Jose Loza v. Betty Mitchell

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0217p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
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JOSÉ TRINIDAD LOZA,
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Petitioner-Appellant,
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No. 11-3453
v.
,
>
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Respondent-Appellee. -
BETTY MITCHELL, Warden,
N
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 1:98-cv-287—Edmund A. Sargus, Jr., District Judge.
Argued: December 5, 2012
Decided and Filed: September 2, 2014
Before: GIBBONS, GRIFFIN, and WHITE, Circuit Judges.

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COUNSEL
ARGUED: Laurence E. Komp, Manchester, Missouri, for Appellant. David M. Henry,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
Michael J. O’Hara, O’HARA, RUBERG, TAYLOR, SLOAN & SERGENT, Covington,
Kentucky, for Amicus Curiae. ON BRIEF: Laurence E. Komp, Manchester, Missouri,
James A. Wilson, VORYS, SATER, SEYMOUR & PEASE LLP, Columbus, Ohio, for
Appellant. David M. Henry, Thomas E. Madden, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellee. Michael J. O’Hara, O’HARA, RUBERG,
TAYLOR, SLOAN & SERGENT, Covington, Kentucky, for Amicus Curiae.
GIBBONS, J., delivered the opinion of the court, in which GRIFFIN, J., joined,
and WHITE, J., joined in part. WHITE, J. (pp. 46–48), delivered a separate opinion
concurring in part and dissenting in part.

1
No. 11-3453 Loza v. Mitchell Page 2

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OPINION
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JULIA SMITH GIBBONS, Circuit Judge. In 1991, Jose Trinidad Loza shot and
killed four members of his pregnant girlfriend’s family. An Ohio jury convicted him of
four counts of aggravated murder, and he was sentenced to death. Ohio state courts
affirmed Loza’s convictions and sentences on direct appeal and denied him post-
conviction relief. Loza filed a habeas corpus petition in federal district court, which was
denied. On appeal, Loza argues that he is entitled to habeas relief on seven grounds.
We affirm the district court’s denial of Loza’s habeas petition.

I.

The Ohio Supreme Court described the facts and circumstances underlying
Loza’s convictions as follows:

On January 16, 1991, defendant-appellant, Jose Trinidad Loza,
shot four members of the family of his girlfriend, Dorothy Jackson. The
victims were shot in the head at close range while they slept in their
home in Middletown, Ohio. Loza shot Jackson’s mother, Georgia Davis;
her brother, Gary Mullins; and her two sisters, Cheryl (Mullins) Senteno
and Jerri Luanna Jackson. Mullins died almost immediately from his
wound; Davis and Senteno survived several hours before dying. Jerri
Jackson, six months pregnant at the time of the shooting, died on January
31, 1991.
On the afternoon of January 16, 1991, Gary Hoertt observed an
individual in a white Mazda pick-up truck with California plates loading
trash into his dumpster at his shop in Middletown. Having had previous
problems with the unauthorized use of his dumpster, Hoertt searched the
dumpster for something with which to identify the individual. Hoertt
found a letter in the dumpster signed by Loza with a return address in
Butler County. Hoertt read the letter, the contents of which indicated that
Loza was involved in a drive-by shooting in Los Angeles and that he
came to Ohio to avoid apprehension by the Los Angeles police.
After reading the letter, Hoertt called the Warren County Sheriff’s
Department to report his discovery. Hoertt was informed that it would
take some time before a deputy could respond. During that time, Hoertt
No. 11-3453 Loza v. Mitchell Page 3

was informed by an employee that the individual, later identified as Loza,
and a female companion were seen in the vicinity of the nearby
Greyhound bus station. Hoertt then called Middletown police detective
Roger Knable.
After Knable arrived at Hoertt’s shop and read the letter, Knable
and Hoertt went to the dumpster, where they retrieved other items that
Loza had discarded, which included: a knife; an empty box for a .25
caliber Raven automatic handgun; a receipt signed by a Judy A. Smith
for the purchase of the handgun on January 15, 1991; a woman’s purse;
a blank check on the account of Georgia L. Davis; a general money order
made payable to Jose Loza; clothing; and some other personal items.
As Hoertt and Knable were going through the items in Hoertt’s
office, Hoertt saw Loza approach the dumpster. Knable went to his
cruiser and requested his dispatcher to notify Warren County deputies
that the individual had returned and that he was going to speak to him.
Knable identified himself as a police officer, approached Loza with his
gun in his hand, and instructed Loza to place his hands on the front of the
car. Knable searched Loza and asked his name. At this time, Loza
identified himself as “Jose Rodriguez.” Knable told Loza the reason he
was being stopped was because of what he put in the dumpster. Loza
responded “yes.” Knable said the letter indicated that Loza may have
been involved in a drive-by shooting in Los Angeles. Loza again
responded “yes.” Knable then informed Loza that he was going to
handcuff him and hold him until Warren County deputies arrived.
Knable then went to locate the woman who had been seen with Loza
earlier. Loza said that the woman’s name was Cynthia Rodriguez, that
she was his wife, and that they were headed to California.
Knable then went inside the bus station and approached Dorothy
Jackson. He asked her name and she responded “Dorothy Jackson.”
When asked, Jackson stated that Loza’s name was “Jose Rodriguez,” and
that they were not married. Within a short time after Knable’s initial
contact with Loza, Warren County deputies arrived. The deputies
determined Jackson was under age and that she planned to travel to
California with Loza. When asked, Jackson gave her mother’s telephone
number to the deputies. Knable was unsuccessful in reaching Davis,
Jackson’s mother, by phone. Detectives Knable and George Jeffery then
went to Davis’s home at 1408 Fairmont, but did not receive any response
when they knocked at the door. A neighbor approached the detectives
and said that she had been trying unsuccessfully all day to get someone
from the house to respond.
Because the police were unable to determine if Jackson had
permission to travel out of state, she was arrested for being an unruly
No. 11-3453 Loza v. Mitchell Page 4

minor and was taken to the Warren County Juvenile Detention Center.
Loza was arrested for contributing to the delinquency or unruliness of a
minor and was taken to the Warren County Justice Center.
When the detectives began questioning Jackson at the juvenile
detention center, she did not initially tell them of the murders. Shortly
into the questioning, she began crying. She said she did not want to go
to jail, and that Loza had killed her family. Jackson then told the
detectives what she knew about the murders.
Based upon Jackson’s statement, Detective Knable obtained a
search warrant for the house at 1408 Fairmont. When the police entered
the house, they discovered the victims.
Knable and Jeffery then returned to the Warren County Justice
Center and began questioning Loza. The detectives’ interview with Loza
was videotaped. At the beginning of the interview, Loza waived his
Miranda rights. Initially, Loza said that he and Jackson were traveling
to California with her mother’s permission. The detectives told Loza
they knew what had happened, and that it would be in his, Jackson’s and
the unborn baby’s best interest if he just told the truth. About one hour
into the interview, Loza confessed to the murders. Loza detailed the
murders, including the order in which he shot the victims. Loza stated
that Jackson was not in the house at the time of the murders, and that she
did not know that he was going to kill her family members.
The detectives asked Loza when he began thinking about
murdering Jackson’s family members. Loza responded that he had been
thinking about it since he had obtained the gun and particularly after
Davis had threatened to have him arrested if he tried to leave the state
with Jackson. Loza explained that he shot Davis because of her threats.
When asked why he shot the others, he responded: “Knowing I had to do
one, I had to do all. * * * Because if I only done one, they would
have—they would have known it was me. If I would have done all of
them, nobody would have found out.”

State v. Loza, 641 N.E.2d 1082, 1091–92 (Ohio 1994).

In 1991, a jury convicted Loza of four counts of aggravated murder. It
recommended that Loza be sentenced to death for the aggravated murders of Mullins,
Senteno, and Jerri Jackson. It recommend that Loza be sentenced to thirty years’ to life
imprisonment for the aggravated murder of Davis. The trial court accepted the jury’s
recommendation.
No. 11-3453 Loza v. Mitchell Page 5

The Ohio Court of Appeals and the Ohio Supreme Court affirmed Loza’s
convictions and sentences. State v. Loza, 641 N.E.2d 1082 (Ohio 1994); State v. Loza,
No. CA 91-11-198, 1993 WL 120028 (Ohio Ct. App. April 19, 1993). The Ohio
Supreme Court denied Loza’s motion for reconsideration. State v. Loza, 643 N.E.2d 142
(1994) (table decision). The Butler County Court of Common Pleas denied Loza’s
petition for post-conviction relief, and the Ohio Court of Appeals affirmed. State v.
Loza, No. CA 96-10-214, 1997 WL 634348 (Ohio Ct. App. Oct. 13, 1997). The Ohio
Supreme Court declined discretionary review of Loza’s appeal, stating that it posed no
substantial constitutional question. State v. Loza, 689 N.E.2d 49 (Ohio 1998) (table
decision).

Loza filed a petition for a writ of habeas corpus in federal district court, asserting
thirty-four grounds for relief. The district court dismissed several of Loza’s claims as
procedurally defaulted. It denied Loza’s remaining claims and dismissed the action.
The district court certified fourteen issues for appeal, and this court granted a certificate
of appealability on one additional issue. Loza raises seven of these issues on appeal.
Loza abandoned the issues that he failed to raise, and we do not consider them. Post v.
Bradshaw, 621 F.3d 406, 413–14 (6th Cir. 2010).

II.

In an appeal of a § 2254 habeas action, we review the district court’s legal
conclusions de novo. Cristini v. McKee, 526 F.3d 888, 897 (6th Cir. 2008). “‘[W]here
the district court has made factual determinations based on its review of trial transcripts
and other court records,’” we also review the district court’s factual conclusions de novo.
Dando v. Yukins, 461 F.3d 791, 796 (6th Cir. 2006) (quoting Mackey v. Russell, 148 F.
App’x 355, 359 (6th Cir. 2005)).

We review the decision of “the last state court to issue a reasoned opinion on the
issue[s]” raised in a habeas petition. Joseph v. Coyle, 469 F.3d 441, 450 (6th Cir. 2006);
see also Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one
reasoned state judgment rejecting a federal claim, later unexplained orders upholding
No. 11-3453 Loza v. Mitchell Page 6

that judgment or rejecting the same claim [are presumed to] rest upon the same
ground.”).

Loza filed his petition after the effective date of the Anti-Terrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). As a result, AEDPA governs our review.
Under § 2254(d):

An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.

The “contrary to” and “unreasonable application” clauses of § 2254(d)(1) have
independent meaning. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court’s
decision is “contrary to” clearly established federal law if it “applies a rule that
contradicts the governing law set forth in [Supreme Court] cases” or if it “confronts a
set of facts that are materially indistinguishable from a decision of [the Supreme] Court
and nevertheless arrives at a result different from [this] precedent.” Id. at 405–06. A
state court’s decision is an “unreasonable application” of clearly established federal law
if it “correctly identifies the governing legal rule but applies it unreasonably to the facts
of a particular prisoner’s case.” Id. at 407–08. “The ‘unreasonable application’ clause
requires the state court decision to be more than incorrect or erroneous.” Lockyer v.
Andrade, 538 U.S. 63, 75 (2003). “The state court’s application of clearly established
law must be objectively unreasonable.” Id. The phrase “clearly established Federal
law” in § 2254(d)(1) “refers to the holdings, as opposed to the dicta, of [the Supreme]
Court’s decisions as of the time of the relevant state-court decision.” Williams, 529 U.S.
at 412.
No. 11-3453 Loza v. Mitchell Page 7

A state court’s factual determination is not “unreasonable” within the meaning
of § 2254(d)(2) “merely because the federal habeas court would have reached a different
conclusion in the first instance.” Wood v. Allen, 130 S. Ct. 841, 849 (2010). Even if
“[r]easonable minds reviewing the record” might disagree about a factual finding, “on
habeas review that does not suffice to supersede” the state court’s determination. Rice
v. Collins, 546 U.S. 333, 341–42 (2006).

III.

Loza argues that the Ohio Supreme Court unreasonably applied clearly
established federal law when it held that the trial court properly refused to suppress
statements that Loza made to Detective Knable shortly after Knable encountered Loza
at Hoertt’s trash bin on the day of his arrest.

