Willoughby v. Simpson

Filing 73

MEMORANDUM OPINION & ORDER: (1) DENYING petitioner's 7 Petition for writ of habeas corpus; (2) action is DISMISSED WITH PREJUDICE & stricken from the docket; (3) order is final & appealable; a certificate of appealability will be issued for Claims 1 & 5(1)(d) & denied for all other claims raised; (4) judgment will be entered in favor of respondent. Signed by Judge David L. Bunning on 8/29/14.(KJR)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
CIVIL ACTION NO. 08-179-DLB
MITCHELL WILLOUGHBY

vs.

PETITIONER

MEMORANDUM OPINION AND ORDER DENYING
PETITION FOR WRIT OF HABEAS CORPUS

THOMAS L. SIMPSON, Warden,
Kentucky State Penitentiary

RESPONDENT
*** *** *** ***

This matter is before the Court on the petition of Mitchell Willoughby, by counsel, for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On July 22, 1983, a state-court jury found Willoughby guilty of three counts of firstdegree murder for the deaths of Joe Norman, Joey Durrum and Jacqueline Greene. The
jury recommended that Willoughby be sentenced to death for the murder of Durrum and
Greene, and to life imprisonment for the murder of Norman. On August 31, 1983, the
Fayette Circuit Court followed the recommendation of the jury and imposed the sentence
of death accordingly. Willoughby is presently imprisoned in the Kentucky State Penitentiary
as a result of his conviction and sentence.
In this § 2254 petition, Willoughby contends that he is being held in violation of the
Constitution of the United States because of constitutional errors that occurred during his
trial. Willoughby is not arguing that he is actually innocent of the crimes of conviction.
Rather, he argues that his constitutional rights were violated by juror misconduct, confusing
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jury instructions, prosecutorial misconduct, and being deprived of effective assistance of
counsel. For the following reasons, the Court will deny Willoughby’s habeas petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
A.

Trial in Fayette Circuit Court

Willoughby, Leif Halvorsen and Susan Hutchens were indicted on March 7, 1983 by
the Fayette County Grand Jury on three counts of murder and two counts of robbery in the
first degree. Willoughby was also charged with being a persistent felony offender in the
second degree, while Halvorsen and Hutchens were each charged with carrying a
concealed weapon.

Hutchens agreed to plead guilty to two counts of hindering

prosecution, and subsequently testified at Willoughby and Halvorsen’s joint trial before a
jury in Fayette Circuit Court in the Commonwealth of Kentucky.
The Honorable Armand Angelucci, Fayette County Circuit Court Judge, presided
over the trial. Willoughby was represented by Joe A. Jarrell, an attorney from the Fayette
County Legal Aid office. The Kentucky Supreme Court has ably summarized the evidence
presented at Willoughby’s trial as follows:
The bodies of Joe Norman and Joey Durrum were found on the side
of the Brooklyn Bridge on the Jessamine-Mercer County line. The body of
Jacqueline Greene was found in the Kentucky River below the bridge. Each
of the victims had been shot to death. David Warner, who lived on the
Jessamine County side of the Brooklyn Bridge, became suspicious when he
noticed a light blue Ford van and a dark pickup truck lurking at various points
around the bridge. At one point, the pickup truck parked on the bridge, a
person got out of the passenger side, and Warner heard a big splash.
Forty-five minutes later, Warner heard a noise that sounded like a car hitting
a guardrail or a sign. He looked out to see the blue van and the pickup truck
speeding off across the bridge toward Lexington. Warner called the police.
When the police arrived, they found two of the victims on the side of
the bridge, each bound with a blue-and-yellow rope that was attached to a
heavy rock. The third victim was found in the river below the bridge, wrapped
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in a sheet that was also bound with a blue-and-yellow rope and attached to
a heavy rock. A traffic sign near the bridge had been knocked over by a
vehicle. It had paint smears on it and broken glass lying at its base.
Officer William Foekele testified that around 1:30 p.m., on January 13,
he was on Loudon Avenue in Lexington, looking for a car involved in another
investigation, when he noticed a blue Ford van stopped at 215 Loudon
Avenue. He wrote down the van's license number. On the following day,
police learned that two of the victims had lived in the house at 215 Loudon
Avenue. A truck belonging to the third victim was found parked at the house.
When police entered, they found blood at various places in the house.
Upon learning that a blue Ford van was seen in the area where the
bodies were discovered, Officer Foekele suspected that it was the same
vehicle which he had seen near the house at 215 Loudon the day before. A
registration check revealed that the van was registered to Halvorsen. Foekele
then went to Halvorsen's home but saw no vehicles in the driveway. A
neighbor indicated that two men and a woman had just left in a blue pickup
truck and would probably return shortly. Police staked out all routes to the
house, located and cornered the truck, and demanded that its occupants exit.
The driver, Mitchell, jumped out immediately. Halvorsen, after hesitating, slid
out of the passenger side. The officers found a .38–caliber revolver where he
had been sitting. As the officers approached the truck, the woman, Susan
Hutchens, threw her hands up and said, “The gun's in my purse.” A
9–millimeter pistol was found sticking out of her purse.
A ballistics expert positively identified several of the projectiles
recovered from the victims' bodies as having come from the revolver and
semi-automatic pistol found in the truck. Two 9–millimeter shell casings were
additionally recovered at 215 Loudon. Fingerprints from both Willoughby and
Hutchens were found on the 9–millimeter pistol. Hutchens' fingerprints were
found on the refrigerator at 215 Loudon as well.
Also recovered from 215 Loudon, by the police, was a plastic
blue-and-yellow rope identical to that found tied around the victims' bodies.
Paint samples taken from Halvorsen's van matched the paint smears found
on the highway sign near the bridge. A comparison between pieces of glass
taken from a broken headlight on Halvorsen's van and pieces of broken
headlight recovered from the base of the highway sign proved them to have
come from the same headlight. Lastly, blood samples from Halvorsen's van
were positively identified as having come from one of the victims.
At trial, Hutchens testified that in December 1982, she and Willoughby
moved into the house at 215 Loudon, and Willoughby was employed by the
victim, Joe Norman, to help him remodel the house. Willoughby and
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Hutchens moved out a month later when Norman refused to pay Willoughby
for the work he had done.
Hutchens testified that on January 13 Willoughby and Halvorsen
asked her to buy ammunition for their pistols. Later that day, she decided to
go visit the victim, Jacqueline Greene, who lived at 215 Loudon with Joe
Norman. When she arrived, Willoughby, Halvorsen, and Norman were
standing in the driveway talking. Hutchens went into the house where Greene
introduced her to the victim, Joey Durrum. Willoughby, Halvorsen, and
Norman then came inside when “all of a sudden” the shooting began.
Hutchens put her hands over her face, covering her eyes. She heard
numerous shots. When the shooting was over, she opened her eyes to see
Willoughby and Halvorsen each wielding a pistol. Norman and Durrum had
fallen to the floor. Hutchens then saw Willoughby shoot Greene twice more,
since she was still alive. Willoughby and Halvorsen then screamed at
Hutchens to begin picking up the shell casings while they dragged the bodies
of the victims through the hallway to the back door where they were placed
in the van. Later, Halvorsen left in the van, and Willoughby left in the truck to
get rid of the bodies.
Willoughby testified at trial in his own behalf that on January 13 he and
Halvorsen went to 215 Loudon to smoke marijuana with Joe Norman. He and
Norman began arguing about a cold check that Norman had given to him,
when Norman poked him in the chest and threatened him with a bayonet.
Willoughby then reached for his gun and began shooting. He remembered
shooting Norman two or three times but did not remember shooting the other
victims.
In his statements, Willoughby took all of the blame for the shootings.
Halvorsen did not testify during the guilt phase. The jury found both
Willoughby and Halvorsen guilty of the three murder charges, and Halvorsen
guilty of carrying a concealed weapon. The penalty phase then proceeded,
after which the jury returned verdicts sentencing Halvorsen and Willoughby
to life imprisonment for the murder of Norman and to death for the murders
of Greene and Durrum.
Halvorsen v. Commonwealth, 730 S.W.2d 921, 922-23 (Ky. 1986). The trial court followed
the jury’s recommendation and sentenced Willoughby to death for the murders of Green
and Durrum, and life imprisonment for the murder of Norman.

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B.

State court procedural history
1.

Willoughby’s direct appeal to the Kentucky Supreme Court

Willoughby appealed his conviction to the Kentucky Supreme Court, raising thirty
assignments of error. The Kentucky Supreme Court consolidated Willoughby’s appeal with
his co-Defendant’s, Leif Halvorsen, for consideration. After thoroughly reviewing the issues
raised on appeal, the Supreme Court held that: (1) Willoughby’s rights were not violated
by the prosecutor’s comments that the jury’s sentencing decision was a “recommendation”;
(2) the “combination” jury instruction did not deprive Willoughby of due process; (3) the
“combination” jury instruction did not deprive Willoughby of his right to a unanimous verdict;
(4) the trial court did not err in choosing not to give an instruction on wanton murder; (5) the
prosecutor’s comments during penalty-phase closing arguments were not improper; (6)
Willoughby’s counsel from Legal Aid was not constitutionally ineffective even though
another attorney from Legal Aid represented Willoughby’s co-defendant, Hutchens; (7) trial
court did not err in admitting Willoughby’s pretrial taped and oral confessions; (8) trial court
did not err in failing to instruct on all mitigating factors. Id. at 923-28. Although the
Kentucky Supreme Court did not offer its reasoning for denying Willoughby’s other claims,
the court did state: “We have reviewed the other assertions of error and are of the opinion
none of them merits comment.” Id. at 928.
Additionally, Willoughby and Halvorsen each asserted on direct appeal that the trial
court gave confusing and misleading instructions on the defenses of extreme emotional
disturbance and intoxication. The substance of their claims was nearly identical. However,
the Kentucky Supreme Court apparently only addressed Halvorsen’s claim. Id. at 926. The
court held there was no proof to suggest Halvorsen acted under extreme emotional
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disturbance, such that the trial court did not have to sue sponte give the instruction. Id.
The court also concluded that jury was adequately instructed by the trial court on the
defense of intoxication. Id.
The Kentucky Supreme Court ultimately affirmed Willoughby’s conviction and
sentence, and then denied rehearing on July 2, 1987. Id. On December 7, 1987, the
United States Supreme Court denied Willoughby’s petition for a writ of certiorari.
Willoughby v. Kentucky, 484 U.S. 982 (1987).
2.

Willoughby’s state court post-conviction relief proceedings

On February 8, 1988, Willoughby filed a Motion to Vacate, Set Aside, or Correct
Judgment pursuant to Kentucky Rule of Criminal Procedure 11.42. Willoughby’s CR 11.42
Motion primarily asserted that he received ineffective assistance of trial counsel for ten
reasons: (1) his counsel, employed by Legal Aid, had a conflict of interest with counsel for
Willoughby’s co-Defendants, who were also employed by Legal Aid; (2) counsel’s
unconscionably large caseload prevented him from adequately preparing for trial; (3)
counsel inadequately argued the motion to suppress Willoughby’s pre-trial confession; (4)
counsel failed to review and object to defective jury instructions, and request favorable
instructions; (5) counsel failed to investigate prior to trial; (6) counsel submitted inadequate
or no pretrial motions; (7) counsel made multiple errors during voir dire; (8) counsel failed
to make appropriate objections at trial; (9) counsel made multiple errors calling witnesses,
questioning witnesses, and developing defense theories during the guilt phase; and (10)
counsel failed to make appropriate objections during the penalty phase, and failed to
request appropriate penalty-phase instructions.

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In addition to challenging his counsel’s performance, Willoughby’s CR 11.42 Motion
asserted his constitutional rights were violated in five other respects: (1) the jury considered
improper factors during their sentencing deliberations in violation of Willoughby’s Eighth
and Fourteenth Amendment rights; (2) the grand jury and petit jury did not represent a fair
cross-section of the community; (3) the prosecutor sought the death penalty against
Willoughby in discriminatory and arbitrary fashion; (4) the death penalty is cruel and
unusual punishment; and (5) the Kentucky Supreme Court erred in rejecting Willoughby’s
argument on direct appeal that his death sentence was disproportional to factually similar
cases where defendants received lesser sentences.
The Commonwealth filed a response to Willoughby’s CR 11.42 Motion on March 2,
1988, and an additional memorandum in opposition to the motion on August 10, 1988. The
11.42 Motion, however, sat pending as the Fayette Circuit Court considered other postconviction motions filed by Willoughby. For example, Willoughby moved to disqualify newly
elected Fayette Circuit Court Judge Rebecca Overstreet from considering his CR 11.42
Motion on the grounds that she could not be impartial and that she had personal knowledge
of disputed evidentiary issues germane to his case.1 Willoughby also moved to disqualify
the entire Fayette County Commonwealth’s Attorney’s office from representing the
Commonwealth during the CR 11.42 proceeding.2 Additionally, significant time passed as
Willoughby’s counsel from the Department of Public Advocacy withdrew due to a perceived
conflict of interest, and new counsel was obtained on Willoughby’s behalf.

1

Judge Overstreet granted the motion and transferred the action to Fayette Circuit Court,
Second Division, by random draw.
2

That motion was denied by the Fayette Circuit Court on December 15, 1993.
7

The new attorneys, David Bratt and Robert Brown, took some time to become
familiar with the case. On October 24, 1995, the parties convened for a status conference
to move the CR 11.42 motion toward a final hearing and adjudication. For the first time in
open court, Willoughby’s counsel made known that they had filed an ex parte motion that
must be adjudicated before the CR 11.42 hearing could take place. The Commonwealth
objected to the ex parte nature of the motion. The court sustained the objection, finding
that argument from both sides on the motion was appropriate.
On January 10, 1997, Willoughby moved the court to provide funding for
investigative and expert assistance – what was later revealed to be the subject of the
previous ex parte motion. Willoughby sought this funding to bolster his claim that trial
counsel was ineffective in failing to properly investigate the case, interview witnesses and
consider experts that might have provided mitigating testimony. The Commonwealth
responded that Willoughby failed to establish that the assistance was “reasonably
necessary” pursuant to Hicks v. Commonwealth, 670 S.W.2d 837 (Ky. 1984), and that
funding should be denied.

On August 4, 1997, the Fayette Circuit Court denied

Willoughby’s motion, finding that funding for assistance was not “reasonably necessary”
because Willoughby had already been provided an expert from the Department of Public
Advocacy and that the request for an expert was based on pure speculation.
Thereafter, Willoughby and his co-Defendant filed a petition for a writ of prohibition
with the Kentucky Court of Appeals precluding the trial court from hearing evidence on the
CR 11.42 motion before funding was made available. That petition was transferred to the
Kentucky Supreme Court for consideration. The Kentucky Supreme Court found that a writ
of prohibition was not warranted because Willoughby could not demonstrate that he would
8

suffer irreparable injury if the Circuit Court continued with the evidentiary hearing without
providing funding for investigatory and expert assistance. Instead, according to the Court,
if Willoughby’s CR 11.42 motion were denied, he could argue on appeal that the Circuit
Court improperly denied funding.
On February 11, 1997, the Fayette Circuit Court held an evidentiary hearing on
Willoughby’s CR 11.42 motion. The hearing was limited to four issues: (1) whether
counsel’s case load was too great for him to adequately prepare for trial; (2) whether
counsel adequately investigated the case, interviewed witnesses, or properly considered
expert assistance; (3) whether counsel failed to properly advise Willoughby on whether or
not he should testify during the guilt or penalty phase, and whether counsel failed to
properly prepare him to testify; and (4) whether counsel failed to adequately discuss trial
strategy with him. Willoughby called five witnesses in support of these issues: Mr. Joe
Jarrell, his trial counsel; Mr. Steven Bright, an anti-death penalty advocate, law professor,
and Director of the Southern Center for Human Rights; Mr. Jesse Willoughby and Mrs.
Marsha Willoughby, Willoughby’s parents; and Dr. Peter Schilling, a forensic psychologist.
On November 26, 2003, the Fayette Circuit Court issued a five-page order denying
Willoughby’s CR 11.42 motion. Willoughby filed a motion to alter, amend or vacate the
judgment under Kentucky Criminal Rule 59.05 on December 8, 2003, asking the Court to
consider additional evidence that was not introduced at the CR 11.42 hearing. Among the
evidence attached to the CR 59.05 motion were Willoughby’s school, military, mental
health, and incarceration records. Willoughby argued that these documents should have
been discovered by his counsel in preparation for the sentencing phase of his trial. On
January 14, 2005, the Fayette Circuit Court denied Willoughby’s CR 59.05 motion, holding
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that the new evidence could have been discovered in advance of the CR 11.42 hearing
and the evidence would not have otherwise resulted in a different adjudication of the CR
11.42 motion.
Willoughby appealed the trial court’s denial of his 11.42 and 59.05 motions, raising
six claims of error. In three of the claims, Willoughby argued his trial counsel provided
ineffective assistance, and the trial court erred in holding to the contrary. Willoughby also
argued that the trial court erred by considering each claim of ineffective assistance
separately without also considering the cumulative impact of the alleged ineffective
representation. In addition, Willoughby argued that the trial court erred in failing to provide
adequate funding to investigate potential post-conviction claims, and in failing to hold a
hearing on the additional witnesses and evidence discussed in his CR 59.05 motion.
On December 21, 2006, the Kentucky Supreme Court affirmed the trial court’s ruling
on Willoughby’s 11.42 and 59.06 motions. Willoughby v. Commonwealth, No. 2005-SC0115-MR, 2006 WL 3751392 (Ky. Dec. 21, 2006). The Court denied rehearing on May 24,
2007. Id. On November 26, 2007, the United States Supreme Court denied certiorari.
Willoughby v. Commonwealth, 552 U.S. 1043 (2007).
While Willoughby’s appeal from the trial court’s ruling on his CR 11.42 and 59.05
motions were pending, Willoughby filed a motion for relief from final Judgment pursuant to
Kentucky Criminal Rule 60.02(f) alleging juror misconduct. Willoughby asserted that a
juror, Reverend Walter Garlington, had a Bible with him at all times while serving as a juror,
read the Bible to the jury and lead the jury in prayer every day. In support of this motion,
Willoughby attached an affidavit submitted by an investigator for his co-Defendant,
Halvorsen. That affidavit affirmed that the investigator interviewed Garlington, and he
10

admitted to reading the Bible to the jury and leading the jury in prayer. Willoughby asserted
that Garlington’s conduct constituted a violation of his Sixth Amendment right to an
impartial jury, the First Amendment’s prohibition against the establishment of religion, and
the Eighth Amendment’s prohibition against cruel and unusual punishment. Willoughby
moved the trial court to hold an evidentiary hearing to develop his claim and also sought
leave of court to interview the jurors.
The Commonwealth responded to Willoughby’s CR 60.02 motion on August 2, 2005.
In its response, the Commonwealth argued that Willoughby’s motion was untimely as it was
brought twenty-one years after the final judgment was entered, and eight months after
Willoughby’s counsel learned the results of the investigator’s interview with Reverend
Garlington.

Additionally, the Commonwealth contested Willoughby’s assertion that

Garlington’s alleged conduct amounted to misconduct, and argued there was no evidence
to suggest that the Bible influenced the jury’s decision in any way. To this point, the
Commonwealth contended that the affidavit in support of Willoughby’s motion – an affidavit
of Halvorsen’s investigator – contained inaccurate hearsay testimony that should not be
considered.
On August 3, 2005, the trial court held a hearing on Willoughby’s CR 60.02 motion
and granted the parties additional time to file supplemental briefing. After the supplemental
briefing was filed, the trial court issued its decision on December 5, 2005 denying
Willoughby’s motion. According to the court, Willoughby failed to file his motion within a
reasonable time such that it could not be considered under CR 60.02(f). The court also
held that the motion was without merit as there was no evidence in the record to support
the possibility that the jurors were subject to any outside influence. Even if the jurors chose
11

to pray during their deliberations, the court found that to be no reason to inquire into the
juror’s discussions.
Willoughby appealed the trial court’s denial of his CR 60.02 motion. On August 23,
2007, the Kentucky Supreme Court affirmed the trial court’s decision, finding no abuse of
discretion in ruling that the motions were untimely filed. The Court noted that Willoughby
filed his motion over twenty years after his trial and nearly twenty years after the Court
affirmed his conviction on direct appeal. This delay, the Court held, was “clearly prima facie
evidence to support the trial court’s conclusion that . . . Willoughby’s motion[ ] [was] not, in
fact, filed within a reasonable time.” Willoughby v. Commonwealth, Nos. 2006-SC-000071MR, 2006-SC-000100-MR, 2007 WL 2404461, at * 3 (Ky. Aug. 23, 2007). Because the
Court agreed that the motion was untimely filed, the Court did not consider the merits of the
motion. The Kentucky Supreme Court denied rehearing on August 21, 2008. Id.
C.

Federal court procedural history

On May 23, 2008, Willoughby, by counsel, filed his petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (Doc. # 7). In that petition, Willoughby raised six (6)
claims, including:
Claim 1:

The jury committed misconduct when it considered the Bible during
deliberations

Claim 2:

Petitioner was denied his due process of law and his right to a fair trial when
the trial court gave confusing and misleading instructions of petitioner’s
“defenses” of extreme emotional disturbance and intoxication

Claim 3:

The court below erred to petitioner’s substantial prejudice and denied
petitioner due process of law when it permitted the prosecutor, during the
guilt phase, to make improper and prejudicial comments during closing
argument

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Claim 4:

Repeated emphasis that the jury’s sentence was only a recommendation
denied petitioner a fair trial and sentencing phase

Claim 5:

The repeated misconduct of the prosecutor during his penalty phase closing
argument denied petitioner due process of law and a fair sentencing hearing

Claim 6:

Ineffective assistance of counsel at sentencing phase of the trial

The Commonwealth filed its answer on January 29, 2009. (Doc. # 12). Within the
answer, the Commonwealth moved the Court to dismiss the petition with prejudice or,
alternatively, for summary judgment. Willoughby filed his reply and response to the motion
to dismiss or, alternatively, motion for summary judgment on April 29, 2009. (Doc. # 21).
Once the petition was fully briefed, Willoughby filed a motion to expand the record
to include additional evidence in support of his claim that his counsel was ineffective during
the sentencing phase. (Doc. # 23). At his CR 11.42 hearing, Willoughby primarily relied
on the testimony of Dr. Peter Schilling to support these claims. Once the trial court denied
his CR 11.42 motion, Willoughby attempted to give the trial court additional evidence to
support these claims by submitting records that Dr. Schilling allegedly reviewed in
preparation for his testimony. In the motion to expand the record filed in this Court,
Willoughby sought to include an affidavit from Dr. Peter Schilling, which stated that he
relied on each of the records that were attached to Willoughby’s CR 59.05 motion in
preparation for his testimony. Willoughby also attached the records to Dr. Schilling’s
affidavit.
On July 30, 2009, the Court denied without prejudice Willoughby’s motion to expand
the record as well the Commonwealth’s motion to dismiss the petition. (Doc. # 26). At that
time, the Commonwealth had not filed a complete and accurate copy of Willoughby’s statecourt proceeding in the record. Because a review of the state court record was essential
13

to adjudicating both motions, the Court denied both motions without prejudice, and gave
the parties the option to resubmit their motions once the record was correct and complete.
Once the complete state court record was filed, Willoughby filed a renewed motion
to expand the record. (Doc. # 29). Likewise, the Commonwealth submitted a second
motion to dismiss the petition. (Doc. # 31). On October 5, 2009, Willoughby filed another
motion to expand the record. (Doc. # 35). By that motion, Willoughby sought to include
the results of the juror interviews conducted in 1985 in support of his claim of jury
misconduct.
Ultimately, the Court denied both of Willoughby’s motions to expand the record.
(Docs. # 55, 57). The Court also denied the Commonwealth’s motion to dismiss, finding,
in part, that a motion to dismiss “would place unnecessary pressures on judicial resources
in light of the extensive record which must be reviewed in such cases, present unintended
burdens in light of the requirements of 28 U.S.C. § 476 under the Civil Justice Reform Act,
and is premature until such time as the Court has resolved requests for discovery or for an
evidentiary hearing which commonly occur at the outset of such proceedings.” (Doc. # 55
at 4-5).
II. STANDARD OF REVIEW
Federal courts are vested the authority to grant habeas relief for persons in state
custody pursuant to 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). Section 2254(d) states:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim–

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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d).
AEDPA imposes a “highly deferential standard for evaluating state-court rulings, and
demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559
U.S. 766, 773 (2010)(internal citations omitted). This deferential standard is only required
when the state court has adjudicated the claim on the merits. “[W]hen a claim has not been
adjudicated on the merits in state court proceedings, and has not been procedurally
defaulted, [the court must] look at the claim de novo rather than through the deferential lens
of AEDPA.” Hill v. Mitchell, 400 F.3d 308, 313 (6th Cir. 2005)(internal citations omitted).
The Warden obviously seeks to have the Court apply a broad definition of “adjudicated on
the merits,” while Willoughby attempts to limit the definition, thereby escaping § 2254(d)
review in favor of the more stringent standard of de novo review.
Willoughby posits that a claim has only been adjudicated on the merits if the last state
court to consider it issued a “reasoned” opinion resolving the claim in its entirety, leaving no
element of the applicable legal test unaddressed. Willoughby contends that an opinion is
“reasoned” only when the state court offers some explanation for its decision; more
specifically, explaining how and why it reached a certain conclusion. If the last state court
to address the claim merely adopted a lower court’s decision, or if the court simply stated
that it resolved the claim on its merits without offering any explanation, Willoughby suggests
that the claim has not been adjudicated on the merits for purposes of § 2254(d) review. If
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there is any doubt as to whether the claim, or a portion of the claim, was adjudicated on the
merits by the state court, Willoughby believes the federal habeas court must presume it was
not adjudicated on its merits, and conduct a de novo review.
1.

