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Halverson v. Simpson

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

October 22, 2014

LEIF HALVERSON, Petitioner
v.
THOMAS L. SIMPSON, Warden, Kentucky State Penitentiary, Respondent.

MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

DAVID L. BUNNING, District Judge.

This matter is before the Court on Petitioner Leif Halverson's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

On July 22, 1983, a Kentucky state-court jury convicted Halvorsen on three counts of first-degree murder for the deaths of Joe Durrum, Jacqueline Greene and Joe Norman. The trial court sentenced Halverson to death for Durrum and Greene's murders and life imprisonment for Norman's murder. Kentucky state courts affirmed Halverson's convictions and sentences on direct appeal and denied him post-conviction relief. Halvorsen is currently incarcerated at the Kentucky State Penitentiary in Eddyville, Kentucky.

In his § 2254 petition, Halverson contends that he is being held in violation of the United States Constitution because of errors that occurred both during his trial and on appeal. Halverson does not argue that he is innocent. He argues that his constitutional rights were violated because of juror and prosecutorial misconduct, improper jury instructions, ineffective assistance of trial and appellate counsel, and improper sentencing. Halverson's petition is fully briefed and ripe for review. For the following reasons, the Court will deny Halverson's habeas petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Trial in Fayette Circuit Court

On March 7, 1983, a Fayette County Grand Jury indicted Halvorsen, along with Mitchell Willoughby and Susan Hutchens, on three counts of intentional murder and two counts of robbery. The grand jury also charged Halverson and Hutchens with carrying a concealed weapon. Hutchens, who was present when the murders took place, pled guilty to two counts of hindering prosecution and testified at Halvorsen and Willoughby's joint trial. The trial took place in Fayette County Circuit Court with the Honorable Armand Angelucci presiding. The Kentucky Supreme Court provided the following factual summary:

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.

Halvorsen v. Commonwealth, 730 S.W.2d 921, 922-23 (Ky. 1986).

The jury found Halverson guilty of all three murder charges and guilty of carrying a concealed weapon; the trial court granted a directed verdict on the robbery charge. Halvorsen testified at the penalty phase. During his testimony, Halvorsen admitted shooting two of the victims, but claimed he did so because of extreme intoxication and duress. On August 31, 1983, the trial court followed the jury's recommendation and sentenced Halvorsen to death for Durrum and Greene's murders and life imprisonment for Norman's murder.

B. State court procedural history

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

Halvorsen appealed his conviction to the Kentucky Supreme Court, raising twenty-eight assignments of error. The court consolidated Halvorsen's appeal with Willoughby's. Two attorneys from the Kentucky Department of Public Advocacy represented Halvorsen. On December 18, 1986, the Kentucky Supreme Court affirmed Halvorsen's conviction and sentence. Halvorsen, 730 S.W.2d 921.

In denying Halvorsen's appeal, the Court held as follows: (1) the prosecutor did not commit reversible error by telling the jury its sentencing verdict was a "recommendation"; (2) the trial court's "combination" murder instruction did not violate due process or deprive Halvorsen of his right to a unanimous verdict; (3) the trial court did not err by choosing not to give a wanton murder instruction; (4) the prosecutor's closing argument during the penalty phase did not deprive Halvorsen of a fair trial; (5) the prosecutor's crossexamination of Willoughby did not result in comments about Halvorsen's decision not to testify; (6) the prosecutor did not introduce evidence of other crimes or bad acts that impermissibly prejudiced Halvorsen; (7) Halvorsen was not entitled to an instruction on extreme emotional disturbance; (8) the trial court properly instructed the jury on Halvorsen's intoxication defense; (9) the trial court was not required to sua sponte instruct the jury on nonstatutory mitigating factors; and (10) the trial court was not required to instruct the jury that Halvorsen's accomplice participation was a mitigating factor. Id. at 924-26. While the Kentucky Supreme Court did not provide an analysis for denying Halvorsen's other claims, it stated that it "reviewed the other assertions of error and are of the opinion none of them merits comment." Id. at 928.

The Kentucky Supreme Court denied Halvorsen's petition for rehearing. On November 30, 1987, Halverson's convictions and sentences became final when the United States Supreme Court denied Halverson's petition for a writ of certiorari. Halvorsen v. Kentucky, 484 U.S. 970 (1987).

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

On February 8, 1988, Halvorsen filed a motion for post-conviction relief pursuant to Kentucky Rule of Criminal Procedure 11.42. Halvorsen's CR 11.42 Motion asserted that he received ineffective assistance of counsel for the following reasons: (1) counsel failed to adequately investigate and present relevant evidence in support of his guilt/innocence phase defense; (2) counsel failed to obtain an adequate psychological evaluation; (3) counsel acted negligently by trying a capital case without a co-counsel; (4) counsel failed to adequately consult with Halvorsen in the presentation of his defense at both the guilt/innocence and penalty phases; (5) counsel's use of the word "recommendation" in reference to the jury's verdict; (6) counsel failed to adequately present mitigating evidence at the penalty phase; (7) counsel failed to adequately advise Halvorsen of the advantages/disadvantages of the testifying at trial; (8) counsel failed to adequately interview prosecution witnesses; (9) counsel failed to adequately prepare defense witnesses; (10) counsel failed to adequately cross-examine critical witnesses; (11) counsel created a conflict of interest by allowing a client, Comprehensive Care, to evaluate Halvorsen; (12) counsel failed to seek a change of venue despite pretrial publicity; (13) counsel failed to adequately conduct voir dire; (14) counsel failed to adequately present a motion for separate trials; (15) counsel failed to conduct an adequate motion practice; (16) counsel failed to adequately object to improper evidence and prosecutorial comments/questions; (17) counsel failed to adequately request jury instructions and failed to object to improper jury instructions; (18) counsel failed to challenge the composition of the Fayette County grand and petit jury pools; (19) counsel failed to object to the disproportionality of Halvorsen's death sentence; (20) counsel failed to object to the reciprocal use of mutually supporting aggravating factors; (21) counsel failed to object to defective and misleading verdict use in the penalty phase; and (22) counsel failed to request funds to conduct a study on the application of Kentucky's death penalty statute.

In addition to his ineffective assistance of counsel claims, Halvorsen argued that his following constitutional rights were violated: (1) his Eighth Amendment right to rational sentencing and right to be free from cruel and unusual punishment, as well as his Fourteenth Amendment right to due process by the jury's use of intoxication and possibility of parole as aggravating factors; (2) his Fourteenth Amendment right to be indicted and tried by a jury representing a fair cross-section of the community; (3) his due process and equal protection rights because the prosecutor sought capital punishment in a discriminatory and arbitrary fashion; (4) his due process right and right to be free from cruel and unusual punishment because the trial court failed to consider the disproportionality and arbitrariness of his death sentences; and (5) his due process right and right to be free from cruel and unusual punishment because the Kentucky Supreme Court improperly conducted its proportionality review.

