Mitts v. Bagley

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0291p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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HARRY MITTS,
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Petitioner-Appellant,
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No. 05-4420
v.
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Respondent-Appellee. -
MARGARET BAGLEY, Warden,
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 03-01131—Dan A. Polster, District Judge.
Argued: March 9, 2010
Decided and Filed: September 8, 2010
Before: MERRITT, MARTIN, and SILER, Circuit Judges.

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COUNSEL
ARGUED: Jeffry F. Kelleher, JEFFRY F. KELLEHER & ASSOCIATES, Cleveland,
Ohio, for Appellant. Stephen E. Maher, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Jeffry F. Kelleher, JEFFRY
F. KELLEHER & ASSOCIATES, Cleveland, Ohio, Robert A. Dixon, Cleveland, Ohio,
for Appellant. Justin M. Lovett, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee.
MERRITT, J., delivered the opinion of the court, in which MARTIN, J., joined.
SILER, J. (pp. 20-21), delivered a separate opinion concurring in part and dissenting in
part.
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OPINION
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MERRITT, Circuit Judge. This Ohio death penalty case turns on the validity of
certain jury instructions that impose a mandatory death penalty that must be addressed

1
No. 05-4420 Mitts v. Bagley Page 2

first by the jury before consideration is given to life imprisonment. The Ohio “acquittal
first” death penalty instructions in this case are the same Ohio instructions that were
given in the recent case of Smith v. Spisak, 554 U.S. ____, 130 S. Ct. 676 (2010). In
Spisak, the Supreme Court held that in light of AEDPA the instructions did not violate
the mitigation-unanimity holding of Mills v. Maryland, 486 U.S. 367 (1988). The
essential constitutional question before us now is whether we should follow Justice
Stevens’ concurring opinion in the Spisak case, which concludes that, although the
instructions do not violate Mills, the instructions do violate the principles of Beck v.
Alabama, 447 U.S. 625 (1980). Justice Stevens, in his concurrence in Spisak, agreed
that, “Mills does not clearly establish [under AEDPA] that the instructions at issue were
unconstitutional. But, in my view, our decision in Beck v. Alabama, 447 U.S. 625
(1980), does.” 130 S. Ct. 689 (Stevens, J., concurring). No other justice reached this
Beck issue or stated an agreement or disagreement with Justice Stevens’ view. Justice
Stevens in his Spisak concurrence lays out his view that the principles of the Beck case
constitute clearly established law under AEDPA and should invalidate the same jury
instructions in Spisak that were repeated in the instant case. In light of Justice Stevens’
concurrence, we asked the parties for supplemental briefing analyzing this case in light
of Beck.

In essence, the jury instructions in the case before us require the jury to first
determine whether the aggravating elements necessary for a mandatory death penalty are
present and to impose the death penalty if the aggravating elements predominate: “If you
make such a finding then you must recommend to the court that a sentence of death be
imposed on the defendant, Harry D. Mitts, Jr.” (Emphasis added.) Only if the jury first
acquits the defendant of the death penalty may the jury consider life imprisonment or
any lesser-included offense.

After rejecting the State’s preliminary argument that Mitts has waived and
procedurally defaulted his constitutional argument against the mandatory, “acquittal
first” death penalty instructions, we consider and accept Justice Stevens’ opinion that
these death penalty instructions violate the principles announced in Beck v. Alabama,
No. 05-4420 Mitts v. Bagley Page 3

supra. We then consider two other issues raised by Mitts respecting the ineffective
assistance of counsel at the trial and guilt phases of the case and find them to be without
merit.

I.1

Mitts, an Ohio prisoner under penalty of death, appeals the district court
judgment denying his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254.
On the evening of August 14, 1994, Mitts drank bourbon until he became intoxicated
and then shot and killed Bryant, an African American man, while speaking racial
epithets. During the police shoot-out that followed, Mitts shot and killed Sergeant
Glivar and wounded Lieutenant Kaiser and Officer Mackey before being apprehended.

At trial, Mitts did not contest the evidence proving that he had killed Bryant and
Sgt. Gliver, but he instead attempted to establish that he was too intoxicated to form the
required intent to kill. After a penalty hearing, the jury recommended the death penalty
on both aggravated murder counts and terms of imprisonment for the attempted murders.
The trial court sentenced Mitts to death for the aggravated murders and to terms of
imprisonment for the attempted murders.

The Ohio Court of Appeals affirmed Mitts’ convictions and sentences in
December 1996. State v. Mitts, No. 68612, 1996 WL 732452 (Ohio Ct. App. Dec. 19,
1996). The Ohio Supreme Court affirmed the convictions and sentences in March 1998,
and it denied rehearing in June 1998. The court ruled that the trial court should have
instructed the jury to merge duplicative death penalty specifications, but it held that the
error did not influence the jury and was cured by re-weighing on appeal. Mitts, 690
N.E.2d at 530.

Mitts filed a petition for post-conviction relief in September 1996 and an
amended petition in March 1999. The trial court denied the petition in August 1999, and
the Ohio Court of Appeals affirmed that decision in September 2000. State v. Mitts, No.

