Bowling v. Haeberlin
Filing
275
MEMORANDUM OPINION & ORDER : (1) Petitioner Ronnie Bowling's Motion for Reconsideration, R. 262 , is DENIED IN PART and GRANTED IN PART. (2) Pursuant to 28 U.S.C. § 2253(c)(2), Bowling is GRANTED a Certificate of Appealability on Claims 6 and 36, R. 262 at 56. The question on appeal is limited to the same issue in Wheeler: Whether Kentucky's statutory scheme for proportionality review of capital sentences is constitutional. (3) Bowing is DENIED a Certificate of Appealability for all his other claims. R. 262 at 726. Signed by Judge Amul R. Thapar on 3/21/13.(SYD)cc: COR, srv
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
RONNIE LEE BOWLING,
)
)
Petitioner,
)
Civil No. 03-28-ART
)
v.
)
)
MEMORANDUM OPINION
GLENN HAEBERLIN, Warden,
)
AND ORDER
)
Respondent.
)
*** *** *** ***
Ronnie Lee Bowling petitioned for a writ of habeas corpus, challenging his
conviction in a Kentucky court for the murders of Ronald Smith and Marvin Hensley. R. 1.
Bowling’s petition claimed that both his trial and his capital sentence violated his
constitutional rights. See id. Over the course of three opinions, this Court denied Bowling’s
petition and every claim that he raised. R. 211; R. 245; R. 259; see also R. 261 (entering
judgment against Bowling). This Court then granted Bowling a Certificate of Appealability
(COA) on five of the issues (spread over six claims) raised in his petition.1 R. 260. In doing
so, it invited either party to make a motion for reconsideration if they disagreed with the
issues the Court identified or thought other issues should be heard on appeal. See id. at 3.
Bowling filed a motion seeking reconsideration of eleven issues. R. 262. One of those
issues deserves consideration by the Sixth Circuit and will receive a COA. The rest do not.
Therefore, the Court will grant the motion in part and deny it in part.
1
Since two claims raised the same issue, there were really only five issues certified for appeal, even though a
COA was granted for six claims. See R. 260 at 2.
DISCUSSION
I.
Granting a Certificate of Appealability Under § 2253
As the habeas petitioner, Bowling has the burden of showing that a COA should issue
on a given claim. See Slack v. McDaniel, 529 U.S. 473, 483–84 (2000) (citing 28 U.S.C.
§ 2253(c)). This Court reached the merits of all the claims for which Bowling now seeks a
COA. See R. 245; R. 259. Thus, for a COA to issue on any of those claims, he must make
“a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c); see also
Miller-El v. Cockrell, 537 U.S. 322, 349 50 (2003) (Scalia, J., concurring) (explaining that
the “substantial showing” is a necessary, but not sufficient, condition for a COA under
Miller-El (citing Slack, 529 U.S. at 484)). To make a sufficiently “substantial” showing,
Bowling must establish that “reasonable jurists would find the district court’s assessment of
the constitutional claim[] debatable or wrong.” Slack, 529 U.S. at 484. Additionally, for
claims this Court resolved under § 2254(d), Bowling must show that reasonable jurists would
find this Court’s application of § 2254(d) debatable. See Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (“We look to the District Court’s application of AEDPA to petitioner’s
constitutional claims and ask whether that resolution was debatable amongst jurists of
reason.” (emphasis added)); see also id. at 349 50 (Scalia, J., concurring) (explaining that
Miller-El requires judges to deny a COA where “all reasonable jurists would conclude that a
substantive provision of the federal habeas statute bars relief”).
Bowling chastises this Court for applying what he believes is an improper standard in
granting his COA. R. 262 at 2. Not so. His criticism misunderstands Supreme Court
2
precedent and fails to appreciate how this Court’s two-step approach to the COA fulfilled its
gatekeeping function under § 2253(c)(2).
First, Bowling misunderstands the Supreme Court’s decision in Miller-El v. Cockrell.
He claims that, because Miller-El held that courts of appeal cannot deny a COA based on the
underlying merits, it follows that district courts also may not. See id. Bowling fails to
appreciate the different jurisdictional consequences that 28 U.S.C. § 2253 has for courts of
appeal. Miller-El held that courts of appeal could not decline an application for a COA
based on the appeal’s underlying merits because it would be “in essence deciding an appeal
without jurisdiction.” 537 U.S. at 337. But a district court’s jurisdiction over a habeas claim
is not predicated on a COA having issued. In fact, a COA cannot issue until the district court
has addressed the underlying claim, either by applying a procedural bar or addressing its
merits. See 28 U.S.C. § 2253(c)(1)(A). Thus, there is nothing improper about a district court
relying on its merits determination when issuing the COA so long as it applies those
considerations in light of § 2253(c)’s more forgiving standard. And that is precisely what the
Court did. See R. 260 at 1 2. If this Court had merely regurgitated its merits determination,
it would not have granted a COA on any issues.
Second, Bowling fails to appreciate how this Court’s two-step approach furthered
“the gate keeping function of certificates of appealability.” Porterfield v. Bell, 258 F.3d 484,
487 (6th Cir. 2001). This Court issued its ruling identifying which particular issues, in its
view, clearly met the standard set forth in Slack. See R. 260 at 1 2 (citing Slack, 529 U.S. at
484). It then invited the parties to file a motion for reconsideration if they felt that the
number of issues should be expanded or reduced. See id. at 1, 3. By doing so, the Court
3
saved Bowling and the Commonwealth the time and effort of needlessly briefing issues that
the Court had already determined were worthy of a COA. Granted, the Sixth Circuit has held
that it is error for a district court to issue blanket COA rulings, either granting or denying a
COA on all of a defendant’s claims. See Porterfield, 258 F.3d at 486 87 (holding that a
blanket grant or denial of all claims is error). But the Court of Appeals has never held that
the two-step approach taken here by the Court—one that facilitated a more efficient,
individualized analysis of the petitioner’s claims—is error.
II.
Bowling’s Claims
As an initial matter, Bowling fails to appreciate the limits of habeas review in making
his arguments. There are two key distinctions—appearing throughout this Memorandum
Opinion and Order—between the cases Bowling relies on and this Court’s review of his
claim. Bowling often simply cites the fact that two Kentucky Supreme Court Justices
dissented in his direct appeal as if it were conclusive proof that a COA should issue on a
claim. See, e.g., R. 262 at 8 10. Other times he relies on dissents in cases holding that
defendants in his position do not have a viable constitutional claim. See, e.g., R. 262 at 7 8;
see also R. 161 at 2 3 (explaining the cases that Bowling’s motion for reconsideration relies
on). Most of the cases Bowling relies are therefore irrelevant to the COA inquiry under
§ 2253(c).
