Quisi Bryan v. David Bobby

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0289p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

QUISI BRYAN, ┐
Petitioner-Appellee/Cross-Appellant, │
│
│
v. > Nos. 15-3778/3834
│
│
DAVID BOBBY, Warden, │
Respondent-Appellant/Cross-Appellee. │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:11-cv-00060—James G. Carr, District Judge.

Argued: August 2, 2016

Decided and Filed: December 15, 2016

Before: SILER, ROGERS, and DONALD, Circuit Judges.
_________________

COUNSEL

ARGUED: Katherine E. Mullin, OFFICE OF THE OHIO ATTORNEY GENERAL, Cleveland,
Ohio, for Appellant/Cross-Appellee. Lori B. Riga, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Cleveland, Ohio, for Appellee/Cross-Appellant. ON BRIEF: Katherine E.
Mullin, David M. Henry, Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL,
Cleveland, Ohio, for Appellant/Cross-Appellee. Lori B. Riga, Alan C. Rossman, Vicki R. A.
Werneke, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, Kathryn L.
Sandford, OFFICE OF THE OHIO PUBLIC DEFENDER, Columbus, Ohio, for Appellee/Cross-
Appellant.

SILER, J., delivered the opinion of the court in which ROGERS, J., joined, and
DONALD, J., joined in part. ROGERS, J. (pg. 22), delivered a separate concurring opinion.
DONALD, J. (pp. 23–26), delivered a separate opinion dissenting from Part II of the majority
opinion.

1
Nos. 15-3778/3834 Bryan v. Bobby Page 2

_________________

OPINION
_________________

SILER, Circuit Judge. Warden David Bobby (“the Warden”) appeals a district court
judgment partially granting the petition of Ohio death-row prisoner Quisi Bryan for a writ of
habeas corpus. See 28 U.S.C. § 2254. Bryan cross-appeals the judgment to the extent it denied
habeas relief.1 For the following reasons, we AFFIRM IN PART AND REVERSE IN PART.

FACTUAL BACKGROUND

Bryan supported himself selling drugs and “hitting licks” — robbing other drug sellers.
State v. Bryan, 804 N.E.2d 433, 444, ¶ 8 (Ohio 2004). In 1995, Bryan was convicted of
attempted robbery. Since being paroled in 1998, Bryan was indicted for theft and receiving
stolen property. Arrest warrants were issued for him for parole violation.

In 2000, when Bryan’s vehicle was stopped at a gas station, police officer Wayne Leon
pulled behind him. Both men got out of their cars. The officer looked at Bryan’s temporary tag,
noticed it had been altered, and then took Bryan’s driver’s license so that he could run a police
check on both Bryan and the car. When Leon radioed the police station, Bryan pulled his
handgun from his coat and shot the officer in the face. Officer Leon died instantly. Bryan
retrieved his driver’s license and fled in his car.

Other people were present at the gas station during this incident. In addition to the
individuals at the station, Kenneth Niedhammer was waiting at the traffic light next to the gas
station. Niedhammer owned a private security agency and was working that day. He did not
see the shooting, but heard it. Then (as he would later testify) he saw the officer “lying in the
gas station” — “very bloody,” “obviously an officer down” — and “at almost the same time”
saw “a white Pontiac Grand Prix start to erratically leave the gas station almost running into
people.”

1
At Bryan’s request, the district court granted him a certificate of appealability (“COA”) on eight issues,
yet he argues only seven on appeal. See infra note 4.
Nos. 15-3778/3834 Bryan v. Bobby Page 3

Niedhammer activated his siren and flashing lights and gave chase. Twice, Bryan
stopped his car, got out, and fired at Niedhammer. Both times Niedhammer returned fire.
Eventually, Bryan lost control of his car and crashed.

Bryan fled on foot. At some point, Bryan threw his handgun into a dumpster. He
eventually fled to Columbus where he was arrested that same day.

PROCEDURAL HISTORY

Later that year, the trial jury convicted Bryan of two counts of aggravated murder, two
counts of attempted murder (of Niedhammer), the two firearm specifications attached to each of
those four counts, and the four death-penalty specifications attached to each aggravated murder.
The jury also convicted Bryan of one count of carrying a concealed weapon, one count of
carrying a firearm while under disability (being a convicted felon), and one count of tampering
with evidence (throwing the handgun into the dumpster).

In the penalty phase, the trial court, for each aggravated murder, merged the first two
death specifications (murder of a police officer engaged in his duties and murder for the purpose
of killing a police officer) into one (the “killing an officer” aggravator), leaving a total of three
death specifications on each aggravated-murder count: 1) killing an officer, 2) escaping arrest,
and 3) course of conduct. The jury recommended a death sentence. The trial court sentenced
Bryan to death and 33½ years.

Bryan unsuccessfully sought relief on direct appeal, see State v. Bryan, 804 N.E.2d 433,
443, ¶ 1 (Ohio 2004); id. at 471, ¶ 229 (affirming convictions and death sentence). He then tried
but failed to reopen the direct appeal, see State v. Bryan, 816 N.E.2d 1078 (Ohio 2004) (denying
reopening as untimely); State v. Bryan, 817 N.E.2d 891 (Ohio 2004) (striking motion for
reconsideration), and tried but failed to obtain relief in state postconviction proceedings, see
State v. Bryan, No. 87482, 2006 WL 2773646, at *1-2 (Ohio Ct. App. Sept. 28, 2006)
(unpublished) (dismissing for lack of a final appealable order); State v. Bryan, No. 93038, 2010
WL 1918606, at *1, *12 (Ohio Ct. App. May 13, 2010) (unpublished) (affirming dismissal of
postconviction petition), juris. denied, 938 N.E.2d 363 (Ohio 2010) (Brown, C.J., dissenting).
Nos. 15-3778/3834 Bryan v. Bobby Page 4

In 2011, Bryan timely filed his federal habeas corpus petition with sixteen claims. The
district court granted Bryan’s petition on his fifth claim (Batson), Bryan v. Bobby, 114 F. Supp.
3d 467 (N.D. Ohio 2015), but otherwise denied relief on the other fifteen claims.

The Warden timely appealed. The district court granted a COA on Claims 1 (death-
qualifying juror Bross), 3 (improperly dismissing potential jurors for their views on the death
penalty), 6 (guilt-phase prosecutorial misconduct), 7 (penalty-phase prosecutorial misconduct),
8 (ineffective assistance of counsel (“IAC”) in the penalty phase), 9 (guilt-phase IAC), 15 (lethal
injection),2 and 16 (unconstitutional death-penalty scheme). Bryan timely filed his notice of
cross-appeal. Both appeals were consolidated and are presently before us.

