Scott v. Mitchell

RECOMMENDED FOR FULL-TEXT PUBLICATION
52 Scott v. Mitchell Nos. 98-4272/4321 Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0138P (6th Cir.)
File Name: 00a0138p.06
III. CONCLUSION
Because we conclude that there was no manifest
miscarriage of justice in Scott’s trial or sentencing that would UNITED STATES COURT OF APPEALS
authorize us to issue a federal writ of habeas corpus
countermanding the judgment of the Ohio courts, we FOR THE SIXTH CIRCUIT
REVERSE the order of the district court granting Scott’s _________________
petition for a writ of habeas corpus; we AFFIRM the

;
judgment of the district court in all other respects.

Petitioner-Appellee/ 
JAY D. SCOTT,

Cross-Appellant, 


Nos. 98-4272/4321


v. >


Respondent-Appellant/ 
BETTY MITCHELL, Warden,

Cross-Appellee. 

1
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 95-02037—Kathleen McDonald O’Malley, District
Judge.
Argued: January 24, 2000
Decided and Filed: April 19, 2000
Before: BOGGS, SILER, and BATCHELDER, Circuit
Judges.
_________________
COUNSEL
ARGUED: Stuart A. Cole, OFFICE OF THE ATTORNEY
GENERAL OF OHIO, CAPITAL CRIMES SECTION,
Columbus, Ohio, for Appellant. Timothy F. Sweeney, LAW

1
2 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 51

OFFICE OF TIMOTHY FARRELL SWEENEY, Cleveland, prosecution, any rational trier of fact could have found the
Ohio, for Appellee. ON BRIEF: Stuart A. Cole, Jonathan R. essential elements of the crime beyond a reasonable doubt.
Fulkerson, OFFICE OF THE ATTORNEY GENERAL OF This familiar standard [views evidence] in the light most
OHIO, CAPITAL CRIMES SECTION, Columbus, Ohio, for favorable to the prosecution[, and] thus impinges upon jury
Appellant. Timothy F. Sweeney, LAW OFFICE OF discretion only to the extent necessary to guarantee the
TIMOTHY FARRELL SWEENEY, Cleveland, Ohio, John S. fundamental protection of due process of law.” Jackson v.
Pyle, GOLD, SCHWARTZ & CO., Cleveland, Ohio, for Virginia, 443 U.S. 307, 319 (1979) (internal quotations,
Appellee. citations and footnotes omitted). This claim is not
procedurally defaulted.
_________________
Scott argues that the evidence adduced at trial was
OPINION insufficient to prove that he committed or attempted to
_________________ commit aggravated robbery. If true, this would invalidate his
death sentence, as the only specification that made him death-
ALICE M. BATCHELDER, Circuit Judge. Respondent eligible was “caus[ing] the death of another . . . while
Betty Mitchell (“the Warden”) appeals the district court’s committing or attempting to commit, or while fleeing
grant of a writ of habeas corpus under 28 U.S.C. § 2254 to immediately after committing or attempting to commit
Ohio death row inmate Jay D. Scott. The district court Aggravated Robbery.” To support his argument, Scott notes
granted the writ on the basis of only one of the grounds raised that nothing was taken from the V&E Delicatessen, that he
in his petition, finding all of the other grounds either defaulted entered the store with money, and that O’Neal testified that
or meritless. Scott cross-appeals the court’s rejection of his there had been no discussion of robbery before arriving at the
remaining arguments. After having the benefit of lengthy oral store.
argument, and having given the careful consideration to the
record and the parties’ arguments that the gravity of the We agree with the district court and Ohio Supreme Court
question before us demands, we are convinced that the district that ample evidence was presented to allow a rational jury to
court erred in holding that the ground on which it granted the find Scott guilty of the specification:
writ was not procedurally barred. Because we conclude that
the district court correctly held that the other grounds raised [U]nder R.C. § 2911.01, [...] an attempt to commit armed
by Scott’s petition were either defaulted or without merit, we theft constitutes aggravated robbery. [...] This felonious
will reverse the issuance of the writ. objective is evidenced by the secretive manner in which
Jones parked his car around the corner after dropping off
I. FACTUAL AND PROCEDURAL BACKGROUND [Scott] and O’Neal. Of further relevance is the fact that
[Scott] was aware of a pending robbery charge against
A. Factual History him upon his apprehension.
The facts of the underlying crime are not in significant State v. Scott, 497 N.E.2d at 64. There is no ground here for
dispute, except to the extent that Scott challenges the habeas relief.
sufficiency of the evidence presented at trial to prove these
facts. The following summary is largely taken from the
district court’s Order, which in turn quoted it from the
opinion of the Ohio Supreme Court.
50 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 3

constitutionally required narrowing process, and so the fact On May 6, 1983, Vinnie Prince, owner and operator of the
that the aggravating circumstance duplicated one of the V&E Delicatessen at East 86th Street and Quincy Avenue in
elements of the crime does not make this sentence Cleveland, was shot and killed during an attempted robbery
constitutionally infirm.” Id. at 246. Similarly, the Ohio of her shop. An autopsy revealed that Prince died from a
Legislature “narrow[ed] the class of felony murders subject to gunshot wound to the chest.
the death penalty by excluding those who commit [murder in
the course of an] arson, robbery, burglary or escape, unless Octavia Hickman, who lived near the delicatessen, testified
they are charged with a different aggravating circumstance.” that on the day of the shooting, while walking back to her
State v. Buell, 489 N.E.2d 795, 807 (Ohio 1986); see also home after shopping at the nearby Sav-More Market, she
Ohio Rev. Code § 2929.04(A) (1996) (“Imposition of the noticed a greenish-blue Cadillac without a rear license plate
death penalty for aggravated murder is precluded, unless one pull up across from her house. She observed two black males
or more of the following is specified in the indictment . . . and inside the car, one behind the wheel and the other in the back
proved beyond a reasonable doubt:”). Scott fell within the seat. She later observed another black male come over a
narrowed category of death-eligible felony murderers because nearby fence and dive through the open window of the
he committed or attempted to commit aggravated robbery. Cadillac. The car then drove away.
See Ohio Rev. Code § 2929.04(A)(7) (1996).
Another witness near the deli when the incident occurred
Moreover, even if an overlap were problematic, there is was Clifford Roberson. Roberson was heading toward the
none here. Pursuant to Ohio Rev. Code § 2929.04(A)(7), store with a female companion when they heard a shot fired
Scott’s indictment for aggravated murder added that “either inside the store. He immediately grabbed his friend and
[he] was the principal offender in the commission of the pushed her up against the wall of the building, in an effort to
Aggravated Murder or, if not the principal offender, protect her. When he heard a screen door slam, he turned
committed the Aggravated Murder with prior calculation or around and saw two black males running from the store.
design.” The Ohio Supreme Court has held that this language Roberson testified that the taller man was about 5’11” tall,
is distinct from the definition of felony murder, because in wearing “some type of rag around his head,” and holding a
addition to causing a death during a felony, the defendant long-barreled pistol. Upon opening the store’s door,
must also be proved to have caused the death personally and Roberson observed Prince lying “almost to the door as if she
directly10 or in a premeditated manner. See State v. Jenkins, was trying to chase them or something.” Roberson flagged
473 N.E.2d 264, 280 n.17 (Ohio 1984); State v. Barnes, 495 down a nearby police car and informed the officers of the
N.E.2d 922, 925 (Ohio 1986) (per curiam). situation.
F. Sufficiency of the Evidence Used to Convict Scott Solomon Smith, another witness to this incident, testified
that he saw “two men run across the street, and run down to
An habeas court reviews claims that the evidence at trial the corner of Mr. Cooper’s house, and turn through the alley,
was insufficient for a conviction by asking “whether, after and jump the fence.” He described the assailants as two black
viewing the evidence in the light most favorable to the males, one 5’10 ½” tall, the other “a little shorter.” Smith did
not observe anything in the fleeing men’s hands.
10
In Ohio, the “principal offender” is the one who actually caused the
Sometime after this incident, Detective Robert Moore
death. See Byrd, No. 96-3209, slip op. at 5 n.2 (citing State v. Penix, 513 received a telephone call from Ricky Tramble, and arranged
N.E.2d 744, 746 (Ohio 1987)). to meet with him. Tramble testified that, at this meeting, he
4 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 49

informed Officer Moore that on the day Prince was killed, definition to not violate due process. We recently did the
Tramble was with Edward O’Neal, Michael Streeter, Danny same in Byrd, No. 96-3209, slip op. at 65-66. Scott provides
Jones, and Scott; they were all at O’Neal’s girlfriend’s house no reason to ignore this precedent.
“to get high.” Tramble said he overheard Scott say, “Well I
did what I had to do. She shouldn’t have made me move like E. Alleged Unconstitutionality of Ohio’s Death-Penalty
that. F__k it. It’s over with.” Tramble testified that, later Scheme Facially and As Applied
that day, Scott told Tramble, “[t]hese niggers don’t know
what they’re doing. [T]hey get to crying about this and crying Scott raised before the district court a number of reasons
about that. This is what I do.” Scott professed to Tramble why the death penalty in general and in Ohio is
that he was “a stick-up man.” Tramble related further that the unconstitutional. He focuses his argument on appeal only on
next day O’Neal informed him that Scott and O’Neal were two: that the fact that felony murder is used both as an
involved in the V&E Deli incident, including the shooting of element of the offense and a ground for capital sentencing
Prince. fails to narrow the class of persons eligible for the death
penalty, and that electrocution is cruel and unusual
On the basis of this information, the police apprehended punishment. The rest are incorporated by reference in a
and arrested Danny Jones and confiscated Jones’s automobile, footnote. The great majority of these incorporated issues, and
an older model, blue, turquoise-bottom Cadillac with a white the electrocution issue, were mentioned and rejected
top, bearing a thirty-day tag but no license plate. Jones signed summarily in Byrd. See No. 96-3209, slip op. at 66-67. We
a typewritten statement stating that he and O’Neal, Streeter, will do the same, for substantially the same reasons expressed
and Scott had been driving around looking for a place to rob. in the district court’s Order. Although Byrd also rejected the
After selecting the V&E Deli as a target, Scott requested claim that Ohio fails to narrow the class of death-eligible
“front money” in order to fabricate a purchase, and asked for convicts, it did not explicitly address Scott’s ground for this
someone to go into the store with him. O’Neal finally agreed argument. Hence, it merits brief discussion here.
to accompany Scott into the store. At this time, Jones
observed that Scott was armed with a .38-caliber pistol that The Warden has not argued that Scott’s argument on the
looked like a police revolver, and O’Neal was carrying a .25- overlap of felony murder between the underlying crime and
caliber automatic handgun. Jones pulled his car around the aggravating circumstance is procedurally defaulted, and the
corner from the V&E Deli, and O’Neal and Scott got out of district court dismissed it on the merits. Even if Scott were
the car while Jones and Streeter waited for them. Shortly right that the same act was the basis of his conviction and
thereafter, Scott and O’Neal came running through a yard and aggravating circumstance, this alone would not justify habeas
climbed over a fence. O’Neal ran to the car and got in and relief. See Lowenfield v. Phelps, 484 U.S. 231, 244-46
Scott dived into the car through a window. Jones was told to (1988). There, the Supreme Court instructed that aggravating
“pull off.” Later, Jones asked O’Neal what happened and circumstances are not ends unto themselves, but simply one
O’Neal replied “that J.D. [Scott] shot her [...] cause she went means by which a state may perform the narrowing function.
for her [gun].” When Jones asked Scott if he had killed her, See id. at 244. Lowenfield upheld the Texas death-penalty
Scott replied, “naw she was still standing up when we ran out scheme, in which the narrowing function was performed by
the door.” At trial, Jones repudiated the part of his the legislature when it circumscribed the range of offenses
typewritten statement in which he acknowledged their intent eligible for the death penalty. See id. at 245-46. “The fact
to rob the V&E Deli, contending instead that Scott and that the sentencing jury is also required to find the existence
O’Neal had gone into the store to get cold beer. of an aggravating circumstance in addition is no part of the
48 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 5

