Thomas Clyde Bowling, Jr. v. Phillip Parker, Warden
Docket: 01-5832
Court: Court of Appeals for the Sixth Circuit; December 30, 2003; Federal Appellate Court
Thomas Clyde Bowling, Jr. appeals the denial of his habeas corpus petition and request for an evidentiary hearing by the district court, following his conviction for the murder of Tina and Eddie Earley, for which he received a death sentence. Bowling's conviction and sentence were upheld by Kentucky courts on direct appeal and during post-conviction proceedings. He raises multiple claims of error, including improper jury instructions, ineffective assistance of counsel, denial of an evidentiary hearing, unfair jury selection, prosecutorial misconduct, and a constitutionally disproportionate sentence. The court affirms the district court's decision, denying both the habeas corpus petition and the evidentiary hearing request.
The factual background outlines the events of April 9, 1990, when Eddie and Tina Earley were shot in their car, with their two-year-old son injured but surviving. Police collected various witness testimonies and evidence, including bullets and debris indicating a car collision. They identified a 1981 light blue Chevrolet Malibu, registered to Bowling, as the suspect vehicle but did not arrest him initially. The day after the murders, Bowling's family reported him missing, prompting police to locate him at a family property, where they also found his car and a buried firearm. Bowling was defended at trial by a team of three attorneys who arranged for neurological and psychological evaluations before the trial.
On December 10, 1990, the trial commenced with the objective of qualifying jurors. Initially, the court aimed to qualify forty-four jurors for the defendant's eighteen peremptory challenges and the government's twelve, but ultimately qualified forty-eight jurors before striking four. The guilt phase began on December 12, during which the Commonwealth presented twenty-five witnesses, including three eyewitnesses to the crime. Larry Turner arrived after hearing what he thought was gunfire but did not see the shooter. David Boyd witnessed a man firing a gun into a car and described the shooter and the vehicle. The third eyewitness, Norman Pullins, was unavailable, but his police interview audiotape was played for the jury.
Evidence presented included the recovery of items from the Bowling property, such as a Malibu car, an orange jacket, and a black hat, alongside an unused outhouse containing empty alcohol bottles. A firearm linked to the crime was found on the property. Expert testimonies included a forensic pathologist confirming the fatal injuries sustained by the victims and an automotive expert linking the crime scene debris to Bowling's car. Paint evidence suggested mutual contact between Bowling's and the victims' vehicles. A ballistics expert identified the recovered gun as a Smith and Wesson .357, noting that while it matched the crime scene bullets, numerous guns could produce similar markings. Additionally, Clay Brackett testified to selling a similar firearm to Bowling shortly before the murders, and witnesses placed Bowling near the crime scene on the night of the incident.
Bowling's family testified about his severe depression and obsession with death leading up to the shootings, including a concerning conversation with his mother where he indicated he might disappear. They noted he had recently purchased a gun from Brackett. The defense did not call any witnesses and chose not to present expert testimony from Dr. Beal. After consulting with his counsel, Bowling decided not to testify. The defense focused on cross-examinations, highlighting inconsistencies in witness statements and Bowling's erratic behavior prior to the shootings. They established that no blood was found on Bowling's possessions and that the gun lacked fingerprints; lead residue found could originate from various sources. The defense requested jury instructions on extreme emotional disturbance and other defenses, which the trial court denied. Bowling was convicted of intentionally murdering Tina and Eddie Earley and assaulting their son, Christopher.
Before the penalty phase, Bowling expressed dissatisfaction with his attorneys, claiming they had not adequately represented him or met with him enough, although he could not specify witnesses or actions they failed to take. His motion to discharge his attorneys was denied. During the penalty phase, the defense called six witnesses, including family members and friends, who testified about Bowling's character, his mental decline, and personal struggles. Bowling did not testify during this phase.
The trial court denied Bowling's request for specific mitigating jury instructions related to extreme emotional disturbance, mental illness, intoxication, and model jail conduct, but provided a general mitigating instruction. It instructed jurors on the statutory aggravating factor of intentionally causing multiple deaths, which led to the jury recommending two death sentences. The trial judge subsequently sentenced Bowling to death.
Bowling's conviction and sentences were reviewed by the Kentucky Supreme Court, which affirmed the decision on September 30, 1993, with two justices dissenting on the lack of an instruction on extreme emotional disturbance and one justice dissenting due to alleged prosecutorial misconduct.
