Goodwin v. Johnson

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0017p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Petitioner-Appellee/Cross-Appellant, -
MICHAEL GOODWIN,
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Nos. 06-3571/3572
v.
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Respondent-Appellant/Cross-Appellee. -
DAVID JOHNSON, Warden,
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 99-02963—John M. Manos, District Judge.
Argued: December 2, 2009
Decided and Filed: January 21, 2011
Before: MARTIN, GILMAN, and McKEAGUE, Circuit Judges.

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COUNSEL
ARGUED: Sarah Lyn Leatherman, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellant. Pamela Prude-Smithers, OFFICE OF THE OHIO
PUBLIC DEFENDER, Columbus, Ohio, for Appellee. ON BRIEF: Matthew A. Kanai,
Thomas E. Madden, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellant. Richard G. Lillie, LILLIE & HOLDERMAN, Cleveland, Ohio,
Pamela Prude-Smithers, OFFICE OF THE OHIO PUBLIC DEFENDER, Columbus,
Ohio, for Appellee.
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OPINION
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McKEAGUE, Circuit Judge. Warden David Johnson appeals from the district
court’s order granting Michael Goodwin’s petition for a writ of habeas corpus in part.
The district court determined that Goodwin, convicted of murder and sentenced to death
in the Cuyahoga County (Ohio) Circuit Court in December 1994, was denied his right

1
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to effective assistance of counsel at sentencing. Goodwin applied for a certificate of
appealability concerning the district court’s denial of his other habeas claims. By order
dated November 8, 2007, we granted Goodwin’s application in part and denied it in part.
We permitted Goodwin to appeal the district court’s denial of his claims of:
(1) ineffective assistance of counsel during the guilt phase of trial; (2) insufficient
evidence of prior calculation and design; and (3) failure to instruct the jury on the lesser
included offense of involuntary manslaughter. On due consideration of the parties’
briefs and oral arguments, as well as the record below and the district court’s decision,
we overrule the Warden’s appellate challenge and uphold the ruling that Goodwin did
not receive effective assistance of counsel at sentencing. We also conclude that
Goodwin’s cross-appellate claims are without merit. For the reasons more fully set forth
below, we therefore affirm the district court’s decision in all respects.

I. BACKGROUND

Goodwin was tried, convicted, and sentenced in December 1994 for his
participation in the robbery of the Big Star Market in Cleveland, Ohio and the murder
of Mustafa Sammour, a store clerk, just three months earlier. The Ohio Supreme Court
summarized the facts of the case as follows:

On September 13, 1994, appellant Michael Goodwin, James Padgett, and
James Johnson robbed the Big Star Market at East 55th Street and
Quimby Avenue in Cleveland. During the course of the robbery,
Mustafa Sammour, a store clerk, was fatally shot.
Between 8:55 and 9:10 a.m. on the morning of the robbery, a milk truck
driver, Lawrence Austin, saw two men exit the market and run down the
street. Subsequently, Austin saw Goodwin, wearing a shirt with the
number “ 7” on it, also exit the market. Austin observed that Goodwin
dropped some money on the ground while trying to put the money in his
pocket. Austin retrieved the dropped money and took it inside the
market, giving it to one of the clerks. Once inside the market, Austin saw
one clerk, Mustafa, lying on the floor. Almohannad Sammour, another
clerk, stated to Austin, “[T]hey shot my cousin.” Two bystanders also
witnessed the three men running down the street from the market.
Marilyn Rox, who knew Goodwin, identified him as one of the men
running.
Nos. 06-3571/3572 Goodwin v. Johnson Page 3

Later the same morning, Goodwin called Tyrone Griffin and asked him
to dispose of a bag. Griffin retrieved a bag from Goodwin containing
trousers and a shirt with the number “7”on it. Padgett testified that
Goodwin’s clothes were stained with blood. Griffin destroyed the
clothing.
At the crime scene, the police found Mustafa’s body behind a counter.
Blood was splattered about the area near his body. On the counter, the
police found twelve one-dollar bills. Detectives also discovered a
copper-jacketed bullet in the refrigeration area of the store, near
Mustafa’s body. A forensics expert later concluded that the bullet had
been fired from either a .357 Magnum or .38 caliber revolver. Near the
floor by the safe, detectives found a bullet hole and fragments of a
second bullet. About two weeks prior to the robbery, Jermaine Brown,
a friend of the appellant, had sold the appellant a .357 Magnum revolver.
Dr. Martha Steinberg, a forensic pathologist, found that Mustafa
Sammour died as a result of a gunshot wound to the left forehead. The
wound was described as a “through and through” gunshot wound,
causing such extensive injury to Mustafa’s brain and skull that, in the
words of Steinberg, “death was virtually immediate.” Steinberg further
stated that the impact of this type of wound would be so forceful that the
shooter could possibly have had blood and remains of the victim’s brain
splattered onto him.
On September 14, the police arrested Goodwin. After advising him of
his rights, he told police that he alone robbed the market and that Johnson
and Padgett were customers. He stated that he pointed his gun at the
“Arab clerk” and ordered him to take him, Goodwin, to the safe.
Goodwin further stated that after Mustafa said something, “the gun just
went off.” Upon further questioning, Goodwin stated that he confronted
the other clerk, Almohannad. Almohannad took him to the safe, where,
according to Goodwin, the gun “just went off” again. Before he left the
store, Goodwin took money from the safe and the cash register.
Two days later police again interviewed Goodwin. He changed his
previous statement by naming Johnson and Padgett as accomplices. He
claimed that Padgett was armed with the .357 Magnum revolver, that he
had a .45 automatic handgun, and that Johnson was unarmed. Goodwin
claimed that Padgett had shot the clerk. While in jail, however, Goodwin
confided to Antoine Robinson, another inmate at the jail, that he had shot
Mustafa. He also told Johnson that he would blame the killing on
Padgett, as Padgett was the only one among the three robbers who did
not have children.
Goodwin was charged with aggravated murder in violation of R.C.
2903.01(A), with felony murder and firearm specifications; aggravated
Nos. 06-3571/3572 Goodwin v. Johnson Page 4

murder in violation of R.C. 2903.01(B), with felony murder and firearm
specifications; aggravated robbery in violation of R.C. 2911.01(A)(1);
and with having a weapon while under disability in violation of R.C.
2923.13. Padgett and Johnson were both offered plea agreements in
exchange for their testimony against Goodwin.
At trial, the following testimony was adduced. Derrick Flonnory, a
friend of the appellant, testified that the appellant stopped at his house
around 8:15 or 8:30 on the morning of the robbery. Goodwin wanted
Flonnory to help him rob the market, but Flonnory declined. Padgett and
Johnson testified that Goodwin suggested to them that they rob the
market. Both Padgett and Johnson testified that Goodwin was carrying
the .357 Magnum revolver prior to entering the store. When the three
men arrived at the market, Goodwin went inside first. All three men
wore hats pulled down over the faces.
After entering the market, Padgett and Johnson confronted Almohannad.
Goodwin confronted Mustafa. Mustafa had his hands up. There was no
testimony that he resisted in any way. While Mustafa stood with his
arms raised above his head, Goodwin shot Mustafa in the head. After
Goodwin shot Mustafa, he pointed the gun at Almohannad’s head and
ordered him to take Goodwin to the safe. Almohannad offered no
resistance and pleaded with Goodwin not to shoot him. Almohannad
then opened the safe and gave Goodwin the money. While Almohannad
was giving Goodwin the money, Goodwin fired a shot into the floor,
retrieved money from the cash register, and then exited the market with
Johnson and Padgett.
Testimony by Almohannad, Mustafa’s cousin, generally corroborated
that of Johnson and Padgett. When the three men came into the store,
Almohannad recognized Johnson and Goodwin as regular customers.
Subsequently, Padgett grabbed Almohannad from behind. Almohannad
stated that both Johnson and Goodwin were armed. However,
Almohannad did not see who fired the shot that killed Mustafa.
Following the robbery, the three men went back to Goodwin’s house,
where Goodwin divided the money. Goodwin gave the men
approximately one hundred thirty dollars each, and kept the rest for
himself. In his statement to the police, Goodwin admitted stealing
approximately five hundred dollars.
During cross-examination, Padgett and Johnson admitted that their
testimony conflicted with their original sworn statements to authorities.
For example, Johnson first told police that he had no gun, but, at trial, he
testified that he was armed with a .45 caliber pistol. Also both Padgett
and Johnson told police that they had never received any money from the
robbery, when in fact Goodwin had split the proceeds with them.
Nos. 06-3571/3572 Goodwin v. Johnson Page 5

The defense presented no evidence. Rather, the defense argued that a
reasonable doubt existed as to whether Goodwin shot Mustafa.
The jury convicted Goodwin, as charged, of aggravated murder with
prior calculation and design, aggravated felony-murder, aggravated
robbery, and possession of a firearm while under a disability. Both
murder counts contained a death penalty specification.
The defense presented no evidence at the penalty hearing. The jury
recommended the death penalty. Prior to the trial court’s passing
sentence, Rosetta Goodwin, Goodwin’s aunt, stated that Goodwin did not
deserve the death penalty because he was born drug dependent and
because his mother abandoned him when he was nine. Goodwin
apologized to the victim’s family. He stated that he did not intend to kill
Mustafa, claiming that he hit Mustafa with the gun, and the gun went off.
Goodwin also admitted to the trial judge that he took Mustafa’s life,
saying, “I did take the man’s life, but I confess up to my crimes.”
The trial judge sentenced Goodwin to death on the counts of aggravated
murder. Goodwin received additional sentences of ten to twenty-five
years on the count of aggravated robbery, and one and one-half years on
the weapon disability count, with an additional three years imposed
pursuant to a firearm specification.

State v. Goodwin, 703 N.E.2d 1251, 1254-56 (Ohio 1999).

After his trial and conviction, Goodwin appealed, represented by different
counsel. On appeal, he asserted claims for ineffective assistance of trial counsel,
prosecutorial misconduct, improper jury selection, insufficiency of the evidence, and
improper jury instructions. The Ohio Court of Appeals affirmed his convictions and
sentences in April 1997. State v. Goodwin, No. 68531, 1997 WL 186770 (Ohio App. 8
Dist.). The Ohio Supreme Court affirmed Goodwin’s convictions and sentences in
January 1999 and denied reconsideration.

Goodwin had filed a petition for post-conviction relief in the trial court in
September 1996, while his direct appeal was pending. He again raised the issue of
ineffective assistance of counsel. The trial court denied the petition without an
evidentiary hearing. The Ohio Court of Appeals affirmed that decision in May 1999.
State v. Goodwin, No. 72043, 1999 WL 342305 (Ohio App. 8 Dist.). The Ohio Supreme
Court denied further review.
Nos. 06-3571/3572 Goodwin v. Johnson Page 6

Goodwin filed his habeas petition in federal court in June 2000, raising twelve
claims. The district court held an evidentiary hearing on Goodwin’s claim of ineffective
assistance of counsel at sentencing. By order dated March 22, 2006, the district court
granted habeas relief on that claim and denied the remaining claims. Goodwin v.
Johnson, No. 1:99-cv-2963, 2006 WL 753111 (N.D. Ohio). The Warden appeals the
grant of habeas relief as of right. Goodwin has cross-appealed, challenging the denial
of his other claims. We granted Goodwin’s application for a certificate of appealability
with respect to three of those claims.

