OPINION

CLAY, Circuit Judge.

Petitioner, a convicted murderer and rapist sentenced to death in Tennessee, sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d). The district court denied his petition in its entirety, but granted Petitioner a certificate of appealability on one claim—that the state improperly excluded mitigation evidence at his resentencing hearing. This Court expanded the certificate to cover four additional claims. Petitioner now appeals on those issues, which are the prosecutor's misconduct in rebuttal at Petitioner's resentencing; ineffective assistance of counsel at his resentencing; suppression of favorable, material evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); improper review of the exclusion of mitigation evidence at the resentencing; and unconstitutional vagueness in the Tennessee aggravating factor applied at resentencing.

For the reasons set forth in this opinion, we AFFIRM the district court with respect to all of Petitioner's claims except for his claims of prosecutorial misconduct and ineffective assistance of counsel, REVERSE the district court with respect to those two claims and GRANT a conditional writ of habeas corpus.

BACKGROUND

I. Factual Background1

Captain Patrick Smith and his wife, Captain Rosemary Smith ("Patrick" and "Rosemary") were officers in the United States Army Nurse Corps, stationed at Fort Campbell, Kentucky and living at 352 Hampshire Drive in Clarksville, Tennessee. On January 9, 1987, when neither Patrick nor Rosemary reported for duty, Major Kathleen Campbell and a sergeant drove to the Smiths' home, and arrived there at about 11:00 a.m. They noticed that both of the Smiths' cars were in the garage, and the glass on the backdoor had been broken from the outside. Major Campbell went to a neighbor's house and phoned the police.

When the police arrived, they found evidence of forcible entry, and the house ransacked. They also found the Smiths dead in separate bedrooms, each apparently killed by strangulation. Officer John Nichols of the Clarksville Police Department ("CPD") was one of the officers on the scene. Ronnie M. Cauthern ("Petitioner"), and Brett Patterson ("Patterson") were ultimately arrested for the murders, along with Eric Barbee ("Barbee"), who was a friend of Patterson's, though Barbee was never implicated in the murders. Patterson and Cauthern were convicted of the murders, as well as other crimes related to the incident. The Tennessee Court of Criminal Appeals entered the following findings of fact:2

Cauthern v. State, 145 S.W.3d 571, 580 (Tenn.Crim.App.2004) (quoting State v. Cauthern, 778 S.W.2d 39, 40 (Tenn.1989)).

Id. (quoting State v. Cauthern, 967 S.W.2d 726, 730 (Tenn.1998)).

Id. (quoting Cauthern, 778 S.W.2d at 40.)

Id. (quoting State v. Cauthern, 967 S.W.2d at 730-31).

II. Procedural History

Petitioner was indicted on February 3, 1987. The indictment had eight charges: first-degree felony murder for the death of Patrick, first-degree felony murder for the death of Rosemary, first-degree burglary, aggravated rape, rape, third-degree burglary, grand larceny, and armed robbery.3 Petitioner was tried by jury with Patterson in February 1988. On February 23, 1988, after about four hours of deliberations, the jury returned guilty verdicts on the murder, burglary, and aggravated rape charges.

The penalty phase of the trial began that day and ended on February 25, 1988. The jury returned a sentence of death for Petitioner on both of the murder counts, and sentences of life imprisonment for Patterson on the murder charges. On March 18, 1988, Petitioner was formally sentenced to death for the two counts of felony murder, as well as forty years' imprisonment on the aggravated rape count, and ten years' imprisonment for the first-degree burglary. Petitioner filed his notice of appeal on May 20, 1988. The Tennessee Supreme Court4 affirmed the felony murder convictions but remanded the sentences of death because the trial court failed to suppress portions of Petitioner's third statement to the police. The United States Supreme Court denied the petition for a writ of certiorari. Tennessee v. Cauthern, 495 U.S. 904, 110 S.Ct. 1922, 109 L.Ed.2d 286 (1990).

Venue for the resentencing was transferred to Gibson County, Tennessee (from Montgomery County) because of concerns over publicity in the original venue. At Petitioner's 1995 resentencing hearing, the jury heard testimony from Patrick's mother, Constance Smith, about Patrick and Rosemary's background and aspirations. The jury also heard testimony from Officer Nichols, about the crime scene, and from a doctor about the injuries sustained by the victims. Detective Cockarell testified that there had been a violent struggle. Other detectives testified as to statements given by Petitioner.5 The final state witness was Andrew, who repeated his earlier testimony regarding Petitioner boasting of the rape. The defense called Charles Tracy, a teacher who worked with the Tennessee Department of Correction, who knew Petitioner because Petitioner worked as a teacher's aide for him, and Petitioner himself testified. During rebuttal, the prosecutor gave an inflammatory speech, reproduced in the relevant section below, which Petitioner contends gives rise to a claim for habeas relief.

At the conclusion of the resentencing hearing, Petitioner was sentenced to life in prison for the murder of Patrick, and to death for the murder of Rosemary. That sentence was affirmed by the Tennessee Court of Criminal Appeals on December 2, 1996, and by the Tennessee Supreme Court on March 23, 1998. State v. Cauthern, 967 S.W.2d 726 (Tenn.1998). Certiorari to the United States Supreme Court was again denied on November 2, 1998. Cauthern v. State, 525 U.S. 967, 119 S.Ct. 414, 142 L.Ed.2d 336 (1998). Petitioner filed a pro se petition for post-conviction relief in January 1999. He later amended that pleading with the assistance of counsel. That petition was denied after evidentiary hearings. The Tennessee Court of Criminal Appeals affirmed the lower court's judgment in February 2004, and the Tennessee Supreme Court declined to hear Petitioner's appeal in August 2004. During the post-conviction hearings:

Cauthern v. State, 145 S.W.3d 571, 582-83 (Tenn.Crim.App.2004).

