Getsy v. Mitchell

495 F.3d 295, 2007 U.S. App. LEXIS 17620, 2007 WL 2118956

Opinions

GILMAN, J., delivered the opinion of the court, in which BOGGS, C. J., BATCHELDER, GIBBONS, ROGERS, SUTTON, McKEAGUE, and GRIFFIN, JJ., joined. MERRITT, J. (pp. 318-25), delivered a separate dissenting opinion, in which MARTIN, DAUGHTREY, MOORE, COLE, and CLAY, JJ., joined. MARTIN, J. (pp. 325-27), joined by Judge MERRITT, and MOORE, J. (p. 327-28), joined by Judge MERRITT, also delivered separate dissenting opinions.

OPINION

RONALD LEE GILMAN, Circuit Judge.

In September of 1996, an Ohio jury convicted Jason Getsy of murder-for-hire in connection with the killing of Ann Serafino and recommended that he be sentenced to death. The state trial court concurred, and Getsy received no relief either on direct appeal or in state postconviction proceedings. He thereafter filed a petition for federal habeas corpus relief. Getsy’s petition was denied by the district court, but a panel of this court reversed the district court’s judgment with regard to his death sentence. The panel majority held that Getsy’s death sentence was unconstitutionally disproportionate to the life sentence that the separately tried instigator of the plot received for procuring the murder. It also remanded the case for an evidentiary hearing regarding Getsy’s claim of judicial bias against the state -trial-court judge. Thereafter, this court granted the Warden’s petition for en banc review and vacated the panel decision. For the reasons set forth below, we AFFIRM the district court’s denial of Getsy’s habeas corpus petition.

I. BACKGROUND

A. Factual background

The Ohio Supreme Court set forth the relevant facts as follows:

Charles (“Chuckie”) Serafino lived with his mother, Ann Serafino. On the evening of July 6, 1995, Ann went to bed at approximately 11:00 p.m. Chuckie was on the love seat in the family room when, sometime after 1:00 a.m. on July 7, he heard a loud explosion. Shells from a shotgun blasted out the sliding glass door behind him and wounded him in the arm. As he ran for the bathroom to inspect his injuries, Ann came out of her bedroom. Chuckie remembered hearing his mother say to someone, “What are you doing here? Get out of here.” He also remembered hearing someone say, “Shoot the bitch,” or “Kill the bitch.” Serafino next recalled seeing a gun in his face and being shot again. He fell to the bathroom floor and pretended to be dead. After the intruders left, he called 911.

Frederick Hanley, Jr., Chuckie’s neighbor, jumped from his bed upon hearing gunshots. He looked at his digital alarm clock, which read 1:22 a.m. As he was going downstairs, he heard at least one additional gunshot. Once outside, he heard footsteps that appeared to be running away from the Serafino residence. He instructed his wife to call 911 and inform the police that shots were coming from the Serafino residence and that someone was running towards the city of Hubbard.

Officer Thomas Forgacs of the city of Hubbard Police Department was one of the first officers to respond to the call. The officers broke into the Serafino home and found Chuckie lying on the floor with blood all over him. Chuckie asked the officers to check his mother; she was dead.

Forgacs left the scene and began checking the Hubbard area for a white Crown Victoria owned by John Santine. For-gacs went to 24 1/2 South Main Street, where he had seen Saritine’s car parked on the evening of July 6. He found San-tine’s car parked in the driveway with another car pulled in behind it.

Earlier in the year, Santine had attempted to purchasé a portion of Chuck-ie Serafino’s lawn-care business and had deposited $2,500 in the business’s account. Subsequently, Chuckie violated probation and was incarcerated in the Trumbull County Jail until July 6, 1995. While Chuckie was in jail, Santine attempted to take over Chuckie’s business. Santine transferred Chuckie’s building lease and equipment into his own name, which caused an altercation between Santine and Ann Serafino and Chuckie’s sister. The Serafinos filed a civil action against Santine while Chuckie was still in jail.

Forgacs searched for Santine’s car because of a conversation he had had on June 20, 1995 with Richard McNulty. McNulty, who lived at 24 1 /2 South Main and who is a co-defendant, had previously served as a police informant. On June 20, Forgacs asked McNulty, who worked for Santine, “What does Johnny have in store for Chuckie when he gets out of jail?” McNulty told For-gacs, “He’s dead. He’s bought and paid for.” McNulty told Forgacs that San-tine had lined up a hit man, Tony Antone, to kill Chuckie Serafino. Forgacs gave little credence to McNulty’s statements, and didn’t inform Chuckie or follow up on the information.

Forgacs returned to the murder scene and told the Hubbard Township Police what McNulty had told him a few weeks earlier. Later that morning, Detective Donald Michael Begeot of the Hubbard Township Police Department and For-gacs went to the McNulty apartment at 24 1/2 South Main to take McNulty in for questioning.

Initially, McNulty minimized his involvement and denied that he had told For-gacs about the contract on Chuckie. Based on other information obtained from McNulty, Begeot obtained an arrest warrant for Getsy. At approximately 10:00 p.m. on July 7, 1995, Getsy was arrested in the driveway of 24 1/2 South Main. He was given Miranda warnings at the scene and later at the Hubbard Township Police Department. At approximately 1:00 a.m., on July 8, 1995, Getsy gave a videotaped interview. Getsy told Begeot that Ben Hudach called him on the evening of July 6, 1995, and told him to ,come to 24 1/2 South Main Street. When Getsy got there, Hudach, a co-defendant, told Get-sy that they (Getsy, Hudach, and McNulty) had to “take out some guy.” ■Santine was not present, but Hudach related what Santine had told him earlier. Money had been discussed, but Hu-dach was not sure of the amount. Getsy later indicated that he participated in the shootings because he was scared of Santine, but did not do it for the money. Sometime on July 6, 1995, Getsy, Hu-dach, and McNulty drove to the Serafino residence. They could not find a place to park so they returned to 24 1/2 South Main Street. When'they returned, San-tine was at the apartment and drove them back to the Serafino house. Getsy described the guns that they took with them, which included a shotgun, a SKS rifle, and a .357 magnum handgun.

Getsy explained that after Santine dropped them off, Hudach sprained his ankle and went back to where they were supposed to be picked up. Getsy stated, “[T]hat left me and Rick to get it done.” He admitted that what they were supposed to do was kill Chuckie Serafino. Getsy explained that he and'-McNulty fired simultaneously through the sliding glass door on the back of the Serafino house. They entered the house through the shattered door and shot at Chuckie as he was running down the hall. When they saw Ann Serafino, Getsy stated, they “just kept shooting.”

