Campbell v. Bradshaw

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0079p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
-
ALVA E. CAMPBELL,
-
Petitioner-Appellant,
-
-
No. 09-3444
v.
,
>
-
Respondent-Appellee. -
MARGARET BRADSHAW, Warden,
-
N
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 05-00193—Walter H. Rice, District Judge.
Argued: October 6, 2011
Decided and Filed: March 20, 2012
Before: MARTIN, GIBBONS, and McKEAGUE, Circuit Judges.

_________________

COUNSEL
ARGUED: Justin C. Thompson, FEDERAL PUBLIC DEFENDER’S OFFICE,
Columbus, Ohio, for Appellant. Morgan A. Linn, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Justin C. Thompson, David
C. Stebbins, FEDERAL PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, Andrew
J. King, Kelly L. Schneider, OHIO PUBLIC DEFENDER’S OFFICE, Columbus, Ohio,
for Appellant. Morgan A. Linn, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee.
_________________

OPINION
_________________

JULIA SMITH GIBBONS, Circuit Judge. Petitioner–appellant Alva E.
Campbell appeals the district court’s order denying his 28 U.S.C. § 2254 petition for a
writ of habeas corpus seeking relief from his death sentence. For the following reasons,
we affirm the district court and deny Campbell’s petition.

1
No. 09-3444 Campbell v. Bradshaw Page 2

I.

The facts underlying Campbell’s habeas case, as determined by the Ohio
Supreme Court, are as follows:

In 1972, Campbell was convicted of murder in the first degree under
former R.C. 2901.01 and sentenced to life imprisonment. Twenty years
later, he was paroled. In 1997, Campbell was arrested in Franklin County
on a charge of aggravated robbery. He was held at the Jackson Pike Jail
pending arraignment.
On April 2, 1997, Deputy Sheriff Teresa Harrison was assigned to take
Campbell to court, a task complicated by Campbell’s confinement to a
wheelchair. Two weeks before, jail doctors had wrongly diagnosed
Campbell as having “hysterical paralysis”; in fact, he was faking. Not
knowing this, however, Harrison placed Campbell in a van and drove
him into downtown Columbus.
Around 12:30 p.m., Charles Dials was paying a ticket at the traffic
bureau of the Franklin County Municipal Court.
At about the same time, Deputy Harrison was parking the van in a
loading dock at the courthouse. Harrison got out of the van and began to
assist Campbell. Suddenly, Campbell attacked her. He beat her severely,
stole her service pistol, and fled.
Charles Dials had just left the traffic bureau and was driving west on
Fulton Street when Campbell ran outside. Campbell dashed into the
street, stopped Dials’s truck, and pulled open the driver’s door. He told
Dials, “I don't want to hurt you; just move over.” And Campbell drove
off, with Dials his prisoner.
Campbell drove to a K-Mart at Williams Road and South High Street. He
parked there and talked with Dials, telling him not to be nervous. Then
he drove back to Central Avenue, turned onto a side street, and parked
near a factory. There, Campbell took Dials’s money and made Dials
exchange clothes with him.
Next Campbell drove back to High Street, where he bought a forty-ounce
bottle of beer at a drive-through. He then returned to the K-Mart. There
he sat talking with Dials “probably a good 2 hours,” according to his
confession.
When a helicopter circled overhead, Campbell became nervous and
turned on the radio to hear the news. An announcer reporting on the
escape mentioned that Campbell had commandeered a red truck. Dials
No. 09-3444 Campbell v. Bradshaw Page 3

said, “That’s you, ain’t it?” Campbell admitted it was, and they talked a
while longer.
Campbell then moved the truck behind the K-Mart, driving around the
back lot three times before he finally chose a parking space. He said,
“Charlie, I got to get another car.” Then he told Dials to “get on the floor
board of his truck.” Dials obeyed, and Campbell shot him twice: once in
the face and once in the neck. The shots were fired from at least six
inches away, but no more than two or three feet. Campbell tried to cover
the corpse with Dials’s coat.
Campbell then drove around to K-Mart’s main lot and waited. While he
sat waiting, Katie Workman drove in. She parked near the truck and
began to get out of her car. As she opened her door, Campbell ran up to
her car and put the gun to her head. “Move over * * *,” he said. “I’ve just
killed one man.” Workman moved over, and Campbell screamed, “Give
me your money, your keys.” Workman threw her wallet and keys at
Campbell and jumped out of the car. Campbell immediately drove away
and went to the nearby Great Southern Shopping Center.
Around 3:20 or 3:30 p.m., James Gilliam was parked outside the Body
Fit gym at the Great Southern, waiting for someone. When Campbell
arrived, Gilliam was sitting in his car with the door open. Campbell
forced his way into the space between Gilliam’s car and another car.
Suddenly, Gilliam felt the car door pressing against his legs. Then he felt
a gun against his head and heard a man say: “[D]o you want to die? Get
in the car and move over.” Gilliam looked up and saw a man he later
identified as Campbell.
Gilliam pushed the door back at Campbell and stood up. Campbell said,
“Get in the car and move over. I’ve done killed two people, and I’m not
afraid to do it again.” Gilliam backed away, then turned and ran.
Gilliam’s keys weren’t in the ignition, so Campbell jumped back into
Workman’s car. He drove around for a while, at one point buying another
forty-ounce beer at a drive-through. Campbell drove off in haste, then
abandoned the car in an alley and fled on foot. Campbell hid in a tree, but
the tree’s owner saw and reported him. Police soon surrounded the tree.
Seeing now that he was cornered, Campbell dropped the gun and
surrendered. At 9:00 p.m., detectives from the Columbus Police
Department and the Franklin County Sheriff's Office interrogated him on
videotape. He gave the detectives a lengthy and detailed confession.

State v. Campbell, 738 N.E.2d 1178, 1186–87 (Ohio 2000).
No. 09-3444 Campbell v. Bradshaw Page 4

II.

