RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0215p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

ROBERT KEITH WOODALL,

 Petitioner-Appellee/Cross-Appellant,

v.

THOMAS L. SIMPSON, Warden,

 Respondent-Appellant/Cross-Appellee.

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Nos. 09-5352/5406

Appeals from the United States District Court

for the Western District of Kentucky at Paducah.

No. 06-00216—Thomas B. Russell, District Judge.

Argued: November 29, 2011

Decided and Filed: July 12, 2012 

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

_________________

COUNSEL

ARGUED: Susan Roncarti Lenz, OFFICE OF THE KENTUCKY ATTORNEY

GENERAL, Frankfort, Kentucky, for Appellant/Cross-Appellee. Laurence E. Komp,

Manchester, Missouri, for Appellee/Cross-Appellant. ON BRIEF: Susan Roncarti

Lenz, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky,

for Appellant/Cross-Appellee. Laurence E. Komp, Manchester, Missouri, David H.

Harshaw III, DEPARTMENT OF PUBLIC ADVOCACY, LaGrange, Kentucky for

Appellee/Cross-Appellant.

MARTIN, J., delivered the opinion of the court, in which GRIFFIN, J., joined.

COOK, J. (pp. 9–19), delivered a separate dissenting opinion.

_________________

OPINION

_________________

BOYCE F. MARTIN, JR., Circuit Judge. Warden Thomas L. Simpson appeals

from a district court judgment granting in part Robert Keith Woodall’s petition for a writ

1
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of habeas corpus filed under 28 U.S.C. § 2254. Woodall is a Kentucky prisoner under

sentence of death. Woodall cross-appeals the part of the judgment denying his

remaining claims. Woodall pled guilty to capital murder, capital kidnapping, and firstdegree rape. After a penalty trial, the trial court adopted the recommendation of the jury

and sentenced Woodall to death on the murder conviction and life imprisonment for the

remaining convictions. Woodall unsuccessfully appealed his sentence to the Kentucky

Supreme Court and then filed a writ of habeas corpus in federal district court. The

district court granted Woodall’s petition for a writ of habeas corpus because the trial

court denied him his Fifth Amendment right against self-incrimination and made a

constitutional error during jury selection. For the following reasons, the judgment of the

district court is AFFIRMED. 

I.

The facts of this case have been set forth by the Kentucky Supreme Court,

Woodall v. Commonwealth, 63 S.W.3d 104, 114 (Ky. 2001), and need not be restated in

detail. The victim was a sixteen-year-old female. On January 25, 1997, the night of the

murder, she left her family home between 7:30 p.m. and 8:00 p.m., heading to a nearby

convenience store. When she had not returned home several hours later, her family

contacted the police. The victim’s unclothed body was found floating in a lake, about

one-half mile from the convenience store. Her throat had been slashed twice and her

windpipe was totally severed; officials determined the actual cause of death to be

drowning. 

Woodall pled guilty to capital murder, capital kidnaping, and first-degree rape.

At the penalty trial, Woodall cross-examined each of Kentucky’s eleven witnesses and

called fourteen of his own witnesses who testified about Woodall’s life and upbringing.

Woodall did not testify and requested that the trial judge instruct the jury that it should

not draw any adverse inference from his decision not to testify. The trial judge

concluded that Woodall was not entitled to the requested instruction, determining that,

by entering a guilty plea, Woodall had waived his right to be free from selfincrimination. The jury recommended that Woodall be sentenced to death for the murder
Nos. 09-5352/5406 Woodall v. Simpson Page 3

of the victim. The jury recommended that Woodall be punished to two consecutive life

sentences for the kidnaping and rape. The trial court adopted these recommendations.

On direct appeal, the Kentucky Supreme Court affirmed Woodall’s convictions

and sentences, with two justices dissenting. Id. at 134-35. Woodall filed a motion for

relief from judgment and a motion to vacate his sentence. The trial court denied both

motions and the Kentucky Supreme Court affirmed those decisions. Woodall v.

Commonwealth, No. 2003-SC-000475-MR, 2005 WL 3131603 (Ky. Nov. 23, 2005);

Woodall v. Commonwealth, No. 2004-SC-0931-MR, 2005 WL 2674989 (Ky. Oct. 20,

2005).

In 2006, Woodall filed his section 2254 petition in federal court. The district

court granted habeas relief for two of Woodall’s thirty claimed grounds for relief; the

court denied Woodall’s remaining claims as meritless. Specifically, the district court

granted Woodall’s petition for habeas on his claim that the trial court violated his Fifth

Amendment right against self-incrimination by failing to instruct the jury to draw no

adverse inference from Woodall’s decision not to testify, despite Woodall’s request for

such an instruction. The district court also found that the trial court violated Woodall’s

Fifth, Eighth, and Fourteenth Amendment rights during jury selection when the trial

court allowed Kentucky to use a peremptory challenge to strike an African-American

member of the jury without holding a hearing pursuant to Batson v. Kentucky, 476 U.S.

