concurring in part and dissenting in part.
While I concur in Parts II.D and II.E of the majority’s opinion, pertaining to Petitioner’s affidavit of indigency and the cumulative error claims respectively, I dissent from Parts II.A and II.C. I would instead hold that Petitioner received ineffective assistance of counsel during both the mitigation phase of trial and voir dire and accordingly grant habeas relief from the sentence of death imposed upon Petitioner. Additionally, I concur with the result of Part U.B., rejecting Petitioner’s claim that the trial court erred in dismissing scrupled jurors during voir dire, but *680not its rationale. In contrast to the majority, I see no reason to hold that Gray v. Mississippi 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987), does not apply to cases on collateral review, and would instead simply hold that the trial court did not abuse its discretion in excusing the scrupled jurors. Accordingly, I would vacate Petitioner’s sentence but uphold his conviction.
I.
Ineffective Assistance of Counsel in the Mitigation Phase
Despite a long and well-recognized line of Supreme Court case law requiring counsel in death penalty cases to conduct at least a cursory investigation into mitigation evidence, it is uncontested in this case that defense counsel failed to conduct any investigation. Instead, defense counsel submitted reports containing information that any reasonable attorney would recognize could only prejudice a defendant, including: (1) victim impact information; (2) an extensive list of evidence implicating Petitioner; (3) a record of Petitioner’s pri- or convictions; (4) erroneous positive statements about Petitioner’s family and childhood; and (5) a psychiatrist’s report stating that Petitioner was not mentally impaired and that no mitigating factors existed. It cannot be reasonably argued that submitting such information was a legitimate strategy simply because the report also mentioned that Petitioner was a good football player and considered himself a nice guy. Therefore, I would hold that Petitioner received ineffective assistance of counsel during the mitigation phase of his trial, requiring vacation of his death sentence.
A. Counsel’s Conduct During the Mitigation Phase
The following facts regarding the performance of Petitioner’s counsel during the mitigation phase are not disputed. Mr. Banks, counsel for Petitioner, did not discuss the concept of mitigation with Petitioner. He did not question Petitioner about his life or childhood. He did not interview Petitioner’s family or friends, despite their expressed willingness to speak with him. At the hearing, he presented no opening statement, witnesses or closing statement. He did not argue innocence, residual doubt, or even ask the jury to spare Petitioner’s life. Furthermore, he allowed the submission of two highly prejudicial reports he had requested the court to prepare prior to the hearing.
The first report contained the results of a one hour examination of psychologist Dr. Schonberg. It noted, among other things, that Petitioner did not appear to have any mental illnesses, was of average intelligence, and was not currently depressed, or “down in the dumps.” (Schonberg Rep. at 2.) It also recounted Petitioner’s statements that he was a nice guy, had no anger problems, and did not have a significant substance abuse problem. Further, the report stated that Petitioner’s family had no history of alcoholism, and that Petitioner was never physically or sexually abused. Finally, Dr. Schonberg concluded:
Under the provisions of the Ohio Revised Code, Section 2929.04; Criteria for Imposing Death or Inprisonment [sic] for a Capital Offense, the death penalty will be precluded if the Court found any of three mitigating circumstances. [Petitioner] states that he is innocent of these charges. It would not appear that the offender acted under duress, nor would it appear that the victim of the offense induced or facilitated it. The offense would not appear to have been a product of the offender’s mental defi*681ciency or psychosis, the client having no psychiatric history. Therefore, based on interview impressions, it is this examiner’s opinion that there are no mitigating factors in this case.
(Schonberg Rep. at 3.)
The second report was a pre-sentence report. It contained: (1) three pages recounting the crime and evidence against Petitioner; (2) a page long victim impact statement including information regarding the psychological state and monetary troubles of the surviving victims and their relatives; (3) a one sentence section labeled “Defendant’s version” that included Petitioner’s claim of innocence; (4) a one page history of Petitioner’s prior record; (5) a two page summary of Petitioner’s parole and supervised release history; and (6) a one page social history of Petitioner. The social history stated that Petitioner was an illegitimate child who was raised by his grandparents and had a happy and normal childhood. It also stated that Petitioner maintained employment and had a daughter for whom he paid $25 dollars per week in child support.
