Hodge v. Jordan

12 F.4th 640

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: September 10, 2021

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 BRIEF: Dennis J. Burke, DEPARTMENT OF PUBLIC ADVOCACY, LaGrange, Kentucky, Dana C. Hansen Chavis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Joseph A. Newberg, II, OFFICE OF THE ATTORNEY GENERAL OF KENTUCKY, Frankfort, Kentucky, for Appellee.

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

SILER, J., delivered the opinion of the court in which COOK, J., joined. WHITE, J. (pp. 646–47), delivered a separate opinion concurring in part and dissenting in part.

SILER, Circuit Judge.

In 1986, a Kentucky jury convicted Benny Hodge for the murder of Tammy Acker, the attempted murder of Dr. Roscoe Acker, first-degree robbery, and first-degree burglary. After finding Hodge and codefendant Roger Dale Epperson guilty, the jury recommended death for both. Hodge filed this habeas petition, claiming his counsel provided ineffective assistance of counsel (IAC) at the sentencing phase. Bound by deference under the Antiterrorism and Effective Death Penalty Act (AEDPA), we reject that claim. Hodge also alleges he was denied a fair trial because of jury tampering and the close relationship between the prosecutor and jury foreman. Those claims are also without merit.¹ We affirm the district court and deny the writ.

I

Hodge and Donald Bartley posed as FBI agents to enter the home of Dr. Acker, an Eastern Kentucky doctor. Hodge v. Commonwealth , No. 2009-SC-000791-MR, 2011 WL 3805960, at *4 (Ky. Aug. 25, 2011) (unpublished). Once inside, they tied up the elderly doctor and his daughter, Tammy. Id. The two men, joined by Epperson, ransacked the house, and forced Dr. Acker to open the safe they found. Epperson v. Commonwealth , 809 S.W.2d 835, 838 (Ky. 1990).

After collecting nearly $2 million in cash, Epperson and Bartley strangled Dr. Acker until he lost consciousness. Hodge , 2011 WL 3805960, at *4. Hodge brutally stabbed Tammy at least ten times with a large kitchen knife, killing her. Id. Together the men fled to Florida. Id . at *5. Until they were caught, "they brazenly spent the stolen money on a lavish lifestyle and luxury goods, including a Corvette." Id.

After his initial conviction, Hodge's case has gone up and down the Kentucky judicial system three times. The Kentucky Supreme Court previously granted post-conviction relief and ordered the trial court to consider Hodge's jury tampering and ineffective assistance of counsel claims. But the trial court again denied relief. The Kentucky Supreme Court affirmed. Id.

Hodge then sought habeas relief in federal court on numerous grounds. The district court rejected each of the claims.

II

Hodge alleges that his lawyer, Dale Mitchell, provided ineffective assistance at the penalty phase by neither investigating nor presenting mitigating evidence. He must, therefore, show "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 v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). But that is not all. The Kentucky Supreme Court already rejected his ineffective assistance claim. So, AEDPA also requires that Hodge demonstrate that the state court's ruling was unreasonable. 28 U.S.C. § 2254(d). Said simply, 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).

Begin with Mitchell's performance. Hodge's mitigation case at trial consisted of a two-sentence stipulation: he had "a loving supportive family—a wife and three children" and he had "a public job work record."² Hodge , 2011 WL 3805960, at *2. The jury heard nothing else. A lawyer, however, must investigate and reasonably present mitigating factors. See Wiggins v. Smith , 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citing Strickland , 466 U.S. at 691, 104 S.Ct. 2052 ). Because Mitchell did not, the Warden agrees that Mitchell's performance fell below the constitutional bar.

Nonetheless, Hodge must also show he was prejudiced by Mitchell's ineffective representation. The Kentucky Supreme Court has held he cannot. Therefore, Hodge must clear two hurdles. First, he must demonstrate "a reasonable probability that at least one juror would have struck a different balance." Id. at 537, 123 S.Ct. 2527. That is, the chance one juror would have voted against death "must be substantial, not just conceivable." Richter , 562 U.S. at 112, 131 S.Ct. 770. To do so, Hodge must present "evidence that ‘differ[s] in a substantial way—in strength and subject matter—from the evidence actually presented at sentencing.’ " Caudill , 881 F.3d at 464 (quoting Hill v. Mitchell , 400 F.3d 308, 319 (6th Cir. 2005) ). Second, Hodge must show "that the state court's decision is so obviously wrong that its error lies ‘beyond any possibility for fairminded disagreement.’ " Shinn v. Kayer , ––– U.S. ––––, 141 S. Ct. 517, 523, 208 L.Ed.2d 353 (2020) (quoting Richter , 562 U.S. at 103, 131 S.Ct. 770 ) (per curiam). And because he cannot, his claim fails.