II. ANALYSIS

A. AEDPA Standard of Review

We review the district court’s legal conclusions and rulings on mixed questions
of law and fact de novo, and we review its factual findings for clear error. Armstrong
v. Morgan, 372 F.3d 778, 781 (6th Cir. 2004); Lucas v. O’Dea, 179 F.3d 412, 416 (6th
Cir. 1999). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), the
federal courts may not grant habeas relief on any claim that was adjudicated on the
merits in the state courts unless the adjudication resulted in a decision that: (1) was
contrary to, or involved an unreasonable application of, clearly established federal law
as determined by the Supreme Court; or (2) was based on an unreasonable determination
of the facts in light of the evidence presented to the state courts. 28 U.S.C. § 2254(d).
Under the “contrary to” clause, a federal habeas court may grant the writ only if the state
court arrived at a conclusion opposite to that reached by the Supreme Court on a
question of law, or if the state court decided the case differently than the Supreme Court
has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-
13 (2000). Under the “unreasonable application” clause, a federal court may grant the
writ only if the state court identified the correct governing legal principle from the
Supreme Court’s decisions but unreasonably applied that principle to the facts of the
petitioner’s case. Id. Yet, “a federal habeas court may not issue the writ simply because
that court concludes in its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly.” Id. at 411. Rather,
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to warrant habeas relief, the application must be found to be “objectively unreasonable.”
Id. at 409. “AEDPA thus imposes a ‘highly deferential standard for evaluating state-
court rulings.’” Renico v. Lett, 130 S.Ct. 1855, 1862 (2010) (quoting Lindh v. Murphy,
521 U.S. 320, 333 n.7 (1997)).

In analyzing whether a state court decision is contrary to or an unreasonable
application of clearly established Supreme Court precedent, a federal court may look
only 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.
However, the court may look to lower courts of appeals’ decisions to the extent they
illuminate the analysis of Supreme Court holdings in determining whether a legal
principle had been clearly established by the Supreme Court. Landrum v. Mitchell, 625
F.3d 905, 914 (6th Cir. 2010). Finally, where factual findings are challenged, the habeas
petitioner has the burden of rebutting, by clear and convincing evidence, the presumption
that the state court’s factual findings are correct. See 28 U.S.C. § 2254(e)(1); Landrum,
625 F.3d at 914.

In conducting our review, we first address Goodwin’s cross-appeal, which
challenges the district court’s denial of habeas relief on three of his claims.

B. Ineffective Assistance in Guilt Phase

First, Goodwin contends his lead trial counsel, Thomas Shaughnessy, did not
afford him effective assistance of counsel because he conceded Goodwin’s guilt on all
charges during his opening statement and closing argument.1 To prevail on an
ineffective-assistance-of-counsel claim, Goodwin must satisfy both prongs of the
Strickland test: inadequate performance by defense counsel and prejudice resulting from
that deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). To
establish deficient performance, Goodwin must show that “counsel’s performance fell
below an objective standard of reasonableness.” Id. at 688. Scrutiny of counsel’s

1
Goodwin’s trial counsel team consisted Thomas Shaughnessy and Patrick D’Angelo.
Shaughnessy died in 1997.
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performance is highly deferential, however; every effort must be made to eliminate the
distorting effects of hindsight. Id. at 689. Goodwin is thus required to overcome the
“strong presumption” that the challenged action might be considered sound trial strategy.
Id. To establish prejudice, he must show “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Id. at 694. A “reasonable probability” is a “probability sufficient to undermine
confidence in the outcome.” Id.

Applying Strickland, the Ohio Supreme Court concluded that Goodwin’s
counsel’s opening and closing statements were neither deficient nor prejudicial because
“counsel’s statements appear to have been made to concede Goodwin’s participation in
the robbery, and to preserve credibility of the only plausible defense theory, given the
strong evidence against Goodwin—that despite Goodwin’s participation in the robbery,
he did not kill Mustafa.” Goodwin, 703 N.E.2d at 1259. Addressing prejudice, the Ohio
Supreme Court found none, because the evidence against Goodwin was overwhelming:

Goodwin told police he shot Mustafa. The only gun observed at the
crime scene that could have inflicted the fatal wound belonged to
Goodwin, and testimony indicated that it was Goodwin who had the gun
in his possession upon entering the market. Additionally, Goodwin made
sure his clothes were burned following the robbery.

Id. The district court held the Ohio Supreme Court’s application of Strickland was not
unreasonable.

1. Deficient Performance

Our review of the record confirms that Shaughnessy intended to concede
Goodwin’s involvement in the robbery, but disputed that Goodwin shot the victim and
deserved the death penalty. In his opening statement, Shaughnessy began by noting that
co-defendants Padgett and Johnson were originally charged with capital murder before
reaching plea agreements. He disputed the notion that they were motivated to tell the
truth, and instead argued that their true motive was to avoid the electric chair. He also
told the jury that Padgett and Johnson could be paroled after serving only nine and one-
Nos. 06-3571/3572 Goodwin v. Johnson Page 9

half years pursuant to the sentences recommended by the prosecutor. Shaughnessy said
he was not claiming that Goodwin was a good kid, had an alibi, or was misunderstood.
Instead, he told the jury:

You shouldn’t let him go, and as a matter of fact, when we get into it, and
you’ve heard the evidence, I’m going to suggest to you right from the
beginning that you should and you ought to, and as a matter of fact, let’s
go a little bit stronger than that, say that you must find him guilty.

Trial tr. p. 635, J.A. 1163. Shaughnessy continued by saying that all three men
participated in deciding that a quick way to get money would be to rob the market. The
trial, he said, was “about sending the right person to the electric chair if you think that
ought to be the proper punishment.” Id. at 637, J.A. 1165. Shaughnessy proposed that
after the jury heard the evidence, they would not convict Goodwin as the killer.

In his closing argument, Shaughnessy said it did not make any difference who
shot the victim under the jury instructions on aiding and abetting. He noted that all
three men went into the store and were equally responsible. Shaughnessy also told the
jury, “As to who pulled the trigger . . . you will consider that in the second trial.” Id. at
1426, J.A. 1233. He reminded the jury of inconsistencies in the testimony; pointed out
that the surviving clerk testified that Johnson appeared to be the ringleader; read portions
of the clerk’s testimony indicating that Goodwin was holding a gun to his head when the
fatal shot was fired at Mustafa; and argued that Padgett was more likely the one who
shot Mustafa. Shaughnessy then explained that, but for the law of aiding and abetting,
he would have been vehemently arguing that, although Goodwin was a robber, he was
not a killer, and he assured the jury they would have the opportunity to treat him as an
aider and abettor in the punishment phase.

The charges against Goodwin place Shaughnessy’s approach in perspective.
Goodwin was charged in the indictment, along with co-defendants Johnson and Padgett,
with two counts of aggravated murder under Ohio Rev. Code § 2903.01. The first count
charged the defendants with aggravated murder for having purposely and with prior
calculation and design caused the death of the victim, and included two death penalty
specifications, felony murder and firearm. The felony murder specification, under Ohio
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Rev. Code § 2929.04(A)(7), is based on the allegation that the murder was committed
during the commission of an aggravated robbery and that each defendant was either the
principal offender or acted with prior calculation and design. The second count, for
aggravated murder, charged each defendant with having purposely caused the death of
the victim while committing aggravated robbery. It contained the same specifications
as the first count. Under Ohio law, an accomplice can be convicted of aggravated
murder only if the evidence shows that the accomplice shared the criminal intent of the
principal. See State v. Herring, 762 N.E.2d 940, 947 (Ohio 2002). A defendant who
aids and abets the actual killer can be convicted of aggravated murder, but that finding
does not require the jury to find the defendant was the principal offender for purposes
of the death penalty specification. State v. Taylor, 612 N.E.2d 316, 325 (Ohio 1993).

We concur in the district court’s determination that the Ohio Supreme Court did
not apply Strickland unreasonably when it rejected Goodwin’s claim. Shaughnessy’s
strategy to concede guilt to aggravated robbery but argue that Goodwin did not kill the
victim was not deficient. See Florida v. Nixon, 543 U.S. 175, 189 (2004) (trial counsel’s
decision to concede guilt in the guilt phase of a capital trial held not necessarily
deficient). Counsel’s decision to concede guilt should be assessed under Strickland by
considering the evidence of defendant’s guilt and the chance to avoid execution. Id. at
191-92. The evidence of Goodwin’s guilt as an aider and abettor to aggravated robbery
was overwhelming, but the argument that Goodwin was not the trigger man bore some
hope of avoiding a guilty verdict on the death specifications. See Nixon, 543 U.S. at
191-92 (“Counsel therefore may reasonably decide to focus on the trial’s penalty phase,
at which time counsel’s mission is to persuade the trier that his client’s life should be
spared.”). Goodwin could not plausibly deny that he was part of the trio that robbed the
store, in view of his statements to the police and the testimony of Johnson, Padgett, and
the surviving clerk, all of whom placed him inside the store. Their testimony was not
entirely consistent, however. Hence, it was reasonable for Shaughnessy to point out
biases and inconsistencies in those witnesses’ testimony and to argue that Goodwin did
not shoot Mustafa and did not deserve the death penalty.
Nos. 06-3571/3572 Goodwin v. Johnson Page 11

Padgett denied going to the market with the specific intent that any store worker
be shot dead. Johnson testified about the plans to rob the store, but did not say they
planned to kill the clerk. Accordingly, Shaughnessy’s concession that Goodwin was
involved in the aggravated robbery was not a concession that he was guilty of aggravated
murder because none of the accomplices indicated that they intended to kill the victim.
The Ohio Supreme Court’s conclusion that Shaughnessy was trying to preserve the
credibility of the only plausible defense theory by being candidly realistic with the jury
was not unreasonable.

Shaughnessy did err in telling the jury that Goodwin was guilty of “all of the
charges in the indictment” and that the question of who shot the victim would not be
decided until the penalty phase. The charges in the indictment included the death
penalty specification that Goodwin was the principal offender or acted with prior
calculation and design, and the jury had to decide the death penalty specification in the
guilt phase. However, this error was one of semantics, not strategy. In his opening
statement, closing argument, and cross-examination of the state’s witnesses,
Shaughnessy consistently emphasized that although Goodwin was involved in the
robbery of the store, there was reasonable doubt that he was the one who shot the clerk.

