Benny Lee Hodge v. LAURA PLAPPERT, Warden

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0118p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BENNY LEE HODGE,
Petitioner - Appellant,
v.
LAURA PLAPPERT, Warden,
Respondent - Appellee.
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No. 17-6032
On Petition for Rehearing En Banc.
United States District Court for the Eastern District of Kentucky at Pikeville.
No. 7:13-cv-00005—David L. Bunning, District Judge.
Argued En Banc: October 30, 2024
Decided and Filed: May 7, 2025
Before: SUTTON, Chief Judge; SILER, MOORE, CLAY, GRIFFIN, KETHLEDGE, WHITE,
STRANCH, THAPAR, BUSH, LARSEN, NALBANDIAN, READLER, MURPHY, DAVIS,
MATHIS, BLOOMEKATZ, and RITZ, Circuit Judges.
_________________
COUNSEL
ARGUED: Dennis J. Burke, DEPARTMENT OF PUBLIC ADVOCACY, LaGrange,
Kentucky, for Appellant. Matthew F. Kuhn, OFFICE OF THE ATTORNEY GENERAL OF
KENTUCKY, Frankfort, Kentucky, for Appellee. ON SUPPLEMENTAL BRIEF Dennis J.
Burke, DEPARTMENT OF PUBLIC ADVOCACY, LaGrange, Kentucky, Luke P. Ihnen
Chavis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville,
Tennessee, for Appellant. Matthew F. Kuhn, Jacob M. Abrahamson, OFFICE OF THE
ATTORNEY GENERAL OF KENTUCKY, Frankfort, Kentucky, for Appellee.
BUSH, J., delivered the opinion of the court in which SUTTON, C.J., and
SILER, GRIFFIN, KETHLEDGE, THAPAR, LARSEN, NALBANDIAN, READLER,
MURPHY, DAVIS, MATHIS, BLOOMEKATZ, and RITZ, JJ., joined. NALBANDIAN, J.,
(pp. 27–30), delivered a separate concurring opinion in which GRIFFIN and THAPAR, JJ.,
joined. BLOOMEKATZ, J. (pp. 31–33), delivered a separate concurring opinion. WHITE, J.,
>

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(pp. 34–47), delivered a separate opinion concurring in part and dissenting in part in which
MOORE, CLAY, and STRANCH, JJ., joined.
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OPINION
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JOHN K. BUSH, Circuit Judge. Benny Lee Hodge sits on death row for the brutal
murder of Tammy Dee Acker. In this habeas appeal, we address whether Hodge is entitled to
relief based on claims of ineffective assistance of counsel, jury tampering, and jury bias that
allegedly arose during his Kentucky state court trial. Hodge procedurally defaulted the latter
claim, so it is not properly before us. For Hodge’s ineffective-assistance argument, we review
the Kentucky Supreme Court’s postconviction decision under Strickland v. Washington,
466 U.S. 668 (1984). For his jury-tampering allegation, we review the state court’s
determination of no credible evidence evincing such misconduct.
We address both claims by applying § 104 of the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), codified in relevant part at
28 U.S.C. § 2254(d). That statutory provision directs us not to decide how we would have ruled
on the pertinent issues in the first instance, had we sat on the state appellate bench. Rather, we
apply AEDPA’s mandated deference to the state court decision to determine (1) whether the
Kentucky Supreme Court’s constitutional interpretation and application were objectively
unreasonable, and (2) whether it engaged in objectively unreasonable postconviction fact
finding. We answer no to both inquiries. Therefore, we AFFIRM the district court’s denial of
the writ of habeas corpus.
I. BACKGROUND
A. The Crime
Courts have described Hodge’s crime as “heinous,” “brutal,” “vicious,” “calculated,” and
“exceedingly cold-hearted.” Hodge v. White, No. CV 13-5-DLB-EBA, 2016 WL 4425094, at
*28 (E.D. Ky. Aug. 17, 2016); see Hodge v. Commonwealth, No. 2009-SC-000791-MR, 2011
WL 3805960, at *4 (Ky. Aug. 25, 2011). It was.

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In the early evening of August 8, 1985, Hodge joined Donald Bartley and Roger
Epperson to rob Dr. Roscoe Acker at his home in Fleming-Neon, Kentucky. The 77-year-old
widowed physician kept a large amount of cash in a locked safe at his house. He and his late
wife, a nurse, had saved the money over almost 40 years of marriage before she died of cancer.
Prior to the crime, Dr. Acker’s home had been “cas[ed]” by at least one of the robbers “for three
or four years.” R.27-7, PgID# 4039; R.27-5, PgID# 3914. The men had their sights on that safe.
If the crime spree had stopped with the contents of the safe, this death-penalty habeas
appeal would not be before us. But Hodge and his accomplices decided beforehand that they
would “leave no witnesses.” R.27-7, PgID# 4042. In particular, Hodge made sure that Dr.
Acker’s daughter, Tammy Dee Acker—at home to take care of her mourning father and
preparing to return to college the next day—would never leave the house again alive. Hodge
later told his cellmate that it was “the smart thing to do” to “kill all witnesses when you commit
any crime so nobody can testify against you.” R.27-5, PgID# 3915.
The evening of crime began with a white-collar ruse. After surveilling Dr. Acker’s home
and nearby medical office for three days, Hodge and Bartley rang the doorbell of the residence
around 6:30 p.m. Epperson had met Dr. Acker before, so he stayed back in the car. Hodge and
Bartley wore suits and appeared neatly groomed. Their looks facilitated their con: they
claimed to be FBI agents when Tammy answered the door. They carried a briefcase, a
.41 magnum revolver, a .38 police revolver, badges, and IDs—“the whole nine yards.” R.27-7,
PgID# 4048–49. They said they needed to ask Dr. Acker “a few questions” about someone they
were investigating. R.27-7, PgID# 4041. Tammy responded that her father was away, so the
men said they would return later. Hodge and Bartley then rejoined Epperson in their car, where
they staked out the home for a few more hours.
When the doctor came home from work later that evening, Hodge and Bartley resumed
their detective disguise. This time, Tammy answered the doorbell through the home’s intercom
system. Hodge and Bartley again identified themselves as FBI agents there to speak to her
father. Dr. Acker came out onto the front porch, where the visitors asked him for a written
statement about a previous business acquaintance. Believing the posers to be who they said they
were, Dr. Acker eventually led them inside his home after some coaxing by Hodge. Hodge also

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told Dr. Acker that someone needed to witness his statement. At her father’s behest, Tammy
agreed to serve that role.
But what Tammy witnessed was far from what she had expected. The pretenders
dropped their disguises when Hodge pulled out a gun. He held the physician at gunpoint and
ordered Bartley to tie Tammy up. Bartley did as Hodge directed, grabbing the young woman,
carrying her to the back room, and binding her there. She begged him, “please don’t hurt my
Dad. My mother has just died.” R.27-7, PgID# 4046. Despite promising her that “[e]verything
is going to be all right,” Bartley gagged her, put a cloth shirt over her head, and left her lying
face down on the floor. R.27-7, PgID# 4046–47. He then returned from Tammy’s room to the
kitchen. There, Hodge continued to train his gun on Dr. Acker as Bartley tied him up, covered
his head with a sheet, and forced him onto the floor.
At some point, Hodge and Bartley radioed Epperson in the car to come inside. He did so,
and the three proceeded to “ransack[]” the Acker home until finding the safe. R.26-12, PgID#
3300. At about that time, Dr. Acker suffered a blow to the ribs before being asked for the
combination, which he gave. But the robbers still could not open the safe. So they dragged Dr.
Acker to the vault and forced him to do it. Inside were stacks of cash—nearly $2 million in
total—along with jewelry and guns.
The intruders then replaced the sheet they had removed from Dr. Acker for him to unlock
the safe. Tammy’s head remained covered. But the assailants believed the Ackers had seen too
much. Epperson asked, “which one do you want, brother?” R.27-7, PgID# 4051. Hodge
responded, “it don’t matter to me. I’ll take the girl,” and went to Tammy’s room. R.27-7, PgID#
4051. Whatever Hodge did, Tammy survived. Hodge returned and told his accomplices, “she’s
not dead.” R.27-7, PgID# 4053. So, he grabbed a stainless-steel butcher knife that Epperson had
handed him from the kitchen and returned to Tammy’s bedroom, where she was still bound and
gagged.
Hodge stabbed Tammy at least 10 times. The “superficial” slices tore through her ribs
and other cartilage. R.26-16, PgID# 3499. The deeper cuts pierced her lungs, liver, and
diaphragm, exiting through her breast and stomach. Hodge drove the blade into the center of

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Tammy’s back and completely through her body three times. Hodge later told Epperson the
knife had gone “all the way through her to the floor.” R.27-8, PgID# 4064. That’s how Hodge
confirmed his victim was dead.
Tammy died of hemorrhage from the stab wounds. A pathologist testified to the
“considerable amount of force” the killing would have required. R.26-16, PgID# 3494–95.
Paramedics found her body in a semi-fetal position with wounds around her neck and breast.
Lodged in her back was the butcher knife.
Tammy was not the only victim. While Hodge stabbed Tammy, Bartley sought to kill
Dr. Acker. He used the electrical cord from a curling iron to choke the physician until he lost
consciousness.
After committing their crimes at the Acker home, Hodge and his cohorts fled for Florida.
They thought they had left no eyewitness alive. But they were wrong. Dr. Acker survived the
strangulation and even an accompanying heart attack. Hodge later recounted, per his cellmate’s
testimony, that “the f*cker didn’t die”—“they tried to kill him,” and “strangled him . . . but the
f*cker didn’t die.” R.27-5, PgID# 3917. But it wasn’t Hodge’s “fault” that Dr. Acker survived.
The cellmate testified that Hodge told him, “I did mine right and she died.” R.27-5, PgID# 3917.
The doctor regained consciousness in a pool of his own blood, only to experience the
horror of finding Tammy lifeless in the corner of her room with a “butcher knife protruding out
of her back.” R.26-12, PgID# 3301; R.26-14, PgID# 3409. His daughter who had “stayed with
[him] that school year to take care of [him] because she loved [him],” was dead. R.26-12, PgID#
3303. The doctor consoled himself by saying that “she was in God’s hands” now. R.26-12,
PgID#3301.
A few days later, Hodge and his accomplices reached Daytona Beach. There, they went
on a spending spree with Dr. Acker’s money, as they had done along the way, buying expensive
vehicles and luxury goods. While bragging about his crimes, Hodge later told his cellmate that
he had stacked some of the stolen cash very high on a bed to have sex with a woman on top of it.