Bowling initiated post-conviction proceedings in a state circuit court but made a procedural error by not filing the actual motion for post-conviction relief after submitting a notice of intent. After the Governor set an execution date, the Kentucky Supreme Court ruled that the execution could not be stayed without the motion being filed. A hurried RCr 11.42 motion was filed on January 26, 1996, and an additional request for time to file a supplemental motion was granted. However, the later filed supplemental motion was not verified as required and was eventually stricken by the circuit court for being unverified and untimely, precluding those claims from consideration. The circuit court, while recognizing its power to allow amendments, chose not to and ruled against Bowling on all remaining claims.
The Kentucky Supreme Court unanimously affirmed the circuit court's decisions, dismissing the initial RCr claims as meritless and reviewing claims from the stricken supplemental motions, ultimately denying those on the merits. Bowling later filed a writ of habeas corpus in federal district court, which was denied despite a request for an evidentiary hearing. The district court granted a certificate of appealability for all issues raised.
Legal conclusions from district courts denying habeas relief are reviewed de novo. Bowling's habeas petition, filed on August 12, 1999, is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, relief is available for claims adjudicated on the merits in state court only if the adjudication either (1) resulted in a decision contrary to or involving an unreasonable application of clearly established federal law as determined by the Supreme Court, or (2) was based on an unreasonable determination of the facts in light of the evidence presented in state court. State court findings are presumed correct unless Bowling can demonstrate clear and convincing evidence of their errors.
Before addressing the merits of Bowling's appeal, the court considers the state's argument regarding procedural default. The state contends that claims in Bowling's supplemental RCr motions, which were struck by the trial court, are defaulted and cannot be brought in federal habeas. However, the court rejects this contention, noting that if a petitioner defaults on federal claims in state court, federal relief is barred unless he shows cause for the default and actual prejudice, or a fundamental miscarriage of justice. The court outlines a four-pronged test for examining procedural default allegations, focusing on whether an applicable procedural rule was enforced and whether the state courts relied on that procedural bar in their disposition. The Supreme Court has stated that merely having a basis for a state procedural bar does not deprive federal courts of jurisdiction unless the state court explicitly relied on that procedural bar for its judgment.
The Kentucky Supreme Court's opinion indicates it did not definitively rely on Bowling's procedural default in dismissing his claims. Although the claims were raised in struck supplemental pleadings, the court opted to review the merits, stating it would consider the seven additional claims of ineffective assistance of counsel for judicial economy. This presents two interpretations: the court could be acknowledging the procedural default while dismissing the claims on the merits as an alternative holding, or it could be waiving the procedural default altogether, thus permitting the review of the claims. The ambiguity created by the use of "notwithstanding" suggests that either interpretation is plausible, with the latter being reinforced by the court's decision to address the merits. Consequently, both interpretations favor Bowling, as an unambiguous reliance on procedural default is necessary to impede review.
Bowling's claims are categorized into six areas, including improper jury instructions, ineffective counsel, denial of an evidentiary hearing, invalid jury composition, prosecutorial misconduct, and disproportionate sentencing. Specifically, Bowling argues he was denied proper jury instructions in both the guilt and penalty phases, asserting that the trial court failed to provide a lesser-included-offense instruction related to extreme emotional disturbance (EED). He contends that had the jury been instructed on EED, they might have convicted him of manslaughter instead of murder. Ultimately, however, the court finds Bowling's claim regarding improper jury instructions unpersuasive and dismisses it.
The Supreme Court ruled that failing to provide a lesser-included-offense instruction can breach due process rights, as established in Beck v. Alabama. In this case, the defendant, Beck, was charged with intentional murder after an incident involving a robbery that resulted in a victim's death, which he denied intending. The state law prevented the jury from considering the lesser-included offense of felony murder, leading to Beck’s conviction and death sentence. The Supreme Court determined that not allowing the jury to consider a lesser offense increases the risk of wrongful conviction.
Under Kentucky law, manslaughter qualifies as a lesser-included offense of murder, meaning that a jury should be instructed on it if warranted by evidence. However, due process does not mandate such an instruction if there is insufficient evidence to support it. The requirement for a lesser-included offense instruction is met only if there is evidence that could lead a rational jury to convict of the lesser offense instead of the greater offense. The Kentucky Supreme Court found that the evidence did not support a finding of extreme emotional disturbance (EED) necessary for a manslaughter instruction.
