ALICE M. BATCHELDER, Chief Judge.
In 1992, a Tennessee jury convicted Petitioner-Appellant Henry Hodges of first-degree murder and sentenced him to death. The state courts upheld the conviction and sentence on appeal and denied Hodges's petition for post-conviction relief. Hodges then petitioned for federal habeas relief, which the district court denied. Hodges now appeals that denial to this court. For the following reasons, we AFFIRM the district court's denial of Hodges's habeas petition.
The Tennessee Supreme Court summarized the facts of this case as follows:
Tennessee v. Hodges, 944 S.W.2d 346, 349-51 (Tenn.1997) (footnotes omitted).
Hodges was convicted of first-degree murder and sentenced to death in January 1992. The Tennessee Court of Criminal Appeals affirmed his conviction and sentence in 1995. Tennessee v. Hodges, No. 01-C-01-9212-CR00382, 1995 WL 301443 (Tenn.Crim.App. May 18, 1995). The Tennessee
Hodges filed a petition for post-conviction relief in December 1997, and the trial court denied relief in February 1999. The Tennessee Court of Criminal Appeals affirmed that decision in 2000. Hodges v. Tennessee, No. M1999-00516-CCA-R3-PD, 2000 WL 1562865 (Tenn.Crim.App. Oct. 20, 2000). The Tennessee Supreme Court denied an application for permission to appeal in March 2001.
Hodges filed a petition to proceed in forma pauperis in federal district court in May 2001, a provisional petition for a writ of habeas corpus in July 2001, and an amended petition in March 2002. Hodges raised 32 claims and subclaims in his amended habeas petition. The district court granted some of Hodges's discovery requests, denied others, and denied Hodges's request for an evidentiary hearing. In March 2008, the district court denied Hodges's habeas petition. Hodges applied for a Certificate of Appealability ("COA"), and the district court granted a COA as to all claims.
This court reviews de novo a district court's legal conclusions and mixed questions of law and fact, and reviews its factual findings for clear error. Lucas v. O'Dea, 179 F.3d 412, 416 (6th Cir.1999). Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a district court may not grant a habeas petition with respect to any claim that was adjudicated on the merits in the state courts unless the adjudication resulted in a decision that: (1) was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court; or (2) was based on an unreasonable determination of the facts in light of the evidence presented to the state courts. 28 U.S.C. § 2254(d). Under the "contrary to" clause, a federal habeas court may grant the writ 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, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the petitioner's case. Id. To obtain habeas relief, "a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011).
To analyze whether a state court decision is contrary to or an unreasonable application of clearly established Supreme Court precedent, courts look only to the holdings of the Supreme Court's decisions as of the time of the relevant state court decision. Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Courts consider lower court decisions to the extent they shed light on the analysis of Supreme Court holdings to determine whether a legal principle had been clearly established. Hill v. Hofbauer, 337 F.3d 706, 716 (6th Cir.2003). Finally, the state court's factual findings are presumed correct unless rebutted by the habeas petitioner by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir.2004).
Before this court, Hodges raises four issues: (1) whether the state courts reasonably applied federal law in determining that certain restrictions imposed on voir dire by the trial court did not interfere with Hodges's constitutional right to a fair and impartial trial; (2) whether the district court properly denied Hodges's requests for discovery, an evidentiary hearing, and habeas relief on a claim of juror misconduct; (3) whether the state courts reasonably applied federal law in determining that Hodges's trial counsel were not ineffective for advising Hodges to plead guilty to murder and aggravated robbery; and (4) whether the district court properly denied an evidentiary hearing and habeas relief on Hodges's claims of incompetency at trial and ineffective assistance of counsel at sentencing. Hodges failed to brief the remaining claims for which the district court granted a COA and, therefore, has waived them. See Fed. R.App. P. 28(a)(9)(A); Landrum v. Mitchell, 625 F.3d 905, 913 (6th Cir.2010).
Hodges alleges that he was denied his right to a fair and impartial jury when the trial court refused to allow his attorneys to ask prospective jurors whether they could consider a life sentence for a defendant with a prior conviction for murder. Specifically, defense counsel repeatedly attempted to ask the following question or a variation thereof: "Could you impose a life sentence for somebody who has been convicted of first degree murder twice?" The trial court repeatedly sustained the prosecution's objections to the question.
Hodges raised this claim on direct appeal. The Tennessee Court of Criminal Appeals rejected it, finding that each juror was asked and allowed to answer questions about whether he could follow the law, consider a life sentence, and weigh the aggravating and mitigating circumstances. Hodges, 1995 WL 301443, at *8. The court also found that a prospective juror could not answer the question "without knowing more about the facts surrounding the case," and that the question impermissibly sought "to obtain a pledge from the prospective juror." Id. The district court found that the state court's decision was not an unreasonable application of federal law, agreeing with the state appellate court that Hodges's questions improperly sought to commit the jurors to an opinion before hearing all of the evidence.
The Sixth Amendment guarantees a criminal defendant a trial by an impartial jury. Morgan v. Illinois, 504 U.S. 719, 726-27, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). An adequate voir dire to identify unqualified jurors is integral to that right. Id. at 729, 112 S.Ct. 2222; Dennis v. Mitchell, 354 F.3d 511, 523-24 (6th Cir.2003). A state court's refusal to pose "constitutionally compelled" questions merits habeas relief. Mu'Min v. Virginia, 500 U.S. 415, 425-26, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991). Questions are constitutionally compelled only if "the trial court's failure to ask these questions ... render[s] the defendant's trial fundamentally unfair." Id.
Hodges relies primarily on Morgan in support of his position. In Morgan, the trial court did not permit defense counsel to ask prospective jurors the following question: "If you found [the defendant] guilty, would you automatically vote to impose the death penalty no matter what the facts are?" Morgan, 504 U.S. at 723, 112 S.Ct. 2222. The Supreme Court held that general questions about following the law were not enough and that it was error to exclude a more specific question tailored to identify jurors "who would always impose death following conviction [of a capital offense]."
The Tennessee Court of Criminal Appeals' determination that the trial court's restrictions on voir dire were permissible was neither contrary to nor an unreasonable application of federal law. The trial court allowed defense counsel to ask the Morgan question, i.e., whether there was an aggravating circumstance that would cause her automatically to impose the death penalty. In fact, the trial court went beyond that and also allowed defense counsel to ask prospective jurors whether they could impose a life sentence on a defendant who had a prior conviction for a violent felony.