79 (1986). The warden appeals both of these decisions. Woodall appeals the district

court’s denial of his claim that the trial court improperly instructed the jury that they had

to find any mitigating circumstances unanimously, and the district court’s denial of his

motion for the appointment of a mental retardation expert. Because the failure to instruct

the jury that it could not draw an adverse inference from Woodall’s decision not to

testify was a violation of Woodall’s Fifth Amendment rights, and because we are in

“grave doubt as to the harmlessness” of this violation’s impact on the jury’s decision to

sentence Woodall to death, see O’Neal v. McAninch, 513 U.S. 432, 445 (1995), we

affirm the district court’s grant of the writ of habeas on this basis and do not reach the

other questions presented in this appeal.
Nos. 09-5352/5406 Woodall v. Simpson Page 4

II.

When considering a petition for a writ of habeas corpus under the Antiterrorism

and Effective Death Penalty Act of 1996, this Court may not grant the writ unless it finds

that the state court’s decision was (1) “contrary to, or involved an unreasonable

application of, clearly established Federal law,” or (2) “based on an unreasonable

determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d);

see also Ruelas v. Wolfenbarger, 580 F.3d 403, 408 (6th Cir. 2009). Under the “contrary

to” clause, a federal habeas court may grant the writ “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 materially

indistinguishable facts.” Boykin v. Webb, 541 F.3d 638, 642 (6th Cir. 2008) (citing

Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). Under the “unreasonable application”

clause, “a federal habeas court may grant the writ if the state court identifies the correct

legal principle from the Supreme Court’s decisions but unreasonably applie[d that

principle to] the petitioner’s case.” Id.

The warden challenges the district court’s grant of habeas corpus based on the

district court’s conclusion that the state courts unreasonably applied clearly established

federal law. Woodall’s principal argument is that the state court violated his Fifth

Amendment right against self-incrimination when it refused to give a requested jury

instruction that the jurors draw no adverse inference from his decision not to testify.

The Fifth Amendment, made applicable to the states through the Fourteenth

Amendment, “forbids either comment by the prosecution on the accused’s silence or

instructions by the court that such silence is evidence of guilt.” Griffin v. California,

380 U.S. 609, 615 (1965). The Supreme Court has concluded that the Fifth Amendment

requires a trial judge to give a “no adverse inference” instruction when requested by a

defendant during the guilt phase of a trial. See Carter v. Kentucky, 450 U.S. 288,

303 (1981) (“No judge can prevent jurors from speculating about why a defendant stands

mute in the face of a criminal accusation, but a judge can, and must, if requested to do

so, use the unique power of the jury instruction to reduce that speculation to a
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minimum.”). In Estelle v. Smith, the Supreme Court held that a defendant’s entitlement

to the Fifth Amendment’s protection against self-incrimination extends from the guilt

phase to the penalty phase of a bifurcated capital trial. 451 U.S. 454, 462-63 (1981)

(“We can discern no basis to distinguish between the guilt and penalty phases of

respondent’s capital murder trial so far as the protection of the Fifth Amendment

privilege is concerned.”). More recently, in Mitchell v. United States, the Supreme Court

held that the “rule against negative inferences at a criminal trial appl[ies] with equal

force at sentencing,” even where a defendant has pled guilty. 526 U.S. 314, 329 (1999);

id. at 326 (“Where the sentence has not yet been imposed a defendant may have a

legitimate fear of adverse consequences from further testimony.”).

We are faced with the question of whether Woodall has a clearly established

constitutional right to a requested “no adverse inference” instruction during the penalty

phase of a capital trial where he declined to testify. “The rule against adverse inferences

is a vital instrument for teaching that the question in a criminal case is not whether the

defendant committed the acts of which he is accused. The question is whether the

Government has carried its burden to prove its allegations while respecting the

defendant’s individual rights.” Id. at 330. Woodall’s Fifth Amendment rights survived

his guilty plea, id. at 326, and he was entitled to receive a “no adverse inference”

instruction once he requested it. Cf. Finney v. Rothgerber, 751 F.2d 858, 863-64

(6th Cir. 1985) (finding that the “due process clause requires a trial court, if requested,

to instruct the jury during the enhancement portion of a bifurcated trial of one charged

as a persistent felony offender that no adverse inference may be drawn from the

defendant’s failure to testify”).

We agree with the district court that reading Carter, Estelle, and Mitchell

together, the only reasonable conclusion is that the trial court violated Woodall’s Fifth

Amendment rights by refusing to give a requested “no adverse inference” instruction.