The legal analysis hinges on whether the Kentucky Supreme Court's conclusion about the evidence was unreasonable. The determination of what constitutes EED is a matter of state law, and any claim for lesser-included offense instructions must first assess the elements of the applicable offenses based on state law.
Extreme emotional disturbance (EED) is characterized as a temporary state of mind that impairs judgment, causing uncontrollable actions driven by emotional distress rather than malicious intent. It is not classified as a mental illness; instead, a reasonable justification for the emotional state must be established from the defendant's perspective under their believed circumstances. Kentucky case law states that a significant, "sudden and uninterrupted" triggering event must occur to substantiate a claim of EED, which cannot be based solely on past trauma or mental health issues.
In the case at hand, Bowling contends that the car accident that preceded his actions constituted such a triggering event, claiming it provoked an uncontrollable rage leading him to kill the Earleys. He argues that this provides a rationale for the killings, suggesting that the accident must have incited his response. However, Bowling has not presented evidence to support his assertion of needing an EED instruction, merely inferring causation from the accident itself.
The circumstances surrounding the accident do not support Bowling's claim of EED. The collision involved a parked car in a parking lot, resulted in no injury to Bowling, and caused only minor damage to both vehicles. Additionally, Bowling's car remained operable, and he was aware of the impending collision, indicating either intent or foreknowledge rather than a loss of control. Given these factors, Bowling's assertion of EED is deemed implausible, lacking objective justification for his emotional response to the minor accident. Thus, a minor car accident does not provide a reasonable explanation or excuse for committing a double homicide, as established by Kentucky law.
Bowling's mental state leading up to the shootings was characterized by severe depression, alcohol use, and morbid preoccupations, including suicidal comments to his mother. He purchased a gun shortly before the incident, actions that he argues demonstrate extreme emotional disturbance (EED). However, under Kentucky law, EED must be a temporary reaction to a specific event, rather than a broad mental illness. The evidence presented points to a generalized mental disturbance rather than a temporary emotional response to the accident, undermining Bowling's claim for an EED instruction. Consequently, the Kentucky Supreme Court's decision not to grant such an instruction was not deemed objectively unreasonable.
In terms of jury instructions during the penalty phase, Bowling contended that he should have received specific instructions regarding EED, mental illness, and intoxication. Instead, he was given a general mitigating instruction, which the Kentucky Supreme Court upheld as constitutionally sufficient, referencing the U.S. Supreme Court's ruling in Boyde v. California. The Supreme Court found that a general catch-all instruction on mitigation is adequate unless it creates a reasonable likelihood of juror confusion about considering relevant evidence. The jury instructions effectively clarified that the defendant is presumed innocent, that the prosecution must prove aggravating circumstances beyond a reasonable doubt, and that mitigating evidence must be considered. The instructions also allowed the jury to consider various mitigating factors, including the defendant's lack of significant prior criminal activity.
The instruction provided to the jurors explicitly permits them to consider mitigating evidence, such as evidence of extreme emotional disturbance (EED), mental illness, and intoxication. There is no indication that the jury failed to consider these factors. A precedent case, Payton v. Woodford, highlights a situation where a defendant was granted habeas relief due to the jury potentially overlooking substantial mitigating evidence because of restrictive jury instructions. However, a lack of specific instructions on EED or mental illness does not constitute a constitutional violation.
Bowling's claims of ineffective assistance of counsel derive from six main allegations. He argues that his counsel was deficient for failing to: (1) investigate the victims' drug activities, which could have revealed another suspect; (2) consult with him adequately before and during the trial; (3) present evidence for an EED instruction and general mitigation; (4) prepare properly due to a pending indictment against one of his attorneys; (5) contact a potentially exculpatory witness; and (6) effectively impeach government witnesses.
To succeed in these claims, Bowling must demonstrate that his counsel's performance was constitutionally deficient and that he suffered prejudice as a result. This involves proving that the performance fell below an objective standard of reasonableness and overcoming the presumption that the actions taken were sound trial strategy. Additionally, Bowling must show a reasonable probability that the outcome would have been different had his counsel acted appropriately.