On the day of Loza’s arrest, Hoertt observed Loza putting items in the trash bin
at Hoertt’s shop. Hoertt searched the trash bin and found a letter in which the writer
stated that he was involved in a drive-by shooting in Los Angeles. Hoertt contacted
Knable, who arrived and read the letter. A short time later, the men saw Loza return to
the trash bin. At the suppression hearing before the trial court, Knable explained what
happened next:

I went to my cruiser, my unmarked police car. I told the desk, my
dispatcher, that the individual who had placed this stuff in the dumpster
had returned to the dumpster, and was still in the area. I told them I was
going to approach him, notify Warren County to respond immediately if
possible. As I approached Mr. Loza, he turned to face my car. He had
on a, I believe, a blue and gray jacket. It appeared to me as though he
was reaching for his pocket. I got out of the car with my service gun to
my side. I advised him I was a police officer. I did display a badge. I
was not wearing a jacket. My badge was on my belt. I advised him to
place his hands on the top—on the hood of the car, which he did. I then
put my gun away, padded him down, and advised him that the reason
why I wanted to speak with him was because of the stuff he put in the
dumpster. I asked him his name, and he told me it was Jose Rodriguez.
At that point, I told him Warren County Sheriff’s Department was
on the way—they wanted to speak with him in reference to the letter. I
also, at that point, handcuffed him, placed him in the back of my car, told
No. 11-3453 Loza v. Mitchell Page 8

him it would be approximately ten minutes before they arrived. At that
time I asked him where his friend was, or female companion. He stated
she was in the bus station.

Loza told Knable that Jackson’s name was Cynthia Rodriguez. Knable further
explained:

[W]hen I first got up and started talking to him, I said, “The reason I’m
stopping is because of what you put in the dumpster.” And he said,
“Yes.” And I said, “This letter there indicates that you may have been
involved in a shooting in Los Angeles. Again he said, “Yes.” At that
point I advised him that I was going to handcuff him, and hold him until
Warren County arrived.

Prior to trial, Loza moved to suppress his statements to Knable. Loza argued that
Knable’s seizure of Loza violated the Fourth Amendment. He also argued that Knable
failed to provide him with warnings pursuant to Miranda v. Arizona, 384 U.S. 436
(1966), prior to questioning him, in violation of his Fifth Amendment privilege against
self-incrimination. The trial court denied Loza’s motion. At trial, Knable testified that
Loza provided false names for himself and Dorothy Jackson. The State referenced this
fact in opening and closing arguments.

The Ohio Supreme Court rejected Loza’s argument that he was unlawfully
seized. It concluded that Knable conducted a lawful investigatory stop pursuant to Terry
v. Ohio, 392 U.S. 1 (1968). Loza, 641 N.E.2d at 1097–98. The court also rejected
Loza’s claim that his statements to Knable should have been suppressed:

Appellant’s contention that the statements he made to Knable
after being stopped should be suppressed because he was not given
Miranda warnings is baseless. Knable merely asked Loza his name and
other general questions associated with a police investigation. This type
of questioning is not affected by the Supreme Court’s holding in
Miranda.

Id. at1098 (citation omitted).

Loza now argues that the Ohio Supreme Court unreasonably applied clearly
established federal law when it failed to recognize that he was in custody at the time that
No. 11-3453 Loza v. Mitchell Page 9

Knable questioned him and, consequently, that Knable was required to advise him of his
Miranda rights. Loza’s argument implicates two constitutional doctrines.

First, the Self-Incrimination Clause of the Fifth Amendment provides that “[n]o
person . . . shall be compelled in any criminal case to be a witness against himself.” U.S.
Const. amend V. In Miranda v. Arizona, the Supreme Court held that in order to protect
the privilege against compelled self-incrimination, a suspect “must be warned prior to
any questioning that he has the right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the presence of an attorney, and that
if he cannot afford an attorney one will be appointed for him prior to any questioning if
he so desires.” 384 U.S. at 479. “An officer’s obligation to administer Miranda
warnings attaches . . . ‘only where there has been such a restriction on a person’s
freedom as to render him ‘in custody.’” Stansbury v. California, 511 U.S. 318, 322
(1994) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per
curiam)). “In determining whether an individual was in custody, a court must examine
all of the circumstances surrounding the interrogation, but ‘the ultimate inquiry is simply
whether there [was] a formal arrest or restraint on freedom of movement of the degree
associated with a formal arrest.’” Id. (quoting California v. Beheler, 463 U.S. 1121, 1125
(1983) (per curiam) (internal quotation marks and citation omitted)). The initial custody
determination “depends on the objective circumstances of the interrogation, not on the
subjective views harbored by either the interrogating officers or the person being
questioned. Id. at 323.

Additionally, the Fourth Amendment protects “[t]he right of the people to be
secure in their persons . . . against unreasonable searches and seizures.” U.S. Const.
amend. IV. In Terry v. Ohio, the Supreme Court held that when a law enforcement
officer has a reasonable, articulable suspicion that a person may be involved in criminal
activity, he may, consistent with the Fourth Amendment, conduct a brief investigatory
stop of the person. 392 U.S. at 30–31. Such a stop must be “justified at its inception”
and “reasonably related in scope to the circumstances which justified the interference in
the first place.” Id. at 20. During the stop, the officer may make “reasonable inquiries”
No. 11-3453 Loza v. Mitchell Page 10

of the person and conduct a pat-down search to check for weapons. Id. “Reasonable
inquiries” include, for example, questions about a person’s identity. Hiibel v. Sixth
Judicial Dist. Court of Nevada, Humboldt Cnty., 542 U.S. 177, 186 (2004); see also
United States v. Hensley, 469 U.S. 221, 229 (1985) (observing that if police have a
reasonable suspicion that a person they encounter was involved in connection with a
completed felony, then they may conduct a Terry stop to “ask questions[] or check
identification”); Hayes v. Florida, 470 U.S. 811, 816 (1985) (“[I]f there are articulable
facts supporting a reasonable suspicion that a person has committed a criminal offense,
that person may be stopped in order to identify him, to question him briefly, or to detain
him briefly while attempting to obtain additional information.”); Adams v. Williams,
407 U.S. 143, 146 (1972) (observing that, pursuant to Terry, an officer may make “[a]
brief stop of a suspicious individual[] in order to determine his identity or to maintain
the status quo momentarily while obtaining more information”).

In Berkemer v. McCarty, the Supreme Court recognized that an individual may
be detained, but nonetheless may not be “in custody” for purposes of Miranda. 468 U.S.
420, 337–39 (1984) (holding that roadside questioning of a motorist detained pursuant
to a routine traffic stop does not constitute “custodial interrogation” for purposes of
Miranda). The Court remarked on “the absence of any suggestion in our opinions that
Terry stops are subject to the dictates of Miranda.” Id. at 440. It noted, by way of
explanation, the “comparatively nonthreatening character” of such detentions. Id. The
Court explained that although “the officer may ask the detainee a moderate number of
questions to determine his identity and to try to obtain information confirming or
dispelling the officer’s suspicions . . . the detainee is not obliged to respond . . . [a]nd,
unless the detainee’s answers provide the officer with probable cause to arrest him, he
must then be released.” Id. at 339–40 (footnotes omitted).

The Ohio Supreme Court’s determination that Knable questioned Loza pursuant
to a lawful Terry stop and, consequently, that Knable was not required to provide Loza
with his Miranda rights was not unreasonable. The court noted that Knable had a
reasonable, articulable suspicion that criminal activity was afoot based on the letter
No. 11-3453 Loza v. Mitchell Page 11

found in Hoertt’s trash bin regarding a drive-by shooting. Loza, 641 N.E.2d at 1097.
He also had reason to suspect that Loza, whom Hoett identified as the man who put the
items in the trash bin, may have been involved. Id. In light of these facts, it was not
unreasonable for the court to conclude that Knable, pursuant to Terry, permissibly
approached Loza, patted him down, and asked him for his name and the name of his
companion.

Loza argues that Knable’s encounter with him was more coercive than a typical
Terry stop. He notes that Knable was holding his firearm when he approached Loza and
that he handcuffed Loza and placed him in the back of his patrol car. Courts and
commentators have recognized that the line between investigatory stops governed by
Terry—particularly those that are more intrusive—and custodial interrogations subject
to Miranda is, at times, unclear. See, e.g., Cruz v. Miller, 255 F.3d 77, 84 (2d Cir. 2001)
(“[T]he [Supreme] Court has not explicitly considered what circumstances of a Terry
stop would constitute ‘custody’ requiring Miranda warnings.”); Michael J. Roth,
Berkemer Revisited: Uncovering the Middle Ground Between Miranda and the New
Terry, 77 Fordham L. Rev. 2779, 2779 (April 2009) (observing that the courts are
divided as to whether Miranda applies during a valid, but intrusive Terry stop).
However, to the extent that the law is not clearly established, the Ohio Supreme Court’s
decision was not unreasonable.1

For these reasons, Loza is not entitled to habeas relief on this ground.

IV.

Next, Loza argues that the Ohio Supreme Court’s decision upholding the
voluntariness and admissibility of his confession was based on an unreasonable

1
Because we conclude that the Ohio Supreme Court’s decision that Knable questioned Loza
pursuant to a lawful Terry stop was not unreasonable, we do not address Loza’s argument that Knable’s
questions did not fall under the exception to Miranda for “routine booking questions.” See Pennsylvania
v. Muniz, 496 U.S. 582, 601 (1990) (exempting from Miranda’s coverage “questions to secure the
biographical data necessary to complete booking or pretrial services”) (internal quotation marks and
citation omitted).
No. 11-3453 Loza v. Mitchell Page 12

determination of the facts and was contrary to or an unreasonable application of clearly
established federal law.

After Dorothy Jackson implicated Loza in her family members’ killings and
police discovered the victims, Detectives Knable and Jeffery questioned Loza at the
detention center where he was being held. At the beginning of the interview, which was
videotaped, Loza waived his Miranda rights. After about an hour of questioning, Loza
confessed to the killings. The trial court denied Loza’s motion to suppress his
confession, and the video of his confession was played at trial. The Ohio Supreme Court
held that Loza’s confession was voluntary and properly admitted.

The Due Process Clause of the Fourteenth Amendment provides that no State
shall “deprive any person of life liberty, or property, without due process of law.” U.S.
Const. amend. XIV. “[C]ertain interrogation techniques, either in isolation or as applied
to the unique characteristics of a particular suspect, are so offensive to a civilized system
of justice that they must be condemned under the Due Process Clause of the Fourteenth
Amendment.” Miller v. Fenton, 474 U.S. 104, 109 (1985). In order to determine
whether a confession was voluntarily made, a court must evaluate the totality of the
circumstances surrounding the interrogation to determine whether the defendant’s “will
[was] overborne and his capacity for self-determination critically impaired.”
Schneckloth v. Bustamonte, 412 U.S. 218, 225–26 (1973). “[C]oercive police activity
is a necessary predicate to the finding that a confession is not ‘voluntary.’” Colorado
v. Connelly, 479 U.S. 157, 167 (1986). “[C]oercion can be mental as well as physical.”
Blackburn v. Alabama, 361 U.S. 199, 206 (1960). In addition to “the crucial element of
police coercion,” courts consider “the length of the interrogation, its location, its
continuity, the defendant’s maturity, education, physical condition, and mental health”
and the failure of police to advise the defendant of his Miranda rights. Withrow v.
Williams, 507 U.S. 680, 693–94 (1993) (internal citations omitted); see also Schneckloth,
412 U.S. at 226 (discussing factors). If a defendant has been advised of his Miranda
rights and voluntarily waived them, it will be difficult to claim that his confession was
nonetheless involuntary. Missouri v. Seibert, 542 U.S. 600, 609 (2004) (plurality
No. 11-3453 Loza v. Mitchell Page 13

opinion) (noting that “maintaining that a statement is involuntary even though given
after warnings and voluntary waiver of rights requires unusual stamina”); see also
Berkemer, 468 U.S. at 433 n.20 (“[C]ases in which a defendant can make a colorable
argument that a self-incriminating statement was ‘compelled’ despite the fact that the
law enforcement authorities adhered to the dictates of Miranda are rare.”).

