Whether the Sixth Circuit's ruling that a lack of Supreme Court case law dealing with a specific type of improper prosecution closing argument means no 'clearly established' law exists for purposes of 28 U.S.C. §2254(d) conflicts with the Court's precedent on clearly established law

QUESTIONS PRESENTED Yet again, the United States Court of Appeals for the Sixth Circuit has disregarded the Court’s clear directive and case law as to the meaning of clearly established law for purposes of 28 U.S.C. §2254(d). See, e.g., White v. Woodall, 572 U.S. 415 (2014); Parker v. Matthews, 567 U.S. 37 (2012). This time, it did the opposite of what it did in those cases. Rather than construe §2254(d)’s clearly established law requirement too broadly, it construed it so narrowly that it too conflicts with the Court’s precedent. Specifically, the Sixth Circuit here decided that the term “clearly established law” mandates a Supreme Court case that addresses the specific impropriety that occurred, even though the Court has held that a rule of generality, including the specific rule at issue here, constitutes clearly established law applicable to a myriad of factual circumstances. Woodall Marshall v. Rodgers, 569 U.S. 58 (2013); Panetti v. Quarterman, 551 U.S. 931 (2007); Yarborough v. Alvarado, 541 U.S. 652 (2004); Williams (Terry) v. Taylor, 529 U.S. 362 (2000). Even though there was no evidence that Halvorsen might pose a future danger, the prosecutor dedicated a significant portion of his penalty phase closing argument to urging the jury to send a message to the community by imposing a death sentence and to impose a death sentence because it could not take the risk that any other sentence could end up with Halvorsen later killing an inmate or prison guard, such as a bailiff the prosecution specifically named, while also invoking the names of notorious killers Charles Manson, James Earl Ray, and Richard Speck as individuals who could kill again since they were not under a death sentence in contrast to Gary Gilmore who had been executed only a few years earlier. Despite recognizing Darden v. Wainwright, 477 U.S. 168 (1986), as applicable law governing improper prosecution closing argument, the Sixth Circuit rejected Halvorsen’s due process claim because the Court had not expressly held that either general deterrence arguments that were not directly tied to the defendant or invoking the names of notorious killers in general, or specifically ones who could or could not kill in the future based on the sentence imposed, is improper. Thus, the Sixth Circuit held there was no applicable clearly established law, thereby requiring the claim to fail under §2254(d). Halvorsen and his codefendant were both indicted as principals for murders that occurred during an argument while the defendants and victims were doing drugs. Defense counsel wrongly believed that, under Kentucky law, Halvorsen could be convicted only as a principal, and presented only the defense that the prosecution had not proven Halvorsen was a principal but only that he had been an accomplice, and thus the jury must acquit. i Because prior counsel did not argue in state post-conviction that trial counsel performed ineffectively by basing his entire defense around a wrong understanding of the law, the claim was procedurally defaulted with no basis to excuse the default at the time Halvorsen filed his original habeas petition. Within only a few days of the Court’s decision in Martinez, which has been held to apply to cases originating in Kentucky, Halvorsen sought to amend the petition with a new claim, pursuant to Fed.R.Civ.P. Rule 15. Rule 15 requires that leave to amend be granted where the interests of justice require, a standard that carries an intent of assuring that all legal claims arising out of a set of well-plead facts be heard. The district court assumed the claim related back to another claim that had been raised in the original petition, but denied the amendment, ruling the amount of time between when the habeas petition was filed and when Halvorsen sought to amend was too long and thus automatically prejudiced the Warden. The district court so ruled even though Halvorsen sought to amend only four days after Martinez was decided and thereby provided a mean