Thomas Clyde Bowling, Jr. v. PHILLIP PARKER, Warden

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0330P (6th Cir.)
File Name: 03a0330p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
THOMAS CLYDE BOWLING,
JR.,
Petitioner-Appellant,
v.
PHILLIP PARKER, Warden,
Respondent-Appellee.
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No. 01-5832
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 99-00236—Karl S. Forester, Chief District Judge.
Argued: December 10, 2002
Decided and Filed: September 17, 2003
Before: MOORE, GILMAN, and GIBBONS, Circuit
Judges.
_________________
COUNSEL
ARGUED: Elizabeth R. Stovall, COMMONWEALTH OF
KENTUCKY, DEPARTMENT OF PUBLIC ADVOCACY,
LaGrange, Kentucky, for Appellant. Ian G. Sonego, OFFICE
OF THE ATTORNEY GENERAL, Frankfort, Kentucky, for
2 Bowling v. Parker No. 01-5832
Appellee. ON BRIEF: Elizabeth R. Stovall,
COMMONWEALTH OF KENTUCKY, DEPARTMENT OF
PUBLIC ADVOCACY, LaGrange, Kentucky, Susan J.
Balliet, DEPARTMENT OF PUBLIC ADVOCACY,
Frankfort, Kentucky, for Appellant. Ian G. Sonego, OFFICE
OF THE ATTORNEY GENERAL, Frankfort, Kentucky, for
Appellee.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Thomas Clyde
Bowling, Jr. (“Bowling”) appeals the district court’s
judgment denying both his petition for a writ of habeas corpus
and his request for an evidentiary hearing in conjunction with
that petition. Bowling was convicted in state court of
murdering Tina and Eddie Earley and sentenced to death. His
conviction and death sentence were affirmed by Kentucky
courts on direct appeal and in post-conviction proceedings.
In the district court and now on appeal, Bowling raises
numerous claims of error. He contends that he was denied
proper jury instructions, given ineffective assistance of
counsel, deprived of an evidentiary hearing, denied a fair jury,
subjected to numerous instances of prosecutorial misconduct,
and given a sentence that was constitutionally
disproportionate. For the reasons that follow, we AFFIRM
the decision of the district court below, and deny Bowling’s
petition for a writ of habeas corpus and his request for an
evidentiary hearing.
I. BACKGROUND
A. Factual Background
Early in the morning on April 9, 1990, Eddie and Tina
Earley were shot to death in their automobile in a parking lot
outside a Lexington dry-cleaning establishment. Their two-

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No. 01-5832 Bowling v. Parker 3
year-old son Christopher was also shot, but not fatally. Police
arriving at the scene found several witnesses offering varied
observations of the shooter, collected several bullets from
inside and outside the vehicle, and recovered debris consistent
with a car collision. After analyzing the debris, the police
determined that the Earleys’ car must have been hit by a 1981
light blue Chevrolet Malibu. They also determined that a
1981 Malibu was registered in the county to Bowling. The
police, however, did not seek to arrest Bowling at that point;
instead they pursued several theories of who could have
murdered the Earleys.
On the following day, April 10, 1990, police received a
telephone call from Bowling’s sister, Patricia Gentry. Gentry
and her mother, Iva Lee Bowling, were worried because they
had not seen Bowling, who was affectionately known as T.C.,
since approximately 6:00 a.m. the preceding day. Watching
the news reports, they realized that Bowling’s car matched the
description of the suspected killer’s car. Searching for
Bowling, the two women drove to property owned by the
family in rural Powell County. There they discovered
Bowling’s car. Bowling, however, was not there. When they
returned to Gentry’s Knoxville home, they discovered
Bowling asleep on the couch. After consulting with their
minister, they called the police, who came and picked
Bowling up without incident. The police then recovered
Bowling’s car from the Powell County property, where they
also discovered a buried .357-magnum revolver.
Bowling was represented at trial by three attorneys:
Baldani, Summers, and Richardson. Prior to trial, these
attorneys had Bowling undergo a neurological and
psychological evaluation by Dr. Donald Beal.
B. The Trial
On December 10, 1990, the trial began. The court’s stated
goal in voir dire was to qualify forty-four of the ninety-nine
pooled jurors. Qualifying forty-four jurors would allow the
4 Bowling v. Parker No. 01-5832
defendant to have eighteen peremptory challenges and the
government twelve, with twelve people remaining to be jurors
and two to be alternates. Later, however, the court stated that
it was worried that the jury pool would be too small, so it
ended up qualifying forty-eight jurors, but then struck the four
extra jurors.
On December 12, the guilt phase of the trial began. The
Commonwealth produced twenty-five witnesses. There were
three eye-witnesses to the crime. The first, Larry Turner,
never saw the shooter; he went to the crime scene after
hearing what he thought was a car backfiring. By the time he
reached the car, the killer had already fled, and Turner
observed only the Earleys’ dented car, the dead bodies, and
the child crying. David Boyd testified that while stopped at
a stoplight, he looked back to see two cars in the parking lot
and a man firing a gun into one of them. According to Boyd,
the shooter then stood and looked at the scene before driving
off. Boyd described the car as being a light blue 1979 or
1980 Malibu and described the shooter as being six feet tall
with a medium build, wearing a black jacket and a brimmed
hat. The third eyewitness, Norman Pullins, who had seen the
events from a nursing home across the street, could not be
found by either party. By agreement of the parties, the police
played their audiotape of an interview with Pullins that took
place the morning of the shootings. The police next testified
regarding the crime scene and presented to the jury
photographs and a videotape depicting the scene in
considerable detail.
The Commonwealth then focused on the evidence
discovered at the Bowling property in Powell County. One
officer testified that he found Bowling’s Malibu in the thicket,
and an orange jacket, an orange Little Caesar’s T-shirt from
Bowling’s workplace, and a black Rangers’ hat in a small
shed. The officer also found an unused outhouse on the
property into which several empty alcohol bottles had been
thrown. Another officer testified to finding the gun on the
property. Lastly, an officer testified that he retrieved

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No. 01-5832 Bowling v. Parker 5
Bowling’s personal effects from his sister’s house, including
a black jacket.
The state then introduced expert testimony. A forensic
pathologist testified that the Earleys had no chance of
surviving the injuries that they sustained. A police
automotive expert testified that the glass, plastic, and chrome
debris from the crime scene matched Bowling’s car. Another
expert testified that paint from the Earleys’ car had rubbed off
(because of the accident) onto Bowling’s car, and that paint
from Bowling’s car had also rubbed off on the Earleys’ car.
The expert unambiguously stated that tests on the paint
samples demonstrated that it was Bowling’s car that had
rammed into the Earleys’ vehicle. A state ballistics expert
identified the recovered gun as a Smith and Wesson .357 and
stated that the bullets shot from it would have identical
markings to those recovered from the crime scene. On cross-
examination, however, he admitted that there may be millions
of guns that would have left marks like those on the bullets
found at the crime scene.
The Commonwealth also presented testimony from Clay
Brackett that he had sold a similar-looking Smith and Wesson
.357 to Bowling a few days before the killings. There were
also two witnesses, Jack Mullins and Jack Strange, who
placed Bowling on the road in front of the property in Powell
County the evening of the murders.
The Commonwealth then called Bowling’s family to testify
to the events leading up to the telephone call that they made
to the police. Bowling’s family testified that Bowling had
been seriously depressed in the weeks before the shootings.
Bowling was also obsessed with death. During a drive with
his mother a few days before the shooting, Bowling told her
that his time had run out and that she should look for him at
the family property in Powell County if he disappeared.
During this drive, Bowling had stopped for approximately
thirty minutes in a parking lot, behind the nursing home
property across from the dry-cleaning place where the Earleys
6 Bowling v. Parker No. 01-5832
1In an interview with a mental health worker held while Bowling was
in jail, Bo wling claimed that he “ha d no recollection o f the day of the
crime.” J.A. at 54 (Pet. Br. in Dist. Ct.).
worked. Bowling had also shown to his family the gun that
he had recently purchased from Brackett.
The defense presented no witnesses, choosing not to
present the expert testimony of Dr. Beal. Bowling’s counsel
asked for time to inform Bowling again of his right to testify,
but after consulting with Bowling, counsel announced that
Bowling would not testify.1 The defense rested on their
cross-examinations of the witnesses. The defense had
brought out Bowling’s erratic behavior during the weekend
before the shootings. Brackett admitted, while he was being
cross-examined, that he traded in handguns without keeping
records and had poor memory and hearing. David Boyd
admitted that he may have told a police detective that the
shooter had long brown hair, a dark complexion, and possibly
a mustache — none of which describe Bowling. Though
defense counsel did not gain much ground from the expert
witnesses, the Commonwealth’s ballistics expert did concede
that the .357-magnum was one of perhaps millions of guns
that could have fired the bullets that killed the Earleys.
Defense counsel also established that none of Bowling’s
possessions, including his car, had any blood on them, that
there were no fingerprints found on the gun or at the crime
scene, and that the only lead residue on Bowling’s belongings
was inside the left pocket of his jacket and could have come
from a gun or from bullets.
The defense asked for jury instructions on extreme
emotional disturbance, circumstantial evidence, and reckless
homicide. The trial court denied these instructions. The jury
found Bowling guilty of intentionally murdering Tina and
Eddie Earley and assaulting their son Christopher.

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No. 01-5832 Bowling v. Parker 7
Before the penalty phase began, Bowling, his defense
counsel, and the prosecution met because Bowling had filed
a pro se motion to discharge his attorneys. Bowling stated
that he was angry with his attorneys because they had
essentially presented no defense on his behalf. Bowling
claimed that he did not have ample opportunity to meet with
his attorneys; Bowling told the state court judge that his
attorneys had not spent more than a total of one hour with him
throughout the litigation. Bowling said that there were many
witnesses who could have been called to testify — although,
when questioned, he could not give the names of any such
witnesses or list any particular act that his attorneys failed to
do. Bowling stressed, however, that he had no time to tell his
attorneys of witnesses who might have been called, because
his attorneys had not met with him. Bowling said that he felt
that his attorneys did not take his case seriously, and that they
once remarked to another person in front of Bowling that they
did not have a defense. The district court denied his motion
to discharge his attorneys.
The penalty phase then began. The defense called six
witnesses to testify. There were three non-family members:
a former co-worker of Bowling and two jail employees, all of
whom spoke kindly of Bowling. The defense also called
Bowling’s mother, his sister, and his son, who discussed their
love for Bowling, his mental and emotional deterioration in
the weeks before the killings, his failed marriage, and his
having only a ninth-grade education and being of low mental
ability. Bowling did not testify.
The trial court denied Bowling’s request for specific
mitigating instructions on extreme emotional disturbance,
mental illness, intoxication, and model jail conduct, but gave
a general mitigating instruction. The trial court also
instructed the jurors on one statutory aggravating factor, that
of intentionally causing multiple deaths. The jury found that
the aggravating factor applied and recommended two death
sentences. The trial judge sentenced Bowling to death.
8 Bowling v. Parker No. 01-5832
C. Post-Trial Case History
Bowling’s conviction and sentences underwent mandatory
review by the Kentucky Supreme Court pursuant to Kentucky
Revised Code § 532.075. The Kentucky Supreme Court
affirmed his conviction and sentence on September 30, 1993.
Bowling v. Commonwealth, 873 S.W.2d 175 (Ky. 1993)
[“Bowling I”]. Two justices dissented. The dissenting
justices argued that Bowling should have been given an
instruction on extreme emotional disturbance in the guilt and
penalty phases, id. at 182-85 (Leibson, J., dissenting), and one
justice also would have reversed the conviction because of
prosecutorial misconduct, id. at 185-87 (Burke, S.J.,
dissenting).
Bowling then began his post-conviction proceedings in a
state circuit court. Here, however, Bowling made a
potentially significant procedural error. On February 28,
1995, he filed a notice of intent to file a motion for post-
conviction relief under Kentucky Rule of Criminal Procedure
(known as “RCr”) 11.42. However, he did not file the motion
itself at that time. Governor Patton set Bowling’s execution
date for February 1, 1996. Eventually, the Supreme Court of
Kentucky determined that Bowling’s execution could not be
stayed without the actual motion being filed. Bowling v.
Commonwealth, 926 S.W.2d 667, 669 (Ky. 1996). So on
January 26, 1996, Bowling’s counsel filed a rushed but
formal RCr 11.42 motion, and asked for more time to file an
amended or supplemental motion. On February 8, 1996, the
state circuit court granted the request, and gave Bowling 120
additional days running from the initial deadline, January 26,
1996. On May 28, 1996, a supplemental RCr motion was
filed, but it was not verified as required by Kentucky law. On
June 6, 1996, clearly after the 120-day period, Bowling filed
the revised version as a verified supplemental motion. On
October 1, 1996, the circuit court ordered both versions of the
supplemental motion stricken, the first for being unverified
and the second for being untimely, which ostensibly
prevented those claims from being addressed. The state

