United States Court of Appeals, Sixth Circuit, Gregory Wilson v. Phil Parker, Warden, 2007 September 11

Online content

Page 1
515 F.3d 682
(Cite as: 515 F.3d 682)
United States Court of Appeals,
Sixth Circuit.
Gregory WILSON, Petitioner-Appellant,
v.
Phil PARKER, Warden, Respondent-Appellee.
No. 05-5191.
Argued: Sept. 11, 2007.
Decided and Filed: Jan. 29, 2008.
As Amended on Denial of Rehearing and Rehearing
En Banc Feb. 25, 2009.
Background: Following affirmance of state court
conviction for murder, rape, robbery, and conspiracy,
836 S.W.2d 872, petition for writ of habeas corpus
was filed. The United States District Court for the
Eastern District of Kentucky, David L. Bunning, J.,
denied the petition and petitioner appealed.
Holdings: On denial of rehearing, the Court of
Appeals, Boggs, Chief Circuit Judge, held that:
(1) state court's determination that murder defendant's
waiver of right to counsel was knowing and
intelligent was not contrary to or an unreasonable
application of federal law;
(2) standby counsel was not ineffective;
(3) trial judge was not required to recuse himself;
(4) prosecution's failure to disclose correspondence
between codefendant and another trial court judge did
not constitute Brady violation;
(5) denial of severance was not contrary to or an
unreasonable application of federal law;
(6) admission of expert witness's hair-matching
testimony was not contrary to or an unreasonable
application of federal law; and
(7) appellate counsel was not ineffective.

Affirmed.
West Headnotes
[1] Habeas Corpus 197
452
197 Habeas Corpus
197II Grounds for Relief; Illegality of Restraint
197II(A) Ground and Nature of Restraint
197k450 Federal Review of State or
Territorial Cases
197k452 k. Federal or Constitutional
Questions. Most Cited Cases
Under the “contrary to” clause of the habeas statute, a
federal court may grant habeas relief if the state court
arrives at a conclusion opposite to that reached by the
Supreme Court on a question of law or if the state
court decides a case differently than the Supreme
Court has decided on a set of materially
indistinguishable facts. 28 U.S.C.A. § 2254(d)(1).
[2] Habeas Corpus 197
452
197 Habeas Corpus
197II Grounds for Relief; Illegality of Restraint
197II(A) Ground and Nature of Restraint
197k450 Federal Review of State or
Territorial Cases
197k452 k. Federal or Constitutional
Questions. Most Cited Cases
Under the “contrary to” clause of the habeas statute,
clearly established Federal law, as determined by the
Supreme Court of the United States, refers to the
holdings, as opposed to the dicta, of the Supreme
Court's decisions as of the time of the relevant state-
court decision. 28 U.S.C.A. § 2254(d)(1).
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[3] Habeas Corpus 197
450.1
197 Habeas Corpus
197II Grounds for Relief; Illegality of Restraint
197II(A) Ground and Nature of Restraint
197k450 Federal Review of State or
Territorial Cases
197k450.1 k. In General. Most Cited
Cases
Under the “unreasonable application” clause of the
habeas statute, a federal court may grant habeas relief
if the state court identifies the correct governing legal
principle from the Supreme Court's decisions but
unreasonably applies that principle to the facts. 28
U.S.C.A. § 2254(d)(2).
[4] Habeas Corpus 197
450.1
197 Habeas Corpus
197II Grounds for Relief; Illegality of Restraint
197II(A) Ground and Nature of Restraint
197k450 Federal Review of State or
Territorial Cases
197k450.1 k. In General. Most Cited
Cases
Habeas relief is available under the “unreasonable
application” clause of the habeas statute if the state
court decision either unreasonably extends or
unreasonably refuses to extend a legal principle from
the Supreme Court precedent to a new context. 28
U.S.C.A. § 2254(d)(2).
[5] Habeas Corpus 197
450.1
197 Habeas Corpus
197II Grounds for Relief; Illegality of Restraint
197II(A) Ground and Nature of Restraint
197k450 Federal Review of State or
Territorial Cases
197k450.1 k. In General. Most Cited
Cases
The proper inquiry for the “unreasonable application”
analysis of a habeas claim is whether the state court
decision was objectively unreasonable and not simply
erroneous or incorrect. 28 U.S.C.A. § 2254(d)(2).
[6] Habeas Corpus 197
842
197 Habeas Corpus
197III Jurisdiction, Proceedings, and Relief
197III(D) Review
197III(D)2 Scope and Standards of Review
197k842 k. Review De Novo. Most
Cited Cases
The Court of Appeals reviews de novo a district
court's legal conclusions denying habeas relief.
[7] Criminal Law 110
1751
110 Criminal Law
110XXXI Counsel
110XXXI(B) Right of Defendant to Counsel
110XXXI(B)3 Waiver of Right to Counsel
110k1751 k. Capacity and Requisites in
General. Most Cited Cases
(Formerly 110k641.4(2))
A criminal defendant has the right to represent
himself without counsel, provided that he knowingly
and intelligently foregoes the benefits of having
counsel assist him. U.S.C.A. Const.Amend. 6.
[8] Criminal Law 110
1774(2)
110 Criminal Law
110XXXI Counsel
110XXXI(B) Right of Defendant to Counsel
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110XXXI(B)5 Procedure and Affirmative
Duties by Court in Protection of Right to Counsel and
Right to Self-Representation
110k1772 Duty of Inquiry, Warning,
and Advice
110k1774 Particular Cases
110k1774(2) k. Waiver of Right
to Counsel. Most Cited Cases
(Formerly 110k641.7(1))
A defendant should be made aware of the dangers
and disadvantages of self-representation, so that the
record will establish that he knows what he is doing
and his choice is made with eyes open. U.S.C.A.
Const.Amend. 6.
[9] Criminal Law 110
1751
110 Criminal Law
110XXXI Counsel
110XXXI(B) Right of Defendant to Counsel
110XXXI(B)3 Waiver of Right to Counsel
110k1751 k. Capacity and Requisites in
General. Most Cited Cases
(Formerly 110k641.4(2))
To be valid a waiver of right to counsel must be made
with an apprehension of the nature of the charges, the
statutory offenses included within them, the range of
allowable punishments thereunder, possible defenses
to the charges and circumstances in mitigation
thereof, and all other facts essential to a broad
understanding of the whole matter. U.S.C.A.
Const.Amend. 6.
[10] Criminal Law 110
1751
110 Criminal Law
110XXXI Counsel
110XXXI(B) Right of Defendant to Counsel
110XXXI(B)3 Waiver of Right to Counsel
110k1751 k. Capacity and Requisites in
General. Most Cited Cases
(Formerly 110k641.4(2))
For a valid waiver of counsel, the record must show,
or there must be an allegation and evidence which
show, that an accused was offered counsel but
intelligently and understandingly rejected the offer.
U.S.C.A. Const.Amend. 6.
[11] Habeas Corpus 197
484
197 Habeas Corpus
197II Grounds for Relief; Illegality of Restraint
197II(B) Particular Defects and Authority for
Detention in General
197k482 Counsel
197k484 k. Inquiry, Advice, Warnings,
and Assistance; Waiver. Most Cited Cases
A trial court's outright failure to explain the risks and
dangers in proceeding pro se or a failure to
adequately examine the waiver of counsel will justify
issuing a writ of habeas corpus.
U.S.C.A.
Const.Amend. 6.
[12] Habeas Corpus 197
484
197 Habeas Corpus
197II Grounds for Relief; Illegality of Restraint
197II(B) Particular Defects and Authority for
Detention in General
197k482 Counsel
197k484 k. Inquiry, Advice, Warnings,
and Assistance; Waiver. Most Cited Cases
State court's determination that murder defendant's
waiver of right to counsel was knowing and
intelligent was not contrary to or an unreasonable
application of federal law, as required for habeas
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relief; trial judge had repeated colloquies with
defendant and adequately probed defendant's
understanding of waiver. U.S.C.A. Const.Amend. 6.
[13] Habeas Corpus 197
485
197 Habeas Corpus
197II Grounds for Relief; Illegality of Restraint
197II(B) Particular Defects and Authority for
Detention in General
197k482 Counsel
197k485 k. Choice of Counsel; Change;
“Standby.”. Most Cited Cases
Habeas relief was not warranted for petitioner
convicted of capital murder, on basis that Sixth
Amendment required state trial court to conduct
inquiry into appointed counsel's alleged
incompetence when indigent petitioner requested that
appointed counsel be discharged and new counsel
appointed; no Supreme Court case mandated such
inquiry, so the trial court's failure to so inquire did not
violate clearly established federal law. U.S.C.A.
Const.Amend. 6.
[14] Criminal Law 110
1822
110 Criminal Law
110XXXI Counsel
110XXXI(B) Right of Defendant to Counsel
110XXXI(B)9 Choice of Counsel
110k1822 k. Choice of Appointed
Counsel. Most Cited Cases
(Formerly 110k641.10(1))
Indigent defendants do not have the right to counsel
of their choice. U.S.C.A. Const.Amend. 6.
[15] Habeas Corpus 197
486(2)
197 Habeas Corpus
197II Grounds for Relief; Illegality of Restraint
197II(B) Particular Defects and Authority for
Detention in General
197k482 Counsel
197k486 Adequacy and Effectiveness
of Counsel
197k486(2) k. Particular Issues and
Problems. Most Cited Cases
State court's determination that capital murder
defendant's standby counsel was not ineffective was
not contrary to or an unreasonable application of
federal law, as required for habeas relief; to the extent
that standby counsel failed to act during trial,
defendant merely suffered consequences of his
decision to proceed pro se. U.S.C.A. Const.Amend.
6.
[16] Criminal Law 110
1750
110 Criminal Law
110XXXI Counsel
110XXXI(B) Right of Defendant to Counsel
110XXXI(B)3 Waiver of Right to Counsel
110k1750 k. In General; Right to
Appear Pro Se. Most Cited Cases
(Formerly 110k641.4(1))
By exercising his constitutional right to present his
own defense, a defendant necessarily waives his
constitutional right to be represented by counsel.
U.S.C.A. Const.Amend. 6.
[17] Criminal Law 110
1975
110 Criminal Law
110XXXI Counsel
110XXXI(C) Adequacy of Representation
110XXXI(C)2 Particular Cases and Issues
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110k1975 k. Counsel of Defendant's
Choice or Defendant Pro Se. Most Cited Cases
(Formerly 110k641.13(8))
A defendant cannot waive his right to counsel and
then complain about the quality of his own defense.
U.S.C.A. Const.Amend. 6.
[18] Criminal Law 110
1787
110 Criminal Law
110XXXI Counsel
110XXXI(B) Right of Defendant to Counsel
110XXXI(B)6 Conflict of Interest
110k1782 Particular Cases or Situations
110k1787 k. Previous or Concurrent
Representation of Witness or Other Party. Most Cited
Cases
(Formerly 110k641.5(.5))
Criminal Law 110
1975
110 Criminal Law
110XXXI Counsel
110XXXI(C) Adequacy of Representation
110XXXI(C)2 Particular Cases and Issues
110k1975 k. Counsel of Defendant's
Choice or Defendant Pro Se. Most Cited Cases
(Formerly 110k641.10(3))
Even assuming that defendant's standby counsel had
previously been prosecution witness's attorney on
unrelated theft charges, defendant was not prejudiced
by any alleged conflict of interest, as element of
claim of ineffective assistance; defendant had elected
to proceed pro se and forbade standby counsel from
cross-examining witness. U.S.C.A. Const.Amend. 6.
[19] Criminal Law 110
1960
110 Criminal Law
110XXXI Counsel
110XXXI(C) Adequacy of Representation
110XXXI(C)2 Particular Cases and Issues
110k1958 Death Penalty

110k1960
k. Adequacy of
Investigation of Mitigating Circumstances. Most
Cited Cases
(Formerly 110k641.13(6))
Defense counsel's failure to begin mitigation
investigation before capital murder defendant's
waiver of right to counsel did not prejudice
defendant, as element of claim of ineffective
assistance; defendant waived his right to counsel of
first day of trial and thereafter controlled his defense,
including deciding whether he or counsel would
cross-examine witnesses and make opening or
closing statements. U.S.C.A. Const.Amend. 6.
[20] Criminal Law 110
1881
110 Criminal Law
110XXXI Counsel
110XXXI(C) Adequacy of Representation
110XXXI(C)1 In General
110k1879 Standard of Effective
Assistance in General

