James Hanna v. Todd Ishee

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0321p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
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JAMES HANNA,
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Petitioner-Appellant,
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No. 09-3360
v.
,
>
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Respondent-Appellee. -
TODD ISHEE, Warden,
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Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 03-00801—Thomas M. Rose, District Judge.
Argued: January 19, 2012
Decided and Filed: September 11, 2012
Before: SILER, CLAY, and McKEAGUE, Circuit Judges.

_________________

COUNSEL
ARGUED: Tyson L. Fleming, OFFICE OF THE OHIO PUBLIC DEFENDER,
Columbus, Ohio, for Appellant. Thomas E. Madden, OFFICE OF THE OHIO
ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Tyson L.
Fleming, Rachel Troutman, OFFICE OF THE OHIO PUBLIC DEFENDER, Columbus,
Ohio, for Appellant. Thomas E. Madden, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellee.
_________________

OPINION
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CLAY, Circuit Judge. Petitioner James Hanna was convicted of aggravated
murder by an Ohio jury and sentenced to death. He appeals an order by the district court
denying his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. For
the reasons set forth below, we AFFIRM the district court’s judgment denying the
petition.

1
No. 09-3360 Hanna v. Ishee Page 2

BACKGROUND

I. The Crime

The facts underlying Petitioner’s conviction, as derived from the Ohio Supreme
Court’s decision denying Petitioner’s direct appeal, are not in dispute:

In the late summer of 1997, Petitioner was an Ohio state inmate housed at the
Lebanon Correctional Institution (LCI), located in Lebanon, Ohio. Petitioner was
nineteen years into a life sentence for murder and aggravated murder when, around
August 18, 1997, he was assigned a new cellmate, Peter Copas. The two had been
cellmates for only four days when Petitioner brutally attacked Copas in his sleep.
Although Copas initially survived the attack, he developed an infection and succumbed
to his injuries several days later.

From the outset of the rooming arrangement, the relationship between Petitioner
and Copas was strained. Petitioner was upset with prison officials for moving Copas
into his cell without prior notification. His displeasure only mounted after Copas proved
to be a less than ideal cellmate, using Petitioner’s belongings without permission,
unilaterally rearranging their cell, breaking Petitioner’s TV set, and leaving the cell door
open, resulting in the theft of some of Petitioner’s property. The pair had words over
these events and within two days of moving in together, Copas filed a formal transfer
request, stating that he and Petitioner were “unable to co-exist.”

On the evening of August 21, 1997, Copas returned to their cell drunk, crawled
onto his top bunk, and vomited. According to Petitioner’s later statements, at that point
he decided he had “had enough.” Around 4:00 or 5:00 a.m. that morning, Petitioner
sharpened the tip of a paintbrush handle and lit it with matches to stiffen it into a shank.
He then removed a padlock from Copas’ lock box and placed it inside the end of a sock
to create an additional weapon. As Copas slept, Petitioner stood up from his bunk,
approached his cellmate, and thrust the paintbrush deep into Copas’ closed eyesocket.

Copas awoke and demanded, “Why the hell did you do that?” Petitioner
responded by bludgeoning his victim with his fists and the padlock, beating Copas into
No. 09-3360 Hanna v. Ishee Page 3

unconsciousness. Petitioner then flushed the paintbrush handle and the sock down the
toilet, replaced Copas’ lock, and returned to his own bed to smoke a cigarette.

Around 6:00 a.m., Copas regained consciousness and ran to the cell door,
screaming, “My celly’s trying to kill me!” A corrections officer discovered Copas
bleeding profusely at the door of the cell. Copas was taken to the prison infirmary, and
Petitioner was handcuffed. When a guard asked what happened, Petitioner responded,
“I told them not to put him in here with me.”

Copas was transferred to the Middletown Regional Hospital for treatment of his
injuries. The emergency room physician, however, did not realize that Copas had been
stabbed, because the prison infirmary did not report such an injury, and Copas
apparently did not notify anyone either. The physician saw no indication of a foreign
object, and x-rays taken of Copas’ face and skull were negative. The emergency room
physician did not order a CAT scan.

Copas was treated at the hospital for superficial injuries and returned to the
prison. Once there, however, LCI’s medical director became concerned that Copas
might have suffered a concussion during the attack. Four days later, a CAT scan was
taken which revealed five inches of the wooden paintbrush handle lodged in Copas’
skull, just behind his severely swollen right eye. Doctors immediately performed
surgery, and Copas appeared to recover quickly. However, on September 5, 1997,
Copas developed a post-surgical infection. His condition rapidly deteriorated, and he
lapsed into a coma. He died on September 10, 1997, nineteen days after the attack.

According to statements Petitioner later made to authorities and in letters he
wrote to a fellow inmate, Petitioner admitted the attack and provided some insight into
his underlying motivations. Petitioner explained that he chose to stab Copas in the eye
because “the ear is too hard. You would use an ice pick in the ear. The eye is much
softer.” Petitioner also bragged that he “stabbed one of [Copas’] eyeballs up out of its
socket.” Petitioner explained that he “didn’t mean for the [paintbrush] to break,” and that
he “wanted it to go further in than what it did, but it broke off.” Petitioner told his friend
that “those idiots of the administration there wouldn’t move [Copas] the hell out of my
No. 09-3360 Hanna v. Ishee Page 4

cell, so I took him out of his misery.” Petitioner described “beat[ing] all on his stupid-
ass-head off-and-on for two hours.” Petitioner also allegedly told another LCI inmate
that he tried to “bash the motherfucker’s brains in” because Copas “had turned his TV
off on him.” See State v. Hanna, 767 N.E.2d 678, 686–89 (Ohio 2002).

II. The Guilt Phase of Trial

On January 26, 1998, a Warren County, Ohio grand jury issued a two-count
indictment against Petitioner for (1) aggravated murder with prior calculation and
design, in violation of Ohio Rev. Code Ann. § 2903.01; and (2) possession of a deadly
weapon while under detention, in violation of Ohio Rev. Code Ann. § 2923.131(B). The
murder charge was designated a capital crime pursuant to three aggravating
specifications: (1) commission of the offense while in a detention facility, under Ohio
Rev. Code Ann. § 2929.04(A)(4); (2) being a repeat offender of an offense including as
an essential element the purposeful killing or intent to kill another, under Ohio Rev.
Code Ann. § 2929.04(A)(5); and (3) being a repeat violent offender under Ohio Rev.
Code. Ann. § 2929.01. The possession of a deadly weapon charge was also subject to
a repeat offender specification under Ohio Rev. Code Ann. § 2941.149.

Petitioner was appointed counsel and proceeded to a fifteen-day jury trial in the
Warren County Court of Common Pleas. The state’s case against Petitioner consisted
primarily of medical records, the testimony of prison officials and medical personnel,
statements made by Petitioner to prison authorities following the attack, and letters
Petitioner wrote to his friend, an inmate housed at another correctional institution.

Petitioner’s defense dealt almost exclusively with his intent during the attack.
He argued that he did not intend to kill Copas when he attacked him. Although trial
counsel suggested that Copas’ death was at least partially attributable to errors
committed in his medical treatment, Petitioner did not formally pursue an intervening
cause defense.

As evidence of Petitioner’s intent, the state emphasized Petitioner’s statements
to authorities after the crime and the incriminating letters Petitioner wrote to his friend.
No. 09-3360 Hanna v. Ishee Page 5

The state also introduced the testimony of James Ertel, a trooper who interviewed all the
inmates housed on the same cell block as Petitioner and Copas. Trooper Ertel prepared
an incident report that provided some background about the animosity between the
cellmates and the overall tenor of the cell block’s environment. Significant to the
arguments before us, the state also called Ricardo Lee, a fellow LCI inmate who was a
friend of Copas and who claimed to have knowledge about the cellmates’ deteriorating
relationship prior to the crime.

Based on the above evidence, the jury found Petitioner guilty of aggravated
murder and the § 2929.04(A)(4) specification. The trial judge separately found
Petitioner guilty of the §§ 2929.04(A)(5) and 2929.01 specifications. The deadly
weapon charge was dismissed on the state’s motion.