This circuit has held that voir dire questions about how a potential juror would vote if given specific examples of aggravating or mitigating evidence are not constitutionally compelled under Morgan. In Dennis, 354 F.3d at 523, the petitioner alleged that the trial court violated his constitutional rights by refusing to permit him to ask prospective jurors about specific mitigating factors, including age, lack of prior criminal history, and environment. We held that the Ohio Supreme Court's conclusion that the trial court allowed adequate questioning was "not an unreasonable determination of the facts in light of the record" and was not "contrary to United States Supreme Court precedent." Id. at 525. We noted that the trial court had allowed the petitioner's counsel to ask prospective jurors about mitigating factors in general: whether or not they could consider mitigating factors and return a life sentence; whether they could follow the law; and whether any of the jury panel had strong feelings about psychological evidence concerning upbringing, discipline, and lack of discipline. Id. at 524-26.
Similarly, in Bedford v. Collins, 567 F.3d 225 (6th Cir.2009), we rejected the petitioner's claim that the trial court improperly limited the scope of voir dire by prohibiting counsel from asking questions that sought to elicit prospective jurors' views on the petitioner's specific case. We noted that the trial court "drew the line at questions that sought to elicit the jurors' views on [the petitioner's] specific case — but many judges understandably (and properly) would do the same thing to prevent the lawyers from previewing their case through voir dire." Id. at 232 (emphasis added). Ultimately we concluded that the restrictions on voir dire "did not render the process fundamentally unfair. [The restrictions] reflect instead a reasonable effort to enable adequate exploration of juror biases (on the one hand) while preventing
Other circuits agree that Morgan does not compel a trial court to allow questions about how a potential juror would vote if given specific examples of aggravating or mitigating evidence. See Richmond v. Polk, 375 F.3d 309 (4th Cir.2004); United States v. McVeigh, 153 F.3d 1166, 1207 (10th Cir.1998) ("When a defendant seeks to ask a juror to speculate or precommit on how that juror might vote based on any particular facts, the question strays beyond the purpose and protection of Morgan."). In Richmond, the Fourth Circuit addressed a claim functionally identical to the one presented here by Hodges. There, the defendant sought to ask potential jurors "if ... knowing that [the defendant] had a previous first-degree murder conviction, they could still consider mitigating circumstances ... in determining what their ultimate recommendation as to life or death is going to be." Richmond, 375 F.3d at 316. The trial court denied counsel's request to ask the question "on the basis that it was a `stakeout' question aimed at determining what prospective jurors would do if presented with a certain state of evidence." Id. The North Carolina Supreme Court agreed and affirmed. Id. at 329-30. The Fourth Circuit held that the North Carolina Supreme Court's decision "was neither contrary to nor an unreasonable application of Morgan." Id. at 330 (internal quotation marks omitted). It reasoned:
Id. (internal quotation marks and formatting omitted).
We agree with the Fourth Circuit's reasoning in Richmond, and we hereby reaffirm our own holdings in Dennis and Bedford. Trial courts have "a great deal" of discretion in conducting voir dire. Morgan, 504 U.S. at 729, 112 S.Ct. 2222. Morgan simply does not require a trial court to permit defense counsel to ask prospective jurors how they would vote assuming the existence of particular mitigating or aggravating circumstances, which is essentially what defense counsel sought to do here. Morgan allows for the identification and exclusion of jurors who are biased for or against the death penalty before being presented with any evidence and would always vote in accordance with their biases without regard to the particular facts of the particular case. Id. at 733, 112 S.Ct. 2222 ("Were voir dire not available to lay bare the foundation of petitioner's challenge for cause against those prospective jurors who would always impose death following conviction, his right not to be tried by such jurors would be rendered... nugatory.") (emphasis in original). When defense counsel asks questions about the specific aggravating and/or mitigating factors actually at issue in a case, defense counsel is no longer attempting to identify members of the venire who would always vote for the death penalty; rather, defense counsel is attempting to preview how prospective jurors will vote given the specific facts of the individual case, and Morgan does not require a trial court to allow such previews.
Here, defense counsel was permitted to ask the Morgan question and was even permitted to go beyond that and ask questions such as whether a juror could impose a life sentence on a defendant with previous
Hodges claims that his death sentence violates his Sixth, Eighth, and Fourteenth Amendment rights because juror Leroy Thompson engaged in misconduct by allegedly misinforming the trial court that he would be able to sit on the jury but then voting for the death penalty only because he was in pain due to arthritis and wanted to end deliberations. Hodges included Thompson's alleged misconduct as a ground for his request for an evidentiary hearing. Hodges concedes that he never raised this matter in the state courts and that it is therefore procedurally defaulted, but he contends that he can establish cause and prejudice to excuse the procedural default.
Whether a petitioner's federal habeas claim is barred by procedural default is a question that we review de novo.
Hodges concedes that he never presented this particular claim to the state courts. He did challenge Thompson for cause on the basis that Thompson was incompetent and unable to understand the proceedings, but he never "presente[ed] the same claim under the same theory to the state courts" that he presents here. See Hicks, 377 F.3d at 553.
At the district court, Hodges argued that various causes could excuse his procedural default, including ineffective assistance of appellate counsel, ineffective assistance of post-conviction counsel, reliance on Thompson's responses in voir dire, and Hodges's inability to locate Thompson before the post-conviction evidentiary hearing. Ineffective assistance of counsel can constitute cause for a procedural default. See Carrier, 477 U.S. at 492, 106 S.Ct. 2639. However, "an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted." Edwards v. Carpenter, 529 U.S. 446, 453, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). In post-conviction proceedings, Hodges raised a claim of ineffective assistance of appellate counsel regarding Thompson's competence. He did not claim that appellate counsel were ineffective for failing to raise the claim that Thompson engaged in misconduct. Accordingly, Hodges cannot rely on ineffective assistance of counsel to establish cause to excuse his procedural default.
Nor can Hodges rely on ineffective assistance of post-conviction counsel to establish cause to excuse his default, even if this holding is not so clear-cut as it once would have been. Historically, the federal courts have held that there is no constitutional right to an attorney in post-conviction proceedings, and that ineffective assistance of post-conviction counsel therefore cannot establish cause for procedural default. See Carpenter, 529 U.S. at 450-53, 120 S.Ct. 1587; Coleman, 501 U.S. at 752, 111 S.Ct. 2546; Landrum, 625 F.3d at 919. But the Supreme Court recently held in Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), that there is a "narrow exception" to Coleman: "Inadequate assistance of counsel at initial review collateral proceedings may establish cause for a procedural default of a claim of ineffective assistance at trial." Id. at 1315 (emphasis added). This "equitable" — as opposed to constitutional — exception is premised on Coleman itself, a case in which the Court declined to address the situation in which "state collateral review is the first place a prisoner can present a challenge to his conviction." Coleman, 501 U.S. at 755, 111 S.Ct. 2546. The Martinez Court held that in such situations ineffective assistance of post-conviction counsel may be raised as cause to excuse procedural default because "the collateral proceeding is in many ways the equivalent of a prisoner's direct appeal as to the ineffective assistance claim." Martinez, 132 S.Ct. at 1317.
