dissenting.
The majority holds that the “Ohio courts did not follow Ohio death penalty statutes created to comply with Supreme Court cases narrowing the class of offenders eligible for the death penalty under the Eighth Amendment,” Maj. Op. at 416, and that this failing cannot be overcome by employing “harmless error.” Maj. Op. at 421-422. I agree that the state failed to properly indict Esparza for the offense of capital murder and failed to instruct the jury to find all elements of the offense of capital murder. However, I do not agree with the majority that this error cannot be subject to a “harmless error” analysis.
Although the majority basically sidelines it, see Maj. Op. at 423, this case is governed by the Antiterrrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (codified as amended at 28 U.S.C. § 2254 (Supp.2002) (“AEDPA”)), which provides in relevant part:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
28 U.S.C. § 2254(d)(1).
In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court explained the meaning of “contrary to” and “unreasonable application” in the statute. A state court’s legal decision is “contrary to” clearly established federal law under § 2254(d)(1) “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Id. at 412-13, 120 S.Ct. 1495. An “unreasonable application” occurs when “the state court identifies the correct legal principle from [the Supreme] Court’s decisions but unreasonably apphes that principle to the facts of the prisoner’s case.” Id. Under this standard, a state court decision is not unreasonable simply because the federal court concludes that the state court’s decision is erroneous or incorrect. Id. at 411, 120 S.Ct. 1495. Rather, the federal court must determine that the state court’s decision is an objectively unreasonable application of federal law. Id. at 410-12, 120 S.Ct. 1495.
The Williams Court emphasized that “clearly established Federal law, as determined by the Supreme Court” refers to “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Id. at 412, 120 S.Ct. 1495.
*426Under the AEDPA, we are therefore reviewing the relevant state court decision. Esparza did not raise an Eighth Amendment claim on direct appeal in the state courts. He did not raise the issue until state post-conviction proceedings, and then he raised it as part of his Sixth Amendment ineffective assistance of appellate counsel claim. As the Ohio Court of Appeals stated:
Appellant has now filed the present motion for delayed reconsideration in which he asserts that his original appellate counsel was ineffective for failing to raise the following assignments of error in the original appeal of his conviction and sentence to this court:
ASSIGNMENT OF ERROR NO. 1 APPELLANT ESPARZA’S DEATH SENTENCE IS VOID AND VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
State v. Esparza, No. L 84-225, 1994 WL 395114, at *3 (Ohio Ct.App. July 27, 1994) (unpublished per curiam), cause dismissed, 70 Ohio St.3d 1473, 640 N.E.2d 845 (1994). The Ohio Court of Appeals evaluated the assignment of error under the Strickland standard.1 See id. at *2 (setting forth Strickland test for ineffective assistance of counsel claims). As to this issue, the Ohio Court of Appeals concluded:
Under his first assignment of error, Esparza contends that his death sentence is void in that the state failed to allege and the jury failed to find all of the elements of a capital specification. In particular, appellant asserts that the indictment failed to allege a death penalty specification because it did not allege that he was either the principal offender or that he committed the aggravated murder with prior calculation and design. Appellant further asserts that the jury instructions at the guilty phase of his trial below were similarly defective.
On his original appeals before this court and the Supreme Court of Ohio, appellant asserted that his conviction was against the manifest weight of the evidence. Upon review, both this court and the Supreme Court determined that the verdict was not against the manifest weight of the evidence. In so finding, both courts necessarily determined that after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crimes proven beyond a reasonable doubt. See State v. Jenks, (1991), 61 Ohio St.3d 259, 574 N.E.2d 492. Additionally, this court, in its decision of May 29,1992, reviewing appellant’s post-conviction appeal, addressed the merits of this assignment of error and found it not well-taken. As such, we find that there are no substantive grounds for relief under this assignment of error.
Id. at *5. In other words, it appears that the Ohio court concluded that there was no prejudice under Strickland. That is, appellate counsel’s failure to raise the Eighth Amendment claim did not result in prejudice because of the overwhelming evidence against Esparza.2
As the district court suggested, it appears that the state court engaged in a harmless error analysis.3 Our task under *427the AEDPA then is to determine whether application of harmless error analysis to an Eighth Amendment violation was an unreasonable application of, or contrary to, Supreme Court precedent, as of the time of the relevant state court decisions.