Petitioner, having been granted counsel, filed the instant petition on June 3, 2005, raising 27 claims for relief. The district court denied the petition in its entirety, on March 31, 2010, and declined to issue a certificate of appealability with respect to any of the claims. On May 28, 2010, the district court declined to amend its judgment, but did issue a certificate of appealability as to the question of "whether the Tennessee Supreme Court's application of a harmless error test to the improper exclusion of mitigating evidence at the 1995 resentencing was contrary to, or involved an unreasonable application of, clearly established federal law." (R. 180, Memorandum Opinion, May 28, 2010, at 1.) (Claim 2 in the petition)

Upon Cauthern's motion, this Court granted an expanded certificate of appealability on August 16, 2011. That certificate added the following issues to review: (a) "whether the prosecutor engaged in misconduct during closing argument at the resentencing hearing" (Claim 1); (b) "whether the State withheld favorable evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny" (Claim 4); (c) "whether trial counsel rendered Cauthern ineffective assistance at his 1995 resentencing hearing" (Claim 5) and (d) whether the heinous, atrocious, or cruel aggravator weighed by the jury was unconstitutional. (Claim 7).

DISCUSSION

I. Standard of Review

Where a district court has denied a habeas petition, and issued a certificate of appealability, "we review the district court's legal conclusions de novo and its factual findings for clear error." Hanna v. Ishee, 694 F.3d 596, 605 (6th Cir.2012) (citing Smith v. Mitchell, 567 F.3d 246, 255 (6th Cir.2009)). The district court's findings of fact are clearly erroneous when "we are left with the definite and firm conviction that a mistake has been committed." United States v. Canipe, 569 F.3d 597, 600 (6th Cir.2009) (citing United States v. Ellis, 497 F.3d 606, 611 (6th Cir.2007)).

II. AEDPA6

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may not grant a writ of habeas corpus with respect to any claim adjudicated on the merits in state court unless the state adjudication:

28 U.S.C. § 2254(d). A federal court may not issue the writ "simply because it concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). "[C]learly established federal law, as determined by the Supreme Court of the United States" refers to the holdings, rather than dicta, of the decisions of the Supreme Court. Howes v. Fields, ___ U.S. ___, 132 S.Ct. 1181, 1187 (2012) (quoting Williams, 529 U.S. at 362, 120 S.Ct. 1495).

A decision that is "contrary to" clearly established federal law occurs where "the state court arrives at a conclusion opposite to that reached by this Court on a question of law ... [or] confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at [the opposite] result." Williams, 529 U.S. at 405, 120 S.Ct. 1495. Furthermore, an unreasonable application must be distinguished from an incorrect application. Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011) (quoting Williams, 529 U.S. at 410, 120 S.Ct. 1495). A state court decision which is merely incorrect, rather than unreasonable, is still entitled to deference by a federal court in a habeas proceeding. Id. As a result, the more general the rule, the greater the leeway accorded to a state court's decision under federal habeas review. Id. at 786.

Under AEDPA this Court reviews the last reasoned state court decision. See Cullen v. Pinholster, 563 U.S. ___, 131 S.Ct. 1388, 1402, 179 L.Ed.2d 557 (2011) ("Section 2254(d) applies even where there has been a summary denial."). Even when a state court does not provide significant analysis, this Court must show significant respect to state court decisions:

Gagne v. Booker, 680 F.3d 493, 514 (6th Cir.2012) (en banc) (quoting Pinholster, 131 S.Ct. at 1402).7

III. Prosecutorial Misconduct

A. The Prosecutor's Misconduct at the Resentencing Hearing

During closing arguments at the 1995 resentencing hearing Assistant Attorney General Steve Garrett gave a rebuttal that included the following language:

(R. 27, Return Addendum 5, Vol. 4, State Rebuttal at Resentencing, at 463-65, Dec. 7, 2005.) Petitioner claims that this rebuttal amounted to prosecutorial misconduct, and seeks habeas relief on that basis.

B. Analysis

In reviewing a claim for habeas relief based on prosecutorial misconduct in a closing argument, "[t]he relevant question is whether the prosecutors' comments so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) (internal quotation marks omitted)). "Moreover, the appropriate standard of review for such a claim on writ of habeas corpus is `the narrow one of due process, and not the broad exercise of supervisory power.'" Id. (quoting Donnelly, 416 U.S. at 642, 94 S.Ct. 1868) (analyzing a habeas claim prior to the enactment of AEDPA). "Past decisions of [the Supreme Court] demonstrate that the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). "[T]he cardinal rule [is] that a prosecutor cannot make statements `calculated to incite the passions and prejudices of the jurors.'" Gall v. Parker, 231 F.3d 265, 315 (6th Cir.2000) (quoting United States v. Solivan, 937 F.2d 1146, 1151 (6th Cir.1991)).

The Tennessee Supreme Court found that the remarks did not unfairly prejudice Petitioner. They found that "while ... the prosecution's argument was patently improper and caution prosecutors against similar argument in the future, we nevertheless hold that in this case, the argument did not affect the sentence or render the jury's decision arbitrary or unreliable under the Eighth and Fourteenth Amendments to the United States Constitution." Cauthern, 967 S.W.2d at 738. The district court found that this decision did not contradict clearly established law, nor was it an unreasonable application of law to the facts of this case.

We, however, find that the Tennessee Supreme Court's decision was an unreasonable application of clearly established federal law.8 The full reasoning of the state court was that:

Cauthern, 967 S.W.2d at 737-38 (internal citations and footnotes omitted). However, in light of Supreme Court precedent, this conclusion is entirely unreasonable.

