Kareem Jackson v. Margaret Bradshaw

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0164p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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Petitioner-Appellant (07-4326), -
KAREEM JACKSON,

Petitioner-Appellee (10-4592), --
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Nos. 07-4326; 10-4592

,
>
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v.

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Respondent-Appellee (07-4326), --
MARGARET BRADSHAW, Warden,

Respondent-Appellant (10-4592). N
Appeals from the United States District Court
for the Southern District of Ohio at Columbus.
No. 03-00983—Gregory L. Frost, District Judge.
Argued: January 19, 2010
Decided and Filed: June 1, 2012
Before: MERRITT, MARTIN, and CLAY, Circuit Judges.

_________________

COUNSEL
ARGUED: Kathryn L. Sandford, OHIO PUBLIC DEFENDER’S OFFICE, Columbus,
Ohio, for Appellant. Morgan A. Linn, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Kathryn L. Sandford, Robert
K. Lowe, OHIO PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellant.
Morgan A. Linn, Stephen E. Maher, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee.
_________________

OPINION
_________________

CLAY, Circuit Judge. In case number 07-4326, Petitioner Kareem Jackson
appeals the district court’s dismissal of the petition for writ of habeas corpus he filed
pursuant to 28 U.S.C. § 2254. Additionally, in case number 10-4592, Respondent
appeals an order entered by the district judge in response to a limited remand ordered by

1
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 2

this Court, in which the district court recommended we grant the writ on the basis of
Beck v. Alabama, 447 U.S. 625 (1980), and Mitts v. Bagley, 620 F.3d 650 (6th Cir.
2010), rev’d sub. nom Bobby v. Mitts, 131 S. Ct. 1762 (2011). For the reasons set forth
below, we AFFIRM the district court’s original decision in case number 07-4326
denying the petition for writ of habeas corpus, REVERSE the district court’s order in
case number 10-4592, and DENY the petition.

BACKGROUND

The following facts and procedural history were recounted in the Ohio Supreme
Court’s opinion denying Petitioner’s direct appeal in state court. See State v. Jackson,
751 N.E.2d 946 (Ohio 2001).

On March 24, 1997, Petitioner, Derrick Boone, Michael Patterson, and a man
called “Little Bee” decided to rob an apartment in Columbus, Ohio. Just past midnight
on March 25, 1997, Malaika Williamson drove the four men to the target apartment.
Inside the apartment were residents Antorio Hunter and Terrance Walker, along with
their friends Nikki Long and Becky Lewis. Walker and Long were in the back bedroom
when Petitioner and Little Bee knocked on the front door. Hunter answered the door and
allowed both men to enter the apartment. Walker came out of the back bedroom,
recognizing Petitioner, and said “I haven't seen you in a long time.” Petitioner and Little
Bee then purchased some marijuana.

Boone and Patterson then burst into the apartment armed with shotguns. The
men searched the apartment for money and drugs. Petitioner, who had a handgun, hit
Lewis on the head with his handgun, placed a pillow behind her head, and threatened to
kill her. Petitioner led Lewis into the kitchen. Long was also in the kitchen. Little Bee
and Patterson left the apartment, leaving Petitioner and Boone inside.

According to Boone, Hunter and Walker were lying on the living room floor.
Petitioner ordered one of them to crawl next to the other so that his head would be next
to the other’s head. While on the floor, one of the men stated that he “didn’t have no
money or weed” and that he would not call the police. Nonetheless, according to Boone,
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 3

Petitioner said, “They know my name. I have to kill them.” Petitioner then grabbed a
pillow, hesitated, and shot one of the men in the back of the head. The other, still lying
on the floor, said “Please don’t kill me. I ain’t going to say nothing.” Petitioner placed
a pillow behind the man’s head and, after again hesitating, shot the man in the back of
the head. Petitioner and Boone exited the apartment and joined Little Bee, Patterson,
and Williamson in the car. Williamson drove the men back to her apartment, where they
divided the robbery proceeds—about $40 in cash, $60 worth of marijuana, and a cellular
phone.

In the interim, Lewis and Long, who heard the gunshots, waited until they felt
it was safe to leave. They called Hunter’s name, and when there was no response, they
entered the living room. Upon seeing that Hunter and Walker had been shot and fearing
the men might come back, Long and Lewis fled the apartment through a bedroom
window. They called the police from another apartment.

At about 12:42 a.m., an officer responded to the dispatcher’s call. Upon arriving
at the apartment, the officer found the apartment door ajar and discovered the bodies of
Walker and Hunter face down on the living room floor. A cushion with bullet holes was
laying next to the victims.

Later that morning, Long met with an agent from the Bureau of Criminal
Identification and Investigation and gave the agent enough information to create a
composite sketch of Boone. Police distributed the composite sketch to the sheriff’s
department and the media. Boone subsequently turned himself in to the Franklin County
Sheriff’s Department. Boone cooperated with authorities and made a statement
implicating Petitioner and the others involved in the shootings. Lewis subsequently
identified Petitioner from a photo array lineup as the “guy with the little gun” who hit
her over the head and threatened to kill her.

Police began collecting physical evidence related to the shootings. They
retrieved a handgun from Williamson’s apartment, which testing revealed was used to
shoot Antorio Hunter. A firearms expert was unable to say conclusively that the same
gun was used to shoot Terrance Walker, but the bullet did have some characteristics
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 4

matching Petitioner’s handgun and matched the caliber of his weapon. Police also
searched the apartment Petitioner shared with his girlfriend, Ivana King, and found a
shotgun in a closet and two rifles concealed under the molding in the kitchen sink
cupboard. The police also recovered nine .38 caliber bullets from the apartment. During
a police interview, Ivana King stated that Petitioner told her he had “done two people.”

Petitioner was arrested on March 28, 1997 and was subsequently indicted on six
counts of aggravated murder for the deaths of Walker and Hunter. Each count of murder
included two death penalty specifications for multiple murder and murder during an
aggravated robbery in violation of Ohio Revised Code (“R.C.”) § 2929.04(A)(5) and
(A)(7). Petitioner was also charged with four counts of aggravated robbery, four counts
of kidnapping, and one count of felonious assault. Each count carried a firearm
specification.

Petitioner’s trial commenced in Franklin County, Ohio. The trial court granted
Petitioner’s motion for acquittal on the count charging him with the aggravated robbery
of Lewis, because Lewis testified that Petitioner did not demand or take money from her.
The jury returned a guilty verdict on the remaining charges. At the conclusion of the
penalty phase of the trial, the jury recommended that the court impose a death sentence.
The trial court accepted the jury’s recommendation and sentenced Petitioner to death.
On direct appeal, the Ohio Supreme Court affirmed the trial court’s decision.

On April 19, 1999, Petitioner filed a post-conviction petition in the trial court,
raising 26 grounds for relief. On June 18, 2001, Petitioner’s post-conviction petition was
denied. In denying relief, the Ohio Court of Common Pleas concluded that many of the
claims were barred as res judicata and that all of the claims lacked merit. Petitioner
subsequently submitted an application to reopen his direct appeal, which was denied on
January 16, 2002. Petitioner appealed the denial of post-conviction relief and the Ohio
Court of Appeals affirmed. Petitioner sought review from the Ohio Supreme Court,
which was denied on October 30, 2002.
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 5

In 2003, Petitioner filed an amended 28 U.S.C. § 2254 petition in federal district
court, raising 18 grounds for relief.1 Respondent moved to dismiss several of
Petitioner’s claims as procedurally defaulted. The district court granted in part and
denied in part Respondent’s motion on September 27, 2004. After the parties litigated
Petitioner’s remaining claims, the district court concluded that those claims lacked merit
and dismissed the petition on September 28, 2007. The district court certified several
of Petitioner’s claims for appeal, and we granted Petitioner’s motion to expand his
certificate of appealability. Shortly after we heard oral argument, we ordered
supplemental briefing on whether the instruction given to the jury after the penalty phase
of Petitioner’s trial violated Beck v. Alabama. Later still, we remanded the case to the
district court for findings of fact and conclusions of law on that issue. See 28 U.S.C.
§ 2106. The district court concluded that the penalty-phase instruction was inconsistent
with Beck and recommended that we grant Petitioner relief on that basis. Respondent
appealed that recommendation.

