Virginia Caudill v. Janet Conover , 881 F.3d 454 ( 2018 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0023p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
VIRGINIA S. CAUDILL, ┐
Petitioner-Appellant, │
│
> No. 14-5418
v. │
│
│
JANET CONOVER, Warden, │
Respondent-Appellee. │
┘
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 5:10-cv-00084—Danny C. Reeves, District Judge.
Argued: November 29, 2017
Decided and Filed: February 2, 2018
Before: MOORE, SUTTON, and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ARGUED: Dennis J. Burke, DEPARTMENT OF PUBLIC ADVOCACY, LaGrange,
Kentucky, for Appellant. Matthew R. Krygiel, OFFICE OF THE KENTUCKY ATTORNEY
GENERAL, Frankfort, Kentucky, for Appellee. ON BRIEF: Dennis J. Burke, Euva Blandford,
Krista A. Dolan, DEPARTMENT OF PUBLIC ADVOCACY, LaGrange, Kentucky, for
Appellant. Matthew R. Krygiel, OFFICE OF THE KENTUCKY ATTORNEY GENERAL,
Frankfort, Kentucky, for Appellee.
SUTTON, J., delivered the opinion of the court in which KETHLEDGE, J., joined, and
MOORE, J., joined in part. MOORE, J. (pp. 15–38), delivered a separate opinion concurring in
part and dissenting in part.
No. 14-5418 Caudill v. Conover Page 2
_________________
OPINION
_________________
SUTTON, Circuit Judge. Virginia Caudill and Jonathon Goforth broke into Lonetta
White’s home and beat her to death with a hammer when she refused to give them money to buy
drugs. After ransacking her home for valuables, they wrapped her body in a carpet and loaded it
in the trunk of her own car. They drove the car to an empty field, doused it with gasoline, and
set it on fire. An autopsy revealed that she died from massive head injuries, including blows that
caved in parts of her skull.
A Kentucky jury convicted Caudill and Goforth in a joint trial of murder, robbery,
burglary, arson, and tampering with evidence. After a mitigation hearing, the same jury
sentenced them to die for their crimes. The Kentucky Supreme Court affirmed Caudill’s
convictions and sentence and rejected her requests for collateral relief. Caudill v.
Commonwealth, 120 S.W.3d 635 (Ky. 2003); Caudill v. Commonwealth, No. 2006-SC-000457,
2009 WL 1110398 (Ky. Apr. 23, 2009). Caudill filed a federal petition for a writ of habeas
corpus, which the district court denied. Caudill v. Conover, No. 5:10-84, 2014 WL 349300(E.D. Ky. Jan. 31, 2014).
We granted a certificate of appealability to consider two questions: (1) whether the state
courts reasonably rejected her Batson claim, and (2) whether her lawyers provided ineffective
assistance by choosing not to call additional witnesses during the penalty phase. Neither claim
has merit, and accordingly we must affirm.
I.
Batson v. Kentucky, 476 U.S. 79 (1986), sets forth a three-step process for assessing
whether a peremptory challenge violates the Equal Protection Clause of the Fourteenth
Amendment. Step one: the defendant must make a prima facie showing of discrimination. Step
two: the prosecutor must offer a nondiscriminatory reason for the strike. Step three: the trial
court must “determine if the defendant has established purposeful discrimination.” Id. at 96–98.
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Caudill’s lawyer raised a Batson challenge toward the end of the state court’s jury
selection. Here is the key exchange:
[DEFENSE COUNSEL]: I guess we would have a motion evaluating, uh, I
believe there were nine strikes for the Commonwealth. They struck eight males.
I believe that, uh, there’s uh—shows a clear bias against, uh, uh, men in this case,
possibly because of the woman on trial here. And I just feel that, uh, it rises to the
same level as a Batson issue—
[PROSECUTOR]: Are you saying men are a protected class? Is that what you’re
saying?
[DEFENSE COUNSEL]: Yes.
[THE COURT]: White males?
[DEFENSE COUNSEL]: Well, I don’t know if they’re—
[PROSECUTOR]: That’s news to the rest of us.
[DEFENSE COUNSEL]: Well, we would just—
[THE COURT]: Never had men. The only people excluded were white males.
[DEFENSE COUNSEL]: Look, well, we just for the record make that motion.
[THE COURT]: I understand.
DVD A-4 at 09:12:33–09:13:23.
In response, the prosecutor gave the following reasons for striking the eight potential
jurors. Robert Feezor opposed the death penalty. Nicholas Edwards had only a grade school
education and did not “underst[an]d what was going on.” Shannon Patterson had relatives in
prison and serious hesitations about the death penalty. James Franke seemed “uncomfortable”
with the death penalty and came off as “a little strange.” Robert Biene hated the police and the
judicial system. Robert Keston did not like the death penalty and was “practically a blood
brother” of Caudill’s lawyer. Gary Lloyd said that he would impose the death penalty only in
rare circumstances. And the prosecution doubted that they could persuade William Case of the
defendants’ guilt or persuade him to impose the death penalty. Id. at 09:13:23–09:16:54.
After listening to these explanations, the trial court found no discrimination afoot. “[I]f
the appellate courts for whatever magical reason perceive white males to be a protected class, I
think these are nondiscriminatory reasons that would allow them to be struck.” Id. at 09:16:54–
09:17:15. The defense neither objected to the substance of the court’s ruling nor asked for an
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opportunity to show that the prosecutor’s explanations did not add up or otherwise amounted to a
smokescreen for discrimination.
On direct appeal, the Kentucky Supreme Court held that “[t]he trial judge found all of
[the prosecutor’s] reasons to be race-neutral and we are unable to conclude that his finding in
that regard was clearly erroneous.” Caudill, 120 S.W.3d at 657.
The parties agree that the Kentucky Supreme Court decided Caudill’s Batson claim on
the merits. And so do we. That means we may grant Caudill’s petition only if the state court’s
rejection of this claim “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,” or “was
based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d).
In trying to meet this standard, Caudill focuses on the trial court’s handling of Batson’s
third step. At that stage, she points out, Batson requires courts to undertake “a sensitive inquiry
into such circumstantial and direct evidence of intent as may be available,” 476 U.S. at 93, and
the trial court’s explanation, she elaborates, was neither sensitive nor careful, as it took less than
three seconds and gave defense counsel little, if any, chance to respond. Although the trial court
did not use a model method for resolving the Batson claim, Caudill’s argument nonetheless fails.
We need not decide whether the U.S. Supreme Court has “clearly established” that
Batson applies in this setting. Either way, Caudill’s claim fails because she makes too much of
the “sensitive” inquiry language in Batson, at least in the context of a habeas claim. The
Supreme Court has never directed trial courts to make detailed findings or to solicit the defense
attorney’s views before ruling on a Batson motion. Batson itself “decline[d] . . . to formulate
particular procedures to be followed” beyond the three-step framework. 476 U.S. at 99. On
reflection, that is not surprising. Some Batson claims will be stronger than others. And some
claims thus will deserve more process or more consideration or more argument than others. The
amount of such deliberation will invariably turn on the circumstances of each case. Id. at 97.
The more flexible a standard, as this one surely is, the more difficult it will be to show an
unreasonable violation of it. Yarborough v. Alvarado, 541 U.S. 653, 664 (2004).
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The Kentucky Supreme Court did not unreasonably apply Batson here. Jury selection
lasted several days. The state court judge was there the entire time. He had ample opportunity to
observe the demeanor of the jurors and hear their answers. He listened to the prosecutor’s
questions during voir dire and watched the strikes. By the time he entertained Caudill’s Batson
challenge, he had plenty to go on in deciding how to respond. He also had the prosecutor’s race-
neutral explanations to consider. It thus is inaccurate, and unfair to the state judge, to say that he
thought about the Batson claim for just “three seconds.” Appellant’s Br. 25. He had ample time
to think about and to gauge this claim throughout this process. Yes, the state court would have
done well (and would have done better) to explain more fully why the prosecutor’s explanations
convinced him that no discrimination of any sort was at play. But his ruling did not violate any
clearly established law.
Caudill insists that the nature of some of the prosecutor’s explanations made it impossible
for the trial court to evaluate the prosecutor’s credibility so quickly. She points out that the
prosecutor struck Edwards because he had a “grade school education.” Appellant’s Br. 27.
Because Edwards never discussed his education at voir dire, the only way for the trial judge to
confirm that explanation was to look at Edwards’ juror questionnaire. That he didn’t do so, she
says, suggests that he abdicated his duties under step three of the Batson inquiry.
But the prosecutor struck Edwards for another reason too: The potential juror did not
“underst[an]d what was going on.” The judge could have credited that explanation. And
reasonably so: Edwards initially told the prosecutor that he could impose the death penalty.
Then, when questioned by defense counsel, he claimed to be against it. Then, when the
prosecutor on redirect noted his inconsistent answers, Edwards responded incoherently. After
the prosecutor asked him to describe circumstances that would warrant the death penalty,
Edwards responded: “Um, it means just like whatever the crime is, I mean, you know. Like if
it’s a—I don’t know. I can’t explain.” R. 47-3 at 14. Through it all, the prosecutor and the
judge at any rate were right: Caudill concedes that Edwards indeed had just a grade-school
education. Oral Arg. Tr. 19:20–19:29.
Caudill adds that the prosecutor exaggerated in explaining why he struck Keston and
Lloyd. She notes that Keston was not actually a “blood brother” of one of Caudill’s attorneys.
No. 14-5418 Caudill v. Conover Page 6
Appellant’s Br. 30. And Lloyd never said that he would “very rarely” impose the death penalty.
Id. at 31. The judge’s failure to catch these overstatements shows that he failed to conduct a
proper Batson inquiry, she claims.
But that is an overstatement of its own. The prosecutor gave a second reason for striking
Keston, namely that he generally did not approve of the death penalty. That’s what Keston said
at voir dire: “in most circumstances . . . I wouldn’t support [the death penalty].” R. 47-2 at 33.
True enough, Lloyd never said he would “very rarely” impose the death penalty. But he did say
that he “d[idn’t] know” how he felt about the death penalty, that it would be “more difficult” for
him to impose it, and that he was concerned about “people on death row who had been found
innocent of the crime they were there for.” R. 47-3 at 5–6. The prosecutor’s failure to recall
Lloyd’s exact words does not show that the substance of his objection was false.
The trial court, to repeat, would have done well to say more in explaining why the
prosecutor’s strikes were not discriminatory. But the Supreme Court has never clearly
established a more rigorous procedure at this stage of the Batson inquiry. And the Kentucky
Supreme Court did not unreasonably apply what the Supreme Court has required in concluding
that the trial court complied with Batson. The district court correctly rejected this claim.
II.
