Goff v. Bagley

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0096p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
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JAMES R. GOFF,
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Petitioner-Appellant,
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No. 06-4669
v.
,
>
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Respondent-Appellee. -
MARGARET BAGLEY, Warden,
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Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 02-00307—James L. Graham, District Judge.
Argued: April 28, 2009
Decided and Filed: April 6, 2010
Before: MERRITT, MOORE, and GILMAN, Circuit Judges.

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COUNSEL
ARGUED: David J. Graeff, Westerville, Ohio, for Appellant. Laurence R. Snyder,
OFFICE OF THE OHIO ATTORNEY GENERAL, Cleveland, Ohio, for Appellee.
ON BRIEF: David J. Graeff, Westerville, Ohio, W. Joseph Edwards, LAW OFFICE
OF W. JOSEPH EDWARDS, Columbus, Ohio, for Appellant. Laurence R. Snyder,
OFFICE OF THE OHIO ATTORNEY GENERAL, Cleveland, Ohio, for Appellee.
MOORE, J., delivered the opinion of the court, in which GILMAN, J., joined.
MERRITT, J. (pp. 47-49), delivered a separate opinion concurring in part and dissenting
in part.
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OPINION
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KAREN NELSON MOORE, Circuit Judge. Petitioner-Appellant James R. Goff
(“Goff”) appeals the district court’s denial of his petition for a writ of habeas corpus
filed pursuant to 28 U.S.C. § 2254. Goff was convicted in Ohio state court in 1995 of

1
No. 06-4669 Goff v. Bagley Page 2

two counts of aggravated murder (each with one capital specification),1 three counts of
aggravated burglary, two counts of aggravated robbery, and one count of grand theft.
He was sentenced to death.

The district court certified seventeen claims for appeal, but we are primarily
concerned with only two. First, Goff asserts that the jury instructions given during the
penalty phase of his trial regarding unanimity and mitigating factors were flawed.
Second, Goff asserts that his appellate counsel was ineffective for failing to raise a claim
during Goff’s direct appeal to the Ohio Court of Appeals that Goff was denied his right,
under Ohio law, to allocute before sentencing.

For the reasons discussed below, we conclude that Goff is entitled to relief on the
basis of the second issue, but that recent Supreme Court precedent precludes his first
issue. We conclude that Goff’s remaining assignments of error are meritless. We
therefore REVERSE the decision of the district court and GRANT Goff a conditional
writ of habeas corpus based on Goff’s ninth and twelfth assignments of error.

I. BACKGROUND

On January 24, 1995, a Clinton County, Ohio, grand jury indicted Goff on two
counts of aggravated murder (each with a capital specification), three counts of
aggravated burglary, two counts of aggravated robbery, and two counts of grand theft
with specifications. Following a trial, Goff was convicted of all counts except for one
count of grand theft and the grand-theft specifications. At the conclusion of the penalty-
phase hearing, the jury recommended that Goff be sentenced to death. The trial judge
then conducted his own weighing of the mitigating and aggravating factors and
sentenced Goff to death. Goff appealed to the Twelfth District Court of Appeals for
Clinton County, Ohio, which affirmed his convictions and sentence. State v. Goff, No.
CA95-09-026, 1997 WL 194898, at *31 (Ohio Ct. App. Apr. 21, 1997). Goff then

1
The two murder convictions were merged into one count of aggravated murder with an
aggravated burglary specification.
No. 06-4669 Goff v. Bagley Page 3

appealed to the Ohio Supreme Court, which affirmed Goff’s death sentence and made
the following findings of fact:

[Myrtle] Rutledge, an eighty-eight-year-old woman, was in the
process of moving out of her old farmhouse and into a new doublewide
trailer home that was built directly behind the farmhouse. Her daughter,
Esther Crownover, had been helping her sort out items from the old
house, in which she had lived for forty-seven years.
Rutledge decided to purchase some new furniture for her new
house, and on September 14, 1994, she and Crownover went to Butler
Home Furnishings in Wilmington, Ohio. After purchasing a new
mattress, box springs, chair, ottoman, and sofa, Rutledge made
arrangements for the furniture to be delivered the next day.
Butler Home Furnishings had employed appellant for furniture
deliveries for about a year. Harold E. Butler, Jr., the son of the owner,
would contact appellant when he had a delivery and then, depending on
the item, would get another person to assist appellant with the delivery.
Butler Furnishings had also used Manuel Jackson as a delivery person for
the seven months prior to September 1994.
Appellant and Jackson were contacted to make the delivery to
Rutledge on September 15, 1994. When appellant and Jackson arrived
with the furniture, Rutledge directed them to put the new furniture in the
new house. Since there was no bed frame in the new house, appellant
asked whether Rutledge wanted them to obtain the frame from the old
house and assemble the bed in the new house. After they indicated that
they would not charge Rutledge any additional money for this service,
Rutledge took them into the old house, up to the second floor, and
pointed out the bed frame that was to be used with the new bedding. The
old house was in a state of disarray from the ongoing moving process.
Jackson thought he saw appellant “snooping” through Rutledge’s
belongings.
Appellant and Jackson disassembled the old bed, took the frame
to the new house, and set up the new bed. While Jackson finished the
assembly, appellant obtained Rutledge’s signature on the delivery form.
Later that afternoon, Rodney Rutledge, the victim’s son, arrived
at his mother’s house around 4:00 p.m. to mow the lawn. She showed
him her new furnishings that had been delivered that day. When he left
(around 5:30 p.m.), his mother’s car was parked in the driveway next to
the house.
On the night of September 15, Myrtle Rutledge spoke on the
telephone to her sister (6:30-7:00 p.m.) and her sister-in-law (around 9:00
No. 06-4669 Goff v. Bagley Page 4

p.m.) concerning the upcoming family reunion on Saturday, September
17. On Friday, September 16, 1994, Rutledge’s son drove past his
mother’s house six different times during the course of his employment.
Each time his mother’s car was not parked in the driveway next to the
house. Rutledge’s sister also drove past the house and noticed the car
was not there.
On Saturday morning, Crownover went to Rutledge’s home to
pick her up for the reunion. The car was not there, and when her mother
did not answer the door, Crownover assumed that she had already left for
the reunion. When she arrived at the reunion her mother was not there.
She went back to her mother’s house, entered, and went upstairs to her
mother’s bedroom. There she found her mother’s battered and naked
body lying on the floor of the bedroom. A pool of blood was on the bed,
as well as the floor area. After ascertaining that there was no pulse, she
tried using the phone to call the police, but there was no dial tone. She
covered her mother with a blanket and drove to the police station.
The police and an ambulance were dispatched. Once it was
determined that Rutledge was dead, the police secured the scene and
began a criminal investigation. Deputy Sheriff Fred W. Moeller, the
crime scene investigator, determined that the door to the victim’s house
had been forced open. Someone had apparently tried to enter the home
through a window, because the window screen was lying on the ground
outside the house, but entry was not made though the window. The
phone wires on the outside of the house were cut.
No fingerprints were found in the bedroom. In Moeller’s opinion,
the room had been cleaned. Other fingerprint smudges were found in the
house, but never matched. There was no evidence of blood anywhere
else in the house except the bedroom. Denise K. Rankin, a serologist,
identified a pubic hair found at the scene as being consistent with a pubic
hair obtained from appellant after his arrest.
After Moeller left the scene to return to the police station, he was
notified that the victim’s car was found on North High Street in the city
of Wilmington. He went to the scene, and the keys to the car were found
on the floor on the driver’s side. A pink towel was on the front seat of
the car, and no prints were found anywhere on the car. Moeller believed
that someone had wiped down the car.
The deputy coroner testified that Rutledge died from blunt and
sharp trauma to the head, neck, shoulders, and ankle. Her death also
resulted from blood loss due to multiple stab wounds, one of which
severed the carotid artery. The coroner was unable to determine the time
of death.
No. 06-4669 Goff v. Bagley Page 5

When appellant and Jackson left Rutledge’s house after
delivering the furniture on September 15, they purchased some crack
cocaine and went to appellant’s house to smoke it. Appellant later
returned the truck to the furniture store.
Jackson did not see appellant again until 1:00-1:30 a.m. the
following morning when he saw him running through an alley. Jackson
later saw him on Grant Street. Appellant had changed his clothes from
earlier in the day when they had delivered the furniture.
Appellant asked Jackson whether he wanted to smoke some
crack, showing him what Jackson thought was about $80 worth of crack.
Jackson was with Tim Bart, and all three proceeded to appellant’s house.
After they smoked the crack, which took a couple of hours, Bart
suggested stealing some meat to trade for more crack. They were going
to walk to the store, when appellant indicated he knew where there was
a car they could use, but it was stolen. Appellant said the car was on
North High Street. Bart and Jackson opted not to use the stolen car, and
they walked to Bob and Carl’s Meat Store. Bart stole the meat, and he
and appellant “took off.”
Jackson saw appellant around noon the next day, and appellant
asked him to tell anyone who asked, that he (appellant) had been with
Jackson from 9:00 p.m. on September 15 until 3:00 a.m. on September
16.
Later, on September 17, Timothy Shaffer found appellant playing
pool at a game room in Wilmington. Appellant, Shaffer, and David
Walls ended up at Shaffer’s trailer, where they smoked three to four
“joints.” All three left the trailer and went to buy some crack. After the
purchase, Shaffer and appellant went to appellant’s house to smoke the
crack. Appellant wanted Shaffer to sign a note saying that he (Shaffer)
helped in a crime committed on September 15, but Shaffer refused to
sign. Appellant went and stayed at Shaffer’s trailer until September 21.
While staying with Shaffer, appellant talked with him about
Rutledge’s death. Appellant asked Shaffer what he would do if he killed
someone. Appellant then told him he stabbed a lady and bent the blade
of the knife. He also choked her. Appellant then told Shaffer he took her
car and left it in front of the Mulberry Hill Apartments. After wiping the
steering wheel, he drove the car to North High Street, where he left it,
and then bought about $90 worth of crack and smoked it. Appellant
admitted that he went to Rutledge’s house to rob her.
On September 21, Shaffer saw a newspaper article about the
Rutledge murder and asked appellant to leave his trailer. About two
weeks later, Shaffer received a letter from appellant telling him that his
No. 06-4669 Goff v. Bagley Page 6

(appellant’s) life was in Shaffer’s hands and to not tell anyone. Shaffer
eventually called Colonel Tim Smith at the sheriff’s department, and
turned over a pair of tennis shoes and a laundry basket belonging to
appellant. Shaffer ultimately told Smith all of what appellant had said
about the murder.
Appellant was arrested on September 21, 1994 on a drug charge.
During the interrogation, appellant admitted that he had a crack habit,
that he bought crack whenever he could, and that he would steal and
trade items to buy crack. He indicated that he delivered furniture to the
Rutledge residence, but when questioned about the murder, appellant
asked for an attorney and questioning ceased.
The state also presented three inmates, Jerry Lee Price, Danny
Smith, and Keith Jones, to testify to various statements appellant had
made to them regarding the Rutledge crime while incarcerated on the
drug charge. Smith’s testimony was excluded, since he failed to identify
appellant in court; however, both Price and Jones testified regarding the
murder.
Jones’s testimony was by far the most damaging. Appellant told
Jones that he had delivered furniture to an old lady in her late 80’s. She
had given appellant some money when he put the new bed together and
later that night he went back to get the rest of the money he saw she had.
Appellant entered through the kitchen and found Rutledge in the
bedroom. Appellant told him that Rutledge called him “Jimmy,” so he
“had to get rid of the bitch.” Jones asked him questions concerning the
crime because Jones could not believe appellant could do such a thing to
an old woman. Appellant asserted that she had lived her life, and since
she could send him to prison, he had to kill her. After he took the money
and the car, he went and bought crack. Appellant ran into a friend and
they went and smoked it. Appellant said he killed her by himself, using
a fishing tackle knife from his house. He told Jones they would never
find the knife because he got rid of it. Jones wrote a letter to the
prosecutor’s office, although he was not sure he believed appellant, but
that he (Jones) had an elderly mother and could not think of something
like that happening to her.

State v. Goff (Goff I), 694 N.E.2d 916, 918-21 (Ohio 1998). Goff filed a motion to
reconsider in the Ohio Supreme Court, which denied the motion on July 22, 1998. State
v. Goff, 696 N.E.2d 1089 (Ohio 1998). Goff then filed a petition for a writ of certiorari
with the United States Supreme Court, which denied the writ on June 24, 1999. Goff v.
Ohio, 527 U.S. 1039 (1999).
No. 06-4669 Goff v. Bagley Page 7

Goff also filed a motion for postconviction relief pursuant to OHIO REV. CODE
§ 2953.21, which the state trial court denied on procedural and substantive grounds
without an evidentiary hearing. See State v. Goff (Goff II), No. CA2000-05-014, 2001
WL 208845, at *1 (Ohio Ct. App. Mar. 5, 2001). The Ohio Court of Appeals affirmed
this denial, id. at *10, and the Ohio Supreme Court declined review, State v. Goff, 749
N.E.2d 756 (Ohio 2001).

Additionally, Goff filed a motion for relief from judgment, making claims very
similar to those raised in his motion for postconviction relief, which both the trial court
and the Ohio Court of Appeals denied. State v. Goff, No. CA2000-10-026, 2001 WL
649820, at *1 (Ohio Ct. App. June 11, 2001). The Ohio Supreme Court again declined
review. State v. Goff, 754 N.E.2d 261 (Ohio 2001).

