1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

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ELECTRO NIC CIT

ATION: 2004 FED App . 0173P (6th C ir.) File Name: 04a01 73p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
RALPH S TEPH ENS B AZE , J R ., Petitione r-Appell ant,

v.

P HILI P P ARKER , Warden, Ke nt uc ky S ta te Pe ni te nt ia ry, Respondent-Appellee. X

- - - -
> , - - - - N No. 03-5112

Appeal from the United States District Court for the Eastern District of Kentucky at Ashland. No. 01-00031—Henry

R. Wilhoit, Jr., District Judge. Argued: December 10, 2003
Decided and Filed: June 9, 2004 Before: BOGGS, Chief Judge; and COL E and COOK, Circuit Judg es.

_________________ COUNSEL

ARGUED: Timothy T. Riddell, PERCH & TOBY, Lexington, Kent

uc ky, for Appe llant. David A. Smith, OFFI CE OF THE ATTORNEY G ENERAL , Frank

fort, Ke nt uc ky, for Appellee. ON BRI EF: Timothy T. Ridd e ll, 2 Baze v. Parker No. 03-5112

Milton Coburn Tob y, PERCH & T OB Y, Lexington, Ke nt uc ky, for Appellant. David A. Sm it h, Br ia n T . J ud y, OFFI CE OF THE ATTORNEY G ENERAL , Frank

fort, Kentucky, for

Appellee.
BOGGS, C. J., delivered the opinion of the court, in which COOK, J., joined. COLE, J. (pp. 29-3 8), deliv ered a s eparat e opinion concurrin

g in par t and disse

nting in p art.

_________________ OPINION

_________________ BOGGS, Chief Judge. Pet it ioner Ralph Baze, Jr. was convicted of the 1992 murders of

Sheriff Steven Bennett and Deputy Sheriff Arthur B riscoe, whom he shot inthe back when they attempte d to arre st him

pursuant to an outstanding Ohio multiple-felony arr

est warrant. The jury sentence d Baze to death. The Kentucky Supreme Court affirm edhis convictionand

sentence on direct appeal, and it denied relief instate post-conviction proceedings. Baze petitioned for federal habeas relief, pursuant to 28 U.S.C. § 2254, which the United States District Court for the Eastern District of Kentucky denied in a series of exhaustive opinions. For the
reasons elaborated

upon b elow, we affi rm the dist rict c ourt's denial of Baze’s petition.

I Ralph Baze lived in Powell County, K ent ucky, in a mountain hollow knownas Li

ttle Har dwick’s Creek, with his wife. Some of

his other relatives lived on another ridge of the
sam e mo untain. His cabin was at the end of grave l road, heavily wooded on

both sides, approximately 1,000 feet up the mount ain, in

a smal l clea ring th at mad e maneu verin g a vehicle very diffic

ult. By January

1992, the time of the shooting s, Baze was a twice-convicted felon and was wantedNo. 03-5112 Baze v. Parker 3

inOhio for f

elonious a ssault

of a police office

r, jumping

bail, receiving stolen property, and flagrant non-support.

OnJanuary

15, 1992, a

uthoritie s from the

Luca s County Sheriff’s Office

in Toledo, Ohio notif

ied the Pow ell County authorities that they

wished to

extr adite Baze on the felony counts. At that time, Baze was in Ohio, and his wife, Becky Baze, informed

the polic e that she

did not know where he was when they came

to a rrest her husband in mid-January. She thenp honed Ba ze to warn him that the police were looking for him. Baze

left Ohio

for Mic higan , where

he boug ht a SKS assault rifle and ammunition, whichhe ultimately used to kill the two police officers.

Baze returned to his brothe

r-in-la w’s house in nearby B ath Co un ty, Kentuck

y, on January

28 and de cided to move to Florida. He retur

ned to his cabin on January 30with his wife, and hi s sib li ng s- in -l aw , W es le y an d S op hi e M cC ar ty, intending to hold a yard sale

to lighte n their loa

d and then

to leave for Florida

that evening. Deputy Sheriff B riscoe heard that Baze was back in

town and proceed

ed to Ba ze’s cab in to arrest him. When Briscoe arrived, Baze was inside; however, he coul d hear B riscoe a

nnounce his intenti on to Bec

ky t o arrest her husband. While Briscoe ret urned t o his cruiser, Baze left the cabin thro ugh a trapdoor in the bedroom floor, retrieved his SKS assault rifle from behind the cabin, and then walked around the cabin t

o informBriscoe that he would not allow hi ms el f t o b e a rr es te d. We sl ey Mc Carty interve ned to avoid a confrontation, during which Briscoe put his hand on
or near his holster. Becky

grabbed Briscoe’s a

rm, and B aze u sed the opportunity to leave the immediate a rea. Brisco e thenleft in his

cruiser to recr uit a ddi tional officers to effect the arr est.

Baze used t he int erim t o ga th er his pe rsonal be longing s, and 98 rounds of ammunition, and went uphill into the woods. He later told the Louisville Courier-J

ournal that he circled around to

hide behind a

stump behind the spot where the police would have to leave thei r car s. Deputy Br iscoe 4 Baze v. Parker No. 03-5112

arrived back first, follow ed by

Sheriff Bennet t. Both got out of their cruisers with their guns out and they came together on the rear driver’s side of Benne tt’s cruiser. Baze’s wife Becky
was yelling a

t them from the porch of the cabin, so that when they turned to eng age her, they had their ba cks to the woods where Baze was hiding. All agree that at that moment

gunfire began.

Baze testified that

he moved

out from b ehind a la

rge stu mp andbru sh pile, unarmed, intending to surrender, but that Briscoe shot him in the leg with a pistol

. Wesley and Sophie McCarty supported

Ba ze’s v ersi on by

testi fy ing t hat B aze stoodup withouta gun. In contr ast, Baze’s son-in-law, Greg Profitt, who was also at the house, testified that Baze sho t first, but he admitted that he could not distin guish between rifleand pistol fire. Becky Baze also testified that Baze shot first, causing

Bennet tto turn his head back to his right to see where the gun fire wa s comin g f rom. The policemen who
were driving up the road

to lend support testified that the first 6-10 shots they hear

d were rifle fire.

Briscoe and Bennett then turned to face the woods and took
cover behind the

police cruiser on the driv er’s side, with Briscoe shooting over the hood an d B ennett over the trunk. For reasons that are u nclear, Bennett moved around the re ar of the cruiser and opened the back passenger door as if to get into the back

seat, in fact

crossing directly

into Baze’s line of fire. Thereupon, Baze shot him three times in the back. Baze thenstar ted to w alk down the hill towards Briscoe, who continued to shoot at Baze over the hood of the police cruiser
un til he ran ou

t of ammuni

tion, and B aze was to o close to give him time torel oad. Br iscoe the n turned t o attempt t

o esca pe and, after he had gone a bout ten feet, Baze shot hi m twice in the back. W esley McCar ty described B riscoe as “staggering

away ” befor e he fel l o n h is face. Baze then approached

the fallen officer and, alleg edl y thinking that he might be rea ching fo r his gun, shot Briscoe in the head at point-blank range.No. 03-5112 Baze v. Parker 5

Baze then picked

up the weapons and ammunition and fled
on foot to adjoining E still County. He surrendere d without incident at 8 p.m. that evening at the home of theformer E still County Sheriff, where he received h is Miranda warning s. Uponov er he ar in g a qu er y over th e radio as to whether the arresting officer had the correct suspec t, Baze responded: “You tell them that you

go t the right man. I’m the one tha t killed them son-of-a-bitches.”

Baze was tried inRowan County, convicted, and se ntenced to death in February

1994 for shooting the officer s. Th e Kentucky Supreme Court affirmed the sentence on d ire ct appeal in November

1 997. Baze v. Co mmonweat h , 965 S.W.2d 817 (Ky. 1997) (

Baze I ). The Un ited State s Supreme Courtdenied certiorariin April 1998. Baze fil ed a motion to vacate his sentence under

Kentucky’s post-c onviction review procedure, as se rting, among other things, ineffe ctive assis tance of counsel due to irregularities in the use o f hi s peremp tory

challenges. The state trial court denied the motion to vacate without

conducting an evidentiary hearin g, a decision that the Kentucky Supreme Court

affirme d in April 2 000. Baze v. Co mmonweat h , 23 S.W.3d 619 (Ky. 2000 ) ( Baze II ). Certiorari was again denied, in F ebruary 2001.

Baze then file d a petition for a w rit of habeas corpus in the United States Dis trict Co u rt for the Eastern District of Kentucky in April 2001. The district court de nied a mo tion for an evidentiary

hearing on September 23, 2002, and denied th e h ab ea s p et it io n f

ou r d ays later. The district court denied
a mot ion to alter or amend the judgment on December 23, 2002 but “in

an abundance of caution” issued a certificate of appeala bility on all of the issues that Baze raised. Baze then filed an appe al with this

court as serting

twelve po ints of

error. Most salient for this opinion are his assertions of ineffective assistance of counsel and improper limitations on his ability to exercise his peremptory challenges. Healso alleges denial of due process because of claims of: 1) trial cour t interference with presentation of a defense; 2) refusa l to strike six jurors for cause; 3 ) imprope

r jury admonition , instr

uctions , and 6 Baze v. Parker No. 03-5112

verdict form; 4) improper introduction of character evidenc e and unrelated out-of- state charges; 5) refusal to introduce Baze’s federal firearms sentence; a nd 6) cumulative effect

of
errors.
II

When reviewing a denial of habea s corpus relief, this court reviews the district court’s legal c onclusion s de novo and its factual findings under a “clearly erroneous” standard. Skaggs

v. Parker , 235 F.3 d 261, 266 (6th Cir . 2000). The AntiTerror ism and Effe ctive De ath Penal ty Act of 1996 (AEDPA) governs the revi ew of the state co urt deci si on s involved

in this caseand ma

ndates additional deference to state court procee dings. Herbert v

. Billy
, 160 F.3d 1131, 1134 (6th Cir. 1998).