The prosecutor's remarks were, as both the district court and the Tennessee Supreme Court found, clearly improper. Respondent also agrees that the prosecutor's remarks at sentencing were improper. And there is no reasonable conclusion that one can draw from these remarks except that a jury would be inflamed by them. The prosecutor's remarks amounted to a litany of the kinds of remarks that courts disfavor. The prosecutor compared Petitioner to two of the most widely despised criminals of the then-recent past, one of whom was a serial killer who had tortured and raped his victims before murdering and dismembering them, and the other of whom was a child-murderer who after drowning her two sons triggered a nationwide manhunt when she fabricated a racially charged story that blamed the crime on a nonexistent black man. These remarks were solely inflammatory; and while we do not diminish the seriousness of Petitioner's crime, the Smith and Dahmer cases bore no relevant similarity to the crimes committed by Petitioner.

In addition, the prosecutor made biblical references, repeatedly referring to Petitioner as "the evil one," and referring to the Lord's Prayer. These types of references are particularly inappropriate in a sentencing proceeding, because they can create the inference that the death penalty is mandatory through their appeal to a higher authority, and because they allow a jury to delegate its own responsibility for the imposition of the sentence. See, e.g., Romine v. Head, 253 F.3d 1349, 1366 (11th Cir.2001); Sandoval v. Calderon, 241 F.3d 765, 777-78 (9th Cir.2000); Coe v. Bell, 161 F.3d 320, 351 (6th Cir.1998). The prosecutor made references that would encourage the jury to personally identify with the victims, and to feel as though failing to return sentence of death would endanger the families of the jury. The prosecutor included an appeal to the duty of the jury, which is a form of argument that the Supreme Court has expressly criticized. See United States v. Young, 470 U.S. 1, 18, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). While not binding as clearly established law, we note that the remarks here bear some resemblance to those in Bates v. Bell, 402 F.3d 635, 648 (6th Cir.2005), cert. denied, 546 U.S. 865, 126 S.Ct. 163, 163 L.Ed.2d 150 (2005) ("The prosecutors made it a theme of their summation that the jury's failure to sentence Bates to death would be akin to ordering the execution of Bates's next victim. Voting for a life sentence for this `rabid dog' was equivalent to putting a gun in his hand.").

The Tennessee Supreme Court also found that the remarks were only a part of the prosecutor's summation, but as Petitioner points out, up to 80% of the rebuttal was dedicated to improper argument, and the rebuttal was the final thing the jury heard before it met to decide upon a sentence. Ultimately, the question of whether Petitioner is entitled to relief hinges on the likelihood that the remarks prejudiced the defendant such that we can no longer be confident in the jury's sentence of death. Bates, 402 F.3d at 641 ("Rather than determining whether a constitutional error would have pushed a jury from a `not guilty' verdict to a `guilty' verdict, we must attempt to discover whether the constitutional error influenced the jury's decision between life and death."). Based on the number of abuses and the egregiousness of the prosecutor's conduct, we are convinced that no reasonable jurist could be confident in the result as returned by the jury.

While the district court found that the record supported the Tennessee's Supreme Court's findings that the remarks did not unduly influence the jury, we see no reasoned basis for that conclusion anywhere in the opinion. The district court noted that there was a great deal of evidence about Petitioner's guilt, but the weight of the evidence of guilt is completely and totally irrelevant to this inquiry. See Gregg v. Georgia, 428 U.S. 153, 190-92, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (discussing the advantages of bifurcated sentencing procedures in capital cases). One would hope that when a state court convenes to determine whether a defendant should be put to death that there would no longer be any lingering question of that defendant's guilt. The district court also noted that the trial court gave the curative instruction that statements by lawyers are not evidence. But that generic instruction would likely have been given regardless of what the prosecutor said; were we to accept the reasoning of the district court on this point, then there would never be a viable claim for prosecutorial misconduct, because the most basic of instructions would cure the potential for an inflamed jury. The district court further noted that the prosecutor's remarks were invited by the defense attorney, without explaining why that would matter with respect to our confidence in the decision reached. The district court also pointed out that the jury was unlikely to have been convinced that Petitioner was actually the devil. While that may be true, its real relevance is that it highlights the outlandish nature of the prosecutor's remarks. And one would not need to believe that Petitioner was himself the devil in order to have been improperly inflamed such that the verdict cannot be trusted.

Respondent argues (and the district court found) that because the jury returned only one sentence of death, for the murder of Rosemary, and returned only a sentence of life imprisonment for the murder of Patrick, we can assume that the jury was not improperly inflamed, because the prosecutor's remarks applied with equal force to both murders. But this argument is irrational; there were differences between the two murders, and it is equally plausible that given the high burden for imposing a death sentence, the remarks were what tipped the scale in favor of imposing such a sentence for the murder of Rosemary. Petitioner presented mitigating evidence, and there was a co-defendant, who was at least equally culpable, who was not sentenced to death. Given these facts, and given the extensive and egregious nature of the prosecutor's remarks, we cannot be confident in the result returned by the jury. Based on the quantity of prosecutorial misconduct, as well as the severity of that misconduct, no reasonable jurist could be confident that Petitioner was accorded a fair proceeding. Accordingly, we grant the petition for a writ of habeas corpus on the basis of prosecutorial misconduct.

IV. Petitioner's Eddings Claim

Petitioner argues that he should have been allowed to introduce a letter from his son as mitigation evidence at his resentencing. The letter read in full:

State v. Cauthern, 967 S.W.2d 726, 738 (Tenn.1998). The letter was excluded because the trial court found that "it was of negligible probative value and was cumulative to the other evidence presented." Id. The Tennessee Supreme Court, in its review of that decision, found that the failure to admit the evidence was harmless error, id. at 738-39, and it is that decision that is reviewed by this Court. The district court found that the state court decision not to admit the evidence was neither contrary to, nor an unreasonable application of, clearly established federal law, but later granted a certificate of appealability on the narrower of question of whether the Tennessee Supreme Court's holding that this was subject to harmless-error analysis violated the Constitution.

