Johnson v. Mitchell

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0384p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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GARY VAN JOHNSON,
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Petitioner-Appellant,
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No. 00-3350
v.
,
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Respondent-Appellee. -
BETTY MITCHELL, Warden,
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 97-00858—Donald C. Nugent, District Judge.
Argued: December 6, 2007
Decided and Filed: November 4, 2009
Before: DAUGHTREY, MOORE, and GILMAN, Circuit Judges.

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COUNSEL
ARGUED: Timothy F. Sweeney, LAW OFFICE OF TIMOTHY FARRELL SWEENEY,
Cleveland, Ohio, for Appellant. Charles L. Wille, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Timothy F. Sweeney, LAW
OFFICE OF TIMOTHY FARRELL SWEENEY, Cleveland, Ohio, Michael J. Benza, LAW
OFFICE OF MICHAEL J. BENZA, Chagrin Falls, Ohio, for Appellant. Charles L. Wille,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
_________________

OPINION
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MARTHA CRAIG DAUGHTREY, Circuit Judge. Following his convictions in
Ohio state court for aggravated robbery and aggravated murder, with specifications, Gary
Van Johnson was sentenced to death. After exhausting his direct appeals, as well as avenues
for state collateral relief, Johnson petitioned for habeas relief in federal court under the
provisions of 28 U.S.C. § 2254. Denied the relief he desired, the petitioner now appeals to
this court and raises numerous claims of constitutional error, including arguments involving

1
No. 00-3350 Johnson v. Mitchell Page 2

alleged (1) insufficiency of the convicting evidence, (2) improper withholding of
impeachment evidence by the prosecution, (3) prosecutorial misconduct, (4) failure of the
trial judge to declare a mistrial, (5) ineffective assistance of counsel at the guilt phase of the
trial and (6) at the penalty phase of the trial, and (7) improper failure of the district judge
to recuse himself from the habeas proceedings. Although we find no merit to the other issues
raised on appeal for the reasons expressed below, we conclude that Johnson’s trial attorney
did not provide his client with effective assistance of counsel during the penalty phase of the
trial. As a result, we find it necessary to reverse the district court’s judgment and remand
the case for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

In addressing the petitioner’s conviction in Ohio state court, the Supreme Court of
the State of Ohio summarized the relevant facts and the initial procedural history of the case
as follows:

The appellant, Gary Johnson, was indicted on May 4, 1983, for aggravated
murder and aggravated robbery. The aggravated murder charge included
specifications that the appellant was committing or attempting to commit or
fleeing immediately after committing or attempting to commit aggravated
robbery, and that the defendant had a firearm on or about his person or under
his control while committing the offenses charged within the indictment.
The case went to trial for the first time on October 3, 1983. Appellant was
convicted of both charges and at the conclusion of the penalty phase the jury
recommended the death penalty. The trial court adopted the jury's
recommendation and imposed the death sentence.
However, the majority of this court held that the appellant was denied his
constitutional right to effective assistance of counsel because of defense
counsel's failure to investigate appellant's background for the purpose of
presenting evidence in mitigation at the penalty phase of the trial, and
counsel's failure to object to the inclusion in the indictment of the firearm
specification and its submission to the jury at both the guilt and penalty
phases of the proceedings. Also, we found that the trial court erred in
denying the appellant's request for a continuance, based on newly discovered
evidence at the guilt phase of the proceedings. Therefore, appellant's
convictions were reversed, his sentence was vacated and the cause was
remanded for a new trial. State v. Johnson [(Johnson I), 494 N.E.2d 1061
(Ohio 1986)].
The case was retried beginning November 12, 1986, and the following
evidence was adduced.
No. 00-3350 Johnson v. Mitchell Page 3

Steven Graster testified that his wife, Eunice Graster (the victim) had been
employed as a desk clerk at the Reno Hotel in Cleveland since the end of
1982. The Reno Hotel, where the victim was murdered, was primarily used
for prostitution and other sexual liaisons. On Tuesday, April 26, 1983,
Eunice was working the 7:00 a.m. to 3:30 p.m. shift as the clerk at the Reno
Hotel. There were five couples in the hotel during her shift; however,
registration records showed that four couples had checked out, leaving only
one of these five couples, Mr. and Mrs. Sid Arnold, in Room 23. Eunice's
husband, Steven, testified that he arrived at the hotel with their two children
at approximately 9:25 to 9:30 to pick up a W.I.C. coupon book from Eunice.
(W.I.C., Women, Infants and Children, is a federally subsidized basic
nutrition program.) He had a 10:00 a.m. appointment to take their two
children to the W.I.C. clinic at Miles and Broadway to participate in the
nutrition program. Apparently, Eunice had the program booklet at work and
Steven's purpose in visiting her was to obtain the booklet from his wife.
Steven remained at the hotel for approximately ten or fifteen minutes.
While Steven was talking to his wife, he noticed the appellant come into the
north doorway to the main entrance of the hotel. In order to allow entry into
the hotel, Eunice had to “buzz in” the appellant through a second and a third
set of doors. Appellant proceeded to a room used as an employees'
lunchroom. Shortly after this, Steven left to keep his 10:00 appointment at
the W.I.C. clinic. The records of the W.I.C. clinic show that Steven was on
time for his appointment.
Upon arriving at the W.I.C. clinic with his two children, Steven believed he
needed his wife's welfare card, so he called the hotel twice but received no
answer. He then left the clinic at 10:38 a.m. When Steven got home he
phoned the hotel for the third time and reached Ganelle Johnson, the hotel
manager, who notified Steven that she did not know where Eunice was.
Steven then gathered up his two children and drove back to the Reno Hotel.
When he arrived he learned that his wife was dead. Sergeant William
Manocchio observed Steven become hysterical and punch a hole in the wall
upon finding out about his wife.
Appellant's aunt, Vera Lundy, was a maid at the Reno Hotel. On April 26,
her shift began at 10:00 a.m. Upon arriving early, she went to a nearby
restaurant for coffee. Lundy testified that a couple of minutes before 10:00
she left the restaurant and headed for the hotel. At the north entrance to the
hotel she encountered a couple who told her that they had been trying to get
into the hotel for fifteen minutes. Lundy rang the doorbell and pounded on
the door, but received no response. She went to the back of the hotel and
looked through a window, but observed nothing. When she returned to the
front of the hotel she saw that one of the double doors was open and
appellant was walking down the front steps. Lundy testified that she noticed
that appellant had a brown envelope resembling those used by the hotel for
cash receipts. However, during cross-examination, she admitted that she had
No. 00-3350 Johnson v. Mitchell Page 4

