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Willoughby v. Simpson

United States District Court, E.D. Kentucky, Central Division, Lexington

August 29, 2014

THOMAS L. SIMPSON, Warden, Kentucky State Penitentiary, Respondent.


DAVID L. BUNNING, District Judge.

This matter is before the Court on the petition of Mitchell Willoughby, by counsel, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

On July 22, 1983, a state-court jury found Willoughby guilty of three counts of first-degree murder for the deaths of Joe Norman, Joey Durrum and Jacqueline Greene. The jury recommended that Willoughby be sentenced to death for the murder of Durrum and Greene, and to life imprisonment for the murder of Norman. On August 31, 1983, the Fayette Circuit Court followed the recommendation of the jury and imposed the sentence of death accordingly. Willoughby is presently imprisoned in the Kentucky State Penitentiary as a result of his conviction and sentence.

In this § 2254 petition, Willoughby contends that he is being held in violation of the Constitution of the United States because of constitutional errors that occurred during his trial. Willoughby is not arguing that he is actually innocent of the crimes of conviction. Rather, he argues that his constitutional rights were violated by juror misconduct, confusing jury instructions, prosecutorial misconduct, and being deprived of effective assistance of counsel. For the following reasons, the Court will deny Willoughby's habeas petition.


A. Trial in Fayette Circuit Court

Willoughby, Leif Halvorsen and Susan Hutchens were indicted on March 7, 1983 by the Fayette County Grand Jury on three counts of murder and two counts of robbery in the first degree. Willoughby was also charged with being a persistent felony offender in the second degree, while Halvorsen and Hutchens were each charged with carrying a concealed weapon. Hutchens agreed to plead guilty to two counts of hindering prosecution, and subsequently testified at Willoughby and Halvorsen's joint trial before a jury in Fayette Circuit Court in the Commonwealth of Kentucky.

The Honorable Armand Angelucci, Fayette County Circuit Court Judge, presided over the trial. Willoughby was represented by Joe A. Jarrell, an attorney from the Fayette County Legal Aid office. The Kentucky Supreme Court has ably summarized the evidence presented at Willoughby's trial as follows:

The bodies of Joe Norman and Joey Durrum were found on the side of the Brooklyn Bridge on the Jessamine-Mercer County line. The body of Jacqueline Greene was found in the Kentucky River below the bridge. Each of the victims had been shot to death. David Warner, who lived on the Jessamine County side of the Brooklyn Bridge, became suspicious when he noticed a light blue Ford van and a dark pickup truck lurking at various points around the bridge. At one point, the pickup truck parked on the bridge, a person got out of the passenger side, and Warner heard a big splash. Forty-five minutes later, Warner heard a noise that sounded like a car hitting a guardrail or a sign. He looked out to see the blue van and the pickup truck speeding off across the bridge toward Lexington. Warner called the police.
When the police arrived, they found two of the victims on the side of the bridge, each bound with a blue-and-yellow rope that was attached to a heavy rock. The third victim was found in the river below the bridge, wrapped in a sheet that was also bound with a blue-and-yellow rope and attached to a heavy rock. A traffic sign near the bridge had been knocked over by a vehicle. It had paint smears on it and broken glass lying at its base.
Officer William Foekele testified that around 1:30 p.m., on January 13, he was on Loudon Avenue in Lexington, looking for a car involved in another investigation, when he noticed a blue Ford van stopped at 215 Loudon Avenue. He wrote down the van's license number. On the following day, police learned that two of the victims had lived in the house at 215 Loudon Avenue. A truck belonging to the third victim was found parked at the house. When police entered, they found blood at various places in the house.
Upon learning that a blue Ford van was seen in the area where the bodies were discovered, Officer Foekele suspected that it was the same vehicle which he had seen near the house at 215 Loudon the day before. A registration check revealed that the van was registered to Halvorsen. Foekele then went to Halvorsen's home but saw no vehicles in the driveway. A neighbor indicated that two men and a woman had just left in a blue pickup truck and would probably return shortly. Police staked out all routes to the house, located and cornered the truck, and demanded that its occupants exit. The driver, Mitchell, jumped out immediately. Halvorsen, after hesitating, slid out of the passenger side. The officers found a.38-caliber revolver where he had been sitting. As the officers approached the truck, the woman, Susan Hutchens, threw her hands up and said, "The gun's in my purse." A 9-millimeter pistol was found sticking out of her purse.
A ballistics expert positively identified several of the projectiles recovered from the victims' bodies as having come from the revolver and semi-automatic pistol found in the truck. Two 9-millimeter shell casings were additionally recovered at 215 Loudon. Fingerprints from both Willoughby and Hutchens were found on the 9-millimeter pistol. Hutchens' fingerprints were found on the refrigerator at 215 Loudon as well.
Also recovered from 215 Loudon, by the police, was a plastic blue-and-yellow rope identical to that found tied around the victims' bodies. Paint samples taken from Halvorsen's van matched the paint smears found on the highway sign near the bridge. A comparison between pieces of glass taken from a broken headlight on Halvorsen's van and pieces of broken headlight recovered from the base of the highway sign proved them to have come from the same headlight. Lastly, blood samples from Halvorsen's van were positively identified as having come from one of the victims.
At trial, Hutchens testified that in December 1982, she and Willoughby moved into the house at 215 Loudon, and Willoughby was employed by the victim, Joe Norman, to help him remodel the house. Willoughby and Hutchens moved out a month later when Norman refused to pay Willoughby for the work he had done.
Hutchens testified that on January 13 Willoughby and Halvorsen asked her to buy ammunition for their pistols. Later that day, she decided to go visit the victim, Jacqueline Greene, who lived at 215 Loudon with Joe Norman. When she arrived, Willoughby, Halvorsen, and Norman were standing in the driveway talking. Hutchens went into the house where Greene introduced her to the victim, Joey Durrum. Willoughby, Halvorsen, and
Norman then came inside when "all of a sudden" the shooting began. Hutchens put her hands over her face, covering her eyes. She heard numerous shots. When the shooting was over, she opened her eyes to see Willoughby and Halvorsen each wielding a pistol. Norman and Durrum had fallen to the floor. Hutchens then saw Willoughby shoot Greene twice more, since she was still alive. Willoughby and Halvorsen then screamed at Hutchens to begin picking up the shell casings while they dragged the bodies of the victims through the hallway to the back door where they were placed in the van. Later, Halvorsen left in the van, and Willoughby left in the truck to get rid of the bodies.
Willoughby testified at trial in his own behalf that on January 13 he and Halvorsen went to 215 Loudon to smoke marijuana with Joe Norman. He and Norman began arguing about a cold check that Norman had given to him, when Norman poked him in the chest and threatened him with a bayonet. Willoughby then reached for his gun and began shooting. He remembered shooting Norman two or three times but did not remember shooting the other victims.
In his statements, Willoughby took all of the blame for the shootings. Halvorsen did not testify during the guilt phase. The jury found both Willoughby and Halvorsen guilty of the three murder charges, and Halvorsen guilty of carrying a concealed weapon. The penalty phase then proceeded, after which the jury returned verdicts sentencing Halvorsen and Willoughby to life imprisonment for the murder of Norman and to death for the murders of Greene and Durrum.