The Kentucky Supreme Court’s denial of this constitutional claim was an unreasonable

application of Carter, Estelle, and Mitchell. See Williams, 529 U.S. at 407 (“[A] statecourt decision [is] an unreasonable application of [the Supreme] Court’s precedent if the
Nos. 09-5352/5406 Woodall v. Simpson Page 6

state court . . . unreasonably refuses to extend [a legal] principle to a new context where

it should apply.”); Mason v. Mitchell, 543 F.3d 772, 772 (6th Cir. 2008) (“Clearly

established law . . . encompasses more than just bright-line rules laid down by the

Supreme Court. It also clearly includes legal principles and standards enunciated in the

Court’s decisions.” (alterations and internal quotation marks omitted)). The district

court held that a capital defendant has a Fifth Amendment right to a “no adverse

inference” instruction during the sentencing phase of a trial, even if guilt has already

been established through a plea agreement. We agree. “Given the gravity of the

decision to be made at the penalty phase, the State is not relieved of the obligation to

observe fundamental constitutional guarantees.” Estelle, 451 U.S. at 463. At stake in

the penalty phase of a capital trial such as Woodall’s is not only what specific

punishment the defendant will receive, but whether he will be put to death. The due

process clause requires that a trial court, if requested by the defendant, instruct the jury

during the penalty phase of a capital trial that no adverse inference may be drawn from

a defendant’s decision not to testify.

The warden argues that any error resulting from the district court’s failure to give

a “no adverse inference” instruction was harmless because it did not have a substantial

and injurious effect or influence on the sentence of this case. For purposes of federal

habeas corpus review, a constitutional error that implicates trial procedures is considered

harmless unless it had a “substantial and injurious effect or influence in determining the

jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation

marks omitted); Doan v. Carter, 548 F.3d 449, 459 (6th Cir. 2008); see also Stewart v.

Erwin, 503 F.3d 488, 501 n.5 (6th Cir. 2007) (applying the harmless error standard to

constitutional errors in sentencing). “Under this standard, habeas petitioners may obtain

plenary review of their constitutional claims, but they are not entitled to habeas relief

based on trial error unless they can establish that it resulted in ‘actual prejudice.’”

Brecht, 507 U.S. at 637. To determine the effect of an error, the court must determine

“whether the [outcome that was] actually rendered in this trial was surely unattributable

to that error.” Doan, 548 F.3d at 459 (internal quotation marks omitted). The Supreme

Court has observed that “it is arguable that a refusal to give [a ‘no adverse inference’
Nos. 09-5352/5406 Woodall v. Simpson Page 7

instruction] can never be harmless.” Carter, 450 U.S. at 304 (declining to reach the

question because it was not then presented and had not been before the state court); see

also Lakeside v. Oregon, 435 U.S. 333, 340 & n.10 (1978) (discussing the likelihood that

a jury will draw an adverse inference from a defendant’s decision not to testify). “The

Supreme Court has emphasized . . . that when a habeas court is in grave doubt as to the

harmlessness of an error that affects substantial rights, it should grant relief.” Erwin,

503 F.3d at 501 (internal quotation marks omitted). “[G]rave doubt” means “that, in the

judge’s mind, the matter is so evenly balanced that he feels himself in virtual equipoise

as to the harmlessness of the error.” O’Neal, 513 U.S. at 435; see also id. at 437-38

(“[I]f one cannot say, with fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the judgment was not substantially

swayed by the error, it is impossible to conclude that substantial rights were not

affected.”).

The warden argues that any error in the court’s failure to instruct the jury was

harmless because of the overwhelming evidence of Woodall’s guilt presented during the

penalty phase and the overwhelming evidence of the heinousness of the crimes, and

because Woodall admitted the statutory aggravators necessary to impose the death

penalty. If it were the case that a finding of the existence of statutory aggravators

compels the imposition of the death penalty, then perhaps the trial court’s error would

have been “harmless.” But the finding of the aggravating circumstances did not compel

the jury to recommend a death sentence: the jury could have rejected the death penalty

even if it found the existence of aggravating circumstances beyond a reasonable doubt.

See Skaggs v. Parker, 235 F.3d 261, 271 (6th Cir. 2000) (describing the variety of

mitigating circumstances that a jury can consider during a penalty phase under Kentucky

law). Because we cannot know what led the jury to make the decision that it did, and

because the jury may well have based its decision on Woodall’s failure to testify, we

cannot conclude that this is a case of “harmless error.” See Carter, 450 U.S. at 304

(noting that it is “arguable” that refusing to give a “no adverse inference instruction” is

“never” harmless); Ullman v. United States, 350 U.S. 422, 426 (1956) (“Too many, even

those who should be better advised, view this privilege as a shelter for wrongdoers.
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They too readily assume that those who invoke it are either guilty of crime or commit

perjury in claiming the privilege.”); see also Bruno v. United States, 308 U.S. 287, 294

(1939). Indeed, the trial court itself appears to have drawn an adverse inference from

Woodall’s decision not to testify: in denying the requested instruction, the trial court

stated that it was “aware of no case law that precludes the jury from considering the

defendant’s lack of explanation of remorse or explanation of the crime or anything else

once guilt has been adjudged in sentencing.” The trial court’s own inferences illustrate

our concern. Given our grave doubt that the jury’s recommendation was not influenced

by adverse inferences drawn from Woodall’s decision not to testify, we “cannot say,

with fair assurance, after pondering all that happened without stripping the erroneous

action from the whole, that the judgment was not substantially swayed by the error.”