2. Prejudice

Even if Shaughnessy’s errors were deemed to amount to deficient performance,
it is clear that Goodwin did not suffer prejudice cognizable under Strickland. First, there
was overwhelming evidence of Goodwin’s guilt as the principal offender. As the state
court found, Goodwin initially told the police that he shot the victim; the evidence
established that Goodwin had a .357 revolver while in the store; the bullet that killed the
victim matched Goodwin’s firearm but not the .45 semi-automatic held by Johnson; and
Goodwin’s clothes were stained with blood. Goodwin, 703 N.E.2d at 1254-56.
Although there is some evidence supporting the argument that Goodwin was not the
actual killer, it is not substantial.
Nos. 06-3571/3572 Goodwin v. Johnson Page 12

Further, it appears the trial court properly instructed the jury as to aggravated
murder, the death penalty specification, and accomplice liability. The jury instructions
cured any suggestion that Shaughnessy conceded Goodwin’s guilt as the principal
offender. The trial court instructed the jury that, in order to find Goodwin guilty of
aggravated murder, the jury had to find that Goodwin had the specific intent to kill the
victim. The court also instructed the jury that, in order to find that Goodwin was the
principal offender under the death penalty specification, the jury had to find that
Goodwin’s conduct directly produced the death of the victim. Finally, the court told the
jury that under accomplice liability, all persons who acted with a common purpose to
commit a crime were responsible for all of the crimes committed. These are all proper
instructions under Ohio law. With the aggravated murder and principal offender
instructions in mind, the jury could not have interpreted the accomplice liability
instructions to mean that Goodwin was guilty of aggravated murder as the principal
offender without finding that he in fact shot the victim intending to kill him. Goodwin
has not therefore shown that, but for Shaughnessy’s errors, there is a reasonable
probability the jury would not have found him guilty of the death penalty specification.

Goodwin also argues that Shaughnessy conceded that he acted with prior
calculation and design, the other component of the death penalty specification under
Ohio Rev. Code § 2929.04(A)(7). As discussed below, under Ohio law, “prior
calculation and design” means that “the purpose to cause the death was reached by a
definite process of reasoning in advance of the homicide, which process of reasoning
must have included a mental plan involving studied consideration of the method and the
instrument with which to cause the death of another.” Zuern v. Tate, 336 F.3d 478, 482
(6th Cir. 2003). The trial court defined prior calculation and design in the same terms.
There was ample evidence that Goodwin, Padgett, and Johnson planned and prepared
to rob the store at gunpoint, but no direct evidence that they intended to kill the clerk.
Thus, when Shaughnessy acknowledged Goodwin’s involvement in the decision to rob
the store, he did not concede his involvement in a plan to kill the clerk. Moreover, in
view of the correctness of the trial court’s instructions and the abundant evidence that
Goodwin was the principal offender, we are convinced that Goodwin was not prejudiced
Nos. 06-3571/3572 Goodwin v. Johnson Page 13

by any impression that Shaughnessy unwittingly conceded that Goodwin acted with prior
calculation and design. See Poindexter v. Mitchell, 454 F.3d 564, 581-82 (6th Cir. 2006)
(counsel not ineffective for conceding that state had proved elements of murder where
evidence of guilt was overwhelming).

C. Insufficient Evidence of Prior Calculation and Design

Goodwin claims that the state failed to meet its burden of proving that he killed
the victim with prior calculation and design, as required for a conviction under the first
count of the indictment against him. On direct appeal, the Ohio Supreme Court found
that the record evidence sufficiently supported the jury’s verdict. The record was
deemed to show that Goodwin: planned the robbery and recruited others to join him;
armed himself with a .357 revolver; placed the weapon to the forehead of a cooperative
and unresisting victim and pulled the trigger; and then, instead of fleeing after the
killing, placed the gun to the head of the other clerk and continued robbing the store.
The court concluded that Goodwin planned the robbery and used the murder to further
his plan:

It was an action that required thought on his part to place the gun at the
victim’s forehead, and he took additional time to decide to pull the
trigger in order to carry out a calculated plan to obtain money from the
store. This was not a spur-of-the-moment accidental shooting on the part
of a robber. . . . It is readily apparent from these facts that sufficient
time, reflection, and acts were involved to provide the necessary thought
processes that the law requires for a finding of prior calculation and
design.

Goodwin, 703 N.E.2d at 1263. The Ohio Supreme Court cited State v. Jenks, 574
N.E.2d 492, 503 (Ohio 1991), for its standard of review, which in turn relies on Jackson
v. Virginia, 443 U.S. 307 (1979). The district court agreed that the evidence was
sufficient to show prior calculation and design.

In assessing the sufficiency of the evidence, we must determine whether, after
reviewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.
Nos. 06-3571/3572 Goodwin v. Johnson Page 14

Jackson, 443 U.S. at 319; McKenzie v. Smith, 326 F.3d 721, 727 (6th Cir. 2003). “The
Jackson standard must be applied ‘with explicit reference to the substantive elements of
the criminal offense as defined by state law.’” Brown v. Palmer, 441 F.3d 347, 351 (6th
Cir. 2006) (quoting Jackson, 443 U.S. at 324 n.16). Under AEDPA, the task is to
determine whether it was objectively unreasonable for the Ohio Supreme Court to
conclude that a rational trier of fact, after viewing the evidence in the light most
favorable to the state, could have found beyond a reasonable doubt that Goodwin
committed the essential elements of aggravated murder under Ohio law. See 28 U.S.C.
§ 2254(d); Williams, 529 U.S. at 412-13; Saxton v. Sheets, 547 F.3d 597, 602 (6th Cir.
2008).

Ohio courts have identified a number of factors relevant to determining whether
a homicide was committed with prior calculation and design. These include:

whether the accused knew the victim prior to the crime, as opposed to a
random meeting, and if the victim was known to him whether the
relationship and [sic] been strained; whether thought and preparation
were given by the accused to the weapon he used to kill and/or the site
on which the homicide was to be committed as compared to no such
thought or preparation; and whether the act was drawn out over a period
of time as against an almost instantaneous eruption of events.

State v. Jenkins, 355 N.E.2d 825, 828 (Ohio App. 8 Dist. 1976). Prior calculation and
design requires evidence of more than a few moments of deliberation; it requires “a
scheme designed to implement the calculated decision to kill.” State v. Cotton, 381
N.E.2d 190, 193 (Ohio 1978). Although “[n]either the degree of care nor the length of
time the offender takes to ponder the crime beforehand are critical factors in
themselves,” momentary deliberation is insufficient. State v. D’Ambrosio, 616 N.E.2d
909, 918 (Ohio 1993) (quoting the 1973 Legislative Service Commission Comment to
Ohio Rev. Code § 2903.01). On the other hand, “[p]rior calculation and design can be
found even when the killer quickly conceived and executed the plan to kill within a few
minutes.” State v. Coley, 754 N.E.2d 1129, 1143 (Ohio 2001). The manner in which the
victim is killed may allow the jury to reasonably find that the defendant committed the
Nos. 06-3571/3572 Goodwin v. Johnson Page 15

crime with prior calculation and design. See State v. Palmer, 687 N.E.2d 685, 706 (Ohio
1997).

We have previously held the “prior calculation and design” requirement under
Ohio law was satisfied where “the purpose to cause the death was reached by a definite
process of reasoning in advance of the homicide, which process of reasoning must have
included a mental plan involving studied consideration of the method and the instrument
with which to cause the death of another.” Zuern, 336 F.3d at 482. “Prior calculation
and design exists where the defendant plans to kill any member of a certain class of
persons, even if he did not know in advance who the particular victim would be.” Id.

The evidence clearly established that Goodwin planned and directed the robbery.
Goodwin, 703 N.E.2d at 1254-55. A witness for the prosecution testified that Goodwin
purchased a .357 revolver from him approximately two weeks before the robbery.
Padgett and Johnson testified that Goodwin came up with the idea to rob the market and
directed their actions. Goodwin told Johnson he needed money and knew where the
money was kept in the market. Padgett said that he, Johnson and Goodwin went to
Goodwin’s home, where Goodwin retrieved the .357 revolver and Johnson retrieved a
.45 semi-automatic. Goodwin’s weapon was clearly loaded, as a firearms expert testified
that the bullet that killed the victim could not have come from Johnson’s weapon but
could have come from Goodwin’s. Goodwin entered the store first to see how many
people were inside, came outside, and then all three went in. Goodwin told Padgett to
distract the clerk by asking for cigars and Johnson was to act as a lookout. The surviving
clerk testified that Goodwin told him, “You are being robbed,” and that Goodwin told
Padgett and Johnson to “get the safe, get the bag.”

There is less evidence that Goodwin planned to murder the clerk. See id. at 1255.
Both Padgett and Johnson testified that Goodwin grabbed the victim, put a gun to his
head, demanded money, and shot him. The victim offered no resistance. The coroner
testified that the victim died from a bullet fired into his head at close range. Goodwin
grabbed the surviving clerk after shooting the victim and demanded to be taken to the
office safe. Padgett testified that when he asked Goodwin why he shot the clerk,
Nos. 06-3571/3572 Goodwin v. Johnson Page 16

Goodwin said the clerk reached for his mask and Goodwin thought the clerk saw his
face. Padgett, Johnson, and the surviving clerk testified that Goodwin and the others
were in the store for about five minutes.

We conclude that the Ohio Supreme Court did not apply Jackson unreasonably
when it held that, taking the evidence in the light most favorable to the prosecution, a
reasonable juror could have found that Goodwin killed the victim with prior calculation
and design. There was evidence that Goodwin planned to rob the market where the
victim worked, recruited accomplices, obtained a loaded handgun, and directed the
robbery once it began. These circumstances show reasoning in advance, a mental plan,
and consideration of the method, means and instrument needed to carry out that plan.
See Jenkins, 355 N.E.2d at 828. Although Goodwin did not have a strained relationship
with the victim, the clerk was within a class of persons Goodwin would have anticipated
being present at the store and having access to the store’s safe. See Zuern, 336 F.3d at
482.

The circumstances also support as reasonable the inference that Goodwin’s
decision to shoot the victim was not spur-of-the-moment or spontaneous. See id.;
Cotton, 381 N.E.2d at 193; Jenkins; 355 N.E.2d at 828. The victim did not resist when
Goodwin grabbed him, so a juror could reasonably conclude that Goodwin did not shoot
him as the result of a struggle. Goodwin completed the robbery after shooting the
victim, arguably supporting the inference that the shooting was not an unexpected turn
of events and that Goodwin planned to shoot the victim to facilitate the robbery.
Evidence that Goodwin placed the revolver to the victim’s head before shooting him also
supports a finding of prior calculation and design. See State v. Monroe, 827 N.E.2d 285,
296-97 (Ohio 2005); State v. Campbell, 738 N.E.2d 1178, 1193 (Ohio 2000); Palmer,
687 N.E.2d at 706.

