Argued: October 19, 2016
from the United States District Court for the Western
District of Kentucky at Paducah. No. 5:11-cv-00031-Thomas B.
Russell, District Judge.
J. Burke, DEPARTMENT OF PUBLIC ADVOCACY, La Grange, Kentucky,
Bradley Moore, OFFICE OF THE KENTUCKY ATTORNEY GENERAL,
Frankfort, Kentucky, for Appellee.
J. Burke, Krista A. Dolan, DEPARTMENT OF PUBLIC ADVOCACY, La
Grange, Kentucky, for Appellant.
Hays Lawson, OFFICE OF THE KENTUCKY ATTORNEY GENERAL,
Frankfort, Kentucky, for Appellee.
Before: BOGGS, GRIFFIN, and WHITE, Circuit Judges.
1986, Petitioner William Thompson, having served twelve years
of a life sentence for an unrelated murder for hire, killed
his prison-farm supervisor, stole his wallet, keys, and
pocketknife, and fled. Thompson was captured at a bus station
in Madisonville, Kentucky, and charged with murder, robbery,
and escape, for which he was tried by jury and sentenced to
death, twenty years, and ten years, respectively. Because the
trial court abused its discretion in refusing to excuse
certain jurors from the case and because Thompson's prior
conviction for murder was improperly used as an aggravating
circumstance, Thompson was granted a retrial on direct
appeal. Thompson v. Commonwealth, 862 S.W.2d 871,
877 (Ky. 1993). In 1995, on retrial, Thompson pleaded guilty
to all three counts as part of a plea agreement to avoid jury
sentencing. The Commonwealth sought jury sentencing anyway,
the trial court denied the request, the Commonwealth
appealed, and the court of appeals ruled that the
Commonwealth was entitled to jury sentencing despite the plea
agreement. Commonwealth v. Thompson, No.
95-CA-0136-MR (Ky. Ct. App. June 10, 1996) (unpublished). The
jury returned a death-penalty verdict, finding two
aggravating factors: (1) Thompson had previously committed a
murder, and (2) Thompson committed the present murder against
a prison guard while in prison. The trial court accordingly
sentenced Thompson to death.
state post-conviction habeas corpus proceedings, Thompson
succeeded on his claim that the trial court had failed to
hold a mandatory competency hearing. Thompson v.
Commonwealth, 56 S.W.3d 406, 407, 410 (Ky. 2001).
Thompson was unsuccessful on all his other state claims for
relief, however, and after the trial court held the required
competency hearing and found that Thompson had been competent
to plead guilty, the Kentucky Supreme Court affirmed
Thompson's convictions and sentences. Thompson v.
Commonwealth, 147 S.W.3d 22, 34, 55 (Ky. 2004),
reh'g denied (Nov. 18, 2004), cert.
denied, 545 U.S. 1142 (2005). The Kentucky Supreme Court
also affirmed the denial of Thompson's motion to vacate,
set aside, or correct his sentence under Ky. R. Crim. P.
11.42. Thompson v. Commonwealth, No.
2009-SC-000557-MR, 2010 WL 4156756, at *1, *5 (Ky. Oct. 21,
2010, as modified on denial of reh'g, Jan. 20, 2011)
("Rule 11.42 proceedings"). Thompson then filed a
federal habeas corpus petition raising seven claims:
(1) the jury considered extraneous evidence;
(2) trial counsel rendered ineffective assistance;
(3) the prosecutor made improper closing arguments to the
(4) the trial court improperly restricted Thompson's voir
(5) in violation of Mills v. Maryland, 486 U.S. 367,
384 (1988), the penalty-phase jury instructions implied that
certain mitigators had to be found unanimously to be
(6) the Kentucky Supreme Court's proportionality-review
process is unconstitutional; and
(7) the cumulative effect of the errors at trial denied
Thompson his constitutional rights.
R. 13 at 12-59.
district court heard and denied Thompson's federal habeas
petition, from which Thompson now appeals on the first,
fifth, and sixth grounds. Thompson claims that (1) the jury
improperly considered extraneous evidence when it discussed a
news account about another violent criminal who had committed
a murder after earning parole at age seventy; (2) the jury
instructions violated Mills v. Maryland, 486 U.S.
367 (1988) because they stated that the "verdict"
had to be returned unanimously but did not expressly state
that unanimity was not required in order for a juror
to find a mitigating factor, potentially leading jurors
wrongly to infer that finding at least some mitigating
factors also required unanimity; and (3) the Kentucky Supreme
Court did not adequately conduct a
comparative-proportionality review in assessing whether
Thompson's death sentence was excessive or
disproportionate to the penalty imposed in similar cases. For
the reasons that follow, we affirm.
threshold matter, the Antiterrorism and Effective Death
Penalty Act ("AEDPA") of 1996, which amended 28
U.S.C. § 2254, governs our review of the Kentucky
Supreme Court's denial of post-conviction relief because
Thompson filed his federal petition after AEDPA's
effective date, even though Thompson's conviction arises
out of a 1986 homicide. See Lindh v. Murphy, 521
U.S. 320, 326-27 (1997). AEDPA sets forth "an
independent, high standard to be met before a federal court
may issue a writ of habeas corpus to set aside state-court
rulings." Uttecht v. Brown, 551 U.S. 1, 10
(2007). Under AEDPA, for any "claim that was adjudicated
on the merits" by Kentucky state courts, we defer to the
state courts' factual determinations, we may not expand
the record beyond that which the state courts reviewed,
Cullen v. Pinholster, 563 U.S. 170, 181 (2011), and
we may grant habeas relief only if the adjudication of that
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) (emphases added).
"A state court's determination that a claim lacks
merit precludes habeas relief so long as 'fairminded
jurists could disagree' on the correctness of the state
court's decision." Harrington v. Richter,
562 U.S. 86, 101 (2011) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)).
"contrary to" and "unreasonable
application" clauses of § 2254(d)(1) are
independent of each other: a state-court decision is
"contrary to" clearly established federal law if
the state court arrives at a conclusion opposite to that
reached by the Supreme Court on a question of law, or if the
state court decides a case differently than the Supreme Court
has on a set of materially indistinguishable facts.
Williams v. Taylor, 529 U.S. 362, 405 (2000). A
state court's ruling is an "unreasonable
application" of clearly established federal law, on the
other hand, "if the state court identifies the correct
governing legal rule" or principle from Supreme Court
precedent but "applies it to the facts of the particular
state prisoner's case" in an unreasonable manner,
including by "unreasonably extend[ing]" or
"unreasonably refus[ing] to extend" the principle.
Id. at 407. In both cases, in ...