During the interview with Begeot, Getsy was reluctant to mention Santine’s name. He told Begeot that the same thing that happened last night could happen to him. He asked whether San-tine would ever see the interview tape. Begeot assured Getsy that Santine would not be able to get to.him. Getsy also asked Begeot if he was going to die, and Begeot told him, “No.”

Getsy admitted that he had the SKS rifle and the handgun during the shootings. He explained that when he was shooting the SKS, the clip fell out so he had to pull out the handgun.

Getsy’s description of the weapons he and McNulty used was verified by physical evidence recovered at the scene. Michael Roberts, a forensic scientist, identified the projectiles recovered from the murder scene. None of the projectiles found outside the family room area, where the sliding glass door was blown out, was discharged by the shotgun which, according to Getsy, McNulty carried and fired. The projectiles linked to the shotgun were recovered in the family room.

Getsy admitted that they had been instructed to kill any witnesses. When Begeot asked him what they were told about witnesses in the house, Getsy replied, “[I]f we were seen, to do them, too.”

After the shootings, Hudach called San-tine to tell him it was finished and to pick them up. Santine told Hudach that there were cops everywhere and that they should run through the woods to get back to the apartment. Santine also told Hudach to • ditch the guns in the woods.

Getsy, McNulty, and Hudach arrived back at 24 1/2 South Main, where Josh Koch and Santine were waiting for them. Santine ordered them to take off their clothes and take a bath. Getsy was the last to bathe. When he came out of the bathroom, his clothes and boots were gone. He did not know what happened to them.

Koch testified that he was at 24 1/2 South Main Street on July 6 and 7, 1995. He knew that Getsy, McNulty, and Hu-dach were going out to do something for Santine, but they declined to give him any details. He was to watch TV and write down the shows that were on so the other three could memorize the list for an alibi.

After Getsy, McNulty, and Hudach left, Koch waited in the apartment. Santine came to the apartment and, sometime around 1:00 a.m., jumped up and said, “I heard the gunshots.” Immediately thereafter, the telephone rang and Koch heard Santine talking to someone in a fast, excited manner. Santine said, “So you killed them, right, you killed them both? * * * Okay. Well, I can’t come pick you up. The cops are everywhere, they are pulling over everybody, you got to run through the woods and ditch the guns.” Santine hung up and happily screamed, “I fucking love these guys.” According to Koch, Santine was very pleased with the three men. He said, “You guys want $10,000? I’ll give you $10,000.” . McNulty • told him he just wanted a wedding ring for his girlfriend. Hudach said that it had been a favor for Santine. Getsy indicated that he needed «money for his car.

The next day, Koch heard Getsy bragging to Patricia Lawson about shooting Ann Serafino. Getsy grabbed a piece of pizza with no cheese on it and said, “This looks just like this bitch’s face after we shot her.”

Michael Dripps, a close friend of Getsy, McNulty, and Hudach, acknowledged that Getsy was happy, secure, and tough when he had a gun in his hand. Dripps was present at the lawn-care business when Gum-out had been used to wipe prints off the weapons before the Serafi-no shootings. Dripps heard Santine instruct Getsy, McNulty, and Hudach to kill Chuckie Serafino and all witnesses. Dripps also observed McNulty and Hu-dach in camouflage clothing on the night of the killing.

State v. Getsy, 84 Ohio St.3d 180, 702 N.E.2d 866, 873-75 (1998).

B. Procedural background

In July of 1995, an Ohio grand jury indicted Getsy for the aggravated murder of Ann Serafino, the attempted murder of Charles Serafino, and related charges that included aggravated burglary. The indict ment also charged Getsy with three capital specifications that rendered him eligible for the death penalty, including: (1) murder or attempted murder of two or more people, (2) murder for hire, and (3) felony murder. Getsy proceeded to trial in July of 1996 and was ultimately found guilty of all charges and specifications. Following a penalty-phase hearing, the jury recommended that Getsy be sentenced to death. The trial judge accepted the jury’s recommendation and imposed- a sentence of death for the aggravated murder charge.

Getsy appealed to the Ohio Supreme Court, raising 17 claims of error. The Court affirmed Getsy’s sentence and conviction as to all grounds raised. Getsy, 702 N.E.2d at 893. Simultaneously with his direct appeal, Getsy also filed a petition for state postconviction relief. The Ohio trial court denied his petition for relief, and the Ohio Supreme Court declined to hear his postconviction appeal. Subsequently, the Ohio Supreme Court summarily denied Getsy’s application to reopen his direct appeal.

Having exhausted all of his state-court remedies, Getsy filed a petition in federal district court for habeas corpus relief pursuant to 28 U.S.C. § 2254. Getsy’s habeas petition raised 21 separate claims of error, 2 of which the district court dismissed as defaulted and the remainder of which the court denied on the merits. The only issue that the district court certified for appeal was whether Getsy’s sentence was unconstitutionally arbitrary and disproportionate in relation to that imposed on Santine. On appeal, this court expanded Getsy’s Certificate of Appealability (COA) to include seven additional claims: (1) whether Getsy’s due process rights were violated by the failure of the trial judge to recuse himself, (2) whether Getsy’s confession was obtained knowingly and voluntarily, (3) whether Getsy was denied the right to a fair and impartial jury, (4) whether Getsy was denied his right to the effective assistance of counsel in the penalty phase of his trial, (5) whether sufficient evidence supported Getsy’s conviction regarding the murder-for-hire aggravating circumstance, (6) whether the Ohio prosecutor improperly engaged in selective prosecution by seeking the death penalty against Getsy, and (7) whether the errors asserted had the cumulative effect' of denying Getsy the due process of law.

A panel of this court reversed the judgment of the district court regarding Get-sy’s death sentence, holding that it was unconstitutionally arbitrary and disproportionate in relation to the life sentence received by Santine in a separate trial. Getsy v. Mitchell, 456 F.3d 575, 598 (6th Cir.2006), reh’g en banc granted, opinion vacated. The panel majority also remanded Getsy’s claim of judicial bias for an eviden-tiary hearing. Id. at 595. Subsequently, the Warden petitioned this court to rehear Getsy’s appeal en banc. We granted the petition for rehearing and vacated the panel decision in November of 2006.

II. ANALYSIS

A. Standard of review

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AED-PA), a federal court

may not grant a writ of habeas [corpus] to a petitioner in state custody with respect to any claim adjudicated on the merits in state court unless (1) the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” ... or (2) the state court’s decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.”

Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir.2002) (quoting 28 U.S.C. § 2254(d)). “A state court’s legal decision is ‘contrary to’ clearly established federal law ... if the state court arrived at the conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decided a case differently than a Supreme Court decision on a set of materially indistinguishable facts.” Lopez v. Wilson, 426 F.3d 339, 342 (6th Cir.2005) (en banc). Alternatively, a state court decision will not be held to be an “unreasonable application” of clearly established federal law unless the decision is “objectively unreasonable,” not simply erroneous or incorrect. Williams v. Taylor, 529 U.S. 362, 409-11, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

B. Proportionality

The primary issue raised by Getsy, and the only issue certified for appeal by the district court, is whether Getsy’s sentence was unconstitutionally arbitrary or disproportionate in relation to that received by Santine. Getsy’s argument ultimately rests on the fact that Santine, the mastermind who directed codefendants Getsy, Hudach, and McNulty to kill Charles Ser-afíno, did not receive the death penalty. Santine’s indictment mirrored Getsy’s. In a separate trial that took place after Get-sy’s, Santine was convicted of aggravated murder and aggravated burglary, but was acquitted of all the capital specifications charged and thus ineligible for the death penalty. Getsy claims that this disparity renders his death sentence arbitrary and disproportionate.

On direct review, the Ohio Supreme Court first addressed Getsy’s related contention that Ohio’s death penalty procedures are flawed because the court “limits itself to death cases when conducting its statutorily mandated proportionality review.” Getsy, 702 N.E.2d at 889. Relying on its decision in State v. Steffen, 31 Ohio St.3d 111, 509 N.E.2d 383, 386 (1987), which held that “[t]he proportionality review required by R.C. 2929.05(A) is satisfied by a review of those cases already decided by the reviewing court in which the death penalty has been imposed,” the Court summarily rejected Getsy’s argument. The Court next independently reviewed Getsy’s death sentence for appropriateness and proportionality pursuant to Ohio Rev.Code Ann. § 2929.05. Getsy, 702 N.E.2d at 889. Comparing Getsy’s case to other similar murder-for-hire death penalty cases in Ohio, the Court concluded that “it is clear that imposing the death sentence on Getsy is not disproportionate.” Id. at 892.

Getsy renews his claim of arbitrariness and disproportionality before us en banc. At oral argument, Getsy’s counsel conceded that Getsy’s death sentence was not arbitrary or disproportionate at the time that it was imposed. Instead, Getsy contends that his sentence became unconstitutional only later when a different jury sentenced Santine to life imprisonment for his role in the same offenses. According to Getsy, Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and their progeny establish a duty on the part of the Ohio Supreme Court to “correct this arbitrary and capricious sentence.” This argument, in our opinion, advocates a novel constitutional rule that Supreme Court precedent simply does not support, let alone dictate.

Getsy accurately asserts that the fractured majority holding in Furman has come to stand for the general principle that the arbitrary and disproportionate imposition of the death penalty violates the Eighth Amendment. See, e.g., Walton v. Arizona, 497 U.S. 639, 657, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (noting that Fur-man “has come to stand for the principle that a sentencer’s discretion to return a death sentence must be constrained by specific standards, so that the death penalty is not inflicted in a random and capricious fashion”), overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Proceeding from this abstract principle to the specific conclusion urged by Getsy-that his sentence was unconstitutionally arbitrary or disproportionate in relation to that of San-tine-necessarily entails at least one of two additional premises: (1) that the Eighth Amendment requires comparative proportionality, or (2) that a rule of consistency applies regarding death-specification verdicts among separately tried coconspira-tors. These premises, however, have been disclaimed both by this court and by the Supreme Court.

Eighth Amendment proportionality, as defined by the Supreme Court, refers “to an abstract evaluation of the appropriateness of a sentence for a particular crime.” Pulley v. Harris, 465 U.S. 37, 42-43, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) (holding that the petitioner was not constitutionally entitled to a proportionality review that would “compare Harris’s sentence with the sentences imposed in similar capital cases”). Proportionality as defined by the Supreme Court evaluates a particular defendant’s culpability for his crime in relation to the punishment that he has received. See, e,g., Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (reversing the death sentence of a mentally retarded .defendant); Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (reversing the death sentence of a defendant who did not himself take life, attempt to take life, or intend to take life); Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (reversing the death sentence of a defendant for the rape of an adult woman that did not result in her death). In each of these cases, the Supreme Court struck down a death sentence not because it was disproportionate in comparison to sentences received by other, similarly situated defendants, but because of what the Court deemed to be the inappropriateness of the sentence in relation to the particular characteristics of the crime and the criminal at issue. These cases are of no help to Getsy, a competent adult who personally and intentionally committed aggravated murder.

Unlike this absolute or individualized proportionality, Getsy’s proportionality argument rests on a claim that his death sentence is disproportionate only by comparison to Santine’s life senténee. In Pulley, the Supreme Court considered the precise argument asserted by Getsy-that the Constitution demands a comparative proportionality review that “purports to inquire ... whether . the penalty is ... unacceptable in a particular- case because [it is] disproportionate to the punishment imposed on others convicted of the same crime.” Pulley, 465 U.S. at 44, 104 S.Ct. 871. The Court squarely rejected this argument as contrary to its holdings in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). Pulley, 465 U.S. at 50-51, 104 S.Ct. 871. Three years later, the Court reaffirmed Pulley’s holding in McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). In that case, the Court expressly held that a defendant could not “prove a constitutional violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty.” McCleskey, 481 U.S. at 306-07, 107 S.Ct. 1756 (emphasis in original).

Our sister circuits have also recognized this well-established principle. See, e.g., Beardslee v. Woodford, 358 F.3d 560, 579-81 (9th Cir.2004) (rejecting the argument that “different sentences for equally culpable co-defendants violate the prohibition against arbitrary imposition of the death penalty in Furman,” and concluding that no constitutional error arose from the trial court’s refusal to allow the codefendants’ sentences into evidence); Bush v. Singletary, 99 F.3d 373, 375 (11th Cir.1996) (per curiam) (holding that no federal constitutional claim arose by reason of the fact that the defendant’s death sentence was disproportionate to that of his codefendant, whose death sentence had been vacated on appeal); Hatch v. Oklahoma, 58 F.3d 1447, 1466 (10th Cir.1995) (rejecting the defendant’s claim that the Constitution required “a proportionality review of his sentence relative only to his codefendant”), overruled in part on other grounds by Daniels v. United States, 254 F.3d 1180, 1188 n. 1 (10th Cir.2001); Russell v. Collins, 998 F.2d 1287, 1294 (5th Cir.1993) (denying relief to a habeas petitioner who argued that his death sentence was disproportionate to that of a codefendant who had pled guilty and been sentenced to 60 years in prison).

By statutorily incorporating a form of comparative proportionality review that compares a defendant’s death sentence to others who have also received a sentence of death, Ohio’s death penalty regime actually adds an additional safeguard beyond the requirements of the Eighth Amendment. See Steffen, 509 N.E.2d at 386. This additional form of review excludes from the precedents used for comparison all cases, like Santine’s, where the sentence received was other than death. Id.