First, the state-court dissent does not address federal constitutional issues, which are
the only basis for a COA under § 2253(c). The passages from the dissent that Bowling relies
on apply Kentucky case law. See, e.g., R. 262 at 8 9 (citing state-court dissent’s application
of Kentucky’s voir dire doctrine). As will become clear when analyzing the relevant claims
4
below, that state law differed meaningfully from the federal constitutional precedent this
Court applied under federal habeas review. The question under § 2253(c) is not whether
reasonable jurists could debate the merits of the state court’s interpretation of state law. It is
whether they could debate this Court’s assessment of Bowling’s federal constitutional
claims. See Miller-El, 537 U.S. at 336.
Second, Bowling ignores how the COA inquiry functions when the district court
applies AEDPA deference under § 2254(d). Often, his argument effectively adopts a per se
rule that whenever a judge dissents on direct appeal, or in an analogous case, a COA should
issue. See, e.g., R. 262 at 7 8, 8 10, 14 15. Bowling’s approach asks this Court to ignore
Miller-El’s clear instruction that the COA inquiry “look to the District Court’s application of
AEDPA to petitioner’s claims and ask whether that resolution was debatable amongst jurists
of reason.” 537 U.S. at 336 (emphasis added); see also id. at 349 50 (Scalia, J., concurring)
(explaining that, after Miller-El, judges “must deny a COA, even when the habeas petitioner
has made a substantial showing that his constitutional rights were violated, if all reasonable
jurists would conclude that a substantive provision of the federal habeas statute bars relief”).
Unmooring the COA inquiry from the substantive requirements of AEDPA not only
defies the Supreme Court’s holdings in Miller-El and Slack, it also contravenes the basic goal
of the AEDPA statute. See id. at 336 37; Slack, 529 U.S. at 483 85. AEPDA seeks to
promote “comity, finality, and federalism” by making the state courts the primary venue for
resolving state prisoners’ constitutional claims. Michael Williams v. Taylor, 529 U.S. 420,
436 (2000). Bowling’s approach would frustrate those goals by having federal appellate
courts review claims despite the fact they are not debatable under § 2254(d). Compare
5
R. 262 at 14 15 (relying on a dissent by two dissenting Kentucky Justices asserting that the
majority misapplied Kentucky’s voir dire doctrine on direct appeal), with R. 259 (relying on
the Supreme Court’s admonition that federal courts must “respect the limited role of federal
habeas relief” in issues of voir dire questioning (quoting Uttecht v. Brown, 551 U.S. 1, 9
(2007))). Reviewing such claims would unnecessarily delay the resolution of a habeas
petition, which frustrates AEDPA’s finality goal.
Reviewing those claims would also
contravene AEDPA’s comity principle by putting federal courts of appeal in a position of
pedantically reviewing a state court’s decision when that review is clearly not needed.
A.
Claims 6 and 36 – Proportionality Review
In Claims 6 and 36, Bowling argued that Kentucky’s statutory scheme establishing
proportionality review of death sentences by the Kentucky Supreme Court violated his
constitutional rights. See R. 159 at 112 25 (Claim 6), 186 87 (Claim 36). This Court
rejected those claims because neither the Kentucky Supreme Court’s ruling nor the statute it
applied were contrary to, or unreasonable applications of, clearly established federal law.
R. 245 at 16 21. In his motion for reconsideration, Bowling points out that the Sixth Circuit
recently issued a COA on the issue of whether Kentucky’s statutory scheme is constitutional.
See R. 262 at 5 6 (citing Wheeler). That decision did not provide reasons for why the Sixth
Circuit chose to grant a COA. See Order, Wheeler v. Simpson, No. 11-5707 (6th Cir. June
19, 2012) (issuing a COA on the claim that “Kentucky’s proportionality review of the death
penalty is unconstitutional”). Without an explanation from the Sixth Circuit to guide its
decision, this Court will assume that the reasons for the decision in Wheeler apply here as
well. Thus, this Court defers to the Circuit’s judgment, and will issue a COA on Claims 6
6
and 36 limited to the same question presented in Wheeler: Whether Kentucky’s statutory
scheme for proportionality review of capital sentences is constitutional.
B.
Claim 12 – Instruction on Unanimity for Mitigating Circumstances
Claim 12 argued that an ambiguity in the jury instructions could have led the jurors to
believe they had to unanimously find a mitigating circumstance to refrain from imposing the
death penalty. See R. 159 at 139 51 (citing, inter alia, Mills v. Maryland, 486 U.S. 367, 384
(1988)). This Court, applying § 2254(d), rejected that claim because the Sixth Circuit in
Kordenbrock v. Scroggy, 919 F.2d 1091, 1121 (6th Cir. 1990) (en banc) (Opinion of
Kennedy, J.), upheld the use of instructions which were “materially the same” as the ones
Bowling received. R. 245 (quoting R. 159 at 144). Bowling now urges this Court to issue a
COA based on the five-judge dissent in Kordenbrock and dicta from a panel decision in
Mapes. R. 262 at 7 8 (citing the district court’s order in Woodall); see also Woodall v.
Simpson, No. 5:06-216-TBR, 2009 WL 464939, at *28 (W.D. Ky. Feb. 24, 2009) (citing
Kordenbrock, 919 F.2d at 1110 (Merritt, C.J., dissenting in part) and Mapes v. Coyle, 171
F.3d 408, 418 19 (6th Cir. 1999)). His argument fails to account for the role § 2254(d) plays
when conducting a COA inquiry under § 2253(c).
Kordenbrock forecloses any reasonable debate on this Court’s application of
§ 2254(d) to Claim 12, which settles the COA inquiry under Miller-El. See 537 U.S. at 336
(holding that the COA inquiry turns on whether “the District Court’s application of AEDPA
[] was debatable amongst jurists of reason”). Bowling admits that the jury instructions he
challenges are “identically worded” and “indistinguishable” from the instructions approved
in Kordenbrock.
R. 262 at 7 (quotation omitted).
7
And though Kordenbrock has been
distinguished on other grounds in later cases, it is still good law and binding precedent in the
Sixth Circuit. See Williams v. Anderson, 460 F.3d 789, 810 12 (6th Cir. 2006); see also Coe
v. Bell, 161 F.3d 320, 338 (6th Cir. 1998) (explaining that Kordenbrock “held that the only
reasonable reading of the instruction was that, by omission, no unanimity was required as to
mitigating factors”). Thus, Kordenbrock is undeniable evidence that fairminded jurists could
agree with the Kentucky Supreme Court that Bowling’s jury instructions passed
constitutional muster. Consequently, it is irrefutable proof that this Court applied § 2254(d)
correctly, because all § 2254(d) requires is a “possibility” that fairminded jurists would
approve the state court’s application of Supreme Court precedent. Harrington v. Richter,
131 S. Ct. 770, 785 86 (2011) (holding that § 2254(d) bars federal habeas relief if
“fairminded jurists could disagree on the correctness of the state court’s decision (internal
quotation marks omitted)); see also Moore v. Johnson, 225 F.3d 495, 503 04 (5th Cir. 2000)
(holding that a COA will not issue where circuit precedent forecloses the claim). Thus, no
COA will issue on Claim 12.