Halvorsen v. Commonwealth, 730 S.W.2d 921, 922-23 (Ky. 1986). The trial court followed the jury's recommendation and sentenced Willoughby to death for the murders of Green and Durrum, and life imprisonment for the murder of Norman.

B. State court procedural history

1. Willoughby's direct appeal to the Kentucky Supreme Court

Willoughby appealed his conviction to the Kentucky Supreme Court, raising thirty assignments of error. The Kentucky Supreme Court consolidated Willoughby's appeal with his co-Defendant's, Leif Halvorsen, for consideration. After thoroughly reviewing the issues raised on appeal, the Supreme Court held that: (1) Willoughby's rights were not violated by the prosecutor's comments that the jury's sentencing decision was a "recommendation";

(2) the "combination" jury instruction did not deprive Willoughby of due process; (3) the "combination" jury instruction did not deprive Willoughby of his right to a unanimous verdict;

(4) the trial court did not err in choosing not to give an instruction on wanton murder; (5) the prosecutor's comments during penalty-phase closing arguments were not improper; (6) Willoughby's counsel from Legal Aid was not constitutionally ineffective even though another attorney from Legal Aid represented Willoughby's co-defendant, Hutchens; (7) trial court did not err in admitting Willoughby's pretrial taped and oral confessions; (8) trial court did not err in failing to instruct on all mitigating factors. Id. at 923-28. Although the Kentucky Supreme Court did not offer its reasoning for denying Willoughby's other claims, the court did state: "We have reviewed the other assertions of error and are of the opinion none of them merits comment." Id. at 928.

Additionally, Willoughby and Halvorsen each asserted on direct appeal that the trial court gave confusing and misleading instructions on the defenses of extreme emotional disturbance and intoxication. The substance of their claims was nearly identical. However, the Kentucky Supreme Court apparently only addressed Halvorsen's claim. Id. at 926. The court held there was no proof to suggest Halvorsen acted under extreme emotional disturbance, such that the trial court did not have to sue sponte give the instruction. Id. The court also concluded that jury was adequately instructed by the trial court on the defense of intoxication. Id.

The Kentucky Supreme Court ultimately affirmed Willoughby's conviction and sentence, and then denied rehearing on July 2, 1987. Id. On December 7, 1987, the United States Supreme Court denied Willoughby's petition for a writ of certiorari. Willoughby v. Kentucky, 484 U.S. 982 (1987).

2. Willoughby's state court post-conviction relief proceedings

On February 8, 1988, Willoughby filed a Motion to Vacate, Set Aside, or Correct Judgment pursuant to Kentucky Rule of Criminal Procedure 11.42. Willoughby's CR 11.42 Motion primarily asserted that he received ineffective assistance of trial counsel for ten reasons: (1) his counsel, employed by Legal Aid, had a conflict of interest with counsel for Willoughby's co-Defendants, who were also employed by Legal Aid; (2) counsel's unconscionably large caseload prevented him from adequately preparing for trial; (3) counsel inadequately argued the motion to suppress Willoughby's pre-trial confession; (4) counsel failed to review and object to defective jury instructions, and request favorable instructions; (5) counsel failed to investigate prior to trial; (6) counsel submitted inadequate or no pretrial motions; (7) counsel made multiple errors during voir dire; (8) counsel failed to make appropriate objections at trial; (9) counsel made multiple errors calling witnesses, questioning witnesses, and developing defense theories during the guilt phase; and (10) counsel failed to make appropriate objections during the penalty phase, and failed to request appropriate penalty-phase instructions.

In addition to challenging his counsel's performance, Willoughby's CR 11.42 Motion asserted his constitutional rights were violated in five other respects: (1) the jury considered improper factors during their sentencing deliberations in violation of Willoughby's Eighth and Fourteenth Amendment rights; (2) the grand jury and petit jury did not represent a fair cross-section of the community; (3) the prosecutor sought the death penalty against Willoughby in discriminatory and arbitrary fashion; (4) the death penalty is cruel and unusual punishment; and (5) the Kentucky Supreme Court erred in rejecting Willoughby's argument on direct appeal that his death sentence was disproportional to factually similar cases where defendants received lesser sentences.

The Commonwealth filed a response to Willoughby's CR 11.42 Motion on March 2, 1988, and an additional memorandum in opposition to the motion on August 10, 1988. The 11.42 Motion, however, sat pending as the Fayette Circuit Court considered other post-conviction motions filed by Willoughby. For example, Willoughby moved to disqualify newly elected Fayette Circuit Court Judge Rebecca Overstreet from considering his CR 11.42 Motion on the grounds that she could not be impartial and that she had personal knowledge of disputed evidentiary issues germane to his case.[1] Willoughby also moved to disqualify the entire Fayette County Commonwealth's Attorney's office from representing the Commonwealth during the CR 11.42 proceeding.[2] Additionally, significant time passed as Willoughby's counsel from the Department of Public Advocacy withdrew due to a perceived conflict of interest, and new counsel was obtained on Willoughby's behalf.