The Ohio Supreme Court examined the totality of the circumstances surrounding
Loza’s confession and upheld the trial court’s denial of Loza’s suppression motion,
reasoning, in part:

[W]e concur in the trial court’s finding that the appellant’s statements
were voluntarily made and that the appellant’s will to resist was not
overborne by threats or improper inducements. Appellant was of
majority age and was in command of his faculties at the time he
confessed. He was not interrogated for an unreasonable length of time,
and was not subjected to physical abuse or harsh conditions. We note
that before the interrogation began, appellant waived his Miranda rights.
Upon completion of the interrogation, when the detectives asked
appellant if he felt threatened by them or if they had made any promises
to him, appellant responded that “no,” they had not threatened him, and
agreed they had not made any promises to him. Through these
affirmations, appellant has confirmed that his confession was voluntarily
made.

Loza, 641 N.E.2d at 1095.

Loza first argues that the Ohio Supreme Court’s decision was based on an
unreasonable determination of the facts. He contends that the court’s conclusion that
“[n]o threats were made [during the interrogation] concerning [Dorothy] Jackson or what
would happen if appellant did not confess,” Loza, 641 N.E.2d at 1094, is contrary to the
record.

Loza argues that Detectives Knable and Jeffery threatened Dorothy Jackson and
Loza’s unborn baby to coerce Loza into confessing. For example, the detectives asked
Loza if he “want[ed] Dorothy to have her baby in a penitentiary” or if he wanted “[his]
baby to be put up for adoption to somebody you’ve never heard of” and told Loza that
“[t]hat’s what’s going to happen.” At one point, the detectives implied that Loza was
No. 11-3453 Loza v. Mitchell Page 14

not telling the truth and Knable said, “What you’re trying to do is put yourself in an
electric chair or a gas chamber right along with Dorothy, and this child is going to go off
into never, never land and never be seen again.” Loza argues that he interpreted this
statement to mean that if he did not confess, Dorothy Jackson would be prosecuted, and
both she and Loza’s unborn child would be sent to the electric chair.

The Ohio Supreme Court rejected Loza’s argument that these statements
constituted threats, reasoning:

The detectives’ references to Jackson were made in response to
appellant’s repeated inquiries about what would happen to her. No
threats were made concerning Jackson or what would happen if appellant
did not confess. The detectives merely informed appellant of the
possible consequences of his actions. By the time the detectives were
questioning appellant, Jackson had already told the police about
appellant’s involvement in the murders. Appellant sought the release of
Jackson and he initiated the bargaining for her release. Under these
circumstances, the statements made to the detectives were voluntary
beyond doubt.

Loza, 641 N.E.2d at 1094 (citations omitted).

After reviewing the video recording and transcript of Loza’s interrogation, we
conclude that the Ohio Supreme Court’s determination that the detectives did not
threaten Dorothy Jackson or Loza’s unborn child was not unreasonable. The record
supports the court’s conclusion that “detectives merely informed appellant of the
possible consequences of his actions” when they told Loza that both he and Dorothy
Jackson could be imprisoned for their involvement in the killings. Id. It is unclear what
Knable meant when he said that their child would go “into never, never land.” However,
it was not unreasonable for the court to characterize Knable’s statement as an assessment
of the possible consequences of Loza’s actions, albeit phrased in hyperbolic terms. As
the court noted, most of the detectives’ references to Jackson during the interrogation
were in response to Loza’s questions about what would happen if Jackson were charged
and prosecuted. Viewed in context, the detectives’ comments do not appear to be
threats. Even if we believed that some statements could be characterized as threats, our
No. 11-3453 Loza v. Mitchell Page 15

mere disagreement is not enough to supersede the Ohio Supreme Court’s factual
determination on habeas review. See Rice, 546 U.S. at 341–42.

Next, Loza argues that the Ohio Supreme Court’s determination that his
confession was voluntary is contrary to Spano v. New York, 360 U.S. 315 (1959), and
Lynumn v. Illinois, 372 U.S. 528 (1963), two pre-Miranda cases in which the Supreme
Court reversed defendants’ convictions based on involuntary confessions. In Spano,
several officials questioned the defendant, a 25-year-old immigrant with only a half-year
of high school education and a history of emotional instability, “for virtually eight
straight hours before he confessed” to a killing. 360 U.S. at 322. During the
interrogation, police asked a “fledgling police officer” and close friend of the defendant
to falsely tell the defendant that the officer could lose his job, leaving him unable to
provide for his pregnant wife and three children. Id. at 317–19. The Court concluded
that the defendant’s “will was overborne by official pressure, fatigue and sympathy
falsely aroused.” Id. at 323. In Lynumn, the defendant confessed to unlawful possession
and sale of marijuana after officers told her that she would be sent to jail, her state
financial aid would be cut off, and her children would be taken away. 372 U.S. at 533.
The threats were made while the defendant was “encircled in her apartment by three
police officers” and another man, a twice-convicted felon, who had “purportedly ‘set her
up.’” Id. at 534. The defendant had no previous experience with criminal law and “no
reason not to believe that the police had ample power to carry out their threats.” Id.
Thus, the Court concluded that the defendant’s will was overborne. Id.

The Ohio Supreme Court’s determination that Loza’s confession was voluntary
is not contrary to Spano and Lynumn. Loza suggests that the facts of his case are
“materially indistinguishable,” Williams, 529 U.S. at 405–06, from the facts of these
cases, but this is incorrect. First—and most importantly— Spano and Lynumn pre-dated
Miranda. Unlike the defendants in these cases, Loza was read his Miranda rights and
voluntarily waived them,2 making it very difficult for him to demonstrate that his
confession was nonetheless involuntary. See Seibert, 542 U.S. at 609; Berkemer,

2
Loza does not argue that his waiver was involuntary.
No. 11-3453 Loza v. Mitchell Page 16

486 U.S. at 433 n.20. Second, other circumstances of Loza’s interrogation distinguish
it from the interrogations in Spano and Lynumn, including Loza’s age, education level,
the length of his interrogation, the environment in which he was interrogated, and the
statements detectives made to him. Even if individual facts are similar, the “totality of
the circumstances” in Loza’s case is not the same. Thus, Loza’s case was not so
indistinguishable from these cases that the Ohio Supreme Court was required to arrive
at the same result.

Loza argues that, as in Spano and Lynumn, his interrogators made threats about
what would happen to other people if he did not confess. However, as previously
discussed, the Ohio Supreme Court’s factual determination that the detectives’
statements were not threats was not unreasonable. Loza argues that, like the defendants
in Spano and Lynumn, detectives lied to him when they falsely told him that they had
spoken with Jerri Jackson, who was alive but unresponsive when police arrived at the
Dorothy Jackson’s family home. However, this similarity does not compel a conclusion
that Loza’s confession was involuntary. The Court has subsequently clarified that
Miranda does not prohibit “mere strategic deception.” Illinois v. Perkins, 496 U.S. 292,
297 (1990). “Ploys to mislead a suspect or lull him into a false sense of security that do
not rise to the level of compulsion or coercion to speak are not within Miranda’s
concerns.” Id.; see also Frazier v. Cupp, 394 U.S. 731, 739 (1969) (holding that police
misrepresentation of facts, while relevant, was insufficient to render an otherwise
voluntary confession inadmissible). Loza also argues that detectives lied to him by
promising that he would get to see Dorothy Jackson and that they would testify on his
behalf if he confessed. However, the record does not support Loza’s assertion that the
detectives lied about these issues. The Ohio Supreme Court reasonably concluded that,
although the detectives said they would try to make arrangements for Loza to see
Dorothy Jackson, they explicitly said that they could not promise that a meeting would
occur. It also reasonably concluded that the detectives did not promise to testify on
Loza’s behalf or make any promises regarding the treatment he would receive from the
court.
No. 11-3453 Loza v. Mitchell Page 17

For these reasons, the Ohio Supreme Court’s decision was not based on an
unreasonable factual determination. Nor was it contrary to or an unreasonable
application of clearly established federal law. Loza is not entitled to habeas relief on
this ground.

V.

Loza argues that the Ohio Supreme Court’s decision upholding the trial court’s
exclusion of the testimony of Dr. Roger Fisher, a clinical psychologist, at the guilt phase
of trial was contrary to and an unreasonable application of Crane v. Kentucky, 476 U.S.
683 (1986). In Crane, the Supreme Court held that the “blanket exclusion” of evidence
concerning the circumstances of the defendant’s confession on the ground that it related
only to voluntariness, not credibility, violated the defendant’s right to present a complete
defense. Id. at 690–91.

Loza sought to introduce testimony from Fisher at the guilt phase of trial to help
explain his confession.3 Loza’s counsel stated that he expected Fisher to testify that
“Loza’s acknowledgment of his participation in the offense and his desire to take full
responsibility would have been [the] product of psychological coercion and duress
brought upon by the statements of the police officer that his girlfriend would be placed
in the electric chair and this child would be sent to never-never land.” He said that he
expected Fisher to testify that Loza’s “letters and repeated affirmations of [his
confession] would have been consistent with Mr. Loza’s coerced desire to protect his
girlfriend and unborn child.” The trial court prohibited Loza’s counsel from introducing
Fisher’s testimony at the guilt phase of trial because it had already determined Loza’s
confession to be voluntary. However, it permitted Fisher to testify at the mitigation
phase, after the jury had found Loza guilty. Fisher testified that Loza’s father abandoned
his family when he was five years old, which had a “very drastic” impact on Loza.
Fisher testified that when Loza met Dorothy Jackson, she “became the most important
thing in Jose Loza’s life.” Fisher explained that Loza saw Dorothy Jackson as “a chance

3
Loza’s counsel did not explicitly state whether Fisher’s testimony was relevant to the
voluntariness of Loza’s confession or to its credibility.
No. 11-3453 Loza v. Mitchell Page 18

to recover all that he had missed as a much younger, much more helpless child” and “to
have his own family set up on his own terms which nobody could take away from him.”
Fisher opined, based on his viewing of Loza’s confession, that Loza appeared to be
“trying to take a lot of pressure to himself and avoid problems for his girlfriend.” He
stated that, in his opinion, Loza would have lied to protect Dorothy Jackson and that he
would have done anything necessary to protect his unborn child. The Ohio Supreme
Court affirmed the trial court’s decision to exclude Fisher’s testimony at the guilt phase.

“Whether rooted directly in the Due Process Clause of the Fourteenth
Amendment or in the Compulsory Process or Confrontation [C]lauses of the Sixth
Amendment, the Constitution guarantees criminal defendants a meaningful opportunity
to present a complete defense.” Crane, 476 U.S. at 690 (internal quotation marks and
citations omitted); see also Chambers v. Mississippi, 410 U.S. 284, 294 (1973)
(observing that this opportunity includes “[t]he rights to confront and cross-examine
witnesses and to call witnesses in one’s own behalf”); Washington v. Texas, 388 U.S. 14,
19 (1967) (stating that this opportunity includes “[t]he right to offer the testimony of
witnesses, and to compel their attendance, if necessary . . . [and] the right to present the
defendant’s version of the facts as well as the prosecution’s to the jury so it may decide
where the truth lies”).

