Matthews v. Simpson (603 F. Supp. 2d 960, 2009)

MEMORANDUM OPINION

JOHN G. HEYBURN, II, District Judge.

In October, 1982, the Commonwealth of Kentucky (the “Commonwealth”) opened its case in Jefferson Circuit Court against Petitioner David Matthews on charges of murder and burglary. The jury eventually convicted Matthews on both charges and on November 17, 1982, the trial court imposed the death sentence. Though much has transpired in the succeeding twenty-six plus years, the Court must now decide whether Matthews’ trial, conviction, and sentence on the murder charge passes constitutional muster or whether Matthews is entitled to a writ of habeas corpus.

Since the petition was filed here, parties have engaged in every manner of discovery, motion practice and appeals. The Magistrate Judge devoted considerable time and effort to this matter. He thoroughly and dispassionately analyzed the issues raised. The Court appreciates his effort and guidance. He has issued Findings of Fact and Conclusions of Law, recommending that Matthews’ petition for writ of habeas corpus be denied in all respects, except for two. He recommended granting the writ as to (1) the trial court’s failure to grant a directed verdict on the murder counts because the Commonwealth did not present evidence of the absence of extreme emotional disturbance (“EED”) as required by the then applicable Kentucky law; and (2) ineffective assistance of appellate counsel because that counsel failed to argue that the term “extreme emotional disturbance” should have been, but was not, defined in the jury instructions in either the guilt or penalty phases of Matthews’ trial. As a consequence, he recommended vacating Matthews’ death sentence and his convictions for the murders of Marlene Matthews and Magdalene Cruse.

Each side has now filed lengthy objections and responses, which in all substantial respects repeat arguments that the Magistrate had considered. Petitioner identified four major objections to the Magistrate’s report while Respondent identified two. It is not necessary to restate the analysis in those instances where the Court substantially agrees with the Magistrate’s analysis and completely with his result. The Court approaches these issues without partisanship on the death penalty debate. On the two issues where the Magistrate Judge recommended granting the writ, however, this Court has arrived at a different view.

•The Court does not pretend to offer the last word, only to explain as clearly as possible its reasons for denying the writ. What is required constitutionally are fair procedures and evidence sufficient to warrant the trial court’s sanction. For the reasons that follow, the Court believes that, irrespective of one’s views of the underlying sanction, the Kentucky courts have met these basic requirements of constitutional fairness and justice.

I.

The Court can resolve Petitioner’s objections in a relatively straightforward manner. In order to qualify for habeas relief, Petitioner’s claims must meet the requirements of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996. See Dennis v. Mitchell, 354 F.3d 511, 517 (6th Cir.2003) (holding that petitions filed after the effective date of AEDPA, such as the petition here, are reviewed under AEDPA). As the Magistrate correctly pointed out, under the AEDPA, Matthews is only eligible for habeas relief based on claims adjudicated in' state court if the adjudication of his claims in state court “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 “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).

Petitioner says that trial counsel was ineffective in his investigation, preparation and presentation of the penalty phase evidence. The Magistrate carefully considered each of these issues. The Court cannot find that Petitioner’s response has either exposed any mistakes in that analysis or has raised any new issues that the Magistrate has not already considered. The Court will adopt the Magistrate’s report and recommendation on this issue.

Petitioner says that the Commonwealth denigrated his EED defense to the extent that it denied him due process. The Magistrate considered this issue and explained the significant differences between the conduct that might constitute such a denial of due process as in Gall v. Parker, 231 F.3d 265 (6th Cir.2000) (“Gall II”), and that here. Petitioner has not raised any issues not already considered. This Court agrees with the Magistrate’s analysis and will adopt his report and recommendation on this issue.

Petitioner objects to the finding that the exclusion of certain additional EED evidence was not a violation of his rights under the Sixth, Eighth and Fourteenth Amendments. Once again, the Court finds no grounds for differing with the Magistrate’s analysis. Moreover, the Court does not perceive any claim under the Eighth Amendment and does not see that Petitioner has raised any new issues which the Magistrate has not already considered. The Court will adopt the Magistrate’s report and recommendation on this issue.

Finally, Petitioner reiterates his argument that Kentucky’s murder statute is unconstitutionally vague because neither the statute nor the judge’s instructions sufficiently define EED. This is a purely legal issue with which the Magistrate has dealt correctly. Petitioner’s objections raise no new issues not already thoroughly considered. The Court will adopt the Magistrate’s report and recommendation on this issue as well.

II.

The Magistrate concluded that because the Commonwealth failed to offer direct evidence of EED in its own case, existing Kentucky law required the trial court to sustain Petitioner’s motion for directed verdict of acquittal. This is a difficult issue mostly because the constitutional and procedural issues have become so confused. This Court concludes that the failure to grant acquittal of the murder charges at the close of the Commonwealth’s case does not constitute a violation of Petitioner’s federal due process rights. Moreover, the evidence presented in the entire case was sufficient for a reasonable jury to have concluded beyond a reasonable doubt that EED was absent from these circumstances. This evidentia-ry conclusion is consistent with the jury’s actual finding some twenty-seven years ago and the subsequent review of the Kentucky Supreme Court.

The challenge here is to analyze constitutional principles in light of procedural reality. To adequately understand Petitioner’s claims regarding the absence of EED, the Court discusses three foundational points. Subsection A examines the role of EED in the Kentucky murder statute at the time of Petitioner’s trial; Subsection B examines the state law requirements for persuasion and production of EED evidence; and Subsection C examines the procedural context in which the trial evidence must be presented and its sufficiency evaluated. Except for perhaps the last issue this Court and the Magistrate Judge are in general agreement.

A.

In 1975, Kentucky revised its penal code, adopting a murder definition derived from the Model Penal Code. The new statutory definition stated, that a person is guilty of murder when:

With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution a person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be. However, nothing contained in this section shall constitute a defense to a prosecution for or preclude a conviction of manslaughter in the first degree or any other crime

Ky.Rev.Stat. § 507.020(l)(a) (emphasis added). This language departed from the common law concept of mitigation, where the killing was committed in the sudden “heat of passion” upon “provocation,” and instead adopted EED as a mitigating factor in homicide trials. See generally Gall v. Commonwealth, 607 S.W.2d 97, 108 (Ky.1980) (“Gall /”) (tracing the history of Kentucky’s murder statute). This statutory revision set in motion decades of confusion that would ultimately ensnare the Commonwealth’s prosecution of David Matthews.