Caudill claims that her lawyers provided ineffective assistance at the penalty stage of her
trial by failing to interview and call more witnesses. To prevail on this claim, Caudill must do
two things. She must establish a Sixth (and Fourteenth) Amendment violation—that her lawyers
performed well below the norm of competence in the profession and that this failing prejudiced
her case. Strickland v. Washington, 466 U.S. 668, 687 (1984). And she must satisfy AEDPA—
by showing that any rulings by the state courts on the merits of this claim were unreasonable.
28 U.S.C. § 2254(d).
A.
Caudill’s lawyer called seven witnesses at the penalty phase, including her mother, her
only brother, her only sister, and her daughter. The jury learned from them that Caudill’s father
No. 14-5418 Caudill v. Conover Page 7
was an alcoholic who physically and emotionally abused the family. R. 47-10 at 37 (testimony
of mother); id. at 47 (brother); id. at 50 (sister). They learned that Caudill and her siblings were
“scared to death” of their father and would sometimes hide at their grandparents’ house. Id. at
37 (mother). They heard that Caudill was bullied because of her weight, id. at 38 (mother); id. at
50 (sister), and that Caudill had serious problems with drug and alcohol addiction, id. at 38–39
(mother); id. at 46 (brother); id. at 52 (sister); id. at 54 (daughter). And they heard that, when
Caudill was sober, she was “loving and kind,” id. at 47 (brother), “the most wonderful daughter,”
id. at 39, and a “great” mother, id. at 54. Some witnesses broke down in tears as they testified,
and above all they conveyed the toll that physical abuse and substance abuse had taken on
Caudill and the impact they had had on her conduct. Id. at 47–48.
Dr. Peter Schilling, a psychologist, provided the most detailed testimony. The emotional
and physical abuse Caudill suffered as a child at the hands of her father, he explained, distorted
the way she interacted with men. Id. at 95. She sought out “abusive, dominating-type” men and
had a submissive personality. Id.
As evidence, Dr. Schilling provided the jury with detailed information about Caudill’s
past relationships. Caudill married her first husband when she was just a teenager, and she was
so submissive that she “allowed the man to lead her out of the state.” Id. at 96. That marriage
ended when the man threatened to kill her. Id.
None of her other relationships fared much better. Dr. Schilling testified that Caudill had
been “hit in the face by men . . . more times than she c[ould] remember.” Id. at 97. Her second
husband once “took a pipe and busted out the window of her . . . vehicle.” Id. at 96. Thomas
Garrett, one of her boyfriends, “broke her wrist, nose and jaw at various times,” “repeatedly
struck her face,” and was “so dysfunctional” that he eventually killed himself. Id. at 97.
Another boyfriend knocked her out cold. Id. At one point, a businessman coaxed Caudill into
having sex with clients in exchange for money and access to a condo. Id. at 97–98.
What is more, personality tests confirmed that Caudill was “about as submissive as you
can get.” Id. at 107. Other tests suggested that Caudill had a learning disability, extensive brain
damage from head trauma and drug abuse, or all of the above. Id. at 101–02. And while Caudill
No. 14-5418 Caudill v. Conover Page 8
had a normal IQ and scored in the “gifted” and “genius” ranges in some areas, she scored well
below average in other measures of intelligence. Id. at 100–01.
All of this testimony showed two things: that Caudill was a different person when
alcohol and drugs took over, and that her traumatic experiences with her father made her
susceptible to manipulation by men. The first theme implicated one theory for leniency: Why
impose the death penalty on Caudill when she is fundamentally a good person whose family
loves her and who merely needs to escape the lure of addiction? The second theme implicated
another theory for leniency: Why impose the death penalty on Caudill when a cruel and
malicious father made her susceptible to being duped into foolish behavior by a string of men,
ending with Goforth?
Caudill faults her lawyers for failing to do more, noting that this testimony was
“nonspecific” and “generic.” Reply Br. 10–11. Had her lawyer been more diligent, she adds, he
would have discovered other witnesses who could have painted a “more vivid picture.” Id. at 18.
Here are the other witnesses and here is what they would have said in abridged form:
 Ruth Brown, Caudill’s neighbor, would have testified that she witnessed Caudill’s
father chasing her mother down the railroad tracks and shooting at her with a rifle.
 Vina Caudill, Caudill’s grandmother, would have testified that she feared for the lives
of her daughter-in-law and her grandchildren.
 Barbara Watson, Caudill’s second cousin, witnessed Caudill’s father threaten her
mother.
 Ray Towery, one of Caudill’s friends, would have testified about Caudill’s
relationship with a former boyfriend, Eddie Stallworth. Towery saw Stallworth
physically abuse her and encourage her “to begin prostituting.” At one point, Towery
had to intervene to stop Stallworth from beating Caudill. RCr 11.42 App. at 608–10.
 Mike Sipple, a former boyfriend, would have testified that “Virginia is dependent on
men” and addicted to drugs. Id. at 612.
 Ray Hopkins, another former boyfriend, would have testified that he physically
abused Caudill. At one point, he notes, he “backhanded Virginia so hard that she
became unconscious.” Id. at 615. He also would have told the jury that Caudill
called the police several times out of fear.
 Billie Davenport, a social worker, would have testified that Hopkins abused Caudill
and threatened to kill her with a knife.
No. 14-5418 Caudill v. Conover Page 9
On top of these lay witnesses, Caudill says that her lawyer should have called Dr. Allen,
a second expert witness. He would have testified that Virginia had “probable cerebral brain
damage” from years of heavy drug abuse and head trauma. Id. 681.
The Kentucky Supreme Court held that Caudill’s lawyers did not violate the Sixth (and
Fourteenth) Amendment by failing to call these additional witnesses. It reasoned that the
existing witnesses adequately presented this information and these mitigation themes. In its
view, “[d]efense counsel’s investigation and presentation of mitigation evidence in this case
revealed Caudill’s abusive childhood, her substance abuse issues, her violent relationships with
males, and her cognitive deficiencies.” Caudill, 2009 WL 1110398 at *5. “That additional
witnesses existed who would have corroborated or expanded upon this testimony,” the court
concluded, “does not amount to deficient performance by counsel.” Id.B.
Deficiency. The state court resolved the deficiency prong of Caudill’s ineffectiveness
claim on the merits. That means we must deny Caudill’s petition unless the state court’s
decision “was contrary to, or involved an unreasonable application of, clearly established Federal
law,” or “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d).
Caudill maintains that the state court’s decision involved an unreasonable application of
law. But a state court’s decision on the deficiency prong satisfies that requirement only if there
is no reasonable argument that counsel met Strickland’s deferential standard. Harrington v.
Richter, 562 U.S. 86, 105 (2011). Caudill cannot meet that imposing standard.
Start with the proposed testimony of other relatives and friends. “[T]here comes a point
at which evidence from more distant relatives can reasonably be expected to be only cumulative,
and the search for it distractive from more important duties.” Bobby v. Van Hook, 558 U.S. 4, 11
(2009) (per curiam). Just so here. Having already discovered evidence of Caudill’s abusive
childhood, substance abuse problems, and abusive relationships with men, her lawyer had no
constitutional obligation to identify and interview distant relatives, former childhood neighbors,
past boyfriends, and acquaintances who would provide similar information. It was reasonable
No. 14-5418 Caudill v. Conover Page 10
for her lawyer to assume that those closest to Caudill—her immediate family—would have the
most detailed information about her life, and would provide the most compelling testimony as a
result. That’s particularly so given the reality that her family still cared for her and loved her.
Only alcohol and drugs, particularly crack cocaine, had an estranging effect on the family. When
under the influence drugs or alcohol, Caudill was one type of person. When not, she was
another. It’s difficult to maintain that more distant relatives and other friends could have
conveyed this theme more powerfully than her own mother, her two siblings, and her daughter.
So too was it reasonable for Caudill’s lawyer to rely on Dr. Schilling, rather than her
former boyfriends, to convey the abuse she suffered at their hands. Only Dr. Schilling could
connect the dots about how Caudill’s abusive childhood led to her submissive personality, which
led to her tendency to associate with violent and controlling men like Goforth. No lay witness
could have conveyed this theory as persuasively. Nor was there reason at the time to think her
former boyfriends would provide useful testimony. After all, her former boyfriends “‘would
have had no particular reason to be favorably predisposed toward’ admitting their own abuse.”
See infra at 35 (quoting Skipper v. South Carolina, 476 U.S. 1, 8 (1986)). With Dr. Schilling’s
testimony in hand, it was reasonable to devote resources in more promising directions.
Van Hook illustrates the point. Van Hook’s lawyer presented evidence of Van Hook’s
traumatic childhood, substance abuse, and personality disorder. Van Hook, 558 U.S. at 10–11.
But he failed to interview other family members who “could have helped his counsel narrate the
true story of Van Hook’s childhood experience.” Id. at 11. The Court held (under fresh review
no less) that there was nothing wrong with the lawyer’s decision not to seek more mitigation
evidence about the defendant’s background than he already had. Id. at 11–12. Having already
unearthed evidence “from those closest to Van Hook’s upbringing and the experts who reviewed
his history,” the lawyer was under no duty to “identify and interview every other living family
member or every therapist.” Id. at 11. The same conclusion applies here—and doubly so
because AEDPA deference applies.
Nor was her lawyer incompetent for failing to call a second expert, Dr. Allen. In truth,
Dr. Allen’s testimony had the potential to do more harm than good. Dr. Allen’s report said that
Caudill denied that her father abused her or her siblings. This contradicted a key (and, it seems
No. 14-5418 Caudill v. Conover Page 11
to us, powerful) theme of her mitigation case. Because Dr. Schilling had already testified about
Caudill’s brain damage, her lawyer reasonably could conclude that calling Dr. Allen wasn’t
worth the risk of undermining this other mitigation testimony. We presume the reasonableness
of such strategic decisions. Cullen v. Pinholster, 563 U.S. 170, 189 (2011).
Caudill claims several cases lead to a different conclusion. None helps. Most of the
cases involve counsel’s failure to interview anyone. See, e.g., Porter v. McCollum, 558 U.S. 30,
39 (2009) (per curiam); Wiggins v. Smith, 539 U.S. 510, 525 (2003); Foust v. Houk, 655 F.3d
524, 536 (6th Cir. 2011). That situation presents a difference in kind, as a complete failure to
investigate is different from failing to “dig deeper.” Foust, 655 F.3d at 536. Neither is this case
like Rompilla v. Beard, 545 U.S. 374 (2005), in which the lawyers failed their client because
they did not discover mitigating evidence in Rompilla’s criminal records even though the State
notified them that it intended to seek the death penalty by proving that Rompilla had a long
history of felony convictions. Id. at 383–84.