We note that Goodwin was in the store for only five minutes. This is the weakest
link in the state’s case against Goodwin, since the amount of time elapsed seems closer
to “an almost instantaneous eruption of events” than an act “drawn out over a period of
time.” See Jenkins, 355 N.E.2d at 828. However, under Ohio law, prior calculation and
Nos. 06-3571/3572 Goodwin v. Johnson Page 17

design can be found even when the killer conceived and executed the plan to kill within
a few minutes. See Palmer, 687 N.E.2d at 706; State v. Taylor, 676 N.E.2d 82, 89-91
(Ohio 1997). Moreover, Goodwin clearly planned to rob the store, knew that he would
have to interact with the clerk to get the money out of the safe, put a loaded gun to the
clerk’s head, and pulled the trigger despite the clerk’s compliance. We cannot conclude
that the Ohio Supreme Court’s denial of this claim was contrary to or an unreasonable
application of clearly established federal law.

D. Jury Instruction on Lesser Included Offense

Goodwin argues that he was deprived of his constitutional rights when the trial
court failed to instruct the jury on the lesser included offense of involuntary
manslaughter. He contends the evidence that he did not mean to shoot the victim would
have permitted the jury to acquit him of aggravated murder but convict him of
involuntary manslaughter. This challenge is addressed to his conviction for felony
murder, Ohio Rev. Code § 2903.01(B).

Goodwin raised this claim on direct appeal, along with a claim that his trial
counsel was ineffective for failing to request an instruction on involuntary manslaughter
as a lesser included offense. The Ohio Supreme Court reviewed the underlying claim
for plain error because Goodwin did not request an instruction on involuntary
manslaughter as a lesser included offense in the trial court. Goodwin, 703 N.E.2d at
1265. Goodwin argued that because he did not mean to shoot the victim, because the
gun “just went off,” and because he drank gin the morning of the killing, the trial court
should have given an instruction on involuntary manslaughter. The Ohio Supreme Court
concluded the evidence established that Goodwin acted with prior calculation and design
and that the killing was done with purpose:

The evidence clearly establishes that Goodwin acted with prior
calculation and design in killing Mustafa. Under any reasonable view,
the killing was done with purpose. Goodwin fired a shot at point blank
range into Mustafa’s head. The testimony by the pathologist indicated
that death was virtually immediate. The location of this wound would
lead any reasonable trier of fact, who did not believe the gun discharged
Nos. 06-3571/3572 Goodwin v. Johnson Page 18

accidentally, to conclude that Goodwin acted with purpose in causing the
death of the victim. Additionally, Mustafa did not resist, cause panic, or
cause confusion, nor was there any other cause of panic or confusion.
Mustafa had his hands up. No reasonable juror who believed the state’s
version of the facts surrounding this shooting could have concluded that
the killing was not done purposely and with prior calculation and design
as that culpable mental state has been construed by this court.

Goodwin, 703 N.E.2d at 1265. Having found no plain error, the Ohio Supreme Court
also found that Goodwin’s trial counsel’s failure to request an instruction on involuntary
manslaughter was not ineffective assistance of counsel.

The district court acknowledged the state’s assertion that Goodwin procedurally
defaulted this claim, but also acknowledged that ineffective assistance of counsel can be
“cause” to excuse the procedural default. The court thus addressed the merits of the
claim and denied it. The court concluded that the trial court had not committed plain
error by failing to give the manslaughter instruction because the record supported a
finding that the shooting was intentional.

1. Procedural Default

Goodwin procedurally defaulted this claim because his attorney did not object
to the jury instructions at trial or propose alternative instructions. Ohio’s
contemporaneous objection rule is a firmly established procedural rule that is an
adequate and independent state ground to foreclose federal relief. Hinkle v. Randle, 271
F.3d 239, 244 (6th Cir. 2001). The Ohio Supreme Court conducted only plain error
review of Goodwin’s jury instruction claim. Goodwin, 703 N.E.2d at 1265. “[P]lain
error review by an appellate court constitutes enforcement of Ohio’s contemporaneous
objection rule.” Williams v. Bagley, 380 F.3d 932, 968 (6th Cir. 2004). Accordingly,
unless Goodwin can show cause for and prejudice from his default, he is not entitled to
habeas review of this claim.

Ineffective assistance of counsel can constitute cause to excuse a procedural
default. See Murray v. Carrier, 477 U.S. 478, 488 (1986); McFarland v. Yukins, 356
F.3d 688, 699 (6th Cir. 2004). If Goodwin’s trial counsel were ineffective for failing
Nos. 06-3571/3572 Goodwin v. Johnson Page 19

to request an instruction on involuntary manslaughter as a lesser included offense, he
could show cause to excuse his default of his substantive claim. See Edwards v.
Carpenter, 529 U.S. 446, 451 (2000). Goodwin’s ineffective-assistance-of-counsel
claim regarding jury instructions can have merit only to the extent that the underlying
claim has merit. See McFarland, 356 F.3d at 699-700. Accordingly, we review the
merits to determine both whether Goodwin’s default can be excused and whether the
substantive claim entitles him to relief.

2. Merits

Where a lesser included offense exists under state law in a capital case, an
instruction on the lesser included offense is required under the Eighth and Fourteenth
Amendments only when the evidence would warrant a finding of guilt on the lesser
included offense and an acquittal on the greater offense. Beck v. Alabama, 447 U.S. 625,
636 (1980); see also Campbell v. Coyle, 260 F.3d 531, 541 (6th Cir. 2001) (“[A]Beck
instruction is only required when ‘there was evidence which, if believed, could
reasonably have led to a verdict of guilt of a lesser offense,’ but not the greater.”
(quoting Hopper v. Evans, 456 U.S. 605, 610 (1982)). “The goal of the Beck rule, in
other words, is to eliminate the distortion of the fact-finding process that is created when
the jury is forced into an all-or-nothing choice between capital murder and innocence.”
Schad v. Arizona, 501 U.S. 624, 646-47 (1991). The Ohio Supreme Court cited State v.
Thomas, 533 N.E.2d 286, 289 (Ohio 1988), for the proposition that “[a]n instruction on
a lesser included offense is required only where the evidence presented at trial would
reasonably support both an acquittal on the crime charged and a conviction upon the
lesser included offense.” Goodwin, 703 N.E.2d at 1265. This is substantially the same
as the Supreme Court’s language in Beck and Hopper. Accordingly, the issue is whether
the Ohio Supreme Court’s application of Beck was objectively unreasonable. See 28
U.S.C. § 2254(d); Williams, 529 U.S. at 409; Campbell, 260 F.3d at 539-40.

Beck requires a comparison between the elements of the crime charged and the
elements of the lesser-included offense. Count 2 of the indictment charged Goodwin
with purposely causing the death of the victim while committing aggravated robbery.
Nos. 06-3571/3572 Goodwin v. Johnson Page 20

See Ohio Rev. Code § 2903.01(B). At the time of Goodwin’s trial, § 2903.01(B) stated
in relevant part: “No person shall purposely cause the death of another while
committing or attempting to commit, or while fleeing immediately after committing or
attempting to commit kidnapping, rape, aggravated arson or arson, aggravated robbery
or robbery, aggravated burglary or burglary, or escape.” Under § 2903.01(D), “No
person shall be convicted of aggravated murder unless he is specifically found to have
intended to cause the death of another.” Ohio’s statute on involuntary manslaughter
provides: “No person shall cause the death of another as a proximate result of the
offender’s committing or attempting to commit a felony.” Ohio Rev. Code
§ 2903.04(A). Involuntary manslaughter is a lesser included offense of aggravated
murder under§ 2903.01(A) and (B). Thomas, 533 N.E.2d at 288-89.

The distinguishing factor between aggravated murder and involuntary
manslaughter is the mental state involved. Id. at 289. These two mental states are
mutually exclusive; in any given killing, the offender can be possessed of only one. Id.
The mental state required for aggravated murder is “purposely.” Ohio’s criminal code
provides that “[a] person acts purposely when it is his specific intention to cause a
certain result. Ohio Rev. Code § 2901.22(A); see also Thomas, 533 N.E.2d at 290.
Accordingly, the question under Beck is whether the evidence would have permitted a
reasonable jury to find that Goodwin caused the death of the victim as a proximate result
of committing a felony but without specifically intending to cause the victim’s death.

We conclude that the Ohio Supreme Court’s application of Beck was not
unreasonable. After considering the paltry evidence held up as warranting a finding that
the killing of Mustafa was not intentional, the Ohio Supreme Court held that “[u]nder
any reasonable view, the killing was done with purpose.” Goodwin, 703 N.E.2d at 1265.
Hence, the court concluded that the involuntary manslaughter instruction was not
warranted by the evidence presented, that the failure to give the instruction was not plain
error, and that counsel’s failure to request the instruction did not constitute ineffective
assistance.
Nos. 06-3571/3572 Goodwin v. Johnson Page 21

As detailed above, there was extensive evidence that Goodwin was involved in
the events that led to the victim’s death. Goodwin, 703 N.E.2d at 1254-56. Padgett,
Johnson, and the surviving clerk all testified that Goodwin was one of the three who
robbed the store, and Goodwin admitted his involvement to the police. Jermaine Brown
testified that he sold a .357 revolver to Goodwin. Padgett testified that Goodwin
retrieved a .357 revolver from his house. Johnson and Padgett testified that Goodwin
placed the .357 revolver to the victim’s head. A firearms expert testified that the bullet
fragments recovered from the crime scene were consistent with a .357 revolver, but not
the weapon carried by Johnson. The coroner stated that the bullet wound on the victim’s
forehead was a contact wound, and Goodwin’s clothes were bloody. Although defense
counsel argued that Padgett killed the clerk, there was almost no evidence from which
a jury could have reasonably concluded that someone other than Goodwin held the .357
revolver that caused the victim’s death.

There was conflicting evidence concerning whether Goodwin intended to fire the
revolver, but not enough to justify an instruction on the lesser-included offense. On the
one hand, Goodwin directs attention to remarks that indicate the shooting was
unintentional. He did not testify at trial, but a statement he gave to the police was
admitted. Goodwin told Detective Kovasic that he pulled out his gun and pointed it at
the clerk and told him to take him to the safe, “and the next thing I knew, the gun just
went off.” When the detective asked Goodwin why he shot the clerk, Goodwin
responded: “I don’t know. I didn’t mean to.” Goodwin also said that he drank some gin
the morning of the robbery and “felt it a little.” In addition, Johnson testified that when
he and Padgett confronted Goodwin after the robbery, Goodwin said he did not mean to
shoot him.

On the other hand, this evidence of Goodwin’s self-serving statements is at odds
with the overwhelming weight of the evidence, which strongly suggests the shooting was
intentional. The witnesses agreed that Goodwin held the weapon that was used to kill
the victim. Padgett testified that when he asked Goodwin why he shot the clerk,
Goodwin said that the clerk reached for his mask and Goodwin thought the clerk saw his
Nos. 06-3571/3572 Goodwin v. Johnson Page 22

face. Padgett and Johnson testified that the victim put his hands in the air and did not
struggle or resist as Goodwin put the revolver to his head, and that Goodwin grabbed the
surviving clerk after shooting the victim. The surviving clerk heard the shot that killed
the victim before Goodwin grabbed him and took him to the office to open the safe. A
firearms expert for the prosecution testified that there are two ways of firing a revolver:
single action and double action. In the single action method, the hammer is pulled back
first and then the trigger is pulled to fire the weapon. In the double action method, the
trigger is pulled which first draws the hammer back and then drops the hammer on the
ammunition. The expert was not asked whether or how a revolver could discharge
accidentally, nor did Goodwin’s counsel put on any proof on this question. In either the
single action or the double action method, however, the trigger must be pulled. Further,
the location of the fatal wound works against a finding that the shooting was accidental.
There was thus no evidence from which a jury could reasonably conclude that Goodwin
proximately, but not intentionally, caused the revolver to fire. See Hopper, 456 U.S. at
610; Campbell, 260 F.3d at 541; Thomas, 533 N.E.2d at 289-91.