C.
Claim 4 – Victim Impact Testimony
Claim 4 argued that the trial court violated Bowling’s constitutional rights by
allowing the victims’ families to testify at the sentencing phase of his trial. See R. 1 at 80;
R. 159 at 101 06. This Court rejected his claim because the Kentucky Supreme Court’s
affirmation of the trial court was not objectively unreasonable under Payne v. Tennessee, 501
U.S. 808, 827 (1991). R. 259 at 145 54. The only grounds that Bowling offers for issuing a
COA on this claim is the dissent of two Kentucky Justices hearing his direct appeal. See
R. 262 at 8 9.
8
Bowling’s argument for a COA on Claim 4 fails to appreciate the standard applied in
federal habeas review. The fact that two state-court justices, citing only state law, dissented
in a defendant’s direct appeal does not speak to whether a federal district court’s application
of federal constitutional law is debatable, the relevant question for a COA. Cf. Slack, 529
U.S. at 484 (limiting the COA issue to whether “reasonable jurists would find the district
court’s assessment of the [federal] constitutional claims debatable or wrong”). The dissent
Bowling cites says nothing about the application of Payne.2
The dissenting Kentucky
Justices cited only state decisions to support their conclusion that the testimony at issue was
unfair. See Bowling v. Commonwealth, 942 S.W.2d 293, 309 10 (1997). And those state
decisions not only predate Payne, they place far greater limits on sentencing testimony than
Payne did. Specifically, Payne held that evidence “demonstrating the loss to the victim’s
family and to society” was constitutionally permissible, 501 U.S. at 822, while the Kentucky
precedent the dissent relied on barred such evidence, see Morris v. Commonwealth, 766
S.W.2d 58, 61 (Ky. 1989) (condemning emotive evidence about the victim’s standing in the
community (citing Booth v. Maryland, 482 U.S. 496 (1987), overruled by Payne, 501 U.S.
808)); Sanborn v. Commonwealth, 754 S.W.2d 534, 542–43 (Ky. 1988) (forbidding evidence
of the victim’s standing in the community or the crime’s impact on the family).
The
Kentucky precedent also condemned testimony with emotive power, which Payne again
explicitly affirmed as constitutionally permissible. Compare Ice v. Commonwealth, 667
S.W.2d 671, 675 76 (Ky. 1984) (finding presentation of pictures of the murdered children
2
Bowling’s assertion that it can be inferred that the dissent was applying Payne from the fact that the majority
applied Payne in its decision is untenable. See R. 262 at 9. All of the reasoning applied by the dissent is based on
Kentucky law. To conclude that the dissent was implicitly applying Payne while explicitly applying Kentucky’s
more restrictive state-law standard would be unreasonable.
9
and testimony by their mother about her loss improper), with Payne, 501 U.S. at 826 (“[T]he
testimony illustrated quite poignantly some of the harm that [the defendant’s] killing had
caused; there is nothing unfair about allowing the jury to bear in mind that harm at the same
time as it considers the mitigating evidence introduced by the defendant.”). Given Kentucky
law’s much more restrictive limits on sentencing testimony, the dissent’s arguments do not
speak to the validity of Bowling’s federal constitutional claim.
Bowling has not made a substantial showing of the denial of a federal constitutional
right.
Instead, he has established that the Kentucky Supreme Court’s application of
Kentucky law is debatable. Such a showing is of no consequence under § 2253(c)(2). See
Miller-El, 537 U.S. at 336 37. Thus, a COA will not issue on Claim 4.
D.
Claim 1 – Denial of a Motion for a Change of Venue
Claim 1 argued that the trial court erred in denying Bowling’s motion for a change of
venue. R. 159 at 46 52. This Court construed his claim as asserting both presumed and
actual prejudice, even though Bowling’s brief conflated the two theories. See R. 245 at 11.
This Court denied the claim under both theories because Bowling failed to establish
prejudice under the relevant standards set by the Supreme Court. See id. at 12. Bowling now
argues that reasonable jurists might have come out the other way, so a COA should issue. In
support of his argument, he points to a snippet of the dissent from the Kentucky Supreme
Court’s denial of his direct appeal. See R. 262at 9–10. However, the state-court dissent does
not justify a COA because it says nothing about the trial court’s ruling on Bowling’s motion
to change venue. And even if it did apply to the trial court’s venue ruling, the dissent does
10
not cast doubt on this Court’s determination that Bowling suffered no prejudice to his
constitutional rights.
Bowling uses selective quotations to mischaracterize the Kentucky Justices’ dissent as
disagreeing with the trial court’s venue ruling. See R. 262 at 9. The dissent did assert that
the “jury panel was clearly biased due to the publicity surrounding the trial.” Bowling, 942
S.W.2d at 309 (Stephens, C.J., dissenting). But, read in the context of the entire opinion, it is
clear that the dissent’s claim is not about venue. Instead, the passage Bowling quotes refers
to one individual whom the trial court refused to strike for cause during voir dire: Nellie
Cole. Under a heading titled “Jury Selection,” the dissent identifies three jurors that should
have been struck for cause. See id. at 309. Of those three, only Cole is described as having
been exposed to newspaper coverage of the murders, and she did not serve on the jury
because she was struck by a peremptory challenge. Id. The dissenters claim that Bowling
was forced to use a peremptory challenge to remove her from the jury pool, not that the trial
court erred in denying Bowling’s motion for venue. See id.3 That is an issue of state law.
See Claim 2, infra (discussing Rivera v. Illinois and Shane v. Commonwealth). Therefore,
the dissent does not provide any basis for debating whether the trial court denied Bowling’s
federal constitutional rights. See Miller-El, 537 U.S. at 336 37.
3
Reading the full passage makes the limited focus of the dissent’s statement clear: “Considering the totality of
the circumstances in the instant case, the jury panel was clearly biased due to the publicity surrounding the trial,
close relationships between prospective jurors and investigating police officers, as well as some expressions of
preconceived notions of guilt before the trial began. Nellie Cole and Rebecca Jones were both struck by defense
preemptory challenges while Cleda Creech served on the jury.” Bowling, 942 S.W.2d at 309 (Stephens, C.J.,
dissenting). The fact that the remaining paragraphs in the section analyze only those three jurors without making
any reference to a change in venue establishes that the dissent’s focus was the trial court’s refusal to strike those
three jurors for cause. See id. The word “venue” does not even appear in the dissent. See id. at 308 09.