The Court in Martinez purported to craft a narrow exception
Id. (internal citations omitted; emphases added).
We will address Hodges's claims of ineffective assistance of trial counsel in a different section, but here he claims ineffective assistance of post-conviction counsel as cause to excuse default of his claim of ineffective assistance of appellate counsel for failure to raise the juror misconduct issue on direct appeal. Under Martinez's unambiguous holding our previous understanding of Coleman in this regard is still the law — ineffective assistance of post-conviction counsel cannot supply cause for procedural default of a claim of ineffective assistance of appellate counsel. See, e.g., Landrum, 625 F.3d at 919. Moreover, 28 U.S.C. § 2254(i) bars a claim of ineffective assistance of post-conviction counsel as a separate ground for relief, see Martinez, 132 S.Ct. at 1320, and Hodges has not presented any evidence to justify review of his claim in order to prevent a fundamental miscarriage of justice. See Carrier, 477 U.S. at 495-96, 106 S.Ct. 2639.
Additionally, Hodges cannot rely on statements made by Thompson at voir dire or difficulties in locating Thompson during state post-conviction proceedings to establish cause. Thompson discussed his pain-causing arthritis at voir dire on January 27, 1992. The verdict form is dated January 30, 1992. Hodges filed his petition for state post-conviction relief on December 11, 1997. He first attempted to locate Thompson in or around June 1998. Hodges gives no explanation whatsoever as to why nearly six-and-a-half years elapsed between his conviction and his first attempt to locate Thompson. Moreover, Hodges gives no explanation as to why or how he was able to locate Thompson for the federal habeas proceeding but not for the state post-conviction proceeding.
"[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." Carrier, 477 U.S. at 479, 106 S.Ct. 2639. For nearly
Finally, Hodges has not presented any evidence that review of this claim is necessary in order to prevent a fundamental miscarriage of justice. See id. at 495-96, 106 S.Ct. 2639. This exception has been applied only when a habeas petitioner has demonstrated that he is actually innocent. See Carter v. Mitchell, 443 F.3d 517, 538 (6th Cir.2006) (citing Carrier, 477 U.S. at 496, 106 S.Ct. 2639). Hodges has not presented new evidence of his innocence nor has he even argued that he is actually innocent.
Accordingly, Hodges is unable to establish the cause necessary to excuse his procedural default of this claim. It was therefore appropriate for the district court to deny both an evidentiary hearing and habeas relief on this claim because the claim is barred.
Hodges argues that his counsel rendered ineffective assistance by advising him to plead guilty; that because of their deficient performance, his guilty plea was neither knowing, voluntary, nor intelligent; and that he was prejudiced by his counsel's performance. Hodges claims that his lawyers mistakenly believed that his pleading guilty would prohibit the state from introducing any evidence relating to the facts of the murder; that his lawyers forgot that if he pled guilty to the aggravated robbery charge, Hodges would immediately become death eligible; and that he would not have pled guilty if his lawyers had given him accurate information.
Hodges failed to appeal the plea-invalidity claim to the Tennessee Court of Criminal Appeals, and referred to it only in the final page of his brief without citing to the record or any legal authority. The Tennessee Court of Criminal Appeals considered the issue waived and declined to address it, relying on Tenn.Crim.App. R. 10(b) and Tenn. R.App. P. 27(a)(7). See Hodges, 2000 WL 1562865, at *32. To the extent that it is a separate claim, the plea-invalidity claim is procedurally defaulted. See Middlebrooks v. Bell, 619 F.3d 526, 535-36 (6th Cir.2010). Hodges cannot rely on ineffective assistance of post-conviction counsel to excuse the default; neither has he presented any evidence to justify review of his claim in order to prevent a fundamental miscarriage of justice. See Carrier, 477 U.S. at 495-96, 106 S.Ct. 2639. Accordingly, the plea-invalidity claim is barred, and this court will review only the ineffective assistance of counsel claim.
Hodges raised the ineffective assistance claim in his state post-conviction petition. The trial court held an evidentiary hearing and took testimony from Hodges's trial counsel. Hodges v. Tennessee, No. M1999-00516-CCA-R3-PD, 2000 WL 1562865, at *18 (Tenn.Crim.App. Oct. 20, 2000). The Court of Criminal Appeals summarized the evidence presented as follows:
Id. The trial court held that counsel made an informed tactical decision to advise Hodges to plead guilty. Id.
The Tennessee Court of Criminal Appeals affirmed that decision. It cited Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), for the proposition that the two-prong standard from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to ineffective assistance of counsel claims arising out of guilty plea proceedings. Hodges, 2000 WL 1562865, at *19-20. The court concluded that the advice to plead guilty was not "outside the range of competence demanded of attorneys in criminal cases." Id. at *20. The court noted the overwhelming evidence of guilt, the reasonable hope of obtaining leniency, the reasonable belief that the jury would view the guilty plea as an expression of remorse, and the elimination of the presentation to the jury of all of the evidence available of Hodges's guilt. Id. at *19.
The district court held that the state court's conclusion that Hodges's counsel made a strategic decision to advise him to plead guilty was not unreasonable. The court noted that Hodges's counsel had done substantial work on the case before advising him to plead guilty; that counsel were experienced, aware of the state's proof and the elements of the offenses charged; had the aid of three experts; and were impaired by Hodges's public statements admitting to several murders. The district court also found that Hodges did not establish prejudice because Hodges did not testify at his post-conviction hearing and thus did not say that he would not have pled guilty but for the advice of counsel.
After a careful review of the record, we agree with the district court. The state court's determination that defense counsel's performance was not deficient was not contrary to or an unreasonable application of federal law. Moreover, even if we were to find deficient performance, Hodges has failed to show that he was prejudiced by the performance.
To establish ineffective assistance of trial counsel, Hodges must show that (1) his counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. An attorney's
The Supreme Court has recently noted that "[e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011). "The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so." Id. (internal quotation marks and citations omitted). Therefore, "[w]hen § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
Using the "doubly" deferential standards of § 2254(d) and Strickland, we conclude that the state court's determination that defense counsel's performance was not deficient was neither contrary to nor an unreasonable application of federal law. Trial counsel advised Hodges to plead guilty because of the overwhelming evidence of his guilt, to give the defense credibility, to limit the proof the prosecution could present, and to show Hodges's remorse.
The Supreme Court has explicitly approved using the American Bar Association ("ABA") Guidelines on attorney performance in effect at the time of a defendant's trial as "guides to determining what is reasonable" performance by counsel. See, e.g., Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1482, 176 L.Ed.2d 284 (2010). However, "ABA Guidelines are not `inexorable commands'; rather, they are `only guides to what reasonableness means, not its definition.'" Post v. Bradshaw, 621 F.3d 406, 418 (6th Cir.2010) (quoting Bobby v. Van Hook, 558 U.S. 4, 130 S.Ct. 13, 17, 175 L.Ed.2d 255 (2009)) (some internal quotation marks omitted).