DISCUSSION

I. Legal Framework

On appeal of a denial of a petition for a writ of habeas corpus, we review the
district court’s conclusions of law de novo and its factual findings for clear error. Lovell
v. Duffey, 629 F.3d 587, 593–94 (6th Cir. 2011). We accept the state court’s

1
Petitioner raised the following claims: (1) ineffective assistance of trial counsel; (2) extraneous
influences affected the jury’s determination at the sentencing phase; (3) the trial court failed to ensure that
extraneous influences did not affect the jury at the sentencing phase; (4) the trial court denied Petitioner
his right to present evidence of his relative culpability at the penalty phase; (5) the prosecution engaged
in misconduct during its closing statement at the penalty phase; (6) the prosecution violated Petitioner’s
due process rights by deliberately causing co-defendant Michael Patterson not to testify as a defense
witness; (7) the prosecution improperly bolstered its case by referencing matters outside the record; (8)
the trial court issued an unconstitutional “acquittal first” instruction during the penalty phase; (9) the trial
court violated due process by requiring the jury to unanimously vote to impose a life sentence; (10) a
guilt-phase instruction unconstitutionally permitted the jury to presume the element of “purpose” from an
absence of evidence of accident; (11) the trial court’s jury instruction regarding “prior calculation and
design” violated due process; (12) the prosecution violated Petitioner’s constitutional rights by
systematically excluding African-Americans from the jury; (13) Petitioner’s due process rights were
violated when the trial court allowed alternate jurors to retire to the jury room with the 12 regular jurors;
(14) the trial court erroneously admitted into evidence firearms that were not identified as having been used
in the conviction offenses; (15) ineffective assistance of appellate counsel; (16) Ohio’s post-conviction
process was unconstitutionally inadequate; (17) in Ohio, the death penalty is disproportionately imposed
upon African-American defendants who kill white victims; and (18) cumulative error violated Petitioner’s
constitutional rights.
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 6

determination of a factual issue unless the petitioner upsets the presumption by clear and
convincing evidence. Moss v. Hofbauer, 286 F.3d 851, 858–59 (6th Cir. 2002) (citing
28 U.S.C. § 2254(e)(1)).

Since Petitioner sought habeas relief in October 2003, the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) governs his petition. Under AEDPA,
an application for a writ of habeas corpus will not be granted with respect to claims
adjudicated on the merits in state-court proceedings unless the adjudication:

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d).

A decision is “‘contrary to’ clearly established federal law 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 decided a case differently than the Supreme Court on a set of
materially indistinguishable facts.’” Lundgren v. Mitchell, 440 F.3d 754, 762 (6th Cir.
2006) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). A state-court decision
is based on an “unreasonable application” of clearly established federal law if “the state
court identifies the correct governing legal principle but unreasonably applies that
principle to the facts of the prisoner’s case.” Id. at 763 (quoting Williams, 529 U.S. at
413). “Clearly established federal law” means “the holdings, as opposed to the dicta, of
the Supreme Court’s decisions as of the time of the relevant state-court decision.” Id.
(quoting Williams v. Bagley, 380 F.3d 932, 942 (6th Cir. 2004), and Williams, 529 U.S.
at 412.)

AEDPA’s limitations permit this Court to award a petitioner relief only if the
state court’s application of federal law is “objectively unreasonable.” Goodell v.
Williams, 643 F.3d 490, 495 (6th Cir. 2011) (quoting Williams, 529 U.S. at 409). In
order to award relief, we must determine that the state court’s application of clearly
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 7

established federal law was unreasonable rather than simply incorrect. Id. To conclude
that a state court’s application of federal law was unreasonable, the Court must decide
that “there is no possibility fairminded jurists could disagree that the state court’s
decision conflicts with [the Supreme] Court’s precedents.” Harrington v. Richter, 131 S.
Ct. 770, 786 (2011). Under this inquiry, we must first explain “what arguments or
theories supported or . . . could have supported, the state court’s decision.” Id. Then,
the Court must decide whether “fairminded jurists could disagree that those arguments
or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.”
Id. Only if there is no basis for disagreement among fairminded jurists can the Court
award relief. Id.

In spite of these limitations, the Supreme Court has emphasized that AEDPA
“stops short of imposing a complete bar on federal court relitigation of claims already
rejected in state proceedings.” Id. Rather, federal habeas review continues to serve the
important role of “guard[ing] against extreme malfunctions in the state criminal justice
systems.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)).

We examine the last state-court decision on the merits. Garcia v. Andrews, 488
F.3d 370, 374 (6th Cir. 2007). We review the state court’s determination of mixed
questions of law and fact under the “unreasonable application” element of AEDPA.
Railey v. Webb, 540 F.3d 393, 397 (6th Cir. 2008).

II. Ineffective Assistance of Counsel

A. Legal Framework

A defendant is not accorded his Sixth Amendment right to counsel if “counsel’s
conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.” Strickland v. Washington, 466
U.S. 668, 686 (1984). Representation is deficient under Strickland when counsel makes
an error sufficiently grave that “counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment.” Id. at 687. Thus, to prevail on a claim of
ineffective assistance of counsel, a petitioner “must demonstrate that counsel’s
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 8

representation fell below an objective standard of reasonableness and that the [petitioner]
was prejudiced by the ineffective assistance of counsel.” Carter v. Bell, 218 F.3d 581,
591 (6th Cir. 2000). In assessing deficient performance, reviewing courts must take care
not to “second-guess” strategic decisions that failed to bear fruit. Strickland, 466 U.S.
at 689.

We cannot find counsel’s performance deficient based on a strategic choice
“made after thorough investigation of law and facts relevant to plausible options.” Id.
at 690. Strategic choices made after a “less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support the limitations on
investigation.” Id. at 690–91. Thus, counsel must make reasonable investigations or
make a reasonable decision that makes particular investigations unnecessary. Id. at 691.
In a capital case, “investigations into mitigating evidence ‘should comprise efforts to
discover all reasonably available mitigating evidence and evidence to rebut any
aggravating evidence that may be introduced by the prosecutor.’” Wiggins v. Smith,
539 U.S. 510, 524 (2003) (quoting ABA Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989)).

To satisfy the prejudice element of Strickland, a petitioner must prove 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. The Supreme
Court defines a “reasonable probability” as “a probability sufficient to undermine
confidence in the outcome.” Id. When deciding whether counsel’s errors prejudiced a
defendant, we “must consider the totality of the evidence before the . . . jury,” on the
assumption that “a verdict or conclusion only weakly supported by the record is more
likely to have been affected by errors than one with overwhelming record support.” Id.
at 695. In a “weighing” state like Ohio, in which the jury must conclude that
aggravating factors outweigh mitigating factors before recommending a death sentence,
a petitioner demonstrates prejudice by showing that “there is a reasonable probability
that at least one juror would have struck a different balance.” Wiggins, 539 U.S. at 537.
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 9

B. Guilt Phase Claims

1. Failure to Call Michael Patterson as a Trial Witness

Petitioner first argues that trial counsel failed to zealously represent him because
counsel did not call Michael Patterson as a witness. Prior to trial, defense counsel
discovered that Patterson sent Petitioner a letter indicating his willingness “to tell the
truth” about the events at the apartment. Defense counsel gave the prosecution a copy
of the letter. Petitioner’s attorneys also set up a meeting with Patterson through
Patterson’s attorney. During that meeting, Patterson reversed course and refused to
speak with Petitioner’s attorney. He explained that he felt in danger of losing his plea
agreement and promised that he would invoke his Fifth Amendment privilege if defense
counsel called him to testify at Petitioner’s trial. Counsel ultimately declined to call
Patterson to testify. Petitioner faults trial counsel for this decision. He argues that
counsel should have at least called Patterson to the witness stand and allowed the trial
judge to conduct voir dire regarding his claim of privilege. Petitioner suggests that
doing so would have revealed whether Patterson’s testimony was helpful to him.

Petitioner’s argument is unpersuasive, because counsel’s decision not to call
Patterson was a strategically defensible choice. The underpinning of counsel’s decision
was the fact that trial counsel did not know what Patterson would say if he was called
to the stand. During his meeting with Petitioner’s attorneys, Patterson refused to discuss
the events at the apartment. Given this fact, counsel could have called Patterson in
hopes that he would testify favorably or invoke his Fifth Amendment privilege; but
doing so would have risked allowing Patterson the forum to incriminate Petitioner if his
testimony would have, in fact, been incriminating. Even if Patterson gave favorable
testimony, the prosecution had in its possession a statement from Patterson implicating
Petitioner, which would have served as impeachment evidence. Trial counsel cannot be
faulted for finding the risk of Patterson’s testimony to be too great.

Petitioner also contends that defense counsel had no duty to turn over Patterson’s
letter to the prosecution unless and until Patterson testified. According to Petitioner,
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 10

there was no strategic purpose in informing the prosecutor about the letter, since turning
the letter over significantly prejudiced Petitioner. This argument erroneously assumes
that the prosecution would not have had the opportunity to speak with Patterson before
he testified or to impeach his testimony. Before he wrote the letter, Patterson was slated
to testify on behalf of the prosecution. Petitioner’s attorneys met with him at the prison
facility where the state had moved him in preparation for trial. Had Patterson decided
to testify favorably to Petitioner, the prosecution would have learned about the decision
soon enough. Therefore, Petitioner’s trial counsel did not forfeit any valid strategic
advantage by turning over the letter.

Even if trial counsel’s performance was somehow deficient with respect to
Patterson’s testimony, Petitioner has failed to show that there is a reasonable probability
that, but for counsel’s errors, the result of the proceedings would have been different.
On its face, Patterson’s letter failed to show that Patterson’s testimony would have
helped Petitioner’s defense. Petitioner offered no other evidence of the content of
Patterson’s testimony suggesting that it would have been helpful and, if so, that he would
have reneged on his plea agreement in order to offer the helpful testimony. Hence, we
have no basis for concluding that Patterson’s testimony would have been favorable to
Petitioner, much less affected the outcome of his trial.