His first claim focuses on the failure to investigate the Earleys' drug involvement, suggesting that had this investigation been conducted, it might have led to identifying Donald Adams as the shooter. Bowling cites a memorandum from his attorneys that outlines necessary pre-trial tasks, including an interview with the chief of Lexington police regarding the victims' drug activities and a potential interview with Donald Adams, neither of which occurred.
Bowling asserts that had Walsh been interviewed, his legal counsel would have uncovered evidence implicating Donald Adams as the true murderer of the Earleys, or at least created reasonable doubt surrounding Bowling's guilt. However, the theory that Adams was involved is deemed implausible. Bowling fails to clarify how Adams could have committed the murders, stolen Bowling's car, and then left it on Bowling's family property, while also not addressing why Adams would frame Bowling or how he would know the location of the family property. Additionally, the identification of Bowling near the crime scene by witnesses contradicts this theory.
Bowling's inability to establish a credible connection between Adams and the murders weakens his claim of ineffective assistance of counsel, as the decision not to pursue this line of investigation appears reasonable. The memorandum Bowling cites to support his claim indicates that his defense team was organized, and their failure to accomplish all tasks suggests ambition rather than negligence. Furthermore, Bowling has not demonstrated any prejudice resulting from his counsel's actions, as he has not shown that an interview with the police chief would yield incriminating evidence against Adams.
Bowling also claims ineffective assistance based on his counsel's lack of preparation and failure to consult with him adequately, asserting he had insufficient opportunity to explain the case details. He contends that despite the absence of witnesses presented by his attorneys, there were many potential witnesses who could have been called. The Kentucky Supreme Court dismissed this claim, concluding that the trial strategy employed by Bowling's counsel was more favorable than any alternative strategies. Consequently, Bowling has not effectively demonstrated a constitutional deficiency in his counsel’s performance.
The Supreme Court has clarified that the Sixth Amendment concentrates on the adversarial process rather than the relationship between the accused and their attorney. In Wheat v. United States, it was noted that a lack of extensive consultation does not inherently violate the Strickland standard for effective counsel, as evidenced by Dick v. Scroggy, where insufficient consultation time was deemed acceptable in a non-capital case. However, in Harris By and Through Ramseyer v. Wood, the court granted habeas relief due to inadequate consultation in a capital case. Despite Bowling's claims of only a one-hour consultation with his trial counsel, he failed to provide supporting evidence, such as a personal affidavit. His attorneys acknowledged their general strategy but did not address the one-hour consultation claim in their affidavits. Bowling's assertion appeared implausible, particularly as his lawyers managed to engage witnesses for testimony without significant input from him. Even if the one-hour figure were accurate, Bowling could not demonstrate how additional consultation would have affected the trial's outcome, failing to identify specific witnesses or articulate how more time with counsel would have benefitted his case. Consequently, he could not establish the necessary prejudice under Strickland. Additionally, Bowling's claim of ineffective assistance due to the failure to present evidence of extreme emotional disturbance (EED) was rejected. He argued that his lawyers did not adequately prepare their expert witness, Dr. Beal, and failed to present him during the penalty phase, but did not substantiate these claims effectively.
Bowling contends that his defense counsel during the penalty phase failed to present significant evidence regarding his troubled childhood, including a growth removal at age seven, serious head injuries, an alcoholic father, and his own history of alcohol abuse and blackouts. However, the Kentucky Supreme Court dismissed these claims as lacking merit. Bowling argues that his attorney Beal's analysis was inadequately performed, yet Beal had invested considerable time, interviewing Bowling's family and reviewing records. Bowling's main grievance revolves around the decision not to call Dr. Beal as a witness, despite potential justifications for this choice. Testifying about Bowling’s mental state could imply guilt, conflicting with Bowling's insistence on maintaining his innocence. Bowling accuses his attorneys of laziness for resting his case without calling Beal, citing a statement indicating they were considering it but ultimately decided against it due to Beal's unavailability. Nevertheless, the summary suggests that not calling Beal may have been advantageous for Bowling, as Beal’s report indicated Bowling was legally sane and did not support a claim of extreme emotional disturbance (EED). Additionally, Beal's assessment characterized Bowling as angry and asocial, and indicated that his actions were premeditated rather than impulsive, undermining any EED instruction that Bowling sought under Kentucky law.