1
A full account of the relevant facts can be found in State v. Mitts, 690 N.E.2d 522, 524-26 (Ohio
1998).
No. 05-4420 Mitts v. Bagley Page 4

76963, 2000 WL 1433952 (Ohio Ct. App. Sept. 28, 2000). The Ohio Supreme Court
denied further review. In April 2001, Mitts filed an application to reopen his direct
appeal, alleging ineffective assistance of appellate counsel pursuant to Rule 26(B) and
State v. Murnahan, 584 N.E.2d 1204 (Ohio 1992). The Ohio Court of Appeals denied
the motion in May 2002. State v. Mitts, No. 68612, 2002 WL 1335629 (Ohio Ct. App.
May 10, 2002). The Ohio Supreme Court affirmed that decision. State v. Mitts, 784
N.E.2d 698 (Ohio 2003).

Mitts filed his petition for a writ of habeas corpus in the district court in October
2003, raising twelve claims. After a period of discovery, the district court dismissed the
petition on all asserted claims of error in a comprehensive opinion. Mitts v. Bagley, No.
1:03CV1131, 2005 WL 2416929 (N.D. Ohio Sept. 29, 2005). Mitts timely appealed.

Mitts’ federal habeas petition was filed subsequent to the passage of AEDPA in
1996, and thus its provisions govern this court’s review. Under AEDPA, a federal court
may not grant habeas relief unless the state court’s adjudication of the claim either:

(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). Under the “unreasonable application” prong of this section, the
prong most relevant to the instant case, “[a] federal habeas court may not issue the writ
simply because that court concludes in its independent judgment that the state-court
decision applied [a Supreme Court case] incorrectly.” Price v. Vincent, 538 U.S. 634,
641 (2003). Rather, “[i]n order for a federal court to find a state court’s application . . .
‘unreasonable,’ the state court’s decision must have been more than incorrect or
erroneous[;] [it] must have been ‘objectively unreasonable.’” Wiggins v. Smith, 539 U.S.
510, 520-21 (2003). As this court has stated, “a federal habeas court must ask whether
the state court’s application of clearly established federal law was objectively
reasonable. If the federal court finds that, viewed objectively, the state court has
No. 05-4420 Mitts v. Bagley Page 5

correctly identified the governing legal principle from the Supreme Court’s decisions but
unreasonably applied that principle to the facts of the prisoner’s case, it may grant the
writ.” Millender v. Adams, 376 F.3d 520, 523 (6th Cir. 2004).

In analyzing whether a state court decision is contrary to or an unreasonable
application of clearly established Supreme Court precedent, a federal court may only
look to the holdings of the Supreme Court’s decisions as of the time of the relevant state
court decision. Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Williams, 529 U.S. at 412.
The court may look to lower court of appeals’ decisions to the extent they illuminate the
analysis of Supreme Court holdings to determine whether a legal principle had been
clearly established by the Supreme Court. Hill v. Hofbauer, 337 F.3d 706, 716 (6th Cir.
2003). Finally, the habeas petitioner has the burden of rebutting, by clear and
convincing evidence, the presumption that the state court’s factual findings were correct.
See 28 U.S.C. § 2254(e)(1); McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004).

We certified appealability of Mitts’ following claims: (1) unconstitutional
penalty-phase instructions; (2) ineffective assistance of counsel in the guilt phase of trial;
and (3) ineffective assistance of counsel in the penalty phase of trial.

II.

The State asserts waiver and procedural default as the basis for its argument that
we should not reach the merits of Mitts’ constitutional claim that the jury instructions
in his case are improper. The State’s argument is that Mitts “has never challenged his
jury instructions under Beck, and no previous court in this case has ever referred to
Beck.” Supplemental Brief of Respondent-Appellee at 22. This statement is mistaken.
Here the State’s highest court considered on direct appeal a federal constitutional claim
attacking precisely the same jury instruction and disposed of the appeal by citing one of
its earlier cases that decided the same claim by reference to the same U.S. Supreme
Court case, Beck v. Alabama. Thus, we have the Ohio Supreme Court in this case
referring to an earlier Ohio Supreme Court case deciding the constitutionality of the
same acquittal first mandatory death penalty instructions and doing so based on its
interpretation of Beck v. Alabama, the case that is the basis of Mitts’ theory here.
No. 05-4420 Mitts v. Bagley Page 6

In rejecting Mitts’ argument that the specific jury instructions at issue here — “if
you make such a finding then you must recommend to the court that a sentence of death
be imposed” — the Ohio Supreme Court simply referred to an earlier Ohio Supreme
Court case that had discussed Beck v. Alabama when finding “acquittal first” instructions
improper. State v. Mitts, 690 N.E.2d at 531, simply referred the reader to the state case
of State v. Thomas, in which the Court declined to invalidate the mandatory instruction
based on harmless error:

This instruction does not expressly require unanimous acquittal on the
charged crime . . . . The arguments of the parties as to the prejudicial
effect, if any, of such instruction are somewhat less than clear. In our
opinion, this instruction has negligible coercive potential because it
speaks to the jury’s inability to find, whether unanimously or not, a
certain element of the greater offense.

533 N.E.2d 286, 293 (1988). This conclusion follows its discussion of the Beck case:

The United States Supreme Court has expressly declined to hold whether
or not a defendant is entitled to a lesser included offense instruction [on
life imprisonment] as a matter of constitutional due process. Keeble v.
United States (1973), 412 U.S. 205, 213, 93 S.Ct. 1993, 1998, 36 L.Ed.2d
844; Beck v. Alabama (1979), 447 U.S. 625, 637, 100 S.Ct. 2382, 2389,
65 L.Ed.2d 392, but has noted that “the nearly universal acceptance of
the rule in both state and federal courts establishes the value to the
defendant of this procedural safeguard.” Id.