Caudill points out that the Kentucky Supreme Court incorrectly said that Caudill’s
mother, brother, and sister all gave details of Caudill’s history with abusive men. That was a
mistake, true enough. But it was a stray one. And the misstatement had little import given the
other evidence on this score and the court’s other explanations for its decision. That presumably
explains why Caudill does not argue that the court’s decision was “based on an unreasonable
determination of the facts.” 28 U.S.C. § 2254(d)(2). All in all, the state court did not
unreasonably apply Strickland’s deficiency prong.
Prejudice. Even if Caudill could show that her trial lawyers were unconstitutionally
incompetent, she also must demonstrate that “there is a reasonable probability” that, but for that
incompetence, “the result” of the mitigation hearing “would have been different.” Strickland,
466 U.S. at 694. We give fresh review to this part of her claim because the Kentucky Supreme
Court did not address it.
To show prejudice, Caudill must point to evidence that “differ[s] in a substantial way—in
strength and subject matter—from the evidence actually presented at sentencing.” Hill v.
Mitchell, 400 F.3d 308, 319 (6th Cir. 2005). That did not happen. Towery, Hopkins, and
No. 14-5418 Caudill v. Conover Page 12
Davenport, all proposed new witnesses, would have testified about the abuse Caudill suffered at
the hands of her boyfriends. But Dr. Schilling testified extensively about that kind of abuse.
Sipple, another proposed new witness, would have said that Caudill was submissive and
dependent on men. But Dr. Schilling had something better: personality tests showing the same
thing. Brown, Watson, and Caudill’s grandmother, still more new witnesses, would have told
stories about Caudill’s father. But those stories merely elaborate on testimony given by
Caudill’s mother, brother, and sister.
In considering the potential prejudice of omitting this additional testimony, it’s important
to keep in mind the State’s evidence on the other side of the scale. Wong v. Belmontes, 558 U.S.
15, 27 (2009) (per curiam). Caudill and Goforth were undoubtedly guilty. When the police tried
to question the pair, they fled. When police caught the pair, they confessed. Both admitted that
they were present during the murder—but neither admitted who put the hammer to White’s
skull—and the undisputed evidence showed that both defendants disposed of the body by
wrapping it in a carpet, putting it in a car, and burning the car.
Considerable evidence, moreover, suggested that Caudill, not Goforth, was the
mastermind. Caudill dated White’s son, and White gave Caudill money many times before.
Jeanette Holden testified that, shortly before the murder, Caudill mentioned that she knew how to
get “some money” to buy drugs and asked her if she was “down for hurting somebody.” R. 47-7
at 25–26. Julia Davis and Cynthia Ellis, two jailhouse informants, told the jury that Caudill
confessed to being the killer. And Davis indicated that Caudill felt little remorse for her actions
and, ruthlessly to the contrary, found them funny. “Help me, help me, why are you doing this to
me?” she would frequently say while imitating White—a 73 year-old woman who had supported
her and given her money before—as she lay dying from her wounds. Id. at 255.
For what it is worth, the record in front of the state court confirms that at least some
jurors thought that Caudill was the aggressor rather than the dupe. An alternate juror who sat
during the guilt phase of the trial stated in a post-verdict interview that he “believed much of
what Goforth said on the stand to pin the murder on Caudill”—that Caudill “exploded” when
White refused to “give her money” to buy drugs. RCr 11.42 App. at 712. Another juror who sat
during both the guilt and penalty phases stated that she thought “Caudill [was] more culpable”
No. 14-5418 Caudill v. Conover Page 13
and that “Caudill hit the victim first and then passed the hammer to her co-defendant.” Id. at
706.
All evidence considered, the proposed new witnesses had no realistic possibility of
changing the verdict. At bottom, Caudill and Goforth murdered Lonetta White for drug money.
Instead of facing the consequences of their actions, they torched her body to eliminate evidence
and went on the run. And instead of showing remorse for her deeds, Caudill ridiculed the way in
which White begged for mercy. The jury did not sentence Caudill to die because her lawyers
were incompetent. They did so because of her actions.
Caudill and the dissent resist this conclusion on the ground that the evidence her lawyer
failed to find was stronger than the evidence he found. The jury merely heard, they insist, that
Caudill’s father “drank a lot” and “[w]hen he drank he was ‘mean.’” Appellant’s Br. 61–62;
infra at 29. But that understates things. The jury heard from Caudill’s mother that Caudill’s
father was much more than a mean drunk; he “was abusive to me, he was abusive to the children,
and he was physically and mentally abusive,” she said. R. 47-10 at 36. They heard similar
testimony from Caudill’s brother, her sister, and Dr. Schilling. And the jurors didn’t just hear
that the children were “scared” of their father. Infra at 17–18. They heard that the children were
“scared to death” of him, so much so that they would hide or run away when he came home
drunk. R. 47-10 at 36–37.
Some of the witnesses, to be sure, might have painted an even more detailed picture of
the abuse Caudill suffered. But this argument is of a piece with the one rejected in Van Hook.
There, a panel of this court held that Van Hook was prejudiced by his lawyer’s failure to seek out
“available family members willing to help tell his story” through “first-hand accounts,” including
a story about how “his father tr[ied] to kill his mother.” Van Hook v. Anderson, 560 F.3d 523,
529 (6th Cir. 2009). But the Supreme Court turned that argument aside because the trial court
was “already aware that [Van Hook’s] father had a violent nature.” 558 U.S. at 12. We should
not make the same mistake twice.
That leaves one loose end. In addition to faulting her lawyer for failing to call more
witnesses, Caudill accuses him of failing to prepare the witnesses who testified. But she never
No. 14-5418 Caudill v. Conover Page 14
asked us to grant a certificate of appealability on that claim. A.R. 10 at 40–54. We may not
consider it now. See Hill, 400 F.3d at 332.
For these reasons, we affirm.
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_______________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
_______________________________________________________
KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part.
Although I agree with the majority’s conclusion with regard to Virginia Caudill’s Batson claim, I
disagree with the majority’s conclusion that Caudill has failed to establish constitutional
deficiency and prejudice with regard to her ineffective-assistance-of-counsel claim. Because the
efficacy of counsel’s assistance is a fact-mired question, I first offer a more detailed summary of
the facts at issue.
I. BACKGROUND
A. Caudill’s Mitigation Case
Caudill was jointly tried with co-defendant Johnathon1 Wayne Goforth. Although both
“admitted they were present at the commission of all of these crimes,” each “accused the other of
murdering and robbing the victim and of setting fire to the automobile.” Caudill v.
Commonwealth (Caudill I), 120 S.W.3d 635, 648 (Ky. 2003).2 The jury never settled on either
of these competing narratives: at the conclusion of the trial’s guilt phase, both Caudill and
Goforth were convicted of “murder—principal or accomplice.” Id. at 666.
During the trial’s sentencing phase, Caudill’s counsel called six lay witnesses: Caudill’s
mother, Mary Caudill; brother, Craig Caudill; sister, Rhonda Caudill Whitt; daughter, Leslie
Nicole Caudill; prison minister, Caroline Worley; and cousin, John Moncrief. See R. 47-10
(Trial Tr., Index to Videotape #9 at 2–3, Videotape #9 at 33, 45, 49, 52, 56) (Page ID #2021–22,
2052, 2064, 2068, 2071, 2075). Caudill’s trial counsel also called one expert witness: Dr. Peter
Schilling, a forensic psychologist. Id. (Trial Tr., Index to Videotape #9 at 3, Videotape #9 at 91–
92) (Page ID #2022, 2110–11).
1
At times spelled “Jonathan” or “Jonathon.”
2
Goforth initially leveled blame elsewhere, too: he claimed “that an unidentified African-American male
had assisted Caudill in the commission of the crimes (an assertion he admitted at trial was a fabrication).” Caudill I,
120 S.W.3d at 650.
No. 14-5418 Caudill v. Conover Page 16
Caudill’s mother, Mary, testified that she “had several difficulties” with her husband
while Caudill was growing up and that these difficulties were “related to his alcohol problem.”
Id. (Trial Tr., Videotape #9 at 34) (Page ID #2053). She said that “when he’d get drunk, he was
mean” and “physically and mentally abusive” to her and the children. Id. at 35 (Page ID #2054).
The children “adored their daddy,” she explained, but “were scared to death of him” when he had
been drinking. Id. She added that she and her husband later separated for four months, after
which “[h]e never touched a drop” and they reunited. Id. at 36 (Page ID #2055). She also stated
that Caudill “didn’t learn as fast as the other two children” while growing up, and that Caudill
had been “teased about her weight” and her glasses as a child. Id. at 37 (Page ID #2056). She
noted that Caudill had developed a drug problem in high school, but that she was “the most
wonderful daughter anybody could ever want” when not on drugs. Id.
Caudill’s brother, Craig, testified that his and Caudill’s father “was bad to drink” and
“real abusive to us and my mom.” Id. at 46 (Page ID #2065). Caudill’s counsel responded by
asking Craig if his father had been “able to deal with that drinking problem later on in his life.”
Id. Craig said that his father had indeed: “He straightened his life out. He was a totally different
person.” Id. Craig’s direct examination then concluded with Craig’s agreeing that he “feel[s]
better that Virginia is no longer on the streets using” and adding that “[a]t least” he “know[s]
where she’s at now.” Id. at 47 (Page ID #2066). All in all, the direct examination of Craig ran a
little over two transcript pages of twenty-six lines each.
Caudill’s sister, Rhonda, also agreed, when asked, that the siblings’ father “had a
drinking problem” and “would also come home and could be abusive, verbally and sometimes
physically,” which she stated was “[v]ery frightening” and made them “[s]cared.” Id. at 49
(Page ID #2068). “[Y]ou all loved your father,” Caudill’s counsel offered. “Oh, yes, sir,”
Rhonda responded. “Uh, but when he was drinking, it was frightening for you?” Caudill’s
counsel asked. “Yes,” Rhonda said. Id. at 49–50 (Page ID #2068–69). Rhonda then agreed that
Caudill had been “slower to learn,” had been teased about her weight growing up, “just wasn’t
very popular,” and had ended up “getting in with the . . . wrong type of people.” Id. at 50 (Page
ID #2069). Rhonda’s direct testimony, which also ran a little over two transcript pages,
No. 14-5418 Caudill v. Conover Page 17
concluded with her noting that nobody else in her family had a drug problem. Id. at 51 (Page ID
#2070).
Excluding a sidebar conversation, the testimony of Caudill’s daughter, Leslie Nicole,
lasts a little under two pages. See id. at 52–54 (Page ID #2071–73). It goes, in all relevant parts,
as follows:
COUNSEL: Uh, your—you, you love your mom?
LESLIE NICOLE: Yes.
COUNSEL: Okay. But you know that, uh, there’s been some problems in the
past in your all’s relationship?
LESLIE NICOLE: Yes.
COUNSEL: What’s been the cause of that problem?
LESLIE NICOLE: Her drugs and her drinking and her, her boyfriends.
COUNSEL: Uh, when she is not drinking, is not associating with drugs, that kind
of culture, what kind of mom is she?