accomplice instruction that required the jury to look for The police also apprehended O’Neal, who also gave them
additional corroboration, just not in the language he proposed. a typewritten statement. O’Neal stated that he, Jones, Streeter
There is no error here, much less one justifying a writ. and Scott were driving around in Jones’s Cadillac. They
stopped in front of the V&E Deli because Scott told them he
2. Definition of Reasonable Doubt wanted to get some bologna and crackers. O’Neal followed
Scott into the store. Scott asked for bologna and crackers and,
The trial judge read Ohio’s statutory definition of when the old woman minding the store turned to obtain them,
reasonable doubt to the jury, which included the phrase Scott pulled out a pistol. Scott told the woman to “freeze”
“firmly convinced,” and added some concluding remarks that and when the woman began to “holler” and “yell,” Scott fired
essentially repeated the same language: a single shot at the woman, striking her. O’Neal related that
he was momentarily stunned by this occurrence and it was not
Now, the Legislature of Ohio has specifically until Scott grabbed him and pulled him out of the store that he
established the legal meaning of the term “reasonable began to run. They jumped the fence and ran to the car.
doubt,” and I will read that definition to you: O’Neal stated that he did not see the old woman in the store
“Reasonable doubt is present when, the jurors, after they reach for a weapon.
have carefully considered and compared all evidence,
cannot say they are firmly convinced of the truth of the At trial, O’Neal’s testimony differed somewhat from this
charge. It is a doubt based upon reason and common written statement in that he testified it was he—rather than
sense. Reasonable doubt is not mere possible doubt, Scott—who ordered the bologna and crackers in the store.
because everything relating to human affairs or O’Neal further testified that he was unarmed throughout this
dependent upon moral evidence is open to some possible ordeal and that it was Michael Streeter who had the .25-
or imaginary doubt. caliber weapon in his possession while waiting in the car.
“Proof beyond a reasonable doubt is proof of such O’Neal confirmed that he had talked with Tramble about what
character that an ordinary person would be willing to rely happened at the V&E Deli.
and act upon it in the most important of his affairs.”
All of the evidence should be examined carefully and Barbara Campbell, a trace-evidence analyst with the
conscientiously by you, and, if after a full and impartial Cuyahoga County Coroner’s Office, testified that the results
consideration of all the evidence, you are firmly of a “Walker Nitrate Test” revealed that the muzzle of the gun
convinced beyond a reasonable doubt of the truth of the which killed Prince was approximately 12 inches from her
charge or charges, then the State has proved its case and body when it was fired. Campbell further testified that a trace
you must find the defendant guilty. metal test conducted on the victim’s hands indicated that
If you are not firmly convinced of the truth of the Prince did not handle or fire a weapon prior to her death.
charge, then the State has not proved its case and you Detective David Hicks, however, testified that Prince had a
must find the defendant not guilty. fully loaded .38-caliber revolver on her person when she was
found.
Scott claims that this definition unconstitutionally conflates
the reasonable doubt standard with the less demanding “clear On May 17, 1983, the grand jury returned its indictments.
and convincing” standard. Scott was apprehended six months later in Philadelphia by
Detective James Svekric of the Cleveland Police Department.
The district court correctly relied on Thomas v. Arn, 704 During the trip back to Cleveland, Scott inquired who was
F.2d 865, 867-69 (6th Cir. 1983), which held this precise
6 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 47

using his name in connection with a homicide and robbery. defense significant enough to be cognizable on post-
Up to that point, the arresting officers had informed Scott conviction review.
only that he was wanted in connection with a homicide; they
had made no mention that Scott was also charged with Nor did the court err in refusing Scott’s accomplice
aggravated robbery. Scott maintained that he had been in instruction. In United States v. Carr, 5 F.3d 986 (6th Cir.
Reading, Pennsylvania, when the incident occurred. 1993), an appellant challenged the trial court’s refusal to give
anything more than a general instruction on judging witness
B. Procedural History credibility. In dismissing the argument, we said
Scott and his three accomplices1 were indicted by the The court's instruction adequately informed the jury
Cuyahoga County Grand Jury on two counts: (1) aggravated regarding the credibility of witness testimony, and so we
robbery in violation of Ohio Rev. Code § 2911.01, and (2) are not troubled simply because the court chose not to
aggravated murder in violation of Ohio Rev. Code § 2903.01. explicitly highlight the credibility problems inhering in
The grand jury added two specifications to the murder count: accomplice testimony. The instructions alerted the jury
(1) a death-penalty specification for violation of Ohio Rev. to the various considerations that it should take into
Code § 2929.04(A)(7),2 and (2) a firearm specification for account in weighing testimony, and it had an ample basis
violating Ohio Rev. Code § 2941.141. for rejecting the testimony of the accomplice witnesses if
it had chosen to do so. In short, because the instructions
Scott pled not guilty, proceeded to trial, and was convicted. given by the court substantially covered the same
The trial court then held a sentencing hearing as prescribed by material as the instruction requested by the defendant,
Ohio Rev. Code §§ 2929.022(A) and 2929.03, and the jury there was no reversible error.
recommended the death penalty. The trial judge adopted the
recommendation and sentenced Scott to death for his murder Id. at 992. We have since followed Carr in not requiring
conviction. Scott was also sentenced to 7-25 years of accomplice instructions as a general matter, a rule that is
imprisonment for his aggravated robbery conviction and 3 significantly less favorable to defendants than the approaches
years of imprisonment for the firearm specification. of some of our sister circuits. See, e.g., United States v. Hill,
627 F.2d 1052 (10th Cir.1980) (finding reversible plain error
when no accomplice instruction was given and no other
1 evidence corroborated the accomplice testimony); United
O’Neal, Jones, and Streeter each pled guilty to robbery offenses and States v. Davis, 439 F.2d 1105 (9th Cir.1971) (same); Tillery
received shock probation and/or suspended sentences. v. United States, 411 F.2d 644 (5th Cir.1969) (same); United
2 States v. McCabe, 720 F.2d 951, 956 (7th Cir. 1983) (holding
This section provides a death-penalty-qualifying specification if lack of accomplice instruction to be error when corroborating
The offense was committed while the offender was committing, evidence was insufficient “to overcome the inherent
attempting to commit, or fleeing immediately after committing unreliability of accomplice testimony”); United States v. Lee,
or attempting to commit kidnapping, rape, aggravated arson, 506 F.2d 111, 120 (D.C. Cir.1974) (holding failure to give
aggravated robbery, or aggravated burglary, and either the instruction harmless because accomplice's testimony was
offender was the principal offender in the commission of the "materially corroborated"); United States v. Williams, 463
aggravated murder or, if not the principal offender, committed
the aggravated murder with prior calculation and design. F.2d 393, 396 (10th Cir.1972) ("considerable evidence"
corroborated the accomplice's testimony). Scott received an
Ohio Rev. Code § 2929.04(A)(7) (1996).
46 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 7

an abnormal fear of imprisonment since he was already Scott timely appealed his convictions and death sentence.
incarcerated at the time. The Ohio Supreme Court also relied Both were affirmed by the Ohio Court of Appeals and the
on Howard in rejecting Scott’s appeal. See State v. Scott, 497 Ohio Supreme Court. The United States Supreme Court
N.E.2d 55, 63 (Ohio 1986). We have never directly followed denied Scott a writ of certiorari, though Justices Marshall and
or contradicted Howard, although we have acted consistently Brennan filed a dissenting opinion. See Scott v. Ohio, 480
with it by dismissing a claim of error for failure to produce U.S. 923, 923 (1987).
any evidence that the witnesses were addicted at trial. See
United States v. Freeman, Nos. 91-1011, 91-1012, 1991 WL Scott then secured a stay of execution and petitioned the
203088, at **3 (6th Cir. Oct. 4, 1991) (unpublished). Instead, Cuyahoga County Common Pleas Court for post-conviction
in an unpublished opinion, when an appellant challenged the relief pursuant to Ohio Rev. Code § 2953.21. The Warden
refusal to give a similar instruction for a witness who was an successfully moved to dismiss, but the Ohio Court of Appeals
addict-informer but not addicted at trial, we relied on our reversed the dismissal in part and remanded for a hearing on
authority governing addict-informer instructions. See United the issue of whether Scott was denied effective assistance of
States v. Anderson, Nos. 97-5352, 97-5382, 1998 WL counsel at the mitigation phase of the sentencing hearing.
833701, at **4 (6th Cir. Nov. 20, 1998). "This court has long Both parties unsuccessfully appealed this ruling to the Ohio
recognized the importance of an addict-informant instruction Supreme Court, and the case was returned to the common
in appropriate cases." United States v. Brown, 946 F.2d 1191, pleas court for the hearing. At the conclusion of the hearing,
1195 (6th Cir.1991). However, there is no per se rule at which Scott’s family members and trial counsel testified,
requiring such instructions to be given in all cases involving the trial court issued findings of fact and conclusions of law
addict testimony; instead, "the need for such an instruction to the effect that Scott had not been denied effective
depends on the circumstances of each case." Id. (internal assistance in the mitigation phase of his sentencing.
quotation omitted). The district court errs by failing to give Specifically, the court found that trial counsel’s testimony
a requested instruction only when the requested instruction is was more credible than that of Scott’s family members, that
correct, not substantially covered by the actual jury charge, Scott and his family were primarily to blame for their failure
and when not giving the instruction would substantially to provide mitigating evidence, and that the “residual doubt”
impair defendant's defense. See United States v. Sassak, 881 strategy pursued in the mitigation hearing was in Scott’s best
F.2d 276, 279 (6th Cir.1989). interest. Scott unsuccessfully appealed, and was denied a writ
of certiorari on the ineffective assistance of counsel issue by
We agree with the district court, and adopt the reasoning of the United States Supreme Court.
Howard. It is certainly consistent with our handful of
unpublished decisions on the issue, none of which has been In addition to these post-conviction proceedings, Scott also
receptive to requiring the addict instruction, and it is sensible; pursued post-conviction relief pursuant to State v. Murnahan,
there is no reason to believe that Tramble’s former drug use 584 N.E.2d 1204, 1209 (Ohio 1992), which allows appellants
impaired his testimony at trial. But Scott’s argument is claiming denial of effective assistance of appellate counsel to
lacking even under our prior case law. The requested seek relief by applying for delayed reconsideration in the
instruction is correct, as it is remarkably similar to the Sixth Court of Appeals, or by filing a delayed appeal directly with
Circuit pattern instruction for addict-informers. But the trial the Ohio Supreme Court. Scott first filed a motion to reopen
court’s instruction to consider the witnesses’ motives should his appeal in the Ohio Court of Appeals, which was denied.
have been sufficient, and there was no impairment to Scott’s The Ohio Supreme Court affirmed, denied rehearing, and the
United States Supreme Court denied certiorari. Scott also
8 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 45