2. Failure to Request an Eyewitness Identification Expert

Petitioner argues that trial counsel erred by failing to elicit trial testimony from
an eyewitness identification expert in order to rebut the testimony of Becky Lewis and
Nikki Long. Trial counsel renders ineffective assistance when he “fails adequately to
investigate, and to introduce into evidence, information that demonstrates his client’s
factual innocence, or that raises sufficient doubts as to that question to undermine
confidence in the verdict.” Richey v. Bradshaw, 498 F.3d 344, 362 (6th Cir. 2007)
(quoting Reynosa v. Giurbino, 462 F.3d 1099, 1112 (9th Cir. 2006)). The Supreme
Court has acknowledged “the dangers inherent in eyewitness identification,” United
States v. Ash, 413 U.S. 300, 329 (1973) (quoting United States v. Wade, 388 U.S. 218,
235 (1967)), and we have noted that “eyewitness misidentification accounts for more
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 11

false convictions in the United States than any other factor.” Ferensic v. Birkett, 501
F.3d 469, 478 (6th Cir. 2007). In Ferensic, we also explained that eyewitness
identification expert testimony is “universally recognized as scientifically valid and of
‘aid to the trier of fact’ for admissibility purposes.” Id. at 482 (quoting United States v.
Smithers, 212 F.3d 306, 315 (6th Cir. 2000)).

Petitioner argues that defense counsel was ineffective for failing to seek
testimony from an expert in eyewitness identification. Specifically, Petitioner asserts
that because the identifications by Long and Lewis were essential to the prosecution’s
case, failure to investigate this issue was not reasonable trial strategy. In support, he
offers an affidavit from Dr. Harvey Shulman, an eyewitness identification expert. Citing
Dr. Shulman’s opinion, Petitioner argues that Long and Lewis observed the events in the
apartment while under the influence of alcohol and marijuana, making the conditions for
their identification less than optimal. Petitioner further contends that these witnesses
were influenced by certain outside factors prior to making their in-court identifications,
allegedly casting doubt on them. Lewis was told that the suspect was in custody before
she identified Petitioner in a photo array at the police station. Also, Long identified
Petitioner in court only after seeing him on television. And Lewis’s identification was
purportedly “cross-racial” because she is white and Petitioner is black. Reasoning that
the identifications by Lewis and Long were “essential” to the prosecution’s case,
Petitioner contends that counsel’s decision not to seek expert testimony was strategically
indefensible.

To the contrary, our consideration of the trial record convinces us that counsel’s
decision not to elicit expert testimony was not unreasonable. Petitioner’s attorneys
emphasized the potential weaknesses in the Lewis and Long identifications during the
trial, even though they used other means than the one Petitioner argues they should have.
Defense counsel tried to impeach Long and Lewis, raising the aforementioned
impediments to their identifications on cross-examination. During closing argument,
defense counsel stated that Lewis “testified that she was high and drank some beer, that
she was scared that night, and two of her friends were killed.” Defense counsel also
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 12

emphasized that Long never identified Petitioner until she saw him on television and that
it was common sense that Lewis “was going to be able to sit in a courtroom and point
out the only black man sitting . . . at counsel table as the defendant.” Based upon
defense counsel’s statements and impeachment effort, we cannot conclude that defense
counsel failed to pursue this issue.

Even if the Court were to find counsel’s performance deficient in this respect,
Petitioner has failed to show prejudice. In Ferensic, we upheld a district court’s grant
of habeas relief to a defendant convicted of armed robbery, where the trial court
prevented the defendant’s eyewitness identification expert from testifying. Ferensic,
501 F.3d at 471, 482–83. Our ruling was grounded on the trial court’s refusal to allow
the expert to testify, which we deemed a violation of the defendant’s Sixth Amendment
right to present a defense. Id. at 483. Crucial to our ruling in Ferensic was the fact that
the only evidence against the defendant was his identification by the married couple
victimized by the robbery. Id. at 482–83.

That was not the case here. The identifications of Lewis and Long were not the
entire basis of the prosecution’s case against Petitioner. Neither Long nor Lewis actually
witnessed the shootings or identified Petitioner as the shooter. Instead, they identified
him as one of the armed men who entered the apartment to rob them and as the
individual armed with a handgun. The prosecution presented other evidence, some of
it quite incriminating. Derrick Boone testified that he was in the room with Petitioner
when Hunter and Walker were killed and that Petitioner was the shooter. Ivana King
testified that Petitioner told her “he had done two people.” As a result, Petitioner has
failed to show that trial counsel’s decision not to elicit testimony from an eyewitness
identification expert was likely to alter the outcome of his case.

3. Failure to Object to the Prosecution’s Use of Leading
Questions

Petitioner next contends that the prosecution excessively used leading questions
during Boone’s direct examination and that counsel’s failure to object to those questions
was objectively unreasonable. Because a state court may violate its own rules of
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 13

evidence without violating federal law, a state court’s erroneous application of state law
is only ground for habeas relief if the application also violates federal law. Coleman v.
Mitchell, 244 F.3d 533, 542 (6th Cir. 2001). Such a violation occurs only if the
“evidentiary ruling is so egregious that it results in a denial of fundamental fairness.”
Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003); see Washington v. Hofbauer,
228 F.3d 689, 699 (6th Cir. 2000). Therefore, we can only award relief where counsel’s
failure to object to the prosecutor’s questions denied Petitioner a fair proceeding. Cf.
United States v. Nguyen, 379 F. App’x 177, 181 (3d Cir. 2010); Roe v. Belleque, 232 F.
App’x 653, 654–55 (9th Cir. 2007).

Petitioner contends that the prosecutor asked leading questions to Boone
throughout the latter’s testimony, to which defense counsel did not object. According
to Petitioner, counsel’s failure to object transformed the prosecutor into a witness for his
own side because he was able to dictate the substance of Boone’s answers. Petitioner
argues that counsel’s performance prejudiced him by allowing the prosecution to put an
unsworn version of events on the record and prevented Petitioner from confronting
Boone.

Petitioner’s argument is unpersuasive, because he overstates the degree to which
Boone’s testimony was comprised of concessions to leading questions. The prosecutor
asked Boone many open-ended questions. Boone’s answers were terse, to be sure, and
the prosecutor did ask many leading questions during his lengthy examination. But
Petitioner’s argument that Boone’s testimony consisted of 69 transcript pages of
“predominately monosyllabic” answers is factually incorrect. Our review of Boone’s
testimony discloses that much less of Boone’s testimony resulted from leading questions
from the prosecutor, and that Boone was more responsive than Petitioner contends he
was.

Moreover, the form in which the prosecutor asked Boone questions was likely
allowed under Ohio law. A leading question “instructs [the] witness how to answer or
puts into his mouth words to be echoed back.” State v. D’Ambrosio, 616 N.E.2d 909,
914 (Ohio 1993). Pursuant to Ohio Rule of Evidence 611(C), leading questions should
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 14

not be used during the direct examination of a witness except as necessary to develop
the witness’s testimony. But Rule 611(C) allows the use of leading questions “[w]hen
a party calls a hostile witness, an adverse party, or a witness identified with an adverse
party.” This exception “is quite broad and places the limits upon the use of leading
question on direct examination within the sound discretion of the trial court.” State v.
Lewis, 448 N.E.2d 487, 490 (Ohio Ct. App. 1982). There is strong reason to believe that
the trial court allowed the prosecution to ask Boone leading questions because Boone’s
testimony was at times reluctant and evasive. Boone testified that he had grown up with
Petitioner and remained friends with him through the trial, that he did not want to testify,
and that he had a difficult time incriminating his friend. In light of Boone’s reluctance,
the trial court was unlikely to sustain any objection to the form of the prosecutor’s
questions. Petitioner has failed to demonstrate that the trial court denied him a
fundamentally fair proceeding by allowing the questioning. Therefore, we cannot fault
counsel for declining to object to the questions.

4. Failure to Present Impeachment Evidence Against Ivana
King

Next, Petitioner contends that during the cross-examination of Ivana King, trial
counsel should have raised the issue of bias she may have harbored against Petitioner.2
King had been in a romantic relationship with Petitioner at the time of the murder, and
she testified at trial that she remained in love with him. According to Petitioner, King
was obsessively jealous of him because of his infidelity. Petitioner suggests that she
may have testified falsely in order to assure his incarceration and thereby keep him away
from other women. While Petitioner admits that trial counsel did question King about
this possible source of bias, Petitioner argues that trial counsel should have pursued the
issue more thoroughly and sought the testimony of other witnesses regarding the
intensity of King’s jealousy.

2
There is some question regarding the appropriate standard of review for this sub-claim. In the
district court, Petitioner argued that this sub-claim should be reviewed de novo because the state appellate
court primarily rejected this claim on the basis of a procedural rule. Maples v. Stegall, 340 F.3d 433, 437
(6th Cir. 2003). Since we would reach the same result undertaking either de novo or AEDPA review, we
need not decide the appropriate standard.
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 15

As Petitioner concedes, trial counsel did, in fact, attempt to impeach King on this
very basis. Counsel questioned her about a woman named Christy Johnson, who King
admitted speaking with on the day of Petitioner’s arrest. According to King, Johnson
called her that afternoon to talk about the fact that Johnson was “sleeping with Kareem
Jackson.” King stated that she was angry with Petitioner at the time of the conversation.
Defense counsel also questioned King about Sheila Hamiter, the mother of Jackson’s
two children, in an attempt to reveal any jealousy King may have had about that
relationship.