Thus, in Mitts’ case the Ohio Supreme Court relies on the earlier Thomas case
which rejects Beck v. Alabama as a basis for invalidating the jury instruction at issue.
Perhaps the reference to the Beck case in the Mitts opinion could have been more explicit
and the discussion more detailed. But the State is mistaken in its view that “no previous
court” has “referred” to or rejected Beck as a basis for invalidating this type of
mandatory death penalty instruction.

Mitts has not waived his Beck claim. In both his direct appeal and in his petition
to reopen his direct appeal, Mitts argued that the jury instructions in his case were
unconstitutional under the Fifth, Sixth, Eighth, and Fourteenth Amendments. Mitts
raised this jury instruction issue in the state court. The Court referred to State v. Thomas
No. 05-4420 Mitts v. Bagley Page 7

— a case which relies primarily on federal law including Beck. Federal review does not
turn on the quality, comprehensiveness or correctness of the state court discussion of the
federal issue. The Supreme Court has repeatedly found that when a state decision relies
upon federal cases or other state cases that rely on federal law, the issue has not been
waived and review by a federal court is appropriate. See, e.g., Ohio v. Robinette,
519 U.S. 33, 37 (1996) (“[T]he only cases [the opinion] discusses or even cites are
federal cases, except for the one state case which itself applies the Federal
Constitution”); Illinois v. Rodriguez, 497 U.S. 177, 182 (1990) (“The opinion does not
rely on (or even mention) any specific provision of the Illinois Constitution, nor even the
Illinois Constitution generally. Even the Illinois cases cited by the opinion rely on no
constitutional provisions other than the Fourth and Fourteenth Amendments of the
United States Constitution.”); Michigan v. Chesternut, 486 U.S. 567, 571 n.3 (1988)
(state court decision relied on two state cases that each relied upon federal law). See
also Harris v. Reed, 489 U.S. 255, 263 (1989) (“unless the state court clearly expressed
its reliance on an adequate and independent state-law ground, the Court may address the
federal issue”).

The State also argues that the Ohio Supreme Court only reached the federal
question under “plain error” review and that we should decline review for this reason.
Without “cause and prejudice” we do not address issues in which the state court has
properly and fully invoked procedural default through application of a contemporaneous
objection rule. Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Hinkle v. Randle, 271
F.3d 239, 244 (6th Cir. 2001). However, in the case where the state court goes on
thereafter to address the federal Constitutional question under “plain error” review, we
may address that question. See Roy v. Coxon, 907 F.2d 385, 391 (2d Cir. 1990); see also
Wainwright v. Greenfield, 474 U.S. 284, 289 n.3 (1986) (collecting cases); Ake v.
Oklahoma, 470 U.S. 68, 75 (1985) (“the additional holding of the state court . . . depends
on the court’s federal-law ruling and consequently does not present an independent state
ground for the decision rendered”); Michigan v. Long, 463 U.S. 1032, 1042 (1983) (state
ground not independent “when it fairly appears that the state court rested its decision
primarily on federal law”); Raley v. Ohio, 360 U.S. 423, 436 (1959) (“There can be no
No. 05-4420 Mitts v. Bagley Page 8

question as to the proper presentation of a federal claim when the highest state court
passes on it.”); Manhattan Life Ins. Co. of New York v. Cohen, 234 U.S. 123, 134 (1914)
(duty to review “when it appears that such a question was actually considered and
decided”); Habeas Relief for State Prisoners, 38 Geo. L.J. Ann. Rev. Crim. Proc. 892,
942 n.2722 (2009) (collecting cases). We now address the merits of the Beck jury
instruction claim.

III.

The Ohio jury instructions in this case impose two rules on the jury. The first is
a mandatory death penalty instruction that was recently upheld by the Supreme Court
in a 5-4 decision in Kansas v. Marsh, 548 U.S. 163 (2006) (overruling Kansas Supreme
Court invalidation of Kansas’ mandatory death sentence), combined with an acquittal-
first rule that tells the jury that, before they can consider mercy and some form of life
imprisonment, they must determine whether the factors are present requiring imposition
of the mandatory death penalty. Under this rule, the jurors may not extend mercy to the
defendant until after they have weighed aggravators and mitigators and have acquitted
the defendant of the elements that automatically impose the death penalty. The issue on
the merits is the constitutionality of the combined effect of two rules that together
require the jury as a first step, before considering mercy, to make a decision to acquit the
defendant of the mandatory death sentence. Does this first step process requiring a
decision on the mandatory death penalty interfere with the jury’s ability to give
independent weight to factors that could lead one or more jurors to prefer life
imprisonment? Does the combined effect of the two rules run the risk of causing one or
more jurors to neglect or omit the serious consideration of mercy and life imprisonment
as a choice? Justice Stevens in Spisak explains the answer to these questions: the Ohio
set of jury instructions, both by their literal language and their purpose, only allows for
consideration of a sentence of life after consideration of the mandatory death penalty is
completed by a verdict of acquittal.

