author: Julia Smith Gibbons, Circuit Judge. ROGERS, Circuit Judge,

text:
    Dan MILLER, Suede Nights, LLC, Joseph Cirino, and Spot 82, LLC (16-3052); Julious Mosley and Mosley Motel of Cleveland, Inc. (16-3053), Plaintiffs-Appellants, v. CITY OF WICKLIFFE, OHIO, Defendant-Appellee.
    No. 16-3052/3053
    United States Court of Appeals, Sixth Circuit.
    Argued: November 29, 2016
    Decided and Filed: March 23, 2017
    Rehearing En Banc Denied May 23, 2017

      ARGUED: Jay F. Crook, SHRYOCK, CROOK & ASSOCIATES, L.L.P., Wick-liffe, Ohio, for Appellants in 16-3052 and 16-3053. John D. Latchney, O’TOOLE, MCLAUGHLIN, DOOLEY & PECORA, CO. LPA, Sheffield Village, Ohio, for Ap-pellee. ON BRIEF: Jay F. Crook, SHRYOCK, CROOK & ASSOCIATES, L.L.P., Wickliffe, Ohio, for Appellants in 16-3052 and 16-3053. Nick C. Toiriino, O’TOOLE, MCLAUGHLIN, DOOLEY & PECORA, CO. LPA, Sheffield Village, Ohio, for Appellee.
    Before: NORRIS, GIBBONS, and ROGERS, Circuit Judges.
   GIBBONS, J., delivered the opinion of the court in which NORRIS, J., joined, and ROGERS, J., joined in the result. ROGERS, J. (pp. 507-08), delivered a separate concurring opinion.

OPINION

Julia Smith Gibbons, Circuit Judge.

Plaintiffs-appellants Dan Miller, Joseph Cirino, Julious Mosley, and their respective businesses — Suede Nights, Spot 82, and the Mosley Motel — appeal the district court’s summary-judgment orders in favor of defendant Wickliffe, Ohio. Appellants allege that the city violated their constitutional rights by passing an ordinance that required a “nightclub” permit for certain establishments. The district court determined that appellants lacked standing and dismissed the case on those grounds but also reached the merits of* appellants’ claims and held that the Wiekliffe’s conduct did not offend the Constitution.

Plaintiffs here lack standing to challenge, as-applied or facially, the nightclub ordinance. Because they cannot demonstrate that Wickliffe had reached a final decision under the ordinance, or that they faced a credible threat of prosecution under it, plaintiffs cannot show a particularized and concrete injury sufficient to confer jurisdiction. Accordingly, we affirm the district court’s dismissal of plaintiffs’ claims.

I.

Julious Mosley owned the Mosley Motel in Wickliffe, Ohio (“Wickliffe” or “City”). In 2009, the motel’s lounge area was in need of a tenant. Around this same time, Dan Miller was seeking a new location for his nightclub. Miller’s original nightclub was in neighboring Willoughby, Ohio, and, during its brief time there, had drawn the ire of law enforcement due to allegations of illegal activity by some of its patrons.

Miller found a new home for his nightclub at the Mosley Motel. In May 2009, Miller and Mosley executed a five-year lease for the motel’s lounge, located at 28500 Euclid Avenue in Wickliffe. Miller then began the process of acquiring the proper permits to operate his nightclub. Miller claims that the City was initially receptive to his nightclub, but, after informing it of his plan to host a “Hip Hop night, [catering] to African American and minority clientele,” the City allegedly changed its tune. (DE 37-1, Miller Aff., Page ID 251-252.) Miller’s application for an occupancy permit was denied until he submitted revised parking plans that conformed to the City’s parking-spot-allotment requirements.

In addition to receiving the proper permits from ,the City, Miller also needed a liquor license from the State of Ohio. In June 2009, he applied for a D5A-6 liquor permit from the Ohio Division of Liquor Control. The City did not oppose Miller’s application, but several Wickliffe religious organizations did. Specifically, Telshe Yeshiva Rabbinical College, All Saints Elementary School, Sacred Heart Chapel, Borromeo Seminary, and the Center for Pastoral Leadership — all of which are located very near or adjacent to the Mosley Motel — asked for a hearing so that they could oppose Miller’s application. After hearing from these organizations, the City, while still not formally opposing the liquor permit, passed Resolution 2009-14, which expressed support for the organizations’ opposition to Miller’s application. The City believed that the sale of alcohol at 28500 Euclid Avenue would be “detrimental to and [would] substantially interfere with the morals, safety and welfare of the residents of Wickliffe” and that the location of the Mosley Motel was so situated that the issuance of a permit would create “substantial interference with the public decency, sobriety, peace, or good order” of the neighborhood. (DE 32-3, Ord. 2009-14, Page ID 195-96.)

The Ohio Division of Liquor Control conducted a hearing on Miller’s application in September 2009. Miller claims that, despite having previously waived any objection to his application, “numerous officials” appeared at the hearing, including “the Mayor, the Chief of Police, and members of the Wickliffe City Counsel [sic].” (DE 37-1, Miller Aff., Page ID 253.) Representatives from the religious organizations were also in attendance. The Liquor Control Division ultimately denied Miller’s application, citing the objections of the religious organizations and noting that it agreed that granting the application would offend the peace and good order of the neighborhood and would interfere with the operation of the religious organizations and their schools. Despite having the right to do so, Miller did not appeal this decision nor does he allege that it was reached in error.

Resolutipn 2009-14 was not the City’s only action that September. It also unanimously passed Ordinance 2009-49 (“Ordinance”), which required “nightclubs” to obtain a permit before operating. Ordinance 2009-49 defined “nightclub” as:

a place operated for a profit, which is open to the public and provides the opportunity to engage in social activities such as dancing; the enjoyment of live or prerecorded music; the serving of food and beverages, all of which are provided for a consideration that may be included in a cover charge or included in the price of the food or beverage.

(DE 32-4, Ord. 2009-49, Page ID 197.) The Ordinance divided nightclubs into “adult” and “teen” varieties, with former being open to only those twenty-one years of age and older. Adult nightclubs could operate any day of the week but had to close no later than 2:30 a.m. The Ordinance contained many other requirements that delineated the responsibilities of the nightclub and its owner, most of which were obligations to operate the nightclub in a safe and legal manner, such as requiring proper illumination, prohibiting the consumption of illegal substances and loitering, and controlling litter.

The application process was governed by specific rules that were spelled out in Section 747.09 of the Ordinance. Wiekliffe’s Director of Public Safety had to act on any application within thirty days. Additionally, the Ordinance provided that any application would be denied if “the location of the nightclub is within five hundred feet from the boundaries of a parcel of real estate having situated on it a school, church, library, public park, tavern, bar, adult cabaret, or another nightclub” or “within five hundred feet from the boundaries of any residential district.” (Id. at 200-201.) The Ordinance also prohibited the issuance of a permit if the applicant had been convicted of certain criminal offenses or if the establishment had its liquor permit revoked by the Liquor Control Division. Miller, Mosley, and their businesses never applied for a nightclub permit. .