In light of counsel’s efforts to raise the issue of King’s possible bias, Petitioner’s
argument amounts to the contention that trial counsel should have pursued the issue
more thoroughly. On the facts of Petitioner’s case, we cannot grant him relief on that
basis. Because counsel did raise the issue and pursued other lines of defense, we cannot
find counsel’s performance objectively unreasonable for declining to pursue the matter
further, particularly when the effect of further probing is so speculative. See Henderson
v. Norris, 118 F.3d 1283, 1287 (8th Cir. 1997) (“Courts generally entrust
cross-examination techniques, like other matters of trial strategy, to the professional
discretion of counsel.”). Most cross-examinations can be improved but if that “were the
standard of constitutional effectiveness, few would be the counsel whose performance
[pass] muster.” Id. (quoting Willis v. United States, 87 F.3d 1004, 1006 (8th Cir. 1996));
see United States v. Munoz, 605 F.3d 359, 381 (6th Cir. 2010). Therefore, counsel did
not perform ineffectively by not more forcefully pressing King on the issue of her
possible bias.

5. Jury Instruction on Unanimity

In his final ineffective assistance sub-claim regarding the guilt phase of his trial,
Petitioner argues that trial counsel should have objected to what he describes as an
“acquittal first” jury instruction. In State v. Thomas, the Ohio Supreme Court held that
a “jury is not required to determine unanimously that the defendant is not guilty of the
crime charged before they may consider a lesser included offense upon which evidence
has been presented.” State v. Thomas, 533 N.E.2d 286, 293 (Ohio 1988) (internal
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 16

quotation omitted). Rather, under Thomas, the jury must be allowed to return a verdict
on the lesser included offense if it cannot agree, unanimously or not, to convict on the
greater offense. Id. at 292–93.

Relying on Thomas, Petitioner contends that counsel was ineffective for failing
to object to the jury instruction. This sub-claim is based on the following instruction:

If you find that the State has proved all parts of the specification beyond
a reasonable doubt, you must find the defendant guilty of that
specification.
If you find that the State has failed to prove beyond a reasonable doubt
any part of specification number [X], you must find the defendant not
guilty of that specification.

Petitioner argues that the “form and substance” of this instruction indicated to jurors that
they were required to unanimously find Petitioner not guilty and were not allowed to
acquit him based on a single juror’s dissenting vote.

Since we cannot award Petitioner relief based on an error of state law alone,
Petitioner must show that the instruction violated Ohio law in order to support the
conclusion that counsel should have objected to it. Matthews v. Parker, 651 F.3d
489, 522 (6th Cir. 2011). He fails to make that showing. The Ohio Supreme court
rejected this claim, finding that “in this case the jury [was] not instructed to unanimously
acquit the accused of an offense before moving to any lesser offense.” Jackson,
751 N.E.2d at 960; see Seymour v. Walker, 224 F.3d 542, 558 (6th Cir. 2000)
(explaining that state supreme court’s interpretation of its own law could not be
questioned in assessing petitioner’s claim that jury was improperly instructed). The
plain language of the jury instruction supports the Ohio Supreme Court’s conclusion.
The emphasis of this instruction was the prosecution’s burden; it directed the jury to
convict Petitioner if the prosecution proved its case and to acquit him if the prosecution
did not. The trial court later explained that the jury was required to vote unanimously
on any decision to convict, but the court did not assert, either implicitly or explicitly, that
the jury was required to vote unanimously to acquit. Because Petitioner fails to
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 17

demonstrate that the jury instruction violated Ohio law, we cannot conclude that
counsel’s decision not to object to the instruction was objectively unreasonable.

C. Penalty Phase Claims

1. Failure to Question Juror Huddle

Petitioner argues that trial counsel should have questioned a juror regarding
unusual events that occurred during the penalty phase of the trial.3 The Sixth and
Fourteenth Amendments guarantee a criminal defendant an impartial jury in state-court
proceedings. Madhi v. Bagley, 522 F.3d 631, 636 (6th Cir. 2008). The state fails to
vindicate that right for a defendant if “even a single biased juror” sits on the panel.
Williams, 380 F.3d at 944 (citing Morgan v. Illinois, 504 U.S. 719, 729 (1992)). If a trial
court is faced with evidence of a juror’s bias, the court “must conduct ‘a hearing with
all interested parties permitted to participate.’” United States v. Owens, 426 F.3d 800,
805 (6th Cir. 2005) (quoting Remmer v. United States, 347 U.S. 227, 230 (1954)).

A defendant must “do more than simply raise the possibility of bias” in order to
obtain a full Remmer hearing. Id. To the contrary, a trial court needs to conduct a
Remmer hearing only when the defense raises a “colorable claim of extraneous
influence.” Id. (internal quotation and citation omitted). An “extraneous influence” is
“one derived from specific knowledge about or a relationship with either the parties or
their witnesses.” Id. (internal quotation and citation omitted). Examples of extraneous
influences include “prior business dealings with the defendant, applying to work for the
local district attorney, conducting an [out-of-court] experiment, and discussing the trial
with an employee.” Id. (internal citations omitted). A court must seek assurance from
the juror that she is capable of proceeding without bias, and if a trial court “views juror
assurances of continued impartiality to be credible, the court may rely upon such
assurances.” United States v. Pennell, 737 F.2d 521, 533 (6th Cir. 1984).

3
There is again a question about the standard of review applicable to this case, but, once again,
we need not decide the appropriate standard because we would reach the same result undertaking either
de novo or AEDPA review.
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 18

After the jury found Petitioner guilty on the remaining counts but before the
mitigation phase began, Juror Maureen Huddle returned home to find two men standing
at the end of her street. She said they were in the middle of her street following her car.
When Huddle pulled up to her house, upon seeing that her garage door was open, she
opted not to pull into her driveway. Instead, she went to neighbor’s house a few doors
down and noticed that the two men were standing in her driveway. Huddle quickly
notified the police, who came over and inspected her house. The police told Huddle that
a van had been parked there about an hour earlier and they described the van. Two days
later, the police knocked at Huddle’s door at about 2:00 a.m. and informed her that her
garage door was partially open.

Huddle informed the trial court of these incidents. The court held a brief
colloquy with her and the parties and outside the presence of the other jurors. The trial
judge asked Huddle whether she could fully focus on the case in spite of those incidents.
She answered that she could. When the prosecutor asked if she brought the matter to the
court’s attention out of concern that it related to the case, Huddle responded: “I honestly
think it is all coincidence, but I just thought I would mention it.” Huddle also said that
it was possible that her garage door was broken and stated that the incidents would not
affect how she evaluated the evidence during the penalty phase of trial.

Defense counsel did not question Huddle, and Petitioner contends that counsel
should have. Specifically, Petitioner argues that trial counsel should have questioned
Huddle thoroughly and requested that the trial court admonish Huddle from discussing
the incidents with her fellow jurors. The fact that the prosecutor asked Huddle whether
she thought the incidents were connected to her service as a juror, asserts Petitioner,
should have prompted defense counsel to question Huddle.

Trial counsel was not objectively unreasonable in declining to question Huddle.
From the record of the trial judge’s hearing, it appears that Huddle brought the incidents
to the court’s attention out of an abundance of caution. Both before and after the court
asked her whether the incident was related to the trial, Huddle repeatedly stated that she
did not believe it was. Huddle also stated that the incidents would not affect her ability
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 19

to perform as a juror. It is not clear what other subjects counsel should have explored
or why it was unprofessional for defense counsel to rely on the questions offered by the
court and the prosecutor.

Seeking to establish prejudice resulting from counsel’s failure to question
Huddle, Petitioner offers an affidavit from another juror, James Cahill, III. Cahill states
that “[p]rior to the mitigation phase, [] Huddle informed the remaining jurors as to the
bizarre phone calls that she received at her home and as to the incident that occurred near
her home the night prior to the trial phase jury deliberations.” Cahill also asserts that
Huddle “came in crying after these incidents and was taken home by someone one
evening due to her fear.” According to Petitioner, Cahill’s affidavit demonstrates that
Huddle’s reaction to the incidents was more severe than she disclosed to the court and
that the issue merited more questioning from defense counsel.

Petitioner’s argument is unpersuasive. The implication of the argument is that
Huddle’s assertions to the trial court were suspect, but, as the Supreme Court has
explained, a juror’s assertion that she is fit to proceed is not “inherently suspect.” Smith
v. Phillips, 455 U.S. 209, 217 n.7 (1982). Indeed, beyond the emotional reaction
described by Cahill, there is no indication that Huddle was unable to perform her duty.
Cahill’s affidavit does not establish that Cahill or any of the other jurors thought that the
incidents conveyed by Huddle were related to the trial. Cahill’s affidavit also fails to
establish that the deliberations of Cahill, Huddle, or any of the other jurors were
improperly influenced by the incidents or Huddle’s reaction to them. Moreover, the trial
court’s decision not to further question or admonish Huddle was based on the fact that
Huddle minimized the import of the incidents and stated that she could devote her
attention to the matters before the court. There is also no evidence that the incidents
could actually be deemed extraneous influences because there was no indication that
Petitioner had any connection to them.

Even if Cahill’s affidavit contained a stronger suggestion that Huddle was not
able to perform her task, trial counsel would not have been privy to that information at
the time of Huddle’s colloquy with the trial judge. In reviewing Petitioner’s claim, we
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 20

are required to evaluate counsel’s performance bearing in mind what counsel knew at
the time of the trial. See Strickland, 466 U.S. at 689 (“A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.”). Moreover, the lack of
further information regarding Huddle’s performance as a juror precludes Petitioner from
demonstrating that the outcome of his case would have been different had counsel
questioned her.