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Eventually FBI agents, with the help of a SWAT team, arrested the three fugitives. Law
enforcement discovered Hodge in a van that had been purchased with robbery proceeds. One of
Dr. Acker’s stolen guns rested on the van’s middle console. On the rear seat lay a gold
wristwatch, a receipt for a 14-carat gold chain, a .22 magnum four-shot revolver, a .243-caliber
rifle, and a designer tote bag. Inside the bag, police found a .38 special caliber derringer,
Remington .45 auto-caliber ammunition and cartridges, a police call radio guide, and a police
channel scanner.
At the time of his arrest, Hodge carried $2,350 in cash along with a butterfly knife in his
pockets. He worried about losing his stolen money. Hodge asked the arresting officer,
“my wallet is in the van, can I get it?” R.27-2, PgID# 3780. The officer responded no and that
he was “seizing it as evidence” after seeing it was “loaded with money.” R.27-2, PgID# 3780;
R.27-3, PgID#3852. There was $12,437 in cash inside.
B. State Trial Proceedings
Following their extradition from Florida, Hodge and his accomplices faced prosecution in
Letcher County, Kentucky. See Hodge v. Commonwealth, 68 S.W.3d 338, 341 (Ky. 2001).
A grand jury indicted Hodge and Epperson on four charges: (1) murder of Tammy Acker,
(2) attempted murder of Dr. Acker, (3) first-degree robbery, and (4) first-degree burglary.
Hodge, 2016 WL 4425094, at *2. They were tried together in Letcher County Circuit Court in
1986. Bartley agreed to cooperate with the prosecution and gave a detailed statement identifying
Hodge and Epperson as the crimes’ principal perpetrators. Other testifying witnesses included
Dr. Acker, the arresting police officers, and one of Hodge’s cellmates.
The jury convicted Hodge and Epperson of all charges. See id. at *3. The jury
recommended that each man receive 60 years’ imprisonment for the non-capital charges and a
death sentence for Tammy’s murder. The trial court imposed those recommended sentences. Id.
C. Sentencing Mitigation Facts
Hodge’s trial counsel made limited mention of evidence in his favor during his
sentencing. Hodge’s mitigation case at the penalty phase consisted of just a two-sentence

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stipulation: he had “a loving and supportive family—a wife and three children,” and “a public
job work record.” Hodge, 2011 WL 3805960, at *2.
Hodge points to mitigating evidence not presented by his trial counsel that showed a
“childhood marred by the ‘most severe and unimaginable level of physical and mental abuse.’”
Hodge v. Jordan, 12 F.4th 640, 643 (6th Cir. 2021) (quoting Hodge, 2011 WL 3805960, at *5).
Hodge’s mother, Kate, was married to six men over the years. All were substance abusers, and
some were physically abusive. One named Billy Joe was the worst offender and considered a
“monster.” Hodge, 2011 WL 3805960, at *3. His rage was “explosive and violent,” mainly
triggered by Kate showing affection toward her children. Id. Billy Joe regularly raped Hodge’s
mother, beat her, and threatened her with a gun. He assaulted her so violently that she suffered a
miscarriage. Id. Hodge and his sisters often thought their mother had been beaten to death. As
the only male child, Hodge tried to defend his mother. But Billy Joe regularly beat Hodge with a
metal buckled belt. And he kicked and threw Hodge against walls. Billy Joe even rubbed
Hodge’s face in his own feces and made Hodge watch him kill Hodge’s dog. Id.
Young Hodge turned to a life of crime. He began stealing at 12. At 15, a court sentenced
him to a juvenile detention facility, where he suffered regular beatings. See id. at *4. He ran
away from the facility twice. When he was released at 16, he assaulted his stepfather and was
sent to a juvenile facility for two more years. By age 20, Hodge had pleaded guilty to his first
felonies: burglary and grand larceny. Then he was convicted of a separate armed robbery. As an
adult, Hodge continued attempting to escape from incarceration. By the time he committed the
murder in this case, Hodge was 34, had been married three times, and had fathered three
children. Id.
D. Procedural History
Over the decades, Hodge’s execution has been delayed through multiple proceedings
challenging many aspects of his trial and sentencing. In fact, Benny Hodge has outlived his
murder victim, Tammy Acker, by almost 40 years. And he has outlived Dr. Acker, who died in
2001, by nearly a quarter century.

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The appeals began in 1986, after the entry of the judgments of conviction and death
sentences for Hodge and Epperson. Both defendants appealed. See Epperson v. Commonwealth,
809 S.W.2d 835 (Ky. 1990). In 1990, the Kentucky Supreme Court examined the issues that the
defendants raised, 62 for Hodge and 69 for Epperson. See id. at 837. Neither Hodge nor
Epperson prevailed on any of their claims. As a result, the Kentucky Supreme Court affirmed
the convictions and death sentences. Id. at 845.
Hodge and Epperson then sought postconviction relief by filing motions under Rule
11.42 of the Kentucky Rules of Criminal Procedure. The trial court denied the motions without a
hearing. The two prisoners appealed that denial. Hodge, 68 S.W.3d at 391. The Kentucky
Supreme Court held that the trial court should have conducted evidentiary hearings, so it
remanded the case for such proceedings. Id. at 346. The trial court then held the requisite
hearings, after which that court again denied the motions for Rule 11.42 relief. Hodge, 2011 WL
3805960, at *1.
In 2011, the Kentucky Supreme Court affirmed the trial court’s decision denying relief
and issued the opinion that is the subject of this appeal. Id. at *5. AEDPA directs us to review
this opinion, as it is the final reasoned decision of the state court with respect to the claims here.
28 U.S.C. §§ 2253, 2254(a); see Shinn v. Kayer, 592 U.S. 111, 120 n.1 (2020) (per curiam)
(“Kayer”). We address the opinion only as it pertains to Hodge. Epperson is not before us.1
Kentucky’s highest court held that there was no credible evidence supporting Hodge’s
claims of jury tampering or misconduct. Hodge, 2011 WL 3805960, at *2. As for the
ineffective-assistance-of-counsel claim, the court held that although Hodge’s trial lawyer
deficiently performed at sentencing, there was no prejudicial effect to warrant granting relief
under Strickland. Id. at *3–5; see Strickland, 466 U.S. at 700. The court “considered the totality
of evidence before Hodge’s sentencing jury, including the proposed mitigation evidence,” and
concluded “that there exists no reasonable probability that the jury would not have sentenced
Hodge to death” considering the “heinous nature” of his crimes, and the fact that the “mitigation
1Following Epperson’s state postconviction appeal, the Commonwealth of Kentucky agreed to the
reduction of Epperson’s death sentence for Tammy Dee Acker’s murder to life imprisonment. Epperson remains on
death row for his murder conviction in another case. See Epperson v. Kentucky, 197 S.W.3d 46 (Ky. 2006).

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evidence” included “damaging evidence” about his criminal history. Hodge, 2011 WL 3805960,
at *4–5. The court noted that “[m]any, if not most, malefactors committing terribly violent and
cruel murders are the subjects of terrible childhoods.” Id. at *5.
Hodge then petitioned for a writ of certiorari to the Supreme Court of the United States.
The Court denied the petition. Hodge v. Kentucky, 568 U.S. 1056 (2012). In a solo dissent,
Justice Sotomayor took issue with the Kentucky Supreme Court’s discussion of Hodge’s
mitigating evidence as “providing some explanation” behind his criminality, but offering
“virtually no rationale for the premeditated, cold-blooded murder.” Id. at 1059 (Sotomayor, J.,
dissenting from denial of certiorari). Justice Sotomayor argued the Kentucky court had violated
Strickland by invoking an improper “‘nexus’ requirement.” Id. at 1061. But AEDPA deference
did not apply when Justice Sotomayor penned her dissent. That is because Hodge filed the
petition for certiorari on collateral review initiated in state court, and § 2254 deference arises
only during collateral review in a federal habeas petition. See id. at 1058–59; Hodge, 2016 WL
4425094, at *10.
Having exhausted the state court system, Hodge then filed his federal habeas petition
pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of
Kentucky. Hodge, 2016 WL 4425094, at *1. Hodge raised 29 claims and moved for summary
judgment. In a detailed and thorough opinion, Judge Bunning denied Hodge’s motion for
summary judgment and his habeas petition. Id. at *67. The district court recognized that
AEDPA “modified a federal habeas court’s role in reviewing state prisoner applications in order
to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to
the extent possible under law.” Id. at *13 (citation omitted).
As relevant to this appeal, the district court denied Hodge’s sixth claim alleging
ineffective counsel for failure to raise mitigating evidence during the penalty phase. The court
concluded that “the record simply does not support [Hodge’s] assertions” that “the Kentucky
Supreme Court improperly applied Strickland’s prejudice prong,” considering that the Kentucky
court “was careful to acknowledge the severity of the abuse Hodge suffered.” Id. at *29.
Instead, according to Judge Bunning, the state court weighed that information against Hodge’s
crime being “a brutal and premeditated act on innocent victims” void of remorse. Id. Because

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Hodge could not demonstrate that the Kentucky Supreme Court was unreasonable in its
application of Strickland’s prejudice prong, the district court held that § 2254(d)(1) barred relief
for this claim. Id. at *29–30. Applying AEDPA deference, the district court concluded that the
Kentucky Supreme Court’s ruling on the ineffective-assistance claim was “not ‘so lacking in
justification that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.’” Id. at *29 (citation omitted).
Also relevant here, the district court denied Hodge’s fifth claim, which alleged jury
tampering. Hodge claimed the sequestered jurors were improperly provided newspapers,
television, and vodka, and even spoke to the trial prosecutor. Id. at *23. Hodge relied on
testimony from the bailiff, Gary Rogers. The district court reviewed the state court’s
postconviction record and its finding that Rogers’s testimony was unreliable to the point
of Hodge’s setting “forth nothing more than ‘bald allegations’ of jury tampering.” Id. at
*25 (citation omitted). Because the Kentucky court’s “factual determinations were not
unreasonable in light of the evidence presented,” the district court held that AEDPA barred
further review. Id.
A panel of this court affirmed the district court’s denial of habeas relief. See Hodge,
12 F.4th at 646. Then a different panel granted Hodge’s petition for rehearing. The second
panel vacated the first panel’s decision, issuing a new opinion and order that reversed the district
court and granted the writ on Hodge’s ineffective-assistance claim. See Hodge v. Jordan,
95 F.4th 393, 403 (6th Cir. 2024). Judge Siler, who wrote for the majority in the first panel
decision, dissented from the second panel decision. He emphasized in the first panel decision
that, when dealing with a Strickland claim, a federal court “must give double deference to the
state court’s determination” under AEDPA. Hodge, 12 F.4th at 643 His opinion for the court
held that “the Kentucky Supreme Court’s ruling was not contrary to Supreme Court precedent,
and ‘was not so obviously wrong as to be beyond any possibility for fairminded disagreement.’”
Id. at 645 (citation omitted).
Now in dissent in the second panel decision, Judge Siler highlighted Hodge’s other death
penalty case, Hodge v. Haeberlin, 579 F.3d 627 (6th Cir. 2009). See Hodge, 95 F.4th at 403–04
(Siler, J., dissenting). In Hodge v. Haeberlin, a jury convicted Hodge for the robbery and

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murders of Edwin and Bessie Morris, an elderly couple. 579 F.3d at 634. Police found those
victims’ bodies, gagged and bound, on the kitchen and bedroom floors of their home. See Hodge
v. Commonwealth, 17 S.W.3d 824, 833–34 (Ky. 2000). During the sentencing phase of the
Hodge v. Haeberlin trial, defense counsel presented 13 mitigation witnesses who testified to
Hodge’s childhood abuse. See Hodge, 95 F.4th at 403–04 (Siler, J., dissenting). In response to
that testimony, the prosecution presented Hodge’s previous criminal convictions, including his
“conviction and death sentence for capital murder, robbery in the first degree, burglary in the
first degree,” and “also armed robbery, escape, and felonious assault in Tennessee.” Id. at 404.
The jury returned a verdict of death. Id. Judge Siler noted that even if defense counsel had
presented all of Hodge’s mitigation evidence in Hodge’s trial for Tammy Dee Acker’s murder,
the result would have had the same outcome as in Hodge v. Haeberlin: the jury would not have
spared Hodge from the death penalty. See id.
Following the second panel’s decision and Judge Siler’s dissent, the warden petitioned
for rehearing en banc. We granted the petition, thereby vacating the second panel’s decision.
II. DISCUSSION
We review Hodge’s habeas petition with a large degree of deference to the Kentucky
Supreme Court’s postconviction decision. AEDPA requires this deference to respect the finality
of judgments and the competence of state courts in our federal system. In our analysis below, we
first address the AEDPA standard, then we apply it to our review of Hodge’s claims of
ineffective assistance of counsel, jury tampering, and jury bias.
A. The AEDPA Standard
AEDPA authorizes a federal court to grant a writ of habeas corpus for state prisoners
only to guard against “extreme malfunctions in the state criminal justice systems.” Shinn
v. Ramirez, 596 U.S. 366, 377 (2022) (“Ramirez”). Congress recognized that “[f]ederal habeas
review of state convictions frustrates both the States’ sovereign power to punish offenders and
their good-faith attempts to honor constitutional rights.” Harrington v. Richter, 562 U.S. 86,
103 (2011) (citation omitted).