Accordingly, there was no basis for the jury to reasonably conclude that Goodwin
committed the robbery but lacked the purpose to kill the victim. Goodwin was therefore
not entitled to an instruction on the lesser included offense. Because Goodwin’s
underlying claim lacks merit, he cannot rely on ineffective assistance of counsel to
excuse his default of this claim. See Edwards, 529 U.S. at 451; McFarland, 356 F.3d
at 699-700. It follows, in other words, that the claim is procedurally defaulted,
precluding relief on the merits; but even if we were to reach the merits, they would be
found wanting.

E. Ineffective Assistance of Counsel at Sentencing

Next, we turn to the Warden’s challenge to the district court’s award of habeas
relief to Goodwin on one of his claims. Goodwin contends his trial counsel rendered
ineffective assistance at sentencing by failing to gather records, interview family
members, or otherwise investigate Goodwin’s background for potential mitigating
evidence, by failing to obtain the services of a psychologist and neuropsychologist, and
Nos. 06-3571/3572 Goodwin v. Johnson Page 23

by relying improperly on residual doubt in mitigation. An attorney’s failure to
reasonably investigate the defendant’s background and present mitigating evidence to
the jury at sentencing can constitute ineffective assistance of counsel. Wiggins v. Smith,
539 U.S. 510, 521-22 (2003). Defense counsel has a duty to investigate the
circumstances of his client’s case and explore all matters relevant to the merits of the
case and the penalty, including the defendant’s background, education, employment
record, mental and emotional stability, and family relationships. Powell v. Collins, 332
F.3d 376, 399 (6th Cir. 2003). “In assessing the reasonableness of an attorney’s
investigation, however, the court not only considers the quantum of evidence already
known to counsel, but also whether that evidence should lead a reasonable attorney to
investigate further.” Wiggins, 539 U.S. at 527. When counsel abandons an investigation
of the defendant’s background after having acquired only a rudimentary knowledge from
a narrow set of sources, this choice is not a “strategic decision” and does not constitute
the reasonable investigation required by Strickland. Wiggins, 539 U.S. at 527-28.
“[S]trategic choices made after less than a complete investigation are reasonable
precisely to the extent that a reasonable professional judgment supported the limitations
on the investigation.” Id. at 528 (quoting Strickland, 466 U.S. at 690-91).

The district court permitted discovery and held an evidentiary hearing on
Goodwin’s ineffective assistance of counsel claim. The court held that Goodwin’s trial
counsel’s mitigation investigation was inadequate and that the Ohio Court of Appeals’
and the Ohio Supreme Court’s contrary conclusion was the product of an unreasonable
application of Strickland. The court found that Goodwin’s counsel had little contact
with Goodwin and his family, that they did not obtain school, medical, and family
history records, and that their investigation was insufficient to make strategic decisions.
The court noted that although Goodwin’s counsel declined to present mitigation
evidence in an effort to avoid opening the record to evidence of Goodwin’s prior
criminal history, the record does not substantiate counsel’s presumption that Goodwin
had been involved in five armed robberies. The court further found that counsel’s
residual doubt strategy was deficient because Goodwin confessed to the police and an
inmate, witnesses identified Goodwin as the shooter, and the jury had found that
Nos. 06-3571/3572 Goodwin v. Johnson Page 24

Goodwin was the shooter in the guilt phase. The district court thus concluded that
Goodwin’s counsel’s choice to rely on residual doubt, uninformed by a reasonable
mitigation investigation, was not the result of a strategic choice between considered
alternatives.2 Ultimately, the court held that Goodwin was prejudiced by deficiencies
in his counsel’s performance because Goodwin was denied a meaningful opportunity to
present a mitigation case. The Warden challenges this ruling, contending the Ohio
courts did not unreasonably apply established federal law in denying Goodwin post-
conviction relief.

1. Mitigation Presentation in Sentencing Phase

At the close of the guilt phase, Goodwin’s trial counsel declined a court-ordered
presentence report and psychiatric evaluation because “there [was] nothing
psychiatrically wrong with him.” Counsel also chose not to present any evidence in the
mitigation phase. Patrick D’Angelo explained to the trial judge that they had thoroughly
prepared and evaluated the case, spoken to Goodwin and his family, and decided it
would be problematic to put on evidence because of the risk of opening the door to
otherwise inadmissible negative evidence. Lead attorney Thomas Shaughnessy
explained that the prosecution had evidence that Goodwin was involved in five prior
aggravated robberies. In his closing argument, Shaughnessy discounted Goodwin’s
youth as a mitigating factor. He also explained that he would not use psychiatrists,
psychologists, and social workers because it would insult the jury’s intelligence to
suggest one should get away with killing another because of a disadvantaged
background. Instead of presenting proofs in mitigation, Shaughnessy emphasized that
there were two other admitted participants in the robbery. He appealed to any residual
doubt the jurors had as to whether Goodwin was the shooter and urged them to consider
proportionality in sentencing, observing that Padgett and Johnson would be eligible for

2
The court also recognized that Goodwin’s counsel erred by arguing that the jury should not base
their sentencing decision on Goodwin’s age, but held this deficiency did not result in prejudice warranting
relief because the trial court properly instructed the jury that Godwin’s youth was a statutory mitigating
factor. Nonetheless, the district court recognized this deficiency as one more indication that counsel’s
performance at sentencing fell below reasonable standards. The district court’s ruling on counsel’s suspect
treatment of Goodwin’s age is not at issue in this appeal.
Nos. 06-3571/3572 Goodwin v. Johnson Page 25

parole after nine and a half years. Conceding that Goodwin was guilty of aggravated
robbery and aggravated murder as an aider and abettor, but contending Goodwin was not
the shooter, Shaughnessy urged the jury to recommend a sentence of life imprisonment
without possibility of parole until after thirty years’ imprisonment.

Goodwin’s aunt, Rosetta Goodwin, spoke in court after the jury returned its death
sentence recommendation but before the trial court sentenced him. Rosetta Goodwin
said that Goodwin did not deserve the death penalty because he was born drug-
dependent and he was abandoned by his mother when he was nine. Goodwin also
addressed the court at the time of sentencing. He apologized to the family of Mustafa
Sammour. He confessed that he was responsible for taking Mustafa’s life, but insisted
he had no intent to do so. Goodwin claimed the gun went off when he hit Mustafa with
it, in an effort to get Mustafa to take him to the safe.

2. Mitigation Evidence in Post-Conviction Proceedings

In his post-conviction petition, Goodwin contended that his trial counsel failed
to obtain information about him, failed to obtain reports and evaluations from
appropriate experts to use as evidence and render advice, failed to interview family
members, relatives and friends who could have provided background information and
testified at the mitigation hearing, and failed to provide sound advice to Goodwin
regarding the existence and presentation of mitigating factors. The exhibits Goodwin
attached to his post-conviction petition included an affidavit by an attorney expressing
his opinion regarding the performance of Goodwin’s trial counsel at sentencing, reports
from an investigator hired by Shaughnessy, jail visitation records, an affidavit by an
employee of the Ohio Public Defenders’ Commission concerning Shaughnessy’s use of
mitigating evidence in capital cases, an affidavit by Dr. Jeffery Smalldon, a forensic
clinical psychologist, an affidavit by Goodwin’s aunt Rosetta Goodwin, an affidavit by
Goodwin’s mother Callie Goodwin, an affidavit by Goodwin’s sister Mary Goodwin, an
affidavit by Goodwin’s neighbor Sharon Hickerson, an affidavit by Goodwin’s friend
Carmaletta Hickerson, an affidavit from Goodwin’s friend Tranita Ivory, an affidavit
from mitigation specialist Dorian Hall, a psychological evaluation of Goodwin
Nos. 06-3571/3572 Goodwin v. Johnson Page 26

performed by the Mental Development Center at Case Western Reserve University in
1990, Goodwin’s juvenile court records, Goodwin’s medical records, Goodwin’s
mother’s medical records, a substance abuse assessment, Goodwin’s educational records,
and other materials.

In the district court, the parties deposed clinical psychologist Dr. Laurel Schauer,
psychologist Dr. James Eisenberg, attorney Patrick D’Angelo, mitigation supervisor
Dorian Hall, investigator David Hicks, and psychologist Dr. Jeffrey Smalldon.
D’Angelo, Hall, and Smalldon also testified in the evidentiary hearing held by the
district court.

D’Angelo testified in deposition that Goodwin’s case was a terrible one from the
defense standpoint because Goodwin confessed, his accomplices identified him as the
shooter, and the surviving clerk witnessed the crimes. D’Angelo and Shaughnessy
unsuccessfully lobbied the prosecutor to remove the death penalty as a possible
punishment. According to D’Angelo, there was nothing about Goodwin’s demeanor or
interaction with counsel that indicated the existence of a psychiatric issue, so they did
not think a psychiatrist was needed. D’Angelo testified that they did not have Goodwin
evaluated independently, did not know his IQ, and did not review his school records.
D’Angelo recalled that trial counsel spoke with members of Goodwin’s family, but could
not identify which ones.

D’Angelo stated that Shaughnessy determined that residual doubt was the best
strategy to save Goodwin’s life. He was concerned that presenting mitigating evidence
about Goodwin’s background could open the door to the admission of Goodwin’s
juvenile record. Shaughnessy believed the prosecutor was lining up witnesses to testify
about five robberies Goodwin had committed. When asked why Shaughnessy told the
jury to disregard Goodwin’s age and background, D’Angelo said the strategy was to gain
credibility with the jury and avoid the possibility that the jury would see Goodwin’s past
as predictive of his later behavior. D’Angelo testified to similar effect at the evidentiary
hearing in the district court.
Nos. 06-3571/3572 Goodwin v. Johnson Page 27

Goodwin’s aunt, Rosetta Goodwin, stated in her affidavit that she believed
Goodwin’s mother, Callie (Rosetta’s sister), used drugs when she was pregnant with
Goodwin and that he was born with a drug addiction. She stated that Goodwin was
abused by his father and his step-father. Aunt Rosetta took Goodwin in when his mother
kicked him out at age twelve. She had begun fighting for custody of Goodwin when he
was eleven and was finally awarded custody when he was seventeen. Rosetta wanted to
testify at the penalty phase, but Shaughnessy refused to permit it. Shaughnessy spoke
to her only twice, and no investigators contacted her.