III. The Penalty Phase of Trial

Following the guilty verdicts, the trial court held a separate penalty proceeding
on November 9 and 10, 1998. At the penalty hearing, defense counsel presented
testimony by a psychologist, Petitioner’s sister, an Ohio state trooper, and a corrections
employee. Petitioner also made an unsworn statement, expressing remorse for his
actions and asking the jury to consider the fact that he would be confined to maximum
security isolation if they returned a sentence of life imprisonment. After less than a
dayof deliberation, the jury recommended the death penalty. The trial court entered final
judgment on November 20, 1998, sentencing Petitioner to death.

IV. Subsequent Proceedings

On December 22, 1999, Petitioner filed for post-conviction relief before the state
trial court, pursuant to Ohio Rev. Code Ann. § 2953.21. The trial court denied relief
without discovery or an evidentiary hearing on March 22, 2001. State v. Hanna, No.
98CR17677, 2001 WL 3604367 (Ohio Ct. Com. Pl. Mar. 22, 2001) (“Hanna II”).
Petitioner appealed, asserting three assignments of error. The Twelfth Circuit District
Court of Appeals affirmed. State v. Hanna, No. CA 2001-04-032, 2002 WL 4529 (Ohio.
Ct. App. Dec. 31, 2001) (“Hanna III”). The Supreme Court of Ohio denied a petition
No. 09-3360 Hanna v. Ishee Page 6

for review and a motion for reconsideration. State v. Hanna, 770 N.E.2d 1048 (Ohio
2002) (table); State v. Hanna, 770 N.E.2d 1050 (Ohio 2002) (table).

In appealing his conviction and sentence to the Supreme Court of Ohio,
Petitioner presented fifteen assignments of error.1 The court unanimously affirmed the
conviction and sentence on May 22, 2002. State v. Hanna 767 N.E.2d 678 (Ohio 2002)
(“Hanna I”). Petitioner sought a writ of certiorari from the United States Supreme
Court, which was denied on November 18, 2002. Hanna v. Ohio, 537 U.S. 1036 (2002).

On September 25, 2003, Petitioner notified the United States District Court for
the Southern District of Ohio that he intended to seek a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Petitioner requested appointment of counsel and leave to proceed
in forma pauperis, which the district court granted. On November 17, 2003, Petitioner
filed a federal habeas petition, asserting ten grounds for relief.

Petitioner filed several motions for further discovery before the district court.
He also filed a motion for an evidentiary hearing in order to develop his claims of a
Brady violation and of ineffective assistance during the penalty phase of his trial. The
district court granted Petitioner’s request for additional discovery. On March 20 and 21,
2007, the magistrate judge conducted a two-day evidentiary hearing.

On November 18, 2008, the magistrate judge issued a report and
recommendation (R&R) that recommended denying Petitioner the writ of habeas corpus.
Petitioner filed objections to the R&R, and the state filed a response. On February 26,
2009, the district court adopted the magistrate judge’s report in full and denied the
petition. Hanna v. Ishee, No. C-1:03-cv-801, 2009 WL 485487 (S.D. Ohio Feb. 26,
2009) (“Hanna IV”).

The district court granted a certificate of appealability (COA) on one claim, part
of another, and four subclaims. Petitioner requested an expansion of the COA from this

1
A defendant sentenced to death under Ohio Rev. Code Ann. § 2904 is entitled to an appeal as
of right before the Supreme Court of Ohio. Along with the other issues presented on appeal, the state
supreme court must independently weigh the aggravating circumstances against the mitigating factors to
review the appropriateness and proportionality of the death sentence. Ohio Rev. Code. Ann. § 2929.05(A).
No. 09-3360 Hanna v. Ishee Page 7

Court, which was denied. On January 4th, 2011, Petitioner filed the present appeal,
alleging four assignments of error.2 The district court had jurisdiction pursuant to
28 U.S.C. § 2254. This Court takes jurisdiction under 28 U.S.C. § 2253(a).

DISCUSSION

I. Legal Framework

A. Standard of Review

Because Petitioner filed his petition for a writ of habeas corpus after the effective
date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we review
the district court’s legal conclusions de novo and its factual findings for clear error.
Smith v. Mitchell, 567 F.3d 246, 255 (6th Cir. 2009). Pursuant to AEDPA, a federal
court shall not grant a habeas petition with respect to any claim adjudicated on the merits
in state court unless the state 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 state court’s 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 decides a case differently than the Supreme Court on
a set of materially indistinguishable facts.” Lundgren v. Mitchell, 440 F.3d 754, 762–63
(6th Cir. 2006) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000))
(internal quotations and alterations omitted). A state court decision is “an unreasonable
application of clearly established federal law” if “the state court identifies the correct

2
Petitioner did not brief his subclaim argument that he received ineffective assistance because
his counsel failed to present significant mitigation evidence from his siblings. Accordingly, this argument
is deemed abandoned. See Robinson v. Jones, 142 F.3d 905, 906 (6th Cir. 1998).
No. 09-3360 Hanna v. Ishee Page 8

governing legal principle but unreasonably applies that principle to the facts of the
[petitioner’s] case.” Id. at 763. Clearly established federal law is determined by the
holdings, as opposed to the dicta, of the Supreme Court’s decisions as of the time of the
relevant state court decision. Id.

The Supreme Court has stressed that AEDPA’s standard is “difficult to meet”
and “demands that [state court] decisions be given the benefit of the doubt.” Cullen v.
Pinholster, 131 S. Ct. 1388, 1398 (2011) (internal quotations and citations omitted). A
state court’s factual determinations are entitled to a “presumption of correctness,” only
rebuttable by “clear and convincing evidence” that the state court based its determination
on an “unreasonable determination of the facts.” See Schriro v. Landrigan, 550 U.S.
465, 473–74 (2007). In reviewing whether a state court decision was an unreasonable
application of federal law, we must remain mindful that “an unreasonable application of
federal law is different from an incorrect [one],” Williams, 529 U.S. at 410, and decline
to award habeas relief where fairminded jurists could disagree on the correctness of
the state court’s decision. Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (citing
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

Recently, the Supreme Court further limited review under § 2254(d) “to the
record that was before the state court that adjudicated the claim on the merits.”
Pinholster, 131 S. Ct. at 1398. Thus, even if a petitioner was granted an evidentiary
hearing pursuant to § 2254(e),3 the federal court must disregard newly obtained
evidence that supports a claim that was previously adjudicated on the merits before the
state court. Id. Pinholster suggested, however, that the prohibition on new evidence
might not always apply, using as an example the hypothetical defendant who diligently
pursues his claim through the state courts, but nevertheless presents a “new claim” in

3
Section 2254(e) provides an incentive to diligently investigate and pursue claims in state court
by instructing that a petitioner who has “failed to develop the factual basis of a claim” before the state
courts should not be granted an evidentiary hearing on federal review, unless the claim relies on (1) a new,
previously unavailable rule of constitutional law, or (2) facts that could not have been previously
discovered through the exercise of due diligence.
A federal evidentiary hearing is also inappropriate unless the newly obtained evidence would be
sufficient to establish, by clear and convincing evidence, that but for the constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense. See Williams, 529 U.S. at 435.
No. 09-3360 Hanna v. Ishee Page 9

federal court because of the forced production of evidence previously made unavailable
to him during his state court proceedings. See Pinholster, 131 S. Ct. at 1401 n.10
(Thomas, J. majority); Id. at 1417–18 (Sotomayor, J. dissenting). The Supreme Court,
however, declined to decide “where to draw the line between new claims and claims
adjudicated on the merits.” Id. at 1401 n.10.

B. Procedural Bars

1. Exhaustion

AEDPA’s standard of review applies only to claims that have been properly
exhausted before the state courts. Section 2254(b)(1) provides that a federal court may
not award habeas relief to an applicant in state custody “unless it appears that . . . the
applicant has exhausted the remedies available in the courts of the State; or . . . there is
an absence of available State corrective process.” To meet AEDPA’s exhaustion
requirement, we require a petitioner to prove that: (a) he has exhausted the remedies
available in the courts of the state; (b) there is an absence of state corrective process; or
(c) existing circumstances render the state’s process ineffective to protect the petitioner’s
rights. D’Ambrosio v. Bagley, 527 F.3d 489, 495 (6th Cir. 2008). A claim is “fairly
presented” for exhaustion purposes where the petitioner presented both the factual and
legal basis for his claim to the state courts. McMeans v. Brigano, 228 F.3d 674, 681
(6th Cir. 2000) (citing Franklin v. Rose, 811 F.2d 322, 324–25 (6th Cir. 1987)).