LESLIE NICOLE: She’s great.
COUNSEL: Okay.
LESLIE NICOLE: She’s good.
COUNSEL: And you’ve seen the other side, too, when she’s using?
LESLIE NICOLE: Yes [crying]. . . .
COUNSEL: Do you believe she’s going to be able to get some help for her drug
problems, that she’s going to be able to—willing to get help with that?
LESLIE NICOLE: Yes, she wants help.
COUNSEL: I believe that’s all.
Id. at 53–54 (Page ID #2072–73).
Caudill’s prison minister, Caroline Worley, testified that Caudill had gone to her prayer
services and that Caudill had “encourage[d] some of the other women to come” as well. Id. at
56–57 (Page ID #2075–76). She added that Caudill had also accepted books that Worley
provided and read them to other inmates, and that Caudill had encouraged another woman to
come to Worley to get help for her drug problem. Id. at 57 (Page ID #2076). Worley’s direct
examination ran almost exactly two pages.
No. 14-5418 Caudill v. Conover Page 18
The testimony of Caudill’s cousin, John Moncrief, in all relevant parts goes as follows:
COUNSEL: [A]re you related to, uh, Virginia Caudill?
MONCRIEF: Yes, I am.
COUNSEL: Uh, how are you related?
MONCRIEF: She’s my cousin.
COUNSEL: Okay. And have you had contact with her when she has not been on
any kind of drugs and, uh, in the past?
MONCRIEF: Yes, I have. Um, she used to drag race, uh, her boyfriend’s car,
and I’d go up there every Sunday to Clay City and spend time with her.
COUNSEL: Okay. Okay. What kind of person is she when she’s, uh, not on—
using drugs?
MONCRIEF: She’s a good person.
COUNSEL: Okay. And have you been able to visit her at the jail?
MONCRIEF: Yes, I have.
COUNSEL: Uh, do you feel that, uh, she is, uh, attempting to turn her life
around?
MONCRIEF: Yes, she is.
COUNSEL: I believe that’s all I have.
Id. at 87 (Page ID #2106). Moncrief’s testimony lasted roughly one page.
Dr. Schilling, the forensic psychologist and sole expert witness whom the defense called
during the penalty phase, testified that he had performed a psychological evaluation of Caudill
based on four visits with her. Id. at 92 (Page ID #2111). He explained that having “an alcoholic
father who was emotionally and physically abusive” had been “branded into [Caudill] in a way
that . . . was very hard for her to escape.” Id. at 94 (Page ID #2113). He discussed a series of
relationships—including two early marriages—that had featured threats of violence or actual
violence, id. at 95–97 (Page ID #2114–16), including one boyfriend who had broken “her wrist,
nose and jaw at various times” and “repeatedly struck her in the face throughout their
relationships,” id. at 96 (Page ID #2115). He noted that “she’s been hit in the face by men she’s
been in relationships with more times than she can remember,” at least once losing
consciousness, and that she had worked at times as a prostitute. Id. He also discussed at some
length Caudill’s history of drug use and addiction. Id. at 97–99 (Page ID #2116–18). And he
No. 14-5418 Caudill v. Conover Page 19
noted that there was “highly unusual,” “extreme variation” in her cognitive abilities, with some
scores “in the gifted” or “perhaps even genius range” and others “way below average.” Id. at
99–100 (Page ID #2118–19). He concluded that variation was the result of “brain damage” from
some combination of “the head trauma” and “years of . . . drug abuse” that Caudill’s brain had
sustained, or alternatively a long-undiagnosed learning disability, or possibly both. Id. at 100
(Page ID #2119). Finally, Schilling testified that, based on personality tests he had conducted,
Caudill’s results “show[ed] that she is about as submissive as you can get,” “particularly with
respect to men.” Id. at 106 (Page ID #2125).
At the conclusion of the trial’s penalty phase, the jury sentenced both Caudill and
Goforth to death. Caudill I, 120 S.W.3d at 648.
B. Postconviction Investigation and Proceedings
In the wake of their death sentences, Caudill and Goforth appealed directly to the
Kentucky Supreme Court, as provided in the Kentucky Constitution, KY. CONST. § 110(2)(b),
and by state law, KY. REV. STAT. § 532.075(1). After that effort was unsuccessful, Caudill
commenced state post-conviction review under Kentucky Rule of Criminal Procedure 11.42
(RCr 11.42). See Caudill v. Commonwealth (Caudill II), No. 2006-SC-457-MR, 2009 WL
1110398, at *1 (Ky. Apr. 23, 2009). Caudill raised a series of claims, including an ineffective-
assistance-of-counsel claim alleging that “defense counsel was ineffective in the presentation of
mitigation evidence during the penalty phase of the trial.” See id. at *4.
Caudill filed documentation in support of this claim. Her new counsel’s postconviction
investigation revealed that:
● Susan Snyder, the mitigation specialist whom Caudill’s trial counsel had
enlisted, had written to Caudill’s attorney a little under two months before
trial stating that it had thus far been “impossible . . . to piece together a
‘tight’ Mitigation Plan due to the fact that there is so much necessary data
missing.” RCr 11.42 App. (Vol. 5, Ex. S, p. 584). She wrote that “we
need help, A.S.A.P.,” id., that she was approaching “the frantic stage,” id.
(p. 585), and that she hoped that Caudill would “be more motivated to
help [her] in contacting her family, and potential necessary witnesses,” id.
She also enclosed a list of outstanding documents. Id. (p. 584). At the
No. 14-5418 Caudill v. Conover Page 20
bottom of the page, scrawled by hand and circled, are the words: “Help!
Please!” Id. (p. 585).
● Caudill’s grandmother, Vina Caudill, “would have testified at [Caudill’s]
trial but no one ever asked [her] to testify.” Id. (Vol. 5, Ex. V, p. 592).
Had she been called to testify, she would have testified that Caudill’s
father “would get drunk every weekend or so and would slap and hit Mary
[Caudill’s mother] in front of the children,” that Caudill “was very afraid
of her father and once I crawled in bed with her because she was a nervous
wreck and shaking uncontrollably,” and “[s]ometime[s] the children
would pull Kirby [Caudill’s father] off Mary and prevent him from hurting
her.” Id.
● Caudill’s next-door neighbor from growing up, Ruth Brown, “love[s]”
Caudill, “ha[s] never seen [her] violent,” and “would have gladly testified
at the first trial, but . . . was not asked to.” Id. (Vol. 5, Ex. W, p. 595).
Had Brown been called to testify, she would have testified that “Mary
never talked about Kirby abusing her,” but that she knew that he had
“because one night Kirby was drunk and shooting his rifle at Mary” and
Brown “saw Mary running from Kirby down the tracks in her nightgown
at 2:00 am.” Id.
● Caudill’s second cousin, Barbara Watson, “was never interviewed” by
Caudill’s mitigation team, despite having “been easy to contact” by virtue
of “liv[ing] only a few miles from the family.” Id. (Vol. 5, Ex. X, p. 598).
Had she been called to testify, she would have testified that she “recall[ed]
[Caudill] being attracted to older abusive men like her father,” one of
whom threated to “whip” Watson. Id. Watson also would have testified
that “Mary and Kirby treated Virginia differently from the other two
children,” id., that Kirby Caudill “liked to pull a gun out when he drank,”
including at “family functions,” and that Kirby Caudill once “took Mary to
the community dump where everyone took their garbage and where people
would go to shoot rats” and “threatened to shoot Mary” there, id. (p. 599).
Watson also would have testified that Kirby Caudill once, while holding a
shotgun in a car in which Caudill was riding in the back seat, “made
[Caudill] tell him where Mary was.” Id.
● Several ex-boyfriends of Caudill’s, including one who admittedly abused
her, would have testified to Virginia’s nonviolent character and history as
a victim of domestic abuse. See id. (Vol. 5, Ex. Z, pp. 608–10) (Ray
Towery, discussing abuse Caudill suffered at the hands of another ex-
boyfriend who beat her and “encouraged [her] to begin prostituting”); id.
(Vol. 5, Ex. AA, pp. 611–13) (Mike Sipple, discussing Caudill’s reports
that “her life was filled with alcoholic and abusive men”); id. (Vol. 5, Ex.
BB, pp. 614–17) (Ronnie Ray Hopkins, admitting to knocking Caudill
unconscious and playing a role in her becoming addicted to crack
cocaine).
No. 14-5418 Caudill v. Conover Page 21
● A domestic-abuse counselor named Billie Davenport could have testified
further to Caudill’s history as a victim of domestic violence and what
studies show about the effects of domestic violence on children who
witness it. Id. (Vol. 5, Ex. CC, pp. 618, 620–24); see also id. (Vol. 6, Exs.
DD–FF, pp. 625–73) (health records detailing history of domestic abuse
suffered).
● Dr. Schilling, the forensic psychologist, never received Susan Snyder’s
“final report” because he “didn’t feel it was [his] duty to drive to Ms.
Snyder’s to get it.” Id. (Vol. 6, Ex. GG, p. 675). Had he received this
report, it would have “assisted in an accurate mental health evaluation of
[Caudill].” Id. The letter he received from Snyder did not in fact enclose
a list of needed documents because an investigator, John Baldridge, had
been “unsuccessful in receiving a lot of the information she requested
including school records, hospital records, places of employment, training
and potential people to interview.” Id.; see also id. (p. 678–79) (attached
letter from Snyder with handwritten note at bottom). Schilling never
received those records or other “records [he] needed,” including “school
records or medical records” and “police reports” that “would have
informed [his] diagnosis.” Id. (pp. 675–76).
● Dr. Allen, the neuropsychologist who was not called to testify, “never
spoke with or met with” Caudill’s trial attorney about his findings or any
other subject “at all.” Id. (Vol. 6, Ex. HH, p. 681). He “did not receive
needed medical records for [Caudill], which are routine in cases such as
this,” and “[t]he time for preparing [his] report was so short that [he] was
not able to complete a rout[in]e follow-up with Virginia following [his]
evaluation.” Id. Allen concluded from his evaluation that Caudill
“showed probable cerebral brain damage like that of a stroke.” Id.
Allen’s report also states that Caudill told him that “her father drank
heavily and was abusive to her mother for a five-year period during her
late childhood and early adolescence,” but Caudill “denied that her father
was in any way abusive to her or her siblings.” Id. (Vol. 6, Ex. II, p. 684).
● Caudill’s mother, Mary, had been “told . . . in the morning” on the day that
she testified as part of the sentencing phase of Caudill’s trial “that [she]
would testify that afternoon.” Id. (Vol. 6, Ex. II, p. 695). “The short
notice blind-sided [her].” Id. She spent “15 minutes” with Caudill’s trial
attorney “during the recess in preparation for testimony” but received no
other preparation. Id. Had she been more prepared, she could have
testified to her husband’s physical abuse of the children, the “many
occasions” that Kirby had “tried to kill [her],” the times that Kirby had
“threatened [her] with knives and guns in front of the children,” id. (p.