“Adjudicated on the merits”

The Supreme Court has recently clarified the meaning of “adjudicated on the merits”
under AEDPA, and rejected many of Willoughby’s attempts to limit the meaning of the
phrase. In Harrington v. Richter, the Supreme Court held that, “[w]hen a federal claim has
been presented to a state court and the state court has denied relief, it may be presumed
that the state court adjudicated the claim on the merits in the absence of any indication or
state-law procedural principles.” 131 S.Ct. 770, 784-85 (2011)(emphasis added). This
presumption applies even when the state court summarily rejects all of the claims without
explaining its reasoning, or rejects a claim on one element without analyzing other elements.
Id. at 784. The Harrington Court reached this conclusion based on the statutory language
of § 2254, which requires only an “adjudication” of a “claim,” and not each component of the
claim.

Id.
The Supreme Court recently extended the presumption of adjudication on the merits

to instances where the state court rules against the defendant, and issues an opinion that
addresses some claims but does not expressly address the federal claims. Johnson v.
Williams, 133 S.Ct. 1088 (2013). The Court recognized that state courts do not always
separately address each claim presented in a defendant’s papers, though the state court
did adjudicate each claim on its merits. Id. at 1094. In some instances, state precedent fully
incorporates federal constitutional rights, and the state court may regard its discussion of
state law as sufficient to cover the related federal claim. Id. at 1094-95. In other instances,
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the state court might find that a fleeting reference to a provision of the federal constitution
fails to sufficiently raise a separate federal claim. Id. at 1095. And on other occasions, the
state court might conclude that a federal claim is too insubstantial to merit discussion. Id.
at 1095-96. Although the state court does not offer specific analysis on the federal claim in
each of these scenarios, the Supreme Court instructs that the “federal habeas court must
presume that the federal claim was adjudicated on the merits . . . .” Id. (emphasis added).
The Richter presumption is a “strong one” that may be rebutted by the habeas
petitioner only “in unusual circumstances.” Id. The petitioner must show there is some
other reason to believe the state court failed to specifically address a federal claim. Richter,
131 S.Ct. at 785. In considering whether the petition has satisfied this burden, the Supreme
Court has provided a non-exhaustive list of factors for the federal habeas court to consider:
state-court opinion-writing practices; discussion of state-law precedents and whether they
incorporate federal law; substantiality of the federal claim; citations to federal cases in statecourt opinions (or citations to state cases that contain citations to federal cases); and the
degree of similarity between the federal and state claim. Johnson,133 S.Ct. at 1099-1100
(Scalia, J., dissenting).
2.

Section 2254(d) deference

If a claim has been adjudicated on the merits by the state court, federal habeas relief
may not be granted “unless it is shown that the earlier state court’s decision ‘was contrary
to’ federal law then clearly established in the holdings of [the Supreme Court], § 2254(d)(1);
or that it ‘involved an unreasonable application of such law, § 2254(d)(1); or that it ‘was
based on an unreasonable determination of the facts’ in light of the record before the state
court, § 2254(d)(2).” Richter, 131 S.Ct. at 785 (internal citations omitted).
17

A.

Contrary to clearly established federal law

A state-court decision is “contrary to” clearly established precedent “if it ‘applies a rule
that contradicts the governing law set forth in [Supreme Court] cases’ or if it ‘confronts a set
of facts that are materially indistinguishable from a decision of [the Supreme Court] and
nevertheless arrives at a result different from [Supreme Court] precedent.’” Early v. Packer,
537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). The statecourt decision must be measured against the clear holdings of the Supreme Court, as
opposed to dicta, that existed at the time the state court rendered its decision. Greene v.
Fisher, 132 S. Ct. 38, 44 (2011); Williams, 529 U.S. at 412. Habeas relief is not warranted
if the state-court decision erroneously applies Circuit Court precedent, including decisions
of the Circuit Court that have interpreted Supreme Court precedent. Renico v. Lett, 559
U.S. 766, 778 (2010).
B.

Unreasonable application of clearly established federal law

The “unreasonable application” analysis often overlaps with the “contrary to” analysis.
Williams, 529 U.S. at 385. To the extent they differ, “[a]n ‘unreasonable application’ occurs
when a state court ‘identifies the correct governing legal principle from [the Supreme
Court’s] decision but unreasonably applies that principle to the facts of [the] petitioner’s
case.’” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (quoting Wiggins v. Smith, 539 U.S.
510, 520 (2003)) (emphasis added). “The ‘unreasonable application’ clause requires the
state court decision to be more than incorrect or erroneous.” Lockyer v. Andrade, 538 U.S.
63, 75 (2003). To be entitled to habeas relief, “[t]he state court’s application of clearly
established law must [have been] objectively unreasonable.” Id. The Supreme Court has
also defined the test as “whether it is possible fairminded jurists could disagree that [the
18

state court’s decision is] inconsistent with the holding in a prior decision of th[e] [Supreme
Court].” Harrington, 131 S.Ct. at 786. If fairminded jurists could disagree, habeas relief is
not warranted. Id.
In evaluating a state-court decision under this prong, the federal habeas court must
be mindful of the specificity of the Supreme Court’s rule. Id. “‘The more general the rule,
the more leeway courts have in reaching outcomes in case-by-case determinations.’” Id.
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2011)). Ultimately, the state-court
decision must be granted deference and latitude under this standard. Id.
C.

Unreasonable determination of facts

Under § 2254(d)(2), federal habeas relief is warranted only if the state court made
“an unreasonable determination of facts in light of the evidence presented in the State court
proceeding.” Rice v. Collins, 546 U.S. 333, 338 (2006) (quoting 28 U.S.C. § 2254(d)(2)).
The state court’s factual findings are presumed correct; the habeas petitioner has the
burden of rebutting this presumption by clear and convincing evidence. Id. (citing §
2254(e)). As the statutory language makes clear, the habeas petitioner may only use
evidence presented in the state court to show the factual findings were unreasonable. Id.
at 339.
An unreasonable determination of fact alone by the state court, however, does not
entitle the petitioner to habeas relief. See Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011).
“[The petitioner must [also] show that the resulting state court decision was “based on” that
unreasonable determination” before habeas relief is warranted. Id.
III. AEDPA DOES NOT VIOLATE THE SEPARATION OF POWERS
In an effort to escape the deferential review required by § 2254(d), Willoughby
19

contends that the statute is unconstitutional, though he does not offer any independent
argument in support of his assertion. Instead, he relies exclusively on Judge Reinhardt’s
dissenting opinion from the Ninth Circuit’s decision to deny rehearing en banc in Crater v.
Galaza, 508 F.3d 1261 (9th Cir. 2007). Judge Reinhardt opined that § 2254(d), as AEDPA,
amounts to a severely pervasive congressional incursion on the judicial power, in violation
of the separation of powers doctrine. Id. at 1261. As it is a dissenting opinion, it has no
precedential value in the Ninth Circuit and carries even less weight here.
Neither the Supreme Court nor the Sixth Circuit have addressed the constitutionality
of § 2254(d) as amended by the AEDPA. When other circuits have considered the statute’s
constitutionality, they have uniformly upheld the law. See Bonomelli v. Dinwiddie, 339 F.
App’x 384 (10th Cir. 2010); Evans v. Thompson, 518 F.3d 1 (1st Cir. 2008), cert. denied,
129 S.Ct. 255 (2008); Crater v. Galaza, 491 F.3d 1119 (9th Cir. 2007); Mueller v. Angelone,
181 F.3d 557 (4th Cir. 1999); Green v. French, 143 F.3d 865 (4th Cir. 1998), overruled on
other grounds by Williams v. Taylor, 529 U.S. 362 (2000); Lindh v. Murphy, 96 F.3d 856 (7th
Cir. 1996), rev’d on other grounds, 521 U.S. 320 (1997). But see Davis v. Straub, 430 F.3d
281, 296-98 (6th Cir. 2005) (Merritt, J., dissenting).

Willoughby’s citation to Judge

Reinhardt’s dissent does not persuade this Court to disregard solid agreement among the
circuits.
Judge Reinhardt opined that § 2254(d)(1) infringes on the federal judicial power –
vested wholly and exclusively in the federal courts by Article III of the Constitution – in two
principal ways. Crater, 508 F.3d at 1261. First, federal courts are required to analyze statecourt decisions for conformity with only Supreme Court precedent, which prohibits lower
courts from applying the ordinary principle of stare decisis, “thereby interfering with the
20

federal courts’ normal adjudicatory process.” Id. Second, federal courts are “required to
give effect to incorrect state rulings that, in the federal courts’ judgment, violate the
Constitution.”

Id.

These restrictions, Judge Reinhardt explained, amount to “a

congressional breach of the federal judiciary’s integrity and independence, of its duty to
maintain the supremacy of the Constitution, and, indeed, of the constitutional structure itself
. . . .” Id.
In Bowling v. Parker, 882 F. Supp. 2d 891 (2012), Judge Thapar, United States
District Court Judge for the Eastern District of Kentucky, recently refuted arguments similar
to those made by Judge Reinhardt, and found that § 2254(d)(1) did not violate the
separation of powers. The court began with two important and related basic tenants of our
federal system. First, state courts are capable interpreters of federal constitutional law, and
are bound by the Supremacy Clause to “‘guard and protect rights secured by the
Constitution.’” Id. at 896 (quoting Ex Parte Royall, 117 U.S. 241, 251 (1886)). Second,
lower federal courts derive their entire jurisdiction from statute, not Article III, and Congress
is permitted to “expand or contract lower federal courts’ power to grant habeas relief to state
prisoners as it pleases.” Id. at 897. The court then turned directly to whether § 2254(d) runs
afoul of Article III.
Judge Thapar concluded that § 2254(d) does not violate Article III as it does not
infringe on federal courts’ independent judgment to determine whether a prisoner’s
constitutional rights were violated. Id. at 899. Rather, the statute serves to limit the
information federal habeas courts may consider in exercising independent judgment, as well
as limit the availability of the remedy. Id. More particularly, federal courts remain free to
determine that a prisoner’s right has been violated, however the court may only grant
21

habeas relief in limited circumstances. Id. Each of these limitations are constitutional in
Judge Thapar’s determination. Id.
“[T]he Necessary and Proper Clause of Article I grants Congress the power to ‘make
laws for carrying into execution all judgments which the judicial department has power to
pronounce.’” Id. at 898 (quoting Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 22 (1825)
(Marshall, C.J.)). This clause allows Congress to limit the source of information that courts
may consider in making its independent judgment, and also allows Congress to prescribe
standards of review that courts must follow. Id. That same clause permits Congress to
determine when a remedy is available for a violation of a constitutional right, though
Congress may not dictate how courts interpret federal law nor compel a particular result.
Id. at 899. Based on these considerations, Judge Thapar succinctly concluded that,
[u]nder § 2254(d)(1), federal courts still make independent determinations of
whether a petitioner’s rights were violated, then look to Supreme Court
precedent to decide whether they can grant relief. The statute limits
remedies rather than mandating a rule of decision. As a result, § 2254(d)(1)
does not run afoul of Article III.
Id.
Judge Thapar’s well-reasoned conclusion in Bowling is consistent with all other
circuits to consider the issue. As the Fourth Circuit held in Green v. French,
In amending section 2254(d)(1), Congress has simply adopted a choice of
law rule that prospectively governs classes of habeas cases; it has not
subjected final judgments to revision, nor has it dictated the judiciary's
interpretation of governing law and mandated a particular result in any
pending case. And amended section 2254(d) does not limit any inferior
federal court's independent interpretive authority to determine the meaning
of federal law in any Article III case or controversy. Under the AEDPA, we
are free, if we choose, to decide whether a habeas petitioner's conviction and
sentence violate any constitutional rights. Section 2254(d) only places an
additional restriction upon the scope of the habeas remedy in certain
circumstances. As the Seventh Circuit pointed out in Lindh in great detail,
22

such a limitation upon the scope of a remedy is entirely ordinary and
unexceptionable, even when the remedy is one for constitutional rights. See
Lindh, 96 F.3d at 870-73. Moreover, even if section 2254(d) does limit the
interpretive power of the lower federal courts in some sense, that limitation
is tantamount to other such choice of law limitations which are widely
accepted and have never been thought to raise Article III problems. See
Lindh at 870-73 (discussing non-constitutional contexts-such as res judicata,
Erie, and federal court certification of state law issues-where federal courts
are often bound by another tribunal's interpretation of law).
Green v. French, 143 F.3d 865, 874-75 (4th Cir. 1998) (internal citations omitted), rev’d on
other grounds by Williams v. Taylor, 529 U.S. 362 (2000). This Court agrees with Judge
Thapar and all other circuits to decide the issue. Section 2254(d)(1) does not infringe on
the court’s independent judgment to determine whether a constitutional violation has
occurred, but instead limits the court’s ability to provide a remedy. This limitation does not
breach the judiciary’s independence.

Ultimately, § 2254(d)(1) is constitutional, and

Willoughby’s claims will be reviewed pursuant to the statute where it applies.
IV. ANALYSIS
Claim 1– Juror Misconduct
As his first ground for habeas relief, Willoughby argues that the jury committed
misconduct by considering passages from the Bible during its deliberations, violating his
Sixth and Fourteenth Amendment right to trial by an impartial jury and a verdict based
solely on the evidence presented at trial. The Warden responds that habeas relief is not
warranted on this claim because it is procedurally defaulted, and Willoughby cannot
establish cause and prejudice to excuse the default. The Court agrees; this claim is
procedurally defaulted and Willoughby has not established sufficient cause to excuse the
default.

23

A.

Applicable Law

“‘Under the procedural default doctrine, a federal court is generally barred from
considering an issue of federal law arising from the judgment of a state court if the state
judgment rests on a state-law ground that is both independent of the merits of the federal
claim and an adequate basis for the state court’s decision.’” Stone v. Moore, 644 F.3d 342,
345 (6th Cir. 2011)(quoting Munson v. Kapture, 384 F.3d 310, 313-14 (6th Cir. 2004)). A
federal habeas court can, however, consider the claim on its merits if “the prisoner can
demonstrate cause for the default and actual prejudice as a result of the alleged violation
of federal law, or demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
The Sixth Circuit uses a four-part test to determine whether a claim is procedurally
defaulted:
First, the court must determine that there is a state procedural rule that is
applicable to the petitioner’s claim and that the petitioner failed to comply with
the rule . . . . Second, the court must decide whether the state courts
actually enforced the state procedural sanction . . . . Third, the court must
decide whether the state procedural ground is an adequate and independent
ground on which the state can rely to foreclose review of a federal
constitutional claim . . . . Once the court determines that a state procedural
rule was not complied with and that the rule was an adequate and
independent state ground, then petitioner must demonstrate . . . that there
was cause for him not to follow the procedural rule and that he was actually
prejudiced by the alleged constitutional error.

Stone, 644 F.3d at 346 (quoting Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)). In
making this inquiry, the court is to “look at the last explained state court judgment to
determine whether relief is barred on procedural grounds.” Id. (internal quotations and
citations omitted).

24

B.

This claim is procedurally defaulted

Willoughby conceded in his petition that this claim is procedurally defaulted, and that
he must establish cause and prejudice in order for the Court to consider this claim on its
merits. Having reviewed each of the first three factors, the Court finds that concession to
be appropriate. Willoughby brought this claim in state court pursuant to Civil Rule 60.02(f)
on June 27, 2005. Under that rule, a trial court may amend or correct its prior judgment for
“any other reason of an extraordinary nature justifying relief” so long as the motion is filed
within a “reasonable time” after the judgment was entered. CR 60.02(f). The trial court has
the discretion to determine whether the motion was filed within a reasonable time. Gross
v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983). Here, Willoughby’s CR 60.02 motion
was filed twenty-one years, ten months, and twenty-two days after his judgment was
entered.
The Kentucky Supreme Court held that the trial court did not abuse its discretion in
determining that Willoughby failed to file his CR 60.02 motion within a reasonable time.
Willoughby v. Commonwealth, Nos. 2006-SC-000071-MR, 2006-SC-000100-MR, 2007 WL
2404461, at *1 (Ky. Aug. 23, 2007). The Court explained that Willoughby’s CR 60.02 was
“filed over twenty over twenty years after the trial . . . [and] [t]hat protracted delay is clearly
prima facie evidence to support the trial court’s conclusion that . . . Willoughby’s motion[
] [was] not, in fact, filed within a reasonable time.” Id. at *2.
The Court also rejected Willoughby’s contention that he filed the motion as soon as
he learned of potential impropriety. According to the Court,
It is uncontested that the trial court gave permission for the jurors to be
interviewed in 1985. At that time, many of the jurors refused to be
interviewed; but two jurors were actually interviewed. And Juror Garlington's
25

strong religious views surfaced during the trial, as is plainly evident from the
astonishing fact that the trial court allowed Garlington to lead the courtroom
in prayer at the conclusion of the case. So through due diligence and proper
questioning, Halvorsen and Willoughby could have learned of any alleged
jury misconduct approximately twenty years before they filed their CR 60.02
motion. Indeed, since they had already had an opportunity to speak to at
least two jurors, it appears as if Halvorsen and Willoughby could have, and
should have, included any claims regarding jury misconduct in their RCr
11.42 petitions. Investigator Gentry's affidavit states that his interview with
Juror Garlington occurred before the trial court denied Willoughby's RCr
11.42 petition. So Willoughby presumably could have, at a minimum, sought
leave to amend his RCr 11.42 petition to reflect the jury misconduct
allegations stemming from Gentry's affidavit. Issues that could reasonably
have been made in an RCr 11.42 motion are not cognizable in a CR 60.02
motion filed later in time.
Id. Based on the length of delay in filing his motion, as well as Willoughby’s failure to
discover the issue in a timely fashion, the Kentucky Supreme Court affirmed the trial court’s
decision to deny the requested relief under CR 60.02. Id. at *3.
The Kentucky Supreme Court’s decision to deny Willoughby’s CR 60.02 because
it was untimely filed amounted to an adequate basis for its judgment and was independent
of the federal question. A discretionary state procedural rule, such as the discretion to
determine whether a CR 60.02 motion was filed within a reasonable time, may satisfy the
“adequate” requirement so long as it is “firmly established and regularly followed.” Walker
v. Martin, 131 S.Ct. 1120, 1127-28 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 60
(2009)). As the Kentucky Supreme Court noted in its decision affirming the trial court’s
denial of Willoughby’s CR. 60.02 motion, similar motions filed far sooner than Willoughby’s
are often denied because they were not filed in a reasonable time. Willoughby, 2007 WL
2404461, at *3 (citing Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983) (holding
that trial court did not abuse its discretion in finding that CR 60.02 motion filed five years
after conviction was not filed in reasonable time); Reyna v. Commonwealth, 217 S.W.3d
26

274, 276 (Ky. App. 2007) (holding that CR 60.02 motion filed four years after guilty plea
was not filed in reasonable time)); see also Stoker v. Commonwealth, 289 S.W.3d 592, 597
(Ky. App. 2009) (CR.02 motion filed eighteen years after conviction was not filed in
reasonable time); Commonwealth v. Carneal, 274 S.W.3d 420, 433 (Ky. 2008) (finding no
abuse of discretion in trial court’s decision to deny CR. 60.02 motion as untimely when it
was filed six years after judgment was entered). The state court’s reliance on this
discretionary rule, thus, appears firmly established and regularly followed, such that the
state court’s decision rested on an adequate basis independent of the federal question.
As a result, Willoughby’s claim is procedurally defaulted unless he can establish cause and
prejudice.
C.

Willoughby has not established cause for his procedural default

“[T]he existence of cause for a procedural default must ordinarily turn on whether
the prisoner can show that some objective factor external to the defense impeded counsel’s
efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488
(1986). The prisoner may demonstrate such an objective impediment by showing, among
other things, “that the factual or legal basis for a claim was not reasonably available to
counsel” or “that some interference by officials made compliance impracticable.” Id.
Willoughby asserts he was prevented from developing the merits of this claim because
jurors refused to be interviewed after trial, and those that were interviewed were otherwise
recalcitrant. This argument is unavailing. Willoughby had the opportunity to develop the
merits of this claim much sooner, but failed to do so.
Willoughby asserts that he had no reason to know about Reverend Garlington’s
alleged misconduct until 2003 when Garlington was interviewed by the DPA investigator.
27

However, a review of the trial transcript shows that Willoughby had notice that religion
might have influenced Garlington’s decision. During voir dire, Garlington revealed that he
was formerly a pastor at a Baptist Church. (TE 366). In light of his profession, Garlington
was asked if he had ever debated against the death penalty based on his religious beliefs.
Garlington responded:
The Bible says if you live by the sword you’ll die by the sword. Now the Bible
also says that if a man – no man can take his life but Christ. Now if a man
hasn’t been saved, he’s already committed himself. If a man is saved, then
it doesn’t matter, because he’s with the Lord. Now if a man has done
accepted Christ and he does wrong, he should be judged by the system.
You follow what I’m saying.
(TE 367). Garlington went on to explain:
If he done wrong, then he should pay. As far as the death penalty, that’s him
and the federal government or whatever the case may be; if he’s done wrong
and he’s found guilty and the facts prove it, then I have to vote that man gets
the penalty, whatever it is.
(Id.).
Garlington expressed his religious views in open court for a second time when he
was permitted to lead the court in prayer at the conclusion of trial. Garlington stated:
Let’s all just bow our heads. Just for a moment for truly we all have been
through a trying situation and we can see from our standpoint that justice has
been done, and we want to say to you, we want to say to God that we
appreciate him coming into our midst and guiding us all. We want to thank
God for this.
(TE 2621) (emphasis added). These comments clearly demonstrated Garlington’s views
on the death penalty were driven, in part, by his religious beliefs. They also revealed his
belief that God guided the court, and jury, in bringing justice against Willoughby.
In 1985, the trial court permitted Willoughby to interview the jurors. Eleven of the
jurors were contacted, but nine of the jurors refused to be interviewed; two jurors, Shirley

28

Munro and an unidentified juror, were interviewed. According to Willoughby’s petition, both
jurors were asked general questions about the atmosphere of juror deliberations. Neither
juror indicated that religion played a part in their decision. Willoughby admits, though, that
neither juror was specifically asked about religion, even after all of Garlington’s comments
about religion in open court. By all accounts, it appears that both jurors were honest and
forthcoming based on the questions asked. With proper questioning, Willoughby could
have uncovered potential juror misconduct during those interviews, if juror misconduct
occurred at all. As a result, juror recalcitrance was not the cause of Willoughby’s failure to
discover this issue sooner. Rather, it was his own failure to properly question those jurors
who agreed to be interviewed. This cannot serve as cause to excuse Willoughby’s
defaulted claim.
D.