Since his direct appeal in 1996, Mitts has argued that the jury instructions in his
case were unconstitutional under the Fifth, Sixth, Eighth, and Fourteenth Amendments.
No. 05-4420 Mitts v. Bagley Page 9

The trial court in the Mitts case gave the jury a mandatory death penalty, acquittal-first
instruction:

When all 12 members of the jury find by proof beyond a reasonable
doubt that the aggravating circumstances in each separate count with
which Harry D. Mitts, Jr. has been found guilty of committing outweigh
the mitigating factors, if any, then you must return such finding to the
Court.
I instruct you as a matter of law that if you make such a finding, then you
must recommend to the Court that the sentence of death be imposed on
the defendant Harry D. Mitts, Jr.
On the other hand, after considering all of the relevant evidence raised
at trial, the evidence and testimony received at this hearing and the
arguments of counsel, you find that the state of Ohio failed to prove
beyond a reasonable doubt that the aggravating circumstances with
which the defendant, Harry D. Mitts, Jr., was found guilty of committing
outweigh the mitigating factors, you will then proceed to determine
which of two possible life imprisonment sentences to recommend to the
Court.

(R. 42, Tr. 153-55, Jury Instructions, App. 2436-38) (emphasis added). In an opinion
by Justice Stevens, the Supreme Court held unconstitutional a mandatory death penalty
rule that required the jury to return a death penalty verdict upon a finding that
aggravators outweighed mitigators combined with a rule that the jury could not first
consider “the third option” of a life sentence based on a lesser-included offense. 447
U.S. at 625. In Spisak, based on the same instruction before us in the instant case,
Justice Stevens concluded that the instructions requiring the jury to first consider a
mandatory death penalty without considering a “third option” of life imprisonment
created the same basic constitutional error as in the Beck case:

The acquittal-first jury instructions used during Spisak’s penalty phase
interposed before the jury the same false choice that our holding in Beck
prohibits. By requiring Spisak’s jury to decide first whether the state had
met its burden with respect to the death sentence, and to reach that
decision unanimously, the instructions deprived the jury of a meaningful
opportunity to consider the third option that was before it, namely, a life
sentence. Indeed, these instructions are every bit as pernicious as those
at issue in Beck because they would have resulted in a new trial and that,
in any event, they could not give effect to their determination that a life
No. 05-4420 Mitts v. Bagley Page 10

sentence was appropriate unless and until they had first convinced each
of their peers on the jury to reject the death sentence.

Spisak, 130 S. Ct. at 690-91. Having explained this problem of requiring the jury to
focus first and decide first on the mandatory death penalty sentence, Justice Stevens
concludes, “Spisak and the Court of Appeals both correctly assailed the jury instructions
at issue in this case, but in my view Beck provides the proper basis in clearly established
federal law to conclude the instructions were unconstitutional.” Id. at 691 (emphasis
added).2

The jury instructions at issue in Spisak are the same as those given by the Mitts
Court. The Ohio Supreme Court held in Mitts that under Ohio law the jury could
consider “possible life sentences” only “if all twelve members of the jury found that the
State had not proved that the aggravating circumstances” predominated. 690 N.E.2d at
531. The Mitts Court cited Ohio Revised Code § 2929.03(D)(2) for its interpretation that
the jury must look first to the mandatory death penalty requirement.3 Because Beck
compels that proper instructions must make clear that the jury does not have to complete
its death deliberation before considering a life sentence, Mitts’ due process rights were
violated. Under Beck, a jury instruction violates due process if it requires a mandatory

2
Our dissenting colleague takes issue with Justice Stevens’ statement that the Beck case is
“clearly established federal law” for AEDPA purposes, claiming simply that “a concurring opinion” cannot
constitute “clearly established law.” Our colleague does not understand that we are simply agreeing with
Justice Stevens that Beck itself, decided thirty years ago, is the clearly established law that invalidates these
jury instructions.
In addition, the fact that Mitts did not specifically cite Beck in the court below in attacking these
same jury instructions is not a waiver of Mitts’ claim that, as Justice Stevens puts it, “the instructions
deprive the jury of a meaningful opportunity to consider a third opinion that was before it, namely, a life
sentence.” This is the same basic argument Mitts made below and on appeal, except in a slightly different
dress made by the same dress-maker out of the same cloth. We should not be distracted from addressing
a fundamental constitutional argument by the label in the back, especially in a death penalty case. We
should not struggle to avoid deciding fundamental constitutional issues so that the prisoner can go to his
death without our considering a claim that may allow him to live.
3
This Ohio statute provides:
If the jury unanimously finds by proof beyond a reasonable doubt, that the aggravating
circumstances the offender was found guilty of committing outweigh the mitigating
factors, the trial jury shall recommend to the court that the sentence of death be imposed
on the offender. Absent such a finding, the jury shall recommend that the offender be
sentenced to life imprisonment with parole eligibility after serving twenty full years
imprisonment or to life imprisonment with parole eligibility after serving thirty full
years of imprisonment.
No. 05-4420 Mitts v. Bagley Page 11

death penalty sentence that can only be avoided by an acquittal before the jury has an
opportunity to consider life imprisonment. 447 U.S. at 645. Accordingly, the holding
of the Supreme Court of Ohio was contrary to clearly established federal law as
determined by the Supreme Court of the United States in Beck v. Alabama; and we
hereby remand the case to the district court with instructions to issue a writ of habeas
corpus vacating Mitts’ death sentence unless the State conducts a new penalty phase
proceeding within 180 days of remand.

IV.