2. Procedural Default

A claim is also exhausted under § 2254(b) when it is clear that a petitioner would
be barred from review due to a state procedural bar. See Gray v. Netherland, 518 U.S.
152, 161–62 (1996). In such a case, though exhausted for AEDPA’s purposes, the
procedural default doctrine nevertheless bars federal review of the claim if the petitioner
failed to comply with the state’s adequate and independent procedural requirements. See
Wainwright v. Sykes, 433 U.S. 72, 87 (1977). For purposes of determining procedural
default, we look to the “last explained state court judgment.” Munson v. Kapture,
384 F.3d 310, 314 (6th Cir. 2004) (emphasis removed) (citing Yist v. Nunnemaker,
No. 09-3360 Hanna v. Ishee Page 10

501 U.S. 797, 805 (1991)). When that decision rests upon procedural default as “an
alternative ground,” we may, but are not required to, reach the merits of the claim on
habeas review. McBee v. Abramajtys, 929 F.2d 264, 265 (6th Cir. 1991).

This Court applies a four-pronged analysis to determine whether a claim has been
procedurally defaulted, looking to whether:

(1) the petitioner failed to comply with an applicable state procedural
rule;
(2) the state courts actually enforced the state procedural sanction;
(3) the state procedural bar provides an adequate and independent
state ground by which the state has foreclosed federal review; and
(4) if procedurally barred, whether the petitioner can demonstrate
“cause” and “prejudice”,” or a “fundamental miscarriage of
justice” to excuse the default.

See Murray v. Carter, 477 U.S. 478, 495–96 (1986); Maupin v. Smith, 785 F.2d 135, 138
(6th Cir. 1986). To show cause, the petitioner must demonstrate some objective factor
external to his defense that impeded his counsel’s efforts to comply with the state’s
procedural rule. Murray, 477 U.S. at 488. To demonstrate prejudice, the petitioner must
show more than the mere possibility of prejudice, but instead that the error worked to his
actual and substantial disadvantage, “infecting his entire trial with an error of
constitutional dimensions.”4 Id. at 494.

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.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
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)).

With this framework in mind, we review Petitioner’s claims for relief.

4
A petitioner may also assert that his case raises a fundamental miscarriage of justice by arguing
that he is actually innocent of the crime for which he was convicted. Schlup v. Delo, 513 U.S. 298, 314–15
(1995). Petitioner does not raise a Schlup actual-innocence claim in this case.
No. 09-3360 Hanna v. Ishee Page 11

II. Brady v. Maryland

A. Introduction

In Petitioner’s first claim for relief, he argues that the state violated Brady v.
Maryland, 373 U.S. 83 (1963), when it suppressed evidence relating to witness Ricardo
Lee. Lee, a fellow LCI inmate, was friends with Copas. According to Lee, he and
Copas applied for a rooming transfer shortly before the attack because they wanted to
be cellmates. Lee contended that, while waiting for the transfer to be processed, he
attempted to act as a peacemaker between Petitioner and Copas. Lee recounted several
conversations he had with Petitioner, including one the day before the attack, when
Petitioner allegedly told Lee that “[Lee] had better do something because his wick was
getting short.” In an effort to impeach Lee’s credibility, the defense asked whether Lee
expected to receive or in fact received any consideration from the state in exchange for
his testimony. Lee denied exchanging any expectation or benefit for his testimony.

Later in the trial, the prosecution called an officer with the State Highway Patrol,
Trooper James Ertel. Trooper Ertel visited LCI shortly after the attack and interviewed
sixty-nine individuals, including Petitioner, Lee, and the other inmates housed on their
cell block. Trooper Ertel prepared an extensive incident report (the “Ertel Report”)
memorializing these interviews, of which only portions were turned over to the defense
before trial. During his testimony, Trooper Ertel made several statements alluding to
potential Brady material that had not been disclosed to the defense. The trial judge
immediately recessed the court, ordered all Brady material contained in the report to be
disclosed to the defense, and granted defense counsel a weekend to review any newly
obtained material.

On direct appeal and in his post-conviction petition, Petitioner argued that the
prosecution’s handling of the Ertel Report violated Brady in two respects. First, he
contended that by failing to timely disclose certain portions of the Ertel Report, the state
deprived him of potential impeachment evidence. Additionally, Petitioner broadly
accused the prosecution of continuing to withhold relevant Brady material either
No. 09-3360 Hanna v. Ishee Page 12

contained in the Ertel Report or that related to LCI’s other inmates. The state courts
denied Petitioner’s delayed disclosure claim on all levels and rejected Petitioner’s
continued suppression claim, reasoning that it was speculative and otherwise
unsupported by the record. Hanna I, 767 N.E.2d at 693–94; Hanna III, 2002 WL 4529,
at *7.

On federal habeas review, Petitioner renewed his claim that the prosecution
continued to withhold relevant Brady material.5 In the interest of “clos[ing] the loop,”
the magistrate judge granted Petitioner full access to the prosecutor’s files. There,
Petitioner discovered Lee’s prison disciplinary records and several letters written by Lee
to the state prosecutor prior to trial.

In the first letter, dated June 17, 1998, Lee wrote that his “one objection to
testifying on behalf of the state” was his concern for his continued safety at LCI should
the other inmates learn he was a cooperating witness for the prosecution. Lee stated that
he lacked “sufficient protection” from the other inmates and that he felt he had “no
safety” at LCI. Lee categorically demanded to “be transferred to another prison” or else
he would “refuse to honor any subpeanoe [sic].” Within a week of Lee’s letter, he was
transferred to a lower security correctional institution, despite the fact that his
disciplinary records were inconsistent with such a transfer. The transfer documents
indicate that Lee was moved at the request of the “Warren County Prosecutor” due to a
“concern for [Lee’s] safety.” Shortly thereafter, Lee wrote a second letter to the
prosecutor, dated June 28, 1998, expressing his “satisfact[ion]” with the transfer and his
readiness “to carry out [his] duty as a competent witness.” Lee affirmed that he was
“pleased with his living conditions and available anytime.”

Based on this new information, Petitioner argued that the state improperly
withheld significant impeachment information regarding Lee’s testimony.6 Petitioner

5
Petitioner also renewed his delayed disclosure claim; however, that issue was not certified for
appeal.
6
Petitioner also renewed his claim of tardy disclosure; however, that argument has not been
certified for appeal.
No. 09-3360 Hanna v. Ishee Page 13

accused the prosecutor of making a tacit arrangement to transfer Lee to a lower-security
prison in exchange for his testimony and of being complicit in Lee’s false statements to
the contrary at trial. The state disputes Petitioner’s interpretation, contending that the
letters demonstrate only a concern for Lee’s safety. In support, the state points to the
prosecutor’s testimony at the federal evidentiary hearing, affirming that the institutional
transfer was for security purposes only and that the state did not consider the transfer to
be consideration traded for Lee’s testimony. The district court denied Petitioner’s Brady
claim on the merits, finding that although the letters indicated that Lee probably sought
special consideration for his testimony, there was “no evidence of a corresponding
assurance or promise from [the prosecutor].” Hanna IV, 2009 WL 485487, at *26.

B. Procedural Posture

Before addressing the merits of this claim, it is necessary to address the state’s
argument that Petitioner’s Brady claim is unreviewable on federal habeas appeal.
According to the state, Petitioner’s current Brady claim is unexhausted, because the
argument now before us is allegedly substantially different than the one Petitioner
presented to the state courts. Petitioner counters that he exhausted this claim when he
generally accused the state of continuing to withhold Brady material about LCI’s
inmates, including Lee. Petitioner also contends that any shortcomings in his efforts to
exhaust should be excused based on the state’s continued misconduct.