not remembered, when asked prior to trial, whether appellant had anything
in his possession.
According to Lundy, she asked the appellant to go into the hotel with her to
find Eunice, and the appellant replied that “he wasn't going back into the
hotel, Dee [appellant's father, Robert Johnson, owner of the hotel] wasn't
going to blame him for anything that happened in the hotel.”
Two Cleveland vice officers, Detectives William Reiber and Edward Kelley,
who had been watching the hotel, corroborated Lundy's story by testifying
that they saw the appellant converse with Lundy and also noticed a yellow
envelope in his possession.
Detective Sergeant John McKibben testified that appellant told him that he
had not been on the front porch at all and had no conversation with Lundy.
However, later appellant testified that he responded to Lundy's request to
come inside by saying, “No, you just told me yesterday Ganelle [appellant's
sister and the hotel manager] said not to hang around Eunice's shift. You
want me to get in some trouble.” John Williams, who was blacktopping the
hotel's parking lot that day, overheard the conversation between Lundy and
the appellant, and corroborated the appellant's version.
Around 10:00 a.m., Lundy called Ganelle. According to Ganelle, Lundy was
nervous, upset, and close to tears. Lundy told Ganelle she could not get into
the hotel and could not find Eunice. Ganelle instructed Lundy to go back and
ring the doorbell again and she would phone the hotel switchboard. Ganelle
then phoned the hotel, hoping to reach Eunice, but received no answer.
Meanwhile, Lundy summoned the Cleveland police, and called Ganelle
again. Ganelle characterized Lundy as “hysterical” at this point. During the
second conversation, according to Ganelle, Lundy said: “I saw Gary [the
appellant] coming out of the hotel.” On cross-examination, however, Lundy
conceded that she had testified in the first trial in 1983 that she had not told
Ganelle about seeing appellant coming out of the hotel.
When Ganelle arrived at the hotel, she discovered that the door to the office
which was usually locked had been forced open, splintering the door jamb.
Upon entering the room, she found that all the receipts she had put on a desk
the day before, including those from the weekend, were gone. She estimated
the amount of money missing from the cash box was between $500 and
$900. She also discovered that the .38 caliber Smith & Wesson revolver,
usually kept in a top drawer of the desk where the money was kept, was
missing.
Cleveland police officer Fabian Henderson arrived at the hotel at
approximately 10:48 a.m. Officer Henderson and his partner searched for
Eunice and eventually found her body in the basement.
While the police were conducting their search, the two customers who had
been occupying a room at this time left the premises. Ganelle testified that
No. 00-3350 Johnson v. Mitchell Page 5

they were regular customers, identified by their registration card with the
fictitious names of “Mr. and Mrs. Sid Arnold.”
An autopsy performed on Eunice showed she had been shot five times and
internally bled to death. It was also determined that she was shot with either
a .38 or .357 caliber revolver.
At approximately 10:15 a.m. that day, appellant went to the apartment of
Bobby and Joyce Carter, which was located above Scotty's Mid-Town City
Tavern. He stayed until 8:00 p.m., drinking with the Carters. Joyce testified
that appellant had a roll of money an inch thick although he had borrowed
money on the previous two days to pay for his room at the Lancer Inn. Joyce
went down to the tavern several times to buy drinks, with appellant paying
for some or all of them, until Bobby suggested that it would be cheaper to
buy a bottle at the liquor store. Appellant gave Joyce $20 to buy liquor and
to pick up appellant's suit at a nearby dry-cleaning establishment.
After returning from the errand, Joyce went downstairs to the tavern to make
a call on the tavern's pay phone. The owner told her that there had been a
killing at the Reno Hotel, whereupon Joyce called Ganelle to find out who
had been killed. During the conversation, Joyce mentioned that appellant
was in her apartment. Upon returning to her apartment, Joyce told appellant
that she had told Ganelle where appellant was, and appellant responded that
he “wished I [Joyce] hadn't did it.”
Appellant testified on his own behalf at trial. He admitted going through the
north door when he entered the hotel, but denied that Eunice buzzed him in
any farther than the first set of doors. He claimed his reason for coming to
the hotel was to borrow his sister's, Robin Johnson's, car. Further, he
testified that he saw Steven assaulting Eunice, “pushing her head back and
forth * * * up against the corner of the office door.” Appellant asked where
his sister Robin was; upon being told that she was not there, he left.

He then testified that he walked to the Playland Bar at 55th and Euclid, then
to 65th Street, then turned back and went to King's Bar at 55th and Cedar,
and from there walked along Cedar Avenue and turned onto 40th Street,
going past the Reno Hotel. At this point, appellant claimed, Lundy called to
him and asked him to come into the hotel. From the hotel, he went to the
Carters' apartment at 77th and Cedar.

Appellant had given a similar account of his movements to Cleveland police
detectives, except that he claimed to have gone from the Reno to the Sterling
Hotel at East 40th and Prospect Streets before going to the Carters’
residence; he did not mention going to 65th Street.
Finally, appellant denied any part in the murder or robbery of Eunice
Graster.
No. 00-3350 Johnson v. Mitchell Page 6

On rebuttal, Ganelle testified about an incident in 1978 when her parents
went on vacation and left her in charge of the hotel. Eight hours after her
parents left for vacation, appellant threatened and then assaulted Ganelle in
order to get the keys to the hotel's cash box. Thereafter, when her parents
returned and were informed of the incident, the appellant was told he could
not have anything to do with the business end of the hotel. Also, Ganelle
testified that, during the investigation of the crime, appellant wanted her to
“get close” to Detective Moore to find out what progress the police were
making in the case.
After this second trial appellant was once again convicted and sentenced to
death. The court of appeals, having performed its statutory independent
analysis of the record and the proportionality of the sentence, affirmed the
sentence in all particulars.
State v. Johnson (Johnson II), 545 N.E.2d 636, 637-40 (Ohio 1989).

The Ohio Supreme Court affirmed Johnson’s conviction and his death sentence, see
id. at 640, and the United States Supreme Court denied his petition for certiorari. See
Johnson v. Ohio, 494 U.S. 1039 (1990). After collateral proceedings in state court also
proved unsuccessful, Johnson filed a petition for a writ of habeas corpus in federal district
court, raising 22 claims and also requesting that the district judge recuse himself from the
matter because he had previously served in the Cleveland prosecutor’s office. The court
denied relief and concluded that Johnson was not entitled to a certificate of appealability
because he had failed to make a substantial showing of the denial of a constitutional right.
See 28 U.S.C. § 2253(c)(2). However, we subsequently entered an order authorizing an
appeal on the following issues:

Whether Johnson’s counsel was ineffective in not timely objecting when the
prosecutor, in his guilt-phase closing, argued that the crime had been
committed by a left-handed person and that Johnson was left-handed;
Whether the prosecutor, in his guilt-phase closing, committed misconduct
when he argued that the crime had been committed by a left-handed person
and that Johnson was left-handed;
Whether Johnson’s trial counsel was ineffective in the penalty phase by
conducting an inadequate investigation and failing to present certain
mitigating evidence;
Whether the prosecutor committed misconduct by withholding the police
statement of Vera Lundy, in violation of Brady v. Maryland, 373 U.S. 83
(1963), and its progeny;
No. 00-3350 Johnson v. Mitchell Page 7

Whether counsel was ineffective at the penalty phase of trial in presenting
a wholly inadequate closing argument;
Whether the trial court erred in denying a mistrial after the prosecutor, in his
guilt-phase closing, argued that the crime had been committed by a left-
handed person and that Johnson was left-handed;
Whether there was sufficient evidence to support the convictions;
Whether the aggravating circumstance was supported by constitutionally
sufficient evidence; and
Whether the district court judge erred in denying the motion to recuse
himself.
II. DISCUSSION

Johnson’s petition is subject to review under the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), Pub.L.No. 104-132, 110 Stat. 1214 (1996), under which a
federal court may not grant the writ unless the state court adjudication on the merits either:

(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based upon an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). As explained by the United States Supreme Court in Williams v.
Taylor, 529 U.S. 362, 412-13 (2000):

Under the “contrary to” clause, a federal habeas court may grant the writ if
the state court arrives at a conclusion opposite to that reached by this Court
on a question of law or if the state court decides a case differently than this
Court has on a set of materially indistinguishable facts. Under the
“unreasonable application” clause, a federal habeas court may grant the writ
if the state court identifies the correct governing legal principle from this
Court’s decisions but unreasonably applies that principle to the facts of the
prisoner’s case.
In deciding whether a state court ruling involved an “unreasonable application” of federal
law, a habeas court does not focus merely upon whether the state court decision was
erroneous or incorrect; rather, a federal court may issue a writ of habeas corpus only if the
state court’s application of clearly-established federal law was objectively unreasonable. See
id. at 409-11. Furthermore, “[t]his court reviews a district court’s legal conclusions in a
No. 00-3350 Johnson v. Mitchell Page 8

habeas proceeding de novo and its factual findings for clear error.” Greer v. Mitchell, 264
F.3d 663, 671 (6th Cir. 2001) (citing Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999)).

