Hodge v. Jordan

95 F.4th 393

Benny Lee HODGE, Petitioner - Appellant, v. Scott JORDAN, Warden, Respondent - Appellee.

No. 17-6032

United States Court of Appeals, Sixth Circuit

Argued: October 20, 2020

Decided and Filed: February 22, 2024

On Petition for Panel Rehearing

United States District Court for the Eastern District of Kentucky at Pikeville. No. 7:13-cv-00005—David L. Bunning, District Judge.

ARGUED: Dennis J. Burke, DEPARTMENT OF PUBLIC ADVOCACY, LaGrange, Kentucky, for Appellant. Brett R. Nolan, OFFICE OF THE ATTORNEY GENERAL OF KENTUCKY, Frankfort, Kentucky, for Appellee. ON APPELLANT BRIEF AND ON PETITION FOR PANEL REHEARING: Dennis J. Burke, DEPARTMENT OF PUBLIC ADVOCACY, LaGrange, Kentucky, Dana C. Hansen

Chavis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. ON APPELLEE BRIEF: Joseph A. Newberg, II, OFFICE OF THE ATTORNEY GENERAL OF KENTUCKY, Frankfort, Kentucky, for Appellee. ON RESPONSE TO PETITION FOR PANEL REHEARING: Matthew F. Kuhn, Brett R. Nolan, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.

Before: SILER, CLAY, and WHITE, Circuit Judges.^*

WHITE, J., delivered the superseding opinion of the court in which CLAY, J., joined. SILER, J. (pp. 403-04), delivered a separate dissenting opinion.

SUPERSEDING OPINION

HELENE N. WHITE, Circuit Judge.

Benny Lee Hodge, a Kentucky death-row inmate, appeals the denial of his petition for habeas corpus. Hodge's petition primarily concerns the ineffective assistance of his trial counsel at the sentencing phase. Because the Kentucky Supreme Court applied a standard of prejudice that is contrary to established Supreme Court precedent, counsel's failure to present mitigation evidence was constitutionally deficient, and there is a reasonable probability that counsel's failure affected the outcome of Hodge's sentencing, we reverse the district court and remand with instructions to grant conditional habeas relief as to the penalty phase of Hodge's trial. Hodge also raises jury-tampering and jury-bias claims, which we conclude are without merit.¹

I.

In August 1985, Hodge and two codefendants posed as FBI agents to enter the home of Dr. Roscoe Acker. Hodge v. Commonwealth, No. 2009-SC-000791-MR, 2011 WL 3805960, at *4 (Ky. Aug. 25, 2011). Once inside, they covered the heads of Dr. Acker and his college-aged daughter, Tammy, and forced Dr. Acker to open his safe. Id. A co-defendant then strangled Dr. Acker with an electrical cord until he lost consciousness, and Hodge stabbed Tammy at least ten times. Id. Hodge and his co-defendants stole about two million dollars from the safe. Id. at *1.

Hodge was charged with and convicted of murder, robbery, and burglary. During the sentencing phase of Hodge's trial, his counsel presented only a two-sentence stipulation, which was read to the jury: "Benny Lee Hodge has a loving and supportive family-a wife and three children. He has a public job work record and he lives and resides permanently in Tennessee." Id. at *2. The jury recommended that Hodge be sentenced to death and the trial court imposed a death sentence the same day. Hodge and his codefendant filed a combined direct appeal, which the Supreme Court of Kentucky denied. See Epperson v. Commonwealth, 809 S.W.2d 835 (Ky. 1990).

Over the last three decades, Hodge has pursued several postconviction challenges. In 1992, Hodge filed an unsuccessful state-court motion to vacate his conviction, alleging, among other things, ineffective assistance of counsel (IAC) and jury tampering. Hodge, 2011 WL 3805960, at *1. On appeal, the Kentucky Supreme Court ordered the trial court to hold an evidentiary hearing. Hodge v. Commonwealth, 68 S.W.3d 338, 345 (Ky. 2001). The trial court did so and denied relief. The Kentucky Supreme Court affirmed. Hodge, 2011 WL 3805960. Hodge petitioned the Supreme Court of the United States for a writ of certiorari, which was denied. Hodge v. Kentucky, 568 U.S. 1056, 133 S.Ct. 506, 184 L.Ed.2d 514 (2012) (mem.). In 2013, Hodge sought a writ of habeas corpus in the United States District Court for the Eastern District of Tennessee. Hodge v. White, No. CV 13-5-DLB-EBA, 2016 WL 4425094 (E.D. Ky. Aug. 17, 2016). The district court denied Hodge's petition, and this appeal followed.