Petitioner also raises independent, substantive claims regarding the incidents
involving Huddle unrelated to counsel’s performance. Petitioner argues that the
incidents affected the jury, contrary to Huddle’s assurance, and that the trial court should
have undertaken a more in-depth colloquy with Huddle to assure the incidents would not
affect the jury. Because we have concluded that Petitioner has failed to show that the
jury was, in fact, influenced in its deliberation by the Huddle incidents, we cannot award
Petitioner relief on these claims.

2. Investigation of Petitioner’s Family and Social History and
Preparation of Mitigation Witnesses

Petitioner next argues that trial counsel’s investigation into his personal history
was insufficient. Failure to reasonably investigate a defendant's background can
constitute ineffective assistance of counsel. Wiggins, 539 U.S. at 522–23; Williams,
529 U.S. at 395–96. In considering this claim, we must take account of “the quantum
of evidence already known to counsel,” “whether the known evidence would lead a
reasonable attorney to investigate further,” and “whether counsel adequately followed
up on the ‘leads’ that were available.” Wiggins, 539 U.S. at 527; Haliym, 492 F.3d at
712. Counsel’s investigation of mitigating evidence “should comprise efforts to discover
all reasonably available mitigating evidence and evidence to rebut any aggravating
evidence that may be introduced by the prosecutor.” Wiggins, 539 U.S. at 524 (quoting
ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty
Cases § 11.4.1(C), p. 93 (1989)).
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 21

Where counsel abandons the investigation of mitigating factors at an
unreasonable juncture, counsel is unable to make a fully informed decision regarding
sentencing strategy; therefore, “conducting a partial, but ultimately incomplete,
mitigation investigation does not satisfy Strickland[’s] requirements.” Dickerson v.
Bagley, 453 F.3d 690, 695 (6th Cir. 2006); see Wiggins, 539 U.S. at 527–28. However,
“reasonably diligent counsel may draw a line when they have good reason to think
further investigation would be a waste.” Rompilla v. Beard, 545 U.S. 374, 383 (2005).

Petitioner argues that trial counsel failed to investigate and prepare available
mitigating evidence and thus failed to develop a complete personal history. He
maintains that trial counsel failed to interview, or adequately interview, family and
friends. Petitioner also argues that the interviews with his parents were inadequate
because they did not focus on the family’s generational history or on Petitioner’s
development. In support of this claim, Petitioner offers affidavits from several of those
friends and family members demonstrating the trying circumstances he experienced as
a young person. Those circumstances include: Petitioner’s father drank alcohol
excessively and physically abused Petitioner’s mother; Petitioner’s family moved homes
on eighteen separate occasions before he reached age six; Petitioner attended five
separate schools between kindergarten and eighth grade; Petitioner was left alone by his
parents for extended periods of time and sought alternative “parental figures” in a local
gang; and Petitioner’s grandmother was the main source of stability in his life and, when
she passed away, left Petitioner without a stable adult figure in his life.

This evidence overlaps considerably with the evidence admitted during the
penalty phase of Petitioner’s trial. Trial counsel pursued a mitigation strategy of
admitting evidence of, on the one hand, Petitioner’s troubled upbringing and, on the
other hand, good qualities and deeds he performed while growing up. With respect to
the former portion of the mitigation case, Petitioner’s parents testified and described a
youth in which Petitioner observed his parents’ tumultuous partnership and largely
lacked positive, loving adult role models. Petitioner’s mother testified that his father
was physically abusive with her. She explained that the family was financially destitute
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 22

and was therefore forced to frequently move homes while Petitioner was a child.
Petitioner’s mother also testified that her contact with Petitioner and his children had
decreased considerably in the years prior to the murder. For his part, Petitioner’s father
testified that he moved away from Petitioner and his mother when Petitioner was still a
child, and that he had no contact with Petitioner and provided him no financial support
while Petitioner was a teenager.

Petitioner’s mitigation case also included evidence of his good qualities.
Petitioner’s former pastor testified to Petitioner’s involvement in the church through his
adolescent years. Testimony also demonstrated that Petitioner had once saved a young
boy from drowning in a pool, received the highest score in his GED course, and had
never been fired from a job. The presentation of this evidence was the product of
counsel’s investigation, which included a psychologist’s examination and interviews
with Petitioner’s family members and friends. See Martin v. Mitchell, 280 F.3d 594, 613
(6th Cir. 2002) (finding counsel’s investigation sufficient when it included a background
report, a psychiatric report, and the testimony of the petitioner’s grandmother and
mother).

To the extent there is any disparity between the evidence presented at trial and
what Petitioner produces on post-conviction review, that evidence is largely cumulative.
In order to show prejudice resulting from counsel’s failure to investigate a capital
defendant’s personal history, a defendant’s “new evidence . . . must differ in a
substantial way—in strength and subject matter—from the evidence actually presented
at sentencing.” Fautenberry v. Mitchell, 515 F.3d 614, 626 (6th Cir. 2008) (internal
quotation marks and citation omitted). Counsel’s failure to present cumulative evidence
does not establish prejudice. Id. By way of example, as we explained, Petitioner’s
mother testified that her trying financial circumstances required her to move her family
to many different homes during Petitioner’s youth. On post-conviction review,
Petitioner offered the more specific evidence that Petitioner moved over eighteen times
before he was six-years-old. While the latter evidence sharpens the outlines of
Petitioner’s personal history from the picture offered at trial, the extra benefit to
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 23

Petitioner resulting from the increased specificity is marginal and, therefore, insufficient
to support the conclusion that counsel erred by failing to proffer these more specific
details.

The same can be said for two witnesses Petitioner argues that trial counsel should
have called to testify, Sheila Hamiter (Petitioner’s girlfriend) and William Woods
(Petitioner’s cousin). According to Petitioner, trial counsel conducted brief, introductory
interviews with Hamiter and Woods. Petitioner argues that more thorough interviews
with these witnesses, and trial testimony from them, would have “humanized” Petitioner
in front of the jury. We assume that more testimony about Petitioner’s good qualities
would have given the jury a larger pool of information to draw upon in weighing the
aggravating and mitigating factors. We cannot conclude, however, that a larger pool of
information of the same type already offered was reasonably likely to have altered the
jury’s balancing decision. None of the evidence uncovered by Petitioner on post-
conviction review reveals the sort of jarring facts about Petitioner’s personal history that
has led us to find glaring errors in attorney investigation in previous cases. See, e.g.,
Williams v. Anderson, 460 F.3d 789, 804–05 (6th Cir. 2006) (explaining that proper
investigation would have shown, inter alia, that petitioner suffered from several
personality disorders and suffered from drug-induced paranoia); see also Hawkins v.
Coyle, 547 F.3d 540, 549–50 (6th Cir. 2008) (collecting cases).

Our conclusion regarding counsel’s presentation of Petitioner’s family and social
history governs our consideration of Petitioner’s claim that trial counsel failed to
adequately prepare mitigation witnesses. Petitioner contends that trial counsel should
have more thoroughly prepared the witnesses that testified on his behalf during his
mitigation case. According to Petitioner, trial counsel spent too little time preparing
those witnesses for the questions they would field, failed to review the answers that the
witnesses should offer to particular questions, and devoted too much of their time with
Petitioner’s family members urging them to persuade Petitioner to accept a plea bargain.
In particular, Petitioner points to the testimony of Ophelia Felder. Felder testified that
Petitioner saved her grandson from drowning, but she could not answer many of
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 24

counsel’s questions about the incident in detail. Felder’s grandson was in the courtroom
while she testified. According to Petitioner, had Felder’s grandson testified, or had
Felder been better prepared for the testimony, Petitioner’s mitigation case would have
more effectively humanized Petitioner to the jury.

Like Petitioner’s argument regarding counsel’s presentation of his family and
social history, Petitioner offers no evidence to suggest that a different presentation of
mitigation testimony would have provided the jury different information with which to
make its sentencing decision. Petitioner offers affidavits from his parents and other
family members who did not testify during his mitigation case, but these affidavits
include the same information that we have already concluded is repetitive or marginally
more descriptive of the information disclosed to the jury. Therefore, whatever duty
counsel had to better prepare Petitioner’s mitigation witnesses, counsel’s compliance
with that duty in a manner Petitioner would have preferred is unlikely to have led the
jury to a different sentencing decision.

3. Investigation of Petitioner’s Psychological History and
Vindication of Petitioner’s Right to Have Jury Consider All
Mitigation Evidence

Petitioner next contends that defense counsel was ineffective because they waited
too long to hire a psychological expert, Dr. Kathleen Burch, and failed to provide her
with background information to prepare for her interview with Petitioner. As suggested
by our earlier discussion, the failure to conduct “a reasonable investigation of a
defendant’s psychiatric history and family background, and to present mitigating
evidence to the jury at sentencing, can constitute ineffective assistance.” Clark v.
Mitchell, 425 F.3d 270, 284 (6th Cir. 2005) (citing Wiggins, 539 U.S. at 522–23).
Nevertheless, counsel can make a tactical decision not to present a psychologist’s
testimony at the penalty phase. See Hartman v. Bagley, 492 F.3d 347, 360 (6th Cir.
2007) (“[C]ounsel might quite reasonably have made a strategic decision to present the
report’s mitigation findings through the more sympathetic lens of family members’
testimony.”). The Supreme Court “has never stated as a per se rule that a particular type
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 25

of mental health expert is required in death penalty cases.” Carter v. Mitchell, 443 F.3d
517, 526 (6th Cir. 2006).