However, “[a] defendant’s right to present relevant evidence is not unlimited.”
United States v. Scheffer, 523 U.S. 303, 308 (1998). “[S]tate and federal rulemakers
have broad latitude under the Constitution to establish rules excluding evidence from
criminal trials.” Id. A defendant’s right to present a complete defense is only violated
“by evidence rules that infring[e] upon a weighty interest of the accused and are arbitrary
or disproportionate to the purposes they are designed to serve.” Holmes v. South
Carolina, 547 U.S. 319, 324 (2006) (internal quotation marks and citation omitted);
Scheffer, 523 U.S. at 308; Alley v. Bell, 307 F.3d 380, 394 (6th Cir. 2002) (“[A]
defendant’s due process rights are violated when a state court excludes important
evidence on the basis of an arbitrary, mechanistic, or per se rule, or one that is
disproportionate to the purposes it is designed to serve.”).
No. 11-3453 Loza v. Mitchell Page 19

The Supreme Court has deemed unconstitutional several “arbitrary” rules—that
is, “rules that excluded important defense evidence but that did not serve any legitimate
interests.” Holmes, 547 U.S. at 325. For example, in Washington, the Court held that
the defendant’s Sixth Amendment rights were violated when a state procedural statute
barring co-participants in a crime from testifying on one another’s behalf barred his
accomplice’s testimony that he had committed the crime with which Washington was
charged. 388 U.S. at 16–17. The Court observed that the rule “[could not] even be
defended on the ground that it rationally sets apart a group of persons who are
particularly likely to commit perjury,” because the rule permitted co-participants to
testify in situations where the incentive to commit perjury was even greater than the
situations in which they were banned. Id. at 22. In Chambers, the defendant called as
a witness a man who had previously confessed to the murder with which Chambers was
charged. 410 U.S. at 291. The man repudiated his confession on the stand, but
Chambers was prohibited from examining him as an adverse witness or presenting
witnesses who would have discredited his repudiation due to the state’s “voucher” rule,
which prohibited a party from impeaching his own witness. Id. at 291–92, 294–95. The
Court noted that the State could not “defend . . . or explain” the rationale behind the
“voucher” rule and held that “under the facts and circumstances of [the] case,” the rule
violated Chambers’ due-process rights under the Fourteenth Amendment. Id. at 297,
303. See also Rock v. Arkansas, 483 U.S. 44,61 (1978) (holding unconstitutional a per
se rule prohibiting hypnotically refreshed testimony because the evidence constituted “an
arbitrary restriction on the [defendant’s] right to testify in the absence of clear evidence
by the State repudiating the validity of all posthypnosis recollections”).

Crane, the case on which Loza relies, is another example of the Court’s rejection
of an arbitrary rule. See Holmes, 547 U.S. at 326; Alley, 307 F.3d at 395. The defendant
in Crane confessed to shooting and killing a liquor store clerk. 476 U.S. at 684. Prior
to trial, Crane moved to suppress his confession on the ground that it was impermissibly
coerced. Id. at 684–85. At the suppression hearing, Crane, who was sixteen years old
at the time he was interrogated, testified that he was detained in a windowless room for
a long period of time, that he was surrounded by as many as six police officers, that he
No. 11-3453 Loza v. Mitchell Page 20

was repeatedly denied permission to call his mother, and that he was “badgered” into
making a false confession. Id. at 685. The trial court found that Crane’s confession was
voluntary and denied the motion. Id. At trial, the prosecution moved in limine to
prevent the defense counsel from introducing any testimony regarding the circumstances
in which the confession was obtained. Id. at 685–86. Defense counsel argued that she
did not intend to relitigate the issue of voluntariness by introducing evidence about the
“physical and psychological environment in which the confession was obtained,” but
sought “only to demonstrate that the circumstances of the confession cast doubt on its
validity and its credibility.” Id. at 684, 686 (internal quotation marks and citation
omitted). The trial court granted the prosecutor’s motion. Id. at 686.

The Supreme Court held that “the blanket exclusion of the proffered testimony
about the circumstances of petitioner’s confession deprived him of a fair trial.” Id. at
690. The Court noted that the trial court’s ruling rested on the mistaken assumption that
“evidence bearing on the voluntariness of a confession and evidence bearing on its
credibility fall in conceptually distinct and mutually exclusive categories.” Id. at 687.
The Court emphasized that “‘evidence surrounding the making of a confession bears on
its credibility’ as well as its voluntariness.” Id. at 688 (quoting Jackson v. Denno,
378 U.S. 368, 386 n.13 (1964)). Thus, “regardless of whether the defendant marshaled
the same evidence earlier in support of an unsuccessful motion to suppress, and entirely
independent of any question of voluntariness,” a defendant may introduce the same
evidence at trial “to convince the jury that the manner in which the confession was
obtained casts doubt on its credibility.” Id. at 689. The Court acknowledged that judges
have “wide latitude” to exclude evidence that is repetitive, marginally relevant, or poses
an undue risk of harassment, prejudice or confusion. Id. at 689–90. It also
acknowledged the power of states to exclude evidence through the application of
evidentiary rules that “serve the interests of fairness and reliability.” Id. at 690.
However, the Court noted that “neither the Supreme Court of Kentucky in its opinion,
nor respondent in its argument to this Court, has advanced any rational justification for
the wholesale exclusion of this body of potentially exculpatory evidence.” Id. at 691.
Therefore, the Court reversed Crane’s conviction. Id. at 692.
No. 11-3453 Loza v. Mitchell Page 21

The Supreme Court later remarked that Crane did “not set[] forth an absolute
entitlement to introduce crucial, relevant evidence” at a criminal trial. Montana v.
Egelhoff, 518 U.S. 37, 53 (1996) (plurality opinion). It explained:

Our holding that the exclusion of certain evidence in that case violated
the defendant’s constitutional rights rested not on a theory that all
competent, reliable evidence must be admitted, but rather on the ground
that the Supreme Court of Kentucky’s sole rationale for the exclusion
(that the evidence did not relate to the credibility of the confession) was
wrong. Crane does nothing to undermine the principle that the
introduction of relevant evidence can be limited by the State for a valid
reason . . . .

Id.

Loza argues that the Ohio Supreme Court’s decision upholding the exclusion of
Fisher’s testimony was contrary to and an unreasonable application of Crane. The Ohio
Supreme Court reasoned:

The testimony of Dr. Fisher is clearly outside the holding of
Crane. The testimony of the witnesses in Crane related to how the
physical and psychological environment of the interrogation could have
impacted the voluntariness and credibility of the confession. Dr. Fisher’s
proffered testimony relates to how Loza’s individual, psychological
makeup, independent of the circumstances surrounding the interrogation,
could have impacted the voluntariness and credibility of the confession.
Consequently, Crane does not require the admission of Dr. Fisher’s
testimony.
The jury was able to accurately consider the credibility and
weight of the confession by watching it on videotape. They could see
and hear the tone and manner of the interrogation, the number of officers
present, the physical characteristics of the room, and the length of the
interrogation. The jury had the opportunity to evaluate the credibility of
the appellant and to give the confession its appropriate probative weight.
Because the trial court already had ruled on the voluntariness of the
confession and the jury had the opportunity to evaluate the credibility of
the confession, the trial court did not abuse its discretion by excluding
the testimony of Dr. Fisher during the guilt phase of the trial.

Loza, 641 N.E.2d at 1094 (citations omitted).
No. 11-3453 Loza v. Mitchell Page 22

As an initial matter, we observe that the Ohio Supreme Court’s reasoning is
somewhat flawed. First, the Ohio Supreme Court implied that evidence of a defendant’s
mental state is not relevant to the credibility of a defendant’s confession. This is not the
case. The Court in Crane noted that the improperly excluded testimony concerned “the
physical and psychological environment in which [Crane’s] confession was obtained.”
476 U.S. at 684. Crane provides no basis for distinguishing between evidence
concerning external factors (such as the time and place at which a defendant was
interrogated) and internal factors (such as a defendant’s unique psychological
characteristics) that bear on the credibility of a confession. Just as a defendant’s
personal characteristics are relevant to determining the voluntariness of a confession,
see, e.g., Blackburn, 361 U.S. at 206, so too are they relevant to the credibility of a
confession. Next, the Ohio Supreme Court cited the fact that “the trial court already had
ruled on the voluntariness of [Loza’s] confession” as a valid reason for excluding
Fisher’s testimony at the guilt phase of trial. Loza, 641 N.E.2d at 1094. Crane explicitly
states that “the circumstances surrounding the taking of a confession can be highly
relevant to two separate inquiries, one legal [voluntariness] and one factual
[credibility].” Crane, 476 U.S. at 688. Thus, the fact that the trial court had ruled on the
voluntariness of Loza’s confession did not provide a basis for excluding Fisher’s
testimony, to the extent that it was relevant to credibility.4

Nonetheless, the fact that aspects of the Ohio Supreme Court’s reasoning were
flawed does not mean that the court’s decision was contrary to or an unreasonable
application of clearly established federal law.

A state-court decision is “contrary to” our clearly established precedents
if it “applies a rule that contradicts the governing law set forth in our
cases” or it if confronts a set of facts that are materially indistinguishable
from a decision of this Court and nevertheless arrives at a result different
from our precedent.” Williams v. Taylor, 529 U.S. 362, 405–06 (2000).

4
Nonetheless, the Ohio Supreme Court’s mention of voluntariness in its discussion is
understandable. At trial, Loza’s counsel said that Fisher would testify that Loza’s confession was the
“product of psychological coercion and duress,” language that suggests Loza’s counsel intended to dispute
the voluntariness of Loza’s confession, not its credibility. The Ohio Supreme Court perhaps believed it
should reiterate that Fisher’s testimony could not have been introduced to contest voluntariness at trial.
No. 11-3453 Loza v. Mitchell Page 23

Avoiding these pitfalls does not require citation of our cases—indeed, it
does not even require awareness or our cases, so long as neither the
reasoning nor the result of the state-court decision contradicts them.

Early v. Packer, 537 U.S. 3, 8 (2003). “[O]ur focus on the ‘unreasonable application’
test under Section 2254(d) should be on the ultimate legal conclusion that the state court
reached.” Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc) (per curiam); see
also Hurtado v. Tucker, 245 F.3d 7, 20 (1st Cir. 2001) (“The ultimate question on habeas
. . . is not how well reasoned the state court decision is, but whether the outcome is
reasonable . . . . [E]ven a poorly reasoned state opinion does not mean that the outcome
represents an unreasonable application.”); Hennon v. Cooper, 109 F.3d 330, 335 (7th
Cir. 1997) (“It doesn’t follow that the criterion of a reasonable determination is whether
it is well reasoned. It is not. It is whether the determination is at least minimally
consistent with the facts and circumstances of the case.”).

The Ohio Supreme Court’s decision that Fisher’s testimony was properly
excluded was not contrary to or an unreasonable application of clearly established
federal law. The “clearly established Federal law,” § 2254(d)(1), at issue is that a
defendant’s right to present a complete defense is violated “when a state court excludes
important evidence on the basis of an arbitrary, mechanistic, or per se rule, or one that
is disproportionate to the purposes it is designed to serve.” Alley, 307 F.3d at 394; see
also Holmes, 547 U.S. at 324; Scheffer, 523 U.S. at 308. Crane presents one such
arbitrary rule: a “blanket exclusion” of testimony about the circumstances of a
defendant’s confession on the ground that it is related to voluntariness, not credibility.
See Crane, 476 U.S. at 690. Crane does not stand for the proposition that all crucial,
relevant evidence must be admitted, but only that it must not be excluded solely on the
basis of this rule. Egelhoff, 518 U.S. at 53.

The Ohio Supreme Court did not apply a “mechanistic, per se” rule that evidence
concerning the circumstances of Loza’s confession had to be excluded because it related
to voluntariness, not credibility. Alley, 307 F.3d at 394. Rather, it “made an individual
determination [that Fisher’s testimony was properly excluded] . . . based on the facts
specific to [Loza’s] case.” Id. Specifically, after referring to Crane, it clearly and in
No. 11-3453 Loza v. Mitchell Page 24

detail noted the evidence in the record other than Dr. Fisher’s testimony pertaining to
credibility. The Ohio Supreme Court noted that the trial court had determined Loza’s
confession to be voluntary, but it also observed that Loza was permitted to present other
evidence bearing on the credibility of his confession. It stated that the jury had the
opportunity to view the videotape of Loza’s confession, observe the “tone and manner
of the interrogation, the number of officers present, the physical characteristics of the
room, and the length of the interrogation.” Loza, 641 N.E.2d at 1094. Thus, it “had the
opportunity to evaluate the credibility of the appellant and to give the confession its
appropriate probative weight.” Id. Loza argues that Fisher’s testimony would have
provided the jury with additional evidence about Loza’s psychological characteristics
that would have helped it weigh the credibility of his confession. Although this may be
true, the Ohio Supreme Court reasonably concluded that Crane did not require this
evidence to be admitted.5

The Ohio Supreme Court’s decision is properly characterized as a determination
that, given the ample evidence going to credibility, the Crane rule did not require Dr.
Fisher’s testimony, a rule embodying the principle that “the introduction of relevant
evidence can be limited by the state for a valid reason.” Egelhoff, 518 U.S. at 53. In
short, the Ohio Supreme Court did not exclude Dr. Fisher’s testimony arbitrarily. Thus,
the Ohio Supreme Court’s decision was not contrary to or an unreasonable application
of Crane, and Loza is not entitled to habeas relief on this ground.