filed a delayed direct appeal with the Ohio Supreme Court, substantial and injurious effect or influence on the verdict,
which was refused. and are subject to harmless-error analysis.9 See Gilliam v.
Mitchell, 179 F.3d 990, 994-95 (6th Cir. 1999) (citing Brecht
The Ohio Supreme Court, on the Warden’s motion, set v. Abrahamson, 507 U.S. 619, 638 (1993)).
October 25, 1995, as the date for Scott’s execution. On
September 20, 1995, Scott filed a notice of intent to file a Also as with the challenge to the unanimity instruction, the
habeas petition with the federal district court. The district State claims that both of these claims are defaulted because
court granted an indefinite stay of execution while Scott they were not objected to contemporaneously. Scott has made
pursued his federal habeas relief, and appointed Scott’s no response. The district court reached the merits of the first
current counsel. instruction challenged here, relating to witness credibility,
without discussing its potential default. Regardless of
Scott’s petition presented twenty-one grounds for relief, whether this claim was defaulted, it is easily disposed of on
divided into three categories: (1) constitutional violations the merits. The court also correctly held the second ground,
tainting the entire course of the state court proceedings regarding the definition of reasonable doubt, not to be waived,
(Grounds 1-6); (2) constitutional violations prejudicing Scott because the Ohio Supreme Court itself said so in a later
during specific stages of the proceedings (Grounds 7-19); and opinion that discussed Scott’s case. See State v. Van Gundy,
(3) constitutional violations relating generally to the Ohio 594 N.E.2d 604, 607 (Ohio 1992).
death-penalty scheme (Grounds 20-21). Scott requested leave
to conduct discovery and an evidentiary hearing, but both 1. Instruction on Credibility of Addicts and Accomplices
were denied for failure to show good cause. The court also
made clear that because Scott filed his petition before the Tramble admitted being an addict when he gave his
effective date of the Anti-Terrorism and Effective Death information to the police, and Jones and O’Neal also testified
Penalty Act of 1996 (AEDPA), it would not apply the against Scott as accomplices. Scott proposed specific
demanding standards of review mandated by that statute. instructions on the particular unreliability of accomplices, and
that the testimony of drug addicts should be “considered with
The court heard lengthy oral arguments from both parties great care” because of their constant need of drug money and
and received post-hearing briefs on certain issues. On abnormal fear of imprisonment. Instead, the court gave
September 30, 1998, the court issued its opinion denying general instructions on the jury’s duty to determine witness
habeas relief on all grounds except one: Ground 18, which motivation and credibility, and instructed that accomplice
challenged the trial court’s penalty-phase jury instruction3 testimony must be corroborated “by other credible, believable
regarding unanimity of the sentencing recommendation. evidence.”
Scott was granted a certificate of appealability to cross-appeal
the denial of the remaining grounds, and both sides filed The district court, relying on United States v. Howard, 590
timely notices of appeal. F.2d 564, 570 (4th Cir. 1979), found no error in rejecting the
addict instruction because there was no evidence that Tramble
was still addicted at the time of trial, and could not have had

3
In its Order, the district court felt “compelled to mention” that 9
Cleveland attorneys Timothy F. Sweeney and John S. Pyle, serving Scott cites an Eighth Circuit case for the proposition that Brecht’s
pursuant to the Criminal Justice Act, have done an exceptional job harmless-error test does not apply if the state courts did not conduct a
defending Scott. They have also performed commendably on appeal. Chapman harmless error test, but Gilliam squarely rejects this contention.
44 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 9

appropriate case could be . . . the result of a tactical, informed Before this court, Scott defends the district court’s
decision by counsel, completely consonant with his duties to reasoning that the unanimity instruction could have had the
represent the accused effectively”). Without effective impermissible effect of causing one or more jurors to believe
research into the available mitigating testimony, of course, it that unanimity was required not only as to the net weight of
would be impossible for the lawyers to have made an the mitigating factors versus the aggravating factors, but also
informed decision either way, even if residual doubt was a as to the existence of each mitigating factor. The Warden, on
viable option in retrospect. If we were to hold Scott’s lawyers the other hand, maintains that Scott’s challenge to this
to be ineffective, then, it would have to be on the grounds of instruction is procedurally barred from habeas review for
their failure to research mitigating evidence, not their failure failure to lodge a contemporaneous objection to the
to present it. Otherwise, there would be merit to the district instruction in the trial court, and that, in any case, the
court’s concern in this case that to condone the lawyers’ instruction had no such effect on the finding of mitigating
performance would be to create a post-hoc exception for factors. Scott’s cross-appeal further argues that (1) two other
faulty lawyering. Regardless, the Constitution guarantees penalty-phase instructions, namely those telling the jury to
competent counsel and a fair trial, not perfection. In light of ignore considerations of mercy in reaching its decision and
the finding of the state common pleas court’s evidentiary advising that its recommendation of death would not be
hearing that the lawyers’ testimony is more credible than that binding on the court, were unconstitutional; (2) Scott was
of Scott’s family, and that Scott’s criminal history would have prejudiced by comments made by the trial judge to the jury
been known to the attorneys even without further research, we venire regarding media coverage of Prince’s shooting and
believe that the decision of Scott’s attorneys to pursue a Scott’s involvement in it; (3) Scott’s trial counsel were
residual-doubt strategy in this case was not objectively ineffective in the penalty phase for failing to interview or
unreasonable, because it was adequately (if not ideally) present witnesses in mitigation and instead pursuing a
informed and was quite arguably the best course of action residual doubt strategy; (4) the cumulative effect of two
available. allegedly erroneous jury instructions violated Scott’s due
process rights; and (5) Ohio’s death penalty is
D. Cumulative Error From Two Allegedly Erroneous unconstitutional on its face and as applied to Scott for a
Guilt-Phase Jury Instructions variety of reasons. We will address each of these issues in
turn.
As noted above, to warrant habeas relief, jury instructions
must not only have been erroneous, but also, taken as a whole, II. ANALYSIS
so infirm that they rendered the entire trial fundamentally
unfair. See Coe, 161 F.3d at 329. This burden is even greater When reviewing a district court’s disposition of a petition
than that required to demonstrate plain error on direct appeal. for a writ of habeas corpus filed before AEDPA’s effective
See Frady, 456 U.S. at 166; Henderson, 431 U.S. at 154 date, we presume primary, or historical, factual findings by
(“The question in such a collateral proceeding is whether the the state courts to be correct, rebuttable only by clear and
ailing instruction by itself so infected the entire trial that the convincing evidence under one of the eight conditions listed
resulting conviction violates due process, not merely whether in the pre-AEDPA version of 28 U.S.C. § 2254(d)(1-8). See
the instruction by itself is undesirable, erroneous, or even Byrd v. Collins, No. 96-3209, slip op. at 35 (6th Cir. Apr. 6,
universally condemned” (citations and internal quotations 2000) (citing McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th
omitted)). Allegations of “trial error” raised in challenges to Cir. 1996)). We review de novo determinations involving
jury instructions are reviewed for whether they had a matters of law or mixed questions of law and fact. See Mapes
10 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 43

v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999). We afford It was their responsibility to present Scott’s defense, not
“complete deference to evidence-supported state court Scott’s family’s or even Scott’s. In Glenn v. Tate, 71 F.3d
findings of fact. [...] But the more substantive standard by 1204, 1207-08 (6th Cir. 1995), we held lawyers’ conduct to
which our de novo review is conducted is the determination be objectively unreasonable when they waited until after the
whether the trial errors asserted by the petitioner resulted in verdict to prepare for the sentencing phase, failed to interview
a trial so devoid of fairness as to have amounted to a denial of any family members or friends, and conducted no research at
the due process guaranteed by the fourteenth amendment.” all into mitigation except to prepare one inadmissible
Lundy v. Campbell, 888 F.2d 467, 469 (6th Cir. 1989) (citing videotape. We followed Glenn in Austin v. Bell, 126 F.3d
Sumner v. Mata, 455 U.S. 591 (1982) (per curiam)). 843, 848-49 (6th Cir. 1997), to find a lawyer ineffective when
he failed to investigate or present any mitigating evidence
A. The Trial Court’s Penalty-Phase Jury Instructions despite the availability and willingness of several relatives
and friends. We characterized counsel’s performance there as
Because the state claimed that nearly half of Scott’s claims, not a “strategic decision, but rather an abdication of
including his challenges to the penalty-phase jury instructions, advocacy.” Id. at 849; see also Byrd, No. 96-3209, slip op. at
had been procedurally defaulted, the district court began its 63 (following Austin and Glenn)); O’Guinn v. Dutton, 88
legal analysis with a discussion of the law of procedural F.3d 1409, 1424 (en banc) (Merritt, C.J., concurring) (finding
default, including a discussion of Wainwright v. Sykes, 433 attorneys’ near-complete failure to investigate or present
U.S. 72 (1977), Coleman v. Thompson, 501 U.S. 722 (1991), mitigating evidence, because each attorney thought the other
and Maupin v. Smith, 785 F.2d 135 (6th Cir.1986), this was preparing it, to go beyond ineffectiveness into total
circuit’s seminal case applying the law of procedural default incompetence). In Mapes, we remanded for a hearing on the
in federal habeas cases in which the state argues that an effectiveness of appellate counsel, in part because he failed to
habeas claim is barred by the petitioner’s failure to observe a raise the fact that the sentencing phase counsel conducted no
state procedural rule. Maupin laid out a 4-part test that, as the4 research into mitigating factors.
district court correctly noted, we have consistently applied
since its issuance: Scott’s penalty-phase attorneys would certainly have been
well-advised to conduct more research into mitigating factors
When a state argues that a habeas claim is precluded by than they did. Unlike in Austin and O’Guinn, however, these
the petitioner’s failure to observe a state procedural rule, lawyers had a credible reason for not presenting testimony:
a desire to keep Scott’s extensive criminal history from the
jury. See also Byrd, No. 96-3209, slip op. at 63-64 (same).
4 The state trial and appeals courts found this strategy to be in
The Maupin test is essentially a group of enumerated factors that is Scott’s best interest, given his claim of actual innocence
identical to the approach subsequently endorsed by Coleman: that the
cause and prejudice/actual innocence test is to be applied in all federal throughout trial and sentencing and the magnitude of his
habeas cases where the state court decision is based on an independent criminal past. Moreover, both the Ohio and United States
and adequate state ground. See Coleman, 501 U.S. at 750. Although we Supreme Courts have endorsed a residual doubt strategy when
have remained faithful to the analysis endorsed by Maupin, our more warranted by the circumstances. See Lockhart v. McCree,
recent decisions have not always employed a “Maupin test” per se. See, 476 U.S. 162, 181 (1986) (recognizing the strategy as “an
e.g., Byrd, No. 96-3209, slip. op. at 53-54 (articulating the factors from
Maupin and related cases differently but analogously); Jones v. Toombs, extremely effective argument for defendants in capital cases”
125 F.3d 945, 946 (6th Cir. 1997) (applying the Coleman formulation (citation omitted)); State v. Johnson, 494 N.E.2d 1061, 1065
without mentioning Maupin, although reaching the same result). In this (Ohio 1986) (“omission of [mitigating] evidence in an
case, however, we find it useful to follow Maupin’s enumerated factors.
42 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 11