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Since the dawn of our nation, states have had primary responsibility over criminal law
enforcement. See Ramirez, 596 U.S. at 376. “The power to convict and punish criminals lies at
the very heart of the states’ ‘residuary and inviolable sovereignty.’” Id. (quoting The Federalist
No. 39, at 245 (James Madison) (Clinton Rossiter ed., 1961)). It is an authority that the national
government is expected to respect. When federal courts override state court convictions, they
“unsettle these expectations” and “inflict a profound injury to the powerful and legitimate
interest in punishing the guilty.” Id. at 376–77 (citation omitted).
Federal intervention also “disturbs” the notion of “concluded litigation” and “undermines
the States’ investment in their criminal trials.” Id. at 377 (citation omitted). State trials are not
meant to be mere “tryout[s] on the road” to federal habeas relief. Id. (citation omitted). That
would “detract from the perception” that state court criminal trials are “decisive and portentous”
events. Id. (citation omitted). The public suffers—particularly surviving victims and loved
ones—when we allow previously convicted perpetrators of violent and deadly crimes to relitigate
their convictions or sentences, or both, many years after the trial (in this case decades),
after evidence has gone stale or been lost, and percipient witnesses (like Dr. Acker) have died.
See Edwards v. Vannoy, 593 U.S. 255, 263 (2021).
AEDPA helps address these concerns. Congress designed 28 U.S.C. § 2254(d) to remind
federal courts that “state courts are the principal forum for asserting constitutional challenges to
state convictions.” Richter, 562 U.S. at 103. Given the powerful state interests at play, federal
habeas review is an “extraordinary remedy” that grants federal courts only a “narrow role.”
Ramirez, 596 U.S. at 377 (citation omitted). And even if Hodge prevailed under AEDPA, we
cannot grant relief unless “law and justice require” relief. Brown v. Davenport, 596 U.S. 118,
134 (2022); 28 U.S.C. § 2243.
Despite this statutory context, Hodge argues his claims clear AEDPA’s high hurdles and
warrant habeas relief. Under AEDPA, a federal court denies habeas to any “person in custody
pursuant to the judgment of a State court” for “any claim that was adjudicated on the merits in
State court proceedings,” 28 U.S.C. § 2254(d), unless the claim’s state adjudication falls into one
of two exceptions, § 2254(d)(1) or (2). The federal court reviews the adjudication from “the
final and highest state court to decide the [claims’] merits.” Wilson v. Sellers, 584 U.S. 122,

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127 (2018). In Hodge’s case, that is the Kentucky Supreme Court’s 2011 decision. Hodge, 2011
WL 3805960, at *1.
Hodge argues his ineffective-assistance-of-counsel claim satisfies § 2254(d)(1). That
subsection allows habeas relief when the claim’s state court adjudication “resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.” § 2254(d)(1). As for his jury-
tampering claim, Hodge argues that it satisfies § 2254(d)(2), which allows relief when the state
court decision “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” § 2254(d)(2). He also maintains entitlement to relief
on his jury bias claim because the state court did not evaluate the claim on the merits.
B. Ineffective-Assistance-of-Counsel Claim
For his ineffective-assistance claim, Hodge argues that Kentucky’s highest court
misinterpreted and misapplied Strickland v. Washington, which functions as the operative
“clearly established Federal law” in this area. Richter, 562 U.S. at 101; 466 U.S. at 687. We
address Strickland’s prejudice requirement as well as AEDPA deference in this context below.
Then we apply that governing law to review the Kentucky Supreme Court’s decision.
1. Strickland’s Prejudice Requirement
Defendants can win an ineffective-assistance-of-counsel claim by showing their counsel
(1) provided “deficient” performance that (2) “prejudiced the defense.” Strickland, 466 U.S. at
687. Here, the deficient performance of Hodge’s counsel is not contested, so we focus on
whether Hodge satisfied the prejudice prong. In the capital sentencing context, the prejudice
inquiry requires courts to ask whether there is a “reasonable probability” that, absent the
attorney’s errors, the sentencer “would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.” Id. at 695. “Sentencer” includes an “appellate
court, to the extent it independently reweighs the evidence.” Id. And by “reasonable
probability,” the Court means “a probability sufficient to undermine confidence in the outcome,”
which requires a “substantial, not just conceivable, likelihood of a different result.” Cullen
v. Pinholster, 563 U.S. 170, 189 (2011) (citation omitted). To determine whether a prisoner

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satisfies this standard, “a court must consider the totality of the evidence before the judge or
jury” by evaluating “the strength of all the evidence” and comparing “the weight of aggravating
and mitigating factors.” Thornell v. Jones, 602 U.S. 154, 164, 171–72 (2024).
Consider Strickland itself. There, the Florida Supreme Court affirmed that counsel did
not prejudice the defendant, Washington, by failing to develop and present mitigating evidence
about his character and emotional state. See Strickland, 466 U.S. at 673, 677–78. At sentencing,
Washington’s counsel relied only on a plea colloquy for evidence of the defendant’s background
and emotional distress, thus preventing the State from cross-examining Washington and
presenting its own psychiatric evidence. Id. at 673.
The Florida Supreme Court affirmed the trial court’s conclusion that “no substantial
prejudice resulted” from the absent mitigating evidence because “there is not even the remotest
chance that the outcome would have been any different,” considering the “plain fact” that
“the aggravating circumstances proved” in Washington’s case were “completely overwhelming.”
Id. at 677–78. The district court upheld that state court determination on habeas review. Id. at
678–79. But the then-Fifth Circuit reversed, applying a since-overturned prejudice test, which
required the defendant to show only that counsel’s errors “resulted in actual and substantial
disadvantage to the course of his defense.” Id. at 682.
The U.S. Supreme Court reversed the Fifth Circuit and, in so doing, established the
two-part Strickland test. That test requires defendants bringing ineffective-assistance claims to
show their counsel (1) provided “deficient” performance that (2) “prejudiced the[ir] defense.”
Id. at 687. The Supreme Court held that counsel neither provided deficient representation nor
prejudiced the defense. Id. at 699–700. The Court emphasized that the purpose of the effective
assistance constitutional requirement is “to ensure a fair trial.” Id. at 686. And particularly
relevant here, the Court rooted the standard for judging prejudice in materiality—like materiality
tests for undisclosed exculpatory information or unavailable testimony at trial. See id. at 694.
That test requires more than simply showing that the counsel’s errors “had some conceivable
effect on the outcome of the proceeding.” Id. at 693.

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The Supreme Court assessed the mitigating evidence that Washington wished his counsel
had offered at his sentencing. The Court explained that Washington’s evidence showed, “at
most,” that people who knew Washington “thought he was generally a good person” and that a
psychiatrist and a psychologist “believed he was under considerable emotional stress that did not
rise to the level of extreme emotional disturbance.” Id. at 700. The Court decided that the
evidence accordingly “would barely have altered the sentencing profile presented to the
sentencing judge,” so there was “no reasonable probability that the omitted evidence would have
changed the conclusion that the aggravating circumstances outweighed the mitigating
circumstances.” Id. at 700. In other words, the mitigating evidence was not strong enough to
affect the sentencing decision. Indeed, that evidence might even have been “harmful to his case:
his ‘rap sheet’ would probably have been admitted into evidence,” which would have
contradicted Washington’s prior statements to the trial judge that he had no significant criminal
history, id. at 673, and Washington’s proposed “psychological reports would have directly
contradicted [his] claim that the mitigating circumstance of extreme emotional disturbance
applied to his case.” Id. at 700.
To show prejudice in his ineffective-assistance claim, Strickland thus establishes that
Hodge must do more than point to unpresented mitigating evidence. The missing proof must
have been significant enough to show a reasonable probability that at least one juror, had he or
she known of that evidence, would not have imposed the death penalty. See id. at 694.
2. AEDPA Deference Applying Strickland
We now review the Kentucky Supreme Court’s interpretation and application of
Strickland’s prejudice prong. But we do not review that decision de novo. Rather, our task
under AEDPA is to decide whether the Kentucky Supreme Court’s decision—concluding that
unpresented evidence of Hodge’s childhood was not material under the Strickland test—“was
contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); see, e.g.,
Kayer, 592 U.S. at 124; Richter, 562 U.S. at 113. The Supreme Court has said that the “contrary
to” and “unreasonable application” clauses must be given “independent meaning.” Williams
v. Taylor, 529 U.S. 362, 364 (2000). The “contrary to” clause is relevant when a state court

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applies a rule that “contradicts the governing law.” Id. at 405. The “unreasonable application”
clause, meanwhile, governs scenarios where the state court identified the correct legal rule but
applied that rule unreasonably. Miles v. Jordan, 988 F.3d 916, 924 (6th Cir. 2021). That
distinction informs our analysis in Hodge’s case.
For an adjudicated state court decision to “unreasonabl[y] appl[y],” § 2254(d)(1), clearly
established federal law (here, Strickland), the state court’s determination must be “so obviously
wrong that its error lies ‘beyond any possibility for fairminded disagreement,’” Kayer, 592 U.S.
at 124 (citation omitted). That is a high bar and “the only question that matters.” Richter,
562 U.S. at 102. A prisoner must show “far more than that the state court’s decision was ‘merely
wrong’ or ‘even clear error.’” Kayer, 592 U.S. at 118 (quoting Virginia v. LeBlanc, 582 U.S. 91,
94 (2017) (per curiam)). It must be so “lacking in justification” to be “objectively
unreasonable.” LeBlanc, 582 U.S. at 94. Otherwise, AEDPA proscribes that “federal courts
must follow” the state court’s decision. Brown, 596 U.S. at 127.
Under § 2254(d), therefore, we give the state court “the benefit of the doubt.” Woodford
v. Visciotti, 537 U.S 19, 24 (2002) (per curiam); see Richter, 562 U.S. at 102. We do not
conduct a de novo review and substitute our “own judgment for that of the state court” to find a
Strickland violation. Kayer, 592 U.S. at 121 (citation omitted). AEDPA demands we ask only
“whether it is possible fairminded jurists could disagree that those arguments or theories are
inconsistent with a prior” Supreme Court holding. Richter, 562 U.S. at 102. Because
Strickland’s general standard has a substantial range of reasonable applications, “a state court has
even more latitude” under AEDPA “to reasonably determine that a defendant has not satisfied
that standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). This means that habeas
petitioners wishing to show unreasonable application under § 2254(d)(1) face a difficult task in
federal court: proving “there was no reasonable basis for the state court to deny relief.” Richter,
562 U.S. at 98.
Meanwhile, a state court decision is “contrary to,” § 2254(d)(1), clearly established
federal law “if the state court applies a rule that contradicts the governing law set forth” in the
Supreme Court’s cases, Williams, 529 U.S. at 405. We have explained that a state court decision
is contrary to clearly established law only if it “(1) applies a rule that directly conflicts with a