On the issue of ineffective assistance of counsel at the guilt phase of the trial,
Mitts argues that his counsel completely failed to investigate the case and presented a
single defense – amnesia caused by alcohol blackout – that counsel knew was
unsupported by the facts and the law. He contends that counsel suppressed facts,
ignored what Mitts and their expert told them, and presented a witness whom they knew
would eviscerate their theory. As a result, Mitts argues that his counsel failed to subject
the state’s case to meaningful adversarial testing and created a presumptively unfair
trial.4

We review a district court’s decision regarding a habeas petitioner’s claim of
ineffective assistance of counsel de novo. Avery v. Prelesnik, 548 F.3d 434, 436 (6th
Cir. 2008). The standard for whether counsel’s ineffectiveness fell below the minimum
requirements of the Sixth Amendment contains two components: (1) the deficient
performance of counsel as compared to an objective standard of reasonable performance,

4
Mitts argues at length that his first claim—ineffective assistance of counsel in the guilt phase
of trial—falls within the ambit of United States v. Cronic, 466 U.S. 648 (1984). A companion case to
Strickland v. Washington, 466 U.S. 668 (1984), Cronic provides three situations in which Strickland’s
prejudice requirement is presumed to be satisfied. Mitts seeks to invoke the Cronic situation whereby
prejudice may be presumed if “counsel entirely fails to subject the prosecution’s case to meaningful
adversarial testing.” Cronic, 466 U.S. at 659. In 2002, the Supreme Court clarified that Cronic’s
presumption applies only where defense counsel completely fails to oppose the prosecution throughout
the guilt or penalty phase as a whole. Bell v. Cone, 535 U.S. 685, 697 (2002). Taking their cue from Bell,
lower courts have all but created a bright-line distinction between counsel who provide no representation
at all (Cronic) and those who provide bad or even deplorable assistance (Strickland). See Moss v.
Hofbauer, 286 F.3d 851, 861 (6th Cir. 2002) (collecting cases). In Moss, the court’s majority found that
trial counsel, “good or bad, was clearly not the equivalent of being physically or mentally absent . . . [t]his
requires us to evaluate her performance under the Strickland standards, not under the Cronic rule of per
se prejudice.” Id. at 862. Accordingly, the district court’s implicit finding that Cronic is inapplicable is
correct, and Strickland governs both of Mitts’ ineffective assistance of counsel claims.
No. 05-4420 Mitts v. Bagley Page 12

and (2) that there is a reasonable probability that the lawyer’s errors prejudiced the
outcome of the proceedings. Strickland, 466 U.S. at 687-88. “[T]he performance
inquiry must be whether counsel’s assistance was reasonable considering all the
circumstances.” Id. at 688. Reviewing courts must try to “eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689. To
satisfy the prejudice prong of the Strickland test, the petitioner must show that a
reasonable probability exists that, but for his counsel’s unprofessional errors, the results
of the proceeding would have been different. Id. at 694; Johnson v. Bell, 525 F.3d 466,
486-87 (6th Cir. 2008). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694. To prevail on an
ineffective assistance of counsel claim, Mitts must satisfy both the deficient performance
and prejudice prongs of Strickland. See Harries v. Bell, 417 F.3d 631, 636 (6th Cir.
2005).

We agree with the district court that counsel’s performance during the guilt phase
of trial was constitutionally deficient. The performance of Mitts’ lead defense counsel,
Thomas Shaughnessy, was deficient because he pursued a blackout defense despite
knowing that Mitts could in fact recall most of the events of August 14 and 15, 1994, and
because he did not have any evidence to support the theory that a person who suffered
an alcoholic blackout would have been unable to form the specific intent to kill.

In an affidavit filed in support of his state court post-conviction petition, Mitts
said his lawyer told him that he should say he had a blackout when the shootings
occurred. (J.A. 634.) At his deposition for the federal habeas proceedings, Mitts
described what he remembered about the shootings, indicating that although there were
gaps in his memory he was able to recall both his internal struggles about his actions and
most of the actions themselves. Mitts testified that he told Shaughnessy everything that
he said in his deposition and that Shaughnessy told him to say that he did not remember.
Mitts apparently followed the advice; in his unsworn statement in the mitigation phase
No. 05-4420 Mitts v. Bagley Page 13

of trial, he stated that he “never meant for any of this to happen” and said he only
remembered bits and pieces of what happened. (J.A. 2360-62.)

Susan Evanson, a mitigation specialist who worked on Mitts’ case, swore in an
affidavit that Mitts “revealed to me that he was not in a blackout state at the time of his
offenses, but was told by his attorney that under any circumstances [not] to tell anyone
that he remembered anything regarding the charges.” (J.A. 498-99.) Evanson had
compiled a social history of Mitts by interviewing him and his family members and
submitted a report to Dr. James Eisenberg, a psychologist appointed by the court to assist
Mitts in the mitigation phase. Mitts first told Evanson that he did not remember the
events of August 14-15, 1994, but he later told her that he did not have a blackout and
that Shaughnessy told him not to tell anybody the truth. Evanson told Dr. Eisenberg
what Mitts had told her. According to Evanson, Shaughnessy did not meet with her or
Dr. Eisenberg until the day that Dr. Eisenberg testified at the mitigation phase of trial.