A jury convicted Campbell of four counts of aggravated murder. Id. at 1187.
Count one was for aggravated murder by prior calculation and design; counts two
through four were for aggravated murder during the commission of a felony (i.e.,
aggravated robbery, kidnaping, and escape). Id. Each aggravated murder count carried
four death specifications. Id. The jury also convicted Campbell of ten other counts
related to the murders. Id. The jury recommended a death sentence. Id.

On direct appeal, the Ohio Supreme Court affirmed Campbell’s convictions, but
vacated his death sentence and remanded because the trial court had failed to comply
with the allocution provisions of the Ohio Rules of Criminal Procedure. Id. at 1187–90,
1205. Complying with these provisions on remand, the trial court once again sentenced
Campbell to death and the Ohio Supreme Court affirmed. State v. Campbell, 765 N.E.2d
334, 338, 344 (Ohio 2002). During the pendency of his direct appeal, Campbell filed a
petition for post-conviction relief in state court. The trial court denied relief, and the
Ohio Court of Appeals affirmed. State v. Campbell, No. 03AP-147, 2003 WL
22783857, at *1 (Ohio Ct. App. Nov. 25, 2003). The Ohio Supreme Court declined
Campbell’s request for further review. State v. Campbell, 809 N.E.2d 1158 (Ohio 2004)
(table).

Campbell then filed a petition for habeas relief in federal court pursuant to
28 U.S.C. § 2254, alleging twelve grounds for relief. Campbell v. Bradshaw, No. 2:05-
cv-193, 2007 WL 4991266, at *15–16 (S.D. Ohio Nov. 27, 2007). The magistrate judge
recommended that Campbell’s petition be denied. Id. at *64. The district court adopted
the recommendations of the magistrate judge with respect to all of Campbell’s claims,
with the exception of his claim that the trial court improperly prevented him from
presenting voluntary intoxication as a mitigating factor. Campbell v. Bradshaw, No.
2:05-cv-193, 2008 WL 657536, at *28–29, 33 (S.D. Ohio Mar. 7, 2008). The magistrate
judge subsequently recommended that this claim be denied because any error was
harmless, and the district court dismissed Campbell’s petition in its entirety. Campbell
v. Bradshaw, No. 2:05-cv-193, 2009 WL 773866, at *6–7, 13 (S.D. Ohio Mar. 18, 2009).
No. 09-3444 Campbell v. Bradshaw Page 5

On appeal to this court, Campbell raises four grounds for relief: (1) that his trial
counsel rendered ineffective assistance by introducing his incarceration records during
the penalty phase; (2) that his trial counsel rendered ineffective assistance during the
penalty phase by failing to present mitigating evidence regarding his juvenile
incarceration; (3) that his trial counsel rendered ineffective assistance by not moving for
a change in venue; and (4) that the trial court improperly prohibited him from arguing
voluntary intoxication as a mitigating factor.

III.

Because Campbell filed his petition for a writ of habeas corpus after the effective
date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), we review de
novo the district court’s conclusions on issues of law and on mixed questions of law and
fact and review its factual findings for clear error. Montgomery v. Bobby, 654 F.3d 668,
676 (6th Cir. 2011) (en banc). Under AEDPA, “a federal court shall not grant a habeas
petition with respect to any claim that was adjudicated on the merits in the state court
unless the adjudication resulted in a decision that: (1) was contrary to, or involved an
unreasonable application of, clearly established federal law as determined by the
Supreme Court; or (2) was based on an unreasonable determination of the facts in light
of the evidence presented to the state courts.” Id.; see 28 U.S.C. § 2254(d).

Under the “contrary to” clause, § 2254(d)(1), “a federal habeas court may grant
the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme
Court] on a question of law or if the state court decides a case differently than [the
Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor,
529 U.S. 362, 412–13 (2000). The Supreme Court has recently clarified that “review
under § 2254(d)(1) is limited to the record that was before the state court . . . .” Cullen
v. Pinholster, 131 S. Ct. 1388, 1398 (2011). In other words, “[i]f a claim has been
adjudicated on the merits by a state court, a federal habeas petitioner must overcome the
limitation of § 2254(d)(1) on the record that was before that state court.” Id. at 1400; see
Bray v. Andrews, 640 F.3d 731, 737 (6th Cir. 2011).
No. 09-3444 Campbell v. Bradshaw Page 6

Under the “unreasonable application” clause, § 2254(d)(1), a federal habeas
court may grant the writ only if the state court’s application of clearly established federal
law to the facts of the prisoner’s case was objectively unreasonable in light of the
evidence presented in the state court proceedings. Williams, 529 U.S. at 409–11. “[A]n
unreasonable application of federal law is different from an incorrect application of
federal law,” id. at 410, such that “even a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable.” Harrington v. Richter, 131 S. Ct. 770,
786 (2011). Finally, under the “unreasonable determination” clause, § 2254(d)(2),
federal courts must bear in mind that “a state-court factual determination is not
unreasonable merely because the federal habeas court would have reached a different
conclusion in the first instance.” Wood v. Allen, 130 S. Ct. 841, 849 (2010).

Section 2254(d), as amended by AEDPA, is a “purposefully demanding
standard.” Montgomery, 654 F.3d at 676 (citing Harrington, 131 S. Ct. at 786).
“Section 2254(d) reflects the view that habeas corpus is a guard against extreme
malfunctions in the state criminal justice systems, not a substitute for ordinary error
correction through appeal.” Harrington, 131 S. Ct. at 786 (internal quotation marks
omitted). To obtain relief, a habeas petitioner must “show that the state court’s ruling
on the claim being presented in federal court was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Id. at 786–87. This “highly deferential standard” requires
that determinations made in state court “be given the benefit of the doubt.” Pinholster,
131 S. Ct. at 1398 (internal quotation marks omitted).

IV.

Campbell’s first three grounds for relief rest on ineffective assistance of counsel.
To prevail on an ineffective assistance of counsel claim, Campbell must demonstrate
that his counsel’s performance was deficient and that he suffered prejudice as a result.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Foust v. Houk, 655 F.3d 524, 533
(6th Cir. 2011). To show deficiency, Campbell must overcome the “strong[]
presum[tion]” that his counsel “rendered adequate assistance and made all significant
No. 09-3444 Campbell v. Bradshaw Page 7

decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at
690. To demonstrate prejudice, Campbell must “show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. In other words, he must show
a “‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” Pinholster, 131
S. Ct. at 1403 (quoting Harrington, 131 S. Ct. at 791).