1. Sufficiency of the Convicting Evidence

In analyzing a challenge to the sufficiency of the convicting evidence, we must
determine whether, viewing the trial testimony and exhibits in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). In doing so,
moreover, we do not reweigh the evidence, re-evaluate the credibility of witnesses, or
substitute our judgment for that of the jury. See United States v. Hilliard, 11 F.3d 618, 620
(6th Cir. 1993).

Nevertheless, Johnson urges us to do exactly what is prohibited: to reweigh the
evidence adduced at trial; to determine that certain witnesses should not be deemed credible;
and to substitute our judgment for that of the trial court. For example, the petitioner
contends that the circumstantial evidence offered at trial should have been accorded less
weight by the jury than the absence of certain “hard” evidence. Johnson emphasizes that the
prosecution offered no physical evidence connecting him to the crime: no fingerprints or
footprints that belonged to Johnson in the dusty basement where the victim was murdered,
nor any dust, dirt, blood, or gunshot residue on the petitioner’s clothing or on the petitioner
himself, again, despite the fact that the murder occurred in a dusty environment and involved
multiple discharges of a firearm in close quarters. Additionally, the prosecution produced
at trial no eyewitness to the shooting, no confession by the petitioner, no murder weapon,
and no testimony that Johnson had ever previously robbed or shot someone. Although,
individually and collectively, those arguments might be persuasive if made to a jury, we are
now held to a higher standard, i.e., not whether we would find the evidence sufficient to
convict the petitioner of the charged offenses, but whether the state court was unreasonable
in concluding that a rational trier of fact could so find.

A conviction for aggravated murder under section 2903.01(B) of the Ohio Revised
Code requires, in relevant part, that the jury find that the defendant purposely caused the
death of another individual “while committing or attempting to commit . . . aggravated
robbery.” In turn, “aggravated robbery” is, in part, defined by Ohio statutes as the
No. 00-3350 Johnson v. Mitchell Page 9

commission of a theft offense while possessing or using a deadly weapon. See Ohio Rev.
Code § 2911.01(A)(1). Because a theft occurs under Ohio’s criminal laws when one person
deprives another of property or services without consent, or by threat or intimidation, see
Ohio Rev. Code §§ 2913.02(A)(1), (4), or (5), Johnson could have been convicted of the
aggravated murder of Eunice Graster if the jury determined, beyond a reasonable doubt, that
he shot her in the basement of the Reno Hotel in furtherance of the theft of the receipts from
the hotel’s office.

In support of such a theory, the testimony of the victim’s husband put Johnson inside
the hotel’s locked doors shortly before the time Graster was murdered, despite the
petitioner’s denial that he had entered through the second set of locked doors on the morning
of the murder. Furthermore, shortly thereafter, the petitioner was observed on steps leading
from a hotel door not used by the general public and able to be opened only from inside the
building. At that time, Johnson was carrying a brown envelope similar to the envelopes that
the hotel clerks routinely used to hold business receipts. Johnson was also heard to say to
his aunt that he did not wish to re-enter the hotel because he didn’t want to be blamed for
anything that might have happened in the hotel. Finally, even though the petitioner had
borrowed money the previous days just to pay for cheap lodging, he was seen after the
murder and robbery with a roll of paper money estimated to be at least one-inch thick.

Despite Johnson’s contention that the testimony concerning his possession of a
brown envelope like that in which the stolen receipts were kept was “too convenient to be
credible,” that only one witness saw him on the front steps of the hotel, and that the
statement that he did not want to re-enter the hotel or be blamed for anything that happened
in the business was ambiguous, that evidence, combined with other testimony and inferences
viewed in the light most favorable to the prosecution, would indeed justify a rational trier
of fact in finding Johnson guilty of aggravated robbery and aggravated murder. Again, the
fact that we might not have reached such a conclusion is not determinative of the issue.
Rather, as long as the Ohio Supreme Court’s ruling that substantial evidence introduced at
trial proved Johnson’s guilt of aggravated robbery and aggravated murder beyond a
reasonable doubt was neither contrary to, nor an unreasonable application of, settled
Supreme Court jurisprudence, the petitioner is not entitled to a grant of relief on this issue.
No. 00-3350 Johnson v. Mitchell Page 10

2. Withholding of Evidence

Citing Brady v. Maryland, 373 U.S. 83 (1963), the petitioner nevertheless argues
that the prosecution’s case would have been effectively undermined had the state not
withheld evidence that would have tended to exonerate him or at least cast doubt on the
1
credibility of one of the chief witnesses against him, Vera Lundy. In Brady, the United
States Supreme Court imposed upon the prosecutorial arm of the government the
“obligation to turn over material that is both favorable to the defendant and material to
guilt or punishment.” United States v. Bencs, 28 F.3d 555, 560 (6th Cir. 1994).
“Moreover, it is well-settled that this disclosure obligation includes evidence that could
be used to impeach the credibility of a witness.” Schledwitz v. United States, 169 F.3d
1003, 1011 (6th Cir. 1999) (citing Giglio v. United States, 405 U.S. 150, 154-55 (1972)).
Nevertheless, a Brady violation will not result in a grant of relief unless the court
concludes that the improperly-withheld evidence “could reasonably be taken to put the
whole case in such a different light as to undermine confidence in the verdict.” Kyles
v. Whitley, 514 U.S. 419, 435 (1995).

Focusing solely upon the allegedly contradictory statements offered by Vera
Lundy, the petitioner notes Lundy’s testimony at Johnson’s trial that he was carrying a
brown envelope when she saw him outside the Reno Hotel. Johnson emphasizes,
however, that he later obtained documents showing that Lundy told police immediately
after the murder in 1983, “I can’t remember if he had anything in his hands.” Without
question, revelation of such an inconsistency could serve to undermine the credibility
of a strategic witness to the state’s effort to tie Johnson to the aggravated robbery at the
Reno Hotel. Even so, earlier “discovery” of Lundy’s statement to the police would not
have “put the whole case in such a different light as to undermine confidence in the
verdict.”

1
The petitioner alleges that various other items of information were also withheld by the
prosecution, but the certificate of appealability covers only Lundy’s statements made to police. As a result,
the others are not subject to review on appeal. 28 U.S.C. §§ 2253(c)(1), (2), and (3).
No. 00-3350 Johnson v. Mitchell Page 11

In fact, in his brief on appeal, Johnson readily admits “that Lundy was impeached
by the inconsistencies between her testimony in the two trials.” Yet he insists that
additional impeachment of Lundy with her police statement should have been allowed,
given the importance of the witness in the prosecution’s case. But the record shows that,
in addition to defense counsel’s cross-examination of Lundy regarding the
inconsistencies in her testimony about the petitioner’s possession of a brown envelope,
police officers William Reiber and Edward Kelley both testified at trial that on the
morning in question, they too had observed Gary Johnson leaving the Reno Hotel
carrying a “yellow” envelope similar to the kind they later learned were used by the
hotel staff. Thus, even if defense counsel had been provided earlier with Lundy’s
statement to the police in which she could not recall whether Johnson was carrying
anything with him when she saw him outside the Reno Hotel shortly after the time
Eunice Graster was killed, the prosecution’s case would not have been undermined,
given the testimony of the two police officers who corroborated Lundy’s version of
events.

