Scott v. Mitchell

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 19, 2000
• Docket: 98-4321
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION 52 Scott v. Mitchell Nos. 98-4272/4321 Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0138P (6th Cir.) File Name: 00a0138p.06 III. CONCLUSION Because we conclude that there was no manifest miscarriage of justice in Scott’s trial or sentencing that would UNITED STATES COURT OF APPEALS authorize us to issue a federal writ of habeas corpus countermanding the judgment of the Ohio courts, we FOR THE SIXTH CIRCUIT REVERSE the order of the district court granting Scott’s _________________ petition for a writ of habeas corpus; we AFFIRM the

; judgment of the district court in all other respects.

Petitioner-Appellee/  JAY D. SCOTT,

Cross-Appellant,    Nos. 98-4272/4321

 v. >   Respondent-Appellant/  BETTY MITCHELL, Warden,

Cross-Appellee.   1 Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 95-02037—Kathleen McDonald O’Malley, District Judge. Argued: January 24, 2000 Decided and Filed: April 19, 2000 Before: BOGGS, SILER, and BATCHELDER, Circuit Judges. _________________ COUNSEL ARGUED: Stuart A. Cole, OFFICE OF THE ATTORNEY GENERAL OF OHIO, CAPITAL CRIMES SECTION, Columbus, Ohio, for Appellant. Timothy F. Sweeney, LAW

1 2 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 51

OFFICE OF TIMOTHY FARRELL SWEENEY, Cleveland, prosecution, any rational trier of fact could have found the Ohio, for Appellee. ON BRIEF: Stuart A. Cole, Jonathan R. essential elements of the crime beyond a reasonable doubt. Fulkerson, OFFICE OF THE ATTORNEY GENERAL OF This familiar standard [views evidence] in the light most OHIO, CAPITAL CRIMES SECTION, Columbus, Ohio, for favorable to the prosecution[, and] thus impinges upon jury Appellant. Timothy F. Sweeney, LAW OFFICE OF discretion only to the extent necessary to guarantee the TIMOTHY FARRELL SWEENEY, Cleveland, Ohio, John S. fundamental protection of due process of law.” Jackson v. Pyle, GOLD, SCHWARTZ & CO., Cleveland, Ohio, for Virginia, 443 U.S. 307, 319 (1979) (internal quotations, Appellee. citations and footnotes omitted). This claim is not procedurally defaulted. _________________ Scott argues that the evidence adduced at trial was OPINION insufficient to prove that he committed or attempted to _________________ commit aggravated robbery. If true, this would invalidate his death sentence, as the only specification that made him death- ALICE M. BATCHELDER, Circuit Judge. Respondent eligible was “caus[ing] the death of another . . . while Betty Mitchell (“the Warden”) appeals the district court’s committing or attempting to commit, or while fleeing grant of a writ of habeas corpus under 28 U.S.C. § 2254 to immediately after committing or attempting to commit Ohio death row inmate Jay D. Scott. The district court Aggravated Robbery.” To support his argument, Scott notes granted the writ on the basis of only one of the grounds raised that nothing was taken from the V&E Delicatessen, that he in his petition, finding all of the other grounds either defaulted entered the store with money, and that O’Neal testified that or meritless. Scott cross-appeals the court’s rejection of his there had been no discussion of robbery before arriving at the remaining arguments. After having the benefit of lengthy oral store. argument, and having given the careful consideration to the record and the parties’ arguments that the gravity of the We agree with the district court and Ohio Supreme Court question before us demands, we are convinced that the district that ample evidence was presented to allow a rational jury to court erred in holding that the ground on which it granted the find Scott guilty of the specification: writ was not procedurally barred. Because we conclude that the district court correctly held that the other grounds raised [U]nder R.C. § 2911.01, [...] an attempt to commit armed by Scott’s petition were either defaulted or without merit, we theft constitutes aggravated robbery. [...] This felonious will reverse the issuance of the writ. objective is evidenced by the secretive manner in which Jones parked his car around the corner after dropping off I. FACTUAL AND PROCEDURAL BACKGROUND [Scott] and O’Neal. Of further relevance is the fact that [Scott] was aware of a pending robbery charge against A. Factual History him upon his apprehension. The facts of the underlying crime are not in significant State v. Scott, 497 N.E.2d at 64. There is no ground here for dispute, except to the extent that Scott challenges the habeas relief. sufficiency of the evidence presented at trial to prove these facts. The following summary is largely taken from the district court’s Order, which in turn quoted it from the opinion of the Ohio Supreme Court. 50 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 3

constitutionally required narrowing process, and so the fact On May 6, 1983, Vinnie Prince, owner and operator of the that the aggravating circumstance duplicated one of the V&E Delicatessen at East 86th Street and Quincy Avenue in elements of the crime does not make this sentence Cleveland, was shot and killed during an attempted robbery constitutionally infirm.” Id. at 246. Similarly, the Ohio of her shop. An autopsy revealed that Prince died from a Legislature “narrow[ed] the class of felony murders subject to gunshot wound to the chest. the death penalty by excluding those who commit [murder in the course of an] arson, robbery, burglary or escape, unless Octavia Hickman, who lived near the delicatessen, testified they are charged with a different aggravating circumstance.” that on the day of the shooting, while walking back to her State v. Buell, 489 N.E.2d 795, 807 (Ohio 1986); see also home after shopping at the nearby Sav-More Market, she Ohio Rev. Code § 2929.04(A) (1996) (“Imposition of the noticed a greenish-blue Cadillac without a rear license plate death penalty for aggravated murder is precluded, unless one pull up across from her house. She observed two black males or more of the following is specified in the indictment . . . and inside the car, one behind the wheel and the other in the back proved beyond a reasonable doubt:”). Scott fell within the seat. She later observed another black male come over a narrowed category of death-eligible felony murderers because nearby fence and dive through the open window of the he committed or attempted to commit aggravated robbery. Cadillac. The car then drove away. See Ohio Rev. Code § 2929.04(A)(7) (1996). Another witness near the deli when the incident occurred Moreover, even if an overlap were problematic, there is was Clifford Roberson. Roberson was heading toward the none here. Pursuant to Ohio Rev. Code § 2929.04(A)(7), store with a female companion when they heard a shot fired Scott’s indictment for aggravated murder added that “either inside the store. He immediately grabbed his friend and [he] was the principal offender in the commission of the pushed her up against the wall of the building, in an effort to Aggravated Murder or, if not the principal offender, protect her. When he heard a screen door slam, he turned committed the Aggravated Murder with prior calculation or around and saw two black males running from the store. design.” The Ohio Supreme Court has held that this language Roberson testified that the taller man was about 5’11” tall, is distinct from the definition of felony murder, because in wearing “some type of rag around his head,” and holding a addition to causing a death during a felony, the defendant long-barreled pistol. Upon opening the store’s door, must also be proved to have caused the death personally and Roberson observed Prince lying “almost to the door as if she directly10 or in a premeditated manner. See State v. Jenkins, was trying to chase them or something.” Roberson flagged 473 N.E.2d 264, 280 n.17 (Ohio 1984); State v. Barnes, 495 down a nearby police car and informed the officers of the N.E.2d 922, 925 (Ohio 1986) (per curiam). situation. F. Sufficiency of the Evidence Used to Convict Scott Solomon Smith, another witness to this incident, testified that he saw “two men run across the street, and run down to An habeas court reviews claims that the evidence at trial the corner of Mr. Cooper’s house, and turn through the alley, was insufficient for a conviction by asking “whether, after and jump the fence.” He described the assailants as two black viewing the evidence in the light most favorable to the males, one 5’10 ½” tall, the other “a little shorter.” Smith did not observe anything in the fleeing men’s hands. 10 In Ohio, the “principal offender” is the one who actually caused the Sometime after this incident, Detective Robert Moore death. See Byrd, No. 96-3209, slip op. at 5 n.2 (citing State v. Penix, 513 received a telephone call from Ricky Tramble, and arranged N.E.2d 744, 746 (Ohio 1987)). to meet with him. Tramble testified that, at this meeting, he 4 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 49

informed Officer Moore that on the day Prince was killed, definition to not violate due process. We recently did the Tramble was with Edward O’Neal, Michael Streeter, Danny same in Byrd, No. 96-3209, slip op. at 65-66. Scott provides Jones, and Scott; they were all at O’Neal’s girlfriend’s house no reason to ignore this precedent. “to get high.” Tramble said he overheard Scott say, “Well I did what I had to do. She shouldn’t have made me move like E. Alleged Unconstitutionality of Ohio’s Death-Penalty that. F__k it. It’s over with.” Tramble testified that, later Scheme Facially and As Applied that day, Scott told Tramble, “[t]hese niggers don’t know what they’re doing. [T]hey get to crying about this and crying Scott raised before the district court a number of reasons about that. This is what I do.” Scott professed to Tramble why the death penalty in general and in Ohio is that he was “a stick-up man.” Tramble related further that the unconstitutional. He focuses his argument on appeal only on next day O’Neal informed him that Scott and O’Neal were two: that the fact that felony murder is used both as an involved in the V&E Deli incident, including the shooting of element of the offense and a ground for capital sentencing Prince. fails to narrow the class of persons eligible for the death penalty, and that electrocution is cruel and unusual On the basis of this information, the police apprehended punishment. The rest are incorporated by reference in a and arrested Danny Jones and confiscated Jones’s automobile, footnote. The great majority of these incorporated issues, and an older model, blue, turquoise-bottom Cadillac with a white the electrocution issue, were mentioned and rejected top, bearing a thirty-day tag but no license plate. Jones signed summarily in Byrd. See No. 96-3209, slip op. at 66-67. We a typewritten statement stating that he and O’Neal, Streeter, will do the same, for substantially the same reasons expressed and Scott had been driving around looking for a place to rob. in the district court’s Order. Although Byrd also rejected the After selecting the V&E Deli as a target, Scott requested claim that Ohio fails to narrow the class of death-eligible “front money” in order to fabricate a purchase, and asked for convicts, it did not explicitly address Scott’s ground for this someone to go into the store with him. O’Neal finally agreed argument. Hence, it merits brief discussion here. to accompany Scott into the store. At this time, Jones observed that Scott was armed with a .38-caliber pistol that The Warden has not argued that Scott’s argument on the looked like a police revolver, and O’Neal was carrying a .25- overlap of felony murder between the underlying crime and caliber automatic handgun. Jones pulled his car around the aggravating circumstance is procedurally defaulted, and the corner from the V&E Deli, and O’Neal and Scott got out of district court dismissed it on the merits. Even if Scott were the car while Jones and Streeter waited for them. Shortly right that the same act was the basis of his conviction and thereafter, Scott and O’Neal came running through a yard and aggravating circumstance, this alone would not justify habeas climbed over a fence. O’Neal ran to the car and got in and relief. See Lowenfield v. Phelps, 484 U.S. 231, 244-46 Scott dived into the car through a window. Jones was told to (1988). There, the Supreme Court instructed that aggravating “pull off.” Later, Jones asked O’Neal what happened and circumstances are not ends unto themselves, but simply one O’Neal replied “that J.D. [Scott] shot her [...] cause she went means by which a state may perform the narrowing function. for her [gun].” When Jones asked Scott if he had killed her, See id. at 244. Lowenfield upheld the Texas death-penalty Scott replied, “naw she was still standing up when we ran out scheme, in which the narrowing function was performed by the door.” At trial, Jones repudiated the part of his the legislature when it circumscribed the range of offenses typewritten statement in which he acknowledged their intent eligible for the death penalty. See id. at 245-46. “The fact to rob the V&E Deli, contending instead that Scott and that the sentencing jury is also required to find the existence O’Neal had gone into the store to get cold beer. of an aggravating circumstance in addition is no part of the 48 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 5