The Commonwealth filed its response on March 2, 1988. Several events then delayed adjudication of Halvorsen's CR 11.42 motion. First, Halvorsen's initial counsel withdrew and new counsel was appointed.[1] Halvorsen then filed a motion to supplement his CR 11.42 motion, which the court granted in part and denied in part. Based on that ruling, the following arguments were added to Halverson's CR 11.42 motion: (1) counsel lessened the jury's responsibility by telling the jury that they were not going to be the ones to impose the death penalty because that is carried out by the Commonwealth; (2) ineffective assistance of counsel for failure to seek a change of venue because Halvorsen's pretrial psychiatric evaluation was publicized; (3) additional arguments to buttress Halvorsen's ineffective assistance of counsel claim for failing to seek an independent psychological evaluation; (4) counsel failed to retain expert witnesses in a variety of fields; (5) counsel failed to go to the Commonwealth's office to look at evidence; (6) counsel failed to move for a separate trial given the conflict of interests between the two defendants; (7) the trial court failed to give a proper mitigation instruction in the penalty phase regarding accomplice liability.

On February 11-12, 1998, an evidentiary hearing was held on three issues: (1) whether counsel adequately investigated the case, interviewed witnesses, and consulted with experts; (2) whether counsel adequately advised Halvorsen on whether he should testify; and (3) whether counsel adequately discussed trial strategy with Halvorsen. Halvorsen's second set of co-counsel withdrew and a third set of co-counsel were appointed. Halvorsen filed a motion for an additional evidentiary hearing, which the court denied, and a motion to supplement the CR 11.42 hearing record, which the court granted. Issues related to funding for expert and investigative services also delayed the proceedings.

On October 30, 2002, the Fayette Circuit Court denied Halvorsen's CR 11.42 motion; a month later, it denied Halvorsen's CR 59.05 motion for reconsideration. Halvorsen appealed to the Kentucky Supreme Court. While that appeal was pending, Halvorsen filed a CR 60.02 motion in Fayette Circuit Court seeking relief from judgment. That motion raised two arguments: (1) jury misconduct because of the introduction of extraneous material into the jury room during capital sentencing deliberations, and (2) a First Amendment violation because a juror introduced Biblical passages into the trial.

On December 5, 2005, the Fayette Circuit Court denied Halverson's CR 60.02 motion as untimely; Halvorsen appealed. On August 23, 2007, the Kentucky Supreme Court issued separate opinions affirming the trial court's rulings on Halvorsen's CR 11.42 and CR 60.02 motions. Halvorsen v. Commonwealth, 258 S.W.3d 1 (Ky. 2007); Halvorsen v. Commonwealth, Nos. 2006-SC-000071-MR, 2006-SC-000100-MR, 2007 WL 2404461 (Ky. Aug. 23, 2007). The court denied a petition for rehearing.

C. Federal court procedural history

On August 18, 2009, Halvorsen, by counsel, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. # 25). In his petition, Halverson does not argue that he is innocent. To quote Petitioner's brief "[t]he evidence that [Halverson] shot Durrum and Greene... was overwhelming." (Doc. # 25 at 146). This evidence included Hutchens's testimony that on the morning of the shooting Halverson asked her to purchase.38 hollow points for his handgun (TE 1736); Hutchens's testimony that Halverson was holding his.38 caliber handgun when the shooting stopped (TE 1745-46); the chief medical examiner and a forensic ballistics expert's testimony that established.38 caliber bullets from Halverson's gun caused fatal injuries to Durrum and Greene (TE 1303-38, 1517-54); and Glenda Tucker's testimony that on the day of the murders Halverson admitted killing three people (TE 1699).

In his petition, Halvorsen argues thirty (30) grounds for granting habeas relief;[2]