The ABA Guidelines in effect at the time of Hodges's trial contemplated negotiated guilty pleas only where the defendant is assured of a sentence less than death. ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases ("ABA Guidelines"), § 11.6.1 (1989). "If no written guarantee can be obtained that death will not be imposed following a plea of guilty, counsel should be extremely reluctant to participate in a waiver of the client's trial rights." Id. § 11. 6.3 cmt.
Courts also find that a defendant has little to gain from pleading guilty in a capital case, even when the evidence of guilt is overwhelming. "[P]leading guilty [in a capital case] without a guarantee that
This court has also recently decided a similar, but distinguishable, case. In Post, 621 F.3d at 415-18, a pre-Richter case, we addressed whether trial counsel's advice to enter a no-contest plea and to submit the penalty phase to a three-judge panel rather than a jury was objectively reasonable under Strickland. Using de novo review, we concluded that the defendant's weak mitigation case made the decision reasonable, noting that "[the defendant's] counsel were between a rock and a hard place in determining the best way to spare him a death sentence, given the overwhelming evidence of his guilt, his numerous confessions, and his refusal to plead guilty." Id. at 418. We held that although the no-contest plea resulted in the defendant's being "sentenced by judges, not jurors, and by three persons rather than twelve," the strategy was professionally reasonable because the sentencing judges could have viewed the no-contest plea as a mitigating factor (although ultimately they did not). Id. at 417.
Trial counsel's advice to plead guilty here was questionable. Defense counsel hoped that Hodges's pleading guilty would accomplish the following: (1) gain credibility with the jury, (2) demonstrate Hodges's remorse, (3) limit the evidence presented to the jury, and (4) surprise the prosecution and thereby limit the effectiveness of its penalty case. The Tennessee Court of Criminal Appeals noted that although the goals of counsel were reasonable, Hodges "ultimately gained nothing by pleading guilty." Hodges, 2000 WL 1562865, at *20. For example, despite counsel's attempt to limit the evidence presented to the jury, a vast majority of what they hoped to keep out was allowed in. Trina Brown testified that Hodges planned to rob and kill the next person who propositioned him, and that he discussed how to carry out the crimes. She also told the jury that Hodges bound the victim's hands and feet and that, after she and Hodges ransacked the victim's apartment, Hodges strangled the victim, who was begging for his life. Hodges, 944 S.W.2d at 349. Police officers testified that the victim's belongings were found in Hodges's possession when he was arrested, that Hodges's fingerprints were found in the victim's home, and that Brown was photographed using the victim's ATM card. Id. at 350.
Defense counsel did successfully limit the prosecution's cross-examination of Hodges; the State was permitted to ask questions only about his personal history, and not about the circumstances of the offense. Id. at 350 n. 6. However, the same result could have been achieved by putting on a reasonable doubt defense and having Hodges testify only during the sentencing hearing. This is also true of defense counsel's goals of gaining credibility with the jury and showing remorse.
Moreover, defense attorney Dawson testified in the state post-conviction proceeding that the defense team "never sat down and did an analysis of what are the benefits of going to trial, what are the deficits and where did that lead us." He also
However, trial counsel also acknowledged that the evidence of Hodges's guilt was overwhelming. As counsel explained during the state post-conviction proceeding, despite their advice that he should not speak with reporters, Hodges participated in a pretrial television series in which he gave interviews "describing himself as a serial killer." Attorney Dawson described the difficulties that arose from representing such a client: "We had a client that was confessing to the public on eight murders. And he had written to the court; he had written to the prosecutor, a confession to the case that we had to try. It looked pretty dismal." Trial counsel summarized the evidence against Hodges: Hodges made inculpatory statements to police, prosecutors, the trial court, and television reporters; his fingerprints were at the scene of the crime; he had items from the victim's house with him when he was arrested; Trina Brown gave a statement implicating him; there were photos of Brown using the victim's bank card; and Brown's fingerprints were on the victim's card.
The defense team talked to Hodges about the decision to plead guilty and reviewed the guilty plea form with him. Hodges thanked his attorneys for their work and never complained about their representation.
If it were our task to determine whether trial counsel's performance was deficient because they advised Hodges to plead guilty, the decision would be a more difficult one. The ABA Guidelines at the time of the plea contemplated guilty pleas in capital cases only in exchange for a guarantee from the prosecution not to seek the death penalty. Here, no such exchange was made, and Hodges gained little — if anything — from his plea.
However, the "ABA Guidelines are not inexorable commands," Post, 621 F.3d at 418 (internal quotation marks omitted), and our task is not to determine whether trial counsel's performance was deficient. Rather, we must determine "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Richter, 131 S.Ct. at 788 (emphasis added). And here, as identified by the Tennessee Court of Criminal Appeals, there is a reasonable argument that counsel satisfied Strickland's deferential standard. Although not directly on point, the considerations in this case are similar to those faced by this court in Post: "[C]ounsel were between a rock and a hard place in determining the best way to spare [the defendant] a death sentence, given the overwhelming evidence of his guilt, [and] his numerous confessions." 621 F.3d at 418. And in Post, we found that counsel's actions were reasonable under a de novo standard of review, id., which is far less stringent than the "doubly" deferential standard that we must apply here, see Richter, 131 S.Ct. at 788. Although there is some evidence that counsel here failed to appreciate fully the impact of their decision, that is not material to the issue before us: whether there is "any reasonable argument" that counsel's recommendation to plead guilty satisfies Strickland. As the Supreme Court has stated, "[C]ounsel cannot be deemed ineffective for attempting to impress the jury with his candor and his unwillingness to engage in a useless charade." Nixon, 543 U.S. at 192, 125 S.Ct. 551.
Ultimately, the state court that addressed this issue concluded that, "[a]lthough defense counsel's strategy for
Even if we did find that the state court's decision on trial counsel's performance was unreasonable, we could not grant relief because Hodges has failed to establish prejudice. As noted above, to show prejudice in the guilty-plea context, a defendant "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and instead would have insisted on going to trial." Hill, 474 U.S. at 59, 106 S.Ct. 366.
Because the state courts found that trial counsel's performance was not deficient, the state courts did not address the prejudice prong of the Strickland inquiry. We have previously held that where a state court addresses only the performance prong of the Strickland inquiry, this court will review the prejudice prong de novo. See Morales v. Mitchell, 507 F.3d 916, 935 (6th Cir.2007). However, the Supreme Court's decision in Richter requires us to apply AEDPA deference to our review of the prejudice prong even where — as here — the state court reviewed only the performance prong.
