concurring in part and dissenting in part.
A.
My initial thoughts concern Part III of the majority’s opinion. The Commonwealth argues, and the majority seems to agree, that the Supreme Court’s decision in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), is entirely inapplicable to Foley’s habeas petition, because it was published well after the Kentucky Supreme Court ruled on his Strickland claim of ineffective assistance of counsel. See Maj. Op. at 385-87 (“[0]ur review will ignore interpretations of *397Strickland by the Supreme Court in cases such as ... Wiggins D. Ct. Op. at 390 (holding that Wiggins “does not impact the analysis in [Foley’s] case”). Wiggins must be disregarded, the majority contends, because the Supreme Court has instructed lower federal courts sitting in habeas that “clearly established Federal law” under 28 U.S.C. § 2254(d)(1) is “the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (emphasis added).
Because Wiggins only clarified Strickland, however, it in no way alters the “governing legal principles” set forth in that case, principles with which we are quite familiar. Thus there is no reason why we should not draw from Wiggins, as well as Strickland, in analyzing the instant case. Precisely this point was made by a recent panel of this circuit in Slaughter v. Parker, 450 F.3d 224 (6th Cir.2006):
A careful reading of Wiggins ... reveals that the [Supreme] Court looked to Strickland while analyzing whether trial counsel performed an adequate investigation in preparing for the penalty phase of Wiggins’s trial, which occurred in October of 1989. See Hamblin [v. Mitchell], 354 F.3d at 487 (“[t]he Court in Wiggins clearly holds ... that it is not making ‘new law1 on the ineffective assistance of counsel either in Wiggins or in the earlier case on which it relied for its standards, Williams v. Taylor []”). Hence, we may look to Wiggins to decide whether the Supreme Court of Kentucky unreasonably applied Supreme Court precedent.
450 F.3d at 233 n. 2. The denial of Slaughter’s ineffective assistance claims was affirmed by the Kentucky Supreme Court in April 1999, id. at 231, whereas the denial of Foley’s ineffective assistance claims was affirmed by the Kentucky Supreme Court after Slaughter’s, in March 2000. Maj. Op. at 384 (citing Foley v. Commonwealth, 17 S.W.3d 378 (Ky.2000)). In light of Slaughter, therefore, it seems to me that we may properly look to Wiggins for guidance in this case, even under deferential AEDPA § 2254(d)(1) review.
The Kentucky Supreme Court found that because there was no evidence of Foley having a mental defect, and because much of the testimony presented at the Rule 11.42 hearing pointed not so much to mitigating factors but to Foley’s propensity for violence, “[t]he decision of counsel not to conduct additional investigation into defendant’s background in search of mitigating circumstances can be supported by reasonable professional judgment.” Foley, 17 S.W.3d at 885. The district court, in denying Foley’s federal habeas claims, buttressed the Kentucky court’s decision by pointing out that counsel “actively engaged” Foley and his family regarding mitigation evidence, only to learn that it was “clear” Foley did not want his family to testify. D. Ct. Op. at 11.
This description blatantly overstates the level of investigation that counsel actually conducted. When asked during the Rule 11.42 hearing whether Foley had been reluctant to put on mitigation evidence, counsel responded: “Yeah, I think what he said was something to the effect that he didn’t want to put his family through all that. That’s my best recollection of it.” Especially in light of the fact that Foley’s mother wanted to testify at his trial and provide some potentially mitigating evidence, counsel’s own testimony makes it far from “clear” that he was “actively engaged” in discussing the pros and cons of mitigation evidence with Foley, or that he pressed Foley further when Foley expressed some reluctance to have family members testify. *398I therefore cannot agree that the Kentucky Supreme Court reasonably applied the tenets of Strickland in concluding that Foley’s counsel’s performance was not deficient with respect to investigation of mitigation evidence. See Wiggins, 539 U.S. at 533, 123 S.Ct. 2527 (“[SJtrategic choices made after less than complete investigation are reasonable only to the extent that reasonable professional judgments support the limitations on investigation. A decision not to investigate thus must be directly assessed for reasonableness in all the circumstances.”) (citations and internal quotation marks omitted) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052).