Claim 1: The jury's consideration of Biblical scriptures while deliberating Halvorsen's guilt and also while deliberating whether to sentence Halvorsen to death deprived Halvorsen of the right to an impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution
Claim 2: The jury's use of Biblical scriptures when deliberating on whether to sentence Halvorsen to death deprived Halvorsen of the right to heightened reliability in the appropriateness of the decision to impose the death penalty, the right to guided discretion in the sentencing determination, the right to an individualized sentencing determination based on a reasoned consideration of the aggravating and mitigating circumstances, and the right to a sentencing decision by a jury that does not believe final responsibility for the death penalty rests somewhere other than where authorized by law, all guaranteed by the Eighth Amendment to the United States Constitution
Claim 3: The trial court's failure to excuse jurors who would hold it against Halvorsen if he did not testify, and whose ability to consider mitigating evidence and impose less than death was substantially impaired, violated Halvorsen's Sixth and Fourteenth Amendment right to a trial by an impartial jury at both the guilt and sentencing phase and his Eighth Amendment right to a trial before a jury that will "consider" and "give effect" to all proffered mitigating evidence
Claim 4: The prosecutor's numerous improper comments during his guilt - or - innocence phase closing argument deprived Halvorsen of his Fifth and Fourteenth Amendments right to due process
Claim 5: Halvorsen was denied his federal due process right to be informed of the nature of the charges against him, and thus was denied the ability to formulate a defense, when the trial court modified the charges against him by instructing the jury that it could convict him of intentional murder without finding that Halvorsen actually shot anyone, even though he was indicted only as the actual shooter
Claim 6: Halvorsen was denied his right to due process under the Fourteenth Amendment to the United States Constitution when the trial court failed to instruct the jury on extreme emotional disturbance, thereby shifting the burden of proof on extreme emotional disturbance to the defense and allowing Halvorsen to be convicted, even though the prosecution did not prove an element of the offense - absence of extreme emotional disturbance
Claim 7: Halvorsen was denied his right to effective assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, when trial counsel failed to request: 1) an instruction on extreme emotional disturbance generally; and, 2) that the jury be instructed that it must find that the prosecution proved absence of extreme emotional disturbance beyond a reasonable doubt in order to convict Halvorsen of murder
Claim 8: Kentucky's murder statute was unconstitutionally vague as applied to Halvorsen, in violation of the Fourteenth Amendment due process clause, because it failed to define extreme emotional disturbance
Claim 9: Halvorsen was denied his Fourteenth Amendment due process right to a unanimous verdict, as guaranteed by the Kentucky Constitution, when the jury was allowed to and did convict Halvorsen under an instruction that did not require it to determine if Halvorsen acted as a principal or an accomplice
Claim 10: The federal due process clause requires the prosecution to prove every element of the charged offense beyond a reasonable doubt. Halvorsen was denied this right when the trial court gave an accomplice instruction that allowed the jury to convict without finding the elements of accomplice liability, as defined by Kentucky law, had been proven
Claim 11: Halvorsen was denied his right to due process under the Fourteenth Amendment to the United States Constitution when the jury was instructed on accomplice liability and convicted Halvorsen under possible accomplice liability despite insufficient evidence that Halvorsen acted as an accomplice
Claim 12: Halvorsen was denied his Sixth and Fourteenth Amendment right to effective assistance of counsel on direct appeal when direct appeal counsel failed to raise meritorious claims. Direct appeal counsels' deficient performance in failing to raise these claims also serves as cause to excuse any potential barrier to reviewing the underlying merits of claims not raised on direct appeal
Claim 13: Halvorsen was denied his federal due process rights when he was convicted of intentional murder despite being insane at the time of the crime
Claim 14: Trial counsel's failure to conduct a reasonable investigation of the facts of the crime and Halvorsen's mental health, including evidence of extreme emotional disturbance, that could have posed a defense to intentional murder or could have resulted in a conviction for a lesser sentence, and trial counsel's objectively unreasonable defense, deprived Halvorsen of the effective assistance of counsel at the guilt - or - innocence phase of his death penalty trial
Claim 15: Halvorsen was denied his Fourteenth Amendment due process right to a fair trial when the prosecution elicited irrelevant and prejudicial other bad acts testimony that Halvorsen stomped on his children's kitten and when the prosecutor elicited testimony that Halvorsen threatened to kill his mother, if she found about the murders, and to throw her body off the same bridge Halvorsen was accused of throwing the victims' bodies off
Claim 16: Halvorsen's Fourteenth Amendment due process right to a fair trial and his Fifth Amendment right to remain silent were violated when the prosecution used Halvorsen's codefendant to impermissibly comment on Halvorsen's refusal to testify
Claim 17: The prosecutor's numerous and repetitive improper comments during his sentencing phase closing argument deprived Halvorsen of his Fifth and Fourteenth Amendment right to due process
Claim 18: The prosecutor's improper comments during his sentencing phase closing argument deprived Halvorsen of his right to an individualized and reliable sentencing determination, as guaranteed by the Eighth Amendment to the United States Constitution
Claim 19: Halvorsen was denied his Eighth Amendment and federal due process right to notice of information used to obtain a death sentence and the opportunity to rebut that evidence when the prosecutor argued future dangerousness as a basis to impose death, despite providing no notice that he would do so and despite not presenting any evidence of future dangerousness
Claim 20: Halvorsen's death sentences violate the Eighth Amendment to the United States Constitution because no narrowing of death eligibility took place in his case and because the jury was allowed to sentence him to death without finding the existence of an aggravating circumstance enumerated under Kentucky law
Claim 21: Halvorsen was denied his right to due process under the Fourteenth Amendment to the United States Constitution when the trial court erroneously instructed the jury on the sole statutory aggravating circumstance
Claim 22: Halvorsen was denied his right to due process under the Fourteenth Amendment to the United States Constitution when he was sentenced to death despite insufficient evidence to support the sole statutory aggravating circumstance available under Kentucky law
Claim 23: Halvorsen was denied his Fourteenth Amendment due process rights when he was forced to make the Hobson's choice of foregoing his constitutional right to present mitigating evidence of the lack of significant history of prior criminal activity in order to preserve the constitutional right to not have unrelated charges used against him
Claim 24: Halvorsen was denied his Eighth and Fourteenth Amendment right to a reliable determination of whether he should be sentenced to death in a manner that does not tip the scales in favor of death by jury instructions that led the jury to believe less than death could be imposed only if the jury had a reasonable doubt as to whether to impose a death sentence and that Halvorsen had the burden of proving less than death should be imposed
Claim 25: Direct appeal counsel's failure to raise various sentencing phase issues on appeal deprived Halvorsen of his right to effective assistance of appellate counsel as guaranteed under the Sixth and Fourteenth Amendments to the United States Constitution. Direct appeal counsel's deficient performance also serves as cause to excuse any potential barrier to review of claims not raised on direct appeal
Claim 26: Trial counsels' failure to investigate, develop, and present readily available mitigating evidence, including the effects of severe drug abuse and toxic chemicals on Halvorsen's brain, deprived Halvorsen of the effective assistance of counsel at the sentencing phase of his death penalty trial
Claim 27: The Kentucky Supreme Court's failure to conduct meaningful proportionality review deprived Halvorsen of the Eighth Amendment right to procedures that lessen, or at least do not create, a substantial risk of arbitrary and capricious death sentences
Claim 28: The manner in which the Kentucky Supreme Court conducts proportionality review in capital cases does not conform with the Fourteenth Amendment due process clause of the United States Constitution
Claim 29: The Kentucky Supreme Court's refusal to disclose the data it has collected and relies upon in conducting its proportionality review of death sentences violates due process because it allowed Halvorsen's death sentences to be affirmed on evidence for which he had no opportunity to deny or explain
Claim 30: The cumulative effect of the errors in this case rendered Halvorsen's trial fundamentally unfair in violation of his Fourteenth Amendment right to due process of law

By separate motion, Halvorsen attacks the constitutionality of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), which governs the Court's review of his petition. (Doc. # 27).

The Warden filed an answer/response, requesting that this Court deny Halvorsen's petition. (Doc. # 58). In accordance with the Court's order, the Warden also addressed Halverson's claim that AEDPA is unconstitutional. (Doc. # 46). Halvorsen filed his reply/traverse to the Warden's response on March 14, 2011. (Doc. # 73). The parties have filed multiple supplemental briefs (Docs. # 112, 121, 122) and notices of authority (Docs. # 102, 117, 120, 124, 126, 127, 133, 147, 157, 158, 159, 160).

Halverson also filed several discovery-related motions during the pendency of this petition, which the Court will summarize briefly. On August 18, 2009, he filed a motion to authorize him to view sealed documents in possession of the Kentucky Attorney General's Office. (Doc. # 26). According to Halverson, these documents related to his argument that the post-conviction proceedings in Kentucky were unreliable due to insufficient funding. The Court denied that motion. (Doc. # 46). The Fayette Circuit Court did grant a similar motion that permitted Halverson to view and copy the documents. (Doc. # 45).