In AE DPA, Cong

ress pro vided tha

t:

Anapplication for a

writ of habeas corpus on

behalf of a person in cus to dy pursuant

to the judg

ment of a State court shallnot be granted with respect to any claim that
was adjudicated on

the merit s in S tate c ourt p roceed ings unless the adjudication of the claim-- (1) resulted

in a deci s ion that was contrary to, or an involved an unrea sonable a

pplication of, cle arly established

Feder al law, a s determi

ned by the Supre

me Court of the United States; or (2) resulte d in a decision that was based on an
unreasonabledetermination of the facts in light of the evidence presented in the State court proce eding. 28 U.S.C. § 2254(d).

A state court

dec ision is “contrary to” Supre me Court precedent “if the state court arrives at a concl usion opposite to that reached by

[the] Court on a question of law,” or “if the st ate court confronts facts that are materially indi stinguishabl eNo. 03-5112 Baze v. Parker 7

from a relevant Supreme Court precedent and arrive s at a result opposite to” the Court’s decision. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision involves an “unrea sonable

ap pl ic at io n” of

cl ea rl y es tablished

Supreme Cour tprecedent when it correctly identifies the govern in g legal standard but applies that standard in a n objecti

vely unreasonable, as opposed to merely inc orrect, manner. Id. at 409- 11. F urthermore, state finding s of fac t are pr

esumed to be correct unless the defendant can rebut the presumption by clear and convincing evidence. 28 U .S .C. § 2254(e)(1). Fi na ll y, review is conducted in light of the law as it existed at the time of the final state court decision, Teague v. Lane , 489 U.S. 288 (1989), unless an intervening constitutional decision
announces a “watershed” rule of cri minal law

with implications for the fundamental fairne ss of the trial proceeding. Caspari v. Bohlen , 510 U.S. 383, 396 (1994).

Most of Ba ze’s habe as claims are bas ed on cha

llenge s to interpretations of state l aw and th erefor e this cou rt may only grant relief i f his Four

teenth Amendment D

ue Proce ss right s are implicated, an extremely hig h standard that Baze cannot meet. Lewis v. J

effers , 497 U.S. 764, 780 (1990) (stating that federal habe as corpus r

elief do es not lie f

or errors of stat

e law). Therefore, we will consider Ba ze’s clear constitutional claim – ineffective assistance of counsel – first, and then address the claims based on state law. Ineffective Assistance of Counsel

Baze argues on

appeal that he was denied effective assistance of counse l when his l awy ers negli gently omitted the name of a corrections officer fromthe list

of peremptory strikes, which resulted in the officer sitting on the jury

. The events that resulted in Ms. Sharon Perkins, a
correc tions officer, sitting on Baze’s jury are somewhat convoluted. Ms. Perkins approached the judge with another corrections office

r to bring to

his attent ion their potentia l bias. Inresponse

to the judg e’s ques tions, Ms. Pe rkins initi ally

said 8 Baze v. Parker No. 03-5112

that her job would affect

her abil ity t

o be impartial, but then, upon further

probing by the

judge, changed her mind, stating that s he could l isten to te stimony and be fa

ir. Durin g th e subsequent

individua l voir dire , Ms. Perkins stated that she had be en a c or re ct io ns of

fi ce r f or si x ye a rs but that her job would not affect her judgment in the case. She also did not think she would

feel pr essure f rom her prison col league s to render a partic ular ver dict.

The def ense moved tha

t she be st

ruck for cause, b oth because of her j ob kno wledge abou t parole and sentencing

r ul es, and bec ause she

might be

sway ed by the remo te possibility

that she would meet

Baze in prison, sho

uld he be convicted but not sentenced to death. The court denied the motion, after q

uesti onin g Ms. Perkins to make sure that she was not intimidated by the theoretica l possibility of

meeting Baze at somelater date. Nothing in the record suggests that this court sho

uld not d efer t o the trial court’s determination that Ms. Perkins’s responses were credible and that she c ould be impartia

l. 28 U.S.C. § 2254(e )(1); see Patton v. You nt , 467 U.S. 1025, 1038 (1984).

After the voir dire , the cour

t instruct ed couns el t o submit their lists of pe

remptory strikes by 8 :4 5 the n ext m ornin g. Defens e counsel c onferr ed that n i ght and eliminated nine potential jurors, Baze’s statutory limit, inc l uding Ms. Perkins. Mr. Ri le y, th e lead counsel, described to the judge wha t happened then:

We p ick ed the nine, put it on a piece of paper, and, left the piece of

paper with the othe

r two indiv

id ua ls on the defense team, wit

h th e instr

uctions to write down the strikes. I didn ’t even l ook at the m. They were la te gettinghere this mo rning. I g rabbed the piece of paper fromthem, copied it
, gave it – and, about the same time, they noticed there was eight, we noticed there was eight. We h ad decided, as a team, not to ask for the ninth
, because it was our mistake, and we screwed up. At that time, you r paral egal a

nd the cle

rk came out, and, saidNo. 03-5112 Baze v. Parker 9

1 Under local court procedure, fourteen jurors hear all of the evidence

an d then two are chosen by lott ery as alt ernates, af ter the cl osing argumen ts, and do no t p arti cipate in t he deli berati ons. Theref ore, excusing extra jurors by l ottery is a well-es tablished practi ce in Kentucky state co urts. See also Ky. R . Crim . P. 9.3 6(2 ). there was a ninth one . . . . So, we gav e them the ninth
name. W e will live by any ruling of the Court. I don’t expect them to believe that it was an unintentional error, but I t ell y ou, it was a

n unintent

ional er ror, on ou r part.
Both the judge andthe district attorney ac cepted the contentionthat the error was inadvertent, but the prosecution immediate ly

objected to amending the strike list to include Ms. Pe rkins. The judge initially de cided to resolve t h e question by eliminating the fina l juror b y lo tt er y. 1 At that pointin the proceedings, another potential juror, Will ie Wagoner, requested to be excused because his wife opposed the de at h p en al ty, alth ough he did not. He feared, howeve r, that his participation in the trial would “cause conflict . . . in my home.” The judge decided that he should be excused and proceeded

“as if he [Wagoner] would be the juror that was struck.” In essence, ther efore, the judge exerci sed Ba ze’s final peremptory strike . Baze’s lawy er responded: “We are notcraz y a bout giving up any of the jurors that we didn’t strike, but, we will live with whatever the .

. . [court decides].” The prosecution responded th at “ [I] will abide by the Court’s r

uling, bu t I wil l object to

it.” As a result, Ms. Perkins sat on the jury and ultimately voted with her fellow jurors bo th to find Ba

ze guilty and to impo se the de ath pe na lt y.
Intwo paragra

phs, the Ke ntucky Supreme Court consider ed
a n d rejected Baze’s ineffective assistance of counsel argument related to the voir dire desc ribed above, on the grounds that the c laim, litig ated on it s merits in Baze I , could notbe resubmitted

under the guise of ineffective assistance of counsel

. B aze II

, 23 S .W.3 d at 62 4 (cit ing Sanborn v. Com monwealth
, 975 S.W.2d 905 (1998), cert. denied, 526 10 Baze v. Parker No. 03-5112

U.S. 10 25 (1999)) . The Ken tucky Supreme C ourt also

held that the decision not

to use the

perempt ory challen ge ag ainst Ms. Perkin s amounte d to “trial st rateg y.” It did not refe r to the s pecific circumstances of this case in its decision, characterizing

the appellant’s argument as: “his trial counsel
was const itut ional ly defici ent in negl i gently failing to exercise a ninth pe

remptory challen ge ava ilableto t he defense.” Baze II

, 23 S.W.3d at 62 3. The co urt then s imply analyzed the claim under t he law governing pere mptory challen ges, ra ther tha n ineffe ctive as sistance

of counse l.

Alth ough the point was not argued in either brief, this court must first consider if we may

review Baze’s claim, given that it is proce durally

barred under Kentucky

law, as set down

in Sanborn

. Neverthele ss, the Kentucky Supre me Court addressed, albeit in summary fashion , Baze’ s claim on the merits. Baze II

, 23 S .W.3d at 624. If a state court doe s not expressly rely on a pr

ocedural deficiency , thena federal court may conduct habeas review. Caldwell v. Mississippi
, 472 U.S. 320, 327 (1985 ); Bowling v. Parker , 344 F.3d 487, 499 (6th Cir. 2003) (proceeding to consideration of the me rits of petitioner’s claims because the Kentucky Supreme Court reviewed the ineffective assistance of counsel claims on the merits, in spite of a procedural bar to review, and the ref o re the relianc e on proc edural d efau lt was not “unambiguous”). Subsequent

discussio n of the merit s did not al way s cast a doubton the procedural bar, however. Simpson v. Jones , 238 F.3d 399, 407- 09 (6th Cir . 2000); C liff ord v. Chandler , 333 F.3d 724, 728-29 (6th Cir. 2003), overruled in part on other grounds by Wiggi

ns v. Smith , 123 S.Ct. 2527 (2003). Clifford held that w hen a state court relies on an independent procedural ground

t o deny relief, a discuss ion of the merits will not supersede the procedural bar to habea s relief.