I concur in Part III, however, because I believe Foley’s mitigation claim falters on Strickland’s second prong: prejudice. What distinguishes Foley’s mitigation claim from others that have been much stronger is that even when given the opportunity to investigate thoroughly in preparation for the Rule 11.42 hearing, Foley’s state appellate counsel was unable to obtain any decent mitigating evidence. For example, if there really were something to Foley’s argument that the testimony of his mother would have shown that he had suffered life-altering head injuries, that he had mental problems, and that his violent grandfather had caused him to know nothing but violence, one would expect there to have been at least some independent corroboration of these inferences, from a doctor, from a psychologist, indeed from anyone that appellate counsel could have drummed up. Cf. Wiggins, 539 U.S. at 523-28, 123 S.Ct. 2527 (presenting on collateral review evidence of severe abuse as a child, sexual torment and rape in foster care, and diminished mental capacities); Williams v. Taylor, 529 U.S. 362, 395, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (presenting on collateral review extensive records graphically describing petitioner’s “nightmarish” childhood); Williams v. Anderson, 460 F.3d 789, 804-05 (6th Cir.2006) (presenting on collateral review evidence that petitioner’s mother was an alcoholic who neglected and beat him, that petitioner was dependent on cocaine at the time of the murder, and that petitioner suffers from a severe personality disorder, as documented by a clinical psychologist). I therefore cannot conclude that the Kentucky Supreme Court’s ultimate resolution of Foley’s ineffective assistance claim was objectively unreasonable in light of Strickland.
B.
My above analysis of the Strickland performance prong is nothing new inasmuch as it follows from a prior panel’s analysis in Slaughter. I concede, however, that this Court has been anything but consistent in its explication and application of 28 U.S.C. § 2254(d)(1) in habeas cases, in particular with respect to the use of Supreme Court (or circuit) precedent that postdates a given state court ruling on the merits. Compare Slaughter, 450 F.3d at 233 n. 2 (discussed above) with Keith v. Mitchell, 455 F.3d 662, 670 (6th Cir.2006) (filed less than a month after Slaughter, yet concluding that in an appeal “governed by AEDPA’s standard of review, only Supreme Court cases already issued at the time of the relevant state court decision can offer guidance regarding whether counsel’s performance was ineffective”). Such uncertainty counsels in favor of en banc review of the issue, lest we unwittingly amass a grab bag of different points of departure under § 2254(d)(1). For judges to disagree about how a given precedent may apply to a petitioner’s claim based on its factual similarity or dissimilarity is one thing; this is of course the very core of judicial reasoning. Yet for judges to disagree about which precedents may be used in the first instance, based not on their *399facts but on the exact date they were filed, is quite another.
I for one continue to believe that this Court’s inflexible reading of § 2254(d)(l)’s unreasonable application prong “offends the judicial power under Article III.” Davis v. Straub, 445 F.3d 908, 910 (6th Cir.2006) (Martin, J., dissenting from denial of rehearing en banc). Some of my colleagues have similarly pointed out that to define Supreme Court precedent in its narrowest sense renders § 2254(d)(1) unconstitutional “by preventing our Court from giving our independent judgment on the legal effect of the evidence before us and by leaving us ‘no adjudicatory function to perform.’ ” Davis v. Straub, 430 F.3d 281, 297 (6th Cir.2005) (Merritt, J., dissenting) (quoting United States v. Klein, 13 Wall. 128, 80 U.S. 128, 146-47, 20 L.Ed. 519 (1871)). Today’s majority cannot be said to have performed no adjudicatory function, for it of course has adjudicated Foley’s ineffective assistance claim, and done so in convincing fashion, in light of Strickland. Yet by freezing in time the “governing legal principles” — i.e., the “clearly established Federal law” — before the Kentucky Supreme Court when it reviewed Foley’s claims, and by robotically refusing to take guidance from any cases after this date (such as Wiggins), the majority greatly constricts this very function. There is a difference between cases that present new law and those that present nuanced law: our ability to make use of the former on collateral review may well be properly restricted by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), whereas our ability to make use of the latter seems unconstitutionally restricted by an overly narrow reading of § 2254(d)(1).