Although we agree that Petitioner diligently advocated for the broad release of
all potential Brady material throughout his state proceedings, it is clear that the state
courts were not fairly presented with the argument now made before this Court.
Whether or not Petitioner’s efforts to exhaust were sufficient, his current claim is easily
distinguishable because the factual basis supporting his arguments has changed
dramatically. See Williams v. Taylor, 529 U.S. 420, 437 (2000) (noting that a claim is
only exhausted where the defendant has presented the state courts with both the legal and
the factual bases supporting the claim). Accordingly, Petitioner’s present Brady claim
is unexhausted.
No. 09-3360 Hanna v. Ishee Page 14

Even if we could excuse Petitioner’s failure to exhaust, the circumstances of this
claim arguably play into Pinholster’s distinction between unexhausted claims and so-
called “new claims.” See Pinholster, 131 S. Ct. at 1401 n.10; id. at 1417–18
(Sotomayor, J. dissenting).7 In Pinholster, the Supreme Court suggested that its
restrictions might not apply where, as Petitioner alleges is the case here, new evidence
emerges in federal habeas proceedings due to prosecutorial misconduct. Id. The
Supreme Court noted that such new evidence might transform a previously unexhausted
claim into a “new claim” nevertheless appropriate for federal habeas review. Id.
However, neither this Court nor the Supreme Court has yet had occasion to develop this
distinction, and because disposition of this issue is not required to deny relief on
Petitioner’s claim, we decline to do so here.

C. Legal Framework

Nevertheless, this Court may deny relief on the merits, notwithstanding a failure
to exhaust, where appropriate. See 28 U.S.C. § 2254(b)(2). Because we are convinced
that the newly discovered evidence does not entitle Petitioner to relief on this
unexhausted claim, we elect to deny this claim on its merits.

Under Brady v. Maryland, 373 U.S. 83, 87 (1963), a defendant’s due process
rights are violated if the prosecution suppresses material exculpatory evidence that is
favorable to the defense. Likewise, the prosecution violates Brady if it fails to honor a
defense request for specific exculpatory evidence or if it fails to volunteer evidence not
requested by the defense, or requested only generally. Kyles v. Whitley, 514 U.S. 419,
433 (1995); United States v. Frost, 125 F.3d 346, 382 (6th Cir. 1997). Brady applies
regardless of the good or bad faith of the prosecution. Strickler v. Greene, 527 U.S. 263,

7
The state appears to concede that, if we were inclined to excuse Petitioner’s failure to exhaust,
Petitioner would not be precluded under Ohio law from raising the new evidence supporting this claim in
state proceedings. See Ohio Rev. Code § 2953.23(A)(1) (providing that a petitioner’s second or successive
petition for post-conviction relief will not be entertained unless the petitioner can show that he was
“unavoidably prevented from discover[ing] the facts” and that “clear and convincing evidence” show that,
“but for the constitutional error at trial, no reasonable factfinder would have found the petitioner guilty .
. . or eligible for the death sentence.”); see also Ohio Crim. Rule 33(6) (providing similarly that a
defendant may seek a new trial when “new evidence material to the defense is discovered which the
defendant could not with reasonable diligence have discovered and produced at the trial.”)
No. 09-3360 Hanna v. Ishee Page 15

280 (1999). In addition to showing that the prosecution withheld evidence, establishing
a Brady violation requires a defendant to show that: (1) the evidence at issue was
favorable to the accused, either because it was exculpatory or it was impeaching, id. at
281–82; and (2) the evidence was material, such that “there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding would
have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985); Jells v.
Mitchell, 538 F.3d 478, 501–02 (6th Cir. 2008).

D. Application

The district court denied this claim because, at least within this Circuit, evidence
that a witness sought consideration for his testimony is only Brady material if there is
cause to believe that the witness actually reached an express or tacit agreement with the
prosecution in exchange for his testimony. See Bell v. Bell, 512 F.3d 223, 232–33 (6th
Cir. 2008) (en banc) (citing United States v. Risha, 445 F.3d 298, 303 n.5 (3d Cir.
2006)); see also Giglio v. United States, 405 U.S. 150, 154–55 (1972); cf. United States
v. Risha, 445 F.3d 298, 303 n.5 (3d Cir. 2006). Regardless of whether our stance
qualifies as clearly established federal law, this case is arguably distinguishable from
Bell in that the circumstances at least strongly imply that Lee was transferred in an effort
to secure his willingness to testify. Whether that action was taken solely out of a
concern for Lee’s safety, or whether it was procured in consideration for his testimony,
is not a factual dispute that we need resolve. Moreover, because this factual dispute
could not be fully explored without the benefit of additional testimony which may be
barred by Pinholster, we refuse to opine on whether the Lee letters actually qualify as
Brady material.

Rather, even crediting Petitioner’s interpretation of the letters and presuming that
they ought to have been disclosed, Petitioner cannot obtain relief on this claim.
Ultimately, Petitioner is unable to meet Brady’s materiality requirement, because the Lee
letters cannot “reasonably be taken to put the whole case in such a different light as to
undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435–36 (1995).
Likewise, Petitioner cannot show a reasonable probability that, had the evidence been
No. 09-3360 Hanna v. Ishee Page 16

disclosed to the defense, his punishment would have been different. Strickler, 527 U.S.
at 280.

Petitioner’s defense rested nearly exclusively on the question of his intent at the
time of the attack. On this score, Lee’s testimony was of relatively minimal importance.
Lee only corroborated a larger presentation of uncontested evidence showing escalating
disputes between Petitioner and Copas preceding the attack. However, the defense did
not dispute that Petitioner and Copas were openly hostile towards one another. And
although Lee bolstered the government’s case for motive, his testimony provided no
additional insight into Petitioner’s mind during the attack itself.

Petitioner reiterates the theory he put to the jury at trial—namely, that Lee was
an instigator and active participant in Copas’ threats against Petitioner, not the altruistic
conciliator Lee made himself out to be at trial. However, Petitioner never argued that
he was so threatened by Lee, Copas, or Copas’ other friends that the attack was an act
of self-defense. Likewise, Petitioner never argued that he attacked Copas in a misguided
effort to assert his dominance or to secure his future safety in a violent prison
environment. Accordingly, even had Lee been fully impeached and the jury been
convinced that Lee or Copas had previously threatened Petitioner, these victories would
not have affected Petitioner’s concessions that the attack was committed while Copas
was intoxicated and unconscious.

By contrast, Petitioner’s own admissions provided the most probative evidence
as to his intent during the attack—i.e., that he tried to stab the paintbrush in further, but
that it broke off; that he chose to stab his victim in the eye, rather than in the ear, because
“the eye is softer;” that he “took [Copas] out of his misery;” and that he “tried to bash
the motherfucker’s brains in.” Compared against such statements, Lee’s testimony about
prior disagreements between the cellmates was not material. Accordingly, we cannot
reasonably conclude that the result of the proceeding would have been any different had
the defense successfully impeached Lee with the suppressed evidence.

Our conclusion carries through equally to the penalty phase of the trial. In
presenting his case for mitigation, Petitioner deliberately eschewed arguments that
No. 09-3360 Hanna v. Ishee Page 17

focused on the dangerousness of the prison environment or that argued that Petitioner
was only violent when provoked or when he needed to protect himself. Had Petitioner
pursued mitigation evidence of this type, Lee’s testimony might have been more
relevant. However, the defense deliberately avoided evidence that risked highlighting
to the jury Petitioner’s prior disciplinary infractions, as well as evidence that might have
inflamed the jurors regarding the dangers of the prison environment. Accordingly, Lee’s
testimony was wholly immaterial to Petitioner’s case in mitigation.

Because Petitioner’s Brady claim is unexhausted and because he cannot
demonstrate that the suppressed evidence undermines our confidence either in the
verdict or in the punishment imposed, Petitioner cannot succeed under his first theory
for relief.

III. Strickland v. Washington

Petitioner next claims that he suffered ineffective assistance of counsel during
both the guilt and penalty phases of his trial. First, he argues that his trial counsel was
ineffective in failing to discover that one of the jurors was ineligible for jury duty.
Second, he contends that his trial counsel was ineffective for failing to present expert
testimony regarding the impact of long term incarceration on Petitioner’s psyche and
conduct. Neither claim merits relief.