could not come close to rebutting with clear and convincing the federal court must go through a complicated analysis.
evidence. Moreover, while acknowledging the questionable First, the court must determine that there is a state
amount of research done by counsel, the court decided that procedural rule that is applicable to the petitioner’s claim
the second Strickland prong could not be met because Scott and that the petitioner failed to comply with the rule. [...]
could not show a “reasonable probability” that the sentence Second, the court must decide whether the state courts
would have been different otherwise. Strickland, 466 U.S. at actually enforced the state procedural sanction. [...]
694. The court ended its discussion, however, with a Third, the court must decide whether the state procedural
footnote, noting that this too was a close call since one juror forfeiture is an “adequate and independent” state ground
might always have been persuaded, and that the question was on which the state can rely to foreclose review of a
ultimately mooted by the court’s grant of the writ on another federal constitutional claim. [...] This question generally
ground. will involve an examination of the legitimate state
interests behind the procedural rule in light of the federal
The district court was correct to focus on the second interest in considering federal claims. [Fourth], the
Strickland prong. It is clear that, in its words, the “mitigating petitioner must demonstrate under Sykes that there was
circumstances Scott wishes his counsel had presented . . . are “cause” for him to not follow the procedural rule and that
largely, even overwhelmingly, negated by evidence that his he was actually prejudiced by the alleged constitutional
background includes commission of robbery, assault, error.
kidnaping, and other violent acts upon innocent citizens,” and
that prosecutors would have elicited such information from Id. at 138 (citations omitted). For purposes of the procedural-
any family members who testified for Scott. The mitigating default analysis, the district court grouped Scott’s eighteenth
evidence would have revealed Scott’s personal loyalty to his ground for relief—the claim that the penalty-phase jury
siblings, girlfriend, and children, and an exceedingly violent instruction on unanimity is unconstitutional—with his
environment throughout his upbringing. As the district court challenges to two other penalty-phase jury instructions—that
said, it is impossible to say for certain that one juror would the jury’s recommendation of death was not binding on the
not have been swayed by this evidence, but certainty is not trial court (Ground 14) and that the jury was to disregard
required here; we must ask only whether Scott has met his emotions of mercy or sympathy (Ground 16)—because no
burden of demonstrating a reasonable probability that this contemporaneous objection to any of the three instructions
would happen. None of the proffered mitigating evidence had been raised. The district court noted that Scott had raised
reduces Scott’s culpability for the Prince murder or the string these three arguments for the first time on direct appeal. The
of violence that preceded it. Scott can only offer a Ohio Court of Appeals noted the default and plain error
hypothetical juror, not a reasonable probability, and hence standard of review, but went on to address the merits of the
cannot show prejudice. claims. See Scott, 1985 WL 9047 at *8. The Ohio Supreme
Court more explicitly relied on the procedural default, but
As to the first Strickland prong, were we to reach it, it is not nonetheless allowed for the possibility that Scott could prove
clear that the lawyers’ performances fell below the objective plain error. The Ohio Supreme Court conducted a lengthy
standard. The state court fact findings that we are bound by review of the record for plain error as to Ground 14, and a
indicate that neither Scott nor any proposed witness made any shorter review as to Ground 16. As to the unanimity
attempt to assist the attorneys in finding mitigating evidence, instruction claim, however, the Ohio Supreme Court said only
and that this made the job more difficult. This difficulty, of this:
course, does not excuse a lack of attempt on the lawyers’ part.
12 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 41

Appellant next argues that the requirement of The district court found all but one of the several grounds
unanimity in recommending a life sentence denies a for ineffectiveness of his trial counsel that Scott raised before
capital defendant his right to a fair trial and freedom from it to be procedurally barred, and Scott does not pursue those
cruel and unusual punishment. defaulted allegations on appeal. The sole remaining argument
Again, appellant neglected to object to the trial court’s is that Scott’s sentencing-phase counsel were ineffective
instruction in this regard and has accordingly waived any because they failed to research possible mitigating factors,
objections with regard to this alleged error. State v. and also failed to interview Scott’s several family members
Fanning, supra. More importantly, in State v. Jenkins, who often attended the trial. Scott’s attorneys did not present
[...], this court ruled that a jury’s recommendation of a any mitigating evidence other than Scott’s own unsworn
life sentence under R.C. 2929.03(D)(2) must be statement to the jury.8 They pursued a “residual doubt”
unanimous. strategy, in which the defendant appeals to the jury’s lingering
doubt regarding the conviction in an attempt to dissuade them
State v. Scott, 497 N.E.2d 55, 69 (Ohio 1986). from imposing the death penalty. The state trial court held a
post-conviction evidentiary hearing on this issue, and
The district court concluded that none of these three claims determined that: (1) trial counsel’s testimony was more
had been procedurally defaulted. The court first noted that in reliable than that of the family members; (2) the intransigence
examining Scott’s fourteenth and sixteenth grounds and of Scott and his family was responsible for his counsel’s
“arguably in examining Scott’s eighteenth ground, as well,” failure to identify and obtain mitigating evidence from the
the Ohio Supreme Court had not simply relied on Ohio’s family members; (3) the family members made no attempt to
contemporaneous-objection rule, but had conducted a plain- offer assistance until after Scott’s conviction; and (4) had
error analysis; hence, the Ohio Supreme Court “did not Scott chosen to have a pre-sentence investigation report
wholly overlook Scott’s procedural default.” Relying on an prepared or had the family members testified, the jury would
unpublished decision of this circuit, Knuckles v. Rogers, No. have learned of Scott’s extensive criminal history. The court
92-3208, 1993 WL 11874 (6th Cir. Jan 21, 1993) (per also made two other mixed findings of law and fact, namely
curiam), the district court further concluded that in any event, that the family’s testimony was unreliable and unhelpful and
Ohio’s contemporaneous-objection rule is not an adequate that Scott’s lawyers acted in his best interest. The district
and independent state ground on which the state could rely to court appropriately acknowledged its deference to the
foreclose review of these claims because that rule is not hearing’s findings on the primary, historical facts, which Scott
independent of federal law.
1. The Trial Court’s Penalty-Phase Instruction on Jury 8
Unanimity Scott had the right under Ohio law to testify under oath or make an
unsworn statement to the jury, and he chose the latter. Scott used this
opportunity to continue to deny his guilt (“I feel insulted, and that’s what
With regard to Scott’s challenge to the penalty-phase I wanted to reflect to you. Insult when you charged me.”), and explicitly
unanimity instruction—the only ground on which the district told the jury that he was not going to tell them any reasons that they
court granted the writ—we hold that the district court erred. should show him mercy since he was not guilty and that was all they
It is undisputed here that the first Maupin prong has been needed to know (“I don’t have to sit here and say ‘Give me mercy.’ What
established; Scott does not question the applicability of I mean, I don’t want no mercy . . . I don’t care what they say out of they
Ohio’s contemporaneous-objection rule and he does not claim [sic] mouths, and I’m telling you, it is me now talking for me . . . . I
didn’t care that you found me guilty, but it was up to you. I felt you
to have made such an objection. Scott does not address in couldn’t because the truth has got to rise, but . . . you did, and it don’t
this appeal the fourth Maupin prong, the cause and prejudice scare me when they say you are going to give me the death penalty.”).
40 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 13

unless there is an “overwhelming probability” that they were test, although the district court did address that issue. Rather,
ignored. Richardson v. Marsh, 481 U.S. 200, 208 (1987). Scott focuses on the second and third Maupin prongs, arguing
that the Ohio courts did not actually enforce the state
Scott’s scenario of jury bias is not nearly tenable enough to contemporaneous-objection rule and that the rule is neither an
overcome these presumptions. Scott and Justice Marshall adequate nor an independent state ground.
cited Quercia v. United States, 289 U.S. 466 (1933), for the
proposition that the judge’s comments warped the jury’s (a). The Second Maupin Prong – Application of the Rule
perception beyond all hope of repair. The extremity of that
case’s facts, however, provide a perfect foil to demonstrate The determination of whether a state court decision was
the mildness of the instant case. In Quercia, the trial judge based on a state procedural rule is a legal question that we
instructed the jury that he believed every word the defendant review de novo. See Couch v. Jabe, 951 F.2d 94, 96 (6th Cir.
said to be a lie because the defendant had wiped his hands 1991) (per curiam). Scott argued to the district court that by
while on the stand. See id. at 468-69. Here, we have only conducting a plain-error review, the Ohio Supreme Court had
Scott’s inference that the court’s facially innocuous statement excused the procedural default and hence had not enforced the
may have been understood as a “frank, unguarded admission” state procedural sanction. The district court did not entirely
of the judge’s opinion, which would then have a prejudicial agree: “It is questionable whether the Ohio Supreme Court
effect on a juror’s verdict. All we know for certain is that the truly overlooked Scott’s procedural defaults and examined the
court communicated the existence of pretrial publicity, which merits of Scott’s three grounds regarding jury instructions.
Patton held not to be an indelible influence on a juror’s mind. [...] A plain error analysis is not tantamount to a review on
See also United States v. Peters, 754 F.2d 753, 762-63 (7th the merits, so the Ohio Supreme Court did not wholly
Cir. 1985) (recounting several studies demonstrating capital overlook Scott’s procedural default.”
jurors’ ability to put media reports out of their minds and vote
exclusively on the evidence). This alone does not destroy On appeal, Scott cites the Supreme Court’s holding in
fundamental fairness. Harris v. Reed, 489 U.S. 255, 257 (1989), that federal habeas
courts are to apply the “plain statement rule” of Michigan v.
C. Ineffective Assistance of Trial Counsel During the Long to determine whether a state court decision was based
Penalty Phase on a state law ground, and that any ambiguity as to whether
the holding was based on or intertwined with federal law
We apply to this claim the same de novo standard listed requires the application of the Long rule. Scott urges us to
above. For Scott’s counsel to have deprived him of his Sixth find that the Ohio Supreme Court decided his challenge to the
Amendment right to effective assistance, the counsel’s jury unanimity instruction on its merits, not on the basis of the
performance must have “so undermined the proper procedural bar, citing as evidence the fact that in its three-
functioning of the adversarial process that the trial cannot be sentence disposition of this claim, the Ohio Supreme Court
relied on as having produced a just result.” Strickland v. began the last sentence with the words “More importantly.”
Washington, 466 U.S. 668, 686 (1984). It is Scott’s burden
to show his attorneys’ performance fell below an objective Scott’s argument is meritless. The issued addressed in
standard of reasonableness and that Scott was thereby Harris, as we explain below in relation to the third Maupin
prejudiced. See id. at 687-88. Counsel’s performance is factor, is whether the state court decision actually relies on a
strongly presumed to be effective. See id. at 690; Kimmelman state procedural ground that is both adequate and independent
v. Morrison, 477 U.S. 365, 381 (1986). from federal law; Harris does not preclude a finding that the
state procedural rule was actually enforced where the state
14 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 39