O’Neal, 513 U.S. at 437 (internal quotation marks omitted). Under these circumstances,

“it is impossible to conclude that the substantial rights were not affected.” Id. at 437-38

(internal quotation marks omitted). Therefore, under O’Neal, we treat the error as

harmful and grant Woodall’s petition on this basis. See Jensen v. Romanowski, 590 F.3d

373, 381 (6th Cir. 2009) (applying O’Neal where the court could not “be certain that the

error had ‘no or small effect’ on the jury’s verdict” and had “‘grave doubt’ that the error

was harmless”). Because the violation of Woodall’s substantial rights requires issuance

of the writ, we do not address—or pass judgment upon—the other claims at issue in this

appeal.

III.

For the foregoing reasons, the judgment of the district court is AFFIRMED. We

REMAND with instructions to conditionally grant the writ unless the State of Kentucky

elects to initiate resentencing proceedings within 180 days of the district court’s order.
Nos. 09-5352/5406 Woodall v. Simpson Page 9

_____________

DISSENT

_____________

COOK, Circuit Judge, dissenting. In granting habeas relief, today’s majority

finds a prejudicial violation of clearly established federal law in the trial court’s failure

to provide a Carter instruction to the sentencing jury after the defendant pleaded guilty

to the relevant criminal conduct. Yet, the Kentucky Supreme Court carefully considered

petitioner’s Fifth Amendment claim in light of the same Supreme Court

decisions—Carter, Estelle, and Mitchell—and rightly found that none addresses the

circumstances presented here. The majority disregards that analysis, finds a violation

of clearly established law, and ultimately resolves the matter in favor of speculation,

worrying that the jury may have punished petitioner for failing to testify. This, despite

a mountain of undisputed evidence that petitioner abducted, raped, maimed, and

drowned a sixteen-year-old high school student. The court’s judgment defies AEDPA

deference and the Supreme Court’s harmless-error teachings. I respectfully dissent.

I. 

Petitioner argues that the Fifth Amendment required the trial court to give a

Carter instruction to his sentencing jury—i.e., to instruct the sentencing jury to draw no

adverse inference from his decision not to testify at the sentencing hearing. Because the

appeal arises on habeas review, it turns on whether the Kentucky Supreme Court

“unreasonabl[y] appli[ed] . . . clearly established [f]ederal law, as determined by the

Supreme Court of the United States,” in rejecting petitioner’s claim. 28 U.S.C.

§ 2254(d)(1). The majority answers in the affirmative, citing three Supreme Court

decisions: Carter v. Kentucky, 450 U.S. 288 (1981); Estelle v. Smith, 451 U.S. 454

(1981); and Mitchell v. United States, 526 U.S. 314 (1999). The majority overlooks,

however, the Kentucky Supreme Court’s careful and correct distinguishing of those

cases, both on their facts and the legal principles at stake. Kentucky’s highest court

reasoned as follows:
Nos. 09-5352/5406 Woodall v. Simpson Page 10

Woodall argues that he was denied due process, his right not to

testify and a reliable sentence determination when the trial judge refused

to instruct the jury to draw no adverse inference from the decision of

Woodall not to testify during the penalty trial. Woodall pled guilty to all

of the charged crimes as well as the aggravating circumstances. The no

adverse inference instruction is used to protect a nontestifying defendant

from seeming to be guilty to the jury because of a decision not to testify.

That is not the situation presented here. The instruction contemplated by

Carter v. Kentucky, 450 U.S. 288, 101 S. Ct. 1112, 67 L. Ed. 2d 241

(1981), could not have changed the outcome of a guilty determination

that the defendant acknowledged by his admission of guilt. There was no

reason or need for the jury to make any additional inferences of guilt.

There is no error in this respect. Any possible error would be

nonprejudicial because the defendant admitted the crimes and the

evidence of guilt is overwhelming. Woodall claims that Estelle v. Smith,

451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981), extended Fifth

Amendment protection and thus the Carter, supra, rule to the penalty

phase of a trial. Estelle, supra, is not a jury instruction case, unlike

Carter. Estelle does not cite to Carter or indicate that Carter has been

extended. The factual situation in Estelle is different from that presented

in this case because it involved the use of an out-of-court statement the

defendant made to a government expert. The statement in that case was

in regard to a psychological examination by the government prosecutors

which was used against the defendant without warning in the penalty

trial. Neither Carter nor Estelle involved a guilty plea. Here, Woodall

admitted guilt to all charges and did not contest the facts. He was not

compelled to testify so there were no words that could be used against

him so as to implicate the Fifth Amendment privilege as in Estelle.