The new attorneys, David Bratt and Robert Brown, took some time to become familiar with the case. On October 24, 1995, the parties convened for a status conference to move the CR 11.42 motion toward a final hearing and adjudication. For the first time in open court, Willoughby's counsel made known that they had filed an ex parte motion that must be adjudicated before the CR 11.42 hearing could take place. The Commonwealth objected to the ex parte nature of the motion. The court sustained the objection, finding that argument from both sides on the motion was appropriate.

On January 10, 1997, Willoughby moved the court to provide funding for investigative and expert assistance - what was later revealed to be the subject of the previous ex parte motion. Willoughby sought this funding to bolster his claim that trial counsel was ineffective in failing to properly investigate the case, interview witnesses and consider experts that might have provided mitigating testimony. The Commonwealth responded that Willoughby failed to establish that the assistance was "reasonably necessary" pursuant to Hicks v. Commonwealth, 670 S.W.2d 837 (Ky. 1984), and that funding should be denied. On August 4, 1997, the Fayette Circuit Court denied Willoughby's motion, finding that funding for assistance was not "reasonably necessary" because Willoughby had already been provided an expert from the Department of Public Advocacy and that the request for an expert was based on pure speculation.

Thereafter, Willoughby and his co-Defendant filed a petition for a writ of prohibition with the Kentucky Court of Appeals precluding the trial court from hearing evidence on the CR 11.42 motion before funding was made available. That petition was transferred to the Kentucky Supreme Court for consideration. The Kentucky Supreme Court found that a writ of prohibition was not warranted because Willoughby could not demonstrate that he would suffer irreparable injury if the Circuit Court continued with the evidentiary hearing without providing funding for investigatory and expert assistance. Instead, according to the Court, if Willoughby's CR 11.42 motion were denied, he could argue on appeal that the Circuit Court improperly denied funding.

On February 11, 1997, the Fayette Circuit Court held an evidentiary hearing on Willoughby's CR 11.42 motion. The hearing was limited to four issues: (1) whether counsel's case load was too great for him to adequately prepare for trial; (2) whether counsel adequately investigated the case, interviewed witnesses, or properly considered expert assistance; (3) whether counsel failed to properly advise Willoughby on whether or not he should testify during the guilt or penalty phase, and whether counsel failed to properly prepare him to testify; and (4) whether counsel failed to adequately discuss trial strategy with him. Willoughby called five witnesses in support of these issues: Mr. Joe Jarrell, his trial counsel; Mr. Steven Bright, an anti-death penalty advocate, law professor, and Director of the Southern Center for Human Rights; Mr. Jesse Willoughby and Mrs. Marsha Willoughby, Willoughby's parents; and Dr. Peter Schilling, a forensic psychologist.

On November 26, 2003, the Fayette Circuit Court issued a five-page order denying Willoughby's CR 11.42 motion. Willoughby filed a motion to alter, amend or vacate the judgment under Kentucky Criminal Rule 59.05 on December 8, 2003, asking the Court to consider additional evidence that was not introduced at the CR 11.42 hearing. Among the evidence attached to the CR 59.05 motion were Willoughby's school, military, mental health, and incarceration records. Willoughby argued that these documents should have been discovered by his counsel in preparation for the sentencing phase of his trial. On January 14, 2005, the Fayette Circuit Court denied Willoughby's CR 59.05 motion, holding that the new evidence could have been discovered in advance of the CR 11.42 hearing and the evidence would not have otherwise resulted in a different adjudication of the CR 11.42 motion.

Willoughby appealed the trial court's denial of his 11.42 and 59.05 motions, raising six claims of error. In three of the claims, Willoughby argued his trial counsel provided ineffective assistance, and the trial court erred in holding to the contrary. Willoughby also argued that the trial court erred by considering each claim of ineffective assistance separately without also considering the cumulative impact of the alleged ineffective representation. In addition, Willoughby argued that the trial court erred in failing to provide adequate funding to investigate potential post-conviction claims, and in failing to hold a hearing on the additional witnesses and evidence discussed in his CR 59.05 motion.

On December 21, 2006, the Kentucky Supreme Court affirmed the trial court's ruling on Willoughby's 11.42 and 59.06 motions. Willoughby v. Commonwealth, No. 2005-SC-0115-MR, 2006 WL 3751392 (Ky. Dec. 21, 2006). The Court denied rehearing on May 24, 2007. Id. On November 26, 2007, the United States Supreme Court denied certiorari. Willoughby v. Commonwealth, 552 U.S. 1043 (2007).

While Willoughby's appeal from the trial court's ruling on his CR 11.42 and 59.05 motions were pending, Willoughby filed a motion for relief from final Judgment pursuant to Kentucky Criminal Rule 60.02(f) alleging juror misconduct. Willoughby asserted that a juror, Reverend Walter Garlington, had a Bible with him at all times while serving as a juror, read the Bible to the jury and lead the jury in prayer every day. In support of this motion, Willoughby attached an affidavit submitted by an investigator for his co-Defendant, Halvorsen. That affidavit affirmed that the investigator interviewed Garlington, and he admitted to reading the Bible to the jury and leading the jury in prayer. Willoughby asserted that Garlington's conduct constituted a violation of his Sixth Amendment right to an impartial jury, the First Amendment's prohibition against the establishment of religion, and the Eighth Amendment's prohibition against cruel and unusual punishment. Willoughby moved the trial court to hold an evidentiary hearing to develop his claim and also sought leave of court to interview the jurors.

The Commonwealth responded to Willoughby's CR 60.02 motion on August 2, 2005. In its response, the Commonwealth argued that Willoughby's motion was untimely as it was brought twenty-one years after the final judgment was entered, and eight months after Willoughby's counsel learned the results of the investigator's interview with Reverend Garlington. Additionally, the Commonwealth contested Willoughby's assertion that Garlington's alleged conduct amounted to misconduct, and argued there was no evidence to suggest that the Bible influenced the jury's decision in any way. To this point, the Commonwealth contended that the affidavit in support of Willoughby's motion - an affidavit of Halvorsen's investigator - contained inaccurate hearsay testimony that should not be considered.

On August 3, 2005, the trial court held a hearing on Willoughby's CR 60.02 motion and granted the parties additional time to file supplemental briefing. After the supplemental briefing was filed, the trial court issued its decision on December 5, 2005 denying Willoughby's motion. According to the court, Willoughby failed to file his motion within a reasonable time such that it could not be considered under CR 60.02(f). The court also held that the motion was without merit as there was no evidence in the record to support the possibility that the jurors were subject to any outside influence. Even if the jurors chose to pray during their deliberations, the court found that to be no reason to inquire into the juror's discussions.