110k1881
k. Deficient
Representation and Prejudice in General. Most Cited
Cases
(Formerly 110k641.13(1))
A successful ineffective assistance of counsel claim
must

demonstrate

both

the

objective
unreasonableness of defense counsel's conduct and its
prejudicial effect. U.S.C.A. Const.Amend. 6.
[21] Criminal Law 110
1882
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515 F.3d 682
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110 Criminal Law
110XXXI Counsel
110XXXI(C) Adequacy of Representation
110XXXI(C)1 In General
110k1879 Standard of Effective
Assistance in General

110k1882
k. Deficient
Representation in General. Most Cited Cases
(Formerly 110k641.13(1))
In a claim of ineffective assistance, reviewing courts
must judge the reasonableness of counsel's
challenged conduct on the facts of the particular case,
viewed as of the time of counsel's conduct. U.S.C.A.
Const.Amend. 6.
[22] Judges 227
49(2)
227 Judges
227IV Disqualification to Act
227k49 Bias and Prejudice
227k49(2) k. Statements and Expressions
of Opinion by Judge. Most Cited Cases
To show improper prejudice, a judge's comments
must display a deep-seated favoritism or antagonism
that would make fair judgment impossible.
[23] Judges 227
49(1)
227 Judges
227IV Disqualification to Act
227k49 Bias and Prejudice
227k49(1) k. In General. Most Cited Cases
Trial judge in defendant's capital murder prosecution
was not required to recuse himself, even though
codefendant had a sexual relationship with another
state trial court judge; trial judge made no comment
or action that demonstrated degree of antagonism
necessary for judicial bias, and nothing indicated that
trial judge was influenced by or even knew of
relationship between codefendant and different judge.
[24] Criminal Law 110
1999
110 Criminal Law
110XXXI Counsel
110XXXI(D) Duties and Obligations of
Prosecuting Attorneys
110XXXI(D)2 Disclosure of Information

110k1993
Particular Types of
Information Subject to Disclosure
110k1999 k. Impeaching Evidence.
Most Cited Cases
(Formerly 110k700(4))
Prosecution's failure to disclose to defendant
correspondence between codefendant and another
trial court judge did not constitute Brady violation in
capital murder prosecution, since there was no
reasonable probability that had evidence been
disclosed outcome would have been different;
codefendant was not only witness against defendant,
much of prosecution's case derived from defendant's
confession to cellmate and circumstantial evidence,
codefendant admitted on direct examination that she
had been a prostitute, and there was no evidence that
judge intervened on codefendant's behalf.
[25] Criminal Law 110
1999
110 Criminal Law
110XXXI Counsel
110XXXI(D) Duties and Obligations of
Prosecuting Attorneys
110XXXI(D)2 Disclosure of Information

110k1993
Particular Types of
Information Subject to Disclosure
110k1999 k. Impeaching Evidence.
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Most Cited Cases
(Formerly 110k700(4))
Brady requires that the prosecution disclose evidence
that may impeach the credibility of a witness.
[26] Criminal Law 110
1992
110 Criminal Law
110XXXI Counsel
110XXXI(D) Duties and Obligations of
Prosecuting Attorneys
110XXXI(D)2 Disclosure of Information
110k1992 k. Materiality and Probable
Effect of Information in General. Most Cited Cases
(Formerly 110k700(2.1))
Brady evidence must be turned over to the defense if
it is both favorable to the accused and material to
guilt or punishment.
[27] Criminal Law 110
1992
110 Criminal Law
110XXXI Counsel
110XXXI(D) Duties and Obligations of
Prosecuting Attorneys
110XXXI(D)2 Disclosure of Information
110k1992 k. Materiality and Probable
Effect of Information in General. Most Cited Cases
(Formerly 110k700(2.1))
Brady evidence is material if there is a reasonable
probability that, had the evidence been disclosed to
the defense, the outcome of the case would have been
different.
[28] Witnesses 410
267
410 Witnesses
410III Examination
410III(B) Cross-Examination
410k267 k. Control and Discretion of
Court. Most Cited Cases
Trial courts retain discretion to impose limits on
cross-examination based on concerns about
harassment, prejudice, confusion of issues, or
interrogation that is repetitive or only marginally
relevant.
[29] Criminal Law 110
1992
110 Criminal Law
110XXXI Counsel
110XXXI(D) Duties and Obligations of
Prosecuting Attorneys
110XXXI(D)2 Disclosure of Information
110k1992 k. Materiality and Probable
Effect of Information in General. Most Cited Cases
(Formerly 110k700(2.1))
The impact of undisclosed evidence on a defendant's
trial preparations is irrelevant to materiality under
Brady; only the effect on the trial's outcome matters.
[30] Habeas Corpus 197
745.1
197 Habeas Corpus
197III Jurisdiction, Proceedings, and Relief
197III(C) Proceedings
197III(C)3 Hearing
197k745 Criminal Cases
197k745.1 k. In General. Most Cited
Cases
Habeas petitioner was not entitled to evidentiary
hearing regarding relationship between codefendant
and another trial court judge, even though
relationship came to light well after petitioner's state
post-conviction proceedings had concluded;
petitioner did not allege sufficient grounds for
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release. 28 U.S.C.A. § 2254(e)(2).
[31] Habeas Corpus 197
742
197 Habeas Corpus
197III Jurisdiction, Proceedings, and Relief
197III(C) Proceedings
197III(C)3 Hearing
197k742 k. Discretion and Necessity in
General. Most Cited Cases
The fact that a petitioner is not disqualified from
receiving an evidentiary hearing, under provision of
habeas statute restricting a petitioner's ability to
obtain a hearing where he has failed to develop the
factual basis of a claim in state court proceedings,
does not entitle the petitioner to such a hearing. 28
U.S.C.A. 2254(e)(2).
[32] Habeas Corpus 197
480
197 Habeas Corpus
197II Grounds for Relief; Illegality of Restraint
197II(B) Particular Defects and Authority for
Detention in General
197k480 k. Discovery and Disclosure.
Most Cited Cases
State court's determination that defendant's request
for information about informant was “clearly
excessive” was not contrary to or an unreasonable
application of federal law under Brady, as required
for habeas relief; prosecutor provided criminal
charged pending against informant, prosecutor's
communications with another office concerning
informant, fact that informant was not federal parole,
informant's disclosures to prosecutor, and fact that
informant provided defendant with money and
cigarettes while they were incarcerated.
[33] Criminal Law 110
1991
110 Criminal Law
110XXXI Counsel
110XXXI(D) Duties and Obligations of
Prosecuting Attorneys
110XXXI(D)2 Disclosure of Information
110k1991 k. Constitutional Obligations
Regarding Disclosure. Most Cited Cases
(Formerly 110k700(2.1))
A Brady violation occurs when the evidence at issue
is favorable to the accused, the evidence was
suppressed by the State, and prejudice resulted.
[34] Habeas Corpus 197
478
197 Habeas Corpus
197II Grounds for Relief; Illegality of Restraint
197II(B) Particular Defects and Authority for
Detention in General
197k478 k. Joinder or Severance of Counts
or Defendants. Most Cited Cases
State court's determination that defendant was not
entitled to severance was not contrary to or an
unreasonable application of federal law, as required
for habeas relief; much of the damaging testimony
introduced at trial would have been admissible even
if defendant had been tried alone.
[35] Criminal Law 110
1166(6)
110 Criminal Law
110XXIV Review
110XXIV(Q) Harmless and Reversible Error
110k1166 Preliminary Proceedings
110k1166(6) k. Joinder or Severance of
Counts or Codefendants. Most Cited Cases
A Kentucky court will not reverse a conviction for
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failure to grant separate trials unless it is clearly
convinced that prejudice occurred and that the
likelihood of prejudice was so clearly demonstrated
to the trial judge as to make his failure to grant
severance an abuse of discretion.
[36] Criminal Law 110
622.7(6)
110 Criminal Law
110XX Trial
110XX(A) Preliminary Proceedings
110k622 Joint or Separate Trials of
Codefendants
110k622.7 Grounds for Severance or
Joinder

110k622.7(6)
k. Antagonistic
Defenses; Hostility. Most Cited Cases
To obtain reversal of a conviction for failure to grant
separate trials, a defendant must show that
antagonism prevented a jury from being able to
separate and treat distinctively evidence that is
relevant to each particular defendant at trial and that
the antagonism between codefendants will mislead or
confuse the jury.
[37] Habeas Corpus 197
490(5)
197 Habeas Corpus
197II Grounds for Relief; Illegality of Restraint
197II(B) Particular Defects and Authority for
Detention in General
197k489 Evidence
197k490 Admissibility
197k490(5) k. Opinion Evidence.
Most Cited Cases
Admission of expert witness's testimony that hairs
found in murder victim's car were similar to samples
of defendant's head and pubic hairs was not contrary
to or an unreasonable application of federal law, as
required for habeas relief; no Supreme Court
precedent showed a constitutional violation based on
use of hair-matching evidence.
[38] Habeas Corpus 197
453
197 Habeas Corpus
197II Grounds for Relief; Illegality of Restraint
197II(A) Ground and Nature of Restraint
197k450 Federal Review of State or
Territorial Cases
197k453 k. Questions of Local Law.
Most Cited Cases
A federal court cannot issue a writ of habeas corpus
on the basis of a perceived error of state law.
[39] Habeas Corpus 197
490(1)
197 Habeas Corpus
197II Grounds for Relief; Illegality of Restraint
197II(B) Particular Defects and Authority for
Detention in General
197k489 Evidence
197k490 Admissibility
197k490(1) k. In General. Most
Cited Cases
A trial judge's decision concerning the admission of
evidence is a state law matter generally not subject to
habeas review.
[40] Criminal Law 110
1881
110 Criminal Law
110XXXI Counsel
110XXXI(C) Adequacy of Representation
110XXXI(C)1 In General
110k1879 Standard of Effective
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Assistance in General