Between 1978 and 1985, the Supreme Court of Kentucky decided a number of death penalty cases concerning the role of EED under the new Kentucky statute. During this time, the court emphatically characterized the absence of EED as an element of the crime of murder. As it said, “the statute makes the [a]bsence of ‘extreme emotional disturbance’ an essential element of the offense of murder.” Bartrug v. Commonwealth, 568 S.W.2d 925, 926 (Ky.1978); see also Edmonds v. Commonwealth, 586 S.W.2d 24, 27 (Ky.1979) (“A failure to act under the influence of extreme emotional disturbance is an element of the offense of murder.”); Henley v. Commonwealth, 621 S.W.2d 906, 908 (Ky.1981) (“The absence of ‘extreme emotional disturbance’ is an essential element of the offense of murder ....”) (citing Bartrug, 568 S.W.2d at 926).

In 1985, the Kentucky Supreme Court changed its view and said that the absence of EED should not be an actual element of the crime of murder. Wellman v. Commonwealth, 694 S.W.2d 696 (Ky.1985). It wrote:

We are continually beset with arguments founded upon “extreme emotional disturbance” despite the articulation of its meaning and impact in Gall v. Commonwealth, Ky., 607 S.W.2d 97, 108-109 (1980). It is our opinion that the principal cause of this problem is the failure of this court, in Gall, to specifically overrule those portions of Ratliff, Bartrug and Edmonds, supra, 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, even in those cases where there is no evidence whatever indicating emotional disturbance. To the extent that such cases declare absence of extreme emotional distress to be an element of the crime of murder, they are expressly overruled. The presence or absence of extreme emotional distress is a matter of evidence, not an element of the crime. They are a matter of the circumstances of each homicide, and there is certainly no obligation to prove the absence of something which was never there.

Id. at 697 (emphasis in original). As a matter of constitutional law, the Kentucky Supreme Court acted well within its prerogative to change state law procedures. One must understand the practical and procedural consequences of this doctrinal change from a trial prospective. Only then may one understand whether Kentucky courts impermissibly reviewed the Matthews trial under the post-1985 law. It is not always easy to keep those concepts separated.

The Court is not the first tasked explaining the role of EED in early 1980’s murder cases. In the year 2000, the Sixth Circuit examined the law of EED closely in another habeas case. See Gall II, 231 F.3d at 288-90. It found that the absence of EED was an element of murder after the 1980 Gall I state court decision and remained so until the Wellman decision in 1985. Id. The analysis in Gall II is sound and this Court should follow it. Knowing that the absence of EED is an element of the crime of murder, and understanding how a trial court should evaluate the evidence of it, are two different matters. The next section explains this.

B.

Kentucky law establishes the who, what, when and how of producing and evaluating trial evidence regarding EED. Two related propositions were undeniably clear at the time of the Matthews trial and sentencing in 1982. First, the burden of persuasion as to the absence of EED lies with the Commonwealth. Second, the burden of production as to the absence of EED lies on the defendant. These two propositions are entirely consistent with the absence of EED as an element of murder in Kentucky.

Beginning in 1978, the Supreme Court of Kentucky specified that the burden of persuasion lay with the Commonwealth. See Ratliff v. Commonwealth, 567 S.W.2d 307, 309 (Ky.1978) (“In the case presently before us, the prosecution carried the burden to satisfy the jury of the absence of extreme emotional disturbance as statutorily defined.”); Bartrug v. Commonwealth, 568 S.W.2d at 926 (“The legislature clearly intended the prosecution to bear the risk of non-persuasion on the element of mitigation.”) (citing Ratliff, 567 S.W.2d 307 (Ky.1978)); Gall I, 607 S.W.2d at 109, fn. 5 (“On all of these issues, when raised by the evidence, the Commonwealth has the burden of proof beyond a reasonable doubt.”); Henley v. Commonwealth, 621 S.W.2d at 908 (“The' absence of ‘extreme emotional disturbance’ is an essential element of the offense of murder, and the legislature intended the Commonwealth to bear the risk of nonpersuasion on this element of mitigation.”) (citing Bartrug, 568 S.W.2d 925 (Ky.1978)). The Commonwealth’s burden of persuasion as to the “absence of EED” flows naturally from its designation as an element of the crime of murder.

While the Commonwealth bears the burden of persuasion, the Supreme Court of Kentucky placed the burden of production upon each defendant. It said so most clearly two years prior to Matthews’ trial:

That is not to say that once the issue [of the absence of EED] is raised (by evidence sufficient to ground a reasonable doubt) the Commonwealth must meet it with countervailing evidence. Unless the evidence raising the issue is of such probative force that otherwise the defendant would be entitled as a matter of law to an acquittal on the higher charge (murder), the prosecution is not required to come forth with negating evidence in order to sustain its burden of proof. Cf. Brown v. Commonwealth, Ky., 555 S.W.2d 252, 257, fn. 6 (1977).

Gall I, 607 S.W.2d at 109 (emphasis added). This language clarifies that the Commonwealth has no absolute duty to produce evidence as to the absence of EED. As a matter of trial procedure, it must do so only where the defendant has produced evidence suggesting the presence of EED. Given the nature of the element (that is, proving a negative), this procedural construction actually makes considerable sense.

There are practical and constitutional consequences of these two propositions. When all the proof is complete, the Commonwealth must have evidence in the record from which a jury could conclude beyond reasonable doubt as to the absence of EED. Now this Court must determine whether the trial court’s procedure for evaluating the Matthews’ trial evidence was constitutionally proper.

C.

The Constitution requires that the burden of proof requirements under Kentucky law not infringe any of a defendant’s rights. Applying that general concept here, this Court must harmonize Gall II and other relevant authority with the particular circumstances in the Matthews trial.

In Gall II, the Sixth Circuit took a historical look at Kentucky law and explained what it means to be an element of a crime, and why it matters. See Gall II, 231 F.3d 265, 288-290 (6th Cir.2000). The Supreme Court had said, “that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The Sixth Circuit took this to mean that the Commonwealth must prove every element of the crime beyond a reasonable doubt. See e.g. Gall II, 231 F.3d at 286. Evaluating all the evidence in Gall’s trial, it held that the Commonwealth had not carried its burden to prove the absence of EED at the trial level. Gall II, 231 F.3d at 287-88. This particular factual result is not important for our purposes.