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rule prescribed by the Supreme Court or (2) confronts a case with materially identical facts to
a Supreme Court decision and decides the case differently.” Rogers v. Mays, 69 F.4th 381,
389 (6th Cir. 2023) (en banc). In assessing whether a state court decision was contrary to federal
law, a federal habeas court must be careful not to “mischaracteriz[e]” a state-court opinion that
“expressed and applied the proper standard for evaluating prejudice.” Visciotti, 537 U.S. at 22.
Nor may federal courts use § 2254(d)(1) to “flyspeck state-court opinions” and “impose
mandatory opinion-writing standards on state courts.” Rogers, 69 F.4th at 391–92. Instead, we
must analyze the “decision as a whole—not a few words or a stray thought.” Id. at 392 (citation
omitted).
Shinn v. Kayer provides one example of how federal courts apply AEDPA to review
whether a state court’s Strickland prejudice decision was an unreasonable application of federal
law. 592 U.S. at 112. In that case, the defendant (Kayer), his girlfriend, and a travel-companion-
turned-murder-victim (Haas) journeyed back from a gambling trip in Nevada. Id. at 113. Kayer
had borrowed money from Haas but lost it gambling. So the defendant hatched a plan to get
out of his debt: he told his girlfriend that he would “just have to kill” Haas on the car ride back.
Id. Kayer pulled over to a secluded area, grabbed a gun when Haas exited the car to urinate,
snuck up on him, and shot him pointblank in the head. See id. He stole Haas’s wallet, watch,
and jewelry, and drove away. Realizing he did not grab Haas’s house keys, Kayer turned
around, shot Haas in the head again, and drove to Haas’s home. See id. There, he stole firearms
and other valuables that he and his girlfriend later sold under various aliases. See id.
At sentencing, Kayer’s attorneys failed to present evidence of Kayer’s mental illness,
alcohol and gambling addictions, and troubled childhood. All they said was that Kayer was
important in his son’s life. See id. at 114. When Kayer moved for postconviction relief in the
Arizona Superior Court, that court denied the motion, holding in a conclusory manner that “no
prejudice to the defendant can be found.” Id. at 115. The Arizona Supreme Court affirmed.
Kayer then unsuccessfully filed a habeas petition in federal district court. That court decided that
he could not show prejudice because the mitigation evidence “fell short of the type of mitigation
information that would have influenced the sentencing decision.” Id. at 116. But the Ninth
Circuit reversed, concluding there was “a reasonable probability that the Arizona Supreme Court

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would have vacated Kayer’s death sentence on direct review had it been presented with the
mitigating evidence offered at the state postconviction relief hearing.” Id.
The U.S. Supreme Court decided that the Ninth Circuit erred in second-guessing the
Arizona Supreme Court and imposing rigid writing requirements on that court. To start, the
Court explained that the state court employed “the correct governing legal principle” of
Strickland to Kayer’s case, so the state court’s decision was not contrary to federal law. Id. at
118 (citation omitted). The Supreme Court accordingly focused on whether the state decision
involved an unreasonable application of Supreme Court precedent. See id.
So, the Court considered and weighed the evidence. On one hand, Kayer’s bipolar
disorder and untreated addictions could impair his ability to appreciate his conduct’s
wrongfulness and prevent him from conforming his conduct to the law. See id. at 122. But on
the other hand, Kayer had many opportunities to reconsider his actions. He planned the murder
in advance, drove his victim to a remote area, and later returned to the murder scene to shoot the
victim in the head yet again and hide his body. Id. Not to mention, Kayer intended to and did
profit from the crime. Ultimately, the Court concluded that the unpresented mitigation evidence
“did not create a substantial likelihood of a different sentencing outcome.” Id. at 121. It was not
strong enough proof to be material under the doubled deference of Strickland and AEDPA.
Applying AEDPA, the Court noted that the Arizona state court decision was not beyond any
possibility for fairminded jurists to disagree. Id. at 124. Because that is “the only question that
matters,” the Court affirmed the district court’s denial of habeas relief and vacated the Ninth
Circuit’s contrary ruling. Id. (quoting Richter, 562 U.S. at 102).
3. Application of Strickland, Kayer, and AEDPA to Hodge’s Claim
Both Strickland and Kayer offer parallels to Hodge’s case. In denying habeas relief to
Hodge, the Kentucky Supreme Court articulated the correct legal standard and reasonably
applied Strickland. And the state court opinion provided adequate reasoning. Hodge has not
advanced any argument to the contrary and cannot overcome AEDPA deference to the Kentucky
Supreme Court’s ruling on the prejudice requirement.

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The Kentucky Supreme Court correctly identified and applied Strickland’s prejudice
prong. See Hodge, 2011 WL 3805960, at *3. As required by that standard, the Kentucky court
analyzed whether Hodge showed there was a reasonable probability that “the result of the
penalty phase would have been any different had this mitigation evidence been presented to the
sentencing jury.” Id. at *4. This quasi-materiality test is just what Strickland prescribes for the
prejudice inquiry.
The Kentucky Supreme Court examined all of Hodge’s proposed mitigating evidence.
See id. at *2–5. It recognized that the “trial court’s characterization of Hodge’s childhood as
‘difficult’” was “certainly inadequate” given the “extreme violence [Hodge] suffered at the hands
of his stepfather.” Id. at *3. And it noted the trial court’s “description of Billy Joe as
‘particularly abusive’” to be “insufficient.” Id. Kentucky’s highest court analyzed the mitigating
evidence and testimony from Hodge’s mother, sisters, and two psychologists. Id. at *3–4. But it
recognized that Hodge’s supposed extenuating proof “also included the damaging evidence of
his long and increasingly violent criminal history, his numerous escapes from custody, and the
obvious failure of several rehabilitative efforts.” Id. at *4. That reflects the careful examination
of the defendant’s proposed mitigating evidence that Strickland requires. See 466 U.S. at 700.
Then the Kentucky Supreme Court weighed the mitigating evidence against the
aggravating “heinous nature of Hodge’s crime.” Hodge, 2011 WL 3805960, at *4. Hodge’s
conviction rested largely on direct evidence. A victim (Dr. Acker), an accomplice (Bartley),
arresting officers, and a cellmate all testified to the facts against Hodge in damning fashion.
Hodge assaulted an elderly widowed doctor and murdered that doctor’s daughter. His crimes
“were not just brutal and vicious, but calculated and exceedingly cold-hearted.” Id. Hodge and
his accomplices “carefully planned the robbery after learning of the large quantity of cash kept in
the home safe.” Id. They traveled to commit their crimes, carrying supplies and firearms with
them. Id. They impersonated federal agents to access the home. Id. And they waited hours
after their first attempt to access the home failed. In their second attempt, Hodge held Dr. Acker
at gunpoint, ordered him and his daughter Tammy bound and gagged, and stole nearly $2 million
and other valuables from their home. Hodge then played a key role in eliminating the witnesses
to his illegal acts. He stabbed Tammy, a defenseless young woman, at least 10 times so

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viciously that the knife went through her body to the floor. This was no fit of unpremeditated
rage. And no one could mistake from the evidence that Hodge himself committed the charged
offenses, including Tammy’s murder. The proof also revealed that Hodge had no regrets: he
enjoyed the fruits of his crimes.
The appellate reviewing court thus independently reweighed all the evidence, including
the mitigating evidence that Hodge wished that his trial counsel provided initially. See
Strickland, 466 U.S. at 695. “Balancing all of the available evidence in mitigation and
aggravation,” as it must under Strickland, the Kentucky Supreme Court concluded that there
“exists no reasonable probability that the jury would not have sentenced Hodge to death.”
Hodge, 2011 WL 3805960, at *5; 466 U.S. at 695. Simply put, the court determined the
unpresented mitigating evidence was not enough to overcome the aggravating facts of Hodge’s
odious conduct.
Like the defendant in Kayer, Hodge committed a brazen act of violence. Like Kayer,
Hodge showed premeditation and was motivated by pecuniary gain. Like Kayer, Hodge had
plenty of opportunities to reconsider his actions. And, as in Kayer’s case, the repulsive
circumstances of the murder and its aftermath could have been reasonably viewed by the state
court to create no reasonable probability that Hodge’s jury would have rejected the death
penalty—no matter the mitigating evidence he could have presented.
The dissent seeks to distinguish Kayer by noting that Kayer “did not experience
severe child abuse like Hodge did.” Dissent at 45. And it argues that Wiggins v. Smith, 539 U.S.
510 (2003), and Rompilla v. Beard, 545 U.S. 374, 392 (2005) “suggest that the Supreme Court
views severe abuse as distinct from other types of childhood difficulties in its ability to mitigate a
defendant’s crimes.” Dissent at 46. Whether true or not, that does not change the analysis that
we apply under AEDPA now. Regardless of the significance of Hodge’s childhood abuse,
controlling Supreme Court precedent does not render it unreasonable for the Kentucky Supreme
Court to find no prejudice here, given its view that the aggravating factors overwhelmingly
pointed to imposing the death penalty.

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Even if some of us on this court would have reached a different conclusion in the first
instance on the issue of prejudice, the Kentucky Supreme Court acted within the bounds of
reasonableness under AEDPA deference. The court weighed Hodge’s missing mitigating
evidence against aggravating evidence of Hodge’s “particularly depraved and brutal” crimes
to conclude that the sentencing jury would not have spared Hodge the death penalty. Hodge,
2011 WL 3805960, at *5. Under AEDPA, that conclusion was not so objectively wrong under
U.S. Supreme Court precedent to be beyond any possibility for fairminded jurists to disagree.
4. Analysis of Hodge’s Arguments
The caselaw Hodge and the dissent rely upon does not dissuade us. Unlike those cases,
the aggravating factors here can reasonably be viewed as dispositive for his death sentence.
Hodge had a violent criminal history and premeditatively planned a brutal murder for pecuniary
gain. And he showed no remorse: he enjoyed the stolen money and boasted about his crimes
after the fact. This case is therefore not like Porter v. McCollum, where the Supreme Court
found weak aggravating factors from a “crime of passion” deemed not to be “especially
heinous.” 558 U.S. 30, 42 (2009) (per curiam). Nor is it like Wiggins. There, the Court decided
that counsel’s performance had prejudiced a defendant who had no aggravating factors or history
of violence. 539 U.S. at 525, 537.
The mitigation evidence in the cited cases differs in kind and scope from Hodge’s too.
Williams v. Taylor involved a defendant who turned himself in, cooperated with police,
expressed remorse, and had a mental disability. 529 U.S. at 398. In Rompilla, the jury never
heard of the defendant’s learning disability which barred him from appreciating his conduct’s
criminality. 545 U.S. at 392. As for Porter, the unintroduced mitigation evidence went far
beyond childhood abuse to include Porter’s “heroic” military record in the Korean War (during
which he was wounded multiple times), trauma he suffered from his military service, long-term
substance abuse issues, and his “impaired mental health and mental capacity.” 558 U.S. at 33.
The opinion’s opening line reveals how relevant the Court considered that war record to Porter’s
sentence. Id. at 30 (“George Porter is a veteran who was both wounded and decorated for his
active participation in two major engagements during the Korean War; his combat service
unfortunately left him a traumatized, changed man.”).

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The quality and extent of the unpresented mitigating evidence, when weighed against the
aggravating circumstances, resulted in a stronger showing of prejudice in these cases than there
was here. Their inapposite circumstances thus “offer no guidance with respect to whether a state
court has unreasonably determined that prejudice is lacking,” Pinholster, 563 U.S. at 202, with
respect to Hodge’s sentencing.
Lacking any case directly on point to support his argument, Hodge advances another
argument: that the Kentucky Supreme Court applied an improper “nexus requirement” test in
Strickland’s stead. That contention rests on a mischaracterization of the state court opinion,
which Visciotti forbids. See 537 U.S. at 22. In Visciotti, the U.S. Supreme Court chided the
Ninth Circuit for mischaracterizing how the California Supreme Court conducted its Strickland
analysis. See id. at 24. Despite the California court’s efforts to “painstakingly describe[] the
Strickland standard,” it made an “occasional shorthand reference to that standard by use of the
term ‘probable,’” not preceded by the modifier, “reasonably.” Id. at 23–24. The Ninth Circuit
seized on that “probable” language found only in one paragraph of the California opinion to
discount the state court’s more detailed Strickland analysis. See id. at 24. The Supreme Court
took issue with the Ninth Circuit’s making “no effort to reconcile the state court’s use of the term
‘probable,’ with its use, elsewhere of Strickland’s term[s]”—not to mention the Ninth Circuit’s
failure to “even acknowledge, much less discuss, the California Supreme Court’s proper framing
of the question as whether the evidence ‘undermines confidence’ in the outcome of the
sentencing proceeding.” Id. at 24.
Like the Ninth Circuit’s giving short shrift to the California Supreme Court in Visciotti,
Hodge’s argument discounts paragraphs of the Kentucky Supreme Court’s analysis, focusing
instead on a single sentence. The dissent does the same. But this characterization unfairly
discredits 12 paragraphs of the Kentucky court’s reasoning—like when that court “turn[ed] to the
primary inquiry before [it], i.e., whether” there was a reasonable probability that “the result of
the penalty phase would have been any different had [] mitigation evidence been presented to the
sentencing jury.” Hodge, 2011 WL 3805960, at *4. Hodge’s argument also ignores that the
state court detailed the childhood abuse Hodge faced, his tragic introduction to the criminal
justice system as an adolescent, and his PTSD that resulted from these hardships. Id. at *3–4.