Since the landmark case of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), in which the Supreme Court held that some federal constitutional errors can be deemed harmless, the Supreme Court has found only a few constitutional errors that are so fundamental as to be automatically reversible and not subject to the harmless error analysis. Arizona v. Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); see also Neder v. United States, 527 U.S. 1, 7, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (stating that “we have recognized a limited class of fundamental constitutional errors that ‘defy analysis by “harmless error” standards’ ” (quoting Fulminante, 499 U.S. at 279, 111 S.Ct. 1246)). Such “structural” errors include the giving of an erroneous reasonable doubt instruction, see Sullivan v. Louisiana, 508 U.S. 275, 281-82, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), the appointment of an interested party’s attorney as a prosecutor for contempt charges, Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 809-14, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987), the excusing of a juror for cause in a capital case who was not irrevocably committed to vote against the death penalty regardless of the facts and circumstances of the case, Gray v. Mississippi, 481 U.S. 648, 668, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987), the unlawful exclusion of members of the defendant’s race from a grand jury, Vasquez v. Hillery, 474 U.S. 254, 263-64, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986), the denial of the right to a public trial, Waller v. Georgia, 467 U.S. 39, 48-50 & n. 9, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), the abridgment of right to self-representation, McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); the complete denial of right to counsel at trial, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); and trial before a biased judge, Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927).
In each of these cases, the error affected the framework of the trial so that it was impossible to determine whether the result was correct. That is, “[e]ach of these constitutional deprivations is a similar structural defect affecting the framework within *428which the trial proceeds, rather than simply an error in the trial process itself.” Fulminante, 499 U.S. at 310, 111 S.Ct. 1246. “Put another way, these errors deprive defendants of ‘basic protections-’ without which ‘a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence ... and no criminal punishment may be regarded as fundamentally fair.’ ” Neder, 527 U.S. at 8-9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (quoting Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)) (alteration in original).
The Supreme Court- has ruled that constitutional errors subject to harmless error review include:
Clemons v. Mississippi, 494 U.S. 738, 752-754, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) (unconstitutionally overbroad jury instructions at the sentencing stage of a capital case); Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988) (admission of evidence at the sentencing stage of capital case in violation of the Sixth Amendment Counsel Clause); Carella v. California, 491 U.S. 263, 266, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989)[ Qjury instruction containing an erroneous conclusive presumption); Pope v. Illinois, 481 U.S. 497, 501-504, 107 S.Ct. 1918, 95 L,Ed.2d 439 (1987) (jury instruction misstating an element of the offense); Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (jury instruction containing an erroneous rebuttable presumption); Crane v. Kentucky, 476 U.S. 683, 691, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (erroneous exclusion of defendant’s testimony regarding the circumstances of his confession); Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (restriction on a defendant’s right to cross-examine a witness for bias in violation of the Sixth Amendment Confrontation Clause); Rushen v. Spain, 464 U.S. 114, 117-118, and n. 2, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (denial of defendant’s right to be present at trial); United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983) (improper comment on defendant’s silence at trial, in violation of the Fifth Amendment Self Incrimination Clause); Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982) (statute improperly forbidding trial court’s giving a jury instruction on a lesser included offense in a capital case in violation of the Due Process Clause); Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979) (failure to instruct the jury on the presumption of innocence); Moore v. Illinois, 434 U.S. 220, 232, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977) (admission of identification evidence in violation of the Sixth Amendment Counsel Clause); Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972) (confession obtained in violation of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964)); Chambers v. Maroney, 399 U.S. 42, 52-53, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) (admission of evidence- obtained in violation of the Fourth Amendment); Coleman v. Alabama, 399 U.S. 1, 10-11, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) (denial of counsel at preliminary hearing in violation of the Sixth Amendment Confrontation Clause).
Fulminante, 499 U.S. at 306-07, 111 S.Ct. 1246 (some citations omitted). In Fulminante, the Supreme Court explained that:
The common thread connecting these cases is that each involved “trial error” — error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether *429its admission was harmless beyond a reasonable doubt.
Id. at 307-08, 111 S.Ct. 1246. The harmless error rule thus “promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.” Satterwhite v. Texas, 486 U.S. 249, 256, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988) (quoting Rose v. Clark, 478 U.S. at 577, 106 S.Ct. 3101).