Alth ough it could be

argue d that the Ken tucky Supreme Courtrelied

on the pro cedura

l bar to dismiss Baze’s claim of ineff ect ive assistance of counsel, the district court held that the claim was not procedurally defaulted and considered it on the merits. The Commonwe alth of Kentu cky did not ra ise theNo. 03-5112 Baze v. Parker 11

question of procedural default in its response brief to Ba ze’s appeal, but rathe

r opposed the claim on the mer

its. The state may waive a defense by not asserting it. Scott v. Collins , 286 F.3d 923, 927-28 (6th Cir. 2002). Therefore, we also consider Baze’s i neffective assis tance c laim on the merits.

AEDPA requires that a court

considering a habeas petition limit its analysis to the law as it was “clearly established” under Supreme Court precedent at the time of the state court decision. 28 U.S.C. § 2254(d)(1). At the time of Baze II

, the Strickland

two-par t test for determin in g ineffective assi stance of counsel was well-known, Strickland v. Washington , 466 U.S. 668 ( 1984) , and go verned t he analy sis of the c laim. Miller v. Franc is , 269 F.3d 609, 615 ( 6th Ci r. 20 01). We are unsure whether the Kent uc ky S upreme Court applied the Strickland test in its d is cuss ion of Baze’s ineffective assistance of counsel claim. Baze II , 23 S.W.3d at 62 4. We need not decide whether AEDPA def erential review should be applied to the stat

e court’ s decisi on inthis respe ct beca use even if we we re to re view the c laim de novo , Ba ze h as not established

t hat he was prejudiced by his counsel’s mishandlin

g of the perempt ory strike lis t.
Under Strickland
, courts a re requ ired to determine whether 1) the perf

ormance of th e attorney fe ll below an objective standard of reasonableness; and 2) the deficient performance prejudiced

the defense. Strickland, 466 U.S. at 688, 691-92. A clerica l error s uch as on e at issue

in this cas e does not

give rise to automatic relief. Yarborough v . Gentry , 124 S. Ct. 1, 6 (2003). Rather, the Sixth

Amendmen

t guara ntees re asonable competence, not perfect litigation. Ibid. (citing cases); McQueen v. Scr oggy , 99 F.3d 1302, 1315 (6th Cir. 1996) (stating that an a

ttorney “merely losin g, being wrong, or miscalculating is not enough to free every pe rs on convicted of a crime”).

We do not need to address the question of competence, ho wever: “[i]f it is ea sier to dis pose of a n ineffe ctivene ss c laimon t he ground of lack of sufficient pre judice . . . that 12 Baze v. Parker No. 03-5112

course should be followed.” Strickland , 466 U.S. at 697. Alth ough the performance o f Baze’s c ounsel ar guably fell below reasonable competence, Ba ze cannot showthat he was prej udi ced

by these def

iciencies. Nothing in the record sugge sts “a reasonable probability that, but for co unsel’s unprofessional errors, the result of the proceeding would have b een different.” Strickland , 466 U.S. at 694. E ven with a jury not entirely in line

with Baze’s preferences, the tria l was notunreliable or fundamentally unfair. Lockhart

v. Fretwe ll
, 506 U.S. 364, 372 (1993).

Of the four teen veniremen selected to hear the e vidence during trial, elev e n, including Ms. Perkins, answered the questions about att

itud es toward the death penalty without sig nifi cant

elabora tion, stati ng that t hey could impo se it if warranted, as the Supreme Court requ ired in Wainwright v. Witt, 469 U.S. 412, 424 (1985). One answ ered tha t she would “consider it less,” but reaffirmed that she would decide on the evid ence. The Common wealth un success fully

moved to strike her for cause on the grounds that she would not consider the death penalty , and the record shows that she was removed from a previous death penalty case jury through a peremptory

strike. A nother ju ror state d that he would

start by thinking about the death penalty , but would consider t he range of penalties. The de f ense unsu ccessf ully objecte d to him on the grounds of insuff

icient fo llow-up to

his responses. Fi na ll y, Baze’s counsel interpreted a third juror’s comme

nt in general voir dire to mean th at she wo

uld only reject t he death penalty if the crime were a crime of passion , whi ch in Kentucky is a non-d

eath penalty

offense. The defense did not move to have her removed for cause.

Onbalance, therefore, the record reveals that eleven of the jurors we re ne ut ra l o n t he de at h p en al ty ( able to condemn a guilty defendant to death but not impose t he death pe

nalty automatically); two may h ave leaned slightly

towards the death penalty as

the most proper sanction for murder, and one may have leaned in the other direction. Given that make-up, no plausible argument for prejudice ca n be made.No. 03-5112 Baze v. Parker 13

Baze argue s that the t

rial judg e prejud

iced hiscasewhen he excused Juro r Wago ner, who, after being qualified, approached

the judg e just b efore the pane l was swor n in to state th at si tt in g o n t he ju ry w ould cau se diffic ulties in hi s m a rriage. Baze theorizes that Wagoner would have been disinclined

to impose the death p enalty in defer ence to h is wife’s moral co nvicti ons a gainst it. This assumption presupposes that Wagoner, to placate his wi fe, wou ld have violated his oath as a juror to base his decision solely on the evidence presented in court. Had he been willing to bend the rules, however , he would

not have a sked to be excused since he could have avoided marital st rife simp ly

by f ollowing his wife’s wishes; his scruples indicate that he took the p rocess se ri ou sl y, and therefo re Baze’s t heory that Wag oner wou

ld have v oted a gainst the de ath pe nalty is not co nvin cing. Wagoner seemed hes itant about the death penalty in the individual voir dire , stating th a t it was appropriate under “certa incircumstances.” Ir onically, the defe nse wanted the judge to questio n Wagone r furthe r befor e finding him qualified because of the at torney ’s experie nce that when a potential juror sa

ys he wou ld impose the death p enalty “in certai n circum stanc es,” h e means “in th is cas e.” The judge declined to do so, finding Wagoner qualified based o n h is responses in the individual voi r di re. Nothing in the record even hints that Wagoner would havevoted against the death penalty or that the

outc ome of t he trial would have been different h a d he remained. Even had Ms. Perkins been included on the o riginal strike list, it seems clear that the judge would have excused Wagoner as well. Therefore, Baze would not have had

the benefit of his sympathy , if any, in any event. Furthermore, Baze did

not ha ve a rig

ht to have

a specif ic juror decide his ca se, only that all jurors be qua lified. McQueen , 99 F.3d at 1328 (s tati ng t hat “onc e the jur y is qualified, any combination of twelve of the fourteen jurors is
as valid as a

ny o ther”) . Had the

ju dge agr eed to allow the defense to exercis e belate dly

its last strik

e to remo ve Perkin s, 14 Baze v. Parker No. 03-5112

and then excused Wagoner, the record does not re veal who the next juror would have been. The judge suspended individual voir dire after 29 jurors were qualified. Four additional jurors had

made it to the se co nd ju ry p oo l o f t hi rt y, butthe record only

contains their names. As a precaution, the judge asked them to return the morning that the jury was seated in case one or mor

e jurors h ad s econd tho

ughts overnig ht, but o nce W a goner had been excused and Perkins seated, eveningout th e numbers, these four extra potential jurors were excused withou t a ny inquiry

into their qualifications to sit on the jury. Therefore, one is left

with pure speculation on whether the outcome of the trial or the penalty pha se could have been any differe nt, an insufficient basis for a successful claim of prejudice. McQueen , 99 F.3d a t 1321 (sta

ting th at a defendant cannot su ccessfully c laim constitutional error simply because he might

have been better off with a different jur y). Although the procedure for removing Wagoner fro m the jury was somew

hat improv

ised, it wa s con stitutiona l. United States v. Mosely 810 F.2d 93, 96 (6th Cir. 1987) (citing cases for t

he rule that “the manner in which the perempt o ry cha llenges are exercised is a matter of loca l custom and trad

itionally has been left to the sound discretion of the distri ct court

”). Whate

ver err ors Baze ’s lawyers committed, they

did not prejudice his defense, and therefore his claim of ineffective assistance of counsel must fail.

III
Federalcourts a

re hig hly ci rcumscr

ibed in the ir ability

to second- guessstate supreme court rulin gs on state law in order to grant habeas relief. Estelle v. McGuire , 502 U.S. 62, 67-68 (1991). The Sup reme Court has made clear that “fede ral habeas corpus reli ef does not lie for errors of state law.” Lewis , 497 U.S. at 780. In conducting habe as review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States. 28 U. S. C. § 2241(c) ; Rose v. Hodges , 423 U.S. 19, 22No. 03-5112 Baze v. Parker 15

( 1975) (per curiam)). Habeas re lief may be g ranted when a state court unr

easonab ly applies Federal

law, or a state court is incorrect to such

a degree that it implicates thedefendant’s right to a fair trial because an

unreasonable determination of the facts tainted the final outcome. See Williams
, 529 U.S. at 412-13.

