UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ BENNY LEE HODGE, │ Petitioner - Appellant, │ > No. 17-6032 │ v. │ │ SCOTT JORDAN, Warden, │ Respondent - Appellee. │ ┘ On Petition for Panel Rehearing United States District Court for the Eastern District of Kentucky at Pikeville. No. 7:13-cv-00005—David L. Bunning, District Judge.

Argued: October 20, 2020

Decided and Filed: February 22, 2024

Before: SILER, CLAY, and WHITE, Circuit Judges.* _________________

COUNSEL ARGUED: Dennis J. Burke, DEPARTMENT OF PUBLIC ADVOCACY, LaGrange, Kentucky, for Appellant. Brett R. Nolan, OFFICE OF THE ATTORNEY GENERAL OF KENTUCKY, Frankfort, Kentucky, for Appellee. ON APPELLANT BRIEF AND ON PETITION FOR PANEL REHEARING: Dennis J. Burke, DEPARTMENT OF PUBLIC ADVOCACY, LaGrange, Kentucky, Dana C. Hansen Chavis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. ON APPELLEE BRIEF: Joseph A. Newberg, II, OFFICE OF THE ATTORNEY GENERAL OF KENTUCKY, Frankfort, Kentucky, for Appellee. ON RESPONSE TO PETITION FOR PANEL REHEARING: Matthew F. Kuhn, Brett R. Nolan, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.

*This case was the subject of a prior opinion, Hodge v. Jordan, 12 F.4th 640 (6th Cir. 2021), in which we affirmed the district court’s denial of Hodge’s petition for habeas corpus. After we filed that opinion, Judge Cook took inactive senior status, and Hodge filed a petition for rehearing. Judge Clay was assigned to replace Judge Cook on the panel, and rehearing was granted. No. 17-6032 Hodge v. Jordan Page 2

WHITE, J., delivered the superseding opinion of the court in which CLAY, J., joined. SILER, J. (pp. 13–14), delivered a separate dissenting opinion. __________________________

SUPERSEDING OPINION __________________________

HELENE N. WHITE, Circuit Judge. Benny Lee Hodge, a Kentucky death-row inmate, appeals the denial of his petition for habeas corpus. Hodge’s petition primarily concerns the ineffective assistance of his trial counsel at the sentencing phase. Because the Kentucky Supreme Court applied a standard of prejudice that is contrary to established Supreme Court precedent, counsel’s failure to present mitigation evidence was constitutionally deficient, and there is a reasonable probability that counsel’s failure affected the outcome of Hodge’s sentencing, we reverse the district court and remand with instructions to grant conditional habeas relief as to the penalty phase of Hodge’s trial. Hodge also raises jury-tampering and jury-bias claims, which we conclude are without merit.1

I.

In August 1985, Hodge and two codefendants posed as FBI agents to enter the home of Dr. Roscoe Acker. Hodge v. Commonwealth, No. 2009-SC-000791-MR, 2011 WL 3805960, at *4 (Ky. Aug. 25, 2011). Once insid