Goodwin’s mother admitted using marijuana from age twelve and alcohol from
age eighteen. She said that Goodwin’s father was an alcoholic, mentioned Goodwin’s
need for intestinal surgery shortly after birth, and stated that Goodwin’s father was in
prison from the time Goodwin was three until he was a teenager. No one from
Goodwin’s defense team contacted her. Goodwin’s sister reported that their mother used
cocaine a few times, but was “always either drinking or smoking marijuana.” She stated
that she and Michael had witnessed their mother being beaten and abused by various
male friends. No one from Goodwin’s defense team contacted her. Neighbors and
friends described incidents from Goodwin’s childhood and said that no one contacted
them about Goodwin’s trial.

The juvenile court records collected extend from April 1988 to January 1992.
The records describe both Goodwin’s offenses and his home life. Probation officers
found that his mother was unable to care for or manage him because of her drug use, that
his step-father had abdicated all responsibility, and that he did better in his aunt’s
custody but later defied her discipline. During this period, Goodwin was found to have
trafficked in drugs, stolen cars, abused alcohol, acted out in school, failed to appear in
court, gone “AWOL” from a juvenile detention center, and participated in a gang. The
only formal delinquency adjudication in the record stems from Goodwin’s court
appearance on April 1, 1991, when he faced charges of aggravated burglary, aggravated
robbery, drug abuse, and receiving stolen property. Assisted by counsel, Goodwin had
admitted responsibility for amended charges of criminal trespass, drug abuse, and
Nos. 06-3571/3572 Goodwin v. Johnson Page 28

robbery. Finally, a substance abuse assessment was prepared in January 1992 by the
youth services department in connection with a charge of robbery. The assessment
concluded that Goodwin had a serious drug problem and needed treatment.

Goodwin’s education records include a psychological report prepared in January
1989, when Goodwin was fourteen. The report indicated that Goodwin had an IQ of
seventy-three and would be expected to perform at a level considerably lower than same-
aged peers. His reading and math skills fell in the second, third, and fourth grade range.
The record also contains a special education evaluation from January 1989, an
Individualized Education Program report from 1991, and report cards showing excessive
absences and failing grades.

Clinical psychologist Laurel Schauer testified in deposition that she examined
Goodwin in 1990 when he was fifteen years old in connection with a juvenile court case.
She noted that Goodwin was in developmentally handicapped classes at school but was
not attending regularly and was doing poorly. Dr. Schauer administered psychological
tests and found that Goodwin was in the borderline range of intellectual functioning,
having an IQ of between seventy and eighty-five. Dr. Schauer recommended a strong
intervention and remediation program. Her primary diagnosis was conduct disorder,
noting that Goodwin took and sold drugs and went joy riding in cars. Dr. Schauer
suggested the possibility of dysthymia (despondency), although Goodwin denied being
depressed and she found no reason to suspect major depression.

Dr. James Eisenberg, a clinical and forensic psychologist with significant
experience in capital cases, reviewed records associated with Goodwin’s case but did not
examine him. Dr. Eisenberg testified to the significance of Goodwin’s school records,
family background, and psychological assessments, all of which, in his opinion,
indicated “severe emotional and psychological and intellectual impairment.” He
believed the records substantiated the necessity of retaining the services of a
psychologist, psychiatrist, social worker or other mitigation specialist to prepare for the
sentencing phase of a capital case. Having had prior experience with Goodwin’s lead
Nos. 06-3571/3572 Goodwin v. Johnson Page 29

counsel Thomas Shaughnessy, Dr. Eisenberg characterized his attitude toward the
mental health profession as one of “disdain and distrust.”

Dorian Hall, a licensed social worker with the Ohio Public Defenders’
Commission, testified in deposition as a mitigation specialist. She testified about how
mitigation investigations should be performed and described the records she reviewed
in Goodwin’s case. Hall supervised the post-conviction mitigation investigation in
Goodwin’s case, but did not speak to Goodwin or his family. At the evidentiary hearing,
the district court accepted Hall as an expert witness. She testified that a mitigation
investigation should begin three months before jury selection, and should include talking
to people who know the defendant and collecting records about him. Hall stated that the
information gathered about Goodwin’s background in post-conviction proceedings,
evidencing a dysfunctional family background and an IQ between mental retardation and
low level intelligence, indicated a need for a psychologist to assist in preparing for
mitigation.

Dr. Jeffrey Smalldon, clinical psychologist and forensic consultant, testified in
deposition that he was asked to review Goodwin’s case in 1996. He reviewed
Goodwin’s medical, educational, and juvenile court records; interview summaries
prepared by the Ohio Public Defenders’ staff; newspaper clippings; the report prepared
by Dr. Schauer; and Goodwin’s mother’s medical records. In assessing Goodwin’s
childhood environment, Dr. Smalldon considered it significant that Goodwin’s mother
had been a victim of incest when she was only eleven or twelve, had become pregnant
with Goodwin’s older half-sister after being raped by her father, and gave birth to
Goodwin when she was just sixteen. The records showed that she had an extensive
history of alcohol and drug abuse, prostitution, and unstable relationships with men
before kicking Goodwin out of the home, in his underwear on a rainy night, at around
age twelve. He never returned. Goodwin’s father’s influence in his life was no better.
Dr. Smalldon noted that he was never married to Goodwin’s mother and was in and out
of prison throughout Goodwin’s formative years. He engaged in drug abuse and
antisocial behavior. There was evidence that he once had one of his girlfriends perform
Nos. 06-3571/3572 Goodwin v. Johnson Page 30

oral sex on Goodwin when he was just five years old. The father died when Goodwin
was sixteen.

Dr. Smalldon met with Goodwin three times, comprising some ten to twelve
“face-to-face hours,” and administered several psychological assessments. Goodwin
reluctantly disclosed to him that he had been subjected to multiple episodes of sexual
abuse by an older male relative when he was seven to nine years old. Goodwin
frequently witnessed violence between his mother and her various boyfriends. He also
reported having been beaten over the years with chains and leather straps by multiple
adults who moved in and out of the family household.

Dr. Smalldon found that Goodwin’s IQ was on the borderline between mild
mental retardation and low average intelligence. He noted that Goodwin was identified
as developmentally handicapped and left school in the tenth grade, although his
achievement results reflected intellectual functioning at the third or fourth grade level.
Dr. Smalldon noted that Goodwin had significant learning problems that were not helped
by his chaotic home life, where he was exposed to physical and sexual abuse. Dr.
Smalldon concluded that Goodwin would have been very immature at age nineteen. Dr.
Smalldon also found that Goodwin showed signs of mild organic brain impairment,
possibly caused by poor prenatal care, blows to the head, failure to thrive as an infant,
and use of alcohol and drugs. Dr. Smalldon explained that Goodwin’s problems would
lead to difficulties generating effective problem-solving strategies, deficits in self-
regulation, increased impulsivity, and problems in abstract concept formation.
Considering his poor adaptive skills, his intellectual deficits and his chaotic family
background, Dr. Smalldon stated that Goodwin’s age should have been viewed as a
significant factor in evaluating his ability to make judgments with an eye toward the
long-term future. In his opinion as a forensic psychologist, the mitigation investigation
and presentation in Goodwin’s case fell below minimal levels of acceptability.
Nos. 06-3571/3572 Goodwin v. Johnson Page 31

3. Deficient Performance

Initially, we note that Goodwin’s trial counsel’s reliance on the residual doubt
strategy at the penalty phase was not deficient performance per se. See Lockhart v.
McCree, 476 U.S. 162, 181 (1986) (recognizing the strategy as “an extremely effective
argument for defendants in capital cases”). Residual doubt was recognized as a valid
mitigation theory in Ohio at the time of Goodwin’s trial, but has since been rejected by
the Ohio Supreme Court. See State v. McGuire, 686 N.E.2d 1112, 1123 (Ohio 1997).
Moreover, there was some evidence to support Shaughnessy’s argument that Goodwin
was not the trigger man, and that Padgett and Johnson agreed to testify against Goodwin
to avoid the death penalty. Accordingly, had counsel’s choice to rely on residual doubt
been an informed one, it may have been the best decision under the circumstances. See
Scott v. Mitchell, 209 F.3d 854, 881-82 (6th Cir. 2000) (noting in dicta that the decision
to pursue the residual doubt strategy was not unreasonable where counsel conducted
research into the available mitigating testimony and wanted to avoid opening the door
to evidence of the petitioner’s extensive criminal history).

In this case, however, Goodwin’s trial counsel chose to rely on residual doubt
without conducting an adequate investigation of Goodwin’s background. D’Angelo and
Shaughnessy told the trial court that they had thoroughly prepared and evaluated the case
and had spoken to Goodwin and his family before deciding not to present mitigation
evidence. However, only Goodwin’s aunt said that she had spoken to counsel.3 The rest
of Goodwin’s family—including his mother, his sister, his neighbor, his friend, and the
mother of his child—testified that at no time during the trial did attorneys or
investigators try to contact them or ask them to testify on Goodwin’s behalf. Indeed,
D’Angelo had only a limited recollection of conversations with some family members.
D’Angelo later conceded that defense counsel did not review Goodwin’s school records,
did not have him evaluated, and did not go to family members’ homes to interview them.

3
Goodwin’s aunt testified that, “Mr. Shaughnessy only spoke to me two times during the trial and
no investigators came to see me or anyone else in my family concerning Michael’s case.” (J.A. 402.)
Furthermore, Goodwin’s aunt did speak at Goodwin’s sentencing before the judge, but she stated that
Goodwin’s “attorneys did not prepare me for this and I was very nervous.”
Nos. 06-3571/3572 Goodwin v. Johnson Page 32

Had Goodwin’s counsel interviewed Goodwin’s family, they would have learned that
he was neglected by his drug-using mother and physically and sexually abused by others.
Had they examined his school records, they would have learned about his poor school
performance and low IQ. Had counsel examined Goodwin’s juvenile court records, they
would have learned of his psychological problems and how his chaotic home life
contributed to his delinquency. All of this information, in turn, would have suggested
the need to have Goodwin psychologically evaluated.