Baze argues that a Kentucky criminal rule requiring simultan eous exerci se of per emptory challen ges de prived hi m of his opportun it y t o voluntar ily a nd intellig ently

exercise those challenges. Baze has noconstitutional right per se to a set number of perempt ory

strikes. Ross v. Oklahoma , 487 U.S. 81, 89 (1988) (“peremptory challenges are

a creature of statute and are no t require d by

the Constit

ution.”) . He only has a right to r eceive “t

hat which state law provides.” Ibid. Under the Kentucky Rules of Criminal Proce du re, “[p]eremptory

challenges shall be exercis ed simulta neously by striking names from the list and returning it to the tria l judge.” RCr 9.36(2). No juror can be challenged after

being
ac cepted “unless the court for good cause pe rmits it.” R C r 9.36(3). In t hi s c as e, th e j ud ge wa rn ed th e a tt or ne ys on t wo occasions that the li st

of pere mptory strikes w ould

be due at
a cert ai n time and that the list could not be amended once submitted. Baze ha s not asse rted tha t the rele vant rules are unconstitutional in light

of Swain v. Alabama , 380 U.S. 202 (1965), the case

upon which he reli es. Bec ause this is a claim stemming from the applica tion of sta te proce dural ru

les, it is beyond our purview on habeas review. McGuire , 502 U.S. at 67-68. Impermi ssible Int erferen ce with Rig

ht to Prese

nt a Defen

se
Baze argue s that the t

ria l cour t interfe

red with h

is right t o puton a defens e and the refore denied hi

m his due pr

ocess rights. Kentucky

law allows a defense to murder if the killer acts “under t

he influe nce of a n extreme emotional disturbance [EED] for whic

h there i s a reas onable

explanation or

excuse.” KRS § 507. 020( 1)(a

). Tomount

an EE D def

ense , Baz e wanted to introdu

ce evide nce that h e was engaged in a feud 16 Baze v. Parker No. 03-5112

with his wife’s family. Acc ording to Baze, his relatives had called in false reports to the police to harass him, and the feud h ad escalated to the point that he felt his life was in d anger

. The feud fe d into his un derly ing par anoia , r esulting

in his b e lief that the officers’ attempted arrest on an outstanding Ohio warran

t was jus t another

dirty trick set up by his relatives, and he therefore had to def end himself.

The trial judge allowed some evide nce of t he feud to be introduced, but he de termi ned that B aze could not base h

is defense on the inc idents wit

h his wife’s family be cause the tw o office

rs were not directly i

nvolved in

the famil

y altercation, and Baze did not have a contenti ous rela

tionship with either o f the vic tims. The Kentucky Supreme Court

held that the tri al judge ruled correctly that the feud was not relevant to the killi

ngs, an d that he had not abu sed his discretionby limit ing the ev idence of the intra-familial conflict. Baze I

, 965 S.W.2d at 821.

A fair opp ortunity

to prese nt a defe nse is a con stitutional right. Crane v. Kentucky
, 47 6 U.S. 683, 690 (1986) (citing cases). Presenting

relevant evidenc e is integ

ral to tha t right. Taylor v

. Illinois , 484 U.S. 400, 408-09 (1988) (stating that “[t]he need to develop all releva nt f acts in the adversary system is both fun

damenta l and compre hen si ve” ). In parti cular, few rights are more fundame ntal than that of an accused to present witnesses in his own defense. Chambers v. Mississippi , 410 U.S. 284, 302 (1973) (citations omitted). However, this righ

t is not a bsol ute. The

defenda nt “must comply with established rules of procedure and evidence designed to assure

both fair

ness and r

eliability in

the ascertainment

of guilt and in nocence. ” Ibid. States have broad authority to promulga

te rules that exclude evidence so long as they ar

e not “arbitra

ry” or “disproportionate to the purposes t he y a re designed to serve.” United States v. Scheffer
, 523 U.S. 303, 308 (1998) (citing Rock v. Arkansas
, 483 U.S. 44, 56 (1987) (in ternal citations omitted)). Ac co rd in gl y, the Constit

ution le ave s judges “wide latitude”No. 03-5112 Baze v. Parker 17

to excl ude evidence that is only “ marginally

relevant.” Crane , 476 U.S. at 689.

Exclusion of

ev id en ce on ly rai ses constitutional concerns if it has “infringed upo n a we ighty intere st of the accused.” Scheff er , 528 U.S. at 308 (citations omitted). Only if “an evidentiary

ruling i s so egreg

ious that it

results in a denial of fundamental fairne ss [does] it . . . violate due process and thus warrant habeas relief.” Bugh v. Mitch ell , 329 F.3d 496, 512 (6th Cir. 2003), cert. denied sub nom. Bugh v. Bradshaw , 124 S. Ct. 345 (2003) (stating that “[g]enerally , stat e-c ourt evidentiary

ruli ngs c annot ris e to the le vel of due

process violations unless the

y ‘ offend[ ] some princ iple of justice so rooted in the traditions and

conscience of our people as to be ranked as fundamental.’”) (internal citations omitted)); Estelle
, 502 U.S. at 67 (rejecting the Ninth Circuit’s reliance on its own determination that evidence had been improper ly admitted to justify habeas re lief because “[s]uch an inquiry

. . . is no part of a federal court's ha beas rev iew of a s t ate conviction”).

Inorder to q

ualif y for an e

xtreme emotional disturbance instruction under Kentucky law, the defendant must produce “somedefinitive, non-speculative evidence” that the onset of the extreme emotional disturbance was caused by a triggering event. Morgan v. Commonwealth, 878 S.W.2d 18, 20 (K y. 1994); see Patterson v. New York, 432 U.S. 197, 210 (1977) (decliningto “adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasona ble doubtevery f

act constituting any and

all affirmative defenses related to the cul

pability of a n accused”). Evidence of mere anger or hurt is not sufficient. Talbott v. Commonwealth, 968 S.W.2d 76, 85 (Ky. 1998). S ee San born v. Com monwealth
, 892 S.W.2d 542, 551 (Ky. 1 994) (holding that it was not prejudicial error to refuse to allow thedefense psy chological expertto testify about a “triggering event” for w h ich ther e was no independent evidence). 18 Baze v. Parker No. 03-5112

2 See Eric Y. Drogin, To the Brink of I nsanit y: “Ext reme Emoti onal Disturbance” in Kentuck y Law , 26 N . Ky. L. R ev. 99 (19 99)

. Becau se the statute does not define “ex treme emotional disturbance,” Kentucky law has considered a variety of situations concer

ning who is eligible

to prese nt this defense. By the time of

Baze’s t rial, how ever, it was cle ar that the defendant had to poin

t t o a “tr iggerin g event ,” pro mpti ng a reaction that was so “enraged,” “inflamed,” or “disturbed” as to be uncontrollable, before he could p

resent a defense under the th eo ry. 2 McClellan v. Common wealth , 715 S.W.2d 464, 468 (Ky. 1986); Spears v. Commonw ea lth , 30 S.W.3d 152, 155 (2001) . Baze may ha ve been distraught at the on-going feud with his wife’s family, but he cou l d not point to a dramatic, isolated event in that conflict that could have caused him to lose tem

porary control o f sense o f rig

ht and wro ng, thereby qu al if yin g h im fo r m it ig at io n u nd er a E ED th eo ry. Ibid. (stating that a “triggering event” is required). Therefore
, limiting his abilit y to present evide nce on this issue neither undermined

the funda

mental f a irness of Baze’s trial nor deprived him of any “we ighty intere st,” and ac cordingly he cannot establish any g

rounds for habeas relief on this issue.

Extreme Emotional Disturbance Instruction

The sa me analysis undermines B aze’s claim that the tri a l court improperly instructed the jury that it could consider the mitigationdefense of e xtre me emotional disturbance (EED) only i f it found that Officer Briscoe shot first in the final altercation

with Baze. Baze claims that this qualifier rendered the instructi on uncons tit

uti onal, but his argument does not survive scrutiny . “Extreme emotio na l disturba

nce is a temporar ystate of mind so enraged, inflamed, or disturbed as to overcome one's judgment, a nd to cause one to act uncontrollabl y

fro m the impel ling for ce of the extreme emoti onal disturbance rather than from evil or malicious purposes.” Garland

v. Common wealth , 127 S.W.3d 529, 536 n.4 (Ky. 2003 ) (quo ting McClellan
, 715 S.W.2d at 468-69)No. 03-5112 Baze v. Parker 19

(emphas is ad de d) . K en tu ck y l aw req uires a “triggering event,” that is responsible for causing the em otio nal disturbance. S

anfor d v. Commo nwealth , 793 S.W.2d 112, 115 (Ky. 1990). A trig

gering event is dramat

i c, creat ing a temporar yemotional disturbance that ove rwhe lms the defendant’s judgment, ibid

. , su ch as the

paradig matic discovery of a spouse in bed with a lover. See Spears, 30 S.W.3d at 153, 15 5 (obser ving a tr yst betw een wife and another man sufficient for “trigg ering event”).

A triggering eve

ntis not synony

mous with the common law concept of heat of passi on, and may extend over a period of time, but its onse

t must b e “su dden” a nd its eff

ects “uninterrupted.” Springer v. Commo nwea lth , 998 S.W.2d 439, 452 (Ky. 1999) (thr

eat o f child molestation could form basis for mother’s EE D defense, although the statement “festered for a time” in the defendant’s mind). Baze had been inOhio and Michigan in the immediate period preceding the killings, so even if we accept his assertions of fear of the police and aggrava

tion from the family feud, the build-up of thesefactor s, upon whi ch Baze relie s for his EED defense, was not uninterrupted. Garland, 127 S.W.3d at 536.

