Hodge v. Haeberlin

• Decision Date: 04 September 2009
• Docket Number: No. 06-6027.,06-6027.
• Citation: 579 F.3d 627
• Parties: Benny Lee HODGE, Petitioner-Appellant, v. Glenn HAEBERLIN, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

579 F.3d 627

Benny Lee HODGE, Petitioner-Appellant, v. Glenn HAEBERLIN, Warden, Respondent-Appellee.

No. 06-6027.

United States Court of Appeals, Sixth Circuit.

Argued: October 21, 2008.

Decided and Filed: September 4, 2009.

ARGUED:

Laurence E. Komp, Law Office, Manchester, Missouri, for Appellant. Julie Scott Jernigan, Office of the Kentucky Attorney General, Frankfort, Kentucky, for Appellee.

ON BRIEF:

Laurence E. Komp, Law Office, Manchester, Missouri, Armand I. Judah, Judah-McLeod, Louisville, Kentucky, for Appellant. Ian G. Sonego, Office of the Kentucky Attorney General, Frankfort, Kentucky, for Appellee.

Before: MARTIN, ROGERS, and COOK, Circuit Judges.

ROGERS, J., delivered the opinion of the court, in which COOK, J., joined. MARTIN, J. (pp. 651-56), delivered a separate dissenting opinion.

OPINION

ROGERS, Circuit Judge.

The district court properly denied habeas corpus in this case because petitioner Benny Lee Hodge has not shown that his trial counsel rendered ineffective assistance. A jury convicted Hodge and sentenced him to death for his role in a 1985 double murder. Hodge advances numerous claims of ineffective assistance of counsel, including a claim that counsel prevented Hodge from testifying on his own behalf and that counsel ineffectively cross-examined the prosecution's key witness. Because the record does not show that any alleged mistake by Hodge's counsel meets the standards for deficient performance and prejudice established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Hodge is not entitled to habeas relief.

I. Background

Edwin and Bessie Morris were murdered in their home in Jackson County, Kentucky, on the night of June 16, 1985. The elderly couple's adult son discovered their bodies the next morning. A Jackson County grand jury indicted petitioner Benny Lee Hodge and his co-defendants Donald Bartley and Roger Dale Epperson for robbery, burglary, and murder. After a change of venue to Laurel County, Hodge was tried in 1987. Donald Bartley testified against Hodge at trial. According to Bartley, he, Epperson, and Hodge made extensive plans to carry out the robbery. Among other things, they rented a campsite to serve as a staging ground, purchased gloves, and borrowed a van registered under someone else's name to shield their identities. Bartley testified that on the night of the murders, he remained in the van as a lookout while Hodge and Epperson entered the Morris home. From Bartley's vantage point in the van, he could observe some of the events that took place in the house through the window. Bartley testified that he observed the other two men enter the house, draw their weapons, and knock Mr. Morris to the floor. Although Bartley was unable to see the remainder of the events, he heard several shots before Hodge and Epperson emerged from the house with money, Mr. Morris's handgun, and other valuables. Bartley testified that after the murders, the men wiped down the three guns (Hodge's, Epperson's, and Mr. Morris's) and threw them in the river. These guns were never recovered, despite Bartley's participation in the search. Bartley also testified that the men returned to the campsite and burned several incriminating items, including Hodge's blood-stained clothes. Sherry Hamilton, Hodge's then wife, did not testify at trial but spoke openly with the media claiming that Hodge was not involved with the murders.

The jury convicted Hodge of all counts and sentenced him to death. The Supreme Court of Kentucky later vacated this conviction because the trial court had not conducted an individualized voir dire on the issue of pre-trial publicity.

The Commonwealth re-tried Hodge in 1996. Bartley refused to cooperate in the retrial. After Bartley refused to testify, the judge declared Bartley unavailable and allowed the Commonwealth to read Bartley's previous testimony to the jury. Hodge's counsel objected on the ground that the previous testimony included a statement that Bartley had not received a deal whereas Bartley had since filed a verified statement in his own post-conviction action outlining a favorable agreement he had made with the Commonwealth in return for his testimony against Hodge.