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) constrains “the
power of a federal habeas court to grant a state prisoner’s application for a writ of habeas corpus
with respect to claims adjudicated on the merits in state court” by strengthening the presumption
of correctness given to state court determination. Williams v. Taylor, 529 U.S. 362, 412 (2000).
A federal court cannot grant habeas relief unless the state court’s rejection of the claim: (1) was
contrary to or involved an unreasonable application of clearly established federal law, or (2) was
based on an unreasonable determination of the facts. Davis v. Ayala, 135 S. Ct. 2187, 2198
(2015); 28 U.S.C. §2254(d).

In analyzing whether a state-court decision is contrary to or an unreasonable application
of clearly established Supreme Court precedent, a federal court may look only to the holdings of
the Supreme Court’s decisions, not the dicta. White v. Woodall, 134 S. Ct. 1697, 1702 (2014).
A state-court decision on the merits is contrary to clearly established Supreme Court precedent
only if the reasoning or the result of the decision contradicts that precedent. Early v. Packer,
537 U.S. 3, 8 (2002). A state-court decision unreasonably applies that precedent when the state
court correctly identifies the governing legal rule but applies it unreasonably to the facts.
Woodall, 134 S. Ct. at 1705-06. The application must have been “objectively unreasonable, not

2
Bryan has not briefed Claim 15 (lethal injection), thereby abandoning it. See Robinson v. Jones, 142 F.3d
905, 906 (6th Cir. 1998).
Nos. 15-3778/3834 Bryan v. Bobby Page 5

merely wrong; even clear error will not suffice.” Id. at 1702 (quoting Lockyer v. Andrade,
538 U.S. 63, 75-76 (2003) (internal quotation marks omitted)).

When discerning the reasonableness of factual determinations, the “central inquiry is
whether the state court decision was objectively unreasonable and not simply erroneous or
incorrect.” Braxton v. Gansheimer, 561 F.3d 453, 458 (6th Cir. 2009) (citing Harris v.
Haeberlin, 526 F.3d 903, 910 (6th Cir. 2008)). “[A] state-court decision is not unreasonable if
‘fairminded jurists could disagree’ on its correctness.” Ayala, 135 S.Ct. at 2199 (quoting
Harrington v. Richter, 562 U.S. 86, 101 (2011)). Ultimately, the habeas petitioner must show
that the state court’s decision to reject his claim was “so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Id. “[A] reviewing court must be careful not to substitute its own judgment for
that of the state court by equating the more stringent standard of ‘objectively unreasonable’ with
the more lax standard of ‘clear error.’” Braxton, 561 F.3d at 458.

DISCUSSION

I. Claims 1 and 3: Juror Death Qualification

a. Legal Standard

The test for determining whether veniremembers may be excused because of their views
about the death penalty is whether those views would prevent or substantially impair the
performance of their duties as jurors in accordance with their instructions and oath. Wainwright
v. Witt, 469 U.S. 412, 420-24 (1985). “[A] juror who in no case would vote for capital
punishment, regardless of his or her instructions, is not an impartial juror and must be removed
for cause.” Morgan v. Illinois, 504 U.S. 719, 728 (1992). A state-court determination that a
veniremember’s views fall afoul of Witt is a factual finding, state-court resolution of which is
presumed correct. Witt, 469 U.S. at 428-29.
Nos. 15-3778/3834 Bryan v. Bobby Page 6

b. Claim 1: Juror Bross

Bryan argues that the trial court erred in having ex parte communications with
juror Edward U. Bross and then sua sponte death-qualified him again, midtrial, even though he
had already been death-qualified during voir dire.

The Ohio Supreme Court on direct appeal divided the claim into two parts: (1) the court
held that the ex parte communication claim was forfeited and no plain error had occurred and
(2) the rest of the claim failed on the merits. Bryan, 804 N.E.2d at 451-53, ¶¶ 67-84.

The district court held that the Warden had forfeited the procedural default defense.3
However, the court reviewed the entire claim on the merits and found that that the Ohio Supreme
Court decision was neither contrary to, nor an unreasonable application of, clearly established
Supreme Court precedent.

At the trial, on the first day of evidence, Bross had an off-the-record exchange with the
trial judge, during which Bross expressed concern because his photograph had appeared in a
recent edition of the Cleveland Plain Dealer (newspaper). “The photo shows the backs of the
jurors as the jurors stand outside the Sunoco station during the jury view.” Bryan, 804 N.E.2d at
451, ¶ 68 n.1. The judge said he would look into the matter and told Bross they would discuss it
sometime later and that he was not to discuss it with the other jurors. The judge notified both
sides’ counsel of this colloquy. The next day, the judge again spoke to Bross outside the
presence of counsel. Bross expressed reservations about continuing as a juror. On the third day,
the judge held an in-chambers hearing, where he and counsel for both sides asked Bross
questions. At this hearing, the trial judge determined that the photograph was not the real issue,
but that Bross had changed his views of the ability to impose capital punishment. After Bross
answered that he would not be able to impose capital punishment, the trial court judge replaced
Bross with an alternate juror.

Bryan objects to Bross’s disqualification on three grounds: (1) the trial judge erroneously
midtrial death-qualified him when he had already been death-qualified; (2) the trial judge

3
While the Warden’s procedural default defense may be raised sua sponte, determination of that issue is not
needed here as the entire claim fails on the merits.
Nos. 15-3778/3834 Bryan v. Bobby Page 7

erroneously sua sponte questioned Bross about his death penalty views at this midtrial death-
qualifying; and (3) the trial judge had ex parte discussions with Bross. Bryan’s first argument is
essentially this: Once a juror has been death-qualified and seated, the issue may not be revisited
— even when his views evolve to the point that, had they been expressed during voir dire, would
have required excusal for cause under Witt. Bryan argues that “[a]ll clearly established law on
death qualifying a juror requires that questioning be conducted pretrial, prior to hearing any
evidence in the case.”