Although the Supreme Court has repeatedly indicated that “death is different,” see Woodson v. North Carolina, 428 U.S. 280, 295, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (“[D]eath is qualitatively different from a sentence of imprisonment, however, long. Death, in its finality, differs more from life imprisonment than a 100 year prison term differs from one of only a year or two.”); see also David McCord, Is Death “Different” for Purposes of Harmless Error Analysis? Should It Be?: An Assessment of United States and Louisiana Supreme Court Case Law, 59 La.L.Rev. 1105, 1165 n. 2 (1999), the Court has never held that every constitutional error in a death penalty case is “structural.” Id. at 1121. In fact, the Supreme Court has employed the “structural defect” vs. “trial error” dichotomy in capital cases. See, e.g., Sullivan, 508 U.S. at 281-82, 113 S.Ct. 2078; Fulminante, 499 U.S. at 284, 111 S.Ct. 1246 (holding that admission of the defendant’s coerced confession in a capital case was subject to harmless error analysis and was not harmless error); Satterwhite, 486 U.S. at 256-58, 108 S.Ct. 1792 (approving harmless error analysis of admission in capital sentencing proceeding of psychiatric testimony obtained in violation of the Sixth Amendment); Clemons, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (holding that the Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an invalid aggravating circumstance either by reweighing the evidence or by harmless error review; remanding for clarification from Mississippi Supreme Court).
The majority proclaims that “[n]one of the seminal Supreme Court Eighth Amendment cases requiring the narrowing of the class of defendants eligible for the death penalty permits the offender to be executed because the error was deemed harmless.” Maj. Op. at 421 (citing Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (per curiam); Woodson v. North Carolina, 428 U.S. 280, 302, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Godfrey v. Georgia, 446 U.S. 420, 429, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980)). In none of those cases, however, did the Supreme Court explicitly analyze the appropriateness of the harmless error test in Eighth Amendment cases. Thus, it is disingenuous for the majority to hold that because the death penalty for all such offenders was set aside in those cases and not reviewed for harmless error, the Supreme Court has affirmatively ruled that the errors in those cases were indeed structural and not subject to harmless error review. Cf. Ring v. Arizona, — U.S. -, 122 S.Ct. 2428, 2443 n. 7, 153 L.Ed.2d 556 (2002) (holding that statute allowing trial judge to determine presence or absence of aggravating factors required under state law for imposition of death penalty violated Sixth Amendment right to a jury trial in capital prosecutions; and stating that the Court did “not reach the State’s assertion that any error was harmless” because the Court ordinarily leaves it to lower courts to pass on the harmlessness of the error in the first instance).
In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (per curiam), the Supreme Court held that the penalty of death may not be imposed un*430der a sentencing scheme that creates a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner. Furman made clear that a state may impose the death penalty only if its laws are shaped to narrow the class of offenders eligible for the death penalty. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), reaffirmed the holding of Furman, stating that “where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Id. at 189, 96 S.Ct. 2909. In other words, a capital sentencing scheme must provide a “meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not.” Id. at 188, 96 S.Ct. 2909 (quoting Furman, 408 U.S. at 313, 92 S.Ct. 2726). See also Godfrey v. Georgia, 446 U.S. 420, 427-28, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (same) (plurality opinion); Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (ruling that jury’s limited function of finding statutory aggravating circumstance does not render Georgia’s statutory scheme invalid under Furman).
The issue in Woodson was “whether a death sentence returned pursuant to a law imposing a mandatory death penalty for a broad category of homicidal offenses constitutes cruel and. unusual punishment within the meaning of the Eighth and Fourteenth Amendments.” 428 U.S. at 287, 96 S.Ct. 2978 (footnotes omitted). The Woodson Court explained that “[t]he issue, like that explored in Furman, involves the procedure employed by the State to select persons for the unique and irreversible penalty of death.” Id. The Woodson Court held that “in capital eases the fundamental respect for humanity underlying the Eighth Amendment, requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Id. at 304, 96 S.Ct. 2978 (citations omitted). The Court therefore concluded that the death sentences imposed upon the petitioners under North Carolina’s mandatory death sentence violated the Eighth and Fourteenth Amendments and had to be set aside. Id. at 305, 96 S.Ct. 2978.