A. Legal Framework

Claims of ineffective assistance of counsel are analyzed under the familiar two-
part performance and prejudice framework established in Strickland v. Washington,
466 U.S. 668 (1984). See Darden v. Wainwright, 477 U.S. 168, 184 (1986).

A convicted defendant’s claim that counsel’s assistance was so defective
as to require reversal of a conviction or death sentence has two
components. First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the defendant
No. 09-3360 Hanna v. Ishee Page 18

of a fair trial, a trial whose result is reliable. Unless a defendant makes
both showings, it cannot be said that the conviction or death sentence
resulted from a breakdown in the adversary process that renders the
result unreliable.

Strickland, 466 U.S. at 687. “Ineffectiveness is not a question of basic, primary, or
historical fact,” but rather is “a mixed question of law and fact.” Id. at 698.

This Court determines whether counsel’s performance was deficient by reference
to an objective standard of reasonableness, based on prevailing professional norms.
Rickman v. Bell, 131 F.3d 1150, 1154 (6th Cir. 1997) (citing Strickland, 466 U.S. at
688). Counsel’s performance must be assessed according to the time of representation,
rather than viewed with the benefit of hindsight. 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.”). Because
of the inherent difficulties in making this determination, this Court must “indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. The burden rests on the defendant to overcome the
presumption that the challenged conduct might be considered sound trial strategy. Id.

In order to demonstrate prejudice, a “defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. A reasonable probability is defined
as “a probability sufficient to undermine confidence in the outcome”; certainty of a
different outcome is not required. Id. “Thus, analysis focusing solely on mere outcome
determination, without attention to whether the proceeding was fundamentally unfair or
unreliable, is defective.” Lockhart v. Fretwell, 506 U.S. 364, 369 (1993).

B. Failure to Discover Ineligible Juror

Petitioner’s first Strickland-based claim focuses on his counsel’s failure to
discover that one of the individuals who served on his jury panel was a convicted felon,
and thus, ineligible for jury service under Ohio law. See Ohio Rev. Code Ann.
No. 09-3360 Hanna v. Ishee Page 19

§ 2961.01. Although the venire of prospective jurors was asked about their criminal
histories in a written questionnaire, the juror at issue submitted responses that did not
make his felon status immediately apparent. Petitioner claims that effective voir dire
would have resolved any ambiguities in the juror’s responses and automatically
disqualified him from sitting on the panel. In his federal habeas appeal, Petitioner
supplements this claim with evidence he alleges demonstrates that the juror was
traumatized by exposure to prison violence during his own incarceration. Petitioner
argues that the juror’s personal background rendered him a particularly biased and
inappropriate person to judge Petitioner’s guilt.

1. Procedural Posture

Before we can turn to the merits, we first consider the state’s argument that
Petitioner’s claim is procedurally defaulted under Ohio’s res judicata doctrine.

Petitioner did not raise this claim on direct appeal, but he included it in his post-
conviction petition and his post-conviction appeal. The Ohio Court of Appeals and the
Ohio Supreme Court considered and rejected this claim under both Sixth Amendment
and ineffective assistance of counsel theories. The state courts reasoned that although
nothing had prevented trial counsel from inquiring into the juror’s felon status on voir
dire, the record did not otherwise establish that whatever errors counsel might have
committed deprived Petitioner of his right to a fair trial. See Hanna II, 2001 WL
3604367, slip op. at 1–3; Hanna III, 2002 WL 4529, at *4–5. As to Petitioner’s
ineffective assistance of counsel claim, the Ohio Supreme Court also found that it was
precluded from granting relief because the claim was barred by Ohio’s res judicata
doctrine. Hanna III, 2002 WL 4529, at *5–6. In finding Petitioner’s claim procedurally
defaulted, the Ohio Court of Appeals reasoned that Petitioner could have raised his
Strickland claim on direct appeal and that his failure to do so was not based on any
evidence submitted outside the original trial record. Id. After careful consideration, we
conclude that the Ohio Court of Appeals’ decision precludes us from granting federal
habeas relief on this claim.
No. 09-3360 Hanna v. Ishee Page 20

Ohio Rev. Code Ann. § 2953.21(J), the state’s post-conviction statute, provides
the exclusive remedy for collaterally attacking a criminal conviction. Under Ohio’s
post-conviction procedure, two variants of res judicata apply to the collateral review of
a criminal judgment. Durr v. Mitchell, 487 F.3d 423, 434 (6th Cir. 2007) (citing
Lundgren v. Mitchell, 440 F.3d 754, 765 n.2 (6th Cir. 2006)). A claim is res judicata if
(1) the petitioner could have brought a claim on direct appeal, but failed to do so; or (2)
the claim was actually brought and decided on direct appeal. Thus, under Ohio’s res
judicata doctrine, a defendant may not raise a claim in a post-conviction proceeding that
either could have been or actually was fully litigated at trial or on direct appeal. See
Agee v. Russell, 751 N.E.2d 1043, 1049 (Ohio 2001). Pursuant to AEDPA, the state
court’s application of the res judicata doctrine constitutes an adequate and independent
state ground barring federal habeas relief. Durr, 487 F.3d at 432 (citing Coleman v.
Mitchell, 268 F.3d 417, 429 (6th Cir. 2001)); Seymour v. Walker, 224 F.3d 542, 555 (6th
Cir. 2000); see also Wainwright, 433 U.S. at 87. Accordingly, Petitioner’s procedural
default precludes relief unless he can show cause excusing his failure to follow the
state’s rule and prejudice resulting therefrom. Maupin, 785 F.2d at 138.

In assessing this question, we begin by noting that Ohio treats the post-conviction
review of an ineffective assistance of counsel claim somewhat differently than we do in
federal court. This Court generally demurs from addressing an ineffective assistance
claim on direct appeal, because of the limited opportunity to develop and include record
evidence that would bear on the merits of such an allegation. See, e.g., United States v.
Williams, 612 F.3d 500, 508 (6th Cir. 2010). The Ohio courts, by contrast, allow an
ineffective assistance of counsel claim to be raised on direct appeal, and in fact,
encourage it, because they apply the res judicata doctrine to Strickland claims, just as
they would to any other, despite the comparative evidentiary limitations concomitant on
direct appeal. See, e.g., State v. Cole, 443 N.E.2d 169, 170 (Ohio 1982) (syllabus).

Nevertheless, Ohio has recognized two narrow exceptions which circumvent res
judicata’s application and provide a petitioner with the opportunity to raise a
Strickland claim for the first time on post-conviction review. Only one exception is
No. 09-3360 Hanna v. Ishee Page 21

relevant here.8 Pursuant to Ohio law, a petitioner may avoid res judicata’s bar if he can
show that a “fair determination” of the ineffective assistance of counsel claim requires
reference to evidence that was “outside the record” on direct appeal. See id. Because
Ohio law prohibits the addition of new evidence to the trial record on direct appeal, State
v. Ishmail, 377 N.E.2d 500, 502 (Ohio 1978), the state has excepted from res
judicata those matters that may only be reasonably determined by reference to evidence
that would necessarily fall outside the trial record—for instance, whether trial counsel
sufficiently prepared in advance of trial or whether the defense had strategic motivations
for its decisions. See State v. Smith, 477 N.E.2d 1128, 1131 n.1 (Ohio 1985). Although
the outside-the-record exception provides a narrow escape from procedural default, the
state’s res judicata doctrine presents an Ohio defendant with somewhat of a procedural
quandary—either he must raise his ineffective assistance of counsel claim immediately
on direct appeal and risk a potentially premature dispositive denial, or he must forego
his claim on direct appeal and simply hope that he can thereafter develop sufficient
outside-the-record evidence to overcome res judicata on collateral review.

Applying Ohio’s procedures here, Petitioner clearly failed to raise a voir dire-
based ineffectiveness claim on direct appeal, and his claim was therefore procedurally
defaulted on collateral review. The only way for Petitioner to have obtained collateral
review on the merits of his Strickland claim was to present the post-conviction courts
with sufficient outside-the-record evidence to surmount res judicata.