Goff next applied to reopen his direct appeal pursuant to Rule 26(B) of the Ohio
Rules of Appellate Procedure, alleging ineffective assistance of appellate counsel, and
the Ohio Court of Appeals denied the application on procedural and substantive grounds.
See State v. Goff (Goff III), 784 N.E.2d 700, 701 (Ohio 2003). The Ohio Supreme Court
affirmed this decision on March 19, 2003, noting that “Goff ha[d] failed to raise a
genuine issue as to whether [he] was deprived of the effective assistance of counsel on
appeal before the court of appeals, as required by App.R. 26(B)(5).” Id. (internal
quotation marks omitted) (second alteration in original).

In May 2002, Goff filed a petition for a writ of habeas corpus in the United States
District Court for the Southern District of Ohio, alleging twenty-five constitutional
errors. Joint Appendix (“J.A.”) at 9-72 (Goff Pet. for Writ). Without holding an
evidentiary hearing, the district court denied each claim. Goff v. Bagley (Goff IV), No.
1:02-cv-307, 2006 WL 3590369 (S.D. Ohio Dec. 1, 2006). Goff filed a motion for a
certificate of appealability (“COA”), and the district court certified seventeen claims for
appellate review, including whether Goff received ineffective assistance of appellate
counsel because his appellate counsel failed to raise the issue of Goff’s right to
allocution before sentencing. Goff v. Bagley (Goff V), No. 1:02-cv-307, 2007 WL
No. 06-4669 Goff v. Bagley Page 8

2601096, at *10-11, *15, *21 (S.D. Ohio Sept. 10, 2007).2 We now consider each of
Goff’s arguments.

II. ANALYSIS

A. Standard of Review

“In a habeas corpus proceeding, this Court reviews a district court’s legal
conclusions de novo and its factual findings for clear error.” Smith v. Mitchell, 567 F.3d
246, 255 (6th Cir.) (internal quotation marks omitted), cert. denied, 130 S. Ct. 742
(2009). Goff filed his habeas petition in May 2002, after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and, thus, AEDPA
governs our review of Goff’s claims. Lindh v. Murphy, 521 U.S. 320, 326-27, 336
(1997). AEDPA provides that

(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the

2
The district court granted a COA regarding whether “petitioner’s appellate attorneys provide[d]
constitutionally ineffective assistance of counsel by failing to raise the . . . failure of trial counsel to
recognize that James Goff was constitutionally entitled to allocution before sentencing.” Goff V, 2007 WL
2601096, at *10-11. However, because it is the duty of the sentencing court to ensure that the defendant
is provided the right to allocution, at least one Ohio court has noted that trial counsel is not ineffective for
failing to bring to the sentencing court’s attention the fact that the court has not provided the defendant an
opportunity to allocute. City of Defiance v. Cannon, 592 N.E.2d 884, 887-88 (Ohio Ct. App. 1990)
(“[O]nly the trial court has a duty with respect to affording a defendant the right to allocution. Because
counsel ha[s] no duty, [counsel’s] omission to advise [is] . . . neither deficient nor prejudicial.”). Thus,
under this view, appellate counsel is ineffective for failing to raise the sentencing court’s failure to provide
allocution, not for failing to raise a claim of ineffective assistance of trial counsel on the basis of the
absence of allocution.
Even assuming that Cannon is a correct statement of Ohio law, Cannon does not prevent us from
addressing the issue of whether Goff’s appellate counsel were ineffective when they failed to raise the
allocution issue. As an initial matter, Goff has argued the ineffective-assistance-of-appellate-
counsel/allocution issue both as a failure to raise the issue of trial counsel’s ineffectiveness and as a failure
to raise the right to allocution directly. See Goff Br. at 79-80; Goff Reply Br. at 19. Further, aside from
the COA on the issue of ineffective assistance of appellate counsel, the district court granted a COA on
the issue of allocution: “Were Petitioner Goff’s constitutional rights violated when he was denied the right
to allocution before sentencing?” Goff V, 2007 WL 2601096, at *15. Under the two argument headings,
Goff has consistently noted his right to allocution under Ohio law. See J.A. at 53 (Pet. for Writ at 45);
Goff Reply Br. at 19. The district court discussed this issue as well. Goff IV, 2006 WL 3590369, at *33.
Additionally, in his Ohio Rule of Appellate Procedure 26(B) application before the Ohio Court of Appeals,
Goff reasserted his right to allocution under Ohio law. J.A. at 1237-38 (Rule 26(B) Application at 4-5).
Therefore, we conclude that Goff’s argument that his appellate counsel was ineffective for failing to raise
the issue of allocution in Goff’s direct appeal is encompassed by the COA. Cf. Hargrave v. McKee, 248
F. App’x 718, 723-24 (6th Cir. 2007) (unpublished opinion) (analyzing a COA to include a general
argument petitioner made in his briefs on appeal and before both the state court and the district court).
No. 06-4669 Goff v. Bagley Page 9

merits in State court proceedings unless the adjudication of the
claim—
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.

28 U.S.C. § 2254(d) (emphases added). The Supreme Court has explained that

[u]nder 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.

Terry Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O’Connor, J., opinion of the
Court for Part II). We have stressed that “clearly established law under the Act
encompasses more than just bright-line rules laid down by the Court. It also clearly
includes legal principles and standards enunciated in the Court’s decisions.” Taylor v.
Withrow, 288 F.3d 846, 850 (6th Cir. 2002). We apply a presumption of correctness to
state court findings of fact, and the petitioner may rebut this presumption only “‘by clear
and convincing evidence.’” Bailey v. Mitchell, 271 F.3d 652, 656 (6th Cir. 2001)
(quoting 28 U.S.C. § 2254(e)(1); citing Seymour v. Walker, 224 F.3d 542, 552 (6th Cir.
2000); Sanders v. Freeman, 221 F.3d 846, 852 (6th Cir. 2000)).

B. Jury Instructions

In his first and second assignments of error, Goff argues that the state court’s
failure to provide clearer jury instructions on mitigation impermissibly required the jury
to reject unanimously a sentence of death, based on unanimous mitigation findings,
before considering a life sentence alternative and did not provide adequate guidance on
No. 06-4669 Goff v. Bagley Page 10

the use of mitigating factors. While the instant appeal was pending, the United States
Supreme Court granted certiorari and decided Smith v. Spisak (Spisak III), — U.S. —,
130 S. Ct. 696 (2010), rev’g Spisak v. Mitchell (Spisak I), 465 F.3d 684 (6th Cir. 2006),
vacated by Hudson v. Spisak, 128 S. Ct. 373 (2007), reinstated by Spisak v. Hudson
(Spisak II), 512 F.3d 852 (6th Cir. 2008), the resolution of which controls our disposition
of Goff’s first jury-instruction claim and counsels against our granting relief on the
second.

1. Jury Instructions Regarding “Acquit-first” and Unanimity in
Mitigation Factors
In his first assignment of error, Goff relies heavily on this court’s acquittal-first
jury-instruction opinion in Spisak I, which the Supreme Court reversed in Spisak III, 130
S. Ct. at 681-84. Indeed, Goff states in his brief that “the identical issue is presented
here.” Goff Br. at 19. Goff filed a pre-trial motion for a penalty-phase jury instruction
that, “in essence, . . . [the jury] need not unanimously reject the recommendation of a
death sentence before proceeding to consider the life sentences,” specifically requesting
an instruction that:

You, the jury, should first consider whether to return a verdict of
(recommend a sentence of) death.
You must unanimously agree that the aggravating circumstances are
sufficient to, and do outweigh, the mitigating circumstances in order to
return a verdict (recommendation) of death.
If you are unable to agree unanimously that a death sentence is
appropriate under this standard of proof, you are to proceed to consider
which of the life sentence verdicts (recommendations) to return.
You are not required to determine unanimously that the death sentence
is inappropriate before you consider the life sentences.

J.A. at 904-06 (Mot. for Penalty Phase Jury Instruction). Goff also requested an
additional instruction relating the lack of a unanimity requirement in finding mitigating
factors. Id. at 889-90 (Mot. to Instruct the Jury on the Lack of Requirement). The trial
court rejected both of Goff’s proposed instructions, id. at 437, 445-46 (Penalty Phase
Hr’g Tr. at 2442, 2450-51), and instructed the jury as follows:
No. 06-4669 Goff v. Bagley Page 11

In making your decision you will consider all the evidence, the
arguments of counsel, and all other information and all other reports
which are relevant to the nature and circumstances of the aggravating
circumstances or to any mitigating factors including, but not limited to,
the nature and circumstances of the offense, and 1) the history and
character and background of the Defendant, 2) the youth of the
Defendant, and 3) any other factors that are relevant to the issue of
whether the Defendant should be sentenced to death.
You are to weigh the aggravating circumstances which you have
already found against any mitigating factors which you find to exist.
You are limited in your consideration solely to your findings in Count 1
and Count 2 relating to the death of Myrtle Rutledge and those
aggravating circumstances which you have found to exist.
[Explaining findings related to Count 1 and Count 2] . . . .
Mitigating factors must be considered collectively when they are
weighed against the aggravating circumstances. The Prosecution has the
burden to prove beyond a reasonable doubt that the aggravating
circumstance[s], of which the Defendant was found guilty, outweigh the
factors in mitigation of imposing the death sentence. To outweigh means
to weigh more than or to be more important than. The existence of
mitigating factors does not preclude or prevent the death sentence, if you
find beyond a reasonable doubt that the aggravating circumstances
outweigh the mitigating factors. However, if you are not convinced by
proof beyond a reasonable doubt that the aggravating circumstances
outweigh the mitigating factors, then you must choose one of the two life
sentences.
You shall recommend death only if you unanimously find by
proof beyond a reasonable doubt that the aggravating circumstances
outweigh the mitigating factors. [I]f you do not so find, you shall
unanimously sign a verdict for either a sentence of life with parole
eligibility after serving 20 years of imprisonment or a sentence of life
with parole eligibility after serving 30 full years of imprisonment.
Verdict forms with these three options will be furnished to you.

Id. at 710-12 (Penalty Phase Hr’g Tr. at 2714-16). As to the verdict forms, the trial court
instructed the jury:

At this point I want to make a few comments with regard to the
verdict forms. You will have you in the Court [sic] six verdict forms.
They read as follows, “In the Court of Common Pleas, Clinton County,
Ohio,” they will have the same heading, “State of Ohio v. James Goff,
Case No. 95 5 008, Verdict, Recommendation of Death,” and then there
No. 06-4669 Goff v. Bagley Page 12

is a recitation of the specification to Count 1, and it says, “We, the Jury,
being duly impaneled, do hereby find beyond a reasonable doubt that the
aggravating circumstance outweighs the mitigating factors and
recommend to the Court the imposition of the death penalty.” If this is
your verdict form you would date it and sign it on one of the lines
provided.
The next one also refers to Count 1, same heading, but it reads,
“We, the Jury being duly impaneled, do not find beyond a reasonable
doubt that the aggravating circumstance outweighs the mitigating factors
and recommend to the Court that the Defendant receive life
imprisonment with parole eligibility after serving 30 full years.” If this
is your verdict, then you would date it and you would sign it.
The next one has the same heading, “Specification to Count 1,
Verdict, Life Imprisonment after 20 full years.” It reads, “We the Jury
being duly impaneled do not find beyond a reasonable doubt that the
aggravating circumstance outweighs the mitigating factors and
recommend to the Court that the Defendant receive life imprisonment
with parole eligibility after serving 20 full years.” Again, if this is your
verdict form then you would date it and each of you would sign it.
Those are the verdict forms with regard to Count -- the
specification to Count 1. The same three verdict forms exist for
specification to Count 2. Again, the “Specification to Count 2” is listed
at the top of the page. It says -- you would have three forms, “Verdict,
Life Imprisonment After 20 Full Years;[”] [“]Verdict, Life Imprisonment
After 30 Full Years;” and “Verdict, Recommendation of Death.”
Each verdict form, if that is your verdict, then you would date it
and you would sign it. If it’s the verdict for Recommendation of Death,
if that’s your verdict form, each of you must date it and sign it. If it’s
Life Imprisonment After 30 Full Years, you would date it and sign it, and
if it’s Life Imprisonment After 20 Full Years, then you would date it and
you would sign it.
....
. . . When all 12 of you agree on a verdict, all of you should sign
the appropriate form in ink, as I’ve already indicated to you, and advise
the Bailiff and you will then be returned to the Courtroom.

Id. at 717-19 (Penalty Phase Hr’g Tr. at 2721-23) (first alteration in original).

On appeal, Goff presents a single argument that the trial court impermissibly
utilized an acquittal-first jury instruction coupled with an instruction requiring unanimity
No. 06-4669 Goff v. Bagley Page 13

in finding mitigation factors, and that these instructions were unconstitutional under
Spisak I. The Ohio Supreme Court rejected both the acquittal-first and mitigation-
unanimity arguments on direct appeal, specifically finding that the instructions were not
invalid under State v. Brooks, 661 N.E.2d 1030, 1040-42 (Ohio 1996), even though Goff
was tried six months before the Brooks decision, and that “[t]he jury was never told that
it had to make a unanimous finding on the individual factors before weighing them.”
Goff I, 694 N.E.2d at 921-22. The Ohio Supreme Court concluded that “the ‘substance’
of what the jury must determine was included in the charge given; therefore, [Goff] was
not prejudiced.” Id. at 922. The district court also rejected Goff’s arguments, finding
that the instructions did not violate the Supreme Court’s opinions in Mills v. Maryland,
486 U.S. 367 (1988), and McKoy v. North Carolina, 494 U.S. 433 (1990), and that this
court’s prior decision in Davis v. Mitchell, 318 F.3d 682 (6th Cir. 2003), while not a
Supreme Court precedent, was also distinguishable. Goff IV, 2006 WL 3590369, at *6-
10.