On June 15, 2011, Halverson filed three motions. The first motion sought to expand the record by including the following additional evidence: (1) affidavits in support of his ineffective assistance of direct appeal counsel claims (Claims 12 and 25); (2) affidavits in support of his claims relating to a lack of expert funding and his juror-Bible claims; (3) an affidavit on the standards of practice governing Kentucky capital cases at the time of Halvorsen's trial; (4) a custody evaluation report completed prior to Halverson's trial; and (5) material safety data sheets concerning chemicals Halverson was exposed to prior to the murders. (Doc. # 98). The Court granted the motion with respect to the affidavits related to Halverson's ineffective assistance of direct appeal counsel claims and denied the rest of the motion. (Doc. # 128).

The second motion sought the following discovery: (1) documents from the Fayette County or Estill County Commonwealth's Attorney's Office or from the Kentucky Attorney General's Office relating to the murder of Charles Murray;[3] (2) documents from the Fayette County Police, the Kentucky State Police, the Fayette County Commonwealth's Attorney's Office, or the Kentucky Attorney General's Office, concerning Halverson's physical and mental condition from the date of his arrest until his trial commenced; and (3) permission to depose his trial counsel, the jurors at his trial, and his state post-conviction counsel. (Doc. # 99). The Court denied Halvorsen's motion because he failed to demonstrate "good cause" necessary for the Court to permit discovery as is required by Habeas Rules 6(a) and (b). (Doc. # 129).

The third motion requested an evidentiary hearing on the following issues: (1) the merits of nine (9) of his claims; (2) the effect of the state post-conviction trial court's denial of funding for expert assistance; (3) whether Claims 1 and 2 have been procedurally defaulted; and (4) further development of facts relevant to whether cause and prejudice exist to excuse any procedural default on fourteen (14) of his claims. (Doc. # 100). After analyzing the motion under the applicable habeas rules and case law, the Court denied relief. (Doc. # 141).

On November 19, 2012, the Court ordered the parties to refrain from filing any further motions, citing the interests of judicial economy and the Court's efforts to adjudicate the merits. (Doc. # 165). The Court then ordered that Halverson's petition stood submitted. Id.

II. STANDARD OF REVIEW

Halverson filed his petition after AEDPA's effective date, and therefore AEDPA governs this Court's review. AEDPA restricts a federal court's review of any claim that was "adjudicated on the merits in [s]tate court proceedings." 28 U.S.C. § 2254(d). This limitation imposes a "highly deferential standard... and demands that state-court decisions be given the benefit of the doubt." Renico v. Lett, 559 U.S. 766, 773 (2010) (internal citations and quotation marks omitted). Under 28 U.S.C. § 2254(d):

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.

However, if a petitioner presented a claim to the state courts and they did not adjudicate it on the merits, a court will apply de novo review. Van v. Jones, 475 F.3d 292, 293 (6th Cir. 2007). The decision reviewed is that of "the last state court to issue a reasoned opinion on the issue." Joseph v. Coyle, 469 F.3d 441, 450 (6th Cir. 2006) (quoting Payne v. Bell, 418 F.3d 644, 660 (6th Cir. 2005)). The Kentucky Supreme Court was the last state court to issue a reasoned opinion on the claims presented in this petition. Halvorsen, 730 S.W.2d 921; Halverson, 2007 WL 2404461; Halvorsen, 258 S.W.3d 1.

A. "Adjudicated on the merits"

Halvorsen attempts to limit the meaning of the term "adjudicated on the merits, " and thus subject his claims to de novo review. He claims that when there is doubt whether a state court adjudicated a claim, federal courts must presume the state did not. He further suggests that there is not an adjudication on the merits (1) if the state court did not issue a "reasoned opinion, " (2) when a state court does not address a prong or subsection of a claim, and (3) when a state court examines only state law, and does not expressly address a defendant's federal constitutional claim.

After Halverson filed his petition, the United States Supreme Court rejected these arguments. In Harrington v. Richter, the Court held that "§ 2254(d) does not require a state court to give reasons before its decision can be deemed to be adjudicated on the merits.'" 131 S.Ct. 770, 785 (2010). The Court reached its decision by noting that "[t]he statute refers only to a decision, ' which resulted from an adjudication.'" Id. at 784. Thus, there does not need to be "an opinion from the state court explaining the state court's reasoning." Id. Further, a state court does not need to explain that it adjudicated a claim "on the merits." Rather, "[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." Id. at 784-85. The presumption holds unless there is a contrary indication or a showing that "there is some other explanation for the state court's decision." Id. at 785. And when a state court rejects a claim, it does not need to analyze each element of the claim for there to be an adjudication on the merits, because "§ 2254(d) applies when a claim, ' not a component of one, has been adjudicated." Id. at 784.

The Supreme Court has also rejected Halvorsen's argument that there is not an adjudication on the merits when a state court examines state law and does not expressly address a defendant's federal constitutional claim. In Johnson v. Williams, the Supreme Court held that "[w]hen a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits." 133 S.Ct. 1088, 1096 (2013). The Court based its conclusion on its recognition that "it is not the uniform practice of busy state courts to discuss separately every single claim to which a defendant makes even a passing reference." Id. at 1094. The Court then explained why state courts customarily do not discuss every claim a defendant raises: (1) state precedent at times fully incorporates a related federal constitutional right, and therefore the state court's discussion of state law is sufficient to cover the federal claim; (2) the defendant made only a fleeting reference to a Federal Constitutional provision insufficient to raise a federal claim; or (3) the federal claim is too insubstantial to merit discussion. Id. at 1094-95. The presumption that a state adjudicated on the merits a rejected federal claim is not irrebuttable, but it is a "strong one, " which can be overcome only in "unusual circumstances." Id. at 1096. To overcome the presumption, a petitioner typically must show that the state court "inadvertently overlooked" the federal claim. See id. at 1097. Absent that showing, this Court must presume that a rejected federal claim receives § 2254(d) deferential review.

B. Section 2254(d)(1)

Section 2254(d)(1) restricts a federal court's review of claimed legal errors. A federal court shall not grant habeas relief based on legal error unless the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Clearly established Federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Yarborough v. Alvarado, 541 U.S. 652, 660-661 (2004) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). It includes "not only bright-line rules but also the legal principles and standards flowing from precedent." Mason v. Mitchell, 543 F.3d 766, 772 (6th Cir. 2008).

While the "contrary to" and "unreasonable application of" prongs are similar, they require a distinct analysis. A state court decision is "contrary to" Supreme Court precedent when "the state court confronts facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from its precedent[, ]" or when "the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases." Williams, 529 U.S. at 406-07.