In addition to the previous testimony of Bartley, the Commonwealth introduced the testimony of Hodge's ex-wife Sherry Hamilton. Hamilton related several instances in which Hodge allegedly told her that he committed the murders. Specifically, she testified that Hodge told her that he and Bartley entered the Morrises' home in order to rob them, that Mr. Morris went for a gun on the top of the refrigerator, and that Hodge and Mr. Morris got into a scuffle that ended with Hodge's shooting Mr. Morris. Thereafter, Bartley took Mrs. Morris into the bedroom and shot her. Hodge asked if Mrs. Morris was dead and, when Bartley said that he thought so, Hodge returned to the bedroom and shot Mrs. Morris again to make sure she was dead. Hamilton admitted that she had stated many times in the past that Hodge had not committed the murders. She also admitted to being an accomplished liar. She admitted to stealing from her employer, lying to the police, and participating in an immigration scam. She also admitted to bragging about her ability to lie effectively by mixing a bit of truth into a fabricated account. She asserted that although in the past, when she was romantically involved with Hodge, she had lied about Hodge's participation, she was now coming forward with the truth in the interest of justice.

The Commonwealth also presented testimony from the victim's son, Bobby Morris. Morris testified about his acquaintance with Roger Epperson in the months leading up to the murders, about his father's well-known practice of keeping large sums of cash in the house, about the layout of his parents' home, and about other matters that set the context for the crimes committed against his parents. In the course of his testimony, Morris described some details of his father's appearance on the morning he was discovered dead. Although Morris's testimony was emotional at times, Hodge's counsel did not object to the testimony.

Several of the defense's witnesses and documents are also relevant to this appeal. The defense introduced the testimony of forensic serologist Ed Taylor, who testified that none of the biological evidence collected at the scene was ever linked to Hodge. Taylor testified on cross-examination that he did not have a hair or blood sample from Hodge with which to make comparisons. The defense also introduced the testimony of fingerprint expert Sara Skees, who testified that she analyzed twenty-two finger and palm prints lifted from the crime scene. She testified that multiple prints were linked to the Morrises and that others were never identified. None of the prints were linked to Hodge or his co-defendants. The defense also introduced the video deposition of Tammy Gentry, who testified that while she and Bartley were housed in the same prison facility, Bartley told her that Bartley killed the Morrises, that Hodge and Epperson were not involved, and that he was making a favorable plea bargain with the government. The defense also introduced a certified court document in which the Commonwealth Attorney recommended a favorable probation arrangement for Bartley on several burglary charges to which Bartley pled guilty. The stated reason for the recommendation of leniency was that Bartley significantly aided the Commonwealth in the solution of several crimes and the prosecution of the perpetrators.

The defense attempted unsuccessfully to introduce the testimony of Elizabeth Shaw, who served as defense counsel at Hodge's first trial. The trial court disallowed Shaw's testimony as double hearsay. Shaw then testified by avowal that Hamilton previously told her that Bartley had taken credit for both murders in the days immediately following the crimes. Additionally, the defense was unable to secure the testimony of Darcy O'Brien, an author who conducted extensive interviews with Hamilton while writing a book about another murder Hodge had committed. That murder, which occurred during the same crime spree as the Morris murders, was tried in separate proceedings and was not known to the jury until the penalty stage. At the penalty stage, the defense was unable to secure the testimony of Ann-Marie Charvat, a mitigation expert who prepared the penalty portion of the defense's case and who was unable to attend the trial because of a high-risk pregnancy. The defense nonetheless presented thirteen witnesses in mitigation, including several of Hodge's immediate family members, his eighth grade teacher and a judge who had dealt with complaints of sexual abuse at a juvenile institution where Hodge had been held as a teenager.

The jury ultimately convicted Hodge of first degree robbery, first degree burglary, and two counts of murder. The jury sentenced him to terms of imprisonment for the robbery and burglary offenses and to death for each count of murder. The Supreme Court of Kentucky affirmed Hodge's conviction and sentence on direct review. Hodge v. Kentucky, 17 S.W.3d 824 (Ky.2000) [hereinafter Hodge I]. The United States Supreme Court denied certiorari. Hodge v. Kentucky, 531 U.S. 1018, 121 S.Ct. 581, 148 L.Ed.2d 498 (2000). Hodge pursued state collateral review under Kentucky Rule of Criminal Procedure 11.42. The state supreme court ultimately affirmed the denial of relief. Hodge v. Kentucky, 116 S.W.3d 463 (Ky.2003), overruled by Leonard v. Kentucky, 279 S.W.3d 151, 159 (Ky.2009) [hereinafter Hodge II]. Hodge again sought and was denied certiorari in the United States Supreme Court. Hodge v. Kentucky, 541 U.S. 911, 124 S.Ct. 1619, 158 L.Ed.2d 258 (2004). Hodge then sought habeas relief in federal district court, asserting thirty-eight claims of error. The district court denied relief, but certified Hodge's claims of ineffective assistance of counsel for appeal. This...