After the jury recommended sentencing Petitioner to death, Petitioner’s post-conviction counsel uncovered relevant mitigating evidence. Post-conviction counsel submitted affidavits indicating that Petitioner’s mother was an alcoholic who drank during her pregnancies, that Social Services had determined that Petitioner’s mother neglected him and had placed him with his grandparents, that Petitioner’s grandfather had abused at least one of Petitioner’s half-siblings and probably had abused the other children, presumably including Petitioner, and that Petitioner’s custodial grandmother was a convicted murderer. Additionally, counsel submitted an affidavit from a Dr. Smalldon stating that Dr. Schonberg’s report was inadequate and unprofessional. In particular, Dr. Smalldon criticized Dr. Schonberg’s willingness to accept Petitioner’s statements about his life at face value and draw such broad conclusions from an hour long interview. Further, Dr. Smalldon opined that Petitioner may suffer from a mild brain impairment. Unfortunately, post-conviction counsel was not able to fully develop this evidence due to the post-conviction trial court’s refusal to allow a hearing.
B. The Ohio Courts’ Treatment of Counsel’s Conduct
Despite the conduct of counsel and evidence suggesting that Petitioner’s childhood was not as “happy and normal” as reported in the pre-sentence report, PSRI at 8, all of the Ohio courts determined that counsel’s decision to forgo the presentation of mitigation evidence was “strategic.” See State v. Keith, 79 Ohio St.3d 514, 684 N.E.2d 47, 67 (1997); State v. Keith, 1998 WL 487044 (Ohio App. 3 Dist. May 1998); State v. Keith, 1996 WL 156710, *23 (Ohio App. 3 Dist. April 5, 1996); State v. Keith, No. 94-CR-0042 (Common Pleas Ct. of Crawford County Ohio Feb. 4 1998). They reasoned that mitigation evidence was inconsistent with Petitioner’s claim of innocence at trial. Additionally, the Ohio Court of Appeals held that the evidence submitted in affidavit form by post-conviction counsel was merely duplicative of evidence contained in both Dr. Schonberg’s report and the pre-sentence report. Thus, it held that counsel’s failure to present mitigation evidence did not prejudice Petitioner.
C. Standard of Review
As noted in the majority opinion, AED-PA governs this Court’s review of the state court holding in this case. Under AED-PA, this Court may only reverse a state court holding if the holding was: “(1) con*682trary to or 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). Under § 2254(d)(1) a state court decision is contrary to a 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 if the state court decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495 (2000). A state court decision is an unreasonable application of clearly established Federal law if “the state court identifies the correct governing legal principle but unreasonably applies that principal to the facts of the prisoner’s case.” Id.
D. Clearly Established Law on Ineffective Assistance of Counsel
The Supreme Court first articulated the now familiar two part test for determining whether counsel is ineffective in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and “[i]t is past question that the rule set forth in Strickland qualifies as ‘clearly established Federal law, as determined by the Supreme Court of the United States.’ ” Williams, 529 U.S. at 390, 120 S.Ct. 1495. Under Strickland, a defendant seeking to establish that his counsel’s assistance was ineffective must show: (1) that his counsel’s performance was deficient, in other words, that it “fell below an objective standard of reasonableness;” and (2) that the defense was prejudiced by the attorney’s deficient performance. Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. In establishing prejudice, a defendant “need not show that counsel’s deficient conduct more likely than not altered the outcome of the case,” but only, “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
In Strickland, the Court dealt specifically with a claim that counsel’s failure to investigate and present mitigation evidence constituted deficient performance. Strickland, 466 U.S. at 699, 104 S.Ct. 2052. The Court explained that while strategic choices made after a through investigation “are virtually unchallengeable; ... strategic choices made after a less than complete investigation are reasonably precise to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigation or to make a reasonable decision that a particular investigation is unnecessary.” Id. at 690-91, 104 S.Ct. 2052. Thus, it follows that any decision to forgo mitigation evidence is unreasonable if not made after a reasonable decision not to investigate further. See id.