The important legal issue here is that the Gall trial court had shifted the burden of proof to the defendant for an element of the crime. The trial court did this by requiring the defendant to produce evidence that would sustain an acquittal on the murder charge. The Sixth Circuit found that this change in Kentucky law that placed an unconstitutional burden on the defendant Gall. As it said, the Hanker-son “requirement of ‘some evidence’ is far less onerous than the high burden of proof Kentucky placed on defendants in Gall Gall II, 231 F.3d at 296.

Petitioner raises a related but different claim here. He says that the trial court violated those safeguards by refusing to grant him a directed verdict. To understand this issue requires understanding the proper court procedures. Because the Sixth Circuit resolved the. Gall appeal upon the failure of the evidence as a whole, it had no need to consider the precise procedure that a trial court should follow to ensure defendants their constitutional safeguards. This Court will now do so.

The proper procedure appears as follows. First, the Commonwealth should make its case in chief, introducing evidence regarding the elements of the crime. At this time, the Commonwealth may, but is not required to, introduce evidence regarding the absence of EED. See Gall I, 607 S.W.2d at 109; Hankerson, 432 U.S. at 237 n. 3, 97 S.Ct. 2339. After the close of the Commonwealth’s case, a defendant may put forth a defense if he chooses. In doing so, a defendant may present evidence that at the time of the crime he acted under EED. See Gall I, 607 S.W.2d at 109; Hankerson, 432 U.S. at 237 n. 3, 97 S.Ct. 2339. If a defendant first presents evidence suggesting the presence of EED, the Commonwealth must be able to point to evidence suggesting an absence of EED in order to survive defendant’s motion for a directed verdict on the charge of murder. See Gall II, 231 F.3d at 298; Hankerson, 432 U.S. at 237 n. 3, 97 S.Ct. 2339. To do this, the Commonwealth may point either to inferences from evidence elicited from the defendant’s witnesses or from its own.

Given this procedure, Matthews was not entitled to a directed verdict on the charge of murder at the close of the Commonwealth’s case and it is wrong to suggest that the trial court violated his constitutional rights by failing to so rule at that point in the trial. Rather, a trial court should evaluate the evidence only at the close of all the proof. A defendant is entitled to a directed verdict then if he has introduced evidence suggesting that he acted under the influence of EED and the Commonwealth cannot point to evidence from which a reasonable jury could conclude otherwise beyond a reasonable doubt. Thus, the trial court here followed the proper trial procedures and did not violate Matthews’ constitutional protections by denying his motion at the close of the Commonwealth’s case.

III.

Now the Court arrives at the point of evaluating whether the evidence at the close of trial required a directed verdict of acquittal on the EED issue. AEDPA permits a grant of habeas relief only where the state court reached a decision, “contrary to, or [that] involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). In this context, the AEDPA standard permits relief only if the trial court and the Kentucky Supreme Court unreasonably applied the Winship standard, i.e. shifted the burden to prove the absence of EED on to Matthews, in denying the motion for acquittal. The trial court and Kentucky Supreme Court both believed that the trial record contained sufficient evidence upon which a reasonable jury could convict Matthews, and thus the motion for acquittal was properly denied. It is upon this issue that this Court differs most clearly from the Magistrate Judge.

In these circumstances, the trial court’s denial of the motion for a verdict of acquittal would be contrary to clearly established Federal law only if a reasonable jury could not have found from the evidence the absence of EED. If that were true, then the trial court would have impermissibly shifted the burden onto the defendant to prove the presence of EED when it denied his motion. If, however, a reasonable jury could have concluded from the evidence that the defendant acted in the absence of EED, the trial court properly denied defendant’s motion. The question then is whether the evidence as a whole permits the necessary inferences that Matthews acted in the absence of EED.

A.

The Kentucky Supreme Court has already analyzed the inferences permitted from Matthews’ own witnesses or the Commonwealth’s questioning of them. It wrote:

Another of appellant’s arguments in connection with the findings of intentional murder is that the evidence was insufficient to prove absence of emotional disturbance.

While it is certainly true that appellant tried hard to make a case for application of the qualifying phrase, “acting under the influence of extreme emotional disturbance” as set out in KRS 507.020(l)(a), by presenting extensive evidence of preexisting serious domestic problems and through the testimony of a psychiatrist, it is equally true that the evidence regarding appellant’s conduct before, during and after the crimes was more than sufficient to support the jury’s findings of capital murder. It is not necessary for the Commonwealth to produce direct evidence, by confession or otherwise, of absence of extreme emotional disturbance. See Gall v. Commonwealth, Ky., 607 S.W.2d 97, 107 (1980).

The proof that appellant was acting under the influence of extreme emotional disturbance was far from overwhelming. In addition to the circumstances of the crime, the proof was that when he returned to his mother’s house after the crime, about 6:00 to 6:30 a.m., he took steps to hide the gun and clean his clothes. Shortly thereafter, he gave a false statement to the police.

Matthews v. Commonwealth, 709 S.W.2d 414, 420-421 (Ky.1985). For these reasons, it concluded that the Commonwealth had met its burden of persuasion. This does not conclude this Court’s inquiry. Notwithstanding the Kentucky Supreme Court’s reasonable analysis, this Court must make its own assessment.

B.

The Court will focus on several key areas of the evidence. ’

A central dispute about the trial evidence concerns the impact of Dr. Chut-kow’s -expert testimony. At trial, he testified that Matthews was affected by EED when he committed the murders. The Commonwealth did not present its own expert witness. However, the absence of an expert for the Commonwealth certainly does not decide this issue. See Hayes v. Commonwealth, 625 S.W.2d 583, 586 (Ky.1981) (holding that the cross-examination of a defense expert may sufficiently raise a factual issue regarding EED). A jury is free to reject expert testimony. Indeed, EED is not a mental disorder that even requires expert testimony to establish it.