A state court decision is an "unreasonable application of" Supreme Court precedent when a "state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413). The state court's application of law "must be more than incorrect or erroneous"; it must be "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). In other words, "[i]f fair minded jurists could disagree" about the state court's decision, habeas relief should not be issued. Yarborough, 541 U.S. at 664. Finally, a court must consider the rule's specificity: the more general the rule, the "more leeway courts have in reaching outcomes in case-by-case determinations." Id.

C. Section 2254(d)(2)

Section 2254(d)(2) restricts a federal court's review of claimed factual errors. A habeas court may grant relief on a factual error claim only if the state court made "an unreasonable determination of facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254. A "[s]tate-court's factual findings... are presumed correct; the petitioner has the burden of rebutting the presumption by clear and convincing evidence.'" Rice v. Collins, 546 U.S. 333, 338 (2006) (citing § 2254(e)(1)). Because the state court's factual determination must be unreasonable, it is no matter that a "federal habeas court would have reached a different conclusion in the first instance... that does not suffice to supersede the trial court's... determination.'" Wood v. Allen, 558 U.S. 290, 309 (2010) (quoting Rice, 546 U.S. at 341-42). Even if the petitioner shows that the state court has made an unreasonable determination of fact, he still must show that the state court based its decision on that unreasonable determination before habeas relief is warranted. Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011).

III. AEDPA DOES NOT VIOLATE SEPARATION OF POWERS

Halverson argues that 28 U.S.C. § 2254(d)(1) is unconstitutional because it violates the separation of powers and operates as a suspension of the writ of habeas corpus. He contends that § 2254(d)(1) interferes with a federal court's duty to interpret the Constitution and usurps a federal court's jurisdiction to grant habeas relief. In Halverson's codefendant's petition, this Court recently held that AEDPA does not violate separation of powers. Willoughby v. Simpson, No. 08-179-DLB, 2014 WL 4269115, *13 (E.D. Ky. Aug. 29, 2014). Because the Court's analysis in Willoughby is directly applicable to Halverson's claim, the Court will reference it below:

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.Appx. 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).
*** *** *** *** ***
In Bowling v. Parker, 882 F.Supp.2d 891 (2012), Judge Thapar, United States District Court Judge for the Eastern District of Kentucky, recently...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.
Id.
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.

Willoughby, 2014 WL 4269115, at *12-13.

Halverson also argues that § 2254(d)(1) operates as a suspension of the writ. Section 2254(d)'s plain language contradicts that argument. As the United States Supreme Court recently noted:

As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther.

Harrington, 131 S.Ct. at 786 (emphasis added) (citing Felker v. Turpin, 518 U.S. 651, 664 (1996)). That language in Harrington all but forecloses Halverson's argument. AEDPA preserves a federal court's ability to issue a writ of habeas corpus. 28 U.S.C. § 2254(a) ("[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State...."). On a habeas petition, § 2254(d)(1) permissibly limits both the information a court can consider and the remedy available; it does not act as a suspension of the writ nor dictate that a court reach a certain result. Because § 2254(d)(1) is constitutional, this Court will apply it to Halverson's claims that the state court "adjudicated on the merits."

IV. ANALYSIS

Claims 1 and 2 - Juror misconduct

In his first set of claims (Claims 1 and 2), Halverson argues that he is entitled to habeas relief because the jury impermissibly used and relied on the Bible. Specifically, Halverson accuses Juror Garlington of incorporating the Bible into the jury's guilt and penalty phase deliberations. Halverson contends that the jury's conduct violated his Sixth Amendment right to an impartial jury. Further, he argues that it violated his Eighth Amendment rights to (1) heightened reliability in the jury's decision to impose the death penalty, (2) guided discretion in the sentencing determination, (3) an individualized sentencing determination, and (4) a jury that does not believe final responsibility for the death penalty rests somewhere other than where the law authorizes. As relief, Halverson requests either a writ of habeas or an evidentiary hearing to determine the extent of the jury's use of the Bible and any prejudice that resulted. This Court has already denied Halverson's request to have an evidentiary hearing on Claims 1 and 2 because Halverson did not meet 28 U.S.C. § 2254(e)(2)'s requirements. (Doc. # 141). Therefore, this Opinion will discuss Claims 1 and 2 only as they relate to Halverson's request for habeas relief. Because Claims 1 and 2 are procedurally defaulted and Halverson has not established cause to excuse the default, the Court will not review them on the merits.

A. Applicable law

Under the procedural default doctrine, a federal court is generally barred from reviewing a petitioner's federal constitutional claim "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." Munson v. Kapture, 384 F.3d 310, 313-14 (6th Cir. 2004) (internal citations and quotation marks omitted). The Sixth Circuit uses a four-part test to determine whether a petitioner's 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 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 state 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 the 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.

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). In conducting this inquiry, a court looks to the "last explained state court judgment[]' to determine whether relief is barred on procedural grounds." Stone v. Moore, 644 F.3d 342, 346 (6th Cir. 2011) (quoting Muson, 384 F.3d at 315).

B. Halverson's claim is procedurally defaulted

In 2004, Halvorsen filed a CR 60.02 motion in Fayette Circuit Court raising the issues presented in Claims 1 and 2. (Brief for Appellant, 06-SC-100 at 9-24). Under CR 60.02(f), a court may relieve a party from a final judgment for any "reason justifying relief, " so long as the motion is made "within a reasonable time." The trial court has discretion to determine whether a defendant filed the motion within a reasonable time. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983). The Fayette County Circuit Court denied Halverson's motion because he did not file it timely, and the Kentucky Supreme Court affirmed. Halverson, 2007 WL 2404461, at *1.

Halverson argues that Claims 1 and 2 are not procedurally defaulted because the Kentucky Supreme Court incorrectly upheld the trial court's ruling that he did not file his CR 60.02 motion within a "reasonable time." Halverson asserts that he filed his motion within a reasonable time because he filed it within one year of discovering the facts that formulated the basis for his claim. Specifically, Halverson contends that 2003 was the first time that he could have discovered the Bible's alleged during deliberations, "when Juror Garlington... admitted that he carried a Bible with him at all times during the trial - including in the deliberation room - and that he prayed with the jurors daily during the trial." (Doc. # 25 at 78). By arguing that the Kentucky Supreme Court erred in ruling that he did not file his motion within a "reasonable time, " Halverson asserts that there is not an adequate and independent basis for the state court's decision.