Willoughby appealed the trial court's denial of his CR 60.02 motion. On August 23, 2007, the Kentucky Supreme Court affirmed the trial court's decision, finding no abuse of discretion in ruling that the motions were untimely filed. The Court noted that Willoughby filed his motion over twenty years after his trial and nearly twenty years after the Court affirmed his conviction on direct appeal. This delay, the Court held, was "clearly prima facie evidence to support the trial court's conclusion that... Willoughby's motion[ ] [was] not, in fact, filed within a reasonable time." Willoughby v. Commonwealth, Nos. 2006-SC-000071-MR, 2006-SC-000100-MR, 2007 WL 2404461, at * 3 (Ky. Aug. 23, 2007). Because the Court agreed that the motion was untimely filed, the Court did not consider the merits of the motion. The Kentucky Supreme Court denied rehearing on August 21, 2008. Id.

C. Federal court procedural history

On May 23, 2008, Willoughby, by counsel, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. #7). In that petition, Willoughby raised six (6) claims, including:

Claim 1: The jury committed misconduct when it considered the Bible during deliberations

Claim 2: Petitioner was denied his due process of law and his right to a fair trial when the trial court gave confusing and misleading instructions of petitioner's "defenses" of extreme emotional disturbance and intoxication

Claim 3: The court below erred to petitioner's substantial prejudice and denied petitioner due process of law when it permitted the prosecutor, during the guilt phase, to make improper and prejudicial comments during closing argument

Claim 4: Repeated emphasis that the jury's sentence was only a recommendation denied petitioner a fair trial and sentencing phase

Claim 5: The repeated misconduct of the prosecutor during his penalty phase closing argument denied petitioner due process of law and a fair sentencing hearing

Claim 6: Ineffective assistance of counsel at sentencing phase of the trial

The Commonwealth filed its answer on January 29, 2009. (Doc. #12). Within the answer, the Commonwealth moved the Court to dismiss the petition with prejudice or, alternatively, for summary judgment. Willoughby filed his reply and response to the motion to dismiss or, alternatively, motion for summary judgment on April 29, 2009. (Doc. #21).

Once the petition was fully briefed, Willoughby filed a motion to expand the record to include additional evidence in support of his claim that his counsel was ineffective during the sentencing phase. (Doc. #23). At his CR 11.42 hearing, Willoughby primarily relied on the testimony of Dr. Peter Schilling to support these claims. Once the trial court denied his CR 11.42 motion, Willoughby attempted to give the trial court additional evidence to support these claims by submitting records that Dr. Schilling allegedly reviewed in preparation for his testimony. In the motion to expand the record filed in this Court, Willoughby sought to include an affidavit from Dr. Peter Schilling, which stated that he relied on each of the records that were attached to Willoughby's CR 59.05 motion in preparation for his testimony. Willoughby also attached the records to Dr. Schilling's affidavit.

On July 30, 2009, the Court denied without prejudice Willoughby's motion to expand the record as well the Commonwealth's motion to dismiss the petition. (Doc. #26). At that time, the Commonwealth had not filed a complete and accurate copy of Willoughby's state-court proceeding in the record. Because a review of the state court record was essential to adjudicating both motions, the Court denied both motions without prejudice, and gave the parties the option to resubmit their motions once the record was correct and complete.

Once the complete state court record was filed, Willoughby filed a renewed motion to expand the record. (Doc. #29). Likewise, the Commonwealth submitted a second motion to dismiss the petition. (Doc. #31). On October 5, 2009, Willoughby filed another motion to expand the record. (Doc. #35). By that motion, Willoughby sought to include the results of the juror interviews conducted in 1985 in support of his claim of jury misconduct.

Ultimately, the Court denied both of Willoughby's motions to expand the record. (Docs. #55, 57). The Court also denied the Commonwealth's motion to dismiss, finding, in part, that a motion to dismiss "would place unnecessary pressures on judicial resources in light of the extensive record which must be reviewed in such cases, present unintended burdens in light of the requirements of 28 U.S.C. § 476 under the Civil Justice Reform Act, and is premature until such time as the Court has resolved requests for discovery or for an evidentiary hearing which commonly occur at the outset of such proceedings." (Doc. #55 at 4-5).


Federal courts are vested the authority to grant habeas relief for persons in state custody pursuant to 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Section 2254(d) states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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).

AEDPA imposes a "highly deferential standard for evaluating state-court rulings, and demands that state-court decisions be given the benefit of the doubt." Renico v. Lett, 559 U.S. 766, 773 (2010)(internal citations omitted). This deferential standard is only required when the state court has adjudicated the claim on the merits. "[W]hen a claim has not been adjudicated on the merits in state court proceedings, and has not been procedurally defaulted, [the court must] look at the claim de novo rather than through the deferential lens of AEDPA." Hill v. Mitchell, 400 F.3d 308, 313 (6th Cir. 2005)(internal citations omitted). The Warden obviously seeks to have the Court apply a broad definition of "adjudicated on the merits, " while Willoughby attempts to limit the definition, thereby escaping § 2254(d) review in favor of the more stringent standard of de novo review.

Willoughby posits that a claim has only been adjudicated on the merits if the last state court to consider it issued a "reasoned" opinion resolving the claim in its entirety, leaving no element of the applicable legal test unaddressed. Willoughby contends that an opinion is "reasoned" only when the state court offers some explanation for its decision; more specifically, explaining how and why it reached a certain conclusion. If the last state court to address the claim merely adopted a lower court's decision, or if the court simply stated that it resolved the claim on its merits without offering any explanation, Willoughby suggests that the claim has not been adjudicated on the merits for purposes of § 2254(d) review. If there is any doubt as to whether the claim, or a portion of the claim, was adjudicated on the merits by the state court, Willoughby believes the federal habeas court must presume it was not adjudicated on its merits, and conduct a de novo review.