The Commonwealth cross-examined Dr. Chutkow and there is ample reason in the evidence for the jury to have rejected his conclusions. For instance, the jurors heard that Matthews went to great lengths to procure the murder weapon by borrowing money from his girlfriend and falsely claiming that he needed to purchase it for his mother’s protection and by arranging for the purchase of the gun from a neighborhood dealer at the dealer’s bar. They also heard evidence of Matthews’ conversations with his oldest brother. All of this evidence certainly permitted an inference as to Matthews’ premeditation and his mind set prior to his upcoming crime, the very antithesis of EED.

The method of committing this crime would suggest to reasonable jurors some quiet contemplation and thought on Matthews’ part. After Matthews broke into the house, he spent several hours before finally finishing his crime spree. After the crimes, he had discussions with his mother that suggest deliberation and understanding of the surrounding events. The same can be said regarding his conversations with authorities after his arrest. Moreover, the absence of EED could be inferred from the careful steps that Matthews took to conceal his crimes during and after their commission. Though this evidence is circumstantial, the Sixth Circuit has said, the jury may examine the evidence of the defendant’s conduct and “infer what he thought and what he intended to do from what he did and failed to do — the quintessential jury responsibility in a circumstantial-evidence case.” DeLisle v. Rivers, 161 F.3d 370, 389 (6th Cir.1998).

The evidence presents an even more precise evidentiary question. Did the jury have evidence from which to infer the absence of EED at the time of the crime? The Commonwealth and defense presented evidence regarding Petitioner’s conduct before, during, and after the crime. A jury may consider such evidence to determine a defendant’s mental state at the time of the crime. See Jackson v. Virginia, 443 U.S. 307, 325, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This Court agrees that having evidence of Matthews’ mental state before and immediately after the crimes allows the jury a reasonable basis for inference about his mental state while committing the crime. This is logical, sensible and fair. If this were not true, then this jury could never find the absence of EED, because in this case, as in many others, no witnesses to the crime remain alive, other than Matthews himself.

C.

No one disputes that Matthews presented some evidence of EED. No doubt, a person could look at this evidence and agree with it. But that evidence was not so compelling to require a jury to do so. Thus, after the close of the evidence, it was for the jury to decide whether Matthews acted under the influence of EED. The cumulative effect of the evidence demonstrates that the trial court did not err when it denied Matthews’ motion for a directed verdict and allowed the jury to do its duty.

To require the Commonwealth to introduce evidence of the absence of EED in its own case would be contrary to Kentucky law as it existed in 1982, or at any time after 1976. What is required is that at the conclusion of the evidence, a reasonable jury be able to find beyond a reasonable doubt the absence of EED. This Court concludes that substantial evidence in this case allowed reasonable jurors to do so. Thus, as a matter of evidence, the Kentucky Supreme Court correctly analyzed the sufficiency of the proof as submitted in the Matthews’ trial. The Court finds no constitutional basis for disregarding the import of that evidence.

IV.

Petitioner’s last argument is that Matthew’s appellate counsel failed to argue that Kentucky change its law to require a definition of EED in the jury instructions. Had Matthews’ appellate counsel argued for a change of Kentucky law, his current counsel postulates, he might have been successful. Thus, failure to do so, constitutes ineffective assistance of counsel. This conclusion depends upon the logic that had Matthews raised the issue, the Supreme Court of Kentucky would have changed its state law earlier than it actually did in McClellan v. Commonwealth, 715 S.W.2d 464 (Ky.1986). The Kentucky Supreme Court declined the opportunity to change the law presented in other eases about the same time. Regardless, this Court disagrees that this is proper grounds for a writ of habeas corpus in these circumstances. The reasons for this rule are quite sound.

At the time Matthews argued his case on appeal, the Supreme Court of Kentucky did not require a definition of EED in trial instructions. See Edmonds v. Commonwealth, 586 S.W.2d at 27. Therefore, the Matthew’s trial court’s handling of the instructions was indisputably correct under then existing Kentucky law. In 1986, the Supreme Court reversed itself, holding that a definition was required. It did not make application of the new rule retroactive, however. See Smith v. Commonwealth, 784 S.W.2d 437, 449 (Ky.1987). Thus, the only route for Matthews to have been successful was if his case, rather than McClellan, had been the case that changed Kentucky law.

Appellate counsel is judged by the same effectiveness standard as trial counsel. See Bransford v. Brown, 806 F.2d 83, 86 (6th Cir.1986). For an ineffective assistance of counsel claim to succeed petitioner must show two things. First, “that counsel’s representation fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

The Court does not believe that appellate counsel can be said to have fallen below an objective standards of reasonableness because he decided against arguing an issue upon which Kentucky law had been settled or at least stable for seven years. The Court can find no support for the idea that counsel must foresee changes in the law and argue settled issues or open themselves to a claim of ineffective assistance. To hold otherwise would mean that for habeas corpus purposes every change in the law has a retroactive effective, regardless of state or federal holdings to the contrary. Thus petitioner fails to satisfy the first prong of the Strickland test.

For similar reasons, the Sixth Circuit has previously addressed an ineffective assistance of counsel claim where appellate counsel failed to anticipate a change in the law. Lott v. Coyle, 261 F.3d 594, 609 (6th Cir.2001) (citing Alcorn v. Smith, 781 F.2d 58, 62 (6th Cir.1986)). In Lott, the issue arose because it was unclear under Ohio law whether strict compliance, as opposed to substantial compliance, was required to execute a valid jury waiver. Id. Lott did not strictly comply with the waiver requirements. Id. at 606. Lott’s attorney did not argue that strict compliance was necessary on appeal, but three years later the Ohio Supreme Court ruled that strict compliance was required. Id. at 609. The Sixth Circuit held that this was not ineffective assistance of counsel. Id.

In the Lott case, the law was confused, some Ohio courts required strict compliance while others did not. Id. In the instant case, however, Kentucky law was settled rather than confused. No EED definition was required in the jury instructions. See Edmonds v. Commonwealth, 586 S.W.2d at 27. If the failure to argue a confused point of law, which has precedent on both sides, does not qualify as ineffective assistance of counsel, then the failure to argue against a reasonably settled issue of law surely does not qualify.

Finally, it is not gross incompetence to fail to predict that the Kentucky Supreme Court might change its existing views. Looking at all of the ongoing cases at the time of Matthews’ appeal, it is impossible to logically believe that reversal of the EED definition rule was “reasonably probable.” It is mere speculation to suggest that appellate counsel could have convinced Kentucky’s highest court to act earlier than it actually did. Thus, Petitioner fails to meet the second prong of the Strickland test.