Bowling's counsel made a reasonable choice to rely on the testimonies of Bowling's sister and mother, who highlighted his deteriorating mental state, rather than pursuing Dr. Beal's testimony, which was unlikely to benefit Bowling's defense. Dr. Smith, the state’s mental health expert, provided a more favorable report, stating that Bowling may have lacked substantial ability to comprehend the criminality of his actions due to mental health issues, including alcohol abuse and potential psychiatric disorders linked to the loss of his wife. Bowling failed to demonstrate ineffective assistance of counsel regarding the omission of Dr. Beal's testimony, as he could not prove that this omission resulted in prejudice. Moreover, Bowling argued that his counsel should have presented evidence of his childhood head injury, family history of alcoholism, and other personal issues. However, much of this information was already partially presented through family testimonies, and Bowling did not provide sufficient evidence regarding his father's alcoholism. The counsel's decision to focus on Bowling's drinking and mood swings was deemed strategic, and the minor childhood incidents were considered too trivial to impact the case significantly. Bowling could not establish deficiency or prejudice as defined by relevant legal precedents.
Ineffective assistance of counsel was found in Carter v. Bell due to the failure to present medical records indicating multiple head injuries and psychiatric recommendations, and in Glenn v. Tate for not introducing evidence of the defendant's organic brain damage and mental retardation. Bowling argued his attorney, Summers, was unprepared after learning of his indictment on the first day of trial, supported by an affidavit from another attorney, Baldani, who noted Summers' distress. However, the Kentucky Supreme Court concluded there was no evidence that the indictment negatively impacted Bowling's trial. Additionally, Bowling did not claim that Baldani's performance was inferior to that of Summers. Baldani effectively cross-examined Detective Henderson, who testified regarding Bowling's arrest and evidence retrieval, and no deficiencies were identified in Baldani's questioning.
Bowling also claimed ineffective assistance for failing to investigate a police message suggesting another potential witness. Although Bowling's counsel's performance could be deemed deficient, he failed to demonstrate prejudice, as there was no evidence to suggest the unidentified witness would support his defense. The witness described the incident as a minor fender bender, which could undermine Bowling's argument that the accident provoked him to act uncontrollably. The Kentucky Supreme Court emphasized this point, indicating the potential witness's testimony might have been detrimental to Bowling's case.
The denial of the Extreme Emotional Disturbance (EED) instruction was due to insufficient evidence demonstrating the impact of the collision on the Appellant, as established in Bowling II, 981 S.W.2d at 549. Additionally, Bowling's claim of ineffective assistance of counsel, based on inadequate cross-examination of witness Clay Brackett—who sold the murder weapon—was also rejected by the Kentucky Supreme Court. Bowling alleged that Brackett's testimony was influenced by a covert deal with police, but failed to provide evidence supporting this assertion, rendering the court’s decision reasonable.
Bowling further contended that the district court erred by denying him a federal evidentiary hearing linked to his habeas petition, specifically regarding a Brady claim and ineffective assistance claims. He sought to investigate potential prosecution documents connecting the Earleys to Donald Adams and to determine if his counsel inadequately investigated a supposed agreement between Brackett and the government. Despite Bowling not receiving a post-conviction evidentiary hearing in Kentucky, he requested one in his direct appeal and post-conviction process.
The court determined that Bowling met the diligence requirement under 28 U.S.C. § 2254(e)(2), as he actively sought an evidentiary hearing and provided supporting documents in state court. However, meeting this requirement did not guarantee him an evidentiary hearing; the court needed to assess whether the district court abused its discretion in denying the request.
A habeas petitioner is entitled to a hearing if they present sufficient grounds for release, there are disputed relevant facts, and the state courts did not provide a fair evidentiary hearing. However, mere bald assertions or conclusory allegations, even in death penalty cases, are insufficient to compel the state to engage in discovery or to warrant an evidentiary hearing. In Bowling's case, his claims that another individual committed the murders and that a co-defendant had a deal with the government were deemed conclusory and lacked supporting evidence, leading the court to deny an evidentiary hearing without finding an abuse of discretion.