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And it acknowledged that Hodge “was described by all as a loving father” and someone who
“did not inflict any abuse on his own children.” Id. But the court concluded that these
mitigating factors did not outweigh the aggravating factors, which included “damaging evidence
of his long and increasingly violent criminal history,” and the “carefully planned” nature of
Hodge’s crime of traveling “out of state to carry out” stealing millions, stabbing Tammy Acker
at least 10 times (“all the way through her to the floor”), and celebrating by purchasing lavish
items and “having sex with his girlfriend on top” of the stolen money. Id. at *4–5.
The Kentucky Supreme Court did not apply an improper nexus requirement. The
paragraph now under scrutiny simply puts a period on the Kentucky court’s earlier analysis.
When it concluded that Hodge’s childhood does not explain his calculated crime, the Kentucky
Supreme Court was assessing the strength of the proposed mitigating evidence. The court
reasoned that, considering the substantial aggravating factors present in his case, Hodge’s
mitigating evidence was not sufficiently persuasive because it lacked a direct causal connection
to his crime. It is not the case that if it can be shown “that trial counsel failed to produce any
mitigating evidence that can be characterized as ‘substantial,’ [Hodge] must be resentenced.”
Thornell, 602 U.S. at 165. Thornell is clear: “where the aggravating factors greatly outweigh the
mitigating evidence, there may be no ‘reasonable probability’ of a different result.” Id. Such an
“argument is squarely inconsistent with Strickland.” Id.
The Kentucky Supreme Court concluded that the aggravating factors greatly outweigh
the mitigating evidence here. It reasonably determined that Hodge’s mitigation evidence “offers
virtually no rationale for the premeditated, cold-blooded murder and attempted murder of two
innocent victims who were complete strangers to Hodge.” Hodge, 2011 WL 3805960, at *5. In
making this determination, the Kentucky Supreme Court necessarily assessed whether the
evidence of Hodge’s childhood was material enough to reasonably sway a juror to save Hodge.
It “never said it would ignore any evidence that wasn’t tied to the murders; it simply discounted
the weight of that evidence because it lacked a connection with the murders.” White v. Plappert,
--- F.4th ---, 2025 WL 815203, at *11 (6th Cir. Mar. 14, 2025). It thus adhered to “a correct
statement of ineffective-assistance law,” that “‘where the aggravating circumstances are
overwhelming, it is particularly difficult to show prejudice at sentencing due to the alleged

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failure to present mitigating evidence.’” Id. at *10 (citation omitted). The court was entitled to
decide that Hodge’s evidence failed to meet the Strickland prejudice prong on this basis. See
Thornell, 602 U.S. at 164–65 (explaining that a state court may “find mitigating evidence
unpersuasive” on the grounds that it lacks a causal connection to a defendant’s crime).
The fairest reading of the Kentucky opinion is that the court carefully examined
Hodge’s evidence and then—as required—assessed whether there was a reasonable probability
that a sentencing juror could “have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Hodge, 2011 WL 3805960, at *3 (citation omitted). As
that is a correct application of Strickland, we defer to the Kentucky Supreme Court’s
determination that Hodge suffered no prejudice.
C. Jury-Tampering Claim
Hodge argues that his jury-tampering claim satisfies 28 U.S.C. § 2254(d)(2). When a
state court has already decided the issue on the merits, this AEDPA subsection allows federal
courts to issue a habeas writ only where the state court decision was “based on an unreasonable
determination of the facts” presented in state court. § 2254(d)(2). In other words, state court
factual findings are presumed correct and federal courts may displace them only when
the findings are shown to be “objectively unreasonable by clear and convincing evidence.”
Miller-El v. Cockrell, 537 U.S. 322, 341 (2003).
Hodge fails to meet this high standard. The Kentucky Supreme Court decided that Gary
Rogers—Hodge’s star witness and the bailiff of his trial—gave unreliable testimony. At a
postconviction evidentiary hearing, Rogers testified to prosecutors allegedly speaking with jurors
who supposedly had improper access to television, newspapers, and alcohol. But there were
omissions and inconsistencies in Rogers’s testimony. When he was not pleading the Fifth
Amendment to almost every question, Rogers forgot whether the prosecutor had brought any
improper items to jurors, and contradicted his own testimony by saying that the jurors did not
have access to newspapers, televisions, or the prosecutor. Rogers even denied making a prior
signed statement and accused attorneys of forging his signature. He also hinted that he had
received a prior conviction that related to Hodge’s case. In fact, Rogers was a convicted felon,

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but his conviction had nothing to do with Hodge’s case. And Rogers’s corroborating witness
was a since-disbarred judge who was not at Hodge’s trial. So, the Kentucky Supreme Court
instead credited another witness—a juror who denied any misconduct.
The Kentucky Supreme Court found “no credible evidence presented to support a
conclusion that any jury tampering or misconduct occurred.” Hodge, 2011 WL 3805960, at *2.
Applying AEDPA, we see no clear and convincing evidence signifying that the state court made
any objectively unreasonable legal ruling under any precedent of the U.S. Supreme Court or any
objectively unreasonable finding of fact. So, we do not disturb the Kentucky Supreme Court’s
rejection of the jury-tampering claim.
D. Jury-Bias Claim
Finally, Hodge argues that we should consider his claim for jury bias because AEDPA
does not apply where the state court did not evaluate the claim on the merits. True, the state
court did not consider the claim. But that is because Hodge never raised the issue for
adjudication. The claim, therefore, is procedurally defaulted because Hodge failed to exhaust his
remedies in state court. See 28 U.S.C. § 2254(b)(1), (c). And because Hodge cannot show cause
or prejudice excusing his default, his claim must be rejected. Coleman v. Thompson, 501 U.S.
722, 750 (1991).
In the state court proceedings, Hodge argued that “counsel was ineffective during the
crucial jury selection process.” Dkt. 107 at 7075. He further asserted that his attorney had failed
to learn about the relationship between the jury foreman and the prosecutor. But now, he takes a
different approach. Hodge argues that his jury was biased in several novel ways, including
improper relationships with the victim, trial judge, law enforcement, and the prosecutor. But
because Hodge did not raise his jury bias claims in state court, Kentucky state procedural rules
now bar consideration of his claim. See Hodge, 12 F.4th at 645–46 (Siler, J.); Hodge, 95 F.4th at
403 (White, J.). And he demonstrates no cause or prejudice to absolve his default. Accordingly,
Hodge’s jury bias claim fails.

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III. CONCLUSION
We are not deciding the issues in this case on direct appeal. Instead, we review the
Kentucky Supreme Court’s decision through the lens of AEDPA and respect the boundaries of
our authority under the statute. That means stepping in only when a state court unreasonably
interprets or applies U.S. Supreme Court precedent, or unreasonably determines facts. The
Kentucky Supreme Court did neither of those things here. We therefore AFFIRM the district
court’s judgment denying the habeas petition.

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___________________
CONCURRENCE
___________________
NALBANDIAN, Circuit Judge, concurring. I join the majority opinion in full. I write
separately to expound on the key issue in the case––whether the Kentucky Supreme Court
committed a legal error when it evaluated what would have been Hodge’s mitigation evidence.
As originally explained by Justice Sotomayor, the state court’s supposed mistake was requiring
that the proposed mitigation evidence “explain[]” or provide some “rationale” for Hodge’s
crimes––this is the “nexus” argument. Hodge v. Kentucky, 133 S. Ct. 506, 509 (2012)
(Sotomayor, J., dissenting from denial of certiorari) (internal quotation marks omitted). And this
was the theory that the panel majority accepted in its opinion. The en banc majority rejects this
argument. I agree. There was nothing wrong with the Kentucky Supreme Court’s reasoning. I
write separately to emphasize that the state court did not err when it considered Hodge’s crime
alongside the mitigation evidence. This review was crucial to the court’s assessment of how a
reasonable jury could view Hodge’s overall moral culpability.
The alleged nexus requirement comes from this language in the Kentucky Supreme
Court’s opinion:
Perhaps this information may have offered insight for the jury, providing some
explanation for the career criminal he later became. If it had been admitted, the
PTSD diagnosis offered in mitigation might have explained Hodge’s substance
abuse, or perhaps even a crime committed in a fit of rage as a compulsive
reaction. But it offers virtually no rationale for the premeditated, cold-blooded
murder and attempted murder of two innocent victims who were complete
strangers to Hodge. Many, if not most, malefactors committing terribly violent
and cruel murders are the subjects of terrible childhoods. Even if the sentencing
jury had this mitigation evidence before it, we do not believe, in light of the
particularly depraved and brutal nature of these crimes, that it would have spared
Hodge the death penalty.
Id. at 508 (quoting Hodge v. Commonwealth, No. 2009-SC-000791-MR, 2011 WL 3805960, at
*5 (Ky. Aug. 25, 2011)) (emphasis added). Like Justice Sotomayor, Hodge reads this statement
as dismissing his mitigation evidence because it did not explain, excuse, or offer a rationale for

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the murder. He claims that this runs afoul of Supreme Court precedent because mitigation
evidence cannot be limited to any specific purpose––“any aspect of a defendant’s character or
record” may be offered as a mitigating factor. Id. at 509 (quoting Lockett v. Ohio, 438 U.S. 586,
604 (1978) (plurality opinion) (emphasis added)).
But Hodge mischaracterizes the state court’s holding. The Kentucky Supreme Court did
not improperly limit Hodge’s mitigation evidence to the extent that it rationalized his crime.
Instead, the court weighed the mitigating and aggravating factors together and considered the
reality that if evidence provides no rationale for the crime, it is less weighty. I write to highlight
that the Supreme Court’s opinion in Williams v. Taylor, 529 U.S. 362 (2000), made this exact
inquiry not only proper but necessary. Moreover, there is no indication that the Kentucky
Supreme Court otherwise limited its consideration of the possible impact of the proposed
mitigating evidence.
In Williams, the Supreme Court asked if counsel’s failure to discover and present
evidence of a capital defendant’s severe childhood abuse, mental retardation, and efforts to aid
law enforcement prejudiced the defendant under Strickland. Id. at 396–97. The Court held it
did. Id. at 396. To decide if a jury would have sentenced Williams to death if it had the
proposed mitigation evidence, the Court focused on his “moral culpability”––and that is
necessarily linked to the crime at issue. Id. at 398. The Court made that clear: “The
circumstances [of William’s] several confessions are consistent with the view that in each case
his violent behavior was a compulsive reaction rather than the product of cold-blooded
premeditation.” Id. (emphasis added). Only then did the Court conclude that the mitigating
evidence might have undermined Williams’ moral culpability, potentially causing a reasonable
jury to not recommend a death sentence. Id.
In assessing how a jury would view a defendant’s moral culpability, the Supreme Court
has openly explained that courts can consider how the underlying crime relates to mitigation
evidence. See, e.g., Eddings v. Oklahoma, 455 U.S. 104, 112 (1982) (“[J]ustice requires that
there be taken into account the circumstances of the offense together with the character and
propensities of the offender.” (cleaned up) (emphasis added)). One might read this as a nexus
requirement. But even if the Court hasn’t required a nexus, it has allowed courts to balance an