693), the time that Kirby “shot a hole through the front door of the trailer
and two or three shots through the window of the trailer” where she was
staying, the time that Kirby “shot a rifle at [her] that blew a hole through
No. 14-5418 Caudill v. Conover Page 22
the door of our house” while “[t]he children were in their bedrooms,” id.
(p. 694), and the fact that while Caudill’s brother and sister “would try and
fight back with their father,” Caudill “was real quiet and would cry as she
hid under the bed,” id. (p. 695).
● Caudill’s brother, Craig, never spoke with Caudill’s attorney before the
day that he testified and did not feel that he had been given “an
opportunity to tell the jury” that their father had “would beat [him],
Virginia, and Rhonda senseless until he brought blood,” using “sticks,
belts, and other objects” and sometimes “threaten[ing] [them] with his
gun.” Id. (Vol. 6, Ex. KK, p. 698). He would have added that their father
“hit us full force with his fist, kicked us with his shoes on, and threw
objects which struck us.” Id. (p. 699). In addition, he would have testified
that all three children “were terrified of [their] father,” who “threatened to
kill” them and their mother “on many occasions,” and that Caudill “was
the most submissive of the three children” and once “urinated on herself
out of fear of” her father. Id.
● Caudill’s sister, Rhonda, met with Caudill’s attorney “a few minutes
before [she] was to testify” in the sentencing phase of Caudill’s trial and
also felt she did not have a “sufficient opportunity to speak to the jury
about [her] father’s abusive behavior toward Virginia and [her] mother.”
Id. (Vol. 6, Ex. LL, p. 702). Had she had the opportunity to testify further,
she would have testified that her father “regularly beat [her] mother in
front of us,” that she “remember[s] stopping [her] father’s beating by
striking him over the head with a picture from the wall” while she “was
ten years old.” Id.
On April 23, 2009, the Kentucky Supreme Court denied Caudill’s appeal. Caudill II,
2009 WL 1110398, at *11. With regard to her ineffective-assistance-of-counsel claim asserting
inadequate representation in presenting a mitigation case, the court reasoned that because
“[d]efense counsel’s investigation and presentation of mitigation evidence in this case revealed
Caudill’s abusive childhood, her substance abuse issues, her violent relationships with males,
and her cognitive deficiencies,” there was no indication in the record that counsel had failed to
render constitutionally adequate representation. Id. at *5. “That additional witnesses existed
who would have corroborated or expanded upon this testimony,” the court concluded, “does not
amount to deficient performance by counsel.” Id. Having decided the case on the ground of
constitutionally adequate performance, the court did not address whether Caudill had been
prejudiced. See id.
No. 14-5418 Caudill v. Conover Page 23
II. DISCUSSION
Under Strickland v. Washington, 466 U.S. 668 (1984), a petitioner’s ineffective-
assistance-of-counsel claim succeeds only if (1) her “counsel’s performance was deficient,” and
(2) this “deficient performance prejudiced the defense.” Id. at 687. To satisfy the first prong of
this test, a petitioner “must show that counsel’s representation fell below an objective standard of
reasonableness . . . under prevailing professional norms” and “considering all the
circumstances.” Id. at 688. Applying this “highly deferential” scrutiny, courts must not simply
“second-guess counsel’s assistance after conviction or adverse sentence,” but rather must make
“every effort . . . to eliminate the distorting effects of hindsight” and “evaluate the conduct from
counsel’s perspective at the time,” “indulg[ing] a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance” and strategy. Id. at 689.
As the majority notes, because Caudill is a habeas petitioner, AEDPA provides that we
may not grant her petition with regard to any state-court adjudication on the merits “unless the
adjudication resulted in a decision that: (1) was contrary to, or involved an unreasonable
application of, clearly established federal law as determined by the Supreme Court; or (2) was
based on an unreasonable determination of the facts in light of the evidence presented to the state
courts.” Hodges v. Colson, 727 F.3d 517, 525 (6th Cir. 2013) (citing 28 U.S.C. § 2254(d)).
Because the Kentucky Supreme Court found that Caudill’s trial counsel’s performance was
constitutionally adequate but did not address prejudice, we give AEDPA deference to its
performance determination but consider the prejudice prong de novo. Wiggins v. Smith,
539 U.S. 510, 534 (2003); Hodges, 727 F.3d at 537.
Because AEDPA itself requires a deferential look at the determinations of state courts,
when AEDPA applies to constrain a federal court’s review of a state court’s judgment on an
ineffective-assistance-of-counsel claim, review “is thus ‘doubly deferential.’” Cullen v.
Pinholster, 563 U.S. 170, 190 (2011) (quoting Knowles v. Mirzayance, 556 U.S. 111, 123
(2009)). “The question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Harrington v. Richter, 562 U.S. 86, 105 (2011). “Even in the
context of federal habeas,” however, “deference does not imply abandonment or abdication of
judicial review.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
No. 14-5418 Caudill v. Conover Page 24
A. Performance
As indicated above, Strickland affords attorneys “wide latitude” to make strategic
decisions in representing their clients. Strickland, 466 U.S. at 689. But while “strategic choices
made after thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable, . . . strategic choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support the limitations on
investigation.” Strickland, 466 U.S. at 690–91. “In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision that makes particular investigations
unnecessary.” Id. at 691.
Here, Caudill claims that her trial counsel failed to meet that duty by insufficiently
investigating, discovering, and presenting evidence to support a meaningful mitigation case.
More specifically, she argues, her trial counsel (a) failed to prepare and support most of the
witnesses that counsel did call (either by failing to consult with them beforehand or by failing to
provide them with key documents),3 and (b) failed to call (or even, in most cases, discover) other
potentially powerful mitigation witnesses. See Appellant’s Br. at 16–18. Despite AEDPA’s
deferential standard of review, Caudill’s overarching argument—that counsel’s mitigation effort
3
I would not brush this line of argument aside, as the majority does. Maj. Op. at 13–14. While it is true
that the relevant portion of Caudill’s COA refers to “whether Caudill’s trial counsel was constitutionally ineffective
for failing to call additional witnesses during the penalty phase of proceedings,” Caudill v. Conover, No. 14-5418, at
12 (6th Cir. May 11, 2016), “a COA’s failure to indicate an issue is not” jurisdictional, Gonzalez v. Thaler, 565 U.S.
134, 143 (2012). We thus still have “subject-matter jurisdiction to adjudicate” this claim, id. at 137, as well as the
“ability to grant a COA in the first instance at [our] own discretion,” Johnson v. Hudson, 421 F. App’x 568, 570 n.1
(6th Cir. 2011). There is no reason that we could not do so here. Meanwhile, the Warden—fully aware of this line
of argument from Caudill’s opening brief (not to mention her federal habeas petition and RCr 11.42 pleadings)—did
not argue that Caudill had exceeded the scope of her COA and instead simply responded to Caudill’s substantive
arguments. See Appellee’s Br. at 26–27. Under such circumstances, there is especially good cause to consider the
full range of Caudill’s arguments. Cf. Cummings v. City of Akron, 418 F.3d 676, 681–82 (6th Cir. 2005) (explaining
why claim that plaintiff failed to raise in complaint should still go forward where defendant had notice, did not
object, and issue was fully briefed). And that this is a capital case only makes the cause greater. Cf., e.g., California
v. Ramos, 463 U.S. 992, 998–99 (1983) (“The Court, as well as the separate opinions of a majority of the individual
Justices, has recognized that the qualitative difference of death from all other punishments requires a
correspondingly greater degree of scrutiny of the capital sentencing determination.”). Finally, even if we were to
restrict our formal ruling to the terms of the COA, our task in assessing deficiency here is to separate genuine
“strategic decision[s]” from “post hoc rationalization[s]” dressed up to mask what was truly “inattention.” See
Wiggins, 539 U.S. at 526–27. If trial counsel’s preparation and support for the witnesses that he did call was
lackadaisical at best, then it is all the more likely that trial counsel’s investigation and assessment of other, potential
witnesses was equally careless.
No. 14-5418 Caudill v. Conover Page 25
was constitutionally deficient—has merit: the facts reveal a mitigation effort that was so cursory
that there is “no reasonable argument that counsel satisfied Strickland’s deferential standard.”
Richter, 562 U.S. at 105.
1. Failure to prepare and support existing witnesses
The Kentucky Supreme Court rejected Caudill’s claim on the theory that it asserted
merely that “defense counsel failed to present more mitigation evidence of the same quality that
had already been presented.” Caudill II, 2009 WL 1110398, at *5. Although Caudill’s trial
counsel called five family members and one lay witness to the stand (as well as the one expert),
the record reveals that these direct examinations were pitifully underdeveloped. Counsel
developed only a brief and sanitized version of Caudill’s father’s dramatic abuse—qualified,
bafflingly, with discussion of his later repentance—from Caudill’s mother, Mary Caudill, R. 47-
10 (Trial Tr., Videotape #9 at 34–36) (Page ID #2053–55), despite the fact that postconviction
investigation revealed that he had “tried to kill [her] many times,” RCr 11.42 App. (Vol. 6, Ex.
II, p. 695), had “threatened [her] with knives and guns in front of the children,” id. (p. 693), had
once “shot a hole through the front door of the trailer and two or three shots through the window
of the trailer” where she was staying, and had “shot a rifle at [her] that blew a hole through the
door of our house” while “[t]he children were in their bedrooms,” id. (p. 694).
It is true, as the Warden argues, that “the opportunity was there for expansion of [her]
answer[]” and that “counsel cannot testify for [her].” Appellee’s Br. at 27. But counsel can, and
moreover must, conduct a rudimentary investigation and preparation of counsel’s witnesses. See
Foust v. Houk, 655 F.3d 524, 535 (6th Cir. 2011) (finding deficient performance where trial
counsel “failed to interview any of [the defendant’s] siblings” and “did not interview [the
defendant’s] parents before they testified at the mitigation hearing,” while providing only
perfunctory guidance to them); Jells v. Mitchell, 538 F.3d 478, 493 (6th Cir. 2008) (granting
habeas relief where petitioner’s “counsel interviewed only three family members” and, “[w]hen
speaking with the family members they did contact, their inquiry was brief and they failed to ask
sufficiently probing questions”). In this case, Mary Caudill’s failure at trial to provide an
accurate and vivid account of her husband’s abuse seems to have stemmed from Mary’s having
been “told . . . in the morning” on the day of her testimony that she “that [she] would testify that
No. 14-5418 Caudill v. Conover Page 26
afternoon,” and moreover from her having been able to spend only “15 minutes” with Caudill’s
trial attorney “during the recess in preparation for testimony” while receiving no other
preparation. RCr 11.42 App. (Vol. 6, Ex. II, p. 695). Constitutionally adequate counsel would
have had a conversation with a crucial mitigation witness like Mary Caudill that lasted longer
than fifteen minutes and that occurred before the day of her testimony.