Because all of Campbell’s claims regarding ineffective assistance were
adjudicated on the merits by the Ohio state courts either during direct appeal or on post-
conviction review, § 2254(d) governs our standard of review. See Sutton v. Bell, 645
F.3d 752, 755 (6th Cir. 2011). When analyzing a Strickland claim under § 2254(d), our
review is “‘doubly deferential.’” Pinholster, 131 S. Ct. at 1403 (quoting Knowles v.
Mirzayance, 129 S. Ct. 1411, 1420 (2009)). The key question “‘is whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.’” Foust,
655 F.3d at 533–34 (emphasis added) (quoting Harrington, 131 S. Ct. at 788).

A.

Campbell’s first ineffective assistance of counsel claim involves his counsel’s
decision to admit his entire adult incarceration record (Defense Exhibits C and J) into
evidence during the penalty phase.1 Campbell raised this claim on direct appeal to the
Ohio Supreme Court. In rejecting this claim, the Ohio Supreme Court stated the
following:

[Campbell] argues that the defense should not have introduced
Campbell’s prison records. However, Dr. Smalldon consulted and relied
upon those records in diagnosing Campbell. Campbell does not contend
that the defense should have dispensed with Smalldon’s testimony, which
was critical to the case for life, just to keep his prison records out of the
trial.

1
Defense Exhibit J is Campbell’s prison record from the Ohio Department of Rehabilitation and
Correction, where he was incarcerated for over twenty years for his 1972 murder conviction. Defense
Exhibit C is Campbell’s jail record from the Franklin County Correctional Facility, where he was
incarcerated prior to trial in this case. Although Campbell refers only to Exhibit C in his opening brief,
he clarified in his reply brief that his claim actually extends to both Exhibits C and J—that is, his entire
incarceration record.
No. 09-3444 Campbell v. Bradshaw Page 8

[Campbell also] argues that no rational attorney would attempt to present
good behavior in prison as a mitigating factor in a case like this, where
the murder was committed after the defendant’s escape from jail. We
disagree. Reasonable attorneys could easily conclude that no legitimate
mitigating factor should be withheld from the jury.

Campbell, 738 N.E.2d at 1200.

Campbell contends that the introduction of his incarceration records from both
the state penitentiary and the county jail allowed the jury to learn damaging facts about
his background during the penalty phase and that much of this evidence would otherwise
have been inadmissible. Campbell argues that the admission of these records allowed
the State, inter alia, to reveal in its rebuttal proof facts surrounding his prior murder
conviction and parole eligibility, to discuss Campbell’s poems about an escaped
prisoner, and to demonstrate that he had possessed contraband and presented a
continuing threat to himself and others while incarcerated. Campbell’s counsel objected
to the use of some of the evidence the prosecution introduced in rebuttal, but the trial
judge overruled the objection on grounds that Campbell’s counsel had opened the door
to such testimony by introducing the incarceration records. Campbell does not contest
that his prison records contained positive as well as negative information; rather, he
argues that counsel should have elicited this positive information through live testimony.

Campbell has not shown deficiency and prejudice regarding the admission of his
incarceration records. Campbell characterized his counsel’s decision to introduce the
records as “wholesale laziness.” A review of the trial transcript, however, indicates
otherwise. During his opening statement at the penalty phase, Campbell’s counsel
stated:

[Y]ou will hear that a lot of bad things have happened to Alva,
but you will also hear that Alva did a lot of bad things to other people
and we’re going to present that to you.
We’re going to present his long history of criminal behavior and
his anti-social behavior.
...
We want you to hear all of that because that’s the person you are
here to judge. We’re not going to hide that from you; and as we present
No. 09-3444 Campbell v. Bradshaw Page 9

this evidence, you will hear a lot of other very bad things about Alva, but
you as jurors have to have the courage to listen to all of that and see how
it fits in with this whole issue of who Alva is today and how that fits in
with the argument that this person may be bad but we don’t kill persons
just because they are bad.

His counsel struck a similar chord during closing argument, stating that “[Campbell]’s
been bad. But we don’t kill every bad man . . . . Look at all the records and try to
understand how Alva became the way he is. After you consider that, I think you will
think that the life sentence is the appropriate sentence.”

It appears that the decision to introduce the incarceration records was not borne
of “laziness” but was rather part of a strategic effort to be candid with the jury about
Campbell’s past in an effort to gain credibility and, ultimately, obtain a life sentence for
Campbell. In addition, in introducing all of Campbell’s incarceration records, counsel
sought to contrast Campbell’s records from the state penitentiary with his records from
the county jail to show that Campbell, while perhaps not adjusting well in a local
facility, was well-suited for placement in a state penitentiary. Campbell’s counsel made
this decision when faced with overwhelming evidence that Campbell had committed a
terrible crime and had a troubled background that would be difficult to present in a
positive light. Ultimately, counsel’s approach did not convince the jury. However, we
must take care to “eliminate the distorting effects of hindsight” when evaluating attorney
performance. Strickland, 466 U.S. at 689. Because “there is no expectation that
competent counsel will be a flawless strategist or tactician, an attorney may not be
faulted for a reasonable miscalculation or lack of foresight . . . .” Harrington, 131 S. Ct.
at 791. In short, an ineffective strategy does not perforce demonstrate deficient
assistance of counsel.

Campbell’s repeated citation to Rickman v. Bell, 131 F.3d 1150 (6th Cir. 1997),
is unavailing. In Rickman, we found that defense counsel had been deficient because he
had “convey[ed] to the jurors an unmistakable personal antagonism toward [his client]”
and had displayed a “degree of hostility” toward his client that was “nothing short of
shocking and professionally outrageous.” Id. at 1156, 1158, 1159. Campbell does not
No. 09-3444 Campbell v. Bradshaw Page 10

allege, and our review of the record does not reveal, anything similar in kind or degree
to the antagonizing, outrageous behavior that marked counsel’s performance in Rickman.
Therefore, we cannot say, especially under the doubly deferential review that § 2254(d)
requires, that it was unreasonable to find that Campbell’s counsel was not deficient.