Willoughby is not entitled to an evidentiary hearing to establish cause

In his petition, Willoughby also requests the Court hold an evidentiary hearing so that
he may establish cause for his procedural default. Willoughby proposes that he would call
Juror Munro and the unidentified juror who were interviewed in 1985 to establish “whether
or not in 1985 [he] had the ability to plead this claim.” (Doc. # 7 at 42). Willoughby’s coDefendant previously moved the Court for an evidentiary hearing on the same grounds,
which was denied. See Halvorsen v. Parker, Civ. A. No. 08-cv-484-DLB, 2012 WL
5866595 (E.D. Ky. Nov. 19, 2012). The Court will deny Willoughby’s informal motion on
the same basis.
Federal habeas courts are permitted to exercise their discretion in considering
whether to hold an evidentiary hearing for a prisoner to establish cause and prejudice to
excuse a procedurally defaulted claim. See Schriro v. Landrigan, 550 U.S. 465, 474
29

(2007). In exercising this discretion, the court may consider whether the state-court record
refutes the prisoner’s factual allegations or otherwise precludes habeas relief. Schriro v.
Id.; see also Rules Governing § 2254 Cases, Rule 8 (“If the petition is not dismissed, the
judge must review the answer, any transcripts and records of state-court proceedings, and
any material submitted under Rule 7 to determine whether an evidentiary hearing is
warranted.”).
Having reviewed the state-court record, Willoughby has failed to specify what new
information could be discovered by questioning these jurors at an evidentiary hearing. See
Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001) (holding that district court did not err
in denying request for evidentiary hearing where prisoner failed to specify what could be
discovered through an evidentiary hearing). Willoughby’s state-court record gives the Court
sufficient notice that he attempted to interview all of the jurors in 1985, and that nine jurors
refused to be interviewed. The record also clearly shows that two jurors agreed to be
interviewed, but did not mention during their interviews that Garlington engaged in any
improprieties during deliberations. Finally, as Willoughby readily admits, he did not
specifically ask the jurors whether religion impacted their decision. Thus, the Court is well
aware that Willoughby failed to discover the alleged juror misconduct during the 1985
interviews for a combination of reasons. Willoughby’s desire to call those two jurors to
testify about facts that are already in the record would not aid the Court in determining
whether sufficient cause has been established. Willoughby’s motion for an evidentiary
hearing is, therefore, denied.
Claim 2 – Jury Instructions
Willoughby argues that the trial court’s instructions on the applicability of the extreme
30

emotional disturbance and intoxication defenses were confusing and misleading, which
deprived him of due process of law. Willoughby presented this challenge to the Kentucky
Supreme Court. The parties, however, disagree about whether the Kentucky Supreme
Court addressed the claim on the merits such that § 2254 deference is warranted here.
This Court need not resolve that issue because Petitioner’s claim lacks merit even if it is
given de novo review.
A.

Instructions on Extreme Emotional Disturbance

Willoughby was charged with three counts of murder for the deaths of Joe Norman,
Joe Durrum and Jacqueline Green. Willoughby’s confession and other evidence presented
at trial clearly indicated that he shot and killed Norman. However, Willoughby’s mental
state at the time he killed Norman was disputed. Therefore, the trial court instructed the
jury on the elements of murder (Instruction No. 22), first degree manslaughter (Instruction
No. 23), second degree manslaughter (Instruction No. 24), and reckless manslaughter
(Instruction No. 24) for the death of Norman. As part of the murder instruction, the court
instructed the jury that they must find Willoughby was not acting under extreme emotional
disturbance (“EED”) when he killed Norman in order to return a guilty verdict for murder.
The jury ultimately found Willoughby guilty of murdering Norman, which necessarily
included the finding that he was not acting under EED.
While the evidence clearly showed that Willoughby shot and killed Norman, it was
not clear whether Willoughby or his co-defendant killed Durrum and Green.

Both

defendants fired shots at the victims, however the evidence was disputed as to whose shot
ultimately caused the victims’ death. As a result, the trial court instructed the jury that they
could find Willoughby guilty of murder as to Durrum and Green under either a principal,
31

accomplice or “combination” instruction. The “combination” instruction stated:
If you believe from the evidence beyond a reasonable doubt that the
defendant Mitchell Willoughby under one or the other of [the principal or
accomplice instructions], but are unable to determine whether he acted as a
principal or accomplice in the murder of Joe Durrum, you will Mitchell
Willoughby guilty under this instruction . . .
(Instruction No. 28).3 The jury ultimately found Willoughby guilty under the “combination”
instruction for the murders of Durrum and Greene.
Neither the accomplice or combination instruction explicitly mentioned that the jury
must find Willoughby was not acting under EED in order to return a guilty verdict.
Willoughby argues that this ambiguity or omission deprived him of the benefit of the EED
defense and, therefore, deprived him of due process of law. The Warden responds that
a later, specific instruction on the applicability of EED adequately instructed the jury on the
defense. Alternatively, the Warden asserts that any error was harmless because the jury
found Willoughby was not acting under EED when it found him guilty of murder as to
Norman. The Court agrees with each of the Warden’s arguments.
When a habeas petitioner challenges jury instructions as ambiguous, as Willoughby
has alleged here, the Court must ask “‘whether the ailing instruction by itself so infected the
entire trial that the resulting conviction violates due process.’” Estelle v. McGuire, 502 U.S.
62, 72 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). It is not enough that
the instruction is “undesirable, erroneous, or even universally condemned. “ Cupp, 414
U.S. at 416. Likewise, “not every ambiguity . . . in a jury instruction rises to the level of a
due process violation.” Middleton v. McNeil, 541 U.S. 433, 437 (2004). Instead, the Court

3

The “combination” instruction (No. 36) as to Count Three – murder of Jacqueline Greene
– is identical to Instruction No. 28, aside from replacing Durrum’s name with Greene’s.
32

must consider “whether there is a reasonable likelihood that the jury has applied the
challenged instruction in a way that violates the Constitution.” Estelle, 502 U.S. at 72
(internal citations and quotations omitted). This, in turn, generally requires a showing that
the guarantees enumerated in the Bill of Rights has been violated by the jury’s verdict.
Dowling v. United States, 493 U.S. 342, 352 (1990).
In making this determination, the Court must not consider any of the instructions in
isolation; rather, each instruction must be reviewed in the context of the overall charge.
Cupp, 414 U.S. at 146; Jones v. United States, 527 U.S. 373, 391 (1999). An instruction
that might appear ambiguous when read in isolation may be cured when read in
conjunction with other instructions. Jones, 527 U.S. at 391; Bryan v. United States, 524
U.S. 184, 199 (1998).
Here, Willoughby asserts that the jury instructions were confusing on the applicability
of the EED defense. A defendant is deprived of his right to due process if he is prevented
from having the jury instructed on a defense so long as the evidence supports the defense.
Taylor v. Withrow, 288 F.3d 846, 852 (6th Cir. 2002). This issue, then, turns on whether
the jury applied the instructions in a way that deprived Willoughby of the right to have his
EED defense considered. When the instructions are considered in full, as they must be,
the jury was adequately advised of the applicability of the EED defense.
Instruction No. 42 specifically addressed the EED defense and cured any
ambiguities that might have otherwise been created. The instruction stated, in part:
And, if you believe from the evidence beyond a reasonable doubt that the
defendant Mitchell Willoughby would be guilty of murder under Instruction 26,
27, or 28 [i.e., the principal, accomplice or combination instruction], except
you have a reasonable doubt as to whether at the time he killed Joe Durrum
(if he did so) he was acting under the influence of extreme emotional
33

disturbance for which there was a reasonable explanation or excuse under
the circumstances as he believed them to be, you shall not find him guilty of
murder, but shall find him guilty of first degree manslaughter under Instruction
No. 29 . . . .
(emphasis added). The instruction was repeated with respect to the murder of Jacqueline
Greene. As this instruction clearly shows, the jury was properly advised that they could
only find Willoughby guilty of first degree manslaughter if they believed he was acting under
EED when he killed or was complicit in the murder of Durrum and Greene. The Court
presumes that the jury followed the instructions in returning a guilty verdict of murder on
Counts 2 and 3. See, e.g., Weeks v. Angelone, 528 U.S. 225, 234 (2000) (“A jury is
presumed to follow its instructions.”). Thus, the jury did not apply the instructions in a way
that deprived Willoughby of his right to have the EED defense considered.
Assuming arguendo that the instructions as they relate to EED did violate
Willoughby’s due process rights – although the Court is certain they did not – the error was
harmless. By finding Willoughby guilty of murdering Joe Norman under Instruction No. 22
– the principal actor instruction – the jury specifically found that Willoughby was not acting
under EED. Durrum and Greene were murdered at the same time Willoughby killed
Norman. Hence, Willoughby’s mental state at the time he killed Norman was the same as
his mental state when he either killed or was complicit in killing Durum and Green.
Therefore, even if the jury was instructed as Willoughby wishes they were, the jury would
have certainly concluded that he was not acting under EED at the time Durrum and Greene
were murdered. Any perceived error in the instructions was, therefore, harmless.
B.

Instructions on intoxication

Willoughby also argues the trial court’s instructions were confusing and misleading

34

on the applicability of the intoxication defense, which deprived him of the opportunity for the
jury to meaningfully consider his defense. Willoughby’s concern is that the jury was never
explicitly told which charges they could find him guilty of even if they found he was
intoxicated. For example, in the murder instructions relying on a principal liability theory,
the jury was told they could not convict Willoughby of murder if they found he was
intoxicated. Willoughby claims the jury should have been instructed, for example, that if
they found him guilty of murder, but also concluded that he killed the victims while
intoxicated, the jury must return a guilty verdict to second-degree manslaughter rather than
intentional murder. To be clear, Willoughby does not assert that the instructions incorrectly
stated Kentucky law; rather, he contends the instructions were confusing or misleading.
Reviewing the instructions in full, as the Court must do, the Court concludes that
Willoughby was not deprived of the opportunity to have the jury consider his intoxication
defense.

The jury was explicitly, and correctly, instructed that they could not find

Willoughby guilty of intentional murder or first-degree manslaughter if they concluded that
Willoughby was intoxicated. See Fields v. Commonwealth, 12 S.W.3d 275, 282-82 (Ky.
2000) (recognizing that voluntary intoxication may negate the mens rea element of
intentional murder and first-degree manslaughter). Because the jury was instructed on
voluntary intoxication as a defense to these offenses, the jury was also appropriately
instructed on second-degree manslaughter as a lesser included offense. See id. (holding
that it is prejudicial error, under Kentucky law, to not instruct the jury on second-degree
manslaughter as a lesser included offense of murder and first-degree manslaughter if the
jury is instructed on the intoxication defense). Consistent with Kentucky law, the principal
liability second-degree manslaughter instructions did not mention intoxication.
35

It is

reasonable to infer that by omitting any reference to the intoxication defense, the jury would
conclude that the defense was not available to that crime.

As such, the jury was

adequately instructed on Willoughby’s intoxication defense. Ultimately, while the jury
instructions might have been undesirable to Willoughby, it is not likely that the jury applied
the instructions in a way that deprived him of the right to have his intoxication defense
considered.4
Claim 3 – Prosecutorial Misconduct During Guilt-Phase Closing Arguments
As his third ground for a writ of habeas corpus, Willoughby contends that the
prosecutor made various improper comments during guilt-phase closing arguments,

4

The Kentucky Supreme Court considered this same argument when it was raised by
Willoughby’s co-defendant, Leif Halvorsen, on direct appeal. The Kentucky Supreme Court held
as follows:
Halvorsen also complains that while the court properly included his defense of
intoxication in those instructions under which he was entitled to such a defense, he
was denied the benefit of the defense by the failure of the court to specifically refer
the jury to the offenses which it could convict him of if it found him to have been
intoxicated.
The instructions under which the intoxication defense was available were clearly set
out by language spelling out the elements of the defense. It is a reasonable
inference that the instructions which excluded such specific language also excluded
the defense. As such, the jury was free to convict Halvorsen under these
instructions had it been so inclined to accept his intoxication defense, and no
additional Instructions were necessary to impress the jury that these offenses were
alternatively available had it accepted Halvorsen's intoxication claim. There is no
merit to these assertions of error.
Halvorsen v. Commonwealth, 730 S.W.2d 921, 926 (Ky. 1986).
The Warden argues that the Supreme Court also decided this issue as to Willoughby, and
this Court must therefore review the Kentucky Supreme Court’s decision under § 2254. It is unclear
whether the Supreme Court decided this issue as to Willoughby, thereby triggering § 2254
deference. Nonetheless, the Court finds that the Kentucky Supreme Court appropriately applied
federal law, even upon de novo review.

36

causing substantial prejudice and deprived him of a fair trial. First, Willoughby argues that
the prosecutor improperly discussed the robbery charges even though they had already
been dismissed by directed verdict. Second, Willoughby asserts that the prosecutor
alluded to other, uncharged crimes committed by Willoughby. Third, Willoughby contends
the prosecutor created the perception that other incriminating evidence existed, but was
not allowed to be presented to the jury. Finally, Willoughby argues the prosecutor gave
unsworn expert testimony during his argument.
A.

State Court Decision

Willoughby presented this claim to the Kentucky Supreme Court on his direct appeal.
The Kentucky Supreme Court did not offer a specific analysis of this claim in its opinion
affirming Willoughby’s conviction. Instead, the court summarily denied the claim on its
merits, stating: “We have reviewed the other assertions of error and are of the opinion none
of them merits comment.” Halvorsen v. Commonwealth, 730 S.W.2d 921, 928 (Ky. 1986).
Pursuant to the United States Supreme Court’s recent decisions in Johnson v. Williams,
133 S.Ct. 1088 (2013), the Court presumes that this claim has been adjudicated on the
merits. In fact, this claim appears to be the type the Johnson Court described as “too
insubstantial to merit discussion” by the state court. See id. at 1095 (“[T]here are instances
in which a state court may simply regard a claim as too insubstantial to merit discussion.”).
Despite the Kentucky Supreme Court’s decision to forego discussing its decision, because
the prosecutorial misconduct claim was presented and summarily denied, this Court is
required to give a strong, but rebuttable, presumption that the claim has been adjudicated
on the merits.

37

Having reviewed the entirety of the Kentucky Supreme Court’s decision on
Willoughby’s direct appeal, the presumption of adjudication on the merits is appropriate for
this claim. In addressing Willoughby’s separate prosecutorial misconduct claim during the
sentencing phase, the Kentucky Supreme Court held that there was overwhelming
evidence against Willoughby and his co-defendant, including their own admissions.
Halvorsen, 730 S.W.2d at 925. As the Sixth Circuit has held, “[o]verwhelming evidence of
guilt can oftentimes be sufficient to sustain a conviction despite some prosecutorial
misconduct . . . .” Bates v. Bell, 402 F.3d 635, 648-49 (Ky. 2005). It appears that the
Kentucky Supreme Court’s finding of overwhelming evidence of guilt supported its
conclusion that the prosecutorial-misconduct-during-guilt-phase claim was entirely devoid
of merit and, therefore, did not deserve comment. In short, there is nothing to suggest the
Kentucky Supreme Court simply overlooked Willoughby’s claim; it was adjudicated on the
merits and is entitled to deferential review under § 2254(d).
B.

Applicable Law

In order to prevail on habeas review, Willoughby must establish that the prosecutor’s
comments deprived him of due process of law. Darden v. Wainwright, 477 U.S. 168, 181
(1986). “The relevant question is whether the prosecutor’s comments ‘so infected the trial
with unfairness as to make the resulting conviction a denial of due process.’” Id. (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 546 (1974)). “In making this determination, [the
Court] must bear in mind that ‘the touchstone of the due process analysis . . . is the fairness
of the trial, not the culpability of the prosecutor.’” Byrd v. Collins, 209 F.3d 486, 529 (6th Cir.
2000) (quoting Serra v. Michigan Dep’t of Corrections, 4 F.3d 1348, 1355 (6th Cir. 1993)).
Remarks that “were undesirable or even universally condemned,” Darden, 477 U.S. at 181,
38

do not rise to a due process violation unless “‘the conduct was so egregious so as to render
the entire trial fundamentally unfair.’” Byrd, 209 F.3d at 529 (quoting Pritchett v. Pitcher,
117 F.3d 959, 964 (6th Cir.), cert. denied, 522 U.S. 1001 (1997)).

Ultimately, the

prosecutorial misconduct must be of “extreme nature” for a federal court to issue a writ.
Id.
This due process analysis is guided by a two-part test. Moore v. Mitchell, 708 F.3d
760, 799 (6th Cir. 2013). The Court first considers whether the comments were improper.
Id. If they were, the Court considers four factors to determine whether the comments were
flagrant: “(1) the likelihood that the remarks of the prosecutor tended to mislead the jury or
prejudice the petitioner, (2) whether the remarks were isolated or extensive, (3) whether
the remarks were deliberately or accidentally made, and (4) the total strength of the
evidence against the defendant.” Id. (quoting Bates v. Bell, 402 F.3d 635, 641 (6th Cir.
2005)). Additionally, because the Kentucky Supreme Court adjudicated this claim on its
merits, the Court must give deference to the state court’s decision. Id.; Millender v. Adams,
376 F.3d 520, 528 (6th Cir. 2005) (“Claims of prosecutorial misconduct are reviewed
deferentially on habeas review.”).
C.

Comment on Robbery Charges

Although the trial court dismissed the robbery charges against Willoughby at the
conclusion of the Commonwealth’s case-in-chief, the prosecutor discussed the robbery
charges and evidence in support thereof during his closing argument. Willoughby argues
that this discussion was improper and flagrant, and deprived him of a fair trial. Although
the prosecutor’s comments might be improper when considered in isolation, the comments
were not improper when reviewed within the context of the trial as a whole. See United
39

States v. Beverly, 369 F.3d 516, 543 (6th Cir. 2004) (“In examining prosecutorial
misconduct, it is necessary to examine the statements at issue within the context of the
entire record.”).
Along with three murder charges, Willoughby and his co-defendant were originally
charged with two counts of robbery in the first degree. At trial, the Commonwealth
principally relied on the testimony of Hutchens – who pled guilty to two counts of hindering
prosecution prior to trial – to support the robbery charge. Hutchens testified that she was
sitting in the livingroom talking with Jackie Greene when the shooting started. (TR 1745).
Hutchens covered her eyes until the shooting stopped. (Id.). When she uncovered her
eyes, she saw Jackie Greene and Joe Durrum lying on the ground. (TR 1746). Hutchens
stood, walked toward Jackie Greene and stood over her as Greene began to moan. (Id.).
Hutchens said, “Jackie’s crying,” prompting Willoughby to walk toward Greene and shoot
her twice more. When the shooting ceased, Hutchens went through Greene’s purse and
took her wallet, and stole some jewelry from a jewelry box inside the house. Hutchens also
searched Durrum’s pockets and took something out, although she was unable to recall
what she took.
At the conclusion of the Commonwealth’s case-in-chief, Willoughby and his codefendant moved for a directed verdict on the robbery charge. They argued, inter alia, that
the Commonwealth’s proof established that Hutchens took the property after the victims
were deceased. Under Kentucky law, they asserted, one cannot be guilty of robbery in the
first degree for taking property from a corpse. The trial court agreed and dismissed the
robbery charges.

40

Counsel for Willoughby’s co-defendant brought up the robbery charge during his
closing argument, stating as follows:
Well now when we started this case, there were six charges presented to you
that were going to be proven beyond all doubt. Ladies and gentlemen, you
heard the Judge say that he’d dismissed two of those charged, because
there just wasn’t evidence to substantiate it. They’re gone. They not only
cannot be proven to you beyond all doubt, they didn’t even meet the first
standard. Does that, therefore, mean you need to ask a question about the
rest of the charges?
(TR 2239-40) (emphasis added).
During its closing argument, the Commonwealth responded to counsel’s rhetorical
question that the jury must doubt the integrity of the entire case.

Specifically, the

prosecutor stated:
Since Mr. Maloney brought it up, I want to mention about the robbery
charge, which is no longer before you, because he implied to you or
suggested to you that because I said that we would prove this robbery
beyond any doubt and that isn’t before you, that somehow you’ve got to
question this entire case. Well ladies and gentlemen, I told you that the case
would be proven to you because it would be shown that the defendants took
the personal property of the victims and they did, and when I say they I – I
include these defendants and I include Susan Hutchens, who’s a defendant
in this case, although not here today, and they did take it.
Well, in some of these legal things that go on in the court – in the court
proceeding, the Judge decides – decided that that is not robbery, because
it wasn’t proven that that happed before they were killed as opposed to after
they were killed. We may have a difference of opinion, but that’s not the
point. The point is that it was proven to you the facts. It was proven to you
that they took the property and that was proven to you beyond all doubt.
Now if there is a discrepancy about the law of robbery, it really isn’t relevant
to whether or not this case of murder is proven to you beyond any doubt.
(TR 2256-57).
When considered in context, the prosecutor’s statements were not improper. “The
prosecution necessarily has ‘wide latitude’ during closing argument to respond to the

41

defense’s strategies, evidence and argument.” Bedford v. Collins, 567 F.3d 225, 233 (6th
Cir. 2009) (quoting United States v. Henry, 545 F.3d 367, 377 (6th Cir. 2008)). “How far
the government may go . . . depends on what the defense has said or done . . . .” Id.
(internal citations omitted); see also United States v. Beverly, 369 F.3d 516, 543-44 (6th
Cir. 2002). Here, the prosecutor’s comments were clearly in direct response to defense
counsel’s assertion that the jury must doubt the Commonwealth’s entire case because the
robbery charges were dismissed. The prosecutor explained that it set forth proof to
establish some, but not all of the elements of robbery as determined by the trial court – an
accurate statement. More importantly, the prosecutor clarified that whether the defendants
were guilty of robbery was entirely irrelevant to whether they were guilty of murder –
another accurate statement. These comments went no further than necessary to respond
to defense counsel’s closing argument; these comments were, therefore, not improper.
The prosecutor’s discussion of the robbery charge was also not flagrant even if it
were determined to be improper. It is nearly impossible that these comments misled or
confused the jury. If anything, the prosecutor’s comments actually clarified for the jury that
the robbery and murder charges were factually and legally distinct. The comments were
isolated to the Commonwealth’s closing argument and limited in scope.

And they

undoubtedly had little impact on the jury’s verdict given the strength of the evidence, which
included eye-witness testimony that Willoughby shot Jackie Greene, as well as
Willoughby’s own admission that he shot Joe Durrum. As such, the Kentucky Supreme
Court did not unreasonably apply clearly established federal law in concluding that these
comments did not deprive Willoughby of a fair trial.

42

D.

Other Crimes

Willoughby also argues that the prosecutor improperly discussed two crimes
unrelated to those charged in the indictment during closing argument, depriving him of a
fair trial. Willoughby challenges two statements in particular. First, near the outset of his
closing argument, the prosecutor discussed Willoughby’s intoxication defense, including
Willoughby’s own admission that he used drugs extensively in the days preceding the
murders. The prosecutor stated, “You can’t even [use drugs] legally. To what extent did
they have to go to come up with drugs to do it?” Willoughby argues that this rhetorical
question was an attempt to have the jury conclude that he was “out committing unspecified
crimes in order to have a defense” to the murders which he had yet to commit. (Doc. # 7
at 51).
Second, Willoughby challenges the prosecutor’s comments about a weapon seized
from Willoughby’s person the day he was arrested. The prosecutor stated:
Mitchell Willoughby when he’s arrested the next day with this 9 millimeter,
with these nicely cleaned notches in the butt of his gun and ask yourself what
kind of person has a gun with notches on it.
In his habeas petition, Willoughby points out that four notches were etched into the gun,
yet he was standing trial for three murders. Willoughby asserts that prosecutor’s emphasis
on the notches improperly suggested that he had committed a fourth murder.5 Each
comment will be addressed in turn.
The prosecutor’s discussion of Willoughby’s drug use was not improper; rather, it
was fair comment on Willoughby’s testimony. In support of his defense of intoxication,

5

After Willoughby’s trial in Fayette Circuit Court, he pled guilty to one count of murder in
Estill County, Kentucky.
43

Willoughby testified extensively about his drug and alcohol use. Specifically, he testified
that he used Demerol, Morphine, Meperidine, Dilaudids, cocaine, Percodan, Tuinal, acid,
marijuana, Tuissionex, LSD and other drugs during the month prior to the murders.
Willoughby also testified that he purchased or received drugs from Joe Norman and Leif
Halvorsen, as well as other “dope dealers.” (TE 1922). In fact, Willoughby testified that he
carried a gun with him because some of the dealers were “pretty shady characters.” (Id.).
During his closing argument, Willoughby’s counsel asked the jury to consider his
intoxicated state at the time of the murders. Counsel listed many of the drugs Willoughby
admitted to using, and explained that Willoughby increased his drug usage about a week
before the murders. Counsel also suggested to the jury that at the time of the murders,
“Mitchell was not a normal person. He was a zombie. The Mitchell Willoughby you see
today is not the Mitchell Willoughby then. He’s dried out. The drugs and alcohol have left
his system. It’s the old Jekyll and Hyde.” (TE 2225).
The prosecutor’s comments were fair comment on Willoughby’s testimony and trial
strategy. See Bedford, 567 F.3d at 233 (holding that prosecution is allowed to respond to
defense’s strategies and evidence). The prosecutor’s statement that “[y]ou can’t even [use
drugs] legally” was a proper comment on Willoughby own admission that he took
significant amount of illegal drugs, including cocaine, LSD and acid.

