution’s discussion of the lack of eyewitnesses to the crime was not a convoluted
attempt to call attention to Strouth’s decision not to testify; it was an effort to respond
to a weakness in the State’s case—that no one saw Strouth kill Keegan. The
Constitution does not prohibit this comment.
No. 08-6116 Strouth v. Colson Page 17

IV.

For these reasons, we affirm.