In these cases, the Supreme Court made clear that the Eighth Amendment imposes an underlying requirement on states to individualize capital sentencing proceedings to eliminate the arbitrary imposition of the ’death penalty. In Clemons, the Supreme Court described the thrust of the Eighth Amendment in this context:
The primary concern in the Eighth Amendment context has been that the sentencing decision be based on the facts and circumstances of the defendant, his background, and his crime. See, e.g., Spaziano v. Florida, [468 U.S. 447, 460, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984) ]; Zant v. Stephens, [462 U.S. 862, 879, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) ]; Eddings v. Oklahoma, 455 U.S. 104, 110-112, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 601-605, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion); Gregg v. Georgia, 428 U.S. 153, 197, 96 S.Ct. 2909, 49 L.Ed.2d 859(1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). In scrutinizing death penalty procedures under the Eighth Amendment,, the Court has emphasized the “twin objectives” of “measured consistent application and fairness to the accused.” Eddings, supra, at 110-111 [102 S.Ct. 869].’
Clemons, 494 U.S. at 748, 110 S.Ct. 1441 (some citations omitted).
*431Ohio has such a capital sentencing scheme, which this Court has found constitutional. See, e.g., Scott v. Mitchell, 209 F.3d 854, 885 (6th Cir.), cert. denied, 531 U.S. 1021, 121 S.Ct. 588, 148 L.Ed.2d 503 (2000). But the issue in this case is not, as the majority’s resort to Eighth Amendment jurisprudence might suggest, whether Esparza was sentenced under capital sentencing procedures that violate the Eighth Amendment under Furman and its progeny. Furthermore, this line of cases does not discuss the harmless error doctrine, and the majority supplies no authority which allows it to infer from the Court’s silence that the doctrine is not applicable. Thus, in AEDPA terminology, the state court’s ruling is not “contrary to” the Supreme Court precedent upon which the majority relies.
Rather, the issue is whether the State’s failure to follow that scheme by failing to properly indict and instruct the jury on the element of capital murder constituted constitutional error of a structural type or is subject to harmless error analysis. Both myself and the majority struggle with the question of whether this is purely a violation of the Eighth Amendment or a violation of the Sixth Amendment right to trial by jury, or both.4 There is no direct Supreme Court precedent to resolve this question, so we cannot analyze the Ohio Court of Appeals decision upder the “contrary to” clause of the AEDPA.
The question then becomes whether the state court’s ruling is nonetheless an “unreasonable application” of clearly established Federal law. Without a clear answer on the subject, we must extend by analogy other Supreme Court decisions addressing the appropriateness of harmless error analysis. In my view, it is not unreasonable to analogize to Supreme Court precedent holding that omissions and mis-descriptions of elements of an offense are subject to a harmless error analysis. See, e.g., Neder, 527 U.S. at 9-15, 119 S.Ct. 1827 (cases involving Sixth Amendment right to trial by jury; discussing Supreme Court precedent holding that omission of an element of an offense and misdescription of an element are subject to harmless-error review). “Unlike such defects as the complete deprivation of counsel or trial before a biased judge an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Id. at 9, 119 S.Ct. 1827.
The majority draws a different conclusion, analogizing to the ruling in Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). Sullivan held that a defective “reasonable doubt” instruction in violation of the defendant’s Fifth and Sixth Amendment rights is not subject to harmless error analysis because it “vitiates all the jury’s findings,” 508 U.S. at 281, 113 S.Ct. 2078, and results in “consequences that are necessarily unquantifiable and indeterminate.” Id. at 282, 113 S.Ct. 2078. In Neder, the Supreme Court rejected the defendant’s argument that Sullivan precluded the application of harmless error where an erroneous jury instruction omits the element of materiali*432ty because the jury could not render a “complete verdict” on every element of the offense. Neder, 527 U.S. at 11, 119 S.Ct. 1827. The majority distinguishes Neder on the grounds that “materiality” was a minor element in a tax fraud case, and further notes that “[tjhere is no suggestion in the Chief Justice’s opinion in Neder that harmless error would protect a directed verdict for the State on a crucial finding-under the Eighth Amendment in a capital case.” Maj. Op. at 421.5
However, Neder itself was not based on the fact that materiality was a minor element of the offense at issue. What the Neder Court did say is that “[t]he error at issue here-a jury instruction omits an element of the offense-differs markedly from the constitutional violations we have found to defy harmless-error review.” Neder, 527 U.S. at 8, 119 S.Ct. 1827. Noting that “[w]e have often applied harmless-error analysis to cases involving improper instructions on a single element of the offense,” the Court proceeded to discuss its precedent on the subject. Id. at 9, 119 S.Ct. 1827. The Court concluded that while “[i]t would not be illogical to extend the reasoning of Sullivan” to the failure to instruct on an element of the crime, “the matter is not res nova under our case law.” Id. at 15, 119 S.Ct. 1827.