court decision also relies on an alternative ground. Scott’s in response to evidence presented at trial. In this context, we
only arguable basis for asserting that the Ohio Supreme Court have said
did not enforce the contemporaneous-objection rule is its
“More importantly” sentence. The district court viewed this It is the duty of the trial judge to conduct an orderly trial
sentence as only “arguably”amounting to a plain error review, with the goal of eliciting the truth and attaining justice
and did not accept Scott’s argument that this was the primary between the parties. In charging the jury, the trial judge
holding. We conclude that the Ohio Supreme Court’s is not limited to instructions of an abstract sort. It is
adversion to Ohio’s substantive law regarding jury unanimity within his province, whenever he thinks it necessary, to
with regard to the recommendation of a life sentence was not assist the jury in arriving at a just conclusion by
even arguably a plain error review, but was simply a explaining and commenting upon the evidence, by
supplement to its holding that Scott had waived any objection drawing their attention to the parts of it which he thinks
to the jury instruction by failing to object at the time the important; and he may express his opinion upon the
instruction was given. facts, provided he makes it clear to the jury that all
matters of fact are submitted to their determination. The
(b). The Third Maupin Prong – Adequate and district judge may not assume the role of a witness. He
Independent State Ground or she may, however, analyze and dissect the evidence,
as long as the district judge does not distort or add to it.
Scott claims not only that the Ohio Supreme Court did not When commenting on the evidence, the trial judge must
enforce the contemporaneous-objection rule and hold his take great care to avoid undue prejudice of the jury.
challenge to the unanimity instruction barred; he claims that
because the contemporaneous-objection rule does not United States v. Blakeney, 942 F.2d 1001, 1013 (6th Cir.
preclude the state appellate courts from performing a plain- 1991) (citations, quotations and alterations omitted). Hence,
error review, the rule itself is dependent on federal law and is the judge did not exceed his authority merely by pointing out
therefore not an “independent and adequate state ground” the existence of the article and discussing its contents as a
under Maupin. Here the district court agreed. For support, it basis to judge juror impartiality.
turned to our unpublished decision in Knuckles v. Rogers, No.
92-3208, 1993 WL 11874, at **2-3 (6th Cir. Jan. 21, 1993) Allegations of jury bias must be viewed with skepticism
(per curiam): when the challenged influence occurred before the jurors took
their oath to be impartial. Holding that pretrial publicity did
[I]t is clear that Ohio has a contemporaneous objection not bias a juror in Patton v. Yount, 467 U.S. 1025, 1036
rule, and that the Ohio courts treat the failure to object to (1984), the Court said that the partiality of a juror “is plainly
a claimed error as a procedural default. Ohio R. Crim. P. a question of historical fact: did a juror swear that he could set
52; State v. Williams, 304 N.E.2d 1364 (Ohio 1977). aside any opinion he might hold and decide the case on the
Since Knuckles failed to object contemporaneously to the evidence, and should the juror's protestation of impartiality
allegedly improper remarks, he violated Ohio's have been believed.” Accordingly, the Court held that such
contemporaneous objection rule and committed a a determination by a state court was entitled to a presumption
procedural default. However, the procedural default did of correctness on habeas review under 28 U.S.C. § 2254(d).
not foreclose all consideration by the Ohio appellate This is especially so in light of the two curative instructions
court; the Ohio court examined the record to determine the court gave, which we must presume to have been effective
if the allegedly improper remarks were "plain error."
38 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 15

B. The Trial Judge’s Comments to the Jury Venire The basic inquiry in the plain error analysis in Ohio is
whether the defendant has been denied a "fair trial."
We examine this claim de novo, with deference to facts Whether a person is denied a fair trial is a question to be
found in state court, for denial of fundamental fairness. It is resolved by applying principles of federal constitutional
not procedurally barred. law. Therefore, we conclude that the Ohio appellate
court's decision was not independent of federal law.
Scott challenges a remark made by the trial judge which he
claims communicated to the jury the court’s belief that Scott (footnote omitted). The district court concluded that “[g]iven
participated in the crime. During voir dire, the judge the reasoning in Knuckles, this court must conclude that
explained to the jury that the court knew there was notoriety Ohio’s application of its contemporaneous objection rule in
surrounding the case because he had seen a newspaper article this case was not independent of federal law.” For the reasons
on it. The judge mentioned some details of the crime, then that follow, we hold that the district court erred in holding
continued, “Not only was Mr. Scott – at least from the that the Ohio Supreme Court’s dismissal of this claim does
newspaper reports that I think I had read – was involved in not rest on an adequate and independent state ground.
this, there were three other--. . . .” At that point, the defense
objected, and received a sidebar. The Court gave a curative In the recent published opinion in Coe v. Bell, 161 F.3d 320
instruction explaining the court’s lack of knowledge on the (6th Cir. 1998), this circuit addressed the issue of whether a
case beyond the article. Scott moved for a mistrial, which the federal habeas court is required to disregard a state court’s
prosecution reluctantly joined. Denying the motion, the Court finding of procedural bar because the state court also issued
gave another instruction reiterating its neutrality and the an alternative holding. We explained in Coe that, in contrast
jury’s duty to decide based solely on the evidence. to the state court’s statements in Harris that the state had a
“well-settled” principle of law that issues which could have
Dissenting from Scott’s denial of certiorari, Justices been raised on direct appeal but were not are considered
Marshall and Brennan lambasted the Ohio courts for waived, and that petitioner’s claim “could have been raised in
upholding such an “extraordinary error” that “overwhelmed [his] direct appeal,” id. at 330 (quoting Harris, 489 U.S. at
the presumption of innocence.” Scott v. Ohio, 480 U.S. at 258 (alteration in original)), the state court in Coe “took
925. They also pointed out that empaneling another jury things one step further, . . . and explicitly and clearly said that
would have been easy at the voir dire stage. For this reason Coe had no cognizable claim. There was, therefore, a
and because the prosecutor joined the mistrial motion, the sufficiently clear and express statement here.” Id. at 330-31.
district court found this issue a “close call.” Nonetheless, the It is Coe that governs our analysis here.
court found no fundamental unfairness. It viewed the
comments as reporting to the jury the media’s conclusion, and Knuckles, on the other hand, is an unpublished opinion, and
the fact that even the judge had seen the coverage, in an therefore is not binding upon subsequent panels of the court.
attempt to determine the jury’s ability to be impartial. It See 6 Cir. R. 206 (1998). And, in any event, in Knuckles we
concluded by noting that the verdict would likely have been did not hold that Ohio’s contemporaneous-objection rule or
upheld under Supreme Court precedent even if the jury the Ohio court’s application of that rule was not independent
themselves had read the article. of federal law; rather, we held that in that case the Ohio
court’s decision that there was no plain error was not
We find no error in the district court’s conclusion. The independent of federal law.
threat of prejudicial comments from the court usually arises
16 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 37

Here, the district court itself acknowledged that its duty, your efforts must be to arrive at a just verdict.
“adequate and independent state ground” analysis was “more Consider all the evidence and make your finding with
tenuous” with regard to the unanimity instruction than the intelligence and impartiality, without bias, sympathy or
other two claims, because “the Ohio Supreme Court did not prejudice, so that the State of Ohio and the defendant will
clearly apply a plain error analysis to Scott’s eighteenth feel that their case was fairly and impartially tried.
ground . . .”5 As we have indicated, however, the concluding
sentence in the relevant Ohio Supreme Court passage simply We rejected a challenge to the substance of this instruction in
did not amount to any type of review, much less one Mapes as well:
dependent on or intertwined with federal law.
Third, an instruction to a death-sentence jury that it may
More importantly—and we use that term advisedly—Harris disregard the statutory criteria for imposing a death
specifically instructed state courts that they sentence may be constitutionally impermissible in light
of the probability that such an instruction would result in
need not fear reaching the merits of a federal claim in an arbitrary and unpredictable results. See California v.
alternative holding. By its very definition, the adequate Brown, 479 U.S. 538, 541, 107 S.Ct. 837, 93 L.Ed.2d
and independent state ground doctrine requires the 934 (1987). According to the Court, "sentencers may not
federal court to honor a state holding that is a sufficient be given unbridled discretion in determining the fates of
basis for the state court's judgment, even when the state those charged with capital offenses." Id. Thus, an
court also relies on federal law. Thus, by applying this instruction that the jury should not be swayed by "mere
doctrine to habeas cases, Sykes curtails reconsideration of sentiment, conjecture, sympathy, passion, prejudice,
the federal issue on federal habeas as long as the state public opinion or public feeling" was not only
court explicitly invokes a state procedural bar rule as a unobjectionable in Brown, it "serve[d] the useful purpose
separate basis for decision. In this way, a state court may of confining the jury's imposition of the death sentence
reach a federal question without sacrificing its interests by cautioning it against reliance on [irrelevant,]
in finality, federalism, and comity. extraneous emotional factors." Id. at 542, 543, 107 S.Ct.
837. Thus, there is no merit whatsoever to Mapes's
Harris, 489 U.S. at 264 n. 10 (citations omitted). Further, the claimed entitlement to a "merciful discretion" instruction,
Supreme Court instructed in Coleman that “[a] predicate to in light of the likely tendency of such an instruction to
the application of the Harris presumption is that the decision lead to arbitrary differences in whom is selected to be
of the last state court to which the petitioner presented his sentenced to death.
federal claims must fairly appear to rest primarily on federal
law or to be interwoven with federal law.” Coleman, 501 171 F.3d at 415-16 (emphasis omitted, alterations in original).
U.S. at 735. As Coleman makes very clear, to apply Harris The district court also correctly relied on Brown, reasoning
any more broadly would eviscerate the very foundations of that the instruction followed that decision by warning against
the adequate and independent state ground doctrine, which are all emotional responses, both in favor of and against Scott.
There was no error as to this instruction either.

