UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ BENNY LEE HODGE, │ Petitioner - Appellant, │ > No. 17-6032 │ v. │ │ LAURA PLAPPERT, Warden, │ Respondent - Appellee. │ ┘

On Petition for Rehearing En Banc. United States District Court for the Eastern District of Kentucky at Pikeville. No. 7:13-cv-00005—David L. Bunning, District Judge.

Argued En Banc: October 30, 2024

Decided and Filed: May 7, 2025 Before: SUTTON, Chief Judge; SILER, MOORE, CLAY, GRIFFIN, KETHLEDGE, WHITE, STRANCH, THAPAR, BUSH, LARSEN, NALBANDIAN, READLER, MURPHY, DAVIS, MATHIS, BLOOMEKATZ, and RITZ, Circuit Judges. _________________

COUNSEL ARGUED: Dennis J. Burke, DEPARTMENT OF PUBLIC ADVOCACY, LaGrange, Kentucky, for Appellant. Matthew F. Kuhn, OFFICE OF THE ATTORNEY GENERAL OF KENTUCKY, Frankfort, Kentucky, for Appellee. ON SUPPLEMENTAL BRIEF Dennis J. Burke, DEPARTMENT OF PUBLIC ADVOCACY, LaGrange, Kentucky, Luke P. Ihnen Chavis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Matthew F. Kuhn, Jacob M. Abrahamson, OFFICE OF THE ATTORNEY GENERAL OF KENTUCKY, Frankfort, Kentucky, for Appellee.

BUSH, J., delivered the opinion of the court in which SUTTON, C.J., and SILER, GRIFFIN, KETHLEDGE, THAPAR, LARSEN, NALBANDIAN, READLER, MURPHY, DAVIS, MATHIS, BLOOMEKATZ, and RITZ, JJ., joined. NALBANDIAN, J., (pp. 27–30), delivered a separate concurring opinion in which GRIFFIN and THAPAR, JJ., joined. BLOOMEKATZ, J. (pp. 31–33), delivered a separate concurring opinion. WHITE, J., No. 17-6032 Hodge v. Plappert Page 2

(pp. 34–47), delivered a separate opinion concurring in part and dissenting in part in which MOORE, CLAY, and STRANCH, JJ., joined.

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OPINION ________________

JOHN K. BUSH, Circuit Judge. Benny Lee Hodge sits on death row for the brutal murder of Tammy Dee Acker. In this habeas appeal, we address whether Hodge is entitled to relief based on claims of ineffective assistance of counsel, jury tampering, and jury bias that allegedly arose during his Kentucky state court trial. Hodge procedurally defaulted the latter claim, so it is not properly before us. For Hodge’s ineffective-assistance argument, we review the Kentucky Supreme Court’s postconviction decision under Strickland v. Washington, 466 U.S. 668 (1984). For his jury-tampering allegation, we review the state court’s determination of no credible evidence evincing such misconduct.

We address both claims by applying § 104 of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), codified in relevant part at 28 U.S.C. § 2254(d). That statutory provision directs us not to decide how we would have ruled on the pertinent issues in the first instance, had we sat on the state appellate bench. Rather, we apply AEDPA’s mandated deference to the state court decision to determine (1) whether the Kentucky Supreme Court’s constitutional interpretation and applicat