As the Ohio Court of Appeals recognized, Petitioner’s main piece of outside-the-
record evidence was an affidavit submitted by an expert in capital defense, David L.
Doughten.9 Hanna III, 2002 WL 4529, at *5. The Doughten affidavit provided detailed

8
The other exception provides that if the same counsel who represented the defendant at trial also
represents the defendant on direct appeal, res judicata does not apply. State v. Lambrecht, 568 N.E.2d
743, 745 (Ohio Ct. App. 1989) (explaining that counsel cannot be expected to argue his own
ineffectiveness). Petitioner was represented by different counsel on trial than on direct appeal, so the first
res judicata exception does not apply.
9
Petitioner contends that the Ohio Supreme Court inaccurately identified the outside-the-record
evidence he offered in support of this claim. Petitioner reiterates that this claim was actually supported by
three pieces of evidence: (1) the felon juror’s written questionnaire, which was not included in the direct
appeal record; (2) an affidavit by one of Petitioner’s trial counsel, Kelly Culshaw; and (3) the Doughten
affidavit. Culshaw’s affidavit, however, is limited to affirming that the questionnaire (and in fact, all the
No. 09-3360 Hanna v. Ishee Page 22

opinions as to errors allegedly committed by trial counsel and opined that those errors
constituted ineffective assistance. One error discussed in some detail was trial counsel’s
allegedly deficient performance during voir dire.

As the post-conviction decision makes clear, Ohio’s case law conflicts as to
whether an expert attorney affidavit actually constitutes outside-the-record evidence.
Id. at *5. In finding that the affidavit did not overcome Petitioner’s procedural default,
the Ohio Supreme Court reasoned that “[t]he voir dire conducted by appellant’s counsel
[was] part of the record,” and thus, the arguments and conclusions drawn therefrom by
the expert at least could have been raised on direct appeal. Id. at *6.

Applying this standard, we can find no error in the Ohio Court of Appeals’
analysis. The import of the Doughten affidavit was only to bolster legal arguments that
were based on evidence that apparently could have been discovered and argued on direct
appeal with due diligence. Petitioner’s failure to raise this ineffective assistance of
counsel claim on direct appeal therefore renders it procedurally defaulted under state law
and ineligible for federal habeas relief.

2. Application

Despite the procedural bar, we note that the Ohio Court of Appeals also
impliedly considered this claim on its merits. In judging trial counsel’s performance, the
court obliquely referenced the Doughten affidavit and found that it “failed to
demonstrate that [Petitioner’s] trial counsel breached any essential duty . . . or presented
sufficient operative facts to require an evidentiary hearing.” Id. The court also
suggested that Petitioner could not meet Strickland’s prejudice prong because “the
evidence outside the record is only marginally significant and does not advance the
petitioner’s claim beyond a mere hypothesis and a desire for further discovery.” Id.

questionnaires of the sitting jurors), were excluded from the direct appeal record. Her affidavit does not
provide any satisfactory explanation as to why the attorneys handling Petitioner’s direct appeal failed to
obtain the questionnaires. When asked by this Court at oral argument, Petitioner’s federal habeas counsel
also could not answer this question. Nevertheless, even if the questionnaires and Culshaw affidavit should
have been noted as separate pieces of outside-the-record evidence, the Doughten affidavit adequately
recounted the contents of the other two documents. By reviewing the Doughten affidavit, the Ohio
Supreme Court effectively considered all three pieces of evidence and found that none of it was sufficient
to surmount res judicata.
No. 09-3360 Hanna v. Ishee Page 23

Applying § 2254(d) review, we agree that this analysis was not contrary to or an
unreasonable application of clearly established federal law.

a. Performance

The Sixth and Fourteenth Amendments guarantee a criminal defendant’s right
to a fair and impartial jury. See Morgan v. Illinois, 504 U.S. 719, 729 (1992). “In
essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel
of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961) (internal
citation omitted). The presence of even a single biased juror deprives a defendant of his
right to an impartial jury. Williams v. Bagley, 380 F.3d 932, 944 (6th Cir. 2004) (citing
Morgan, 504 U.S. at 729). Should counsel perform so deficiently during the jury
selection process so as to deny the defendant his Sixth Amendment right to an impartial
jury, the defendant may be entitled to relief on the basis of ineffective assistance of
counsel. See Holder v. Palmer, 588 F.3d 328, 338 (6th Cir. 2009).

As a starting point, the Sixth Amendment “does not require an absolute bar on
felon-jurors,” because a juror’s felon status is not necessarily indicative of a bias against
the defendant (or, for that matter, against the prosecution). United States v. Boney,
977 F.2d 624, 633 (D.C. Cir. 1992). Accordingly, it is inappropriate to invalidate, as a
matter of law, any conviction simply because it was reached by a jury that mistakenly
included a convicted felon. Id. Thus, the appropriate framework to review a felon-juror
claim is to inquire whether the juror was partial and, in the context of this Strickland
claim, whether trial counsel’s failure to discover that partiality deprived Petitioner of his
Sixth Amendment right. Id.; see also Holder, 588 F.3d at 338–339.

When confronting an allegation of juror bias, we must first look to whether the
juror swore under oath “that he could set aside any opinion he might hold and decide the
case on the evidence,” and whether that “protestation of impartiality” ought to be
believed. Patton v. Yount, 467 U.S. 1025, 1036 (1984). A state court’s finding of
impartiality is a factual determination entitled to 28 U.S.C. § 2254(e)’s presumption of
correctness, Dennis v. Mitchell, 354 F.3d 511, 520 (6th Cir. 2003), and may “be
No. 09-3360 Hanna v. Ishee Page 24

overturned only for ‘manifest error.’” Hill v. Brigano, 199 F.3d 833, 843 (6th Cir. 1999)
(quoting Patton, 467 U.S. at 1031).

“If a juror is found to have deliberately concealed material information, bias may
be inferred. If, however, information is not concealed deliberately, the movant must
show actual bias.” Williams, 380 F.3d at 946 (emphasis in original) (quoting Zerka v.
Green, 49 F.3d 1181, 1186 (6th Cir. 1995)). To show actual bias, the defendant “must
first demonstrate that a juror failed to answer honestly a material question on voir dire,
and then further show that a correct response would have provided a valid basis for a
challenge for cause.” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556
(1984). “The motives for concealing information . . . may vary, but only those reasons
that affect a juror’s impartiality can truly be said to affect the fairness of a trial.” Id.

Bias may not be inferred in the instant case because the record does not show that
the juror in question deliberately concealed his felon status. In fact, the juror indicated
several times in his questionnaire that he had experience with prison and probation
services and that he had been incarcerated in the past. Although the juror did not
volunteer his felon status on voir dire, he was never directly asked about it by either the
government or defense counsel. The juror’s written responses were somewhat cryptic
and confusing, but they do not indicate deliberate evasiveness. Rather, the state and
Petitioner appear to agree that the juror likely struggled to understand the questions
asked of him. Even so, Petitioner maintains that the responses were sufficiently
suspicious and should have triggered further investigation by Petitioner’s trial counsel.

b. Prejudice

Even if this Court were to assume deficient performance, Petitioner cannot show
(especially on the record that was before the state courts) that the juror harbored any
actual bias. At voir dire, the juror testified that he would follow the court’s instructions;
that he would not assume guilt or innocence; that he could return a sentence less than
death if the mitigating factors outweighed the aggravating circumstances; that he
believed laws apply equally to inmates as they would to a “person on the street”; and that
inmates were “human beings, just like everybody else.” Additionally, the juror stated
No. 09-3360 Hanna v. Ishee Page 25

that he would not let his knowledge of probation or parole departments impact his ability
to be fair and impartial.10 Given these responses, Petitioner cannot show prejudice and
the state court’s decision to deny relief was not contrary to, or an unreasonable
application of, clearly established federal law.

C. Failure to Present an Adequate Case in Mitigation

Petitioner’s argument that his counsel was ineffective for failing to present an
adequate case in mitigation also fails. At the penalty phase, defense counsel focused on
evidence showing that Petitioner suffered a troubled childhood. Petitioner now contends
that this mitigation defense was constitutionally deficient because it focused on matters
that occurred years before Petitioner’s long incarceration and had no relevance to the
person Petitioner became while in prison. Instead, Petitioner contends that his defense
counsel should have introduced the additional proposed testimony of a psychologist and
an expert in prison culture. He asserts that these experts could have testified that the
stresses of lifelong incarceration, compounded with his organic neurological defects and
troubled childhood, directly contributed to the attack.