But even if the decision to introduce the incarceration records did constitute
deficient performance, it was not unreasonable for the state court to find that Campbell
suffered no prejudice. Dr. Jeffrey Smalldon, the defense’s expert during the penalty
phase and to whose testimony Campbell does not now object, reviewed all of
Campbell’s incarceration records prior to his testimony. On the basis of these records,
Smalldon described Campbell’s adjustment at the county jail as “poor.” He recounted
that “from beginning to end [Campbell] was viewed as a very serious security risk” at
that facility. Smalldon continued:

I’ve reviewed the copies of letters that he wrote to a woman
outside prison where he attempted to engage her collaboration in a sort
of escape scheme that would have involved her bringing a saw blade into
the prison.
I’m aware that the deputies at the jail concluded that he had been
digging caulk out in his cell at one point. Though there’s also indicated
in the record some uncertainty at one point whether the digging that they
thought they saw had been done by him . . . .
There were at least a couple of documented verbal altercations,
at least one of which involved a pretty explicit verbal threat from Mr.
Campbell to one of the officers.
I would describe his adjustment there as overall poor.

Smalldon further testified that Campbell had been convicted when he was nineteen for
shooting a law enforcement officer with the intent to kill, and then only four and a half
months after his release, was again charged with and convicted of first-degree murder.
Thus, Smalldon testified before the jury about much of the damaging content of the
incarceration records to which Campbell now objects. Had these records not been
admitted, the jury still would have heard that Campbell posed a serious security risk
while incarcerated, threatened prison staff, actively contemplated escape, and had
previously been convicted of murder. The incarceration records may have lent more
detail to Campbell’s checkered past in prison and jail, but they introduced little that was
No. 09-3444 Campbell v. Bradshaw Page 11

not already before the jury.2 We therefore find that Campbell did not suffer prejudice
because he has not shown a “‘substantial’ . . . likelihood of a different result” had the
incarceration records not been admitted. See Pinholster, 131 S. Ct. at 1403 (quoting
Harrington, 131 S. Ct. at 791).

B.

Campbell also alleges ineffective assistance of counsel on the grounds that
counsel left a substantial gap in the mitigation evidence by not introducing evidence of
the detrimental impact of Campbell’s lengthy period of juvenile incarceration. In post-
conviction proceedings, Campbell submitted the affidavit of Dr. Clemens Bartollas, who
averred that mitigation factors important in forming Campbell’s character and
behavior—factors that included his juvenile incarceration—were not adequately
presented to the jury. See Campbell, 2003 WL 22783857, at *8. The Ohio Court of
Appeals rejected this contention on the following grounds:

Although Drs. Haskins and Bartollas believe a better job could
have been done presenting defendant’s psychological background, they
have the benefit of perfect hindsight, the distorting effect of which must
be avoided . . . . Moreover, the affidavits of Drs. Haskins and Bartollas
are largely cumulative of, or alternative to, the mitigation evidence
presented by defense counsel and thus do not support substantive
grounds for an ineffective-assistance claim.
...
“[W]hen, as here, counsel has presented a meaningful concept of
mitigation, the existence of alternate or additional mitigation theories
does not establish ineffective assistance.” The petition and supporting
documents reveal defendant has not set forth sufficient operative facts to
show defense counsel violated an essential duty to defendant or rendered
deficient assistance in the penalty phase of defendant’s capital trial.
Further, the petition and supporting documents do not show
defendant was prejudiced as a result of counsel’s failure to present
additional mitigation witnesses. The trial court found defense counsel did
an “excellent” job in presenting all the points the jury needed to consider

2
Further, we note that had counsel selected only positive examples from the incarceration records
and asked live witnesses to explain them (e.g., prison staff with whom Campbell had a positive rapport),
it is not clear that Campbell’s other “bad acts” in prison would not have come in on rebuttal anyway. As
we have held when analyzing the potential for harmful rebuttal evidence under Ohio law, “every positive
argument by a defendant potentially opens the door to a more-harmful response.” Morales v. Mitchell, 507
F.3d 916, 948 (6th Cir. 2007) (internal quotation marks omitted); see also Sutton, 645 F.3d at 763–64.
No. 09-3444 Campbell v. Bradshaw Page 12

for purposes of mitigation, and, in light of the overwhelming aggravating
circumstances, there would have been no reasonable probability of a
different outcome. Significantly, the Ohio Supreme Court found the
defense presented an “impressive and substantial case in mitigation,” but
ultimately held the aggravating circumstances outweighed the mitigating
factors beyond a reasonable doubt and the sentence of death was
appropriate.
Here, because the affidavits defendant submitted . . . are largely
cumulative to the mitigation evidence defense counsel presented, and in
light of the Supreme Court’s holding in Campbell II that the aggravating
circumstances outweighed the mitigating factors beyond a reasonable
doubt, we conclude defendant has not shown a reasonable probability
exists that the outcome of the penalty phase of defendant’s trial would
have been different, such that the jury would conclude the death sentence
is not warranted.

Campbell, 2003 WL 22783857, at *9–10 (internal citations omitted). Thus, the Ohio
Court of Appeals viewed much of the mitigation evidence of Campbell’s juvenile years
as cumulative to the information already before the jury, especially in light of the
aggravating circumstances of Campbell’s crime, and on those grounds found no
prejudice.

Campbell argues that (1) his lengthy period of juvenile incarceration was
overwhelmingly negative; (2) defense counsel did not put forth evidence of this period
in any depth during the penalty phase; and (3) defense counsel’s failure to introduce this
evidence constituted ineffective assistance of counsel because it minimized the
mitigating effect of his undeniably horrible childhood. We address each point in turn.

According to Bartollas’s affidavit,3 Campbell did indeed have an
overwhelmingly negative experience during his teenage years. Bartollas described
Campbell as a “state-raised youth,” who “spent most of his adolescent years in various
types of out-of-home placements.” He noted that Campbell claimed he had received
sexual pressure from peers and abuse from staff at the facilities in which he was placed.