Woodall contends that Mitchell v. United States, 526 U.S. 314,

119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999), permits a guilty plea which

does not waive the privilege against self-incrimination at the sentencing

phase. Mitchell, supra, does not apply here. In Mitchell, the defendant

pled guilty to federal charges of conspiring to distribute five or more

kilograms of cocaine and of distributing cocaine within 1000 feet of a

school or playground. She reserved the right to contest the amount of the

cocaine at the penalty phase. The amount of the cocaine would determine

the range of penalties. She only admitted that she had done “some of” the

conduct charged. She did not testify. Three other codefendants did testify

as to the amount of cocaine she had sold. Ultimately, the U.S. Supreme

Court ruled that it would not permit a negative inference to be drawn

about her guilt with regard to the factual determination respecting the

circumstances and details of the crime. Here, Woodall did not contest any

of the facts or aggravating circumstances surrounding the crimes.
Nos. 09-5352/5406 Woodall v. Simpson Page 11

Woodall v. Commonwealth, 63 S.W.3d 104, 115 (Ky. 2001), cert. denied, 123 S. Ct. 145

(2002). Only one Justice dissented from this portion of the court’s judgment. See id. at

134 (Stumbo, J., dissenting), 135 (Keller, J., dissenting on other grounds) (deeming any

error in this regard harmless, “because the defendant not only pled guilty, but admitted

to the aggravating circumstances”).

Because the Kentucky Supreme Court applied the correct legal standards, and the

facts of this case differ materially from the circumstances of Carter, Estelle, and

Mitchell, AEDPA strictly limits our review to whether the Kentucky Supreme Court

unreasonably applied rules clearly established by those cases. 28 U.S.C. § 2254(d)(1).

“[C]learly established,” in this context, confines our inquiry to “the holdings, as opposed

to the dicta, of [U.S. Supreme Court] decisions as of the time of the relevant state-court

decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). And “[u]nreasonable

application” means “objectively unreasonable,” not simply incorrect. Lockyer v.

Andrade, 538 U.S. 63, 75–76 (2003) (explaining that AEDPA deference requires more

than clear error). Under this standard, a habeas petitioner “must show that the state

court’s ruling on the claim being presented in federal court was so lacking in justification

that there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786–87

(2011). In other words, we may not grant habeas relief “so long as ‘fairminded jurists

could disagree’ on the correctness of the state court’s decision.” Id. at 786 (quoting

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); accord Gagne v. Booker, 680 F.3d

493, 512–14 (6th Cir. 2012) (en banc plurality opinion).

AEDPA deference requires careful inspection of the distinctions highlighted by

the Kentucky Supreme Court. “[E]valuating whether a rule application was

unreasonable requires considering the rule’s specificity. The more general the rule, the

more leeway courts have in reaching outcomes in case-by-case determinations.”

Harrington, 131 S. Ct. at 786 (quoting Yarborough, 541 U.S. at 664); see also Moses v.

Payne, 555 F.3d 742, 754 (9th Cir. 2009) (“[W]hen a Supreme Court decision does not

‘squarely address[ ] the issue in th[e] case’ or establish a legal principle that ‘clearly
Nos. 09-5352/5406 Woodall v. Simpson Page 12

extend[s]’ to a new context to the extent required by the Supreme Court in these recent

decisions, [Wright v. Van Patten, 552 U.S. 120, 125 (2008),] it cannot be said, under

AEDPA, there is ‘clearly established’ Supreme Court precedent addressing the issue

before us, and so we must defer to the state court’s decision.”). The majority does not

suggest that any of its Fifth Amendment cases alone clearly established the trial court’s

obligation to give the no-adverse-inference instruction under the circumstances of this

case. Rather, it reads Carter, Estelle, and Mitchell as protecting a defendant’s Fifth

Amendment privilege at all stages of criminal proceedings, regardless of whether the

defendant disputes any of the incriminating evidence.

Only Carter addresses the need for a prophylactic jury instruction to protect the

Fifth Amendment privilege against self-incrimination. Noting the tendency of juries to

infer guilt from a defendant’s silence, Carter held that trial courts must provide a

no-adverse-inference instruction during the guilt phase of a criminal trial upon request.

450 U.S. at 303. Yet, as the majority appears to recognize, Carter did not consider a

defendant’s entitlement to such an instruction at post-guilt stages of criminal

proceedings or the effect of a defendant’s guilty plea on that right—two variations

relevant to this appeal. See id. at 289–90, 300–05.