For all these reasons, this Court concludes that Matthews’ former appellate counsel were not grossly incompetent when they neglected to argue for a change in Kentucky law.

V.

As to all other matters contained in the Magistrate’s report and recommendation, this Court will adopt the analysis contained in the Magistrate’s report and the conclusion that none are sufficient to justify issuance of a writ of habeas corpus.

The Court will enter an order consistent with this Memorandum Opinion.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATION

JAMES D. MOYER, United States Magistrate Judge.

I. INTRODUCTION

On June 29, 1981, the petitioner, David Eugene Matthews, was arrested and charged with murder and burglary in connection with the deaths of his wife, Mary “Marlene” Matthews, and his mother-in-law, Magdalene Cruse. He was tried before a Jefferson Circuit Court jury in Louisville, Kentucky, on October 5-8, 1982, convicted on all counts, and sentenced to death. The evidence adduced by the Commonwealth at trial was substantial, and it is quite clear to this court that Matthews perpetrated the acts for which he stood trial. It is equally clear, however, that two of Matthews’ many challenges to the constitutionality of his convictions and sentence present problems of such a constitutional magnitude that this court must recommend issuing the requested writ of habeas corpus. These two issues are: 1) the trial court’s failure to grant a directed verdict on the murder counts where the Commonwealth did not prove the absence of extreme emotional disturbance beyond a reasonable doubt, as required by the then-applicable Kentucky murder statute; and 2) appellate counsel’s failure to argue on direct appeal that the term “extreme emotional disturbance” should have been, but was not, defined in the jury instructions in either the guilt or penalty phase of Matthews’ trial.

An outline of the court’s analysis is as follows:

I. INTRODUCTION. .974

II. FINDINGS OF FACT. CD <3 05

A. Proof at Trial. CD -3 05

B. Direct Appeal. CD -q -^1

C. State Postconviction Proceedings CO -3 00

D. Federal Posteonviction Proceedings.978

III. CONCLUSIONS OF LAW.981

A. Standard of Review.981

B. Burden Shifting of Extreme Emotional Disturbance.985

C. Failure to Define Extreme Emotional Disturbance.993

D. Ineffective Assistance of Counsel.997

1. Failing to investigate, prepare, and present evidence at guilt and penalty phases.998

a. Mental illness in Matthews’ family.1010

b. Matthews’ mental and physical history.1011

c. Matthews’ alcohol and drug abuse.1012

d. Alcoholism in Matthews’ family and family background.1012

2. Use of an expert to establish EED.1016

a. Selection of Dr. Chutkow.1017

b. Preparation of Dr. Chutkow.1018

e. Utilization of Dr. Chutkow.1020

3. Counsel failed to strike Juror Kavich for cause.1024

4. Counsel failed to request and tender adequate intoxication instructions .1026

5. Failure to object to Commonwealth’s misstatements of law regarding EED during closing arguments.1027

6. Failure to place excluded evidence into the trial record by avowal... .1028

7. Failure to request an admonition on the sex abuse and burglary warrants.1030

8. Ineffective assistance of appellate counsel.1032

a. Trial court’s failure to define EED.1033

b. Remaining ineffective-assistance-of-appellate-counsel claims.1036

E. Testimony-Related Issues.1.1039

1. Excluded evidence.1039

2. Included evidence.1042

a. Burglary warrant.1043

b. Sex abuse warrant.1045

c. Tape recorded confession.1046

d. Communications with Dr. Chutkow.1047

F. Burglary Conviction and Sentence.1048

G. Double Counting of Burglary.1052

H. Introduction of Sentencing into the Guilt Phase.1053

I. Alleged Capital Sentencing Instruction Errors .1055

1. Procedurally defaulted claims.1055

2. Remaining assignments of error.1055

a. Sentence less than death.1055

b. No instruction was given on statutory mitigating circumstances-1057

c. No instruction was given on applicable mitigation evidence.1058

d. The penalty phase verdict forms were impermissibly weighted in favor of death .1059

J. Jury Selection.1059

1. Inadequate examination of the venire panel.1059

2. Venireman Eaton.1061

3. Venireman Furlong.1062

K. Jury Deliberation Related Issues.1063

1. Jury considered parole.1063

2. The trial court’s refusal to sequester the jury.1066

L. Use of “recommend” diminished jury’s role at sentencing.1068

M. Prosecutorial Misconduct.1072

1. Strikes on the death-hesitant but death-qualified jurors.1072

2. Examination of witnesses.1073

a. Lawrence Cruse.1073

b. Carol Engle.1074

e. Dr. Chutkow.1074

i. Sex abuse and burglary warrants.1075

ii. Dr. Chutkow’s investigation.1075

hi. Prosecutor’s statement that Matthews “kicked down the door”.1075

iv. Sexual intercourse with Marlene Matthews.1076

3. Guilt phase closing arguments.1077

a. Sexual relations.1077

b. Dr. Chutkow and extreme emotional disturbance.1078

c. Intoxication.1078

d. Reasonable person standard.1080

e. Denigration of defense.1080

f. Empty chair reference.1083

4. Closing argument at sentencing.1083

N. Refusal to Transcribe Grand Jury Proceedings.1086

O. Right of Access to Court Records Relating to Proportionality Review.1086

P. Jefferson County Jail Mental Health Records.1088

Q. Length of Confinement is Unconstitutional.1092

IV. CERTIFICATE OF APPEALABILITY .1093

V. RECOMMENDATION. .1094

II. FINDINGS OF FACT

A. Proof at Trial

1) The facts underlying Matthews’ convictions are fully recounted in the Kentucky Supreme Court’s decision on direct appeal. Matthews v. Commonwealth, 709 S.W.2d 414 (Ky.1985) (hereinafter “Matthews I ”). This court presumes the state court’s findings of fact to be correct. See 28 U.S.C. § 2254(e)(1). The Kentucky Supreme Court recited the facts underlying Matthews’ convictions as follows:

Matthews and his wife, Marlene, had been married for about two and a half years before the murders. During the last year their marriage had undergone repeated periods of separation, during which Matthews lived with his mother. These separations were marked by extreme hostility, and Marlene often swore out criminal warrants against her husband for harassment.