The Kentucky Supreme Court held that Halverson did not file his motion timely for three reasons. First, Halverson filed his motion "over twenty years after the trial, " which is "prima facie evidence to support the trial court's conclusion that Halvorsen's... motion[] [was] not, in fact, filed within a reasonable time." Halverson, 2007 WL 2404461, at *2. Second, the Court rejected Halverson's argument that he could not have learned of any alleged impropriety until 2003:

Halvorsen and Willoughby contend that they were unable to make their allegations regarding Juror Garlington's alleged misconduct sooner because they did not learn of it until November 2003 when Garlington agreed to be interviewed by the DPA investigator. 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.

Id. Third, the Court recognized that Kentucky courts often deny CR 60.02 motions that are filed sooner after trial than Halverson's. Id. at *3.

The Kentucky Supreme Court's decision denying Halverson's CR 60.02 motion as untimely is an adequate and independent basis for its judgment. A state procedural rule can serve as an adequate and independent basis for a state-court decision if it is "firmly established and regularly followed." Walker v. Martin, 131 S.Ct. 1120, 1127-28 (2011) (internal citation omitted). As the Kentucky Supreme Court noted, Kentucky courts routinely reject CR 60.02 motions due to defendants not filing them within a reasonable time. Willoughby, 2007 WL 2404461, at *3 (citing Gross, 648 S.W.2d at 858, which held that the trial court did not abuse its discretion in finding that a CR 60.02 motion filed five years after conviction was not filed in a reasonable time); see also 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 five years after judgment was entered); Stoker v. Commonwealth, 289 S.W.3d 592, 597 (Ky. App. 2009) (ruling that a CR 60.02 motion filed eighteen years after conviction was not filed in reasonable time); Reyna v. Commonwealth, 217 S.W.3d 274, 276 (Ky. App. 2007) (holding that a defendant's CR 60.02 motion filed four years after he entered a guilty plea was not filed timely). Thus, the state court's ruling in this case that Halverson did not file his motion timely is "firmly established and regularly followed" in Kentucky, and therefore the ruling serves as an adequate and independent basis for the state court's judgment.

Reviewing the record shows that the first three factors for procedural default are met: (1) Halverson failed to comply with a state procedural rule, (2) the state courts actually enforced the CR 60.02 timeliness requirement, and (3) CR 60.02 is an "adequate and independent" basis for the state-court's decision. Therefore, unless Halverson can show "cause" for not following the state procedural rule, this Court is foreclosed from reviewing Claims 1 and 2 on the merits.

C. Halverson has not established cause for his procedural default

Cause for a procedural default exists when a petitioner "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). A petitioner can show the impediment by demonstrating "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. (internal citations and quotation marks omitted).

Halverson argues that there is cause to excuse procedural default for Claims 1 and 2 because he was not able to conduct effective juror interviews prior to 2003. Halverson suggests that he was not able to effectively interview jurors because some of the jurors declined to be interviewed, those that were interviewed did not mention the Bible's use during deliberations, and local rules prevented him from interviewing jurors.

Halverson's arguments are unavailing. The trial court gave Halverson permission to interview the jurors in 1985. Halverson, 2007 WL 2404461, at *2. But as the Kentucky Supreme Court noted, "[a]fter trial, a juror is under no obligation to discuss his or her jury service with either the Commonwealth or defense." Id. Many jurors exercised their right to refuse an interview, but two granted interview requests. Id. Thus, it is inconsequential that a local rule impeded Halverson from interviewing jurors. And if the jurors who were interviewed did not mention the Bible's alleged use, it could be because Halverson's counsel never asked the question, because the jurors thought it too insignificant to mention, or because the Bible played no role during their deliberations. Either way, there was no "interference by officials [that] made compliance impracticable." See Murray, 477 U.S. at 488.

Further, as noted the Kentucky Supreme Court noted, Halverson could have discovered the basis for the jury misconduct claim from Juror Garlington's conduct at trial. Halverson, 2007 WL 2404461, at *2. During voir dire, Juror Garlington made known that he was a pastor and shared his religious views. In response to being asked whether he ever debated against the death penalty, 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). He then 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 also expressed his religious views at the conclusion of trial:

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). As the record demonstrates, the first time Halverson could have discovered the facts to support Claims 1 and 2 was not in 2003, but during his trial. Halverson has not demonstrated cause for the procedural default of Claims 1 and 2; therefore, Claims 1 and 2 are procedurally defaulted.

Claim 3 - The trial court's decision not to excuse three jurors for cause

In Claim 3, Halverson contends that the trial court's failure to excuse three jurors for cause violated his Sixth Amendment right to trial by an impartial jury and his Eight Amendment right to a jury that would consider and give effect to all mitigating evidence. As relief, Halverson asks for a new trial or a new sentencing phase. Because two of the jurors did not sit on the jury and because the trial court's decision not to excuse the third juror was reasonable, Claim 3 is denied.

A. State court decision

Halverson raised this claim on direct appeal. (Brief for Appellant, 84-SC-39 at 49-58). The Kentucky Supreme Court rejected the claim when it stated "[w]e have reviewed the other assertions of error and are of the opinion none of them merits comment." Halvorsen, 730 S.W.2d at 928. Halverson concedes that he cannot overcome the presumption that a when a state court rejects a federal claim the claim has been adjudicated on the merits. (Doc. # 73 at 95). Thus, in order for this Court to grant habeas relief on Claim 3, Halverson must demonstrate that the state court's adjudication of this claim "resulted in a decision that was contrary to, or involved an unreasonable application of clearly established" Supreme Court law. 28 U.S.C. § 2254(d).

B. Applicable law

The Sixth Amendment guarantees a defendant a jury that "will consider and decide the facts impartially and conscientiously apply the law as charged by the court." Adams v. Texas, 448 U.S. 38, 45 (1980). To be impartial, a juror must be able to follow the law. Wainwright v. Witt, 469 U.S. 412, 423 (1985). A trial judge does not have to be right in determining that a juror is impartial, his decision just has to be "fairly supported by the record." Bowling v. Parker, 344 F.3d 487, 519 (6th Cir. 2003) (citing Witt, 469 U.S. at 433) (internal citation and quotation marks omitted).

1. Jurors Ogden and Distler

Halverson argues that the trial court should have excused Juror Ogden for cause because Ogden's responses during voir dire demonstrated that Ogden would hold it against Halverson if he did not testify. Halverson contends that the trial court should have excused Juror Distler for cause because she said in voir dire that illegal drug use would negatively impact her impartiality and that most violent crimes deserve the death penalty.