After nearly two years’ time, Miller entered into an agreement with Joseph Ciri-no. Cirino paid Miller $40,000 for an ownership interest in a proposed billiards hall at 28500 Euclid Avenue. That business— Spot 82, LLC — initially had been granted a temporary-occupancy permit by the City, but, about two weeks after its issuance, that permit was revoked by a cease-and-desist letter. The cease-and-desist letter did not give a reason for the revocation of Spot 82’s temporary-occupancy permit, but, in his affidavit, Miller claims he later learned that the permit was revoked because Spot 82 “looked too much like a night club.” (DE 37-1, Miller Aff., Page ID 254.)

On May 17, 2012, Cirino, Miller, Mosley, and their respective business entities filed a complaint in federal court for the Northern District of Ohio. The complaint, as amended, raised eight claims: (1) a request for declaratory relief under 42 U.S.C. § 1983 due to Ordinance 2009-49’s alleged vagueness, overbreadth, and illegal retro-activity; (2) injunctive relief under § 1983 premised on the same; (3-5) three separate violations of 42 U.S.C. § 2000A for intentional racial discrimination, selective enforcement, and disparate impact; (6) a violation of 42 U.S.C. § 1983 based on equal-protection violations; (7) tortious interference with a contract; and (8) tortious interference with a business relationship. On July 30, 2013, Mosley filed another lawsuit against the City that raised the same claims as the earlier complaint but added two Takings Clause claims as well. The two cases were subsequently consolidated (at Mosley’s request), and then severed (also at his request).

The district court dismissed both cases, relying primarily on standing principles. Specifically, the district court found that plaintiffs lacked an injury in fact because none of them actually applied for a permit under the nightclub ordinance. Additionally, the court found that, if plaintiffs wished to sue the city for the passage of Ordinance 2009-49, they could not show more than a “generalized grievance,” which it claimed was insufficient to confer standing.

The district court also held that plaintiffs had a redressability problem due to the State of Ohio’s independent decision to deny Suede Nights a liquor permit. Making the practical assumption that plaintiffs could not operate their nightclub without a liquor license, the district court found that, even if the ordinance was unconstitutional, plaintiffs would still be foreclosed from opening a nightclub.

The district court also reached the merits of some of plaintiffs’ claims. It found that Ordinance 2009-49 did not implicate the First Amendment because it “regulates permits for businesses, not expression or assembly.” (DE 44, Op. & Order, Page ID 479.) Further, the district court found that the ordinance was not over-broad or void for vagueness. Finally, it dismissed the intentional tort claims against the city on statutory-immunity grounds. In a separate order, but applying all the same reasoning, it dismissed Mosley’s identical claims. Additionally, the district court found that Mosley’s Takings Clause claim was not ripe for review because he had failed to pursue the requisite administrative remedies — namely, he had not followed Ohio’s writ-of-mandamus procedure in pursuing compensation for the City’s alleged regulatory taking. All plaintiffs filed timely appeals, which have been consolidated for review.

II.

We review the district court’s grant of summary judgment de novo. Domingo v. Kowalski, 810 F.3d 403, 410 (6th Cir. 2016) (citing Green Party of Tenn. v. Hargett, 767 F.3d 533, 542 (6th Cir. 2014)). Construing the evidence in the light most favorable to the nonmovant, id. (citing Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563, 568 (6th Cir. 2013)), summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Additionally, we review a district court’s dismissal of claims for lack of standing de novo. Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 348 (6th Cir. 2007) (citing Am. Canoe Ass’n, Inc. v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536, 540 (6th Cir. 2004)).

III.

At oral argument, plaintiffs conceded that they were challenging only the facial validity of the Ordinance, but then proceeded to make as-applied arguments. Thus, it is unclear what the precise nature of their challenge is. What is clear, however, is that their appeal is limited to the constitutionality of the Ordinance and that they have waived all other claims.

As an initial matter, plaintiffs need to establish standing for their as-applied and facial challenges. For the reasons explained below, plaintiffs’ claims are non-justiciable and must be dismissed.

A.

The district court dismissed the majority of plaintiffs’ claims because it found that they had not suffered an injury in fact. Plaintiffs claim that challenging the Ordinance would have been futile and allege that this excuses their failure to apply for a permit. The district court was right: the failure to apply for a permit bars any as-applied claims plaintiffs could make regarding the constitutionality of the Ordinance.

The power of the federal courts is limited to hearing actual cases and controversies. U.S. Const. art. III, § 2, cl. 2; see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Of course, determining which disputes are “appropriately resolved through the judicial process” is no simple task. Whitmore v. Arkansas, 495 U.S. 149, 154-55, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). Constitutional standing has three elements that serve as its irreducible minimum in all cases. Lujan, 504 U.S. at 560, 112 S.Ct. 2130. “First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual and imminent, not conjectural or hypothetical.” Id. (internal citations and quotations omitted) (citing Allen v. Wright, 468 U.S. 737, 756, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) and Whitmore, 495 U.S. at 155, 110 S.Ct. 1717). Second, a plaintiff must demonstrate causation — ie., that her injury is “fairly traceable to the challenged action of the defendant, and not the result of independent action of some third party not before the court.” Id. (internal alterations and quotations omitted) (citing Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)). Lastly, the plaintiff must prove that it is likely, rather than merely speculative, that a favorable decision could redress the injury. Id. at 561, 112 S.Ct. 2130.

Here, Wickliffe argued, and the district court found, that plaintiffs lacked constitutional standing to challenge the Ordinance because they never applied for a permit. The district court held that, because the City never denied, or even reviewed, a nightclub application from any of the plaintiffs, they cannot demonstrate an injury in fact. Additionally, the district court found that plaintiffs had a redressability problem because, even if they were awarded a nightclub permit, the State of Ohio’s independent denial of their liquor permit effectively prohibited them from opening a nightclub at 28500 Euclid Avenue. The district court invoked prudential-standing requirements as well and found that plaintiffs lacked standing because they could not show more than a “generalized grievance regarding Ordinance 2009-49.” (DE 44, Op. & Order, Page ID 476-477.)

Plaintiffs’ as-applied constitutional claims regarding Ordinance 2009-49 are nonjusticiable. First, as the district court found, they lack an injury in fact because the Ordinance has not yet been applied to them. Their injury is conjectural and hypothetical, rather than concrete and particularized. Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Any decision from this court regarding how the nightclub statute could or would apply to plaintiffs’ proposal would be advisory. Fialka-Feldman v. Oakland Univ. Bd. of Trs., 639 F.3d 711, 715 (6th Cir. 2011) (“The ‘case or controversy’ requirement prohibits all advisory opinions, not just some advisory opinions and not just advisory opinions that hold little interest to the parties or the public.”). Second, any as-applied challenge to the Ordinance is not ripe. Ripeness is related to standing, and shares a foundation in Article Ill’s case-and-controversy requirement. Bigelow v. Mich. Dep’t of Nat. Res., 970 F.2d 154, 157 (6th Cir. 1992). The question here is whether there is a final decision by a state actor for review. Bannum v. City of Louisville, 958 F.2d 1354, 1362 (6th Cir. 1992).