1. "Adjudicated on the merits"

The Supreme Court has recently clarified the meaning of "adjudicated on the merits" under AEDPA, and rejected many of Willoughby's attempts to limit the meaning of the phrase. In Harrington v. Richter , the Supreme Court held that, "[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles." 131 S.Ct. 770 , 784-85 (2011)(emphasis added). This presumption applies even when the state court summarily rejects all of the claims without explaining its reasoning, or rejects a claim on one element without analyzing other elements. Id. at 784. The Harrington Court reached this conclusion based on the statutory language of § 2254, which requires only an "adjudication" of a "claim, " and not each component of the claim. Id.

The Supreme Court recently extended the presumption of adjudication on the merits to instances where the state court rules against the defendant, and issues an opinion that addresses some claims but does not expressly address the federal claims. Johnson v. Williams, 133 S.Ct. 1088 (2013). The Court recognized that state courts do not always separately address each claim presented in a defendant's papers, though the state court did adjudicate each claim on its merits. Id. at 1094. In some instances, state precedent fully incorporates federal constitutional rights, and the state court may regard its discussion of state law as sufficient to cover the related federal claim. Id. at 1094-95. In other instances, the state court might find that a fleeting reference to a provision of the federal constitution fails to sufficiently raise a separate federal claim. Id. at 1095. And on other occasions, the state court might conclude that a federal claim is too insubstantial to merit discussion. Id. at 1095-96. Although the state court does not offer specific analysis on the federal claim in each of these scenarios, the Supreme Court instructs that the "federal habeas court must presume that the federal claim was adjudicated on the merits...." Id. (emphasis added).

The Richter presumption is a "strong one" that may be rebutted by the habeas petitioner only "in unusual circumstances." Id. The petitioner must show there is some other reason to believe the state court failed to specifically address a federal claim. Richter, 131 S.Ct. at 785. In considering whether the petition has satisfied this burden, the Supreme Court has provided a non-exhaustive list of factors for the federal habeas court to consider: state-court opinion-writing practices; discussion of state-law precedents and whether they incorporate federal law; substantiality of the federal claim; citations to federal cases in state-court opinions (or citations to state cases that contain citations to federal cases); and the degree of similarity between the federal and state claim. Johnson, 133 S.Ct. at 1099-1100 (Scalia, J., dissenting).

2. Section 2254(d) deference

If a claim has been adjudicated on the merits by the state court, federal habeas relief may not be granted "unless it is shown that the earlier state court's decision was contrary to' federal law then clearly established in the holdings of [the Supreme Court], § 2254(d)(1); or that it involved an unreasonable application of such law, § 2254(d)(1); or that it was based on an unreasonable determination of the facts' in light of the record before the state court, § 2254(d)(2)." Richter, 131 S.Ct. at 785 (internal citations omitted).

A. Contrary to clearly established federal law

A state-court decision is "contrary to" clearly established precedent "if it applies a rule that contradicts the governing law set forth in [Supreme Court] cases' or if it confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent.'" Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). The state-court decision must be measured against the clear holdings of the Supreme Court, as opposed to dicta, that existed at the time the state court rendered its decision. Greene v. Fisher, 132 S.Ct. 38, 44 (2011); Williams, 529 U.S. at 412. Habeas relief is not warranted if the state-court decision erroneously applies Circuit Court precedent, including decisions of the Circuit Court that have interpreted Supreme Court precedent. Renico v. Lett, 559 U.S. 766, 778 (2010).

B. Unreasonable application of clearly established federal law

The "unreasonable application" analysis often overlaps with the "contrary to" analysis. Williams, 529 U.S. at 385. To the extent they differ, "[a]n unreasonable application' occurs when a state court identifies the correct governing legal principle from [the Supreme Court's] decision but unreasonably applies that principle to the facts of [the] petitioner's case.'" Rompilla v. Beard, 545 U.S. 374, 380 (2005) (quoting Wiggins v. Smith, 539 U.S. 510, 520 (2003)) (emphasis added). "The unreasonable application' clause requires the state court decision to be more than incorrect or erroneous." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). To be entitled to habeas relief, "[t]he state court's application of clearly established law must [have been] objectively unreasonable." Id. The Supreme Court has also defined the test as "whether it is possible fairminded jurists could disagree that [the state court's decision is] inconsistent with the holding in a prior decision of th[e] [Supreme Court]." Harrington, 131 S.Ct. at 786. If fairminded jurists could disagree, habeas relief is not warranted. Id.

In evaluating a state-court decision under this prong, the federal habeas court must be mindful of the specificity of the Supreme Court's rule. Id. "The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.'" Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2011)). Ultimately, the state-court decision must be granted deference and latitude under this standard. Id.

C. Unreasonable determination of facts

Under § 2254(d)(2), federal habeas relief is warranted only if the state court made "an unreasonable determination of facts in light of the evidence presented in the State court proceeding." Rice v. Collins, 546 U.S. 333, 338 (2006) ( quoting 28 U.S.C. § 2254(d)(2)). The state court's factual findings are presumed correct; the habeas petitioner has the burden of rebutting this presumption by clear and convincing evidence. Id. (citing § 2254(e)). As the statutory language makes clear, the habeas petitioner may only use evidence presented in the state court to show the factual findings were unreasonable. Id. at 339.

An unreasonable determination of fact alone by the state court, however, does not entitle the petitioner to habeas relief. See Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011). "[The petitioner must [also] show that the resulting state court decision was "based on" that unreasonable determination" before habeas relief is warranted. Id.


In an effort to escape the deferential review required by § 2254(d), Willoughby contends that the statute is unconstitutional, though he does not offer any independent argument in support of his assertion. Instead, he relies exclusively on Judge Reinhardt's dissenting opinion from the Ninth Circuit's decision to deny rehearing en banc in Crater v. Galaza, 508 F.3d 1261 (9th Cir. 2007). Judge Reinhardt opined that § 2254(d), as AEDPA, amounts to a severely pervasive congressional incursion on the judicial power, in violation of the separation of powers doctrine. Id. at 1261. As it is a dissenting opinion, it has no precedential value in the Ninth Circuit and carries even less weight here.