In his affidavit, Dr. Eisenberg stated that Mitts told him that his attorneys insisted
he maintain during his interview and trials that he was in a blackout during his crimes.
Dr. Eisenberg said that he did not believe that Mitts suffered a blackout and that
Shaughnessy refused to accept his opinion about Mitts’ mental state during the crimes.
Dr. Eisenberg also stated that Shaughnessy was only interested in the blackout theory
and did not want to address other psychological issues. In his deposition, Dr. Eisenberg
testified that he refused to go along with Shaughnessy’s blackout theory because Mitts
never told him that he blacked out. Dr. Eisenberg said that Mitts was able to give a
fairly detailed account of the events that led to his arrest, and he told Shaughnessy he did
not think Mitts had a blackout. The psychiatrist also testified that Mitts told him it was
his attorney’s idea to say he had a blackout.

Accordingly, if Mitts, Evanson, and Dr. Eisenberg are to be believed,
Shaughnessy pursued the blackout defense even though he knew that Mitts could
remember many of the events of August 14-15, 1994, and instructed Mitts to lie about
his memory. Shaughnessy is deceased, and nothing in the record from his co-counsel
disputes Mitts’ account or those of Evanson and Dr. Eisenberg.
No. 05-4420 Mitts v. Bagley Page 14

The record also establishes that Shaughnessy knew, or should have known, that
psychiatrist and defense expert Sonya McKee would not support the theory that someone
who was intoxicated to the point of being unable to recall his actions later would have
been unable to form specific intent. Shaughnessy tried to ask that question of Dr.
McKee in the competency hearing on September 21, 1994, but the trial court sustained
the prosecution’s objection. Shaughnessy told Dr. McKee that he would definitely ask
her the question again in front of the jury. Later in the hearing, Dr. McKee explained
that although an intoxicated person may not remember his actions later, at the time he
is conscious and engaged in activities. Dr. McKee also testified that Mitts’ explanation
that he remembered doing something without understanding why or what he was doing
was not consistent with an alcohol blackout. During trial on November 2, 1994,
Shaughnessy prefaced his question on this subject by saying, “[l]et me ask you the
question, Doctor, that I haven’t asked you before or we haven’t got to before.” (J.A.
2068.) He then asked whether a person who is unable to lay down memories would have
the ability to form the specific intent to cause a particular thing to happen. Dr. McKee
answered, “Yes.” (J.A. 2069.) The record thus demonstrates that Shaughnessy should
have recognized that Dr. McKee would not support his lack of specific intent theory, that
Shaughnessy did not question Dr. McKee about his theory between the competency
hearing and the trial, and that Shaughnessy called Dr. McKee as a witness with no
reason to believe she would support his theory. Shaughnessy was forced to concede his
defense in closing argument.

In sum, Shaughnessy’s sole theory at trial was that Mitts lacked the requisite
intent to commit murder as a result of voluntary intoxication, yet the defense’s only
expert witness directly contradicted that theory and Shaughnessy should have been
aware that Mitts did remember much of the events. The defense’s expert, Dr. McKee,
testified that Mitts acted purposefully and intentionally—thereby not only destroying
Mitts’ sole defense but also proving a key element of the prosecution’s case. Such
performance alone would enable us to find counsel deficient for failing to fully
investigate before presenting witness testimony. See Combs v. Coyle, 205 F.3d 269, 288
(6th Cir. 2000). Sadly, counsel’s deficiency ran even deeper. Even a preliminary
No. 05-4420 Mitts v. Bagley Page 15

conversation with Dr. McKee would have revealed that she would not have supported
a defense of voluntary alcohol intoxication for any defendant in any trial under any
circumstances. It was her clinical opinion than anyone—not only Mitts—would pass out
before alcohol intoxication rendered them unable to form intent. (J.A. 1200.) Moreover,
the record shows that trial counsel had a hunch that Dr. McKee would contradict his
intoxication defense and still placed her on the stand. (J.A. 1206 (defense counsel
commented during side bar: “the lady [Dr. McKee], as I guessed that she would, was
going to say that the defense is bull shit, which is about what she’s saying.”).)
Shaughnessy’s failure to do the minimal investigation required to determine his own
expert’s opinion about a matter central to his theory of the defense was objectively
unreasonable and constituted deficient performance under Strickland and Combs.

Notwithstanding trial counsel’s deficiencies, we agree with the district court that
Mitts does not establish prejudice under Strickland. Shaughnessy did concede that Mitts
shot the victims and abandoned the alcohol blackout defense after Dr. McKee’s
testimony, leaving Mitts without a viable defense theory at trial. Shaughnessy did not,
however, bring out damaging information about Mitts, make him seem dangerous, or
express contempt for him. He cross-examined the state’s witnesses and brought out
evidence in the guilt phase that laid the groundwork for the mitigation phase of trial.

Moreover, while Dr. McKee contradicted Mitts’ voluntary intoxication defense,
Mitts cannot show that another expert would have testified that Mitts was too intoxicated
to form the specific intent to kill. Dr. Eisenberg testified during the mitigation phase that
Mitts was highly intoxicated on the night of the offense but did not testify that Mitts
lacked the intent to shoot the victims. (J.A. 1471-73 (testifying that the majority of the
individuals whom he has evaluated as having alcohol impairment “were able to have
knowledge and purpose at the time [of the offense].”).) As Mitts’ habeas counsel has
noted, neither intoxication nor blackout was a defense available to Mitts. Neither the
facts nor the law supported such a defense and the evidence of Mitts’ guilt was
overwhelming.
No. 05-4420 Mitts v. Bagley Page 16

Even at this stage in the proceedings, Mitts offers no evidence of a trial strategy
that may have produced a different result. As Mitts implies, the only alternative
approach that his counsel could have reasonably attempted was a full concession
defense. The Supreme Court recognized the merits of such a strategy in Florida v.
Nixon, 543 U.S. 175 (2004) (defense attorney’s concession of guilt in a capital trial—in
light of overwhelming evidence against his client—did not constitute ineffective
assistance of counsel). By admitting guilt from the beginning, the attorney will “impress
the jury with his candor and his unwillingness to engage in ‘a useless charade.’” Id. at
192 (quoting Cronic, 466 U.S. at 656-57 n.19).