3
Bartollas both submitted an affidavit during state post-conviction proceedings and gave live
testimony at the federal evidentiary hearing. However, as this claim was adjudicated on the merits in state
court, our review “is limited to the record that was before the state court . . . .” Pinholster, 131 S. Ct. at
1398. We therefore only consider Bartollas’s affidavit, which was before the state court on post-conviction
review. We similarly cannot review the testimony that defense counsel William Mooney gave at the
federal evidentiary hearing because it was not part of the state court record.
No. 09-3444 Campbell v. Bradshaw Page 13

Bartollas described that Campbell had a “rather volatile behavior pattern” in which he
defied authority. Bartollas further noted that Campbell reported being physically
assaulted while at the facilities and had been discharged due to his behavioral problems
and had run away on numerous occasions. Campbell had also engaged repeatedly in
inappropriate sexual activity with other boys; however, it was unclear whether Campbell
did so on his own initiative or only after being coerced. On this record, we agree with
Campbell that his placement in juvenile facilities was largely negative.

The next question is to what extent this negative history was presented to the jury
during the penalty phase. Smalldon did mention Campbell’s placements during his
adolescent years, quoting at times from records from these facilities during his
testimony. However, we agree that Smalldon did not describe the negative conditions
that Campbell faced—and the negative reactions that Campbell had to those
conditions—in the juvenile facilities. And it does not appear that Campbell’s counsel
had any strategic reason to ignore the evidence of Campbell’s juvenile placements,
especially because they were aware, through Smalldon’s testimony, that such evidence
existed.

But even if counsel was deficient in this regard, Campbell has failed to show that
the state court, in finding no prejudice, unreasonably applied Strickland and its progeny.
First, we cannot say that the state court’s finding that evidence of Campbell’s juvenile
placements was cumulative was an unreasonable application of Strickland. Disturbing
as it was, the evidence of Campbell’s juvenile placements pales in comparison to the
utterly awful conditions of his childhood home—conditions that included repeated
instances of rape, incest, neglect, and physical and emotional abuse—and which were
described at length to the jury during sentencing. Therefore, much of the evidence of
the juvenile placements does not “differ in a substantial way—in strength and subject
matter—from the evidence actually presented at sentencing.” See Broom v. Mitchell,
441 F.3d 392, 410 (6th Cir. 2006) (internal quotation marks omitted). And as we have
repeatedly held, “the failure to present additional mitigating evidence that is merely
cumulative of that already presented does not rise to the level of a constitutional
No. 09-3444 Campbell v. Bradshaw Page 14

violation.” Nields v. Bradshaw, 482 F.3d 442, 454 (6th Cir. 2007) (internal quotation
marks omitted); Broom, 441 F.3d at 410.4

Second, to the extent that the evidence of juvenile placements may not be
cumulative, Campbell still cannot overcome the fact that much of the information
contained in the evidence not presented was adverse. According to Campbell, the failure
to include information regarding his juvenile placements allowed the prosecution to
imply that he had been rescued from his horrible childhood by age ten or eleven and that
he had been given educational and social opportunities thereafter. This much is true: the
trial court, which acknowledged Campbell’s abusive home environment, noted that
Campbell “was removed from the [abusive home] environment at the age of ten or
eleven,” subsequently “received educational opportunities” at various placements, and
demonstrated that his “academic work and social progress were good . . . .” It does
appear the prosecution was able to use the lack of evidence about Campbell’s juvenile
placements to its advantage.

However, “mitigating value must be weighed against the potential harm its
introduction might have done.” Sutton, 645 F.3d at 763. Here, had evidence of
Campbell’s juvenile placements been presented, the prosecution might not have been
able to minimize the mitigating evidence of his childhood years, but it certainly would
have seized upon Campbell’s serious behavioral problems that persisted well into his
teenage years. As Bartollas’s affidavit demonstrates, Campbell was both victim and
victimizer during his placement at the juvenile facilities. Campbell was described as
having “explosive episodes,” a resistance to authority figures, and a “rather volatile
behavior pattern.” He was discharged from facilities because he had “an unfavorable
influence with the younger boys, as well as[] his peers.” Campbell also had serious
problems regarding his sexual behavior. According to one report, he was “literally

4
We also note that Campbell inaptly rests much of his argument on cases where the federal court
weighed the mitigating and aggravating circumstances de novo, rather than evaluating the reasonableness
of the state court’s weighing. Here, because the state court addressed prejudice and did not apply an
incorrect legal standard, our review is not de novo but rather employs AEDPA’s reasonableness
framework. Campbell’s citations to Wiggins v. Smith, 539 U.S. 510 (2003) and Williams v. Taylor, 529
U.S. 362 (2000) are accordingly of limited persuasive force. See Sutton, 645 F.3d at 765.
No. 09-3444 Campbell v. Bradshaw Page 15

molesting the other boys almost every opportunity he could . . . .” Therefore, had a
complete picture of Campbell’s juvenile placements been presented, the jury would have
heard evidence not only of the conditions of the facilities and their effect on Campbell,
but also of Campbell’s inappropriate and destructive behavior while at those facilities.
We have often found that the existence of this kind of adverse information, contained
within mitigating evidence that was not presented, can preclude a finding of prejudice.
See, e.g., Sutton, 645 F.3d at 763–64 (upholding finding of no prejudice where evidence
not admitted contained descriptions of extensive drug abuse and a discharge from the
Navy); Carter v. Mitchell, 443 F.3d 517, 531–32 (6th Cir. 2006) (upholding finding of
no prejudice where evidence not presented would have revealed history of, inter alia,
“drug use and alcohol abuse, and [a] notoriously quick temper and violent character”);
Scott v. Mitchell, 209 F.3d 854, 880–81 (6th Cir. 2000) (upholding finding of no
prejudice where evidence not admitted contained evidence of “robbery, assault,
kidnaping, and other violent acts upon innocent citizens”) (internal quotation marks
omitted). Further, the aggravating circumstances of Campbell’s crime, including his
prior murder conviction and his felony-murder specifications, Campbell, 738 N.E.2d at
1187, 1202–03, mean that “only evidence with an overwhelming net mitigating value
could produce a reasonable probability of a life sentence.” See Sutton, 645 F.3d at 763
(emphasis added). However helpful the information contained in Bartollas’s affidavit
might have been, it plainly contains no such overwhelming mitigating value.