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No. 01-5832 Bowling v. Parker 9
circuit court recognized its power to allow amendment for
equitable reasons but declined to exercise that power. The
circuit court found against Bowling on the merits on all the
remaining claims.
The Kentucky Supreme Court unanimously affirmed the
circuit court’s decision. Bowling v. Commonwealth, 981
S.W.2d 545 (Ky. 1998) [“Bowling II”]. The Kentucky
Supreme Court dismissed the claims Bowling raised in his
initial RCr petition as not having merit. The Kentucky
Supreme Court then addressed the claims raised in Bowling’s
struck supplemental motions. The Kentucky Supreme Court
prefaced its analysis of Bowling’s claims with the following
statement:
Appellant presents a number of other issues in his
supplemental RCr 11.42 motion. Notwithstanding that
his supplemental motion was struck by the trial court, in
the interest of judicial economy we will review the seven
additional claims of ineffective assistance of counsel
raised in the motion.
Id. at 551. The Kentucky Supreme Court then denied
Bowling’s claims on the merits.
Bowling filed a motion for a writ of habeas corpus with the
district court on August 12, 1999. Bowling moved for an
evidentiary hearing with the district court on some issues, but
this motion was denied. Ultimately, the district court denied
the writ. Bowling v. Parker, 138 F. Supp. 2d 821 (E.D. Ky.
2001) [“Bowling III”]. The district court granted a certificate
of appealability as to all issues.
II. ANALYSIS
A. The Legal Standards of AEDPA
This court reviews de novo the legal conclusions of a
district court denying habeas relief. Palazzolo v. Gorcyca,
10 Bowling v. Parker No. 01-5832
244 F.3d 512, 515 (6th Cir.), cert. denied, 534 U.S. 828
(2001). As Bowling’s habeas petition was filed on
August 12, 1999, it is governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). Pursuant
to AEDPA, relief is available with respect to claims
adjudicated on the merits in state court only if the
adjudication:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that 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)(1)-(2). Moreover, the findings of a state
court are presumed to be correct and can only be contravened
if Bowling can show by clear and convincing evidence that
they are erroneous. See 28 U.S.C. § 2254(e)(1). The
presumption of correctness also attaches to the factual
findings of a state appellate court based on the state trial
record. See Sumner v. Mata, 449 U.S. 539, 546-47 (1981).
B. Procedural Default
Before addressing the merits of Bowling’s appeal, we must
address the state’s contention that some of Bowling’s claims
are procedurally defaulted. The government argues that
because Bowling’s supplemental RCr motions were struck by
the trial court, the claims that appear only therein are
defaulted and cannot be revived in a federal habeas corpus
action.
We reject the state’s contention that these claims have been
procedurally defaulted. It is clear that if a petitioner defaults
his federal claims in state court by failing to comply with an
adequate and independent state procedural rule, federal

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No. 01-5832 Bowling v. Parker 11
habeas relief is barred unless the petitioner can show cause for
the default and actual prejudice, or a resultant fundamental
miscarriage of justice. Coleman v. Thompson, 501 U.S. 722,
750 (1991). This court recently spoke to how courts are to
examine an allegation of procedural default:
First, the court must determine whether there is such a
procedural rule that is applicable to the claim at issue and
whether the petitioner did, in fact, fail to follow it.
Second, the court must decide whether the state courts
actually enforced its procedural sanction. Third, the
court must decide whether the state’s procedural
forfeiture is an “adequate and independent” ground on
which the state can rely to foreclose review of a federal
constitutional claim. . . . And, fourth, the petitioner must
demonstrate . . . that there was “cause” for him to neglect
the procedural rule and that he was actually prejudiced
by the alleged constitutional error.
Greer v. Mitchell, 264 F.3d 663, 673 (6th Cir. 2001) (citations
omitted) (citing, inter alia, Maupin v. Smith, 785 F.2d 135,
138 (6th Cir. 1986)), cert. denied, 535 U.S. 940 (2002). At
issue here is the second prong of the Maupin test; Bowling
questions whether the Kentucky Supreme Court actually
enforced its procedural sanction. In this regard, the Supreme
Court has stated that “[t]he mere existence of a basis for a
state procedural bar does not deprive [federal courts] of
jurisdiction; the state court must actually have relied on the
procedural bar as an independent basis for its disposition of
the case.” Caldwell v. Mississippi, 472 U.S. 320, 327 (1985);
see also Coleman, 501 U.S. at 735 (requiring that the last
state court rendering a reasoned judgment on the matter
“clearly and expressly” state that its judgment rests on such
a procedural bar for the doctrine of procedural default to
apply).
The language used by the Kentucky Supreme Court in its
opinion reveals that it did not clearly rely on Bowling’s
procedural default to dismiss the claims raised in his
12 Bowling v. Parker No. 01-5832
supplemental motion. After noting that the claims were
raised only in the struck supplemental pleadings, the
Kentucky Supreme Court went on to consider the merits of
those claims, stating, “Notwithstanding that his supplemental
motion was struck by the trial court, in the interest of judicial
economy we will review the seven additional claims of
ineffective assistance of counsel raised in the motion.”
Bowling II, 981 S.W.2d at 551.
There are two reasonable interpretations to which this
statement is susceptible. The Kentucky Supreme Court may
have been relying on the procedural default. Its dismissal of
Bowling’s claims on the merits would then be considered an
alternative holding. In such a situation, we would consider
the claims in the struck motion procedurally defaulted. See
Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) (stating that “a
state court need not fear reaching the merits of a federal claim
in an alternative holding”); Coe v. Bell, 161 F.3d 320, 330
(6th Cir. 1998). However, the Kentucky Supreme Court may
have well been using the word “notwithstanding” to ignore
the issue of possible procedural default and consider the
claims on the merits. In such a case, Bowling’s claims would
not be defaulted because the state court would not have been
relying on the procedural bar in its disposition of the case.
We find both interpretations eminently plausible. The use
of the word “notwithstanding” could suggest either that the
Kentucky Supreme Court was enforcing the procedural
default or that it was waiving it. Moreover, the possibility
that the Kentucky Supreme Court was in fact waiving the
default is amplified by the fact that it went on to consider
Bowling’s claims on the merits. See Harris, 489 U.S. at 266
n.13 (noting that “[w]hile it perhaps could be argued that this
statement would have sufficed had the state court never
reached the federal claim,” the fact that “the state court
clearly went on to reject the federal claim on the merits”
makes it less clear that the state court actually relied on the
procedural bar). Ultimately, the fact that both interpretations
are sensible settles this issue in Bowling’s favor, for there

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No. 01-5832 Bowling v. Parker 13
must be unambiguous state-court reliance on a procedural
default for it to block our review. See Gall v. Parker, 231
F.3d 265, 321 (6th Cir. 2000), cert. denied, 533 U.S. 941
(2001).
We therefore proceed to the merits of Bowling’s claims.
His contentions of error fall into six general categories. He
claims that he was denied proper jury instructions, his counsel
was constitutionally ineffective, he was improperly denied an
evidentiary hearing, the jury in his case was constitutionally
invalid, the prosecutors acted inappropriately towards him at
trial, and his death sentence was constitutionally
disproportionate.
C. Denial of Proper Jury Instructions
Bowling’s first claim for relief is his claim that he was
denied proper jury instructions in both the guilt and penalty
phases of his trial. Although Bowling’s claim that he was
entitled in the guilt phase to a jury instruction on extreme
emotional disturbance (“EED”) is the strongest claim he
brings in his habeas petition, we find it ultimately
unpersuasive. We therefore dismiss Bowling’s claim that he
was denied proper jury instructions.
1. Instructions in the Guilt Phase
Bowling claims that the trial court improperly failed to give
the jury a lesser-included-offense instruction in the guilt
phase. Bowling contends that the jury should have been
given an instruction on extreme emotional disturbance; if the
jury then had found extreme emotional disturbance, it would
have convicted Bowling only of manslaughter (rather than
murder). See KY. REV. CODE ANN. § 507.030(b) (defining
manslaughter as an intentional killing “under circumstances
which do not constitute murder because [the defendant] acts
under the influence of extreme emotional disturbance”).
14 Bowling v. Parker No. 01-5832
The Supreme Court has held that the failure to give a
lesser-included-offense instruction can violate due process.
See Beck v. Alabama, 447 U.S. 625 (1980). In Beck, the
defendant and his accomplice broke into the house of an
eighty-year-old man and tied him up. According to Beck, the
accomplice struck the man and killed him. Beck consistently
maintained that he did not kill the victim and that he had
never intended for the murder to occur. The state charged
him with “robbery-intentional killing,” a capital crime. Id. at
628. Pursuant to the applicable state statute, the trial judge
was prohibited from instructing the jury on the lesser-
included offense of “felony-murder,” a non-capital crime.
The jury convicted Beck of intentional murder, and he was
sentenced to death. The Supreme Court held that it is a denial
of due process for a jury to be deprived of the opportunity to
consider the lesser-included offense of felony-murder when
“the unavailability of a lesser included offense instruction
enhances the risk of an unwarranted conviction.” Id. at 638.
In this case, manslaughter is a lesser-included offense of
murder under Kentucky law. See Bray v. Commonwealth, 68
S.W.3d 375, 383 (Ky. 2002) (analyzing whether a defendant
should have received an instruction on the “lesser included
offense of first degree manslaughter” where he was convicted
of murder, but claimed that he was extremely emotionally
disturbed at the time of the homicide); see also KY. REV.
CODE ANN. § 507.030(b) (defining manslaughter as a lesser-
included offense of murder).
Nonetheless, while due process can require an instruction
on lesser offenses that are necessarily included in the greater
offense, due process does not require an instruction on a
lesser-included offense if the evidence does not support such
an instruction. Hopper v. Evans, 456 U.S. 605, 611 (1982).
Instead, “a Beck instruction is only required when ‘there was
evidence which, if believed, could reasonably have led to a
verdict of guilt of a lesser offense,’ but not the greater.”
Campbell v. Coyle, 260 F.3d 531, 541 (6th Cir. 2001)
(quoting Hopper, 456 U.S. at 610), cert. denied, 535 U.S. 975