In an unbroken line of precedent, this court has upheld challenges to Ohio’s limited comparative-proportionality review. “Since proportionality review is not required by the Constitution, states have great latitude in defining the pool of cases used for comparison”; therefore “limiting proportionality review to other cases already decided by the reviewing court in which the death penalty has been imposed” falls within this wide latitude. Williams v. Bagley, 380 F.3d 932, 962-63 (6th Cir.2004) (citing seven prior Sixth Circuit cases that have upheld Ohio’s limited proportionality review against constitutional challenges).

Getsy attempts to distinguish this longstanding proposition that Ohio need not have even considered the very ground upon which his constitutional claim is based — that a similarly situated defendant received a life sentence — by narrowing his argument. He contends that, although Ohio need not systematically engage in comparative proportionality review as a general matter, its failure to do so in this case, where the mastermind of the plot was acquitted of all capital specifications, gives rise to a constitutional violation. This amounts to a thinly veiled argument that consistent capital-specification verdicts among separately tried coconspira-tors (in this case, participants in a murder-for-hire scheme) are required.

In the absence of case law for this specific proposition, Getsy asserts that Furman’s broad prohibition against arbitrary and capricious death sentences somehow dictates the further leap to a consistency principle in capital cases. Getsy’s counsel properly conceded at oral argument that the Supreme Court has never held that the Eighth Amendment requires such a rule of consistency. To the contrary, the Supreme Court has explicitly rejected the common-law rule of consistency in other contexts. See, e.g., United States v. Powell, 469 U.S. 57, 58, 105 S.Ct. 471, 83 (1984) (reaffirming the holding in Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), that “a criminal defendant convicted by a jury on one count could not attack that conviction because it was inconsistent with the jury’s verdict of acquittal on another count”). Nearly all courts to have addressed the issue since Powell — including our own — have concluded that the rule of consistency regarding verdicts even in a single trial is no longer good law. See United States v. Crayton, 357 F.3d 560, 565-66 (6th Cir.2004) (explaining that “the acquittal of all but one co-conspirator during the same trial does not necessarily indicate that the jury found no agreement to act,” and collecting cases from eight other circuits).

Moreover, we have long held that the common-law rule of consistency has no application to conflicting verdicts returned by different juries in separate trials. See United States v. Newton, 389 F.3d 631, 636 (6th Cir.2004) (noting that the rule of consistency “was not applied if coconspirators were separately tried”), vacated in part on other grounds, 546 U.S. 803, 126 S.Ct. 280, 163 L.Ed.2d 35 (2005); United States v. Sachs, 801 F.2d 839, 845 (6th Cir.1986) (“[I]f coconspirators are tried separately, the acquittal of all other coconspirators does not mandate acquittal as to the remaining conspirator.... In other words, it is not necessarily inconsistent for two juries to reach differing results.”); see also Cortis v. Kenney, 995 F.2d 838, 840 (8th Cir.1993) (same); United States v. Lewis, 716 F.2d 16, 22 (D.C.Cir.1983) (same); United States v. Sangmeister, 685 F.2d 1124, 1126-27 (9th Cir.1982) (same); United States v. Espinosa-Cerpa, 630 F.2d 328, 333 (5th Cir.1980) (same). This well-established precedent squarely precludes the old common-law rule from applying under the circumstances of this case.

Getsy simply had no constitutional guarantee that his jury would reach the same results as prior or future juries dealing with similar facts, irrespective of the offense with which he was charged. Criminal defendants are instead protected from irrational convictions by the due process requirement that a conviction must be supported by sufficient evidence. Powell, 469 U.S. at 67, 105 S.Ct. 471 (“[A] criminal defendant already is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts. We do not believe that further safeguards against jury irrationality are necessary.”); see also Espinosa-Cerpa, 630 F.2d. at 332 n. 5 (explaining the ancient origin of the English common-law rule of consistency and “its inappropriateness to a modern American criminal system in which all verdicts obviously are, and always have been, subject to independent review for evidentiary support”). Thus, the constitutionality of Getsy’s murder-for-hire conviction turns not on any fortuity regarding when he was tried or with whom, nor on the caprice permissible in another jury’s decision to acquit on similar facts, but rather on the sufficiency of the evidence presented at his own trial.

Only where a court declares that the evidence is legally insufficient to support the conspiracy conviction of one defendant must the conviction of the sole coconspirator also be voided. Morrison v. California, 291 U.S. 82, 93, 54 S.Ct. 281, 78 L.Ed. 664 (1934) (reversing two defendants’ joint conspiracy convictions where due process precluded the state’s reliance on a legal presumption to establish an element of the conspiracy). We pause to emphasize that, contrary to the view of the dissent, “[a] court’s determination that there is insufficient evidence to convict cannot be equated with a jury’s determina tion that a defendant, for whatever reason, should be acquitted.” Crayton, 357 F.3d at 566. Apparently recognizing this fundamental distinction, Getsy himself has never argued that Morrison applies to his case, even in the wake of the original-panel majority’s unwarranted reliance on that decision. Nevertheless, the dissent presses on with this argument, overlooking the critical distinction between a determination made by a court as a matter of law — with which Morrison dealt — and a jury verdict. (All discussion in this opinion of the dissent or the dissenting opinion refers to the lead dissent authored by Judge Merritt.)

Santine’s case was allowed to go to a jury, and that jury ultimately acquitted him of the murder-for-hire specification. But the very fact that the issue was submitted to a jury indicates that the evidence against him was not so deficient that the trial court could decide the question as a matter of law. Furthermore, jury verdicts differ intrinsically from decisions made by a court. See Crayton, 357 F.3d at 566; see also Powell, 469 U.S. at 66, 105 S.Ct. 471 (noting, in the context of inconsistent verdicts in a single trial, that “[t]he fact that the inconsistency may be the result of lenity, coupled with the Government’s inability to invoke review, suggests that inconsistent verdicts should not be reviewable”). Although the dissent points out that the Supreme Court has “never retracted or narrowed” the holding in Morrison, neither has the Court ever expanded it to require the reversal of one conspirator’s conviction or sentence in light of a cocon-spirator’s acquittal by a separate jury. Certainly Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), in which the Supreme Court reversed the death sentence of a defendant on the ground that he did not personally kill or intend to kill anyone, was not such a case.

. We also disagree with the dissent’s view that considerations of consistency, even if relevant, would require “Getsy’s death verdict [to] be set aside.” Dissenting Op. at 325. Apart- from the murder-for-hire capital specification,. Getsy was also convicted of two other capital specifications — felony murder and attempted multiple murders—that do not necessarily conflict with the verdicts from Santine’s trial. Getsy would therefore be entitled, at most, to a new penalty-phase hearing, not an outright voiding of his death sentence.