Plaintiffs invoke the futility doctrine and argue that the City’s decision was sufficiently final to excuse their failure to apply for a nightclub permit. In essence, they argue that it is clear — from the history of the Ordinance’s passage and from the language of the law itself — that Wickliffe would have denied their application to open a nightclub, and thus, it would have been pointless for them to waste the time doing so.

The doctrine of futility does not save plaintiffs’ claims because they have failed to demonstrate that the City’s decision was sufficiently final to constitute an injury in fact. Although there is no requirement that a plaintiff exhaust administrative remedies before bringing a § 1983 action, Patsy v. Fla. Bd. of Regents, 457 U.S. 496, 507, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), plaintiffs must still answer the conceptually distinct question of whether there is a final decision for this court to review. Williamson Cty. Reg’l Planning Comm’m v. Hamilton Bank of Johnson City, 473 U.S. 172, 192, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) (citing FTC v. Standard Oil Co., 449 U.S. 232, 243, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980)). Exhaustion and finality certainly are kindred concepts, but the “finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury,” while the exhaustion requirement “generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate.” Id. at 193, 105 S.Ct. 3108. Thus, exhaustion presupposes a decision has been made, whereas finality simply searches for a decision to review.

There is no final decision here. The district court found that, while “[plaintiffs make some showing that Wickliffe would likely have denied Plaintiffs’ application for a nightclub permit, they do not make a strong showing.” (DE 44, Op. & Order, Page ID 476.) We agree, and our precedent supports the district court’s decision to dismiss this matter. For example, in Bannum v. City of Louisville, we found that, despite not applying for a conditional-use permit from the City of Louisville, the plaintiffs had sufficiently demonstrated the city’s “adamant opposition” to plaintiffs’ proposal, and it was not unreasonable to find that “further proceedings would not have been productive.” 958 F.2d at 1363. Relying on the Ninth Circuit’s formulation of the “futility exception” to the finality requirement, we found that, where plaintiffs can demonstrate that a decisionmaker has reached a final determination and further applications would be “idle and futile act[s],” the finality requirement is satisfied. Id. The Bannum court noted, however, that “[f]or the exception to be available to [plaintiffs], [they] must have submitted at least one meaningful application.” Id. (quoting Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1454-55 (9th Cir. 1987)). We found that Bannum’s affidavits to the city in which he requested a variance, and to which the city responded by informing him that a “nonconforming use variance was not forthcoming,” was sufficient, when coupled with the city’s open opposition, to satisfy the futility exception. Id.

G & V Lounge v. Michigan Liquor Control Commission is also instructive. 23 F.3d 1071 (6th Cir. 1994). In that case, we found that plaintiffs, despite not yet having taken any action or having any action taken against them, had standing to challenge a Michigan liquor-control regulation. That regulation provided that “no establishment with a liquor license shall permit dancing or other forms of entertainment without a permit, and that no entertainment permit shall be issued without the approval of the chief local law enforcement officer with jurisdiction over the establishment, the local legislative body, and the commission itself.” Id. at 1073. The regulation provided no standards governing local approval of a requested permit. Id. G & Y Lounge wanted to offer topless dancing, but the city attorney informed it that any attempt to do so would result in the city’s recommendation that the lounge’s liquor license be revoked and could also result in the city’s revoking or not renewing its entertainment permit. Id. at 1073-74. Noting that G & V’s licenses had not been revoked or non-renewed, the court held that “[i]t is well-established that ‘when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license.’ ” Id. at 1075 (quoting City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 755, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988)). In G & V, the city made clear that any adult entertainment at the lounge would result in the revocation of its licenses, making the harm imminent. Id. Lastly, the chilling effect that the city’s threat had on G & V was a distinct and palpable injury. Id. at 1076. This court found that each of these injuries was directly traceable to the actions of the city and could be redressed by a favorable decision. Id.

The case before us is distinguishable from Bannum and G & V. Here, Wickliffe never indicated that it would not permit plaintiffs to open their nightclub. True, it denied their initial occupancy application because it alleged that the nightclub’s parking was insufficient under the relevant ordinance, but it offered them an alternative route: submit a conditional-use permit with revised parking plans. Plaintiffs never did so. Moreover, as the district court found, it is far from clear that the nightclub ordinance would have necessarily prohibited plaintiffs from opening a nightclub. Had plaintiffs actually applied for such a permit, we and the district court would have a decision, and a record, upon which to make a determination. But, again, plaintiffs never sought the required permit.

Additionally, while the record indicates that some city-council members were opposed to Suede Nights receiving a liquor permit and that the city council passed a resolution indicating its support for those Wickliffe citizens who opposed the issuance of such a permit, the City did not formally object. Wickliffe officials noted that their lack of formal objection was because the City concluded that it did not have legal justification to do so. These statements, far from indicating a local government that will block a company’s request regardless of the law, instead show one that knows and respects the limitations on its authority. And, while the city council created the Ordinance, it was not tasked with rendering decisions on applications; instead, that obligation fell to the Wickliffe Director of Public Safety. Thus, under its very detailed ordinance, the City lacked discretion to deny plaintiffs’ application, and the comments of the city-council members are not probative of the deci-sionmaker’s closed mind. This fact further distinguishes this case from Bannum and G & V, where the decisionmakers had demonstrated “adamant opposition” to those plaintiffs’ proposals, and had unbridled discretion in rendering decisions. Bannum, 958 F.2d at 1363; G & V Lounge, 23 F.3d at 1075-76. Plaintiffs have not demonstrated that there is final decision for this court to review. Accordingly, standing and ripeness doctrines bar plaintiffs’ as-applied claims to the Ordinance and its passage.

B.

Plaintiffs also lack standing to challenge the facial validity of the ordinance. There may be very little difference to the standing requirements for as-applied and facial challenges, other than the former being the easier of the two. See Winter v. Wolnitzek, 834 F.3d 681, 687 (6th Cir. 2016) (“[I]f there is any' difference between the standing requirements for as-applied and facial challenges, it is because raising a narrow as-applied challenge is easier ... than raising a facial challenge.”). Facial challenges, like as-applied ones, require ripeness as well as standing. Id. In the pre-enforcement First Amendment context, “[t]he line between Article III standing and ripeness ... has evaporated.” Id. (citing Driehaus, 134 S.Ct. at 2346-47). Standing and ripeness both originate from Article Ill’s case-or-controversy requirement, and require us to answer the same question: have plaintiffs established a credible threat of enforcement? Plaintiffs here have not.

“A plaintiff meets the injury-in-fact requirement — and the case is ripe— when the threat of enforcement of that law is ‘sufficiently imminent.’ ” Platt v. Bd. of Comm’rs on Grievances & Discipline of Ohio Supreme Court, 769 F.3d 447, 451 (6th Cir. 2014) (citing Driehaus, 134 S.Ct. at 2342). The threat of enforcement is sufficiently imminent when “(1) the plaintiff alleges ‘an intention to engage in a course of conduct’ implicating the Constitution and (2) the threat of enforcement of the challenged law against the plaintiff is ‘credible.’ ” Id. at 451-52 (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979)). Even assuming that plaintiffs’ facial challenges to the vagueness and overbreadth of the Ordinance implicate constitutionally protected conduct, they have failed to show that the threat of enforcement against them was credible.