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No. 01-5832 Bowling v. Parker 15
(2002). This constitutional requirement is virtually identical
to the Kentucky requirement that an instruction be given
when “‘a juror might entertain reasonable doubt as to the
defendant’s guilt of the greater offense, and yet believe
beyond reasonable doubt that the defendant is guilty of the
lesser offense.’” Jacobs v. Commonwealth, 58 S.W.3d 435,
446 (Ky. 2001) (citation omitted). The Kentucky Supreme
Court determined that the evidence at trial would not permit
a rational jury to find extreme emotional disturbance. See
Bowling I, 873 S.W.2d at 179 (discussing this claim). Given
the deference that we are required to give to the Kentucky
Supreme Court’s analysis of this question, we ask only
whether the Kentucky Supreme Court was unreasonable in its
conclusion that the evidence at trial would not permit a
rational jury to find extreme emotional disturbance. See
Campbell, 260 F.3d at 543 (noting that the question is
“whether the state court’s application of [the Beck] rule to
these facts was objectively unreasonable”).
To answer this question, however, we must discern the
meaning of the term, “extreme emotional disturbance.” This
is a question of state law. See Bennett v. Scroggy, 793 F.2d
772, 778 (6th Cir. 1986) (“A due process clause claim that
one is entitled to instructions on a lesser included offense can
be resolved only by determining what the elements of those
offenses are. Hence, the reviewing court must look first to the
state’s law.”). Kentucky law, at the time of Bowling’s case,
had explained EED as follows:
Extreme emotional disturbance is a temporary state of
mind so enraged, inflamed, or disturbed as to overcome
one’s judgment, and to cause one to act uncontrollably
from the impelling force of the extreme emotional
disturbance rather than from evil or malicious purposes.
It is not a mental disease in itself, and an enraged,
inflamed, or disturbed emotional state does not constitute
an extreme emotional disturbance unless there is a
reasonable explanation or excuse therefor, the
reasonableness of which is to be determined from the
16 Bowling v. Parker No. 01-5832
2W e note p arenthetically that this argument was adopted by two
justices of the Kentucky Supreme Court on Bowling’s direct ap peal.
Bowling I, 873 S.W .2d at 182-85 (Leibson, J., dissenting).
viewpoint of a person in the defendant’s situation under
circumstances as defendant believed them to be.
McClellan v. Commonwealth, 715 S.W.2d 464, 468-69 (Ky.
1986). Kentucky courts have explained that, to show EED,
there must be a triggering event — a “sudden and
uninterrupted” event that “triggers the explosion of violence
on the part of the criminal defendant.” Foster v.
Commonwealth, 827 S.W.2d 670, 678 (Ky. 1991) (holding
that a woman was not entitled to an EED instruction after she
murdered five individuals without a recent aggravating
incident, despite the fact that the woman had suffered
significant physical and emotional harm as a child and abused
drugs and alcohol). As a result, “extreme emotional
disturbance is not established by evidence of insanity or
mental illness, but require [sic] a showing of some dramatic
event which creates a temporary emotional disturbance as
opposed to a more generalized mental derangement.”
Stanford v. Commonwealth, 793 S.W.2d 112, 115 (Ky. 1990).
Bowling claims that, under the facts of his case and the
definition of EED used above, an EED instruction was
required. It is undisputed that Bowling’s car crashed into the
Earleys’ car in the Earley Bird Cleaners’ parking lot and that
the front right-hand side of Bowling’s car impacted the
driver’s side of the Earleys’ car. Bowling argues that this
accident was a triggering event that enraged Bowling,
overthrew his judgment, and caused him to get out of his car
and kill the Earleys. This theory, Bowling argues, would
explain the otherwise motiveless killing of the Earleys and
would also explain why Bowling did not simply get out of his
car and shoot the Earleys rather than damaging his own car
first.2

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No. 01-5832 Bowling v. Parker 17
3Under current Kentucky law, Bowling has the burden of proving
EED; the governm ent is not charged with proving its absence. See
Wellman v. Comm onw ealth, 694 S.W.2d 696, 697 (Ky. 1985). Bo wling
argues in his brief that the government should have had the burden of
proving an absence of EED at trial. Bowling cites a recent Sixth C ircuit
case that granted habeas relief on such grounds. See Gall v Parker, 231
F.3d 265, 288 -91 (6th Cir. 2000) (holding that the Kentucky Supreme
Court erroneously put the burden on the defendant to show EED when it
was actually the government’s obligation to prove a lack of EED ), cert.
denied, 533 U .S. 941 (2001 ). The salient difference between this case and
Ga ll, however, is that the trial and appeal in Ga ll took place in 198 0 while
the facts of this case occurred in 1 991 . In the intervening p eriod — in
1985, more specifically — the Kentucky Supreme Court explicitly shifted
the burd en of p roof on this issue to the defendant. See Wellman, 694
S.W.2d at 697 (overruling “those portions of [several cases] which declare
that the absence of extreme emotional distress is an essential element of
the crime of murder and require the Commonwealth to prove such
absence”). As a result, under Wellman, it was proper for the trial co urt to
put the burden of proving EED on Bow ling.
Bowling argues that the Wellman decision violated due process and
separation-of-powers principles by retro actively enlarging the scope of a
criminal statute. We, however, did not find the retroactivity argument
persuasive even in Wellman’s own habeas petition, Wellman v. Rees, No.
86-5988, 1987 WL 38211 (6th Cir. June 1, 19 87), cert. denied, 484 U.S.
968 (1987), and we do not find it persuasive now. W e therefore dismiss
this contention of error.
Bowling acknowledges that he has submitted no evidence
supporting his argument that an EED instruction was
necessary.3 He argues merely that we should infer from the
very fact that a car accident preceded the shootings that the
car accident must have triggered an uncontrollable rage that
caused the shootings.
The facts of this case do not support such an inference.
Bowling’s accident involved a parked car in a parking lot far
away from the street. It resulted in no physical injury to
Bowling and only minor damage to both cars. Bowling’s car
remained drivable. In fact, his car only suffered light damage
to its front right-hand side; according to expert testimony and
photographic evidence, only the right front fender and its
parking light assembly were damaged. As Bowling’s car was
18 Bowling v. Parker No. 01-5832
only impacted in the front right-hand side, it is clear that
Bowling would have been able to see the impending collision.
This suggests that Bowling either intentionally caused the
accident or at least had knowledge that a collision was
impending before it happened.
These facts make Bowling’s claim of EED grossly
implausible. Bowling has introduced no evidence, such as
that of a accident-reconstruction specialist, to support his
claim. He simply asks us to infer that the accident so enraged
him as to overcome his judgment and cause him to act
uncontrollably from the accident’s impelling force. Even if
this were the case, however, the extreme emotional
disturbance inquiry is not merely a subjective one. It is also,
in part, an objective one. Therefore, even if Bowling were to
show that he was emotionally enraged within the meaning of
Kentucky law, Bowling would still not be able to show a
“reasonable explanation or excuse” for his rage. McClellan,
715 S.W.2d at 469. We must agree with the Kentucky
Supreme Court that this type of minor car accident in itself
does not create a reasonable explanation or excuse for a
double homicide.
Context also suggests that it was not the accident that
caused the shootings. Testimony at trial established that
Bowling was seriously depressed and under the influence of
alcohol in the days preceding the shooting. Bowling was
obsessed with death, made frequent morbid statements like
“my time has run out,” and told his mother, if he disappeared,
to look for him on family property in Powell County. J.A. at
4558 (Testimony of Iva Lee Bowling). Bowling’s state of
mind might also be reflected in the fact that he purchased a
gun a few days before the shootings and carried it with him
the morning of the shootings. Bowling suggests that these
comments and actions support his claim that he was
extremely emotionally disturbed at the time of the shootings.
In reality, however, these comments and actions undercut his
claim — for in order for Bowling to be entitled to an EED
instruction, Kentucky law requires that the accident itself be

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No. 01-5832 Bowling v. Parker 19
4Bowling also makes a claim that the denial of an EED instruction in
the guilt phase was improper under state law. Normally, habeas
petitioners cannot o btain relief in federal court on the basis that the state
courts did not follow state law; there generally must be some federal
constitutional error. See Estelle v. McG uire, 502 U.S. 62, 67-68 (199 1);
Hutchison v. Bell, 303 F.3d 720, 731 (6th Cir. 2002) (“State-law trial
errors will not warrant habeas relief unless the ‘error rises to the level of
depriving the defendant of fundamental fairness in the trial process.’”)
(citation omitted). To the extent that this violation of state law was so
flagrant as to amount to a denial of due process, we have already
considered the claim and rejected it in our Beck discussion above.
the “dramatic event which creates a temporary emotional
disturbance as opposed to a more generalized mental
derangement.” Stanford, 793 S.W.2d at 115. All of
Bowling’s evidence suggests general mental illness, not a
temporary and extreme emotional disturbance stemming from
the accident. See McClellan, 715 S.W.2d at 468 (noting that
“the condition must be a temporary disturbance of the
emotions as opposed to mental derangement per se”). As a
result, we cannot say that the Kentucky Supreme Court’s
decision that an EED instruction was not necessary was
objectively unreasonable.4
2. Instructions in the Penalty Phase
Bowling’s next claim is that he should have been granted
a specific mitigating instruction on EED, mental illness, and
intoxication in the penalty phase. Bowling complains that he
was only given a general instruction on mitigation, which
allowed the jury to consider any evidence they found
mitigating, but did not specifically instruct them to take into
account evidence of EED, mental illness, or intoxication. On
appeal, the Kentucky Supreme Court upheld the general
mitigating instruction, stating that Bowling was not
constitutionally entitled to anything more. Bowling I, 873
S.W.2d at 180.
The Kentucky Supreme Court is correct. The United States
Supreme Court rejected Bowling’s claim in Boyde v.
20 Bowling v. Parker No. 01-5832
California, 494 U.S. 370 (1990), where the Court held that a
catch-all instruction on mitigation was constitutionally
sufficient unless the instructions as a whole created “a
reasonable likelihood that the jury has applied the challenged
instruction in a way that prevents the consideration of
constitutionally relevant evidence.” Id. at 380; see also
Buchanan v. Angelone, 522 U.S. 269, 276 (1998). An
examination of the actual jury instructions reveals that there
was no realistic chance of confusion.
The jury instructions correctly explain that the defendant is
presumed to be innocent of the aggravating circumstance, and
that the aggravating circumstance must be proved by the
prosecution beyond a reasonable doubt. For each crime, the
instructions explain that the jury need not impose the death
penalty simply because the aggravating circumstance is
proved beyond a reasonable doubt. They explain that the
death penalty can be imposed despite the existence of a
mitigating circumstance, but only if the aggravating
circumstances outweigh the mitigating ones. Most
importantly, the jury instructions explicitly call upon the jury
to consider the mitigating evidence generally:
[Y]ou shall consider such mitigating or extenuating facts
and circumstances as have been presented to you in the
evidence including, but not limited to, such of the
following as you may believe from the evidence; (a) that
the Defendant has no significant history of prior criminal
activity. You shall consider any other facts and
circumstances which you consider to be mitigating or
extenuating even though they are not listed in this
instruction.
J.A. at 5106-07 (italics added). The instruction clearly
allows, and in fact commands, the jurors to consider evidence
that they find mitigating. There is no reason to assume that
the jury did not consider the evidence of EED, mental illness,
and intoxication as potential mitigating evidence. Cf. Payton
v. Woodford, 299 F.3d 815, 818-19 (9th Cir. 2002) (granting