110k1881
k. Deficient
Representation and Prejudice in General. Most Cited
Cases
(Formerly 110k641.13(1))
To prevail on a claim of ineffective assistance of
counsel, a defendant must show both that his
counsel's performance was deficient and that the
deficiency resulted in prejudice.
U.S.C.A.
Const.Amend. 6.
[41] Criminal Law 110
1139
110 Criminal Law
110XXIV Review
110XXIV(L) Scope of Review in General
110XXIV(L)13 Review De Novo
110k1139 k. In General. Most Cited
Cases
The performance and prejudice components of an
ineffective assistance of counsel claim present mixed
questions of law and fact and are reviewed de novo.
U.S.C.A. Const.Amend. 6.
[42] Criminal Law 110
1969
110 Criminal Law
110XXXI Counsel
110XXXI(C) Adequacy of Representation
110XXXI(C)2 Particular Cases and Issues
110k1966 Appeal
110k1969 k. Raising Issues on
Appeal; Briefs. Most Cited Cases
(Formerly 110k641.13(7))
Counsel's failure to raise an issue on appeal could
only be ineffective assistance if there is a reasonable
probability that inclusion of the issue would have
changed the result of the appeal. U.S.C.A.
Const.Amend. 6.
[43] Criminal Law 110
1969
110 Criminal Law
110XXXI Counsel
110XXXI(C) Adequacy of Representation
110XXXI(C)2 Particular Cases and Issues
110k1966 Appeal
110k1969 k. Raising Issues on
Appeal; Briefs. Most Cited Cases
(Formerly 110k641.13(7))
If there is a reasonable probability that the defendant
would have prevailed on appeal had a claim been
raised, the Court of Appeals can then consider
whether the claim's merit was so compelling that
appellate counsel's failure to raise it amounted to
ineffective assistance of appellate counsel. U.S.C.A.
Const.Amend. 6.
[44] Habeas Corpus 197
486(1)
197 Habeas Corpus
197II Grounds for Relief; Illegality of Restraint
197II(B) Particular Defects and Authority for
Detention in General
197k482 Counsel
197k486 Adequacy and Effectiveness
of Counsel
197k486(1) k. In General. Most
Cited Cases
Any claims regarding deficient trial counsel
performance were without merit, where habeas
petitioner elected to proceed pro se at underlying
criminal trial. U.S.C.A. Const.Amend. 6.
[45] Criminal Law 110
1969
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110 Criminal Law
110XXXI Counsel
110XXXI(C) Adequacy of Representation
110XXXI(C)2 Particular Cases and Issues
110k1966 Appeal
110k1969 k. Raising Issues on
Appeal; Briefs. Most Cited Cases
(Formerly 110k641.13(7))
Appellate counsel's decision to include ineffective
assistance of trial counsel claim on direct appeal was
not deficient, as element of claim of ineffective
assistance; defendant repeatedly questioned trial
counsel's performance during trial, and having made
counsel's performance an issue during trial might
have prevented defendant from raising issue in post-
conviction proceedings if he had not raised it on
direct appeal. U.S.C.A. Const.Amend. 6.
[46] Criminal Law 110
1969
110 Criminal Law
110XXXI Counsel
110XXXI(C) Adequacy of Representation
110XXXI(C)2 Particular Cases and Issues
110k1966 Appeal
110k1969 k. Raising Issues on
Appeal; Briefs. Most Cited Cases
(Formerly 110k641.13(7))
Appellate counsel's decision to include ineffective
assistance of trial counsel claim on direct appeal did
not prejudice defendant, as element of claim of
ineffective assistance; defendant's ineffective
assistance of trial counsel claim would have failed
because he had chosen to proceed pro se. U.S.C.A.
Const.Amend. 6.
[47] Criminal Law 110
1967
110 Criminal Law
110XXXI Counsel
110XXXI(C) Adequacy of Representation
110XXXI(C)2 Particular Cases and Issues
110k1966 Appeal
110k1967 k. In General. Most Cited
Cases
(Formerly 110k641.13(7))
Appellate counsel's representation of defendant did
not prejudice defendant, as element of claim of
ineffective assistance, even though counsel's husband
represented defendant before appointed counsel was
assigned.
[48] Criminal Law 110
1519(15)
110 Criminal Law
110XXX Post-Conviction Relief
110XXX(B) Grounds for Relief
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110k1519(15) k. Appeal. Most Cited
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In Kentucky, a claimant is barred from asserting
ineffective assistance of appellate counsel in a post-
conviction motion and should instead seek to reopen
the original appeal. U.S.C.A. Const.Amend. 6.
[49] Criminal Law 110
1131(7)
110 Criminal Law
110XXIV Review
110XXIV(J) Dismissal
110k1131 In General
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Appeal. Most Cited Cases
Under Kentucky law, when an appeal is dismissed or
defaulted due to ineffective assistance of appellate
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
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515 F.3d 682
(Cite as: 515 F.3d 682)
counsel, a defendant may move to reinstate the
appeal in the original court of appeal. U.S.C.A.
Const.Amend. 6.
[50] Criminal Law 110
1519(15)
110 Criminal Law
110XXX Post-Conviction Relief
110XXX(B) Grounds for Relief
110k1511 Counsel
110k1519 Effectiveness of Counsel
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Cases
Under Kentucky law, when an appeal has already
been heard by the proper court, the case will not be
reexamined by the appellate court, and an ineffective
assistance claim may not be reviewed in a post-
conviction motion. U.S.C.A. Const.Amend. 6.
*687 ARGUED: Bruce P. Hackett, Office of
Jefferson District Public Defender, Louisville,
Kentucky, for Appellant. David A. Smith, Office of
the Attorney General, Frankfort, Kentucky, for
Appellee. ON BRIEF: Bruce P. Hackett, Daniel T.
Goyette, Leo G. Smith, Office of Jefferson District
Public Defender, Louisville, Kentucky, for Appellant.
David A. Smith, Office of the Attorney General,
Frankfort, Kentucky, for Appellee.
Before BOGGS, Chief Judge; and GIBBONS and
COOK, Circuit Judges.
OPINION
BOGGS, Chief Judge.
Gregory Wilson appeals a district court order denying
his petition for a writ of habeas corpus. Wilson raised
twenty-four claims in his petition, the district court
granted him a certificate of appealability as to eight
claims, and this court later expanded the certificate to
include a portion of one other claim. In brief, the
claims before this court are: invalid waiver of
Wilson's right to counsel, ineffective assistance of
trial counsel, Brady violations, failure to grant Wilson
a separate trial from his co-defendant, due process
violation due to admission of hair-matching evidence,
ineffective assistance of appellate counsel, denial of a
state-court forum in which to raise the ineffective
assistance of appellate counsel claim, and failure to
disclose*688 information relating to an affair
between Wilson's co-defendant and a judge (not the
trial judge) of the state court in which his trial was
conducted. In expanding the certificate of
appealability, we also agreed to hear Wilson's claim
that his state trial judge should have recused himself,
to the extent that claim relates to Wilson's claim that
his state trial was prejudiced because of an alleged
affair between his co-defendant and a different judge.
After reviewing all of Wilson's claims, we hold that
none of them meets the standard required for a grant
of the writ. Accordingly, we affirm the district court's
denial of the writ.
I
A. Factual History
The Kentucky Supreme Court summarized the
facts of the case as follows:
The victim was a restaurant employee in Newport.
On Friday, May 29, 1987 [,] at 11:45 p.m., she left
her best friend's house and said she was going
straight home. The prosecution presented evidence
that she had just parked her car outside of her
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515 F.3d 682
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apartment in Covington when she was abducted by
Wilson and co-defendant Humphrey at knife point.
Testimony at trial from various sources, including
Humphrey, indicated that the victim was forced
into the back seat of her own car. Humphrey drove
the car to the flood wall in Covington. Wilson took
the victim out of the car and took her up on the
flood wall and made her lie down with her eyes
closed while Humphrey went to put gas in the car.
After Humphrey returned from the gas station,
Wilson again forced the victim into the back seat of
the car.
Wilson made the victim unbutton her blouse.
Wilson finished undressing the victim and raped
her. He then tied her hands with a lamp cord, and
the victim began begging for her life. Wilson told
her she would have to die. Humphrey said, “You
have seen us. You know who we are, and you have
to die.” The victim kept begging, “Please don't kill
me. I don't want to die.” Wilson robbed her and
strangled her to death before they crossed the state
line into Indiana.
Wilson and Humphrey disposed of the victim's
naked corpse in a wooded thicket in rural Hendrix
[sic] County, Indiana. Later that same morning,
Saturday, May 30, Wilson and Humphrey stopped
at a Holiday Inn in Crawfordsville, Indiana.
According to a registration card, Humphrey and a
guest checked into the hotel at 4:19 a.m. Two of the
maids there identified the pair as Wilson and
Humphrey.
Wilson and Humphrey proceeded to a Payless Shoe
Store in Danville, Illinois where the victim's credit
card was used to purchase two pairs of women's
shoes and some hosiery. Later that same day, May
30, 1987, Wilson and Humphrey went to a K-Mart
in Danville where the victim's credit card was used
to make purchases totaling $227.46. Included in
these purchases were a man's Seiko watch and a
woman's Gruen watch for $68.00 each. Wilson and
Humphrey also paid cash for a number of cosmetic
items and some clothing. Later that day, the
victim's credit card was used to make a $24.50
purchase at an Amoco gas station in Urbana-
Champaign, Illinois.
On Sunday, May 31, Wilson and Humphrey
returned to the home of Humphrey's best friend,
Beverly Finkenstead. Finkenstead testified that
Humphrey had a K-Mart bag with a blouse in it.
They both had a watch on and were each wearing a
necklace. *689 On Sunday, June 7, Humphrey
visited Finkenstead and told her details of the
crimes in which she and Wilson had participated
the previous weekend. Eight days later, on June 15,
Finkenstead reported to the police what Humphrey
had told her. Also on June 15, the Hendrix [sic]
County, Indiana Sheriff's Department was
summoned to a wooded thicket where a corpse had
been discovered.
Authorities were able to determine the identity of
the corpse only by comparing its remaining teeth
with the victim's dental X-rays. The cause of death
could not be determined due to the absence of
internal organs. A forensic entomologist testified
that, based on the extent of blowfly maggot
development in and on the corpse, the estimated
time of death had occurred 15 to 19 days prior to
his June 16 examination of the corpse.
Wilson told cell mate Willis Maloney details of the
crimes including that the initial intent had been to
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515 F.3d 682
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“snatch” the victim and rob her; that the victim was
still alive when her money was taken from her; that
the victim was killed before they crossed the state
line into Indiana; that the corpse would be so badly
decomposed that no sperm would show up; and
that they had used the victim's credit card to
purchase, among other things, a watch Wilson was
wearing at the time of his arrest which Humphrey
later obtained by signing it out from one of the
jailers. Wilson also told Maloney, “I bet they can't
find what I used to strangle her with.”
Maloney's and Humphrey's account of the rape was
corroborated by the presence of semen on the back
seat of the victim's car. Head hairs similar to those
belonging to Humphrey were found inside the
victim's car. Pubic and head hairs similar to those
belonging to Wilson were also found inside the
victim's car. A handwriting expert established that
Humphrey had authored the forged credit card
receipts. A search of the hotel room where Wilson
and Humphrey were arrested produced various
items of clothing, all bearing K-Mart price tags.
Humphrey was the only defense witness during the
guilt/innocence phase of the trial. Wilson gave his
own closing argument in which he told the jury he
was not guilty, he “never met nor knew the victim”
and that Humphrey told her sister that she killed
the victim. The jury returned guilty verdicts against
both defendants. After the penalty phase, Wilson
was sentenced to death for kidnapping and murder.
He was sentenced to consecutive prison terms of
20, 20 and 10 years respectively for first-degree
rape, first-degree robbery and criminal conspiracy
to commit robbery.
Wilson v. Commonwealth,

836 S.W.2d 872, 876-77

(Ky.1992), cert. denied, 507 U.S. 1034, 113 S.Ct.
1857, 123 L.Ed.2d 479 (1993).
B. Procedural History
The Kentucky Supreme Court affirmed Wilson's
convictions and sentences for murder, rape, robbery,
and conspiracy, but set aside the jury's death sentence
for kidnaping and remanded the case for resentencing
on that charge. Id.
at 890-91,

overruled by St. Clair v.
Roark,

10 S.W.3d 482, 488 (Ky.1999)

(overruling
Wilson

's holding that a double jeopardy violation
occurs in convicting a defendant of both the murder
and the capital kidnaping of the same victim and
imposing separate death sentences for each
conviction). In January 1995, the trial court imposed
a sentence of life imprisonment for kidnaping.
Wilson appealed, and the Kentucky Supreme Court
reversed the sentence and remanded with the
requirement that Wilson be resentenced by a jury
unless the *690 trial court imposed the minimum
sentence. In March 1996, the trial court sentenced
Wilson to twenty years of imprisonment for
kidnaping. The Kentucky Supreme Court affirmed
the sentence in January 1997.
While Wilson's appeal was pending, the Governor of
Kentucky signed a warrant requiring that Wilson be
executed on February 1, 1996. The Kentucky
Supreme Court granted a motion to stay the
execution for sixty days to allow Wilson to file a
post-conviction motion pursuant to Kentucky Rule of
Criminal Procedure 11.42.
See
Bowling v.
Commonwealth,

926 S.W.2d 667 (Ky.1996)

. In his
Rule 11.42 hearing, Wilson alleged, among other
things, that he did not knowingly and voluntarily
waive his right to counsel and that he received
ineffective assistance of trial and appellate counsel.
The trial court held a nine-day evidentiary hearing in
September and October 1996 and denied the motion
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515 F.3d 682
(Cite as: 515 F.3d 682)
in March 1997. The Kentucky Supreme Court
affirmed that decision in May 1998. See Wilson v.
Commonwealth,

975 S.W.2d 901 (Ky.1998)

. The
United States Supreme Court denied certiorari in
March 1999. See Wilson v. Kentucky,