Craig and Rhonda’s testimony shows the same pattern of perfunctory representation.
Each had vivid and disturbing things to say about their father’s abuse: how he “would beat
[them] senseless until he brought blood,” using “sticks, belts, and other objects” and sometimes
“threaten[ing] [them] with his gun,” id. (Vol. 6, Ex. KK, p. 698); how he would “hit [them] full
force with his fist, kick[] [them] with his shoes on, and thr[o]w objects” at them, id. (p. 699);
how Caudill “was the most submissive of the three children” and was so terrified of her father
that she once “urinated on herself out of fear of” him, id.; and how their father “regularly beat
[their] mother in front of [them],” at times forcing the other children (though as far as we know
never Caudill herself) to try to stop his beating with violence, id. (Vol. 6, Ex. LL, p. 702). Yet
none of these details came out in their testimony. Rather, Caudill’s lawyer asked both of them
an extremely brief and anodyne series of questions, each barely lasting two pages on a double-
spaced transcript. See R. 47-10 (Trial Tr., Videotape #9 at 46–48) (Page ID #2065–67); id. at
49–51 (Page ID #2068–70). Neither, meanwhile, seems to have even spoken to Caudill’s trial
counsel prior to the day of their testimony, nor does it appear that either of them spoke to him
more than “a few minutes before [they were] to testify” even then. RCr 11.42 App. (Vol. 6, Ex.
KK, p. 698); id. (Vol. 6, Ex. LL, p. 702). And Caudill’s trial counsel’s examination of the other
three lay witnesses that he called was equally, if not more, pathetic, with none exceeding two
transcript pages and all three (like Mary’s, Craig’s, and Rhonda’s direct examinations) reading
like a “few naked pleas for mercy,” Rompilla v. Beard, 545 U.S. 374, 393 (2005), rather than a
constitutionally adequate mitigation case.
Caudill’s counsel’s limited exploration of this potentially powerful mitigating evidence
demonstrates deficient representation. “In assessing the reasonableness of an attorney’s
investigation, . . . a court must consider not only the quantum of evidence already known to
counsel, but also whether the known evidence would lead a reasonable attorney to investigate
No. 14-5418 Caudill v. Conover Page 27
further.” Wiggins, 539 U.S. at 527. Thus, an attorney who “present[s] some evidence at [a]
mitigation” hearing—even if that evidence provides the broad contours of mitigation theory—
may still be constitutionally ineffective if that attorney fails to acquire sufficient details to
support a “reasonable professional judgment to limit their investigation” from going further.
Foust, 655 F.3d at 538.
Accordingly, in Johnson v. Bagley, 544 F.3d 592 (6th Cir. 2008), we observed that even
though the defendant’s counsel “interviewed [five] witnesses and submitted some testimony
regarding Johnson’s troubled [childhood],” counsel was not off the hook from digging further,
given that digging further would have been the only reasonable response to such a promising but
underdeveloped lead. See id. at 602. As we made clear, “an unreasonably truncated mitigation
investigation is not cured simply because some steps were taken prior to the penalty-phase
hearing and because some evidence was placed before the jury.” Id. (citing Rompilla, 545 U.S.
at 382–83); see also id. at 599 (observing that “[a]t a surface level, it appears that Johnson’s
counsel considered all of [the options outlined in the ABA Guidelines], performed some
investigation with respect to each option and deployed some of these strategies”).
The same logic applies here: Caudill’s counsel knew that Caudill had a “horrific
childhood,” but “only scratched the surface of” it through the testimony presented, id. at 602,
throwing witnesses on the stand with scant preparation and leading them through a rote and
emotionless recitation of the fact that Caudill’s father was a “mean” drunk, R. 47-10 (Trial Tr.,
Videotape #9 at 35) (Page ID #2054). But mean is not the same as murderous, and having your
father come home and be mean is not the same as having your father come home and try to kill
your mother. Nor is being “scared” of your father, id. at 49 (Page ID #2068), the same thing as
being so scared that you urinate on yourself because of him, RCr 11.42 App. (Vol. 6, Ex. KK, p.
699). Just because counsel learned something does not mean that counsel was not obligated to
try to learn more.
Defense counsel’s failure to provide its expert witnesses with necessary documents
further indicates that counsel’s “incomplete investigation was the result of inattention, not
reasoned strategic judgment.” See Wiggins, 539 U.S. at 534. The mitigation specialist employed
by defense counsel, Susan Snyder, had warned a little less than two months before trial that it
No. 14-5418 Caudill v. Conover Page 28
had thus far been “impossible . . . to piece together a ‘tight’ Mitigation Plan due to the fact that
there is so much necessary data missing.” RCr 11.42 App. (Vol. 5, Ex. S, p. 584). The affidavits
of the two psychological experts—Drs. Allen and Schilling—confirm the general lack of
organization in the defense team: Schilling, for one, evidently never received Snyder’s report
because he “didn’t feel it was [his] duty to drive to Ms. Snyder’s to get it,” id. (Vol. 6, Ex. GG,
p. 675), nor did he receive other information, like “school records or medical records” or “police
reports” that “would have informed [his] diagnosis,” id. (p. 676). And Allen, the
neuropsychologist who was not called to testify, “never spoke with or met with” Caudill’s trial
attorney about his findings or any other subject “at all” and “did not receive needed medical
records for [Caudill], which,” he explained, “are routine in cases such as this.” Id. (Vol. 6, Ex.
HH, p. 681). In fact, “[t]he time” that Allen had “for preparing [his] report was so short that [he]
was not able to complete a rout[in]e follow-up with Virginia following [his] evaluation.” Id.And as the postconviction investigation revealed, there were in fact voluminous medical records
detailing the injuries that Caudill had suffered at the hands of abusive partners. See id. (Vol. 6,
Exs. DD–FF, pp. 625–73).4
Here, defense counsel was well aware that his client had suffered domestic abuse ranging
from childhood to adulthood, that this abuse was relevant to both basic mitigation and residual
doubts about guilt, and that at least some of his expert witnesses lacked routine records that they
were expecting. The defense’s own mitigation specialist had warned counsel that these records
were needed “A.S.A.P.” and that she was she was approaching “the frantic stage.” Id. (Vol. 5,
Ex. S, p. 585). Though prejudice, as the district court pointed out, is a separate question, R. 34
4
The Warden argues that “to the extent that any problems did occur, they were related to the investigator’s
inability to get documents that the mitigation team had sought (through no fault of his own), or involved Caudill’s
lack of motivation to assist her mitigation team (particularly in regard to family members).” Appellee’s Br. at 24.
Caudill notes in response, however, that “investigators are agents of attorneys and work at their direction—a failure
of the investigator is a failure of the attorney.” Reply Br. at 14 (citing KY. SUP. CT. R. 3.130(5.3) (“Responsibilities
regarding nonlawyer assistants.”). Regardless of whether that particular rule applies here, Caudill has the better of
this argument: it is clearly established that defense attorneys are ultimately the ones responsible for the
reasonableness of an investigation. See, e.g., Rompilla, 545 U.S. at 377 (holding that the “lawyer is bound to make
reasonable efforts to obtain and review” relevant material (emphasis added)); cf. Johnson, 544 F.3d at 601–03
(relying in part on chaos and inexperience among nonlawyer members of the mitigation team to find deficient
performance). Likewise, a client’s unhelpfulness is not a bar to a finding of ineffective assistance when other
indications make clear that an attorney ought to investigate further. See Rompilla, 545 U.S. at 381–83. And such
records, the Supreme Court has made clear, can be crucial components of a mitigation case. See, e.g., Wiggins,
539 U.S. at 516–17, 523–25.
No. 14-5418 Caudill v. Conover Page 29
(Dist. Ct. Op. & Order at 103) (Page ID #534), it is hard to see how counsel’s failure to obtain
these documents and ensure that all necessary documents got into the right hands can reasonably
be said to have constituted “reasonable professional assistance” or “sound trial strategy.”
Strickland, 466 U.S. at 689 (citation omitted); see also Foust, 655 F.3d at 535 (finding it
impossible to “fathom why counsel failed to obtain” Children’s Services records, given that
“counsel’s strategy was to evoke sympathy for [the defendant] based on the deplorable
conditions of his childhood” and a retained expert’s having “repeatedly reminded counsel of the
importance of gathering the records”). Rather, it appears to be one more piece of evidence that
Caudill’s counsel performed “an anemic and leaderless investigation.” Johnson, 544 F.3d at
600.
2. Failure to discover and call additional witnesses
In addition to failing adequately to prepare and interview the mitigation witnesses that
Caudill’s trial counsel did call, counsel also failed to reach out beyond that circle to others who
could speak to Caudill’s troubled past. To be sure, “the duty to investigate does not force
defense lawyers to scour the globe on the off chance something will turn up” to help their client.
Rompilla, 545 U.S. at 383. Where, for example, counsel has already learned about a defendant’s
life in vivid detail, counsel cannot be “fault[ed] . . . for failing to find more.” Bobby v. Van
Hook, 558 U.S. 4, 11 (2009). That is because “there comes a point at which evidence from more
distant relatives can reasonably be expected to be only cumulative, and the search for it
distractive from more important duties.” Id.This is not, however, one of those cases. Rather, as discussed above, there is no
indication that Caudill’s counsel ever did the due diligence required to learn anything more than
the basic fact that Caudill’s father was a drunk, and “when he’d get drunk, he was mean.” R. 47-
10 (Trial Tr., Videotape #9 at 35) (Page ID #2054). That is far from an exhaustive account of the
situation, and simply knowing that a defendant had a father who was a mean drunk cannot
possibly shut off need for further investigation. After all, when the information known is basic
but promising, it should trigger further investigation by any reasonable attorney. See Wiggins,
539 U.S. at 527; Johnson, 544 F.3d at 600 (observing that defendant’s mother’s “‘bad
background’ is precisely what should have prompted the defense team to interview her”). Here,
No. 14-5418 Caudill v. Conover Page 30
Caudill’s counsel had discovered that there was an extremely powerful line of mitigation
evidence that would also support Caudill’s narrative with regard to the unresolved question of
who actually killed Lonetta White. See Caudill I, 120 S.W.3d at 648. There is no reasonable
explanation for Caudill’s counsel’s failure to undertake something more than the most cursory
glance into that line of investigation. See Foust, 655 F.3d at 330.
If counsel had undertaken an even slightly more in-depth investigation, counsel would
have discovered powerful and vivid details that would have told even more about the abuse that
Mary, Craig, and Rhonda discussed in their postconviction affidavits. Counsel could have
learned from Caudill’s grandmother, for example, that Caudill’s father “would get drunk every
weekend or so and would slap and hit Mary [Caudill’s mother] in front of the children” and that
they would at times have to pull Caudill’s father “off Mary and prevent him from hurting her.”