It follows from Nixon that overwhelming evidence of guilt may signal to an
attorney that a concession defense could prove an effective tactic, but we cannot extend
the dicta of Nixon to find that counsel’s failure to implement a concession defense
constitutes ineffective assistance of counsel. Obviously, Mitts cannot show that a full
concession defense could have changed the result of the proceedings at the guilt phase;
the jury would, of course, have found him guilty. Mitts also cannot demonstrate that a
concession defense at the guilt phase would have resulted in a lighter penalty at
sentencing because such a tactic relies upon unprovable factors, such as the credibility
of the lawyer and the morality and sympathy of the jury.

Lacking any viable alternative trial theory, Mitts cannot demonstrate “that there
is a reasonable probability that, but for counsel’s errors, the factfinder would have had
a reasonable doubt about his guilt.” Hicks v. Collins, 384 F.3d 204, 215 (6th Cir. 2004)
(citing Strickland, 466 U.S. at 695). Hence, Mitts fails to satisfy the prejudice standard
of Strickland and his first claim must fail.

V.

Mitts also claims that his trial counsel failed to investigate his case and failed to
present evidence of viable mitigating factors. He charges that his counsel relied upon
the unsupportable theory of alcohol-induced blackout that was discredited during the
guilt phase of trial.
No. 05-4420 Mitts v. Bagley Page 17

We also agree with the district court’s assessment of counsel’s performance
during the penalty phase of trial. Counsel’s chief deficiency during the guilt phase
carried over into the mitigation phase when counsel continued to focus on alcohol
intoxication. Despite having already received a guilty verdict that nullified the
intoxication defense and the fact that Dr. Eisenberg did not believe that Mitts blacked
out and that Dr. McKee had rejected the idea that a blackout meant that Mitts was so
intoxicated that he could not form specific intent, counsel told the jury that alcohol
intoxication was the “only thing that may mitigate.” (J.A. 1387.) Shaughnessy also
appeared to attack his own witnesses by comparing psychiatrists to those who believed
in witches and by describing Mitts as a monster who should never be released from
prison. It could be argued that Shaughnessy thought that the jurors would be skeptical
of psychological explanations for Mitts’ actions and that he wanted to assure the jury
that, because of Mitts’ age, he would die before becoming eligible for parole. These
possible strategic reasons for parts of Shaughnessy’s approach do not comprise a well-
thought-out mitigation strategy. The district court correctly found that defense counsel
did not conduct a reasonable investigation of alternative theories of mitigation and thus
fell below the contemporaneous standards established by the Supreme Court and the
American Bar Association. See Wiggins v. Smith, 539 U.S. 510, 522-23, 527 (2003);
Strickland, 466 U.S. at 691; ABA Guidelines for the Appointment and Performance of
Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989); 1 ABA Standards for Criminal
Justice 4-4.1, commentary, pp. 5-55 (2d ed. 1982).

In order to assess whether prejudice resulted from counsel’s failures at the
penalty phase of trial, we “reweigh the evidence in aggravation against the totality of
available mitigating evidence.” Wiggins, 539 U.S. at 534. In order to establish
prejudice, “the new evidence that habeas petitioner presents must differ in a substantial
way—in strength and subject matter—from the evidence actually presented at
sentencing.” Brooks v. Bagley, 513 F.3d 618, 627 (2008) (internal citations omitted).
On appeal, Mitts argues that he suffered prejudice at sentencing because trial counsel
failed to present evidence of Mitts’ avoidant personality disorder, full-scale IQ of 85,
and “violent fantasy life.” Dr. Eisenberg was unable, however, to link any event or
No. 05-4420 Mitts v. Bagley Page 18

events in Mitts’ past to his actions on August 14 and 15, 1994, nor did he find or suggest
that Mitts had an organic brain injury or a mental illness that might have contributed to
his actions. His testimony that Mitts had no significant prior record and showed ability
to adjust to prison life would have been cumulative to the evidence that was introduced
in Mitts’ mitigation hearing. The lay witnesses who testified on Mitts’ behalf at trial
portrayed him as a gentle man who loved his daughter and was seemingly incapable of
the crimes he committed. Dr. Eisenberg’s expanded explanation of the role of alcohol
in Mitts’ crimes would not likely have had much impact given the ineffectiveness of this
evidence at trial. Mitts fails to show a reasonable probability that, but for counsel’s
failure to introduce this evidence at trial, he would have received a different verdict. We
agree with the district court that the jury would not have given sufficient mitigation
weight to Mitts’ avoidant lifestyle, fascination with violent movies, or low normal
intelligence to overcome the substantial aggravating factors in this case, to wit: killing
a man while yelling a racial epithet and knowingly murdering a police officer in the
performance of his duties.