The dissent argues that “although Br iscoe’s actions did not constitute provocation in the tex tbook sense of the word, Kentucky law imposes no categorical limitation on the types of events that

may trigger EED,” rely

ing on McClellan v. Commonwealth for s uppo rt. (Diss ent, p. 29 ). In a case deci dedafte r McClellan , but before the events of this case, the Kentucky Supreme

court narrowed the circumstances which a d efenda nt can of fer as the basis f

or an EED

defense and reiterated the requirement that “the event which triggers the explosion of violence on the part of the criminal defendant must be sudden and uninterrup ted .” Foster v

. Commonwealth
, 827 S.W.2d 670, 678 (Ky. 1991) (citing McClellan and other case law). The court explicitly stated that extreme emotional disturbance is “not a ment al d isease or illn ess.” Ibid. (citi ng Wellman v. Commonwealth, 694 S.W.2d 696, 697 (Ky . 1985)). The cour t conclud ed: “[I ]t is 20 Baze v. Parker No. 03-5112

wholly insufficient for the accused defenda nt to cl aim th e defense of extreme

emotional disturbance based on a gradua l victimization from his or her environment, unless the additional proof of a triggering event is sufficiently shown.” Ibid

. The dissent describes at length the ef forts o f t he Hi gh le ys to induce the police to harass Baze, to acce pt the defendant’s characterization. Briscoe’s appea ra nce at B aze’s ca

bin therefore cannot be described as sudden ordramatic from Baze’s point of view. Under stand ing that paranoia alone cannot substitute

for a triggering

event, the district c ourt still allowed Baze to pr ese nt an EED defense – if he could show something out of the

ordinar y oc curred

inhis o n-going relations with local law enforcement, namely that Brisc oe shotfirst. Baze argued at trial both that Briscoe shot first and that Baze was put on ed ge b y Briscoe reaching for his gun during his first trip t o the cabin that day. The jury did not be lieve e ither stor

y, b ut Baze r eceive d the opportunity

to argue his version of even

ts, as the Constitution

require s. Juror Challenges

Baze also attacks the sea ting of individual jurors, but he cannot point to any err

or , much less to one of constitutional magnitude.

As described above, a c or re ct io ns of fi ce r s at on Ba ze ’s ju ry. Alth ough empaneling law enforcement or c orrect ions officers is far from optimal, no per se rule exists disqualifying them fromjury service , unless st

ate statute prohibits it, which is not the casein Kent ucky. United States v. Wood , 299 U.S. 123 (1936) (holdin g that the Sixth Amendment does not disqualify governmen

t employees from jury s ervice ); Wood all

v. Commonwealth
, 63 S.W.3d 104, 118 (Ky. 2001) (holding th at emp loyment at the Kentucky State Prison did not disqualify a penalt y- phase jur or beca use “there is no authority for the proposition that mere knowledge about pa r ole eligibil ity is a basis for challenge for cau se” ). In fact, a

t voirNo. 03-5112 Baze v. Parker 21

dire, Baze’s attorney

stated that he had corrections officers on juries all the time. Therefore, this cour t has no ba sis on which to hold that the presence o f a pris on employee on the jury violated Baze’s Sixth Amendment rights.

B aze argues in his brief that another juror, Larry K nipp, should have been excluded

because his brother-in-law was, on occasion, Baze’s jailer at the courthouse. Knipp indic ated in the gener al voir dir e that this relationship might

influenc e his attitude toward Baze, a concern he withdre w in the individual interview. Since being a law en fo rcemen t office r is not a per se di sq ua li fi ca ti on , t he n, lo gi ca ll y, being a relative of one cannot mandate automatic exclusion. He apparently satisfied both the judg e and co

unse l that his relationship would not cloud his ability to judge Ba

ze fairl y, so that

Baze’s r ight to
a fair tri al was no t compromi sed. For the same reasons, the
mere fact that an additional juror, James Padula, Jr., was friends with policemen did not warrant his exclusionfromthe ju ry, as Ba ze asserts. McQueen , 99 F.3d at 1319-20 (being friends with two of the police officers in the case did n o t disqualify a potential juror).

Valerie Utterba ck, another juror , had bee n persona

lly touched by crime: her

sister-in-law had been murdered eleven years before and she had two brothers serving time in prison. Baze asserts that she equated

“justice” with the imposition of the death pe

nalty , becau se, when

asked ab out h er sister-inlaw’s killing, she responded “I wanted to see justice done” and, infact, the perpetrator was se ntenc ed to d eath, altho ugh he died in prison. This reads a grea t deal int o a stock response, especia

lly g iven Utte rback’ s assura

nces t hat she could b e fair i n assessing Baze’s case. The judg e found her explanation credible and

nothing i n the record would prompt this court to second guess that determination.

Baze asserts tha t he was f orced to use two of

his peremptory

challenges to remove t

w o jurors, Diana Lindsey and Noretta Bradt, from the p anel, al though h e cla ims that they should have been excused for cause. The record does not 22 Baze v. Parker No. 03-5112

indicate that the se two j urors we re unqua lified, bu t even if they were, B aze’s contention would be wi thout meri

t. Peremptory

challenges are not

a cons titu tion al righ t, alt hough the Supreme C ourt has held them to consti tute an “essential part of trial by jury .” Lewis v. United States, 146 U.S. 370, 376 (1892). It is not a

constitutional violation, therefore, if a defendant has to us e a p eremptory strike to remove a juror who should have been removed for caus e. United States v. Martinez-Salazar, 528 U.S. 304, 315-17 (2000).

Baze’s contention that juror bia s denied him his right to a fair tri al is witho

ut merit. Imperfect Self De

fense

Baze claims that the trial court’s refusal to give the jury an i nstruction on imperfe ct self-defense violated hi s constitutional rights. Challenging a jury ins t ruction on collateral review i s a

difficult undertaking: only if “the ailing instruction by i

tself so in fecte d the entire trial that the resulting convicti on violate s due proc ess ,” can t his court grant
a writ. Henderson v. Kibbe , 431 U.S. 145, 154 (1977) (quot ing Cupp v. Naughten , 414 U.S. 141, 147 (1973)). Far frominfectin

g the pr ocess, the jury

instructi ons were

correct.

Baze wanted to

argue that Depu

ty B riscoe r

eached for his
owngun during h is first vis it to the cabin, thereby prompting Baze to fear for his life. Baze wa s willing to conce de that th

is fear wa s irrational, but argued to the trial judge that the jury should b e allowe d to consid

er mansla

ughter , the res

ult provided for under the Kentucky

penal statute for a

defendant who intentiona

lly k ills anothe

r in a re ckless o r wanton, but genuinely held, bel ie f t hat he needed to act in self-defense. Shannon v. Common wealth
, 767 S.W.2d 548, 550 (Ky. 1988). The Kentuck

y Sup remeCourt decided that the record did not show that Briscoe had moved his hand toward his weapon on his initial visit, and therefore Baze did not have any reaso n, wantonor not, to fear for his life, m aki ng the trial court’s ruling correct in disallowing the imperfe ct self- defense claim.No. 03-5112 Baze v. Parker 23

Baze I , 965 S.W.2d at 822. T he testimony supports the factu al determination tha t Brisco e did not r

each for his g

u n during his first visit to the cabin on January 30, and the refore Baze has not shown any

improper interpre tatio n of th e facts that would ca st doubt on t

he funda mental fa irness of his trial. Furthermore, as the Ke

ntucky Supreme C ourt c arefu lly explained, the conc ept of imperfect se lf-defe nse does n ot exist under Ke nt uc ky law in the context of an arrest. The use of deadly force, whateve

r the per petrato r’s state

of mind, is not justifiab le when

“[t ]he defe nd an t i s r es is ti ng an ar re st by a peace off ice r.” Ky. R ev. St at. Ann . § 5 03. 060 (1) (19 99) . If the police are using

“more force than

is reasonably ne cessary to effect the arrest” then a suspec t who resists arrest can validly claim he acted in self-defense. Ky . Re v. Stat. Ann. § 503.050 K

entucky Cr ime Commission Comm entary (2003). Inthat sce

nario , h owever, the suspect has a perfec t defense. Therefore, if Briscoe h ad sh ot at Baze first when Baze was unarmed and attempting to surrender, he would b e entitle d to
anacquittal based on justified self-defense. The jury

, in fact
, received an instruction to that effe ct. However, the jury found implicitly

that Baze initiated the gun fire, a

nd so he fa

lls under § 503.060(1), which precl udes anyclaim of selfd efe nse as justifi cation f or resist ing arr est if the office r is using reasonable force. Therefore, this court has no grounds
on whichto grant habeas relief bec ause, far from tainting the trial, the jury instructions were proper. Imprope r Jury Fo rm
The f orm that the jury rec eived when deliberating on Baze’s punishment incorrectly r eflected the Kentucky law of the time: the f

orm state d th at th e minimum punishment was life withou t possibility

of parol e for 25 y

ears as opposed to the correct standard of 20 y ears befo re t he possibility of parole. The form stated correctly that the jury could also opt for a life sentence. Baze claims that the incorrect verdict form given to the jury

violate d h is due process rights. Had the mistake been the opposite, that is that the jurors were told that 24 Baze v. Parker No. 03-5112

their choice was between death and twenty years in pr ison, thenBaze might have a constitutiona l claim. A jury might sentence a defendant

to death if its members thought that the only alternative punishment for a double murder of police officers were a guarantee d twenty y ears in prison. It makes no sense t o argue, however, that the jury would have c hosen
a lesser punishment (20 yea rs) than the r

ejecte d, albeit incorre ct, option ava

ilable to i t (25 y ears), especia

lly s ince it also did not choose the life sentence.