11
Furthermore, because Cole was removed by peremptory challenge, it is beyond
dispute that the trial court’s failure to strike her for cause did not prejudice Bowling’s
constitutional rights. See Skilling v. United States, 130 S. Ct. 2896, 2923 & n.31 (2010)
(holding that a defendant is not deprived of “any [] constitutional right” where no partial
juror sat on the jury (quotation and alterations omitted)). The well-established principle
enunciated in Skilling forecloses any reasonable argument about this Court’s resolution of
Bowling’s federal constitutional claim. See Miller-El, 537 U.S. at 336 37.
Since Bowling has not presented any evidence suggesting that reasonable jurists
would debate the trial court’s venue ruling or this Court’s decision on the federal
constitutional issue, a COA will not issue on Claim 1.
E.
Claim 8 – Confidential and Independent Expert
At trial, the prosecution called Jeffrey Scott Doyle, a firearms examiner for the
Kentucky State Police, as an expert witness. See R. 245 at 23 24, 27 28. Claim 8 alleged
that Doyle’s testimony violated Bowling’s constitutional right to an independent expert
because the trial court had ordered Doyle to send his reports only to the defense. R. 159 at
126 33. This Court, applying § 2254(d), rejected the claim. R. 245 at 23 30. It concluded
that because there is no clearly established general right to a ballistics expert, there cannot
logically be a more specific right to a confidential and independent ballistics expert. Id. at
26 27. In his motion for reconsideration, Bowling cites the Sixth Circuit’s decision in
Babick—a case absent from his earlier briefs—and claims that it demonstrates the
debatability of this Court’s decision. See R. 262 at 10 11 (citing Babick v. Berghuis, 620
F.3d 571 (6th Cir. 2010)).
While Babick does acknowledge that the Supreme Court’s
12
decision in Ake v. Oklahoma might extend beyond the mental-health-expert context, it does
not suggest that individuals in Bowling’s position have the right to a confidential
independent expert. Babick, 620 F.3d at 579 (citing Ake, 470 U.S. 68, 86 87 (1985)). And
Bowling offers no other evidence showing that any court has held that defendants have such
a right under Ake.
A close reading of Babick reveals that it does not stand for the broad proposition
Bowling claims it does. In Babick, a habeas petitioner claimed that a state prosecutor
violated his right to a state-paid expert witness to testify about the arson issues in his trial.
Babick, 620 F.3d at 579. Babick was accused of setting a fire that killed two young boys. Id.
at 574. His public defender received court approval to retain an arson expert and then seek
reimbursement for his fees from the state. Id. at 579. The state prosecutor sent a letter to his
attorney directing her to send expert-witness bills to another state agency, and not to the
prosecutor’s office. Id. Babick argued that the letter interfered with his right to expert
assistance under Ake by discouraging defense counsel from retaining an arson expert. Id.
The Babick panel acknowledged that the courts of appeal have split over whether the right to
expert assistance under Ake “extends to non-psychiatric experts as well.” Id. However, the
panel did not resolve the issue because there was no indication that the prosecutor’s letter
had any effect on defense counsel’s decision to retain an arson expert. Id. The panel never
contemplated whether Ake guarantees expert assistance that is both confidential and
independent.
Moreover, if the issue were debatable, surely some court in the nearly twenty-eight
years since Ake was decided would have found a constitutional right to confidential,
13
independent expert assistance.
But the Court’s research has not revealed any decision
finding a right to a confidential and independent expert—in any field—under Ake. And
Bowling did not identify any such cases in either his habeas petition or his motion for
reconsideration. See R. 159 at 126 33; R. 262 at 10 11.
Bowling has failed to make either of the necessary showings to justify a COA on this
claim. First, he presents nothing indicating that this Court’s interpretation of Ake’s limits is
debatable. Second, he fails to identify any decision even suggesting that the Court ignored a
clearly established right to such expert assistance. He has consequently not shown that this
Court’s application of § 2254(d) is subject to reasonable debate. See Miller-El, 537 U.S. at
336 37; see also id. at 349 50 (Scalia, J., concurring) (explaining that both showings are
required). Therefore, no COA will issue on Claim 8.
F.
Claims 54, 57, and 60 – Trial Court Rulings on Bowling’s Mental Health
Expert
Bowling seeks reconsideration on three claims that challenged how the trial court
handled Bowling’s motion for an evaluation by an independent neuropsychologist. R. 262 at
13 14. In his habeas petition, he challenged: (1) the trial court’s decision to provide funding
for a psychiatrist rather than a neuropsychologist, see R. 1 at 276 (Claim 57); (2) the trial
court’s refusal to grant him an “independent expert witness,” see id. at 270 (Claim 54); and
(3) the trial court’s decision to appoint a neutral expert from the Kentucky Correctional
Psychiatric Center, see id. at 289 (Claim 60). All three claims presupposed that a defendant
in Bowling’s position had a constitutional right to a mental-health expert at the penalty
14
phase.4 This Court applied § 2254(d) and denied all three on the same grounds: The right to
expert assistance announced by the Supreme Court in Ake, 470 U.S. at 86–87, does not apply
to defendants such as Bowling who do not plan to use the expert’s testimony at trial. R. 259
at 140 45.
Even the most generous reading of Ake does not extend a right to expert assistance to
defendants like Bowling. In Ake, the Supreme Court held that a defendant has a right to a
state-funded psychiatrist if he plans to assert an insanity defense at trial or the prosecution
planned to present psychiatric evidence of his future dangerousness. Ake, 470 U.S. at 82 84.
Ake’s rationale was simple. Due process in an adversarial system requires that indigent
defendants be given the tools to present their own defense and to counter the prosecution’s
case against them. Id. If a defendant’s mental condition is “likely to be a significant factor
at trial,” then he has a right to expert assistance. Id. at 74, 82. The logical corollary is that,
where a defendant does not plan to use an expert to bolster his own innocence defense or
counter the government’s expert evidence, he has no right to funding. Such was the case
with Bowling. He did not plan to use a neuropsychologist as part of his defense at the guilt
phase, and the prosecution did not present any psychological evidence against Bowling in the
penalty stage. Thus, this Court found that Bowling had no right to expert assistance under
Ake. See R. 259 at 140 45. The Sixth Circuit has affirmed this logic at least four times. See
id. at 141 (collecting cases).