A threat is credible, in this context, if a person must censor herself to avoid violating the law in question. Id. at 452 (citing Carey v. Wolnitzek, 614 F.3d 189, 196 (6th Cir. 2010)). Here, plaintiffs were not required to censor themselves, at this point, to avoid violating the Ordinance. Instead, plaintiffs needed only to apply for a license to discover whether they could open their businesses. This not only would have solved their facial-standing problem, but would have given them standing for a bevy of as-applied challenges as well. And merely applying for a license, as opposed to engaging in some allegedly protected conduct and fearfully waiting for potential prosecution, does not carry the same risk that is normally seen in facial-challenge cases. In fact, here, it carried no risk. The City’s denial of plaintiffs’ license would have acted as a de facto “warning letter” that plaintiffs’ conduct was potentially subject to prosecution. See Winter, 834 F.3d at 687-88 (finding standing in the pre-enforcement First Amendment context where plaintiffs were told by the state supreme court that certain regulations proscribed their speech and governing body had told them that it planned to enforce the regulations against them). But that is not the case (to the extent one is present here at all) that we have before us.

The City never indicated that it would deny plaintiffs’ nightclub permit or that it would enforce the Ordinance against plaintiffs. And any attempt by plaintiffs at seeking approval for their businesses was unrelated to the Ordinance in question. Miller and Mosley’s occupancy permit was denied because the Mosley Motel lacked sufficient parking. Likewise, Cirino and Spot 82 were given a temporary-occupancy permit that was subsequently revoked, but this action was unrelated to the Ordinance. Because plaintiffs challenge only the validity of the Ordinance, these administrative actions, unrelated to the Ordinance in question, do not support a credible threat of enforcement under it.

All plaintiffs here can say is that, had they done this or that, the City might have taken some action against them. This is the exact sort of hypothetical and speculative dispute that Article III proscribes from federal-court dockets. Ultimately, plaintiffs’ standing impediments, whether to their as-applied or to their facial challenges, stem from the same problem: they have failed to demonstrate that the City made a decision sufficiently final, or a threat sufficiently credible, to establish a concrete and particularized injury.

IV.

For the reasons stated above, we affirm the district court’s dismissal of plaintiffs’ claims.

CONCURRENCE

ROGERS, Circuit Judge,

concurring.

I concur in the result but disagree with the majority’s reasoning. Plaintiffs’ request for pre-enforcement judicial review of Ordinance 2009-49 is not ripe — not in the constitutional sense of the doctrine, but based on the court’s equitable discretion to decline review.

Plaintiffs seek to challenge Wickliffe’s Ordinance 2009-49, which requires a business to obtain a permit before operating a nightclub, without first applying for the required permit. Plaintiffs thus ask the court to construe and judge the law before it has been applied — the classic case of pre-enforcement review. In particular, plaintiffs request declaratory and injunc-tive relief, which are equitable remedies. Federal courts have discretion over whether to grant such equitable remedies and may decline to exercise judicial review if a controversy is not ready to be decided. Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). When a challenged rule of law is final, but the relevant authority has not yet enforced the law, courts often decline review because the otherwise vague or ambiguous rule may be limited or become clear through application. Id. The decision to decline judicial review in such cases is a matter of equitable discretion, not based on Article Ill’s case-or-controversy requirement.

We should not anticipate the Supreme Court overruling such a significant line of precedent as the equitable ripeness doctrine without a clear dictate from the Court. It is true that the Court appeared hesitant to reaffirm the doctrine in Susan B. Anthony List v. Driehaus, — U.S. —, 134 S.Ct. 2334, 2347, 189 L.Ed.2d 246 (2014), reasoning: “To the extent respondents would have us deem petitioners’ claims nonjusticiable ‘on grounds that are “prudential,” rather than constitutional,’ ‘[t]hat request is in some tension with our recent reaffirmation of the principle that a federal court’s obligation to hear and decide cases within its jurisdiction is virtually unflagging.’ ” (alteration in original) (internal quotation marks omitted) (quoting Lexmark Int’l, Inc. v. Static Control Components, Inc., — U.S. —, 134 S.Ct. 1377, 1386, 188 L.Ed.2d 392 (2014)). In the same breath, however, the Court declined to decide the doctrine’s “continuing vitality.” Id. The Supreme Court has advised lower courts to follow its precedent until the Court expressly overrules itself — “leaving to [the Supreme Court] the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989); see Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). Thus, until the Court declares otherwise in a clear voice, we should continue to apply the equitable ripeness doctrine when, as now, it is relevant.

The Supreme Court has summarized the proper inquiry as follows:

In deciding whether an agency’s decision is, or is not, ripe for judicial review, the Court has examined both the “fitness of the issues for judicial decision” and the “hardship to the parties of withholding court consideration.” [Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507.] To do so in this case, we must consider: (1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented.

Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998).

First, the plaintiffs will suffer minimal hardship when judicial review is denied at this stage. Unlike cases where denying pre-enforcement review would force parties to immediately take action to avoid violating the law, Ordinance 2009-49 has no immediate implications for plaintiffs until they apply for and are denied a permit. Plaintiffs were not operating a nightclub before the City passed the law, so contrary to their assertions, they do not face immediate criminal prosecution without judicial review. Second, the City should not have to defend the content of its ordinance without applying it to a particular applicant. Because plaintiffs never applied for a permit, it is impossible to know whether the City would deny one. Finally, the record is not full enough for effective judicial review; indeed, there is no indication about how the City will apply the Ordinance. Although plaintiffs assert that applying for a permit would be futile, given the Ordinance’s strict location limitations, see Wickliffe, Ohio, Code § 747.09 (2017), there is no record evidence to prove that plaintiffs’ proposed nightclub location violates those restrictions.

Plaintiffs’ claims are accordingly not jus-ticiable because they are not ripe, and there is no need to reach Article III standing. Ruling on Article III standing grounds unnecessarily limits the power of Congress. Where there is no standing, Congress cannot permit judicial review even if Congress would weigh the ripeness factors entirely differently. In this case that means that Congress could not permit judicial review at a pre-enforcement stage like that presented here, even at the behest of the very people that the Ordinance appears to be regulating. We should not so limit the power of Congress, when the Supreme Court has provided a fully formed and nuanced equitable ripeness doctrine for us to employ, a doctrine that balances (subject to congressional correction) the interests of regulated parties in avoiding pre-enforcement harms with the interests of administrative bodies in executing public policy and the interests of courts in avoiding abstract disputes.

      . The district court found that plaintiffs lacked standing on redressability grounds, as well as due to the absence of an injury in fact. The district court relied on the State of Ohio’s independent decision to deny Suede Nights’ liquor permit application in determining that, even if the Ordinance was unconstitutional, Miller still could not have opened his nightclub. This assumes that one must serve liquor in order to run a nightclub, a presupposition that is as reasonable as it is erroneous. The district court’s reliance on the denial of the liquor permit in finding a lack of redressability was in error, but it does not affect the outcome here.