Estelle and Mitchell speak more directly to these issues, generally recognizing

that the Fifth Amendment privilege extends to the sentencing phase of criminal trials and

that a generic guilty plea does not waive this right. But importantly, neither case

extended the Carter remedy—a right to a no-adverse-inference instruction—to those

specific circumstances. Estelle involved a state’s surprise use of defendant’s pre-trial

statements to establish a necessary aggravating factor (future dangerousness) for capital

punishment. 451 U.S. at 462–63. The defendant made the statements at a court-ordered,

pre-trial psychiatric evaluation without the benefit of Miranda warnings. The Fifth

Amendment violation thus involved both the coercive nature of the interrogation

procedure and the state’s use of the defendant’s unwitting pre-trial statements to

establish a necessary penalty factor against him. Id. at 467–69 (vacating the death

sentence). Similarly, Mitchell found a Fifth Amendment violation where the sentencing
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judge admitted to drawing an adverse inference regarding a disputed aggravating

factor—the amount of drugs involved—from the defendant’s failure to rebut the

government’s sentencing-hearing witnesses. Although the defendant previously pleaded

guilty to a drug-conspiracy crime, she disputed the government’s drug-quantity position,

which carried a heavier penalty. Because her guilty plea did not eliminate the possibility

of additional punishment, the Mitchell Court found that the Fifth Amendment precluded

the trial court from drawing an adverse inference from her silence. 526 U.S at 330.

Admittedly, Estelle and Mitchell discuss the Fifth Amendment privilege in

expansive terms. From Estelle: 

The Fifth Amendment privilege is as broad as the mischief against which

it seeks to guard, and the privilege is fulfilled only when a criminal

defendant is guaranteed the right to remain silent unless he chooses to

speak in the unfettered exercise of his own will, and to suffer no penalty

. . . for such silence.

451 U.S. at 467–68 (internal citations and quotation marks omitted). Mitchell goes

further, with the following statements:

Treating a guilty plea as a waiver of the privilege at sentencing

would be a grave encroachment on the rights of defendants. . . . 

. . . .

Where the sentence has not yet been imposed a defendant may

have a legitimate fear of adverse consequences from further

testimony. . . .

. . . .

The concerns which mandate the rule against negative inferences

at a criminal trial apply with equal force at sentencing. Without question,

the stakes are high: Here, the inference drawn by the District Court from

petitioner’s silence may have resulted in decades of added imprisonment.

The Government often has a motive to demand a severe sentence, so the

central purpose of the privilege—to protect a defendant from being the

unwilling instrument of his or her own condemnation—remains of vital

importance. 

. . . .
Nos. 09-5352/5406 Woodall v. Simpson Page 14

. . . The rule against adverse inferences is a vital instrument for teaching that the

question in a criminal case is not whether the defendant committed the acts of which he

is accused. The question is whether the Government has carried its burden to prove its

allegations while respecting the defendant's individual rights. The Government retains

the burden of proving facts relevant to the crime at the sentencing phase and cannot

enlist the defendant in this process at the expense of the self-incrimination privilege. . . .

526 U.S. at 324, 326, 329, 330. But these statements must be read in context. Estelle

involved the actual use of a defendant’s coerced statements against him. Both Estelle

and Mitchell presented an adverse inference that effectively shifted the government’s

burden of proving a disputed aggravating circumstance to the defendant. Accordingly,

both cases involved government or court actions that penalized the defendant—by

exposing the defendant to greater punishment—for exercising the Fifth

Amendment privilege.

This case did not. The state did not coerce petitioner to make any statement.

Nor did it seek an adverse inference or oppose petitioner’s request for a Carter

instruction during the sentencing hearing. And, importantly, the state did not shift its

burden of proving a disputed aggravating factor to petitioner. The state’s current

opposition to habeas relief reflects the unique circumstances of Woodall’s sentencing

hearing—namely, that his guilty plea admitted both the relevant criminal conduct and

the required aggravating circumstances for the death penalty (rape and kidnapping), and

that his sentencing position did not dispute any of these facts. Now that Woodall has

been sentenced, the state has a legitimate interest in opposing Woodall’s stance on the

Carter instruction. In the absence of disputed facts, Woodall’s silence would

demonstrate only a lack of remorse; a Carter instruction would restrict the jury from

considering that relevant fact. Considering that Mitchell expressly exempted

lack-of-remorse and acceptance-of-responsibility findings from its holding, 526 U.S. at

330, the state has good reason to believe that the Fifth Amendment did not require the

Carter instruction here.

In sum, the punitive element so critical in Estelle and Mitchell—the state’s use

of the defendant’s silence to impose greater punishment—is wholly absent. Cf. Lakeside

v. Oregon, 435 U.S. 333, 344 (1978) (explaining that “the government may not add
Nos. 09-5352/5406 Woodall v. Simpson Page 15

1

The majority’s passing mention of Finney v. Rothgerber, 751 F.2d 858, 864 (6th Cir. 1985) does

not fit this bill for a number of reasons. First, Finney is not a Supreme Court decision and therefore not

“clearly established” federal law under AEDPA. See 28 U.S.C. § 2254(d)(1); Williams, 529 U.S. at 412.