4
Of course, Bowling’s “position” included the strategic decision he made with his attorneys to forego
investigating or presenting evidence of his alleged diminished capacity in order to make the best innocence defense
possible. See R. 259 at 117. Bowling glossed over this fact in making his habeas claims. That strategic decision
undermines his claim to expert assistance under Ake. See id. at 141 42.
15
The one case that Bowling cites, Babick, does not show that a reasonable jurist would
debate this Court’s decision on Claims 54, 57, and 60. R. 262 at 14 (citing Babick, 620 F.3d
571).
First, the only uncertainty that Babick acknowledged was whether the Supreme
Court’s decision in Ake v. Oklahoma extends to experts outside the mental-health field. See
Babick, 620 F.3d at 579 (citing cases addressing funding for unspecified nonpsychiatric
experts (Baxter), forensic and ballistic experts (Yohey), a hypnotist (Armontrout), a
pathologist (Terry), and a blood-spatter expert (Tinsley)). Babick did not mention any of the
Sixth Circuit cases addressing mental-health experts that this Court relied on in resolving
Bowling’s claim. Nor should it have. Babick dealt with alleged interference with the
defense’s arson expert for the guilt phase, not a mental-health expert at the penalty phase
where guilt is not an issue. See id.
Second, all of the cases that Babick cites follow the basic principle this Court relied
on in making its decision. Even the cases that extend Ake beyond the mental health arena do
not question that defendants’ right to expert funding is contingent on that expert’s testimony
being a major focus at the trial. In every case, the defendant either: (1) required expert
assistance to mount an innocence defense at the guilt stage, see Babick, 620 F.3d at 579
(citing Terry, Tinsley); or (2) needed expert testimony to dispute evidence presented by the
government, see id. (citing Yohey, Baxter, and Armontrout). Neither Babick nor any of the
cases it cites so much as hint at a broader right to expert funding. And Bowling offers no
evidence that, when the trial court ruled on Bowling’s motion, his mental health would be a
major focus of the trial. Therefore, Babick provides no basis for questioning this Court’s
decisions.
16
Like Claim 8 above, Bowling’s reliance on Babick prevents him from making either
of the necessary showings to justify a COA. He provides no evidence that reasonable jurists
would debate this Court’s resolution of Bowling’s underlying constitutional claims—let
alone evidence they might debate its application of § 2254(d). Thus, no COA shall issue for
any of these three claims.
G.
Claim 55 – Ineffective Assistance for Accepting the Trial Court’s
Assignment of a State Expert
Claim 55 asserted that Bowling’s “trial counsel was ineffective for ultimately
conceding that a non-independent psychologist . . . could be a sufficient substitute for a
neuropsychologist.” R. 159 at 257. Claim 55 rested on the premise that Bowling had a right
to an independent mental health expert. This Court rejected his claim because, among other
reasons,5 the Sixth Circuit has repeatedly rejected the notion that defendants have such a
right. See R. 259 at 131 (citing Smith v. Mitchell, 348 F.3d 177, 207–08 (6th Cir. 2003)
(holding that a defendant has no right under Ake to “independent expert assistance,” that “a
friend of the court’ appointment” satisfies Ake, and that the Constitution “does not entitle [a
defendant] to the psychiatrist of his choosing”) and Wogenstahl v. Mitchell, 668 F.3d 307,
340 (2012)). Those cases provide clear evidence that “fairminded jurists” would accept the
state court’s decision as correct. Richter, 131 S. Ct. at 786.
In his motion for reconsideration, Bowling relies on the same argument (based on
Babick) that he made under Claims 54, 57, and 60. Compare R. 262 at 12 13 (arguing that
Babick casts doubt on Smith), with id. at 13 14 (same). For the reasons previously given,
5
The Court also found that Bowling had not established deficient performance or prejudice under Strickland.
See R. 259 at 132 33.
17
Babick is as inapplicable to Claim 55 as it was to Bowling’s other claims. Therefore, a COA
will not issue on Claim 55.
H.
Claim 2 – For-Cause Challenges
Claim 2 of Bowling’s petition alleged that the trial court erred in refusing to strike
eighteen potential jurors for cause during voir dire. R. 159 at 52 90. The claim included
eighteen sub-claims, one for every potential juror named in the claim. The Court’s opinion
grouped those sub-claims into two groups—those who served on his jury and delivered
verdict and those who did not. R. 259 at 26. It did so because the former group raises
constitutional concerns that the latter group does not. See id. Bowling seeks a COA on one
sub-claim for a juror who actually served, and a COA on all the sub-claims for the nine
prospective jurors he peremptorily struck. R. 262 at 14 19.
Cleda Creech: Bowling seeks a COA for his sub-claim based on Cleda Creech.
R. 262 at 14 15. During voir dire, Creech was initially confused by the defense attorney’s
question, and answered that she could not consider “20 years” for the murder of two people.
See 5 T.E. 757; see also id. at 758 59 (“I guess I misunderstood . . . .”). After the trial court
clarified the issue, she agreed that she could consider the full range of punishment as the law
required. See id. at 758 62. Bowling’s petition argued that Creech was not impartial and
that her presence on the jury violated his right to an impartial jury. R. 159 at 80. This Court,
applying § 2254(d), rejected that claim because the Supreme Court has found that initial
confusion about a voir dire question should not disqualify a juror. See R. 259 at 34 35
(citing Gray v. Mississippi, 481 U.S. 648, 653 (1987) and id. at 659 (Powell, J., concurring in
part and concurring in the judgment)). Bowling’s motion for reconsideration argues that a
18
COA should issue based on the dissent in his direct appeal—a dissent that relied exclusively
on state law and ignored the fact that Creech’s first answer was the result of confusion. See
R. 262 at 14 15. Since the Bowling dissent did not apply the Supreme Court precedent that
controlled this Court’s decision, it does not provide grounds for reconsideration.
First, the dissenting Kentucky Justices relied on state law that is inapplicable to this
Court’s resolution of Bowling’s federal habeas claim. The dissenters argued that the trial
court’s rehabilitation of Creech was improper under Kentucky Supreme Court precedent.
Bowling, 942 S.W.2d at 309 (“This type of ‘rehabilitation’ was condemned in Montgomery
[i, 819 S.W.2d 713, 718 (Ky. 1992)] and does not cure the bias of the juror.”). But the
United States Supreme Court’s precedent requires the very type of rehabilitation that the
Bowling dissenters condemned. Gray v. Mississippi, 481 U.S. at 653, established automatic
reversal where trial courts strike jurors for cause who are initially confused by the voir dire
questions but ultimately confirm that they can perform their duty as jurors. See R. 259 at
31 32, 34 35. The fact that the two dissenters reached a different result based on state law
does not speak to the debatability of this Court’s decision about the federal constitutional
issue.