accomplice instruction that required the jury to look for The police also apprehended O’Neal, who also gave them additional corroboration, just not in the language he proposed. a typewritten statement. O’Neal stated that he, Jones, Streeter There is no error here, much less one justifying a writ. and Scott were driving around in Jones’s Cadillac. They stopped in front of the V&E Deli because Scott told them he 2. Definition of Reasonable Doubt wanted to get some bologna and crackers. O’Neal followed Scott into the store. Scott asked for bologna and crackers and, The trial judge read Ohio’s statutory definition of when the old woman minding the store turned to obtain them, reasonable doubt to the jury, which included the phrase Scott pulled out a pistol. Scott told the woman to “freeze” “firmly convinced,” and added some concluding remarks that and when the woman began to “holler” and “yell,” Scott fired essentially repeated the same language: a single shot at the woman, striking her. O’Neal related that he was momentarily stunned by this occurrence and it was not Now, the Legislature of Ohio has specifically until Scott grabbed him and pulled him out of the store that he established the legal meaning of the term “reasonable began to run. They jumped the fence and ran to the car. doubt,” and I will read that definition to you: O’Neal stated that he did not see the old woman in the store “Reasonable doubt is present when, the jurors, after they reach for a weapon. have carefully considered and compared all evidence, cannot say they are firmly convinced of the truth of the At trial, O’Neal’s testimony differed somewhat from this charge. It is a doubt based upon reason and common written statement in that he testified it was he—rather than sense. Reasonable doubt is not mere possible doubt, Scott—who ordered the bologna and crackers in the store. because everything relating to human affairs or O’Neal further testified that he was unarmed throughout this dependent upon moral evidence is open to some possible ordeal and that it was Michael Streeter who had the .25- or imaginary doubt. caliber weapon in his possession while waiting in the car. “Proof beyond a reasonable doubt is proof of such O’Neal confirmed that he had talked with Tramble about what character that an ordinary person would be willing to rely happened at the V&E Deli. and act upon it in the most important of his affairs.” All of the evidence should be examined carefully and Barbara Campbell, a trace-evidence analyst with the conscientiously by you, and, if after a full and impartial Cuyahoga County Coroner’s Office, testified that the results consideration of all the evidence, you are firmly of a “Walker Nitrate Test” revealed that the muzzle of the gun convinced beyond a reasonable doubt of the truth of the which killed Prince was approximately 12 inches from her charge or charges, then the State has proved its case and body when it was fired. Campbell further testified that a trace you must find the defendant guilty. metal test conducted on the victim’s hands indicated that If you are not firmly convinced of the truth of the Prince did not handle or fire a weapon prior to her death. charge, then the State has not proved its case and you Detective David Hicks, however, testified that Prince had a must find the defendant not guilty. fully loaded .38-caliber revolver on her person when she was found. Scott claims that this definition unconstitutionally conflates the reasonable doubt standard with the less demanding “clear On May 17, 1983, the grand jury returned its indictments. and convincing” standard. Scott was apprehended six months later in Philadelphia by Detective James Svekric of the Cleveland Police Department. The district court correctly relied on Thomas v. Arn, 704 During the trip back to Cleveland, Scott inquired who was F.2d 865, 867-69 (6th Cir. 1983), which held this precise 6 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 47

using his name in connection with a homicide and robbery. defense significant enough to be cognizable on post- Up to that point, the arresting officers had informed Scott conviction review. only that he was wanted in connection with a homicide; they had made no mention that Scott was also charged with Nor did the court err in refusing Scott’s accomplice aggravated robbery. Scott maintained that he had been in instruction. In United States v. Carr, 5 F.3d 986 (6th Cir. Reading, Pennsylvania, when the incident occurred. 1993), an appellant challenged the trial court’s refusal to give anything more than a general instruction on judging witness B. Procedural History credibility. In dismissing the argument, we said Scott and his three accomplices1 were indicted by the The court's instruction adequately informed the jury Cuyahoga County Grand Jury on two counts: (1) aggravated regarding the credibility of witness testimony, and so we robbery in violation of Ohio Rev. Code § 2911.01, and (2) are not troubled simply because the court chose not to aggravated murder in violation of Ohio Rev. Code § 2903.01. explicitly highlight the credibility problems inhering in The grand jury added two specifications to the murder count: accomplice testimony. The instructions alerted the jury (1) a death-penalty specification for violation of Ohio Rev. to the various considerations that it should take into Code § 2929.04(A)(7),2 and (2) a firearm specification for account in weighing testimony, and it had an ample basis violating Ohio Rev. Code § 2941.141. for rejecting the testimony of the accomplice witnesses if it had chosen to do so. In short, because the instructions Scott pled not guilty, proceeded to trial, and was convicted. given by the court substantially covered the same The trial court then held a sentencing hearing as prescribed by material as the instruction requested by the defendant, Ohio Rev. Code §§ 2929.022(A) and 2929.03, and the jury there was no reversible error. recommended the death penalty. The trial judge adopted the recommendation and sentenced Scott to death for his murder Id. at 992. We have since followed Carr in not requiring conviction. Scott was also sentenced to 7-25 years of accomplice instructions as a general matter, a rule that is imprisonment for his aggravated robbery conviction and 3 significantly less favorable to defendants than the approaches years of imprisonment for the firearm specification. of some of our sister circuits. See, e.g., United States v. Hill, 627 F.2d 1052 (10th Cir.1980) (finding reversible plain error when no accomplice instruction was given and no other 1 evidence corroborated the accomplice testimony); United O’Neal, Jones, and Streeter each pled guilty to robbery offenses and States v. Davis, 439 F.2d 1105 (9th Cir.1971) (same); Tillery received shock probation and/or suspended sentences. v. United States, 411 F.2d 644 (5th Cir.1969) (same); United 2 States v. McCabe, 720 F.2d 951, 956 (7th Cir. 1983) (holding This section provides a death-penalty-qualifying specification if lack of accomplice instruction to be error when corroborating The offense was committed while the offender was committing, evidence was insufficient “to overcome the inherent attempting to commit, or fleeing immediately after committing unreliability of accomplice testimony”); United States v. Lee, or attempting to commit kidnapping, rape, aggravated arson, 506 F.2d 111, 120 (D.C. Cir.1974) (holding failure to give aggravated robbery, or aggravated burglary, and either the instruction harmless because accomplice's testimony was offender was the principal offender in the commission of the "materially corroborated"); United States v. Williams, 463 aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design. F.2d 393, 396 (10th Cir.1972) ("considerable evidence" corroborated the accomplice's testimony). Scott received an Ohio Rev. Code § 2929.04(A)(7) (1996). 46 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 7

an abnormal fear of imprisonment since he was already Scott timely appealed his convictions and death sentence. incarcerated at the time. The Ohio Supreme Court also relied Both were affirmed by the Ohio Court of Appeals and the on Howard in rejecting Scott’s appeal. See State v. Scott, 497 Ohio Supreme Court. The United States Supreme Court N.E.2d 55, 63 (Ohio 1986). We have never directly followed denied Scott a writ of certiorari, though Justices Marshall and or contradicted Howard, although we have acted consistently Brennan filed a dissenting opinion. See Scott v. Ohio, 480 with it by dismissing a claim of error for failure to produce U.S. 923, 923 (1987). any evidence that the witnesses were addicted at trial. See United States v. Freeman, Nos. 91-1011, 91-1012, 1991 WL Scott then secured a stay of execution and petitioned the 203088, at **3 (6th Cir. Oct. 4, 1991) (unpublished). Instead, Cuyahoga County Common Pleas Court for post-conviction in an unpublished opinion, when an appellant challenged the relief pursuant to Ohio Rev. Code § 2953.21. The Warden refusal to give a similar instruction for a witness who was an successfully moved to dismiss, but the Ohio Court of Appeals addict-informer but not addicted at trial, we relied on our reversed the dismissal in part and remanded for a hearing on authority governing addict-informer instructions. See United the issue of whether Scott was denied effective assistance of States v. Anderson, Nos. 97-5352, 97-5382, 1998 WL counsel at the mitigation phase of the sentencing hearing. 833701, at **4 (6th Cir. Nov. 20, 1998). "This court has long Both parties unsuccessfully appealed this ruling to the Ohio recognized the importance of an addict-informant instruction Supreme Court, and the case was returned to the common in appropriate cases." United States v. Brown, 946 F.2d 1191, pleas court for the hearing. At the conclusion of the hearing, 1195 (6th Cir.1991). However, there is no per se rule at which Scott’s family members and trial counsel testified, requiring such instructions to be given in all cases involving the trial court issued findings of fact and conclusions of law addict testimony; instead, "the need for such an instruction to the effect that Scott had not been denied effective depends on the circumstances of each case." Id. (internal assistance in the mitigation phase of his sentencing. quotation omitted). The district court errs by failing to give Specifically, the court found that trial counsel’s testimony a requested instruction only when the requested instruction is was more credible than that of Scott’s family members, that correct, not substantially covered by the actual jury charge, Scott and his family were primarily to blame for their failure and when not giving the instruction would substantially to provide mitigating evidence, and that the “residual doubt” impair defendant's defense. See United States v. Sassak, 881 strategy pursued in the mitigation hearing was in Scott’s best F.2d 276, 279 (6th Cir.1989). interest. Scott unsuccessfully appealed, and was denied a writ of certiorari on the ineffective assistance of counsel issue by We agree with the district court, and adopt the reasoning of the United States Supreme Court. Howard. It is certainly consistent with our handful of unpublished decisions on the issue, none of which has been In addition to these post-conviction proceedings, Scott also receptive to requiring the addict instruction, and it is sensible; pursued post-conviction relief pursuant to State v. Murnahan, there is no reason to believe that Tramble’s former drug use 584 N.E.2d 1204, 1209 (Ohio 1992), which allows appellants impaired his testimony at trial. But Scott’s argument is claiming denial of effective assistance of appellate counsel to lacking even under our prior case law. The requested seek relief by applying for delayed reconsideration in the instruction is correct, as it is remarkably similar to the Sixth Court of Appeals, or by filing a delayed appeal directly with Circuit pattern instruction for addict-informers. But the trial the Ohio Supreme Court. Scott first filed a motion to reopen court’s instruction to consider the witnesses’ motives should his appeal in the Ohio Court of Appeals, which was denied. have been sufficient, and there was no impairment to Scott’s The Ohio Supreme Court affirmed, denied rehearing, and the United States Supreme Court denied certiorari. Scott also 8 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 45