The information Goodwin’s counsel possessed, obviously incomplete, should
have triggered a more thorough investigation of Goodwin’s past. Indeed, an
examination of his past records, or further investigation with family members, would
have revealed and corroborated the true extent of Goodwin’s past difficulties and
provided a wealth of mitigation evidence. The decision of Goodwin’s trial counsel to
forgo further investigation after the limited investigation they undertook was not an
exercise of reasonable professional judgment, because trial counsel had little knowledge
of Goodwin’s background and the knowledge they did have should have triggered
further investigation. Their decision not to present a mitigation case at all, without
conducting a reasonable investigation to determine what mitigation evidence might be
available, was clearly constitutionally deficient. See Sears v. Upton, — U.S. —, 130
S.Ct. 3259, 3262-64 (2010) (counsel’s performance deemed deficient where they failed
to discover evidence that defendant had grown up in an abusive home environment, had
been sexually abused by a male cousin, was learning disabled, suffered from pronounced
frontal lobe pathology, and had diminished judgment and reasoning skills); Porter v.
McCollum, — U.S. —, 130 S.Ct. 447, 453 (2009) (counsel’s performance deemed
deficient where defendant’s school, medical and military service records were not
obtained and family members not interviewed); Rompilla v. Beard, 545 U.S. 374, 383-90
(2005) (where defendant refused to cooperate with mitigation investigation, counsel had
detailed discussions with family members, and counsel reviewed three mental health
experts’ reports, investigation nonetheless deemed inadequate for failure to explore
school records, prior criminal record and history of alcohol abuse); Wiggins, 539 U.S.
at 527-28 (counsel’s decision not to present mitigation proofs after inadequate
Nos. 06-3571/3572 Goodwin v. Johnson Page 33

investigation held deficient); Mason v. Mitchell, 543 F.3d 766, 780 (6th Cir. 2008)
(partial but incomplete mitigation investigation deemed inadequate); Jells v. Mitchell,
538 F.3d 478, 493-97 (6th Cir. 2008) (same). Thus, defense counsel’s decision to rely
on residual doubt and not present any mitigation evidence to the jury, although based on
the belief that the jury would be more receptive to residual doubt and proportionality
arguments, was reached without complete knowledge of Goodwin’s mental health status
and family background and was objectively unreasonable.

Goodwin’s counsel’s assessment that presenting mitigation evidence would have
opened the door to evidence that he committed five aggravated robberies was
uninformed and apparently erroneous. First, as the district court noted, the juvenile court
documents in the record do not show that Goodwin was ever even charged with five
aggravated robberies. Because counsel waived Goodwin’s right to preparation of a
presentence report, the nature and extent of Goodwin’s prior involvement in criminal
activity appears not to have been ascertained. Neither Shaughnessy at the time of trial,
nor D’Angelo in post-conviction proceedings, indicated that they actually reviewed
Goodwin’s criminal record. Shaughnessy appears to have believed the prosecution had
evidence that Goodwin had been involved in five aggravated robberies, but the record
does not substantiate this belief. The record shows that Goodwin was charged in three
complaints in 1990 and 1991 with: (a) receiving stolen property; (b) receiving stolen
property and aggravated robbery; and (c) aggravated burglary and drug abuse. Goodwin
admitted committing, and was only adjudged delinquent on, two charges of robbery and
one charge of criminal trespass.

It thus appears that Goodwin’s counsel based their decision to forgo presenting
mitigation evidence on incomplete, erroneous information and unsupported supposition.
A reasonable investigation would have disclosed that the risk of opening the door to
evidence of Goodwin’s juvenile delinquency was not nearly as great as presumed. Had
counsel obtained accurate information, they might very well have employed a different
approach to mitigation in the sentencing phase. To the extent their choice was instead
based on incomplete knowledge of Goodwin’s record of delinquency, their decision was
Nos. 06-3571/3572 Goodwin v. Johnson Page 34

not strategic. See Wiggins, 539 U.S. at 527-28.4 Consequently, it was not an informed
decision, and defense counsel’s performance at sentencing was inadequate.

The Ohio Court of Appeals, the last state court to assess the sufficiency of trial
counsel’s mitigation investigation, considered the “new evidence” presented by
Goodwin in collateral proceedings. See Goodwin, 1999 WL 342305. This new evidence
included evidence that Goodwin: was borderline mentally retarded and showed signs of
organic brain impairment; had a low education level; was involved in gang and criminal
activity from a young age; had an unstable home life and was exposed to drug use,
alcoholism, and prostitution by his mother before she forced him out of the home; was
neglected and abused by his step-father; and had been exposed by his father to sexual
abuse, drug use, and criminal behavior. The Ohio Court of Appeals held this was
essentially the same sort of evidence as the mitigation evidence presented on direct
appeal (i.e., relating to Goodwin’s drug-dependent birth, mental abuse by his mother,
and physical problems stemming from an intestinal birth defect). The court therefore
declined to revisit the determination made on direct appeal that Goodwin’s trial counsel
had made a reasonable tactical decision to not present mitigating evidence. Id. at *6-7.

However, this new evidence is clearly not the same. The wealth of affidavits and
new information presented in collateral proceedings show that, while Goodwin’s trial

4
Moreover, it is possible that Goodwin’s counsel could have presented evidence concerning
Goodwin’s IQ, his psychological problems, and the abuse and neglect he suffered without opening the door
to evidence of his juvenile delinquency—as long as no defense witness misrepresented Goodwin’s criminal
history.
Under Ohio law, the prosecution is entitled to rebut mitigating factors asserted by the defendant
or false or incomplete statements regarding the defendant’s criminal record. State v. Gumm, 653 N.E.2d
253, 257 (Ohio 1995); State v. DePew, 528 N.E.2d 542, 555 (Ohio 1988). This court has interpreted Ohio
law similarly. See Durr v. Mitchell, 487 F.3d 423, 436-37 (6th Cir. 2007); Carter v. Mitchell, 443 F.3d
517, 531-32 (6th Cir. 2006). However, where neither the defendant nor any mitigation witness
misrepresents the defendant’s criminal history, it is improper for the prosecutor to rebut the mitigation
through evidence of defendant’s criminal history. See Mason v. Mitchell, 543 F.3d 766, 781 (6th Cir.
2008); State v. Durr, 568 N.E.2d 674, 684 (Ohio 1991). It follows that Goodwin’s counsel, if they
presented information about his background without misrepresenting it, would not have opened the door
to evidence of Goodwin’s juvenile delinquency.
In any event, counsel’s assessment of the prejudicial effect of Goodwin’s record of delinquency
seems exaggerated. Inasmuch as the jury had already found that Goodwin murdered the store clerk by
shooting him in the head at point-blank range, the notion that evidence of Goodwin’s involvement in
relatively minor robbery offenses as a fifteen-year old would have undermined any mitigation evidence
is suspect. Still, and most importantly, Goodwin’s counsel decided not to risk opening the door to
evidence of the aggravated robberies without even undertaking a reasonable investigation to determine
what mitigating evidence was available. Because reasonable professional judgment would not support
such limitations on the investigation, counsel’s choice was not reasonable. See Wiggins, 539 U.S. at 528.
Nos. 06-3571/3572 Goodwin v. Johnson Page 35

counsel were aware of some limited information, they failed to conduct an investigation
that would have quickly revealed much more powerful mitigation
evidence—information that was necessary to make a reasonable professional judgment
as to whether to present a mitigation defense. It was objectively unreasonable for the
state court to conclude that this evidence was substantially similar to evidence presented
on direct appeal, and to conclude, after examining the wealth of new mitigating evidence
that Goodwin’s trial counsel failed to discover, that their performance was adequate.
Instead, it is clear that the assistance of counsel Goodwin received in the penalty phase
fell below the acceptable standard.

4. Prejudice

Counsel’s performance deficiency warrants relief, however, only if it is shown
to have resulted in prejudice. To show prejudice, Goodwin must prove that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. (“The assessment
of prejudice should proceed on the assumption that the decisionmaker is reasonably,
conscientiously, and impartially applying the standards that govern the decision.”).
When a petitioner challenges a death sentence, “the question is 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 have concluded that
the balance of aggravating and mitigating circumstances did not warrant death.” Id. at
695. Thus, Goodwin bears the burden of showing a “probability sufficient to undermine
confidence in the outcome,” but he does not need to prove that “counsel’s unreasonable
performance more likely than not altered the outcome in the case.” Id. (internal quotation
marks omitted). To show prejudice resulting from counsel’s deficient mitigation
investigation, the petitioner must present new evidence that differs both in strength and
subject matter from the evidence actually presented at sentencing, not just cumulative
mitigation evidence. Bobby v. Van Hook, — U.S. —, 130 S.Ct. 13, 19-20 (2010); Broom
v. Mitchell, 441 F.3d 392, 410 (6th Cir. 2006). In assessing prejudice, we reweigh the
evidence in aggravation against the totality of available mitigating evidence, both that
Nos. 06-3571/3572 Goodwin v. Johnson Page 36

adduced at trial and that adduced in post-conviction proceedings. See Wiggins, 539 U.S.
at 534-36. Under Ohio law, to establish prejudice, Goodwin need only show “a
reasonable probability that one juror would have voted against death had defense counsel
presented mitigation evidence.” Williams v. Anderson, 460 F.3d 789, 804 (6th Cir.
2006) (citing State v. Robb, 723 N.E.2d 1019, 1044 (Ohio 2000)).

The last Ohio court to review the matter was the Ohio Court of Appeals in state
post-conviction proceedings. See Goodwin, 1999 WL 342305. The court considered the
mitigating evidence presented by Goodwin and held that “[t]he evidence that allegedly
would have been offered was simply more of the same type of evidence that the Ohio
Supreme Court has held does not mitigate the aggravating circumstances of a
‘senselessly cruel aggravated murder in the course of an aggravated robbery.’” Id. at *6
(quoting and discussing State v. Williams, 600 N.E.2d 298, 303 (Ohio App. 8 Dist.
1991)). The court thus concluded that the failure to present mitigation evidence during
the penalty phase did not result in prejudice, finding that its decision was largely
determined by State v. Williams and the state courts’ prior determinations on direct
appeal. Id. at *6. The district court ruled that the Ohio Court of Appeals’ decision
represented an unreasonable application of Strickland. We agree.

First, State v. Williams is distinguishable—in terms of both the severity of the
aggravating circumstances and the strength of the mitigation proofs. The crime in
Williams involved multiple blunt force injuries to the head and neck of a seventy-six-
year-old woman prior to death by a single gunshot to the victim’s face during a robbery
of her home; whereas the instant murder, though senseless, did not involve such flagrant
and gratuitous brutality. In addition, the new mitigation evidence presented in post-
conviction proceedings in Williams (involving no evidence of sexual or physical abuse,
drug use, abandonment by mother, etc.) was much less powerful than the mitigation
evidence presented in post-conviction proceedings in this case. Strickland clearly
requires an individualized weighing of aggravating and mitigating factors; reliance on
a prior, clearly distinguishable decision like Williams represents weak support for the
Ohio Court of Appeals’ determination.
Nos. 06-3571/3572 Goodwin v. Johnson Page 37

Also unreasonable is the Ohio Court of Appeals’ assessment that the “new”
mitigating evidence was generally similar to the “old” mitigating evidence presented on
direct appeal. The evidence presented in post-conviction proceedings was different from
and much stronger than the evidence presented on direct appeal. The old evidence
merely showed Goodwin’s “drug-dependent birth, mental abuse by his mother, and some
sort of physical problem with the development of his intestines at birth.” Goodwin, 1997
WL 186770 at *9. The new evidence presented in post-conviction proceedings was
much more extensive, powerful, and corroborated.