Consider first the available mitigating evidence. Hidden behind Hodge's sentencing phase stipulation was a childhood marred by the "most severe and unimaginable level of physical and mental abuse." Hodge , 2011 WL 3805960, at *5.

But an unhappy childhood only got worse when his mother, Kate, married Billy Joe Hodge. Billy Joe was a "monster," prone to extreme violence. Id . at *3. Sometimes he would be triggered by Kate's "shows of affection towards her children." Id. Frequently, however, he would turn to violence for no reason at all. Billy Joe "would regularly rape Kate, threaten her with a gun, and beat her." Id . On one occasion his abuse caused her to have a miscarriage.

Hodge, on the other hand, was repeatedly beaten with a belt and metal buckle; kicked; thrown against the walls; and punched. Id. Billy Joe even "rubbed Hodge's face in his own feces." Id. Still worse, Billy Joe brutally killed Hodge's dog in front of him. Id . Nobody, including his own mother, ever did anything to end the cruelty. Id .

Billy Joe's abuse appears to have changed Hodge's life. Before Billy Joe entered the home, Hodge displayed signs of normal intelligence, rarely missed school, and received decent grades. Afterwards, "his grades declined, he became withdrawn, and he was often truant." Id . at *4. Hodge began to steal. So, by the age of fifteen he was sentenced to a juvenile detention facility. Far from an oasis, the situation at the facility was not much better than his home. Inside, he was subjected to regular and brutal beatings. Id.

Psychologists now believe that the violence he experienced both at home and in the facility was "ruinous to his development." Id . And the experience left him scarred with post-traumatic stress disorder (PTSD), which "can render a person violent, hypervigilant, aggressive, and erratic." Id . The psychologists also believe Hodge had PTSD at the time he killed Tammy and during the trial for that crime. Id.

The court, however, must "keep in mind the State's evidence on the other side of the scale." Caudill , 881 F.3d at 464 (citing Wong v. Belmontes , 558 U.S. 15, 27, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009) (per curiam)). And it was substantial. Hodge stabbed a young woman at least ten times with such force that the knife went all the way through her chest, and he coolly reported the stabbing to Epperson. He then fled to Florida where he allegedly fornicated on top of Dr. Acker's money. Id. at *5. Although it went unheard by the jury, Hodge also had a lengthy criminal history (burglary, grand larceny, armed robbery, and escape). Those convictions must go on the ledger against overturning his death sentence. See Shinn , 141 S. Ct. at 525.

After reweighing the mitigating evidence against the aggravating evidence, the Kentucky Supreme Court found no prejudice. It reasoned that "the particularly depraved and brutal nature of [the] crimes" meant a sentencing jury would not have spared Hodge's life. Hodge , 2011 WL 3805960, at *5. To that point, it found that the mitigation evidence "offers virtually no rationale for the premeditated, cold-blooded murder and attempted murder of two innocent victims who were complete strangers to Hodge." Id . ; see also Canales v. Davis , 966 F.3d 409, 415 n.2 (5th Cir. 2020) (finding childhood mitigation evidence does little to explain participation in a cold-blooded murder). In other words, the Kentucky Supreme Court conducted the "probing inquiry" required by the law. See Sears v. Upton , 561 U.S. 945, 956, 130 S.Ct. 3259, 177 L.Ed.2d 1025 (2010) (per curiam). So, although we may have reached a different conclusion, we cannot say the Kentucky Supreme Court's ruling was obviously wrong. See Shinn , 141 S. Ct. at 523.

No Supreme Court precedent dictates a different conclusion. From Andrus to Williams , each of the cases has meaningful differences from this case. See Andrus v. Texas , ––– U.S. ––––, 140 S. Ct. 1875, 207 L.Ed.2d 335 (2020) ; Sears v. Upton , 561 U.S. 945, 130 S.Ct. 3259, 177 L.Ed.2d 1025 (2010) ; Porter v. McCollum , 558 U.S. 30, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (per curiam); Rompilla v. Beard , 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) ; Wiggins , 539 U.S. at 514, 123 S.Ct. 2527 ; Williams v. Taylor , 529 U.S. 362, 395–98, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Perhaps most importantly, only Porter required the court to give deference to a no-prejudice determination. Porter , 558 U.S. at 42, 130 S.Ct. 447. And there, the...