VI.

Loza argues that the Ohio Court of Appeals’s decision that Loza’s trial counsel
was not ineffective for failing to adequately investigate and present evidence regarding
Loza’s cultural background and family history was based on an unreasonable

5
The district court observed that the Ohio Supreme Court could have held that the trial court
properly excluded Fisher’s testimony under Ohio’s rules of evidence, which prohibit expert witnesses from
offering opinions as to the truthfulness of a witness’s statement. Loza v. Mitchell, 705 F.Supp.2d 773, 791
(S.D. Ohio 2010) (citing State v. Boston, 545 N.E.2d 1220 (Ohio 1989), overruled on other grounds by
State v. Dever, 596 N.E.2d 426 (Ohio 1992)). The parties dispute whether Fisher’s testimony could have
been excluded on this basis. We decline to consider this issue, which is not necessary to resolve the
question before us.
No. 11-3453 Loza v. Mitchell Page 25

determination of the facts and was an unreasonable application of Strickland v.
Washington, 466 U.S. 668 (1984), which sets forth the standard assessing ineffective
assistance claims.

Prior to trial, Loza’s trial counsel requested funds to travel to Los Angeles to
investigate Loza’s background and family history. Loza’s trial counsel stated their intent
to review Loza’s medical, educational, juvenile court, and employment records, in
addition to speaking with Loza’s family, priest, neighbors, police officers, and others.
Loza’s trial counsel also requested funds to hire a mitigation specialist to investigate
Loza’s case. The trial court granted both motions.

At the guilt phase of trial, Loza’s trial counsel attempted to introduce the
testimony of Fisher, the clinical psychologist, in order to explain the psychological
characteristics that would have influenced Loza’s confession. The court excluded this
testimony. At the mitigation phase of trial, Fisher testified about Loza’s abandonment
by his father and his experience living with his sister in Mexico until they could join
their mother, who was working to support them in the United States. Fisher described
the racism and violence that Loza encountered in Los Angeles and his loose affiliation
with gangs. Fisher also explained some of the psychological factors underlying Loza’s
relationship with Dorothy Jackson, including his strong desire to have his own family.
Fisher opined that Loza’s confession was consistent with Loza’s desire to protect
Dorothy Jackson and his tendency to “switch into that super-mach, super grown-up,
super-tough guy persona where he takes all the blame.”

Loza’s trial counsel also presented testimony from several of Loza’s family
members at the mitigation phase of trial. Beatriz Loza, Loza’s mother, said that after
Loza’s father left her for another woman, she went to the United States to find work and
paid a smuggler to bring her children into the United States. She said that as a child,
Loza was picked on because he was perceived to be different. Viviana Loza, Loza’s
sister, described Loza’s anger at their father and Loza’s desire to have a big family so
that he could pass his name on to his children and restore the family name. Viviana
Loza said that her mother instilled in them the importance of sticking by one’s family.
No. 11-3453 Loza v. Mitchell Page 26

Finally, Samantha Ceja, Loza’s seven-year-old half-sister, testified that Loza was her
favorite brother and that he gave her a pet rabbit and dolls before he left Los Angeles.

In Loza’s petition for post-conviction relief in state court, Loza argued that his
trial counsel was ineffective. He argued that his trial counsel failed to consult a cultural
expert who could have testified regarding the cultural factors influencing Loza’s
confession and provided the jury with information on Mexican culture that could have
helped it contextualize mitigation evidence from Loza’s family. Loza supported this
claim with affidavits from his trial counsel stating that they did not contact the Mexican
consulate in connection with Loza’s case because they had never worked with a Mexican
client. Loza presented an affidavit from Susan Keefe, a professor of anthropology,
opining that “[i]t would be consistent with Mr. Loza’s Mexican values” to confess to the
killings in order to protect his girlfriend and baby and that “[a] real Mexican man would
respond to threats against his family, protect his family at all costs, and stand his ground
in the most difficult circumstances.” He also presented the affidavit of Julia Hawood,
a clinical psychologist, who explained how machismo, “the cultural concept of Mexican
manliness,” influenced Loza.

Loza also argued that his trial counsel failed to present additional mitigating
evidence from Loza’s family. He presented affidavits from his mother, Viviana Loza,
and family members who did not testify at trial—his grandmother, Emma Rodes; his
sister, Beatriz Loza6; and his brother, Jesus Loza. Loza’s mother’s affidavit contained
more information about Loza’s past. She explained that he was beaten by teachers and
children at his school in Mexico, that he was a sickly child, and that Dorothy Jackson
previously became pregnant by Loza but miscarried the baby. Viviana Loza also stated
that Loza was picked on in school in Mexico and the United States, that he was a sickly
child, and that he was slow in learning to speak. Rodes, who was Loza’s primary
caretaker when he was a child, stated that Loza had asthma and bronchitis as a child and
that he was beaten by his mother’s boyfriend. Rodes said that in high school, Loza once
“took all the blame” for friends who were caught stealing stereos. Finally, Jesus Loza’s

6
Loza’s mother and sister share the same name.
No. 11-3453 Loza v. Mitchell Page 27

affidavit stated that Loza was once attacked by members of a gang that he refused to join
and that he later affiliated with a different gang, one that “did not engage in drive-by
shootings,” strictly “for social purposes.”

The Butler County Court of Common Pleas denied Loza’s petition for relief, and
the Ohio Court of Appeals affirmed.

“In all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.” U.S. Const. amend VI. The Sixth Amendment
right to counsel is “the right to the effective assistance of counsel.” McMann v.
Richardson, 397 U.S. 759, 771 n.14 (1970). In order to demonstrate ineffective
assistance of counsel, a defendant must make two showings: deficient performance and
prejudice. Strickland, 466 U.S. at 687.

First, the defendant must demonstrate that his counsel’s performance was
deficient. Id. He must do so by showing that “counsel’s representation fell below an
objective standard of reasonableness.” Id. at 687–88. The Supreme Court has “declined
to articulate specific guidelines for appropriate attorney conduct and instead [has]
emphasized that ‘[t]he proper measure of attorney performance remains simply
reasonableness under prevailing professional norms.’” Wiggins v. Smith, 539 U.S. 510,
521 (2003) (quoting Strickland, 466 U.S. at 688).

“A counsel’s failure to make a reasonable investigation of a defendant’s
psychiatric history and family background, and to present mitigating evidence to the jury
at sentencing, can constitute ineffective assistance.” Clark v. Mitchell, 425 F.3d 270,
284 (6th Cir. 2005) (citing Wiggins, 539 U.S. at 522–23.). “[C]ounsel has a duty to
make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.” Strickland, 466 U.S. at 691. “Strategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable.” Id. at 690. “[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Id. at 690–91. “In assessing
whether a defendant’s counsel was ineffective at [a] mitigation hearing for failing to
No. 11-3453 Loza v. Mitchell Page 28

introduce certain evidence, the focus must be on whether the investigation supporting
counsel’s decision not to introduce mitigating evidence of the defendant’s background
was itself reasonable.” Clark, 425 F.3d at 284 (citing Wiggins, 539 U.S. at 523). “In
assessing the reasonableness of an attorney’s investigation . . . a court must consider not
only the quantum of evidence already known to counsel, but also whether the known
evidence would lead a reasonable attorney to investigate further.” Wiggins, 539 U.S. at
527.

Second, the defendant must demonstrate that counsel’s deficient performance
prejudiced his defense. Strickland, 466 U.S. at 687. “This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Id. “The defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694. “When a defendant challenges a conviction, the
question is whether there is a reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt.” Id. at 695. When a defendant
challenges a death sentence, “the question is whether there is a reasonable probability
that, absent the errors, the sentencer . . . would have concluded that the balance of
aggravating and mitigating circumstances did not warrant death.” Id.

Establishing that a state court’s application of Strickland is unreasonable under
§ 2254(d) is a “difficult” task. Harrington, 131 S.Ct. at 788.

The standards created by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review is doubly so. The
Strickland standard is a general one, so the range of reasonable
applications is substantial. Federal habeas courts must guard against the
danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d) applies, the question
is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.

Id. (internal quotation marks and citations omitted).
No. 11-3453 Loza v. Mitchell Page 29

The Ohio Court of Appeals concluded with respect to Loza’s ineffective
assistance of counsel claim:

The record contains evidence that Loza’s trial counsel offered
evidence that Loza confessed to “protect” Jackson and his unborn child
during the guilt and mitigation phases of Loza’s trial. During the guilt
phase of the trial, Loza’s trial counsel sought to introduce the testimony
of Dr. Roger Fisher, a clinical psychologist. The proffered testimony
was that Loza confessed because “his background, psychological
makeup, and his personal code of conduct required that he not snitch and
that he protect Dorothy.” The trial court excluded this testimony during
the guilt phase of the trial and the Ohio Supreme Court upheld this ruling
on direct appeal. However, Dr. Fisher’s testimony was allowed during
the mitigation phase of the trial. Since Keefe’s “cultural evidence” is
merely cumulative of or alternative to Dr. Fisher’s testimony, Loza has
failed to establish ineffective assistance of counsel. Finally, Loza argues
that his trial counsel was ineffective for failing to present mitigating
evidence from Loza’s family. In support of this argument, Loza
submitted affidavits from his grandmother, sister, and brother. However,
the record reveals that Loza’s mother and two of his other sisters testified
about Loza’s family history and general character during the mitigation
phase of his trial. Since the affidavits submitted by Loza are merely
cumulative to the evidence presented at trial, he has failed to establish
ineffective assistance of counsel. Accordingly, Loza’s claims of
ineffective assistance of counsel are without merit, and his second
assignment of error is overruled.

Loza, 1997 WL 634348, at *4 (citations omitted).

Loza argues that the Ohio Court of Appeals’s decision was based on an
unreasonable determination of the facts. First, he contends that the court erred by
concluding that the testimony provided by Fisher, a psychologist, was similar to
testimony that would have been offered by a cultural expert such as Keefe. This factual
determination was not unreasonable. At the mitigation phase of Loza’s trial, Fisher
testified about Loza’s difficult childhood and its effect on Loza’s outlook. Keefe’s
affidavit discussed largely the same facts, but from a slightly different angle. Keefe
explained Loza’s actions as a product of his cultural heritage, while Fisher attributed
them to Loza’s psychological make-up. For example, Keefe opined that Loza confessed
to protect Dorothy Jackson and his unborn baby, consistent with his image of “[a] real
No. 11-3453 Loza v. Mitchell Page 30

Mexican man.” Fisher said essentially the same thing, testifying that Loza’s confession
was consistent with his desire to protect Dorothy Jackson and his tendency to “switch
into that super-mach, super grown-up, super-tough guy persona where he takes all the
blame.” In light of this and other similarities, the court’s factual determination was not
unreasonable. Second, Loza argues that the court failed to consider the affidavits of
Hawood and Loza’s trial counsel. But the fact that the Ohio Court of Appeals did not
mention these pieces of evidence in its opinion does not mean that it did not consider
them. Nothing in the court’s opinion suggests that it failed to do so. Loza cannot
demonstrate that the court’s decision was based on an unreasonable determination of the
facts.

Next, Loza argues that Ohio Court of Appeals unreasonably applied Strickland
because it failed to identify and analyze its requirements for proving an ineffective
assistance of counsel claim. However, “a state court need not cite or even be aware of
[the Supreme Court’s] cases” as long as its decision is not contrary to or an unreasonable
application of clearly established federal law. Harrington, 131 S. Ct. at 784; Early,
537 U.S. at 8. The fact that the court’s analysis was less than explicit does not mean that
its decision was unreasonable.