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No. 01-5832 Bowling v. Parker 21
5In addition to arguing that the denial of a specific instruction in the
penalty phase violates federal law, Bowling also claims that this denial
violated a state statute that requires judges to give particularized
instructions on mitigating factors. See KY . REV. CO D E. AN N.
§ 532.025 (2) (“In all cases of offenses for which the death penalty may
be authorized, the judge shall consid er, or he shall include in his
instructions to the jury for it to consider, any mitigating circumstances or
aggravating circumstances o therwise authorized by law and any of the
following statutory aggravating or mitigating circumstances which may
be supported by the evidence.”). Bowling argues that he did present
sufficient evidence to merit a specific instruction on these facts und er state
law. W hether or not we would agree with him on this point, Bowling
ignores the fact that this co urt gene rally does not review alleged violations
of state law in federal habeas proceedings. See Estelle, 502 U.S. at 67-68.
W e merely hold here that the state trial court’s determination that Bowling
was not entitled to instructions on these factors is not so fundam entally
unfair as to violate due p rocess.
habeas relief under AEDPA to a defendant whose evidence of
a post-crime conversion and good works was likely not
considered by the jury because the catch-all provision of the
instructions only allowed the jury to consider circumstances
that “extenuate[d] the gravity of the crime”). The mere fact
that the jury was not given a particularized instruction on
EED or mental illness, as opposed to a more generalized one,
is simply not a constitutional wrong.5
D. Ineffective Assistance of Counsel
Bowling’s next set of claims for relief arises from his
allegation that he was provided with ineffective counsel under
Strickland v. Washington, 466 U.S. 668 (1984). Bowling
alleges that his counsel was constitutionally defective in six
principal ways. Specifically, he asserts that counsel failed
(1) to investigate the victims’ drug activities, which would
have led them to another viable suspect, Donald Adams,
(2) to consult with Bowling before and during trial, (3) to
present evidence that would have justified an instruction on
EED and mitigation evidence more generally, (4) to prepare
adequately before trial because of a pending criminal
indictment against one of Bowling’s attorneys, (5) to contact
22 Bowling v. Parker No. 01-5832
6W e note at the outset that the Kentucky Supreme Court addressed
and rejected all of Bowling’s claims of ineffective assistance that we
consider here. Bowling II, 981 S.W.2d at 549-52.
a potentially exculpatory witness, and (6) to impeach
effectively the government witnesses.
In order to succeed on any of these claims of ineffective
assistance of counsel, Bowling must show two things. First,
he must show that his counsel’s performance was
constitutionally deficient, and second, he must show that he
was prejudiced by his counsel’s errors. Id. at 687.
In order to prove his counsel constitutionally deficient,
Bowling must show that his counsel’s performance fell below
an objective standard of reasonableness under prevailing
professional norms. Id. at 687-88. Bowling must overcome
the “presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.”
Bell v. Cone, 535 U.S. 685, 698 (2002) (quotations omitted).
Having proved his counsel deficient, Bowling must then 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” in this context is a “probability sufficient to
undermine confidence in the outcome.” Id.6
1. Failing to Investigate the Victims
Bowling’s first claim of ineffective assistance, which was
discussed extensively at oral argument though not given much
attention in the parties’ appellate briefs, is that his counsel did
not properly investigate the Earleys’ involvement with drugs.
If his counsel had performed a proper investigation, Bowling
argues, they would have discovered that Eddie Earley had
informed Lexington police of the drug activities of Donald
Adams and that Donald Adams was the one who presumably
shot the Earleys.

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No. 01-5832 Bowling v. Parker 23
To support his claim, Bowling points to a memorandum
written by his attorneys roughly six weeks before trial. This
memorandum lists twenty-seven tasks that counsel said they
needed to accomplish before trial. One of these, task number
twenty one, is an interview with Larry Walsh, who was the
chief of Lexington police at the time. The memorandum
states that they should interview Walsh because he was
“friends with the victims” and because Eddie Earley
“provided information concerning Donald Adam[’s] drug
activity.” J.A. at 1237. We note that task number twenty is
counsel’s statement that they should interview Donald
Adams, who “supposedly had [an] affair with Tina, and sold
dope to Eddie.” J.A. at 1237.
Counsel never interviewed Walsh. Bowling claims that if
Walsh had been interviewed, Bowling’s counsel would have
found that Donald Adams was the one who killed the Earleys,
or, at the very least, Bowling’s counsel would have been able
to create reasonable doubt by arguing that Adams committed
the murders.
We must note that Bowling’s theory that Donald Adams
was involved in the murders is farfetched. Though Bowling
never really explains how Donald Adams could have been the
murderer under the facts adduced in the case, he seems to
intimate that Adams must have stolen Bowling’s car,
committed the murders, and then deposited Bowling’s car on
the Bowling family’s property. Among the more obvious
problems with Bowling’s theory is the fact that Bowling does
not explain why Adams would choose to frame Bowling for
the murders, how Adams stole Bowling’s car, how Adams
knew where Bowling’s family property in rural Powell
County was located, and — most importantly — how Jack
Mullins and Jack Strange could have both identified Bowling
near the Powell County property if he had not been there.
The implausibility of Bowling’s thesis that Donald Adams
was in fact the killer makes it virtually impossible for
Bowling to prove that his counsel was constitutionally
24 Bowling v. Parker No. 01-5832
deficient for not investigating this theory. In light of the
tenuous connection between Adams and the murder,
counsel’s decision not to investigate further does not seem
unreasonable. In fact, the memorandum that Bowling uses to
show that his attorneys were deficient seems to support the
opposite conclusion. The memorandum reveals a
methodically organized defense team, and the mere fact that
Bowling’s attorneys failed to accomplish all of the tasks they
set out for themselves may be an indication of their early
ambitiousness rather than their later negligence.
Moreover, Bowling has put forth no evidence of prejudice.
Bowling has not shown that anything inculpatory about
Adams would have come out of an interview with the police
chief. Bowling suggests that his attorneys would have at least
discovered that Eddie Earley had previously informed on
Donald Adams and that Donald Adams may have slept with
Tina Earley. Bowling’s attorneys, however, already
suspected this. Bowling has put forth no evidence going
beyond these facts; Bowling has not shown that Donald
Adams was in any way actually connected to the Earleys’
murders. Bowling has therefore not shown that the Kentucky
Supreme Court’s decision denying relief on this claim was
unreasonable. Bowling II, 981 S.W.2d at 550.
2. Failing to Consult with Bowling
As explained in Part I.B, supra, Bowling first claimed
ineffective assistance in the trial itself. Between the guilt and
penalty phases, Bowling sought to have his counsel removed
because Bowling felt they were unprepared. Bowling claimed
that he did not have ample chance to explain the facts of the
case to his attorneys because he had “not spent an hour, total,
with any of them from day one.” J.A. at 4921 (Trial Tr.).
The few times that they did talk, Bowling claims, he was
interrupted and ignored. While Bowling’s attorneys did not
put on a single witness, Bowling claimed that there were
numerous witnesses who could have been called.

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No. 01-5832 Bowling v. Parker 25
The Kentucky Supreme Court quickly rejected this claim
on direct appeal, stating that “[t]he trial judge determined that
the trial strategy used by Bowling’s counsel had a better
chance of success than any of which the trial judge could
think in light of the strong evidence of guilt presented by the
prosecution.” Bowling I, 873 S.W.2d at 180.
This claim of ineffective assistance of counsel fails. First,
it is not clear that Bowling has shown constitutional
deficiency. The Supreme Court has emphasized that the
focus of the Sixth Amendment is not on “the accused’s
relationship with his lawyer,” but on “the adversarial
process.” Wheat v. United States, 486 U.S. 153, 159 (1988)
(quotation omitted); see also Dick v. Scroggy, 882 F.2d 192,
197 (6th Cir. 1989) (holding, in a non-capital case, that
Strickland was not violated when the defendant’s attorney did
not interview the defendant until the night before trial, and
then for only thirty to forty-five minutes). Yet, the one-hour
total consultation time that Bowling cites is alarming, and
courts have granted habeas relief under such conditions. See,
e.g., Harris By and Through Ramseyer v. Wood, 64 F.3d
1432, 1436, 1438-39 (9th Cir. 1995) (holding that Strickland
was violated when the defendant’s counsel, among many
other deficiencies, met with his client in a capital case for less
than two hours).
We are concerned, however, by the fact that Bowling has
done nothing to substantiate this bare allegation. Bowling has
not even submitted a personal affidavit verifying the one-hour
total consultation figure. Bowling’s trial counsel signed
affidavits stating their general strategy and admitting that they
never interviewed Chief Walsh of the Police Department.
Though they easily could have done so, these affidavits never
mention the one-hour total consultation figure. Instead of
providing that sort of substantive evidence, Bowling simply
raises this claim in his briefs, often making very limited
claims like, “Lead counsel at trial appears to have visited Mr.
Bowling for a mere hour, cumulative,” without any
supporting evidence. J.A. at 1843 (Motion for Post-
26 Bowling v. Parker No. 01-5832
Conviction Relief) (italics added). Moreover, the one-hour
figure seems implausible, given that Bowling’s trial lawyers
could not have found the witnesses who testified at the
penalty phase (which included Bowling’s coworkers and jail
supervisors) or discovered the rest of their submitted evidence
without Bowling’s aid. It also seems strange, for example,
that Bowling’s lawyers would have Bowling attend a
psychological examination with a psychologist for nine hours
and meet with him for only one.
Even, however, if the one-hour total consultation figure is
accurate and Bowling has made out deficiency, Bowling has
not shown the prejudice that his Strickland argument requires.
As noted by the federal district court, Bowling has not shown
how additional time spent with counsel could have altered the
outcome of his trial. Bowling claimed in the colloquy with
the state trial judge that numerous witnesses could have been
called, but Bowling never specifically named anyone and
stated in front of the trial judge that he would not testify
himself. Bowling has not even alleged factually how
additional time with his counsel would have aided his case or
helped counsel obtain names of people to testify on his
behalf. Bowling cannot therefore show prejudice; the mere
fact that counsel spent little time with him is not enough
under Strickland, without evidence of prejudice or other
defects. As a result, Bowling has not shown that the
Kentucky Supreme Court’s decision denying him relief on
this ground is unreasonable.
3. Failing to Present EED and Other Mitigating
Evidence
Bowling’s next claim is that his counsel was ineffective in
their efforts to present evidence of an EED defense in the
guilt phase and to present general evidence of mitigation in
the penalty phase. Bowling claims that his lawyers did not
present evidence that could have garnered Bowling a
mitigating instruction under KY. REV. CODE ANN.
§ 532.025(2)(b)(2) and (7), which allow for mitigation upon

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No. 01-5832 Bowling v. Parker 27
a showing of “extreme mental or emotional disturbance” or a
lack of capacity “to appreciate the criminality of his conduct
[or to conform the conduct] to the requirements of law . . . as
a result of mental illness or retardation or intoxication.”
Bowling makes several arguments. He argues that his
lawyers failed to understand the Kentucky requirements of
EED. He argues that his lawyers hastily prepared their expert
Dr. Beal and that they should have presented him in the
penalty phase. Bowling alleges that his lawyers did not put
on Dr. Beal because Beal did not return a phone call.
Bowling also argues that counsel in the penalty phase should
have submitted evidence that Bowling had a growth removed
from his head at age seven, sustained serious head injuries,
had a violent alcoholic father, and suffered a history of
alcohol abuse and blackouts. The Kentucky Supreme Court
rejected all of these assorted claims. Bowling II, 981 S.W.2d
at 550.
Some of Bowling’s claims clearly have no merit. Bowling
claims that Beal’s analysis was a hasty last-minute effort, but
Beal spent nine hours with Bowling, interviewed several
members of Bowling’s family, examined medical and family
records, and wrote a written report. Bowling argues that his
lawyers did not understand the Kentucky requirements of
EED, but Bowling has offered no evidence to support this
claim, and our review of the transcript suggests otherwise.
Bowling’s chief objection seems to be a challenge to his
counsel’s decision not to put Dr. Beal on the stand. Many
sensible reasons could justify this decision. First, if Beal had
testified to Bowling’s mental deterioration before the crime,
that might have implicitly suggested to the jury that Bowling
was the murderer. The decision not to call Beal as a witness
may have been a necessary consequence of Bowling’s
insistence on not abandoning his claim of innocence in the
guilt phase. Bowling claims, however, that his attorneys were
simply lazy, pointing to the following statement that his
attorneys made in deciding to rest his case:
28 Bowling v. Parker No. 01-5832
Assuming that we — I mean, we are going to rest. We
were — I didn’t mean to seem like we were stringing
him along. I do want them to know that we were
considering putting Dr. Veal [sic] on this afternoon. We
needed to talk to him about some additional information
that we had. He did not get back to us. On further
reflection, we decided to rest.
J.A. at 4757. In isolation, this comment suggests that his
attorneys may have chosen not to call Beal as a witness
because they could not find him. Even if this is true,
however, it was better for Bowling that his attorneys did not
call Dr. Beal to testify, as it is clear that Beal’s testimony was
not going to help Bowling establish extreme emotional
disturbance. Beal’s report states:
There is no evidence that the mental disorders
substantially impaired this man[’]s behavior with respect
to the alleged actions, such that he lacked substantial
capacity to appreciate the criminality of his conduct, or
that he was unable to conform his conduct to the
requirements of the law. In my opinion Mr. Bowling
was legally sane at the time of the offenses for which he
is charged.
J.A. at 5320 (Beal Report). The report contains other
damaging observations as well. In his psychological
assessment of Bowling, Beal reported Bowling as having a
tendency to be “angry, irritable, resentful” and “asocial,” and
said that his offenses could be expected to be “vicious and
assaultative . . . senseless, poorly planned, and poorly
executed.” J.A. at 5328. Moreover, it is clear that Dr. Beal
did not think Bowling was entitled to an EED instruction.
One of Bowling’s attorneys wrote a memorandum describing
his conversation with Dr. Beal, during which Dr. Beal
suggested that “Bowling was in a frame of enraged anger
prior to the murders, and we discussed that this did not
appear to be a heat of passion kind of thing, but rather
something that had been developing several days earlier.”