The circuit courts, as well as the Supreme Court, seem to have put the cart before the horse by “tacitly assuming” the constitutionality of AEDPA in general and § 2254(d)(1) in particular. Irons v. Carey, 479 F.3d 658, 667-68 (9th Cir.2007) (Noo-nan, J., concurring). And yet, as the Ninth Circuit has recently pointed out, it is this more fundamental question that deserves our attention, hopefully sooner rather than later:
In our system of law where precedent prevails and is developed, AEDPA denies the judge the use of circuit precedent, denies development of Supreme Court and circuit precedent, denies the deference due the penumbra and emanations of precedent, and even denies the courts the power to follow the law as now determined by the Supreme Court — the precedent to be applied must have been in existence at the earlier moment when a state decision occurred. A more blinkered concept of law cannot be imagined — law, particularly constitutional law — is treated as what once was the law. The development of doctrine is despised. That despisal is a direct legislative interference in the independence of the judiciary.
Id. at 666; see also id. at 670 (Reinhardt, J., concurring) (“Having granted the courts the authority to review state convictions under our habeas powers, it seems to me inconsistent with our fundamental obligations as judges to require us, except in unusual or exceptional circumstances, to rule for the state regardless of whether it violated the Constitution. Such a mandate appears to me to tell us how to decide a case.”). Should we continue to read § 2254(d)(1) so narrowly, so as to allow only snapshots of “what once was the law,” or should we consider this provision more broadly, so as to allow us our rightful room to interpret the law within Article III? Much like some members of the Ninth Circuit have done, I would encourage my own colleagues to at least consider tackling this constitutional question.
*400C.
I now turn to Parts V and VI of the majority opinion, with which I cannot similarly concur. In my mind, the analysis of Foley’s motion for change of venue (discussed in Part V) and his motion to strike ten jurors for cause (discussed in Part VI) are fully interrelated, and thus I will discuss them together.
The majority is correct that Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), supplies the fulcrum by which we must judge the reasonability of the Kentucky Supreme Court’s decision. In Irvin, the Supreme Court reversed a state-issued death sentence on grounds that prejudicial pretrial publicity should have mandated a change of venue, not just to a county adjoining the county in which the murders had occurred, but to a county geographically far enough removed to be untainted by the publicity. The Court noted that:
One of the rightful boasts of Western civilization is that the State has the burden of establishing guilt solely on the basis of evidence produced in court and under circumstances assuring an accused all the safeguards of a fair procedure. These rudimentary conditions for determining guilt are inevitably wanting if the jury which is to sit in judgment on a fellow human being comes to its task with its mind ineradicably poisoned against him.
366 U.S. at 729, 81 S.Ct. 1639 (Frankfurter, J., concurring). To this broad premise, however, was added a qualification reflecting the reality of criminal trials in the modern era:
It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
Id. at 722-23, 81 S.Ct. 1639; see also Patton v. Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984) (noting that the critical question is: “did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror’s protestation of impartiality have been believed[?j”). Irvin forces courts to engage in a balancing act, to be sure, but in Foley’s case I cannot agree that the state courts’ balancing was reasonable.
The state-court review of Foley’s change of venue claim was highly contested, with three members of the Kentucky high court writing in dissent against a four-member majority. See Foley, 942 S.W.2d at 890-91. For example, the dissenters disagreed with the majority’s gloss on the pretrial media coverage, pointing out that “[n]ews-paper coverage between August of 1991 and the trial date was comprehensive and repetitive. The details of the murders were repeated over and over.” Id. at 890. They also noted that Foley was the subject of several editorials in the local and regional newspapers, editorials which even the majority had conceded were inflammatory. Furthermore, the news at the time was flush with reports of other crimes that Foley had allegedly committed. Newspa*401per articles indicated that, but for deals with the government, Foley would have been serving jail time for other crimes at the time of the Vaughn murders — the implication being that had the government not brokered a plea deal with such an inveterate criminal, the Vaughn murders could have been avoided. Most damning for Foley, however, was the concomitant news reporting of the four other murders with which he was charged and for which state prosecutors were seeking the death penalty. These murders were even more violent and seemingly random than those of the Vaughn brothers, the bodies of the four victims having been hidden for several years in a septic tank and only discovered in 1991, the same year the bodies of the Vaughn brothers were found in Sinking Creek. In fact, Foley’s motion for a change of venue as to this quadruple-murder trial was granted, and the trial was eventually held in Madison County in 1994, the year following his double-murder Laurel County trial.