Third, it bears noting that when Campbell was convicted in this case, he was in
his mid-forties. He had already been convicted of shooting a law enforcement officer
with intent to kill, had already been convicted of murder, and had spent nearly all of his
adult life in prison. Campbell’s counsel presented “an impressive and substantial case
in mitigation,” Campbell, 738 N.E.2d at 1191, particularly with respect to his childhood
home, which the trial court agreed was “an abusive environment which undeniably
affected [Campbell’s] personality.” Thus, the mitigation evidence of Campbell’s terrible
childhood was particularly strong, and Campbell’s decades in prison far removed him
from the trauma of his teenage years. These factors also weigh against a finding of
prejudice.
No. 09-3444 Campbell v. Bradshaw Page 16

On this record, we find that the state court did not unreasonably apply Strickland
in finding that Campbell suffered no prejudice as a result of not presenting mitigating
evidence regarding Campbell’s placement in juvenile facilities.

C.

Campbell’s final ineffective assistance of counsel claim is that his counsel
rendered deficient performance by failing to move for a change in venue. Campbell
claims that his crime was “probably the most heavily publicized and infamous one” in
county history and the subject of extensive, negative pretrial publicity. He cites
prospective juror awareness of the facts of the case as well as television and newspaper
coverage. The Ohio Court of Appeals rejected this claim. The court appeared to
recognize that Campbell’s case drew extensive pretrial media attention, but noted that
“even where there is extensive pretrial publicity, a change of venue is not automatically
granted.” Campbell, 2003 WL 22783857, at *6. The court then appropriately examined
the record on voir dire:

The voir dire in this case covered nine days, during which the
prospective jurors were questioned extensively about the pretrial
publicity and their ability to impartially reach a verdict based on the
evidence presented in court. During voir dire, the court excused several
jurors who it determined could not be impartial or who leaned toward the
death penalty. The jurors who were empanelled indicated they could try
the case fairly. Although such assurances by prospective jurors are not
dispositive of the defendant’s right to an impartial jury, the empanelling
of the jury with the defense having used only four of six available
peremptory challenges belies defendant’s claim the jury could not be
impartial due to the pretrial publicity. While it remained open for
defendant to demonstrate a juror had actually formed an opinion, thereby
raising the presumption of partiality, neither the petition nor supporting
documents defendant submitted present sufficient operative facts
demonstrating pretrial publicity prejudiced the empanelled jury.
Finally, the trial court stated that even if defense counsel had
moved for a change of venue, the court would have denied the motion
“because, in [the court’s] mind, a very fair and objective jury was
selected.” Given the discretion accorded to the trial court in granting a
change of venue, defendant has not shown the outcome would have been
different if defense counsel had moved to change venue.
No. 09-3444 Campbell v. Bradshaw Page 17

Id. at *6–7 (internal citations omitted).

This conclusion was not an unreasonable application of Strickland. Although the
record before us is insufficient to determine whether the failure to move for a change of
venue was a strategic decision or not, even if counsel was deficient, it was not
unreasonable for the state court to find that Campbell suffered no prejudice.

It is well established that if prejudicial pretrial publicity jeopardizes a defendant’s
right to a fair trial by an impartial jury, the court should grant the defendant a change in
venue. See Irvin v. Dowd, 366 U.S. 717, 722–24 (1961); Foley v. Parker, 488 F.3d 377,
387 (6th Cir. 2007). Prejudice can be presumptive or actual. Foley, 488 F.3d at 387.
“Presumptive prejudice from pretrial publicity occurs where an inflammatory, circus-like
atmosphere pervades both the courthouse and the surrounding community” and “is rarely
presumed.” Id. In the absence of presumed prejudice, “the trial court has a
responsibility to confront the fact of the publicity and determine if the publicity rises to
the level of ‘actual prejudice.’” Ritchie v. Rogers, 313 F.3d 948, 962 (6th Cir. 2002).
“[A] searching voir dire of the prospective jurors is the primary tool to determine if the
impact of the publicity rises to th[e] level” of actual prejudice. Id. At voir dire, the
court must examine the jurors’ statements to determine if there is a community-wide
sentiment against the defendant; however, “[n]egative media coverage by itself is
insufficient to establish actual prejudice.” Foley, 488 F.3d at 387. When evaluating
jurors, “mere prior knowledge of the existence of the case, or familiarity with the issues
involved, or even some preexisting opinion as to the merits, does not in and of itself raise
a presumption of jury taint . . . .” DeLisle v. Rivers, 161 F.3d 370, 382 (6th Cir. 1998).
Rather, “[t]he relevant question is ‘did [the] juror swear that he could set aside any
opinion he might hold and decide the case on the evidence, and should the juror’s
protestation of impartiality have been believed.’” Foley, 488 F.3d at 387 (second
alteration in original) (quoting Patton v. Yount, 467 U.S. 1025, 1036 (1984)). If a biased
juror was seated who should have been dismissed for cause, we must reverse the
conviction. Hughes v. United States, 258 F.3d 453, 463 (6th Cir. 2001).
No. 09-3444 Campbell v. Bradshaw Page 18

We acknowledge that Campbell’s case was featured prominently in local media
coverage and that most of the prospective jurors were aware of the case. However,
Campbell has not shown sufficient facts to demonstrate presumptive prejudice based on
pretrial publicity because we “rarely presume[]” prejudice based on pretrial publicity,
and Campbell has not shown the that there was “an inflammatory, circus-like
atmosphere” that would support finding prejudice in this case. See Foley, 488 F.3d at
387. Further, Campbell has failed to show that he has suffered actual prejudice.
Counsel and the trial court carefully questioned prospective jurors during voir dire
concerning their knowledge of the case from news reports and whether they could judge
the case based solely on the evidence that would be presented in court. A number of
prospective jurors indicated that they could not, and were excused. Notably, Campbell
has not identified any juror who was actually seated that indicated an inability to set
aside any prior knowledge about the case or to judge the case fairly and impartially. Cf.
Hughes, 258 F.3d at 458, 464 (finding juror bias and reversing conviction where juror
clearly stated that she could not be fair and neither counsel nor the trial judge
responded). It does appear that some of the prospective jurors inappropriately discussed
the case during voir dire. However, evidence of inappropriate discussions among jurors,
without more, does not demonstrate actual bias. See United States v. Gaitan-Acevedo,
148 F.3d 577, 590–91 (6th Cir. 1998) (reversal not warranted where jurors, contrary to
court’s instruction, had discussed the case, commented on the number of cars owned by
one defendant, and joked about convicting the defendant so they could go home, on
grounds that the jurors’ comments did not evidence actual bias).