Ultimately, the question before us is whether the determination of the Ohio Supreme Court that Getsy’s death sentence was not arbitrary or disproportionate was contrary to, or an unreasonable application of, clearly established federal law. As the above analysis demonstrates, clearly established federal law lends no support to Getsy’s claim, with the relevant precedent actually pointing the other way. To grant habeas relief despite such an obvious void of clearly established authority contravening the state court’s decision would both .violate AEDPA and amount to the retroactive application of a new constitutional rule of criminal procedure in violation of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (barring, with exceptions inapplicable here, the retroactive application of a new rule of constitutional law in a collateral proceeding). We therefore decline to adopt Get-sy’s proportionality argument.

The dissent’s references to Aristotle, Sir Francis Bacon, Sir Edward Coke, and English cases beginning in the year 1599 strike us as quite scholarly, even if only marginally relevant. Obviously the controlling law is that of the United States Supreme Court, not the King’s Bench. What the dissent’s historical exposition fails to cite is even a single instance in which the Supreme Court or any federal court has ever reversed one defendant’s sentence or conviction based on another defendant’s later acquittal by a separate jury. The dissent does not, because it cannot, explain how such a supposedly well-established rule has remained hidden within this country’s federal jurisprudence for so long a time.

This is not to say that the incongruous results from the separate trials of Getsy and Santine are not a matter of concern. We share that concern, recognizing at the same time that reasonable people can disagree over the relative moral turpitude of the instigator of an assassination on the one hand and the killer hired to carry out the violent act on the other. Nevertheless, we are not empowered to answer this philosophical question by bypassing the limitations that both Congress and the Supreme Court have placed upon our power to grant relief under the circumstances of this case.

Perhaps some day the Supreme Court will hold that a comparison between the culpability of a hired killer and that of his instigator is constitutionally required, and that inconsistent verdicts arising from their separate trials are unconstitutional. But this is not the law of the land today, and was obviously not the “clearly established law” at the time that the Ohio Supreme Court affirmed Getsy’s conviction and sentence in 1999. For this reason, as well as the others set forth above, we do not believe that the judgment of the Ohio Supreme Court on the issue of proportionality is contrary to or an unreasonable application of clearly established federal law as determined by the United States Supreme Court.

C. Judicial bias

As a second ground for habeas relief, Getsy asserts that his right to a fair trial was violated because Judge W. Wyatt McKay, the Ohio judge who presided over Getsy’s trial, exhibited, bias. Getsy’s claim arises from events surrounding a picnic that took place in August of 1996, just after Getsy’s trial had begun. The picnic was an annual event hosted by the Trumbull County judges. That year it was held at a home belonging to the mother of Trumbull County Court Judge Ronald Rice. Judge Rice’s wife, Cynthia Rice, was one of the two prosecuting attorneys trying Getsy’s case. Both Judge Rice and Cynthia Rice attended the party, as did Judge McKay and many other guests. While driving'home from the picnic, Judge McKay was involved in a single-car accident and was ultimately charged .with driving under the influence of alcohol (DUI). Judge McKay arrived late to court the next day wearing sunglasses and appearing to have bruises on his face, but Getsy’s trial proceeded.

Upon learning of the incident through the media, Getsy filed a motion for a mistrial and for the disqualification of Judge McKay to try his case. He also filed an Affidavit of Disqualification against Judge McKay in the Ohio Supreme Court pursuant to Ohio Rev.Code Ann. § 2701.03. Chief Justice Moyer of the Ohio Supreme Court denied Getsy’s motion on the ground that the “mere fact that a judge and an attorney attend the same social event does not mandate the judge’s disqualification from pending cases involving that attorney.” In re Disqualification of McKay, 77 Ohio St.3d 1249, 674 N.E.2d 359 (1996). Citing an affidavit submitted by Judge McKay, Chief Justice Moyer also noted that any contact between the judge and the, assistant prosecutor consisted of nothing more than the “passing of simple social amenities.” Id.

Following the denial of Getsy’s Affidavit of Disqualification by the Ohio Supreme Court, Judge McKay brought in Judge John M. Stuard, a fellow Trumbull County-judge with no connection to the case, to voir dire the jury regarding the DUI incident. This process revealed that only two jurors were aware of the incident, and both averred that it would not affect their ability to be fair and impartial. Judge McKay subsequently denied Getsy’s motion for a mistrial and for disqualification, and denied Getsy’s request for an eviden-tiary hearing on the matter. On direct review, the Ohio Supreme Court relied on Chief Justice Moyer’s denial of Getsy’s Affidavit of Disqualification in ruling against his judicial-bias argument. Getsy, 702 N.E.2d at 876.

Judge McKay’s DUI prosecution overlapped with Getsy’s trial. In order to avoid the appearance of impropriety, the Trumbull County Prosecutor’s Office trying Getsy’s case brought in a special prosecutor from neighboring Geauga County to prosecute Judge McKay. Ultimately, Judge McKay pled guilty to the DUI charge and was sentenced on September 5, 1996. Judge McKay’s plea and sentencing thus followed the September 3, 1996 guilty verdict in Getsy’s jury trial} but preceded the jury’s death-sentence recommendation handed down on September 10, 1996 and Judge McKay’s imposition of the death sentence on September 12,1996.

Getsy’s primary argument is that he is entitled to an evidentiary hearing to develop facts relevant to his judicial-bias claim. The district court denied Get-sy’s request for such a hearing. We will reverse a district court’s denial of an evi-dentiary hearing only if the court abused its discretion. Abdus-Samad v. Bell, 420 F.3d 614, 626 (6th Cir.2005) (reciting that standard of review in affirming the denial of an evidentiary hearing). A district court abuses its discretion where it “applies the incorrect legal standard, misapplies the correct legal standard, or relies upon clearly erroneous findings of fact.” United States v. Martinez, 430 F.3d 317, 326 (6th Cir.2005) (quotation marks omitted).

Section 2254(e)(2) sets forth certain preconditions to obtaining an eviden-tiary hearing in a habeas proceeding where a petitioner has “failed to develop the factual basis of a claim in State court proceedings.” The Supreme Court has held that “failed” within the meaning of § 2254(e)(2) refers to “a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Here, Getsy sought to develop evidence regarding his judicial-bias claim both at trial and in his postconviction proceedings in state court. He has thus demonstrated diligence in accordance with § 2254(e)(2). See id. at 437, 120 S.Ct. 1479 (“Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentia-ry hearing in state court in the manner prescribed by state law.”).