Second, the decision predates the enactment of AEDPA, and thus did not assess the state-court judgments

under its deferential “unreasonable application of . . . clearly established [f]ederal law” standard. And

third, the court found the Fifth Amendment violation harmless under the demanding, pre-Brecht, Chapman

rule, noting that undisputed evidence satisfied “all of the statutory requirements for guilt as a persistent

felony offender.” Finney, 751 F.2d at 864–65.

unnecessarily to the risk taken by a defendant who stands mute”). And none of the Fifth

Amendment cases cited by the majority clearly establishes the right to a Carter

instruction in these circumstances.1 The majority’s position extends the rules of those

cases, and fairminded jurists may differ in the application of those rules to the facts in

this case.

Six Justices of the Kentucky Supreme Court, in fact, did so. The majority

improperly dismisses their judgment (as well as the Report and Recommendation of the

federal magistrate judge) without so much as a nod to the standard that the judgment be

beyond the purview of fairminded jurists. This stance not only flouts the AEDPA

standard, but also undermines the animating purposes of AEDPA deference: comity,

finality, and federalism. See, e.g., Woodford v. Garceau, 538 U.S. 202, 206 (2003).

Reasonable though the majority’s Fifth Amendment analysis may be, AEDPA

deference precludes us from substituting our reasonable judgment for that of the state’s

highest court. In my view, the Kentucky Supreme Court reasonably applied federal law.

II.

The majority compounds its error by engaging in a form of possible-harm review

that verges on a presumption of prejudice. This leniency appears both in its emphasis

on dicta opining about the likelihood that juries draw adverse inferences, and in its

ultimate finding of a “very real risk” of prejudice. Alas, the correct harmless-error

standard does not permit such speculation, and neither does the undisputed evidence of

this heinous crime.

As foreshadowing of the harmless-error review to come, the court twice

emphasizes a statement in Carter that “it is arguable that a refusal to give an instruction
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2

Bruno v. United States, cited by the majority, does not counsel otherwise, both because it

involved a statutory privilege and statutory harmless-error review, and because it predates Chapman’s

mandate of harmless-error review for most constitutional errors. Bruno v. United States, 308 U.S. 287,

293–94 (1939) (construing federal statute guaranteeing a defendant’s right to testify or remain silent to

require a preemptive, no-adverse-inference instruction, and finding harmful the denial of that right). 

During oral argument, petitioner’s counsel briefly suggested that the denial of a Carter instruction

here constituted a “structural” error exempt from harmless-error review. See generally Brecht v.

Abrahamson, 507 U.S. 619, 629 (1993) (differentiating between “trial error[s]” subject to harmless-error

review and “structural defects” presumed prejudicial). But counsel did not make that argument in

petitioner’s appellate brief (see Appellee Br. at 32–37), and therefore offers no explanation for the

harmless-error review in Chapman—a case involving a more severe Fifth Amendment violation—or our

decision in Finney. More recent articulations of what constitutes “structural error” do not disturb these

precedents. See, e.g., Neder v. United States, 527 U.S. 1, 8 (1999) (reiterating that “most constitutional

errors can be harmless” and describing “structural errors” as “defect[s] affecting the framework within

which the trial proceeds” that “deprive defendants of basic protections” so as to undermine the reliability

of the trial’s “determination of guilt or innocence” (internal citations and quotation marks omitted)).

similar to the one that was requested here can never be harmless.” 450 U.S. at 304. Yet

because Carter declined to decide the issue, our decision in Finney v. Rothgerber

requires us to review for harmless error. 751 F.2d 858, 864 (6th Cir. 1985) (reviewing

for harmless error the state court’s failure to give a Carter instruction during the

persistent-felony-offender penalty phase of a criminal trial); see also Chapman v.

California, 386 U.S. 18, 22 (1967) (subjecting most constitutional claims to harmlesserror review, including a prosecutor’s comment about the defendant’s exercise of the

Fifth Amendment privilege); Hunter v. Clark, 934 F.2d 856, 859–60 (7th Cir. 1991) (en

banc) (justifying application of harmless-error review to a Carter claim by noting the

more severe infraction on the Fifth Amendment privilege resolved by harmless-error

review in Chapman); Richardson v. Lucas, 741 F.2d 753, 755 (5th Cir. 1984) (same).2

The majority ostensibly concedes this point.

It then begins its harmless-error review on the right track, citing Brecht v.

Abrahamson, 507 U.S. 619 (1993) for the standard applicable to habeas cases. From

Brecht, the majority correctly defines harmful error as one “ha[ving] substantial and

injurious effect or influence in determining the jury’s verdict.” Id. at 637 (citation

omitted). But then the majority offers conflicting statements from Brecht and Doan v.

Carter, 548 F.3d 449, 459 (6th Cir. 2008), first saying that the petitioner must establish

“actual prejudice,” and then suggesting that harmless error refers only to outcomes

“surely unattributable to [the alleged] error.” The majority’s conclusion—that the
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absence of a Carter instruction may have influenced the jury—reveals that it tips the

scales in favor of the habeas petitioner.