      . Although the concurrence recommends disposing of this case on prudential-ripeness grounds, we need not reach that issue here. Given the Supreme Court’s questioning of the continued vitality of the prudential-standing doctrine, Lexmark Int’l, Inc. v. Static Control Components, Inc., - U.S. -, 134 S.Ct. 1377, 1386, 188 L.Ed.2d 392 (2014); Susan B. Anthony List v. Driehaus, - U.S. -, 134 S.Ct. 2334, 2346-47, 189 L.Ed.2d 246 (2014), and the doubt that has been cast upon it by our own decisions, Kiser v. Reitz, 765 F.3d 601, 606-07 (6th Cir. 2014), we are hesitant to ground our decision in prudential-standing principles. The concurrence is correct that Lexmark, Driehaus, and Kiser do not affirmatively state that the prudential-standing doctrine is dead, and we cannot predict its future. But, in view of the question, we choose to rely on a more solid foundation for deciding the case — namely, constitutional-standing principles.

      . In some ways, G & V simply converted the plaintiff's attempt to utilize the futility exception into a facial challenge. Whether we found standing there based on a sufficiently final decision or on a credible threat of enforcement, the case demonstrates the type of government action sufficient to create an injury in fact.


source: Caselaw Access Project

author: GRIFFIN, Circuit Judge. MERRITT, Circuit Judge,

license: Public Domain

text:
    Roger L. WHEELER, Petitioner-Appellant, v. Thomas L. SIMPSON, Warden, Respondent-Appellee.
    No. 11-5707
    United States Court of Appeals, Sixth Circuit.
    Argued: October 1, 2014
    Decided and Filed: March 28, 2017
    Rehearing Denied April 12, 2017

      ARGUED: Joseph T. Flood, SHELDON, FLOOD & HAYWOOD, PLC, Fair-fax, Virginia, for Appellant. David W. Barr, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee. ON BRIEF: Joseph T. Flood, SHELDON, FLOOD & HAYWOOD, PLC, Fairfax, Virginia, David M. Barron, KENTUCKY DEPARTMENT OF PUBLIC ADVOCACY, Frankfort, Kentucky, for Appellant. David W. Barr, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.
    Before: MERRITT, GRIFFIN, and WHITE, Circuit Judges.
   GRIFFIN, J., delivered the opinion of the court in which MERRITT and WHITE, JJ., joined. MERRITT, J. (pg. 521), delivered a separate concurring opinion.

OPINION

GRIFFIN, Circuit Judge.

This habeas case returns to us on remand from the Supreme Court. Previously, this court granted habeas relief to petitioner Roger Wheeler based on the state trial court’s decision to remove a juror who could not give sufficient assurance of neutrality or impartiality in considering whether to impose the death penalty. See Wheeler v. Simpson, 779 F.3d 366, 374-75 (6th Cir.), rev’d sub nom. White v. Wheeler, — U.S. —, 136 S.Ct. 456, 193 L.Ed.2d 384 (2015) (per curiam). Our majority opinion also addressed and rejected petitioner’s other claims relating to the guilt phase of the state trial proceedings, but left unresolved other claims relating to the penalty phase. See id. at 375. Both Wheeler and respondent Thomas Simpson (“Warden”) filed petitions for certiorari. The Supreme Court denied Wheeler’s petition, Wheeler v. White, — U.S. —, 136 S.Ct. 688, 193 L.Ed.2d 519 (2015), but granted the Warden’s, reversing our decision to issue the writ and remanding for further proceedings, White, 136 S.Ct. at 462. We now address petitioner’s remaining claims certified for appeal. After doing so, we affirm the judgment of the district court.

I.

In 2001, a jury convicted petitioner of two counts of intentional murder. Petitioner’s victims were Nigel Malone and his girlfriend, Nairobi Warfield. The jury recommended a death sentence after finding one aggravating circumstance: that petitioner’s “act ... of killing [was] intentional and resulted in multiple deaths[.]” Ky. Rev. Stat. § 532.025(2)(a)(6). The trial court followed the jury’s recommendation and imposed a death sentence for each conviction. On direct appeal, the Kentucky Supreme Court made the following findings of fact:

On October 2,1997, Louisville police discovered the bodies of [Malone and War-field] in the apartment the victims shared. The male victim was found in a hallway near the bathroom. He had suffered nine stab wounds. Two stab wounds to the chest were considered the fatal wounds by the medical examiner. She described the crime scene as having blood spatters on the floor, walls, furniture and appliances. The medical examiner believed that the main struggle occurred in the kitchen and progressed to the hallway where the body of the male victim was found.
The female victim died as a result of manual strangulation. The medical examiner testified that she believed the struggle between the female and her assailant occurred in the bedroom where she was found. The female victim had multiple abrasions on the left side of her neck and lacerations with a bruise on her mouth and several bruises on her lips. Her body was found in a seated position, leaning against a bedroom wall. She was covered with a blanket or quilt and a [pair of] scissors was protruding from her neck. The medical testimony determined that she had been stabbed with the scissors after she was already dead. During the autopsy, the medical examiner discovered that the female victim was pregnant.
There was blood on the floors and walls in nearly every room in the apartment. Numerous blood samples were also collected at the scene and were subject to laboratory testing. No fingerprints were found on the scissors.
Wheeler denied killing the two victims but he changed his story on several occasions. Originally, he denied ever being inside of the apartment on the night the murders occurred but then later admitted being in the apartment on that night. He claimed that Nigel Malone was already stabbed, but that he did not see Nairobi Warfield. He also asserts that the assailant was already inside the apartment and he and that person fought which was why he was wounded.

Wheeler v. Commonwealth, 121 S.W.3d 173, 178 (Ky. 2003). The court affirmed petitioner’s convictions and sentences. Id. at 189. Following his direct appeal, petitioner sought post-conviction relief in the state courts, which was denied. See Wheeler v. Commonwealth, No. 2006-SC-000901-MR, 2008 WL 5051579, at *11 (Ky. Nov. 26, 2008) (unpublished).

Wheeler filed the instant petition for a writ of habeas corpus in 2009. A magistrate judge recommended granting the Warden’s motion for summary judgment and denying the habeas corpus petition. The district court agreed with the magistrate judge and denied the petition. The district court granted a COA as to ten claims, and we later expanded the COA to include two additional claims.

Having previously decided petitioner’s guilt-phase claims, and the Supreme Court having denied his certiorari petition, our decision regarding those claims is law-of-the-case. See, e.g., Bowles v. Russell, 432 F.3d 668, 676 (6th Cir. 2005), aff'd, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (“[0]nce an appellate court either expressly or by necessary implication decides an issue, the decision will be binding upon all subsequent proceedings in the same-case.”) (citation omitted). It also goes without saying that we cannot revisit petitioner’s juror-bias claim, the Supreme Court having reversed our holding as to that claim. We turn then to petitioner’s remaining penalty-phase claims.

II.

The Antiterrorism and Effective Death Penalty Act of 1996 limits federal habeas review of state court proceedings and provides that an application for a writ of habeas corpus shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

A state court adjudication is “contrary to” Supreme Court precedent under § 2254(d)(1) “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 confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at [an opposite result].” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the “unreasonable application” clause of § 2254(d)(1), habeas relief is available if “the state court identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s case[.]” Harris v. Haeberlin, 526 F.3d 903, 909 (6th Cir. 2008) (citations omitted). “In order for a federal court to find a state court’s application of [Supreme Court] precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or erroneous,” but rather “must have been ‘objectively unreasonable.’ ” Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citations omitted). That means

even clear error will not suffice. Rather, as a condition for obtaining habeas corpus from a federal court, a state prisoner 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.