In denying Foley’s change of venue claim on federal habeas, the district court likened his situation to that of the petitioner in DeLisle v. Rivers, 161 F.3d 370 (6th Cir.1998) (en banc), in which a majority of this Court rejected petitioner DeLisle’s Irvin-based change of venue arguments. The-PeLisle majority noted that because fewer than 15% of the jury venire had any fixed opinion about DeLisle’s guilt, in contrast to the 90% in Irvin, that was too little for DeLisle to have properly received a change of venue on grounds of “presumed prejudice.” Id. at 383. I respectfully must disagree with the district court’s reliance on DeLisle.
First of all, Foley has a stronger claim of presumed prejudice than did DeLisle, because the Kentucky Supreme Court makes clear that at least 33% of the jury venire “either believed [Foley] was guilty or did not presume him to be innocent.” To be sure, this is not the 90% in Irvin, but to have fully one-third of the jury venire so infected is by no means insubstantial. Cf. Murphy v. Florida, 421 U.S. 794, 803, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975).
Secondly, and more importantly, Foley has a much stronger “actual prejudice” claim than did DeLisle, because Foley can actually point to the voir dire and show that ten jurors whom he asked the trial judge to strike for cause were retained. This fact is in stark contrast to that which we deemed critical in DeLisle: “[WJhat is of greatest importance [is that] none of those actually seated on DeLisle’s jury was challenged for cause, and none expressed a fixed opinion about DeLisle’s guilt.” 161 F.3d at 383 (emphasis in original); see also Nevers v. Killinger, 169 F.3d 352, 367 (6th Cir.1999) (rejecting petitioner’s claim at least in part on grounds that only two jurors eventually seated were challenged for cause). Thus the record of voir dire in Foley’s case becomes critical. See Montgomery v. Commonwealth, 819 S.W.2d 713, 716 (Ky.1991) (“One of the substantial considerations in affirming the trial court on a change of venue issue is the trial judge’s decision to permit a broad voir dire to identify prospective jurors so affected by pretrial publicity that they should be excused for cause.”); Nevers, 169 F.3d at 363 (concluding that “pretrial publicity that would inherently prejudice the jury pool can be discerned only by reviewing both the extent and nature of the publicity and the responses of the prospective jurors in voir dire”) (emphasis in original); Murphy, 421 U.S. at 803, 95 S.Ct. 2031 (concluding that some .bias on .the part of the jury venire does not “impeach the indifference” of any individual jurors who “displayed no animus on their own”).
*402Foley contends now, as he did on direct review before the Kentucky Supreme Court, that voir dire revealed implied bias in ten prospective jurors, all but one of whom were ultimately empaneled. The majority of the Kentucky high court compared Foley’s case to that of Skaggs v. Commonwealth, 694 S.W.2d 672 (Ky.1985), noting that the pretrial publicity in Skaggs was far more inflammatory than here, and still it was found to have dissipated over time and thus not to have been of great influence on prospective jurors. Foley, 942 S.W.2d at 884. The Kentucky Supreme Court majority indicated that it was being guided by the United States Supreme Court’s decision in Mu’Min v. Virginia, 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991), in which the Court stated:
[0]ur own cases have stressed the wide discretion granted to the trial court in conducting voir dire in the area of pretrial publicity and in other areas of inquiry that might tend to show juror bias. Particularly with respect to pretrial publicity, we think this primary reliance on the judgment of the trial court makes good sense. The judge of that court sits in the locale where the publicity is said to have had its effect and brings to his evaluation of any such claim his own perception of the depth and extent of news stories that might influence a juror. The trial court, of course, does not impute his own perceptions to the jurors .who are being examined, but these perceptions should be of assistance to it in deciding how detailed an inquiry to make of the members of the jury venire.
500 U.S. at 427, 111 S.Ct. 1899.
According to the state trial judge, all of the jurors were ultimately rehabilitated merely by saying that they would do their “human best” to base a verdict solely on evidence presented in open court. Foley, 942 S.W.2d at 882 n. 2. This would seem to satisfy the requirement that they swear to be able to “set aside what they had heard about the case and decide it based upon the evidence presented in court.” Maj. Op. at 11 (citing Patton, 467 U.S. at 1036, 104 S.Ct. 2885). But Patton requires a juror challenged for cause to do more than simply swear his impartiality; rather, Patton requires that the trial court reasonably believe that juror’s “protestation of impartiality.” With this in mind, here is a sampling of what each of the ten jurors said on voir dire, as characterized by the Kentucky Supreme Court majority, not the dissent:
As to Juror A: “When asked her feelings about the killings, she related that she knew others who felt he was probably guilty and that she felt, the same .... She knew Appellant was accused of four other murders.”