526 U.S. 1023,

119 S.Ct. 1263, 143 L.Ed.2d 359 (1999). On April
14, 1999, the Governor of Kentucky signed a warrant
requiring that Wilson be executed on May 14, 1999.
On May 10, 1999, the United States district court
granted Wilson a stay of execution and ordered that
his habeas corpus petition be filed within thirty days.
Wilson filed his federal habeas petition on June 7,
1999. He raised twenty-three claims in his petition
and added a twenty-fourth in a later pleading. The
district court granted Wilson's motion for an
evidentiary hearing on his twenty-first claim, alleging
ineffective assistance of appellate counsel, and held
the hearing in August 2001. The district court also
permitted Wilson to file transcripts of co-defendant
Humphrey's post-conviction proceedings from 2002
and 2003. In a roughly 150-page opinion, the district
court denied Wilson's petition for habeas relief and
issued a certificate of appealability for eight of his
claims. We expanded the certificate to include
Wilson's claim that his state trial judge should have
recused himself, but only to the extent that claim
relates to Wilson's separate claim that his state trial
was prejudiced because of an alleged affair between
his co-defendant and a different judge.
As summarized by the district court, the following
claims are now before us: Wilson did not knowingly,
intelligently, and voluntarily waive the right to
counsel (Claim Two); the performance of Wilson's
attorney denied Wilson the right to effective
assistance of trial counsel (Claim Three); the
prosecution's failure to disclose exculpatory and other
relevant evidence violated Brady (Claim Nine);
Wilson's rights were violated by failure to grant him a
separate trial from the co-defendant (Claim
Fourteen); Wilson's rights to a fair trial and due
process were violated by the admission of hair-
matching evidence (Claim Sixteen); Wilson was
denied effective assistance of counsel on the direct
appeal of his convictions to the Kentucky Supreme
Court (Claim Twenty-One); Wilson's rights were
violated because he was denied a state-court forum in
which to raise a claim that he received ineffective
assistance of appellate counsel (Claim Twenty-Two);
Wilson was denied a fair trial, due process of law, the
right to present a defense, and the right to cross-
examine and confront witnesses against him when
information relating to an alleged relationship
between his co-defendant and another trial judge in
the court in which his trial was conducted was not
disclosed to him (Claim Twenty-Four); and, to the
extent it involved this last claim, Wilson's *691 rights
to a fair trial and due process were violated by the
trial judge's failure to recuse himself (Claim Five).
II
Wilson filed his habeas corpus petition in June 1999,
well after the 1996 effective date of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA),
Pub.L. No. 104-132, 110 Stat. 1214; therefore, the
provisions of that Act apply to this case. See Lindh v.
Murphy,

521 U.S. 320, 336, 117 S.Ct. 2059, 138

L.Ed.2d 481 (1997); Frazier v. Huffman,

343 F.3d

780, 787 (6th Cir.2003), opinion altered on denial of
reh'g, 348 F.3d 174 (2003), cert. denied, 541 U.S.
1095, 124 S.Ct. 2815, 159 L.Ed.2d 261 (2004).
Under AEDPA, the habeas petitioner has the burden
of rebutting, by clear and convincing evidence, the
presumption that the state court's factual findings
were correct. See 28 U.S.C. § 2254(e)(1); McAdoo v.
Elo,

365 F.3d 487, 494 (6th Cir.2004)

. Furthermore,
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515 F.3d 682
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if the state court decided a claim, a writ of habeas
corpus must be denied unless the state court decision
(1) “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United
States;” or (2) “was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceedings.” 28 U.S.C.
§ 2254(d)(1)-(2).
[1]
[2]
Under the “contrary to” clause, a federal court
may grant habeas relief if the state court arrives at a
conclusion opposite to that reached by the Supreme
Court on a question of law or if the state court
decides a case differently than the Supreme Court has
decided on a set of materially indistinguishable facts.
Williams v. Taylor,

529 U.S. 362, 405-06, 120 S.Ct.

1495, 146 L.Ed.2d 389 (2000); Bugh v. Mitchell,

329

F.3d 496, 501 (6th Cir.2003). “ ‘[C]learly established
Federal law, as determined by the Supreme Court of
the United States,’ refers to ‘the holdings, as opposed
to the dicta, of [the Supreme] Court's decisions as of
the time of the relevant state-court decision.’ ”
Williams v. Bagley,

380 F.3d 932, 942 (6th Cir.2004)

(quoting Williams,

529 U.S. at 412, 120 S.Ct. 1495).

[3]
[4]
[5]
Under the “unreasonable application”
clause, a federal court may grant habeas relief if the
state court identifies the correct governing legal
principle from the Supreme Court's decisions but
unreasonably applies that principle to the facts.
Williams,

529 U.S. at 407-08, 120 S.Ct. 1495;

Bugh,
329 F.3d at 501. Relief is also available under this
clause if the state court decision either unreasonably
extends or unreasonably refuses to extend a legal
principle from the Supreme Court precedent to a new
context. Lancaster v. Adams,

324 F.3d 423, 429 (6th

Cir.), cert. denied, 540 U.S. 1004, 124 S.Ct. 535, 157
L.Ed.2d 409 (2003). The proper inquiry for the
“unreasonable application” analysis is whether the
state court decision was objectively unreasonable and
not simply erroneous or incorrect. Williams,

529 U.S.

at 409-11, 120 S.Ct. 1495; Mitchell v. Mason,

325

F.3d 732, 738 (6th Cir.2003), cert. denied, 543 U.S.
1080, 125 S.Ct. 861, 160 L.Ed.2d 824 (2005).
[6] We review de novo a district court's legal
conclusions denying habeas relief. See Armstrong v.
Morgan,

372 F.3d 778, 781 (6th Cir.2004)

. We review
the district court's factual findings for clear error. See
Lucas v. O'Dea,

179 F.3d 412, 416 (6th Cir.1999)

.
III
A. Invalid Waiver of Right to Counsel (Claim
Two)
Wilson argues that he did not voluntarily waive his
right to counsel and elect to *692 proceed pro se
because the trial court effectively forced him to
choose between representing himself or being
represented by allegedly unprepared and incompetent
counsel. Wilson maintains that he repeatedly told the
trial court that he did not want to represent himself
and did not know how to do so and repeatedly
expressed his dissatisfaction with the attorneys who
had volunteered to represent him. After briefly
recounting the convoluted history of Wilson's
relationship with his counsel, we turn to the relevant
federal law, as determined by the Supreme Court, and
conclude that Wilson's claim fails.
1. Pre-Trial and Trial Proceedings
Wilson's defense team changed several times during
the pre-trial period. In July 1987, the state trial court
appointed two attorneys to represent Wilson, Clyde
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515 F.3d 682
(Cite as: 515 F.3d 682)
Richardson and Steve Megerle. In October 1987,
Wilson filed a motion to act as co-counsel, invoking
his “right to participate fully in his own defense
including acting as counsel.” (citing Faretta v.
California,

422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d

562 (1975)). Around that time, Megerle withdrew,
and the court appointed Kevin McNally from the
Kentucky Department of Public Advocacy (KDPA) in
November 1987. In February 1988, McNally secured
a continuance, shifting the trial date from March to
September of that year. In May 1988, McNally
requested permission to withdraw from the case,
stating that he had already tendered his resignation
from the KDPA in January 1988, had been pushing
back his termination date because of Wilson's case,
and was exhausted. Richardson remained as counsel,
but had told the judge that he was simply not able to
lead a capital defense. At this point, Judge Lape, the
state trial judge, posted a notice outside his
courtroom seeking volunteer counsel to represent
Wilson. Sharon Sullivan responded to the notice and
volunteered to act as a research assistant. Around the
same time, John Foote volunteered to work on the
case doing “leg work,” but not to act as lead attorney,
and William Hagedorn volunteered and was
appointed as lead counsel.
Almost immediately, issues arose between McNally
and Hagedorn. Once McNally had withdrawn and
Hagedorn had volunteered to take on Wilson's case,
the two attorneys met in early June 1988. After that
meeting, McNally apparently developed some
concerns about Hagedorn's ability to handle Wilson's
case. McNally refused to turn over Wilson's case file
to Hagedorn without explicit permission from
Wilson. McNally's colleagues at the KDPA undertook
an investigation of Hagedorn's qualifications and past
conduct in other cases. McNally shared the
information gathered with Wilson and told Wilson
not to authorize the transfer of files until Judge Lape
had been apprised of the information regarding
Hagedorn. On June 17, 1988, Wilson filed a “Motion
for Justice and Fairness” expressing his
dissatisfaction with Hagedorn and Richardson and
requesting that Judge Lape dismiss all volunteer and
appointed counsel and appoint lawyers “experienced
in handling ‘Capital Death Penalty’ cases.” Judge
Lape granted Richardson's motion to withdraw on
July 6, 1988. In response to McNally's continued
visits and communication with Wilson, Judge Lape
ordered that such visits stop. Around this same time,
Hagedorn visited Wilson in jail, but could not
convince him to turn over the case file.
In response to Wilson's motion to disqualify
Hagedorn and Foote, Judge Lape held a hearing on
August 16, 1988. According to Judge Lape, the
purpose of the hearing was to “put on qualifications-
as to what qualifications a party should have to
handle a case such as this.” Mario Conte, Chief Trial
Attorney for the Federal*693 Public Defenders
Office in San Diego, California, appeared to argue
the motion on Wilson's behalf. Wilson, Brenda
Humphrey, Humphrey's counsel, and Hagedorn were
also present. Hagedorn objected vehemently to the
hearing, stating that Conte was jeopardizing Wilson's
case and that the court had no authority to conduct
such a hearing. Conte began to outline the role of the
capital defense attorney and then proposed to discuss
Hagedorn's “unethical behavior regarding stolen
property” and “regarding a malpractice suit.” Judge
Lape stated that he was not going to hear any
evidence regarding Hagedorn's background and
would not “do anything in the form of character
assassination....” Judge Lape then terminated the
hearing. No further inquiry or review into the
qualifications of Hagedorn and Foote was
undertaken.
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515 F.3d 682
(Cite as: 515 F.3d 682)
At the beginning of trial on September 2, 1988, a
series of colloquies took place in chambers between
Wilson, Judge Lape, Hagedorn, and Commonwealth
Attorney Donald Buring, the prosecutor. During these
colloquies, Wilson gave conflicting statements about
whether he wanted to continue pro se. Wilson
reiterated his belief that his appointed attorneys were
incompetent to represent him, that he had no
confidence in his attorneys' ability to represent him,
and that Hagedorn and Foote did not speak for him.
Judge Lape then informed Wilson, “If you wish to
represent yourself, under the Constitutional
Amendments you have indicated to me, sir, you
certainly have that right, and I will certainly let you
do that.” “I do,” replied Wilson. Ibid. However,
Wilson then stated, “And I don't want to proceed pro
se. I can't ‘cause I don't know how to proceed pro
se.” The colloquy continued as follows:
JUDGE LAPE: That's right, you don't. So based
upon that statement then, Mr. Hagedorn and Mr.
Foote then will continue because you say that you
cannot pro se.
DEFENDANT WILSON: So you're saying you're
forcing Mr. Hagedorn and Mr. Foote upon me then
as counsel.
JUDGE LAPE: I am appointing, sir, Mr. Hagedorn
and Mr. Foote to represent you, sir.
DEFENDANT WILSON: I oppose Mr. Hagedorn
and Mr. Foote.
JUDGE LAPE: I know you do. That's certainly
evident.
DEFENDANT WILSON: They're not competent.
* * *
JUDGE LAPE: Well, I don't how you can say it
any other way. You have said that. Now these men
are going to represent you. There is no other
counsel to represent you. You don't have counsel to
represent you, so that you are now represented by
them, and your motion is overruled.
MR. HAGEDORN: Your Honor, I would like to
add something to that motion.
JUDGE LAPE: Certainly.
MR. HAGEDORN: As much of the motion that
says that Mr. Wilson wants to try this case himself,
but says he's not qualified to try the case himself, I
think that the Court should allow him to try it
himself and I will sit there and advise him. I do not
intend to speak for Mr. Wilson.
JUDGE LAPE: Well, I have-
DEFENDANT WILSON: I'm speaking for myself.
JUDGE LAPE:-reviewed the case of Faretta v.
California, and under it he has his constitutional
right to represent himself, and if he tells me though
that he's incompetent to do so, then I have to *694
be concerned about that. Everyone has the right to
represent themselves....
* * *
MR. HAGEDORN: Judge, I think he should try the
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515 F.3d 682
(Cite as: 515 F.3d 682)
case himself.
JUDGE LAPE: Well, I can't let him sit out there
and say nothing. I'm going to-
* * *
DEFENDANT WILSON: Okay. I oppose my
counsel.
JUDGE LAPE: You oppose your counsel.
DEFENDANT WILSON: They don't represent me.
JUDGE LAPE: They don't represent you. All right,
sir, then you represent yourself. Mr. Hagedorn and
Mr. Foote, you will stay with him out there in the
event that he needs some help. Other than that, Mr.
Wilson represents himself.
After a brief recess, Judge Lape confirmed with
Wilson that he intended to proceed pro se. Wilson
replied, “Yeah. Like I said, I will proceed pro se, only
to do so in the absence of competent, ethical,
experienced, capital defense attorneys.” Judge Lape,
borrowing from Sixth Circuit instructions to United
States district courts on obtaining valid waivers of the
right to counsel,FN1 then explained to Wilson all of the
hazards of proceeding pro se and concluded that
Wilson was acting consciously and voluntarily. The
rest of the trial proceeded with Wilson occasionally
directing Hagedorn to conduct cross-examination of
prosecution witnesses. Brenda Humphrey testified in
her own defense, and she was the only defense
witness called. Wilson made his own closing
statement, and Hagedorn made a statement for the
record out of the presence of the jury. Hagedorn also
made statements to the jury during the penalty phase
of the trial.
FN1. See United States v. McDowell,

814

F.2d 245 (6th Cir.1987).
2. Waiver of the Right to Counsel
Wilson claims that his waiver of the right to counsel
was invalid because he was forced to choose between
continuing pro se or continuing with allegedly
incompetent counsel.
[7]
[8]
[9]
[10]

[11]

A criminal defendant has the right
to represent himself without counsel, provided that he
knowingly and intelligently foregoes the benefits of
having counsel assist him. See Faretta v. California,
422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562
(1975). A defendant “should be made aware of the
dangers and disadvantages of self-representation, so
that the record will establish that ‘he knows what he
is doing and his choice is made with eyes open.’ ”
Ibid. (quoting Adams v. United States ex rel.
McCann,

317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed.