Yet Bryan points to no clearly established Supreme Court precedent forbidding midtrial
death-qualification of a witness or sua sponte questioning him about his death penalty views
midtrial. Instead, for the midtrial death-qualification, Bryan attaches significance to the fact that
prior precedent has always dealt with empaneling a death-qualified juror, rather than death-
qualifying again an already seated juror. See, e.g., Holder v. Palmer, 588 F.3d 328, 338 (6th Cir.
2009) (“The primary purpose of the voir dire of jurors is to make possible the empaneling of an
impartial jury through questions that permit the intelligent exercise of challenges by counsel.”
(citing United States v. Blount, 479 F.2d 650, 651 (6th Cir. 1973) (emphasis added))). But this
misses the point as the question under AEDPA is not whether clearly established Supreme Court
precedent has already approved the state-court action, but whether that precedent has forbidden
it. See 28 U.S.C. § 2254(d). Bryan is unable to point to that precedent as it does not exist.
In addition, no clearly established Supreme Court precedent forbids judges from recognizing
the implications of the evidence brought before them: intuiting that, beneath the surface of
stated concern, lurks the real concern. And certainly no such precedent forbids judges, after
recognizing a potential problem, from holding a hearing on the matter.

As for the ex parte discussions, Bryan argues that it is “unclear” what effect those
discussions had on Bross and whether they rendered him no longer impartial.

“[T]he remedy for allegations of juror partiality is a hearing in which the defendant has
the opportunity to prove actual bias.” Smith v. Phillips, 455 U.S. 209, 215 (1982). Bryan had a
hearing at which defense counsel could have questioned Bross about those ex parte discussions.
Counsel did not. The Ohio Supreme Court held, therefore, that Bryan had forfeited all but plain
error. Bryan, 804 N.E.2d at 452, ¶ 83. The court further held that it was his burden to show
Nos. 15-3778/3834 Bryan v. Bobby Page 8

actual prejudice, and he had not. Id. at 452-53, ¶ 84. As shown by Bryan’s repeated use of the
term “unclear,” he still has not. Again, he points to no clearly established Supreme Court
precedent violated.

c. Claim 3: Jurors Hawkins and Bailey

Bryan argues that the trial court violated Witt by dismissing two properly qualified,
nonbiased veniremembers. Both the Ohio Supreme Court on direct appeal, Bryan, 804 N.E.2d at
453-54, ¶¶ 101-04, and the district court concluded that this claim is meritless.

The two veniremembers in question are Matilda Hawkins and Dorothy Bailey.

i. Juror Hawkins

“During voir dire, prospective juror Hawkins expressed her opposition to the death
penalty because of Biblical teachings.” Bryan, 804 N.E.2d at 454, ¶ 102. “I think thou shall not
kill. If we killed him, then we[’re] no better. Why not just let him repent maybe for life or
something?” “I just don’t want to kill anyone. . . . I just don’t want to be part of the killing.”
She testified that she did not want to vote for a death sentence and did not want to sign a verdict
recommending a death sentence. “I don’t want to sign nothing of the kind.” At one point, she
shook her head to indicate that she could not impose the death penalty.

She also testified that she could follow the law as the judge gave it to her. “I’m supposed
to obey the laws of the land. That’s what the Bible says, too.” “I’ll follow the law.” The court
ruled her not qualified to serve due to her religious views preventing or substantially impairing
her ability to perform her duties as a juror. Witt, 469 U.S. at 420-24.

Bryan challenges this factual finding on three bases: (1) Hawkins said she would follow
the law; (2) the Ohio Supreme Court found she “was willing to follow the law”; and (3) the judge
misquoted Hawkins. See Bryan, 804 N.E.2d at 454, ¶ 102. Accepting these contentions as true,
there still is ambiguity in her responses.

While Hawkins claims she would follow the law, she also shook her head indicating that
she could not impose the death penalty and that she did not want to vote for a verdict
recommending a death sentence. Those responses are the epitome of an ambiguous response.
Nos. 15-3778/3834 Bryan v. Bobby Page 9

The trial judge’s resolution of that ambiguity — that, when all her verbal and physical statements
were combined, she was really saying, “I’ll follow the law except where the death penalty is
concerned” — was not clear error. Cf. Anderson v. Bessemer City, 470 U.S. 564, 574 (1985)
(“Where there are two permissible views of the evidence, the factfinder’s choice between them
cannot be clearly erroneous”).

Furthermore, the trial judge’s finding of veniremember bias

may be upheld even in the absence of clear statements from the juror that he or
she is impaired because “many veniremen simply cannot be asked enough
questions to reach the point where their bias has been made ‘unmistakably clear’;
these veniremen may not know how they will react when faced with imposing the
death sentence, or may be unable to articulate, or may wish to hide their true
feelings.” Thus, when there is ambiguity in the prospective juror’s statements,
“the trial court, aided as it undoubtedly [is] by its assessment of [the venireman’s]
demeanor, [is] entitled to resolve it in favor of the State.”

Uttecht v. Brown, 551 U.S. 1, 7 (2007) (emphasis added, all other alterations in original)
(quoting Witt, 469 U.S. at 424-25; id. at 434).

Bryan’s challenge to the trial judge’s misquotation of Hawkins is also unavailing. The
judge remembered her, when asked whether she could sign the death verdict, saying, “Absolutely
not,” when she actually said she did not want to. But here is the judge’s quote in larger context:

I said, “Could you sign the form?”

And she said, “Absolutely not.”

I have to make a tough call. I got to find her not qualified because I don’t
think that she can in good faith follow the law. I think she has claimed she will,
but she indicated also that she wouldn’t. So she’s going to be not qualified at this
point.

As can be seen, when the judge attributed that absolutely not to Hawkins, he was giving
the sense of what she said, not the literal wording. See Uttecht, 551 U.S. at 7. This is confirmed
by his subsequent statement that “I think she has claimed she will [follow the law], but she
indicated [as opposed to said] also that she wouldn’t.” That summary of what he understood her
to really mean was not a clearly erroneous finding of fact. And it did not lead to a clearly
erroneous finding of the ultimate fact: that Hawkins was biased.
Nos. 15-3778/3834 Bryan v. Bobby Page 10

ii. Juror Bailey

Prospective juror Bailey testified that she was not morally, ethically, or religiously
opposed to capital punishment, but also testified that “I really do believe I cannot support the
death penalty.” When asked whether she could vote for death if aggravation outweighed
mitigation beyond a reasonable doubt, she replied, “I really don’t know.” She testified that she
could follow the law, but —after some detailed questioning about aggravation versus mitigation
—was asked again whether she could follow the law and this time replied, “I would certainly
try.” Eventually, she agreed that she would end up following the law, but—questioned by a
different person—still felt that she would have a hard time voting for death. The trial judge
intervened and further explained the weighing of aggravation and mitigation and the sentences
available depending on which outweighed the other. Now, when asked whether she could sign a
death verdict, she replied, “I doubt it.” Over defense objection, the court found her not qualified.