Trial counsel were appointed in April 1997 and contacted Dr. Burch in October
of that year. When Petitioner met with Dr. Burch in November 1997, he was purportedly
evasive and reluctant to speak openly with her and thereby prevented Dr. Burch from
administering a comprehensive set of psychological tests. On January 19, 1998, trial
counsel and Dr. Burch participated in a phone call in which Dr. Burch told the attorneys
about her conversation with Petitioner. Shortly thereafter, trial counsel notified Dr.
Burch that they had decided against using her testimony in Petitioner’s mitigation case.
In an affidavit, Dr. Burch avers that she could have prepared mitigation testimony if she
had more time to spend with Petitioner. Petitioner argues that the time constraint
prevented Petitioner and Dr. Burch from building a rapport and building trust conducive
to Petitioner speaking candidly with her. Consequently, Petitioner contends, the jury
failed to hear about “instability and violence in [his] upbringing.”

In assessing the reasonableness of counsel’s decision not to seek Dr. Burch’s
testimony, we begin by noting that Petitioner impeded Dr. Burch’s attempt to obtain a
complete set of tests from him by declining to speak openly with her during the
examination. The fact that Dr. Burch was unable to formulate a thorough opinion on
Petitioner’s psychological condition—itself a result in large part of Petitioner’s
conduct—makes it more difficult to fault counsel for deciding not to rely on testimony
with less-than-obvious value to Petitioner’s mitigation case. We always begin assessing
counsel’s assistance with the presumption that counsel’s performance falls within the
spectrum of reasonable professional judgment. Strickland, 466 U.S. at 689. Petitioner’s
decision not to assist Dr. Burch makes it more difficult to overcome that presumption.

The remaining evidence suggests that counsel’s decision not to seek Dr. Burch’s
testimony was not unreasonable. The details of Dr. Burch’s conversation with trial
counsel on January 19, 1998 are not clear; Dr. Burch was unable to recall them in her
affidavit. Thus, we are certain only that Dr. Burch gathered some unspecified
information from her discussion with Petitioner, Dr. Burch likely relayed the information
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 26

to trial counsel during their phone conversation, and counsel told Dr. Burch shortly
thereafter that they would not ask her to testify during Petitioner’s mitigation case.
While the substance of the information Dr. Burch provided trial counsel is unclear, the
psychological expert that examined Petitioner in preparation for post-conviction
proceedings, Dr. Hugh Turner, asserted in his affidavit that his findings regarding
Petitioner’s psychological makeup were consistent with those of Dr. Burch. After a
complete examination, Dr. Turner concluded that the difficult circumstances of
Petitioner’s upbringing led Petitioner to blame others for his own problems and created
the conditions for significant relational problems he had with peers and authority figures.
Trial counsel offered other evidence supportive of these conclusions during Petitioner’s
mitigation case, in the form of testimony from his parents. If Dr. Burch conveyed
information to trial counsel consistent with Dr. Turner’s findings, then, counsel may
have concluded that offering repetitive testimony would not have served Petitioner’s
purposes. Thus, the evidence before us would make it difficult to upset the presumption
that counsel’s decision not to seek Dr. Burch’s testimony was defensible trial strategy.

Dr. Turner’s findings strengthen the conclusion that counsel’s decision was not
unreasonable, while also supporting the conclusion that Petitioner was not prejudiced
by counsel’s decision. As we explained above, Dr. Turner concluded that Petitioner had
significant relational problems, tended to blame others for his problems, and had poor
decision-making skills and impulse control. According to Dr. Turner, these traits
resulted from Petitioner’s dysfunctional and unstable family environment characterized
by, among other things, Petitioner’s parents’ failure to nurture him. Dr. Turner’s
findings and conclusions are consistent with the evidence trial counsel presented in
Petitioner’s mitigation case. As we have explained, we have found unreasonable
performance by counsel prejudicial to petitioners where post-trial investigation reveals
significant behavior-shaping psychological problems not discovered by trial counsel.
See, e.g., Williams, 460 F.3d 789, 804–05. No such discovery occurred here. Therefore,
Petitioner was not prejudiced by the manner in which trial counsel sought out and used
Dr. Burch’s expert opinion.
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 27

Petitioner also relies on Dr. Turner’s findings and conclusions for his claim that
trial counsel failed to vindicate Petitioner’s right to jury consideration of all mitigating
evidence. See Penry v. Lynaugh, 492 U.S. 302 (1989); Hitchock v. Dugger, 481 U.S.
393 (1987). According to Petitioner, the jury never learned the degree to which
Petitioner’s life was characterized by exposure to domestic violence, displacement, and
neglect, as a result of counsel’s decision not to seek testimony from a psychological
expert. This argument is incorrect. As we have explained, trial counsel used other
means for airing the painful details of Petitioner’s childhood to the jury, and counsel’s
decision not to use the testimony of a psychological expert for that purpose did not
prejudice him.

4. Testimony of Cultural Expert

Petitioner contends that counsel was ineffective because they failed to seek a
cultural expert’s testimony. Petitioner offers an affidavit from Dr. Kwaw David
Whittaker, which discusses the concept of “cultural nullification” as a process by which
pervasive social practices limit life potential, create lower life expectancies, and result
in more challenging living conditions. Whittaker’s affidavit applies this concept to
African-Americans, particularly males. Examining Petitioner’s social and family
background, Dr. Whittaker opines that cultural nullification affected generations of
Petitioner’s family and resulted in Petitioner’s self-destructive path. Petitioner contends
that presenting the testimony of a cultural expert would have created a reasonable
probability that at least one juror would have reached a different outcome during the
penalty phase.

Dr. Whittaker’s testimony would have contradicted trial counsel’s mitigation
strategy. Rather than painting Petitioner exclusively as the victim of a difficult
childhood, defense counsel opted to humanize Petitioner by focusing on his positive
characteristics as well as the portions of his childhood that made his early life so
difficult. Because this strategy was not objectively unreasonable, it is entitled to “heavy
deference.” Wiggins, 539 U.S. at 521–22 (quoting Strickland, 466 U.S. at 690–91)
(“[S]trategic choices made after thorough investigation of law and facts relevant to
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 28

plausible options are virtually unchallengeable; and strategic choices made after less
than complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.”). We have also
suggested that this specific strategy is a legitimate one. Johnson v. Bagley, 544 F3d 592,
599 (6th Cir. 2008). It would have contradicted the evidence of Petitioner’s good
qualities, such as his act of saving Felder’s grandson from drowning and his extensive
involvement in church during his adolescent years, for counsel to present testimony that
Petitioner had virtually no chance to lead a productive and responsible life. It would
have also contradicted the testimony of Petitioner’s mother, who emphasized the stable
aspects of Petitioner’s youth and the fact that Petitioner was relatively young when she
was abused by Petitioner’s father. Therefore, we cannot fault counsel for declining to
present mitigation testimony that would have contradicted the valid mitigation strategy
counsel was pursuing. See Carter, 443 F.3d at 528 (concluding counsel’s decision not
to seek testimony from a cultural expert was not unreasonable when the testimony would
have contradicted that of other mitigation witnesses).

5. Admission of Penalty Phase Evidence Unrelated to
Aggravating Circumstances

Next, Petitioner asserts that pursuant to State v. DePew, 528 N.E.2d 542 (Ohio
1988) and R.C. § 2929.03(D)(1), defense counsel rendered ineffective assistance by
failing to object when, during the penalty phase, the court admitted evidence previously
admitted during the guilt phase. In DePew, the Ohio Supreme Court held that at the
penalty phase of a capital trial, the prosecution can introduce “any evidence raised at
trial that is relevant to the aggravating circumstances the offender was found guilty of
committing.” Id. at 282–83.

Petitioner reads DePew to prohibit the admission of any evidence that does not
directly relate to the aggravating circumstances found by the jury. This evidence at issue
includes a large sketch of the crime scene, photographs of the crime scene, the seat
cushion placed over the victims’ heads, bloody carpet, plastic baggies, a shotgun, and
a rifle. According to Petitioner, this evidence should not have been admitted during the
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 29

penalty phase, because the evidence was unrelated to any of the aggravating
circumstances the jury was required to find and weigh with any mitigating
circumstances. Therefore, Petitioner contends that counsel should have objected to the
evidence’s admission.

Petitioner’s description of Ohio law is incorrect. In DePew, the Ohio Supreme
Court noted that R.C. § 2929.093(D)(1) “permit[s] repetition of much or all” of the
evidence in the penalty phase that the court admitted during the guilt phase. Id. at
282–83. In State v. Ketterer, 855 N.E.2d 48 (Ohio 2006), the Ohio Supreme Court
further explained that the penalty phase in a capital trial in Ohio is “not limited to
evidence that pertains only to the aggravating circumstances” and repeated DePew’s
holding that “a trial court may properly allow repetition of much or all that occurred in
the guilt phase” under § 2929.093(D)(1). Id. at 71 (internal quotation and citation
omitted). A trial court is required to determine the admissibility of evidence, but the
court has considerable discretion in making this determination. See State v. Hancock,
840 N.E.2d 1032, 1053 (Ohio 2006).