Neither the Supreme Court nor the Sixth Circuit have addressed the constitutionality of § 2254(d) as amended by the AEDPA. When other circuits have considered the statute's constitutionality, they have uniformly upheld the law. See Bonomelli v. Dinwiddie, 339 F.App'x 384 (10th Cir. 2010); Evans v. Thompson, 518 F.3d 1 (1st Cir. 2008), cert. denied, 129 S.Ct. 255 (2008); Crater v. Galaza, 491 F.3d 1119 (9th Cir. 2007); Mueller v. Angelone, 181 F.3d 557 (4th Cir. 1999); Green v. French, 143 F.3d 865 (4th Cir. 1998), overruled on other grounds by Williams v. Taylor, 529 U.S. 362 (2000); Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996), rev'd on other grounds, 521 U.S. 320 (1997). But see Davis v. Straub, 430 F.3d 281, 296-98 (6th Cir. 2005) (Merritt, J., dissenting). Willoughby's citation to Judge Reinhardt's dissent does not persuade this Court to disregard solid agreement among the circuits.

Judge Reinhardt opined that § 2254(d)(1) infringes on the federal judicial power - vested wholly and exclusively in the federal courts by Article III of the Constitution - in two principal ways. Crater, 508 F.3d at 1261. First, federal courts are required to analyze state-court decisions for conformity with only Supreme Court precedent, which prohibits lower courts from applying the ordinary principle of stare decisis, "thereby interfering with the federal courts' normal adjudicatory process." Id. Second, federal courts are "required to give effect to incorrect state rulings that, in the federal courts' judgment, violate the Constitution." Id. These restrictions, Judge Reinhardt explained, amount to "a congressional breach of the federal judiciary's integrity and independence, of its duty to maintain the supremacy of the Constitution, and, indeed, of the constitutional structure itself...." Id.

In Bowling v. Parker, 882 F.Supp.2d 891 (2012), Judge Thapar, United States District Court Judge for the Eastern District of Kentucky, recently refuted arguments similar to those made by Judge Reinhardt, and found that § 2254(d)(1) did not violate the separation of powers. The court began with two important and related basic tenants of our federal system. First, state courts are capable interpreters of federal constitutional law, and are bound by the Supremacy Clause to "guard and protect rights secured by the Constitution.'" Id. at 896 ( quoting Ex Parte Royall, 117 U.S. 241, 251 (1886)). Second, lower federal courts derive their entire jurisdiction from statute, not Article III, and Congress is permitted to "expand or contract lower federal courts' power to grant habeas relief to state prisoners as it pleases." Id. at 897. The court then turned directly to whether § 2254(d) runs afoul of Article III.

Judge Thapar concluded that § 2254(d) does not violate Article III as it does not infringe on federal courts' independent judgment to determine whether a prisoner's constitutional rights were violated. Id. at 899. Rather, the statute serves to limit the information federal habeas courts may consider in exercising independent judgment, as well as limit the availability of the remedy. Id. More particularly, federal courts remain free to determine that a prisoner's right has been violated, however the court may only grant habeas relief in limited circumstances. Id. Each of these limitations are constitutional in Judge Thapar's determination. Id.

"[T]he Necessary and Proper Clause of Article I grants Congress the power to make laws for carrying into execution all judgments which the judicial department has power to pronounce.'" Id. at 898 (quoting Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 22 (1825) (Marshall, C.J.)). This clause allows Congress to limit the source of information that courts may consider in making its independent judgment, and also allows Congress to prescribe standards of review that courts must follow. Id. That same clause permits Congress to determine when a remedy is available for a violation of a constitutional right, though Congress may not dictate how courts interpret federal law nor compel a particular result. Id. at 899. Based on these considerations, Judge Thapar succinctly concluded that,

[u]nder § 2254(d)(1), federal courts still make independent determinations of whether a petitioner's rights were violated, then look to Supreme Court precedent to decide whether they can grant relief. The statute limits remedies rather than mandating a rule of decision. As a result, § 2254(d)(1) does not run afoul of Article III.


Judge Thapar's well-reasoned conclusion in Bowling is consistent with all other circuits to consider the issue. As the Fourth Circuit held in Green v. French ,

In amending section 2254(d)(1), Congress has simply adopted a choice of law rule that prospectively governs classes of habeas cases; it has not subjected final judgments to revision, nor has it dictated the judiciary's interpretation of governing law and mandated a particular result in any pending case. And amended section 2254(d) does not limit any inferior federal court's independent interpretive authority to determine the meaning of federal law in any Article III case or controversy. Under the AEDPA, we are free, if we choose, to decide whether a habeas petitioner's conviction and sentence violate any constitutional rights. Section 2254(d) only places an additional restriction upon the scope of the habeas remedy in certain circumstances. As the Seventh Circuit pointed out in Lindh in great detail, such a limitation upon the scope of a remedy is entirely ordinary and unexceptionable, even when the remedy is one for constitutional rights. See Lindh, 96 F.3d at 870-73. Moreover, even if section 2254(d) does limit the interpretive power of the lower federal courts in some sense, that limitation is tantamount to other such choice of law limitations which are widely accepted and have never been thought to raise Article III problems. See Lindh at 870-73 (discussing non-constitutional contexts-such as res judicata, Erie, and federal court certification of state law issues-where federal courts are often bound by another tribunal's interpretation of law).

Green v. French, 143 F.3d 865, 874-75 (4th Cir. 1998) (internal citations omitted), rev'd on other grounds by Williams v. Taylor, 529 U.S. 362 (2000). This Court agrees with Judge Thapar and all other circuits to decide the issue. Section 2254(d)(1) does not infringe on the court's independent judgment to determine whether a constitutional violation has occurred, but instead limits the court's ability to provide a remedy. This limitation does not breach the judiciary's independence. Ultimately, § 2254(d)(1) is constitutional, and Willoughby's claims will be reviewed pursuant to the statute where it applies.


Claim 1-Juror Misconduct

As his first ground for habeas relief, Willoughby argues that the jury committed misconduct by considering passages from the Bible during its deliberations, violating his Sixth and Fourteenth Amendment right to trial by an impartial jury and a verdict based solely on the evidence presented at trial. The Warden responds that habeas relief is not warranted on this claim because it is procedurally defaulted, and Willoughby cannot establish cause and prejudice to excuse the default. The Court agrees; this claim is procedurally defaulted and Willoughby has not established sufficient cause to excuse the default.