In the five week period immediately before the murders occurred, Marlene had procured two separate warrants against Matthews. The first charged him with sexual abuse of his step-daughter, Marlene’s six year old daughter. The second charged him with burglary by breaking into Marlene’s residence. Matthews had been arrested on the first warrant and released under a court order forbidding him further contact with Marlene. He was not served with the burglary warrant until after the crimes at issue had occurred.

During the early morning hours of June 29, 1981, the victims were murdered in separate rooms at the home occupied by Marlene and her daughter. The house was rented from Marlene’s family. Both victims were shot with a .22 caliber revolver fired from no more than eighteen inches away. Apparently Marlene died almost immediately. Marlene’s father, Lawrence Cruse, came over the next morning and discovered her mother still alive, but mortally wounded. She had been shot in the head. He also found his daughter who had been shot twice, once in the chest and once in the back. Cruse found the side door screen had been cut and the glass broken, and a pocketknife on the steps.

[Matthews] did not testify at trial. The evidence that he had broken into the house and that he was responsible for the shootings, however, was both overwhelming and uncontradicted. Defense counsel conceded from the outset of the trial that [Matthews] killed the two victims. His defense consisted of presenting evidence that he was acting under the influence of extreme emotional disturbance at the time, so that it was manslaughter, not murder.

To establish extreme emotional disturbance, appellant relied on the combined effect of testimony from a number of people about the long history of significant marital strife. Appellant also introduced testimony from a psychiatrist [Dr. Lee Chutkow] to show that, at the time of the homicides, he was suffering from an adjustment disorder, designated “a temporary emotional and behavioral disturbance” causing temporary impairment of judgment, poor self-control and diminished awareness.

In the account of the events on the night of the murder given by the appellant to the psychiatrist, the appellant said that he broke into his wife’s home at about 1:00 or 2:00 a.m. He found his mother-in-law in bed and shot her. She was left mortally wounded. He then went into the next room, had sexual relations one or two times with his wife, stayed with her until about 6:00 a.m., and shot and killed her. He shot his wife twice because he thought he had missed the first time.

Matthews I, 709 S.W.2d at 417.

2) Matthews was tried in Jefferson Circuit Court in October 1982. See St. Ct. Rec., Trial Testimony and Proceedings, Vol. I-VII. The jury found him guilty of the murder and burglary charges, TE VII at 679-80, and fixed his sentence at death for the murders, id. at 735-38. On November 17, 1982, the trial court entered final judgment and imposed his sentence. St. Ct. Rec., Tr. Ct. Rec., Vol. II at 285-88.

B. Direct Appeal

3) Matthews raised thirty-seven separate assignments of error on direct appeal. Matthews I, 709 S.W.2d at 417. Though the Kentucky Supreme Court “considered all of the[ ] issues” raised in the appeal, it provided a substantive analysis of only eight claims. Id. at 417-18.

4) On September 26, 1985, (rehearing denied May 22, 1986), the Kentucky Supreme Court unanimously affirmed Matthews’ convictions and sentence and denied his request for rehearing. Id. at 424. On October 6, 1986, the United States Supreme Court denied Matthews’ petition for a writ of certiorari. Matthews v. Kentucky, 479 U.S. 871, 107 S.Ct. 245, 93 L.Ed.2d 170 (1986).

C. State Postconviction Proceedings

5) On December 9, 1986, Matthews filed his original motion to vacate judgment pursuant to Rule 11.42 of the Kentucky Rules of Criminal Procedure (“RCr 11.42”). TR III at 390-97. The motion lay dormant until June of 1990 when the Commonwealth filed a supplemental response. Id. at 414-24. On August 10, 1990, Judge Shobe, the original trial judge, overruled the RCr 11.42 motion. Id. at 425.

6) Matthews thereafter filed a motion for enlargement of time for seeking reconsideration of that decision and to file an appeal to the Kentucky Supreme Court. Id. at 436-39. On October 1,1990, Matthews filed a motion to amend his previously denied RCr 11.42 motion, a motion to reconsider the court’s denial of his RCr 11.42 motion, and a motion to hold the previously denied RCr 11.42 motion in abeyance. TR IV at 456-85. On December 23, 1991, Judge Shobe entered an order that vacated the judgment imposing Matthews’ death sentence. TR V at 702-OS. Judge Shobe found that Matthews was entitled to a new sentencing proceeding because the trial court used the word “recommend” when instructing the jury during the penalty phase of Matthews’ trial. Id. The Commonwealth sought reconsideration of that order, but on February 18,1992, the trial court denied the motion. Id. at 744-45.

7) On February 24, 1992, the Commonwealth filed an original action in the Kentucky Supreme Court, seeking an order setting aside the trial court’s December 23, 1991, order. Id. at 747-52. On December 17, 1992, the Kentucky Supreme Court held that Judge Shobe’s order was void and reinstated the original judgment and sentence. TR VI at 764-70, 775. On November 23, 1994, the Kentucky Supreme Court remanded the matter to Jefferson Circuit Court for immediate ruling on a pending motion for reconsideration of its order denying Matthews’ petition for rehearing. Id. at 776. On July 29,1996, the circuit court denied the .motion, leaving in place the August 10, 1990, decision overruling Matthews’ RCr 11.42 motion. Id. at 882-90.

8) Matthews appealed the denial of his RCr 11.42 motion to the Kentucky Supreme Court. On November 27, 1997, in an unpublished decision, the Kentucky Supreme Court affirmed the trial court’s decision to deny Matthews relief under RCr 11.42. Matthews v. Commonwealth, Case No. 96-SC-805-MR (Ky. Nov. 20, 1997) (hereinafter “Matthews II”), DN 32, at app. On March 19, 1998, the Kentucky Supreme Court denied Matthews’ motion for a rehearing, and on October 5, 1998, the United States Supreme Court denied his petition for a writ of certiorari. Matthews v. Kentucky, 525 U.S. 860, 119 S.Ct. 146, 142 L.Ed.2d 118 (1998).