There is even less reason to ascribe significant weight to the second variance
between Lundy’s trial testimony and information in her statement to the police proffered
by the petitioner. Lundy testified at trial that, upon seeing Gary Johnson coming down
the steps of the Reno Hotel, she asked him to go into the hotel with her to find the
victim, to which Johnson responded that he wasn’t going back into the hotel, raising the
implication that he had previously been inside the premises that morning. Yet, in her
statement to the police the morning after the crime, Lundy related that when she saw her
nephew “coming down the steps” and asked him to accompany her into the hotel, “[h]e
told me that he wasn’t going into the hotel,” not that he wasn’t going back into the hotel.
The value of this evidence as impeachment is obviously destroyed by the fact that
regardless of the slight discrepancy involved, both statements indicate that Lundy saw
Johnson “coming out of the hotel.” Moreover, testimony from another prosecution
witness placed Johnson inside the hotel’s locked doors shortly before the time of Eunice
Graster’s murder. The state court’s conclusion that there was no merit to the Brady
No. 00-3350 Johnson v. Mitchell Page 12

claim is thus neither contrary to nor an unreasonable application of clearly established
federal law as interpreted by the United States Supreme Court.

The petitioner also asserts that the district court erred in not permitting him to
engage in further discovery to determine whether the prosecution withheld other crucial
exculpatory or impeachment evidence and in not granting him an evidentiary hearing on
the matter. We review both a district court’s limitation on the scope of discovery and
a decision on whether to hold an evidentiary hearing for an abuse of discretion. See Lott
v. Coyle, 261 F.3d 594, 602 (6th Cir. 2001).

“Habeas petitioners have no right to automatic discovery.” Stanford v. Parker,
266 F.3d 442, 460 (6th Cir. 2001). A district court may, however, permit discovery in
a habeas proceeding if the “petitioner presents specific allegations showing reason to
believe that the facts, if fully developed, may lead the district court to believe that
federal habeas relief is appropriate.” Lott, 261 F.3d at 602 (citing Rule 6(a) of the Rules
Governing Section 2254 Proceedings for the United States District Courts; Lynott v.
Story, 929 F.2d 228, 232 (6th Cir. 1991)). Because Johnson has not satisfied this burden,
the district judge did not abuse his discretion in denying the discovery request.

Similarly, “[u]nder AEDPA, evidentiary hearings are not mandatory.” Vroman
v. Brigano, 346 F.3d 598, 606 (6th Cir. 2003). In fact, in determining whether to grant
an evidentiary hearing to a habeas corpus petitioner, the district court must decide
whether such a hearing would enable the petitioner to prove allegations that, if true,
would entitle the applicant to federal habeas relief. See Hartman v. Bagley, 492 F.3d
347, 361 (6th Cir. 2007), cert. denied, 128 S.Ct. 2971 (2008) (citing Schriro v.
Landrigan, 550 U.S. 465, 474 (2007)). In this case, Johnson has advanced no specific
allegations relating to his Brady claim that would entitle him to habeas relief. The
district court, therefore, also did not abuse its discretion in denying the petitioner’s
request for an evidentiary hearing in that court.
No. 00-3350 Johnson v. Mitchell Page 13

3. Prosecutorial Misconduct

In his next assignment of error, the petitioner focuses on the prosecution’s
argument to the jury that the victim was murdered by a left-handed person and that
Johnson was himself left-handed. He first contends that the argument amounted to
prosecutorial misconduct because no testimony was offered at the second trial to
establish either proposition.

During the state’s rebuttal argument during the guilt/innocence phase of the
proceedings, a member of the prosecution team stated to the jurors:

Eunice Graster was shot by a left-handed person. She was shot in the
back of the head on the left side. The two gunshot wounds to the back
are to the left side of the back, and you examine those pants. And there
he stood behind her, taller than she, that morning down in that dark
basement, and the first shot through her head drove her to her knees, to
the back of her, and that’s where the dirt came from on the knees.
(Emphasis added.)
The next two shots took her right in the back, and she fell over onto the
hose, and he leaned over her there and put the final shot into her left
breast, and that’s where that one bullet was found in that hose. The left-
handed Gary Johnson, the defendant in this case, ladies and gentlemen.
(Emphasis added.)
Defense counsel offered no immediate objection but, after the conclusion of the
argument and after the trial judge’s instructions to the jury, he did move for a mistrial
on the following basis:

[T]his is the first available opportunity I have had to address the Court
since the prosecutor made his final argument. I’m unaware of any
testimony in this record that the defendant was left-handed. Now, I could
very well be wrong. There was testimony in the previous trial that the
defendant was left-handed. I’m unaware of any testimony in this trial,
and that I think is critical because the prosecutor called the defendant
left-handed and testified, what I regard as testimony by the prosecutor,
that the defendant was left-handed. That became a critical part of his
theory in the demonstration he gave the jury, and certainly he has a right
to comment on the testimony and path of the bullets and all of that other
that is into evidence. But I don’t think he has a right to inform the jury
that the defendant is left-handed . . . .
No. 00-3350 Johnson v. Mitchell Page 14

The Ohio Supreme Court reviewed this allegation of error on direct appeal only
for plain error, reasoning that Johnson “failed to timely object to the prosecutor’s
comment that [the petitioner] was left-handed,” Johnson II, 545 N.E.2d 642. However,
the district court determined that defense counsel was not, in fact, untimely in noting his
objection. As the district judge explained:

According to defense counsel, he raised the issue regarding the
prosecutor’s comment at the first available opportunity he had to address
the court since the argument was made. At that time, counsel moved for
a mistrial and preserved for appeal the issue raised herein. From the
discussion among counsel and the trial court during the conference in
chambers, it is apparent that there was some confusion as to whether or
not evidence was adduced at trial which supported a finding that
Petitioner was left-handed. It is likely that because trial counsel was
unsure of whether such evidence existed at the second trial, he waited
until after closing arguments; this is hardly unreasonable. Also, counsel
regularly fail to raise objections during argument for tactical reasons in
trying not to antagonize the jury. This is true especially when as is the
case here, the statement objected to is an isolated one. In any event,
defense counsel did argue this issue on behalf of his client and preserved
it for appeal.
We have consistently “held that a state court’s plain error analysis does not save
a petitioner from procedural default.” Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir.
2006). Nevertheless, the warden does not now contend that this claim has been
procedurally defaulted. Indeed, in her brief, she addresses the issue on the merits
without arguing for the application of any procedural shortcuts. Thus, we opt to address
the allegation of error on the merits. See White v. Mitchell, 431 F.3d 517, 524 (6th Cir.
2005) (“procedural default is a defense that may be waived if not asserted; it is not a
jurisdictional matter and, therefore, we are not obligated to raise the issue sua sponte”).

Because the state court did not reach the merits of the claim, however, we must
conduct our own de novo review of the matter. See, e.g., Maples v. Stegall, 340 F.3d
433, 436 (6th Cir. 2003). When examining claims of prosecutorial misconduct, the
critical inquiry for this court “is the fairness of the trial, not the culpability of the
prosecutor.” Slagle v. Bagley, 457 F.3d 501, 516 (6th Cir. 2006) (citing Smith v.
Phillips, 455 U.S. 209, 219 (1982)). As a result, we must determine “whether the
No. 00-3350 Johnson v. Mitchell Page 15

improper comments or actions ‘so infected the trial with unfairness as to make the
resulting conviction a denial of due process.’” Id. at 515 (quoting Darden v.
Wainwright, 477 U.S. 168, 181 (1986)). In doing so:

[T]his circuit employs a two-prong test. See United States v. Carter, 236
F.3d 777, 783 (6th Cir. 2001). First, this court determines whether the
prosecution’s conduct or remarks were improper. If the answer is
affirmative, then the court considers four factors to decide whether the
improper acts were sufficiently flagrant to warrant reversal: (1) whether
the evidence against the defendant was strong[;] (2) whether the conduct
of the prosecution tended to mislead the jury or prejudice the defendant;
(3) whether the conduct or remarks were isolated or extensive; and
(4) whether the remarks were made deliberately or accidentally.
Id. at 515-16.