The Supreme Court has now applied Strickland in the AEDPA context at least three times to hold that a defense attorney’s failure to adequately investigate and present mitigating evidence at the sentencing phase of a death penalty trial constitutes ineffective assistance of counsel. See Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456 (June 20, 2005); Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Williams, 529 U.S. at 390, 120 S.Ct. 1495. In these cases, the Court has reiterated that trial counsel has an “obligation to conduct a thorough investigation of the defendant’s background” in death penalty cases. Wiggins, 539 U.S. at 522, 524, 123 S.Ct. 2527 (citing ABA guidelines advising attorneys to conduct thorough investigations); Williams, 529 U.S. at 396, 120 S.Ct. 1495. In this context, the Court has warned against a tendency to invoke *683“strategy” as a “post-hoc rationalization of counsel’s conduct [rather] than an accurate description of their deliberations prior to sentencing” to explain counsel’s decisions. Id. at 527, 123 S.Ct. 2527.
E. The Ohio Courts’ Decisions Were Contrary to and an Unreasonable Application of Clearly Established Federal Law
The Ohio courts’ denial of Petitioner’s ineffective assistance of counsel claim was both contrary to and an unreasonable application of clearly established Federal law as articulated by the Supreme Court in Strickland. Under Strickland, counsel’s failure to present any mitigation evidence without first conducting an investigation is considered deficient performance. 466 U.S. at 691, 104 S.Ct. 2052; see Wiggins, 539 U.S. at 523, 123 S.Ct. 2527. Thus, the Ohio courts’ holding that Petitioner’s counsel made a strategic decision not to present mitigation evidence despite his unreasonable failure to conduct any investigation is contrary to Strickland. Similarly, the Ohio courts’ determination that counsel’s submission of the presentence report and Dr. Schonberg’s evaluation was reasonable trial strategy constituted an unreasonable application of Strickland. Because the overwhelming majority of the reports contained information that was prejudicial as opposed to beneficial, counsel’s decision fell below an objective standard of reasonableness as evidenced by prevailing professional norms. Together, these errors prejudiced Petitioner because there is a reasonable probability that but for the errors one juror might have decided to sentence Petitioner to life, not death.
1. Counsel’s Errors
a. Failure to Investigate or Present Mitigation Evidence
Counsel’s complete failure to investigate before deciding not to present mitigating evidence at sentencing is deficient performance as a matter of law under Supreme Court case law, and thus, the Ohio courts’ determination that counsel did not err is contrary to Federal law as articulated in Strickland. Wiggins, 539 U.S. at 523, 123 S.Ct. 2527; Strickland, 466 U.S. at 691, 104 S.Ct. 2052. The Ohio courts all determined that counsel’s failure to present mitigation evidence was strategic. They reasoned that presenting mitigation evidence was incompatible with a claim of innocence. Putting aside the dubious proposition that mitigation and innocence are inconsistent, the Ohio courts’ reasoning must be rejected because counsel’s strategic decision not to present mitigation evidence is only protected under Strickland to the extent the decision followed a reasonable investigation. Wiggins, 539 U.S. at 523, 123 S.Ct. 2527; Strickland, 466 U.S. at 691, 104 S.Ct. 2052. It is uncontested in this case that Mr. Banks conducted absolutely no investigation. Therefore, his decision not to present mitigation evidence constituted deficient performance. Wiggins, 539 U.S. at 523, 123 S.Ct. 2527; Strickland, 466 U.S. at 691, 104 S.Ct. 2052.
b. Submission of Psychological and Pre-Sentence Reports
Counsel’s decision to submit the psychological and pre-sentence reports fell far below the standard of attorney conduct articulated in Strickland: “reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Thus, the Ohio court’s holding to the contrary constitutes an unreasonable application of Strickland.