Likewise, the

prosecutor’s rhetorical question – “To what extent did they have to go to come up with
drugs to do it?” – asked the jury to consider Willoughby’s testimony about how he acquired
drugs, which included bartering with people like Joe Durrum and purchasing from “shady”
“dope dealers.” Because these comments were directly supported by Willoughby’s own
admission that he engaged in unlawful activity to support his drug habit, the comments
44

were not improper.
The prosecutor’s comment on the murder weapon also does not entitle Willoughby
to habeas relief. Willoughby contends that the prosecutor’s comment improperly suggested
he killed a fourth person. However, the prosecutor never mentioned the number of notches
on the gun, nor was there testimony or argument that the number of notches was
commensurate with a particular number of murders. Moreover, the Commonwealth was
careful to never mention that Willoughby was being investigated for a fourth murder. Under
these circumstances, the prosecutor’s passing mention of the notches on the murder
weapon could not have misled the jury to believe Willoughby committed a fourth murder,
nor, given the strength of evidence against Willoughby, is there anything to suggest that
but for these comments, the outcome of the trial would have been different. See Pritchett
v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (“This court must decide whether the
prosecutor’s statements likely had a bearing on the outcome of the trial in light of the
strength of the competent proof of guilt.”).
E.

Trial by Innuendo

Willoughby argues that the prosecutor implied to the jury during closing argument
that they were prevented from hearing other available incriminating evidence during trial.
Relying on the Kentucky Supreme Court’s decision in Moore v. Commonwealth, 634
S.W.2d 426, 438 (Ky. 1982), Willoughby contends that these comments were improper and
violated his right to a fair trial because they had the effect of trying him by innuendo.
However, Willoughby’s argument entirely ignores the context of the prosecutor’s
arguments.

When the challenged comments are considered in the context of the

prosecutor’s entire closing argument, it is obvious that the prosecutor did not suggest there
45

was other incriminating evidence available to the Commonwealth that they were prevented
from presenting. See United States v. Wells, 623 F.3d 332, 338 (6th Cir. 2010) (holding
that prosecutor’s comments must be considered in proper context to determine whether
they were likely to mislead the jury).
Willoughby challenges two particular comments made by the prosecutor. First,
Willoughby challenges the prosecutor’s statement that, “[w]e gave you all the proof that
there was, all the proof that is that we could – that we could give to you.” However, this
statement was made at the end of the prosecutor’s attempt to explain why the
Commonwealth presented evidence that might have appeared irrelevant prior to Willoughby
taking the stand in his own defense and admitting to many facts at issue. The prosecutor
stated:
We put on a lot of proof in this case, a lot of it which now Mr. Jarrell can call
window dressing, because it may not seem necessary in light of the fact that
Mitchell Willoughby has now testified and given us some additional insight
into what went on. But we didn’t rely on that happening; We didn’t figure he
was going to do that; We didn’t know what he was going to say. So we gave
you all the proof that there was, all the proof that is that we could – that we
could give to you.
(TE 2254). As the prosecutor’s own words make clear, there was no suggestion that there
was other incriminating evidence that the jury did not hear. Rather, the prosecutor
explained why the jury heard additional incriminating evidence from the defendant, and why
the Commonwealth did not present that evidence during its case-in-chief. This statement
could not have misled the jury to believe there was other incriminating evidence it did not
get to hear; therefore, this statement did not deprive Willoughby of a fair trial.
Willoughby also challenges the prosecutor’s discussion of the testimony of Detective
Robert Stephens, who recounted two out-of-court statements made by Willoughby. After
46

his arrest, Willoughby made two statements to Detective Stephens that contained repeated
references to his co-defendant, Leif Halvorsen. During trial, the Detective was permitted
to testify about Willoughby’s statements under Kentucky Rule of Evidence 801A because
they were being offered as statements against a party opponent and, thus, not hearsay.
However, pursuant to Bruton v. United States, 391 U.S. 123 (1968), the Detective was not
allowed to testify about any portions of Willoughby’s statements that referred to his codefendant so as not to violate Halvorsen’s rights under the Confrontation Clause.
Unbeknownst to the Commonwealth during its case-in-chief, Willoughby decided to
testify during his own case. During the Commonwealth’s cross examination, the prosecutor
asked Willoughby about the statements he made to Detective Stephens. Then, during
Halvorsen’s cross examination of Willoughby, his counsel also questioned Willoughby
about the statements. Pursuant to Bruton, once Halvorsen’s counsel had the opportunity
to cross-examine Willoughby on his statements, the entire statements were permitted to
be introduced into evidence, including any portion that incriminated Halvorsen. See Nelson
v. O’Neil, 402 U.S. 622, 626 (1971) (“It was clear in Bruton that the ‘confrontation’
guaranteed by the Sixth and Fourteenth Amendments is confrontation at trial – that is, that
the absence of the defendant at the time the codefendant allegedly made the out-of-court
statement is immaterial, so long as the declarant can be cross-examined on the witness
stand at trial.”).
During the Commonwealth’s closing argument, the prosecutor attempted to explain
to the jury why only portions of Willoughby’s statements were introduced during its case-inchief, and why the remaining portions were introduced at a later time. Specifically, the
prosecutor stated:
47

Well let’s look back at Saturday, the 15th. You have heard large portions of
the audio of those statements and before I move on, I want to mention one
thing. You might have wondered why when Detective Stephens testified
about the statements Mitchell Willoughby made to him, he left out of those
statements all references to Leif Halvorsen. And then later when you heard
portions of those statements played, it was clear that the defendant was
referring to Leif Halvorsen being with him at Loudon Avenue. It simply is a
legal point, ladies and gentlemen, is that up until a point that a defendant
testifies and can be cross-examined by the co-defendant’s attorney, Mr.
Maloney, we can’t introduce statements that Mitchell Willoughby said which
might have involved Leif Halvorsen. It wouldn’t be fair to Leif Halvorsen,
because we couldn’t cross-examine the maker of the statement until Mitchell
Willoughby testified and then he could, and that — at that point it became
reasonable to bring in all of those statements of Mitchell Willoughby. So
that’s a little legal point which I’m sure you didn’t–weren’t aware of; nobody
was until about ten years ago, including the Supreme Court of the United
States.
(TE 2274). Willoughby contends that this statement somehow suggested that there was
additional incriminating evidence that was withheld from the jury.
Contrary to Willoughby’s contention, the prosecutor never suggested that there was
additional evidence the jury did not get to hear. Instead, the prosecutor plainly explained
to the jury why they did not hear the entire statements during the Commonwealth’s case-inchief, but had to wait until after Willoughby testified. Willoughby’s argument asks the Court
to read some prejudicial ambiguity into a statement that is plain and clear on its face. Even
if there were two plausible interpretations of the prosecutor’s statement, the Sixth Circuit
instructs courts to “not strive to adopt the one which casts doubt upon the prosecutor’s
intentions.” Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982). Where a statement is
clear, as is the one at issue here, the Court will certainly not create an ambiguity that does
not exist. In the end, the prosecutor never suggested to the jury that it was prevented from
hearing available incriminating evidence. Thus, this sub-claim is entirely devoid of merit.

48

F.

Unsworn Expert Testimony by Prosecutor

Willoughby’s final guilt-phase prosecutorial misconduct claim centers on the
prosecutor’s discussion of the order in which the gun-shot wounds were inflicted.
Willoughby contends that there was no testimony about the order of the wounds, and none
of the Commonwealth’s witnesses, including a forensic pathologist and a ballistic expert,
were able to testify on this issue. As such, Willoughby argues that the prosecutor’s
arguments were not supported by record evidence and amounted to unsworn expert
testimony.
During closing argument, counsel is permitted to discuss the evidence of record and
is given considerable leeway to draw “reasonable inferences” therefrom. United States v.
Collins, 78 F.3d 1021, 1040 (6th Cir. 1996). It is improper, however, for the prosecutor to
“bring to the attention of the jury any ‘purported facts that are not in evidence and are
prejudicial.’” Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000) (quoting United States v.
Wiedyk, 71 F.3d 602, 610 (6th Cir. 1995)). Here, there was no direct testimony about the
order in which the wounds were inflicted. Instead, the prosecutor made clear that he was
speculating about the order the shots were fired based on a compilation of Susan
Hutchens’ eyewitness testimony as well as testimony of the forensic pathologist, Dr.
Nichols. More particularly, Hutchens testified as to where each of the defendants and
witnesses were located before shots were fired. And Dr. Nichols testified about the location
of each entrance and exit wound, which included the likely trajectory of the bullet.
Additionally, Dr. Nichols testified as to which shots would have been lethal, which injuries
were sustained pre and post-mortem, and how much time would have elapsed between
each lethal injury and death. From a combination of this testimony, the prosecutor drew
49

reasonable inferences about the order the shots were fired.
Even if the prosecutor’s comments were not based on reasonable inferences drawn
from the evidence, Willoughby has not shown that these comments caused any undue
prejudice. The jury found Willoughby guilty of murdering Joe Norman under a principal
liability theory. That conclusion was supported by testimony that Norman sustained three
gunshot wounds from 9 millimeter bullets that were recovered from his body. The evidence
also indicated that Willoughby was the only person to fire a 9 millimeter handgun,
establishing that Willoughby must have shot and killed Joe Norman. Given the strength of
this proof, the prosecutor’s comments on the order in which Norman sustained each
gunshot wound had little impact on the jury’s finding.
Similarly, the order in which Durrum and Greene sustained each gunshot wound had
no bearing on the jury’s determination of Willoughby’s guilt. Willoughby was found guilty
of murdering each of these victims under the “combination” instruction, which instructed the
jury to find Willoughby guilty if they believed beyond a reasonable doubt that he acted
either as the principal or accomplice, but were unable to determine the role in which he
acted. The evidence clearly established that both Willoughby and Halvorsen fired shots
at the victims, and that one or more of those shots were fatal. However, it was not as clear
as to who fired the fatal shot at each victim. The evidence established beyond a reasonable
doubt that Willoughby was guilty under this instruction – one of the defendants was the
principal, and the other was necessarily the accomplice. Because the identity of the
principal and accomplice was not necessary under this instruction, the order the shots were
fired was also irrelevant and could not have had an impact on the jury’s determination.
Accordingly, the prosecutor’s comments on the order the wounds were inflicted were not
50

improper, nor did they deprive Willoughby of a fair trial.
G.

Conclusion

Even when considered collectively, the prosecutor’s comments during guilt-phase
closing arguments did not deprive Willoughby of due process. As already explained, the
statements properly discussed the record evidence, arguments of defense counsel, or
rulings of the trial court. The comments did not mislead the jury, nor did they impact the
jury’s verdict, particularly given the strength of the evidence against Willoughby.
Accordingly, the Kentucky Supreme Court’s denial of this claim was not “contrary to” nor
an “unreasonable application” of clearly established federal law as determined by the
Supreme Court of the United States.
Claim 4 – Caldwell Violation
Willoughby asserts that his Eighth and Fourteenth Amendment rights were violated
because the jury was impermissibly and repeatedly informed during voir dire, closing
arguments, and in the penalty-phase instructions that their determination on the death
sentence was only a recommendation. More to the point, Willoughby contends that he was
denied a fair trial and sentencing because the jury was improperly led to believe that an
ultimate determination on the appropriateness of the death sentence rested elsewhere.
This, Willoughby argues, is a clear violation of Caldwell v. Mississippi, 472 U.S. 320 (1985).
During voir dire, the prosecutor specifically asked eight of the twelve jurors if they
understood that during the penalty phase they would be required to recommend to the
court whether the death penalty should be imposed. For example, the prosecutor asked
one juror whether she understood that “the jury recommends the imposition of the death
penalty to the judge who then will determine whether or not it’s going to be imposed.” (TE
51

278). Each of the eight jurors confirmed that they understood the prosecutor’s qualification.
In fact, one juror responded that she could “recommend the life sentence if the evidence
leaned to that,” and that she “would be able to recommend any of those three [sentencing
options – number of years, life sentence, or the death penalty] depending on what, you
know, was presented to [her].” (TE 910).
During penalty-phase closing arguments, the prosecutor again reminded the jury that
their sentencing determination was a recommendation to the court.
In these instructions it’s very clear that your recommendation, your verdict,
is a recommendation to [the trial court judge] in this case. You don’t set the
sentence in this case; you recommend it.
(TE 2537). According to Willoughby, the prosecutor went on to use the word “recommend”
twenty times in his closing arguments.
The trial court also instructed the jury that they may “recommend” a particular
sentence as to each count. For example, in Instruction No. 59, the trial court instructed as
follows:
For the murder of Joe Norman you may recommend that the defendant,
Mitchell Willoughby, be sentenced to (a) confinement in the penitentiary for
a term of not less than 20 years; (b) to confinement in the penitentiary for life;
or (c) to death, in your discretion, but you cannot recommend that he be
sentenced to death unless you are satisfied from the evidence beyond a
reasonable doubt that the statement listed as an Aggravating Circumstance
in Instruction No. 60 exists, in which event you must designate in writing,
signed by the Foreman, that you found the aggravating circumstance to exist
beyond a reasonable doubt.
...
You shall not recommend the death penalty unless you believe the weight of
the aggravating circumstances, if any, exceeds the weight of the mitigating
circumstances, if any.
...
(TE 18 2512-13).

52

A.

State Court Decision

Although Willoughby never objected to the prosecutor or court’s use of “recommend”
during the trial, he did present this Eighth and Fourteenth Amendment claim to the
Kentucky Supreme Court on his direct appeal. The Kentucky Supreme Court analyzed the
prosecutor’s statements during voir dire and closing argument in great detail under Caldwell
v. Mississippi, 472 U.S. 320 (1985), holding that the prosecutor’s reference to the jury’s
sentencing determination as a “recommendation” was not reversible error because the
statements did not diminish the jury’s sense of responsibility. Halvorsen, 730 S.W.2d at
923-24. The Supreme Court also addressed the trial court’s use of “recommend” in the
penalty-phase instructions, albeit in much less detail, stating:
We note that no objections were made to any of the question on voir dire for
the very good reason there was nothing to object to. This drum beat of
complaint about the use of “recommend,” which is in the statute and
necessarily the instructions, seems to arise in every case. We suggest that
the trial court or prosecutor, or both, emphasize to the jurors that the use of
the term “recommendation” in a death penalty case does not, in any fashion,
diminish or lessen the responsibility of the jury in imposing the death penalty.
Id. at 925 (emphasis added). Because these claims were addressed on their merits, they
are entitled to deferential review under § 2254(d).
As Willoughby points out, though, the Kentucky Supreme Court did not specifically
discuss his Fourteenth Amendment challenge to the repeated use of “recommend.”
Willoughby argues this claim must be reviewed de novo as a result. However, pursuant
to Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770 (2011) and Johnson v. Williams, –
U.S. –, 133 S.Ct. 1088, 1094 (2013), the Kentucky Supreme Court is presumed to have
also adjudicated this claim on its merits because it was presented on direct appeal and the
Kentucky Supreme Court denied relief.
53

The presumption of adjudication on the merits is particularly appropriate here. The
United States Supreme Court recognized that “a state court may not regard a fleeting
reference to a provision of the Federal Constitution . . . as sufficient to raise a separate
federal claim.” Johnson, 133 S.Ct. at 1095. The state court may choose not to expressly
address the claim, yet the decision is still presumed to be an adjudication on the merits.
Id. That appears to be the case here. Willoughby challenged repeated references to the
jury’s sentencing determination as a “recommendation” in a four-page argument to the
Kentucky Supreme Court. The Fourteenth Amendment was mentioned in a single line at
the very end of the argument. This is the type of fleeting argument the United States
Supreme Court recognizes that lower courts may choose not to specifically address.
However, the ultimate rejection of the claim is still presumed to be an adjudication on the
merits that is entitled to deferential review under § 2254(d).
Willoughby opposes this conclusion in his habeas petition and argues that the entire
claim must be reviewed de novo. Even if Willoughby were correct, though the Court is sure
he is not, Willoughby’s attempt to escape review under § 2254 is futile because this claim
is entirely without merit, even if it were reviewed de novo.
B.

Applicable Law

Willoughby principally asserts that the repeated qualification of the jury’s sentencing
determination as a “recommendation” amounted to a Caldwell violation. In Caldwell v.
Mississippi, the prosecutor argued to the jury that if it imposed the death penalty, that
decision would not be final, but would instead be automatically reviewed by the Mississippi
Supreme Court. 472 U.S. at 325. The Supreme Court held this argument violated the
defendant’s Eighth Amendment rights because it minimized the jury’s sense of the “truly
54

awesome responsibility” for determining the appropriateness of death and, therefore,
tainted the reliability of the jury’s determination. Id. at 341. The Court also found the
argument to be entirely inaccurate, “both because it was misleading as the nature of the
appellate court’s review and because it depicted the jury’s role in a way fundamentally at
odds with the role that a capital sentencer must perform.” Id. at 336. According to the
Court, “it is constitutionally impermissible to rest a death sentence on a determination made
by a sentencer who has been led to believe that the responsibility for determining the
appropriateness of the defendant’s death rests elsewhere.” Id. at 328-29.
The Supreme Court later clarified the scope of a Caldwell violation. In Dugger v.
Adams, the Court stated, “[t]o establish a Caldwell violation, a defendant necessarily must
show that the remarks to the jury improperly described the role assigned to the jury by local
law.” 489 U.S. 401, 407 (1989). However, “if the challenged instructions [or arguments]
accurately described the role of the jury under state law, there is no basis for a Caldwell
claim.” Id.
In Kordenbrock v. Scroggy, the Sixth Circuit sitting en banc applied Caldwell and
Dugger to a claim that is remarkably similar to Willoughby’s claim here. 919 F.2d 1091,
1101 (6th Cir. 1990). Like Willoughby, the petitioner in Kordenbrock challenged his
Kentucky murder conviction and death sentence. During voir dire at Kordenbrock’s trial the
prosecutor told jurors that their “recommendation of death, if you gave one as a juror, with
your fellow jurors, would not be binding upon the court, but that the court would give it great
weight.” Id. The prosecutor later characterized the jury’s sentence as “a recommendation,
that is all.” Id. The trial court also instructed the jury that their sentencing determination
was a recommendation.
55

The Kordenbrock Court held that the prosecutor’s comments and the court’s jury
instructions did not amount to a Caldwell violation. Id. Citing the Supreme Court’s
clarification of a Caldwell violation announced in Dugger, the Kordenbrock Court stated that
“Kordenbrock must show . . . [the comments] improperly described the jury’s role under
state law in order to water down their responsibility.” Id. Kordenbrock failed to meet this
burden because the comments were technically consistent with Kentucky law. Id. In
Kentucky, the jury considers whether any mitigating or aggravating circumstances exist,
and then recommends a sentence to the court. Id. (citing K.R.S. § 532.025(1)(b)). Upon
the jury’s recommendation, the judge ultimately determines the defendant’s sentence. Id.
Because the prosecutor’s comments and the instructions were consistent with this law, the
Kordenbrock Court determined that a Caldwell violation did not occur.
C.

Analysis

Kordenbrock remains binding precedent in this Circuit and, thus, controls the fate
of Willoughby’s Caldwell claim. Because the prosecutor’s comments and the trial court’s
instructions were consistent with Kentucky law – which specifically states that juries
“recommend” a sentence – no Caldwell violation occurred at Willoughby’s trial. Any
“repeated emphasis” on the advisory nature of the jury’s determination does not change
this conclusion. As the Kordenbrock Court recognized, “emphasizing the ‘advisory’ role of
the jury, or the fact that the jury is making a ‘recommendation’ to the judge, does not
support a Caldwell violation” so long as the statement is consistent with local law.
Kordenbrock, 919 F.2d at 1101. Therefore, it would be a futile effort for this Court to count
the instances that “recommend” was mentioned or consider whether the repeated
emphasis somehow violated Willoughby’s constitutional rights. In the end, describing the
56

jury’s determination as a recommendation was consistent with Kentucky law at the time of
Willoughby’s trial and, therefore, no Caldwell violation occurred.
Willoughby recognizes that Kordenbrock is binding precedent in this Circuit, but
insists that the Court not follow the decision because it was wrongly decided.6 More
specifically, Willoughby argues that the Kordenbrock Court erred in concluding that the
disputed comments were consistent with Kentucky law. Because the comments were
erroneous under Kentucky law, Willoughby asserts that Kordenbrock did state a viable
Caldwell claim.

Despite Willoughby’s disagreement with the Circuit’s decision in

Kordenbrock, this court cannot ignore biding precedent. “Absent a clear directive from the
Supreme Court or a decision of the Court of Appeals sitting en banc, . . . , a district court,
is not at liberty to reverse the circuit’s precedent.” Hall v. Eichenlaub, 559 F. Supp. 2d 777,
781-82 (E.D. Mich. 2008). Unless Kordenbrock is reversed, this Court is bound by the
decision of the Sixth Circuit Court of Appeals. Id.
Willoughby also asserts that the prosecutor’s comments and the jury instructions
violated his right to a fair trial under the Fourteenth Amendment, and suggests this claim
is distinct from a Caldwell violation. Willoughby does not explain why a distinct analysis is
warranted. Rather, he cites two cases, Donnelly v. DeChristoforo, 416 U.S. 637 (1974) and
Wood v. Marshall, 790 F.2d 548 (6th Cir. 1991), for the general proposition that
prosecutorial misconduct and improper jury instructions violate a defendant’s right to a fair
6

In his petition, Willoughby also argued that Kordebrock was decided under the
“unreasonable application of federal law” portion of § 2254(d)(1), and because that portion of the
statute is unconstitutional, the Kordenbrock decision is somehow invalid or has little precedential
effect on his claim. However, in his reply, Willoughby correctly concedes that Kordenbrock was not
decided under AEDPA. (Doc. # 21 at 5 n. 1). In fact, Kordenbrock was decided in 1990, six years
before AEDPA was signed into law. Based on Willoughby’s appropriate concession, the Court will
not consider his alternative reason for disregarding Kordenbrock.
57

trial under the Fourteenth Amendment. Willoughby does not, however, offer any analysis
in support of this claim. Nonetheless, Willoughby’s attempt to find another means to
challenge the statements is fruitless.
The prosecutor’s comments did not amount to prosecutorial misconduct and did not
deprive Willoughby of a fair trial. On habeas review, the Court must employ a two-part test
to determine whether the prosecutor’s comments violated Willoughby’s constitutional right.
Slagle v. Bagley, 457 F.3d 501, 515 (6th Cir. 2006). First, the Court must determine
whether the prosecutor’s statements were improper. Id. at 516. If they are determined to
be improper, the Court must then consider four additional factors to decide whether the
comments were sufficiently flagrant to warrant reversal. Id. Here, the prosecutor’s
repeated emphasis to the jury that their sentencing determination was a recommendation
was not improper because those statements were consistent with Kentucky law at that
time.
For similar reasons, the jury instructions did not deprive Willoughby of the right to
a fair trial. Jury instructions violate a defendant’s right to a fair trial when they are contrary
to state law and undermine the reliability of the verdict. Williams v. Anderson, 460 F.3d
789, 810 (6th Cir. 2006). The jury instructions at-issue here cannot be said to have
rendered Willoughby’s trial fundamentally unfair under this test. As the Court has already
held, the jury instructions were consistent with Kentucky law at the time given, and they did
not, therefore, undermine the reliability of the verdict. Thus, Willoughby’s constitutional
rights – be it his Eighth or Fourteenth Amendment rights – were not violated when the jury
was told that their sentencing determination was a recommendation.

58

Claim 5 - Prosecutorial misconduct during sentencing phase
As his fifth ground for habeas relief, Willoughby contends the prosecutor made
seven improper comments during penalty-phase closing arguments that, when considered
cumulatively, deprived him of a fair trial.

Specifically, Willoughby challenges the

prosecutor’s statements about (1) the concerns of a murderer escaping from prison or
causing additional harm while incarcerated, (2) the death penalty as a deterrent, (3) the
jury’s sentencing determination as a recommendation, (4) Willoughby’s demeanor during
trial, (5) concerns about a murderer’s ability to be rehabilitated during incarceration, (6) and
praising the work of the police officers and prosecutors that worked on the case.
Additionally, Willoughby argues that it was improper and prejudicial for the prosecutor to
show the jury oversized pictures of the victims’ bodies that were never admitted into
evidence.
A.