The prosecution’s supposition that the murderer must have been left-handed was
not an improper comment upon the evidence admitted at trial, amounting, as it did, to
nothing more than the state’s interpretation of the evidence that had been admitted at
trial. Indeed, defense counsel candidly admitted on the record that the prosecutor
“certainly . . . ha[d] a right to comment on the testimony and path of the bullets and all
of that other that is into evidence.” Nevertheless, the prosecutor’s description of
Johnson as left-handed must be considered improper because evidence that Johnson was
left-handed, which had been introduced at the first trial, was not reintroduced at the
second. However, an analysis of the four factors discussed in Slagle leads us to the
conclusion that the comment, although improper, was not sufficiently flagrant to
constitute a violation of due process.

First, the state’s case against Johnson consisted largely of circumstantial
evidence. But that evidence, as we have held, was sufficiently strong to justify a rational
trier of fact in finding Johnson guilty of aggravated robbery and aggravated murder.
Second, we recognize that, having argued that Eunice Graster was killed by a left-
handed individual, the prosecutor’s contention that Gary Johnson was, in fact, left-
handed was certainly less than helpful to the defense. But, third, the trial judge carefully
instructed the jurors that “[t]he evidence does not include the indictment, the opening
statements, or the closing arguments of counsel. Opening statements and the closing
No. 00-3350 Johnson v. Mitchell Page 16

arguments of counsel are designed to assist you, but they were not evidence.” Because
we must presume that the jurors adhered to the instructions given them, see, e.g., Zafiro
v. United States, 506 U.S. 534, 540-41 (1993), the possibility that the jurors were misled
or that the petitioner was unduly prejudiced by the single, isolated remark made during
rebuttal argument is exceedingly slim, especially in light of the other evidence
introduced against him. Fourth and finally, in response to the petitioner’s motion for a
mistrial based upon the improper argument, the prosecutor said that his “recollection of
the testimony [in the second trial] is that there is [evidence that Johnson is left-handed].”
Although that recollection was proven faulty, the circumstances presented here do not
justify a conclusion that the prosecutor intended to inject improper considerations into
the proceedings deliberately.

Under these circumstances, we cannot conclude that the prosecutor’s single,
isolated statement, apparently made unintentionally and not to mislead the jury, was
“sufficiently flagrant to warrant reversal.” Slagle, 457 F.3d at 516.

4. Failure to Declare a Mistrial

For the same reasons that lead us to conclude that the prosecutor’s “left-handed”
comments did not deprive the petitioner of a fair trial, we also conclude that the trial
judge did not commit an abuse of discretion in failing to grant a mistrial because of those
statements. See Zuern v. Tate, 336 F.3d 478, 485 (6th Cir. 2003) (review of a state
court’s denial of a mistrial requires application of a high standard: “reversal is not
warranted unless the comment ‘was potentially so misleading and prejudicial that it
deprived [the defendant] of a constitutionally fair trial’”) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 641-42 (1974)).

5. Ineffective Assistance of Counsel – Guilt Phase

Likewise, the petitioner’s allegation that he was denied the effective assistance
of counsel during the guilt phase of the trial is based on his contention that defense
counsel failed to object to the “left-handed” arguments that the prosecutor made to the
jury. But, because we have treated the petitioner’s claims regarding prosecutorial
No. 00-3350 Johnson v. Mitchell Page 17

misconduct during final argument as having been properly preserved for review, we have
implicitly held that trial counsel did not fail to object to the challenged comments in a
timely fashion. Thus, there is no basis on which to make a finding of ineffective
assistance of counsel at the guilt phase of Johnson’s trial.

6. Ineffective Assistance of Counsel – Sentencing Phase

Johnson alleges that his trial counsel failed to investigate the state’s case
adequately, failed to present mitigating evidence to the jury, and failed to articulate an
effective argument that the mitigating factors outweighed the aggravating factors. In
addressing these claims of ineffective assistance of counsel, we are guided by the now-
familiar two-part test of Strickland v. Washington, 466 U.S. 668 (1984). As required by
that analytical framework:

First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.
Id. at 687.

In Groseclose v. Bell, 130 F.3d 1161, 1167 (6th Cir. 1997), discussing the first
prong of the Strickland analysis, we recognized that:

The [Supreme] Court cautioned that in undertaking an ineffective-
assistance review, “[j]udicial scrutiny of counsel’s performance must be
highly deferential,” and must avoid the “second-guess[ing of] counsel’s
assistance . . ., [as] it is all too easy for a court, examining counsel’s
defense after it has proved unsuccessful, to conclude that a particular act
or omission of counsel was unreasonable.” Strickland, 466 U.S. at 689
. . . . In order to avoid “the distorting effects of hindsight,” a reviewing
“court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that . . . the challenged action
‘might be considered sound trial strategy.’” Id. (citation omitted).
No. 00-3350 Johnson v. Mitchell Page 18

Furthermore, in evaluating the prejudice suffered by a petitioner as a result of alleged
ineffective assistance of counsel, “[i]t is not enough for the defendant to show that the
errors had some conceivable effect on the outcome of the proceeding.” Strickland, 466
U.S. at 693. Indeed, “[v]irtually every act or omission of counsel would meet that test,
and not every error that conceivably could have influenced the outcome undermines the
reliability of the result of the proceeding.” Id. (citation omitted). Rather, the petitioner
“must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

As recounted in the factual and procedural background of this case, the Ohio
Supreme Court reversed Johnson’s original conviction and death sentence after the
court’s examination of the trial transcript led it to the following findings and
conclusions:

[C]ounsel for the defense openly stated to the court that he had not even
discussed with his client the penalty aspect of the case. Counsel then
asked for, and was given, a ten-minute recess. Following this recess, the
trial court, with the acquiescence of defense counsel, set the hearing for
the very next day. At the hearing, the defense presented only the
unsworn statement of appellant. No mitigating evidence of any kind was
offered.
This scenario, depicting as it does the complete lack of preparation and
zeal on the part of defense counsel regarding the question of whether
their client should live or die, compels the conclusion that appellant was
deprived of any effective, meaningful assistance from his counsel at this
obviously critical stage of the proceedings.
*****
It is quite clear . . . that the duty of defense counsel to investigate his
client’s background for mitigating factors is an indispensable component
of the constitutional requirement that a criminal defendant – and
particularly one on trial for his life – be afforded effective representation
and assistance from his lawyer. The maladroit presentation offered by
appellant’s attorneys in the sentencing phase did not, by any standard,
meet that requirement. No mitigating evidence of any kind was offered.
No continuance was requested for purposes of investigating appellant’s
background for mitigating factors. The only “evidence” for the defense
No. 00-3350 Johnson v. Mitchell Page 19

heard by the jury was a lengthy unsworn statement by appellant
protesting his innocence, followed by a closing argument by defense
counsel in a similar vein, actually berating the jurors for their guilty
verdict and repeatedly urging them to “reconsider the evidence.”
Johnson I, 494 N.E.2d at 1063-64 (footnotes omitted).