Petitioner alleges that the Tennessee Supreme Court's decision was an unreasonable application of clearly established law because it evaluated this claim through the rubric of harmless-error analysis, rather than regarding the error as a structural flaw requiring resentencing. At the outset, we note that no party appears to contest that the original decision not to admit the evidence was an error. There is no question that a defendant subject to the death penalty is permitted to introduce a wide range of evidence in mitigation. Failure to permit the sentencer to consider mitigation is a violation of the Eighth and Fourtheenth Amendments to the federal Constitution. Cauthern, 967 S.W.2d at 738 (citing McKoy v. North Carolina, 494 U.S. 433, 442, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990)). As the Supreme Court found in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), "the sentencer [may not] refuse to consider, as a matter of law, any relevant mitigating evidence." Id. at 114, 102 S.Ct. 869 (extending the rule from Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), that barred states from precluding mitigation evidence by statute) (emphasis in original). "The Constitution requires States to allow consideration of mitigating evidence in capital cases. Any barrier to such consideration must therefore fall." McKoy 494 U.S. at 442, 110 S.Ct. 1227 (1990) (emphasis in original).

In this case, the state court reasoned that while the trial court had erred in refusing to allow the evidence in, there was no basis upon which to overturn the conviction, because that error was harmless. It was harmless because the crucial points that a sentencing jury could glean from the evidence were permitted as mitigation evidence; the jury knew that Petitioner had a son who visited him regularly, and had seen a picture of Petitioner with his son. Cauthern, 967 S.W.2d at 739. The lower court had further instructed the jury that they could consider the fact that Petitioner had a minor son as a mitigating factor. Id. Therefore, the evidence did not affect the jury's verdict. Id. Petitioner now challenges the district court's determination that this was neither an unreasonable application of, nor contrary to, clearly established law because, he claims, the Tennessee Court of Criminal Appeals should have found that the failure to admit the evidence was structural, and thus required resentencing.

There is no clearly established federal law requiring states to review trial court's decisions regarding admission of mitigating or aggravating factors as structural defects. While the Supreme Court has remanded death sentences on the basis of the exclusion of relevant mitigation evidence, it has never categorically stated that it is improper for a state court to analyze such a claim as a matter of harmless error. The strongest possible precedent for Petitioner's argument is the Supreme Court's decision in Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). In that case, the Supreme Court found that:

Id. at 8, 106 S.Ct. 1669 (citation omitted). Furthermore, "[u]nder our decisions, it is not relevant whether the barrier to the sentencer's consideration of all mitigating evidence is interposed by statute, by the sentencing court, or by an evidentiary ruling." Mills v. Maryland, 486 U.S. 367, 374, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988).

While those cases present a relatively strong argument for Petitioner, it is not enough to overcome the AEDPA standard. In those cases, the issue was that the mitigation evidence had been excluded entirely; the jury had not been able to consider the argument for mitigation at all, or had (as in Mills) misunderstood its directions such that it chose not to consider the evidence. Therefore, in those cases, harmless error analysis was impossible. See Davis v. Coyle, 475 F.3d 761, 774-75 (6th Cir.2007) (discussing possible remedies when a court improperly excludes mitigating evidence). But in this case, the Court of Criminal Appeals found that the only relevant piece of information was cumulative. Here, the Tennessee Courts were able to review the determinations and find that the error was harmless, given that the jury heard evidence as to the same mitigation factor to which the excluded evidence would have gone.

In addition, the Supreme Court has repeatedly held that states can review mitigation decisions on the basis of harmless error review when the issue is the weighing of aggravating and mitigating factors. See Parker v. Dugger, 498 U.S. 308, 319, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991); Clemons v. Mississippi, 494 U.S. 738, 752, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) ("Even if under Mississippi law, the weighing of aggravating and mitigating circumstances were not an appellate, but a jury, function, it was open to the Mississippi Supreme Court to find that the error which occurred during the sentencing proceeding was harmless.")

Finally, it should be noted that the federal statute authorizing review of a federal death sentence specifies that "[t]he court of appeals shall not reverse or vacate a sentence of death on account of any error which can be harmless, including any erroneous special finding of an aggravating factor, where the Government establishes beyond a reasonable doubt that the error was harmless." 18 U.S.C. § 3595(c). It would be strange to find that the federal Constitution demands a particular form of review for state court errors regarding mitigation evidence when it does not demand the same on direct appellate review of federal death sentences.

Accordingly, the state court decision with respect to the entry of this mitigation evidence did not violate clearly established law when it applied harmless error analysis to the lower court's evidentiary ruling.

V. Petitioner's Brady Claim

Petitioner claims that the state courts erred in failing to reverse his conviction on the basis that the state withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, Petitioner claims that there were three pieces of information that should have been turned over to him: a police report from January 23, 1987 prepared by Detective R.J. DiFiore, which addressed an interview with James Andrew, a witness for the prosecution; the fact that Andrew had received money from the police in exchange for his statement to the police; and finally, the fact that Andrew's car had been vandalized after Petitioner was arrested.9

The police report memorialized the original statement given to the police by Andrew. According to the report, Eric Barbee, a friend of Patterson's, had come to Andrew's home, and told Andrew to contact Patterson's attorney to report that Patterson had stayed in the car while Petitioner committed the rape and murders, and to further report that he had not seen Petitioner with Patterson on the night of the murders. Petitioner alleges that the prosecution also suppressed evidence that Andrew had contacted the police expecting to receive a $5,000.00 reward, and did in fact receive some amount of money. Finally, Petitioner alleges that the prosecution suppressed evidence that Andrew's car had been vandalized, sometime after Petitioner was arrested and after Barbee had contacted Andrew. The Tennessee Court of Criminal Appeals found that while the evidence was favorable to Petitioner, and had been suppressed, Cauthern v. State, 145 S.W.3d 571, 621 (Tenn.Crim. App.2004), this evidence was not material; because Petitioner had not shown that had it been disclosed to him, there was a reasonable probability that the result of either the trial or the resentencing would have been different. Id. The district court found that the state court's determination did not give rise to habeas relief, and declined to grant the writ on the basis of the alleged Brady violations.