1. Application

On direct appeal, Petitioner argued that his counsel was ineffective for failing to
engage an expert to testify on conditions of confinement. The court rejected the
argument and held that testimony about prison conditions “was of questionable
relevance,” “did not relate to [Hanna], his background, or the nature and circumstances
of the crime,” and therefore, was “not mitigating.” Hanna I, 767 N.E.2d at 702. On
collateral review, Hanna raised a similar, but somewhat different claim, alleging that his

10
In addition, the district court allowed Petitioner to depose the juror in order to develop his
federal habeas petition. Although Pinholster precludes us from granting relief based on this new evidence,
we have reviewed the deposition and are convinced that it does not warrant further consideration by the
state courts. Although the juror made several statements regarding traumatic experiences he had while
incarcerated, he also affirmed that he did not allow these experiences to bear on his service at Petitioner’s
trial. Likewise, the juror testified that he did not inform his fellow jurors of his status as a convicted felon,
and he did not share his prison experiences with them. The juror further affirmed that he would not have
answered the questions posed to him on voir dire any differently had further inquiry been made into his
felon status or his impartiality. Given the overall tenor of these responses, we find that Petitioner would
not likely make out a showing of prejudice, even considering the new evidence submitted in support of this
claim.
No. 09-3360 Hanna v. Ishee Page 26

counsel was ineffective for failing to engage the services of a prison culture expert to
testify about how prison life affected him and to help the jury better understand the
background of the incident. The post-conviction court summarily rejected this claim as
brought “with the benefit of hindsight” and “lack[ing] operative facts” to find a
Strickland violation. Hanna II, 2001 WL 3604367, slip op. at 11–12. The post-
conviction appellate court glossed over this claim, agreeing that the items submitted in
support, which included affidavits of proposed testimony from a prison expert and prison
personnel,“alleged no operative facts to indicate that [the proposed testimony] would
result in different findings by the jury . . . [or] that trial counsels’ presentation violated
the standards of Strickland [].” See Hanna III, 2002 WL 4529, at *3. The district court
agreed that Petitioner could not prove deficient performance. Hanna IV, 2009 WL
485487, at *27–31. We agree that Petitioner is not entitled to relief under § 2254(d).

a. Performance

Counsel’s failure to make a reasonable investigation into the defendant’s
psychiatric history and family background, and to present sufficient mitigating evidence
to the jury at sentencing, can constitute ineffective assistance of counsel. Wiggins v.
Smith, 539 U.S. 510, 522–23 (2003); Williams v. Taylor, 529 U.S. 362, 363 (2000). In
assessing whether counsel’s efforts were deficient for failing to introduce certain
evidence in mitigation, the focus must remain on whether counsel’s investigation into
various avenues of mitigating evidence was itself reasonable. Wiggins, 539 U.S. at 523.
In assessing the reasonableness of the investigation, we take into account the quantum
of evidence known to counsel, as well as whether the known evidence should have
prompted a reasonable attorney to investigate further. Id. at 527. Further investigation
is not required when counsel reasonably believes that such investigation would be
“fruitless or even harmful.” Strickland, 466 U.S. at 691.

Petitioner cannot claim that trial counsel utterly failed to investigate his case for
mitigation. Rather, his argument is limited to a complaint that counsel should have
pursued a different mitigation strategy. His argument cannot support a successful
Strickland claim. The record shows that Petitioner received funds for an investigator,
No. 09-3360 Hanna v. Ishee Page 27

a mitigation specialist, and a psychologist, who all were hired to assist in counsel’s
efforts to present a case in mitigation. Dr. Kathleen Burch, Psy.D., a clinical
psychologist, interviewed Petitioner prior to trial and provided the primary testimony on
Petitioner’s behalf during the penalty phase. Additionally, counsel sought and received
an order to obtain any and all of Petitioner’s medical, hospital, psychological,
institutional, school, and employment records. This investigation included records from
as far back as Petitioner’s early childhood to as recent as his prison records at LCI. Dr.
Burch’s testimony referenced the records throughout her testimony, demonstrating that
the effects of Petitioner’s long-term incarceration were considered as part of her
psychological assessment and more broadly as part of defense counsel’s efforts to
develop Petitioner’s overall case for mitigation. Given the above, Petitioner cannot
show that his counsel utterly failed to consider a prison-life mitigation theory.

b. Prejudice

Moreover, Strickland’s prejudice prong cannot be met where the omitted
testimony would be cumulative to other evidence already on the record. See, e.g., Broom
v. Mitchell, 441 F.3d 392, 410 (6th Cir. 2006); Clark v. Mitchell, 425 F.3d 270, 286
(6th Cir. 2005). To this effect, Petitioner cannot show deficient performance because
the jury was encouraged to consider the stresses of prison culture and the impact
of its dangerous environment on Petitioner’s behavior. In discussing Petitioner’s
psychological defects and troubled background, Dr. Burch testified specifically that
Petitioner’s organic brain defects (1) impaired his impulse control; (2) caused him to
perceive false threats and to overreact to minor threats; (3) negatively affected his
concentration; and (4) hindered his long-term decisionmaking—all issues directly
relevant to Petitioner’s proposed prison life arguments. Dr. Burch testified that
Petitioner was “not a person that has been out in the world” and that “he has never really
lived independently.” Although she admitted that her assessments were primarily based
on records from Petitioner’s childhood and juvenile incarcerations, her testimony also
made clear that she had reviewed Petitioner’s more recent prison records. For example,
Dr. Burch referenced several specific conduct violations and notes that related to
No. 09-3360 Hanna v. Ishee Page 28

Petitioner’s incarceration at LCI. Additionally, the overall tenor of Dr. Burch’s
testimony emphasized that Petitioner’s psychological defects and childhood background
had negative effects that could be expected to carry forward to his conduct as an adult.

In addition to Dr. Burch’s expert testimony, trial counsel emphasized the stresses
of prison life in closing arguments at both the guilt and penalty phases of trial. Counsel
pointed out that Petitioner had been incarcerated for approximately twenty years before
the attack and urged the jury to view the cellmates’ tense relationship through the lens
of prison culture. Although Petitioner argues that expert testimony would have offered
a unique perspective on these issues, the impact of additional testimony is simply too
speculative to prove prejudice under Strickland’s and AEDPA’s combined doubly high
standard for relief.

Finally, and as the district court correctly noted, the testimony of a prison expert
was, at best, a “double-edge[d]” sword. See Hanna IV, 2009 WL 485487, at *27–31
(citing Wiggins, 539 U.S. at 535). Much of the omitted evidence about prison culture
risked highlighting Petitioner’s problems in handling situations not strictly-controlled
by prison authorities. Such testimony also risked introducing Petitioner’s history of
disciplinary infractions, which included a prior attempted stabbing of a fellow inmate.
Id. at *29–30. This background would have undermined a pillar of Petitioner’s case in
mitigation—that the death penalty was not warranted because lifelong imprisonment in
solitary confinement could adequately secure the future safety of prison guards and other
inmates.

Given the above, Petitioner cannot show deficient performance and his argument
for prejudice is exceedingly speculative. Accordingly, the state court decision denying
Petitioner’s Strickland claim based on ineffective assistance of counsel during the
mitigation phase does not warrant habeas relief.
No. 09-3360 Hanna v. Ishee Page 29

IV. Flawed Jury Instruction

A. Introduction

In Petitioner’s fourth claim for relief, he challenges the instruction provided to
the jury on causation during the penalty phase of his trial. Petitioner argues that the
causation instruction “fatally undermined” his defense, because it diluted the mens rea
component of Ohio’s aggravated murder statute in contravention of his right to due
process.

Petitioner raised this claim on direct appeal and in his post-conviction
proceedings. On direct appeal, the Ohio Supreme Court denied the claim on the merits.
While recognizing that “the use of a foreseeability instruction in [an] aggravated murder
case” was “questionable” under state law, the Ohio Supreme Court reasoned that the
instructions as a whole made it clear that the jury had to find purpose to kill in order to
convict. Hanna I, 767 N.E.2d at 693. The post-conviction courts also rejected this
claim, finding that the causation instruction was not in error given that the trial court
properly recited Ohio’s definition of reasonable doubt. Hanna II, 2001 WL 3604367,
slip op. at 10; Hanna III, 2002 WL 4529, at *8.