Bowling also raised claims of prosecutorial misconduct, which the Kentucky Supreme Court found to lack merit on direct appeal. In habeas review, such claims are assessed with deference, requiring misconduct to have fundamentally infected the trial to constitute a denial of due process. The court evaluates whether the prosecutor's remarks misled the jury, their extent, whether they were intentional or accidental, and the strength of the evidence against the defendant. Although the prosecutor's comments might have violated due process if considered on direct appeal, the court's focus in this habeas petition is whether the state court's ruling constituted an unreasonable application of established federal law. Bowling's initial claim regarding the presumption of innocence was initiated during voir dire with an analogy about driving a standard transmission.
The prosecution's statements in the trial did not undermine the presumption of innocence for the defendant, Bowling. The prosecutor emphasized that the jury should not assume guilt before hearing evidence, reinforcing that Bowling is presumed innocent until proven guilty. Additionally, the prosecutor clarified that the burden of proof lies with the Commonwealth, ensuring the jury understood their role.
Bowling contends that the prosecution improperly commented on his silence during trial. He references two specific remarks: one made during the guilt phase about Bowling's motive for the crime, stating, "only the man that pulled the trigger knows," which he argues implies an acknowledgment of his decision not to testify. However, Bowling did not object to this comment during the trial.
In the penalty phase, the prosecutor commented on Bowling's planning and lack of remorse, which Bowling did object to, claiming it also referenced his silence. Legal precedent prohibits prosecutors from commenting on a defendant's choice not to testify, as established in Griffin v. California and Rachel v. Bordenkircher. Nevertheless, prosecutors are allowed to summarize evidence and discuss its significance. Ultimately, Bowling's claims regarding the presumption of innocence and comments on his silence are dismissed as lacking merit.
A court evaluates statements that indirectly reference a defendant's decision not to testify using four factors: 1) whether the comments were intended to reflect on the defendant's silence or would be perceived as such by the jury; 2) the extent of the remarks; 3) the overwhelming nature of the guilt evidence; and 4) the timing and nature of any curative instructions given. In this case, the prosecution's comments were deemed singular and inadvertent, only marginally touching on the defendant Bowling's silence. The first comment, which was not objected to, likely intended to convey the prosecution’s thoroughness in establishing motive rather than highlighting Bowling's silence. The second comment emphasized Bowling's actions during the crime, not his courtroom silence. Therefore, these remarks did not constitute a constitutional error.
Bowling also argued that the prosecutor diminished the jury's responsibility in deciding on the death penalty, referencing the Supreme Court's ruling in Caldwell, which prohibits shifting the responsibility for such determinations away from the jury. However, Bowling's claims regarding the prosecutor’s statements in closing arguments do not reveal Caldwell violations, as they mischaracterize the prosecution's remarks. The prosecution's comments about Bowling’s character and the legislative context of the death penalty were not improper under the established legal standard.
Bowling failed to demonstrate that the prosecution's statements misrepresented the jury's role as required by Caldwell. The first statement, where the prosecutor indicated that jurors could not "recommend" the death penalty without first finding an aggravating factor, was not a violation because the term "recommend" is consistent with Kentucky law, as established in Kordenbrock v. Scroggy. Therefore, this statement did not constitute a Caldwell violation.
The second statement, referencing society's moral outrage in the context of the death penalty, was derived from Justice Potter Stewart's remarks in Furman v. Georgia. Bowling contends this quote misled the jury regarding its role, but the court found no explicit misinformation present. Instead, Bowling's argument aligns more closely with the principles in Viereck v. United States, which addresses the dangers of inflammatory remarks unrelated to the case. However, established case law indicates that appeals to the jury's community conscience are generally permissible unless they explicitly incite juror passions. The court highlighted that a case-by-case analysis is necessary, referencing Solivan, where a prosecutor's remarks were deemed to infringe upon the defendant's right to a fair trial due to their inflammatory nature.
In United States v. Alloway, the Sixth Circuit upheld a prosecutor's statement urging jurors to act as the community's conscience, emphasizing societal intolerance for certain behaviors. The Solivan court distinguished Alloway by highlighting that Alloway's comments were general and not focused on a specific crime, whereas the prosecutor in Solivan explicitly urged the jury to convict to send a message about the drug problem. In Buell v. Mitchell, the court again differentiated between Alloway and Solivan, ruling that the prosecutor's remark about sending a message to potential offenders was a general statement about the necessity to convict for serious crimes, not a direct appeal to societal issues. The court concluded that the prosecutor's comments in the current case, which referred generally to the need to punish the guilty without linking the defendant to a specific societal fear, did not violate the defendant's due-process rights. Although the statements were not deemed proper and prosecutors were cautioned to avoid such arguments, they were not considered so improper as to render the trial fundamentally unfair. Additionally, during the penalty phase, the prosecutor made remarks suggesting emotional pleas from family members, which raised concerns about potential misconduct, but these statements were not directly addressed in terms of their legal implications.