The same attorney who secured that favorable decision from the Ohio Supreme
Court, James Willis, also represented Johnson at the retrial. But, after arguing
successfully that Johnson’s original attorney had been constitutionally ineffective in
failing to present available mitigating evidence at the penalty phase of the proceedings,
Willis himself committed the same grievous error. He introduced no mitigating evidence
at the penalty phase of the second trial, instead relying solely upon Johnson’s unsworn
statement to the jury, a statement in which the petitioner chastised the finders-of-fact at
length for failing to find a reasonable doubt as to his guilt despite what he alleged were
numerous weaknesses in the prosecution’s case.

In a series of affidavits submitted to the Ohio state courts in post-conviction
proceedings, Willis admitted that his sole preparation for Johnson’s capital murder trial
consisted of reading the transcript of the petitioner’s first trial – a trial that had resulted
in convictions for aggravated murder and aggravated robbery, as well as a sentence of
death – and speaking with Johnson himself. According to Willis, “[b]ecause [he] had
the testimony of the witnesses’ [sic] from the first trial, [he] did not interview them prior
to the second trial.” Willis also did not request the assistance of an investigator for the
trial because he did not “[feel a] need for any new investigation into Gary Johnson’s
case.” But without the aid of pre-trial investigation that would have permitted effective
cross-examination of the state’s witnesses, Johnson’s original counsel had been unable
to persuade the jury that his client should not be executed, and there is little – really
nothing at all – in the record to suggest that Willis could have succeeded where the first
lawyer had failed. As for the possibility of calling witnesses in Johnson’s behalf, an
affidavit from Willis described the entirety of his preparation for the all-important
sentencing phase as follows:
No. 00-3350 Johnson v. Mitchell Page 20

7) Prior to the mitigation phase of Gary Johnson’s second trial, I
requested that Gary Johnson give me the name of an individual that could
say something good on his behalf.
8) Gary Johnson could think of no one that could say anything good on
his behalf.
9) Because Gary Johnson did not feel that there was anyone who could
say something good on his behalf, there was no mitigation presented in
Gary Johnson’s case.
Such inaction on the part of defense counsel in this case amounted to a complete
abdication of the attorney’s duty to investigate and present evidence in mitigation. The
United States Supreme Court, this court, and other courts of appeals have consistently
recognized the need for meaningful investigation by defense counsel prior to the making
a decision not to present mitigation testimony during the penalty phase of a capital trial.
After such investigation, strategic choices made by counsel “are virtually
unchallengeable.” Strickland, 466 U.S. at 690. However, “strategic choices made after
less than complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.” Id. at 691. “In other
words, counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Wiggins v. Smith, 539 U.S.
510, 521 (2003). Thus, the question is “not whether counsel should have presented a
mitigation case. Rather, we focus on whether the investigation supporting counsel’s
decision not to introduce mitigating evidence [of the defendant’s] background was itself
reasonable.” Id. at 523. Moreover, as the Supreme Court has noted, “[N]o decision to
forgo the presentation of mitigation evidence is reasonable trial strategy under Strickland
unless the decision is made after a reasonable investigation into mitigation evidence.”
Williams v. Anderson, 460 F.3d 789, 804 (6th Cir. 2006) (citing Wiggins, 539 U.S. at
533-34).
No. 00-3350 Johnson v. Mitchell Page 21

Even so, as explained by the United States Court of Appeals for the Third
Circuit:

[T]he preparation and investigation for the penalty phase are different
from the guilt phase. The penalty phase focuses not on absolving the
defendant from guilt, but rather on the production of evidence to make
a case for life. The purpose of investigation is to find witnesses to help
humanize the defendant, given that a jury has found him guilty of a
capital offense.
Marshall v. Hendricks, 307 F.3d 36, 103 (3d Cir. 2002). Likewise, we have recognized
that, under Ohio’s death penalty statute, “a capital defendant found guilty of a death
specification has to present some mitigating evidence in order to avoid the death
penalty.” Mapes v. Coyle, 171 F.3d 408, 426 (6th Cir. 1999). Consequently, “when a
client faces the prospect of being put to death unless counsel obtains and presents
something in mitigation, minimal standards require some investigation.” Id. (emphasis
in original).

Significantly, however, “[t]he sole source of mitigating factors cannot properly
be that information which defendant may volunteer; counsel must make some effort at
independent investigation in order to make a reasoned, informed decision as to their
utility.” Carter v. Bell, 218 F.3d 581, 596 (6th Cir. 2000). In determining what degree
of investigation is “reasonable,” the Supreme Court and this court have long looked to
“the standards for capital defense work articulated by the American Bar Association
(ABA).” Wiggins, 539 U.S. at 524 (citing Strickland, 466 U.S. at 688). Pursuant to
those standards:

The lawyer . . . has a substantial and important role to perform in raising
mitigating factors both to the prosecutor initially and to the court at
sentencing. This cannot effectively be done on the basis of broad general
emotional appeals or on the strength of statements made to the lawyer by
the defendant. Information concerning the defendant’s background,
education, employment record, mental and emotional stability, family
relationships, and the like, will be relevant, as will mitigating
circumstances surrounding the commission of the offense itself.
Investigation is essential to the fulfillment of these functions.
No. 00-3350 Johnson v. Mitchell Page 22

1 ABA Standards for Criminal Justice 4-4.1 (1982 Supp.) (emphasis added) (quoted in
Hartman, 492 F.3d at 373 (Clay, J., concurring in part and dissenting in part).

The failure of capital defense attorneys to abide by these standards has, on
numerous occasions, led both the Supreme Court and this court to conclude that the
constitutional guarantee of effective assistance of counsel has been breached. Indeed,
in Poindexter v. Mitchell, 454 F.3d 564, 577-78 (6th Cir. 2006), we catalogued a number
of instances in which insufficient investigation by defense counsel necessitated a
conclusion that capital defendants did not receive the legal assistance to which they were
constitutionally entitled, including:

Wiggins, 539 U.S. at 523-28, 123 S.Ct. 2527 (finding ineffective
assistance based on counsel’s failure to follow leads that would have lead
them to discover evidence of severe privation and abuse as a child from
his alcoholic mother, and sexual torment and rape in foster care, as well
as diminished mental capacities); Williams v. Taylor, 529 U.S. 362, 395,
120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (finding counsel’s performance
deficient where counsel failed to investigate or otherwise prepare for
mitigation until a week before trial and failed to “conduct an
investigation that would have uncovered extensive records graphically
describing Williams’ [sic] nightmarish childhood”); Harries v. Bell, 417
F.3d 631, 638 (6th Cir. 2005) (finding that counsel failed to conduct an
adequate investigation where counsel limited their investigation to
contacting by telephone the petitioner’s mother and brother, sent requests
for information to some institutions in which the petitioner had been
confined, interviewed only four witnesses – the petitioner, his co-
defendant, and two state witnesses, and declined to seek the assistance
of a mental health expert or to conduct a thorough investigation into the
petitioner’s history of mental health or family background); Hamblin v.
Mitchell, 354 F.3d 482, 488 (6th Cir. 2003) (adopting the 1989 and 2003
standard for attorneys representing death penalty prisoners in 1982 and
holding that counsel’s failure to adhere to those guidelines constituted
ineffective assistance of counsel; finding that had counsel investigated
the case, counsel would have found a large body of mitigating evidence
including fact that the petitioner grew up in a poor and unstable
environment and likely suffered from a mental disability or disorder);
Powell v. Collins, 332 F.3d 376, 399 (6th Cir. 2003) (holding that trial
counsel’s failure to construct the defendant’s social history through
access to background records and interviews with family and friends
constituted deficient performance); Coleman v. Mitchell, 268 F.3d 417,
452 (6th Cir. 2001) (holding that trial counsel were ineffective for failing
No. 00-3350 Johnson v. Mitchell Page 23