Halverson's claims with respect to Ogden and Distler fail because neither sat on the jury; Halverson dismissed both by exercising his peremptory challenges. If the jury that is ultimately impaneled is impartial, "the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated." Ross v. Oklahoma, 487 U.S. 81, 88 (1988). A court deciding whether a jury was impartial looks only to "the jurors who ultimately sat." Id. at 86. Because Ogden and Distler did not sit on the jury, the trial court's decision not to strike them for cause is irrelevant to Halverson's Sixth Amendment claim.

Halverson argues that Ross doesn't apply, because under Kentucky law he is entitled to relief for using a peremptory challenge to excuse a juror that the trial court should have excused for cause. However, on habeas review, the issue is not whether Kentucky law warranted reversing Halverson's conviction, but whether he is being held "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."). The Sixth Circuit has not recognized an exception to Ross for habeas claims arising in Kentucky. In Bowling v. Parker, a petitioner convicted in Kentucky state court brought a habeas claim because he used three peremptory challenges on jurors that he argued the trial court should have dismissed for cause. 344 F.3d at 519. In rejecting the petitioner's claim, the Sixth Circuit cited Ross for its holding that there was "no constitutional violation here." Id. at 521. Likewise, Halverson's argument that he had to use a preemptory challenge on Ogden and Distler fails to raise a constitutional issue.

2. Juror Garlington

Halverson argues that the trial court should have dismissed Garlington for cause because he made statements during voir dire that showed his inability to impose less than the death penalty. Specifically, Halverson points to Garlington's answer when asked in which type of case he would impose the death penalty: "[B]rutal murder. By God, just walk up and just shoot somebody, you know and kill him." (TE 373).

A court should excuse a juror for cause when his views on capital punishment would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Adams, 448 U.S. 38 at 45. Because the Kentucky Supreme Court adjudicated this claim on the merits, this Court can grant relief only if the Kentucky Supreme Court's judgment that Garlington was impartial "involved an unreasonable application of clearly established" Supreme Court law. 28 U.S.C. § 2254(d).

The Kentucky Supreme Court was not objectively unreasonable when it affirmed the trial court's decision not to excuse Garlington for cause. While Garlington made statements that called into question his ability to serve on the jury, he also made statements from which the Kentucky Supreme Court could reasonably conclude that he was an impartial juror. Garlington stated that he would not automatically vote for the death penalty, he would consider voting for a sentence of twenty years to life in prison, and he would consider mitigation and justification. (TE 365, 368-69, 372, 381-82). These statements all cut against Halverson's argument that Garlington was unable to impose less than the death penalty. Under § 2254(d)'s circumscribed standard of review, this Court rejects Halverson's claim that Juror Garlington should have been dismissed for cause.

Claim 4 - Prosecutorial Misconduct

In Claim 4, Halverson argues that he is entitled to relief because the prosecutor made comments during the guilt phase that deprived him of due process. Halverson specifically points to the following: (1) the prosecutor's comments regarding the robbery charge; (2) the prosecutor's statement that the Commonwealth gave the jury all the evidence that it could; (3) the prosecutor alluding to other crimes and bad acts; and (4) the prosecutor's statements on how the bullets entered the victims' bodies. Because the Kentucky Supreme Court was not objectively unreasonable in determining that these comments did not deprive Halverson of a fair trial, Claim 4 is denied.

A. State court decision

Halverson raised prosecutorial misconduct on direct appeal. (Brief for Appellant, 84-SC-39 at 132-38). The Kentucky Supreme Court denied the claim when it stated "[w]e have reviewed the other assertions of error and are of the opinion none of them merits comment." Halvorsen, 730 S.W.2d at 928. Because the state court rejected the claim, there is a presumption the state court adjudicated it on the merits. Harrington, 131 S.Ct. at 785. Halverson argues that he can overcome that presumption because it is more likely that the state court did not decide the claim on its federal merits. Halverson points out that the Kentucky Supreme Court analyzed his arguments about improper comments during the sentencing phase, but not his arguments about improper comments during the guilt phase. Further, Halverson states that because the Kentucky Supreme Court cited only state law in denying his sentencing phase claim, it must have relied only on state law in addressing his guilt phase claim.

As discussed above, after Halverson filed his petition and reply, the United States Supreme Court addressed nearly this exact argument and rejected it. In Johnson v. Williams, the Supreme Court held that "[w]hen a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits." 133 S.Ct. at 1096. This presumption is a "strong one, " which can be overcome only in "unusual circumstances." Id. And if state law "is at least as protective as the federal standard-then the federal claim may be regarded as having been adjudicated on the merits." Id.

Halverson has not overcome the strong presumption that the Kentucky Supreme Court adjudicated on the merits his claim of prosecutorial misconduct during the guilt phase. A review of Kentucky Supreme Court cases around the time that the court rejected Halverson's appeal shows that Kentucky followed United States Supreme Court law in evaluating prosecutorial misconduct claims. See Slaughter v. Commonwealth, 744 S.W.2d 407, 411-12 (Ky. 1987) (citing Donnelly v. DeChristoforo, 416 U.S. 637 (1974), in analyzing a claim of prosecutorial misconduct during closing arguments); Smith v. Commonwealth, 734 S.W.2d 437, 445 (Ky. 1987) (citing Smith v. Phillips, 445 U.S. 209 (1982), in addressing a prosecutorial misconduct claim). Because Kentucky state law was "at least as protective as the federal standard, " Halverson's claim of prosecutorial misconduct during the guilt phase " may be regarded as having been adjudicated on the merits." See Johnson, 133 S.Ct. at 1096. Therefore, Halverson must demonstrate that the state court's adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of clearly established" Supreme Court law. 28 U.S.C. § 2254(d).

B. Applicable law

A prosecutor's comments do not infringe on a defendant's constitutional rights when they are "undesirable or even universally condemned." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation omitted). Rather, they must "so infect[] the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly, 416 U.S. at 643. A prosecutor's comments render a trial fundamentally unfair and deny a defendant due process when they likely have "a bearing on the outcome of the trial in light of the strength of the competent proof of guilt." Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (citing Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982)).

The Sixth Circuit uses a two-part test to determine whether a prosecutor's comments deprived a defendant of due process. Moore v. Mitchell, 708 F.3d 760, 799 (6th Cir. 2013). First, a court determines whether the comments were improper. Id. If they were, the Court considers four factors to decide if the comments were flagrant: "(1) the likelihood that the remarks of the prosecutor tended to mislead the jury or prejudice the petitioner, (2) whether the remarks were isolated or extensive, (3) whether the remarks were deliberately or accidentally made, and (4) the total strength of the evidence against the defendant." Id. (quoting Bates v. Bell, 402 F.3d 635, 641 (6th Cir. 2005)).