Under Brady, a defendant's rights under the Due Process Clause are violated when a state suppresses material exculpatory information. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Supreme Court has stated that the elements of a Brady claim are: "The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). In this case, the state court found that the evidence was favorable and had been suppressed, but was not material.10 Cauthern, 145 S.W.3d at 619. Accordingly, the court declined to reverse either Petitioner's conviction or sentence on the basis of Brady violations.

To determine if evidence is material, courts must use the standard of reasonable probability; if there is a reasonable probability that, had the evidence been turned over, the underlying proceeding would have had a different result, then the evidence is material. Youngblood v. West Virginia, 547 U.S. 867, 870, 126 S.Ct. 2188, 165 L.Ed.2d 269 (2006). "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Strickler, 527 U.S. at 289-90, 119 S.Ct. 1936 (quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)) (internal quotation marks and citations omitted). Additionally, a court examining the materiality of evidence under Brady examines the evidence in its totality, rather than as a series of individual items. Kyles, 514 U.S. at 436-37, 115 S.Ct. 1555.

Petitioner alleges that this evidence was material because it could have been used to impeach Andrew's testimony at both the original trial and the resentencing hearing.11 During state collateral proceedings, the Tennessee Court of Criminal Appeals found that the evidence was immaterial, because even if Andrew's credibility had been completely undermined, the verdict would have remained intact. This was in part because Petitioner was convicted under the felony-murder rule, and accordingly, there was no need for the state to prove that Petitioner had himself killed the Smiths. Therefore, even without Andrew's testimony as to Petitioner's admissions, there was sufficient proof of Petitioner's guilt to support the verdict. Cauthern, 145 S.W.3d at 620. It further reasoned that the testimony as to Barbee's attempt to influence Andrew was irrelevant because Andrew gave a statement to police before Barbee contacted him, and in any event, Andrew's testimony did not negate Patterson's involvement in the crimes, which was the reason Barbee contacted him. Finally, even without evidence of Andrew's monetary reward, the resentencing jury declined to impose a death penalty for one killing, and the distinguishing factor of the other killing was that the victim was tortured, a topic to which Andrew's testimony had no relevance. Id. at 621.

Petitioner presents no substantive argument that the state court's decision violated clearly established law. His most compelling argument is that because his claim at sentencing related to relative culpability between him and Patterson, the evidence that Patterson attempted to tamper with the witness was material to the jury's determination of greater relative culpability. But even had that evidence come in, the state court's judgment would still have been supported by another witness' account that Petitioner had raped Rosemary. And Petitioner cites no cases in support of his argument, nor can the author find any supporting Supreme Court precedent for the contention that relative culpability gives rise to a definite inference of materiality under Brady.

Furthermore, although Andrew's discussion of Petitioner's boasts about killing Rosemary might have influenced the jury to impose a sentence of death, it was not the only evidence supporting that sentence. Petitioner does not show any clearly established law that would suggest that his inability to impeach Andrew would have affected the jury's decision given the overwhelming physical evidence that Rosemary was tortured. Because Andrew's testimony at the resentencing was relatively brief, and there was overwhelming evidence as to the key points of his testimony, the Tennessee court's finding that his impeachment would not have undermined confidence in the outcome is not reversible under AEPDA's deferential standard of review.

Accordingly, the decision of the district court to deny Petitioner's claim for habeas relief under Brady is affirmed.

VI. Ineffective Assistance of Counsel

A. Standard of Review

The standard of review for this claim, as well as the governing law under AEDPA is the same as provided in the earlier section of this decision; however, it should be noted that the Supreme Court has made clear that claims under Strickland are extremely difficult under AEDPA:

Richter, 131 S.Ct. at 787-88 (citations and internal quotation marks omitted).

B. Petitioner's claim of ineffective assistance of counsel

Petitioner's next claim is that his counsel was ineffective because it failed to adequately investigate or present his claims for mitigation. The district court summarized these claims as failure to:

(R. 167, Mar. 31, 2010, Opinion, at 69.)

The question of ineffective assistance of counsel is analyzed pursuant to the two-part test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner must show that counsel's performance was objectively unreasonable, and that he was prejudiced because of this ineffective assistance.

Counsel's performance is deficient where it falls below an objectively reasonable standard. Strickland, 466 U.S. at 686-87, 104 S.Ct. 2052; Richter, 131 S.Ct. at 787. "A court considering a claim of ineffective assistance must apply a `strong presumption' that counsel's representation was within the `wide range' of reasonable professional assistance." Richter, 131 S.Ct. at 787 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Petitioner bears the burden of overcoming the "presumption that the challenged conduct might be considered sound trial strategy." Hanna, 694 F.3d at 612. That is to say, Petitioner must show that counsel made errors "so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Richter, 131 S.Ct. at 787 (internal quotation marks omitted).

"To establish Strickland prejudice a defendant must `show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Lafler, 132 S.Ct. at 1384 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). "`A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Richter, 131 S.Ct. at 787 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). "Counsel's errors must be so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 787-88 (internal quotation marks omitted).

1. Petitioner's Claim of Ineffective Assistance Due to Counsel's Failure to Present Testimony of His Step-Siblings

Petitioner's first claim for ineffective assistance of counsel was that his attorney failed to present testimony at his sentencing hearing from Petitioner's step-siblings as to his abusive childhood. Three of his step-siblings, Melinda Cauthern Allen, Roy "Bud" Cauthern, Jr., and Eveann Cauthern Palmer, later testified at a post-conviction evidentiary hearing.12 Their testimony detailed a litany of abuse, mostly inflicted by Dagmar Cauthern, Petitioner's grandmother. That abuse included physical abuse with brooms, belts and other implements. The abuse was largely unpredictable. There was also emotional abuse, including the isolation of the children from friends, and verbal insults. In addition, home discipline was rigidly enforced with the threat of physical violence and deprivation of food.

