UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

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

Appeal from the 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: September 10, 2021

Before: SILER, COOK, 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 BRIEF: Dennis J. Burke, DEPARTMENT OF PUBLIC ADVOCACY, LaGrange, Kentucky, Dana C. Hansen Chavis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Joseph A. Newberg, II, OFFICE OF THE ATTORNEY GENERAL OF KENTUCKY, Frankfort, Kentucky, for Appellee.

SILER, J., delivered the opinion of the court in which COOK, J., joined. WHITE, J. (pp. 8–9), delivered a separate opinion concurring in part and dissenting in part.

* The Honorable Deborah L. Cook participated in this decision before she took inactive senior status on August 27, 2021. No. 17-6032 Hodge v. Jordan Page 2

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OPINION _________________

SILER, Circuit Judge. In 1986, a Kentucky jury convicted Benny Hodge for the murder of Tammy Acker, the attempted murder of Dr. Roscoe Acker, first-degree robbery, and first-degree burglary. After finding Hodge and codefendant Roger Dale Epperson guilty, the jury recommended death for both. Hodge filed this habeas petition, claiming his counsel provided ineffective assistance of counsel (IAC) at the sentencing phase. Bound by deference under the Antiterrorism and Effective Death Penalty Act (AEDPA), we reject that claim. Hodge also alleges he was denied a fair trial because of jury tampering and the close relationship between the prosecutor and jury foreman. Those claims are also without merit.1 We affirm the district court and deny the writ.

I

Hodge and Donald Bartley posed as FBI agents to enter the home of Dr. Acker, an Eastern Kentucky doctor. Hodge v. Commonwealth, No. 2009-SC-000791-MR, 2011 WL 3805960, at *4 (Ky. Aug. 25, 2011) (unpublished). Once inside, they tied up the elderly doctor and his daughter, Tammy. Id. The two men, joined by Epperson, ransacked the house, and forced Dr. Acker to open the safe they found. Epperson v. Commonwealth, 809 S.W.2d 835, 838 (Ky. 1990).

After collecting nearly $2 million in cash, Epperson and Bartley strangled Dr. Acker until he lost consciousness. Hodge, 2011 WL 3805960, at *4. Hodge brutally stabbed Tammy at least ten times with a large kitchen knife, killing her. Id. Together the men fled to F