filed a delayed direct appeal with the Ohio Supreme Court, substantial and injurious effect or influence on the verdict, which was refused. and are subject to harmless-error analysis.9 See Gilliam v. Mitchell, 179 F.3d 990, 994-95 (6th Cir. 1999) (citing Brecht The Ohio Supreme Court, on the Warden’s motion, set v. Abrahamson, 507 U.S. 619, 638 (1993)). October 25, 1995, as the date for Scott’s execution. On September 20, 1995, Scott filed a notice of intent to file a Also as with the challenge to the unanimity instruction, the habeas petition with the federal district court. The district State claims that both of these claims are defaulted because court granted an indefinite stay of execution while Scott they were not objected to contemporaneously. Scott has made pursued his federal habeas relief, and appointed Scott’s no response. The district court reached the merits of the first current counsel. instruction challenged here, relating to witness credibility, without discussing its potential default. Regardless of Scott’s petition presented twenty-one grounds for relief, whether this claim was defaulted, it is easily disposed of on divided into three categories: (1) constitutional violations the merits. The court also correctly held the second ground, tainting the entire course of the state court proceedings regarding the definition of reasonable doubt, not to be waived, (Grounds 1-6); (2) constitutional violations prejudicing Scott because the Ohio Supreme Court itself said so in a later during specific stages of the proceedings (Grounds 7-19); and opinion that discussed Scott’s case. See State v. Van Gundy, (3) constitutional violations relating generally to the Ohio 594 N.E.2d 604, 607 (Ohio 1992). death-penalty scheme (Grounds 20-21). Scott requested leave to conduct discovery and an evidentiary hearing, but both 1. Instruction on Credibility of Addicts and Accomplices were denied for failure to show good cause. The court also made clear that because Scott filed his petition before the Tramble admitted being an addict when he gave his effective date of the Anti-Terrorism and Effective Death information to the police, and Jones and O’Neal also testified Penalty Act of 1996 (AEDPA), it would not apply the against Scott as accomplices. Scott proposed specific demanding standards of review mandated by that statute. instructions on the particular unreliability of accomplices, and that the testimony of drug addicts should be “considered with The court heard lengthy oral arguments from both parties great care” because of their constant need of drug money and and received post-hearing briefs on certain issues. On abnormal fear of imprisonment. Instead, the court gave September 30, 1998, the court issued its opinion denying general instructions on the jury’s duty to determine witness habeas relief on all grounds except one: Ground 18, which motivation and credibility, and instructed that accomplice challenged the trial court’s penalty-phase jury instruction3 testimony must be corroborated “by other credible, believable regarding unanimity of the sentencing recommendation. evidence.” Scott was granted a certificate of appealability to cross-appeal the denial of the remaining grounds, and both sides filed The district court, relying on United States v. Howard, 590 timely notices of appeal. F.2d 564, 570 (4th Cir. 1979), found no error in rejecting the addict instruction because there was no evidence that Tramble was still addicted at the time of trial, and could not have had

3 In its Order, the district court felt “compelled to mention” that 9 Cleveland attorneys Timothy F. Sweeney and John S. Pyle, serving Scott cites an Eighth Circuit case for the proposition that Brecht’s pursuant to the Criminal Justice Act, have done an exceptional job harmless-error test does not apply if the state courts did not conduct a defending Scott. They have also performed commendably on appeal. Chapman harmless error test, but Gilliam squarely rejects this contention. 44 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 9

appropriate case could be . . . the result of a tactical, informed Before this court, Scott defends the district court’s decision by counsel, completely consonant with his duties to reasoning that the unanimity instruction could have had the represent the accused effectively”). Without effective impermissible effect of causing one or more jurors to believe research into the available mitigating testimony, of course, it that unanimity was required not only as to the net weight of would be impossible for the lawyers to have made an the mitigating factors versus the aggravating factors, but also informed decision either way, even if residual doubt was a as to the existence of each mitigating factor. The Warden, on viable option in retrospect. If we were to hold Scott’s lawyers the other hand, maintains that Scott’s challenge to this to be ineffective, then, it would have to be on the grounds of instruction is procedurally barred from habeas review for their failure to research mitigating evidence, not their failure failure to lodge a contemporaneous objection to the to present it. Otherwise, there would be merit to the district instruction in the trial court, and that, in any case, the court’s concern in this case that to condone the lawyers’ instruction had no such effect on the finding of mitigating performance would be to create a post-hoc exception for factors. Scott’s cross-appeal further argues that (1) two other faulty lawyering. Regardless, the Constitution guarantees penalty-phase instructions, namely those telling the jury to competent counsel and a fair trial, not perfection. In light of ignore considerations of mercy in reaching its decision and the finding of the state common pleas court’s evidentiary advising that its recommendation of death would not be hearing that the lawyers’ testimony is more credible than that binding on the court, were unconstitutional; (2) Scott was of Scott’s family, and that Scott’s criminal history would have prejudiced by comments made by the trial judge to the jury been known to the attorneys even without further research, we venire regarding media coverage of Prince’s shooting and believe that the decision of Scott’s attorneys to pursue a Scott’s involvement in it; (3) Scott’s trial counsel were residual-doubt strategy in this case was not objectively ineffective in the penalty phase for failing to interview or unreasonable, because it was adequately (if not ideally) present witnesses in mitigation and instead pursuing a informed and was quite arguably the best course of action residual doubt strategy; (4) the cumulative effect of two available. allegedly erroneous jury instructions violated Scott’s due process rights; and (5) Ohio’s death penalty is D. Cumulative Error From Two Allegedly Erroneous unconstitutional on its face and as applied to Scott for a Guilt-Phase Jury Instructions variety of reasons. We will address each of these issues in turn. As noted above, to warrant habeas relief, jury instructions must not only have been erroneous, but also, taken as a whole, II. ANALYSIS so infirm that they rendered the entire trial fundamentally unfair. See Coe, 161 F.3d at 329. This burden is even greater When reviewing a district court’s disposition of a petition than that required to demonstrate plain error on direct appeal. for a writ of habeas corpus filed before AEDPA’s effective See Frady, 456 U.S. at 166; Henderson, 431 U.S. at 154 date, we presume primary, or historical, factual findings by (“The question in such a collateral proceeding is whether the the state courts to be correct, rebuttable only by clear and ailing instruction by itself so infected the entire trial that the convincing evidence under one of the eight conditions listed resulting conviction violates due process, not merely whether in the pre-AEDPA version of 28 U.S.C. § 2254(d)(1-8). See the instruction by itself is undesirable, erroneous, or even Byrd v. Collins, No. 96-3209, slip op. at 35 (6th Cir. Apr. 6, universally condemned” (citations and internal quotations 2000) (citing McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th omitted)). Allegations of “trial error” raised in challenges to Cir. 1996)). We review de novo determinations involving jury instructions are reviewed for whether they had a matters of law or mixed questions of law and fact. See Mapes 10 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 43

v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999). We afford It was their responsibility to present Scott’s defense, not “complete deference to evidence-supported state court Scott’s family’s or even Scott’s. In Glenn v. Tate, 71 F.3d findings of fact. [...] But the more substantive standard by 1204, 1207-08 (6th Cir. 1995), we held lawyers’ conduct to which our de novo review is conducted is the determination be objectively unreasonable when they waited until after the whether the trial errors asserted by the petitioner resulted in verdict to prepare for the sentencing phase, failed to interview a trial so devoid of fairness as to have amounted to a denial of any family members or friends, and conducted no research at the due process guaranteed by the fourteenth amendment.” all into mitigation except to prepare one inadmissible Lundy v. Campbell, 888 F.2d 467, 469 (6th Cir. 1989) (citing videotape. We followed Glenn in Austin v. Bell, 126 F.3d Sumner v. Mata, 455 U.S. 591 (1982) (per curiam)). 843, 848-49 (6th Cir. 1997), to find a lawyer ineffective when he failed to investigate or present any mitigating evidence A. The Trial Court’s Penalty-Phase Jury Instructions despite the availability and willingness of several relatives and friends. We characterized counsel’s performance there as Because the state claimed that nearly half of Scott’s claims, not a “strategic decision, but rather an abdication of including his challenges to the penalty-phase jury instructions, advocacy.” Id. at 849; see also Byrd, No. 96-3209, slip op. at had been procedurally defaulted, the district court began its 63 (following Austin and Glenn)); O’Guinn v. Dutton, 88 legal analysis with a discussion of the law of procedural F.3d 1409, 1424 (en banc) (Merritt, C.J., concurring) (finding default, including a discussion of Wainwright v. Sykes, 433 attorneys’ near-complete failure to investigate or present U.S. 72 (1977), Coleman v. Thompson, 501 U.S. 722 (1991), mitigating evidence, because each attorney thought the other and Maupin v. Smith, 785 F.2d 135 (6th Cir.1986), this was preparing it, to go beyond ineffectiveness into total circuit’s seminal case applying the law of procedural default incompetence). In Mapes, we remanded for a hearing on the in federal habeas cases in which the state argues that an effectiveness of appellate counsel, in part because he failed to habeas claim is barred by the petitioner’s failure to observe a raise the fact that the sentencing phase counsel conducted no state procedural rule. Maupin laid out a 4-part test that, as the4 research into mitigating factors. district court correctly noted, we have consistently applied since its issuance: Scott’s penalty-phase attorneys would certainly have been well-advised to conduct more research into mitigating factors When a state argues that a habeas claim is precluded by than they did. Unlike in Austin and O’Guinn, however, these the petitioner’s failure to observe a state procedural rule, lawyers had a credible reason for not presenting testimony: a desire to keep Scott’s extensive criminal history from the jury. See also Byrd, No. 96-3209, slip op. at 63-64 (same). 4 The state trial and appeals courts found this strategy to be in The Maupin test is essentially a group of enumerated factors that is Scott’s best interest, given his claim of actual innocence identical to the approach subsequently endorsed by Coleman: that the cause and prejudice/actual innocence test is to be applied in all federal throughout trial and sentencing and the magnitude of his habeas cases where the state court decision is based on an independent criminal past. Moreover, both the Ohio and United States and adequate state ground. See Coleman, 501 U.S. at 750. Although we Supreme Courts have endorsed a residual doubt strategy when have remained faithful to the analysis endorsed by Maupin, our more warranted by the circumstances. See Lockhart v. McCree, recent decisions have not always employed a “Maupin test” per se. See, 476 U.S. 162, 181 (1986) (recognizing the strategy as “an e.g., Byrd, No. 96-3209, slip. op. at 53-54 (articulating the factors from Maupin and related cases differently but analogously); Jones v. Toombs, extremely effective argument for defendants in capital cases” 125 F.3d 945, 946 (6th Cir. 1997) (applying the Coleman formulation (citation omitted)); State v. Johnson, 494 N.E.2d 1061, 1065 without mentioning Maupin, although reaching the same result). In this (Ohio 1986) (“omission of [mitigating] evidence in an case, however, we find it useful to follow Maupin’s enumerated factors. 42 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 11