Second, the dissenting Kentucky Justices totally ignore the fact that Creech was
initially confused by defense counsel’s voir dire question.6 While this is most likely because
they were applying Kentucky law (which does not seem to acknowledge juror confusion as
grounds for rehabilitation), the dissenters glossed over the fact that Creech’s initial answer
6
Contrary to Bowling’s claim that the dissent simply reached a different factual conclusion than this Court, see
R. 262 at 15, the Bowling dissent does not acknowledge why Creech gave the answer she did, see Bowling, 942
S.W.2d at 309.
19
was the result of confusion. See 5 T.E. at 758 62. Thus, not only did the dissent apply a
different body of law, it effectively asked a different question: Assuming that Creech’s
answer was the result of bias, was the trial court’s rehabilitation improper under Kentucky
law? That was not the question this Court—or federal constitutional law—asked. The
federal constitutional question was whether, given the initially confusing nature of Creech’s
voir dire, the trial court should have struck her for cause. The answer to that question was
clearly “No.”
See R. 259 at 34 35.
And since Bowling offers no evidence of the
debatability of the underlying federal constitutional question, a COA will not issue on this
sub-claim.
Peremptorily Struck Jurors: Bowling also seeks a COA for the sub-claims based on
the nine individuals he peremptorily struck from the jury pool. R. 262 at 15 19. This Court
rejected those sub-claims as clearly foreclosed by the Supreme Court’s decision in Rivera v.
Illinois, 556 U.S. 148 (2009), which held that violations of state-law peremptory rights do
not implicate the federal Due Process Clause. R. 259 at 44. All Bowling offers in support of
a COA are a misreading of Rivera and a citation to a pre-Rivera district court case. R. 262 at
15 17. Obviously, neither justifies a COA.
Bowling’s habeas petition attempted to distinguish his claim from prior Supreme
Court decisions based on an unusual feature of Kentucky law. Supreme Court precedent
holds that individuals who do not sit on the jury, deliberate, and deliver the verdict cannot
affect the defendant’s constitutional right to an impartial jury. See R. 259 at 43 (collecting
cases).
Bowling’s habeas petition tried to distinguish those cases by claiming that
Kentucky’s peremptory challenge law requires a different outcome in his case. R. 159 at
20
54 55. The Kentucky Supreme Court has determined that when a trial court’s erroneous
ruling on a defendant’s for-cause challenge forces her to exhaust all her peremptory
challenges, the defendant is entitled to automatic reversal. See Shane v. Commonwealth, 243
S.W.3d 336, 341 (Ky. 2007). Bowling seized on that decision, arguing that the trial court’s
erroneous rulings on his for-cause challenges unduly forced him to exhaust his peremptory
challenges and thus violated his right to freely exercise his peremptory challenges. R. 159 at
54 55.
This Court rejected that argument as clearly foreclosed by the Supreme Court’s
decision in Rivera. R. 44 45. There, the Supreme Court held that the fact a defendant was
erroneously denied an opportunity to exercise his state-law peremptory rights was of no
constitutional consequence. Rivera, 556 U.S. at 152, 156 62. The Justices reaffirmed the
principle that, so long as no biased juror sits on the jury, denying a defendant’s state-law
right to peremptory challenges is “not constitutionally significant.” Id. at 159.
Bowling initially challenges this Court’s decision by offering a tortured reading of
Rivera. See R. 262 at 16. He takes one clause from the opinion, ignores its context, and uses
it to justify a result that contravenes all of the reasoning in Rivera. Bowling quotes Rivera’s
statement that “state law determines the consequences of the erroneous denial of such a
challenge.” R. 262 at 16 (quoting Rivera, 556 U.S. at 152). Based on this isolated clause, he
argues that the federal Due Process Clause incorporates Kentucky law’s automatic reversal
rule for defendants who exhaust their peremptory challenges removing jurors that the trial
court should have struck for cause. See id. But reading the full passage from Rivera makes
21
it clear that the consequences set by state law do not matter under the federal Due Process
Clause. The full paragraph reads:
The right to exercise peremptory challenges in state court is determined by
state law. This Court has long recognized that peremptory challenges are not
of federal constitutional dimension. States may withhold peremptory
challenges altogether without impairing the constitutional guarantee of an
impartial jury and a fair trial. Just as state law controls the existence and
exercise of peremptory challenges, so state law determines the consequences
of an erroneous denial of such a challenge. Accordingly, we have no cause to
disturb the Illinois Supreme Court’s determination that, in the circumstances
Rivera’s case presents, the trial court’s error did not warrant reversal of his
conviction.
Rivera, 556 U.S. at 152 (internal quotations and citations omitted, emphasis added). The
meaning of the passage Bowling cites is clear: Just like the right to peremptory challenges is
a purely state-law issue, the consequences that state law attaches to violating those rights
have no constitutional impact. The passage therefore commands the opposite result that
Bowling claims it does.
Furthermore, the logical implication of Bowling’s reading defies Rivera’s repeated
admonitions that federal due process rights do not turn on the particulars of state law.
Bowling baldly asserts—with no supporting authority whatsoever—that this Court should
have reached a different outcome in his case because of the nature of Kentucky law. R. 262
at 16. In other words, because Kentucky requires automatic reversal when a defendant
exhausts his peremptory challenges while Illinois does not, Bowling has a constitutional right
that Rivera does not. Id. This assertion blatantly contradicts Rivera’s repeated admonition
that peremptory challenges are creatures of state law, and “[a] mere error of state law . . . is
not a denial of due process.” 556 U.S. at 158 (internal quotation marks omitted); see also id.
(declaring that the federal Due Process Clause “safeguards not the meticulous observance of
22
state procedural prescriptions, but the fundamental elements of fairness in a criminal trial”
(internal quotation marks omitted)). The fact that Kentucky values peremptory challenges
more than other states, and attaches more severe consequences to trial court rulings that
impair those rights, is “not constitutionally significant.” Id. at 159. Therefore, Rivera does
not offer any basis for a reasonable jurist to disagree with this Court’s decision.
Bowling also claims that Harlow v. Murphy, No. 2:05-cv-39-CAB, R. 210 (D. Wyo.