Habeas petitione rs mus t show that a trial error of constitutional dimension “had substantia

l or injuri ous effe ct”
on the jury’s ver

dict. Brecht v. Abrahamson , 507 U.S. 6 19, 638 (1993) (quoting Kotteakos v. United States , 328 U.S. 750, 776 (1946)). In thi s case, the jury chose death over two other options, including one that was stated moreharshly than the actual law provided, demonstrat i ng its determination that death was the a ppropria te penalty. See also Schad v. Arizona
, 501 U.S. 624, 646-47 (1991) (explaining that the jury must be able to consider lesser included offenses to prevent it from being forced into an all-or-no thin g choice between capital murder and inno cenc e, which

would dimin

ish the re liability of a guilt y verdict). The

situation here meets the Schad require ment. Baze’s j ury

could have sentenced him to life, a middle option between 20 (o r 25) years in prison a nd death, butdid not choose to do so. Therefore, the incorrect jury formdid not have an

injurious effect on the jury ’s verdict and habeas relief is not warranted. Admonition on Validity of the Ohio Arrest Warrant

Baze claims that

the trial judge’s admonition regarding the legal irrelevance of Baze’s be lief that he wa s not wante d in Ohio violated his constitution al rights because a defendant has a right to explain why he acted as he did. Baze

was able to testify that he shot the officers because he thought that they had no r ight to arrest him. It defies common sense to assert that anyone who

thinks they are be ing falsely arrested has the right to use deadly for

ce t o thw ar t b ei ng ta ke n i nt o c us to dy.No. 03-5112 Baze v. Parker 25

The trial judge was only

acting responsibly

in clarifying

to the jury that “the law is tha t a person may

be lawfu lly arrested by
a law officer, withouta warrant, upon reasonable information that the acc used stan ds charg ed in the c ourts of a nother st ate

. . . .” In essence, Baze was allowed to explain to the jury that he acted on an in correc

t assumption of the la

w, but it is axiomatic that “ignorance of the law i s no excuse.” Therefore, the trial judge’s admonition did not violate Baze’s due process rights.

Character Evidence

The coroner testified at trialthat neither Briscoe or Bennett
were aggre ssi ve or

“gu ng- ho” p olice

offi cers . Baz e complains that he wa s not allo wed to rebut this assertion by introducing evidence that 1) Dep uty Briscoe had once shot outthe tires of a sus pect in a n effor t to appre

hend him; 2) when appro achin g t he suspec t, he state d “do y

ou want to meet your Maker

?”; and 3) Baze knew about the incident and therefore it

colored his reaction

to Brisc oe’s atte

mpt to arr est him. The Kentucky

Supreme Court ru led that Baze had failed to show that the incid ent was relevant to his claim of self-defense. Baze I

, 965 S.W.2d at 824-25. Nothing in the record suggests that was an unreasona ble conclusion that would implicate

Baze’s d

ue proce ss r igh ts. In fact, the Commonwea

lthexp lai ned that B riscoe s hot out the tires to stop the suspect from fleeing at 100 mph in a stolen car. Appellee Br. at 8 6. In

this scenari o, “do you want to mee t your Ma ke r?” is more an expression of admonition, along the lines of “are y

ou cra zy ?” than a threat, rendering the statement irrelevant t o Ba ze ’s self-defense claim. Given at least two plausible readings of the comment, the Ken tuck y Supreme Co ur t d id no t d en y B aze’s du e process rights by affirming the trial judge’s evidentiar y ruling. 26 Baze v. Parker No. 03-5112

Identification of the Ohio Felony Charges

Baze complains that informing the jury of the nature of the Ohio charges aga

inst him violated his constitutiona l right to
a fair trial . He asserts that presenting the jury evidence of alleged previous violent acts “undoubtedly tipped the balance toward guilt dur ing the jurors’ three day s of deliberation.” Appellant Br. at 8 1. Alt hough perhaps plausible speculation, Baze provides no citation to suppo r t his assertion that revealing the nature of the charges violate d Kentucky’s Rule of Evidence 401. The trial judge admonished the jury that the Ohio charge was not relevant to Baze’ s guilt

in the killing of the two policemen. Nor does Baze offer any way around the fact that a federalcourt conducting habeas r eview ma y no t, as a basic rule, revisit state c our t decisions. Estelle, supra ; Crane, 476 U. S. at 690 (c itin g Chambers v. Mississippi , 410 U.S. 284, 302 (1973)). The Kentucky Supreme Court found the issue to be without merit, Baze I , 965 S.W.2d at 821, and there the matter must rest. Mitigating Evidence: Baze’s Federal Firearms Conviction

Baze attempte d to introduc e eviden ce to the jury during

the sentencingphase that he had received a 20-y ear sentence on
a federa l firear ms charg e, which

would run

consecu tively to
an y prison sentence the jury

would impose. At the time o f sente ncing, however, his firearms conviction was on appeal, and thus the trial jud ge ref

used to inf

orm the jur

y a bout it because his sentence could be overturned. Baze’s theor y is that he could have avoided the death penalty if the jury concluded

that the additional firea rm s convict

ion would
ensure that he wo

uld never get out of prison. However, if the jury’s“insura

nce sent ence” were to be reduced or vacated, the jury wo ul d h av e d et er mi ne d h is mu rd er pe na lt y on the basis of a f al se pr em is e. Th er ef

or e, it wa s n ot en ti re ly c lea r whether there was mitigation or not.

The dissent a

rgues t hat Baze ’s Eight

h Amendme

nt right s were violated

because “the jur y ha d no way

to direc tlyNo. 03-5112 Baze v. Parker 27

sentence him to life in prisonfor the tragic killings of the two
o fficers.” (Dissent, p. 38) The verdict form, however , allowed the jury to sentence

Baze to any numbe

r of year s they chose; t o “ confine

ment in the

penitent iary for life ;” to “confinement

. . . withoutbenefit

of proba tion or pa role until he has serve d a mi nimum of twenty-five y ears” or “death.” W e agree with the district court that, had the jury wi shed t o spare Baze’s life, y

et keep him perm anen tly b ehind bar s, it could have done so by se lecting the “confinement for l ife” option. Had

the jury been ske ptical tha t a life se ntence would stick, it co uld have sentenced Baze to a three- digit term of years for eac h murder under its

discreti on to st ipulate a specific prison sentence. Kentucky juries are guided by

detailed statutory g

uidelines
as to aggravating a

nd mitigating circumstances in deciding the penalty in a ca

pital case. Commonwealth v. Eldred , 973 S.W.2d 43, 46 (1 998) . An independent sentence that might
reassure a jury

that the d efenda nt willspend his natural life in prison is not on the

list of mitigating circumstances that must be considered. KRS § 532.025(2)(b). The basic rules about restrictingredundant and irrelevant evidence a pply in capital sentencinghearings. Skipper v. South Carolina , 476 U.S. 1,4 (1986) (stating

the “we ll-estab lished” r

ule that a d efendant has a right to introduce all relevant mitigating evidence). The jury had a direc t way to keep B aze in prison for life; it was not error t o withhold e

vidence of a pote

ntial, contingen

t, indirect, route to the same result. Fed. R. Evid. 403.

Cumulationof Errors

Baze argues in his brief

that even if the eleven errors he asserts are considered to be harmless, their cumulative ef fect taints the trial to the extent that his due p rocess rights were violated. This anal

ysi s fails, however, because Baze is un

able to pointto any individual

errors in the trial, with the exception of the h armless error related to the jury form. Furthermore, Baze relies on United States v. Parker , 997 F.2d 219 (6th Cir. 1993), for the proposition that errors tha t are har mless in 28 Baze v. Parker No. 03-5112

isolation may require

reversal when taken together

. Under AEDPA, however, a court may only grant habeas relief base d
on misapplic ation of Su

preme Court law. Baileyv. Mitch ell
, 271 F.3d 652, 655 (6th Cir. 2001). Becaus e Baze cannot
e sta blish any err ors to cumulate and because his theory that
errors can be considered in the aggregate depends on nonSupreme Court precedent, this claim is also without merit.

IV

For the foregoing

reasons, we AFFI

RM the district court’s denial of Baze’s p etition for a writ o f habea s corpus.No. 03-5112 Baze v. Parker 29

____________________________________________ CONCURRING IN PART, DISSENTING IN P ART

____________________________________________ R. GUY COLE, JR., Circuit Judge, concurring in part and dissenting in part. B ecause Baze ad mitted tha

t he sh ot and killed Officers Bennett and Brisc oe, his constituti onal rig ht to present a de fen se at trial pertaining to his mental state and mitigating evidence at sentencing wer e of the utmos t impo rtance

. Although I ag ree with many of

the majority’s conclusi ons, I re spectfu lly d iss en t as to my

colleag ues’ conclusions on the EED defense at trial and the presentation of mit igati ng evid ence at sente ncing.