All told, Ohio law leaves no room for concluding that the trial court’s admission
of the evidence listed above was improper. Therefore, counsel’s decision not to object
to admission of the evidence was not objectively unreasonable.

D. Ineffective Assistance of Appellate Counsel

Petitioner reformulates several of the ineffective-assistance claims considered
above into claims of ineffective assistance of appellate counsel. In perfunctory fashion,
Petitioner argues that appellate counsel unreasonably failed to raise the following claims
on direct appeal:

1. Trial counsel failed to adequately investigate and prepare for the
cross-examination of State witnesses Derrick Boone and Malaika
Williamson.
2. Trial counsel failed to request either funds for or the assistance
of an eyewitness-identification expert.
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 30

3. Trial counsel failed to present the jury with a “cohesive” defense
theory.
4. Trial counsel failed to object to improper jury instructions at the
guilt phase.
5. Trial counsel did not adequately prepare mitigation witnesses.
6. Trial counsel’s failure to object to prosecutorial misconduct
during closing argument at the penalty phase prejudiced
[Petitioner].
7. The trial court should have instructed the jury that its vote did not
have to be unanimous as to whether a mitigating factor existed.

Petitioner lists these claims, but does not elaborate on them. Because Petitioner does not
develop these claims, he has waived them. See Benge v. Johnson, 474 F.3d 236, 245
(6th Cir. 2007) (citation omitted) (“[I]t is a settled appellate rule that issues adverted to
in a perfunctory manner, unaccompanied by some effort at developed argumentation, are
deemed waived.”). The claims would fail even if they were not waived. Because the
Strickland standard applies to claims of ineffective assistance of appellate counsel, we
could not deem any of these claims meritorious after having denied each of the
underlying ineffective assistance claims. Willis v. Smith, 351 F.3d 741, 745 (6th Cir.
2003).

III. Penalty Phase Jury Instruction Regarding Jury’s Sentencing Options

Petitioner argues that the trial court gave the jury an unconstitutional “acquittal
first” instruction during the penalty phase of his trial, in violation of the Eighth
Amendment. In the first of two interwoven arguments, Petitioner contends that the
instruction given to the jury regarding their weighing of aggravating and mitigating
factors improperly required the jury to unanimously agree not to recommend the death
penalty before recommending a life sentence. In assessing whether a jury instruction
violates the Eighth Amendment, we decide “whether there is a reasonable likelihood that
the jury has applied the challenged instruction in a way that violates the Constitution.”
Davis v. Mitchell, 318 F.3d 682, 687 (quoting Jones v. United States, 527 U.S. 373, 390
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 31

(1999)). If it is reasonably likely that the jury applied the instruction in a prohibited
manner, the death sentence cannot stand. Mills v. Maryland, 486 U.S. 367, 377 (1988).

An acquittal first instruction is “any instruction requiring that a jury unanimously
reject the death penalty before it can consider a life sentence.” Davis, 318 F.3d at 689.
Such an instruction requires the jury to unanimously agree that the mitigating factors
outweigh the aggravating factors in order to recommend a life sentence, as opposed to
allowing a life sentence based on a single juror’s view that the mitigating factors
outweigh the aggravating factors. See Mapes v. Coyle, 171 F.3d 408, 416 (6th Cir.
1999); Davis, 318 F.3d at 685. That procedure in turn prohibits jurors from considering
the mitigating factors not found unanimously in determining whether to recommend a
death sentence, which the jury must be allowed to do. See Mills, 486 U.S. at 374–75;
see also Eddings v. Oklahoma, 455 U.S. 104, 110 (1982).

Petitioner argues that an instruction the trial court gave in this case was similar
to those we found impermissible in Mapes and Davis. In Mapes, the trial court
instructed the jury that in order to impose a death sentence, the jury must “find by proof
beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating
factors.” Mapes, 171 F.3d at 416. The trial court went on to instruct the jury that in
order to impose a sentence of life imprisonment, the jury “must unanimously find that
the State has failed to prove beyond a reasonable doubt that the aggravating
circumstances . . . outweigh the mitigating factors.” Id. In our judgment, the trial
court’s instruction required all jurors to agree that the balance tipped in favor of the
mitigating factors before deciding upon a life sentence. Id. (citing State v. Brooks, 661
N.E.2d 1030, 1041 (Ohio 1996)). That requirement contravened Ohio law, which led
us to suggest that appellate counsel performed deficiently for failing to raise the error on
appeal. See id.

In Davis, the trial court instructed the jury that it had to unanimously find that the
aggravating circumstances outweighed the mitigating factors in order to impose the
death sentence. Davis, 318 F.3d at 689. The trial court then instructed the jury that in
order to impose a life sentence, the jury “must find that the State . . . failed to prove
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 32

beyond a reasonable doubt that the aggravating circumstances . . . outweigh the
mitigating factors.” Id. The trial court went on to tell the jury that because “this is a
criminal case the law requires that in order for [the jury] to reach a decision all 12
[jurors] must be in agreement.” Id. The verdict form also required the jury to
unanimously find that the aggravating factors did not outweigh the mitigating factors.
Id. at 690–91. Taken together, the court’s instruction and verdict form required the
jurors to unanimously reject the imposition of the death penalty before recommending
a life sentence, a requirement that violates federal law. Id. at 688–90; see Mills, 486
U.S. at 374–75.

In this case, the trial court read the following instruction at the end of the penalty
phase of Petitioner’s trial:

The prosecution has the burden to prove beyond a reasonable doubt that
the aggravating circumstances of which the defendant was found guilty
outweigh the factors in mitigation before the death sentence may be
signed. To outweigh means to weigh more than, to be more important
than. The existence of mitigating factors does not preclude or prevent
the death sentence, if you find beyond a reasonable doubt that the
aggravating circumstances outweigh the mitigating factors. However, if
you are not unanimously convinced by proof beyond a reasonable doubt
that the aggravating circumstances outweigh the mitigating factors, then
you must choose one of the life sentences.
If you find the aggravating circumstances and the mitigating factors to be
of equal weight, then you must choose one of the life sentences.
You shall sentence the defendant to death only if you unanimously find
by proof beyond a reasonable doubt that the aggravating circumstances
outweigh the mitigating factors.
If you do not so find, you shall consider either a sentence of life without
parole eligibility, a life sentence with parole eligibility after serving 30
full years of imprisonment, or a sentence of life without parole eligibility
after serving 25 full years of imprisonment. Verdict forms with these
four options as to each count will be furnished to you.

The verdict forms read as follows:

We, the jury in this case, being duly impaneled and sworn, having found
the defendant guilty, do unanimously find beyond a reasonable doubt that
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 33

the aggravated circumstances of which the defendant was found guilty
outweigh the mitigating factors, and we recommend that the sentence of
death be imposed.
* * * * *
We, the jury in this case, being duly impaneled and sworn, having found
the defendant guilty do not unanimously find beyond a reasonable doubt
that the aggravating circumstances of which the defendant was found
guilty outweigh the mitigating factors, and we further unanimously find
that the sentence to be imposed is a term of life imprisonment without
parole eligibility.

The instruction and verdict forms do not contain the errors we found present in
the instructions and forms at issue in Mapes and Davis. Jurors were instructed that they
could only return a death sentence if they all concluded beyond a reasonable doubt that
the aggravating factors outweighed the mitigating factors. Then, the trial court explained
that the jury was required to consider one of three other sentences “if [the jury was] not
unanimously convinced by proof beyond a reasonable doubt that the aggravating
circumstances outweigh the mitigating factors.” By making jury unanimity one of the
conditions required for the jury to return a death sentence, the instruction reasonably
implied that anything less than jury unanimity as to the balance of aggravating and
mitigating factors would require a sentence less severe than death. The second verdict
form is consistent with this interpretation. Had the jury filled out that form, it would
have ordered a life sentence because it “d[id] not unanimously” conclude beyond a
reasonable doubt that the aggravating circumstances outweighed the mitigating
circumstances. Like the trial court’s instruction, the second verdict form reasonably
implied that anything less than jury unanimity regarding the balance of aggravating and
mitigating factors would require a life sentence. Therefore, contrary to Petitioner’s
argument, it is unlikely that the jury interpreted the instruction and verdict forms used
in this case to require unanimous rejection of a death penalty recommendation.4

4
On appeal of the district court’s opinion recommending granting the writ, Petitioner argues that
the instruction, considered in the context of the entire jury charge, conveyed that the jurors needed to
unanimously agree in rejecting a death sentence in favor of a life sentence. The Supreme Court has
explained that a court hearing an Eighth Amendment challenge to jury instruction must consider the
particular challenged instruction “in the context of the overall charge.” Boyde v. California, 494 U.S. 370
(1990) (quoting Cupp v. Naughten, 414 U.S. 141, 146–47 (1973)). According to Petitioner, viewed as a
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 34

In his second argument, Petitioner contends that the jury instruction and forms
violated Beck v. Alabama. In light of the Supreme Court’s decision in Bobby v. Mitts
(“Mitts II”), 131 S. Ct. 1762 (2011) (per curiam), we conclude that the instruction and
forms do not violate Beck.