268 (1942)); see also Johnson v. Zerbst,

304 U.S.

458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)
(stating that waiver of counsel must be “competently
and intelligently” made). The Supreme Court has
provided guidelines for courts to consider when
accepting a waiver of counsel:
To be valid such waiver must be made with an
apprehension of the nature of the charges, the
statutory offenses included within them, the range
of allowable punishments thereunder, possible
defenses to the charges and circumstances in
mitigation thereof, and all other facts essential to a
broad understanding of the whole matter.
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Page 20
515 F.3d 682
(Cite as: 515 F.3d 682)
Von Moltke v. Gillies,

332 U.S. 708, 724, 68 S.Ct.

316, 92 L.Ed. 309 (1948) (quoted in Fowler v.
Collins,

253 F.3d 244, 249 (6th Cir.2001)

). The extent
to which a court must probe into these elements will
vary *695 from case to case, but “the court's
obligation to maintain the integrity of the Sixth
Amendment remains constant.” Fowler,

253 F.3d at

249. “The record must show, or there must be an
allegation and evidence which show, that an accused
was offered counsel but intelligently and
understandingly rejected the offer.” Carnley v.
Cochran,

369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d

70 (1962). Accordingly, a trial court's outright failure
to explain the risks and dangers in proceeding pro se
or a failure to adequately examine the waiver will
justify issuing a writ of habeas corpus. See James v.
Brigano,

470 F.3d 636, 643-44 (6th Cir.2006)

;
Fowler,

253 F.3d at 249-50

.
[12] In the instant case, the Kentucky Supreme Court
held that Wilson knowingly and voluntarily waived
his right to counsel. See Wilson,

836 S.W.2d at 880-

81. The court recounted the extent to which Judge
Lape warned Wilson of the hazards of proceeding pro
se, concluding “the trial judge zealously made Wilson
aware of the dangers of the path he had chosen.” Id.
at 883. The Kentucky Supreme Court held that it:
believe[d] that a fair reading of the record as a
whole clearly indicates that Wilson understood the
dangers and disadvantages of self-representation.
He knew he was entitled to counsel, yet the record
clearly establishes that he elected to proceed with
his eyes wide open. Wilson's course of conduct
during the trial ... put the trial judge between a rock
and a hard place. We believe that the trial judge's
decision to allow Wilson to proceed with standby
counsel was under the circumstances fair and
reasonable.
Id.
at 884.

The state post-conviction hearings and the
federal district court habeas proceedings also held
that Wilson had knowingly and intelligently waived
his counsel and that no further pre-trial inquiry into
his appointed counsel's competence was
constitutionally required.
The Kentucky Supreme Court's reasoning is neither
contrary to, nor an unreasonable application of,
Supreme Court precedent. Judge Lape's repeated
colloquies with the defendant adequately probed
Wilson's understanding of the consequences of the
waiver. Judge Lape confirmed with Wilson that he
intended to proceed pro se. Wilson replied, “Yeah.
Like I said, I will proceed pro se, only to do so in the
absence of competent, ethical, experienced, capital
defense attorneys.” Judge Lape modeled his colloquy
with Wilson on the standards for obtaining a waiver
that we have set for United States district courts. See
United States v. McDowell,

814 F.2d 245 (6th

Cir.1987). Exercising our supervisory powers over
federal courts in this circuit, we introduced those
standards to ensure that federal criminal defendants'
waivers of counsel were knowing, voluntary, and
intelligent. See id.
at 248-50.

Although there is no evidence that Wilson was acting
to delay his trial, we have previously held that it is
not an unreasonable application of Faretta to find a
waiver of counsel where a defendant with a history of
switching attorneys knew of his right to counsel,
knew the charges and potential penalties, and rejected
appointed counsel while asserting he did not want to
represent himself. See King v. Bobby,

433 F.3d 483,

492-93 (6th Cir.2006). Even when a defendant “did
not straightforwardly assert his right to self-
representation, and even told the trial court twice that
he did not wish to represent himself,” we held that
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“by rejecting all of his options except self-
representation,” the defendant validly waives his
right to counsel in state court. Id.
at 492.

*696 [13] Wilson's arguments that the trial court
should have conducted further inquiry into his
appointed counsels' competence and that their alleged
incompetence invalidated his waiver of the right to
counsel are unpersuasive. In response to Wilson's
claims, the Kentucky Supreme Court stated that it
had not found any cases granting authority to a trial
court to “allow an indigent defendant to put his
appointed counsel on trial for alleged past
transgressions.” Wilson,

836 S.W.2d at 880.

Relying
on Sixth Circuit case law, the Kentucky Supreme
Court stated: “In order to warrant a substitution of
counsel during trial, a defendant must show good
cause, such as a conflict of interest, a complete
breakdown of communication, or an irreconcilable
conflict which leads to an apparently unjust verdict,
and demonstrate prejudice by the attorney's
performance.” Ibid. (citing Wilson v. Mintzes,

733

F.2d 424 (6th Cir.1984)). The Kentucky Supreme
Court applied those standards to Wilson's conflict
with Hagedorn (which had been ongoing during the
pre-trial period and came to a head the day before
trial was set to begin) and held that Wilson's case did
not require substitution of counsel.
[14] We agree. Indigent defendants do not have the
right to counsel of their choice. See Caplin &
Drysdale, Chartered v. United States,

491 U.S. 617,

624, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989); Morris
v. Slappy,

461 U.S. 1, 14, 103 S.Ct. 1610, 75 L.Ed.2d

610 (1983). In the present case, Judge Lape held a
special hearing on Wilson's motion for new counsel.
At that hearing, Mario Conte outlined the role of the
capital defense attorney. Judge Lape suspended the
hearing when Conte began to address Hagedorn's
alleged incompetence. Since no Supreme Court
precedent compelled such a hearing, Judge Lape's
decision to suspend it was not error. Although we
have held, in reviewing a federal conviction, that a
federal trial court has a duty to determine the reasons
for an indigent defendant's dissatisfaction with
current counsel when he requests that appointed
counsel be discharged and new counsel appointed,
United States v. Iles,

906 F.2d 1122, 1130 (6th

Cir.1990), because Iles is not “clearly established
federal law, as determined by the Supreme Court of
the United States,” it cannot provide a basis for
granting habeas relief under AEDPA. 28 U.S.C. §
2254(d)(1); see James,

470 F.3d at 643

.
B. Ineffective Assistance of Trial Counsel (Claim
Three)
[15]

[16]

[17]

Since Wilson waived his right to
counsel, his claim of ineffective assistance of trial
counsel necessarily fails. By exercising his
constitutional right to present his own defense, a
defendant necessarily waives his constitutional right
to be represented by counsel. See Faretta,

422 U.S. at

834, 95 S.Ct. 2525. Logically, a defendant cannot
waive his right to counsel and then complain about
the quality of his own defense. Id.
at 834 n. 46, 95

S.Ct. 2525; Gall v. Parker,

231 F.3d 265, 320 (6th

Cir.2000).
Despite Wilson's waiver, the Kentucky Supreme
Court addressed his ineffective assistance claim and
held that Wilson had not met the standards for a grant
of habeas relief established in Strickland v.
Washington,

466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). See Wilson,

836 S.W.2d at 878-

80. The court found that Wilson hampered counsels'
efforts to assist him by, for example, not allowing
counsel to make an opening statement or closing
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argument during the guilt phase and not testifying or
calling any defense witnesses to testify. The court
held that, to the extent Wilson permitted Hagedorn to
participate, Hagedorn performed effectively. *697 Id.
at 879. “Wilson has failed to demonstrate in any way
that he was prejudiced by Hagedorn's performance.
Considering all the evidence of guilt, we fail to see
how the verdict would have been any different had
Wilson been supplied with the best criminal defense
attorney in the nation.” Id.
at 880.

We find no basis for overturning the Kentucky
Supreme Court's holding. Hagedorn and Foote served
as standby counsel, available if Wilson requested
help. To the extent Hagedorn and Foote failed to act
during trial, Wilson merely suffered the consequences
of his decision to proceed pro se. Given this fact, we
cannot say that the Kentucky Supreme Court's
analysis was contrary to, or an unreasonable
application of, Strickland.
In fact, the record refutes one of Wilson's most
serious charges of ineffective assistance. Wilson
asserts that Hagedorn and Foote refused his request
that they cross-examine Willis Maloney, a key
prosecution witness who testified that Wilson, while
they were both incarcerated, had confessed the
murder, rape, and kidnaping. On direct appeal, the
Kentucky Supreme Court found that “Wilson chose
not to cross-examine Maloney.” Wilson,

836 S.W.2d

at 885. Wilson has the burden of rebutting, by clear
and convincing evidence, the presumption that this
factual finding is correct. See 28 U.S.C. § 2254(e)(1).
A review of the trial transcript supports the state
court's finding and fails to support Wilson's claim.
Humphrey's attorney cross-examined Maloney, after
which the trial court asked Wilson whether he wanted
to cross-examine the witness. Wilson renewed his
objection to being represented by Hagedorn and
Foote and replied that he did not know how to cross-
examine. When the trial court asked Wilson if he
wanted Hagedorn or Foote to cross-examine
Maloney, Wilson replied, “If the Court wishes to.”
The trial court told Wilson it was Wilson's decision,
not the court's. Wilson stated, “It is not my decision
either.” Thus, when offered the opportunity, Wilson
declined to cross-examine Maloney and did not ask
for Hagedorn or Foote to cross-examine Maloney.
Wilson also argues that Hagedorn had a conflict of
interest because Hagedorn allegedly represented
Maloney. Appellant's Br. at 26, 44. The facts of this
claim, however, are not clear. In his state post-
conviction proceedings, Wilson submitted an
affidavit from Maloney as evidence of Hagedorn's
incompetence. Maloney averred that Hagedorn had
represented him in a criminal matter in Campbell
County, Kentucky, and that Hagedorn's representation
had been “totally incompetent.” Maloney's affidavit
did not indicate the charges or the date of the
proceedings during which Hagedorn allegedly
represented him. However, in response to Wilson's
request for impeaching information about Maloney,
the prosecution informed Wilson that Maloney had
been jailed in Campbell County on charges of theft in
February 1988. Thus, there is circumstantial evidence
in the record for the proposition that Hagedorn
represented Maloney earlier in 1988 on charges of
theft in Campbell County. The results of that
representation (other than Maloney's insistence that
Hagedorn performed badly) are unknown. Wilson
cites United States v. Cronic for the proposition that
prejudice will be presumed if defense counsel suffers
an actual conflict of interest. See 466 U.S. 648, 662 n.
31, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
[18] However, even assuming that Hagedorn was
Maloney's attorney earlier in 1988 (and not during
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some other previous time when Maloney was
incarcerated), Wilson has not demonstrated that *698
Hagedorn “ ‘actively represented conflicting interests'
and that ‘an actual conflict of interest adversely
affected his lawyer's performance.’ ” Strickland,