Because we are constrained by Spisak III, we agree with the district court. We
conclude that the jury instructions and verdict forms that Goff’s trial court utilized are
conceptually indistinguishable from those at issue in Spisak III, see Spisak III, 130 S. Ct.
at 682-84; Spisak I, 465 F.3d at 708-11, as Goff acknowledges in his brief. See Goff Br.
at 19 (“Spisak is significant since the identical issue is presented here.”). Therefore, we
are constrained to follow the Spisak III Court’s reasoning and to conclude that the jury
instructions properly “focused only on the overall balancing question[,] [a]nd the
instructions repeatedly told the jury to conside[r] all of the relevant evidence.” Spisak
III, 130 S. Ct. at 684 (third alteration in original); see also Hartman v. Bagley, 492 F.3d
347, 362-65 (6th Cir. 2007) (distinguishing case from Davis and Spisak I), cert. denied,
128 S. Ct. 2971 (2008). Goff is not entitled to relief on this claim.

Although a challenge to the jury instructions based on the perceived requirement
“‘to unanimously reject a death sentence before considering other sentencing
alternatives’” might still be available on AEDPA habeas review after the Court’s opinion
No. 06-4669 Goff v. Bagley Page 14

in Spisak III,3 see Spisak III, 130 S. Ct. at 684 (quoting Spisak I, 465 F.3d at 709); id. at
688-91 (Stevens, J., concurring), neither Goff nor any previous court below “referred to
Beck v. Alabama, 447 U.S. 625 (1980), or identified any other precedent from th[e
Supreme] Court setting forth this rule,” and the Court “ha[s] not, however, previously
held jury instructions unconstitutional for this reason,”4 id. at 684 (majority opinion).
Thus, this court need not decide whether any further arguments on this ground could
invalidate Goff’s jury instructions. See United States v. Hall, 549 F.3d 1033, 1042 (6th
Cir. 2008).

2. Refusal to Instruct Jury on Meaning of Mitigating Factors

In assignment of error two, Goff argues that the trial court committed a
constitutional error in refusing to instruct the jury on the meaning of mitigating factors
because the instruction given provided “no standard upon which to base their decision”
and “le[ft] the jury with the impression that they [we]re to consider mitigation as
lessening blame or culpability.” Goff. Br. at 26. Goff requested the following
instruction:

Mitigating factors are factors that, while they do not justify or excuse the
crime, nevertheless in fairness, sympathy and mercy, may be considered
by you, as they call for a penalty less than death, or lessen the
appropriateness of a sentence of death.

3
Goff also relies on this court’s prior opinion in Davis, as did the Spisak I panel, for this
proposition. See Spisak III, 130 S. Ct. at 689 (Stevens, J., concurring) (noting the Spisak I panel relied on
Davis for its erroneous conclusion that Mills clearly established that an acquittal-first instruction is
unconstitutional). Although the trial court’s unanimity instruction here, given after the instructions related
to the verdict forms, J.A. at 719 (Penalty Phase Hr’g Tr. at 2723), does somewhat resemble the unanimity
instruction rejected in Davis, 318 F.3d at 684, we conclude that any such argument relying on Mills is now
foreclosed under Spisak III, and we further note that the instructions and verdict forms at issue here are
distinguishable from those in Davis, see Davis, 318 F.3d at 689-90; see also Hartman, 492 F.3d at 362-65.
Additionally, we note that the Davis opinion was not decided until 2003, almost ten years after Goff’s trial.
See Davie v. Mitchell, 547 F.3d 297, 313-15 (6th Cir. 2008) (pre-Spisak III case rejecting petitioner’s
ability to rely on the Davis court’s Mills argument for alleged acquittal-first instruction because not clearly
established), cert. denied, 130 S. Ct. 503 (2009).
4
Both the Spisak III majority opinion and Justice Stevens’s concurring opinion held “that Mills
does not clearly establish that the [acquittal-first jury] instructions at issue were unconstitutional.” Spisak
III, 130 S. Ct. at 689 (Stevens, J., concurring) (citing Davis, 318 F.3d at 689, as the source of the Spisak
I court’s reliance on Mills).
No. 06-4669 Goff v. Bagley Page 15

J.A. at 896-98 (Mot. to Alter Definition of Mitigating Circumstances). The trial court
rejected Goff’s alternative instruction, id. at 441-42 (Penalty Phase Hr’g Tr. at 2446-47),
and instructed the jury according to OHIO REV. CODE § 2929.04(B)-(C)5 as follows:

In making your decision you will consider all the evidence, the
arguments of counsel, and all other information and all other reports
which are relevant to the nature and circumstances of the aggravating
circumstances or to any mitigating factors including, but not limited to,
the nature and circumstances of the offense, and 1) the history and
character and background of the Defendant, 2) the youth of the
Defendant, and 3) any other factors that are relevant to the issue of
whether the Defendant should be sentenced to death.
You are to weigh the aggravating circumstances which you have
already found against any mitigating factors which you find to exist. . . .
....
Mitigating factors must be considered collectively when they are
weighed against the aggravating circumstances. The Prosecution has the

5
OHIO REV. CODE § 2929.04(B)-(C) provides:
(B) If one or more of the aggravating circumstances listed in division (A) of this
section is specified in the indictment or count in the indictment and proved
beyond a reasonable doubt . . . , the court, trial jury, or panel of three judges shall
consider, and weigh against the aggravating circumstances proved beyond a
reasonable doubt, the nature and circumstances of the offense, the history,
character, and background of the offender, and all of the following factors:
(1) Whether the victim of the offense induced or facilitated it;
(2) Whether it is unlikely that the offense would have been committed,
but for the fact that the offender was under duress, coercion, or
strong provocation;
(3) Whether, at the time of committing the offense, the offender,
because of a mental disease or defect, lacked substantial capacity to
appreciate the criminality of the offender’s conduct or to conform
the offender’s conduct to the requirements of the law;
(4) The youth of the offender;
(5) The offender’s lack of a significant history of prior criminal
convictions and delinquency adjudications;
(6) If the offender was a participant in the offense but not the principal
offender, the degree of the offender’s participation in the offense
and the degree of the offender’s participation in the acts that led to
the death of the victim;
(7) Any other factors that are relevant to the issue of whether the
offender should be sentenced to death.
(C) The defendant shall be given great latitude in the presentation of evidence of the
factors listed in division (B) of this section and of any other factors in mitigation
of the imposition of the sentence of death.
The existence of any of the mitigating factors listed in division (B) of this
section does not preclude the imposition of a sentence of death on the offender
but shall be weighed pursuant to divisions (D)(2) and (3) of section 2929.03 of
the Revised Code by the trial court, trial jury, or the panel of three judges against
the aggravating circumstances the offender was found guilty of committing.
Amendments to the language of § 2929.04 since Goff’s trial are not relevant here.
No. 06-4669 Goff v. Bagley Page 16

burden to prove beyond a reasonable doubt that the aggravating
circumstance[s], of which the Defendant was found guilty, outweigh the
factors in mitigation of imposing the death sentence. To outweigh means
to weigh more than or to be more important than. The existence of
mitigating factors does not preclude or prevent the death sentence, if you
find beyond a reasonable doubt that the aggravating circumstances
outweigh the mitigating factors. However, if you are not convinced by
proof beyond a reasonable doubt that the aggravating circumstances
outweigh the mitigating factors, then you must choose one of the two life
sentences.

J.A. at 710-12 (Penalty Phase Hr’g Tr. at 2714-16) (emphases added).

The Ohio Supreme Court rejected Goff’s argument on direct appeal, concluding
that a failure to define “mitigation” was not prejudicial error because “[t]he trial court
defined what factors the jury was to consider, and implicit in the trial court’s instruction
was that the factors set forth by the defense were factors relevant to whether appellant
should be sentenced to death.” Goff I, 694 N.E.2d at 922; id. at 923 (citing Buchanan
v. Angelone, 522 U.S. 269 (1998)). The district court also rejected Goff’s argument on
the grounds that the instruction given did not violate state law and that the Constitution
did not require the requested mitigation definition. Goff IV, 2006 WL 3590369, at *11-
12. We agree.

“The Eighth Amendment requires that the jury be able to consider and give effect
to all relevant mitigating evidence offered by petitioner.” Boyde v. California, 494 U.S.
370, 377-78 (1990); Buell v. Mitchell, 274 F.3d 337, 353 (6th Cir. 2001). Because the
Supreme Court has held that “the state may shape and structure the jury’s consideration
of mitigation so long as it does not preclude the jury from giving effect to any relevant
mitigating evidence,” Buchanan, 522 U.S. at 276 (citing Johnson v. Texas, 509 U.S. 350,
362 (1993); Penry v. Lynaugh, 492 U.S. 302, 326 (1989); Franklin v. Lynaugh, 487 U.S.
164, 181 (1988)), the issue is “whether there is a reasonable likelihood that the jury has
applied the challenged instruction in a way that prevents the consideration of
constitutionally relevant evidence,” Boyde, 494 U.S. at 380. “Any barrier to such
consideration [of mitigating evidence] must fail.” McKoy, 494 U.S. at 371. However,
“‘[o]n habeas review, errors on instructions are not reviewable unless they deprive a
No. 06-4669 Goff v. Bagley Page 17

defendant of constitutional due process.’” Mason v. Mitchell, 320 F.3d 604, 638 (6th
Cir. 2003) (quoting Gall v. Parker, 231 F.3d 265, 321 (6th Cir. 2000)).

In Buchanan, the Supreme Court explicitly stated that “we have never gone
further and held that the state must affirmatively structure in a particular way the manner
in which juries consider mitigating evidence.” Buchanan, 522 U.S. at 276. The Court
rejected the defendant’s argument that the trial court should have included additional
explanations with the state’s pattern instruction, specifically a further explanation of the
concept of mitigation stating, “‘[i]n addition to the mitigating factors specified in other
instructions, you shall consider the circumstances surrounding the offense, the history
and background of [the defendant,] and any other facts in mitigation of the offense.’”
Id. at 273 (first alteration in original). The Court held that a specific instruction “on the
concept of mitigating evidence generally” is not constitutionally required. Id. at 270,
279. Here, as the Ohio Supreme Court concluded, the trial court’s instruction essentially
tracked the language of the state-law jury instruction, which itself provided more general
information on the concept of mitigation than the challenged “all the evidence”
instruction upheld in Buchanan.6 See State v. Holloway, 527 N.E.2d 831, 834-36 (Ohio
1988) (looking to § 2929.04(B)(7) for proper definition of mitigating factors and finding
trial court’s use of different definition in subsequent written opinion was harmless error
in part because jury was given proper § 2929.04(B) instruction at time). “Where the trial
court instructs the jury in accordance with state law and sufficiently addresses the
matters of law at issue, no error results and the petitioner is not entitled to habeas relief.”
White v. Mitchell, 431 F.3d 517, 534 (6th Cir. 2005).

Contrary to Goff’s assertion, we conclude that the instruction given, considered
in the context of the entire instructions and proceedings, see Boyde, 494 U.S. at 377-78,
380-84, did not fail to provide the jury with a “standard upon which to base their
decision” or “leave[] the jury with the impression that they [we]re to consider mitigation
as lessening blame or culpability,” Goff. Br. at 26, rather than as relevant to lessen the

6
Although Buchanan was decided after Goff’s conviction and thus is not controlling precedent
under AEDPA, see Mason, 320 F.3d at 638 n.19, the case is instructive because the Court therein relied
on its precedents that were in effect at the time of Goff’s conviction, see Buchanan, 522 U.S. at 275-78.
No. 06-4669 Goff v. Bagley Page 18

sentence imposed. Neither the use of the instruction given nor the failure to use the
proposed instruction violated clearly established federal law under either the Eighth
Amendment or the Due Process Clause. See Spisak III, 130 S. Ct. at 683 (finding similar
instructions sufficiently “explained the concept of a ‘mitigating factor’”); Mason, 320
F.3d at 638-39 (holding that Supreme Court precedent prior to 1994 conviction “did not
clearly establish a defendant’s due process right to a jury instruction on the definition
of mitigation” and rejecting exact same argument); Buell, 274 F.3d at 353 (upholding
similar, but more limited, instruction against challenge that mitigating factors were not
appropriately defined). Goff is not entitled to relief on this claim.

C. Ineffective Assistance of Appellate Counsel

On the first appeal of right, a defendant is entitled to effective assistance of
appellate counsel. Mahdi v. Bagley, 522 F.3d 631, 636 (6th Cir. 2008), cert. denied, 129
S. Ct. 1986 (2009). As we have previously stated,

[c]laims of ineffective assistance of [appellate] counsel are judged under
the Strickland standard, which requires that the appellant affirmatively
establish (1) that counsel’s performance was objectively deficient; and
(2) prejudice, which means that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would
have been different.

Id. (internal quotation marks omitted); Mason v. Mitchell, 543 F.3d 766, 772 (6th Cir.
2008) (“Claims of ineffective assistance of counsel have ‘two components: A petitioner
must show that counsel’s performance was deficient, and that the deficiency prejudiced
the defense.’” (quoting Wiggins v. Smith, 539 U.S. 510, 521 (2003))), cert. denied, 130
S. Ct. 492 (2009). “To establish that counsel was deficient, ‘the defendant must show
that counsel’s representation fell below an objective standard of reasonableness.’”
Smith, 567 F.3d at 257 (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)).
Prejudice is shown if “there is ‘a reasonable probability that, but for his counsel’s
[failings] . . . , [the defendant] would have prevailed on his appeal.’” Mapes v. Tate
(Mapes II), 388 F.3d 187, 194 (6th Cir. 2004) (alterations in original) (quoting Smith v.
Robbins, 528 U.S. 259, 285 (2000)).
No. 06-4669 Goff v. Bagley Page 19

In his ninth assignment of error, Goff contends that he received ineffective
assistance of appellate counsel due to appellate counsel’s failure to raise the following
issues on direct appeal: (1) the trial court’s failure to afford Goff his right to allocution;
(2) trial counsel’s failure to recognize that the alternate juror substituted midstream
during the penalty-phase hearing tainted that hearing; (3) trial counsel’s failure to
recognized the need for a principal-offender instruction during the penalty phase;
(4) trial counsel’s failure to request that the trial court give a jury instruction regarding
the credibility of informants/accomplices; (5) ineffective assistance of trial counsel for
informing the jury during voir dire that Goff would not testify at trial; (6) trial counsel’s
failure properly to prepare the psychologist who testified at the penalty-phase hearing;
(7) trial counsel’s failure to exclude reference to Goff’s request for an attorney during
the guilt phase; and (8) trial counsel’s failure to raise an actual-conflict issue. None of
these claims are specifically argued under this assignment of error; rather, five of the
arguments are presented in conjunction with other assignments of error. The three
arguments not so presented—arguments six, seven, and eight—are waived on appeal.
See United States v. Hall, 549 F.3d 1033, 1042 (6th Cir. 2008) (“‘[I]ssues adverted to
in a perfunctory manner, unaccompanied by some effort at developed argumentation, are
deemed waived.’” (quoting United States v. Johnson, 440 F.3d 832, 846 (6th Cir. 2006))
(alteration in original)).7 Each of the remaining arguments are addressed below.