Upon undertaking this reweighing of all the evidence, we find that Goodwin has
met his burden of showing he was prejudiced by his counsel’s failure to present
mitigating evidence in the penalty phase. The aggravating circumstance is that Goodwin
committed aggravated murder while committing aggravated robbery and either was
found to be the principal offender or to have acted with prior calculation and design.
More pointedly, the jury heard evidence that Goodwin placed a gun to the head of a
compliant victim, Mustafa Sammour, and fatally shot him. The mitigation evidence,
which was never presented to the jury, showed that Goodwin, nineteen years old at the
time of the offense: (1) was borderline mentally retarded; (2) had a low educational level
and was involved in criminal activity at a young age; (3) showed signs of organic brain
impairment that resulted in diminished judgment and impulse control; (4) had an
unstable home life and was raised by a young mother whose life was fraught with
abusive relationships and substance abuse before she forced him out of her home;
(5) was physically abused by his mother’s boyfriends; and (6) was exposed by his father
to sexual abuse, drug use, and criminal behavior before he died. While this reweighing
exercise necessarily entails some measure of speculation, see Sears, 130 S.Ct. at 3266-
67, considering that Goodwin’s counsel chose to present no mitigation evidence at all
in the penalty phase, after making a clearly inadequate investigation, we have little
trouble finding a reasonable probability that at least one juror would have voted against
death had defense counsel attempted to humanize Goodwin by presenting evidence of
the hardships and disadvantages he faced growing up.
Nos. 06-3571/3572 Goodwin v. Johnson Page 38

This is not a case in which the new evidence “would barely have altered the
sentencing profile presented to the sentencing judge [and jury].” Porter, 130 S.Ct. at
454 (quoting Strickland, 466 U.S. at 700). At Goodwin’s original sentencing, like
Porter’s, the judge and jury “heard almost nothing that would humanize [Goodwin] or
allow them to accurately gauge his moral culpability.” Id. Had Goodwin’s counsel
conducted a reasonable mitigation investigation and made an informed decision about
the penalty phase strategy, there is a reasonable probability they would have presented
evidence of the kind of troubled history the Supreme Court has declared “relevant to
assessing a defendant’s moral culpability.” Id. (quoting Wiggins, 539 U.S. at 535); see
Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (“[E]vidence about the defendant’s
background and character is relevant because of the belief, long held by this society, that
defendants who commit criminal acts that are attributable to a disadvantaged background
. . . may be less culpable than defendants who have no such excuse.”). In Porter, the
Court went on to hold that counsel’s failure to discover and present mitigation evidence
remarkably similar to the evidence here at issue (i.e., evidence of defendant’s history of
childhood physical abuse, brain abnormality, difficulty reading and writing, and limited
schooling) resulted in cognizable prejudice under Strickland. Id. Moreover, in
reweighing the evidence, the Court noted the importance of measuring the seriousness
of the aggravating circumstances in assessing the probability that the new mitigating
evidence would tip the scale in favor of a different outcome. Id. It follows that where,
as here, the murder committed by Goodwin, though senseless and deplorable, was not
otherwise especially heinous or atrocious, the probability that the new evidence would
tip the balance is commensurately greater.

The circumstances of this case are similar to those that the Supreme Court has
held sufficient to make out the requisite showing of prejudice. In Williams v. Taylor,
529 U.S. 362 (2000), after Williams’ victim refused to give him money, Williams
“wanted to get back at him.” Id. at 368. To do this, Williams went into the bathroom,
found a mattock (a sort of pickaxe) and struck his victim on the chest and the back with
it while he lay on his bed. Williams then took the victim’s wallet. The Court noted that
“the graphic description of Williams’ childhood, filled with abuse and privation, or the
Nos. 06-3571/3572 Goodwin v. Johnson Page 39

reality that he was ‘borderline mentally retarded,’ might well have influenced the jury’s
appraisal of his moral culpability.” Id. at 398. Here, as in Williams, the mitigation
evidence showed that Goodwin endured a childhood filled with abuse and privation and
that he was borderline mentally retarded.

In Wiggins, defense counsel failed to discover and present “powerful” mitigating
evidence showing that the defendant “experienced severe privation and abuse in the first
six years of his life while in the custody of his alcoholic, absentee mother;” that he
“suffered physical torment, sexual molestation, and repeated rape during his subsequent
years in foster care;” that he had “diminished mental capacities” and was homeless for
a period of time. 539 U.S. at 535. The Court concluded that, “had the jury been
confronted with this considerable mitigating evidence, there is a reasonable probability
that it would have returned with a different sentence.” Id. at 536.

In this case, the mitigation evidence showed that Goodwin also faced severe
privation and abuse in the early years of his life and while in the custody of his alcoholic
and drug using mother. There was evidence that he was frequently beaten, sexually
molested , and abandoned by both of his parents. In addition, Goodwin was kicked out
of his home and, consequently, got involved with criminal activity. Wiggins, in
particular, shows that the weighing conducted by the Ohio Court of Appeals in state
post-conviction proceedings was contrary to Strickland. The mitigating evidence in
Wiggins is not materially distinguishable from that eventually uncovered in Goodwin’s
case. Furthermore, the aggravating circumstances against which the mitigating evidence
must be weighed are comparable in both cases—Wiggins having drowned an elderly
woman and Goodwin having shot a non-resisting store clerk.

Our own circuit precedents also support our finding that Goodwin was prejudiced
by his counsel’s failure to present this mitigating evidence. Two cases, in particular, are
factually analogous. In Mason v. Mitchell, the defendant raped and beat a woman to
death using a board with protruding nails. 543 F.3d at 769. The court reviewed the Ohio
courts’ imposition of the death sentence and considered mitigating evidence showing
that:
Nos. 06-3571/3572 Goodwin v. Johnson Page 40

Mason’s father ran a prostitution ring for three years, that he operated a
home-based drug business with ten employees selling drugs for him, that
both of Mason’s parents were daily drug users as well as traffickers, that
Mason’s mother shot his father because of his involvement with
prostitution, and that Mason’s parents regularly abused Mason and
isolated all of their children from anyone not associated with the parents’
drug dealing activities. . . . Further, the evidence demonstrated that
Mason had experimented with drugs as an eight-year-old, that Mason’s
father took him along on trips to purchase and sell drugs while Mason
was in the sixth and seventh grades, and that Mason had a borderline
personality disorder largely as a result of his dysfunctional home
environment.

Id. at 780. Noting the similarity between these factors and the Supreme Court’s decision
in Williams, the Mason court found that there was sufficient prejudice because “Mason
has demonstrated a reasonable probability that, had his counsel presented the mitigating
evidence introduced at the evidentiary hearing, at least one juror might have been
persuaded not to impose the death penalty.” Id. at 781-83. The Mason court held that
deferential review under AEDPA did not alter this result even though the Ohio Supreme
Court “rejected Mason’s claim of ineffective assistance of counsel on the ground that
Mason had failed to show prejudice.” Id. at 785.

Goodwin’s undisclosed mitigation evidence is comparable to the mitigation
evidence not presented in Mason. Its potential for altering the sentencing profile is
arguably greater, however, inasmuch as the aggravating circumstances of Goodwin’s
crime might not be considered as heinous as Mason’s rape and brutal bludgeoning of his
victim.

In Jells v. Mitchell, a man kidnapped a woman and her young son, beat the
mother in front of her son, carried her body into a junkyard and left it there, and then
dropped her son off at another junkyard. 538 F.3d at 484-86. The court determined that
“to the extent that it actually addressed prejudice, the Ohio Court of Appeals
unreasonably determined that the alleged errors of Jells’s trial counsel did not prejudice
Jells’s case.” Id. at 498. The Jells court contrasted the evidence presented at the
mitigation hearing, which was largely positive, with the withheld evidence, which
showed that Jells had serious cognitive learning and socialization impairment; revealed
Nos. 06-3571/3572 Goodwin v. Johnson Page 41

that Jells had witnessed his mother’s multiple abusive sexual relationships; and included
expert testimony indicating that Jells’s home environment had a profound impact on his
psychological development and led to feelings of victimization that added to the
frustrations he experienced in school. Id. at 500. The Jells court concluded there was
sufficient showing of prejudice based on counsel’s failure to take advantage of
undisclosed mitigation information similar to Goodwin’s.

Numerous other Sixth Circuit decisions support the conclusion that Goodwin’s
counsel’s inadequate mitigation investigation resulted in cognizable prejudice. See, e.g.,
Johnson v. Bagley, 544 F.3d 592, 603-06 (6th Cir. 2008); Morales v. Mitchell, 507 F.3d
916, 935 (6th Cir. 2007); Haliym v. Mitchell, 492 F.3d 680, 712 (6th Cir. 2007); Harries
v. Bell, 417 F.3d 631, 639-40 (6th Cir. 2005).

In Phillips v. Bradshaw, 607 F.3d 199 (6th Cir. 2010), the petition for habeas
relief based on inadequate mitigation investigation was denied for lack of a persuasive
showing of cognizable prejudice. The court determined that the undisclosed mitigating
evidence of an abusive childhood home environment showed abuse of Phillips’s siblings,
but not of Phillips himself. Id. at 218. The undisclosed evidence was thus deemed not
to be substantially different, in strength or subject matter, from the mitigating evidence
actually presented at sentencing. Id. at 218-19. The court also took note of the
“particularly heinous way in which the murder was committed, that is, the brutal beating
and anal rape of a three year old girl,” and concluded that the presentation of the new
evidence would not have so altered the weighing of aggravating and mitigating
circumstances as to create a reasonable probability of a different outcome. Here, in
contrast, the new evidence, not discovered or presented due to counsel’s inadequate
investigation, was sufficiently different and weighty, in comparison with counsel’s
failure to present any mitigation case at all, to create a reasonable probability of a
different outcome.

Accordingly, consistent with the above authorities, we concur in the district
court’s assessment that the Ohio Court of Appeals unreasonably applied Strickland’s
clearly established requirement that it weigh the aggravating and mitigating
Nos. 06-3571/3572 Goodwin v. Johnson Page 42

circumstances to determine if there was a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. After
reweighing the evidence in aggravation against the powerful mitigating evidence that
was never presented to the jury, we find that it was objectively unreasonable to find that
Goodwin was not prejudiced by his trial counsel’s performance. Instead, it is reasonably
probable that at least one juror would have voted against death had defense counsel
presented the new mitigation evidence. Accordingly, we find no error in the district
court’s determination that Goodwin was prejudiced by his counsel’s failure to present
this mitigating evidence.

III. CONCLUSION

In accordance with the foregoing analysis, we affirm the judgment of the district
court on all issues presented in this appeal. Specifically, the district court’s denial of
habeas relief on petitioner Goodwin’s claims of ineffective assistance of counsel in the
guilt phase, insufficient evidence of prior calculation and design, and failure to instruct
the jury on the lesser included offense of involuntary manslaughter, is AFFIRMED. In
addition, the district court’s award of habeas relief on Goodwin’s claim that he was
denied effective assistance of counsel in the penalty phase, is AFFIRMED. The matter
is therefore REMANDED to the district court for issuance of an order conditionally
granting the writ unless the State of Ohio commences a new sentencing proceeding
within 180 days from the date this judgment becomes final.