State Court Decision

Willoughby pursued this claim on direct appeal from his conviction and sentence.
The Kentucky Supreme Court adjudicated this claim, holding:
Both Halvorsen and Willoughby complain that repeated misconduct by the
prosecutor during the penalty phase closing argument deprived them of a fair
trial. Our examination of the closing argument has convinced us that this
complaint is without merit. Brief portions of the argument were irrelevant, but
on the whole, the argument was fair comment on the evidence.
Considering the overwhelming nature of the evidence against Halvorsen and
Willoughby, including their own admissions, we quote from Timmons v.
Commonwealth, 555 S.W.2d 234, 241 (Ky. 1977), which concluded:
We do not think the prosecutor’s arguments exceeded the bounds
of propriety, nor do we think that it could have added much fuel to
the fire anyway.
The same comment applies here.
59

Halvorsen, 730 S.W.2d at 925-26. Despite this analysis, Willoughby argues there is no
indication that the Kentucky Supreme Court adjudicated the federal constitutional claim on
the merits. Willoughby does not present any justification for this argument, nor does any
argument seem apparent to the Court.
Pursuant to Johnson v. Williams, 133 S.Ct. 1088 (2013), the Court presumes that
the Kentucky Supreme adjudicated Willoughby’s federal constitutional claim on its merits.
In Johnson, the Court held that “[w]hen a state court rejects a federal claim without
expressly addressing that claim, a federal habeas court must presume that the federal
claim was adjudicated on the merits . . . .” Id. at 1096. In that case, the state court rejected
a prisoner’s challenge that the trial court improperly dismissed a juror in violation of the
Sixth Amendment and California Penal Code. Id. at 1093. The state court cited to United
States Supreme Court authority in rejecting the claim, but did not explicitly state whether
it was addressing the claim on federal or state grounds, or both. Id. The United States
Supreme Court held, inter alia, that it was appropriate to presume the claim was
adjudicated on its federal merits even if the state court only addressed state precedent,
particularly when state precedent fully incorporates a related federal constitutional right.
Id. at 1094-95.
Here, the Kentucky Supreme Court’s decision cited Kentucky law on prosecutorial
misconduct that fully incorporates the related federal right. Halvorsen, 730 S.W.2d at 926.
More specifically, the court cited its prior decision in Timmons v. Commonwealth, 555
S.W.2d 234, 241 (Ky. 1977) in holding that the prosecutor’s statements were neither
improper nor “added much fuel to the fire.” Halvorsen, 730 S.W.2d at 926. The United
States Supreme Court applies the same two-part standard to determine whether
60

prosecutorial misconduct violates a defendant’s federal right to due process of law. Darden
v. Wainwright, 477 U.S. 168, 181 (1986); Donnelly v. DeChristoforo, 416 U.S. 637 (1974).
As such, it is appropriate to presume that the Kentucky Supreme Court adjudicated
Willoughby’s claim on its merits. This claim is, therefore, entitled to deferential review
under § 2254(d).
B.

Applicable Law

The Kentucky Supreme Court’s denial of Willoughby’s prosecutorial misconduct
claim must be analyzed against the “clearly established law” announced in Donnelly v.
DeChristoforo, 416 U.S. 637 (1974), and its progeny. As previously discussed, see supra
Part IV, Claim 3, subsection B, before a federal court can overturn a conviction, the
prosecutor’s statements must be both improper and “so infected the trial with unfairness
as to make the resulting conviction a denial of due process.” Donnelly, 416 U.S. at 643.
Improper statements are not to be considered in isolation, but must be considered
cumulatively and in the context of the entire trial. United States v. Young, 470 U.S. 1, 11
(1985). And when a prisoner challenges statements made during the sentencing phase,
the Court must consider those statements against any attendant aggravating and mitigating
circumstances. Bates v. Bell, 402 F.3d 635, 648 (6th Cir. 2005). Ultimately, a prisoner is
deprived of due process when prosecutorial comments during the sentencing phase are
“so egregious that they effectively ‘foreclos[e] the jury’s consideration of . . . mitigating
evidence.’” Id. at 649 (quoting DePew v. Anderson, 311 F.3d 742, 748 (6th Cir. 2002)).
C.

Analysis

Following the two-part test for prosecutorial misconduct claims, the Court will first
assess each of the prosecutor’s comments individually to determine whether the Kentucky
61

Supreme Court unreasonably applied clearly established federal law in determining that the
comments were not improper. The Court will then determine whether the Kentucky
Supreme Court unreasonably applied federal law in determining that none of the
comments, even if improper, were flagrant such that Willoughby was denied due process.
1.

Alleged Improper Comments
a.

Suggestion that Willoughby would cause future harm,
escape from prison, and had no ability to be rehabilitated.

Willoughby challenges a series of statements made by the prosecutor at the outset
of his penalty-phase closing argument. According to Willoughby, the prosecutor improperly
suggested that he would be a threat to inmates and prison personnel if he were given a life
sentence, that he might escape from prison, that he could not be rehabilitated with a life
sentence, and that a sentence of death was the only punishment to serve as an adequate
deterrent to future murderers of this kind.7 Willoughby asserts that these comments
7

The prosecutor stated:

What they don’t realize is that the Kentucky State Penitentiary in Eddyville is a city within
a few acres, and you’re not taking the person out of this world with a life sentence.
What should we expect of an individual who has committed a ghastly act of murder and is
sentenced to life? What do you expect? Do you think that he’s suddenly rehabilitated upon entry
into the penitentiary? He’s transformed? You think that happens? Do you think that he
miraculously loses his rage or his callousness and he grasps the concept somewhere in this time
period that the human life is the most precious thing on earth?
I wonder if the anti-death penalty people have ever really considered – ever really
considered the welfare of hundreds of thousands of people who are subject to the risk of convicted
murderers. Is the inmate population safe? The young man convicted of burglary or larceny, theft,
who goes to the penitentiary, is he safe? What prevents a convicted murderer with a life sentence
from getting a shiv and holding it to the kid’s neck, the young burglar’s neck, and demanding
escape? What prevents that?
Well, that’s easy to say – the answer, segregation from prison population. Well that’s fine,
but what about the prison officials, people like George Coons, people who have to handle the
murderer with the multiple life sentence? That’s a reality. That’s in the real world. Every second
every person who is in this capacity of watching, of being in control, has to have a razor sharp
sense of awareness in a penitentiary, because their lawness can be the opportunity, the chance,
for the convicted murdered to effect his escape. That’s reality.
62

improperly inflamed the passions of the jury.
It is clearly established that prosecutor’s “remarks which were ‘wholly irrelevant to
any facts or issues in the case, the purpose and effect of which could only have been to
arouse passion and prejudice’ jeopardized the defendant’s right to a fair trial.” Bowling v.
Parker, 344 F.3d 487, 516 (6th Cir. 2003) (quoting Viereck v. United States, 318 U.S. 263,
247 (1943)). When the prosecutor’s comments at-issue here are considered in isolation,

And his bargaining power, the throat of an innocent person whose job it is just to maintain
the person. Well, our response to that person in the penitentiary, don’t kill him now, Frank, because
if you do we’re going to give you a life sentence. Is that a detent to a person who’s been convicted
of murder, with a life sentence, multiple murders? Well I suggest to you that the death penalty is
needed, much needed deterrent for the inmate population of our penal institution.
Is it conceivable to you that a convicted murderer can escape from an institution and thus
subject untold numbers of innocent citizens in a community to further tragedy? Well, I hope you
understand that it is. In the last few years, we saw Martin Luther King, the greatest black leader
who ever lived, gunned down; the person caught, arrested, tried, convicted, sentenced and placed
in the extremely tight security of the Tennessee maximum prison in Brushy Mountains, and he
escaped, and thank God he broke his ankle when he jumped down and he was gone for three days
but they finally caught him.
Think about the death penalty as a deterrent.
...
Well what about the death penalty as a deterrent? Does it actually stand as a threat to the
criminal who is out there right now, thinking about an armed robbery of a liquor store, or the
burglary of somebody’s home? Do they kill the eye witness? Do they think about that and thus
escape capture because nobody can identify them?
Obviously nothing that occurs in a judgment or verdict will totally affect every citizen, every
potential murderer or criminal. The death penalty conviction will not stop future murders in this
community. It will not, totally. Won’t stop them all. But it most certainly is a valuable and effective
deterrent to individuals – to certain individuals who really believe the death penalty will be enforced
by Commonwealth Attorney’s offices and juries, the citizens in the community. If they believe that,
then it can be a deterrent.
If the belief is that you’ll never get the death penalty, then the value of the life, of the
potential innocent victim eye witness, goes way down. The question of deterrence is easily
resolved. As to the future threat of a convicted murdered to society, Gary Gilmore will never kill
another college student, ever. Can the Illinois authorities guarantee that for Richard Speck? Can
California authorities guarantee that about Charles Manson?
Kentucky citizens, ladies and gentlemen of the jury, have a right to be protected from any
person who kills innocent people for no reason. They have a right to be guaranteed – guaranteed
that a convicted murderer under our law will never kill again. That’s not murder. That’s protection
of society.
(TE 2533-37).
63

they could be construed by reasonable jurists to have been designed to arouse the passion
and prejudice of the jury. However, when the comments are properly reviewed in context,
it is apparent that they were not designed to inflame the jury. See Beverly, 369 F.3d at 543
(holding that statements must be examined within context of entire record).
The prosecutor opened his closing argument by attempting to curtail any juror
hesitation to impose the death penalty based on the notion that people do not have the
right to kill others. The prosecutor was concerned some jurors might refuse to recommend
the death penalty because the Bible commanded that “thou shalt not kill.” (TE 2529-30).
He was also concerned that some jurors might believe that life imprisonment serves the
same societal interests as the death penalty; namely, keeping murderers from reentering
society. Based on these concerns, the prosecutor attempted to explain that it is not always
wrong to kill another person, citing to self defense and defense of others as examples of
justified killing. The comments at-issue here were made to show that the death penalty
served another legitimate purpose – the protection of society – that a sentence of life
imprisonment could not always achieve.
Importantly, the prosecutor’s comments were broad statements about the general
purpose of the death penalty. They did not suggest, as Willoughby argues, that he might
pose a threat to inmates or prison personnel, nor did they suggest that he might escape
from prison. Additionally, the comments did not suggest that Willoughby could not be
rehabilitated. To the contrary, the prosecutor talked about the threat that defendants
serving a life sentence pose to others generally, and their general incentive to escape. At
one point during the disputed comments, the prosecutor even mentioned a hypothetical
inmate, “Frank,” in explaining that he has minimal incentive to comply with rules in prison
64

if he is already serving a life sentence.
These statements are similar to those considered by the Sixth Circuit on previous
occasions and found not to be improper. See Beuke v. Houk, 537 F.3d 618, 647 (6th Cir.
2008); Byrd v. Collins, 209 F.3d 486, 538-39 (6th Cir. 2000); Hicks v. Collins, 384 F.3d 204,
219 (6th Cir. 2004). For example, in Beuke, the prosecutor “began his closing argument
with broad statements about the death penalty in general, noting that ‘our society will take
life’ in order ‘to let a message ring out’ to ‘criminals and potential criminals in this
community that we won’t tolerate this.’” 537 F.3d at 647. The prosecutor also explained
that, “where aggravating circumstances sufficiently outweigh mitigating factors, the death
penalty sends ‘a message of justice[ ] to the law-abiding people in the community,’ and ‘the
only way the public can be satisfied . . . is if capital punishment is measured out.’” Id. The
Sixth Circuit held that when these statements are considered in context, they are “general
background information on the death penalty and the need to punish guilty people, rather
than an impassioned command that the jurors must recommend death based on some
amorphous societal obligation.” Id.
The Sixth Circuit’s holding in Beuke is directly applicable here. The prosecutor did
not command that the jurors recommend the death penalty based on a fear that Willoughby
would cause additional, future harm to society. Instead, the sole purpose of the argument
was to convey to the jury that society approves capital punishment in certain
circumstances, and that the death penalty serves interests that a life sentence cannot.
Additionally, the prosecutor never mentioned Willoughby during this portion of his
argument. Rather, after giving this general background information, the prosecutor moved
to a discussion of specific mitigating and aggravating evidence to support the death penalty
65

in this particular case. Thus, as in Beuke, the prosecutor’s statements were not improper.
Additionally, the comments at issue here are unlike those in Bates v. Bell, 402 F.3d
635 (6th Cir. 2005), a case cited by Willoughby. In that case, the prosecutor told the jury
they would become an accomplice to a future murder if they permitted the defendant to live.
The prosecutor stated:
By permitting this man to live, we in essence become an accomplice. We
have assisted him in his criminal undertaking. If you, based on the law and
the facts of this case, choose not to execute this defendant, you have
passively issued a warrant of execution for someone else. We don’t know
who it is. We don’t know when it will take place; but ladies and gentlemen,
I think you can see from the proof in this case that the only thing that will be
left out of that warrant of execution that someone else is to receive, if this
man lives, is the name of the victim and the date that it takes place. This
man is going to kill again if he is not stopped first, and I think that is obvious
to each of you . . . .
Id. at 642. The Sixth Circuit held that these comments appealed to the fears of the
individual jurors and to emotion and were, therefore, improper. Id. at 644. Here, in
contrast, the prosecutor never suggested that Willoughby would escape or kill another
person. Instead, he made references to escape and future harm only to show that a
sentence of life imprisonment is not always justified. Given the context of these statements,
the Kentucky Supreme Court did not unreasonable apply clearly established federal law in
holding the statements were not improper.
The prosecutor’s statements about deterrence deserve additional comment.
Willoughby relies on Henley v. Bell, 487 F.3d 379 (6th Cir. 2007) for the proposition that it
is improper for a prosecutor to comment on the deterrent effect of the death penalty. In that
case, the prosecutor asked the jury to “send a message” by imposing the death penalty.
Id. at 390. The Sixth Circuit found the comment to be improper, but held there was no

66

prejudice because the trial court admonished the prosecutor to discontinue that line of
argument. Id.
The prosecutor’s statement on deterrence at issue here do not go as far as those
in Henley. Here, the prosecutor did not ask the jury to “send a message” or otherwise
impose the death penalty with the hope that it will deter future conduct. Rather, the
prosecutor’s comments on deterrence are akin to those in Beuke which were intended to
provide “general background on the death penalty and the need to punish guilty people.”
Beuke, 537 F.3d at 647. In fact, the prosecutor readily admitted that the death penalty will
not stop all criminals, but that it might impact the decisions of some future criminals.
Because of this qualifying language, and the general nature of the comments, the Kentucky
Supreme Court did not unreasonably apply federal law in finding these statements were
not improper.
b.

Comments on Willoughby’s remorse

Willoughby asserts that the prosecutor improperly commented on his apparent lack
of remorse during the course of trial. The prosecutor stated:
You know we’ve watched these defendants – we’ve watched these
defendants for days on end in this courtroom and we’ve listened to each of
them explain how this callous crime occurred, and not one time did we ever
see the slightest hint of remorse for what they did. Not one time.
(TE 2540). Willoughby argues these comments were improper because they violated his
Fifth Amendment right not to testify during the penalty phase and flagrantly misrepresented
the evidence. Neither assertion has merit.
In instances where a defendant does not testify at trial, courts reach varying
conclusions on whether a prosecutor infringes on the defendant’s Fifth Amendment right

67

not to testify by discussing lack of remorse. See, e.g., Cunningham v. Perini, 655 F.2d 98,
100 (6th Cir. 1981) (holding that comment that defendant just sat and stared during trial did
not run afoul of the Fifth Amendment); Isaacs v. Head, 300 F.3d 1232 (11th Cir. 2002)
(examining courts’ varying approaches). This Court, however, need not wade through the
conflicting precedent in this case because Willoughby did, in fact, testify during the guilt
phase of his trial. Once a defendant places his own demeanor in evidence by taking the
stand to testify, as Willoughby did, his appearance at trial can be discussed by the
prosecutor and considered by the jury. Cunningham, 655 F.2d at 100.
Defendant’s demeanor was not removed from the jury’s consideration during the
penalty phase simply because Willoughby chose not to testify during the sentencing phase.
As the Kentucky Supreme Court has held, “[w]hen the same jury sits in both parts of a
bifurcated proceeding in a capital murder trial, all evidence introduced in the guilt phase
may be considered by the jury during the sentencing phase.” Harper v. Commonwealth,
978 S.W.2d 311, 317 (Ky. 1998). Willoughby testified during the guilt phase of his trial.
Willoughby’s counsel even asked the jury to consider portions of his guilt-phase testimony
during his penalty-phase closing argument.

Under these circumstances, it was not

improper for the prosecutor to discuss Willoughby’s demeanor, including lack of remorse,
during penalty-phase closing arguments.
The prosecutor also did not mischaracterize the evidence by commenting on lack
of remorse, contrary to Willoughby’s assertion. A police detective testified that Willoughby
appeared “sorry and remorseful” when he was interviewed shortly after the murders. (TE
1657). However, the prosecutor’s comments were not directed at Willoughby’s remorse,
or lack thereof, at or near the time of the murders, but to Willoughby apparent lack of
68

remorse at trial. Willoughby has not cited any portion of his testimony where he overtly
expressed remorse. Rather, he cites to those portions of his testimony where he justified
the murders based on self-defense and intoxication. The prosecutor’s comment on lack
of remorse did not mischaracterize this testimony.
c.

Images of victims’ bodies

Willoughby argues that the prosecutor improperly showed the jury slides of the
victims’ bodies during his closing argument. The slides, according to Willoughby, were
never introduced into evidence and, thus, not available for the prosecutor to use during his
argument. Additionally, Willoughby contends that the slides depicted enlarged photographs
of the victims’ bodies and were used only to inflame the passions of the jurors.
Willoughby’s argument, however, is premised on the misleading notion that no images of
the victims’ bodies were admitted into evidence.
During the guilt phase of Willoughby’s trial, Kentucky State Police Officer Robert
Stamps testified that he took photographs of the bodies of Joe Norman and Joey Durrum
on the Brooklyn Bridge on the night of January 13, 1983. The prosecutor showed Stamps
four slides, and Stamps verified that those slides depicted accurate copies of the
photographs he took. The prosecutor then moved to admit photographed copies of the
slides into evidence rather than the slides themselves. Then, with the court’s permission,
the prosecutor projected images from the slides onto a screen as Stamps described the
images.
It was not improper for the prosecutor to use the projected images during his
sentencing-phase closing argument. Duplicate photographs of each image had been
admitted into evidence during the guilt phase, and, more importantly, the prosecutor was
69

granted permission from the court to show the enlarged images during the guilt phase.
Because the jury may consider evidence admitted during the guilt phase in its sentencing
determination, and because the jury saw each of the images during the guilt phase, the
prosecutor did not overstep his bounds by showing the images during his sentencing-phase
closing argument. See Bedford v. Collins, 567 F.3d 225, 235 (6th Cir. 2009); Harper, 978
S.W.2d at 317.
d.

Vouching and Bolstering Comments

As his final claim of prosecutorial misconduct, Willoughby argues the prosecutor
improperly vouched for the integrity of police officers and prosecutors who worked on his
case. The challenged comments were made near the end of the prosecutor’s penaltyphase closing argument, where the prosecutor attempted to explain the unique duties that
various individuals and groups perform in a criminal trial.

Specifically, the prosecutor

explained the duties of police officers, stating:
But other people have duties in this case. The police; you’ve got a multiple
police influx in this case from the state police, from people in Richmond, local
City police departments down around the river to the Lexington police
department, particularly in the area of scientific investigations and the
collection of evidence, and the crime lab in Frankfort, police – state
policemen who did tremendous amounts of analyzing and presentation of it
to you. Their duties in a case, any case, but particularly in this case, a death
penalty case, is to collect everything so that you’ll know, if you’re on a jury,
you’ll know exactly all the facts. Because when we started this case I told
you that I accepted the burden of proving it to you beyond all doubt. How
can I do that if I don’t have the evidence; if the police don’t go out and do it
and spend the hours collecting and taking statements and corroborating
evidence that Susan Hutchens tells us, proving that she’s telling the truth, by
going to the witness or whoever it is and finding whatever she says he said
or did. I know it takes a lot of work, and you don’t have to do that, if you’re
a cop. You can work nine hours and go home. You can shuck it off. But you
didn’t see it in this case.
You saw other things in this case. You saw very deep concern by policemen
70

for the defendant’s rights in this case, very deep concern, the admonishment
of rights, calling Willoughby’s parents for him, things like that, human things.
They had a duty in this case and they did it, ever single one of ‘em.
(TE 2255-56).
The prosecutor then explained the duties of the Commonwealth Attorney’s office:
The Commonwealth has a duty in the case. This is not an easy case to
present. I’m sure you can well imagine by this time – you probably never
thought of it before – but this is a tough case, particularly when you’re going
to ask for the death penalty and you know you are, then it’s got to be painfully
prepared, because this is not a case to be decided by beyond a reasonable
doubt, but beyond all doubt. And I told you that . . . we accepted that burden,
back on July the 5th.
...
It’s a – it’s a proud feeling that we have to be able to be entrusted with the
responsibility to have a burden like this. And particularly I’m proud of being
able to have an office of assistants who can grasp a case of this magnitude,
because you leaned from somewhere in the testimony that these two were
at the scene, at the arrest, working with the police and they’ve worked until
this very day.
(TE 2256-57).
Within his closing argument, the prosecutor also discussed the duties of others,
including defense counsel, the judge and jury. The prosecutor explained that defense
counsel had a duty “to make sure this is a fair trial for their clients,” and even praised the
work of defense counsel, stating: “[t]hey did it well and they are to be commended.” (TE
2556). The prosecutor also explained that the judge served a unique purpose, stating: “[h]is
duty is to make sure this is a fair trial and to tell you what the law is in the case, instructions
on the law, properly, and he’s done that.” (TE 2257). Finally, the prosecutor discussed
the duties of the jury, including listening to the evidence, determining guilt or innocence and
an appropriate sentence. With the context of the challenged statements in mind, the Court
will address the statements about the police and prosecutors in turn.

71

Willoughby relies on Moore v. Commonwealth, 634 S.W.2d 426 (Ky. 1982) and
Armstrong v. Commonwealth, 517 S.W.2d 233 (Ky. 1974) for the proposition that “[t]he
Kentucky Supreme Court has held that this kind of personalized vouching for the integrity
of the police” and prosecutor’s staff is highly improper. However, on federal habeas review,
the Court is not concerned with whether the prosecutor’s comments violated state
precedent. Instead, the relevant inquiry is whether the Kentucky Supreme Court’s decision
at-issue here 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) (emphasis added). As such, the Kentucky Supreme Court’s decision in
Moore and Armstrong is irrelevant to the adjudication of this claim.
Applying clearly established federal law, fair minded jurists could disagree about
whether these comments were proper. It is improper for a prosecutor to vouch for the
credibility of a government witness “by indicating a personal belief in the witness’s
credibility thereby placing the prestige of the office of the [Commonwealth’s Attorney]
behind that witness.” United States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999).
Improper vouching might involve “blunt comments” such as “I think he is honest,” or
comments that “imply that the prosecutor has special knowledge of facts not in front of the
jury or of the credibility and truthfulness of witnesses and their testimony.” Id. (quoting
United States v. Kerr, 981 F.2d 1050, 1053 (9th Cir. 1992)). However, it is not improper
for a prosecutor to comment on a witness’s credibility when the comments ask the jury to
draw reasonable inferences from the evidence presented. See United States v. Parker, 49
F. App’x 558, 563 (6th Cir. 2002) (finding that prosecutor’s comments on credibility of
witnesses were not improper when they “merely referred to the evidence and offered an
72

explanation for the witnesses’ possible motivation to lie or to tell the truth”); United States
v. Weatherly, 525 F. 3d 265, 271 (3d Cir. 2008) (prosecutor’s statement that police officer
would be risking career by lying not improper because based on evidence in record).
Here, while the prosecutor opined that police officers performed their duties in
investigating the case, the prosecutor also generally pointed to testimony supporting this
assertion. For example, he acknowledged that police officers might shirk their duties, but
explained to the jury that “you didn’t see it in this case.” (TE 2255). The prosecutor also
asked the jury to consider testimony that officers admonished Willoughby of his rights and
called his parents in asserting that the jury “saw very deep concern by policemen for the
defendant’s rights in this case.” (TE 2256). Giving the Kentucky Supreme Court the
“substantial breathing room” to determine prosecutorial misconduct claims that this federal
habeas must, the Kentucky Supreme Court did not unreasonably apply federal law in
finding that these comments were not improper; fair-minded jurists could conclude that
these comments asked the jury to draw inferences about the police officers’ conduct based
on evidence presented. See Slagle v. Bagley, 457 F.3d 501, 516 (6th Cir. 2006) (“[T]he
Supreme Court has clearly indicated that the state courts have substantial breathing room
when considering prosecutorial misconduct claims because ‘constitutional line drawing [in
prosecutorial misconduct cases] is necessarily imprecise.”) (quoting Donnelly v.
DeChristofor, 416 U.S. 637, 645 (1974)).
The propriety of the prosecutor’s comments on the efforts of himself and his staff
also presents a close question. Willoughby argues the prosecutor’s comments implied that
they would not have prosecuted Willoughby if they did not believe he was guilty. Of course,
“it is always improper for a prosecutor to suggest that a defendant is guilty merely because
73

he is being prosecuted or has been indicted.” United States v. Bess, 593 F.2d 749, 754
(6th Cir. 1979). Likewise, it is improper for a prosecutor to interject his personal opinion.
Id. However, neither impropriety occurred here. The prosecutor merely commented that
two assistant prosecutors had worked the case since the day of Willoughby’s arrest, and
asked the jury to recall testimony to that affect. The prosecutor also explained that he
proudly accepted the burden of proof in this case, though he never suggested his personal
opinion as to whether he had met that burden. Neither of these comments directly or
indirectly suggested the prosecutor’s feelings on Willoughby’s culpability, nor did they place
the prestige of the government behind the case. As a result, the Kentucky Supreme Court
did not unreasonably apply clearly established federal law in holding that these comments
were not improper.8
2.