Bowling contends that the prosecutor's comments violated the Golden Rule, which improperly pressures juries to base their decisions on factors unrelated to the defendant's culpability, as referenced in Dean v. Commonwealth. However, the court found the remark to be isolated and not indicative of a decision-making basis outside of Bowling's culpability. Citing Simpson v. Jones, the court concluded that the comment was not fundamentally unfair and did not constitute a denial of due process.
Bowling also claims prosecutorial misconduct regarding the prosecutor's statement during the penalty phase, asserting that the jury did not need to reconsider the aggravating circumstance already established in the guilt phase. According to Kentucky law, the jury had sufficient basis for the death penalty since Bowling was guilty of intentional double homicide. The court ruled that the instructions did not violate Bowling's rights, as aggravating circumstances can be found during either phase, and the jury was still required to establish these beyond a reasonable doubt.
Lastly, Bowling argues that the prosecution improperly suggested the jury could disregard his mitigation evidence. The prosecutor's remarks implied that the jury had discretion regarding mitigating circumstances, which Bowling argues undermined their obligation to consider such evidence, as mandated by Boyde v. California. The court addresses these concerns within the context of established legal precedents and concludes that the prosecution's comments did not infringe upon Bowling's constitutional rights.
An argument was made regarding potential improper jury influence concerning mitigating evidence, suggesting that the prosecutor's remarks could mislead the jury. However, it is more likely these remarks were interpreted as asserting the absence of mitigating evidence. Citing Lent, the court noted that constitutional error would not exist if there were other plausible explanations for the prosecutor's comments. Even if an error occurred, it was deemed isolated and unintentional, having no impact on the jury’s decisions since the jury was instructed to consider mitigating evidence.
Bowling's claims of prosecutorial misconduct were found to not violate due process. Regarding jury selection, Bowling argued that Juror Charles Livingston, identified as an "automatic death penalty" juror, should have been excluded for cause, as established in Morgan v. Illinois. The standard for exclusion hinges on whether a juror's views would materially impair their duties. The trial judge's assessment of juror impartiality typically receives deference and is presumed correct unless clear evidence suggests otherwise.
The trial court conducted an extensive inquiry with Livingston, confirming he could consider all penalties, including the death penalty, if selected as a juror. The court determined that Bowling's claims regarding jury selection lacked merit, particularly focusing on Livingston's ability to impartially fulfill his role as a juror.
The court inquired whether, despite a guilty verdict for intentional murder, a penalty of twenty years could be considered if warranted by the case's circumstances. The juror, Livingston, affirmed this possibility. When questioned by defense counsel, he initially hesitated to confirm that he would automatically impose the death penalty, indicating that such a decision would depend on the trial's proof of guilt. When pressed further about a situation involving multiple intentional killings, he asserted he would vote for the death penalty. However, the court later clarified whether he would consider mitigating circumstances alongside the facts of the case. Livingston expressed a willingness to evaluate all relevant factors, including mental state and mitigating evidence, rather than automatically assign the death penalty. Ultimately, although he mentioned a predisposition towards punishment for intentional killings, he maintained that he would consider all available options, including lesser sentences. The trial court concluded that Livingston was not an "automatic death penalty" juror, as he demonstrated an ability to weigh mitigating evidence, which aligns with the standards set in Morgan v. Illinois. Despite initial statements suggesting otherwise, his consistent acknowledgment of the need to consider mitigating factors led to the denial of the challenge for cause against him.