White v. Woodall, — U.S. —, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698 (2014) (emphasis added, citations, quotation marks, and alterations omitted). In short, the standard for obtaining federal habeas relief is “difficult to meet.” Id. (citation omitted).

On appeal, we review “de novo a district court’s legal conclusions and mixed questions of law and fact and review[ ] its factual findings for clear error.” Moore v. Mitchell, 708 F.3d 760, 774 (6th Cir. 2013).

III.

Petitioner first argues that the trial court improperly admitted evidence as to the availability of prison furloughs in the future. Specifically, petitioner asserts that, through this evidence, the jury was led to believe that “unless [it] imposed a sentence of death, [petitioner] might one day be released into the community on furloughs,” which petitioner argues was “irrelevant speculation that unfairly tilted the evidence in favor of a death sentence in violation of [his] constitutional right to a reliable capital sentencing determination.”

This claim is procedurally defaulted.

A habeas petitioner procedurally defaults a claim if: (1) the petitioner fails to comply with a state procedural rule; (2) the state courts enforce the rule; (3) the state procedural rule is an adequate and independent state ground for denying review of a federal constitutional claim; and (4) the petitioner cannot show cause and prejudice excusing the default.

Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010) (citation omitted).

Petitioner acknowledges that he failed to raise this claim on direct appeal, asserting it for the first time in his state post-conviction proceeding. Thus, petitioner “fail[ed] to comply with [Kentucky’s] procedural rule[,]” id. namely that a post-conviction proceeding is not the place for a “convicted defendant to retry issues which could and should have been raised in the original proceeding, nor those that were raised in the trial court and upon an appeal considered by [the Kentucky Supreme Court].” Thacker v. Commonwealth, 476 S.W.2d 838, 839 (Ky. 1972). Consistent with this rule, the Kentucky Supreme Court declined to review the merits of this claim in petitioner’s post-conviction appeal. Wheeler, 2008 WL 5051579, at *9 (“If Appellant wanted to challenge the [furlough] evidence presented at trial, he should have done so in his direct appeal, not by means of a [post-conviction collateral proceeding].”). This is an independent and adequate state ground for denying review. See Lucas v. O’Dea, 179 F.3d 412, 418 (6th Cir. 1999).

Nor has petitioner demonstrated cause and prejudice to excuse this default. In the district court, he asserted that his direct appeal counsel provided ineffective assistance in failing to raise this issue, and that this ineffective assistance amounted to cause and prejudice, but he does not do so in this court. Petitioner has therefore abandoned any argument regarding cause and prejudice. See Post v. Bradshaw, 621 F.3d 406, 427 (6th Cir. 2010). In this court, he argues that the claim should not be regarded as defaulted because the state court addressed the merits of the issue in addressing his post-conviction ineffeetive-assistance-of-trial-counsel claim. However, assuming we accept this argument, and assuming that the Kentucky Supreme Court’s discussion can be read as a determination that the trial court properly admitted the evidence, Wheeler still has not shown that the admission of the evidence rendered the sentencing process uncertain and unreliable in violation of the Eighth Amendment. His reliance on Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) is misplaced.

IV.

Petitioner raises another claim related to evidence of furloughs. Specifically, he claims that his trial counsel was ineffective for introducing testimony that he had received furloughs during his previous incarceration. Petitioner argues that this testimony “suggested] to the jury, ... [that] the defendant could receive a furlough during which he could commit another violent crime” and “opened the door for the prosecution to utilize the furlough evidence to prejudice the jury, to play up [petitioner’s] violent criminal history and failure to learn a lesson in prison, and to let the jury know it was possible [petitioner] could receive a furlough if sentenced to less than death.” In its post-conviction decision, the Kentucky Supreme Court found trial counsel’s introduction of this evidence was a strategic attempt to show that petitioner had previously been such a model prisoner that he received two furloughs, and was not ineffective assistance of counsel. Wheeler, 2008 WL 5051579, at *10.

The general standards governing a claim of ineffective assistance of counsel are set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To demonstrate ineffective assistance of counsel, “[a] petitioner must show that counsel’s performance was deficient, and that the deficiency prejudiced the defense.” Wiggins, 539 U.S. at 521, 123 S.Ct. 2527 (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052).

In the context of a death sentence, the question of prejudice turns on “whether there is a reasonable probability that, absent the errors, the sentencer — including an appellate court, to the extent it independently reweighs the evidence — would conclude that the balance of aggravating and mitigating circumstances did not warrant death.”

Hill v. Mitchell, 400 F.3d 308, 314 (6th Cir. 2005) (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052). “When § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington v. Richter, 562 U.S. 86, 105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). We conclude that petitioner has not shown that the Kentucky Supreme Court’s conclusion that trial counsel was pursuing a reasonable strategy with regard to the furlough testimony was contrary to, or an unreasonable application of, Strickland.

At the penalty phase, petitioner’s counsel introduced a variety of evidence intended to establish that petitioner had been a model prisoner during previous incarcerations, including evidence of furloughs. For example, petitioner’s trial counsel introduced the testimony of Michael Cooper, an employee at the Luther Luckett Correctional Complex where petitioner had served a prior term of incarceration. Cooper testified that petitioner worked for him as a janitor in the Property Room and exhibited a “good work ethic” and required “very, very little supervision.” Cooper testified he was not aware of any disciplinary action ever being taken against petitioner. According to Cooper, petitioner received two furloughs while incarcerated. Cooper added that he did not know whether prisons still offered furloughs, but believed that none had been granted “for several years,” noting that such a grant was “extremely rare.”

Petitioner’s counsel also introduced the testimony of Robin Rawlings, who had recently worked as a Classification and Treatment Officer with the Department of Corrections and as a Probation and Parole Officer with the Commonwealth’s Department of Justice. Rawlings testified that, as an inmate, petitioner worked as a janitor in the administration building, which included the offices for the prison warden and the deputy warden. Rawlings indicated that she spoke with petitioner every day, and she was not aware of any complaints, conflicts, or problems from either the staff or other inmates regarding him. Rawlings also worked with petitioner within a small group setting to assist inmates with their chemical dependency issues. Prison life -is “very regulated and dictated by rules[,]” according to Rawlings, and petitioner was a “model inmate.”

Rawlings was also queried about furloughs. To that end, Rawlings testified that, based on the policy in place at the time she was employed at the prison, she was “positive” that petitioner would not be eligible for a furlough given his two murder convictions. On cross-examination, the prosecutor also asked Rawlings about furloughs:

[PROSECUTOR]: Urn, Ms. Rawlings, uh, as far as furloughs are concerned, there was a time when individuals who were convicted of murder were granted furloughs, is that correct?
ROBIN RAWLINGS: Yes, sir, that’s true.
[PROSECUTOR]: Okay, and they changed the policy at some point, right?
ROBIN RAWLINGS: Yes, they did.
[PROSECUTOR]: Okay, and you can’t, uh, tell this jury what the policy is going to be in the future, 20, 30 years? You don’t know that, do you?
ROBIN RAWLINGS: That’s true, sir.
[PROSECUTOR]: Okay, policies change?
ROBIN RAWLINGS: Yes, they do.