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offense against the offender’s character and personal history. It has long been true that
“defendants who commit criminal acts that are attributable to a disadvantaged background, or to
emotional and mental problems, may be less culpable than defendants who have no such
excuse.” Franklin v. Lynaugh, 487 U.S. 164, 184 (1988) (O’Connor, J., concurring) (quoting
California v. Brown, 479 U.S. 538 (1987) (O’Connor, J., concurring)) (summarizing the holdings
of Lockett, 438 U.S. 586, Eddings, 455 U.S. 104, and Hitchcock v. Dugger, 481 U.S.
393 (1987)). Most recently, the Court affirmed a lower court that “declined to give [mitigating
evidence of mental illness] much weight because [the defendant] did not ‘establish a causal
connection between his alleged mental illness and his conduct on the night of the murders.’”
Thornell v. Jones, 602 U.S. 154, 166 (2024) (quoting State v. Jones, 917 P.2d 200, 221 (Ariz.
1996)). The Court then found that other mitigation evidence suffered from the same flaw: “it
[was] not causally connected to the murders.” Id. at 169.
Ultimately, this is part of the Strickland prejudice inquiry’s requirement that courts
analyze “the strength of all the evidence and a comparison of the weight of aggravating and
mitigating factors.” Id. at 171–72. The circumstances of the crime are an aggravating factor to
be compared against the proposed mitigating factors. See Tuilaepa v. California, 512 U.S. 967,
976 (1994). Together, this evidence paints the full picture of the defendant’s moral culpability.
See Franklin, 487 U.S. at 184 (O’Connor, J., concurring).
That is exactly what the Kentucky Supreme Court did here. It “considered the totality of
evidence before Hodge’s sentencing jury, including the proposed mitigation evidence” and
“[b]alancing all of the available evidence in mitigation and aggravation” found “no reasonable
probability that the jury would not have sentenced Hodge to death.” Hodge, 2011 WL 3805960,
at *5. Because “[t]his analysis requires . . . a comparison of the weight of the aggravating and
mitigating factors,” Thornell, 602 U.S. at 171–72, the court found that a jury may have been
swayed by the mitigation evidence in a lesser crime, Hodge, 2011 WL 3805960, at *5. But it
concluded that for this crime––a premeditated, cold-blooded murder and attempted murder of
two innocent victims––the mitigation evidence would not have swayed a reasonable jury. Id.
If the Kentucky Supreme Court had not considered how the proposed mitigation evidence
compared to the circumstances of the crime, Hodge would have likely challenged the decision

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for not conducting a fulsome inquiry under Williams. He could have argued the proposed
mitigation evidence showed that “his violent behavior was a compulsive reaction rather than the
product of cold-blooded premeditation.” Williams, 529 U.S. at 398. The Kentucky Supreme
Court simply preempted this argument and made clear that the proposed mitigation evidence
provided “no rationale” for Hodge’s crimes. Hodge, 2011 WL 3805960, at *5. This was not
error.
For this reason, I concur.

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___________________
CONCURRENCE
___________________
BLOOMEKATZ, Circuit Judge, concurring. The facts in this case are extreme. As the
dissent explains, and is further detailed in the record, the evidence demonstrates that Hodge had
one of the most traumatic and harrowing childhoods I would think one could find described in
the pages of the federal reporters. His crime was also horrifying, as the majority recounts.
Despite the severe aggravating factors surrounding Hodge’s crime, I believe there is nonetheless
at least a “reasonable probability” that a jury, confronted with the sobering evidence that
Hodge’s childhood involved a “most severe and unimaginable level of physical and mental
abuse,” would have decided that Hodge deserved to be spared the death penalty. Hodge
v. Commonwealth, No. 2009-SC-000791-MR, 2011 WL 3805960, at *3, *5 (Ky. Aug. 25, 2011)
(citing Strickland v. Washington, 466 U.S. 668, 694–95 (1984)). If I were a Kentucky state court
judge confronting this case on direct review, I would hold that Hodge was prejudiced by his
counsel’s failure to introduce the substantial mitigation evidence to which Hodge now points.
But that is not our role at this stage. On federal habeas review, we are constrained by
AEDPA. See Brown v. Payton, 544 U.S. 133, 148 (2005) (Breyer, J., concurring) (“In my view,
this is a case in which Congress’ instruction to defer to the reasonable conclusions of state-court
judges makes a critical difference.”). Applying AEDPA’s deferential standard, I agree with the
majority that the Kentucky Supreme Court’s decision here was neither contrary to nor an
unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1). As I
read the state court’s decision, the court grappled with the extreme nature of both the mitigating
and aggravating circumstances and concluded that, on balance, there was not a reasonable
probability that a jury would have changed its mind at the penalty phase of Hodge’s trial.
Focusing on two sentences in the opinion, the dissent reads the state court as imposing an
improper nexus requirement—that is, dismissing Hodge’s evidence to the extent it did not
directly explain why he committed this particular crime. While the dissent presents a plausible
reading, the state court’s decision need not be read as discounting entirely the import of the

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mitigation evidence Hodge’s defense counsel failed to present. And given the deferential review
required in this posture, I do not read the state court’s decision so narrowly.
Nor do I read the majority opinion as creating categorical rules regarding the weight or
import of types of mitigation evidence. Certainly, as the majority states, courts may consider
whether mitigation evidence has a direct tie to a defendant’s crime as one factor in their analysis.
See Thornell v. Jones, 602 U.S. 154, 164–65 (2024). But the majority rightly does not reject the
proposition that mitigation evidence that lacks a direct relation to a defendant’s crime—here,
evidence of devastating childhood trauma—can nevertheless be critical to a jury’s penalty-phase
decision. See Majority Op. at 22–24. “Mitigation evidence need not, and rarely could, ‘explai[n]’
a heinous crime; rather, mitigation evidence allows a jury to make a reasoned moral decision
whether the individual defendant deserves to be executed, or to be shown mercy instead.” Hodge
v. Kentucky, 568 U.S. 1056, 1056 (2012) (Sotomayor, J., dissenting from denial of certiorari)
(alteration in original). Evidence of a traumatic childhood could also play a role in explaining a
defendant’s criminal conduct, even if the defendant’s crimes were not directed at the subjects of
their abuse or otherwise obviously related to their past traumatic experiences. See United States
v. Rivera, 192 F.3d 81, 85 (2d Cir. 1999) (“It seems beyond question that abuse suffered during
childhood—at some level of severity—can impair a person’s mental and emotional conditions.”);
Deborah W. Denno, How Courts in Criminal Cases Respond to Childhood Trauma, 103 Marq.
L. Rev. 301, 310 (2019) (“The vast array of research on childhood trauma . . . indicates links,
either direct or indirect, between the effects of such trauma and long-term psychiatric and
behavioral difficulties, including criminality.”). The brain is not so simple, and that complexity
cautions against categorically discounting the mitigating value of evidence like we have here, of
Hodge’s childhood abuse. The majority’s resolution of Hodge’s Strickland claim comports with
that understanding.
I accordingly join the majority opinion. But my agreement with the majority that the
Kentucky Supreme Court’s decision does not meet the high threshold required to warrant federal
intervention under AEDPA is in no way an endorsement of the state court’s decision. In future
cases, state courts reviewing Strickland claims in this context must still take seriously the
possibility that mitigation evidence could have swayed a jury not to vote for death, even in the

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face of a heinous murder, and even when that mitigation evidence does not directly explain away
a defendant’s crime.

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_________________________
CONCURRENCE/DISSENT
_________________________
Helene N. White, Circuit Judge, concurring in part and dissenting in part. I join in the
majority’s discussion and rejection of the jury-tampering claim. I respectfully dissent, however,
from the majority’s conclusion that the Kentucky Supreme Court reasonably applied Strickland
v. Washington in rejecting Hodge’s ineffective-assistance-of-counsel claim on the basis that he
failed to show prejudice. 466 U.S. 668 (1984). Accordingly, I would reverse the district court’s
denial of habeas relief.
I.
At the sentencing phase of Hodge’s trial, defense counsel presented no mitigation case
and said only: “Benny Lee Hodge has a loving and supportive family-a wife and three children.
He has a public job work record and he lives and resides permanently in Tennessee.” Hodge
v. Commonwealth, No. 2009-SC-000791-MR, 2011 WL 3805960, at *2 (Ky. Aug. 25, 2011).
Counsel’s perfunctory stipulation omitted considerable mitigation evidence, as shown by the
Kentucky Supreme Court’s description of the evidence presented at his postconviction hearing:
[W]e turn to a review of the mitigation evidence that was available at the time of
Hodge’s trial. His mitigation case would have been based on his childhood,
which was marked by extreme poverty, sustained physical violence, and constant
emotional abuse. The trial court’s characterization of Hodge’s childhood as
“difficult” is not inaccurate, but certainly inadequate.
The evidence established that Hodge’s mother, Kate, was married to six different
men, all of whom were substance abusers and some of whom were physically
abusive to Kate. She married Billy Joe when Hodge was eight years old. The
majority of Hodge's evidence concerned the extreme violence he suffered at the
hands of his stepfather. Again, the trial court’s description of Billy Joe as
“particularly abusive” is insufficient.
Billy Joe was described by at least four witnesses as a “monster.” His rage was
explosive and violent, often triggered by Kate’s shows of affection towards her
children. At other times, he was incited for no apparent reason and the household
lived in constant fear as a result. He would regularly rape Kate, threaten her with
a gun, and beat her. On one occasion, Billy Joe assaulted Hodge’s mother so

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violently that she suffered a miscarriage. Hodge’s sisters testified that, more than
once, they thought Kate had been beaten to death.
Hodge’s mother and sisters agreed that Billy Joe was more violent and abusive
towards [Hodge] than any other person in the house. This is perhaps because
Hodge, being the only male child in the home, often tried to defend his mother
and sisters from physical attacks. He was regularly beaten with a belt and metal
buckle, which left bruises and welts on his body that were observed by family
members and neighbors alike. At other times, he was kicked, thrown against
walls, and punched. Hodge’s half-sister specifically recalled an occasion when
Billy Joe rubbed Hodge's face in his own feces. His sisters testified that Billy Joe
made [Hodge] watch while he brutally killed [Hodge’s] dog. Because his mother,
who was evidently paralyzed by fear and substance abuse, refused to protect
Hodge, he often ran away from home.
School records indicate that Hodge was of normal intelligence and received
average grades through elementary school. After Billy Joe entered the home, his
grades declined, he became withdrawn, and he was often truant. He began
stealing at the age of twelve and was sentenced to a juvenile detention facility
when he was fifteen.
There was testimony that, at the Tennessee residential facility, Hodge was
subjected to regular beatings. He escaped from the facility twice and once refused
to return after a furlough. After finally being released at the age of sixteen,
Hodge assaulted his stepfather, which resulted in his return to the juvenile facility
until he was eighteen years old.
At the age of twenty, Hodge pled guilty to his first felonies: burglary and grand
larceny. He escaped from custody four days later. Following his capture and
eventual parole, he was convicted of a separate armed robbery. Again, he escaped
and was recaptured. After serving nearly eight years in prison for that felony,
Hodge was again paroled. He was thirty-four years old at the time he killed
Tammy Acker. He had been married three times and had fathered three children.
At the evidentiary hearing, Hodge presented the expert opinions of two
psychologists, both of whom had assessed him in 2009. Both agreed that the
violence in Hodge’s childhood home was ruinous to his development and
compounded by the physical abuse occurring at the Tennessee residential facility.
One of the psychologists diagnosed Hodge with post traumatic stress disorder
(PTSD) and opined that it was present at the time of Hodge’s crimes and trial.
This expert further testified that PTSD can render a person violent, hypervigilant,
aggressive, and erratic. Both psychologists found it particularly interesting to
note that Hodge did not inflict any abuse on his own children and was described
by all as a loving father.
Hodge, 2011 WL 3805960, at *3-4.