could not come close to rebutting with clear and convincing the federal court must go through a complicated analysis. evidence. Moreover, while acknowledging the questionable First, the court must determine that there is a state amount of research done by counsel, the court decided that procedural rule that is applicable to the petitioner’s claim the second Strickland prong could not be met because Scott and that the petitioner failed to comply with the rule. [...] could not show a “reasonable probability” that the sentence Second, the court must decide whether the state courts would have been different otherwise. Strickland, 466 U.S. at actually enforced the state procedural sanction. [...] 694. The court ended its discussion, however, with a Third, the court must decide whether the state procedural footnote, noting that this too was a close call since one juror forfeiture is an “adequate and independent” state ground might always have been persuaded, and that the question was on which the state can rely to foreclose review of a ultimately mooted by the court’s grant of the writ on another federal constitutional claim. [...] This question generally ground. will involve an examination of the legitimate state interests behind the procedural rule in light of the federal The district court was correct to focus on the second interest in considering federal claims. [Fourth], the Strickland prong. It is clear that, in its words, the “mitigating petitioner must demonstrate under Sykes that there was circumstances Scott wishes his counsel had presented . . . are “cause” for him to not follow the procedural rule and that largely, even overwhelmingly, negated by evidence that his he was actually prejudiced by the alleged constitutional background includes commission of robbery, assault, error. kidnaping, and other violent acts upon innocent citizens,” and that prosecutors would have elicited such information from Id. at 138 (citations omitted). For purposes of the procedural- any family members who testified for Scott. The mitigating default analysis, the district court grouped Scott’s eighteenth evidence would have revealed Scott’s personal loyalty to his ground for relief—the claim that the penalty-phase jury siblings, girlfriend, and children, and an exceedingly violent instruction on unanimity is unconstitutional—with his environment throughout his upbringing. As the district court challenges to two other penalty-phase jury instructions—that said, it is impossible to say for certain that one juror would the jury’s recommendation of death was not binding on the not have been swayed by this evidence, but certainty is not trial court (Ground 14) and that the jury was to disregard required here; we must ask only whether Scott has met his emotions of mercy or sympathy (Ground 16)—because no burden of demonstrating a reasonable probability that this contemporaneous objection to any of the three instructions would happen. None of the proffered mitigating evidence had been raised. The district court noted that Scott had raised reduces Scott’s culpability for the Prince murder or the string these three arguments for the first time on direct appeal. The of violence that preceded it. Scott can only offer a Ohio Court of Appeals noted the default and plain error hypothetical juror, not a reasonable probability, and hence standard of review, but went on to address the merits of the cannot show prejudice. claims. See Scott, 1985 WL 9047 at *8. The Ohio Supreme Court more explicitly relied on the procedural default, but As to the first Strickland prong, were we to reach it, it is not nonetheless allowed for the possibility that Scott could prove clear that the lawyers’ performances fell below the objective plain error. The Ohio Supreme Court conducted a lengthy standard. The state court fact findings that we are bound by review of the record for plain error as to Ground 14, and a indicate that neither Scott nor any proposed witness made any shorter review as to Ground 16. As to the unanimity attempt to assist the attorneys in finding mitigating evidence, instruction claim, however, the Ohio Supreme Court said only and that this made the job more difficult. This difficulty, of this: course, does not excuse a lack of attempt on the lawyers’ part. 12 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 41

Appellant next argues that the requirement of The district court found all but one of the several grounds unanimity in recommending a life sentence denies a for ineffectiveness of his trial counsel that Scott raised before capital defendant his right to a fair trial and freedom from it to be procedurally barred, and Scott does not pursue those cruel and unusual punishment. defaulted allegations on appeal. The sole remaining argument Again, appellant neglected to object to the trial court’s is that Scott’s sentencing-phase counsel were ineffective instruction in this regard and has accordingly waived any because they failed to research possible mitigating factors, objections with regard to this alleged error. State v. and also failed to interview Scott’s several family members Fanning, supra. More importantly, in State v. Jenkins, who often attended the trial. Scott’s attorneys did not present [...], this court ruled that a jury’s recommendation of a any mitigating evidence other than Scott’s own unsworn life sentence under R.C. 2929.03(D)(2) must be statement to the jury.8 They pursued a “residual doubt” unanimous. strategy, in which the defendant appeals to the jury’s lingering doubt regarding the conviction in an attempt to dissuade them State v. Scott, 497 N.E.2d 55, 69 (Ohio 1986). from imposing the death penalty. The state trial court held a post-conviction evidentiary hearing on this issue, and The district court concluded that none of these three claims determined that: (1) trial counsel’s testimony was more had been procedurally defaulted. The court first noted that in reliable than that of the family members; (2) the intransigence examining Scott’s fourteenth and sixteenth grounds and of Scott and his family was responsible for his counsel’s “arguably in examining Scott’s eighteenth ground, as well,” failure to identify and obtain mitigating evidence from the the Ohio Supreme Court had not simply relied on Ohio’s family members; (3) the family members made no attempt to contemporaneous-objection rule, but had conducted a plain- offer assistance until after Scott’s conviction; and (4) had error analysis; hence, the Ohio Supreme Court “did not Scott chosen to have a pre-sentence investigation report wholly overlook Scott’s procedural default.” Relying on an prepared or had the family members testified, the jury would unpublished decision of this circuit, Knuckles v. Rogers, No. have learned of Scott’s extensive criminal history. The court 92-3208, 1993 WL 11874 (6th Cir. Jan 21, 1993) (per also made two other mixed findings of law and fact, namely curiam), the district court further concluded that in any event, that the family’s testimony was unreliable and unhelpful and Ohio’s contemporaneous-objection rule is not an adequate that Scott’s lawyers acted in his best interest. The district and independent state ground on which the state could rely to court appropriately acknowledged its deference to the foreclose review of these claims because that rule is not hearing’s findings on the primary, historical facts, which Scott independent of federal law. 1. The Trial Court’s Penalty-Phase Instruction on Jury 8 Unanimity Scott had the right under Ohio law to testify under oath or make an unsworn statement to the jury, and he chose the latter. Scott used this opportunity to continue to deny his guilt (“I feel insulted, and that’s what With regard to Scott’s challenge to the penalty-phase I wanted to reflect to you. Insult when you charged me.”), and explicitly unanimity instruction—the only ground on which the district told the jury that he was not going to tell them any reasons that they court granted the writ—we hold that the district court erred. should show him mercy since he was not guilty and that was all they It is undisputed here that the first Maupin prong has been needed to know (“I don’t have to sit here and say ‘Give me mercy.’ What established; Scott does not question the applicability of I mean, I don’t want no mercy . . . I don’t care what they say out of they Ohio’s contemporaneous-objection rule and he does not claim [sic] mouths, and I’m telling you, it is me now talking for me . . . . I didn’t care that you found me guilty, but it was up to you. I felt you to have made such an objection. Scott does not address in couldn’t because the truth has got to rise, but . . . you did, and it don’t this appeal the fourth Maupin prong, the cause and prejudice scare me when they say you are going to give me the death penalty.”). 40 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 13

unless there is an “overwhelming probability” that they were test, although the district court did address that issue. Rather, ignored. Richardson v. Marsh, 481 U.S. 200, 208 (1987). Scott focuses on the second and third Maupin prongs, arguing that the Ohio courts did not actually enforce the state Scott’s scenario of jury bias is not nearly tenable enough to contemporaneous-objection rule and that the rule is neither an overcome these presumptions. Scott and Justice Marshall adequate nor an independent state ground. cited Quercia v. United States, 289 U.S. 466 (1933), for the proposition that the judge’s comments warped the jury’s (a). The Second Maupin Prong – Application of the Rule perception beyond all hope of repair. The extremity of that case’s facts, however, provide a perfect foil to demonstrate The determination of whether a state court decision was the mildness of the instant case. In Quercia, the trial judge based on a state procedural rule is a legal question that we instructed the jury that he believed every word the defendant review de novo. See Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. said to be a lie because the defendant had wiped his hands 1991) (per curiam). Scott argued to the district court that by while on the stand. See id. at 468-69. Here, we have only conducting a plain-error review, the Ohio Supreme Court had Scott’s inference that the court’s facially innocuous statement excused the procedural default and hence had not enforced the may have been understood as a “frank, unguarded admission” state procedural sanction. The district court did not entirely of the judge’s opinion, which would then have a prejudicial agree: “It is questionable whether the Ohio Supreme Court effect on a juror’s verdict. All we know for certain is that the truly overlooked Scott’s procedural defaults and examined the court communicated the existence of pretrial publicity, which merits of Scott’s three grounds regarding jury instructions. Patton held not to be an indelible influence on a juror’s mind. [...] A plain error analysis is not tantamount to a review on See also United States v. Peters, 754 F.2d 753, 762-63 (7th the merits, so the Ohio Supreme Court did not wholly Cir. 1985) (recounting several studies demonstrating capital overlook Scott’s procedural default.” jurors’ ability to put media reports out of their minds and vote exclusively on the evidence). This alone does not destroy On appeal, Scott cites the Supreme Court’s holding in fundamental fairness. Harris v. Reed, 489 U.S. 255, 257 (1989), that federal habeas courts are to apply the “plain statement rule” of Michigan v. C. Ineffective Assistance of Trial Counsel During the Long to determine whether a state court decision was based Penalty Phase on a state law ground, and that any ambiguity as to whether the holding was based on or intertwined with federal law We apply to this claim the same de novo standard listed requires the application of the Long rule. Scott urges us to above. For Scott’s counsel to have deprived him of his Sixth find that the Ohio Supreme Court decided his challenge to the Amendment right to effective assistance, the counsel’s jury unanimity instruction on its merits, not on the basis of the performance must have “so undermined the proper procedural bar, citing as evidence the fact that in its three- functioning of the adversarial process that the trial cannot be sentence disposition of this claim, the Ohio Supreme Court relied on as having produced a just result.” Strickland v. began the last sentence with the words “More importantly.” Washington, 466 U.S. 668, 686 (1984). It is Scott’s burden to show his attorneys’ performance fell below an objective Scott’s argument is meritless. The issued addressed in standard of reasonableness and that Scott was thereby Harris, as we explain below in relation to the third Maupin prejudiced. See id. at 687-88. Counsel’s performance is factor, is whether the state court decision actually relies on a strongly presumed to be effective. See id. at 690; Kimmelman state procedural ground that is both adequate and independent v. Morrison, 477 U.S. 365, 381 (1986). from federal law; Harris does not preclude a finding that the state procedural rule was actually enforced where the state 14 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 39