The Tennessee Court of Criminal Appeals found that this did not give rise to a claim for ineffective assistance of counsel, because Petitioner failed to show that his trial counsel's representation was deficient, and because there was no prejudice. The deficiency argument was based largely upon the fact that:

Cauthern v. State, 145 S.W.3d at 606 (alterations in original).

Before this Court, Petitioner contends—and the state does not meaningfully contest—that the failure of counsel to investigate his family constituted deficient performance. An unexplained failure to investigate possible mitigation evidence is objectively unreasonable conduct by an attorney in a capital case. See Wiggins v. Smith, 539 U.S. 510, 521-22, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). As the Supreme Court found in Strickland:

Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052 (quoted with approval in Wiggins); see also Porter v. McCollum, 558 U.S. 30, 39-40, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009). But here, there is no evidence anywhere in the record that explains counsel's failure to speak to Petitioner's step-siblings. The district court summarized defense counsel's explanations as:

(R. 167, Mar. 31, 2010, Opinion, at 73.) Even if one assumes that the testimony of two of the step-siblings suggests that the state court did not err when it found that they might not even have testified unless it was acceptable to their father (who had died by the time the post-conviction hearing took place), that would only go to possible prejudice; the failure to contact the siblings at all was simply deficient performance. Were it true that the siblings would not have testified, then a court could plausibly find that there was no prejudice because of counsel's failure to investigate the possibility of their testimony. But to fail to investigate a defendant's nearest relatives at all is deficient performance, regardless of what the end result might have been.

Based on the testimony of the step-siblings, there was no factual basis for the state court's finding that they would not have testified. While Melinda, when asked if she would have assisted Petitioner in 1987, said "I doubt it," she immediately afterwards added that she would have helped if properly approached in 1988 or 1995. (Joint App'x at 1227-1228.) Roy admitted that he might not have done it if it would have been hurtful to their father, but also added that he assumed his father would have wanted him to testify. (Id. at 1336-37.) And Eveann was unequivocal in stating that she would have testified on Petitioner's behalf. (Id. at 1370-71.) Therefore, even if this Court defers entirely to the state court's findings with respect to Roy and Melinda, there would still be a finding of deficient performance, because at least one of these step-siblings would have testified, and only one was necessary to elicit the relevant information.

Moreover, even were the failure to investigate based on some sort of strategic decision—and unlike a decision not to have a potential witness testify after an investigation, it is hard to imagine what that strategy would be—"[t]he relevant question is not whether counsel's choices were strategic, but whether they were reasonable." Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). In addition, as the Supreme Court recently found, "[w]e certainly have never held that counsel's effort to present some mitigation evidence should foreclose an inquiry into whether a facially deficient mitigation investigation might have prejudiced the defendant." Sears v. Upton, ___ U.S. ___, 130 S.Ct. 3259, 3266, 177 L.Ed.2d 1025 (2010).

Though the issue was effectively foreclosed by the state's finding of no deficient performance, and there was no need to address the second prong of Strickland, the state court went on to find a lack of prejudice, arguing that:

Cauthern v. State, 145 S.W.3d at 609 (some citations and quotation marks omitted).

But this is an unreasonable interpretation of federal law. First, as noted above, a criminal defendant, particularly in a death penalty case, is given wide latitude in the introduction of mitigation evidence. See Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). Next, it is clearly established law that evidence of abuse is significant to a jury's determination of moral culpability. The Supreme Court has held that "the graphic description of [Petitioner's] childhood, filled with abuse and privation, or the reality that he was `borderline mentally retarded,' might well have influenced the jury's appraisal of his moral culpability." Williams v. Taylor, 529 U.S. 362, 398, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see Penry v. Lynaugh, 492 U.S. 302, 315, 109 S.Ct. 2934, 106 L.Ed.2d 256 (requiring jury to be able "to fully consider and give effect to the mitigating evidence of [Petitioner's] mental retardation and abused background.") (abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)). The Tennessee Court of Criminal Appeals found that the failure to present this evidence was not prejudicial, because "a jury reasonably could reject, or be insulted by, any suggestion that the petitioner's criminal actions were attributable to a disadvantaged background." Cauthern v. State, 145 S.W.3d 571, 609 (Tenn.Crim.App.2004). But that kind of speculation is precisely why the failure to introduce this evidence was prejudicial. While some degree of speculation is necessary in determining prejudice, Goodwin v. Johnson, 632 F.3d 301, 328 (6th Cir.2011) (citing Sears, 130 S.Ct. at 3265-66 (2010)), the state court's speculation was inapposite. The fact that the jury might have taken this evidence as proof that Petitioner's childhood did not mitigate his culpability does not eliminate the possibility that there was a reasonable probability that the jury would have found that it did mitigate his culpability. Without citing a single federal case, the Tennessee court found that this evidence would not have led a reasonable jury to find a lesser degree of moral culpability. But the only other evidence of the potential impact of abuse on Petitioner consisted of his own testimony, which is on its face less compelling than the testimony of a less interested party. Testimony from his siblings could very well have elicited sympathy, or given the jury greater reason to consider life imprisonment. See e.g., Johnson v. Mitchell, 585 F.3d 923, 941-43 (6th Cir.2009) (finding that defense counsel's failure to investigate leads that might have led to evidence of abuse was ineffective, and that the state court's determination of the opposite conclusion violated clearly established law). The Tennessee court's decision was therefore an unreasonable application of the law, given the facts in this case, and accordingly, the decision of the district court is reversed.

2. Petitioner's Claim of Ineffective Assistance Due to Counsel's Failure Investigate Patterson's Involvement in a Similar Crime in New Mexico

Petitioner's next claim for ineffective assistance of counsel is that trial counsel failed to adequately investigate Patterson's background. Patterson was suspected of a rape and murder in New Mexico. Petitioner argues that had this information been available, and presented to the jury, it would have supported his theory that Patterson had greater moral culpability.13 The Tennessee Court of Criminal Appeals found that:

Cauthern v. State, 145 S.W.3d at 616.