Bryan argues that Bailey’s responses were “equivocal.” But here those equivocal
responses, taken all together, add up to complete ambiguity. As mentioned above, the trial judge
has the right to resolve that ambiguity. Brown, 551 U.S. at 8 (alteration in original) (quoting
Darden v. Wainwright, 477 U.S. 168, 178 (1986)). In this case, the trial judge decided that I
doubt it meant I cannot. That is not clearly erroneous or even erroneous.

Bryan also argues that (a) the judge misstated the law to Bailey when questioning her
about her ability to sign a death verdict and (b) this misstatement somehow undermines the
finding that she was biased. While explaining the weighing of aggravation and mitigation, the
judge told her, “[W]hen the mitigation outweighs the aggravating circumstances, you can go to
life in prison, or life in prison with parole at 30 years, or life in prison with parole at 25 years.”

Bryan says this is a misstatement of Ohio law, but does not explain further. Bryan also
does not explain how the misstatement undermines the trial judge’s finding that Bailey was
biased—likely because it would have no such effect.

Because the state court’s adjudication of Bryan’s Claims 1 and 3 was neither contrary to
clearly established federal law nor factually unreasonable, we affirm the district court’s ruling.
Nos. 15-3778/3834 Bryan v. Bobby Page 11

II. Claim 5: Batson

a. Legal Standard

“[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely
on account of their race or on the assumption that black jurors as a group will be unable
impartially to consider the State’s case against a black defendant.” Batson v. Kentucky, 476 U.S.
79, 89 (1986), modified on other grounds by Powers v. Ohio, 499 U.S. 400 (1991). The trial
court’s determination whether the prosecutor is using his peremptory challenges for that
improper reason involves three steps. “[O]nce the opponent of a peremptory challenge has made
out a prima facie case of racial discrimination (step one), the burden of production shifts to the
proponent of the strike to come forward with a race-neutral explanation (step two).” Purkett v.
Elem, 514 U.S. 765, 767 (1995). Step two does not demand an explanation that is “persuasive,
or even plausible,” so long as it is facially race neutral. Id. at 767-68. Although the standard to
be met at this point may be low, the prosecutor is limited to the explanation he gives. No matter
that the trial court or an appellate court may think of better, more plausible, more constitutionally
acceptable reasons for the strike, the only explanation to be analyzed is the explanation the
prosecutor in fact gave. See Miller-El v. Dretke, 545 U.S. 231, 252 (2005) (citing Miller-El v.
Cockrell, 537 U.S. 322, 339 (2003)); see also Cockrell, 537 U.S. at 338. If step two is satisfied,
“the trial court must then decide (step three) whether the opponent of the strike has proved
purposeful racial discrimination.” Elem, 514 U.S. at 767. The critical question here is “the
persuasiveness of the prosecutor’s justification for his peremptory strike,” Cockrell, 537 U.S. at
338-39 — quite simply, whether the trial court finds the prosecutor’s race-neutral explanations
credible or pretextual. See id. at 339.

In addition to the highly deferential standard AEDPA imposes, Batson claims are also
subject to highly deferential review. The trial court’s decision on the ultimate question of
improper discriminatory intent is a finding of fact to be accorded “great deference.” Hernandez
v. New York, 500 U.S. 352, 364-65 (1991) (plurality). “Deference is necessary because a
reviewing court, which analyzes only the transcripts from voir dire, is not as well positioned as
the trial court is to make credibility determinations.” Cockrell, 537 U.S. at 339; see also
Hernandez, 500 U.S. at 365 (“[E]valuation of the prosecutor’s state of mind based on demeanor
Nos. 15-3778/3834 Bryan v. Bobby Page 12

and credibility lies ‘peculiarly within a trial judge’s province.’”) quoting Witt, 469 U.S. at 428)).
In addition, a Batson claim “presents a mixed question of law and fact and ‘necessarily focuses
on the reasonableness of the decision of the state courts. . . .’” Braxton, 561 F.3d at 458
(quoting Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003)). The “question of ‘whether a
prosecutor intended to discriminate on the basis of race in challenging potential jurors is, as
Batson recognized, a question of historical fact.’” Lancaster, 324 F.3d at 429 (quoting
Hernandez, 500 U.S. at 367). Thus, the deference given to district courts “must be modified in
the context of a §2254 petition to give credence to §2254(e)(1)’s requirement that facts found by
a state court be presumed correct unless the petitioner rebuts this presumption by clear and
convincing evidence.” Braxton, 561 F.3d at 458 (citing Lancaster, 324 F.3d at 429 n.1).

b. Striking Potential Juror Crystal Jones

The Warden argues that the district court erred in granting Bryan relief on this claim that
the trial court violated Batson by allowing the prosecution to use a peremptory challenge to
strike potential juror Crystal Jones.

On direct appeal, the Ohio Supreme Court held the claim meritless. Bryan, 804 N.E.2d at
454-56, ¶¶ 105-10, 114 (citing Batson). The court held that Bryan “offers no evidence of
discriminatory intent.” Id. at 455, ¶ 110. The district court, on habeas review, held that the Ohio
Supreme Court decision was based on an unreasonable determination of the facts in light of the
evidence presented to the state courts, 28 U.S.C. § 2254(d)(2), and that the state court’s finding
that the prosecutor did not violate Batson was clear error, 28 U.S.C. § 2254(e)(1).

The parties agree that Batson’s step one—establishing a prima facie case—is satisfied
because the prosecutor went ahead and offered the step-two race-neutral explanation. See
Hernandez, 500 U.S. at 359 (“Once a prosecutor has offered a race-neutral explanation for the
peremptory challenges and the trial court has ruled on the ultimate question of intentional
discrimination, the preliminary issue of whether the defendant had made a prima facie showing
becomes moot.”). In addition, the trial court made a step three ruling by finding no Batson
Nos. 15-3778/3834 Bryan v. Bobby Page 13

violation, although the ruling was concise.4 Therefore, the Ohio Supreme Court’s upholding of
the Batson step three determination—no purposeful racial discrimination—must be analyzed
under the appropriate deferential standard.

The Supreme Court of Ohio found the record fully supports the trial court’s finding that
the prosecution provided sufficient race-neutral reasons for peremptorily striking Jones. Because
of the deference afforded to state court determinations through AEDPA, we agree.

At trial, the prosecution offered three reasons for striking Jones: (1) her general
demeanor; (2) her non-verbal response to whether the jury was under an enormous amount of
pressure to return a verdict; and (3) her listing The Ox-Bow Incident in the juror questionnaire
and general concerns about the judicial system’s fairness.