In Richter, 131 S.Ct. at 784, the Supreme Court stated,
(emphasis added). The Court went on to say, "[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 to the contrary." Id. at 784-85. Here, the state court did address Hodges's ineffective assistance of counsel "claim," so AEDPA deference applies to the entire claim regardless of whether the state court explicitly addressed every "component" (i.e., the prejudice prong) of that claim. See id. at 784.
Moreover, as a matter of logic, a finding that counsel's performance was not deficient implicitly, but unequivocally, encompasses a finding that the performance did not prejudice the defendant. Indeed, it would be nonsensical to argue that a performance deemed to be constitutionally sufficient nevertheless prejudiced the defendant. It must be assumed that a state court's decision that performance was not deficient includes a decision that the performance was not prejudicial. Richter explicitly holds that a state court decision is entitled to AEDPA deference, even if the state court has not given reasons for that decision, "in the absence of any indication" that state-law procedural principles were responsible for the state court's decision. Id. at 785.
Here, the state court adjudicated Hodges's ineffective assistance claim, and there was no indication that state-law procedural principles were responsible for the state court's decision. Accordingly, we must review the entire claim under AEDPA deference, including the prejudice prong. Our task is therefore to determine whether there was "[any] reasonable basis for the state court to deny relief." Id. at 784.
This court has previously noted that "testimony, though self-serving, may be enough by itself to satisfy the prejudice prong." Miller v. Straub, 299 F.3d 570, 581 (6th Cir.2002). In Miller, the defendants testified at a hearing that they entered their guilty pleas with hesitation and would not have pled guilty but for counsel's advice. Id. The court also noted that one of the defendants presented, in the form of testimony from his trial counsel, "additional evidence that, with competent assistance, he would have pled not guilty." Id. at 582. Trial counsel testified that the defendant "pled guilty only reluctantly," and the court concluded that "the fact that [trial counsel] had to prevail upon [the defendant] to plead guilty tends to corroborate [the defendant's] testimony that he would have pled not guilty." Id. The court concluded that the defendants' "testimony, along with reasonable inferences from the facts and circumstances of this case," established prejudice under Hill. Id. at 583.
In Hodges's case, particularly under the doubly deferential standards of AEDPA and Strickland, we cannot conclude that Hodges has established a reasonable probability that, but for counsel's advice, he would not have pled guilty. In fact, the only evidence concerning this issue appears in Hodges's Verified Amended Petition for Post Conviction Relief filed on March 24, 1998. There, notably, Hodges did not say that had he had better advice he would not have pled guilty. Rather, his statement was:
At the end of the document, Hodges's signature appears, verifying that the "foregoing allegations of fact are true and correct to the best of [his] information and belief."
In contrast to the defendants in Miller, Hodges has never personally testified about his decision to plead guilty and whether he would have pled not guilty but
Furthermore, Hill instructs us to examine how competent counsel might have influenced the outcome of a hypothetical trial, see 474 U.S. at 59-60, 106 S.Ct. 366, and there is virtually no chance that Hodges could have avoided convictions by proceeding to trial. As has been discussed repeatedly, the evidence against Hodges was overwhelming, and he only made the situation worse by corresponding with reporters, the court, and the prosecutor against the advice of his counsel. Similarly, we have no evidence or reason to believe that the penalty phase of trial would have proceeded differently had there first been a full guilt phase.
A self-serving statement, couched in exactly the terms of the Supreme Court's standard, and filed as a required part of Hodges's verified petition for post-conviction relief, cannot establish a reasonable probability that Hodges would have pled not guilty but for the advice of counsel, where all objective evidence points unequivocally to the contrary. Accordingly, it is clear that the state court had a reasonable basis for denying relief on this claim. Hodges is not entitled to relief on his claim of ineffective assistance of counsel at the plea phase.
Hodges argues that the district court erred when it denied him an evidentiary hearing on his claims that he was incompetent at trial and that his trial counsel were ineffective at sentencing. He also argues that the district court erred when it denied his competency and ineffective assistance of counsel claims on the merits.
Hodges failed to present his claim of incompetency at trial to the state courts, and he no longer has any state court remedies to exhaust. See Fletcher v. Tennessee, 951 S.W.2d 378, 380-81 (Tenn.1997) (citing Tenn.Code Ann. § 40-30-217(a) (1996 Supp.)). The claim is therefore procedurally defaulted.
Hodges argues that substantive competency claims cannot be procedurally defaulted, citing cases from the Tenth and Eleventh Circuits. See Battle v. United States, 419 F.3d 1292, 1298 (11th Cir.2005); Walker v. Gibson, 228 F.3d 1217, 1229 (10th Cir.2000); Adams v. Wainwright, 764 F.2d 1356, 1359 (11th Cir. 1985). However, neither the Supreme Court nor this court has adopted such a rule, and we decline to do so here. As the Ninth Circuit noted in LaFlamme v. Hubbard, No. 97-16973, 2000 WL 757525, at *2 (9th Cir. Jun. 9, 2000), those courts that have held that substantive competency claims cannot be procedurally defaulted appear to have conflated the distinct concepts of waiver and procedural default. Although it is true that substantive competency claims cannot be waived, Pate v. Robinson, 383 U.S. 375, 384, 86 S.Ct. 836,
Hodges also cannot rely on ineffective assistance of post-conviction counsel to excuse the default. As we mentioned, the Supreme Court's decision in Martinez puts yet another wrinkle in the crushed velvet that is federal habeas corpus jurisprudence, but the Martinez rule is not implicated here. Martinez held that where the state courts do not permit ineffective assistance of trial counsel claims to be brought on direct appeal but require they be brought on collateral attack, ineffective assistance of collateral counsel can provide cause to excuse procedural default. See Martinez, 132 S.Ct. at 1315-16. But Tennessee does not require prisoners to bring ineffective assistance of trial counsel claims on collateral attack — prisoners may bring them on direct appeal. See State v. Honeycutt, 54 S.W.3d 762, 766 & n. 6 (Tenn.2001); State v. Anderson, 835 S.W.2d 600, 607 (Tenn.Crim.App.1992); State v. Smith, 2011 WL 5517646, at *12-13, 2011 Tenn.Crim.App. LEXIS 830, at *33-35 (Tenn.Crim.App. Nov. 14, 2011). Tennessee's system does not implicate the same concerns as those that triggered the rule in Martinez because in Tennessee a collateral proceeding is not "the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial." Martinez, 132 S.Ct. at 1320. And in any event, here Hodges did not default an ineffective assistance of trial counsel claim; he defaulted his claim that he was not competent to stand trial. Accordingly, the Coleman rule still applies, and ineffective assistance of post-conviction counsel may not provide cause to excuse default of his competency claim. Because Hodges has not presented any evidence to justify review of his claim in order to prevent a fundamental miscarriage of justice, see Carrier, 477 U.S. at 495-96, 106 S.Ct. 2639, the substantive competency claim is barred, and we will review the ineffective assistance claim only to the extent that it concerns failure to investigate and present additional mitigating evidence.