5
The court alleviated this concern by finding that the Warden also
failed the fourth Maupin prong, the cause and prejudice test. That
conclusion was also erroneous, as we will address below.
36 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 17

1982), any error was waived. As was the case in Coe, the federalism, finality and comity. See id. at 730-32, 738-39,
state court’s statement could have been clearer and more 749.
express, but the test is not whether the state court could have
said it better. It is enough that the court specifically held that The state court decision in the case before us here relied
the claims were waived; the court’s alternative holding that more obviously on adequate and independent state procedural
there was no plain error “does not require us to disregard the grounds than did the state court decision in Coleman itself.
state court’s finding of procedural bar.” Coe, 161 F.3d at 330. There, the Virginia Supreme Court granted the state’s motion
that requested summary dismissal purely on state procedural
We further conclude, however, that the district court grounds, although the court’s use of the phrase “[u]pon
correctly determined that neither of these claims had merit. consideration whereof [referring to the parties’ briefs]”
The trial judge instructed the jury that its recommendation of suggested that the court may have considered the merits of the
death would be “just that – a recommendation,” while a filings as well. Coleman, 501 U.S. at 728. The Supreme
recommendation of life imprisonment “is binding upon the Court refused to read this ambiguity as “overriding the court’s
Court, and I, the Judge, must impose the specific life sentence explicit grant of a dismissal motion based solely on
which you recommend.” Scott claims that this violates the procedural grounds. Those grounds are independent of
principle established in Caldwell v. Mississippi, 472 U.S. 320 federal law.” Id. at 744.
(1985), that courts must not mislead the jury into believing it
has less responsibility than it actually does for choosing the Nothing in the Ohio Supreme Court’s analysis with regard
death sentence. to the unanimity instruction suggests that the court relied on
federal law. That court explicitly said that Scott had waived
We recently rejected this precise claim in Mapes v. Coyle, the error by failing to object at trial, and that it had previously
171 F.3d 408, 414-15 (6th Cir. 1999). Moreover, as the interpreted a state statute to require unanimity anyway. There
district court correctly held, Caldwell is limited to situations is no mention of a plain-error analysis, and not even a hint
in which the jury is misled as to its role “in a way that allows that federal law played a role in dismissing this claim. And
[it] to feel less responsible than it should for the sentencing the Ohio Supreme Court’s concluding sentence in ruling on
decision. Thus, to establish a Caldwell violation, a defendant the unanimity instruction, even if it could be viewed as related
necessarily must show that the remarks to the jury improperly to federal law, was in addition to and separate from its
described the role assigned to the jury by local law.” Romano explicit holding on state procedural grounds.
v. Oklahoma, 512 U.S. 1, 9 (1994) (citations and alterations
omitted); see also Dugger, 489 U.S. at 407; Kordenbrock, Finally, in Engle v. Isaac, 456 U.S. 107, 124-29 (1982), the
919 F.2d at 1101. As Mapes points out, this instruction Supreme Court specifically found that default imposed for
accurately describes Ohio law. There is no error with regard failure to object contemporaneously as required by Ohio’s
to this instruction. Rule 30 is an adequate and independent state ground to bar
federal habeas review absent a showing of cause and
The trial court also instructed the jury: prejudice. In so holding, the Court specifically rejected
Scott’s argument:
You must not be influenced by any consideration of
sympathy or prejudice. It is your duty to carefully weigh Relying upon State v. Long, [...] respondents argue that
the evidence to decide all disputed questions of fact, to the Ohio Supreme Court has recognized its power, under
apply the instructions of the Court to your findings, and Ohio's plain-error rule, to excuse Rule 30 defaults. Long,
to render your verdict accordingly. In fulfilling your however, does not persuade us that the Ohio courts
18 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 35

would have excused respondents' defaults. First, the on that jury, id. at 1040, its requirement of an explicit
Long court stressed that the plain-error rule applies only instruction that “a solitary juror may prevent a death penalty
in "exceptional circumstances," such as where, "but for recommendation” was prospective only; Brooks did not hold
the error, the outcome of the trial clearly would have that all instructions requiring unanimous recommendations of
been otherwise." [...] Second, the Long decision itself life or death in previously decided Ohio death-penalty cases
refused to invoke the plain-error rule for a defendant who were unconstitutional. See id. at 1042. There is nothing in
presented a constitutional claim identical to the one the Brooks opinion to cast doubt on the Ohio Supreme
pressed by respondents. Court’s previous approval of Scott’s sentence (or, for that
matter, Mapes’s). As we have explained, our Coe decision,
See id. at 125 n. 27. In Coleman, the Court also very strongly which well preceded Mapes, explicitly held that unanimity
implied its continued disapproval of the rule the district court instructions like those in this case do not violate Mills. The
here ascribes to Knuckles. As a preamble to its discussion of Mapes dicta cannot preclude us from following Coe in this
independent state grounds, the Court acknowledged that it had case.
previously held that Oklahoma’s review for “fundamental
trial error” before applying state procedural defaults “was not We further note that the district court was clearly incorrect
independent of federal law so as to bar direct review because in finding error in the trial court’s failure to advise the jury in
the State had made application of the procedural bar depend its unanimity instruction as to the consequences of deadlock.
on an antecedent ruling on federal law.” Coleman, 501 U.S. The Supreme Court has chastised such instructions as
at 741 (citing Ake v. Oklahoma, 470 U.S. 68 (1985)) encouraging deadlock and undermining the strong
(quotations and alterations omitted). The Coleman Court then governmental interest in unanimous verdicts. See Jones v.
distinguished that holding by observing simply that “Ake was United States, 119 S.Ct. 2090, 2099-2100 (1999). We did the
a direct review case. We have never applied its rule regarding same in Coe, 161 F.3d at 339-40.
independent state grounds in federal habeas. But even if Ake
applies here, it does Coleman no good because the Virginia 2. The Trial Court’s Penalty-Phase Instructions
Supreme Court relied on an independent state procedural Regarding Considerations of Mercy and Effect of
rule.” Id. The Supreme Court, then, does not find the mere Recommendation of Death
reservation of discretion to review for plain error in
exceptional circumstances sufficient to constitute an As with the challenge to the unanimity instruction, the State
application of federal law. Neither Scott nor Knuckles points claims that Scott’s challenges to these two jury instructions
to any change in Ohio law that could distinguish Engle or are defaulted because Scott made no contemporaneous
Coleman from the present case, and as in Ohio’s Long case objection. The district court held that these claims had not
that Engle cites, the Ohio Court here did not invoke its plain- been procedurally defaulted because the Ohio Supreme Court
error review for this claim. had performed a plain-error review of each of them. The
district court determined, however, that the claims were
We issued a similar ruling in Paprocki v. Foltz, 869 F.2d without merit.
281, 284-85 (6th Cir. 1989). There we enforced a default for
failure to object contemporaneously in a Michigan court, We think that the district court erred in holding that these
although the state courts reserved the right to excuse the claims were not procedurally defaulted. As to each of them,
default for “manifest injustice.” We noted that the Ohio Supreme Court explicitly stated that Scott had failed
to raise any contemporaneous objection, and under its
precedent of State v. Fanning, 437 N.E.2d 583, 585 (Ohio
34 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 19

mitigating factors.” This instruction pertains only to the [w]e would be loath to adopt an exception to the "cause
weighing process, and not to the existence of individual and prejudice" rule that would discourage state appellate
mitigating or aggravating factors. Indeed, the instruction courts from undertaking the sort of inquiry conducted by
references these factors in the past tense, which suggests that the Michigan court, and we do not believe that the state
the jurors were to have formed their opinions on the factors’ court's explanation of why the jury instructions resulted
existence before attempting to reach unanimity on their net in no manifest injustice can fairly be said to have
weight. As in Coe, “[n]othing in this language could constituted a waiver of the procedural default.
reasonably be taken to require unanimity as to the presence of
a mitigating factor.” 161 F.3d at 338. Whether or not the Id. at 285. Although this statement appears addressed more
district court was correct that the instruction violated Ohio towards the determination of whether the state courts actually
law by not conforming with the Ohio Supreme Court’s enforced the bar (Maupin’s second prong) instead of its
subsequent decision in Brooks (which we find doubtful, given independence from federal law, the reasoning is equally
that court’s approval of Scott’s sentence), it does not violate applicable to this discussion.
Scott’s federal constitutional rights under Mills and therefore
cannot justify habeas relief. All in all, we think it is clear that Knuckles, an unpublished
decision of this court, cannot provide persuasive authority to
Our conclusion is not altered by the portion of the opinion support a finding that the Ohio Supreme Court did not rely on
in Mapes v. Coyle, 171 F.3d 408 (6th Cir. 1999), which an independent state procedural ground in disposing of
suggests that such unanimity instructions are erroneous. In Scott’s challenge to the trial court’s penalty-phase instruction
that Ohio capital case, we reviewed a similar challenge to a on jury unanimity.
virtually identical unanimity instruction. See Mapes, 171
F.3d at 416 (“[Y]ou must unanimously find that the State has In addition to his claim that Ohio’s contemporaneous-
failed to prove beyond a reasonable doubt that the aggravating objection rule is not independent of federal law, Scott also
circumstances of which the defendant was found guilty of argues that it is not “adequate” because it is not consistently
committing outweigh the mitigating factors.”). We stated in enforced. The Supreme Court has held that an independent
dicta that this instruction was erroneous because Brooks had state rule must be firmly established and regularly followed in
found such instructions to violate the Eighth and Fourteenth order to be adequate. See Ford v. Georgia, 498 U.S. 411,
Amendments, but we declined to issue a writ on this ground 423-24 (1991); Byrd v. Collins, No. 96-3209, slip op. at 53
because the petitioner had procedurally defaulted that claim. (6th Cir. Apr. 6, 2000) (following Ford). Scott claims that
See id. at 416-17, 419. The only reliance on federal the Ohio Supreme Court has retained “unfettered discretion”
constitutional law in Brooks, however, is its citation to Mills to waive the rule and has been “remarkably inconsistent” in
in explaining why it would thenceforth require that Ohio applying it. He points to cases where the court ignored
jurors be explicitly instructed that “a solitary juror may potential defaults and dismissed on the merits. In State v.
prevent a death penalty recommendation by finding that the Zuern, 512 N.E.2d 585, 592 (Ohio 1987), the capital
aggravating circumstances in the case do not outweigh the defendant raised his nine constitutional challenges to the
mitigating factors.” Brooks, 661 N.E.2d at 1042. Although state’s death penalty statute by a general oral objection rather
the Brooks case was remanded for resentencing because the than by a specific motion. The Ohio Supreme Court held that
Ohio Supreme Court could not be sure of the effect that the although this technically constituted waiver under Ohio law,
instruction to “determine unanimously that the death penalty “because of the nature of the case and the exacting review
is inappropriate before you can consider a life sentence” had necessary where the death penalty is involved, [it] reserve[d]
20 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 33

the right to consider the constitutional challenges in particular or more mitigating circumstances, the sentence shall
cases.” Id. This somewhat relaxed approach to reviewing a be life imprisonment.
claim that was raised, but in an incorrect manner, is a separate
matter entirely from Scott’s complete failure to object For both the death verdict and the life imprisonment
contemporaneously. In State v. Hamblin, 524 N.E.2d 476, verdict, the jury was told that its verdict must be
479 (Ohio 1988), the capital defendant raised in the appellate unanimous.
court two grounds for ineffective assistance of counsel, and
added three new grounds in the Supreme Court. Although the Id. at 337 (alterations in original). As in this case, the district
new grounds were technically waived, the court said that court in Coe found this instruction to be unacceptable under,
“[b]ecause this is a capital case, we will review all five inter alia, Mills, “because there was a reasonable probability
arguments relating to the claim of ineffective assistance of that the jurors believed that they could consider only those
counsel.” Id. As was the case in Zuern, Hamblin did not mitigating circumstances that they unanimously agreed were
involve a completely forfeited issue. In State v. Williams, 528 present.” Id. Coe upheld the instruction because requiring
N.E.2d 910, 914 (Ohio 1988), the Court observed that unanimity only as to the results of the weighing process “is a
“[b]ecause of the gravity of the sentence that has been far different matter than requiring unanimity as to the
imposed on appellant, we have reviewed the record with care presence of a mitigating factor . . . . The instructions say
for any errors that may not have been brought to our attention. clearly and correctly that in order to obtain a unanimous
In addition, we have considered any pertinent legal arguments verdict, each juror must conclude that the mitigators do not
which were not briefed or argued by the parties.” Despite this outweigh the aggravators.” Id. at 338 (emphasis in original).
observation, the court affirmed the sentence and did not In this regard, Coe specifically distinguished that instruction
discuss any specific error that the parties had not raised. from those at issue in Mills, 486 U.S. at 387 (reviewing a
None of these cases involved the contemporaneous-objection verdict form that read “Based upon the evidence we
rule. Finally, in State v. Coleman, 544 N.E.2d 622, 627 (Ohio unanimously find that each of the following mitigating
1989), the court did apparently waive the default resulting circumstances which is marked 'yes' has been proven to exist
from the defendant’s failure to object contemporaneously to by a preponderance of the evidence and each mitigating
a jury instruction: “However, since this is a capital case we circumstance marked 'no' has not been proven by a
have reviewed the jury instructions and find not only that preponderance of the evidence” (emphasis omitted)), and
there was a correct statement of the law but also that the trial Kubat, 867 F.2d at 369 (“If . . . you unanimously conclude
court additionally instructed the jury it could not convict the that there is a sufficiently mitigating factor or factors to
defendant of aggravated murder unless it found [specific preclude imposition of the death sentence, you should sign the
intent to kill].” verdict form which so indicates.”), which much more clearly
required unanimity in the finding of mitigating factors.
These cases do indicate that the Ohio Supreme Court
employs an abundance of caution in capital cases, and, on Similarly, Scott’s jury was instructed to recommend death
occasion, has relaxed its enforcement of default. They do not, if it unanimously found “that the aggravating circumstances
however, indicate that Ohio reserves so much leeway in which Jay Scott was found guilty of committing outweigh the
capital cases that we are justified here in ignoring its mitigating factors,” and to choose an appropriate life sentence
sovereign decision founded upon its own procedural rule. In if it was unanimous in finding “that the State of Ohio failed
cases where state procedural grounds have not been enforced to prove that the aggravating circumstances which the
by federal courts because they were not firmly established and defendant . . . was found guilty of committing, outweigh the
32 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 21