Flagrancy of Comments

After concluding that none of the prosecutor’s comments exceeded the bounds of
propriety, the Kentucky Supreme Court also concluded that the comments were not flagrant
and, therefore, did not deprive Willoughby of due process. Halvorsen, 730 S.W.2d at 925.
Because this Court has already concluded that the Kentucky Supreme Court reasonably
applied clearly established federal law in finding the first prong of the test for prosecutorial
misconduct was not met, this Court is not necessarily required to review the Kentucky
Supreme Court’s holding on the latter prong. Nonetheless, the Court agrees with the

8

Willoughby also challenges the prosecutor’s repeated reference to the jury’s sentencing
determination as a “recommendation,” and asserts that these statements violated both his Eighth
and Fourteenth Amendment rights. This sub-claim is merely a duplicate of the claim he raised as
fourth ground for habeas relief. The Court has already found no merit to that claim, because the
comments accurately reflected Kentucky law. See supra Claim 4.
74

Kentucky Supreme Court that the prosecutor’s statements, when considered cumulatively,
did not deprive Willoughby of due process.
While the Sixth Circuit instructs the Court to consider four factors in determining
whether the comments deprived Willoughby of due process, the Court must ultimately
consider whether the challenged comments were so egregious that they effectively
foreclosed the jury’s consideration of mitigating evidence. See Bates, 402 F.3d at 648.
Willoughby contends that the prosecutor’s comments had that precise effect; he offered
compelling mitigating evidence which should have led the jury to spare his life. However,
when the jury’s ultimate sentencing recommendation is considered against the aggravating
and mitigating evidence, it does not appear that the prosecutor’s comments effectively
foreclosed the jury from considering the mitigating evidence.
The jury’s recommended sentences for each of the victims demonstrates that they
weighed the mitigating and aggravating evidence. The jury recommended that Willoughby
serve a life sentence for the murder of Joe Norman. This decision appears to have been
motivated by Willoughby’s own testimony that he shot Norman in self defense.
Willoughby’s testified that he did construction work for Joe Norman, and that Norman was
an abusive employer who made physical threats and pushed Willoughby on several
occasions. Willoughby also testified that Norman frequently refused to pay him. On the
day of the murders, Norman asked Willoughby and his co-defendant to come to his house
to smoke marijuana. Shortly after they arrived, an argument between the three individuals
erupted over money. Norman grabbed a bayonet and threatened to cut Willoughby’s heart
out. Feeling threatened, Willoughby testified that he fired two or three shots at Norman.
After considering this testimony, as well as all other evidence, the jury recommended
75

Willoughby serve a life sentence for Norman’s death.
Conversely, the jury recommended that Willoughby be sentenced to death for the
murders of Joey Durrum and Jacqueline Greene. The evidence indicated that each of
these victims had nothing to do with the argument between Willoughby, Halvorsen and
Norman; rather, they were innocent bystanders. In addition, Susan Hutchens’ testimony
revealed that Willoughby callously fired two shots at Greene as she was lying on the floor
crying from sustaining previous gun shots. The strength of this aggravating evidence
supported the jury’s recommendation. More importantly, the jury’s decision to recommend
a life sentence for the murder of Norman, while recommending the death penalty for the
murder of Durrum and Greene indicates that the jury weighed aggravating and mitigating
evidence.9
Despite the strength of the aggravating evidence, Willoughby contends that the jury
could not have recommended a sentence of death if it considered his intoxicated state at
the time of the murders as well as his remorse. Willoughby believes that the prosecutor’s
comments caused the jury not to consider this compelling mitigating evidence. This
argument, however, assumes that the mitigating evidence was so compelling that it

9

In his reply/traverse, Willoughby argues that the jury recommended a sentence of death
for the murders of Durrum and Greene based other improper comments by the prosecutor, and not
because of the aggravating evidence. According to Willoughby, the prosecutor suggested that the
jury must impose the death penalty in order to deter others from committing similar acts and warned
that “anarchy would reign in Lexington” if the death penalty was not imposed in this case. (Doc. #
21 at 10). Having raised this issue for the first time in his reply/traverse, Willoughby is not
asserting that these allegedly improper comments entitle him to habeas relief. And given the
weight of the aggravating evidence related to the murders or Durrum and Greene, these isolated
comments were not likely to cause the jury to recommend the death sentence. The fact remains
that the jury recommended different punishments for Norman, Durrum and Greene, which was
consistent with the aggravating and mitigating evidence.
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outweighed the aggravating evidence. Based on the jury’s sentencing recommendations,
though, it appears that the jury found some mitigating evidence to be compelling while the
jury concluded that other mitigating evidence, such as intoxication, had little strength. In the
end, the jury must have considered mitigating evidence based on its decision to
recommend a life sentence for Norman’s murder. The prosecutor’s statements, then,
cannot be said to have “effectively foreclosed the jury’s consideration of mitigating
evidence.” See Bates, 402 F.3d at 648.
Additionally, the prosecutor’s challenged comments had little chance of misleading
the jury. The trial court instructed the jury immediately prior to the closing argument that
arguments of counsel were not evidence, which had the effect of minimizing any
improprieties in the argument. See Byrd, 209 F.3d at 537 (holding that instructions to the
jury that arguments of attorneys were not evidence may cure any improper closing
arguments). Additionally, as the Court already concluded, many of the prosecutor’s
comments served as general background justification on the death penalty. The comments
did not imply that Willoughby deserved the death penalty because of these justifications,
but only that the death penalty is an acceptable form of punishment in society because of
these general concerns among others.

After making these general statements, the

prosecutor specifically discussed the aggravating and mitigating evidence related to
Willoughby, and asked the jury to recommend a death sentence based on this evidence.
Likewise, the prosecutor’s alleged vouching for the integrity of the police officers and
his staff had little chance of misleading the jury. In making these statements, the prosecutor
never asked the jury to give special credence to the strength of the Commonwealth’s case
or to the credibility of the police investigation. See United States v. Carroll, 26 F.3d 1380,
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1389-90 (6th Cir. 1994) (holding it was improper for prosecutor to state, “I submit to you
that Robin and Richie Patrick are credible witnesses,” and that the comments deprived the
defendant of due process where the only evidence against the defendant was the testimony
of the Patricks). Instead, these statements were made in the context of praising the work
of everyone involved in the trial, including the trial court and defense counsel.
Similarly, the photographs of the victims’ bodies did not mislead the jury. As an
aggravating circumstance, the Commonwealth was required to prove that Willoughby’s
actions in connection with killing each victim were intentional, and that Willoughby’s actions
also resulted in the death of at least one of the other victims. The contested photographs
depicted the victims’ bloodied bodies as they were found at the Brooklyn Bridge, and
revealed the location of many of the gun shot wounds that the victims suffered. The
photographs also showed a rope tied around one of the victim’s waste and attached to a
concrete block, presumably intended to cause the body to sink to the bottom of the river
below. The photographs are certainly gruesome, but they accurately depicted the brutality
of the murders and were entirely relevant aggravating evidence of Willoughby’s intent.
Finally, comments on Willoughby’s lack of remorse were not misleading. As the
Court already held, these statements were fair comment of Willoughby’s demeanor, which
he put at issue by taking the stand, and they did not misrepresent any evidence. Moreover,
after the prosecutor’s closing argument, Willoughby’s counsel asked the jury to consider
Willoughby’s alleged demonstrations of sorrow during his testimony as mitigating evidence.
The prosecutor’s comments on remorse were preemptively made to refute this mitigation
argument. And of greater significance, defense counsel had the last word in arguing that
Willoughby did express sorrow, which negated the effect of any allegedly misleading
78

comments on lack of remorse.
Ultimately, the Kentucky Supreme Court did not unreasonably apply federal law in
holding that the prosecutor’s allegedly improper statements during closing argument did
not deprive Willoughby of a fair trial. The prosecutor’s comments were not so egregious
and inflammatory that they effectively foreclosed the jury’s consideration of mitigating
evidence. See Bates, 402 F.3d at 648. In fact, the jury’s recommendation of a life
sentence for the death of Joe Norman shows the jury did consider the mitigating evidence
to some degree. The evidence of Willoughby’s guilt and the brutal nature of Willoughby’s
crimes was also overwhelming.

As such, the Kentucky Supreme Court correctly

concluded that the prosecutor’s comments did not constitute prejudicial error.
Claim 6 – Ineffective Assistance of Counsel
As his final ground for habeas relief, Willoughby argues that his trial counsel
provided ineffective assistance under the standard set forth by the Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984). Willoughby raised this claim with the
Fayette Circuit Court in his Cr. 11.42 motion, and then on appeal to the Kentucky Supreme
Court. It was denied at each stage of the state post-conviction proceedings.
Willoughby presented several challenges to his counsel’s effectiveness as a single
claim in his CR 11.42 proceeding. However, for convenience of the court, Willoughby
presented the various challenges as three separate claims on appeal to the Kentucky
Supreme Court. This Court will review each of those separate claims in turn.
A.

Applicable Law

The Sixth Amendment guarantees criminal defendants the right to counsel, which
protects the fundamental right to a fair trial. Strickland, 466 U.S. 668 (1984). For that
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reason, the Supreme Court “has recognized that ‘the right to counsel is the right to the
effective assistance of counsel.’” Id. at 686 (quoting McMann v. Richardson, 397 U.S. 759,
771, n. 14 (1970)). It is not enough for “a person who happens to be lawyer [to be] present
at trial alongside the accused. Id.
“The benchmark for judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.”

Id. at 686. To prevail on an

ineffective assistance of counsel claim, the convicted defendant must set forth facts to
satisfy a two-part test. Id. at 687.
First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes both showings, it cannot be said
that the conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
Id. at 687.
To prevail on the first prong of the Strickland test, the defendant must demonstrate
that “counsel’s representation ‘fell below an objective standard of reasonableness.’”
Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 687). The
Supreme Court has not articulated specific guidelines for appropriate attorney conduct “and
instead [has] emphasized that ‘the proper measure of attorney performance remains simply
reasonableness under prevailing professional norms.’” Id. (quoting Strickland, 466 U.S. at
688). The Court must also avoid second-guessing counsel’s assistance after conviction
. . ., “[as] it is all too easy for a court, examining counsel’s defense after it proved to be
80

unsuccessful, to conclude that a particular act or omission was unreasonable.” Strickland,
466 U.S. at 689. Counsel’s performance shall not be judged with the “distorting effects of
hindsight.” Id. Instead, the Court must “reconstruct the circumstances of counsel’s
challenged conduct, and . . . evaluate the conduct from counsel’s perspective at the time.”
Id. In order to avoid the temptations of second-guessing, “[a] court considering a claim of
ineffective assistance must apply a ‘strong presumption’ that counsel’s representation was
within the ‘wide range’ of reasonable professional assistance.” Harrington v. Richter, 131
S.Ct. 770, 787 (2011).
To satisfy the prejudice prong of the Strickland test, the defendant must establish
“a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
The Supreme Court, however, has moved away from analyzing the prejudice prong
purely from an outcome-determinative standpoint. In Lockhart v. Fretwell, 506 U.S. 364,
369-70 (1993), the Court emphasized that “an analysis focusing solely on mere outcome
determination, without attention to whether the result of the proceeding was fundamentally
unfair or unreliable, is defective.” “To set aside a conviction or sentence solely because
the outcome would have been different but for counsel’s error may grant the defendant a
windfall to which the law does not entitle.” Id. Rather, the reviewing courts should give
attention to “whether the result of the proceeding was fundamentally unfair or unreliable.”
Id. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686.
81

The Supreme Court has recently clarified that “[s]urmounting Strickland’s high bar
is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). “[T]he Strickland
standard must be applied with scrupulous care, lest ‘intrusive post-trial inquiry’ threaten the
integrity of the very adversary process the right to counsel is meant to serve.” Harrington,
131 S.Ct. at 788. “Even under de novo review, the standard for judging counsel’s
representation is a most deferential one.” Id.
On habeas review, the standard for establishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is “all the more difficult.” Id. In Harrington
v. Richter, the Supreme Court recently emphasized the highly deferential standard for
analyzing an ineffective-assistance claim on habeas review:
The standards created by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review is doubly so. The
Strickland standard is a general one, so the range of reasonable applications
is substantial. Federal habeas courts guard against the danger of equating
unreasonableness under Strickland with unreasonableness under § 2254(d).
When § 2254(d) applies, the question is not whether counsel’s action were
reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.
Id. (internal quotations omitted).
B.

Sub-claim A: Ineffective assistance for calling Dr. Schwartz to testify

Willoughby argues his counsel was ineffective for calling Dr. Charles Schwartz, a
psychiatrist, to testify on his behalf during the guilt phase of his trial.

At the CR 11.42

hearing, Willoughby’s counsel, Mr. Joe Jarrell, testified that he called Schwartz to testify
about Willoughby’s alleged intoxication at the time of his crimes. He hoped the testimony
would support either an intoxication defense or, at a minimum, provide mitigating evidence
at sentencing.

82

Dr. Schwartz initially observed Willoughby to determine whether he was competent
to stand trial. During the observation, Willoughby explained to Dr. Schwartz that he had
consumed a number of drugs over the course of four or five days leading up to the
murders. In a report to the trial court, Dr. Schwartz opined that Willoughby was competent
to stand trial, and that Willoughby’s use of drugs and alcohol leading up to the murders had
not substantially impaired his level of consciousness or his cognitive faculties. Finally, Dr.
Schwartz diagnosed Willoughby as having anti-social personality disorder.
Despite Dr. Schwartz’s initial report, Jarrell made the decision to call the doctor to
testify on Willoughby’s behalf.

As Jarrell explained at the CR 11.42 hearing, Jarrell

provided the doctor with additional information subsequent to the competency report on
Willoughby’s drug consumption leading up to the murders. Based on conversations with
the doctor, Jarrell believed that the doctor had changed his mind concerning Willoughby’s
cognitive abilities on the day of the murders.
On direct examination at trial, Dr. Schwartz testified that Willoughby exhibited
symptoms of drug and alcohol withdrawal upon his arrest, and was treated for those
symptoms. Dr. Schwartz also recounted a number of drugs that Willoughby said he took
shortly before committing the murders. Finally, in an attempt to establish that Willoughby
was still intoxicated at the time of the murders, Dr. Schwartz was asked two hypothetical
questions on whether an individual would experience residual effects from consuming
various combinations of drugs and alcohol over a four to five day period. He answered
both questions affirmatively.
On cross-examination, the prosecutor asked Dr. Schwartz about his initial opinion
on Willoughby’s cognitive abilities on the day of the crime. Dr. Schwartz testified that he
83

had previously formed the opinion that Willoughby’s cognitive abilities and level of
consciousness on the day of the murders were not substantially impaired by the drugs and
alcohol he consumed. The prosecutor also asked Dr. Schwartz about his report, wherein
he opined that Willoughby had anti-social personality disorder. The prosecutor then asked
Dr. Schwartz to generally discuss anti-social personality disorder. Dr. Schwartz explained
that the disorder was very difficult to treat and involved characteristics such as lack of
remorse and manipulative behavior.
At the CR 11.42 hearing, Jarrell admitted that Dr. Schwartz’s testimony “wasn’t as
strong as [he] thought it was going to be on intoxication.” (VE 2/11/98 9:22:40). Jarrell was
aware of Dr. Schwartz’s initial opinion that Willoughby’s cognitive abilities were not
substantially impaired, but Jarrell believed that Dr. Schwartz had since changed his mind.
Jarrell admitted, however, that Dr. Schwartz “threw in” his diagnosis of Willoughby as a
socio-path on the fly. Jarrell called the diagnosis a “surprise,” which he had not seen in the
medical reports.
Willoughby argues that Dr. Schwartz’s testimony was particularly prejudicial to his
other mitigating evidence, and that Jarrell was ineffective for calling the doctor to testify.
According to Willoughby, even if the doctor would have changed his mind about
Willoughby’s intoxication, the prosecutor would have been able to impeach the doctor
based on his initial report. Any expected benefit from the doctor’s testimony would have
therefore been lost on cross-examination. More importantly, Willoughby contends that
Jarrell should not have been blind-sided by Dr. Schwartz’ sociopath diagnosis because it
was contained in his initial report, and that Willoughby should not have called Dr. Schwartz
to prevent the diagnosis from being revealed to the jury.
84

1.

State Court Decision

The Kentucky Supreme Court adjudicated this claim on its merits, stating:
Willoughby argues that his counsel was ineffective because he called Dr.
Charles Schwartz to testify during the guilt phase of the trial. Among the
reasons he presents is that his counsel was a victim of burnout because of
overwhelming caseload. The circuit judge decided against such a theory
noting that, among other things, the testimony from defense counsel
indicated that he had adequate time to prepare for the case. An examination
of the record indicates that the caseload was lightened when he was
assigned this case; that he had every afternoon available to work on the
case; that he had exclusive use of an investigator; and that he went to the
DPA offices to discuss the case and review their materials.
The allegations of the overload of cases must be considered in the context
of the 1983 trial. Trial counsel indicated that it was much tougher to get
experts in 1983 as compared to 1998. He was able to hire Dr. Robert
Granacher who was a well known forensic psychiatrist frequently referred to
as the “best in the field” with specific “expertise” in drug problems. Dr.
Granacher had a reputation for being a good defense witness. Unfortunately
for Willoughby, the testing done by Dr. Granacher did not yield favorable
results. He was not called to testify, largely because he confirmed the
conclusion of Dr. Schwartz that Willoughby suffered from antisocial
personality disorder and that he could conform his conduct to the law on the
day of the shootings. In addition, Dr. Granacher found no mental illness or
biological condition that could be used as a defense.
It was not unreasonable for trial defense counsel to call Schwartz as a
witness. No prejudice arose from the testimony on cross-examination
regarding the personality disorder. The personality evidence was cumulative
because Willoughby himself testified that he was discharged from the Navy
because of “unsuitability, personality disorder.” A second psychiatrist, Dr.
Atcher, testified in the mitigation phase of the trial. He was cross-examined
by the Commonwealth and also gave clinical information regarding the
anti-social personality disorder.
At trial, Dr. Schwartz provided favorable testimony. The testimony of Dr.
Schwartz regarding intoxication at the time of the arrest complimented
testimony from Willoughby, law enforcement and jail personnel. Trial counsel
admitted that the testimony of Dr. Schwarz regarding intoxication was not as
strong as he had hoped as compared to the pretrial interview.
The contention that trial counsel overlooked the diagnosis of Dr. Schwartz
regarding personality disorder is without merit. There is no doubt that counsel
85

realized that his client had personality problems. Moreover, Willoughby's
mother also testified that she gave defense counsel the Navy discharge
paperwork which reflected some personality disorders.
The mere fact that the Schwartz testimony was not as helpful as counsel may
have hoped is not the basis for relief. Based on his analysis of the interview,
trial counsel determined that Schwartz would give valuable testimony. Such
a decision was reasonable and is particularly understandable insofar as the
pretrial interview was more favorable than the testimony at trial.
Any complaint that defense counsel should be found ineffective simply
because a witness does not ultimately testify as favorably as when that
witness was interviewed prior to trial is not required by Strickland. Here,
counsel reasonably investigated the entire matter and made a strategic
choice to call the witness. He was not ineffective.
Defense counsel made a reasonable investigation and a strategically correct
selection to call Dr. Schwartz in regard to the intoxication defense theory and
mitigator in this case. It is not ineffective assistance simply because some of
the testimony contains unfavorable information. See Bunch v. Thompson,
949 F.2d 1354 (4th Cir.1991).
Willoughby v. Commonwealth, Nos. 2005-SC-0115-MR, 2006 WL 3751392, at *3-4 (Ky.
Dec. 21, 2006).
Willoughby argues that the Kentucky Supreme Court’s decision was an
unreasonable determination of the facts, entitling him to relief under § 2254(d)(2).
Additionally, Willoughby asserts that the decision was an unreasonable application of
Strickland and he is, therefore, entitled to relief under § 2254(d)(1). The Court will address
each claim of error in turn.
2.

Unreasonable determination of facts

Willoughby has established by clear and convincing evidence that the Kentucky
Supreme Court made an unreasonable determination of fact in light of the evidence
presented at the CR 11.42 hearing. The Kentucky Supreme Court stated:

86

The contention that trial counsel overlooked the diagnosis of Dr. Schwartz
regarding personality disorder is without merit. There is no doubt that
counsel realized that his client had personality problems. Moreover,
Willoughby’s mother also testified that she gave defense counsel the Navy
discharge paperwork which reflected some personality disorders.
Willoughby, 2006 WL 3751392, at *4.
The Kentucky Supreme Court’s finding is in conflict with Jarrell’s testimony at the CR
11.42 hearing. Jarrell testified that he was surprised when Dr. Schwartz’ testified that he
diagnosed Willoughby as a sociopath. Jarrell explained that he had not seen that diagnosis
in any report nor had Dr. Schwartz mentioned the diagnosis during their discussion. As
Jarrell stated, “[Dr. Schwartz] threw it in” on the stand. (VE 2/11/98 9:22:40). This
testimony directly conflicts with the Kentucky Supreme Court’s finding that “[t]he contention
that trial counsel overlooked the diagnosis of Dr. Schwartz regarding personality disorder
is without merit.” See Willoughby, 2006 WL 3751392, at *4.
Despite the Kentucky Supreme Court’s unreasonable determination of fact,
Willoughby is not entitled to habeas relief under § 2254(d)(2). Habeas relief is not
warranted simply because the prisoner has established that the state court made a factual
error. Instead, as the plain text of § 2254(d)(2) makes clear, the state court’s adjudication
must have been “based on” the unreasonable determination of facts.

28 U.S.C. §

2254(d)(2); Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011) (“[I]t is not enough or the
petitioner to show some unreasonable determination of fact; rather, the petitioner must
show that the resulting state court decision was ‘based on’ that unreasonable
determination”); see also Wiggins v. Smith, 539 U.S. 510, 551-52 (2003) (Scalia, J.
dissenting) (stating that § 2254(d)(2) requires that the unreasonable determination of facts
be one on which the state-court decision was based). The Kentucky Supreme Court’s
87

ultimate adjudication of this claim was not “based on” the factual error.
The factual error certainly played a role in Kentucky Supreme Court’s decision on
the first prong – deficient performance. But the test under § 2254(d)(2) is whether the
adjudication of the claim was based on the factual error.

After finding that it was

reasonable for counsel to call Dr. Schwartz, the Kentucky Supreme Court moved on to
consider whether Willoughby met the second prong of the Strickland test. The court found
that Dr. Schwartz’s testimony was cumulative of other evidence presented at trial and,
therefore, Willoughby was not prejudiced by the doctor’s testimony. Even if the state court
had correctly concluded that Jarrell was not aware of Dr. Schwartz’ sociopath diagnosis,
that fact would have had no bearing on the prejudice prong. As a result, it cannot be said
that the Kentucky Supreme Court’s decision was “based on” an unreasonable
determination of facts under § 2254(d)(2).
3.