Concerning Jones’s general demeanor and her non-verbal responses, the prosecution
stated that Jones’s mannerism seemed “very inconvenienced by the whole process that had been
taking place.” Furthermore, the prosecution noted that “she had been tired of being herded
around” and “was somewhat offended by the nature of the questions.” These instinctual
judgments are the exact nature of decisions that the Ayala court recognized that lawyers must
make when making “nuanced” comparisons of prospective jurors. 135 S.Ct. at 2201. Because a
“trial court is best situated to evaluate both the words and the demeanor of jurors who are
peremptorily challenged, as well as the credibility of the prosecutor who exercised those strikes,”
a federal habeas court is not meant to second-guess the state court’s decision. Id. Therefore, the
“determinations of credibility and demeanor lie particularly within a trial judge’s province,” and
“in the absence of extraordinary circumstances,” a federal habeas court should “defer to the trial
court.” Id. Because extraordinary circumstances do not exist in this case, we defer to the state
court determination of Jones’s demeanor as proper grounds for her being struck as a juror.

As for the last race-neutral justification for striking Jones, the prosecutor noted that Jones
listed The Ox-Bow Incident in her juror questionnaire as to whether or not an African-American
can receive a fair trial, along with expressing other general concerns of the judicial system

4
Bryan argues that Snyder v. Louisiana, 552 U.S. 472 (2008), requires a specific-credibility finding. Under
AEDPA, Snyder issued too late to be clearly established precedent. See Akins v. Easterling, 648 F.3d 380, 390 (6th
Cir. 2011).
Nos. 15-3778/3834 Bryan v. Bobby Page 14

fairness.5 In granting habeas relief, the district court found the prosecution’s mistaken recount of
The Ox-Bow Incident facts as basis for racial discrimination. At the trial, the prosecutor stated
that The Ox-Bow Incident concerned an African-American who was lynched for a crime that he
did not commit. While the story did not depict any African-Americans being lynched, that is
irrelevant here. What remains relevant is the fact that Jones listed the story as an answer to
whether an African-American can receive a fair trial. It was the response to this race-specific
question that The Ox-Bow Incident became relevant. Furthermore, neither Jones nor Bryan
objected to the prosecutor’s misstatement of the facts of The Ox-Bow Incident. Therefore,
through proper AEDPA deference, the state court was not factually unreasonable when it
determined that Jones listing The Ox-Bow Incident as an answer to the question concerning
African-American judicial fairness is a proper race-neutral reason for striking Jones, and the
district court improperly substituted its interpretation of the evidence for the findings of the trial
judge. See Ayala, 135 S.Ct. at 2201.

Ultimately, the state court’s adjudication of Bryan’s Batson claim was neither contrary to
clearly established federal law nor factually unreasonable. Even if the district court believed the
state court was wrong in its factual determination, it was not unreasonable and therefore proper
deference should have been afforded.6 See Murray v. Schriro, 745 F.3d 984, 1005 (9th Cir.
2014) (“The trial judge has a front-row seat in the orchestra” whereas the federal habeas court
sits in a “lofty perch in the loges, where we are separated by time and distance from the
proceedings.”). Accordingly, we reverse the district court’s grant of habeas relief on Bryan’s
Batson claim.

5
In addition to The Ox-Bow Incident comment, Jones’s questionnaire also provided other concerns with
judicial fairness. For example, she stated that she believed race plays a role in the criminal justice system. These
concerns provided another proper, race-neutral, basis to strike Jones. See, e.g., Akins, 648 F.3d at 388 (holding that a
prosecutor does not violate Batson by removing a juror who expresses interest about race in the criminal justice
system).
6
The lack of deference can best be seen in the district court’s independent review of Jones’s response in
comparison to white jurors. Ultimately, the district judge used the comparative analysis to “apply de novo review of
factual findings and to substitute its own opinion for the determination made on the scene by the trial judge.” Ayala,
135 S.Ct. at 2202.
Nos. 15-3778/3834 Bryan v. Bobby Page 15

III. Claims 6 and 7: Prosecutorial Misconduct

a. Legal Standard

Prosecutorial misconduct not touching on a specific provision of the Bill of Rights is
reviewed under the general standard for due-process violations. See Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974). Under this, “it ‘is not enough that the prosecutors’ remarks were
undesirable or even universally condemned.’ The relevant question is whether the prosecutors’
comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of
due process.’” Darden, 477 U.S. at 181 (quoting first Darden v. Wainwright, 699 F.2d 1031,
1036 (11th Cir. 1983), then DeChristoforo, 416 U.S. at 643). If the misconduct was harmless,
then as a matter of law, there was no due-process violation. See Greer v. Miller, 483 U.S. 756,
765 & n.7 (1987). In federal habeas, the determination is whether the error “had substantial and
injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S.
619, 623, 637-38 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); see also
Fry v. Pliler, 551 U.S. 112, 121-22 (2007).

b. Guilt Phase Closing

Bryan argues that the prosecutor committed misconduct in guilt-phase closing causing
the jury to find aggravated murder where the evidence was only sufficient to find involuntary
manslaughter. On direct appeal, the Ohio Supreme Court held that Bryan had forfeited all but
plain error. The court found the error not at all plain “in view of the overwhelming evidence of
his guilt.” Bryan, 804 N.E.2d at 459-60, ¶¶ 141-53. In federal habeas proceedings, the district
court found some of the prosecutor’s comments improper, but harmless in view of what the
district court agreed was “overwhelming” evidence of guilt.

The Ohio Supreme Court devoted nine paragraphs to giving an adequate sense of the
challenged portion of the prosecutor’s closing. Bryan, 804 N.E.2d at 459-60, ¶¶ 142-50. Instead
of providing a verbatim recount of those nine paragraphs, here are a few examples of the
prosecutor’s statements:
Nos. 15-3778/3834 Bryan v. Bobby Page 16

[W]hen this case is just a memory to you, ladies and gentleman, Officer Leon’s
small children will go on a journey of their own to find out what kind of a father
they had. And ultimately that journey will take them here to this courtroom.

Ultimately, ladies and gentlemen, their mother, their grandfather, their uncles,
their friends, their colleagues will all say something about who Wayne Leon was
but ultimately it will be your decision * * * that will define Wayne Leon.

Id. at 459-60, ¶¶143-50.

Because Bryan admitted killing Officer Leon, his prejudice argument concerns only his
intent when pulling the trigger. Like his argument at trial, Bryan argues that he did not intend to
kill the officer. Instead, Bryan argues that he shot Officer Leon through a reflex motion after
Officer Leon saw the gun and pivoted.