The record indicates that, when introducing testimony about petitioner’s prior furloughs, petitioner’s trial counsel was attempting to obtain a sentence other than death for petitioner. For example, during closing arguments, petitioner’s trial counsel stated:

We’re not saying that these people did not suffer or that their families do not continue to suffer. We are telling you that the death penalty is not your only option. If you find the mitigation, if you find any redeeming qualities, and there are some there, you should give him his life.

Testimony by Cooper and Rawlings showed that Wheeler worked well within the structured environment of prison during the time of his previous incarceration. Wheeler had already admitted to being a convicted felon during his guilt-phase testimony. At the penalty phase, the prosecution introduced evidence that petitioner pleaded guilty to ten counts of robbery on November 20, 1991, for which he was sentenced to twenty years of imprisonment, and that, later, on August 13, 1998, petitioner was convicted for illegal possession of a controlled substance (cocaine), for which he received a sentence of one year.

In the context of this record, petitioner’s counsel argued that petitioner suffered from a drug.addiction but could otherwise thrive within the structured environment of prison life:

When you think of these offenses, I would think of someone who’s been in trouble all their lives, who’s never been responsible, who’s never been stable, who could never hold a job, who could never find someone to love him or care about him. But that’s not what we found here in the case of Roger Wheeler. We have found someone who has been, at one time, responsible and capable and stable and able to work and able to contribute, and I think he can still contribute in the penitentiary.

Based on this record, we conclude that petitioner is not entitled to relief on his ineffective-assistance-of-trial-counsel claim. A petitioner has a constitutional right to present testimony during the penalty phase about his good behavior while incarcerated. See Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). That is what petitioner’s trial counsel did. The furlough evidence took two forms: the model-prisoner mitigation testimony (e.g., Cooper’s direct examination) and the furloughs-for-murderers testimony (e.g., Rawlings’ cross-examination). Although the Kentucky Supreme Court cited the more positive furlough testimony as one of the reasons for affirming the admissibility of Rawlings’ negative testimony, that does not negate the fact that the furloughs showed the trust petitioner had earned with prison officials, and that trial counsel had a reasonable strategy for introducing it. In Campbell v. Bradshaw, 674 F.3d 578, 588 (6th Cir. 2012), this court concluded that trial counsel was not ineffective for introducing the petitioner’s entire incarceration record (including bad conduct while in custody) during the penalty phase of trial because it was “part of a strategic effort to be candid with the jury about Campbell’s past in an effort to gain credibility and, ultimately, obtain a life sentence for Campbell.” No prejudice resulted in that case because a mental health expert addressed the same information and the jury heard much of the negative information from other sources. Id. at 589. The same occurred here, and thus, the same result is warranted. Notwithstanding the furlough testimony, the jury was aware that petitioner had served only a fraction of his twenty-year sentence from his prior convictions.

V.

Petitioner raises another ineffective assistance of counsel claim related to the furlough testimony. Specifically, petitioner argues that his counsel was constitutionally ineffective for failing to object when the prosecutor cross-examined Rawl-ings about the potential availability of future furloughs and when the prosecutor raised the furlough issue in closing arguments. We disagree.

Initially, as for his claim regarding his counsel’s failure to object at oral argument, this claim is procedurally defaulted. Petitioner did not raise this claim in state court, and consequently the Kentucky Supreme Court’s decision was silent on the issue. See Wheeler, 2008 WL 5051579. Under Kentucky’s rules of criminal procedure, petitioner had three years “after the judgment [became] final” to raise this issue. Roach v. Commonwealth, 384 S.W.3d 131, 135 (Ky. 2012) (explaining Ky. R. Cr. 11.42(10)). That time has now passed. Accordingly, petitioner has procedurally defaulted this claim. See Lovins v. Parker, 712 F.3d 283, 295 (6th Cir. 2013) (“[A] claim is procedurally defaulted where the petitioner failed to exhaust state court remedies, and the remedies are no longer available at the time the federal petition is filed because of a state procedural rule.”).

Nor is habeas relief appropriate on petitioner’s claim regarding his counsel’s failure to object during Rawlings’ cross-examination. This claim is not procedurally defaulted because petitioner raised it in his state post-conviction relief proceedings. However, petitioner cannot show deficient performance or prejudice arising from his trial counsel’s failure to object to the prosecution’s cross-examination of Rawlings. The Kentucky Supreme Court rejected the claim, observing that the information contained within Rawlings’ testimony was accurate and not misleading, and trial counsel was accordingly not ineffective for failing to object to it. Wheeler, 2008 WL 5051579, at *10. The court further found that because petitioner introduced the furlough evidence in mitigation, the prosecutor was allowed to challenge it. Id. Petitioner’s concern about the speculative nature of Rawlings’ testimony is also unavailing. In California v. Ramos, 463 U.S. 992, 1004, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), the Supreme Court rejected a similar argument — that a jury should not be instructed that a governor has the power to commute a sentence of life without parole as speculative and misleading— because the instruction in question “gives the jury accurate information of which both the defendant and his counsel are aware, and it does not preclude the defendant from offering any evidence or argument regarding the Governor’s power to commute a life sentence.” (footnote omitted). The same is true here.

VI.

Petitioner also challenges the penalty-phase jury instructions, alleging that they violated Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), by improperly instructing jurors that they were required to be unanimous regarding the presence of mitigating factors. This issue was raised on direct appeal, and the Kentucky Supreme Court found no constitutional error. Wheeler, 121 S.W.3d at 188-89.

“The Constitution forbids imposition of the death penalty if the sentencing judge or jury is ‘precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.’ ” Henness v. Bagley, 644 F.3d 308, 328 (6th Cir. 2011) (quoting Smith v. Spisak, 558 U.S. 139, 144, 130 S.Ct. 676, 175 L.Ed.2d 595 (2010)). “A challenge to a jury instruction is not to be viewed in ‘artificial isolation,’ but rather must be considered within the context of the overall instructions and trial record as a whole.” Hanna v. Ishee, 694 F.3d 596, 620-21 (6th Cir. 2012) (quoting Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)). “To warrant habeas relief, ‘jury instructions must not only have been erroneous, but also, taken as a whole, so infirm that they rendered the entire trial fundamentally unfair. The burden is even greater than that required to demonstrate plain error on appeal.’ ” Buell v. Mitchell, 274 F.3d 337, 355 (6th Cir. 2001) (quoting Scott v. Mitchell, 209 F.3d 854, 882 (6th Cir. 2000)).