court decision also relies on an alternative ground. Scott’s in response to evidence presented at trial. In this context, we only arguable basis for asserting that the Ohio Supreme Court have said did not enforce the contemporaneous-objection rule is its “More importantly” sentence. The district court viewed this It is the duty of the trial judge to conduct an orderly trial sentence as only “arguably”amounting to a plain error review, with the goal of eliciting the truth and attaining justice and did not accept Scott’s argument that this was the primary between the parties. In charging the jury, the trial judge holding. We conclude that the Ohio Supreme Court’s is not limited to instructions of an abstract sort. It is adversion to Ohio’s substantive law regarding jury unanimity within his province, whenever he thinks it necessary, to with regard to the recommendation of a life sentence was not assist the jury in arriving at a just conclusion by even arguably a plain error review, but was simply a explaining and commenting upon the evidence, by supplement to its holding that Scott had waived any objection drawing their attention to the parts of it which he thinks to the jury instruction by failing to object at the time the important; and he may express his opinion upon the instruction was given. facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination. The (b). The Third Maupin Prong – Adequate and district judge may not assume the role of a witness. He Independent State Ground or she may, however, analyze and dissect the evidence, as long as the district judge does not distort or add to it. Scott claims not only that the Ohio Supreme Court did not When commenting on the evidence, the trial judge must enforce the contemporaneous-objection rule and hold his take great care to avoid undue prejudice of the jury. challenge to the unanimity instruction barred; he claims that because the contemporaneous-objection rule does not United States v. Blakeney, 942 F.2d 1001, 1013 (6th Cir. preclude the state appellate courts from performing a plain- 1991) (citations, quotations and alterations omitted). Hence, error review, the rule itself is dependent on federal law and is the judge did not exceed his authority merely by pointing out therefore not an “independent and adequate state ground” the existence of the article and discussing its contents as a under Maupin. Here the district court agreed. For support, it basis to judge juror impartiality. turned to our unpublished decision in Knuckles v. Rogers, No. 92-3208, 1993 WL 11874, at **2-3 (6th Cir. Jan. 21, 1993) Allegations of jury bias must be viewed with skepticism (per curiam): when the challenged influence occurred before the jurors took their oath to be impartial. Holding that pretrial publicity did [I]t is clear that Ohio has a contemporaneous objection not bias a juror in Patton v. Yount, 467 U.S. 1025, 1036 rule, and that the Ohio courts treat the failure to object to (1984), the Court said that the partiality of a juror “is plainly a claimed error as a procedural default. Ohio R. Crim. P. a question of historical fact: did a juror swear that he could set 52; State v. Williams, 304 N.E.2d 1364 (Ohio 1977). aside any opinion he might hold and decide the case on the Since Knuckles failed to object contemporaneously to the evidence, and should the juror's protestation of impartiality allegedly improper remarks, he violated Ohio's have been believed.” Accordingly, the Court held that such contemporaneous objection rule and committed a a determination by a state court was entitled to a presumption procedural default. However, the procedural default did of correctness on habeas review under 28 U.S.C. § 2254(d). not foreclose all consideration by the Ohio appellate This is especially so in light of the two curative instructions court; the Ohio court examined the record to determine the court gave, which we must presume to have been effective if the allegedly improper remarks were "plain error." 38 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 15

B. The Trial Judge’s Comments to the Jury Venire The basic inquiry in the plain error analysis in Ohio is whether the defendant has been denied a "fair trial." We examine this claim de novo, with deference to facts Whether a person is denied a fair trial is a question to be found in state court, for denial of fundamental fairness. It is resolved by applying principles of federal constitutional not procedurally barred. law. Therefore, we conclude that the Ohio appellate court's decision was not independent of federal law. Scott challenges a remark made by the trial judge which he claims communicated to the jury the court’s belief that Scott (footnote omitted). The district court concluded that “[g]iven participated in the crime. During voir dire, the judge the reasoning in Knuckles, this court must conclude that explained to the jury that the court knew there was notoriety Ohio’s application of its contemporaneous objection rule in surrounding the case because he had seen a newspaper article this case was not independent of federal law.” For the reasons on it. The judge mentioned some details of the crime, then that follow, we hold that the district court erred in holding continued, “Not only was Mr. Scott – at least from the that the Ohio Supreme Court’s dismissal of this claim does newspaper reports that I think I had read – was involved in not rest on an adequate and independent state ground. this, there were three other--. . . .” At that point, the defense objected, and received a sidebar. The Court gave a curative In the recent published opinion in Coe v. Bell, 161 F.3d 320 instruction explaining the court’s lack of knowledge on the (6th Cir. 1998), this circuit addressed the issue of whether a case beyond the article. Scott moved for a mistrial, which the federal habeas court is required to disregard a state court’s prosecution reluctantly joined. Denying the motion, the Court finding of procedural bar because the state court also issued gave another instruction reiterating its neutrality and the an alternative holding. We explained in Coe that, in contrast jury’s duty to decide based solely on the evidence. to the state court’s statements in Harris that the state had a “well-settled” principle of law that issues which could have Dissenting from Scott’s denial of certiorari, Justices been raised on direct appeal but were not are considered Marshall and Brennan lambasted the Ohio courts for waived, and that petitioner’s claim “could have been raised in upholding such an “extraordinary error” that “overwhelmed [his] direct appeal,” id. at 330 (quoting Harris, 489 U.S. at the presumption of innocence.” Scott v. Ohio, 480 U.S. at 258 (alteration in original)), the state court in Coe “took 925. They also pointed out that empaneling another jury things one step further, . . . and explicitly and clearly said that would have been easy at the voir dire stage. For this reason Coe had no cognizable claim. There was, therefore, a and because the prosecutor joined the mistrial motion, the sufficiently clear and express statement here.” Id. at 330-31. district court found this issue a “close call.” Nonetheless, the It is Coe that governs our analysis here. court found no fundamental unfairness. It viewed the comments as reporting to the jury the media’s conclusion, and Knuckles, on the other hand, is an unpublished opinion, and the fact that even the judge had seen the coverage, in an therefore is not binding upon subsequent panels of the court. attempt to determine the jury’s ability to be impartial. It See 6 Cir. R. 206 (1998). And, in any event, in Knuckles we concluded by noting that the verdict would likely have been did not hold that Ohio’s contemporaneous-objection rule or upheld under Supreme Court precedent even if the jury the Ohio court’s application of that rule was not independent themselves had read the article. of federal law; rather, we held that in that case the Ohio court’s decision that there was no plain error was not We find no error in the district court’s conclusion. The independent of federal law. threat of prejudicial comments from the court usually arises 16 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 37

Here, the district court itself acknowledged that its duty, your efforts must be to arrive at a just verdict. “adequate and independent state ground” analysis was “more Consider all the evidence and make your finding with tenuous” with regard to the unanimity instruction than the intelligence and impartiality, without bias, sympathy or other two claims, because “the Ohio Supreme Court did not prejudice, so that the State of Ohio and the defendant will clearly apply a plain error analysis to Scott’s eighteenth feel that their case was fairly and impartially tried. ground . . .”5 As we have indicated, however, the concluding sentence in the relevant Ohio Supreme Court passage simply We rejected a challenge to the substance of this instruction in did not amount to any type of review, much less one Mapes as well: dependent on or intertwined with federal law. Third, an instruction to a death-sentence jury that it may More importantly—and we use that term advisedly—Harris disregard the statutory criteria for imposing a death specifically instructed state courts that they sentence may be constitutionally impermissible in light of the probability that such an instruction would result in need not fear reaching the merits of a federal claim in an arbitrary and unpredictable results. See California v. alternative holding. By its very definition, the adequate Brown, 479 U.S. 538, 541, 107 S.Ct. 837, 93 L.Ed.2d and independent state ground doctrine requires the 934 (1987). According to the Court, "sentencers may not federal court to honor a state holding that is a sufficient be given unbridled discretion in determining the fates of basis for the state court's judgment, even when the state those charged with capital offenses." Id. Thus, an court also relies on federal law. Thus, by applying this instruction that the jury should not be swayed by "mere doctrine to habeas cases, Sykes curtails reconsideration of sentiment, conjecture, sympathy, passion, prejudice, the federal issue on federal habeas as long as the state public opinion or public feeling" was not only court explicitly invokes a state procedural bar rule as a unobjectionable in Brown, it "serve[d] the useful purpose separate basis for decision. In this way, a state court may of confining the jury's imposition of the death sentence reach a federal question without sacrificing its interests by cautioning it against reliance on [irrelevant,] in finality, federalism, and comity. extraneous emotional factors." Id. at 542, 543, 107 S.Ct. 837. Thus, there is no merit whatsoever to Mapes's Harris, 489 U.S. at 264 n. 10 (citations omitted). Further, the claimed entitlement to a "merciful discretion" instruction, Supreme Court instructed in Coleman that “[a] predicate to in light of the likely tendency of such an instruction to the application of the Harris presumption is that the decision lead to arbitrary differences in whom is selected to be of the last state court to which the petitioner presented his sentenced to death. federal claims must fairly appear to rest primarily on federal law or to be interwoven with federal law.” Coleman, 501 171 F.3d at 415-16 (emphasis omitted, alterations in original). U.S. at 735. As Coleman makes very clear, to apply Harris The district court also correctly relied on Brown, reasoning any more broadly would eviscerate the very foundations of that the instruction followed that decision by warning against the adequate and independent state ground doctrine, which are all emotional responses, both in favor of and against Scott. There was no error as to this instruction either.