7
Even if these arguments were not waived, we would conclude that they are meritless. First,
Goff’s claim that trial counsel did not properly prepare the psychologist, Dr. Jeffery Smalldon, is belied
by the record. Review of the penalty-phase transcript reveals that Dr. Smalldon was competent and
prepared, testifying extensively about both meetings that he had with Goff and Goff’s family and about
his findings. J.A. at 572-622 (Penalty Phase Hr’g Tr. at 2577-627). Second, although it is true that, during
the guilt phase, the prosecutor elicited from two police officers the fact that Goff had requested an attorney,
Goff cannot show that he was prejudiced by appellate counsel’s failure to raise this issue—there is no
evidence that there was any likelihood that Goff’s appeal would have ended differently had his appellate
counsel raised this issue. Lastly, the record reveals that no actual conflict of interest was present in Goff’s
case. One of the prosecutors directly involved in Goff’s prosecution, as well as two other prosecutors not
directly involved with the case, had previously served as Goff’s guardian ad litem. This fact was discussed
thoroughly by the defense, the prosecution, and the court when it was brought to the court’s attention.
Through this conversation, it became clear, as the district court noted, that “none of the prosecutors had
learned any information while representing petitioner as guardians ad litem that they could have used
against him, or otherwise put to improper use, in prosecuting him for the aggravated murder of Myrtle
Rutledge.” Goff IV, 2006 WL 3590369, at *35 (citing Penalty Phase Hr’g Tr. at 2461, 2466-67 (J.A. at
456, 461-62)). Thus, there was no actual conflict of interest requiring recusal.
No. 06-4669 Goff v. Bagley Page 20

1. Right to Allocution

In his ninth and twelfth assignments of error, Goff contends that he received
ineffective assistance of appellate counsel because his appellate counsel did not raise the
failure of the trial court to afford Goff his right to allocute before sentencing. Bagley
contends that this claim is procedurally defaulted8 and that, on the merits, this claim fails
because (1) there is no constitutional right to allocution, and (2) Goff chose not to make
an unsworn statement to the jury during the penalty phase, which allegedly discharged
the trial court’s duty with regard to allocution. We disagree with Bagley’s contentions
and conclude that Goff is entitled to relief on this ground.

Bagley’s contention that Goff’s claim must fail because there is no constitutional
right to allocution misconstrues the effective-assistance framework. Although it is
correct, as the district court noted, that “there is no right to allocution under the federal
constitution,” Goff IV, 2006 WL 3590369, at *33 (citing, inter alia, Cooey v. Coyle, 289
F.3d 882, 912 (6th Cir. 2002)), there is a constitutional right to the effective assistance
of appellate counsel, see, e.g., Mahdi, 522 F.3d at 636. If it was both deficient and
prejudicial for Goff’s appellate counsel to fail to raise the allocution claim, then Goff’s
constitutional right to the effective assistance of counsel on appeal has been violated,
regardless of the fact that counsel’s underlying failure is a matter of state law. See
Mason v. Hanks, 97 F.3d 887, 892-94 (7th Cir. 1996) (concluding that the fact that an
ineffective-assistance-of-appellate-counsel claim is based on a failure to pursue certain
state-law claims “poses no impediment to [a petitioner’s] claim of ineffectiveness”);
Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984) (“On the one hand, the issue

8
As to Bagley’s procedural-default argument, although Goff did not raise this issue on direct
appeal, he did raise it in his Ohio Rule of Appellate Procedure 26(B) motion. The Ohio Supreme Court
rejected the claim on the merits, concluding that “Goff ha[d] failed to raise ‘a genuine issue as to whether
[he] was deprived of the effective assistance of counsel on appeal’ before the court of appeals, as required
by App.R. 26(B)(5).” Goff III, 784 N.E.2d at 701 (second alteration in original). Thus, this claim is not
defaulted for purposes of habeas review. Haliym v. Mitchell, 492 F.3d 680, 688–93 (6th Cir. 2007)
(concluding procedural default did not apply, despite untimely Ohio Rule of Appellate Procedure 26(B)
motion, because “an Ohio court’s finding that there is ‘no genuine issue,’ which denies the Murnahan
[Rule 26(B)] application at stage one of the two stage procedure, is a determination on the merits for the
purpose of excusing procedural default”); James v. Brigano, 470 F.3d 636, 640-42 (6th Cir. 2006) (holding
that a claim was not procedurally defaulted when a defendant raised the claim in an Ohio Rule of Appellate
Procedure 26 motion and the Ohio Court of Appeals rejected the claim on the merits).
No. 06-4669 Goff v. Bagley Page 21

of ineffective assistance—even when based on the failure of counsel to raise a state law
claim—is one of constitutional dimension . . . . On the other hand, the validity of the
claim that Alvord’s appellate counsel failed to assert is clearly a question of state law,
and we must defer to the state’s construction of its own law.” (citations omitted)),
superseded by statute on other grounds; see also Bedford v. Collins, 567 F.3d 225, 237
(6th Cir. 2009) (“[T]he invocation of this state-law right [to allocution] could implicate
the Sixth Amendment if the prosecution violated state-law rules about the allocution
procedure and defendant’s counsel unreasonably failed to object.”), petition for cert.
filed (U.S. Jan. 15, 2010) (No. 09-8671); Reutter v. Sec’y for Dep’t of Corr., 232 F.
App’x 914, 915 (11th Cir.) (unpublished opinion) (“Even though [petitioner]’s
ineffective-assistance-of-appellate-counsel claim was based on counsel’s failure to raise
a state-law issue, . . . the ineffective-assistance claim itself was a federal constitutional
claim.” (citing Alvord, 725 F.2d at 1291)), cert. denied, 552 U.S. 956 (2007); cf. Mapes
v. Coyle, 171 F.3d 408, 427-28 (6th Cir. 1999) (citing Mason v. Hanks, 97 F.3d at 893-
94); Lewis v. Smith, 100 F. App’x 351, 356 (6th Cir.) (same), cert. denied, 543 U.S. 877
(2004). We conclude that counsel’s performance was both deficient and prejudicial.

Ohio law provides all criminal defendants with the right to allocution before a
sentence is imposed. OHIO CRIM. R. 32(A)(1) (“At the time of imposing sentence, the
court shall . . . address the defendant personally and ask if he or she wishes to make a
statement in his or her own behalf or present any information in mitigation of
punishment.”)9; State v. Campbell, 738 N.E.2d 1178, 1188 (Ohio 2000). It is the duty
of the sentencing court to inform the defendant of this right to allocution, and failure to
do so is typically reversible error. See Campbell, 738 N.E.2d at 1190. At the time of
Goff’s sentencing, there was a substantial amount of caselaw confirming this fact. See,
e.g., Silsby v. State, 164 N.E. 232 (Ohio 1928) (holding that an Ohio statute “impose[s]
a mandatory duty upon a trial judge to ask an accused person whether he has anything

9
Ohio Rule of Criminal Procedure 32 was amended in 1998; however, the pre-1998 version, in
effect at the time of Goff’s sentencing, did not differ materially from the current version. See OHIO CRIM.
R. 32(A)(1) (1993) (amended 1998) (“Before imposing sentence the court . . . shall address the defendant
personally and ask if he or she wishes to make a statement in his or her own behalf or present any
information in mitigation of punishment.”).
No. 06-4669 Goff v. Bagley Page 22

to say why judgment should not be pronounced against him” and that failure to discharge
that duty requires reversal and remand for resentencing (syllabus)); State v. Hays, 442
N.E.2d 127, 129 (Ohio Ct. App. 1982) (noting that OHIO CRIM. R. 32(A)(1) “require[s]
that the accused be granted an opportunity to be heard in mitigation of punishment”
(citing Silsby, 164 N.E. 232)); see also City of Defiance v. Cannon, 592 N.E.2d 884, 888
(Ohio Ct. App. 1990) (stating that OHIO CRIM. R. 32(A)(1) and OHIO REV. CODE
§ 2947.0510 both “clearly mandate[] that a court give . . . the defendant an opportunity
to speak prior to the imposition of sentence,” and that the trial court’s failure to ask the
defendant if he or she wishes to allocute requires “remand[] for the sole purpose of
resentencing” (citing, inter alia, Silsby, 164 N.E. 232)); accord State v. Hawkins, No.
65344, 1994 WL 505279, at *2 (Ohio Ct. App. Sept. 15, 1994) (unpublished opinion)
(same); City of Cleveland v. Justice, Nos. 56883, 56884, 1990 WL 43676, at *5 (Ohio
Ct. App. Apr. 12, 1990) (unpublished opinion) (same); State v. Priest, No. 86 CA 29,
1987 WL 10638, at *1 (Ohio Ct. App. Apr. 28, 1987) (unpublished opinion) (same);
State v. Sullivan, No. E-80-54, 1981 WL 5643, at *3 (Ohio Ct. App. June 12, 1981)
(unpublished decision) (same).

In the instant case, there is no evidence in the record that the state trial court
(common pleas court) ever addressed Goff’s right to allocution. Under Ohio law at the
time of Goff’s direct appeal, this omission was reversible error. Failure on the part of
Goff’s appellate counsel to raise such an obviously winning claim clearly falls below an
objective standard of reasonableness—deficiency is established by the fact that appellate
counsel failed to raise the allocution issue on appeal in the face of overwhelming

10
OHIO REV. CODE § 2947.05 was repealed on July 1, 1996. Prior to that date, § 2947.05 stated,
in relevant part:
Before sentence is pronounced, the court shall inform the defendant of the verdict of the
jury or of the finding of the court and shall ask the defendant whether he has anything
to say as to why judgment should not be pronounced against him.
OHIO REV. CODE ANN. § 2947.05 (repealed 1996). Goff was sentenced in August 1995; thus, § 2947.05
would have applied to Goff’s sentencing. The state courts’ application of § 2947.05 was firmly established
at the time of Goff’s sentencing. See, e.g., City of Columbus v. Herrell, 247 N.E.2d 770, 774 (Ohio Ct.
App. 1969) (holding that a trial court’s failure to comply with § 2947.05 required a remand for
resentencing, consistent with Silsby, 164 N.E. 232); City of Columbus v. Shuffelt, 159 N.E.2d 238, 239
(Ohio Ct. App. 1958) (same); State v. Ausberry, 82 N.E.2d 751, 751–52 (Ohio Ct. App. 1948) (same); see
also State v. Baker, 177 N.E.2d 348, 352 (Ohio Ct. App. 1960) (granting motion for leave to appeal to
allow the defendant to raise on appeal the trial court’s failure to comply with § 2947.05).
No. 06-4669 Goff v. Bagley Page 23

caselaw regarding the right to allocute. Moreover, this same caselaw holds that a
sentencing court’s failure to provide the right to allocution requires a remand for
resentencing, thereby establishing prejudice. See Mapes II, 388 F.3d at 194 (explaining
that prejudice exists if there is a reasonable probability that the appeal would have been
successful had the claim been raised). Thus, we conclude that there is a reasonable
probability that, but for appellate counsel’s unprofessional errors, the result of Goff’s
direct appeal would have been different. The Ohio Supreme Court’s conclusion that
Goff failed to raise a genuine issue of material fact regarding ineffective assistance of
appellate counsel constitutes an unreasonable application of Supreme Court precedent.

Bagley contends that Goff decided not to give an unsworn statement and that this
decision waived his right to allocution. This argument is meritless. In addition to the
right to allocution before the court imposes sentence discussed above, capital defendants
in Ohio also have the right to make an unsworn statement at the penalty phase. OHIO
REV. CODE ANN. § 2929.03(D)(1) (“The court, and the trial jury if the offender was tried
by a jury, . . . shall hear the statement, if any, of the offender, and the arguments, if any,
of counsel for the defense and prosecution, that are relevant to the penalty that should
be imposed on the offender. . . . If the offender chooses to make a statement, the offender
is subject to cross-examination only if the offender consents to make the statement under
oath or affirmation.”)11; see also Campbell, 738 N.E.2d at 1190. Although “[§]
2929.03(D)(1) permits a capital defendant to make a penalty-phase statement without
oath or cross-examination . . . [,] an unsworn statement under [§] 2929.03(D)(1) is not
an allocution under the rule [OHIO CRIM. R. 32(A)(1)].” Campbell, 738 N.E.2d at 1190
(emphasis added) (citing State v. Reynolds, 687 N.E.2d 1358, 1372 (Ohio 1998)). “The
penalty phase in a capital case is not a substitute for a defendant’s right of allocution [at
sentencing].” Reynolds, 687 N.E.2d at 1372. The right to allocution is associated with
the sentencing proceeding before the judge, and “[t]he purpose of allocution is to allow
the defendant an additional opportunity to state any further information which the judge
may take into consideration when determining the sentence to be imposed.” Cannon,

11
OHIO REV. CODE § 2929.03 has been amended several times since Goff’s sentencing; however,
the pertinent language of (D)(1) remains unaltered.
No. 06-4669 Goff v. Bagley Page 24

592 N.E.2d at 888. Moreover, “[n]o authority requires a trial court to inform a capital
defendant of his right to make an unsworn, penalty-phase statement.” Campbell,
738 N.E.2d at 1190.