Petitioner’s claim lacks merit. Essentially, petitioner’s argument is that because the trial court instructed the jurors that their verdict had to be unanimous, but was silent in instructing them about unanimity as applied to mitigating factors, the jurors must have inferred that their mitigating-factor determinations must also be unanimous. However, “failing to expressly state that mitigating factors need not be unanimously found does not improperly imply that mitigating factors must be unanimously found.” Williams v. Anderson, 460 F.3d 789, 808 n.5 (6th Cir. 2006). Here, the trial court used the word “unanimous” only once, to explain that the verdict must be so: “The verdict of the jury must be in writing, must be unanimous, and must be signed by one of you as Foreperson.” The verdict form required only that the jury find an aggravating circumstance to recommend the death sentence. Requiring a unanimous verdict as to the sentence is not unconstitutional. See Moore, 708 F.3d at 794. Accordingly, although the Kentucky Supreme Court’s decision did not refer to Mills, its finding of no constitutional error was not contrary to, nor would it have been an unreasonable application of, Mills. See Slagle v. Bagley, 457 F.3d 501, 513-14 (6th Cir. 2006) (citation omitted) (holding that a state court in its decision need not cite or be aware of relevant Supreme Court cases so long as its reasoning and result are consistent with them).

VII.

Next, petitioner claims that several statements by the prosecutor during the penalty phase amounted to misconduct. Specifically, petitioner claims that the prosecutor made constitutionally impermissible statements when referring to petitioner’s evidence of his struggles with substance abuse as “excuses” and when allegedly offering his personal opinion about the case and petitioner’s decision to present mitigation testimony from his thirteen-year-old son. He alleges that these statements denied him a fundamentally fair trial in violation of his constitutional due process rights. We disagree.

A petitioner faces a high bar when bringing claims of prosecutorial misconduct. “For the prosecutor’s misconduct to violate the defendant’s due process rights, it ‘is not enough that the prosecutor’s remarks were undesirable or even universally condemned’; instead those comments must ‘so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process.’” Beuke v. Houk, 537 F.3d 618, 646 (6th Cir. 2008) (quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)). Indeed, “[t]he prosecution ... has ‘wide latitude’ during closing argument to respond to the defense’s strategies, evidence and arguments.” Bedford v. Collins, 567 F.3d 225, 233 (6th Cir. 2009) (quoting United States v. Henry, 545 F.3d 367, 377 (6th Cir. 2008)).

Petitioner is not entitled to relief on these claims. The wide latitude afforded to prosecutors was properly exercised here. The prosecution did not tell the jury not to consider Wheeler’s mitigation testimony, but rather questioned the weight to be given to it. To the extent that either comment approached the bounds of permissible closing argument, the Kentucky Supreme Court’s decision that they did not cross the line into a constitutional violation was not contrary to, or an unreasonable application of, clearly established federal law. Wheeler, 121 S.W.3d at 189; 28 U.S.C. § 2254(d)(1); Beuke, 537 F.3d at 646.

VIII.

Petitioner also claims that Kentucky’s proportionality review violates the Eighth Amendment and denied him due process. Specifically, petitioner argues that Kentucky’s proportionality review is unconstitutional because it only incorporates cases in which the death sentence was imposed and thus results in an arbitrary application of death sentences. We disagree. As this court previously explained in Bowling v. Parker:

The Supreme Court has held that the Constitution does require proportionality review, but that it only requires proportionality between the punishment and the crime, not between the punishment in this case and that exacted in other cases. See Pulley v. Harris, 465 U.S. 37, 50 [104 S.Ct. 871, 79 L.Ed.2d 29] (1984). Although “[t]here is no federal constitutional requirement that a state appellate court conduct a comparative proportionality review,” McQueen v. Scroggy, 99 F.3d 1302, 1333-34 (6th Cir. 1996), cert. denied, 521 U.S. 1130 [117 S.Ct. 2535, 138 L.Ed.2d 1035] (1997), Kentucky law does require the Kentucky Supreme Court to engage in comparative proportionality review. See Ky. Rev. Code Ann. § 532.075(3)(c). Although claimed violations of state law are generally not cognizable on habeas, the Supreme Court has left room for the argument that a state-law error could, potentially, “be sufficiently egregious to amount to a denial of equal protection or of due process of law guaranteed by the Fourteenth Amendment.” Harris, 465 U.S. at 41 [104 S.Ct. 871].

344 F.3d 487, 521 (6th Cir. 2003) (parallel citations omitted). The Bowling court expressed skepticism over whether § 532.075(3)(c) created a due process interest, noting that “the statute only explains what the Kentucky Supreme Court needs to consider — similar cases, the crime, and the defendant — it does not tell that court how to make this decision. This suggests ... that no due-process right exists” pursuant to § 532.075(3)(c). Id. at 521-22.

Petitioner attempts to distinguish this case from Bowling, arguing that it “considered only a due process argument and merely noted that proportionality review is not required in light of Harris” but did not address what petitioner calls “threshold” statutes. According to petitioner, “Gregg [v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976),] and [Zant v.] Stephens, [462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983),] require jurisdictions with ‘threshold’ statutes to consider in proportionality review cases where the death penalty was not imposed.” Petitioner defines “threshold statutes” as akin to “Georgia’s and Kentucky’s statutes that permit juries to impose death as long as an aggra-vator is found and mitigation considered.” The Supreme Court in Harris, however, saw things differently:

While emphasizing the importance of mandatory appellate review under the Georgia statute, [Stephens], 103 S.Ct. at 2742, we did not hold that without comparative proportionality review the statute would be unconstitutional. To the contrary, we relied on the jury’s finding of aggravating circumstances, not the State Supreme Court’s finding of proportionality, as rationalizing the sentence. Thus, the emphasis was on the constitutionally necessary narrowing function of statutory aggravating circumstances. Proportionality review was considered to be an additional safeguard against arbitrarily imposed death sentences, but we certainly did not hold that comparative review was constitutionally required.
There is thus no basis in our cases for holding that comparative proportionality review by an appellate court is required in every case in which the death penalty is imposed and the defendant requests it. Indeed, to so hold would effectively overrule Jurek [v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976),] and would substantially depart from the sense of Gregg and Proffitt [v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976)]. We are not persuaded that the Eighth Amendment requires us to take that course.

465 U.S. at 50-51, 104 S.Ct. 871 (footnote omitted). Because petitioner offers no Supreme Court precedent supporting his notion that the Kentucky Supreme Court should have compared his case to cases in which the death penalty was not imposed, we conclude he is not entitled to relief on this claim.

IX.

For the foregoing reasons, we conclude that petitioner is not entitled to habeas relief on any of his claims. We therefore affirm the judgment of the district court.

CONCURRENCE

MERRITT, Circuit Judge,

concurring.

I continue to believe that the Ohio acquittal-first jury instructions in this case and many others are highly confusing. It could easily lead one or more jurors to believe that they may not excuse the defendant from the death penalty and impose life imprisonment unless they first acquit the defendant when weighing aggravators and mitigators. I have set this argument out in detail several times, most recently in a majority opinion, Mitts v. Bagley, 620 F.3d 650, 656-58 (6th Cir. 2010), rev’d sub nom. Bobby v. Mitts, 563 U.S. 395, 131 S.Ct. 1762, 179 L.Ed.2d 819 (2011); but as this citation indicates, the Supreme Court did not agree. Of course, I am now bound to follow the Supreme Court holding even though I believe its result and its reasoning are wrong.