to investigate and present the petitioner’s highly traumatic childhood,
two head injuries, psychological history showing a borderline retarded
range IQ and mixed personality disorder); Carter v. Bell, 218 F.3d 581,
597, 599 (6th Cir. 2000) (finding deficient performance because counsel
failed to investigate and present at mitigation evidence of the defendant’s
illegitimacy, family history, limited education, low IQ, mental condition
and positive relationships with children); Austin v. Bell, 126 F.3d 843,
849 (6th Cir. 1997) (holding that counsel’s failure to investigate and
present mitigation “because he didn’t think it would do any good”
rendered death sentence unreliable); Glenn v. Tate, 71 F.3d 1204, 1208-
11 (6th Cir. 1995) (holding that counsel’s investigation was deficient
where the attorneys presented some, but failed to uncover more
convincing mitigating evidence, including evidence of the petitioner’s
mental retardation, his neurological impairment, and his need for
attention and susceptibility to the influence of his brother).
See also Haliym v. Mitchell, 492 F.3d 680, 712 (6th Cir. 2007) (finding ineffective
assistance of counsel when counsel failed to investigate evidence of the defendant’s
abusive and violent childhood, evidence that the defendant suffered intense grief over
the loss of his family, and evidence that the defendant suffered from a mental defect).

The performance of the petitioner’s counsel at his second trial in this matter is,
in many respects, more egregiously deficient than any of the examples listed in our
Poindexter opinion. The petitioner’s counsel at his second trial reviewed the transcript
of the first trial, noted the ineffective assistance provided by Johnson’s original attorney,
and convinced the Ohio state courts that it violated constitutional standards of
representation. Nevertheless, prior to and during Johnson’s second trial, attorney Willis
admittedly interviewed no new or old witnesses, did not request or hire an investigator
for the second trial, “felt there was no need for any new investigation into Gary
Johnson’s case,” did not seek any discovery prior to the second trial, and presented no
evidence in mitigation at the second trial. Thus, in effect, Willis merely replayed the
disastrous initial trial a second time. Not surprisingly, the same result followed, and
Johnson was once again sentenced to die at the hands of the state for his crimes.

Willis’s justification for the lack of any investigation into his client’s background
and circumstances, beyond the mere reading of the transcript of the first trial, was that
Johnson “could think of no one that could say anything good on his behalf.” Obviously,
No. 00-3350 Johnson v. Mitchell Page 24

confining investigation in the defense of a capital case to only the “good” things that
could be said about the client cannot be considered a reasonable investigation. In this
case, moreover, there were witnesses available to speak in the petitioner’s favor. For
instance, his daughter, sister, brother, and former mother-in-law all filed affidavits with
the state court during post-conviction proceedings stating that they had not been
contacted by Willis to testify on his behalf at the mitigation stage of the proceedings.
Without their testimony, the jury was left with no alternative but to believe that
Johnson’s own relatives were not supportive enough of him to plead for his life during
the proceedings. Had they testified, however, each of the affiants claimed that they
“would have asked the jury to extend [Johnson] mercy and . . . to spare his life” by
imposing a life sentence rather than the death penalty. In addition, the petitioner’s sister
and brother “could have detailed for his sentencing jury, specifics of his childhood,
character and life, based upon [their] familiarity with him as a child and [their] first
hand-knowledge [sic] of [their] family and home-life.” Johnson’s former mother-in-law
could have further humanized the petitioner in the eyes of the jury by giving “details
about the marriage of [her] daughter and Gary Johnson, based upon [her] first-hand
knowledge of that marriage.”

Without question, the utter lack of meaningful mitigation investigation by Willis
in this case compels the conclusion that the representation offered to Johnson by his
second trial attorney was deficient and failed to meet minimum standards of competency.
Accordingly, because Willis’s failure to conduct any investigation was plainly
ineffective under the precedents of both this court and the Supreme Court, see
Poindexter, 454 F. 3d at 577-78, we conclude that the Ohio Court of Appeals applied
Strickland unreasonably in reaching the opposite conclusion.

Before Johnson can succeed on his claim for habeas relief based upon the
ineffective assistance of counsel, however, he must also demonstrate prejudice from that
deficient performance. “[I]n order to establish prejudice, the new evidence that a habeas
petitioner presents must differ in a substantial way – in strength and subject matter –
from the evidence actually presented at sentencing.” Hill v. Mitchell, 400 F.3d 308, 319
No. 00-3350 Johnson v. Mitchell Page 25

(6th Cir. 2005). Further, because the Ohio Court of Appeals failed to reach the prejudice
prong in its analysis, we review this issue de novo. See Wiggins, 539 U.S. at 534 (“[O]ur
review is not circumscribed by a state court conclusion with respect to prejudice, as
neither of the state courts below reached this prong of the Strickland analysis.”).

Given the fact that the only evidence placed before the jury by the petitioner
during the sentencing phase of the trial was Johnson’s own unsworn statement, a
statement in which he chastised the jurors for their guilty verdict, almost any other
mitigation testimony offered would be considered both stronger and more substantial
than what Willis proffered. In addition to the testimony of numerous family members
– individuals whose identity was known to, or easily ascertained by, defense counsel and
who could have provided a more compassionate tint to the portrait of the petitioner –
even the most basic of investigations would have revealed other important mitigation
evidence as well.

For example, Dr. James Eisenberg, a licensed psychologist, stated by affidavit
in the post-conviction proceedings in state court that normal investigation and
psychological evaluation would have revealed many facts about the petitioner that could
have been presented to the jury. In his examinations and investigations, Eisenberg
found, for instance, that Johnson’s father frequently beat the petitioner as a child with
an iron cord or coffee pot cord until Johnson would bleed. On one occasion, the father
even threatened then-young Johnson “with a German Luger stating, ‘I should have killed
you when you were a baby.’” Johnson was further exposed to violence both in
elementary school where he often engaged in fights, and in his predominately white
neighborhood where the African-American petitioner was forced to defend himself in
numerous skirmishes.

Additional items of potential mitigation discovered by Eisenberg included the
following findings:

As an adult Gary’s interests remained adolescent and unrealistic. . . . He
used various drugs including cocaine. Though he denies an underlying
drug problem, some of his friends believed that he was indeed a frequent
user of rock cocaine.
No. 00-3350 Johnson v. Mitchell Page 26