D. Federal Postconviction Proceedings

9) On October 5, 1998, Matthews filed a miscellaneous action in the district court in which he sought pauper status, appointment of counsel, a stay of execution, and an extension of time within which to file his federal habeas corpus petition. Matthews v. Parker, Misc. Action No. 3:98MC-18-H. The district court granted his motions and directed him to file his habeas corpus petition by February 12, 1999, which he did. DN 23 & 25. The district court entered an order directing the clerk to effect service of the petition on respondent and the Attorney General for the Commonwealth of Kentucky, directing respondent to file an answer to the petition within twenty days from the entry of the order, and referring this action to the undersigned for a report and recommendation. DN 26. Respondent filed a motion for enlargement of time in which to file an answer, DN 27, which this court granted, setting May 11, 1999, as the new answer date, DN 28.

10) On May 7, 1999, almost three months after filing his first petition, but before respondent’s answer was filed, Matthews filed a first amended petition for writ of habeas corpus pursuant to Fed. R.Civ.P. 15. DN 31. In the amended petition Matthews added three broad claims for relief not previously raised in any litigation: 1) claims concerning the alleged suppression of information relating to Matthews’ detention in the Jefferson County jail; 2) claims premised on the application of the Kentucky Racial Justice Act; and 3) an argument that confinement under a sentence of death renders eápital punishment disproportionate to the crime of murder. Id.

11) Respondent filed an answer to the original petition with an accompanying memorandum of law on May 11,1999. DN 32 & 33. By order entered June 18, 1999, this court directed the clerk to effect service of the first amended petition for writ of habeas corpus on respondent and the Kentucky Attorney General. DN 38. The order further directed respondent to file an answer to the first amended petition within twenty days from entry of the order. Id. Respondent filed an answer and accompanying memorandum of law on July 7, 1999. DN 42 & 43. This court granted Matthews’ request to file a reply brief and traverse, DN 47, which Matthews filed on August 2,1999. DN 48.

12)On August 31, 1999, Matthews filed a motion for discovery. DN 53. Matthews requested an order requiring the Commonwealth to produce any records related to Matthews’ mental health treatment while incarcerated in the Jefferson County jail, all grand jury records related to Matthews, all exculpatory evidence related to Matthews’ case, all data kept by the Kentucky Supreme Court pursuant to Ky.Rev.Stat. § 532.075(6), and an assortment of other records related to racial animus in the imposition of the death penalty in Kentucky. Id. This court granted Matthews’ request for discovery related to records concerning his detention in the Jefferson County jail. DN 69. Respondent complied with the court’s order by producing a handful of documents, some of which related to the mental health treatment Matthews received during his pretrial detention. DN 70.

13) Matthews also filed a motion for an evidentiary hearing. DN 52. He sought an evidentiary hearing on four issues: 1) ineffective assistance of counsel at the guilt phase; 2) ineffective assistance of counsel at the penalty phase; 3) claims arising out of the suppression of material held by the Jefferson County jail; and 4) ineffective assistance of appellate counsel. Id. This court granted Matthews’ request for an evidentiary hearing on the ineffective assistance of appellate counsel claim, DN 94, but denied a hearing on the remaining three issues, DN 87. This court conducted an evidentiary hearing on the ineffective assistance of appellate counsel claims on July 7 and 25, 2000. DN 122 & 126. After the hearing, the parties submitted additional briefing on the ineffective assistance of appellate counsel issue. DN 130,132-33.

14) On April 20, 2000, Matthews filed in Jefferson Circuit Court a “Motion Pursuant to RCr 11.42 to Vacate, Set Aside or Correct his Sentence, or, alternatively, Motion for Relief From Final Judgment Pursuant to CR 60.02.” DN 91, attach. 1. This motion asserted the three “new” claims raised one year before in Matthews’ first amended petition for writ of habeas corpus. Id. Matthews then filed a motion in this court on April 27, 2000, requesting the court to stay these proceedings and hold them in abeyance pending resolution of his recently filed state court motion. Id. Matthews filed a renewed motion to stay on December 5, 2000. DN 141. In his renewed motion, Matthews explained that on July 19, 2000, the Jefferson Circuit Court entered an order denying Matthews’ RCr 11.42 motion, and that Matthews had appealed that decision to the Kentucky Court of Appeals, where the matter was then pending. Id. Matthews again requested that this court stay these habeas proceedings pending resolution of his appeal in Kentucky state court. Id.

15)Based on the state of the law at the time, the undersigned recommended that the motion to stay be denied and Matthews’ case be dismissed without prejudice. DN 157. On August 1, 2001, the district court entered an order adopting the report and recommendation and dismissing this action without prejudice for failure to exhaust all of the presented claims in state court. DN 170. The district court later granted a certificate of appealability to Matthews on the issue of whether its decision to deny Matthews’ motion to stay his petition pending exhaustion of his state remedies was correct. DN 185.

16) On January 17, 2002, in an unpublished opinion, the Kentucky Supreme Court entered an order affirming the Jefferson Circuit Court’s denial of Matthews’ RCr 11.42 motion. See Matthews v. Commonwealth, 2000-SC-1134-TG (Ky. Jan. 17, 2002) (hereinafter “Matthews III”), DN 183, attach 2.

17) On April 17, 2002, Matthews filed a motion with the Sixth Circuit seeking a remand to the district court for consideration of his now fully exhausted and briefed habeas petition. DN 188. On October 24, 2003, the Sixth Circuit granted the motion to remand the case to the district court and instructed the district court to review its prior order of dismissal in light of Palmer and other recent decisions from the Sixth Circuit. Id. After doing so, the district court vacated its pri- or order of dismissal. DN 196. Because Matthews had exhausted his state court remedies in the interim, the district court ordered this case restored to the court’s active docket, and again referred this matter to the undersigned for a report and recommendation. DN 190,196.

18) Following remand, this court concluded that reconsideration of Matthews’ request for an evidentiary hearing on his ineffective-assistance-of-eounsel claims at the guilt and penalty phases of Matthews’ trial was necessary. DN 204. After a review of the record, this court concluded that, by no fault of Matthews, the factual basis of these claims was not developed in state court. Id. Accordingly, this court partially vacated its March 29, 2000, decision denying Matthews’ motion for a hearing on his ineffective-assistance-of-counsel claims, DN 87, and granted Matthews an evidentiary hearing regarding those claims. DN 204.