Bryan’s account of the events is implausible. First, it directly contradicts the eyewitness
testimony of Geneva Marie Jefferson and George Abou-Nader. Both witnesses testified that
Officer Leon did not see the gun causing Bryan’s “reflexes” to pull the trigger.

Even disregarding the eyewitness testimony, the physical evidence proves Bryan’s
argument implausible. The coroner testified that (a) Officer Leon “had a single gunshot wound
on the left side of his face” and (b) the bullet’s trajectory — entering on the left, but coming to
rest “immediately beneath the skull on the back of the right side of the head” — was consistent
with his face having been turned to the right when he was shot. See Bryan, 804 N.E.2d at 447,
¶ 33.

In the end, the jury, presented with an instruction for the lesser offense of involuntary
manslaughter, found Bryan guilty of aggravated murder not because of its being inflamed but
because of the evidence presented. Additionally, the errors complained of were harmless under
Brecht.

c. Penalty Phase Closing

Bryan argues that the prosecutor made extensive improper comments in penalty-phase
closing argument, thus inflaming the jury. Bryan lost this claim on direct appeal, partly on the
merits, mainly (where he did not object at trial) because the error was not plain. Bryan,
Nos. 15-3778/3834 Bryan v. Bobby Page 17

804 N.E.2d at 463-65, ¶¶ 175-87. He also lost at the district court. The district court reached the
merits because it found the Warden to have forfeited his procedural-default defense. However,
the district court held the claim meritless because the Ohio Supreme Court decision was
reasonable.7

The prosecutor’s alleged acts of misconduct were many. See Bryan, 804 N.E.2d at 463-
65, ¶¶ 176-78, 180-86 (outlining them). Some the state supreme court held improper. Id. at 464,
¶¶ 180-82. The district court agreed.

Nonetheless, assuming the comments at the worst, any harm was cured when the Ohio
Supreme Court independently reweighed aggravation and mitigation. Bryan, 804 N.E.2d at 469-
71, ¶¶ 215-27; see also id. at 464, ¶ 182 (“[O]ur independent assessment of the sentence has
cured any lingering impact from the prosecutor’s comments”). See LaMar v. Houk, 798 F.3d
405, 431 (6th Cir. 2015) (citing Lundgren v. Mitchell, 440 F.3d 754, 783 (6th Cir. 2006)), cert.
denied, 136 S. Ct. 1715 (2016); see also Clemons v. Mississippi, 494 U.S. 738, 749-50 (1990).8

In an attempt to succeed on this issue, Bryan cites two cases: DePew v. Anderson,
311 F.3d 742 (6th Cir. 2002), and Cauthern v. Colson, 736 F.3d 465 (6th Cir. 2013). However,
neither case changes the outcome.

DePew issued several years before this court first recognized that, under Clemons’s logic,
appellate reweighing would cure not just penalty-phase jury-weighing errors, but also
prosecutorial misconduct affecting that jury weighing. See Lundgren, 440 F.3d at 781-83;
see also id. at 783 (“This Court has not addressed a case . . . in which the reweighing is said to
cure a trial level violation tending to prejudice the jury’s view of the evidence, as opposed to the
jury’s inclusion of an impermissible factor or failure to consider a relevant mitigating factor.”).
Hence, DePew did not consider whether the misconduct found there had been cured by appellate
reweighing. Cauthern, meanwhile, was tried in Tennessee, 736 F.3d at 468, where appellate

7
While there is a question whether the procedural-default defense can be raised sua sponte, it is
unnecessary in this case as the state court’s adjudication of the claim was not unreasonable.
8
Bryan also argues the prosecutor’s misconduct in the guilt phase had a carryover effect on the penalty
phase. Even if true, that too was cured by appellate reweighing. See Bryan, 804 N.E.2d at 471, ¶ 227 (“In
evaluating this sentence, we have considered the potential effect on the jury of the prosecutor’s improper remarks
during his arguments both in the guilt phase and the penalty phase”).
Nos. 15-3778/3834 Bryan v. Bobby Page 18

courts may not independently reweigh aggravation and mitigation. See State v. Burlison,
868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993).

Because the state court’s adjudication of Bryan’s Claims 6 and 7 was neither contrary to
clearly established federal law nor factually unreasonable, we affirm the district court’s ruling.

IV. Claims 8 and 9: Ineffective Assistance of Counsel

a. Legal Standard

To establish ineffective assistance of counsel, Bryan must show that (1) counsel’s
performance was deficient — objectively unreasonable under prevailing professional norms —
and (2) it prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
Prejudice exists if there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceedings would have been different. Id. at 694. Although the reasonable-
probability standard is lower than the more-probable-than-not standard, id. at 693-94; Kyles v.
Whitley, 514 U.S. 419, 434 (1995), the difference between the two “is slight and matters ‘only in
the rarest case.’ The likelihood of a different result must be substantial, not just conceivable.”
Richter, 562 U.S. at 112 (quoting Strickland, 466 U.S. at 697).

Something else must be borne in mind when the ineffectiveness claim is reviewed under
AEDPA. The Strickland and § 2254(d) standards are both highly deferential. “When § 2254(d)
applies, the question is not whether counsel’s actions were reasonable. The question is whether
there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id. at
105.

b. Guilt Phase

Bryan argues that counsel were ineffective in the guilt phase. In district court, he listed
several trial-counsel failures. Here, he argues only one: failure to procure a firearms expert.
According to Bryan, the State’s expert at trial testified that the handgun had a trigger pull of
10.5 pounds. But a defense firearms expert could have testified that the trigger pull was only
5.5 pounds. This would have supported Bryan’s involuntary-manslaughter defense.
Nos. 15-3778/3834 Bryan v. Bobby Page 19

Both the state court of appeals in post-conviction proceedings, Bryan, 2010 WL 1918606,
at *6-7 (citing Strickland), and the district court held this claim meritless.

In light of both the eyewitness testimony and the physical evidence, Bryan’s involuntary-
manslaughter defense is not plausible. Subtracting five pounds from the trigger pull would not
change the plausibility of his defense.

Bryan has a fallback argument: use of this evidence would have left residual doubt of his
guilt to be carried over to the penalty phase. This also fails. Residual doubt is not a mitigator in
Ohio. State v. McGuire, 686 N.E.2d 1112, 1122-23 (Ohio 1997). For purposes of the Strickland
prejudice analysis, it must be assumed the jurors would have obeyed the law. 466 U.S. at 694-
95. Hence, it must be assumed they would not have considered residual doubt, even if they had
had any.