Bagley correctly notes that the penalty-phase transcript reflects that a conference
occurred wherein the parties were slated to discuss Goff’s “rights relative to giving [an]
unsworn statement.” J.A. at 663 (Penalty Phase Hr’g Tr. at 2668). The contents of that
conference reveal that Goff’s trial counsel had advised him of his right to make an
unsworn statement to the jury, and that Goff declined to so address the jury.12 Contrary
to Bagley’s contention, at the conference the trial judge did not inform Goff of his right
to give an unsworn statement; only Goff’s counsel addressed him at the conference,
although Goff did waive his right to make an unsworn statement on the record. Even if
the trial judge had been the one to address Goff relative to making an unsworn statement,
the right to make an unsworn statement to the jury at the penalty phase is not equivalent
to the right of allocution before the judge imposes sentence. Campbell, 738 N.E.2d at
1190; Cannon, 592 N.E.2d at 888. Thus, even if the sentencing court informed Goff of
his right to give an unsworn statement to the jury at the penalty phase, such information
could not discharge the sentencing court’s duty to inform Goff about his right to
allocution before sentencing by the judge, and any wavier by Goff of his right to give
an unsworn statement to the jury would not have impacted his right to allocute. See
Campbell, 738 N.E.2d at 1188-90 (“[I]n this context [where the trial court failed to
inform the defendant of the right to allocution], we find the doctrine of waiver
inapplicable.”). Accepting Bagley’s contention—“that Goff chose not to make an
unsworn statement to the jury,” Bagley Br. at 74—we nevertheless conclude that the trial
court failed in its duty to inform Goff of his right to allocute before sentencing by the
judge.

Accordingly, we hold that Goff’s appellate counsel was ineffective for failing to
raise on direct appeal the issue of Goff’s right to allocution before sentencing and that

12
From the parties’ briefing and arguments on appeal, we were advised that this conference was
sealed. However, the state court had granted the parties’ joint motion to unseal this portion of the
transcript, and we have obtained and reviewed the three transcript pages at issue.
No. 06-4669 Goff v. Bagley Page 25

the opposite conclusion reached by the Ohio Supreme Court in rejecting Goff’s Ohio
Rule of Appellate Procedure 26(B) application on the merits constitutes an unreasonable
application of federal law.

2. Substitution of Alternate Juror During Penalty Phase

In his ninth and fourteenth assignments of error, Goff asserts that trial counsel
caused a constitutional, structural error when it allowed an alternate juror, who did not
deliberate with the jury during the guilt phase, to take the place of a sitting juror during
the penalty phase and that appellate counsel was ineffective for failing to raise this issue
on direct appeal. Goff presented this claim in an Ohio Rule of Appellate Procedure
26(B) motion to reopen his direct appeal, claiming that ineffective assistance of appellate
counsel established cause and prejudice for failing to raise the issue on direct appeal.13
The Ohio Court of Appeals denied the motion and the Ohio Supreme Court affirmed this
denial, concluding that “Goff . . . failed to raise a genuine issue as to whether [he] was
deprived of the effective assistance of counsel on appeal before the court of appeals, as
required by App.R. 26(B)(5).” Goff III, 784 N.E.2d at 701 (internal quotation marks
omitted) (alteration in original). The district court rejected Goff’s underlying claim of
trial-counsel error as procedurally defaulted because Goff did not establish that his
appellate counsel was ineffective and thus could not establish cause and prejudice for
his failure to raise the underlying claim on direct appeal. Goff IV, 2006 WL 3590369,
at *29-30. We also reject Goff’s claim.

As an initial matter, Goff has cited no caselaw to support his argument that the
substitution of an alternate juror—who was present for both the guilt-phase and penalty-
phase hearings but did not participate in the guilt-phase deliberation—for a sitting juror
before the commencement of penalty-phase deliberations is a constitutional violation,
nor could we find any. Moreover, Goff’s repeated assertion that the substitution of the

13
Ohio Rule of Appellate Procedure 26(B) “governs applications by a criminal defendant to
reopen an appeal ‘based on a claim of ineffective assistance of appellate counsel.’” James, 470 F.3d at
640 (quoting OHIO APP. R. 26(B)(1)). The Ohio courts should grant an Ohio Rule of Appellate Procedure
26(B) motion “‘if there is a genuine issue as to whether the applicant was deprived of the effective
assistance of counsel on appeal.’” Id. (quoting OHIO APP. R. 26(B)(5)).
No. 06-4669 Goff v. Bagley Page 26

juror caused Goff not to be convicted by a unanimous jury is also unsupported by
caselaw and defies common sense. A unanimous jury convicted Goff at the end of the
guilt-phase proceedings; no later change in the make-up of the jury could alter that fact.
Thus, Goff has not established that the substitution of the alternate juror, in and of itself,
caused a constitutional violation.

As to Goff’s ineffective-assistance-of-appellate counsel claim, at the time of
Goff’s direct appeal, the Ohio Supreme Court, in a case with materially indistinguishable
facts, had held that it did not violate state law to replace a sitting juror with an alternate
juror between the guilt and penalty phases. See State v. Hutton, 559 N.E.2d 432, 442-45
(Ohio 1990). Additionally, Goff has not asserted that the substitution procedure used
in his case violated state law. Thus, there seems no likelihood that, had Goff’s appellate
counsel raised this issue, the result of his appeal would have been different, and we
cannot say that Goff’s appellate counsel was ineffective for not raising a claim that had
little to no possibility of success. See Valentine v. United States, 488 F.3d 325, 338-39
(6th Cir. 2007) (rejecting a claim of ineffective assistance of appellate counsel where the
underlying claim “had little probability of success”), cert. denied, 128 S. Ct. 1311
(2008). We conclude that Goff is not entitled to relief on this claim.

3. Principal-Offender Instruction

In his ninth and fifteenth assignments of error, Goff contends that the trial court
should have instructed the jury regarding the definition of principal offender and that
appellate counsel was ineffective for failing to raise this issue on appeal. Goff raised the
underlying claim in his failed Ohio Rule of Appellate Procedure 26(B) motion. The
district court also rejected the claim. We conclude that this claim is meritless.

Goff’s argument under these assignments of error is confusing, to say the least.
It appears that Goff is asserting that, at the guilt phase and at the penalty phase, the jury
was not (1) instructed regarding the requirement that Goff be a principal offender in
order to be death eligible; (2) instructed regarding the definition of principal offender;
or (3) provided verdict sheets that reflected the principal-offender requirement. The
record reveals that Goff’s assertions are baseless.
No. 06-4669 Goff v. Bagley Page 27

According to Ohio law, “[t]o be eligible for the death penalty under R.C. [OHIO
REV. CODE §] 2929.04(A)(7) as ‘the principal offender,’ the defendant must have been
the actual killer.” State v. Taylor, 612 N.E.2d 316, 325 (Ohio 1993). In the context of
aggravated murder, principal offender has been defined as “one who personally performs
every act constituting the offense.” State v. Sneed, 584 N.E.2d 1160, 1168 (Ohio 1992)
(internal quotation marks omitted). At the guilt phase of Goff’s trial, the trial court
instructed the jury that “[b]efore you can find the Defendant Guilty of Specification No.
1 under Count 1, you must find that the State has proved beyond a reasonable doubt that
. . . the Defendant personally committed each act which constituted the aggravated
murder, including the act or acts that caused the death of Myrtle Rutledge.” J.A. at 401
(Guilt Phase Hr’g Tr. at 2380) (emphasis added). This instruction correctly defined the
term principal offender. See Sneed, 584 N.E.2d at 1168 (holding that a trial court’s
instruction defining principal offender as “one who personally performs every act
constituting the offense, in this case aggravated murder” was sufficient to comply with
OHIO REV. CODE § 2929.04(A)(7) (internal quotation marks omitted)). After receiving
this correct instruction, the jury specifically found, via a verdict form, that Goff was the
principal offender:

We, the Jury, having found the Defendant, James R. Goff, Guilty of
aggravated murder as he stands charged in Count 1 of the indictment now
further find that the aggravated murder was committed while the said
James R. Goff was committing or attempting to commit, or while fleeing
immediately after committing or attempting to commit aggravated
burglary and the offender was the principal offender in the commission
of the aggravated murder.

J.A. at 420-21 (Guilt Phase Hr’g Tr. at 2416-17) (reading of verdict form) (emphasis
added). There is simply no merit to Goff’s assertions, and Goff’s appellate counsel was
not ineffective for failing to raise such a frivolous claim on direct appeal. Goff is not
entitled to relief on this claim.
No. 06-4669 Goff v. Bagley Page 28

4. Informant/Accomplice Instruction

In Goff’s ninth and sixteenth assignments of error, Goff argues that the trial court
erred in failing to give a specific instruction to the jury regarding the credibility of
testimony by accomplices and informants and that appellate counsel was ineffective for
failing to raise this issue on direct appeal. Goff raised the underlying claim as part of his
Ohio Rule of Appellate Procedure 26(B) motion, which the Ohio courts denied. The
district court rejected this argument, and we conclude that Goff is not entitled to relief
on this claim.

We have noted that “accomplice instructions as a general matter” are not
required, and we have held that a trial court does not violate a defendant’s constitutional
rights by failing to give a specific accomplice instruction so long as the jury instructions
“‘adequately informed the jury regarding the credibility of witness testimony’” and
“‘alerted the jury to the various considerations that it should take into account in
weighing testimony.’” Scott v. Mitchell, 209 F.3d 854, 883 (6th Cir. 2000) (quoting
United States v. Carr, 5 F.3d 986, 992 (6th Cir. 1993)). In the instant case, the trial court
gave the following instruction:

You are the sole judges of the facts and the credibility of the
witnesses and the weight of the evidence. To weigh the evidence you
must consider the credibility of the witnesses. You will apply the tests
of truthfulness which you apply in your daily lives. These tests include
the appearance of each witness upon the stand, their manner of testifying,
the reasonableness of their testimony, the opportunity they had to see,
hear, and know the things concerning which they testified about, their
accuracy of memory, their frankness or lack of it, their intelligence, their
interest and bias, if any, together with all the facts and circumstances
surrounding their testimony. Applying these tests you will assign to the
testimony of each witness such weight as you deem proper.
You are not required to believe the testimony of any witness
simply because he or she was under oath. You may believe or disbelieve
all or any part of the testimony of any witness. It is your province to
determine what testimony is worthy of belief and what testimony is not
worthy of belief.
No. 06-4669 Goff v. Bagley Page 29

J.A. at 397-98 (Guilt Phase Hr’g Tr. at 2373-74) (emphases added). This instruction
both informs the jury regarding credibility and alerts the jury to what is properly
considered when determining credibility; thus it satisfies the criteria established in Scott.
Therefore, the failure to give a specific accomplice instruction did not violate Goff’s
constitutional rights.14

Moreover, Goff’s appellate counsel was not ineffective for failing to raise this
issue on direct appeal. Goff correctly points out that, under Ohio law, “[i]f an alleged
accomplice of the defendant testifies against the defendant in a case in which the
defendant is charged with . . . an offense,” the trial court is required to “state
substantially” a specific jury instruction regarding accomplice testimony:

The testimony of an accomplice does not become inadmissible because
of his complicity, moral turpitude, or self-interest, but the admitted or
claimed complicity of a witness may affect his credibility and make his
testimony subject to grave suspicion, and require that it be weighed with
great caution.
It is for you, as jurors, in the light of all the facts presented to you from
the witness stand, to evaluate such testimony and to determine its quality
and worth or its lack of quality and worth.

OHIO REV. CODE ANN. § 2923.03(D).15 However, at the time of Goff’s trial and direct
appeal, Ohio law held that this section applied only if a witness had been indicted as an
accomplice. See State v. Wickline, 552 N.E.2d 913, 918 (Ohio 1990) (defining
“accomplice” under a former version of § 2923.03(D) as a person who “at the very least

14
On Lee v. United States, 343 U.S. 747 (1952), cited by Goff in his brief, does not change our
analysis. In determining that certain testimony was not per se incompetent, the On Lee Court
acknowledged:
The trend of the law in recent years has been to turn away from rigid rules of
incompetence, in favor of admitting testimony and allowing the trier of fact to judge the
weight to be given it. . . .
The use of informers, accessories, accomplices, false friends, or any of the
other betrayals which are ‘dirty business’ may raise serious questions of credibility. To
the extent that they do, a defendant is entitled to broad latitude to probe credibility by
cross-examination and to have the issues submitted to the jury with careful instructions.
Id. at 757. This passage is not a command that a specific jury instruction be given if an accomplice or
informant testifies, but rather is an explanation of the Supreme Court’s decision to categorize matters of
credibility as questions of weight, not admissibility.
15
OHIO REV. CODE § 2923.03 has been amended since Goff’s sentencing; however, the pertinent
language of subsection (D) has remained constant.
No. 06-4669 Goff v. Bagley Page 30

. . . [was] indicted for the crime of complicity”); State v. Lordi, 748 N.E.2d 566, 572
(Ohio Ct. App. 2000) (applying the Wickline accomplice definition to a later version of
§ 2923.03(D)); State v. Royce, Nos. CA92-09-023, CA92-09-024, CA92-09-025, CA92-
09-026, 1993 WL 534691, at *4 (Ohio Ct. App. Dec. 27, 1993) (applying
§ 2923.03(D)—the version applicable during Goff’s trial and appeal—and holding that
a trial court did not err in refusing to give the accomplice instruction because the witness
“was not charged with complicity as a result of his involvement with appellants’ criminal
activities”). None of the witnesses who testified against Goff were indicted as
accomplices, and Goff points to no contrary Ohio authority to support an argument that
§ 2923.03(D) applies under such facts. Goff cannot demonstrate prejudice because he
has not shown that there is any likelihood that his appeal would have had a different
outcome had appellate counsel raised this issue. We conclude that this claim is
meritless.