Although Getsy thus overcomes the initial statutory hurdle to obtaining a hearing, “the fact that [a petitioner] is not disqualified from receiving an evidentiary hearing under § 2254(e)(2) does not entitle him to one.” Bowling v. Parker, 344 F.3d 487, 512 (6th Cir.2003). The Supreme Court recently explained that, “[i]n deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition’s factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, — U.S. -, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007); see also Bowling, 344 F.3d at 512 (determining that the district court’s denial of an evidentiary hearing did not amount to an abuse of discretion after examining the following factors: whether the petitioner “alleges sufficient grounds for release,” whether “relevant facts are in dispute,” and whether the “state courts ... h[e]ld a full and fair evidentiary hearing”). Furthermore, “[b]ecause the deferential standards prescribed by § 2254 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an eviden-tiary hearing is appropriate.” Schriro, 127 S.Ct. at 1940.

We must therefore determine, as a threshold matter, whether Getsy alleges sufficient grounds for relief under AED-PA’s deferential standard. Id. Getsy’s judicial-bias argument focuses on two different elements: (1) the allegedly improper ex parte contact between Judge McKay and assistant prosecutor Rice at the picnic, and (2) the potential conflict of interest arising from Judge McKay’s own pending prosecution. Upon examination, we conclude that neither of these arguments demonstrates that the district court abused its discretion in denying Getsy’s request for a hearing.

“[T]he floor established by the Due Process Clause clearly requires a fair trial in a fair tribunal, before a judge with no actual bias against the defendant or interest in the outcome of his particular case.” Bracy v. Gramley, 520 U.S. 899, 904-05, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997) (emphasis added) (citation and quotation marks omitted). Under this standard, “[o]nly in the most extreme of cases would disqualification on the basis of bias and prejudice be constitutionally required.” Williams v. Anderson, 460 F.3d 789, 814 (6th Cir.2006) (brackets omitted) (quoting Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986)). Our judicial-bias inquiry is also informed by the Supreme Court’s analysis of the federal statutory-recusal standard in Liteky v. United States, 510 U.S. 540, 552, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994), in which the Court explained that “the pejorative connotation of the terms ‘bias’ and ‘prejudice’ demands that they be applied only to judicial predispositions that go beyond what - is normal and acceptable.”

Getsy’s first claim essentially amounts to an observation that Judge McKay attended the same annual judicial picnic that assistant prosecutor Rice and many others attended. Based on this, Getsy speculates that Judge McKay and Rice might have interacted to an unknown extent. As this court has previously observed, however, “ex parte contact does not, in itself, evidence any kind of bias.” Alley v. Bell, 307 F.3d 380, 388 (6th Cir.2002) (noting that the petitioner had not even “come close” to stating a judicial-bias claim where he alleged that the trial judge answered jurors’ questions in the jury room during deliberations and later stopped by a picnic that the jurors were having on a weekend to say hello).

The Supreme Court reaffirmed in Bracy that courts ordinarily “presume that public officials have properly discharged their duties.” 520 U.S. at 909, 117 S.Ct. 1793 (quotation marks omitted). Nonetheless, the Court granted an evidentiary hearing in that case in part because the petitioner had successfully rebutted the presumption by showing that the trial judge was “thoroughly steeped in corruption.” Id. This corruption was evidenced by the judge’s criminal conviction for accepting bribes in return for fixing cases. Id.

Getsy, by contrast, points' to no events, either intrinsic or extrinsic to the proceedings, that evidence corruption or actual bias on the part of Judge McKay. Although Getsy suggests that Judge McKay might have been lying in his affida vit when he averred that he exchanged no more than social pleasantries with Rice at the picnic, Getsy offers nothing beyond such conjecture. We conclude that the district court did not abuse its discretion in denying Getsy a forum to question attendees of a picnic that occurred over 10 years ago in order to explore his unsupported speculation of improper communications between Judge McKay and Rice. See Bracy, 520 U.S. at 909, 117 S.Ct. 1793 (noting that, had the petitioner not overcome the presumption of propriety, the Court “might well [have] agree[d]” that his theory of bias was “too speculative to warrant discovery”); Murphy v. Johnson, 205 F.3d 809, 816 (5th Cir.2000) (affirming the district court’s denial of an evidentiary hearing regarding the petitioner’s allegations of a secret deal between the prosecutor and a trial witness where such a hearing would have been “tantamount to an impermissible fishing expedition”).

Getsy’s contention that the pending criminal charges against Judge McKay might have impermissibly biased the judge similarly fails to assert a valid ground for relief. His primary argument is that Judge McKay’s prosecution was conducted by “the same prosecuting authority” that prosecuted Getsy. In fact, however, a special prosecutor from neighboring Geau-ga County was brought in to conduct Judge McKay’s criminal proceedings. This distinguishes the cases cited by Getsy for the proposition that an attorney who is himself prosecuted by the same office that is prosecuting his client might be laboring under a conflict of interest. See, e.g., Thompkins v. Cohen, 965 F.2d 330, 332-33 (7th Cir.1992) (noting that the prosecution of an attorney by the same office that is prosecuting his client might give rise to a conflict, but finding that no constitutional violation had occurred in relation to the lawyer’s representation in that case).

Again, Getsy points to nothing that suggests actual bias on the part of Judge McKay. The remote possibility that currying favor with Getsy’s prosecutor would somehow help the judge in dealing with the special prosecutor in his own case does not present a ground that a reasonable observer would believe improperly influenced Judge McKay’s decisions in Getsy’s trial. Williams, 460 F.3d at 813 (noting that due process “prohibits a defendant from being tried before a judge whose ‘substantial’ and ‘direct’ interests may be furthered by the outcome of the trial”). The only specific example Getsy cites of a trial decision allegedly influenced by bias is Judge McKay’s decision to accept the jury’s recommendation and impose the death sentence. But the jury convicted Getsy of three capital specifications, any one of which could legally have supported the sentence imposed. Moreover, the record reflects that Judge McKay accepted the jury’s recommendation and imposed the death sentence after his own plea and sentencing for the DUI charges were completed. Even under Get-sy’s conflicLof-interest theory, therefore, this decision would have been untainted.

We recognize that Judge McKay’s conduct in becoming intoxicated at a picnic attended by assistant prosecutor Rice and then driving while impaired exhibited poor decisionmaking. These actions, however, are distinct in character from misdeeds such as accepting bribes to fix cases that warranted an evidentiary hearing in Bra-cy. Because Getsy’s allegations of judicial bias are insufficient to support a claim for habeas relief, we conclude that the district court did not abuse its discretion in denying his request for an evidentiary hearing. For the same reasons, we conclude that the Ohio Supreme Court’s denial on the merits of Getsy’s judicial-bias claim was neither contrary to nor an unreasonable application of clearly established federal law.

D. Ineffective assistance of counsel during the penalty phase

Getsy’s third claim asserts that he received the ineffective assistance of counsel during the penalty phase of his trial. On direct review, the Ohio Court of Appeals and the Ohio Supreme Court determined that this claim lacked merit. The district court on habeas review agreed, and denied Getsy’s petition regarding this claim. This issue was not reached by the original panel of this court in light of its grant of habeas relief on the proportionality issue.