condemned by Mills v. Maryland, 486 U.S. 367 (1988). The regularly applied, the facts have been much more extreme
district court saw the fact that a minority of this Court had than these isolated examples of discretion. See, e.g, Ford,
followed Kubat, and the majority had merely distinguished it 498 U.S. at 423-24 (finding state rule governing timing of
factually, in Kordenbrock v. Scroggy, 919 F.2d 1091 (6th Cir. Batson challenges to racial makeup of jury not even remotely
1990) (en banc), as evidence that we would follow Kubat close to being “firmly established and regularly followed”
here. Therefore, the court found a substantial possibility that because it was a novel rule applied retroactively); Barr v. City
the “faulty jury instruction which created this mis-impression of Columbia, 378 U.S. 146, 149 (1964) (rejecting state court’s
violated Scott's Fourteenth Amendment right to be free from explanation that petition was worded too generally to have
deprivation of life without due process of law.” raised an issue because that court had recently accepted an
identically worded appeal); Warner v. United States, 975 F.2d
We think that the court’s likening of the instruction given 1207, 1213-14 (6th Cir. 1992) (rejecting Ohio Supreme
here to those at issue in Mills and Kubat was incorrect. Those Court’s reliance on failure to raise ineffective assistance on
instructions required the jury to be unanimous in its finding direct appeal as reason for default because there was no such
of each mitigating factor, whereas this instruction plainly requirement at the time). Rather, this case is more like those
applies only to the overall weighing of mitigating and in which some minor inconsistency in applying the rule has
aggravating factors. In this regard, Scott’s argument is been noted but held not to be severe enough to override the
indistinguishable from the one we recently rejected in Coe v. federalism, finality and comity interests served by enforcing
Bell, 161 F.3d 320, 336-39 (6th Cir. 1998). In that case, the bar. See, e.g., Coleman, 501 U.S. at 758 (White, J.,
concurring) (“Petitioner argues that the Virginia court does in
The jury was then given the form its verdict should take: fact waive the rule on occasion, but I am not now convinced
that there is a practice of waiving the rule when constitutional
(1) We, the Jury, unanimously find the following listed issues are at stake, even fundamental ones. The evidence is
statutory aggravating circumstance or circumstances; too scanty to permit a conclusion that the rule is no longer an
. . . . . adequate and independent state ground”); Dugger v. Adams,
(2) We, the Jury, unanimously find that there are no 489 U.S. 401, 410 n. 6 (1989) (“respondent asserts . . . that
mitigating circumstances sufficiently substantial to the Florida Supreme Court has failed to apply its procedural
outweigh the [aggravating circumstances] so listed rule consistently and regularly because it has addressed the
above. merits in several cases raising Caldwell claims on
(3) Therefore, we, the Jury, unanimously find that the postconviction review. In the vast majority of cases,
punishment shall be death. however, the [court] has faithfully applied its rule that claims
not raised on direct appeal cannot be raised on postconviction
The alternate result was then provided for and explained: review”); Byrd, No. 96-3209, slip op. at 53-54 (following
If you unanimously determine that no statutory Dugger in holding that four examples of waiver of default by
aggravating circumstance has been proved by the Ohio courts are not enough to overcome the vast majority of
State beyond a reasonable doubt; or if the Jury cases enforcing the default); Coe, 161 F.3d at 331 (“The few
unanimously determine that [aggravating [cases that are not adverse or too old to be relevant] are
circumstances] have been proved by the State isolated and unpublished, and so are . . . insufficient to defeat
beyond a reasonable doubt; but that said an otherwise ‘strict and regular’ practice”); Shepard v. Foltz,
[aggravating circumstances] are outweighed by one 771 F.2d 962, 966 (6th Cir. 1985) (“we [recently] questioned
our prior determination whether Michigan enforces a
22 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 31

contemporaneous objection rule with respect to Sandstrom State v. Springer, 586 N.E.2d 96, 97 (Ohio 1992) (syllabus),
violations, and, in any event, we held that a federal habeas the court held that when the jury became hopelessly
petitioner must meet the Sykes test if the Michigan courts in deadlocked as to sentence, the court is required to impose a
fact applied such a rule”). life sentence. In State v. Brooks, 661 N.E.2d 1030 (Ohio
1996), the court reviewed a sentencing instruction that the
Application of the adequate and independent state ground jury must unanimously agree that the death penalty is
doctrine in this case also requires an assessment of the inappropriate before recommending a life sentence. The court
specific state interest served by enforcing the found this contrary to § 2929.03(D)(2). See id. at 1040-41.
contemporaneous-objection rule. See Wesselman v. Seabold, Brooks purported to “harmonize” the Jenkins and Springer
834 F.2d 99, 101 (6th Cir. 1987) (noting that resolution of this holdings by requiring an instruction to be given thenceforth
prong “turns on the substantiality of the state interest that a solitary juror could prevent the imposition of the death
involved”); Maupin, 785 F.2d at 138 (same). This penalty. See id. at 1041-42. The district court found it
consideration reinforces the need to enforce the procedural “notable” that Springer and Brooks were decided after Scott’s
default here, because the contemporaneous-objection rule has sentence was imposed, but decided that Brooks had simply
been lauded as few other procedural requirements have been. clarified, not altered, Ohio law on the subject. It thus found
Not only did the Court expressly endorse Ohio’s Rule 30 in the trial court’s instruction requiring unanimity on life to be
Engle, but the sweeping language of cases such as United inconsistent with Ohio law.
States v. Frady, 456 U.S. 152 (1982) (raising the issue under
the Federal Rules), suggests that the Court places high Since “the fact that the instruction was allegedly incorrect
importance on the contemporaneous-objection rule regardless under state law is not a basis for habeas relief,” see Estelle v.
of jurisdiction: McGuire, 502 U.S. 62, 71-72 (1991), the district court went
on to observe that the “instructions left no room for the jury
Orderly procedure requires that the respective to believe the court could accept anything other than a
adversaries’ views as to how the jury should be unanimous recommendation, and gave no direction to the jury
instructed be presented to the trial judge in time to enable as to the effect a jury split would have on the jury’s prior
him to deliver an accurate charge and to minimize the determination of guilt, or on the sentence the trial court could
risk of committing reversible error. It is the rare case in or would then impose on Scott.” The court then followed
which an improper instruction will justify reversal of a Kubat v. Thieret, 867 F.2d 351 (7th Cir. 1989), which found
criminal conviction when no objection has been made in a similar instruction to create the impermissible possibility
the trial court. that individual jurors would believe that unanimity was
required as to the existence of mitigating factors, the result
Id. at 165-66 (quoting Henderson v. Kibbe, 431 U.S. 145, 154
(1977)). Perhaps nowhere, however, has this conviction been
stated more strongly than in Sykes:
open court.” Id. This rule was available to Scott’s trial court. Even
The contemporaneous-objection rule itself is by no without this rule, moreover, the Jenkins court found that any potential
means peculiar to Florida, and deserves greater respect ambiguity in the unanimity instruction was resolved by the
than Fay gives it, both for the fact that it is employed by “well-recognized [rule] that when statutes allow a jury in a criminal
a coordinate jurisdiction within the federal system and proceeding to influence punishment, such as the recommendation of life
imprisonment in place of death, and the statute fails to expressly authorize
for the many interests which it serves in its own right. A a nonunanimous vote, the jury cannot secure the lesser punishment absent
contemporaneous objection enables the record to be unanimity.” Id.
30 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 23

After you have retired, first, select a foreman or made with respect to the constitutional claim when the
forelady and when all 12 of you – I repeat – all 12 of you recollections of witnesses are freshest, not years later in
agree upon a verdict, you will sign the verdict in ink, and a federal habeas proceeding. It enables the judge who
advise the Court of this fact. You will remain in the jury observed the demeanor of those witnesses to make the
room until summoned back into the courtroom. When factual determinations necessary for properly deciding
you return to the courtroom, your verdict will be returned the federal constitutional question. While the 1966
to me, as you did before, and I will read it for you. amendment to § 2254 requires deference to be given to
such determinations made by state courts, the
(emphasis added by district court). This was based on the determinations themselves are less apt to be made in the
following provision of Ohio law: first instance if there is no contemporaneous objection to
the admission of the evidence on federal constitutional
If the trial jury unanimously finds, by proof beyond a grounds.
reasonable doubt, that the aggravating circumstances the A contemporaneous-objection rule may lead to the
offender was found guilty of committing outweigh the exclusion of the evidence objected to, thereby making a
mitigating factors, the trial jury shall recommend to the major contribution to finality in criminal litigation.
court that the sentence of death be imposed on the Without the evidence claimed to be vulnerable on federal
offender. Absent such a finding, the jury shall constitutional grounds, the jury may acquit the defendant,
recommend that the offender be sentenced to [one of the and that will be the end of the case; or it may nonetheless
following life imprisonment terms]. convict the defendant, and he will have one less federal
constitutional claim to assert in his federal habeas
Ohio Rev. Code § 2929.03(D)(2) (emphasis added by district petition. If the state trial judge admits the evidence in
court). It was clear to the district court that the statute did not question after a full hearing, the federal habeas court
require unanimity in recommending a life sentence, but rather pursuant to the 1966 amendment to § 2254 will gain
mandated life imprisonment if the jury reached anything but significant guidance from the state ruling in this regard.
unanimity on death. The court also reviewed three decisions Subtler considerations as well militate in favor of
of the Ohio Supreme Court interpreting § 2929.03(D)(2). The honoring a state contemporaneous-objection rule. An
first, State v. Jenkins, 473 N.E.2d 264, 270 (Ohio 1984) objection on the spot may force the prosecution to take a
(syllabus ¶ 10), held that a jury’s recommendation of7 life hard look at its hole card, and even if the prosecutor
imprisonment under that section must be unanimous. In thinks that the state trial judge will admit the evidence he
must contemplate the possibility of reversal by the state
appellate courts or the ultimate issuance of a federal writ
7 of habeas corpus based on the impropriety of the state
The district court suggested in its Order that the Jenkins decision
was available to the trial court when it sentenced Scott, but we think this court's rejection of the federal constitutional claim.
is clearly wrong. Scott’s sentencing-phase jury recommended the death We think that the rule of Fay v. Noia, broadly stated,
penalty on March 28, 1984, and the court adopted the recommendation on may encourage "sandbagging" on the part of defense
April 4, 1984, but Jenkins was not released until December 17, 1984. lawyers, who may take their chances on a verdict of not
Nevertheless, the Ohio Supreme Court approved of the unanimity
instruction in Jenkins with such sweeping language as to suggest that the guilty in a state trial court with the intent to raise their
question was well-settled under Ohio law. See Jenkins, 473 N.E.2d at constitutional claims in a federal habeas court if their
307. The Court relied almost exclusively on Ohio Crim. R. 31(A), which initial gamble does not pay off. The refusal of federal
provided: “The verdict shall be unanimous. It shall be in writing, signed habeas courts to honor contemporaneous-objection rules
by all jurors concurring therein, and returned by the jury to the judge in
24 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 29