466

U.S. at 692, 104 S.Ct. 2052 (quoting Cuyler v.
Sullivan,

446 U.S. 335, 348, 350, 100 S.Ct. 1708, 64

L.Ed.2d 333 (1980)). Moreover, unfortunately for
Wilson, even if we were to presume prejudice due to
an actual conflict of interest, Hagedorn was not
Wilson's attorney when the time came to cross-
examine Maloney since Wilson had elected to
proceed pro se. As discussed above, Wilson forbade
Hagedorn from cross-examining Maloney and chose
not to cross-examine Maloney himself. Therefore, the
decision not to cross-examine cannot be attributed to
any alleged conflict of interest. Thus, we agree with
the district court's ultimate holding that, given
Wilson's waiver, the alleged conflict here does not
provide a basis for granting habeas under AEDPA.
[19] The question of whether Wilson may
nevertheless assert ineffective assistance of counsel
arising from Hagedorn's actions before Wilson
elected to proceed pro se is closer. At oral argument,
Wilson's counsel suggested that Hagedorn's failure to
conduct any mitigation investigation during the time
when he was still Wilson's counsel is sufficient to
sustain an ineffective assistance of counsel claim.
This argument apparently was not raised before the
state courts, and the Kentucky Supreme Court's
application of Strickland only addressed Hagedorn's
conduct after Wilson's waiver. See Wilson,

836

S.W.2d at 877-79. Because this conduct occurred pre-
waiver, the logic above that exercising the Faretta
right to represent oneself necessarily eliminates
claims of ineffective assistance does not apply.
However, because we hold that the failure to begin a
mitigation investigation before Wilson's waiver was
not prejudicial, we do not alter our conclusion above
that Wilson's claim of ineffective assistance fails.
[20]

[21]

Under Strickland, a successful ineffective
assistance of counsel claim must demonstrate both
the objective unreasonableness of defense counsel's
conduct and its prejudicial effect. See Strickland,

466

U.S. at 687-88, 104 S.Ct. 2052. It could be
objectively unreasonable, under some circumstances,
for defense counsel to fail to investigate and prepare
mitigating evidence for the penalty phase of a capital
trial. See Wiggins v. Smith,

539 U.S. 510, 523-29, 123

S.Ct. 2527, 156 L.Ed.2d 471 (2003) (finding that
counsels' decision to cease investigating after
receiving the pre-sentencing report fell short of
prevailing professional standards). It is also correct,
as the Kentucky Supreme Court noted, that reviewing
courts “must judge the reasonableness of counsel's
challenged conduct on the facts of the particular case,
viewed as of the time of counsel's conduct.” Wilson,
836 S.W.2d at 878; see Rompilla v. Beard,

545 U.S.

374, 385, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005)
(stating that courts should make “every effort to view
the facts as a defense lawyer would have done at the
time”). Thus, applying the first prong of Strickland
requires looking at defense counsel's conduct at the
time of its occurrence (or when it should have
occurred in the case of omissions). All else being
equal, the failure to begin a mitigation investigation
until a week before a capital trial could be a basis for
claiming deficient conduct by defense counsel. See
Wiggins,

539 U.S. at 523-29, 123 S.Ct. 2527;

Williams,

529 U.S. at 395-96, 120 S.Ct. 1495

.
The second prong of
Strickland
requires
demonstration of prejudice. In particular, “[t]o
establish prejudice [the defendant] ‘must show that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the
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proceeding*699 would have been different. A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.’ ” Williams,
529 U.S. at 391, 120 S.Ct. 1495 (quoting Strickland,
466 U.S. at 694, 104 S.Ct. 2052). In this case,
Wilson's decision to proceed pro se substantially
affects our analysis of whether Hagedorn's pre-
waiver conduct was prejudicial. As noted above,
Wilson waived his right to counsel on the first day of
trial and thereafter controlled his defense, including
deciding whether he or Hagedorn would cross-
examine witnesses and make opening or closing
statements to the jury. Even assuming Hagedorn's
pre-waiver conduct was deficient, the fact of the
waiver makes it virtually impossible to assess
whether such conduct was prejudicial. Although there
may be cases in which the facts indicate that pre-
waiver defense conduct sufficiently prejudiced the
defendant to sustain an ineffective assistance claim,
this is not such a case.
In this case, Wilson had indicated throughout the pre-
trial period that he did not want Hagedorn and Foote
to represent him. On September 2, 1988, before the
trial began, Wilson confirmed during his colloquy
with Judge Lape that he intended to proceed pro se.
Thus, Wilson elected to proceed pro se and
preempted any of Hagedorn's efforts well before any
penalty phase would begin (assuming Wilson were
found guilty). Judge Lape appointed Hagedorn and
Foote to act as standby counsel, but Wilson clearly
exercised control over the conduct of his trial. During
the actual penalty phase, Wilson made a statement to
the jury denying his guilt. The failure to present
mitigation evidence cannot be attributed to Hagedorn.
Finally, the evidence of Wilson's role in raping and
killing the victim was overwhelming, including
testimony from Maloney and Humphrey. This
evidence leads us to conclude that Wilson cannot
demonstrate prejudice from Hagedorn's pre-waiver
conduct. Therefore, Wilson's claim of ineffective
assistance based on pre-waiver conduct also fails.
C. Failure to Disclose Relationship Between
Humphrey and Judge Gilliece (Claims Five and
Twenty-Four)
In claim five of his habeas petition, Wilson alleged
that he was denied a fair trial because the trial judge,
Judge Lape, refused to recuse himself. In claim
twenty-four, Wilson alleged that he was deprived of
his constitutional rights at trial because a sexual
relationship between his co-defendant, Brenda
Humphrey, and another state trial court judge, Judge
Gilliece, was not disclosed to him. The district court
granted a certificate of appealability on claim twenty-
four, and we granted Wilson's application for a
certificate on claim five, but only to the extent it
involves claim twenty-four. Because the Humphrey-
Gilliece relationship was undisclosed until well after
Wilson's state court proceedings had concluded, the
Kentucky courts did not assess the merits of that
claim. Accordingly, the federal habeas court may
review the claim de novo. See Lyell v. Renico,

470

F.3d 1177, 1181-82 (6th Cir.2006); McAdoo,

365 F.3d

at 498. We hold that Wilson's claim has no merit.
Wilson filed a pre-trial motion on July 29, 1988, for
Judge Lape to recuse himself on grounds having
nothing to do with the Humphrey-Gilliece
relationship. The trial court forwarded the motion to
the Chief Justice of the Kentucky Supreme Court for
consideration. See Ky.Rev.Stat. § 26A.020(1). The
Chief Justice denied the motion. After the trial, on
direct appeal, Wilson raised the issue again. In
addition to his original arguments, Wilson argued that
Judge Lape exhibited bias and hostility toward him
by allegedly calling him bad names, noting that
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Wilson did not *700 trust any lawyer, expressing a
belief that Wilson was engaging in obstructionist
tactics, and speaking to Wilson in an angry tone of
voice before the jury. See Wilson,

836 S.W.2d at 885.

The Kentucky Supreme Court found that Wilson had
failed to support his allegations with citations to the
record and that the record as a whole did not support
Wilson's claim. Id.
at 885-86.

The court concluded
that “entire record indicates that the trial court treated
Wilson with respect....” Id.
at 886.

At the time of Wilson's trial, Judge Gilliece was also
a Kenton County Circuit Judge. Judge Gilliece's
relationship with Brenda Humphrey came to light in
2001, after Wilson had exhausted his state court
remedies and filed his petition for a federal writ of
habeas corpus. In May 2001, after she had exhausted
her direct appeals and state post-conviction relief,
Brenda Humphrey sought a new hearing on the
fairness of her trial because of her relationship with
Judge Gilliece. Her motion for a hearing was granted,
and evidence was admitted. In July 2002, during
Brenda Humphrey's state post-conviction evidentiary
hearing, testimony regarding her relationship with
Judge Gilliece was introduced. Wilson attempted to
intervene in that hearing, but the state trial court
denied that motion. The Kentucky Supreme Court
affirmed the denial.
See
Humphrey v.
Commonwealth,

No.2003-SC-0671-TG, 2005 WL

924188, at *3 (Ky. Apr. 21, 2005). The district court
permitted Wilson to supplement the federal habeas
record with transcripts, exhibits, and the trial court's
findings of fact and conclusions of law from
Humphrey's post-conviction hearing.
At her July 2002 hearing, Humphrey testified that she
first met Judge Gilliece in 1985, when he performed
a marriage ceremony for Humphrey and her third
husband. Judge Gilliece later contacted Humphrey,
who had previously been arrested for prostitution,
and they began a sexual relationship. Humphrey
estimated that she saw Judge Gilliece at least once a
week from 1985 to 1987. She called Judge Gilliece
after her arrest for the crimes she committed with
Wilson, and he expressed support for her, but did not
see her until he learned her case had been assigned to
Judge Lape. Humphrey continued to see Gilliece
during her trial. According to Humphrey, Judge
Gilliece believed in her innocence and told her not to
worry about the charges against her. She testified that
no plea deal was ever offered and that Judge Gilliece
did not intervene on her behalf. Humphrey and
Wilson were tried together, and Humphrey was also
convicted and sentenced to life in prison without the
possibility of parole for twenty-five years for capital
kidnaping, and a total of fifty years in prison for
facilitation of murder, first-degree robbery,
facilitation of first-degree rape, and criminal
conspiracy. See Humphrey v. Commonwealth,

836

S.W.2d 865, 867 (Ky.1992).
Donald Buring, the prosecutor who tried the case
against Wilson and Humphrey, also testified at
Humphrey's evidentiary hearing. He stated that the
jail staff brought him a letter that Judge Gilliece sent
to Humphrey after her arrest but before her
indictment. According to Buring, he could not recall
the contents of the letter beyond recalling that it
generally stated that “things will work out.” Buring
thought the correspondence unusual, but it did not
lead him to suspect an intimate relationship between
Humphrey and Judge Gilliece. Buring testified that
he did not pursue the matter once the case was
assigned to Judge Lape and that the relationship had
no effect on the case. Buring did not discuss any
possible relationship with Judge Gilliece, Judge
Lape, or Humphrey's counsel. Buring sought the
death penalty against Humphrey and *701 did not
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engage in any plea negotiations with her.
Because the state courts had not adjudicated Wilson's
claim, the district court analyzed the claim under 28
U.S.C. § 2254(e)(2) to determine if an evidentiary
hearing was required. The district court properly
found that Wilson was excused for not developing the
factual record in state court since the Humphrey-
Gilliece relationship only came to light after Wilson
had exhausted his state remedies. The district court
analyzed Wilson's claim that the failure to disclose
the relationship between Judge Gilliece and
Humphrey denied him a fair trial under Brady v.
Maryland,

373 U.S. 83, 87, 83 S.Ct. 1194, 10

L.Ed.2d 215 (1963). The court found that, although
the evidence of the Humphrey-Gilliece relationship
was clearly not available to Wilson during his trial,
there was no basis for determining that the outcome
of the trial would have been different if the
relationship between Humphrey and Gilliece had
been disclosed at the time of the trial because it was
not relevant to Wilson's case. In particular, the district
court noted that there was no evidence that Judge
Gilliece approached Judge Lape or the prosecutor on
Humphrey's behalf. The district court concluded that
the alleged facts underlying Wilson's claim were not
sufficient to establish by clear and convincing
evidence that, but for the alleged constitutional error,
no reasonable finder of fact could have found him
guilty.
[22] We granted Wilson a certificate of appealability
for his claim that Judge Lape should have recused
himself, but only as that claim relates to the possible
impact of the relationship between Humphrey and
Gilliece. We assess claims of judicial bias against
state court judges under the standard announced by
the Supreme Court in Liteky v. United States,

510

U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994), a
case involving statutory recusal standards for federal
judges. See Lyell v. Renico,