19) An evidentiary hearing was held on March 2 & 3 and July 19, 2006. At the hearing, Matthews presented his direct proof through eleven sworn affidavits from various family members and friends. DN 236. The Commonwealth was then given an opportunity to cross-examine the witnesses live on the stand, and Matthews was given an opportunity for re-direct. Id. When the hearing resumed on July 19, 2006, Matthews presented expert testimony from Dr. Robert Lee Smith regarding Matthews’ mental health diagnosis at the time of his trial. DN 241. The court also received into evidence the deposition transcripts of David Busse and Christopher Rivers, Matthews’ trial counsel, DN 233, and the mental health records of Matthews’ maternal aunt, Mary Louise Zock-lein. After the hearing, the parties submitted final post-hearing memoranda as ordered by the court. DN 243 & 244.

20) This matter is now ripe for a decision on the claims presented in Matthews’ petition and amended petition.

III. CONCLUSIONS OF LAW

A. Standard of Review

1) Since Matthews filed his petition for writ of habeas corpus on February 12, 1999, DN 23, review in this case is governed by Chapter 153 of the Antiterrorism and Effective Death Penalty Act (“AED-PA”) of 1996. Dennis v. Mitchell, 354 F.3d 511, 517 (6th Cir.2003); Lindh v. Murphy, 521 U.S. 320, 327-29, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The fact that Matthews was convicted before the AEDPA’s enactment does not alter this conclusion. Williams v. Bagley, 380 F.3d 932, 942-43 (6th Cir.2004).

2) Matthews’ argument that application of the AEDPA to his case would violate the Ex Post Facto Clause of the United States Constitution has no merit. The Sixth Circuit rejected an identical argument in Seymour v. Walker, 224 F.3d 542, 560 (6th Cir.2000), explaining that because the AEDPA “ ‘neither made criminal a theretofore innocent act, nor aggravated a crime previously committed, nor provided a greater punishment, nor changed the proof necessary to convict,’ its application ... does not violate the Ex Post Facto Clause.” Id. (quoting Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977)).

3) Equally without merit is Matthews’ claim that application of the AED-PA would violate the Suspension Clause of the United States Constitution. The Suspension Clause provides that “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” U.S. Const. art. I, § 9, cl. 2. The United States Supreme Court has found that habeas legislation violates the Suspension Clause only when it unreasonably “renders the habeas remedy ‘inadequate or ineffective’ to test the legality of detention.” Miller v. Marr, 141 F.3d 976, 977 (10th Cir.1998) (quoting Swain v. Pressley, 430 U.S. 372, 381, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977), and United States v. Hayman, 342 U.S. 205, 223, 72 S.Ct. 263, 96 L.Ed. 232 (1952)). While the AEDPA certainly established new guidelines for habeas cases, it did not “suspend” the right of a prisoner to seek habeas relief contrary to article I, § 9, clause 2 of the Constitution. See, e.g., Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). The AEDPA leaves habeas petitioners with a reasonable opportunity to have their claims heard on the merits. Accordingly, the AEDPA does not unconstitutionally suspend the writ of ha-beas corpus.

4) Under the AEDPA,

(d) An application for writ of habeas corpus on behalf of a person in custody pursuant to the'judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(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.

(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

28 U.S.C. § 2254.

5) The United States Supreme Court has interpreted the provisions regarding a state court decision that is “contrary to” or an “unreasonable application of’ clearly established federal law. See Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In Williams, the Court determined that under the “contrary to” clause, a federal habeas court may grant a writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Id. at 405, 120 S.Ct. 1495. Under this standard, an unreasonable application is an objectively unreasonable application of the federal law set forth in decisions of the United States Supreme Court. A state court’s ruling violates the “unreasonable application” clause “if the state court identifies the correct governing legal rule from [the Supreme] Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s case.” Id. at 407, 120 S.Ct. 1495. An unreasonable application can also occur where “the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. Unreasonableness is an objective standard, and the fact that another court has applied the law in the same manner is not dispositive. Id. at 409-10, 120 S.Ct. 1495. “Unreasonable” is distinct from “incorrect;” even if a state court incorrectly applies a rule of law, that error will not warrant habeas relief unless the application was objectively unreasonable. Mitchell v. Esparza, 540 U.S. 12, 18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003). The Sixth Circuit has stated that “the district court could find the state court determinations unreasonable ‘only when it can be said that reasonable jurists considering the question would be of one view that the state court ruling was incorrect,’ ” and its error “ ‘would not be debatable among reasonable jurists.’” Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir.1998) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), overruled in part on other grounds, Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)).

6) Under the AEDPA, “clearly established federal law” means “holdings, as opposed to the dicta of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. 1495. “ ‘As is dictated by the statute, [reviewing courts] may not look to lower federal court decisions in deciding whether the state decision is contrary to, or an unreasonable application of, clearly established federal law.’ ” Smith v. Stegall, 385 F.3d 993, 998 (6th Cir.2004) (quoting Doan v. Brigano, 237 F.3d 722, 729 (6th Cir.2001), abrogated on other grounds by Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). Reviewing courts may consider such lower federal court decisions, however, to the extent that such decisions reflect review and interpretation of “ ‘relevant Supreme Court case law to determine whether a legal principle or right had been clearly established by the Supreme Court case law.’ ” Id. (quoting Hill v. Hofbauer, 337 F.3d 706, 716 (6th Cir.2003)). Reviewing courts are “also bound by any prior Sixth Circuit decisions concluding that federal law on a particular issue has been ‘clearly established’ by certain holdings of the Supreme Court.” Id. (citing Rule 206(c) of the Sixth Circuit Rules).

7) Even where the state court decision does not specifically cite to relevant federal case law, the deferential AEDPA review standard applies. Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam) (holding that the state court is not required to cite United States Supreme Court cases, or even be aware of them, to be entitled to AEDPA deference, “so long as neither the reasoning nor the result of the state-court decision contradicts them”). However, the deferential standard of the AEDPA does not apply where the state court has not adjudicated the merits of the particular claim. Clinkscale v. Carter, 375 F.3d 430, 436 (6th Cir.2004) (citing Maples v. Stegall, 340 F.3d 433, 436 (6th Cir.2003) (“Where as here, the state court did not assess the merits of a claim properly raised in a habeas petition, the deference due under AEDPA does not apply.”) (citing