As Campbell has not demonstrated any presumptive or actual prejudice based on
pretrial publicity, he suffered no prejudice from his counsel’s failure to move for a
change in venue. We therefore find that the state court did not unreasonably apply
Strickland.
No. 09-3444 Campbell v. Bradshaw Page 19

V.

Campbell’s final claim is that the trial court improperly prohibited him from
arguing voluntary intoxication as a mitigating factor. This claim is rooted in an
interaction between the trial judge and counsel regarding an instruction on voluntary
intoxication:

The Court: Motion to include alcohol and/or drug impairment. Again,
that’s an instruction.
And let me just say this: I probably would overrule that simply
because in my mind and view of the evidence, I’ll listen to you, but there
was no alcohol or drug impairment. He had a 40 ounce.
I’ve viewed the tape [of Campbell’s confession]. I think he was
perfectly sober, and certainly there has to be some evidence that he was
impaired before I would even consider that and I don’t see it, and so I
probably wouldn’t, probably wouldn’t allow it in the instruction[s] and
wouldn’t allow you to argue it because it just ain’t there.
...
Defense Counsel: Well, we haven’t heard from our psychologist yet
so—
The Court: All right. Maybe that may differ, but all I’ve [got] right now
is he had one 40 ounce in three hours, and that’s all I know.
I watched him talk for an hour and a half myself; and, of course,
I listened to the detective.
So there has to be something stronger than that for me to allow
you to argue that as a mitigating factor, but I’ll certainly listen to . . . Dr.
Smalldon.

The Ohio Supreme Court found that the trial court had erred, given the evidence that
Campbell had consumed significant quantities of alcohol prior to committing the crime.
The Ohio Supreme Court reasoned as follows:

Campbell asked the trial court to instruct the jury in the penalty
phase that voluntary intoxication is a potential mitigating factor. The
judge refused because he did not find sufficient evidence of voluntary
intoxication to raise a jury issue.
We disagree with the trial judge’s reasoning. There was evidence
that Campbell drank forty ounces of beer during the offense. Whether or
not he was intoxicated according to any particular definition is beside the
point. The fact that he had a substantial amount of alcohol in his system
was a circumstance of the offense and was relevant to mitigation . . . .
No. 09-3444 Campbell v. Bradshaw Page 20

However, a trial court is not required to instruct on specific
nonstatutory mitigating factors. Certainly nothing in the penalty-phase
instructions precluded the jury from considering [Campbell’s] alcohol
consumption. In fact, the trial court instructed the jury to consider,
without limitation, “any other factors that are relevant to the issue of
whether the offender should be sentenced to death” as mitigating factors.
We have held repeatedly that such an instruction is sufficient to allow the
jury to consider all the mitigating evidence before it. Thus, the trial
judge was correct in refusing to instruct specifically on voluntary
intoxication, even though “erroneous reasons were assigned as the basis”
for that refusal.

Campbell, 738 N.E.2d at 1192 (internal citations omitted). The district court concluded
that the trial court’s decision to preclude Campbell’s counsel from arguing that his
intoxication was a possible mitigating factor violated his Eighth Amendment rights to
have the jury consider all potential mitigating evidence and remanded to the magistrate
judge to determine if the trial court’s decision constituted harmless error. Campbell,
2008 WL 657536, at *28–29. On remand, the magistrate judge concluded that the trial
judge’s error in precluding the argument for mitigation purposes was harmless because
the mitigating impact of the evidence was unlikely to have resulted in a different
sentence. Campbell, 2009 WL 773866, at *7–13. The district court agreed with this
conclusion. Id. at *1–6.

It appears that, when considering the trial court’s ruling, the Ohio Supreme Court
misconstrued Campbell’s argument. Although recognizing that Campbell argued that
“the trial judge precluded him from presenting evidence of [the] mitigating factor[ of]
. . . voluntary intoxication,” the Ohio Supreme Court rejected this claim on grounds that
the trial court was not required to instruct on specific non-statutory mitigating factors.
Campbell, 738 N.E.2d at 1190, 1192. However, Campbell broadly claims that the trial
court effectively prevented him from arguing voluntary intoxication—not that the trial
court merely failed to give an instruction on voluntary intoxication. Because, through
No. 09-3444 Campbell v. Bradshaw Page 21

no fault of his own, the state courts did not reach the core of Campbell’s argument, we
review this claim de novo.5 See Jells v. Mitchell, 538 F.3d 478, 505 (6th Cir. 2008).

We agree with the district court that the trial court improperly prohibited
Campbell from arguing voluntary intoxication as a mitigating factor. Campbell, 2008
WL 657536, at *28–29. During a sentencing hearing in a capital case, the jury must be
permitted to consider any relevant mitigating factor. Tibbets v. Bradshaw, 633 F.3d 436,
446 (6th Cir. 2011) (citing Eddings v. Okla., 455 U.S. 104, 112 (1982)). Here, there is
ample evidence that Campbell had “a substantial amount” of beer prior to the
commission of the crime. Campbell, 738 N.E.2d at 1192. Furthermore, Campbell’s
sister testified that their parents frequently got drunk and fought, and social service
records reflected that the parents were heavy drinkers. Smalldon diagnosed Campbell
as having a history of alcohol abuse, which likely reflected alcohol dependence, and an
antisocial personality disorder. Smalldon also testified that, when drinking, Campbell’s
“thoughts would turn to his hatred for his father,” and speculated that Campbell may
have experienced a “rage reaction” when he killed Dials. Despite this evidence, the trial
judge did not allow Campbell to argue voluntary intoxication, stating that “I probably
wouldn’t, probably wouldn’t allow [voluntary intoxication] in the instruction[s] and
wouldn’t allow you to argue it because it just ain’t there.” (emphasis added). Because
this mitigating evidence was both ample and relevant, it was error to prohibit Campbell
from introducing it. See Tibbets, 633 F.3d at 446.