May 10, 2008) [hereafter, “Harlow”], demonstrates that reasonable jurists could debate this
Court’s decision. R. 262 at 16. In Harlow, the Wyoming district court granted a state
prisoner’s habeas petition based in part on the trial court’s refusal to allow him adequate
questioning of potential jurors in voir dire. See Harlow at 155 88. That case has no bearing
on this Court’s decision. First, Harlow is a pre-Rivera decision that cannot cast doubt on the
clear consequences dictated by Rivera’s holding. Second, Bowling mischaracterizes the
grounds for the district court’s decision. He asserts that the district court found a habeas
petitioner’s claim that he was “required to use a peremptory challenge against a person who
should have been excused for cause can be reviewed in federal habeas proceedings.” R. 262
at 17 (citing Harlow at 185 n.12). The Harlow court expressly disavowed any such holding
in the first sentence of the very footnote Bowling cites. The court declared that its “decision
is not based upon the belief that Mr. Harlow’s constitutional rights were violated because he
was forced to waste peremptory strikes on automatic death jurors.” Harlow at 185 n.12.
Therefore, even if Harlow were still relevant after Rivera, it provides no evidence that a
reasonable jurist to debate this Court’s decision.
23
Since Bowling has not demonstrated that this Court’s resolution of the underlying
constitutional issue in either sub-claim is reasonably debatable, a COA will not issue for
Claim 2.
I.
Claim 15 – Unconstitutionally Limited Voir Dire
Claim 15 of Bowling’s petition alleged that the trial court violated his constitutional
rights by impermissibly limiting his questions during voir dire. See R. 1 at 118–20; R. 159 at
159–61. This Court denied the claim for two reasons. First, none of the eight people
Bowling claims he was unable to fully question during voir dire actually served on the jury.
See R. 259 at 45. Second, the Kentucky Supreme Court’s affirmation of the limits that the
trial court placed on voir dire questioning was not objectively unreasonable. See id. at
46 49.
Bowling’s motion for reconsideration challenges the second reason, but says nothing
about the first. See R. 262 at 19 20. Indeed, it is hard to imagine that there is much he could
have said. It is clear that none of the trial court’s voir dire rulings that Bowling challenges in
Claim 15 involved individuals who actually sat on the jury and delivered a verdict. See
R. 259 at 45. That undeniable fact defeats any challenge Bowling could make based on their
questioning. The Supreme Court has repeatedly held that defendants’ constitutional jury
rights are not implicated by individuals who did not sit on the jury and render a verdict. See,
e.g., Skilling, 130 S. Ct. at 2923 & n.23 (holding that the defendant was not deprived of “any
constitutional right” where no partial juror sat on the jury (quotation and alterations
omitted)); Morgan v. Illinois, 504 U.S. 719, 726 (1992) (requiring that a claim show that a
biased juror “is empaneled and the death sentence is imposed”); Ross, 487 U.S. 81, 85 (1988)
24
(holding that “[a]ny claim that the jury was not impartial” rests “on the jurors who ultimately
sat”). The lone district court case that Bowling cites does not cast doubt on that wellestablished principle. See Harlow at 185 n.12 (explaining that the jurors who sat on the
defendant’s jury panel were not adequately questioned).
The Court’s ruling on Claim 15 is therefore not subject to reasonable debate and a
COA will not issue on the claim.
J.
Claim 3 – Evidence of the Mt. Vernon Shooting
Claim 3 argued that the trial court violated Bowling’s substantive due process right by
permitting Ricky Smith to testify that Bowling attempted to shoot him at the Sunoco Station
in Rockcastle. R. 159 at 90–100; see also Bowling, 942 S.W.2d at 300 01 (providing greater
detail about Smith’s testimony). The trial court gave the jury the limiting instruction that
Bowling requested, telling the jurors they could “not consider any alleged acts, of any
alleged criminal activity, as to Rockcastle County, as evidence of guilt as to the charges here
in Laurel County.” 19 T.E. 2808 10. On habeas, Bowling argued that the instruction he
requested at trial was “fundamentally unfair” because it did not specifically instruct the jury
on the incriminating inferences they could draw from the evidence. R. 159 at 90 92. Out of
an abundance of caution, this Court reviewed his claim de novo, though it is now clear that
§ 2254(d) applies.7 This Court rejected Bowling’s claim on two general grounds. First, the
7
This Court forewent § 2254(d) review because it was unnecessary to resolve the claim and because a case
pending before the Supreme Court would resolve the issue of whether § 2254(d) applied in such instances. See
R. 259 at 66 67 (citing Cavazos v. Williams, 132 S. Ct. 1088 (2012)). The Supreme Court has now issued a
decision confirming that § 2254(d) does apply. See Johnson v. Williams, --- S.Ct. ---, 2013 WL 610199 (U.S. Feb.
20, 2013). The state law that the Kentucky Supreme Court applied is a more protective standard than that contained
in the federal Due Process Clause. Compare Bowling, 942 S.W.2d at 300 01 (applying Kentucky Rule of Evidence
404(b), which allows evidence of other crimes, wrongs or acts so long as they are “sufficiently probative”), with
United States v. Lovasco, 431 U.S. 783, 790 (1977) (barring only evidence that “violates those fundamental
25
Supreme Court has repeatedly held that state-law evidentiary rulings, such as the limiting
instruction Bowling complains of here, are not subject to “fundamental fairness” challenges
under the Due Process Clause. R. 259 at 65 71 (collecting cases). Second, Bowling failed
to establish that the instruction prejudiced him at trial. Id. at 69 71. Bowling’s motion for
reconsideration does not present any evidence that this Court’s conclusion is subject to
reasonable debate.
As an initial matter, the authority cited by Bowling actually bolsters this Court’s
conclusion that Bowling’s claim lacks merit. See R. 262 at 23 (citing Henderson v. Kibbe,
431 U.S. 145, 154 (1977)). Bowling did not object to the limiting instruction used at trial.
Quite the opposite. Defense counsel formulated the limiting instruction that the trial judge
used. See 19 T.E. 2808 10. And “[i]t is the rare case in which an improper instruction will
justify reversal of a criminal conviction when no objection has been made in the trial court.”
Kibbe, 431 U.S. at 154. Even when the deferential standard of § 2254(d) is set aside,
Bowling’s underlying constitutional claim faces a burden “even greater than the showing
required to establish plain error on direct appeal.” Kibbe, 431 U.S. at 154. Nothing in the
motion for reconsideration suggests that reasonable jurists would find that Bowling’s claim
meets that heavy burden.
Bowling never denies that his claim runs afoul of the Supreme Court’s repeated
admonition that the Due Process Clause should not be used to second guess state-law
evidentiary rulings.
See R. 259 at 69 (explaining that Bowling’s claim contradicts the
conceptions of justice which lie at the base of our civil and political institutions” (internal quotation marks omitted));
see also Johnson, 2013 WL 610199 at *8 (holding that the presumption of a merits determination by the state court
will not be rebutted where the “state-law rule subsumes the federal standard—that is, it if as least as protective as the
federal standard”).
26
Supreme Court’s teachings in Dowling v. United States, 493 U.S. 342 (1990), and Perry v.