A. Due Proc ess Right t

o Presen t a Defens e
At trial, Baze asserted that he believed Briscoe showed up at his residence to arrest him falsely and at the beh est of the Highle ys, who Baze claimed

had repe atedly

harasse d him

and previous ly

used the p oli ce do so . In rejecting Briscoe’s arrival as a poss ible trigg er of EED, the maj ority asserts—without

authority

—that “[a] t

rigge ring ev ent is shocking and dramatic, such as the paradigmatic discovery of
a spouse in bed with a lover.” This assertion, however, misapprehends Kentuck

y la w at th e time of t

he shootin

gs. Alt hough a discrete event must trigger the EED, that

even t need not be as shocking

and dramatic as the majorit y sugge sts, it may overcome the defe nda nt grad

ually , and it must be mea sured fr

om the perspective

of the de fendant

. First
, althoug

h Brisco e’s act

ions did not

constitute provocation

in the textbo ok sense

of the word, Kentucky law imposes no categorical limitation on the types of eve

nts that may tri gger EED. As held by the Kentucky Supre

me Court long before the shootings in our case, “ a reaso nable explanation of extreme emotional disturbance is not limited to specific acts of provocation by the victim

but may relate to anycircumstance t hat co uld reas onably cause a n extreme 30 Baze v. Parker No. 03-5112

emotion al disturbance.” McClella n v. Commo nwealth , 715 S .W.2 d 464, 468 (Ky. 1986) (e

mphasis added). Indeed, the EED defense “is not restricted to circumstances which

would constitute provoca tion in the ordinary me aning of the term . . . it is possible for any

event, or even wor ds, to aro use extre me mental or emotional disturbance.” Gal l v. Commonwea lth
, 6 07 S.W.2d 97, 108 - 09 (Ky. 1980), overruled o n othe r grounds
, Payne v. Comm onwe alth , 6 23 S. W. 2d 86 7 ( Ky. 1981). Second, alth ough the

shooting s did not ins tantane ously follow Briscoe’s arriva

l, EED’s “onset may

be more gradual tha n the “flash point” normally a ssociated with sudden hea t of passion.” McClellan , 715 S.W. at 468. So long as nothing interrupted

the triggering eve

nt , Kentucky law

recognizes that the EED remains viable.

Third—and

most import

antly in our case—Kentucky

EED law measures whether the source of the de fendant’s alleged EED “is rea sonable u

nder the circumst ances as he believed them to be .” Mc Clellan
, 715 S.W.2d a t 468 (emphasis added). That we (or

most people, for that matter) would have perceived certain events differently

does not mean that Baze’s defense fails as a matter of law. To th e contra

ry , the def

ense calls upon the ju

rors t o “place themselves in the actor’s position as he believed it to be at the time of th e act.” Gall
, 607 S.W.2d at 108. In other words, the jury must have a chance to view B riscoe’ s arriva

l throug h Baze’ s ey

es.
Evaluated throu gh this time-honored legalframework, the availab ility

of the EED defen se to Ba ze become s appare

nt, and the denia l of it a clear violation of Baze’s constitutional right to prese nt a c omplete defense. The trial judge’s unconstitutional denial of Baze’s EED defe

nse is based upon the: (1) improper restrictions on his right to present evidence ; and (2) erroneous instructions to the jury

. Had he been

allowed t

o presen t the rele vant evid enc e availab le to him, Baze wou ld have il lustrate d to the jur y hi sNo. 03-5112 Baze v. Parker 31

per ception

of the events on the day of the shooting

— a perception

that was critical to understa nding the source o f his claimed EED. Baze asserted that he saw Briscoe ’s arrival as the work of the Highl ey s, who had repeat edly harasse d him

in the months leading up to the shootings, including providing the police false accusations of criminal wrong doing by B aze. But the trial judge limited evidence of thefamily feud to on

ly to a general

affirmation that

it existed. Any time he asked a feud-related

question, defense counsel was required b y the court to instruct the witne ss to answer “[w]ithout g oing into
a ny d etails....” Even when he did allow feud-related evidence—such

as Baze’s motivation for

building a trap-door inhis home—t

he trial j udge a

dmonished

the defe nse to omit any discussion of the spe cific ev ents that underlay the dispute.

No matter how many

defense witnesses were able to utter the words “f

amily fe ud,” the m

ost relev ant and dr

amatic details—t hose involving the Highley s bringingthe polic e into the fray to put Baze in danger of phy sical harm—were nowhere to be found. The jury was prevented fr om h earing evidence—including

th e t es ti mo ny o f

a police officer—that
on a prior o ccasion , the Hig hley s falsely

tol d the police that Baze was driving drunk, had nearly runsomeone off

the road,

w as a rmed and dangerous, and was afugitive with out-ofstate warrants. According to the ex cluded te stimony , this falseinformation from the Highley s led police officers to stop Baze’s car, aim their guns at him, and threaten to s hoot hi m if he mo ved. Furt

her, both B aze and the police office r would have expresse d their be liefs tha t it was the

Highle ys’ allegations that instigated the st op. This te stimony , in
concre te terms, woul d have i llustrated the link Baze perceived between the police and the Highleys, and why he ther efore might have per c ei ve d B ri sc oe as an ag en t o f t he Hi gh le ys who could put Baze’s life in danger . Instead, Baze wa s allowed to testify only in gene ral term s to his susp icion tha t the Highle

ys had provo ked this la

test encoun ter with the police. Yet it is only when placed in the context of this prior showdownwith the police that Baze’s perception of the 32 Baze v. Parker No. 03-5112

events could become credible and its effect on his emotions reasonable.

Baze’s prior experience with the police was relev a nt not only to show the general link in h i s mind between the Hi gh le ys harassment and police action, b ut also because one of the prior fabric ations by

the Hig hley s involved

out-of- state warrants—the initial basis for Baze’s arrest on the day

of the shooting s. Durin g the pr eviou s High le y- instiga ted traf fic stop, the offic e rs had checked for out-of-state wa rrants and had told Baze that the law-enforcement compu te r disclosed
no outstandi

ng cha rges. T his i n formation would ce rtainly have m a de Baze more likely to believe that his impending arrest on outstanding charges was a l a wless act of familial
scor e-set tling rather than a legitimate exercise of police
au th or it y, and thereby

contributed to the inflammation of his passions upon Briscoe’s arrival. To the cont rary, B aze was allowed to testify only

to his general belief that

there were no out-of- state warran

ts agai nst him. Ag ain
, evidenc e that this informationcame from the sam e p olice department now seekingto arrest him would have bolstered the b elievab ility of Baze’s perception

and the reasonableness of the resulting distress.

The relationship in Baze’s mind between the Highley s, the police, the impending ar

rest, an d the thre at of viole

nce also interacted with another important contextual clue kept away f romthe jury: Ba

ze’s growing paranoia. Althoug h a mer e ongoingmental disturbance does not suffice to set forth a de fense of EED, it was well-established by the Kentucky Supreme Court that “an underlying mental disea se ma

y be considered

by a jury in making its determination of whether
a defenda nt’s explan

ation or e xcuse for his allege d ‘extreme emotional disturbance’ is reasonable under the circumstances
as he believed them to be.” McClellan , 71 5 S.W.2d at 468. The trial judg e, howev er, proh ibited the defense ’s psy

chiatric expertfrom testifying

that the ongoing

feud “was just feeding his paranoia. As it continued, [Baze] became more and more paranoi d and more concerned about the safety of himself andNo. 03-5112 Baze v. Parker 33

his f amily .” This context would have fur ther allowed th e jury to assess how Baze might have interpreted the events on the day of the sho oting an

d how thes e events

produc ed a genuine fear for his well-being that prod uced sev ere distr

ess.
The trial judge ’s rat ionale f or the exc lusion of th

is evide nce—that

the feud did not involve the murde r victims—was e xpr essly contradicte d by the Kentucky Supreme Courtwell before Baze’s trial took place. As noted above, in McClellan , 715 S.W.2d a t 468, the c ourt held that “a reasonable explanation of extreme emotional disturbance is notlimited to specific acts of provocation by the victim but may relate to any circumst ance tha t could reasonably

cause an extreme emotional di st urbance .” Baze ’s EED de fense depended on placin g the of ficers’ arrival in the context of the ongoingfamily

feud and his relatives’ prior use of the police to harass h

im. The pr

oper que stion was w

hether t he even ts,
as Baze pe

rceive d them, reasonably

placed him under

severe emotional distress—not whether the victim “asked for it.”

Fi na ll y, the trial judge excluded evidence that Baze might have understo od Brisc oe’s pre sence a t his home

as a threa t to his physical safe

ty. Baze wa s prohibited from testifying about reading a newspa per art icle whic h rep orted tha

t while making an arrest, Brisco e shot out the tires of the arrestee’s car, p ointed his weapon at the suspect, and asked him if he “want[ed] to meet [his ] maker.” Baze’s t

estimony would hav e empha sized the danger that he felt during B riscoe’s attempt to arrest him, and

also would have provided the lens throu gh which he

interpre ted Bris coe’s su

bsequen t acti ons

. The major ity justifies the exclusion of this evidence by dwelling on detail s of Bris c oe’s prior incident that were unlikely to have bee

n known to Baze. It fi

rst pointsout that “the Commonwealth explained thatBriscoe shot out the tires to stop the suspect fro m flee ing at 100 mph in a stolen car.” That may have b een the case, but the majority doe s not explain how B aze wo ul d h av e l ea rn ed of th is . S im il ar ly, the majority interprets “do you want to meet your make r?” as “an 34 Baze v. Parker No. 03-5112

expression of admonition, along the lines of ‘are y oucrazy.’” Again, th at ma y be on e w ay o f understanding such an in te rr og at or y, but it is hardly the only one . The jury
reasona bly could have found that

Baze was less prone than the majority to interpret B riscoe’s question in this manner.