We note at the outset that the extensive presentation of mitigating evidence put on by Getsy’s counsel during the penalty phase demonstrated substantial investigation and preparation. Fourteen witnesses were called to testify on Getsy’s behalf, including his grandfather, aunt, uncle, pastor, former wrestling coach, ex-girlfriend, and ex-girlfriend’s father. Various family members and legal representatives of Get-sy’s codefendants also testified on Getsy’s behalf. In addition to these lay witnesses, Getsy’s counsel procured the services of Dr. James Eisenberg, a forensic psychologist, and called him to testify regarding Getsy’s mental health.

Getsy must show, in order to demonstrate ineffective assistance, both that (1) his counsel’s performance was deficient, and (2) the deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish 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, 104 S.Ct. 2052. Despite his counsel’s extensive mitigation presentation, Getsy points to two alleged deficiencies that he claims gave rise to constitutional violations. He first argues that counsel did not properly investigate his background or help prepare him to give his unsworn statement before the jury. The gist of this argument is that a more thorough investigation and. better legal guidance in relation to his unsworn statement to the jury would have permitted Getsy to “corroborate[ ]” the testimony presented by other witnesses regarding his fear of Santine and his troubled childhood. He asserts that, with better preparation, he would have been able to present these considerations in a “more sympathetic and compelling manner” than the other witnesses.

The problem with this argument is that nearly all of the mitigating evidence that Getsy now asserts that he would have addressed in his unsworn statement would have been simply cumulative to the evidence actually presented to the jury through numerous other sources. As this court has explained, “the failure to present additional mitigating evidence that is ‘merely cumulative’ of that already presented does not rise to the level of a constitutional violation.” Broom v. Mitchell, 441 F.3d 392, 410 (6th Cir.2006). Instead, “in order to establish prejudice, the new evidence that a habeas petitioner presents must differ in a substantial way— in strength and subject matter — from the evidence actually presented at sentencing.” Hill v. Mitchell, 400 F.3d 308, 318-19 (6th Cir.2005) (collecting cases and holding that counsel’s hiring of a mitigation psychologist the day before the penalty phase began did not result in prejudice, in part because the petitioner could not show how additional time would have resulted in materially different testimony).

Several witnesses, including Getsy’s grandfather, aunt, and uncle, attested to Getsy’s difficult upbringing and abusive family circumstances. In addition, attorneys and relatives of Getsy’s codefendants testified regarding the friendships that existed among the codefendants, their relationship with Santine, and the lesser sentences that they received. Moreover, Getsy himself explained in his unsworn statement to the jury how he believed that his group of friends had come under Santine’s influence, how his own fear of Santine developed, and how he had allegedly committed his crimes under duress.

Getsy relies in particular on an affidavit that he submitted during his postconviction proceedings in which he asserted that, with effective assistance, he would have been able to expand upon certain specific topics in his unsworn statement. Close examination reveals, however, that the topics asserted were either already thoroughly addressed by Getsy and the other mitigation witnesses, or simply would have been immaterial. For example, Getsy argues that three “critical events” in his life were never brought to the jury’s attention: (1) at the age of five, Getsy saw a window blown out by gunfire in the home of his stepfather, Jim Thrasher, and that Getsy was handed a shotgun during the incident, (2) Getsy had been around guns his entire life and “became obsessed with guns,” and (3) he “spent a great deal of time in the woods.” But Getsy’s aunt in fact testified to the shooting incident at Thrasher’s home and to the fact that Getsy’s adoptive father, Bill Getsy, was himself “obsessed with guns” and introduced Getsy to guns at a young age.

Moreover, in comparison to other cases granting habeas relief for ineffective assistance of counsel during the penalty phase, the supposed revelations cited by Getsy concerning his background fail to meet the high bar for demonstrating a constitutional violation. See, e.g., Wiggins v. Smith, 539 U.S. 510, 515-17, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (holding that ineffective assistance occurred where counsel introduced “no evidence of [the defendant’s] life history” despite existing evidence of brutal childhood abuse); Dickerson v. Bagley, 453 F.3d 690, 698-99 (6th Cir.2006) (holding that counsel’s failure to present mitigation evidence regarding the defendant’s borderline mental retardation constituted prejudice).

Getsy’s second ineffective-assistance argument addresses his counsel’s alleged failure to adequately prepare and present Dr. Eisenberg’s expert testimony. Prior to trial, Dr. Eisenberg met with Getsy on five different occasions for a total of 12 to 13 hours. In addition, he reviewed Getsy’s school records, the various pieces of evidence used at trial, and conducted interviews with many of Getsy’s friends and family members.

In support of his ineffective-assistance argument regarding Dr. Eisenberg’s expert testimony, Getsy relies on an affidavit submitted by Dr. Eisenberg in which the latter explained that “I do not believe that I was able to communicate the [mitigatory] information that I possessed to the jury due to the lack of time defense counsel spent with me regarding my testimony.” Dr. Eisenberg in particular claims that he “was not able to discuss the issue of obedience to authority” which “helped to explain why the defendants were unable to resist [Santine’s] authoritative pronouncement to kill Chuckie Serafino.”

A review of Dr. Eisenberg’s testimony, however, demonstrates that he extensively discussed the influence that Santine exerted over Getsy and the other codefendants, as well as. the duress which he opined drove Getsy to kill. When asked to explain why he believed Getsy committed the crimes at issue, Dr. Eisenberg responded as follows:

A. ... I think the inexperience on Jason’s part is another factor and something I alluded to in my report is his obedience to authority. I think Jason believed that John San-tine had the authority to order this.

Q. It is your opinion that he was intimidated by Mr. Santine?

A. Yes.

Q. In what ways is Jason’s case different from other death penalty defendants that you have interviewed, sir?

A. ... The dynamics of these three boys, all relatively young, certainly not much life experience amongst these three boys, and four if you include Mike Dripps. I think the intimidation factor from John San-tine, I don’t think I’ve ever done a death penalty case quite as remarkably intimidating as this, with the exception of some cults that I’ve worked with.

The relationships among Getsy, Hudach, and McNulty, as well as their relationship with Santine, were, in fact, central themes of Dr. Eisenberg’s testimony. Dr. Eisen-berg also discussed in detail Getsy’s troubled childhood and its effect on his mental state. Moreover, Getsy’s counsel introduced Dr. Eisenberg’s written report into evidence, which contained an entire section titled “Obedience to Authority” that explained the psychological basis for Getsy’s obedience to Santine’s authority.