470 F.3d 1177, 1186 (6th

Cir.2006). In Liteky, the Supreme Court held that
“judicial rulings alone almost never constitute a valid
basis for a bias or partiality motion.” 510 U.S. at 555,
114 S.Ct. 1147. To show improper prejudice, a
judge's comments must “display a deep-seated
favoritism or antagonism that would make fair
judgment impossible.” Ibid.
[23] Wilson's claim fails under Liteky because he has
not identified any comment or action by Judge Lape
that demonstrates the degree of antagonism necessary
for him to succeed in a claim of judicial bias.
Moreover, there was no evidence from Humphrey's
hearing or elsewhere that Judge Lape was influenced
by, or even knew of, the relationship between
Humphrey and Gilliece. There is nothing in the state
trial record indicating that Judge Lape favored
Humphrey or disfavored Wilson. Thus, Wilson's
claim that Judge Lape should have recused himself
fails.
[24]

[25]

[26]

[27]

Regarding the Humphrey-Gilliece
relationship, Brady requires that the prosecution
disclose evidence that may impeach the credibility of
a witness. See Giglio v. United States,

405 U.S. 150,

153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The
evidence must be turned over if it is both favorable to
the accused and material to guilt or punishment. See
United States v. Jones,

399 F.3d 640, 647 (6th Cir.)

,
cert. denied, 546 U.S. 863, 126 S.Ct. 148, 163
L.Ed.2d 146 (2005). Evidence is material if there is a
reasonable probability that, had the evidence been
disclosed to the defense, the outcome of the case
would have been different. See Kyles v. Whitley,

514

U.S. 419, 433-34, 115 S.Ct. 1555, 131 L.Ed.2d 490
(1995); Zuern v. Tate,

336 F.3d 478, 484 (6th

Cir.2003). A reasonable *702 probability is a
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515 F.3d 682
(Cite as: 515 F.3d 682)
“probability sufficient to undermine confidence in the
outcome.” United States v. Bagley,

473 U.S. 667,

682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
[28]

[29]

In this case, even though Buring knew that
Gilliece and Humphrey were corresponding, Wilson's
claim fails under Brady because there is not a
reasonable probability that, had the evidence been
disclosed to him, the outcome of the case would have
been different. See Zuern,

336 F.3d at 484.

Humphrey
was not the only witness to testify against Wilson.
Much of the prosecution's case derived from his
confession to his cell-mate Maloney and
circumstantial evidence linking him to the crime.
Wilson's proposed impeachment of Humphrey, even
if allowed under the rules of evidence, would not
have detracted from this proof. Wilson argues that he
could have used evidence of the Humphrey-Gilliece
affair to impeach Humphrey. Appellant Br. at 96-107.
However, evidence of the Humphrey-Gilliece affair
would likely not have been proper grounds to
impeach Humphrey. There is no proof Gilliece
intervened on Humphrey's behalf or that Humphrey
used the relationship to win favorable treatment from
the prosecutor or Judge Lape. Therefore, the
Humphrey-Gilliece relationship was irrelevant to any
bias Humphrey may have had in her testimony that
Wilson had been the one who killed the victim. While
cross-examination to reveal possible biases is a
protected right, see Davis v. Alaska,

415 U.S. 308,

316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), raising
irrelevant theories of bias is not. Trial courts retain
discretion to impose limits on cross-examination
based on concerns about harassment, prejudice,
confusion of issues, “or interrogation that is repetitive
or only marginally relevant.” Boggs v. Collins,

226

F.3d 728, 736 (6th Cir.2000); see Delaware v. Van
Arsdall,

475 U.S. 673, 679, 106 S.Ct. 1431, 89

L.Ed.2d 674 (1986). Moreover, the impact of
undisclosed evidence on Wilson's trial preparations is
irrelevant to materiality under Brady; only the effect
on the trial's outcome matters. See United States v.
Presser,

844 F.2d 1275, 1282 (6th Cir.1988)

(discussing United States v. Agurs,

427 U.S. 97, 112

n. 20, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). Wilson
had ample opportunity and motive to cross-examine
Humphrey without knowing about the affair.
Humphrey was facing the death penalty and
attempted to minimize her role in the crimes by
shifting blame for the murder to Wilson. Given the
opportunity to cross-examine Humphrey, Wilson
declined. Finally, we note that, to the extent it is
relevant to a credibility determination, Humphrey
admitted on direct examination that she had been a
prostitute.
[30]

[31]

Thus, Wilson's claims stemming from the
Humphrey-Gilliece relationship fail. For similar
reasons, the district court did not err in denying
Wilson an evidentiary hearing regarding the
Humphrey-Gilliece relationship. Wilson cannot be
held to the stringent standards of 28 U.S.C. § 2254(e)
(2), because the Humphrey-Gilliece relationship
came to light well after Wilson's post-conviction
proceedings had concluded. See Williams v. Taylor

,
529 U.S. 420, 434-35, 120 S.Ct. 1479, 146 L.Ed.2d
435 (2000). However, “the fact that a petitioner is not
disqualified from receiving an evidentiary hearing
under § 2254(e)(2) does not entitle him to one.” Ivory
v. Jackson

, 509 F.3d 284 (6th Cir.2007)

. In this case,
Wilson is not entitled to an evidentiary hearing
because, as discussed above, he has not alleged
sufficient grounds for release.
D. Brady Violations (Claim Nine)
Wilson alleges that the prosecution failed to disclose
evidence concerning Maloney, the jailhouse
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515 F.3d 682
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informant who testified against Wilson at trial.
Wilson moved to declare Maloney an indispensable
witness, meaning that Maloney would have to submit
to an interview with defense counsel, and Wilson
argues that the prosecution's objections to those
motions denied him his right to develop impeaching
evidence about Maloney. Wilson also claims that the
prosecution should have turned over potentially
exculpatory evidence gathered by the FBI. We hold
that these claims are meritless.
[32] Wilson raised his claim that the prosecution
failed to disclose evidence about Maloney on direct
appeal. The Kentucky Supreme Court noted that
Wilson had requested a long list of information to
attack Maloney's credibility, including:
all correctional institution files of the witness; any
organizations to which Maloney had ever
belonged; any information Maloney may have
provided to any governmental authority in any
jurisdiction in any case; any prior instances of
Maloney ever lying or exaggerating; any inmates
the Commonwealth may have interviewed at the
jail to determine whether they spoke with Wilson;
and every case in which the Commonwealth used
informants.
Wilson,

836 S.W.2d at 885.

The Kentucky Supreme
Court held that Wilson's request was “clearly
excessive,” that the prosecutor had followed
Kentucky disclosure law, and that Wilson had failed
to show how the information could have affected the
outcome of his case. Ibid. (citing Agurs,

427 U.S. at

97, 96 S.Ct. 2392). The district court concluded that
the Kentucky Supreme Court's decision was neither
contrary to nor an unreasonable application of
Supreme Court precedent under Brady.
[33] We agree and affirm. A Brady violation occurs
when the evidence at issue is favorable to the
accused, the evidence was suppressed by the State,
and prejudice resulted. See Strickler v. Greene,

527

U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286
(1999). The Kentucky Supreme Court's analysis
comported with Supreme Court precedent. The
prosecutor provided the criminal charges that were
pending against Maloney, the prosecutor's
communications with the Ohio prosecutor's office
concerning Maloney, the fact that Maloney was on
federal parole, Maloney's disclosures to the
prosecutor, and the fact that Maloney provided
Wilson with money and cigarettes while they were
incarcerated. At trial, the prosecutor established in
direct examination that Maloney was a convicted
felon and reviewed the criminal charges pending
against Maloney in Kentucky and Ohio. The
prosecutor also inquired as to whether Maloney had
received any favorable treatment in return for his
testimony. In light of the information the prosecutor
disclosed and the conduct of the trial, we hold that
Wilson has not shown a reasonable probability that
the his trial was prejudiced because the prosecutor
did not comply with the entirety of Wilson's
exceptionally broad discovery request.
Wilson raised the second part of his claim, that the
prosecution should have turned over exculpatory
information gathered by the FBI, in his state post-
conviction action. The trial court denied the petition,
and the Kentucky Supreme Court affirmed the
decision without mentioning the FBI claim. The
district court determined that Wilson knew or should
have *704 known about the FBI's involvement in the
case because FBI agents testified at trial. The court
found that Wilson had procedurally defaulted this
portion of his claim because he did not raise it on
direct appeal, that he could no longer bring the claim
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515 F.3d 682
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in state court under Kentucky res judicata principles,
and that he could not meet the “cause and prejudice”
standard to excuse his default. The district court also
concluded that Wilson was not entitled to an
evidentiary hearing.
We agree and affirm. Regarding the FBI information,
Wilson procedurally defaulted because he failed to
present the grounds of his claim to the state courts.
See 28 U.S.C. § 2254(b); Gray v. Netherland,

518

U.S. 152, 161-62, 116 S.Ct. 2074, 135 L.Ed.2d 457
(1996). Unless Wilson can show cause to excuse his
default and actual prejudice to his case at trial or on
appeal, he may obtain habeas review only in the
extraordinary case that he can show a fundamental
miscarriage of justice has occurred, for example, by
showing a constitutional violation has resulted in
conviction of one who is actually innocent. See
Coleman v. Thompson,

501 U.S. 722, 750, 111 S.Ct.

2546, 115 L.Ed.2d 640 (1991); Murray v. Carrier,
477 U.S. 478, 495-96, 106 S.Ct. 2639, 91 L.Ed.2d
397 (1986). Wilson failed to raise his claim on direct
appeal and is barred under Kentucky Rule of
Criminal Procedure 11.42 from raising it in post-
conviction proceedings. In addition, a three-year
statute of limitations bars Wilson from raising the
claim. See Ky. Rule Crim. P. 11.42(10). The time
limit applies here, and Wilson does not qualify for
any of the statutory exceptions. Although ineffective
assistance of appellate counsel may constitute cause
for procedural default, see Murray,

477 U.S. at 492,

106 S.Ct. 2678, the ineffective assistance claim itself
can be procedurally defaulted, see Edwards v.
Carpenter,

529 U.S. 446, 453, 120 S.Ct. 1587, 146

L.Ed.2d 518 (2000). Here, Wilson never raised his
claim of ineffective assistance of appellate counsel in
state court. He raised the claim in his federal habeas
petition but did not include it as grounds for his
appellate counsel's failure to raise the Brady claim.
Accordingly, Wilson's claim is barred.
E. Denial of Separate Trials (Claim Fourteen)
[34] Wilson alleges that the trial court denied him a
fair trial and due process rights by failing to grant
him a separate trial from his co-defendant Brenda
Humphrey. He argues that their defenses were
antagonistic, that there was a stark difference
between Humphrey's allegedly vigorous defense and
his allegedly deficient defense, and that Humphrey's
statements to prosecution witnesses were unduly
prejudicial to him. He also argues that evidence of
Humphrey's purchases using the victim's credit card
was admissible against her but unduly prejudicial as
to him.
[35]

[36]

The Kentucky Supreme Court held on direct
appeal that, under Kentucky law, a defendant is not
entitled to severance unless he shows prior to trial
that joinder would be prejudicial. See Wilson,

836

S.W.2d at 886-87. A Kentucky court will not “reverse
a conviction for failure to grant separate trials unless
it is clearly convinced that prejudice occurred and
that the likelihood of prejudice was so clearly
demonstrated to the trial judge as to make his failure
to grant severance an abuse of discretion.” Id.
at 887.