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No. 01-5832 Bowling v. Parker 29
J.A. at 5335 (Att’y Memorandum) (italics added). This
would be very damaging information, for as we noted, supra
at Part II.C, in our discussion of extreme emotional
disturbance, it would, in fact, destroy Bowling’s request for
an EED instruction under Kentucky law. See McClellan, 715
S.W.2d at 468.
Because Beal’s testimony was not going to help Bowling,
it was certainly reasonable (and perhaps ultimately better for
Bowling) that Bowling’s counsel chose to rely on the
testimony of their favorable lay witnesses, Bowling’s sister
and mother, who testified to his deteriorating state of mind, as
well as on the state’s mental health expert, Dr. Smith, whose
report seems more helpful to the defense than the one of Dr.
Beal. See Bowling II, 981 S.W.2d at 550 (noting that the
State’s profile “aided Appellant in his case more than his own
psychologist’s profile”). Dr. Smith, in contrast to Dr. Beal,
believed that it was “unlikely but not impossible that Mr.
Bowling, as a result of mental disease or defect, lacked
substantial ability to comprehend the criminality of his
behavior or to conform his behavior to the requirements of
law.” J.A. at 5186-87 (Smith Report). Smith’s report also
states that Bowling “suffers from Alcohol Abuse” and that at
the time of the accident Bowling either “suffered from a
major psychiatric disorder or . . . was suffering an ordinary
reaction to the loss of his wife occurring in an alcoholic
individual with this [Antisocial and Borderline] personality
disorder.” J.A. at 5186.
Since Beal’s testimony was not going to aid Bowling,
Bowling cannot show ineffective assistance of counsel for the
failure to present it. Even if Bowling is right and his
attorneys were not making a tactical error but were being
deficient in failing to present Beal, Bowling cannot show
prejudice.
Finally, Bowling argues that his counsel could and should
have submitted evidence that Bowling had a growth removed
from his head at age seven, serious head injuries, a violent
30 Bowling v. Parker No. 01-5832
alcoholic father, and a history of alcohol abuse and blackouts.
As an initial matter, Bowling did present some of this
information. His sister and mother testified to his drinking,
the prevalence of mental illness in the family, and his strange
behavior during the weeks before the shooting. Bowling has
not submitted evidence that he suffered from a violent
alcoholic father. Bowling’s evidence that he had a growth
removed from his head and a serious head injury comes from
an initial doctor’s report noting the head growth and the fact
that Bowling was in a boating accident as a child that left him
unconscious. Beal’s report, however, considered this earlier
report, and did not think the head growth and childhood
injury worthy of mention.
This evidence, though not presented, does not seem to have
much importance. Bowling’s counsel submitted these facts
to their expert, who seemed to view them as trivial and not
worth pursing. It was therefore reasonable for counsel to
make the strategic decision to pursue other avenues of relief
for Bowling by stressing his drinking, mood swings, and
increasing depression. Moreover, Bowling cannot show any
prejudice from this alleged deficiency, because it is simply
unrealistic to say that knowledge of these two minor
childhood incidents, which have no apparent connection to
the present, could have changed anything. Bowling has not
shown deficiency or prejudice as those terms have been used
in other binding precedent. Cf. Terry Williams v. Taylor, 529
U.S. 362, 395-98 (2000) (finding ineffective assistance when
counsel failed to introduce evidence that the defendant was
borderline mentally retarded and was severely and repeatedly
beaten by his father); Coleman v. Mitchell, 268 F.3d 417,
450-53 (6th Cir. 2001) (finding ineffective assistance when
counsel failed to report that the defendant was borderline
mentally retarded and sexually abused by his grandmother
who involved him in her voodoo and group sex practices),
cert. denied, 535 U.S. 1031 (2002); Carter v. Bell, 218 F.3d
581, 593-94, 600 (6th Cir. 2000) (finding ineffective
assistance when counsel failed to introduce medical records
showing multiple childhood and adult head injuries from

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No. 01-5832 Bowling v. Parker 31
accidents and fights, and physician recommendations for
psychiatric hospitalization); Glenn v. Tate, 71 F.3d 1204,
1208, 1211 (6th Cir. 1995) (finding ineffective assistance
when counsel failed to introduce evidence showing that the
defendant sustained organic brain damage before he was born
and was mentally retarded as a result), cert. denied, 519 U.S.
910 (1996).
4. Failing to Prepare Because of the Indictment
Bowling next claims that his attorney Summers was
unprepared because Summers was told on the first day of trial
that he was being indicted. Bowling points to an affidavit
filed by another of his trial attorneys, Baldani, who stated that
Summers was “extremely upset” and asked Baldani to cross-
examine the investigating officer, Detective Henderson. J.A.
at 1243 (Baldani Aff.).
In Bowling’s post-conviction appeal, the Kentucky
Supreme Court analyzed this claim and stated that “[w]ith no
evidence that counsel’s indictment had any negative
implications on Appellant’s trial, we cannot conclude that
Appellant was denied effective counsel in this respect.”
Bowling II, 981 S.W.2d at 550.
The Kentucky Supreme Court is correct. Bowling has not
even alleged that the performance of his defense team was
hampered when Baldani had to take over for Summers.
Neither Baldani in his affidavit nor Bowling in his brief
makes any claim that Summers would have done a better job
than Baldani did. On direct examination, Detective
Henderson related the events surrounding Bowling’s arrest in
Knoxville, told of retrieving Bowling’s personal effects, and
testified about interviewing the witnesses placing Bowling on
the road near where his car was discovered on the evening of
the murder. On cross-examination, Baldani got Henderson to
admit that none of the personal effects had blood on them and
that the car itself did not have blood on it either. No part of
Baldani’s cross-examination seems substandard and Bowling
32 Bowling v. Parker No. 01-5832
has not even suggested anything that Baldani failed to ask.
This claim therefore fails.
5. Failing to Investigate the Message With the Police
Bowling also argues that a message left within the police
department long before the trial took place suggests that there
may be another witness to the crime. The message is from an
officer who had a friend whose boyfriend was a witness to the
accident. The message reports only that the “incident occured
[sic] over a fender bender type accident.” J.A. at 1779.
Bowling contends that his counsel was ineffective for not
taking steps to investigate who sent the message. Even
assuming that Bowling could show his counsel was deficient
for failing to do so, Bowling cannot prove prejudice.
Bowling argues that if his counsel had been able to find this
witness, then the witness could have rebutted the
prosecution’s theory that Bowling had intentionally rammed
the car, which would have entitled Bowling to an instruction
on EED. Bowling, however, has no evidence that the witness
would testify that the incident was accidental or that an
accidental collision would have been sufficient to warrant an
instruction on EED. In fact, it seems likely that the witness
would have hurt Bowling’s case. The only thing known
about the witness is that she described the accident preceding
the shootings as a fender bender. This tends to suggest that
the accident was an extremely minor one, which would
contradict Bowling’s claim that the accident was so jarring as
to make him lose control over his actions and shoot the
Earleys. Moreover, as the Kentucky Supreme Court stressed,
“[i]t was not the lack of evidence pertaining to the collision,
but rather the lack of evidence showing the effect the collision
had upon Appellant that precluded the EED instruction.”
Bowling II, 981 S.W.2d at 549. As a result, this claim of error
also fails.

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No. 01-5832 Bowling v. Parker 33
7In his brief to this court, Bowling raise s for the first time the
possibility that his counsel was also ineffective for failing properly to
cross-examine Detective H enderson. This claim was never presented to
the Kentucky S upreme C ourt and was not even presented to the district
court below. It is therefore defaulted.
In any event, we ho ld this claim has no merit. Bowling argues that
an adequate cross-examination of Henderson would have revealed that the
prosecution had no explanation for why Bo wling comm itted the murders.
Bowling argues that his attorneys inappropriately chose not to ask
Detective Henderson about whether Bowling knew the Ea rleys or not,
after being warned by the judge that this would open the door to hostile
evidence and after consulting with B owling himself. Bowling gives no
reason to think this was an unreasonable decision, and even if it was,
Bowling does not explain how it could have prejudiced his case, as the
defense repeatedly stated throughout trial that there was no apparent
motive.
6. Failing to Impeach the Prosecution’s Witnesses
Bowling’s last claim of ineffective assistance of counsel is
that his counsel inadequately cross-examined Clay Brackett.7
Bowling argues that an adequate cross-examination of
Brackett, who sold Bowling the murder weapon, would have
shown that he testified pursuant to a covert deal struck with
police who agreed not to pursue him for failing to register his
firearms. The Kentucky Supreme Court rejected this claim as
well. Bowling II, 981 S.W.2d at 550.
Bowling, however, has put forth no evidence of an
agreement between Brackett and the government. Without
any evidence supporting Bowling’s claim, we cannot say that
the Kentucky Supreme Court’s decision to deny relief on
these grounds was improper, let alone unreasonable.
E. Evidentiary Hearing
Bowling next claims that the district court erred by denying
him a federal evidentiary hearing in conjunction with his
habeas petition. Bowling seeks an evidentiary hearing to
investigate one of his Brady claims and a few of his
ineffective assistance of counsel claims. See Brady v.
34 Bowling v. Parker No. 01-5832
8Although Bowling raises this Brady claim as a part of his general
request for an evidentiary hearing, see Appellant Br. at 51-54; Reply Br.
at 16-17, Bo wling does not discuss it outside of this context. Construing
Bo wling’s appellate briefs generously, we will consider this part of
Bo wling’s petition as stating a Brady claim as well as a claim that an
evidentiary hearing sho uld be granted on this Brady issue.
W e reject the Brady claim. First, we note that this claim is
procedurally defaulted. Bowling raised three Brady issues in the federal
district court. He claimed that the prosecution did not disclose
exculpatory notes on the results of a photo lineup, documents establishing
the extramarital affairs of Tina Earley and drug use by both Earleys, and
a deal with Clay Brackett. See Bow ling III, 138 F. Supp. 2d at 879-885;
J.A. at 109-12 (Pet. Br. in Dist. Ct.). He did not raise there the Brady
claim he alludes to here: whether “[t]he prosecution failed to disclose
evidence regarding D onald A dams’ prosecution for drug charges, his
involvement in a drug ring, and the victims’ involvem ent with the police.”
Appellant Br. at 53. Moreover, this claim was not presented to the
Kentucky Supreme Co urt. For these reasons Bo wling’s claim is
defaulted.
Even if this claim were properly presented to the federal district court
and the Kentucky Supreme Court, we would deny the claim on the merits.
Under Brady v. Maryland, 373 U.S. 83 (19 63), a prosecutor who
suppresses evidence that is favorable to the defendant and “material either
to guilt or to punishment” violates due pro cess. Id. at 87; see also United
States v. Bagley, 473 U.S. 667, 682 (1985) (explaining that materiality
exists when “there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different”). In the present case, however, Bowling has not put forth any
evidence to show that the prosecution improperly suppressed information
about Donald A dam s or that such a suppression would be material. W e
therefore reject Bowling’s Brady claim.
Maryland, 373 U.S. 83 (1963). Specifically, Bowling wants
to investigate whether the prosecution had any internal
documents linking the Earleys to Donald Adams (and thus
Donald Adams to the crime itself), and whether Bowling’s
counsel was defective for not further investigating Adams.8
Bowling also seeks an evidentiary hearing to establish
whether his counsel was ineffective for failing to investigate
a potential deal the government made with Clay Brackett.
Bowling was never granted any post-conviction evidentiary
hearing by the Kentucky state courts, but requested an
evidentiary hearing in the direct appeal and post-conviction