RCr 11.42 App. (Vol. 5, Ex. V, p. 592). Counsel could have learned from Caudill’s childhood
next-door neighbor that she had once seen Caudill’s father “drunk and shooting his rifle at Mary”
as she ran down the railroad “tracks in her nightgown at 2:00 am.” RCr 11.42 App. (Vol. 5, Ex.
W, p. 595). Counsel could have learned from Caudill’s cousin Barbara Watson that Caudill’s
father once “took Mary to the community dump where everyone took their garbage and where
people would go to shoot rats” and “threatened to shoot Mary” there, and that he once, while
holding a shotgun in a car in which Caudill was riding in the back seat, “made [Caudill] tell him
where Mary was.” RCr 11.42 App. (Vol. 5, Ex. X, p. 599). And counsel could have learned
about the brutal history of domestic violence that Caudill suffered from medical records and
from some of her ex-boyfriends themselves, id. (Vol. 5, Ex. Z, pp. 608–10) (Ray Towery,
discussing abuse Caudill suffered at the hands of another ex-boyfriend who beat her and
“encouraged [her] to begin prostituting”); id. (Vol. 5, Ex. AA, pp. 611–13) (Mike Sipple,
discussing Caudill’s reports that “her life was filled with alcoholic and abusive men”); id. (Vol.
5, Ex. BB, p. 614–17) (Ronnie Ray Hopkins, admitting to knocking Caudill unconscious and
playing a role in her becoming addicted to crack cocaine)—evidence that would have necessarily
bolstered and expanded upon the self-reports of such abuse recounted by Dr. Schilling, R. 47-10
(Trial Tr., Videotape #9 at 95–97) (Page ID #2114–16). See Skipper v. South Carolina, 476 U.S.
1, 8 (1986) (“The evidence petitioner was allowed to present . . . was the sort of evidence that a
No. 14-5418 Caudill v. Conover Page 31
jury naturally would tend to discount as self-serving. The testimony of more disinterested
witnesses . . . would quite naturally be given much greater weight by the jury.”).5
The Kentucky Supreme Court rejected this argument, reasoning that the fact “[t]hat
additional witnesses existed who would have corroborated or expanded upon [existing]
testimony does not amount to deficient performance by counsel.”6 Caudill II, 2009 WL
1110398, at *5. But this rationale, in light of counsel’s woeful job with the witnesses that
counsel did call, misses the point. Although it is possible that counsel could have learned
enough from existing witnesses to render these additional sources cumulative and unnecessary,
see, e.g., Van Hook, 558 U.S. at 11–12, the record reveals that counsel did not go to the trouble
of learning nearly enough from those witnesses. See Johnson, 544 F.3d at 603 (“Johnson’s
attorneys ‘were not in a position to make . . . reasonable strategic choice[s] . . . because the
investigation supporting their choice[s] was [itself] unreasonable.” (quoting Wiggins, 539 U.S. at
536)). No raw number of witnesses called can immunize counsel against unreasonably failing to
pursue additional evidence that would obviously be useful. See Rompilla, 545 U.S. at 378, 381–
83 (finding counsel’s performance deficient for failing to look into client’s felony convictions
even after speaking with five family witnesses and three mental-health experts); cf. Sears v.
Upton, 561 U.S. 945, 955 (2010) (“We certainly have never held that counsel’s effort to present
some mitigation evidence should foreclose an inquiry into whether a facially deficient mitigation
investigation might have prejudiced the defendant.”). What is significant here is that while
counsel called what sounds like a respectable number of witnesses during the trial’s sentencing
phase, the investigation that counsel seems to have done with regard to those witnesses’
5
To be clear, these were not far-flung witnesses whom counsel would have had to “scour the globe,”
Rompilla, 545 U.S. at 383, to find. They all appear to have lived nearby, and even the witness who is arguably least
obvious, Caudill’s cousin Barbara, would have “been easy to contact” by virtue of “liv[ing] only a few miles from
the family.” RCr 11.42 App. (Vol. 5, Ex. X, p. 598).
6
The Kentucky Supreme Court supported this argument in part by noting that “Caudill’s mother, brother,
and sister . . . gave details of Caudill’s kindness as a child, her struggle with substance abuse, and her history of
abusive relationships with men.” Caudill II, 2009 WL 1110398, at *5. But the transcript of “all three family
members[’]” testimony, as Caudill points out, “contain[s] no mention of Virginia’s domestic abuse, much less of the
repeated abuse by multiple men.” Appellant’s Br. at 59; see R. 47-10 (Trial Tr., Videotape #9 at 34–41) (Page ID
#2053–60) (Mary Caudill); id. at 46–48 (Page ID #2065–67) (Craig Caudill); id. at 49–51 (Page ID #2068–70)
(Rhonda Caudill Whitt). “This partial reliance on an erroneous factual finding further highlights the
unreasonableness of the state court’s decision.” Wiggins, 539 U.S. at 528.
No. 14-5418 Caudill v. Conover Page 32
testimony was so perfunctory that it cannot reasonably be said that no further investigation was
necessary. Counsel had an obligation to follow reasonably available additional leads, and
counsel did not meet this obligation.7
The nature of Caudill’s guilt and sentencing theories further reveal that Caudill’s
counsel’s “failure to investigate thoroughly . . . resulted from inattention, not reasoned strategic
judgment.” Wiggins, 539 U.S. at 526. As noted above, we must defer to “strategic choices made
after thorough investigation,” Strickland, 466 U.S. at 690, but no such deference is owed where
defense counsel’s choices not to learn more are not themselves reasonable, id. at 691; Wiggins,
539 U.S. at 521–22. Where, for example, a particular line of inquiry would conflict with a
planned defense theory or likely yield damaging information, trial counsel has leeway to make
tactical decisions to follow that line of inquiry no further. See, e.g., Wong v. Belmontes, 558 U.S.
15, 25–28 (2009); Burger v. Kemp, 483 U.S. 776, 793–95 (1987); Darden v. Wainwright,
477 U.S. 168, 186 (1986); Strickland, 466 U.S. at 699. By contrast, where additional mitigating
evidence would reinforce a planned or anticipated argument, see Wiggins, 539 U.S. at 525, 535,
or rebut an easily anticipated prosecution argument, see Rompilla, 545 U.S. at 383, counsel’s
failure to investigate further is highly suspect.
In this case, counsel clearly had launched down the road of arguing that Caudill’s
troubled childhood and abusive father mitigated her guilt. Those theories fit extremely well with
the residual doubt about who between Caudill and Goforth had actually committed the murder
and Caudill’s corresponding argument that Goforth was one more in a long line of violent,
domineering men who had abused and controlled her. See, e.g., R. 47-10 (Trial Tr., Videotape
#9 at 179–92) (Page ID #2198–2211). Caudill’s trial counsel thus “had every reason to develop
7
Caudill also challenges defense counsel’s failure to call Dr. Allen, the neuropsychologist. See, e.g.,
Appellant’s Br. at 60. Here, I agree with the majority. Allen’s report contained information that could have been
useful to Caudill’s mitigation, but also included the potentially harmful observation that Caudill had “denied that her
father was in any way abusive to her or her siblings” in their interview. RCr 11.42 App. (Vol. 6, Ex. II, p. 684). To
be clear, that statement to Allen does not necessarily discredit Caudill’s mitigation case: Caudill would not have
been the first capital defendant to provide falsely “obstructive” information to her defense team, see, e.g., Rompilla,
545 U.S. at 381, and victims of childhood abuse often deny or try to conceal such abuse, see Phyllis L. Crocker,
Childhood Abuse and Adult Murder: Implications for the Death Penalty, 77 N.C. L. REV. 1143, 1196–97 (1999).
Nevertheless, it is hard to impugn a defense attorney’s strategic choice to keep the statement away from the jury
given the centrality of that abuse to Caudill’s mitigation case. The Kentucky Supreme Court’s rejection of this
particular argument was reasonable.
No. 14-5418 Caudill v. Conover Page 33
the most powerful mitigation case possible.” Wiggins, 539 U.S. at 526. His failure to do so
betokens a “halfhearted mitigation case,” id., rather than a “tactical judgment not to present
mitigating evidence . . . and to pursue an alternative strategy instead,” id. at 521. In my view,
then, the Kentucky Supreme Court’s ruling that counsel’s performance was constitutionally
sufficient was an unreasonable application of clearly established law.
B. Prejudice
To satisfy the prejudice prong of the Strickland test, a petitioner “must show that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. In the case of a death
sentence, that means “a reasonable probability that at least one juror would have struck a
different balance” and voted against imposing death. Wiggins, 539 U.S. at 537. We analyze this
question by “reweigh[ing] the evidence in aggravation against the totality of available mitigating
evidence.” Id. at 534. And because the Kentucky Supreme Court did not reach this prong, we
consider the question de novo. See id. at 534; Hodges, 727 F.3d at 537.
As we have summarized the rules governing this analysis:
“[I]n order to establish prejudice, the new evidence that a habeas petitioner
presents must differ in a substantial way—in strength and subject matter—from
the evidence actually presented at sentencing.” Hill v. Mitchell, 400 F.3d 308,
319 (6th Cir.), cert. denied, 546 U.S. 1039 (2005). In other cases, we have found
prejudice because the new mitigating evidence is “different from and much
stronger than the evidence presented on direct appeal,” “much more extensive,
powerful, and corroborated,” and “sufficiently different and weighty.” Goodwin
v. Johnson, 632 F.3d 301, 328, 331 (6th Cir. 2011). We have also based our
assessment on “the volume and compelling nature of th[e new] evidence.”
Morales v. Mitchell, 507 F.3d 916, 935 (6th Cir. 2007). If the testimony “would
have added nothing of value,” then its absence was not prejudicial. Van Hook,
558 U.S. at 12. In short, “cumulative mitigation evidence” will not suffice.
Landrum v. Mitchell, 625 F.3d 905, 930 (6th Cir. 2010), cert. denied, 565 U.S.
830 (2011).
Foust, 655 F.3d at 539.