II.

As described by the Kentucky Supreme Court, postconviction counsel provided considerable mitigation evidence that trial counsel failed to present to the jury at the sentencing phase:

[W]e turn to a review of the mitigation evidence that was available at the time of Hodge's trial. His mitigation case would have been based on his childhood, which was marked by extreme poverty, sustained physical violence, and constant emotional abuse. The trial court's characterization of Hodge's childhood as "difficult" is not inaccurate, but certainly inadequate.

The evidence established that Hodge's mother, Kate, was married to six different men, all of whom were substance abusers and some of whom were physically abusive to Kate. She married Billy Joe when Hodge was eight years old. The majority of Hodge's evidence concerned the extreme violence he suffered at the hands of his stepfather. Again, the trial court's description of Billy Joe as "particularly abusive" is insufficient.

Billy Joe was described by at least four witnesses as a "monster." His rage was explosive and violent, often triggered by Kate's shows of affection towards her children. At other times, he was incited for no apparent reason and the household lived in constant fear as a result. He would regularly rape Kate, threaten her with a gun, and beat her. On one occasion, Billy Joe assaulted Hodge's mother so violently that she suffered a miscarriage. Hodge's sisters testified that, more than once, they thought Kate had been beaten to death.

Hodge's mother and sisters agreed that Billy Joe was more violent and abusive towards [Hodge] than any other person in the house. This is perhaps because Hodge, being the only male child in the home, often tried to defend his mother and sisters from physical attacks. He was regularly beaten with a belt and metal buckle, which left bruises and welts on his body that were observed by family members and neighbors alike. At other times, he was kicked, thrown against walls, and punched. Hodge's half-sister specifically recalled an occasion when Billy Joe rubbed Hodge's face in his own feces. His sisters testified that Billy Joe made [Hodge] watch while he brutally killed [Hodge's] dog. Because his mother, who was evidently paralyzed by fear and substance abuse, refused to protect Hodge, he often ran away from home.

School records indicate that Hodge was of normal intelligence and received average grades through elementary school. After Billy Joe entered the home, his grades declined, he became withdrawn, and he was often truant. He began stealing at the age of twelve and was sentenced to a juvenile detention facility when he was fifteen.

There was testimony that, at the Tennessee residential facility, Hodge was subjected to regular beatings. He escaped from the facility twice and once refused to return after a furlough. After finally being released at the age of sixteen, Hodge assaulted his stepfather, which resulted in his return to the juvenile facility until he was eighteen years old.

At the age of twenty, Hodge pled guilty to his first felonies: burglary and grand larceny. He escaped from custody four days later. Following his capture and eventual parole, he was convicted of a separate armed robbery. Again, he escaped and was recaptured. After serving nearly eight years in prison for that felony, Hodge was again paroled. He was thirty-four years old at the time he killed Tammy Acker. He had been married three times and had fathered three children.

At the evidentiary hearing, Hodge presented the expert opinions of two psychologists, both of whom had assessed him in 2009. Both agreed that the violence in Hodge's childhood home was ruinous to his development and compounded by the physical abuse occurring at the Tennessee residential facility. One of the psychologists diagnosed Hodge with post traumatic stress disorder (PTSD) and opined that it was present at the time of Hodge's crimes and trial. This expert further testified that PTSD can render a person violent, hypervigilant, aggressive, and erratic. Both psychologists found it particularly interesting to note that Hodge did not inflict any abuse on his own children and was described by all as a loving father.

Hodge, 2011 WL 3805960, at *3-4. Hodge's history of being abused, as well as his mental-illness diagnosis, went unheard by the jury, who instead heard only the two-sentence stipulation provided by counsel.

III.

To prevail on a habeas claim premised on IAC, Hodge must satisfy the two-part test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He must show both "that [his] lawyers performed well below the norm of competence in the profession and that this failing prejudiced [his] case." Caudill v. Conover, 881 F.3d 454, 460 (6th Cir. 2018) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). And because the Kentucky Supreme Court has already rejected Hodge's IAC claim, the Antiterrorism and Effective Death Penalty Act (AEDPA) also requires that he demonstrate that the Kentucky Supreme Court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2554(d)(1). In sum, we must give double deference to the state court's determination. See Harrington v. Richter, 562 U.S. 86, 105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). A district court's denial of a habeas petition is reviewed de novo. Mitchell v. MacLaren, 933 F.3d 526, 531 (6th Cir. 2019). "The district court's findings of fact are reviewed for clear error, and its legal conclusions on mixed questions of law and fact are reviewed de novo." Id.

A.

Counsel had a duty to reasonably investigate and...