The district court also correctly points out that the mitigation weight of such
evidence is significantly lighter than the mitigation evidence in cases where prejudice
has been found. See, e.g., Rompilla v. Beard, 545 U.S. 374 (2005) (petitioner was raised
by alcoholic parents, was regularly beaten by his father, and grew up in a filthy home,
attending school “in rags”); Wiggins, 539 U.S. at 523-25 (petitioner’s mother was a
chronic alcoholic and, on at least one occasion, left petitioner and his siblings alone for
days without food; petitioner was shuttled from foster home to foster home and
displayed emotional difficulties); Williams v. Taylor, 529 U.S. 362, 395-96 (2000)
(petitioner’s parents were imprisoned for criminal neglect of petitioner and his siblings
and petitioner had nightmarish childhood, was severely and repeatedly beaten by his
father and was borderline mentally retarded); Harries v. Bell, 417 F.3d 631, 639-40 (6th
Cir. 2005) (petitioner had traumatic childhood, suffered significant physical abuse and
had a mental illness); Frazier v. Huffman, 343 F.3d 780, 794 (6th Cir. 2003) (petitioner
had brain injury that impaired brain functioning); Hamblin v. Mitchell, 354 F.3d 482,
No. 05-4420 Mitts v. Bagley Page 19

490-91 (6th Cir. 2003) (petitioner grew up in environment of extreme poverty, neglect,
violence, and instability and suffered from a mental disorder).

Once the jury was prevented by its instructions from considering mercy and life
imprisonment until after an acquittal on the mandatory death penalty elements, the
strength of the State’s case and the brutal and senseless nature of the crime made it
unlikely that the deficiencies in counsel’s performance would have made any difference.
The post-conviction evidence developed by habeas counsel does not convince us that
trial counsel could have developed a basis for leniency so long as the structure of the
jury’s deliberations required that the jury first acquit Mitts of the mandatory death
penalty.

VI.

Accordingly, as aforesaid, we affirm the District Court’s conclusions as to
ineffective assistance of counsel but agree with Justice Stevens’ conclusions respecting
the acquittal-first jury instructions and issue the writ of habeas corpus on that ground.
The jury instructions prevented counsel from having a chance to convince the jury that
life imprisonment was a viable option.
No. 05-4420 Mitts v. Bagley Page 20

___________________________________________________

CONCURRING IN PART AND DISSENTING IN PART
___________________________________________________

SILER, Circuit Judge, concurring in part and dissenting in part. I concur in the
conclusions in the majority opinion in Parts IV. and V., that is, I concur in the
conclusions that Mitts has failed to satisfy the prejudice standard in both claims under
Strickland v. Washington, 466 U.S. 668, 687 (1984). Nevertheless, I would not
comment upon the deficient performance prong under Strickland, because I believe it to
be unnecessary.

However, I differ with the majority in its conclusion under Part III., that a writ
of habeas corpus should issue because the jury instructions were unconstitutional. First,
I would not authorize the issuance of a writ of habeas corpus in this case based upon the
concurring opinion by Justice Stevens in Smith v. Spisak, 554 U.S. ___, 130 S. Ct. 676,
689 (2010). It was not raised by Mitts in his brief in this court nor in the district court,
and it was only brought up by our court during oral argument. Certainly, a concurring
opinion in a recent case does not constitute “clearly established Federal law” as
determined by the Supreme Court. 28 U.S.C. § 2254(d)(1). The holding in Spisak was
“that the state court’s decision upholding these forms and instructions was not ‘contrary
to, or . . . an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States’ in Mills [486 U.S. 367].” Spisak, 130 S. Ct.
at 684. It also held that this court erred when it found jury instructions unconstitutional
because they required “the jury to unanimously reject the death sentence before
considering other sentencing alternatives.” Id. But the Court said that it had not
“previously held jury instructions unconstitutional for this reason.” Id. Like Mitts,
Spisak never cited Beck v. Alabama, 447 U.S. 65 (1980), in the Supreme Court or in any
lower court.

Moreover, the Supreme Court has never extended Beck to cover penalty-phase
jury instructions. In his post-argument brief, Mitts has failed to cite any Supreme Court
No. 05-4420 Mitts v. Bagley Page 21

case which applied Beck to penalty-phase instructions. Instead, he cites only Murtishaw
v. Woodford, 255 F.3d 926, 972 (9th Cir. 2001).

The Supreme Court found that the jury instructions in Spisak, just like the ones
in our case, meet the test under AEDPA, 28 U.S.C. § 2254 (b)(1), that is, that the state
court’s decision on the mitigation jury instructions was not contrary to, or an
unreasonable application of, clearly established Federal law.

I also believe that Mitts is now precluded from raising the Beck issue at this late
time. He has never challenged his jury instructions under Beck, either in state court or
in his habeas petition. Such an issue was raised in Goff v. Bagley, 601 F.3d 445 (6th Cir.
2010), where we would not rule on a last-minute Beck question when “neither Goff nor
any previous court below referred to Beck . . . or identified any other precedent from th[e
Supreme] Court setting forth this rule.” Id. at 459. (quoting Spisak, 130 S. Ct. at 684).
Thus, we declined in Goff to consider the case under the Beck principle, even though the
dissent suggested that we should. The majority herein suggests that the Beck principle
was raised by Mitts because the Ohio Supreme Court referred to State v. Thomas, 533
N.E. 2d 286, 293 (Ohio 1988), which cited Beck. I do not think that Mitts preserved this
issue, but even if he did, Beck does not apply in our situation. I would affirm the district
court’s denial of the writ of habeas corpus.