According to ABA guidelines, counsel in death penalty cases have an obligation to consider the strategic implications of requesting a pre-sentence report where such *684reports are optional. ABA Guidelines, Death Penalty Cases, Guideline 10.12(A)(1); Strickland, 466 U.S. at 688, 104 S.Ct. 2052 (stating that ABA standards are guides to prevailing professional norms); see also Wiggins, 539 U.S. at 524, 123 S.Ct. 2527. The commentary following Guideline 10.12 expressly notes that requesting such a report in Ohio may amount to ineffective assistance of counsel because it allows the prosecution to present a defendant’s prior record and victim impact evidence, where such information would otherwise be inadmissible. ABA Guideline 10.12 and accompanying commentary; Ohio Rev.Code § 2929.03(D) (stating that only a defendant may request reports). Additionally, Guideline 10.12 states that “counsel should ... provide to the report preparer information favorable to the client [and] ... take appropriate steps to ensure that improper, incorrect or misleading information that may harm the client is deleted from the report.”
In this case, Mr. Banks conduct fell well below the standards set forth in ABA Guideline 10.12. In the first place, considering the information contained in the reports, it is highly unlikely that Mr. Banks considered the strategic implications of placing the reports before the jury. No reasonable defense attorney could actually read these reports and determine that there was anything to be gained by submitting them as evidence at the mitigation stage. As discussed above, the reports contained pages documenting Petitioner’s prior record, impact on the victims and their families, evidence implicating Petitioner, erroneous statements about Petitioner’s background and childhood, and a psychologist’s conclusion that no mitigating factors existed. In contrast, the report contained one sentence on Petitioner’s version of the events. Additionally, Dr. Schonberg’s report stated that Petitioner was not depressed, which a jury could easily interpret as evidence of lack of remorse. Finally, Dr. Schonberg also made the outrageous statement that no mitigating factors existed. This is exactly what the jury, not Dr. Schonberg, was convened to determine. No reasonable attorney could conclude that the mitigating value of the report outweighed the introduction of the prejudicial evidence simply because the report also contained a handful of positive sentences about the Petitioner.
The Ohio courts’ determination to the contrary is an unreasonable application of Strickland. The Ohio courts found that the decision of counsel to submit the reports was “strategic.” Strickland, however, warns courts not to accept post-hoc rationalizations for counsel’s conduct. The Ohio courts’ justification of counsel’s conduct is just such a rationalization. There is absolutely no support in the record evidencing that Mr. Banks considered the implications of submitting the reports. Moreover, as explained above, counsel’s decision, to the extent it was even a conscious decision, was not a reasonable strategy-
Next, there is no evidence that Mr. Banks made any effort to provide favorable information to the probation officer who prepared the pre-sentence report. As will be discussed more thoroughly in the section below on prejudice, post-conviction counsel discovered relevant mitigation evidence that should have been presented at trial. Mr. Banks failed to have this information included in the pre-sentence report. Thus, the jury never heard the evidence.
Finally, Mr. Banks made no effort to insure that the information contained in the report was accurate. Again, as will be discussed below, the reports submitted to the jury contained information that conflicted with information discovered by the post-conviction counsel. Because of counsel’s failure to correct the erroneous information, the jury received inaccurate and *685prejudicial information about Petitioner’s life.
2. Prejudice
Counsel’s failure to present mitigating evidence and his submission of the psychological and presentence reports prejudiced Petitioner. To demonstrate prejudice under Strickland, Petitioner must show that but for counsel’s errors there is a reasonable probability that the outcome of the proceedings would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Under Ohio law, a jury verdict sentencing a defendant to death must be unanimous. State v. Robb, 88 Ohio St.3d 59, 723 N.E.2d 1019, 1044 (2000). Thus, to demonstrate prejudice in this case, Petitioner need only show that but for counsel’s errors, there is a reasonable probability that one juror luould have voted differently.
In this case, there is a reasonable probability that one juror would have spared Petitioner’s life if the jury had not received Petitioner’s prior record or the victim impact evidence contained in the reports and instead received mitigation evidence. Under Ohio law, neither a defendant’s prior record nor victim impact evidence is admissible to prove aggravation. See Ohio Rev.Code § 2929.04; State v. Jackson, 92 Ohio St.3d 436, 751 N.E.2d 946, 957 (2001) (limiting aggravating factors to statutory aggravating factors that have been charged and proved beyond a reasonable doubt). Thus, but for counsel’s submission of the reports, the jury would not have had access to Petitioner’s record of the victims’ trauma. See ABA Guideline 10.12 and accompanying commentary. Furthermore, the jury clearly considered Petitioner’s pri- or record in its deliberations. The jury’s prejudicial consideration of Petitioner’s prior record is evidenced by a question the jury submitted to the court during its sentencing deliberations. The jury asked the court to verify the dates of Petitioner’s imprisonment for a prior robbery. Petitioner’s prior record very clearly affected the jury’s deliberations, and thus, there is a reasonable probability that but for counsel’s submission of the reports, one juror would have voted to recommend sentencing Petitioner to life imprisonment instead of death.