Petitioner renewed this claim in his federal habeas petition. The district court
looked to the state court’s decision on direct appeal and agreed with its analysis. Hanna
IV, 2009 WL 485487, at *44–46. The district court concluded that because the trial
court properly instructed the jury with respect to specific intent, it did not impermissibly
lower the prosecution’s burden of proof by also including the instruction on
foreseeability. Id. at *46. The state urges us to affirm this ruling, arguing that because
the Supreme Court has never invalidated this type of jury instruction on due process
grounds, the state courts’ rulings cannot be contrary to or an unreasonable application
of clearly established federal law. We agree.
No. 09-3360 Hanna v. Ishee Page 30

B. Legal Framework

The Due Process Clause of the Fourteenth Amendment “protects the accused
against conviction except upon proof beyond a reasonable doubt of every fact necessary
to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364
(1970). “Supreme Court precedent clearly establishes that, ‘[i]n a criminal trial, the
State must prove every element of the offense, and a jury instruction violates due process
if it fails to give effect to that requirement.’” Joseph v. Coyle, 469 F.3d 441, 464 (6th
Cir. 2006) (quoting Middleton v. McNeil, 541 U.S. 433, 437 (2004)). A jury instruction
that shifts or relieves the state of its burden of proof also violates due process.
Sandstrom v. Montana, 442 U.S. 510, 520–24 (1979).

In Estelle v. McGuire, 502 U.S. 62 (1991), the Supreme Court established the
showing required to obtain habeas relief based on an incorrect jury instruction.
Estelle made clear that “the fact that the instruction was allegedly incorrect under state
law is not a basis for habeas relief.” Id. at 71–72 (citing Marshall v. Lonberger, 459
U.S. 422, 438 n.6 (1983)). Rather, we must consider “whether there is a reasonable
likelihood that the jury has applied the challenged instruction in a way that violates the
Constitution.” Id. at 72 (quoting Boyde v. California, 494 U.S. 370, 380 (1990) (internal
quotation marks omitted)). In doing so, it is incumbent upon the defendant to show that
the challenged instruction “by itself so infected the entire trial that the resulting
conviction violates due process.” Id. at 72 (quoting Cupp v. Naughten, 414 U.S. 141,
147 (1973)). A challenge to a jury instruction is not to be viewed in “artificial isolation,”
but rather must be considered within the context of the overall instructions and trial
record as a whole. Id. The category of infractions that can render an entire trial
fundamentally unfair is narrow. Id. at 72–73 (citing Dowling v. United States, 493 U.S.
342, 352 (1990)).

C. Application

Under Ohio’s statute for aggravated murder, the prosecution is charged with
proving that the murder was committed “purposefully, and with prior calculation and
No. 09-3360 Hanna v. Ishee Page 31

design.” Ohio Rev. Code Ann. § 2903.01(A). As part of its instructions, the trial court
provided the jury with an instruction titled “Causation,” which read as follows:

The State charges that the act of the defendant caused the death of Peter
Copas. Cause is an act which in a natural and continuous sequence
directly produces the death of Peter Copas and without which it would
not have occurred.
The defendant’s responsibility is not limited to the immediate or most
obvious result of the defendant’s act. The defendant is also responsible
for the natural and foreseeable results that follow, in the ordinary course
of events from the act.

See Hanna IV, 2009 WL 485487, at *45.11

Reviewing the challenged language in context with the jury instructions as a
whole, the causation instruction stands in isolation when compared to the multiple points
where the trial court properly instructed the jury on specific intent. As the district court
noted, the trial court repeatedly advised the jurors that they could not convict Petitioner
of aggravated murder unless they found that the state met its burden to prove Petitioner’s
specific intent to kill beyond a reasonable doubt:

(1) [the jury] was required to find beyond a reasonable doubt that Mr.
Hanna “purposely caused the death of Peter Copas with prior calculation
and design”; (2) a person acts purposely when it is his specific intent to
cause a certain result; (3) purpose is a decision of the mind to do an act
with a conscious objective of purposely producing a specific result; (4) to
do an act purposely is to do it intentionally and not accidentally; (5) no
person may be convicted of aggravated murder unless he specifically
intended to cause the death of another; and (6) prior calculation and
design means that the purpose to cause the death was reached by a
definite process of reasoning in advance of the homicide.

Id. at *46 (emphasis in original).

Bearing these repeated instructions in mind, we agree that the isolated causation
instruction did not lower the prosecution’s burden to prove intent. The instructions, read
in their totality, clearly place the burden of proof on the state. Moreover, defense

11
The language was apparently derived from Ohio’s civil instruction on causation.
No. 09-3360 Hanna v. Ishee Page 32

counsel’s admonitions also drew a clear line between the issues of causation and intent,
buttressing the distinction reflected in the jury instructions. Specifically, defense
counsel conceded that Petitioner’s actions caused Copas’ death, but repeatedly
underscored Petitioner’s lack of intent to kill and advised the jurors, both in opening and
closing arguments, that their verdict would turn almost entirely on this narrow issue.12

Petitioner cites to Francis v. Franklin, 471 U.S. 307, 310 (1985), for the
proposition that an improper instruction may warrant habeas relief where the
“dispositive issue” in the case is the defendant’s intent to kill. However, this case is
clearly distinguishable from Francis on both the law and the facts. In Francis, the
Supreme Court granted habeas relief to a defendant whose victim was killed when he
shot a bullet through a closed door. At trial, the defendant argued that the shot went off
accidentally and that he lacked the requisite intent to kill. In granting relief, the Supreme
Court focused on the instructions given to the jury on intent, not causation. The intent
instruction in Francis specifically called upon the jury to presume that the defendant
intended the natural and probable consequences of his acts. Id. at 309. Moreover, the
overall instructions did not cure this error because they charged the defendant with
rebutting the inference that he intended the foreseeable consequences of his actions. Id.
at 315.

If anything, Francis underscores our conclusion that the state courts properly
analyzed Supreme Court precedent in this case. The challenged instruction here is
clearly distinguishable from the one in Francis because Petitioner’s jury was only told
that it could infer causation from the defendant’s actions; the jury was not instructed to
infer anything about Petitioner’s intent from this conduct. Moreover, the error in
describing causation, to the extent there was any, was attenuated from the essential

12
Defense counsel’s decision not to pursue an intervening cause defense was presumably
strategic, given the difficulty of succeeding with such a theory under Ohio law, which provides that “[o]ne
who inflicts injury upon another is criminally responsible for that person’s death, regardless of whether
different or more skillful medical treatment may have saved his life. That rule has been qualified [only]
where there has been a gross or willful maltreatment of the patient by the medical personnel, which is
shown to have been an independent intervening cause of the patient’s death.” State v. Johnson, 381 N.E.2d
637, 640 (Ohio 1978); see also State v. Dukes, No. 2010-P-0027, 2011 WL 6938589, at *5–6 (Ohio Ct.
App. Dec. 30, 2011).
No. 09-3360 Hanna v. Ishee Page 33

element in dispute at trial. Finally, and in contrast to Francis, the overall instructions
provided at Petitioner’s trial were curative because they properly charged the jury as to
specific intent, whereas the broader instructions in Francis only underscored the
constitutional error. Id. at 315. Accordingly, Francis is not helpful to Petitioner’s claim
for relief.

Because the instructions, read overall, properly instructed the jury as to specific
intent, we cannot conclude that they were so infirm as to warrant habeas relief.
Although Petitioner’s intent was of critical importance to his defense, this fact alone
does not alter our analysis. The state courts’ rulings were therefore not unreasonable
applications of clearly established federal law. See also Campbell v. Coyle, 260 F.3d
531, 557 (6th Cir. 2001) (relying on Sandstrom to deny habeas relief where the
defendants challenged causation instructions, but the jurors were properly instructed on
specific intent); Byrd v. Collins, 209 F.3d 486, 527 (6th Cir. 2000).

CONCLUSION

For the reasons stated above, we AFFIRM the district court’s judgment
DENYING the petition for a writ of habeas corpus.