The question is thus whether the trial court’s error was harmless or prejudicial.
An error is not harmless if it had a substantial and injurious effect or influence in
determining the outcome of the case. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993);
Doan v. Carter, 548 F.3d 449, 459 (6th Cir. 2008). “Even if there is only ‘grave doubt
about whether a trial error of federal law has substantial and injurious effect or influence

5
In so finding, we reject the Warden’s claim that Campbell failed to raise this issue properly
before the district court. We agree with the district court that Campbell’s reference to this argument in his
initial habeas petition, albeit rather fleeting, is sufficient to allow review on the merits. See Campbell, 2008
WL 657536, at *27. Further, Campbell’s traverse significantly expanded on this claim—giving the
Warden ample opportunity to address the merits of this claim in response to the magistrate judge’s Report
and Recommendation.
No. 09-3444 Campbell v. Bradshaw Page 22

in determining the jury’s verdict, that error is not harmless.’” Fields v. Howes, 617 F.3d
813, 823 (6th Cir. 2010) (quoting O’Neal v. McAninch, 513 U.S. 432, 436 (1995),
overruled on other grounds by Howe v. Fields, 132 S. Ct. 1181 (2012)). To determine
the effect of an error, the question is “whether the guilty verdict actually rendered in this
trial was surely unattributable to that error.” Doan, 548 F.3d at 459 (internal quotation
marks omitted).

The trial court’s error did not have a substantial and injurious effect or influence
on Campbell’s death sentence. Campbell argues that, because of the trial court’s ruling,
he was unable to argue that “[a]lcohol was the nexus around which Campbell’s rage, his
dysfunctional thinking, and his childhood scars coalesced,” that his “feelings of rage and
hatred for his father . . . roiled to the surface when Campbell drank alcohol,” and that his
“rage issues surfaced on the day he shot Dials.” In analyzing prejudice, however, we
must first bear in mind what Campbell was allowed to argue. He put on detailed
evidence of his abusive, alcoholic father and the broken home in which he was raised.
He put on evidence of his mother’s neglect and alcoholism. He put on evidence of his
feelings of rage when he thought about his father. And he put on evidence of his
diagnosis of alcohol dependence and antisocial personality disorder. On this record, an
inability to argue voluntary intoxication during the commission of his crime was not
ostensibly prejudicial, as the jury already had before it ample evidence of the destructive
effects of alcohol in Campbell’s life and its general effect on his development and
personality.

Further, Campbell’s attempts to show that his “rage issues surfaced on the day
he shot Dials” due to his alcohol intake are undercut by the record itself, in which
Smalldon explained that Campbell refused to talk in any depth about how a “rage
reaction” could have been linked to his shooting of Dials. As the district court found,
“[Campbell] himself cast doubt” upon the theory that he experienced any type of “rage
reaction” during the commission of his crime. Campbell, 2009 WL 773866, at *5. In
any event, Campbell has not presented any evidence, whether introduced at trial or
during post-conviction proceedings, showing that his alcohol intake was such that it
No. 09-3444 Campbell v. Bradshaw Page 23

would have exacerbated his underlying personality disorders and inhibited his impulse
control.

And even if we assume that Campbell was voluntarily intoxicated to a point that
it affected his actions on the day in question, we are unconvinced that prohibiting him
from arguing intoxication had a substantial influence on the jury’s sentence of death.
Voluntary intoxication under Ohio law is—at most—a “weak mitigating factor.” State
v. Turner, 826 N.E.2d 266, 282 (Ohio 2005); State v. Fitzpatrick, 810 N.E.2d 927, 944
(Ohio 2004); see also Campbell, 2009 WL 773866, at *6. To distinguish this black letter
law, Campbell argues that he did not seek to introduce evidence of voluntary
intoxication as a stand alone factor, but rather to show its “synergistic effect” on his
behavior and his resultant “rage reaction.” And he relies upon State v. Haight, 649
N.E.2d 294, 315 (Ohio Ct. App. 1994), to show that intoxication can be given
“significant” weight. But Haight is an intermediate appellate court decision, followed
by at least eight decisions of the Ohio Supreme Court holding that voluntary intoxication
merits little weight in mitigation. Campbell, 2009 WL 773866, at *6 (collecting cases).
And Campbell cites to no case apart from Haight to support his theory that intoxication
should be treated with significant mitigating weight (with or without a “synergistic
effect” on other factors relevant to Campbell’s case). Further, the Ohio Supreme Court
has upheld a death sentence where the defendant consumed drugs and more alcohol than
Campbell prior to the commission of the crime, and where the defendant had also been
diagnosed with alcohol dependence and a personality disorder. See State v. Johnson,
858 N.E.2d 1144, 1184–85, 1186 (Ohio 2006) (upholding death sentence despite the fact
that defendant was diagnosed with alcohol dependence and personality disorders and had
consumed thirty-two ounces of hard liquor or distilled wine as well as various amounts
of crack cocaine and marijuana).

In preventing Campbell from raising voluntary intoxication as a mitigating factor,
the trial court committed error. However, we do not have “grave doubt” about whether
that error had a substantial and injurious effect or influence in determining the jury’s
verdict. See Fields, 617 F.3d at 823. Therefore, we find the error harmless.
No. 09-3444 Campbell v. Bradshaw Page 24

VI.

For the reasons above, we affirm the decision of the district court to deny
Campbell’s petition for a writ of habeas corpus.