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No. 01-5832 Bowling v. Parker 35
proceedings. We conclude that the district court did not err
in denying Bowling an evidentiary hearing.
The first hurdle that Bowling must jump is 28 U.S.C.
§ 2254(e)(2), which prevents federal courts from granting
evidentiary hearings to petitioners who “fail[] to develop the
factual basis of a claim in State court proceedings.” The
Supreme Court has explained that “a failure to develop the
factual basis of a claim is not established unless there is lack
of diligence, or some greater fault, attributable to the prisoner
or the prisoner’s counsel.” Michael Williams v. Taylor, 529
U.S. 420, 432 (2000). This court has noted that “a finding of
diligence would ‘depend[] upon whether the prisoner made a
reasonable attempt, in light of the information available at the
time, to investigate and pursue claims in state court.’”
Sawyer v. Hofbauer, 299 F.3d 605, 610 (6th Cir. 2002) (citing
Williams, 529 U.S. at 435).
Bowling has met his burden under 28 U.S.C. § 2254(e)(2).
Bowling repeatedly sought an evidentiary hearing in state
court and, in those proceedings, introduced several documents
attempting to corroborate the deal between Clay Brackett and
the government and to establish the culpability of Donald
Adams. We find this sufficient to show that Bowling was
diligent in his state court litigation.
However, the fact that Bowling is not disqualified from
receiving an evidentiary hearing under § 2254(e)(2) does not
entitle him to one. We must determine then whether the
district court abused its discretion by denying him an
evidentiary hearing. See Sawyer, 299 F.3d at 610. This court
has held that “a habeas petitioner is generally entitled to such
a hearing if he alleges sufficient grounds for release, relevant
facts are in dispute, and the state courts did not hold a full and
fair evidentiary hearing.” Id. (internal quotations omitted).
However, “[e]ven in a death penalty case, ‘bald assertions and
conclusory allegations do not provide sufficient ground to
warrant requiring the state to respond to discovery or to
require an evidentiary hearing.’” Stanford v. Parker, 266
36 Bowling v. Parker No. 01-5832
9To the extent that Bowling seeks relief by arguing that the Kentucky
courts erroneously applied state law by denying him a post-conviction
evidentiary hearing, we reject his claim. As we have noted in this opinion
already, we generally do not review alleged violations o f state law in
federal habeas p roceedings; there must be some independ ent
constitutional error. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Insofar as Bowling may be claiming that this alleged state-law error
violated due process, we believe that any po tential error was not so
fundamentally unfair as to violate Bo wling’s due-process rights. Insofar
as Bowling may be claiming that this alleged error entitled him to an
evidentiary hearing in federal court, we have considered and rejected this
claim immediately above.
F.3d 442, 460 (6th Cir. 2001) (citation omitted), cert. denied,
123 S. Ct. 136 (2002).
Bowling cannot show that the district court abused its
discretion in denying him an evidentiary hearing. Bowling’s
claims that Donald Adams was the one who murdered the
victims and that Clay Brackett had a deal with the
government do not amount to anything more than conclusory
allegations. At oral argument, Bowling’s counsel argued that
Bowling could not make more than bald assertions precisely
because he had not had an evidentiary hearing. This circular
logic, however, would entitle every habeas defendant to an
evidentiary hearing on any issue. Without some evidence in
support of Bowling’s implausible theory of the case, which is
analyzed above in our discussion of Bowling’s ineffective
assistance of counsel claims, we cannot say that the district
court’s decision to deny an evidentiary hearing was an abuse
of discretion.9
F. Prosecutorial Misconduct
Bowling’s fourth set of claims relates to allegations of
misconduct on the part of the prosecution. On direct appeal,
the Kentucky Supreme Court considered the claims of
prosecutorial misconduct together and found no merit in
them. Bowling I, 873 S.W.2d at 178.

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No. 01-5832 Bowling v. Parker 37
On habeas review, claims of prosecutorial misconduct are
reviewed deferentially. Darden v. Wainwright, 477 U.S. 168,
181 (1986). To be cognizable, the misconduct must have “‘so
infected the trial with unfairness as to make the resulting
conviction a denial of due process.’” Id. (citation omitted).
Even if the prosecutor’s conduct was improper or even
“universally condemned,” id., we can provide relief only if
the statements were so flagrant as to render the entire trial
fundamentally unfair. Once we find that a statement is
improper, four factors are considered in determining whether
the impropriety is flagrant: (1) the likelihood that the remarks
would mislead the jury or prejudice the accused, (2) whether
the remarks were isolated or extensive, (3) whether the
remarks were deliberately or accidentally presented to the
jury, and (4) whether other evidence against the defendant
was substantial. See Boyle v. Million, 201 F.3d 711, 717 (6th
Cir. 2000). Under AEDPA, this bar is heightened by the
deference we give to the Kentucky Supreme Court’s
determination of Bowling’s prosecutorial-misconduct claims.
See Macias v. Makowski, 291 F.3d 447, 453-54 (6th Cir.
2002) (“If this court were hearing the case on direct appeal,
we might have concluded that the prosecutor’s comments
violated Macias’s due process rights. But this case is before
us on a petition for a writ of habeas corpus. So the relevant
question is not whether the state court's decision was wrong,
but whether it was an unreasonable application of clearly
established federal law.”).
1. The Presumption of Innocence
Bowling’s first claim is that the prosecutor negated the
presumption of innocence during general voir dire by drawing
the following analogy:
Okay; most of us know how to drive a standard
transmission. That means that you are not going forward
in this case or you are not going in reverse in this case,
but you are sitting in neutral waiting to determine, based
on the evidence you hear here, whether you go forward
38 Bowling v. Parker No. 01-5832
or in reverse. Is there anybody here that is not in neutral?
How did you like the way I viewed that? Thank you; I
have no other questions, Judge.
J.A. at 3317-18. Bowling is correct when he states that a jury
must be told a defendant is presumed innocent. Taylor v.
Kentucky, 436 U.S. 478, 484-86 (1978). Given the context of
the prosecutor’s statement, it is clear that the prosecutor did
not undermine that presumption; instead, the prosecutor was
merely trying to make sure that the jury began the trial
without presuppositions about the case. The same prosecutor
had made the following remark only seconds before:
Do we all agree that this Defendant is, as he sits right
here, innocent until proven guilty? We all understand
that there has been no evidence heard in this case. And,
as a result, if all of us had to vote right now, we would
have to vote not guilty because we haven’t heard any
evidence. Do we understand that? Okay; now, in
criminal cases, the burden of proving a person charged
with a crime guilty beyond a reasonable doubt rests on
the Commonwealth . . . . The burden is on us; do you
understand that?
J.A. at 3315. Considering these statements together, it
becomes apparent that the presumption of innocence was not
negated in this case. There is therefore no impropriety here,
and this claim is easily dismissed.
2. Comments on Bowling’s Silence
Bowling also argues that the prosecution made
constitutionally improper comments about his failure to
testify. Bowling has two comments in mind. First, in the
prosecution’s closing argument in the guilt phase, the
prosecutor argued that the defendant did have a motive:
But, see, we have proven a motive. There is no doubt he
had one. See, something made him buy that gun from

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No. 01-5832 Bowling v. Parker 39
Mr. Brackett before this killing. Something caused him
to go out and sit by that fence row by that empty slat.
Something made him do that. Something made him say
that morning, “Today is the day.” Something motivated
him to plan it so that he caught Eddie and Tina Early
there the every morning [sic] — or, at the very moment
of their arrival at the cleaners. And, something
motivated him to ram his car into theirs, and to empty
that .357 into their bodies. We have proven to you that
he had a motive. We can’t tell you what it is, because
only the man that pulled the trigger knows. But, we
know that there is one.
J.A. at 4860-61. Bowling argues that the statement “only the
man that pulled the trigger knows,” was effectively a
comment on the fact that Bowling did not testify at trial.
Bowling did not, however, object to this statement at the time.
Bowling also points to the prosecution’s argument in the
penalty phase where the prosecutor remarked, “What the
defendant cannot get away from here is the planning, the
premeditation, the physical evidence, his actions, the
callousness of it, and his lack of seeming remorse.” J.A. at
5116. Bowling objected to this statement at trial and argues
here that it also was a comment on Bowling’s silence.
The law is clear that the prosecution cannot comment on a
defendant’s decision not to testify at trial. See Griffin v.
California, 380 U.S. 609, 615 (1965); Rachel v.
Bordenkircher, 590 F.2d 200, 202 (6th Cir. 1978) (granting
writ of habeas corpus and requiring a new trial when the
prosecutor remarked that he could not say what happened
because the defendant “won’t tell us”). Yet, prosecutors can
“summarize the evidence and comment on its quantitative and
qualitative significance.” United States v. Bond, 22 F.3d 662,
669 (6th Cir. 1994). When a statement indirectly comments
on the defendant’s decision not to testify, this court uses four
factors to evaluate such a statement: “1) Were the comments
‘manifestly intended’ to reflect on the accused's silence or of
such a character that the jury would ‘naturally and
40 Bowling v. Parker No. 01-5832
necessarily’ take them as such; 2) were the remarks isolated
or extensive; 3) was the evidence of guilt otherwise
overwhelming; 4) what curative instructions were given and
when.” Lent v. Wells, 861 F.2d 972, 975 (6th Cir. 1988), cert.
denied, 489 U.S. 1100 (1989).
The prosecution’s comments do not create constitutional
error. Analyzing the above factors, we conclude that both of
the comments are singular, inadvertent statements that only
upon reflection marginally touch on Bowling’s silence. They
were not manifestly intended to reflect on Bowling’s silence
and likely would not have been taken as such. The
prosecution’s first comment, which was not objected to, that
“only the man that pulled the trigger knows” was probably
intended to show the jury that the prosecution had done
everything it could to show motive; the comment was likely
not intended to highlight the defendant’s silence. The second
statement seems even less appropriately construed as a
comment on the defendant’s silence — the prosecution was
merely emphasizing its view that the defendant’s actions at
the time of the crime (rather than his silence at trial)
demonstrated no remorse. See Lent, 861 F.2d at 975 (stating
that there can be no constitutional error if “some other
explanation for the prosecutor’s remarks is equally
plausible”). We therefore conclude that such comments do
not constitute constitutional error.
3. Diminished Jury Responsibility
Bowling argues that the prosecutor diminished the jury’s
responsibility for deciding whether to apply the death penalty.
Bowling points to several comments made at the penalty
phase that he alleges took the responsibility for the death
sentence away from the jury and placed it on the prosecution,
the legislature, and society.
The Supreme Court has established that “it is
constitutionally impermissible to rest a death sentence on a
determination made by a sentencer who has been led to