New Hampshire, 132 S. Ct. 716 (2012)). That line of precedent was this Court’s primary
ground for resolving Bowling’s claim. See id. at 65, 69. The Supreme Court has been
emphatic that federal courts should not use the open-ended standard of “fundamental
fairness” to determine what types of evidence should or should not be admitted at trial. See,
e.g., Perry, 132 S. Ct. at 723 (collecting cases). To go one step further by nitpicking the
particular limiting instruction that a trial court used would totally disregard the limited role
the Due Process Clause plays in evidence law. Consequently, Bowling has not made a
cognizable due-process claim, and the particular facts of his case do not matter.
Bowling asserts that the three-Justice dissent in Dowling demonstrates that reasonable
jurists could disagree with this Court’s application of the Due Process Clause. See R. 262 at
20−22. Again, Bowling uses selective quotation to mischaracterize a case. 8 This time, he
portrays Justice Brennan’s dissent as arguing that the evidence in Dowling violated the Due
Process Clause. See id. Not so. The dissent in Dowling focused exclusively on the Double
Jeopardy Clause. See Dowling, 493 U.S. at 354 (Brennan, J., dissenting) (“Because the
introduction of this testimony effectively forced petitioner to defend against charges for
which he had already been acquitted, the doctrine of criminal collateral estoppel grounded in
the Double Jeopardy Clause should have prohibited the Government from introducing the
testimony.”). The dissent never suggested that the Due Process Clause barred introduction of
the evidence. And as this Court’s opinion explained, the double-jeopardy issue in Dowling
8
Of course, now that it is clear that § 2254(d) applies, see Johnson, 2013 WL 610199 at *8, a dissent in a
Supreme Court case is irrelevant to the debatability of Bowling’s due-process claim, see Terry Williams v. Taylor,
529 U.S. 362, 412 (2000) (Opinion of O’Connor, J.) (clarifying that § 2254(d) limits the “clearly established Federal
law” that can overturn a sentence to the Supreme Court’s holdings).
27
was not present here because Bowling had not been tried for the Rockcastle shooting. See
R. 259 at 68. Bowling presents no other case as evidence that a reasonable jurist would use
the federal Due Process Clause to question the adequacy of a state-law limiting instruction.
There is also no reasonable basis to debate whether Bowling was unduly prejudiced.
Bowling’s claim to prejudice boils down to this: Because the trial court told the jurors not to
use Ricky Smith’s testimony to infer that Bowling committed the two murders, this Court
should assume that the jurors did precisely the opposite. See R. 262 at 22 26. That is not a
reasonable argument. In fact, given that the argument asks this Court to defy the wellestablished principle that courts must presume that jurors followed the instructions they are
given, it is decidedly unreasonable. See, e.g., United States v. Ham, 628 F.3d 801, 811 (6th
Cir. 2011) (“The general rule is that a jury is presumed to follow the district court’s
instructions . . . .” (citing United States v. Moreno, 933 F.2d 362, 368 (6th Cir. 1991)); Scott
v. Mitchell, 209 F.3d 854, 879 (6th Cir. 2000) (holding that courts must presume curative
instructions were effective unless “there is an ‘overwhelming probability’ that they were
ignored” (quoting Richardson v. Marsh, 481 U.S. 200, 208 (1987)).
Bowling makes much of the fact that the jurors were not instructed on what inferences
they could draw. See R. 262 at 23 26. Yet he offers no case in which a court—or even a
dissenting judge—has argued that the failure to supplement an admonishing instruction with
a list of permissible inferences prejudices a defendant. To be sure, the decisions Bowling
cites did emphasize the limiting instruction that the trial court gave. See id. at 23 (citing Bey
v. Bagley, 500 F.3d 514, 521 (2007) and Dowling, 493 U.S. at 353). But no reasonable jurist
has suggested that jurors—simply because the trial court did not identify the inferences they
28
could draw—would impermissibly apply evidence in the face of a limiting instruction.
What’s more, Bowling urges this theory in a case where he received the limiting instruction
that he requested, see 19 T.E. 2808 10, and did not object to any of the prosecutor’s closing
argument that he now claims prejudiced him, see 24 T.E. 3571 73, 3577, 3579 80,
3583 92; see also R. 262 at 22 24 (claiming that the closing argument was improper and
somehow overrode the limiting instruction). Given the facts of his case, no reasonable jurist
would take the logical leap required by Bowling’s novel theory. See, e.g., Kibbe, 431 U.S. at
154; Namet v. United States, 373 U.S. 179, 190 (1963) (“We see no reason to require such
extravagant protection against errors which were not obviously prejudicial and which the
petitioner himself appeared to disregard.”).
The other cases that Bowling cites have no bearing on his claim. See R. 262 at
23 25. They all address whether the jury instructions given prior to deliberation led the
jurors to apply presumptions to the evidence that absolved the prosecution of its reasonabledoubt burden. See Estelle v. McGuire, 502 U.S. 62, 78 80 (1991) (O’Connor, J., concurring)
(expressing concern that the jury instruction led jurors to take it for granted that the
defendant had committed the violent acts described by the prior acts evidence produced at
trial); Kibbe, 431 U.S. at 153 157 (rejecting the petitioner’s argument that the trial court’s
use of the statutory language as jury instructions, without including a specific instruction on
causation, violated his due process rights); Cupp v. Naughten, 414 U.S. 141, 149 (1973)
(rejecting the defendant’s argument that the trial court’s instruction that jurors should
presume that witnesses speak the truth violated his due process rights). Not only do they
address a completely different constitutional issue, they adopt a much different theory of
29
juror decision making than Bowling’s. The Justices’ concern in these cases was that jury
instructions might affirmatively mislead jurors into assuming facts the prosecution had to
prove. None suggested that a lack of specific instruction about permissible inferences would
undermine an admonishment against impermissible ones.
Since Bowling has not presented any evidence that reasonable jurists would debate
this Court’s resolution of Claim 3, no COA will issue on it.
CONCLUSION
Accordingly, it is ORDERED as follows:
(1)
Petitioner Ronnie Bowling’s Motion for Reconsideration, R. 262, is DENIED
IN PART and GRANTED IN PART.
(2)
Pursuant to 28 U.S.C. § 2253(c)(2), Bowling is GRANTED a Certificate of
Appealability on Claims 6 and 36, R. 262 at 5 6. The question on appeal is
limited to the same issue in Wheeler: Whether Kentucky’s statutory scheme
for proportionality review of capital sentences is constitutional.
(3)
Bowing is DENIED a Certificate of Appealability for all his other claims.
R. 262 at 7 26.
This the 21st day of March, 2013.
30
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