Accordingly, Bryan’s claim for ineffective assistance of counsel in the guilt phase fails
because he cannot establish prejudice.

c. Penalty Phase

Bryan argues that his counsel were ineffective in the penalty phase due to failing to
present more testimony, better preparing his mother to testify, and failing to introduce his prison
records.

He twice raised this claim in state court. On direct appeal — where he was forbidden to
add evidence to the record, see State v. Ishmail, 377 N.E.2d 500, syl. ¶ 1 (Ohio 1978) — the
Ohio Supreme Court held that counsel’s performance was neither deficient nor prejudicial.
Bryan, 804 N.E.2d at 465-66, ¶¶ 188-95, 197 (citing Strickland). In post-conviction
proceedings, the state court of appeals held the claim meritless. Bryan, 2010 WL 1918606, at
*6-11 (citing Strickland); see also id. at *11 (“may” also be barred by res judicata). The district
court held the claim meritless.

Although “the defense employed a mitigation specialist, a psychologist, and an
investigator[,]”Bryan, 804 N.E.2d at 465, ¶ 190, Bryan’s counsel decided to only put Bryan’s
mother on the stand, make an unsworn statement, and submit documentary evidence. While
Nos. 15-3778/3834 Bryan v. Bobby Page 20

strategic choices made after thorough investigation of law and facts relevant to plausible options
are virtually unchallengeable, Strickland, 466 U.S. at 690, the review of counsel’s performance is
unnecessary here.

Bryan has failed to establish that there is a reasonable probability that, but for counsel’s
alleged unprofessional errors, the result of the proceedings would have been different. Id. at 694.
Bryan killed a police officer, and repeatedly tried to kill another man, all while trying to escape
arrest for another committed offense. Thus, it is not reasonably probable that submitting Bryan’s
broken childhood and mixed prison record would have changed the outcome of the penalty
phase.

Accordingly, we affirm the district court’s ruling on Claims 8 and 9 because Bryan’s
counsel satisfied Strickland’s deferential standard.

V. Claim 16: Unconstitutional Death-Penalty Scheme

Bryan argues that Ohio’s death-penalty scheme is unconstitutional because it (a) imposes
death in a racially discriminatory manner and (b) violates international law. On direct appeal,
the Ohio Supreme Court summarily rejected this claim. Bryan, 804 N.E.2d at 469, ¶ 214. The
district court held that rejection reasonable and the claim, therefore, meritless.

This claim fails. Ohio’s death-penalty scheme is neither unconstitutionally racially
discriminatory, see Keene v. Mitchell, 525 F.3d 461, 463-65 (6th Cir. 2008); Coleman v.
Mitchell, 268 F.3d 417, 441-42 (6th Cir. 2001), nor barred by international law, see Buell v.
Mitchell, 274 F.3d 337, 370-76 (6th Cir. 2001); Coleman, 268 F.3d at 443 & n.12.

Accordingly, we affirm the district court’s ruling concerning Bryan’s claim that Ohio’s
death-penalty scheme was unconstitutional.

CONCLUSION

The district court correctly denied Bryan’s writ of habeas corpus on the grounds of Claim
1 (Juror Bross), 3 (Jurors Hawkins and Bailey), 6 (guilt phase prosecutorial misconduct),
7 (penalty phase prosecutorial misconduct), 8 (penalty phase IAC), 9 (guilt phase IAC),
15 (lethal injection), and 16 (unconstitutional death-penalty scheme). However, the district court
Nos. 15-3778/3834 Bryan v. Bobby Page 21

incorrectly granted Bryan’s writ of habeas corpus on Claim 5 (Batson) by failing to properly
defer to the state court’s ruling and substituting its own opinion for the determination made by
the state court.

For the reasons stated, we AFFIRM IN PART AND REVERSE IN PART the
judgment of the district court, VACATE the grant of a writ of habeas corpus, and REMAND the
case for dismissal of the § 2254 petition.
Nos. 15-3778/3834 Bryan v. Bobby Page 22

_________________

CONCURRENCE
_________________

ROGERS, Circuit Judge, concurring. I join the majority opinion in full.

The most difficult aspect of this case is the trial court’s striking of veniremember Crystal
Jones, who from the record at least appears to have been a perfectly good person to have on the
jury. However, applying AEDPA deference, the state court was not unreasonable in rejecting the
Batson challenge with respect to Ms. Jones. Each of the prosecutor’s reasons can be seen as
providing support for the same valid nonracial prosecutorial concern—that Ms. Jones was
steeling herself from being rushed to judgment. A prosecutor could validly wish to strike a juror
with such an attitude. The sense that Ms. Jones felt inconvenienced, and that she felt “herded
around,” directly support such a prosecutorial concern. So does Ms. Jones’ answer to
questionnaire question 47. The question was, “Do you believe an African American can receive
a fair trial in our Criminal Justice System?” Ms. Jones answered, “Yes.” Following up on her
just-expressed thought, however, she explained, “again if there isn’t a system at all then, the
general public would take matters in their own hands, i.e., ‘The Ox-Bow Incident.’” The Ox-
Bow Incident is a well-known novel that involves a Western vigilante hanging of three innocent
men. Independently bringing up the novel could reinforce a prosecutorial perception that Ms.
Jones had her mind on the possibility of a rush to judgment. The district court, for its part, relied
on the mistaken assumption of the prosecutor—that the victim(s) in the novel were African-
American—to conclude that the prosecutor’s reliance on Ms. Jones’ reference was racial. But
that mistake as to the novel’s story does not logically support a conclusion that the prosecutor
was striking Ms. Jones on the basis of race.
Nos. 15-3778/3834 Bryan v. Bobby Page 23

_________________

DISSENT
_________________

BERNICE BOUIE DONALD, Circuit Judge, dissenting in part. Because I believe that
the district court properly found the Ohio Supreme Court decision to be an unreasonable
determination of the facts surrounding Bryan’s Batson challenge, I respectfully dissent from part
II of the majority opinion.

I.