Unreasonable application of federal law

The Kentucky Supreme Court did not unreasonably apply clearly established federal
law in concluding that Willoughby was not prejudiced by his counsel’s decision to call Dr.
Schwartz to testify. As the Kentucky Supreme Court appropriately held, Dr. Schwartz
provided favorable testimony on direct examination. He testified that Willoughby was
treated for symptoms of drug and alcohol withdrawal shortly after his arrest. The doctor
also testified that Willoughby told him about his heavy drug use leading up to the murders,
which included use of cocaine and tussionex in combination with alcohol. Finally, the
doctor verified that a person of Willoughby’s size who heavily consumed drugs and alcohol
over four or five days would suffer residual intoxication for a period of time. This testimony
corroborated Willoughby’s own testimony about his drug use and supported his intoxication
88

defense.
Willoughby contends that the positive effects of this testimony were entirely lost on
cross-examination. Specifically, Willoughby points to Dr. Schwartz’ testimony regarding his
initial opinion of Willoughby’s cognitive faculties at the time of the murders. Dr. Schwartz
confirmed that he initially opined that Willoughby’s cognitive faculties were not substantially
impaired on the day of the murders by his consumption of drugs and alcohol. This
testimony was certainly not favorable to Willoughby’s intoxication defense. However, in
analyzing this ineffective assistance claim, the Court must not consider whether Willoughby
might have been more successful on his intoxication defense had Dr. Schwartz not
testified. See Lockhart, 506 U.S. at 842. Instead, the question is whether the testimony
rendered Willoughby’s trial fundamentally unfair or unreliable. Id. Willoughby has not
addressed that specific question. Although Dr. Schwartz’s testimony was not as strong as
Willoughby hoped, counsel had good reason to call the doctor to testify in furtherance of
the intoxication defense, and the doctor did provide some favorable testimony on the
matter. The fact that Dr. Schwartz was effectively cross examined does not alter that fact.
Therefore, the Court cannot say that the Kentucky Supreme Court unreasonably applied
federal law in concluding that this testimony did not render Willoughby’s trial fundamentally
unfair.
Willoughby also challenges the Kentucky Supreme Court’s conclusion that his trial
was not rendered fundamentally unfair by Dr. Schwartz’s testimony that Willoughby was
a sociopath. The Kentucky Supreme Court held that this evidence was cumulative to other
evidence offered at trial, including Willoughby’s own testimony that he was discharged from
the Navy because of “unsuitability, personality disorder,” and was therefore not prejudicial.
89

“Cumulative evidence” is defined as “additional evidence that supports a fact established
by existing evidence.” Black’s Law Dictionary 596 (8th ed. 1999). Willoughby did, in fact,
testify that he was discharged from the Navy for “unsuitability, personality disorder,” though
he did not discuss the exact nature of the personality disorder. While Dr. Schwartz’s
diagnosis that Willoughby was a sociopath was more specific than Willoughby’s testimony,
reasonable jurists could certainly disagree whether Dr. Schwartz’s testimony was
cumulative.

Therefore, the Court cannot say that the Kentucky Supreme Court

unreasonably applied clearly established federal law.
The Kentucky Supreme Court’s decision that Dr. Schwartz’s testimony was
cumulative is supported by other evidence introduced at trial, though not specifically
mentioned by the Kentucky Supreme Court. Dr. Schwartz’s report, containing his opinion
that Willoughby was a sociopath, was already in the record at the time he testified. The
report had been admitted through a prior witness as part of Willoughby’s Detention Center
Infirmary medical records.10 Dr. Schwartz’s testimony was undoubtedly cumulative to his
report, and Willoughby has not challenged that the report was improperly admitted into
evidence. Even if Dr. Schwartz had not testified, his opinion that Willoughby was a
sociopath was already before the jury. As a result, it was both reasonable and proper for
the Kentucky Supreme Court to conclude that Dr. Schwartz’s testimony was cumulative to
other evidence introduced at trial. The Kentucky Supreme Court, therefore, reasonably
applied federal law in holding that Willoughby’s trial was not rendered fundamentally unfair
by Dr. Schwartz’s testimony.

10

Willoughby admits in his habeas petition that Dr. Schwartz’s report was already admitted
as evidence when he testified. (Doc. # 7 at 70).
90

None of the cases cited by Willoughby compel a different result. Willoughby relies
on Miller v. Anderson, 255 F.3d 455 (7th Cir. 2001), a case in which the Seventh Circuit
found that counsel provided ineffective assistance by calling a psychologist to testify that
the defendant was incapable of the kind of violence that had been perpetrated against the
victim, which opened the door for the prosecution to discuss the defendant’s prior
kidnaping, rape and sodomy convictions. The Seventh Circuit’s decision has since been
vacated by subsequent order, Miller v. Anderson, 268 F.3d 485 (7th Cir. 2001), and,
therefore, provides no precedential value.
Willoughby’s reliance on Freeman v. Class, 95 F.3d 639 (8th Cir. 1996) is likewise
misplaced. In Freeman, defense counsel introduced a police statement which contained
hearsay evidence suggesting that the defendant stole a vehicle. Freeman, 95 F.3d at 64243. There was little other evidence to establish that the defendant was guilty of the crime.
The Eight Circuit found that defense counsel’s conduct was both unreasonable and
prejudicial because “there [was] reasonable probability that, absent this error, the jury
would have had reasonable doubt respecting Freeman’s guilt.” Id.
Unlike the evidence admitted in Freeman, Dr. Schwartz’s testimony did not add
anything that was not already in the record. As previously stated, Dr. Schwartz’s report
was already in the record when he testified.

Willoughby has not objected to the

admissibility of the report. Within that report, Dr. Schwartz opined that Willoughby’s
cognitive abilities were not substantially impaired by his intoxication, and that Willoughby
was a sociopath. Thus, unlike Freeman, other admissible evidence established the same
facts that Dr. Schwartz’s testified to.

91

Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000), another case cited by Willoughby, is
also inapposite. In Combs, defense counsel called an expert to testify that the defendant
was too intoxicated to form the intent to kill. Combs, 205 F.3d at 288. The expert testified
that the defendant was intoxicated, but that he also could form the intent to kill. Id. The
Sixth Circuit found it objectively unreasonable that defense counsel did not fully investigate
the expert’s opinion before calling him to the stand, and found the testimony prejudicial
because it single-handedly negated all other intoxication evidence.
In contrast to Combs, Willoughby’s counsel, Mr. Jarrell, did investigate Dr.
Schwartz’s opinion on a possible intoxication defense. Though Dr. Schwartz originally
opined that Willoughby was not substantially impaired, subsequent conversations with Dr.
Schwartz led Jarrell to believe he had changed his mind. Counsel in Combs did not take
this precaution. Moreover, Combs provides little support for the assertion that the trial was
rendered fundamentally unfair by Dr. Schwartz’s testimony on his psychological diagnosis
of Willoughby. Although the evidence was damaging to Willoughby, unlike Combs, the
evidence was already properly before the jury and Dr. Schwartz’s testimony was merely
redundant.
In the end, Willoughby has not established, nor does the Court find that the
Kentucky Supreme Court’s decision was an unreasonable application of clearly established
federal law. Willoughby is not entitled to habeas relief on this sub-claim
C.

Sub-claim B: Ineffective assistance for failing to investigate and
present mitigating evidence

Willoughby argues that his counsel failed to properly investigate and present readilyavailable mitigating evidence. More particularly, Willoughby contends that his counsel

92

should have documented a social history, which would have included school records,
military records, mental health records, records of prior offenses, prison records, and
medical records. By failing to investigate and present this social history, Willoughby asserts
that his counsel failed to meet the prevailing professional norms as outlined in the American
Bar Association’s standards for counsel in death penalty cases. Willoughby contends that
counsel’s allegedly inept investigation deprived him of a fair trial because it prevented the
jury from considering relevant mitigating evidence which would have likely caused at least
one juror to reach a different sentencing verdict.
1.

State Court Decision

The Kentucky Supreme Court denied this claim on the merits, stating:
Willoughby now contends that his defense counsel inadequately prepared
and investigated the mitigation phase of the case. He alleges that defense
counsel did not begin preparing for mitigation until conviction and that he did
not investigate the defendant's life history.
Willoughby asserts that his attorney inadequately investigated and prepared
the mitigation case. His complaint is based almost entirely on part of an
answer from the ineffectiveness hearing. He argues that trial counsel testified
that he did not begin to prepare for mitigation of penalty in Willoughby's trial
until after the jury convicted. This statement was taken out of context in
argument and ignores other parts of the testimony by trial counsel. The
record clearly demonstrates that this contention is without merit. Defense trial
counsel's statement was in effect that he placed as much mitigation evidence
as possible into the guilt phase. As noted in Harper v. Commonwealth, 978
S.W.2d 311 (Ky.1998), when a jury sits in both phases of a capital murder
trial, all evidence introduced in the guilt phase may be considered by the jury
during the penalty phase. Trial counsel observed that his goal in the case
was first to get a sentence less than death. In his four previous capital cases,
this strategy had been successful. In 1983, it was a common practice to
introduce mitigation evidence in this manner. It should be obvious that trial
counsel did not wait until the penalty phase to prepare for the mitigation of
the penalty. There is no basis for an ineffective assistance of counsel claim.
Evidence was presented in both the penalty and mitigation phases in regard
to intoxication, self-defense, emotional disturbance, mental state/depression,
93

youth, remorse, good family and lack of sleep. A careful examination of the
record indicates that the defense counsel at trial put forth one of the best
possible mitigation cases that was available to him.
Willoughby also maintains that additional mitigation evidence should have
been presented. The majority of the alleged additional evidence is from
interview summaries attached to the CR 59.05 motion after the denial of the
RCr 11.42 motion. As such, the motion did not present a proper basis for a
grant of relief pursuant to CR 59.05. See Gullion v. Gullion, 163 S.W.3d 888
(Ky.2005). The witness summaries were comprised essentially of
communications to DPA counsel, all without the benefit of cross-examination
or any analysis as to the potential unfavorable testimony within the
summaries. These summaries were not presented at the RCr 11.42 hearing
and do not indicate any misdeed by defense trial counsel in not presenting
these witnesses. See Tinsley v. Million, 399 F.3d 796 (6th Cir.2005). The
so-called life history documents were also simply attached to the CR 59.05
motion and never presented at the RCr 11.42 hearing.
We must conclude the trial counsel was not ineffective in presenting
mitigating evidence. Strickland does not require counsel to investigate every
conceivable line of mitigating evidence no matter how unlikely the effort
would be to assist the defendant at sentencing. Nor does Strickland require
defense counsel to present mitigating evidence at sentencing in every case.
Wiggins v. Smith, 539 U.S. 510 (2003).
A reasonable investigation is not one that the best defense lawyer blessed
with not only unlimited time and resources, but also the inestimable benefit
of hindsight would conduct. See Baze v. Commonwealth, 23 S.W.3d 619
(Ky.2000). In any event, decisions relating to witness selection are normally
left to the judgment of counsel and will not be second-guessed by hindsight.
See Foley v. Commonwealth, 17 S.W.3d 878 (Ky.2000); Morrow, 977 F.2d
at 222. The true test is whether the performance by defense counsel is so
deficient that it renders the result unreliable. See Darden v. Wainwright, 477
U.S. 168 (1986).
Here, the evidence claimed by Willoughby as additional mitigation was
cumulative to the central mitigation issues. Presentation of a social life history
would have created not only duplicitous and cumulative evidence. Defense
trial counsel was not deficient in his performance and was not ineffective in
the investigation and presentation of mitigation evidence.
Willoughby, 2006 WL 3751392, at *4-5.

94

Willoughby argues that the Kentucky Supreme Court erred in two respects, each of
which provide an independent basis for habeas relief. First, Willoughby asserts that he is
entitled to relief under § 2254(d)(2) because the court

made an unreasonable

determination of facts in concluding that portions of the additional mitigating evidence was
cumulative. Second, Willoughby contends the Kentucky Supreme Court unreasonably
applied Strickland in holding that defense counsel was not ineffective in presenting
mitigating evidence. As explained below, neither of Willoughby’s contentions have merit.
2.

Unreasonable determination of facts

Willoughby contends that the Kentucky Supreme Court made an unreasonable
determination of fact in denying this claim. During his post-conviction proceedings,
Willoughby presented additional mitigating evidence that he argues his counsel should
have presented at trial. The Kentucky Supreme Court found that the additional mitigating
evidence was “cumulative to the central mitigating evidence.” Willoughby, 2006 WL
3751392, at *5.
Willoughby asserts that this finding is unreasonable in two principal ways. First,
there was limited evidence about the depth and severity of his psychological problems
introduced at trial. However, at Willoughby’s CR 11.42 hearing, Dr. Peter Schilling, a
psychologist, testified about Willoughby’s various “mental deficits,” as Willoughby has
described them. Of particular importance, Schilling testified that Willoughby had been
tested to have an I.Q. of 79 when he was nine years old, which placed Willoughby in the
borderline range of intelligence. Schilling also stated that Willoughby had been discharged
from the Navy for enuresis or bed-wetting. Finally, Schilling opined that Willoughby
suffered from Attention Deficit Hyperactivity Disorder. According to Willoughby, none of
95

these facts were introduced at trial and could not have been cumulative of other mitigating
evidence.
Willoughby also argues that no evidence of his good behavior as an inmate was
introduced at trial. During post-conviction proceedings, Willoughby presented records from
the Kentucky Correctional Psychiatric Center which made some favorable statements. In
particular, Willoughby points to a Progressive Incarceration Plan, dated October 31, 1979,
which gave Willoughby a “glowing recommendation.” According to Willoughby, the report
indicated that he was “such a good inmate/employee at the Horse Park that the Deputy
Commissioner of Kentucky Parks would not have hesitated hiring him.” (Doc. # 7 at 23).
Because none of this mitigating evidence was introduced at trial, Willoughby asserts that
the Kentucky Supreme Court erred in finding that the evidence was cumulative.
Neither of these arguments demonstrate by clear and convincing evidence that the
Kentucky Supreme Court made an unreasonable determination of fact. See 28 U.S.C. §
2254(d)(2). “The question under AEDPA is not whether a federal court believes the state
court’s determination was incorrect but whether that determination was unreasonable – a
substantially higher threshold.”

Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

Willoughby has failed to meet this higher standard because evidence similar to Dr.
Schilling’s testimony and the Progressive Incarceration Plan was offered at trial.
At the CR 11.42 hearing, Dr. Schilling offered specific details about Willoughby’s low
I.Q. and learning disabilities. Similar evidence was offered at trial. Willoughby’s mother
testified that he was “slow to learn” and that “his IQ was below average.” (TE 2347, 2350).
Dr. Schilling also opined during the CR 11.42 hearing about the reason why Willoughby
was discharged from the Navy. However, this was also explained at trial. Willoughby
96

testified that he was discharged for “unsuitability, personality disorder” after the Navy
conducted a battery of psychological tests on him.11 (TE 1906). Although every detail of
mitigation evidence offered by Dr. Schilling at the 11.42 hearing was not introduced at trial,
the evidence was sufficiently similar to that offered at trial such that this Court cannot say
the Kentucky Supreme Court unreasonably determined that the evidence was cumulative.
Likewise, character evidence in the Progressive Incarceration Plan was duplicitous
to character evidence offered at trial. Although there was no evidence offered at trial about
Willoughby’s character while incarcerated, several witnesses testified that Willoughby
exhibited similar characteristics throughout his life.

For example, the Progressive

Incarceration Plan praised Willoughby as a “good inmate” and extolled his work ethic. At
trial, several witnesses, including Willoughby, testified that he worked extensively in
carpentry, setting tile and remodeling. Susan Hutchens and Ray Penrod both praised
Willoughby’s work ethic. In fact, Penrod described Willoughby as “an awful good worker.”
(TE 1246). Other witnesses described Willoughby as “cooperative with anybody,” would
“help any body out,” “never [try] to start no trouble,” showed “no meanness,” “very loving,”
and a good friend, among many other positive qualities. (TE 2356-2357, 2353). This
testimony was certainly consistent with the evidence in the Progressive Incarceration Plan
about Willoughby’s character. As a result, the Kentucky Supreme Court reasonably found
that this evidence was cumulative to other mitigation evidence offered at trial. Willoughby
is not entitled to habeas relief under § 2254(d)(2) on this claim.

11

In fact, Dr. Schilling’s explanation for Willoughby’s discharge is in direct conflict with
Willoughby’s own explanation. Dr. Schilling opined that Willoughby was discharged because of
enuresis or bed-wetting. Willoughby, however, explained that he was discharged for “unsuitability,
personality disorder.”
97

3.

Unreasonable application of federal law

Willoughby also argues that the Kentucky Supreme Court erred in holding that trial
counsel was not ineffective in preparing for the mitigation phase of his trial. The Kentucky
Supreme Court addressed the effective representation prong of the Strickland test at
length; it is, therefore, entitled to deferential review under § 2254(d)(1). However, because
the Kentucky Supreme Court did not address the prejudice prong of Strickland, the Court
must review that prong de novo. Rayner v. Mills, 685 F.3d 631, 638 (6th Cir. 2012);
Rompilla v. Beard, 545 U.S. 374, 390 (2005) (“Because the state courts found the
representation adequate, they never reached the issue of prejudice, and so we examine
this element of the Strickland claim de novo.”).
Willoughby contends that his counsel was ineffective because he spent little time
preparing for the mitigation phase of the trial, and because he failed to thoroughly
investigate and offer details about Willoughby’s psychological and mental struggles, his
poor performance in school, and his prior correctional experience.

Willoughby

acknowledges that counsel presented some evidence about most of these topics, but he
argues that counsel failed to fully develop these areas of mitigation.

According to

Willoughby, “[t]he jury knew [he] was a slow learner but not how slow. The jury knew he
was depressed. The jury knew he was discharged from the Navy but not the reason why,
and that he was in a car accident.” (Doc. # 7 at 75). However, Willoughby contends that
because counsel did not access many available records, “counsel was unable to present
and explain to the jury the significance of all the available mitigation evidence.” (Id. at 76).
In light of these alleged investigative shortcomings, Willoughby asserts that his counsel
provided constitutionally ineffective assistance and that the Kentucky Supreme Court
98

unreasonably applied clearly established federal law in holding to the contrary.
“Counsel’s constitutional duty to investigate a defendant’s background in preparation
for the sentencing phase of a capital trial is ‘well-established.’” Harries v. Bell, 417 F.3d
631, 637 (6th Cir. 2005) (quoting Coleman v. Mitchell, 268 F.3d 417, 449 (6th Cir. 2001)).
Where the defendant challenges that counsel’s investigation was incomplete, as
Willoughby asserts here, the relevant inquiry is whether “reasonable professional judgment
support[ed] the limitation on investigation.” Strickland, 466 U.S. at 690-91. “In other words,
counsel has a duty to make reasonable investigations or to make a reasonable decision
that makes a particular investigation unnecessary.” Id. at 691.
The American Bar Association’s standards for capital defense work provides a guide
to determining whether an investigation was reasonable. Wiggins, 539 U.S. at 524. Those
standards “provide that investigations into mitigating evidence ‘should comprise efforts to
discover all reasonably available mitigating evidence and evidence to rebut any aggravating
evidence that may be introduced by the prosecutor.’” Id. (quoting ABA Guidelines for the
Appointment and Performance of Counsel in Death Penalty Cases 11.4.1©, p. 93 (1989)
(emphasis added)). Areas of investigation should include medical history, educational
history, employment and training history, family and social history, prior adult and juvenile
correctional experience, and religious and cultural influence. Id. (citing ABA Guidelines for
the Appointment and Performance of Counsel in Death Penalty Cases 11.8.6, p. 133).
While the ABA guidelines provide a metric by which counsel’s investigation may be
judged, the Supreme Court reminds that “the duty to investigate does not force defense
lawyers to scour the globe on the off chance something will turn up.” Rompilla v. Beard,
545 U.S. 374, 382-83 (2005). Instead, the investigation, and decision to not pursue a line
99

of investigation must be reasonable.

Strickland, 466 U.S. at 691.

“A reasonable

investigation is not . . . the investigation that the best criminal defense lawyer in the world,
blessed not only with unlimited time and resources but also with the inestimable benefit of
hindsight, would conduct.” Thomas v. Gilmore, 144 F.3d 513, 515 (7th Cir. 1998).
Applying the doubly deferential standard of Strickland and AEDPA, Willoughby has
not shown that the Kentucky Supreme Court unreasonably applied federal law in holding
that his counsel was not ineffective in investigating and presenting mitigating evidence. As
he argued to the Kentucky Supreme Court, Willoughby begins his argument by asserting
that his counsel spent inadequate time preparing for the mitigation phase. He bases this
argument on counsel’s admission during the CR 11.42 hearing that he did not begin
preparing for the sentencing phase of trial until the guilt phase was completed. However,
as the Kentucky Supreme Court recognized, Willoughby takes his counsel’s admission out
of context. Willoughby apparently attempts to equate preparation with investigation. As
Willoughby’s counsel, Mr. Jarrell, explained he did not begin to think about “outlining” his
sentencing-phase case until after the guilt phase.

But Jarrell also explained that he

presented as much mitigation evidence as possible during the guilt phase.

This

demonstrates that Jarrell began investigating mitigation evidence long before the guilt
phase ended.
Willoughby’s second point of contention is that Jarrell failed to fully investigate and
present evidence on his psychological problems, struggles in school, prior behavior as an
inmate, and good work ethic. The question, though, is not whether Jarrell exhaustively
investigated these areas, but whether he conducted a reasonable investigation and made
a reasonable decision to investigate no further. Strickland, 466 U.S. at 691.
100

Jarrell did investigate and present evidence about Willoughby’s psychological
problems. For example, Willoughby testified that he was discharged from the Navy for
“unsuitability, personality disorder,” and described his struggle with depression, which
included feelings of sadness, hopelessness and like “nothing matters no more. (TE 1906,
1909). Willoughby also described extensive drug and alcohol use, which clouded his
perception and caused him to lose sleep. This testimony was verified by several witnesses,
including Marsha Willoughby, Susan Hutchens, Leif Halvorsen, Dr. Charles Schwartz, and
jail personnel.
Jarrell also discussed Willoughby’s psychological condition with two doctors. Dr.
Charles Schwartz verified that Willoughby suffered from depression and insomnia (TE
1858-1859), but opined that Willoughby was also competent to stand trial. Willoughby’s
family also gathered enough resources to hire Dr. Robert Granacher, a forensic
psychologist, to conduct psychological tests on him. Jarrell chose Dr. Granacher because
he had a reputation for being a favorable defense witness. However, after conducting a
full day of testing, Dr. Granacher advised Jarrell that he would not be a favorable witness
at trial. Dr. Granacher believed that Willoughby had anti-social personality, found no illness
or biological condition that could be used as a defense, and found that Willoughby had a
lower I.Q. but was not mentally retarded.
Willoughby contends that meeting with two doctors was not enough. According to
Willoughby, Jarrell also should have gathered records from the Kentucky Correctional
Psychiatric Center (“KCPC”), which provided further details about his psychological
problems. In addition, Willoughby contends that Jarrell should have met with and called
a psychologist from KCPC to testify in furtherance of the records. The records were
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generated as part of a previous criminal proceeding involving Willoughby. They stated that
Willoughby’s overall functioning was in the dull-normal range with verbal abilities in the
borderline mentally retarded range. The records also described him as being mildly nonconformist, and having difficulty controlling his temper at times. Finally, the records
explained that Willoughby suffered from headaches as a result of a car accident, which
made it difficult for him to concentrate and caused him to smoke marijuana to relieve the
pain. These records, according to Willoughby, were readily available and would have
provided favorable mitigation evidence.
Despite the “readily available” nature of these records, the Kentucky Supreme Court
did not unreasonably apply federal law in concluding that Jarrell made a reasonable
decision to investigate Willoughby’s psychological condition no further. Jarrell sought the
advice and expert assistance of a psychologist known within the Fayette County legal
community to be a favorable defense witness. That psychologist opined that Willoughby
did not suffer from a psychological condition or diminished intelligence that would support
a viable defense at trial.

This opinion gave Jarrell “good reason to think further

investigation would be a waste of time.” Rompilla v. Beard, 545 U.S. 374, 383 (2005)
(citing Wiggins v. Smith, 539 U.S. at 525 (holding that further investigation excusable where
counsel has evidence suggesting it would be fruitless)). As such, it was reasonable for him
to investigate no further.
Additionally, neither of the cases cited by Willoughby to support this claim compel
a different conclusion. In Glenn v. Tate, 71 F.3d 1204 (6th Cir. 1995), the Sixth Circuit
found that counsels’ representation was ineffective because they entirely failed to present
“information on [the defendant’s] history, character, background and organic brain
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damage.” Id. at 1207. Defense counsel completely failed to present any evidence
describing the defendant as “slow,” or having an I.Q. score that placed him “within the
Mental Defective range,” or any other similar evidence, although it was readily available.
Id. at 1208. Defense counsel also failed to present any evidence on the defendant’s brain
damage. Id.
Harris ex rel Ramseyer v. Wood, 64 F.3d 1432 (9th Cir. 1995), another case cited
by Willoughby, is much like Glenn. In that case, defense counsel entirely failed to prepare
a social history, interview witnesses, and only interviewed three of thirty-two people
mentioned in the police report. Id. at 1436. Counsel also completely failed to investigate
the defendant’s mental and emotional status, including his capacity to commit the crime
and competence to stand trial. Id.
Glenn and Harris ex rel Ramseyer, however, are distinguishable from the present
case.

