No Nexus Requirement Under AEDPA: Sixth Circuit En Banc Clarifies How State Courts May Weigh Mitigation in Capital Cases

Introduction

In Hodge v. Plappert, No. 17-6032 (6th Cir. May 7, 2025) (en banc), the Sixth Circuit affirmed the denial of federal habeas relief to Kentucky death-row inmate Benny Lee Hodge. The case arises from the 1985 robbery of Dr. Roscoe Acker’s home in Fleming-Neon, Kentucky, and the brutal murder of his daughter, Tammy Dee Acker. The federal habeas petition presented three principal issues:

Ineffective assistance of counsel at the penalty phase for failure to investigate and present mitigation evidence (Strickland prejudice).
Alleged jury tampering during the sequestered capital trial (credibility-based factual determinations under 28 U.S.C. § 2254(d)(2)).
Jury bias (procedural default for failure to exhaust in state court).

A panel of the Sixth Circuit had granted relief on the Strickland claim, concluding that Kentucky unreasonably discounted powerful mitigation evidence of catastrophic childhood abuse. The Sixth Circuit took the case en banc, vacated the panel decision, and—by a broad majority—held that the Kentucky Supreme Court’s denial of postconviction relief was neither contrary to nor an unreasonable application of clearly established Supreme Court law under the Antiterrorism and Effective Death Penalty Act (AEDPA). The court also rejected the jury tampering claim under AEDPA’s deferential factual-review standard and held the jury-bias claim procedurally defaulted.

Summary of the Opinion

Standard of review: Applying AEDPA, the court emphasized the “only question that matters” is whether the state court’s ruling is beyond any possibility for fairminded disagreement, not how the federal court would decide the issue de novo.
Ineffective assistance (penalty phase): The Kentucky Supreme Court correctly identified and reasonably applied Strickland’s prejudice standard in concluding that, even with the unpresented mitigation evidence of extreme childhood abuse and PTSD, there was no reasonable probability at least one juror would have rejected death in light of overwhelming aggravating circumstances. The court rejected arguments that Kentucky imposed an impermissible “nexus requirement.”
Jury tampering: The Kentucky Supreme Court’s credibility-based determination—finding no credible evidence of juror access to media, alcohol, or improper contact—was not an unreasonable determination of fact under § 2254(d)(2), especially given the bailiff’s contradictory testimony and a juror’s contrary account.
Jury bias: The claim was procedurally defaulted because it was not exhausted in state court; the petitioner showed neither cause nor prejudice to excuse the default.
Disposition: The en banc court affirmed the district court’s denial of the writ.

Analysis

Precedents Cited and Their Influence

Strickland v. Washington, 466 U.S. 668 (1984): Establishes the two-prong ineffective-assistance test (deficient performance and prejudice). The prejudice inquiry asks whether there is a reasonable probability the outcome would have been different. The Kentucky Supreme Court invoked and applied this framework, weighing the proposed mitigation against the aggravation.
Harrington v. Richter, 562 U.S. 86 (2011): Under AEDPA, habeas relief lies only where the state court’s error is beyond any fairminded disagreement; federal courts must not substitute their judgment for that of state courts. The majority repeatedly frames its analysis through Richter’s lens.
Williams v. Taylor, 529 U.S. 362 (2000): A cornerstone mitigation case holding that evidence of severe childhood abuse can substantially alter moral culpability. The dissent relies heavily on Williams to argue that Kentucky improperly required a causal “rationale” for the crime, contrary to Williams’s recognition that mitigation can matter even if it does not explain the crime. The majority distinguishes Williams on AEDPA’s deferential terms and by emphasizing the weight of aggravation here.
Wiggins v. Smith, 539 U.S. 510 (2003) and Rompilla v. Beard, 545 U.S. 374 (2005): Both find prejudice where counsel omitted powerful mitigation. The majority explains the mitigating records and aggravators in those cases differ materially and do not make Kentucky’s decision objectively unreasonable.
Porter v. McCollum, 558 U.S. 30 (2009): Prejudice found where omitted mitigation (including decorated combat trauma) could have influenced a penalty verdict in a non-“especially heinous” crime-of-passion setting. The majority contrasts Porter’s aggravation profile to Hodge’s calculated, pecuniary, and exceptionally brutal crime.
Shinn v. Kayer (“Kayer”), 592 U.S. 111 (2020): Reaffirms AEDPA deference in Strickland-prejudice review. Even where mitigation seems weighty, federal courts may not displace a state court’s reasonable weighing. The majority aligns Hodge with Kayer’s approach: premeditation and profit motive can outweigh mitigation.
Thornell v. Jones, 602 U.S. 154 (2024): Permits courts to discount mitigating evidence when it lacks a causal link to the crime, as part of the comparative weighing process. The majority uses Thornell to show that the Kentucky Supreme Court permissibly noted the absence of a causal tie—without imposing a categorical nexus requirement.
Woodford v. Visciotti, 537 U.S 19 (2002) and Rogers v. Mays, 69 F.4th 381 (6th Cir. 2023) (en banc): Caution against “flyspecking” state-court opinions or imposing opinion-writing formalities. The majority refuses to extract a single sentence to redefine Kentucky’s entire Strickland analysis.
Wilson v. Sellers, 584 U.S. 122 (2018): Review focuses on the last reasoned state decision; here, the Kentucky Supreme Court’s 2011 opinion.
Shinn v. Ramirez, 596 U.S. 366 (2022) and Edwards v. Vannoy, 593 U.S. 255 (2021): Emphasize finality, federalism, and AEDPA’s narrow role in collateral review. The majority situates its approach within these principles.
Tuilaepa v. California, 512 U.S. 967 (1994); Eddings v. Oklahoma, 455 U.S. 104 (1982); Franklin v. Lynaugh, 487 U.S. 164 (1988) (O’Connor, J., concurring): Establish the permissible scope of aggravating/mitigating considerations and the moral-culpability inquiry that frames capital sentencing. These cases inform both the majority’s and the concurring opinions’ discussion of how mitigation relates to the crime.
Brown v. Davenport, 596 U.S. 118 (2022): Even if AEDPA is satisfied, relief issues only if “law and justice require,” underscoring the stringency of federal habeas relief.
Coleman v. Thompson, 501 U.S. 722 (1991): Grounds the procedural default ruling on the unexhausted jury-bias claim.