Finally, Loza argues that the Ohio Court of Appeals unreasonably concluded that
Loza’s failure to present additional evidence from a cultural expert and Loza’s family
members at the mitigation phase of trial was not deficient and did not prejudice Loza
because the evidence was cumulative. “Our cases reject a requirement that any
later-identified cumulative mitigating evidence must have been introduced in order for
counsel to be effective.” Clark, 425 F.3d at 286 (holding that counsel was not deficient
for failing to present additional evidence regarding petitioner’s family history); see also
Smith v. Mitchell, 348 F.3d 177, 200 (6th Cir. 2003) (holding that counsel was not
deficient and that petitioner was not prejudiced because “virtually all of the mitigating
elements that [petitioner] complains of” were presented). “[I]n order to establish
prejudice, the new evidence that a habeas petitioner presents must differ in a substantial
way—in strength and subject matter—from the evidence actually presented at
No. 11-3453 Loza v. Mitchell Page 31

sentencing.” Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir. 2005). Here, as in Hill, the
evidence Loza contends should have been presented “resembles the evidence the jury
did have before it in weighing the aggravating and mitigating factors.” Id. The
testimony of Keefe and Hawood resembles Fisher’s testimony that Loza confessed to
protect his girlfriend and unborn baby, consistent with his idea of manhood and personal
code of conduct. The testimony of Rodes, Beatriz Loza, and Jesus Loza resembles the
testimony of Loza’s mother, Viviana Loza, and Ceja that Loza suffered hardships as a
child, was taunted and abused, and valued family, of which he was protective. “Nothing
in this new testimony suggests that it would have stood out to the jury in such a way as
to change the calculation the jury previously made when weighing the aggravating and
mitigating circumstances of the murder[s].” Hill, 400 F.3d at 319.

For these reasons, the Ohio Court of Appeals’s decision that Loza’s trial counsel
was not ineffective was not based on an unreasonable determination of the facts or an
unreasonable application of clearly established federal law. Loza is not entitled to
habeas relief on this ground.

VII.

Loza argues that the Ohio Supreme Court unreasonably applied clearly
established federal law when it held that the trial court’s charge to the jury did not coerce
the jury’s verdict.

On the third day of deliberations, the jury submitted a question to the court: “To
whom it may concern[:] We the jury would like to have clarified, how to decide a verdict
on a specification to a count when a unanimous decision cannot be reached? The jury
instructions have not made this clear to us.” The trial court issued the following
supplemental instruction and charge:

Again, a word of caution, ladies and gentlemen. After you’ve
commenced your deliberations, it’s important that the Court chooses its
words carefully and that you refrain from any remarks that may affect the
rights of either party to this action or which may disclose your opinion
as a member of the jury. We realize that this is a new and a difficult
assignment for you and the process of discussion and deliberation in the
No. 11-3453 Loza v. Mitchell Page 32

jury room is necessarily slow and requires consideration and patience.
The secrecy which surrounds your efforts presents—prevents others,
including the Court, from knowing when your efforts will result in a
verdict. Now, I received the following note from the foreman, which
says, “We the jury would like to have clarified how to decide a verdict
on a specification to a count when a unanimous decision cannot be
reached. The jury instructions have not made this clear to us.”
The Court recognizes, ladies and gentlemen, the amount of time
that you have spent and you’ve diligently applied yourself to attempting
to resolve the numerous matters that are brought to your attention by way
of verdicts in this case, the verdict forms. And that you have—You
started your deliberations on Tuesday afternoon and here it is late
Thursday morning and you have deliberated some over sixteen and a half
hours, according to my calculations; and obviously there are still
problems here with arriving at a conclusion.
Now, with respect to this specific inquiry, if the jury is unable to
agree on a—to a verdict on a particular specification, as that is my
understanding of this note, and you have exhausted all reasonable efforts
to resolve your differences and you are convinced that further
deliberations on that specification would not serve a useful purpose, the
foreman shall note on the form, the verdict form, that particular
specification, that the jury is unable to agree on a verdict on that
specification, and sign the form as foreman. You will then proceed to the
next verdict form as instructed on the bottom of the form, which you’ve
just signed.
Now, I have some comments here that may be of some assistance.
The principal mode provided by our constitution and laws for deciding
questions of fact in criminal cases is by jury verdict. In a large
proportion of cases, absolute certainty cannot be attained or expected.
Although the verdict must reflect the verdict of each individual juror and
not mere acquiescence in the conclusions of your fellows, each question
submitted to you should be examined with proper regard and deference
to the opinions of others. You should consider it desirable that this case
be decided. You’re selected in the same manner and from the same
source as any future jury would be. There’s no reason to believe that the
case will ever be submitted to a jury more capable, impartial or
intelligent than this one. Likewise, there’s no reason to believe that more
or clearer evidence will be produced by either side. It is your duty to
decide the case if you can conscientiously do so. You should listen to
one another’s arguments with a disposition to be persuaded. Do not
hesitate to reexamine your views and change your position if you are
convinced that it is erroneous. If there is disagreement, all jurors should
reexamine their positions given that a unanimous verdict has not been
No. 11-3453 Loza v. Mitchell Page 33

reached. Jurors who favor a particular verdict should consider whether
their doubt is reasonable. Considering that it is not shared by others,
whether their doubt or conviction is reasonable, considering it’s not
shared by others equally honest, you’ve heard the same evidence with the
same desire to arrive at the truth and under the same oath. Likewise,
jurors for a different verdict should not—should ask themselves whether
they might not reasonably doubt the correctness of a judgment not
concurred in by all other jurors. Now, bearing in mind these admonitions
and these matters that we bring forth, I’m going to ask you now to return
and—or resume your deliberations.

The jury returned its verdict later that day.

The Ohio Supreme Court rejected Loza’s argument that the trial court erred by
giving the charge to the jury:

The supplemental charge that the trial court gave was previously
approved in State v. Howard [537 N.E.2d 188 (Ohio 1989)], paragraph
two of the syllabus.
After deliberating for a protracted period of time, the jury asked
for clarification on how to decide a specification if a unanimous verdict
could not be reached. The court advised the jury to exhaust all
reasonable efforts to reach a unanimous verdict, gave the Howard charge,
and told the foreman to note on the verdict any failure to reach a
unanimous verdict. After continuing its deliberations for several more
hours, the jury reached a unanimous verdict.
Because the trial court gave a supplemental instruction that was
previously approved by this court, appellant’s twenty-third proposition
of law is without merit.

Loza, 641 N.E.2d at 1104.

As an initial matter, Loza argues that AEDPA’s deferential standard of review
does not apply to this claim. First, he contends that the Ohio Supreme Court decided his
claim on the basis of state law and, therefore, it did not adjudicate his federal claim “on
the merits” for purposes of § 2254(d). Loza is incorrect. The Ohio Supreme Court cited
its decision in Howard holding that the jury charge from Allen v. United States, 164 U.S.
492 (1896), is unduly coercive but approving another instruction, the Howard charge,
that “avoids the pitfalls of the traditional Allen charge.” Ohio v. Howard, 537 N.E.2d
No. 11-3453 Loza v. Mitchell Page 34

188, 193 (Ohio 1989). The fact that the Ohio Supreme Court cited its previous decision
analyzing this constitutional issue, as opposed to reciting the analysis again, does not
mean that it decided this issue on the basis of state law. See Early, 537 U.S. at 8
(applying § 2254(d) to petitioner’s claim where the California Court of Appeals relied
on California Supreme Court decisions—which imposed even greater restrictions on jury
instructions than Allen—in the course of rejecting petitioner’s claim that the trial court’s
jury instructions were coercive). Second, Loza contends that the Ohio Supreme Court
failed to identify and explain controlling federal law. As previously discussed, “a state
court need not cite or even be aware of [the Supreme Court’s] cases” in order for
AEDPA deference to apply. Harrington, 131 S. Ct. at 784; Early, 537 U.S. at 8. Thus,
the Ohio Supreme Court’s decision is entitled to deference under § 2254(d).

When a jury is deadlocked, a trial court may give a supplemental instruction
encouraging the jury to reach a verdict if possible. See Allen, 164 U.S. at 501–02. The
constitutionality of an “Allen” or “dynamite” charge turns on whether the charge is
coercive. See Lowenfield v. Phelps, 484 U.S. 231, 237 (1988). In order to determine
whether a jury was coerced, “we consider the supplemental charge given by the trial
court ‘in its context and under all the circumstances.’” Id. at 237 (quoting Jenkins v.
United States, 380 U.S. 445 (1965) (per curiam)). The Howard charge is “no more
coercive than the Allen charge.” Brown v. Bradshaw, 531 F.3d 433, 437 (6th Cir. 2008).
“As in Allen and Lowenfield, the [Howard charge] merely encourage[s] the jurors to
consider each other’s views and to ask themselves whether their own views [are]
reasonable under the circumstances.” Id.

Loza does not challenge the language of the Howard charge, but, rather, he
argues that it was inappropriate for the trial court to give it. Loza interprets the jury’s
note as a request for guidance on how to fill out the verdict forms related to the death
penalty specifications. He concedes that the trial court properly instructed the jury on
this point, but he contends that the trial court erred by also giving the Howard charge,
which was not responsive to the jury’s request.
No. 11-3453 Loza v. Mitchell Page 35

The jury’s note is ambiguous. It could be interpreted as requesting guidance on
how to resolve a deadlock or simply asking how to indicate this deadlock on the verdict
forms. The Ohio Supreme Court interpreted the jury’s note as a request “for clarification
on how to decide a specification if a unanimous verdict could not be reached.” Loza,
641 N.E.2d at 1104. Given the ambiguity of the note, the Ohio Supreme Court’s factual
determination that the jury was asking for guidance on how to resolve a deadlock was
not unreasonable. See 28 U.S.C. § 2254(d)(2). The Ohio Supreme Court did not
unreasonably apply clearly established federal law in determining that the Howard
charge was appropriate under the circumstances of this case. We decline to grant habeas
relief on this ground.

VIII.

Loza argues that the Ohio Court of Appeals unreasonably applied clearly
established federal law when it rejected his claim that he was selectively prosecuted for
capital offenses based on invidious racial discrimination.7 Amicus, the Government of
Mexico, also argues in support of Loza’s claim.

Loza raised his selective prosecution claim in state post-conviction proceedings.
He filed a motion to conduct discovery on the allegedly discriminatory enforcement of
the death penalty in Butler County. The Butler County Court of Common Pleas denied
Loza’s motion. The Ohio Court of Appeals ruled that the court properly denied Loza’s
motion because he could not meet the requirements for discovery on a selective
prosecution established in United States v. Armstrong, 517 U.S. 456 (1996).8 Loza, 1997

7
Loza’s claim, as presented to the district court, contained four sub-parts. Loza argued that:
(1) he was selectively charged with capital offenses due to pervasive racism in Butler County, Ohio; (2) the
death penalty is disproportionately imposed on Hispanics in Ohio; (3) he was denied a representative jury
from a fair cross-section of the community; and (4) racial minorities were excluded from the jury at his
trial. The district court granted a certificate of appealability as to the entire claim, but Loza raises only the
first sub-part on appeal. He has abandoned the other arguments, and we do not consider them. Bradshaw,
621 F.3d at 413–14.
8
In order to obtain discovery from the Government on a selective prosecution claim, a defendant
must present “some evidence tending to show the existence of the essential elements of the [selective
prosecution] defense”—discriminatory effect and discriminatory intent. Armstrong, 517 U.S. at 469
(internal quotation marks and citation omitted). The Ohio Court of Appeals held that Loza did not present
any evidence of discriminatory effect because the general statistics on race and sentencing that he
presented were insufficient to demonstrate that race affect the prosecution of his case. Loza, 1997 WL
No. 11-3453 Loza v. Mitchell Page 36

WL 634348, at *7. The court also denied his selective prosecution claim on the merits.
Loza raised his selective prosecution claim again in his habeas petition. The district
court granted Loza’s motion for leave to conduct discovery on the claim. The district
court considered the new evidence that was produced9 and denied Loza’s selective
prosecution claim.