*****
He has some difficulty . . . with inductive reasoning. He is likely to take
things literally and respond directly to a crisis. Mr. Johnson shows low
scores on several performance subtests. The results indicate inadequate
visual organization and the inability to perceive the “whole in relation to
the parts.”
*****
Individuals with similar [Minnesota Multiphasic Personality Inventory -
2] profiles experience repeated failures in interpersonal relationships.
Although dependent and having strong needs for affection, they are
anxious much of the time, feel easily threatened, and are overly
suspicious of others. They have difficulty expressing emotions in a
modulated fashion. . . . Individuals with [a profile like Johnson’s] are
usually unable to express emotions in an adapted, modulated way and
they may alternate between overcontrol and direct, undercontrolled
emotional outbursts.
*****
His responses [on the Rorschach Inkblot Test] suggest that he is
somewhat impulsive, oppositional, and has failed to internalize adult
values. Mr. Johnson’s profile is much more typical of adolescents than
adults with numerous animal but few human responses.
*****
[T]hough he is intellectually competent, he is quite adolescent and
impulsive in his behavior with a lack of the ability to correctly organize
and synthesize information. His emotional development has not matched
his intellectual development. He has a grandiose response to the world
in which he reacts to rather than thinks through crises.
*****
Gary Johnson meets the criteria for cocaine abuse and for a mixed
personality disorder. . . . The diagnosis of cocaine abuse is based on the
reported use by the defendant and on corroborated statements by other
witnesses, notably Edward Williams. The facts of the crime are
consistent with what is known about how cocaine affects mood, thinking,
and behavior. High-dose abuse can result in extreme agitation,
explosiveness, and paranoid ideation.
Gary Johnson’s mixed personality disorder with histrionic, antisocial,
and paranoid features is directly related to his home life and early
childhood development. The features of the histrionic disorder include
dramatic and intense behavior, problematic interpersonal relationships,
No. 00-3350 Johnson v. Mitchell Page 27

and attention-seeking. Histrionic individuals usually develop new
relationships with relative ease and they appear to be socially able.
However, these relationships generally turn out to be shallow without
substance. The main defenses of a histrionic are denial and projection of
blame unto others. Gary’s antisocial features stem from an early
introduction into criminal activity both within and outside the home. The
family business encouraged prostitution, gambling, and pimping. Gary’s
paranoid features stem from his home environment both in and around
Hough and in a predominantly white neighborhood in which he had to
always be on guard. When combined together, the histrionic, antisocial,
and paranoid features result in an individual who is [sic] likes to be the
center of attention, but is suspicious of those who are drawn to him; is in
need of immediate gratification but trusts no one to meet those needs;
attempts to develop interpersonal relationships, but has little
understanding of adult, in-depth feelings. When these features are
combined with drugs, specifically cocaine, then the need for immediate
gratification becomes overwhelming as does the paranoid mistrust. In
summary, Gary Johnson’s basic personality style is very much adolescent
in quality. He has failed to develop adult values and appears to be
fixated in a stage of development usually associated with impulsiveness
and antisocial conduct. The use of drugs, notably cocaine, also maintains
a high need for immediate gratification. Gary has never internalized an
appropriate adult value system. This is directly due to the environment
in which he was raised in which his dominant role models were engaged
in illegal activities. Gary learned well from these role models and saw
himself as successful in various illicit activities including prostitution and
drug use.
Each of these items of information about Johnson and his social and emotional
development “differ[ed] in a substantial way . . . from the evidence actually presented
at sentencing.” Id. When combined, moreover, a drastically different portrait of the
petitioner emerges. At trial, counsel’s failure to investigate left Johnson with only his
own unsworn, antagonistic statement to the jury to counteract the evidence of
aggravating circumstances attendant to the crime. As a result, the jurors were left with
no choice but to view Johnson as a calculating individual, apparently a loner without
human connection even with his family, and willing to murder anyone standing in the
way of his acquisition of money that could be used to purchase drugs or alcohol. The
presence of other information easily uncovered by the investigation of an effective
advocate, however, would have allowed the jurors to see that the petitioner’s relatives
did care about Johnson, that as a child he had endured many hardships and traumatic
No. 00-3350 Johnson v. Mitchell Page 28

experiences, and that he suffered from a personality disorder that, although not absolving
him of responsibility for his crimes, helped explain why certain circumstances would be
viewed by the petitioner in certain ways and would prompt certain abnormal responses.
The jury might also have seen Johnson as an individual struggling to act appropriately
in the face of paranoia and a distorted world view, a struggle that was only exacerbated
by drug abuse. To hold in this case that serious consideration of such evidence could not
have “change[d] the calculation the jury previously made when weighing the aggravating
and mitigating circumstances of the murder,” Hill, 400 F.3d at 319, is – in our judgment
– to ignore reality.

Johnson also contends that Willis provided ineffective assistance of counsel by
failing to deliver an adequate closing argument during the sentencing phase of the
second trial. We find no merit to this claim for the simple reason that the petitioner
cannot establish that he was prejudiced by that argument, even if the closing was not as
stirring or as eloquent as it could have been. As we have noted, “In the context of a
death sentence, the question of prejudice turns on ‘whether there is a reasonable
probability that, absent the errors, the sentencer . . . would have concluded that the
balance of aggravating and mitigating circumstances did not warrant death.’” Id., 400
F.3d at 314 (quoting Strickland, 466 U.S. at 695). Given the grossly inadequate
presentence investigation performed by Willis, and the complete absence of mitigation
evidence put before the jury, there is little more that counsel could have done in terms
of arguing the petitioner’s case to the jury.

7. Motion to Recuse

In a final issue certified for appeal, the petitioner contends that Judge Nugent, the
district judge who ruled on his habeas petition, should have recused himself, an action
required under 28 U.S.C. § 455(a) “if a reasonable, objective person, knowing all of the
circumstances, would have questioned the judge’s impartiality.” Hughes v. United
States, 899 F.3d 1495, 1501 (6th Cir. 1990). We review the denial of a motion to recuse
for abuse of discretion. See Bell v. Johnson, 404 F.3d 997, 1004 (6th Cir. 2005).
No. 00-3350 Johnson v. Mitchell Page 29

In the district court, Johnson based his allegations of bias on Judge Nugent’s past
connections with others involved in the litigation of his case in state court. Specifically,
he argued that a reasonable person would have questioned the judge’s impartiality
because Judge Nugent was, during the time of Johnson’s first trial, a colleague of the
lead prosecutor, who also participated in Johnson’s second trial; Judge Nugent was,
during the time of that second trial, a colleague of the two state-court trial judges who
presided over Johnson’s first and second trials, respectively; Judge Nugent was, during
the time of Johnson’s post-conviction litigation in state court, a colleague of the appeals
judges who reviewed his petitions; and Judge Nugent prosecuted Donald Williams, a
potential witness in this case. However, unlike the judges in out-of-circuit cases cited
by Johnson, see Russell v. Lane, 890 F.2d 947, 948 (7th Cir. 1989); Rice v. McKenzie,
581 F.2d 1114, 1117 (4th Cir. 1978), Judge Nugent did not play any part in Johnson’s
prosecution or the adjudication of his state trials, appeals, or petitions for post-conviction
relief.

Moreover, we have consistently held that a judge need not recuse himself on the
basis of prior contact with a party or a witness, as long as the judge does not have a
familial, financial, or similarly close relationship with the party or witness and as long
as the judge has not received out-of-court information about the case at hand. See, e.g.,
United States v. Dandy, 998 F.2d 1344, 1349-50 (6th Cir. 1993); United States v.
Sammons, 918 F.2d 592, 598-99 (6th Cir. 1990). Because Johnson has not alleged that
Judge Nugent had any such direct contact with Johnson’s cases or received extrajudicial
information about them as a result of his prior connections, we conclude that the district
court did not commit an abuse of discretion in denying the petitioner’s motion to recuse.

III. CONCLUSION

Although most of the issues certified for review on appeal do not entitle the
petitioner to habeas relief, Johnson has established that the state courts unreasonably
applied well-established law in concluding that the petitioner’s attorney at his second
trial afforded him constitutionally effective assistance of counsel during the penalty
phase of the proceedings. We therefore AFFIRM the denial of habeas relief regarding
No. 00-3350 Johnson v. Mitchell Page 30

the state court’s judgment of conviction, but REVERSE the judgment of the district
court relating to the petitioner’s sentence and REMAND this matter for issuance of a
conditional writ of habeas corpus vacating Johnson’s death sentence, unless the State of
Ohio conducts a new sentencing hearing within 180 days of remand.