No. 14-5418 Caudill v. Conover Page 34
Here, Caudill’s evidence does “differ in a substantial way—in strength and subject
matter—from the evidence actually presented at sentencing.” Hill, 400 F.3d at 319. To begin
with, the evidence that counsel failed to discover and elicit is both more powerful, and expands
into more disturbing themes, than what came out in testimony: instead of painting Caudill’s
father as a mean drunk who later pulled himself together, it paints him as a monster who exposed
Caudill to extraordinary trauma and violence from an early age. Although at a high-enough level
of generality this evidence can be categorized under the broad heading of “childhood abuse,” that
is true of much noncumulative evidence. See Johnson, 544 F.3d at 604 (finding prejudice where
defense uncovered abuse by mother but not by grandmother); see also Foust, 655 F.3d at 540(“Because the facts adduced at the mitigation hearing on this point were neither numerous nor
detailed, we conclude that the new evidence is substantially different and not cumulative.”). The
evidence that counsel failed to find and elicit here “reveals far more than ‘minor additional
details.’” Foust, 655 F.3d at 545 (quoting Van Hook, 558 U.S. at 12). Rather, it differs in both
“strength and subject matter,” Hill, 400 F.3d at 319, by providing vivid detail about Caudill’s
father, showing that he was not only mean and at times physically abusive, but that he regularly
brandished weapons—including deadly weapons—at his wife and their children. “Far from
being cumulative, the new evidence paints an altogether different”—and darker—picture of
Caudill’s childhood and relationships with men since. Foust, 655 F.3d at 539.
The testimony and records that counsel failed to discover and present also differed from
what was already introduced by corroborating Caudill’s own claims, relayed through Dr.
Schilling’s testimony, R. 47-10 (Trial Tr., Videotape #9 at 95–97) (Page ID #2114–16), about
the abuse that Caudill suffered at the hands of various domestic partners throughout her life. The
Supreme Court has made clear, however, that evidence is not cumulative when it corroborates
testimony “that a jury naturally would tend to discount as self-serving,” particularly when that
evidence goes to an issue that is materially in dispute. See Skipper, 476 U.S. at 8. Here, the jury
was offered only Caudill’s own account—recounted more clinically, via Schilling’s expert
testimony—of the abuse that she suffered at the hands of violent male partners. Given that
Caudill’s case hinged in part on arguing that Goforth was principally responsible for the killing,
see, e.g., Caudill I, 120 S.W.3d at 648, there is ample reason that a jury might have discredited
Caudill’s own reports of the viciousness of her former male companions. Evidence from those
No. 14-5418 Caudill v. Conover Page 35
former male companions—“who would have had no particular reason to be favorably
predisposed toward” admitting their own guilt, see Skipper, 476 U.S. at 8—would have
powerfully and distinctly corroborated Caudill’s claims, as would the medical records
themselves. Thus, there is no reason to deem those records cumulative.
The majority is right that we must “keep in mind the State’s evidence on the other side of
the scale,” Maj. Op. at 12, but its weighing goes astray. First, that Caudill “dated White’s son,
and White gave Caudill money many times before,” id., cuts both ways: it would make just as
much sense to assume that Goforth, a stranger with no sentimental connection to White, was the
more likely culprit, especially given Caudill’s lack of any violent history and Goforth’s own
appalling attempt to claim “that an unidentified African-American male had assisted Caudill in
the commission of the crimes (an assertion he admitted at trial was a fabrication),” Caudill I,
120 S.W.3d at 650. Second, though three Commonwealth witnesses offered inculpatory hearsay
testimony, Maj. Op. at 12, each of these witnesses had credibility issues that were litigated on
appeal, see, e.g., R. 34 (Dist. Ct. Op. & Order at 13–19, 36–48) (Page ID #444–50, 467–479),
and none of these three witnesses provided undisputed testimony rendering Caudill’s primary
guilt a foregone conclusion.8 Third, while the majority observes that “at least some jurors
thought that Caudill was the aggressor rather than the dupe,” Maj. Op. at 14, that fact is of
limited relevance. The standard for prejudice is not whether the whole (or even a majority of
the) jury would have decided to eschew a death sentence, but rather whether “at least one juror
would have” done so. Wiggins, 539 U.S. at 537 (emphasis added).
While identifying two “theor[ies] for leniency” that Caudill’s mitigation case
“implicated”—Caudill’s addiction and Caudill’s childhood abuse, Maj. Op. at 8—the majority
also misses a crucial, and complementary, third: residual doubt about guilt. As noted above, the
8
As the majority’s opinion suggests, the most damning of these witnesses was Julia Davis, who testified
that Caudill had later mocked the dying victim. See R. 47-7 (Trial Tr., Videotape #6 at 254) (Page ID #1512). But
Davis was one of two jailhouse informants—each of whose hearsay statements Caudill disputed from the witness
stand, R. 47-8 (Trial Tr., Videotape #7 at 72–79) (Page ID #1638–45)—and Davis “acknowledged [to the jury] that
she had received consideration in the form of a lesser sentence for her cooperation with the prosecution,” R. 34
(Dist. Ct. Op. & Order at 19) (Page ID #450). Moreover, Caudill testified that Davis specifically had a vendetta
against her. R. 47-8 (Trial Tr., Videotape #7 at 72–74, 123–24) (Page ID #1638–40, 1689–90). In short, what
majority declares happened “[a]t bottom,” Maj. Op. at 13, is in actuality a permissible conclusion to draw, but by no
means the indisputable conclusion that the majority implies it to be.
No. 14-5418 Caudill v. Conover Page 36
jury never resolved whether Caudill or Goforth had taken the lead in perpetrating the killing:
each had accused the other of serving as the principal during the trial, Caudill I, 120 S.W.3d at
648, but the jury simply convicted both of “murder—principal or accomplice,” id. at 666. And
whatever residual doubt the jury must have had about Caudill’s primary guilt could not only
logically coexist with compassion for her childhood abuse, see Wiggins, 539 U.S. at 535, but
might also have been substantially bolstered by further evidence that Goforth was one more in a
long line of violent, maybe even murderous men under whose sway Caudill had fallen.
It is not mere speculation that these two mutually reinforcing mitigation themes—
residual doubt about guilt and limited culpability based on childhood trauma—would, if
adequately developed, have yielded a reasonable probability of a different result. We know from
empirical evidence that these two themes do tend to impact capital jurors’ reasoning. See
Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think?,
98 COLUM. L. REV. 1538, 1561–66 (1998) (presenting data indicating that “‘[r]esidual doubt’
over the defendant’s guilt is the most powerful ‘mitigating’ fact,” id. at 1563, and that
“[c]ircumstances over which the defendant had no control and that may have helped form (or
misform) his character,” such as childhood abuse, “ha[ve] a noticeable but limited mitigating
effect,” id. at 1565).
This potent combination also distinguishes the prejudice analysis in this case from that of
a case like Van Hook. There, as the majority notes, Maj. Op. at 13, the Supreme Court ruled that
there was no prejudice from counsel’s failure to present testimony “that [Van Hook’s] father hit
Van Hook frequently and tried to kill Van Hook’s mother,” given that “the trial court . . . was
already aware that his father had a violent nature, had attacked Van Hook’s mother, and had
beaten Van Hook at least once,” Van Hook, 558 U.S. at 12. Counterbalancing these details
(which were, for the reasons discussed above, more cumulative than what Caudill’s counsel
missed here) was Van Hook’s undisputed and undivided guilt. Id. at 13. As the Court explained,
“Van Hook’s confession made clear, and he never subsequently denied, . . . that he was the sole
perpetrator of the crime”; moreover, he “had previously pursued the same strategy—of luring
homosexual men into secluded settings to rob them—many times since his teenage years, and he
employed it again even after [the victim’s] murder in the weeks before his arrest.” Id.No. 14-5418 Caudill v. Conover Page 37
Caudill’s story is very different. There was no crime even remotely like this one in her
past, but there was an almost endless series of violent men who traumatized, abused, and
controlled her. Despite the hearsay evidence offered by the three questionable Commonwealth
witnesses discussed above, Caudill herself maintained throughout that she was not the primary
perpetrator. (Unlike Goforth, Caudill also never sought to shift blame onto a completely
innocent third party. See Caudill I, 120 S.W.3d at 650.) And indeed, the jury never did decide
which of the two was primarily responsible. See Caudill I, 120 S.W.3d at 666. There is thus, as
I read this case on de novo review, “a reasonable probability that at least one juror would have
struck a different balance” if counsel had put on a constitutionally adequate mitigation case. See
Wiggins, 539 U.S. at 537.
***
The Supreme Court’s Sixth Amendment right-to-counsel jurisprudence is premised on
the basic notion that all persons must be guaranteed “a fair trial.” Strickland, 466 U.S. at 685.
That means a trial in which the “adversarial testing process works to produce a just result under
the standards governing decision,” including with regard to sentencing. Id. at 687. Modern
constitutional regulation of capital sentencing, meanwhile, is premised in part on the guarantee
of “particularized consideration of relevant aspects of the character and record of each convicted
defendant before the imposition upon him of a sentence of death,” Woodson v. North Carolina,
428 U.S. 280, 303 (1976) (plurality opinion)—that all capital defendants will be treated “as
uniquely individual human beings, [not] as members of a faceless, undifferentiated mass to be
subjected to the blind infliction of the penalty of death,” id. at 304.
Mitigation evidence is particularly important to the adversarial testing surrounding this
individualized consideration “because of the belief, long held by this society, that defendants
who commit criminal acts that are attributable to a disadvantaged background, or to emotional
and mental problems, may be less culpable than defendants who have no such excuse.” Penry v.
Lynaugh, 492 U.S. 302, 319 (1989) (quoting California v. Brown, 479 U.S. 538, 545 (1987)
(O’Connor, J., concurring)). If capital punishment is to “be limited to those offenders who
commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes
them ‘the most deserving of execution,’” Roper v. Simmons, 543 U.S. 551, 568 (2005) (quoting
No. 14-5418 Caudill v. Conover Page 38
Atkins v. Virginia, 536 U.S. 304, 319 (2002)), then capital juries must receive accurate and
competent mitigation presentations from capital defense attorneys.
As deferential as we must be to all ineffective-assistance claims, see Strickland, 466 U.S.
at 689, and especially to those on AEDPA review, see Pinholster, 563 U.S. at 190, I believe that
Caudill’s ineffective-assistance claim overcomes the high bars that it faces. The majority,
applying the same standards, sees things differently. But leaving aside for a moment the
formalities of our standards, I also wonder whether any reasonable person would, if they or an
acquaintance were on trial for their life, accept as satisfactory the representation that Caudill
received. Looking at the completely cursory (and at times self-defeating) testimony elicited from
Caudill’s close family members (evidently thrown on the stand with no preparation), the
mitigation specialist’s panicked pleas for help, and counsel’s failure to discover (much less
present) the readily available vivid accounts of the abuse that Caudill repeatedly suffered at the
hands of violent and dominating men (which could have significantly furthered residual doubts
about her primary guilt), I cannot imagine that the answer is yes. And so even if this is a close
case, that signifies nothing especially good about the representation that Caudill received, and
quite a bit about the paltriness of what binding precedent has understood the Sixth Amendment
to demand.
But because I believe that Caudill’s trial counsel fell unreasonably short of even the low
constitutional standards at issue, and because I believe that this deficiency prejudiced her
chances of avoiding a death sentence, I respectfully dissent.