Ultimately, however, it is the disagreement itself over the appropriate analogy-to Neder or Sullivan-that is most relevant here, because under the AEDPA, we are not to fault the state court’s decision unless we find it contrary to or an unreasonable application of Supreme Court precedent. As the foregoing discussion reveals, the state court’s decision is certainly not contrary to, nor in my view, an unreasonable application of, clearly established federal law as determined by the holdings of the Supreme Court.
Furthermore, in this case, I think the error was harmless. Although there was no capital specification in the indictment, as found by the Ohio Court of Appeals, the front page of the indictment states that Esparza was charged with: “AGGRAVATED MURDER-§ 2903.01(B)-with a gun specification; AGGRAVATED ROBBERY-§ 2911.01-also with a gun specification; also a death penalty specification as to the first count[.]” Here, the jury was instructed completely and properly on the elements of aggravated murder, “defined as purposely causing the death of another while committing Aggravated Robbery.” In addition, the jury was instructed that if it found Esparza guilty of Aggravated Murder, “it is then your duty to deliberate further and decide two additional factual questions called Specifications.” As to the second specification, the trial court instructed the jury that the issue for decision was “whether the State has proved beyond a reasonable doubt that the offense of Aggravated Murder was committed while the Defendant was committing Aggravated Robbery.” The State proceeded on the theory that one person committed the murder and robbery. Thus, in order to find Esparza guilty beyond a reasonable doubt, the jury must have found that Esparza “actually killed” Melanie Gershultz. “Principal offender” has been defined'under Ohio law as “the actual killer.” State v. Chinn, 85 Ohio St.3d 548, 709 N.E.2d 1166, 1177 (1999). Thus, although the jury was not explicitly instructed to make a finding under Section 2929.04(A)(7) that Esparza was “the principal offender in the commission of the aggravated murder,” it necessarily had to *433make that finding in order to find Esparza guilty of the aggravated murder of Ger-shultz on the facts before it.
In my view, the failure to properly instruct the jury under Section 2929.04(A)(7) involved a trial error “which occurred during the presentation of the case to the jury,” that could therefore be quantitatively assessed against the other evidence to determine if the error was harmless beyond a reasonable doubt. Fulminante, 499 U.S. at 307-08, 111 S.Ct. 1246. More importantly, I do not think it unreasonable for the Ohio Court of Appeals to have done so because Esparza’s trial still served as a reliable vehicle for the determination that he was guilty of capital murder. By the same token, I do not think the state court’s conclusion that the error was in fact harmless in light of the “manifest weight of the evidence” was an unreasonable application of the harmless error doctrine either.
The majority also states that even if harmless error analysis were appropriate, “we are faced with the problem that suppressed evidence discovered for the first time in the District Court in this proceeding raises a question about whether Esparza acted alone.” Maj. Op. at 422. The record in the district court reflects that the prosecution withheld evidence by two witnesses indicating that there were two participants in the crime, Esparza and Joe Jasso. Based on this evidence the majority concludes that “[t]he basis on which Ohio judges directed a verdict on the ‘principal offender’ aggravator-that there was only one participant in the crime-appears now to be untrue,” and that “the basis for the State’s harmless error argument in the State courts has been undermined by the new evidence.” Maj. Op. at 422. I would agree with the majority that this evidence would compel a finding that the error was not harmless here except that, as the majority notes elsewhere in its opinion in connection with Esparza’s Brady claim, that “[e]ven after this, however, there remains other significant evidence against Esparza, in particular the testimony of two individuals that Esparza admitted to shooting Melanie Gershultz.” Maj. Op. at 424. In short, I do not think that it can be said that the Ohio court’s application of the harmless error doctrine was an unreasonable application of Supreme Court precedent to the facts of this case, even in light of the new evidence.