5 The court alleviated this concern by finding that the Warden also failed the fourth Maupin prong, the cause and prejudice test. That conclusion was also erroneous, as we will address below. 36 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 17

1982), any error was waived. As was the case in Coe, the federalism, finality and comity. See id. at 730-32, 738-39, state court’s statement could have been clearer and more 749. express, but the test is not whether the state court could have said it better. It is enough that the court specifically held that The state court decision in the case before us here relied the claims were waived; the court’s alternative holding that more obviously on adequate and independent state procedural there was no plain error “does not require us to disregard the grounds than did the state court decision in Coleman itself. state court’s finding of procedural bar.” Coe, 161 F.3d at 330. There, the Virginia Supreme Court granted the state’s motion that requested summary dismissal purely on state procedural We further conclude, however, that the district court grounds, although the court’s use of the phrase “[u]pon correctly determined that neither of these claims had merit. consideration whereof [referring to the parties’ briefs]” The trial judge instructed the jury that its recommendation of suggested that the court may have considered the merits of the death would be “just that – a recommendation,” while a filings as well. Coleman, 501 U.S. at 728. The Supreme recommendation of life imprisonment “is binding upon the Court refused to read this ambiguity as “overriding the court’s Court, and I, the Judge, must impose the specific life sentence explicit grant of a dismissal motion based solely on which you recommend.” Scott claims that this violates the procedural grounds. Those grounds are independent of principle established in Caldwell v. Mississippi, 472 U.S. 320 federal law.” Id. at 744. (1985), that courts must not mislead the jury into believing it has less responsibility than it actually does for choosing the Nothing in the Ohio Supreme Court’s analysis with regard death sentence. to the unanimity instruction suggests that the court relied on federal law. That court explicitly said that Scott had waived We recently rejected this precise claim in Mapes v. Coyle, the error by failing to object at trial, and that it had previously 171 F.3d 408, 414-15 (6th Cir. 1999). Moreover, as the interpreted a state statute to require unanimity anyway. There district court correctly held, Caldwell is limited to situations is no mention of a plain-error analysis, and not even a hint in which the jury is misled as to its role “in a way that allows that federal law played a role in dismissing this claim. And [it] to feel less responsible than it should for the sentencing the Ohio Supreme Court’s concluding sentence in ruling on decision. Thus, to establish a Caldwell violation, a defendant the unanimity instruction, even if it could be viewed as related necessarily must show that the remarks to the jury improperly to federal law, was in addition to and separate from its described the role assigned to the jury by local law.” Romano explicit holding on state procedural grounds. v. Oklahoma, 512 U.S. 1, 9 (1994) (citations and alterations omitted); see also Dugger, 489 U.S. at 407; Kordenbrock, Finally, in Engle v. Isaac, 456 U.S. 107, 124-29 (1982), the 919 F.2d at 1101. As Mapes points out, this instruction Supreme Court specifically found that default imposed for accurately describes Ohio law. There is no error with regard failure to object contemporaneously as required by Ohio’s to this instruction. Rule 30 is an adequate and independent state ground to bar federal habeas review absent a showing of cause and The trial court also instructed the jury: prejudice. In so holding, the Court specifically rejected Scott’s argument: You must not be influenced by any consideration of sympathy or prejudice. It is your duty to carefully weigh Relying upon State v. Long, [...] respondents argue that the evidence to decide all disputed questions of fact, to the Ohio Supreme Court has recognized its power, under apply the instructions of the Court to your findings, and Ohio's plain-error rule, to excuse Rule 30 defaults. Long, to render your verdict accordingly. In fulfilling your however, does not persuade us that the Ohio courts 18 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 35

would have excused respondents' defaults. First, the on that jury, id. at 1040, its requirement of an explicit Long court stressed that the plain-error rule applies only instruction that “a solitary juror may prevent a death penalty in "exceptional circumstances," such as where, "but for recommendation” was prospective only; Brooks did not hold the error, the outcome of the trial clearly would have that all instructions requiring unanimous recommendations of been otherwise." [...] Second, the Long decision itself life or death in previously decided Ohio death-penalty cases refused to invoke the plain-error rule for a defendant who were unconstitutional. See id. at 1042. There is nothing in presented a constitutional claim identical to the one the Brooks opinion to cast doubt on the Ohio Supreme pressed by respondents. Court’s previous approval of Scott’s sentence (or, for that matter, Mapes’s). As we have explained, our Coe decision, See id. at 125 n. 27. In Coleman, the Court also very strongly which well preceded Mapes, explicitly held that unanimity implied its continued disapproval of the rule the district court instructions like those in this case do not violate Mills. The here ascribes to Knuckles. As a preamble to its discussion of Mapes dicta cannot preclude us from following Coe in this independent state grounds, the Court acknowledged that it had case. previously held that Oklahoma’s review for “fundamental trial error” before applying state procedural defaults “was not We further note that the district court was clearly incorrect independent of federal law so as to bar direct review because in finding error in the trial court’s failure to advise the jury in the State had made application of the procedural bar depend its unanimity instruction as to the consequences of deadlock. on an antecedent ruling on federal law.” Coleman, 501 U.S. The Supreme Court has chastised such instructions as at 741 (citing Ake v. Oklahoma, 470 U.S. 68 (1985)) encouraging deadlock and undermining the strong (quotations and alterations omitted). The Coleman Court then governmental interest in unanimous verdicts. See Jones v. distinguished that holding by observing simply that “Ake was United States, 119 S.Ct. 2090, 2099-2100 (1999). We did the a direct review case. We have never applied its rule regarding same in Coe, 161 F.3d at 339-40. independent state grounds in federal habeas. But even if Ake applies here, it does Coleman no good because the Virginia 2. The Trial Court’s Penalty-Phase Instructions Supreme Court relied on an independent state procedural Regarding Considerations of Mercy and Effect of rule.” Id. The Supreme Court, then, does not find the mere Recommendation of Death reservation of discretion to review for plain error in exceptional circumstances sufficient to constitute an As with the challenge to the unanimity instruction, the State application of federal law. Neither Scott nor Knuckles points claims that Scott’s challenges to these two jury instructions to any change in Ohio law that could distinguish Engle or are defaulted because Scott made no contemporaneous Coleman from the present case, and as in Ohio’s Long case objection. The district court held that these claims had not that Engle cites, the Ohio Court here did not invoke its plain- been procedurally defaulted because the Ohio Supreme Court error review for this claim. had performed a plain-error review of each of them. The district court determined, however, that the claims were We issued a similar ruling in Paprocki v. Foltz, 869 F.2d without merit. 281, 284-85 (6th Cir. 1989). There we enforced a default for failure to object contemporaneously in a Michigan court, We think that the district court erred in holding that these although the state courts reserved the right to excuse the claims were not procedurally defaulted. As to each of them, default for “manifest injustice.” We noted that the Ohio Supreme Court explicitly stated that Scott had failed to raise any contemporaneous objection, and under its precedent of State v. Fanning, 437 N.E.2d 583, 585 (Ohio 34 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 19

mitigating factors.” This instruction pertains only to the [w]e would be loath to adopt an exception to the "cause weighing process, and not to the existence of individual and prejudice" rule that would discourage state appellate mitigating or aggravating factors. Indeed, the instruction courts from undertaking the sort of inquiry conducted by references these factors in the past tense, which suggests that the Michigan court, and we do not believe that the state the jurors were to have formed their opinions on the factors’ court's explanation of why the jury instructions resulted existence before attempting to reach unanimity on their net in no manifest injustice can fairly be said to have weight. As in Coe, “[n]othing in this language could constituted a waiver of the procedural default. reasonably be taken to require unanimity as to the presence of a mitigating factor.” 161 F.3d at 338. Whether or not the Id. at 285. Although this statement appears addressed more district court was correct that the instruction violated Ohio towards the determination of whether the state courts actually law by not conforming with the Ohio Supreme Court’s enforced the bar (Maupin’s second prong) instead of its subsequent decision in Brooks (which we find doubtful, given independence from federal law, the reasoning is equally that court’s approval of Scott’s sentence), it does not violate applicable to this discussion. Scott’s federal constitutional rights under Mills and therefore cannot justify habeas relief. All in all, we think it is clear that Knuckles, an unpublished decision of this court, cannot provide persuasive authority to Our conclusion is not altered by the portion of the opinion support a finding that the Ohio Supreme Court did not rely on in Mapes v. Coyle, 171 F.3d 408 (6th Cir. 1999), which an independent state procedural ground in disposing of suggests that such unanimity instructions are erroneous. In Scott’s challenge to the trial court’s penalty-phase instruction that Ohio capital case, we reviewed a similar challenge to a on jury unanimity. virtually identical unanimity instruction. See Mapes, 171 F.3d at 416 (“[Y]ou must unanimously find that the State has In addition to his claim that Ohio’s contemporaneous- failed to prove beyond a reasonable doubt that the aggravating objection rule is not independent of federal law, Scott also circumstances of which the defendant was found guilty of argues that it is not “adequate” because it is not consistently committing outweigh the mitigating factors.”). We stated in enforced. The Supreme Court has held that an independent dicta that this instruction was erroneous because Brooks had state rule must be firmly established and regularly followed in found such instructions to violate the Eighth and Fourteenth order to be adequate. See Ford v. Georgia, 498 U.S. 411, Amendments, but we declined to issue a writ on this ground 423-24 (1991); Byrd v. Collins, No. 96-3209, slip op. at 53 because the petitioner had procedurally defaulted that claim. (6th Cir. Apr. 6, 2000) (following Ford). Scott claims that See id. at 416-17, 419. The only reliance on federal the Ohio Supreme Court has retained “unfettered discretion” constitutional law in Brooks, however, is its citation to Mills to waive the rule and has been “remarkably inconsistent” in in explaining why it would thenceforth require that Ohio applying it. He points to cases where the court ignored jurors be explicitly instructed that “a solitary juror may potential defaults and dismissed on the merits. In State v. prevent a death penalty recommendation by finding that the Zuern, 512 N.E.2d 585, 592 (Ohio 1987), the capital aggravating circumstances in the case do not outweigh the defendant raised his nine constitutional challenges to the mitigating factors.” Brooks, 661 N.E.2d at 1042. Although state’s death penalty statute by a general oral objection rather the Brooks case was remanded for resentencing because the than by a specific motion. The Ohio Supreme Court held that Ohio Supreme Court could not be sure of the effect that the although this technically constituted waiver under Ohio law, instruction to “determine unanimously that the death penalty “because of the nature of the case and the exacting review is inappropriate before you can consider a life sentence” had necessary where the death penalty is involved, [it] reserve[d] 20 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 33

the right to consider the constitutional challenges in particular or more mitigating circumstances, the sentence shall cases.” Id. This somewhat relaxed approach to reviewing a be life imprisonment. claim that was raised, but in an incorrect manner, is a separate matter entirely from Scott’s complete failure to object For both the death verdict and the life imprisonment contemporaneously. In State v. Hamblin, 524 N.E.2d 476, verdict, the jury was told that its verdict must be 479 (Ohio 1988), the capital defendant raised in the appellate unanimous. court two grounds for ineffective assistance of counsel, and added three new grounds in the Supreme Court. Although the Id. at 337 (alterations in original). As in this case, the district new grounds were technically waived, the court said that court in Coe found this instruction to be unacceptable under, “[b]ecause this is a capital case, we will review all five inter alia, Mills, “because there was a reasonable probability arguments relating to the claim of ineffective assistance of that the jurors believed that they could consider only those counsel.” Id. As was the case in Zuern, Hamblin did not mitigating circumstances that they unanimously agreed were involve a completely forfeited issue. In State v. Williams, 528 present.” Id. Coe upheld the instruction because requiring N.E.2d 910, 914 (Ohio 1988), the Court observed that unanimity only as to the results of the weighing process “is a “[b]ecause of the gravity of the sentence that has been far different matter than requiring unanimity as to the imposed on appellant, we have reviewed the record with care presence of a mitigating factor . . . . The instructions say for any errors that may not have been brought to our attention. clearly and correctly that in order to obtain a unanimous In addition, we have considered any pertinent legal arguments verdict, each juror must conclude that the mitigators do not which were not briefed or argued by the parties.” Despite this outweigh the aggravators.” Id. at 338 (emphasis in original). observation, the court affirmed the sentence and did not In this regard, Coe specifically distinguished that instruction discuss any specific error that the parties had not raised. from those at issue in Mills, 486 U.S. at 387 (reviewing a None of these cases involved the contemporaneous-objection verdict form that read “Based upon the evidence we rule. Finally, in State v. Coleman, 544 N.E.2d 622, 627 (Ohio unanimously find that each of the following mitigating 1989), the court did apparently waive the default resulting circumstances which is marked 'yes' has been proven to exist from the defendant’s failure to object contemporaneously to by a preponderance of the evidence and each mitigating a jury instruction: “However, since this is a capital case we circumstance marked 'no' has not been proven by a have reviewed the jury instructions and find not only that preponderance of the evidence” (emphasis omitted)), and there was a correct statement of the law but also that the trial Kubat, 867 F.2d at 369 (“If . . . you unanimously conclude court additionally instructed the jury it could not convict the that there is a sufficiently mitigating factor or factors to defendant of aggravated murder unless it found [specific preclude imposition of the death sentence, you should sign the intent to kill].” verdict form which so indicates.”), which much more clearly required unanimity in the finding of mitigating factors. These cases do indicate that the Ohio Supreme Court employs an abundance of caution in capital cases, and, on Similarly, Scott’s jury was instructed to recommend death occasion, has relaxed its enforcement of default. They do not, if it unanimously found “that the aggravating circumstances however, indicate that Ohio reserves so much leeway in which Jay Scott was found guilty of committing outweigh the capital cases that we are justified here in ignoring its mitigating factors,” and to choose an appropriate life sentence sovereign decision founded upon its own procedural rule. In if it was unanimous in finding “that the State of Ohio failed cases where state procedural grounds have not been enforced to prove that the aggravating circumstances which the by federal courts because they were not firmly established and defendant . . . was found guilty of committing, outweigh the 32 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 21