The district court issued its decision in Loza’s case prior to the Supreme Court’s
decision in Cullen v. Pinholster, — U.S. —, 131 S. Ct. 1388 (2011). In Pinholster, the
Court held that “[i]f a claim has been adjudicated on the merits by a state court, a federal
habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was
before that state court.” Id. at 1400. Pinholster emphasized that “district courts are
precluded from conducting evidentiary hearings to supplement existing state court
records when a state court has issued a decision on the merits with respect to the claim
at issue.” Ballinger v. Prelesnik, 709 F.3d 558, 561 (6th Cir. 2013). In Harrington, the
Court clarified the meaning of “on the merits,” stating: “When a federal claim has been
presented to a state court and the state court has denied relief, it may be presumed that
the state court adjudicated the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary.” Harrington, 131 S. Ct. at 784–85.
Loza’s selective prosecution claim was adjudicated on the merits in state court and,
therefore, Pinholster requires us to consider only the evidence that was before the state
court when reviewing Loza’s claim.

634348, at *5.
9
This new evidence included depositions of Knable, officers in the Middletown Police
Department, and the prosecutors at Loza’s trial. During his deposition, Knable admitted that on a video
of the crime scene, he could be heard referring to Loza as a “wetback from California.” The new evidence
also included the affidavit of Janet Dickens, a social worker who helped place Dorothy Jackson in foster
care, and a report by Dickens. The report stated that Dorothy Jackson’s foster mother expressed concern
to Dickens about the girl. According to the foster mother, Dorothy Jackson “had admitted to [the foster
mother’s grandson that] she did kill her mother.” Loza presented a copy of the report with a stamp
indicating that it was received by the Butler County Prosecuting Attorney’s Office in June 1992 while
Loza’s case was on direct appeal. Loza deposed the prosecutors on appeal, who denied having seen the
report and said that if they had been aware of it, they would have disclosed it to Loza pursuant to Brady
v. Maryland, 373 U.S. 83 (1963), which requires prosecutors to disclose exculpatory evidence to the
accused. Loza claims that he did not discover Dickens’s report until he conducted discovery on this claim
in federal court.
No. 11-3453 Loza v. Mitchell Page 37

Loza argues that he tried to develop his claim in state court, but the state court
denied him an evidentiary hearing, which he claims violated his due process rights.
Loza compares his case to Panetti v. Quarterman, 551 U.S. 930 (2007). In Panetti, the
Supreme Court held that the state court unreasonably applied clearly established federal
law when it failed to follow the procedural requirements established in Ford v.
Wainwright, 477 U.S. 399 (1986), for determining the competency of a prisoner to be
executed. Panetti, 551 U.S. at 948. The Court held that because the state court’s
adjudication of the petitioner’s incompetency claim resulted from its failure to follow
the procedures established in Ford, the state court’s ruling on this claim was not entitled
to AEDPA deference. Id. Loza’s case is distinguishable from Panetti. Loza does not
demonstrate that Ohio Court of Appeals’s decision that he did not satisfy the
requirements for an evidentiary hearing on a selective prosecution claim was contrary
to or an unreasonable application of Armstrong. There is no indication that the court’s
ruling violated Loza’s rights. Panetti does not provide a reason for refusing to accord
AEDPA deference to the Ohio Court of Appeals’s decision.

Loza also argues that the State failed to provide him with Brady material.10 As
a result, he says, the state court did not have the benefit of this evidence when it ruled
on his selective prosecution claim. In Brown v. Smith, we held that a habeas claim has
not been “adjudicated on the merits” when “new, substantial evidence supporting [the]
claim comes to light during the proceedings in federal district court,” and, therefore, the
state court’s decision is not entitled to AEDPA deference. 551 F.3d 424, 429 (6th Cir.
2008). However, as several unpublished decisions of this court have recognized, it is
unlikely that Brown remains good law in light of Pinholster and Harrington. Preslesnik,
709 F.3d at 561–62; see also Moritz v. Lafler, No. 12-1222, 2013 WL 1777127, at *8 n.5
(6th Cir. Apr. 25, 2013); Williams v. Lafler, 494 F. App’x 526, 529 (6th Cir. 2012).
Therefore, we conclude that the state court adjudicated Loza’s claim on the merits, and

10
Dissenting in Pinholster, Justice Sotomayor noted that the majority’s opinion does not foreclose
the possibility that “[t]here may be situations in which new evidence supporting a claim adjudicated on
the merits gives rise to an altogether different claim”—for example, when evidence withheld by a
prosecutor relating to one claim gives rise to a separate claim under Brady. 131 S.Ct. at 1417 n.5. We
need not consider this issue because Loza has not raised a Brady claim. He simply points to an alleged
violation that caused evidence to be “new” to him in his habeas proceeding.
No. 11-3453 Loza v. Mitchell Page 38

we apply AEDPA’s deferential standard of review, and consider only the evidence that
was before the state court when reviewing Loza’s claim.

We now turn to the merits of Loza’s claim. “A selective-prosecution claim is not
a defense on the merits to the criminal charge itself, but an independent assertion that the
prosecutor has brought the charge for reasons forbidden by the Constitution.”
Armstrong, 517 U.S. at 463. Prosecutors possess “‘broad discretion’ as to whom to
prosecute.” Wayte v. United States, 470 U.S. 598, 607 (1985) (quoting United States v.
Goodwin, 457 U.S. 368, 380 n.11 (1982)). As a result, prosecutorial decisions enjoy a
“‘presumption of regularity.’” Armstrong, 517 U.S. at 464 (quoting United States v.
Chemical Foundation, Inc., 272 U.S. 1, 14 (1926)). “[S]o long as the prosecutor has
probable cause to believe that the accused committed an offense defined by statute, the
decision whether or not to prosecute, and what charge to file or bring before a grand
jury, generally rests entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357,
364 (1978) (footnote omitted).

Nonetheless, prosecutorial discretion is not “unfettered.” United States v.
Batchelder, 442 U.S. 114, 124–25 (1979). The decision to prosecute cannot be
“deliberately based upon an unjustifiable standard such as race, religion, or other
arbitrary classification.” Wayte, 470 U.S. at 608 (internal quotation marks and citations
omitted). A criminal defendant bears the burden of proving that his prosecution violated
equal protection standards. McCleskey v. Kemp, 481 U.S. 279, 292 (1987). “In order
to dispel the presumption that a prosecutor has not violated equal protection, a criminal
defendant must present ‘clear evidence to the contrary.’” Armstrong, 517 U.S. at 465
(quoting Chemical Foundation, Inc., 272 U.S. at 14–15). This standard is demanding.
Id. at 463. A defendant must demonstrate that the prosecutorial policy “‘had a
discriminatory effect and that it was motivated by a discriminatory purpose.’” Id. at 465
(quoting Wayte, 470 U.S. at 608)). In a case where a defendant alleges unlawful
discrimination based on race, he “must show that similarly situated individuals of a
different race were not prosecuted” in order to establish discriminatory effect. Id.;
accord McCleskey, 481 U.S. at 292.
No. 11-3453 Loza v. Mitchell Page 39

The Ohio Court of Appeals rejected Loza’s selective prosecution claim, stating:

Loza argues that since Jackson, who is Caucasian, was similarly
situated and not prosecuted for murder, he has established a claim of
selective prosecution. However, unlike Loza, Jackson was a juvenile at
the time that the murders were committed. Further, since the amount of
evidence implicating Loza was significant and substantial, there was a
race-neutral explanation for the prosecutor’s decision. Therefore, Loza
failed to show that the decision to prosecute him for murder was based
upon his race and the trial court properly dismissed his sixth claim for
relief.

Loza, 1997 WL 634348, at *5 (citations omitted).

The Ohio Court of Appeals’s decision was not unreasonable. Loza argues that
he was similarly situated to Dorothy Jackson, but that she was not prosecuted for
murder.11 He contends that the fact that Jackson was a juvenile who was ineligible for
the death penalty does not establish that she was not similarly situated to Loza. Even if
we accepted this argument, Loza ignores the “significant and substantial” evidence
implicating him in the killings, including his confession and Dorothy Jackson’s
statement to investigators that Loza killed her family. No such evidence implicated
Dorothy Jackson in the killings. The court’s determination that Loza and Jackson were
not similarly situated and, therefore, that Loza could not demonstrate the discriminatory
effect necessary to succeed on his selective prosecution claim, was not unreasonable.

Loza argues that the decisionmakers in his case acted with discriminatory
purpose and, therefore, he is entitled to relief on this claim. First, Loza references
statistical data included in his petition for post-conviction relief in state court that the
death penalty is disproportionately imposed in Butler County, Ohio on defendants who
are racial minorities and kill white victims. However, such general statistical evidence
is insufficient to establish discriminatory purpose. McCleskey, 481 U.S. at 286, 292–97

11
Loza also argues that he and Dorothy Jackson was treated differently in other ways. For
example, he claims that employees at the juvenile detention center where Dorothy Jackson was held
laundered her clothes before they were sent for forensic analysis but that Loza’s clothes were not
laundered. For purposes of our analysis, we do not ask whether Dorothy Jackson was treated differently
from Loza. We ask whether she was similarly situated to Loza and whether authorities nonetheless
unreasonably failed to prosecute her for the same crime.
No. 11-3453 Loza v. Mitchell Page 40

(holding that a study indicating that black defendants and defendants charged with
killing white people are more likely to receive the death penalty was insufficient to
support an inference that the decisionmakers in petitioner’s case acted with
discriminatory purpose); see also Keene v. Mitchell, 525 F.3d 461, 464 (6th Cir. 2008)
(rejecting petitioner’s argument based on statistical evidence of racial disparities in
capital indictments in the county in which petitioner was tried because the petitioner
offered no evidence demonstrating purposeful discrimination in his own case); Coleman
v. Mitchell, 268 F.3d 417, 441–42 (6th Cir. 2001) (acknowledging statistical evidence
of “extremely troubling” racial disparities in the imposition of the death penalty in Ohio
but holding that under McCleskey, this evidence is not enough to demonstrate selective
prosecution).

Loza also argues—based on evidence from the evidentiary hearing in district
court, which we do not consider—that the decisionmakers in his case, specifically
Knable, were motivated by a discriminatory purpose. In Armstrong, the Supreme Court
expressly rejected the argument that when a defendant demonstrates discriminatory
purpose, he need not establish discriminatory effect to succeed on a selective prosecution
claim. Armstrong, 517 U.S. at 467–68; see also Cornwell v. Bradshaw, 559 F.3d 398,
411 (6th Cir. 2009) (emphasizing that under McCleskey and Armstrong, a defendant
must prove both discriminatory purpose and effect). Both showings are required. The
Ohio Court of Appeals reasonably concluded that Loza’s failure to show discriminatory
effect meant that he could not succeed on his claim. Loza is not entitled to habeas relief
on this ground.

IX.

Finally, Loza argues that he is entitled to habeas relief because officials failed
to inform him after his arrest that he had a right to contact the Mexican consulate
pursuant to the Vienna Convention on Consular Relations (“Vienna Convention”). The
Government of Mexico also argues in support of this claim.

Loza raised this argument in state post-conviction proceedings. The Ohio Court
of Appeals rejected his argument:
No. 11-3453 Loza v. Mitchell Page 41

Pursuant to [Ohio Rev. Code § 2953.21(A)(1)], postconviction
relief is dependent upon a showing that “there was such a denial or
infringement of the person’s rights as to render the judgment void or
voidable under the Ohio Constitution or the Constitution of the United
States.” Thus, a petitioner is not entitled to postconviction relief unless
he shows a violation of rights that are constitutional in dimension, which
occurred at the time that he was tried and convicted.
Pursuant to the Supremacy Clause of the United States
Constitution, federal statutes and treaties are the supreme law of the land.
Thus, a treaty has been deemed to be the substantial equivalent of a
federal statute. However, rights under a treaty and rights under a federal
statute are not the equivalent of constitutional rights.

Loza, 1997 WL 634348, *1–2 (citations and footnote omitted). The court agreed with
the Fourth Circuit’s conclusion in Murphy v. Netherland, 116 F.3d 97 (4th Cir. 1997),
that “[e]ven if the Vienna Convention on Consular Relations could be said to create
individual rights (as opposed to setting out the rights and obligations of signatory
nations), it certainly does not create constitutional rights.” Id. at *2 (quoting Murphy,
116 F.3d at 100)). Therefore, it held that “Loza’s claim did not constitute a substantive
ground that entitled him to postconviction relief” under Ohio law. Id.