In his state post-conviction petition, Hodges claimed that trial counsel were ineffective for failing to investigate and present additional mitigating evidence. According to Hodges, his counsel should have obtained prison records that showed he told a doctor that he was raped as a boy and should have interviewed additional people who were familiar with his background. Hodges also asserted that trial counsel failed to investigate evidence concerning the causes, effects, and treatment of substance abuse; failed to adequately prepare him for his testimony; and failed to make effective use of experts. Hodges requested, and the trial court granted, $15,000 for mitigation investigation; but the trial court denied Hodges's request for additional funds to hire a drug and alcohol specialist, a mitigation specialist, and a fingerprint expert. At the evidentiary hearing, the trial court heard testimony from Hodges's trial counsel, a clinical sociologist who helped prepare Hodges's mitigation case, the Tennessee District Public Defender's Conference chief counsel, and a mitigation specialist retained for the post-conviction
The appellate court affirmed, finding that Hodges had not presented any evidence in post-conviction proceedings that was substantially different from the proof introduced at the penalty phase. Id. at *27. The court found that the experts presented at the penalty phase, with one exception, were in possession of the same records about Hodges used by the post-conviction mitigation specialist, and that additional evidence from further mitigation investigation would have been cumulative to the evidence obtained by trial counsel before sentencing. Id. It stated, "[g]iven the records presently before this court, we conclude that trial counsel adequately investigated the appellant's background and presented a case in mitigation that was supported by the information introduced." Id. The appellate court also held that the trial court did not abuse its discretion by denying Hodges the additional funds he requested because his post-conviction counsel were capable of presenting the available mitigation information without expert assistance. Id. at *29.
"This court reviews a district court's decision whether to hold an evidentiary hearing for an abuse of discretion." Vroman v. Brigano, 346 F.3d 598, 606 (6th Cir.2003).
Generally, 28 U.S.C. § 2254(e)(2) governs whether a district court should hold an evidentiary hearing in a habeas proceeding. Section 2254(e)(2) states that, with a few exceptions, "[i]f the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim." Hodges does not argue that one of the exceptions applies; instead, he argues that he did not fail to develop the factual basis of his claim and is therefore entitled to an evidentiary hearing.
We need not decide whether Hodges developed the factual basis of his claim in state court because the Supreme Court's decision in Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), prohibits us from considering new evidence in this case. The Court held that "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Id. at 1398. It reasoned that the language of the statute is "backward-looking" and "requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time i.e., the record before the state court." Id. The Court also noted that its holding did not "render[] § 2254(e)(2) superfluous" because it "continues to have force where § 2254(d)(1) does not bar federal habeas relief." Id. at 1400-01.
Hodges's ineffective assistance claim was brought under § 2254(d)(1), and it was adjudicated on the merits by the state courts. Pinholster therefore applies. It was a reasonable exercise of the district court's discretion to deny an evidentiary hearing on the claim, because any evidence introduced would be "irrelevant" and "have no bearing on § 2254(d)(1) review" in any event. See id. at 1400.
To prevail on his claim of ineffective assistance of counsel at sentencing, Hodges must show both that his counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. With respect to performance, "counsel should be strongly presumed to have rendered adequate assistance and
"Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Richter, 131 S.Ct. at 788. "The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so." Id. (internal quotation marks and citations omitted). Therefore, "[w]hen § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
The state court record supports the conclusion that Hodges's trial counsel reasonably investigated Hodges's background and presented mitigating evidence. The Tennessee Supreme Court summarized the mitigation evidence presented at sentencing as follows:
Hodges, 944 S.W.2d at 350-51. Because Hodges alleges that his trial counsel's mitigation case overlooked significant aspects of his background, the mitigation testimony merits more detailed attention.
Dr. Nurcombe, head of child psychiatry at Vanderbilt Medical School, testified that he specialized in juvenile delinquency and the effects of sexual abuse, and that he had examined at least 500 children. To assess Hodges, Dr. Nurcombe reviewed his school records, legal records, mental health records, and the results of an investigation by a private investigation group concerning his family background. He also interviewed Hodges for a total of nine hours on three occasions, and had a one-hour phone interview with him. The mental health records available to Dr. Nurcombe included five psychological tests from the age of twelve to late adolescence. He found no evidence that Hodges was insane, but he did say that Hodges was not mentally healthy. He also said that Hodges suffered from an antisocial personality disorder, low self-esteem, and substance abuse.
In addition to Dr. Nurcombe, Hodges's counsel presented six other witnesses at sentencing: Hodges's mother, three of his brothers, a neighbor, and Hodges himself. The testimony generally showed that Hodges had a difficult childhood in a low-income, dysfunctional family and that his behavior significantly worsened at the age of twelve, around the time he claims to have been raped. However, Hodges himself admitted that his parents treated him well, and that his mother took him for mental health treatment many times.
At the state post-conviction proceeding, Hodges presented additional testimony. He presented the testimony of his trial counsel, each of whom explained that they did not sufficiently prepare for the sentencing phase of trial. He also presented
Although the evidence presented at the post-conviction proceeding shows that trial counsel's performance was not perfect, in light of the substantial and competent evidence produced at the penalty phase of Hodges's trial, Hodges has not shown that the Tennessee state court's decision that trial counsel's performance was not deficient was unreasonable. The burden of proof is on Hodges, Pinholster, 131 S.Ct. at 1398, and under the "doubly deferential" standards imposed by § 2254(d) and Strickland, id. at 1403, Hodges has not carried that burden. Here, Hodges's counsel retained a mitigation specialist and several experts. Defense counsel obtained most of Hodges's available school, medical, and juvenile records. Dr. Nurcombe used those records and his interviews with Hodges to diagnose him, testify at length about his background, and link his homosexual rape at age twelve and his exposure as a homosexual prostitute to his crime. The testimony of Hodges's family members was consistent with Dr. Nurcombe's testimony and conclusions. And in post-conviction proceedings, Hodges identified little information not considered by Dr. Nurcombe.
The circumstances of this case are similar to those considered by the Supreme Court in Bobby v. Van Hook, 558 U.S. 4, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009). There, the petitioner claimed that his counsel were ineffective because their mitigation investigation was insufficient. Id. at 18. The Supreme Court disagreed, finding that although the petitioner was tried less than three months after his indictment, trial counsel spoke with his parents, an aunt, and a family friend; consulted with two expert witnesses; contacted the Veterans Administration and sought medical records; and enlisted a mitigation specialist. Id. Trial counsel also presented evidence that the petitioner began drinking and using drugs as a child, witnessed his father abuse his mother, had violent fantasies, attempted suicide five times, suffered from borderline personality disorder, consumed drugs and alcohol on the day of the crime, and may have been motivated by a "homosexual panic." Id. at 18-19. The Supreme Court rejected the petitioner's argument that his counsel could have found more mitigating evidence by interviewing other members of his extended family and a psychiatrist who once treated his mother:
Id. at 19.