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However, the Kentucky Supreme Court concluded that Hodge was not prejudiced by his
counsel’s failure to introduce this mountain of evidence:
We have considered the totality of evidence before Hodge’s sentencing jury,
including the proposed mitigation evidence. Balancing all of the available
evidence in mitigation and aggravation, we are compelled to reach the conclusion
that there exists no reasonable probability that the jury would not have sentenced
Hodge to death. There is no doubt that Hodge, as a child, suffered a most severe
and unimaginable level of physical and mental abuse. Perhaps this information
may have offered insight for the jury, providing some explanation for the career
criminal he later became. If it had been admitted, the PTSD diagnosis offered in
mitigation might have explained Hodge’s substance abuse, or perhaps even a
crime committed in a fit of rage as a compulsive reaction. But it offers virtually
no rationale for the premeditated, cold-blooded murder and attempted murder of
two innocent victims who were complete strangers to Hodge. Many, if not most,
malefactors committing terribly violent and cruel murders are the subjects of
terrible childhoods. Even if the sentencing jury had this mitigation evidence
before it, we do not believe, in light of the particularly depraved and brutal nature
of these crimes, that it would have spared Hodge the death penalty.
Id. at *5 (internal citations omitted).
II.
To prevail on a habeas claim premised on the ineffective assistance of counsel (IAC),
Hodge must satisfy the two-part test set forth in Strickland, 466 U.S. at 687, by showing “that
[his] lawyers performed well below the norm of competence in the profession and that this
failing prejudiced [his] case.” Caudill v. Conover, 881 F.3d 454, 460 (6th Cir. 2018) (citing
Strickland, 466 U.S. at 687). Because the Kentucky Supreme Court has already rejected
Hodge’s IAC claim, the Antiterrorism and Effective Death Penalty Act (AEDPA) requires that
he also demonstrate that the Kentucky Supreme Court’s decision “was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” or was “based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state-court
decision is “contrary to clearly established federal law if ‘the state court arrives at a conclusion
opposite to that reached by [the Supreme Court] on a question of law,’ or ‘confronts facts that are
materially indistinguishable from a relevant Supreme Court precedent and arrives at’ an opposite

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result.” Carter v. Mitchell, 829 F.3d 455, 468 (6th Cir. 2016) (alteration in original) (quoting
Williams v. Taylor, 529 U.S. 362, 405 (2000)).
A.
All agree that Hodge’s trial counsel had a duty to reasonably investigate and present a
mitigation case, see Wiggins v. Smith, 539 U.S. 510, 521-22 (2003) (citing Strickland, 466 U.S.
at 691), and because counsel failed to do so, his performance was constitutionally ineffective.
Hodge, 2011 WL 3805960, at *3. Thus, only Strickland’s prejudice prong is at issue here, and it
is on this point alone that Hodge must demonstrate that the Kentucky Supreme Court acted in a
manner contrary to clearly established federal law.
In assessing prejudice, the Kentucky Supreme Court was entitled to weigh the mitigating
and aggravating evidence, and even to take into account the fact that the mitigation evidence
does little to explain the crime. Thornell v. Jones, 602 U.S. 154, 166 (2024). Such a
determination would normally be entitled to AEDPA deference. But here, the court’s prejudice
analysis rested on a determination that, in instances of particularly brutal or premeditated
murder, evidence of the defendant’s difficult upbringing has mitigation weight only to the extent
that it offers a “rationale” for the murder, and, therefore, can sway the jury only if it explains the
crime. The Kentucky Supreme Court thus categorically differentiated the “many, if not most,
malefactors” who have “terrible childhoods” from those malefactors whose childhoods have
potential mitigation weight in swaying a jury on the sole ground that those whose terrible
childhoods might sway a jury are those whose childhoods explain the crime. This reasoning is
contrary to established Supreme Court precedent applying Strickland’s prejudice prong.
In Williams, 529 U.S. at 395, the defendant “had been severely and repeatedly beaten by
his father” and “committed to the custody of the social services bureau for two years during his
parents’ incarceration (including one stint in an abusive foster home).” The Supreme Court
determined that “the graphic description of [the defendant’s] childhood, filled with abuse and
privation, . . . might well have influenced the jury’s appraisal of his moral culpability.” Id. at
398. Importantly, the Court also stated that such evidence “may alter the jury’s selection of
penalty, even if it does not undermine or rebut the prosecution’s death-eligibility case.” Id. In

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other words, evidence may have weight even if it does not explain the crime or undermine any of
the aggravating factors. The Court concluded that because the state supreme court “did not
entertain that possibility,” it “failed to accord appropriate weight to the body of mitigation
evidence available to trial counsel.” Id.
In Wiggins, the Supreme Court held that a Maryland death-row inmate, who was found
guilty of drowning a seventy-seven-year-old woman in her bathtub, was prejudiced by counsel’s
failure to produce evidence of a childhood characterized by extreme neglect and physical and
sexual abuse. See 539 U.S. at 538. Although the crime was deeply disturbing, the Court
explained that evidence of the defendant’s extremely difficult childhood, taken with other
mitigating evidence, “‘might well have influenced the jury’s appraisal’ of Wiggins’ moral
culpability.” Id. (quoting Williams, 529 U.S. at 398). The Court did not discount this evidence
despite there being little apparent connection between Wiggins’s childhood and the crime he
committed.
Similarly, in Rompilla v. Beard, 545 U.S. 374 (2005), the Court considered whether a
Pennsylvania death-row inmate was prejudiced by his counsel’s failure to investigate and present
mitigation evidence that the defendant had grown up in a dysfunctional home similar to Hodge’s,
had endured extreme abuse as a child, and had significant mental-health problems likely
resulting from the abuse. Id. at 391-93. Rompilla’s crime was brutal: he was found guilty of
murdering a bar owner during a burglary by stabbing him and setting him on fire, and the jury
specifically found that Rompilla committed the murder by means of torture. Rompilla v. Horn,
355 F.3d 233, 236-38 (3d Cir. 2004). Rompilla also had a history of violent felonies, including a
conviction for a factually similar crime in which he had burglarized a bar after closing, raped the
bar owner, and “slashed her with a knife.” Id. at 237. Nonetheless, the Supreme Court
concluded that although it was “possible that a jury could have heard [the mitigating evidence]
and still have decided on the death penalty,” the “mitigating evidence, taken as a whole, might
well have influenced the jury’s appraisal of Rompilla’s culpability, and the likelihood of a
different result if the evidence had gone in [was] sufficient to undermine confidence in the
outcome actually reached at sentencing.” Rompilla, 545 U.S. at 393 (internal quotation marks
and citations omitted). The facts of Rompilla’s conviction were undeniably brutal, and his

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mitigation evidence did nothing to explain the crime. But once again, the Supreme Court
afforded considerable weight to the mitigating evidence.
B.
The Kentucky Supreme Court’s refusal to consider the other purposes of mitigation
evidence—beyond explaining the crimes—overlooks the long-recognized understanding in
death-penalty cases that evidence that does not explain the crime may still explain the person
who committed the crime in a way that softens the jury’s impressions of him. See Penry
v. Lynaugh, 492 U.S. 302, 328 (1989) (explaining that the purpose of mitigation evidence is for
“the jury to give ‘a reasoned moral response to the defendant’s background, character, and
crime’” (quoting Franklin v. Lynaugh, 487 U.S. 164, 184 (1988) (emphasis in original)
(O’Connor, J., concurring in judgment))). The Kentucky Supreme Court’s decision conflicts
with the Supreme Court’s decisions in Wiggins, 539 U.S. at 538, Rompilla, 545 U.S. at 393, and
Williams, 529 U.S. at 398.
Williams, Rompilla, and Wiggins were all decided before 2011, when the Kentucky
Supreme Court issued its decision in Hodge’s case. Thus, their holdings constitute clearly
established federal law for the purposes of our AEDPA analysis. Supreme Court cases on
prejudice can be relevant to our analysis, not only insofar as they demonstrate the ways a state
court can unreasonably apply Strickland, but also because a state court can act contrary to or
unreasonably under the holdings of the cases themselves. When the Supreme Court “relies on a
legal rule or principle to decide a case, that principle is a ‘holding’ of the Court for purposes of
AEDPA.” Andrew v. White, 145 S. Ct. 75, 81 (2025). Williams, Rompilla, and Wiggins all
relied on the legal principle that mitigation evidence that does not explain the crime can have
weight for other purposes, and, indeed, can have enough weight to outweigh evidence of a
particularly brutal crime.
Williams is also instructive in another respect. In Williams, the Court found that the
Virginia Supreme Court applied the wrong standard in considering prejudice. See 529 U.S. at
393 (“[T]he Virginia Supreme Court read our decision in [Lockhart v. Fretwell, 506 U.S. 364
(1993)] to require a separate inquiry into fundamental fairness even when Williams is able to

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show that his lawyer was ineffective and that his ineffectiveness probably affected the outcome
of the proceeding.”). In particular, the Virginia Court imposed an additional requirement on
mitigation during the prejudice phase of the Strickland analysis. Id. 392-94. And the Supreme
Court held that such an imposition was contrary to federal law, even though the state court had
correctly identified the Strickland standard. Id.
Similarly, in this case, the Kentucky Supreme Court applied an incorrect standard by
dismissing all mitigation evidence that did not explain the crimes. Although a state court’s
weighing of aggravating and mitigating factors is entitled to deference and may not be disturbed
unless unreasonable “beyond any possibility for fairminded disagreement,” Harrington
v. Richter, 562 U.S. 86, 103 (2011), a state court is not entitled to add an extra legal requirement
to the Supreme Court’s well-established Strickland framework, Williams, 592 U.S. at 392-94.
This is a crucial distinction. Had the Kentucky Supreme Court conducted a proper weighing
analysis and concluded that the aggravating factors outweighed the mitigating evidence, there
would be no issue. But the Kentucky Supreme Court’s application of a rule that evidence
regarding a defendant’s horrific upbringing can outweigh the aggravating factor of a particularly
violent and cold-blooded crime only where the defendant’s background provides a “rationale”
for the crime resulted in a prejudice analysis that conflicts with Supreme Court precedent. As
Justice Sotomayor observed in her dissent from the denial of certiorari in Hodge’s state case,
“[t]he Kentucky Supreme Court’s brief discussion of the weight and impact of Hodge’s
mitigation evidence reasonably suggests that its prejudice determination flowed from its legal
errors.” Hodge v. Kentucky, 133 S. Ct. 506, 510 (2012) (Sotomayor, J., dissenting from denial of
certiorari). That error, rather than the weight the Kentucky Supreme Court accorded to the
aggravating and mitigating evidence, is what makes the court’s decision contrary to established
Supreme Court precedent.
Further, the Williams Court determined that, in addition to applying the wrong standard,
the Virginia Supreme Court was unreasonable in looking to the omitted mitigation testimony’s
relevance to the defendant’s dangerousness only, without recognizing its relevance to moral
culpability. 529 U.S. at 397-98. Agreeing with this conclusion, Justice O’Connor stated that

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“[t]he Virginia Supreme Court’s decision [finding a lack of prejudice] reveals an obvious failure
to consider the totality of the omitted mitigation evidence.” Id. at 416.
In sum, because the Kentucky Supreme Court applied a prejudice standard that is
contrary to the Supreme Court’s cases explaining the importance of mitigation evidence to the
perception of a death-row inmate’s moral culpability, there has been no proper application of the
prejudice prong to which to apply AEDPA deference.
C.
The majority argues that the Kentucky Supreme Court did not apply an improper nexus
requirement, analogizing to the Supreme Court’s recent holding in Thornell v. Jones, 602 U.S.
154, 166 (2024), that mitigating evidence lacking a “causal connection” to a crime carries little
weight (citation omitted). To be sure, mitigation evidence may have more significant weight if it
can explain the crime, making the question whether the evidence explains the crime a relevant
one. Porter v. McCollum, 558 U.S. 30, 43 (2009). And mitigation evidence that does not
explain the crime is less weighty than it would be if it did. Thornell, 602 U.S. at 166-68. But
that does not mean that explaining the crime is the only weight mitigation evidence can have.
Otherwise, such evidence would be irrelevant if it does not explain the crime, and that is not the
law. See Smith v. Texas, 543 U.S. 37, 45 (2004). And though Thornell and Porter allow a court
to treat non-explanatory evidence as less weighty than similar explanatory evidence, they do not
allow a court to disregard out of hand any weight mitigating evidence might have apart from its
ability to explain the crime. To do so would be directly in conflict with Smith and Williams, and
the Supreme Court does not overrule itself silently. Rodriguez de Quijas v. Sherson, 490 U.S.
477 (1989). Here, the Kentucky Supreme Court did more than conclude that the mitigating
evidence would not have affected the outcome of the trial; it determined that evidence of
Hodge’s childhood trauma could sway the jury only to the extent that it caused the crime in some
way, because the mitigation evidence has weight only for the purpose of explaining the crime.
A close look at Thornell demonstrates the flaw in the majority’s analogy. In that case,
the defendant claimed that his newly proffered evidence showed that he suffered from PTSD,
ADHD, a mood disorder, and bipolar depressive disorder. Id. at 166. The Supreme Court