On this claim, however, Petitioner cannot show deficient performance. First, it is unclear that a reasonable investigation would have turned up this evidence before trial. Even assuming that Petitioner could show deficient performance, it was not unreasonable for the state court to find that there was no prejudice as to this evidence. The evidence tying Patterson to the New Mexico killing was inadmissible in the proceedings before the trial court. Id. at 597. The case against Patterson in New Mexico remains technically unsolved, and as the district court found, a reasonable juror would not have concluded that the evidence from the 1981 killing in New Mexico had any bearing on Petitioner's relative culpability, especially as an existing witness had already put Patterson's admissions regarding his lead role in the killings before the jury. Id. This evidence might have reasonably found Patterson to be more culpable and thus resulted in his being sentenced to death, but the evidence is of no importance with respect to Petitioner's culpability, given the otherwise overwhelming evidence of Petitioner's guilt. Accordingly, because even if the investigation was deficient, there was no prejudice based on its failure, Petitioner's claim with respect to the evidence of Patterson's involvement in the New Mexico killing is denied.

VII. The Court's Use of the "Heinous, Atrocious, or Cruel" Aggravating Factor

Petitioner's final claim is that Tennessee's use of the "heinous, atrocious, or cruel" ("HAC") aggravating factor is unconstitutionally vague. Particularly, he claims that the state court erred when it found that the trial court's error in using the incorrect version of the aggravating statute was harmless. The clearly established standard for evaluating whether a constitutional error was harmless is that the state must show "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Tennessee amended its HAC statute in 1989. Prior to 1989, the statute stated "[t]he murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind." Tenn.Code Ann. § 39-2-203(i)(5) (1982). In 1989, the statute was amended to state that "[t]he murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death." Tenn.Code Ann. § 39-13-204(i)(5) (1991). At the 1995 resentencing the court used the post-1989 language. As the Tennessee Supreme Court found, this was error; the court should have used the version of the statute that was in effect at the time of the offense. State v. Cauthern, 967 S.W.2d 726, 732 (1998). But it found that the difference between the two statutes was harmless, in light of the court's instructions to the jury.

This decision was not contrary to or an unreasonable application of federal law. First, the Supreme Court has found that HAC aggravators are constitutionally permissible if construed so as to require "torture or serious physical abuse." Maynard v. Cartwright, 486 U.S. 356, 364-65, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). And as the district court found, the HAC language used by the state court, if accompanied by a limiting instruction, has been expressly approved of by the Supreme Court. Bell v. Cone, 543 U.S. 447, 455, 125 S.Ct. 847, 160 L.Ed.2d 881 (2005). In Cone, the Supreme Court stated that even if it assumed that the Sixth Circuit was correct when it found that Tennessee's HAC aggravator was unconstitutionally vague on its face, it could not presume that the state court had failed to cure this vagueness. Id. at 459-60, 125 S.Ct. 847.

At resentencing, the trial court gave explanations as to the terms used in the aggravating factor. It defined heinous, atrocious, or cruel according to the correct standard. State v. Cauthern, 967 S.W.2d at 732. It further defined torture correctly. Id. The only error in the court's instructions was the substitution of "serious physical abuse beyond that necessary to produce death" in place of the older "depravity of mind" language. But that error was inconsequential because there was ample evidence of torture. As the court found:

Id.

Accordingly, it was not a violation of clearly established law for the Tennessee Supreme Court to find this error harmless. What law does exist with respect to Tennessee's HAC aggravator clearly supports the conclusion that the statute, with the limiting instructions given, is constitutional, and the difference in language between the two versions of the statute was irrelevant to the determination. Therefore the decision of the district court with respect to this claim is affirmed.

CONCLUSION

For the foregoing reasons, we AFFIRM the decision of the district court with respect to Petitioner's claims under Eddings and Brady, as well as with respect to state's use of the heinous, atrocious, or cruel aggravator at sentencing. However, we GRANT the petition for a conditional writ of habeas corpus based on Petitioner's claims of ineffective assistance of counsel and prosecutorial misconduct, and order the state to commence resentencing proceedings for Petitioner within 180 days or vacate his sentence of death.

ROGERS, Circuit Judge, dissenting.

I join all but parts III. B. and VI. B. 1. of the majority's opinion.

First, the Tennessee Supreme Court was not unreasonable in finding insufficient prejudice from the prosecutor's clearly improper remarks. Equating the defendant with the devil incarnate, Susan Smith, and Jeffery Dahmer was clearly improper. But the Tennessee Supreme Court could reasonably find that this extreme and belabored metaphor did not cause the jury to impose the death sentence, in the face of the extraordinarily brutal facts of this case. The Tennessee Supreme Court found that:

State v. Cauthern, 967 S.W.2d 726, 732 (Tenn.1998). Although the Tennessee Supreme Court's reasoning was brief with regard to the prejudice caused by the prosecutor's remarks, its central reasoning was clear: "the misconduct must be viewed together with the overall record and the overwhelming strength of the State's case. The evidence supported the aggravating factor relied on by the State, as well as a finding that this factor outweighed the evidence of mitigating factors." Id. at 737-38.

This analysis is a reasonable application of Supreme Court law. It mirrors the reasoning used by the Court in Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). As the Supreme Court there explained, "it is not enough that the prosecutors' remarks were undesirable or even universally condemned. The relevant question is whether the prosecutors' comments so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id. at 181, 106 S.Ct. 2464 (internal quotation marks omitted). In this case, as in Darden, "[t]he weight of the evidence against the petitioner was heavy; the overwhelming eyewitness and circumstantial evidence to support a finding of guilt on all charges reduce the likelihood that the jury's decision was influenced by the closing argument." Id. at 182, 106 S.Ct. 2464 (internal quotation marks and citation omitted). Considering the substantial evidence of the grisly manner in which Rosemary was killed, it was reasonable to conclude that the prosecutor's remarks did not rise to the level of a due process violation because the jury would not have needed to rely on the prosecutor's remarks to find the aggravating factor.