Had defense counsel acted as competent counsel, the jury would have heard mitigating evidence concerning Petitioner in place of the victim impact evidence and Petitioner’s prior record. The jury would have known and been able to consider the information obtained by post-conviction counsel, namely, that Petitioner’s mother was an alcoholic who drank during her pregnancies; that Social Services determined that Petitioner’s mother neglected him and placed him with his grandparents; that Petitioner’s grandfather abused at least one of Petitioner’s half-siblings and probably abused the other children, presumably including Petitioner;1 and that Petitioner’s custodial grandmother was a convicted murderer. See Rompilla, 125 S.Ct. at 2468-69 (finding prejudice where evidence that Petitioner was abused and that his mother was an alcoholic was not presented at the mitigation hearing).
The majority’s assertion that the mitigation evidence duplicated information already submitted to the jury through the reports is simply incorrect. First, Dr. Schonberg’s report states that Petitioner’s family had no history of alcoholism. In fact, Petitioner’s mother admits that she was an alcoholic who drank while she was pregnant. Additionally, there is substan*686tial evidence of drug abuse in Petitioner’s family. Second, the reports do not state that Ohio Social Services found that Petitioner’s mother was not fit to care for him. Instead, the pre-sentence report states, “[Petitioner] was raised by his grandfather ... due to the fact that his mother was too young.” This statement implies that Petitioner’s mother voluntarily relinquished him to her parents and not that Social Services had to come and take him away.2 Finally, Dr. Schonberg’s report states that Petitioner was not abused. While it is not clearly established that Petitioner was abused, there is evidence suggesting abuse. This evidence could have been further developed if the post-conviction trial court had allowed post-conviction counsel to present evidence at a hearing.
In light of counsel’s submission of extremely prejudicial evidence and counsel’s failure to submit mitigation evidence, there is certainly a reasonable probability that but for counsel’s errors one juror would have chosen to sentence Petitioner to life and not death.
II.
Ineffective Assistance of Counsel During Voir Dire
In addition to abdicating his duties during the mitigation phase of trial, defense counsel also rendered ineffective assistance during voir dire. Despite the ABA death penalty guidelines clear mandate that counsel should “develop a strategy for rehabilitating ... [scrupled] jurors,” Comments to Guideline 10.10.2., defense counsel utterly failed to even attempt to rehabilitate scrupled jurors. Given the equivocal nature of the scrupled jurors statements, a reasonable probability exists that defense counsel would have been able to successfully rehabilitate the jurors. Thus, counsel’s failure prejudiced Petitioner under Strickland, 466 U.S. at 668, 104 S.Ct. 2052, and Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987), and the Supreme Court of Ohio’s decision to the contrary was an unreasonable application of clearly established federal law. Counsel’s failure to attempt to rehabilitate jurors provides an additional basis for vacating Petitioner’s sentence of death because it led to a jury “organized to return a verdict of death.” Id. at 668, 107 S.Ct. 2045 (internal citations and quotations omitted).
A. Events at Voir Dire
During voir dire the district court asked all jurors, “In a proper case if the facts warrant it and the law permits it, could you join in signing a verdict form which might recommend to the court the imposition of the death penalty?” (J.A. at 1514.) Two jurors gave equivocal responses. First, Juror Barbara Costamire responded “that is bothering me.” (J.A. at 1517.) The court asked “that is bothering you?,” and she responded “yes,” at which point the trial court excused her. (J.A. at 1517.) Second, Juror Julie Hoffman responded, “that would be an uncomfortable thing for me to do.” The court then excused Julie Hoffman without any followup. (J.A. at 1519.) Counsel did not object to the trial court’s exclusion of either juror or attempt to rehabilitate them.