Here, given the mitigation evidence Hodges's counsel gathered from his family and Dr. Nurcombe's review of his background, it was reasonable for counsel not to identify and interview more distant family members or review their mental health.
Where, as here, trial counsel puts on a reasonable mitigation case and presents nearly all of the same information as presented by the petitioner's post-conviction experts, we cannot find deficient performance. And we certainly cannot find that the state court's decision that trial counsels' performance was not deficient was unreasonable. "As Strickland made clear, our role on habeas review is not to nitpick gratuitously counsel's performance. After all, the constitutional right at issue here is ultimately the right to a fair trial, not to perfect representation." Smith v. Mitchell, 348 F.3d 177, 206 (6th Cir.2003) (citing Strickland, 466 U.S. at 684, 104 S.Ct. 2052).
Because we find that trial counsel's performance was not deficient, we need not address whether Hodges was prejudiced by that performance. Hodges is not entitled to habeas relief on this claim.
For the foregoing reasons, we
HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part.
Because I conclude that the Tennessee courts unreasonably applied Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), I respectfully dissent from Part III of the majority opinion.
The Supreme Court has explicitly approved using ABA Guidelines on attorney performance in effect at the time of a defendant's trial as "guides to determining what is reasonable" performance by counsel. Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1482, 176 L.Ed.2d 284 (2010); Rompilla v. Beard, 545 U.S. 374, 387, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005); Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); see also Bobby v. Van Hook, 558 U.S. 4, 130 S.Ct. 13, 16, 175 L.Ed.2d 255 (2009) (per curiam). "ABA Guidelines are not `inexorable commands'; rather, they are `only guides to what reasonableness means, not its definition.'" Post v. Bradshaw, 621 F.3d 406, 418 (6th Cir.2010) (quoting Bobby, 130 S.Ct. at 17) (some internal quotation marks omitted). As discussed
"[I]n a capital case, counsel must consider in conjunction both the guilt and penalty phases in determining how best to proceed." Florida v. Nixon, 543 U.S. 175, 192, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). Donald Dawson, one of Hodges's trial attorneys, testified in the post-conviction proceeding in state trial court that the decision to have Hodges plead guilty was made during the weekend prior to trial when the attorneys "sat down and pretty much saw the guilt-innocence phase as hopeless." J.A. at 1745. The attorneys were "trying to figure out what was the way to limit the jurors['] bad feelings about us [a]nd [we] thought that by pleading guilty, we could give the defense some credibility." Id. at 1746; see also id. ("[W]e [thought we] could get the jury to sort of be thankful to us that we didn't make them sit through a guilt-innocence phase and we wouldn't lose our own credibility by arguing the guilt or innocence and we would have a better chance to get a life verdict.").
On its face, this appears to be the sort of strategic trial decision owed deference under Strickland. However, Dawson also testified that the defense team did "[n]ot adequately" think through the decision to plead guilty: "we never sat down and did an analysis of what are the benefits of going to trial, what are the deficits and where did that lead us." Id. Dawson testified that at the time of trial, the defense team had not read available literature setting out standards for adequate representation in capital cases. Id. at 1747. In particular, the attorneys were unfamiliar with "the advantages of putting [on] a defense [in the guilt phase] consistent with your mitigation theory." Id. They also failed to appreciate the advantages of "hav[ing] the jury ... have a chance to look at your client longer and find him guilty[,] [a]nd then decide [`]now that we find him guilty, let's see ... [w]hat is the proper sentencing[']." This would allow the jury to not view the penalty phase as its only opportunity to pass judgment on the defendant's actions. Id. at 1748; see also id. at 1841-43 (post-conviction hearing testimony of Michael Terry). The attorneys conducted no legal research into
Dawson also testified that nearly all of the evidence that he and the other attorneys hoped to keep out by pleading guilty came in anyway at the sentencing phase, as should have been clear from an analysis of Tennessee law. Id. at 1752-53. Finally, Dawson stated that when he advised Hodges to plead guilty, the attorneys had "totally forgotten" about the third count of the indictment, aggravated robbery, a conviction of which constituted an aggravating factor for purposes of the penalty phase. Id. at 1756-57. In fact, Dawson did not "recall having talked to Mr. Hodges at all about pleading to the robbery." Id. at 1757. Both Dawson and co-trial-counsel Michael Terry stated that pleading guilty was a mistake. Id. at 1755, 1762-63, 1842. Terry stated that he "would not plead a capital defendant guilty again in any case." Id. at 1842.
Additionally, in the post-conviction hearing, the court heard testimony from David Keefe, chief counsel for the capital division of the Tennessee District Public Defender's Conference, who examined the conduct of Hodges's trial counsel at the request of Hodges's post-conviction attorneys. Keefe testified that he "believed the decision to plead guilty was wrong and hastily made. He opined that, by pleading guilty, the defense team confused the jury and lost an array of appellate issues." Hodges, 2000 WL 1562865, at *10. Thus, although the decision to plead guilty was indeed a "strategic" decision designed to curry favor with the jury and limit the prosecution's presentation of evidence, it was not intelligently made based on a weighing of the advantages and disadvantages of going to trial in the guilt phase, and was made without reference to secondary authorities providing standards for representation in death penalty cases. Further, the strategy was ill-designed to achieve one of its primary aims: limiting presentation of damaging evidence about the crime. Therefore, advising Hodges to plead guilty was inconsistent with the prevailing standard of competent representation in death penalty cases.