condemned by Mills v. Maryland, 486 U.S. 367 (1988). The regularly applied, the facts have been much more extreme district court saw the fact that a minority of this Court had than these isolated examples of discretion. See, e.g, Ford, followed Kubat, and the majority had merely distinguished it 498 U.S. at 423-24 (finding state rule governing timing of factually, in Kordenbrock v. Scroggy, 919 F.2d 1091 (6th Cir. Batson challenges to racial makeup of jury not even remotely 1990) (en banc), as evidence that we would follow Kubat close to being “firmly established and regularly followed” here. Therefore, the court found a substantial possibility that because it was a novel rule applied retroactively); Barr v. City the “faulty jury instruction which created this mis-impression of Columbia, 378 U.S. 146, 149 (1964) (rejecting state court’s violated Scott's Fourteenth Amendment right to be free from explanation that petition was worded too generally to have deprivation of life without due process of law.” raised an issue because that court had recently accepted an identically worded appeal); Warner v. United States, 975 F.2d We think that the court’s likening of the instruction given 1207, 1213-14 (6th Cir. 1992) (rejecting Ohio Supreme here to those at issue in Mills and Kubat was incorrect. Those Court’s reliance on failure to raise ineffective assistance on instructions required the jury to be unanimous in its finding direct appeal as reason for default because there was no such of each mitigating factor, whereas this instruction plainly requirement at the time). Rather, this case is more like those applies only to the overall weighing of mitigating and in which some minor inconsistency in applying the rule has aggravating factors. In this regard, Scott’s argument is been noted but held not to be severe enough to override the indistinguishable from the one we recently rejected in Coe v. federalism, finality and comity interests served by enforcing Bell, 161 F.3d 320, 336-39 (6th Cir. 1998). In that case, the bar. See, e.g., Coleman, 501 U.S. at 758 (White, J., concurring) (“Petitioner argues that the Virginia court does in The jury was then given the form its verdict should take: fact waive the rule on occasion, but I am not now convinced that there is a practice of waiving the rule when constitutional (1) We, the Jury, unanimously find the following listed issues are at stake, even fundamental ones. The evidence is statutory aggravating circumstance or circumstances; too scanty to permit a conclusion that the rule is no longer an . . . . . adequate and independent state ground”); Dugger v. Adams, (2) We, the Jury, unanimously find that there are no 489 U.S. 401, 410 n. 6 (1989) (“respondent asserts . . . that mitigating circumstances sufficiently substantial to the Florida Supreme Court has failed to apply its procedural outweigh the [aggravating circumstances] so listed rule consistently and regularly because it has addressed the above. merits in several cases raising Caldwell claims on (3) Therefore, we, the Jury, unanimously find that the postconviction review. In the vast majority of cases, punishment shall be death. however, the [court] has faithfully applied its rule that claims not raised on direct appeal cannot be raised on postconviction The alternate result was then provided for and explained: review”); Byrd, No. 96-3209, slip op. at 53-54 (following If you unanimously determine that no statutory Dugger in holding that four examples of waiver of default by aggravating circumstance has been proved by the Ohio courts are not enough to overcome the vast majority of State beyond a reasonable doubt; or if the Jury cases enforcing the default); Coe, 161 F.3d at 331 (“The few unanimously determine that [aggravating [cases that are not adverse or too old to be relevant] are circumstances] have been proved by the State isolated and unpublished, and so are . . . insufficient to defeat beyond a reasonable doubt; but that said an otherwise ‘strict and regular’ practice”); Shepard v. Foltz, [aggravating circumstances] are outweighed by one 771 F.2d 962, 966 (6th Cir. 1985) (“we [recently] questioned our prior determination whether Michigan enforces a 22 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 31

contemporaneous objection rule with respect to Sandstrom State v. Springer, 586 N.E.2d 96, 97 (Ohio 1992) (syllabus), violations, and, in any event, we held that a federal habeas the court held that when the jury became hopelessly petitioner must meet the Sykes test if the Michigan courts in deadlocked as to sentence, the court is required to impose a fact applied such a rule”). life sentence. In State v. Brooks, 661 N.E.2d 1030 (Ohio 1996), the court reviewed a sentencing instruction that the Application of the adequate and independent state ground jury must unanimously agree that the death penalty is doctrine in this case also requires an assessment of the inappropriate before recommending a life sentence. The court specific state interest served by enforcing the found this contrary to § 2929.03(D)(2). See id. at 1040-41. contemporaneous-objection rule. See Wesselman v. Seabold, Brooks purported to “harmonize” the Jenkins and Springer 834 F.2d 99, 101 (6th Cir. 1987) (noting that resolution of this holdings by requiring an instruction to be given thenceforth prong “turns on the substantiality of the state interest that a solitary juror could prevent the imposition of the death involved”); Maupin, 785 F.2d at 138 (same). This penalty. See id. at 1041-42. The district court found it consideration reinforces the need to enforce the procedural “notable” that Springer and Brooks were decided after Scott’s default here, because the contemporaneous-objection rule has sentence was imposed, but decided that Brooks had simply been lauded as few other procedural requirements have been. clarified, not altered, Ohio law on the subject. It thus found Not only did the Court expressly endorse Ohio’s Rule 30 in the trial court’s instruction requiring unanimity on life to be Engle, but the sweeping language of cases such as United inconsistent with Ohio law. States v. Frady, 456 U.S. 152 (1982) (raising the issue under the Federal Rules), suggests that the Court places high Since “the fact that the instruction was allegedly incorrect importance on the contemporaneous-objection rule regardless under state law is not a basis for habeas relief,” see Estelle v. of jurisdiction: McGuire, 502 U.S. 62, 71-72 (1991), the district court went on to observe that the “instructions left no room for the jury Orderly procedure requires that the respective to believe the court could accept anything other than a adversaries’ views as to how the jury should be unanimous recommendation, and gave no direction to the jury instructed be presented to the trial judge in time to enable as to the effect a jury split would have on the jury’s prior him to deliver an accurate charge and to minimize the determination of guilt, or on the sentence the trial court could risk of committing reversible error. It is the rare case in or would then impose on Scott.” The court then followed which an improper instruction will justify reversal of a Kubat v. Thieret, 867 F.2d 351 (7th Cir. 1989), which found criminal conviction when no objection has been made in a similar instruction to create the impermissible possibility the trial court. that individual jurors would believe that unanimity was required as to the existence of mitigating factors, the result Id. at 165-66 (quoting Henderson v. Kibbe, 431 U.S. 145, 154 (1977)). Perhaps nowhere, however, has this conviction been stated more strongly than in Sykes: open court.” Id. This rule was available to Scott’s trial court. Even The contemporaneous-objection rule itself is by no without this rule, moreover, the Jenkins court found that any potential means peculiar to Florida, and deserves greater respect ambiguity in the unanimity instruction was resolved by the than Fay gives it, both for the fact that it is employed by “well-recognized [rule] that when statutes allow a jury in a criminal a coordinate jurisdiction within the federal system and proceeding to influence punishment, such as the recommendation of life imprisonment in place of death, and the statute fails to expressly authorize for the many interests which it serves in its own right. A a nonunanimous vote, the jury cannot secure the lesser punishment absent contemporaneous objection enables the record to be unanimity.” Id. 30 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 23

After you have retired, first, select a foreman or made with respect to the constitutional claim when the forelady and when all 12 of you – I repeat – all 12 of you recollections of witnesses are freshest, not years later in agree upon a verdict, you will sign the verdict in ink, and a federal habeas proceeding. It enables the judge who advise the Court of this fact. You will remain in the jury observed the demeanor of those witnesses to make the room until summoned back into the courtroom. When factual determinations necessary for properly deciding you return to the courtroom, your verdict will be returned the federal constitutional question. While the 1966 to me, as you did before, and I will read it for you. amendment to § 2254 requires deference to be given to such determinations made by state courts, the (emphasis added by district court). This was based on the determinations themselves are less apt to be made in the following provision of Ohio law: first instance if there is no contemporaneous objection to the admission of the evidence on federal constitutional If the trial jury unanimously finds, by proof beyond a grounds. reasonable doubt, that the aggravating circumstances the A contemporaneous-objection rule may lead to the offender was found guilty of committing outweigh the exclusion of the evidence objected to, thereby making a mitigating factors, the trial jury shall recommend to the major contribution to finality in criminal litigation. court that the sentence of death be imposed on the Without the evidence claimed to be vulnerable on federal offender. Absent such a finding, the jury shall constitutional grounds, the jury may acquit the defendant, recommend that the offender be sentenced to [one of the and that will be the end of the case; or it may nonetheless following life imprisonment terms]. convict the defendant, and he will have one less federal constitutional claim to assert in his federal habeas Ohio Rev. Code § 2929.03(D)(2) (emphasis added by district petition. If the state trial judge admits the evidence in court). It was clear to the district court that the statute did not question after a full hearing, the federal habeas court require unanimity in recommending a life sentence, but rather pursuant to the 1966 amendment to § 2254 will gain mandated life imprisonment if the jury reached anything but significant guidance from the state ruling in this regard. unanimity on death. The court also reviewed three decisions Subtler considerations as well militate in favor of of the Ohio Supreme Court interpreting § 2929.03(D)(2). The honoring a state contemporaneous-objection rule. An first, State v. Jenkins, 473 N.E.2d 264, 270 (Ohio 1984) objection on the spot may force the prosecution to take a (syllabus ¶ 10), held that a jury’s recommendation of7 life hard look at its hole card, and even if the prosecutor imprisonment under that section must be unanimous. In thinks that the state trial judge will admit the evidence he must contemplate the possibility of reversal by the state appellate courts or the ultimate issuance of a federal writ 7 of habeas corpus based on the impropriety of the state The district court suggested in its Order that the Jenkins decision was available to the trial court when it sentenced Scott, but we think this court's rejection of the federal constitutional claim. is clearly wrong. Scott’s sentencing-phase jury recommended the death We think that the rule of Fay v. Noia, broadly stated, penalty on March 28, 1984, and the court adopted the recommendation on may encourage "sandbagging" on the part of defense April 4, 1984, but Jenkins was not released until December 17, 1984. lawyers, who may take their chances on a verdict of not Nevertheless, the Ohio Supreme Court approved of the unanimity instruction in Jenkins with such sweeping language as to suggest that the guilty in a state trial court with the intent to raise their question was well-settled under Ohio law. See Jenkins, 473 N.E.2d at constitutional claims in a federal habeas court if their 307. The Court relied almost exclusively on Ohio Crim. R. 31(A), which initial gamble does not pay off. The refusal of federal provided: “The verdict shall be unanimous. It shall be in writing, signed habeas courts to honor contemporaneous-objection rules by all jurors concurring therein, and returned by the jury to the judge in 24 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 29