B. Ohio Supreme Court Decision
The Ohio Supreme Court found that defense counsel’s performance during voir dire was not ineffective within the meaning of the Sixth Amendment. Applying Strickland, 466 U.S. at 668, 104 S.Ct. 2052, *687the court held that counsel did not render deficient performance because counsel’s actions during voir dire are presumed strategic and because even if counsel’s voir dire performance was deficient it did not prejudice Petitioner. The Ohio Supreme Court recognized that the Supreme Court’s decision in Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987), requires courts to presume prejudice when a trial court improperly excludes jurors with reservations on the death penalty, but declined to apply the presumption to counsel’s errors, which resulted in a similar exclusion.
C. Standard of Review
Here, again our review of the Ohio Supreme Court’s decision is limited by AED-PA. As discussed in the previous section, we may only overturn a state court determination on habeas review if the state court’s holding was contrary to or an unreasonable application of clearly established federal law as articulated by the Supreme Court. 28 U.S.C. § 2254(d). A state court’s failure to extend Supreme Court cases may constitute an unreasonable application of clearly established law. Yarborough v. Alvarado, 541 U.S. 652, 666, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004).
D. The Ohio Supreme Court’s Decision Was an Unreasonable Application of Strickland and Gray
The Ohio Supreme Court’s determination that defense counsel did not render constitutionally ineffective assistance in failing to attempt to rehabilitate jurors is an unreasonable application of the Supreme Court’s holdings in Strickland and Gray. As discussed in section I, under Strickland, a defendant seeking to establish that his counsel’s assistance was ineffective must show: (1) that his counsel’s performance was deficient; and (2) that the defense was prejudiced by the attorney’s deficient performance. Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. Here, counsel acted in a manner contrary to established professional norms by failing to attempt to rehabilitate jurors. Furthermore, his actions resulted in the exclusion of two jurors for whom a reasonable probability of rehabilitation existed. If such jurors had been rehabilitated, their exclusion would have been reversible error under Gray. Thus, it is unreasonable not to find prejudice under Strickland and Gray.
1. Counsel’s Failure to Attempt to Rehabilitate Constituted Deficient Performance
The majority relies much on Strickland ’s presumption that an attorney’s conduct is strategic unless proven otherwise. The presumption of strategy is inappropriate in this case, however, because Petitioner has successfully rebutted it.3 In the instant case, Petitioner has submitted an affidavit from an experienced death penalty defender, Gerald Simmons. According to Simmons, it is standard practice for a death penalty defender to attempt to rehabilitate scrupled jurors and to object to their exclusion. In fact, Simmons states *688that it is “unacceptable” not to attempt to rehabilitate scrupled jurors or object to their exclusion.
Simmons statements are supported by the 2003 ABA Guidelines on Death Penalty Representation.4 Guideline 10.10.2 indicates that death penalty defenders should be familiar with techniques to life qualify the jury and rehabilitate scrupled jurors. The commentary to 10.10.2 further explains:
Counsel should conduct a voir dire that is broad enough to expose those prospective jurors who are unable or unwilling to follow the applicable sentencing law, whether because they will automatically vote for death in certain circumstances or because they are unwilling to consider mitigating evidence. Counsel should also develop a strategy for rehabilitating those prospective jurors who have indicated opposition to the death penalty.
ABA Guideline 10.10.2, commentary; see also Strickland, 466 U.S. at 688, 104 S.Ct. 2052 (noting that ABA guidelines reflect prevailing professional norms). In light of Simmons’ affidavit and the ABA guidelines, there is no reason for this Court to presume that counsel’s conduct during voir dire was strategic. In other words, counsel’s failure to attempt to rehabilitate the scrupled jurors or object to their exclusion was objectively unreasonable in light of prevailing professional norms.