If the jury cre dited the above evide nce, it could have concluded

that when

Briscoe arrive d at his re sidence

to arrest him, Baze believed: (1) that he was being falsely arrested; (2) because Briscoe

was using

his authority as a police

officer to torment

Ba ze at th e H ig hl eys behest; and (3) that the police ge ne ra ll y, and

Briscoe in particular, might turn violent when executing the arrest. A reasonable jury certainly c ould have determined

that Baz e reas onably felt extreme distress whe n confron ted with th ese cir

cumstanc es.
Even if the trial judge had admitted every piece of evidence that Baze proffere d, th e jury

instructi ons themse lves would have cl ea rl y t r ampled on Baze’s constitutional right to present
a complete defense. Following Ba ze’s testimony, the trial judge told the jury that

Baze’s belief in the lawfulness of the attempted arrest was legally

irrelevant. Yet

this instruction misunderstood

the EED defense, which requires the ju ry to
measure the defe

ndant’s e motions as the de fendant himself
reasona bly felt them. Baze’s belief that there were no such charge s w ould contribute to the “circumstances as he believed them to be,” namely

that Bri scoe’s a

rrival a t his resid ence to arrest him was ano the r instance of the police doing the Highley s bidding.

The trial judge instructed the jury that it could find that Baze acted under

EED only

if it found that Briscoe fired the first shot. In so doing, the trial judge prevented the jury

from consideringBaze’s r

eaction —in light of his understandingof the circumstances—to Briscoe’s arrival. The instructi on also kept the jury from conside

ring whether, Baze may have believed that Briscoe had fired or was about to fire

.No. 03-5112 Baze v. Parker 35

Granted, under

the common law “heat of passion” standard, the passage of several minutes betwee n Briscoe’s arrival and Baze’s turnto violence would have exhausted any claims of EED. Bu t because

the Kentu

cky Supreme C ourt expre ssly contemplates that EED may per co late more gradually , a reasona ble jury could hav e conclu

ded th at Briscoe’s arrival—and

all of the co nclusion s that Ba ze drew f rom it, given the circumstances as he understood them—was enough to inflame B aze’s pa ssion, eve n if it did no t produce

a splitsecond re ac ti on . T o u se th e m aj or it y’ s analogy , Briscoe’s arrival may

not ha ve be en analog ous to

Baze catchin g his wife in bed with

a lover, but proba

bly was an al og ou s t o, sa y, Baze observing his wife and another man check into a

motel.

The majority arg

ues thatbecause

Baze had previously

been harassed by t he police at the be

hest of th e Highl ey s, “Briscoe’s appe aran

ce a t Baz e ’s cabin therefore cannot be described as sudden or d ramatic from Baze’s point of view; if anything, it wa s routine and ann oying .” Under this logic, the majority

would consider a husband’s beat

ing his wife for the second time to be merely “routine and annoyin

g” bec ause the victim should be used t o it by no w. Of course, the opposite is true: the firs t be ating, or in this case the second instance of police harassment would reasonably make
someone even more upset than the first instance. The second time, the victim knows that the first incident was not isolated. Inany eve

nt, Briscoe’s arrival woul d have been more disturb ing to Baze than the pr ior incide nt of har assment, because this time his arrest was assured.

Even if Brisc oe’s ar

rival itse lf was not a triggering e vent under Kentu ck y law, an e

ven more sudden a

nd drama tic stimulus awaited Baze. Becky Baze testified that when her husband walked away f romBriscoe, she saw Briscoe putting his hand near his holster. Believing that Briscoe was going to shoother husband, Becky hollered and grabbed Br iscoe’s
arm. Baze simila rly testified that afte r he turned away

from Briscoe, “every

one started hollering , ‘Run!’” Again, given Baze’s view of the circ umstances—including both the prior 36 Baze v. Parker No. 03-5112

tensepolice incident initiated by the Highley s and the article he had read about Briscoe—Ba ze might have perceived h i s wife’s outcry

as a war ning tha t Brisco e was a

bout t o turn violenttowards him, and Baze in fa ct testified that he b elieved t hat Briscoe had tried to shoot him in the back. A
reasona ble jury could have f

ound that a perceived imminent threat of vio lenc e at t

he ha nds of the p olice

—whic h Baz e believed was the product so lely

of th e Highl ey s’ vende

tta agains thim—could reasonably a nd severely

disturb an average person, let alone a paranoid one.

B. Mitigating Evidence

The majority

also errs in rejec

ting Ba ze’s Eig hth Amendment

claim: tha

t h e was depr

ived of hi s right to present mitigating evidence by

the exclusion of evidence about his pending twenty-yea r pris on term on federal weapons charg es. Onthe question of mitigating evidence, the Supreme Court has been resolute: “the senten c er may not refuse to con sider or be p reclud ed from consi derin g any relevant mitigating evi dence .” Skipper v. South Carolina
, 476 U.S. 1, 5, (1986) (emphas is added). This includes evidence “tha t the def

endant w ould not pos e a dang er if spared (but incarcerated).” Id.

The majority contendsthat bec ause this convi ction was still pending on appea

l, “it was not entirely

clear whether there
was mitigation or no t.” But this is precisely the ty pe of inquir y that the Supreme Court has left for the jury , wh ic h could have be en told ab out both the sentenc e and the

appeal. And the possibility of an additional twenty -year sentence makes it less likely that

Baze wou

ld ever r eturn tothe stree

ts, and in any event would make him much older an d presuma

bly less dange rous if h e did. Of course, Baze bore the risk that the jury would conclude

that a not-yet-f

inal sentence was too flimsy a basis upon which to assume Baze’s additional incarceration. But the ju

rors also might ha ve fact ored it int o their calculus, given that an assessment of future dange rousness is in he re nt ly a n uncerta in and pro

babilisticNo. 03-5112 Baze v. Parker 37

enterprise. Cf. Johnson v. Texas , 50 9 U .S. 350, 368 (1993) (upholding instructions to jury to consider whether there was

“ a probability that [the defendant] would commit cr i minal act s of violence that would constitute a continuing thre at t o society” (e

mphasis added)).

Recent cases f rom our sis ter circ

uits are p articula

rly instructive in this regard. In Paxton v . War d
, 199 F.3d

1197, 121 1 (10th Cir. 1999), the

court re viewed the constitu

tionali t y of the state trial court’s

“refus al to admit a court order stating that [the defendant] had been cleared in hi s w if e’ s d ea th by a polygra ph examination.” The trial co urt ha d kept out the results because state law prohibi ted th e admission of polygra ph evidence due to concerns about its reliability. The court held that th e refusal to admit this evidence constituted
a clearly unr

easonable application of the Suprem e Court’s Eighth Amendment jurisprudence, noting that whatever the reliabil ity concerns that the use of a

poly graph test migh t raise in a n ormal criminal proceeding “[t]he Supreme Court has been exceedingly

cautious to ensure that a person found g uilty of a capital offense is given ever y opportunity

to present potentia lly mitigating evidence that

might form the ba sis for
a sentenc e less th a n death.” Id. at 1214 (internal quotations omitted). The Ninth Circuit reached the same decision inan identical case—n otwi thst andin g the state’s concerns about t he polygra ph’ s reliability—noting t

hat “under controlling United States Supreme Court authority, rela xed standards govern the admission of

mitigating evidence during the penalty phase of
a death pe nalty trial.” Rupe v. Wood

, 93 F.3d 14 34, 1439 ( 9th Cir. 1996).

Alth ough the trial court retains some discretion to exclude flagr antly unrelia ble or confusing

evidenc e, this is not a case inwhich this discretion was called for. I n Alley v. Be ll , 307 F.3d 380 (6th Cir . 2002), w e upheld t he exclusi o n from t

he sentencingphase of a videotape o f the defendant answering questions while under hypnosis. Ther e, however, there was evidence in the record that “people c an lie und er hy pnosis, and ... the hypnotic state pr oduces different levels of 38 Baze v. Parker No. 03-5112

consciou sness that can only be unde rstood from a clinical perspective, not from a lay pe rspect iv e.” Unlike Alley —in whichthe evide

nce mi ght a ffirmatively conf use all but the most technic ally

informed —the mi tig ating e

vidence in this
caserequire s no such expertise to consid er . A lay

person is perfectly capable of understanding that the convi ction wou

ld not be final until after the appeal.

That Baze was fac ing an extra twenty y ears in prison was particu larly releva nt becau se the jur

y ha d no way to direc tly sentence him to life in prison for the tr agickillings of the two office rs. If thejury

spared B aze’s lif

e, its next mo st restrictive option was to impose a sentence of twenty -five years to life. F inally , t he trial judge excluded evidence that Baze might have und erstood B riscoe’ s presen

ce at his home
as a threat to his physical sa fety. B aze w as pr ohibited from testifying about the newspaper a

r ticle which reported that while maki n g an arrest, Briscoe shot out the tires of the arrestee’s car, pointed h is weapon at the suspect, and asked him if he “wante[ed] to meet [his] maker.” B a ze’s reading this would have added to the danger th at he felt during Briscoe’s attempt

to arre st him, and also would have provided the lens through which he interpreted Br iscoe’s subsequent actions. The jury’s perc eption of Baze’s future dangerousness—and

the chance that he could be back on the street sooner than it would want—may ve ry we ll have motivated the jury to sentence him to death.

Thesesho ot ings were brutal. But constitutional errors infected both Baze ’s convic

tion and sentence of death. Accordingly , I respectfully dissent.