The Tennessee Supreme Court also noted that the prosecutor's closing argument appeared to be a response to defense counsel's suggestion that a civilized society should not impose the death penalty and a rebuttal of Cauthern's evidence of his rehabilitative potential. Cauthern, 967 S.W.2d at 737-38. The concept of invited response was relied upon by the Supreme Court in Darden. There the Court explained that "the idea of `invited response' is used not to excuse improper comments, but to determine the effect on the trial as a whole." Darden, 477 U.S. at 182, 106 S.Ct. 2464. Whether the response is invited is relevant to the analysis because a prosecutor's improper remarks are less likely to affect the fairness of the trial if their purpose was merely to "right the scale" in response to a defendant's arguments. United States v. Young, 470 U.S. 1, 12-13, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). Although the prosecutor's remarks went well beyond what was necessary to respond to the defense, it was still reasonable for the state court to conclude that the prosecutor's remarks were less likely to cause prejudice in the context of the defense's commentary on the propriety of the death penalty in a civilized society.

The reasonableness of the state court's decision is buttressed by the fact that just last year the Supreme Court reminded us that "the Darden standard is a very general one, leaving courts `more leeway ... in reaching outcomes in case-by-case determinations.'" Parker v. Matthews, ___ U.S. ___, 132 S.Ct. 2148, 2155, 183 L.Ed.2d 32 (2012) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). The less specific a rule is, the more room there is for disagreement over how the rule ought to apply, and the more likely a given application is to be reasonable. Yarborough, 541 U.S. at 664, 124 S.Ct. 2140. The generality of the Darden standard makes it all the more difficult to find that the Tennessee Supreme Court's application of federal law was unreasonable.

Moreover, even if the Tennessee high court's analysis was so cryptic and unpersuasive as to be unreasonable, that would not necessarily mean that Cauthern succeeds on this appeal, but rather that we would decide de novo whether there was a constitutional violation. See Rice v. White, 660 F.3d 242, 257 (6th Cir.2011). Under an independent application of the relevant standard from Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), the error was harmless. First, the factors discussed above—the significant evidence of torture and the fact that defense counsel invited the prosecutor's response—weigh in favor of a finding of no injurious effect on the verdict. Next, almost immediately after the prosecutor's remarks, the judge instructed the jury that "[s]tatements, arguments and remarks of the lawyers ... [are] not evidence" and later that the jury should make its decision based on the facts and not "sympathy or prejudice." Even if generic, such an instruction is still relevant in a harmless error review. The fact that the instructions were given is a factor that should be considered when evaluating the effect of an error on the verdict. The significant evidence before the jury along with the "important presumption that jurors followed the trial court's instructions," United States v. Guzman, 450 F.3d 627, 629 (6th Cir.2006), provides a rational explanation for the sentence: the jury followed its instructions and sentenced Cauthern based on the evidence before it—not because of the prosecutor's egregious remarks.

The presumption that the jury followed the instructions it was given is bolstered by the fact that it sentenced Cauthern to death for Rosemary's death but not for Patrick's. The evidence before the jury much more clearly established that Rosemary's death was heinous, atrocious, or cruel. Rosemary heard her husband being killed, was raped twice, suffered through a botched strangling, and finally was killed in a particularly gruesome manner. Patrick's death, horrible as it was, did not have the same indicia of torture as his wife's. The jury's decision to impose different punishments does not definitively answer whether the remarks affected the verdict, but the fact that the jury behaved rationally enough to distinguish between the circumstances surrounding the murders is another factor that indicates the jury was weighing the evidence and not the prosecutor's improper remarks when it returned the death sentence. Together, these facts indicate that the prosecutor's comments did not have a substantial and injurious effect on the verdict.

Second, the Tennessee Court of Criminal Appeals was not unreasonable in finding insufficient prejudice from defense counsel's failure to interview Cauthern's step-siblings. Prejudice, the second prong of the Strickland analysis, is shown when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As the state court explained, if the step-siblings had testified, their testimony would not have been particularly helpful to Cauthern. Each of his step-siblings would have testified that they had been abused by Dagmar (Cauthern's grandmother), but that Cauthern was favored as the "golden child" of the family. Cauthern v. State, 145 S.W.3d 571, 584 (Tenn.Crim.App.2004) (finding that Melinda would have testified that Cauthern was "`the apple of [Dagmar's] eye'"); id. at 585 (finding that Bud would have testified that Cauthern was initially the favorite child but would be subject to unpredictable abuse when he became older); id. (finding that Eveann would have testified that she and Cauthern were "golden children"). Based on these findings, the Court of Criminal Appeals concluded that "[e]ven though the petitioner's step-siblings undoubtedly endured abusive, isolated childhoods, it is by no means obvious from the proof that the petitioner's childhood rivaled theirs." Id. at 609. In fact, testimony from the step-siblings could well have hurt Cauthern because the jury could have concluded that Cauthern's step-siblings "do not manifest obvious antisocial traits or violent tendencies" despite having been subject to greater abuse at the hands of Dagmar. Id. Concluding that there was no reasonable probability that the evidence of Cauthern's childhood would have changed the jury's imposition of the death penalty was not an unreasonable application of Strickland.

To be sure, the majority articulates reasonable bases for disagreeing with the Tennessee Supreme Court and the Court of Criminal Appeals on the two prejudice issues. But as the Supreme Court has repeatedly explained:

Renico v. Lett, 559 U.S. 766, 773, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010) (citations and internal quotation marks omitted).

In a meticulous 168-page opinion, District Judge Trauger thoughtfully and carefully disposed of multiple arguments presented by petitioner's counsel. I would affirm the judgment of the district court denying the habeas writ.