Legal Reasoning

1) The Strickland Prejudice Inquiry Under AEDPA

The court accepts that counsel’s performance at the penalty phase was deficient: trial counsel presented virtually no mitigation—just a two-sentence stipulation—despite the availability of extensive evidence of severe and prolonged childhood abuse, trauma, and PTSD. The central question was prejudice: whether there is a reasonable probability that at least one juror would have struck a different balance if counsel had presented the omitted mitigation. Under AEDPA, the Sixth Circuit’s task was not to reweigh the balance de novo, but to decide whether the Kentucky Supreme Court’s no-prejudice conclusion was contrary to or an unreasonable application of clearly established Supreme Court precedent.

The majority holds that Kentucky applied the correct legal standard: it expressly cited Strickland, considered the totality of the evidence, and balanced mitigation against the “particularly depraved and brutal nature” of the crime and Hodge’s history of violent criminal conduct and escapes. In that balancing, the Kentucky court noted that the mitigation evidence “offers virtually no rationale” for a premeditated, cold-blooded double attack (murder and attempted murder) of strangers, and concluded there was no reasonable probability of a different sentence.

The en banc court rejects the argument that this “virtually no rationale” language imposed a forbidden causal-nexus requirement. Drawing on Thornell, the majority explains that a court may permissibly assign less weight to mitigation that does not causally relate to the crime so long as it does not categorically exclude such evidence from consideration. Reading the state opinion as a whole (Visciotti; Rogers), the majority finds that Kentucky weighed all evidence and did not exclude mitigation; it simply found it unpersuasive relative to overwhelming aggravation—planning, pecuniary motive, impersonation of law enforcement, binding and gagging the victims, a ferocious stabbing that drove the knife through the victim’s body, immediate flight across states, and post-crime boasting and conspicuous consumption.

Citing Kayer and Richter, the court emphasizes the “double deference” that applies to Strickland prejudice determinations under AEDPA. Even if a federal judge might have found prejudice on direct review, habeas relief is reserved for decisions so wrong that no fairminded jurist could agree. That demanding threshold was not met here.

2) The Concurring Opinions

Judge Nalbandian (joined by Judges Griffin and Thapar): Stresses that weighing mitigation in light of the crime’s circumstances is not only permissible, but essential to assessing “moral culpability,” citing Williams and Eddings. He argues the Kentucky Supreme Court did not limit mitigation to evidence that “explained” the crime; it simply recognized that, as a practical matter, mitigation that does not bear on the crime’s nature often carries less persuasive force.
Judge Bloomekatz: Acknowledges that she would find prejudice on direct review given the “harrowing” mitigation record, but agrees that AEDPA deference controls the outcome. She cautions future courts not to undervalue severe childhood trauma simply because it does not directly “explain away” a heinous crime; mitigation can still be decisive to mercy decisions.

3) The Dissent

Judge White (joined by Judges Moore, Clay, and Stranch) contends that the Kentucky Supreme Court’s analysis was “contrary to” Williams, Wiggins, and Rompilla because it effectively required the mitigation to provide a “rationale” for the crime before it could carry weight. In her view, those Supreme Court decisions hold that mitigation can reduce moral culpability even when it does not explain the crime. She would therefore bypass AEDPA deference, review prejudice de novo, and find a reasonable probability that at least one juror would have chosen life had the jury heard the full mitigation.