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No. 01-5832 Bowling v. Parker 41
believe that the responsibility for determining the
appropriateness of the defendant’s death rests elsewhere.”
Caldwell, 472 U.S. at 328-29. In Caldwell, the Supreme
Court reversed the defendant’s conviction after the prosecutor
explicitly argued that the responsibility for the death penalty
was not with the jury, by telling the jurors “your decision is
not the final decision.” Id. at 325. In Dugger v. Adams, 489
U.S. 401 (1989), the Court held that “to establish a Caldwell
violation, a defendant necessarily must show that the remarks
to the jury improperly described the role assigned to the jury
by local law.” Id. at 407. Bowling cites several statements
made in closing argument that allegedly violate Caldwell, but
none of these claims have merit.
A number of the statements Bowling puts forward clearly
do not constitute Caldwell violations. Bowling claims that
the prosecutor improperly told the jury to find the death
penalty because Bowling was not ill but mean, because the
legislature had deemed the death penalty appropriate when it
devised the legislative scheme, and because Bowling might
be released on parole otherwise. We note initially that
Bowling’s characterizations of the prosecution’s remarks are
somewhat inaccurate and exaggerated. In any event,
however, Bowling has not shown how the prosecution’s
remarks improperly described the role assigned to the jury by
local law as required by Caldwell.
Only two of the prosecutor’s statements are potentially
serious violations of Caldwell. The first statement was made
by the prosecutor who, when addressing the jury, stated that
the jurors could not “recommend the death penalty unless
[they] first decide that an aggravating factor exists.” J.A. at
5113-14 (italics added). Bowling alleges that the jury’s
responsibility for the death penalty was unconstitutionally
lessened by the use of the word “recommend.” We have held,
however, that this statement does not misstate local law
because Kentucky statutes also use the word “recommend.”
See KY. REV. CODE ANN. § 532.025(1)(b); Kordenbrock v.
Scroggy, 919 F.2d 1091, 1101 (6th Cir. 1990) (en banc)
42 Bowling v. Parker No. 01-5832
10There is a violation of state law here, however, because during the
period between Caldwe ll and Dugger (and before the trial in this case),
the Kentucky Suprem e Co urt held that the wo rd “recom mend,” while
technically accurate, improperly suggested to the jury that they were
“mere ly one step in a long process.” Tamme v. Commonwea lth, 759
S.W.2d 51, 5 3 (K y. 198 8); cf. Kordenbrock, 919 F.2d at 1101 (holding
that there was no violation of state law because the trial and appeal in the
case at bar happened before the decision in Tamme and the dec ision in
Tamme was not retroactive).
W e do not believe this violation of state law is so egregious as to
make the prosecutor’s misconduct a violation of due process. Although
the prosecutor erroneously used the word “recommend,” it was an isolated
remark and clearly not intended to prejudice the jury — the prosecutor
routinely used other m ore appropriate words, such as “fix[]” and
“impose” throughout his closing argument. J.A. at 511 0, 51 13. In fact,
his closing argument ended with the stateme nt, “I am asking you to
sentence T.C. Bo wling to death.” J.A. at 5120. In this context, it is clear
that the jury was well aware that it had responsibility of deciding whether
the death penalty should apply. We therefore hold that any potential
violation of state law under Tamme did not violate B owling’s due-pro cess
rights.
(holding that, under Dugger, the use of the word
“recommend” under Kentucky law did not misstate the jury’s
role and therefore could not amount to a Caldwell
violation).10 As a result, this statement was not made in
violation of Caldwell.
The second potentially problematic statement was also
made by the prosecution in its closing:
That is an extraordinary case, you see. Multiple
homicides, intentional killings; you kill one person.
Don’t kill everybody else, the other witnesses.
Extraordinary cases. In Kentucky, the death penalty
applies. And, our Legislature has said in those
aggravated murder cases that the death penalty may be
imposed by a jury. Potter Stewart, a former Justice of the
United States Supreme Court, said while dealing with
death penalty cases. “The expression of society’s moral
outrage is essential in an ordered society that asks its

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No. 01-5832 Bowling v. Parker 43
citizens to rely on legal processes rather than self-help to
vindicate their wrongs.” He continued — and this is
critical — “because,” he said, “when people begin to
believe that organized society is unwilling or unable to
impose on criminal offenders the punishment they
deserve, then the seeds of anarchy will soon be sewn.”
J.A. at 5111-12. Bowling argues that this quotation, which
comes from Justice Stewart’s concurrence in Furman v.
Georgia, 408 U.S. 238, 308 (1972), and was repeated in
Gregg v. Georgia, 428 U.S. 153, 183 (1976), violates the
principles announced in Caldwell. However, it is clear that
there is nothing in this statement that explicitly misinforms
the jury of its role. Bowling’s argument here is better
conceptualized as a claim under Viereck v. United States, 318
U.S. 236 (1943), which held that the incendiary nature of a
prosecutor’s patriotic remarks which were “wholly irrelevant
to any facts or issues in the case, the purpose and effect of
which could only have been to arouse passion and prejudice”
jeopardized the defendant’s right to a fair trial. Id. at 247.
This court, however, has stated that unless the remarks were
“calculated to incite the passions and prejudices of the jurors,
appeals to the jury to act as the community conscience are not
per se impermissible,” United States v. Solivan, 937 F.2d
1146, 1151 (6th Cir. 1991), and so a case-by-case analysis is
required.
In Solivan, we held that a prosecutor violated the
defendant’s right to a fair trial when he urged the jury to “tell
her and all of the other drug dealers like her . . . that we don’t
want that stuff in Northern Kentucky and that anybody who
brings that stuff in Northern Kentucky . . . [interrupted by the
court]” Id. at 1148. An earlier case, United States v. Alloway,
397 F.2d 105 (6th Cir. 1968), had held not improper a
prosecutor’s statement that “You the jurors, are called upon
in this case to be the world conscience of the community.
And I'm calling on this jury to speak out for the community
and let the John Alloways know that this type of conduct will
not be tolerated, that we're not going to tolerate . . .” Id. at
44 Bowling v. Parker No. 01-5832
113. The Solivan court distinguished Alloway by noting that
the comments in Alloway “constituted a general plea which
did not even specifically refer to the crime of armed robbery,”
and that “armed robbery was not and is not the specific focus
of national attention as is the drug problem.” Solivan, 937
F.2d at 1155. In contrast, in Solivan, “the prosecutor went
beyond . . . a mere innocuous reference to the community or
societal need to convict guilty people . . . and went so far as
to urge the jury to send a message to the community, to
defendant and ‘all of the drug dealers like her’ by convicting
defendant.” Id. In Solivan, the prosecutor suggested that
through a conviction “the jury . . . would help keep its
community in northern Kentucky free of the drug trade.”
In Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001), we again
addressed the distinction between Alloway and Solivan,
denying a writ of habeas corpus to a defendant on the basis of
a prosecutor’s remark that “the jury should ‘send a message
to the Robert Buells of the world’ that ‘if you're going to
commit this kind of a crime then you better be expecting to
pay the ultimate price, yourself.” Id. at 365. We noted that
the prosecutor in Buell “was not making a statement regarding
the jury’s ability to address a specific societal problem,” but
was merely making “a general statement regarding the need
to convict people who commit sexual molestation and
murder.” Id.
Under our binding precedents, we hold that the prosecutor’s
statement in this case is not so improper as to violate
Bowling’s due-process rights. The statement that Bowling
complains of is a general reference to the societal need to
punish guilty people; the prosecutor in this case did not
“attempt to compare or to associate the defendant with a
feared and highly publicized group, such as drug dealers,”
Solivan, 937 F.2d at 1154, but was attempting only to make
“a general statement regarding the need to convict people who
commit . . . murder,” Buell, 274 F.3d at 365. Moreover, the
prosecutor did not state that the jurors’ individual
communities would be safer if the defendant were convicted,

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No. 01-5832 Bowling v. Parker 45
as was the case in Solivan. Although we will not say that the
giving of this statement was proper, see State v. Byrd, 512
N.E.2d 611, 615-16 (Ohio 1987) (calling the same argument
“not proper” and “caution[ing] prosecutors to avoid such
arguments”), we do not find it, under the circumstances of
this case, so improper as to render Bowling’s trial
fundamentally unfair, see Macias, 291 F.3d at 453-54 (noting
that the normally deferential review of prosecutorial
misconduct is even more deferential under AEDPA).
4. The Golden Rule
Bowling claims that the prosecutor also committed
misconduct when, after discussing the testimony of Bowling’s
family, he remarked in the penalty phase:
It is always difficult when a family member testifies on
behalf of someone charged with a crime. They are his
family. And, what do you expect? Don’t you know that
Mr. and Mrs. Early and Ms. Morgan would give anything
in the world to have had the opportunity to beg for their
children’s life on April 9, 1990. Please don’t hurt our
children. And, don’t you know, Chris [the injured child],
if he could, would love to have plead for the life of his
mother and father.
J.A. at 5115-16. Bowling argues that the prosecutor’s
comments here are similar to the forbidden Golden Rule,
which “tends to pressure the jury to decide the issue of guilt
or innocence on considerations apart from the evidence of the
defendant’s culpability.” Dean v. Commonwealth, 777
S.W.2d 900, 904 (Ky. 1989) (finding error in an extended
statement glorifying the victim of a homicide).
This comment, however, was an isolated remark that did
not suggest to the jury that they should decide the case on a
basis other than Bowling’s culpability. This court has
recently held a more dangerous comment not to be improper,
let alone a denial of due process. Simpson v. Jones, 238 F.3d
46 Bowling v. Parker No. 01-5832
399, 409 (6th Cir. 2000) (upholding the statement, “Ask
yourself if you had a loved one, or had a relative, or a friend,
who was in a situation like that”). Given the Simpson
precedent, by which this panel is bound, we must conclude
that the statement that Bowling complains of is not so
fundamentally unfair as to constitute a denial of due process.
5. Finding of Statutory Aggravator
Bowling next claims prosecutorial misconduct amounting
to a denial of due process in the fact that the prosecutor told
the jury, during the eligibility section of the penalty phase,
that because it had already found the aggravating
circumstance in the guilt phase of the trial (by finding
Bowling guilty of intentional double homicide), it need not
again consider whether there was an aggravating
circumstance in the penalty phase, because under Kentucky
law, the aggravating circumstance was already shown. See
KY. REV. CODE ANN. § 532.025(2)(a)(6) (making an offender
eligible for the death penalty when “[t]he offender's act or
acts of killing were intentional and resulted in multiple
deaths”). The prosecutor remarked as follows:
You cannot recommend the death penalty unless you first
decide that an aggravating factor exists. Did the
Defendant, Thomas Clyde Bowling, Jr. intentionally
cause the death of more than one person. I don’t have to
remind you that you found that last Friday.
J.A. at 5113-14.
This instruction does not appear to violate Bowling’s
constitutional rights. First, an aggravating circumstance may
be found at either the guilt or penalty phase. See Tuilaepa v.
California, 512 U.S. 967, 971-72 (1994). Second, Tuilaepa
notwithstanding, the jury instructions in this case did in fact
require the jury to find the aggravating circumstance beyond
a reasonable doubt in the penalty phase as well as in the guilt