C. Analysis

1. Robbery charge comment

Halverson argues that the prosecutor improperly told the jury that Halverson was guilty of robbery, despite the trial judge granting a directed verdict on that issue. Halverson states that in doing so the prosecutor expressed his personal opinion, made statements that had no basis in the record, and argued Halverson was guilty of an offense despite knowing that the evidence did not support guilt.

The Court must view the prosecutor's comments in the context of the entire record. United States v. Beverly, 369 F.3d 516, 543 (6th Cir. 2004) ("In examining prosecutorial misconduct, it is necessary to view the conduct at issue within the context of the trial as a whole."). The grand jury indicted Halverson for robbery. Although Hutchens testified that she searched and took property from the victims after Halvorsen and Willoughby stopped shooting, Kentucky law does not allow one to be found guilty of robbery for taking property from a corpse. Accordingly, the trial court granted a directed verdict for Halverson.

Reviewing the record it is clear that the prosecutor's comments about the robbery charge were made to rebut arguments made by defense counsel. During closing arguments, Willoughby's counsel was the first to bring up the robbery charge:

Well now when we started this case, there were six charges presented to you that were going to be proven beyond all doubt. Ladies and gentlemen, you heard the Judge say that he'd dismissed two of those charged, because there just wasn't evidence to substantiate it. They're gone. They not only cannot be proven to you beyond all doubt, they didn't even meet the first standard. Does that, therefore, mean you need to ask a question about the rest of the charges?

(TE 2239-40) (emphasis added). The prosecutor responded to defense counsel by stating the following:

Since Mr. Maloney brought it up, I want to mention about the robbery charge, which is no longer before you, because he implied to you or suggested to you that because I said that we would prove this robbery beyond any doubt and that isn't before you, that somehow you've got to question this entire case. Well ladies and gentlemen, I told you that the case would be proven to you because it would be shown that the defendants took the personal property of the victims and they did, and when I say they I - I include these defendants and I include Susan Hutchens, who's a defendant in this case, although not here today, and they did take it.
Well, in some of these legal things that go on in the court - in the court proceeding, the Judge decides - decided that that is not robbery, because it wasn't proven that that happed before they were killed as opposed to after they were killed. We may have a difference of opinion, but that's not the point. The point is that it was proven to you the facts. It was proven to you that they took the property and that was proven to you beyond all doubt. Now if there is a discrepancy about the law of robbery, it really isn't relevant to whether or not this case of murder is proven to you beyond any doubt.

(TE 2256-57). As evidenced by the transcript, defense counsel brought up the directed verdict on the robbery charge to cast doubt on the remaining charges; the prosecutor's comments about the robbery charge were made to rebut that argument.

When considered in this context, the prosecutor's statements were proper - and they certainly did not rise to the level of rendering the trial unfair. A prosecutor has "wide latitude' during closing argument to respond to the defense's strategies, evidence and argument." Bedford v. Collins, 567 F.3d 225, 233 (6th Cir. 2009) (quoting United States v. Henry, 545 F.3d 367, 377 (6th Cir. 2008)). Here, the prosecutor's comments about the robbery charge were in response to defense counsel's argument that the directed verdict on the robbery charge meant that the jury "need[ed] to ask a question about the rest of the charges." (TE 2240). The prosecutor's response pointed out that to establish the robbery charge he had to prove that the defendants took property from the victims, that the court decided that there was not a robbery because the victims were dead when the property was taken, and that the directed verdict on the robbery charge had no bearing on the murder charge. All of these statements were true, isolated, and would have clarified rather than confused the jury. And considering the strength of the evidence in this case, it is not rational to think that these statements had any bearing on the jury's verdict. Thus, the Kentucky Supreme Court's denial of this claim was reasonable.

2. Trial by innuendo

Halverson argues that the prosecutor impermissibly suggested additional evidence of guilt by telling the jury "we gave you all the proof... that we could give to you." (TE 2254). He suggests that this comment establishes prosecutorial misconduct that violated his due process rights.

Like the prosecutor's statements about the robbery charge, this comment was proper when viewed in context. See United States v. Wells, 623 F.3d 332, 338 (6th Cir. 2010) (holding that a prosecutor's comments must be considered in proper context to determine whether they were likely to mislead the jury). Below is the prosecutor's statement in full:

We put on a lot of proof in this case, a lot of it which now Mr. Jarrell can call window dressing, because it may not seem necessary in light of the fact that Mitchell Willoughby has now testified and given us some additional insight into what went on. But we didn't rely on that happening; We didn't figure he was going to do that; We didn't know what he was going to say. So we gave you all the proof that there was, all the proof that is that we could - that we could give to you.

(TE 2254). Rather that suggesting additional evidence of guilt, the prosecutor was apparently explaining why the Commonwealth put on the evidence that it did and why its evidence differed from Willoughby's testimony: "we didn't rely on [Willoughby testifying];... [w]e didn't know what he was going to say." Id. Like the robbery charge, this comment was isolated, true and clarified for the jury why the prosecutor put on certain evidence. And again, the evidence of Halverson's guilt was overwhelming. Thus, it was not unreasonable for the Kentucky Supreme Court to conclude that this comment did not affect the trial's outcome.

3. Comment on other crimes

Halverson claims that the prosecutor suggested that he committed other crimes for which he was not charged. Specifically, Halverson points to the following question the prosecutor posed to the jury: "to what extent did they [Halverson and Willoughby] have to go to come up with the drugs?" (TE 2257).

Viewed in the context of the trial, this statement was not improper and certainly did not render the trial fundamentally unfair. The prosecutor's comment was a response to Halverson and Willoughby's trial strategy. Throughout the trial, Halverson and Willoughby highlighted their drug use leading up to the murders. Both defense attorneys used the drug use as part of their defense in closing arguments. (TE 2223-24, 2239-40). Willoughby testified extensively on the drug use. (TE 1922-26). During his testimony, Willoughby admitted that he regularly carried a gun because some of the "dope dealers" he purchased from were "pretty shady characters." (TE 1922). Because the defendants introduced evidence of their drug use and used that drug use as part of their trial strategy, any comment on it was proper. See Bedford, 567 F.3d at 233 (holding that the prosecution is allowed to respond to the defense's strategies and evidence). The prosecutor's question, "to what extent did they [Halverson and Willoughby] have to go to come up with the drugs?, " was a fair response to Willoughby's testimony that his dealings with "shady" dope dealers caused him ...


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