may also make state courts themselves less stringent in On the other hand, if after considering all of the their enforcement. Under the rule of Fay v. Noia, state relevant evidence raised at trial, the testimony, other appellate courts know that a federal constitutional issue evidence, the statement of Jay Scott, and the arguments raised for the first time in the proceeding before them of counsel, you find that the State of Ohio failed to prove may well be decided in any event by a federal habeas that the aggravating circumstances which the defendant, tribunal. Thus, their choice is between addressing the Jay Scott, was found guilty of committing, outweigh the issue notwithstanding the petitioner's failure to timely mitigating factors, then you will return your verdict object, or else face the prospect that the federal habeas reflecting your decision. court will decide the question without the benefit of their In this event, you will then proceed to determine which views. of two possible life imprisonment sentences to The failure of the federal habeas courts generally to recommend to the Court. [...] require compliance with a contemporaneous-objection Now, ladies and gentlemen, let me, first of all, before rule tends to detract from the perception of the trial of a we continue, before I read to you what your verdict is, criminal case in state court as a decisive and portentous you see it is almost identical, and when I say “It is almost event. A defendant has been accused of a serious crime, identical,” to the forms that you have received before. It and this is the time and place set for him to be tried by a says, and I just picked them up the way they were, jury of his peers and found either guilty or not guilty by “Sentencing Proceeding” on the top, and it identifies the that jury. To the greatest extent possible all issues which case, the case number, and then it says, “Verdict: We, the bear on this charge should be determined in this jury in this case being duly empaneled and sworn, do find proceeding: the accused is in the court-room, the jury is beyond a reasonable doubt that the aggravating in the box, the judge is on the bench, and the witnesses, circumstances which the defendant, Jay Scott, was found having been subpoenaed and duly sworn, await their turn guilty of committing, are sufficient to outweigh the to testify. Society's resources have been concentrated at mitigating factors presented in this case. that time and place in order to decide, within the limits of “We, the jury, recommend that the sentence of death human fallibility, the question of guilt or innocence of be imposed upon the defendant, Jay Scott,” and, again, one of its citizens. Any procedural rule which signed by the foreman or forelady and all 12 of you must encourages the result that those proceedings be as free sign. of error as possible is thoroughly desirable, and the The second form is: “We, the jury in this case being contemporaneous-objection rule surely falls within this duly empaneled and sworn, do find that the aggravating classification. circumstances which the defendant, Jay Scott, was found We believe the adoption of the Francis rule in this guilty of committing, are not sufficient to outweigh the situation will have the salutary effect of making the state mitigating factors present in this case. trial on the merits the "main event," so to speak, rather “We, the jury, recommend that the defendant, Jay than a "tryout on the road" for what will later be the Scott, be sentenced to life imprisonment with parole determinative federal habeas hearing. There is nothing eligibility after sentencing,” and then there’s a blank with in the Constitution or in the language of § 2254 which an asterisk which refers down and says, “insert years of requires that the state trial on the issue of guilt or imprisonment,” and again, the signatures, and the first innocence be devoted largely to the testimony of fact line is reserved for the foreman or forelady, and the witnesses directed to the elements of the state crime, remainder of the eleven of you must sign that verdict while only later will there occur in a federal habeas form. It must be unanimous. [...] 28 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 25

sentencing phase of a capital trial. See id. The Court hearing a full airing of the federal constitutional claims observed that although it would not attempt to define “what which were not raised in the state proceedings. If a it means to be ‘actually innocent’ of a death sentence,” id., it criminal defendant thinks that an action of the state trial could not find such extraordinary injustice under the facts of court is about to deprive him of a federal constitutional that case, where the mitigating and aggravating factors had right there is every reason for his following state been found to be equal. See id. Scott has made no attempt to procedure in making known his objection. demonstrate this kind of fundamental miscarriage of justice, and we are confident that he cannot do so. Sykes, 433 U.S. at 88-90 (footnote omitted, emphasis added). Certainly, Ohio’s rule passes the third Maupin prong in this Accordingly, we hold that the district court erred in case. concluding that Scott’s claim of constitutional error with regard to the penalty-phase unanimity instruction was not (c). The Fourth Maupin Prong – The Cause and procedurally defaulted, and in further concluding that even if Prejudice Test the claim were defaulted, Scott demonstrated cause and prejudice to excuse the procedural default. We further hold The district court’s primary rationale for excusing that the Ohio Supreme Court relied on Ohio’s procedural default as to the unanimity instruction claim was contemporaneous-objection rule—an adequate and that Scott had shown cause and prejudice to excuse his failure independent state ground—in holding that this claim had been to object. The court’s only explanation of cause is that “Scott defaulted; that Scott failed to demonstrate cause and prejudice reasonably believed a contemporaneous objection would be to excuse the default, and that the district court erred in futile” because, as demonstrated in the Ohio Supreme Court’s reaching the merits of this claim. We therefore REVERSE three-sentence disposition of this claim, that court’s precedent the district court’s issuance of a writ of habeas corpus. at the time required jury verdicts as to both guilt and life sentences to be unanimous. The United States Supreme (d). The Merits of Scott’s Challenge to the Unanimity Court, however, has explicitly rejected this idea: Instruction the futility of presenting an objection to the state courts Nevertheless, out of an abundance of caution and in order cannot alone constitute cause for a failure to object at to clarify our precedents governing sentencing-phase trial. If a defendant perceives a constitutional claim and instructions on jury unanimity, we will consider in the believes it may find favor in the federal courts, he may alternative the merits of Scott’s challenge. The unanimity not bypass the state courts simply because he thinks they instruction given to Scott’s jury read: will be unsympathetic to the claim. Even a state court that has previously rejected a constitutional argument If all 12 members of the jury find, by proof beyond a may decide, upon reflection, that the contention is valid. reasonable doubt, that the aggravating circumstances Allowing criminal defendants to deprive the state courts which Jay Scott was found guilty of committing of this opportunity would contradict the principles outweigh the mitigating factors, then you must return supporting Sykes. such a finding to the Court. I instruct you as a matter of law that if you make such a finding, then you have no choice and must recommend to the Court that the sentence of death be imposed upon the defendant, Jay Scott. [...] 26 Scott v. Mitchell Nos. 98-4272/4321 Nos. 98-4272/4321 Scott v. Mitchell 27

Engle, 456 U.S. at 130 (footnotes omitted). Scott does not resulting from instruction error be evaluated in the total address cause and prejudice on appeal,6 and even if he did he context of the events at trial. As we have often would be hard-pressed to distinguish this holding; it was emphasized[,] a single instruction to a jury may not be made in the context of Ohio’s contemporaneous-objection judged in artificial isolation, but must be viewed in the rule, and the Court has said “that the standard for cause context of the overall charge. Moreover, a judgment of should not vary depending on the timing of a procedural conviction is commonly the culmination of a trial which default or on the strength of an uncertain and difficult includes testimony of witnesses, argument of counsel, assessment of the relative magnitude of the benefits receipt of exhibits in evidence, and instruction of the jury attributable to the state procedural rules [involved].” Murray by the judge. Thus not only is the challenged instruction v. Carrier, 477 U.S. 478, 491 (1986). but one of many such instructions, but the process of instruction itself is but one of several components of the The district court’s finding of prejudice was based on the trial which may result in the judgment of conviction. merits of Scott’s claim, and on its conclusion that the sentencing proceedings might reasonably have come to a Id. at 169 (internal quotations, citations, and alterations different result absent the instruction of which Scott omitted). Presumably, this same approach applies to jury complains. Of course, evaluating the merits to determine the instructions in the sentencing phase as well. Our review of applicability of procedural default is circular and undermines the briefs and record leaves us convinced that there is no such the federalism concerns behind the doctrine. Moreover, while prejudice here. Scott offers no help in making that Sykes left open the definition of “prejudice,” Frady assessment, however, and, in any event, we find that Scott “eliminate[d] any doubt about its meaning for a defendant cannot show cause for his default. who has failed to object to jury instructions at trial,” Frady, 456 U.S. at 168: Although neither the district court nor Scott mentions it, it is worth noting that an exception to the requirement that a [Henderson] summarized the degree of prejudice we federal habeas petitioner demonstrate cause and prejudice in have required a prisoner to show before obtaining order to obtain review of his defaulted claims may be made collateral relief for errors in the jury charge as "whether when the petitioner is able to demonstrate that failure to the ailing instruction by itself so infected the entire trial consider those claims will result in a “fundamental that the resulting conviction violates due process, not miscarriage of justice.” Coleman, 501 U.S. at 750; Engle, merely whether the instruction is undesirable, erroneous, 456 U.S. at 135. The Court has explained that although, or even universally condemned." We reaffirm this ordinarily, petitioners who can show a fundamental formulation, which requires that the degree of prejudice miscarriage of justice will also be able to meet the cause and prejudice requirement, in extraordinary cases, “where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas 6 Instead, Scott argues that even if we find procedural default, we court may grant the writ even in the absence of a showing of should at least review his claim for plain error. The Supreme Court cause for the procedural default.” Carrier, 477 U.S. at 496; rejected precisely this contention in Frady, 456 U.S. at 164-65, noting that Dugger, 489 U.S. at 410 n. 6. In Dugger, the Court noted that to apply the same “plain-error” review to a habeas petition that would apply on direct appeal destroys any respect for the finality of the state this exception will apply to death sentences only in court judgment and allows the petition to function as a second appeal. extraordinary cases, given the difficulty of translating the The Court was very clear that the cause and prejudice test must be used concept of actual innocence from the guilt phase to the instead.