may also make state courts themselves less stringent in On the other hand, if after considering all of the
their enforcement. Under the rule of Fay v. Noia, state relevant evidence raised at trial, the testimony, other
appellate courts know that a federal constitutional issue evidence, the statement of Jay Scott, and the arguments
raised for the first time in the proceeding before them of counsel, you find that the State of Ohio failed to prove
may well be decided in any event by a federal habeas that the aggravating circumstances which the defendant,
tribunal. Thus, their choice is between addressing the Jay Scott, was found guilty of committing, outweigh the
issue notwithstanding the petitioner's failure to timely mitigating factors, then you will return your verdict
object, or else face the prospect that the federal habeas reflecting your decision.
court will decide the question without the benefit of their In this event, you will then proceed to determine which
views. of two possible life imprisonment sentences to
The failure of the federal habeas courts generally to recommend to the Court. [...]
require compliance with a contemporaneous-objection Now, ladies and gentlemen, let me, first of all, before
rule tends to detract from the perception of the trial of a we continue, before I read to you what your verdict is,
criminal case in state court as a decisive and portentous you see it is almost identical, and when I say “It is almost
event. A defendant has been accused of a serious crime, identical,” to the forms that you have received before. It
and this is the time and place set for him to be tried by a says, and I just picked them up the way they were,
jury of his peers and found either guilty or not guilty by “Sentencing Proceeding” on the top, and it identifies the
that jury. To the greatest extent possible all issues which case, the case number, and then it says, “Verdict: We, the
bear on this charge should be determined in this jury in this case being duly empaneled and sworn, do find
proceeding: the accused is in the court-room, the jury is beyond a reasonable doubt that the aggravating
in the box, the judge is on the bench, and the witnesses, circumstances which the defendant, Jay Scott, was found
having been subpoenaed and duly sworn, await their turn guilty of committing, are sufficient to outweigh the
to testify. Society's resources have been concentrated at mitigating factors presented in this case.
that time and place in order to decide, within the limits of “We, the jury, recommend that the sentence of death
human fallibility, the question of guilt or innocence of be imposed upon the defendant, Jay Scott,” and, again,
one of its citizens. Any procedural rule which signed by the foreman or forelady and all 12 of you must
encourages the result that those proceedings be as free sign.
of error as possible is thoroughly desirable, and the The second form is: “We, the jury in this case being
contemporaneous-objection rule surely falls within this duly empaneled and sworn, do find that the aggravating
classification. circumstances which the defendant, Jay Scott, was found
We believe the adoption of the Francis rule in this guilty of committing, are not sufficient to outweigh the
situation will have the salutary effect of making the state mitigating factors present in this case.
trial on the merits the "main event," so to speak, rather “We, the jury, recommend that the defendant, Jay
than a "tryout on the road" for what will later be the Scott, be sentenced to life imprisonment with parole
determinative federal habeas hearing. There is nothing eligibility after sentencing,” and then there’s a blank with
in the Constitution or in the language of § 2254 which an asterisk which refers down and says, “insert years of
requires that the state trial on the issue of guilt or imprisonment,” and again, the signatures, and the first
innocence be devoted largely to the testimony of fact line is reserved for the foreman or forelady, and the
witnesses directed to the elements of the state crime, remainder of the eleven of you must sign that verdict
while only later will there occur in a federal habeas form. It must be unanimous. [...]
28 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 25

sentencing phase of a capital trial. See id. The Court hearing a full airing of the federal constitutional claims
observed that although it would not attempt to define “what which were not raised in the state proceedings. If a
it means to be ‘actually innocent’ of a death sentence,” id., it criminal defendant thinks that an action of the state trial
could not find such extraordinary injustice under the facts of court is about to deprive him of a federal constitutional
that case, where the mitigating and aggravating factors had right there is every reason for his following state
been found to be equal. See id. Scott has made no attempt to procedure in making known his objection.
demonstrate this kind of fundamental miscarriage of justice,
and we are confident that he cannot do so. Sykes, 433 U.S. at 88-90 (footnote omitted, emphasis added).
Certainly, Ohio’s rule passes the third Maupin prong in this
Accordingly, we hold that the district court erred in case.
concluding that Scott’s claim of constitutional error with
regard to the penalty-phase unanimity instruction was not (c). The Fourth Maupin Prong – The Cause and
procedurally defaulted, and in further concluding that even if Prejudice Test
the claim were defaulted, Scott demonstrated cause and
prejudice to excuse the procedural default. We further hold The district court’s primary rationale for excusing
that the Ohio Supreme Court relied on Ohio’s procedural default as to the unanimity instruction claim was
contemporaneous-objection rule—an adequate and that Scott had shown cause and prejudice to excuse his failure
independent state ground—in holding that this claim had been to object. The court’s only explanation of cause is that “Scott
defaulted; that Scott failed to demonstrate cause and prejudice reasonably believed a contemporaneous objection would be
to excuse the default, and that the district court erred in futile” because, as demonstrated in the Ohio Supreme Court’s
reaching the merits of this claim. We therefore REVERSE three-sentence disposition of this claim, that court’s precedent
the district court’s issuance of a writ of habeas corpus. at the time required jury verdicts as to both guilt and life
sentences to be unanimous. The United States Supreme
(d). The Merits of Scott’s Challenge to the Unanimity Court, however, has explicitly rejected this idea:
Instruction
the futility of presenting an objection to the state courts
Nevertheless, out of an abundance of caution and in order cannot alone constitute cause for a failure to object at
to clarify our precedents governing sentencing-phase trial. If a defendant perceives a constitutional claim and
instructions on jury unanimity, we will consider in the believes it may find favor in the federal courts, he may
alternative the merits of Scott’s challenge. The unanimity not bypass the state courts simply because he thinks they
instruction given to Scott’s jury read: will be unsympathetic to the claim. Even a state court
that has previously rejected a constitutional argument
If all 12 members of the jury find, by proof beyond a may decide, upon reflection, that the contention is valid.
reasonable doubt, that the aggravating circumstances Allowing criminal defendants to deprive the state courts
which Jay Scott was found guilty of committing of this opportunity would contradict the principles
outweigh the mitigating factors, then you must return supporting Sykes.
such a finding to the Court. I instruct you as a matter of
law that if you make such a finding, then you have no
choice and must recommend to the Court that the
sentence of death be imposed upon the defendant, Jay
Scott. [...]
26 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 27

Engle, 456 U.S. at 130 (footnotes omitted). Scott does not resulting from instruction error be evaluated in the total
address cause and prejudice on appeal,6 and even if he did he context of the events at trial. As we have often
would be hard-pressed to distinguish this holding; it was emphasized[,] a single instruction to a jury may not be
made in the context of Ohio’s contemporaneous-objection judged in artificial isolation, but must be viewed in the
rule, and the Court has said “that the standard for cause context of the overall charge. Moreover, a judgment of
should not vary depending on the timing of a procedural conviction is commonly the culmination of a trial which
default or on the strength of an uncertain and difficult includes testimony of witnesses, argument of counsel,
assessment of the relative magnitude of the benefits receipt of exhibits in evidence, and instruction of the jury
attributable to the state procedural rules [involved].” Murray by the judge. Thus not only is the challenged instruction
v. Carrier, 477 U.S. 478, 491 (1986). but one of many such instructions, but the process of
instruction itself is but one of several components of the
The district court’s finding of prejudice was based on the trial which may result in the judgment of conviction.
merits of Scott’s claim, and on its conclusion that the
sentencing proceedings might reasonably have come to a Id. at 169 (internal quotations, citations, and alterations
different result absent the instruction of which Scott omitted). Presumably, this same approach applies to jury
complains. Of course, evaluating the merits to determine the instructions in the sentencing phase as well. Our review of
applicability of procedural default is circular and undermines the briefs and record leaves us convinced that there is no such
the federalism concerns behind the doctrine. Moreover, while prejudice here. Scott offers no help in making that
Sykes left open the definition of “prejudice,” Frady assessment, however, and, in any event, we find that Scott
“eliminate[d] any doubt about its meaning for a defendant cannot show cause for his default.
who has failed to object to jury instructions at trial,” Frady,
456 U.S. at 168: Although neither the district court nor Scott mentions it, it
is worth noting that an exception to the requirement that a
[Henderson] summarized the degree of prejudice we federal habeas petitioner demonstrate cause and prejudice in
have required a prisoner to show before obtaining order to obtain review of his defaulted claims may be made
collateral relief for errors in the jury charge as "whether when the petitioner is able to demonstrate that failure to
the ailing instruction by itself so infected the entire trial consider those claims will result in a “fundamental
that the resulting conviction violates due process, not miscarriage of justice.” Coleman, 501 U.S. at 750; Engle,
merely whether the instruction is undesirable, erroneous, 456 U.S. at 135. The Court has explained that although,
or even universally condemned." We reaffirm this ordinarily, petitioners who can show a fundamental
formulation, which requires that the degree of prejudice miscarriage of justice will also be able to meet the cause and
prejudice requirement, in extraordinary cases, “where a
constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal habeas
6
Instead, Scott argues that even if we find procedural default, we court may grant the writ even in the absence of a showing of
should at least review his claim for plain error. The Supreme Court cause for the procedural default.” Carrier, 477 U.S. at 496;
rejected precisely this contention in Frady, 456 U.S. at 164-65, noting that Dugger, 489 U.S. at 410 n. 6. In Dugger, the Court noted that
to apply the same “plain-error” review to a habeas petition that would
apply on direct appeal destroys any respect for the finality of the state this exception will apply to death sentences only in
court judgment and allows the petition to function as a second appeal. extraordinary cases, given the difficulty of translating the
The Court was very clear that the cause and prejudice test must be used concept of actual innocence from the guilt phase to the
instead.