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No. 01-5832 Bowling v. Parker 47
phase, J.A. at 5106, which the jury found, J.A. at 5138. There
is therefore no error.
6. Denigration of Bowling’s Mitigation Evidence
Finally, Bowling argues that the prosecution improperly
told the jury that it did not have to consider Bowling’s
mitigation evidence. Bowling cites to the part of argument
where the prosecutor remarked:
It is a strong, strong, strong case against this Defendant.
And, what about mitigating circumstances that you are
instructed to consider, if you wish; Mitigating
circumstances, whether there are any mitigating
circumstances that would make this entire event less
serious, the brutal murder of two young lives. Are there
any such circumstances? Are there?
J.A. at 5116 (italics added). Bowling argues that the
italicized phrase makes it seem that the jury does not need to
consider the mitigating evidence, which it is constitutionally
required to do under Boyde v. California, 494 U.S. 370, 380
(1990). This could be an improper attempt to suggest to the
jury they may decide not to consider mitigating evidence, but
it seems more likely to be interpreted as a simple argument
that there is no mitigating evidence. See Lent, 861 F.2d at
975 (noting that there can be no constitutional error if “some
other explanation for the prosecutor’s remarks is equally
plausible”). Even if this is error, however, it is an isolated,
unintentional error with no effect on the jury. The jury was
repeatedly told in the instructions that they had to consider
mitigating evidence; for example, an instruction states that the
jury “shall consider such mitigating or extenuating facts and
circumstances as have been presented to you.” J.A. at 5106.
Bowling has therefore not made out a violation of due process
here.
48 Bowling v. Parker No. 01-5832
In summary, we find none of Bowling’s allegations of
prosecutorial misconduct, individually or together, violate due
process.
G. Denial of Fair Jury
Bowling’s next set of claims is that the jury empaneled to
hear his case was unfairly selected. Bowling has two
independent claims for relief. His first argument is that one
of the jurors actually seated was an “automatic death penalty”
juror who should have been excluded. Bowling’s second
argument is that three jurors, whom Bowling eventually
struck with his peremptory challenges, should have been
dismissed for cause. These claims do not have merit.
Bowling’s first claim of improper jury selection is that
Charles Livingston, Juror # 650, should have been excluded
for cause as an “automatic death penalty” juror. See Morgan
v. Illinois, 504 U.S. 719, 728 (1992) (noting that “a capital
defendant may challenge for cause any prospective juror . . .
who will automatically vote for the death penalty in every
case”); see also Wainwright v. Witt, 469 U.S. 412, 424 (1985)
(“[T]he proper standard for determining when a prospective
juror may be excluded for cause because of his or her views
on capital punishment . . . is whether the juror’s views would
prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his oath.”)
(internal quotation omitted). In determining whether a juror
is biased, “deference must be paid to the trial judge who sees
and hears the juror.” Witt, 469 U.S. at 426. Even before
AEDPA, the trial court’s finding that a juror was impartial
was entitled to a presumption of correctness, rebuttable only
upon a showing of clear and convincing evidence. See 28
U.S.C. § 2254(e)(1); Patton v. Yount, 467 U.S. 1025, 1036
(1984) (noting that juror partiality is a question of historical
fact). The question is not whether the trial judge was wrong
or right in his determination of impartiality, but merely
whether his decision was “fairly supported by the record.”
See Witt, 469 U.S. at 433 (internal quotations omitted).

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No. 01-5832 Bowling v. Parker 49
The colloquy between Livingston, the trial court, and the
two sets of counsel was extensive:
Q [(Pros.)]: If you were selected as a jury — juror, and
along with your eleven jurors in a
particular case concluded that the
defendant was guilty of intentional murder,
then could you in the sentencing phase or
the penalty phase consider the entire range
of penalties, twenty years to life, life
without parole, or death?
A: One?
Q [(Court)]: And, decide on one of them; but, could you
consider all three penalties?
A: I could consider them all.
J.A. at 3534-35. The court then asked whether Livingston
could vote for the death penalty, and he answered
affirmatively. The court then asked:
Q: By like token, even though the Defendant was found
guilty beyond a reasonable doubt of intentional
murder, if the other facts of the case made it
appropriate that only twenty years be fixed as the
penalty, you could do that, too?
A: Yes.
J.A. at 3536. However, Livingston was then asked questions
by defense counsel. He first equivocated on whether he could
necessarily or automatically give the death penalty, stating,
“Well, you know, in a trial if it is proven that he is guilty . . .”
J.A. at 3539. He was then asked, “but, given that situation of
a multiple intentional killing, found guilty beyond a
reasonable doubt, that would lead you to automatically vote
for the death penalty?” J.A. at 3540-41. He responded,
“Yes.” J.A. at 3541. Livingston later also stated that he felt
strongly about that. Eventually, the Court intervened and
asked some direct questions:
50 Bowling v. Parker No. 01-5832
Q [(Court)]: Would you consider if mitigating
circumstances were proven to you along
with the rest of the case?
A: I would try.
Q: Would you consider all of the facts in the case,
not just the fact that he had committed a
multiple killing, but circumstances of how,
why, when, and under what mental condition
and all that sort of thing?
A: Uh-huh.
Q: Would you consider all of those factors?
A: Yes, (inaudible).
Q: Then, let me know whether you believe that in
every case where a defendant is convicted of an
intentional killing that the death penalty would
automatically be given or should automatically
be given? Do you believe that? Are you sure
you understand what I am saying now?
[Some clarification.]
* * *
A: Well, what I’m saying now, you are saying if a
man takes another person’s life intentionally —
you know, I feel that when a man takes another
life, he should be punished for that. But, if he
takes someone’s life and he is not in his right
mind, then I would consider (inaudible).
Q: Would you consider other facts that the law
says are mitigating circumstances? Well, I take
it, that if the jury — if you should be on a jury
and you find the Defendant in a particular case
guilty of intentional murder, you wouldn’t
automatically, then, say death penalty and
nothing else considered?
A: No, I would have to consider the other options.
Q: You could consider all of them including
twenty years, the minimum.
A: Yes; I definitely don’t want, you know,
(inaudible) see someone take the death penalty
(inaudible).

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No. 01-5832 Bowling v. Parker 51
Q: Deserve it based upon your finding of all the
facts — in your consideration of all of the facts
in the case?
A: Right.
Q: Not just that one fact, that it was a multiple
killing?
A: Yes.
J.A. at 3542-46. Livingston was then moved out of the room.
Bowling’s counsel challenged him for cause, but the motion
was denied.
Though we recognize this is a close question, ultimately
Livingston is not an “automatic death penalty” juror within
the meaning of Morgan. Livingston did initially state that he
would automatically give the death penalty to those who met
the aggravating factor, but later he expressly said that he
would consider mitigating evidence. The trial court asked
Livingston thorough questions, and Livingston’s responses
showed that he was not someone who would automatically
impose the death penalty in all cases. Morgan requires only
that a juror be excluded if he would automatically “vote for
the death penalty without regard to the mitigating evidence,”
something that Livingston explicitly said he would not do.
Morgan, 504 U.S. at 738. This being the case, given the
deference we give to trial courts’ determinations of
impartiality, we find that there is no constitutional error here,
and alternatively, that the Kentucky Supreme Court’s decision
to that effect, Bowling I, 873 S.W.2d at 177, was not
objectively unreasonable.
Bowling’s second claim is that he was forced to use
peremptory challenges to strike three other jurors who should
have been disqualified for cause, and that he could have used
these peremptories to exclude Livingston. The Supreme
Court has made it clear that this is not a constitutional injury.
See Ross v. Oklahoma, 487 U.S. 81, 88 (1988) (“So long as
the jury that sits is impartial, the fact that the defendant had to
use a peremptory challenge to achieve that result does not
52 Bowling v. Parker No. 01-5832
mean the Sixth Amendment was violated.”); see also United
States v. Martinez-Salazar, 528 U.S. 304, 307 (2000) (noting
that there is no violation if the defendant “elects to cure [the]
error by exercising a peremptory challenge, and is
subsequently convicted by a jury on which no biased juror
sat”). There is therefore no constitutional violation here.
H. Proportionality Review
Bowling’s last claim for habeas relief is that the review by
the Kentucky Supreme Court for proportionality was
unconstitutional. Bowling claims that the Kentucky Supreme
Court erred in not setting aside his death sentence, because it
was excessive and disproportionate to the penalty imposed in
similar cases. This claim fails.
The Supreme Court has held that the Constitution does
require proportionality review, but that it only requires
proportionality between the punishment and the crime, not
between the punishment in this case and that exacted in other
cases. See Pulley v. Harris, 465 U.S. 37, 50 (1984).
Although “[t]here is no federal constitutional requirement that
a state appellate court conduct a comparative proportionality
review,” McQueen v. Scroggy, 99 F.3d 1302, 1333-34 (6th
Cir. 1996), cert. denied, 521 U.S. 1130 (1997), Kentucky law
does require the Kentucky Supreme Court to engage in
comparative proportionality review. See KY. REV. CODE
ANN. § 532.075(3)(c). Although claimed violations of state
law are generally not cognizable on habeas, the Supreme
Court has left room for the argument that a state-law error
could, potentially, “be sufficiently egregious to amount to a
denial of equal protection or of due process of law guaranteed
by the Fourteenth Amendment.” Harris, 465 U.S. at 41.
Bowling therefore argues that the Kentucky proportionality
requirement creates a due-process interest that the Kentucky
Supreme Court violated by not finding his sentence
disproportionate.

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No. 01-5832 Bowling v. Parker 53
As an initial matter, we question whether Kentucky law has
created a due-process interest here. Kentucky requires that its
Supreme Court assess “[w]hether the sentence of death is
excessive or disproportionate to the penalty imposed in
similar cases, considering both the crime and the defendant,”
and also requires it to “include in its decision a reference to
those similar cases which it took into consideration.” KY.
REV. CODE ANN. § 532.075(3)(c) & (5). This circuit recently
held that Tennessee’s proportionality statute, which is similar
to the statute here, did not create a liberty interest because
“the statute only tells the supreme court what questions it
must ask. It does not tell the supreme court how it must do
so, and it does not even define the terms (e.g., arbitrariness)
of these questions. As a result, [the defendant] has no federal
due-process right that was violated.” Coe, 161 F.3d at 352
(citing Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454,
463 (1989)). Similarly here, the statute only explains what
the Kentucky Supreme Court needs to consider — similar
cases, the crime, and the defendant — it does not tell that
court how to make this decision. This suggests under Coe
that no due-process right exists.
Even if there were a due-process interest here, however, the
Kentucky Supreme Court did not violate it. The Kentucky
Supreme Court, in its decision on direct appeal, did conduct
a comparative proportionality review and concluded it did not
show that “this sentence of death is either excessive or
disproportionate to the penalty proposed in other capital
cases.” Bowling I, 873 S.W.2d at 181. In support, the
Kentucky Supreme Court cited four of its cases and
incorporated a list of others. Id. at 181-82.
Bowling argues that the Kentucky Supreme Court only
compared Bowling’s sentence to other crimes where the death
penalty was imposed, but should have compared Bowling’s
sentence to similar crimes where the death penalty was not
imposed. There is no clear support in Kentucky law for the
proposition that the Kentucky Supreme Court must also
consider those additional cases. In fact, Bowling notes this,
54 Bowling v. Parker No. 01-5832
stating that “Kentucky has limited review to cases in which
the death penalty was imposed.” Appellant Br. at 121.
Bowling’s recognition that Kentucky law does not require
consideration of those additional cases reveals that he is
actually arguing that Kentucky has an ineffective framework
for assessing proportionality rather than a claim that
Kentucky misapplied its own framework. This forecloses
Bowling’s due-process argument, however, for there is no
violation of due process as long as Kentucky follows its
procedures. We note that we also have specifically rejected
this type of challenge to Ohio’s proportionality statutes,
stating:
[T]he Ohio Supreme Court has indicated that
proportionality review is required under Ohio Rev. Code
§ 2929.05(A) to the extent that the reviewing court must
consider cases already decided by the court in which the
death penalty had been imposed. Since proportionality
review is not required by the Constitution, states have
great latitude in defining the pool of cases used for
comparison. By limiting proportionality review to other
cases already decided by the reviewing court in which
the death penalty has been imposed, Ohio has properly
acted within the wide latitude it is allowed.
Buell, 274 F.3d at 368-69 (citations omitted). As a result, we
find Bowling’s proportionality argument unconvincing and
dismiss his corresponding claim for relief.
III. CONCLUSION
After having reviewed the record, the briefs, and the
various earlier opinions in this case, and after oral argument,
we conclude that Bowling has not made out a claim for
habeas corpus relief, either by virtue of a single error or
through the cumulative effect of multiple errors. We also
conclude that his claim for an evidentiary hearing should be

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No. 01-5832 Bowling v. Parker 55
denied. We therefore AFFIRM the judgment of the district
court.

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