5. Right to Testify

In his ninth and seventeenth assignments of error, Goff asserts that he was denied
his right to testify on his own behalf when trial counsel foreclosed his ability to testify
by informing prospective jurors at voir dire that Goff would not testify at any point
during the proceedings, and that appellate counsel was ineffective for failing to raise this
issue on direct appeal. Goff raised the underlying claim for the first time as part of his
failed Ohio Rule of Appellate Procedure 26(B) motion. The district court rejected this
claim, noting that “the trial record is devoid of any evidence that petitioner’s right to
testify was usurped against his will or in violation of his fundamental rights.” Goff IV,
2006 WL 3590369, at *27. We agree.

“The right of a defendant to testify at trial is a constitutional right of fundamental
dimension and is subject only to a knowing and voluntary waiver by the defendant”;
nevertheless, “[b]arring any statements or actions from the defendant indicating
disagreement with counsel or the desire to testify, the trial court is neither required to sua
sponte address a silent defendant and inquire whether the defendant knowingly and
intentionally waived the right to testify, nor ensure that the defendant has waived the
No. 06-4669 Goff v. Bagley Page 31

right on the record.” United States v. Webber, 208 F.3d 545, 550-51 (6th Cir. 2000).
Indeed, “when a tactical decision is made not to have the defendant testify, the
defendant’s assent is presumed,” and if a defendant disagrees with this decision, he
“must alert the trial court that he desires to testify or that there is a disagreement with
defense counsel regarding whether he should take the stand.” Id. at 551 (internal
quotation marks omitted). “When a defendant does not alert the trial court of a
disagreement, waiver of the right to testify may be inferred from the defendant’s
conduct. Waiver is presumed from the defendant’s failure to testify or notify the trial
court of the desire to do so.” Id.

As the district court correctly noted, there is no evidence that Goff ever alerted
the trial court to his desire to testify at trial. Accordingly, we will presume that Goff
waived this right, and, applying that presumption, we must conclude that Goff’s
constitutional rights were not violated by either trial counsel’s statements at voir dire or
appellate counsel’s failure to raise this issue on direct appeal. We therefore conclude
that Goff is not entitled to relief on this claim.

6. Conclusion on Claims of Ineffective Assistance of Appellate Counsel

In sum, although we reject most of Goff’s arguments regarding ineffective
assistance of appellate counsel, we conclude that Goff’s appellate counsel was
ineffective for failing to raise the issue of Goff’s right to allocution and that the opposite
conclusion reached by the Ohio Supreme Court constitutes an unreasonable application
of federal law. We grant Goff relief on this basis, the scope of which is explained below.

D. Scope of Remedy

Having concluded that Goff is entitled to relief based on appellate counsel’s
failure to raise during Goff’s direct appeal a claim based on Goff’s right to allocution
before sentencing, we now turn to the question of the proper scope of relief to accord
Goff. Mapes II is instructive on this point. In Mapes II, we concluded that the petitioner
received ineffective assistance of appellate counsel due to counsel’s failure to raise an
Eighth Amendment claim regarding the trial judge’s instruction to the jury not to
No. 06-4669 Goff v. Bagley Page 32

consider some mitigating evidence. Mapes contended that, by granting the writ based
on the Sixth Amendment violation, the court “also established that there was an Eighth
Amendment violation at sentencing,” and that this conclusion was now the law of the
case. Mapes v. Tate (Mapes II), 388 F.3d 187, 193 (6th Cir. 2004) (emphasis removed).
We rejected Mapes’s argument, noting that we were

present[ed with] a very narrow question: whether Mapes was deprived
of effective assistance of appellate counsel in violation of the Sixth
Amendment. Contrary to Mapes’s contention, determination of this issue
does not require us to decide the underlying issue whether Mapes’s
Eighth Amendment rights were violated at sentencing. As we stated
repeatedly in Mapes I, Mapes’s underlying claims were not raised on
direct appeal and are thus barred by procedural default, an adequate and
independent ground for affirming his sentence. Mapes [v. Coyle (Mapes
I)], 171 F.3d [408,] 419, 424, 427 [(6th Cir. 1999)]. We further pointed
out in Mapes I that these underlying claims are “relevant only insofar as
[they] bear[ ] on the question whether appellate counsel was
unconstitutionally ineffective in failing to raise [them].” Id. at 427.

Id. at 194 (fifth, sixth, and seventh alterations in original). We further noted that,
although it was necessary to evaluate the underlying Eighth Amendment claim when
determining if Mapes had received ineffective assistance of appellate counsel, such an
evaluation “does not require a decision on or a determination of these issues[ the
underlying claim]. All that is required is a determination that, based on the nature of the
underlying claims, there is ‘a reasonable probability that, but for his counsel’s [failings]
. . . , [the defendant] would have prevailed on his appeal.’” Id. (quoting Smith v.
Robbins, 528 U.S. 259, 285 (2000)) (first alteration added). We granted the writ
“conditioned upon Ohio courts granting a new, direct appeal,” stressing that “[t]he
[further] remedy Mapes requests goes far beyond ‘neutraliz[ing]’ the constitutional
deprivation suffered by the defendant and would, therefore, contravene the rule
announced in Magana v. Hofbauer, 263 F.3d 542, 553 (6th Cir. 2001).” Id. at 194-95
(third alteration in original); see also Magana, 263 F.3d at 553 (“[A] remedy for a Sixth
Amendment violation should be tailored to the injury suffered from the constitutional
violation and should not unnecessarily infringe on competing interests.” (internal
quotation marks omitted)).
No. 06-4669 Goff v. Bagley Page 33

Applying the rationale of Mapes II to the instant case, we conclude that the only
appropriate remedy that we can provide is to grant the writ of habeas corpus unless the
Ohio courts reopen Goff’s direct appeal. This narrow relief will allow us to neutralize
the constitutional violation without overstepping the bounds of our power in this case.
Therefore, we GRANT Goff’s petition for a writ of habeas corpus unless the Ohio courts
reopen Goff’s direct appeal within 120 days to allow Goff to raise his allocution
argument.

E. Remaining Claims

We now turn to Goff’s remaining claims, none of which provide him any further
relief.

1. “Life Sentence is a Life Sentence” Jury Instruction

As his third assignment of error, Goff contends that the trial court should have
submitted to the jury Goff’s proposed jury instructions regarding parole eligibility
because the prosecution alluded to Goff’s future dangerousness during the prosecution’s
closing argument. Bagley counters that the trial court properly rejected Goff’s proposed
instructions because the jury could have recommended life with the possibility of parole.

Goff filed a motion to submit to the jury the following instruction:

If sentenced to life imprisonment, under no circumstances could
defendant be considered for parole for ___ years. If I deem it
appropriate, I may, upon your verdict of life, sentence defendant to ___
consecutive life sentences whereupon he could not be considered for
parole for at least ___ years.
There is no certainty that defendant would ever be released on
parole. After the minimum eligibility period I have already mentioned,
the State Parole Board would be required by law to make a determination
that there is a reasonable probability that, if defendant is released, he will
assume his proper and rightful place in society, without violation of the
law, and that his release is not incompatible with the welfare of society.
The Board may not make this determination without consulting those
concerned with the decision. You, as jurors, retain a right under the law
to express your views to the Board. A prisoner released on parole
No. 06-4669 Goff v. Bagley Page 34

remains on parole for the balance of his life and if he violates the terms
of the parole he may be returned to prison to serve the life sentence.
So that you will have no misunderstanding concerning the
sentence of life imprisonment, I have instructed you concerning the law
as it relates to parole. However, I further instruct you that the subject of
possible parole must be excluded from your deliberations. So far as you
are concerned, a life sentence is a life sentence. If upon and after
consideration of all evidence you believe your verdict should be
imprisonment for life, it would be a violation of your oaths as jurors to
refuse to make that recommendation because of a baseless doubt that the
State Parole Board will properly carry out its legal duties.

J.A. at 907-08 (Mem. in Supp. of Mot. to Instruct the Jury Regarding Parole at 1-2). The
trial court denied the motion, instead instructing the jury as follows:

Members of the Jury, you have heard the evidence and the
arguments of counsel and you will now decide whether you will
recommend to the Court that the sentence of death shall be imposed upon
the Defendant, and if not, whether the Defendant shall be sentenced to
life imprisonment with parole eligibility after serving 20 full years of
imprisonment or to life imprisonment with parole eligibility after serving
30 full years of imprisonment.

J.A. at 709 (Penalty Phase Hr’g Tr. at 2713).

Goff presented this claim on direct appeal, and the Ohio Supreme Court rejected
it:

We have consistently held that consideration of parole and
consecutive or concurrent sentences is not for the jury’s consideration.
See State v. Mills (1992), 62 Ohio St. 3d 357, 374, 582 N.E.2d 972, 987;
State v. Mitts (1998), 81 Ohio St. 3d 223, 229-230, 690 N.E.2d 522,
528-529. The trial court did not abuse its discretion in declining to
instruct the jury as appellant requested. Further, appellant’s trial counsel
made it clear in closing argument that the sentence imposed on the
aggravated murder count would be in addition to the sentences he would
receive on the other charges. Defense counsel also emphasized in voir
dire and in closing argument that even if a life sentence was imposed,
there was no guarantee that parole would be granted.

Goff I, 694 N.E.2d at 924. The district court also rejected Goff’s claim on the merits,
explaining that “a capital defendant is not entitled to an instruction about his parole
No. 06-4669 Goff v. Bagley Page 35

ineligibility if a life imprisonment without possibility of parole is not an option,” and
that, “[a]t the time that [Goff] was convicted and sentenced, there were only three
sentencing options,” none of which involved life without the possibility of parole. J.A.
at 1283 (8/19/03 Op. and Order at 34). We agree with the district court.

The Supreme Court has held that, “if the State rests its case for imposing the
death penalty at least in part on the premise that the defendant will be dangerous in the
future,” and life without the possibility of parole is the only alternative to a death
sentence, “due process plainly requires that [the defendant] be allowed to bring it [the
fact that the defendant is ineligible for parole] to the jury’s attention by way of argument
by defense counsel or an instruction from the court.” Simmons v. South Carolina, 512
U.S. 154, 168-69 (1994); Shafer v. South Carolina, 532 U.S. 36, 39 (2001) (reiterating
that if “a capital defendant’s future dangerousness is at issue, and the only sentencing
alternative to death available to the jury is life imprisonment without possibility of
parole, due process entitles the defendant ‘to inform the jury of [his] parole ineligibility,
either by a jury instruction or in arguments by counsel’” (quoting Ramdass v. Angelone,
530 U.S. 156, 165 (2000)) (alteration in original)). In the instant case, at the time of
Goff’s sentencing, Ohio law provided for three alternative sentences in capital cases:
“death, life imprisonment with parole eligibility after serving twenty years, and life
imprisonment with parole eligibility after serving thirty years.” J.A. at 1283 (8/19/03
Op. and Order at 34). None of these alternatives involve life without the possibility of
parole. Therefore, Simmons and its progeny are not applicable to Goff’s case. Thus,
Goff cannot demonstrate that the Ohio Supreme Court’s decision regarding this jury
instruction was contrary to, or an unreasonable application of, Supreme Court precedent.

2. Disclosure of Plea Agreement

In his fourth assignment of error, Goff contends that the prosecution committed
a Brady v. Maryland, 373 U.S. 83 (1963), violation by failing to disclose a plea
agreement between a key witness, Keith Lamar Jones, and federal prosecutors. Goff
raised this claim on state postconviction review. When evaluating and ultimately
rejecting Goff’s claim, the Ohio Court of Appeals made the following findings of fact:
No. 06-4669 Goff v. Bagley Page 36

Unbeknownst to either the state or appellant, on June 15, 1995,
Jones had signed a written plea agreement with the United States
attorney which included the following paragraph:
Finally, the United States Attorney for the Southern
District of Ohio agrees that if [Jones] provides substantial
assistance in the investigation or prosecution of others
who have committed criminal offenses, the United States
Attorney may move the Court . . . for an appropriate
departure from the otherwise applicable guideline range
for [Jones’] sentence and will in connection therewith
make known to the Court the nature and extent of
[Jones’] assistance. [Jones] understands that whether
such motion should be made lies within the discretion of
the United States Attorney and that whether and to what
extent such motion should be granted are solely matters
for determination by the Court.
On July 10, 1995, Jones entered a guilty plea to one count of false
use of a social security number in violation of Section 408(a)(7)(B), Title
42, U.S. Code.
On cross-examination during his testimony at appellant’s trial,
when asked whether he was under indictment or investigation in federal
court, Jones replied that he was for misuse of a social security number.
Appellant’s trial counsel further delved into the pending federal charge.
Appellant’s trial counsel elicited not only that Jones had been indicted
under the federal charge, but that he had also pled guilty to the federal
charge. Jones admitted that in addition to the time he had already served,
he was “looking at more time[.]” Appellant was subsequently convicted
in July and sentenced in August 1995.
On September 7, 1995, the United States attorney filed a motion
for substantial assistance asking the federal court to consider Jones’
“substantial assistance . . . in a case prosecuted by local authorities” in
determining an appropriate departure from the applicable sentencing
guidelines. On September 15, 1995, the state received a letter from
Jones’ attorney seeking a letter on behalf of Jones regarding his
assistance in appellant’s trial. On September 20, 1995, the state
addressed a letter to the federal court which stated that Jones’ “testimony
was critical in the successful prosecution of [appellant.] . . . Mr. Jones
voluntarily contacted our office and provided us with information and
testimony that was extremely beneficial in the preparation of our case.”
During Jones’ October 31, 1995 sentencing hearing, the United
States attorney stated that Jones was the state’s key witness in appellant’s
trial and that his testimony was critical. Jones’ attorney, in turn, stated
No. 06-4669 Goff v. Bagley Page 37

that Jones had been very cooperative not only in appellant’s trial, but also
with “agents of the United States government from divisions of the IRS,
Health and Human Services and others[.]” That same day, Jones was
sentenced to a twenty-four month term of imprisonment, instead of a
possible maximum sixty-month term.