Willoughby’s counsel did investigate and present mitigation evidence on

Willoughby’s psychological problems. Counsel also had Willoughby evaluated for his
competency to stand trial and capacity to commit the crime. During that investigation, one
doctor opined that he was competent to stand trial. Most importantly, he did not pursue
additional evidence after two doctors opined that Willoughby did not have a mental defect
that would serve as a defense or mitigation evidence. Accordingly, Willoughby is not
entitled to habeas relief based on his counsel’s alleged failure to investigate the KCPC
records or interview the psychologist from KCPC.
Willoughby also contends that Jarrell should have more thoroughly investigated his
low intelligence. There is no dispute that Jarrell investigated and presented evidence about
Willoughby’s low intelligence to some extent. Willoughby’s mother testified that Willoughby
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was “slow to learn” in school, but that he also graduated from high school. (TE 2347). She
also explained that Willoughby’s “IQ was below average and he had trouble coping.” (TE
2350). Willoughby contends that Jarrell should have done more investigation into his low
intelligence. According to Willoughby, Jarrell should have discovered that he graduated
last in his high school class, he had an I.Q. of 79, and he had previously been found to be
borderline mentally retarded.

Willoughby suggests that this information was readily

discoverable as part of his school records.
The Kentucky Supreme Court did not unreasonably apply federal law in holding that
Jarrell’s investigation into Willoughby’s level of intelligence was reasonable, as was his
decision to investigate the issue no further. Discussions with Willoughby’s mother revealed
that Willoughby had a low level of intelligence, and Willoughby’s mother was willing to
testify to that fact. While it would have been helpful to quantify Willoughby’s intelligence,
it was reasonable for Jarrell to believe that the mother’s testimony was just as strong as
any evidence that might have been gleaned from school records.
Finally, Jarrell investigated and offered extensive evidence about Willoughby’s good
character and work ethic. That evidence has already been described at length by the
Court. Willoughby contends that Jarrell should have investigated each of these areas
further by talking to his father and co-workers, and by requesting his prior prison records.
However, as previously explained, Jarrell called multiple witnesses to the stand, and asked
other witnesses on cross-examination, about Willoughby’s strong work ethic. Similarly,
other witnesses talked about Willoughby’s character, describing him as “very loving” and
having “no meanness,” among other positive attributes. All of this information gave Jarrell
a strong understanding of Willoughby’s character and reputation, and none of this
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information led him to believe that he would continue to find more favorable information.
It was thus reasonable for the Kentucky Supreme Court to conclude that Jarrell did not
provide ineffective assistance by failing to investigate further.
Willoughby has cited several cases from other Circuits for the proposition that
counsel’s failure to introduce prior prison records demonstrating good behavior amounts
to ineffective assistance. Only one of those cases, Martinez-Macias v. Collins, appears to
reach such a bright-line holding. 810 F. Supp. 782, 787 (W.D. Tex. 1991), aff’d, 979 F.2d
1067 (5th Cir. 1991). But see Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir. 1991)
(holding that counsel was ineffective for failing to put on any mitigation whatsoever based
on the misunderstanding that mitigation evidence was only appropriate in gruesome cases
involving torture), and Eutzy v. Dugger, 746 F. Supp. 1492, 1497 (N.D. Fl. 1989), aff’d, 912
F.2d 1468 (11th Cir. 1990) (holding that counsel was ineffective for failing to present any
mitigation evidence to include favorable jail records).

However, under AEDPA, the

Kentucky Supreme Court’s decision is not measured against the holding of the Fifth or
Eleventh Circuit Courts of Appeal.

Instead, the decision is to be considered in light of

clearly established federal law as determined by the Supreme Court of the United States.
28 U.S.C. § 2254(d)(1). The Supreme Court has held that a defendant has a right to
present testimony about his good behavior while incarcerated and awaiting sentencing as
mitigation evidence. Skipper v. South Carolina, 476 U.S. 1, 5 (1986). However, the Court
has never clearly established that counsel is ineffective for failing to investigate and present
such evidence. The inquiry continues to be guided by the objective reasonableness
standard. See Bobby v. Van Hook, 558 U.S. 4, 6 (2009) (“The Sixth Amendment entitled
criminal defendants to the ‘effective assistance of counsel’–that is, representation that does
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not fall ‘below an objective standard of reasonableness’ in light of ‘prevailing professional
norms.’ That standard is necessarily a general one.”). Applying that standard, the
Kentucky Supreme Court did not unreasonably apply clearly established federal law in
holding that counsel was not ineffective for failing to investigate and present the prison
records.
Finally, Willoughby argues that Jarrell was ineffective in presented nothing more
than a “hollow shell” of mitigation testimony about his background. Willoughby compares
Jarrell’s presentation of mitigation evidence to the evidence presented in Collier v. Turpin,
177 F.3d 1184 (11th Cir. 1999), where the Eleventh Circuit found that defense counsel
provided ineffective assistance. In that case, defense counsel called eight witnesses to
testify during the sentencing phase. Id. at 1201. However, the Eleventh Circuit found that
“their examination of the witnesses was minimal.” Id. “[W]ith respect to a number of
witnesses, counsel only sought their opinion of [the defendant’s] reputation for truth and
veracity – a matter wholly irrelevant to the issue before the jury.” Id. The Eleventh Circuit
concluded that counsel “presented no more than a hollow shell of testimony necessary for
a particularized consideration of relevant aspects of the character and record of a convicted
defendant before the imposition upon him of a sentence of death.” Id. at 1201-02 (internal
quotations omitted).
Unlike counsel in Collier, Jarrell presented wide-ranging and detailed mitigation
evidence. Aside from the mitigation testimony already discussed, Jarrell also presented
extensive testimony on Willoughby’s intoxication at the time of the murders. Willoughby
himself testified that he consumed numerous drugs and copious amounts of alcohol in the
days leading up to the murders. Jarrell called Dr. Schwartz to corroborate Willoughby’s
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testimony about drug and alcohol use, and describe Willoughby’s symptoms of withdrawal
shortly after his arrest.

Other witnesses, including jail personnel and Willoughby’s

investigator, were called by Jarrell to describe Willoughby’s symptoms of withdrawal.
Jarrell also presented extensive evidence to support the theory that Willoughby
acted in self defense against Joe Norman. Jarrell asked Willoughby multiple questions
about Joe Norman’s bad temper, his history of making belittling comments, and repeated
failure to pay Willoughby for work performed. Willoughby also testified that Norman had
physically threatened and pushed him in the past. Jarrell asked other witnesses, including
Susan Hutchens and Wilhemena Thompson, to verify Norman’s abusive tendencies. They
described Norman as a bully who made Willoughby redo work for no reason, and who often
failed to pay Willoughby for work performed. With all of this background information, Jarrell
asked Willoughby to describe his confrontation with Norman shortly before he was killed.
Willoughby explained that Norman pushed him as they argued, and then he grabbed a
bayonet and told Willoughby he would “cut his heart out.”
Ultimately, Jarrell presented wide-ranging and thorough mitigation evidence during
both the guilt and sentencing phase. He may not have uncovered every favorable record,
as Willoughby points out. However, applying the doubly deferential standard of AEDPA
and Strickland, the Court cannot say that the Kentucky Supreme Court unreasonably
applied clearly established federal law in concluding that Jarrell’s investigation and
presentation of mitigation evidence was reasonable. Thus, Willoughby is not entitled to
habeas relief on this claim.

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D.

Sub-Claim C: Ineffective assistance in providing retained expert with
necessary records

Willoughby also contends that his counsel was ineffective for failing to provide his
retained expert, Dr. Robert Granacher, with important life history records, which prevented
the doctor from rendering an accurate psychological assessment. As previously stated,
Willoughby retained Dr. Granacher at the advice of Jarrell to provide a psychological
assessment. Dr. Granacher was known to be a favorable defense witness within the
Fayette County legal community. After a day of observation, Dr. Granacher found that
Willoughby was a sociopath and that he did not have a mental disease or defect that would
support a viable defense. Because Dr. Granacher’s assessment was not favorable to
Willoughby, Jarrell chose not to call him to testify at trial.
Willoughby asserts that Dr. Granacher would have reached a different conclusion
had a he been provided with readily available information, including education, health and
military records. To develop this claim, Willoughby relies on the testimony of Dr. Peter
Schilling, a psychologist, who testified at the CR 11.42 hearing. After reviewing all of the
records and conducting various psychological evaluations, Dr. Schilling diagnosed
Willoughby with Attention Deficit Hyperactivity Disorder (“ADHD”). Dr. Schilling explained
that people with ADHD are inattentive and impulsive. Willoughby argues that this diagnosis
would have been important to his defense and mitigation theory because it established that
he had a “lessened ability to conform his conduct to the law and a lessened moral
culpability for his actions.” (Doc. # 7 at 85). Additionally, Willoughby points out that Dr.
Schilling did not find that he was a sociopath.

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1.

State court decision

The Kentucky Supreme Court adjudicated this sub-claim on its merits, addressing
both the ineffective assistance and prejudice prong of the Strickland test. The Kentucky
Supreme Court stated:
Willoughby complains that his trial counsel was ineffective in presenting
expert testimony particularly by the failure to provide life history records to Dr.
Granacher. Four psychological evaluations were performed on Willoughby.
The claim is that deficient performance was obvious and that Willoughby was
prejudiced because the jury never heard any of the mitigating evidence that
could have been adduced in a competency report, such as the one rendered
by Dr. Peter Schilling. The argument also relies on a summary of the
testimony given by Stephen Bright, a lawyer and law professor.
The Bright testimony regarding the reasonableness of defense counsel was
offered generally. He never specified that the gathering of records to supply
experts was a standard at the time of this trial. Actually, he acknowledged
during his testimony that the ABA Guidelines he was using for his opinions
were adopted in 1989, six years after Willoughby's trial. The effectiveness of
defense counsel is considered based on the professional requirements in
existence at the time of the trial. The fact that experts were found who would
testify favorably as long as twenty years later in some cases, is irrelevant.
Horsely v. Alabama, 45 F.3d 1486 (11th Cir.1995). Defense counsel does not
perform unreasonably merely by not ruling out every possible psychological
mitigator through specialized evaluations. Carter v. Mitchell, 443 F.3d 517
(6th Cir.2006). Here, the conclusion by Dr. Schilling involved an objective
diagnosis model that was 14 years from existence at the time of the trial. This
case is clearly distinguishable from Bean v. Calderon, 163 F.3d 1073 (9th
Cir.1998). In the Bean case, the penalty phase was described as cursory and
disorganized. In that case, counsel also ignored recommendations by two
mental health professionals that had examined the accused in the early
stages of the case and strongly recommended further testing to evaluate the
organic brain damage suffered by Bean.
None of the records were introduced at the RCr 11.42 hearing. The only
evidence of their contents was based on statements made by defense
counsel when questioning Bright and Dr. Schilling. Such records were
available prior to the RCr 11.42 hearing and their contents should not be
considered at this time.
Under all the circumstances, the insufficient testimony of Bright, as well as
the failure to introduce any of the records, is not a proper ground to
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demonstrate that defense trial counsel was ineffective or deficient or that the
outcome of the trial was in any way prejudiced.
Willoughby, 2006 WL 3751392, at *5-6.
Willoughby argues that the Kentucky Supreme Court’s holding is erroneous. He
contends that the court’s “decision on attorney performance was an unreasonable
application of Strickland,” which entitles him to habeas relief under § 2254(d)(1). (Doc. #
7 at 86). Additionally, Willoughby argues that the Kentucky Supreme Court’s decision was
an unreasonable determination of fact, which entitled him to relief under § 2254(d)(2).
2.

Unreasonable determination of fact

Willoughby baldly asserts that the Kentucky Supreme Court’s decision was based
on an unreasonable determination of fact. However, he does not identify any purportedly
erroneous factual findings. He does not even cite any facts developed in the state court
proceedings that contradicts the Kentucky Supreme Court’s factual findings. Nonetheless,
having reviewed the state court record, the Court finds that the Kentucky Supreme Court
made a reasonable determination of facts as it relates to this sub-claim. Therefore,
Willoughby is not entitled to relief under § 2254(d)(2).
3.

Unreasonable application of federal law

Although Willoughby challenges the Kentucky Supreme Court’s decision on both
prongs of the Strickland analysis, his argument predominantly opposes the Kentucky
Supreme Court’s conclusion that his counsel provided adequate representation. During
the CR 11.42 proceedings, Willoughby relied on both the 1989 ABA Guidelines for the
Appointment and Performance of Counsel in Death Penalty Cases and the testimony of
Professor Stephen Bright to establish the standard of performance in 1983. The Kentucky

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Supreme Court refused to consider the standard set forth in the 1989 Guidelines because
it found that counsel’s performance at trial must be measured by standards at the time of
trial. Similarly, the Kentucky Supreme Court held that Professor Bright testified generally
about the prevailing standards of representation, but failed to specify whether those were
the standards in 1983. For these reasons, the Kentucky Supreme Court refused to analyze
counsel’s performance under those standards.
Beginning in Strickland v. Washington, the United States Supreme Court has
recognized that the ABA standards may serve as a guide to determining whether counsel’s
representation was reasonable. Strickland, 466 U.S. at 688-89; see also Williams v. Taylor,
529 U.S. 362, 396 (2000). The ABA standards, however, are only a guide. Strickland, 466
U.S. at 688. The performance inquiry must focus on “whether counsel’s assistance was
reasonable considering all the circumstances.” Id.
The Sixth Circuit has squarely addressed whether the 1989 ABA Guidelines serve
as a guide to determining if counsel’s performance in 1982 and 1983 was reasonable.
Glenn v. Tate, 71 F.3d 1204, 1206-08 (6th Cir. 1995); Hamblin v. Mitchell, 354 F.3d 482,
488 (6th Cir. 2003). In Hamblin, the Sixth Circuit explained that counsel’s performance
must be measured against the prevailing standards of the time of the defendant’s trial,
which took place in 1983. Id. The Hamblin Court relied on the 1989 and 2003 ABA
Guidelines “simply because they are the clearest exposition of counsel’s duties at the
penalty phase of a capital case, duties that were recognized by this court as applicable to
the 1982 trial of the defendant in Glenn v. Tate . . . .” Id.
Pursuant to Glenn and Hamblin, the Kentucky Supreme Court may have erred in
concluding that neither the 1989 ABA Guidelines nor Professor Bright’s testimony, which
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was consistent with the Guidelines, could serve as a guide to the reasonableness analysis.
This potential error, though, does not entitle Willoughby to habeas relief under § 2254(d)(1).
The Kentucky Supreme Court correctly held that Willoughby failed to establish any
prejudice based on his counsel’s alleged failure to provide Dr. Granacher with all necessary
records. Because this conclusion was correct, the Court will not analyze whether the
Kentucky Supreme Court erred in concluding that counsel’s performance was reasonable.
See Strickland, 466 U.S. at 697 (“[A] court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies . . . . It if is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice . . . that course should be followed.”).
The crux of Willoughby’s argument on prejudice is that Dr. Granacher would have
rendered a “competent report,” such as the report rendered by Dr. Schilling, if Jarrell would
have provided all life history records to him. Dr. Schilling’s diagnosis would have been
favorable to Willoughby at trial because he found that Willoughby suffered from ADHD,
which caused him to be impulsive and lack the ability to control his behavior. In addition,
Dr. Schilling found that Willoughby was a submissive person who needed the support of
a more dominant person. According to Willoughby, this opinion would have supported his
theory that his co-defendant, Halvorsen, was more culpable. Finally, Willoughby notes that
Dr. Schilling did not diagnosis him as a sociopath. Willoughby contends that he was
prejudiced because Dr. Granacher did not provide a similar “competent report.”
As Strickland instructs, Willoughby must demonstrate prejudice by “show[ing] that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceedings would have been different.” Strickland, 466 U.S. at 694. In this specific
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instance, Willoughby does not satisfy this burden by demonstrating that another doctor
would have reached a more favorable diagnosis after reviewing all the necessary records.
Instead, Willoughby must demonstrate that Dr. Granacher’s opinion would have been
different, and more favorable, had he been provided with all of the records. See Honeycutt
v. Roper, 426 F.3d 957, 961-62 (8th Cir. 2005), cert denied, 547 U.S. 1180 (2006) (finding
no prejudice where the defendant failed to show that the expert’s opinion would have been
different had he been provided complete medical records). Willoughby has not satisfied
this burden.
Willoughby relies on the testimony of Dr. Schilling at the CR 11.42 hearing to
demonstrate that Dr. Granacher would have diagnosed him with ADHD had he been
provided with the records at issue. However, a close review of Dr. Schilling’s testimony
suggests that the records played no part in his initial ability to reach the diagnosis. Instead,
Dr. Schilling testified that he reached this diagnosis based on objective testing. Before
conducting that objective testing, Dr. Schilling explained that he had no reason to believe
Willoughby suffered from ADHD. Dr. Schilling conducted a twelve-part intelligence test on
Willoughby, which included three sub-tests designed to assess his ability to concentrate.
Willoughby consistently underperformed on these tests of concentration. After this test, Dr.
Schilling administered a “new rating scale,” which he described as a state-of-the-art test
in 1998. That test gave “incredibly strong confirmation” of his diagnosis. Only after
conducting these two objective tests did Dr. Schilling consult Willoughby’s school records
for additional confirmation.
Based on this testimony, Willoughby has not shown a reasonable probability that Dr.
Granacher would have diagnosed him with ADHD had he been provided the school
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records. It was the objective testing, not the school records, that allowed Dr. Schilling to
initially uncover this mental disease. The school records were only relevant to confirm the
initial diagnosis. While Willoughby has demonstrated that the school records played a role
in the diagnosis, he has not shown that the absence of the records caused Dr. Granacher
to miss this diagnosis.
Similarly, Dr. Schilling’s testimony fails to demonstrate that Dr. Granacher would not
have diagnosed Willoughby as a sociopath had he reviewed the records at issue.
Willoughby places significant weight on the fact that Dr. Schilling did not diagnose him as
a sociopath. However, that is not enough to establish prejudice. Dr. Schilling never
explained the basis for this conclusion during the CR 11.42 hearing and thus failed to
demonstrate that Dr. Schilling reached this conclusion based on the contents of the
additional records. As a result, Willoughby has failed to establish prejudice.
Finally, Willoughby has not demonstrated that Dr. Granacher would have found him
to have a submissive personality, as Dr. Schilling opined, if he would have been provided
the records at issue. Dr. Schilling explained that he formed this opinion after looking at the
objective data from tests he performed on Willoughby. Dr. Schilling never suggested that
the records at issue played any role in this diagnosis, and Willoughby has not otherwise
demonstrated that the records would have led Dr. Granacher to the same diagnosis.
In the end, Willoughby has not demonstrated any prejudice by his counsel’s failure
to provide Dr. Granacher with medical, military, and education records, among other
records. There is no indication that any of those records would have caused Dr. Granacher
to reach a different diagnosis. While Dr. Schilling diagnosed Willoughby with conditions
that would have been more favorable to his defense, those diagnoses were largely based
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on objective testing rather than a review of the records at issue.
E.

Cumulative Ineffectiveness

Although the Court has analyzed each of these sub-claims separately, “the clear
mandate of Strickland and several other Supreme Court cases is that the effect of all
counsel’s errors is to be considered in toto, against the backdrop of the totality of the
evidence in the case.” Mackey v. Russell, 148 F. App’x 355, 368-69 (6th Cir. 2005). As the
Court has already held, the Kentucky Supreme Court did not unreasonably apply federal
law in holding that counsel was not ineffective in preparing for the mitigation phase of
Willoughby’s trial. Therefore, the Court need not consider whether this alleged error,
considered in toto with the other claims of error, prejudiced Willoughby. See Davis v.
Lafler, 658 F.3d 525, 538 (6th Cir. 2011) (where the state court reasonably applied federal
law in holding there was no deficient performance, the federal habeas court is not required
to review the prejudice prong).
The Court found that Willoughby was not prejudiced by his counsel’s alleged
ineffectiveness set forth his the first and third sub-claim – calling Dr. Schwartz to testify and
providing Dr. Granacher with necessary records, respectively – when those claims were
considered individually. When those alleged errors are considered in toto, Willoughby has
failed to demonstrate any cumulative prejudice.
In this case, the Commonwealth presented overwhelming aggravating evidence at
trial. In fact, Willoughby took the stand and admitted to shooting at least one of the victims.
Two of the victims were innocent bystanders, killed because they were in the wrong place
at the wrong time. One of the innocent-bystander victims lied on the floor and moaned in
pain from her gunshot wounds. If the original gunshots were not bad enough, Willoughby
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stoop atop the victim and shot her twice more. Then, to cover up his crime, Willoughby and
his co-defendant loaded the victims’ bodies into vehicles and attempted to throw them off
a bridge into a river. One of the bodies was recovered from the river below. The other two
bodies were found on the side of the bridge. Each victim was bound by yellow-and-blue
rope that was attached to a heavy rock, presumably to ensure the bodies sunk to the
bottom of the river. In short, there was overwhelming evidence that the Willoughby
committed a gruesome crime. Willoughby has not demonstrated a reasonable probability
that the omitted evidence or keeping Dr. Schwartz from testifying would have changed the
conclusion that the aggravating circumstances outweighed the mitigating evidence and,
hence, the sentence imposed. Therefore, Willoughby is not entitled to habeas relief on his
ineffective assistance of counsel claim.
V. CERTIFICATE OF APPEALABILITY
Under the AEDPA, an appeal from a denial of a writ of habeas corpus may not be
taken unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C.
§ 2253. Recently, in Castro v. United States, 310 F.3d 900 (6th Cir. 2002), the Sixth Circuit
held that a district court need not wait until a petitioner moves for a Certificate of
Appealability (hereinafter "COA") before issuing a COA for claims raised in the petition.
Because a district judge who has recently denied a writ of habeas corpus will have "an
intimate knowledge of both the record and the relevant law and could simply determine
whether to issue the certificate of appealability when she denies the initial petition," it
follows that a proper time to determine whether to grant a COA is at the conclusion of the
opinion granting or denying the writ. Id. at 901 (internal quotation marks and citations

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omitted).12 Thus, in concluding this Opinion, it is now appropriate to determine whether to
grant or deny a COA as to any of the claims Petitioner presented in his petition pursuant
to 28 U.S.C. § 2253.
A COA may not issue unless "the applicant has made a substantial showing of the
denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the
applicant is required to show that reasonable jurists could debate whether, or agree that,
the petition should have been resolved in a different manner, or that the issues presented
were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S.
473, 483-484 (2000). When a district court rejects a habeas petitioner's constitutional
claims on the merits, the petitioner must demonstrate that reasonable jurists would find the
district court's assessment of the constitutional claims to be debatable or wrong. Id.
Applying this standard to the claims raised herein, and for the reasons set forth
within the body of this Memorandum Opinion and Order, the Court concludes that because
jurists of reason could debate the issues raised in Claims 1 and 5(1)(d) , the Court will issue
a COA on those claims. The Court will not issue a COA for any of the other claims raised.
VI. CONCLUSION
For the reasons discussed above, and the Court concluding that Petitioner has
presented no grounds upon which federal habeas relief is warranted, it is accordingly,
ORDERED AS FOLLOWS:

12

Because Castro was decided subsequent to the Sixth Circuit’s decision in Murphy v.
Ohio, 263 F.2d 466 (6th Cir. 2001) wherein a different panel of the Sixth Circuit suggested that it
was improper for the district court to deny a certificate of appealability before the petitioner had
even applied for one, the Court believes that Castro is controlling and will proceed to determine
which claims in Willoughby’s petition, if any, warrant a COA.
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(1)

The petition of Mitchell Willoughby for writ of habeas corpus (Doc. # 7) is

denied;
(2)

The instant action is dismissed with prejudice and stricken from the docket

of this court;
(3)

This is a final and appealable order. With regard to any appeal, a certificate

of appealability pursuant to 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b) will be issued
for Claims 1 and 5(1)(d), and denied for all other Claims raised.
(4)

Judgment will be entered contemporaneously with this Memorandum Opinion

and Order in favor of the Respondent.
This 29th day of August, 2014.

G:\DATA\DeathPenalty\Willoughby\MOO denying petition.wpd

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