The Ohio Court of Appeals did not adjudicate Loza’s claim “on the merits,” and,
consequently, AEDPA deference does not apply to our analysis. The Ohio Court of
Appeals reasoned that under Ohio law, post-conviction relief is available only for
violations of the state and federal constitutions, and Loza’s Vienna Convention claim did
not implicate constitutional rights. If a state court does not reach the merits of a
petitioner’s claim, “federal habeas review is not subject to the deferential standard that
applies under AEDPA.” Cone v. Bell, 556 U.S. 449, 472 (2009). “Instead, the claim is
reviewed de novo.” Id.; Rompilla v. Beard, 545 U.S. 374, 390 (2005) (applying de novo
review where state courts did not reach Strickland’s prejudice prong); Wynne v. Renico,
606 F.3d 867, 870 (6th Cir. 2010) (“[W]e give fresh review to [petitioner’s] federal
claim because the state courts addressed only his state law grounds for relief, which
means they did not adjudicate the federal claim on the merits.”) (internal citations,
quotation marks, and alterations omitted).
No. 11-3453 Loza v. Mitchell Page 42

A federal court may grant habeas relief to a prisoner who is in custody “in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3). The Vienna Convention is “a seventy-nine article, multilateral treaty that
governs the establishment of consular relations between nations and defines the
functions of a consulate.” United States v. Emuegbunam, 268 F.3d 377, 388 (6th Cir.
2001). Both the United States and Mexico are signatories to the Vienna Convention.
Vienna Convention on Consular Relations, art. 36, Apr. 24, 1963, 21 U.S.T. 77, 313,
369 [hereinafter Vienna Convention]. In 1969, the United States ratified the Vienna
Convention and the Optional Protocol Concerning the Compulsory Settlement of
Disputes to the Vienna Convention (“Optional Protocol”), Apr. 24, 1963, 21 U.S.T. 325
[hereinafter Optional Protocol]. Medellin v. Texas, 552 U.S. 491, 499 (2008). The
Optional Protocol provides that disputes regarding the interpretation or application of
the Vienna Convention “‘shall lie within the compulsory jurisdiction of the International
Court of Justice [“ICJ”]’ and ‘may accordingly be brought before the [ICJ] . . . by any
party to the dispute being a Party to the present Protocol.’” Medellin, 552 U.S. at 499
(quoting Optional Protocol, 21 U.S.T. at 326). The ICJ is the “principal judicial organ
of the United Nations.” Id. (quoting United Nations Charter, art. 92, 59 Stat. 1051, T.S.
No. 993 (1945)).

Article 36 of the Vienna Convention provides that “if a person detained by a
foreign country ‘so requests, the competent authorities of the receiving State shall,
without delay, inform the consular post of the sending State’ of such detention, and
‘inform the [detainee] of his righ[t]’ to request assistance from the consul of his own
state.”12 Medellin, 552 U.S. at 499 (quoting Vienna Convention, 21 U.S.T. at 101). In
2003, Mexico instituted proceedings against the United States before the ICJ, alleging
that the United States violated the Vienna Convention in the cases of Mexican
nationals—including Loza—who committed crimes in the United States when
authorities failed to inform them of their right to contact the consulate following their
arrests. Case Concerning Avena and Other Mexican Nationals (Mexico v. U.S.), 2004

12
“Under the language of the treaty, the ‘sending State’ is the nation of the arrested foreign
national, and the ‘receiving State’ is the arresting nation.” Emuegbunam, 268 F.3d at 396 n.3.
No. 11-3453 Loza v. Mitchell Page 43

I.C.J. 12, 19, 39 (Mar. 31) [hereinafter Avena]. In March 2004, the ICJ held that the
United States violated the Vienna Convention13 and that the Mexican nationals were
entitled to review and reconsideration of their convictions and sentences. Id. at 70–73.
Shortly after the ICJ’s decision, the United States withdrew from the Optional Protocol.
Medellin, 552 U.S. at 500. Additionally, President George W. Bush issued a
memorandum to the Attorney General stating “that the United States would ‘discharge
its international obligations’ under Avena ‘by having State courts give effect to the
decision.’” Id. at 498 (citation omitted).

The Supremacy Clause provides that “all Treaties made . . . under the Authority
of the United States, shall be the supreme Law of the Land.” U.S. Const. art. VI cl. 2.
“ Under federal law treaties have the same legal effect as statutes.” Emuegbunam,
268 F.3d at 389. However, “[a]s a general rule . . . international treaties do not create
rights that are privately enforceable in the federal courts.” Id.; see also Head Money
Cases, 112 U.S. 580, 598 (1884) (“A treaty is primarily a compact between independent
nations. It depends for the enforcement of its provisions on the interest and the honor
of the governments which are parties to it. If these fail, its infraction becomes the
subject of international negotiations and reclamations . . . . [T]he judicial courts have
nothing to do and can give no redress.”). Even international agreements that directly
benefit private persons “‘generally do not create private rights or provide for a private
cause of action in domestic courts.’” Emuegbunam, 268 F.3d at 389 (quoting
Restatement (Third) of the Foreign Relations Law of the United States § 907, cmt. a
(1987)).

The Supreme Court has expressly declined to decide whether Article 36 of the
Vienna Convention creates individual rights that are enforceable in domestic courts. See
Medellin, 552 U.S. at 506 n.4 (“[W]e thus assume, without deciding, that Article 36
grants foreign nationals an individually enforceable right to request that their consular
officers be notified of their detention, and an accompanying right to be informed by

13
With respect to Loza, specifically, the ICJ held that the United States failed to inform Loza of
his rights and failed to notify the Mexican consulate of Loza’s detention. Avena at 54–55.
No. 11-3453 Loza v. Mitchell Page 44

authorities of the availability of consular notification.”) (internal quotation marks and
citation omitted); Sanchez-Llamas v. Oregon, 548 U.S. 331, 343 (2006) (“[W]e find it
unnecessary to resolve the question whether the Vienna Convention grants individuals
enforceable rights . . . . [W]e assume, without deciding, that Article 36 does
grant . . . such rights.”); Breard v. Greene, 523 U.S. 371, 376 (1998) (stating that the
Vienna Convention “arguably confers on an individual the right to consular assistance
following arrest”).

However, we and other circuit courts hold that “the Vienna Convention does not
create a right for a detained foreign national to consult with the diplomatic
representatives of his nation that the federal courts can enforce.” Emuegbunam, 268
F.3d at 394; see also Gandara v. Bennett, 528 F.3d 823, 829 (11th Cir. 2008) (“[T]he
announced rule is that the Vienna Convention does not confer enforceable individual
rights.”); Cornejo v. Cnty. of San Diego, 504 F.3d 853, 863 (9th Cir. 2007) (“[W]e hold
that Article 36 does not unambiguously give [a foreign national] a privately enforceable
right to be notified.”); United States v. Jimenez-Nava, 243 F.3d 192, 198 (5th Cir. 2001)
(stating that the defendant’s argument “fails to lead to an ineluctable conclusion that
Article 36 creates judicially enforceable rights . . . . Thus, the presumption against such
rights ought to be conclusive.”). But see Jogi v. Voges, 480 F.3d 822, 835–36 (7th Cir.
2007) (holding that Article 36 does create individually enforceable rights). Moreover,
the Supreme Court held in Medellin that the ICJ’s decision in Avena is not of its own
force binding law that can be enforced in domestic courts and that President Bush’s
memorandum did not make the decision binding. Medellin, 552 U.S. at 498–99; see also
Garcia v. Texas, 131 S. Ct. 2866, 2867 (2011) (“[W]e held [in Medellin] that neither the
Avena decision nor the President’s Memorandum purporting to implement that decision
constituted directly enforceable federal law.”).

For these reasons, Loza is not entitled to habeas relief on the ground that
authorities violated his rights under the Vienna Convention.
No. 11-3453 Loza v. Mitchell Page 45

X.

We AFFIRM the district court’s dismissal of Loza’s petition for habeas corpus.
No. 11-3453 Loza v. Mitchell Page 46

______________________________________________________

CONCURRING IN PART AND DISSENTING IN PART
______________________________________________________

HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part.
I agree with the majority except with respect to Loza’s argument under Crane v.
Kentucky, 476 U.S. 683 (1986), as to which I respectfully dissent. The majority holds
that although the Ohio Supreme Court misapplied Crane, its decision was not contrary
to, and did not involve an unreasonable application of, Crane because in deciding to
affirm the exclusion of Fisher’s testimony, the court considered that the jury was able
to view the taped confession in evaluating its credibility, and thus did not apply a
mechanistic or per se rule in violation of Crane. I cannot agree.

Crane held that absent a valid state justification, the blanket exclusion of
competent evidence bearing on the credibility of a confession violates the defendant’s
right to present a complete defense. See Crane, 476 U.S. at 690–91. Crane involved the
same prohibition invoked here–the court had already determined that the confession was
voluntary and on that basis excluded Fisher’s testimony concerning the reliability of the
confession. See State v. Loza, 641 N.E.2d 1082, 1093 (Ohio 1994) (“[T]he trial court
concluded that since it had already made a pretrial determination that Loza’s confession
was voluntary, Dr. Fisher’s testimony was not appropriate during the guilt phase.”). The
Ohio Supreme Court failed to acknowledge that excluding the testimony was error, and,
in fact, relied on the same reason in affirming the trial court. Id. (noting in its decision
to affirm that “the trial court already ruled on the voluntariness of the confession”).

It would seem that this case is squarely governed by Crane. However, the
majority characterizes the relevant question of clearly established federal law as whether
the state court applied an “arbitrary, mechanistic, or per se” rule to affirm the exclusion
of Fisher’s testimony. Although the Supreme Court has described the rule applied in
Crane, and here, as “arbitrary,” see Holmes v. South Carolina, 547 U.S. 319, 326 (2006)
(“Another arbitrary rule was held unconstitutional in Crane . . . .”), the majority finds
that because the Ohio Supreme Court did not apply Crane’s arbitrary rule
No. 11-3453 Loza v. Mitchell Page 47

mechanistically, it made no error cognizable on habeas review.

This determination is flawed. If the relevant question is whether the state applied
an arbitrary, mechanistic, or per se rule, then the fact that the Ohio Supreme Court
applied Crane’s arbitrary rule should be enough to establish a constitutional violation
resulting from an unreasonable application of Crane. By forgiving application of the
arbitrary rule because the Ohio Supreme Court did not apply the rule mechanistically,
or in a per se fashion, the majority moves its own benchmark.

More to the point, however, the Ohio Supreme Court’s discussion of the jury’s
ability to view the videotape of Loza’s confession did not make its application of the
Crane rule to exclude Fisher’s testimony any less arbitrary. In summarizing the
evidentiary value of the videotape, the Ohio Supreme Court noted that by watching it the
jury could “see and hear the tone and manner of the interrogation, the number of officers
present, the physical characteristics of the room, and the length of the interrogation.”
Loza, 641 N.E.2d at 1094. If Loza were claiming simply that his confession was coerced
by the police, the Ohio Supreme Court’s observation might have force. But the manner
in which the interrogation was conducted has no bearing on Loza’s credibility defense.
Loza did not seek to argue to the jury that he confessed because of factors relating to the
physical circumstances of his confession, e.g., that he was physically intimidated or
questioned for long hours in a small space. Rather, Loza sought to explain to the jury
through Fisher’s testimony that he confessed because his particular psychological
makeup and personal history made him uniquely susceptible to the officers’ statements
about the potential harm to Dorothy Jackson and his unborn child if he did not confess,
and that making a false confession would be consistent with his psychological and
personal history. The trial court’s evidentiary ruling denied him the opportunity to
present evidence in support of that defense—his sole explanation for his purportedly
false confession—during the guilt phase of trial, and the Ohio Supreme Court affirmed
without identifying a valid reason to exclude the evidence.

Accordingly, because the trial court excluded Fisher’s testimony for the reason
condemned in Crane and for no other valid reason, and the Ohio Supreme Court failed
No. 11-3453 Loza v. Mitchell Page 48

to recognize and, in fact, repeated the error, I cannot agree with the majority’s
determination that the Ohio Supreme Court decision was not contrary to or an
unreasonable application of Crane.