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HODGE v. HAEBERLIN
579 F.3d 627 (2009)
United States Court of Appeals, Sixth Circuit.
Argued: October 21, 2008.
Nonetheless, Hodge's claim fails de novo review. We cannot say that counsel's efforts in this area fell below the requirements set forth in cases dealing with ineffective assistance of counsel at the penalty phase or that Hodge was prejudiced. The record indicates that, in addition to extending considerable efforts to secure Charvat's participation, counsel presented substantial other evidence in mitigation. Although counsel who fails to prepare and present mitigating evidence may be found ineffective, no such failure occurred here. Despite the fact that Charvat was not present at trial, she conducted substantial investigation and strategic preparation for the mitigation phase beforehand. Hodge's counsel presented thirteen mitigation witnesses who testified about Hodge's troubled past, including the way family members and the penal system unjustly harmed him. Hodge's situation is very different from those in which courts have previously found ineffective assistance of counsel at sentencing. We have recognized that "counsel's failure to make a reasonable investigation of a defendant's psychiatric history and family background, and to present mitigating evidence to the jury at sentencing, can constitute ineffective assistance." Clark v. Mitchell,425 F.3d 270, 284 (6th Cir.2005) (citing Wiggins v. Smith,539 U.S. 510, 522-23, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). In Wiggins, the Supreme Court relied on counsel's failure to uncover and present voluminous mitigating evidence, such as evidence that during childhood the defendant suffered severe privation, physical torment, and repeated sexual molestation. 539 U.S. at 535, 123 S.Ct. 2527. There is no allegation here that Hodge's counsel failed to uncover or present any significant mitigating aspect of Hodge's situation or history. In Poindexter v. Mitchell,454 F.3d 564 (6th Cir.2006), counsel did not request medical, educational, or governmental records; did not consult with a mental health professional despite noticeable signs of defendant's mental illness; and did not consult a mitigation specialist who could have reconstructed the defendant's social history. Id. at 578-79. Here, by contrast, counsel made investigations with the help of a mitigation specialist and presented evidence about Hodge's family background, educational experience, and history with the correctional system. Moreover, Hodge does not demonstrate prejudice. The substantial preparations made and evidence presented
by Hodge's counsel, in addition to showing that counsel did not perform deficiently, make it unlikely that Hodge suffered prejudice from Charvat's absence. Additionally, Hodge's argument that Charvat could have presented a fuller, more cohesive account leading to a more favorable outcome basically ignores the strong aggravating evidence presented against him. The state presented only one penalty-phase witness, the custodian of Hodge's criminal records. She presented evidence of Hodge's previous criminal convictions, including his conviction and death sentence for capital murder. The jury found seven aggravating factors, when only one was necessary to impose the death penalty. Given the substantial evidence already presented in mitigation and the strength of the aggravating factors, it is unlikely that more mitigating evidence along the same lines would have caused the jury to strike a different balance. Prejudice is established in a capital case if there is a reasonable probability that, but for counsel's omissions, at least one juror would not have recommended the death penalty. See Wiggins, 539 U.S. at 536-37, 123 S.Ct. 2527; accord Poindexter, 454 F.3d at 580. There is no such probability here. 3. Failure to object Hodge raises several claims that his attorney failed to object to harmful evidence or prosecutorial argument, but none of these claims entitles Hodge to relief. Because the Kentucky Supreme Court determined on direct review that the evidence and arguments were not objectionable, we defer to the state-court's finding that Hodge did not suffer from ineffective assistance of counsel. Moreover, Hodge does not establish for purposes of de novo review that these omissions to object constituted unreasonable trial strategy or that he was prejudiced by counsel's actions. Because of the "numerous potentially objectionable events" that occur throughout trial, we have previously noted that "any single failure to object usually cannot be said to have been error unless the evidence sought is so prejudicial to a client that failure to object essentially defaults the case to the state. Otherwise, defense counsel must so consistently fail to use objections, despite numerous and clear reasons for doing so, that counsel's failure cannot reasonably have been said to have been part of a trial strategy or tactical choice." Lundgren v. Mitchell,440 F.3d 754, 774 (6th Cir.2006). None of the omissions claimed by Hodge rises to the level described in Lundgren, nor do they qualify when considered together as a whole. Hodge is not entitled to relief based on counsel's decision not to object to the emotional testimony of the victims' son. Bobby Morris testified to a number of relevant facts that set the scene for his parents' murders. He testified that although his parents were not rich, they had accumulated some money and items of value. He also testified that his father's practice of keeping large sums of cash in the house was so well-known in the community that people would stop by to cash checks when the bank was closed. Morris testified about his father's close acquaintance with members of the Epperson family and about having seen Roger Epperson and Hodge together in the weeks leading up to the murders. Morris's testimony about the layout of his parents' home, their living practices, and items they kept in the house established the context for understanding what happened on the night of the murders. The Kentucky Supreme Court held on direct review that Morris's testimony did not constitute impermissible "glorification" of the victims and that, in any case, the testimony did not prejudice Hodge. Hodge I, 17 S.W.3d at 847. Hodge was therefore precluded from establishing two of the elements
necessary for a successful collateral attack based on ineffective assistance of counsel. The state-court's decision not to grant Hodge relief is entitled to deference, because it is not contrary to, or an unreasonable application of, clearly established federal law.
1. Kentucky has since modified the way that it applies a procedural bar to ineffective assistance of counsel claims that are based on claims of error denied on direct appeal. See Leonard, 279 S.W.3d at 157-59. The Leonard court held, "While such an ineffective-assistance claim is certainly related to the direct error, it simply is not the same claim. And because it is not the same claim, the appellate resolution of an alleged direct error cannot serve as a procedural bar to a related claim of ineffective assistance of counsel." Id. at 158. Leonard appears to overrule Hodge II to the extent that Hodge II applied the previous procedural bar requirements. Id. at 159. However, the holding of Leonard in this regard does not apply retroactively, and it therefore appears that Hodge's conviction cannot now be challenged in state court on the basis of Leonard. Id. at 162. 2. The court noted that while the discovery order in question exceeded the trial court's authority, the order was valid and binding on the prosecution until overruled. Hodge I, 17 S.W.3d at 849.
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