Getsy’s conclusory assertions that his trial counsel failed to conduct a reasonable investigation and failed to assist Getsy or Dr. Eisenberg with their testimonial presentations ultimately amount to very little. He cites nothing outside of what the jury already heard in various forms through the 14 mitigation witnesses presented. See Hill, 400 F.3d at 318-19. We therefore conclude that the Ohio Supreme Court’s denial of Getsy’s ineffective-assistance-of-counsel claim was not contrary to or an unreasonable application of clearly established federal law.

E. Other issues

Both the district court and the original panel of this court denied Getsy relief based on his claims that (1) the introduction of his videotaped confession at trial was improper, (2) his jury was not fair and impartial, and (3) he was selectively prosecuted. We agree with the original panel’s disposition of these issues and therefore reinstate the portions of the original decision addressing them. Getsy, 456 F.3d at 596-98 (addressing those claims in Parts V.A., B., and C.), vacated; see Rubin v. Schottenstein, Zox & Dunn, 143 F.3d 263, 270 (6th Cir.1998) (reinstating, en banc, a portion of the original panel’s decision).

This leaves two remaining issues raised by Getsy before the original panel that it did not reach: (1) his claim that insufficient evidence supported his conviction on the murder-for-hire aggravating circumstance, and (2) his claim that the cumulative effect of all of the grounds he asserts collectively violated his constitutional rights. We will now address both of those claims. See Wilson v. Beebe, 770 F.2d 578, 590 (6th Cir.1985) (addressing en banc an issue that the parties had raised before the original panel but that the panel had not addressed).

1. Sufficiency of the evidence supporting murder for hire

The Ohio Supreme Court concluded that sufficient evidence supported Get-sy’s conviction on the murder-for-hire aggravating circumstance. Getsy’s habeas petition regarding this claim was denied by the district court. Whether Getsy is enti- tied to habeas relief ultimately depends on whether the Ohio Supreme Court’s denial was based on an unreasonable application of clearly established federal law regarding the sufficiency of the evidence. The applicable standard inquires “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original).

As the Ohio Supreme Court noted, the most compelling evidence that Getsy committed the murder in exchange for compensation comes from Getsy’s own confession:

Q. OK. What was discussed there at the house when you come over between you and Ben Hudach?

A. He said that we had something to do, we had to do.

Q What did he tell you you had to do?

A. Said we had to take out some guy.

Q. Was it Ben that was telling you this, or was it John Santine that was telling you this? Be honest now.

A. It was Ben but it came from John.

Q. He said you guys had to take this guy out?

A. Yes.

Q. So basically John was directing this through Ben?

A. Yes, sir.

Q. Were you guys to receive something for doing this?

A. He mentioned money.

Q. Talk up.

A. Mentioned money.

Q. How much money?

A. I really can’t remember; it was four (4) digits.

Q. Ten Thousand?

A. No.

Q. Five Thousand?

A. Ten, five, somewhere like that.

Q. ... So, you get to the house; Ben starts telling you you guys are going to get paid about $5,000 — each, or $5,000 total?

A. I don’t know.

Q. OK. To do this guy?

A. Yes

Q. Did you get your money?

A. No.

Q. Why not?

A. ‘Cause we were going to get it later. It wasn’t for the money, I was doing it because I was scared.

In addition to Getsy’s confession, Joshua Koch testified that Santine himself specifically discussed compensation with Getsy and his codefendants after the attack was over:

Q. Did [Santine] say anything else?

A. He said how much he was pleased with them and he asked them in the room, “You guys want $10,000, I’ll give you $10,000.” Rick said he just wanted a wedding ring for his girlfriend. John said he would get his girlfriend the biggest f* * *ing diamond ring in the world.

Q. Did Ben indicate what he wanted?

A. Ben jumped forward and said that this was a favor for John Santine, he took care of him.

Q. Did Jason ever say anything?

A. He interrupted and made it clear that he was doing it for money.

Q. And what did he need the money for?

A. Something about his car, he had something that he had to pay for, maybe payments, maybe insurance.

Q. So he told John that night that- he needed the money to help pay for his car?

A. Right.

Koch’s testimony, combined with Getsy’s confession, supports a finding that Santine procured the commission of Serafi-no’s murder in exchange for money, and that Getsy acceded to the arrangement. Getsy’s confession establishes that the offer of money was made prior to and specifically in exchange for the “take out.” Although Getsy asserts that the money played only a small role in the killing, Koch testified to the contrary that Getsy was, in fact, motivated to commit the murder by the offer of money. Compare State v. Yarbrough, 95 Ohio St.3d 227, 767 N.E.2d 216, 240 (2002) (holding that sufficient evidence supported the murder-for-hire conviction of the appellant where a witness both “heard the conversation in which Calvin Davis hired appellant to kill Arnett” and “actually saw McGhee pay his portion in cash”) with State v. Lindsey, 87 Ohio St.3d 479, 721 N.E.2d 995, 1001 (2000) (noting that the trial court had dismissed the murder-for-hire specification where the state had “failed to present any evidence of compensation”).

In response, Getsy contends that “there was substantial evidence demonstrating that Santine threatened and coerced [Get-sy and his codefendants] into the shooting of Chuckie Serafino.” But even if true, this observation simply establishes that Getsy may have been motivated by additional concerns beyond remuneration. A reasonable juror could have decided to credit Koch’s testimony that Getsy “made it clear he was doing it for the money.” “Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis except that of guilt.” United States v. Barnett, 398 F.3d 516, 522 (6th Cir.2005). Similarly, as addressed in Part II.B. above, the fact that a different jury acquitted Santine of the murder-for-hire specification is of no consequence to the question of whether a reasonable juror at Getsy’s trial could have determined otherwise beyond a reasonable doubt. We find no basis to conclude that the Ohio Supreme Court’s denial of Getsy’s sufficiency-of-the-evidence claim was unreasonable.

2. Cumulative error

Getsy’s final claim asserts that, even if none of the trial errors he alleges warrants habeas relief individually, their collective effect violated his constitutional rights. Getsy failed to raise this claim before the state court, but the Warden has not raised the issue of procedural default and has thereby waived it. See Slagle v. Bagley, 457 F.3d 501, 514 (6th Cir.2006) (noting that the defense of procedural default may be waived by failing to assert it). Assuming without deciding that cumulative error can form the basis for § 2254 habeas relief, Getsy is not entitled to such relief in this case. The above analysis demonstrates that Getsy has not shown the existence of any constitutional error at trial. His cumulative-error claim therefore fails because there are simply no errors to cu-mulate. See Baze v. Parker, 371 F.3d 310, 330 (6th Cir.2004) (“Because Baze cannot establish any errors to cumulate and because his theory that errors can be considered in the aggregate depends on non-Supreme Court precedent, this claim is also without merit.”).

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.