In Beck, the Supreme Court held that a jury instruction violated the Eighth
Amendment and the Due Process Clause of the Fourteenth Amendment when it
prohibited a capital jury from returning a guilty verdict on a lesser included offense to
capital murder. See Beck, 447 U.S. at 632, 643. According to the Court, the availability
of a guilty verdict on a lesser included offense aids a defendant because, “[w]here one
of the elements of the offense charged remains in doubt, but the defendant is plainly
guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” Id.
at 634. Thus, a jury could typically return a verdict on a lesser included offense if it was
uncertain that a defendant merited capital punishment, thereby ensuring the defendant’s
punishment while vindicating the jury’s concern about the defendant’s worthiness for
a death sentence. See id.

During the guilt phase of the Beck defendant’s trial, the judge did not instruct the
jury that it could return a guilty verdict on the lesser included offense of felony murder.
Id. at 630. According to the Supreme Court, the absence of such an instruction
prohibited the jury from resolving any residual doubt about the defendant’s guilt with
a life sentence. Under the instruction given by the trial court, the jury was essentially
“given the choice of either convicting the defendant of the capital crime, in which case
it [was] required to impose the death penalty, or acquitting him, thus allowing him to
escape all penalties for his alleged participation in the crime.” Id. at 628–29.

The Court concluded that this choice distorted the jury’s guilt deliberation. Id.
at 637. Because the jury was required to consider the two sentencing options while

whole, a reasonable juror would have understood the instruction in his case to require jury unanimity in
rejecting a death sentence. This argument is unpersuasive. We have already concluded that the instruction
read to the jurors in this case did not require the jurors to unanimously reject a death sentence, and viewing
the instruction in the context of the entire jury charge does not increase the likelihood that a juror would
have understood the instruction to include that requirement.
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 35

simultaneously considering the defendant’s guilt, the court’s instruction “interject[ed]
irrelevant considerations into the factfinding process” by “diverting the jury’s attention
from the central issue of whether the State has satisfied its burden of proving beyond a
reasonable doubt that the defendant is guilty of a capital crime.” Id. at 642. Regardless
of whether the jury was likely to resolve any residual doubts about the defendant’s guilt
in favor of acquittal or conviction, the diversion of the jury’s attention away from the
guilt determination “introduce[d] a level of uncertainty and unreliability into the
factfinding process that cannot be tolerated in a capital case.” Id. at 643. This
“uncertainty and unreliability” ran afoul of the constitutional prohibition on “the
‘wanton’ and ‘freakish’ imposition of the [death] penalty.” Id. at 639 (quoting Furman
v. Georgia, 408 U.S. 238, 310 (1972) (Stewart, J., concurring in the judgment)).

Shortly before we heard oral argument in Petitioner’s case, the Supreme Court
decided Smith v. Spisak, 130 S. Ct. 676, 684 (2010). In Spisak, the Supreme Court held
that an Ohio jury instruction and accompanying verdict forms did not lead members of
the jury to believe that they were required to unanimously find the existence of
individual mitigating factors and, therefore, that the instruction and forms did not violate
Mills v. Maryland. Justice Stevens concurred in the Court’s judgment but, urging the
importation of Beck into the penalty phase context, argued that the jury instruction and
forms violated Beck. Essentially positing an analogy between the Beck instruction and
the penalty-phase instruction in Spisak, Justice Stevens argued that the Spisak instruction
“deprived the jury of a meaningful opportunity to consider the third option” of a life
sentence. Spisak, 130 S. Ct. at 691 (Stevens, J., concurring in the judgment). According
to Justice Stevens, the instruction at issue in Spisak likely led the jury to believe that if
it did not sentence the defendant to death, the defendant would receive a new trial. See
id. The instruction’s failure to more clearly notify the jury of the possibility of a life
sentence made them inconsistent with Beck, in Justice Stevens’ opinion. See id.

We heard oral argument in Petitioner’s case shortly after the Supreme Court
issued Spisak. Shortly thereafter, we ordered supplemental briefing regarding the
jury-instruction issue in light of Justice Stevens’ concurring opinion in Spisak. Later
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 36

still, we remanded the case to the district court for findings of fact and conclusions of
law on the issue. See 28 U.S.C. § 2106.

The district court recommended granting the writ on the basis of Beck, Justice
Stevens’ Spisak concurrence, and our opinion in Mitts v. Bagley, 620 F.3d 650 (6th Cir.
2010) (“Mitts I”), later vacated by the Supreme Court in Mitts II. In Mitts I, this Court
adopted Justice Stevens’ reasoning and concluded that a penalty phase jury instruction
violated Beck. See Mitts I, 620 F.3d at 657–58. We read Justice Stevens’ concurring
opinion to find an instruction to violate Beck when it “only allows for consideration of
a sentence of life after consideration of the mandatory death penalty is completed by a
verdict of acquittal.” Id. at 656–57. Accordingly, we read Beck to require an instruction
to “make clear that the jury does not have to complete its death deliberation before
considering a life sentence.” Id. at 658.

The district court followed suit, concluding that the instruction given to
Petitioner’s jury “deprived the jury of a meaningful opportunity to consider the third
option” of a life sentence. Spisak, 130 S. Ct. at 691 (Stevens, J., concurring in the
judgment). The court focused on the instruction’s reference to juror unanimity, arguing
that the only logical interpretation of the instruction would require the jurors to
unanimously decide against imposing the death penalty before considering whether to
impose a life sentence. Thus, the district court concluded that the instruction violated
Beck, as interpreted by Justice Stevens in Spisak and this Court in Mitts II, because it
distorted the jury’s penalty deliberation. The court recommended that we grant
Petitioner habeas relief.

While Petitioner and the Warden briefed the district court’s recommendation, the
Supreme Court decided Mitts II. In Mitts II, the Supreme Court rejected the contention
offered by Justice Stevens and this Court that Beck applied to the sentencing phase of
a capital trial. See Mitts II, 131 S. Ct. at 1764. According to the Supreme Court, the fact
that a penalty phase jury instruction was at issue in Mitts II made Beck inapplicable:
because the jury had already found the petitioner guilty of aggravated murder, the Court
found it unlikely that jurors would be “improperly influenced by a fear that a decision
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 37

short of death would have resulted in [the petitioner] walking free.” Id. at 1765. The
Court rejected Justice Stevens’ analogy between guilt phase and penalty phase
instructions:

The jurors in [the petitioner’s] case could not have plausibly thought that
if they declined to recommend the death penalty [the petitioner] would
“escape all penalties for his alleged participation in the crime.” Beck,
[447 U.S.] at 629 []. They had just convicted him on two counts of
aggravated murder and two counts of attempted murder. They were
specifically instructed that if they did not find that the aggravating factors
outweighed the mitigating factors—and therefore did not recommend the
death penalty—they would choose from two life sentence options. There
is accordingly no reason to believe that the jurors in this case, unlike the
jurors in Beck, could have been improperly influenced by a fear that a
decision short of death would have resulted in [the petitioner] walking
free.

Id. On the basis of this reasoning, the Court concluded that a penalty phase instruction
that requires a jury to unanimously reject the death penalty before considering a life
sentence does not violate clearly established federal law, as it must in order to merit
habeas relief. See id.

The jury instruction and verdict forms in Petitioner’s case are not palpably
different than the instructions and forms at issue in Spisak and Mitts II. The instruction
and forms are little different in form and virtually identical in substance to those the
Supreme Court held constitutional. And regardless of the likeness that the instruction
and forms bear to one another, Mitts II made it clear that an argument about a Beck
violation is unavailable to a petitioner challenging his penalty-phase jury instruction.
Hence, after Mitts II, neither the district court’s nor Petitioner’s arguments carry force,
because they support a ground for habeas relief that Mitts II held is not available to
Petitioner.

On appeal of the district court’s recommendation, Petitioner attempts to
resuscitate his claim by arguing that his jury instruction runs afoul of the Ohio Supreme
Court’s ruling in State v. Brooks. In Brooks, the Ohio Supreme Court held that “a
solitary juror may prevent a death penalty recommendation by finding that the
Nos. 07-4326; 10-4592 Jackson v. Bradshaw Page 38

aggravating circumstances in the case do not outweigh the mitigating factors” and
ordered that “[j]urors from this point forward should be so instructed.” Brooks,
661 N.E.2d at 1042. As Petitioner points out, the instruction at issue in this case—which
was given two years after Brooks was decided—did not in so many words tell jurors that
a solitary one of them could prevent a death-sentence recommendation. Petitioner
argues that the trial court committed constitutional error by failing to follow Brooks, but
a simple error of state law is not cognizable on federal habeas review, absent a showing
that the error compromised the Petitioner’s due process. See Pulley v. Harris, 465 U.S.
37, 41 (1984).

In sum, the penalty phase jury instruction in Petitioner’s case did not violate the
Eighth Amendment, either by requiring the jury to unanimously agree on the
applicability of any mitigating factors or by depriving the jury of the opportunity to
recommend life in prison as an alternative sentencing option to a death sentence.

CONCLUSION

For the reasons stated above, we AFFIRM the district court’s original decision
in case number 07-4326 DENYING the petition for writ of habeas corpus and
REVERSE the district court’s order in case number 10-4592.