4) Jury Tampering (28 U.S.C. § 2254(d)(2))

The petitioner’s jury-tampering claim relied principally on testimony from the trial bailiff, who alleged that sequestered jurors had access to newspapers, television, vodka, and even contact with the prosecutor. The state court found the bailiff’s testimony unreliable—riddled with contradictions, Fifth Amendment invocations, denials of his own signed statements, misstatements about his criminal history, and lack of corroboration—and credited instead a juror’s testimony denying misconduct. Under § 2254(d)(2) and the presumption of correctness for state factual findings, the Sixth Circuit held that Hodge failed to rebut those findings by clear and convincing evidence. The claim failed.

5) Jury Bias (Procedural Default)

Because Hodge did not raise his current jury-bias theories in state court, Kentucky’s procedural rules bar them now. Absent a showing of “cause and prejudice,” federal review is foreclosed (Coleman). The court therefore rejected the bias claim as procedurally defaulted.

Impact

Clarifying the “Nexus” Debate Under AEDPA: The en banc decision cements within the Sixth Circuit that a state court’s observation that mitigation “offers virtually no rationale” for the crime does not, by itself, trigger a Lockett/Eddings violation or a Williams/Wiggins/Rompilla conflict. So long as the state court considers mitigation in the aggregate and does not categorically exclude it for lack of causal tie, AEDPA deference permits the state court to give such evidence little weight.
Elevated Bar for Strickland Prejudice on Habeas: The decision underscores that even compelling mitigation does not readily overcome a state court’s reasonable conclusion that overwhelming aggravation controls. Petitioners must show not just that mitigation was strong, but that the state court’s no-prejudice determination was objectively unreasonable.
Trial-Level Imperatives for Capital Defense: Because AEDPA locks in the state-court record (see Pinholster) and demands deference to reasonable state court weighing, capital defense counsel’s obligation to investigate and present mitigation at the original penalty phase remains paramount. Remediation on habeas will be rare.
Jury-Misconduct Claims: The decision reaffirms that credibility determinations made by state courts will almost never be overturned in habeas absent clear and convincing evidence of error. Claims built on internally inconsistent witness accounts face long odds.
Procedural Default Discipline: The ruling highlights the importance of timely presenting all jury-bias theories in state postconviction proceedings. Federal courts will not entertain new, unexhausted bias theories absent cause and prejudice.

Complex Concepts Simplified

AEDPA (28 U.S.C. § 2254): A statute that strictly limits federal habeas review of state convictions. Relief is available only if the state-court decision is contrary to, or an unreasonable application of, clearly established Supreme Court law (§ 2254(d)(1)), or based on an unreasonable determination of the facts (§ 2254(d)(2)).
“Contrary to” vs. “Unreasonable Application”:
- “Contrary to”: The state court applied a rule that contradicts Supreme Court precedent or reached a different result on materially indistinguishable facts.
- “Unreasonable application”: The state court identified the right legal rule but applied it so unreasonably that no fairminded jurist could agree.
Strickland Prejudice: In a death case, the question is whether there is a reasonable probability that at least one juror, hearing the omitted mitigation, would have concluded that the balance of aggravating and mitigating factors did not warrant death.
“Nexus requirement” (in mitigation): A legally impermissible rule that would exclude mitigation unless it causally explains the crime. The Sixth Circuit explains that Kentucky did not impose such a rule; it permissibly gave less weight to non-causally-related mitigation while still considering it.
“Fairminded disagreement”: A shorthand for AEDPA’s deference: if reasonable jurists could disagree about the state court’s result, federal habeas relief is barred.
Procedural Default: If a prisoner fails to properly present a claim in state court and state rules would now bar it, federal courts generally cannot review it unless the prisoner shows cause for the failure and prejudice from the violation.
Unreasonable Determination of Facts (§ 2254(d)(2)): State factual findings get a presumption of correctness; a petitioner must rebut them by clear and convincing evidence and show the state court’s fact-finding was objectively unreasonable in light of the record.

Conclusion

Hodge v. Plappert is a significant en banc pronouncement on the interplay between Strickland’s prejudice prong and AEDPA deference in capital sentencing. The Sixth Circuit clarifies that a state court does not run afoul of Lockett/Eddings or Williams/Wiggins/Rompilla by assigning modest weight to mitigation that lacks a causal relationship to a premeditated, profit-driven, exceptionally brutal crime—so long as the state court considers the mitigation and conducts the requisite totality-of-the-evidence balancing. The opinion also reinforces AEDPA’s rigor on both legal and factual review and underscores the procedural discipline required for jury-bias claims.

The divisions on the court—especially the dissent’s forceful reading of Williams and its insistence that Kentucky effectively applied a “nexus” filter—underscore a persistent, national tension: how to honor the constitutional imperative to consider “any aspect” of a defendant’s background as mitigation while also respecting state courts’ broad latitude to weigh that evidence against severe aggravation. For now, within the Sixth Circuit, the en banc majority’s message is unmistakable: federal habeas courts may not second-guess a state court’s mitigation weighing unless it strays beyond the bounds of fairminded disagreement. In capital litigation, that makes the quality of the mitigation record built in state court—and the clarity of the state court’s Strickland analysis—more consequential than ever.