A. Applicable Law

"Under the procedural default doctrine, a federal court is generally barred from considering an issue of federal law arising from the judgment of a state court if the state judgment rests on a state-law ground that is both independent of the merits of the federal claim and an adequate basis for the state court's decision.'" Stone v. Moore, 644 F.3d 342, 345 (6th Cir. 2011)( quoting Munson v. Kapture, 384 F.3d 310, 313-14 (6th Cir. 2004)). A federal habeas court can, however, consider the claim on its merits if "the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991).

The Sixth Circuit uses a four-part test to determine whether a claim is procedurally defaulted:

First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule.... Second, the court must decide whether the state courts actually enforced the state procedural sanction.... Third, the court must decide whether the state procedural ground is an adequate and independent ground on which the state can rely to foreclose review of a federal constitutional claim.... Once the court determines that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then petitioner must demonstrate... that there was cause for him not to follow the procedural rule and that he was actually prejudiced by the alleged constitutional error.

Stone, 644 F.3d at 346 ( quoting Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)). In making this inquiry, the court is to "look at the last explained state court judgment to determine whether relief is barred on procedural grounds." Id. (internal quotations and citations omitted).

B. This claim is procedurally defaulted

Willoughby conceded in his petition that this claim is procedurally defaulted, and that he must establish cause and prejudice in order for the Court to consider this claim on its merits. Having reviewed each of the first three factors, the Court finds that concession to be appropriate. Willoughby brought this claim in state court pursuant to Civil Rule 60.02(f) on June 27, 2005. Under that rule, a trial court may amend or correct its prior judgment for "any other reason of an extraordinary nature justifying relief" so long as the motion is filed within a "reasonable time" after the judgment was entered. CR 60.02(f). The trial court has the discretion to determine whether the motion was filed within a reasonable time. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983). Here, Willoughby's CR 60.02 motion was filed twenty-one years, ten months, and twenty-two days after his judgment was entered.

The Kentucky Supreme Court held that the trial court did not abuse its discretion in determining that Willoughby failed to file his CR 60.02 motion within a reasonable time. Willoughby v. Commonwealth, Nos. 2006-SC-000071-MR, 2006-SC-000100-MR, 2007 WL 2404461, at *1 (Ky. Aug. 23, 2007). The Court explained that Willoughby's CR 60.02 was "filed over twenty over twenty years after the trial... [and] [t]hat protracted delay is clearly prima facie evidence to support the trial court's conclusion that... Willoughby's motion[ ] [was] not, in fact, filed within a reasonable time." Id. at *2.

The Court also rejected Willoughby's contention that he filed the motion as soon as he learned of potential impropriety. According to the Court,

It is uncontested that the trial court gave permission for the jurors to be interviewed in 1985. At that time, many of the jurors refused to be interviewed; but two jurors were actually interviewed. And Juror Garlington's strong religious views surfaced during the trial, as is plainly evident from the astonishing fact that the trial court allowed Garlington to lead the courtroom in prayer at the conclusion of the case. So through due diligence and proper questioning, Halvorsen and Willoughby could have learned of any alleged jury misconduct approximately twenty years before they filed their CR 60.02 motion. Indeed, since they had already had an opportunity to speak to at least two jurors, it appears as if Halvorsen and Willoughby could have, and should have, included any claims regarding jury misconduct in their RCr 11.42 petitions. Investigator Gentry's affidavit states that his interview with Juror Garlington occurred before the trial court denied Willoughby's RCr 11.42 petition. So Willoughby presumably could have, at a minimum, sought leave to amend his RCr 11.42 petition to reflect the jury misconduct allegations stemming from Gentry's affidavit. Issues that could reasonably have been made in an RCr 11.42 motion are not cognizable in a CR 60.02 motion filed later in time.

Id. Based on the length of delay in filing his motion, as well as Willoughby's failure to discover the issue in a timely fashion, the Kentucky Supreme Court affirmed the trial court's decision to deny the requested relief under CR 60.02. Id. at *3.

The Kentucky Supreme Court's decision to deny Willoughby's CR 60.02 because it was untimely filed amounted to an adequate basis for its judgment and was independent of the federal question. A discretionary state procedural rule, such as the discretion to determine whether a CR 60.02 motion was filed within a reasonable time, may satisfy the "adequate" requirement so long as it is "firmly established and regularly followed." Walker v. Martin, 131 S.Ct. 1120, 1127-28 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 60 (2009)). As the Kentucky Supreme Court noted in its decision affirming the trial court's denial of Willoughby's CR. 60.02 motion, similar motions filed far sooner than Willoughby's are often denied because they were not filed in a reasonable time. Willoughby, 2007 WL 2404461, at *3 (citing Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983) (holding that trial court did not abuse its discretion in finding that CR 60.02 motion filed five years after conviction was not filed in reasonable time); Reyna v. Commonwealth, 217 S.W.3d 274, 276 (Ky. App. 2007) (holding that CR 60.02 motion filed four years after guilty plea was not filed in reasonable time)); see also Stoker v. Commonwealth, 289 S.W.3d 592, 597 (Ky. App. 2009) (CR.02 motion filed eighteen years after conviction was not filed in reasonable time); Commonwealth v. Carneal, 274 S.W.3d 420, 433 (Ky. 2008) (finding no abuse of discretion in trial court's decision to deny CR. 60.02 motion as untimely when it was filed six years after judgment was entered). The state court's reliance on this discretionary rule, thus, appears firmly established and regularly followed, such that the state court's decision rested on an adequate basis independent of the federal question. As a result, Willoughby's claim is procedurally defaulted unless he can establish cause and prejudice.

C. Willoughby has not established cause for his procedural default

"[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). The prisoner may demonstrate such an objective impediment by showing, among other things, "that the factual or legal basis for a claim was not reasonably available to counsel" or "that some interference by officials made compliance impracticable." Id. Willoughby asserts he was prevented from developing the merits of this claim because jurors refused to be interviewed after trial, and those that were interviewed were otherwise recalcitrant. This argument is unavailing. Willoughby had the opportunity to develop the merits of this claim much sooner, but failed to do so.