2. Counsel’s Failure to Attempt to Rehabilitate Prejudiced Petitioner
To establish that a defense attorney’s failure to rehabilitate a scrupled juror was prejudicial in violation of the Sixth Amendment, a defendant must demonstrate that there is a reasonable probability that but for counsel’s errors, the excluded juror would have been rehabilitated and thus not subject to exclusion under Witherspoon and Witt. Because a reasonable probability existed that counsel’s attempts to rehabilitate jurors Julie Hoffman and Barbara Costamire would have been successful, Petitioner has established prejudice.
a. Improper Exclusion of Juror Under Witherspoon and Witt is Presumed Prejudicial
A juror may not be excluded under Witherspoon unless the juror’s views on the death penalty “prevent or substantially impair the performance of his duty as juror in accordance with instructions and oath.” Witt, 469 U.S. at 424, 105 S.Ct. 844; Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). A juror’s mere reservations or scruples regarding the death penalty are not a valid ground upon which a trial court may exclude a juror. Id. Where a trial court improperly excludes a juror under Wither-spoon for the juror’s mere reservations or scruples, the trial court’s error is presumed prejudicial and the death sentence must be reversed. Gray, 481 U.S. at 667-668, 107 S.Ct. 2045. The improper exclusion of even one qualified juror under Witherspoonr-Witt may result in a jury more likely than the average jury to impose death, thus rendering the jury partial. Id. As the Supreme Court explained in Gray,
Because the Witherspoon-Witt standard is rooted in the constitutional right to an impartial jury and because the impar*689tiality of an adjudicator goes to the very integrity of the legal system, the Chapman harmless-error analysis cannot apply. We have recognized that “some constitutional rights are so basic to a fair trial that their infraction can never be treated as harmless error.” The right to an impartial adjudicator, be it judge or jury, is such a right. As stated in Witherspoon, a capital defendant’s constitutional right not to be sentenced by a tribunal organized to return a verdict of death surely equates with a criminal defendant’s right not to have his culpability determined by a tribunal organized to convict.
Id. (internal quotation marks and citations omitted).
b. Strickland’s Reasonable Probability Standard
As discussed above, Strickland requires a defendant to show that there is a reasonable probability that the outcome would have been different. 466 U.S. at 694, 104 S.Ct. 2052. Gray instructs courts to presume the outcome would have been different where a juror is excluded under Witherspoon and Witt. 481 U.S. at 668, 107 S.Ct. 2045. Therefore, it must follow that if Petitioner can show that there is a reasonable probability that a juror could not have been properly excluded under With-erspoon, this Court must presume that there is a reasonable probability that the outcome would have been different.
c. Petitioner Has Shown A Reasonable Probability
Here, Petitioner has satisfied this burden. Petitioner has shown that there is a reasonable probability that his defense counsel could have successfully rehabilitated two of his jurors, Julie Hoffman and Barabara Costamire. Neither juror clearly stated that they were incapable of imposing the death penalty but only that its imposition would “bother” them or make them “uncomfortable.” There is nothing else in the record to indicate that Hoffman and Costamire could not have imposed the death penalty despite the discomfort it might have caused them. While the trial court might have acted within its discretion in excluding them in lieu of these statements, it seems likely that defense counsel could have rehabilitated them. That is, in light of the equivocal nature of the statements of Hoffman and Costamire, there is a reasonable probability that defense counsel could have successfully shown that although Hoffman and Costa-mire had reservations about the death penalty, they were capable of following their instructions and oath.
d.The Ohio Supreme Court’s Decision to The Contrary Was Unreasonable
The Supreme Court of Ohio’s determination that Gray does not extend to ineffective assistance of counsel cases is unreasonable. Whether defense counsel could have rehabilitated a juror will always be speculative, thus leaving defendants with no recourse where defense counsel errs and that error causes prejudice. Petitioner has no way of proving that rehabilitation would have been successful because the attorney’s failure necessarily leaves no record. It should not follow that an attorney’s abdication of his responsibilities can never result in prejudice within the meaning of the Sixth Amendment. Consequently, the only rational holding would be to presume prejudice under Gray when, as here, the jurors responses are equivocal, and do not clearly disqualify them under Witherspoon.
III.