There is no constitutional error regarding the trial court's determination of juror impartiality, affirming the Kentucky Supreme Court's decision in Bowling I. Bowling's claim that he improperly used peremptory challenges to strike jurors who should have been disqualified for cause does not constitute a constitutional injury. The Supreme Court has established that as long as the jury is impartial, the use of peremptory challenges does not violate the Sixth Amendment. Regarding Bowling's argument about the proportionality review of his death sentence, the Supreme Court mandates only that the punishment must be proportional to the crime, not necessarily to sentences in other cases. Although Kentucky law requires a comparative proportionality review, it does not constitute a federal due-process right. Bowling's assertion that the Kentucky Supreme Court's failure to find his sentence disproportionate violated his due-process rights is questionable, as the Kentucky statute does not create a defined liberty interest. Thus, any claimed violation of state law does not equate to a federal due-process infringement.
The legal analysis centers on the proportionality review conducted by the Kentucky Supreme Court regarding Bowling's death sentence. The court's statute outlines considerations but does not dictate how decisions should be made, implying no due-process right exists under Coe. The Kentucky Supreme Court performed a comparative proportionality review and found that Bowling's death sentence was not excessive or disproportionate compared to other capital cases. Bowling contends that the court should have compared his sentence to similar crimes where the death penalty was not imposed; however, Kentucky law does not require this broader comparison. His argument suggests a critique of Kentucky's proportionality framework rather than a misapplication of it, which undermines his due-process claim. The court emphasizes that as long as Kentucky follows its established procedures, no due process violation occurs. It also draws a parallel to Ohio's proportionality review, noting the state's discretion in defining comparison cases. Ultimately, the court rejects Bowling's arguments and affirms the district court's judgment, denying his habeas corpus relief claims and the request for an evidentiary hearing. Additionally, it mentions that Bowling had claimed memory loss regarding the crime during a mental health evaluation while in jail, and it notes the burden of proof regarding extreme emotional disturbance in current Kentucky law.
Bowling contends that the government bore the burden of proving the absence of extreme emotional disturbance (EED) at trial, referencing the Sixth Circuit case, Gall v. Parker, which ruled that the Kentucky Supreme Court improperly placed this burden on the defendant. However, Bowling's case differs as the Kentucky Supreme Court explicitly shifted the burden to the defendant in 1985 through the Wellman decision, which overruled prior case law. Bowling argues that Wellman’s retroactive application violated due process and separation-of-powers principles, but this claim was previously deemed unpersuasive. Furthermore, Bowling claims that the denial of an EED instruction during the guilt phase constituted a violation of state law. Federal habeas corpus relief typically requires a demonstration of federal constitutional error rather than mere state law violations. The court found that any alleged state law errors did not rise to a level of denying fundamental fairness. Additionally, Bowling asserts that the trial court's refusal to provide specific instructions on mitigating factors in the penalty phase violated state law, yet the court generally does not address state law issues in federal habeas proceedings. Ultimately, the court concluded that the trial court’s decision was not fundamentally unfair enough to infringe upon Bowling's due process rights.
The Kentucky Supreme Court previously rejected all claims of ineffective assistance of counsel raised by Bowling in Bowling II. Bowling has introduced a new claim regarding his counsel's failure to properly cross-examine Detective Henderson, which was not presented in earlier proceedings and is thus considered defaulted. The court finds this claim lacks merit, as Bowling fails to demonstrate how better cross-examination would have affected the trial outcome, given that the defense consistently maintained there was no clear motive. Additionally, Bowling's Brady claim, concerning the prosecution's alleged failure to disclose evidence related to Donald Adams, is also defaulted because it was not raised in prior courts. Even if it were not defaulted, the court finds no merit in the Brady claim, as Bowling has not shown that any withheld evidence was material to the case. Finally, Bowling's argument regarding the Kentucky courts' handling of his request for a post-conviction evidentiary hearing is also rejected.
Federal habeas proceedings typically do not involve the review of state law violations unless there is an independent constitutional error, as established in Estelle v. McGuire. Bowling's claim regarding a state-law error affecting his due process rights has been deemed not fundamentally unfair. Additionally, claims for an evidentiary hearing related to this alleged error have been rejected. Although a violation of state law occurred when the Kentucky Supreme Court indicated that the term “recommend” could mislead the jury, this was not found to be a significant due process violation. The prosecutor's use of “recommend” was deemed an isolated incident, not intended to prejudice the jury, which was informed throughout the closing argument of its responsibility for sentencing, culminating in a direct request for the death penalty. Consequently, the court concluded that the state law violation did not infringe upon Bowling's due process rights.