As the majority appears to acknowledge, O’Neal v. McAninch clarified the

habeas harmless-error standard announced in Brecht. O’Neal v. McAninch, 513 U.S. 432

(1995); see also Fry v. Pliler, 551 U.S. 112, 121 n.3 (2007) (plurality). O’Neal

explained that Brecht’s “actual prejudice” language did not burden the habeas petitioner

to produce evidence of prejudice. 513 U.S. at 436–39. It did, however, acknowledge

the more lenient harmless-error standard applicable to habeas cases, as compared to

direct appeals. O’Neal, 513 U.S. at 438 (differentiating the Brecht standard from the

“stricter” Chapman standard); see also Fry, 551 U.S. at 119–20 (explaining that the

Brecht/Chapman harmless-error dichotomy survived AEDPA’s enactment). After

O’Neal, “grave doubt” became the harmfulness threshold for habeas harmless-error

review. O’Neal, 513 U.S. at 435. “Grave doubt” refers to situations where, after

reviewing the record, “the matter is so evenly balanced that [the judge] feels himself in

virtual equipoise as to the harmlessness of the error.” Id.; see also id. at 436–37 (“[W]e

think it conceptually clearer for the judge to ask directly, ‘Do I, the judge, think that the

error substantially influenced the jury’s decision?’ than for the judge to try to put the

same question in terms of proof burdens (e.g., ‘Do I believe the party has borne its

burden of showing . . .?’).”).

Our cases follow this guidance. E.g., Ferensic v. Birkett, 501 F.3d 469, 480–81

(6th Cir. 2007); Caldwell v. Bell, 288 F.3d 838, 842–43 (6th Cir. 2002). Doan did not,

though it still found harmless error under a stricter standard. Doan, 548 F.3d at

459 (neglecting to cite O’Neal, and instead applying the “surely unattributable” standard

from Sullivan v. Louisiana, 508 U.S. 275, 279 (1993), a case applying Chapman

harmless-error review on direct appeal). We must follow the “grave doubt” method

advanced in O’Neal.

With this standard, review of the record here leaves little room for doubt, let

alone grave doubt. The state presented eleven witnesses and the defense fourteen. The

sentencing jury heard undisputed evidence of the abduction, rape, maiming, and
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drowning of the victim; petitioner admitted as much by virtue of his guilty plea.

Undisputed forensic evidence corroborated these facts. On the issue of remorse, the jury

heard independent testimony from petitioner’s mother that, shortly after the murder,

petitioner came to her house, sat in a recliner, and watched television as if nothing had

happened. Petitioner even benefitted from a jury instruction (No. 1) he did not deserve,

which told the jurors to presume his innocence of the aggravating factors he admitted,

unless the state presented proof beyond a reasonable doubt.

Conversely, the jury heard nothing about petitioner’s silence from the state or

from the trial court, and we have no way of knowing whether it even noticed.

Nevertheless, the majority assumes “a very real risk” that his silence “had substantial

and injurious effect or influence” on the verdict. Faced with this overwhelming and

undisputed evidence, why would it?

The majority faults the trial judge for drawing an adverse inference (the Mitchell

mistake), but the judge did nothing more than issue a legal ruling, stating that he knew

of no authority precluding a sentencing jury from considering a defendant’s lack of

remorse. And even if he did draw an adverse inference, the jury who made the

sentencing recommendation did not hear this statement. Petitioner correctly notes that,

under Kentucky law, the sentencing jury retains the discretion to recommend a life

sentence, despite the presence of aggravating factors. Yet, that fact does not make it any

more likely that Woodall’s silence substantially affected the jury’s verdict. 

Notably absent from the majority’s harmless-error analysis is any discussion of

Finney, a case the majority cites as supporting its finding of a constitutional violation.

Finney involved somewhat similar circumstances, in that the trial court refused to give

a Carter instruction to the sentencing jury in a post-guilt, persistent-felony-offender

hearing. There, despite finding a Fifth Amendment violation, we held that “[t]he

overwhelming evidence of guilt as a persistent felony offender makes failure to give the

requested instruction harmless beyond a reasonable doubt as to that issue.” Finney,

751 F.2d at 864–65 (noting that undisputed evidence established the statutory

prerequisites for the sentencing enhancement). We did so, despite applying the stricter,
Nos. 09-5352/5406 Woodall v. Simpson Page 19

pre-Brecht, Chapman standard, which required harmlessness “beyond a reasonable

doubt.” One can only wonder how the circumstances deemed harmless beyond a

reasonable doubt in Finney somehow become harmful under the more lenient

“substantial and injurious effect” standard of Brecht, or even leave “grave doubt” as to

harmfulness under O’Neal.

“There is, of course, a strong policy in favor of accurate determination of the

appropriate sentence in a capital case, but there is an equally strong policy against

retrials years after the first trial where the claimed error amounts to no more than

speculation.” Boyde v. California, 494 U.S. 370, 380 (1990). The state expended

significant resources to ensure a fair sentencing hearing for Woodall. The majority

brushes that aside on supposition. Pure conjecture does not establish grave doubt. I

harbor none and would deny the writ.