Goff II, 2001 WL 208845, at *4-5 (alterations and omissions in original). The Ohio
Court of Appeals then concluded that “there is no evidence of any consideration to be
given Mr. Jones in exchange for his testimony. The affidavits and exhibits reflect that
the state did not receive any requests until some 51 days after Jones testified. There is
no evidence of any prior promises or agreements.” Id. at *5 (internal quotation marks
omitted). Additionally, the Court of Appeals noted that “[w]hile the record indicates
when the state became aware of Jones’ then-pending federal charge, it is not clear when,
if ever before Jones’ testimony, the state learned about Jones’ plea agreement and/or
guilty plea.” Id. The Court of Appeals also concluded that, “even assuming that the
state failed to disclose Jones’ plea agreement to appellant, we find, based upon the
totality of the circumstances, that there is no ‘reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different.’” Id. at *6 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).

The district court also denied relief on this claim, noting that “[t]here is no
evidence that the state prosecutors ever promised Jones any consideration in exchange
for his testimony . . . . [or] that they were aware that [Jones] had entered into a plea
agreement.” Goff IV, 2006 WL 3590369, at *16. The district court explained that “a
prosecutor has no obligation under Brady to learn of information possessed by other
government agencies having no involvement in the investigation or prosecution at
issue,” and rejected Goff’s contention “that the knowledge of the federal prosecutors
should be imputed to the [state] prosecutors.” Id. (citing United States v. Morris, 80
F.3d 1151, 1169-70 (7th Cir. 1996)). We agree.

It is true that, “[p]ursuant to Brady, ‘the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence
is material either to guilt or punishment, irrespective of good faith or bad faith of the
No. 06-4669 Goff v. Bagley Page 38

prosecution,’” United States v. Garner, 507 F.3d 399, 405 (6th Cir. 2007) (quoting
Brady, 373 U.S. at 87); however, “‘Brady clearly does not impose an affirmative duty
upon the government to take action to discover information which it does not possess,’”
United States v. Graham, 484 F.3d 413, 417 (6th Cir. 2007) (quoting United States v.
Beaver, 524 F.2d 963, 966 (5th Cir. 1975)), cert. denied, 128 S. Ct. 1703, 128 S. Ct.
1704 (2008). Goff has failed to demonstrate that the Ohio Court of Appeals’s factual
finding—that the state prosecutor had no knowledge of Jones’s plea agreement before
Jones testified—is clearly erroneous, and thus we take that fact as true. See Bailey, 271
F.3d at 656. Furthermore, Goff has pointed to no federal authority requiring a state
prosecutor to inquire into the federal prosecution of a witness that is unrelated to the
state case and that does not involve any persons acting on behalf of the state prosecutor.
Indeed, there is federal law supporting the opposite proposition—that Brady and its
prodigy do not “impos[e] a duty on the prosecutor’s office to learn of information
possessed by other government agencies that have no involvement in the investigation
or prosecution at issue.” Morris, 80 F.3d at 1169; Moon v. Head, 285 F.3d 1301, 1310
(11th Cir. 2002) (refusing to impute to a Georgia prosecutor information that Tennessee
authorities possessed regarding a defendant, where there was no evidence that (1) the
Georgia and Tennessee agencies shared any resources or labor, (2) the two agencies
worked together during the investigation of the defendant, or (3) the Tennessee
authorities were under the direction or supervision of the Georgia prosecutor). Under
these circumstances, we cannot say that the Ohio Supreme Court’s conclusion on this
issue was contrary to, or an unreasonable application of, Supreme Court precedent. Goff
is not entitled to relief on this claim.

3. Jury Instruction Regarding Specific Mitigating Factors

In his fifth assignment of error, Goff contends that the trial court’s refusal to
submit to the jury Goff’s proposed jury instruction regarding specific mitigating factors
that the jury could consider resulted in an unfair trial. Such factors included:

(1) Mr. Goff’s personality disorder;
(2) any residual doubt about the defendant’s guilt of the offense
charged, or an aggravated circumstance;
No. 06-4669 Goff v. Bagley Page 39

(3) Mr. Goff’s potential for rehabilitation;
(4) Mr. Goff’s ability to make a well-behaved and peaceful
adjustment to life in prison;
(5) Mr. Goff’s ability to lead a useful life behind bars if sentenced to
life imprisonment;
(6) Mr. Goff’s devotion to and care of his family members;
(7) Mr. Goff’s deprivation of parental nurturing, and the fact his
conduct disorder was caused by family environment; and
(8) The youth of the offender.
Goff Br. at 57. Additionally, Goff asserts in assignment of error eight that it was error
for the trial court not to instruct the jury regarding Goff’s drug use as a mitigating factor.
Rather than submit Goff’s proposed instructions, the trial court instructed the jury as
follows:

In making your decision you will consider all the evidence, the
arguments of counsel, and all other information and all other reports
which are relevant to the nature and circumstances of the aggravating
circumstances or to any mitigating factors including, but not limited to,
the nature and circumstances of the offense, and 1) the history and
character and background of the Defendant, 2) the youth of the
Defendant, and 3) any other factors that are relevant to the issue of
whether the Defendant should be sentenced to death.
You are to weigh the aggravating circumstances which you have
already found against any mitigating factors which you find to exist.
J.A. at 710 (Penalty Phase Hr’g Tr. at 2714) (emphases added).

Goff raised this issue on direct appeal, and, citing Eddings v. Oklahoma, 455 U.S.
104 (1982), the Ohio Supreme Court rejected Goff’s claim. Goff I, 694 N.E.2d at 922-
23. The district court also rejected the claim, noting that the jury instruction given did
not violate state law and that “petitioner was not denied due process . . . . [because t]he
court’s instructions permitted the jury to consider all the evidence presented by
petitioner in mitigation.” Goff IV, 2006 WL 3590369, at *19, *23. We, too, reject
Goff’s claim.

As stated above, “[t]he Eighth Amendment requires that the jury be able to
consider and give effect to all relevant mitigating evidence offered by petitioner.”
Boyde, 494 U.S. at 377-78. An instruction is constitutional so long as the jury is
No. 06-4669 Goff v. Bagley Page 40

permitted to consider all of the relevant mitigation evidence. Buell, 274 F.3d at 353.
“Where the trial court instructs the jury in accordance with state law and sufficiently
addresses the matters of law at issue, no error results and the petitioner is not entitled to
habeas relief.” White, 431 F.3d at 534.

Here, the trial court’s instruction allowed the jury to consider all of Goff’s
mitigation evidence, and thus adhered to Supreme Court doctrine. Cf. Buell, 274 F.3d
at 353 (denying habeas relief where the trial court gave a jury instruction very similar
to the one at issue in the instant case). Moreover, Goff has not argued that the trial
court’s instruction violated Ohio law. Because the instruction did not violate state law,
and did not limit the jury’s consideration of mitigating factors, we conclude that the
Ohio Supreme Court’s resolution of this claim was not contrary to, or an unreasonable
application of, federal law.

4. Refusal to Instruct the Jury Not to Consider the Nature and
Circumstances of the Offense
In his sixth assignment of error, Goff asserts that the trial court should have
instructed the jury not to consider the nature and circumstances of the crime when
weighing the mitigating and aggravating factors. Instead, the trial court specifically
instructed the jury to consider “all the evidence, . . . including . . . the nature and
circumstances of the offense.” J.A. at 710 (Penalty Phase Hr’g Tr. at 2714). The Ohio
Supreme Court denied this claim on direct appeal. Goff I, 694 N.E.2d at 922-23. The
district court also rejected this claim, finding that “[t]he Ohio Supreme Court has held
that under § 2929.04(B), it is proper, and indeed required, that the court instruct the jury
to consider the nature and circumstances of the offense as a mitigating factor,” and that
“[a] state statute which requires the jury to consider the circumstances of the crime for
which the defendant was convicted is not unconstitutional.” Goff IV, 2006 WL 3590369,
at *20. We agree.

We have noted that Ohio law requires the jury to “‘consider, and weigh against
the aggravating circumstances proved beyond a reasonable doubt, the nature and
circumstances of the offense.’” Slagle v. Bagley, 457 F.3d 501, 520 (6th Cir. 2006)
No. 06-4669 Goff v. Bagley Page 41

(quoting OHIO REV. CODE § 2929.04), cert. denied, 551 U.S. 1134 (2007). Such a
requirement is not unconstitutional. See Tuilaepa v. California, 512 U.S. 967, 976
(1994) (“[O]ur capital jurisprudence has established that the sentencer should consider
the circumstances of the crime in deciding whether to impose the death penalty.”);
Slagle, 457 F.3d at 521. Therefore, we cannot conclude that the Ohio Supreme Court’s
rejection of this claim was contrary to, or an unreasonable application of, federal law.

5. Refusal to Instruct the Jury Not to Consider the Aggravated Murder
Itself
In his seventh assignment of error, which is very similar to his sixth assignment
of error, Goff argues that the trial court should have instructed the jury not to consider
the aggravated murder itself when weighing the mitigating and aggravating factors. The
Ohio Supreme Court rejected this claim on direct appeal, noting that “the [trial] court
correctly identified the aggravating circumstances, and the process of weighing the
aggravating circumstances against the mitigating factors.” Goff I, 694 N.E.2d at 922.
The district court agreed, concluding that the instruction was correct under state law and
that it did not violate the Constitution. Goff IV, 2006 WL 3590369, at *22. As we
explained above, the trial court’s jury instruction regarding the nature and circumstances
of the crime comports with both state law and the Constitution. Moreover, Goff has
pointed to no authority requiring that a jury be specifically instructed that it cannot
consider the aggravated murder itself. Therefore, the Ohio Supreme Court’s decision
on this matter was not contrary to, or an unreasonable application of, federal law.

6. Trial Court’s Refusal to Consider Drug Abuse as a Mitigating Factor

In assignment of error ten, Goff asserts that the trial court refused to consider
Goff’s drug abuse at the time of the commission of the crime as a mitigating factor,
rendering Goff’s death sentence unfair. The trial court made the following observations
in its sentencing opinion:

b) The Defendant has argued that he suffered from alcohol and/or
drug impairment at the time of the offense.
No. 06-4669 Goff v. Bagley Page 42

Although there was evidence that the Defendant had used crack
cocaine earlier in the day, there was no evidence that at the time of the
offense he had used alcohol or was under the influence of either alcohol
or crack cocaine at the time of this offense. Furthermore, the use of
alcohol or drugs is not an excuse for committing a crime.
The Court assigns no weight to this as a mitigating factor.

J.A. at 935-36 (8/18/95 Decision at 9-10). The Ohio Supreme Court rejected this claim
on the merits during Goff’s direct appeal:

The trial court’s statement that it “assigns no weight to this as a
mitigating factor” indicates clearly that the trial court did not “refuse to
consider” alcohol and drug abuse as a mitigating factor. At the same
time, we also agree that some of the trial court’s earlier chosen language
may be inartful, to the extent that the trial court’s sentencing opinion may
be susceptible of a reading that indicates no need to consider the factor
simply because appellant was not under the influence of drugs or alcohol
at the time of the offense. The court’s statement in that regard would be
an incorrect definition of mitigation, one that relates directly to
culpability, as opposed to those factors that are relevant to whether the
offender should be sentenced to death. . . .
However, when this portion of the sentencing opinion is
considered in its entirety, there is no error. Moreover, if there was error,
our independent review would cure it.

Goff I, 694 N.E.2d at 925 (internal citation omitted) (second emphasis added). The
district court also rejected this claim, noting that any error the trial court committed was
corrected when the Ohio Supreme Court independently reweighed the aggravating and
mitigating factors. Goff IV, 2006 WL 3590369, at *38-39. We agree.

We have “held that reweighing by the Ohio Supreme Court under Ohio Rev.
Code § 2929.05(A) satisfies the requirements of Clemons [v.Mississippi, 494 U.S. 738
(1990), which allows an appellate court to cure errors by the trial court in weighing
mitigating and aggravating factors,] when the court either eliminates impermissible
aggravating factors or adds overlooked mitigating factors.” Lundgren v. Mitchell, 440
F.3d 754, 783 (6th Cir. 2006) (citing Baston v. Bagley, 420 F.3d 632, 638 (6th Cir.
2005)). In the instant case, the Ohio Supreme Court independently reweighed the
mitigating and aggravating factors, concluding that Goff “used marijuana, ‘speed,’ and
No. 06-4669 Goff v. Bagley Page 43

inhalants. His crack cocaine dependency occurred during a period of several months in
1994, leading to this crime. However, we give little weight to appellant’s voluntary
substance abuse.” Goff I, 694 N.E.2d at 931. This reweighing, which considered Goff’s
substance-abuse argument, cured any failure on the part of the trial court in regard to
weighing Goff’s substance abuse. Goff is not entitled to relief on this ground.