Willoughby asserts that he had no reason to know about Reverend Garlington's alleged misconduct until 2003 when Garlington was interviewed by the DPA investigator. However, a review of the trial transcript shows that Willoughby had notice that religion might have influenced Garlington's decision. During voir dire, Garlington revealed that he was formerly a pastor at a Baptist Church. (TE 366). In light of his profession, Garlington was asked if he had ever debated against the death penalty based on his religious beliefs. Garlington responded:

The Bible says if you live by the sword you'll die by the sword. Now the Bible also says that if a man - no man can take his life but Christ. Now if a man hasn't been saved, he's already committed himself. If a man is saved, then it doesn't matter, because he's with the Lord. Now if a man has done accepted Christ and he does wrong, he should be judged by the system. You follow what I'm saying.

(TE 367). Garlington went on to explain:

If he done wrong, then he should pay. As far as the death penalty, that's him and the federal government or whatever the case may be; if he's done wrong and he's found guilty and the facts prove it, then I have to vote that man gets the penalty, whatever it is.

( Id. ).

Garlington expressed his religious views in open court for a second time when he was permitted to lead the court in prayer at the conclusion of trial. Garlington stated:

Let's all just bow our heads. Just for a moment for truly we all have been through a trying situation and we can see from our standpoint that justice has been done, and we want to say to you, we want to say to God that we appreciate him coming into our midst and guiding us all. We want to thank God for this.

(TE 2621) (emphasis added). These comments clearly demonstrated Garlington's views on the death penalty were driven, in part, by his religious beliefs. They also revealed his belief that God guided the court, and jury, in bringing justice against Willoughby.

In 1985, the trial court permitted Willoughby to interview the jurors. Eleven of the jurors were contacted, but nine of the jurors refused to be interviewed; two jurors, Shirley Munro and an unidentified juror, were interviewed. According to Willoughby's petition, both jurors were asked general questions about the atmosphere of juror deliberations. Neither juror indicated that religion played a part in their decision. Willoughby admits, though, that neither juror was specifically asked about religion, even after all of Garlington's comments about religion in open court. By all accounts, it appears that both jurors were honest and forthcoming based on the questions asked. With proper questioning, Willoughby could have uncovered potential juror misconduct during those interviews, if juror misconduct occurred at all. As a result, juror recalcitrance was not the cause of Willoughby's failure to discover this issue sooner. Rather, it was his own failure to properly question those jurors who agreed to be interviewed. This cannot serve as cause to excuse Willoughby's defaulted claim.

D. Willoughby is not entitled to an evidentiary hearing to establish cause

In his petition, Willoughby also requests the Court hold an evidentiary hearing so that he may establish cause for his procedural default. Willoughby proposes that he would call Juror Munro and the unidentified juror who were interviewed in 1985 to establish "whether or not in 1985 [he] had the ability to plead this claim." (Doc. #7 at 42). Willoughby's co-Defendant previously moved the Court for an evidentiary hearing on the same grounds, which was denied. See Halvorsen v. Parker, Civ. A. No. 08-cv-484-DLB, 2012 WL 5866595 (E.D. Ky. Nov. 19, 2012). The Court will deny Willoughby's informal motion on the same basis.

Federal habeas courts are permitted to exercise their discretion in considering whether to hold an evidentiary hearing for a prisoner to establish cause and prejudice to excuse a procedurally defaulted claim. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007). In exercising this discretion, the court may consider whether the state-court record refutes the prisoner's factual allegations or otherwise precludes habeas relief. Schriro v. Id .; see also Rules Governing § 2254 Cases, Rule 8 ("If the petition is not dismissed, the judge must review the answer, any transcripts and records of state-court proceedings, and any material submitted under Rule 7 to determine whether an evidentiary hearing is warranted.").

Having reviewed the state-court record, Willoughby has failed to specify what new information could be discovered by questioning these jurors at an evidentiary hearing. See Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001) (holding that district court did not err in denying request for evidentiary hearing where prisoner failed to specify what could be discovered through an evidentiary hearing). Willoughby's state-court record gives the Court sufficient notice that he attempted to interview all of the jurors in 1985, and that nine jurors refused to be interviewed. The record also clearly shows that two jurors agreed to be interviewed, but did not mention during their interviews that Garlington engaged in any improprieties during deliberations. Finally, as Willoughby readily admits, he did not specifically ask the jurors whether religion impacted their decision. Thus, the Court is well aware that Willoughby failed to discover the alleged juror misconduct during the 1985 interviews for a combination of reasons. Willoughby's desire to call those two jurors to testify about facts that are already in the record would not aid the Court in determining whether sufficient cause has been established. Willoughby's motion for an evidentiary hearing is, therefore, denied.

Claim 2 - Jury Instructions

Willoughby argues that the trial court's instructions on the applicability of the extreme emotional disturbance and intoxication defenses were confusing and misleading, which deprived him of due process of law. Willoughby presented this challenge to the Kentucky Supreme Court. The parties, however, disagree about whether the Kentucky Supreme Court addressed the claim on the merits such that § 2254 deference is warranted here. This Court need not resolve that issue because Petitioner's claim lacks merit even if it is given de novo review.

A. Instructions on Extreme Emotional Disturbance

Willoughby was charged with three counts of murder for the deaths of Joe Norman, Joe Durrum and Jacqueline Green. Willoughby's confession and other evidence presented at trial clearly indicated that he shot and killed Norman. However, Willoughby's mental state at the time he killed Norman was disputed. Therefore, the trial court instructed the jury on the elements of murder (Instruction No. 22), first degree manslaughter (Instruction No. 23), second degree manslaughter (Instruction No. 24), and reckless manslaughter (Instruction No. 24) for the death of Norman. As part of the murder instruction, the court instructed the jury that they must find Willoughby was not acting under extreme emotional disturbance ("EED") when he killed Norman in order to return a guilty verdict for murder. The jury ultimately found Willoughby guilty of murdering Norman, which necessarily included the finding that he was not acting under EED.

While the evidence clearly showed that Willoughby shot and killed Norman, it was not clear whether Willoughby or his co-defendant killed Durrum and Green. Both defendants fired shots at the victims, however the evidence was disputed as to whose shot ultimately caused the victims' death. As a result, the trial court instructed the jury that they could find Willoughby guilty of murder as to Durrum and Green ...

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