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concluded that it was “not reasonably likely that this evidence would have resulted in a different
sentence.” Id. It reasoned that the Arizona courts had already received testimony that the
defendant suffered from a serious mental illness but had “declined to give this evidence much
weight because [defendant] did not establish a causal connection between his alleged mental
illness and his [criminal] conduct.” Id. (citation and internal quotation marks omitted).
This determination does not control the outcome here, in a case involving severe
childhood abuse, which the Supreme Court has concluded “might well have influenced the jury’s
appraisal of [the defendant’s] moral culpability,” even where it does not explain the crime,
Williams, 529 U.S. at 398. Indeed, the Court in Thornell explored how newly introduced
evidence of cognitive impairment caused by physical trauma, which did not explain the
defendant’s crimes, might nonetheless be “helpful” and have “some mitigating weight” (although
it ultimately rejected that evidence as cumulative and uncorroborated). Thornell, 602 U.S. at
167-68. This confirms that, while such evidence might have less weight than it would if it did
explain the crime, it still has weight unconnected to its explanatory value—weight which must
be considered on its own terms. The very fact that the Court in Thornell felt the need to explore
each piece of mitigating evidence that did not explain the crime and reject it as uncorroborated or
cumulative rather than simply writing off all nonexplanatory evidence as unconnected to the
crime—as the Kentucky Supreme Court did—demonstrates the impropriety of the Kentucky
Supreme Court’s mode of analysis. Id.
Thornell is also distinguishable from this case in that it relied heavily on Arizona law.
The Court concluded that testimony regarding the defendant’s mental illnesses that did not link
the illnesses to his crimes “would have done him little good in the Arizona courts,” citing an
Arizona Supreme Court case holding that “evidence of causation is required before mental
impairment can be considered a significant mitigating factor.” Id. at 167 (citation omitted). No
such state law is involved here.
D.
The majority additionally contends that the premise of Hodge’s argument—that the
Kentucky Supreme Court imposed a nexus requirement—mischaracterizes the state court’s

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opinion. But the state court’s analysis of the proposed mitigation evidence was clear. The
Kentucky Supreme Court’s rejection of the mitigation evidence was solely based on a single
factor: the mitigation evidence’s inability to explain the crime. The Court wrote: “It offers
virtually no rationale for the premeditated, cold-blooded murder and attempted murder of two
innocent victims who were complete strangers to Hodge. Many, if not most, malefactors
committing terribly violent and cruel murders are the subjects of terrible childhoods.” Hodge,
2011 WL 3805960, at *5 (emphasis added). As a result, we are left with no possible conclusion
other than that the court determined that the mitigation evidence had relevance only to the extent
that it explained the crimes and completely dismissed mitigation evidence that did not do so.
The majority and concurrences contend that the Kentucky Supreme Court merely
balanced the severity of Hodge’s crimes against the mitigation evidence, and reduced the weight
it gave that mitigation evidence in that balancing. But the Kentucky Supreme Court’s statement
that the mitigation evidence “offers virtually no rationale for the premeditated, cold-blooded
murder and attempted murder of two innocent victims,” as the sole rationale for disregarding the
evidence, in combination with the court’s comment that “many, if not most, malefactors
committing terribly violent and cruel murders are the subjects of terrible childhoods,” Hodge,
2011 WL 3805960, at *5, demonstrates that the court was imposing an additional requirement
that the evidence go beyond the evidence of a “terrible childhood” and “provide a rationale” for
the crime. The Kentucky Supreme Court was not merely considering Hodge’s crimes as a factor
in its decision, but rather was dismissing mitigation evidence that failed to explain the crimes.
As explained, dismissing such evidence merely because it does not provide a rationale for
the crimes runs contrary to the Supreme Court’s holdings in Wiggins, 539 U.S. at 538, Rompilla,
545 U.S. at 393, and Williams, 529 U.S. at 398.
III.
Because the state court’s reasoning was “contrary to” clearly established federal law, the
prerequisites to habeas relief found in § 2254(d) are met and de novo review of the prejudice
prong of the Strickland analysis is appropriate. Fulcher v. Motley, 444 F.3d 791, 799 (6th Cir.
2006). Hodge must show that “there is a reasonable probability that, absent the errors, the
sentencer . . . would have concluded that the balance of aggravating and mitigating

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circumstances did not warrant death.” Shinn v. Kayer, 592 U.S. 111, 117-18 (2020) (quoting
Strickland, 446 U.S. at 695). Where, as here, the unanimous jury submitted a recommendation
for the death penalty, this means that Hodge must demonstrate “a reasonable probability that at
least one juror would have struck a different balance.” Wiggins, 539 U.S. at 537. The
chance one juror would have voted against death “must be substantial, not just conceivable,”
Richter, 562 U.S. at 112, and must be demonstrated with “evidence that ‘differ[s] in a substantial
way—in strength and subject matter—from the evidence actually presented at sentencing,’”
Caudill, 881 F.3d at 464 (alteration in original) (quoting Hill v. Mitchell, 400 F.3d 308, 319 (6th
Cir. 2005)).
I would find that, applying the proper standard for prejudice, Hodge made this showing.
This is not a case arguing that the jury’s decision may have been different if defense counsel
had developed the mitigation evidence more thoroughly. See, e.g., Byrd v. Collins, 209 F.3d
486, 497, 526-27 (6th Cir. 2000) (affirming denial of habeas relief where the trial court was
presented with “evidence of Petitioner’s unhappy childhood, lack of paternal love and affection,
and some degree of abuse,” but the petitioner argued that “counsel was ineffective for failing to
present sufficient mitigation evidence and obtain the assistance of an independent
psychologist”); Halvorsen v. White, 746 F. App’x 489, 503-05 (6th Cir. 2018) (affirming denial
of habeas relief where the petitioner argued that his counsel presented insufficient evidence of
his brain damage from years of drug abuse, but “[a]t the penalty phase, trial counsel introduced
additional evidence of [the petitioner]’s substance abuse through several witnesses”). Rather, at
the sentencing phase, the judge and jury “heard almost nothing that would humanize [Hodge] or
allow them to accurately gauge his moral culpability.” Porter, 558 U.S. at 41. Defense counsel
in this case provided no evidence at all of the extensive and severe trauma Hodge experienced as
a child.
And, the unheard mitigation evidence here was substantial and significant. Hodge
suffered from “a most severe and unimaginable level of physical and mental abuse” during his
childhood and adolescent years. Hodge, 2011 WL 3805960, at *5. As in Wiggins, “[h]ad the
jury been able to place [Hodge’s] excruciating life history on the mitigating side of the scale,
there is a reasonable probability that at least one juror would have struck a different balance.”

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539 U.S. at 537. Thus, there is no question that the mitigation evidence that was presented at
Hodge’s postconviction hearing “differ[ed] in a substantial way—in strength and subject
matter—from the evidence actually presented at sentencing,” Caudill, 881 F.3d at 464 (alteration
in original) (citation omitted).
I do not contend, and do not understand Hodge to be arguing, that “if it can be shown that
trial counsel failed to produce any mitigating evidence that can be characterized as substantial,
[Hodge] must be resentenced.” Majority Opinion at 23 (citation and internal quotation marks
omitted). That is clearly not the law; rather, a showing of prejudice is required. And the failure
to produce mitigation evidence that is substantial is not per se prejudicial, as shown by the cases
discussed above.
Thornell supports, rather than precludes, a finding of prejudice here. The Court in
Thornell noted that “[i]n each of the ineffective-assistance-of-counsel cases on which the Ninth
Circuit relied [in finding prejudice], this Court found that defense counsel introduced little, if
any, mitigating evidence at the original sentencing.” 602 U.S. at 171 (citing Porter, 558 U.S. at
41; Williams, 529 U.S. at 395–98; Rompilla, 545 U.S. at 378, 393; Wiggins, 539 U.S. at 515,
534–35). It distinguished the facts in Thornell, noting that the defendant had “started with much
more mitigation.” Id. Hodge’s case is more like Porter, Williams, and Rompilla in that defense
counsel introduced no mitigation evidence at all.
The majority asserts that the Supreme Court’s holding in Shinn v. Kayer, 592 U.S.
111 (2020) dictates that we affirm the district court’s finding of a lack of prejudice. But the
defendant in Kayer did not experience severe child abuse like Hodge did. The original trial
record in Kayer indicated “that there was a family history on both sides of alcoholism[,] that
there was a history of mental illness[,] . . . that [the defendant] was slow to develop as a child[,]”
and that the defendant “grew up with significant instability including frequent moves and his
father’s sudden death when [the defendant] was still very young.” Kayer v. Ryan, 923 F.3d 692,
697 (9th Cir. 2019) (internal quotation marks omitted). To this, post-conviction counsel added
four categories of evidence: “evidence that he was addicted to alcohol and gambling; evidence
that he had suffered a heart attack about six weeks before the murder; evidence of mental illness,
including a diagnosis of bipolar disorder; and evidence that members of his family had suffered

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from similar addictions and illnesses in the past and that this had affected his childhood.” Kayer,
592 U.S. at 115. Several of these categories overlapped with the evidence of mitigation presented
at trial.
Although the evidence presented in Kayer was significant, it was very different from the
evidence Hodge presented. First, Hodge’s new evidence was markedly different from the single
sentence of mitigation evidence actually presented at trial, and second, Hodge’s new evidence
demonstrated challenges in Hodge’s childhood that far eclipsed those faced by Kayer. Kayer,
therefore, does not control the outcome here. Indeed, cases such as Wiggins, 539 U.S. at 538 and
Rompilla, 545 U.S. at 393 suggest that the Supreme Court views severe abuse as distinct from
other types of childhood difficulties in its ability to mitigate a defendant’s crimes. To be sure, as
the majority notes, the facts of Wiggins and Rompilla are not on all fours with those in this
case—the defendant in Wiggins had no aggravating factors or history of violence, 539 U.S. at
537, and the defendant in Rompilla had a learning disability that prevented him from
understanding that his conduct was criminal, 545 U.S. at 392. But these differences do not
negate the fact that evidence of severe childhood abuse could have influenced the jury in this
case as well.
Finally, the majority points to the Kentucky Supreme Court’s statement that “the
evidence of Hodge’s abusive childhood would have also included the damaging evidence of his
long and increasingly violent criminal history, his numerous escapes from custody, and the
obvious failure of several rehabilitative efforts.” Hodge, 2011 WL 3805960, at *4. But the
likelihood that the state would have provided additional damaging information in response to any
mitigation evidence does not render counsel’s failure harmless. Foust v. Houk, 655 F.3d 524,
546 (6th Cir. 2011) (“Powerful aggravating circumstances, however, do not preclude a finding of
prejudice. . . . The new evidence about Foust’s family history is overwhelming, and it
undermines reasonable confidence in the reliability of Foust’s death sentence.”). As in Williams,
529 U.S. at 396, “the failure to introduce the comparatively voluminous amount of evidence that
did speak in [Hodge’s] favor was not justified by a tactical decision to focus on” the possibility
of damaging evidence being introduced.

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IV.
For these reasons, I would reverse the district court’s denial of habeas relief and would
direct that Kentucky either provide Hodge with a new penalty-phase trial or amend his sentence
to life imprisonment.

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