7. Prosecutorial Misconduct

In his thirteenth assignment of error, Goff contends that he was denied a fair trial
due to prosecutorial misconduct, which occurred when the prosecutor made the
following statement in his closing argument:

I heard this on the radio and it really, really strikes home. I heard an
individual on the radio say that the juries of today, of which you are one,
when they reach their verdicts, when they reach their recommendation of
sentencing, as in this case, are setting the standards of behavior
acceptable to society, and Ladies and Gentlemen of the Jury, that is true.
And the question is, what standard of behavior are you going to set for
society as you go back in that Jury Room and deliberate? What is your
standard? Is the standard going to be you can kill somebody with no
remorse because you want money to go buy crack? Or is the standard
going to be, we will not accept that?

J.A. at 683 (Penalty Phase Hr’g Tr. at 2687). After this statement was made, Goff’s
attorney asked for a sidebar conference, at the conclusion of which the trial court
instructed the jury as follows:

The Court is going to give you an instruction at this time that you
are to ignore and disregard any comments that were just made by the
State concerning enforcing the standards of behavior acceptable to
society. Your job here today is to follow the instruction of the Court and
make your decision accordingly.

J.A. at 683-84 (Penalty Phase Hr’g Tr. at 2687-88). On direct appeal, the Ohio Supreme
Court concluded that the prosecutor’s comments were improper, but ultimately rejected
Goff’s claim on the ground that there was no showing of prejudice:

The prosecutor, however, did overstep the bounds of proper argument on
one occasion, arguing that the jury must set the standards of behavior
No. 06-4669 Goff v. Bagley Page 44

acceptable to society, and appealing to public sentiment. However,
defense counsel immediately objected, and the jury was instructed to
disregard the prosecutor’s inappropriate comments. The jury is
presumed to follow the court’s instruction.

Goff I, 694 N.E.2d at 926. The district court likewise rejected Goff’s claim, Goff IV,
2006 WL 3590369, at *55-58, as do we.

“In the evaluation of a claim for prosecutorial misconduct, it is not enough that
the prosecutor’s comments were improper, but ‘[t]he relevant question is whether the
prosecutors’ comments “so infected the trial with unfairness as to make the resulting
conviction a denial of due process.”’” Smith, 567 F.3d at 255 (quoting Darden v.
Wainwright, 477 U.S. 168, 181 (1986)) (quoting Donnelly v. DeChristoforo, 416 U.S.
637, 643 (1974))). In other words, “[i]n order to satisfy the standard for prosecutorial
misconduct, the conduct must be both improper and flagrant.” Broom v. Mitchell, 441
F.3d 392, 412 (6th Cir. 2006), cert. denied, 549 U.S. 1255 (2007). To determine
whether improper conduct is flagrant, we consider four factors:

(1) the likelihood that the remarks of the prosecutor tended to mislead the
jury or prejudice the defendant; (2) whether the remarks were isolated or
extensive; (3) whether the remarks were deliberately or accidentally
made; and (4) the total strength of the evidence against the defendant.

Bates v. Bell, 402 F.3d 635, 641 (6th Cir.), cert. denied, 546 U.S. 865 (2005).

In the instant case, it is clear that the remarks made by the prosecution were
improper, but we do not believe that they were flagrant. Although the remarks were
deliberately made and might have misled the jury absent a curative instruction, the trial
court immediately gave a curative instruction, which we must presume the jury followed.
Scott, 209 F.3d at 879 (holding that curative instructions are “presume[d] to have been
effective unless there is an ‘overwhelming probability’ that they were ignored” (quoting
Richardson v. Marsh, 481 U.S. 200, 208 (1987))). Further, the remarks were isolated,
and there was substantial evidence before the jury favoring a death sentence. Therefore,
we conclude that the Ohio Supreme Court’s decision on this issue is not contrary to, or
an unreasonable application of, federal law.
No. 06-4669 Goff v. Bagley Page 45

8. Ineffective Assistance of Trial Counsel

As noted above, to demonstrate ineffective assistance of counsel, Goff must
establish that his trial counsel was deficient and that this deficiency prejudiced Goff.
Strickland, 466 U.S. at 687. Prejudice is shown if Goff establishes “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. In his eleventh assignment of error,
Goff asserts that his trial counsel was ineffective because: (1) counsel failed to object
at voir dire when the trial court asked each juror whether he or she could vote for the
death penalty; (2) counsel did not make a proper inquiry into certain mitigating factors,
specifically the degree of Goff’s involvement in the crime (i.e., whether Goff was the
principal offender); (3) counsel did not object to improper prosecution arguments,
specifically the prosecutor’s reference to the jury setting a moral standard with its
verdict; and (4) counsel did not properly attempt to convince Goff to accept a plea
agreement. We have already addressed and rejected the underlying claims presented by
arguments two and three. Given this rejection, Goff cannot show prejudice and his claim
of ineffective assistance of trial counsel based on those arguments must fail. As for
arguments one and four, nowhere in Goff’s briefs does Goff actually argue or explain
these two claims; thus, these arguments are deemed waived. Hall, 549 F.3d at 1042.16

16
Even if these two arguments were not waived, Goff would not be entitled to relief. The trial
court was well within its discretion in asking prospective jurors if, under appropriate circumstances, they
could return a death sentence. See Mu’Min v. Virginia, 500 U.S. 415, 424 (1991) (noting, in the context
of questions regarding racial bias, that “the trial court retains great latitude in deciding what questions
should be asked on voir dire”). Moreover, it appears that such a question does not violate Ohio law. See,
e.g., State v. Evans, 586 N.E.2d 1042, 1057-58 (Ohio 1992) (holding that the trial court’s inquiry of each
juror “whether they could impose the death penalty upon the defendant” was not improper (internal
quotation marks omitted)). Given the precedent available, it is unlikely, even if trial counsel had objected
to the question, that the objection would have, or should have, been sustained, and, thus, Goff cannot
demonstrate prejudice on this claim.
As to Goff’s fourth claim under this heading, Goff does not point to any specific way in which
his trial counsel was ineffective in regard to the plea offer. Although Goff does have an affidavit from an
experienced capital defense attorney outlining a view on effective assistance in this arena, that affidavit
does not specifically address Goff’s representation. J.A. at 1175-83 (Vickers’s Aff.). The affidavit does
not state whether Goff received effective assistance during his plea bargaining experience, but merely
makes a blanket statement that “the vast majority of capital defendants will be misrepresented—and their
constitutional right to the effective assistance of counsel denied—if their counsel does not do everything
within his ability to resolve the case in a plea less than death.” J.A. at 1183 (Vickers’s Aff. ¶ 28).
Goff admits that his counsel advised him to take the plea deal and that he rejected the deal against
counsel’s advice. Goff IV, 2006 WL 3590369, at *44. However, Goff does not present any evidence
regarding what effort counsel did or did not make in trying to convince Goff to accept the plea bargain.
The district court noted that Goff’s “sole allegation is that his trial attorneys failed to obtain assistance
from more experienced attorneys to persuade [Goff] to accept the prosecution’s plea offer.” Id. at *45.
No. 06-4669 Goff v. Bagley Page 46

III. CONCLUSION

Because we conclude that Goff received ineffective assistance of appellate
counsel in regard to his right to allocution under Ohio law, we REVERSE the decision
of the district court and GRANT Goff’s petition for a writ of habeas corpus unless the
Ohio courts reopen Goff’s direct appeal within 120 days to permit his counsel to raise
this issue on direct appeal. We AFFIRM the denial of a writ of habeas corpus on all
other issues raised in this appeal.

We have found no binding authority that requires capital counsel to seek out such advice, nor does Goff
point to any. Furthermore, the affidavit Goff provides does not state that Goff’s counsel was ineffective.
Thus, there is no evidence that Goff’s trial counsel was ineffective in this regard.
No. 06-4669 Goff v. Bagley Page 47

___________________________________________________

CONCURRING IN PART AND DISSENTING IN PART
____________________________________________________

MERRITT, Circuit Judge, concurring in part and dissenting in part. Nothing in
the instructions in this case puts the jury on notice concerning rules as simple as
(1) which party has the burden of proof in establishing the existence of any single
mitigating factor or whether collectively the mitigators outweigh the aggravators, or
(2) whether unanimity is required as to the existence of one or all of the “collective
mitigators,” or, finally, (3) what effect it would have on the verdict if a single juror
believes without agreement from other jurors that a particular mitigator should reduce
the penalty to life imprisonment without parole. In this totally confused state of affairs,
a juror could think that the defendant must prove mitigators by the same standard as the
prosecution must prove aggravators and that jury unanimity is required as to mitigators
just as to aggravators or that a new trial is required in the absence of jury unanimity.

Although the Supreme Court has now established that the Mills doctrine does not
prohibit this potential for massive confusion in the jury room as they deliberate on the
need to impose the death penalty, Justice Stevens, in his concurring opinion in Smith v.
Spisak, 558 U.S. —, 130 S. Ct. 676 (Jan. 12, 2010), after agreeing with the majority in
Spisak that “Mills does not clearly establish [under AEDPA] that the instructions at issue
were unconstitutional,” states: “But, in my view, our decision in Beck v. Alabama, 447
U.S. 625 (1980), does.” Spisak, 130 S. Ct. at 689. Justice Stevens describes the
potential confusion in Ohio’s mitigation and acquittal-first instructions as follows:

The acquittal-first jury instructions used during Spisak’s penalty phase
interposed before the jury the same false choice that our holding in Beck
prohibits. By requiring Spisak’s jury to decide first whether the state had
met its burden with respect to the death sentence, and to reach that
decision unanimously, the instructions deprived the jury of a meaningful
opportunity to consider the third option that was before it, namely, a life
sentence. Indeed, these instructions are every bit as pernicious as those
at issue in Beck because they would have led individual jurors (falsely)
to believe that their failure to agree might have resulted in a new trial and
that, in any event, they could not give effect to their determination that
No. 06-4669 Goff v. Bagley Page 48

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

Id. at 690-91. Having explained, in part, this problem of confusion in the jury room,
Justice Stevens concludes as follows:

Spisak and the Court of Appeals both correctly assailed the jury
instructions at issue in this case, but in my view Beck provides the proper
basis in clearly established federal law to conclude the instructions were
unconstitutional.

Id. at 691.

It is unclear from the paragraph in the majority opinion in Spisak that mentions
Justice Stevens’ concurring opinion what position the majority takes with respect to
Justice Stevens’ argument that the Beck v. Alabama due process case should be used as
the source for the holding that the confusing Ohio mitigation and acquittal-first
instructions are unconstitutional. The majority neither explicitly accepts nor rejects his
argument. Spisak, 130 S. Ct. at 684.

Justice Stevens was under the impression that the Ohio Supreme Court had
changed its instructions in 1996 in State v. Brooks, 75 Ohio St. 3d 148 (1996):

Ohio no longer uses the type of jury instructions at issue in this case. In
1996, the Ohio Supreme Court instructed that “[i]n Ohio, a solitary juror
may prevent a death penalty recommendation by finding that the
aggravating circumstances in the case do not outweigh the mitigating
factors. Jurors from this point forward should be so instructed.” State
v. Brooks, 75 Ohio St. 3d 148, 162, 661 N.E.2d 1030, 1042. . . . [T]he
Ohio high court laudably improved upon the accuracy of Ohio capital
jury instructions in Brooks.

Spisak, 558 U.S. at ____, 130 S. Ct. at 689 n.1. But in fact there has been no significant
change in Ohio law on this subject and instructions continue to leave the burden of proof
on mitigators in a state of confusion as well as the question of unanimity on mitigators
and the consequences for the death penalty of juror disagreement about mitigators. The
courts in Ohio are still not required to tell the jury explicitly that “in Ohio a solitary juror
may prevent [the] death penalty . . . . Jurors from this point forward should be so
No. 06-4669 Goff v. Bagley Page 49

instructed.” Brooks, 75 Ohio St. 3d at 159-60. Neither are the Ohio courts required to
advise the jury what happens when the jurors disagree on the weight to be given to a
mitigating factor. Ohio courts are still upholding death verdicts that do not clarify the
“acquittal-first,” mitigation confusion. See, e.g., State v. Gray, No. 92303, 2010 WL
320481, at *3 - *4 (Ohio Ct. App. Jan. 28, 2010) (refusing to find plain error when judge
only instructed jury that they must find death penalty unanimously); State v. Smith, 97
Ohio St. 3d 367, 372, 780 N.E.2d 221, 229 (2002) (“Although it is advisable for courts
to explicitly instruct the jury that a single juror ‘may prevent a death penalty
recommendation by finding that the aggravating circumstances . . . do not outweigh the
mitigating factors,’ the charge as given did not create prejudicial error.” (citation
omitted) (emphasis added)). It would appear that almost all of the large number of
condemned prisoners on death row in Ohio are there as a result of the same basic set of
instructions that Justice Stevens’ opinion labels as unconstitutional under clearly
established federal law.

In light of the fact that it still remains undecided whether the petitioner Goff in
this case is being condemned to death on the basis of unconstitutional jury instructions,
I would first ask the parties to brief the question raised by Justice Stevens in his
concurring opinion. In the absence of such briefing and consideration, I am inclined to
follow Justice Stevens’ argument, which would require the issuance of the writ of habeas
corpus on due process grounds using Beck as the source of the constitutional law that
invalidates these highly confusing Ohio jury instructions. Goff has made the argument
that the Ohio instructions are completely confusing for the same reasons, and I agree
with him that no one should be executed as a result of such instructions. The only
question is: Can he shift his argument as a matter of form, not substance, to rely on due
process under the Beck case as explained by Justice Stevens? I think we should allow
Goff to unlink his argument from Mills and Spisak and state his question more broadly
to include the issue as outlined by Justice Stevens, as explained above.

Except for our court’s disposition of the issue of the constitutionality of the jury
instructions described above, I would concur in the other parts of the court’s opinion.