The majority also cites Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978) (per curiam). There, the defendant was convicted in state court of three capital offenses; rape, kidnaping with bodily injury, and murder with malice aforethought. The Georgia Supreme Court ruled that the first two death sentences were invalid, because both depended upon the petitioner having committed forcible rape, and the court determined that the jury had not properly convicted the petitioner of that offense. The jury had been instructed during the guilt phase both on forcible and statutory rape, but did not specify in its verdict which offense it had found, and there was no jury finding of forcible rape at the penalty phase. The Georgia Supreme Court upheld the third death penalty imposed by the jury, in spite of the lack of a jury finding on forcible rape, on the grounds that evidence in the record supported the conclusion that the petitioner was guilty of that offense, which in turn established the element of bodily harm necessary to make the third capital crime, “kidnapping with bodily harm, aggravated sodomy,” a sufficiently aggravating circumstance to justify the death sentence. Id. at 15-16, 99 S.Ct. 235. The United States Supreme Court reversed, given the absence of a jury finding of forcible rape. However, in that case, the Supreme Court did not consider whether *434the harmless error doctrine might be applicable.
Furthermore, Presnell is distinguishable because here, as I have noted, the jury necessarily found that Esparza was the actual killer, and therefore the principal offender. Thus, unlike Presnell, the jury in this case actually made a finding-albeit implicitly-on an element of the offense necessary to make Esparza’s offense a capital crime. Cf Ring, 122 S.Ct. 2428 (holding that capital defendants, like non-capital defendants, are entitled under the Sixth Amendment to a jury determination on any fact which increases their maximum punishment, invalidating statute that allowed sentencing judge, rather than jury, to find aggravating circumstance necessary for imposition of the death penalty; reserving in a footnote question of whether harmless error test is applicable). I therefore do not find that the Ohio Court of Appeals decision was contrary to, or an unreasonable application of, Presnell.
This is a difficult question, but the AED-PA directs our hand in this case. I would reverse the district court’s partial grant of the writ of habeas corpus.
I also object to the majority’s conclusion that there was no ineffective assistance of counsel based on counsel’s failure to read the indictment since “[i]t may have been counsel’s strategy to leave the error in place.” Maj. Op. at 423. I do not think judges of this Court should countenance strategically placed errors by officers of the court.
I respectfully dissent.
. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
. The Ohio Court of Appeals did not address cause, presumably because it found that prejudice was not shown.
.The district court stated in relevant part:
The state court conceded that there was no capital specification obvious on the face of the indictment, but concluded that this fact did not prohibit Esparza's conviction for capital *427murder. This is so, the stale court reasoned, because it found that the indictment was sufficient, despite the absence of certain precise language, to put Esparza on notice of all of the elements of the offense with which he was charged. Thus, the state court found that the "principal offender” specification was implicit in the indictment because no one other than Esparza was charged with participating in the events described. The court stated:
We conclude that where only one defendant is named in an indictment alleging felony murder, it would be redundant to state .that the defendant is being charged as the principal offender. Only where more than one defendant is named need the indictment specify the allegation 'principal offender.'
State v. Esparza, 1992 WL 113827, at *9 (Ohio App. May 29, 1992).
It appears, accordingly, that without saying so expressly, the state court engaged in a harmless error analysis, finding that the absence of the words "principal offender” in the indictment was not meaningful where, as here, there was only one offender charged in that indictment.
Esparza v. Anderson, No. 96-CV-7434, slip, op. at 70 (E.D.Ohio. Oct. 13, 2000) (footnoted omitted).
The district court failed to quote the last sentence of the foregoing paragraph in which the Ohio Court of Appeals stated that: "We further note that the words death penalty specification as to the first count are clearly typed on the front of the indictment.” Esparza, 1992 WL 113827, at *9.
. The district court shared in this struggle. The lower court’s analysis is an amalgam of the Fifth Amendment right to indictment by grand jury (albeit erroneously because this right does not extend to state prosecutions), the Fourteenth Amendment right to adequate notice (citing In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)), the Sixth Amendment guarantee of trial by jury (citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)), and the Eighth Amendment right to be sentenced under a capital scheme that sufficiently narrows the class of person subject to the death penalty (citing Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983)).
. At the risk of sounding unduly rhetorical, why would there be? Neder was not a capital case. And, as the majority well knows, the Supreme Court, as it is constitutionally required to do, speaks only to the issues properly before it.