The Trial Court’s Dismissal of Scrupled Jurors
While I believe that Petitioner’s ineffective assistance of counsel claims warrant *690habeas relief, I do not believe that the trial court’s dismissal of scrupled prospective jurors is grounds for habeas relief. Unlike the majority, however, I see no need to resort to the amorphous concept of “federalism” to dismiss this claim, especially as both AEDPA and the doctrine of procedural default adequately protect the interest in deferring to state court proceedings. Assuming that Gray v. Mississippi, 481 U.S. at 667-668, 107 S.Ct. 2045, is clearly established federal law, there is no justification for refusing to apply it to this case, and the majority cites no authority for doing so. Congress has defined the circumstances in which it believes a grant habeas of relief is appropriate — where a state court’s decision is contrary to or an unreasonable application of clearly established federal law — and this Court should not fashion its own doctrines in order to avoid granting the writ.
Accordingly, I would simply hold that Petitioner procedurally defaulted this claim. As the majority correctly notes, Petitioner’s counsel failed to make a contemporaneous objection to the trial court’s exclusion of the scrupled jurors. Inasmuch as Petitioner cannot show prejudice resulting from his attorney failure, his claim is defaulted. Petitioner cannot show prejudice because his claim is meritless. Although a trial court may not dismiss a prospective juror simply because he or she possesses scruples about the death penalty, the trial court has the authority to dismiss prospective jurors who indicate an inability to apply the law. Witt, 469 U.S. at 424, 105 S.Ct. 844; Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). A prospective juror’s statement that he or she is unable to consider the death penalty evidences an inability to apply the law. See Witt, 469 U.S. at 424, 105 S.Ct. 844; Adams, 448 U.S. at 45, 100 S.Ct. 2521. Consequently, a trial court may dismiss a prospective juror who indicates that he or she would be unable to consider the death penalty. See Witt, 469 U.S. at 424, 105 S.Ct. 844; Adams, 448 U.S. at 45, 100 S.Ct. 2521. Furthermore, the prospective juror’s responses need not unmistakably indicate an inability to follow the law. Witt, 469 U.S. at 425-26, 105 S.Ct. 844. The trial judge has the discretion to exclude a prospective juror where, “the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law” and “deference must be paid to the trial judge who sees and hears the juror.” Id. at 426, 105 S.Ct. 844. In this case, the prospective jurors’ statements were ambiguous, and the trial court acted within its discretion in excluding them.
IV.
Conclusion
For the reasons set forth above, I would uphold Petitioner’s conviction but vacate the sentence of death imposed on Petitioner and remand for a new mitigation phase trial.
. Although Petitioner informed Dr. Schon-berg that he was not abused, Dr. Smalldon states in his affidavit that Dr. Schonberg's conclusions are not warranted in light of his brief meeting with Petitioner and that it was unprofessional to take what Petitioner said at face value.
. Additionally, it seems that the mitigation expert hired by post-conviction counsel was unable to obtain the Social Services file because there was no court order releasing it. It is unclear if post-conviction counsel requested a court order but the post-conviction trial court was clearly not interested in developing a factual record.
. Petitioner’s presentation of rebuttal evidence distinguishes this case from Stanford v. Parker, 266 F.3d 442 (6th Cir.2001), on which the majority relies. In Stanford, which was not a Supreme Court case, and thus less persuasive in our AEDPA review, this Circuit held that an attorney's failure to "life qualify” the jury in a death penalty case did not constitute deficient performance under Strickland. 266 F.3d at 454. There, this Court noted that "[the petitioner] presented] no evidence to rebut the presumption that counsel’s failure to ask life-qualifying questions during general voir dire constituted trial strategy.” Id. Furthermore, it is questionable whether it makes sense to apply a presumption that an attorney's conduct is strategic in cases like the one at bar, in which counsel is admittedly not qualified to represent his client under the law of the relevant jurisdiction.
. Although the guidelines were complied in 2003, many years after Bank's conduct at voir dire, the guidelines are primarily a summary of existing practice and rely on numerous sources that predate Bank's conduct. Eric M. Freedman, Introduction to "The Guiding Hand of Counsel”: ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31(4) Hofstra L.R. 903, 903 (2003); see also Hamblin v. Mitchell, 354 F.3d 482, 486-87 (6th Cir.2003) (holding that the 2003 guidelines essentially codify norms applied to cases in the 1980s).