Post v. Bradshaw, 621 F.3d 406 (6th Cir.2010), discussed by the majority, is distinguishable. In Post, the defendant "refused to plead guilty, despite the State's offer of a life sentence in return for a guilty plea." Id. at 417. The case addressed the question whether the decision to enter a no-contest plea and to submit the penalty phase to a three-judge panel rather than a jury was objectively reasonable. The court concluded that the defendant's weak mitigation evidence made the attorneys' decision to forgo the right to a penalty-phase jury reasonable. Id. The Post court thus stated that "Post's counsel were between a rock and a hard place in determining the best way to spare him a death sentence, given the overwhelming evidence of his guilt, his numerous confessions, and his refusal to plead guilty." Id. at 418. Although these considerations are similar to those facing Hodges's attorneys, the Post decision does not suggest that defense counsel failed to appreciate the import of their decision. Indeed, the opinion indicates that counsel weighed the pros and cons of pleading no contest and putting the case before a three-judge panel instead of a jury. Id. Further, part of the rationale advanced by the Post court in justifying counsel's decision was that "[b]y pleading no contest, [Post] would `avoid[] the ordeal' of a guilt phase and have his sentence `determined without the sentencing court hearing all of the adverse testimony that would be produced at trial.'" Id. at 417 (quoting ABA Standards for
Nixon is also distinguishable. In Nixon, defense counsel was faced with overwhelming evidence of Nixon's guilt. After a failed attempt to negotiate a guilty plea in exchange for the prosecutor dropping the death penalty, defense counsel "concluded that the best strategy would be to concede guilt, thereby preserving his credibility in urging leniency during the penalty phase." Nixon, 543 U.S. at 181, 125 S.Ct. 551. Instead of advising his client to enter a guilty plea, however, defense counsel decided to proceed to the guilt phase of trial, but to concede Nixon's guilt to the jury. In opening statement, defense counsel "acknowledged Nixon's guilt and urged the jury to focus on the penalty phase." Id. at 182, 125 S.Ct. 551. The prosecution introduced extensive evidence of Nixon's guilt during the guilt phase. Defense counsel "cross-examined [the prosecution's] witnesses only when he felt their statements needed clarification, ... and he did not present a defense case." Id. at 183, 125 S.Ct. 551. He also objected to some evidence as unduly prejudicial. "In his closing argument, [defense counsel] again conceded Nixon's guilt, and reminded the jury of the importance of the penalty phase." Id. (internal citation omitted). The jury found Nixon guilty, and the case proceeded to the penalty phase, at which defense counsel presented testimony of a number of witnesses. Id. at 183-84, 125 S.Ct. 551. Importantly, "[t]he State presented little evidence during the penalty phase, simply incorporating its guilt-phase evidence by reference." Id. at 184, 125 S.Ct. 551.
The Nixon Court did not address the issue presented here. In fact, counsel in Nixon did exactly what Hodges's counsel now concede they should have done. In approving of Nixon's attorney's strategic decision, the Court discussed the downside to pleading guilty in lieu of going to trial at the guilt phase:
Addressing Hodges's Strickland claim, the Tennessee Court of Criminal Appeals reasoned:
Hodges v. State, 2000 WL 1562865, at *20 (Tenn.Crim.App.2000). The court reasonably pointed to Hodges's counsel's "hope of obtaining leniency during the sentencing phase" as a legitimate justification for pleading guilty. Id. However, the other reasons advanced in support of counsel's decision lack support in the record. Most of the evidence of the circumstances of the murder was allowed in the penalty phase, and the "hard callous facts behind the offense" were not "desensitized by avoiding the guilt phase." Rather, those newly-presented facts were fresh in jurors' minds when they deliberated over imposition of the death penalty. As Gary Goodpaster observed:
Goodpaster, 58 N.Y.U. L.Rev. at 331. Hodges's counsel did not consider the ramifications of pleading guilty rather than proceeding to the guilt phase of the trial. Much of the evidence they hoped to exclude was admissible under Tennessee law. Counsel admitted forgetting about the aggravated robbery charge, itself an aggravating factor once Hodges pleaded guilty. Although I am mindful of the deference due to the state court under AEDPA, I must conclude that the decision that counsel met minimum constitutional standards involved an unreasonable application of clearly established federal law.
In order to demonstrate prejudice, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty
The majority is correct that Hodges himself has never stated that, but for his counsel's deficient advice, he would not have pleaded guilty and would have insisted on going to trial. Additionally, Hodges's habeas petition alleged that counsel's advice to plead guilty constituted ineffective assistance, but did not specifically state that, had counsel advised him otherwise, he would not have pleaded guilty. Hodges's brief on appeal states simply that "where Mr. Hodges had nothing to gain by pleading guilty, he certainly would not have entered a guilty plea if his lawyers had given him accurate information — in fact, had Mr. Hodges's lawyers done their research, they wouldn't have advised Mr. Hodges to plead guilty at all." (Opening Br. of Appellant 83.) However, this is not the typical guilty plea case.
As the majority correctly notes, Hodges was not protesting his innocence leading up to trial. Rather, he had admitted his guilt in one or more television interviews and in letters to the prosecution and the trial court (against the advice of counsel). See J.A. at 1704, 1786 (testimony of Donald Dawson). This certainly suggests that Hodges was ready to plead guilty, and that he would have been convicted had he pleaded not guilty. That, however, does not settle the issue. The issue here is not whether counsel were competent in their assessment and advice regarding the likelihood of conviction at trial, but rather in advising that there were significant benefits to forgoing trial. See Griffin v. United States, 330 F.3d 733, 737 (6th Cir.2003) (noting that it is "easier to show prejudice in the guilty plea context" than in other contexts "because the claimant need only show a reasonable probability that he would have pleaded differently").
In Hill, the Court stated that "where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error `prejudiced' the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea." 474 U.S. at 59, 106 S.Ct. 366. Hodges's claim here is not that counsel failed to investigate or discover potentially exculpatory evidence that would have led him to change his plea, so this language from Hill is not squarely on point. Hodges's claim is, however, that counsel failed to adequately consider the benefits of going to trial, and based their decision to advise him to plead guilty on an erroneous understanding of the consequences of a guilty plea at sentencing and insufficient legal research and investigation into the proper conduct of a capital case. This parallels the reasoning of Hill. Hodges's two primary trial attorneys both testified that had they been aware of the proper standards for death penalty representation and had they accurately considered the drawbacks to pleading guilty, they would have advised Hodges to go to trial. J.A. at 1755, 1842. Thus, there is compelling evidence that counsel would have "changed [their] recommendation as to the plea." Hill, 474 U.S. at 59, 106 S.Ct. 366.
The ultimate question under Strickland and Hill is whether the defendant has "established the reasonable probability that he would not have entered his plea but for his counsel's deficiency." Premo v. Moore, ___ U.S. ___, 131 S.Ct. 733, 744, 178 L.Ed.2d 649 (2011) (emphasis added). Although Hodges has not stated under oath that he would not have pleaded guilty if his counsel had advised against it, counsel's testimony that they would have advised him against pleading guilty establishes the requisite "reasonable probability"
In sum, although the Supreme Court recently cautioned that "hindsight cannot suffice for relief when counsel's choices [to advise the defendant to plead guilty] were reasonable and legitimate based on predictions of how the trial would proceed," and that "[t]here is a most substantial burden on the claimant to show ineffective assistance" in that situation, Premo, 131 S.Ct. at 745, counsel's choices here were based on unreasonable predictions about how the penalty phase would proceed, particularly about how pleading guilty would affect the prosecution's ability to present damaging evidence about the details of the crime, and a complete failure to consider the benefits of going through the guilt phase. Further, Hodges has made an adequate showing of prejudice.
Because I conclude that the state court unreasonably applied Strickland, I respectfully dissent from Part III of the majority's opinion and would grant Hodges's petition for habeas corpus on this issue.