As to Juror B: “He couldn’t recollect if he had ever said that Appellant was guilty. He didn’t think that he had made such a statement, but he could not say for sure.”
As to Juror C: “[She] heard people remark that the trial would have to be moved because many in Laurel County had already formed an opinion. She had read about the Vaughn killings two years ago and was aware that Appellant was charged with other killings.”
As to Juror D: “He knew that Appellant had been arrested for murder and was suspected of other killings ... [He] admitted under questioning from defense counsel that most of the people in the community at that time believed that Appellant had killed both Vaughn brothers.”
As to Juror E: “[He] could remember rumors of bodies found in a septic tank.”
As to Juror F: “[He] recalled the [news]paper referring to Appellant as an *403FBI informant who had been suspected of a previous killing.”
As to Juror G: “[She] remembered reading that Appellant was an FBI informant. Upon direct questioning by-defense counsel, she stated that she was not sure if she could remove all information from her mind during the trial and deliberations.”
As to Juror H: “She knew that Appellant was accused of killing four other persons and that four bodies were found in a septic tank.”
As to Juror I: “She could remember that there was something about the bodies of four people from Ohio being found in a septic tank.”
As to Juror J (the eventual foreman): “[Foley’s] defense attorney not only had represented family members of Juror J but also had opposed his family in other matters.... When questioned concerning whether Appellant had any obligation to produce evidence to prove himself innocent, Juror J stated that he wanted evidence from Appellant to prove his innocence.”
Foley, 942 S.W.2d at 882-83 n. 2-11 (emphasis added).1
Having reviewed these and other voir dire statements, the dissenters on the Kentucky Supreme Court concluded that not only had the trial court disregarded relevant United States Supreme Court precedent in not striking some of the jurors for cause, it has disregarded the Commonwealth’s own precedents as well:
It makes no difference that the jurors claimed they could give the defendants a fair trial. As we held in Pennington v. Commonwealth, “[i]t is the probability of bias or prejudice that is determinative in ruling on a challenge for cause;”-and in Tayloe v. Commonwealth, “the conditions were such that their connections would probably subconsciously affect their decision of the case adversely, to the defendants”; and in Marsch v. Commonwealth, “their statements, given in response to leading questions, that they would disregard all previous information, opinions and relationships should not have been taken at face value.” Pennington, Tayloe, and Marsch stand for the principle that objective bias renders a juror legally partial, despite his claim of impartiality.
Id. at 892 (internal citing references omitted).
This is exactly my point as well. Accordingly, I believe the district court gave short shrift to the actual, un-rehabilitated prejudice that many of Foley’s jurors possessed. Foley’s case is unique in that most of the seated jurors — -not simply a majority of those on the venire — were aware not only of the circumstances surrounding the two murders on which they were to pass judgment, but also of the four other murders with which Foley was accused. In a small, rural county such as Laurel, it strains credulity to think that facts and rumors swirling about Foley’s gruesome- quadruple murder would not have significantly tainted his double-murder jury. See Nebraska Press Assoc. v. Stuart, 427 U.S. 539, 599 n. 22, 96 S.Ct. 2791, 49 L.Ed.2d 683 (noting that “the smaller the community, the more likely there will be a need for a change of venue ... when a heinous crime is committed”). This was borne out by the number of potential jurors dismissed immediately from the venire, as well as by the voir dire statements of jurors whom Foley chal*404lenged for cause but who were ultimately seated by the trial judge. I cannot deem “reasonable” the Kentucky Supreme Court’s contention that these jurors had been “rehabilitated” on voir dire.2
In sum, I believe that the state courts of Kentucky did not merely apply Irvin incorrectly in Foley’s case; rather, they applied it unreasonably. Such unreasonable application of Supreme Court precedent mandates a grant of the writ on the intertwined change-of-venue and motion-to-strike issues. Accordingly, I respectfully dissent as to Parts V and VI of the majority opinion.
. Here I am quoting the words of the Kentucky Supreme Court, not the words of the jurors themselves.
. The mere fact that there was a strong dissent in Foley’s state appeal does not of course mean that the Kentucky Supreme Court majority was unreasonable in its application of Irvin. The dissenters do make several good points, however, and these points align with my own determination that the majority was unreasonable.