Accordingly, a “defendant must show that
antagonism prevented a jury from being able to
separate and treat distinctively evidence that is
relevant to each particular defendant at trial and that
the antagonism between codefendants will mislead or
confuse the jury.” Ibid. The court noted that Wilson
*705 and Humphrey had both admitted their crimes
to others, and that the evidence presented against
Wilson during the guilt phase was largely the same as
the evidence against Humphrey. Ibid. The court also
observed that Humphrey's presence at trial may have
reminded the jurors that Wilson was not solely
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515 F.3d 682
(Cite as: 515 F.3d 682)
responsible for the crime. Ibid.
We agree with the district court that the Kentucky
Supreme Court decision is neither contrary to nor an
unreasonable application of United States Supreme
Court precedent. The Supreme Court has recognized
that states have significant interests in conducting
joint trials. See Buchanan v. Kentucky,

483 U.S. 402,

417-19, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987). The
Supreme Court has also held that “an error involving
misjoinder ‘affects substantial rights' and requires
reversal only if the misjoinder results in actual
prejudice because it ‘had substantial and injurious
effect or influence in determining the jury's verdict.’ ”
United States v. Lane,

474 U.S. 438, 449, 106 S.Ct.

725, 88 L.Ed.2d 814 (1986) (quoting Kotteakos v.
United States,

328 U.S. 750, 776, 66 S.Ct. 1239, 90

L.Ed. 1557 (1946)). Since much of the damaging
testimony introduced at trial would have been
admissible even if Wilson had been tried alone, he
cannot meet that standard. Moreover, Wilson
declined to cross-examine Humphrey to minimize the
impact of her testimony blaming him for the murder.
We hold that the Kentucky Supreme Court's analysis
comported with Supreme Court precedent and affirm
the district court.
F. Admission of Hair-Matching Evidence (Claim
Sixteen)
[37] At trial, an expert witness testified that hairs
found in the victim's car were similar to samples of
Wilson's head and pubic hairs. Wilson argues that the
state court's admission of hair-matching evidence
constitutes constitutional error because the evidence
was unduly prejudicial because of its unreliability
and the danger that the jury would erroneously give it
more weight than it deserved. Appellant's Br. at 135.
Wilson sought to compel DNA testing of the hairs
that were found in the victim's car, and the district
court granted that motion. However, the
Commonwealth could not find the hairs, and no DNA
testing occurred. Wilson raised the claim on direct
appeal, and the Kentucky Supreme Court found that
Wilson's argument went to the weight of the
evidence, not its admissibility, and concluded that the
testimony was properly introduced. See Wilson,

836

S.W.2d at 890. The district court held that no
Supreme Court precedent showed a constitutional
violation based on use of hair-matching evidence and
Wilson was not entitled to an evidentiary hearing,
especially in light of the other evidence of guilt.
[38]

[39]

We affirm. A federal court cannot issue a
writ of habeas corpus “on the basis of a perceived
error of state law.” Pulley v. Harris,

465 U.S. 37, 41,

104 S.Ct. 871, 79 L.Ed.2d 29 (1984). More
specifically, a trial judge's decision concerning the
admission of evidence is a state law matter generally
not subject to habeas review. See Marshall v.
Lonberger,

459 U.S. 422, 438 n. 6, 103 S.Ct. 843, 74

L.Ed.2d 646 (1983) (“[T]he Due Process Clause does
not permit the federal courts to engage in a finely
tuned review of the wisdom of state evidentiary
rules.”). Wilson has not shown that the admission of
the expert testimony denied him a fair trial. The
witness testified that head hairs similar to Wilson's
were found on the back of the passenger side front
seat of the victim's car. He also stated that pubic hairs
similar to hair from Wilson were found in the area of
the passenger front seat, on the *706 floorboard of
the front seat, and in the hatchback area behind the
rear seat. Hagedorn cross-examined the witness on
Wilson's behalf, and the witness conceded that the
hairs could have come from somebody else. Absent
Supreme Court precedent showing a constitutional
violation based on the use of hair-matching evidence,
we hold that Wilson has not demonstrated that the
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515 F.3d 682
(Cite as: 515 F.3d 682)
admission of the evidence denied him a fair trial. Cf.
Buie v. McAdory,

341 F.3d 623, 624-25 (7th Cir.2003)

(holding that no constitutional error resulted from an
expert's testimony that “within a reasonable degree of
scientific certainty” hair-matching evidence
inculpated the defendant and noting that the
Constitution guarantees only the right to test evidence
and does not guarantee that experts “must be right ”).
Even if the hair-matching evidence is unreliable as
Wilson alleges and was excluded, the outcome of the
trial would have been unaffected.
G. Ineffective Assistance of Appellate Counsel
(Claims Twenty-One and Twenty-Two)
Wilson alleges that he received ineffective assistance
of counsel on direct appeal because his appellate
attorneys had a conflict of interest that prevented
them from scrutinizing the actions of his KDPA trial
attorneys and other attorneys who were not counsel
of record. Appellant's Br. at 68-70. He also complains
that, because his direct appeal counsel raised the
issue of his trial counsels' ineffectiveness, the law of
the case doctrine barred him from raising that claim
in his state post-conviction motion to vacate.
Appellant's Br. at 64-66. In a related claim, Wilson
alleges that he had no state-court forum in which to
raise a claim of ineffective assistance of appellate
counsel. Appellant's Br. at 70-71. We affirm the
district court's denial of these claims.
These claims were first raised in the district court,
which held an evidentiary hearing. Gail Robinson is
an attorney who worked for KDPA for many years
and is married to Kevin McNally, who was Wilson's
counsel of record until he withdrew and Hagedorn
was appointed. At the evidentiary hearing, she
testified that, although she was not Wilson's counsel
of record on direct appeal, she wrote a majority of
Wilson's appellate brief. Robinson stated that, in
retrospect, it was a mistake for her to have raised the
ineffective assistance of trial counsel claim on direct
appeal because it operated to bar Wilson from raising
the claim “in a better and more full manner in a later
[state post-conviction] proceeding.” Ira Mickenberg
also testified at the evidentiary hearing. After
reviewing the case file and opinions, Mickenberg
stated that it could never be effective assistance of
appellate counsel to raise an ineffective assistance of
trial counsel claim on direct appeal in Kentucky.
Mickenberg stated that it was always necessary to
develop facts outside the trial record in an ineffective
assistance of trial counsel claim.
Mickenberg also stated that Wilson's appellate
counsel should have raised Hagedorn's alleged
conflict of interest arising from Hagedorn's prior
representation of Maloney, the prosecution's main
witness. Mickenberg also testified that Wilson's
appellate counsel should have raised McNally's
interference with the trial as grounds for appeal.
Thus, Wilson argues that his appellate counsel failed
to raise specific issues on appeal.
[40]

[41]

[42]

[43]

To prevail on a claim of ineffective
assistance of counsel, petitioner must show both that
his counsel's performance was deficient and that the
deficiency resulted in prejudice. See Strickland,

466

U.S. at 687, 104 S.Ct. 2052. The district court's
findings of fact are reviewed for *707 clear error.
Combs v. Coyle,

205 F.3d 269, 277 (6th Cir.2000)

.
The performance and prejudice components of
Strickland present mixed questions of law and fact
and are reviewed de novo. Strickland,

466 U.S. at

698, 104 S.Ct. 2052. As noted above, counsel's
conduct is deficient if it falls below an objective
standard of reasonableness. To evaluate a claim of
ineffective assistance of appellate counsel, we assess
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
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515 F.3d 682
(Cite as: 515 F.3d 682)
the strength of the claim appellate counsel failed to
raise. “Counsel's failure to raise an issue on appeal
could only be ineffective assistance if there is a
reasonable probability that inclusion of the issue
would have changed the result of the appeal.”
McFarland v. Yukins,

356 F.3d 688, 699 (6th

Cir.2004). “If there is a reasonable probability that
[the defendant] would have prevailed on appeal had
the claim been raised, we can then consider whether
the claim's merit was so compelling that appellate
counsel's failure to raise it amounted to ineffective
assistance of appellate counsel.” Id.
at 700.

[44] The district court properly denied Wilson's claim
of ineffective assistance of appellate counsel. As the
district court noted, Wilson's claim that his appellate
counsel failed to raise meritorious issues must fail.
The failure to raise issues regarding Hagedorn's
alleged incompetence (absences, failure to cross-
examine witnesses, etc.) cannot constitute ineffective
assistance of appellate counsel because, as discussed
previously, see supra Part III.A-B, these issues would
not have changed the outcome. As discussed above,
the state courts found, and we agree, that Wilson
elected to proceed pro se. Therefore, any claims
regarding deficient trial counsel performance are
without merit, including claims alleging conflict of
interest because of Hagedorn's prior representation of
Maloney on theft charges. Wilson's decision to
proceed pro se also means that Wilson could not later
claim that his decision to follow McNally's advice
after McNally ceased to be counsel of record
constitutes a ground for appeal.
[45]

[46]

Wilson's claim about Robinson's decision to
include the ineffective assistance of trial counsel in
his direct appeal also fails. As the district court noted,
Wilson repeatedly questioned his trial counsel's
performance during the trial. Having made their
performance an issue, Wilson might have been
prevented from raising the issue in post-conviction
proceedings if he had not raised it on direct appeal.
See Gross v. Commonwealth,

648 S.W.2d 853, 857

(Ky.1983) (holding “that the proper procedure for a
defendant aggrieved by a judgment in a criminal case
is to directly appeal that judgment, stating every
ground of error which it is reasonable to expect that
he or his counsel is aware of when the appeal is
taken”). Moreover, Robinson's decision to raise the
claim on direct appeal did not prejudice Wilson
because the claim would not have been successful if
raised in an 11.42 post-conviction motion. As
discussed above, Wilson's ineffective assistance of
trial counsel claim would have failed because he had
chosen to proceed pro se.
[47] Wilson's claim that Robinson was conflicted
because her husband, McNally, had represented
Wilson before Hagedorn's appointment also fails.
Logically, Wilson cannot show ineffective assistance
by Robinson because she did not represent him. The
attorneys of record in Wilson's direct appeal were
David Bruck, Mario Conte, and Robert Carran. See
Wilson,

836 S.W.2d at 876.

Even assuming arguendo
that Robinson represented Wilson (in so far as the
attorneys of record outsourced the work of writing
Wilson's brief to Robinson), we agree with the
district court that Wilson has not shown that the
alleged conflict rendered Robinson's performance
objectively unreasonable. The district court found no
factual basis for concluding *708 that the alleged
conflict affected Robinson's work as ghost writer on
the brief, and we agree. Indeed, since Wilson had
proceeded pro se, Wilson's appellate counsel likely
did not raise the issue of McNally's alleged
interference with Hagedorn because there was no
attorney-client relationship between Wilson, on the
one hand, and Hagedorn and Foote, on the other, with
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515 F.3d 682
(Cite as: 515 F.3d 682)
which McNally could have interfered. Although
Wilson did not argue the point, we also hold that the
decision of Bruck, Conte, and Carran to outsource the
brief-writing work to Robinson was not deficient.
Robinson was an experienced capital defender, and
the decision to let her write the brief clearly meets the
objective standard of reasonableness required under
Strickland.
In a separate claim, Wilson argues that he was denied
a constitutional right to a state-court forum in which
to bring his claim of ineffective assistance of
appellate counsel. We agree with the district court's
dismissal of this claim. The United States Supreme
Court held that if a dismissal of an appeal by right
occurs because of the ineffectiveness of appellate
counsel, the defendant is entitled to a reinstatement of
his appeal. See Evitts v. Lucey,

469 U.S. 387, 105

S.Ct. 830, 83 L.Ed.2d 821 (1985). However, while
such ineffective assistance of appellate counsel is a
constitutional violation, the Supreme Court has not
required the states to provide a forum to litigate such
a claim. Rather, in Evitts, the Court remanded with a
direction to allow the appeal to proceed. Evitts
ensures that a defendant is not denied a hearing of his
appeal of right due to ineffective assistance; it does
not state that defendants have a constitutional right to
pursue ineffective assistance of appellate counsel
claims in other circumstances.
[48]

[49]

[50]

In Kentucky, a claimant is barred from
asserting ineffective assistance of appellate counsel in
an 11.42 post-conviction motion and should instead
seek to reopen the original appeal. See Hicks v.
Commonwealth,

825 S.W.2d 280 (Ky.1992)

;
Commonwealth v. Wine,

694 S.W.2d 689, 694-95

(Ky.1985). Thus, when an appeal is dismissed or
defaulted due to ineffective assistance of appellate
counsel, a defendant may move to reinstate the
appeal in the original court of appeal. See, e.g., Wine,
694 S.W.2d at 695. But where, as in the instant case,
the appeal has already been heard by the proper
court, the case will not be reexamined by the
appellate court, and the ineffective assistance claim
may not be reviewed under an 11.42 motion. Hicks,
825 S.W.2d at 281. Evitts does not compel a different
result. Since no other Supreme Court precedent has
expanded the Evitts rule to require a forum for
ineffective assistance of appellate counsel claims
when the appellant's case was actually heard and
decided, Wilson's claim must fail.
IV
Therefore, for the reasons set out above, we AFFIRM
the district court's denial of the writ of habeas corpus.
C.A.6 (Ky.),2008.
Wilson v. Parker
515 F.3d 682
END OF DOCUMENT
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

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