“The very foundation upon which Batson rests is the unquestioned premise that while ‘a
defendant has no right to a petit jury composed in whole or in part of persons of his own race, the
defendant does have the right to be tried by a jury whose members are selected pursuant to
nondiscriminatory criteria.’” Lancaster v. Adams, 324 F.3d 423, 434 (6th Cir. 2003) (alterations
removed) (quoting Batson v. Kentucky, 476 U.S. 79, 85–86 (1986)). I agree with the majority
that AEDPA’s deferential standards govern our review of Bryan’s Batson challenge. But I
disagree that we are constrained to find that Bryan is not entitled to relief, as the majority has
chosen to do. Regarding the duty of federal courts, the Supreme Court has been clear:
“[D]eference does not imply abandonment or abdication of judicial review. Deference does not
by definition preclude relief.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

Under AEDPA, Bryan is entitled to relief if he can show that the Ohio Supreme Court’s
decision “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)(2). In its
review of Bryan’s Batson claim, the Ohio Supreme Court concluded that “Bryan offer[ed] no
evidence of discriminatory intent.” State v. Bryan, 804 N.E.2d 433, 455 (Ohio 2004). Based on
the ample evidence of a race-based motive contained in the record, however, I believe that the
Ohio Supreme Court’s decision was unreasonable.
Nos. 15-3778/3834 Bryan v. Bobby Page 24

II.

The prosecution listed five reasons for striking potential juror Crystal Jones: (1) Jones’
demeanor and mannerisms indicated she was inconvenienced by jury duty; (2) Jones’ yes-or-no
answers to voir dire questions indicated that she was offended by the prosecutor’s questions; (3)
in her jury questionnaire, Jones failed to directly answer whether she believed that the criminal
justice system was fair; (4) during voir dire, Jones explained her concerns regarding fairness in
the criminal justice system by referring to The Ox-Bow Incident (which, in giving a purportedly
race-neutral explanation for striking Jones, the prosecutor incorrectly described as a book and
film in which an African-American was wrongfully accused of a crime and lynched); and (5) in
response to the prosecutor’s question about whether the veniremembers felt community pressure
to convict Bryan, Jones nodded her head affirmatively to indicate that she felt pressure. Bryan v.
Bobby, 114 F. Supp. 3d 467, 502–04 (N.D. Ohio 2015).

Initially, two of the purportedly race-neutral reasons the prosecutor gave for striking
Jones apply equally to white veniremembers who ultimately sat on the jury. First, the prosecutor
argued that Jones gave primarily yes-or-no answers, which indicated that she felt inconvenienced
and offended by the jury selection process. However, as the district court noted, there is ample
evidence that both Jones and other white veniremembers alike gave yes-or-no answers when
appropriate, and detailed responses when appropriate. Bryan, 114 F. Supp. 3d at 509–11.
Second, the prosecutor claimed that he struck Jones because she failed to directly answer
whether she believed the criminal justice system to be fair. Notwithstanding the fact that the
prosecutor never asked Jones this question directly, two white veniremembers expressed similar
opinions, and one white veniremember specifically stated that she thinks the justice system fails
to be fair sometimes. The prosecutor, however, did not take offense to that belief until it came
from Jones, an African-American veniremember. Evidence of this nature favors a finding that a
prosecutor’s reasons were, in fact, pretexual: “If a prosecutor’s proffered reason for striking a
black panelist applies just as well to a white panelist allowed to serve, that is evidence tending to
prove purposeful discrimination.” Miller-El, 545 U.S. at 232.

The prosecutor’s next proffered race-neutral reasoning concerned Jones’ response to a
jury questionnaire which asked whether she believed “an African-American can receive a fair
Nos. 15-3778/3834 Bryan v. Bobby Page 25

trial in our Criminal Justice System.” Bryan, 114 F. Supp. 3d at 501. Jones wrote that systems
are necessary to prevent the public from taking matters into their own hands, and cited The Ox-
Bow Incident. Id. During voir dire, Jones agreed with the prosecutor’s description of The Ox-
Bow Incident as a book and movie about a lynch mob rushing to judgment and hanging the
wrong man. Nowhere, however, in this retelling did the prosecutor describe the lynched,
innocent man as African-American. It was not until pressed to give a race-neutral reason for
striking Jones that the prosecutor injected race into Jones’ answer, where it did not previously
exist. Even accepting the prosecutor’s unilateral belief that Jones’ reference to The Ox-Bow
Incident indicated her concern about racial justice, it does not sufficiently show a lack of
discriminatory intent. Three white veniremembers also expressed concern with racial justice and
were not stricken. In my view, the only logical reason that the prosecutor struck Jones, and not
the other three white veniremembers, is because Jones, like Bryan, is African-American, and the
prosecutor feared that this commonality would make Jones more likely to vote in Bryan’s favor.
See Miller-El, 545 U.S. at 232.

Finally, the last explanation the prosecutor provides for striking Jones is that she
responded with an affirmative gesture when defense counsel stated: “I think we all kind of agree
that there’s a lot of pressure on a jury to convict.” Bryan, 114 F. Supp. 3d at 512. Not
surprisingly, this reason is in direct conflict with the prosecutor’s reasoning regarding Jones’
reference to The Ox-Bow Incident. Presumably, the prosecutor’s concern with Jones’ response
here is that she is biased in favor of the state—i.e., pressured to convict—but also, if we take into
consideration the prosecutor’s concern with her reference to The Ox-Bow Incident, biased in
favor of the defense. To allow both of these reasons to support a reasonable determination of the
facts, in my mind, is illogical.1

1
I note that the prosecutor also offered, as a race-neutral reason, that Jones’ mannerisms and demeanor
indicated that she was inconvenienced by the jury duty process. However, even agreeing with the majority that the
“trial court is best situated to evaluate both the words and demeanor of jurors who are peremptorily challenged,”
Majority Op. ante at 14 (quoting Davis v. Ayala, 135 S. Ct. 2187, 2201 (2015)), I find it difficult to accept the Ohio
Supreme Court’s finding as reasonable. Particularly, as the district court found, because the trial court failed to
engage in any on-the-record analysis of Jones’ demeanor. To me, the state supreme court’s decision was an
unsupported presumption that Jones’ demeanor was a valid reason to strike her.
Nos. 15-3778/3834 Bryan v. Bobby Page 26

III.

“Batson recognized that it is fundamentally unfair to permit racial considerations to drive
the use of peremptory challenges against jurors. When the prosecution strikes every potential
black [] juror, a reviewing court has a responsibility to ensure that the trial court’s denial of the
defendant’s Batson motion was not influenced by constitutional error.” Davis v. Ayala, 135 S.
Ct. 2187, 2218 (2015) (Sotomayor, J., dissenting). To view facts such as those presented in this
case as objectively reasonable, even within the constraints of AEDPA, abdicates our duty and
renders Batson superfluous.

The judgment of the district court granting Bryan habeas relief on his Batson claim
should be affirmed. I dissent as to part II of the opinion.